MASTER LEASE
BETWEEN
MOVIEPLEX REALTY LEASING, L.L.C.,
as Landlord
AND
CARMIKE CINEMAS, INC.,
as Tenant
Dated: November 20, 1997
THIS LEASE AND THE LEASED PROPERTY COVERED HEREBY HAVE BEEN ASSIGNED TO
AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF WACHOVIA BANK, N.A., AS AGENT
(THE "AGENT") UNDER AND TO THE EXTENT SET FORTH IN MORTGAGES AND ASSIGNMENTS OF
RENTS, EACH DATED THE DATE HEREOF, BY LANDLORD IN FAVOR OF THE AGENT AS SUCH
AGREEMENTS MAY BE SUPPLEMENTED, AMENDED, OR MODIFIED FROM TIME TO TIME IN
ACCORDANCE WITH THE PROVISIONS THEREOF. TO THE EXTENT, IF ANY, THAT THIS LEASE
CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN ANY APPLICABLE STATE), NO SECURITY INTEREST IN THIS LEASE
MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART HEREOF
OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE
COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY THE AGENT ON OR
IMMEDIATELY FOLLOWING THE SIGNATURE PAGE HEREOF OR THEREOF.
MASTER LEASE
THIS MASTER LEASE is dated November 20, 1997 between MOVIEPLEX REALTY
LEASING, L.L.C., a New Jersey limited liability company having an address at 0
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, as Landlord, and
CARMIKE CINEMAS, INC., a Delaware corporation having an address at 0000 Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx 00000-0000, as Tenant.
FOR AND IN CONSIDERATION of the premises and of the mutual
representations, covenants and agreements herein set forth, the Landlord and the
Tenant, each binding itself, its successors and assigns, do mutually promise,
covenant and agree as follows; provided that in the performance of the
agreements of the Landlord herein contained, any obligation it may incur for the
payment of money with respect to the Bonds shall be payable solely from the
Trust Estate or from the liquidation of collateral pledged by the Landlord as
security for its performance under the Indenture:
ARTICLE 1. DEFINITIONS AND USAGE
Section 1.1. Definitions. Capitalized terms used but not defined in
this Lease shall have the meanings given to them in the Indenture or the
Reimbursement Agreement, as the case may be. In addition, the following terms
shall have the meanings specified in this Article, unless the context otherwise
requires.
"Account" means any account established in any of the Funds established
under the Indenture.
"Additional Bonds" means any Series of Additional Bonds issued pursuant
to Section 2.05(A) of the Indenture.
"Additional Rent" has the meaning given to it in Section 3.8(a)(ii).
"Adjusted Cash Flow" means, for any period, Consolidated Operating
Income for such period, plus, to the extent deducted in determining the amount
thereof, (i) Rental Obligations (less any principal portion of any Off-Balance
Sheet Leases), (ii) depreciation and amortization, and (iii) any aggregate net
income during such period arising from the sale, exchange or other distribution
of capital assets, provided that the total amount so included pursuant to this
clause (iii) shall not exceed 5% of Consolidated Operating Income for such
period.
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii) any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii) any other
Person of which such Person owns, directly or indirectly, 20% or more of the
common stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agency and Development Agreement" means the Agency and Development
Agreement dated the date hereof between the Landlord and the Tenant, a copy of
which is attached hereto as Exhibit A, pursuant to which, among other things,
the Tenant agrees to act as development agent for the Landlord for the purpose
of selecting the Individual Properties and constructing the Applicable Projects.
"Agent" means, (i) initially, Wachovia Bank, N.A., and its successors
and assigns in that capacity as agent for the Financial Institutions issuing the
Letters of Credit, and (ii) thereafter, either (A) in the event that only one
Alternate Letter of Credit is outstanding, the Financial Institution issuing
such Alternate Letter of Credit or (B) in the event that there are no Letters of
Credit or Alternate Letters of Credit outstanding, the Trustee.
"Aggregate Fair Market Value" means the aggregate fair market value of
the Individual Properties comprising the Leased Property, as determined and
confirmed by the appraisals delivered by the Tenant to the Landlord and the
Agent pursuant to Sections 6(b) and 7(e)(v) of the Agency and Development
Agreement.
"Allocable Costs" means, with respect to any Individual Property, the
Costs allocable to such Individual Property.
"Alterations" shall have the meaning given to such term in Section
11.1.
"Alternate Letters of Credit" means, collectively, any and all
irrevocable, direct-pay letters of credit issued in confirmation of, or in
replacement or substitution for, any Letters of Credit or Alternate Letters of
Credit, which (i) authorize drawings thereunder by the Trustee, (ii) are issued
by one or more national banking associations, banks, trust companies or other
financial institutions which are Eligible Lenders and (iii) satisfy the
requirements of Section 5.08 of the Indenture.
"Applicable Acquisition Agreement" means, with respect to each
Individual Property, the agreement between the Landlord, as purchaser or ground
lessee, as the case may be, and the seller of such Individual Property, as
seller or ground lessor, as the case may be, pursuant to which the Landlord has
agreed or will agree to purchase or ground lease such Individual Property.
"Applicable Approvals" means, with respect to each Individual Property,
all permits, approvals and authorizations, including without limitation site
plan approval or similar land development approvals, which are required under
Legal Requirements or by Governmental Authorities in connection with the
acquisition or lease of such Individual Property, the construction of the
Improvements and the Off-Site Improvements and the other activities constituting
part of the Applicable Project.
"Applicable Assignment of Rents" means, with respect to each Individual
Property, the assignment of rents pursuant to which the Landlord assigns to the
Agent all of the Landlord's right, title and interest in and to all leases
affecting or relating to such Individual Property.
"Applicable Completion Date" means, with respect to each Individual
Property, the date as of which the Improvements thereon are substantially
completed, as such date shall be evidenced by a final certificate of occupancy
issued by the applicable Governmental Authority and certified by the Tenant to
the Landlord and the Agent pursuant to Section 7(e) of the Agency and
Development Agreement.
"Applicable Construction Agreement" means, with respect to each
Individual Property, the agreement or agreements between the Landlord and any
contractor(s) with respect to the construction of the Improvements on or at such
Individual Property.
"Applicable Margin" means the Applicable Margin as set forth on the
Letter of Credit Fee Pricing Schedule Matrix attached hereto and made a part
hereof as Exhibit B, as the same may be amended or replaced from time to time.
"Applicable Mortgage" means, with respect to each Individual Property,
the fee or leasehold mortgage and security agreement, deed of trust or similar
document pursuant to which the Landlord grants to the Agent a first lien on and
security interest in and to its interest in such Individual Property.
"Applicable Plans and Specifications" means, with respect to each
Individual Property, the architectural and engineering drawings and
specifications describing the construction of the Improvements thereon which
have been prepared for and accepted by the Tenant and which are approved by the
Landlord and the Agent prior to the commencement of any construction with
respect to the Applicable Project.
"Applicable Project" means, with respect to each Individual Property,
the acquisition or lease, construction, renovation or installation of such
Individual Property, the Improvements thereon and the Off-Site Improvements
relating thereto, including any expansion of, or additional equipment installed
in, any Individual Property, which is funded in whole or in part by the proceeds
of the issuance of the Bonds, for use by the Tenant pursuant to this Lease or
any Lease Supplement.
"Applicable State" means, with respect to each Individual Property, the
state or commonwealth within which such Individual Property, or any portion
thereof, is located.
"Assignments of Rents" means, collectively, all of the Applicable
Assignments of Rents from time to time.
"Assumed Rate" shall mean six (6%) percent per annum.
"Authorized Officer" or "Authorized Representative" means, (1) with
respect to the Landlord: any manager of the Landlord; (2) with respect to the
Tenant: the President, any Executive Vice President or any Vice President or
such other person at the time and from time to time designated by written
certificate furnished to the Landlord and the Trustee containing the specimen
signatures of such person and signed on behalf of the Tenant by the Secretary or
Assistant Secretary of the Tenant; (3) with respect to the Trustee: any officer
of the Trustee authorized by the Trustee to act or execute documents on behalf
of the Trustee; and (4) with respect to the Agent: any officer.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C.
ss.ss.101 et seq.) as amended from time to time, and any successor statute
thereto.
"Basic Rent" means the rent required to be paid pursuant to the
provisions of Section 3.5.
"Basic Rent Commencement Date" means the earlier of (i) the Final
Project Completion Date or (ii) the date on which there are insufficient moneys
available in the Capitalized Interest Account or the Capitalized Interest
Reserve Account to make a payment then due on the Bonds or (iii) the date on
which there are insufficient funds in the Financing Costs Account to make a
payment of Financing Costs then due and payable.
"Basic Rent Payment" means the payment of Basic Rent.
"Basic Rent Payment Date" means, on and after the Basic Rent
Commencement Date, (A) the first Monday of each month, or if such Monday is not
a Business Day, the next succeeding Business Day, and (B) on and after any date,
with respect to a prepayment of Rent or acceleration of amounts due under this
Lease, the Prepayment Date or date of acceleration, as the case may be.
"Board of Directors" means the Board of Directors of the Tenant or a
duly authorized committee of directors lawfully exercising the relevant powers
of such Board.
"Bond" or "Bonds" means any one or more of the Series A Bonds or the
Series B Bonds or of any Series of Additional Bonds or Refunding Bonds or any
Bonds which are thereafter authenticated and delivered in lieu of or in
substitution for such Bonds pursuant to the Indenture.
"Bond Fund" means the Fund so designated and established by the
Indenture.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in Georgia are authorized by law to close.
"Capital Lease" as applied to any Person, means any lease of any
property (whether real, personal or mixed) by such Person as lessee which would,
in accordance with GAAP, be required to be classified and accounted for as a
capital lease on the balance sheet of such Person, other than, in the case of
the Tenant or a Restricted Subsidiary, any such lease under which the Tenant or
a Wholly Owned Restricted Subsidiary is the lessor.
"Capital Lease Obligations" means, with respect to any Capital Lease,
the amount of the obligations of the lessee thereunder which would, in
accordance with GAAP, appear on a balance sheet of such lessee (or the notes
thereto) in respect of such Capital Lease.
"Capitalization Rate", as used in Section 8.2, means the rate of return
on investment required by a purchaser or an owner of income-producing real
property, which return consists of Net Operating Income to be generated by such
real property.
"Capitalized Interest Account" means the account within the Project
Fund so designated and established by the Indenture.
"Capitalized Interest Costs" means all deposits in the appropriate
Funds and Accounts established under the Indenture for payment of capitalized
interest on the Bonds.
"Certificate," "Order," "Request," "Requisition" and "Statement" means,
respectively, a written certificate, order, request, requisition or statement
signed by an Authorized Representative of the Landlord, the Trustee or the
Agent. Any such instrument and supporting opinions or representations, if any,
may, but need not, be combined in a single instrument with any other instrument,
opinion or representation, and the instruments so combined shall be read and
construed as a single instrument. Any requisition signed by an Authorized
Representative of the Tenant requesting the disbursement of funds from the
Project Fund for Costs of the Projects shall have also been signed by an
Authorized Representative of the Landlord and of the Agent evidencing their
approval thereof.
"Change of Control" means the occurrence of either of the following:
(i) the consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any "person" or "group" (as
such terms are used in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended) becomes the beneficial owner of more of the voting power of the
outstanding voting stock of the Tenant than that beneficially owned by the
"Xxxxxxx Family" (as defined in the Credit Agreement) or (ii) the first day on
which more than a majority of the members of the Board of Directors of the
Tenant are not Continuing Directors.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commencement Date" means the date of the issuance of the Bonds.
"Communications" shall have the meaning given to such term in Section
26.1.
"Compliance Certificate" shall have the meaning given to such term in
Section 2.1(s)(iii).
"Consolidated Cash Flow" means, for any period, the sum of Consolidated
Operating Income of the Tenant, and its Restricted Subsidiaries, plus to the
extent deducted in determining such Consolidated Operating Income (i)
depreciation and amortization and (ii) any aggregate net income during such
period arising from the sale, exchange or other distribution of capital assets;
provided, however, that the total amount so included pursuant to this clause
(ii) shall not exceed 5% of Consolidated Operating Income for such period;
provided further, however, that, in calculating Consolidated Cash Flow for any
such period, any acquisition or disposition of assets that shall have occurred
during such period will be deemed to have occurred at the beginning of such
period; provided further, however, that (x) for purposes of determining the
ratio of Consolidated Funded Debt to Consolidated Cash Flow, Rent paid under
this Lease or any other Off-Balance Sheet Lease which has been deducted in
computing Consolidated Net Income shall be added back in computing Consolidated
Cash Flow, and (y) with respect to any Individual Property which was acquired or
ground leased by the Landlord within the 12-month period ending on the date of
the determination of Consolidated Cash Flow. Consolidated Cash Flow shall
include Theater-Level EBITDA with respect to such Individual Property and shall
be determined on the basis of actual Theater-Level EBITDA within such period and
projected Theater-Level EBITDA for the remainder of such period (with such
projections being based on the average Theater-Level EBITDA of comparable
theater properties of the Tenant which were operated during the entire 12-month
period).
"Consolidated Funded Debt" means at any date the Funded Debt of the
Tenant and its Restricted Subsidiaries, determined on a consolidated basis as of
such date.
"Consolidated Net Income" means for any period, the net income (or
deficit) of the Tenant and its Restricted Subsidiaries for such period in
question (taken as a cumulative whole) after deducting, without duplication, all
operating expenses, provisions for all taxes and reserves (including reserves
for deferred income taxes) and all other proper deductions, all determined in
accordance with GAAP on a consolidated basis, after eliminating material
inter-company items in accordance with GAAP and after deducting portions of
income properly attributable to outside minority interests, if any, in
Subsidiaries; provided, however, that there shall be excluded (a) any income or
deficit of any other Person accrued prior to the date it becomes a Subsidiary or
merges into or consolidates with the Tenant or another Subsidiary, (b) the net
income in excess of an amount equal to 5% of Consolidated Net Income for such
period before giving effect to this clause (b) (or deficit) of any Person (other
than a Subsidiary) in which the Tenant or any Subsidiary has any ownership
interest, except to the extent that any such income has been actually received
by the Tenant or such Subsidiary in the form of cash dividends or similar
distributions, and provided that the resulting income is generated by lines of
businesses substantially similar to those of the Tenant and its Restricted
Subsidiaries taken as a whole during the fiscal year ended December 31, 1996,
(c) any restoration to income of any contingency reserve, except to the extent
that provision for such reserve was made out of income accrued during such
period, (d) any deferred credit or amortization thereof from the acquisition of
any properties or assets of any Person, (e) any aggregate net income (but not
any aggregate net loss) during such period arising from the sale, exchange or
other distribution of capital assets (such term to include all fixed assets,
whether tangible or intangible, all inventory sold in conjunction with the
disposition of fixed assets and all securities) to the extent the aggregate
gains from such transactions exceed losses from such transactions, (f) any
impact on the income statement resulting from any write-up of any assets after
the Effective Date (as defined in the Credit Agreement), (g) any items properly
classified as extraordinary in accordance with GAAP, (h) proceeds of life
insurance policies to the extent such proceeds exceed premiums paid to maintain
such life insurance policies, (i) any portion of the net income of a Restricted
Subsidiary which is unavailable for the payment of dividends to the Tenant or a
Restricted Subsidiary, (j) any gain arising from the acquisition of any debt
securities for a cost less than principal and accrued interest, (k) in the case
of a successor to the Tenant by permitted consolidation or merger or transfer of
assets pursuant to Section 2.1(bb), any earnings, of such successor or
transferee prior to the consolidation, merger or transfer of assets and (1) any
earnings on any Investments of the Tenant or any Subsidiary except to the extent
that such earnings are received by the Tenant or such Subsidiary as cash,
provided that earnings which would otherwise be excluded from Consolidated Net
Income pursuant to the preceding provisions of this clause (1) shall be included
in Consolidated Net Income but only to the extent that such earnings are
attributable to the net income of any Person (other than a Subsidiary) in which
the Tenant or any Subsidiary has any ownership interest and such net income is
not otherwise excluded from Consolidated Net Income by virtue of clause (b) of
this definition.
"Consolidated Net Worth" means as of any date of determination (a) the
sum of (i) the net book value (after deducting related depreciation,
obsolescence, amortization, valuation and other proper reserves other than any
such reserve maintained in accordance with GAAP in connection with the use of
the last-in-first-out method of inventory valuation) at which the assets of the
Tenant and its Restricted Subsidiaries would be shown on a consolidated balance
sheet at such date prepared in accordance with GAAP, but excluding any amount on
account of write-ups of assets after the date of the most recent audited
financial statements delivered pursuant to Section 2.1(s), and (ii) the net book
value of the Leased Property and all other property leased by the Tenant and its
Subsidiaries pursuant to Off-Balance Sheet Leases minus (b) the sum of (i) the
net book value of all items of the following character to the extent, if any,
they are included in consolidated assets of the Tenant and its Restricted
Subsidiaries or deducted from consolidated liabilities of the Tenant and its
Restricted Subsidiaries: (A) Investments which, solely by reason of the
description in clause (c) of the definition of Restricted Investments, do not
constitute Restricted Investments, and (B) Restricted Investments made as
permitted by the provisions of Section 2.1(w), and (ii) the amount at which the
consolidated liabilities of the Tenant and its Restricted Subsidiaries (other
than capital stock and surplus) would be shown on such balance sheet, and
including as liabilities all reserves for contingencies and other potential
liabilities and all minority interests in Restricted Subsidiaries.
"Consolidated Operating Income" means, for any period, Consolidated Net
Income for such period plus, to the extent deducted in determining the amount
thereof, (i) the aggregate amount paid, or required to be paid, in cash by the
Tenant and its Restricted Subsidiaries in respect of income taxes (including
deferred taxes) during such period plus (ii) Interest Expense.
"Consolidated Subsidiary" means, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP.
"Consolidated Total Capitalization" means, at any time, the sum of: (i)
Consolidated Net Worth, and (ii) Consolidated Funded Debt.
"Continuing Director" means, as of any date of determination, any
member of the Board of Directors of the Tenant who (i) was a member of such
Board of Directors on the Commencement Date or (ii) was nominated for election
or elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Contractor" means, with respect to each Applicable Project, any
contractor selected by the Tenant, with the approval of the Landlord and the
Agent, to construct, renovate and install such Applicable Project.
"Costs" or "Costs of the Projects" means (i) all Hard and Soft Costs,
plus (ii) all Financing Costs, plus (iii) all Capitalized Interest Costs, minus
(iv) all interest earned prior to the Final Project Completion Date on all
amounts held in the Funds and Accounts under the Indenture.
"Credit Agreement" means the Credit Agreement dated October 17, 1997
among Tenant, each of the banks listed therein and Wachovia Bank, N.A., as
agent, as heretofore amended, modified and supplemented.
"Current Debt" means as at any date of determination all Debt for
borrowed money maturing or payable on demand or within one year from the date of
the creation thereof including any Debt that is by its terms or by the terms of
any instrument or agreement relating thereto directly or indirectly renewable or
extendible, at the option of the debtor, to a date beyond such year, including
any outstanding amounts of any revolving credit facility, but excluding any
fixed or contingent payments maturing or required to be made not more than one
year after such date in respect of the principal and premium, if any, on any
Funded Debt. Any Debt that is extended or renewed shall be deemed to have been
created at the date of such extension or renewal.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under Capital Leases,
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations (absolute or contingent) of such Person to reimburse any
bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, (viii) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person, and (ix) all
Debt of others Guaranteed by such Person. In determining the Debt and assets of
any Person, no effect shall be given to deposits, trust arrangements or similar
arrangements which, in accordance with GAAP, extinguish Debt for which such
Person remains legally liable, except Debt shall not include the promissory note
of the Tenant in a principal amount not to exceed $3,622,974 and bearing
interest at the rate of 10.083% per annum payable to Columbus Bank and Trust
Company, and any extensions and renewals thereof, provided the proceeds of such
promissory note are used to pay the full purchase price of a certificate of
deposit (the "IRB Certificate of Deposit"), such promissory note (and any such
extension or renewal thereof) is secured by the pledge of such IRB Certificate
of Deposit issued by Columbus Bank and Trust Company in an amount and bearing
interest at a rate sufficient to pay all obligations under such promissory note,
such promissory note is nonrecourse to the Tenant or to any Restricted
Subsidiary except to such IRB Certificate of Deposit and the obligation under
such promissory note is not, in accordance with GAAP, to be classified on its
balance sheet as debt.
"Default" means an event or condition the occurrence of which would,
with the lapse of time or the giving of notice or both, become an Event of
Default.
"Deferred Maintenance Obligation" *[material omitted]
"EastWynn" means EastWynn Theaters, Inc., an Alabama corporation and a
wholly owned subsidiary of the Tenant.
"Environmental Requirements" means all present and future statutes,
regulations, rules, ordinances, permits, approvals and similar items of all
Governmental Authorities relating to the protection of the environment
including, without limitation, those statutes regulating the use, transport,
storage, disposal, discharge, release or threatened release of Hazardous
Substances applicable to the Leased Property and the Off-Site Improvements
(until legal title to any portion of the Off-Site Improvements shall have been
transferred to a Governmental Authority) and/or the use thereof.
"Equipment" means, collectively, all furniture, fixtures and equipment,
including all additions and modifications and accessions thereto and
substitutions and replacements thereof, purchased or acquired, or to be
purchased or acquired, by the Tenant (excluding any such items acquired with the
proceeds from the issuance of the Bonds) and located on, installed at or
otherwise used in connection with any Individual Property, including without
limitation all seats, movie screens, projection equipment and concession
equipment.
"Equity Return Rate" * [material omitted]
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
--------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
"ERISA Affiliate" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Code) as the Tenant; (ii) a partnership or other trade or business (whether
or not incorporated) which is under common control (within the meaning of
Section 414(c) of the Code) with the Tenant; and (iii) solely for purposes of
liability under Section 12(c)(11) of the Code, the Lien created under Section
412(n) of the Code, or for tax imposed for failure to meet minimum funding
standards under Section 4971 of the Code, a member of the same affiliated
service group (within the meaning of Section 414(m) of the Code) as the Tenant,
any corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"Event of Default" means the happening or occurrence of one of the
events or circumstances described in Section 17.1.
"Expiration Date" means the day preceding the sixteenth (16th)
anniversary of the Final Project Completion Date; provided, however, that if the
Initial Term is extended pursuant to the renewal provisions of Article 8 of this
Lease, the Expiration Date shall mean the last day of any such Renewal Term.
"Fair Market Value" shall have the meaning given to such term in
Section 15.2(b).
"Final Disbursement" means, with respect to each Individual Property,
the final disbursement by the Trustee from the Project Fund for the Costs of the
Applicable Project.
"Final Project Completion Date" means the date which is twenty-four
(24) months after the Commencement Date.
"Financial Advisor" means RealVest Capital Corporation, a New Jersey
corporation.
"Financing Costs" means and includes all fees and expenses necessary to
issue, offer and sell the Bonds and to arrange for the Landlord's Equity Amount,
including without limitation (i) the fees and reimbursable expenses of the
Financial Advisor, the Placement Agent, the Agent and the LC Issuers and LC
Participants, (ii) the fees and reimbursable expenses of the attorneys for the
Landlord, the Tenant, the Agent and the LC Issuers and LC Participants and (iii)
all other costs relating to the issuance and sale of the Bonds, including Rating
Agency fees, printing expenses, Trustee setup fees and Trustee's counsel fees.
"First Renewal Term" shall have the meaning set forth in Article 8.
"Fiscal Quarter" means any fiscal quarter of the Tenant.
"Fixed Charges" for any period, means without duplication, the sum of
(i) the aggregate amount of Interest Expense during such period plus (ii) the
aggregate amount of Rental Obligations (less any principal portion of any
Off-Balance Sheet Leases) for such period.
"Fund" means any of the funds established under the Indenture.
"Funded Debt" of any Person means (i) all Debt of such Person which in
accordance with GAAP would be classified on a balance sheet of such Person as of
such date as long-term debt, and including in any event all Debt of such Person,
whether secured or unsecured, having a final maturity (or which, pursuant to its
terms, is renewable or extendible at the option of such Person for a period
ending) more than one year after the date of the creation thereof (including any
portion thereof which is on such date included in current liabilities of such
Person), plus (ii) all Current Debt of such Person; it being understood and
agreed that, with respect to the Tenant, the term "Funded Debt" shall include,
in addition to all Debt which would otherwise be included pursuant to the
foregoing definition, but without duplication, (x) the sum of the principal
amount of the Outstanding Bonds and the Tenant's obligations under any
Off-Balance Sheet Leases, less amounts in the Project Fund (and any comparable
funds and accounts under documentation executed and delivered in connection with
any Off-Balance Sheet Leases) and (y) the Landlord's Equity Amount.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which, in accordance with Section 1.3, are to be
used in making the calculations for purposes of determining compliance with this
Lease.
"Governmental Authority" means any and all courts, boards, agencies,
commissions, offices or authorities of any nature whatsoever for any government
xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or otherwise) whether
now or hereafter in existence.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hard and Soft Costs" means and shall be deemed to include, together
with any other proper item of cost which is not specifically mentioned herein,
whether incurred prior to or after the date of this Lease, (a) the cost of the
acquisition or the ground leasing of the Leased Property, fees and expenses
related thereto; (b) the costs and expenses of the Landlord which are incurred
for labor and materials and payments to Contractors, builders and materialmen in
connection with the acquisition or leasing, construction, renovation and
installation of any Individual Property; (c) the cost of contract bonds and of
insurance of any kind that may be required or that may be necessary during the
course of acquisition, construction, renovation and installation of any
Individual Property which is not paid by the Contractor or Contractors; (d) the
costs and expenses of the Landlord for test borings, surveys, estimates, plans
and specifications and preliminary investigations therefor, and for supervising
construction, as well as for the performance of all other duties which are
required by or which are consequent to the proper construction, acquisition,
renovation and installation of any Individual Property; (e) [Intentionally
Omitted]; (f) all other costs which the Landlord shall be required to pay under
the terms of any Acquisition Agreement or Construction Agreement for the
acquisition, construction, renovation or installation of any Individual
Property; (g) any sums which are required to reimburse the Landlord or the
Tenant for any advances which are made by either of them for any of the above
items, or for any other costs which are incurred and for work which has been
done by either or both of them, provided that same is properly chargeable to any
Individual Property; and (h) such other expenses which are not specified in this
Lease or the Agency and Development Agreement and which may be necessary or
incidental to the construction, acquisition, renovation and installation of any
Individual Property, the financing thereof and the placing of the same in use
and operation. "Hard and Soft Costs" shall also include the costs and expenses
incurred by any agent of the Landlord or any other Person for any of the
above-mentioned items.
"Hazardous Substances" means any hazardous or toxic substance, waste,
pollutant or contaminated material, including without limitation, those
substances within the scope of any federal, state or local environmental laws,
regulations and ordinances, including the Resource Conservation and Recovery
Act, as amended, the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, the Superfund Amendment and Reauthorization Act of
1986, as amended, the Federal Water Pollution Control Act, as amended, the Clean
Air Act, as amended, and the Safe Drinking Water Act, as amended.
"Impositions" means:
(i) all real estate taxes, payments in lieu of real estate
taxes, water and sewer rents and special assessments for public improvements or
benefits levied against the Leased Property, any taxes levied against any other
personal property owned by the Tenant and located at or upon the Leased
Property, charges for public utilities, excises, levies, license and permit fees
and other charges, ordinary or extraordinary, whether foreseen or unforeseen, of
any kind and nature whatsoever, which during the Term may be levied, charged,
confirmed, assessed or imposed upon or become due and payable out of or in
respect of, or become a Lien upon, the Leased Property or any part thereof
(together with any interest and penalties thereon), including, without
limitation, any taxes or assessments hereafter assessed in lieu of any of the
foregoing;
(ii) all charges for water, gas, light, heat, telephone,
electricity, power and other utilities and communications services rendered or
used on or about the Leased Property or any part thereof;
(iii) all state and local taxes (specifically excluding taxes
imposed upon or measured by net income) imposed upon the Landlord or any member,
manager or other principal of the Landlord by reason or as a result of (A) the
payments of Rent to the Landlord hereunder or (B) the ownership or leasing of
the Leased Property by the Landlord hereunder;
(iv) all actual, reasonable costs, fees and expenses incurred
by or on behalf of the Landlord in connection with the Landlord's compliance
with any and all tax laws, rules and regulations (specifically excluding the
costs, fees and expenses of compliance with federal income tax laws, rules and
regulations and state and local taxes imposed upon or measured by net income),
including without limitation the costs, fees and expenses of preparing and
submitting any reports or other filings in connection therewith; and
(v) monetary obligations of the Tenant as to the insurance
required to be maintained pursuant to the provisions hereof.
"Improvements" means (i) with respect to each Individual Property, all
buildings, structures and other improvements (and additions thereto or
substitutions or modifications thereof) presently existing thereon, and all
buildings, structures and other improvements (and additions thereto or
substitutions or modifications thereof) to be constructed thereon as part of the
Applicable Project in accordance with the Applicable Construction Agreement, the
Applicable Approvals and the Applicable Plans and Specifications, and (ii) with
respect to the Leased Property, all Improvements constructed or to be
constructed, collectively, on all of the Individual Properties; provided,
however, that the Improvements shall not include any Equipment.
"Indemnified Party" or "Indemnified Parties" shall have the meanings
given to such terms in Section 25.1 hereof.
"Indenture" means the indenture of trust dated as of November 1, 1997
by and between the Landlord and the Trustee, pursuant to which the Bonds are to
be issued, including any indentures supplemental thereto as therein permitted.
"Individual Commencement Date" means, with respect to each Individual
Property, the effective date of the Lease Supplement relating to such Individual
Property.
"Individual Property" means, individually, (i) each Supplemental
Property and (ii) each Substitute Property which is substituted for an
Individual Property pursuant to Section 4.4.
"Initial Rent" means Rent payable by the Tenant during the Initial
Term, including Basic Rent and Supplemental Rent.
"Initial Term" means the initial term of this Lease commencing on the
Commencement Date and expiring on the Expiration Date (determined without regard
to the proviso contained in the definition thereof).
"Interest Expense" for any period, means the aggregate amount
(determined in accordance with GAAP on a consolidated basis after eliminating
all intercompany items) of all interest accrued (whether or not actually paid)
by the Tenant and its Restricted Subsidiaries during such period in respect of
Debt of the Tenant and its Restricted Subsidiaries (including Capital Lease
Obligations), provided that the term "Interest Expense" shall (i) include,
without limitation, net amounts paid or accrued during such period in connection
with interest rate protection products (including, without limitation, interest
rate swaps, caps, floors and collars), amortized (if appropriate under GAAP)
appropriately over the term of the applicable Debt, any amortized discount in
respect of Debt issued at a discount and any fees or commissions payable in
connection with any letters of credit, the portion of any Capital Lease
Obligation allocable to interest in accordance with GAAP, the amount of interest
costs incurred by any Person during any period that is capitalized in accordance
with GAAP and is not included as an interest cost in calculating Consolidated
Net Income for such period, and (ii) shall exclude all costs associated with the
prepayment of fixed-rate debt.
"Interest Payment Date" means an Interest Payment Date as defined in
the Indenture.
"Investment" means as to any Person, (a) any direct or indirect
purchase or other acquisition by such Person, for cash or other property, of
stock or other securities of any other Person, or (b) any direct or indirect
loan, advance or capital contribution by such Person to any other Person,
including all Debt and accounts receivable from such other Person which are not
current assets or did not arise from sales to such other Person in the ordinary
course of business. In computing the amount involved in any Investment, (i)
undistributed earnings of, and interest accrued in respect of Debt owing by,
such other Person accrued after the date of such Investment shall not be
included, (ii) there shall not be deducted from the amounts invested in such
other Person any amounts received as earnings (in the form of dividends,
interest or otherwise) on such Investment or as loans from such other Person and
(iii) unrealized increases or decreases in value, or write-ups, write-downs or
write-offs, of Investments in such other Person shall be disregarded.
"Land Acquisition Disbursement" means, with respect to each Individual
Property, a disbursement by the Trustee from the Project Fund for the Costs of
acquiring title to, or ground leasing, such Individual Property.
"Landlord" means Movieplex Realty Leasing, L.L.C., a New Jersey limited
liability company, and its successors and assigns.
"Landlord's Equity Amount" * [material omitted]
"LC Issuers" shall have the meaning given to such term in the
Reimbursement Agreement.
"LC Participants" shall have the meaning given to such term in the
Reimbursement Agreement.
"Lease" means this Master Lease between the Landlord, as lessor, and
the Tenant, as lessee, and any amendments or supplements hereto in accordance
with the terms hereof, including without limitation all Lease Supplements.
"Leased Property" means, collectively, all of the Individual Properties
now or from time to time hereafter leased by the Landlord to the Tenant pursuant
to this Lease or any Lease Supplement hereafter entered into between the
Landlord and the Tenant.
"Lease Supplement" means each Lease Supplement, substantially in the
form attached hereto as Exhibit E, entered into between the Landlord and the
Tenant in connection with the leasing, on or after the date hereof, of an
Individual Property by the Landlord to the Tenant; it being understood and
agreed that, upon execution and delivery of each Lease Supplement by the
Landlord and the Tenant, such Lease Supplement shall be deemed to become, and
shall in fact become, a part of this Lease.
"Lease Year" means a 12 month period during the Initial Term. The first
Lease Year shall begin on the Basic Rent Commencement Date and shall end on the
date preceding the first anniversary of the Basic Rent Commencement Date.
Subsequent Lease Years shall begin and end on the same dates as the first Lease
Year but in succeeding calendar years.
"Legal Requirements" means, as to the Tenant in the conduct of its
business wherever situated, and as to the Leased Property and the construction,
ownership, use, occupancy, possession, environmental condition, operation,
maintenance, alteration, repair or reconstruction thereof, (i) any and all
present and future judicial decisions, statutes, rulings, rules, regulations,
permits, certificates or ordinances of any Governmental Authority and applicable
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* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
to the Tenant or the Leased Property or by which the Tenant or the Leased
Property is bound, (ii) any and all terms, provisions, agreements or
restrictions created or imposed pursuant to any lease, contract, instrument of
restrictive covenants or other document applicable to and enforceable against
the Leased Property or the operator of the Leased Property, or applicable to the
Tenant or by which the Tenant is bound, (iii) all terms and provisions of the
Applicable Approvals and (iv) all Environmental Requirements.
"Lenders" shall have the meaning given to such term in the
Reimbursement Agreement.
"Letters of Credit" means, collectively, the irrevocable, direct-pay
letters of credit issued by the LC Issuers to the Trustee on the date of
execution and delivery of the Indenture and any Alternate Letters of Credit,
under which the Trustee is authorized, subject to the terms and conditions
thereof, to draw, in the aggregate, up to (a) an amount equal to the principal
amount of the Outstanding Bonds (i) to enable the Trustee to pay the principal
amount of the Bonds when due, at maturity, upon redemption or upon acceleration
and (ii) to enable the Trustee to pay the portion of the purchase price of Bonds
tendered to it and not remarketed corresponding to the principal amount of such
Bonds, plus (b) an amount equal to interest to accrue at the Maximum Rate on the
Outstanding Bonds for 42 days (i) to enable the Trustee to pay interest on the
Bonds when due and (ii) to enable the Trustee to pay the portion of the purchase
price of Bonds tendered to it and not remarketed corresponding to the accrued
interest on such Bonds, as the same may be amended, transferred, reissued or
extended in accordance with the Indenture.
"Letter of Credit Fees" means all fees payable in connection with the
issuance, origination, maintenance or renewal of the Letters of Credit and any
Alternate Letters of Credit, including without limitation, the fees payable in
the amounts and at the times set forth in Section 2.03(h) of the Reimbursement
Agreement.
"LIBOR" means the rate per annum determined on the basis of the offered
rate for deposits in Dollars of amounts equal or comparable to the amount of the
then Landlord's Equity Amount offered for a term of three months, which rate
appears on the Telerate Page 3750 effective as of 11:00 a.m. London time as of
the first Business Day of each calendar quarter.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. The
Tenant or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, Capital Lease or other title retention
agreement relating to such asset.
"Master Assignment" means the master assignment of contracts and
agreements of even date herewith from the Landlord and the Tenant, as assignors,
to the Agent, as assignee, in the form set forth as Exhibit I hereto.
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business, properties or prospects of the Tenant
and its Restricted Subsidiaries taken as a whole, (b) the rights and remedies of
the Landlord or the Agent under the Transaction Documents, or the ability of the
Tenant to perform its obligations under the Transaction Documents to which it is
a party, as applicable, or (c) the legality, validity or enforceability of any
Transaction Document.
"Maximum Rate" shall have the meaning ascribed thereto in the
Indenture.
"Mortgages" means, collectively, all of the Applicable Mortgages from
time to time.
"Movie Theater(s)" means, individually and collectively, as the context
may require, state-of-the-art (as of the Final Project Completion Date)
multiplex movie theaters operated or to be operated by the Tenant containing
approximately eight (8) to sixteen (16) movie screens each (it being understood
and agreed that entertainment facilities other than movie screens may occupy no
more than fifteen (15%) percent of the usable square footage of the building
housing such movie theater).
"Multiemployer Plan" means any Plan which is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Net Operating Income" means net rental income for leased real property
generated by such property for the benefit of the owner thereof, net of
Impositions and operating and maintenance expenses, if any, assumed by the owner
of such real property.
"Net Proceeds" means any insurance proceeds or condemnation award paid
with respect to any Individual Property remaining after payment therefrom of all
expenses incurred in the collection thereof.
"Obligations" means, when used with respect to a Party hereto, any and
all of the covenants, warranties, representations and other obligations made or
undertaken by such Party to the other Party hereto pursuant to the provisions
hereof.
"Off-Balance Sheet Lease" means any lease which is treated as an
operating lease for accounting purposes and as a financing instrument for
property law and bankruptcy purposes.
"Off-Site Improvements" means (i) with respect to each Individual
Property, those improvements required to be constructed or installed pursuant to
the Applicable Approvals on land other than such Individual Property, and (ii)
with respect to the Leased Property, all Off-Site Improvements constructed or to
be constructed, collectively, on all of the Individual Properties.
"Offering Statement" means, collectively, the Preliminary and Final
Offering or Placement Memorandum prepared and circulated by the Placement Agent
in connection with the issuance of the Bonds.
"Operating Agreement" means the amended and restated operating
agreement of the Landlord dated November 20, 1997.
"Operating Lease" means a lease of real or personal property other
than, in the case of the Tenant or a Restricted Subsidiary, (a) any such lease
under which the Tenant or a Wholly Owned Restricted Subsidiary is the lessor and
(b) any Capital Lease.
"Outstanding Bonds", "Bonds Outstanding" or "Outstanding" shall have
the meaning ascribed thereto in the Indenture.
"Parties" or "Party" means the Landlord and the Tenant collectively or
individually as the context may require.
"Payment Direction Agreement" means the payment direction agreement
dated November 20, 1997 by and among the Landlord, the Tenant, the Trustee and
the Agent in the form set forth as Exhibit J hereto.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means, with respect to each Supplemental
Property, only those liens, easements, building lines, restrictions, security
interests and other matters accepted or approved by the Landlord and the Agent
in writing.
"Person" means any individual, corporation, company, limited liability
company, voluntary association, partnership, limited liability partnership,
joint venture, trust, unincorporated organization or government (or any agency,
instrumentality or political subdivision thereof).
"Placement Agent" means RealVest Securities Corporation, a New York
corporation.
"Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3 of ERISA) which is or has been established or maintained,
or to which contributions are or have been made, by the Tenant or any ERISA
Affiliate.
"Preferred Member" *[material omitted]
"Preferred Membership Interest" *[material omitted]
"Preferred Member's Unrecovered Capital Account" *[material omitted]
"Preferred Return Rate" shall have the meaning given to such term in
the Operating Agreement.
"Preferred Stock" means, as applied to any corporation, shares of such
corporation which are entitled to preference or priority over any other shares
of such corporation in respect of either the payment of dividends or the
distribution of assets upon liquidation.
"Premier Theater Facility" *[material omitted]
"Prepayment Date" means any date on which the Rent is subject to
optional, mandatory or extraordinary optional prepayment pursuant to Article 20.
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* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
"Prepayment Ratio" means, with respect to any Individual Property, the
greater of: (i) the ratio, expressed as a percentage, that the fair market value
for such Individual Property (as determined and confirmed by the appraisals
delivered by the Tenant to the Landlord and the Agent pursuant to Sections 6(d)
and 7(e)(v) of the Agency and Development Agreement) bears to the Aggregate Fair
Market Value of the Leased Property, or (ii) the ratio, expressed as a
percentage, that the Allocable Costs for such Individual Property bear to the
total aggregate Costs of the Projects.
"Principal Office" means, when used with reference to the Landlord and
the Tenant, the addresses set forth in Section 26.1 and with reference to the
Trustee, or any other Fiduciary, the respective addresses of such parties as set
forth in the Indenture, and any further or different addresses as such parties
may designate pursuant hereto or thereto.
"Principal Payment Date" means, a date on which a principal installment
of the Bonds is required to be paid to the holders thereof as set forth in the
Indenture, but shall not include a Purchase Date.
"Project Fund" means the Fund so designated and established by the
Indenture.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Qualified Investments" shall have the meaning ascribed thereto in the
Indenture.
"Rating Agencies" means Xxxxx'x Investor Service, Inc., if the Bonds
are rated by such Person at the time, Standard & Poor's Ratings Group, if the
Bonds are rated by such Person at the time, and Fitch Investors Service, if the
Bonds are rated by such Person at the time, and their respective successors and
assigns, or if either shall be dissolved or no longer assigning credit ratings
to long term debt, then any other nationally recognized Person assigning credit
ratings to long term debt designated by the Landlord.
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Maturity Date (as
defined in the Credit Agreement) either (i) mandatorily redeemable (by sinking
fund or similar payments or otherwise) or (ii) redeemable at the option of the
holder thereof.
"Refunding Bonds" means all Bonds, whether issued in one or more
Series, authenticated and delivered on original issuance pursuant to Section
2.05(B) of the Indenture, and any Bonds thereafter authenticated and delivered
in lieu of or in substitution for such Bonds.
"Reimbursement Agreement" means, initially, the reimbursement and
credit agreement dated the date hereof among the Agent, as agent for the LC
Issuers, the LC Issuers, the LC Participants and the Landlord, as the same may
be amended or supplemented from time to time in accordance with the provisions
thereof, and means, with respect to any Alternate Letters of Credit, the
reimbursement agreement, if any, relating to the issuance of such Alternate
Letters of Credit as the same may be amended or supplemented from time to time
in accordance with the provisions thereof.
"Reimbursement Notes" shall have the meaning given to such term in the
Reimbursement Agreement.
"Reimbursement Obligations" shall mean (i) the "Reimbursement
Obligations" and (ii) all other "Obligations", as those terms are defined in the
Reimbursement Agreement.
"Renewal Rent" means Rent payable by the Tenant during the Renewal
Terms pursuant to Section 8.2.
"Renewal Term" means each period for which the Tenant elects to extend
the Term pursuant to Article 8.
"Rent" means, collectively, Basic Rent and Supplemental Rent.
"Rent Differential" *[material omitted]
"Rent Payments" means the payments of Rent.
"Rental Obligations" means for any period, the total amount (whether or
not designated as rentals or additional or supplemental rentals) payable by the
Tenant or any Restricted Subsidiary under any Operating Lease during such period
(in each case exclusive of amounts so payable on account of maintenance,
repairs, insurance, taxes, assessments and other similar charges); if and to the
extent that the amount of any Rental Obligation during any future period is not
definitely determinable under the Operating Lease in question, the amount of
such Rental Obligation shall be estimated in such reasonable manner as the Board
of Directors in good faith may determine.
"Required Lenders" shall have the meaning given to such term in the
Reimbursement Agreement.
"Reserve Fund" means the reserve fund referred to in Article 19, to be
held by the Landlord as security for the payment of the Deferred Maintenance
Obligation.
"Reserved Rights" means (i) subject to the terms of the Payment
Direction Agreement, the Landlord's right to receive Supplemental Rent hereunder
(other than Supplemental Rent which is payable to or for the account of the
Agent), (ii) the Landlord's rights of reimbursement and indemnity hereunder or
under any Transaction Document, (iii) [Intentionally Omitted], (iv) any rights
of the Landlord to be released from liabilities and obligations hereunder or
under the Transaction Documents and to indemnity contained in this Lease or the
Transaction Documents and (v) the concurrent right of the Landlord to receive
any and all notices, reports, surveys, certificates, financial statements and
evidences of performance which the Tenant may be required to furnish pursuant to
the terms hereof.
"Restricted Investment" means any Investment by the Tenant or a
Restricted Subsidiary in any Person (including a Subsidiary) other than (a)
Investments existing on February 29, 1996 and set forth in Exhibit F hereto; (b)
Investments in (i) any Restricted Subsidiary or any Person which is or
simultaneously therewith becomes a Restricted Subsidiary; (ii) readily
marketable direct obligations issued by the United States of America or by any
agency thereof which in the case of the latter are unconditionally guaranteed
by, or backed by the full faith and credit of, the United States of America, in
each case having a maturity not in excess of one year from the date of
acquisition thereof; (iii) open market commercial paper maturing not later than
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* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
270 days from the date of creation thereof of corporations that are organized
under the laws of the United States of America or any state thereof, and having
the rating of P-1 or A-1 or such other comparable rating by the Rating Agencies;
(iv) obligations of municipalities or corporations organized under the laws of
the United States of America or any state thereof maturing not later than one
year from the date of acquisition thereof by the Tenant or any Restricted
Subsidiary, and having the rating of AA or Aa or such other comparable rating by
the Rating Agencies; (v) certificates of deposit maturing within one year from
the date of acquisition thereof ("Certificates of Deposit") issued by commercial
banks or trust companies organized under the laws of the United States of
America or any state thereof having not less than $100,000,000 of capital,
surplus and undivided profits and currently having the rating not less than A or
such other comparable rating by the Rating Agencies; (vi) Certificates of
Deposit not to exceed in aggregate principal amount $1,500,000 issued by
Columbus Bank and Trust Company; (vii) Certificates of Deposit issued by
SunTrust Bank, Atlanta and Wachovia Bank, N.A., provided that each such bank is
owned by a "bank holding company" (within the meaning of the Bank Holding
Company Act of 1956, as amended), which shall have a rating of not less than A
or such other comparable rating by each of the Rating Agencies; (viii)
Eurodollar certificates of deposit maturing within one year of the date of
acquisition thereof issued by any bank having not less than $1,000,000,000 of
capital, surplus and undivided profits; and (ix) the IRB Certificate of Deposit
acquired as provided in the proviso set forth in the definition of "Debt"; and
(c) Investments acquired after the Effective Date (as defined in the Credit
Agreement) in exchange for, or out of the net cash proceeds of the substantially
concurrent sale of, capital stock of the Tenant or a Restricted Subsidiary.
"Restricted Payment" means any payment or the incurrence of any
liability to make any payment, in cash, property or other assets (other than in
shares of any class of capital stock, other than Preferred Stock, of the Tenant)
upon or in respect of any share of any class of capital stock of the Tenant,
including without limiting the generality of the foregoing, payments as
dividends and payments (other than out of the net cash proceeds from the
substantially concurrent sale of common shares of the Company) for the purpose
of purchasing, retiring or redeeming any such shares of stock (or any warrants,
options or other rights evidencing a right to purchase any such shares of stock)
or the making of any other distribution in respect of any such shares of stock
(or any warrants, options or other rights evidencing a right to purchase any
such shares of stock).
"Restricted Subsidiary" means any Subsidiary (i) which is organized
under the laws of, and which at the time in question conducts substantially all
of its business and maintains substantially all of its property and assets
within, the United States of America, or any state thereof, Canada, or any
province thereof, or Puerto Rico and (ii) at least 80% of the Voting Stock of
which is at the time owned by the Tenant or by one or more Wholly Owned
Restricted Subsidiaries or by the Tenant and one or more Wholly Owned Restricted
Subsidiaries.
"Return on Landlord's Equity Amount" *[material omitted]
"Revenues" means all (a) the Rent Payments, (b) other moneys received
or to be received by the Landlord or the Trustee in respect of Rent Payments,
including without limitation, all moneys and investments in the Bond Fund, (c)
the payments pursuant to the Security Documents received or receivable by the
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* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
Landlord from the Tenant, (d) any proceeds of Bonds originally deposited with
the Trustee for the payment of interest accrued on the Bonds or otherwise paid
to the Trustee by or on behalf of the Tenant or the Landlord for deposit in the
Bond Fund or any excess moneys remaining in the Project Fund following Final
Project Completion Date, and (e) investment income with respect to any moneys
held by the Trustee under the Indenture.
"Second Renewal Term" shall have the meaning set forth in Section 8.1.
"Secured Interests" shall have the meaning given to such term in
Section 18.1.
"Security Documents" means, collectively, the Mortgages, the
Assignments of Rents and the Master Assignment.
"Series" means all of the Bonds authenticated and delivered on original
issuance and identified pursuant to the Indenture or a Supplemental Indenture
authorizing such Bonds as a separate Series of Bonds, and any Bonds thereafter
authenticated and delivered in lieu of or in substitution for such Bonds
pursuant to the Indenture, or a Supplemental Indenture, regardless of variations
in maturity, interest rate, principal installments or other provisions.
"Series A Bonds" means the Landlord's Adjustable Rate Tender Securities
Bonds (Carmike Cinemas, Inc.) 1997 Series A (consisting of a Series A-1, a
Series A-2 and a Series A-3) in the aggregate principal amount of $59,775,000,
to be issued by the Landlord pursuant to the Indenture.
"Series B Bonds" means the Landlord's Adjustable Tender Securities
Bonds (Carmike Cinemas, Inc.) 1997 Series B (consisting of a Series B-1, a
Series B-2 and a Series B-3) in the aggregate principal amount of $12,975,000,
to be issued by the Landlord pursuant to the Indenture.
"Stipulated Loss Value" means, with respect to any purchase of an
Individual Property pursuant to Section 15.5, an amount equal to (i) the
Unamortized Total Project Cost, multiplied by (ii) the Prepayment Ratio.
"Subperforming Theater Property" means any Individual Property with
respect to which Theater EBITDA shall be negative for the most recent
consecutive 12-month period.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"Substitute Property" means any parcel of real property, together with
any and all Improvements constructed thereon and any and all personal property
acquired by the Landlord in connection therewith, substituted for any Individual
Property pursuant to the terms of Section 4.4.
"Supplemental Indenture" means any indenture amending or supplementing
the Indenture, which may be entered into in accordance with the provisions of
the Indenture.
"Supplemental Property" means each property hereafter acquired or
ground leased by the Landlord and leased to the Tenant pursuant to a Lease
Supplement, together with any and all Improvements constructed thereon and any
and all personal property acquired by the Landlord in connection therewith.
"Supplemental Rent" shall have the meaning given to such term in
Section 3.8.
"Supplemental Rent Payments" means all payments of Supplemental Rent.
"Tenant" means Carmike Cinemas, Inc., a Delaware corporation and its
successors and assigns.
"Tenant's Visitors" means persons invited by the Tenant and/or its
permitted subtenants onto the Leased Property as guests or doing lawful business
with the Tenant and/or its permitted subtenants including, without limitation,
the agents, servants, employees, contractors, invitees and licensees of the
Tenant and/or its permitted subtenants.
"Term" means the period of time covered by the Initial Term and, if the
Term is extended pursuant to Article 8 hereof, all of the Renewal Terms.
"Theater-Level EBITDA" means with respect to any Individual Property,
operating income derived therefrom, without provision for any interest, taxes
related to income, depreciation, amortization and corporate general and
administrative expenses.
"Title Company" means, with respect to each Individual Property, the
title insurance company, which shall be authorized to transact business in the
Applicable State and satisfactory to the Landlord and the Agent, that issues the
title insurance policy in connection with the acquisition of such Individual
Property and the recording of the Applicable Mortgage.
"Transaction Documents" means this Lease, the Indenture, the
Reimbursement Agreement, the Reimbursement Notes, the Applicable Construction
Agreements, the Lessee Undertaking, the Mortgages, the Assignments of Rents, the
Master Assignment, the Agency and Development Agreement, the Payment Direction
Agreement, the Placement, Indexing and Remarketing Agreement and all agreements,
documents or contracts between the Landlord and the Tenant or the Landlord and
the Agent and, if applicable, the Lenders in connection with the transactions
contemplated by any of the foregoing.
"Trustee" means First Union National Bank and its successors and any
corporation resulting from or surviving any consolidation or merger to which it
or its successors may be a party and any successor trustee at any time serving
as successor trustee under the Indenture.
"Trust Estate" shall have the meaning ascribed to such term in the
Indenture.
"Unamortized Total Project Cost" means, as of any date of calculation,
an amount equal to (i) the aggregate principal balance of the Outstanding Bonds,
together with all interest accrued thereon, plus (ii) the balance of the
Preferred Member's Unrecovered Capital Account, plus (iii) all accrued and
unpaid Supplemental Rent, plus (iv) all amounts payable pursuant to Section
2.05(b) of the Reimbursement Agreement.
"Uncompleted Project Purchase Price" means, with respect to each
Applicable Project that has not been completed and accepted for occupancy on or
before the Final Project Completion Date or the first anniversary of the Final
Project Completion Date in accordance with Section 4.2, as the case may be, an
amount equal to the aggregate amount of funds advanced by the Trustee from the
Project Fund for or with respect to such Applicable Project.
"Voting Stock" means capital stock of a corporation the holders of
which are ordinarily, in the absence of contingencies, entitled to elect the
corporate directors (or persons performing similar functions).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary,
all of the equity securities (except directors' qualifying shares) of which are
owned by the Tenant or another Wholly Owned Restricted Subsidiary.
"Wholly Owned Subsidiary" means, with respect to any Person, any such
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are owned or controlled by such Person or one or
more Wholly Owned Subsidiaries of such Person.
Section 1.2. Number and Gender; Captions; References; Capitalized
Terms. Pronouns, wherever used herein, and of whatever gender, shall include
natural persons, corporations and associations of every kind and character, and
the singular shall include the plural wherever and as often as may be
appropriate. Article and section headings in this Lease are for convenience of
reference only and shall not affect the construction or interpretation of this
Lease. Whenever the terms "hereof", "hereby", "herein", or words of similar
import are used in this Lease, they shall be construed as referring to this
Lease in its entirety rather than to a particular section or provision, unless
the context specifically indicates to the contrary. Unless otherwise indicated,
any reference to a particular "Article" or "Section" shall be construed as
referring to the indicated article or section of this Lease.
Section 1.3. Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Tenant's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Tenant and its Consolidated Subsidiaries delivered
to the Landlord and the Agent, unless with respect to any such change concurred
in by the Tenant's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this Lease or any of the
other Transaction Documents: (i) the Tenant shall have objected to determining
such compliance on such basis at the time of delivery of such financial
statements, or (ii) the Required Lenders shall so object in writing within 30
days after the delivery of such financial statements, in either of which events
such calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
not have been made; provided that, if either the Tenant or the Required Lenders
shall so object, then the Tenant and the Landlord shall negotiate in good faith
to modify the relevant covenants set forth in Article V in order to
appropriately reflect such changes in GAAP and, in the event such covenants are
so modified, upon execution of an amendment to this Agreement effectuating such
modification, the related changes in GAAP will be effective for calculation and
reporting purposes under this Lease.
ARTICLE 2. REPRESENTATIONS, COVENANTS AND WARRANTIES; DISCLAIMERS
Section 2.1. Representations, Covenants and Warranties of Tenant. The
Tenant represents, covenants and warrants as follows:
(a) Corporate Existence and Power. The Tenant is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, unless the failure to be so qualified or to have such corporate
powers or governmental licenses, authorizations, consents or approvals would not
have a Material Adverse Effect.
(b) Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Tenant of this
Lease and the other Transaction Documents (i) are within the Tenant's corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
require no action by or in respect of, or filing with, any governmental body,
agency or official, (iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of incorporation
or by-laws of the Tenant or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Tenant or any of its Subsidiaries,
and (v) do not result in the creation or imposition of any Lien on any asset of
the Tenant or any of its Subsidiaries other than the Lien created by or arising
as a result of the Transaction Documents.
(c) Binding Effect. This Lease and the other Transaction
Documents constitute valid and binding agreements of the Tenant enforceable in
accordance with their respective terms, provided that the enforceability hereof
and thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally.
(d) Financial Information.
(i) The consolidated balance sheet of the Tenant and
its Restricted Subsidiaries as of December 31, 1996 and the related consolidated
statements of income, shareholders' equity and cash flows for the Fiscal Year
then ended, reported on by Ernst & Young, copies of which have been delivered to
the Agent, and the unaudited consolidated financial statements of the Tenant and
its Restricted Subsidiaries for the interim period ended June 30, 1997, fairly
present, in conformity with GAAP, the consolidated financial position of the
Tenant and its Restricted Subsidiaries as of such dates and their consolidated
results of operations and cash flows for such periods stated.
(ii) Since December 31, 1996, there has been no
event, act, condition or occurrence having a Material Adverse Effect (other than
any such event, act, condition or occurrence which is disclosed in the
consolidated financial statements of the Tenant and its Restricted Subsidiaries
for that portion of the Fiscal Year ended on June 30, 1997).
(e) Litigation. There is no action, suit or proceeding
pending, or to the knowledge of the Tenant threatened, against or affecting the
Tenant or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official which could have a Material Adverse Effect
or which in any manner draws into question the validity or enforceability of, or
could impair the ability of the Tenant to perform its obligations under, this
Lease or any of the other Transaction Documents.
(f) Compliance with ERISA.
(i) The Tenant and each member of the Controlled
Group have fulfilled their obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or a Plan under Title IV
of ERISA.
(ii) Neither the Tenant nor any member of the
Controlled Group is or ever has been obligated to contribute to any
Multiemployer Plan.
(g) Taxes. There have been filed on behalf of the Tenant and
its Subsidiaries all Federal, state and local income, material excise, material
property and other material tax returns which are required to be filed by them
and all taxes due pursuant to such returns or pursuant to any assessment
received by or on behalf of the Tenant or any Subsidiary have been paid prior to
the same becoming delinquent, other than (i) those presently payable without
penalty or interest and (ii) those being contested in good faith by appropriate
proceedings with respect to which adequate reserves have been established in
accordance with GAAP. The charges, accruals and reserves on the books of the
Tenant and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Tenant, adequate. United States income tax returns of
the Tenant and its Subsidiaries (other than Westwynn Theaters, Inc.) have been
examined and closed through the Fiscal Year ended December 31, 1993.
(h) Subsidiaries. Each of the Tenant's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, unless the failure to be so qualified or to have such corporate
powers or governmental licenses, authorizations, consents or approvals would not
have a Material Adverse Effect. The Tenant has no Subsidiaries as of the date
hereof except those Subsidiaries listed on Exhibit G hereto, which accurately
sets forth (i) each such Subsidiary's complete name and jurisdiction of
incorporation and (ii) whether such Subsidiary is a Restricted Subsidiary or an
Unrestricted Subsidiary.
(i) Not an Investment Company. Neither the Tenant nor any of
its Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(j) Public Utility Holding Company Act. Neither the Tenant nor
any of its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended.
(k) Ownership of Property; Liens. Each of the Tenant and its
Subsidiaries has title to its properties sufficient for the conduct of its
business, and none of such property is subject to any Lien except as permitted
in Section 5.07 of the Credit Agreement.
(l) No Default. Neither the Tenant nor any of its Subsidiaries
is in default under or with respect to any agreement, instrument or undertaking
to which it is a party or by which it or any of its property is bound which
could have or cause a Material Adverse Effect. No Default or Event of Default
has occurred and is continuing.
(m) Full Disclosure. All information heretofore furnished by
the Tenant to the Landlord, the Agent or the Lenders for purposes of or in
connection with this Lease or any transaction contemplated hereby is, and all
such information hereafter furnished by the Tenant to the Landlord, the Agent or
the Lenders will be, true, accurate and complete in every material respect or
based on reasonable estimates on the date as of which such information is stated
or certified. The Tenant has disclosed to the Landlord, the Agent and the
Lenders in writing any and all facts which could have or cause a Material
Adverse Effect.
(n) Environmental Matters.
(i) Except as otherwise provided in Exhibit 4.14A to
the Credit Agreement, (1) neither the Tenant nor any of its Subsidiaries is
subject to Environmental Liabilities which could cause a Material Adverse
Effect, (2) to the best of the Tenant's knowledge, neither the Tenant nor any
Subsidiary has been designated a potentially responsible party under CERCLA or
under any state statute similar to CERCLA, and (3) to the best of the Tenant's
knowledge, none of the Individual Properties has been identified on any current
National Priorities List or CERCLIS List.
(ii) Except as otherwise provided in Exhibit 4.14(B)
to the Credit Agreement, to the best of the Tenant's knowledge, (1) the Tenant,
and each of its Subsidiaries, have used, managed, stored and otherwise handled
Hazardous Materials at the Individual Properties in compliance with applicable
Environmental Laws, excluding any violation of Environmental Laws which did not
cause a Material Adverse Effect, and (2) neither the Tenant nor any of its
Subsidiaries has caused an Environmental Release of Hazardous Materials into the
subsurface soil or groundwater underlying the Individual Properties which could
reasonably be expected to cause a Material Adverse Effect.
(iii) Except as otherwise provided in Exhibit 4.14(C)
to the Credit Agreement, to the best of the Tenant's knowledge, the Tenant and
each of its Subsidiaries maintain all Environmental Authorizations necessary for
the conduct of their respective businesses and are in compliance with all
Environmental Laws applicable to the operation of the Individual Properties and
their respective businesses, excluding any omission of Environmental
Authorizations or violation of Environmental Requirements which could not
reasonably be expected to cause a Material Adverse Effect.
(o) Compliance with Laws. The Tenant and each of its
Subsidiaries is in compliance with all Legal Requirements, including, without
limitation, all Environmental Requirements, except where any failure to comply
with any such laws would not, alone or in the aggregate, have a Material Adverse
Effect. The Tenant shall also maintain in full force and effect all of its
governmental and other authorizations, approvals, consents, permits, licenses,
certifications and qualifications necessary for the operation and leasing of the
Leased Property. Tenant has not received, has no knowledge of any violation, nor
is there any notice or other record of any violation, of any zoning,
subdivision, environmental, building, fire, safety, health or other statute,
ordinance, regulation, restrictive covenant or other restriction applicable to
the Leased Property except for those constituting Permitted Encumbrances.
(p) Capital Stock. All Capital Stock, debentures, bonds, notes
and all other securities of the Tenant and its Subsidiaries presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws, including, but not limited to, the "Blue Sky" laws of all applicable
states and the federal securities laws; provided that this representation shall
not extend to any violation of applicable laws in connection with any such
issuance occurring by reason of the action or inaction of any Person other than
the Tenant, any Subsidiary or any Person retained or employed by the Tenant or
any Subsidiary. The issued shares of Capital Stock of the Tenant's Wholly Owned
Subsidiaries are owned by the Tenant free and clear of any Lien or adverse
claim. At least a majority of the issued shares of capital stock of each of the
Tenant's other Subsidiaries (other than Wholly Owned Subsidiaries) is owned by
the Tenant free and clear of any Lien or adverse claim.
(q) Margin Stock. Not more than 25% of the aggregate fair
market value of the assets of the Tenant and its Restricted Subsidiaries which
are subject to the provisions of Section 5.07 of the Credit Agreement consists
of Margin Stock. Neither the Tenant nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
purchasing or carrying any Margin Stock.
(r) Insolvency. After giving effect to the execution and
delivery of the Transaction Documents, including this Lease, the Tenant will not
be "insolvent," within the meaning of such term as used in O.C.G.A. 18-2-22 or
as defined in 101 of Title 11 of the United States Code or Section 2 of the
Uniform Fraudulent Transfer Act, or any other applicable state law pertaining to
fraudulent transfers, as each may be amended from time to time, or be unable to
pay its debts generally as such debts become due, or have an unreasonably small
capital to engage in any business or transaction, whether current or
contemplated.
(s) Information. The Tenant will deliver to the Landlord and
the Agent:
(i) as soon as available and in any event within 90
days after the end of each Fiscal Year, a consolidated balance sheet of the
Tenant and its Restricted Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of income, shareholders' equity and cash flows
for such Fiscal Year, setting forth in each case in comparative form the figures
for the previous fiscal year, all certified by Ernst & Young or other
independent public accountants of nationally recognized standing, with such
certification to be free of exceptions and qualifications not acceptable to the
Landlord and the Agent;
(ii) as soon as available and in any event within 45
days after the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a
condensed consolidated balance sheet of the Tenant and its Restricted
Subsidiaries as of the end of such Fiscal Quarter and the related condensed
statement of income and condensed statement of cash flows for such Fiscal
Quarter and for the portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures for the
corresponding Fiscal Quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by the chief financial officer or
the chief executive officer of the Tenant;
(iii) simultaneously with the delivery of each set of
financial statements referred to in clauses (i) and (ii) above, a certificate,
substantially in the form as shall be mutually satisfactory to the Tenant, the
Landlord and the Agent (a "Compliance Certificate"), of the chief financial
officer or the chief executive officer of the Tenant (A) setting forth in
reasonable detail the calculations required to establish whether the Tenant was
in compliance with the requirements of Sections 2.1(u) through 2.1(x),
inclusive, on the date of such financial statements and (B) stating whether any
Default exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Tenant is taking or
proposes to take with respect thereto;
(iv) simultaneously with the delivery of each set of
annual financial statements referred to in clause (i) above, a statement of the
firm of independent public accountants which reported on such statements to the
effect that nothing has come to their attention to cause them to believe that
any Default existed on the date of such financial statements;
(v) within 5 Business Days after the Tenant becomes
aware of the occurrence of any Default, a certificate of the chief financial
officer or the chief executive officer of the Tenant setting forth the details
thereof and the action which the Tenant is taking or proposes to take with
respect thereto;
(vi) promptly upon the mailing thereof to the
shareholders of the Tenant generally, copies of all financial statements,
reports and proxy statements so mailed;
(vii) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Tenant shall have filed with the Securities and Exchange
Commission;
(viii) if and when the Tenant or any member of the
Controlled Group (A) gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA) with respect to any
Plan which might constitute grounds for a termination of such Plan under Title
IV of ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the notice of
such reportable event given or required to be given to the PBGC; (B) receives
notice of complete or partial withdrawal liability under Title IV of ERISA, a
copy of such notice; or (C) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate or appoint a trustee to administer any Plan, a
copy of such notice;
(ix) promptly after the Tenant knows of the
commencement thereof, notice of any litigation, dispute or proceeding involving
a claim against the Tenant and/or any Subsidiary for $1,000,000 or more in
excess of amounts covered in full by applicable insurance;
(x) promptly after the Tenant knows of the existence
thereof, any and all facts which could have or cause a Material Adverse Effect;
and
(xi) from time to time such additional information
regarding the financial position or business of the Tenant and its Subsidiaries
as the Agent or the Landlord may reasonably request.
(t) Inspection of Property, Books and Records. The Tenant will
(i) keep, and will cause each Restricted Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and will cause each Restricted Subsidiary to
permit, representatives of the Landlord and the Agent at their expense prior to
the occurrence of an Event of Default and at the Tenant's expense after the
occurrence of an Event of Default to visit and inspect any of their respective
properties, including the Leased Property, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants. The Tenant agrees to cooperate and assist in
such visits and inspections, in each case at such reasonable times and as often
as may reasonably be desired.
(u) Ratio of Consolidated Funded Debt to Consolidated Total
Capitalization. At the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ending June 30, 1997, the ratio of Consolidated Funded Debt to
Consolidated Total Capitalization will not at any time exceed .70 to 1.00.
(v) Ratio of Consolidated Funded Debt to Consolidated Cash
Flow. At the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending June 30, 1997, the ratio of Consolidated Funded Debt at the end of such
Fiscal Quarter to Consolidated Cash Flow for the period of 4 consecutive Fiscal
Quarters ending on such date will not be greater than 4.5 to 1.00.
(w) Restricted Payments and Restricted Investments. The Tenant
will not, directly, or indirectly through a Subsidiary or otherwise, declare,
order, pay, make or set apart any sum or property for any Restricted Payment and
the Tenant will not and will not permit any Restricted Subsidiary to make or
become obligated to make any Restricted Investment, in each case unless, both at
the time of the proposed action and immediately after giving effect thereto, (x)
no condition or event shall exist which constitutes a Default or an Event of
Default; and (y) the aggregate amount of:
(A) all sums and property included in all Restricted
Payments directly or indirectly declared, ordered, paid, made or set apart by
the Tenant during the period (the "Computation Period") (taken as one accounting
period) from and including April 1, 1993 to and including the date of such
proposed action, plus
(B) the aggregate amount of all Restricted
Investments of the Tenant and all Restricted Subsidiaries made during the
Computation Period and outstanding on the date of such proposed action and all
commitments for such Restricted Investments made by the Tenant or any Restricted
Subsidiary outstanding on such date, shall not exceed the sum of $5,000,000 plus
80% (or minus 100% in the case of a deficit) of Consolidated Net Income during
the Computation Period; provided that the Tenant may declare, order, pay, make
or set apart funds for the payment of a dividend on, and in accordance with the
terms of, any class of its Preferred Stock that is issued and sold by the Tenant
for cash after the date hereof, if, both at the time of the proposed action and
immediately after giving effect thereto, (x) the aggregate amount of Restricted
Payments after the date hereof with respect to all classes of Preferred Stock of
the Tenant shall not exceed the aggregate net proceeds to the Tenant from all
issuances and sales of its Preferred Stock after the date hereof, and (y) no
condition or event shall exist which constitutes a Default or an Event of
Default.
For all purposes of this Section 2.1(w), (1) the amount
involved in any Restricted Payment directly or indirectly declared, ordered,
paid, made or set apart in property and the amount of any Restricted Investment
made through the transfer of property, shall be the greater of (x) the fair
value of such property (as determined in good faith by the Board of Directors of
the Tenant) and (y) the net book value thereof on the books of the Tenant (as
determined in accordance with GAAP), in each case as determined on the date such
Restricted Payment is declared, ordered, paid, made or set apart or the date
such Restricted Investment is made or committed to be made, as the case may be,
and (2) all Investments of any Person existing immediately after such Person
becomes a Restricted Subsidiary which would be Restricted Investments if made by
such Person while subject to the provisions of the Credit Agreement shall be
deemed to be Restricted Investments and to have been made at the time such
Person becomes a Restricted Subsidiary.
(x) Fixed Charge Coverage. At the end of each Fiscal Quarter,
commencing with the Fiscal Quarter ending June 30, 1997, the ratio of Adjusted
Cash Flow to Fixed Charges, in each case for the current Fiscal Quarter and the
immediately preceding 3 Fiscal Quarters, shall not be less than 1.50 to 1.00.
(y) Negative Pledge. Neither the Tenant nor any Restricted
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(i) Liens existing on the date of this Lease securing
Debt outstanding on the date of this Agreement in an aggregate principal amount
not exceeding $18,000,000;
(ii) any Lien existing on any asset of any
corporation at the time such corporation becomes a Restricted Subsidiary and not
created in contemplation of such event;
(iii) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the cost of acquiring or
constructing such asset, provided that such Lien attaches to such asset
concurrently with or within 18 months after the acquisition or completion of
construction thereof;
(iv) any Lien on any asset of any corporation
existing at the time such corporation is merged or consolidated with or into the
Tenant or a Restricted Subsidiary and not created in contemplation of such
event;
(v) any Lien existing on any asset prior to the
acquisition thereof by the Tenant or a Restricted Subsidiary and not created
in contemplation of such acquisition;
(vi) Liens securing Debt owing by any Subsidiary to
the Tenant;
(vii) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses (ii) through (vii) of this Section, provided that (A)
such Debt is not secured by any additional assets, and (B) the amount of such
Debt secured by any such Lien is not increased;
(viii) any Lien on Margin Stock;
(ix) Liens for taxes or other Impositions not yet
delinquent or which are being contested in good faith by appropriate proceedings
and for which the Tenant shall have set aside any reserves required by GAAP;
(x) Liens of landlords, carriers, warehousemen,
mechanics, materialmen and other similar Persons incurred in the ordinary course
of business for sums not yet due;
(xi) Liens (other than any Lien created or imposed
under ERISA) incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive in any case of
obligations incurred in connection with the borrowing of money or the obtaining
of advances of credit);
(xii) any attachment or judgment Lien arising in
connection with court proceedings, provided that (i) the execution or other
enforcement of such Lien is effectively stayed and the claims secured thereby
are being actively contested in good faith and by appropriate proceedings
diligently conducted, and (ii) such reserve or other appropriate provision, if
any, as shall be required by GAAP shall have been made therefor and neither the
Tenant's nor any such Restricted Subsidiary's title to or right to use any of
its property is impaired in any material respect by reason of such contest;
(xiii) easements, licenses, rights-of-way and other
rights and privileges in the nature of easements and similar Liens incidental to
the ownership of property and not incurred in connection with the borrowing of
money or the obtaining of advances of credit, and which do not, individually or
in the aggregate, interfere with the ordinary conduct of the business of the
Tenant or any Restricted Subsidiary or materially detract from the value of the
properties subject to any such Liens;
(xiv) Liens not otherwise permitted by the foregoing
clauses of this Section securing Debt in an aggregate principal amount at any
time outstanding not to exceed 15% of Consolidated Total Capitalization; and
(xv) any Lien created by or arising as a result of
any of the Transaction Documents.
(z) Maintenance of Existence.
(i) The Tenant shall, and shall cause each Restricted
Subsidiary to, maintain its corporate existence and carry on its business in
substantially the same manner and in substantially the same fields as such
business is now carried on and maintained; provided that (A) the Tenant and its
Restricted Subsidiaries may engage in any transaction permitted by Section
2.1(bb) and (B) dissolution of any Restricted Subsidiary shall not be prohibited
by this Section if all of the assets of such Restricted Subsidiary are
transferred to the Tenant or any other Restricted Subsidiary following such
dissolution.
(ii) Without limiting the generality of the
foregoing, the Tenant shall qualify and maintain such qualification in good
standing as a foreign corporation in every Applicable State.
(aa) Dissolution. The Tenant shall not suffer or permit
dissolution or liquidation either in whole or in part or redeem or retire any
shares of its own stock, except (i) through corporate reorganization to the
extent permitted by Section 2.1(bb), and (ii) through Restricted Payments
permitted by Section 2.1(w).
(bb) Consolidations, Mergers and Sales of Assets. The Tenant
will not, nor will it permit any Restricted Subsidiary to, consolidate or merge
with or into, or sell, lease or otherwise transfer all or any substantial part
of its assets to, any other Person, or discontinue or eliminate any business
line or segment, provided that (a) the Tenant may merge with another Person if
(i) such Person was organized under the laws of the United States of America or
one of its states, (ii) the Tenant is the corporation surviving such merger and
(iii) immediately after giving effect to such merger, no Default shall have
occurred and be continuing, (b) Restricted Subsidiaries of the Tenant may merge
or consolidate with one another or with the Tenant, (c) any Restricted
Subsidiary of the Tenant may be merged or consolidated with or into another
Person to consummate an acquisition of such other Person permitted by Section
2.1(w), provided that the surviving Person shall be a Restricted Subsidiary of
the Tenant, and (d) the foregoing limitation on the sale, lease or other
transfer of assets and on the discontinuation or elimination of a business line
or segment shall not prohibit (i) the sale, lease or other transfer of assets by
a Restricted Subsidiary to any other Restricted Subsidiary or to the Tenant, or
(ii) during any Fiscal Quarter, a transfer of assets or the discontinuance or
elimination of a business line or segment (in a single transaction or in a
series of related transactions) unless the aggregate assets to be so transferred
or utilized in a business line or segment to be so discontinued, when combined
with all other assets transferred, and all other assets utilized in all other
business lines or segments discontinued, during such Fiscal Quarter and the
immediately preceding seven Fiscal Quarters (excluding, however, transfers of
assets permitted by clause (i) of this Section), either (x) constituted more
than 15% of Consolidated Total Assets at the end of the eighth Fiscal Quarter
immediately preceding such Fiscal Quarter, or (y) contributed more than 10% of
Consolidated Operating Income during the 8 consecutive Fiscal Quarters
immediately preceding such Fiscal Quarter.
(cc) Compliance with Laws; Payment of Taxes. The Tenant will,
and will cause each of its Restricted Subsidiaries and, in the case of ERISA,
each member of the Controlled Group to, comply in all material respects with
applicable laws (including but not limited to ERISA), regulations and similar
requirements of governmental authorities (including but not limited to PBGC),
except where the necessity of such compliance is being contested in good faith
through appropriate proceedings diligently pursued. The Tenant will, and will
cause each of its Restricted Subsidiaries to, pay promptly when due all taxes,
assessments and governmental charges imposed upon the Tenant or the Leased
Property, claims for labor, supplies, rent and other obligations which, if
unpaid, might become a lien against the property of the Tenant or any Restricted
Subsidiary, except (i) liabilities being contested in good faith by appropriate
proceedings diligently pursued and against which, if requested by the Landlord,
the Tenant shall have set up reserves in accordance with GAAP and (ii)
liabilities the nonpayment of which would reasonably be expected to have a
Material Adverse Effect.
(dd) Change in Fiscal Year. The Tenant will not change its
Fiscal Year.
(ee) Maintenance of Property. The Tenant shall, and shall
cause each Restricted Subsidiary to, maintain all of its material properties and
assets in good condition, repair and working order, ordinary wear and tear
excepted.
(ff) Operation of Unrestricted Subsidiaries. The Tenant shall
cause each Unrestricted Subsidiary to conduct its business and operations
separate and apart from that of any Restricted Subsidiary or the Tenant,
including, without limitation, (i) segregating assets of the Tenant and each
Restricted Subsidiary from, and not allowing funds or other assets of the Tenant
or any Restricted Subsidiary to be commingled with, the funds or other assets of
any Unrestricted Subsidiary, (ii) maintaining books and financial records of
each Unrestricted Subsidiary separate from the books and financial records of
the Tenant or any Restricted Subsidiary, (iii) observing all corporate
procedures and formalities in connection with the operation of each Unrestricted
Subsidiary, including, without limitation, maintaining minutes of shareholders'
and directors' meetings of each Unrestricted Subsidiary, (iv) causing each
Unrestricted Subsidiary to pay its liabilities from assets of such Unrestricted
Subsidiary or any other Unrestricted Subsidiary, and (v) causing each
Unrestricted Subsidiary to conduct its dealings with third parties in its own
name and as a separate and independent entity; provided that nothing contained
in this Section shall prohibit the Tenant from acting as collection agent and
paying agent for an Unrestricted Subsidiary, as long as proper books of account
are maintained and reconciled in connection therewith.
(gg) Additional Restricted Subsidiaries. The Tenant shall
deliver to the Agent and the Landlord notice that a Person has become a
Restricted Subsidiary within 10 days after the day on which such Person became a
Restricted Subsidiary.
Section 2.2. Representations, Covenants and Warranties of Landlord. The
Landlord represents, covenants and warrants as follows:
(a) Organization.
(i) The Landlord is a limited liability company duly
organized, validly existing and in good standing under the laws of the
state of New Jersey. Prior to entering into each Lease Supplement, the Landlord
shall qualify to do business and be in good standing as a foreign limited
liability company in the Applicable State to which such Lease Supplement
relates. The Landlord has, and will have, the full power and authority to enter
into this Lease, each Lease Supplement and each Transaction Document to which it
is a party and to engage in the transactions contemplated hereby and thereby,
and the joinder, consent or approval of no other Person is required for the
execution, delivery and performance hereof and thereof to properly consummate
the transactions herein or therein contemplated or, if required, such joinder,
consent or approval has been obtained and evidence thereof has been delivered to
the Tenant and the Agent.
(ii) The Landlord shall maintain its existence,
continue to be a limited liability company organized under the laws of the
State of New Jersey, not dissolve or otherwise dispose of all or substantially
all of its assets and not consolidate with or merge into another entity or
permit one or more other entities to consolidate with or merge into it unless
the Landlord shall be the surviving entity of any such consolidation or merger.
(iii) The Landlord shall maintain in full force and
effect all of its governmental and other authorizations, approvals,
consents, permits, licenses, certifications and qualifications necessary for the
conduct of its business as it is presently being conducted or contemplated to be
conducted hereunder to the extent the failure to so maintain the foregoing would
constitute a Material Adverse Event.
(iv) The Landlord currently constitutes, and shall
maintain its status as, a single-purpose, bankruptcy-remote entity. The Landlord
shall not terminate the Operating Agreement or amend, modify or supplement the
provisions thereof if such amendment, modification or supplement (A) would
change or expand its purposes, business or permitted activities; (B) would
amend, modify or supplement Section 11(h) thereof; or (C) could have an adverse
effect on the classification of this Lease for GAAP or federal income tax
purposes. The Landlord shall not distribute or permit the distribution of any
excess earnings of the Landlord other than in accordance with the terms of the
Operating Agreement. The Landlord shall conduct no business other than the
business contemplated by this Lease, the Reimbursement Agreement and the other
Transaction Documents.
(b) No Conflict. Neither the execution and delivery of this
Lease nor the fulfillment of or compliance with the terms and conditions hereof,
nor the consummation of the transactions contemplated hereby conflicts with or
results in a breach of the terms, conditions or provisions of any restriction,
any agreement or any instrument to which the Landlord is now a party or by which
the Landlord or its property are bound, or constitutes a default under any of
the foregoing, or results in the creation or imposition of any Lien whatsoever
upon any of the property or assets of the Landlord, or upon the Leased Property
except Permitted Encumbrances.
(c) Binding Obligation. Upon the execution and delivery
hereof, and assuming the valid execution and delivery hereof by the Tenant, this
Lease shall be a valid and binding obligation of the Landlord enforceable
against the Landlord in accordance with its respective terms, except as the same
may be limited by applicable bankruptcy, insolvency, moratorium or other similar
laws relating to the enforcement of creditors' rights generally from time to
time in effect and to the scope of equitable remedies which may be available.
(d) Amendment to Transaction Documents. The Landlord will not
amend, modify or supplement any of the Transaction Documents to which it is a
party without the prior approval of the Tenant and the Agent.
(e) Financial Statements.
(i) The Landlord shall deliver to the Tenant
quarterly financial statements within thirty-five (35) days after the end of
each of the first, second and third fiscal quarters of the Landlord and annual
financial statements within seventy-five (75) days after the end of each fiscal
year of the Landlord prepared, in each case, in accordance with GAAP.
(ii) The Tenant shall have the right to request an
audit from a firm of independent certified public accountants reasonably
acceptable to the Tenant of any financial statements delivered by the Landlord
to the Tenant; provided, however, that all costs and expenses associated with
such audit shall be the sole responsibility of the Tenant, and shall be payable
by the Tenant as Supplemental Rent hereunder.
Section 2.3. Disclaimer. NEITHER THE LANDLORD BY DELIVERY HEREOF, OTHER
THAN AS SET FORTH IN SECTION 2.2, NOR THE TRUSTEE, BY ITS ACCEPTANCE OF THE
DUTIES OF TRUSTEE UNDER THE INDENTURE, MAKES ANY WARRANTY OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, AS TO (A) THE LEASED PROPERTY, THE APPLICABLE PLANS
AND SPECIFICATIONS, THE APPLICABLE PROJECTS OR THE IMPROVEMENTS, (B) THE
EXPERIENCE, QUALIFICATIONS OR FINANCIAL CONDITION OF ANY CONTRACTOR OR ANY OTHER
PERSONS WHICH MAY BE ENGAGED TO CONSTRUCT THE APPLICABLE PROJECTS, (C) THE PRICE
TO BE PAID UNDER ANY ACQUISITION AGREEMENT OR CONSTRUCTION AGREEMENT, (D) THE
SUITABILITY OR FITNESS FOR ANY PURPOSE OF THE LEASED PROPERTY OR ANY PART
THEREOF OR (E) ANY OTHER MATTER PERTAINING TO OR RELATING TO THE LEASED
PROPERTY.
Section 2.4. Amendments Relating to Bonds. Each Party hereby agrees and
covenants with the other that it will, from time to time hereafter, execute and
enter into any such amendments or restatements hereof as may be reasonably
required by the Trustee, the Agent, the Rating Agencies or the other Party to
enable or more effectively permit the refinancing of the Bonds and/or the
issuance of the Additional Bonds or Refunding Bonds, if any, so long as (x) all
consents required hereunder, under the other Transaction Documents or under any
other agreement to which the Landlord or the Tenant is a party have been
obtained and (y) any such amendment or restatement does not alter any
substantive right, privilege or protection contained in, or created by this
Lease in favor of such Party, except as contemplated herein.
Section 2.5. Actions Taken by Tenant. To the extent that the
Reimbursement Agreement permits or requires the Tenant to take or perform any
action or step, the Landlord hereby consents to the taking or performing of any
such action or step by the Tenant.
ARTICLE 3. DEMISE OF PREMISES; TERM; RENT; OTHER PAYMENTS
Section 3.1. Demise of Premises. Subject to the terms and conditions of
this Lease, the Lease Supplements and the Security Documents, the Landlord, for
and in consideration of the covenants herein contained and made on the part of
the Tenant, hereby agrees to lease the Supplemental Properties to the Tenant for
the Term, and the Tenant hereby agrees to lease the Supplemental Properties from
the Landlord for the Term.
Section 3.2. Rent. Throughout the Term, the Tenant agrees to pay (i)
commencing on the Basic Rent Commencement Date, to the Landlord in immediately
available funds as Rent for the Leased Property, Basic Rent as set forth below
and in Section 3.5, and (ii) directly to the Person to whom payment is due and,
if such Person is the Agent, in immediately available funds, delivered to such
Person's office, from time to time as provided for herein, as Supplemental Rent
all other amounts, costs, liabilities and obligations which the Tenant assumes
or agrees to pay to the Landlord or to others hereunder.
Section 3.3. Rental Payments to be Unconditional, No Abatement or
Set-off.
(a) The obligation of the Tenant to make Rent Payments when
due with respect to the Leased Property or any other payments required hereunder
shall be absolute and unconditional in all events (including, without
limitation, failure of the Tenant to possess or have use of the Leased Property
or any portion thereof) and the Tenant hereby acknowledges that the terms of
this Lease create a valid and binding obligation of the Tenant to make Rent
Payments and to pay all other amounts which are required to be paid under the
terms of this Lease.
(b) Notwithstanding any dispute between the Tenant and the
Landlord or any other Person, including, without limitation, the Agent, the
Tenant shall make all Rent Payments required hereunder when due and shall not
withhold any Rent Payment for any reason whatsoever, nor shall the Tenant assert
against the Landlord, the Trustee, the Agent, any LC Issuer, any LC Participant
or any other Person any right of set-off, recoupment, deduction, defense or
counterclaim against its obligation to make such Rent Payments required under
this Lease or claim any abatement, suspension, deferment, diminution or
reduction for any reason whatsoever including, without limitation, whether or
not the Leased Property is used or occupied by the Tenant or is available for
use or occupancy by the Tenant.
(c) The Tenant's obligation to make Rent Payments shall not be
abated through accident or unforeseen circumstances. No abatement, diminution or
reduction in Basic Rent or Supplemental Rent required to be paid by the Tenant
pursuant hereto shall be claimed by or allowed to the Tenant for any
inconvenience, interruption, cessation, or loss of business caused directly or
indirectly, by any present or future Legal Requirements, or by priorities,
rationing or curtailment of labor or materials, or by war, civil commotion,
strikes or riots, or any manner or thing resulting therefrom, or by any other
cause or causes beyond the control of the Landlord, the Tenant, the Agent or any
other Person, nor shall this Lease be affected by any such causes.
(d) This is an absolutely net lease to the Landlord and it is
intended that Tenant shall pay all costs and expenses of every character,
whether foreseen or unforeseen, ordinary or extraordinary or structural or
nonstructural, in connection with the construction, use, operation, maintenance,
repair and reconstruction of the Leased Property by Tenant including, without
limitation, the costs and expenses particularly set forth in this Lease. It is
the intent of the parties hereto that the Basic Rent payable under this Lease
shall be an absolutely net return to the Landlord and that the Tenant shall pay
all costs and expenses relating to the Leased Property and the business carried
on therein, including any obligations (specifically excluding federal income
taxes and state and local taxes imposed upon or measured by net income) imposed
upon the Landlord, as owner of the Leased Property unless otherwise expressly
provided in this Lease. Any obligation herein relating to the Leased Property
which is not expressly declared in this Lease to be that of the Landlord shall
be deemed to be an obligation of the Tenant and shall be performed by the Tenant
at the Tenant's sole cost and expense and not an obligation or cost and expense
of the Landlord, the Trustee, the Agent, any LC Issuer, any LC Participant or
any other Person.
(e) The Tenant's obligations to make Rent Payments shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Lease under all circumstances, including, without limitation, the
following circumstances:
(i) any lack of validity or enforceability of this
Lease, the Letters of Credit or any Transaction Document;
(ii) any amendment, compromise, settlement or waiver
of or any consent to departure from all or any of the Transaction Documents;
(iii) the existence of any claim, set-off, defense or
other right which the Landlord may have at any time against the Trustee
or the Tenant may have against the Landlord, or either may have against any
other beneficiary, or any transferee, of the Letters of Credit (or any persons
or entities for whom the Trustee, any such beneficiary or any such transferee
may be acting), the Agent, or any other person or entity, whether in connection
with this Lease, the transactions contemplated herein or in the Transaction
Documents, or any unrelated transaction;
(iv) any statement or any other document presented
under the Letters of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect;
(v) payment by the LC Issuers under the Letters of
Credit against presentation of a draft or certificate which does not
comply with the terms of the Letters of Credit;
(vi) any failure, omission or delay on the part of
the Landlord, the Trustee, the Tenant or the Agent to enforce, assert or
exercise any right, power or remedy granted under this Lease or any Transaction
Document;
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
(f) [INTENTIONALLY OMITTED]
(g) The Landlord shall have the rights and remedies for the
collection of Supplemental Rent as are available to the Landlord for the
collection of the Basic Rent.
(h) Nothing in this Section 3.3 shall be deemed or construed
as a waiver by the Tenant of any rights or remedies which it may have against
any Person, it being understood and agreed that the Tenant may assert any such
rights in one or more separate proceedings.
Section 3.4. Termination of Term/Rental Payment Obligation.
(a) The Tenant will not terminate this Lease nor be relieved
of its obligation to make Rent Payments or from any of its other Obligations
hereunder for any reason including, without limiting the generality of the
foregoing, any acts or circumstances that may constitute an eviction or
constructive eviction, failure of consideration, failure of title, or
frustration of purpose, or any damage to or destruction of the Leased Property
or any portion thereof, or the taking by eminent domain of title or the right of
temporary use of all or any part of the Leased Property, or the failure of the
Landlord or any other Person to perform and observe any agreement or covenant,
whether expressed or implied, or any duty, liability or obligation which arises
out of or which is related to this Lease by the terms hereof or under law or
otherwise.
(b) Not earlier than three hundred sixty (360) days nor later
than two hundred seventy (270) days prior to the Expiration Date of the Initial
Term, the Tenant shall notify the Landlord and the Agent in writing of its
election to exercise one of the following options (it being understood and
agreed that a failure to so notify the Landlord and the Agent within such time
period shall be deemed to be an election by the Tenant to exercise the option
set forth in Section 3.4(b)(iii) below):
(i) to purchase all (but not less than all) of the
Individual Properties comprising the Leased Property on the terms and conditions
set forth in Article 15 of this Lease; or
(ii) to renew the Initial Term of this Lease with
respect to all (but not less than all) of the Individual Properties comprising
the Leased Property on the terms and conditions set forth in Article 8 of this
Lease; or
(iii) to surrender the Leased Property in accordance
with and subject to the provisions of Article 13 of this Lease, in which event
the Tenant shall pay to the Landlord, on the Expiration Date and in immediately
available funds, the Deferred Maintenance Obligation.
Section 3.5. Basic Rent.
(a) From and after the Basic Rent Commencement Date, the
Tenant shall pay Basic Rent Payments on each Basic Rent Payment Date in the
amounts for the applicable month shown on Exhibit H annexed hereto and made a
part hereof, as such amounts are adjusted by the Rent Differential.
(b) During any Renewal Term, the applicable Renewal Rent
determined in accordance with Section 8.2 hereof.
(c) In the event the Bonds are redeemed in whole or in part
(other than any mandatory sinking fund redemption) from funds other than (I)
drawings under the Letters of Credit, or (ii) payments or prepayments of Basic
Rent by or at the direction of the Tenant hereunder, the Tenant shall continue
to make payments of Basic Rent hereunder during the Initial Term on each Basic
Rent Payment Date as provided in Section 3.5(a).
Section 3.6. [Intentionally Omitted].
Section 3.7. Basic Rent; No Bonds Outstanding. Subject to Section
3.5(c), no Basic Rent Payments shall be due or payable at any time during which
no Bonds are Outstanding and all Reimbursement Obligations payable under the
Reimbursement Agreement and the Reimbursement Notes have been paid in full.
Section 3.8. Supplemental Rent.
(a) Components of Supplemental Rent. Subject to the exclusions
set forth in Section 3.8(b) below, the Tenant hereby agrees to pay to Landlord
(or to whomever shall be entitled thereto as expressly provided herein or in any
other Transaction Document) the following amounts (such amounts, giving effect
to such exclusions, being herein referred to as "Supplemental Rent") as and when
the same shall become due and payable:
(i) Administrative and Other Expenses and Amounts. So
long as there shall be any amount of principal of, interest on, or other amounts
due in connection with the Bonds or the Reimbursement Agreement or Reimbursement
Notes, the following:
(A) for the account of the Landlord, the
fees and charges of the Agent for all services of the Agent and all its
reasonable expenses (including, without limitation, reasonable counsel
fees), and all other fees, interest, charges, payments, penalties,
amounts owing, in each case, in respect of indemnities and other
amounts owing under the Reimbursement Agreement and the Reimbursement
Notes, including, without limitation, interest in respect of the
foregoing, incurred by the Landlord in accordance with the
Reimbursement Agreement and the Reimbursement Notes, as and when the
same become due;
(B) for the account of the Landlord, all
out-of-pocket fees and expenses incurred by the Agent and the LC
Issuers, including without limitation the fees and expenses of counsel
to the Agent (but not counsel to the other LC Issuers) for the
amendment of the Transaction Documents, the fees and expenses of
counsel to the Agent and the other LC Issuers in connection with the
occurrence of an event of default, or the enforcement or preservation
of rights, under the Transaction Documents in connection with the
transactions contemplated thereby, including the structuring and
implementation thereof, irrespective of whether such transactions are
consummated and the fees and costs in connection with any environmental
reports, plans, surveys, appraisals, title policies, recording charges,
excise, documentation and other taxes or other documents or
certificates prepared, or charges payable, in connection with the
transactions contemplated by the Transaction Documents;
(C) for the account of the Landlord, the
fees and charges of Trustee for all services of Trustee and all its
reasonable expenses (including, without limitation, reasonable counsel
fees) incurred by Trustee in accordance with the Indenture, as and when
the same become due;
(D) for the account of the Landlord, to the
extent the Landlord is obligated therefor, the reasonable fees and
charges of any other paying agents for the Bonds, as and when the same
become due;
(E) to or for the account of the Landlord,
all reasonable costs and expenses (including, without limitation,
reasonable counsel fees) incurred by the Landlord in connection with
the issuance of the Bonds;
(F) for the account of the Landlord, (I) the
fees payable to the Agent pursuant to the Agent's Letter Agreement and
the Letter of Credit Fees, or (ii) if the Bonds and the Reimbursement
Obligations are no longer outstanding, and the Tenant is obligated to
pay Basic Rent in accordance with Section 3.5(c), an amount equal to
the Letter of Credit Fees which would have been payable under Section
2.03 of the Reimbursement Agreement had the Bonds and the Letters of
Credit remained outstanding, as shown on Exhibit B hereof, provided,
however, that the Tenant shall not be obligated to pay any other fees
or expenses of any refinancing (other than an Indexing Agent fee) by
Landlord which Tenant has not approved in advance;
(G) for the account of the Landlord, all
reasonable administrative costs and expenses (including, without
limitation, reasonable counsel fees) incurred by the Landlord in
connection with the administration, modification or enforcement of this
Lease or any of the other Transaction Documents or the administration
of any Individual Property or any matters relating thereto; and
(H) for the account of the Landlord, (1) all
amounts payable to the Rating Agencies, (2) all fees and expenses
payable to the remarketing agent and indexing agent in connection with
the Bonds, and all fees and costs associated with the remarketing of
the Bonds, (3) all fees and expenses associated with draws under the
Letters of Credit, (4) all costs incurred by the Landlord in connection
with the Landlord's compliance with the terms of this Lease, the
Reimbursement Agreement, the Reimbursement Notes or any other
Transaction Document, including without limitation compliance with any
financial reporting requirements (including delivery of financial
statements of Landlord) hereunder or thereunder, but excluding any
costs of compliance with financial reporting requirements (including
the cost of the preparation an delivery of financial statements) to the
extent such financial reporting relates to Persons other than the
Landlord, (5) all fees and expenses incurred in connection with
qualifying, or maintaining qualification, to do business in any
Applicable State, including without limitation any annual reports or
annual filing fees, (5) all Impositions with respect to each Applicable
State, together with all costs in connection therewith and (6) all
costs and expenses relating to or required in connection with the
application for, or obtaining of, any governmental consents or
approvals;
provided, however, that any payments made by Trustee pursuant to the Indenture
in respect of amounts referred to in clauses (A), (B), (C) or (D) above shall be
credited against the obligation of Tenant under this subsection (i);
(ii) Additional Rent. From and after the Basic Rent
Commencement Date, the Return on Landlord's Equity Amount shall be due and
payable on the first Basic Rent Payment Date of each calendar quarter (the
"Additional Rent"); provided, however, that no Additional Rent shall be payable
by the Tenant for any period (A) to the extent moneys are provided to or
deposited with the Trustee from proceeds derived from the sale of the Bonds and
applied by the Trustee for the payment of such Additional Rent or (B) to the
extent of a balance available for payment of such Additional Rent in the Bond
Fund which is applied by the Trustee for the payment of such Additional Rent;
and provided further that upon the expiration of the Initial Term, the Landlord
shall refund to the Tenant, or the Tenant shall pay to the Landlord, as the case
may be, the difference between the aggregate amounts paid by the Tenant pursuant
to this Section 3.8(a)(ii) and the amount of the Return on Landlord's Equity
Amount as finally determined as of the end of the Initial Term.
(iii) [INTENTIONALLY OMITTED];
(iv) Aggregate Fair Market Value Threshold. If applicable, the
amount set forth in Section 4.3(a); and
(v) Other Amounts. Any other amounts, other than Basic Rent
and the Rent Differential, (A) owing by the Tenant under this Lease or (B) owing
by the Landlord under the Reimbursement Agreement, the Indenture or the other
Transaction Documents, including, without limitation, all reasonable costs
incurred or to be incurred by the Landlord in connection with the Landlord's
compliance with the financial reporting requirements (including delivery of
financial statements) hereunder, under the Reimbursement Agreement or under any
of the other Transaction Documents.
(b) Exclusions from Supplemental Rent. Supplemental Rent shall
not include, and Tenant shall have no obligation to pay, notwithstanding any
provision in the foregoing Section 3.8(a), in any other section of this Lease or
in any other Transaction Document (but without impairing Tenant's obligation to
pay Basic Rent, as adjusted by the Rent Differential, Additional Rent or other
amounts described in Section 20.2), any of the following amounts:
(i) any amount payable by any Person in respect of
federal income tax or state or local taxes imposed upon or measured by net
income, in each case imposed or measured by the net income of any Person other
than Tenant;
(ii) the principal amount of the Bonds, and interest
payable with respect thereto, or the principal amount of the Reimbursement
Obligations or the Reimbursement Notes and interest payable with respect
thereto;
(iii) any distribution payable to, or return
guaranteed or payable to, any Person in its capacity as a member of Landlord;
(iv) any amount owing or payable to any Person as a
result of any default or event of default under the Indenture, the Reimbursement
Agreement or any other Transaction Document, to the extent that such default or
event or default is not also an Event of Default hereunder;
(v) any taxes or other cost or expenses incurred by
any Person as a result of any transfer by the Landlord of its interest in the
Lease, by any Person of any membership interest in the Landlord, or by any
Lender of its interest in the Reimbursement Agreement, any Reimbursement Note or
any Letter of Credit; or
(vi) any amount payable under any Transaction
Document (other than this Lease) resulting from, or payable in connection with,
any amendment, modification or supplement to or of such Transaction Document, to
the extent such amendment, modification or supplement has not been requested or
approved by the Tenant.
Section 3.9. Surplus Moneys in Bond Fund. In the event that the
Aggregate Fair Market Value of the Leased Property as of the Final Project
Completion Date shall be equal to or greater than $75,000,000, then the Trustee
shall, in accordance with and subject to the terms of the Indenture, redeem
Bonds in an aggregate principal amount equal to the aggregate amount of (a)
moneys remaining in the Project Fund (including investment earnings thereon)
after the Final Project Completion Date which are transferred to the Excess Bond
Proceeds Account of the Bond Fund pursuant to Section 5.03 of the Indenture; (b)
moneys deposited in the Capitalized Interest Account and Capitalized Interest
Reserve Account (including investment earnings thereon) which are transferred to
the Excess Bond Proceeds Account of the Bond Fund pursuant to Sections 5.02A and
5.02B, respectively, of the Indenture; and (c) investment earnings on the Bond
Fund which are applied as provided in Section 5.04 of the Indenture. Upon any
such redemption, the Landlord and Tenant agree to amend the Basic Rent Schedule
set forth in Exhibit H annexed hereto and made a part hereof to appropriately
reflect, on a pro rata basis, the effect of such redemption.
ARTICLE 4. ACQUISITION AND CONSTRUCTION; SUBSTITUTION OF PROPERTIES
Section 4.1. Acquisition and Construction of the Individual Properties.
(a) Each Individual Property shall be acquired or ground
leased, and each Applicable Project shall be constructed and developed, pursuant
to and in accordance with the terms and provisions of the Agency and Development
Agreement.
(b) Concurrently with the acquisition or ground leasing of any
Individual Property by the Landlord, (i) the Landlord and the Tenant shall enter
into a Lease Supplement with respect thereto and (ii) the Landlord shall execute
and deliver the Applicable Mortgage, the Applicable Assignment of Rents and the
Memorandum of Lease.
Section 4.2. Projects Not Completed. If, on or before the Final Project
Completion Date, any Applicable Project has not been completed and accepted for
occupancy, the Tenant shall either:
(a) purchase such Applicable Project on the Final Project
Completion Date from the Landlord for an amount equal to the Uncompleted Project
Purchase Price. Upon receipt of the Uncompleted Project Purchase Price, the
Landlord shall apply such amounts to the redemption of Bonds in accordance with
the terms of the Indenture, and the principal amount available under the Letters
of Credit shall be reduced ratably by the amount of the Uncompleted Project
Purchase Price; or
(b) accept such uncompleted Applicable Project and commence
Rent Payments with respect thereto as if such Applicable Project had been
completed and accepted for occupancy; provided, however, that in the event that
such Applicable Project shall not have been completed and accepted for occupancy
on or before the first anniversary of the Final Project Completion Date, the
Tenant shall purchase such Applicable Project on the first anniversary of the
Final Project Completion Date on the terms and conditions set forth in Section
4.2(a) above.
Section 4.3. Aggregate Fair Market Value Not Achieved. In the event
that the Aggregate Fair Market Value of the Leased Property shall be less than
$75,000,000 as of the Final Project Completion Date, the Tenant shall either:
(a) On the Final Project Completion Date, make a payment to
the Landlord, as Supplemental Rent, in an amount equal to the amount by which
the Aggregate Fair Market Value of the Leased Property is less than $75,000,000;
or
(b) On the Final Project Completion Date, purchase from the
Landlord each Individual Property the fair market value of which (as determined
by the appraisals delivered by the Tenant to the Landlord and the Agent pursuant
to Section 6(b) of the Agency and Development Agreement and as confirmed
pursuant to Section 7(e)(v) of the Agency and Development Agreement) is less
than the Allocable Costs for such Individual Property. In such event, the
purchase price to be paid by the Tenant to the Landlord for each such Individual
Property shall be an amount equal to the Allocable Costs for such Individual
Property. Upon receipt of such purchase prices, the Landlord shall apply such
amounts to the redemption of Bonds in accordance with the terms of the
Indenture, and the principal amount available under the Letters of Credit shall
be reduced ratably by the aggregate amount of such purchase prices.
Section 4.4. Substitution of Properties.
(a) During the Term, the Tenant shall have the right, with the
prior written consent of the Landlord (not to be unreasonably withheld or
delayed) and the Agent (in accordance with Section 9.06(a)(vii) of the
Reimbursement Agreement), and on the terms and conditions set forth in this
Section 4.4, and subject to the limitations set forth in paragraph (d) of this
Section 4.4, to substitute a Substitute Property for any Individual Property
which is subject to the terms of this Lease at the time of such substitution.
(b) As a condition precedent to the effectiveness of any
substitution of a Substitute Property for an Individual Property, the Tenant
shall deliver to the Landlord, the Agent and the Trustee:
(i) A certificate from an independent certified
public accountant reasonably acceptable to the Landlord and the Agent stating
that the consummation of such substitution will not have a material adverse
effect on the treatment or status of this Lease for tax purposes;
(ii) A certificate, signed by an Authorized
Representative of the Tenant, stating that the fair market value of the
Substitute Property on and as of the effective date of the substitution is
greater than or equal to the fair market value of the Individual Property being
replaced thereby (as determined by the appraisal delivered to the Landlord and
the Agent pursuant to Section 6(b) of the Agency and Development Agreement and
as confirmed pursuant to Section 7(e)(v) of the Agency and Development
Agreement), accompanied by an appraisal of the Substitute Property, prepared (in
accordance with FIRREA and all other regulatory requirements applicable to the
Agent) and certified by an independent MAI appraiser acceptable to the Landlord
and the Agent, setting forth the estimated fair market value of the Substitute
Property on and as of the effective date of such substitution (on an
"as-completed" basis);
(iii) (A) All of the documents and other items
required to be delivered by the Tenant as a condition to each Land Acquisition
Disbursement pursuant to Section 7(c) of the Agency and Development Agreement as
if the Tenant were requesting a Land Acquisition Disbursement with respect to
the Substitute Property, and (B) all of the documents and other items required
to be delivered by the Tenant as a condition to each Final Disbursement pursuant
to Section 7(e) of the Agency and Development Agreement as if the Tenant were
requesting a Final Disbursement with respect to the Substitute Property; and
(iv) An opinion of counsel reasonably acceptable to
the Landlord and the Agent stating that the substitution of the Substitute
Property for the Individual Property being replaced qualifies as a tax-free like
kind exchange pursuant to Section 1031 of the Internal Revenue Code, and that
such substitution will have no adverse tax consequences for the Landlord.
(c) On the effective date of the substitution:
(i) The Landlord shall acquire, and the Tenant shall
convey, the Substitute Property in the same manner as if such Substitute
Property were acquired by the Landlord prior to the Final Project Completion
Date;
(ii) The Landlord and the Tenant shall enter into a
Lease Supplement with respect to the Substitute Property;
(iii) The Landlord shall convey its interest in and
to the Individual Property being replaced by the Substitute Property to the
Tenant; and
(iv) The Landlord shall execute and deliver to the
Agent an Applicable Mortgage and an Applicable Assignment of Rents with respect
to the Substitute Property.
(d) Notwithstanding anything to the contrary contained in this
Section 4.4, the Tenant shall have no right to substitute more than two (2)
Substitute Properties during any five (5) year period.
Section 4.5. Moneys Remaining in Project Fund. Any moneys in the
Project Fund (including the investment earnings thereon) remaining after the
Final Project Completion Date and after payment, or provision for payment, in
full of the Costs of the Projects and receipt by the Landlord and the Trustee of
the certificate described in Section 7(e)(vi) of the Agency and Development
Agreement, shall be transferred to the Excess Bond Proceeds Account of the Bond
Fund and applied as provided in Section 3.9 and Section 5.03 of the Indenture
upon the prior consent of the Agent, which shall be given by the Agent if at
such time an Event of Default shall not have occurred and be continuing.
Section 4.6. Investment and Use of Fund Moneys. Any moneys held as part
of the Bond Fund or the Project Fund shall be invested or reinvested by the
Trustee in accordance with the terms of the Indenture.
Section 4.7. Ownership of Leased Property.
(a) The Landlord, as between the Landlord and the Tenant,
shall and hereby does retain all of its rights to the Leased Property
notwithstanding the delivery thereof to and possession and use thereof by
Tenant, the rights of Tenant being only those of a tenant as set forth in this
Lease and any Lease Supplement.
(b) Notwithstanding anything to the contrary contained in this
Lease, any Costs of the Projects paid for by moneys of the Tenant and used to
acquire assets or property constituting a portion of any Applicable Project,
other than Equipment, shall be and become part of the Leased Property, owned by
the Landlord, subject to the Lien of the Applicable Mortgage, and the Tenant
shall have no legal or equitable ownership interest therein.
Section 4.8. Change in Location of Records. The Tenant shall notify the
Landlord and the Agent at least 60 days prior to changing the place at which it
maintains its records with respect to this Lease and any other Transaction
Document, of the address to which such records are to be transferred.
ARTICLE 5. USE
Section 5.1. Use. The Individual Properties comprising the Leased
Property shall be used by the Tenant only as Movie Theaters and uses reasonably
ancillary thereto and for no other use or purpose.
Section 5.2. Prohibited Uses. The Tenant shall not use, or suffer or
permit the use of, the Leased Property or any portion thereof in any manner or
for any purpose or do, bring or keep anything, or suffer or permit anything to
be done, brought or kept, therein or thereon which would (i) violate any
covenant, agreement, term, provision or condition of this Lease or be unlawful
or in contravention of the certificate of occupancy for any Individual Property,
or contravene any Legal Requirement or insurance requirement to which any
Individual Property is subject, except where such violation, contravention or
illegality would not have a material adverse effect on such Individual Property,
(ii) overload or could cause an overload of the electrical or mechanical systems
of any Individual Property or which would exceed the floor load per square foot
which any floor in an Individual Property was designed to carry and which is
allowed by law, (iii) invalidate or conflict with, the fire or public liability
insurance on the Leased Property or (iv) result in any liability on the part of
the Landlord under any Environmental Requirement.
ARTICLE 6. COMPLIANCE WITH LEGAL REQUIREMENTS
Section 6.1. Tenant's Compliance with Legal Requirements. The Tenant
shall, throughout the Term and at the Tenant's sole cost and expense, promptly
comply, or cause compliance: (i) with all Legal Requirements applicable to the
Leased Property, including, without limitation, all Environmental Requirements,
whether present or future, foreseen or unforeseen, ordinary or extraordinary,
and whether or not the same shall be presently within the contemplation of the
Landlord and the Tenant or shall involve any change of governmental policy, or
require structural or extraordinary repairs, alterations, or additions, and
irrespective of the cost thereof, which may be applicable to the Leased Property
or any portion thereof and (ii) with any agreements, contracts, easements and
restrictions affecting the Leased Property or any part thereof or the ownership,
occupancy or use thereof existing on the date hereof or hereafter created by the
Tenant, or consented to or requested by the Tenant.
ARTICLE 7. IMPOSITIONS
Section 7.1. Utilities. The Tenant shall furnish or cause to be
furnished, at its own expense, all utilities of every type and nature required
by it in its use of the Leased Property and shall pay or cause to be paid, when
due, all bills for water, sewerage, heat, gas, electricity and other utilities,
if any, used on, in connection with, or chargeable against the Leased Property
during the Term and all bills for utility charges relating to the Leased
Property or the use thereof and the Tenant shall indemnify and save harmless the
Landlord, the Agent and the Trustee from and against any loss, cost and expense
in connection therewith. The Tenant shall cause all utilities to be placed in
its name and all bills to be sent directly to the Tenant. The Tenant shall pay
all such bills as and when the same shall be due and payable and upon request of
the Landlord, shall provide evidence of the payment thereof.
Section 7.2. Payment of Impositions. The Tenant covenants to pay
directly to the Person entitled to such payment, before any fine, penalty,
interest or cost may be added thereto for the non-payment thereof, as
Supplemental Rent hereunder, all Impositions. The Tenant shall furnish to the
Landlord, promptly after payment of any Impositions, official receipts or other
satisfactory proof evidencing payment of such Impositions. Upon the Tenant's
failure to pay such Impositions or failure after written request to provide
proof of such payment or failure to deliver any such certificate, as above
provided, the Landlord shall have the right, at the Landlord's option, to
require the Tenant to: (i) promptly deposit with the Trustee, or, if no Bonds
are Outstanding, with the Landlord, funds for the payment of current Impositions
required to be paid by the Tenant hereunder; and (ii) also deposit one-twelfth
(1/12th) of the current annual Impositions or those of the preceding years if
the current amounts thereof have not been fixed, on the first day of each month
in advance, except that all additional funds required for any payments thereof
shall also be deposited as aforesaid on the first day of the final month during
which or at the end of which a payment is due and payable without interest or
penalty.
Section 7.3. Tax Contests. The Tenant shall have the right, at its own
expense, to contest the amount or validity, in whole or in part, of any
Imposition by appropriate proceedings diligently conducted in good faith,
without having to pay such Imposition as a condition to the institution of such
contest unless (i) such payment is required by any Legal Requirement of a
Governmental Authority or (ii) the failure to make such payment would, in the
reasonable judgment of the Landlord, cause any Individual Property to be in
danger of being forfeited, lost or materially affected. Upon the termination of
any proceedings, it shall be the obligation of the Tenant to pay the amount of
such Imposition or part thereof as finally determined in such proceedings, the
payment of which may have been deferred during the prosecution of such
proceedings, together with any costs, fees, interests, penalties or other
liabilities in connection therewith. Nothing herein contained, however, shall be
so construed as to allow such Imposition to remain unpaid for such length of
time as shall permit the Leased Property, or any part thereof, to be sold, taken
or otherwise adversely affected by any Governmental Authority for the
non-payment of the same. The Tenant shall promptly furnish the Landlord with
copies of all proceedings and documents with regard to any such contest, and the
Landlord shall have the right, at its expense, to participate therein. In any
event, the Landlord shall cooperate with the Tenant, at the Tenant's sole cost
and expense, in connection with any such contest.
Section 7.4. Tax Refund. The Landlord shall direct the Agent to remit
to the Tenant any refund of Taxes (as defined in the Reimbursement Agreement)
which are the subject of Section 2.06(c) of the Reimbursement Agreement.
ARTICLE 8. EXTENSION OPTIONS
Section 8.1. Extension Options. *[material omitted]
Section 8.2. Renewal Rent; Procedure for Determination. *[material
omitted]
Section 8.3. Lease Amendment. Upon final determination of the Renewal
Rent to be paid during any Renewal Term as hereinabove provided, the Landlord
and the Tenant shall enter into an amendment to this Lease to reflect the same
as well as such other modifications of this Lease as mutually shall be deemed
appropriate by the Landlord and the Tenant.
Section 8.4. No Assignment. The extension options contained in this
Article 8 may not be severed from this Lease or separately sold, assigned or
otherwise transferred. Any sale, assignment or transfer or attempted sale,
assignment or transfer of such options separate from this Lease shall be null
and void, ab initio.
Section 8.5. Invalidity. No extension option contained herein shall be
valid unless all prior extension options have been properly exercised.
ARTICLE 9. LANDLORD'S RIGHT OF ENTRY
Section 9.1. Landlord's and Agent's Right of Entry. The Landlord, the
Agent, any Lender and their respective duly authorized representatives shall
have the right to enter any Individual Property at all reasonable times and upon
reasonable notice for the purposes of inspecting the condition of same, and
making such repairs and restorations thereto as may be necessary or desirable if
the Tenant fails to do so as required hereunder (but neither the Landlord nor
the Agent nor any Lender shall have any duty whatsoever to make any such
inspections, repairs, or restorations). Any such inspections, repairs or
restorations to the extent reasonably practicable, shall be conducted in such
manner so as to minimize the interference with the Tenant's business. The costs
so incurred by the Landlord, the Agent or any Lender shall be included within
and constitute part of the Supplemental Rent due by the Tenant and shall be
payable upon demand of the Landlord or the Agent.
ARTICLE 10. MAINTENANCE, REPAIR AND REPLACEMENT BY TENANT
Section 10.1. Maintenance of the Leased Property. The Tenant shall
throughout the Term at the Tenant's sole cost and expense, (a) take good care of
and maintain the Leased Property and all roadways, sidewalks and curbs on and
appurtenant thereto, in good order and repair, and shall promptly remove all
accumulated snow, ice and debris from any and all roadways, sidewalks and curbs
located upon or appurtenant to the Leased Property and (b) fully perform and
comply with all conditions and obligations to be performed and complied with by
the Landlord on and after the date hereof under the Applicable Acquisition
Agreement and the documents and instruments executed and delivered in connection
therewith.
Section 10.2. Repair and Replacement of the Leased Property. The Tenant
shall not commit or suffer to be committed any waste upon or about the Leased
Property, and shall promptly at its sole cost and expense, make all necessary
replacements, restorations and repairs to the Leased Property and appurtenances
thereto, whether interior or exterior, structural or non-structural, ordinary or
-----------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
extraordinary, and foreseen or unforeseen, ordinary wear and tear excepted.
Repairs, restorations and replacements shall be at least equivalent in quality
to the original work or the property replaced, as the case may be. The Tenant
shall not make any claim or demand upon or bring any action against the Landlord
for any loss, cost, injury, damage or other expense caused by any failure or
defect, structural or non-structural, of the Leased Property or any part
thereof.
Section 10.3. Maintenance of Leased Property. The Tenant shall,
throughout the Term, maintain the Leased Property in good operating condition,
normal wear and tear excepted, in a manner comparable to other first run theater
facilities of comparable size and age owned by the Tenant in the same or
comparable markets; provided, however, that the Tenant's liability hereunder at
the end of the Term shall be subject to the terms of Section 3.4(b)(iii).
Section 10.4. Landlord Not Responsible. The Landlord shall not under
any circumstances be required to build any Improvements on any Individual
Property, or to make any repairs, replacements, alterations or renewals of any
nature or description to any Individual Property, whether interior or exterior,
ordinary or extraordinary, structural or non-structural, foreseen or unforeseen
(unless same are directly necessitated by the Landlord's entry onto such
Individual Property pursuant to Article 9), or to make any expenditure
whatsoever in connection with this Lease or to inspect or maintain the Leased
Property or any part thereof in any way. The Tenant hereby waives the right to
require the Landlord to make repairs, replacements, renewals or restorations
pursuant to any Legal Requirements including, without limitation, any
Environmental Requirements.
ARTICLE 11. ALTERATIONS BY TENANT
Section 11.1. Tenant Alterations. The Tenant agrees not to make or
allow to be made any alterations, improvements, additions or physical changes in
or about any Individual Property, other than those constituting part of an
Applicable Project as shown on the Applicable Plans and Specifications or
modifications thereto consented to by the Landlord and the Agent (the
"Alterations"), without first obtaining the written consent of the Landlord and
the Agent in each instance, which consent (A) may be withheld by either the
Landlord or the Agent, each in its sole discretion, if the proposed Alterations
(i) adversely affect the structural components of the Improvements on such
Individual Property, or (ii) reduce the value or utility of the Improvements on
such Individual Property, and (B) in all other cases, shall not be unreasonably
withheld or delayed, but may be given on such reasonable conditions as the
Landlord and the Agent may elect, including but not limited to receipt of
evidence satisfactory to the Landlord and the Agent that the Tenant has adequate
funds to complete such Alterations. Notwithstanding the foregoing, neither the
Agent's nor the Landlord's consent shall be required for any non-structural
Alterations with respect to any Individual Property unless and until the costs
of Alterations at or with respect to such Individual Property for any single
Alteration or series of related Alterations shall exceed $100,000. Any and all
Alterations to any Individual Property shall without further act become the
property of the Landlord and subject to the Lien of the Applicable Mortgage,
except for trade fixtures, movable equipment or furniture owned by the Tenant.
Upon the expiration or termination of this Lease, the Landlord or the Agent may
require the Tenant to remove any and all Alterations for which consent was
required hereunder and which were made without having obtained such consent of
the Landlord and the Agent as well as all fixtures, equipment and other
improvements installed on such Individual Property other than fixtures,
equipment or other improvements constituting a part of the Applicable Project.
In the event the Landlord or the Agent so elects, and the Tenant fails to remove
such property, the Landlord or the Agent may remove the same at the Tenant's
cost, and the Tenant shall pay the Landlord or the Agent, as the case may be, on
demand all costs incurred in connection therewith. The Tenant shall be
responsible for the cost of repairing all damage to such Individual Property
resulting from the removal of such property, except to the extent arising out of
the gross negligence or willful misconduct of the Landlord or the Agent. The
Tenant's obligations pursuant to this Section 11.1 shall constitute Supplemental
Rent and shall survive the expiration or sooner termination of this Lease and
the Reimbursement Agreement.
Section 11.2. Construction of Alterations. With respect to any
Alterations for which the consent of the Landlord and the Agent is required
hereunder, the Tenant shall submit to the Landlord and the Agent, at the time of
its request for the Landlord's and the Agent's consent to any proposed
Alteration, plans and specifications (including layout, architectural,
mechanical and structural drawings) for such proposed Alteration. All permits,
approvals and certificates required by all Governmental Authorities shall be
timely obtained by the Tenant at the Tenant's expense and submitted to the
Landlord and the Agent (the Landlord shall not unreasonably refuse to join in
any application therefor provided that such joinder shall be without expense to
the Landlord and further provided that the Landlord's joinder is required by
such Governmental Authority). Notwithstanding the Landlord's and the Agent's
approval of plans and specifications for any Alteration, all Alterations shall
be designed by the Tenant and shall be made to be in full compliance with all
applicable Legal Requirements; all construction shall be of good and workmanlike
quality in conformance with the plans and specifications therefor; all materials
and equipment to be incorporated into an Individual Property as a result of all
Alterations shall be of first class quality; and no such materials or equipment
shall be subject to any Lien, chattel mortgage or title retention or security
agreement. All Alterations shall be performed by the Tenant at the Tenant's sole
expense. Upon completion of any Alterations, the Tenant shall provide the
Landlord and the Agent with as-built plans depicting said Alterations.
ARTICLE 12. ASSIGNMENT AND SUBLETTING
Section 12.1. Restrictions on Assignment and Subletting.
(a) The Tenant expressly covenants and agrees that it shall
not grant or suffer to permit or exist by operation or law or otherwise a Lien
with respect to the Tenant's interest in this Lease. Further, the Tenant
expressly covenants that it will not by operation of law or otherwise assign
this Lease, in whole or in part, nor sublet or suffer or permit the Leased
Property or any part thereof to be used by others, without the prior written
consent of the Landlord and the Agent in each instance, which consent may be
granted or withheld in the sole and absolute discretion of the Landlord and the
Agent; provided, however, that the Tenant shall have the right, without the
Agent's or the Landlord's consent, to assign or sublet all or any portion of
this Lease or the Leased Property to any Subsidiary of the Tenant; provided
further, however, that no such assignment or subletting shall release the Tenant
from any of its obligations under this Lease. Any attempt by the Tenant without
the Landlord's and the Agent's prior written consent to assign this Lease or to
sublet the Leased Property or a portion thereof shall be null and void. The
Tenant shall not assign this Lease or sublet all or any portion of the Leased
Property to any party with diplomatic immunity or otherwise not amenable to
service of process in any Applicable State.
(b) If the Tenant's interest in this Lease is assigned or if
the Leased Property or any part thereof is sublet to, or occupied by, or used
by, anyone other than the Tenant, whether or not in violation of this Article
12, the Landlord may, after default by the Tenant, accept from any assignee,
sublessee or anyone who claims a right to the interest of the Tenant under this
Lease, or who occupies any part(s) or the whole of the Leased Property, the
payment of Basic Rent and Supplemental Rent or any portion thereof and/or the
performance of any of the other obligations of the Tenant under this Lease, but
such acceptance shall not be deemed to be a waiver by the Landlord of the breach
by the Tenant of the provisions of this Article 12, nor a recognition by the
Landlord that any such assignee, sublessee, claimant or occupant has succeeded
to the rights of the Tenant hereunder, nor a release by the Landlord of the
Tenant from further performance by the Tenant of the covenants on the Tenant's
part to be performed under this Lease; provided, however, that the net amount of
Basic Rent and Supplemental Rent collected from any such assignee, sublessee,
claimant or occupant shall be applied by the Landlord to the Basic Rent and
Supplemental Rent to be paid hereunder.
(c) The Tenant agrees to pay as Supplemental Rent to the
Landlord or the Agent all fees, costs and expenses, including, but not limited
to reasonable attorneys' fees and disbursements, incurred by the Landlord or the
Agent in connection with any proposed assignment of this Lease and any proposed
sublease of the Leased Property or any part thereof.
(d) In the event that EastWynn shall become the Borrower under
the Credit Agreement at any time, the Tenant shall cause EastWynn to
simultaneously unconditionally guarantee the payment and performance by the
Tenant of its obligations under this Lease, such guarantee to be in form and
substance reasonably satisfactory to the Agent.
Section 12.2. Procedure; Requirements.
(a) If the Tenant requests the Landlord's and the Agent's
consent to an assignment of this Lease or a subletting of all or any part of the
Leased Property (for any assignment or subletting which is not otherwise
permitted hereby), the Tenant shall submit to each of them: (i) the name of the
proposed assignee or subtenant; (ii) the terms of the proposed assignment or
subletting; (iii) the nature of the proposed assignee or subtenant's business
and its proposed use of the Leased Property; (iv) such information as to the
financial responsibility and general reputation of the proposed assignee or
subtenant as the Landlord or the Agent may reasonably require; (v) a summary of
plans and specifications, if any, for revising the floor layout of the Leased
Property; and (vi) such other information deemed relevant by the Landlord or the
Agent in its sole discretion.
(b) Upon the receipt of all requested information from the
Tenant, each of the Landlord and the Agent shall within thirty (30) days after
such receipt, advise the Tenant whether it approves or disapproves of such
request to assign or sublease. If the Landlord or the Agent shall fail to so
advise the Tenant prior to the expiration of the thirty (30) day period provided
for in this Section 12.2(b), the Landlord or the Agent, as the case may be,
shall be deemed to have approved the proposed assignment or subletting.
(c) If the consent to an assignment pursuant to a request from
the Tenant required hereunder and under the Transaction Documents has been
obtained, the Tenant shall cause to be executed by its assignee an agreement
that such assignee shall perform faithfully and assume and be bound by all of
the terms, covenants, conditions, provisions and agreements of this Lease and
that this Lease shall not be subject to further assignment or subletting except
upon compliance with the provisions of this Article 12. If consent to a sublease
shall have been obtained pursuant to the requirements hereof and of the
Transaction Documents, the sublease shall expressly provide that it is subject
to all of the terms and conditions of this Lease and the Security Documents,
that the subtenant shall not violate any of such terms or conditions and at the
option of the Landlord, in the event of the termination of this Lease, the
subtenant will attorn to the Landlord. The subtenant shall also execute an
agreement acknowledging that the portion of the Leased Property sublet shall not
be subject to further subletting without compliance with the provisions of this
Article 12. An executed counterpart of each sublease or assignment and
assumption of performance by the assignee, in form and substance approved by the
Landlord, shall be delivered to the Landlord and the Agent at least five (5)
days prior to the effective date set forth in such assignment or sublease. No
such assignment or sublease shall be binding on the Landlord until the Landlord
has received such counterpart as required herein.
(d) If consent to an assignment of this Lease or to any
sublease shall have been obtained, the Tenant shall in consideration therefor
pay to the Trustee, for the account of the Landlord, as Supplemental Rent, the
following amounts, less the actual expenses incurred by the Tenant in connection
with such assignment or subletting including reasonable legal fees, brokerage
commissions to persons not affiliated with the Tenant and costs of making
alterations, as the case may be:
(i) in the case of an assignment, an amount equal to
all sums and other considerations paid to the Tenant by the assignee for or by
reason of such assignment; and
(ii) in the case of a sublease, all rents, additional
charges or other consideration payable under the sublease to the Tenant by the
subtenant which are in excess of the Basic Rent and Supplemental Rent accruing
during the term of the sublease in respect of the subleased space (at the rate
per square foot payable by the Tenant hereunder) pursuant to the terms hereof.
All sums described in clauses (i) and (ii) of this Section 12.2(d) shall be paid
to the Trustee as Supplemental Rent if, as and when paid by the assignee or
subtenant to the Tenant and applied equally on the earliest permissible date to
the redemption of the Bonds.
Section 12.3. No Release from Liability. In no event shall any
assignment or subletting release or relieve the Tenant from its obligations to
fully observe or perform all of the terms, covenants and conditions of this
Lease (including the obligation to pay Rent) on its part to be observed or
performed and the fact that the Landlord and the Agent may consent to any
assignment or subletting or be deemed to have so consented shall not be
construed as constituting such a release of the Tenant. No assignment or
sublease made as permitted by this Article 12 shall affect or reduce any of the
obligations (including the obligation to pay Rent) of the Tenant hereunder, and
all such obligations shall continue as obligations (including the obligation to
pay Rent) of the Tenant in full force and effect as obligations of a principal
and not as obligations of a guarantor or surety, to the same extent as though no
assignment or subletting had been made; provided that performance by any such
assignee or sublessee of any of the obligations of the Tenant under this Lease
shall be deemed to be performance by the Tenant. No sublease or assignment made
as permitted by this Article 12 shall impose any obligations on the Landlord
other than those set forth herein or otherwise affect any of the rights of the
Landlord under this Lease.
Section 12.4. No Waiver. The consent by the Landlord or the Agent to
any one assignment or subletting shall not be deemed to be a consent to any
further or future assignment or subletting.
ARTICLE 13. SURRENDER
Section 13.1. Surrender of Premises. Upon the Expiration Date, or
sooner termination of this Lease, the Tenant shall peaceably and quietly quit
and surrender to the Landlord the Leased Property, broom clean. Each Individual
Property comprising the Leased Property shall be in as good condition as on the
Applicable Completion Date, except for normal wear and tear, free and clear of
tenants and occupants and with all of the Tenant's Equipment and other personal
property removed and, to the extent required by the Landlord in accordance with
the terms of Article 11 of this Lease, with Alterations restored and deliver all
drawings, schedules and similar papers relating to the Applicable Project then
in the possession of the Tenant or any Affiliate of the Tenant and necessary or
useful for the continued operation and maintenance of the Leased Property, and
the Tenant shall pay the Deferred Maintenance Obligation pursuant to Section
3.4(b)(iii). Upon such surrender, the Leased Property shall be in compliance
with all Legal Requirements, including, without limitation, all Environmental
Requirements. The Tenant's obligation to observe or perform this covenant shall
survive the Expiration Date or sooner termination of this Lease. Nothing in this
Article 13 shall limit, negate or otherwise affect the Tenant's right to
purchase the Leased Property in accordance with the terms of Article 15.
ARTICLE 14. HOLDING OVER
Section 14.1. Holding Over. If the Tenant holds over possession of the
Leased Property or any part thereof beyond the Expiration Date or sooner
termination of this Lease, such holding over shall not be deemed to extend the
Term or renew this Lease but such holding over shall continue upon the terms,
covenants and conditions of this Lease as a tenant at will except that the
Tenant agrees that the charge for use and occupancy of the applicable portion of
the Leased Property for each calendar month or portion thereof that the Tenant
holds over shall be a liquidated amount equal to one-twelfth (1/12th) of 1.5
times the Basic Rent and Supplemental Rent required to be paid by the Tenant for
such portion of the Leased Property during the calendar year preceding the
Expiration Date or sooner termination of this Lease multiplied by a fraction,
the numerator of which shall be the number of days of such month during which
the Tenant was in possession of such portion of the Leased Property and the
denominator of which shall be the total number of days of such month. The
parties recognize and agree that the damage to the Landlord resulting from any
failure by the Tenant to timely surrender possession of the Leased Property will
be extremely substantial, will exceed the amount of the monthly Basic Rent and
Supplemental Rent payable hereunder and will be impossible to accurately
measure. If the Leased Property is not surrendered upon the Expiration Date or
sooner termination of this Lease, in addition to the use and occupancy charge
set forth above, the Tenant shall indemnify and hold harmless the Landlord
against any and all losses and liabilities resulting therefrom, including,
without limitation, any claims made by any succeeding tenant founded upon such
delay. Nothing contained in this Lease shall be construed as a consent by the
Landlord to the occupancy or possession by the Tenant of the Leased Property
beyond the Expiration Date or sooner termination of this Lease, and the
Landlord, upon said Expiration Date or sooner termination of this Lease, or at
any time thereafter (and notwithstanding that the Landlord may accept from the
Tenant one or more payments called for by this Section 14.1), shall be entitled
to the benefit of all legal remedies that now may be in force or may be
hereafter enacted relating to the immediate repossession of the Leased Property.
The provisions of this Article shall survive the Expiration Date or sooner
termination of this Lease. Nothing in this Article 14 shall limit, negate or
otherwise affect the Tenant's right to purchase the Leased Property in
accordance with the terms of Article 15.
ARTICLE 15. PURCHASE OPTION
Section 15.1. Purchase Option. The Tenant is hereby granted an option
to purchase on the Expiration Date all, but not less than all, of the Individual
Properties comprising the Leased Property, upon the following terms and
conditions:
(a) The option may be exercised not earlier than three hundred
sixty (360) days nor later than two hundred seventy (270) days prior to the
Expiration Date of the Initial Term by notice, as defined herein, to the
Landlord and the Agent. Time shall be of the essence with respect to the
exercise of this purchase option. The option shall apply only to the Expiration
Date of the Initial Term, and not to the Expiration Date of any Renewal Term.
(b) The purchase price for the Leased Property in accordance
with this option, shall be determined as set forth in Section 15.2 below.
(c) This purchase option may not be severed from this Lease or
separately sold, assigned or otherwise transferred. Any such sale, assignment or
transfer or attempted sale, assignment or transfer in violation of the previous
sentence shall be null and void, ab initio.
(d) The Tenant's exercise of this purchase option shall have
no effect on any obligations of the Tenant hereunder nor grant the Tenant any
equitable interest in the Leased Property until the closing of the purchase
pursuant to Section 21.2.
(e) The Landlord shall be entitled to pay and satisfy any
existing liens and encumbrances out of the proceeds of sale received by the
Landlord at closing of title.
(f) The Leased Property shall be conveyed "as is" in its
condition as of closing of title. In addition, there shall be no abatement or
diminution of said purchase price by reason of any fire, casualty or other
damage affecting the Leased Property or any part thereof after the exercise of
this purchase option and prior to closing of title. The Landlord shall, on
closing of title, credit the Tenant with any insurance proceeds received and
retained by the Landlord under insurance policies covering such damage (and not
attributable to the Tenant's lease obligations) and assign to the Tenant all of
the Landlord's rights under any insurance policies covering damage to the Leased
Property.
Section 15.2. Purchase Price; Calculation.
(a) The purchase price for the Leased Property if the purchase
option is exercised by the Tenant as provided herein shall be the Fair Market
Value *[material omitted]
Section 15.3. Procedure. The procedure governing the purchase of the
Leased Property by the Tenant pursuant to this purchase option is set forth in
Article 21 hereof.
Section 15.4. Subperforming Theater Purchase Option.
(a) The Tenant shall have the right, subject to the provisions
of this Section 15.4, to purchase from the Landlord at any time any
Subperforming Theater Property. Such right may be exercised by the Tenant upon
at least 90 days' prior written notice to the Landlord and the Agent. Such
notice shall be accompanied by a certificate of the chief financial officer of
the Tenant, certified to the Landlord and the Agent, stating that such
Subperforming Theater Property meets the definition of "Subperforming Theater
Property" as set forth herein, together with such financial statements and other
documentation supporting or substantiating same as shall be reasonably
acceptable to the Landlord and the Agent.
(b) The purchase price payable by the Tenant for any
Subperforming Theater Property shall be the greater of (i) the unamortized
Allocable Costs attributed to such Subperforming Theater Property and (ii) the
fair market value of such Subperforming Theater Property as of the date of such
purchase, as such fair market value shall be determined by an appraisal (dated
not earlier than 120 days prior to such purchase date) prepared and certified by
an independent MAI appraiser acceptable to the Landlord and the Agent and
submitted to the Landlord and the Agent together with the notice referred to in
Section 15.4(a) above.
(c) In no event shall the Tenant have the right to exercise
the purchase option in this Section 15.4 unless no Event of Default shall have
occurred and be continuing either at the time of the notice set forth in Section
15.4(a) or at the time of the closing of such purchase.
(d) The provisions of Sections 15.1(c), (d) (provided,
however, that it is understood and agreed that the exercise by the Tenant of its
purchase option pursuant to this Section 15.4 may result in a reduction of the
amount of Rent payable by the Tenant hereunder), (e) and (f) above shall apply
with respect to the option granted by this Section 15.4.
Section 15.5. Purchase Upon Casualty Loss.
(a) Upon the occurrence of any of the following events, the
Tenant shall have the option, subject to the provisions of this Section 15.5, to
purchase the affected Individual Property at a price equal to the Stipulated
Loss Value:
(i) the Improvements on or with respect to any
Individual Property shall have been damaged or destroyed to such an extent that
(A) they cannot reasonably be expected by the Tenant to be restored, within a
period of six months, to the condition thereof immediately preceding such damage
or destruction or (B) their normal use and operation is reasonably expected by
the Tenant to be prevented for a period of six months or more; or
--------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
(ii) Title to, or the temporary use of, all or a
significant part of any Individual Property shall have been taken under the
exercise of the power of eminent domain (A) to such extent that such Individual
Property cannot reasonably be expected by the Tenant to be restored within a
period of six months to a condition of usefulness comparable to that existing
prior to the taking or (B) as a result of the taking, normal use and operation
of such Individual Property is reasonably expected by the Tenant to be prevented
for a period of six consecutive months or more.
(b) To exercise such purchase option, the Tenant shall, within
90 days following the event giving rise to the exercise of the option, give
notice to the Landlord, the Agent and the Trustee specifying the date on which
the Tenant will deliver or cause to be delivered the Stipulated Loss Value,
which date shall be not more than 90 days from the date such notice is mailed.
(c) The proceeds of any purchase by the Tenant hereunder shall
be applied by the Landlord, as provided in Section 19.3(c).
Section 15.6. Conveyance of Title. Upon the payment of the Stipulated
Loss Value, the Landlord shall convey title to such Individual Property to the
Tenant in accordance with the provisions of Article 21.
Section 15.7. Special Right of Termination and Purchase. *[material
omitted]
ARTICLE 16. PREMISES SUBJECT TO SECURITY DOCUMENTS QUIET ENJOYMENT
Section 16.1. Quiet Enjoyment. The Leased Property shall be subject to
the Liens of the Applicable Mortgages. This Lease shall be subject and
subordinate to the Liens of the Indenture and the Applicable Mortgages and the
Applicable Assignments of Rents, but neither the Landlord nor any Person
deriving or claiming rights through, under or from Landlord shall, so long as no
Event of Default shall have occurred and be continuing and subject to the terms
of this Section 16.1, take any action contrary to the Tenant's rights under this
Lease to the use, quiet enjoyment and possession of the Leased Property. So long
as no Event of Default shall have occurred and be continuing, if the Tenant pays
the Rent it is obligated hereunder to pay, and observes all other terms,
covenants and conditions thereof, it may peaceably and quietly have, hold and
enjoy the Leased Property during the Term, subject, however, to all the terms of
this Lease. No failure by the Landlord to comply with the foregoing covenant
shall give the Tenant any right to cancel or terminate this Lease or to xxxxx,
reduce or make any deduction from or offset against any Rent or any other sum
payable under this Lease, or to fail to perform any other obligations of the
Tenant hereunder; provided, however, that the Tenant shall retain all other
remedies available under this Lease or by law by reason of a breach of such
covenant; provided further, however, that the rights of the Tenant hereinabove
in this Section 16.1 described shall be subject and subordinate in all respects
to the rights and remedies of the Agent in the Security Documents upon the
occurrence of an event of default under the Reimbursement Agreement. Each
Individual Property comprising the Leased Property is demised and let subject to
(a) the existing state of the title thereto as of the Individual Commencement
Date, (b) any state of facts which an accurate survey or physical inspection
thereof might show, (c) all zoning regulations, restrictions, rules and
-----------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
ordinances, building restrictions and other laws and regulations now in effect
or hereafter adopted by any Governmental Authority, (d) the condition of any
buildings, structures and other improvements located thereon, as of the
Individual Commencement Date, without representation or warranty by the Landlord
and (e) the Lien of the Security Documents, subject only to the first sentence
of this Section 16.1. By its execution and delivery of each Lease Supplement,
the Tenant shall be deemed to have examined the title to and the condition of
the Supplemental Property which is the subject of such Lease Supplement and to
have accepted same as satisfactory to it.
ARTICLE 17. EVENTS OF DEFAULT, REMEDIES
Section 17.1. Events of Default. An Event of Default hereunder means
the occurrence of any one or more of the following events:
(a) The Tenant fails to:
(i) make any Basic Rent Payment when due; or
(ii) [Intentionally Omitted]; or
(iii) make any Supplemental Rent Payment (other than
any payment pursuant to Section 4.3) when due and in accordance with the Payment
Direction Agreement and such failure continues for five (5) Business Days after
the date such payment is due; or
(iv) [Intentionally Omitted]; or
(v) subject to the provisions of Section 17.9 below,
renew the Letters of Credit, or provide Alternate Letters of Credit, in
accordance with the terms of this Lease; or
(b) Breach by the Tenant of any of the covenants contained in
Sections 2.1(a)(iii), 2.1(s)(x), 2.1(t), 2.1(u), 2.1(v), 2.1(w), 2.1(x), 2.1(z),
4.3 or the first sentence of Section 22.1(a); or
(c) Any Obligation of the Tenant other than those described in
Sections 17.1(a) and (b) is not performed and discharged as and when required,
and the failure, refusal or neglect to perform and discharge such Obligation
continues for a period of thirty (30) days after the Tenant has been given
notice thereof or such shorter period and without notice if so specified in any
other provision of this Lease; or
(d) Any representation or warranty made by the Tenant herein,
in any Transaction Document to which it is a party or any certificate, statement
or other instrument delivered by the Tenant hereunder or thereunder, shall prove
to be false or misleading in any material respect when made; or
(e) The Tenant becomes insolvent or fails, or admits in
writing its inability, to pay its debts as they mature or applies for, consents
to, or acquiesces in the appointment of a trustee, receiver or custodian for the
Tenant or a substantial part of its property; or in the absence of such
application, consent or acquiescence, a trustee, receiver or custodian is
appointed for the Tenant or a substantial part of its property and is not
discharged within sixty (60) days; or any bankruptcy, reorganization, debt
arrangement, moratorium or any case or proceeding under bankruptcy or insolvency
law, or any dissolution or liquidation proceeding, is instituted by or, if
permitted by law, against the Tenant and, if instituted against the Tenant, is
consented to or acquiesced in by the Tenant or is not dismissed within sixty
(60) days, or if an "order for relief" is entered at any time in any such case
under the Bankruptcy Code; or
(f) The entering of an order or decree appointing a receiver
for the Leased Property or for any part thereof or for the revenues thereof with
the consent or acquiescence of the Tenant or the entering of such order or
decree without the acquiescence or consent of the Tenant and such order or
decree shall not be vacated, discharged or stayed within sixty (60) days after
the date of such entry; or
(g) An Event of Default shall occur under the Credit
Agreement; or
(h) [INTENTIONALLY OMITTED]; or
(i) Any performance bonds required to be delivered under any
Applicable Construction Agreement shall not have been so delivered when due and
such failure shall have continued for thirty (30) days.
(j) The Tenant or any Restricted Subsidiary shall fail to make
any payment in respect of Debt or Off-Balance Sheet Lease in an aggregate amount
in excess of $3,000,000 outstanding when due or within any applicable grace
period; or
(k) Any event or condition shall occur which results in the
acceleration of the maturity of Debt or any Off-Balance Sheet Lease in an
aggregate amount in excess of $3,000,000 outstanding of the Tenant or any
Restricted Subsidiary or the mandatory prepayment or purchase of such Debt or
any Off-Balance Sheet Lease by the Tenant (or its designee) or such Restricted
Subsidiary (or its designee) prior to the scheduled maturity thereof, or enables
the holders of such Debt or any Off-Balance Sheet Lease or any Person acting on
such holders' behalf to accelerate the maturity thereof or require the mandatory
prepayment or purchase thereof prior to the scheduled maturity thereof, without
regard to whether such holders or other Person shall have exercised their right
to do so; or
(l) One or more judgments or orders for the payment of money
in an aggregate amount in excess of $500,000 shall be rendered against the
Tenant or any Restricted Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 days; or
(m) A federal tax lien shall be filed against the Tenant under
Section 6323 of the Code or a lien of the PBGC shall be filed against the Tenant
or any Restricted Subsidiary under Section 4068 of ERISA and in either case such
lien shall remain undischarged for a period of 25 days after the date of filing;
or
(n) There occurs a Change of Control.
Upon the occurrence of an Event of Default hereunder, all obligations of the
Tenant under this Lease shall remain in full force and effect.
Section 17.2. Tenant Obligations on Default. Upon the occurrence of an
Event of Default as described in Section 17.1 hereof, the Tenant shall
immediately:
(a) prepay all Rent due and to become due hereunder in an
amount equal to one hundred ten (110%) percent of the Unamortized Total Project
Cost; or
(b) cause one or more Persons to purchase, on terms which are
satisfactory to the Landlord in all respects, all, but not less than all, of the
Individual Properties comprising the Leased Property for an aggregate purchase
price of not less than one hundred ten (110%) percent of the Unamortized Total
Project Cost.
Section 17.3. Landlord Remedies. Upon the occurrence of an Event of
Default as described in Section 17.1 hereof, the Landlord shall have the right,
without any further demand or notice, to take one or any combination of the
remedial steps below:
(i) With or without terminating this Lease, re-enter
and take possession of the Leased Property or any part thereof and exclude the
Tenant from using it; provided that the Tenant shall continue to be responsible
for the Rent Payments due during the remainder of the Term; or
(ii) With or without terminating this Lease, re-enter
and take possession of the Leased Property or any part thereof and sell or lease
its interest in the Leased Property or any part thereof; or
(iii) With or without terminating this Lease, (A)
transmit written notice to the Trustee of the occurrence and continuance of an
Event of Default under this Lease and (B) declare all Rent Payments to be
immediately due and payable by the Tenant, whereupon such amounts shall, subject
to Section 17.2 above, be immediately due and payable; or
(iv) Take whatever action at law or in equity may
appear necessary or desirable to collect the Rent Payments then due and
thereafter to become due with respect to the Leased Property or enforce
performance and observance of any obligation, agreement or covenant of the
Tenant under this Lease; or
(v) Perform the Obligations of the Tenant which gave
rise to the existence of the Event of Default, in which event the Tenant shall
be obligated to reimburse to the Landlord or the Agent all expenses incurred by
the Landlord or the Agent as the result of the performance by the Landlord or
the Agent of the Obligations of the Tenant together with interest thereon at the
rate then in effect for the applicable Series of Bonds from the date of
expenditure; or
(vi) Exercise the rights, powers and remedies
described in Section 32.15(b)(v).
Section 17.4. Election of Remedies; No Waiver of Elected Remedies. No
failure on the part of either Party to exercise, and no delay in exercising any
right or remedy so provided for herein, shall operate as a waiver thereof, nor
shall any single or partial exercise by either Party of any right or remedy so
provided hereunder preclude any other or further exercise of any other right or
remedy provided hereunder.
Section 17.5. No Additional Waiver Implied by One Waiver. In the event
any agreement contained in this Lease should be breached by either Party and
thereafter waived by the other Party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder, and shall not be construed to be an implied term hereof or a course
of dealing between the parties hereto.
Section 17.6. Agreement to Pay Attorneys' Fees and Expenses. If a
Default shall exist under any of the provisions hereof and the Landlord or the
Agent should employ attorneys or incur other expenses for the collection of
moneys or the enforcement or performance or observance of any obligation or
agreement on the part of the Tenant herein contained, the Tenant agrees that it
will on demand therefor pay to the Landlord or the Agent the reasonable fee of
such attorneys and such other expenses so incurred by the Landlord or the Agent.
Section 17.7. Late Charges. Whenever any payment of Rent is not made
when due, the Tenant promises to pay the Landlord, in addition to the amount
due, interest thereon at the rate then in effect for the applicable Series of
Bonds; provided, however, that this Section 17.7 shall not be applicable if or
to the extent that the application thereof would affect the validity of this
Lease.
Section 17.8. Delay; Notice. No delay or omission to exercise any right
or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right or power may be
exercised from time to time and as often as may be deemed expedient, and any one
exercise thereof shall not be deemed an exclusive exercise. To entitle the
Landlord to exercise any remedy reserved to it in this Lease, it shall not be
necessary to give any notice other than as may be specifically required in this
Lease.
Section 17.9. Conversion to Fixed Rate. Pursuant to the terms of the
Indenture, the Bonds are subject to conversion to a fixed rate of interest in
the event that the Tenant achieves an investment grade rating from the Rating
Agencies, all as more particularly described in the Indenture. Notwithstanding
anything to the contrary contained herein, the Tenant's failure to renew the
Letters of Credit, or provide an Alternate Letters of Credit, in accordance with
the terms of this Lease shall not constitute an Event of Default hereunder in
the event that the interest rate on the Bonds is converted to a fixed rate
pursuant to the Indenture prior to the expiration of the Letters of Credit or
Alternate Letters of Credit, as the case may be.
ARTICLE 18. SUBORDINATION AND ESTOPPEL
Section 18.1. Subordination of Lease. This Lease and all rights of the
Tenant hereunder are subject and subordinate at all times to all of the
Applicable Mortgages, whether existing on and as of the date hereof or hereafter
executed and delivered by the Landlord to the Agent, and all renewals,
modifications, consolidations, replacements and extensions thereof (collectively
and including the Security Documents, "Secured Interests"). Tenant acknowledges
that such assignments and security interests provide for the exercise by the
Agent of all rights, other than Reserved Rights, of Landlord hereunder to give
any consents, approvals, waivers, notices or the like, to make any elections,
demands or the like or to take any other discretionary action hereunder,
including the exercise of remedies, except as specifically set forth in the
Applicable Mortgages. To the extent, if any, that this Lease constitutes chattel
paper (as such term is defined in the Uniform Commercial Code as in effect in
any Applicable State), no security interest in this Lease may be created through
the transfer or possession of any counterpart of this Lease other than the
original counterpart, which shall be identified as the counterpart containing
the receipt therefor executed by Agent on or immediately following the signature
page thereof. This clause shall be self-operative and no further instrument or
subordination shall be required by the Agent. In confirmation of such
subordination, the Tenant shall execute promptly any reasonable instrument that
the Landlord may request. The Tenant further agrees at the option of the Agent
to attorn to the holder of any Secured Interest following the foreclosure of
such Secured Interest or the granting of a deed in lieu thereof.
Section 18.2. [Intentionally Omitted].
Section 18.3. Estoppel Certificate. The Tenant shall at any time and
from time to time within ten (10) days of receipt of written request therefor by
the Landlord or the Agent, execute, acknowledge and deliver to the Landlord and
the Agent an estoppel certificate, in form reasonably satisfactory to the
Landlord and the Agent, certifying (i) that this Lease is unmodified and in full
force and effect (or, if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), (ii) the dates to
which Basic Rent and Supplemental Rent have been paid in advance, if any, (iii)
whether any extension options granted to the Tenant pursuant to the provisions
of this Lease have been exercised, (iv) whether or not to the best knowledge of
the signer, the Landlord is in default in performance of any of its obligations
under this Lease, and if so, specifying each such default of which the Tenant
may have knowledge, (v) whether the Tenant has received notice that it is in
default in performance of any of its obligations under this Lease, and if so,
specifying each such default and (vi) as to any other matters reasonably
requested by the Landlord, it being intended that any such certificate delivered
pursuant to this Section 18.3 may be relied upon by a prospective purchaser of
the Landlord's interest or a mortgagee of the Landlord's interest or assignee of
any Applicable Mortgage of the Landlord's interest in the Leased Property or any
other party which the Landlord wishes to receive said estoppel certificate.
ARTICLE 19. DAMAGE, DESTRUCTION AND CONDEMNATION; USE OF NET PROCEEDS
Section 19.1. Damage and Destruction.
(a) If any of the Improvements or any portion thereof located
on or at any Individual Property is destroyed or is damaged by fire or other
casualty, the Tenant shall have the option either (i) to promptly repair,
restore, modify, improve or replace the Improvements, in which event the Tenant
shall be obligated to continue to pay the Rent due hereunder; or (ii) if the
damage or destruction is of the extent described in Section 15.5, and the amount
of Net Proceeds is sufficient to pay the Allocable Costs with respect to such
Individual Property, to exercise its option set forth in Section 15.5.
(b) Any Net Proceeds shall be paid to the Trustee and
deposited in the Project Fund to be disbursed as set forth in the Indenture. In
the event the Tenant elects to repair, restore, modify, improve or replace the
Improvements pursuant to clause (a)(i) above, any Net Proceeds shall be applied
to pay the cost of such repair, restoration, modification or replacement. In the
event the Tenant elects to prepay the Rent and cause the optional redemption of
the Bonds in accordance with clause (a)(ii) above and Section 15.5, any Net
Proceeds shall be credited against the Tenant's Rent prepayment obligations and
applied to the redemption of the Bonds. To the extent that the amount of the Net
Proceeds deposited in the Project Fund exceed the amount required to be
disbursed therefrom by the Trustee pursuant to this Section, one hundred (100%)
percent of such excess amount shall be paid by the Trustee from the Project Fund
to the Agent to be held by the Agent in the Net Proceeds Collateral Reserve
Account pursuant to Section 5.15 of the Reimbursement Agreement. When all
Reimbursement Obligations payable under the Reimbursement Agreement and
Reimbursement Notes have been paid in full, the Letters of Credit are no longer
outstanding and the balance of the Preferred Member's Unrecovered Capital
Account has been reduced to zero, the Agent shall immediately pay any such
amounts remaining in the Net Proceeds Collateral Reserve Account to the Landlord
to be held by the Landlord in the Reserve Fund for disbursement in accordance
with Section 19.7 hereof.
Section 19.2. Net Proceeds.
(a) If the Net Proceeds are insufficient to pay in full the
cost of any repair, restoration, modification, improvement or replacement of the
Improvements and the damage or destruction is not of the extent or nature
described in Section 15.5, the Landlord shall make available to the Tenant any
amounts on deposit in the Reserve Fund and cause the Agent to make available any
amounts on deposit in the Net Proceeds Collateral Reserve Account in an amount
equal to the cost in excess of the Net Proceeds. If the Net Proceeds, together
with any amounts available from the Reserve Fund and/or the Net Proceeds Reserve
Account, are insufficient to pay in full the cost of any repair, restoration,
modification, improvement or replacement of the Improvements and the damage or
destruction is not of the extent or nature described in Section 15.5, the Tenant
shall complete the work and pay any cost in excess of the amount of the Net
Proceeds. If by reason of any such insufficiency of the Net Proceeds, the Tenant
shall make any payments pursuant to the provisions of this Section 19.2, the
Tenant shall not be entitled to any reimbursement therefor from the Landlord nor
shall the Tenant be entitled to any diminution of the Rent Payments due with
respect to the Leased Property nor shall Tenant have any legal or equitable
ownership interest in the property acquired with moneys provided Tenant and
utilized in such repair, restoration, modification or replacement.
(b) In the event that the Tenant exercises its option to pay
Stipulated Loss Value and cause the optional redemption of the Series A Bonds
pursuant to Section 15.5, one hundred (100%) percent of any surplus proceeds,
after payment of the Stipulated Loss Value and other amounts set forth in
Section 15.5, from any of the insurance policies, shall be paid by the Trustee
from the Project Fund to the Agent to be held by the Agent in the Agent Reserve
Fund created pursuant to the Reimbursement Agreement. When no Series A Bonds are
Outstanding and all Reimbursement Obligations payable under Section 2.01(e)(i)
of the Reimbursement Agreement have been paid in full, the Agent shall
immediately pay any amounts remaining in the Agent Reserve Fund (i) fifty (50%)
to the Landlord and (ii) fifty (50%) to be held by the Landlord in the Reserve
Fund.
Section 19.3. Total and Partial Taking.
(a) If at any time during the Term, the whole or substantially
all of any Individual Property shall be taken for or under threat of public or
quasi-public purposes by any lawful power or authority by the exercise or the
threatened exercise of the right of condemnation or eminent domain, or if a
portion of any Individual Property shall be so taken so as to render, in the
Tenant's reasonable opinion, the continued operation of the remaining part or
parts of such Individual Property for the purposes for which it was used
immediately prior to such taking uneconomical, then the Tenant shall prepay Rent
pursuant to Section 15.5.
(b) In the event of such a taking of only a portion of any
Individual Property which does not materially adversely affect the value of such
Individual Property and which, in the Tenant's reasonable opinion, does not
render uneconomical the continued operation of the remaining portion of such
Individual Property for the purpose for which same was used immediately prior to
such taking or for any other purpose desired by the Tenant, then this Lease
shall terminate on the date of such taking only as to the portion of such
Individual Property so taken, and shall continue as to balance of the Leased
Property, including without limitation the part of such Individual Property not
so taken; Neither the Landlord nor the Tenant shall instigate or encourage any
condemnation or similar proceeding affecting the Leased Property or any part
thereof.
(c) All awards resulting from any taking as set forth in this
Section 19.3 shall be distributed in the following order of priority: (i) first,
to make any necessary restorations of the remaining portion of the Individual
Property, (ii) second, to the Trustee to be applied pro rata to the interest
accrued on the Outstanding Series A Bonds and Series B Bonds and the Return on
Landlord's Equity Amount, (iii) third, to the Trustee to be applied pro rata to
the redemption of the Outstanding Series B Bonds, (iv) fourth, to the Trustee to
be applied pro rata to the redemption of the Series A Bonds, (v) fifth, to the
repayment of the Landlord's Equity Amount, (vi) sixth, to the Agent in payment
of all amounts due under the Reimbursement Agreement; and (vii) seventh, one
hundred (100%) percent of such excess amount shall be paid by the Trustee from
the Project Fund to the Agent to be held by the Agent in the Agent Reserve Fund
created pursuant to the Reimbursement Agreement. When no Bonds are Outstanding
and all Reimbursement Obligations payable under the Reimbursement Agreement and
the Reimbursement Notes have been paid in full, the Agent shall immediately pay
any amounts remaining in the Agent Reserve Fund (A) fifty (50%) to the Landlord
and (B) fifty (50%) to be held by the Landlord in the Reserve Fund for
disbursement as set forth in Section 19.7.
(d) The terms and provisions of this Section 19.3 shall
survive the termination of this Lease.
Section 19.4. Temporary Taking. If the whole or any portion of any
Individual Property shall be taken for temporary use or occupancy, the Term
shall not be reduced or affected and the Tenant shall continue to pay the Rent
in full. Except to the extent the Tenant is prevented from so doing pursuant to
the terms of the order of the condemning authority, the Tenant shall continue to
perform and observe all of the other covenants, agreements, terms, and
provisions of this Lease. In the event of any temporary taking, the Tenant shall
be entitled to receive the entire amount of any award therefor unless the period
of temporary use or occupancy shall extend beyond the Expiration Date, in which
case such award, after payment to the Landlord therefrom for the estimated cost
of restoration of such Individual Property to the extent that any such award is
intended to compensate for damage to such Individual Property, shall be
apportioned between the Tenant and the Landlord as of the day of Expiration Date
in the same ratio that the part of the entire period for such compensation is
made falling before the day of expiration and that part falling after, bear to
such entire period.
Section 19.5. Cooperation of Landlord. The Landlord shall cooperate
fully with the Tenant at the sole expense of the Tenant in filing any proof of
loss with respect to any insurance policy covering the casualties described in
Section 19.1 and in the prosecution or defense of any prospective or pending
condemnation proceeding with respect to any Individual Property or any part
thereof. In no event will the Landlord voluntarily settle, or consent to the
settlement of, any proceeding arising out of any insurance claim or any
prospective or pending condemnation proceeding with respect to any Individual
Property or the Improvements or any part thereof without the prior written
consent of the Tenant (provided that no Event of Default shall have occurred and
be continuing) and, so long as any Bonds are Outstanding, the prior written
consent of the Agent.
Section 19.6. No Waiver. Nothing contained herein shall be construed as
a waiver by the Tenant of any claim which it may have against the condemnor for
taking all or any part of any Individual Property, and the Tenant, to the extent
permitted by the laws of the Applicable State, shall have the right to appear
and file its claim for damages in any such condemnation proceedings, to
participate in any and all hearings, trials and appeals thereon, to be
represented by counsel of its choice therein, and to receive the share of any
such awards so adjudicated to be due it.
Section 19.7 Reserve Fund.
(a) Landlord shall hold all amounts required to be deposited
in the Reserve Fund in trust and shall maintain such funds in a separate
account, segregated from the Landlord's other assets. Prior to disbursement in
accordance with the terms hereof, amounts on deposit in the Reserve Fund shall
be invested in Qualified Investments.
(b) Amounts on deposit in the Reserve Fund shall be disbursed
as follows:
(i) to the Tenant in accordance with Section 19.2
hereof, to the extent the Net Proceeds are insufficient to pay in full the cost
of any repair, restoration, modification, improvement or replacement of the
Improvements;
(ii) upon the termination of the Lease and the
surrender of the Leased Property by the Tenant, an amount not in excess of the
Deferred Maintenance Obligation shall be disbursed to the Landlord in payment of
the Deferred Maintenance Obligation under Section 3.4(b)(iii) hereof, and any
remaining amounts shall be disbursed to the Tenant;
(iii) upon the exercise by Tenant of its first
extension option, all amounts on deposit shall be disbursed to the Trustee to be
applied pro rata to the redemption of the Outstanding Series B Bonds; and
(iv) upon the purchase by the Tenant of any of the
Leased Properties in accordance with the terms hereof, the amounts on deposit
shall be disbursed to the Landlord to be credited against the purchase price
payable therefor.
ARTICLE 20. PREPAYMENT OF RENT
Section 20.1. No Optional Prepayment. Except as set forth in Sections
15.4 and 15.5, the Tenant shall have no right to prepay Rent during the Term of
this Lease.
Section 20.2. Mandatory Prepayment. Upon the occurrence of the event
described in Section 2.01(b) of the Reimbursement Agreement, an amount equal to
the amount payable pursuant to such Section 2.01(b), if required thereunder.
Upon any prepayment pursuant to this Section 20.2, the Landlord and the Tenant
agree to amend the Basic Rent schedule set forth in Exhibit H attached hereto
and made a part hereof to appropriately reflect, on a pro rata basis, the effect
of such prepayment.
ARTICLE 21. PROCEDURE UPON PURCHASE
Section 21.1. State of Title. In the event of the purchase of the
Leased Property by the Tenant pursuant to the purchase option contained in
Article 15 of this Lease, the Landlord need not transfer and convey to the
Tenant or its designee (or, in the case of any Individual Property which is
ground leased by the Landlord, there need not exist on the date such ground
lease is assigned to the Tenant) any better title to each Individual Property
than existed on the date the Landlord acquired title to such Individual
Property, or entered into a ground lease for such Individual Property, and the
Tenant shall accept such title, subject, however, to all Permitted Encumbrances,
and to all applicable Legal Requirements, but free of the Lien of and security
interest created by any Secured Interests and free of any Liens, encumbrances,
charges, exceptions and restrictions which have been created by or resulted from
acts of the Landlord during the Term which were not consented to or requested by
the Tenant.
Section 21.2. Closing Requirements. Upon the closing date of such
purchase by the Tenant of the Leased Property pursuant to the purchase option
contained in Article 15 of this Lease, such date being the Expiration Date, the
Tenant shall pay to the Trustee or, if no Bonds shall be Outstanding, to the
Landlord, or to any persons designated by the Landlord in a written notice
delivered by the Landlord to the Tenant not less than three (3) days prior to
the closing date, by certified check, bank check or in federal funds, as the
Trustee or the Landlord may designate, at the place within the continental
United States designated in such notice, the purchase price therefor specified
in Section 15.2 herein, and the following shall then occur:
(a) The Landlord shall deliver to the Tenant such documents,
including without limitation deeds, assignments of leases and bills of sale, as
shall be necessary to convey and transfer the title to each Individual Property
to the Tenant or, in the case of any Individual Property which is ground leased
by the Landlord, to assign the Landlord's interest in such Individual Property
to the Tenant; provided, however, that in the case of the assignment of any such
ground lease, the Landlord shall also provide to the Tenant evidence of the
ground lessor's consent to such assignment;
(b) The Tenant shall pay (or reimburse the Landlord for) all
costs, fees and charges incident to such conveyance and transfer, including,
without limitation, reasonable counsel fees, escrow fees, recording fees, title
insurance premiums, mortgage prepayment penalties and all applicable federal,
state and local taxes (other than federal income taxes and state and local taxes
imposed upon or measured by net income) which may be incurred or imposed by
reason of such conveyance and transfer and by reason of the delivery and/or
recording of such deed and such other instruments;
(c) The Tenant shall transmit written notice to the Landlord
directing the Landlord to cause the optional redemption of any and all Bonds
Outstanding;
(d) Upon (i) receipt by the Landlord of the notice described
in Section 21.2(c) and (ii) the receipt by the Trustee of the purchase price of
the Leased Property, the Landlord shall promptly cause the Trustee to redeem any
and all Bonds Outstanding pursuant to the terms of the Indenture and to apply
all or a portion of the purchase price to the redemption of such Outstanding
Bonds; and
(e) Upon (i) completion of the purchase of the Leased Property
pursuant to this Article 21, (ii) the payment of the purchase price therefor
specified herein, and (iii) the optional redemption of all Bonds Outstanding,
but not prior to the occurrence of (i), (ii) and (iii) herein, this Lease and
all obligations hereunder (including the obligations to pay the Basic Rent and
Supplemental Rent) shall terminate with respect to the Leased Property except
with respect to actual or contingent obligations and liabilities of the Tenant
under this Lease which arose on or prior to such closing date.
ARTICLE 22. INSURANCE
Section 22.1. General Provisions.
(a) The Tenant shall, at its sole cost and expense, carry or
cause to be carried the insurance coverages set forth in this Article on each
Individual Property. Copies of certificates evidencing such coverages shall be
delivered to the Landlord and the Agent.
(b) The Tenant expressly understands and agrees that any
insurance protection required by this Lease shall in no way limit the Tenant's
obligations assumed under this Lease, and shall not be construed to relieve the
Tenant from liability with respect to the deductible and/or self retention
provisions which may be contained therein and which may be applicable to any
claim or loss for which insurance is provided, nor from any other liability in
excess of such coverage, nor shall it preclude the Landlord or the Agent from
taking such other actions as are available to it under any provisions of this
Lease or otherwise in law.
(c) All insurance provided for in this Lease shall be effected
under valid and enforceable policies, in such forms and, from time to time after
the Commencement Date, issued by financially sound and responsible insurance
companies authorized to do business in the Applicable State which have been
approved by the Landlord and the Agent (which approvals shall not be
unreasonably withheld provided such companies have a Best policyholder rating of
not less than A- and a Best financial size rating of not less than VII). At
least 10 days before each Individual Commencement Date, and thereafter not less
than 15 days prior to the expiration dates of the policies theretofore furnished
pursuant to this Article, originals of the policies (or certificates of the
insurers in form reasonably satisfactory to the Landlord) for each Individual
Property, accompanied by evidence satisfactory to the Landlord and the Agent of
payment of the first installment of the premiums, shall be delivered by the
Tenant to the Landlord, it being understood that such insurance may be provided
under blanket policies maintained by the Tenant, in which event the Tenant shall
provide evidence that (x) such policy is in full force and effect, (y) the
Tenant has paid all amounts then due thereunder and (z) the Improvements are
included as insurance property under the terms of such policy.
(d) The Tenant, the Landlord and the Agent will review every
two years the amounts of coverage provided taking into account all material
facts including inflation and the full insurable value of the Improvements. The
Landlord or the Agent may require additional amounts of coverage provided such
additional amounts are consistent with the amounts of insurance customarily
provided by owners or tenants of similar properties.
(e) All policies of insurance provided for or contemplated by
this Article shall name the Landlord and the Tenant and, for so long as the
Letters of Credit, or any of them, or any Obligations, shall be outstanding, the
Agent as the insured, additional insured or loss payee, as their respective
interests may appear.
(f) All policies of insurance provided for in this Article
shall, to the extent reasonably obtainable, contain clauses or endorsements to
the effect that:
(i) No act of negligence of the Tenant, or anyone
acting for the Tenant, or of any space tenant which might otherwise result in a
forfeiture of such insurance or any part thereof shall in any way affect the
validity or enforceability of such insurance insofar as the Landlord or the
Agent is concerned; and
(ii) Such policies shall not be changed or canceled
without at least 30 days' notice (10 days' notice for nonpayment) to the
Landlord and the Agent; and
(iii) The Landlord shall not be liable for any
premiums thereon or subject to any assessments thereunder.
(g) The Tenant shall not carry separate or additional
insurance, concurrent in form or contributing in the event of any loss with any
insurance required to be maintained by the Tenant under this Lease, unless such
separate or additional insurance shall comply with and conform to all the
provisions and conditions of this Article 22 and the Landlord and the Agent
consent in writing to such separate additional or concurrent insurance, which
consent shall not be unreasonably withheld. The Tenant shall promptly give
notice to the Landlord and the Agent of such separate or additional insurance
and shall promptly deliver to the Landlord and the Agent a certificate of
insurance in form reasonably satisfactory to each of them.
(h) In respect of any real, personal or other property located
in, at or upon the Leased Property, and in respect of the Leased Property, the
Tenant hereby releases the Landlord and the Agent and the Lenders from any and
all liability or responsibility to the Tenant or anyone claiming by, through or
under the Tenant, by way of subrogation or otherwise, for any loss or damage
caused by fire or any other casualty whether or not such fire or other casualty
shall have been caused by the fault or negligence of the Landlord, the Trustee
or anyone for whom the Landlord or the Trustee may be responsible. The Tenant
shall require its insurance carriers to include in the Tenant's policies a
clause or endorsement, if reasonably obtainable, whereby the Tenant shall be
permitted to release other persons without invalidating the insurance, or, if
not obtainable, the Tenant shall cause the Landlord and the Trustee to be named
as insureds under such policies.
Section 22.2. General Liability.
(a) The Tenant shall, at its own cost and expense, provide
comprehensive general liability insurance written on a commercial liability
occurrence form against any liability of the Tenant, the Trustee, the Agent, the
Lenders and the Landlord with respect to each Individual Property and arising
from the maintenance, use, ownership and occupancy of such Individual Property.
Said insurance shall not be circumscribed by any endorsement limiting the
breadth of coverage. The insurance shall include the following coverages: (i)
Premises/Operations Liability; (ii) Contractor's Protective Liability/Products;
(iii) Products/ Completed Operations Liability; (iv) Broad Form Contractual
Liability applicable to the indemnity requirements of this Lease; (v) Extended
Bodily Injury Liability; (vi) Broad Form Property Damage Liability; and (vii)
Personal Injury Liability.
(b) The general liability policy shall include the Landlord,
the Agent and the Trustee as additional insureds. Said policy or policies shall
provide for indemnification of said parties against direct or contingent loss or
liability for damages for bodily and personal injury, death or property damage
occasioned by the operation or ownership of such Individual Property. The
Tenant's general liability policy or policies shall provide single limit
coverage of at least $2,000,000 for each Individual Property. The foregoing
limits may be obtained through the General Liability Policy or a combination of
General Liability and Excess or Umbrella Liability. The Net Proceeds of such
liability insurance shall be applied toward extinguishment or satisfaction of
the liability with respect to which the Net Proceeds of such insurance shall
have been paid.
Section 22.3. Auto Liability Insurance. The Tenant shall, at its sole
cost and expense, keep Business Automobile Liability insurance covering all
owned, non-owned and hired vehicles used in connection with the Tenant's
operations at each Individual Property in protection of the Tenant, the
Landlord, the Agent and the Trustee. Said policy or policies shall be written in
a comprehensive form and shall comply with all local regulations and case law
and shall provide for indemnification of said parties against direct or
contingent loss or liability for damages for bodily and personal injury, death
or property damage arising from the maintenance, use or operation of any owned
or non-owned vehicle used, in or in connection with, such Individual Property.
Said policy or policies shall provide single limit coverage of at least
$1,000,000 for bodily injury or death of each person and for damage to property.
Such auto liability insurance may be maintained as part of or in conjunction
with any other liability insurance coverage carried or required to be carried by
the Tenant. The Net Proceeds of such liability insurance shall be applied toward
extinguishment or satisfaction of the liability with respect to which the Net
Proceeds of such insurance shall have been paid.
Section 22.4. Builders' Risk Insurance. During construction of the
Improvements at or on any Individual Property, the Tenant shall, at the Tenant's
sole cost and expense, keep, or cause to be kept, Builders' Risk Insurance
(standard "all risk") written on a completed value (nonreporting) basis.
Coverage will include collapse and insure against the peril of fire with
extended coverage including vandalism and malicious mischief. In addition, if
commercially available at a reasonable cost, such policy of insurance shall
cover perils caused by earthquake and flood and shall be endorsed to cover
materials in transit. The policy shall name the Tenant as the insured and the
Landlord, the Trustee, the Agent and all subcontractors employed by the Tenant
as additional insureds as their interests may appear. Such insurance policy: (a)
shall contain a written acknowledgment (annexed to the policy) by the insurance
company that its rights of subrogation have been waived with respect to all of
the insureds and any mortgagees in such policy, and an endorsement stating that
"permission is granted to complete and occupy"; and (b) if any off-site storage
location is used, shall cover, for their insurable value, all materials and
equipment at any off-site storage location used with respect to the Improvements
and such Individual Property and such locations shall be identified.
Section 22.5. Worker's Compensation and Employer's Liability.
The Tenant shall, at its own cost and expense, provide
Workers' Compensation insurance and Employer's Liability Insurance covering all
employees on, in, or about the Leased Property in accordance with all Legal
Requirements, to be endorsed to include coverage for any federal or other state
laws that may be found to have legal jurisdiction.
Section 22.6. Property Insurance.
(a) The Tenant shall, at its sole cost and expense keep and
maintain in force Comprehensive All Risk Property Insurance on the Improvements
and Equipment situated at each Individual Property, including coverage against
loss or damage by fire, collapse, lightning, water damage, windstorm, tornado,
hail, flood (if required by any Legal Requirement), vandalism and malicious
mischief, sprinkler breakage, earthquake (if required by any Legal Requirement)
subsidence, debris removal, demolition and against loss or damage by such other,
further and additional risks as now are or hereafter may be embraced by the
standard all risk coverage forms of endorsements, in each case: (i) in an amount
equal to the greater of (x) 100% of their "Replacement Value," which for
purposes of this Lease shall mean actual replacement value or (y) an amount at
least equal to the sum of the principal amount of all Outstanding Bonds and the
Landlord's Equity Amount, together with interest thereon for a period of not
less than six months calculated at the Maximum Rate; (ii) containing an agreed
amount endorsement with respect to such Improvements and Equipment waiving all
co-insurance provisions; and (iii) containing an endorsement that all covered
losses will be paid on a replacement cost basis.
(b) [Intentionally Omitted]
(c) Any insurance required to be provided by the Tenant under
this Section 22.6 may be provided by blanket insurance covering all of the
Individual Properties comprising the Leased Property, provided that (i) such
blanket insurance complies with all of the other requirements of this Lease,
(ii) the amounts payable to the Landlord, the Agent and the Trustee under such
blanket insurance shall be payable whether or not the Tenant, as an additional
insured, may be otherwise entitled to any proceeds of the policy and (iii) the
insurance protection to be provided hereunder for the Landlord, the Agent and
the Trustee is not impaired or diminished by such blanket insurance or inclusion
of the Tenant as an insured thereunder.
(d) The Tenant shall also, at its sole cost and expense, keep
boiler and machinery insurance, if applicable, on an extended comprehensive
basis with a joint agreement if there are two separate policies.
Section 22.7. [Intentionally Omitted].
Section 22.8. [Intentionally Omitted].
Section 22.9. Umbrella or Excess Liability. If reasonably available,
standard clause must be attached to any umbrella or excess liability policy
providing that the self insured retention will "drop down" and be considered
primary in the event the aggregate primary limits become impaired.
Section 22.10. Net Proceeds of Insurance; Form of Policies. Each policy
of insurance obtained pursuant to or required by this Article 22 shall provide
that all proceeds thereunder (excluding proceeds of liability or workers'
compensation insurance) shall be payable to the Landlord and to the Agent, as
their interests may appear. The Tenant shall pay or cause to be paid when due
the premiums for all insurance policies required by this Lease, and shall
promptly furnish or cause to be furnished to the Landlord and the Agent evidence
of such payments. All such policies shall provide that the Agent and the
Landlord shall be given not less than thirty (30) days' notice (10 days' notice
for nonpayment) of each expiration, any intended cancellation and any intended
reduction of the coverage provided thereby. The Landlord and the Agent shall not
be responsible for the sufficiency of any insurance herein required and shall be
fully protected in accepting payment on account of such insurance or any
adjustment, compromise or settlement of any loss agreed to by the Landlord and
the Agent; provided, however that, so long as no Event of Default is in
existence hereunder, neither the Landlord nor the Agent shall adjust, compromise
or settle any loss without the prior consent of the Tenant. The Tenant shall
cause to be delivered to the Agent and the Landlord on each anniversary of the
Commencement Date until the Expiration Date a certificate of an Authorized
Representative of the Tenant in form reasonably satisfactory to the Agent and
the Landlord that the insurance policies required by this Lease are in full
force and effect. The Agent and the Landlord may rely on said certificate in
making a determination that the insurance policies required by this Lease are in
full force and effect unless they have actual notice to the contrary.
ARTICLE 23. NO WAIVER
Section 23.1. Written Waiver. No waiver by either Party of any breach
by the other Party of any of the terms, covenants, agreements or conditions of
this Lease shall be effective unless such waiver is contained in a writing
subscribed by such Party and the Agent and no such waiver shall be deemed to
constitute a waiver of any succeeding breach thereof, or a waiver of any breach
of any of the other terms, covenants, agreements and conditions herein
contained.
Section 23.2. No Acceptance of Surrender. No act or thing done by the
Landlord or the Landlord's agents during the Term shall be deemed an acceptance
of surrender of the Leased Property or any part thereof, and no agreement to
accept such surrender shall be valid unless in writing and signed by the
Landlord.
Section 23.3. No Accord and Satisfaction. The receipt by the Landlord
of the Basic Rent and Supplemental Rent with knowledge of the breach of any
covenant of this Lease on the part of the Tenant shall not be deemed a waiver of
such breach. No payment by the Tenant or receipt by the Landlord of a lesser
amount than the Basic Rent or a lesser amount of the Supplemental Rent then due
shall be deemed to be other than a payment on account of the earliest stipulated
amount then due, nor shall any endorsement or statement on any check or payment
as Basic Rent or Supplemental Rent be deemed an accord and satisfaction and the
Landlord may accept such check or payment without prejudice to the Landlord's
right to recover the balance of such Basic Rent or Supplemental Rent or pursuant
to any other remedy provided in this Lease.
Section 23.4. Payment of Rent Not Waiver. The payment by the Tenant of
any Basic Rent or Supplemental Rent with knowledge of the breach of any covenant
of this Lease on the part of the Landlord or the Agent shall not be deemed a
waiver of such breach.
ARTICLE 24. NON-LIABILITY OF LANDLORD
Section 24.1. Non-Liability of Landlord. Neither the Landlord nor its
agents, employees, officers, directors and representatives shall be liable to
the Tenant or the Tenant's Visitors for any damage, injury, loss, compensation
or claim based on, arising out of, or resulting from any causes (other than a
breach of the covenant of quiet enjoyment pursuant to Section 16.1) including,
but not limited to, the following: repairs to any portion of the Leased
Property; interruption in the use of the Leased Property; any accident or damage
resulting from the use or operation (by the Tenant or any other person or
persons) of heating, cooling, electrical or plumbing equipment or apparatus; any
fire, robbery, theft, mysterious disappearance and/or any other casualty; the
actions of any other Person or Persons; any leakage in any part or portion of
the Leased Property, or from water, rain or snow that may leak into, or flow
from, any part of the Leased Property, or from drains, pipes or plumbing
fixtures in any part of the Leased Property; or any act, omission, or any
neglect of the Tenant or Tenant's Visitors in the use of any part of the Leased
Property by the Tenant or Tenant's Visitors; provided, however, that the
Landlord shall remain liable to the Tenant for the Landlord's gross negligence
or willful misconduct.
Section 24.2. Landlord Not Responsible for Tenant's Property. As an
express inducement to the Landlord to enter into this Lease, and notwithstanding
any provisions of this Lease to the contrary, the Tenant agrees that any goods,
personal property or personal effects, including removable trade fixtures used
or placed by the Tenant or its employees in or about the Leased Property shall
be at the sole risk of the Tenant, and the Landlord shall not in any manner be
held responsible or liable therefor; nor shall the Landlord or its agents,
employees, officers, directors and representatives have any liability to the
Tenant for any claims based on the interruption of, or loss to, the Tenant's
business.
ARTICLE 25. INDEMNIFICATION
Section 25.1. Indemnification. Subject to the provisions of Section
25.2 below, the Tenant shall indemnify, defend, protect and save harmless the
Landlord, the Agent, the Lenders, the Trustee and their respective Affiliates,
agents, employees, officers, directors, members, principals and other
representatives (each, an "Indemnified Party" and collectively, the "Indemnified
Parties") from and against any and all liabilities, penalties, fines, damages,
claims, losses, costs, charges and expenses, including without limitation court
costs and reasonable attorneys' fees, which may be imposed upon, incurred by or
asserted against the Indemnified Parties, or any of them, in connection with,
arising out of or resulting from:
(a) any Indemnified Party's interest in the Leased Property or
any part thereof;
(b) any Applicable Project, including without limitation (i)
the construction of the Improvements or Off-Site Improvements at or with respect
to any Individual Property; (ii) any matter arising out of or relating to the
Applicable Construction Agreement and (iii) the failure to construct the
Applicable Project in accordance with the Applicable Construction Agreement, the
Applicable Approvals and the Applicable Plans and Specifications;
(c) the possession and occupancy of the Leased Property or any
part thereof, or the uses, operations or businesses conducted on the Leased
Property or any part thereof, including without limitation any failure to use or
operate any Individual Property in accordance with applicable Legal Requirements
and Environmental Requirements;
(d) any matter relating to title to any Individual Property,
including without limitation any matter arising out of or relating to the
Applicable Acquisition Agreement;
(e) any Default or Event of Default hereunder;
(f) any matter relating to the physical condition of any
Individual Property;
(g) any matter relating to the environmental condition of any
Individual Property, including without limitation (i) the failure of such
Individual Property to comply with all applicable Environmental Requirements,
(ii) any violation or notice of violation of or with respect to any
Environmental Requirement applicable to such Individual Property, (iii) any
action, suit, proceeding, hearing, investigation or inquiry before or by any
Governmental Authority and (iv) the existence or discharge of any Hazardous
Substances at or on such Individual Property;
(h) the failure of any Individual Property to comply with all
applicable Legal Requirements, including without limitation Legal Requirements
relating to zoning and building code enforcement;
(i) any tax on gross rental payments, including, without
limitation, any sales or use tax, gross receipts tax, rental or occupancy tax,
transfer tax, license or permit fee, franchise fee or tax, documentary or stamp
tax, intangible tax or other tax resulting from or relating to the ownership,
use, occupancy, or rental of the Leased Property, or any part thereof, or this
Lease (other than federal income taxes and state and local taxes imposed upon or
measured by net income);
(j) the failure of Tenant to make timely payment of any
Impositions payable on account of or with respect to the Leased Property or any
part thereof; and
(k) with respect to the Offering Statement, any amendment or
supplement thereto, any actual or alleged misstatement or omission of material
fact, including any omission to state a material fact necessary to make any
statements contained therein, in light of the circumstances under which they
were made, not misleading, relating to the Tenant, any Applicable Project or
Individual Property excluding, however, material appearing under the headings,
"THE ISSUER", "THE LC ISSUERS", "THE LETTERS OF CREDIT" and "THE BONDS", but
including, without limitation "THE COMPANY", "PURPOSE OF THE BOND ISSUE" and
"APPLICATION OF BOND PROCEEDS".
Section 25.2. Exceptions to Indemnification.
(a) Notwithstanding any provision herein to the contrary, the
Tenant shall not be liable for indemnification or reimbursement to, any
Indemnified Party to the extent that such Indemnified Party has acted in a
manner constituting gross negligence or willful misconduct in connection with
the matter for which such Indemnified Party is seeking indemnification or
reimbursement.
(b) All amounts which may become due from the Tenant to any
Indemnified Party under this Article 25 shall be reduced by any amounts actually
received by such Indemnified Party from the proceeds of insurance provided by
the Tenant and by tax benefits, refunds, savings or credits resulting from
indemnification.
(c) Notwithstanding any provision herein to the contrary, the
Tenant's indemnification responsibilities hereunder shall not include liability
for amounts due, or expenses incurred by or on behalf of the Landlord, solely by
reason of its status as landlord of the Individual Properties under applicable
laws and regulations relating to federal income taxes and state and local taxes
imposed upon or measured by net income.
(d) All amounts described in Section 3.8(b) hereof.
Section 25.3. Right of Set-Off. In addition to any rights now or
hereafter granted under applicable law, upon the occurrence and during the
continuance of any Event of Default, each Indemnified Party is hereby authorized
by the Tenant at any time or from time to time, without notice to any Person
(any such notice being hereby expressly waived) to set off, to appropriate and
to apply any and all deposits (general or special, including, but not limited
to, indebtedness evidenced by certificates of deposit, whether matured or
unmatured (but not including trust accounts)) and any other Debt at any time
held or owing by such Indemnified Party to or for the credit or the account of
the Tenant against and on account of the obligations of the Tenant owing to such
Indemnified Party under this Article 25, irrespective of whether or not (i) such
Indemnified Party shall have made any demand therefor hereunder, (ii) the Rent
shall have been accelerated and be due and payable or (iii) such obligations are
contingent or unmatured.
Section 25.4. Miscellaneous; Survival.
(a) All amounts which may become due from the Tenant to any
Indemnified Party under this Article 25 shall be payable by the Tenant within 5
Business Days after demand therefor by the Indemnified Party. All such amounts
shall be included as part of, and shall be deemed to be, Supplemental Rent under
this Lease.
(b) Nothing contained in this Article 25 shall impair or
otherwise derogate the Tenant's rights with respect to any Person not expressly
entitled to the benefits of the provisions of this Article 25.
(c) The provisions of this Article 25 and of any other
indemnification provisions elsewhere contained in this Lease shall survive the
expiration or earlier termination of the Term of this Lease with respect to
acts, occurrences or omissions occurring prior to the expiration or earlier
termination of the Term of this Lease.
ARTICLE 26. NOTICES
Section 26.1. Notices. All notices, offers, approvals, elections,
consents, acceptances, waivers, reports, requests and other communications
required or permitted to be given hereunder (all of the foregoing hereinafter
collectively referred to as "Communications") shall be in writing and shall be
deemed to have been duly given if delivered personally with receipt acknowledged
or sent by facsimile (which shall be confirmed by a writing sent by registered
or certified mail or equivalent on the same date that such facsimile is sent),
or by recognized overnight courier for next Business Day delivery, addressed or
sent to the parties at the following addresses and facsimile numbers or to such
other additional address or facsimile number as any party shall hereafter
specify by Communication to the other parties:
If to the Landlord: Movieplex Realty Leasing, L.L.C.
0 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xx. Xxxxx X. Xxxxx, Vice President
Facsimile: (000) 000-0000
with a copy to: Xxxxx & Samson
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
ATTN: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Tenant: Carmike Cinemas, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
ATTN: Xx. Xxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: Carmike Cinemas, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
ATTN: Xx. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
ATTN: Xxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Agent: Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
ATTN: Syndications Group
Facsimile: (000) 000-0000
with a copy to: Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
ATTN: Xx. Xxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxx, Day, Xxxxxx & Xxxxx
3500 One Peachtree Center
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
ATTN: Xxxxxxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
ARTICLE 27. MECHANICS' LIENS
Section 27.1. Mechanics' Liens. If any mechanics' or other lien, charge
or order for the payment of money or otherwise shall be filed against the Leased
Property or any part thereof (whether or not such lien, charge or order is valid
or enforceable as such), arising out of any act or omission by the Tenant, the
Tenant shall promptly notify the Landlord and the Agent thereof and, at the
Tenant's expense, shall cause it to be canceled or discharged of record by
bonding or otherwise within ten (10) days after notice of such filing, and the
Tenant shall, in any event indemnify and save the Landlord, the Agent and the
Trustee harmless against and shall pay all costs, expenses, losses, fines and
penalties, including, without limitation, attorneys' fees and disbursements,
related thereto or resulting therefrom.
ARTICLE 28. DEFINITION OF LANDLORD
Section 28.1. Definition of Landlord. The term "Landlord" as used in
this Lease shall mean only (i) the owner of the Leased Property, which is
currently Movieplex Realty Leasing, L.L.C and (ii) the Agent, as assignee for
the benefit of the Lenders pursuant to the Security Documents. Upon the transfer
of title to the Leased Property or any part thereof, Movieplex Realty Leasing,
L.L.C. shall be and hereby is entirely freed and relieved of all covenants and
obligations of the Landlord hereunder except for liabilities which arose prior
to such transfer and this Lease shall be deemed and construed as a covenant
running with the land without further agreement between the parties or their
successors in interest. Notwithstanding anything to the contrary herein
contained, for so long as any amounts shall be due and owing the Agent under the
Reimbursement Agreement or the Reimbursement Notes, the Landlord and Tenant
agree that the exercise by the Landlord of remedies to enforce its Reserved
Rights may be pursued whether or not an Event of Default shall have occurred and
be continuing hereunder or under any other Transaction Document. Further, the
Landlord agrees that the Landlord, without the prior written consent of the
Agent, shall not take any action to accelerate the payment of Rent or seek to
terminate this Lease, it being expressly acknowledged by the Landlord that any
injunctive or other equitable relief shall not seek to dispossess the Tenant
from the Leased Property. Any exercise by the Landlord shall be upon notice to
the Tenant. The Landlord's rights with respect to its exercise of remedies
concerning the Reserved Rights shall not be limited to equitable relief provided
that the Landlord shall give the Tenant and the Agent five days' prior notice of
the institution of any action with respect to such Reserved Rights.
ARTICLE 29. DEFINITION OF TENANT
Section 29.1. Definition of Tenant. The term "Tenant" as used in this
Lease includes the Tenant, its successors and permitted assigns and any person
or entity claiming by, through or under the Tenant. The Tenant shall be as fully
responsible to the Landlord for all acts and omissions of its subtenants and
occupants as it is for its own acts and omissions.
ARTICLE 30. PERSONAL LIABILITY
Section 30.1. No Personal Liability or Accountability. Anything in this
Lease to the contrary notwithstanding, the liability, if any, of the Landlord to
the Tenant in the performance by the Landlord of its obligations under this
Lease or any Transaction Document to which it is a party, any default by the
Landlord hereunder or thereunder or the Landlord's gross negligence or willful
misconduct in connection herewith or therewith, shall be limited to the interest
of the Landlord in the Leased Property and the Tenant agrees to look solely to
the Landlord's interest in the Leased Property for the recovery of any judgment
from the Landlord or its agents, employees, officers, directors and
representatives. No covenant or agreement contained in this Lease shall be
deemed to be the covenant or agreement of any present, past or future officer,
director, or agent or employee of the Tenant or the Landlord, in his or her
individual capacity, and neither the officers, directors, agents or employees of
the Tenant or the Landlord nor any official executing this Lease shall be liable
personally on this Lease or be subject to any personal liability or
accountability by reason of any transaction or activity relating to this Lease.
ARTICLE 31. ENVIRONMENTAL COMPLIANCE
Section 31.1. Environmental Compliance. The Tenant agrees to comply in
all material respects at its sole cost and expense with all Environmental
Requirements. To the extent any Environmental Requirements hold Landlord and
Tenant jointly and severally liable for compliance, Tenant shall be solely
responsible for compliance with such Environmental Requirements. If on the
Expiration Date or sooner termination of this Lease, any Individual Property is
not in compliance with all Environmental Requirements, the provisions of Section
14.1 shall apply to such Individual Property until compliance with all
Environmental Requirements is completed.
Section 31.2. Existence of Hazardous Substances. The Tenant shall:
(a) not cause, suffer or permit any Hazardous Substance to
exist on, about or beneath any Individual Property or discharge from any
Individual Property (whether originating thereon or migrating to such Individual
Property from other property), and shall promptly: (i) pay any claim against the
Tenant, the Landlord, the Trustee or any Individual Property, (ii) remove any
Lien upon any Individual Property and (iii) defend, indemnify and hold the
Landlord and its agents, employees, officers and representatives and the Trustee
harmless from any and all claims, expenses, liability, loss or damage, in each
case resulting from any Hazardous Substance that exists on, about or beneath any
Individual Property or is discharged from any Individual Property;
(b) not cause, suffer or permit any Hazardous Substance to
exist on or discharge from any property owned or used by the Tenant which would
result in any Lien upon any Individual Property and shall promptly: (i) pay any
claim against the Tenant, the Landlord, the Trustee or any Individual Property;
(ii) remove any charge or lien upon any Individual Property and (iii) defend,
indemnify and hold the Landlord and the Trustee harmless from any and all
claims, expenses, liability, loss or damage, resulting from the existence of any
such Hazardous Substance; or
(c) notify the Landlord and the Trustee in writing of any
Hazardous Substance that exists on, about or beneath any Individual Property or
is discharged from or onto any Individual Property (whether originating thereon
or migrating to such Individual Property from other property) within ten (10)
days after the Tenant first has knowledge of such existence or discharge.
Section 31.3. Environmental Inspection. If during the Term the Landlord
has reason to believe that any Individual Property fails to comply with
Environmental Requirements, the Landlord shall have the right to require the
Tenant, at the Tenant's sole cost and expense, to retain an environmental
consultant, reasonably acceptable to the Landlord, to conduct a complete and
thorough on-site inspection of such Individual Property, including but not
limited to a geohydrological survey of soil and subsurface conditions as well as
other tests, to determine whether such Individual Property and the Tenant and
any subtenants's use and occupancy thereof is in full compliance with all
Environmental Requirements. The consultant shall certify to the Landlord
whether, in the consultant's professional judgment, such Individual Property and
such use and occupancy are in full compliance with all Environmental
Requirements and, if such is not the case, the consultant shall recommend
appropriate cost-effective remedial actions with respect thereto, which actions
will be performed by the Tenant at its sole cost and expense, as well as the
costs of all investigations, tests and consulting fees.
Section 31.4. De Minimis Quantities. Notwithstanding the foregoing, the
Tenant shall be permitted to bring upon any Individual Property and use such
quantities of certain Hazardous Substances which are necessary to the proper
operation of the Tenant's business provided that such activities shall be done
in compliance with all Legal Requirements. The Tenant shall comply with all
Environmental Requirements in connection with transportation, storage, use and
disposition of said permitted Hazardous Substances. This provision shall not
include any Hazardous Substance either currently or in the future classified as
an "Extremely Hazardous Substance" under the Federal Emergency Planning and
Community Right to Know Act (42 U.S.C. 11001 et seq.).
ARTICLE 32. MISCELLANEOUS
Section 32.1. Entireties; Exhibits; Conflicts; Modifications.
(a) Except for the Transaction Documents, this Lease
constitutes the entire agreement of the Parties hereto with respect to its
subject matter, and all prior agreements with respect thereto are merged herein.
(b) All Exhibits attached to this Lease are incorporated into
this Lease and shall be deemed to be made a part of this Lease for all purposes.
(c) If any conflict or inconsistency exists between any term
or provision contained in the body of the Lease and any term or provision
contained in any Lease Supplement, then the term or provision contained in the
Lease Supplement shall control and prevail in all respects.
(d) Any attempt hereafter made to change, modify, waive,
discharge or effect an abandonment of this Lease in whole or in part shall be
void and ineffective unless in writing and signed by the Party against whom
enforcement of the change, modification, waiver, discharge or abandonment is
sought.
Section 32.2. Further Assurances and Corrective Instruments. The
Landlord and the Tenant agree that they will, if necessary, execute, acknowledge
and deliver, such supplements hereto and such further instruments as may
reasonably be required for correcting any inadequate or incorrect description of
the Leased Property or any part thereof hereby leased or intended so to be or
for carrying out the expressed intention of this Lease including, without
limitation the provisions of Sections 32.15(b) and (c).
Section 32.3. Jury Trial Waiver. To the extent permitted by law, the
Landlord and the Tenant do hereby waive trial by jury in any action, proceeding
or counterclaim brought by either of the Parties hereto against the other on any
matter whatsoever arising out of or in connection with this Lease, the
relationship of any of the Landlord, the Agent and the Tenant, the Tenant's use
or occupancy of the Leased Property and/or any claim, injury or damage, or any
emergency or statutory remedy.
Section 32.4. Severability. If any term or provision of this Lease or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby and all other
terms and provisions of this Lease shall be valid and enforced to the fullest
extent permitted by Legal Requirements.
Section 32.5. Interpretation.
(a) Whenever in this Lease any words of obligation or duty are
used, such words or expressions shall have the same force and effect as though
made in the form of covenants.
(b) Words of any gender used in this Lease shall be held to
include any other gender, and words in the singular number shall be held to
include the plural, when the sense requires.
(c) This Lease shall not be strictly construed either against
the Landlord or the Tenant, regardless of whether any provision thereof has been
drafted by the Landlord or the Tenant (or their respective attorneys).
(d) The headings and captions contained in this Lease are
inserted for convenience of reference only, and are not to be deemed part of or
to be used in construing this Lease.
(e) The covenants and agreements herein contained shall,
subject to the provisions of this Lease, bind and inure to the benefit of the
Landlord, its successors and assigns, and the Tenant, its successors and
permitted assigns except as otherwise provided herein.
(f) This Lease has been executed and delivered in the State of
New York and shall be governed by and construed in accordance with the internal
laws of the State of New York, except to the extent that the internal laws of
any Applicable State shall mandatorily govern matters relating to real property
located in such Applicable State.
(g) The Landlord has made no representations or promises with
respect to the Leased Property, except as expressly contained herein.
Section 32.6. No Offer; No Option, etc. The submission of this Lease to
the Tenant for examination does not constitute by the Landlord a reservation of,
or an option to the Tenant for, the Leased Property or any part thereof, or an
offer to lease on the terms set forth herein, and this Lease shall become
effective as a lease agreement only upon execution and delivery thereof by the
Landlord and the Tenant.
Section 32.7. Recording. This Lease or (if permitted by law in the
Applicable State) a short form memorandum of this Lease in recordable form,
provided that such memorandum shall not contain any of the specific rental terms
set forth herein, shall be recorded in the appropriate land records of any
Applicable State and the Tenant shall pay all recording fees. Upon the
expiration or earlier termination of this Lease, the Tenant shall execute and
deliver to the Landlord, in recordable form, an instrument which terminates of
record this Lease or any memorandum of Lease, as applicable. The Tenant hereby
appoints the Landlord its attorney-in-fact to execute such instrument on the
Tenant's behalf. The provisions of this Section 32.7 shall survive the
expiration or sooner termination of this Lease.
Section 32.8. Consent by Landlord. Wherever in this Lease the Landlord
agrees not to unreasonably withhold its consent or approval, or words of like
import, the Tenant agrees that it shall not be unreasonable for the Landlord to
withhold such consent or approval (i) if by granting such consent or approval
the Landlord shall be in violation of any Secured Interests or any Legal
Requirement, or (ii) the Trustee or the Agent shall not give its consent or
approval thereto where its consent or approval is required by the terms of its
Secured Interest. The foregoing are illustrative, and not the sole instances, in
which the Landlord's withholding of consent shall be deemed to be not
unreasonable. The Tenant agrees that if it is determined that the Landlord
unreasonably withheld its consent under any provisions of this Lease, the Tenant
shall have no action for damages against the Landlord but shall be limited to an
action for specific performance or the like.
Section 32.9. No Merger. There shall be no merger of this Lease, or the
leasehold estate created by this Lease, with any other estate or interest in the
Leased Property or any part thereof, by reason of the fact that the same person,
firm, corporation or other entity may acquire or own or hold, directly or
indirectly, (i) this Lease or the leasehold estate created by this Lease, or any
interest in this Lease or in any such leasehold estate, and (ii) any such other
estate or interest in the Leased Property or any part thereof; and no such
merger shall occur unless and until all persons, corporations, firms and other
entities having an interest (including a Security Interest) in (i) this Lease or
the leasehold estate created by this Lease; and (ii) any such other estate or
interest in the Leased Property or any part thereof shall join in a written
instrument effecting such merger and shall duly record same.
Section 32.10. Landlord, Agent and Tenant Representatives. Whenever
under the provisions of this Lease the approval of the Landlord, the Agent or
the Tenant is required or the Landlord, the Agent or the Tenant is required to
take some action at the request of the other, such approval of such request
shall be given for the Landlord, by an Authorized Representative of the
Landlord, for the Agent by an Authorized Representative of the Agent, and for
the Tenant, by an Authorized Representative of the Tenant. The Landlord, the
Agent and the Tenant, as the case may be, shall be authorized to rely upon any
such approval or request.
Section 32.11. Binding; Counterparts. This Lease shall be binding upon
the parties hereto only when duly executed on behalf of both the Tenant and the
Landlord together; provided, however, that each set of counterparts taken
together shall constitute an original.
Section 32.12. Time is of the Essence. Time is of the essence with
respect to this Lease and no covenant or obligation hereunder to be performed by
the Tenant may be waived except by the written consent of the Landlord and the
Agent and waiver of any such covenant or obligation or a forbearance to invoke
any remedy on any occasion shall not constitute or be treated as a waiver of
such covenant or obligation or any other covenant or obligation as to any other
occasion and shall not preclude the Landlord from invoking such remedy at any
later time prior to the Tenant's cure of the condition giving rise to such
remedy. Each of the Landlord's rights hereunder is cumulative to its other
rights hereunder and not alternative thereto.
Section 32.13. Receipt of Lease. The Parties hereto each acknowledge
receipt of a signed, true and exact copy of this Lease.
Section 32.14. Unavoidable Delay. If either Party shall be delayed or
prevented from the performance of any act required by this Lease by reason of
acts of God, strikes, lockouts, labor troubles, inability to procure materials,
or where the Tenant is barred or prevented, directly or indirectly, from
proceeding with the development otherwise permitted by a legal action instituted
by any Applicable State agency, political subdivision or other party to protect
the public health and welfare or by a directive or Order issued by any
Applicable State agency, political subdivision or Court of competent
jurisdiction to protect the public health or welfare, acts of war or other cause
without fault and beyond the reasonable control of the Party obligated,
performance of such act shall be excused for the period of the delay, and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay; provided, however, nothing in this
Section 32.14 shall excuse the Tenant from the prompt payment of any Rent or
Impositions payable pursuant to the provisions of this Lease.
Section 32.15. Relation of Parties.
(a) Nothing in this Lease shall be construed to make the
Parties hereto partner or joint venturers or to render either party hereto
liable for any obligation of the other.
(b) The Landlord and the Tenant acknowledge and agree that
solely for purposes of property law and the Bankruptcy Code (i) this Lease shall
not constitute a "true lease" but shall instead constitute a financing and shall
not be deemed an "executory contract" or "unexpired lease" under Section 365 of
the Bankruptcy Code or any similar provisions of the Bankruptcy Code, (ii) in
the event that the Tenant shall seek relief under the Bankruptcy Code, neither
it nor the Landlord shall seek to have the Lease classified as a "true lease"
nor shall either raise an objection to or seek to limit the claim of Landlord
and the Agent and Lenders under Section 502(b)(6) of the Bankruptcy Code or any
similar provision of the Bankruptcy Code, (iii) the obligations of the Tenant to
the Landlord and the Agent and Lenders under this Lease are obligations of the
Tenant ranking pari passu as to debt priority with the Tenant's obligations to
its other senior lenders, (iv) this Lease be treated as a mortgage or deed of
trust (whichever is applicable in the Applicable State in which the Individual
Properties are located) and security agreement, encumbering each Individual
Property, and that Tenant, as grantor, hereby grants to Landlord, as mortgagee
or beneficiary and secured party, or any successor thereto, a first and
paramount Lien on each Individual Property, (v) that Landlord shall have, as a
result of such determination, all of the rights, powers and remedies of a
mortgagee or deed of trust beneficiary available under the law of the Applicable
State to take possession of and sell (whether by foreclosure or otherwise) any
Individual Property, (vi) that the effective date of such mortgage or deed of
trust shall be the effective date of this Lease, (vii) that the recording of
this Lease or a memorandum of Lease shall be deemed to be the recording of such
mortgage or deed of trust, and (viii) that the obligations secured by such
mortgage or deed of trust shall include the Obligations and all other
obligations of and amounts due from Tenant hereunder and under the Transaction
Documents. The Tenant shall not enter into any other financings, leases, or
other similar arrangements pursuant to which the Tenant's obligations thereunder
shall be senior as to debt priority to its obligations to the Landlord and the
Agent and Lenders under this Lease.
(c) The Landlord and Tenant acknowledge and agree that for all
purposes other than property and bankruptcy law purposes (including, but not
limited to, for purposes of applicable federal, state and local tax laws), this
Lease shall be deemed to be a "true lease" with Tenant as the lessee of the
Leased Property and the Landlord and the Tenant agree not to take any action or
position, or make any filing, inconsistent with such treatment, including, but
not limited to, on or with respect to their federal, state and local tax returns
or any other filing.
(d) The Tenant acknowledges that the Landlord, the Agent and
the Lenders are relying on the provisions of Section 32.15(b) and that if the
Tenant violates any provision of or threatens to violate any provision of this
Section it will cause the Agent irreparable harm and agrees that the Agent may
pursue both injunctive relief and any and all other remedies available at law or
in equity for such violation or threatened violation, including the recovery of
damages and reasonable attorneys' fees and costs.
(e) Landlord acknowledges that the Tenant is relying on the
provisions of Section 32.15(c) and that if the Landlord violates any provision
of or threatens to violate any provision of such Section it will cause the
Tenant irreparable harm and agrees that the Tenant may pursue both injunctive
relief and any and all other remedies available at law or in equity for such
violation or threatened violation, including the recovery of damages and
reasonably attorneys' fees and costs.
Section 32.16. Survival of Indemnification and Other Obligations.
Regardless of whether explicitly stated in any other provision of this Lease,
any obligation of the Tenant to indemnify the Landlord, the Trustee, the Agent
or any other Person shall constitute Supplemental Rent, the payment of which
shall survive the expiration or earlier termination of this Lease. Further, the
Tenant hereby expressly acknowledges that the Agent is a third party beneficiary
of all obligations to make payments of Supplemental Rent in amounts provided
herein in respect of indemnification obligations hereunder of the Tenant to or
for the benefit of the Agent.
Section 32.17. Brokerage Indemnity. Each Party represents to the other
that neither has utilized the services of a broker or other person and is not
obligated with respect to any claims for brokerage, commission, finder's or
other fees relative to this Lease and the transaction set forth herein based in
any way on agreement, arrangements or understandings made by such party with any
other party or parties.
Section 32.18. Reference to Trustee and Agent. This Lease shall be
deemed to be amended (a) to delete all references to the Trustee from and after
the time all Bonds are redeemed pursuant to the provisions of the Indenture and
(b) to delete all references to the Agent from and after the time all
Obligations and other amounts due and owing to the Agent and the Lenders under
the Reimbursement Agreement shall have been paid in full and all Letters of
Credit and commitments thereunder have been terminated; provided, however, that
nothing contained in this Section 32.18 shall in any manner limit the
indemnification obligations of the Tenant to the Trustee or the Agent which
survive the expiration or sooner termination of this Lease.
Section 32.19. Date for Identification Purposes. This Lease has been
dated as of September 1, 1997 as a matter of convenience of reference only. This
Lease shall not be effective and binding upon the Parties until the actual
execution and delivery hereof by the Landlord and the Tenant, which shall occur
on the Commencement Date. Each Lease Supplement shall not be effective and
binding upon the Parties until the actual execution and delivery thereof by the
Landlord and the Tenant.
Section 32.20. Negotiation of this Lease. This Lease has been willingly
entered into by sophisticated commercial parties, each represented by
independent legal counsel.
IN WITNESS WHEREOF, the Parties have executed this Lease on the date
first above written.
WITNESS: LANDLORD:
MOVIEPLEX REALTY LEASING,
L.L.C.
By: XXXXXXXX, XXXXXX & CO.,
INC., Manager
/s/Xxxxx Xxxxxxx By: Xxxxx X. Xxxxx
---------------- --------------
Xxxxx Xxxxxxx Name: Xxxxx X. Xxxxx
Assistant Secretary Title: Vice President
TENANT:
ATTEST: CARMIKE CINEMAS, INC.
/s/Xxxxx X. Xxxxx By: /s/Xxxx X. Xxxxxxx III
----------------- ----------------------
Xxxxx X. Xxxxx Name: Xxxx X. Xxxxxxx III
Secretary Title: Vice President
[Signature Page to Master Lease]
