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Exhibit 10.7
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MASTER LEASE
dated as of April 30, 1997
between
CREDIT SUISSE LEASING 92A, L.P.,
as Lessor
and
APPLIED MATERIALS, INC.,
as Lessee
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Real Estate and Equipment Facility
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This Lease is subject to a lien in favor of Credit Suisse First Boston, acting
through its New York Branch, as Agent (the "Agent") under a Loan Agreement dated
as of April 30, 1997 among Credit Suisse Leasing 92A, L.P., the Lenders, and
Agent, as amended or supplemented from time to time. This Lease has been
executed in several counterparts. 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 jurisdiction), no lien on this Lease may be
created through the transfer or possession of any counterpart other than the
original counterpart containing the receipt therefor executed by Agent on the
signature page hereof.
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I
DEFINITIONS; INTERPRETATION
1.1 Definitions; Interpretation.............................................................1
ARTICLE II
LEASE OF PROPERTIES; TERM
2.1 Acceptance and Lease of Site............................................................2
2.2 Acceptance Procedure for Site...........................................................2
2.3 Acceptance and Lease of Equipment.......................................................2
2.4 Acceptance Procedure for Equipment......................................................3
2.5 Term....................................................................................3
2.6 Title...................................................................................4
2.7 Other Property..........................................................................4
ARTICLE III
RENT
3.1 Rent....................................................................................4
3.2 Payment of Basic Rent...................................................................5
3.3 Payment of Supplemental Rent............................................................5
3.4 Method and Amount of Payment............................................................6
3.5 Late Payments...........................................................................6
ARTICLE IV
UTILITY CHARGES
4.1 Utility Charges for Site................................................................7
ARTICLE V
QUIET ENJOYMENT
5.1 Quiet Enjoyment of Leased Property......................................................7
ARTICLE VI
NET LEASE
6.1 Net Lease...............................................................................7
6.2 No Termination or Abatement.............................................................9
ARTICLE VII
SUBLETTING; ASSIGNMENT
7.1 Subletting and Assignment...............................................................9
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
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ARTICLE VIII
CONDITION OF LEASED PROPERTY
8.1 Condition of the Sites and the Units of Equipment......................................10
8.2 Possession and Use of the Leased Property..............................................11
ARTICLE IX
COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS
9.1 Compliance with Applicable Laws and Regulations and
Insurance Requirements.................................................................12
ARTICLE X
MAINTENANCE
10.1 Maintenance and Repair; Return........................................................12
ARTICLE XI
MODIFICATIONS AND ALTERATIONS
11.1 Modifications of Sites................................................................13
11.2 Modifications and Alterations of Equipment............................................14
ARTICLE XII
TITLE
12.1 Warrant of Title......................................................................15
12.2 Grants and Releases of Easements on Sites.............................................16
ARTICLE XIII
PERMITTED CONTESTS
13.1 Permitted Contests in Respect of Applicable Laws
and Regulations.......................................................................17
ARTICLE XIV
INSURANCE
14.1 Public Liability and Workers' Compensation Insurance..................................18
14.2 Hazard and Other Insurance............................................................18
14.3 Coverage..............................................................................19
ARTICLE XV
CASUALTY; CONDEMNATION; ENVIRONMENTAL MATTERS
15.1 Casualty and Condemnation.............................................................20
15.2 Environmental Matters.................................................................25
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
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15.3 Notice of Environmental Matters.......................................................26
ARTICLE XVI
NOTIFICATION UPON CASUALTY, CONDEMNATION
OR ENVIRONMENTAL EVENT WITH RESPECT TO A SITE
16.1 Notification upon Certain Events......................................................26
16.2 Procedures............................................................................26
ARTICLE XVII
LEASE EVENTS OF DEFAULT
17.1 Lease Events of Default...............................................................27
17.2 Remedies..............................................................................30
17.3 Waiver of Certain Rights..............................................................33
17.4 Power of Sale and Foreclosure.........................................................33
17.5 Remedies Cumulative...................................................................34
ARTICLE XVIII
RIGHT TO PERFORM FOR LESSEE
18.1 Lessor's Right to Cure Lessee's Lease Defaults........................................34
ARTICLE XIX
PROCEDURES FOR TRANSFER OF PROPERTIES
19.1 Conveyance of Leased Property; Exercise of Purchase
Option or Obligation..................................................................34
ARTICLE XX
PURCHASE OPTION
20.1 Purchase Option.......................................................................36
20.2 Expiration Date Purchase Obligation...................................................38
20.3 Acceleration of Purchase Obligation...................................................39
ARTICLE XXI
RIGHT TO RENEW
21.1 Site Renewal..........................................................................39
21.2 Equipment Renewal.....................................................................40
ARTICLE XXII
REMARKETING
22.1 Option to Remarket Sites..............................................................41
22.2 Option to Remarket the Equipment......................................................43
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TABLE OF CONTENTS
(CONTINUED)
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22.3 Conditions to and Requirements of Remarketing Options.................................44
22.4 Certain Obligations Continue..........................................................48
22.5 Appraisal.............................................................................48
ARTICLE XXIII
[RESERVED]
ARTICLE XXIV
HOLDING OVER
24.1 Holding Over..........................................................................50
ARTICLE XXV
RISK OF LOSS
25.1 Risk of Loss..........................................................................50
ARTICLE XXVI
OWNERSHIP OF THE LEASED PROPERTY
26.1 Nature of Transaction.................................................................51
ARTICLE XXVII
ESTOPPEL CERTIFICATES
27.1 Estoppel Certificates.................................................................53
ARTICLE XXVIII
INSPECTIONS; NO WAIVER
28.1 Right to Inspect......................................................................53
28.2 No Waiver.............................................................................54
ARTICLE XXIX
ACCEPTANCE OF SURRENDER
29.1 Acceptance of Surrender...............................................................54
ARTICLE XXX
NO MERGER OF TITLE
30.1 No Merger of Title....................................................................54
ARTICLE XXXI
NOTICES
31.1 Notices...............................................................................55
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
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ARTICLE XXXII
MISCELLANEOUS
32.1 Miscellaneous.........................................................................55
32.2 Amendment; Complete Agreements........................................................55
32.3 Successors and Assigns................................................................56
32.4 Headings and Table of Contents........................................................56
32.5 Counterparts..........................................................................56
32.6 GOVERNING LAW.........................................................................56
32.7 Liability of Lessor Limited...........................................................56
32.8 Original Lease........................................................................57
APPENDIX 1 Definitions and Interpretation
EXHIBIT A-1 Form of Site Lease Supplement (California)
EXHIBIT A-2 Form of Site Lease Supplement (Other States)
EXHIBIT B Form of Equipment Lease Supplement
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MASTER LEASE
MASTER LEASE (including all Lease Supplements from time to time executed
and delivered, this "Lease"), dated as of April 30, 1997, between CREDIT SUISSE
LEASING, 92A, L.P., a Delaware limited partnership, having its principal office
at 11 Madison Avenue, 19th Floor, New York, New York, as Lessor and APPLIED
MATERIALS, INC., a Delaware corporation, having its principal office at 3050
Bowers Avenue, Santa Clara, California, as Lessee.
W I T N E S S E T H:
A. Lessor will, subject to the terms and conditions of the
Participation Agreement, (i) purchase the Existing Sites on the Document Closing
Date, (ii) purchase from one or more third parties designated by Lessee on each
Site Acquisition Date either (A) one or more Developed Sites and/or (B) one or
more Construction Sites (provided, however, if the Land with respect to a
Construction Site is owned by Lessee on the Site Acquisition Date, Lessee will
lease such Land to Lessor pursuant to a Ground Lease), and (iii) purchase from
one or more third parties designated by Lessee on each Equipment Acquisition
Date certain Units of Equipment.
B. Lessor desires to lease (or sublease) to Lessee, and Lessee desires
to lease (or sublease) from Lessor, each Site and each Unit of Equipment.
C. With respect to each Construction Site, Lessee, as Construction
Agent, will construct the Facility which will, as constructed, be the property
of Lessor and will become part of such Site subject to the terms of this Lease.
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
1.1 Definitions; Interpretation. Capitalized terms used but not
otherwise defined in this Lease have the respective meanings specified in
Appendix 1 to this Lease; and the rules ofinterpretation set forth in Appendix 1
to this Lease shall apply to this Lease.
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ARTICLE II
LEASE OF PROPERTIES; TERM
2.1 Acceptance and Lease of Site. On each Site Acquisition Date,
Lessor, subject to the satisfaction or waiver of the conditions set forth in
Article 6 of the Participation Agreement, hereby agrees to accept delivery on
such Site Acquisition Date of the Land (fee title or, in the case of a
Construction Site where the Land is owned by Lessee, a leasehold interest) to be
delivered on such Site Acquisition Date together with any existing Facility
thereon pursuant to the terms of the Participation Agreement and the applicable
Site Lease Supplement and simultaneously to lease (or sublease) to Lessee for
the Site Term (as defined in Section 2.5(a)), Lessor's interest in such Land and
in such Facility together with any Facility or Modifications to an existing
Facility which thereafter may be constructed thereon pursuant to the
Construction Agency Agreement (in the case of any Construction Site) or this
Lease, and Lessee hereby agrees, expressly for the direct benefit of Lessor, to
lease commencing on such Site Acquisition Date from Lessor for the Site Term,
Lessor's interest in such Land to be delivered on such Site Acquisition Date
together with Lessor's interest in any existing Facility thereon or any Facility
or Modification to an existing Facility which thereafter may be constructed
thereon pursuant to the Construction Agency Agreement (in the case of any
Construction Site) and this Lease.
2.2 Acceptance Procedure for Site. Lessor hereby authorizes one or more
employees of Lessee, to be designated by Lessee, as the authorized
representative or representatives of Lessor to accept delivery on behalf of
Lessor of the Site identified on the applicable Advance Request. Lessee hereby
agrees that such acceptance of delivery by such authorized representative or
representatives and the execution and delivery by Lessee on each Site
Acquisition Date of a Site Lease Supplement (appropriately completed) shall,
without further act, constitute the irrevocable acceptance by Lessee of such
Site which is the subject thereof for all purposes of this Lease and the other
Operative Documents on the terms set forth therein and herein, and that such
Site, together with any Facility or Modifications to a Facility constructed
thereon pursuant to the Construction Agency Agreement and this Lease, shall be
deemed to be included in the Leased Property and shall be subject to the terms
and conditions of this Lease on such Site Acquisition Date.
2.3 Acceptance and Lease of Equipment. On each Equipment Acquisition
Date, Lessor, subject to the satisfaction or waiver of the conditions set forth
in Article 6 of the Participation Agreement, hereby agrees to accept delivery on
such Equipment Acquisition Date of the interest in the Units of Equipment of an
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Equipment Group to be delivered on such Equipment Acquisition Date pursuant to
the terms of the Participation Agreement and the applicable Equipment Lease
Supplement and simultaneously to lease to Lessee for the applicable Equipment
Term (as defined in Section 2.5(b)) Lessor's interest in such Units of Equipment
of an Equipment Group, and Lessee hereby agrees, expressly for the direct
benefit of Lessor, to lease commencing on such Equipment Acquisition Date from
Lessor for the applicable Equipment Term, Lessor's interest in such Units of
Equipment to be delivered on such Equipment Acquisition Date.
2.4 Acceptance Procedure for Equipment. Lessor hereby authorizes one or
more employees of Lessee, to be designated by Lessee, as the authorized
representative or representatives of Lessor to accept delivery on behalf of
Lessor of the Units of Equipment identified on Schedule I to each Equipment
Lease Supplement executed by Lessee on the related Equipment Acquisition Date.
Lessee hereby agrees that such acceptance of delivery by such authorized
representative or representatives and the execution and delivery by Lessee on
each Equipment Acquisition Date of an Equipment Lease Supplement (appropriately
completed) shall, without further act, constitute the irrevocable acceptance by
Lessee of such Units of Equipment which are the subject thereof for all purposes
of this Lease and the other Operative Documents on the terms set forth therein
and herein and that such Units of Equipment shall be deemed to be included in
the leasehold estate of this Lease and shall be subject to the terms and
conditions of this Lease on such Equipment Acquisition Date.
2.5 Term.
(a) Site Term. The term of the Site Lease Supplement with respect
to each Site (the "Site Term") shall begin on the Site Acquisition Date for such
Site and shall end on the date (such date, the "Site Expiration Date") which is
the earlier of (i) the day preceding the fifth (5th) anniversary of the Site
Acquisition Date, or, if the Site Term is renewed in accordance with Article XXI
hereof, the day preceding the anniversary date, requested by Lessee pursuant to
Section 21.1, of the Site Renewal Effective Date, (ii) the date on which such
Site Lease Supplement is terminated in accordance with the provisions of this
Lease or (iii) the Maturity Date.
(b) Equipment Term. The term with respect to an Equipment Group
subject to this Lease (the "Equipment Term")shall begin on the Equipment
Acquisition Date for such Equipment Group and shall end on the date (such date,
the "Equipment Pool Expiration Date") which is the earlier of (i) the day
preceding the Original Equipment Pool Expiration Date relating to the Equipment
Pool of which such Equipment Group constitutes a part,
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or, if the Equipment Term relating to the entire Equipment Pool is renewed in
accordance with Article XXI hereof, the day preceding the first (1st)
anniversary of the Equipment Renewal Effective Date relating to such Equipment
Pool, (ii) the date on which this Lease is terminated with respect to such
Equipment Group in accordance with the provisions of this Lease or (iii) the
Maturity Date.
(c) Lease Term. The term of this Lease (the "Term") shall begin on
the Document Closing Date and shall end on the date of the last occurring Site
Expiration Date or Equipment Pool Expiration Date.
2.6 Title. Each Site and Unit of Equipment is leased (or subleased) to
Lessee without any representation or warranty, express or implied, by Lessor and
subject to the rights of parties in possession, the existing state of title
(including, without limitation, the Permitted Exceptions), and all Applicable
Laws and Regulations. Lessee shall in no event have any recourse against Lessor
for any defect in or exception to title to any Leased Property other than
resulting from Lessor Liens.
2.7 Other Property. Lessee may from time to time own or hold under
lease from Persons other than Lessor, furniture, trade fixtures, equipment and
other tangible personal property (including software) located on or about any
Site and which personal property is not subject to this Lease. Lessor shall from
time to time, upon the reasonable request, and at the sole cost and expense of
Lessee, which request shall be accompanied by such supporting information and
documents as Lessor may reasonably require, promptly acknowledge in writing to
Lessee or other Persons that the particular items of furniture, trade fixtures
and equipment in question and which are located on a Site are not part of the
Leased Property and that, subject to the rights of Lessor under any other
Operative Documents, Lessor does not own or have any other right or interest in
or to such furniture, trade fixtures and equipment (other than the Equipment).
ARTICLE III
RENT
3.1 Rent. (a) During the Term, Lessee shall pay (i) Basic Rent when due
as specified in Section 3.2 below and (ii) Supplemental Rent when due as
specified in Section 3.3 below.
(b) Neither Lessee's inability or failure to take possession of all or
any portion of any Leased Property when delivered by Lessor, nor Lessor's
inability or failure to deliver
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all or any portion of any Leased Property to Lessee on or before the applicable
Site Acquisition Date or Equipment Acquisition Date, as the case may be, nor
Lessor's inability or failure to timely deliver any invoice for Rent or notice
relating to the calculation, method or place of payment, whether or not
attributable to any act or omission of Lessee or any act or omission of Lessor,
or for any other reason whatsoever, shall delay or otherwise affect Lessee's
obligation to pay Rent for such Leased Property in accordance with the terms of
this Lease.
3.2 Payment of Basic Rent. Lessee shall pay Basic Rent (i) on each
Payment Date, (ii) on the date required under Section 20.1 in connection with
Lessee's exercise of the Purchase Option, (iii) on the date required under
Section 22.3 in connection with Lessee's exercise of a Site Remarketing Option
or an Equipment Pool Remarketing Option, (iv) on demand as specified in Section
24.1 relating to a holdover by Lessee and (v) on any date on which this Lease
shall terminate with respect to any or all of the Leased Property. Basic Rent
shall be paid absolutely net to Lessor, so that this Lease shall yield to Lessor
the full amount thereof, without setoff, deduction or reduction.
3.3 Payment of Supplemental Rent. Lessee shall pay to Lessor or the
Person entitled thereto any and all Supplemental Rent promptly as the same shall
become due and payable. Lessee shall pay to Lessor, as Supplemental Rent, on
demand, among other things, (a) all amounts payable by Lessee to Lessor pursuant
to (i) Section 18.1 hereof or otherwise representing amounts advanced (other
than Advances) by any Participant or Agent directly on behalf of Lessee or for
the Leased Property and for which Lessee is obligated to repay or to reimburse
such Person pursuant to the Operative Documents, (ii) any provision hereof
requiring Lessee to indemnify Agent, Lessor or any other Participant, and (iii)
any provision requiring Lessee to make a payment upon termination of this Lease
with respect to any or all of the Leased Property, and (b) to the extent
permitted by Applicable Laws and Regulations, interest at the applicable Overdue
Rate on any installment of Basic Rent not paid when due for the period for which
the same shall be overdue and on any payment of Supplemental Rent not paid when
due or demanded, as the case may be, by Lessor for the period from the due date
or the date of any such demand, as the case may be, until the same shall be
paid. Supplemental Rent constituting Commitment Fees shall be paid in accordance
with Section 4.7 of the ParticipationAgreement. All other amounts constituting
Supplemental Rent, except for amounts relating to the Document Closing Date,
which amounts shall be paid on or before such date, shall be paid by Lessee to
Lessor within thirty (30) days of receiving an invoice therefor. The expiration
or other termination of Lessee's obligations to pay Basic Rent hereunder shall
not limit or modify the obligations of Lessee with respect to Supplemental Rent.
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Unless expressly provided otherwise in this Lease, in the event of any failure
on the part of Lessee to pay and discharge any Supplemental Rent as and when
due, Lessee shall also promptly pay and discharge any fine, penalty, interest or
cost which may be assessed or added under any agreement with a third party for
nonpayment or late payment of such Supplemental Rent, all of which shall also
constitute Supplemental Rent.
3.4 Method and Amount of Payment. Basic Rent and Supplemental Rent
shall be paid to Lessor (or, in the case of Supplemental Rent, to such Person as
may be entitled thereto) at such place as Lessor (or such other Person) shall
specify in writing to Lessee pursuant to Section 13.3 of the Participation
Agreement; provided that, so long as the Notes remain outstanding, Rent shall be
paid directly to Agent to the account at the bank set forth on Schedule II to
the Participation Agreement and to such other account or accounts at such other
bank or banks or in such other manner as Agent shall from time to time otherwise
direct at least three (3) Business Days prior to the date in which the payment
of such Rent is due. Each payment of Rent shall be made by Lessee prior to 1:00
p.m. New York time (and payments made after such time shall be deemed to have
been made on the next day) at the place of payment by wire transfer in funds
consisting of lawful currency of the United States of America which (in the case
of any amount payable to Lessor, Agent or any Participant) shall be immediately
available on the scheduled date when such payment shall be due. The provisions
of the foregoing sentence of this Section 3.4 shall be applicable only to Basic
Rent and to Supplemental Rent payable to, or on behalf of or for the account of,
Lessor, any Participant, Agent and any other Indemnitee. Any amounts payable by
Lessee to Lessor hereunder shall be payable in accordance with Section 5.2 of
the Participation Agreement.
3.5 Late Payments. If any Basic Rent shall not be paid when due, Lessee
shall pay to Lessor, or if any Supplemental Rent payable to or on behalf or for
the account of Lessor, any Participant, Agent or other Indemnitee is not paid
when due, Lessee shall pay to whomever shall be entitled thereto, in each case
as Supplemental Rent, interest at the Overdue Rate (to the maximum extent
permitted by law) on such overdue amount from and including the due date thereof
(not including any applicable grace period) to but excluding the Business Day of
payment thereof.
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ARTICLE IV
UTILITY CHARGES
4.1 Utility Charges for Site. Lessee shall pay or cause to be paid all
charges for electricity, power, gas, oil, water, telephone, sanitary sewer
service and all other rents and utilities used in or on each Site during the
Term. Lessee shall be entitled to receive any credit or refund with respect to
any utility charge paid by Lessee and the amount of any credit or refund
received by Lessor on account of any utility charges paid by Lessee, net of the
costs and expenses reasonably incurred by Lessor in obtaining such credit or
refund, shall be promptly paid over to Lessee. All charges for utilities imposed
with respect to a Site for a billing period during which this Lease expires or
terminates (except pursuant to Sections 20.1, 20.2 or 20.3) shall be adjusted
and prorated on a daily basis between Lessee and the purchaser of the Site, and
each such party shall pay or reimburse the other for its pro rata share thereof;
provided, that in no event shall Lessor have any liability therefor.
ARTICLE V
QUIET ENJOYMENT
5.1 Quiet Enjoyment of Leased Property. Subject to the rights of Lessor
contained in Article XVII and the other terms of the Operative Documents, Lessee
(and any of its permitted subtenants) shall peaceably and quietly have, hold and
enjoy the Leased Property for the applicable Site Term or Equipment Term, free
of any claim or other action by Lessor or anyone rightfully claiming by, through
or under Lessor (other than Lessee) with respect to any matters arising from and
after the applicable Acquisition Date. Such right of quiet enjoyment is
independent of, and shall not affect Lessor's, Agent's or, if permitted, any
Participant's rights otherwise to initiate legal action to enforce, the
obligations of Lessee under this Lease or the other Operative Documents.
ARTICLE VI
NET LEASE
6.1 Net Lease. This Lease shall constitute a net lease. Any present or
future law to the contrary notwithstanding, this Lease shall not terminate, nor
shall Lessee be entitled to any abatement, suspension, deferment, reduction,
setoff, counterclaim, or defense with respect to the Rent, nor shall the
obligations of Lessee hereunder be affected (except as expressly
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herein permitted and by performance of the obligations in connection therewith
and subject to the limitations set forth in Section 5.2(b) of the Participation
Agreement) by reason of: (i) any defect in the condition, merchantability,
design, construction, quality or fitness for use of any Leased Property or any
part thereof, or the failure of any Leased Property to comply with all
Applicable Laws and Regulations, including any inability to occupy or use any
Leased Property by reason of such noncompliance; (ii) any damage to, removal,
abandonment, salvage, loss, contamination of or Release from, scrapping or
destruction of or any requisition or taking of any Leased Property or any part
thereof; (iii) any restriction, prevention or curtailment of or interference
with any use of any Leased Property or any part thereof including eviction; (iv)
any defect in title to or rights to any Leased Property or any Lien on such
title or rights or on any Leased Property (other than Lessor Liens); (v) any
change, waiver, extension, indulgence or other action or omission or breach in
respect of any obligation or liability of or by Lessor, Agent or any
Participant; (vi) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceedings relating to
Lessee, Lessor, Agent, any Participant or any other Person, or any action taken
with respect to this Lease by any trustee or receiver of Lessee, Lessor, Agent,
any Participant or any other Person, or by any court, in any such proceeding;
(vii) any claim that Lessee has or might have against any Person, including
without limitation Lessor, any vendor, manufacturer, contractor of or for any
Leased Property, Agent or any Participant; (viii) any failure on the part of
Lessor to perform or comply with any of the terms of this Lease, of any other
Operative Document or of any other agreement; (ix) any invalidity or
unenforceability or illegality or disaffirmance of this Lease against or by
Lessee or any provision hereof or any of the other Operative Documents or any
provision of any thereof; (x) the impossibility or illegality of performance by
Lessee, Lessor or both; (xi) any action by any court, administrative agency or
other Governmental Authority; (xii) any restriction, prevention or curtailment
of or interference with the construction on or any use of any Leased Property or
any part thereof; (xiii) the failure of Lessee to achieve any accounting or tax
benefits or the characterization of the transaction intended by Article XXVI; or
(xiv) any other cause or circumstances whether similar or dissimilar to the
foregoing and whether or not Lessee shall have notice or knowledge of any of the
foregoing. The parties intend that the obligations of Lessee hereunder shall be
covenants and agreements that are separate and independent from any obligations
of Lessor hereunder or under any other Operative Documents and the obligations
of Lessee shall continue unaffected unless such obligations shall have been
modified or terminated in accordance with an express provision of this Lease.
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6.2 No Termination or Abatement. Lessee shall remain obligated under
this Lease in accordance with its terms and shall not take any action to
terminate, rescind or avoid this Lease, notwithstanding any action for
bankruptcy, insolvency, reorganization, liquidation, dissolution, or other
proceeding affecting Lessor, Agent or any Participant, or any action with
respect to this Lease which may be taken by any trustee, receiver or liquidator
of Lessor, Agent or any Participant or by any court with respect to Lessor,
Agent or any Participant. Lessee hereby waives all right (i) to terminate or
surrender this Lease (except as provided herein) or (ii) to avail itself of any
abatement, suspension, deferment, reduction, setoff, counterclaim or defense
with respect to any Rent. Lessee shall remain obligated under this Lease in
accordance with its terms and Lessee hereby waives to the fullest extent
possible any and all rights now or hereafter conferred by statute or otherwise
to modify or to avoid strict compliance with its obligations under this Lease.
Notwithstanding any such statute or otherwise, Lessee shall be bound by all of
the terms and conditions contained in this Lease.
ARTICLE VII
SUBLETTING; ASSIGNMENT
7.1 Subletting and Assignment. Lessee may not assign this Lease or any
of its rights or obligations hereunder in whole or in part to any Person. Lessee
may, without the consent of Lessor, sublease all or any portion of any Leased
Property to any Person. No sublease or other relinquishment of possession of any
Leased Property shall in any way discharge or diminish any of Lessee's
obligations to Lessor hereunder and Lessee shall remain directly and primarily
liable under this Lease as to the Leased Property, or portion thereof, so
sublet. Any sublease of any Leased Property shall be in writing, shall prohibit
further subleases and may not have a term which extends beyond the applicable
Site Expiration Date or Equipment Pool Expiration Date, as the case may be,
unless Lessor and Agent have approved the sublease. Notwithstanding the
foregoing, all subleases shall be made subject to and subordinated to this Lease
and to the rights of Lessor hereunder, and unless Lessor, Lessee, and the
subtenant have entered into a nondisturbance and attornment agreement acceptable
to Lessor and Agent, shall expressly provide for the surrender of the related
Leased Property after a Lease Event of Default hereunder. With respect to any
sublease to any Person that is not an Affiliate of Lessee, Lessee shall not
sublease the Leased Property to a person who shall then be engaged in any
proceedings for relief under any bankruptcy or insolvency law or laws relating
to relief of debtors. With respect to any sublease to a person who is not an
Affiliate of Lessee, all of Lessee's right, title and interest in, to and
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under each sublease are hereby pledged by Lessee to Agent, as collateral for
Lessee's obligations under the Operative Documents, and Lessee shall, at its
expense do any further act and execute, acknowledge, deliver, file, register and
record any further documents which Agent may reasonably request in order to
create, perfect, preserve and protect Agent's security interest in such
sublease. Lessee shall not permit or consent to any renewal or extension of a
sublease at any time when a Lease Event of Default has occurred and is
continuing. Lessee shall promptly deliver to Agent and Lessor a copy of any
sublease relating to fifty percent (50%) or more of the rentable square footage
of a Facility or Site (computed on the basis of net rentable square feet) which
Lessee enters into with a Person other than a Subsidiary of Lessee.
ARTICLE VIII
CONDITION OF LEASED PROPERTY
8.1 Condition of the Sites and the Units of Equipment. LESSEE
ACKNOWLEDGES AND AGREES THAT ALTHOUGH LESSOR WILL OWN AND HOLD TITLE TO THE
SITE, LESSEE IS SOLELY RESPONSIBLE UNDER THE TERMS OF THE CONSTRUCTION AGENCY
AGREEMENT FOR THE DESIGN, DEVELOPMENT, BUDGETING AND CONSTRUCTION OF THE
FACILITY AND ANY ALTERATIONS OR MODIFICATIONS. LESSEE FURTHER ACKNOWLEDGES AND
AGREES THAT: (i) EACH OF THE UNITS OF EQUIPMENT LEASED BY IT IS OF A SIZE,
DESIGN, CAPACITY AND MANUFACTURE SELECTED BY LESSEE; (ii) LESSEE IS SATISFIED
THAT THE SAME IS SUITABLE FOR ITS PURPOSES; AND (iii) NEITHER LESSOR, AGENT NOR
ANY PARTICIPANT IS A MANUFACTURER THEREOF OR A DEALER IN LEASED PROPERTY OF SUCH
KIND. LESSEE HAS EXAMINED THE SITES AND THE UNITS OF EQUIPMENT AND AS AMONG
LESSEE, LESSOR, AGENT AND EACH OF THE PARTICIPANTS IN CONNECTION WITH THE
OVERALL TRANSACTION HAS FOUND THE SAME TO BE SATISFACTORY IN ALL RESPECTS LESSEE
FURTHER ACKNOWLEDGES AND AGREES THAT IT IS LEASING EACH SITE AND UNIT OF
EQUIPMENT "AS IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) BY LESSOR, AGENT, OR ANY PARTICIPANT AND IN EACH CASE SUBJECT TO (A)
THE EXISTING STATE OF TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION
THEREOF, (C) ANY STATE OF FACTS WHICH A PHYSICAL INSPECTION OR AN ACCURATE
SURVEY MIGHT SHOW, AND (D) VIOLATIONS OF APPLICABLE LAWS AND REGULATIONS WHICH
MAY EXIST ON THE DATE HEREOF. NEITHER LESSOR, AGENT, NOR ANY PARTICIPANT HAS
MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO
THE TITLE, VALUE, HABITABILITY, USE, CONDITION, DESIGN, OPERATION, OR FITNESS
FOR USE OF ANY SITE OR UNIT OF EQUIPMENT (OR ANY PART THEREOF), OR ANY OTHER
REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY SITE OR UNIT OF EQUIPMENT (OR ANY PART THEREOF) AND NEITHER
LESSOR, AGENT, NOR ANY PARTICIPANT
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SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE
OF ANY LEASED PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS
AND REGULATIONS. Lessee has been afforded full opportunity to inspect the Leased
Property, is satisfied with the results of its inspections and is entering into
this Lease solely on the basis of the results of its own inspections, and all
risks incident to the matters discussed in the preceding sentence, as between
Lessor, Agent and Participants, on the one hand, and Lessee, on the other, are
to be borne by Lessee. The provisions of this Article VIII have been negotiated,
and, except to the extent otherwise expressly stated, the foregoing provisions
are intended to be a complete exclusion and negation of any representations or
warranties by any of Lessor, Agent or Participants, express or implied, with
respect to the Leased Property (or any portion thereof or interest therein),
that may arise pursuant to any Applicable Laws and Regulations now or hereafter
in effect or otherwise. Provided that no Lease Event of Default has occurred and
is continuing, neither Section 6.1 nor this Section 8.1 shall prevent Lessee's
right to enforce manufacturers' or suppliers' warranties with respect to any
Leased Property against a manufacturer or supplier.
8.2 Possession and Use of the Leased Property. Each Site may be used
for any Permitted Use that does not diminish or impair in any material respect
(a) the value of such Site from the Fair Market Value as of the related Site
Acquisition Date as stated in the appraisal delivered pursuant to Section 6.2(a)
of the Participation Agreement or (b) the utility or useful life of such Site
from that which existed on the related Site Acquisition Date and in a manner
consistent with the standards applicable to properties of a similar nature and
usage in the geographic area in which such Site is located and in any event not
less than the standards applied by Lessee for other comparable properties owned
or leased by Lessee or its Affiliates. Lessee shall not permit any Unit of
Equipment or any Part relating to such Unit of Equipment to be used for any
purpose other than the operation for which it was designed. Lessee shall pay, or
cause to be paid, all charges and costs required in connection with the use of
the Leased Property as contemplated by this Lease and, to the extent applicable,
the Construction Agency Agreement. Lessee shall not commit or permit any waste
of the Leased Property or any part thereof which would, individually or in the
aggregate, have a Material Adverse Effect. Lessee shall at all times keep each
Unit of Equipment in a location in which the security interest created in such
Unit of Equipment by the Operative Documents shall remain a perfected, first
priority security interest (other than Permitted Liens), and Lessee shall not
move any Unit of Equipment without first making any filings or recordings
necessary (including amendments and continuations) to maintain
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the security interest therein as an uninterrupted, perfected, first priority
security interest (other than Permitted Liens).
ARTICLE IX
COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS
9.1 Compliance with Applicable Laws and Regulations and Insurance
Requirements. Subject to the terms of Article XIII relating to Permitted
Contests, Lessee, at its sole cost and expense, shall (a) comply in all respects
with all Applicable Laws and Regulations (including all Environmental Laws
applicable to the record owner of the Sites) and Insurance Requirements relating
to the Leased Property, including the use, construction, operation, maintenance,
repair and restoration thereof and the remarketing thereof pursuant to Article
XXII, whether or not compliance therewith shall require structural or
extraordinary changes in the Facilities or interfere with the use and enjoyment
of the Leased Property, except where the failure to so comply would not
individually or in the aggregate have a Material Adverse Effect, and (b)
procure, maintain and comply in all respects with all licenses, permits, orders,
approvals, consents and other authorizations required for the construction, use,
maintenance, operation, repair and restoration of the Leased Property, except
where the failure to so procure, maintain and comply would not, individually or
in the aggregate, have a Material Adverse Effect.
ARTICLE X
MAINTENANCE
10.1 Maintenance and Repair; Return. (a) Lessee, at its sole cost and
expense, shall maintain each Site and Unit of Equipment in good condition and in
good repair (ordinary wear and tear excepted) and operating order, and make all
necessary repairs thereto, of every kind and nature whatsoever, whether interior
or exterior, ordinary or extraordinary, structural or nonstructural, in each
case as required by all Applicable Laws and Regulations and Insurance
Requirements and shall make all Required Modifications and Required Equipment
Alterations. All of the foregoing obligations shall be carried out by Lessee on
a basis and within the time period consistent with the operation and maintenance
of properties and equipment comparable in type to the applicable Site or Unit of
Equipment, and in no event less than the standards applied by Lessee in the
operation and maintenance of other comparable properties owned or leased by
Lessee or its Affiliates. Lessee shall not permit the names, initials or
insignia of any Person other than Lessor or Agent to
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be placed on any Unit of Equipment as designation that may be interpreted as a
claim of ownership or a Lien. Lessee shall maintain, and, upon reasonable notice
during normal business hours, shall permit Lessor and Agent to inspect any
records, logs and other materials required by any Governmental Authority having
jurisdiction to be maintained or filed in respect of the Leased Property.
(b) Lessor shall under no circumstances be required to build any
improvements on any Leased Property, make any repairs, replacements, alterations
or renewals of any nature or description to any Leased Property, make any
expenditure whatsoever in connection with this Lease or maintain any Leased
Property in any way. Lessor shall not be required to maintain, repair or rebuild
all or any part of any Site or Unit of Equipment, and Lessee waives any right to
(i) require Lessor to maintain, repair, or rebuild all or any portion of the
Leased Property, or (ii) make repairs at the expense of Lessor pursuant to any
Applicable Laws and Regulations, Insurance Requirement, contract, agreement,
covenant, condition or restriction in effect at any time during the Term.
(c) Unless Lessee has exercised its rights to purchase and purchases in
accordance with Section 20.1 a Site or Equipment Group pursuant to its Purchase
Option, Lessee shall, upon the expiration or earlier termination of the
applicable Site Lease Supplement or Equipment Group Supplement, vacate and
surrender the Leased Property to Lessor free and clear of all Liens other than
Permitted Exceptions and Lessor Liens, in as good condition as it was on the
date it became subject to this Lease, ordinary wear and tear excepted, and in
compliance with all Applicable Laws and Regulations (and in any event without
(x) any asbestos installed or maintained in any part of any Facility, (y) any
polychlorinated biphenyls (PCBs) in, on or used or located at any Site, and (z)
any other Hazardous Substances, except for Permitted Hazardous Substances);
provided, however, that if Lessee elects the Remarketing Option, nothing in this
Section 10.1(c) shall relieve Lessee of its obligation to deliver an
Environmental Audit and an environmental assessment satisfying the requirements
of Section 22.1(b).
ARTICLE XI
MODIFICATIONS AND ALTERATIONS
11.1 Modifications of Sites. (a) Lessee, at its sole cost and expense,
may at any time and from time to time make alterations, renovations,
improvements and additions to any Site or any part thereof and substitutions and
replacements therefor (collectively, "Modifications"); provided that: (i) except
for
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any Modification required to be made pursuant to Applicable Laws and Regulations
or an Insurance Requirement (a "Required Modification"), no Modification shall
impair in any material respect the value, utility or useful life of such Site or
any part thereof from that which existed immediately prior to such Modification;
(ii) the Modification shall be done expeditiously and in a good and workmanlike
manner; (iii) Lessee shall comply in all material respects with all Applicable
Laws and Regulations (including all Environmental Laws) and Insurance
Requirements applicable to the Modification, including the obtaining of all
permits and certificates of occupancy, and the structural integrity of the Site
shall not be adversely affected in any material respect; (iv) subject to the
terms of Article XIII relating to permitted contests, Lessee shall pay all costs
and expenses and shall discharge (or cause to be insured or bonded over) within
sixty (60) days after the same shall be filed (or otherwise become effective)
any Liens arising with respect to the Modification; and (v) such Modifications
shall comply with Sections 8.2 and 10.1. All Modifications (other than those
that both are not Required Modifications and are readily removable without
impairing in any material respect the value, utility or remaining useful life of
the applicable Site) shall remain part of the realty and shall be subject to
this Lease, and title thereto shall immediately vest in Lessor.
(b) Lessee shall deliver to Lessor and Agent a brief written narrative
of the work to be done in connection with any Modification (excluding
construction and alterations performed pursuant to the Construction Agency
Agreement) to any Site the cost of which is anticipated to exceed $5,000,000 in
the aggregate.
11.2 Modifications and Alterations of Equipment. In case any Unit of
Equipment, or any item of equipment, part or appliance therein (each, a "Part")
is required to be altered, added to or modified in order to comply with any
Applicable Laws and Regulations or Insurance Requirement (a "Required Equipment
Alteration"), Lessee agrees to make such Required Equipment Alteration at its
sole cost and expense. Lessee shall have the right to make any modification,
alteration or improvement to any Unit of Equipment, or to remove any Part which
has become worn out, broken or obsolete, provided in each case that Lessee
continues to be in compliance with Section 9.1 and that such action (a) will not
impair in any material respect the value, utility or useful life of the
applicable Unit of Equipment or any Part thereof from that which existed
immediately prior to such Alteration, or impair its originally intended use or
function or decrease its economic useful life in any material respect, and (c)
is done in a good and workmanlike manner. All Parts affixed to or installed as a
part of any Unit of Equipment, excluding temporary replacements, shall thereupon
become subject to the
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security interest under this Lease. If no Lease Event of Default or Lease
Default shall exist, Lessee may remove, at its expense, any Part at any time
during the Term (such Part, a "Removable Part"): (i) which is in addition to,
and not in replacement of or substitution for, any Part originally incorporated
or installed in or attached to a Unit of Equipment on the date such item became
subject to this Lease or any Part in replacement of or substitution for any such
Part originally incorporated or installed or attached to such Unit of Equipment;
(ii) which is not a Required Equipment Alteration; and (iii) which can be
removed from any Unit of Equipment without causing damage to such Unit of
Equipment or diminishing or impairing the value, utility or useful life which
such Unit of Equipment would have had at such time had such addition not
occurred; provided, that: (x) such removal will not impair the value, utility or
useful life which the Unit of Equipment would have had at such time had such
Part not been affixed or placed to or on such Unit of Equipment; and (y) such
Part is not necessary for the continued normal use of such Unit of Equipment.
Lessee shall repair all damage to any Unit of Equipment resulting from any
alteration so as to restore such Unit of Equipment to the condition in which it
existed prior to such alteration (ordinary wear and tear excepted). Neither
Lessor, Agent nor any Participant shall have any obligation to pay for or to
reimburse Lessee for any alteration required or permitted by this Section 11.2.
All Parts incorporated or installed in or attached or added to any Unit of
Equipment as the result of alterations, modifications or additions under this
Section 11.2, except Removable Parts while removed from any Unit of Equipment,
shall, without further act, vest in Lessor to secure Lessee's performance of its
obligations under the Operative Documents, in the manner provided in Section
26.1(d) and the other applicable provisions of Article XII shall apply with
respect to such Parts. Upon the removal by Lessee of any Removable Part as
provided herein, such Removable Part shall no longer be deemed part of the Unit
of Equipment from which it was removed. Any Removable Part not removed by Lessee
as provided herein prior to the end of the applicable Site Term or Equipment
Term or other termination of the Lease shall become part of the Leased Property.
ARTICLE XII
TITLE
12.1 Warrant of Title. (a) Lessee agrees that except as otherwise
provided herein and subject to the terms of Article XIII relating to Permitted
Contests, Lessee shall not directly or indirectly create or allow to remain, and
shall promptly discharge at its sole cost and expense, any Lien, defect,
attachment, levy, title retention agreement or claim upon
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any Leased Property or any Modifications to a Site or any Unit of Equipment, or
any Lien, attachment, levy or claim with respect to the Rent or with respect to
any amounts held by Agent pursuant to the Loan Agreement or the other Loan
Documents, other than Permitted Liens and Lessor Liens.
(b) Nothing contained in this Lease shall be construed as constituting
the consent or request of Lessor, expressed or implied, to or for the
performance by any contractor, mechanic, laborer, materialman, supplier or
vendor of any labor or services or for the furnishing of any materials for any
construction, alteration, addition, repair or demolition of or to any Site or
any part thereof. NOTICE IS HEREBY GIVEN THAT NEITHER LESSOR, NOR ANY
PARTICIPANT NOR AGENT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS
FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING A SITE OR UNIT OF
EQUIPMENT OR ANY PART OR PORTION THEREOF THROUGH OR UNDER LESSEE, AND THAT NO
MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH
TO OR AFFECT THE INTEREST OF LESSOR, AGENT OR ANY PARTICIPANT IN AND TO ANY
LEASED PROPERTY.
12.2 Grants and Releases of Easements on Sites. Provided that no Lease
Event of Default shall have occurred and be continuing and subject to the
provisions of Articles VIII, IX, X and XI, Lessor hereby consents in each
instance to the following actions by Lessee, in the name and stead of Lessor,
but at Lessee's sole cost and expense: (a) the granting of easements, licenses,
rights-of-way and other rights and privileges in the nature of easements
reasonably necessary or desirable for the use, repair, or maintenance of any
Site as herein provided; (b) the release of existing easements or other rights
in the nature of easements which are for the benefit of any Site; (c) the
dedication or transfer of unimproved portions of any Site for road, highway or
other public purposes; (d) the execution of petitions to have a Site annexed to
any municipal corporation or utility district; and (e) the execution of
amendments to any covenants and restrictions affecting any Site; provided,
however, that in each case (i) such grant, release, dedication, transfer,
annexation or amendment does not materially impair the value, utility or
remaining useful life of the applicable Site, (ii) such grant, release,
dedication, transfer, annexation or amendment is reasonably necessary or
desirable in connection with the use, maintenance, alteration or improvement of
the applicable Site, (iii) such grant, release, dedication, transfer, annexation
or amendment will not cause the applicable Site or any portion thereof to fail
to comply in any material respect with the provisions of this Lease or any other
Operative Documents and in any material respect with all Applicable Laws and
Regulations (including, without limitation, all applicable zoning, planning,
building and subdivision ordinances, all applicable restrictive covenants and
all applicable architectural approval
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requirements); (iv) all governmental consents or approvals required prior to
such grant, release, dedication, transfer, annexation or amendment have been
obtained, and all filings required prior to such action have been made; (v) such
grant, release, dedication, transfer, annexation or amendment will not result in
any material down-zoning of the applicable Site or any portion thereof or a
material reduction in the maximum density or development rights available to the
applicable Site under all Applicable Laws and Regulations; (vi) Lessee shall
remain obligated under this Lease and under any instrument executed by Lessee
consenting to the assignment of Lessor's interest in this Lease as security for
indebtedness, in each such case in accordance with their terms, as though such
grant, release, dedication, transfer, annexation or amendment had not been
effected and (vii) Lessee shall pay and perform any obligations of Lessor under
such grant, release, dedication, transfer, annexation or amendment. Without
limiting the effectiveness of the foregoing, provided that no Lease Event of
Default shall have occurred and be continuing, Lessor shall, upon the request of
Lessee, and at Lessee's sole cost and expense, execute and deliver any
instruments necessary or appropriate to confirm any such grant, release,
dedication, transfer, annexation or amendment to any Person permitted under this
Section 12.2.
ARTICLE XIII
PERMITTED CONTESTS
13.1 Permitted Contests in Respect of Applicable Laws and Regulations.
If, to the extent and for so long as (a) a test, challenge, appeal or proceeding
for review of any Applicable Laws and Regulations relating to any Site or Units
of Equipment shall be prosecuted diligently and in good faith in appropriate
proceedings by Lessee or (b) compliance with such Applicable Laws and
Regulations shall have been excused or exempted by a valid nonconforming use,
permit, waiver, extension or forbearance, Lessee shall not be required to comply
with such Applicable Laws and Regulations but only if and so long as any such
test, challenge, appeal, proceeding or noncompliance shall constitute a
Permitted Contest.
Lessor will not be required to join in any proceedings pursuant to this
Section 13.1 unless a provision of any Applicable Laws and Regulations requires,
or, in the good faith opinion of Lessee, it is helpful to Lessee, that such
proceedings be brought by or in the name of Lessor; and in that event Lessor
will join in the proceedings or permit them or any part thereof to be brought in
its name if and so long as (i) no Lease Event of Default or Lease Default has
occurred and is continuing and (ii) Lessee pays all related expenses and
indemnifies Lessor, Agent
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and Participants to the satisfaction of the respective indemnitees.
ARTICLE XIV
INSURANCE
14.1 Public Liability and Workers' Compensation Insurance. During the
Term for each Site and the Unit of Equipment, Lessee shall procure and carry, at
Lessee's sole cost and expense, commercial general liability insurance for
claims for injuries or death sustained by persons or damage to property while on
or using such Leased Property and such other public liability coverages as are
ordinarily procured by Lessee or its Affiliates who own or operate similar
properties or as required by Lessor or Agent. Such insurance shall be on terms
and in amounts that are no less favorable than insurance maintained by Lessee
with respect to similar properties that it owns and that are in accordance with
normal industry practice, but in any case shall provide liability coverage of at
least $10,000,000 per person and $10,000,000 for property damage per occurrence.
The policy shall be endorsed to name Lessor, Agent and each Participant as
additional insureds (or the insurer shall issue a certificate to such Persons to
such effect). The policy shall also specifically provide that the policy shall
be considered primary insurance which shall apply to any loss or claim before
any contribution by any insurance which Lessor, Agent or Participants may have
in force. Lessee shall, in the construction of the Facilities (including in
connection with any Modifications thereof) and the operation of the Sites and
the Units of Equipment comply with the applicable workers' compensation laws and
protect Lessor, Agent and Participants against any liability under such laws.
14.2 Hazard and Other Insurance. During the Term, Lessee shall keep, or
cause to be kept, subject to the last sentence of this paragraph, each Site and
the Equipment insured against loss or damage by fire and other risks on terms
and in amounts that are no less than the full replacement cost of such Leased
Property (without taking into account any depreciation) and no less favorable
than insurance covering other similar properties or equipment owned by Lessee
and that are in accordance with normal industry practice. During the
construction of any Facility, Lessee shall also maintain builders' risk
insurance. All insurance proceeds in respect of any loss or occurrence for which
the proceeds related thereto are (i) less than or equal to $1,000,000 for a Unit
of Equipment or $5,000,000 for a Site, in the absence of the occurrence and
continuance of a Lease Event of Default or Lease Default, shall be adjusted by
and paid to Lessee for application toward the reconstruction, repair or
refurbishment of the applicable Leased Property and (ii) equal to
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or greater than $1,000,000 for a Unit of Equipment or $5,000,000 for a Site
shall be adjusted jointly by Lessee and Lessor (unless a Lease Event of Default
or Lease Default has occurred and is continuing, in which case such proceeds
shall be adjusted solely by Lessor) and held by Lessor for application in
accordance with Article XV. In addition, Lessee shall at all times during the
Term maintain business interruption insurance covering, for a period of no less
than thirty (30) days, actual losses for any period during which the earnings of
Lessee are impaired as a result of any property damage or other casualty.
Notwithstanding the above or any other term in this Lease, Lessee may
self-insure, by way of deductible provisions or retentions in insurance policies
or otherwise, the risks required to be insured against by this Section 14.2.
14.3 Coverage. (a) Lessee shall furnish Lessor and Agent with
certificates showing the insurance required under Sections 14.1 and 14.2 to be
in effect and naming Lessor, Agent, and each Participant as additional insureds
and showing the mortgagee endorsement required by Section 14.3(c). All such
insurance shall be at the sole cost and expense of Lessee. Such certificates
shall include a provision for thirty (30) days' advance written notice by the
insurer to Lessor and Agent in the event of cancellation or reduction of such
insurance.
(b) Lessee agrees that the insurance policy or policies required by
Section 14.2, shall include an appropriate clause pursuant to which such policy
shall provide that it will not be invalidated should Lessee waive, in writing,
prior to a loss, any or all rights of recovery against any party for losses
covered by such policy, and that the insurance in favor of Lessor, Agent and
Participants, and their respective rights under and interests in such policies
shall not be invalidated or reduced by any act or omission or negligence of
Lessee or any other Person having any interest in the Leased Property. Lessee
hereby waives any and all such rights against Lessor, Agent, and Participants to
the extent of payments made under such policies.
(c) All such insurance shall be written by an insurance company or
companies selected by Lessee which is rated in Best's Insurance Guide or any
successor thereto (or if there be none, an organization having a similar
national reputation) a general policyholder rating of at least "A" and a
financial rating of at least "VIII" or be otherwise acceptable to Agent and
Required Participants. All insurance policies required by Section 14.2 shall
include a standard form mortgagee endorsement in favor of Agent.
(d) Lessor shall not carry separate insurance concurrent in kind or
form or contributing in the event of loss with any insurance required under this
Article XIV except that Lessor may
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carry separate liability insurance so long as (i) Lessee's insurance is
designated as primary and in no event excess or contributory to any insurance
Lessor may have in force which would apply to a loss covered under Lessee's
policy and (ii) each such insurance policy will not cause Lessee's insurance
required under this Article XIV to be subject to a coinsurance exception of any
kind.
(e) Lessee shall pay as they become due all premiums for the insurance
required by Section 14.1 and Section 14.2, and shall renew or replace each
policy prior to the expiration date thereof. Throughout the Term, at the time
each of Lessee's insurance policies is renewed (but in no event less frequently
than once each year), Lessee shall deliver to Lessor and Agent certificates of
insurance evidencing that all insurance required by this Article XIV is being
maintained by Lessee with respect to each Leased Property and is in effect.
ARTICLE XV
CASUALTY; CONDEMNATION; ENVIRONMENTAL MATTERS
15.1 Casualty and Condemnation. (a) Subject to the provisions of this
Article XV and Article XVI (in the event Lessee delivers, or is obligated to
deliver, a Loss Determination Notice certifying a Significant Event has
occurred), and prior to the occurrence and continuation of a Lease Event of
Default, Lessee shall be entitled to receive (and Lessor hereby irrevocably
assigns to Lessee all of Lessor's right, title and interest in) any award,
compensation or insurance proceeds to which Lessee or Lessor may become entitled
by reason of their respective interests in the Leased Property (i) if all or a
portion of the Sites or Equipment is damaged or destroyed in whole or in part by
a Casualty or (ii) if the use, access, occupancy, easement rights or title to
such Leased Property or any part thereof, is the subject of a Condemnation;
provided, however, if a Lease Event of Default shall have occurred and be
continuing, such award, compensation or insurance proceeds shall be paid
directly to Agent or, if received by Lessee, shall be held in trust for Agent,
and shall be paid over by Lessee to Agent (or, if the Loans have been fully
paid, to Lessor) and held in accordance with the terms of this Section 15.1(a).
If, contrary to such provision, any such award, compensation or insurance
proceeds are paid to Lessor, any Lender, or Lessee rather than to Agent, Lessor,
Lenders and Lessee, as the case may be, hereby agree to transfer any such
payment to Agent. All amounts held by Lessor or Agent when a Lease Event of
Default or Lease Default exists hereunder on account of any award, compensation
or insurance proceeds either paid directly to Lessor or Agent or turned over to
Lessor or Agent shall either be (i)
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paid to Lessee for the repair of damage caused by such Casualty or Condemnation
in accordance with Section 15.1(e), or (ii) applied to the purchase price of the
related Leased Property on the related Termination Date, with any Excess
Proceeds being payable to Lessee.
(b) Lessee may appear in any proceeding or action to negotiate,
prosecute, adjust or appeal any claim for any award, compensation or insurance
payment on account of any such Casualty or Condemnation and shall pay all costs
and expenses thereof. At Lessee's reasonable request, and at Lessee's sole cost
and expense, Lessor and Agent shall participate in any such proceeding, action,
negotiation, prosecution or adjustment. Lessor and Lessee agree that this Lease
shall control the rights of Lessor and Lessee in and to any such award,
compensation or insurance payment.
(c) If Lessor or Lessee shall receive notice of a Casualty or of an
actual, pending or threatened Condemnation of a Leased Property or any interest
therein, which Casualty or Condemnation will in such party's reasonable good
faith judgment have a cost in excess of $1,000,000 to repair or restore or
result in a reduction in Fair Market Value of $1,000,000 or more with respect to
a Site, and $500,000 or more with respect to a Unit of Equipment, Lessor or
Lessee, as the case may be, shall give notice thereof to the other and to Agent
promptly after the receipt of such notice.
(d) In the event of a Casualty or receipt of notice by Lessee or Lessor
of a Condemnation with respect to a Site which would give rise to a notification
pursuant to Section 15.1(c), Lessee shall deliver to Lessor and Agent a Loss
Determination Notice with respect to such Site pursuant to Section 16.1, which
Loss Determination Notice may be given by Lessee together with the notice
delivered pursuant to Section 15.1(c). If Lessee has not delivered such Loss
Determination Notice within ninety (90) days after such occurrence, then, if
Lessor has determined that a Significant Event has occurred, Lessor may deliver
to Lessee within thirty (30) days after the end of the ninety (90) day period
within which Lessee has to deliver a Loss Determination Notice, a written notice
terminating the Lease with respect to such Site. If Lessee has not timely
delivered the Loss Determination Notice and Lessor has not timely delivered a
notice terminating the Lease with respect to a Site, then this Lease shall
(subject to the terms and conditions thereof) remain in full force and effect as
to such Site. If Lessee delivers a Loss Determination Notice certifying that a
Significant Event has occurred or Lessor delivers the notice provided for above
in this Subsection 15.1(d) within the time periods set forth above, this Lease
shall terminate as to such Site (but not as to the remaining Sites) and Lessee
shall purchase (or cause a designee
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to purchase) such affected Site on the next Quarterly Payment Date (or, if such
Quarterly Payment Date is within thirty (30) days of Lessor's receipt of such
Loss Determination Notice, on the Quarterly Payment Date next following such
Quarterly Payment Date) (a "Termination Date") pursuant to Article XVI hereof.
(e) If pursuant to this Section 15.1 this Lease shall continue in full
force and effect following a Casualty or Condemnation with respect to the
affected Site, Lessee shall, at its sole cost and expense (and, without
limitation, if any award, compensation or insurance payment is not sufficient to
restore such Site in accordance with this Section 15.1(e), Lessee shall pay the
shortfall), diligently repair any damage to the applicable Site caused by such
Casualty or Condemnation in conformity with the requirements of Sections 10.1
and 11.1 using the as-built Plans and Specifications for the applicable Site (as
modified to give effect to any subsequent Modifications, any Condemnation
affecting the Site and all Applicable Laws and Regulations) so as to restore the
applicable Site to at least the same value and useful life as existed
immediately prior to such Casualty or Condemnation. In such event, title to the
applicable Site shall remain with Lessor. Upon completion of any restoration
costing $1,000,000 or more, Lessee shall furnish Lessor an architect's
certificate of substantial completion and a Responsible Employee's Certificate
confirming that such restoration has been completed pursuant to this Lease.
(f) Upon a Significant Casualty with respect to an Equipment Group,
Lessee shall give prompt written notice thereof (a "Loss Notice") to Lessor,
which notice shall specify whether Lessee will:
(i) repay the applicable Equipment Group Balance, plus all
accrued and unpaid interest on the Loans, all accrued and unpaid Yield
on the Investment Amounts, and all other amounts owing by Lessee under
the Operative Documents with respect to such Equipment Group, which
repayment shall be made no later than the next scheduled Quarterly
Payment Date occurring after such Significant Casualty, provided, that
in any event such repayment shall be made no later than the last day of
the applicable Site Term or Equipment Term (the "Loss Settlement Date");
or
(ii) replace each of the Units of Equipment in the Equipment
Group with respect to which the Significant Casualty has occurred
pursuant to the provisions of Section 15.1(h); provided, that upon the
occurrence and during the continuance of a Lease Event of Default or a
Lease Default, Lessee shall be obligated, at the option of Required
Participants, to make the payments referred to in clause (i)
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above and shall not be entitled to exercise any right or election of
replacement as set forth in this clause (ii).
If Lessee has elected, or is required, to pay the Equipment Group
Balance and other amounts pursuant to clause (i) above, Lessee shall continue to
make all payments of Rent, if any, due in respect of such Unit of Equipment
until and including the Loss Settlement Date.
(g) In no event shall a Casualty or Condemnation with respect to any
Unit of Equipment or Site as to which this Lease remains in full force and
effect under this Section 15.1 affect Lessee's obligations to pay Rent pursuant
to Article III or to perform its obligations and pay any amounts due on the
Lease Expiration Date or pursuant to Articles XX and XXII.
(h) As soon as practicable after a Casualty involving a Unit of
Equipment (unless such event constitutes a Significant Casualty, in which event
the provisions of Section 15.1(f)(ii) hereof shall apply), Lessee shall repair
and rebuild the affected portions of such Unit of Equipment (or cause such
affected portions to be repaired and rebuilt) to the condition required to be
maintained by Section 10.1. In the event that any Part which may from time to
time be incorporated or installed in or attached to any Unit of Equipment
becomes at any time worn out, damaged or permanently rendered unfit for use for
any reason whatsoever, Lessee, at its sole cost and expense, will promptly
replace, or cause to be replaced, such Part with a replacement Part (a
"Replacement Part") in accordance with Lessee's customary practices, and as may
be required to comply with Sections 10.1 and 11.2 hereof. In addition, Lessee
may, at its sole cost and expense, remove in the ordinary course of maintenance,
service, repair, overhaul or testing, any Part, whether or not worn out,
destroyed, seized, confiscated, damaged beyond repair or permanently rendered
unfit for use; provided, that Lessee will, at its sole cost and expense, replace
such Part with a Replacement Part as promptly as is commercially reasonable. All
Replacement Parts shall be free and clear of all Liens (other than Permitted
Liens and Lessor Liens) and shall be in as good operating condition as, and
shall have a value and utility at least equal to, the Parts replaced, assuming
such replaced Parts and the Units of Equipment were in the condition and repair
required to be maintained by the terms of Section 10.1. Except as provided in
Section 11.2 hereof, any Part at any time removed from any Unit of Equipment
shall remain subject to this Lease no matter where located, until such time as
such Part shall be replaced by a Part which has been incorporated or installed
in or attached to such Unit of Equipment and which meets the requirements for a
Replacement Part specified above. Immediately upon any Replacement Part becoming
incorporated or installed in or attached to any such Unit of Equipment as above
provided,
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without further act: (i) title to the replaced Part (the "Replaced Part") shall
thereupon vest in Lessee, free and clear of all rights of Lessor, and shall no
longer be deemed a Part hereunder; (ii) such Replacement Part shall thereupon
vest in Lessor, as provided in Section 26.1 (in the same manner as the
underlying Unit of Equipment); and (iii) such Replacement Part shall become
subject to this Lease, the security interest created hereunder, and the
applicable Equipment Lease Supplement, and shall be deemed part of such Unit of
Equipment for all purposes hereof to the same extent as the Parts incorporated
or installed in or attached to such Unit of Equipment on the date such Unit of
Equipment became subject to this Lease.
(i) Upon the satisfaction of the conditions specified in Section
15.1(h), and the Replacement Part becoming subject to this Lease and the
security interest created hereunder, Lessor shall execute and deliver to Lessee
such documents as may be reasonably necessary to release the Replaced Part from
the terms and scope of this Lease (but without representations or warranties,
except that the Replaced Part is free and clear of all Lessor Liens), in such
form as may be reasonably requested by Lessee and are in form and substance
satisfactory to Required Participants, all at the sole cost and expense of
Lessee.
(j) In addition to the foregoing, if Lessee elects to replace any Unit
of Equipment (a "Replaced Unit") with a substitute Unit of Equipment (a
"Replacement Unit") as permitted by Sections 15.1(f)(ii) and (h) above:
(i) any such Replacement Unit shall satisfy one of the following
conditions: (x) the Replacement Unit shall be of identical manufacture
and model as the Replaced Unit and the condition of such Replacement
Unit shall satisfy the provisions of this Lease, or (y) such Replacement
Unit shall have a utility, a fair market value, and an economic useful
life at least equal to those of the Replaced Unit immediately prior to
such substitution, assuming that the Replaced Unit was in the condition
and repair required to be maintained by the terms of this Lease, and, if
the Equipment Purchase Price for the Replaced Unit was greater than
$500,000, Lessee shall have provided to Lessor and each Participant, at
Lessee's expense, an Appraisal or other documentation satisfactory to
Lessor and each Participant in their sole and absolute discretion with
respect to the determination of such utility, Fair Market Value and
economic useful life of the Replacement Unit or (z) such Replacement
Unit shall otherwise be acceptable to each of the Participants in its
respective sole and absolute discretion; and
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(ii) Lessee shall have satisfied each of the conditions set forth
in Sections 6.3(b), (c), (i) and (j) of the Participation Agreement, and
if the Unit of Equipment has an Equipment Purchase Price of greater than
$500,000 or is being replaced as a result of a Significant Event, then
also Sections 6.3(d), (e), (f), (g), and (h) of the Participation
Agreement in connection with the acquisition of Equipment on an
Equipment Acquisition Date with respect to the proposed replacement.
Upon the satisfaction of the conditions specified in this Section 15.1(j) and
the Replacement Unit becoming subject to this Lease and the security interest
created hereunder, Lessor shall execute and deliver to Lessee such instruments
(without representation or warranty) as may be reasonably required to release
the Replaced Unit from the terms and scope of this Lease, in such form as may be
reasonably requested by Lessee and in form and substance satisfactory to Lessor,
all at Lessee's sole cost and expense.
15.2 Environmental Matters. Upon Lessee's actual knowledge of the
presence of Hazardous Substances in any portion of any Site in concentrations
and conditions that constitute an Environmental Violation (i) Lessee shall
comply with all notification obligations required under Applicable Laws and
Regulations and (ii) if such condition would require in excess of $1,000,000 in
remediation costs, Lessee shall promptly notify Lessor in writing of such
condition. In the event of such Environmental Violation, Lessee shall, not later
than thirty (30) days after Lessee has actual knowledge of such Environmental
Violation, either (x) if such Environmental Violation is a Significant Event,
deliver to Lessor and Agent a Responsible Employee's Certificate and a Loss
Determination Notice certifying that such Environmental Violation is a
Significant Event with respect to the applicable Site pursuant to Section 16.1,
or (y) if such Environmental Violation is not a Significant Event, deliver to
Lessor and Agent a Loss Determination Notice certifying that such Environmental
Violation is not a Significant Event and at Lessee's sole cost and expense,
promptly and diligently commence any response, clean up, remedial or other
action required by any Governmental Authority having jurisdiction in respect
thereof. If such Environmental Violation is not a Significant Event, Lessee
shall, upon completion of remedial action by Lessee, cause to be prepared by an
environmental consultant reasonably acceptable to Lessor a report describing the
Environmental Violation and the actions taken by Lessee (or its agents) in
response to such Environmental Violation, and a statement by the consultant that
the Environmental Violation has been remedied in compliance in all material
respects with applicable Environmental Law. Each such Environmental Violation
shall be remedied prior to the Lease Expiration Date. Nothing in
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this Article XV shall reduce or limit Lessee's obligations under Sections 11.1,
11.2 or 11.3 of the Participation Agreement or the Unsecured Environmental
Indemnities.
15.3 Notice of Environmental Matters. Promptly, but in any event within
sixty (60) Business Days from the date Lessee has actual knowledge thereof,
Lessee shall provide to Lessor written notice of any pending or, to Lessee's
knowledge, threatened claim, action or proceeding involving any Environmental
Law or any Release on or in connection with any Site, which claim, action or
proceeding would require in excess of $1,000,000 in remediation costs. All such
notices shall describe in reasonable detail the nature of the claim, action or
proceeding and Lessee's proposed response thereto. In addition, Lessee shall
provide to Lessor, within sixty (60) Business Days of receipt, copies of all
material written communications with any Governmental Authority relating to any
Environmental Law in connection with any Site. Lessee shall also promptly
provide such detailed reports of any such material environmental claims as may
reasonably be requested by Lessor and Agent.
ARTICLE XVI
NOTIFICATION UPON CASUALTY, CONDEMNATION
OR ENVIRONMENTAL EVENT WITH RESPECT TO A SITE
16.1 Notification upon Certain Events. Lessee shall deliver a written
notice in the form described in Section 16.2(a) (a "Loss Determination Notice")
with respect to the affected Site, as specified in Sections 15.1(d) and 15.2,
together with, if such event constitutes a Significant Event, a Responsible
Employee's Certificate certifying that (A) in the case of a Condemnation, such
Condemnation is a Significant Condemnation, (B) in the case of a Casualty, such
Casualty is a Significant Casualty or (C) in the case of an Environmental
Violation, in the reasonable, good-faith judgment of Lessee, the cost to
remediate the same will cause the same to be a Significant Event.
16.2 Procedures. (a) A Loss Determination Notice shall contain: (i) a
certification as to whether or not a Casualty, Condemnation or Environmental
Violation constitutes a Significant Event and (ii) if a Significant Event is
specified, (A) notice of termination of this Lease with respect to the affected
Site on the next occurring Quarterly Payment Date (unless such Quarterly Payment
Date is within thirty (30) days of Lessor's receipt of such Loss Determination
Notice, in which event such notice shall specify the Quarterly Payment Date next
following such Quarterly Payment Date) (the "Termination Date"), such
termination to be effective upon Lessee's payment of the Property Balance and
the other amounts specified in (b) below for such Site; and (B) a
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binding and irrevocable agreement of Lessee to pay the Property Balance and the
other amounts specified in (b) below for such Site and purchase such Site on
such Termination Date.
(b) On each Termination Date (including, without limitation, any
Termination Date described in Section 15.1(d)), Lessee shall pay to Lessor the
Property Balance for the applicable Site, plus all other amounts owing in
respect of Rent for such Site (including Supplemental Rent) theretofore
accruing, and Lessor shall convey Lessor's interest in such Site or the
remaining portion thereof, if any, to Lessee all in accordance with Section
19.1, as well as any Net Proceeds with respect to the Casualty or Condemnation
giving rise to the termination of this Lease with respect to such Site
theretofore received by Lessor; provided that if a Lease Event of Default or
Lease Default shall have occurred and be continuing, the Excess Proceeds, if
any, shall be paid to Lessor.
ARTICLE XVII
LEASE EVENTS OF DEFAULT
17.1 Lease Events of Default. The occurrence of any one or more of the
following events (whether such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body) shall constitute a "Lease Event of
Default":
(a) Lessee shall fail to make payment of (i) any Basic Rent
within five (5) days after the same has become due and payable or (ii)
any Purchase Option Price, Property Balance or AMAT Recourse Amount,
including, without limitation, amounts due pursuant to Articles XV and
XVI or Sections 20.1, 20.2, 20.3, 22.1 or 22.2 after the same has become
due and payable;
(b) Lessee shall fail to make payment of any Supplemental Rent
(other than Supplemental Rent referred to in clause (a) of this Section)
due and payable within thirty (30) days after receipt of notice thereof;
(c) Lessee shall (i) fail to maintain insurance as required by
Article XIV of this Lease, provided, that so long as the required
insurance coverage remains in place and there is a downgrade in the
rating of an insurer who at the time of obtaining the insurance complied
with such requirements, a default shall not arise hereunder if within
thirty (30) days of the earlier of notice or the actual
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knowledge of a Responsible Officer of Lessee of such downgrade, Lessee
provides replacement coverage complying with Article XIV, or (ii) breach
or fail to comply with Sections 9.2, 9.3 and 9.12 of the Participation
Agreement;
(d) any representation or warranty set forth in this Lease or in
any other Operative Document or in any document entered into in
connection herewith or therewith or in any document, certificate or
financial or other statement delivered in connection herewith or
therewith shall be false or inaccurate in any material respect;
(e) Lessee shall fail to observe or perform any term, covenant or
condition of Lessee under this Lease, the Participation Agreement or any
other Operative Document to which it is a party other than those
described in Section 17.1(a), (b), (c) or (d) hereof, and such failure
shall remain uncured for a period of thirty-five (35) days after receipt
of written notice thereof; provided, however, that as to any breach by
Lessee or failure of Lessee to perform its obligations, if such failure
is (1) capable of being cured, (2) cannot be cured within thirty-five
(35) days, and (3) Lessee is at all times diligently and in good faith
pursuing the cure thereof, then the cure period for such failures shall
be extended for the period necessary for an additional fifty-five (55)
days;
(f) Lessee shall (i) admit in writing its inability to pay its
debts generally as they become due, (ii) file a petition under the
United States bankruptcy laws or any other applicable insolvency law or
statute of the United States of America or any State or Commonwealth
thereof, (iii) make a general assignment for the benefit of its
creditors, (iv) consent to the appointment of a receiver of itself or
the whole or any substantial part of its property, (v) fail to cause the
discharge of any custodian, trustee or receiver appointed for Lessee or
the whole or a substantial part of its property within sixty (60) days,
after such appointment, (vi) file a petition or answer seeking or
consenting to reorganization under the United States bankruptcy laws or
any other applicable insolvency law or statute of the United States of
America or any State or Commonwealth thereof, or (vii) take corporate
action for the purposes of effectuating any of the foregoing.
(g) a Construction Agency Agreement Event of Default
or Loan Event of Default shall have occurred and be
continuing;
(h) insolvency proceedings or a petition under the
United States bankruptcy laws or any other applicable
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insolvency law or statute of the United States of America or any State
or Commonwealth thereof shall be filed against Lessee and not dismissed
within sixty (60) days from the date of its filing, or a court of
competent jurisdiction shall enter an order or decree appointing,
without the consent of Lessee, a receiver of Lessee or the whole or a
substantial part of its property, and such order or decree shall not be
vacated or set aside within sixty (60) days from the date of the entry
thereof;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination
of the foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $10,000,000;
(j) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against
Lessee or any of its Subsidiaries and such judgment or judgments remain
undischarged, unbonded or unstayed for a period (during which execution
shall not be effectively stayed) of thirty (30) days; provided, that the
aggregate of all such judgments exceeds $10,000,000;
(k) (i) any Operative Document shall (except in accordance with
its terms or with the written consent of Agent), in whole or in part,
terminate, cease to be the legally valid, binding and enforceable
obligation of Lessee in accordance with its terms; (ii) except as
otherwise permitted under the Operative Documents, any Lien granted
pursuant to any Operative Document shall, in whole or in part, cease to
be a perfected first priority security interest (other than Permitted
Liens), provided however, that with respect to any Lien which fails to
be so effective or perfected, Lessee shall have the earlier of thirty
(30) days from its knowledge of such condition or receipt of
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notice thereof to cure such failure; or (iii) Lessee or any of its
Affiliates shall, directly or indirectly, contest in any manner in any
court the effectiveness, validity, binding nature or enforceability of
any of the Security Documents or any Lien granted under any of the
Operative Documents;
(l) there shall have occurred any event of default in the
performance or observance of any obligation or condition with respect to
any amount or amounts of indebtedness owing by or guaranteed by Lessee
or its Subsidiaries the effect of which is to cause or permit the
acceleration of the maturity of indebtedness (including the Credit
Agreement) having a principal amount in excess of $10,000,000
(individually or in the aggregate) prior to its expressed or stated
maturity or to permit the beneficiary of any such guarantee of
indebtedness having a principal amount in excess of $10,000,000
(individually or in the aggregate) to make a demand for payment or
performance thereunder.
17.2 Remedies. Upon the occurrence of any Lease Event of Default and at
any time thereafter and subject to Lessee's rights to purchase Leased Property
pursuant to Section 20.1, Lessor may, so long as such Lease Event of Default is
continuing, do one or more of the following as Lessor in its sole discretion
shall determine, without limiting any other right or remedy Lessor may have on
account of such Lease Event of Default (including, without limitation, the
obligation of Lessee to purchase the Leased Property as set forth in Section
20.3):
(a) Lessor may, by notice to Lessee, rescind or terminate this
Lease as to any or all of the Leased Property as of the date specified
in such notice subject to Lessee's rights to purchase Leased Property
pursuant to Section 20.1; however, (A) no reletting, reentry or taking
of possession of any Leased Property (or any portion thereof) by Lessor
will be construed as an election on Lessor's part to terminate this
Lease unless a written notice of such intention is given to Lessee, (B)
notwithstanding any reletting, reentry or taking of possession, Lessor
may at any time thereafter elect to terminate this Lease for a
continuing Lease Event of Default, and (C) no act or thing done by
Lessor or any of its agents, representatives or employees and no
agreement accepting a surrender of the Leased Property shall be valid
unless the same be made in writing and executed by Lessor;
(b) Lessor may (i) demand that Lessee, and Lessee shall upon the
written demand of Lessor, return any Leased Property demanded by Lessor
promptly to Lessor in the manner and condition required by, and
otherwise in accordance with all of the provisions of, Articles VIII, IX
and X hereof as
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if such Leased Property were being returned at the end of the applicable
Site Term or Equipment Term, and Lessor shall not be liable for the
reimbursement of Lessee for any costs and expenses incurred by Lessee in
connection therewith and (ii) without prejudice to any other remedy
which Lessor may have for possession of any Leased Property, and to the
extent and in the manner permitted by Applicable Laws and Regulations,
enter upon such Leased Property and take immediate possession of (to the
exclusion of Lessee or any other person) such Leased Property or any
part thereof and expel or remove Lessee and any other Person who may be
occupying such Leased Property, by summary proceedings or otherwise, all
without liability to Lessee for or by reason of such entry or taking of
possession, whether for the restoration of damage to property caused by
such taking or otherwise and, in addition to Lessor's other damages,
Lessee shall be responsible for all costs and expenses incurred by
Lessor and/or Agent in connection with any reletting, including, without
limitation, brokers' fees and all costs of any alterations or repairs
made by Lessor;
(c) Lessor may (i) sell all or any part of any one or more Sites
or Units of Equipment at public or private sale, as Lessor may
determine, free and clear of any rights of Lessee and without any duty
to account to Lessee with respect to such action or inaction or any
proceeds with respect thereto (except to the extent required by clause
(ii) below if Lessor shall elect to exercise its rights thereunder) in
which event Lessee's obligation to pay Basic Rent hereunder for periods
commencing after the date of such sale shall be terminated or
proportionately reduced, as the case may be; and (ii) if Lessor shall so
elect, demand that Lessee pay to Lessor, and Lessee shall pay to Lessor,
on the date of such sale, as liquidated damages for loss of a bargain
and not as a penalty (the parties agreeing that Lessor's actual damages
would be difficult to predict, but the aforementioned liquidated damages
represent a reasonable approximation of such amount) (in lieu of Basic
Rent due for periods commencing on or after the Payment Date coinciding
with such date of sale (or, if the sale date is not a Payment Date, the
Payment Date next preceding the date of such sale)), an amount equal to
(A) the excess, if any, of (1) the Lease Balance, calculated as of such
Payment Date (plus all Supplemental Rent, Site Rent and Equipment
Variable Rent due and unpaid to and including such Payment Date) over
(2) the net proceeds of such sale (that is, after deducting all costs
and expenses incurred by Lessor, Agent, and Participants incident to
such conveyance, including, without limitation, repossession costs,
brokerage commissions, prorations, transfer taxes, fees and expenses for
counsel, title insurance fees, survey costs, recording
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fees, and any repair or alteration costs); plus (B) interest at the
Overdue Rate on the foregoing amount from such Payment Date until the
date of payment;
(d) Lessor may, at its option, not terminate the Lease with
respect to any Leased Property, and continue to collect all Basic Rent,
Supplemental Rent, and all other amounts due Lessor (together with all
costs of collection) and enforce Lessee's obligations under this Lease
as and when the same become due, or are to be performed, and at the
option of Lessor, upon any abandonment of any Leased Property by Lessee
or re-entry of same by Lessor, Lessor may, in its sole and absolute
discretion, elect not to terminate this Lease and may make such
reasonable alterations and necessary repairs in order to relet such
Leased Property, and relet such Leased Property or any part thereof for
such term or terms (which may be for a long term extending beyond the
Term of this Lease) and at such rental or rentals and upon such other
terms and conditions as Lessor in its reasonable discretion may deem
advisable; and upon each such reletting all rentals actually received by
Lessor from such reletting shall be applied to Lessee's obligations
hereunder and the other Operative Documents in such order, proportion
and priority as Lessor may elect in Lessor's sole and absolute
discretion; it being agreed that under no circumstances shall Lessee
benefit from its default from any increase in market rents. If such
rentals received from such reletting during any period be less than the
Rent with respect to such Leased Property to be paid during that period
by Lessee hereunder, Lessee shall pay any deficiency, as calculated by
Lessor, to Lessor on the next Payment Date;
(e) Unless a Leased Property has been sold in its entirety,
Lessor may, whether or not Lessor shall have exercised or shall
thereafter at any time exercise any of its rights under paragraph (b),
(c) or (d) of this Section 17.2 with respect to such Leased Property or
portions thereof, demand, by written notice to Lessee specifying a date
(a "Termination Date") not earlier than thirty (30) days after the date
of such notice with respect to a Lease Event of Default arising under
Section 9.12 of the Participation Agreement or ten (10) days with
respect to any other Lease Event of Default, that Lessee purchase, on
such Termination Date, such Leased Property (or the remaining portion
thereof) in accordance with the provisions of Article XIX and Section
20.2;
(f) Lessor may exercise any other right or remedy that may be
available to it under Applicable Laws and Regulations, or proceed by
appropriate court action (legal or equitable) to enforce the terms
hereof or to recover
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damages for the breach hereof. Separate suits may be brought to collect
any such damages for any period(s), and such suits shall not in any
manner prejudice Lessor's right to collect any such damages for any
subsequent period(s), or Lessor may defer any such suit until after the
expiration of the Term, in which event such suit shall be deemed not to
have accrued until the expiration of the Term.
(g) Lessor may retain and apply against Lessor's damages all sums
which Lessor would, absent such Lease Event of Default, be required to
pay to, or turn over to, Lessee pursuant to the terms of this Lease; or
(h) Lessee acknowledges that sales for cash or on credit to a
wholesaler, retailer or user of any Equipment, at a public or private
auction are all commercially reasonable. Any notice required by law of
an intended disposition by Lessor shall be deemed reasonable and
properly given if given at least ten (10) days before such disposition.
17.3 Waiver of Certain Rights. If this Lease shall be terminated
pursuant to Section 17.2, Lessee waives, to the fullest extent permitted by law,
(a) any notice of re-entry or the institution of legal proceedings to obtain
re-entry or possession; (b) any right of redemption, re-entry or repossession;
(c) the benefit of any laws now or hereafter in force exempting property from
liability for rent or for debt or limiting Lessor with respect to the election
of remedies; and (d) any other rights which might otherwise limit or modify any
of Lessor's rights or remedies under this Article XVII.
17.4 Power of Sale and Foreclosure. Lessee hereby grants a Lien against
such Leased Property WITH POWER OF SALE, and that, upon the occurrence of any
Lease Event of Default, Lessor shall have the power and authority, to the extent
provided by law, after proper notice and lapse of such time as may be required
by law, to sell such Leased Property at the time and place of sale fixed by
Lessor in said notice of sale, either as a whole, or in separate lots or parcels
or items and in such order as Lessor may elect, at auction to the highest bidder
for cash in lawful money of the United States payable at the time of sale;
accordingly, it is acknowledged that A POWER OF SALE HAS BEEN GRANTED IN THIS
INSTRUMENT; A POWER OF SALE MAY ALLOW LESSOR TO TAKE THE APPLICABLE LEASED
PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT
BY LESSEE UNDER THIS INSTRUMENT, and (ii) upon the occurrence of a Lease Event
of Default, Lessor, in lieu of or in addition to exercising any power of sale
hereinabove given, may proceed by a suit or suits in equity or at law, whether
for a foreclosure hereunder, or for the sale of the Leased Property, or against
Lessee on a recourse
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basis for the Lease Balance and all accrued and unpaid interest on the Loans,
all accrued and unpaid Yield on the Investment Amounts, and all other amounts
owing by Lessee under the Operative Documents with respect to such Leased
Property, or for the specific performance of any covenant or agreement herein
contained or in aid of the execution of any power herein granted, or for the
appointment of a receiver pending any foreclosure hereunder or the sale of the
Leased Property, or for the enforcement of any other appropriate legal or
equitable remedy.
17.5 Remedies Cumulative. The remedies herein provided and in each
Lease Supplement shall be cumulative and in addition to (and not in limitation
of) any other rights or remedies available under Applicable Laws and
Regulations, equity or otherwise, including, without limitation, any mortgage
foreclosure remedies.
ARTICLE XVIII
RIGHT TO PERFORM FOR LESSEE
18.1 Lessor's Right to Cure Lessee's Lease Defaults. Lessor, without
waiving or releasing any obligation or Lease Event of Default, may (but shall be
under no obligation to) remedy any Lease Default or Lease Event of Default for
the account and at the sole cost and expense of Lessee, including the failure by
Lessee to maintain the insurance required by Article XIV, and may, to the
fullest extent permitted by law, and notwithstanding any right of quiet
enjoyment in favor of Lessee or any other person, enter upon any Site or
location where Units of Equipment are maintained for such purpose and take all
such action thereon as may be necessary or appropriate therefor. No such entry
shall be deemed an eviction of Lessee. All reasonable out-of-pocket costs and
expenses so incurred (including fees and expenses of counsel), together with
interest thereon at the Overdue Rate from the date on which such sums or
expenses are paid by Lessor, shall be paid by Lessee to Lessor on demand.
ARTICLE XIX
PROCEDURES FOR TRANSFER OF PROPERTIES
19.1 Conveyance of Leased Property; Exercise of Purchase Option or
Obligation. (a) Subject to Article XX, in connection with any termination of
this Lease or any Lease Supplement with respect to any Leased Property pursuant
to the terms of Section 15.1 or Article XVI, or in connection with Lessee's
exercise of its Purchase Option or Expiration Date Purchase Obligation, upon the
date on which this Lease is to terminate with respect to the applicable Leased
Property or upon the Site Expiration Date or
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Equipment Pool Expiration Date, as the case may be, with respect to the
applicable Leased Property, and upon tender by Lessee of the amounts set forth
in Sections 15.1, 16.2(b), 20.1, 20.2 or 20.3, as applicable:
(i) Lessor shall execute and deliver to Lessee (or to Lessee's
designee) at Lessee's sole cost and expense an assignment of Lessor's
right, title and interest in the applicable Leased Property (which shall
include an assignment of all of Lessor's right, title and interest in
and to any Net Proceeds not previously received by Lessor), in each case
in recordable form (with respect to any Site) and otherwise in
conformity with local custom and free and clear of the Lien of the
applicable Mortgage and any Lessor Liens; and
(ii) the applicable Leased Property shall be conveyed to Lessee
"AS IS" and in its then present physical condition.
(b) If Lessee properly exercises the Remarketing Option with respect to
any Leased Property then Lessee shall, upon consummation of any sale, and at its
sole cost and expense, transfer possession of the applicable Leased Property to
the independent purchaser(s) thereof, in each case by surrendering the same into
the possession of Lessor or such purchaser(s), as the case may be, free and
clear of all Liens other than Lessor Liens and the lien of the applicable
Mortgage, in good condition (as modified by Modifications permitted by this
Lease), ordinary wear and tear excepted, and in compliance with Applicable Laws
and Regulations. As a condition to Lessee's rights hereunder, Lessee shall
obtain all necessary governmental consents and approvals and make all
governmental filings required by Lessee or Lessor in connection with any third
party sale. Lessee shall, on and within a reasonable time before and up to one
year after the Site Expiration Date or Equipment Expiration Date with respect to
such Leased Property, cooperate reasonably with Lessor and the independent
purchaser(s) of such Leased Property in order to facilitate the purchase by such
purchaser(s) of such Leased Property, which cooperation shall include the
following, all of which Lessee shall do on or before the Site Expiration Date or
Equipment Expiration Date, as the case may be, or as soon thereafter as is
reasonably practicable: providing all books and records regarding the
maintenance and ownership of such Leased Property and all know-how, data and
technical information relating thereto, providing a current copy of the Plans
and Specifications for any Sites subject to such Remarketing Option, granting or
assigning all licenses necessary for the operation and maintenance of such
Leased Property and cooperating reasonably in seeking and obtaining all
necessary Governmental
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Action. The obligations of Lessee under this paragraph shall survive the
expiration or termination of this Lease.
ARTICLE XX
PURCHASE OPTION
20.1 Purchase Option. (a) Provided that Lessee shall not have given
notice of its intention to exercise the Remarketing Option with respect to any
Equipment Pool or Site which it desires to purchase, and without limitation of
Lessee's purchase obligation pursuant to Sections 20.2 or 20.3 and subject to
the limitations herein, Lessee shall at any time have the option exercisable by
giving Lessor irrevocable written notice (the "Purchase Notice") of Lessee's
election to exercise such option to purchase one or more (including all) Sites
or Equipment Groups (or, subject to the limitations set forth in clause (b)
below, with respect to a Site, a portion thereof) on the date specified in such
Purchase Notice at a price equal to the Property Balance (or, in the case of a
purchase of a portion of a Site pursuant to clause (b) below, the purchase price
paid by a third party for the portion of the Site as provided for in Subsection
20.1(b)(ix) below) with respect to such Site or Equipment Group (or, in the case
of all Leased Property, the Lease Balance) (the "Purchase Option Price") plus
all other amounts then due and payable in respect of Rent for such Leased
Property (including Supplemental Rent) theretofore accruing; provided, however,
that Lessee shall only be permitted to purchase an Equipment Group (unless
Lessee purchases the entire related Equipment Pool) if, after taking into
account such purchase, the aggregate Property Balance of the Units of Equipment
then remaining subject to this Lease equals or exceeds the Required Percentage
Amount.
(b) In addition to Lessee's option to purchase one or more Sites as
provided above, Lessee shall also have the option to purchase a portion of a
Site upon satisfaction of the following conditions: (i) Lessee shall deliver to
Lessor, Agent and Participants an Appraisal setting forth the Fair Market Value
(as separate and independent pieces of property) of the portion being purchased
by Lessee as of the date of purchase and the remaining portion as of the
applicable Site Expiration Date, (ii) the purchase price for such portion of a
Site shall be equal to or greater than the Fair Market Value of such portion
determined in such Appraisal, (iii) the sum of the purchase price of the portion
being purchased by Lessee and the Fair Market Value as determined in such
Appraisal of the remaining portion shall not be less than seventy-five percent
(75%) of the Site Balance for such Site, (iv) the portion of the Site being
purchased by Lessee and the remaining portion shall each constitute a legal
parcel under applicable subdivision laws, (v) the remaining portion of
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the Site shall not be dependant upon the portion being sold for services,
utilities, parking or access unless perpetual easements have been granted for
the benefit of the remaining portion of the Site in form satisfactory to Lessor
and Agent and otherwise in accordance with applicable subdivision and zoning
laws and regulations, (vi) any improvements situated on the remaining portion of
the Site shall be situated entirely on the remaining portion of the Site and no
portion of the improvements situated on the remaining portion of the Site shall
be situated on the portion of the Site being purchased by Lessee, (vii) Lessee
shall deliver to Lessor, Agent and Participants a Title Policy complying with
the requirements of Section 6.2(d) of the Participation Agreement in an amount
equal to the Fair Market Value of the remaining portion as determined in the
Appraisal, with such endorsements as reasonably requested by Agent, including
endorsements with respect to the subdivision map act and zoning laws and
regulations, (viii) Lessee shall execute and deliver such modifications,
amendments or supplements to the documents delivered on any Advance Date
relating to the Site pursuant to Section 6.2 of the Participation Agreement as
reasonably requested by Agent, (ix) Lessee shall have entered into a written
agreement (a copy of which shall be given to Lessor and Agent prior to a
purchase or sale of any portion of the Site) with an unrelated third party to
sell to such third party the portion Lessee has elected to purchase hereunder
and there shall not exist any understanding, agreement or arrangement whereby
Lessee or any of its Affiliates agrees to repurchase or lease back such portion
of the Site, which sale shall be consummated concurrently with Lessee's purchase
hereunder (and Lessee may direct Lessor to deliver a deed directly to such third
party) and the Gross Proceeds from the sale to the unrelated third party of the
portion of the Site so sold less the amount, if any, Lessee may elect to retain
from such Gross Proceeds (such amount not to exceed the Withheld Amount for such
Site) shall be paid to Agent and (x) Lessee shall not enter into an agreement
with respect to retaining or regarding any interest in such portion purchased
within six (6) months following such sale to the third party.
(c) Lessee shall deliver the Purchase Notice to Lessor (x) if no Lease
Event of Default exists, not more than one hundred eighty (180) days and not
less than thirty (30) days prior to such purchase or (y) if a Lease Event of
Default (other than a Lease Event of Default relating to the payment of Rent)
exists, not more than thirty (30) days after the commencement of such Lease
Event of Default (unless waived by Lessor) and not less than ten (10) days prior
to such purchase or (z) if a Lease Event of Default in the payment of Rent
exists (unless waived by Lessor), not more than ten (10) days after the
commencement of such Lease Event of Default and not less than five (5) days
prior to such purchase; provided that Lessee may not deliver a Purchase
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Notice or exercise the Purchase Option if there exists a Lease Event or Default
under Section 17.1(f) or (h). If Lessee exercises its option to purchase any
Leased Property pursuant to this Section 20.1 (the "Purchase Option"), Lessor
shall transfer to Lessee all of Lessor's right, title and interest in and to
such Leased Property as of the date specified in the Purchase Notice upon
receipt of the Purchase Option Price and all Rent and other amounts then due and
payable under this Lease and any other Operative Document, in accordance with
Section 19.1(a). If a Lease Event of Default or Lease Default relates solely to
a specific Site or Equipment Group but not all Leased Property, the exercise of
such Purchase Option and the purchase of such Leased Property in accordance with
the requirements hereof shall be deemed to have cured such Lease Event of
Default or Lease Default to the extent such Lease Event of Default or Lease
Default is no longer continuing with respect to any Leased Property remaining
subject to this Lease or Lessee after the consummation of the purchase pursuant
to the exercise of such Purchase Option; provided, however, that at the time of
such purchase, if any Site other than an Existing Site is then subject to the
Lease, the exercise of such Purchase Option shall not cause the aggregate Lease
Balance of the Leased Property then remaining subject to this Lease to decline
below the Required Percentage Amount.
20.2 Expiration Date Purchase Obligation. With respect to any Site or
Equipment Pool, unless (a) Lessee shall have properly exercised the Purchase
Option pursuant to Section 20.1 and purchased such Site or Equipment Pool
pursuant thereto, or (b) Lessee shall have properly exercised the Remarketing
Option and shall have fulfilled all of the conditions of Sections 22.1 and 22.3,
in the case of such Site, or Sections 22.2 and 22.3, in the case of such
Equipment Pool, and Lessor shall have sold its interest in such Site or
Equipment Pool pursuant thereto, then, subject to the terms, conditions and
provisions set forth in this Article XX, and in accordance with the terms of
Section 19.1(a), Lessee shall pay to Lessor on the Site Expiration Date the Site
Balance plus all accrued and unpaid interest on the Loans, all accrued and
unpaid Yield on the Investment Amounts, and all other amounts owing by Lessee
under the Operative Documents with respect to such Site, in the case of any such
Site, or on the Equipment Pool Expiration Date the aggregate Equipment Group
Balances for the Equipment Groups constituting such Equipment Pool plus all
accrued and unpaid interest on the Loans, all accrued and unpaid Yield on the
Investment Amounts, and all other amounts owing by Lessee under the Operative
Documents with respect to such Equipment Groups, in the case of such Equipment
Pool, and Lessor shall convey to Lessee, on such Site Expiration Date or
Equipment Pool Expiration Date, as applicable, all of Lessor's interest in such
Site or Equipment Pool.
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20.3 Acceleration of Purchase Obligation. Lessee shall be obligated to
purchase for an amount equal to the Lease Balance plus all accrued and unpaid
interest on the Loans, all accrued and unpaid Yield on the Investment Amounts,
and all other amounts owing by Lessee under the Operative Documents, Lessor's
interest in all of the Leased Property (notwithstanding any prior election to
exercise its Purchase Option pursuant to Section 20.1) (i) automatically and
without notice upon the occurrence of any Lease Event of Default specified in
clause (g) or (h) of Section 17.1 and (ii) as provided for at Section 17.2(e),
immediately upon written demand of Lessor upon the occurrence and continuance of
any other Lease Event of Default.
ARTICLE XXI
RIGHT TO RENEW
21.1 Site Renewal. Subject to the conditions set forth herein, Lessee
may, by written notice to Lessor, each Participant and Agent given not earlier
than one hundred eighty (180) days and not later than ninety (90) days prior to
the then current Site Expiration Date with respect to a Site, request (a "Site
Renewal Request") that the Site Term be extended as to such Site to the date
requested by Lessee which is not later than five (5) years after such Site
Expiration Date (the "Site Renewal Option"). Such renewal shall be subject to
and conditioned upon the following:
(a) on both the date of the Site Renewal Request and the date
that such renewal becomes effective, no Lease Default or Lease Event of
Default shall have occurred and be continuing, and Lessee shall be
deemed to have represented the same to Lessor;
(b) Lessee shall not have exercised the Site Remarketing Option
with respect to any Site or, on or after the fifth anniversary of the
Document Closing Date, the Equipment Remarketing Option with respect to
any Equipment Pool;
(c) the Maturity Date shall have been extended pursuant to
Section 2.2(e) of the Loan Agreement such that the Site Renewal Term for
such Site will expire on or before the extended Maturity Date;
(d) Lessor and Agent shall have obtained at Lessee's sole cost
and expense an appraisal performed by an independent appraisal company
chosen by Agent and acceptable to Lessee, not to be unreasonably
withheld, and indicating the Fair Market Value of such Site on the date
of such
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appraisal and at the end of the Site Renewal Term, which Fair Market
Value at the end of the Site Renewal Term shall equal or exceed 75% of
the Site Balance with respect to such Site; and
(e) If the Site is a Construction Site, the Construction
Completion Date shall have occurred as to such Construction Site.
21.2 Equipment Renewal. Subject to the conditions set forth herein,
Lessee may, with respect to all but not less than all of the Equipment Groups
constituting an Equipment Pool, by written notice to Lessor, each Participant
and Agent given not earlier than one hundred eighty (180) days and not later
than ninety (90) days prior to the Original Equipment Pool Expiration Date for
such Equipment Pool, request (an "Equipment Renewal Request") that the Equipment
Term for such Equipment Groups be extended to the date which is twelve (12)
months after such Original Equipment Pool Expiration Date (the "Equipment
Renewal Option"). Such renewal shall be subject to and conditioned upon the
following:
(a) on both the date of the Equipment Renewal Request and the
date that such renewal becomes effective, no Lease Default or Lease
Event of Default shall have occurred and be continuing, and Lessee shall
be deemed to have represented the same to Lessor;
(b) Lessee shall not have exercised any Remarketing
Option; and
(c) the Equipment Renewal Term for the Equipment Groups
constituting such Equipment Pool shall expire on or before the Maturity
Date as in effect as of the date such renewal becomes effective.
(d) Lessor and Agent shall have received from Lessee
documentation demonstrating to Agent that all of the Equipment in such
Equipment Group has (i) a remaining useful life as of the date of such
renewal and (ii) a Fair Market Value as of the date of such renewal and
the end of such renewal period which is sufficient, in the reasonable
judgment of Lessor and Agent, to support such additional twelve (12)
month renewal.
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ARTICLE XXII
REMARKETING
22.1 Option to Remarket Sites. Subject to the fulfillment of each of
the conditions set forth in this Article XXII (other than Section 22.2), Lessee
shall have the option (the "Site Remarketing Option") to market a Site subject
to a Lease Supplement during the Site Remarketing Period related to such Site
and sell such Site on the related Site Expiration Date.
Lessee's effective exercise and consummation of the Site Remarketing
Option with respect to such Site shall be subject to the due and timely
fulfillment of each of the following provisions:
(a) Satisfaction of the conditions set forth at Section 22.3,
including the payment to Agent of the AMAT Recourse Amount pursuant to
Section 22.3(h) and the Gross Proceeds pursuant to Section 22.3(i).
(b) Not later than ninety (90) days prior to such Site Expiration
Date, Lessee shall deliver to Lessor an Environmental Audit for such
Site. Such Environmental Audit shall be dated as of a date not earlier
than the first day of such Site Remarketing Period and shall be prepared
by an environmental consultant selected by Lessor in Lessor's reasonable
discretion and shall contain conclusions reasonably satisfactory to
Lessor as to the environmental status of such Site. If any such
Environmental Audit indicates any exceptions, Lessee shall have also
delivered a Phase Two environmental assessment by such environmental
consultant at least sixty (60) days prior to such Site Expiration Date
showing the completion of the remediation of such exceptions in
compliance with Applicable Laws and Regulations, except that any such
exception that existed on, and was disclosed in the Environmental Audit
delivered prior to, the related Site Acquisition Date and for which a
long-term remediation program complying with Applicable Laws and
Regulations (and providing for remediation beyond the Site Expiration
Date) was in place on the Site Acquisition Date, will not require
completion of remediation prior to such Site Expiration Date so long as
the Person or Persons responsible for such remediation are in compliance
with such long-term remediation program on the Site Expiration Date.
(c) If such Site is a Construction Site, not later than one day
prior to Lessor's receipt of the Site Remarketing Notice, the
Construction Completion Date shall have occurred as to such Construction
Site.
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(d) If such Site is a 25% Property, then:
(i) If the Land Proceeds exceed the sum of the Land
Balance with respect to such Site as of such Site Expiration Date
and the Prior Shortfalls, if any, as of such Site Expiration
Date, then the portion of the Land Proceeds in excess thereof
shall be paid to Lessee on such Site Expiration Date. If the Land
Proceeds are less than the Land Balance with respect to such Site
as of such Site Expiration Date, Lessee shall pay to Agent, as
Supplemental Rent, on such Site Expiration Date, in addition to
the Land Proceeds, an additional amount equal to the amount that
the Land Balance exceeds the Land Proceeds.
(ii) If the sum of the Improvements Proceeds and the AMAT
Recourse Amount paid by Lessee with respect to such Site exceeds
the sum of the Improvements Balance with respect to such Site as
of such Site Expiration Date and the Prior Shortfalls, if any, as
of such Site Expiration Date (without duplication of any Prior
Shortfalls satisfied by clause (i) above), then the excess shall
be paid to Lessee on such date. If the sum of the Improvements
Proceeds and the AMAT Recourse Amount paid by Lessee with respect
to such Site is less than the sum of the Improvements Balance
with respect to such Site as of such Site Expiration Date and
such Prior Shortfalls, Lessee also shall pay to Agent, as
Supplemental Rent, on such Site Expiration Date, in addition to
the Improvements Proceeds and any other amounts payable under
this Section 22.1, an additional recourse payment equal to the
lesser of (i) such deficiency and (ii) the Excess Gross Proceeds.
(e) If such Site is not a 25% Property, then: If the Gross
Proceeds from the sale of such Site and the AMAT Recourse Amount paid by
Lessee with respect to such Site exceed the sum of the Site Balance with
respect to such Site as of such Site Expiration Date and the Prior
Shortfalls as of such Site Expiration Date, then the excess shall be
paid to Lessee on such Site Expiration Date. If the sum of the Gross
Proceeds and the AMAT Recourse Amount paid by Lessee with respect to
such Site is less than the Site Balance with respect to such Site on
such Site Expiration Date, then Lessee also shall pay to Agent on such
Site Expiration Date, in addition to the Gross Proceeds and any other
amounts payable under this Section 22.1, an additional recourse payment
equal to the lesser of (i) such deficiency and (ii) the Excess Gross
Proceeds.
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If any of the foregoing provisions shall not be fulfilled as of the
dates set forth above with respect to such Site, or such Site is not purchased
on the Site Expiration Date, then Lessor shall declare by written notice to
Lessee the Site Remarketing Option to be null and void (whether or not it has
been theretofore exercised by Lessee) as to such Site, in which event all of
Lessee's rights with respect to such Site under this Section 22.1 shall
immediately terminate and Lessee shall be obligated to purchase such Site
pursuant to Section 20.2 on such Site Expiration Date. Except as expressly set
forth herein, Lessee shall have no right, power or authority to bind Lessor in
connection with any proposed sale of such Site.
22.2 Option to Remarket the Equipment. Subject to the fulfillment of
each of the conditions set forth in this Section 22.2, Lessee shall have the
option (the "Equipment Pool Remarketing Option") with respect to each Equipment
Pool to market during the related Equipment Remarketing Period not less than all
of the Equipment constituting such Equipment Pool and sell such Equipment on the
related Equipment Pool Expiration Date.
Lessee's effective exercise and consummation of the Equipment Pool
Remarketing Option with respect to such Equipment Pool shall be subject to the
due and timely fulfillment of each of the following provisions:
(a) Satisfaction of the conditions set forth at Section 22.3,
including the payment to Agent of the AMAT Recourse Amount pursuant to
Section 22.3(h) and the Gross Proceeds pursuant to Section 22.3(i).
(b) If the sum of the Gross Proceeds from the sale of the
Equipment constituting such Equipment Pool plus the AMAT Recourse Amount
paid by Lessee with respect to such Equipment Pool exceeds the sum of
(A) the aggregate Equipment Group Balances of the Equipment Groups
constituting such Equipment Pool as of the related Equipment Pool
Expiration Date and (B) the Prior Shortfalls, if any, as of such
Equipment Pool Expiration Date, then the excess shall be paid to Lessee
on such Equipment Pool Expiration Date. If the sum of the Gross Proceeds
and the AMAT Recourse Amount with respect to such Equipment Pool is less
than the aggregate Equipment Group Balances of the Equipment Groups
constituting such Equipment Pool on the related Equipment Pool
Expiration Date and such Prior Shortfalls, then Lessee also shall pay to
Agent on or prior to such Equipment Pool Expiration Date, as
Supplemental Rent, in addition to such Gross Proceeds and any other
amounts payable pursuant to this Section 22.2, an additional
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recourse amount equal to the lesser of (i) such deficiency and (ii) the
Excess Gross Proceeds.
If any of the foregoing provisions shall not be fulfilled as of the
dates set forth above with respect to an Equipment Pool, or all of the Equipment
constituting such Equipment Pool is not purchased as aforesaid, then Lessor
shall declare by written notice to Lessee the Equipment Pool Remarketing Option
to be null and void (whether or not it has been theretofore exercised by Lessee)
as to such Equipment Pool, in which event all of Lessee's rights with respect to
the Equipment constituting such Equipment Pool under this Section 22.2 shall
immediately terminate and Lessee shall be obligated to purchase all of the
Equipment constituting such Equipment Pool pursuant to Section 20.2 on the
related Equipment Pool Expiration Date. Except as expressly set forth herein,
Lessee shall have no right, power or authority to bind Lessor in connection with
any proposed sale of any Equipment.
22.3 Conditions to and Requirements of Remarketing Options. Lessee's
effective exercise and consummation of a Remarketing Option with respect to a
Site or an Equipment Pool (for purposes of Sections 22.1 and 22.2, the "Subject
Property") shall be subject to the due and timely fulfillment of each of the
following conditions and requirements as of the dates set forth below:
(a) Not earlier than three hundred sixty (360) or later than one
hundred eighty (180) days prior to the Applicable Expiration Date,
Lessee shall give to Lessor written notice of Lessee's exercise of its
Remarketing Option with respect to the Subject Property, which exercise
shall be irrevocable (the "Remarketing Notice"). If Lessee fails to give
Lessor the Remarketing Notice prior to such date, Lessee shall have no
right to exercise such Remarketing Option.
(b) On the date Lessor receives the Remarketing Notice and during
the applicable Remarketing Period, no Lease Event of Default or Lease
Default shall exist.
(c) All subleases with respect to the Subject Property shall have
been terminated prior to Lessor's receipt of the Remarketing Notice and
Lessee shall not enter into any additional subleases with respect to the
Subject Property during the Remarketing Period.
(d) Lessee shall have completed in all material respects all
Modifications (in the case of a Site) and restoration, repair and
rebuilding of the Subject Property pursuant to Sections 11.1 and 15.1
(as the case may be), in
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the case of a Site, or pursuant to Sections 11.2 and 15.1, in the case
of the Equipment, and shall have fulfilled in all material respects all
of the conditions and requirements in connection therewith pursuant to
such Sections, in each case by the date on which Lessor receives the
Remarketing Notice (time being of the essence), regardless of whether
the same shall be within Lessee's control. Lessee shall have also paid
the cost of all Modifications (in the case of a Site), restoration,
repair and rebuilding commenced or to be commenced prior to the Site
Expiration Date or the Equipment Pool Expiration Date, as applicable,
relating to the Subject Property. Lessee shall not have been excused
pursuant to Section 13.1 from complying with any Applicable Laws and
Regulations that involved the extension of the ultimate imposition of
such Applicable Laws and Regulations beyond the Site Expiration Date or
the Equipment Pool Expiration Date, as the case may be, with respect to
the Subject Property. Any Permitted Liens on the Subject Property shall
have been removed prior to the Site Expiration Date or the Equipment
Pool Expiration Date, as the case may be, relating to the Subject
Property.
(e) Lessee shall, at its sole cost and expense, deliver to Lessor
not less than thirty (30) days after the commencement of the Remarketing
Period for the Subject Property reports of engineers and other experts
as Lessor may reasonably request to determine if the Subject Property is
in the condition and state of repair and maintenance required by this
Lease. Lessee, at its sole cost and expense, shall cause the repair or
other remediation of any discrepancies between the actual condition of
the Subject Property and the condition required under this Lease, such
repair or remediation to be completed not later than the applicable Site
Expiration Date or Equipment Pool Expiration Date. Prior to entering
into any agreement to sell the Subject Property during the applicable
Remarketing Period, Lessee shall bond over with a reputable bonding
company that is financially sound and solvent and otherwise reasonably
appropriate considering the amount of the bond being provided by the
bonding company, for the benefit of the prospective purchaser of the
Subject Property, all Permitted Liens (other than Lessor Liens)
described in clauses (iii), (iv) and (vi) of the definition of
"Permitted Liens", including Permitted Liens that remain on the Subject
Property following the sale or return thereof, and such bonding shall
continue until all such Liens have been removed.
(f) During the applicable Remarketing Period, Lessee shall, as
nonexclusive agent for Lessor, use its best commercial efforts to sell
the Subject Property and will
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attempt to obtain the highest all-cash purchase price therefor and for
not less than the Fair Market Value thereof. Lessee, at its sole cost
and expense, will be responsible for hiring brokers and making the
Subject Property available for inspection by prospective purchasers.
Lessee shall promptly upon request permit inspection of any Subject
Property and any maintenance records relating to the Subject Property by
Lessor, any Participant and any potential purchasers, and shall
otherwise do all things necessary to sell and deliver possession of the
Subject Property to any purchaser. All such marketing of the Subject
Property shall be at Lessee's sole cost and expense and Lessee shall pay
as Supplemental Rent the costs and expenses of Lessor and each
Participant in connection with any such bidding and sale process
pursuant to this Article XXII as well as all costs and expenses incurred
by any Person (including a buyer or potential buyer) to place the
Subject Property in the condition required by Sections 9.1 and 10.1, all
of which shall be completed prior to the Site Expiration Date or the
Equipment Pool Expiration Date, as the case may be. None of the
foregoing costs or expenses shall be deducted from the Gross Proceeds.
Lessee shall allow Lessor and any potential qualified purchaser
reasonable access to the Subject Property for the purpose of inspecting
the same.
(g) Lessee shall submit all bids to Lessor, Agent and
Participants, and Lessor will have the right to review the same and the
right to submit any one or more bids. All bids shall be on an all-cash
basis unless Lessor, Agent and Participants shall otherwise agree in
their sole discretion. Lessee shall procure bids from one or more bona
fide prospective purchasers and shall deliver to Lessor, Agent and
Participants within five (5) Business Days of the receipt of any bid a
written certificate of Lessee specifying the terms and conditions of
such bid together with a binding written unconditional irrevocable offer
by such purchaser or purchasers offering such bid to purchase the
Subject Property. No such purchaser shall be Lessee, or any Subsidiary
or Affiliate of Lessee or any Person with whom Lessee or any Affiliate
of Lessee has an understanding or arrangement regarding the future
ownership or use of the Subject Property, but who may be Lessor or any
Participant or any Affiliate thereof, or any Person contacted by Lessor.
The written offer must specify the terms and conditions of such offer
and the closing date as of the Site Expiration Date or the Equipment
Pool Expiration Date, as applicable.
(h) Lessee shall pay to Agent on or prior to the Applicable
Expiration Date (or to such other Person as Agent shall notify to Lessee
in writing, or in the case of
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Supplemental Rent, to the Person entitled thereto) an amount equal to
the AMAT Recourse Amount with respect to the applicable Site or
Equipment Pool plus all Rent and all other amounts hereunder which have
accrued or will accrue prior to or as of the Applicable Expiration Date,
in the type of funds specified in Section 3.4 hereof.
(i) After Lessee shall have certified to Lessor all bids received
with respect to the Subject Property, Lessor or any Participant or any
Affiliate thereof, or any Person contacted by Lessor may submit a
further bid or bids to Lessee not later than thirty (30) Business Days
after Lessor's receipt of notice thereof. In the event that Lessor or
any Participant or any such Affiliate or any Person contacted by Lessor,
any Participant or any such Affiliate shall not have submitted further
bids to Lessee, and provided that no Lessee Default or Lessee Event of
Default shall have occurred and be continuing on the date of such sale
and no Significant Casualty, Significant Condemnation or Significant
Event shall have occurred with respect to the Subject Property, Lessee
shall consummate the sale of the Subject Property to the highest bidder
therefor on the Site Expiration Date or the Equipment Pool Expiration
Date, as the case may be, contemporaneously with Lessee's surrender of
the Subject Property pursuant to Section 19.1(b); provided, however,
that with respect to an Equipment Pool, in no event shall the bid to be
accepted be less than, nor shall such sale be consummated if such bid is
less than, the aggregate Tranche B Participant Balances attributable to
such Equipment Pool. Upon consummation of a sale, Lessee shall cause
such purchaser to pay in cash the Gross Proceeds directly to Agent. Upon
Agent's receipt of such Gross Proceeds, (i) Lessee shall transfer all of
Lessee's right, title and interest in the Subject Property to such
highest bidder, and (ii) subject to the prior or current payment by
Lessee of (x) the amounts set forth in paragraphs (d) or (e) of Section
22.1, in the case of a Site, or paragraph (b) of Section 22.2, in the
case of an Equipment Pool, and, in the case of either a Site or an
Equipment Pool, paragraph (k) of this Section 22.3 and Section 22.5
below and (y) all Rent and other amounts hereunder which have accrued or
will accrue prior to or as of the Site Expiration Date or the Equipment
Pool Expiration Date, as applicable (including all Supplemental Rent
arising as a result of such sale), Lessor shall transfer by quitclaim
deed, with a covenant against Lessor Liens, in form satisfactory to
Lessor and Lessee, Lessor's right, title and interest in and to the
Subject Property. Lessor shall not have any responsibility for procuring
any purchaser.
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(j) In connection with the sale of the Subject Property, Lessee
will provide to the purchaser all customary "seller's" indemnities,
representations and warranties regarding title, absence of Liens (except
Lessor Liens) and the condition of the Subject Property, including,
without limitation, an environmental indemnity. Lessee shall have
obtained, at its sole cost and expense, all required governmental and
regulatory consents and approvals and shall have made all filings as
required by Applicable Laws and Regulations in order to carry out and
complete the transfer of the Subject Property. As to Lessor, any such
sale shall be made on an "as is, with all faults" basis without
representation or warranty by Lessor other than the absence of Lessor
Liens. Any agreement as to such sale shall be made subject to Lessor's
rights hereunder.
(k) Lessee shall pay directly, and not from the Gross Proceeds,
all prorations, credits, costs and expenses of the sale of the Subject
Property, whether incurred by Lessor or Lessee, including without
limitation, the cost of all title insurance, surveys, environmental
reports, appraisals, transfer taxes, Lessor's reasonable attorneys'
fees, Lessee's attorneys' fees, broker's fees, commissions, escrow fees,
recording fees, and all applicable documentary and other transfer taxes.
22.4 Certain Obligations Continue. During the applicable Remarketing
Period, the obligation of Lessee to pay Rent with respect to the Subject
Property (including the installment of Basic Rent due on the Site Expiration
Date or the Equipment Pool Expiration Date, as the case may be) shall continue
undiminished until payment in full to Agent of the amounts set forth in Sections
22.1 and 22.3 above, with respect to a Site, or Sections 22.2 and 22.3 above,
with respect to an Equipment Pool, and all other amounts due to Lessor and Agent
with respect to the Subject Property under the Operative Documents. Lessor shall
have the right, but shall be under no duty, to solicit bids, to inquire into the
efforts of Lessee to obtain bids or otherwise to take action in connection with
any such sale, other than as expressly provided in this Article XXII.
22.5 Appraisal. If (a) with respect to a Site that is a 25% Property, at
the end of the Site Remarketing Period the sum of the Land Balance and the
Improvements Proceeds with respect to the sale of the Site plus the AMAT
Recourse Amount with respect to such Site will be less than the outstanding Site
Balance with respect to such Site as of the Site Expiration Date, or (b) with
respect to a Site that is not a 25% Property, at the end of the Site Remarketing
Period the sum of the Gross Proceeds with respect to the sale of the Site plus
the AMAT Recourse Amount with respect to such Site will be less than the
outstanding Site
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Balance with respect to such Site as of the Site Expiration Date, or (c) with
respect to an Equipment Pool, at the end of the Equipment Remarketing Period for
such Equipment Pool the sum of the Gross Proceeds with respect to the sale of
the Equipment constituting such Equipment Pool plus the aggregate AMAT Recourse
Amounts with respect to the Equipment constituting such Equipment Pool will be
less than the aggregate outstanding Equipment Group Balances with respect to the
Equipment Groups constituting such Equipment Pool as of the related Equipment
Pool Expiration Date, then, in the case of each of clauses (a), (b) and (c),
Lessor (upon direction from any Participant) shall engage one or more
appraisers, at Lessee's sole cost and expense, to determine (by appraisal
methods satisfactory to Required Participants) the Fair Market Value of such
Site on the Site Expiration Date or the Equipment constituting such Equipment
Pool on the Equipment Pool Expiration Date, as the case may be. Such Appraisal
may also be prepared for the purposes of the Excessive Use and End of Term
Indemnity set forth at Section 11.9 of the Participation Agreement. If the
Appraisal concludes that the Fair Market Value of the Site as of the Site
Expiration Date or the aggregate Fair Market Value of the Equipment constituting
such Equipment Pool as of the Equipment Pool Expiration Date, as the case may
be, is in excess of the Gross Proceeds received therefor, Lessee shall promptly
pay to Agent, as Supplemental Rent, an amount equal to (w) in the case of a Site
that is a 25% Property, the product of such excess multiplied by the
Improvements Percentage, which together with the Improvements Proceeds and the
AMAT Recourse Amount so paid to Agent shall not exceed the Improvements Balance
determined immediately before the application of the foregoing amounts, or (x)
in the case of a Site that is not a 25% Property, such excess, which, together
with the Gross Proceeds and the AMAT Recourse Amount with respect to such Site
so paid to Agent, shall not exceed the Site Balance with respect to such Site
determined immediately before the application of the foregoing amounts, or (y)
in the case of such Equipment Pool, such excess, which, together with Gross
Proceeds and the aggregate AMAT Recourse Amounts with respect to the Equipment
constituting such Equipment Pool so paid to Agent, shall not exceed the
aggregate Equipment Group Balances with respect to the Equipment constituting
such Equipment Pool determined immediately before the application of the
foregoing amounts.
ARTICLE XXIII
[RESERVED]
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ARTICLE XXIV
HOLDING OVER
24.1 Holding Over. If Lessee shall for any reason remain in possession
of a Leased Property after the expiration or earlier termination of this Lease
as to such Leased Property (unless such Leased Property is conveyed to Lessee),
such possession shall be as a tenancy at sufferance during which time Lessee
shall continue to pay Supplemental Rent that would be payable by Lessee
hereunder were the Lease then in full force and effect with respect to such
Leased Property and Lessee shall continue to pay Basic Rent at an annual rate
equal to the average rate of Basic Rent payable hereunder during the Term;
provided, however, that from and after the sixtieth (60th) day Lessee shall
remain in possession of such Leased Property after such expiration or earlier
termination, Lessee shall pay Basic Rent at an annual rate equal to the Overdue
Rate. Such Basic Rent shall be payable from time to time upon demand by Lessor.
During any period of tenancy at sufferance, Lessee shall, subject to the second
preceding sentence, be obligated to perform and observe all of the terms,
covenants and conditions of this Lease, but shall have no rights hereunder other
than the right, to the extent given by law to tenants at sufferance, to continue
its occupancy and use of such Leased Property. Nothing contained in this Article
XXIV shall constitute the consent, express or implied, of Lessor to the holding
over of Lessee after the expiration or earlier termination of this Lease as to
any Leased Property (unless such Leased Property is conveyed to Lessee), and
nothing contained herein shall be read or construed to relieve Lessee of its
obligations to purchase or remarket the Leased Property on the Lease Expiration
Date pursuant to Articles XX or XXII or as preventing Lessor from maintaining a
suit for possession of such Leased Property or exercising any other remedy
available to Lessor at law or in equity or hereunder.
ARTICLE XXV
RISK OF LOSS
25.1 Risk of Loss. During the Term the risk of loss of or decrease in
the enjoyment and beneficial use of such Leased Property as a result of the
damage or destruction thereof by fire, the elements, casualties, thefts, riots,
wars or otherwise is assumed by Lessee, and Lessor shall in no event be
answerable or accountable therefor.
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ARTICLE XXVI
OWNERSHIP OF THE LEASED PROPERTY
26.1 Nature of Transaction. It is the intention of the
parties that:
(a) the Overall Transaction constitutes an "operating lease"
pursuant to SFAS No. 13 from Lessor to Lessee for purposes of Lessee's financial
reporting;
(b) for federal, state and local income or franchise tax,
bankruptcy (including the substantive law upon which bankruptcy proceedings are
based), real estate and Uniform Commercial Code purposes:
(i) the Overall Transaction constitutes a loan by Participants to
Lessee and preserves beneficial ownership in the Leased Property in
Lessee, and obligations of Lessee to pay Site Rent and Equipment
Variable Rent shall be treated as payments of interest, and the payment
by Lessee of any amounts in respect of the Equipment Fixed Rent and the
Lease Balance shall be treated as repayments of principal;
(ii) this Lease grants a security interest and a mortgage lien,
as the case may be, in all of the Sites, the Equipment and the other
Collateral in favor of the Lessor; and
(iii) the Mortgage and the Security Agreement create liens and
security interests in the Collateral in favor of Agent for the benefit
of all Participants.
Accordingly, and notwithstanding any provision of this Participation Agreement
to the contrary, the parties hereto agree and declare that: (i) the transactions
contemplated by this Lease are intended to have a dual, rather than single,
form, as evidenced by the statements set forth in Sections 26.1(a) and (b)
above, and (ii) all references in this Participation Agreement to the "lease" of
the Leased Property which fail to reference such dual form do so as a matter of
convenience only and do not reflect the intent of the parties hereto as to the
true characterization of such arrangements. Notwithstanding the intentions of
the parties set forth above, Lessee acknowledges and agrees that none of Agent,
any Participant or their representatives have made any representations or
warranties concerning the tax, accounting or legal characteristics of the
Operative Documents and that Lessee has obtained and relied upon such tax,
accounting and legal advice from its own experts concerning the Operative
Documents as it deems appropriate.
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(c) Specifically, without limiting the generality of subsection (b) of
this Section 26.1, Lessor and Lessee intend and agree that with respect to the
nature of the transactions evidenced by this Lease in the context of the
exercise of remedies under the Operative Documents, including, without
limitation, in the case of any insolvency or receivership proceedings or a
petition under the United States bankruptcy laws or any other applicable
insolvency laws or statute of the United States of America or any State or
Commonwealth thereof affecting Lessee, Lessor or any Participant or any
enforcement or collection actions, the transactions evidenced by this Lease are
loans made by Lessor and the Lenders as unrelated third party lenders to Lessee
secured by the Leased Property (it being understood that Lessee hereby mortgages
and warrants and grants a security interest in the Leased Property (consisting
of a fee mortgage with respect to each Site transferred by the related Deed and
all Facilities thereon from time to time) to Lessor and Agent for the benefit of
all of the Participants to secure Lessee's obligations under the Lease and to
pay all amounts thereunder and under the other Operative Documents, including
Lessee's obligations under the Note Guarantee, effective in the case of each
Leased Property on the related Site Acquisition Date or Equipment Acquisition
Date, as the case may be).
(d) Specifically, without limiting the generality of subsection (b) of
this Section 26.1, Lessor and Lessee further intend and agree that, for the
purpose of securing Lessee's obligations for the repayment of the
above-described amounts, (i) this Lease shall also be deemed to be a security
agreement and financing statement within the meaning of Article 9 of the Uniform
Commercial Code and a real property mortgage or deed of trust; (ii) the
conveyance provided for in Article II shall be deemed to be a grant by Lessee to
Lessor and the Lenders of a mortgage lien and security interest in all of
Lessee's right, title and interest in and to the Leased Property and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, investments, securities or other property, whether in the form of cash,
investments, securities or other property (it being understood that Lessee
hereby mortgages and warrants and grants a security interest in all of the
Leased Property to Lessor and Agent for the benefit of all of the Participants
to secure Lessee's repayment of such amounts); (iii) the possession by Lessor,
Agent, or any of their agents of notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the Uniform Commercial Code; and
(iv) notifications to Persons holding such property, and acknowledgements,
receipts or confirmations from financial intermediaries, bankers or agents (as
applicable) of Lessee shall be deemed to have been given for the purpose of
perfecting such
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security interest under Applicable Laws and Regulations. Lessor and Lessee
shall, to the extent consistent with this Lease, take such actions and execute,
deliver, file and record such other documents, financing statements, mortgages
and deeds of trust as may be necessary to ensure that such security interest is
a perfected security interest of first priority under Applicable Laws and
Regulations and will be maintained as such throughout the Term.
ARTICLE XXVII
ESTOPPEL CERTIFICATES
27.1 Estoppel Certificates. At any time and from time to time upon not
less than twenty (20) days' prior request by Lessor or Lessee (the "Requesting
Party"), the other party (whichever party shall have received such request, the
"Certifying Party") shall furnish to the Requesting Party (but in the case of
Lessor, as Certifying Party, not more than four times per year unless required
to satisfy the requirements of any subleases and only to the extent that the
required information has been provided to Lessor by Lessee or Agent) a
certificate signed by an individual having the office of vice president or
higher in the Certifying Party certifying that this Lease is in full force and
effect (or that this Lease is in full force and effect as modified and setting
forth the modifications); the dates to which the Basic Rent and Supplemental
Rent have been paid; to the best knowledge of the signer of such certificate,
whether or not the Requesting Party is in default under any of its obligations
hereunder (and, if so, the nature of such alleged default); and such other
matters under this Lease as the Requesting Party may reasonably request. Any
such certificate furnished pursuant to this Article XXVII may be relied upon by
the Requesting Party, and any existing or prospective mortgagee, purchaser or
lender, and any accountant or auditor, of, from or to the Requesting Party (or
any Affiliate thereof).
ARTICLE XXVIII
INSPECTIONS; NO WAIVER
28.1 Right to Inspect. During the Term, Lessee shall upon reasonable
notice from Lessor (except that no notice shall be required if a Lease Default
or Lease Event of Default has occurred and is continuing), permit Lessor, Agent
and their respective authorized representatives to inspect any Leased Property
during normal business hours, provided that such inspections shall not
reasonably interfere with Lessee's business operations at the Leased Property
and shall be in accordance with
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Lessee's standard security procedures and the confidentiality restrictions set
forth in Section 13.21 of the Participation Agreement.
28.2 No Waiver. No failure by Lessor or Lessee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy upon a
default hereunder, and no acceptance of full or partial payment of Rent during
the continuance of any such default, shall constitute a waiver of any such
default or of any such term. To the fullest extent permitted by law, no waiver
of any default shall affect or alter this Lease, and this Lease shall continue
in full force and effect with respect to any other then existing or subsequent
default.
ARTICLE XXIX
ACCEPTANCE OF SURRENDER
29.1 Acceptance of Surrender. No surrender to Lessor of this Lease or of
all or any portion of any Leased Property or of any part thereof or of any
interest therein shall be valid or effective unless agreed to and accepted in
writing by Lessor and, prior to the payment or performance of all obligations
under the Loan Agreement, this Lease and the other Operative Documents and
termination of the Commitments, and no act by Lessor or Agent or any
representative or agent of Lessor or Agent, other than a written acceptance,
shall constitute an acceptance of any such surrender.
ARTICLE XXX
NO MERGER OF TITLE
30.1 No Merger of Title. There shall be no merger of this Lease or of
the leasehold estate created hereby by reason of the fact that the same Person
may acquire, own or hold, directly or indirectly, in whole or in part, (a) this
Lease or the leasehold estate created hereby or any interest in this Lease or
such leasehold estate, (b) the fee estate or leasehold title in any Leased
Property, except as may expressly be stated in a written instrument duly
executed and delivered by the appropriate Person or (c) a beneficial interest in
Lessor.
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ARTICLE XXXI
NOTICES
31.1 Notices. Unless otherwise specified herein, all notices, requests,
demands or other communications to or upon the respective parties hereto shall
be in writing and shall be delivered and shall be deemed to have been given in
accordance with Section 13.3 of the Participation Agreement.
ARTICLE XXXII
MISCELLANEOUS
32.1 Miscellaneous. Anything contained in this Lease to the contrary
notwithstanding, all claims against and liabilities of Lessee or Lessor arising
from events commencing prior to the expiration or earlier termination of this
Lease shall survive such expiration or earlier termination. If any term or
provision of this Lease or any application thereof shall be declared invalid or
unenforceable, the remainder of this Lease and any other application of such
term or provision shall not be affected thereby. If any right or option of
Lessee provided in this Lease, including any right or option described in
Articles XV, XVI, XX, XXI or XXII, would, in the absence of the limitation
imposed by this sentence, be invalid or unenforceable as being in violation of
the rule against perpetuities or any other rule of law relating to the vesting
of an interest in or the suspension of the power of alienation of property, then
such right or option shall be exercisable only during the period which shall end
twenty-one (21) years after the date of death of the last survivor of the
descendants of Franklin D. Roosevelt, the former President of the United States,
Henry Ford, the deceased automobile manufacturer, and John D. Rockefeller, the
founder of the Standard Oil Company, known to be alive on the date of the
execution, acknowledgement and delivery of this Lease.
32.2 Amendment; Complete Agreements. Neither this Lease nor any of the
terms hereof may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification shall be sought. This Lease, together with the other Operative
Documents, is intended by the parties as a final expression of their agreement
and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations and representations between the parties having been
incorporated herein and therein. No course of prior dealings between the parties
or their officers, employees, agents or Affiliates shall be relevant or
admissible to supplement, explain, or vary any of
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the terms of this Lease or any other Operative Document. Acceptance of, or
acquiescence in, a course of performance rendered under this or any prior
agreement between the parties or their Affiliates shall not be relevant or
admissible to determine the meaning of any of the terms of this Lease or any
other Operative Document. No representations, undertakings, or agreements have
been made or relied upon in the making of this Lease other than those
specifically set forth in the Operative Documents.
32.3 Successors and Assigns. All the terms and provisions of this Lease
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
32.4 Headings and Table of Contents. The headings and table of contents
in this Lease are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
32.5 Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
32.6 GOVERNING LAW. THIS LEASE HAS BEEN DELIVERED IN NEW YORK AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS LEASE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING
ALL OTHER CHOICE OF LAWS AND CONFLICTS RULES OF SUCH STATE, EXCEPT AS TO MATTERS
RELATING TO THE CREATION OF THE LEASEHOLD AND SUBLEASEHOLD ESTATES HEREUNDER AND
THE EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT THERETO, WHICH SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATES IN WHICH SUCH
ESTATES ARE LOCATED. WITHOUT LIMITING THE FOREGOING, IN THE EVENT THAT THIS
LEASE IS DEEMED TO CONSTITUTE A FINANCING, WHICH IS THE INTENTION OF THE
PARTIES, THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAWS AND
CONFLICTS RULES OF SUCH STATE, SHALL GOVERN THE CREATION, TERMS AND PROVISIONS
OF THE INDEBTEDNESS EVIDENCED HEREBY, BUT THE LIEN CREATED HEREBY AND THE
ENFORCEMENT OF SAID LIEN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATES IN WHICH SUCH ESTATES ARE LOCATED.
32.7 Liability of Lessor Limited. The parties hereto agree that CSL
shall have no personal liability whatsoever to Lessee or its respective
successors and assigns for any Claim based on or in respect of this Lease or any
of the other Operative Documents or arising in any way from the transactions
contemplated hereby or thereby; provided, however, that CSL shall be liable in
its individual capacity (a) for its own willful misconduct or gross
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negligence (or negligence in the handling of funds), (b) for liabilities that
may result from the incorrectness of any representation or warranty expressly
made by it in its individual capacity in Section 8.2 of the Participation
Agreement, (c) for any Tax based on or measured by any fees, commission or
compensation received by it for acting as Lessor as contemplated by the
Operative Documents, or (d) for any liabilities resulting solely from Lessor
Liens. It is understood and agreed that, except as provided in the preceding
proviso: (i) CSL shall have no personal liability under any of the Operative
Documents as a result of acting pursuant to and consistent with any of the
Operative Documents; (ii) all obligations of CSL to Lessee are solely
nonrecourse obligations except to the extent that it has received payment from
others; and (iii) all such personal liability of CSL is expressly waived and
released as a condition of, and as consideration for, the execution and delivery
of the Operative Documents by CSL.
32.8 Original Lease. The single executed original of this Lease marked
"THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on the signature page
thereof and containing the receipt of Agent therefor on or following the
signature page thereof shall be the Original Executed Counterpart of this Lease
(the "Original Executed Counterpart"). To the extent that this Lease constitutes
chattel paper, as such term is defined in the Uniform Commercial Code as in
effect in any applicable jurisdiction, no security interest in this Lease may be
created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
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IN WITNESS WHEREOF, the parties have caused this Lease be duly executed
and delivered as of the date first above written.
LESSEE:
APPLIED MATERIALS, INC.
By /s/ GERALD F. TAYLOR
------------------------------------
Name: Gerald F. Taylor
Title: Senior Vice President and
Chief Financial Officer
By /s/ NANCY H. HANDEL
------------------------------------
Name: Nancy H. Handel
Title: Vice President,
Corporate Finance and Treasurer
S-1 LEASE
65
LESSOR:
CREDIT SUISSE LEASING 92A, L.P.
BY: CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS NEW YORK BRANCH, AS
GENERAL PARTNER
By /s/ CARL WEATHERLEY-WHITE
------------------------------------
Name: Carl Weatherley-White
Title: Vice President
By /s/ MATT MOSER
------------------------------------
Name: Matt Moser
Title: Associate
S-2 LEASE