EXHIBIT 10U
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LEASE AGREEMENT
(Tax Retention Operating Lease)
Dated as of May 5, 1995
between
FIRST SECURITY BANK OF UTAH, N.A.,
not individually,
but solely as Owner Trustee
under the FM Trust 1995-1,
as Lessor
and
FRED MEYER, INC.,
as Lessee
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This Lease Agreement is subject to a security interest in favor of
NationsBank of Texas, N.A., as Administrative Agent (the "Agent") under a
Credit Agreement dated as of May 5, 1995, among First Security Bank of
Utah, N.A., not individually except as expressly stated therein, but solely
as Owner Trustee under the FM Trust 1995-1, the Lenders and the Agent, as
amended, modified, supplemented, restated and/or replaced from time to
time. This Lease Agreement has been executed in several counterparts. To
the extent, if any, that this Lease Agreement constitutes chattel paper (as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), the counterpart of this Lease Agreement
containing the receipt therefore executed by the Agent on the signature
page hereof shall be deemed the only original counterpart hereof.
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TABLE OF CONTEXTS
ARTICLE I ......................................................... 1
1.1 Definitions.............................................. 1
1.2 Interpretation........................................... 1
ARTICLE II ......................................................... 2
2.1 Property................................................. 2
2.2 Lease Term............................................... 2
2.3 Title.................................................... 2
2.4 Lease Supplements........................................ 2
ARTICLE III ......................................................... 2
3.1 Rent..................................................... 2
3.2 Payment of Basic Rent.................................... 3
3.3 Supplemental Rent........................................ 3
3.4 Performance on a Non-Business Day........................ 3
3.5 Rent Payment Provisions.................................. 4
ARTICLE IV ......................................................... 4
4.1 Utility Charges.......................................... 4
ARTICLE V ......................................................... 4
5.1 Quiet Enjoyment.......................................... 4
5.2 Transfers by Lessor; Lessor Liens........................ 4
ARTICLE VI ......................................................... 5
6.1 Net Lease................................................ 5
6.2 No Termination or Abatement.............................. 5
ARTICLE VII ......................................................... 6
7.1 Ownership of the Property................................ 6
ARTICLE VII ......................................................... 7
8.1 Condition of the Property................................ 7
8.2 Possession and Use of the Property....................... 7
ARTICLE IX ......................................................... 8
9.1 Compliance With Legal Requirements and
Insurance Requirements................................... 8
ARTICLE X ......................................................... 9
10.1 Maintenance and Repair; Return........................... 9
10.2 Environmental Inspection................................. 10
ARTICLE XI ......................................................... 10
11.1 Modifications, Substitutions and Replacements............ 10
ARTICLE XII ......................................................... 11
12.1 Warranty of Title........................................ 11
ARTICLE XIII ......................................................... 12
13.1 Permitted Contests Other Than in Respect
of Indemnities........................................... 12
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ARTICLE XIV ......................................................... 13
14.1 Public Liability and Workers' Compensation
Insurance................................................ 13
14.2 Hazard and Other Insurance............................... 13
14 3 Coverage................................................. 14
ARTICLE XV ......................................................... 15
15.1 Casualty and Condemnation................................ 15
15.2 Environmental Matter..................................... 17
15.3 Notice of Environmental Matters.......................... 17
ARTICLE XVI ......................................................... 18
16.1 Termination Upon Certain Events.......................... 18
16.2 Procedures............................................... 18
ARTICLE XVI ......................................................... 18
17.1 Lease Events of Default.................................. 18
17.2 Surrender of Possession.................................. 22
17.3 Reletting................................................ 22
17.4 Damages.................................................. 22
17.5 Power of Sale............................................ 23
17.6 Final Liquidated Damages................................. 23
17.7 Lessee's Purchase Option During Default.................. 24
17.8 Waiver of Certain Rights................................. 24
17.9 Assignment of Rights Under Contracts..................... 24
17.10 Remedies Cumulative...................................... 24
ARTICLE XVIII ......................................................... 25
18.1 Lessor's Right to Cure Lessee's Lease Defaults........... 25
ARTICLE XIX ......................................................... 25
19.1 Provisions Relating to Lessee's Exercise of
its Purchase Option...................................... 25
19.2 No Termination With Respect to Less than All
of a Property............................................ 25
ARTICLE XX ......................................................... 26
20.1 Purchase Options......................................... 26
20.2 Expiration Date Purchase or Sale Option.................. 27
20.3 Lessor's Transfer Option................................. 27
ARTICLE XXI ......................................................... 28
21.1 Renewal.................................................. 28
ARTICLE XXII ......................................................... 28
22.1 Sale Procedure........................................... 28
22.2 Application of Proceeds of Sale.......................... 30
22.3 (intentionally omitted).................................. 30
22.4 (intentionally omitted).................................. 30
22.5 Certain Obligations Continue............................. 31
22.6 Sale of Undeveloped Pads................................. 31
ARTICLE XXIII ......................................................... 31
23.1 Holding Over............................................. 31
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ARTICLE XXIV ......................................................... 32
24.1 Risk of Loss............................................. 32
ARTICLE XXV ......................................................... 32
25.1 Assignment............................................... 32
25.2 Subleases................................................ 32
ARTICLE XXVI ......................................................... 33
26.1 No Waiver................................................ 33
ARTICLE XXVII ......................................................... 33
27.1 Acceptance of Surrender.................................. 33
27.2 No Merger of Title....................................... 33
ARTICLE XXVIII......................................................... 34
28.1 Incorporation of Covenants............................... 34
ARTICLE XXIX ......................................................... 34
29.1 Notices.................................................. 34
ARTICLE XXX ......................................................... 35
30.1 Miscellaneous............................................ 35
30.2 Amendments and Modifications............................. 36
30.3 Successors and Assigns................................... 36
30.4 Headings and Table of Contents........................... 36
30.5 Counterparts............................................. 36
30.6 GOVERNING LAW............................................ 36
30.7 Calculation of Rent...................................... 36
30.8 Memoranda of Lease and Lease Supplements................. 36
30.9 Allocations between the Lenders and the Holder........... 36
30.10 Limitations on Recourse.................................. 37
30.11 Estoppel Certificates.................................... 37
30.12 Decision Making by Parties............................... 37
30.13 Limited Power of Attorney................................ 37
30.14 Submission To Jurisdiction; Waivers...................... 38
30.15 WAIVERS OF JURY TRIAL.................................... 39
EXHIBITS
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EXHIBIT A - Lease Supplement No. ___
EXHIBIT B-1 - Memorandum of Lease and Lease Supplement
EXHIBIT B-2 - Memorandum of Lease
LEASE AGREEMENT
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(Tax Retention Operating Lease Agreement)
THIS LEASE AGREEMENT (Tax Retention Operating Lease) (this
"Lease"), dated as of May 5, 1995, is between FIRST SECURITY BANK
OF UTAH, N.A., a national banking association, having its principal
office at 79 South Main Street, Salt Lake City, Utah 84111, not
individually, but solely as Owner Trustee under the FM Trust
1995-1, as lessor (the "Lessor"), and FRED MEYER, INC., a Delaware
corporation, having its principal place of business at 3800 S.E.
22nd Avenue, Portland, Oregon 97202, as lessee (the "Lessee")
W I T N E S S E T H:
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A. WHEREAS, subject to the terms and conditions of the
Agency Agreement, Lessor will (i) purchase or ground lease various
parcels of real property, some of which will have existing Improvements
thereon, from one or more third parties designated by Lessee and
(ii) fund the development, refurbishment and construction by the
Construction Agent of Improvements on such real property; and
B. WHEREAS, the Basic Term shall commence with respect to
each Property on the Basic Term Commencement Date described in
Section 2.2 hereof; and
C. WHEREAS, Lessor desires to lease to Lessee, and Lessee
desires to lease from Lessor, each Property;
NOW, THEREFORE, in consideration of the foregoing, and of
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1 Definitions. Capitalized terms used but not otherwise
defined in this Lease have the respective meanings specified in
Appendix A to the Participation Agreement of even date herewith (as
such may be amended, modified, supplemented, restated and/or
replaced from time to time, the "Participation Agreement") among
the Lessee, the Construction Agent, First Security Bank of Utah, N.A.,
not individually, except as expressly stated therein, as Owner
Trustee under the FM Trust 1995-1, the Holder, the Lenders and the
Agent.
1.2 Interpretation. The rules of usage set forth in Appendix
A to the Participation Agreement shall apply to this Lease.
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ARTICLE II
2.1 Property. Subject to the terms and conditions
hereinafter set forth and contained in the respective Lease Supplement
relating to each Property, Lessor hereby leases to Lessee and Lessee hereby
leases from Lessor, each Property.
2.2 Lease Term. The term of this Lease with respect to
each Property (the "Basic Term") shall begin upon the earliest to
occur of (i) the Completion Date for such Property, (ii) with
respect to Improved Property, the Property Closing Date with
respect to such Improved Property or (iii) if such Property is a
Construction Period Property as of the date of any Agency Agreement
Event of Default, the date of such Agency Agreement Event of
Default (in each case the "Basic Term Commencement Date") and shall end on
May 5, 2000 (the "Basic Term Expiration Date"), unless the Term is
extended or earlier terminated in accordance with the provisions of
this Lease.
2.3 Title. Each Property is leased to Lessee without any
representation or warranty, express or implied, by Lessor and
subject to the rights of parties in possession, the existing state
of title (including, without limitation, the Permitted Exceptions)
and all applicable Legal Requirements. Lessee shall in no event
have any recourse against Lessor for any defect in title to any
Property.
2.4 Lease Supplements. On or prior to the Completion Date
with respect to the Improvements to be constructed on Unimproved
Property and on or prior to the Property Closing Date with respect
to each acquisition of Improved Property, Lessee covenants and
agrees with Lessor that it will execute and deliver to Lessor a
Lease Supplement for the Property to be leased effective as of the
Basic Term Commencement Date for such Property (such Lease
Supplement to be in substantially the form of Exhibit A hereto),
and thereafter such Property shall be subject to the terms of this
Lease.
ARTICLE III
3.1 Rent.
(a) Lessee shall pay Basic Rent in arrears, on each
Payment Date, and on any date on which this Lease shall
terminate with respect to any or all Properties during the
Term; provided, however, with respect to each individual
Property Lessee shall have no obligation to pay Basic Rent
with respect to such Property until the Basic Term has commenced
with respect to such Property.
(b) Basic Rent shall be due and payable in lawful money
of the United States and shall be paid by wire transfer
(including Automated Clearing House transfer) of immediately
available funds on the due-date therefor to such
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account or accounts at such bank or banks as Lessor shall from
time to time direct.
(c) Lessee's inability or failure to take possession of
all or any portion of any Property when delivered by Lessor,
whether or not attributable to any act or omission of Lessee
or any act or omission of Lessor (other than an act or omission
that constitutes gross negligence or wilful misconduct of
Lessor), or for any other reason whatsoever, shall not delay
or otherwise affect Lessee's obligation to pay Rent for such
Property in accordance with the terms of this Lease.
3.2 Payment of Basic Rent. Basic Rent shall be paid
absolutely net to Lessor or its designee, so that this Lease shall
yield to Lessor the full amount thereof, without setoff, deduction
or reduction.
3.3 Supplemental Rent. Lessee shall pay to Lessor or its
designee or to the Person entitled thereto any and all Supplemental
Rent promptly as the same shall become due and payable, and if
Lessee fails to pay any Supplemental Rent, Lessor shall have all
rights, powers and remedies provided for herein or by law or equity
or otherwise in the case of nonpayment of Basic Rent. Lessee shall
pay to Lessor, as Supplemental Rent, among other things, on demand,
to the extent permitted by applicable Legal Requirements, (a) any
and all unpaid fees, charges, payments and other obligations (other
than the obligations of Lessor to pay the principal amount of the
Loans and the Holder Amount) due and owing by Lessor under the
Credit Agreement, under the Trust Agreement and/or under any other
Operative Agreement (including specifically without limitation any
amounts owing to the Lenders under Section 2.10 or Section 2.11 of
the Credit Agreement and any amounts owing to the Holder under
Section 3.8 or Section 3.9 of the Trust Agreement) and (b) 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
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. The
expiration or other termination of Lessee's obligations to pay
Basic Rent hereunder shall not limit or modify the obligations of Lessee
with respect to Supplemental Rent. Unless expressly provided
otherwise in this Lease, in the event of any failure on the part of
Lessee to pay and discharge any Supplemental Rent as and when due,
Lessee shall also promptly pay and discharge any fine, penalty,
interest or cost which may be assessed or added for nonpayment or
late payment of such Supplemental Rent, all of which shall also
constitute Supplemental Rent.
3.4 Performance on a Non-Business Day. If any payment is
required hereunder on a day that is not a Business Day, then such
payment shall be due on the next succeeding Business Day.
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3.5 Rent Payment Provisions. Lessee shall make payment of
all Basic Rent and Supplemental Rent when due regardless of whether
any of the Operative Agreements pursuant to which same is calculated
and is owing shall have been rejected, avoided or disavowed in any
bankruptcy or insolvency proceeding involving any of the parties to
any of the Operative Agreements. Such provisions of such Operative
Agreements and their related definitions are incorporated herein by
reference and shall survive any termination, amendment or rejection
of any such Operative Agreements.
ARTICLE IV
4.1 Utility Charges. 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 a Property and related real property during the Term. Lessee
shall be entitled to receive any credit or refund with respect to
any utility charge paid by Lessee. The amount of any credit or
refund received by Lessor on account of any utility charges paid by
Lessee, net of the reasonable costs and expenses incurred by Lessor
in obtaining such credit or refund, if any, shall be promptly paid
over to Lessee. All charges for utilities imposed with respect to
a Property for a billing period during which this Lease expires or
terminates shall be adjusted and prorated on a daily basis between
Lessor and Lessee, and each party shall pay or reimburse the other
for such party's pro rata share thereof.
ARTICLE V
5.1 Quiet Enjoyment. Subject to the rights of Lessor
contained in Sections 17.2, 17.3 and 20.3 and the other terms of
this Lease and so long as no Lease Event of Default shall have
occurred and be continuing, Lessee shall peaceably and quietly
have, hold and enjoy each Property for the applicable Term, free of any
claim or other action by Lessor or anyone rightfully claiming by,
through or under Lessor (other than Lessee) with respect to any
matters arising from and after the applicable Basic Term
Commencement Date.
5.2 Transfers by Lessor; Lessor Liens. So long as no Lease
Event of Default shall have occurred and be continuing, Lessor
shall not assign or convey any of its right, title or interest in and to
this Lease or the Properties, except for the Liens specifically
contemplated under the Operative Agreements or as otherwise
required by Law. In addition to the foregoing, Lessor agrees that it will,
in its individual capacity and at its own cost and expense (and
without any right of indemnity under the Operative Agreements)
promptly take such action as may be necessary to duly discharge and
satisfy in full any Lessor Liens in a manner consistent with the
requirements of Section 10.2(a) of the Participation Agreement.
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ARTICLE VI
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, counter- claim, or defense
with respect to the Rent, nor shall the obligations of Lessee
hereunder be affected (except as expressly herein permitted and by
performance of the obligations in connection therewith) by reason of:
(i) any damage to or destruction of any Property or any part thereof;
(ii) any taking of any Property or any part thereof or interest
therein by Condemnation or otherwise; (iii) any prohibition,
limitation, restriction or prevention of Lessee's use, occupancy or
enjoyment of any Property or any part thereof, or any interference
with such use, occupancy or enjoyment by any Person or for any other
reason; (iv) any title defect, Lien or any matter affecting title to
any Property; (v) any eviction by paramount title or otherwise; (vi)
any default by Lessor hereunder; (vii) any action for bankruptcy,
insolvency, reorganization, liquidation, dissolution or other
proceeding relating to or affecting Lessor or any Governmental
Authority; (viii) the impossibility or illegality of performance by
Lessor, Lessee or both; (ix) any action of any Governmental Authority;
(x) Lessee's acquisition of ownership of all or part of any Property;
(xi) breach of any warranty or representation with respect to any
Property or any Operative Agreement; (xii) any defect in the
condition, quality or fitness for use of any Property or any part
thereof; or (xiii) any other cause or circumstance whether similar or
dissimilar to the foregoing and whether or not Lessee shall have
notice or knowledge of any of the foregoing. The parties intend that
the obligations of Lessee hereunder shall be covenants, agreements and
obligations that are separate and independent from any obligations of
Lessor hereunder and shall continue unaffected unless such covenants,
agreements and obligations shall have been modified or terminated in
accordance with an express provision of this Lease. Lessor and Lessee
acknowledge and agree that the provisions of this Section 6.1 have
been specifically reviewed and subject to negotiation.
6.2 No Termination or Abatement. Lessee shall remain
obligated under this Lease in accordance with its terms and shall
not take any action to terminate, rescind or avoid this Lease,
notwithstanding any action for bankruptcy, insolvency,
reorganization, liquidation, dissolution, or other proceeding
affecting Lessor or any Governmental Authority, or any action with
respect to this Lease or any Operative Agreement which may be taken
by any trustee, receiver or liquidator of Lessor or any
Governmental Authority or by any court with respect to Lessor or any
Governmental Authority. Lessee hereby waives all right (i) to
terminate or surrender this Lease 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 any and all rights now or hereafter
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conferred by statute or otherwise to modify or to avoid strict
compliance with its obligations under this Lease. Notwithstanding
any such statute or otherwise, Lessee shall be bound by all of the
terms and conditions contained in this Lease.
ARTICLE VII
7.1 Ownership of the Property.
(a) Lessor and Lessee intend that (i) for financial
accounting purposes with respect to Lessee (A) this Lease will
be treated as an "operating lease" pursuant to Statement of
Financial Accounting Standards No. 13, as amended, (B) Lessor
will be treated as the owner and lessor of each Property and
(C) Lessee will be treated as the lessee of each Property, but
(ii) for federal and all state and local income tax purposes,
bankruptcy and commercial law and real estate purposes and all
other purposes (A) this Lease will be treated as a financing
arrangement, and (B) Lessee will be treated as the owner of
the Properties and will be entitled to all tax benefits
ordinarily available to owners of property similar to the
Properties for such tax purposes.
(b) To the extent this Lease is hereafter deemed to
constitute a finance lease and not a true lease, then and only
in such event, Lessor and Lessee intend and agree that, for
the purpose of securing Lessee's obligations hereunder, (i) this
Lease shall be deemed to be a security agreement and financing
statement within the meaning of Article 9 of the Uniform
Commercial Code respecting each of the Properties to the
extent such is personal property and an irrevocable grant and
conveyance of a lien and mortgage on each of the Properties to
the extent such is real property; (ii) the conveyance provided
for in Article II shall be deemed to be a grant by Lessee to
Lessor of, and Lessee hereby grants to Lessor, a lien on and
security interest, mortgage and deed of trust in all of
Lessee's right, title and interest in and to the Property and
all proceeds (including without limitation insurance 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, and an assignment of all rents, profits and income produced
by the Property; and (iii) 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 security interest, mortgage, deed of trust or
lien under applicable law. Lessor and Lessee shall, to the
extent consistent with this Lease, take such actions as may be
necessary (including without limitation the filing of Uniform
Commercial Code Financing Statements, Uniform Commercial Code
Fixture
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Filings and memoranda of this Lease and the various Lease
Supplements) to ensure that, if this Lease were deemed to
create a lien, mortgage, deed of trust or security interest in
the Property in accordance with this Section, such lien,
mortgage, deed of trust or security interest would be deemed
to be perfected and to have a first priority position under
applicable law and will be maintained as such throughout the
Term.
ARTICLE VIII
8.1 Condition of the Property. EXCEPT FOR THE COVENANTS OF
LESSOR SET FORTH IN ARTICLE V HEREOF, LESSEE ACKNOWLEDGES AND
AGREES THAT IT IS LEASING EACH PROPERTY "AS IS" WITHOUT REPRESENTATION,
WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY LESSOR 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 AN
ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW, (D) ALL
APPLICABLE LEGAL REQUIREMENTS AND (D) VIOLATIONS OF LEGAL
REQUIREMENTS WHICH MAY EXIST ON THE DATE HEREOF. NEITHER LESSOR
NOR THE AGENT NOR ANY LENDER NOR THE HOLDER 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,
MERCHANTABILITY OR FITNESS FOR USE OF ANY PROPERTY (OR ANY PART
THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY (OR
ANY PART THEREOF), AND NEITHER LESSOR NOR THE AGENT NOR ANY LENDER NOR
THE HOLDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT
THEREIN OR THE FAILURE OF ANY PROPERTY, OR ANY PART THEREOF, TO
COMPLY WITH ANY LEGAL REQUIREMENT. THE LESSEE HAS OR WILL HAVE
BEEN AFFORDED FULL OPPORTUNITY TO INSPECT THE PROPERTY AND THE
IMPROVEMENTS THEREIN, IS OR WILL BE (INSOFAR AS THE LESSOR, THE
AGENT, EACH LENDER AND EACH HOLDER ARE CONCERNED) SATISFIED WITH
THE RESULTS OF ITS INSPECTIONS AND IS ENTERING INTO THIS LEASE SOLELY
ON THE BASIS OF THE RESULTS OF ITS OWN INSPECTIONS, AND ALL RISKS
INCIDENT TO THE MATTERS DESCRIBED IN THE PRECEDING SENTENCE, AS
BETWEEN THE LESSOR, THE AGENT, THE LENDERS AND THE HOLDER, ON THE
ONE HAND, AND THE LESSEE, ON THE OTHER HAND, ARE TO BE BORNE BY
LESSEE.
8.2 Possession and Use of the Property.
(a) At all times during the Term with respect to each
Property, such Property shall not be used by Lessee for any
unlawful purpose. Lessee shall pay, or cause to be paid, all
charges and costs required in connection with the use of the
Properties as contemplated by this Lease. During the Term,
Lessee may cease operations at Properties having a Maximum
Property Cost not to exceed fifty percent (50%) of the Maximum
Property Cost of all Properties as of the Construction Period
Termination Date; provided, during such
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period of ceased operations Lessee shall comply with its
obligations under the Operative Agreements.
(b) The address of Lessee set forth in Section 29.1
herein or otherwise disclosed to Lessor by Lessee pursuant to
written notice hereunder no less than 30 days prior to the
effective date of such changed location is the chief place of
business and chief executive office of Lessee (as such terms
are used in Section 9-103(3) of the Uniform Commercial Code of
any applicable jurisdiction). Regarding a particular
Property, each Lease Supplement correctly identifies the initial
location of the related Equipment and Improvements and
contains an accurate legal description for the related parcel
of Land. Lessee has no other places of business where the
Equipment or Improvements will be located other than those
identified on the applicable Lease Supplement.
(c) Lessee will not attach or incorporate any item of
Equipment to or in any other item of equipment or personal
property or to or in any real property (except the Land
identified in the Lease Supplement in which such Equipment is
also described) in a manner that could give rise to the
assertion of any Lien on such item of Equipment by reason of
such attachment or the assertion of a claim that such item of
Equipment has become a fixture and is subject to a Lien in
favor of a third party that is prior to the Liens thereon
created by the Operative Agreements.
(d) With respect to each Property, subject to the terms
and conditions of this Lease and the Participation Agreement,
on each Basic Term Commencement Date Lessor and Lessee shall
execute and deliver a Lease Supplement containing, in regard
to such Property, an Equipment Schedule that has a complete
description of each item of Equipment, an Improvement Schedule
that has a complete description of each Improvement and a
legal description of the Land, to be leased hereunder as of such
date. Simultaneously therewith, such Equipment, Improvements
and Land shall be deemed to have been accepted by Lessee for
all purposes of this Lease and to be subject to this Lease.
ARTICLE IX
9.1 Compliance With Legal Requirements and Insurance
Requirements. Subject to the terms of Article XIII relating to
permitted contests, Lessee, at its sole cost and expense, shall (i)
comply with all material Legal Requirements (including without
limitation all Environmental Laws) relating to the Properties, and
all Insurance Requirements relating to the Properties, including
the use, development, construction, operation, maintenance, repair,
refurbishment and restoration thereof, whether or not compliance
therewith shall require structural or extraordinary changes in the
Improvements or
9
interfere with the use and enjoyment of the Properties, and (ii)
procure, maintain and comply with all material licenses, permits,
orders, approvals, consents and other authorizations required for
the construction, use, maintenance and operation of the Properties
and for the use, development, construction, operation, maintenance,
repair and restoration of the Improvements.
ARTICLE X
10.1 Maintenance and Repair; Return.
(a) Lessee, at its sole cost and expense, shall maintain
each Property in good condition, repair and working order
(ordinary wear and tear excepted) and make all necessary
repairs thereto, of every kind and nature whatsoever, whether
interior or exterior, ordinary or extraordinary, structural or
nonstructural or foreseen or unforeseen, in each case as
required by all Legal Requirements, Insurance Requirement and
manufacturer's specifications and standards and on a basis
consistent with the operation and maintenance of other similar
properties or equipment of Lessee as of the date hereof
subject, however, to the provisions of Article XV with respect
to Condemnation and Casualty.
(b) Lessee shall not use or locate any component of any
Property outside of any Approved State. Lessee shall not move
or relocate any component of any Property beyond the
boundaries of the Land (comprising part of the Property) described in
the applicable Lease Supplement.
(c) (Intentionally Omitted).
(d) Upon reasonable advance notice, Lessor and its
agents shall have the right to inspect each Property and all
maintenance records with respect thereto at any reasonable
time during normal business hours but shall not, in the absence of
a Lease Event of Default, materially disrupt the business of
Lessee.
(e) If, at any time, the aggregate appraised value of
Properties then subject to this Lease and with respect to
which operations have not ceased as described in Section 8.2(a) for
which the Lessor has received an Appraisal pursuant to the
terms of Section 5.6 of the Participation Agreement is less
than the lesser of $14,000,000 or the aggregate Property Cost
of all Properties then subject to this Lease and with respect
to which operations have not ceased as described in Section
8.2(a) (such lesser amount being hereafter referred to as the
"Base Amount"), then the Lessee will cause an additional
Appraisal or Appraisals to be immediately delivered to the
Lessor in an amount sufficient to cause such aggregate
appraised value to equal or exceed the Base Amount. In
addition, Lessee shall cause
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to be delivered to Lessor (at Lessee's sole expense) any
additional Appraisals (or reappraisals) as Lessor may request
if any one of Lessor, the Agent, any Lender or the Holder is
required pursuant to any applicable Legal Requirement to
obtain such an Appraisal (or reappraisal). Any such request by
Lessor will identify the Person and the applicable Legal Requirement
that necessitates the additional Appraisal (or reappraisal).
Lessee may cause the additional Appraisal (or reappraisal) to
be performed in a manner that satisfies the minimum
requirements of such Legal Requirement, including, without
limitation, if permitted by the Legal Requirement, providing a
supplement or date-down to a previously provided Appraisal.
The parties will cooperate on efforts to minimize the
frequency and costs of such additional Appraisals (or reappraisals).
(f) Lessor shall under no circumstances be required to
build any improvements on any Property, make any repairs,
replacements, alterations or renewals of any nature or
description to any Property, make any expenditure whatsoever
in connection with this Lease or maintain any Property in any
way. Lessor shall not be required to maintain, repair or
rebuild all or any part of any Property, and Lessee waives the
right to (i) require Lessor to maintain, repair, or rebuild
all or any part of any Property, or (ii) make repairs at the
expense of Lessor pursuant to any Legal Requirement, Insurance
Requirement, contract, agreement, covenants, condition or
restriction at any time in effect.
(g) Lessee shall, upon the expiration or earlier
termination of this Lease with respect to a Property, if
Lessee shall not have exercised its Purchase Option or Expiration
Date Purchase Option with respect to such Property, surrender
such Property to Lessor, or the third party purchaser, as the
case may be, subject to Lessee's obligations under this Lease
(including without limitation Sections 9.1, 10.1(a)-(f) ,
10.2, 11.1, 12.1, 22.1 and 23.1)
10.2 Environmental Inspection. If Lessee has not given notice
of exercise of its Expiration Date Purchase Option pursuant to
Section 20.2, then not more than 120 days nor less than 60 days
prior to the Expiration Date, Lessee shall, at its sole cost and
expense, provide to Lessor a report by a reputable environmental
consultant selected by Lessee, which report shall be in form and
substance satisfactory to Lessor.
ARTICLE XI
11.1 Modifications, Substitutions and Replacements.
(a) Lessee may, either at its sole cost and expense or
with the proceeds of Modification Advances made pursuant to
the terms of the Participation Agreement during the Construction
Period, at any time and from time to time
11
without the consent of Lessor make alterations, renovations,
improvements and additions to the Property or any part thereof
and substitutions and replacements there for (collectively,
"Modifications"); provided, that: (i) except for any
Modification required to be made pursuant to a Legal
Requirement, no Modification shall materially impair the
value, utility or useful life of the Property 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 with all Legal Requirements
(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 Property shall not be adversely affected;
(iv) to the extent required by Section 14.2(a), Lessee shall
maintain builders' risk insurance at all times when a
Modification is in progress; (v) subject to the terms of
Article XIII relating to permitted contests, Lessee shall pay
all costs and expenses and discharge any liens arising with
respect to the Modification; and (vi) such Modification shall
comply with the requirements of this Lease (including without
limitation Sections 8.2 and 10.1). All Modifications financed
by Lessor shall become the property of, and title thereto
shall immediately and without further action vest in, the Lessor,
when installed (and the Ground Lease shall expressly provide).
All other Modifications shall become the property of, and
title thereto shall immediately and without further action
vest in, Lessor, on surrender of the Property, the earlier
termination of this Lease or the occurrence of a Lease Default
or Lease Event of Default under Section 17.1(j) of this Lease.
(b) The construction process provided for in the Agency
Agreement is acknowledged by Lessor and the Agent to be
consistent with and in compliance with the terms and
provisions of this Article XI.
ARTICLE XII
12.1 Warranty of Title.
(a) Lessee 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 any Property or any
Modifications or any Lien, attachment, levy or claim with
respect to the Rent or with respect to any amounts held by the
Agent pursuant to the Credit Agreement, other than Permitted
Liens and Lessor Liens. Lessee shall promptly notify Lessor
in the event it receives actual knowledge that a Lien other than
a Permitted Lien or Lessor Lien has
12
occurred with respect to a Property, and Lessee represents and
warrants to, and covenants with, Lessor that the Liens in
favor of the Lessor created by the Operative Agreements are first
priority perfected liens subject only to Permitted Liens.
(b) Nothing contained in this Lease shall be construed
as constituting the consent or request of Lessor, expressed or
implied, to or for the performance by any contractor,
mechanic, laborer, materialman, supplier or vendor of any labor or
services or for the furnishing of any materials for any
construction, alteration, addition, repair or demolition of or
to any Property or any part thereof. NOTICE IS HEREBY GIVEN
THAT LESSOR IS NOT AND SHALL NOT BE LIABLE FOR ANY LABOR,
SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO LESSEE,
OR TO ANYONE HOLDING A PROPERTY OR ANY PART THEREOF THROUGH OR
UNDER LESSEE, AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY
SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT
THE INTEREST OF LESSOR IN AND TO ANY PROPERTY.
ARTICLE XIII
13.1 Permitted Contests Other Than in Respect of Indemnities.
Except to the extent otherwise provided for in Section 13 of the
Participation Agreement, Lessee, on its own or on Lessor's behalf
but at Lessee's sole cost and expense, may contest, by appropriate
administrative or judicial proceedings conducted in good faith and
with due diligence, the amount, validity or application, in whole
or in part, of any Legal Requirement, or utility charges payable
pursuant to Section 4.1 or any Lien, attachment, levy, encumbrance
or encroachment, and Lessor agrees not to pay, settle or otherwise
compromise any such item, provided that (a) Lessee provides to
Lessor such security or other assurances reasonably acceptable to
Lessor that Lessee can and will satisfy the Lien and comply with
the Legal Requirements in sufficient time to prevent any sale,
forfeiture or loss by reason of such non-payment or noncompliance,
(b) at no time during the permitted contest shall there be a risk
of the imposition of criminal liability or material civil liability
(in the case of a civil liability, unless Lessee provides to Lessor
such security or other assurances reasonably acceptable to Lessor
that Lessee can and will satisfy such liability) on Lessor, the
Holder, the Agent or any Lender for failure to comply therewith;
and (c) in the event that, at any time, there shall be a material
risk of extending the application of such item beyond the end of
the Term, then Lessee shall deliver to Lessor an Officer's
Certificate certifying as to the matters set forth in clauses (a)
and (b) of this Section 13.1. Lessor, at Lessee's sole cost and
expense, shall execute and deliver to Lessee such authorizations
and other documents as may reasonably be required in connection
with any such contest and, if reasonably requested by Lessee, shall
join as a party therein at Lessee's sole cost and expense.
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ARTICLE XIV
14.1 Public Liability and Workers' Compensation Insurance.
During the Term of each Property, 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 the Properties or the premises where
the Equipment is located and such other public liability coverages as
are ordinarily procured by Persons who own or operate similar
properties or equipment in similar businesses. Such insurance shall
be on terms and in amounts that are no less favorable than
insurance maintained by Lessee with respect to similar properties and
equipment that it owns and that are in accordance with normal
industry practice. The policies shall be endorsed to name Lessor,
the Holder, the Agent and the Lenders as additional insureds. The
policies shall also specifically provide that such policies shall
be considered primary insurance which shall apply to any loss or
claim before any contribution by any insurance which Lessor, the Holder,
the Agent or the Lenders may have in force. Lessee shall, in the
operation of the Properties, comply with the applicable workers'
compensation laws and protect Lessor, the Holder, the Agent and the
Lenders against any liability under such laws.
14.2 Hazard and Other Insurance.
(a) During the Term for each Property, Lessee shall
keep, or cause to be kept, such Property insured against loss or
damage by fire and other risks and shall maintain builders'
risk insurance during construction of any Improvements or
Modifications on terms and in amounts that are no less
favorable than insurance covering other similar properties
owned by Lessee and that are in accordance with normal
industry practice. The policies shall be endorsed to name Lessor, the
Holder, the Agent and the Lenders, to the extent of their
respective interests, as additional loss payees; provided, so
long as no Lease Event of Default exists, any loss payable
under the insurance policies required by this Section will be
paid to Lessee and Lessee will have the sole authority to
settle any such insurance claim without the need for prior
approval by any such additional loss payee.
(b) During the Term with respect to a Property the area
in which such Property is located is designated a "flood-prone"
area pursuant to the Flood Disaster Protection Act or 1973,
or any amendments or supplements thereto, then Lessee shall
comply with the National Flood Insurance Program as set forth
in the Flood Disaster Protection Act of 1973. In addition,
Lessee will fully comply with the requirements of the National
Flood Insurance Act of 1968 and the Flood Disaster Protection
Act of 1973, as each may be amended from time to time, and
with any other Legal Requirement, concerning flood insurance
to the extent that it apply to any such Property.
14
14.3 Coverage.
(a) As of the date of this Lease and annually
thereafter, Lessee shall furnish Lessor and the Agent with certificates
showing the insurance required under Sections 14.1 and 14.2 to
be in effect, naming Lessor, the Holder, the Agent and the
Lenders as additional insureds and loss payees and evidencing
the other requirements of this Article XIV. All such
insurance shall be at the cost and expense of Lessee. Such
certificates shall include a provision for thirty (30) days' advance
written notice by the insurer to Lessor and the Agent in the
event of cancellation or material alteration of such
insurance. If a Lease Event of Default has occurred and is
continuing and Lessor so requests, Lessee shall deliver to
Lessor copies of all insurance policies required by Sections
14.1 and 14.2.
(b) Lessee agrees that the insurance policy or policies
required by Sections 14.1, 14.2(a) and 14.2(b) shall include
an appropriate clause pursuant to which any such policy shall
provide that it will not be invalidated by any act or omission
of Lessee or to the extent Lessee waives, at any time, any or
all rights of recovery against any party for losses covered by
such policy. Lessee hereby waives any and all such rights
against the Lessor, the Holder, the Agent and the Lenders to
the extent of payments made to any such Person under any such
policy.
(c) Neither Lessor nor Lessee shall carry separate
insurance concurrent in kind or form or contributing in the
event of loss with any insurance required under this Article
XIV, except that Lessor may carry separate liability insurance
at Lessor's sole cost so long as (i) Lessee's insurance is
designated as primary and in no event excess or contributory
to any insurance Lessor may have in force which would apply to a
loss covered under Lessee's policy and (ii) each such
insurance policy will not cause Lessee's insurance required under this
Article XIV to be subject to a coinsurance exception of any
kind.
(d) Lessee shall pay as they become due all premiums for
the insurance required by Section 14.1 and Section 14.2, shall
renew or replace each policy prior to the expiration date
thereof or otherwise maintain the coverage required by such
Sections without any lapse in coverage.
(e) Any insurance required to be carried hereunder may
contain such deductibles and/or self insurance consistent with
industry standards and the then current practice of Lessee
with respect to its other properties similar to the Properties.
Any liability insurance required under Section 14.1 may be met
through "blanket" policies of insurance.
15
ARTICLE XV
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 Termination Notice), and prior to the occurrence
and continuation of a Lease Default or 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
under Sections 14.2(a) or (b) hereof to which Lessee or Lessor
may become entitled by reason of their respective interests in
a Property (i) if all or a portion of such Property is damaged
or destroyed in whole or in part by a Casualty or (ii) if the
use, access, occupancy, easement rights or title to such
Property or any part thereof is the subject of a Condemnation;
provided, however, if a Lease Default or Lease Event of
Default shall have occurred and be continuing such award,
compensation or insurance proceeds shall be paid directly to
Lessor or, if received by Lessee, shall be held in trust for Lessor,
and shall be paid over by Lessee to Lessor and held in accordance
with the terms of this paragraph (a). All amounts held by
Lessor hereunder on account of any award, compensation or
insurance proceeds either paid directly to Lessor or turned
over to Lessor shall be held as security for the performance
of Lessee's obligations hereunder for the duration of any
applicable cure period.
(b) Lessee may appear in any proceeding or action to
negotiate, prosecute, adjust or appeal any claim for any
award, compensation or insurance payment on account of any such
Casualty or Condemnation and shall pay all expenses thereof.
At Lessee's reasonable request, and at Lessee's sole cost and
expense, Lessor and the Agent shall participate in any such
proceeding, action, negotiation, prosecution or adjustment.
Lessor and Lessee agree that this Lease shall control the
rights of Lessor and Lessee in and to any such award,
compensation or insurance payment.
(c) If Lessee shall receive notice of a Casualty or a
possible Condemnation of a Property or any interest therein
where damage to the affected Property is estimated to equal or
exceed ten percent (10%) of the Property Cost of such
Property, Lessee shall give notice thereof to the Lessor and to the
Agent promptly after the receipt of such notice.
(d) In the event of a Casualty or a Condemnation
(regardless of whether notice thereof must be given pursuant
to paragraph (c)), this Lease shall terminate with respect to
the applicable Property in accordance with Section 16.1 if
Lessee, within sixty (60) days after such occurrence, delivers to
Lessor and the Agent a notice to such effect.
16
(e) If pursuant to this Section 15.1 this Lease shall
continue in full force and effect following a Casualty or
Condemnation with respect to the affected Property, Lessee
shall, at its sole cost and expense and using, if available,
the proceeds of any award, compensation or insurance with
respect to such Casualty or Condemnation (including, without
limitation, any such award, compensation or insurance which
has been received by the Agent and which should be turned over to
Lessee pursuant to the terms of the Operative Agreements),
promptly and diligently repair any damage to the applicable
Property caused by such Casualty or Condemnation in conformity
with the requirements of Sections 10.1 and 11.1, so as to
restore the applicable Property to substantially the same
condition, operation, function and value as existed immediately
prior to such Casualty or Condemnation. In such event, title
to the applicable Property shall remain with Lessor.
(f) In no event shall a Casualty or Condemnation with
respect to which this Lease remains in full force and effect
under this Section 15.1 affect Lessee's obligations to pay
Rent pursuant to Section 3.1.
(g) Notwithstanding anything to the contrary set forth
in Section 15.1(a) or Section 15.1(e), if during the Term with
respect to a Property a Casualty occurs with respect to such
Property or Lessee receives notice of a Condemnation with
respect to such Property, and following such Casualty or
Condemnation, Lessee is unable to use the remaining applicable
Property in substantially the same manner as the Property was
used prior to such Casualty or Condemnation and the applicable
Property cannot reasonably be restored, repaired or replaced
in a manner consistent with the requirements of this Lease by
the earlier to occur of the Expiration Date or the date nine (9)
months after the occurrence of such Casualty or Condemnation
(if such Casualty or Condemnation occurs during the Term), to
permit such use, then Lessee shall be required to exercise its
Purchase Option with respect to the applicable Property on the
next Payment Date (notwithstanding the limits on such exercise
contained in Section 20.1), and pay Lessor the Purchase Option
Price and any and all Rent then due and owing and all other
amounts then due and owing (including without limitation
amounts described in clause FIRST of Section 22.2); provided,
if any Lease Default or Lease Event of Default has occurred
and is continuing, Lessee shall also promptly (and in any event
within three (3) Business Days) pay Lessor any award,
compensation or insurance proceeds received on account of any
Casualty or Condemnation with respect to any Property.
Provided that no Lease Default or Lease Event of Default has
occurred and is continuing, any Excess Proceeds shall be paid
to Lessee. If a Lease Default has occurred and is continuing
and any Loans, Holder Advance or other amounts are owing with
respect thereto, then any Excess Proceeds (to the extent of
any such Loans, Holder
17
Advance or other amounts owing with respect thereto) shall be
paid to the Lessor.
15.2 Environmental Matters. Promptly upon Lessee's actual
knowledge of the presence of Hazardous Substances in any portion of
any Property or Properties in concentrations and conditions that
constitute an Environmental Violation and which, in the reasonable
opinion of Lessee, the cost to undertake any legally required
response, clean up, remedial or other action will or might result
in a cost to Lessee of more than $100,000, Lessee shall notify Lessor
in writing of such condition. In the event of any Environmental
Violation (regardless of whether notice thereof must be given),
Lessee shall, not later than thirty (30) days after Lessee has
actual knowledge of such Environmental Violation, either deliver to
Lessor a Termination Notice with respect to the applicable Property
or Properties pursuant to Section 16.1, if applicable, or, at
Lessee's sole cost and expense, promptly and diligently commence
any response, clean up, remedial or other action (including the
pursuit by Lessee of appropriate action against any off-site or third
party source for contamination, as appropriate) necessary to remove,
cleanup or remediate the Environmental Violation in accordance with
all Environmental Laws. If Lessee does not deliver a Termination
Notice with respect to such Property pursuant to Section 16.1,
Lessee shall, upon completion of remedial action by Lessee, cause
to be prepared by a reputable environmental consultant acceptable to
Lessor a report describing the Environmental Violation and the
actions taken by Lessee (or its agents) in response to such
Environmental Violation, and a statement by the consultant that the
Environmental Violation has been remedied in full compliance with
applicable Environmental Law. Not less than sixty (60) days prior
to any time that Lessee elects to cease operations with respect to
any Property in excess of that permitted by Section 8.2(a) hereof
or to remarket any Property pursuant to Section 20.2 hereof or any
other provision of any Operative Agreement, Lessee shall deliver a
Phase I environmental survey respecting such Property satisfactory
in form and substance to the Lessor.
15.3 Notice of Environmental Matters. Promptly, but in any
event within five (5) Business Days from the date Lessee has actual
knowledge thereof, Lessee shall provide to Lessor written notice of
any material pending or threatened claim, action or proceeding
involving any Environmental Law or any Release on or in connection
with any Property or Properties. All such notices shall describe
in reasonable detail the nature of the claim, action or proceeding
and Lessee's proposed response thereto. In addition, Lessee shall
provide to Lessor, within ten (10) Business Days of receipt, copies
of all material written communications with any Governmental
Authority relating to any Environmental Law in connection with any
Property. Lessee shall also promptly provide such detailed reports
of any such material environmental claims as may reasonably be
requested by Lessor.
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ARTICLE XVI
16.1 Termination Upon Certain Events. If any of the following
occur: (i) Lessee has delivered a notice pursuant to Section
15.1(d) that following the applicable Casualty or Condemnation this
Lease shall terminate with respect to the affected Property, or
(ii) Lessee has delivered notice pursuant to the second sentence of
Section 15.2 that, due to the occurrence of an Environmental
Violation, this Lease shall terminate with respect to the affected
Property, then Lessee shall be obligated to deliver, within thirty
(30) days of its receipt of notice of the applicable Condemnation
or the occurrence of the applicable Casualty or Environmental
Violation, a written notice to the Lessor in the form described in
Section 16.2(a) (a "Termination Notice") of the termination of this
Lease with respect to the applicable Property.
16.2 Procedures.
(a) A Termination Notice shall contain: (i) notice of
termination of this Lease with respect to the affected
Property on a Payment Date not more than sixty (60) days after
Lessor's receipt of such Termination Notice (the "Termination Date");
and (ii) a binding and irrevocable agreement of Lessee to pay
the Termination Value for the applicable Property, any and all
Rent then due and owing and all other amounts then due and
owing (including without limitation amounts described in
clause FIRST of Section 22.2) and purchase such Property on such
Termination Date.
(b) On each Termination Date, Lessee shall pay to Lessor
the Termination Value for the applicable Property, any and all
Rent then due and owing and all other amounts then due and
owing (including without limitation amounts described in
clause FIRST of Section 22.2) theretofore accruing, and Lessor shall
convey such Property or the remaining portion thereof, if any,
to Lessee (or Lessee's designee), 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 Property theretofore received by
Lessor; provided, that if a Lease Event of Default shall have
occurred and be continuing and any Loans or Holder Advance are
owing with respect thereto or under this Lease, then any
Excess Proceeds shall be paid to Lessor.
ARTICLE XVII
17.1 Lease Events of Default. If any one or more of the
following events (each a "Lease Event of Default") shall occur:
(a) Lessee shall fail to make payment of (i) any Basic
Rent (except as set forth in clause (ii)) within five (5) days
after the same has become due and payable or (ii) any
19
Purchase Option Price or Termination Value, on the date any
such payment is due, or any payment of Basic Rent or
Supplemental Rent due on the due date of any such payment of
Purchase Option Price or Termination Value, or any amount due
on the Expiration Date;
(b) Lessee shall fail to make payment of any
Supplemental Rent (other than Supplemental Rent referred to in Section
17.1(a) (ii)) due and payable within ten (10) Business Days
after receipt of notice thereof;
(c) Lessee shall fail to maintain insurance as required
by Article XIV of this Lease and such failure shall remain
uncured for a period of thirty (30) days after receipt of
written notice thereof;
(d) Lessee shall fail to observe or perform any term,
covenant or condition of Lessee under this Lease or any other
Operative Agreement to which Lessee is a party other than
those set forth in Sections 17.1(a), (b), (c) or (g) hereof, or any
representation or warranty made by Lessee set forth in this
Lease or in any other Operative Agreement or in any document
entered into in connection herewith or therewith or in any
document, certificate or financial or other statement
delivered in connection herewith or therewith shall be false or
inaccurate in any material way, and if such failure or
misrepresentation or breach of warranty is capable of being
cured, it shall remain uncured for a period of thirty (30)
days after receipt of written notice from Lessor thereof;
provided, if such failure or misrepresentation or breach of warranty is
capable of being cured but cannot be cured within such
thirty-day period, so long as Lessee is diligently pursuing
such cure, Lessee shall have an additional period, not
exceeding 60 days, within which to effect such cure;
(e) an Agency Agreement Event of Default shall have
occurred and be continuing;
(f) a failure by Lessee to pay any Imposition, in whole
or in part, or to observe any Legal Requirement, regarding any
Property imposed by any governmental entity or agency
thereunder, subject to Lessee's rights relating to permitted
contests under Section 13.1 and if such failure is capable of
being cured, it remains uncured for a period of thirty (30)
days after receipt of written notice from Lessor thereof;
provided, if such a failure is capable of being cured but
cannot be cured within such thirty-day period, so long as
Lessee is diligently pursuing such cure, Lessee shall have an
additional period, not exceeding 60 days, within which to
effect such cure;
(g) Lessee shall fail to observe or perform any term,
covenant or condition incorporated by reference herein
pursuant to Article XXVIII hereof and such failure shall
20
remain uncured for a period of thirty (30) days (or such
shorter or longer cure period subsequently available under the
1994 Credit Agreement with respect to an event of default
thereunder regarding the Incorporated Covenants) after receipt
of written notice from Lessor thereof;
(h) Any default shall occur under the terms applicable
to any Debt of Lessee or any Subsidiary of Lessee in an
aggregate amount (for all Debt so affected) exceeding $5,000,000 and
such default shall (a) consist of the failure to pay such Debt
when due (subject to any applicable grace period), whether by
acceleration or otherwise, or (b) accelerate the maturity of
such Debt or permit the holder or holders thereof, or any
trustee or agent for such holder or holders, to cause such
Debt to become due and payable prior to its expressed maturity;
(i) Any default shall occur in the payment when due of
any obligation of $5,000,000 or more of Lessee or any
Subsidiary of Lessee with respect to any material purchase or
lease of goods or services (except only to the extent that the
existence of any such default is being contested by Lessee or
such Subsidiary in good faith and by appropriate proceedings
and appropriate reserves have been made in respect of such
default), and continuance of such default for 30 days after
notice thereof from the Lessor;
(j) Lessee or any Material Subsidiary becomes insolvent
or generally fails to pay, or admits in writing its inability
or refusal to pay, debts as they become due; or Lessee or any
Material Subsidiary applies for, consents to, or acquiesces in
the appointment of a trustee, receiver or other custodian for
Lessee or such Material Subsidiary or any property thereof, or
makes a general assignment for the benefit of creditors; or,
in the absence of such application, consent or acquiescence, a
trustee, receiver or other custodian is appointed for Lessee
or any Material Subsidiary or for a substantial part of any
property of Lessee or any Material Subsidiary and is not
discharged within 60 days; or any bankruptcy, reorganization,
debt arrangement, or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution or
liquidation proceeding, is commenced in respect of Lessee or any Material
Subsidiary, and if such case or proceeding is not commenced by
Lessee or such Material Subsidiary, it is consented to or
acquiesced in by Lessee or such Material Subsidiary, or
remains for 60 days undismissed; or Lessee or any Material Subsidiary
takes any corporate action to authorize, or in furtherance of,
any of the foregoing;
(k) (i) Institution of any steps by Lessee or any other
Person to terminate a Pension Plan if as a result of such
termination Lessee could be required to make a contribution to
such Pension Plan, or could incur a liability or obligation to
such Pension Plan, in excess of
21
$5,000,000, or (ii) a contribution failure occurs with respect
to any Pension Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA;
(l) Lessee or any ERISA Affiliate shall make a complete
or partial withdrawal from a Multiemployer Plan and the plan
sponsor or such Multiemployer Plan shall notify such
withdrawing employer that such employer has incurred a
withdrawal liability in an annual amount exceeding $5,000,000,
unless and only for as long as such liability shall be
contested in good faith and such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have
been made therefor;
(m) Any money judgment, writ or warrant or attachment or
similar process involving in any case a final judgment in an
amount in excess of $5,000,000 shall be entered or filed
against Lessee or any Material Subsidiary or any of their
respective assets and shall remain unsatisfied, undischarged,
unvacated, unbonded or unstayed for a period of 60 days or in
any event later than five days prior to the date of any
proposed sale thereunder;
(n) Any Change in Control shall occur; or
(o) Any Operative Agreement to which Lessee or the
Construction Agent is a party shall cease to be enforceable
(other than in accordance with its terms) against such party
or such party shall claim in writing that such is the case.
then, in any such event, (i) all Construction Period Properties
shall automatically become Properties that are subject to the terms
of this Lease as more specifically provided in Section 2.2 and
thereafter all references hereunder to "Property" or "Properties"
and all obligations of the Lessee with respect to the Properties
(including specifically without limitation the obligations of the
Lessee contained in this Article XVII) shall be deemed to include
such Construction Period Properties, and (ii) Lessor may, in
addition to the other rights and remedies provided for in this
Article XVII and in Section 18.1, terminate this Lease by giving
Lessee five (5) days notice of such termination (provided that such
Event of Default is continuing at the end of such five-day period),
and this Lease shall terminate, and all rights of Lessee under this
Lease shall cease. Lessee shall, to the fullest extent permitted
by law, pay as Supplemental Rent all costs and expenses incurred by
or on behalf of Lessor, including without limitation reasonable fees
and expenses of counsel, as a result of any Lease Event of Default
hereunder. As used in this Lease, a "notice" of a Lease Default or
a Lease Event of Default shall mean a written notice to Lessee
pursuant to Section 29.1, which specifies (i) the Lease Default or
the Lease Event of Default and (ii) that it is intended as a notice
of a Lease Default or a Lease Event of Default.
22
17.2 Surrender of Possession. If a Lease Event of Default
shall have occurred and be continuing, and whether or not this
Lease shall have been terminated pursuant to Section 17.1, Lessee shall,
upon thirty (30) days written notice, surrender to Lessor
possession of the Properties. Lessor may enter upon and repossess the
Properties by such means as are available at law or in equity, and
may remove Lessee and all other Persons and any and all personal
property and Lessee's equipment and personalty and severable
Modifications from the Properties. Lessor shall have no liability
by reason of any such entry, repossession or removal performed in
accordance with applicable law. Upon the written demand of Lessor,
Lessee shall return the Properties promptly to Lessor, in the
manner and condition required by, and otherwise in accordance with the
provisions of, Section 22.1(c) hereof.
17.3 Reletting. If a Lease Event of Default shall have
occurred and be continuing, and whether or not this Lease shall
have been terminated pursuant to Section 17.1, Lessor may, but shall be
under no obligation to, relet any or all of the Properties, for the
account of Lessee or otherwise, for such term or terms (which may
be greater or less than the period which would otherwise have
constituted the balance of the Term) and on such conditions (which
may include concessions or free rent) and for such purposes as
Lessor may determine, and Lessor may collect, receive and retain
the rents resulting from such reletting. Lessor shall not be liable
to Lessee for any failure to relet any Property or for any failure to
collect any rent due upon such reletting.
17.4 Damages. Neither (a) the termination of this Lease as to
all or any of the Properties pursuant to Section 17.1; (b) the
repossession of all or any of the Properties; nor (c) the failure
of Lessor to relet all or any of the Properties, the reletting of all
or any portion thereof, nor the failure of Lessor to collect or
receive any rentals due upon any such reletting, shall relieve
Lessee of its liabilities and obligations hereunder, all of which
shall survive any such termination, repossession or reletting.
If any Lease Event of Default shall have occurred and be continuing
and notwithstanding any termination of this Lease pursuant to
Section 17.1, Lessee shall forthwith pay to Lessor all Rent and
other sums due and payable hereunder to and including the date of
such termination. Thereafter, on the days on which the Basic Rent
or Supplemental Rent, as applicable, are payable under this Lease
or would have been payable under this Lease if the same had not been
terminated pursuant to Section 17.1 and until the end of the Term
hereof or what would have been the Term in the absence of such
termination, Lessee shall pay Lessor, as current liquidated damages
(it being agreed that it would be impossible accurately to
determine actual damages) an amount equal to the Basic Rent and Supplemental
Rent that are payable under this Lease or would have been payable
by Lessee hereunder if this Lease had not been terminated pursuant to
Section 17.1, less the net proceeds, if any, which are actually
received by Lessor with respect to the period in question of any
23
reletting of any Property or any portion thereof; provided that
Lessee's obligation to make payments of Basic Rent and Supplemental
Rent under this Section 17.4 shall continue only so long as Lessor
shall not have received the amounts specified in Section 17.6. In
calculating the amount of such net proceeds from reletting, there
shall be deducted all of Lessor's, the Holder's, the Agent's and
any Lenders' reasonable expenses in connection therewith, including
repossession costs, brokerage or sales commissions, fees and
expenses for counsel and any necessary repair or alteration costs
and expenses incurred in preparation for such reletting. To the
extent Lessor receives any damages pursuant to this Section 17.4,
such amounts shall be regarded as amounts paid on account of Rent.
17.5 Power of Sale. Without limiting any other remedies set
forth in this Lease, in the event that a court of competent
jurisdiction rules that this Lease constitutes a mortgage, deed of
trust or other secured financing as is the intent of the parties,
then the Lessor and the Lessee agree that the Lessee has granted,
pursuant to Section 7.1(b) hereof and each Lease Supplement, a Lien
against the Properties WITH POWER OF SALE, and that, upon the
occurrence and during the continuance of any Lease Event of
Default, the Lessor shall have the power and authority, to the extent
provided by law, after prior notice and lapse of such time as may
be required by law, to foreclose its interest (or cause such interest
to be foreclosed) in all or any part of the Properties.
17.6 Final Liquidated Damages. If a Lease Event of Default
shall have occurred and be continuing, whether or not this Lease
shall have been terminated pursuant to Section 17.1 and whether or
not Lessor shall have collected any current liquidated damages
pursuant to Section 17.4, Lessor shall have the right to recover,
by demand to Lessee and at Lessor's election, and Lessee shall pay to
Lessor, as and for final liquidated damages, but exclusive of the
indemnities payable under Section 13 of the Participation
Agreement, and in lieu of all current liquidated damages beyond the date of
such demand (it being agreed that it would be impossible accurately
to determine actual damages) the sum of (a) the Termination Value
for all Properties remaining under this Lease, plus (b) all other
amounts owing in respect of Rent and Supplemental Rent theretofore
accruing under this Lease. Upon payment of the amount specified
pursuant to the first sentence of this Section 17.6, Lessee shall
be entitled to receive from Lessor, either at Lessee's request or
upon Lessor's election, in either case at Lessee's cost, a transfer and
assignment of Lessor's entire right, title and interest in and to
the Properties, the Improvements, Fixtures, Modifications and
Equipment. To effect such transfer and assignment, Lessor shall
execute, acknowledge (where required) and deliver to Lessee each of
the following: (i) a special or limited warranty Deed conveying
the Property (to the extent it is real property) to Lessee free and
clear of the Lien of this Lease, the Lien of the Credit Documents
and any Lessor Liens; (ii) a Bill of Sale conveying the Property
(to the extent it is personal property) to
24
Lessee free and clear of the Lien of this Lease, the Lien of the
Credit Documents and any Lessor Liens; (iii) any real estate tax
affidavit or other document required by law to be executed and
filed in order to record the Deed; and (iv) a FIRPTA affidavit. Subject
to the foregoing, the Properties shall be conveyed to Lessee (or
Lessee's designee) "AS IS" and in their then present physical
condition. If any statute or rule of law shall limit the amount of
such final liquidated damages to less than the amount agreed upon,
Lessor shall be entitled to the maximum amount allowable under such
statute or rule of law; provided, however, Lessee shall not be
entitled to receive an assignment of Lessor's interest in the
Properties, the Improvements, Fixtures, Modifications or Equipment
or documents unless Lessee shall have paid in full the Termination
Value and all other amounts due and owing hereunder and under the
other Operative Agreements.
17.7 Lessee's Purchase Option During Default. If Lessee
exercises its Purchase Option in accordance with Section 20.1 with
respect to a Property while a Lease Default or Lease Event of
Default is continuing, the exercise of such Purchase Option shall
be deemed to have cured such Lease Default or Lease Event of Default
to the extent such Lease Default or Lease Event of Default is no
longer continuing with respect to any other Property remaining
subject to this Lease after the exercise of the Purchase Option.
17.8 Waiver of Certain Rights. If this Lease shall be
terminated pursuant to Section 17.1, Lessee waives, to the fullest
extent permitted by law, (a) any notice of re-entry or the
institution of legal proceedings to obtain re-entry or possession;
(b) any right of redemption, re-entry or possession; (c) the
benefit of any laws now or hereafter in force exempting property from
liability for rent or for debt; and (d) any other rights which
might otherwise limit or modify any of Lessor's rights or remedies under
this Article XVII.
17.9 Assignment of Rights Under Contracts. If a Lease Event
of Default shall have occurred and be continuing, and whether or not
this Lease shall have been terminated pursuant to Section 17.1,
Lessee shall upon Lessor's demand immediately assign, transfer and
set over to Lessor all of Lessee's right, title and interest in and
to each agreement executed by Lessee in connection with the
purchase, construction, development, use or operation of the
Properties (including, without limitation, all right, title and
interest of Lessee with respect to all warranty, performance,
service and indemnity provisions), as and to the extent that the
same relate to the purchase, construction, use and operation of the
Properties.
17.10 Remedies Cumulative. The remedies herein provided shall
be cumulative and in addition to (and not in limitation of) any
other remedies available at law, equity or otherwise, including,
without limitation, any mortgage foreclosure remedies.
25
ARTICLE XVIII
18.1 Lessor's Right to Cure Lessee's Lease Defaults.
Lessor, without waiving or releasing any obligation or Lease Event of
Default, may (but shall be under no obligation to) remedy any Lease
Event of Default for the account and at the sole cost and expense
of Lessee, including the failure by Lessee to maintain the
insurance required by Article XIV, and may, to the fullest extent
permitted by law, and notwithstanding any right of quiet enjoyment
in favor of Lessee, enter upon any Property, or real property owned
or leased by Lessee and take all such action thereon as may be
necessary or appropriate therefor. No such entry shall be deemed
an eviction of any lessee. All reasonable out-of-pocket costs and
expenses so incurred (including without limitation reasonable fees
and expenses of counsel), together with interest thereon at the
Overdue Rate from the date on which such sums or expenses are paid
by Lessor, shall be paid by Lessee to Lessor on demand.
ARTICLE XIX
19.1 Provisions Relating to Lessee's Exercise of its Purchase
Option. Subject to Section 19.2, in connection with any
termination of this Lease with respect to any Property pursuant to the terms
of Section 16.2, or in connection with Lessee's exercise of its
Purchase Option or Expiration Date Purchase Option, upon the date
on which this Lease is to terminate with respect to the applicable
Property or upon the Expiration Date with respect to the applicable
Property, and upon tender by Lessee of the amounts set forth in
Sections 16.2(b), 20.1 or 20.2, as applicable, Lessor shall execute
and deliver to Lessee (or to Lessee's designee) at Lessee's cost
and expense an assignment and transfer of Lessor's entire interest in
the applicable 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). To effect such transfer and
assignment, Lessor shall execute, acknowledge (where required) and
deliver to Lessee each of the following: (i) a special or limited
warranty Deed conveying the Property (to the extent it is real
property) to Lessee free and clear of the Lien of this Lease, the
Lien of the Credit Documents and any Lessor Liens; (ii) a Bill of
Sale conveying the Property (to the extent it is personal property)
to Lessee free and clear of the Lien of this Lease, the Lien of the
Credit Documents and any Lessor Liens; (iii) any real estate tax
affidavit or other document required by law to be executed and
filed in order to record the Deed; and (iv) a FIRPTA affidavit. Subject
to the foregoing, the applicable Property shall be conveyed to
Lessee "AS IS" "WHERE IS" and in then present physical condition.
19.2 No Termination With Respect to Less than All of a
Property. Lessee shall not be entitled to exercise its Purchase
Option separately with respect to portions of a Property consisting
of Land, Equipment and Improvements but shall be
26
required to exercise its Purchase Option with respect to such
entire Property.
ARTICLE XX
20.1 Purchase Options. Provided that no Lease Default of the
types specified in Sections 17.1(a), (b) or (j) or Lease Event of
Default shall have occurred and be continuing (unless such Lease
Event of Default involves a single Property and can be cured by the
exercise of the option to purchase by Lessee of such Property and
such Property is referenced in the Purchase Notice (referenced
below)), and subject to Section 19.2, Lessee shall have the option
(the "Purchase Option), exercisable by giving Lessor no less than
sixty (60) days irrevocable written notice (the "Purchase Notice")
of Lessee's election to exercise such option as to any Property, on
any anniversary of the Basic Term Commencement Date for such
Property (or if all Properties are to be acquired on any such
anniversary), to purchase all or one or more Properties on such
date specified in such Purchase Notice at a price equal to the
Termination Value for such Property or Properties (which the
parties do not intend to be a "bargain" purchase price), and Lessee at
such time shall also pay any and all Rent then due and owing and all
other amounts then due and owing (including without limitation
amounts, if any, described in clause FIRST of Section 22.2) (such
Termination Value, Rent and other amounts being hereafter referred
to as the "Purchase Option Price"); provided, however, that unless
the Lessor otherwise consents or the Purchase Option is exercised
after the Construction Period Termination Date with respect to all
of the Properties, the Purchase Option may not be exercised by the
Lessee if, after giving effect to such exercise, the Maximum
Property Cost of the purchased Properties (together with all other
Properties purchased by Lessee pursuant to this Section 20.1) would
be greater than 35% of the greatest Maximum Property Cost
applicable at any time during the Term. If Lessee exercises its Purchase
Option pursuant to this Section 20.1, Lessor shall transfer to
Lessee all of Lessor's right, title and interest in and to such
Property as of the date specified in the Purchase Notice upon
receipt of the Purchase Option Price, amounts, if any, referred to
in clause FIRST of Section 22.2 and all Rent and other amounts then
due and payable under this Lease and any other Operative Agreement.
To effect any transfer and assignment by Lessor to Lessee under
this Section 20.1, Lessor shall execute, acknowledge (where
required) and deliver to Lessee each of the following: (i) a
special or limited warranty Deed conveying the Property (to the
extent it is real property) to Lessee free and clear of the Lien of
this Lease, the Lien of the Credit Documents and any Lessor Liens;
(ii) a Bill of Sale conveying the Property (to the extent it is
personal property) to Lessee free and clear of the Lien of this
Lease, the Lien of the Credit Documents and any Lessor Liens;
(iii) any real estate tax affidavit or other document required by law to
be executed and filed in order to record the Deed; and (iv) a
FIRPTA affidavit. For purposes of this Lease and the other
Operative Agreements, any and all
27
amounts paid by Lessee pursuant to the provisions of Section
10.3(f) of the Participation Agreement shall be deemed to be amounts paid
and received pursuant to this Section 20.1. Lessee may assign its
rights under this Section 20.1 to another Person; provided, Lessee
shall remain liable for all obligations of Lessee hereunder
respecting Property remaining subject to the terms of this Lease
subsequent to such assignment as if such assignment had not
occurred.
20.2 Expiration Date Purchase or Sale Option. Not less than
90 days and no more than 180 days prior to the Expiration Date,
Lessee may give Lessor and Agent written notice (the "Expiration Date
Election Notice") that Lessee is electing to exercise the
Expiration Date Purchase Option or the option of Lessee to remarket and sell
the Properties pursuant to Section 22.1. If Lessee does not give
an Expiration Date Election Notice at least 90 days and not more than
180 days prior to the then current Expiration Date, then Lessee
shall be obligated to repurchase the Properties pursuant to Section
20.1. If any Property is the subject of remediation efforts
respecting Hazardous Substances at the Expiration Date which could
materially and adversely impact the Fair Market Sales Value of such
Property, then Lessee shall be obligated to repurchase each such
Property pursuant to Section 20.1. Prior to the Expiration Date,
Lessee may rescind its election to remarket the Properties pursuant
to Section 22.1 and elect instead the Expiration Date Purchase
Option. If Lessee shall either (i) elect, or be deemed to have
elected, to exercise the Expiration Date Purchase Option or (ii)
elect to remarket the Properties pursuant to Section 22.1 and fail
to cause all of the Properties to be sold on the Expiration Date in
accordance with the terms of Sections 20.1 or 22.1, respectively,
then in either case, on the Expiration Date Lessee shall pay to
Lessor an amount equal to the Termination Value for all the
Properties (which the parties do not intend to be a "bargain"
purchase) and, upon receipt of such amount plus all Rent and other
amounts then due and payable under this Lease and under any other
Operative Agreement (including without limitation the amounts
described in clause FIRST of Section 22.2), Lessor shall transfer
to Lessee all of Lessor's right, title and interest in and to the
Properties in accordance with Section 19.1.
20.3 Lessor's Transfer Option. If, on the Construction Period
Termination Date, there are fewer than four (4) Properties then
subject to the terms of this Lease, then Lessor shall have the
option to give Lessee irrevocable written notice that Lessor, on a
Payment Date that is not less than thirty (30) days after the date
of such written notice, shall transfer and convey all of its right,
title and interest in and to any or all of the Properties to
Lessee. On any transfer and conveyance date specified by Lessor
pursuant to this Section 20.3, (i) Lessor shall transfer and convey
all of its right, title and interest in and to any or all of the
Properties previously specified to Lessee, (ii) Lessee shall accept
such transfer and conveyance of right, title and interest in and to
the respective Property or Properties and (iii) Lessee shall pay
the Termination Value for
28
such respective Property or Properties and all Rent and other
amounts then due and payable under this Lease and under any other
Operative Agreement (including without limitation all costs and
expenses referred to in clause FIRST of Section 22.2), in
accordance with Section 19.1.
ARTICLE XXI
21.1 Renewal. Provided that no Lease Event of Default shall
have occurred and be continuing and provided that the Lenders agree
at such time to extend the Maturity Date to a date that is
identical to the final day of the Extended Term, at the Basic Term
Expiration Date, Lessee may renew this Lease (the "Renewal Option") for the
Extended Term upon not more than 180 days and not less than 90 days
prior written notice to Lessor, with respect to all Property, other
than Property which Lessee shall have elected to purchase pursuant
to Section 20.1. Unless otherwise agreed, any such renewal of this
Lease for the Extended Term shall be on the same terms and
conditions as set forth in this Lease for the original Term (which
the parties do not intend to be a "bargain" renewal), subject in
any case to renegotiation of the rental rate applicable during the
Extended Term.
ARTICLE XXII
22.1 Sale Procedure.
(a) During the Marketing Period, Lessee, on behalf of
any assignee of Lessee pursuant to Section 25.1 or the Lessor,
shall obtain bids for the cash purchase of all of the
Properties in connection with a sale to one or more purchasers
to be consummated on the Expiration Date for the highest price
available (subject to the proviso in the next sentence), shall
notify Lessor promptly of the name and address of each
prospective purchaser and the cash price which each
prospective purchaser shall have offered to pay for any Property and
shall provide Lessor with such additional information about the
bids and the bid solicitation procedure as Lessor may reasonably
request from time to time. Lessor may reject any and all bids
and may assume sole responsibility for obtaining bids by
giving Lessee written notice to that effect; provided, however, that
notwithstanding the foregoing, Lessor may not reject the bids
for the Properties submitted by the Lessee if such bids, in
the aggregate, are greater than or equal to the sum of the
Limited Recourse Amount for all of the Properties, plus all amounts,
if any, referred to in clause FIRST of Section 22.2 and
represent bona fide offers from one or more third party
purchasers. If the price which a prospective purchaser or
purchasers shall have offered to pay for the Properties is
less than the sum of the Limited Recourse Amount plus all
costs and expenses referred to in clause FIRST of Section
22.2, Lessor may elect to retain all the
29
Properties by giving Lessee prior written notice of Lessor's
election to retain the Properties, and upon receipt of such
notice, Lessee shall surrender, or cause to be surrendered,
the Properties to Lessor pursuant to Section 10.1. Unless Lessor
shall have elected to retain the Properties pursuant to the
preceding sentence, Lessee shall arrange for Lessor to sell
the Properties, for cash on the Expiration Date to the purchaser
or purchasers identified by Lessee or Lessor, as the case may
be. To effect such transfer and assignment, Lessor shall
execute, acknowledge (where required) and deliver to Lessee
each of the following: (i) a special or limited warranty Deed
conveying the Property (to the extent it is real property) to
Lessee free and clear of the Lien of this Lease, the Lien of
the Credit Documents and any Lessor Liens; (ii) a Bill of Sale
conveying the Property (to the extent it is personal property)
to Lessee free and clear of the Lien of this Lease, the Lien
of the Credit Documents and any Lessor Liens; (iii) any real
estate tax affidavit or other document required by law to be
executed and filed in order to record the Deed; and (iv) a
FIRPTA affidavit. Lessee shall surrender, or cause to be
surrendered, the Property so sold or subject to such documents
to each purchaser in the condition specified in Section 10.1.
Neither party shall take any action or fail to take any action
(where action is required under the Operative Agreements)
which would have the effect of discouraging bona fide third
party bids for any Property. If all of the Properties are not
either (i) sold on the Expiration Date in accordance with the
terms of this Section 22.1, or (ii) retained by the Lessor
pursuant to an affirmative election made by the Lessor
pursuant to the third sentence of this Section 22.1(a), then
the Lessee shall be obligated to pay the Lessor on the
Expiration Date an amount equal to the Termination Value for
all of the Properties (plus all Rent and other amounts then
due and payable under this Lease and any other Operative
Agreements) in accordance with the terms of Section 20.2.
(b) If the Properties are sold on the Expiration Date to
one or more third party purchasers in accordance with the
terms of Section 22.1(a) and the aggregate purchase price paid for
the Properties minus the sum of all amounts, if any, referred
to in clause FIRST of Section 22.2 is less than the sum of the
aggregate Termination Values for all of the Properties plus
all Rent and other amounts then due and payable under this Lease
and under any other Operative Agreements (hereinafter such
difference shall be referred to as the "Deficiency Balance"),
then the Lessee hereby unconditionally promises to pay to the
Lessor on the Expiration Date the lesser of (i) the Deficiency
Balance, or (ii) the Maximum Residual Guarantee Amount for all
of the Properties. If the Properties are retained by the
Lessor pursuant to an affirmative election made by the Lessor
pursuant to the third sentence of Section 22.1(a), then the
Lessee hereby unconditionally promises to pay to the Lessor
30
on the Expiration Date an amount equal to the aggregate
Maximum Residual Guaranty Amounts for all of the Properties.
(c) In the event the Properties are either sold to a
third party purchaser on the Expiration Date or retained by
the Lessor in connection with an affirmative election by the
Lessor pursuant to the third sentence of Section 22.1(a), then
in either case on the Expiration Date the Lessee shall
provide, or cause to be provided, Lessor or such third party
purchaser, with (i) all permits, certificates of occupancy,
governmental licenses and authorizations (to the extent such
licenses or authorizations are transferable) necessary to use
and operate such Property for its intended purposes, (ii) such
easements, licenses, rights-of-way and other rights and
privileges in the nature of an easement as are reasonably
necessary or desirable in connection with the use, repair,
access to or maintenance of such Property for its intended
purpose or otherwise as the Lessor shall reasonably request,
and (iii) a services agreement covering such services as
Lessor or such third party purchaser may request in order to
use and operate the Property for its intended purposes at such
rates (not in excess of arm's- length fair market rates) as
shall be acceptable to Lessee and Lessor or such third party
purchaser. All assignments, licenses, easements, agreements
and other deliveries required by clauses (i) and (ii) of this
paragraph (c) shall be in form satisfactory to the Lessor or
such third party purchaser, as applicable, and shall be fully
assignable (including both primary assignments and assignments
given in the nature of security) without payment of any fee,
cost or other charge.
22.2 Application of Proceeds of Sale. The Lessor shall apply
the proceeds of sale of any Property in the following order of
priority:
(i) FIRST, to pay or to reimburse Lessor for the
payment of all reasonable costs and expenses, if any, incurred
by Lessor in connection with the sale;
(ii) SECOND, so long as the Credit Agreement is in
effect and the Holder Advance or any amount is owing to the
Holder under any Operative Agreement, to the Agent to be
applied pursuant to inter-creditor provisions between the
Lenders and the Holder contained in Section 8 of the Credit
Agreement and any other applicable provisions of the Operative
Agreements; and
(iii) THIRD, to the Lessee.
22.3 (intentionally omitted).
22.4 (intentionally omitted).
31
22.5 Certain Obligations Continue. During the Marketing
Period, the obligation of Lessee to pay Rent with respect to the
Properties (including the installment of Basic Rent due on the
Expiration Date) shall continue undiminished until payment in full
to Lessor of the sale proceeds, if any, the Maximum Residual
Guarantee Amount and all other amounts due to Lessor with respect
to all Properties. 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.
22.6 Sale of Undeveloped Pads. Provided that no Lease Default
or Lease Event of Default shall have occurred and be continuing,
Lessee shall have the option, exercisable by giving Lessor no less
than thirty (30) days written notice of Lessee's election to
transfer and convey any undeveloped Land (excluding any de minimis
site improvements) regarding any Property on the following terms
and conditions: (a) the Person to whom the transfer and conveyance is
made shall not be an Affiliate of Lessee; (b) the purchase price
for such Land shall be equal to or greater than the Fair Market Sales
Value thereof and shall be promptly paid to Lessor (and in any
event within three (3) Business Days after such transfer and
conveyance); (c) the applicable Property, excluding such Land transferred and
conveyed therefrom, shall (on and after the date of such transfer
and conveyance) satisfy all of the terms and conditions of the
Operative Agreements and (d) all Rent and other amounts due and
payable by Lessee under any Operative Agreement shall be paid on or
prior to the date of such transfer and conveyance.
ARTICLE XXIII
23.1 Holding Over. If Lessee shall for any reason remain in
possession of a Property after the expiration or earlier
termination of this Lease as to such Property (unless such Property is
conveyed to Lessee), such possession shall be as a tenancy at sufferance
during which time Lessee shall continue to pay Supplemental Rent
that would be payable by Lessee hereunder were the Lease then in
full force and effect with respect to the Property and Lessee shall
continue to pay Basic Rent at 110% of the Basic Rent that would
otherwise be due and payable at such time. Such Basic Rent shall
be payable from time to time upon demand by Lessor and such
additional 10% amount shall be applied by the Lessor to the payment of the
Loans pursuant to the Credit Agreement and the Holder Advance
pursuant to the Trust Agreement pro rata between the Loans and the
Holder Advance. 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
their occupancy and use of such Property. Nothing contained in
this Article XXIII shall constitute the consent, express or implied,
32
of Lessor to the holding over of Lessee after the expiration or
earlier termination of this Lease as to any Property (unless such
Property is conveyed to Lessee) and nothing contained herein shall
be read or construed as preventing Lessor from maintaining a suit
for possession of such Property or exercising any other remedy
available to Lessor at law or in equity.
ARTICLE XXIV
24.1 Risk of Loss. During the Term, unless Lessee shall not
be in actual possession of the Property in question solely by reason
of Lessor's exercise of its remedies of dispossession under Article
XVII, the risk of loss or decrease in the enjoyment and beneficial
use of such Property as a result of the damage or destruction
thereof by fire, the elements, casualties, thefts, riots, wars or
otherwise is assumed by Lessee, and Lessor shall in no event be
answerable or accountable therefor.
ARTICLE XXV
25.1 Assignment.
(a) Without the consent of the Lessor, Lessee may
assign, subject to Section 25.1(b), this Lease and its rights
hereunder in whole or in part to any Person provided the
aggregate Property Cost of all such Properties under
assignment, at the time such assignment becomes effective,
does not exceed 25% of the aggregate Property Cost of all
Properties then subject to this Lease. Lessee may not assign
this Lease or its rights hereunder in whole or in part in
addition to that referenced in the preceding sentence without
first obtaining the prior written consent of the Lessor. Each
assignment hereunder shall be made in the normal course of
Lessee's business, on commercially reasonable terms and at
market rates.
(b) No such assignment or other relinquishment of
possession to any Property shall in any way discharge or
diminish any of the obligations of Lessee to Lessor hereunder
and Lessee shall remain directly and primarily liable under
this Lease as to any assignment regarding this Lease.
25.2 Subleases.
(a) Without the consent of the Lessor, Lessee may
sublet, subject to Section 25.2(c), any Property or portion thereof
to (i) any wholly-owned Subsidiary of Lessee or (ii) any Person
(which is not a wholly-owned Subsidiary of Lessee) provided
the aggregate Property Cost of all such Properties under sublease
to Persons (which are not wholly- owned Subsidiaries of
Lessee), at the time such sublease becomes effective, does not
exceed 25% of the aggregate
33
Property Cost of all Properties then subject to this Lease.
Lessee may not sublet any Property or portion thereof in
addition to that referenced in the preceding sentence without
first obtaining the prior written consent of the Lessor. Each
sublease hereunder shall be made in the normal course of
Lessee's business, on commercially reasonable terms and at
market rates. Each sublease may be for a term less than,
equal to or greater than the Term, as extended from time to time.
(b) Promptly following the execution and delivery of any
sublease permitted by this Article XXV, Lessee shall notify
Lessor and the Agent of the execution of such sublease. As of
the date of each Lease Supplement, Lessee shall lease the
respective Properties described in such Lease Supplement from
Lessor, and any existing tenant respecting such Property shall
automatically be deemed to be a subtenant of Lessee and not a
tenant of Lessor.
(c) No such sublease or other relinquishment of
possession to any Property shall in any way discharge or
diminish any of Lessee's obligations to Lessor hereunder and
Lessee shall remain directly and primarily liable under this
Lease as to the Property, or portion thereof, so sublet.
ARTICLE XXVI
26.1 No Waiver. No failure by Lessor or Lessee to insist upon
the strict performance of any term hereof or to exercise any right,
power or remedy upon a default hereunder, and no acceptance of full
or partial payment of Rent during the continuance of any such
default, shall constitute a waiver of any such default or of any
such term. To the fullest extent permitted by law, no waiver of
any default shall affect or alter this Lease, and this Lease shall
continue in full force and effect with respect to any other then
existing or subsequent default.
ARTICLE XXVII
27.1 Acceptance of Surrender. No surrender to Lessor of this
Lease or of all or any portion of any Property or of any part of
any thereof or of any interest therein shall be valid or effective
unless agreed to and accepted in writing by Lessor and, prior to
the payment or performance of all obligations under the Credit
Documents, the Agent, and no act by Lessor or the Agent or any
representative or agent of Lessor or the Agent, other than a
written acceptance, shall constitute an acceptance of any such surrender.
27.2 No Merger of Title. There shall be no merger of this
Lease or of the leasehold estate created hereby by reason of the
fact that the same Person may acquire, own or hold, directly or
34
indirectly, in whole or in part, (a) this Lease or the leasehold
estate created hereby or any interest in this Lease or such
leasehold estate, (b) any right, title or interest in any Property,
(c) any Notes, or (d) a beneficial interest in Lessor.
ARTICLE XXVIII
28.1 Incorporation of Covenants. Reference is made to that
certain Credit Agreement dated as of June 30, 1994 (the "1994
Credit Agreement") among the Lessee, Continental Bank, as Agent, and the
other financial institutions party thereto. Further reference is
made to the covenants contained in Section 10 of the 1994 Credit
Agreement (hereinafter referred to as the "Incorporated
Covenants"). The Lessee agrees with the Lessor that the
Incorporated Covenants (and all other relevant provisions of the
Credit Agreement related thereto) are hereby incorporated by
reference into this Lease to the same extent and with the same
effect as if set forth fully herein, without giving effect to any
waiver, amendment, modification or replacement of the 1994 Credit
Agreement or any term or provision of the Incorporated Covenants
occurring subsequent to the date of this Lease, except to the
extent otherwise specifically provided in the following provisions
of this paragraph. In the event a waiver is granted under the 1994
Credit Agreement or an amendment or modification is executed with
respect to the 1994 Credit Agreement, and such waiver, amendment
and/or modification affects the Incorporated Covenants, then such
waiver, amendment or modification shall be effective with respect
to the Incorporated Covenants as incorporated by reference into
this Lease only if consented to in writing by the Lessor and the
Majority Lenders. In the event of any replacement of the 1994
Credit Agreement with a similar credit facility (the "New
Facility") the covenants contained in the New Facility which
correspond to the covenants contained in Section 10 of the 1994
Credit Agreement shall become the Incorporated Covenants hereunder
only if consented to in writing by the Lessor and the Majority
Lenders and, if such consent is not granted or if the 1994 Credit
Agreement is terminated and not replaced, then the covenants
contained in Section 10 of the 1994 Credit Agreement (together with
any modifications or amendments approved in accordance with this
paragraph) shall continue to be the Incorporated Covenants
hereunder.
ARTICLE XXIX
29.1 Notices. All notices required or permitted to be given
under this Lease shall be in writing. Notices may be served by
certified or registered mail, postage paid with return receipt
requested; by private courier, prepaid; by telex, facsimile, or
other telecommunication device capable of transmitting or creating
a written record; or personally. Mailed notices shall be deemed
delivered five days after mailing, properly addressed.
35
Couriered notices shall be deemed delivered when delivered as
addressed, or if the addressee refuses delivery, when presented for
delivery notwithstanding such refusal. Telex or telecommunicated
notices shall be deemed delivered when receipt is either confirmed
by confirming transmission equipment or acknowledged by the
addressee or its office. Personal delivery
shall be effective when accomplished. Unless a party changes its
address by giving notice to the other party as provided herein,
notices shall be delivered to the parties at the following
addresses:
If to Lessee:
Fred Meyer, Inc.
3800 S.E. 22nd Avenue
P.O. Box 42121
Portland, Oregon 97242
Attention: Michael H. Don,
Vice President
and Corporate Treasurer
Telephone: (503) 797-5300
Telecopier: (503) 797-5299
If to Lessor:
First Security Bank of Utah, N.A.
79 South Main Street
Salt Lake City, Utah 84111
Attention: Mr. Val T. Orton
Corporate Trust Counsel
Telephone: (801) 246-5300
Telecopy: (801) 246-5053
with a copy to the Agent:
NationsBank of Texas, N.A.
901 Main Street, 13th Floor
P.O. Box 831000
Dallas, Texas 75283-1000
Attention: Ms. Molly Oxford
Assistant Vice President
Telephone: (214) 508-3255
Telecopy: (214) 508-2515
or such additional parties and/or other address as such party may
hereafter designate, and shall be effective upon receipt or refusal
thereof.
ARTICLE XXX
30.1 Miscellaneous. Anything contained in this Lease to the
contrary notwithstanding, all claims against and liabilities of
Lessee or Lessor arising from events commencing prior to the
expiration or earlier termination of this Lease shall survive
36
such expiration or earlier termination. If any provision of this
Lease shall be held to be unenforceable in any jurisdiction, such
unenforceability shall not affect the enforceability of any other
provision of this Lease and such jurisdiction or of such provision
or of any other provision hereof in any other jurisdiction.
30.2 Amendments and Modifications. Neither this Lease, any
Lease Supplement nor any provision hereof may be amended, waived,
discharged or terminated except by an instrument in writing in
recordable form signed by Lessor and Lessee.
30.3 Successors and Assigns. All the terms and provisions of
this Lease shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
30.4 Headings and Table of Contents. The headings and table
of contents in this Lease are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
30.5 Counterparts. This Lease may be executed in any number
of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same instrument.
30.6 GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OREGON.
30.7 Calculation of Rent. All calculation of Basic Rent
payable hereunder (to the extent computed with reference to the
Eurodollar Rate) shall be computed based on the actual number of
days elapsed over a year of 360 days.
30.8 Memoranda of Lease and Lease Supplements. This Lease
shall not be recorded; provided, Lessor and Lessee shall promptly
record (a) a memorandum of this Lease and the applicable Lease
Supplement (in substantially the form of Exhibit B-1 attached
hereto) regarding (i) each Improved Property promptly after the
acquisition thereof in the local filing office with respect thereto
and (ii) each Property which is not an Improved Property promptly
after the commencement of the Basic Term therefor in the local
filing office with respect thereto, and (b) a memorandum of this
Lease (in substantially the form of Exhibit B-2 attached hereto)
regarding each Property which is not an Improved Property promptly
after the acquisition thereof in the local filing office with
respect thereto, in all cases at Lessee's cost and expense, and as
required under applicable law to sufficiently evidence this Lease
or any such Lease Supplement in the applicable real estate filing
records.
30.9 Allocations between the Lenders and the Holder.
Notwithstanding any other term or provision of this Lease to the
contrary, the allocations of the proceeds of the Properties and any
and all other Rent and other amounts received hereunder shall be
subject to the inter-creditor provisions between the Lenders and
the Holder contained in the Operative Agreement (or as
37
otherwise agreed among the Lenders and the Holder from time to
time).
30.10 Limitations on Recourse. Notwithstanding anything
contained in this Lease to the contrary, Lessee agrees to look
solely to Lessor's estate and interest in the Properties (and in no
circumstance to the Agent, the Lenders, the Holder or otherwise to
Lessor) for the collection of any judgment requiring the payment of
money by Lessor in the event of liability by Lessor, and no other
property or assets of Lessor or any shareholder, owner or partner
(direct or indirect) in or of Lessor, or any director, officer,
employee, beneficiary, Affiliate of any of the foregoing shall be
subject to levy, execution or other enforcement procedure for the
satisfaction of the remedies of Lessee under or with respect to
this Lease, the relationship of Lessor and Lessee hereunder or Lessee's
use of the Properties or any other liability of Lessor to Lessee.
Nothing in this Section shall be interpreted so as to limit the
terms of Sections 6.1 or 6.2.
30.11 Estoppel Certificates. Upon twenty (20) days' prior
notice of the request, either party will execute, acknowledge and
deliver to the other party a certificate stating (a) that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect as
modified, and setting forth such modifications), (b) the dates to
which Rent and other sums payable hereunder have been paid, and (c)
either that to the knowledge of the party no default exists under
this Lease or specifying each such default of which the party has
knowledge. A party shall not be obligated, except as provided
herein, to update any certificate once delivered.
30.12 Decision Making by Parties. Wherever a party's
consent, approval, decision or determination is required under this
Lease, such consent or approval shall be given or decision or
determination shall be made in writing and in a commercially
reasonable manner. No change in Rent, the rights of the parties or
the economic terms of this Lease shall be required as a condition
to granting of consent. Any denial of consent will include in
reasonable detail the reason for denial or aspect of the request
that was not acceptable.
30.13 Limited Power of Attorney. To the extent required
by Lessee, Lessor hereby agrees to provide Lessee with a Limited
Power of Attorney permitting Lessee to act on behalf of Lessor in
connection with (i) consenting to all Subleases referenced in
Section 25.2 of this Lease (respecting up to, but not to exceed,
25% of the aggregate Property Costs of all Properties then subject to
the Lease), (ii) executing all easements, use, restrictive
covenant, assessment or bonding agreements referenced in the first paragraph
of Section 10.5 of the Participation Agreement and (iii) selling
undeveloped Land as is more specifically described in Section 22.6
of this Lease (provided, all such sales shall be conducted in
compliance with the terms of
38
such Section 22.6, without modification of such provisions pursuant
to the utilization of the Limited Power of attorney by Lessee);
provided, the Limited Power of Attorney may be utilized only to the
extent (x) no Default or Event of Default shall have occurred or be
continuing at the time of the contemplated exercise of the Limited
Power of Attorney and (y) such Sublease, easement, use, restrictive
covenant, assessment or bonding agreement or document of sale shall
be made in the normal course of the Lessee's business, at market
rates, on commercially reasonable terms and accomplished in a
manner so as not to diminish the value of any Property in any material
respect.
To the extent any Event of Default has occurred and is
continuing or the Lessee has received written notice of the
occurrence of any Default, the Limited Power of Attorney shall
immediately terminate and be void and of no further force or effect
unless reinstated in writing by the Lessor and acknowledged and
agreed to by the Holder and the Agent. Each action taken by the
Lessee under the Limited Power of Attorney shall automatically,
without further action, be deemed to be a representation and
warranty as of such date that the conditions set forth in the first
sentence of this Section 30.13 are satisfied in full as of such
date.
30.14 Submission To Jurisdiction; Waivers. Each of the
parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Lease and the other Operative
Agreements to which it is a party, or for recognition and
enforcement of any judgement in respect thereof, to the non-
exclusive general jurisdiction of the Courts of the State of
Oregon, the courts of the United States of America for the District of
Oregon, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail)
postage prepaid, to such party at its address set forth in Section
29.1 or at such other address of which the parties hereto shall
have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal
39
action or proceeding referred to in this Section 30.14 any special,
exemplary or punitive damages.
30.15 WAIVERS OF JURY TRIAL. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE LESSOR AND THE LESSEE HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS LEASE OR ANY OTHER OPERATIVE AGREEMENT
TO WHICH SUCH ENTITY IS A PARTY AND FOR ANY COUNTERCLAIM THEREIN.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Lease to be
duly executed and delivered as of the date first above written.
FRED MEYER, INC.
By: MICHAEL H. DON
--------------------------------
Name: Michael H. Don
------------------------------
Title: V.P. & Treasurer
-----------------------------
FIRST BANK OF UTAH, N.A., not
individually, but solely as Owner
Trustee under the FM Trust 1995-1
By: GREG A. HAWLEY
--------------------------------
Name: Greg A. Hawley
------------------------------
Title: Assistant Vice President
-----------------------------
Receipt of this original
counterpart of the foregoing
Lease is hereby
acknowledged as the date
hereof
NationsBank of Texas, N.A.,
as Agent
By: _______________________
Name: William Guffey
Title: Vice President
EXHIBIT A TO
THE LEASE
------------
LEASE SUPPLEMENT NO. ___
THIS LEASE SUPPLEMENT NO. ___ (this "Lease Supplement") dated
as of [________________________] between FIRST SECURITY BANK OF
UTAH, N.A., a national banking association, not individually, but
solely as Owner Trustee under the FM Trust 1995-1, as lessor (the
"Lessor"), and FRED MEYER, INC., as lessee (the "Lessee").
WHEREAS, the Lessor is the owner or will be owner of the
Property described on Schedule I hereto (the "Leased Property") and
wishes to lease the same to Lessee;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions; Rules of Usage. For purposes of this
Lease Supplement, capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in Appendix
A to the Participation Agreement, dated as of May 5, 1995, among
the Lessee, the Lessor, not individually, except as expressly stated
therein, but solely as Owner Trustee under the FM Trust 1995-1,
NationsBank of Texas, N.A., as the Holder, the various banks and
banking institutions which are parties thereto from time to time
and NationsBank of Texas, N.A., as Agent for the Lenders.
SECTION 2. The Properties. Attached hereto as Schedule I is
the description of the Leased Property, with an Equipment Schedule
attached hereto as Schedule I-A, an Improvement Schedule attached
hereto as Schedule I-B and a legal description of the Land for such
Project attached hereto as Schedule I-C. Effective upon the
execution and delivery of this Lease Supplement by the Lessor and
the Lessee, the Leased Property shall be subject to the terms and
provisions of the Lease.
SECTION 3. Ratification; Incorporation by Reference. Except
as specifically modified hereby, the terms and provisions of the
Lease and the Operative Agreements are hereby ratified and
confirmed and remain in full force and effect. The Lease is hereby
incorporated herein by reference as though restated herein in its
entirety.
SECTION 4. Original Lease Supplement. The single executed
original of this Lease Supplement marked "THIS COUNTERPART IS THE
ORIGINAL EXECUTED COUNTERPART" on the signature page thereof and
containing the receipt of the Agent therefor on or following the
signature page thereof shall be the original executed counterpart
of this Lease Supplement (the "Original Executed Counterpart"). To
the extent that this Lease Supplement constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in
effect in any applicable jurisdiction, no security interest in this
Lease Supplement may be created through the transfer or possession
of any counterpart other than the Original Executed Counterpart.
SECTION 5. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF OREGON.
SECTION 6. Mortgage; Power of Sale. Without limiting any
other remedies set forth in the Lease, in the event that a court of
competent jurisdiction rules that the Lease constitutes a mortgage,
deed of trust or other secured financing as is the intent of the
parties, then the Lessor and the Lessee agree that the Lessee
hereby grants a Lien against the Leased Property WITH POWER OF SALE, and
that, upon the occurrence and during the continuance of any Lease
Event of Default, the Lessor shall have the power and authority, to
the extent provided by law, after prior notice and lapse of such
time as may be required by law, to foreclose its interest (or cause
such interest to be foreclosed) in all or any part of the Leased
Property.
SECTION 7. Counterpart Execution. This Lease Supplement may
be executed in any number of counterparts and by each of the
parties hereto in separate counterparts, all such counterparts together
constituting but one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
[If necessary, modify to put in recordable form.]
IN WITNESS WHEREOF, each of the parties have caused this Lease
Supplement to be duly executed by an officer thereunto duly
authorized as of the date first above written.
FIRST SECURITY BANK OF UTAH, N.A.,
not individually, but solely as Owner
Trustee under the FM Trust 1995-1, as
Lessor
By: _______________________________
Name: _____________________________
Title: ____________________________
FRED MEYER, INC., as Lessee
By: _______________________________
Name: _____________________________
Title: ____________________________
Receipt of this original counterpart of the foregoing Lease
Supplement is hereby acknowledged as the date hereof.
NATIONSBANK OF TEXAS, N.A., as Agent
By: __________________________
Name: ________________________
Title: _______________________
[Conform to State Law Requirements]
ACKNOWLEDGEMENTS
----------------
STATE OF )
) ss.
County of )
The foregoing instrument was acknowledged before me, the
undersigned Notary Public, in the County of ___________, on this
___ day of ______________, 19__ by _______________________________ of
FIRST SECURITY BANK OF UTAH, N.A., a national banking association,
of and on behalf of the national banking association.
____________________________________
(NOTARIAL SEAL) Notary Public for __________________
Residing at: _______________________
My commission expires: _____________
STATE OF OREGON )
) ss.
County of )
On this ___ day of __________, 19__, before me,
_____________________ [notary's name], a Notary Public of the State
of Oregon, duly commissioned and sworn, personally appeared
______________________ to me personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person who
executed the written instrument as the ______________________ of
FRED MEYER, INC., a Delaware corporation, of and on behalf of such
corporation and acknowledged to me that such corporation executed
the same.
_____________________________________
(NOTARIAL SEAL) Notary Public for the State of Oregon
Residing at: ________________________
My commission expires: ______________
STATE OF ________________)
) ss:
COUNTY OF _______________)
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of ________________ this
_____ day of ______________, by ________________, as
__________________ of First Security Bank of Utah, N.A., not
individually, but solely as Owner Trustee under the FM Trust
1995-1, on behalf of the Owner Trustee.
[Notarial Seal] ________________________________
Notary Public
My commission expires: _________ Residing at: ___________________
________________________________
STATE OF ________________)
) ss:
COUNTY OF _______________)
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of ________________ this
_____ day of ______________, by ________________, as
_______________ of FRED MEYER, INC., a Delaware corporation, on behalf of the
corporation.
[Notarial Seal] ________________________________
Notary Public
My commission expires: __________ Residing at: ___________________
________________________________
STATE OF ________________)
) ss:
COUNTY OF _______________)
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of ________________ this
_____ day of ______________, by ________________, as
_______________ of NATIONSBANK OF TEXAS, N.A., a national banking association,
as Agent.
[Notarial Seal] ________________________________
Notary Public
My commission expires: __________ Residing at: ___________________
________________________________
A-1
- ---------------------------------------------------------------------------
Appendix A
Rules of Usage and Definitions
- ---------------------------------------------------------------------------
I. Rules of Usage
The following rules of usage shall apply to this Appendix A and
the Operative Agreements (and each appendix, schedule, exhibit and
annex to the foregoing) unless otherwise required by the context or
unless otherwise defined therein:
(a) Except as otherwise expressly provided, any definitions
set forth herein or in any other document shall be equally
applicable to the singular and plural forms of the terms defined.
(b) Except as otherwise expressly provided, references in
any document to articles, sections, paragraphs, clauses, annexes,
appendices, schedules or exhibits are references to articles,
sections, paragraphs, clauses, annexes, appendices, schedules or
exhibits in or to such document.
(c) The headings, subheadings and table of contents used in
any document are solely for convenience of reference and shall
not constitute a part of any such document nor shall they affect
the meaning, construction or effect of any provision thereof.
(d) References to any Person shall include such Person, its
successors and permitted assigns and transferees.
(e) Except as otherwise expressly provided, reference to
any agreement means such agreement as amended, modified,
extended, supplemented, restated and/or replaced from time to
time in accordance with the applicable provisions thereof.
(f) Except as otherwise expressly provided, references to
any law includes any amendment or modification to such law and
any rules or regulations issued thereunder or any law enacted in
substitution or replacement therefor.
(g) When used in any document, words such as "hereunder",
"hereto", "hereof" and "herein" and other words of like import
shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any
particular article, section, subsection, paragraph or clause
thereof.
A-2
(h) References to "including" means including without
limiting the generality of any description preceding such term
and for purposes hereof the rule of ejusdem generis shall not be
applicable to limit a general statement, followed by or referable
to an enumeration of specific matters to matters similar to those
specifically mentioned.
(i) References herein to "attorney's fees", "legal fees",
"costs of counsel" or other such references shall be deemed to
include the allocated cost of in-house counsel.
(j) Each of the parties to the Operative Agreements and
their counsel have reviewed and revised, or requested revisions
to, the Operative Agreements, and the usual rule of construction
that any ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation
of the Operative Agreements and any amendments or exhibits
thereto.
II. Definitions
"ABR" shall have the meaning specified in Section 1.1 of the
Credit Agreement.
"acquire" or "purchase" shall mean, with respect to any Property,
the acquisition, lease or purchase of such Property by the Owner
Trustee from any Person.
"Acquisition Advance" shall mean an advance of funds to pay
Property Acquisition Costs and other amounts related thereto pursuant
to Section 5.3 of the Participation Agreement.
"Advance" shall mean a Construction Advance or Modification
Advance or an Acquisition Advance.
"Affiliate" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"After Tax Basis" shall mean, with respect to any payment to be
received, the amount of such payment increased so that, after
deduction of the amount of all taxes required to be paid by the
recipient calculated at the then maximum marginal rates generally
applicable to Persons of the same type as the recipients (less any tax
savings realized as a result of the payment of the indemnified amount)
with respect to the receipt by the recipient of such amounts, such
increased payment (as so reduced) is equal to the payment otherwise
required to be made.
"Agency Agreement" shall mean the Agency Agreement, dated as of
the Initial Closing Date, between the Construction Agent and the Owner
Trustee.
"Agency Agreement Event of Default" shall mean an "Event of
Default" as defined in Section 5.1 of the Agency Agreement.
A-3
"Agent" or "Administrative Agent" shall mean NationsBank of
Texas, N.A., as Administrative Agent for the Lenders pursuant to the
Credit Agreement, or any successor agent appointed in accordance with
the terms of the Credit Agreement.
"Allocated Interest" shall have the meaning specified in Section
1.1 of the Credit Agreement.
"Applicable Margin" shall have the meaning given such term in
Section 1.1 of the Credit Agreement.
"Appraisal" shall mean, with respect to any Property an appraisal
to be delivered in connection with a Property Closing Date or in
accordance with the terms of Section 10.1(e) of the Lease, in each
case prepared by a reputable appraiser reasonably acceptable to the
Agent, which in the judgment of counsel to the Agent, complies with
all of the provisions of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, as amended, the rules and regulations
adopted pursuant thereto, and all other applicable Legal Requirements,
with such appraisal to be performed by an appraiser selected by the
Agent after consultation with Lessee.
"Approved States" shall mean Washington, Oregon, Utah and Idaho,
and any other state approved in writing by the Lessor and the Agent.
"Appurtenant Rights" shall mean (i) all agreements, easements,
rights of way or use, rights of ingress or egress, privileges,
appurtenances, tenements, hereditaments and other rights and benefits
at any time belonging or pertaining to the Land underlying any
Improvements, or the Improvements, including, without limitation, the
use of any streets, ways, alleys, vaults or strips of land adjoining,
abutting, adjacent or contiguous to the Land and (ii) all permits,
licenses and rights, whether or not of record, appurtenant to such
Land.
"Available Commitment" shall have the meaning specified in
Section 1.1 of the Credit Agreement.
"Base Amount" shall have the meaning specified in Section 10.1 of
the Lease.
"Basic Rent" shall mean, the sum of (i) the Loan Basic Rent and
(ii) the Lessor Basic Rent, calculated as of the applicable date on
which Basic Rent is due.
"Basic Term" shall have the meaning specified in Section 2.2 of
the Lease.
"Basic Term Commencement Date" shall have the meaning specified
in Section 2.2 of the Lease.
"Basic Term Expiration Date" shall have the meaning specified in
Section 2.2 of the Lease.
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"Bill of Sale" shall mean a Bill of Sale regarding Equipment in
form and substance satisfactory to the Holder and the Agent.
"Borrowing Date" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Business Day" shall mean a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina,
Dallas, Texas, Los Angeles, California, San Francisco, California, New
York, New York or Portland, Oregon, are authorized or required by law
to close; provided, however, that when used in connection with a Loan
bearing interest based on the Eurodollar Rate, the term "Business Day"
shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
"Capital Lease" means any lease of property (whether real,
personal or mixed) which would, in accordance with GAAP, be required
to be classified and accounted for on the books of the lessee as a
capital lease.
"Casualty" shall mean any damage or destruction of all or any
portion of a Property as a result of a fire or other casualty.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as
amended by the Superfund Amendments and Reauthorization Act of 1986.
"Certificate" shall mean a Certificate in favor of the Holder
regarding the Holder Commitment of the Holder issued pursuant to the
terms and conditions of the Trust Agreement in favor of the Holder.
"Certifying Party" shall have the meaning specified in Section
26.1 of the Lease.
"Change in Control" means the acquisition by any Person, or two
or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of
1934, as amended) of outstanding shares of voting stock of Lessee
representing in excess of 50% of voting control of Company, which
Person or Persons have beneficial ownership of less than 5% of the
outstanding shares of voting stock of Lessee as of the date of the
Participation Agreement.
"Claims" shall mean any and all obligations, liabilities, losses,
actions, suits, penalties, claims, demands, costs and expenses
(including, without limitation, reasonable attorney's fees and
expenses) of any nature whatsoever.
"Closing Date" shall mean the Initial Closing Date and each
Property Closing Date.
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"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute hereto.
"Collateral" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"Commitment" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"Commitment Fee Payment Date" shall mean each Specified Interest
Payment Date and the last day of the Commitment Period, or such
earlier date as the Commitments shall terminate as provided in the
Credit Agreement.
"Commitment Fee Rate" shall mean, with respect to the
Commitments, a rate equal to 15 basis points (0.15%) per annum for the
Commitment Period.
"Commitment Period" shall mean the period from the Initial
Closing Date to and including the Construction Period Termination
Date, or such earlier date as the Commitments shall terminate as
provided in the Credit Agreement.
"Company" shall have the meaning specified in Section 7.3 of the
Participation Agreement.
"Completion" shall mean, with respect to a Property, such time as
final completion of the Improvements on such Property has been
achieved in accordance with the Plans and Specifications, the Agency
Agreement and/or the Lease, and in compliance with all material Legal
Requirements and Insurance Requirements and (unless not required in
connection with the construction, renovation and/or modification of
Improvements on Improved Property) a certificate of occupancy has been
issued with respect to such Property by the appropriate governmental
entity.
"Completion Date" shall mean, with respect to a Property, the
earlier of (i) the date on which Completion for such Property has
occurred and (ii) the Construction Period Termination Date.
"Condemnation" shall mean any taking or sale of the use, access,
occupancy, easement rights or title to any Property or any part
thereof, wholly or partially (temporarily or permanently), by or on
account of any actual or threatened eminent domain proceeding or other
taking of action by any Person having the power of eminent domain,
including an action by a Governmental Authority to change the grade
of, or widen the streets adjacent to, any Property or alter the
pedestrian or vehicular traffic flow to any Property so as to result
in a change in access to such Property, or by or on account of an
eviction by paramount title or any transfer made in lieu of any such
proceeding or action.
"Construction Advance" shall mean an advance of funds to pay
Property Costs and other amounts related thereto with respect to
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Unimproved Property pursuant to Section 5.4 or 5.5 of the
Participation Agreement.
"Construction Agent" shall mean Fred Meyer, Inc., a Delaware
corporation, as construction agent under the Agency Agreement.
"Construction Budget" shall mean, as to any Property, the
aggregate of Land acquisition costs and the estimated cost of
constructing and developing any Improvements, on a Property by
Property basis, as determined by the Construction Agent or the Lessee,
as the case may be, in its reasonable, good faith judgment, specifying
the acquisition cost for Land and the projected hard costs relating to
Improvements and soft costs relating to Improvements.
"Construction Commencement Date" shall mean, with respect to
Improvements, the date on which construction of such Improvements
commences pursuant to the Agency Agreement.
"Construction Period" shall mean, with respect to a Property, the
period commencing on the Construction Commencement Date for such
Property and ending on the Completion Date for such Property.
"Construction Period Property" shall have the meaning specified
in Section 1.1 of the Credit Agreement.
"Construction Period Termination Date" shall mean the second
annual anniversary of the Initial Closing Date, as such date may be
extended for up to six (6) additional months to the extent that a
delay in construction is caused by a Force Majeure Event.
"Control" shall mean (including the correlative meanings of the
terms "controlled by" and "under common control with"), as used with
respect to any Person, the possession directly or indirectly, of the
power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities or
by contract or otherwise.
"Co-Owner Trustee" shall have the meaning specified in Section
9.2 of the Trust Agreement.
"Credit Agreement" shall mean the Credit Agreement, dated as of
the Initial Closing Date, among the Lessor, the Agent and the Lenders,
as specified therein.
"Credit Agreement Default" shall mean any event or condition
which, with the lapse of time or the giving of notice, or both, would
constitute a Credit Agreement Event of Default.
"Credit Agreement Event of Default" shall mean any event or
condition defined as an "Event of Default" in Section 6 of the Credit
Agreement.
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"Credit Documents" shall have the meaning specified in Section
1.1 of the Credit Agreement.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, whether or not
evidenced by bonds, debentures, notes or similar instruments, (b) all
obligations of such Person as lessee under Capital Leases which have
been recorded as liabilities on a balance sheet of such Person, (c)
all obligations of such Person to pay the deferred purchase price of
property or services (other than current accounts payable in the
ordinary course of business), (d) all indebtedness secured by a Lien
on the property of such Person, whether or not such indebtedness shall
have been assumed by such Person (it being understood that if such
Person has not assumed or otherwise become personally liable for any
such indebtedness, the amount of the Debt of such Person in connection
therewith shall be limited to the lesser of the face amount of such
indebtedness or the fair market value of all property of such Person
securing such indebtedness), (e) all obligations, contingent or
otherwise, with respect to the face amount of all letters of credit
(whether or not drawn) and banker's acceptances issued for the account
of such Person, (f) all obligations of such Person in respect of
Hedging Arrangements, (g) all Suretyship Liabilities of such Person
and (h) all Debt (as defined above) of any partnership in which such
Person is a general partner. The amount of the Debt of any Person in
respect of Hedging Arrangements shall be deemed to be the unrealized
net loss position of such Person thereunder (determined for each
counterparty individually, but netted for all Hedging Arrangements
maintained with such counterparty).
"Deed" shall mean a special or limited warranty deed regarding
Land and/or Improvements in form and substance satisfactory to the
Owner Trustee and the Agent.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of
Default.
"Employee Benefit Plan" or "Plan" shall mean an employee benefit
plan (within the meaning of Section 3(3) of ERISA, including any
Multiemployer Plan), or any "plan" as defined in Section 4975(e)(1) of
the Code and as interpreted by the Internal Revenue Service and the
Department of Labor in rules, regulations, releases or bulletins in
effect on any Closing Date.
"Environmental Claims" shall mean any investigation, notice,
violation, demand, allegation, action, suit, injunction, judgment,
order, consent decree, penalty, fine, lien, proceeding, or claim
(whether administrative, judicial, or private in nature) arising (a)
pursuant to, or in connection with, an actual or alleged violation of,
any Environmental Law, (b) in connection with any Hazardous Substance,
(c) from any abatement, removal, remedial, corrective, or other
response action in connection with a Hazardous Material, Environmental
Law, or other order of a
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Tribunal or (d) from any actual or alleged damage, injury, threat, or
harm to health, safety, natural resources, or the environment.
"Environmental Laws" shall mean any Law, permit, consent,
approval, license, award, or other authorization or requirement of any
Tribunal relating to emissions, discharges, releases, threatened
releases of any Hazardous Substance into ambient air, surface water,
ground water, publicly owned treatment works, septic system, or land,
or otherwise relating to the handling, storage, treatment, generation,
use, or disposal of Hazardous Substances, pollution or to the
protection of health or the environment, including without limitation
CERCLA, the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901,
et seq., and state statutes analogous thereto.
"Environmental Violation" shall mean any activity, occurrence or
condition that violates or threatens (if the threat requires
remediation under any Environmental Law and is not remediated during
any grace period allowed under such Environmental Law) to violate or
results in or threatens (if the threat requires remediation under any
Environmental Law and is not remediated during any grace period
allowed under such Environmental Law) to result in noncompliance with
any Environmental Law.
"Equipment" shall mean equipment, apparatus, furnishings,
fittings and personal property of every kind and nature whatsoever
purchased, leased or otherwise acquired using the proceeds of the
Loans or the Holder Advance by the Construction Agent, the Lessee or
the Lessor as specified or described in either a Requisition or a
Lease Supplement, whether or not now or subsequently attached to,
contained in or used or usable in any way in connection with any
operation of any Improvements or other improvements to Land.
"Equipment Schedule" shall mean (a) each Equipment schedule
attached to the applicable Requisition and (b) each Equipment Schedule
attached to the applicable Lease Supplement as Schedule I-A.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall mean each entity required to be
aggregated with any Lessee pursuant to the requirements of Section
414(b) or (c) of the Code.
"Eurocurrency Reserve Requirements" shall have the meaning
specified in Section 1.1 of the Credit Agreement.
"Eurodollar Holder Advance" shall mean the Holder Advance bearing
a Holder Yield based on the Eurodollar Rate.
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"Eurodollar Rate" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Eurodollar Reserve Rate" shall have the meaning specified in
Section 1.1 of the Credit Agreement.
"Event of Default" shall mean a Lease Event of Default, an Agency
Agreement Event of Default or a Credit Agreement Event of Default.
"Excepted Payments" shall mean: (a) all indemnity payments
(including indemnity payments made pursuant to Section 13 of the
Participation Agreement), whether made by adjustment to Basic Rent or
otherwise, to which the Owner Trustee, the Holder or any of their
respective Affiliates, agents, officers, directors or employees is
entitled;
(b) any amounts (other than Basic Rent, Termination Value, or
Purchase Option Price) payable under any Operative Agreement to
reimburse the Owner Trustee, the Trust Company, the Holder or any of
their respective Affiliates (including the reasonable expenses of the
Owner Trustee, the Trust Company and the Holder incurred in connection
with any such payment) for performing or complying with any of the
obligations of the Lessee under and as permitted by any Operative
Agreement;
(c) any amount payable to the Holder by any transferee of such
interest of the Holder as the purchase price of the Holder's interest
in the Trust Estate (or a portion thereof);
(d) any insurance proceeds (or payments with respect to risks
self-insured or policy deductibles) under liability policies other
than such proceeds or payments payable to the Agent;
(e) any insurance proceeds under policies maintained by the
Owner Trustee or the Holder;
(f) Transaction Expenses or other amounts or expenses paid or
payable to or for the benefit of the Owner Trustee or the Holder;
(g) all right, title and interest of the Holder or the Owner
Trustee to any Property or any portion thereof or any other property
to the extent any of the foregoing has been released from the Liens of
the Security Documents and the Lease pursuant to the terms thereof;
(h) upon termination of the Credit Agreement pursuant to the
terms thereof, all remaining property covered by the Lease or Security
Documents;
(i) all payments in respect of the Holder Yield;
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(j) any payments in respect of interest to the extent
attributable to payments referred to in clauses (a) through (i) above;
and
(k) any rights of either the Owner Trustee or Trust Company to
demand, collect, sue for or otherwise receive and enforce payment of
any of the foregoing amounts.
"Excepted Rights" shall mean the rights retained by the Owner
Trustee pursuant to Section 8.2(a)(i) of the Credit Agreement and all
right, title and interest of Owner Trustee in the Shared Rights.
"Excess Proceeds" shall mean the excess, if any, of the aggregate
of all awards, compensation or insurance proceeds payable in
connection with a Casualty or Condemnation over the Termination Value
paid by the Lessee pursuant to the Lease with respect to such Casualty
or Condemnation.
"Excluded Taxes" shall have the meaning specified in Section
13.2(e) of the Participation Agreement.
"Exemption Agreement" shall have the meaning specified in Section
12.2(e) of the Participation Agreement.
"Exemption Representation" shall have the meaning specified in
Section 13.2(e) of the Participation Agreement.
"Expiration Date" shall mean the Basic Term Expiration Date or
the last day of the Extended Term, if applicable.
"Expiration Date Election Notice" shall have the meaning
specified in Section 20.2 of the Lease.
"Expiration Date Purchase Option" shall mean the Lessee's option
to purchase all (but not less than all) of the Properties on the
Expiration Date.
"Extended Term" shall mean the five year period which immediately
follows the end of the Basic Term and expires on May 5, 2005 with
respect to which Lessee has exercised its Renewal Option pursuant to
Section 21.1 of the Lease.
"Facility" shall mean a facility used for the treatment, storage
or disposal of Hazardous Substances.
"Fair Market Sales Value" shall mean, with respect to any
Property, the amount, which in any event, shall not be less than zero,
that would be paid in cash in an arms-length transaction between an
informed and willing purchaser and an informed and willing seller,
neither of whom is under any compulsion to purchase or sell,
respectively, such Property. Fair Market Sales Value of any Property
shall be determined based on the assumption that, except for purposes
of Section 17 of the Lease, such Property is in the condition and
state of repair required under
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Section 10.1 of the Lease and the Lessee is in compliance with the
other requirements of the Operative Agreements.
"Fixtures" shall mean all fixtures relating to the Improvements,
including all components thereof, located in or on the Improvements,
together with all replacements, modifications, alterations and
additions thereto.
"FM Trust 1995-1" shall mean the grantor trust created pursuant
to the terms and conditions of the Trust Agreement.
"Force Majeure Event" shall mean any event beyond the control of
the Construction Agent, including, but not limited to, strikes,
lockouts, adverse soil conditions, acts of God, adverse weather
conditions, inability to obtain labor or materials, governmental
activities, civil commotion and enemy action; but excluding any event,
cause or condition that results from the Construction Agent's
financial condition.
"GAAP" shall mean the principles of accounting set forth in
pronouncements of the Financial Accounting standards Board, the
American Institute of Certified Public Accountants, as such principles
are from time to time supplemented and amended.
"Governmental Action" shall mean all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances,
orders, judgments, written interpretations, decrees, licenses,
exemptions, publications, filings, notices to and declarations of or
with, or required by, any Governmental Authority, or required by any
Legal Requirement, and shall include, without limitation, all
environmental and operating permits and licenses that are required for
the contemplated use, occupancy, zoning and operations of any
Property.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Ground Lease" shall mean a ground lease respecting any Property
owned by Lessee or a wholly-owned Subsidiary of Lessee in form and
substance satisfactory to Lessor (i) having a 99 year term and
payments set at $1.00 per year or (ii) subject to such other terms and
conditions as are reasonably satisfactory to Lessor, Lessee and the
Agent.
"Hedging Arrangement" means any interest rate swap, cap or collar
agreement, currency swap agreement, commodity swap agreement or other
arrangement designed to hedge interest rate and/or currency risk or
changes in commodity prices.
"Hazardous Substance" shall mean any of the following: (i) any
petroleum or petroleum product, explosives, radioactive materials,
asbestos, formaldehyde, polychlorinated biphenyls,
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lead and radon gas; (ii) any substance, material, product, derivative,
compound or mixture, mineral, chemical, waste, gas, medical waste, or
pollutant, in each case whether naturally occurring, man-made or the
by-product of any process, that is toxic, harmful or hazardous to the
environment or human health or safety as determined in accordance with
any Environmental Law; or (iii) any substance, material, product,
derivative, compound or mixture, mineral, chemical, waste, gas,
medical waste or pollutant that would support the assertion of any
claim under any Environmental Law, whether or not defined as hazardous
as such under any Environmental Law. The term "Hazardous Substances"
shall not include (a) cleaning products, landscape fertilizers and
other products in the ordinary quantities that are customarily used in
the ordinary course of business of operating and maintaining
commercial properties or (b) products held in sealed containers for
sale to customers.
"Holder" shall mean NationsBank of Texas, N.A. and the several
banks and other financial institutions which are from time to time
holders of Certificates in connection with the FM Trust 1995-1.
"Holder Advance" shall have the meaning specified in section 2 of
the Participation Agreement.
"Holder Amount" shall mean as of any date, the aggregate amount
of the Holder Advance made by the Holder to the Trust Estate pursuant
to Section 2 of the Participation Agreement and Section 3.1 of the
Trust Agreement less any payments of the Holder Advance received by
the Holder pursuant to Section 3.4 of the Trust Agreement.
"Holder Applicable Margin" shall mean the Applicable Margin plus,
in each case, .575%.
"Holder Commitment" shall mean $3,000,000.
"Holder Overdue Rate" shall mean the lesser of (i) the Overdue
Interest, as defined in the Credit Agreement, plus .575% and (ii) the
highest rate permitted by applicable law.
"Holder Property Cost" shall mean with respect to each Property,
at any date of determination, an amount equal to the product of (a) a
fraction, the numerator of which is the Property Cost for such
individual Property and the denominator of which is the aggregate
Property Cost for all Properties which are then subject to the terms
and conditions of the Operative Agreements multiplied by (b) the
outstanding Holder Advance.
"Holder Up-Front Fee" shall have the meaning specified in Section
9.4 of the Participation Agreement.
"Holder Yield" shall mean the Eurodollar Reserve Rate plus the
Holder Applicable Margin; provided, however, (i) upon delivery of the
notice described in Section 3.7(c) of the Trust
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Agreement, the outstanding Holder Advance of the Holder shall bear a
yield at the ABR applicable from time to time from and after the dates
and during the periods specified in Section 3.7(c) of the Trust
Agreement, and (ii) upon the delivery by the Holder of the notice
described in Section 3.8(c) of the Trust Agreement, the Holder Advance
of the Holder shall bear a yield at the ABR applicable from time to
time after the dates and during the periods specified in Section
3.8(c) of the Trust Agreement.
"Impositions" shall mean, except to the extent described in the
following sentence, any and all liabilities, losses, expenses, costs,
charges and Liens of any kind whatsoever for fees, taxes, levies,
imposts, duties, charges, assessments or withholdings ("Taxes"),
including (i) real and personal property taxes, including personal
property taxes on any property covered by the Lease that is classified
by Governmental Authorities as personal property, and real estate or
ad valorem taxes in the nature of property taxes; (ii) sales taxes,
use taxes and other similar taxes (including rent taxes and
intangibles taxes); (iii) any excise taxes; (iv) real estate transfer
taxes, conveyance taxes, stamp taxes and documentary recording taxes
and fees; (v) taxes that are or are in the nature of franchise,
income, value added, privilege and doing business taxes, license and
registration fees; (vi) assessments on any Property, including all
assessments for public improvements or benefits, whether or not such
improvements are commenced or completed within the Term; and (vii) any
tax, Lien, assessment or charge asserted, imposed or assessed by the
PBGC or any governmental authority succeeding to or performing
functions similar to, the PBGC; and in each case all interest,
additions to tax and penalties thereon, which at any time prior to,
during or with respect to the Term or in respect of any period for
which the Lessee shall be obligated to pay Supplemental Rent, may be
levied, assessed or imposed by any Governmental Authority upon or with
respect to (a) any Property or any part thereof or interest therein;
(b) the leasing, financing, refinancing, demolition, construction,
substitution, subleasing, assignment, control, condition, occupancy,
servicing, maintenance, repair, ownership, possession, activity
conducted on, delivery, insuring, use, operation, improvement,
transfer of title, return or other disposition of such Property or any
part thereof or interest therein; (c) the Notes or other indebtedness
with respect to any Property or any part thereof or interest therein;
(d) the rentals, receipts or earnings arising from any Property or any
part thereof or interest therein; (e) the Operative Agreements, the
performance thereof, or any payment made or accrued pursuant thereto;
(f) the income or other proceeds received with respect to any Property
or any part thereof or interest therein upon the sale or disposition
thereof; (g) any contract (including the Agency Agreement) relating to
the construction, acquisition or delivery of the Improvements or any
part thereof or interest therein; (h) the issuance of the Notes; or
(i) otherwise in connection with the transactions contemplated by the
Operative Agreements.
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The term "Imposition" shall not mean or include:
(i) Taxes and impositions (other than Taxes that are, or
are in the nature of, sales, use, rental, value added, transfer
or property taxes) that are imposed on a Indemnified Person
(other than Lessor) by the United States federal government that
are based on or measured by the net income (including taxes based
on capital gains, and minimum taxes or any tax imposed by Code
Section 59A) of such Indemnified Person; provided, that this clause (i)
shall not be interpreted to prevent a payment from being made on
an After Tax Basis if such payment is otherwise required to be so
made;
(ii) Taxes and impositions (other than Taxes that are, or
are in the nature of, sales, use, rental, value added, transfer
or property taxes) that are imposed on any Indemnified Person
(other than Lessor) by any state or local jurisdiction or taxing
authority within any state or local jurisdiction and that are in
the nature of franchise taxes or are based upon or measured by
the overall gross or net income or overall gross or net receipts
of such Indemnified Person except that this clause (ii) shall not
apply to (and thus shall not exclude) any such Taxes imposed on
an Indemnified Person by a state (or any local taxing authority
thereof or therein) to the extent that (A) such Taxes would not
have been imposed but for the location, possession or use of any
Property in such jurisdiction, and (B) in the case of Taxes based
upon overall gross or net income or overall gross or net
receipts, such Taxes would not have been imposed had the
transactions described in the Operative Agreements been
structured as a standard financing arrangement (i.e, with the
Indemnity Provider (x) being the borrower of funds advanced by
the Lenders and the Holder, (y) holding title to each Property,
and (z) being treated as the owner of each Property for both
financial accounting and federal income tax purposes) rather than
as a tax retention operating lease (it being understood that any
such indemnity would be payable only to the extent of the net
harm incurred by such Indemnified Person from such Taxes, taking
into account any incremental tax benefit in another tax
jurisdiction resulting from payment of such Taxes); provided,
that this clause (ii) shall not be interpreted to prevent a
payment from being made on an After Tax Basis if such payment is
otherwise required to be so made;
(iii) any Tax or imposition to the extent, but only to such
extent, it relates to any act, event or omission that occurs
after the termination of the Lease and redelivery or sale of the
property in accordance with the terms of the Lease (but not any
Tax or imposition that relates to such termination, redelivery or
sale and/or to any period prior to such termination, redelivery
or sale); or
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(iv) any Taxes which are imposed on an Indemnified Person as
a result of the gross negligence or wilful misconduct of such
Indemnified Person itself (as opposed to gross negligence or
wilful misconduct imputed to such Indemnified Person), but not
Taxes imposed as a result of ordinary negligence of such
Indemnified Person;
Any Tax or imposition excluded from the defined term "Imposition" in
any one of the foregoing clauses (i) through (v) shall not be
construed as constituting an Imposition by any provision of any other
of the aforementioned clauses.
"Improved Property" shall mean a Property acquired by the Lessor
which contains Improvements that are suitable as of the Property
Closing Date for occupancy by the Lessee and the operation by the
Lessee of a Store therein.
"Improvements" shall mean, with respect to the construction,
renovation and/or Modification of a Store, all buildings, structures,
Fixtures, and other improvements of every kind existing at any time
and from time to time on or under the Land purchased, leased or
otherwise acquired using the proceeds of the Loans or the Holder
Advance, together with any and all appurtenances to such buildings,
structures or improvements, including sidewalks, utility pipes,
conduits and lines, parking areas and roadways, and including all
Modifications and other additions to or changes in the Improvements at
any time, including without limitation (a) any Improvements existing
as of the Property Closing Date as such Improvements may be referenced
on the applicable Requisition and (b) any Improvements made subsequent
to such Property Closing Date.
"Incorporated Covenants" shall have the meaning specified in
Section 28.1 of the Lease Agreement.
"Indebtedness" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"Indemnified Person" shall mean the Lessor, the Owner Trustee, in
its individual and its trust capacity, the Agent, the Holder, the
Lenders and their respective successors, assigns, directors,
shareholders, partners, officers, employees, agents and Affiliates.
"Indemnity Provider" shall mean, respecting each Property, the
Construction Agent from the date of the Participation Agreement to and
including the Basic Term Commencement Date for such Property and the
Lessee for the duration of the Term for such Property.
"Initial Closing Date" shall mean the date of the Participation
Agreement.
"Initial Construction Advance" shall mean any initial Advance
(which may be either a Construction Advance or a
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Modification Advance) to pay for: (i) Property Costs for construction
of any Improvements; (ii) the Property Costs of restoring or repairing
any Property which is required to be restored or repaired in
accordance with Section 15.1(e) of the Lease; and (iii) the costs of
any Modifications in accordance with Section 11.1 of the Lease.
"Insurance Requirements" shall mean all terms and conditions of
any insurance policy either required by the Lease to be maintained by
the Lessee or required by the Agency Agreement to be maintained by the
Construction Agent, and all requirements of the issuer of any such
policy and, regarding self insurance, any other requirements of
Lessee.
"Interest Period" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, together with the rules and regulations promulgated
thereunder.
"Land" shall mean a parcel of real property described on (a) the
Requisition issued by the Construction Agent on the Property Closing
Date relating to such parcel and (b) Schedule I-C to each applicable
Lease Supplement executed and delivered in accordance with the
requirements of Section 2.4 of the Lease.
"Law" shall mean any statute, law, ordinance, regulation, rule,
order, writ, injunction or decree of any Tribunal.
"Lease" or "Lease Agreement" shall mean the Lease Agreement (Tax
Retention Operating Lease) dated as of the Initial Closing Date,
between the Lessor and the Lessee, together with any Lease Supplements
thereto, as such Lease Agreement may from time to time be
supplemented, amended or modified in accordance with the terms
thereof.
"Lease Default" shall mean any event or condition which, with the
lapse of time or the giving of notice, or both, would constitute a
Lease Event of Default.
"Lease Event of Default" shall have the meaning specified in
Section 17.1 of the Lease.
"Lease Supplement" shall mean each Lease Supplement substantially
in the form of Exhibit A to the Lease, together with all attachments
and schedules thereto, as such Lease Supplement may be supplemented,
amended or modified from time to time.
"Lease Term Debt Percentage" shall mean, as of the date of
determination, a percentage equal to 1.000 minus the Lease Term Holder
Percentage.
"Lease Term Holder Percentage" shall mean, as of the date of
determination, a percentage equal to $3,000,000 divided by the
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aggregate Property Costs for all Properties after the Completion
thereof and with respect to any Improved Property, after the
acquisition thereof.
"Legal Requirements" shall mean as to any Person all foreign,
Federal, state, county, municipal and other governmental statutes,
laws, rules, orders, regulations, ordinances, judgments, decrees and
injunctions affecting such Person and all foreign, Federal, state,
county, municipal and other governmental statutes, laws, rules,
orders, regulations, ordinances, judgments, decrees and impositions
affecting any Property or the taxation, demolition, construction, use
or alteration of such Property, whether now or hereafter enacted and
in force, including any that require repairs, modifications or
alterations in or to any Property or in any way limit the use and
enjoyment thereof (including all building, zoning and fire codes and
the Americans with Disabilities Act of 1990, 42 U.S.C. Section 12101 et.
seq., and any other similar Federal, state or local laws or ordinances
and the regulations promulgated thereunder) and any that may relate to
environmental requirements (including all Environmental Laws), and all
permits, certificates of occupancy, licenses, authorizations and
regulations relating thereto, and all covenants, agreements,
restrictions and encumbrances contained in any instruments which are
either of record or known to the Lessee affecting any Property, the
Appurtenant Rights and any easements, licenses or other agreements
entered into pursuant to Section 12.2 of the Lease.
"Lender Commitment Fee" shall have the meaning specified in
Section 9.5(a) of the Participation Agreement.
"Lender Financing Statements" shall mean UCC financing statements
and fixture filings appropriately completed and executed for filing in
the applicable jurisdiction in order to procure a security interest in
favor of the Agent in any Equipment or in any Improvements.
"Lender Up-Front Fee" shall have the meaning specified in Section
9.4 of the Participation Agreement.
"Lenders" shall mean the several banks and other financial
institutions from time to time party to the Credit Agreement.
"Lessee" shall have the meaning set forth in the Lease.
"Lessor" shall mean the Owner Trustee, not in its individual
capacity, but as Lessor under the Lease.
"Lessor Basic Rent" shall mean the scheduled Holder Yield due on
the Holder Advance on any Specified Interest Payment Date pursuant to
the Trust Agreement (but not including interest on overdue amounts
under the Trust Agreement or otherwise).
"Lessor Financing Statements" shall mean UCC financing statements
and fixture filings appropriately completed and
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executed for filing in the applicable jurisdictions in order to
protect the Lessor's interest under the Lease to the extent the Lease
is a security agreement or a mortgage.
"Lessor Lien" shall mean any Lien, true lease or sublease or
disposition of title arising as a result of (a) any claim against the
Lessor or Trust Company, in its individual capacity, not resulting
from the transactions contemplated by the Operative Agreements, (b)
any act or omission of the Lessor or Trust Company, in its individual
capacity, which is not required by the Operative Agreements or is in
violation of any of the terms of the Operative Agreements, (c) any
claim against the Lessor or Trust Company, in its individual capacity,
with respect to Taxes or Transaction Expenses against which the Lessee
is not required to indemnify Lessor or Trust Company, in its
individual capacity, pursuant to Section 13 of the Participation
Agreement or (d) any claim against the Lessor arising out of any
transfer by the Lessor of all or any portion of the interest of the
Lessor in the Properties, the Trust Estate or the Operative Agreements
other than the transfer of title to or possession of any Properties by
the Lessor pursuant to and in accordance with the Lease, the Credit
Agreement or the Participation Agreement or pursuant to the exercise
of the remedies set forth in Article XVII of the Lease.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien, option or charge of any kind.
"Limited Power of Attorney" shall mean the Limited Power of
Attorney dated as of the Initial Closing Date given by the Owner
Trustee in favor of the Company and in form and substance satisfactory
to the Agent, the Holder, the Owner Trustee and the Company.
"Limited Recourse Amount" shall mean with respect to the
Properties on an aggregate basis, an amount equal to the sum of the
Termination Values with respect to all of the Properties on each
Payment Date, less the Maximum Residual guarantee Amount as of such
date with respect to the Properties.
"Loans" shall have the meaning specified in Section 2.1 of the
Credit Agreement.
"Loan Basic Rent" shall mean the interest due on the Loans on any
Specified Interest Payment Date pursuant to the Credit Agreement (but
not including interest on (i) any such Loan prior to the Basic Term
Commencement Date with respect to the Property to which such Loan
relates or (ii) any overdue amounts under Section 2.7(b) of the Credit
Agreement or otherwise).
"Loan Property Cost" shall have the meaning specified in Section
1.1 of the Credit Agreement.
"Majority Lenders" shall have the meaning specified in Section
1.1 of the Credit Agreement.
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"Marketing Period" shall mean, if the Lessee have not given the
Expiration Date Election Notice in accordance with Section 20.2 of the
Lease, the period commencing on the date 90 days prior to the
applicable Expiration Date and ending on such Expiration Date.
"Material Adverse Effect" shall mean a material adverse effect on
(a) the ability of the Lessee or any Subsidiary to perform its
respective obligations under any Operative Agreement to which it is a
party, (b) the validity or enforceability of any Operative Agreement
or the rights and remedies of the Agent, the Lenders, the Holder, or
the Lessor thereunder, (c) the validity, priority or enforceability of
any Lien on any Property created by any of the Operative Agreements,
or (d) the value, utility or useful life of any Property or the use,
or ability of the Lessee to use, any Property for the purpose for
which it was intended.
"Material Subsidiary" means any Subsidiary of Lessee which either
(a) has assets which constitute 5% or more of the consolidated assets
of Lessee and its Subsidiaries or (b) has revenues during its most
recently-ended fiscal year which constitute more than 5% of the
consolidated revenues of Lessee and its Subsidiaries during the most
recently-ended fiscal year of Lessee.
"Maturity Date" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Maximum Property Cost" shall mean the aggregate amount of the
Property Costs for all Properties subject to the Lease as of the
applicable determination date.
"Maximum Residual Guarantee Amount" shall mean an amount equal to
the product of the aggregate Property Cost for all of the Properties
times 89 1/2%.
"Modification Advance" shall mean an advance of funds to pay
Property Costs and other amounts related thereto with respect to
Improved Property pursuant to Section 5.4 or 5.5 of the Participation
Agreement.
"Modifications" shall have the meaning specified in Section
11.1(a) of the Lease.
"Mortgage Instrument" shall mean any mortgage, deed of trust or
any other instrument executed by the Owner Trustee in favor of the
Agent and evidencing a Lien on a Property, in form and substance
substantially in the form attached as Exhibit J to the Participation
Agreement.
"Multiemployer Plan" shall mean any plan described in Section
4001(a)(3) of ERISA to which contributions are or have been made or
required by the Lessee or any of its Subsidiaries or ERISA Affiliates.
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"Multiple Employer Plan" shall mean a plan to which the Lessee or
any ERISA Affiliate and at least one other employer other than an
ERISA Affiliate is making or accruing an obligation to make, or has
made or accrued an obligation to make, contributions.
"Net Proceeds" shall mean all amounts paid in connection with any
Casualty or Condemnation, and all interest earned thereon, less the
expense of claiming and collecting such amounts, including all costs
and expenses in connection therewith for which the Agent or Lessor are
entitled to be reimbursed pursuant to the Lease.
"1994 Credit Agreement" shall have the meaning specified in
Section 28.1 of the Lease.
"Notes" shall have the meaning specified in Section 1.1 of the
Credit Agreement.
"Occupational Safety and Health Law" shall mean the Occupational
Safety and Health Act of 1970 and any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree
regulating or relating to, or imposing liability or standards of
conduct concerning, employee health and/or safety, as now or at any
time hereafter in effect.
"Officer's Certificate" shall mean a certificate signed by any
individual holding the office of vice president or higher, which
certificate shall certify as true and correct the subject matter being
certified to in such certificate.
"Operative Agreements" shall mean the following: the
Participation Agreement, the Agency Agreement, the Trust Agreement,
the Certificates, the Credit Agreement, the Notes, the Lease (and a
memorandum thereof in a form reasonably acceptable to the Agent), each
Lease Supplement (and a memorandum thereof in a form reasonably
acceptable to the Agent), the Security Agreement and each Mortgage
Instrument.
"Overdue Rate" shall mean (i) with respect to Basic Rent, and any
other amount owed under or with respect to the Credit Agreement or the
Security Documents, the rate specified in Section 2.7(b) of the Credit
Agreement, (ii) with respect to Lessor Basic Rent, the Holder Yield
and any other amount owed under or with respect to the Trust
Agreement, the applicable rate specified in the Trust Agreement, and
(iii) with respect to any other amount, the amount specified in
Section 2.7(b) of the Credit Agreement.
"Owner Trustee" shall mean First Security Bank of Utah, N.A., not
individually, except as expressly stated in the various Operative
Agreements, but solely as Owner Trustee under the FM Trust 1995-1, and
any successor or replacement Owner Trustee expressly permitted under
the Operative Agreements.
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"Participation Agreement" shall mean the Participation Agreement
dated as of May 5, 1995, among the Lessee, the Owner Trustee, not in
its individual capacity except as expressly stated therein, the
Holder, the Lenders and the Agent, as such Participation Agreement may
be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof or of any other Operative Agreement.
"Payment Date" shall mean any Specified Interest Payment Date and
any date on which interest or Holder Yield in connection with a
prepayment of principal on the Loans or of the Holder Advance is due
under the Credit Agreement or the Trust Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
created by Section 4002(a) of ERISA or any successor thereto.
"Permitted Exceptions" shall mean:
(i) Liens of the types described in clauses (i), (ii) and
(v) of the definition of Permitted Liens;
(ii) Liens for Taxes not yet due; and
(iii) all encumbrances, exceptions, restrictions,
easements, rights of way, servitudes, encroachments and
irregularities in title, other than Liens which, in the
reasonable assessment of the Agent, do not materially impair
the use of the Property for its intended purpose.
"Permitted Liens" shall mean:
(i) the respective rights and interests of the parties to
the Operative Agreements as provided in the Operative Agreements;
(ii) the rights of any sublessee, assignee or other
transferee expressly permitted by the terms of the Lease;
(iii) Liens for Taxes that either are not yet due or are
being contested in accordance with the provisions of Section
13.1 of the Lease;
(iv) Liens arising by operation of law, materialmen's,
mechanics', workmen's, repairmen's, employees', carriers',
warehousemen's and other like Liens relating to the
construction of the Improvements or in connection with any
modifications or arising in the ordinary course of business
for amounts that either are not more than 30 days past due
or are being diligently contested in good faith by
appropriate proceedings, so long as such proceedings satisfy
the conditions for the continuation of proceedings to
contest Taxes set forth in Section 13.1 of the Lease;
A-22
(v) Liens of any of the types referred to in clause (iv)
above that have been bonded for not less than the full amount in
dispute (or as to which other security arrangements satisfactory
to the Lessor and the Agent have been made), which bonding (or
arrangements) shall comply with applicable Legal Requirements,
and shall have effectively stayed any execution or enforcement of
such Liens;
(vi) Liens arising out of judgments or awards with
respect to which appeals or other proceedings for review are
being prosecuted in good faith and for the payment of which
adequate reserves have been provided as required by GAAP or
other appropriate provisions have been made, so long as such
proceedings have the effect of staying the execution of such
judgments or awards and satisfy the conditions for the
continuation of proceedings set forth in Section 13.1 of the
Lease;
(vii) Liens in favor of municipalities to the extent
agreed to by the Lessor; and
(viii) Permitted Exceptions.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to title IV of ERISA (other
than a Multiemployer Plan), and to which the Company or any ERISA
Affiliate may have any liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063
of ERISA at any time during the preceding five years, or by reason of
being deemed to be a contributing sponsor under section 4069 of ERISA.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization, governmental authority or any other entity.
"Plans and Specifications" shall mean, with respect to
Improvements, the plans and specifications for such Improvements to be
constructed or already existing as such Plans and Specifications may
be amended, modified or supplemented from time to time.
"Prime Lending Rate" shall have the meaning specified in Section
1.1 of the Credit Agreement.
"Property" shall mean, with respect to each Store that is
acquired, constructed and/or renovated pursuant to the terms of the
Operative Agreements, the Land and each item of Equipment and the
various Improvements, in each case located on such Land.
"Property Acquisition Cost" shall mean the cost to Lessor to
purchase a Property on a Property Closing Date.
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"Property Closing Date" shall mean each date on which the Lessor
purchases or leases (pursuant to Ground Lease) a Property.
"Property Cost" shall mean with respect to a Property the
aggregate amount of Advances for such Property (as such amounts shall
be increased equally among all Properties respecting the Loans in
regard to Section 9.1 of the Participation Agreement extended from
time to time to pay for the Transaction Expenses, fees, expenses and
other disbursements referenced in Sections 9.1(a) and (b) of the
Participation Agreement).
"Purchase Notice" shall have the meaning given to such term in
Section 20.1 of the Lease.
"Purchase Option" shall have the meaning given to such term in
Section 20.1 of the Lease.
"Purchase Option Price" shall have the meaning given to such term
in Section 20.1 of the Lease.
"Recipient Taxes" shall have the meaning specified in Section
13.2(e) of the Participation Agreement.
"Release" shall mean any release, pumping, pouring, emptying,
injecting, escaping, leaching, dumping, seepage, spill, leak, flow,
discharge, disposal or emission of a Hazardous Substance.
"Renewal Option" shall have the meaning specified in Section 21.1
of the Lease.
"Rent" shall mean, collectively, the Basic Rent and the
Supplemental Rent, in each case payable under the Lease.
"Reportable Event" shall have the meaning specified in ERISA.
"Requested Funds" shall mean any funds requested by the Lessee or
the Construction Agent, as applicable, in accordance with Section 5 of
the Participation Agreement.
"Requirement of Law" shall have the meaning specified in Section
1.1 of the Credit Agreement.
"Requisition" shall have the meaning specified in Section 4.2 of
the Participation Agreement.
"Responsible Officer" shall mean the Chairman or Vice Chairman of
the Board of Directors, the Chairman or Vice Chairman of the Executive
Committee of the Board of Directors, the President, any Senior Vice
President or Executive Vice President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer, or any Assistant
Treasurer, except that when used with respect to the Trust Company or
the Owner Trustee, "Responsible Officer" shall also include the
Cashier, any Assistant Cashier,
A-24
any Trust Officer or Assistant Trust Officer, the Controller and any
Assistant Controller or any other officer of the Trust Company or the
Owner Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Scheduled Interest Payment Date" shall have the meaning
specified in Section 1.1 of the Credit Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended, together with the rules and regulations promulgated
thereunder.
"Security Agreement" shall mean the Security Agreement, dated as
of the Initial Closing Date between the Owner Trustee and the Agent.
"Security Documents" shall have the meaning specified in Section
1.1 of the Credit Agreement.
"Shared Rights" shall mean the rights retained by the Lessor, but
not to the exclusion of the Agent, pursuant to Section 8.2(a)(ii) of
the Credit Agreement.
"Specialized Equipment" shall mean Equipment which is not, and is
not intended to be, affixed to or a component of any of the various
Improvements or Land subject to the Operative Agreements.
"Specified Interest Payment Date" shall have the meaning
specified in Section 1.1 of the Credit Agreement.
"Store" means a combination supermarket and general merchandise
multidepartment store that is substantially similar to stores owned
and/or leased by the Lessee as of the Initial Closing Date.
"Subsidiary" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"Supplemental Rent" shall mean all amounts, liabilities and
obligations (other than Basic Rent) which the Lessee assumes or agrees
to pay to Lessor, the Holder, the Administrative Agent or any other
Person under the Lease or under any of the other Operative Agreements
including, without limitation, payments of Purchase Option Price,
Termination Value and the Maximum Residual Guarantee Amount and all
indemnification amounts, liabilities and obligations.
"Suretyship Liability" means any agreement, undertaking or other
contractual arrangement by which any Person guarantees, endorses or
otherwise becomes or is contingently liable upon (by
A-25
direct or indirect agreement, contingent or otherwise, to provide
funds for payment, to supply funds to or otherwise to invest in a
debtors or otherwise to assure a creditor against loss) any
indebtedness, obligation or other liability (including accounts
payable) of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of
dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Suretyship Liability
shall (subject to any limitation set forth therein) be deemed to be
the principal amount of the indebtedness, obligation or other
liability guaranteed thereby.
"Taxes" shall have the meaning specified in the definition of
Impositions; provided, solely for purposes of Section 13.2(e) of the
Participation Agreement "Taxes" shall have the meaning specified in
such Section 13.2(e).
"Term" shall mean the Basic Term and each Extended Term, if any.
"Termination Date" shall have the meaning specified in Section
16.2(a) of the Lease.
"Termination Event" shall mean (a) with respect to any Plan, the
occurrence of a Reportable Event or an event described in Section
4062(e) of ERISA, (b) the withdrawal of the Lessee or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it
was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan,
(c) the distribution of a notice of intent to terminate a Plan or
Multiemployer Plan pursuant to Section 4041(a)(2) or 4041A of ERISA,
(d) the institution of proceedings to terminate a Plan or
Multiemployer Plan by the PBGC under Section 4042 of ERISA, (e) any
other event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan or Multiemployer Plan, or (f) the complete or
partial withdrawal of the Lessee or any ERISA Affiliate from a
Multiemployer Plan.
"Termination Notice" shall have the meaning specified in Section
16.1 of the Lease.
"Termination Value" shall mean, as of any Payment Date, (a) with
respect to all Properties, an amount equal to the sum of (i) the
aggregate outstanding principal of the Notes, plus (ii) the aggregate
Holder Property Cost, in each case as of the applicable Payment Date
and (b) with respect to a particular Property, an amount equal to the
product of the Termination Value of all the Properties as of such
Payment Date times a fraction, the numerator of which is the Property
Cost as of such Payment Date allocable to the particular Property in
question and the denominator of which is the aggregate Property Cost
for all the Properties as of such Payment Date.
A-26
"Total Condemnation" shall mean a Condemnation that involves a
taking of Lessor's entire title to a Property.
"Transaction Expenses" shall mean all reasonable costs and
expenses incurred in connection with the preparation, execution and
delivery of the Operative Agreements and the transactions contemplated
by the Operative Agreements including without limitation:
(a) the reasonable fees, out-of-pocket expenses and
disbursements of counsel in negotiating the terms of the
Operative Agreements and the other transaction documents,
preparing for the closings under, and rendering opinions in
connection with, such transactions and in rendering other
services customary for counsel representing parties to
transactions of the types involved in the transactions
contemplated by the Operative Agreements;
(b) any and all other reasonable fees, charges or other
amounts payable to the Lenders, Agent, the Holder, the Owner
Trustee or any broker which arises under any of the Operative
Agreements;
(c) any other reasonable fee, out-of-pocket expenses,
disbursement or cost of any party to the Operative Agreements or
any of the other transaction documents; and
(d) any and all Taxes and fees incurred in recording or
filing any Operative Agreement or any other transaction document,
any deed, declaration, mortgage, security agreement, notice or
financing statement with any public office, registry or
governmental agency in connection with the transactions
contemplated by the Operative Agreement.
"Tribunal" shall mean any state, commonwealth, federal, foreign,
territorial, or other court or government body, subdivision agency,
department, commission, board, bureau or instrumentality of a
governmental body.
"Trust Agreement" shall mean the Trust Agreement dated as of the
Initial Closing Date between the Holder and the Owner Trustee.
"Trust Company" shall mean First Security Bank of Utah, N.A., in
its individual capacity, and any successor owner trustee under the
Trust Agreement in its individual capacity.
"Trust Estate" shall have the meaning specified in Section 2.2 of
the Trust Agreement.
"UCC Financing Statements" shall mean collectively the Lender
Financing Statements and the Lessor Financing Statements.
"Unfunded Amount" shall have the meaning specified in Section 3.2
of the Agency Agreement.
A-27
"Uniform Commercial Code" and "UCC" shall mean the Uniform
Commercial Code as in effect in any applicable jurisdiction.
"Unimproved Property" shall mean a Property acquired by the
Lessor which either consists entirely of Land or consists of Land and
Improvements but the existing Improvements are not suitable as of the
Property Closing Date for occupancy by the Lessee and the operation by
the Lessee of a Store therein.
"Up-Front Fee" shall mean the fee payable by Lessee to Lessor on
or prior to the Initial Closing Date pursuant to the terms and
conditions of Section 9.4 of the Participation Agreement.
"Voting Power" shall mean, with respect to securities issued by
any Person, the combined voting power of all securities of such person
which are issued and outstanding at the time of determination and
which are entitled to vote in the election of directors or such
Person, other than securities having such power only by reason of the
happening of a contingency.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E
of Title IV of ERISA.
"Work" shall mean the furnishing of labor, materials, components,
furniture, furnishings, fixtures, appliances, machinery, equipment,
tools, power, water, fuel, lubricants, supplies, goods and/or services
with respect to any Property.
LEASE SUPPLEMENT NO. 1
THIS LEASE SUPPLEMENT NO. 1 (this "Lease Supplement") dated as
of May 3, 1995 between FIRST SECURITY BANK OF UTAH, N.A., a national
banking association, not individually, but solely as Owner Trustee
under the FM Trust 1995-1, as lessor (the "Lessor"), and FRED MEYER,
INC., as lessee (the "Lessee").
WHEREAS, the Lessor is the owner or will be owner of the Property
described on Schedule I hereto (the "Leased Property") and wishes to
lease the same to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Definitions; Rules of Usage. For purposes of this
Lease Supplement, capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in Appendix A
to the Participation Agreement, dated as of May 3, 1995, among the
Lessee, the Lessor, not individually, except as expressly stated
therein, but solely as Owner Trustee under the FM Trust 1995-1,
NationsBank of Texas, N.A., as the Holder, the various banks and
banking institutions which are parties thereto from time to time and
NationsBank of Texas, N.A., as Agent for the Lenders.
SECTION 2. The Properties. Attached hereto as Schedule I is
the description of the Leased Property, with an Equipment Schedule
attached hereto as Schedule I-A, an Improvement Schedule attached
hereto as Schedule I-B and a legal description of the Land for such
Project attached hereto as Schedule I-C. Effective upon the execution
and delivery of this Lease Supplement by the Lessor and the Lessee,
the Leased Property shall be subject to the terms and provisions of
the Lease.
SECTION 3. Ratification; Incorporation by Reference. Except as
specifically modified hereby, the terms and provisions of the Lease
and the Operative Agreements are hereby ratified and confirmed and
remain in full force and effect. The Lease is hereby incorporated
herein by reference as though restated herein in its entirety.
SECTION 4. Original Lease Supplement. The single executed
original of this Lease Supplement marked "THIS COUNTERPART IS THE
ORIGINAL EXECUTED COUNTERPART" on the signature page thereof and
containing the receipt of the Agent therefor on or following the
signature page thereof shall be the original executed counterpart of
this Lease Supplement (the "Original Executed Counterpart"). To the
extent that this Lease Supplement constitutes chattel paper, as such
term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction, no security interest in this Lease
Supplement may be created through the transfer or
2
possession of any counterpart other than the Original Executed
Counterpart.
SECTION 5. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
OREGON.
SECTION 6. Counterpart Execution. This Lease Supplement may be
executed in any number of counterparts and by each of the parties
hereto in separate counterparts, all such counterparts together
constituting but one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Lease Supplement to be duly executed by an officer thereunto duly
authorized as of the date and year first above written.
FIRST SECURITY BANK OF UTAH, N.A.,
not individually, but solely as
Owner Trustee under the FM Trust
1995-1, as Lessor
By: C. SCOTT NIELSEN
------------------------------
Name: C. Scott Nielsen
----------------------------
Title: Asst. Vice President
---------------------------
FRED MEYER, INC., as Lessee
By: MICHAEL H. DON
------------------------------
Name: Michael H. Don
----------------------------
Title: Vice President/Treasurer
---------------------------
Receipt of this original counterpart of the foregoing Lease
Supplement is hereby acknowledged as the date hereof.
NATIONSBANK OF TEXAS, N.A., as Agent
By: WILLIAM GUFFEY
-------------------------------
Name: William Guffey
-----------------------------
Title: Vice President
----------------------------
SCHEDULE I
TO LEASE SUPPLEMENT NO. 1
SCHEDULE I-A
TO LEASE SUPPLEMENT NO. 1
(Equipment)
None
SCHEDULE I-B
TO LEASE SUPPLEMENT NO. 1
(Improvements)
SCHEDULE I-C
TO LEASE SUPPLEMENT NO. 1
(Land)
LEASE SUPPLEMENT NO. 2
THIS LEASE SUPPLEMENT NO. 2 (this "Lease Supplement") dated as
of May 3, 1995 between FIRST SECURITY BANK OF UTAH, N.A., a national
banking association, not individually, but solely as Owner Trustee
under the FM Trust 1995-1, as lessor (the "Lessor"), and FRED MEYER,
INC., as lessee (the "Lessee").
WHEREAS, the Lessor is the owner or will be owner of the Property
described on Schedule I hereto (the "Leased Property") and wishes to
lease the same to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Definitions; Rules of Usage. For purposes of this
Lease Supplement, capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in Appendix A
to the Participation Agreement, dated as of May 3, 1995, among the
Lessee, the Lessor, not individually, except as expressly stated
therein, but solely as Owner Trustee under the FM Trust 1995-1,
NationsBank of Texas, N.A., as the Holder, the various banks and
banking institutions which are parties thereto from time to time and
NationsBank of Texas, N.A., as Agent for the Lenders.
SECTION 2. The Properties. Attached hereto as Schedule I is
the description of the Leased Property, with an Equipment Schedule
attached hereto as Schedule I-A, an Improvement Schedule attached
hereto as Schedule I-B and a legal description of the Land for such
Project attached hereto as Schedule I-C. Effective upon the execution
and delivery of this Lease Supplement by the Lessor and the Lessee,
the Leased Property shall be subject to the terms and provisions of
the Lease.
SECTION 3. Ratification; Incorporation by Reference. Except as
specifically modified hereby, the terms and provisions of the Lease
and the Operative Agreements are hereby ratified and confirmed and
remain in full force and effect. The Lease is hereby incorporated
herein by reference as though restated herein in its entirety.
SECTION 4. Original Lease Supplement. The single executed
original of this Lease Supplement marked "THIS COUNTERPART IS THE
ORIGINAL EXECUTED COUNTERPART" on the signature page thereof and
containing the receipt of the Agent therefor on or following the
signature page thereof shall be the original executed counterpart of
this Lease Supplement (the "Original Executed Counterpart"). To the
extent that this Lease Supplement constitutes chattel paper, as such
term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction, no security interest in this Lease
Supplement may be created through the transfer or
2
possession of any counterpart other than the Original Executed
Counterpart.
SECTION 5. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
OREGON.
SECTION 6. Counterpart Execution. This Lease Supplement may be
executed in any number of counterparts and by each of the parties
hereto in separate counterparts, all such counterparts together
constituting but one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Lease Supplement to be duly executed by an officer thereunto duly
authorized as of the date and year first above written.
FIRST SECURITY BANK OF UTAH, N.A.,
not individually, but solely as
Owner Trustee under the FM Trust
1995-1, as Lessor
By: C. SCOTT NIELSEN
------------------------------
Name: C. Scott Nielsen
----------------------------
Title: Asst. Vice President
---------------------------
FRED MEYER, INC., as Lessee
By: MICHAEL H. DON
------------------------------
Name: Michael H. Don
----------------------------
Title: Vice President/Treasurer
---------------------------
Receipt of this original counterpart of the foregoing Lease
Supplement is hereby acknowledged as the date hereof.
NATIONSBANK OF TEXAS, N.A., as Agent
By: WILLIAM GUFFEY
-------------------------------
Name: William Guffey
-----------------------------
Title: Vice President
----------------------------
SCHEDULE I-A
TO LEASE SUPPLEMENT NO. 2
(Equipment)
None
SCHEDULE I-B
TO LEASE SUPPLEMENT NO. 2
(Improvements)
SCHEDULE I-C
TO LEASE SUPPLEMENT NO. 2
(Land)
RECORDING REQUESTED
BY AND WHEN RECORDED
RETURN TO:
Moore & Van Allen, P.L.L.C.
NationsBank Corporate Center
100 North Tryon Street, Floor 47
Charlotte, NC 28202-4003
- ---------------------------------------------------------------------
LEASE ASSIGNMENT AGREEMENT
(Assignment of Lessor's Interest - Hawthorne Sublease and
Assignment of Lessee's Interest - Hawthorne Master Lease)
This Lease Assignment Agreement (this "Agreement"), dated as of
May 11, 1995 between REAL ESTATE PROPERTIES LIMITED PARTNERSHIP, an
Oregon limited partnership whose address is Suite 200, 15115 SW
Sequoia Parkway, Portland, OR 97224 ("Assignor"), and FIRST SECURITY
BANK OF UTAH, N.A., not individually, but solely as Owner Trustee
under the FM Trust 1995-1 ("Assignee"), recites and provides as
follows:
Assignor currently leases the real property located in Portland,
Multnomah County, Oregon, described in the attached Exhibit A, from
REC Resolution Company, Inc., an Oregon corporation ("REC"), pursuant
to a lease agreement dated as of February 5, 1963 (the "Hawthorne
Master Lease"). Assignor subleases the Hawthorne Property to Fred
Meyer, Inc., a Delaware corporation, pursuant to a lease agreement
dated as of October 22, 1986 (the "Hawthorne Sublease"). The
Hawthorne Master Lease and the Hawthorne Sublease are, collectively,
the "Lease Agreements."
FOR good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Assignor hereby sells, assigns,
transfers, conveys and delivers to Assignee all of Assignor's right,
title and interest in and to the Hawthorne Master Lease (as lessee)
and the Hawthorne Sublease (as lessor). The rights conveyed hereby
are referred to herein as the "Leasehold Interests".
Assignee hereby accepts the foregoing assignment, but without
assumption of any liability or obligation of any kind under the Lease
Agreements, which liabilities and obligations will be terminated
contemporaneously with the consummation of such assignment. Neither
the assignment nor acceptance of the Leasehold Interests will be
construed as an assumption of the Lease Agreements. Assignee assumes
no liabilities or obligations of Assignor of any nature whatsoever,
whether or not accrued or affixed, absolute or contingent, known or
unknown,
2
determined or determinable, or incurred prior to, on or after the
effective date of such assignment (the "Closing Date").
Assignor represents, warrants and covenants to and with Assignee
that: (1) Assignor has good and indefeasible title to the Leasehold
Interests, subject to no encumbrances created or suffered by Assignor
other than the matters identified on Exhibit B hereto; (2) Assignor
has the full right, power and authority to assign the Leasehold
Interests to Assignee in accordance herewith; and (3) Assignor will
defend Assignee's right, title and interest in and to the Leasehold
Interests from and against any claim by, through or under Assignor.
Assignee is, concurrently with the assignments pursuant to this
Agreement, acquiring fee title to the property covered by the
Hawthorne Master Lease from REC, together with the interest of REC as
the lessor under the Hawthorne Master Lease (the "REC Interests").
The parties acknowledge that, upon consummation of the assignments
under this Agreement, and Assignee's acquisition of the REC Interests,
the Hawthorne Master Lease will be terminated by merger of estates,
and will thereafter have no force or effect.
This Agreement shall bind and inure to the benefit of, and be
enforceable by, the parties hereto and their respective successors,
heirs, and permitted assigns. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute
one agreement binding on all the parties. Each party agrees, at the
request of the other party, at any time and from time to time after
the date hereof, to execute and deliver all such further documents,
and to take and forbear from all such action, as may be reasonably
necessary or appropriate in order more effectively to perfect the
transfers of rights contemplated herein or otherwise to confirm or
carry out the provisions of this Agreement.
EXECUTED effective the date first written above.
ASSIGNOR: REAL ESTATE PROPERTIES LIMITED PARTNERSHIP, an
Oregon limited partnership, by FMGP Associates,
an Oregon limited partnership, its general partner,
by FMGP Incorporated, a Delaware corporation, its
general partner
By: PETER F. BECHEN
-----------------------------------
Title: President
--------------------------------
ASSIGNEE: FIRST SECURITY BANK OF UTAH, N.A., not
individually, but solely as Owner Trustee under
the FM Trust 1995-1
By: VAL T. ORTON
-----------------------------------
Title: Vice President
--------------------------------
3
STATE OF UTAH )
) ss.
COUNTY OF SALT LAKE )
This instrument was acknowledged before me this 9th day of May,
1995, by Val T. Orton, as Vice President of FIRST SECURITY BANK OF
UTAH, N.A., on behalf of said association, not individually, but
solely as Owner Trustee under the FM Trust 1995-1.
MELE V. FONUA
-----------------------------------
Notary Public for State of Utah
My Commission Expires: Oct. 3, 1998
STATE OF OREGON )
) ss.
COUNTY OF Washington )
On this 28 day of April, 1995, before me, the undersigned, a
Notary Public in and for the State of Oregon, duly commissioned and
sworn, personally appeared Peter F. Bechen, to me known to be the
person who signed as President of FMGP INCORPORATED, a Delaware
corporation, the corporation that executed the within and foregoing
instrument as the general partner of FMGP ASSOCIATES, an Oregon
limited partnership, itself the limited partnership that executed the
within and foregoing instrument as a general partner of REAL ESTATE
PROPERTIES LIMITED PARTNERSHIP, an Oregon limited partnership, and
acknowledged said instrument to be the free and voluntary act and
deed of said corporation, and that said corporation executed the same,
pursuant to its bylaws or a resolution of its board of directors, as
the general partner of said limited partnership; and that said
limited partnership executed the same as a general partner of said
partnership, and that said partnership executed the same.
JENNIFER SEIFERT
NOTARY PUBLIC in and for the State of Oregon
My Appointment Expires: Mar. 28, 1997
Exhibit A - Legal Description
Order No. 759048
REVISED EXHIBIT "A"
PARCEL I:
Lots 1-16, inclusive, Block 1, SUNNYSIDE ADDITION, in the City of
Portland, County of Multnomah and State of Oregon. TOGETHER WITH
that portion vacated of SE Madison Street which inured thereto by reason
of Ordinance vacating SE Madison Street recorded December 4, 1970 in
Book 762, page 1551.
PARCEL II:
Lots 1-16, inclusive, Block 2, SUNNYSlDE ADDITION, in the City of
Portland, County of Multnomah and State of Oregon.
EXCEPT the East 12 feet of Lots 8 and 9 of said Block 2, described in
deeds to the City of Portland, recorded October 16, 1962 in Book
2139, page 424 and Book 2139, page 428.
TOGETHER WITH that portion of vacated SE Madison Street which inured
thereto by reason of Ordinance vacating SE Madison Street recorded
December 4, 1970 in book 762, page 1551.
EXHIBIT B
EXCEPTIONS TO TITLE - HAWTHORNE
1. Conditions and Restrictions contained in Ordinance No. 93277, of the
City of Portland, a copy of which was
Recorded : January 9, 1951 in Book 1453, page 142
2. Conditions and Restrictions contained in Ordinance No. 94128, of the
City of Portland, a copy of which was
Recorded : May 21, 1951 in Book 1477, page 355
3. Conditions and Restrictions contained in Ordinance No. 98444, of the
City of Portland, a copy of which was
Recorded : May 22, 1953 in Book 1602, page 361
4. Conditions and Restrictions contained in Ordinance No. 98964, of the
City of Portland, a copy of which was
Recorded : August 17, 1953 Book 1616, page 370
5. Conditions and Restrictions contained in Ordinance No. 115437, of the
City of Portland, a copy of which was
Recorded : July 9, 1962 in Book 2124, page 408
6. Any rights, interests or claims which may exist or arise by reason of
the matters noted in the survey dated January 30, 1995 by Westlake
Consultants, Inc., Job No. 720-04.
7. Subleases and tenancies affecting the Property that were created or
suffered by Fred Meyer, Inc. as lessee.
8. Reservation of utilities in vacated street area and the right to
maintain the same as set forth in Ordinance No. 131479, a copy of
which was
Recorded : December 4, 1970 in Book 762, page 1551
9. Conditions and Restrictions contained in Ordinance No. 132582, of the
City of Portland, a copy of which was
Recorded : May 17, 1971 in Book 787, page 1632
LEASE SUPPLEMENT NO. 3
THIS LEASE SUPPLEMENT NO. 3 (this "Lease Supplement") dated as
of May 3, 1995 between FIRST SECURITY BANK OF UTAH, N.A., a national
banking association, not individually, but solely as Owner Trustee
under the FM Trust 1995-1, as lessor (the "Lessor"), and FRED MEYER,
INC., as lessee (the "Lessee").
WHEREAS, the Lessor is the owner or will be owner of the Property
described on Schedule I hereto (the "Leased Property") and wishes to
lease the same to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Definitions; Rules of Usage. For purposes of this
Lease Supplement, capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in Appendix A
to the Participation Agreement, dated as of May 3, 1995, among the
Lessee, the Lessor, not individually, except as expressly stated
therein, but solely as Owner Trustee under the FM Trust 1995-1,
NationsBank of Texas, N.A., as the Holder, the various banks and
banking institutions which are parties thereto from time to time and
NationsBank of Texas, N.A., as Agent for the Lenders.
SECTION 2. The Properties. Attached hereto as Schedule I is
the description of the Leased Property, with an Equipment Schedule
attached hereto as Schedule I-A, an Improvement Schedule attached
hereto as Schedule I-B and a legal description of the Land for such
Project attached hereto as Schedule I-C. Effective upon the execution
and delivery of this Lease Supplement by the Lessor and the Lessee,
the Leased Property shall be subject to the terms and provisions of
the Lease.
SECTION 3. Ratification; Incorporation by Reference. Except as
specifically modified hereby, the terms and provisions of the Lease
and the Operative Agreements are hereby ratified and confirmed and
remain in full force and effect. The Lease is hereby incorporated
herein by reference as though restated herein in its entirety.
SECTION 4. Original Lease Supplement. The single executed
original of this Lease Supplement marked "THIS COUNTERPART IS THE
ORIGINAL EXECUTED COUNTERPART" on the signature page thereof and
containing the receipt of the Agent therefor on or following the
signature page thereof shall be the original executed counterpart of
this Lease Supplement (the "Original Executed Counterpart"). To the
extent that this Lease Supplement constitutes chattel paper, as such
term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction, no security interest in this Lease
Supplement may be created through the transfer or
2
possession of any counterpart other than the Original Executed
Counterpart.
SECTION 5. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
OREGON.
SECTION 6. Counterpart Execution. This Lease Supplement may
be, executed in any number of counterparts and by each of the parties
hereto in separate counterparts, all such counterparts together
constituting but one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Lease Supplement to be duly executed by an officer thereunto duly
authorized as of the date and year first above written.
FIRST SECURITY BANK OF UTAH, N.A.,
not individually, but solely as
Owner Trustee under the FM Trust
1995-1, as Lessor
By: C. SCOTT NIELSEN
------------------------------
Name: C. Scott Nielsen
----------------------------
Title: Asst. Vice President
---------------------------
FRED MEYER, INC., as Lessee
By: MICHAEL H. DON
------------------------------
Name: Michael H. Don
----------------------------
Title: Vice President/Treasurer
---------------------------
Receipt of this original counterpart of the foregoing Lease
Supplement is hereby acknowledged as the date hereof.
NATIONSBANK OF TEXAS, N.A., as Agent
By: WILLIAM GUFFEY
-------------------------------
Name: William Guffey
-----------------------------
Title: Vice President
----------------------------
SCHEDULE I
TO LEASE SUPPLEMENT NO. 3
SCHEDULE I-A
TO LEASE SUPPLEMENT NO. 3
(Equipment)
None
SCHEDULE I-B
TO LEASE SUPPLEMENT NO. 3
(Improvements)
SCHEDULE I-C
TO LEASE SUPPLEMENT NO. 3
(Land)