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MASTER LEASE AND SECURITY AGREEMENT
Dated as of May 22, 2001
between
IRON MOUNTAIN STATUTORY TRUST - 2001
as Lessor
and
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
as Lessee
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This Lease has been executed in several counterparts. To the extent, if any,
that this Lease constitutes chattel paper (as such term is defined in the
Uniform Commercial Code as in effect in any applicable jurisdiction), no lien on
this Lease may be created through the transfer or possession of any counterpart
other than the original counterpart containing the receipt therefor executed by
the Lessor immediately following the signature page hereof.
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS...............................................................1
1.1 Definitions; Interpretation................................................1
ARTICLE II PURCHASE AND LEASE........................................................1
2.1 Acquisition and Lease of Assets............................................1
2.2 Acceptance Procedure.......................................................2
2.3 Lease Term.................................................................2
2.4 End of Lease Term..........................................................2
2.5 Title......................................................................2
ARTICLE III FUNDINGS..................................................................3
3.1 Lessor Commitment..........................................................3
3.2 Procedures for Fundings....................................................3
3.3 Source of Fundings.........................................................4
ARTICLE IV CONDITIONS PRECEDENT TO CLOSING DATE, ACQUISITION
DATES AND ADVANCES... ....................................................4
4.1 Closing Date...............................................................4
4.2 Acquisition Date Conditions................................................5
4.3 Conditions Precedent to Each Funding.......................................8
ARTICLE V CONDITIONS TO SUBSTANTIAL COMPLETION......................................8
5.1 Conditions to Substantial Completion of a Construction Property............8
ARTICLE VI REPRESENTATIONS AND WARRANTIES............................................9
6.1 Representations of the Lessor..............................................9
6.2 Representations of the Lessee..............................................9
6.3 Representations of the Lessee with respect to Each Acquisition.............11
6.4 Representations of the Lessee with Respect to Each Funding.................12
ARTICLE VII PAYMENT OF RENT; FEES; EXCESS TENANT IMPROVEMENT FUNDS.............. .....13
7.1 Rent.......................................................................13
7.2 Payment of Rent............................................................13
7.3 Supplemental Rent..........................................................13
7.4 Commitment Fee; Optional Reduction of Commitment...........................14
7.5 Repayment of Excess Funds for Tenant Improvements..........................14
7.6 Method of Payment..........................................................14
ARTICLE VIII QUIET ENJOYMENT; RIGHT TO INSPECT.................................... ....15
8.1 Quiet Enjoyment............................................................15
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8.2 Right to Inspect...........................................................15
ARTICLE IX NET LEASE, ETC............................................................15
9.1 Net Lease..................................................................15
9.2 No Termination or Abatement................................................16
ARTICLE X SUBLEASES.................................................................16
10.1 Subletting.................................................................16
ARTICLE XI LESSEE ACKNOWLEDGMENTS....................................................16
11.1 Condition of the Leased Assets.............................................16
11.2 Risk of Loss...............................................................17
ARTICLE XII POSSESSION AND USE, ETC...................................................17
12.1 Possession and Use.........................................................17
12.2 Charges....................................................................17
12.3 Impositions.... ...........................................................17
12.4 Compliance with Requirements of Law and Insurance Requirements.............17
ARTICLE XIII MAINTENANCE AND REPAIR; RETURN............................................18
13.1 Maintenance and Repair.....................................................18
13.2 Return.....................................................................18
ARTICLE XIV MODIFICATIONS, ETC........................................................18
14.1 Modifications, Substitutions and Replacements. ............................18
14.2 Tenant Improvements........................................................19
ARTICLE XV WARRANT OF TITLE; EASEMENTS...............................................19
15.1 Warrant of Title...........................................................19
15.2 Grants and Releases of Easements; Lessor's Waivers.........................20
ARTICLE XVI PERMITTED CONTESTS........................................................20
16.1 Permitted Contests.........................................................20
ARTICLE XVII INSURANCE.................................................................21
17.1 Public Liability and Workers' Compensation Insurance.......................21
17.2 Hazard and Other Insurance.................................................21
17.3 Insurance Coverage.........................................................21
ARTICLE XVIII CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS..........................23
18.1 Casualty and Condemnation......... ........................................23
18.2 Environmental Matters.............. .......................................24
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18.3 Notice of Environmental Claims.............................................25
ARTICLE XIX TERMINATION OF LEASE......................................................25
19.1 Termination upon Certain Events............................................25
19.2 Termination Procedures.....................................................26
19.3 Property Under Construction................................................26
ARTICLE XX EVENTS OF DEFAULT; REMEDIES...............................................26
20.1 Events of Default..........................................................26
20.2 Remedies...................................................................28
20.3 Waiver of Certain Rights...................................................30
ARTICLE XXI ASSIGNMENT................................................................31
21.1 Assignment by Lessor.......................................................31
21.2 Assignment by Lessee.......................................................31
ARTICLE XXII PURCHASE PROVISIONS.......................................................31
22.1 Purchase Option............................................................31
22.2 Acceleration of Purchase Obligation........................................31
22.3 Purchase of Unimproved Land................................................32
ARTICLE XXIII RENEWAL TERMS.............................................................32
23.1 Renewal....................................................................32
ARTICLE XXIV REMARKETING OPTION........................................................32
24.1 Option to Remarket.........................................................32
24.2 Certain Obligations Continue...............................................34
24.3 Involuntary Change of Control..............................................34
ARTICLE XXV PROCEDURES RELATING TO PURCHASE OR REMARKETING............................36
25.1 Conveyance upon Purchase by the Lessee.....................................36
25.2 Conveyance upon Remarketing................................................36
ARTICLE XXVI EXCHANGES OF LEASED ASSETS................................................37
26.1 Exchanges of Leased Assets.................................................37
26.2 Exchange Procedure.........................................................37
26.3 Conditions to Each Exchange................................................37
26.4 Effect of Exchange.........................................................37
26.5 Like-kind Exchanges........................................................38
ARTICLE XXVII INDEMNIFICATION...........................................................38
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27.1 General Indemnification....................................................38
27.2 Environmental Indemnity....................................................39
27.3 Tax Indemnity..............................................................40
27.4 Proceedings in Respect of Claims...........................................41
27.5 Construction Properties....................................................42
ARTICLE XXVIII ESTOPPEL CERTIFICATES....................................................42
28.1 Estoppel Certificates......................................................42
ARTICLE XXIX ACCEPTANCE OF SURRENDER...................................................43
29.1 Acceptance of Surrender....................................................43
ARTICLE XXX NO MERGER OF TITLE........................................................43
30.1 No Merger of Title.........................................................43
ARTICLE XXXI INTENT OF THE PARTIES.....................................................43
31.1 Ownership of the Leased Assets.............................................43
ARTICLE XXXII PAYMENT OF EXPENSES; YIELD PROTECTION.....................................44
32.1 Transaction Expenses.......................................................44
32.2 Brokers' Fees and Stamp Taxes..............................................44
32.3 Funding Losses.............................................................44
32.4 Regulation D Compensation..................................................45
32.5 Increased Cost and Reduced Return..........................................45
ARTICLE XXXIII OTHER COVENANTS AND AGREEMENTS OF LESSEE.................................46
33.1 Information................................................................46
ARTICLE XXXIV MISCELLANEOUS............................................................47
34.1 Survival; Severability; Etc................................................47
34.2 Amendments and Modifications...............................................47
34.3 No Waiver..................................................................47
34.4 Notices....................................................................47
34.5 Successors and Assigns.....................................................47
34.6 Headings and Table of Contents.............................................47
34.7 Counterparts...............................................................47
34.8 GOVERNING LAW..............................................................47
34.9 Original Lease.............................................................48
34.10 WAIVER OF JURY TRIAL.......................................................48
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34.11 Nature of Lessor's Obligations; Limitations on Liability; Survival.........48
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SCHEDULES
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Schedule I Notice Information
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APPENDIXES
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Appendix 1 Definitions and Interpretation
Appendix 2 Calculation of Base Rent
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EXHIBITS
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Exhibit A-1 Form of Acquisition Funding Request
Exhibit A-2 Form of Funding Request
Exhibit A-3 Form of Substantial Completion Funding Request
Exhibit B Form of Lessee's Certificate
Exhibit C Form of Guarantor's Certificate
Exhibit D-1 Form of Lease Supplement for Property other than Construction Property
Exhibit D-2 Form of Lease Supplement for Construction Property
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MASTER LEASE AND SECURITY AGREEMENT
THIS MASTER LEASE AND SECURITY AGREEMENT (this "LEASE"), dated as of
May 22, 2001, is entered into between IRON MOUNTAIN STATUTORY TRUST - 2001, a
Connecticut statutory trust, as the Lessor, and IRON MOUNTAIN RECORDS
MANAGEMENT, INC., a Delaware corporation, as the Lessee.
W I T N E S S E T H:
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WHEREAS, the Lessor and the Lessee desire to have the Lessor acquire
certain assets and lease such assets to the Lessee pursuant to this Lease; and
WHEREAS, such assets may include real property on which improvements
are to be constructed, in which case the Lessor will finance the cost of such
improvements as provided herein and the Lessee will act as agent of Lessor for
the construction of such improvements; and
WHEREAS, the Lessor desires to lease to the Lessee, and the Lessee
desires to lease from the Lessor, the Leased Assets from time to time subject to
this Lease; and
WHEREAS, the Lessee is a wholly-owned subsidiary of the Guarantor, and
the Guarantor is willing to guarantee the payment and performance of all of the
Lessee's obligations hereunder and under the other documents entered into by the
Lessee in connection herewith;
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS; INTERPRETATION. Capitalized terms used but not
otherwise defined in this Lease have the respective meanings specified in
APPENDIX 1; and the rules of interpretation set forth in APPENDIX 1 shall apply
to this Lease.
ARTICLE II
PURCHASE AND LEASE
2.1 ACQUISITION AND LEASE OF ASSETS.
(a) PROPERTIES OTHER THAN CONSTRUCTION PROPERTIES. Subject to
the terms and conditions of this Lease, on the Acquisition Date for each
Property other than a Construction Property (i) the Lessor shall purchase a fee
interest in such Property or acquire a leasehold interest in such Property
pursuant to a Ground Lease and (ii) the Lessor shall demise and lease to the
Lessee hereunder for the Lease Term applicable thereto such Property, and the
Lessee hereby agrees to lease from the Lessor for such Lease Term, such
Property.
(b) CONSTRUCTION PROPERTIES. Subject to the terms and conditions
of this Lease, on the Acquisition Date for each Construction Property (i) the
Lessor shall purchase a fee interest in the relevant parcel of Land, or acquire
a leasehold interest in such parcel of Land pursuant to a Ground Lease, and (ii)
the Lessor shall demise and lease to the Lessee hereunder for the Lease Term
applicable thereto the
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Lessor's interest in such Land together with any Improvements which then may be
located thereon or thereafter may be constructed thereon pursuant to the
Construction Agency Agreement or this Lease, and the Lessee hereby agrees to
lease from the Lessor for such Lease Term, the Lessor's interest in such Land
together with the Lessor's interest in such Improvements.
(c) LIMITATIONS ON PROPERTIES. Notwithstanding any other
provision hereof, the Lessor shall not acquire any Property:
(i) unless such Property consists primarily of (or on
completion of Construction will consist primarily of) a document
storage warehouse or data protection facility to be used by the Lessee
(and its permitted sublessees) in the ordinary course of its business;
(ii) if, after giving effect thereto, the total number of
(A) Properties acquired by the Lessor would exceed twenty-eight (28) or
(B) Construction Properties acquired by the Lessor would exceed eight
(8);
(iii) if the Maximum Lease Balance for such Property is
greater than $18,000,000 or less than $1,750,000 or if, after giving
effect thereto, the Maximum Lease Balance for all Properties acquired
by the Lessor would exceed the Total Commitment; or
(iv) if, in the case of a Construction Property, the
Outside Completion Date for such Construction Property on the proposed
Acquisition Date therefor would be later than the Base Date.
2.2 ACCEPTANCE PROCEDURE. The Lessee hereby agrees that the execution
and delivery by the Lessee on each Acquisition Date of an appropriately
completed Lease Supplement shall, without further act, constitute the
unconditional and irrevocable acceptance by the Lessee of all of the Leased
Assets which are the subject of such Lease Supplement for all purposes of this
Lease and the other Operative Documents on the terms set forth therein and
herein, and that all of such Leased Assets shall be deemed to be included in the
leasehold estate of this Lease and shall be subject to the terms and conditions
of this Lease as of the applicable Acquisition Date.
2.3 LEASE TERM. This Lease shall be in full force and effect on the
Closing Date. Although each Leased Asset shall be subject to this Lease from the
Acquisition Date for such Leased Asset, the Lessee shall not be required to pay
Base Rent for any Leased Asset until the Lease Term for such Leased Asset
commences. The Lease Term for each Leased Asset shall commence on the Lease
Commencement Date for such Leased Asset and shall consist of the Interim Lease
Term applicable thereto plus the Base Lease Term applicable thereto.
2.4 END OF LEASE TERM. Unless the Lease Term for the Leased Assets is
renewed pursuant to ARTICLE XXIII, at or before the Expiration Date the Lessee
must elect either (i) the Purchase Option pursuant to ARTICLE XXII or (ii) the
Remarketing Option pursuant to ARTICLE XXIV, and if it fails to make such
election in accordance with the terms hereof, it shall automatically and
irrevocably be deemed to have elected the Purchase Option for the Leased Assets
and to have specified the Expiration Date as the date on which such purchase
will be made.
2.5 TITLE. Each Leased Asset is leased to the Lessee without, except as
expressly set forth herein, any representation or warranty, express or implied,
by the Lessor and subject to the rights of parties in possession, the existing
state of title (including, without limitation, Permitted Liens other than Lessor
Liens) and all applicable Requirements of Law. The Lessee shall in no event have
any recourse against
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the Lessor for any defect in or exception to title to any Leased Asset other
than to the extent resulting from Lessor Liens.
ARTICLE III
FUNDINGS
3.1 LESSOR COMMITMENT. Subject to the terms and conditions of this
Lease, the Lessor shall, upon the written request of the Lessee from time to
time on or before the Base Date, make Fundings on Funding Dates for the purpose
of (i) in the case of any Property other than a Construction Property, financing
the acquisition of such Property and related Tenant Improvements, if any, and
(ii) in the case of any Construction Property, financing the acquisition,
ownership, insurance, renovation and improvement of such Property during the
Construction Period applicable thereto. Except in the case of a Construction
Property, the Lessor shall not make more than one Funding with respect to any
Leased Asset unless otherwise agreed by the Lessor with respect to such Leased
Asset. After the initial Funding for any Construction Property, the Lessor shall
make additional Fundings with respect thereto as provided herein, PROVIDED that
the Lessor shall not make any Funding for any Construction Property after the
Lease Commencement Date applicable thereto. Notwithstanding any other provision
hereof, the Lessor shall not be obligated to make any Funding if, after giving
effect thereto, the aggregate principal amount of Fundings (x) with respect to
the Leased Asset to be funded thereby would exceed the Maximum Lease Balance
relating thereto or (y) with respect to all Leased Assets would exceed the Total
Commitment.
3.2 PROCEDURES FOR FUNDINGS.
(a) With respect to each Funding, the Lessee shall give the
Lessor and the Administrative Agent prior written notice not later than 1:00
p.m., New York City time, three (3) Business Days prior to the date of the
proposed funding, pursuant to a Funding Request, specifying: (i) the proposed
funding date (the "FUNDING DATE"), (ii) the amount of Funding requested, which
shall be an amount not less than $500,000 and (iii) the Leased Asset to which
such Funding is being allocated and the allocation of such Funding among the
various categories of costs and expenses listed in clause (c) below. With
respect to any Acquisition Funding Request, the Lessee shall also specify: (i)
the Leased Asset to be acquired and (ii) the transferor thereof.
(b) Each Funding Date shall occur on a Monthly Date; PROVIDED,
HOWEVER, that if such Funding Date is also an Acquisition Date, then such
Funding Date may be on any Business Day; PROVIDED, FURTHER, that from and after
July 22, 2001 there may not be more than two (2) such additional Funding Dates
in any calendar month.
(c) Fundings shall be made solely (i) to pay Property
Acquisition Costs, (ii) to pay or to reimburse the Construction Agent for Land
Acquisition Costs and Property Improvement Costs (including Capitalized Interest
and Capitalized Commitment Fees relating to any Construction Property), and
(iii) to pay or to reimburse the Lessee for Transaction Expenses paid or payable
by the Lessee in connection with the preparation, execution and delivery of the
Operative Documents and all fees paid or payable by the Lessee to the Lessor,
the Administrative Agent, the Collateral Agent or any Equity Participant in
connection with the Operative Documents.
(d) All remittances made by the Lessor for any Funding shall be
made through the Administrative Agent on the applicable Funding Date in
immediately available federal funds by wire transfer to the account or accounts
designated by the Lessee.
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(e) Notwithstanding anything to the contrary contained herein,
on each Payment Date during the Construction Period for any Construction
Property, the Lessor shall be deemed to have made a Funding in an amount equal
to the Capitalized Interest and Capitalized Commitment Fee for such Property
calculated as of such date, and the amount of such Funding shall be added to the
Lease Balance of such Property on such date.
3.3 SOURCE OF FUNDINGS. The Lessor will borrow Loans and obtain Equity
Contributions in such a manner so as to ensure that its equity capital, as
determined in accordance with GAAP, is not less than 3.0% of its total
capitalization at any time.
ARTICLE IV
CONDITIONS PRECEDENT TO
CLOSING DATE, ACQUISITION DATES AND ADVANCES
4.1 CLOSING DATE. The closing date (the "CLOSING DATE") shall occur on
the earliest date on which the following conditions precedent shall have been
satisfied or waived:
(a) MASTER LEASE. This Lease shall have been duly executed and
delivered by the parties hereto.
(b) GUARANTY. The Guaranty shall have been duly executed and
delivered by the Guarantor.
(c) LESSEE'S CONSENT. The Lessee's Consent shall have been duly
executed and delivered by the Lessee.
(d) LESSEE'S CERTIFICATE. The Lessor shall have received a
Lessee's Certificate, in substantially the form of EXHIBIT B, stating that (i)
each representation and warranty of the Lessee contained in each Operative
Document to which it is a party is true and correct in all material respects on
and as of the Closing Date; (ii) no Default or Event of Default has occurred and
is continuing; and (iii) each Operative Document to which the Lessee is a party
is in full force and effect with respect to it.
(e) RESOLUTIONS AND INCUMBENCY CERTIFICATE, ETC. OF LESSEE. The
Lessee shall have delivered to the Lessor (i) a certificate of its Secretary or
an Assistant Secretary attaching and certifying as to (A) the resolutions of its
Board of Directors duly authorizing the execution, delivery and performance by
it of each Operative Document to which it is or will be a party, (B) its
certificate of incorporation and by-laws, and (C) the incumbency and signature
of persons authorized to execute and deliver on its behalf the Operative
Documents to which it is a party and (ii) a certificate of good standing with
respect to it issued by the Secretary of State of the State of its
incorporation.
(f) GUARANTOR'S CERTIFICATE. The Lessor shall have received a
Guarantor's Certificate, in substantially the form of EXHIBIT C, stating that
(i) each representation and warranty of the Guarantor contained in each
Operative Document to which it is a party is true and correct in all material
respects on and as of the Closing Date; (ii) no Event of Default (as defined in
the Guaranty) has occurred and is continuing; and (iii) each Operative Document
to which the Guarantor is a party is in full force and effect with respect to
it.
(g) RESOLUTIONS AND INCUMBENCY CERTIFICATE, ETC. OF GUARANTOR.
The Guarantor shall have delivered to the Lessor (i) a certificate of its
Secretary or an Assistant Secretary attaching and certifying as to (A) the
resolutions of its Board of Directors duly authorizing the execution, delivery
and
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performance by it of each Operative Document to which it is or will be a
party, (B) its certificate of incorporation and by-laws, and (C) the incumbency
and signature of persons authorized to execute and deliver on its behalf the
Operative Documents to which it is a party and (ii) a certificate of good
standing with respect to it issued by the Secretary of State of the State of its
incorporation.
(h) OPINIONS OF COUNSEL. Sullivan & Worcester LLP, counsel to
the Lessee and the Guarantor, and Ballard Spahr Andrews & Ingersoll, LLP,
Pennsylvania counsel to the Guarantor, shall each have issued to the Lessor, the
Administrative Agent, the Collateral Agent, the Equity Participants and the
Lenders an opinion in form and substance satisfactory to each such party.
(i) FEE LETTERS. Each Fee Letter shall have been duly executed
and delivered by the parties thereto, and the Lessee shall have paid that
portion of the fees payable thereunder on the Closing Date.
4.2 ACQUISITION DATE CONDITIONS.
(a) ALL ASSETS. The occurrence of the Acquisition Date with
respect to each Leased Asset is subject to the occurrence of the Closing Date
and the satisfaction or waiver of the following conditions precedent:
(i) LEASE SUPPLEMENT. The Lease Supplement relating to
such Leased Asset shall have been duly executed and delivered by the
parties hereto.
(ii) APPRAISAL. The Lessor shall have received an
Appraisal of such Leased Asset in form and substance satisfactory to
the Lessor and the Administrative Agent and, if such Appraisal shows
that the Fair Market Sales Value of such Leased Asset as of the
Expiration Date will be less than the Maximum Lease Balance for such
Leased Asset, the Lessor and the Lessee shall have agreed on the
Quarterly Amortization for such Leased Asset.
(iii) FILINGS. The Operative Documents (or memoranda
thereof), any supplements thereto and any UCC Financing Statements
shall have been recorded, registered and filed, if necessary, in such
manner as to perfect and protect the Lessor's interest in such Leased
Asset.
(iv) TAXES, ETC. All taxes, assessments, fees and other
charges in connection with the execution, delivery, recording, filing
and registration of the Operative Documents and the acquisition of such
Leased Asset shall have been paid or provisions for such payment shall
have been made to the satisfaction of the Lessor and the Administrative
Agent.
(v) GOVERNMENTAL APPROVALS. All Governmental Actions
necessary in connection with the acquisition of such Leased Asset by
the Lessor shall have been obtained or made and be in full force and
effect.
(vi) REQUIREMENTS OF LAW. In the opinion of the Lessor,
the Administrative Agent and its counsel, the acquisition and ownership
of such Leased Asset as contemplated by the Operative Documents do not
and will not violate in any material respect any Requirements of Law
and do not and will not subject the Lessor or any Participant to any
material adverse regulatory prohibitions or constraints.
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(vii) LESSEE'S AND GUARANTOR'S CERTIFICATES. The Lessor
shall have received a Lessee's Certificate, in substantially the form
of EXHIBIT B, and a Guarantor's Certificate, in substantially the form
of EXHIBIT C, each dated as of such Acquisition Date.
(viii) INSURANCE. The Lessor shall have received
satisfactory evidence that the insurance required to be maintained
pursuant to the Operative Documents with respect to such Leased Asset
is in full force and effect.
(b) PROPERTIES. In addition to the conditions specified in (a)
above, the occurrence of the Acquisition Date with respect to each Leased Asset
consisting of Property is subject to the following conditions precedent:
(i) DEED OR GROUND LEASE. The Lessor and the
Administrative Agent shall have received a Deed or Ground Lease with
respect to the Land constituting a part of such Property.
(ii) MORTGAGE. Except as the Lessor may otherwise agree,
the Lessor shall have received a Mortgage relating to such Property
duly executed and delivered by the Lessee.
(iii) MEMORANDUM OF LEASE. A memorandum of lease, in a
form appropriate for recording in the jurisdiction in which such
Property is located, shall have been duly executed and delivered by the
Lessor and the Lessee.
(iv) OPINION OF COUNSEL. Counsel to the Lessee in the
jurisdiction where such Property is located shall have delivered an
opinion as to local law matters in form and substance reasonably
satisfactory to the Lessor and the Administrative Agent.
(v) ENVIRONMENTAL AUDIT. The Lessor shall have received an
Environmental Audit for such Property in form and substance
satisfactory to the Lessor and the Administrative Agent.
(vi) SURVEY. The Lessee shall have delivered to the Lessor
an ALTA/1999 (Urban) Survey of the Land included in such Property
prepared by an independent, licensed registered public land surveyor
and meeting the Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys as adopted by the American Land Title
Association/American Society and American Congress on Surveying and
Mapping in 1999, certified to the Lessor, the Collateral Agent and the
Title Company and otherwise in form reasonably acceptable to the Lessor
and the Administrative Agent.
(vii) TITLE INSURANCE. The Lessor shall have received an
ALTA owners or leasehold title insurance policy and a mortgagee's title
insurance policy covering such Property in favor of the Lessor and the
Collateral Agent, respectively, such policies to be dated as of the
Acquisition Date and in an amount not less than the Maximum Lease
Balance for such Property and to be reasonably satisfactory to the
Lessor and the Administrative Agent with an owner's comprehensive (ALTA
9) endorsement, a 3.0 zoning endorsement and/or other endorsements
reasonably requested by the Lessor, in each case to the extent
available in the State where such Property is located.
(viii) TENANT IMPROVEMENTS. If the Property Acquisition
Cost for such Property includes Tenant Improvements, the Lessor shall
have received a breakdown of the cost
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of such Tenant Improvements in form and substance
reasonably satisfactory to the Lessor and the Administrative Agent.
(ix) INVOLUNTARY CHANGE OF CONTROL. No Involuntary Change
of Control shall have occurred.
(c) CONSTRUCTION PROPERTIES. In addition to the conditions
specified in (a) and (b) above, the occurrence of the Acquisition Date with
respect to each Construction Property is subject to the following conditions
precedent (except as otherwise provided in SECTION 4.2(d)):
(i) CONSTRUCTION AGENCY AGREEMENT. The Construction Agency
Agreement shall have been duly executed and delivered by the Lessor and
the Construction Agent.
(ii) CONSTRUCTION AGENCY AGREEMENT SUPPLEMENT. The
Construction Agency Agreement Supplement relating to such Construction
Property shall have been duly executed and delivered by the Lessor and
the Construction Agent.
(iii) CONSTRUCTION DOCUMENTS. The Lessor shall have
received the Plans and Specifications, the Budget and the EPC
Construction Contract or the GC Construction Contracts, as applicable,
relating to such Property, all of which shall be in form and substance
reasonably satisfactory to the Lessor and the Administrative Agent.
(iv) CONSTRUCTION DOCUMENTS ASSIGNMENT. The Construction
Documents Assignment relating to such Construction Property shall have
been duly executed and delivered by the Construction Agent, and the
Construction Agent shall have obtained any consent necessary in
connection therewith.
(v) ARCHITECT'S CERTIFICATE. The Lessor shall have
received a certificate from the Architect, in form and scope reasonably
satisfactory to the Lessor and the Administrative Agent, substantially
to the effect that (i) such Property as improved in accordance with the
Plans and Specifications and the contemplated use thereof by the Lessee
will comply in all material respects with all Requirements of Law and
Insurance Requirements and (ii) the Plans and Specifications have been
prepared in accordance with applicable Requirements of Law and upon
completion of the Improvements in accordance with the Plans and
Specifications, such Improvements on the Property will not encroach in
any manner onto any adjoining land (except as permitted by express
written easements or as insured by appropriate title insurance).
(d) ACQUISITIONS OF LAND. If the conditions precedent set forth
in SECTIONS 4.2(c)(iii) through (c)(v) have not been satisfied as of the
Acquisition Date with respect to any Construction Property, the Acquisition Date
with respect to such Property may still occur if the following conditions
precedent have been satisfied:
(i) PRELIMINARY PLANS AND BUDGET. The Lessor shall have
received preliminary plans and specifications for the Construction of
Improvements contemplated for such Property and a preliminary budget
for the Construction of such Improvements, all of which shall be in
form and substance reasonably satisfactory to the Lessor and the
Administrative Agent.
(ii) ADDITIONAL ASSURANCES. The Lessor shall have received
a certificate from the Construction Agent in which the Construction
Agent represents and warrants that (i) such Property, when built in
accordance with the preliminary plans and specifications and the
preliminary budget for such Property and the Plans and Specifications
and Budget to be delivered
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with respect to such Property, will conform to the
requirements of this Lease and the other Operative Documents and (ii)
the Construction Agent will commence the Construction of such Property
promptly and, in any event, within three (3) months of the Acquisition
Date for such Property
Notwithstanding anything herein or in the other Operative Documents to the
contrary, the Lessee may not request, and shall not be entitled to, any
additional Funding with respect to a Construction Property for which the
Acquisition Date has occurred pursuant to this SECTION 4.2(d) unless and until
the conditions set forth in SECTIONS 4.2(c)(iii) through 4.2(c)(v) have been
satisfied with respect to such Property.
4.3 CONDITIONS PRECEDENT TO EACH FUNDING. The obligations of the Lessor
to make a Funding on a Funding Date, including the initial Funding occurring on
any Acquisition Date, is subject to satisfaction or waiver of the following
conditions precedent:
(a) FUNDING REQUEST. The Lessor shall have received a fully
executed counterpart of the applicable Funding Request, executed by the Lessee.
(b) ACCURACY OF REPRESENTATIONS AND WARRANTIES. On the
applicable Funding Date the representations and warranties of the Lessee
contained herein and in each of the other Operative Documents to which it is a
party and of the Guarantor contained in the Guaranty and in each of the other
Operative Documents to which it is a party shall each be true and correct in all
material respects as though made on and as of such date, except to the extent
such representations or warranties relate solely to an earlier date, in which
case such representations and warranties shall have been true and correct on and
as of such earlier date.
(c) NO DEFAULT. There shall not have occurred and be continuing
any Default or Event of Default and no Default or Event of Default will have
occurred after giving effect to the making of the Funding requested by such
Funding Request.
(d) CONSTRUCTION PROGRESS. If requested by the Lessor or the
Administrative Agent in the case of a Funding relating to a Construction
Property, the Lessor and the Administrative Agent shall have received (i) copies
of reports describing in reasonable detail the progress of Construction, unpaid
invoices, receipted bills and Lien waivers, and such other supporting
information as the Lessor or the Administrative Agent may reasonably request, in
each case relating to such Construction Property, and (ii) a certificate from
the Lessee as to the amount of any unreimbursed Construction costs incurred by
the Construction Agent and outstanding on the applicable Funding Date.
(e) TITLE POLICY ENDORSEMENT. In the case of a Funding relating
to a Construction Property, the Lessor and the Administrative Agent shall have
received an endorsement to the title policy previously delivered pursuant to
this Lease for such Property (i) indicating that since the date of the preceding
Funding relating to such Property there has been no change in the state of title
and no additional survey exceptions not theretofore approved by the Lessor or
the Administrative Agent and (ii) updating the title policy to the date of such
endorsement.
ARTICLE V
CONDITIONS TO SUBSTANTIAL COMPLETION
5.1 CONDITIONS TO SUBSTANTIAL COMPLETION OF A CONSTRUCTION PROPERTY.
Substantial Completion with respect to a Construction Property shall be deemed
to have occurred for purposes of the Operative Documents at such time as (i) the
Construction shall have been substantially completed in accordance with the
Plans and Specifications and all Requirements of Law, (ii) the Lessee shall have
delivered to the
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Lessor (A) a final as-built survey for such Property, (B) if
available in the State where such Property is located, a 3.1 zoning endorsement
reasonably satisfactory to the Lessor, and (C) a Substantial Completion Funding
Request for such Property and (iii) such Property shall be ready for occupancy
and operation, as evidenced by (A) a certificate of the Architect, (B) the
application by the EPC Contractor, if applicable, for the payment to be made
upon substantial completion, (C) the issuance by the appropriate Governmental
Authority of temporary or final certificates of occupancy for all of the
Improvements contemplated by the Plans and Specifications or (D) such other
evidence as the Lessor may reasonably request, all of which shall be in form and
substance reasonably satisfactory to the Lessor and the Administrative Agent. If
a final certificate of occupancy has not been issued on the Lease Commencement
Date for any Property, then the Lessee will, within nine (9) months of such
date, obtain and furnish to the Lessor such final certificate of occupancy.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS OF THE LESSOR. The Lessor represents and warrants
to the Lessee that:
(a) ERISA. The Lessor is not and will not be making its Fundings
hereunder, and is not performing its obligations under the Operative Documents,
with the assets of an "employee benefit plan" (as defined in SECTION 3(3) of
ERISA) which is subject to Title I of ERISA, or a "plan" (as defined in SECTION
4975(e)(1) of the Code).
(b) STATUS. The Lessor is a Connecticut statutory trust.
(c) POWER AND AUTHORITY. The Lessor has the power and authority
to execute, deliver and perform the Operative Documents to which it is or will
be a party and has taken all necessary action to authorize the execution,
delivery and performance of the Operative Documents to which it is a party and
has duly executed and delivered each Operative Document required to be executed
and delivered by it and, assuming the due authorization, execution and delivery
thereof on the part of each other party thereto, each such Operative Document
constitutes a legal, valid and binding obligation enforceable against it in
accordance with its terms, except as the same may be limited by insolvency,
bankruptcy, reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights or by general equitable principles.
(d) INVESTMENT COMPANY ACT. The Lessor is not an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
6.2 REPRESENTATIONS OF THE LESSEE. The Lessee represents and warrants
to the Lessor that:
(a) CORPORATE STATUS. The Lessee (i) is a duly organized and
validly existing corporation in good standing under the laws of the State of
Delaware and (ii) has duly qualified and is authorized to do business and is in
good standing in each jurisdiction in which a Property is located and in all
other jurisdictions where the failure to do so might have a material adverse
effect on it or its assets.
(b) CORPORATE POWER AND AUTHORITY. The Lessee has the corporate
power and authority to execute, deliver and perform the Operative Documents to
which it is or will be a party and has taken all necessary corporate action to
authorize the execution, delivery and performance of the Operative Documents to
which it is a party and has duly executed and delivered each Operative Document
required to be executed and delivered by it and, assuming the due authorization,
execution and delivery thereof on
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the part of each other party thereto, each such Operative Document
constitutes a legal, valid and binding obligation enforceable against it in
accordance with its terms, except as the same may be limited by insolvency,
bankruptcy, reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights or by general equitable principles.
(c) NO VIOLATION. Neither the execution, delivery and
performance by the Lessee of the Operative Documents to which it is or will be a
party nor compliance with the terms and provisions thereof, nor the consummation
by the Lessee of the transactions contemplated therein (i) will result in a
violation by the Lessee of any applicable provision of any law, statute, rule,
regulation, order, writ, injunction or decree of any court or governmental
instrumentality having jurisdiction over the Lessee or any Leased Asset that
would materially adversely affect (x) the validity or enforceability of the
Operative Documents to which the Lessee is a party, or the title to, or value or
condition of, any Leased Asset, or (y) the business, financial condition,
results of operations or prospects of the Lessee or the ability of the Lessee to
perform its obligations under the Operative Documents, (ii) will result in any
breach which would constitute a default under, or (other than pursuant to the
Operative Documents) result in the creation or imposition of (or the obligation
to create or impose) any Lien upon any of the assets of the Lessee or the
Guarantor pursuant to the terms of, any indenture, loan agreement, lease or
other agreement to which the Lessee or the Guarantor is a party or by which it
or any of its assets is bound or to which it may be subject (other than
Permitted Liens), or (iii) will violate any provision of the certificate of
incorporation or by-laws of the Lessee.
(d) LITIGATION. There are no actions, suits or proceedings
pending or, to the knowledge of the Lessee, threatened (i) that, if adversely
determined, could reasonably be expected to have a material adverse effect on
the business, financial condition, results of operations or prospects of the
Lessee or (ii) that question the validity of the Operative Documents or the
rights or remedies of the Lessor with respect to the Lessee or any Leased Asset
under the Operative Documents.
(e) GOVERNMENTAL APPROVALS. No Governmental Action by any
Governmental Authority having jurisdiction over the Lessee or any Leased Asset
is required to authorize or is required in connection with (i) the execution,
delivery and performance by the Lessee of any Operative Document to which it is
a party or (ii) in the case of any Construction Property, the Construction
related thereto, except for any such Governmental Action which (A) has been
obtained and is in full force and effect, (B) is not yet required to be obtained
and will be duly obtained at or before the time required by all Requirements of
Law or (C) if not obtained, would not have a material adverse effect on the
title to, or the use, operation or value of, such Property.
(f) INVESTMENT COMPANY ACT. The Lessee is not an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
(g) PUBLIC UTILITY HOLDING COMPANY ACT. The Lessee is not a
"holding company" or a "subsidiary company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Company Act of 1935, as amended.
(h) TAXES. All United States federal income tax returns and all
other material tax returns which are required to have been filed have been or
will be filed by or on behalf of the Lessee by the respective due dates,
including extensions, and all taxes due with respect to the Lessee shown on such
returns or pursuant to any assessment received by the Lessee have been or will
be paid or are being contested in good faith by the Lessee by appropriate
procedures. The charges, accruals and reserves on the books of the Lessee in
respect of taxes or other governmental charges are, in the opinion of the
Lessee, adequate.
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(i) ENVIRONMENTAL LAWS. The Lessee is in compliance with all
Environmental Laws in all jurisdictions in which all real property of the
Lessee, including all Land, is located, other than those the non-compliance with
which would not have a material adverse effect on any Land or the business,
financial condition, results of operations or prospects of the Lessee.
(j) CONSTRUCTION PROPERTIES.
(i) Each EPC Construction Contract, in the case of EPC
Construction Property, will provide for construction, on a turn-key
basis, of the Improvements thereto for a fixed price or a guaranteed
maximum price on or before a date certain and will contain customary
retainage provisions.
(ii) (A) Each GC Construction Contract, in the case of GC
Construction Property, will provide for construction of that portion of
the Improvements to be built pursuant thereto for a fixed price or a
guaranteed maximum price on or before a date certain and will contain
customary retainage provisions.
(B) The Construction Agent has entered into or, with
respect to a Construction Property the Acquisition Date for which has
occurred pursuant to SECTION 4.2(d), will enter into GC Construction
Contracts with respect to each GC Construction Property that, in the
aggregate, will account for at least 80% of the Construction amounts
described in the Budget for such Property.
(iii) The Outside Completion Date for each Construction
Property designated in the Lease Supplement therefor is, as of the
related Acquisition Date, a date which is not later than two (2) months
after the date on which the Lessee in good faith expects to achieve
Substantial Completion with respect to the Improvements to be
constructed on such Property.
(k) TITLE; GROUND LEASE. Each Deed, if any, is in form and
substance sufficient to convey to the Lessor good and marketable title to the
applicable Property and fee simple title to the Land component thereof subject
in each case only to Permitted Liens. Each Ground Lease, if any, is in form and
substance sufficient to convey a valid leasehold interest in the applicable
Land. The Lessor will at all times during the Lease Term have fee simple title
or a valid leasehold interest in all Land and good title to all Improvements,
subject in each case only to Permitted Liens.
(l) INSURANCE. The Lessee carries insurance with reputable
insurers in respect of its material assets, in such manner, in such amounts and
against such risks as is customarily maintained by other Persons of similar size
engaged in similar business.
(m) USE OF FUNDINGS. No part of any Funding will be used
directly or indirectly for the purpose of purchasing or carrying, or for payment
in full or in part of debt that was incurred for the purposes of purchasing or
carrying, any margin security as such term is defined in Regulation U of the
Board of Governors of the Federal Reserve System.
(n) SOLVENCY. The Lessee is Solvent.
6.3 REPRESENTATIONS OF THE LESSEE WITH RESPECT TO EACH ACQUISITION. The
Lessee represents and warrants to the Lessee as of the Acquisition Date for each
Property:
(a) APPRAISAL. The information contained in the Appraisal for
such Property is accurate and complete in all material respects.
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(b) INSURANCE. The insurance in effect with respect to such
Property conforms to the requirements of this Lease or the Construction Agency
Agreement, as applicable.
(c) GENERAL REQUIREMENTS. Such Property (as improved in
accordance with the Plans and Specifications for such Property in the case of a
Construction Property) and the contemplated use thereof by the Lessee and its
agents, assignees, employees, lessees, licensees and tenants will comply in all
material respects with all Requirements of Law (including, without limitation,
all zoning and land use laws) and Insurance Requirements, except for such
Requirements of Law as the Lessee shall be contesting as permitted hereby. All
water, sewer, electric, gas, telephone and drainage facilities and all other
utilities required to adequately service the Improvements on such Property for
its intended use (upon Substantial Completion, in the case of any Construction
Property) will be available pursuant to adequate permits (including any that may
be required under applicable Environmental Laws). There is no action, suit or
proceeding (including any proceeding in condemnation or eminent domain or under
any Environmental Law) pending or, to the best of the Lessee's knowledge,
threatened with respect to the Lessee, its Affiliates or such Property, that is
reasonably likely to have a material adverse effect on the title to, or the use,
operation or value of, such Property. No fire or other casualty with respect to
such Property has occurred which fire or other casualty has had a material
adverse effect on the value or condition of such Property. All utilities serving
such Property are located in, and vehicular access to the Improvements on such
Property is provided by, either public rights-of-way abutting such Property or
Appurtenant Rights. All material licenses, approvals, authorizations, consents,
permits, easements and rights-of-way required for (x) the use, operation and
occupancy of such Property and (y) the use, treatment, storage, transport,
disposal or disposition of any Hazardous Substance on, at, under or from such
Property have either been obtained from the appropriate Governmental Authorities
having jurisdiction or from private parties, as the case may be, or will be
obtained from the appropriate Governmental Authorities having jurisdiction or
from private parties, as the case may be, at or before the time required by
Applicable Law, except in each case for such licenses, approvals,
authorizations, consents, permits, easements and rights-of-way the absence of
which would not have a material adverse effect on the title to, or the use,
operation or value of such Property. No portion of such Property on which
Improvements are or will be located is located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or other
applicable agency.
6.4 REPRESENTATIONS OF THE LESSEE WITH RESPECT TO EACH FUNDING. The
Lessee represents and warrants to the Lessor as of each Funding Date as follows:
(a) CONDITIONS PRECEDENT. All conditions precedent to such
Funding set forth in ARTICLE IV have been satisfied.
(b) IMPROVEMENTS. In the case of a Funding for any Construction
Property, (i) the Construction of the Improvements to such Property to the date
of such Funding has been performed in a good and workmanlike manner,
substantially in accordance with the Plans and Specifications for such Property
and in compliance with all material Insurance Requirements and Requirements of
Law and (ii) all material licenses, approvals, authorizations, consents, permits
(including building, demolition and environmental permits), easements and
rights-of-way required for the Construction of the Improvements to such Property
in accordance with the Plans and Specifications therefor and the Construction
Agency Agreement have either been obtained from the appropriate Governmental
Authorities having jurisdiction or from private parties, as the case may be, and
are in full force and effect or will be obtained from the appropriate
Governmental Authorities having jurisdiction or from private parties, as the
case may be, at or before the time required by all Requirements of Law, except
for such licenses, approvals, authorizations, consents, permits, easements and
rights-of-way the absence of which would not have a material adverse effect on
the title to, or the use, operation or value of such Property.
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(c) LIENS. The Lessee has not permitted Liens to be placed
against any Leased Asset other than Permitted Liens.
(d) AMOUNT OF FUNDINGS. In the case of a Funding with respect to
any Leased Asset other than a Construction Property, the amount of the Funding
requested represents amounts owed (or, in the case of Tenant Improvements or
Transaction Expenses, expected to be owed) to third parties in respect of the
Property Acquisition Costs of such Leased Asset. In the case of a Funding with
respect to a Construction Property, the amount of the Funding requested
represents amounts owed to third parties in respect of Land Acquisition Costs or
owed or paid by the Construction Agent to third parties in respect of Property
Improvements Costs, in each case incurred prior to the date of such Funding and
for which neither the Lessee nor the Construction Agent has previously been
reimbursed by a Funding, PROVIDED that this representation shall not apply to
any portion of a Funding made on Substantial Completion which is to be used to
pay for open punch list items or other holdbacks. With respect to any portion of
a Funding made on Substantial Completion which is to be used to pay for open
punch list items or other holdbacks, the Lessee represents that such portion
will be used for such purpose to the extent that a contractor or subcontractor
is entitled thereto and that neither the Lessee nor the Construction Agent has
previously been reimbursed therefor by a Funding.
ARTICLE VII
PAYMENT OF RENT; FEES; EXCESS TENANT IMPROVEMENT FUNDS
7.1 RENT. The Lessee shall pay Base Rent in arrears on each Leased
Asset on each Payment Date during the Lease Term for such Leased Asset, on the
date required under SECTION 24.1(i) in connection with the Lessee's exercise of
the Remarketing Option and on any date on which this Lease shall terminate. In
addition, if all or any portion of the Lease Balance of any Leased Asset is paid
on any date other than a Payment Date, then the Lessee shall also pay Base Rent
on such Leased Asset on such date in an amount equal to the accrued Base Rent on
the Lease Balance so paid to the date of such payment. Base Rent shall be
calculated as provided in APPENDIX 2.
7.2 PAYMENT OF RENT. Rent shall be paid absolutely net to the Lessor,
so that this Lease shall yield to the Lessor the full amount thereof, without
setoff, deduction or reduction. Neither the Lessee's inability or failure to
take possession of all or any portion of any Leased Asset when delivered by the
Lessor, whether or not attributable to any act or omission of the Lessee or any
act or omission of the Lessor, or for any other reason whatsoever, shall delay
or otherwise affect the Lessee's obligation to pay Rent for such Leased Asset in
accordance with the terms of this Lease.
7.3 SUPPLEMENTAL RENT.
(a) The Lessee shall pay to the Lessor any and all Supplemental
Rent as the same shall become due and payable, and if the Lessee fails to pay
any Supplemental Rent, the Lessor shall have all rights, powers and remedies
provided for herein or by law or equity or otherwise in the case of nonpayment
of Base Rent. The Lessee shall pay to the Lessor, as Supplemental Rent, among
other things, on demand, interest at the applicable Overdue Rate on any amount
payable by the Lessee hereunder or under any other Operative Document (including
Base Rent, Lease Balance, Guaranteed Residual Value or Construction Period
Guaranteed Amount) not paid when due for the period for which the same shall be
overdue until the same shall be paid. The expiration or other termination of the
Lessee's obligations to pay Base Rent hereunder shall not limit or modify the
obligations of the Lessee with respect to Supplemental Rent. Unless expressly
provided otherwise in this Lease, in the event of any failure on the part of the
Lessee to pay and discharge any Supplemental Rent as and when due, the Lessee
shall also promptly pay and discharge any fine, penalty, interest or cost which
may be assessed or added
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under any agreement with a third party for nonpayment or late payment of such
Supplemental Rent, all of which shall also constitute Supplemental Rent.
(b) The Lessor may, with the consent of the Administrative Agent
and the Lessee, enter into the Lessor Interest Rate Hedge. If the Lessor enters
into the Lessor Interest Rate Hedge, then on each date on which any amount is
payable under the Lessor Interest Rate Hedge: (i) if there is a net amount
payable by the Lessor to the Swap Counterparty, then the Lessee will pay to the
Lessor on such date as Supplemental Rent such net amount; and (ii) if there is a
net amount payable by the Swap Counterparty to the Lessee, then the amount then
due and payable by the Lessee to the Lessor will be reduced by the net amount
actually received by the Lessor from the Swap Counterparty on such date. In
addition, if all or any portion of the Lease Balance of any Leased Asset shall
be paid prior to November 22, 2007, or if the Total Commitment shall be reduced
prior to such date, then on the date of such payment or reduction (or as
promptly thereafter as practicable) (i) the Lessor shall reduce the notional
amount of the Lessor Interest Rate Hedge by an amount equal to such payment or
reduction and (ii) the Lessee shall pay to the Lessor the amount of any cost,
premium, penalty or expense payable by the Lessor to the Swap Counterparty in
connection with such reduction.
7.4 COMMITMENT FEE; OPTIONAL REDUCTION OF COMMITMENT.
(a) The Lessee shall pay to the Lessor a commitment fee (the
"COMMITMENT FEE") on the daily average Available Commitment for the period from
the Closing Date to the earlier of the Base Date or the date of termination of
the Commitments at a rate per annum equal to 0.50% per annum. Except for any
portion of the Commitment Fee capitalized pursuant to SECTION 3.2(e), the
accrued Commitment Fee shall be payable as Supplemental Rent on each Payment
Date. The Commitment Fee shall be computed on the basis of the actual number of
days occurring during the period for which such fee is payable over a year of
360 days.
(b) The Lessee may, upon not less than four (4) Business Days'
irrevocable prior notice to the Lessor and the Administrative Agent, reduce
permanently all or any portion of the Total Commitment, PROVIDED that (i) any
partial reduction of the Total Commitment must be in an amount of at least
$5,000,000 and (ii) no such reduction shall result in the Total Commitment being
less than the aggregate of the Maximum Lease Balances for each Property acquired
by the Lessor. The Lessor will, subject to SECTION 3.3, promptly make a
corresponding reduction of the Commitments under the Credit Agreement and of the
Equity Commitments under the Trust Agreement.
7.5 REPAYMENT OF EXCESS FUNDS FOR TENANT IMPROVEMENTS. The Lessee shall
repay to the Lessor any portion of a Funding made with respect to Tenant
Improvements that has not been utilized by the Lessee to pay the cost of such
Tenant Improvements upon the completion of such Tenant Improvements, unless the
portion not so utilized is less than $200,000, in which case such portion may be
retained by the Lessee. Such repayment shall be made on the Payment Date next
following the date of such completion, and the Lease Balance with respect to the
relevant Leased Asset shall be reduced on such Payment Date by the amount of
such payment.
7.6 METHOD OF PAYMENT. Each payment of Rent or any other amount due
hereunder shall be made by the Lessee to the Lessor prior to 1:00 p.m., New York
City time, at the Lessor's account at the Collateral Agent in funds consisting
of lawful currency of the United States of America which shall be immediately
available on the scheduled date when such payment shall be due, unless such
scheduled date shall not be a Business Day, in which case such payment shall be
made on the next succeeding Business Day. Payments received after 1:00 p.m., New
York City time, on any day shall be deemed received on the next succeeding
Business Day.
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ARTICLE VIII
QUIET ENJOYMENT; RIGHT TO INSPECT
8.1 QUIET ENJOYMENT. Subject to SECTIONS 2.5 and 8.2, and subject to
the rights of the Lessor contained herein and the other terms of the Operative
Documents to which the Lessee is a party, the Lessee shall peaceably and quietly
have, hold and enjoy each Leased Asset for the Lease Term applicable thereto,
free of any claim or other action by the Lessor or anyone claiming by, through
or under the Lessor (other than the Lessee) with respect to any matters arising
from and after the Acquisition Date. Such right of quiet enjoyment is
independent of, and shall not affect the Lessor's rights otherwise to initiate
legal action to enforce, the obligations of the Lessee under this Lease.
8.2 RIGHT TO INSPECT. During the Lease Term, the Lessee shall, upon
reasonable notice from the Lessor (except that no notice shall be required if an
Event of Default under this Lease has occurred and is continuing), permit the
Lessor and its authorized representatives to inspect any Leased Asset during
normal business hours. Lessor and its authorized representatives shall maintain
the confidentiality of any confidential information obtained during the course
of any inspection and, at the request and expense of the Lessee, shall execute
and deliver non-disclosure agreements to such effect as may be reasonably
appropriate.
ARTICLE IX
NET LEASE, ETC.
9.1 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 the Lessee be entitled to any abatement, suspension, deferment, reduction,
setoff, counterclaim, or defense with respect to the Rent, nor shall the
obligations of the Lessee hereunder be affected (except as expressly herein
permitted and by performance of the obligations in connection therewith) by
reason of: (i) any defect in the condition, merchantability, design,
construction, quality or fitness for use of any Leased Asset or any part
thereof, or the failure of any Leased Asset to comply with all Requirements of
Law, including any inability to occupy or use any Leased Asset by reason of such
non-compliance; (ii) any damage to, removal, abandonment, salvage, loss,
contamination of or Release from, scrapping or destruction of or any requisition
or taking of any Leased Asset or any part thereof; (iii) any restriction,
prevention or curtailment of or interference with any use of any Leased Asset or
any part thereof including eviction; (iv) any defect in title to or rights to
any Leased Asset or any Lien on such title or rights or on any Leased Asset
(other than Lessor Liens); (v) any change, waiver, extension, indulgence or
other action or omission or breach in respect of any obligation or liability of
or by the Lessor; (vi) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceedings relating to the
Lessee or any other Person, or any action taken with respect to this Lease by
any trustee or receiver of the Lessee or any other Person, or by any court, in
any such proceeding; (vii) any claim that the Lessee has or might have against
any Person, including without limitation the Lessor and any vendor,
manufacturer, contractor of or for any portion of any Leased Asset; (viii) any
failure on the part of the Lessor to perform or comply with any of the terms of
this Lease (other than performance by Lessor of its obligations set forth in
SECTION 2.1), of any other Operative Document or of any other agreement; (ix)
any invalidity or unenforceability or illegality or disaffirmance of this Lease
against or by the Lessee or any provision hereof or any of the other Operative
Documents or any provision of any thereof; (x) any restriction, prevention or
curtailment of or interference with the construction on or any use of any Leased
Asset or any part thereof; or (xi) any other cause or circumstances, similar to
the foregoing and whether or not the Lessee shall have notice or knowledge of
any of the foregoing. The agreement of the Lessee in the preceding sentence
shall not affect any claim, action or right that the Lessee may have against the
Lessor or any other Person. The
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parties intend that the obligations of the Lessee hereunder shall be covenants
and agreements that are separate and independent from any obligations of the
Lessor or any other Person hereunder or under any other Operative Documents and
the obligations of the Lessee shall continue unaffected unless such obligations
shall have been modified or terminated in accordance with an express provision
of this Lease.
9.2 NO TERMINATION OR ABATEMENT. The 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 the Lessor, or any action with respect to this Lease which
may be taken by any trustee, receiver or liquidator of the Lessor or by any
court with respect to the Lessor. The Lessee hereby waives all right (i) to
terminate or surrender this Lease (except as provided herein) or (ii) to avail
itself of any abatement, suspension, deferment, reduction, setoff, counterclaim
or defense with respect to any Rent. The Lessee shall remain obligated under
this Lease in accordance with its terms and the Lessee hereby waives any and all
rights now or hereafter conferred by statute or otherwise to modify or to avoid
strict compliance with its obligations under this Lease. Notwithstanding any
such statute or otherwise, the Lessee shall be bound by all of the terms and
conditions contained in this Lease.
ARTICLE X
SUBLEASES
10.1 SUBLETTING. The Lessee may not, without the consent of the Lessor,
sublease any Leased Asset or any portion thereof to any Person, except that the
Lessee may sublease a portion of any Leased Asset to (a) any Affiliate of the
Lessee or (b) any other Person if (i) the Lessee continues to occupy a material
portion of such Leased Asset and (ii) no Event of Default shall have occurred
and be continuing on the date on which such sublease commences or would result
therefrom. No sublease or other relinquishment of possession of such Leased
Asset shall in any way discharge or diminish any of the Lessee's obligations to
the Lessor hereunder and the Lessee shall remain directly and primarily liable
under this Lease as to such Leased Asset, or portion thereof, so sublet. Any
sublease of such Leased Asset shall expressly be made subject to and
subordinated to this Lease and to the rights of the Lessor hereunder and shall
have a scheduled expiration date that occurs prior to the Expiration Date. In
connection with any sublease, the Lessee may request the Lessor to enter into a
customary non-disturbance agreement with the sublessee. The Lessor will act in a
commercially reasonable manner in determining whether or not to enter into such
non-disturbance agreement.
ARTICLE XI
LESSEE ACKNOWLEDGMENTS
11.1 CONDITION OF THE LEASED ASSETS. THE LESSEE ACKNOWLEDGES AND AGREES
THAT IT IS LEASING EACH LEASED ASSET "AS IS" WITHOUT, EXCEPT AS EXPRESSLY
OTHERWISE PROVIDED HEREIN, REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) BY THE LESSOR AND 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 AND (D) VIOLATIONS OF
REQUIREMENTS OF LAW WHICH MAY EXIST ON THE DATE HEREOF OR AT ANY TIME HEREAFTER.
THE LESSOR HAS NOT MADE, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED HEREIN, AND
SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) AND SHALL NOT BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS
TO THE TITLE (OTHER THAN FOR LESSOR LIENS), VALUE, HABITABILITY, USE, CONDITION,
DESIGN, OPERATION, OR
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FITNESS FOR USE OF ANY LEASED ASSET (OR ANY PART THEREOF), OR ANY OTHER
REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY LEASED ASSET (OR ANY PART THEREOF) OR ANY MODIFICATION THERETO
AND THE LESSOR SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT
THEREIN (OTHER THAN FOR LESSOR LIENS) OR THE FAILURE OF ANY LEASED ASSET, OR ANY
PART THEREOF, TO COMPLY WITH ANY REQUIREMENTS OF LAW. THE LESSEE FURTHER
ACKNOWLEDGES AND AGREES THAT ALTHOUGH THE LESSOR WILL OWN AND HOLD TITLE TO THE
IMPROVEMENTS, THE CONSTRUCTION AGENT IS SOLELY RESPONSIBLE UNDER THE TERMS OF
THE CONSTRUCTION AGENCY AGREEMENT FOR THE DESIGN, DEVELOPMENT, BUDGETING AND
CONSTRUCTION OF THE IMPROVEMENTS TO ANY CONSTRUCTION PROPERTY.
11.2 RISK OF LOSS. During the Lease Term for any Leased Asset, the risk
of loss of or decrease in the enjoyment and beneficial use of such Leased Asset
as a result of the damage or destruction thereof by fire, the elements,
casualties, thefts, riots, wars or otherwise is assumed by the Lessee, and the
Lessor shall in no event be answerable or accountable therefor.
ARTICLE XII
POSSESSION AND USE, ETC.
12.1 POSSESSION AND USE. Each Leased Asset shall be used in a manner
consistent with the standards applicable to properties of a similar nature and
in any event not less than the standards applied by the Lessee and its
Affiliates for other comparable properties owned or leased by the Lessee and its
Affiliates. The Lessee shall not commit or permit any waste of such Leased Asset
or any part thereof.
12.2 CHARGES. The Lessee shall pay, or cause to be paid, all charges
and costs required in connection with the use of such Leased Asset as
contemplated by this Lease. The Lessee shall pay or cause to be paid all rents
and charges for electricity, steam, gas, oil, water, telephone, water, sewer and
all other utilities and services used in or on or furnished to each Property
through the Expiration Date. The Lessee shall be entitled to receive any credit
or refund with respect to any utility charge paid by the Lessee with respect to
any Property prior to the Expiration Date and the amount of any credit or refund
actually received by the Lessor on account of any such utility charges, net of
the costs and expenses reasonably incurred by the Lessor in obtaining such
credit or refund, shall be promptly paid over to the Lessee.
12.3 IMPOSITIONS. The Lessee shall pay, or cause to be paid, all
Impositions. The Lessee shall be entitled to receive any credit or refund with
respect to any Imposition paid by the Lessee with respect to any Leased Asset
prior to the Expiration Date with respect to periods after the Expiration Date
and the amount of any credit or refund actually received by the Lessor on
account of any such Imposition, net of the costs and expenses reasonably
incurred by the Lessor in obtaining such credit or refund, shall be promptly
paid over to the Lessee.
12.4 COMPLIANCE WITH REQUIREMENTS OF LAW AND INSURANCE REQUIREMENTS.
Subject to the terms hereof relating to permitted contests, the Lessee, at its
sole cost and expense, shall (i) comply in all material respects with all
Requirements of Law and Insurance Requirements relating to each Leased Asset
during the Lease Term applicable thereto, including the construction, use,
operation, maintenance, repair and restoration thereof and the remarketing
thereof pursuant to ARTICLE XXIV, whether or not compliance therewith shall
require structural or extraordinary changes in any Improvements or interfere
with the use and enjoyment of such Leased Asset, and (ii) procure, maintain and
comply in all material respects with
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all material licenses, permits, orders, approvals, consents and other
authorizations required for the construction, use, operation, maintenance,
repair and restoration of the Leased Assets.
ARTICLE XIII
MAINTENANCE AND REPAIR; RETURN
13.1 MAINTENANCE AND REPAIR.
(a) The Lessee, at its sole cost and expense, shall maintain
each Leased Asset during the Lease Term applicable thereto in good condition
(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 Requirements of Law and Insurance Requirements and on a
basis consistent with the operation and maintenance of properties comparable in
type to such Leased Asset and in no event less than the standards applied by the
Lessee and its Affiliates in the operation and maintenance of other comparable
properties owned or leased by the Lessee and its Affiliates.
(b) The Lessor shall under no circumstances be required to build
any improvements on any Property, make any replacements, alterations or renewals
of any nature or description to any Leased Asset or make any expenditure
whatsoever in connection with this Lease (other than for Fundings made in
accordance with and pursuant to the terms of this Lease). The Lessor shall not
be required to maintain, repair or rebuild all or any part of any Leased Asset,
and the Lessee waives any right to (i) require the Lessor to maintain, repair,
or rebuild all or any part of any Leased Assets, or (ii) make repairs at the
expense of the Lessor pursuant to any Requirement of Law, Insurance Requirement,
contract, agreement, or covenant, condition or restriction in effect at any
time.
13.2 RETURN. The Lessee shall, upon the expiration or earlier
termination of this Lease, vacate and surrender the Leased Assets to the Lessor
in their respective then-current condition, subject to the Lessee's obligations
under SECTIONS 12.4, 13.1, 14.1, 15.1, 18.1(d), 18.2 and 24.1, unless the Lessee
has purchased the Leased Assets from the Lessor as provided herein.
ARTICLE XIV
MODIFICATIONS, ETC.
14.1 MODIFICATIONS, SUBSTITUTIONS AND REPLACEMENTS. After the date of
Substantial Completion for any Construction Property and after the Acquisition
Date for any other Leased Asset, the Lessee, at its sole cost and expense, may
at any time and from time to time make alterations, renovations, improvements
and additions to such Leased Asset or any part thereof and substitutions and
replacements therefor (collectively, "MODIFICATIONS"); PROVIDED, HOWEVER, that:
(i) except for any Modification required to be made pursuant to any Requirements
of Law (a "REQUIRED MODIFICATION"), no Modification shall impair the value,
utility or useful life of such Leased Asset or any part thereof from that which
existed immediately prior to such Modification; (ii) the Modification shall be
done expeditiously and in a good and workmanlike manner; (iii) the Lessee shall
comply with all material Requirements of Law and Insurance Requirements
applicable to the Modification, including the obtaining of all permits and
certificates of occupancy, and the structural integrity of such Leased Asset
shall not be adversely affected; (iv) subject to the terms of ARTICLE XVI
relating to permitted contests, the Lessee shall pay all costs and expenses and
shall discharge (or cause to be insured or bonded over) within sixty (60) days
after the same shall be filed (or otherwise become effective) any Liens arising
with respect to the Modification; (v) such Modifications shall comply with
SECTION 13.1(a); and (vi) the Lessee shall be required to obtain the prior
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written approval of the Lessor, which approval shall not be unreasonably
withheld, with respect to any alterations (other than Required Modifications)
that shall (A) materially affect any structural element of the Improvements to
any Property or major building system therein, or (B) cost in excess of the
Threshold Amount or (C) materially change the nature of the Improvements to any
Property or the amount of usable area therein or the utility thereof for the
purposes contemplated by the Lessor and the Lessee as of the date of the Lease
Supplement therefor. All Modifications shall remain part of such Leased Asset
and shall be subject to this Lease and title thereto shall immediately vest in
the Lessor; PROVIDED, HOWEVER, that Modifications that meet each of the
following conditions shall not be subject to this Lease: (x) such Modifications
are not Required Modifications, (y) such Modifications were not financed by the
Lessor and (z) such Modifications are readily removable without impairing the
value, utility or remaining useful life of the related Leased Asset. So long as
no Event of Default has occurred and is continuing, the Lessee may place upon
each Leased Asset any trade fixtures, machinery, equipment or other property
belonging to the Lessee or third parties and may remove the same at any time
during the Lease Term, subject, however, to the terms of SECTION 13.1; PROVIDED
that such trade fixtures, machinery, equipment or other property do not
materially impair the value, utility or remaining useful life of such Leased
Asset; and PROVIDED, FURTHER, that the Lessee shall keep and maintain at each
Property and shall not remove from such Property any Equipment financed or
otherwise paid for (directly or indirectly) by the Lessor pursuant to this
Lease. Notwithstanding the foregoing proviso, so long as no Event of Default has
occurred and is continuing, the Lessee may substitute other equipment for such
Equipment, which substituted equipment shall have a Fair Market Sales Value and
remaining useful life at least equivalent to the Equipment for which it was
substituted and, without further act, such substituted equipment shall be
Equipment hereunder and be part of the applicable Property.
14.2 TENANT IMPROVEMENTS. All Tenant Improvements for any Property
shall be considered to be Modifications within the meaning of SECTION 14.1. The
Lessee will cause such Tenant Improvements to be completed in a good and
workmanlike manner as promptly as practicable and, in any event, not later than
nine (9) months after the Acquisition Date for each Property.
ARTICLE XV
WARRANT OF TITLE; EASEMENTS
15.1 WARRANT OF TITLE.
(a) Except as otherwise provided herein and subject to the terms
of ARTICLE XVI relating to permitted contests, the Lessee shall not directly or
indirectly create or allow to remain, and shall promptly discharge at its sole
cost and expense, any Lien, attachment or levy upon any Leased Asset or any
Modifications or any Lien, attachment or levy with respect to the Rent, other
than Permitted Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of the 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, modification, addition, repair or demolition of or to any
Leased Asset or any part thereof. NOTICE IS HEREBY GIVEN THAT THE LESSOR IS NOT
AND SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE
FURNISHED TO THE LESSEE, OR TO ANYONE HOLDING ANY LEASED ASSET OR ANY PART
THEREOF THROUGH OR UNDER THE LESSEE, AND THAT NO MECHANIC'S OR OTHER LIENS FOR
ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF
THE LESSOR IN AND TO ANY LEASED ASSET.
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15.2 GRANTS AND RELEASES OF EASEMENTS; LESSOR'S WAIVERS. Provided
that no Default or Event of Default shall have occurred and be continuing and
subject to the provisions of ARTICLES XII, XIII and XIV, the Lessor hereby
consents in each instance to the following actions by the Lessee, but at the
Lessee's sole cost and expense: (a) the granting of easements, licenses,
rights-of-way and other rights and privileges in the nature of easements
reasonably necessary or desirable for the use, repair, or maintenance of any
Property as herein provided and to give effect to the state of title in effect
for such Property as set forth in the title policy therefor; (b) the release of
existing easements or other rights in the nature of easements which are for the
benefit of any Property; (c) if required by applicable Governmental Authority,
the dedication or transfer of unimproved portions of any Land for road, highway
or other public purposes; and (d) the execution of amendments to any covenants
and restrictions affecting any Property; PROVIDED, HOWEVER, that in each case
(i) such grant, release, dedication, transfer or amendment does not materially
impair the value, utility or remaining useful life of any Property, (ii) such
grant, release, dedication, transfer or amendment is reasonably necessary in
connection with the use, maintenance, alteration or improvement of any Property,
(iii) such grant, release, dedication, transfer or amendment will not cause any
Property or any portion thereof to fail to comply in any material respect with
the provisions of this Lease or any other Operative Document and all
Requirements of Law; (iv) all governmental consents or approvals required prior
to such grant, release, dedication, transfer or amendment have been obtained,
and all filings required prior to such action have been made; (v) such grant,
release, dedication, transfer or amendment will not result in any down-zoning of
any Property or any portion thereof or a material reduction in the maximum
density or development rights available to any Property under all Requirements
of Law; (vi) the Lessee shall remain obligated under this Lease and under any
Operative Document executed by the Lessee consenting to the assignment of the
Lessor's interest in this Lease as security for Fundings made by it to the
Lessor, in each such case in accordance with their terms, as though such grant,
release, dedication, transfer or amendment had not been effected; and (vii) the
Lessee shall pay and perform any obligations of the Lessor under such grant,
release, dedication, transfer or amendment. The Lessor acknowledges the Lessee's
right to finance and to secure under the Uniform Commercial Code, inventory,
furnishings, furniture, equipment, machinery, leasehold improvements and other
personal property located at any Property other than Equipment, and Lessor
agrees to execute landlord waiver forms in favor of any purchase money seller,
lessor or lender which has financed or provided or may finance or provide in the
future such items. Without limiting the effectiveness of the foregoing, PROVIDED
that no Default or Event of Default shall have occurred and be continuing, the
Lessor shall, upon the request of the Lessee, and at the Lessee's sole cost and
expense, execute and deliver any instruments necessary or appropriate to confirm
any such grant, release, dedication, transfer or amendment to any Person
permitted under this SECTION 15.2, including landlord waivers with respect to
any of the foregoing.
ARTICLE XVI
PERMITTED CONTESTS
16.1 PERMITTED CONTESTS.
(a) The Lessee shall not be required to pay any Imposition on
any Leased Asset, or to discharge or remove any Lien on any Leased Asset, or to
comply or cause any Leased Asset to comply with any Requirements of Law
applicable thereto or the occupancy, use or operation thereof, so long as no
Event of Default exists under this Lease and, in the opinion of the Lessee's
counsel, the Lessee shall have reasonable grounds to contest the existence,
amount, applicability or validity thereof by appropriate proceedings, which
proceedings in the reasonable judgment of the Lessor, (i) shall not involve any
material danger that any Leased Asset or any Base Rent or any Supplemental Rent
would be subject to sale, forfeiture or loss, as a result of failure to comply
therewith, (ii) shall not affect the payment of any Base Rent or any
Supplemental Rent or result in any such amounts being payable to any Person
other
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than the Lessor or the Collateral Agent, (iii) will not place the Lessor
or any other Indemnitee in any danger of civil liability for which the Lessor or
such Indemnitee is not adequately indemnified (the Lessee's obligation under
SECTION 27.1 of this Lease shall be deemed to be adequate indemnification if no
Default or Event of Default exists and if such civil liability is reasonably
likely to be less than $100,000 per Leased Asset and $500,000 in the aggregate)
or to any criminal liability, (iv) if involving Taxes, shall suspend the
collection of such Taxes, and (v) shall be permitted under and be conducted in
accordance with the provisions of any other instrument to which the Lessee or
the Leased Asset is subject and shall not constitute a default thereunder (a
"PERMITTED CONTEST"). The Lessee shall conduct all Permitted Contests in good
faith and with due diligence and shall promptly after the final determination
(including appeals) of any Permitted Contest, pay and discharge all amounts
which shall be determined to be payable therein. The Lessor shall cooperate in
good faith with the Lessee with respect to all Permitted Contests conducted by
the Lessee pursuant to this SECTION 16.1.
(b) Promptly following the commencement of any Permitted
Contest, the Lessee shall notify the Lessor in writing thereof if the amount in
contest exceeds $100,000, and shall describe such proceeding in reasonable
detail. In the event that a taxing authority or subdivision thereof proposes an
additional assessment or levy of any Tax for which the Lessee is obligated to
reimburse the Lessor under this Lease, or in the event that the Lessor is
notified of the commencement of an audit or similar proceeding which could
result in such an additional assessment, then the Lessor shall in a timely
manner notify the Lessee in writing of such proposed levy or proceeding.
ARTICLE XVII
INSURANCE
17.1 PUBLIC LIABILITY AND WORKERS' COMPENSATION INSURANCE. During the
Lease Term for each Property, the Lessee shall procure and carry commercial
general liability insurance for claims for bodily injury or death sustained by
persons or damage to property while on such Property and such other public
liability coverages as are ordinarily procured by the Lessee or its Affiliates
who own or operate similar properties. Such insurance shall be on terms and in
amounts that are materially no less favorable than insurance maintained by the
Lessee or its Affiliates with respect to similar properties that they own and
that are in accordance with normal industry practice in the state in which such
Property is located, PROVIDED that such insurance shall at all times be in an
amount of not less than $10,000,000 with respect to any one occurrence,
accident, disaster or incidence of negligence and not less than $25,000,000 in
the aggregate. The Lessee shall, in connection with the operation of any
Property and the making of any Modifications thereto, comply with, and cause any
applicable contractor to comply with, all applicable workers' compensation laws.
17.2 HAZARD AND OTHER INSURANCE. During the Lease Term for each
Property, the Lessee shall keep, or cause to be kept, such Property insured
against loss or damage by fire, earthquake, flood and other risks on terms and
in amounts that are no less favorable than insurance covering other similar
properties owned by the Lessee or its Affiliates and that are in accordance with
normal industry practice, PROVIDED that such insurance shall at all times be in
an amount not less than the greater of the Lease Balance of such Property or the
replacement cost thereof.
17.3 INSURANCE COVERAGE.
(a) The insurance required under SECTIONS 17.1 and 17.2 shall
name the Lessor, the Trustee, FUNB (as defined in the Trust Agreement), the
Administrative Agent, the Collateral Agent, the Equity Participants and the
Lenders as additional insureds with respect to liability coverage (excluding
worker's compensation insurance), and shall name the Collateral Agent as loss
payee with respect to
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property coverage. Such insurance may provide for deductible amounts of up to
(i) $1,000,000, if the Applicable Leverage Ratio is less than or equal to 5.50
to 1, and (ii) $250,000, if the Applicable Leverage Ratio is greater than 5.50
to 1, per occurrence and may be obtained by Lessee by endorsement on its blanket
insurance policies provided that each Property shall be separately scheduled so
that no loss at any other property shall reduce the amount payable with respect
to such Property except for the perils of flood and earthquake, where aggregate
limits are usual and customary. All such insurance shall be at the sole cost and
expense of the Lessee and shall be maintained with respect to each Leased Asset
from the Lease Commencement Date thereof through the Expiration Date. Such
certificates shall include a provision for no less than ten (10) days' advance
written notice by the insurer to the Lessor in the event of cancellation or
material change of such insurance.
(b) The Lessee agrees that the insurance policy or policies
required by SECTIONS 17.1 and 17.2, shall include an appropriate clause pursuant
to which such policy shall provide that it will not be invalidated should the
Lessee waive, in writing, prior to a loss, any or all rights of recovery against
any party for losses covered by such policy, and that the insurance in favor of
the Lessor and the other additional insureds and their rights under and
interests in said policies shall not be invalidated or reduced by any act or
omission or negligence of the Lessee or any other Person having any interest in
any Leased Asset. The Lessee and the Lessor each hereby waives any and all
rights against the other for loss or damage to or loss of use of its property to
the extent of payments made under its property insurance so long as such waiver
shall not affect its rights to recover under such insurance.
(c) Except as otherwise permitted by clause (d), all such
insurance shall be written by reputable insurance companies that are financially
sound and solvent and otherwise reasonably appropriate considering the amount
and type of insurance being provided by such companies. Any insurance company
selected by the Lessee shall be rated in Best's Insurance Guide or any successor
thereto and shall have a general policyholder rating of "A-" and a financial
size rating of at least "IX" at the time of issuance of a policy or be otherwise
acceptable to the Lessor. All insurance policies required by SECTION 17.2 shall
include a standard form mortgagee endorsement in favor of the Lessor.
(d) The Lessor shall not carry separate insurance concurrent in
kind or form or contributing in the event of loss with any insurance required
under this ARTICLE XVII except that the Lessor may carry separate liability
insurance so long as (i) the Lessee's insurance is designated as primary and in
no event excess or contributory to any insurance the Lessor may have in force
which would apply to a loss covered under the Lessee's policy and (ii) each such
insurance policy will not cause the Lessee's insurance required under this
ARTICLE XVII to be subject to a coinsurance exception of any kind. Each policy
maintained by the Lessee shall specifically provide that the policy shall be
considered primary insurance which shall apply to any loss or claim before any
contribution by any insurance which the Lessor may have in force.
(e) The Lessee shall pay as they become due all premiums for the
insurance required by SECTION 17.1 and SECTION 17.2, and shall renew or replace
each policy prior to the expiration date thereof. Throughout the Lease Term for
any Leased Asset, at the time each of the Lessee's insurance policies is
renewed, the Lessee shall deliver to the Lessor and the Collateral Agent
certificates of insurance evidencing that all insurance required by this ARTICLE
XVII with respect to such Leased Asset is being maintained by the Lessee and is
in effect.
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(f) All insurance proceeds in respect of any property damage
loss or occurrence during the Lease Term for any Leased Asset for which the
proceeds related thereto are (i) less than or equal to the Threshold Amount, in
the absence of the occurrence and continuance of a Default or Event of Default,
shall be adjusted by and paid to the Lessee for application toward the
reconstruction, repair or refurbishment of the applicable Leased Asset and (ii)
greater than the Threshold Amount, shall be adjusted jointly by the Lessee, the
Lessor and the Collateral Agent (unless a Default or Event of Default has
occurred and is continuing, in which case such proceeds shall be adjusted solely
by the Collateral Agent) and held by the Collateral Agent for application in
accordance with ARTICLE XVIII.
ARTICLE XVIII
CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS
18.1 CASUALTY AND CONDEMNATION.
(a) During the Lease Term for any Leased Asset, subject to the
provisions of this ARTICLE XVIII and ARTICLE XIX, if such Leased Asset is
subject to a Casualty or a Condemnation, then:
(i) in the case of a Casualty where the cost of
restoration of the affected Leased Asset in the reasonable judgment of
the Lessor and the Collateral Agent is (x) less than or equal to the
Threshold Amount, any insurance proceeds payable with respect to such
Casualty shall be paid directly to the Lessee, or if received by the
Lessor or Collateral Agent, shall be paid over to the Lessee for the
reconstruction, refurbishment and repair of such Leased Asset, (y)
greater than the Threshold Amount, any insurance proceeds payable with
respect to such Casualty shall be paid to the Collateral Agent but may
be obtained by the Lessee and used for the purpose of reconstructing,
refurbishing and repairing the affected Leased Asset if the Lessee
submits to the Lessor and the Collateral Agent within one hundred
eighty (180) days of the date of such Casualty a certificate to the
effect that such Leased Asset can be fully restored prior to the
Expiration Date and as to the cost of such restoration (accompanied by
an Architect's certificate as to the foregoing matters) plus a
statement as to the Lessee's affirmative ability to finance such
restoration to the extent the cost thereof exceeds such proceeds, and
upon receipt of such certificates in form reasonably satisfactory to
the Lessor and the Collateral Agent such amounts shall be made
available to the Lessee to pay restoration costs as incurred and if the
foregoing certificates are not delivered to the Lessor and the
Collateral Agent such proceeds may at the request of the Required
Participants be applied toward the payment of the Lease Balance for
such Leased Asset; and
(ii) in the case of a Condemnation such award or
compensation shall be paid to the Collateral Agent to be applied by the
Collateral Agent, after consultation with the Required Participants, to
the restoration of the affected Leased Asset if reasonably practicable
or otherwise toward the payment of the Lease Balance;
PROVIDED, HOWEVER, that if a Default or Event of Default shall have occurred and
be continuing, such award, compensation or insurance proceeds shall be paid
directly to the Collateral Agent or, if received by the Lessee, shall be held in
trust for the Collateral Agent and shall be paid over by the Lessee to the
Collateral Agent. If, contrary to such provision, any such award, compensation
or insurance proceeds are paid to Lessee rather than to the Lessor, the Lessee
hereby agrees to hold the same in trust for the benefit of the Lessor and to
transfer promptly any such payment to the Lessor. All amounts held by the
Collateral Agent on account of any award, compensation or insurance proceeds
when a Default or Event of Default exists shall at the option of the Required
Participants either be (i) paid to the Lessee for the repair of damage caused by
such Casualty or Condemnation or (ii) applied toward the payment of the
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Lease Balance of the affected Leased Asset or (iii) used by the Collateral Agent
to pay for the repair of damage caused by such Casualty or Condemnation on
behalf of the Lessor.
(b) During the Lease Term for any Leased Asset, the 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
Casualty or Condemnation with respect to such Leased Asset and shall pay all
expenses thereof. At the Lessee's reasonable request, and at the Lessee's sole
cost and expense, the Lessor shall participate in any such proceeding, action,
negotiation, prosecution or adjustment. The Lessor and the Lessee agree that
this Lease shall control the rights of the Lessor and the Lessee in and to any
such award, compensation or insurance payment.
(c) If the Lessor or the Lessee shall receive notice of a
Casualty or of an actual, pending or threatened Condemnation of any Leased Asset
or any interest therein, the Lessor or the Lessee, as the case may be, shall
give notice thereof to the other and to the Collateral Agent promptly after the
receipt of such notice.
(d) If a Casualty or Condemnation shall occur with respect to
any Leased Asset during the Lease Term applicable thereto, then unless the Lease
Term is to be terminated pursuant to SECTION 19.1 the Lessee shall, at its sole
cost and expense (and, without limitation, if any award, compensation or
insurance payment is not sufficient to restore such Leased Asset in accordance
with this paragraph, the Lessee shall pay the shortfall), promptly and
diligently repair any damage to such Leased Asset caused by such Casualty or
Condemnation as soon as practicable after the date of such Casualty and in
conformity with the requirements of SECTIONS 13.1 and 14.1 using the as-built
plans and specifications for such Property (as modified to give effect to any
subsequent Modifications, any Condemnation affecting such Property and all
applicable Requirements of Law) so as to restore such Leased Asset to at least
the same condition, operation, function and value as existed immediately prior
to such Casualty or Condemnation with such Modification as the Lessee may elect
in accordance with SECTION 14.1. Upon completion of such restoration, the Lessee
shall furnish the Lessor a certificate, in each case and, in the case of any
Property, an Architect's certificate in each case confirming that such
restoration has been completed pursuant to this Lease.
(e) In no event shall a Casualty or Condemnation affect the
Lessee's obligations to pay Rent pursuant to SECTION 7.1 or to perform its
obligations and pay any amounts due on the Expiration Date or pursuant to
ARTICLES XXII and XXV.
(f) Provided that no Default or Event of Default has occurred
and is continuing, any Excess Proceeds received by the Lessor and held by the
Collateral Agent in respect of a Casualty or Condemnation affecting any Leased
Asset shall be turned over to the Lessee upon the full payment of the Lease
Balance for such Leased Asset and all other amounts then due and payable
hereunder with respect to such Leased Asset.
18.2 ENVIRONMENTAL MATTERS. Promptly upon the Lessee's knowledge of
the existence of an Environmental Violation with respect to any Property, the
Lessee shall notify the Lessor and the Collateral Agent in writing of such
Environmental Violation if the cost of remediation could reasonably be expected
to exceed $100,000. If the cost of remediation of such Environmental Violation
would not exceed the limits set forth in SECTION 19.1, the Lessee will promptly
and diligently undertake any response, cleanup, remedial or other action
required under any Requirements of Law of the Lessor or the Lessee to remove,
cleanup or mediate such Environmental Violation, at the Lessee's sole cost and
expense. If the cost of such remediation would exceed the limits set forth in
SECTION 19.1, the Lessor may elect to terminate the Lease with respect to such
Property pursuant to SECTION 19.1 or, alternatively, the Lessor may request that
the Lessee undertake any response, cleanup, remedial or other action required
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under any Requirements of Law of the Lessor or Lessee to remove, clean up or
remediate the Environmental Violation in accordance with the terms of SECTION
12.4, at the Lessee's sole cost and expense. If the Lessor does not deliver a
termination notice with respect to such Property pursuant to SECTION 19.1, then
the Lessee shall undertake such response, cleanup, remedial or other action, and
the Lessee shall, upon completion of remedial action by the Lessee, cause to be
prepared by an environmental consultant reasonably acceptable to the Lessor a
report describing the Environmental Violation and the actions taken by the
Lessee (or its agents) in response to such Environmental Violation, along with a
statement by the Lessee that the Environmental Violation has been remedied to
the satisfaction of the Government Authority exercising jurisdiction, or in
compliance in all material respects with applicable Environmental Law. Nothing
in this Section shall reduce or limit the Lessee's obligations under the
indemnity provisions hereof.
18.3 NOTICE OF ENVIRONMENTAL CLAIMS. Promptly, but in any event
within thirty (30) days from the date the Lessee has knowledge thereof, the
Lessee shall provide to the Lessor and the Collateral Agent written notice of
any pending or threatened claim, action or proceeding involving any
Environmental Law or any Release on or in connection with any Property. All such
notices shall describe in reasonable detail the nature of the claim, action or
proceeding and the Lessee's proposed response thereto. In addition, the Lessee
shall provide to the Lessor and the Collateral Agent, within thirty (30) days of
receipt, copies of all written communications with any Governmental Authority
relating to any Environmental Violation in connection with any Property. The
Lessee shall also promptly provide such detailed reports of any such
environmental claims, actions or proceedings as may reasonably be requested by
the Lessor. In the event that the Lessor receives written notice of any pending
or threatened claim, action or proceeding involving any Environmental Law or any
Release on or in connection with any Property, the Lessor shall promptly give
notice thereof to the Lessee and the Collateral Agent.
ARTICLE XIX
TERMINATION OF LEASE
19.1 TERMINATION UPON CERTAIN EVENTS. If, with respect to any Leased
Asset, any of:
(i) a Significant Casualty or a Significant Condemnation occurs;
or
(ii) an Environmental Violation occurs or is discovered and the
cost of remediation thereof for the affected Leased Asset would exceed
30% of the then current Lease Balance for such Leased Asset, but in no
event less than $750,000, and the Lessor shall have given written
notice to the Lessee that this Lease is to be terminated as to the
affected Leased Asset as a consequence of the occurrence of such event;
then, except as provided in SECTION 19.3, the Lessee shall be obligated to
purchase the Lessor's interest in such Leased Asset on or prior to the date
occurring one hundred eighty (180) days after the date of such Significant
Casualty or Significant Condemnation or the Lessee's receipt of termination
notice, as the case may be, by paying the Lessor an amount equal to the Lease
Balance therefor on such date of payment; PROVIDED, HOWEVER, that the Lessor
shall not give such notice with respect to any Environmental Violation if the
Lessee (x) promptly submits an approved corrective action plan for the
remediation, on or prior to the Expiration Date, of such Environmental Violation
to the Lessor, (y) provides security to the Lessor for the cost of such
remediation, which security must be satisfactory to the Lessor in its sole
discretion, and (z) diligently pursues such remediation in accordance with such
plan.
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19.2 TERMINATION PROCEDURES. On the date of the payment by the Lessee
of the Lease Balance for the affected Leased Asset in accordance with SECTION
19.1, this Lease shall terminate with respect to such affected Leased Asset and
the provisions of SECTION 25.1 shall be applicable.
19.3 PROPERTY UNDER CONSTRUCTION. Notwithstanding anything to the
contrary in SECTION 19.1, if a Significant Casualty or a Significant
Condemnation occurs with respect to any Construction Property prior to the
commencement of the Lease Term applicable thereto, and if such Significant
Casualty or Significant Condemnation did not result from the Lessee's (or
Construction Agent's) actions or failure to act, then provided that no
Construction Agency Agreement Event of Default has occurred and is continuing
(i) the Lessee shall not be obligated to purchase such Property from the Lessor,
(ii) the Lessor's obligation to make further Fundings with respect to such
Property shall terminate, (iii) the Lessor shall be entitled to retain the
proceeds of any award, compensation or insurance with respect thereto until it
shall have received an amount equal to the Lease Balance for such Property plus
all other amounts then due and payable hereunder with respect to such Property,
(iv) the Lessee may, at its option, by notice given to the Lessor not more than
thirty (30) days after the occurrence of such Significant Casualty or
Significant Condemnation, purchase such Property from the Lessor on the next
following Scheduled Payment Date, which purchase shall be made in accordance
with and subject to the conditions of SECTION 22.1, except that the Lessee shall
not be required to purchase all of the Leased Assets in connection with the
purchase of such Property, and (v) unless the Lessee has exercised such purchase
option, the Lessee shall promptly surrender such Property to the Lessor.
ARTICLE XX
EVENTS OF DEFAULT; REMEDIES
20.1 EVENTS OF DEFAULT. The occurrence of any one or more of the
following events (whether such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body) shall constitute an "EVENT OF DEFAULT":
(a) PAYMENT. the Lessee shall fail to make payment of (i) any
Purchase Option Price, Guaranteed Residual Value or Lease Balance when due or
(ii) Base Rent, Supplemental Rent or any other amount payable hereunder when due
and such Base Rent, Supplemental Rent or other amount shall not be paid in full
within three (3) Business Days after the due date therefor; or
(b) INSURANCE. the Lessee shall fail to maintain insurance as
required by ARTICLE XVII of this Lease; or
(c) OTHER COVENANTS. the Lessee shall fail to observe or perform
any term, covenant or condition of the Lessee under this Lease or the other
Operative Documents to which it is party other than those described in SECTION
20.1(a) OR (b) hereof, and, in each such case, such failure shall have continued
for thirty (30) days after the earlier of (i) delivery to the Lessee of written
notice thereof from the Lessor or (ii) a Responsible Employee of the Lessee
shall have knowledge that such failure, if not cured, will constitute an Event
of Default; or
(d) REPRESENTATIONS AND WARRANTIES OF LESSEE. any representation
or warranty made by the Lessee in any of the Operative Documents to which it is
a party or in any certificate or other document furnished pursuant thereto shall
prove to have been inaccurate in any material respect at the time made or shall
be breached in any material respect; or
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(e) REPRESENTATIONS AND WARRANTIES OF GUARANTOR. any
representation or warranty made by the Guarantor in any of the Operative
Documents to which it is a party or in any certificate or other document
furnished pursuant thereto shall prove to have been inaccurate in any material
respect at the time made or shall be breached in any material respect; or
(f) CROSS-DEFAULT. the Lessee, the Guarantor or any Subsidiary
of the Guarantor (other than any Foreign Subsidiary Borrower) shall default in
the payment when due of any principal of or interest on any Indebtedness having
an aggregate outstanding principal amount of at least $5,000,000; or any event
or condition shall occur which results in the acceleration of the maturity of
any such Indebtedness of the Lessee, the Guarantor or any Subsidiary of the
Guarantor (other than any Foreign Subsidiary Borrower) or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of any such
Indebtedness or any Person acting on such holder's behalf to accelerate the
maturity thereof; or
(g) VOLUNTARY PROCEEDINGS. the Lessee or the Guarantor shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(h) INVOLUNTARY PROCEEDINGS. an involuntary case or other
proceeding shall be commenced against the Lessee or the Guarantor seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of sixty (60) days; or an order for relief shall be entered against the
Lessee or the Guarantor under the federal bankruptcy laws as now or hereafter in
effect; or
(i) JUDGMENTS. (i) one or more judgments, orders, decrees or
arbitration awards requiring Lessee or Guarantor to pay an aggregate amount of
$5,000,000 or more (exclusive of amounts covered by insurance issued by an
insurer not an Affiliate of the Guarantor) shall be rendered against Lessee or
Guarantor in connection with any single or related series of transactions,
incidents or circumstances and the same shall not be satisfied, vacated or
stayed for a period of sixty (60) consecutive days; or (ii) any judgment, writ,
assessment, warrant of attachment, tax lien or execution or similar process
shall be issued or levied against a substantial part of the property of the
Lessee or Guarantor and the same shall not be released, stayed, vacated, or
otherwise dismissed within sixty (60) days after issue or levy; or
(j) CONSTRUCTION AGENCY AGREEMENT; GUARANTY. a Construction
Agency Agreement Event of Default shall occur, or an Event of Default (as
defined therein) shall occur under the Guaranty; or
(k) REPUDIATION; INVALIDITY. the Lessee or the Guarantor shall
directly or indirectly contest the validity of any Operative Document in any
manner in any court of competent jurisdiction or any lien granted by any
Operative Document, or shall repudiate, or purport to discontinue or terminate,
any Operative Document to which either of them is a party or any such Operative
Document shall cease to be a legal, valid and binding obligation of the Lessee
or the Guarantor or shall cease to be in full force and effect against the
Lessee or the Guarantor for any reason other than as a result of the expiration
of
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such Operative Document in accordance with its terms (and in the event such
Operative Document shall so cease to be a legal, valid and binding obligation of
the Lessee or the Guarantor or cease to be in full force and effect against the
Lessee or the Guarantor, the Lessee or Guarantor, as the case may be, shall not
have taken all such actions necessary or desirable (in the reasonable opinion of
the Lessor and the Administrative Agent and its counsel) to put the Lessor, the
Administrative Agent, the Collateral Agent, the Equity Participants and the
Lenders in the same position they would have enjoyed had such Operative Document
not ceased to be a legal, valid and binding obligation of the Lessee or the
Guarantor or ceased to be in full force and effect); or
(l) OWNERSHIP OF LESSEE. the Guarantor shall cease to own,
directly or indirectly, all of the issued and outstanding capital stock of the
Lessee; or
(m) VOLUNTARY CHANGE OF CONTROL. an event described in CLAUSES
(a) through (c) of the definition of Change of Control in the Iron Mountain
Credit Agreement (as in effect on the date hereof without regard to any
subsequent amendment, modification, waiver, supplement or termination of such
credit agreement) shall occur and, in the case of any event described in CLAUSES
(a) or (c) of such definition, the Guarantor or its Board of Directors shall
have caused, consented to or failed to exercise rights available to it to
prevent, such event.
20.2 REMEDIES.
(a) Upon the occurrence of any Event of Default and at any time
thereafter, the Lessor may, so long as such Event of Default is continuing, with
respect to each Leased Asset (other than any Construction Property for which the
Lease Term has not commenced) do one or more of the following as the Lessor in
its sole discretion shall determine, without limiting any other right or remedy
the Lessor may have on account of such Event of Default (including the
obligation of the Lessee to purchase the Leased Assets as set forth in SECTION
22.2):
(i) The Lessor may, by notice to the Lessee terminate this
Lease as of the date specified in such notice; PROVIDED, HOWEVER, (A)
no reletting, reentry or taking of possession of any Leased Asset or
all of the Leased Assets (or any portion thereof) by the Lessor will be
construed as an election on the Lessor's part to terminate this Lease
unless a written notice of such intention is given to the Lessee, (B)
notwithstanding any reletting, reentry or taking of possession, the
Lessor may at any time thereafter elect to terminate this Lease for a
continuing Event of Default and (C) no act or thing done by the Lessor
or any of its agents, representatives or employees and no agreement
accepting a surrender of any Leased Asset shall be valid unless the
same be made in writing and executed by the Lessor;
(ii) The Lessor may (A) demand that the Lessee, and the
Lessee shall upon the written demand of the Lessor, return any Leased
Asset promptly to the Lessor in the manner and condition required by
SECTION 13.1 as if the Leased Asset were being returned at the end of
the Lease Term, and the Lessor shall not be liable for the
reimbursement of the Lessee for any costs and expenses incurred by the
Lessee in connection therewith and (B) without prejudice to any other
remedy which the Lessor may have for possession of any Leased Asset,
and to the extent and in the manner permitted by Applicable Law, enter
upon such Leased Asset and take immediate possession of (to the
exclusion of the Lessee) such Leased Asset or any part thereof and
expel or remove the Lessee and any other Person who may be occupying
such Leased Asset, by summary proceedings or otherwise, all without
liability to the Lessee for or by reason of such entry or taking of
possession, whether for the restoration of damage to property caused by
such taking or otherwise and, in addition to the Lessor's other
damages, the Lessee shall be responsible for all costs and expenses
incurred by the Lessor in connection with any reletting, including,
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without limitation, reasonable brokers' fees and all reasonable costs
of any alterations or repairs made by the Lessor;
(iii) The Lessor may (A) sell all or any part of one or
more Leased Assets at public or private sale, free and clear of any
rights of the Lessee, and without any duty to account to the Lessee
with respect to such action or any proceeds in which event the Lessee's
obligation to pay Base Rent hereunder for periods commencing after the
date of such sale shall be terminated or proportionately reduced, as
the case may be, and (B) if the Lessor shall so elect, demand that the
Lessee pay to the Lessor, and the Lessee shall pay to the Lessor, on
the date of such sale, as liquidated damages for loss of a bargain and
not as a penalty (the parties agreeing that the Lessor's actual damages
would be difficult to predict, but the aforementioned liquidated
damages represent a reasonable approximation of such amount), an amount
equal to (1) the excess, if any, of (x) the Lease Balance calculated as
of the date of such sale (including all Rent due and unpaid to and
including such date), over (y) the net proceeds of such sale (that is,
after deducting all costs and expenses incurred by the Lessor incident
to such conveyance, including repossession costs, brokerage
commissions, prorations, transfer taxes, reasonable fees and expenses
for counsel, title insurance fees, survey costs, recording fees, and
any repair costs); plus (2) interest at the Overdue Rate on the
foregoing amount from such date until the date of payment;
(iv) The Lessor may, at its option, elect not to terminate
this Lease and continue to collect all Base Rent, Supplemental Rent,
and all other amounts due the Lessor (together with all costs of
collection) and enforce the Lessee's obligations under this Lease as
and when the same become due, or are to be performed, and at the option
of the Lessor, upon any abandonment of any Leased Asset by the Lessee
or re-entry of same by the Lessor, the Lessor may, in its sole and
absolute discretion, elect not to terminate this Lease and may make the
necessary repairs in order to relet any Leased Asset, and relet any
Leased Asset or any part thereof for such term or terms (which may be
for a term extending beyond the Lease Term of this Lease) and at such
rental or rentals and upon such other terms and conditions as the
Lessor in its reasonable discretion may deem advisable; and upon each
such reletting all rentals actually received by the Lessor from such
reletting shall be applied to the Lessee's obligations hereunder and
the other Operative Documents in such order, proportion and priority as
the Lessor may elect in the Lessor's sole and absolute discretion. If
such rentals received from such reletting during any period are less
than the Rent with respect to such Leased Asset to be paid during that
period by the Lessee hereunder, the Lessee shall pay any deficiency, as
calculated by the Lessor, to the Lessor on the next Payment Date;
(v) Unless all of the Leased Assets have been sold in
their entirety, the Lessor may, whether or not the Lessor shall have
exercised or shall thereafter at any time exercise any of its rights
under paragraph (ii), (iii) or (iv) of this SECTION 20.2 with respect
to the Leased Assets or portions thereof, demand, by written notice to
the Lessee specifying a date not earlier than ten (10) days after the
date of such notice, that the Lessee purchase, on such date, all unsold
Leased Assets (or the remaining portion thereof) in accordance with the
provisions of ARTICLE XXII; PROVIDED, HOWEVER, that no such written
notice shall be required upon the occurrence of any Event of Default in
clause (g) or (h) of SECTION 20.1; and
(vi) The Lessor may exercise any other right or remedy
that may be available to it under Applicable Law, or proceed by
appropriate court action (legal or equitable) to enforce the terms
hereof or to recover damages for the breach hereof. Separate suits may
be brought to collect any such damages for any period(s), and such
suits shall not in any manner prejudice the Lessor's right to collect
any such damages for any subsequent period(s), or the Lessor may defer
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any such right to suit until after the expiration of the lease Term,
in which event such right to suit shall be deemed not to have accrued
until the expiration of the Lease Term.
(b) To the maximum extent permitted by Applicable Law, the
Lessee hereby waives the benefit of any appraisement, valuation, stay,
extension, reinstatement and redemption laws now or hereafter in force and all
rights of marshalling in the event of any sale of any Leased Asset or any
interest therein.
(c) The Lessor shall be entitled to enforce payment of the
indebtedness and performance of the obligations secured hereby and to exercise
all rights and powers under this instrument or under any of the other Operative
Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the obligations secured hereby may now or
hereafter be otherwise secured, whether by mortgage, security agreement, pledge,
lien, assignment or otherwise. Neither the acceptance of this instrument nor its
enforcement shall prejudice or in any manner affect the Lessor's right to
realize upon or enforce any other security now or hereafter held by the Lessor,
it being agreed that the Lessor shall be entitled to enforce this instrument and
any other security now or hereafter held by the Lessor in such order and manner
as the Lessor may determine in its absolute discretion. No remedy herein
conferred upon or reserved to the Lessor is intended to be exclusive of any
other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. Every power or remedy
given by any of the Operative Documents to the Lessor or to which it may
otherwise be entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by the Lessor. In no event
shall the Lessor, in the exercise of the remedies provided in this instrument
(including, without limitation, in connection with the assignment of rents to
Lessor, or the appointment of a receiver and the entry of such receiver on to
all or any part of the Leased Assets), be deemed a "mortgagee in possession,"
and the Lessor shall not in any way be made liable for any act, either of
commission or omission, in connection with the exercise of such remedies.
(d) An action of mortgage foreclosure as now provided or
hereafter prescribed by law, may forthwith be commenced and prosecuted to
judgment, execution and sale, for the collection of the whole amount of such
Lease Balance, together with all fees, costs and expenses of such proceedings,
including a reasonable attorney's fees. And all errors in such proceedings,
together with any stays of or exemptions from execution, or extensions of time
of payment, which may be given by any Applicable Law now in force, or which may
be enacted hereafter, are hereby forever waived and released.
(e) If, pursuant to the exercise by the Lessor of its remedies
pursuant to this SECTION 20.2, the Lease Balance for all Leased Assets plus all
other amounts due and owing from the Lessee under this Lease and the other
Operative Documents shall have been paid in full, the Lessor shall remit to the
Lessee any excess amounts received by the Lessor.
20.3 WAIVER OF CERTAIN RIGHTS. If this Lease shall be terminated
pursuant to SECTION 20.2, the Lessee waives, to the fullest extent permitted by
law, (a) any notice of re-entry or the institution of legal proceedings to
obtain re-entry or possession; (b) any right of redemption, re-entry or
repossession; (c) the benefit of any laws now or hereafter in force exempting
property from liability for rent or for debt or limiting the Lessor with respect
to the election of remedies; and (d) any other rights which might otherwise
limit or modify any of the Lessor's rights or remedies under this ARTICLE XX.
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ARTICLE XXI
ASSIGNMENT
21.1 ASSIGNMENT BY LESSOR. The Lessor may not assign, sell or
transfer all or any part of its rights and obligations hereunder or under the
Operative Documents or the Leased Assets; PROVIDED, that the Lessor may assign,
sell or transfer all or any portion of such rights hereunder or under the other
Operative Documents or any Leased Asset (i) as specifically provided in the
Operative Documents or (ii) in connection with the exercise of any of its rights
or remedies thereunder.
21.2 ASSIGNMENT BY LESSEE. The Lessee may not assign this Lease or
any of its rights or obligations hereunder in whole or in part to any Person
without the consent of the Lessor; PROVIDED, HOWEVER, that (i) the Lessee may
assign all (and not less than all) of its rights hereunder without such consent
to one or more of its Affiliates so long as the Lessee remains fully liable for
all of the obligations of the "Lessee" hereunder and under the other Operative
Documents and the Guarantor confirms that its obligations under the Guaranty
shall not be affected thereby and (ii) the Lessee may assign the Purchase Option
or the Remarketing Option so long as the Lessee remains fully liable for all of
the obligations of the "Lessee" under ARTICLES XXII and XXV or XXIV and XXV,
respectively and PROVIDED, FURTHER, that the exercise of the Purchase Option and
the Remarketing Option remains subject to the satisfaction of the conditions
applicable thereto.
ARTICLE XXII
PURCHASE PROVISIONS
22.1 PURCHASE OPTION. Provided that the Lessee shall not have given
notice of its intention to exercise the Remarketing Option, the Lessee shall
have the option (exercisable by giving the Lessor irrevocable written notice
(the "PURCHASE NOTICE") of the Lessee's election to exercise such option) to
purchase all of the Leased Assets on any Scheduled Payment Date specified in
such Purchase Notice at a price equal to the Lease Balance for such Leased
Assets (the "PURCHASE OPTION PRICE"). The Lessee shall deliver the Purchase
Notice to the Lessor not less than thirty (30) days prior to such purchase. If
the Lessee exercises its option to purchase the Leased Assets pursuant to this
SECTION 22.1 (the "PURCHASE OPTION"), the Lessor shall transfer to the Lessee or
its designee all of the Lessor's right, title and interest in and to the Leased
Assets as of the date specified in the Purchase Notice upon receipt of the
Purchase Option Price in accordance with SECTION 25.1. The Lessee may designate,
in a notice given to the Lessor not less than ten (10) Business Days prior to
the closing of such purchase (time being of the essence), the transferee or
transferees to whom the conveyance shall be made (if other than to the Lessee),
in which case such conveyance shall (subject to the terms and conditions set
forth herein) be made to such designee; PROVIDED, HOWEVER, that such designation
of a transferee or transferees shall not cause the Lessee to be released, fully
or partially, from any of its obligations under this Lease, including, without
limitation, the obligation to pay the Lessor the Purchase Option Price on the
Expiration Date.
22.2 ACCELERATION OF PURCHASE OBLIGATION.
(a) The Lessee shall be obligated to purchase for an amount
equal to the Lease Balance the Lessor's interest in the Leased Assets at any
time during the Lease Term (notwithstanding any prior election to exercise its
Purchase Option pursuant to SECTION 22.1) (i) automatically and without notice
upon the occurrence of any Event of Default specified in clause (g) or (h) of
SECTION 20.1 with respect to the Lessee and (ii) as provided for in SECTION
20.2(a)(v) immediately upon written demand of the Lessor upon the occurrence of
any other Event of Default.
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(b) The Lessee shall be obligated to purchase the Lessor's
interest in any Leased Assets for an amount equal to the Lease Balance
immediately upon written demand of the Lessor at any time during the Lease Term
when (i) the Lessor ceases to have title to such Leased Assets as contemplated
by SECTION 15.1 or (ii) any related Security Document (other than this Lease) to
which the Lessee is a party shall cease to give the Lessor the Liens, rights,
powers and privileges purported to be created thereby.
(c) Any purchase under SECTION 22.1 or this SECTION 22.2 shall
be in accordance with SECTION 25.1.
22.3 PURCHASE OF UNIMPROVED LAND. Provided that no Default or Event
of Default has occurred and is continuing, the Lessee shall have the option
(exercisable by giving the Lessor irrevocable written notice of the Lessee's
exercise of such option) to purchase any unimproved portion of any Land (and any
related easements for utilities and access to be specified at such time) not
necessary or desirable for operations of the Improvements constructed or to be
constructed on such Land on any Scheduled Payment Date specified in such notice
at a price equal to the Fair Market Sales Value, as determined by an Appraisal,
of such unimproved portion and such easements. The Lessee shall give such notice
to the Lessor not less than thirty (30) days prior to such purchase. If the
Lessee exercises its option pursuant to this SECTION 22.3, the Lessor shall
transfer to the Lessee or its designee all of the Lessor's right, title and
interest in and to the applicable unimproved portion of Land and grant the
related easements as of the date specified in the Lessee's notice under
procedures analogous to those set forth in SECTION 25.1. The purchase price paid
by the Lessee shall be applied to reduce the Lease Balance for the related
Property.
ARTICLE XXIII
RENEWAL TERMS
23.1 RENEWAL. The Lease Term for any Leased Asset may be renewed at
the end of such Lease Term upon the mutual agreement of the Lessor and Lessee;
PROVIDED that neither party has any obligation to agree to any renewal requested
by the other party. Any renewal of the Lease Term shall be for such period as
shall be agreed to by the Lessor and Lessee and shall be accompanied by such
amendments to the Operative Documents as may be appropriate in connection
therewith.
ARTICLE XXIV
REMARKETING OPTION
24.1 OPTION TO REMARKET. Subject to the fulfillment of each of the
conditions set forth in this SECTION 24.1, the Lessee shall have the option (the
"REMARKETING OPTION") to market and complete the sale of Lessor's interest in
all of the Leased Assets on the Expiration Date. The Lessee's effective exercise
and consummation of the Remarketing Option shall be subject to the due and
timely fulfillment of each of the following provisions as of the dates set forth
below.
(a) Not later than six (6) months prior to the Expiration Date,
the Lessee shall give to the Lessor written notice of the Lessee's exercise of
the Remarketing Option, which exercise shall be irrevocable. On the date of the
Lessee's notice to the Lessor of the Lessee's exercise of the Remarketing
Option, no Event of Default shall exist and, in the case of each Construction
Property, the Improvements on such Property shall have been constructed in
accordance with the Plans and Specifications and shall have achieved Substantial
Completion.
(b) Not more than one hundred eighty (180) and not less than
ninety (90) days prior to the Expiration Date, the Lessee shall deliver to the
Lessor an Environmental Audit for each Property.
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Such Environmental Audit shall be prepared by an environmental consultant
selected by the Lessee and approved in advance by the Lessor and shall contain
conclusions reasonably satisfactory to the Lessor as to the environmental status
of such Property. If any such Environmental Audit indicates any exceptions, the
Lessee shall have also delivered a Phase Two environmental assessment by such
environmental consultant prior to the Expiration Date showing the completion of
the remediation of such exceptions in compliance with all Requirements of Law.
(c) On the Expiration Date, no Event of Default or Default shall
exist and none of the Leased Assets shall be subject to a Permitted Contest.
(d) On the Expiration Date, the Lessee shall have completed in
all material respects all Modifications, restoration and rebuilding of the
Leased Assets pursuant to SECTION 14.1 and 18.1 (as the case may be) and shall
have fulfilled in all material respects all of the conditions and requirements
in connection therewith pursuant to said Sections, regardless of whether the
same shall be within the Lessee's control. The Lessee shall have also paid the
cost of all Modifications commenced prior to the Expiration Date. The Lessee
shall not have been excused pursuant to SECTION 16.1 from complying with any
Requirements of Law that involved the extension of the ultimate imposition of
such Requirements of Law beyond the Expiration Date.
(e) During the Marketing Period, the Lessee shall use best
efforts to sell the Lessor's interest in the Leased Assets and will attempt to
obtain the highest purchase price therefor and for not less than the Fair Market
Sales Value of the Leased Assets. The Lessee will be responsible for hiring
brokers and making the Leased Assets available for inspection by prospective
purchasers. The Lessee shall promptly upon request permit inspection of the
Leased Assets and any maintenance records relating to the Leased Assets by any
potential purchasers, and shall otherwise do all things necessary to sell and
deliver possession of the Leased Assets to any purchaser. All such marketing of
the Leased Assets shall be at the Lessee's sole expense. The Lessee's agency
under this clause shall, for the first three (3) months of the Marketing Period,
be on an exclusive basis. In the event the Lessee is unable to procure during
such period a bona fide bid from a non-Affiliated Person with demonstrable
financial capacity to consummate such bid for any Leased Asset, from and after
such third month, the agency hereunder shall be on a non-exclusive basis.
(f) The Lessee shall submit all offers to purchase the Leased
Assets to the Lessor and the Lessor will have the right to review the same and
the right to submit one or more of its own offers. All offers shall be on an
all-cash basis unless the Lessor shall otherwise agree in its sole discretion.
No purchaser shall be the Lessee or an Affiliate of the Lessee. Each offer must
specify the Expiration Date as the closing date unless the Lessor shall
otherwise agree in its sole discretion.
(g) In connection with any such sale of Lessor's interest in any
Leased Assets, the Lessee will provide to the purchaser all customary "seller's"
indemnities, representations and warranties regarding absence of Liens (except
Lessor Liens) and the condition of such Leased Assets, including, without
limitation, an environmental indemnity for any Property, to the extent the same
are required by the purchaser. The Lessee shall have obtained, at its cost and
expense, all required governmental and regulatory consents and approvals and
shall have made all filings as required by all Requirements of Law in order to
carry out and complete the transfer of the Leased Assets. As to the Lessor, any
such sale of Lessor's interest in any Leased Assets shall be made on an "as is,
with all faults" basis without representation or warranty by the Lessor other
than the absence of Lessor Liens. Any agreement as to such sale shall be made
subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and not from the sale
proceeds, all prorations, credits, costs and expenses of the sale of Lessor's
interest in the Leased Assets, whether incurred by the Lessor or
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the Lessee, including the cost of all title insurance, surveys, environmental
reports, appraisals, transfer taxes, the Lessor's reasonable attorneys' fees,
the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all
applicable documentary and other transfer taxes.
(i) The Lessee shall pay to the Lessor on or prior to the
Expiration Date (or to such other Person as the Lessor shall notify the Lessee
in writing) an amount equal to the Guaranteed Residual Value for each Leased
Asset, PLUS all Base Rent and all other amounts hereunder which have accrued or
will accrue with respect thereto prior to or as of the Expiration Date PLUS the
amount, if any, by which the Fair Market Sales Value of such Leased Asset has
been reduced by excess wear and tear of any Leased Asset.
(j) (i) If the Lessee complies with all of the conditions and
all of its obligations under CLAUSES (a) through (i) above and arranges for the
sale of the Leased Assets, then the purchase of Lessor's interest in the Leased
Assets shall be consummated on the Expiration Date and the Gross Proceeds of the
sale of the Leased Assets shall be paid directly to the Lessor. If the Gross
Proceeds plus the aggregate Guaranteed Residual Value received by Lessor,
exceeds the aggregate Lease Balance for the Leased Assets as of such date, then
the excess shall be paid to the Lessee on the Expiration Date.
(ii) If the Lessee complies with all of the conditions and
all of its obligations under CLAUSES (a) through (i) above but does not
arrange for the sale of the Leased Assets, then the Lessee shall
surrender the Leased Assets to the Lessor on the Expiration Date as
required by SECTIONS 13.2 and 25.2.
(iii) If the Lessee does not comply with any of the
conditions or any of its obligations under CLAUSES (a) through (i)
above with respect to the Leased Assets, then the Lessor shall declare
by written notice to the Lessee the Remarketing Option with respect to
the Leased Assets to be null and void (whether or not it has been
theretofore exercised by the Lessee), in which event all of the
Lessee's rights under this SECTION 24.1 shall immediately terminate and
the Lessee shall be obligated to purchase Lessor's interest in the
Leased Assets as if it had exercised its option under SECTION 22.1 on
the Expiration Date.
(k) Except as expressly set forth herein, the Lessee shall have
no right, power or authority to bind the Lessor in connection with any proposed
sale of Lessor's interest in any Leased Asset. The Lessor shall have the right,
but shall be under no duty, to solicit offers, to inquire into the efforts of
the Lessee to obtain offers or otherwise to take action in connection with any
such sale of Lessor's interest in the Leased Assets, other than as expressly
provided in this ARTICLE XXIV.
(l) In the event that the sale of all of the Leased Assets is
not consummated on the Expiration Date, but such sale is consummated any time
thereafter, the Lessor shall remit to the Lessee, promptly after the
consummation of the sale of the Leased Assets, any excess remaining after
deducting (i) the then outstanding Lease Balance of the Leased Assets plus (ii)
the Imputed Carrying Cost thereof accruing from and after the Expiration Date
(provided that such Imputed Carrying Cost shall not exceed the aggregate
Guaranteed Residual Value for all of the Leased Assets) plus (iii) all costs and
expenses of such sale from the Gross Proceeds.
24.2 CERTAIN OBLIGATIONS CONTINUE. During the Marketing Period, the
obligation of the Lessee to pay Rent shall continue undiminished until payment
in full to the Lessor of the Guaranteed Residual Value and all other amounts due
to the Lessor with respect to the Leased Assets under the Operative Documents to
which the Lessee is a party.
24.3 INVOLUNTARY CHANGE OF CONTROL.
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(a) If an Involuntary Change of Control shall occur, then,
notwithstanding anything to the contrary in this Lease or any of the other
Operative Documents, the Lessee shall be deemed to have exercised the
Remarketing Option and the provisions of SECTION 24.1(b) through (l) shall be
applicable to all of the Leased Assets for which the Lease Term has commenced,
except that such provisions shall in such case be modified as follows:
(i) The date which is three (3) months after the
Involuntary Change of Control Date shall be deemed to be the Expiration
Date, and the Marketing Period shall consist of such three (3) month
period;
(ii) the Environmental Audits to be delivered pursuant to
CLAUSE (b) of SECTION 24.1 shall be delivered not later than thirty
(30) days before the end of such Marketing Period;
(iii) the Lessee's agency under CLAUSE (e) of SECTION 24.1
shall be exclusive for the first two (2) months of such Marketing
Period; and
(iv) the Lessee shall pay the Guaranteed Residual Value
for all of such Leased Assets to the Lessor on the Involuntary Change
of Control Date.
(b) If any Construction Property achieves Substantial Completion
after an Involuntary Change of Control Date and on or before the end of the
Marketing Period referred to in SECTION 24.3(a), then, notwithstanding anything
to the contrary in this Lease or any of the other Operative Documents, such
Property shall be subject to the provisions of SECTION 24.3(a), except that such
provisions shall be modified for such Property as follows:
(i) the Environmental Audit to be delivered pursuant to
CLAUSE (b) of SECTION 24.1 shall be delivered no later than the last to
occur of (A) the date thirty (30) days before the end of the Marketing
Period and (B) the date of Substantial Completion; and
(ii) the Lessee shall pay the Guaranteed Residual Value
for such Property to the Lessee on the date of Substantial Completion.
(c) If any Construction Property achieves Substantial Completion
after the Involuntary Change of Control Date and after the end of the Marketing
Period referred to in SECTION 24.3(a), then, notwithstanding anything to the
contrary in this Lease or any of the other Operative Documents, such Property
shall be subject to the provisions of SECTION 24.3(a), except that such
provisions shall be modified for such Property as follows:
(i) the date of Substantial Completion shall be deemed to
be the Expiration Date for such Property, and the Marketing Period for
such Property shall consist of the three (3) month period ending on
such date;
(ii) the Environmental Audit to be delivered pursuant to
CLAUSE (b) of SECTION 24.1 shall be delivered no later than the date of
Substantial Completion; and
(iii) the Lessee shall pay the Guaranteed Residual Value
for such Property to the Lessee on the date of Substantial Completion.
(d) Except as expressly provided herein, all of the provisions
of SECTIONS 24.1 and 24.2 shall apply to the Lessee's deemed exercise of the
Remarketing Option, including the Lessee's obligation
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to pay amounts other than Guaranteed Residual Value pursuant to SECTION 24.1(i)
and the Lessee's obligation to purchase the Leased Assets pursuant to SECTION
24.1(j)(3) if it does not satisfy the remarketing conditions as modified by this
SECTION 24.3. Notwithstanding that the Lessee may have been deemed to have
exercised the Remarketing Option pursuant to this Section, it shall retain the
right to exercise the Purchase Option at any time on or before the Expiration
Date designated pursuant to SECTION 24.3(a).
ARTICLE XXV
PROCEDURES RELATING TO PURCHASE OR REMARKETING
25.1 CONVEYANCE UPON PURCHASE BY THE LESSEE. In connection with the
Lessee's purchase of the Leased Assets pursuant to SECTION 22.1 or 22.2, or in
connection with a purchase of Lessor's interest in any Leased Asset under
ARTICLE XIX or under the Construction Agency Agreement:
(i) the Lessee shall pay the amounts set forth in SECTION 22.1,
SECTION 22.2, ARTICLE XIX or the Construction Agency Agreement, as
applicable, together with all accrued Rent relating to such Leased
Assets and any other amount then due and payable by the Lessee to the
Lessor under this Lease or the other Operative Documents (including any
Transaction Expenses relating to such purchase);
(ii) the Lessor shall execute and deliver to the Lessee (or to
the Lessee's designee) at the Lessee's cost and expense a special
warranty deed with respect to the Improvements, a special warranty deed
or release of Ground Lease with respect to the Land, a bill of sale
with respect to any Equipment and an assignment of the Lessor's entire
interest in the Leased Assets being sold (which shall include, if
applicable, an assignment of all of the Lessor's right, title and
interest in and to any Gross Proceeds not previously received by the
Lessor) and, if applicable, a termination notice pursuant to the Ground
Lease, in each case in recordable form and otherwise in conformity with
local custom and free and clear of the Lien of the Mortgage and any
Lessor Liens attributable to the Lessor;
(iii) the Leased Assets being sold shall be conveyed to the
Lessee (or to the Lessee's designee) "AS IS" and in their then present
physical condition; and
(iv) the Lessor shall execute and deliver to Lessee and the
Title Company an affidavit as to the absence of Lessor Liens.
25.2 CONVEYANCE UPON REMARKETING. If the Lessee properly exercises the
Remarketing Option, then the Lessee shall, on the Expiration Date, and at its
own cost, transfer possession of the Leased Assets to independent purchaser(s)
thereof or the Lessor, as the case may be, in each case by surrendering the same
into the possession of the Lessor or such purchaser(s), as the case may be, free
and clear of all Liens other than Lessor Liens, in good condition (as modified
by Modifications permitted by this Lease), ordinary wear and tear excepted, and
in compliance with all Requirements of Law. The Lessee shall, during the
Marketing Period and up to one year after the Expiration Date, cooperate
reasonably with the Lessor and the independent purchaser(s) of Lessor's interest
in such Leased Assets in order to facilitate the purchase by such purchaser(s)
of Lessor's interest in such Leased Assets, which cooperation shall include the
following, all of which the Lessee shall do on or prior to the Expiration Date
or as soon thereafter as is reasonably practicable: providing copies of all
books and records regarding the maintenance and ownership of the Leased Assets
and all data and technical and all other information relating thereto, granting
or assigning on or after the Expiration Date all licenses (to the extent such
licenses are assignable under Applicable Law) necessary for the operation and
maintenance of the Leased
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Assets and cooperating reasonably in seeking and obtaining all necessary
Governmental Action. The obligations of the Lessee under this paragraph shall
survive the expiration or termination of this Lease.
ARTICLE XXVI
EXCHANGES OF LEASED ASSETS
26.1 EXCHANGES OF LEASED ASSETS. The Lessee shall have the right, on
any Monthly Date occurring or prior to the Base Date, to terminate this Lease
with respect to (i) any Leased Asset for which the Lease Term has commenced or
(ii) any Construction Property acquired pursuant to SECTION 4.2(D) for which no
Funding other than the initial Funding has been made (a "REMOVED PROPERTY");
PROVIDED that the Lessee simultaneously identifies to the Lessor a replacement
Property that the Lessor may acquire and lease hereunder in exchange for such
Removed Property (a "SUBSTITUTED PROPERTY"); PROVIDED, FURTHER, that on the
proposed exchange date (a) the conditions in SECTION 26.3 must be satisfied with
respect to the proposed exchange and (b) after giving effect to such exchange,
the aggregate Lease Balance of all Removed Properties theretofor or then being
removed is less than or equal to $20,000,000.
26.2 EXCHANGE PROCEDURE. The Lessee shall deliver a notice of
exchange to the Lessor at least thirty (30) days prior to the proposed Monthly
Date for the exchange, which notice must identify the Removed Property and
describe in reasonable detail the Substituted Property. If the conditions to
such exchange have been satisfied on or prior to the proposed Monthly Date for
such exchange (the "EXCHANGE DATE"), the exchange shall occur on such Exchange
Date.
26.3 CONDITIONS TO EACH EXCHANGE. The occurrence of an exchange on
any Exchange Date is subject to satisfaction or waiver of the following
conditions precedent:
(a) TYPE OF PROPERTY. The Substituted Property (i) must meet the
requirements of SECTIONS 2.1(c)(i) and (c)(iii) and (ii) may consist of a
Construction Property only if the Removed Property is a Construction Property of
the type referred to in clause (ii) of SECTION 26.1.
(b) OTHER LEASE CONDITIONS. On or prior to the relevant Exchange
Date, the Lessee must satisfy each of the conditions precedent in SECTION 4.2
with respect to the relevant Substituted Property, as if such Substituted
Property was a Leased Property and such Exchange Date was an Acquisition Date.
(c) NO EVENT OF DEFAULT. On the relevant Exchange Date, no Event
of Default shall have occurred and be continuing or would result from such
exchange.
(d) VALUE OF SUBSTITUTED PROPERTY. On the relevant Exchange Date
(i) unless the Substituted Property is a Construction Property, the Fair Market
Sales Value for the relevant Substituted Property (as shown in the Appraisal for
such Substituted Property delivered pursuant to SECTION 26.3(b)) shall be equal
to or greater than the Fair Market Sales Value for the relevant Removed Property
on such date and (ii) if the Substituted Property is a Construction Property,
the Fair Market Sales Value of the Land component thereof shall be equal to or
greater than the Lease Balance for the relevant Removed Property on such date.
26.4 EFFECT OF EXCHANGE. Subject to the satisfaction of the
conditions precedent in SECTION 26.3, on an Exchange Date (a) this Lease shall
terminate with respect to the relevant Removed Property, (b) the Lessor shall
convey title to such Removed Property to the Lessee or its designee in
accordance with clauses (ii) through (iv) of SECTION 25.1, (c) the relevant
Substituted Property shall be deemed to be a "Leased Asset" for the purposes of
this Lease and the other Operative Documents with a Lease Balance equal to the
Fair Market Sales Value for the relevant Substituted Property (or the Land
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component thereof, in the case of a Construction Property) and (d) if the Fair
Market Sales Value for the relevant Substituted Property (or the Land component
thereof, in the case of a Construction Property) is greater than the Lease
Balance of the Removed Property on the Exchange Date, then the Lessor will make
a Funding in an amount equal to the amount of such excess.
26.5 LIKE-KIND EXCHANGES. The Lessee may request the Lessor to
structure any exchange herein contemplated as the receipt of replacement
property pursuant to a like-kind exchange under the provisions of Section 1031
of the Code. The Lessor agrees to cooperate with the Lessee to structure such
exchange in such manner, including the execution (at the expense of the Lessee)
of any documents and instruments reasonably requested by the Lessee.
ARTICLE XXVII
INDEMNIFICATION
27.1 GENERAL INDEMNIFICATION. The Lessee agrees, whether or not any
of the transactions contemplated hereby shall be consummated, to indemnify,
protect, defend, save and hold harmless each Indemnitee, on an After Tax Basis,
from and against, any and all Claims that may be imposed on, incurred by or
asserted against such Indemnitee (whether because of action or omission by such
Indemnitee or otherwise), whether or not such Indemnitee shall also be
indemnified as to any such Claim by any other Person and whether or not such
Claim arises or accrues prior to the Closing Date or after the Expiration Date,
in any way relating to or arising out of:
(a) any of the Operative Documents or any of the transactions
contemplated thereby;
(b) the Leased Assets or any part thereof or interest therein;
(c) the purchase, design, construction, preparation,
installation, inspection, delivery, non-delivery, acceptance, rejection,
ownership, management, possession, operation, rental, lease, sublease,
repossession, maintenance, repair, alteration, modification, addition or
substitution, storage, transfer of title, redelivery, use, financing,
refinancing, disposition, operation, condition, sale (including, without
limitation, any sale pursuant to any provision hereof), return or other
disposition of all or any part or any interest in any Leased Asset or the
imposition of any Lien (or incurring of any liability to refund or pay over any
amount as a result of any Lien) thereon, including, without limitation: (1)
Claims or penalties arising from any violation of law or in tort (strict
liability or otherwise), (2) latent or other defects, whether or not
discoverable, (3) any Claim based upon a violation or alleged violation of the
terms of any restriction, easement, condition or covenant or other matter
affecting title to any Leased Asset, (4) the making of any Modifications in
violation of any standards imposed by any insurance policies required to be
maintained by the Lessee pursuant to this Lease which are in effect at any time
with respect to any Leased Asset or any part thereof, (5) any Claim for patent,
trademark or copyright infringement, (6) Claims which would otherwise be covered
by insurance policies of the Lessee, as required by ARTICLE XVII, and (7) Claims
arising from any public improvements with respect to any Property resulting in
any charge or special assessments being levied against the Property or any plans
to widen, modify or realign any street or highway adjacent to any Property, or
any Claim for utility "tap-in" fees;
(d) the breach by the Lessee or the Guarantor of any covenant,
representation or warranty made by it or deemed made by it in any Operative
Document or in any certificate delivered pursuant to any Operative Document;
(e) the retaining or employment of any broker, finder or
financial advisor by the Lessee or any of its Affiliates to act on its behalf in
connection with the transactions contemplated hereby; or
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(f) the existence of any Lien on or with respect to any Leased
Asset, any Base Rent or Supplemental Rent, or any interest therein including any
Liens which arise out of the possession, use, occupancy, construction, repair or
rebuilding of any Leased Asset or by reason of labor or materials furnished or
claimed to have been furnished to the Lessee, or any of its contractors or
agents or by reason of the financing of any personalty or equipment purchased or
leased by the Lessee or Modifications constructed by the Lessee, except Lessor
Liens and Liens in favor of the Lessor;
PROVIDED, HOWEVER, the Lessee shall not be required to indemnify any Indemnitee
under this SECTION 27.1 for any of the following: (1) any Claim to the extent
resulting from the willful misconduct or gross negligence of such Indemnitee (it
being understood that the Lessee shall be required to indemnify an Indemnitee
even if the ordinary (but not gross) negligence of such Indemnitee caused or
contributed to such Claim) or the breach of any representation, warranty or
covenant of such Indemnitee set forth in any Operative Document, (2) any Claim
resulting from Lessor Liens which the Lessor is responsible for discharging
under the Operative Documents, (3) any Claim arising from a breach or alleged
breach by the Lessor of any agreement entered into in connection with the
assignment or participation of Rent which does not arise from a breach by the
Lessee or the Guarantor of any of its obligations under the Operative Documents,
(4) any Claim arising from the Lessor's or any other Indemnitee's violation of
any state or federal law or regulation relating to banking or the offer or sale
of securities or (5) any Claim to the extent attributable to acts or events
occurring after the expiration of the Lease Term and the return or remarketing
of any Leased Asset so long as the Lessor is not exercising remedies against the
Lessee in respect of the Operative Documents. It is expressly understood and
agreed that the indemnity provided for herein shall survive the expiration or
termination of and shall be separate and independent from any remedy under this
Lease or any other Operative Document. Without limiting the express rights of
any Indemnitee hereunder, this SECTION 27.1 shall be construed as an indemnity
only and not a guaranty of residual value of any Leased Asset.
27.2 ENVIRONMENTAL INDEMNITY. Without limitation of the other
provisions of this ARTICLE XXVII, the Lessee hereby agrees to indemnify,
protect, defend, save and hold harmless each Indemnitee, on an After Tax Basis,
from and against any and all Claims, including all costs incurred in connection
with any investigation or monitoring of site conditions or any clean-up,
remedial, removal or restoration work by any federal, state or local government
agency, that may be imposed on, incurred by or asserted against such Indemnitee
(whether because of action or omission by such Indemnitee or otherwise), whether
or not such Indemnitee shall also be indemnified as to any such Claim by any
other Person and whether or not such Claim arises or accrues prior to the
Closing Date or after the Expiration Date, in any way relating to or arising out
of:
(a) the presence on or under any Property of any Hazardous
Materials, or any releases or discharges of any Hazardous Materials on, under,
from or onto any Property for which any Indemnitee or Lessee may be legally
liable,
(b) any activity for which any Indemnitee or Lessee may be
legally liable, carried on or undertaken on or off the Property, and whether by
the Lessee or any predecessor in title or any employees, agents, contractors or
subcontractors of the Lessee or any predecessor in title, or any other Persons
(including such Indemnitee), in connection with the handling, treatment,
removal, storage, decontamination, clean-up, transport or disposal of any
Hazardous Materials that at any time are located or present on or under or that
at any time migrate, flow, percolate, diffuse or in any way move onto or under
any Property,
(c) loss of or damage to any property or the environment
(including, clean-up costs, response costs, remediation and removal costs, cost
of corrective action, costs of financial assurance, fines and penalties and
natural resource damages), or death or injury to any Person, and all expenses
associated
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with the protection of wildlife, aquatic species, vegetation, flora and fauna,
and any mitigative action required by or under Environmental Laws for which any
Indemnitee or Lessee may be legally liable,
(d) any claim concerning any Indemnitee's or Lessee's lack of
compliance with Environmental Laws, or any act or omission by any Indemnitee,
the Lessee or any of their agents, employees or contractors causing an
environmental condition that requires remediation or would allow any
Governmental Authority to record a Lien on the land records, or
(e) any residual contamination on or under the Land, or
affecting any natural resources, and to any contamination of any property or
natural resources arising in connection with the generation, use, handling,
storage, transport or disposal of any such Hazardous Materials, and irrespective
of whether any of such activities were or will be undertaken in accordance with
applicable laws, regulations, codes and ordinances for which any Indemnitee or
Lessee may be legally liable;
PROVIDED, HOWEVER, the Lessee shall not be required to indemnify any Indemnitee
under this SECTION 27.2; for (1) any Claim to the extent resulting from the
willful misconduct or gross negligence of such Indemnitee (it being understood
that the Lessee shall be required to indemnify an Indemnitee even if the
ordinary (but not gross) negligence of such Indemnitee caused or contributed to
such Claim) or (2) any Claim to the extent attributable to acts or events
occurring after the expiration of the Lease Term and the return or remarketing
of the Properties so long as the Lessor is not exercising remedies against the
Lessee in respect of the Operative Documents. It is expressly understood and
agreed that the indemnity provided for herein shall survive the expiration or
termination of and shall be separate and independent from any remedy under this
Lease or any other Operative Document.
27.3 TAX INDEMNITY.
(a) The Lessee agrees, whether or not any of the transactions
contemplated hereby shall be consummated, to indemnify, protect, defend, save
and hold harmless each Indemnitee, on an After Tax Basis, from and against, any
and all Impositions that may be imposed on, incurred by or asserted against such
Indemnitee (whether because of action or omission by such Indemnitee or
otherwise), whether or not such Indemnitee shall also be indemnified as to any
such Impositions by any other Person and whether or not such Impositions arise
or accrue prior to the Closing Date or after the Expiration Date.
(b) Any Imposition indemnifiable under this SECTION 27.3 shall
be paid directly when due to the applicable taxing authority if direct payment
is practicable and permitted. If direct payment to the applicable taxing
authority is not permitted or is otherwise not made, any amount payable to an
Indemnitee pursuant to this SECTION 27.3 shall be paid within thirty (30) days
after receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the amount so payable, but not
before two Business Days prior to the date that the relevant Taxes are due. Any
payments made pursuant to this SECTION 27.3 directly to the Indemnitee entitled
thereto shall be made in immediately available funds at such bank or to such
account as specified by the payee in written directions to the payor, or, if no
such direction shall have been given, by check of the payor payable to the order
of the payee by certified mail, postage prepaid at its address. Upon the request
of any Indemnitee with respect to an Imposition that the Lessee is required to
pay, the Lessee shall furnish such Indemnitee the original or a certified copy
of a receipt for the Lessee's payment of such Imposition or such other evidence
of payment as is reasonably acceptable to such Indemnitee.
(c) Except in the case of a payment to any Lender, at the
Lessee's request, the amount of any indemnity payment by the Lessee pursuant to
this SECTION 27.3 shall be verified and certified by an independent public
accounting firm mutually acceptable to the Lessee and the Indemnitee. The
Indemnitee shall provide such independent public accounting firm, on a
confidential basis, the requisite
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financial information. The costs of such verification shall be borne by the
Lessee unless such verification shall result in an adjustment in the Lessee's
favor of the lesser of (i) $10,000, and (ii) five percent of the payment as
computed by the Indemnitee, in which case such fee shall be paid by the
Indemnitee. In no event shall the Lessee have the right to review the
Indemnitee's tax returns or receive any other confidential information from the
Indemnitee in connection with such verification. Any information provided to
such independent public accounting firm by any Person shall be and remain the
exclusive property of such Person and shall be deemed by the parties to be (and
the independent public accounting firm will confirm in writing that they will
treat such information as) the private, proprietary and confidential property of
such Person, and no Person other than such Person and the independent public
accounting firm shall be entitled thereto and all such materials shall be
returned to such Person. Such independent public accounting firm shall be
requested to make its determination within thirty (30) days of the Lessee's
request for verifications and the computations of the independent public
accounting firm shall be final, binding and conclusive upon the Lessee and the
Indemnitee. The parties agree that the sole responsibility of the independent
public accounting firm shall be to verify the amount of a payment pursuant to
this Lease and that matters of interpretation of this Lease are not within the
scope of the independent public accounting firm's responsibilities.
(d) The Lessor represents and warrants that it will not, prior
to the termination of this Lease, claim ownership of (or any tax benefits,
including depreciation, with respect to) the Leased Assets for any income tax
purposes, it being understood that the Lessee is and will remain the owner of
the Leased Assets for such income tax purposes until the termination of this
Lease.
27.4 PROCEEDINGS IN RESPECT OF CLAIMS.
(a) If any Claim shall be made against any Indemnitee or if any
action, suit or proceeding shall be brought against any Indemnitee in respect of
any Claim for which such Indemnitee is entitled to be indemnified hereunder,
such Indemnitee shall promptly notify the Lessee in writing (PROVIDED that
failure to so notify the Lessee shall not alter such Indemnitee's rights under
this SECTION 27 except to the extent such failure precludes or materially
adversely affects the Lessee's ability to conduct a contest of any Claim), and
the Lessee shall be entitled, at its expense, to participate in, and, to the
extent that the Lessee desires to, assume and control the defense thereof;
PROVIDED, HOWEVER, that the Lessee shall have acknowledged in writing its
obligation to fully indemnify such Indemnitee in respect of such action, suit or
proceeding, and, the Lessee shall keep such Indemnitee fully apprised of the
status of such action, suit or proceeding and shall provide such Indemnitee with
all information with respect to such action, suit or proceeding as such
Indemnitee shall reasonably request, and PROVIDED, further, that the Lessee
shall not be entitled to assume and control the defense of any such action, suit
or proceeding if and to the extent that, (A) in the reasonable opinion of such
Indemnitee, (x) such action, suit or proceeding involves any risk of imposition
of criminal liability or any risk of imposition of material civil liability on
such Indemnitee beyond that for which the Indemnitee is jointly and severally
liable with the Lessor or will involve a material risk of the sale, forfeiture
or loss of, or the creation of any Lien (other than a Permitted Lien) on any
Leased Asset or any part thereof unless, in the case of civil liability, the
Lessee shall have posted a bond or other security satisfactory to the relevant
Indemnitees in respect to such risk or (y) the control of such action, suit or
proceeding would involve a material conflict of interest on the part of the
Lessee, (B) such proceeding involves Claims not fully indemnified by the Lessee
which the Lessee and the Indemnitee have been unable to sever from the
indemnified claim(s), or (C) an Event of Default has occurred and is continuing.
The Indemnitee may participate in a reasonable manner at its own expense and
with its own counsel in any proceeding conducted by the Lessee in accordance
with the foregoing. The Lessee shall not enter into any settlement or other
compromise with respect to any Claim which is entitled to be indemnified under
SECTION 27.1, 27.2 or 27.3 without the prior written consent of the Indemnitee
which consent shall not be unreasonably withheld in the case of a money
settlement not involving an admission of liability of such Indemnitee; PROVIDED,
HOWEVER, that in the event that such
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Indemnitee withholds consent to any settlement or other compromise, the Lessee
shall not be required to indemnify such Indemnitee under SECTION 27.1, 27.2 or
27.3 to the extent that the applicable Claim (x) is for legal fees and expenses
incurred after the date of the proposed settlement or (y) results in a judgment
in excess of such offered money settlement.
(b) Each Indemnitee shall at the expense of the Lessee supply
the Lessee with such information and documents reasonably requested by the
Lessee and in the possession of such Indemnitee as are necessary or advisable
for the Lessee to participate in any action, suit or proceeding to the extent
permitted by this SECTION 27.4. Unless an Event of Default shall have occurred
and be continuing under SECTION 20.1(a), (g) OR (h), no Indemnitee shall enter
into any settlement or other compromise with respect to any Claim for which it
is entitled to be indemnified under SECTION 27.1, 27.2 or 27.3 without the prior
written consent of the Lessee, which consent shall not be unreasonably withheld,
unless such Indemnitee waives its right to be indemnified under SECTION 27.1,
27.2 or 27.3 with respect to such Claim.
(c) Any amount required to be paid to an Indemnitee pursuant to
SECTION 27.1 or 27.2 shall be paid to such Indemnitee promptly upon receipt of a
written demand therefor from such Indemnitee, accompanied by a written statement
describing in reasonable detail the basis for such indemnity and the computation
of the amount so payable and, if requested by the Lessee, such determination
shall be verified by a nationally recognized independent accounting firm
mutually acceptable to the Lessee and the Indemnitee at the expense of the
Lessee; PROVIDED, HOWEVER, that if the Lessee has assumed the defense of the
related Claim or is paying the costs of the Indemnitee's defense of the related
Claim on an ongoing basis, the Lessee shall not be required to pay such amount
to the applicable Indemnitee until such time as a judgment is entered with
respect to such Claim, the enforcement of which is not stayed or which judgment
is not bonded over, or the Claim is otherwise settled or lost. Upon
reimbursement of payment in full of any Claim by the Lessee pursuant to SECTION
27.1, 27.2 or 27.3 to or on behalf of an Indemnitee, the Lessee, without any
further action, shall be subrogated to any and all claims that such Indemnitee
may have relating thereto (including claims in respect of insurance policies
maintained by such Indemnitee at its own expense), and such Indemnitee shall
execute such instruments of assignment and conveyance, evidence of claims and
payment and such other documents, instruments and agreements as may be necessary
to preserve any such claims and otherwise cooperate with the Lessee and give
such further assurances as are necessary or advisable to enable the Lessee
vigorously to pursue such claims.
27.5 CONSTRUCTION PROPERTIES. Notwithstanding anything to the
contrary in this SECTION 27, the Lessee's obligation to indemnify any Indemnitee
for any Claim or Imposition relating to a Construction Property during the
Construction Period applicable thereto shall be subject to the provisions of
SECTION 2.9 of the Construction Agency Agreement.
ARTICLE XXVIII
ESTOPPEL CERTIFICATES
28.1 ESTOPPEL CERTIFICATES. At any time and from time to time upon
not less than twenty (20) days' prior request by the Lessor or the Lessee (the
"REQUESTING PARTY"), the other party (whichever party shall have received such
request, the "CERTIFYING PARTY") shall furnish to the Requesting Party (but in
the case of the Lessor, as Certifying Party, not more than four (4) times per
year unless required to satisfy the requirements of any sublessees and only to
the extent that the required information has been provided to the Lessor by the
Lessee) a certificate signed by an individual having the office of vice
president or higher in the Certifying Party certifying that this Lease is in
full force and effect (or that this Lease is in full force and effect as
modified and setting forth the modifications); the dates to which the Base Rent
and Supplemental Rent have been paid; to the best knowledge of the signer of
such certificate, whether or not
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the Requesting Party is in default under any of its obligations hereunder (and,
if so, the nature of such alleged default); and such other matters under this
Lease as the Requesting Party may reasonably request. Any such certificate
furnished pursuant to this ARTICLE XXVIII may be relied upon by the Requesting
Party, and any existing or prospective mortgagee, purchaser or lender, and any
accountant or auditor, of, from or to the Requesting Party (or any Affiliate
thereof).
ARTICLE XXIX
ACCEPTANCE OF SURRENDER
29.1 ACCEPTANCE OF SURRENDER. No surrender to the Lessor of this
Lease or of all or any portion of any Leased Asset 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 the Lessor, and no act by the Lessor or any
representative or agent of the Lessor, other than a written acceptance, shall
constitute an acceptance of any such surrender.
ARTICLE XXX
NO MERGER OF TITLE
30.1 NO MERGER OF TITLE. There shall be no merger of this Lease or of
the leasehold estate created hereby by reason of the fact that the same Person
may acquire, own or hold, directly or indirectly, in whole or in part, (i) this
Lease or the leasehold estate created hereby or any interest in this Lease or
such leasehold estate, (ii) the fee or ground leasehold estate in any Leased
Asset, except as may expressly be stated in a written instrument duly executed
and delivered by the appropriate Person or (iii) a beneficial interest in the
Lessor.
ARTICLE XXXI
INTENT OF THE PARTIES
31.1 OWNERSHIP OF THE LEASED ASSETS.
(a) It is the intent of the parties hereto that for financial
accounting and reporting purposes this Lease constitutes an "operating lease"
pursuant to Statement of Financial Accounting Standards No. 13, as amended, and
for purposes of commercial, real estate, bankruptcy and federal, state and local
income tax law, the transaction contemplated hereby is a financing arrangement
and preserves ownership of the Property in the Lessee.
(b) It is the intent of the parties hereto that (i) for all
purposes other than financial accounting and reporting, the obligations of the
Lessee under this Lease to pay Capitalized Interest or Basic Rent and
Supplemental Rent or Lease Balance in connection with any purchase of the
Property pursuant to this Lease shall be treated as payments of interest on and
principal of, respectively, loans from the Lessor to the Lessee, and (ii) this
Lease grants to the Lessor a security interest and deed of trust on the portions
of the Property which do not constitute interests in real property, in each case
to secure the Lessee's performance under and payment of all amounts under this
Lease and the other Operative Documents. The Lessor and the Lessee agree that
for all federal, state and local tax purposes the Lessor and the Lessee shall
treat, and take no action that is in any way inconsistent with the treatment of,
the transaction contemplated hereby as a financing arrangement which preserves
tax ownership of the Property in the Lessee in accordance with the intent of the
parties as set forth in this SECTION 31.1.
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ARTICLE XXXII
PAYMENT OF EXPENSES; YIELD PROTECTION
32.1 TRANSACTION EXPENSES.
(a) The Lessee shall pay, or cause to be paid, from time to time
all Transaction Expenses in respect of the transactions taking place on the
Closing Date and on each Funding Date on such respective date; PROVIDED,
HOWEVER, that, if the Lessee has not received written invoices therefor five (5)
days prior to such date, such Transaction Expenses shall be paid on the earlier
of (i) the next Funding Date and (ii) the date thirty-five (35) days after the
Lessee has received written invoices therefor.
(b) The Lessee shall promptly pay or cause to be paid (i) all
reasonable Transaction Expenses from time to time incurred by the Lessor, the
Administrative Agent, the Collateral Agent and each Equity Participant in
entering into any future amendments or supplements with respect to any of the
Operative Documents, or giving or withholding of waivers of consents hereto or
thereto (in each case, which has been requested or approved by the Lessee), (ii)
all reasonable Transaction Expenses incurred by the Lessor, the Administrative
Agent and the Collateral Agent in connection with any purchase, sale or exchange
of any Leased Asset by the Lessee or other Person pursuant to this Lease or the
Construction Agency Agreement and (iii) all Transaction Expenses incurred by the
Lessor, the Administrative Agent, the Collateral Agent, each Lender and each
Equity Participant in respect of enforcement of any of their rights or remedies
against the Lessee or the Guarantor in respect of the Operative Documents.
(c) Notwithstanding anything to the contrary contained herein,
if the Lessor has paid any Transaction Costs which the Lessee is responsible for
paying hereunder or under the other Operative Documents, then, in lieu of
requiring the Lessee to reimburse the Lessor therefor, the Lessor may, on the
Acquisition Date for any Property, add a pro rata portion of such unreimbursed
Transaction Costs (plus the Lessor's cost of financing the same from the date
paid by the Lessor to such Acquisition Date) to the Lease Balance for such
Property, and the Lessor shall be deemed to have made a Funding in an amount
equal to such pro rata portion.
32.2 BROKERS' FEES AND STAMP TAXES. The Lessee shall pay or cause to
be paid any brokers' fees and any and all stamp, transfer and other similar
taxes, fees and excises, if any, including any interest and penalties, which are
payable in connection with the transactions contemplated by this Lease and the
other Operative Documents. The Lessor and the Lessee each represent to the other
that it has not employed any brokers in connection with the transactions
contemplated by the Operative Documents.
32.3 FUNDING LOSSES. If (i) any payment of Base Rent or any portion
of a Lease Balance is made on any day other than a Scheduled Payment Date
therefor, (ii) any Funding is not made on the date specified therefor in the
related Funding Request (other than as a result of a breach by the Lessor of its
obligation under SECTION 3.1 to make such Funding) or (iii) the Eurodollar Rate
applicable to any Loan or equity contribution made to the Lessor is converted to
the Alternate Base Rate on any day other than a Scheduled Payment Date, then the
Lessee shall pay, as Supplemental Rent, to the Lessor, each Lender and each
Equity Participant within fifteen (15) days after demand an amount equal to any
resulting loss or expense incurred by it, including (without limitation) any
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment,
PROVIDED that the Lessor, such Lender or such Equity Participant, as the case
may be, shall have delivered to the Lessee a certificate as to the amount of
such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
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32.4 REGULATION D COMPENSATION. For so long as any Equity Participant
or any Lender is required to maintain reserves against "Eurocurrency
Liabilities" (or any other category of liabilities which include deposits by
reference to which the Base Rent is determined or any category of extensions of
credit or other assets which includes loans by a non-United States office of any
Lender to United States residents), and, as a result, the cost to (i) any Equity
Participant of making or maintaining its equity contributions pursuant to the
Trust Agreement or (ii) any Lender of making or maintaining its Loans, which in
each case bear interest by reference to the Eurodollar Rate is increased, then
the Lessor, on behalf of such Equity Participant or such Lender, as the case may
be, may require the Lessee to pay, contemporaneously with each payment of Base
Rent, as Supplemental Rent, an additional amount at a rate per annum up to but
not exceeding the excess of (i) (A) the applicable Eurodollar Rate divided by
(B) one minus the Eurocurrency Reserve Requirements over (ii) the applicable
Eurodollar Rate to reimburse such Equity Participant or such Lender. In the
event that an Equity Participant or a Lender wishes to require payment of such
additional amount, the Lessor (x) shall so notify the Lessee, in which case such
Supplemental Rent shall be payable to such Equity Participant or such Lender, as
the case may be, at the place indicated in such notice and (y) shall furnish to
the Lessee at least five (5) Business Days prior to each date on which Rent is
payable a certificate setting forth the amount to which it is then entitled
under this Section. Each such certificate shall be accompanied by such
information as the Lessee may reasonably request as to the computation set forth
therein.
32.5 INCREASED COST AND REDUCED RETURN.
(a) In the event that the adoption of any applicable law, rule
or regulation, or any change therein or in the interpretation or application
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof or compliance by the Lessor,
any Equity Participant or any Lender with any request or directive after the
date hereof (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) does or shall impose, modify or hold applicable any
reserve, special deposit, insurance assessment, compulsory loan or
similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, or other
credit extended by, or any other acquisition of funds by, the Lessor,
any office of any Equity Participant or any Lender which are not
otherwise included in determination of calculation of Base Rent
hereunder or covered by SECTION 32.4; or
(ii) does or shall impose on the Lessor, any Equity
Participant or any Lender any other condition;
and the result of any of the foregoing is to increase the cost to any Equity
Participant or any Lender of making or maintaining Fundings, contributions under
the Trust Agreement or Loans, in each case based on the Eurodollar Rate, as the
case may be, or to reduce any amount receivable hereunder in respect thereof,
then from time to time, within fifteen (15) days after demand by any Equity
Participant or any Lender, the Lessee shall pay to the Lessor, as Supplemental
Rent, any additional amounts necessary to compensate such affected Person for
such increased cost or reduced amount receivable.
(b) If any Equity Participant or any Lender shall have
determined that the adoption after the date hereof of any applicable law, rule
or regulation regarding capital adequacy, or any change therein after the date
hereof, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive issued
after the date hereof regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on capital of any Equity
Participant or any Lender (or any entity directly or
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indirectly controlling any of such Persons) as a consequence of their respective
obligations under the Operative Documents to a level below that which they could
have achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy), then from time to
time, within fifteen (15) days after demand by any Equity Participant or any
Lender, the Lessee shall pay to the Lessor, as Supplemental Rent, such
additional amount or amounts as will compensate the Equity Participants and the
Lenders (or their respective controlling entities) for such reduction.
(c) The Lessor, any Equity Participant and any Lender will
notify the Lessee of any event occurring after the date of this Lease which will
entitle such entity to compensation pursuant to SECTION 32.5(a) OR (b) (an
"ADDITIONAL COST EVENT") as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation, and (if so requested by the
Lessee) will designate a different office for its Fundings, equity contributions
or Loans, as the case may be, if such designation would avoid the need for, or
reduce the amount of, such compensation and will not, in the sole opinion of the
Lessor, such Equity Participant or such Lender, be disadvantageous to it;
PROVIDED that the Lessee shall not be obligated to compensate the Lessor, such
Equity Participant or such Lender for any such additional costs incurred more
than 180 days prior to the time the Lessor, such Equity Participant or such
Lender first notifies the Lessee of such Additional Cost Event. A statement of
the Lessor, any Equity Participant or any Lender claiming compensation under
SECTION 32.5 (a) OR (b), setting forth the calculations and the basis therefor
(using reasonable averaging and attribution methods), in each case in reasonable
detail, shall be conclusive absent manifest error.
(d) If any Equity Participant or Lender requests compensation
from the Lessee under SECTION 32.4 or SECTION 32.5, the Lessee may, by notice to
the Lessor, require the Lessor to exercise any rights available to it under the
Trust Agreement or the Credit Agreement to cause the yield on its equity
contributions or the interest on the Loans, as the case may be, to be based upon
the Alternate Base Rate from and after the last day of the current Interest
period with respect thereto and until the Additional Cost Event giving rise to
such request ceases to be in effect.
ARTICLE XXXIII
OTHER COVENANTS AND AGREEMENTS OF LESSEE
33.1 INFORMATION. The Lessee will deliver to the Lessor and the
Administrative Agent:
(a) within five (5) days after a Responsible Employee of the
Lessee or any Affiliate of the Lessee obtains knowledge thereof, notice of (i)
the occurrence of each Default or Event of Default and (ii) the commencement of
any litigation which is of the type referred to in SECTION 6.2(d) or which, if
adversely determined, could have a material adverse effect on the value of any
Leased Asset, in each case together with a statement of an authorized officer
setting forth details thereof and the action that the Lessee proposes to take
with respect thereto;
(b) from time to time, such additional information regarding (i)
the business, properties, financial condition, operations or prospects of the
Lessee, the Guarantor or its Subsidiaries, or (ii) the Leased Assets or the
status of any construction thereon, in each case as the Lessor or the
Administrative Agent may reasonably request; and
(c) not later than five (5) Business Days after execution
thereof, copies of all amendments to and waivers of the Iron Mountain Credit
Agreement.
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ARTICLE XXXIV
MISCELLANEOUS
34.1 SURVIVAL; SEVERABILITY; ETC. If any term or provision of this
Lease or any application thereof shall be declared invalid or unenforceable, the
remainder of this Lease and any other application of such term or provision
shall not be affected thereby. If any right or option of the Lessee provided in
this Lease would, in the absence of the limitation imposed by this sentence, be
invalid or unenforceable as being in violation of the rule against perpetuities
or any other rule of law relating to the vesting of an interest in or the
suspension of the power of alienation of property, then such right or option
shall be exercisable only during the period which shall end twenty-one (21)
years after the date of death of the last survivor of the descendants of
Franklin D. Roosevelt, the former President of the United States, and John D.
Rockefeller, the founder of the Standard Oil Company, known to be alive on the
date of the execution, acknowledgement and delivery of this Lease.
34.2 AMENDMENTS AND MODIFICATIONS. Neither this Lease nor any
provision hereof may be amended, modified, supplemented, waived, discharged or
terminated except by an instrument in writing signed by the Lessor and the
Lessee.
34.3 NO WAIVER. No failure by the Lessor or the 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.
34.4 NOTICES. All notices, demands, requests, consents, approvals
and other communications hereunder shall be in writing (including by facsimile),
and directed to the address of the appropriate party as set forth in SCHEDULE I
hereto.
34.5 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.
34.6 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.
34.7 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.
34.8 GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES, EXCEPT AS TO MATTERS RELATING TO THE
CREATION OF THE LEASEHOLD ESTATES HEREUNDER WITH RESPECT TO ANY PROPERTY (AS
DEFINED IN THIS LEASE) AND THE EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT
THERETO, WHICH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE WHERE SUCH PROPERTY IS LOCATED. WITHOUT LIMITING THE FOREGOING, TO THE
EXTENT THAT THIS LEASE IS DEEMED TO CONSTITUTE A FINANCING AS PROVIDED IN
SECTION 31.1, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES, SHALL GOVERN THE CREATION, TERMS AND PROVISIONS OF ANY
INDEBTEDNESS EVIDENCED HEREBY, BUT ANY LIEN CREATED HEREBY AND THE CREATION AND
THE
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ENFORCEMENT OF SAID LIEN WITH RESPECT TO ANY PROPERTY (AS DEFINED IN THIS LEASE)
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE WHERE
SUCH PROPERTY IS LOCATED.
34.9 ORIGINAL LEASE. The single executed original of this Lease
containing the receipt of the Lessor therefor on or following the signature page
thereof shall be the Original Executed Counterpart of this Lease (the "ORIGINAL
EXECUTED COUNTERPART"). To the extent that this Lease constitutes chattel paper,
as such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction, no security interest in this Lease may be created
through the transfer or possession of any counterpart other than the Original
Executed Counterpart.
34.10 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS LEASE AND/OR ANY OF THE OTHER OPERATIVE DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF SUCH PARTIES. THE PARTIES
HERETO ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THE LEASE AND EACH SUCH OTHER OPERATIVE
DOCUMENTS.
34.11 NATURE OF LESSOR'S OBLIGATIONS; LIMITATIONS ON LIABILITY;
SURVIVAL.
(a) Notwithstanding any provision to the contrary in this Lease,
except with respect to Lessor Liens, any breach by an Equity Participant of a
valid obligation to make an Equity Contribution, any representation or warranty
made by the Trustee in its individual capacity in any Operative Document and
CLAUSE (v) or (vi) of SECTION 34.11(b), it is understood and agreed that
(irrespective of any breach of any representation (except any representation
made by the Trustee in its individual capacity), covenant, agreement or
undertaking of any nature whatsoever made by the Lessor in this Lease or in any
other Operative Document) no recourse shall be had under any rule of law,
statute or constitution or by the enforcement of any assessments or penalties or
otherwise for the payment of any amounts due hereunder or for any claim based
herein or otherwise in respect hereof against (i) the Trustee, in its individual
capacity (except as a result of its gross negligence, fraud or willful
misconduct) or any past, present or future Affiliate, officer, director, owner,
beneficiary, shareholder, agent, employee or partner of the Borrower or any of
its legal representatives, successors or assigns or (ii) any Person on the
grounds that, in entering into the transaction evidenced by any of the Operative
Documents to which the Lessor is a party, the Lessor or any Equity Participant
was acting as an agent for the account and benefit of such Person and that such
Person was or was alleged to be the principal of the Lessor (unless the Lessor
is acting or failing to act in accordance with instructions of such Person). By
entering into this Lease, each party hereto agrees that (except as specifically
provided above) all such liability (x) of the Trustee, in its individual
capacity, or any past, present or future Affiliate, officer, director, owner,
beneficiary, shareholder, agent, employee or partner of the Borrower or any of
their respective legal representatives, successors or assigns or (y) of such
other Person, is and is being expressly waived and released as a condition of
and as a consideration for the execution of the Operative Documents.
(b) Nothing contained herein or in any of the other Operative
Documents, however, shall be taken to (i) prevent recourse to and the
enforcement against the Collateral of and for all liabilities, obligations and
undertakings contained in the Operative Documents, (ii) limit, restrict, or
impair the right of the Lenders to accelerate the maturity of the Notes upon the
occurrence of an Event of Default (as defined in the Credit Agreement), (iii)
prevent the bringing of an action or obtaining of a judgment
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against the Lessor; PROVIDED that, except as set forth in CLAUSES (v) and (vi)
below and as provided in the preceding paragraph, none of the Trustee, in its
individual capacity, nor any past, present or future Affiliate, officer,
director, owner, beneficiary, shareholder, agent, employee or partner thereof or
any of their respective legal representatives, successors or assigns shall have
any individual or personal liability on such judgment and the satisfaction
thereof shall be limited to the sums due and to become due under this Lease, the
Construction Agency Agreement or the Guaranty and to the other Collateral, (iv)
prevent the bringing of an action or obtaining of a judgment to foreclose the
lien of any Mortgage or otherwise realize upon the sums due or to become due
under this Lease, the Construction Agency Agreement or the Guaranty or upon the
Collateral, including the right to proceed against the Lessee under this Lease
or the Construction Agency Agreement, or the Guarantor under the Guaranty, (v)
prevent recourse against the Trustee, in its individual capacity, for payment of
net income, franchise, estate, inheritance, succession, transfer or profits
taxes assessed against the Trustee, in its individual capacity, that the Lessee
is not obligated to pay or discharge under the Lease, or (vi) prevent recourse
to the Trustee, in its individual capacity, directly for damages resulting from
its fraud, gross negligence or willful misconduct.
(c) The provisions of this SECTION 34.11 shall survive the
termination of this Lease and the other Operative Documents.
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IN WITNESS WHEREOF, the parties have caused this Lease be duly executed
and delivered as of the date first above written.
IRON MOUNTAIN STATUTORY TRUST - 2001,
as Lessor
By: First Union National Bank,
not in its individual capacity, except
as expressly provided herein, but
solely as trustee
By: /s/ W. Jeffrey Kramer
-----------------------------------------
Name: W. Jeffrey Kramer
Title: Vice President
IRON MOUNTAIN RECORDS
MANAGEMENT, INC.,
as Lessee
By: /s/ John P. Lawrence
-----------------------------------------
Name: John P. Lawrence
Title: Vice President
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THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of the date hereof.
THE BANK OF NOVA SCOTIA,
as Collateral Agent
By: /s/ T.M. Pitcher
-----------------------------------------------
Name: T.M. Pitcher
Title: Authorized Signatory
<Page>
APPENDIX 1
TO MASTER LEASE AND SECURITY AGREEMENT
DEFINITIONS AND INTERPRETATION
A. INTERPRETATION. In each Operative Document, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and VICE VERSA;
(ii) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are permitted by
the Operative Documents, and, unless otherwise provided or the context otherwise
requires, reference to a Person in a particular capacity excludes such Person in
any other capacity or individually;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement, document or instrument means such
agreement, document or instrument as amended or modified and in effect from time
to time in accordance with the terms thereof and, if applicable, the terms of
the other Operative Documents and reference to any promissory note includes any
promissory note which is an extension or renewal thereof or a substitute or
replacement therefor;
(v) reference to any Applicable Law means such Applicable Law as
amended, modified, codified, replaced or reenacted, in whole or in part, and in
effect from time to time, including rules and regulations promulgated
thereunder, and reference to any section or other provision of any Applicable
Law means that provision of such Applicable Law from time to time in effect and
constituting the substantive amendment, modification, codification, replacement
or reenactment of such section or other provision;
(vi) reference in any Operative Document to any Article, Section,
Appendix, Schedule or Exhibit means such Article or Section thereof or Appendix,
Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar import shall
be deemed references to an Operative Document as a whole and not to any
particular Article, Section or other provision thereof;
(viii) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding such
term;
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(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time, "from" means
"from and including" and "to" means "to but excluding".
B. ACCOUNTING TERMS. In each Operative Document, unless expressly
otherwise provided, accounting terms shall be construed and interpreted, and
accounting determinations and computations shall be made, in accordance with
GAAP (as defined herein).
C. CONFLICT IN OPERATIVE DOCUMENTS. If there is any conflict between
any Operative Documents, such Operative Document shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) of such conflict, the Lease shall prevail and
control.
D. LEGAL REPRESENTATION OF THE PARTIES. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring the Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
E. DEFINED TERMS. Unless a clear contrary intention appears, terms
defined herein have the respective indicated meanings when used in each
Operative Document. All capitalized terms used in the Operative Documents but
not otherwise defined in this APPENDIX 1 shall have the meanings, where
applicable, given to such terms in the Credit Agreement (as defined herein).
"ACCOUNTS RECEIVABLE FINANCING" means any accounts receivable sale
arrangement, credit facility or conditional purchase contract or similar
arrangement providing financing secured directly or indirectly by the accounts
receivable and related records, collateral and rights of the Guarantor or its
Subsidiaries; PROVIDED that any such transaction shall be consummated pursuant
to documentation in form and substance reasonably satisfactory to the IM
Administrative Agent, as evidenced by its written approval thereof (such
approval not to be unreasonably withheld).
"ACQUIRED DEBT" means, with respect to the Guarantor or any Subsidiary,
Indebtedness of any other Person, existing at the time such other Person merged
with or into or became a Subsidiary of the Guarantor or any Subsidiary thereof
in connection with a Permitted Acquisition occurring after the Effective Date,
PROVIDED that (i) such Indebtedness was not created by such other Person in
contemplation of such acquisition and (ii) the aggregate outstanding principal
amount of such Indebtedness shall not at any time exceed $15,000,000, PROVIDED,
FURTHER, that if the amount "$15,000,000" in the definition of "Acquired Debt"
in the Iron Mountain Credit Agreement is changed pursuant to any amendment,
modification or supplement of the Iron Mountain Credit Agreement, then the
amount "$15,000,000" contained in this definition shall likewise change.
"ACQUISITION" means an acquisition of assets of, or all or
substantially all of the capital stock of, another business by Guarantor and/or
one or more of its Subsidiaries.
"ACQUISITION CONSIDERATION" means, with respect to any Acquisition, the
aggregate amount of consideration paid by Guarantor and its Subsidiaries in
connection therewith, inclusive of (a) Stock Consideration and (b) other
consideration on account of (i) any expenses incurred in connection with such
Acquisition, (ii) liabilities under agreements not to compete incurred in
connection with such Acquisition, (iii) the principal amount of Indebtedness
assumed in connection with such Acquisition and (iv) Additional Expenditures
related to such Acquisition.
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"ACQUISITION DATE" means, with respect to any Property, (i) the Funding
Date on which the Lessor acquires title to, or a leasehold interest in, the Land
constituting a part of such Property or (ii) the Exchange Date on which the
Lessor acquires any Substituted Property.
"ACQUISITION FUNDING REQUEST" means a funding request substantially in
the form of EXHIBIT A-1 to the Lease.
"ADDITIONAL EXPENDITURES" means, with respect to any Acquisition,
amounts expended or to be expended by Guarantor and its Subsidiaries within
twelve months after the date of such Acquisition to acquire or construct
facilities and equipment that are not part of the assets acquired pursuant to
such Acquisition but which are deemed by Guarantor to be essential for the
integration or restructuring of the assets so acquired.
"ADDITIONAL PAYMENT DATE" means each, the last day of each Interest
Period which does not end on a Scheduled Payment Date and the Expiration Date
for each Leased Asset.
"ADJUSTED EBITDA" means, for any period, Consolidated EBITDA for such
period, minus the tax provision for such period currently payable.
"ADMINISTRATIVE AGENT" means The Bank of Nova Scotia, in its capacity
as administrative agent under the Credit Agreement.
"ADMINISTRATIVE AGENT FEE LETTER" means the letter agreement, dated May
22, 2001, among the Guarantor, the Lessee and the Administrative Agent.
"AFFILIATE" means, when used with respect to any Person, any other
Person directly or indirectly Controlling or Controlled by or under direct or
indirect common Control with such Person.
"AFTER TAX BASIS" means, with respect to any payment to be received,
the amount of such payment increased so that, after subtracting the amount of
any taxes required to be paid by the recipient with respect to the receipt by
the recipient of such payment (after taking into account any deduction to which
the recipient is entitled with respect to such payment), such payment (as so
reduced) is equal to the payment otherwise required to be made.
"ALTERNATE BASE RATE" means, for any day, an interest rate equal to the
higher of (i) the sum of the Federal Funds Effective Rate for such day PLUS
0.50% per annum and (ii) the base rate of the Administrative Agent as in effect
on such day.
"APPLICABLE LAW" means all existing and future applicable laws, rules,
regulations, statutes, treaties, codes, ordinances, permits, certificates,
orders and licenses of and interpretations by, any Governmental Authority
(including Environmental Laws), and applicable judgments, decrees, injunctions,
writs, orders or like action of any court, arbitrator or other administrative,
judicial or quasi-judicial tribunal or agency of competent jurisdiction.
"APPLICABLE LEVERAGE RATIO" means, at any time, the Leverage Ratio as
at the end of the most recent fiscal quarter of the Guarantor in respect of
which financial statements have been delivered by the Guarantor pursuant to
SECTION 10 of the Guaranty; PROVIDED, that no change in the Applicable Leverage
Ratio will take effect until the date five (5) Business Days following receipt
by the Administrative Agent of the applicable financial statements.
"APPRAISAL" means, with respect to any Property or any portion thereof,
an appraisal, prepared by a reputable appraiser selected by the Administrative
Agent, of such Property or such portion which 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 Requirements of Law and, in the case of the Appraisal delivered
on or prior to the Acquisition Date for
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such Property, will appraise the Fair Market Sales Value of such Property (i) as
built in accordance with the Plans and Specifications as of Substantial
Completion for such Property (in the case of Construction Property) or as
improved by any Tenant Improvements (in the case of a Property for which the
Lessor is funding Tenant Improvements) and (ii) as of the Expiration Date for
such Property.
"APPURTENANT RIGHTS" means (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 any Land or the related Improvements, including the use of any streets, ways,
alleys, vaults or strips of land adjoining, abutting, adjacent or contiguous to
such Land and (ii) all permits, licenses and rights, whether or not of record,
appurtenant to such Land.
"ARCHITECT" means an independent architect employed by Lessee in
connection with the transactions contemplated by the Construction Agency
Agreement.
"ASSETS" means, with respect to any Person, any and all assets or
property of any kind, real or personal, tangible or intangible, now owned or
hereafter acquired by such Person.
"AVAILABLE COMMITMENT" means, at any time, an amount equal to the
excess, if any, of (i) the amount of the Total Commitment over (ii) the
aggregate principal amount of all Fundings made or deemed made prior to such
time.
"BANKRUPTCY LAWS" means Title 11 of the United States Code or any other
Federal or state bankruptcy, insolvency or similar law, now or hereafter in
effect in the United States relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts of any Person.
"BASE DATE" means November 22, 2002.
"BASE LEASE TERM" means, with respect to each Leased Asset, the period
commencing on the Base Date and ending on the Expiration Date for such Leased
Asset; PROVIDED, HOWEVER, that if the Lease Commencement Date for any
Construction Property is after the Base Date, then the Base Lease Term for such
Property shall be the period from such Lease Commencement Date to the Expiration
Date.
"BASE RATE TRANCHE" means a portion of a Lease Balance funded by a Debt
Contribution which bears interest at a fluctuating rate based upon the Alternate
Base Rate.
"BASE RENT" means the amount determined under APPENDIX 2 to the Lease.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"BUDGET" means, with respect to any Construction Property, the budget
for the Construction of the Improvements to such Property, as such budget may be
amended from time to time in accordance with the Construction Agency Agreement.
"BUSINESS DAY" means each day which is not a day on which banks in New
York or London are generally authorized or obligated, by law or executive order,
to close.
"CAPITAL EXPENDITURES" means capital expenditures by the Guarantor or
any of its Subsidiaries during the relevant period determined in accordance with
GAAP.
"CAPITAL LEASE OBLIGATIONS" means, as to any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP (including Statement of Financial Accounting
Standards No. 13 of the Financial Accounting Standards Board) and the amount of
such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP (including such Statement No. 13).
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"CAPITALIZED COMMITMENT FEES" means, with respect to any Construction
Property after the Acquisition Date therefor but prior to the Lease Commencement
Date therefor, an amount for each Interest Period equal to the Commitment Fees
accruing during such Interest Period in respect of the portion of the Available
Commitment equal to the daily average amount by which the Maximum Lease Balance
for such Property exceeds the Lease Balance for such Property.
"CAPITALIZED INTEREST" means, with respect to any Construction Property
after the Acquisition Date therefor but prior to the Lease Commencement Date
therefor, an amount for each Interest Period equal to the sum of (i) the amount
of interest payable under the Credit Agreement for such Interest Period with
respect to the Debt Portion of the Lease Balance of such Property and (ii) the
amount of certificate yield payable under the Trust Agreement for such Interest
Period with respect to the Equity Portion of the Lease Balance of such Property.
"CASUALTY" means any loss, theft, damage or destruction of all or any
portion of a Leased Asset.
"CERCLA" means 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.
"CERTIFYING PARTY" is defined in SECTION 28.1 of the Lease.
"CLAIMS" means any and all obligations, liabilities, losses, actions,
suits, judgments, penalties, fines, claims, demands, settlements, fees, costs
and expenses (including reasonable legal fees and expenses) of any nature
whatsoever.
"CLOSING DATE" is defined in SECTION 4.1 of the Lease.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute thereto.
"COLLATERAL" is defined in SECTION 2 of the Intercreditor Agreement.
"COLLATERAL ACCOUNT" has the meaning assigned to such term in the
Intercreditor Agreement.
"COLLATERAL AGENT" means The Bank of Nova Scotia, in its capacity as
collateral agent under the Intercreditor Agreement.
"COMMITMENT" means, with respect to a Lender, the obligation of such
Lender to make Loans to the Lessor pursuant to the Credit Agreement.
"COMMITMENT FEE" is defined in SECTION 7.4 of the Lease.
"CONDEMNATION" means any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, access, occupancy, easement rights
or title to any Leased Asset 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 such Property so as to result in 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. A
"CONDEMNATION" shall be deemed to have occurred on the earliest of the dates
that use, occupancy or title vests in the condemning authority.
"CONSOLIDATED EBITDA" means for any Person and any period, the sum
(without duplication), determined on a consolidated basis for such Person and
its Subsidiaries, of (a) net income for such period PLUS (b) to the extent
deducted in determining net income for such period, the sum of (i) depreciation
and amortization (including deferred financing costs, organization costs,
goodwill and non-compete
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amortization) for such period, (ii) other non-cash expenses for such period,
(iii) Interest Expense for such period, (iv) provision for income taxes for such
period, (v) extraordinary, unusual or non-recurring charges or other items
(including, without limitation, losses arising from any natural disasters) for
such period determined in accordance with GAAP, (vi) non-compete expenses for
such period to the extent not capitalized in accordance with GAAP and (vii)
losses on sales of fixed assets not in the ordinary course of business for such
period after giving effect to any related charges for, reductions of or
provisions for taxes thereon minus (c) to the extent included in the calculation
of net income for such period, the sum of (i) other income (including interest
income) for such period, (ii) extraordinary, unusual or non-recurring gains or
other items for such period determined in accordance with GAAP, and (iii) gains
on sales of fixed assets not in the ordinary course of business for such period
after giving effect to any related charges for, reduction of or provisions for
taxes thereon.
For the purposes of calculating the ratios set forth in SECTIONS
11(a)(i), 11(a)(ii), 11(a)(iii) and 11(a)(vi) of the Guaranty there may, at the
Guarantor's option (such option to be consistently applied with respect to both
the Guarantor and the Lessee and each transaction), be included in Consolidated
EBITDA for any relevant period, on a PRO FORMA basis (adjusted to give effect to
expenses that will not be ongoing), the net income (and the additions and
subtractions thereto referred to above) for such period of any Person (or
assets) acquired after the commencement of such period in connection with (i)
the Pierce Merger and (ii) any Permitted Acquisition or any acquisition pursuant
to SECTION 9.14(viii)(b) of the Iron Mountain Credit Agreement (as in effect on
the date hereof without regard to any subsequent amendment, modification,
waiver, supplement or termination of such credit agreement) having Acquisition
Consideration, in the case of any such Permitted Acquisition, or an aggregate
amount of consideration paid, in the case of such acquisition pursuant to such
SECTION 9.14(viii)(b) of the Guaranty, of more than $500,000. The net income
(and the related additions and subtractions) of the Person or assets acquired
pursuant to such acquisition for such period shall be calculated by reference to
the most recent available quarterly financial statements of the acquired
business, annualized.
"CONSTRUCTION" means, with respect to each Construction Property, the
construction and installation of all Improvements on such Property contemplated
by the Plans and Specifications for such Property.
"CONSTRUCTION AGENCY AGREEMENT" means the Master Construction Agency
Agreement, dated as of May 22, 2001, between the Lessor and the Construction
Agent.
"CONSTRUCTION AGENCY AGREEMENT EVENT OF DEFAULT" is defined in SECTION
5.1 of the Construction Agency Agreement.
"CONSTRUCTION AGENCY AGREEMENT SUPPLEMENT" means, with respect to each
Construction Property, a supplement to Construction Agency Agreement
substantially in the form of EXHIBIT A to the Construction Agency Agreement duly
completed as to such Property.
"CONSTRUCTION AGENT" means Iron Mountain Records Management, Inc., a
Delaware corporation, as construction agent under the Construction Agency
Agreement.
"CONSTRUCTION DOCUMENTS" is defined in SECTION 2.4 of the Construction
Agency Agreement.
"CONSTRUCTION DOCUMENTS ASSIGNMENT" means, with respect to each
Construction Property, an assignment agreement substantially in the form of
ANNEX I to the Construction Agency Agreement, pursuant to which the Construction
Agent assigns to the Lessor all of its rights under and interest in the
Construction Documents for such Property.
"CONSTRUCTION PERIOD" means, with respect to each Construction
Property, the period from the Acquisition Date of such Construction Property to
the Lease Commencement Date applicable thereto.
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"CONSTRUCTION PERIOD GUARANTEED AMOUNT" means, with respect to any
Construction Property, at any time, an amount equal to (i) the sum of (A) 89.9%
of the sum of (x) the Lease Balance for such Property PLUS (y) all
capitalizeable Unreimbursed Property Costs for such Property PLUS (B) 10.1% of
Land Acquisition Cost for such Property MINUS (ii) all Unreimbursed Property
Costs for such Property.
"CONSTRUCTION PROPERTY" means EPC Construction Property and GC
Construction Property.
"CONTROL" means (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 policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades or business (whether or not incorporated) under
common control which, together with the Guarantor, are treated as a single
employer under Section 414 of the Code.
"CREDIT AGREEMENT" means the Credit Agreement, dated as of May 22,
2001, among the Lessor, as borrower, the financial institutions parties thereto,
as lenders, and the Administrative Agent.
"CURRENCY EXCHANGE AGREEMENT" shall mean a currency exchange agreement
or similar arrangement between the Guarantor and one or more of the lenders
party to the Iron Mountain Credit Agreement.
"DEBT CREDIT EXPOSURE" means, at any time, the ratio (expressed as a
percentage) of (i) the aggregate outstanding amount of Loans to (ii) the
aggregate outstanding amount of Loans and Equity Contributions.
"DEBT CONTRIBUTION" means that amount of Fundings made by the Lessor
financed by the borrowing of Loans by the Lessor under the Credit Agreement.
"DEBT PORTION" means, with respect to any Leased Asset, an amount equal
to the portion of the Lease Balance of such Leased Asset funded by Loans. The
Administrative Agent's determination of such amount shall be conclusive, absent
manifest error.
"DEED" means each special warranty deed with respect to Land, in
conformity with Applicable Law and appropriate for recording with the applicable
Governmental Authorities, conveying fee simple title to such Land to the Lessor
subject only to Permitted Liens.
"DEFAULT" means any event or condition which, with the lapse of time or
the giving of notice, or both, would constitute an Event of Default.
"DOLLARS" and "$" mean dollars in lawful currency of the United States
of America.
"EFFECTIVE DATE" means, for purposes of the Guaranty, August 14, 2000.
"ENVIRONMENTAL AUDIT" means, with respect to any Property, a Phase One
environmental site assessment (the scope and performance of which meets or
exceeds ASTM Standard Practice E1527-93 Standard Practice for Environmental Site
Assessments: Phase One Environmental Site Assessment Process) of such Property.
"ENVIRONMENTAL LAW" means, whenever enacted or promulgated, any
applicable Federal, state, county or local law, statute, ordinance, rule,
regulation, license, permit, authorization, approval, covenant, criteria,
guideline, administrative or court order, judgment, decree, injunction, code or
requirement or any agreement with a Governmental Authority:
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(a) relating to pollution (or the cleanup, removal, remediation
or encapsulation thereof, or any other response thereto), or the regulation or
protection of human health, safety or the environment, including air, water,
vapor, surface water, groundwater, drinking water, land (including surface or
subsurface), plant, aquatic and animal life, or
(b) concerning exposure to, or the use, containment, storage,
recycling, treatment, generation, discharge, emission, Release or threatened
Release, transportation, processing, handling, labeling, containment,
production, disposal or remediation of any Hazardous Substance, Hazardous
Condition or Hazardous Activity,
in each case as amended and as now or hereafter in effect, and any common law or
equitable doctrine (including injunctive relief and tort doctrines such as
negligence, nuisance, trespass and strict liability) that may impose liability
or obligations for injuries (whether personal or property) or damages due to or
threatened as a result of the presence of, exposure to, or ingestion of, any
Hazardous Substance, whether such common law or equitable doctrine is now or
hereafter recognized or developed. Applicable laws include, but are not limited
to, CERCLA; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.Section
6901 ET SEQ.; the Federal Water Pollution Control Act, 33 U.S.C.Section 1251 ET
SEQ.; the Clean Air Act, 42 U.S.C.Sections 7401 ET SEQ.; the National
Environmental Policy Act, 42 U.S.C.Section 4321; the Refuse Act, 33 U.S.C.
Sections 401 ET SEQ.; the Hazardous Materials Transportation Act of 1975, 49
U.S.C. Sections 1801-1812; the Toxic Substances Control Act, 15 U.S.C.Sections
2601 ET SEQ.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C.Sections 136 ET SEQ.; the Safe Drinking Water Act, 42 U.S.C.Sections
300f ET SEQ., each as amended and as now or hereafter in effect, and their state
and local counterparts or equivalents, including any regulations promulgated
thereunder.
"ENVIRONMENTAL VIOLATION" means any activity, occurrence or condition
that violates or results in non-compliance with any Environmental Law in any
material respect.
"EPC CONSTRUCTION CONTRACT" means, with respect to each EPC
Construction Property, the prime construction contract between the Construction
Agent and the EPC Contractor for such Property, as such contract may be amended
from time to time in accordance with the Construction Agency Agreement.
"EPC CONSTRUCTION PROPERTY" means a Property on which Improvements are
to be constructed pursuant to the Construction Agency Agreement by an EPC
Contractor acting as a general contractor.
"EPC CONTRACTOR" means, with respect to each EPC Construction Property,
the contractor designated as such in each EPC Construction Contract for such
Property or such other Person (other than the Construction Agent) who shall,
with the prior consent of the Lessor, have been designated by the Lessee to act
as the general contractor for purposes of the Construction of the Improvements
to such Property.
"EQUIPMENT" means equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased, leased or
otherwise acquired by the Lessee using the proceeds of Fundings and now or
subsequently attached to, contained in or used or usable in any way in
connection with any operation or letting of a Property, including but without
limiting the generality of the foregoing, all screens, awnings, shades, blinds,
curtains, draperies, carpets, rugs, storm doors and windows, heating,
electrical, and mechanical equipment, lighting, switchboards, plumbing,
ventilation, air conditioning and air-cooling apparatus, refrigerating, and
incinerating equipment, escalators, elevators, cleaning systems (including
window cleaning apparatus), sprinkler systems and other fire prevention and
extinguishing apparatus and materials, security systems, motors, engines,
machinery, pipes, pumps, tanks, conduits, fittings and fixtures of every kind
and description.
"EQUITY COMMITMENT" is defined in SECTION 1.1 of the Trust Agreement.
"EQUITY CONTRIBUTION" is defined in SECTION 1.1 the Trust Agreement.
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"EQUITY CREDIT EXPOSURE" means, at any time, the ratio (expressed as a
percentage) of (i) the aggregate outstanding amount of Equity Contributions to
(ii) the aggregate outstanding amount of Loans and Equity Contributions.
"EQUITY MARGIN" is set forth and determined in accordance with APPENDIX
2 to the Lease.
"EQUITY PARTICIPANT" means each holder from time to time of a Trust
Certificate pursuant to the Trust Agreement.
"EQUITY PORTION" means, with respect to any Leased Asset, an amount
equal to the portion of the Lease Balance of such Leased Asset funded by Equity
Contributions. The Administrative Agent's determination of such amount shall be
conclusive, absent manifest error.
"EQUITY RATE" means, (i) with respect to each Interest Period
commencing on a date other than a Monthly Date, the Alternate Base Rate plus the
Equity Margin, and (ii) with respect to each Interest Period commencing on a
Monthly Date, the Eurodollar Rate for such Interest Period plus the Equity
Margin and, to the extent that the Eurodollar Rate is unavailable for any reason
during such Interest Period, the Alternate Base Rate plus the Equity Margin.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor Federal statute.
"ERISA GROUP" means the Guarantor and all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Guarantor, are treated as a single
employer under Section 414 of the Code.
"ESTIMATED IMPROVEMENT COSTS" means, with respect to any Construction
Property as of any date, an amount equal to the aggregate amount which the
Construction Agent in good faith expects as of such date to be expended in order
to achieve Substantial Completion with respect to the Improvements to be
constructed on such Property (including (i) Capitalized Interest and Capitalized
Commitment Fees and (ii) Transaction Expenses, in each case allocated with
respect to such Property during its Construction Period).
"EUROCURRENCY RESERVE REQUIREMENTS" means, for any day, the aggregate
(without duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of the Board
or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"EURODOLLAR RATE" means, with respect to each Interest Period, the rate
for deposits in Dollars for a period equal to such Interest Period which appears
on the Telerate Page 3750 as of 11:00 a.m., London time, on the day that is two
(2) Business Days preceding the first day of such Interest Period. If such rate
does not appear on the Telerate Page 3750, the rate for that Interest Period
will be determined by the Administrative Agent on the basis of the rates at
which deposits in Dollars are offered by the Reference Banks at approximately
11:00 a.m., London time, on the day that is two (2) Business Days preceding the
first day of such Interest Period to prime banks in the London interbank market
for a period equal to such Interest Period. The Administrative Agent will
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two (2) such quotations are provided, the
rate for that Interest Period will be the arithmetic mean of the quotations. If
fewer than two (2) quotations are provided as requested, the rate for that
Interest Period will be the arithmetic mean of the rates quoted by major banks
in New York City, selected by the Administrative Agent, at approximately 11:00
a.m., New York City time, on the first day of that Interest Period for loans in
Dollars to leading European banks for a period equal to such Interest Period
commencing on the first day of that Interest Period. For
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the purposes hereof, "REFERENCE BANKS" means four (4) major banks in the London
interbank market selected by the Administration Agent.
"EURODOLLAR TRANCHE" means a portion of a Lease Balance funded by a
Debt Contribution made with reference to the Eurodollar Rate.
"EVENT OF DEFAULT" is defined in SECTION 20.1 of the Lease.
"EXCESS PROCEEDS" means, with respect to any Leased Asset, the excess,
if any, of the aggregate of all awards, compensation or insurance proceeds
payable in connection with a Casualty or Condemnation over the sum of the Lease
Balance paid by the Lessee pursuant to ARTICLES XVIII and XIX of the Lease with
respect to such Casualty or Condemnation and all proceeds received by the Lessor
in connection with any sale of such Leased Asset pursuant to the Lessor's
exercise of remedies under SECTION 20.2 of the Lease or the Lessee's exercise of
the Remarketing Option under ARTICLE XXIV of the Lease.
"EXCHANGE DATE" is defined in SECTION 26.2 of the Lease.
"EXCLUDED SUBSIDIARY" means any Subsidiary of the Guarantor principally
engaged in the records and information management business or related activities
organized outside of the United States of America.
"EXPIRATION DATE" means November 22, 2007; PROVIDED that if a Leased
Asset is purchased pursuant to SECTION 22.1 or 22.2 of the Lease or the Lease
Balance therefor is paid pursuant to SECTION 20.2 of the Lease, then the
Expiration Date for such Leased Asset shall be the date of such purchase or
payment, as the case may be.
"EXTENSION OPTION" means the Construction Agent's or the Lessee's
extension of the Outside Completion Date with respect to any Leased Asset due to
a delay caused by a Force Majeure Event with respect to such Leased Asset (which
extension may be exercised one or more times); PROVIDED that Construction Agent
or the Lessee shall have delivered a written notice to the Lessor at least ten
(10) days prior to the existing Outside Completion Date with respect to such
Leased Asset, which notice shall:
(i) certify that (A)(1) a delay caused by a Force Majeure
Event with respect to such Leased Asset has occurred and describe the
nature thereof and (2) such delay caused by a Force Majeure Event with
respect to such Leased Asset will prevent Substantial Completion with
respect to such Leased Asset from occurring on or prior to the existing
Outside Completion Date with respect to such Leased Asset, and (B) no
Construction Agency Agreement Event of Default (other than a
Construction Agency Agreement Event of Default which has occurred
solely as a result of the failure of Substantial Completion to have
occurred with respect to such Leased Asset on or prior to such date due
to the delay caused by a Force Majeure Event with respect to such
Leased Asset) has occurred and is continuing, which certifications
shall be true; and
(ii) designate the date to which the existing Outside
Completion Date with respect to such Leased Asset is to be extended,
which extension shall be no longer than the time period reasonably
necessary to remedy the event giving rise to the delay caused by a
Force Majeure Event with respect to such Leased Asset.
In the event that such notice shall comply with the conditions and requirements
set forth in clauses (i) and (ii) above, and subject to the further requirements
that no Construction Agency Agreement Event of Default (other than a
Construction Agency Agreement Event of Default which has occurred solely as a
result of the failure of Substantial Completion to have occurred with respect to
such Leased Asset on or prior to such date due to the delay caused by a Force
Majeure Event with respect to such Leased Asset) shall have occurred and be
continuing on the existing Outside Completion Date with respect to such
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Leased Asset, the Outside Completion Date with respect to such Leased Asset
shall, on the existing Outside Completion Date with respect to such Leased
Asset, be extended to the date set forth in Construction Agent's or Lessee's
notice.
"FACILITY" means any facility, or part of a facility (including,
without limitation, related office buildings, parking lots or other related real
property), now or hereafter owned by the Guarantor or any of its Subsidiaries,
in each case including, without limitation, the land on which such facility is
located, all buildings and other improvements thereon, including leasehold
improvements, all fixtures, furniture, equipment, inventory and other tangible
personal property located in or used in connection with such facility and all
accounts receivable and other intangible personal property (other than motor
vehicles) related to the ownership, lease or operation of such facility, all
whether now existing or hereafter acquired.
"FAIR MARKET SALES VALUE" means, with respect to any Leased Asset or
any portion thereof, the amounts, which in any event shall not be less than
zero, that would be paid in cash in an arm's-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, for the
ownership of such Leased Asset or portion. The Fair Market Sales Value of the
Leased Assets shall be determined based on the assumption that, except for
purposes of ARTICLE XX of the Lease, the Leased Assets are in the condition and
state of repair required under SECTION 13.1 of the Lease and the Lessee is in
compliance with the other requirements of the Operative Documents.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of quotations for such day on such transaction received by the
Administrative Agent from three (3) Federal funds brokers of recognized standing
selected by it.
"FEE LETTER" means the Administrative Agent Fee Letter and the Trustee
Fee Letter.
"FIXED CHARGES" means for any period the sum of (i) Scheduled
Amortization for such period plus (ii) Interest Expense for such period plus
(iii) 50% of the total Capital Expenditures (total Capital Expenditures being
calculated for this purpose to exclude replacement Capital Expenditures made
with the proceeds of insurance) for such period plus (iv) the aggregate amount
of non-compete expenses for such period to the extent not capitalized in
accordance with GAAP.
"FIXTURES" means all fixtures relating to any Improvements, including
all components thereof, located in or on such Improvements, together with all
replacements, modifications, alterations and additions thereto.
"FORCE MAJEURE EVENT" means any event (the existence of which was not
known and could not have been discovered through the exercise of due diligence
by the Construction Agent prior to the relevant Acquisition Date) 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, government activities, civil commotion
and enemy action; but excluding any event, cause or condition that results from
the Construction Agent's financial condition or failure to pay or any event,
cause or condition which could have been avoided or which could be remedied
through the exercise of commercially reasonable efforts or the commercially
reasonable expenditure of funds.
"FOREIGN SUBSIDIARY BORROWER" has the meaning assigned to such term in
the Iron Mountain Credit Agreement, as in effect on the date hereof without
regard to any subsequent amendment, modification, waiver, supplement or
termination of such credit agreement.
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"FUNDED INDEBTEDNESS" means, without duplication, (a) Indebtedness
(other than in respect of Synthetic Lease Obligations) that matures or otherwise
becomes due more than one year after the incurrence thereof or is extendible,
renewable or refundable, at the option of the obligor, to a date more than one
year after the incurrence thereof (including the current portion thereof), (b)
Indebtedness outstanding under the Iron Mountain Credit Agreement and (c)
Synthetic Lease Obligations and any Guarantees by the Guarantor thereof.
"FUNDING" means an advance of funds made or deemed made by the Lessor
pursuant to ARTICLE III of the Lease.
"FUNDING DATE" is defined in SECTION 3.2(a) of the Lease.
"FUNDING REQUEST" means: (i) in the case of a proposed funding to be
made on the Acquisition Date with respect to a Property, an Acquisition Funding
Request, (ii) in the case of a proposed funding to be made after the Acquisition
Date with respect to a Property but prior to Substantial Completion with respect
to such Property, an Interim Funding Request, and (iii) in the case of a
proposed funding to be made in connection with Substantial Completion with
respect to a Property, a Substantial Completion Funding Request.
"GAAP" means United States generally accepted accounting principles
(including principles of consolidation), in effect from time to time.
"GC CONSTRUCTION CONTRACT" means, with respect to each GC Construction
Property, each contract between the Construction Agent, as general contractor
for such GC Construction Property, and one or more subcontractors for such
Property, as such contract may be amended from time to time in accordance with
the Construction Agency Agreement.
"GC CONSTRUCTION PROPERTY" means a Property on which Improvements are
to be constructed pursuant to the Construction Agency Agreement by the
Construction Agent acting as general contractor.
"GOVERNMENTAL ACTION" means 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 Applicable Law, and shall include, without limitation, all
environmental and operating permits and licenses that are required for the full
use, occupancy, zoning and operation of any Property.
"GOVERNMENTAL AUTHORITY" means 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.
"GROSS PROCEEDS" means, with respect to any Leased Asset, (i) all
amounts paid in connection with any Casualty or Condemnation or any sale of such
Leased Asset pursuant to Lessor's exercise of remedies under SECTION 20.2 of the
Lease or the Lessee's exercise of the Remarketing Option under ARTICLE XXIV of
the Lease less (ii) the expense of claiming and collecting such amounts,
including all costs and expenses in connection therewith for which the Lessor is
entitled to be reimbursed pursuant to the Lease.
"GROUND LEASE" means each mortgageable ground lease, in form and
substance satisfactory to the Lessor and the Administrative Agent, pursuant to
which the Lessor acquires a leasehold interest in any Land.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness
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(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise, other than agreements
to purchase goods at an arm's length price in the ordinary course of business)
or (ii) entered into for the purpose of assuring in any other manner the holder
of such Indebtedness of the payment thereof or to protect such holder against
loss in respect thereof (in whole or in part), PROVIDED that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary course
of business.
"GUARANTEED OBLIGATIONS" has the meaning assigned to such term in
SECTION 1 of the Guaranty.
"GUARANTEED RESIDUAL VALUE" means the guaranteed portion of the Lease
Balance determined by the Administrative Agent (with the consent of the Lessee's
accountants) in accordance with the "90%" test set forth in FASB No. 13 which,
with respect to each Leased Asset, is set forth in, or determined pursuant to,
the Lease Supplement therefor.
"GUARANTOR" means Iron Mountain Incorporated, a Pennsylvania
corporation.
"GUARANTOR PLEDGE AGREEMENT" means the pledge agreement, dated as of
February 1, 2000, between the Guarantor and the IM Administrative Agent, as in
effect on the date hereof without regard to any subsequent amendment,
modification, waiver, supplement or termination of such pledge agreement.
"GUARANTY" means the Unconditional Guaranty, dated as of May 22, 2001,
from the Guarantor to the Lessor.
"HAZARDOUS ACTIVITY" means any activity, process, procedure or
undertaking that directly or indirectly (i) produces, generates or creates any
Hazardous Substance; (ii) causes or results in (or threatens to cause or result
in) the Release of any Hazardous Substance into the environment (including air,
water vapor, surface water, groundwater, drinking water, land (including surface
or subsurface), plant, aquatic and animal life); (iii) involves the containment
or storage of any Hazardous Substance; or (iv) would be regulated as hazardous
waste treatment, storage or disposal within the meaning of any Environmental
Law.
"HAZARDOUS CONDITION" means any condition that materially violates or
threatens to materially violate, or that results in or threatens material
noncompliance with, any Environmental Law.
"HAZARDOUS SUBSTANCE" means any of the following: (i) any petroleum or
petroleum product, explosives, radioactive materials, asbestos,
ureaformaldehyde, polychlorinated biphenyls, 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 defined
under 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.
"HEDGING AGREEMENT" shall mean any Interest Rate Agreement, Currency
Exchange Agreement or security agreement between the Guarantor and one or more
of the lenders party to the Iron Mountain Credit Agreement or between the
Guarantor and one or more financial institutions other than such a lender as
approved by the agent for the lenders under the Iron Mountain Credit Agreement.
"IM ADMINISTRATIVE AGENT" means "Administrative Agent" as such term is
defined in the Iron Mountain Credit Agreement.
"IM LENDERS" means "Lenders" as such term is defined in the Iron
Mountain Credit Agreement.
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"IM LOANS" means "Loans" as such term is defined in the Iron Mountain
Credit Agreement.
"IMPOSITIONS" means any and all Claims for Taxes which at any time may
be levied, assessed or imposed upon or with respect to (a) any Indemnitee by
reason of a Leased Asset or the transactions contemplated by the Operative
Documents, any Leased Asset or any part thereof or interest therein, or the
Lessee or any sublessee or user of any Leased Asset by reason of such sublease
or use; (b) the financing, refinancing, demolition, construction, substitution,
subleasing, assignment, control, condition, occupancy, servicing, maintenance,
repair, ownership, possession, purchase, rental, lease, activity conducted on,
delivery, insuring, use, operation, improvement, transfer, return or other
disposition of such Leased Asset or any part thereof or interest therein; (c)
indebtedness with respect to any Leased Asset or any part thereof or interest
therein or transfer thereof; (d) the rentals, receipts or earnings arising from
any Leased Asset or any part thereof or interest therein; (e) the Operative
Documents or any payment made or accrued pursuant thereto; (f) the income or
other proceeds received with respect to any Leased Asset or any part thereof or
interest therein upon the sale or disposition thereof; (g) any contract relating
to the construction, acquisition or delivery of the Improvements or any part
thereof or interest therein; or (h) otherwise in connection with the
transactions contemplated by the Operative Documents.
Notwithstanding anything in the first paragraph of this definition
(except as provided in the final paragraph of this definition) the term
"IMPOSITION" shall not mean or include claims for:
(i) Taxes (other than Taxes that are, or are in the nature
of, sales, use, rental, transfer or property taxes) that are imposed
under (A) the Code and that are based upon or measured by net income,
net worth or capital franchise and (B) by any state or local
jurisdiction or taxing authority and that are based upon or measured by
net income, net worth or capital franchise, except that this clause (B)
shall not apply to (and thus shall not exclude) any such Tax imposed on
any Indemnitee by a state (or any local taxing authority thereof or
therein) where a Leased Asset is located, possessed or used under the
Lease unless such Indemnitee was subject to such Tax in such
jurisdiction without regard to the transaction contemplated by the
Operative Documents;
(ii) any Tax to the extent, but only to such extent, it relates to any
act, event or omission that occurs, or relates to a period, after the
termination of the Lease and the return of the Leased Assets (but not any Tax or
imposition that relates to any period prior to the termination of the Lease with
respect to the Leased Asset to which such Imposition relates);
(iii) any Tax for so long as, but only for so long as, it is being
contested in accordance with the provisions of SECTION 16.1 or 27.4 of the
Lease, PROVIDED that the foregoing shall not limit the Lessee's obligation to
advance to the relevant Indemnitee any expenses incurred by such Indemnitee in
connection with such contest;
(iv) any Taxes imposed against or payable by an Indemnitee resulting
from, or that would not have been imposed but for, the gross negligence or
willful misconduct of such Indemnitee;
(v) Taxes imposed on or payable by an Indemnitee to the extent such
Taxes would not have been imposed but for a breach by such Indemnitee or any
Affiliate thereof of any representations, warranties or covenants set forth in
the Operative Documents (unless such breach is caused by the Lessee's breach of
its representations, warranties or covenants set forth in the Operative
Documents);
(vi) Taxes which are included in Property Acquisition Cost, Land
Acquisition Cost or Property Improvements Cost;
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(vii) Taxes that would have been imposed in the absence of the
transactions contemplated by the Operative Documents and Taxes imposed on or
with respect to or payable as a result of activities of an Indemnitee or
Affiliate thereof unrelated to the transactions contemplated by the Operative
Documents;
(viii) any Taxes imposed upon an Indemnitee with respect to any sale,
assignment, transfer or other disposition of any interest in an Indemnitee or
any Affiliate thereof;
(ix) Taxes to the extent resulting from such Indemnitee's failure to
comply with the provisions of SECTION 27.4 of the Lease, which failure precludes
or materially adversely affects the Lessee's ability to conduct a contest
pursuant to SECTION 27.4 of the Lease (unless such failure is caused by the
Lessee's breach of its obligations);
(x) Taxes imposed on or with respect to or payable by an Indemnitee
resulting from, or that would not have been imposed but for the existence of,
any Lessor Lien created by or through such Indemnitee or an Affiliate thereof
and not caused by acts or omissions of the Lessee, unless required to be removed
by the Lessee; and
(xi) Any Tax imposed against or payable by an Indemnitee to the extent
that the amount of such Tax exceeds the amount of such Tax that would have been
imposed against or payable by such Indemnitee (or, if less, that would have been
subject to indemnification under SECTION 27.3 of the Lease) if such Indemnitee
were not a direct or indirect successor, transferee or assign of one of the
original Indemnitees; PROVIDED, HOWEVER, that this EXCLUSION (xi) shall not
apply if such direct or indirect successor, transferee or assign acquired its
interest with the consent of the Lessee or as a result of a transfer while an
Event of Default shall have occurred and is continuing.
Notwithstanding the foregoing, the exclusion from the definition of
Impositions set forth in CLAUSE (i) above shall not apply to any Taxes or any
increase in Taxes (in either case, measured net of any Tax savings or reductions
which an Indemnitee is able, through the use of reasonable mitigation efforts,
actually to realize) imposed on an Indemnitee, to the extent that such Taxes
would not have been imposed or such Tax increase would not have occurred if the
Lessee were the owner of the Leased Assets and the Lessor or the Lenders and the
Equity Participants had financed the Leased Assets by making loans directly to
the Lessee.
"IMPROVEMENTS" means, with respect to each Property, all buildings,
structures, Fixtures, Equipment, and other improvements of every kind existing
at any time and from time to time (including those constructed pursuant to the
Construction Agency Agreement and those purchased with amounts advanced by the
Lessor pursuant to the Lease) on or under the Land comprising a part of such
Property, 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 thereto
or changes therein at any time.
"IMPUTED CARRYING COST" means, with respect to any Leased Asset, the
cost to the Lessor of maintaining its investment in such Leased Asset after the
Expiration Date determined by multiplying (i) the average daily Lease Balance of
such Leased Asset outstanding (after giving effect to the receipt of the
Guaranteed Residual Value therefor), (ii) the number of days from the Expiration
Date to the date of sale of such Leased Asset, (iii) the Overdue Rate and (iv)
1/360.
"INDEBTEDNESS" means, as to any Person (determined without
duplication):
(i) indebtedness of such Person for borrowed money
(whether by loan or the issuance and sale of debt securities) or for
the deferred purchase or acquisition price of property
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or services (including amounts payable under agreements not to compete
and other similar arrangements), other than accounts payable (other
than for borrowed money) incurred in the ordinary course of business
and accrued expenses incurred in the ordinary course of business;
(ii) obligations of such Person in respect of letters of
credit or similar instruments issued or accepted by banks and other
financial institutions for the account of such Person;
iii) Capital Lease Obligations and Synthetic Lease
Obligations of such Person;
(iv) obligations of such Person to redeem or otherwise
retire shares of capital stock of such Person;
(v) for purposes of SECTION 20.1(f) of the Lease only,
indebtedness of such Person under any Hedging Agreement;
(vi) indebtedness of others of the type described in
CLAUSES (i) through (v) above secured by a Lien on the property of such
Person, whether or not the respective obligation so secured has been
assumed by such Person;
vii) indebtedness of others of the type described in
CLAUSE (i) through (v) above Guaranteed by such Person; and
(viii) Accounts Receivable Financings and Permitted
Mortgage Financings of such Person.
Notwithstanding anything to the contrary contained in CLAUSE (i) of the
preceding sentence, indebtedness of any Person in respect of amounts payable
under an agreement not to compete shall be the amount carried on the balance
sheet of such Person in respect of such agreement in accordance with GAAP.
"INDEMNITEE" means the Lessor, the Trustee, the Administrative Agent,
the Collateral Agent, each Lender, each Equity Participant, and each of their
respective successors, assigns, directors, shareholders, partners, members,
officers, employees and agents; PROVIDED, HOWEVER, that with respect to any
Claim for any Construction Property arising during the Construction Period for
such Property (i) except as provided in clause (ii) below, the term Indemnitee
shall not include the Administrative Agent, the Collateral Agent, the Trustee,
any Lender or any Equity Participant (or their respective successors, assigns,
directors, shareholders, partners, members, officers, employees and agents) for
purposes of SECTIONS 27.1, 27.2 and 27.3 of the Lease but (ii) the term
Indemnitee shall include such Persons for purposes of SECTION 27.2 of the Lease
if such Claim arises from acts or omissions occurring, or circumstances or
conditions created or existing, at any time on or before the Acquisition Date
for such Property.
"INSURANCE REQUIREMENTS" means all terms and conditions of any
insurance policy either required by the Lease to be maintained by the Lessee or
required by the Construction Agency Agreement to be maintained by the
Construction Agent, and all requirements of the issuer of any such policy.
"INTERCREDITOR AGREEMENT" means the Security and Intercreditor
Agreement, dated as of May 22, 2001, between the Lessor and the Collateral
Agent.
"INTEREST EXPENSE" means, for any Person and any period, the sum
(determined without duplication) of the aggregate amount of interest accruing
during such period on Indebtedness of such Person and, for purposes of
determining Consolidated EBITDA only, its Subsidiaries (on a consolidated
basis), including the interest portion of rental or similar payments under
Capital Lease Obligations and Synthetic Leases and any capitalized interest, and
excluding amortization of debt discount and expense and interest paid in kind.
"INTEREST PERIOD" means:
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(i) with respect to any Funding made on a date other than
a Monthly Date, initially, the period commencing on the Funding Date
with respect to such Funding and ending on the next following Monthly
Date,
(ii) with respect to any Funding made, or that has an
Interest Period ending, on a Monthly Date that is not also a Scheduled
Payment Date, initially the period commencing on such Monthly Date and
ending on the next Scheduled Payment Date, and
(iii) with respect to any Funding made, or that has an
Interest Period ending, on a Scheduled Payment Date, each period
commencing on such Scheduled Payment Date and ending on the next
following Scheduled Payment Date.
"INTEREST RATE AGREEMENT" shall mean (i) an interest rate swap
agreement, interest rate cap agreement or similar arrangement between the
Guarantor and one or more of the lenders party to the Iron Mountain Credit
Agreement or (ii) an interest rate swap agreement, interest rate cap agreement
or similar arrangement between the Guarantor and one or more financial
institutions (other than such a lender) approved by the agent for the lenders
under the Iron Mountain Credit Agreement pursuant to which the Guarantor is not
required in the absence of default to make any payments other than initial fees.
"INTERIM FUNDING REQUEST" means a funding request substantially in the
form of EXHIBIT A-2 to the Lease.
"INTERIM LEASE TERM" means, with respect to each Leased Asset, the
period commencing on the Lease Commencement Date for such Leased Asset and
ending on the Base Date; PROVIDED, HOWEVER, that if the Lease Commencement Date
for any Construction Property is on or after the Base Date, then there shall be
no Interim Lease Term for such Property.
"INVOLUNTARY CHANGE OF CONTROL" means an event described in CLAUSE (a)
or (b) of the definition of Change of Control in the Iron Mountain Credit
Agreement (as in effect on the date hereof without regard to any subsequent
amendment, modification, waiver, supplement or termination of such credit
agreement) and the Guarantor or its Board of Directors shall not have caused,
consented to or failed to exercise rights available to it to prevent, such
event.
"INVOLUNTARY CHANGE OF CONTROL DATE" means the date on which an
Involuntary Change of Control occurs.
"IRON MOUNTAIN CREDIT AGREEMENT" means the Fourth Amended and Restated
Credit Agreement dated as of August 14, 2000, among the Guarantor, Iron Mountain
Canada Corporation, the lenders from time to time parties thereto, Fleet
National Bank, Chase Securities Inc., The Chase Manhattan Bank of Canada, as
agent, and The Chase Manhattan Bank, as agent, as amended, amended and restated,
modified, extended, refinanced or supplemented from time to time (except as
otherwise specified in any Operative Document).
"LAND" means each parcel of real property described on a Lease
Supplement executed and delivered under the Lease and all Appurtenant Rights
attached thereto.
"LAND ACQUISITION COST" means, with respect to any Construction
Property, the amount of any Funding made for the purpose of acquiring title to,
or a leasehold interest in, the Land comprising a part of such Property and
paying Transaction Expenses relating to such acquisition.
"LEASE" means the Master Lease and Security Agreement, dated as of May
22, 2001, between the Lessor and the Lessee.
"LEASE BALANCE" means, with respect to each Leased Asset, as of any
date of determination, the sum of all Fundings for such Leased Asset made or
deemed made under the Lease on or before such date,
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LESS the sum of (i) all Quarterly Amortization paid by the Lessee with respect
thereto on or before such date and (ii) all proceeds of any casualty or
condemnation affecting such Leased Asset and all other amounts which have been
applied to reduce the Lease Balance for such Leased Asset pursuant to the Lease
or the Construction Agency Agreement; PROVIDED, HOWEVER, that if the Lessor
elects to complete the Construction of the Improvements on any Construction
Property pursuant to SECTION 5.4(b) of the Construction Agency Agreement, then
the Lease Balance for such Property shall be increased to include all amounts
expended by the Lessor for such purpose (and all capitalizable costs and
expenses related thereto); PROVIDED, FURTHER, that if the Lease Balance as so
increased exceeds the Maximum Lease Balance for such Property, then for the
purpose of determining the Guaranteed Residual Value and the Base Rent payable
for such Property (but not for any other purpose) the Lease Balance of such
Property shall be deemed to be equal to the Maximum Lease Balance for such
Property, and the Quarterly Amortization for such Property shall be calculated
so as to amortize such Lease Balance during the Lease Term applicable thereto to
the lesser of such Maximum Lease Balance or the appraised Fair Market Sales
Value of such Property on the Expiration Date.
"LEASE COMMENCEMENT DATE" means (i) with respect to any Property other
than a Construction Property, the Acquisition Date of such Property and (ii)
with respect to any Construction Property, the first Monthly Date occurring on
or after the date on which such Property achieves Substantial Completion.
"LEASE SUPPLEMENT" means, with respect to each Leased Asset, a lease
supplement substantially in the form of EXHIBIT D-1 or D-2 to the Lease duly
completed as to such Leased Asset.
"LEASE TERM" means the Interim Lease Term and the Base Lease Term.
"LEASED ASSET" means each Property acquired by the Lessor pursuant to
the Lease.
"LENDER" has the meaning given to that term in the Credit Agreement.
"LENDER APPLICABLE MARGIN" is set forth and determined in accordance
with APPENDIX 2 to the Lease.
"LENDER NOTE" has the meaning given to that term in the Credit
Agreement.
"LESSEE" means Iron Mountain Records Management, Inc., a Delaware
corporation, as lessee under the Lease.
"LESSEE'S CONSENT" means the Lessee's Consent to Security Agreement,
dated as of May 22, 2001, among the Lessee, the Collateral Agent and the Lessor.
"LESSOR" means Iron Mountain Statutory Trust - 2001, a Connecticut
statutory trust.
"LESSOR INTEREST RATE HEDGE" means an ISDA Master Agreement (including
any schedule thereto and confirmation thereunder), in form and substance
satisfactory to the Administrative Agent, between the Lessor and the Swap
Counterparty pursuant to which the Lessor hedges the interest rate risk relating
to the Loans and its equity contributions.
"LESSOR LIEN" means any Lien, true lease or sublease or disposition of
title arising as a result of (a) any claim against the Lessor not resulting from
the transactions contemplated by the Operative Documents, (b) any act or
omission of the Lessor which is not required by the Operative Documents or is in
violation of any of the terms of the Operative Documents, (c) any claim against
the Lessor with respect to Taxes or Transaction Expenses against which Lessee is
not required to indemnify Lessor pursuant to the Lease or (d) any claim against
the Lessor arising out of any transfer by the Lessor of all or any portion of
its interest in any Leased Asset or the Operative Documents other than the
transfer of title to or
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possession of any Property by the Lessor pursuant to and in accordance with the
Operative Documents or pursuant to the exercise of the remedies set forth in the
Operative Documents.
"LEVERAGE RATIO" has the meaning assigned to such term in SECTION 11 of
the Guaranty.
"LIEN" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, easement, servitude or charge of any kind, including any
irrevocable license, conditional sale or other title retention agreement, any
lease in the nature thereof, or any other right of or arrangement with any
creditor to have its claim satisfied out of any specified property or asset with
the proceeds therefrom prior to the satisfaction of the claims of the general
creditors of the owner thereof, whether or not filed or recorded, or the filing
of, or agreement to execute as "debtor", any financing or continuation statement
under the Uniform Commercial Code of any jurisdiction or any federal, state or
local lien imposed pursuant to any Environmental Law. For the purposes of the
Guaranty, Guarantor and each of its Subsidiaries shall be deemed to own subject
to a Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"LIQUID INVESTMENTS" means:
(i) certificates of deposit maturing within ninety (90)
days of the acquisition thereof denominated in Dollars and issued by
(X) an IM Lender or (Y) a bank or trust company having combined capital
and surplus of at least $500,000,000 and which has (or which is a
Subsidiary of a bank holding company which has) publicly traded debt
securities rated A or higher by Standard & Poor's Ratings Services or
A-2 or higher by Moody's Investors Service, Inc.;
(ii) repurchase obligations with a term of nor more than
seven (7) days for underlying securities of the types described in
CLAUSE (i) above entered into with (x) any IM Lender or (y) any bank or
trust company meeting the qualifications specified in CLAUSE (i)(Y)
above;
(iii) obligations issued or guaranteed by the United
States of America, with maturities not more than one (1) year after the
date of issue;
(iv) commercial paper with maturities of not more than
ninety (90) days and a publishing rating of not less than A-2 and P-2
(or the equivalent rating); and
(v) investments in money market funds substantially all of
whose assets are comprised of securities and other obligations of the
types described in CLAUSES (i) through (iv) above.
"LOAN" has the meaning given to that term in the Credit Agreement.
"MARKETING PERIOD" means, if the Lessee has given notice of its
exercise of the Remarketing Option, the period commencing on the date six (6)
months prior to the Expiration Date and ending on the Expiration Date.
"MAXIMUM LEASE BALANCE" means (i) with respect to any Property other
than a Construction Property, the Property Acquisition Cost for such Property
and (ii) with respect to any Construction Property, the amount designated for
such Property in the Lease Supplement applicable thereto, which shall be an
amount (A) not less than the sum of the Land Acquisition Cost for such Property
and the Estimated Improvements Cost for such Property and (B) not more than 110%
of such sum; PROVIDED, HOWEVER, that if the final Lease Balance determined as of
the Lease Commencement Date for any Construction Property is less than the
Maximum Lease Balance for such Property, then the Maximum Lease Balance for such
Property shall be reduced to such final Lease Balance on such Lease Commencement
Date.
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"MODIFICATIONS" is defined in SECTION 14.1(a) of the Lease.
"MONTHLY DATE" means the fifteenth (15th) day of each calendar month
or, if any such day is not a Business Day, the next following day which is a
Business Day.
"MORTGAGE" means, with respect to any Property, a mortgage, deed of
trust or memorandum of lease, in form suitable for recording in the jurisdiction
in which such Property is located and reasonably satisfactory to the
Administrative Agent, sufficient to create a first priority lien on such
Property.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five (5) plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five (5) year period.
"OPERATIVE DOCUMENTS" means the following:
<Table>
(a) the Lease;
(b) the Construction Agency Agreement;
(c) the Guaranty;
(d) the Lessee's Consent;
(e) each Lease Supplement;
(f) each Construction Agency Agreement Supplement;
(g) each Deed;
(h) each Ground Lease, if any;
(i) each Mortgage given by the Lessee to the Lessor, and
each Mortgage given by the Lessor to the Collateral
Agent;
(j) the Credit Agreement;
(k) each Lender Note;
(l) the Intercreditor Agreement;
(m) each Construction Documents Assignment;
(n) the Trust Agreement;
(o) each Fee Letter;
(p) the Lessor Interest Rate Hedge; and
(q) each Funding Request.
</Table>
"OUTSIDE COMPLETION DATE" with respect to each Construction Property is
defined in the Lease Supplement therefor, unless such Outside Completion Date is
extended with respect to such Construction Property by the delivery of an
Extension Option as a result of a delay caused by a Force Majeure Event with
respect to such Construction Property, in which case the Outside Completion Date
with respect to such Construction Property shall be the date to which the
existing Outside Completion Date with respect to such Construction Property is
extended pursuant to such Extension Option.
"OVERDUE RATE" means the Alternate Base Rate plus the Lender Applicable
Margin plus 2.00%.
"PARTICIPANT" means the Lenders and the Equity Participants.
"PAYMENT DATE" means each Scheduled Payment Date and each Additional
Payment Date.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
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"PERMITTED ACQUISITION" has the meaning assigned to such term in the
Iron Mountain Credit Agreement, as in effect on the date hereof without regard
to any subsequent amendment, modification, waiver, supplement or termination of
such credit agreement.
"PERMITTED CONTEST" is defined in SECTION 16.1(a) of the Lease.
"PERMITTED INDEBTEDNESS" has the meaning assigned to such term in the
Iron Mountain Credit Agreement, as in effect on the date hereof without regard
to any subsequent amendment, modification, waiver, supplement or termination of
such credit agreement.
"PERMITTED LIENS" means, with respect to any Leased Asset:
(xii) the respective rights and interests of the parties
to the Operative Documents as provided in the Operative Documents;
(xiii) the rights of any sublessee or assignee under a sublease or an
assignment expressly permitted by the terms of the Lease;
(xiv) Liens for Taxes that either are not yet payable or are being
contested in accordance with the provisions of SECTION 16.1 of the Lease;
(xv) Liens arising by operation of law, and materialmen's, mechanics',
workers', 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 sixty (60) days past due or are being contested in
accordance with the provisions of SECTION 16.1 of the Lease;
(xvi) 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 have been made), which
bonding (or arrangements) shall comply with applicable Requirements of Law, and
has (or have) effectively stayed any execution or enforcement of such Liens;
(xvii) 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 to contest set forth in
SECTION 16.1 of the Lease;
(xviii) easements, rights of way and other encumbrances on title to
real property arising in accordance with the provisions of SECTION 15.2 of the
Lease;
(xix) Lessor Liens;
(xx) Liens created by the Lessee with the consent of the Lessor; and
(xxi) Liens described on each title insurance policy delivered pursuant
to the Lease and agreed to by the Lessor.
"PERMITTED MORTGAGE" has the meaning assigned to such term in the Iron
Mountain Credit Agreement, as in effect on the date hereof without regard to any
subsequent amendment, modification, waiver, supplement or termination of such
credit agreement.
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"PERMITTED MORTGAGE FINANCING" means any financing (or series of
related financings) by the Guarantor or any of its Subsidiaries after the
Effective Date that is secured by a mortgage on one or more Facilities; PROVIDED
that (a) the proceeds of such financing (except to the extent that Permitted
Mortgage Financings of Facilities acquired after the Effective Date are excluded
by the definition of "Net Cash Proceeds" defined in the Iron Mountain Credit
Agreement as in effect on date hereof without regard to any subsequent
amendment, modification, waiver, supplement or termination of such credit
agreement) are applied to the prepayment of IM Loans as provided in Section
3.02(b) of the Iron Mountain Credit Agreement as in effect on the date hereof
without regard to any subsequent amendment, modification, waiver, supplement or
termination of such credit agreement, (b) such financings are otherwise
permitted by the terms of Section 9.08 of the Iron Mountain Credit Agreement as
in effect on the date hereof without regard to any subsequent amendment,
modification, waiver, supplement or termination of such credit agreement and (c)
in the case of each such mortgage financing by a Subsidiary of the Guarantor,
each such mortgage created thereby is a Permitted Mortgage.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental authority, limited liability company or any other entity.
"PIERCE MERGER" means the merger on February 1, 2000 of Iron Mountain
Incorporated with and into the Guarantor, with the Guarantor as the surviving
corporation.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
(5) years been maintained, or contributed to, by any Person which was at such
time a member of the ERISA Group for employees of any Person which was at such
time a member of the ERISA Group.
"PLANS AND SPECIFICATIONS" means, with respect to any Construction
Property, the plans and specifications for the Construction of the Improvements
to such Property, as more particularly described in SCHEDULE 2 to the
Construction Agency Agreement Supplement for such Property, as such plans and
specifications may be amended from time to time in accordance with the
Construction Agency Agreement.
"PROPERTY" means (i) the Lessor's interest in any Land subject to the
Lease and (ii) all of the Improvements at any time located on or under such
Land.
"PROPERTY ACQUISITION COST" means, with respect to any Property other
than a Construction Property, the amount of the Funding with respect to such
Property for the purpose of acquiring title to such Property, making Tenant
Improvements with respect to such Property and paying Transaction Expenses
(including estimated future Transaction Expenses) relating to such acquisition.
"PROPERTY IMPROVEMENT COSTS" means, with respect to any Construction
Property, the aggregate amount of (i) Fundings made to the Construction Agent
for such Property for the purpose of constructing Improvements on such Property
and paying the Transaction Expenses (including estimated future Transaction
Expenses) relating to such funding and construction and (ii) Fundings made or
deemed made for such Property during the Construction Period applicable thereto
for Capitalized Interest, Capitalized Commitment Fees and other capitalizable
amounts as provided in the Construction Agency Agreement.
"PURCHASE NOTICE" is defined in SECTION 22.1 of the Lease.
"PURCHASE OPTION" is defined in SECTION 22.1 of the Lease.
"PURCHASE OPTION PRICE" is defined in SECTION 22.1 of the Lease.
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"QUARTERLY AMORTIZATION" means, with respect to any quarterly period
during the Lease Term of any Leased Asset, the amount of amortization specified
for such quarter in the Lease Supplement for such Leased Asset.
"RELEASE" means any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Substance.
"REMARKETING OPTION" is defined in SECTION 24.1 of the Lease.
"REMOVED PROPERTY" is defined in SECTION 26.1 of the Lease.
"RENT" means, collectively, the Base Rent and the Supplemental Rent, in
each case payable under the Lease.
"REQUESTING PARTY" is defined in SECTION 28.1 of the Lease.
"REQUIRED MODIFICATION" is defined in SECTION 14.1 of the Lease.
"REQUIRED PARTICIPANTS" means (i) until the Secured Obligations have
been paid in full, Participants with an aggregate Voting Percentage in excess of
50% and (ii) after the Secured Obligations have been paid in full, the Majority
Equity Participants.
"REQUIREMENTS OF LAW" means all Federal, state, county, municipal and
other governmental statutes, laws (including Environmental Laws), rules, orders,
regulations, ordinances, judgments, decrees and injunctions affecting any Leased
Asset or the demolition, construction, use or alteration thereof, whether now or
hereafter enacted and in force, including any that require repairs,
modifications or alterations in or to such Leased Asset 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 1201 ET SEQ. and any
other similar Federal, state or local laws or ordinances and the regulations
promulgated thereunder), 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 and any easements, licenses
or other agreements arising in accordance with the provisions of SECTION 15.2 of
the Lease.
"RESPONSIBLE EMPLOYEE" means, with respect to any Person, the Chairman,
the President, any Vice President, the Controller or the Treasurer of such
Person.
"SCHEDULED AMORTIZATION" means, for any period, the sum (calculated
without duplication) of all payments of principal of Indebtedness of Guarantor
(other than Indebtedness under the Iron Mountain Credit Agreement) scheduled to
be made during such period.
"SCHEDULED PAYMENT DATE" means the Monthly Date occurring in each
August, November, February and May.
"SECURED OBLIGATIONS" is defined in SECTION 3 of the Intercreditor
Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended, together
with the rules and regulations promulgated thereunder.
"SECURITY DOCUMENTS" means the collective reference to each Mortgage
and all other security documents now or hereafter delivered to the Lessor
granting a Lien on any asset or assets of any Person to secure the obligations
and liabilities of the Lessee under the Lease and the other Operative Documents.
"SIGNIFICANT CASUALTY" means (a) a Casualty that results in an
insurance settlement with respect to any Leased Asset on the basis of a total
loss or constructive total loss or (b) a Casualty that in the reasonable
judgment of the Lessor either (i) renders any Leased Asset permanently
unsuitable for use as
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property of the type contemplated by the Lease or (ii) is
such that (A) in the case of any Leased Asset for which the Lease Term has
commenced, repair of such Leased Asset to substantially its condition as existed
immediately prior to such Casualty would be impracticable or impossible to
effect on or before the Expiration Date or (B) in the case of any Leased Asset
during the Construction Period applicable thereto, completion of Construction of
such Leased Asset for an amount not exceeding the relevant Maximum Lease Balance
would be impracticable or impossible to effect on or before the relevant Outside
Completion Date.
"SIGNIFICANT CONDEMNATION" means (a) a Condemnation that involves a
taking of all or substantially all of Lessor's interest in such Leased Asset, or
(b) a Condemnation that in the reasonable judgment of the Lessor either (i)
renders any Leased Asset unsuitable for use as property of the type contemplated
by the Lease or (ii) is such that (A) in the case of any Leased Asset for which
the Lease Term has commenced, restoration of such Leased Asset (other than Land)
to substantially its condition as existed immediately prior to such Condemnation
would be impracticable or impossible to effect on or before the Expiration Date
or (B) in the case of any Leased Asset during the Construction Period applicable
thereto, completion of Construction of such Leased Asset for an amount not
exceeding the relevant Maximum Lease Balance would be impracticable or
impossible to effect on or before the relevant Outside Completion Date.
"SOLVENT" means, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
saleable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature and (d) such Person is not
engaged in business or in a transaction, and is not about to engage in business
or in a transaction, for which such Person's property would constitute
unreasonably small capital.
"STOCK CONSIDERATION" means, with respect to any Acquisition, the
aggregate amount of consideration paid by Guarantor and its Subsidiaries in
connection therewith consisting of Guarantor's common stock or with proceeds of
the issuance of Guarantor's common stock within twelve months prior to the date
of such Acquisition. For purposes hereof, the amount of Stock Consideration paid
by Guarantor in respect of any Acquisition where the Stock Consideration
consists of Guarantor's common stock shall be deemed to be equal to the fair
market value of Guarantor's common stock so paid, determined in good faith by
Guarantor at the time of such Acquisition.
"SUBSIDIARY" means, with respect to any corporation (the "parent"), a
corporation or partnership of which the parent, at the time in respect of which
such term is used, owns directly, or controls with power to vote, indirectly
through one or more Subsidiaries, shares of greater than fifty percent (50%) of
its voting capital stock.
"SUBSTANTIAL COMPLETION" means, with respect to any Property, such time
as the conditions set forth in ARTICLE V of the Lease are satisfied for such
Property.
"SUBSTANTIAL COMPLETION FUNDING REQUEST" means a funding request
substantially in the form of EXHIBIT A-3 to the Lease.
"SUBSTITUTED PROPERTY" is defined in SECTION 26.1 of the Lease.
"SUPPLEMENTAL RENT" means all amounts, liabilities and obligations
(other than Base Rent) which Lessee assumes or agrees to pay to Lessor or any
other Person under the Lease or under any of the other Operative Documents.
Supplemental Rent shall include all amounts payable by the Lessor under any
Ground Lease after the Lease Commencement Date for the relevant Leased Asset.
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"SWAP COUNTERPARTY" means The Bank of Nova Scotia, in its capacity as
provider of the Lessor Interest Rate Hedge.
"SYNTHETIC LEASE" means a lease of property or assets designed to
permit the lessee (i) to claim depreciation on such property or assets under
U.S. tax law and (ii) to treat such lease as an operating lease or not to
reflect the leased property or assets on the lessee's balance sheet under GAAP.
"SYNTHETIC LEASE OBLIGATIONS" means, with respect to any Synthetic
Lease, at any time, an amount equal to the higher of (x) the aggregate
termination value or purchase price or similar payments in the nature of
principal payable thereunder and (y) the then aggregate outstanding principal
amount of the notes or other instruments issued by, and the amount of the equity
investment, if any, in, the lessor under such Synthetic Lease.
"TAXES" means all U.S. federal, state, local or foreign taxes, levies,
fees, imposts, duties, charges, assessments or withholdings of any nature
whatsoever including, without limitation, (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, mortgage taxes,
intangible taxes, stamp taxes and documentary recording taxes and fees; (v)
taxes that are or are in the nature of franchise, income, value added, gross
receipts, privilege and doing business taxes, license and registration fees; and
(vi) assessments on any Leased Asset, including all assessments for public
improvements or benefits, whether or not such improvements are commenced or
completed prior to the Expiration Date, and in each case all interest, additions
to tax and penalties thereon.
"TENANT IMPROVEMENTS" means, with respect to any Property other than a
Construction Property, Improvements made or to be made to such Property by or on
behalf of the Lessee after the acquisition thereof by the Lessor; PROVIDED that
(i) no more than $1,000,000 of Tenant Improvements may be made with respect to
any Property and (ii) no more than $5,000,000 of Tenant Improvements may be made
with respect to all Properties.
"THRESHOLD AMOUNT" means, with respect to each Leased Asset, an amount
that is (i) equal to or greater than 10% of the Lease Balance for such Leased
Asset and (ii) greater than $500,000.
"TITLE COMPANY" means, with respect to each Property, the Person
designated in the Lease Supplement therefor.
"TOTAL COMMITMENT" means an amount equal to the sum of the Commitments
of the Lenders and the Equity Commitments of the Equity Participants.
"TRANSACTION EXPENSES" means all costs and expenses incurred in
connection with the preparation, execution and delivery of the Operative
Documents and the transactions contemplated by the Operative Documents
including:
(a) the reasonable fees, out-of-pocket expenses and
disbursements of counsel for each of the Lessor, the Collateral Agent, the
Administrative Agent, the Equity Participants, the Lessee and the Guarantor
(and, in the case of the Lessee and the Guarantor, the reasonable fees,
out-of-pocket expenses and disbursements of independent public accountants) in
negotiating the terms of the Operative Documents and the other transaction
documents, preparing for the closing 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 Documents; PROVIDED that such fees, expenses and
disbursements of counsel shall be limited to one law firm acting on behalf of
the Collateral Agent and the Administrative Agent and one law firm acting on
behalf of the Equity Participants;
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(b) the reasonable fees, out-of-pocket expenses and
disbursements of counsel for the Lessor, the Collateral Agent, the
Administrative Agent, the Equity Participants and the Lenders in connection with
(1) any amendment, supplement, waiver or consent with respect to any Operative
Documents (if requested or approved by the Lessee) PROVIDED that such fees,
expenses and disbursements of counsel shall be limited to one law firm acting on
behalf of the Collateral Agent, the Administrative Agent and the Lenders and one
law firm acting on behalf of the Equity Participants; and (2) any enforcement of
any rights or remedies against the Lessee or the Guarantor in respect of the
Operative Documents;
(c) any other reasonable fees (including arrangement fees
allocated to the Leased Assets), out-of-pocket expenses, disbursements or costs
of the Lessor, the Collateral Agent, the Administrative Agent, the Equity
Participants and the Lenders payable to any such party pursuant to any of the
Operative Documents;
(d) any Taxes and fees incurred in recording, registering or
filing any Operative Document 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 Documents;
(e) any title fees, premiums and escrow costs and other expenses
relating to title insurance and the closings contemplated by the Operative
Documents;
(f) any fees, costs, premiums or expenses incurred in connection
with the purchase of any residual value insurance;
(g) any expenses relating to an Environmental Audit; and
(h) any expenses relating to an Appraisal.
"TRUST AGREEMENT" means the Amended and Restated Declaration of Trust,
dated as of May 22, 2001, entered into by the Trustee and the Equity
Participants, as beneficiaries.
"TRUST CERTIFICATE" means each certificate issued to an Equity
Participant from time to time pursuant to the Trust Agreement.
"TRUSTEE" means First Union National Bank, not in its individual
capacity, except as expressly provided in the Operative Documents, but solely as
the trustee under the Trust Agreement.
"TRUSTEE FEE LETTER" means the letter agreement, dated April 10, 2001,
among the Guarantor, the Lessee and the Trustee.
"UCC FINANCING STATEMENTS" means UCC financing statements appropriately
completed and executed for filing in the applicable jurisdiction in order to
perfect the Lessor's interest under the Lease to the extent the Lease is a
security agreement.
"UNCONSOLIDATED EBITDA" means for any period, the sum (without
duplication), determined for the Lessee on an unconsolidated basis, of (a) net
income for such period PLUS (b) to the extent deducted in determining net income
for such period, the sum of (i) depreciation and amortization (including
deferred financing costs, organization costs, goodwill and non-compete
amortization) for such period, (ii) other non-cash expenses for such period,
(iii) Interest Expense for such period, (iv) provision for income taxes for such
period, (v) extraordinary, unusual or non-recurring charges or other items
(including, without limitation, losses arising from any natural disasters) for
such period determined in accordance with GAAP, (vi) non-compete expenses for
such period to the extent not capitalized in accordance with GAAP
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and (vii) losses on sales of fixed assets not in the ordinary course of business
for such period after giving effect to any related charges for, reductions of or
provisions for taxes thereon minus (c) to the extent included in the calculation
of net income for such period, the sum of (i) other income (including interest
income) for such period, (ii) extraordinary, unusual or non-recurring gains or
other items for such period determined in accordance with GAAP, and (iii) gains
on sales of fixed assets not in the ordinary course of business for such period
after giving effect to any related charges for, reduction of or provisions for
taxes thereon.
For the purposes of determining compliance with the covenant set forth
in SECTION 11(a)(vi) of the Guaranty there may, at the Guarantor's option (such
option to be consistently applied with respect to both the Guarantor and the
Lessee and each transaction), be included in Unconsolidated EBITDA for any
relevant period, on a PRO FORMA basis (adjusted to give effect to expenses that
will not be ongoing), the net income (and the additions and subtractions thereto
referred to above) for such period of any Person (or assets) acquired after the
commencement of such period in connection with any Permitted Acquisition or any
acquisition pursuant to SECTION 9.14(viii)(b) of the Iron Mountain Credit
Agreement (as in effect on the date hereof without regard to any subsequent
amendment, modification, waiver, supplement or termination of such credit
agreement) having Acquisition Consideration, in the case of any such Permitted
Acquisition, or an aggregate amount of consideration paid, in the case of such
acquisition pursuant to such SECTION 9.14(viii)(b) of the Guaranty, of more than
$500,000. The net income (and the related additions and subtractions) of the
Person or assets acquired pursuant to such acquisition for such period shall be
calculated by reference to the most recent available quarterly financial
statements of the acquired business, annualized.
"UNIFORM COMMERCIAL CODE" and "UCC" mean the Uniform Commercial Code as
in effect in any applicable jurisdiction.
"UNREIMBURSED PROPERTY COSTS" means, for any Construction Property, at
any time, all expenditures made by the Construction Agent for the Construction
of the Improvements for such Property for which the Construction Agent is
entitled to be (but has not yet been) reimbursed by Lessor, as evidenced by a
certificate from the Construction Agent in a form reasonably satisfactory to the
Lessor (i) stating the total amount of such expenditures, the date or dates on
which such expenditures were incurred, the name and address of each party to
whom the expenditures were tendered, and such additional information as shall be
requested by the Lessor and (ii) attaching true copies of unreimbursed invoices,
receipted bills and other similar supporting documentation. The Lessor's good
faith determination of the amount of Unreimbursed Property Costs shall be
conclusive and binding, absent manifest error.
"VOTING PERCENTAGE" means, with respect to (i) any Lender, an amount
equal to (A) the Debt Credit Exposure multiplied by (B) the ratio of such
Lender's outstanding Loans to the outstanding Loans of all of the Lenders (or,
if no Loans are outstanding, the ratio of such Lender's Commitment to the
Commitments of all of the Lenders) and (ii) any Equity Participant, an amount
equal to (A) the Equity Credit Exposure multiplied by (B) the ratio of such
Equity Participant's outstanding Equity Contribution to the outstanding Equity
Contributions of all of the Equity Participants (or, if no Equity Contributions
are outstanding, the ratio of such Equity Participant's Equity Commitment to the
Equity Commitments of all of the Equity Participants).
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