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Exhibit 10.25
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LEASE AGREEMENT
(Capital One Services, Inc.)
(Tax Retention Operating Lease)
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually,
but solely as Owner Trustee
under the Capital One Realty Trust 1998-1,
as Lessor
and
CAPITAL ONE SERVICES, INC.,
as Lessee
Dated as of September 3, 1999
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This Lease Agreement is subject to a security interest in favor of Bank of
America, N.A., as Administrative Agent (the "Agent") under a Security Agreement
dated as of September 3, 1999, between First Security Bank, National
Association, not individually except as expressly stated therein, but solely as
Owner Trustee under the Capital One Realty Trust 1998-1 and the Agent, as
amended, modified, supplemented, restated and/or replaced from time to time.
This Lease Agreement has been executed in several counterparts. To the extent,
if any, that this Lease Agreement constitutes chattel paper (as such term is
defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction), no security interest in this Lease Agreement may be created
through the transfer or possession of any counterpart other than the original
counterpart containing the receipt therefor executed by the Agent on the
signature page hereof.
TABLE OF CONTENTS
ARTICLE I..................................................................................................................... 1
1.1 Definitions.......................................................................................................... 1
1.2 Interpretation....................................................................................................... 2
ARTICLE II.................................................................................................................... 2
2.1 Property............................................................................................................. 2
2.2 Lease Term........................................................................................................... 2
2.3 Title................................................................................................................ 2
2.4 Lease Supplements.................................................................................................... 2
ARTICLE III................................................................................................................... 3
3.1 Rent................................................................................................................. 3
3.2 Payment of Basic Rent................................................................................................ 3
3.3 Supplemental Rent.................................................................................................... 3
3.4 Performance on a Non-Business Day.................................................................................... 4
3.5 Rent Payment Provisions.............................................................................................. 4
ARTICLE IV.................................................................................................................... 4
4.1 Taxes; Utility Charges............................................................................................... 4
ARTICLE V..................................................................................................................... 5
5.1 Quiet Enjoyment...................................................................................................... 5
ARTICLE VI.................................................................................................................... 5
6.1 Net Lease............................................................................................................ 5
6.2 No Termination or Abatement.......................................................................................... 6
ARTICLE VII................................................................................................................... 6
7.1 Ownership of the Property............................................................................................ 6
ARTICLE VIII.................................................................................................................. 7
8.1 Condition of the Property............................................................................................ 7
8.2 Possession and Use of the Property................................................................................... 8
ARTICLE IX.................................................................................................................... 9
9.1 Compliance With Legal Requirements and Insurance Requirements........................................................ 9
ARTICLE X..................................................................................................................... 9
10.1 Maintenance and Repair; Return...................................................................................... 9
10.2 Environmental Inspection............................................................................................ 10
ARTICLE XI.................................................................................................................... 11
11.1 Modifications....................................................................................................... 11
ARTICLE XII................................................................................................................... 11
12.1 Warranty of Title................................................................................................... 11
ARTICLE XIII.................................................................................................................. 12
13.1 Permitted Contests Other Than in Respect of Indemnities............................................................. 12
ARTICLE XIV................................................................................................................... 13
14.1 Public Liability and Workers' Compensation Insurance................................................................ 13
14.2 Permanent Hazard and Other Insurance................................................................................ 13
14.3 Coverage............................................................................................................ 14
ARTICLE XV.................................................................................................................... 15
15.1 Casualty and Condemnation........................................................................................... 15
i
15.2 Environmental Matters............................................................................................... 17
15.3 Notice of Environmental Matters..................................................................................... 17
ARTICLE XVI................................................................................................................... 18
16.1 Termination Upon Certain Events..................................................................................... 18
16.2 Procedures.......................................................................................................... 18
ARTICLE XVII.................................................................................................................. 18
17.1 Lease Events of Default............................................................................................. 18
17.2 Surrender of Possession............................................................................................. 21
17.3 Reletting........................................................................................................... 21
17.4 Damages............................................................................................................. 22
17.5 Power of Sale....................................................................................................... 22
17.6 Final Liquidated Damages............................................................................................ 23
17.7 Lessee's Purchase Option During Default............................................................................. 23
17.8 Waiver of Certain Rights............................................................................................ 23
17.9 Assignment of Rights Under Contracts................................................................................ 24
17.10 Remedies Cumulative................................................................................................ 24
ARTICLE XVIII................................................................................................................. 24
18.1 Lessor's Right to Cure Lessee's Lease Defaults...................................................................... 24
ARTICLE XIX................................................................................................................... 24
19.1 Provisions Relating to Lessee's Exercise of its Purchase Option..................................................... 24
19.2 No Purchase or Termination With Respect to Less than All of a Property.............................................. 25
ARTICLE XX.................................................................................................................... 25
20.1 Purchase Option or Sale Option-General Provisions................................................................... 25
20.2 Lessee Purchase Option.............................................................................................. 26
20.3 Third Party Sale Option............................................................................................. 26
ARTICLE XXI................................................................................................................... 27
21.1 [Intentionally Omitted]............................................................................................. 27
ARTICLE XXII.................................................................................................................. 27
22.1 Sale Procedure...................................................................................................... 27
22.2 Application of Proceeds of Sale..................................................................................... 29
22.3 Indemnity for Excessive Wear........................................................................................ 29
22.4 Appraisal Procedure................................................................................................. 30
22.5 Certain Obligations Continue........................................................................................ 30
ARTICLE XXIII................................................................................................................. 30
23.1 Holding Over........................................................................................................ 30
ARTICLE XXIV.................................................................................................................. 31
24.1 Risk of Loss........................................................................................................ 31
ARTICLE XXV................................................................................................................... 31
25.1 Assignment.......................................................................................................... 31
25.2 Subleases........................................................................................................... 31
ARTICLE XXVI.................................................................................................................. 32
26.1 No Waiver........................................................................................................... 32
ARTICLE XXVII................................................................................................................. 32
27.1 Acceptance of Surrender............................................................................................. 32
27.2 No Merger of Title.................................................................................................. 32
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ARTICLE XXVIII................................................................................................................ 33
28.1 Incorporation of Covenants.......................................................................................... 33
ARTICLE XXIX.................................................................................................................. 34
29.1 Notices............................................................................................................. 34
ARTICLE XXX................................................................................................................... 35
30.1 Miscellaneous....................................................................................................... 35
30.2 Amendments and Modifications........................................................................................ 35
30.3 Successors and Assigns.............................................................................................. 35
30.4 Headings and Table of Contents...................................................................................... 35
30.5 Counterparts........................................................................................................ 36
30.6 GOVERNING LAW....................................................................................................... 36
30.7 Calculation of Rent................................................................................................. 36
30.8 Memoranda of Lease and Lease Supplements............................................................................ 36
30.9 Allocations between the Lenders and the Holders..................................................................... 36
30.10 Limitations on Recourse............................................................................................ 36
30.11 WAIVERS OF JURY TRIAL.............................................................................................. 37
30.12 Exercise of Lessor Rights.......................................................................................... 37
30.13 Submission To Jurisdiction; Waivers................................................................................ 37
30.14 USURY SAVINGS PROVISION............................................................................................ 38
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EXHIBITS
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EXHIBIT A - Lease Supplement No. ___
EXHIBIT B - Memorandum of Lease and Lease Supplement No.___
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LEASE AGREEMENT
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(Capital One Services, Inc.)
(Tax Retention Operating Lease Agreement)
THIS LEASE AGREEMENT (Capital One Services, Inc.) (Tax Retention Operating
Lease) (as amended, supplemented or modified from time to time, this "Lease"),
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dated as of September 3, 1999, is between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, having its principal office at 79
South Main Street, Salt Lake City, Utah 84111, not individually, but solely as
Owner Trustee under the Capital One Realty Trust 1998-1, as lessor (the
"Lessor"), and CAPITAL ONE SERVICES, INC., a Delaware corporation, having its
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principal place of business at 2980 Fairview Park Drive, Suite 1300, Falls
Church, VA 22042, as lessee (the "Lessee").
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W I T N E S S E T H:
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A. WHEREAS, subject to the terms and conditions of the Agency Agreement
(Capital One Services, Inc.), Lessor will (i) purchase or ground lease various
parcels of real property, some of which will (or may) have existing Improvements
thereon, from one or more third parties designated by Lessee and (ii) fund the
development, refurbishment and construction by the Construction Agent of
Improvements on such real property; and
B. WHEREAS, the Basic Term shall commence with respect to each
Property upon the Completion of such Property (the "Basic Term Commencement
-----------------------
Date").
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C. WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to
lease from Lessor, each Property;
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1 Definitions.
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Capitalized terms used but not otherwise defined in this Lease have the
respective meanings specified in Appendix A to the Participation Agreement
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(Capital One Services, Inc.) of even date herewith (as such may be amended,
modified, supplemented, restated and/or replaced from time to time, the
"Participation Agreement") among the Lessee, the Construction Agent, Capital One
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Financial Corporation, as Guarantor, First Security Bank, National Association,
not individually, except as expressly stated therein, as Owner Trustee under the
Capital One Realty Trust 1998-1, the Holders, the Lenders and the Agent.
1.2 Interpretation.
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The rules of usage set forth in Appendix A to the Participation Agreement
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shall apply to this Lease.
ARTICLE II
2.1 Property.
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Subject to the terms and conditions hereinafter set forth and contained in
the respective Lease Supplement relating to each Property, Lessor hereby leases
to Lessee and Lessee hereby leases from Lessor, each Property. Each Property is
(or will be) legally described in the applicable Lease Supplement.
2.2 Lease Term.
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The basic term of this Lease with respect to each Property (the "Basic
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Term") shall begin upon the Basic Term Commencement Date and shall end on the
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third annual anniversary of the Initial Closing Date (the "Basic Term Expiration
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Date"), unless the Basic Term is earlier terminated or the term of this Lease is
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renewed (as described below) in accordance with the provisions of this Lease.
To the extent no Default or Event of Default has occurred and is
continuing, and if Lessee has not provided written notice to Lessor at least one
hundred twenty (120) days prior to the Basic Term Expiration Date of its
determination to exercise its purchase option or sale option under Article XX
hereof, the term of this Lease for each Property shall be automatically extended
for one (1) additional term of one (1) year's duration from the Basic Term
Expiration Date (the "Renewal Term"); provided, that the expiration date for
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such Renewal Term for each Property shall not be later than the fourth annual
anniversary of the Initial Closing Date.
2.3 Title.
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Each Property is leased to Lessee without any representation or warranty,
express or implied, by Lessor and subject to the rights of parties in possession
(if any), the existing state of title (including, without limitation, the
Permitted Exceptions) and all applicable Legal Requirements. Lessee shall in no
event have any recourse against Lessor for any defect in title to any Property
other than for Lessor Liens.
2.4 Lease Supplements.
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On or prior to each Basic Term Commencement Date, Lessee and Lessor shall
each execute and deliver a Lease Supplement for the Property to be leased
effective as of such Basic Term Commencement Date in substantially the form of
Exhibit A hereto.
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ARTICLE III
3.1 Rent.
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(a) Lessee shall pay Basic Rent in arrears on each Payment Date, and
on any date on which this Lease shall terminate with respect to any or all
Properties during the Term; provided, however, with respect to each
individual Property Lessee shall have no obligation to pay Basic Rent with
respect to such Property until the Basic Term has commenced with respect to
such Property.
(b) Basic Rent shall be due and payable in lawful money of the
United States and shall be paid by wire transfer of immediately available
funds on the due date therefor (or within the applicable grace period) to
such account or accounts at such bank or banks as Lessor shall from time to
time direct.
(c) Lessee's inability or failure to take possession of all or any
portion of any Property when delivered by Lessor, whether or not
attributable to any act or omission of Lessor, the Construction Agent or
Lessee, or for any other reason whatsoever, shall not delay or otherwise
affect Lessee's obligation to pay Rent for such Property in accordance with
the terms of this Lease.
3.2 Payment of Basic Rent.
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Basic Rent shall be paid absolutely net to Lessor or its designee, so that
this Lease shall yield to Lessor the full amount thereof, without setoff,
deduction or reduction.
3.3 Supplemental Rent.
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Lessee shall pay to Lessor or its designee or to the Person entitled
thereto any and all Supplemental Rent promptly as the same shall become due and
payable, and if Lessee fails to pay any Supplemental Rent, Lessor shall have all
rights, powers and remedies provided for herein or by law or equity or otherwise
in the case of nonpayment of Basic Rent. Lessee shall pay to Lessor, as
Supplemental Rent, among other things, on demand, to the extent permitted by
applicable Legal Requirements, (a) any and all unpaid fees, charges, payments
and other obligations (other than the obligations of Lessor to pay the principal
amount of the Loans and the Holder Amount) due and owing by Lessor under the
Credit Agreement, under the Trust Agreement and/or under any other Operative
Agreement (including specifically without limitation any amounts owing to the
Lenders under Section 2.11, Section 2.12, Section 2.13 and Section 9.5 of the
Credit Agreement and any amounts owing to the Holders under Section 3.9 or
Section 3.10 of the Trust Agreement) and (b) interest at the applicable Overdue
Rate on any installment of Basic Rent not paid when due (subject to the
applicable grace period) for the period for which the same shall be overdue and
on any payment of Supplemental Rent not paid when due or demanded by Lessor for
the period from the due date or the date of any such demand, as the case may be,
until the same shall be paid. The expiration or other termination of Lessee's
obligations to pay Basic Rent hereunder shall not limit or modify the
obligations of Lessee with respect to Supplemental Rent. Unless expressly
provided otherwise in this Lease, in
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the event of any failure on the part of Lessee to pay and discharge any
Supplemental Rent as and when due, Lessee shall also promptly pay and discharge
any fine, penalty, interest or cost which may be assessed or added for
nonpayment or late payment of such Supplemental Rent, all of which shall also
constitute Supplemental Rent. Notwithstanding the foregoing, with respect to
each individual Property, Lessee shall have no obligation to pay Supplemental
Rent with respect to such Property until the Basic Term has commenced with
respect to such Property; provided, nothing in this Section 3.3 shall excuse the
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Construction Agent from paying amounts (including amounts that would otherwise
constitute Supplemental Rent obligations) to the extent such amounts are payable
under the Agency Agreement prior to the Basic Term Commencement Date respecting
such Property.
3.4 Performance on a Non-Business Day.
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If any Basic Rent is required hereunder on a day that is not a Business
Day, then such Basic Rent shall be due on the corresponding Scheduled Interest
Payment Date. If any Supplemental Rent is required hereunder on a day that is
not a Business Day, then such Supplemental Rent shall be due on the next
succeeding Business Day.
3.5 Rent Payment Provisions.
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Lessee shall make payment of all Basic Rent and Supplemental Rent when due
(subject to the applicable grace period) regardless of whether any of the
Operative Agreements pursuant to which same is calculated and is owing shall
have been rejected, avoided or disavowed in any bankruptcy or insolvency
proceeding involving any of the parties to any of the Operative Agreements.
Such provisions of such Operative Agreements and their related definitions are
incorporated herein by reference and shall survive any termination, amendment or
rejection of any such Operative Agreements.
ARTICLE IV
4.1 Taxes; Utility Charges.
----------------------
Lessee shall pay or cause to be paid all Impositions with respect to the
Properties and/or the use, occupancy or operation thereof and all charges for
electricity, power, gas, oil, water, telephone, sanitary sewer service and all
other rents, utilities and operating expenses of any kind or type used in or on
a Property and related real property during the Term. Upon Lessor's request,
Lessee shall provide from time to time Lessor with evidence of all such payments
referenced in the foregoing sentence. Lessee shall be entitled to receive any
credit or refund with respect to any Imposition or utility charge paid by
Lessee. Unless an Event of Default shall have occurred and be continuing, the
amount of any credit or refund received by Lessor on account of any Imposition
or utility charges paid by Lessee, net of the costs and expenses incurred by
Lessor in obtaining such credit or refund, shall be promptly paid over to
Lessee. All charges for Impositions or utilities imposed with respect to a
Property for a period during which this Lease expires or terminates shall be
adjusted and prorated on a daily basis between Lessor and Lessee, and each party
shall pay or reimburse the other for such party's pro rata share thereof.
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ARTICLE V
5.1 Quiet Enjoyment.
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Subject to the rights of Lessor contained in Sections 17.2, 17.3 and 20.3
and the other terms of this Lease and so long as no Lease Event of Default shall
have occurred and be continuing, Lessee shall peaceably and quietly have, hold
and enjoy each Property for the applicable Term, free of any claim or other
action by Lessor or anyone rightfully claiming by, through or under Lessor
(other than Lessee) with respect to any matters arising from and after the
applicable Basic Term Commencement Date.
ARTICLE VI
6.1 Net Lease.
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This Lease shall constitute a net lease, and the obligations of Lessee
hereunder are absolute and unconditional. Any present or future law to the
contrary notwithstanding, this Lease shall not terminate, nor shall Lessee be
entitled to any abatement, suspension, deferment, reduction, setoff,
counterclaim, or defense with respect to the Rent, nor shall the obligations of
Lessee hereunder be affected (except as expressly herein permitted and by
performance of the obligations in connection therewith) by reason of: (i) any
damage to or destruction of any Property or any part thereof; (ii) any taking of
any Property or any part thereof or interest therein by Condemnation or
otherwise; (iii) any prohibition, limitation, restriction or prevention of
Lessee's use, occupancy or enjoyment of any Property or any part thereof, or any
interference with such use, occupancy or enjoyment by any Person or for any
other reason; (iv) any title defect, Lien or any matter affecting title to any
Property; (v) any eviction by paramount title or otherwise; (vi) any default by
Lessor hereunder; (vii) any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding relating to or affecting Lessor,
Lessee, any Holder or any Governmental Authority; (viii) the impossibility or
illegality of performance by Lessor, Lessee or both; (ix) any action of any
Governmental Authority; (x) Lessee's acquisition of ownership of all or part of
any Property; (xi) breach of any warranty or representation with respect to any
Property or any Operative Agreement; (xii) any defect in the condition, quality
or fitness for use of any Property or any part thereof; or (xiii) any other
cause or circumstance whether similar or dissimilar to the foregoing and whether
or not Lessee shall have notice or knowledge of any of the foregoing. The
parties intend that the obligations of Lessee hereunder shall be covenants,
agreements and obligations that are separate and independent from any
obligations of Lessor hereunder and shall continue unaffected unless such
covenants, agreements and obligations shall have been modified or terminated in
accordance with an express provision of this Lease. Lessor and Lessee
acknowledge and agree that the provisions of this Section 6.1 have been
specifically reviewed and subject to negotiation.
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6.2 No Termination or Abatement.
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Lessee shall remain obligated under this Lease in accordance with its terms
and shall not take any action to terminate, rescind or avoid this Lease,
notwithstanding any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution, or other proceeding affecting Lessor or any
Governmental Authority, or any action with respect to this Lease or any
Operative Agreement which may be taken by any trustee, receiver or liquidator of
Lessor or any Governmental Authority or by any court with respect to Lessor,
Lessee, any Holder, or any Governmental Authority. Lessee hereby waives all
right (i) to terminate or surrender this Lease (except as permitted under the
terms of the Operative Agreements) or (ii) to avail itself of any abatement,
suspension, deferment, reduction, setoff, counterclaim or defense with respect
to any Rent. Lessee shall remain obligated under this Lease in accordance with
its terms and Lessee hereby waives any and all rights now or hereafter conferred
by statute or otherwise to modify or to avoid strict compliance with its
obligations under this Lease. Notwithstanding any such statute or otherwise,
Lessee shall be bound by all of the terms and conditions contained in this
Lease.
ARTICLE VII
7.1 Ownership of the Property.
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(a) Lessor and Lessee intend that (i) for financial accounting
purposes with respect to Lessee (A) this Lease will be treated as an
"operating lease" pursuant to Statement of Financial Accounting Standards
No. 13, as amended, (B) Lessor will be treated as the owner and lessor of
each Property and (C) Lessee will be treated as the lessee of each
Property, but (ii) for federal and all state and local income tax purposes,
bankruptcy purposes, commercial law and real estate purposes and all other
purposes (A) this Lease will be treated as a financing arrangement and (B)
Lessee will be treated as the owner of the Properties and will be entitled
to all tax benefits ordinarily available to owners of property similar to
the Properties for such tax purposes.
(b) For all purposes other than as set forth in Section 7.1(a),
Lessor and Lessee intend this Lease to constitute a finance lease and not a
true lease. Lessor and Lessee further intend and agree that, for the
purpose of securing Lessee's obligations hereunder, (i) this Lease shall be
deemed to be a security agreement and financing statement within the
meaning of Article 9 of the Uniform Commercial Code respecting each of the
Properties to the extent such is personal property and an irrevocable grant
and conveyance of a lien and mortgage on each of the Properties to the
extent such is real property; (ii) the acquisition of title in each
Property referenced in Article II shall be deemed to be a grant by Lessee
to Lessor of, and Lessee hereby grants to Lessor, a lien on and security
interest, mortgage lien and deed of trust in all of Lessee's right, title
and interest in and to the Property and all proceeds (including without
limitation insurance proceeds) of the conversion, voluntary or involuntary,
of the foregoing into cash, investments, securities or other property,
whether in the form of cash, investments,
-6-
securities or other property, and an assignment of all rents, profits and
income produced by the Property; and (iii) notifications to Persons holding
such property, and acknowledgments, receipts or confirmations from
financial intermediaries, bankers or agents (as applicable) of Lessee shall
be deemed to have been given for the purpose of perfecting such security
interest, mortgage lien and deed of trust under applicable law. Lessor and
Lessee shall promptly take such actions as may be necessary or advisable in
either party's opinion (including without limitation the filing of Uniform
Commercial Code Financing Statements, Uniform Commercial Code Fixture
Filings and memoranda of this Lease and the various Lease Supplements) to
ensure that the security interest, lien, mortgage lien and deed of trust in
each Property will be deemed to be a perfected lien and security interest
of first priority under applicable law and will be maintained as such
throughout the Term.
ARTICLE VIII
8.1 Condition of the Property.
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LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING EACH PROPERTY "AS IS"
WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY LESSOR AND
IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF TITLE, (B) THE RIGHTS OF ANY
PARTIES IN POSSESSION THEREOF (IF ANY), (C) ANY STATE OF FACTS WHICH AN ACCURATE
SURVEY OR PHYSICAL INSPECTION MIGHT SHOW, (D) ALL APPLICABLE LEGAL REQUIREMENTS
AND (E) VIOLATIONS OF LEGAL REQUIREMENTS WHICH MAY EXIST ON THE DATE HEREOF
AND/OR THE DATE OF THE APPLICABLE LEASE SUPPLEMENT. NEITHER LESSOR NOR THE
AGENT NOR ANY LENDER NOR ANY HOLDER HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) OR SHALL BE DEEMED TO
HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE, VALUE, HABITABILITY, USE,
CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF ANY PROPERTY
(OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY (OR ANY PART
THEREOF), AND NEITHER LESSOR NOR THE AGENT NOR ANY LENDER NOR ANY HOLDER SHALL
BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREON OR THE FAILURE OF ANY
PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT. THE LESSEE
HAS OR WILL HAVE BEEN AFFORDED FULL OPPORTUNITY TO INSPECT EACH PROPERTY AND THE
IMPROVEMENTS THEREON (IF ANY), IS OR WILL BE (INSOFAR AS THE LESSOR, THE AGENT,
EACH LENDER AND EACH HOLDER ARE CONCERNED) SATISFIED WITH THE RESULTS OF ITS
INSPECTIONS AND IS ENTERING INTO THIS LEASE SOLELY ON THE BASIS OF THE RESULTS
OF ITS OWN INSPECTIONS, AND ALL RISKS INCIDENT TO THE MATTERS DESCRIBED IN THE
PRECEDING SENTENCE, AS BETWEEN THE LESSOR, THE
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AGENT, THE LENDERS AND THE HOLDERS, ON THE ONE HAND, AND THE LESSEE, ON THE
OTHER HAND, ARE TO BE BORNE BY LESSEE.
8.2 Possession and Use of the Property.
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(a) At all times during the Term with respect to each Property, such
Property shall be used by Lessee in the ordinary course of its business.
Lessee shall pay, or cause to be paid, all charges and costs required in
connection with the use of the Properties as contemplated by this Lease.
Lessee shall not commit or permit any waste of the Properties or any part
thereof.
(b) The address stated in Section 29.1 of this Lease is the chief
place of business and chief executive office of Lessee (as such terms are
used in Section 9-103(3) of the Uniform Commercial Code of any applicable
jurisdiction), and Lessee will provide Lessor with prior written notice of
any change of location of its chief place of business or chief executive
office. Regarding a particular Property, each Lease Supplement correctly
identifies the initial location of the related Equipment and Improvements
and contains an accurate legal description for the related parcel of Land.
Lessee has no other places of business where the Equipment or Improvements
will be located other than those identified on the applicable Lease
Supplement.
(c) Lessee will not attach or incorporate any item of Equipment to
or in any other item of equipment or personal property or to or in any real
property (except the Land identified in the Lease Supplement in which such
Equipment is also described) in a manner that could give rise to the
assertion of any Lien on such item of Equipment by reason of such
attachment or the assertion of a claim that such item of Equipment has
become a fixture and is subject to a Lien in favor of a third party that is
prior to the Liens thereon created by the Operative Agreements.
(d) On the Basic Term Commencement Date for each Property, Lessor
and Lessee shall execute a Lease Supplement in regard to such Property
which shall contain an Equipment Schedule that has a complete description
of each item of Equipment, an Improvement Schedule that has a complete
description of each Improvement and a legal description of the Land, to be
leased hereunder as of such date. Simultaneously with the execution and
delivery of each Lease Supplement, such Equipment, Improvements and Land
shall be deemed to have been accepted by Lessee for all purposes of this
Lease and to be subject to this Lease.
(e) At all times during the Term with respect to each Property,
Lessee will comply with all obligations under and (to the extent no Event
of Default exists and provided that such exercise will not impair the value
of such Property) shall be permitted to exercise all rights and remedies
under, all operation and easement agreements and related or similar
agreements applicable to such Property.
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(f) To the extent any punch list items with respect to any
particular Property are not complete as of the Basic Term Commencement Date
for such Property, Lessee shall cause such punch list items to be completed
promptly after the Basic Term Commencement Date respecting such Property.
ARTICLE IX
9.1 Compliance With Legal Requirements and Insurance Requirements.
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Subject to the terms of Article XIII relating to permitted contests,
Lessee, at its sole cost and expense, shall (i) comply with all material Legal
Requirements (including without limitation all Environmental Laws), and all
Insurance Requirements relating to the Properties, including the use,
development, construction, operation, maintenance, repair, refurbishment and
restoration thereof, whether or not compliance therewith shall require
structural or extraordinary changes in the Improvements or interfere with the
use and enjoyment of the Properties, and (ii) procure, maintain and comply with
all material licenses, permits, orders, approvals, consents and other
authorizations required for the construction, use, maintenance and operation of
the Properties and for the use, development, construction, operation,
maintenance, repair and restoration of the Improvements. The Lessor agrees to
take such actions as may be reasonably requested by the Lessee in connection
with the compliance by the Lessee of its obligations under this Section 9.1.
ARTICLE X
10.1 Maintenance and Repair; Return.
------------------------------
(a) Lessee, at its sole cost and expense, shall maintain each
Property in good condition, repair and working order (ordinary wear and
tear excepted) and make all necessary repairs thereto, of every kind and
nature whatsoever, whether interior or exterior, ordinary or extraordinary,
structural or nonstructural or foreseen or unforeseen, in each case as
required by all Legal Requirements, Insurance Requirements, and
manufacturer's specifications and standards and on a basis consistent with
the operation and maintenance of properties or equipment comparable in type
and function to the applicable Property and in compliance with standard
industry practice subject, however, to the provisions of Article XV with
respect to Condemnation and Casualty.
(b) Lessee shall not use or locate any component of any Property
outside of any Approved State. Lessee shall not move or relocate any
component of any Property beyond the boundaries of the Land (comprising
part of the Property) described in the applicable Lease Supplement.
(c) If any component of any Property becomes worn out, lost,
destroyed, damaged beyond repair or otherwise permanently rendered unfit
for use and the failure to replace such component would have a Material
Adverse Effect on such Property, Lessee, at its own expense, will within a
reasonable time replace such component with a
-9-
replacement component which is free and clear of all Liens (other than
Permitted Liens) and has a value, utility and useful life at least equal to
the component replaced. All components which are added to the Property
shall immediately become the property of, and title thereto shall vest in,
Lessor, and shall be deemed incorporated in the Property and subject to the
terms of this Lease as if originally leased hereunder.
(d) Upon reasonable advance notice, Lessor and its agents shall have
the right to inspect each Property and all maintenance records with respect
thereto at any reasonable time during normal business hours but shall not,
in the absence of an Event of Default, materially disrupt the business of
Lessee.
(e) Lessee shall cause to be delivered to Lessor (at Lessee's sole
expense) any additional Appraisals (or reappraisals) as Lessor may request
if any one of Lessor, the Agent, any Lender or any Holder is required
pursuant to any applicable Legal Requirement to obtain such an Appraisal
(or reappraisal).
(f) Lessor shall under no circumstances be required to build any
improvements on any Property, make any repairs, replacements, alterations
or renewals of any nature or description to any Property, make any
expenditure whatsoever in connection with this Lease or maintain any
Property in any way. Lessor shall not be required to maintain, repair or
rebuild all or any part of any Property, and Lessee waives the right to (i)
require Lessor to maintain, repair, or rebuild all or any part of any
Property, or (ii) make repairs at the expense of Lessor pursuant to any
Legal Requirement, Insurance Requirement, contract, agreement, covenants,
condition or restriction at any time in effect.
(g) Lessee shall, upon the expiration or earlier termination of this
Lease with respect to a Property, if Lessee shall not have exercised its
Purchase Option with respect to such Property, surrender such Property to
Lessor, or the third party purchaser, as the case may be, subject to
Lessee's obligations under this Lease (including without limitation the
obligations of the Lessee at the time of such surrender under Sections 9.1,
10.1(a)-(f), 10.2, 11.1, 12.1, 22.1 and 23.1).
10.2 Environmental Inspection.
------------------------
If Lessee has not given notice of exercise of its Purchase Option on the
Expiration Date pursuant to Section 20.1, then not more than 120 days nor less
than 60 days prior to the Expiration Date, Lessee shall, at its sole cost and
expense, provide to Lessor a report by a reputable environmental consultant
selected by Lessee, which report shall be in form and substance reasonably
satisfactory to Lessor.
-10-
ARTICLE XI
11.1 Modifications.
-------------
(a) Lessee at its sole cost and expense, at any time and from time
to time without the consent of Lessor may make alterations, renovations,
improvements and additions to the Property or any part thereof and
substitutions and replacements therefor (collectively, "Modifications"),
-------------
and Lessee shall make any and all Modifications required to be made
pursuant to any Legal Requirement; provided, that: (i) except for any
--------
Modification required to be made pursuant to a Legal Requirement, no
Modification shall materially impair the value, utility or useful life of
the Property from that which existed immediately prior to such
Modification; (ii) the Modification shall be done expeditiously and in a
good and workmanlike manner; (iii) Lessee shall comply with all material
Legal Requirements (including all Environmental Laws) and Insurance
Requirements applicable to the Modification, including the obtaining of all
permits and certificates of occupancy, and the structural integrity of the
Property shall not be adversely affected; (iv) to the extent required by
Section 14.2(a), Lessee shall maintain builders' risk insurance at all
times when a Modification is in progress; (v) subject to the terms of
Article XIII relating to permitted contests, Lessee shall pay all costs and
expenses and discharge any Liens arising with respect to the Modification;
(vi) such Modification shall comply with the requirements of this Lease
(including without limitation Sections 8.2 and 10.1); and (vii) no
Improvements shall be demolished unless Lessee shall finance the proposed
Modification outside of this lease facility. All Modifications shall
immediately and without further action upon their incorporation into the
applicable Property (1) become property of the Lessor, (2) be subject to
this Lease and (3) be titled in the name of Lessor. Lessee shall not remove
or attempt to remove any Modification from any Property. Each Ground Lease
for a Property shall expressly provide for the provisions of the foregoing
sentence. Lessee, at its own cost and expense, will pay for the repairs of
any damage to the Property caused by the removal or attempted removal of
any Modification.
(b) The construction process provided for in the Agency Agreement is
acknowledged by Lessor and the Agent to be consistent with and in
compliance with the terms and provisions of this Article XI.
ARTICLE XII
12.1 Warranty of Title.
-----------------
(a) Lessee agrees that, except as otherwise provided herein and
subject to the terms of Article XIII relating to permitted contests, Lessee
shall not directly or indirectly create or allow to remain, and shall
promptly discharge at its sole cost and expense, any Lien, defect,
attachment, levy, title retention agreement or claim upon any Property or
any Modifications or any Lien, attachment, levy or claim with respect to
the Rent or with respect to any amounts held by the Agent pursuant to the
Credit Agreement, other than
-11-
Permitted Liens and Lessor Liens. Lessee shall promptly notify Lessor in
the event it receives actual knowledge that a Lien other than a Permitted
Lien or Lessor Lien has occurred with respect to a Property, and Lessee
represents and warrants to, and covenants with, Lessor that the Liens in
favor of the Lessor created by the Operative Agreements are first priority
perfected Liens subject only to Permitted Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, expressed or implied, to or
for the performance by any contractor, mechanic, laborer, materialman,
supplier or vendor of any labor or services or for the furnishing of any
materials for any construction, alteration, addition, repair or demolition
of or to any Property or any part thereof. NOTICE IS HEREBY GIVEN THAT
LESSOR IS NOT AND SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS
FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING A PROPERTY OR
ANY PART THEREOF THROUGH OR UNDER LESSEE, AND THAT NO MECHANIC'S OR OTHER
LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT
THE INTEREST OF LESSOR IN AND TO ANY PROPERTY.
ARTICLE XIII
13.1 Permitted Contests Other Than in Respect of Indemnities.
-------------------------------------------------------
Except to the extent otherwise provided for in Section 13 of the
Participation Agreement, Lessee, on its own or on Lessor's behalf but at
Lessee's sole cost and expense, may contest, by appropriate administrative or
judicial proceedings conducted in good faith and with due diligence, the amount,
validity or application, in whole or in part, of any Legal Requirement, or
utility charges payable pursuant to Section 4.1 or any Lien, attachment, levy,
encumbrance or encroachment, and Lessor agrees not to pay, settle or otherwise
compromise any such item, provided that (a) the commencement and continuation of
such proceedings shall suspend the collection of any such contested amount from,
and suspend the enforcement thereof against, the applicable Properties, Lessor,
each Holder, the Agent and each Lender; (b) there shall not be imposed a Lien
(other than Permitted Liens) on any Property and no part of any Property nor any
Rent would be in any danger of being sold, forfeited, lost or deferred; (c) at
no time during the permitted contest shall there be a risk of the imposition of
criminal liability or material civil liability on Lessor, any Holder, the Agent
or any Lender for failure to comply therewith; and (d) in the event that, at any
time, there shall be a material risk of extending the application of such item
beyond the end of the Term, then Lessee shall deliver to Lessor an Officer's
Certificate certifying as to the matters set forth in clauses (a), (b) and (c)
of this Section 13.1. Lessor, at Lessee's sole cost and expense, shall execute
and deliver to Lessee such authorizations and other documents as may reasonably
be required in connection with any such contest and, if reasonably requested by
Lessee, shall join as a party therein at Lessee's sole cost and expense.
-12-
ARTICLE XIV
14.1 Public Liability and Workers' Compensation Insurance.
----------------------------------------------------
During the Term for each Property, Lessee shall procure and carry, at
Lessee's sole cost and expense, commercial general liability and umbrella
liability insurance for claims for injuries or death sustained by persons or
damage to property while on the Properties or the premises where the Equipment
is located and such other public liability coverages as are then customarily
carried by similarly situated companies conducting business similar to that
conducted by Lessee. Such insurance shall be on terms and in amounts that are
no less favorable than insurance maintained by Lessee with respect to similar
properties and equipment that it owns and are then carried by similarly situated
companies conducting business similar to that conducted by Lessee, and in no
event shall have a minimum combined single limit per occurrence coverage (i) for
commercial general liability of less than $1,000,000 and (ii) for umbrella
liability of less than $50,000,000. The policies shall name the Lessee as the
insured and shall be endorsed to name Lessor, the Holders, the Agent and the
Lenders as additional insureds. The policies shall also specifically provide
that such policies shall be considered primary insurance which shall apply to
any loss or claim before any contribution by any insurance which Lessor, any
Holder, the Agent or any Lender may have in force. Lessee shall, in the
operation of the Properties, comply with applicable workers' compensation laws
and protect Lessor, each Holder, the Agent and each Lender against any liability
under such laws.
14.2 Permanent Hazard and Other Insurance.
------------------------------------
(a) During the Term for each Property, Lessee shall keep each of the
Properties insured against loss or damage by fire and other risks and shall
maintain builders' risk insurance during construction of any Improvements
or Modifications in amounts no less than the Termination Value from time to
time and on terms that (a) are no less favorable than insurance covering
other similar properties owned by Lessee and (b) are then carried by
similarly situated companies conducting business similar to that conducted
by Lessee. The policies shall name the Lessee as the insured and shall be
endorsed to name Lessor as an additional insured and loss payee and the
Agent, on behalf of the Holders and the Lenders to the extent of their
respective interests, as mortgagee and an additional named insured and loss
payee; provided, so long as no Lease Event of Default exists, any loss
--------
payable under the insurance policies required by this Section for losses up
to $1,000,000 will be paid to Lessee.
(b) If, during the Term with respect to a Property the area in which
such Property is located is designated a "flood-prone" area pursuant to the
Flood Disaster Protection Act of 1973, or any amendments or supplements
thereto or is in a zone designated A or V, then Lessee shall comply with
the National Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973. In addition, Lessee will fully comply with the
requirements of the National Flood Insurance Act of 1968 and the Flood
Disaster Protection Act of 1973, as each may be amended from time to time,
and with any
-13-
other Legal Requirement, concerning flood insurance to the extent that it
applies to any such Property.
14.3 Coverage.
--------
(a) As of the date of this Lease and annually thereafter during the
Term, Lessee shall furnish Lessor and the Agent with certificates prepared
by the insurers or insurance broker of Lessee showing the insurance
required under Sections 14.1 and 14.2 to be in effect, naming (except with
respect to workers' compensation insurance) Lessor, the Holders, the Agent
and the Lender as additional insureds and loss payees and evidencing the
other requirements of this Article XIV. All such insurance shall be at the
cost and expense of Lessee (or the Lessee's Contractors with respect to
insurance required to be maintained by such Contractors) and provided by
nationally recognized, financially sound insurance companies having an A-
X11 or better rating by Best's Key Rating Guide. Such certificates shall
include a provision for thirty (30) days' advance written notice by the
insurer to Lessor and the Agent in the event of cancellation or material
alteration of such insurance. If a Lease Event of Default has occurred and
is continuing and Lessor so requests, Lessee shall deliver to Lessor copies
of all insurance policies required by Sections 14.1 and 14.2.
(b) Lessee agrees that the insurance policy or policies required by
Sections 14.1, 14.2(a) and 14.2(b) shall include an appropriate clause
pursuant to which any such policy shall provide that it will not be
invalidated should Lessee or any Contractor, as the case may be, waive, at
any time, any or all rights of recovery against any party for losses
covered by such policy or due to any breach of warranty, fraud, action,
inaction or misrepresentation by Lessee or any Person acting on behalf of
Lessee. Lessee hereby waives any and all such rights against the Lessor,
the Holders, the Agent and the Lenders to the extent of payments made to
any such Person under any such policy.
(c) Neither Lessor nor Lessee shall carry separate insurance
concurrent in kind or form or contributing in the event of loss with any
insurance required under this Article XIV, except that Lessor may carry
separate liability insurance at Lessor's sole cost so long as (i) Lessee's
insurance is designated as primary and in no event excess or contributory
to any insurance Lessor may have in force which would apply to a loss
covered under Lessee's policy and (ii) each such insurance policy will not
cause Lessee's insurance required under this Article XIV to be subject to a
coinsurance exception of any kind.
(d) Lessee shall pay as they become due all premiums for the
insurance required by Section 14.1 and Section 14.2, shall renew or replace
each policy prior to the expiration date thereof or otherwise maintain the
coverage required by such Sections without any lapse in coverage.
-14-
ARTICLE XV
15.1 Casualty and Condemnation.
-------------------------
(a) Subject to the provisions of this Article XV and Article XVI (in
the event Lessee delivers, or is obligated to deliver or is deemed to have
delivered, a Termination Notice), and prior to the occurrence and
continuation of a Lease Event of Default, Lessee shall be entitled to
receive (and Lessor hereby irrevocably assigns to Lessee all of Lessor's
right, title and interest in) any award, compensation or insurance proceeds
under Sections 14.2(a) or (b) hereof to which Lessee or Lessor may become
entitled by reason of their respective interests in a Property (i) if all
or a portion of such Property is damaged or destroyed in whole or in part
by a Casualty or (ii) if the use, access, occupancy, easement rights or
title to such Property or any part thereof is the subject of a
Condemnation; provided, however, if a Lease Event of Default shall have
-------- -------
occurred and be continuing or if such award, compensation or insurance
proceeds shall exceed $1,000,000, then such award, compensation or
insurance proceeds shall be paid directly to Lessor or, if received by
Lessee, shall be held in trust for Lessor, and shall be paid over by Lessee
to Lessor and held in accordance with the terms of this paragraph (a). All
amounts held by Lessor hereunder on account of any award, compensation or
insurance proceeds either paid directly to Lessor or turned over to Lessor
shall be held as security for the performance of Lessee's obligations
hereunder and when all such obligations of Lessee with respect to such
matters have been satisfied, all amounts so held by Lessor shall be paid
over to Lessee.
(b) Lessee may appear in any proceeding or action to negotiate,
prosecute, adjust or appeal any claim for any award, compensation or
insurance payment on account of any such Casualty or Condemnation and shall
pay all expenses thereof. At Lessee's reasonable request, and at Lessee's
sole cost and expense, Lessor and the Agent shall participate in any such
proceeding, action, negotiation, prosecution or adjustment. Lessor and
Lessee agree that this Lease shall control the rights of Lessor and Lessee
in and to any such award, compensation or insurance payment.
(c) If Lessee shall receive notice of a Casualty or a possible
Condemnation of a Property or any interest therein where damage to the
affected Property is estimated to equal or exceed Twenty-Five percent (25%)
of the Property Cost of such Property, Lessee shall give notice thereof to
the Lessor and to the Agent promptly after the receipt of such notice. In
such event or in the event that a condemnation award or other compensation
or insurance proceeds in excess of $15,000,000 are received by Lessee or
Lessor in respect of any Casualty or Condemnation, then Lessee shall be
deemed to have delivered a Termination Notice and the provisions of
Sections 16.1 and 16.2 shall apply.
(d) In the event of a Casualty or a Condemnation (regardless of
whether notice thereof must be given pursuant to paragraph (c)), this Lease
shall terminate with respect to the applicable Property in accordance with
Section 16.1 if Lessee, within thirty (30) days after such occurrence,
delivers to Lessor and the Agent a notice to such effect.
-15-
(e) If pursuant to this Section 15.1 this Lease shall continue in
full force and effect following a Casualty or Condemnation with respect to
the affected Property, Lessee shall, at its sole cost and expense and
using, if available, the proceeds of any award, compensation or insurance
with respect to such Casualty or Condemnation (including, without
limitation, any such award, compensation or insurance which has been
received by the Agent and which should be turned over to Lessee pursuant to
the terms of the Operative Agreements, and if not available or sufficient,
using its own funds), promptly and diligently repair any damage to the
applicable Property caused by such Casualty or Condemnation in conformity
with the requirements of Sections 10.1 and 11.1, using the as-built Plans
and Specifications or manufacturer's specifications for the applicable
Improvements or Equipment (as modified to give effect to any subsequent
Modifications, any Condemnation affecting the Property and all applicable
Legal Requirements), so as to restore the applicable Property to
substantially the same condition, operation, function and value as existed
immediately prior to such Casualty or Condemnation. In such event, title to
the applicable Property shall remain with Lessor.
(f) In no event shall a Casualty or Condemnation with respect to
which this Lease remains in full force and effect under this Section 15.1
affect Lessee's obligations to pay Rent pursuant to Section 3.1.
(g) Notwithstanding anything to the contrary set forth in Section
15.1(a) or Section 15.1(e), if during the Term with respect to a Property a
Casualty occurs with respect to such Property or Lessee receives notice of
a Condemnation with respect to such Property, and following such Casualty
or Condemnation, the applicable Property cannot reasonably be restored,
repaired or replaced on or before the earlier of the 180th day prior to the
Expiration Date or the date nine (9) months after the occurrence of such
Casualty or Condemnation to the substantially same condition as existed
immediately prior to such Casualty or Condemnation or on or before such day
such Property is not in fact so restored, repaired or replaced, then Lessee
shall be required to exercise its Purchase Option for such Property on the
next Payment Date (notwithstanding the limits on such exercise contained in
Section 20.2) and pay Lessor the Termination Value for such Property;
provided, if any Default or Event of Default has occurred and is
--------
continuing, Lessee shall also promptly (and in any event within three (3)
Business Days) pay Lessor any award, compensation or insurance proceeds
received on account of any Casualty or Condemnation with respect to any
Property; provided, further, that no Default or Event of Default has
occurred and is continuing, any Excess Proceeds shall be paid to Lessee. If
a Default has occurred and is continuing and any Loans, Holder Funding or
other amounts are owing with respect thereto, then any Excess Proceeds (to
the extent of any such Loans, Holder Funding or other amounts owing with
respect thereto) shall be paid to the Lessor.
(h) The provisions of Section 15.1(a) through 15.1(g) shall not apply
to any Property until after the Basic Term commences with respect to such
Property.
-16-
15.2 Environmental Matters.
---------------------
Promptly upon Lessee's actual knowledge of the presence of Hazardous
Substances in any portion of any Property or Properties in concentrations and
conditions that constitute an Environmental Violation and which, in the
reasonable opinion of Lessee, the cost to undertake any legally required
response, clean up, remedial or other action will or might result in a cost to
Lessee of more than $15,000, Lessee shall notify Lessor in writing of such
condition. In the event of any Environmental Violation (regardless of whether
notice thereof must be given), Lessee shall, not later than thirty (30) days
after Lessee has actual knowledge of such Environmental Violation, either
deliver to Lessor a Termination Notice with respect to the applicable Property
or Properties pursuant to Section 16.1, if applicable, or, at Lessee's sole cost
and expense, promptly and diligently undertake and complete any response, clean
up, remedial or other action (including without limitation, the pursuit by
Lessee of appropriate action against any off-site or third party source for
contamination) necessary to remove, cleanup or remediate the Environmental
Violation in accordance with all Environmental Laws. If Lessee does not deliver
a Termination Notice with respect to such Property pursuant to Section 16.1,
Lessee shall, upon completion of remedial action by Lessee, cause to be prepared
by a reputable environmental consultant acceptable to Lessor a report describing
the Environmental Violation and the actions taken by Lessee (or its agents) in
response to such Environmental Violation, and a statement by the consultant that
the Environmental Violation has been remedied in full compliance with applicable
Environmental Law. Not less than sixty (60) days prior to any time that Lessee
elects to remarket any Property pursuant to Section 20.1 hereof or any other
provision of any Operative Agreement, Lessee shall deliver a Phase I
environmental survey respecting such Property satisfactory in form and substance
to the Lessor. Notwithstanding any other provision of any Operative Agreement,
if Lessee fails to comply with the foregoing obligation regarding the Phase I
environmental survey, Lessee shall be obligated to purchase such Property for
its Termination Value and shall not be permitted to exercise (and Lessor shall
have no obligation to honor any such exercise) any rights under any Operative
Agreement regarding a sale of such Property to a Person other than Lessee or any
Affiliate of Lessee.
15.3 Notice of Environmental Matters.
-------------------------------
Promptly, but in any event within five (5) days from the date Lessee has
actual knowledge thereof, Lessee shall provide to Lessor written notice of any
material pending or threatened claim, action or proceeding involving any
Environmental Law or any Release on or in connection with any Property or
Properties. All such notices shall describe in reasonable detail the nature of
the claim, action or proceeding and Lessee's proposed response thereto. In
addition, Lessee shall provide to Lessor, within five (5) Business Days of
receipt, copies of all material written communications with any Governmental
Authority relating to any Environmental Law in connection with any Property.
Lessee shall also promptly provide such detailed reports of any such material
environmental claims as may reasonably be requested by Lessor.
-17-
ARTICLE XVI
16.1 Termination Upon Certain Events.
-------------------------------
If any of the following occur: (i) Lessee has delivered a notice pursuant
to Section 15.1(d), or is deemed to have delivered such notice pursuant to
Section 15.1(c), then following the applicable Casualty or Condemnation this
Lease shall terminate with respect to the affected Property, or (ii) Lessee has
delivered notice pursuant to the second sentence of Section 15.2 that, due to
the occurrence of an Environmental Violation, this Lease shall terminate with
respect to the affected Property, then Lessee shall be obligated to deliver,
within thirty (30) days of its receipt of notice of the applicable Condemnation
or the occurrence of the applicable Casualty or Environmental Violation, a
written notice to the Lessor in the form described in Section 16.2(a) (a
"Termination Notice") of the termination of this Lease with respect to the
------------------
applicable Property.
16.2 Procedures.
----------
(a) A Termination Notice shall contain: (i) notice of termination of
this Lease with respect to the affected Property on a Payment Date not more
than sixty (60) days after Lessor's receipt of such Termination Notice (the
"Termination Date"); and (ii) a binding and irrevocable agreement of Lessee
----------------
to pay the Termination Value for the applicable Property and purchase such
Property on such Termination Date.
(b) On each Termination Date, Lessee shall pay to Lessor the
Termination Value for the applicable Property, and Lessor shall convey such
Property or the remaining portion thereof, if any, to Lessee (or Lessee's
designee), all in accordance with Section 20.2.
ARTICLE XVII
17.1 Lease Events of Default.
-----------------------
If any one or more of the following events (each a "Lease Event of
--------------
Default") shall occur:
- -------
(a) Lessee shall fail to make payment of (i) any Basic Rent (except
as set forth in clause (ii)) within five (5) days after the same has become
due and payable or (ii) any Termination Value, on the date any such payment
is due, or any payment of Basic Rent or Supplemental Rent due on the due
date of any such payment of Termination Value, or any amount due on the
Expiration Date;
(b) Lessee shall fail to make payment of any Supplemental Rent
(other than Supplemental Rent referred to in Section 17(a)(ii)) within five
(5) days after notice that such payment is due and payable or the Guarantor
shall fail to make any payment of any
-18-
amount under any Operative Agreement which has become due and payable
(subject to any applicable grace period) after receipt of notice that such
payment is due;
(c) Lessee shall fail to maintain insurance as required by Article
XIV of this Lease;
(d) Lessee shall fail to observe or perform any material term,
covenant or condition of Lessee under this Lease (including without
limitation the Incorporated Covenants) or any other Operative Agreement to
which Lessee is a party other than those set forth in Sections 17.1(a), (b)
or (c) hereof, or the Guarantor shall fail to observe or perform any term,
covenant, obligation or condition of the Guarantor under any Operative
Agreement other than those set forth in Section 17.1(b) hereof, or any
representation or warranty made by Lessee or the Guarantor set forth in
this Lease (including without limitation the Incorporated Representations
and Warranties) or in any other Operative Agreement or in any document
entered into in connection herewith or therewith or in any document,
certificate or financial or other statement delivered in connection
herewith or therewith shall be false or inaccurate in any material way,
and, to the extent such failure, misrepresentation or breach of warranty is
capable of being cured, such failure, misrepresentation or breach of
warranty shall remain uncured for a period of fifteen (15) days after the
Lessee or the Guarantor has reason to know or notice thereof; provided,
that if such failure, misrepresentation or breach is not capable of being
cured or if there is no cure period for breach of the Incorporated
Representations and Warranties or Incorporated Covenants in the Capital One
Credit Agreement or any New Facility the grace period referred to in this
subclause (d) shall not apply;
(e) An Agency Agreement Event of Default shall have occurred and be
continuing;
(f) [Intentionally Omitted]
(g) [Intentionally Omitted];
(h) The liquidation or dissolution of the Construction Agent or any
Credit Party, or the suspension of the business of the Construction Agent
or any Credit Party, or the filing by the Construction Agent or any Credit
Party of a voluntary petition or an answer seeking reorganization,
arrangement, readjustment of its debts or for any other relief under the
United States Bankruptcy Code, as amended, or under any other insolvency
act or law, state or federal, now or hereafter existing, or any other
action of the Construction Agent or any Credit Party indicating its consent
to, approval of or acquiescence in, any such petition or proceeding; the
application by the Construction Agent or any Credit Party for, or the
appointment by consent or acquiescence of the Construction Agent or any
Credit Party of a receiver, a trustee or a custodian of the Construction
Agent or any Credit Party for all or a substantial part of its property;
the making by the Construction Agent or any Credit Party of any assignment
for the benefit of creditors; the inability of the Construction Agent or
any Credit Party or the admission
-19-
by the Construction Agent or any Credit Party in writing of its inability
to pay its debts as they mature; or the Construction Agent or any Credit
Party taking any corporate action to authorize any of the foregoing;
(i) The filing of an involuntary petition against the Construction
Agent or any Credit Party in bankruptcy or seeking reorganization,
arrangement, readjustment of its debts or for any other relief under the
United States Bankruptcy Code, as amended, or under any other insolvency
act or law, state or federal, now or hereafter existing; or the involuntary
appointment of a receiver, a trustee or a custodian of the Construction
Agent or any Credit Party for all or a substantial part of its property; or
the issuance of a warrant of attachment, execution or similar process
against any substantial part of the property of the Construction Agent or
any Credit Party, and the continuance of any of such events for ninety (90)
days undismissed or undischarged;
(j) The adjudication of the Construction Agent or any Credit Party
as bankrupt or insolvent;
(k) The entering of any order in any proceedings against the
Construction Agent or any Credit Party decreeing the dissolution,
divestiture or split-up of the Construction Agent or any Credit Party, and
such order remains in effect for more than sixty (60) days;
(l) Any material report, certificate, financial statement or other
instrument delivered to Lessor by or on behalf of the Construction Agent or
any Credit Party pursuant to the terms of this Lease or any other Operative
Agreement is false or misleading in any material respect when made or
delivered;
(m) Any Capital One Credit Agreement Event of Default (other than a
Capital One Credit Agreement Event of Default attributable solely to
Capital One, F.S.B.) or an event of default under any New Facility (other
than an event of default under such New Facility attributable solely to
Capital One, F.S.B.) shall have occurred and be continuing and shall not
have been waived by the Majority Lenders;
(n) The Construction Agent or any Credit Party or any Subsidiary of
the Construction Agent or any Credit Party shall default (beyond applicable
periods of grace and/or notice and cure) in the payment when due of any
principal of or interest on any Indebtedness having an outstanding
principal amount of at least $50,000,000; or any other event or condition
shall occur which results in a default of any such Indebtedness or enables
the holder of any such Indebtedness or any Person acting on such holder's
behalf to accelerate the maturity thereof;
(o) Any Operative Agreement shall cease to be in full force and
effect;
(p) The Guarantor shall default in the due performance or observance
of any term, covenant or agreement on its part to be performed or observed
pursuant to the
-20-
guaranty set forth in Section 8B of the Participation Agreement or if any
material provision of the guaranty set forth in Section 8B of the
Participation Agreement shall cease to be in full force and effect; or
(q) Any default or event of default under that certain Lease
Agreement (Capital One Realty, Inc.) (Tax Retention Operating Lease) dated
as of September 3, 1999 between First Security Bank, National Association,
not individually, but solely as Owner Trustee under the Capital One Realty
Trust 1998-1, as lessor and Capital One Realty, Inc., as lessee, shall have
occurred and be continuing and shall not have been waived;
then, in any such event Lessor may, in addition to the other rights
and remedies provided for in this Article XVII and in Section 18.1,
terminate this Lease by giving Lessee five (5) days notice of such
termination, and this Lease shall terminate, and all rights of Lessee under
this Lease shall cease. Lessee shall, to the fullest extent permitted by
law, pay as Supplemental Rent all costs and expenses incurred by or on
behalf of Lessor, including without limitation reasonable fees and expenses
of counsel, as a result of any Lease Event of Default hereunder.
17.2 Surrender of Possession.
-----------------------
If a Lease Event of Default shall have occurred and be continuing, and
whether or not this Lease shall have been terminated pursuant to Section 17.1,
Lessee shall, upon thirty (30) days written notice, surrender to Lessor
possession of the Properties. Lessor may enter upon and repossess the
Properties by such means as are available at law or in equity, and may remove
Lessee and all other Persons and any and all personal property and Lessee's
equipment and personalty and severable Modifications from the Properties.
Lessor shall have no liability by reason of any such entry, repossession or
removal performed in accordance with applicable law. Upon the written demand of
Lessor, Lessee shall return the Properties promptly to Lessor, in the manner and
condition required by, and otherwise in accordance with the provisions of,
Section 22.1(c) hereof.
17.3 Reletting.
---------
If a Lease Event of Default shall have occurred and be continuing, and
whether or not this Lease shall have been terminated pursuant to Section 17.1,
Lessor may, but shall be under no obligation to, relet any or all of the
Properties, for the account of Lessee or otherwise, for such term or terms
(which may be greater or less than the period which would otherwise have
constituted the balance of the Term) and on such conditions (which may include
concessions or free rent) and for such purposes as Lessor may determine, and
Lessor may collect, receive and retain the rents resulting from such reletting.
Lessor shall not be liable to Lessee for any failure to relet any Property or
for any failure to collect any rent due upon such reletting.
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17.4 Damages.
-------
Neither (a) the termination of this Lease as to all or any of the
Properties pursuant to Section 17.1; (b) the repossession of all or any of the
Properties; nor (c) the failure of Lessor to relet all or any of the Properties,
the reletting of all or any portion thereof, nor the failure of Lessor to
collect or receive any rentals due upon any such reletting, shall relieve Lessee
of its liabilities and obligations hereunder, all of which shall survive any
such termination, repossession or reletting. If any Lease Event of Default
shall have occurred and be continuing and notwithstanding any termination of
this Lease pursuant to Section 17.1, Lessee shall forthwith pay to Lessor all
Rent and other sums due and payable hereunder to and including the date of such
termination. Thereafter, on the days on which the Basic Rent or Supplemental
Rent, as applicable, are payable under this Lease or would have been payable
under this Lease if the same had not been terminated pursuant to Section 17.1
and until the end of the Term hereof or what would have been the Term in the
absence of such termination, Lessee shall pay Lessor, as current liquidated
damages (it being agreed that it would be impossible accurately to determine
actual damages) an amount equal to the Basic Rent and Supplemental Rent that are
payable under this Lease or would have been payable by Lessee hereunder if this
Lease had not been terminated pursuant to Section 17.1, less the net proceeds,
if any, which are actually received by Lessor with respect to the period in
question of any reletting of any Property or any portion thereof; provided that
--------
Lessee's obligation to make payments of Basic Rent and Supplemental Rent under
this Section 17.4 shall continue only so long as Lessor shall not have received
the amounts specified in Section 17.6. In calculating the amount of such net
proceeds from reletting, there shall be deducted all of Lessor's, any Holder's,
the Agent's and any Lender's reasonable expenses in connection therewith,
including repossession costs, brokerage or sales commissions, fees and expenses
for counsel and any necessary repair or alteration costs and expenses incurred
in preparation for such reletting. To the extent Lessor receives any damages
pursuant to this Section 17.4, such amounts shall be regarded as amounts paid on
account of Rent. Lessee specifically acknowledges and agrees that its
obligations under this Section 17.4 shall be absolute and unconditional under
any and all circumstances and shall be paid and/or performed, as the case may
be, without notice or demand and without any abatement, reduction, diminution,
setoff, defense, counterclaim or recoupment whatsoever.
17.5 Power of Sale.
-------------
Without limiting any other remedies set forth in this Lease, in the event
that a court of competent jurisdiction rules that this Lease constitutes a
mortgage, deed of trust or other secured financing as is the intent of the
parties, then the Lessor and the Lessee agree that the Lessee has granted,
pursuant to Section 7.1(b) hereof and each Lease Supplement, a Lien against the
Properties WITH POWER OF SALE, and that, upon the occurrence and during the
continuance of any Lease Event of Default, the Lessor shall have the power and
authority, to the extent provided by law, after prior notice and lapse of such
time as may be required by law, to foreclose its interest (or cause such
interest to be foreclosed) in all or any part of the Properties.
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17.6 Final Liquidated Damages.
------------------------
If a Lease Event of Default shall have occurred and be continuing, whether
or not this Lease shall have been terminated pursuant to Section 17.1 and
whether or not Lessor shall have collected any current liquidated damages
pursuant to Section 17.4, Lessor shall have the right to recover, by demand to
Lessee and at Lessor's election, and Lessee shall pay to Lessor, as and for
final liquidated damages, but exclusive of the indemnities payable under Section
13 of the Participation Agreement, and in lieu of all current liquidated damages
beyond the date of such demand (it being agreed that it would be impossible
accurately to determine actual damages) the Termination Value. Upon payment of
the amount specified pursuant to the first sentence of this Section 17.6, Lessee
shall be entitled to receive from Lessor, either at Lessee's request or upon
Lessor's election, in either case at Lessee's cost, an assignment of Lessor's
entire right, title and interest in and to the Properties, the Improvements,
Fixtures, Modifications and Equipment and any insurance or condemnation proceeds
in connection therewith, in each case in recordable form and otherwise in
conformity with local custom and free and clear of the Lien of this Lease
(including the release of any memorandum of Lease and Lease Supplement recorded
in connection therewith) and any Lessor Liens. The Properties shall be conveyed
to Lessee "AS IS" and in their then present physical condition. If any statute
or rule of law shall limit the amount of such final liquidated damages to less
than the amount agreed upon, Lessor shall be entitled to the maximum amount
allowable under such statute or rule of law; provided, however, Lessee shall not
-------- -------
be entitled to receive an assignment of Lessor's interest in the Properties, the
Improvements, Fixtures, Modifications or Equipment or documents unless Lessee
shall have paid in full the Termination Value. Lessee specifically acknowledges
and agrees that its obligations under this Section 17.4 shall be absolute and
unconditional under any and all circumstances and shall be paid and/or
performed, as the case may be, without notice or demand and without any
abatement, reduction, diminution, setoff, defense, counterclaim or recoupment
whatsoever.
17.7 Lessee's Purchase Option During Default.
---------------------------------------
If Lessee exercises its option to purchase a Property in accordance with
Section 20.2 (without regard to the limitation contained in the first sentence
of Section 20.2 regarding the absence of Lease Events of Default) within five
(5) days of the occurrence of a Lease Event of Default, the purchase of the
applicable Property within such five (5) day period shall be deemed to have
cured such Lease Event of Default to the extent such Lease Event of Default is
no longer continuing with respect to any other Property remaining subject to
this Lease after purchase of the Property in connection with the exercise of the
purchase option.
17.8 Waiver of Certain Rights.
------------------------
If this Lease shall be terminated pursuant to Section 17.1, Lessee waives,
to the fullest extent permitted by law, (a) any notice of re-entry or the
institution of legal proceedings to obtain re-entry or possession; (b) any right
of redemption, re-entry or possession; (c) the benefit of any laws now or
hereafter in force exempting property from liability for rent or for debt; and
(d) any other rights which might otherwise limit or modify any of Lessor's
rights or remedies under this Article XVII.
-23-
17.9 Assignment of Rights Under Contracts.
------------------------------------
If a Lease Event of Default shall have occurred and be continuing, and
whether or not this Lease shall have been terminated pursuant to Section 17.1,
Lessee shall upon Lessor's demand immediately assign, transfer and set over to
Lessor all of Lessee's right, title and interest in and to each agreement
executed by Lessee in connection with the purchase, construction, development,
use or operation of the Properties (including, without limitation, all right,
title and interest of Lessee with respect to all warranty, performance, service
and indemnity provisions), as and to the extent that the same relate to the
purchase, construction, use and operation of the Properties.
17.10 Remedies Cumulative.
-------------------
The remedies herein provided shall be cumulative and in addition to (and
not in limitation of) any other remedies available at law, equity or otherwise,
including, without limitation, any mortgage foreclosure remedies.
ARTICLE XVIII
18.1 Lessor's Right to Cure Lessee's Lease Defaults.
----------------------------------------------
Lessor, without waiving or releasing any obligation or Lease Event of
Default, may (but shall be under no obligation to) remedy any Lease Event of
Default for the account and at the sole cost and expense of Lessee, including
the failure by Lessee to maintain the insurance required by Article XIV, and
may, to the fullest extent permitted by law, and notwithstanding any right of
quiet enjoyment in favor of Lessee, enter upon any Property, or real property
owned or leased by Lessee and take all such action thereon as may be necessary
or appropriate therefor. No such entry shall be deemed an eviction of any
lessee. All out-of-pocket costs and expenses so incurred (including without
limitation fees and expenses of counsel), together with interest thereon at the
Overdue Rate from the date on which such sums or expenses are paid by Lessor,
shall be paid by Lessee to Lessor on demand.
ARTICLE XIX
19.1 Provisions Relating to Lessee's Exercise of its Purchase Option.
---------------------------------------------------------------
Subject to Section 19.2, in connection with any termination of this Lease
with respect to the Property pursuant to the terms of Section 16.2, or in
connection with Lessee's exercise of its Purchase Option, upon the date on which
this Lease is to terminate with respect to the Property, and upon tender by
Lessee of the amounts set forth in Sections 16.2(b) or 20.2, as applicable,
Lessor shall execute and deliver to Lessee (or to Lessee's designee) at Lessee's
cost and expense an assignment of Lessor's entire interest in the Property, in
each case in recordable form and
-24-
otherwise in conformity with local custom and free and clear of any Lessor Liens
attributable to Lessor but without any other warranties (of title or otherwise)
from the Lessor. The Property shall be conveyed to Lessee "AS IS" "WHERE IS" and
in then present physical condition.
19.2 No Purchase or Termination With Respect to Less than All of a
-------------------------------------------------------------
Property.
- --------
Lessee shall not be entitled to exercise its Purchase Option or the Sale
Option separately with respect to any Property consisting of Land, Equipment
and/or Improvements but shall be required to exercise its Purchase Option or the
Sale Option with respect to an entire Property.
ARTICLE XX
20.1 Purchase Option or Sale Option-General Provisions.
-------------------------------------------------
Not less than 120 days and no more than 180 days prior to the Expiration
Date or any Payment Date after the Basic Term has commenced for all Properties,
Lessee may give Lessor and Agent irrevocable written notice (the "Election
--------
Notice") that Lessee is electing to exercise either (a) the option to purchase
- ------
all the Properties on the Expiration Date or on the Payment Date specified in
the Election Notice or, in accordance with the Individual Property Sale
Requirements, the option to purchase one or more, but less than all, the
Properties on the Payment Date specified in the Election Notice for such
purchase (the "Purchase Option") or (b) with respect to an Election Notice given
---------------
in connection with the Expiration Date only, the option to remarket all, but not
less than all, the Properties to a Person other than Lessee or any Affiliate of
Lessee and cause a sale of such Properties to occur on the Expiration Date
pursuant to the terms of Section 22.1 (the "Sale Option"). Regarding the
-----------
purchase of one or more, but less than all, the Properties, at Lessee's option
and without the consent of any Financing Party, Lessee may provide irrevocable
written notice to Lessor not less than one hundred twenty (120) days and no more
than one hundred eighty days prior to any Payment Date that Lessee desires to
purchase one or more, but less than all, of the Properties, if (i) the Lessee
shall have provided an Appraisal demonstrating that the Properties remaining in
the Trust and leased to Lessee pursuant to this Lease and subject to the
guaranty by Capital One Financial Corporation shall have a Fair Market Sale
Value of 75% or more of the Property Cost allocable to such remaining Properties
and (ii) on the date of such Election Notice and at the time of sale to Lessee
of such Property, no Default or Event of Default shall have occurred and be
continuing (other than those that will be cured by the payment of the
Termination Value for such Property pursuant to Section 17.7) (the terms
referenced in the foregoing subsections (i) and (ii) may be referred to as the
"Individual Property Sale Requirements"). To the extent the Individual Property
-------------------------------------
Sale Requirements are satisfied, Lessor shall sell such Property to Lessee. If
Lessee does not give an Election Notice indicating the Purchase Option or the
Sale Option at least 120 days and not more than 180 days prior to the Expiration
Date, then, unless such Expiration Date is the final Expiration Date to which
the Term may be extended, the Term of this Lease shall be extended in accordance
with Section 2.2 hereof; if such Expiration Date is the final Expiration Date,
then Lessee shall be deemed to have elected the Purchase Option with respect to
all the Properties. If Lessee shall elect the Sale Option and fail to cause the
Properties to be sold or surrendered to Lessor at
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Lessor's option in accordance with the terms of Section 22.1 on the Expiration
Date, then Lessee shall be deemed to have elected to exercise the Purchase
Option (on the Sale Date) as set forth above. If Lessee shall elect (or is
deemed to have elected) to exercise the Purchase Option, then Lessee shall pay
to Lessor on the date on which such purchase is to occur an amount equal to the
Termination Value for all of the Properties (which the parties do not intend to
be a "bargain" purchase), and, upon receipt of such amount, Lessor shall
transfer to Lessee all of Lessor's right, title and interest in and to the
Properties in accordance with Section 20.2.
20.2 Lessee Purchase Option.
----------------------
Provided no Default or Event of Default shall have occurred and be
continuing (subject to Section 17.7) and provided that the Election Notice has
been appropriately given specifying the Purchase Option, Lessee shall purchase
all of the Properties (or, if applicable, and upon satisfaction of all
Individual Property Sale Requirements, one or more, but less than all, of the
Properties pursuant to a notice provided in accordance with Section 20.1) on the
Expiration Date or Payment Date (all as specified in the Election Notice) at a
price equal to the Termination Value for such Properties (which the parties do
not intend to be a "bargain" purchase price).
Subject to Section 19.2, in connection with any termination of this Lease
with respect to any Property pursuant to the terms of Section 16.2, or in
connection with Lessee's exercise of its Purchase Option, upon the date on which
this Lease is to terminate with respect to a Property or all of the Properties,
and upon tender by Lessee of the amounts set forth in Section 16.2(b) or this
Section 20.2, as applicable, Lessor shall execute, acknowledge (where required)
and deliver to Lessee, at Lessee's cost and expense, each of the following: (i)
a special or limited warranty Deed or a Bargain and Sale Deed conveying the
Property (to the extent it is real property) to Lessee free and clear of the
Lien of this Lease, the Lien of the Credit Documents and any Lessor Liens; (ii)
a Bill of Sale conveying the Property (to the extent it is personal property) to
Lessee free and clear of the Lien of this Lease, the Lien of the Credit
Documents and any Lessor Liens; (iii) any real estate tax affidavit or other
document required by law to be executed and filed in order to record the Deed;
and (iv) a FIRPTA affidavit. The applicable Property, together with any
insurance or condemnation proceeds with respect to such Property, shall be
conveyed to Lessee "AS IS" "WHERE IS" and in then present physical condition.
If any Property is the subject of remediation efforts respecting Hazardous
Substances at the Expiration Date which could materially and adversely impact
the Fair Market Sales Value of such Property, then Lessee shall be obligated to
repurchase each such Property pursuant to Section 20.2.
20.3 Third Party Sale Option.
-----------------------
(a) Provided no Default or Event of Default shall have occurred and
be continuing and provided that the Election Notice has been appropriately
given specifying the Sale Option, Lessee shall undertake to cause a sale of
the Properties on the Expiration Date (all as specified in the Election
Notice) in accordance with the provisions of Section 22.1 hereof.
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(b) In the event the Lessee exercises the Sale Option then, as soon
as practicable and in all events prior to the Expiration Date, the Lessee
at its expense shall cause to be delivered to Lessor an environmental site
assessment or an update to a prior environmental site assessment for each
of the Properties recently prepared (no later than 30 days old) by an
independent recognized professional acceptable to Lessor and the Agent and
in form, scope and content satisfactory to Lessor and the Agent. In the
event that Lessor and the Agent shall not have received such environmental
assessment by the Expiration Date or in the event that such environmental
assessment shall reveal the existence of any material violation of
Environmental Laws, other material Environmental Violation or potential
material Environmental Violation (with materiality determined in each case
in Lessor's sole discretion), then Lessee on the Expiration Date shall pay
to Lessor an amount equal to the Termination Value for all of the
Properties and any and all other amounts due and owing hereunder. Upon
receipt of such payment and all other amounts due under the Lease, Lessor
shall transfer to Lessee all of Lessor's right, title and interest in and
to the Properties in accordance with Section 19.1.
ARTICLE XXI
21.1 [Intentionally Omitted]
ARTICLE XXII
22.1 Sale Procedure.
--------------
(a) During the Marketing Period, Lessee, on behalf of the Lessor,
shall obtain bids for the cash purchase of the Properties in connection
with a sale to one or more purchasers to be consummated on the Expiration
Date (the "Sale Date") for the highest price available, shall notify Lessor
---------
promptly of the name and address of each prospective purchaser and the cash
price which each prospective purchaser shall have offered to pay for each
such Property and shall provide Lessor with such additional information
about the bids and the bid solicitation procedure as Lessor may reasonably
request from time to time. All such prospective purchasers must be Persons
other than Lessee or any Affiliate of Lessee. On the Sale Date unless such
amounts have been otherwise paid at such time, Lessee shall pay (or cause
to be paid) to Lessor the sum of all costs and expenses referred to in
clause FIRST of Section 22.2, all Rent and all other amounts then due and
payable or accrued under this Lease and/or any other Operative Agreement.
Lessor may reject any and all bids and may assume sole responsibility
for obtaining bids by giving Lessee written notice to that effect;
provided, however, that notwithstanding the foregoing, Lessor may not
-------- -------
reject the bids submitted by the Lessee if such bids, in the aggregate, are
greater than or equal to the sum of the Limited Recourse Amount for the
Properties, plus all costs and expenses referred to in clause FIRST of
-27-
Section 22.2 and represent bona fide offers from one or more third party
purchasers. If the Lessor rejects any and all bids pursuant to this Section
22.1 or if there are no bids, Lessee shall surrender, or cause to be
surrendered, each of the Properties in accordance with the terms and
conditions of Section 10.1.
Unless Lessor shall have elected to retain the Properties pursuant to
the provisions of the final sentence of the preceding paragraph, Lessee
shall arrange for Lessor to sell the Properties free and clear of the Lien
of this Lease and any Lessor Liens attributable to it, without recourse or
warranty (of title or otherwise), for cash on the Sale Date to the
purchaser or purchasers identified by Lessee or Lessor, as the case may be;
provided, however, solely as to Lessor or the Trust Company, in its
-------- -------
individual capacity, any Lessor Lien shall not constitute a Lessor Lien so
long as Lessor or the Trust Company, in its individual capacity, is
diligently contesting such Lessor Lien by appropriate proceedings. To
effect such transfer and assignment, Lessor shall execute, acknowledge
(where required) and deliver to the appropriate purchaser each of the
following: (i) a special or limited warranty Deed conveying the Properties
(to the extent they are real property) to the appropriate purchaser free
and clear of the Lien of this Lease, the Lien of the Credit Documents and
any Lessor Liens; (ii) a Bill of Sale conveying the Properties (to the
extent it is personal property) to the appropriate purchaser free and clear
of the Lien of this Lease, the Lien of the Credit Documents and any Lessor
Liens; (iii) any real estate tax affidavit or other document required by
law to be executed and filed in order to record the Deed; and (iv) a FIRPTA
affidavit. Lessee shall surrender the Properties so sold or subject to such
documents to each purchaser in the condition specified in Section 10.1.
Lessee shall not take or fail to take any action which would have the
effect of unreasonably discouraging bona fide third party bids for any
Property. If each of the Properties is not either (i) sold on the Sale Date
in accordance with the terms of this Section 22.1, or (ii) retained by the
Lessor pursuant to the second paragraph of this Section 22.1(a), then the
Lessee shall be deemed to have elected the Purchase Option pursuant to
Section 20.1.
(b) If the Properties are sold on a Sale Date to one or more third
party purchasers in accordance with the terms of Section 22.1(a) and the
aggregate purchase price paid for the Properties is less than the sum of
the aggregate Property Cost for the Properties (hereinafter such difference
shall be referred to as the "Deficiency Balance"), then the Lessee hereby
------------------
unconditionally promises to pay to the Lessor on the Sale Date all Rent
(other than the Termination Value and the Maximum Residual Guarantee
Amount) and all other amounts then due and owing pursuant to the Operative
Agreements and the lesser of (i) the Deficiency Balance, or (ii) the
Maximum Residual Guarantee Amount for all of the Properties. If the
Properties are retained by the Lessor pursuant to an affirmative election
made by the Lessor pursuant to the provisions of Section 22.1(a), then the
Lessee hereby unconditionally promises to pay to the Lessor on the Sale
Date all Rent (other than the Termination Value and the Maximum Residual
Guarantee Amount) and all other amounts then due and owing pursuant to the
Operative Agreements and an amount equal to the Maximum Residual Guarantee
Amount for the Properties.
-28-
(c) In the event that the Properties are either sold to one or more
third party purchasers on the Sale Date or retained by the Lessor in
connection with an affirmative election made by the Lessor pursuant to the
provisions of Section 22.1(a), then in either case on the applicable Sale
Date, to the extent in Lessee's possession or reasonable control, the
Lessee shall provide Lessor or such third party purchaser with (i) all
permits, certificates of occupancy, governmental licenses and
authorizations necessary to use and operate each such Property for its
intended purposes, (ii) such easements, licenses, rights-of-way and other
rights and privileges in the nature of an easement as are reasonably
necessary or desirable in connection with the use, repair, access to or
maintenance of each such Property for its intended purpose or otherwise as
the Lessor shall reasonably request, and (iii) a services agreement
covering such services as Lessor or such third party purchaser may request
in order to use and operate each such Property for its intended purposes at
such rates (not in excess of arm's-length fair market rates) as shall be
acceptable to Lessee and Lessor or such third party purchaser. All
assignments, licenses, easements, agreements and other deliveries required
by clauses (i) and (ii) of this paragraph (c) shall be in form reasonably
satisfactory to the Lessor or such third party purchaser, as applicable,
and shall be fully assignable (including both primary assignments and
assignments given in the nature of security) without payment of any fee,
cost or other charge.
22.2 Application of Proceeds of Sale.
-------------------------------
The Lessor shall apply the proceeds of sale of any Property in the
following order of priority:
(i) FIRST, to pay or to reimburse Lessor for the payment of all
-----
reasonable costs and expenses incurred by Lessor in connection with the
sale;
(ii) SECOND, so long as the Credit Agreement is in effect and
------
any Holder Fundings or any amount is owing to the Holders under any
Operative Agreement, to the Agent to be applied pursuant to inter-creditor
provisions between the Lenders and the Holders contained in the Operative
Agreements; and
(iii) THIRD, to the Lessee.
-----
22.3 Indemnity for Excessive Wear.
----------------------------
If the proceeds of the sale described in Section 22.1 with respect to the
Properties, less all expenses incurred by Lessor in connection with such sale,
shall be less than the Limited Recourse Amount with respect to the Properties,
and at the time of such sale it shall have been reasonably determined (pursuant
to the Appraisal Procedure) that the Fair Market Sales Value of the Properties,
shall have been impaired by greater than expected wear and tear during the term
of the Lease, Lessee shall pay to Lessor within ten (10) days after receipt of
Lessor's written statement (i) the amount of such excess wear and tear
determined by the Appraisal Procedure or (ii) the amount of the Net Sale
Proceeds Shortfall, whichever amount is less.
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22.4 Appraisal Procedure.
-------------------
For determining the Fair Market Sales Value of the Properties or any other
amount which may, pursuant to any provision of any Operative Agreement, be
determined by an appraisal procedure, Lessor and Lessee shall use the following
procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to
-------------------
reach a mutual agreement as to such amount for a period of ten (10) days from
commencement of the Appraisal Procedure under the applicable section of the
Lease, and if they cannot agree within ten (10) days, then two qualified
appraisers, one chosen by Lessee and one chosen by Lessor, shall mutually agree
thereupon, but if either party shall fail to choose an appraiser within twenty
(20) days after notice from the other party of the selection of its appraiser,
then the appraisal by such appointed appraiser shall be binding on Lessee and
Lessor. If the two appraisers cannot agree within twenty (20) days after both
shall have been appointed, then a third appraiser shall be selected by the two
appraisers or, failing agreement as to such third appraiser within (30) days
after both shall have been appointed, by the American Arbitration Association.
The decisions of the three appraisers shall be given within twenty (20) days of
the appointment of the third appraiser and the decision of the appraiser most
different from the average of the other two shall be discarded and such average
shall be binding on Lessor and Lessee; provided that if the highest appraisal
--------
and the lowest appraisal are equidistant from the third appraisal, the third
appraisal shall be binding on Lessor and Lessee. The fees and expenses of the
appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of
the appraiser appointed by Lessor shall be paid by Lessor (such fees and
expenses not being indemnified pursuant to Section 13 of the Participation
Agreement); and the fees and expenses of the third appraiser shall be divided
equally between Lessee and Lessor.
22.5 Certain Obligations Continue.
----------------------------
During the Marketing Period, the obligation of Lessee to pay Rent with
respect to the Properties (including the installment of Basic Rent due on the
Expiration Date) shall continue undiminished until payment in full to Lessor of
the sale proceeds, if any, the Maximum Residual Guarantee Amount or portion
thereof payable under Section 22.1(b), the amount due under Section 22.3, if
any, and all other amounts due to Lessor with respect to all Properties. Lessor
shall have the right, but shall be under no duty, to solicit bids, to inquire
into the efforts of Lessee to obtain bids or otherwise to take action in
connection with any such sale, other than as expressly provided in this Article
XXII.
ARTICLE XXIII
23.1 Holding Over.
------------
If Lessee shall for any reason remain in possession of a Property after the
expiration or earlier termination of this Lease as to such Property (unless such
Property is conveyed to Lessee), such possession shall be as a tenancy at
sufferance during which time Lessee shall continue to pay Supplemental Rent that
would be payable by Lessee hereunder were the Lease
-30-
then in full force and effect with respect to the Property and Lessee shall
continue to pay Basic Rent at 110% of the Basic Rent that would otherwise be due
and payable at such time. Such Basic Rent shall be payable from time to time
upon demand by Lessor and such additional 10% amount shall be applied by the
Lessor to the payment of the Loans pursuant to the Credit Agreement and the
Holder Fundings pursuant to the Trust Agreement pro rata between the Loans and
the Holder Fundings. During any period of tenancy at sufferance, Lessee shall,
subject to the second preceding sentence, be obligated to perform and observe
all of the terms, covenants and conditions of this Lease, but shall have no
rights hereunder other than the right, to the extent given by law to tenants at
sufferance, to continue their occupancy and use of such Property. Nothing
contained in this Article XXIII shall constitute the consent, express or
implied, of Lessor to the holding over of Lessee after the expiration or earlier
termination of this Lease as to any Property (unless such Property is conveyed
to Lessee) and nothing contained herein shall be read or construed as preventing
Lessor from maintaining a suit for possession of such Property or exercising any
other remedy available to Lessor at law or in equity.
ARTICLE XXIV
24.1 Risk of Loss.
-------------
During the Term, unless Lessee shall not be in actual possession of the
Property in question solely by reason of Lessor's exercise of its remedies of
dispossession under Article XVII, the risk of loss or decrease in the enjoyment
and beneficial use of such Property as a result of the damage or destruction
thereof by fire, the elements, casualties, thefts, riots, wars or otherwise is
assumed by Lessee, and Lessor shall in no event be answerable or accountable
therefor.
ARTICLE XXV
25.1 Assignment.
----------
(a) Lessee may not assign this Lease or any of its rights or
obligations hereunder in whole or in part to any Person other than COFC or
a Wholly-Owned Subsidiary of COFC without the prior written consent of the
Agent and the Lessor.
(b) No assignment (referenced in this Section 25.1 or otherwise) or
other relinquishment of possession to any Property shall in any way
discharge or diminish any of the obligations of Lessee to Lessor hereunder
and Lessee shall remain directly and primarily liable under this Lease as
to any assignment regarding this Lease.
25.2 Subleases.
---------
(a) Promptly following the execution and delivery of any sublease
permitted by this Article XXV, Lessee shall notify Lessor and the Agent of
the execution of such
-31-
sublease. As of the date of each Lease Supplement, Lessee shall lease the
respective Properties described in such Lease Supplement from Lessor, and
there shall be no existing tenant respecting such Property other than the
Lessee, except to the extent such sublease is permitted under subsection
(b) of this Section 25.2.
(b) Upon written notice to the Financing Parties and subject to the
provisions of Section 25.2(c), Lessee may sublet any Property or portion
thereof (i) to any Person so long as the sublease shall be expressly
subject and subordinate to this Lease, the term of the sublease does not
extend beyond the Term of this Lease and the sublease is on fair market
terms and at a fair market rental, or (ii) to COFC or a Wholly-Owned
Subsidiary of COFC or to an Affiliate or Subsidiary of the Lessee. No
other subleases shall be permitted unless consented to in writing by the
Lessor.
(c) No sublease (referenced in this Section 25.2 or otherwise) or
other relinquishment of possession to any Property shall in any way
discharge or diminish any of Lessee's obligations to Lessor hereunder and
Lessee shall remain directly and primarily liable under this Lease as to
the Property, or portion thereof, so sublet.
ARTICLE XXVI
26.1 No Waiver.
---------
No failure by Lessor or Lessee to insist upon the strict performance of any
term hereof or to exercise any right, power or remedy upon a default hereunder,
and no acceptance of full or partial payment of Rent during the continuance of
any such default, shall constitute a waiver of any such default or of any such
term. To the fullest extent permitted by law, no waiver of any default shall
affect or alter this Lease, and this Lease shall continue in full force and
effect with respect to any other then existing or subsequent default.
ARTICLE XXVII
27.1 Acceptance of Surrender.
-----------------------
No surrender to Lessor of this Lease or of all or any portion of any
Property or of any part of any thereof or of any interest therein shall be valid
or effective unless agreed to and accepted in writing by Lessor and the Agent
and, prior to the payment or performance of all obligations under the Credit
Documents, the Agent, and no act by Lessor or the Agent or any representative or
agent of Lessor or the Agent, other than a written acceptance, shall constitute
an acceptance of any such surrender.
27.2 No Merger of Title.
------------------
There shall be no merger of this Lease or of the leasehold estate created
hereby by reason of the fact that the same Person may acquire, own or hold,
directly or indirectly, in whole or in
-32-
part, (a) this Lease or the leasehold estate created hereby or any interest in
this Lease or such leasehold estate, (b) any right, title or interest in any
Property, (c) any Notes, or (d) a beneficial interest in Lessor.
ARTICLE XXVIII
28.1 Incorporation of Covenants.
--------------------------
Reference is made to that certain Second Amended and Restated Credit
Agreement dated as of May 25, 1999 (the "Capital One Credit Agreement") among
COFC, Capital One Bank and Capital One, F.S.B., as borrowers, The Chase
Manhattan Bank, as Administrative Agent and the other financial institutions
party thereto. Further reference is made to the representations and warranties
of the Guarantor contained in Section 7 of the Capital One Credit Agreement
other than the representations contained in Sections 7.04, 7.05, 7.06 and 7.13
(hereinafter referred to as the "Incorporated Representations and Warranties")
and the covenants of the Guarantor contained in Section 8 of the Capital One
Credit Agreement (hereinafter referred to as the "Incorporated Covenants"). The
----------------------
Lessee agrees with the Lessor that the Incorporated Representations and
Warranties and the Incorporated Covenants (and all other relevant provisions of
the Capital One Credit Agreement related thereto, including specifically without
limitation the defined terms contained in Section 1 thereof which are used in
the Incorporated Representations and Warranties and the Incorporated Covenants)
are hereby incorporated by reference into this Lease to the same extent and with
the same effect as if set forth fully herein and shall inure to the benefit of
the Lessor, without giving effect to any waiver, amendment, modification or
replacement of the Capital One Credit Agreement or any term or provision of the
Incorporated Representations and Warranties or the Incorporated Covenants
occurring subsequent to the date of this Lease, except to the extent otherwise
specifically provided in the following provisions of this paragraph. In the
event a waiver is granted under the Capital One Credit Agreement or an amendment
or modification is executed with respect to the Capital One Credit Agreement,
and such waiver, amendment and/or modification affects the Incorporated
Representations and Warranties or the Incorporated Covenants, then such waiver,
amendment or modification shall be effective with respect to the Incorporated
Representations and Warranties and the Incorporated Covenants as incorporated by
reference into this Lease only if consented to in writing by the Majority
Lenders. In the event of any replacement of the Capital One Credit Agreement
with a similar credit facility (the "New Facility") the representations and
------------
warranties and covenants of the Guarantor contained in the New Facility which
correspond to the representations and warranties and covenants of the Guarantor
contained in Section 7 and Section 8 of the Capital One Credit Agreement shall
become the Incorporated Representations and Warranties and the Incorporated
Covenants hereunder only if consented to in writing by the Lessor and the
Majority Lenders and, if such consent is not granted or if the Capital One
Credit Agreement is terminated and not replaced, then the representations and
warranties and covenants of the Guarantor contained in Section 7 and Section 8
of the Capital One Credit Agreement (together with any modifications or
amendments approved in accordance with this paragraph) shall continue to be the
Incorporated Representations and Warranties and the Incorporated Covenants
hereunder.
-33-
ARTICLE XXIX
29.1 Notices.
-------
All notices required or permitted to be given under this Lease shall be in
writing. Notices may be served by certified or registered mail, postage paid
with return receipt requested; by private courier, prepaid; by telex, facsimile,
or other telecommunication device capable of transmitting or creating a written
record; or personally. Mailed notices shall be deemed delivered five days after
mailing, properly addressed. Couriered notices shall be deemed delivered when
delivered as addressed, or if the addressee refuses delivery, when presented for
delivery notwithstanding such refusal. Telex or telecommunicated notices shall
be deemed delivered when receipt is either confirmed by confirming transmission
equipment or acknowledged by the addressee or its office. Personal delivery
shall be effective when accomplished. Unless a party changes its address by
giving notice to the other party as provided herein, notices shall be delivered
to the parties at the following addresses:
If to Lessee:
Capital One Services, Inc.
2980 Fairview Park Drive, Suite 1300
Falls Church, Virginia 22042
Attention: Director of Capital Markets
Telephone No.: (703) 205-1000
Telecopy No.: (703) 205-1748
with a copy to:
Capital One Financial Corporation
2980 Fairview Park Drive, Suite 1300
Falls Church, Virginia 22042
Attention: Director of Capital Markets
Telephone No.: (703) 205-1000
Telecopy No.: (703) 205-1748
with a further copy to the Legal Department of Capital One Financial Corporation
at the immediately preceding address.
If to Lessor:
First Security Bank, National Association
79 South Main Street, 3rd Floor
Salt Lake City, Utah 84111
-34-
Attention: Val T. Orton
Telephone No.: (801) 246-5300
Telecopy No.: (801) 246-5053
with a copy to the Agent:
Bank of America, N.A.
901 Main Street
66th Floor
Dallas, Texas 75202
Attention: Shelly K. Harper
Telephone No.: (214) 209-0567
Telecopy No.: (214) 209-0604
or such additional parties and/or other address as such party may hereafter
designate, and shall be effective upon receipt or refusal thereof.
ARTICLE XXX
30.1 Miscellaneous.
-------------
Anything contained in this Lease to the contrary notwithstanding, all
claims against and liabilities of Lessee or Lessor arising from events
commencing prior to the expiration or earlier termination of this Lease shall
survive such expiration or earlier termination. If any provision of this Lease
shall be held to be unenforceable in any jurisdiction, such unenforceability
shall not affect the enforceability of any other provision of this Lease and
such jurisdiction or of such provision or of any other provision hereof in any
other jurisdiction.
30.2 Amendments and Modifications.
----------------------------
Neither this Lease, any Lease Supplement nor any provision hereof may be
amended, waived, discharged or terminated except by an instrument in writing in
recordable form signed by Lessor and Lessee.
30.3 Successors and Assigns.
----------------------
All the terms and provisions of this Lease shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
30.4 Headings and Table of Contents.
------------------------------
The headings and table of contents in this Lease are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
-35-
30.5 Counterparts.
------------
This Lease may be executed in any number of counterparts, each of which
shall be an original, but all of which shall together constitute one and the
same instrument.
30.6 GOVERNING LAW.
-------------
THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE COMMONWEALTH OF VIRGINIA, EXCEPT TO THE EXTENT THAT IN SEEKING TO ENFORCE
THIS LEASE WITH RESPECT TO A PROPERTY AND TO THE EXTENT ANY OTHER RIGHTS AND
OBLIGATIONS HEREUNDER ARE REQUIRED TO BE GOVERNED UNDER THE LAWS OF THE STATE IN
WHICH SUCH PROPERTY IS LOCATED, THE LAWS OF THE STATE IN WHICH SUCH PROPERTY IS
LOCATED SHALL APPLY.
30.7 Calculation of Rent.
-------------------
All calculation of Rent payable hereunder shall be computed based on the
actual number of days elapsed over a year of 360 days.
30.8 Memoranda of Lease and Lease Supplements.
----------------------------------------
This Lease shall not be recorded; provided, Lessor and Lessee shall
--------
promptly record (a) a memorandum of this Lease or a short form Lease (in form
and substance reasonably satisfactory to Lessor) regarding each Property
promptly after the Property Closing Date with respect thereto, and (b) a
memorandum of the applicable Lease Supplement (in substantially the form of
Exhibit B attached hereto, subject to revisions to accommodate local law) or a
- ---------
short form lease (in form and substance reasonably satisfactory to Lessor)
regarding each Property promptly after the Basic Term Commencement Date with
respect to such Property, in each case in the local filing office with respect
thereto, in all cases at Lessee's cost and expense, and as required under
applicable law to sufficiently evidence this Lease or any such Lease Supplement
in the applicable real estate filing records.
30.9 Allocations between the Lenders and the Holders.
-----------------------------------------------
Notwithstanding any other term or provision of this Lease to the contrary,
the allocations of the proceeds of the Properties and any and all other Rent and
other amounts received hereunder shall be subject to the inter-creditor
provisions between the Lenders and the Holders contained in the Operative
Agreements (or as otherwise agreed among the Lenders and the Holders from time
to time).
30.10 Limitations on Recourse.
-----------------------
Notwithstanding anything contained in this Lease to the contrary, Lessee
agrees to look solely to Lessor's estate and interest in the Properties (and in
no circumstance to the Agent, the
-36-
Lenders, the Holder or otherwise to Lessor) for the collection of any judgment
requiring the payment of money by Lessor in the event of liability by Lessor,
and no other property or assets of Lessor or any shareholder, owner or partner
(direct or indirect) in or of Lessor, or any director, officer, employee,
beneficiary, Affiliate of any of the foregoing shall be subject to levy,
execution or other enforcement procedure for the satisfaction of the remedies of
Lessee under or with respect to this Lease, the relationship of Lessor and
Lessee hereunder or Lessee's use of the Properties or any other liability of
Lessor to Lessee. Nothing in this Section shall be interpreted so as to limit
the terms of Sections 6.1 or 6.2.
30.11 WAIVERS OF JURY TRIAL.
---------------------
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LESSOR AND THE LESSEE
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS LEASE OR ANY COUNTERCLAIM THEREIN.
30.12 Exercise of Lessor Rights.
-------------------------
The Lessee hereby acknowledges and agrees that the rights and powers of the
Lessor under this Lease have been assigned to the Agent pursuant to the terms of
the Security Agreement and the other Operative Agreements.
30.13 Submission To Jurisdiction; Waivers.
-----------------------------------
Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Lease and the other Operative Agreements to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
Commonwealth of Virginia, the courts of the United States of America for the
Eastern District of Virginia, and appellate courts from any thereof;
(b) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail) postage prepaid, to such party at its
address set forth in Section 29.1 or at such other address of which the parties
hereto shall have been notified pursuant thereto;
(c) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(d) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this Section 30.13 any special, exemplary or punitive damages.
-37-
30.14 USURY SAVINGS PROVISION.
-----------------------
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND CONTRACT IN STRICT
COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. TO THE EXTENT
ANY RENT OR PAYMENTS HEREUNDER ARE HEREINAFTER CHARACTERIZED BY ANY COURT OF
COMPETENT JURISDICTION AS THE REPAYMENT OF PRINCIPAL AND INTEREST THEREON, THIS
SECTION 30.14 SHALL APPLY. ANY SUCH RENT OR PAYMENTS SO CHARACTERIZED AS
INTEREST MAY BE REFERRED TO HEREIN AS "INTEREST." ALL AGREEMENTS AMONG THE
PARTIES HERETO ARE HEREBY LIMITED BY THE PROVISIONS OF THIS PARAGRAPH WHICH
SHALL OVERRIDE AND CONTROL ALL SUCH AGREEMENTS, WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER WRITTEN OR ORAL. IN NO WAY, NOR IN ANY EVENT OR
CONTINGENCY (INCLUDING, BUT NOT LIMITED TO, PREPAYMENT OR ACCELERATION OF THE
MATURITY OF ANY OBLIGATION), SHALL ANY INTEREST TAKEN, RESERVED, CONTRACTED FOR,
CHARGED, OR RECEIVED UNDER THIS LEASE OR OTHERWISE, EXCEED THE MAXIMUM
NONUSURIOUS AMOUNT PERMISSIBLE UNDER APPLICABLE LAW. IF, FROM ANY POSSIBLE
CONSTRUCTION OF ANY OF THE OPERATIVE AGREEMENTS OR ANY OTHER DOCUMENT OR
AGREEMENT, INTEREST WOULD OTHERWISE BE PAYABLE IN EXCESS OF THE MAXIMUM
NONUSURIOUS AMOUNT, ANY SUCH CONSTRUCTION SHALL BE SUBJECT TO THE PROVISIONS OF
THIS PARAGRAPH AND SUCH AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE
AUTOMATICALLY REDUCED TO THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER
APPLICABLE LAW, WITHOUT THE NECESSITY OF EXECUTION OF ANY AMENDMENT OR NEW
DOCUMENT OR AGREEMENT. IF LESSOR SHALL EVER RECEIVE ANYTHING OF VALUE WHICH IS
CHARACTERIZED AS INTEREST WITH RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR
UNDER APPLICABLE LAW AND WHICH WOULD, APART FROM THIS PROVISION, BE IN EXCESS OF
THE MAXIMUM LAWFUL AMOUNT, AN AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE BEEN
EXCESSIVE INTEREST SHALL, WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF THE
COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL AND NOT TO THE PAYMENT OF INTEREST,
OR REFUNDED TO LESSEE OR ANY OTHER PAYOR THEREOF, IF AND TO THE EXTENT SUCH
AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE EXCEEDS THE COMPONENT OF PAYMENTS DEEMED
TO BE PRINCIPAL. THE RIGHT TO DEMAND PAYMENT OF ANY AMOUNTS EVIDENCED BY ANY OF
THE OPERATIVE AGREEMENTS DOES NOT INCLUDE THE RIGHT TO RECEIVE ANY INTEREST
WHICH HAS NOT OTHERWISE ACCRUED ON THE DATE OF SUCH DEMAND, AND LESSOR DOES NOT
INTEND TO CHARGE OR RECEIVE ANY UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND.
ALL INTEREST PAID OR AGREED TO BE PAID TO LESSOR SHALL, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, BE AMORTIZED, PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE
FULL STATED TERM (INCLUDING ANY RENEWAL OR EXTENSION) OF THIS LEASE SO THAT THE
AMOUNT OF INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT
-38-
EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED BY APPLICABLE LAW.
[Signature pages follow]
-39-
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed
and delivered as of the date first above written.
TWO WITNESSES: CAPITAL ONE SERVICES, INC.
1. /s/ Albert Ciafre By: /s/ Stephen Linehan
------------------------------- ------------------------------------
Print: Albert Ciafre Name: Stephen Linehan
------------------------- -----------------------------------
Title: Director of Corporate Funding
----------------------------------
2. /s/ John Stilmar
-------------------------------
Print: John Stilmar
-------------------------
TWO WITNESSES: FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
1. /s/ Arge Pavlos not individually, but solely as Owner
-------------------------------
Print: Arge Pavlos Trustee under the Capital One Realty
------------------------- Trust 1998-1, as Lessor
2. /s/ Krystal Bagshaw By: /s/ DeAnn Madsen
------------------------------- -------------------------------------
Print: Krystal Bagshaw Name: DeAnn Madsen
------------------------- -----------------------------------
Title: Assistant Trust Officer
----------------------------------
Receipt of this original
counterpart of the foregoing
Lease is hereby acknowledged
as the date hereof
BANK OF AMERICA, N.A.,
as Agent
By:________________________________
Name:______________________________
Title:_____________________________
STATE OF ________________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Agreement was acknowledged before me, the undersigned
Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of FIRST SECURITY
BANK, NATIONAL ASSOCIATION, a national banking association, not individually,
but solely as Owner Trustee under the Capital One Realty Trust 1998-1, on behalf
of the Owner Trustee.
/s/
[Notarial Seal] ----------------------------------------
Notary Public
My commission expires: ____________
STATE OF ________________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Agreement was acknowledged before me, the undersigned
Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of CAPITAL ONE
SERVICES, INC., a Delaware corporation, on behalf of the corporation.
/s/
[Notarial Seal] ----------------------------------------
Notary Public
My commission expires: ____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Agreement was acknowledged before me, the undersigned
Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of BANK OF AMERICA,
N.A., a national banking association, as Agent.
[Notarial Seal] ________________________________
Notary Public
EXHIBIT A TO
THE LEASE
------------
[CONFORM TO REQUIREMENTS OF LAW]
LEASE SUPPLEMENT NO. ___
(Capital One Services, Inc.)
THIS LEASE SUPPLEMENT NO. ___ (Capital One Services, Inc.) (this "Lease
-----
Supplement") dated as of [________________] between FIRST SECURITY BANK,
- ----------
NATIONAL ASSOCIATION, not individually, but solely as Owner Trustee under the
Capital One Realty Trust 1998-1, as lessor (the "Lessor"), and CAPITAL ONE
------
SERVICES, INC., as lessee (the "Lessee").
------
WHEREAS, the Lessor is the owner or will be the owner of the Property
described on Schedule I hereto (the "Leased Property") and wishes to lease the
---------- ---------------
same to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions; Rules of Usage. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix A to the Participation Agreement
----------
(Capital One Services, Inc.), dated as of September 3, 1999, among the Lessee,
the Lessor, not individually, except as expressly stated therein, but solely as
Owner Trustee under the Capital One Realty Trust 1998-1, the Holders, the
Lenders and Bank of America, N.A., as Agent for the Lenders and respecting the
Security Documents, as Agent for the Lenders and the Holders, to the extent of
their interests.
SECTION 2. The Properties. Attached hereto as Schedule I is the
description of the Leased Property, with an Equipment Schedule attached hereto
as Schedule I-A, an Improvement Schedule attached hereto as Schedule I-B and a
legal description of the Land for such Project attached hereto as Schedule I-C.
Effective upon the execution and delivery of this Lease Supplement by the Lessor
and the Lessee, the Leased Property shall be subject to the terms and provisions
of the Lease.
SECTION 3. Use of Property. At all times during the Term with respect to
each Property, Lessee will comply with all obligations under and (to the extent
no Event of Default exists and provided that such exercise will not impair the
value of such Property) shall be permitted to exercise all rights and remedies
under, all operation and easement agreements and related or similar agreements
applicable to such Property.
SECTION 4. Ratification; Incorporation by Reference. Except as
specifically modified hereby, the terms and provisions of the Lease and the
Operative Agreements are hereby
ratified and confirmed and remain in full force and effect. The Lease is hereby
incorporated herein by reference as though restated herein in its entirety.
SECTION 5. Original Lease Supplement. The single executed original of
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the original
executed counterpart of this Lease Supplement (the "Original Executed
-----------------
Counterpart"). To the extent that this Lease Supplement constitutes chattel
- -----------
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF VIRGINIA.
SECTION 7. Mortgage; Power of Sale. Without limiting any other remedies
set forth in the Lease, in the event that a court of competent jurisdiction
rules that the Lease constitutes a mortgage, deed of trust or other secured
financing as is the intent of the parties, then the Lessor and the Lessee agree
that the Lessee hereby grants a Lien against the Leased Property WITH POWER OF
SALE, and that, upon the occurrence of any Lease Event of Default, the Lessor
shall have the power and authority, to the extent provided by law, after prior
notice and lapse of such time as may be required by law, to foreclose its
interest (or cause such interest to be foreclosed) in all or any part of the
Leased Property.
SECTION 8. Counterpart Execution. This Lease Supplement may be executed
in any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
TWO WITNESSES: FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as Owner
1. __________________________ Trustee under the Capital One Realty Trust
Print:____________________ 1998-1, as Lessor
2.___________________________ By:_______________________________________
Print: Name:_____________________________________
Title:____________________________________
TWO WITNESSES: CAPITAL ONE SERVICES, INC. as Lessee
1.___________________________ By:_______________________________________
Print:_____________________ Name:_____________________________________
Title:____________________________________
2.___________________________
Print:_____________________
Receipt of this original counterpart of the foregoing Lease Supplement is hereby
acknowledged as the date hereof.
BANK OF AMERICA, N.A., as Agent
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[CONFORM TO STATE LAW REQUIREMENTS]
STATE OF __________________ )
) ss:
COUNTY OF _________________ )
The foregoing Lease Supplement was acknowledged before me, the undersigned
Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of FIRST SECURITY
BANK, NATIONAL ASSOCIATION, a national banking association, not individually,
but solely as Owner Trustee under the Capital One Realty Trust 1998-1, on behalf
of the Owner Trustee.
[Notarial Seal] ___________________________________
Notary Public
My commission expires:____________
STATE OF __________________ )
) ss:
COUNTY OF _________________ )
The foregoing Lease Supplement was acknowledged before me, the undersigned
Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of CAPITAL ONE
SERVICES, INC., a Delaware corporation, on behalf of the corporation.
[Notarial Seal] ___________________________________
Notary Public
My commission expires:____________
STATE OF __________________ )
) ss:
COUNTY OF _________________ )
The foregoing Lease Supplement was acknowledged before me, the undersigned
Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of BANK OF AMERICA,
N.A., a national banking association, as Agent.
[Notarial Seal] ___________________________________
Notary Public
My commission expires:____________
SCHEDULE I
TO LEASE SUPPLEMENT NO. ____
(Capital One Services, Inc.)
SCHEDULE I-A
TO LEASE SUPPLEMENT NO. ____
(Capital One Services, Inc.)
(Equipment)
SCHEDULE I-B
TO LEASE SUPPLEMENT NO. ____
(Capital One Services, Inc.)
(Improvements)
SCHEDULE I-C
TO LEASE SUPPLEMENT NO. ____
(Capital One Services, Inc.)
(Land)
EXHIBIT B TO THE LEASE
----------------------
[CONFORM TO REQUIREMENTS OF LAW]
Recordation requested by:
Moore & Van Allen, PLLC
After recordation return to:
Moore & Van Allen, PLLC (WMA)
Bank of America Corporate Center
100 North Tryon Street, Floor 47
Charlotte, NC 28202-4003
Space above this line
for Recorder's use
_______________________________
MEMORANDUM OF LEASE AGREEMENT
(TAX RETENTION OPERATING LEASE) AND
LEASE SUPPLEMENT NO. _____________
(Capital One Services, Inc.)
THIS MEMORANDUM OF LEASE AGREEMENT (TAX RETENTION OPERATING LEASE) AND
LEASE SUPPLEMENT NO. ___ (Capital One Services, Inc.) ("Memorandum"), dated as
of _____________, 199___, is by and between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not individually, but solely as
Owner Trustee under the Capital One Realty Trust 1998-1, with an office at 79
South Main Street, Salt Lake City, Utah 84111 (hereinafter referred to as
"Landlord") and CAPITAL ONE SERVICES, INC., a Delaware corporation, with an
office at 2980 Fairview Park Drive, Suite 1300, Falls Church, Virginia 22042
(hereinafter referred to as "Tenant").
WITNESSETH:
That for value received, Landlord and Tenant do hereby covenant, promise
and agree as follows:
1. Demised Premises. Landlord has leased to Tenant, and Tenant has
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leased from Landlord, for the Term (as hereinafter defined), certain real
property and other property located in ________________, which is described in
the attached Exhibit A (the "Property"), pursuant to
the terms of a Lease Agreement (Tax Retention Operating Lease Agreement),
between Landlord and Tenant dated September 3, 1999 (the "Lease") and a Lease
Supplement No. _____ between Landlord and Tenant dated ______________ (the
"Lease Supplement").
2. Term. The term of the Lease ("Term") commenced on _______ and shall
----
end ______________, unless the Term is extended or earlier terminated in
accordance with the provisions of the Lease.
3. Mortgage; Power of Sale. Without limiting any other remedies set
-----------------------
forth in the Lease, in the event that a court of competent jurisdiction rules
that the Lease constitutes a mortgage, deed of trust or other secured financing
as is the intent of the parties, then the Lessor and the Lessee agree that the
Lessee has granted, pursuant to the terms of the Lease and the Lease Supplement,
a Lien against the Property WITH POWER OF SALE, and that, upon the occurrence
and during the continuance of any Lease Event of Default, the Lessor shall have
the power and authority, to the extent provided by law, after prior notice and
lapse of such time as may be required by law, to foreclose its interest (or
cause such interest to be foreclosed) in all or any part of the Property.
4. Effect of Memorandum. The purpose of this instrument is to give
--------------------
notice of the Lease and the Lease Supplement and their respective terms,
covenants and conditions to the same extent as if the Lease and the Lease
Supplement were fully set forth herein. This Memorandum shall not modify in any
manner the terms, conditions or intent of the Lease or the Lease Supplement and
the parties agree that this Memorandum is not intended nor shall it be used to
interpret the Lease or the Lease Supplement or determine the intent of the
parties under the Lease or the Lease Supplement.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have duly executed this instrument
as of the day and year first written.
LANDLORD: TENANT:
FIRST SECURITY BANK, CAPITAL ONE SERVICES, INC.
NATIONAL ASSOCIATION, a Delaware corporation
not individually, but solely
as Owner Trustee under the
Capital One Realty Trust 1998-1
By:___________________________ By:__________________________
Its:__________________________ Its:_________________________
[CONFORM TO REQUIREMENTS OF LAW]
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the undersigned
Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of FIRST SECURITY
BANK, NATIONAL ASSOCIATION, a national banking association, not individually,
but solely as Owner Trustee under the Capital One Realty Trust 1998-1, on behalf
of the Owner Trustee.
[Notarial Seal] ________________________________________
Notary Public
My commission expires:____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the undersigned
Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of CAPITAL ONE
SERVICES, INC., a Delaware corporation, on behalf of the corporation.
[Notarial Seal] ________________________________________
Notary Public
My commission expires:____________