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EXHIBIT 10(s)(iv)
DEED OF LEASE AGREEMENT
Dated as of November 15, 1996
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as the Owner Trustee
under the Stuart Park Trust,
as Lessor
and
LCI INTERNATIONAL, INC.,
as Lessee
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This Deed of Lease Agreement is subject to a security interest in favor of
NationsBank of Texas, N.A., a national banking association, as the Agent (the
"Agent") under a Security Agreement dated as of November 15, 1996, between
First Security Bank, National Association, not individually except as expressly
stated therein, but solely as the Owner Trustee under the Stuart Park Trust
and the Agent, as amended, modified, extended, supplemented, restated and/or
replaced from time to time in accordance with the applicable provisions
thereof. This Deed of Lease Agreement has been executed in several
counterparts. To the extent, if any, that this Deed of 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
Deed
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of 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.
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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Lease Supplements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Payment of Basic Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Supplemental Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.4 Performance on a Non-Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.5 Rent Payment Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Taxes; Utility Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.1 Ownership of the Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.1 Condition of the Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.2 Possession and Use of the PropertY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9.1 Compliance With Legal Requirements and Insurance Requirements . . . . . . . . . . . . . . . . . . . 10
ARTICLE X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10.1 Maintenance and Repair; Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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10.2 Hazardous Substance Removal and Remediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10.3 Lessor's Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10.4 Environmental Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11.1 Modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
12.1 Warranty of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
13.1 Permitted Contests Other Than in Respect of Indemnities . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
14.1 Public Liability and Workers, Compensation Insurance . . . . . . . . . . . . . . . . . . . . . . . . 16
14.2 Permanent Hazard and Other Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14.3 Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
15.1 Casualty and Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
15.2 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
15.3 Notice of Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE XVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
16.1 Termination Upon Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
16.2 Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
16.3 Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE XVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
17.1 Lease Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
17.2 Surrender of Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
17.3 No Obligation to Relet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
17.4 Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
17.5 Power of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
17.6 Final Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
17.7 Environmental Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
17.8 Waiver of Certain Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
17.9 Assignment of Rights Under Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
17.10 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE XVIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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18.1 Lessor's Right to Cure Lessee's Lease Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE XIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
19.1 Provisions Relating to Lessee's Exercise of its Purchase Option . . . . . . . . . . . . . . . . . . 32
19.2 No Purchase or Termination With Respect to Less than All of the Property . . . . . . . . . . . . . . 32
ARTICLE XX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
20.1 Purchase Option or Sale Option-General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 32
20.2 Lessee Purchase Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
20.3 Third Party Sale Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE XXI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Intentionally Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE XXII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
22.1 Sale Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
22.2 Application of Proceeds of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
22.3 Indemnity for Excessive Wear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
22.4 Appraisal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
22.5 Certain Obligations Continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE XXIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
23.1 Holding Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE XXIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
24.1 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE XXV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
25.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
25.2 Subleases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE XXVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
26.1 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE XXVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
27.1 Acceptance of Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
27.2 No Merger of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE XXVIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
28.1 Incorporation of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
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ARTICLE XXIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
29.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE XXX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
30.1 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
30.2 Amendments and Modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
30.3 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
30.4 Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
30.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
30.6 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
30.7 Calculation of Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
30.8 Memoranda of Lease and Lease Supplements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
30.9 Allocations between the Lenders and the Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 45
30.10 Limitations on Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
30.11 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
30.12 Exercise of Lessor Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
30.13 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
30.14 Discharge of Lessee's Obligations by its Affiliates . . . . . . . . . . . . . . . . . . . . . . . 46
30.15 USURY SAVINGS PROVISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
EXHIBITS:
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A - The Land
B - Memorandum of Lease
B-1 - Lease Supplement
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DEED OF LEASE AGREEMENT
THIS DEED OF LEASE AGREEMENT (as amended, modified, extended,
supplemented, restated and/or replaced from time to time, this "Lease"), dated
as of November 15, 1996, 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 in its individual capacity but solely
as the Owner Trustee under the Stuart Park Trust, a trust organized under the
laws of the State of Virginia, as lessor (the "Lessor"), and LCI INTERNATIONAL,
INC., a corporation organized under the laws of the State of Delaware and
having its principal office at 8180 Greensboro Drive, McLean, Virginia 22102,
as lessee (the "Lessee").
W I T N E S S E T H:
A. WHEREAS, subject to the terms and conditions of the
Participation Agreement and the Agency Agreement, Lessor will purchase various
tracts or parcels of unimproved real estate as more particularly described on
Exhibit A attached hereto (the "Land") and incorporated herein by reference
from unrelated third parties all as designated by Lessee and fund the
development, construction, operation, maintenance, and repair of an
approximately 306,000 gross square foot office building, an approximately
660-car underground parking facility and related improvements on such Land by
the Construction Agent; and
B. WHEREAS, the Basic Term shall commence with respect to
the Property upon the earlier to occur of (i) the Completion of such Property
or (ii) during such time as the Property is a Construction Period Property as
of the date of any Agency Agreement Event of Default, the date of such Agency
Agreement Event of Default; and
C. WHEREAS, Lessor as of the date hereof desires to lease to
Lessee, and Lessee desires to lease from Lessor, the Property;
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NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions. Capitalized terms used but not otherwise
defined in this Lease have the respective meanings specified in Appendix A to
the Participation Agreement of even date herewith (as such may be amended,
modified, extended, supplemented, restated and/or replaced from time to time,
the "Participation Agreement") among Lessee, the Construction Agent, First
Security Bank, National Association, not in its individual capacity, except as
expressly stated therein, as the Owner Trustee under the Stuart Park Trust, the
Holders, the Lenders and the Agent.
Interpretation. The rules of usage set forth in Appendix
A to the Participation Agreement shall apply to this Lease.
ARTICLE II
Property. Subject to the terms and conditions set forth
in this Lease and contained in any Lease Supplement contemplated hereby and by
the Participation Agreement relating to the Property, Lessor hereby leases,
lets and demises unto Lessee, and Lessee hereby leases, rents and takes
possession from Lessor all of Lessor's right, title and interest in the
Property, including (i) the Land, (ii) all Improvements now or hereafter
constructed thereon, (iii) each item of Equipment located or installed on the
Land or within the Improvements, and (iv) all easements, privileges, rights and
appurtenances thereto, to have and to hold the same for the Term subject to the
covenants, agreements, terms, conditions, limitations and provisions herein set
forth.
Lease Term.
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(a) The Interim Lease Term of this Lease with respect to the
Property shall begin upon the Land Closing Date and shall end at midnight on
the day immediately preceding the Basic Term Commencement Date (as hereinafter
defined).
(b) The basic term of this Lease with respect to the Property
(the "Basic Term") shall begin upon the earlier to occur of (a) the Completion
Date for the Property or (b) if the Property is a Construction Period Property
as of the date of any Agency Agreement Event of Default, the date of such
Agency Agreement Event of Default (in each case the "Basic Term Commencement
Date") and shall end on November 14, 1999 (the "Basic Term Expiration Date"),
unless the Basic Term is earlier terminated or the term of this Lease is
renewed (as described below) in accordance with the provisions of this Lease.
(c) If no Default or Event of Default has occurred and is
continuing, and if Lessee has not provided written notice to Lessor, the Agent
and the Holders at least one hundred twenty (120) days prior to the first day
of the applicable Renewal Term of its determination to exercise its Purchase
Option or Sale Option under Article XX hereof, the term of this Lease for the
Property shall be automatically extended for one (1) year following the Basic
Term Expiration Date, and if so renewed, provided no Default or Event of
Default has occurred and is then continuing, automatically thereafter for one
(1) additional one (1) year period from the first anniversary of the Basic Term
Expiration Date (each, a "Renewal Term"); provided, that the expiration date
for the final Renewal Term for the Property shall not be later than the fifth
(5th) annual anniversary of the Initial Closing Date; provided further,
however, the Lessee shall have the option to request an extension of the Term
of this Lease for a maximum of three (3) additional one (1) year periods to
commence immediately following the expiration date of the final Renewal Term to
be comprised of three (3) annual one (1) year lease terms (each, an "Extended
Renewal Term") which such request for an Extended Renewal Term (i) must be made
in writing by Lessee delivered to each of the Lessor, Agent, Holders and
Lenders not less than one hundred twenty (120) days prior to the expiration
date for the Final Renewal Term and (ii) must be approved in
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writing by each of Lessor, the Agent, the Lenders and the Holders in their sole
and absolute discretion.
Title. The 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 Lessor's title to the Property or any interest of Lessee
therein other than for Lessor Liens.
Lease Supplements. On or prior to the Basic Term
Commencement Date, Lessee and Lessor shall each execute and deliver a Lease
Supplement for the Property effective as of such Basic Term Commencement Date
in substantially the form of Exhibit B-1 hereto.
ARTICLE III
Rent.
Lessee shall pay Basic Rent in arrears on each
Payment Date, and on any date on which this Lease shall terminate with
respect to the Property during the Term; provided, however, Lessee
shall have no obligation to pay Basic Rent with respect to the
Property until the Basic Term has commenced.
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) on or before 9:00 A.M. Charlotte, North Carolina, time
to such account or accounts at such bank or banks as Lessor shall from
time to time direct.
Lessee's inability or failure to take possession of
all or any portion of the Property when delivered by Lessor, whether
or not attributable to any act or omission of Lessor, the Construction
Agent, Lessee or any other Person or for any other reason whatsoever,
shall not delay or otherwise
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affect Lessee's obligation to pay Rent for the Property in accordance
with the terms of this Lease.
Payment of Basic Rent. Basic Rent shall be paid
absolutely net to Lessor or its designee, so that this Lease shall yield to
Lessor the full amount thereof, without set-off, deduction or reduction.
Supplemental Rent. Lessee shall pay to the Person
entitled thereto any and all Supplemental Rent when and 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 due and owing to Lessor, among other
things, to the extent permitted by applicable Legal Requirements, (a) any and
all unpaid fees, charges, payments, amounts 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, in any capacity, under the Credit
Agreement, under the Trust Agreement and/or under any other Operative Agreement
(including 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) within ten (10) days of receipt of demand therefor from Lessor,
Agent, any Lender or any Holder and (b) within three (3) days following notice
that the Overdue Rate is applicable, 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 the appropriate
Person for the period from the due date or the date of any such demand, as the
case may be, until the same shall be paid. The expiration or other termination
of Lessee's obligations to pay Basic Rent hereunder shall not limit or modify
the obligations of Lessee with respect to Supplemental Rent. Unless expressly
provided otherwise in this Lease, in the event of any failure on the part of
Lessee to pay and discharge any Supplemental Rent as and when due, Lessee shall
also promptly pay and discharge any fine, penalty, interest or cost which may
be assessed or added for
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nonpayment or late payment of such Supplemental Rent, all of which shall also
constitute Supplemental Rent.
Performance on a Non-Business Day. If any Basic Rent is
required to be paid 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.
Rent Payment Provisions. Lessee shall make payment of
all Basic Rent and Supplemental Rent when due (subject to the applicable grace
periods) 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.
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ARTICLE IV
Taxes; Utility Charges. Lessee shall pay or cause to be
paid all Impositions with respect to the Property and/or the use, occupancy,
operation, repair, access, maintenance 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
the 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 charge 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 the 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.
ARTICLE V
Quiet Enjoyment. Subject to the rights of Lessor
contained in Sections 17.2, 17.3 and 20.3 and the other terms of this Lease and
the other Operative Agreements and so long as no Event of Default shall have
occurred and be continuing, Lessee shall peaceably and quietly have, hold and
enjoy the Property for the 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 Land Acquisition Date.
ARTICLE VI
Net Lease. This Lease shall constitute a net lease, and
the obligations of Lessee hereunder are absolute and unconditional. Lessee
shall pay all operating expenses arising
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out of the use, operation and/or occupancy of the Property. 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,
set-off, 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) for
any reason whatsoever, including without limitation by reason of: (a) any
damage to or destruction of the Property or any part thereof; (b) any taking of
the Property or any part thereof or interest therein by Condemnation or
otherwise; (c) any prohibition, limitation, restriction or prevention of
Lessee's use, occupancy or enjoyment of the Property or any part thereof, or
any interference with such use, occupancy or enjoyment by any Person or for any
other reason; (d) any title defect, Lien or any matter affecting title to the
Property; (e) any eviction by paramount title or otherwise; (f) any default by
Lessor hereunder; (g) any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding relating to or affecting the
Agent, any Lender, Lessor, Lessee, any Holder or any Governmental Authority;
(h) the impossibility or illegality of performance by Lessor, Lessee or both;
(i) any action of any Governmental Authority or any other Person; (j) Lessee's
acquisition of ownership of all or part of the Property; (k) breach of any
warranty or representation with respect to the Property or any Operative
Agreement by any Person; (l) any defect in the condition, quality or fitness
for use of the Property or any part thereof; or (m) 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 AND THAT THE PROVISIONS HEREOF SHALL SURVIVE ANY
TERMINATION OF THIS LEASE.
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No Termination or Abatement. Lessee shall remain
obligated under this Lease in accordance with its terms and shall not take any
action to terminate, rescind or avoid this Lease, notwithstanding any action
for bankruptcy, insolvency, reorganization, liquidation, dissolution, or other
proceeding affecting any Person 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 any Person or any Governmental Authority or
by any court with respect to any Person, or any Governmental Authority. Lessee
hereby waives all right (a) to terminate or surrender this Lease (except as
expressly permitted under the terms of the Operative Agreements) or (b) to
avail itself of any abatement, suspension, deferment, reduction, set-off,
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
Ownership of the Property.
Lessor and Lessee acknowledge that Lessor is formed
for the sole purpose of facilitating the transactions contemplated by
the Operative Agreement and Lessor and Lessee intend and agree that
for federal and all state and local income tax purposes (A) this Lease
will be treated as a financial arrangement; (B) the Lenders and the
Holders will be deemed lenders making loans for the benefit of the
Lessee, which loans are secured by all of the Property, this Lease and
to the extent set forth in the Operative Agreements; and (C) Lessee
will be treated as the owner of all of the Property and will be
entitled to claim cost recovery (i.e., "depreciation") deductions
respecting the Improvement and all of the tax benefits ordinarily
available to the owner of property similar to the Property for such
tax purposes. Lessor will claim no depreciation deduction with
respect to the Improvements and will treat the payments of all Basic
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Rent as interest income for federal and state income tax purposes.
Lessee will claim deprecation deductions with respect to the
Improvements and will treat the Basic Rent as interest expenses for
federal and state income tax purposes. Lessor, the Lenders and the
Holders shall take no action inconsistent with such intent for tax
purposes.
Lessor and Lessee intend and agree that with respect
to the nature of the transaction evidenced by this Lease in the
context of the exercise of remedies under the Operative Agreements,
including without limitation in the case of any insolvency or
receivership proceedings or a petition under the United States
Bankruptcy laws or any other application of applicable insolvency laws
or statutes of the United States of America or any state or
commonwealth thereof affecting Lessee, Lessor, the Lenders or the
Holders or any enforcement or collection action, the transactions
evidenced by this Lease shall be regarded as loans made under a
financing arrangement by the Lenders and the Holders as unrelated
third party lenders to Lessee secured by all of the Property.
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 the Property and all proceeds (including without limitation
insurance proceeds thereof) to the extent such is personal property
and an irrevocable grant and conveyance of a lien and mortgage (in the
nature of a deed of trust) on the Property and all proceeds (including
without limitation insurance proceeds thereof) to the extent such is
real property; (ii) the acquisition of title to the Property
referenced in Article II (including the Land described in Exhibit A
hereto) 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 thereof) of the conversion, voluntary or
involuntary, of the foregoing
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into cash, investments, securities or other property, whether in the
form of cash, investments, securities or other property, and an
assignment of all rents, profits and income produced by the Property;
and (iii) notifications to Persons holding such property, and
acknowledgements, receipts or confirmations from financial
intermediaries, bankers or agents (as applicable) of Lessee shall be
deemed to have been given for the purpose of perfecting such lien,
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 any Lease Supplements) to ensure that the lien, security interest,
lien, mortgage lien and deed of trust in the Property and the other
items referenced above will be deemed to be a perfected lien, security
interest, mortgage lien and deed of trust of first priority under
applicable law and will be maintained as such throughout the Term.
ARTICLE VIII
Condition of the Property. LESSEE ACKNOWLEDGES AND
AGREES THAT IT IS LEASING THE PROPERTY "AS-IS WHERE-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 REGARDING ITS PHYSICAL CONDITION OR
WHICH AN ACCURATE SURVEY 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 ANY 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 THE PROPERTY (OR ANY
PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PART THEREOF), AND
NEITHER LESSOR NOR THE AGENT NOR ANY LENDER NOR ANY HOLDER SHALL
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BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREON OR THE FAILURE OF
THE PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT.
LESSEE HAS OR PRIOR TO THE BASIC TERM COMMENCEMENT DATE WILL HAVE BEEN AFFORDED
FULL OPPORTUNITY TO INSPECT THE PROPERTY AND THE IMPROVEMENTS THEREON (IF ANY),
IS OR WILL BE (INSOFAR AS 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
LESSOR, THE AGENT, THE LENDERS AND THE HOLDERS, ON THE ONE HAND, AND LESSEE, ON
THE OTHER HAND, ARE TO BE BORNE BY LESSEE.
Possession and Use of the PropertY.
At all times during the Term the 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 Property as contemplated by this Lease. Lessee
shall not commit or permit any waste of the Property or any part
thereof.
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 the Property, the Lease
correctly identifies the location of the related Equipment and
Improvements and contains an accurate legal description for the Land.
Lessee has no other places of business where the Equipment or
Improvements will be located other than that identified in Exhibit A
to this Lease.
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 on Exhibit A to
this Lease) 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
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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.
On the Basic Term Commencement Date, Lessor and
Lessee shall execute (i) a Lease Supplement in regard to the Property
which shall set forth the Basic Term Commencement Date and the
Expiration Date and (ii) an amended Uniform Commercial Code Financing
Statement containing 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 leased hereunder. Simultaneously with the execution and
delivery of such Lease Supplement, such Equipment, Improvements, Land,
and the remainder of such Property shall be deemed to have been
accepted by Lessee for all purposes of this Lease and to be subject in
all respects to this Lease.
At all times during the Term with respect to the
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, utility or remaining useful life 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 the Property.
ARTICLE IX
Compliance With Legal Requirements and Insurance
Requirements. Subject to the terms of Article XIII relating to permitted
contests, Lessee, at its sole cost and expense, shall (a) comply with all
applicable Legal Requirements (including without limitation all Environmental
Laws), and all Insurance Requirements relating to the Property, including
without limitation the acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment and restoration
thereof, whether or not compliance therewith shall require structural or
extraordinary changes in the Property or interfere with the use and enjoyment
of the Property, and (b) procure, maintain and comply with all material
licenses,
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permits, orders, approvals, consents and other authorizations required for the
acquisition, installation, testing, use, development, construction, operation,
maintenance, repair, refurbishment and restoration of the Property. Lessor
agrees to take such actions as may be reasonably requested by Lessee in
connection with the compliance by Lessee of its obligations under this Section
9.1.
ARTICLE X
Maintenance and Repair; Return.
Lessee, throughout the Term at its sole cost and
expense, shall maintain the Property in good condition, repair and
working order (ordinary wear and tear excepted) and make all necessary
repairs thereto and replacements thereof, 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 Property, such that the
Property is capable of being immediately utilized by a third party and
in compliance with standard industry practice subject, however, to the
provisions of Article XV with respect to Casualty and Condemnation.
Lessee shall not use or locate any component of the
Property outside of any Approved State. Lessee shall not move or
relocate any component of the Property beyond the boundaries of the
Land (comprising part of the Property) described herein and in any
applicable Lease Supplement.
If any component of the 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, Lessee, at its own expense, will
within a reasonable time replace such component with a replacement
component which is free and
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clear of all Liens (other than Permitted Liens) and has a value,
utility and useful life at least equal to the component replaced
(assuming the component replaced had been maintained and repaired in
accordance with the requirements of this Lease). 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.
Upon reasonable advance notice, Lessor and its agents
shall have the right at Lessor's expense to inspect the 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.
Prior to commencement of construction of Improvements
on the Land comprising a portion of the Property the Lessee (at
Lessee's sole expense) will cause an Appraisal to be delivered to the
Lessor reflecting an appraised value when the Property is completed at
least equal to one hundred percent (100%) of the Termination Value
(the "Base Amount"). Lessor, in its reasonable discretion, may
request (at Lessee's sole expense) a re-appraisal of the Property upon
the occurrence and during the continuation of an Event of Default; or
if no Event of Default has occurred and is continuing, no more
frequently than every three (3) years following the Basic Term
Commencement Date unless such an Appraisal is required by any Legal
Requirement applicable to Lessor, any Lender or any Holder; provided,
however, no minimum valuation shall be required respecting any
re-appraisal.
Lessor shall under no circumstances be required to
build any improvements or install any equipment on the Property, make
any repairs, replacements, alterations or renewals of any nature or
description to the Property, make any expenditure whatsoever in
connection with this Lease or maintain the Property in any way.
Lessor shall not be required to maintain, repair or rebuild all or any
part of
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the Property, and Lessee waives the right to (i) require Lessor to
maintain, repair, or rebuild all or any part of the 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.
Lessee shall, upon the expiration or earlier
termination of this Lease, if Lessee shall not have exercised its
Purchase Option with respect to the Property and purchased such
Property, surrender the Property to Lessor pursuant to (i) the
exercise of certain remedies upon the occurrence of a Lease Event of
Default or (ii) the second paragraph of Section 22.1(a) hereof, or the
third party purchaser, as the case may be, subject to Lessee's
obligations under this Lease (including without limitation the
obligations of 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 hereof).
Hazardous Substance Removal and Remediation. Following
the Land Acquisition Date, Lessee agrees to undertake with all reasonable
diligence a remediation program to remove the chlorinated solvent contamination
in groundwater beneath the Property as described in letter of Engineering
Consulting Services, Ltd. addressed to Development Resources, Inc. dated
September 12, 1996 (ECS Project No. 1280-I) (the "Environmental Audit") and in
accordance with the recommended remediation program as described therein, at
its expense, with proper off-site disposal, and to perform, to the extent
required by any Environmental Law, any Governmental Authority, all
environmental response, investigation, removal, corrective and remedial actions
with respect to Hazardous Substances on, at, or beneath the Property in a
reasonably diligent manner. Lessee's obligations hereunder shall survive any
Lease Event of Default, any termination of this Lease pursuant to Section 17.1
hereof, and any default under any Operative Agreements.
Lessor's Right of Inspection. Lessor shall have the
right at any time after and during the continuation of any Default or Event of
Default, to conduct or cause to be conducted an
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environmental inspection or audit of the Property by itself or by a qualified
environmental consultant or engineer selected by Lessor; and Lessee hereby
grants to Lessor, the Agent, the Lenders and the Holders and their employees,
agents, and independent contractors (hereinafter collectively called "Lessor
and its Representatives"), the right to enter the Property upon reasonable
notice for the purpose of conducting after and during the continuation of any
Default or Event of Default under any of the Operative Agreements, any
inspection, audit or tests, making soil borings, extracting samples, installing
monitoring wells, and conducting such other procedures as Lessor and its
Representatives deem necessary or desirable in connection with such inspection
or audit. At any time during this Lease, provided Lessor has a reasonable
basis for doing so, Lessor may require Lessee to cause to be performed, at the
expense of Lessee, for the benefit of Lessor and its Representatives, an
inspection or audit of the Property by an environmental consultant or engineer
approved by Lessor, and Lessee shall furnish to Lessor, at no cost to Lessor,
the written inspection or audit report certifying as to the presence or absence
of Hazardous Substances on, at, or under the Property. Notwithstanding the
foregoing obligations, no less than once every twelve months, and upon
Completion of the Property, Lessee shall cause to be performed, at the expense
of Lessee, for the benefit of Lessor and its Representatives, an inspection or
audit of chlorinated solvent contamination of the Property by an environmental
consultant or engineer approved by Lessor, and Lessee shall furnish to Lessor,
at no cost to Lessor, a written inspection or audit report which shall, at a
minimum, fully delineate the extent of chlorinated solvent contamination on,
at, or under the Property provided that if two (2) consecutive annual reports
shall disclose that such contamination described in the Environmental Audit has
been reduced to levels permitted by Environmental Laws, no further annual
reports shall be required pursuant to this Section 10.3 except that Lessee
shall nonetheless provide to Lessor and Agent copies of all analytical data or
reports generated thereafter with respect to any monitoring or testing of the
Property.
Environmental Inspection. If Lessee has not given notice
of exercise of its Purchase Option on the Expiration Date pursuant to Section
20.1, or for whatever reason Lessee does not
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purchase the Property in accordance with the terms of this Lease, then not more
than one hundred twenty (120) days nor less than sixty (60) days prior to the
Expiration Date, Lessee at its sole expense shall cause to be delivered to
Lessor an environmental assessment for the Property recently prepared (no more
than thirty (30) days prior to the date of delivery) by an independent licensed
professional engineer reasonably acceptable to Lessor and the Agent, and
addressed to and in form, scope and content reasonably satisfactory to Lessor
and the Agent and which environmental assessment (i) shall be sufficient in
scope to determine compliance with all applicable Environmental Laws and all
applicable Legal Requirements and (ii) if such environmental assessment reveals
the need for additional review (including soil, air, water or ground water
samplings and analysis) Lessee shall have provided such additional information
or environmental assessment as may reasonably be required by Lessor and the
Agent and, any remediation recommended therein to be performed shall have been
performed.
ARTICLE XI
Modifications.
Lessee at its sole cost and expense, at any time and
from time to time without the consent of Lessor may make
modifications, 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)
each Modification shall be done expeditiously and in a good and
workmanlike manner; (iii) Lessee shall comply with all material Legal
Requirements (including without limitation all Environmental Laws) and
Insurance Requirements applicable to any Modification, including
without limitation the obtaining of all permits, licenses, consents
and certificates of
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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 any
Modification; (vi) each Modification shall comply with the
requirements of this Lease (including without limitation Sections 8.2
and 10.1); and (vii) no Improvement shall be demolished or otherwise
rendered unfit for use unless Lessee shall finance the proposed
replacement Modification outside of this lease facility. All
Modifications shall immediately and without further action upon their
incorporation into the Property (1) become property of 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 the
Property. 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.
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
Warranty of Title.
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Title to the Property (including without limitation
all Equipment, all Improvements, all replacement components to the
Property and all Modifications) shall immediately and without further
action vest in and such shall become the property of Lessor and be
subject to the terms of this Lease from and after the date hereof or
such date of incorporation into the Property. Lessee agrees that,
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 the
Property, any component thereof or any Modifications or any Lien,
attachment, levy or claim with respect to the Rent or with respect to
any amounts held by Lessor, the Agent or any Holder pursuant to any
Operative Agreement, other than Permitted Liens and Lessor Liens.
Lessee shall promptly notify Lessor in the event it receives actual
knowledge that a Lien other than a Permitted Lien or Lessor Lien has
occurred with respect to the Property, the Rent or any other such
amounts, and Lessee represents and warrants to, and covenants with,
Lessor that the Liens in favor of Lessor created by the Operative
Agreements are first priority perfected Liens subject only to
Permitted Liens.
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 THE 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 THE PROPERTY.
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ARTICLE XIII
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 Property, Lessor, each Holder, the
Agent and each Lender; (b) there shall not be imposed a Lien (other than
Permitted Liens) on the Property and no part of the 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.
ARTICLE XIV
Public Liability and Workers, Compensation Insurance.
During the Term, Lessee shall procure and carry, at Lessee's sole cost and
expense, contractual liability insurance, commercial general liability and
umbrella liability insurance for claims for injuries or death sustained by
persons or damage to property while on the Property or the premises where the
Equipment
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is located and the adjoining land, streets, sidewalks or ways or occurring as a
result of construction and use of the Improvements on the Land or as a result
of any activities taking place on the Property after construction, 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 no less than $2,000,000 (with a deductible or retention of no
more than $50,000), and (ii) for umbrella liability no less than $20,000,000
with an attachment point of $2,000,000. The policies shall name 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. In the operation of the
Property, Lessee shall comply with applicable workers compensation laws and
protect Lessor, each Holder, the Agent and each Lender against any liability
under such laws.
Permanent Hazard and Other Insurance.
During the Term of this Lease, Lessee shall keep the
Property insured against all risk of physical loss or damage by fire
and other risks under an "all-risk" insurance policy and shall
maintain builders risk insurance during construction of any
Improvements or Modifications, in each case in amounts covering 100%
of the replacement cost value of the Improvements and Equipment
(including tenant improvements) with an agreed amount endorsement and
on terms that (i) are no less favorable than insurance covering other
similar properties owned by Lessee and (ii) are then carried by
similarly situated companies conducting business similar to that
conducted by Lessee. The form of the all-risk policy in effect during
the period the Property constitutes a
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Construction Period Property shall be on a builders risk,
non-reporting form and contain a right to occupancy endorsement. The
"all-risk" policy shall provide, among other things, sprinkler
coverage, boiler, machinery and plate glass coverage, cost of
demolition coverage, increased costs of construction and the value of
the undamaged portion of the building coverage and soft cost coverage.
The policies shall name Lessee as the insured and shall be endorsed to
name Lessor as a named additional insured and loss payee and the
Holders and the Agent, on behalf of itself 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 Event of Default
exists, any loss payable under the insurance policies required by this
Section for losses up to $7,000,000 will be paid to Lessee.
If, during the Term the area in which the 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 other Legal Requirement,
concerning flood insurance to the extent that it applies to any such
Property. During the Term, Lessee shall, in the operation and use of
the Property, maintain workers' compensation insurance consistent with
that carried by similarly situated companies conducting business
similar to that conducted by Lessee and containing minimum liability
limits of no less than $100,000. In the operation of the Property,
Lessee shall comply with workers, compensation laws applicable to
Lessee, and protect Lessor, the Holders, the Agent and each Lender
against any liability under such laws.
Coverage.
As of the date of this Lease and annually thereafter
during the Term, Lessee shall furnish Lessor, the
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Holders 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 (to the extent of their respective interests) Lessor, the
Holders, the Agent and the Lenders as additional insureds and loss payees and
evidencing the other requirements of this Article XIV. All such insurance
shall be at the cost and expense of Lessee and provided by nationally
recognized, financially sound insurance companies having a financial rating of
at least A-X in the most recent edition of Best's Insurance Reports or
otherwise acceptable to Lessor, the Holders and the Agent and legally qualified
to issue such insurance. Lessee shall cause such certificates to include a
provision for thirty (30) days, advance written notice by the insurer to
Lessor, the Holders and the Agent in the event of cancellation or material
alteration of such insurance. Additionally, all such policies will provide
that (i) the same may not be invalidated against Lessor, Holders, the Agent and
the Lenders by reason of any action or inaction or violation of a condition or
a breach of warranty of the policies or the application thereof by Lessee or
any other Person; (ii) that the insurer will give written notice to Lessor and
the Agent in the event of non-payment of premiums by Lessee when due; (iii)
that neither Lessor, the Holders, the Agent, any Lender nor any Person other
than Lessee shall be liable for the payment of any premiums, commissions or
assessments in connection with such insurance; (iv) a waiver of any rights of
subrogation of the insurer against Lessor, the Holders, the Agent or any
Lender; and (v) that all provisions thereof, except the limits of liability
(which shall be applicable to all insureds as a group) and all liability for
premiums (which shall be solely a liability of Lessee), shall operate in the
same manner as if there were a separate policy covering each such insured,
without right of contribution from any other insurance which may be carried by
any insured. If an 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.
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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 Lessor, the Holders, the Agent and the
Lenders to the extent of payments made to any such Person under any
such policy.
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.
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.
ARTICLE XV
Casualty and Condemnation.
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 Default or an Event of Default,
Lessee shall be entitled to receive (and Lessor hereby irrevocably
assigns to Lessee all
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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 the Property (i) if all or a portion of the 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 the Property or
any part thereof is the subject of a Condemnation; provided, however,
if a Default or an Event of Default shall have occurred and be
continuing or if such award, compensation or insurance proceeds shall
exceed $7,000,000, then such award, compensation or insurance proceeds
shall be paid directly to Lessor or, if received by Lessee, shall be
held in trust by Lessee for Lessor, and shall be paid over by Lessee
to Lessor and held in accordance with the terms of this subparagraph
(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 under the other Operative
Agreements.
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
to the fullest extent permitted by applicable law this Lease shall
control the rights of Lessor and Lessee in and to any such award,
compensation or insurance payment.
If Lessee shall receive notice of a Casualty or a
possible Condemnation of the Property or any interest therein where
damage to the Property is estimated to equal or exceed ten percent
(10%) of the Property Cost, Lessee shall give notice thereof to Lessor
and to the Agent promptly after the receipt of such notice. In such
event or in the event that a condemnation award, other compensation or
insurance proceeds in excess of $7,000,000 are received by Lessee or
Lessor in
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respect of any Casualty or Condemnation, then at the option of the
Lessor or the Agent to be exercised by written notice to Lessee,
Lessee shall be deemed to have delivered a Termination Notice and the
provisions of Sections 16.1 and 16.2 shall apply.
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 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.
If pursuant to this Section 15.1 this Lease shall
continue in full force and effect following a Casualty or
Condemnation, 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), diligently repair any damage to the 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, Equipment or other components of the Property (as
modified to give effect to any subsequent Modifications, any
Condemnation affecting the Property and all applicable Legal
Requirements), so as to restore the Property to substantially the same
remaining economic value, useful life, utility, condition, operation
and function as existed immediately prior to such Casualty or
Condemnation (assuming all maintenance and repair standards have been
satisfied). In such event, title to the Property shall remain with
Lessor.
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
Article III.
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Notwithstanding anything to the contrary set forth in
Section 15.1(a) or Section 15.1(e) hereof, if following the Completion
Date a Casualty occurs with respect to the Property or Lessee receives
notice of a Condemnation with respect to the Property, and following
such Casualty or Condemnation, the Property cannot reasonably be
restored, repaired or replaced on or before the day one hundred eighty
(180) days prior to the Expiration Date or the date nine (9) months
after the occurrence of such Casualty or Condemnation (if such
Casualty or Condemnation occurs during the Term) to the substantially
same remaining economic value, useful life, utility, condition,
operation and function as existed immediately prior to such Casualty
or Condemnation (assuming all maintenance and repair standards have
been satisfied) or on or before such day the Property is not in fact
so restored, repaired or replaced, then Lessee shall be required to
exercise its Purchase Option for the Property on the next Payment Date
and pay Lessor the Termination Value for the 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 the Property;
provided, further, that upon payment in full of the Termination Value
to the Lessor as herein provided any Excess Proceeds shall be paid to
Lessee. If a Default has occurred and is continuing and any Loans,
Holder Advance or other amounts are then owing, then any Excess
Proceeds (to the extent of any such Loans, Holder Advance or other
amounts owing) shall be paid to Lessor, held as security for the
performance of Lessee's obligations hereunder and under the other
Operative Agreements and applied to such obligations upon the exercise
of remedies in connection with the occurrence of an Event of Default.
If at any time prior to the Completion Date of the
Property (i) there occurs a Casualty (other than a Casualty caused by
the Lessee's negligence) or a Condemnation, the proceeds of which
exceed or are expected to exceed ten percent (10%) of the Construction
Budget or that will prevent
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the Property from being completed by the Construction Termination Date
or (ii) there shall occur a Force Majeure Event that will prevent the
Property from being completed by the Construction Termination Date,
then in either such event the Lessee on or prior to the date thirty
(30) days prior to the Construction Period Termination Date shall
notify the Lessor, the Agent, each Lender and each Holder of the
occurrence of such event in the manner set forth in Section 3.3 of the
Agency Agreement and the Lessor shall be entitled to the election as
so provided in said Section 3.3. of the Agency Agreement. In the
event that the Lessor shall, in accordance with said Section 3.3 of
the Agency Agreement, elect to require the Lessee to pay to the Lessor
the Maximum Residual Guaranty Amount then the Lessee shall pay to the
Lessor the Maximum Residual Guaranty Amount and shall surrender or
cause to be surrendered the Property in accordance with the terms and
provisions of Section 10.1 hereof.
Environmental Matters. Promptly upon Lessee's actual
knowledge of the presence of Hazardous Substances in any portion of the
Property 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 $50,000, 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 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. Any such undertaking shall be timely completed in
accordance with prudent industry standards. If Lessee does not deliver a
Termination Notice pursuant to Section 16.1, Lessee shall, upon completion of
remedial action by Lessee,
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cause to be prepared by a reputable licensed environmental engineer 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 engineer that the Environmental Violation has been remedied in
full compliance with applicable Environmental Law. Not less than sixty (60)
days prior to the time that Lessee elects to re-market the Property pursuant to
Section 20.1 hereof or any other provision of any Operative Agreement, Lessee
at its expense shall cause to be delivered to Lessor an environmental
assessment respecting the Property dated no more than thirty (30) days prior to
the date of delivery by an independent licensed professional engineer
acceptable to Lessor, the Holders and the Agent, and addressed to and in form,
scope and content reasonably satisfactory to Lessor, the Holders and the Agent
and which environmental assessment (i) shall be sufficient in scope to
determine compliance with all applicable Environmental Laws and all applicable
Legal Requirements and (ii) if such environmental assessment reveals the need
for additional review (including soil, air, water or groundwater samplings and
analysis) Lessee shall have provided such additional information or
environmental assessment as required by Lessor, the Holder and the Agent and,
any remediation recommended therein to be performed shall have been performed.
Notwithstanding any other provision of any Operative Agreement, if Lessee fails
to comply with the foregoing obligation regarding the environmental assessment,
Lessee shall be obligated to purchase the 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 the Property to a Person other than Lessee or any Affiliate of Lessee.
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 the Property. 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
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material written communications with any Governmental Authority relating to any
Environmental Law in connection with the Property. Lessee shall also promptly
provide such detailed reports of any such material environmental claims as may
reasonably be requested by Lessor.
ARTICLE XVI
Termination Upon Certain Events. If any of the following
occur: (i) as a result of a Casualty or Condemnation, 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 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, then in either such
event 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 Lessor in
the form described in Section 16.2(a) (a "Termination Notice") of the
termination of this Lease.
Procedures.
A Termination Notice shall contain: (i) notice of
termination of this Lease 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 Property and purchase such
Property on such Termination Date.
On the Termination Date, Lessee shall pay to Lessor
the Termination Value for the Property, and Lessor shall convey the
Property or the remaining portion thereof, if any, to Lessee (or
Lessee's designee), all in accordance with Section 20.2.
Change in Control. If as a result of one (1) or more
transactions prior to the Expiration Date, any Person or
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group of Persons (within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, as amended) other than Warburg Pincus Capital Company,
L.P. or its Affiliates, shall, without the approval of the board of directors
of the Lessee, obtain ownership or control of more than fifty percent (50%) of
the common stock of Lessee or fifty percent (50%) of the voting power of the
Lessee entitled to vote in the election of members of the board of directors of
the Lessee (any such event a "Change in Control"), then the Lessor shall have
an election (which such election shall be made at the direction of the Agent)
of one of the following options within 90 days of such Change in Control; (i)
approve the Change in Control and continue the Lease on the same terms and
conditions or such other terms as Lessor and Lessee shall agree upon with the
concurrence of the Agent and all of the lenders and all of the Holders or (ii)
if the requisite approval required in the immediately preceding clause (i)
shall not be secured, accelerate the Expiration Date of the Lease and treat the
next succeeding Payment Date as the Expiration Date of the Lease for all
purposes. The Lessor shall notify the Lessee within ninety (90) days of such
Change in Control of its election of (i) or (ii) as applicable under the
preceding sentence. In the event that the Lessor shall fail to notify the
Lessee of its election within such ninety (90) day period then Lessor shall be
deemed to have elected the option set forth in clause (ii) of this Section
16.3. In the event that the Lessor elects the option set forth in clause (ii)
of this Section 16.3, then Lessee shall be required to elect either the "Sale
Option" or the "Purchase Option" as provided in Article XX hereof within ten
(10) days of Lessor's election or deemed election thereof.
ARTICLE XVII
Lease Events of Default. If any one (1) or more of the
following events (each a "Lease Event of Default") shall occur:
Lessee shall fail to make payment of (i) any Basic
Rent (except as set forth in clause (ii)) within three (3) days after
the same has become due and payable or (ii) any Termination Value, on
the date any such payment is due and payable, or any payment of Basic
Rent or Supplemental Rent
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due on the due date of any such payment of Termination Value, or any
amount due on the Expiration Date;
Lessee shall fail to make payment of any Supplemental
Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii))
within (i) thirty (30) days after such payment has become due and
payable in the case of all Impositions (but such Impositions must, in
all events, be paid within ten (10) days of the same becoming
delinquent), and (ii) thirty (30) days as to all other Supplemental
Rent (other than as referred to in Section 17.1(a)(ii) and in clause
(i) of this Section 17.1(b)) after such payment has become due and
payable.
Lessee shall fail to maintain insurance as required
by Article XIV of this Lease or to deliver any requisite annual
certificate with respect thereto within ten (10) days of the date such
certificate is due under the terms hereof;
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, or Lessee shall fail to observe
in any material respect any Legal Requirement regarding the Property
and such default or failure shall continue for a period of thirty (30)
days after written notice thereof has been given to the Lessee by the
Lessor or the Agent;
(e) Any representation or warranty made by Lessee
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 when made;
(f) An Agency Agreement Event of Default shall
have occurred and be continuing;
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(g) Lessee or any of its Subsidiaries shall
default in the payment when due beyond any applicable grace period of
any principal of or interest on any Indebtedness having an outstanding
principal amount of at least $5,000,000; or any event or condition
shall occur which results in the acceleration of the maturity of any
such Indebtedness or enables the holder of any such Indebtedness or
any Person acting on such holder's behalf to accelerate the maturity
thereof;
(h) The liquidation or dissolution of Lessee or
any Material Subsidiary (unless the liquidation or dissolution of such
Material Subsidiary is in connection with an internal restructuring of
Lessee and such liquidation and dissolution has been approved by Agent
and the Majority Lenders), or the suspension of the business of Lessee
or any Material Subsidiary, or the filing by Lessee or any Material
Subsidiary 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 Lessee or any Material
Subsidiary indicating its consent to, approval of or acquiescence in,
any such petition or proceeding; the application by Lessee or any
Material Subsidiary for, or the appointment by consent or acquiescence
of Lessee or any Material Subsidiary of a receiver, a trustee or a
custodian of Lessee or any Material Subsidiary for all or a
substantial part of its property; the making by Lessee or any Material
Subsidiary of any assignment for the benefit of creditors; the
inability of Lessee or any Material Subsidiary or the admission by
Lessee or any Material Subsidiary in writing of its inability to pay
its debts as they mature; or Lessee or any Material Subsidiary taking
any corporate action to authorize any of the foregoing;
(i) The filing of an involuntary petition against
Lessee or any Material Subsidiary in bankruptcy or seeking
reorganization, arrangement, readjustment of its debts or for any
other relief under the United States Bankruptcy Code, as
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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 Lessee 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 Lessee or any Material Subsidiary, and the continuance of
any of such events for ninety (90) days undismissed or undischarged;
(j) The adjudication of Lessee or any Material
Subsidiary as bankrupt or insolvent;
(k) The entering of any order in any proceedings
against Lessee or any Material Subsidiary decreeing the dissolution,
divestiture or split-up of Lessee or any Material Subsidiary, 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
Lessee 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 Lessee Credit Agreement Event of Default
shall have occurred and be continuing and shall not have been waived;
(n) A final judgment or judgments for the payment
of money shall be rendered by a court or courts against Lessee or any
of its Material Subsidiaries in excess of $5,000,000 in the aggregate,
and (i) the same shall not be discharged (or provision shall not be
made for such discharge), or a stay of execution thereof shall not be
procured, within thirty (30) days from the date of entry thereof, or
(ii) Lessee or such Material Subsidiary shall not, within said period
of thirty (30) days, or such longer period during which execution of
the same shall have been stayed, appeal therefrom and cause the
execution thereof to be stayed during such appeal, or (iii) such
judgment or
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judgments shall not be discharged (or provisions shall not be made for
such discharge) within thirty (30) days after a decision has been
reached with respect to such appeal and the related stay has been
lifted;
(o) Lessee or any Material Subsidiary shall (i)
default in the payment of any
Indebtedness (other than as
referred to in Sections
17.1(a) and (b)) the
aggregate outstanding amount
of which is in excess of
$5,000,000 beyond the period
of grace, if any, provided in
the instrument or agreement
under which such Indebtedness
is created; or (ii) default
in the observance or the
performance of any other
agreement or conditions
relating to any Indebtedness
(other than as referred to in
Sections 17.1(a) and (b)) the
aggregate outstanding amount
of which is in excess of
$5,000,000 or contained in
any instrument or agreement
evidencing, securing or
relating thereto;
(p) Lessee or any member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess
of $5,000,000 which it shall have become liable to pay to the PBGC or
to a Pension Plan under Title IV of ERISA; or notice of intent to
terminate a Pension Plan or Pension Plans having aggregate Unfunded
Liabilities in excess of $5,000,000 shall be filed under Title IV of
ERISA by Lessee or any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause
a trustee to be appointed to administer any such Pension Plan or
Pension Plans or a proceeding shall be instituted by a fiduciary of
any such Pension Plan or Pension Plans against Lessee or any member of
the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA; or
a condition
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shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any such Pension Plan or Pension Plans must
be terminated; or
(q) Prior to the Basic Term Commencement Date the
Agency Agreement shall cease to be in full force and effect;
(r) This Lease or the Guaranty shall cease to be
in full force and effect;
then, in any such event, (i) the Property, if a Construction Period Property,
(whether or not the Basic Term has previously commenced) shall automatically
become subject to the terms of this Lease as more specifically provided in
Section 2.2(b) hereof and (ii) Lessor may, in addition to the other rights and
remedies provided for in this Article XVII and in Section 18.1, terminate this
Lease by giving Lessee five (5) days notice of such termination, 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.
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 Property. Lessor may
enter upon and repossess the Property 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 Property. 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 Property promptly to Lessor,
in the manner and condition required by, and otherwise in accordance with the
provisions of, Section 22.1(c) hereof.
No Obligation to Relet. If a Lease Event of Default
shall have occurred and be continuing, and whether or not this
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Lease shall have been terminated pursuant to Section 17.1, Lessor may, BUT
SHALL BE UNDER NO OBLIGATION TO, relet the Property or any portion thereof, 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 of free rent) and for such purposes as Lessor
may determine, and Lessor may collect, receive and retain the rents resulting
from such reletting. Lessor and Lessee further confirm their intention that
this Lease be treated as a loan and financing arrangement and Lessee
acknowledges that, as such, the provisions set forth in Article XVII are
designed and intended to provide for the repayment of such loan under such
financing arrangement to the extent and in the manner provided. Accordingly,
notwithstanding anything herein to the contrary and notwithstanding any law or
rule of law to the contrary, Lessor shall have no obligation following a Lease
Event of Default to mitigate damages by reletting or otherwise leasing all or
any portion of the Property, and Lessee does hereby expressly waive any and all
rights it may have to require Lessor or any successor in interest to lease or
relet all or any portion of the Property or any right of Lessee to receive a
credit for any funds received by Lessor in connection with any reletting of the
Property it may, in its sole and absolute discretion, elect to undertake.
Damages. Neither (a) the termination of this Lease
pursuant to Section 17.1; (b) the repossession of the Property; nor (c) the
failure of Lessor to relet the Property 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
without limitation 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
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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,
without reduction, deduction or credit for the net proceeds, if any, which are
actually received by Lessor with respect to the period in question as a result
of any reletting of the 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. 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, SET-OFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT
WHATSOEVER.
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 Lessor and Lessee agree that
Lessee has granted, pursuant to Section 7.1(b) hereof and any 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, 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 the Property.
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
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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 Property, Improvements, Fixtures,
Modifications, Equipment and all components thereof, in each case in recordable
form and otherwise in conformity with local custom and free and clear of the
Lien of this Lease (including without limitation the release of any memoranda
of Lease and/or the Lease Supplement recorded in connection therewith) and any
Lessor Liens. The Property shall be conveyed to Lessee "AS-IS, WHERE-IS" and
in its 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 Property, the Improvements,
Fixtures, Modifications, Equipment or the components thereof unless Lessee
shall have paid in full the Termination Value. LESSEE SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT ITS OBLIGATIONS UNDER THIS SECTION 17.6 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, SET-OFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT
WHATSOEVER.
Environmental Costs. 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 pay directly to any third
party (or at Lessor's election, reimburse Lessor) for the cost of any
environmental testing and/or remediation work undertaken respecting the
Property, as such testing or work is deemed appropriate in the reasonable
judgment of Lessor. Lessee shall pay all amounts referenced in the immediately
preceding sentence within ten (10) days of any request by Lessor for such
payment. The provisions of this Section 17.7
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shall not limit the obligations of Lessee under any Operative Agreement
regarding indemnification obligations, environmental testing, remediation
and/or work.
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.
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 acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment and restoration of
the Property (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 acquisition,
installation, testing, use, development, construction, operation, maintenance,
repair, refurbishment and restoration of the Property.
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
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
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expense of Lessee, including without limitation 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 the Property, or any other 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
Provisions Relating to Lessee's Exercise of its Purchase
Option. Subject to Section 19.2, in connection with any termination of this
Lease 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, 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 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 Lessor. The Property shall be conveyed to Lessee "AS-IS, "WHERE-IS" and
in its then present physical condition.
No Purchase or Termination With Respect to Less than All
of the Property. Lessee shall not be entitled to exercise its Purchase Option
or the Sale Option separately with respect to the Land, Equipment and/or
Improvements comprising the Property but shall be required to exercise its
Purchase Option or its Sale Option with respect to the entire Property.
ARTICLE XX
Purchase Option or Sale Option-General Provisions. Not
less than one hundred twenty (120) days and no more than one
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hundred eighty (180) days prior to the Expiration Date or (respecting the
Purchase Option only) at any time after the Land Closing Date, Lessee may give
Lessor and the Agent irrevocable written notice (the "Election Notice") that
Lessee is electing to exercise either (a) the option to purchase the Property
on the Expiration Date or on any Payment Date as specified in the Election
Notice (the "Purchase Option") or (b) with respect to an Election Notice given
in connection with the Expiration Date only, the option to re-market the
Property to a Person other than Lessee or any Affiliate of Lessee and cause a
sale of the Property to occur on the Expiration Date pursuant to the terms of
Section 22.1 (the "Sale Option"). If Lessee does not give an Election Notice
indicating the Purchase Option or the Sale Option at least one hundred twenty
(120) days and not more than one hundred eighty (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. For purposes hereof the term "Final Expiration Date" refers
to the last day of a Renewal Term that constitutes an Expiration Date. If
Lessee shall either (i) elect (or be deemed to have elected) to exercise the
Purchase Option or (ii) elect the Sale Option and fail to cause the Property to
be sold in accordance with the terms of Section 22.1 on the Expiration Date,
then in either case Lessee shall pay to Lessor on the date on which such
purchase or sale is scheduled to occur an amount equal to the Termination Value
for the Property (which the parties do not intend to be a "bargain" purchase),
Lessee shall comply with the terms and provisions of Section 22.1(c) and, upon
receipt of such amounts and satisfaction of such obligations, Lessor shall
transfer to Lessee all of Lessor's right, title and interest in and to the
Property in accordance with Section 20.2.
Lessee Purchase Option. 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 Purchase Option, Lessee
shall purchase the Property on the Expiration Date or Payment Date (all as
specified in the Election Notice) at a price equal to the Termination Value
(which the parties do not intend to be a "bargain" purchase price).
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Subject to Section 19.2, in connection with any termination of this
Lease 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, 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: (a) a special or limited warranty deed conveying the Property
(to the extent it is real property) to Lessee free and clear of the Lien of
this Lease, the Lien of the Credit Documents and any Lessor, Liens; (b) 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; (c) any real estate tax affidavit or other
document required by law to be executed and filed in order to record the deed;
and (d) FIRPTA affidavits. The Property shall be conveyed to Lessee "AS-IS,
WHERE-IS" and in its then present physical condition.
If the 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 the Property pursuant to this Section 20.2.
On the Expiration Date and/or any Payment Date on which Lessee has
elected to exercise its Purchase Option, unless such amounts have been
otherwise paid at such time, Lessee shall pay (or cause to be paid) to Lessor
and all other parties, as appropriate, the sum of all costs and expenses
referred to in Section 22.2(a), and all Rent and all other amounts then due and
payable or accrued under this Lease and/or any other Operative Agreement.
Third Party Sale Option.
Provided, that (i) no Default or Event of Default
shall have occurred and be continuing and (ii) the Election Notice has
been appropriately given specifying the Sale Option, Lessee shall
undertake to cause a sale of the
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Property on the Expiration Date (all as specified in the Election
Notice) in accordance with the provisions of Section 22.1 hereof.
In the event Lessee exercises the Sale Option then,
as soon as practicable and in all events not less than sixty (60) days
prior to the Expiration Date, Lessee at its expense shall cause to be
delivered to Lessor an environmental assessment for the Property
recently prepared (no more than thirty (30) days old prior to the date
of delivery) by an independent licensed professional engineer
acceptable to Lessor, the Holders and the Agent, addressed to and in
form, scope and content satisfactory to Lessor, the Holders and the
Agent. In the event that Lessor and the Agent shall not have received
such environmental assessment by the date sixty (60) days prior to 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 the
Property and any and all other amounts due and owing hereunder. Upon
receipt of such payment and all other amounts due under the Operative
Agreements, Lessor shall transfer to Lessee all of Lessor's right,
title and interest in and to the Property in accordance with Section
19.1.
ARTICLE XXI
Article XXI Intentionally Omitted
ARTICLE XXII
Sale Procedure.
During the Marketing Period, Lessee, on behalf of
Lessor, shall obtain bids for the cash purchase of the Property in
connection with a sale to one (1) or more third party purchasers to be
consummated on the Expiration Date
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(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 the 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 and all
other parties, as appropriate, the sum of all costs and expenses
referred to in Section 22.2(a), 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 Lessee if any such bid is
greater than or equal to the Limited Recourse Amount and represent
bona fide offers from one (1) or more third party purchasers. If the
price which a prospective purchaser or the prospective purchasers
shall have offered to pay for the Property on the Expiration Date is
less than the Limited Recourse Amount or if such bid does not
represent a bona fide offer from one (1) or more third parties, Lessor
may elect to retain the Property by giving Lessee written notice of
Lessor's election to retain the Property, and upon receipt of such
notice, Lessee shall surrender, or cause to be surrendered, the
Property in accordance with the terms and conditions of Section 10.1.
Unless Lessor shall have elected to retain the Property
pursuant to the provisions of the final sentence of the preceding
paragraph, Lessee shall arrange for Lessor to sell the Property 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
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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: (a) a
special or limited warranty deed conveying the Property (to the extent
it is real property titled to Lessor) to the appropriate purchaser
free and clear of the Lien of this Lease, the Lien of the Credit
Documents and any Lessor Liens; (b) a Bill of Sale conveying the
Property (to the extent it is personal property) titled to Lessor to
the appropriate purchaser free and clear of the Lien of this Lease,
the Lien of the Credit Documents and any Lessor Liens; (c) any real
estate tax affidavit or other document required by law to be executed
and filed in order to record the deed; and (d) FIRPTA affidavits, as
appropriate. Lessee shall surrender the Property so sold or subject
to such documents to the 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 the Property. If the Property is not either (i) sold
on the Sale Date in accordance with the terms of this Section 22.1, or
(ii) retained by Lessor pursuant to an affirmative election made by
Lessor pursuant to the second sentence of the second paragraph of this
Section 22.1(a), then Lessee shall be obligated to pay Lessor on the
Sale Date an amount equal to the Termination Value less any sales
proceeds received and to comply with the terms and provisions of
Section 22.1(c).
If the Property is sold on a Sale Date to one (1) or
more third party purchasers in accordance with the terms of Section
22.1(a) and the purchase price paid for the Property is less than the
Property Cost for such Property (hereinafter such difference shall be
referred to as the "Deficiency Balance"), then Lessee hereby
unconditionally promises to pay to Lessor on the Sale Date the lesser
of (i) the Deficiency Balance, or (ii) the Maximum Residual Guarantee
Amount. On a Sale Date if (w) no Event of Default
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has occurred and is continuing, (x) Lessor receives the Termination
Value for the Property from one (1) or more third party purchasers,
(y) Lessor receives all other amounts specified in the last sentence
of the first paragraph of Section 22.1(a) and (z) the purchase price
paid for the Property on such date exceeds the Property Cost, then
Lessee may retain such excess. If the Property is retained by Lessor
pursuant to an affirmative election made by Lessor pursuant to the
provisions of Section 22.1(a), then Lessee hereby unconditionally
promises to pay to Lessor on the Sale Date an amount equal to the
Maximum Residual Guarantee Amount. Any payment of the foregoing
amounts described in this Section 22.1(b) shall be made together with
a payment of all other amounts referenced in the last sentence of the
first paragraph of Section 22.1(a). Upon payment in full of the
Maximum Residual Guarantee Amount as provided in this Section 22.1(b)
and all other amounts required to be paid by Lessee pursuant to the
Operative Agreements including, without limitation, the amounts
referenced in this Section 22.1(b), and provided Lessee shall comply
with the requirements of Section 22.1(c) hereof, then Lessee shall
have no further obligations under this Lease except for the
indemnification obligations under Section 13 of the Participation
Agreement.
In the event that the Property is either sold to one
(1) or more third party purchasers on the Sale Date or retained by
Lessor in connection with an affirmative election made by Lessor
pursuant to the provisions of Section 22.1(a), then in either case on
the applicable Sale Date Lessee shall provide Lessor or such third
party purchaser with (i) all permits, certificates of occupancy,
governmental licenses and authorizations necessary to use, operate,
repair, access and maintain the Property for its intended purposes,
(ii) such manuals, permits, easements, licenses, intellectual
property, know-how, 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, operation, repair, access to or maintenance
of the Property for its intended purpose or otherwise as Lessor or
such third party purchaser(s) shall reasonably request (and a
royalty-free
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license or similar agreement to effectuate the foregoing on terms
reasonably agreeable to Lessor or such third party purchaser(s), as
applicable), (iii) a services agreement covering such services and
supplies to be provided by Lessee as Lessor or such third party
purchaser(s) may request in order to use and operate the Property for
its intended purposes at such rates (not in excess of arm's-length
fair market rates) as shall be acceptable to Lessee and Lessor or such
third party purchaser(s), and (iv) such quitclaim deeds, releases, and
bills of sale respecting the Property as Lessor or such third party
purchaser(s) shall reasonably request. All assignments, licenses,
easements, agreements and other deliveries required by clauses (i),
(ii), (iii), and (iv) of this paragraph (c) shall be in form
reasonably satisfactory to Lessor or such third party purchaser(s), as
applicable, and shall be fully assignable (including without
limitation both primary assignments and assignments given in the
nature of security) without payment of any fee, cost or other charge.
Application of Proceeds of Sale. Lessor shall apply the
proceeds of sale of the Property in the following order of priority:
FIRST, to pay or to reimburse Lessor for the payment
of all reasonable costs and expenses incurred by Lessor in connection
with the sale;
SECOND, so long as the Credit Agreement is in effect
and any Holder Advances or any amount is owing to the Holders under
any Operative Agreement, to the Agent to be applied pursuant to
intercreditor provisions between the Lenders and the Holders contained
in the Operative Agreements; and
THIRD, to Lessee.
Indemnity for Excessive Wear. If the proceeds of the
sale described in Section 22.1 with respect to the Property, less all expenses
incurred by Lessor in connection with such sale, shall be less than the Limited
Recourse Amount, and at the time of
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such sale it shall have been reasonably determined (pursuant to the Appraisal
Procedure described in Section 22.4 below) that the Fair Market Sales Value of
the Property, shall have been impaired by greater than expected wear and tear
during the term of the Lease, as a result of the failure of the Lessee to
maintain the Property in accordance with the terms of this 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.
Appraisal Procedure. For determining the Fair Market
Sales Value of the Property 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 the Fair Market Sales Value or other amount at issue within a period of ten
(10) days from commencement of the Appraisal Procedure under the applicable
section of the Lease; and if Lessor and Lessee cannot agree on such Fair Market
Sales Value, or other amount at issue, as applicable, within ten (10) days,
then such issue shall be submitted by Lessor and Lessee to two (2) qualified
appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, and any
decision unanimously reached by such appraisers shall be binding on Lessor and
Lessee; 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 decision by such appointed appraiser shall be binding on Lessee and
Lessor. If the two (2) appraisers cannot agree on such Fair Market Sales
Value, or other amount at issue, as applicable, within twenty (20) days after
both shall have been appointed, then a third appraiser shall be selected by the
two (2) appraisers or, failing agreement as to such third appraiser within
thirty (30) days after both shall have been appointed, by the American
Arbitration Association. The decisions of the three (3) 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 (2)
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
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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.
Certain Obligations Continue. During the Marketing
Period, the obligation of Lessee to pay Rent with respect to the Property
(including without limitation 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, the amount
due under Section 22.3, if any, and all other amounts due to Lessor or any
other Person with respect to the Property or any Operative Agreement. 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.
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ARTICLE XXIII
Holding Over. If Lessee shall for any reason remain in
possession of the Property after the expiration or earlier termination of this
Lease (unless the Property is conveyed to Lessee), such possession shall be as
a tenancy at sufferance during which time Lessee shall continue to pay
Supplemental Rent that would be payable by Lessee hereunder were the Lease then
in full force and effect with respect to the Property and Lessee shall continue
to pay Basic Rent at one hundred ten percent (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 ten percent
(10%) amount shall be applied by Lessor to the payment of the Loans pursuant to
the Credit Agreement and the Holder Advances pursuant to the Trust Agreement
pro rata between the Loans and the Holder Advances. 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 the 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 (unless the Property is
conveyed to Lessee) and nothing contained herein shall be read or construed as
preventing Lessor from maintaining a suit for possession of the 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 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 the Property as a result of the
damage or destruction thereof by fire, the elements, casualties, thefts, riots,
wars or otherwise is assumed by Lessee, and Lessor shall in no event be
answerable or accountable therefor.
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ARTICLE XXV
Assignment.
Lessee may not assign this Lease or any of its rights
or obligations hereunder or with respect to the Property in whole or
in part to any Person without the prior written consent of the Agent,
the Holders and Lessor; provided, however, upon written notice to the
Lessor and the Agent, Lessee may assign its rights under this Lease to
a wholly owned Subsidiary of Lessee.
No assignment by Lessee (referenced in this Section
25.1 or otherwise) or other relinquishment of possession to 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.
Subleases.
Promptly, but in any event within five (5) Business
Days, following the execution and delivery of any sublease permitted
by this Article XXV, Lessee shall notify Lessor and the Agent of the
execution of such sublease. As of the date of each Lease Supplement,
Lessee shall lease the Property described in such Lease Supplement
from Lessor, and any existing tenant respecting such Property shall
automatically be deemed to be a subtenant of Lessee and not a tenant
of Lessor.
Lessee may sublet the Property or any portion thereof
(i) to any wholly-owned Subsidiary of Lessee and (ii) to any other
Person, without the prior written consent of the Agent, any Holder or
Lessor provided that the term of any such sublease complies with the
provisions of Section 25.2(c) and such sublease is, at all times,
subordinate to this Lease and all of the Security Documents .
No sublease (referenced in this Section 25.2 or
otherwise) or other relinquishment of possession to the
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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. During the Basic Term, the term of any such
sublease shall not extend beyond the Basic Term. During any Renewal
Term, the term of any such sublease shall not extend beyond such
Renewal Term. In the event that the Lessor, Agent, Holders and
Lenders in their sole and absolute discretion shall permit one or more
Extended Renewal Terms, then, during any such Extended Renewal Term,
the term of any such sublease shall not extend beyond such Extended
Renewal Term. Each sublease shall be expressly subject and
subordinate to this Lease and all of the Security Documents.
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
Acceptance of Surrender. No surrender to Lessor of this
Lease or of all or any portion of the Property or of any interest therein shall
be valid or effective unless agreed to and accepted in writing by Lessor and
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.
No Merger of Title. There shall be no merger of this
Lease or of the leasehold estate created hereby by reason of the fact that the
same Person may acquire, own or hold, directly or indirectly, in whole or in
part, (a) this Lease or the
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leasehold estate created hereby or any interest in this Lease or such leasehold
estate, (b) any right, title or interest in the Property, (c) any Notes, or (d)
a beneficial interest in Lessor.
ARTICLE XXVIII
Incorporation of Covenants. Reference is made to the
Lessee Credit Agreement and the representations and warranties of Lessee
contained in Articles VI and VII of the Lessee Credit Agreement (hereinafter
referred to as the "Incorporated Representations and Warranties") and the
covenants contained in Articles VIII, IX and X of the Lessee Credit Agreement
(hereinafter referred to as the "Incorporated Covenants"). Lessee agrees with
Lessor that the Incorporated Representations and Warranties and the
Incorporated Covenants (and all other relevant provisions of the Lessee Credit
Agreement related thereto, including without limitation the defined terms
contained in Article I 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 Lessor,
without giving effect to any waiver, amendment, modification or replacement of
the Lessee 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 Lessee Credit Agreement or an amendment or
modification is executed with respect to the Lessee 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 Lessee Credit Agreement with a
similar credit facility (the "New Facility") the representations and warranties
and covenants (affirmative, negative and financial) contained in the New
Facility which correspond to the representations and warranties and covenants
contained in Articles
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VI, VII, VIII, IX and X of the Lessee Credit Agreement shall become the
Incorporated Representations and Warranties and the Incorporated Covenants
hereunder only if consented to in writing by Lessor and the Majority Lenders
and, if such consent is not granted or if the Lessee Credit Agreement is
terminated and not replaced, then the representations and warranties and
covenants contained in Articles VI, VII, VIII, IX and X of the Lessee 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.
ARTICLE XXIX
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 prepaid 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 (5) 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:
LCI International, Inc.
8180 Greensboro Drive, Suite 800
McLean, Virginia 22102
Attention: John J. Dillon
Telephone No.: (703) 848-4490
Telecopy No.: (703) 918-4460
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with copy to:
Squire, Sanders & Dempsey
41 South High Street
Columbus, Ohio 43215
Attention: Richard W. Rubenstein
Telephone No.: (614) 365-2700
Telecopy No.: (614) 365-2499
If to Lessor:
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Val T. Orton, Vice President
Telephone No.: (801) 246-5300
Telecopy No.: (801) 246-5053
with a copy to the Agent:
NationsBank of Texas, N.A.
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: Brian D. Corum
Telephone No.: (214) 508-0921
Telecopy No.: (214) 508-9390
with a copy to:
Kennedy Covington Lobdell & Hickman, L.L.P.
NationsBank Corporate Center
100 No. Tryon Street, Suite 4200
Charlotte, North Carolina 28202-4006
Attention: Glen B. Hardymon
Telephone No.: (704) 331-7446
Telecopy No.: (704) 331-7598
or such additional parties and/or other address as such party may hereafter
designate, and shall be effective upon receipt or refusal thereof.
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ARTICLE XXX
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.
Any provision of this Lease which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
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, subject to Sections 10.2 and 14.5 of the Participation
Agreement.
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.
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.
Counterparts. This Lease may be executed in any number
of counterparts, and by different parties hereto in separate counterparts, each
of which when so executed shall be an original, but all of which shall together
constitute one (1) and the same instrument.
GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF VIRGINIA
WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
Calculation of Rent. All calculation of Rent payable
hereunder shall be computed based on the actual number of
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days elapsed over a year of three hundred sixty (360) days or, to the extent
such Rent is based on the Prime Lending Rate, three hundred sixty-five (365)
(or three hundred sixty-six (366), as applicable) days.
Memoranda of Lease and Lease Supplements. This Lease
shall not be recorded; provided, Lessor and Lessee shall promptly record a
memorandum of this Lease and a Lease Supplement (in substantially the form of
Exhibits B and B-1, as applicable, attached hereto) regarding the Property
promptly after the Land Acquisition Date and the commencement of the Basic
Term, as applicable 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.
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 sale of the Property and any and all other
Rent and other amounts received hereunder shall be subject to the intercreditor
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).
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 Property (and in no circumstance to the
Agent, the Lenders, the Holders 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 Property 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.
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WAIVERS OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, LESSOR AND LESSEE IRREVOCABLY AND UNCONDITIONALLY WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS LEASE OR ANY COUNTERCLAIM THEREIN.
Exercise of Lessor Rights. Lessee hereby acknowledges
and agrees that the rights and powers of Lessor under this Lease have been
assigned to the Agent pursuant to the terms of the Security Agreement and the
other Operative Agreements.
Submission To Jurisdiction; Waivers. Each of the parties
hereto hereby irrevocably and unconditionally:
submits for itself and its property in any legal
action or proceeding relating to this Lease and the other Operative Agreements
to which it is a party, or for recognition and enforcement of any judgement in
respect thereof, to the personal jurisdiction of the state and federal courts
located in Mecklenburg County, North Carolina;
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;
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
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.
Discharge of Lessee's Obligations by its Affiliates.
Lessor agrees that performance of any of Lessee's obligations hereunder by one
or more of Lessee's Affiliates or one or more of Lessee's sublessees of the
Property or any part thereof shall
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constitute performance by Lessee of such obligations to the same extent and
with the same effect hereunder as if such obligations were performed by Lessee,
but no such performance shall excuse Lessee from any obligation not performed
by it or on its behalf under the Operative Documents.
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 WITHOUT
LIMITATION 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 NON-USURIOUS 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 NON-USURIOUS 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
NON-USURIOUS 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
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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 WITHOUT LIMITATION ANY RENEWAL OR
EXTENSION) OF THIS LEASE SO THAT THE AMOUNT OF INTEREST ON ACCOUNT OF SUCH
PAYMENTS DOES NOT EXCEED THE MAXIMUM NON-USURIOUS AMOUNT PERMITTED BY
APPLICABLE LAW.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have caused this Lease to be duly
executed and delivered as of the date first above written.
LCI INTERNATIONAL, INC.
[CORPORATE SEAL]
By:
---------------------------------------------------------
Name:
-------------------------------------------------------
Title:
------------------------------------------------------
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as the Owner Trustee under
the Stuart Park Trust, as Lessor
By:
---------------------------------------------------------
Name: Val T. Orton
Title: Vice President
Receipt of this original
counterpart of the foregoing
Lease is hereby acknowledged
as the date hereof
NATIONSBANK OF TEXAS, N.A.,
as the Agent
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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EXHIBIT A TO THE DEED OF LEASE AGREEMENT
Legal Description of the Land
[TO BE SUPPLIED]