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EXHIBIT 10.09
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MASTER LEASE, DEED OF TRUST AND SECURITY AGREEMENT
THIS DOCUMENT SECURES FUTURE ADVANCES
Dated as of November 25, 1997
among
BMO LEASING (U.S.), INC.,
as the Agent Lessor for the Lessors,
and
ALUMAX MILL PRODUCTS, INC.
as the Lessee,
and
WARD WILLIFORD, ESQ.,
as the Trustee pursuant to Section 25.2 hereof
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This Master Lease, Deed of Trust and Security Agreement is recorded in
connection with a lien in favor of the Lenders under the Loan Agreement
simultaneously created as of the date hereof. This Master Lease, Deed of Trust
and Security Agreement has been executed in several counterparts. To the extent,
if any, that this Master Lease, Deed of Trust and Security Agreement constitutes
chattel paper (as such term is defined in the Uniform Commercial Code as in
effect in any applicable jurisdiction), no lien on this Master Lease, Deed of
Trust and Security Agreement may be created through the transfer or possession
of any counterpart other than the original counterpart containing the receipt
therefor executed by BANK OF MONTREAL as the Administrative Agent for the
Lenders, on or following the signature page hereof. This counterpart is not the
original counterpart
ATTENTION OF RECORDING OFFICERS: Certain of the Property is or will become
"fixtures" (as that term is defined in the Uniform Commercial Code) on the real
estate described in Schedule I attached hereto and this instrument, upon being
filed for record in the real estate records, shall operate also as a financing
statement upon such of the Property which is or may become fixtures. The Lessee
has an interest of record in the Property. This instrument is to be recorded in,
among other places, the real estate records of the county in which such property
is located.
This Document Prepared By
and Return To:
James R. Theiss
Chapman and Cutler
111 West Monroe Street
Chicago, Illinois 60603-4080
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS ........................................ 1
ARTICLE II MASTER LEASE ....................................... 2
Section 2.1. Acceptance and Lease of Property .................. 2
Section 2.2. Acceptance Procedure .............................. 2
Section 2.3. Lease Term ........................................ 2
Section 2.4. Intentionally omitted ............................. 2
Section 2.5. Each Lessor to Have an Undivided Interest ......... 2
ARTICLE III PAYMENT OF RENT .................................... 2
Section 3.1. Rent .............................................. 2
Section 3.2. Payment of Rent ................................... 3
Section 3.3. Supplemental Rent ................................. 3
Section 3.4. Method of Payment ................................. 3
ARTICLE IV QUIET ENJOYMENT; RIGHT TO INSPECT .................. 4
Section 4.1. Quiet Enjoyment ................................... 4
Section 4.2. Right to Inspect .................................. 4
ARTICLE V NET LEASE .......................................... 4
Section 5.1. Net Lease ......................................... 4
Section 5.2. No Termination or Abatement ....................... 5
ARTICLE VI SUBLEASES .......................................... 6
ARTICLE VII LESSEE ACKNOWLEDGMENTS ............................. 6
Section 7.1. Condition of the Property ......................... 6
Section 7.2. Risk of Loss ...................................... 7
ARTICLE VIII POSSESSION AND USE OF THE PROPERTY ................. 7
Section 8.1. Utility Charges ................................... 7
Section 8.2. Use of the Property ............................... 7
Section 8.3. Compliance with Requirements of Laws and Insurance
Requirements ...................................... 7
Section 8.4. Assignment by Lessee .............................. 7
ARTICLE IX MAINTENANCE AND REPAIR; RETURN ..................... 8
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ARTICLE X MODIFICATIONS ................................................ 8
ARTICLE XI NO LIENS; EASEMENTS .......................................... 9
Section 11.1. No Liens ................................................... 9
Section 11.2. Grants and Releases of Easements; Agent Lessor and
Lessors' Waivers ........................................... 10
ARTICLE XII PERMITTED CONTESTS ........................................... 11
ARTICLE XIII INSURANCE .................................................... 11
Section 13.1. Public Liability and Workers' Compensation Insurance ....... 11
Section 13.2. Hazard and Other Insurance ................................. 12
Section 13.3. Insurance Coverage ......................................... 12
ARTICLE XIV CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS ............. 13
Section 14.1. Casualty and Condemnation .................................. 13
Section 14.2. Environmental Matters ...................................... 15
ARTICLE XV TERMINATION OF LEASE ......................................... 16
Section 15.1. Termination upon Certain Events ............................ 16
Section 15.2. Termination Procedures ..................................... 16
ARTICLE XVI EVENTS OF DEFAULT ............................................ 17
Section 16.1. Lease Events of Default .................................... 17
Section 16.2. Remedies ................................................... 19
Section 16.3. Waiver of Certain Rights ................................... 22
Section 16.4. Deed of Trust Remedies ..................................... 22
ARTICLE XVII AGENT LESSOR'S RIGHT TO CURE ................................. 23
Section 17.1. The Agent Lessor's Right to Cure the Lessee's Lease
Defaults ................................................... 23
ARTICLE XVIII PURCHASE PROVISIONS .......................................... 23
Section 18.1. Purchase of the Property ................................... 23
Section 18.2. Expiration Date Purchase Obligation ........................ 24
Section 18.3. Acceleration of Purchase Obligation ........................ 24
ARTICLE XIX EXTENSION OF EXPIRATION DATE ................................. 24
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ARTICLE XX REMARKETING OPTION .......................................... 25
Section 20.1. Option to Remarket ........................................ 25
Section 20.2. Procedures During Remarketing ............................. 26
Section 20.3. Remedies for Failed Remarketing ........................... 28
Section 20.4. No Sale of Property ....................................... 29
ARTICLE XXI PROCEDURES RELATING TO PURCHASE OR REMARKETING OPTIONS ...... 29
Section 21.1. Provisions Relating to the Exercise of Purchase Option or
Obligation and Conveyance upon Remarketing; Conveyance
upon Certain Other Events ................................. 29
ARTICLE XXII ESTOPPEL CERTIFICATES ....................................... 31
Section 22.1. Estoppel Certificates ..................................... 31
ARTICLE XXIII ACCEPTANCE OF SURRENDER ..................................... 31
ARTICLE XXIV NO MERGER OF TITLE .......................................... 31
ARTICLE XXV INTENT OF THE PARTIES ....................................... 32
Section 25.1. Ownership of the Property ................................. 32
Section 25.2. Liens and Security Interests .............................. 32
Section 25.3. Security Agreement ........................................ 38
Section 25.4. Fixture Filing ............................................ 38
Section 25.5. Successor Trustees ........................................ 38
ARTICLE XXVI MISCELLANEOUS ............................................... 39
Section 26.1. Severability; Perpetuities ................................ 39
Section 26.2. Amendments and Modifications .............................. 39
Section 26.3. No Waiver ................................................. 40
Section 26.4. Notices ................................................... 40
Section 26.5. Successors and Assigns .................................... 40
Section 26.6. Headings and Table of Contents ............................ 40
Section 26.7. Counterparts .............................................. 40
Section 26.8. Governing Law ............................................. 40
Section 26.9. Original Lease ............................................ 40
Section 26.10. Time of Essence ........................................... 41
Section 26.11. Memorandum of Lease ....................................... 41
Section 26.12. The Trustee ............................................... 41
Section 26.13. Usury ..................................................... 41
Signature ..................................................................... 42
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ATTACHMENTS TO MASTER LEASE AND DEED OF TRUST:
SCHEDULE I -- Legal Description of Land
SCHEDULE II -- Description of Improvements
SCHEDULE III -- Description of Equipment
SCHEDULE IV -- Fixed Rent Payments
EXHIBIT A -- Memorandum of Lease
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MASTER LEASE, DEED OF TRUST AND SECURITY AGREEMENT
THIS DOCUMENT SECURES FUTURE ADVANCES
THIS MASTER LEASE, DEED OF TRUST AND SECURITY AGREEMENT (this "Master
Lease"), dated as of November 25, 1997 among ALUMAX MILL PRODUCTS, INC., a
Delaware corporation, as Lessee with offices located at 1480 Manheim Pike,
Lancaster, Pennsylvania 17604 (the "Lessee"), BMO LEASING (U.S.), INC., a
Delaware corporation, as agent for the Lessors and whose principal offices are
located at 115 South LaSalle Street, Chicago, Illinois (in such capacity, the
"Agent Lessor") and WARD WILLIFORD, ESQ., as Deed of Trust Trustee for the use
and benefit of the Agent Lessor, whose principal offices are located at 3131
Turtle Creek Boulevard, Suite 101, Dallas, Texas 75219 (the "Trustee").
W I T N E S S E T H:
WHEREAS, pursuant to a Participation Agreement dated as of the date
hereof (as amended, modified, restated or supplemented from time to time, the
"Participation Agreement"), among the Lessee, the Guarantor, the Agent Lessor,
the various financial institutions as are or may from time to time become
Lessors hereunder (the "Lessors") or lenders under the Loan Agreement (the
"Lenders"), and Bank of Montreal, as Arranger (in such capacity, the
"Arranger"), and as Administrative Agent (in such capacity, the "Administrative
Agent") for the Lenders, the Lenders and the Lessors have agreed to finance the
acquisition of the Property;
WHEREAS, on the Acquisition Date, the Agent Lessor (on behalf of the
Lessors) will acquire the Property from a third party designated by the Lessee;
WHEREAS, the Agent Lessor desires to lease to the Lessee, and the
Lessee desires to lease from the Agent Lessor, the Property, subject to the
terms of this Master Lease;
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless the context shall otherwise require, capitalized terms used but
not defined herein shall have the meanings assigned thereto in Appendix A to the
Participation Agreement; and the rules of interpretation set forth in Appendix A
to the Participation Agreement shall apply to this Master Lease.
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ARTICLE II
MASTER LEASE
Section 2.1. Acceptance and Lease of Property. Subject to the
conditions set forth in the Participation Agreement, including without
limitation the satisfaction or waiver of the conditions set forth in Article VI
thereof, the Agent Lessor hereby agrees to (a) accept, pursuant to the terms of
the Participation Agreement, delivery on the Acquisition Date of the Property
(except the Ground Lease) by the seller thereof, (b) enter into the Ground
Lease, and (c) simultaneously demise and lease to the Lessee hereunder for the
Lease Term, the Agent Lessor's interest in the Property, including the Ground
Lease and the Lessee hereby agrees, subject to the satisfaction or waiver of the
conditions set forth in Article VI of the Participation Agreement, expressly for
the direct benefit of the Agent Lessor and the Lessors, to lease from the Agent
Lessor for the Lease Term the interest of the Agent Lessor in the Property,
including the Ground Lease.
Section 2.2. Acceptance Procedure. The Lessee hereby agrees that the
execution and delivery by it of this Master Lease shall, without further act,
constitute the irrevocable acceptance by the Lessee of all of the Property and
rights under the Ground Lease for all purposes of this Master Lease and the
other Operative Documents on the terms set forth therein and herein, and that
the Property including the Ground Lease shall be deemed to be included in the
leasehold estate of this Master Lease and shall be subject to the terms and
conditions of this Master Lease.
Section 2.3. Lease Term. The term of this Master Lease shall be for the
Lease Term.
Section 2.4. Intentionally omitted.
Section 2.5. Each Lessor to Have an Undivided Interest. Each party to
this Master Lease hereby acknowledges that Section 15.16 of the Participation
Agreement applies in full force and effect to this Master Lease and each other
Operative Document.
ARTICLE III
PAYMENT OF RENT
Section 3.1. Rent. (a) During the Lease Term, the Lessee shall pay
Basic Rent to the Agent Lessor on each Scheduled Payment Date, on the date
required under Section 20.2(f) in connection with the Lessee's exercise of the
Remarketing Option and, on any date on which this Master Lease shall terminate;
provided however that Fixed Rent shall be paid on each Fixed Rent Payment Date.
(b) Neither the Lessee's inability or failure to take possession of all
or any portion of the Property when delivered by the Agent Lessor, nor the
inability or failure of the Agent
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Lessor to deliver all or any portion of the Property to the Lessee on or before
the Acquisition Date, whether or not attributable to any act or omission of the
Lessee, but excluding any act or omission of the Agent Lessor or any Lessor,
shall delay or otherwise affect the Lessee's obligation to pay Rent for the
Property in accordance with the terms of this Master Lease.
Section 3.2. Payment of Rent. Rent shall be paid absolutely net to the
Agent Lessor so that this Master Lease shall yield to the Agent Lessor for the
benefit of the Lessors the full amount thereof, without setoff, deduction or
reduction.
Section 3.3. Supplemental Rent. The Lessee shall pay to the Agent
Lessor any and all Supplemental Rent promptly as the same shall become due and
payable, and if the Lessee fails to pay any Supplemental Rent and such failure
shall continue beyond the cure period provided in Section 16.1(b), the Agent
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. The Lessee shall
pay to the Agent Lessor, as Supplemental Rent, among other things, on demand, to
the extent permitted by applicable Requirements of Law, interest at the
applicable Overdue Rate on any installment of Basic Rent not paid when due for
the period for which the same shall be overdue and on any payment of
Supplemental Rent not paid when due or demanded by the Agent Lessor for the
period from the due date or the date of any such demand, as the case may be,
until the same shall be paid. The expiration or other termination of the
Lessee's obligations to pay Basic Rent hereunder shall not limit or modify the
obligations of the Lessee with respect to Supplemental Rent, except as otherwise
specifically provided herein or in any instrument effecting such termination.
Unless expressly provided otherwise in this Master Lease, in the event of any
failure on the part of the Lessee to pay and discharge any Supplemental Rent as
and when due, the Lessee shall also promptly pay and discharge any fine,
penalty, interest or cost which may be assessed or added against any Participant
by a third party as a direct result of such nonpayment or late payment of such
Supplemental Rent, all of which shall also constitute Supplemental Rent.
Section 3.4. Method of Payment. Each payment of Rent payable by the
Lessee to the Agent Lessor under this Master Lease or any other Operative
Document shall be made by the Lessee to the Administrative Agent as assignee of
the Agent Lessor under the Assignment of Lease and Rent (or, upon reasonable
prior written notice from the Administrative Agent that the Loans and all other
amounts owing to the Lenders under the Loan Agreement and the other Operative
Documents have been paid in full and all Commitments of the Lenders have been
permanently terminated, to the Agent Lessor) prior to 1:00 p.m., (Chicago time)
to the Account in immediately available funds consisting of lawful currency of
the United States of America on the date when such payment shall be due, unless
such scheduled date shall not be a Business Day, in which case such payment
shall be made on the next succeeding Business Day. Payments received after 1:00
p.m., (Chicago time) on the date due shall for the purpose of Section 16.1
hereof be deemed received on such day; provided, however, that for the purposes
of the second sentence of Section 3.3, such payments shall be deemed received on
the next succeeding Business Day and shall accrue interest at the Overdue Rate
as provided in such Section 3.3.
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ARTICLE IV
QUIET ENJOYMENT; RIGHT TO INSPECT
Section 4.1. Quiet Enjoyment. Subject to the terms of each of the
Operative Documents, the Lessee shall peaceably and quietly have, hold and enjoy
the Property for the Lease Term, free of any claim or other action by the Agent
Lessor or the Lessors or anyone claiming by, through or under the Agent Lessor
or the Lessors (other than the Lessee). Such right of quiet enjoyment is
independent of, and shall not affect the rights of the Agent Lessor or the
Lessors (or anyone claiming by, through or under the Agent Lessor or the
Lessors) otherwise to initiate legal action to enforce, the obligations of the
Lessee under this Master Lease.
Section 4.2. Right to Inspect. During the Lease Term, the Lessee shall
upon reasonable notice (except that no notice shall be required if a Lease Event
of Default has occurred and is continuing), and from time to time, permit the
Agent Lessor, any Lessor, the Administrative Agent, any Lender, and their
respective authorized representatives to inspect the Property, subject to the
Lessee's normal safety procedures, during normal business hours; provided that
such inspections shall be coordinated by the Administrative Agent and shall not
unreasonably interfere with the Lessee's business operations at the Property.
ARTICLE V
NET LEASE
Section 5.1. Net Lease. This Master Lease shall constitute a net lease.
Any provision of this Master Lease or any other Operative Document to the
contrary notwithstanding, this Master Lease shall not terminate, nor shall the
Lessee be entitled to any abatement, suspension, deferment, reduction, setoff,
counterclaim, or defense with respect to the Rent, nor shall the obligations of
the Lessee hereunder be affected (except by the gross negligence or willful
misconduct of the Administrative Agent or Agent Lessor or as expressly herein
permitted and by performance of the obligations in connection therewith) by
reason of: (i) any defect in the condition, merchantability, design,
construction, quality or fitness for use of the Property or any part thereof, or
the failure of the Property to comply with all Requirements of Law, including
any inability to occupy or use the Property by reason of such non-compliance;
(ii) any damage to, removal, abandonment, salvage, loss, contamination of or
Release from, scrapping or destruction of or any requisition or taking of the
Property or any part thereof; (iii) any restriction, prevention or curtailment
of or interference with construction on or any use of the Property or any part
thereof including eviction; (iv) any defect in title of or rights to the
Property or Ground Lease or any Lien on such title or rights or on the Property
or Ground Lease; (v) any change, waiver, extension or indulgence in respect of
any obligation or liability of or by the Administrative Agent, the Agent Lessor
or any Participant; (vi) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceedings
relating to the
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Lessee, the Guarantor, the Administrative Agent, the Agent Lessor, any
Participant or any other Person, or any action taken with respect to this Master
Lease by any trustee or receiver of the Lessee, the Guarantor, the
Administrative Agent, the Agent Lessor, any Participant or any other Person, or
by any court in any such proceeding; (vii) any claim that the Lessee has or
might have against any Person, including without limitation the Administrative
Agent, the Agent Lessor, any Participant, or any vendor, manufacturer,
contractor of or for the Property; (viii) any failure on the part of the Agent
Lessor or any other Lessor to perform or comply with any of the terms of this
Master Lease, of any other Operative Document or of any other agreement;
provided that Lessee does not waive any Claim against Agent Lessor or any Lessor
or any bankruptcy recoupment right of Lessee; (ix) any invalidity or
unenforceability or disaffirmance of this Master Lease against or by the Lessee
or any provision hereof or any of the other Operative Documents or any provision
of any thereof; (x) the impossibility of performance by the Lessee, the Lessors
or all of them; (xi) any action by any court, administrative agency or other
Governmental Authority; or (xii) any other cause or circumstances whether
similar or dissimilar to the foregoing and whether or not the Lessee shall have
notice or knowledge of any of the foregoing. The Lessee's agreement in the
preceding sentence shall not affect any claim, action or right the Lessee may
have against the Lessors or any other Participants. The parties intend that the
obligations of the Lessee hereunder shall be covenants and agreements that are
separate and independent from any obligations of the Agent Lessor or the Lessors
hereunder or under any other Operative Documents, and the obligations of the
Lessee shall continue unaffected unless the obligations shall have been modified
or terminated in accordance with an express provision of this Master Lease.
Section 5.2. No Termination or Abatement. The Lessee shall, to the
extent permitted by Applicable Law, remain obligated under this Master Lease in
accordance with its terms and shall not take any action to terminate, rescind or
avoid this Master Lease (except as provided herein), notwithstanding any action
for bankruptcy, insolvency, reorganization, liquidation, dissolution, or other
proceeding affecting any Participant, or any action with respect to this Master
Lease which may be taken by any trustee, receiver or liquidator of any
Participant or by any court with respect to any Participant. The Lessee hereby
waives, to the extent permitted by Applicable Law, all right (i) to terminate or
surrender this Master Lease (except as provided herein) or (ii) to avail itself
of any abatement, suspension, deferment, reduction, setoff, counterclaim or
defense with respect to any Rent. The Lessee shall remain obligated under this
Master Lease in accordance with its terms and the Lessee hereby waives, to the
extent permitted by Applicable Law, any and all rights now or hereafter
conferred by statute or otherwise to modify or to avoid strict compliance with
its obligations under this Master Lease. Notwithstanding any such statute or
otherwise, the Lessee shall, to the extent permitted by Applicable Law, be bound
by all of the terms and conditions contained in this Master Lease.
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ARTICLE VI
SUBLEASES
The Lessee may sublease the Property or any portion thereof to any
Person; provided, however, that: (a) no sublease or other relinquishment of
possession of the Property shall in any way discharge or diminish any of the
Lessee's obligations to the Agent Lessor or the Lessors hereunder and the Lessee
shall remain directly and primarily liable under this Master Lease as to the
portion of the Property so sublet; (b) each sublease of the Property shall
expressly be made subject to and subordinated to this Master Lease and to the
rights of the Agent Lessor and the Lessors hereunder; (c) each sublease shall
expressly provide for the surrender of the Property or portion thereof by the
applicable sublessee at the election of the Administrative Agent or the Agent
Lessor (as applicable) after the occurrence of a Lease Event of Default; and (d)
each sublease shall expressly provide for termination on or prior to the
Expiration Date or the Extended Expiration Date (if applicable) unless the
Lessee elects to purchase the Property pursuant to Section 18.1.
ARTICLE VII
LESSEE ACKNOWLEDGMENTS
Section 7.1. Condition of the Property. THE LESSEE ACKNOWLEDGES AND
AGREES THAT ALTHOUGH THE AGENT LESSOR WILL OWN AND HOLD TITLE TO THE PROPERTY,
THE LESSEE IS SOLELY RESPONSIBLE FOR THE PROPERTY AND ANY ALTERATIONS OR
MODIFICATIONS THERETO. THE LESSEE FURTHER ACKNOWLEDGES AND AGREES THAT IT IS
LEASING THE PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) BY THE ADMINISTRATIVE AGENT, THE AGENT LESSOR, ANY LESSOR
OR ANY LENDER AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF TITLE
(EXCLUDING LESSOR LIENS), (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF,
(C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT
SHOW AND (D) VIOLATIONS OF REQUIREMENTS OF LAW WHICH MAY EXIST ON THE
ACQUISITION DATE. NEITHER THE ADMINISTRATIVE AGENT, NOR THE AGENT LESSOR, NOR
ANY LESSOR NOR ANY LENDER 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 (OTHER THAN FOR LESSOR LIENS
ATTRIBUTABLE TO SUCH LESSOR OR SUCH LENDER), VALUE, SUITABILITY, USE, CONDITION,
DESIGN, OPERATION, OR FITNESS FOR USE OF THE PROPERTY (OR ANY PART THEREOF
EXCEPT WITH RESPECT TO ITS OR THEIR AUTHORITY TO ENTER INTO AND PERFORM THIS
LEASE), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PART THEREOF) AND NEITHER THE
ADMINISTRATIVE AGENT, NOR THE AGENT LESSOR, NOR ANY LESSOR NOR ANY LENDER SHALL
BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN (OTHER THAN FOR
LESSOR LIENS ATTRIBUTABLE TO SUCH LESSOR OR SUCH LENDER) OR THE FAILURE OF THE
PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY REQUIREMENT OF LAW.
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Section 7.2. Risk of Loss. During the Lease Term the risk of loss of 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 the Lessee, and neither Agent Lessor nor any
Lessor shall in any event be answerable or accountable therefor.
ARTICLE VIII
POSSESSION AND USE OF THE PROPERTY
Section 8.1. Utility Charges. The Lessee shall pay or cause to be paid
all charges for electricity, power, gas, oil, water, telephone, sanitary sewer
service and all other rents and utilities used in or on the Property during the
Lease Term. The Lessee shall be entitled to receive any credit or refund with
respect to any utility charge paid by the Lessee and the amount of any credit or
refund received by the Agent Lessor or the Lessors on account of any utility
charges paid by the Lessee, net of the costs and expenses reasonably incurred by
the Agent Lessor or the Lessors in obtaining such credit or refund, shall be
promptly paid over to the Lessee.
Section 8.2. Use of the Property. The Lessee covenants that the
Property will be used as a rolling mill facility. The 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 Master Lease. Lessee shall not commit or permit
any waste of the Property or any part thereof.
Section 8.3. Compliance with Requirements of Laws and Insurance
Requirements. Subject to the terms of Article XII relating to permitted
contests, the Lessee, at its sole cost and expense, shall (a) comply in all
material respects with all Requirements of Law (including all Environmental
Laws) and Insurance Requirements relating to the Property, including the use,
construction, operation, maintenance, repair and restoration thereof and the
remarketing thereof pursuant to Article XX, 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 licenses, permits, orders, approvals, consents and other authorizations
required for the construction, use, maintenance repair, restoration and
operation of the Property (except where the failure to comply pursuant to clause
(a) or to procure or maintain such licenses or other authorizations pursuant to
clause (b) would not have a Material Adverse Effect).
Section 8.4. Assignment by Lessee. The Lessee may not assign this
Master Lease or any of its rights or obligations hereunder in whole or in part
to any Person, except that the Lessee may sublease the Property or portion
thereof as permitted under Article VI and the Lessee may assign this Master
Lease to any other Restricted Subsidiary in connection with the assignment or
transfer of all or substantially all of the assets owned by Lessee located at
the Mill Facility to such Restricted Subsidiary.
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ARTICLE IX
MAINTENANCE AND REPAIR; RETURN
The Lessee, at its sole cost and expense, shall maintain the Property
in good condition (ordinary wear and tear excepted) and make all necessary
repairs thereto, of every kind and nature whatsoever, whether interior or
exterior, ordinary or extraordinary, structural or nonstructural or foreseen or
unforeseen, in each case as required by all Requirements of Law and Insurance
Requirements (except where the failure to comply would not have a Material
Adverse Effect) or as otherwise reasonably determined by the Lessee to be
necessary for the use and operation of the Property.
Neither the Agent Lessor nor any Lessor shall under any circumstances
be required to build any improvements 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 Master Lease
(other than for the initial Advance made in accordance with and pursuant to the
terms of the Participation Agreement) or maintain the Property in any way. The
Lessee waives any right to (i) require the Agent Lessor or any Lessor to
maintain, repair, or rebuild all or any part of the Property or (ii) make
repairs at the expense of the Agent Lessor or any Lessor pursuant to any
Requirement of Law, Insurance Requirement, contract, agreement, or covenant,
condition or restriction in effect at any time during the Lease Term.
The Lessee shall, upon the expiration or earlier termination of this
Master Lease (other than as a result of the Lessee's purchase of the Property
from the Lessors as provided herein), vacate and surrender the Property to the
Agent Lessor in its then current "AS IS" condition, subject to the Lessee's
obligations under Articles VIII, IX, X, XI, XIII, XIV and XX.
ARTICLE X
MODIFICATIONS
During the Lease Term, the Lessee, at its sole cost and expense, may at
any time and from time to time make alterations, renovations, improvements and
additions to the Property or any part thereof and substitutions and replacements
therefor (collectively, "Modifications"); provided, however, that:
(a) except for any Modification required to be made pursuant
to a Requirement of Law (a "Required Modification"), no Modification
shall be made if it would materially adversely affect the value or
useful life of the Property or any part thereof from that which existed
immediately prior to such Modification (assuming the Property was then
in the condition required by this Master Lease);
(b) the Modification shall be done in a good and workmanlike
manner;
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(c) the Modification shall comply in all material respects
with all Requirements of Law (including all Environmental Laws) and
Insurance Requirements applicable to the Modification, including the
obtaining of all permits and certificates of occupancy;
(d) subject to the terms of Article XII relating to permitted
contests, the Lessee shall pay all costs and expenses and shall
discharge (or cause to be insured or bonded over) within sixty (60)
days after the same shall be filed (or otherwise become effective) any
Liens arising with respect to the Modification; and
(e) such Modifications shall comply with Article IX.
All Modifications shall be subject to this Master Lease and title
thereto shall immediately vest in the Agent Lessor; provided however, that
Modifications that (x) are not Required Modifications, (y) were not financed by
the Participants and (z) are removable without impairing the value or utility of
the Property, shall be the property of the Lessee and shall not be subject to
this Master Lease. So long as no Lease Event of Default has occurred and is
continuing, the Lessee may place upon the Property any trade fixtures,
machinery, equipment, inventory or other property belonging to the Lessee or
third parties and may remove the same at any time during the Lease Term,
subject, however, to the terms of Article IX; provided, however, that the Lessee
shall keep and maintain at the Property and shall not remove any Property
financed or otherwise paid for by any Participant pursuant to the Participation
Agreement except in connection with the repair or replacement of the Property
and the removal and replacement of any Property reasonably determined by Lessee
to be obsolete.
ARTICLE XI
NO LIENS; EASEMENTS
Section 11.1. No Liens. (a) The Lessee agrees that except as otherwise
provided herein and subject to the terms of Article XII relating to permitted
contests, the Lessee shall not directly or indirectly create or allow to remain,
and shall promptly (and in any event within sixty (60) days after notice thereof
is received by the Lessee from any Person) discharge at its sole cost and
expense, any Lien (other than any Lessor Lien), defect, attachment, levy, title
retention agreement or claim upon the Property or any Lien, attachment, levy or
claim with respect to the Rent or with respect to any amounts held by the
Administrative Agent, the Agent Lessor or any Participant pursuant to the Loan
Agreement or the other Operative Documents, other than (i) Permitted Property
Liens, and (ii) Liens on machinery, equipment, general intangibles and other
personal property not financed by the proceeds of the Loans or Lessor Amounts
and not otherwise prohibited under any other Operative Document. The Company
will not grant or permit to exist any Liens on any asset now or hereafter used
in the operation of the Mill Facility if the loss or removal of the assets
subject to such Liens would impair in any material respect the current value of
the Property, taken as a whole, or its present utility and operating efficiency,
taken as a whole.
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(b) Nothing contained in this Master Lease shall be construed as
constituting the consent or request of the Agent Lessor, any Lessor, the
Administrative Agent or any other Participant, 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 the Property
or any part thereof. NOTICE IS HEREBY GIVEN THAT NEITHER THE ADMINISTRATIVE
AGENT NOR THE AGENT LESSOR NOR ANY LESSOR NOR ANY LENDER IS OR SHALL BE LIABLE
FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE,
OR TO ANYONE HOLDING THE PROPERTY OR ANY PART THEREOF THROUGH OR UNDER THE
LESSEE, AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF THE ADMINISTRATIVE AGENT,
THE AGENT LESSOR, ANY LESSOR OR ANY LENDER IN AND TO THE PROPERTY.
Section 11.2. Grants and Releases of Easements; Agent Lessor and
Lessors' Waivers. Provided that no Lease Event of Default shall have occurred
and be continuing and subject to the provisions of Articles VII, IX and X and
Section 8.3, the Agent Lessor and each Lessor hereby consent in each instance to
the following actions by the Lessee, in the name and stead of the Agent Lessor
and the Lessors, but at the Lessee's sole cost and expense: (a) the granting of
easements, licenses, rights-of-way and other rights and privileges in the nature
of easements reasonably necessary or desirable for the use, repair, or
maintenance of the Property as herein provided; (b) the release of existing
easements or other rights in the nature of easements which are for the benefit
of the Property; (c) if required by applicable Governmental Authority in
connection with the construction, the dedication or transfer of unimproved
portions of the Property for road, highway or other public purposes; (d) the
execution of amendments to any covenants and restrictions affecting the
Property; and (e) the execution or release of any similar agreements; provided,
however, that in each case (i) such grant, release, dedication, transfer or
amendment does not materially impair the value or remaining useful life of the
Property, (ii) such grant, release, dedication, transfer or amendment is, in the
Lessee's judgment, reasonably necessary in connection with the use, maintenance,
alteration or improvement of the Property, (iii) such grant, release,
dedication, transfer or amendment will not cause the Property or any portion
thereof to fail to comply with the provisions of this Master Lease or any other
Operative Document or in any material respect with any Requirements of Law
(including, without limitation, all applicable zoning, planning, building and
subdivision ordinances, all applicable restrictive covenants and all applicable
architectural approval requirements), (iv) all governmental consents or
approvals required prior to such grant, release, dedication, transfer,
annexation or amendment have been obtained, and all filings required prior to
such action have been made, (v) the Lessee shall remain obligated under this
Master Lease, and under any instrument executed by the Lessee consenting to the
assignment of the Agent Lessor's and the Lessors' interests in this Master Lease
as security for indebtedness, in each such case in accordance with their terms,
as though such grant, release, dedication, transfer or amendment had not been
effected, and (vi) the Lessee shall pay and perform any obligations of the Agent
Lessor and the Lessors under such grant, release, dedication, transfer or
amendment. Without limiting the effectiveness of the foregoing, provided that no
Lease Event of Default shall have occurred and be continuing, the Agent Lessor
shall, upon the
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request of the Lessee, and at the Lessee's sole cost and expense, execute and
deliver any instruments necessary or appropriate to confirm any such grant,
release, dedication, transfer, annexation or amendment to any Person permitted
under this Section 11.2, including landlord waivers with respect to any of the
foregoing.
ARTICLE XII
PERMITTED CONTESTS
If, to the extent and for so long as (a) a test, challenge, appeal or
proceeding for review of any Applicable Law relating to the Property or for
removal of a Lien shall be prosecuted diligently and in good faith in
appropriate proceedings by the Lessee, and, with respect to Liens, Lessee shall
have posted reasonable collateral therefor if requested by Agent Lessor, or (b)
compliance with such Applicable Law shall have been excused or exempted by a
valid nonconforming use, variance permit, waiver, extension or forbearance, the
Lessee shall not be required to comply with such Applicable Law or remove such
Lien, but only if and so long as any such test, challenge, appeal, proceeding,
waiver, extension, forbearance or noncompliance shall not, in the reasonable
opinion of the Agent Lessor and the Administrative Agent, involve (A) any risk
of criminal liability being imposed on any Lessor or any Lender or (B) any risk
of (1) foreclosure, forfeiture or loss of the Property, or any material part
thereof, or (2) the nonpayment of Rent or (C) any substantial risk of (1) the
sale of, or the creation of, any Lien (other than a Permitted Property Lien or
contested Lien) on any part of the Property, (2) civil liability being imposed
on any Lender, any Lessor, or the Property, or (3) enjoinment of, or
interference with, the use, possession or disposition of the Property in any
material respect.
Neither the Agent Lessor nor any Lessor will be required to join in any
proceedings pursuant to this Section 12.1 unless a provision of any Applicable
Law requires or, in the good faith opinion of the Lessee, it is advisable for
the prosecution of such contest, that such proceedings be brought by or in the
name of such party; and in that event such party will join in the proceedings or
permit them or any part thereof to be brought in its name if and so long as (i)
the Lessee has not elected the Remarketing Option, and (ii) the Lessee pays all
related expenses and indemnifies such party with respect to such proceedings.
ARTICLE XIII
INSURANCE
Section 13.1. Public Liability and Workers' Compensation Insurance. (a)
During the Lease Term, the Lessee shall procure and carry, at the Lessee's sole
cost and expense, commercial general liability insurance for claims for injuries
or death sustained by persons or damage to property while on the Property and
such other public liability coverages as are ordinarily procured by the Lessee
or its Affiliates who own or operate similar properties, in all cases consistent
with the requirements established under Section 10.1(b) of the Participation
Agreement. The policy shall be endorsed to name the Agent Lessor, the
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Administrative Agent and the Participants as additional insureds. The policy
shall also specifically provide that the policy shall be considered primary
insurance which shall apply to any loss or claim before any contribution by any
insurance which the Agent Lessor, the Administrative Agent and the Participants
may have in force.
(b) The Lessee shall, in connection with the operation of the Property,
comply with applicable workers' compensation laws.
Section 13.2. Hazard and Other Insurance. During the Lease Term, the
Lessee shall keep, or cause to be kept, the Property insured against loss or
damage by fire, earthquake, windstorm, flood and other risks on terms and in
amounts reasonably determined to be necessary in Lessee's prudent business
judgment, giving due regard to the requirements established under Section
l0.l(b) of the Participation Agreement. During the construction of any Material
Modifications, the Lessee shall also maintain or cause to be maintained
builders' risk insurance to the extent, and on terms and in amounts reasonably
determined by the Lessee to be necessary giving due regard to the requirements
established under Section l0.l(b) of the Participation Agreement. All insurance
proceeds in respect of any loss or occurrence for which the proceeds related
thereto are (i) less than or equal $5,000,000 in the absence of the occurrence
and continuance of an Event of Default, shall be adjusted by and paid (subject
to the terms of Section 14.1 hereof) to the Lessee for application toward the
reconstruction, repair or refurbishment of the Property, and (ii) greater than
$5,000,000 shall be adjusted jointly by the Lessee and the Agent Lessor (unless
an Event of Default has occurred and is continuing, in which case such proceeds
shall be adjusted solely by the Agent Lessor) and held by the Agent Lessor for
application in accordance with Article XIV.
Section 13.3. Insurance Coverage. (a) The Lessee shall furnish the
Agent Lessor and the Administrative Agent with certificates showing the
insurance required under Sections 13.1 and 13.2 to be in effect and naming the
Agent Lessor, the Administrative Agent and the Participants as additional
insureds with respect to liability coverage (excluding worker's compensation
insurance), naming the Agent Lessor, the Administrative Agent and the Lenders,
the Lessors and the Lessee as their interests may appear with respect to
casualty coverage and naming the Agent Lessor on behalf of the Lessors and the
Administrative Agent on behalf of the Lenders as their interests may appear,
each as loss payee with respect to casualty coverage and showing the mortgagee
endorsement required by Section 13.3(c) with respect to such coverage. All such
insurance shall be at the cost and expense of the Lessee. Such certificates
shall include a provision for no less than thirty (30) days' advance written
notice by the insurer to the Agent Lessor and the Administrative Agent in the
event of cancellation of such insurance. In addition, the Lessee shall cause the
Agent Lessor, the Administrative Agent and the Participants to be named as
additional insureds under each liability policy maintained in connection with
construction of any Improvements or Modifications.
(b) The Lessee agrees that the insurance policy or policies required by
Section 13.1 shall include an appropriate clause providing that it will not be
invalidated should the Lessee waive, in writing, prior to a loss, any or all
rights of recovery against any party for losses
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covered by such policy, and that the insurance in favor of the Agent Lessor, the
Administrative Agent, the Lessors and the Lenders and their respective rights
under and interests in such policies shall not be invalidated or reduced by any
act or omission (including breach of warranty) or negligence of the Lessee or
any other Person having any interest in the Property other than the Lessors and
the Lenders. The Lessee hereby waives any and all such rights against the
Lessors and the Lenders to the extent of payments made under such policies.
(c) All insurance policies required by Section 13.2 shall include a
standard mortgagee endorsement in favor of the Agent Lessor, the Administrative
Agent and the Participants.
(d) Neither the Agent Lessor nor any of the Lessors shall carry
separate insurance concurrent in kind or form or contributing in the event of
loss with any insurance required under this Article XIII except that Agent
Lessor and any Lessor may, at such party's expense, carry separate liability
insurance so long as (i) the Lessee's insurance is designated as primary and in
no event excess or contributory to any insurance such party may have in force
which would apply to a loss covered under the Lessee's policy and (ii) each such
insurance policy will not cause the Lessee's insurance required under this
Article XIII to be subject to a coinsurance exception of any kind.
(e) The Lessee shall pay as they become due all premiums for the
insurance required by Section 13.1 and Section 13.2, and shall renew or replace
each policy prior to the expiration date thereof. Throughout the Lease Term, at
the time each of the Lessee's insurance policies is renewed (but in no event
less frequently than once each year), the Lessee shall deliver to the Agent
Lessor and the Administrative Agent certificates of insurance evidencing that
all insurance required by this Article XIII is being maintained by the Lessee
and is in effect.
ARTICLE XIV
CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS
Section 14.1. Casualty and Condemnation. (a) Subject to the provisions
of this Article XIV, if all or a portion of the Property is damaged or destroyed
in whole or in part by a Casualty or if the use, access, occupancy, easement
rights or title to the Property or any part thereof, is the subject of a
Condemnation, then
(i) in the case of a Casualty that is not a Significant
Casualty, any insurance proceeds payable with respect to such Casualty
shall be paid directly to the Lessee, or if received by the Agent
Lessor or any other Lessor, shall be paid over to the Lessee for the
reconstruction, refurbishment and repair of the Property, and if such
Casualty is a Significant Casualty, any insurance proceeds payable with
respect to such Casualty (except to the extent such insurance proceeds
relate to interruption of or damage to the Lessee's business operations
or loss of or damage to assets of the Lessee or others
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which is not Property) shall be paid to the Administrative Agent to be
applied in the discretion of the Lessee (unless there has occurred and
is continuing an Event of Default, in which case such insurance
proceeds shall be applied in the discretion of the Agent Lessor and the
Administrative Agent) to the restoration of the Property or toward the
payment of the Lease Balance, unless the Lessee has elected to remedy
the loss or damage resulting from the Significant Casualty in
accordance with Section 15.1 and has satisfied all requirements
thereof, in which case, all insurance proceeds shall be paid directly
to the Lessee and
(ii) in the case of a Condemnation (that is not a Significant
Condemnation) of any part of the Property, any award or compensation
relating thereto shall be paid to the Lessee and in the case of a
Significant Condemnation such award or compensation shall be paid to
the Administrative Agent to be applied in the Lessee's discretion
(unless there has occurred and is continuing an Event of Default, in
which case such award or condemnation proceeds shall be applied in the
discretion of the Agent Lessor and the Administrative Agent) to the
restoration of the Property or toward the payment of the Lease Balance
unless the Lessee has elected to remedy the loss or damage resulting
from the Significant Condemnation in accordance with Section 15.1, and
has satisfied all requirements thereto, in which case, all awards and
compensation shall be paid directly to the Lessee;
provided, however, that, in each case, if a Lease Event of Default shall have
occurred and be continuing, such award, compensation or insurance proceeds
relating to the Property (excluding any award, compensation or insurance
proceeds relating to interruption of or damage to the Lessee's business
operations or loss of or damage to assets of the Lessee or others which is not
Property) shall be paid directly to the Administrative Agent or, if received by
the Lessee, shall be held in trust for the Lessors and the Lenders, and shall be
paid by the Lessee to the Account to be distributed in accordance with the
provisions of Article VII of the Participation Agreement. All amounts held by
the Administrative Agent, the Agent Lessor or any Participant when a Lease Event
of Default exists hereunder on account of any award, compensation or insurance
proceeds either paid directly to the Lessors or the Lenders or turned over to
the Lessors or the Lenders shall at the option of the Administrative Agent
either be (i) paid to the Lessee for the repair of damage caused by such
Casualty or Condemnation in accordance with clause (d) of this Section 14.1, or
(ii) applied to the purchase price of the Property on the Termination Date in
accordance with Article XV.
(b) The Lessee may appear in any proceeding or action to negotiate,
prosecute, adjust, settle 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 the Lessee's reasonable request, and at the Lessee's
sole cost and expense, the Agent Lessor shall participate in any such
proceeding, action, negotiation, prosecution or adjustment. The Agent Lessor,
the Administrative Agent, the Participants and the Lessee agree that this Master
Lease shall control the rights of the parties in and to any such award,
compensation or insurance payment.
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(c) If a Casualty shall occur or any party shall receive notice of an
actual, pending or threatened Condemnation involving a Material impairment of
the value of the Property or any interest therein, Lessee or such party, as the
case may be, shall give notice thereof to the Agent Lessor, the Lessee and the
Administrative Agent promptly after the occurrence of such Casualty or receipt
of such notice.
(d) If pursuant to this Section 14.1 and Section 15.1 hereof this
Master Lease shall continue in full force and effect following a Casualty or
Condemnation with respect to the Property, the Lessee shall, at its sole cost
and expense (and, without limitation, if any award, compensation or insurance
payment is not sufficient to restore the Property in accordance with this clause
(d), the Lessee shall pay the shortfall except for any amount caused by the
gross negligence or willful misconduct of Administrative Agent or Agent Lessor),
promptly and diligently repair any damage to the Property caused by such
Casualty or Condemnation in conformity with the requirements of Articles IX and
X using the as-built Plans and Specifications for the Property (as modified to
give effect to any subsequent Modifications, any Condemnation affecting the
Property and all applicable Requirements of Law and as modified as reasonably
requested by the Lessee and reasonably consented to by the Agent Lessor, so long
as such modifications do not materially impair the utility, operation, function
or value so as to restore the Property to at least the same condition,
operation, function and value as existed immediately prior to such Casualty or
Condemnation (assuming the Property was then in the condition required by this
Lease) with such Modification as the Lessee may elect in accordance with Section
10.1. In such event, title to the Property shall remain with the Agent Lessor
subject to the terms of this Master Lease. Upon completion of such restoration,
the Lessee shall furnish to the Agent Lessor and the Administrative Agent an
architect's certificate of substantial completion and a Responsible Officer's
Certificate confirming that such restoration has been completed pursuant to this
Master Lease.
(e) In no event shall a Casualty or Condemnation affect the Lessee's
obligations to pay Rent pursuant to Section 3.1 or to perform its obligations
and pay any amounts due on the Expiration Date or pursuant to Articles XVIII and
XXI.
Section 14.2. Environmental Matters. Promptly upon the Lessee's
obtaining knowledge of the existence of an Environmental Violation which might
reasonably Materially impair the value of the Property, the Lessee shall notify
the Agent Lessor and the Administrative Agent in writing of such Environmental
Violation. If the Environmental Violation would permit the Agent Lessor to
terminate this Master Lease under Section 15.1 and the Agent Lessor elects not
to terminate this Master Lease pursuant to Section 15.1, at Lessee's sole cost
and expense, the Lessee shall, subject to the provisions of Article XII relating
to permitted contests and Article XV and except for any matter caused by
Administrative Agent's or Agent Lessor's gross negligence or wilfull misconduct,
promptly and diligently commence any response, clean up, remedial or other
action necessary to remove, clean up or remediate the Environmental Violation in
accordance with the terms of Section 8.3. The Lessee shall, upon completion of
remedial action by the Lessee, cause to be prepared by an environmental
consultant reasonably acceptable to the Lessors a report describing the
Environmental Violation and the actions taken by the Lessee (or its agents) in
response to such Environmental Violation, and a statement by the consultant that
the
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Environmental Violation has been remedied in compliance in all material respects
with applicable Environmental Laws. Each such Environmental Violation shall be
remedied prior to the Expiration Date unless the Property has been purchased by
the Lessee in accordance with Sections 15.1, 18.1 or 18.2. Nothing in this
Article XIV shall reduce or limit the Lessee's obligations under Sections 13.1,
13.2 or 13.3 of the Participation Agreement.
ARTICLE XV
TERMINATION OF LEASE
Section 15.1. Termination upon Certain Events. If any of the following
occurs with respect to the Property:
(i) a Significant Condemnation occurs; or
(ii) a Significant Casualty occurs; or
(iii) an Environmental Violation occurs or is discovered which
will cost in excess of $5,000,000 to remedy;
and the Agent Lessor shall have given written notice (a "Termination Notice") to
the Lessee that, as a consequence of such event, this Master Lease is to be
terminated, then the Lessee may elect to either (a) remedy the loss or damage
resulting from the Significant Condemnation, Significant Casualty or such
Environmental Violation and restore the value of the Property and deliver to
Agent Lessor cash collateral or a letter of credit reasonably acceptable to
Agent Lessor from a bank reasonably acceptable to Agent Lessor in the amount
reasonably estimated by Agent Lessor to be necessary to remedy the loss or
damage resulting from the Significant Casualty, Significant Condemnation or such
Environmental Violation and restore the value of the Property or (b) purchase
the interest of the Agent Lessor in the Property on or prior to the later of ten
(10) Business Days after delivery of such notice or the next occurring Scheduled
Payment Date by paying to the Administrative Agent an amount equal to the Lease
Balance.
Section 15.2. Termination Procedures. On the date of the payment by the
Lessee of the Lease Balance in accordance with Section 15.1 (such date, the
"Termination Date"), this Master Lease shall terminate and, concurrent with the
Administrative Agent's receipt of such payment,
(a) the Agent Lessor shall execute and deliver to the Lessee
(or to the Lessee's designee) at the Lessee's cost and expense: (x) a
special warranty deed (warranting as to Lessor Liens only) with respect
to the Property, and (y) an assignment of the entire interest of the
Agent Lessor and Lessors in the Property (which shall include an
assignment of all of the right, title and interest of the Agent Lessor
in and to any Net Proceeds with respect to the Property not previously
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received by the Agent Lessor), in each case in recordable form and
otherwise in conformity with local custom and free and clear of any
Lessor Liens attributable to the Lessors;
(b) the Property shall be conveyed to the Lessee (or to the
Lessee's designee) "AS IS" and in its then present physical condition;
and
(c) in the case of a termination pursuant to clause (i) or
(ii) of Section 15.1, the Agent Lessor shall convey to the Lessee any
Net Proceeds with respect to any Casualty or Condemnation relating to
the Property received by the Agent Lessor and not previously paid to
the Lessee or at the request of the Lessee, such amounts shall be
applied against sums due hereunder.
ARTICLE XVI
EVENTS OF DEFAULT
Section 16.1. Lease Events of Default. The occurrence of any one or
more of the following events (whether such event shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body) shall constitute a
"Lease Event of Default":
(a) the Lessee shall fail to make payment of any Basic Rent
upon the same becoming due and payable and such failure shall continue
unremedied for a period of five (5) Business Days after Lessee's
receipt of notice thereof from Administrative Agent or Agent Lessor; or
the Lessee shall fail to make payment upon the same becoming due and
payable of the Lease Balance, Purchase Option Price, Loan Balance or
Lessor Balance, including, without limitation, amounts due pursuant to
Sections 15.1, 15.2, 18.1, 18.2, 18.3 or 20.2 hereof; or
(b) the Lessee shall fail to make payment of any Supplemental
Rent (other than as specified in clause (a) above) due and payable
within five (5) Business Days after receipt of notice thereof from the
Administrative Agent or the Agent Lessor; or
(c) the Lessee shall fail to maintain in effect insurance as
required by Article XIII of this Master Lease; or
(d) the Lessee or the Guarantor shall fail to observe or
perform in any material respect any term, covenant or condition
applicable to it under Article XX of this Agreement; or
(e) the Lessee or the Guarantor shall fail to observe or
perform in any material respect any term, covenant or condition
applicable to it under any Operative Document to which it is party
(other than those described in Section 16.1(a), (b), (c)
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or (d) hereof) and, in each such case, such failure shall have
continued unremedied for thirty (30) days after written notice thereof
has been given to the Lessee or the Guarantor by the Administrative
Agent or Agent Lessor; or
(f) any representation or warranty made or deemed made by the
Lessee or the Guarantor in any Operative Document to which it is a
party or which is contained in any certificate, document or financial
or other statement furnished at any time under or in connection with
any Operative Document shall prove to have been incorrect, false or
misleading in any material respect on or as of the date made or deemed
made; or
(g) Default shall be made in the payment of the principal of
or interest on any Indebtedness of the Guarantor or any Restricted
Subsidiary (other than Indebtedness under the Operative Documents) in
either case aggregating more than $20,000,000, as and when the same
shall become due and payable by the lapse of time, by declaration, by
call for redemption, by acceleration or otherwise, and such default
shall continue beyond any period of grace or notice, if any, allowed
with respect thereto; or
(h) Any event specified in any note, agreement, indenture or
other document evidencing or relating to Indebtedness of the Guarantor
or any Restricted Subsidiary shall occur if the effect of such event is
to cause, or (with the giving of any notice) to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, $50,000,000 or more of such Indebtedness
to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated maturity
and any applicable period of grace or notice has lapsed with respect to
such default; provided that no such event shall constitute an Event of
Default hereunder if and so long as the Guarantor or the indebted
Restricted Subsidiary (as applicable) shall be contesting in good faith
whether such event has occurred and the Guarantor and its Restricted
Subsidiaries make no payments or concessions (whether in the form of
collateral, increased interest or fees, more rapid amortization, more
restrictive terms or otherwise) in consideration of a resolution of
such contest; or
(i) Final judgment or judgments for the payment of money
aggregating in excess of $10,000,000 is or are outstanding against the
Guarantor or any Restricted Subsidiary or against any Company Property
of either and any one of such judgments has remained unpaid, unvacated,
unbonded or unstayed by appeal or otherwise for a period of ninety (90)
days from the date of its entry; or
(j) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended or any successor regulation) of more than 50%
of the voting stock of the Guarantor; or during any period of thirteen
(13) consecutive calendar months (or, if shorter, the maximum period
which would incorporate only one regularly scheduled annual meeting of
the Guarantor), a majority of the Board of Directors of the Guarantor
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shall no longer be composed of individuals (i) who were members of said
Board on the first day of such period, (ii) whose election or
nomination to said Board was approved by individuals referred to in
clause (i) above constituting at the time of such election or
nomination at least a majority of said Board or (iii) whose election or
nomination to said Board was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of said Board; or
(k) A custodian, receiver, liquidator or trustee of the
Guarantor or any Restricted Subsidiary, or of any of the Company
Property of either, is appointed or takes possession and such
appointment or possession remains uncontested or in effect for more
than sixty (60) days; or the Guarantor or any Restricted Subsidiary
generally fails to pay its debts as they become due or admits in
writing its inability to pay its debts as they mature; or the Guarantor
or any Restricted Subsidiary is adjudicated bankrupt or insolvent; or
any of the material property of either is sequestered by court order
and the order remains in effect for more than sixty (60) days; or a
petition is filed against the Guarantor or any Restricted Subsidiary
under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or subsequently in effect, and is not stayed
or dismissed within sixty (60) days after filing; or
(l) The Guarantor or any Restricted Subsidiary makes an
assignment for the benefit of creditors or files a petition in
voluntary bankruptcy or seeking relief under any provision of any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction, whether now
or subsequently in effect; or consents to the filing of any petition
against it under any such law; or consents to the appointment of or
taking possession by a custodian, receiver, trustee or liquidator of
the Guarantor, any Restricted Subsidiary, or any of the property of
either.
Section 16.2. Remedies. Upon the occurrence of any Lease Event of
Default and at any time thereafter, the Agent Lessor may, so long as such Lease
Event of Default is continuing, do one or more of the following (and in such
order) as the Agent Lessor in its sole discretion shall determine, without
limiting any other right or remedy the Agent Lessor may have on account of such
Lease Event of Default (including, without limitation, the obligation of the
Lessee to purchase the Property as set forth in Section 18.3):
(a) The Agent Lessor may (i) declare the entire outstanding
Lease Balance to be due and payable together with accrued unpaid Rent
and any other amounts payable under the Operative Documents, and/or
(ii) make demand upon the Guarantor;
(b) The Agent Lessor may, by notice to the Lessee, rescind or
terminate this Master Lease as of the date specified in such notice;
provided, however, no reletting, reentry or taking of possession of the
Property (or any portion thereof) by the Agent Lessor will be construed
as an election on the Agent Lessor's part to terminate this Master
Lease unless a written notice of such intention is given to the Lessee;
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(c) The Agent Lessor may (i) demand that the Lessee, and the
Lessee shall upon the written demand of the Agent Lessor, return the
Property promptly to the Agent Lessor in the manner and condition
required by, and otherwise in accordance with all of the provisions of,
Articles VII and IX and Section 8.3 hereof as if the Property were
being returned at the end of the Lease Term, and neither the Agent
Lessor nor any Lessor shall be liable for the reimbursement of the
Lessee for any costs and expenses incurred by the Lessee in connection
therewith, and (ii) without prejudice to any other remedy which the
Lessors may have for possession of the Property, and to the extent and
in the manner permitted by Applicable Law, enter upon the Property and
take immediate possession (to the exclusion of the Lessee) of the
Property or any part thereof and expel or remove the Lessee and any
other Person who may be occupying the Property, by summary proceedings
or otherwise, all without liability to the Agent Lessor for or by
reason of such entry or taking of possession, whether for the
restoration of damage to property caused by such taking or otherwise
except to the extent any such damage is attributable to the gross
negligence or willful misconduct of the Agent Lessor or its agents and,
in addition to the other damages of the Lessors, the Lessee shall be
responsible for all costs and expenses incurred by the Agent Lessor,
the Administrative Agent, the Lessors and/or the Lenders in connection
with any reletting, including, without limitation, reasonable brokers'
fees and all costs of any alterations or repairs made by any such
party;
(d) As more fully set forth in Section 16.4 hereof (and
consistent with the intent of the parties as detailed in Article XXV
hereof), the Agent Lessor may exercise all remedies available to a
mortgagee under law or equity, as the Agent Lessor may determine;
(e) The Agent Lessor may, at its option, elect not to
terminate this Master Lease and continue to collect all Basic Rent,
Supplemental Rent, and all other amounts due to the Agent Lessor
(together with all reasonable costs of collection) and enforce the
Lessee's obligations under this Master Lease as and when the same
become due, or are to be performed, and at the option of the Agent
Lessor, upon any abandonment of the Property by the Lessee, the Agent
Lessor may elect not to terminate this Master Lease and may make the
necessary repairs in order to relet the Property, and relet the
Property or any part thereof for such term or terms (which may be for a
term extending beyond the Lease Term of this Master Lease) and at such
rental or rentals and upon such other terms and conditions as the Agent
Lessor in its reasonable discretion may deem advisable; and upon each
such reletting all rentals actually received by the Agent Lessor from
such reletting shall be applied to the Lessee's obligations hereunder
and the other Operative Documents in the manner provided in Section 7.6
of the Participation Agreement. If such rentals received from such
reletting during any period are less than the Rent with respect to the
Property to be paid during that period by the Lessee hereunder, the
Lessee shall pay any deficiency, as calculated by the Agent Lessor, to
the Administrative Agent on the next Scheduled Payment Date;
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(f) Unless the Property has been sold in its entirety, the
Agent Lessor may, whether or not the Agent Lessor shall have exercised
or shall thereafter at any time exercise any of its rights under clause
(d) or (e) of this Section 16.2 with respect to the Property or any
portion thereof, demand, by written notice to the Lessee specifying a
date not earlier than twenty (20) days after the date of such notice,
that the Lessee purchase, on the date specified in such notice, the
Property in accordance with the provisions of Article XXI and Section
18.3;
(g) The Agent Lessor may exercise any other right or remedy
that may be available to it under Applicable Law, or proceed by
appropriate court action (legal or equitable) to enforce the terms
hereof or to recover damages for the breach hereof. Separate suits may
be brought to collect any such damages for any period(s), and such
suits shall not in any manner prejudice the Agent Lessor's right to
collect any such damages for any subsequent period(s), or the Agent
Lessor may defer any such suit until after the expiration of the Lease
Term, in which event such suit shall be deemed not to have accrued
until the expiration of the Lease Term; or
(b) The Agent Lessor may retain and apply against the Lease
Balance all sums which the Agent Lessor would, absent such Lease Event
of Default, be required to pay to, or turn over to, the Lessee pursuant
to the terms of this Master Lease.
The Agent Lessor shall be entitled to enforce payment of the
indebtedness and performance of the obligations secured hereby and to exercise
all rights and powers under this instrument or under any of the other Operative
Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the obligations secured hereby may now or
hereafter be otherwise secured, whether by mortgage, security agreement, pledge,
lien, assignment or otherwise. Neither the acceptance of this instrument nor its
enforcement shall prejudice or in any manner affect the Agent Lessor's right to
realize upon or enforce any other security now or hereafter held by the Agent
Lessor, it being agreed that the Agent Lessor shall be entitled to enforce this
instrument and any other security now or hereafter held by the Agent Lessor in
such order and manner as the Agent Lessor may determine in its absolute
discretion. No remedy herein conferred upon or reserved to the Agent Lessor is
intended to be exclusive of any other remedy herein or by law provided or
permitted, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by any of the Operative Documents to the
Agent Lessor or to which it may otherwise be entitled, may be exercised,
concurrently or independently, from time to time and as often as may be deemed
expedient by the Agent Lessor. In no event shall the Agent Lessor, in the
exercise of the remedies provided in this instrument (including, without
limitation, in connection with the assignment of rents to Agent Lessor, or the
appointment of a receiver and the entry of such receiver onto all or any part of
the Property), be deemed a "mortgagee in possession," and the Agent Lessor shall
not in any way be made liable for any act, either of commission or omission, in
connection with the exercise of such remedies.
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If, pursuant to the exercise by the Agent Lessor of its remedies
pursuant to this Section 16.2, the Lease Balance and all other amounts due and
owing from the Lessee under this Master Lease and the other Operative Documents
have been paid in full, then the Agent Lessor shall remit to the Lessee any
excess amounts received by the Agent Lessor.
To the extent the amount the Lessee may reasonably expect to receive
from a sale of the Excluded Equipment and the amount the Lessors may reasonably
expect to receive from a sale of the Property would be maximized if the same
were sold jointly, the Lessee and Agent Lessor shall cooperate to develop a
mutually acceptable program for the sale of all such assets but in no event
shall either party be obligated to sell its assets for less than fair value as
reasonably determined by it and in no event shall Agent Lessor be precluded from
selling the Property at any time or the Lessee be precluded from selling the
Excluded Equipment at any time.
Section 16.3. Waiver of Certain Rights. (a) To the maximum extent
permitted by law, the Lessee hereby waives the benefit of any appraisement,
valuation, stay, extension, reinstatement and redemption laws now or hereafter
in force and all rights of marshalling in the event of any sale of the Property
or any interest therein, (b) if this Master Lease shall be terminated pursuant
to Section 16.2, the Lessee waives, to the fullest extent permitted by law, (i)
any notice of re-entry or the institution of legal proceedings to obtain
re-entry or possession; (ii) any right of redemption, re-entry or repossession;
(iii) the benefit of any laws now or hereafter in force exempting property from
liability for rent or for debt or limiting the Agent Lessor with respect to the
election of remedies; and (iv) any other rights which might otherwise limit or
modify any of the Agent Lessor's rights or remedies under this Article XVI.
Section 16.4. Deed of Trust Remedies. Without limiting any other
remedies set forth in this Master Lease, and also, without limiting the
generality of Article XXV hereof, the Trustee, for the benefit and at the
direction of the Agent Lessor may proceed by a suit or suits in equity or at
law, whether for a foreclosure hereunder, or (to the extent permitted by law)
for the sale of the Property, or against the Lessee on a recourse basis for the
Lease Balance, or for the specific performance of any covenant or agreement
contained herein or in aid of the execution of any power granted herein, or for
the appointment of a receiver pending any foreclosure hereunder or the sale of
the Property, or for the enforcement of any other appropriate legal or equitable
remedy. The Trustee and the Agent Lessor shall have all rights available to a
deed of trust trustee or a beneficiary of a deed of trust under the laws of the
State of Texas, including, without limitation, all rights granted a trustee or
beneficiary under Chapter 51.002 - 51.006 et. seq. of the Texas Property Code
(as amended, the "Deed of Trust Law"). In the event that any provisions of this
Master Lease shall be inconsistent with the Deed of Trust Law, the provisions of
the Deed of Trust Law shall take precedence over such provision of this Master
Lease, but shall not invalidate or render unenforceable any other provision of
this Master Lease that can be construed in a manner consistent with the Deed of
Trust Law. If any provision of this Master Lease shall grant the Trustee or the
Agent Lessor any rights or remedies upon default of the Lessee which are more
limited than the rights that would otherwise be vested in the Agent Lessor under
the Deed of Trust Law in the absence of such provision, the Trustee and the
Agent Lessor shall
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be vested with the rights granted in the Deed of Trust Law to the full extent
permitted by law.
ARTICLE XVII
AGENT LESSOR'S RIGHT TO CURE
Section 17.1. The Agent Lessor's Right to Cure the Lessee's Lease
Defaults. The Agent Lessor, without waiving or releasing any obligation or Lease
Event of Default, may (but shall be under no obligation to) remedy any Lease
Event of Default for the account and at the sole cost and expense of the Lessee,
including the failure by the Lessee to maintain the insurance required by
Article XIII, and may, to the fullest extent permitted by law, and
notwithstanding any right of quiet enjoyment in favor of the Lessee, enter upon
the Property following the occurrence and during the continuance of a Lease
Event of Default for such purpose and take all such action thereon as may be
reasonably necessary or appropriate therefor. No such entry shall be deemed an
eviction of the Lessee. All reasonable out-of-pocket costs and expenses so
incurred (including reasonable fees and expenses of counsel), together with
interest thereon at the Overdue Rate from the date on which such sums or
expenses are paid by the Agent Lessor, shall be paid by the Lessee to the Agent
Lessor as Supplemental Rent.
ARTICLE XVIII
PURCHASE PROVISIONS
Section 18.1. Purchase of the Property. Subject to the conditions
contained herein, and without limitation of the Lessee's purchase obligation
pursuant to Section 18.2 or 18.3, the Lessee shall have the irrevocable option
on any Business Day to purchase all (but not less than all) of the Property at a
price equal to the Lease Balance on the date of such purchase (the "Purchase
Option Price"). The Lessee's exercise of its option pursuant to this Section
18.1 shall be subject to the following conditions:
(i) the Lessee shall have delivered a Purchase Notice to the
Agent Lessor and the Administrative Agent not less than five (5) days
prior to such purchase, specifying the date of such purchase;
(ii) no Lease Event of Default shall have occurred and then
be continuing; and
(iii) the Lessee shall not have delivered (or, if delivered,
shall have rescinded) a written notice of the Lessee's exercise of the
Remarketing Option pursuant to Section 20.1(a).
If the Lessee exercises its option pursuant to this Section 18.1 then,
upon the Administrative Agent's receipt of all amounts due in connection
therewith, the Agent Lessor
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shall transfer to the Lessee or its designees all of the Agent Lessor's and the
Lessors' right, title and interest in and to the Property in accordance with the
procedures set forth in Section 21.1(a), such transfer to be effective as of the
date specified in the Purchase Notice. The Lessee may designate, in a notice
given to the Agent Lessor and the Administrative Agent not less than five (5)
Business Days prior to the closing of such purchase (time being of the essence),
the transferee or transferees to whom the conveyance shall be made (if other
than to the Lessee), in which case such conveyance shall (subject to the terms
and conditions set forth herein) be made to such designee; provided, however,
that such designation of a transferee or transferees shall not cause either the
Lessee or the Guarantor to be released, fully or partially, from any of their
respective obligations under this Master Lease or the Guaranty, including,
without limitation, the obligation to pay to the Agent Lessor the Lease Balance
on the date specified in the Purchase Notice.
Section 18.2. Expiration Date Purchase Obligation. Unless (a) the
Lessee shall have properly exercised its option pursuant to Section 18.1 and
purchased the Property pursuant thereto, or (b) the Lessee shall have properly
exercised the Remarketing Option and shall have fulfilled all of the
requirements of Article XX, then, subject to the terms, conditions and
provisions set forth in this Article, and in accordance with the terms of
Section 21.1(a), the Lessee (or its designee) shall purchase from the Agent
Lessor, and the Agent Lessor shall convey to the Lessee (or its designee), on
the Expiration Date (giving effect to any extensions thereof in connection with
the extension of the Expiration Date and the provisions of Article XIX hereof)
all of the interest of the Agent Lessor and the Lessors in the Property for an
amount equal to the Lease Balance. The Lessee may designate, in a notice given
to the Agent Lessor and the Administrative Agent not less than ten (10) Business
Days prior to the closing of such purchase (time being of the essence), the
transferee or transferees to whom the conveyance shall be made (if other than to
the Lessee), in which case such conveyance shall (subject to the terms and
conditions set forth herein) be made to such designee; provided, however, that
such designation of a transferee or transferees shall not cause either the
Lessee or the Guarantor to be released, fully or partially, from any of its
obligations under this Master Lease or the Guaranty, including, without
limitation, the obligation to pay the Agent Lessor the Lease Balance on the
Expiration Date.
Section 18.3. Acceleration of Purchase Obligation. The Lessee shall be
obligated to purchase for an amount equal to the Lease Balance all of the
interest of the Agent Lessor and the Lessors in the Property (notwithstanding
any prior election to exercise its Purchase Option pursuant to Section 18.1)
automatically and without notice upon the occurrence of any Lease Event of
Default described in clause (l) of Section 16.1. Any purchase under this Section
18.3 shall be in accordance with the procedures set forth in Section 21.1(a).
ARTICLE XIX
EXTENSION OF EXPIRATION DATE
The Lessee may extend the Expiration Date subject to, and in accordance
with, the terms and conditions of Section 11.1 of the Participation Agreement.
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ARTICLE XX
REMARKETING OPTION
Section 20.1. Option to Remarket. Subject to the fulfillment of each of
the conditions set forth in this Section 20.1, the Lessee shall have the option
(the "Remarketing Option") to remarket and complete the sale of the Property for
the Agent Lessor.
The Lessee's effective exercise and consummation of the Remarketing
Option shall be subject to the due and timely fulfillment of each of the
following provisions as of the dates set forth below. Failure by the Lessee to
timely satisfy in any material respect any of the following provisions of this
Section 20.1, or any of the provisions of Section 20.2, shall be deemed to be an
election by the Lessee, without further act thereby, of its Purchase Option for
the Property and any previous election of the Remarketing Option shall
automatically terminate.
(a) Unless a longer period is called for pursuant to any Requirement of
Law, on any date between 365 days and 180 days prior to the Expiration Date, the
Lessee shall give to the Agent Lessor and the Administrative Agent written
notice of the Lessee's exercise of the Remarketing Option, which exercise shall
be irrevocable by the Lessee.
(b) Not later than ninety (90) days prior to the Expiration Date, the
Lessee shall deliver to the Agent Lessor an Environmental Audit for the
Property. Such Environmental Audit shall be prepared by an environmental
consultant selected by the Agent Lessor and reasonably acceptable to the Lessee
and shall contain conclusions indicating that the consultant found no
Environmental Violations at the Property. If any such Environmental Audit
indicates any exceptions calling for a Phase Two environmental assessment, the
Lessee shall have also delivered prior to the Expiration Date a Phase Two
environmental assessment by such environmental consultant and a written
statement by such environmental consultant indicating that all such exceptions
have been remedied in compliance in all material respects with Applicable Law or
shall have delivered to Agent Lessor cash collateral or a letter of credit
reasonably acceptable to Agent Lessor from a bank reasonably acceptable to Agent
Lessor in the amount reasonably estimated by Agent Lessor to be necessary to
remedy such exceptions.
(c) On the date of the Lessee's notice to the Agent Lessor of the
Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease
Default shall exist, and, thereafter, no Lease Event of Default or Lease Default
shall occur.
(d) [Intentionally Omitted.]
(e) The Lessee shall have completed in all material respects all
Modifications, restoration and rebuilding of the Property pursuant to Sections
10.1 and 14.1 (as the case may be) and shall have fulfilled all of the
conditions and requirements in connection therewith pursuant to such Sections,
in each case prior to the date on which the Agent Lessor receives the Lessee's
notice of the Lessee's intention to exercise the Remarketing Option
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(time being of the essence), regardless of whether the same shall be within the
Lessee's control. The Lessee shall have also paid to the extent due the cost of
all Modifications commenced prior to the Expiration Date. The Lessee shall not
have been excused pursuant to Section 12.l from complying with any Applicable
Law that involved the extension of the ultimate imposition of such Applicable
Law beyond the Expiration Date unless the Lessee shall have provided for
adequate bond to secure any required payments. Any Permitted Property Liens
(other than Lessor Liens) on the Property that were contested by the Lessee
shall have been removed on or prior to the Expiration Date and the Agent Lessor
shall have received evidence satisfactory to it that all Liens (other than
Lessor Liens and uncontested Permitted Property Liens of the type described in
clauses (i), (vii), (viii) and (x) of the definition thereof) have been removed.
The Property shall be in good operating condition, ordinary wear and tear
excepted.
Section 20.2. Procedures During Remarketing. (a) During the Marketing
Period, the Lessee shall, as nonexclusive agent for the Agent Lessor, use its
commercial best efforts to sell the interest of the Agent Lessor in the Property
and will attempt to obtain the highest purchase price therefor and for not less
than the Fair Market Sales Value. The Lessee will be responsible for hiring
brokers and making the Property available for inspection by prospective
purchasers. The Lessee shall promptly upon reasonable request permit during
normal business hours inspection of the Property and any maintenance records
relating to the Property by the Agent Lessor, any Participant and any potential
purchasers, and the Lessee and the Lessee shall otherwise do all things
necessary to sell and deliver possession of the Property to any purchaser. All
such marketing of the Property shall be at the Lessee's sole expense.
(b) The Lessee shall use commercial best efforts to procure written
bids from one or more bona fide prospective purchasers. No such purchaser shall
be the Lessee, the Guarantor or any Affiliate thereof. The written offer must
specify the Expiration Date as the closing date. The Agent Lessor and each
Lessor shall have the right, but shall be under no duty, to solicit bids, to
inquire into the efforts of the Lessee to obtain bids or otherwise to take
action in connection with any such sale which action does not materially impair
Lessee's efforts.
(c) The Lessee shall submit all bids to the Agent Lessor promptly upon
receipt, and the Agent Lessor and each Lessor will have the right to submit any
one or more bids. Any sale by the Lessee shall be for the highest cash bid
submitted to the Agent Lessor or any bid that exceeds the Lease Balance and is
approved by Lessee. The determination of the highest bid shall be made by the
Agent Lessor prior to the end of the Marketing Period, but in any event, the
Agent Lessor shall have no obligation to approve any bid for the Property unless
the highest bid for the Property equals or exceeds the Lease Balance. All bids
shall be on an all-cash basis.
(d) In connection with any such sale of the Property, the Lessee shall,
on or before the Expiration Date, and at its own cost, transfer possession of
the Property to the purchaser thereof by surrendering the same into the
possession of such purchaser free and clear of all Liens other than Lessor Liens
and such other Permitted Liens as may be agreed to with the
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Purchaser, in good operating condition (as modified by Modifications permitted
by this Lease), ordinary wear and tear excepted (or in such condition as the
purchaser is willing to accept), and in compliance in all material respects with
all Applicable Law and the provisions of this Master Lease. The Lessee will
provide to the purchaser all customary "seller's" indemnities if necessary to
effectuate the sale (including, without limitation, a reasonable and customary
environmental indemnity to the extent the same are required by the purchaser)
and representations and warranties regarding title, absence of Liens (except
Lessor Liens and any negotiated "permitted liens") and the condition of the
Property by the Lessee. The Lessee shall have obtained, at its cost and expense
(or as may otherwise be agreed to with the Purchaser), all required governmental
and regulatory consents and approvals and shall have made all filings as
required by Applicable Law in order to carry out and complete the transfer of
the Property by the Lessee. The Lessee shall, on and within a reasonable time
before and after the Expiration Date, cooperate with the Agent Lessor and the
purchaser of the Property in order to facilitate the ownership and operation by
such purchaser of the Property after the Expiration Date, which cooperation
shall include the following, all of which the Lessee shall do on or before the
Expiration Date, or as soon thereafter as is reasonably practicable: providing
all books, records data and technical information regarding the maintenance and
operation of the Property; providing a current copy of the Plans and
Specifications, granting or assigning all licenses to the extent necessary for
the operation and maintenance of the Property and cooperating in seeking and
obtaining all necessary Governmental Action; provided that Lessee shall not be
required to transfer or reveal any proprietary information, license or
intellectual property right. As to the Lessors, any such sale shall be made on
an "as is, with all faults" basis without representation or warranty by the
Agent Lessor or any other Lessor other than the absence of Lessor Liens
attributable to such Lessor. Any agreement as to such sale shall be made subject
to the rights of the Lessors hereunder.
(e) The Lessee shall pay directly, and not from the sale proceeds, all
prorations, credits, costs and expenses of the sale of the Property customarily
paid by a seller, whether incurred by the Lessors or the Lessee, including,
without limitation, to the extent customarily paid by a seller the cost of all
title insurance, surveys, environmental reports, appraisals, transfer taxes, the
reasonable attorneys' fees of the Lessors, the Lessee's attorneys' fees,
commissions, escrow fees, recording fees, and all applicable documentary and
other transfer taxes.
(f) The Lessee shall pay to the Administrative Agent on the earlier of
90 days after the notice delivered pursuant to Section 20.1(a) hereof or the
Expiration Date (or in the case of Supplemental Rent, to the Person entitled
thereto) an amount equal to the Loan Balance plus all accrued and unpaid Rent
(including Supplemental Rent, if any) and all other amounts hereunder which have
accrued or will accrue prior to or as of the date of payment, in the type of
funds specified in Section 3.4 hereof.
(g) The Lessee shall pay to the Administrative Agent on or prior to the
Expiration Date the amounts, if any, required to be paid pursuant to Section
13.2 of the Participation Agreement.
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(h) The sale of the Property shall be consummated on or before the
Expiration Date and the gross proceeds (the "Gross Remarketing Proceeds") of the
sale of the Property (less any marketing, closing or other costs, prorations or
commissions) shall be paid directly to the Administrative Agent; provided,
however, that if the sum of (x) the Gross Remarketing Proceeds from such sale
plus (y) the Loan Balance received by the Administrative Agent pursuant to
Section 20.2(f) exceeds the Lease Balance as of such date, then the excess shall
promptly be paid to the Lessee.
(i) Except as expressly set forth herein, the Lessee shall have no
right, power or authority to bind the Agent Lessor or any Participant in
connection with any proposed sale of the Property.
(j) During the Marketing Period, the obligation of the Lessee to pay
Rent with respect to the Property (including the installment of Rent due on the
Expiration Date) shall continue undiminished until payment in full of the Lease
Balance and all other amounts due to the Participants under the Operative
Documents.
Section 20.3. Remedies for Failed Remarketing. If the Lessee
effectively elects the Remarketing Option and each of the conditions and
requirements in Sections 20.1 and 20.2 shall have been satisfied, but
nevertheless the Lessee is unable to obtain bids reasonably satisfactory to the
Lessors, and the sale of the Property is not consummated prior to the end of the
Marketing Period, the Agent Lessor shall by written notice to the Lessee choose
one or both of the following remedies:
(a) Continue Remarketing Efforts. At the request of the Agent
Lessor, the Lessee shall continue to market the Property on behalf of
the Agent Lessor for up to an additional six (6) months and at the sole
cost and expense of Lessee, and during such extended marketing period
continue to comply with the requirements of Articles IX, X, XI, XIII,
XIV and XX (to the extent relevant) at Lessee's sole cost and expense.
The Agent Lessor shall by written notice to the Lessee indicate the
duration of such extended marketing period (the last day of such
period, the "Extended Expiration Date"), and the Agent Lessor shall
have the option to accelerate or shorten such Extended Expiration Date
at any time by prior written notice to Lessee. If, at the end of the
Extended Expiration Date, the Lessee is still unable to obtain bids
satisfactory to the Lessors, and the sale of the Property is not
consummated prior to the end of the Extended Expiration Date, then the
provisions of Section 20.3(b) hereof shall apply.
(b) Return. Demand that the Property be returned to the Agent
Lessor, whereupon the Lessee shall do each of the following at its own
cost and expense:
(i) execute and deliver to the Agent Lessor and the
Agent Lessor's title insurance company an affidavit as to the
absence of any Liens (other than Permitted Liens of the type
described in clause (i), (vii), (viii) or (x) of the
definition thereof), and shall execute and deliver to the
Agent Lessor and the other Lessors a statement of termination
of this Master Lease;
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(ii) transfer possession of the Property to the
Agent Lessor or any Person designated by the Agent Lessor, by
surrendering the same into the possession of the Agent Lessor
or such Person, as the case may be, in the condition required
by this Master Lease and in compliance in all Material
respects with Applicable Law; and
(iii) cooperate fully with the Agent Lessor, the
other Lessors and/or any Person designated by the Agent Lessor
to receive the Property which cooperation shall include: if
Agent Lessor is unable to obtain a commercially reasonable
operator of the Property, upon requested by the Agent Lessor,
the Lessee hereby agrees to enter into an operating agreement
and in connection therewith to serve as the operator of the
Property; such agreement to be on market terms established in
good faith and reasonably acceptable to the Agent Lessor and
Lessee, providing copies of all books, records, data and
technical information regarding the maintenance and operation
of the Property, providing a current copy of the Plans and
Specifications, to the extent permitted by any Requirement of
Law, granting or assigning all assignable licenses necessary
for the operation and maintenance of the Property and
cooperating reasonably in seeking and obtaining all necessary
Governmental Action; provided that Lessee shall not be
required to transfer or reveal any proprietary information,
license or intellectual property right. The obligations of the
Lessee under this paragraph shall survive the expiration or
termination of this Master Lease.
Section 20.4. No Sale of Property. If the Lessee effectively elects the
Remarketing Option and each of the conditions and requirements in Sections 20.1
and 20.2 shall have been satisfied, but nevertheless the Lessee is unable to
obtain a bid acceptable hereunder during the Remarketing Period or any extension
thereof pursuant to Section 20.3(a) and the Property is not sold (due either to
the Agent Lessor's rejection of any bids or the failure to obtain any bids),
there shall not be deemed to be a Lease Event of Default by virtue of such
failure to sell the Property and the Lessee shall only be obligated to make the
payments referred to in Sections 3.4, 20.2(e), (f) and (g) hereof.
ARTICLE XXI
PROCEDURES RELATING TO PURCHASE OR REMARKETING OPTIONS
Section 21.1. Provisions Relating to the Exercise of Purchase Option or
Obligation and Conveyance upon Remarketing; Conveyance upon Certain Other
Events. (a) In connection with any termination of this Master Lease pursuant to
the terms of Article XV, in connection with the Lessee's purchase of the
Property in accordance with Section 18.1 or in connection with the Lessee's
Expiration Date Purchase Obligation or obligations under Section 16.2(f) or
18.3, then, upon the date on which this Master Lease is to terminate and upon
tender by the Lessee of the amounts set forth in Article XV, Sections 16.2(f),
18.1, 18.2 or 18.3, as applicable:
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(i) the Agent Lessor shall execute and deliver to the Lessee
(or to the Lessee's designee) at the Lessee's cost and expense and in
form reasonably acceptable to Lessee: (x) a special warranty deed
(warranting as to Lessor Liens only) with respect to the Property with
a covenant against grantor's acts, and (y) an assignment of the entire
interest of the Agent Lessor in the Property (which shall include an
assignment of all of the right, title and interest of the Agent Lessor
and the Lessors in and to any Net Proceeds with respect to the Property
not previously received by the Agent Lessor and an assignment of leases
of the Property), in each case in recordable form and otherwise in
conformity with local custom and free and clear of the Lien of the
Lessor Mortgage and any Lessor Liens;
(ii) the Property shall be conveyed to the Lessee (or its
designee) "AS IS" and in its then present physical condition; and
(iii) the Agent Lessor shall execute and deliver to Lessee (or
its designee) and the Lessee's title insurance company an affidavit as
to the Agent Lessor's title and Lessor Liens attributable to it and
shall execute and deliver to the Lessee a statement of termination of
this Master Lease.
(b) If the Lessee exercises the Remarketing Option pursuant to Article
XX and a satisfactory purchaser is obtained, then the Lessee shall, on the
Expiration Date, and at its own cost, transfer possession of the Property to the
independent purchaser thereof, by surrendering the same into the possession of
such purchaser free and clear of all Liens other than Lessor Liens and the lien
of the Lessor Mortgage (except as otherwise agreed to by Lessee with the
purchaser), in good condition (as modified by Modifications permitted by this
Master Lease), ordinary wear and tear excepted (except as otherwise agreed to by
Lessee with the purchaser), and in compliance in all material respects with
Applicable Law. The Lessee shall reasonably cooperate with the Agent Lessor, the
other Lessors and the independent purchaser of the Property in order to
facilitate the purchase by such purchaser of the Property, which cooperation
shall include the following, all of which the Lessee shall do (or cause to be
done) on or before the Expiration Date or as soon thereafter as is reasonably
practicable: providing copies of all books, records, data and technical
information regarding the maintenance and operation of the Property; providing a
current copy of the Plans and Specifications; to the extent permitted by any
Requirement of Law, granting or assigning all licenses necessary for the
operation and maintenance of the Property; and cooperating in seeking and
obtaining all necessary Governmental Action; provided that Lessee shall not be
required to transfer or reveal any proprietary information, license or
intellectual property right. The obligations of the Lessee under this paragraph
shall survive the expiration or termination of this Master Lease. The Lessors
agree to cooperate and execute such documents as are necessary to facilitate the
foregoing.
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ARTICLE XXII
ESTOPPEL CERTIFICATES
Section 22.1. Estoppel Certificates. At any time and from time to time
upon not less than ten (10) Business Days' prior request by the Agent Lessor or
of the Lessee (the "Requesting Party"), the other party (whichever party shall
have received such request, the "Certifying Party") shall furnish to the
Requesting Party a certificate signed by a Responsible Officer certifying that
this Master Lease is in full force and effect (or that this Master Lease is in
full force and effect as modified and setting forth the modifications); the
dates to which the Basic Rent and Supplemental Rent have been paid; to the best
knowledge of the signer of such certificate, whether or not the Requesting Party
is in default under any of its obligations hereunder and, if so, the nature of
such alleged default; and such other matters under this Master Lease as the
Requesting Party may reasonably request.
Any such certificate furnished pursuant to this Article XXII may be
relied upon by the Requesting Party, and any existing or prospective mortgagee,
purchaser or lender, and any accountant or auditor, of, from or to the
Requesting Party (or any Affiliate thereof).
ARTICLE XXIII
ACCEPTANCE OF SURRENDER
No surrender to the Agent Lessor or any Lessor of this Master Lease or
of the Property or of any part of any thereof or of any interest therein shall
be valid or effective unless agreed to and accepted in writing by the Agent
Lessor and, prior to the payment or performance of all obligations under the
Loan Agreement and termination of the Commitments, the Administrative Agent, and
no act by the Agent Lessor or any Lessor or any Lender or any representative or
agent of any Lessor or any Lender, other than a written acceptance, shall
constitute an acceptance of any such surrender.
ARTICLE XXIV
NO MERGER OF TITLE
There shall be no merger of this Master 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 Master Lease
or the leasehold estate created hereby or any interest in this Master Lease or
such leasehold estate, (b) the fee estate in the Property, except as may
expressly be stated in a written instrument duly executed and delivered by the
appropriate Person or (c) a beneficial interest in any Lessor.
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ARTICLE XXV
INTENT OF THE PARTIES
Section 25.1. Ownership of the Property. (a) The parties hereto intend
that (i) for financial accounting purposes with respect to the Lessee, the Agent
Lessor will be treated as the owner and lessor of an undivided interest in the
Property and the Lessee will be treated as the lessee of the Property and (ii)
for all other purposes, including federal and all state and local income tax
purposes, state real estate and commercial law and bankruptcy purposes, (A) this
Master Lease will be treated as a financing arrangement, (B) the Lessors and the
Lenders will be deemed lenders making loans to the Lessee in an amount equal to
the sum of the Lessor Amounts and the outstanding principal amount of the Loans,
which loans are secured by the Property and (C) the Lessee will be treated as
the owner of the Property and will be entitled to all tax benefits ordinarily
available to an owner of properties like the Property for such tax purposes.
Nevertheless, the Lessee acknowledges and agrees that none of the Administrative
Agent, the Agent Lessor, the Arranger or any Participant has made any
representations or warranties to the Lessee concerning the tax, accounting or
legal characteristics of the Operative Documents and that the Lessee has
obtained and relied upon such tax, accounting and legal advice concerning the
Operative Documents as it deems appropriate. The parties hereto will not take
any position inconsistent with the intentions expressed herein.
(b) It is the intent of the parties hereto that this Master Lease
grants a security interest and deed of trust lien, as the case may be, on the
Property to and for the benefit of the Agent Lessor for the benefit of the
Lessors and the other Participants to secure the Lessee's performance under and
payment of all amounts under the Lease and the other Operative Documents.
Section 25.2. Liens and Security Interests. (a) Specifically, without
limiting the generality of Section 25.1, the Agent Lessor and the Lessee intend
and agree that in the event of any insolvency or receivership proceedings or a
petition under the United States bankruptcy laws or any other applicable
insolvency laws or statute of the United States of America or any State or
Commonwealth thereof affecting the Lessee, any Lessor, any Lender or any
collection actions, the transactions evidenced by the Operative Documents shall
be regarded as loans made by the Lenders and the Lessors as unrelated third
party lenders to the Lessee secured by the Property (it being understood that
the Lessee has GRANTED, BARGAINED, SOLD, CONVEYED and CONFIRMED, and hereby
GRANTS, BARGAINS, SELLS, CONVEYS and CONFIRMS, and grants a security interest in
the Property (consisting of a security agreement with respect to that portion of
the Property constituting personal property and deed of trust with respect to
that portion of the Property constituting a leasehold and real property) IN
TRUST all with POWER OF SALE to the Trustee and its successors and assigns in
trust for the use and benefit of the Agent Lessor (for the benefit of the
Lessors and the Lenders) to secure all Lessor Amounts and Loans advanced by the
Participants for the acquisition of the Property in an original principal amount
of $96,957,507.26 and maturing on November 24, 2002, together with Yield or
interest, as
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applicable, thereon, and all other amounts payable under the Operative Documents
in connection therewith, effective on the date hereof).
(b) Specifically, but without limiting the generality of Section 25.1,
the Agent Lessor and the Lessee further intend and agree that, for the purpose
of securing the Obligation of the Lessee for the repayment of the
above-described loans from the Lessors and the Lenders to the Lessee and to
further secure the Lessee's Obligations, (i) this Master Lease shall also be
deemed to be a security agreement and financing statement within the meaning of
Article 9 of the Uniform Commercial Code and a real property deed of trust; (ii)
the conveyance provided for hereby and in Article II of this Master Lease shall
be deemed to be a grant by the Lessee to the Trustee and its successors and
assigns in trust for the use and benefit of the Agent Lessor (for the benefit of
the Lessors and the Lenders) of a mortgage lien and security interest in all of
the right, title and interest of the Lessee in and to the Property and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, investments, securities or other property (it being understood that the
Lessee hereby mortgages and warrants and grants a security interest in the
Property to the Trustee and its successors and assigns in trust for the use and
benefit of the Agent Lessor for the benefit of the Lessors and the Lenders to
secure all Loans and Lessor Amounts advanced by the Participants for the
acquisition of the Property, together with Yield or interest thereon, and all
other amounts payable under the Operative Documents in connection therewith);
(iii) the possession by the Agent Lessor or any of its agents of notes and such
other items of property as constitute instruments, money, negotiable documents
or chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-305 of the
Uniform Commercial Code; and (iv) notifications to Persons holding such
property, and acknowledgments, receipts or confirmations from financial
intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed
to have been given for the purpose of perfecting such security interest under
any Requirement of Law. The Agent Lessor and the Lessee shall, to the extent
consistent with this Master Lease, take such actions and execute, deliver, file
and record such other documents, financing statements and mortgages as may be
necessary to ensure that, if the Lease was deemed to create a security interest
in the Property in accordance with this Section 25.2, such security interest
would be deemed to be a perfected security interest (subject only to Permitted
Property Liens) and will be maintained as such throughout the Lease Term.
(c) Specifically, but without limiting the foregoing or the generality
of Section 25.1, Lessee hereby grants, bargains, sells, warrants, conveys,
aliens, remises, releases, assigns, sets over and confirms to the Trustee and
its successors and assigns in trust for the use and benefit of the Agent Lessor
all of Lessee's right, title, and interest in and to the following
(collectively, the "Mortgaged Property"): (i) the Property (as described in
Schedule II attached hereto) and Appurtenant Rights relating thereto and all
proceeds, both cash and noncash thereof; (ii) all easements, rights-of-way,
strips and gores of land, vaults, streets, ways, alleys, passages, sewer rights,
waters, water courses, water rights, minerals, flowers, shrubs, crops, trees,
timber and other emblements, and all estates, rights, titles, interests,
tenements, hereditaments and appurtenances, reversions and remainders
whatsoever, in any way belonging, relating or appertaining to the Property or
any part thereof, whether now owned or hereafter acquired by Lessee; (iii) all
right, title and interest
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of Lessee in any and all leases, rental agreements and arrangements of any sort
now or hereafter affecting the Property or any portion thereof and providing for
or resulting in the payment of money to Lessee for the use of the Property or
any portion thereof, whether the user enjoys the Property or any portion thereof
as tenant for years, licensee, tenant at sufferance or otherwise, and
irrespective of whether such leases, rental agreements and arrangements be oral
or written, and including any and all extensions, renewals and modifications
thereof (the "Subject Leases") and guaranties of the performance or obligations
of any tenants or lessees thereunder, together with all income, rents, issues,
profits and revenues from the Subject Leases (including all tenant security
deposits and all other tenant deposits, whether held by Lessee or in a trust
account, and all other deposits and escrow funds relating to any Subject
Leases), and all the estate, right, title, interest, property, possession, claim
and demand whatsoever at law, as well as in equity, of Lessee of, in and to the
same; provided, however, that although this Master Lease contains (and it is
hereby agreed that this Master Lease contains) a present, current, unconditional
and absolute assignment of all of said income, rents, issues, profits and
revenues, Lessee shall collect and apply such rental payments and revenues as
provided in the Lease and the other Operative Documents; (iv) all right, title
and interest of Lessee in, to and under all franchise agreements, management
contracts, consents, authorizations, certificates and other rights of every kind
and character of any Governmental Authority affecting the Property, to the
extent the same are transferable, service contracts, utility contracts, leases
of equipment, documents and agreements relating to the construction of any
Improvements (including any and all construction contracts, architectural
contracts, engineering contracts, designs, plans, specifications, drawings,
surveys, tests, reports, bonds and governmental approvals) and all other
contracts, licenses and permits now or hereafter affecting the Property or any
part thereof and all guaranties and warranties with respect to any of the
foregoing (the "Subject Contracts"); (v) all right, title and interest of Lessee
in any insurance policies or binders now or hereafter relating to the Property,
including any unearned premiums thereon, as further provided in this Master
Lease; (vi) all right, title and interest of Lessee in any and all awards,
payments, proceeds and the right to receive the same, either before or after any
foreclosure hereunder, as a result of any temporary or permanent injury or
damage to, taking of or decrease in the value of the Property by reason of
casualty, condemnation or otherwise as further provided in this Master Lease;
(vii) all right, title and interest of Lessee in all utility, escrow and all
other deposits (and all letters of credit, certificates of deposit, negotiable
instruments and other rights and evidence of rights to cash) now or hereafter
relating to the Property or the purchase, construction or operation thereof;
(viii) all claims and causes of action arising from or otherwise related to any
of the foregoing, and all rights and judgments related to any legal actions in
connection with such claims or causes of action; and (ix) all Modifications
(except as set forth in Article X hereof), extensions, additions, improvements,
betterments, renewals and replacements, substitutions, or proceeds of any of the
foregoing acquired with proceeds of any of the property described hereinabove;
all of which foregoing items are hereby declared and shall be deemed to be a
portion of the security for the indebtedness and Obligations herein described, a
portion of the above described collateral being located upon the Land; provided
that the Excluded Equipment described on Schedule III hereto are not subject to
this Master Lease.
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(d) Power of Sale. Without limiting any other remedies set forth
herein, in the event that a court of competent jurisdiction rules that this
Master Lease constitutes a mortgage, deed of trust or other secured financing
with respect to the Property as is the intent of the parties pursuant to Article
XXV hereof, then the Agent Lessor and the Lessee agree that (i) the Lessee
hereby grants to the Trustee and its successor and assigns in trust for the use
and benefit of the Agent Lessor (for the benefit of the Lessors and the Lenders)
a Lien against the Property (including the leasehold estate therein) WITH POWER
OF SALE to the extent permitted by law, and that, upon the occurrence and during
the continuance of any Lease Event of Default, the Trustee may, and is hereby
irrevocably empowered to, with or without entry, and to the extent permitted by
applicable law, sell or cause the sale of the Property or any part or parts
thereof at one or more public auctions as an entirety or in parcels as the
Trustee may elect free from any equity of redemption for cash, on credit, or for
other property, for immediate or future delivery, and on such terms as the
Trustee shall deem advantageous and proper, such sale or sales to be made in
such manner and upon such notice and advertisement as may be required by
applicable law, or in the absence of any such requirements, as the Trustee may
deem appropriate, and to make conveyance to the purchase or purchasers.
WAIVER: THE LESSEE ACKNOWLEDGES AND AGREES THAT IF IT DEFAULTS, A NON-JUDICIAL
FORECLOSURE SALE OF THE PROPERTY, IF PERMITTED BY APPLICABLE LAW, MAY BE
CONDUCTED WITHOUT A HEARING OF ANY KIND AND WITHOUT NOTICE BEYOND THE
PUBLICATION AND POSTING OF THE NOTICE OF SALE AS REQUIRED BY LAW. THE LESSEE
HEREBY WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHTS IT MAY HAVE
TO ANY SUCH HEARING AND NOTICE.
Without limiting the generality of the foregoing, the Agent Lessor (or,
to the extent required by law, the Trustee) may, if at the time such action may
be lawful and always subject to compliance with any mandatory legal
requirements, direct the Trustee to enforce its trust and to sell the Property,
as an entirety or in parcels, by one sale or by several sales, held at one time
or at different times, all as the Trustee acting may elect, each sale to be held
at the location within the county courthouse designated for the holding of
non-judicial foreclosure sales by the Commissioners Court of any county in which
a part of the Property constituting real property to be sold is situated (or if
no area has been so designated, then in an area within said courthouse described
in the notice referred to below in this section and to be made on the first
Tuesday of some month between the hours of 10:00 A.M. and 4:00 P.M. to the
highest bidder for cash at public venue, after the Trustee (or a person or
persons selected by the Trustee) and Agent Lessor shall have given notices of
the proposed sale in the manner hereinafter set forth, and to make due
conveyance to the purchaser or purchasers, with special warranty of title or no
warranty of title to such purchaser or purchasers binding upon the Lessee and
its heirs, executors, administrators, and successors. Such sale must begin at
the time stated in the notice referred to below in this section or not later
than three hours after that time. The Lessee, for itself, its heirs and assigns,
and for anyone who may claim by, through or under the Lessee, hereby expressly
and specifically waives all rights to a marshaling of the assets of the Lessee,
including the Property, or to a sale in inverse order of alienation.
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The Trustee (or a person or persons selected by the Trustee) shall give
notice of each such proposed sale by posting written notice of the time, place,
and terms of sale at the courthouse door, and by filing a copy of such written
notice in the office of the county clerk, of the county in which the sale is to
be made at least twenty-one (21) days preceding the date of the sale. In
addition to the foregoing notice or notices to be posted and filed by the
Trustee (or a person or persons selected by the Trustee), the Agent Lessor
shall, at least twenty-one (21) days preceding the date of sale, serve or cause
to be served written notice of the proposed sale by certified mail on each
debtor obligated to pay such indebtedness according to the records of the Agent
Lessor. The service of such notice shall be completed five (5) days after the
deposit of the notice, enclosed in a postpaid wrapper, properly addressed to
each such debtor at the most recent address (which shall be within the United
States of America) as shown by the records of the Agent Lessor, in a post office
or official depository under the care and custody of the United States Postal
Service. The affidavit of any person having knowledge of the facts to the effect
that such service was completed shall be prima facie evidence of the fact of
service. In this respect and to the full extent it may legally do so, the
Lessee also expressly covenants, stipulates, and agrees that: (i) the address of
the Lessee set out in Section 26.4 hereof shall be deemed and considered
conclusively to be and remain at all times the most recent address of all
debtors obligated to pay such indebtedness as shown by the records of the Agent
Lessor, provided that such address may be changed to some other address within
the United States of America from time to time only by express written notice of
change thereof signed by the Lessee and actually delivered to and received by
the Agent Lessor and setting forth a new address which shall be within the
United States of America and which shall be deemed and considered conclusively
to be and remain at all times thereafter the recent address of the Lessee as
shown by the records of the Agent Lessor until changed in the manner herein
provided, (ii) the records of the Agent Lessor shall not be deemed to reflect
any change in the name or identity of the Lessee (to whom notice of a proposed
sale shall be required to be mailed as provided for above) unless and until
express written notice of such change signed by the Lessee shall have been
actually delivered to and received by the Agent Lessor, and (iii) no notice of
such sale or sales other than the notices hereinabove provided shall be required
to be given to the Lessee (or anyone who may claim by, through or under the
Lessee) or any other persons and any other notice (including, without
limitation, any notice of acceleration of, or intent to accelerate, the unpaid
balance of the Notes and Certificates) is expressly waived.
The provisions of this section with respect to posting, serving, filing,
and giving notices of sale are intended to comply with the provisions of section
51.002 of the Property Code of the State of Texas (such section 51.002 being
referred to as the "Subject Statute"). In the event the requirement for any
notice, or the posting, serving, filing, or giving thereof, under the Subject
Statute shall be eliminated or the prescribed manner of posting, serving,
filing, or giving same is modified by future amendment to the Subject Statute,
the requirement for such particular notice shall be stricken from, or the manner
of posting, serving, filing, or giving any notice hereunder modified in, this
Master Lease in conformity with such amendment. The manner herein prescribed for
posting, serving, filing, or giving any notice, other than that to be posted and
filed or caused to be posted or filed by the Trustee, shall not be deemed
exclusive but such notice or notices may be posted, served, filed, or given in
any other manner which may be permitted by applicable law. Further, in
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relation to this Master Lease and the exercise of any power of sale by the
Trustee hereunder, if the Subject Statute shall be amended or modified to
require any other notice or the posting, filing, serving, or giving thereof or
any statute hereafter enacted shall require any other notice or the posting,
filing, serving, or giving thereof, the Trustee or the person selected by him is
hereby authorized and empowered by the Lessee to give such notice or make such
posting, filing, serving, or giving thereof; provided, however, the Lessee
waives such other notice or the posting, filing, serving, or giving thereof to
the full extent the Lessee may lawfully so do. Any provisions of this paragraph,
or any amendments to or modifications of the Subject Statute to the contrary
notwithstanding, the time periods provided for in the immediately preceding
paragraph in respect of which the notices provided for in said paragraph are to
be given shall not be shortened or eliminated as a result of any such amendment
or modification.
In addition to any other remedies granted in this Master Lease to the
Agent Lessor or the Trustee (including specifically, but not limited to, the
right to proceed against all the Property in accordance with the rights and
remedies in respect to those portions of the Property which are real property
pursuant to section 9.501(d) of the Uniform Commercial Code), the Agent Lessor
may proceed under the Uniform Commercial Code as to all or any part of the
personal property (tangible or intangible) and fixtures included with the
Property (such portion of the Property being referred to herein as the
"Personalty") and shall have and may exercise with respect to the Personalty all
the rights, remedies, and powers of a secured party under the Uniform Commercial
Code, including, without limitation, the right and power to sell, at one or more
public or private sales, or otherwise dispose of, lease, or utilize the
Personalty and any part or parts thereof in any manner authorized or permitted
under the Uniform Commercial Code after default by a debtor, and to apply the
proceeds thereof toward payment of any costs and expenses and attorney's fees
and legal expenses thereby incurred by the Agent Lessor, and toward payment of
the Indebtedness Hereby Secured in such order or manner as provided herein. Any
requirement of said Code for reasonable notification shall be met by mailing
written notice to the Lessee at its address set forth in Section 26.4 at least
ten (10) days prior to the sale or other event for which such notice is
required.
(e) The Agent Lessor may proceed to protect and enforce its rights by a
suit or suits in equity or at law, or for the specific performance of any
covenant or agreement contained herein or in the Operative Documents, or in aid
of the execution of any power herein or therein granted, or for the foreclosure
of the deed of trust lien created by this Master Lease, or for the enforcement
of any other appropriate legal or equitable remedy. Upon the bringing of any
suit to foreclose the deed of trust lien created by this Master Lease or to
enforce any other remedy available hereunder, the plaintiff shall be entitled as
a matter of right, without notice and without giving bond to the Lessee or
anyone claiming under, by or through it, and without regard to the solvency or
insolvency of the Lessee or the then value of the premises, to have a receiver
appointed of all the Property and of the earnings, income, rents, issues,
profits and proceeds thereof, with such power as the court making such
appointment shall confer, and the Lessee does hereby irrevocably consent to such
appointment.
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(f) In case of any sale of the Property, or of any part thereof,
pursuant to any judgment or decree of any court or otherwise in connection with
the enforcement of any of the terms of this Master Lease, the principal of the
Notes and Certificates, if not previously due, and the interest and Yield
accrued thereon, shall at once become and be immediately due and payable; also
in the case of any such sale, the Agent Lessor may bid and become the purchaser,
and the purchaser or purchasers, for the purpose of making settlement for or
payment of the purchase price, shall be entitled to turn in and use the Notes
and Certificates and any claims for interest, Yield and Break Costs due and
unpaid thereon, in order that there may be credited as paid on the purchase
price the sum apportionable and applicable to the Notes and Certificates,
including principal, interest, Yield and Break Costs thereof, out of the net
proceeds of such sale after allowing for the proportion of the total purchase
price required to be paid in actual cash. If at any foreclosure proceeding the
Property shall be sold for a sum less than the total amount of indebtedness for
which judgment is therein given, the judgment creditor shall be entitled to the
entry of a deficiency decree against the Lessee and against the property of the
Lessee for the amount of such deficiency. THE LESSEE, FOR ITSELF AND ON BEHALF
OF ALL FUTURE OWNERS OF THE PROPERTY, WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ITS RIGHTS AND BENEFITS UNDER THE PROVISIONS OF SECTIONS 51.003, 51.004
AND 51.005 OF THE TEXAS PROPERTY CODE, AS MAY BE AMENDED FROM TIME TO TIME.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IT IS AGREED THAT THE BID
PRICE FOR THE PROPERTY WHICH IS ACCEPTED BY THE TRUSTEE, AGENT LESSOR OR ANY
SUCCESSOR OR SUBSTITUTE SECURITY TRUSTEE AT ANY FORECLOSURE SALE OF THE PROPERTY
SHALL BE CONCLUSIVELY PRESUMED TO BE THE FAIR MARKET VALUE OF THE PROPERTY.
Section 25.3. Security Agreement. This Master Lease shall constitute a
security agreement as defined in the Uniform Commercial Code and the Guarantor
hereby grants to the Agent Lessor a security interest within the meaning of the
Uniform Commercial Code in favor of the Agent Lessor on the Property and any
proceeds thereof and other rights described in the granting clauses of this
Article XXV.
Section 25.4. FIXTURE FILING. CERTAIN OF THE PROPERTY IS OR WILL BECOME
"FIXTURES" (AS THAT TERM IS DEFINED IN THE UNIFORM COMMERCIAL CODE) ON THE REAL
ESTATE DESCRIBED IN SCHEDULE I ATTACHED HERETO AND THIS MASTER LEASE, UPON BEING
FILED FOR RECORD IN THE REAL ESTATE RECORDS SHALL OPERATE ALSO AS A FINANCING
STATEMENT UPON SUCH OF THE GRANTED PROPERTY WHICH IS OR MAY BECOME FIXTURES. THE
LESSEE HAS AN INTEREST OF RECORD IN THE GRANTED PROPERTY.
Section 25.5. Successor Trustees. In the case of the absence of the
Trustee from the State of Texas, or his death, refusal, or failure to act, or in
the event the Agent Lessor should elect at any time (with or without cause) to
remove the Trustee then acting, a successor or substitute may be named,
constituted, and appointed by the Agent Lessor, without further formality than
an appointment and designation in writing, which appointment and designation
shall be full evidence of the right and authority to make the same and of all
facts therein recited; and this conveyance shall vest in the successor or
substitute Trustee (herein, the "Successor or Substitute Trustee") the title,
powers, and duties
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conferred on the Trustee named herein and the conveyance by the Substitute or
Successor Trustee to the purchaser at any sale made pursuant hereto shall be
valid and effective as fully as hereinabove provided in the case of a conveyance
by the Trustee. Such right to appoint a Successor or Substitute Trustee shall
exist as often as and whenever the Trustee, original, successor, or substitute,
cannot or will not act or has been removed. The Lessee specifically covenants
and stipulates that: the recitals in the conveyance made to the purchaser either
by the Trustee or any Successor or Substitute Trustee, shall be full proof and
evidence of the matters therein stated as to such purchaser; no other proof
shall be requisite of the request by the Agent Lessor on the Trustee or on any
Successor or Substitute Trustee to enforce this Master Lease, or the due,
timely, and proper posting, filing, and giving of all notices and making of the
sale, or any particulars thereof, or of the inability, refusal, or failure of
the Trustee or any Successor or Substitute Trustee to act, or of the removal of
the Trustee or any Substitute or Successor Trustee, or of the appointment of a
Successor or Substitute Trustee, as herein provided, either as to the legality
of his appointment or otherwise, or of the contingencies which brought about the
failure or inability of the Trustee or any Successor or Substitute Trustee to
act or of its removal, as the case may be; all prerequisites of said sale shall
be presumed to have been performed; and any sale made under the powers granted
herein shall be a perpetual bar against the Lessee, its heirs and assigns and
anyone who claims by, through or under the Lessee.
ARTICLE XXVI
MISCELLANEOUS
Section 26.1. Severability; Perpetuities. If any term or provision of
this Master Lease or any application thereof shall be declared invalid or
unenforceable, the remainder of this Master Lease and any other application of
such term or provision shall not be affected thereby. If any right or option of
the Lessee provided in this Master Lease, including any right or option
described in Article XIV, XV, XVIII or XX, would, in the absence of the
limitation imposed by this sentence, be invalid or unenforceable as being in
violation of the rule against perpetuities or any other rule of law relating to
the vesting of an interest in or the suspension of the power of alienation of
property, then such right or option shall be exercisable only during the period
which shall end twenty-one (21) years after the date of death of the last
survivor of the descendants of John F. Kennedy, the former President of the
United States, Henry Ford, the deceased automobile manufacturer, and John D.
Rockefeller, the founder of the Standard Oil Company, known to be alive on the
date of the execution, acknowledgment and delivery of this Master Lease.
Section 26.2. Amendments and Modifications. Subject to the
requirements, restrictions and conditions set forth in Section 15.5 of the
Participation Agreement, neither this Master Lease nor any provision hereof may
be amended, waived, discharged or terminated except by an instrument in writing
in recordable form signed by the parties hereto.
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Section 26.3. No Waiver. No failure by the Agent Lessor, the Lessee,
the Administrative Agent or any Participant 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 Master Lease, and this Master Lease
shall continue in full force and effect with respect to any other then existing
or subsequent default.
Section 26.4. Notices. All notices, demands, requests, consents,
approvals and other communications hereunder shall be in writing and directed to
the address set forth on the signature page of the Participation Agreement, and
deemed received in accordance with the provisions of Section 15.3 of the
Participation Agreement. The Guarantor may designate a new address or facsimile
number for receipt of notices hereunder by giving notice of such change to the
Administrative Agent in the manner and in accordance with the provisions of
Section 15.3 of the Participation Agreement.
Section 26.5. Successors and Assigns. All the terms and provisions of
this Master Lease shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 26.6. Headings and Table of Contents. The headings and table of
contents in this Master Lease are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
Section 26.7. Counterparts. This Master Lease may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same instrument.
SECTION 26.8. GOVERNING LAW. THIS MASTER LEASE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS; provided that the
creation of the deed of trust contemplated by Section 25.2 hereof, the
perfection of the Lien and security interest in the Property and the rights and
remedies of the Trustee and the Agent Lessor with respect to the Property, as
provided herein and by the laws of the State of Texas, shall be governed by and
construed in accordance with the internal laws of the State of Texas without
regard to principles of conflicts of laws.
Section 26.9. Original Lease. The single executed original of this
Master Lease marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on
the signature page thereof and containing the receipt thereof of Bank of
Montreal, as Administrative Agent for the Lenders therefor on or following the
signature page thereof shall be the Original Executed Counterpart of this Master
Lease (the "Original Executed Counterpart"). To the extent that this Master
Lease constitutes chattel paper, as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction, no security
interest in
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this Master Lease may be created through the transfer or possession of any
counterpart other than the Original Executed Counterpart.
Section 26.10. Time of Essence. With respect to each of the Lessee's
and the Agent Lessor's obligations hereunder, time is of the essence, and each
such party hereby acknowledges and confirms the foregoing.
Section 26.11. Memorandum of Lease. On the Acquisition Date, the Lessee
and the Agent Lessor agree to execute the Memorandum of Lease attached hereto as
Exhibit A and to cause the same to be recorded in the office of the Recorder for
Bowie County, Texas.
Section 26.12. The Trustee. The Trustee is appointed hereunder, and
joins in this Master Lease, solely for the purpose of effecting the intentions
of the parties set forth in Section 25.2 hereof in the State of Texas. The
Trustee shall at all times be under the control of, and act pursuant to the
directions of, the Agent Lessor, and the Lessee shall have no power to control
or direct the Trustee. The Trustee may be removed or replaced in the discretion
of the Agent Lessor. The Lessee shall pay all fees and expenses of the Trustee
in connection with this Master Lease and the transactions contemplated hereby,
including all fees and expenses incurred in the exercise of any remedies
hereunder.
Section 26.13. Usury. It is the intent of Lessee and the Participants
and all other parties to the Operative Documents to conform to and contract in
strict compliance with applicable usury law from time to time in effect. All
agreements between the Participants and Lessee (or any other party liable with
respect to the indebtedness under the Operative Documents) 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 shall the interest contracted
for, charged or received under the Operative Documents exceed the maximum rate
of interest lawfully permitted to be charged under Applicable Law (the "Maximum
Rate"). If, from any possible construction of any Operative Document, interest
would otherwise be payable in excess of the Maximum Rate, any such construction
shall be subject to the provisions of this paragraph and such Operative Document
shall be automatically reformed and the interest payable shall be automatically
reduced to the Maximum Rate, without the necessity of execution of any amendment
of new document. If the holder hereof shall ever receive anything of value which
is characterized as interest under Applicable Law and which would apart from
this provision be in excess of the Maximum Rate, an amount equal to the amount
which would have been excessive interest shall, without penalty, be applied as a
credit against the then unpaid amounts due under the Operative Documents or
refunded promptly to the party paying such amount. The right to accelerate
payment of any indebtedness created under the Operative Documents does not
include the right to accelerate any interest which has not otherwise accrued on
the date of such acceleration, and the Participants do not intend to charge or
receive any unearned interest in the event of acceleration.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Non-Liability of Trustee. The Trustee shall not be liable for any error
of judgment or act done by Trustee in good faith, or be otherwise responsible or
accountable to Grantor under any circumstances whatsoever, nor shall Trustee be
personally liable, in case of entry by him or her or anyone entering by virtue
of the powers herein granted upon the Mortgaged Premises, for debts contracted
or liability or damages incurred in the management or operation of the Mortgaged
Premises, or otherwise. The Trustee shall have the right to rely on any
instrument, document or signature authorizing or supporting any action taken or
proposed to be taken by the Trustee hereunder, believed by the Trustee in good
faith to be genuine. Trustee shall be entitled to reimbursement for expenses
incurred by him or her in the performance of his or her duties hereunder and to
reasonable compensation for such of his or her services hereunder as shall be
rendered. Grantor will, from time to time, pay the compensation due to Trustee
hereunder and reimburse Trustee for, and save him or her harmless from and
against, any and all liability and expenses which may be incurred by him or her
in the performance of his or her duties hereunder. For purposes of this
paragraph the term "Trustee" shall also include any person appointed substitute
trustee pursuant to the provisions of this Deed of Trust.
IN WITNESS WHEREOF, the parties have caused this Master Lease to be
duly executed and delivered as of the date first above written.
ALUMAX MILL PRODUCTS, INC., a Delaware
corporation, as Lessee
By: /s/ Marc Crown
------------------------------------
Marc Crown
Its Assistant Treasurer
BMO LEASING (U.S.), INC., a Delaware
corporation, as Agent Lessor
By: /s/ Ernest C. Cechetto
------------------------------------
Ernest C. Cechetto
Its Managing Director
/s/ Ward Williford
----------------------------------------
Ward Williford, a Deed of Trust Trustee
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THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART, Receipt of this
original counterpart of the foregoing Lease is hereby acknowledged as of the
date hereof.
BANK OF MONTREAL, as Administrative
Agent for the Lenders
By: /s/ Ernest C. Cechetto
------------------------------------
Ernest C. Cechetto
Its Managing Director
-43-
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STATE OF GEORGIA )
) SS.
COUNTY OF FULTON )
I, the undersigned, a Notary Public in and for said County, in the
State aforesaid, do hereby certify that Marc Crown, Assistant Treasurer of
ALUMAX MILL PRODUCTS, a Delaware corporation as Lessee aforesaid, who is
personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such Assistant Treasurer, appeared before me this day in
person and acknowledged that he signed and delivered the said instrument as his
own free and voluntary act as the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
Given under my hand and notarial seal, this 25th day of November, 1997.
/s/ Cynthia A. Jordan
-----------------------------------
Notary Public
Cynthia A. Jordan
-----------------------------------
(TYPE OR PRINT NAME)
(SEAL)
Commission Expires:
Notary Public, Gwinnett County, Georgia
My Commission Expires September 8, 1998
- ---------------------------------------
50
STATE OF GEORGIA )
) SS.
COUNTY OF FULTON )
I, the undersigned, a Notary Public in and for said County, in the
State aforesaid, do hereby certify that Ernest C. Cechetto, Managing Director of
BANK OF MONTREAL, a Canadian chartered bank, as Administrative Agent aforesaid,
who is personally known to me to be the same person whose name is subscribed to
the foregoing instrument as such Managing Director, appeared before me this day
in person and acknowledged that he signed and delivered the said instrument as
his own free and voluntary act and as the free and voluntary act and deed of
said Administrative Agent for the uses and purposes therein set forth.
Given under my hand and notarial seal, this 25th day of November, 1997.
/s/ Cynthia A. Jordan
-----------------------------------
Notary Public
Cynthia A. Jordan
-----------------------------------
(TYPE OR PRINT NAME)
(SEAL)
Commission Expires:
Notary Public, Gwinnett County, Georgia
My Commission Expires September 8, 1998
- ---------------------------------------
-2-
51
STATE OF GEORGIA )
) SS.
COUNTY OF FULTON )
I, the undersigned, a Notary Public in and for said County, in the
State aforesaid, do hereby certify that Ernest C. Cechetto, Managing Director of
BMO LEASING (U.S.) INC., a Delaware corporation, as Agent Lessor aforesaid, who
is personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such Managing Director, appeared before me this day in
person and acknowledged that he signed and delivered the said instrument as his
own free and voluntary act and as the free and voluntary act and deed of said
Agent Lessor for the uses and purposes therein set forth.
Given under my hand and notarial seal, this 25th day of November, 1997.
/s/ Cynthia A. Jordan
-----------------------------------
Notary Public
Cynthia A. Jordan
-----------------------------------
(TYPE OR PRINT NAME)
(SEAL)
Commission Expires:
Notary Public, Gwinnett County, Georgia
My Commission Expires September 8, 1998
- ---------------------------------------
-2-
52
STATE OF TEXAS )
) SS.
COUNTY OF DALLAS )
This instrument was acknowledged before me on November 24, 1997, by
Ward Williford, as Trustee aforesaid, who, being duly sworn, did say that he
executed this instrument as his free act and deed on behalf of said corporation.
/s/ Gwen G. Behrens
--------------------------------------------
Notary Public
--------------------------------------------
Print Name of Notary here
(SEAL)
Commission Expires: --------------------------
GWEN G. BEHRENS
Notary Public
State of Texas
Commission Expires 8-18-98
- --------------------------- --------------------------
53
SCHEDULE I
BEING part of the George Brinlee Headright Survey, A-18, and being a portion of
a certain 21.255 acre tract of land described as Tract No. 2 and a portion of a
certain 69.036 acre tract of land described as Tract No. 3, all in the Deed from
R.P. Cheatham and wife, Clara Mae Cheatham to Texarkana Industrial Foundation,
Inc., dated August 25, 1972, recorded in Volume 549, pages 768-772 of the Deed
Records of Bowie County, Texas and being more fully described as follows:
BEGINNING at an iron pipe for corner at the northwest corner of said 21.255 acre
tract, said point being on the south right of way line of Interstate Highway No.
30;
THENCE South 00 degrees 39 minutes 34 seconds East with the east right of way
line of an old public road, same being a fence line, and being the west line of
said 21.255 acre tract, 468.53 feet to an angle point;
THENCE South 00 degrees 40 minutes 34 seconds West with the east right of way
line of said public road, same being a fence line, and being the west line of
said 21.255 acre tract, 215.18 feet to an angle point;
THENCE South 02 degrees 31 minutes 22 seconds West with the east right of way
line of said public road, same being the west line of said 21.255 acre tract and
being along a fence line, 515.51 feet to an angle point;
THENCE South 03 degrees 27 minutes 35 seconds West with the east right of way
line of said public road, same being the west line of said 21.255 acre tract
and being along a fence line, 287.11 feet to an iron pipe for corner on the
north right of way line of Brinlee Road, said point being in a curve to the
left;
THENCE southeasterly with the right of way line, same being the arc of a curve
having a radius of 522.96 feet through a central angle of 17 degrees 24 minutes
30 seconds for a distance of 158.89 feet to a point at the end of said curve;
THENCE North 88 degrees 18 minutes 18 seconds East with the north right of way
line of said Brinlee Road, 668.48 feet to an iron pipe for corner;
THENCE North 89 degrees 27 minutes 30 seconds East along the north right of way
line of said Brinlee Road, same being a fence line, 826.09 feet to a point for
corner;
THENCE North 00 degrees 32 minutes 30 seconds, 1336.21 feet to a point for
corner on the north right of way line of Interstate Highway No. 30;
THENCE North 82 degrees 15 minutes 10 seconds West with the south right of way
line of said Interstate Highway No. 30, 796.09 feet to an angle point in the
said right of way line;
THENCE North 85 degrees 07 minutes 10 seconds West, continuing with said
Interstate Highway No. 30 right of way line, 799.16 feet to the POINT OF
BEGINNING and containing 52.728 acres of land, more or less.
54
SCHEDULE II
DESCRIPTION OF PROPERTY
ITEM # DESCRIPTION RCN EUL FMV
- ------ ----------- --- --- ---
1 SCALPER (FOUNDATION) 194,550 40 121,267
2 SCALPER (EQUIPMENT) 3,996,099 25 2,490,855
3 PREHEAT FURNACES (FOUNDATION) 526,265 40 328,032
4 PREHEAT FURNACES (ELECTRICAL) 590,465 25 368,050
5 PREHEAT FURNACES (MAIN UNIT) 3,654,733 18 2,278,074
6 PREHEAT FURNACES (CHARGING EQUIP) 773,988 15 482,443
7 PREHEAT FURNACES (REFRACTORY) 417,436 6 260,197
8 HOT MILL (FOUNDATION) 3,840,677 40 2,393,977
9 HOT MILL (PULPIT) 126,973 35 79,145
10 HOT MILL (MAIN EQUIPMENT) 38,496,775 33 23,995,870
11 HOT MILL (SWITCHGEAR) 34,655 30 21,601
12 HOT MILL (FEEDBACK DEVICE) 51,061 20 31,827
13 ROLL GRINDER (FOUNDATION) 124,162 40 77,393
14 ROLL GRINDER (MAIN UNIT) 1,298,741 25 809,534
15 COLD MILL (FOUNDATION) 2,211,455 40 1,378,447
16 COLD MILL (MAIN UNIT) 22,212,926 33 13,845,796
17 COLD MILL (SWITCHGEAR) 161,935 30 100,938
18 EDGE TRIM LINE (FOUNDATION) 562,961 40 350,906
19 EDGE TRIM LINE (MAIN UNIT) 3,118,013 18 1,943,525
20 TENSION LEVELLER (FOUNDATION) 756,776 40 471,715
21 TENSION LEVELLER 7,410,632 18 4,619,207
22 TENSION LEVELLER (PC CONTROL) 569,506 12 354,986
23 ANNEALING FURNACES (FOUNDATION) 313,149 40 195,193
24 ANNEALING FURNACES (SHELL) 641,623 25 399,937
25 ANNEALING FURNACES (CONTROL ZONE) 991,144 20 617,801
26 ANNEALING FURNACES (MECHANICAL) 2,159,229 18 1,345,894
27 ANNEALING FURNACES (ANALYZER) 60,455 12 37,683
28 ANNEALING FURNACES (REFRACTORY) 745,383 6 464,613
29 COATING LINE (FOUNDATION) 288,648 40 179,920
30 COATING LINE (EQUIPMENT) 5,414,829 12 3,375,180
31 COATING LINE (USED) 9,887,849 12 6,163,310
32 CRANES 2,824,259 25 1,760,422
33 CRANES 185,943 20 115,902
34 MOBILE EQUIPMENT 259,953 22 162,034
35 PACKING LINE EQUIPMENT 182,530 18 113,775
36 DATA PROCESSING 463,468 8 288,890
37 MISC PURCHASES (TANKS) 218,262 20 136,047
38 MISC PURCHASES 56,459 18 35,192
39 MISC PURCHASES (MISC) 1,804,835 12 1,124,992
40 MISC PURCHASES (TEL) 228,627 10 142,508
41 PLANT GROUNDS 235,677 40 134,261
Page 1
55
ITEM # DESCRIPTION RCN EUL FMV
- ------ ----------- --- --- ---
42 PLANT GROUNDS 62,094 35 35,374
43 PLANT GROUNDS 57,375 18 32,686
44 PLANT GROUNDS 535,103 12 304,840
45 BUILDINGS AND FACILITIES 4,431,437 40 2,524,522
46 BUILDINGS AND FACILITIES 1,178,335 30 671,279
47 BUILDINGS AND FACILITIES 19,145 25 10,907
48 BUILDINGS AND FACILITIES 45,904 22 26,151
49 ELECTRICAL 1,295,473 30 738,011
50 ELECTRICAL 7,617 20 4,339
51 NAT GAS DIST 106,955 30 60,931
52 CITY WATER SYSTEM 48,938 30 27,879
53 COOLING WATER SYSTEM 263,031 35 149,845
54 COOLING WATER SYSTEM 89,594 25 51,040
55 COOLING WATER SYSTEM 447,958 20 255,195
56 COOLING WATER SYSTEM 86,216 12 49,116
57 COMPRESSED AIR SYSTEM 239,031 30 136,172
58 COMPRESSED AIR SYSTEM 6,939 25 3,953
59 COMPRESSED AIR SYSTEM 143,942 15 82,001
60 FIRE PROTECTION SYSTEM 457,633 30 260,706
61 SANITARY SEWER SYSTEM 71,604 30 40,792
NON SEVERABLE IMPROVEMENTS
62 SCALPER ADDITIONS 803,378 500,763
63 PREHEAT ADDITIONS 2,496,269 1,555,978
64 HOT MILL ADDITIONS 5,334,751 3,325,265
65 ROLL SHOP ADDITIONS 167,801 104,594
66 COLD MILL ADDITIONS 4,029,102 2,511,426
67 EDGE TRIM LINE ADDITIONS 194,506 121,240
68 LEVELLER ADDITIONS 1,442,483 899,131
69 ANNEALING ADDITIONS 4,886,674 3,045,969
70 WASTE WATER IMPROVEMENTS 438,455 273,298
71 PACKOUT ADDITIONS 299,280 186,548
72 PAINT/COATING LINE ADDITIONS 11,853,319 7,388,429
Page 2
56
SCHEDULE III
DESCRIPTION OF EXCLUDED EQUIPMENT
71 ROLL SHOP 2,051,537 1,313,001
72 SCALPER 105,070 67,246
73 PREHEAT 3,399,398 2,175,644
74 HOT MILL 3,757,306 2,404,707
75 COLD MILL 3,550,296 2,144,218
76 ANNEALERS 4,505,015 2,883,248
77 FINISHING 363,931 232,919
78 EDGE TRIM LINE 208,370 133,359
79 PRO ECO LEVELLER 1,423,350 910,956
80 PAINT/COAT LINE 169,543 108,509
81 PACKOUT 292,476 187,187
82 HERR-VOSS LEVELLER 2,500,000 1,600,021
83 STAMCO SLITTER 1,250,000 800,011
84 STAMCO HVY G LEVELLER 2,500,000 1,600,021
85 CIN SLITTER 2,000,000 1,280,017
86 HUNTER LEVELLER 3,000,000 1,920,025
57
SCHEDULE IV
FIXED RENT PAYMENTS
FIXED RENT OUTSTANDING OUTSTANDING
PAYMENT DATE LOANS LESSOR AMOUNTS BALANCE DUE
- ----------------- -------------- -------------- --------------
November 24, 1998 $81,109,802.57 $14,878,129.61 $95,987,932.19
November 24, 1999 $80,290,511.64 $14,727,845.48 $95,018,357.11
November 24, 2000 $79,471,220.70 $14,577,561.34 $94,048,782.04
November 24, 2001 $78,651,929.77 $14,427,277.20 $93,079,206.97
November 24, 2002 $77,832,638.83 $14,276,993.06 $92,109,631.90