EXHIBIT 10.15
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MASTER LEASE AGREEMENT
Dated as of June 22, 2001
between
ATLANTIC FINANCIAL GROUP, LTD., as Lessor,
and
HUGHES SUPPLY, INC.
AND
CERTAIN SUBSIDIARIES OF HUGHES SUPPLY, INC., as Lessees
___________________________________________
[OPERATING LEASE]
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TABLE OF CONTENTS
(Lease Agreement)
Page
ARTICLE I. DEFINITIONS........................................................ 1
ARTICLE II. LEASE OF LEASED PROPERTY........................................... 1
2.1 Acceptance and Lease of Property................................... 1
2.2 Acceptance Procedure............................................... 2
ARTICLE III. RENT............................................................... 2
3.1 Basic Rent......................................................... 2
3.2 Supplemental Rent.................................................. 3
3.3 Method of Payment.................................................. 3
3.4 Late Payment....................................................... 3
3.5 Net Lease; No Setoff, Etc.......................................... 3
3.6 Certain Taxes...................................................... 5
3.7 Utility Charges.................................................... 5
ARTICLE IV. WAIVERS............................................................ 5
ARTICLE V. LIENS; EASEMENTS; PARTIAL CONVEYANCES.............................. 6
ARTICLE VI. MAINTENANCE AND REPAIR;ALTERATIONS, MODIFICATIONS AND ADDITIONS.... 8
6.1 Maintenance and Repair; Compliance With Law........................ 8
6.2 Alterations........................................................ 9
6.3 Title to Alterations............................................... 9
ARTICLE VII. USE................................................................ 9
ARTICLE VIII. INSURANCE.......................................................... 9
ARTICLE IX. ASSIGNMENT AND SUBLEASING.......................................... 11
ARTICLE X. LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE.......................... 11
10.1 Event of Loss. .................................................... 11
10.2 Event of Taking.................................................... 12
10.3 Casualty........................................................... 13
10.4 Condemnation....................................................... 13
10.5 Verification of Restoration and Rebuilding......................... 13
10.6 Application of Payments............................................ 14
10.7 Prosecution of Awards.................................................. 15
10.8 Application of Certain Payments Not Relating to an Event of Taking..... 15
10.9 Other Dispositions..................................................... 15
10.10 No Rent Abatement...................................................... 16
ARTICLE XI. INTEREST CONVEYED TO LESSEES........................................... 16
ARTICLE XII. EVENTS OF DEFAULT...................................................... 16
ARTICLE XIII. ENFORCEMENT............................................................ 20
13.1 Remedies............................................................... 20
13.2 Remedies Cumulative; No Waiver; Consents............................... 21
13.3 Purchase Upon an Event of Default...................................... 22
13.4 Limitation on Liability................................................ 22
ARTICLE XIV. SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL................... 23
14.1 Lessee's Option to Purchase............................................ 23
14.2 Determination of Purchase Price........................................ 23
14.3 Purchase Option on Lease Termination Date.............................. 23
14.4 Purchase Procedure..................................................... 23
14.5 Surrender.............................................................. 24
ARTICLE XV. LESSEE'S EQUIPMENT..................................................... 26
ARTICLE XVI. RIGHT TO PERFORM FOR LESSEE............................................ 27
ARTICLE XVII. MISCELLANEOUS.......................................................... 27
17.1 Reports................................................................ 27
17.2 Binding Effect; Successors and Assigns; Survival....................... 27
17.3 Quiet Enjoyment........................................................ 27
17.4 Notices................................................................ 28
17.5 Severability........................................................... 29
17.6 Amendment; Complete Agreements......................................... 29
17.7 Construction........................................................... 29
17.8 Headings............................................................... 29
17.9 Counterparts........................................................... 29
17.10 GOVERNING LAW.......................................................... 30
17.11 Discharge of Lessee's Obligations by its Subsidiaries or Affiliates.... 30
17.12 Liability of Lessor Limited............................................ 30
17.13 Estoppel Certificates.................................................. 30
17.14 No Joint Venture....................................................... 31
17.15 No Accord and Satisfaction............................................. 31
17.16 No Merger.............................................................. 31
17.17 Survival .............................................................. 31
17.18 Chattel Paper.......................................................... 31
17.19 Time of Essence........................................................ 31
17.20 Recordation of Lease................................................... 32
17.21 Investment of Security Funds........................................... 32
17.22 Ground Leases.......................................................... 32
17.23 Land and Building...................................................... 32
17.24 Joint and Several...................................................... 33
17.25 IDB Documentation...................................................... 33
APPENDICES AND EXHIBITS
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APPENDIX A Defined Terms
EXHIBIT A Lease Supplement
(iv)
THIS MASTER LEASE AGREEMENT (as from time to time amended or supplemented,
this "Lease"), dated as of June 22, 2001, is among ATLANTIC FINANCIAL GROUP,
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LTD., a Texas limited partnership (together with its successors and assigns
hereunder, the "Lessor"), as Lessor, and HUGHES SUPPLY, INC., a Florida
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corporation ("Hughes"), and certain Subsidiaries of Hughes hereafter parties
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hereto (individually, with its successors and permitted assigns hereunder, each
a "Lessee" and collectively, the "Lessees"), as Lessees.
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PRELIMINARY STATEMENT
A. Lessor will purchase, or acquire a leasehold interest in, from one or
more third parties designated by the Construction Agent, on a Closing Date,
certain parcels of real property to be specified by the Construction Agent,
together with any improvements thereon.
B. Lessor desires to lease to each Lessee, and each Lessee desires to
lease from Lessor, certain of such properties as described on the Lease
Supplement(s) to which such Lessee is a party.
C. If applicable, the Construction Agent will, on behalf of Lessor, cause
to be constructed, certain improvements on such parcels of real property which
as constructed will be the property of Lessor and will become part of such
property subject to the terms of this Lease.
In consideration of the mutual agreements herein contained and other good
and valuable consideration, receipt of which is hereby acknowledged, Lessor and
Lessees hereby agree as follows:
ARTICLE I.
DEFINITIONS
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Terms used herein and not otherwise defined shall have the meanings
assigned thereto in Appendix A hereto for all purposes hereof.
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ARTICLE II.
LEASE OF LEASED PROPERTY
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Section II.1 Acceptance and Lease of Property. On each Closing Date for
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Land, Lessor, subject to the satisfaction or waiver of the conditions set forth
in Section 3 of the Master Agreement, hereby agrees to accept delivery on such
Closing Date of such Land pursuant to the terms of the Master Agreement,
together with any Building or Buildings and other improvements thereon, and
simultaneously to lease to the related Lessee hereunder for the Lease Term,
Lessor's interest in such Land and in such Building or Buildings and other
improvements, together with
any Building which thereafter may be constructed thereon pursuant to the
Construction Agency Agreement, and such related Lessee hereby agrees, expressly
for the direct benefit of Lessor, commencing on such Closing Date for the Lease
Term, to lease from Lessor Lessor's interest in such Land to be delivered on
such Closing Date, together with, in the case of Land, Lessor's interest in the
Building or Buildings and other improvements thereon and/or which thereafter may
be constructed thereon pursuant to the Construction Agency Agreement. This Lease
shall be in full force and effect with respect to each Leased Property on the
Closing Date therefor; provided, however, that, notwithstanding anything herein
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to the contrary, with respect to any Leased Property subject to the Construction
Agency Agreement, the Lessee shall make payments hereunder with respect to such
Leased Property (other than any payments due under Section 14.1 hereof or under
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Section 3.3, 3.4 or Article V of the Construction Agency Agreement) during the
Construction Term therefor from the proceeds of Fundings pursuant to, and
subject to the terms and conditions of, the Master Agreement.
Section II.2 Acceptance Procedure. Lessor hereby authorizes one or more
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employees of the related Lessee, to be designated by such Lessee, as the
authorized representative or representatives of Lessor to accept delivery on
behalf of Lessor of that Leased Property identified on the applicable Funding
Request. Each Lessee hereby agrees that such acceptance of delivery by such
authorized representative or representatives and the execution and delivery by
such Lessee on each Closing Date for property to be leased hereunder of a Lease
Supplement in substantially the form of Exhibit A hereto (appropriately
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completed) shall, without further act, constitute the irrevocable acceptance by
such Lessee of that Leased Property which is the subject thereof for all
purposes of this Lease and the other Operative Documents on the terms set forth
therein and herein, and that such Leased Property, together with, in the case of
Land, any and all Buildings and other improvements thereon and/or to be
constructed thereon pursuant to the Construction Agency Agreement, shall be
deemed to be included in the leasehold estate of this Lease and shall be subject
to the terms and conditions of this Lease as of such Closing Date. The demise
and lease of each parcel of Land and each Building pursuant to this Section 2.2
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shall include any additional right, title or interest in each such parcel of
Land and each such Building which may at any time be acquired by Lessor, the
intent being that all right, title and interest of Lessor in and to each such
parcel of Land and each such Building shall at all times be demised and leased
to the related Lessee hereunder.
ARTICLE III.
RENT
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Section III.1 Basic Rent . Beginning with and including the first
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Payment Date occurring after the Initial Closing Date, each Lessee shall pay to
the Agent the Basic Rent for the Leased Properties subject to a Lease Supplement
to which such Lessee is a party, in installments, payable in arrears on each
Payment Date during the Lease Term, provided that during the Construction Term
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for a Leased Property, Basic Rent with respect to such Leased Property shall be
capitalized pursuant to Section 2.3(c) of the Master Agreement.
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Section III.2 Supplemental Rent. Each Lessee shall pay to the Agent, or
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to whomever shall be entitled thereto as expressly provided herein or in any
other Operative Document, any and all Supplemental Rent on the date the same
shall become due and payable and in the event of any failure on the part of such
Lessee to pay any Supplemental Rent, the Agent shall have all rights, powers and
remedies provided for herein or by law or in equity or otherwise in the case of
nonpayment of Basic Rent. All Supplemental Rent to be paid pursuant to this
Section 3.2 shall be payable in the type of funds and in the manner set forth in
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Section 3.3.
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Section III.3 Method of Payment. Basic Rent shall be paid to the Agent,
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and Supplemental Rent (including amounts due under Article XIV hereof) shall be
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paid to the Agent (or to such Person as may be entitled thereto) or, in each
case, to such Person as the Agent (or such other Person) shall specify in
writing to the related Lessee, and at such place as the Agent (or such other
Person) shall specify in writing to the related Lessee. Each payment of Rent
(including payments under Article XIV hereof) shall be made by the Lessees prior
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to 12:00 p.m. (noon) Atlanta, Georgia time at the place of payment in funds
consisting of lawful currency of the United States of America which shall be
immediately available on the scheduled date when such payment shall be due,
unless such scheduled date shall not be a Business Day, in which case such
payment shall be made on the next succeeding Business Day. The Agent agrees, at
a Lessee's request, to arrange for automated clearing house debits from such
Lessee's accounts for payments due hereunder.
Section III.4 Late Payment. If any Basic Rent shall not be paid on the
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date when due, the related Lessee shall pay to the Agent, as Supplemental Rent,
interest (to the maximum extent permitted by law) on such overdue amount from
and including the due date thereof to but excluding the Business Day of payment
thereof at the Overdue Rate.
Section III.5 Net Lease; No Setoff, Etc. This Lease is a net lease and
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notwithstanding any other provision of this Lease, each Lessee shall pay all
Basic Rent and Supplemental Rent, and all costs, charges, assessments and other
expenses foreseen or unforeseen, for which such Lessee is or shall become liable
by reason of such Lessee's estate, right, title or interest in the Leased
Properties, or that are connected with or arise out of the acquisition (except
the initial costs of purchase by Lessor of its interest in any Leased Property,
which costs, subject to the terms of the Master Agreement, shall be funded by
the Funding Parties pursuant to the Master Agreement), construction (except
costs to be funded under the Construction Agency Agreement), installation,
possession, use, occupancy, maintenance, ownership, leasing, repairs and
rebuilding of, or addition to, the Leased Properties or any portion thereof, and
any other amounts payable hereunder and under the other Operative Documents
without counterclaim, setoff, deduction or defense and without abatement,
suspension, deferment, diminution or reduction, and each Lessee's obligation to
pay all such amounts throughout the Lease Term, including the Construction Term,
is absolute and unconditional. The obligations and liabilities of each Lessee
hereunder shall in no way be released, discharged or otherwise affected for any
reason, including without limitation: (a) any defect in the condition,
merchantability, design, quality or fitness for
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use of any Leased Property or any part thereof, or the failure of any Leased
Property to comply with all Applicable Law, including any inability to occupy or
use any Leased Property by reason of such non-compliance; (b) any damage to,
removal, abandonment, salvage, loss, contamination of or Release from, scrapping
or destruction of or any requisition or taking of any Leased Property or any
part thereof; (c) any restriction, prevention or curtailment of or interference
with any use of any Leased Property or any part thereof including eviction; (d)
any defect in title to or rights to any Leased Property or any Lien on such
title or rights or on any Leased Property; (e) any change, waiver, extension,
indulgence or other action or omission or breach in respect of any obligation or
liability of or by Lessor, the Agent or any Lender; (f) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceedings relating to any Lessee, Lessor, any Lender, the Agent or
any other Person, or any action taken with respect to this Lease by any trustee
or receiver of any Lessee, Lessor, any Lender, the Agent, any Ground Lessor or
any other Person, or by any court, in any such proceeding; (g) any claim that
any Lessee has or might have against any Person, including without limitation,
Lessor, any vendor, manufacturer, contractor of or for any Leased Property or
any part thereof, the Agent, any Ground Lessor, any Governmental Authority, or
any Lender; (h) any failure on the part of Lessor to perform or comply with any
of the terms of this Lease, any other Operative Document, any applicable IDB
Documentation or of any other agreement; (i) any invalidity or unenforceability
or illegality or disaffirmance of this Lease against or by any Lessee or any
provision hereof or any of the other Operative Documents or any provision of any
thereof whether or not related to the Transaction; (j) the impossibility or
illegality of performance by any Lessee, Lessor or both; (k) any action by any
court, administrative agency or other Governmental Authority; (l) any
restriction, prevention or curtailment of or interference with the Construction
or any use of any Leased Property or any part thereof; or (m) any other
occurrence whatsoever, whether similar or dissimilar to the foregoing, whether
or not any Lessee shall have notice or knowledge of any of the foregoing. Except
as specifically set forth in Articles XIV or X of this Lease, this Lease shall
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be noncancellable by each Lessee in any circumstance whatsoever and each Lessee,
to the extent permitted by Applicable Law, waives all rights now or hereafter
conferred by statute or otherwise to quit, terminate or surrender this Lease, or
to any diminution, abatement or reduction of Rent payable by such Lessee
hereunder, provided that each Lessee shall retain the right to pursue a cause of
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action against Lessor for damages for a breach by Lessor of its obligations
under the Operative Documents. Each payment of Rent made by a Lessee hereunder
shall be final and such Lessee shall not seek or have any right to recover all
or any part of such payment from Lessor, the Agent, any Lender or any party to
any agreements related thereto for any reason whatsoever. Each Lessee assumes
the sole responsibility for the condition, use, operation, maintenance, and
management of the Leased Properties leased by it and Lessor shall have no
responsibility in respect thereof and shall have no liability for damage to the
property of either any Lessee or any subtenant of any Lessee on any account or
for any reason whatsoever, other than solely by reason of Lessor's willful
misconduct or gross negligence (other than gross negligence or willful
misconduct imputed to Lessor as a result of any action or inaction on the part
of a Lessee).
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Section III.6 Certain Taxes. Without limiting the generality of Section
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3.5, each Lessee agrees to pay when due all real estate taxes, personal property
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taxes, gross sales taxes, including any sales or lease tax imposed upon the
rental payments hereunder or under a sublease, occupational license taxes, water
charges, sewer charges, assessments of any nature and all other governmental
impositions and charges of every kind and nature whatsoever (the "tax(es)"),
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when the same shall be due and payable without penalty or interest; provided,
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however, that this Section shall not apply to any of the taxes covered by the
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exclusion described in Section 7.4(b) of the Master Agreement. It is the
intention of the parties hereto that, insofar as the same may lawfully be done,
Lessor shall be, except as specifically provided for herein, free from all
expenses in any way related to the Leased Properties and the use and occupancy
thereof. Any tax relating to a fiscal period of any taxing authority falling
partially within and partially outside the Lease Term, shall be apportioned and
adjusted between Lessor and the related Lessee. Each Lessee covenants to
furnish Lessor and the Agent, upon the Agent's written request, within forty-
five (45) days after the last date when any tax must be paid by such Lessee as
provided in this Section 3.6, copies of official receipts of the appropriate
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taxing, authority or other proof satisfactory to Lessor, evidencing the payment
thereof.
So long as no Event of Default has occurred and is continuing, the related
Lessee may defer payment of a tax so long as the validity or the amount thereof
is contested by such Lessee with diligence and in good faith; provided, however,
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that such Lessee shall pay the tax in sufficient time to prevent delivery of a
tax deed. Such contest shall be at the related Lessee's sole cost and expense.
Each Lessee covenants to indemnify and save harmless Lessor, the Agent and each
Lender from any actual and reasonable costs or expenses incurred by Lessor, the
Agent or any Lender as a result of such contest, which indemnification shall
survive the termination of this Lease; provided that neither the Agent nor any
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Lender shall be entitled to claim any indemnity against any Lessee pursuant to
this sentence with respect to any Construction Land Interest during the
Construction Term therefor.
Section III.7 Utility Charges. Each Lessee agrees to pay or cause to be
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paid as and when the same are due and payable all charges for gas, water, sewer,
electricity, lights, heat, power, telephone or other communication service and
all other utility services used, rendered or supplied to, upon or in connection
with the Leased Properties leased by it.
ARTICLE IV.
WAIVERS
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During the Lease Term, Lessor's interest in the Leased Properties,
including the Equipment, the Building(s) (whether or not completed) and the
Land, is demised and let by Lessor "AS IS" subject to (a) the rights of any
parties in possession thereof, (b) the state of the title thereto existing at
the time Lessor acquired its interest in the Leased Properties, (c) any state of
facts which an accurate survey or physical inspection might show (including the
survey delivered on the related Closing Date), (d) all Applicable Law, and (e)
any violations of Applicable Law which may exist upon or subsequent to the
commencement of the Lease Term. EACH LESSEE ACKNOWLEDGES THAT, ALTHOUGH LESSOR
WILL OWN AND HOLD TITLE TO THE LEASED PROPERTIES, LESSOR IS NOT A MANUFACTURER
OF, OR DEALER IN ANY LEASED PROPERTY, AND IS NOT RESPONSIBLE FOR THE DESIGN,
DEVELOPMENT, BUDGETING AND CONSTRUCTION OF THE BUILDING(S) OR ANY ALTERATIONS.
NEITHER LESSOR, THE AGENT NOR ANY LENDER HAS MADE OR SHALL BE DEEMED TO HAVE
MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO
HAVE ANY LIABILITY WHATSOEVER AS TO THE VALUE, MERCHANTABILITY, TITLE,
HABITABILITY, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE LEASED
PROPERTIES (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTIES (OR ANY
PART THEREOF), ALL SUCH WARRANTIES BEING HEREBY DISCLAIMED, AND NEITHER LESSOR,
THE AGENT NOR ANY LENDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREIN OR THE FAILURE OF ANY LEASED PROPERTY, OR ANY PART THEREOF, TO
COMPLY WITH ANY APPLICABLE LAW, except that Lessor hereby represents and
warrants that each Leased Property is and shall be free of Lessor Liens. As
between Lessor and the Lessees, each related Lessee has been afforded full
opportunity to inspect each Leased Property, is satisfied with the results of
its inspections of such Leased Property and is entering into this Lease solely
on the basis of the results of its own inspections and all risks incident to the
matters discussed in the two preceding sentences, as between Lessor, the Agent
or the Lenders on the one hand, and the Lessees, on the other, are to be borne
by the Lessees, except for the foregoing representation and warranty of Lessor
relative to the absence of Lessor Liens. The provisions of this Article IV have
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been negotiated, and, except to the extent otherwise expressly stated, the
foregoing provisions are intended to be a complete exclusion and negation of any
representations or warranties by Lessor, the Agent or the Lenders, express or
implied, with respect to the Leased Properties, that may arise pursuant to any
law now or hereafter in effect, or otherwise.
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ARTICLE V.
LIENS; EASEMENTS; PARTIAL CONVEYANCES
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Each Lessee shall, within thirty (30) days following knowledge thereof,
discharge or bond over any Lien on or with respect to any Leased Property, the
title thereto, or any interest therein, including any Liens which arise out of
the possession, use, occupancy, construction, repair or rebuilding of any Leased
Property or by reason of labor or materials furnished or claimed to have been
furnished to a Lessee, or any of its contractors or agents or Alterations
constructed by a Lessee, except, in all cases, Permitted Liens or Lessor Liens.
Notwithstanding the foregoing paragraph, at the request of a Lessee, Lessor
shall, from time to time during the Lease Term and upon reasonable advance
written notice from such Lessee, and within fifteen (15) days of receipt of the
materials specified in the next succeeding sentence, consent to and join in any
(i) grant of easements, licenses, rights of way and other rights in the nature
of easements, including, without limitation, utility easements to facilitate
Lessees' use, development and construction of the Leased Properties, (ii)
release or termination of easements, licenses, rights of way or other rights in
the nature of easements which are for the benefit of the Land or the Building(s)
or any portion thereof, (iii) dedication or transfer of portions of the Land,
not improved with a Building, for road, highway or other public purposes, (iv)
execution of agreements for ingress and egress and amendments to any covenants
and restrictions affecting the Land or the Building(s) or any portion thereof
and (v) request to any Governmental Authority for platting or subdivision or
replatting or resubdivision approval with respect to the Land or any portion
thereof or any parcel of land of which the Land or any portion thereof forms a
part or a request for rezoning or any variance from zoning or other governmental
requirements. Lessor's obligations pursuant to the preceding sentence shall be
subject to the requirements that:
(a) any such action shall be at the sole cost and expense of the
requesting Lessee and such Lessee shall pay all actual and reasonable out-of-
pocket costs of Lessor, the Agent and any Lender in connection therewith
(including, without limitation, the reasonable fees of attorneys, architects,
engineers, planners, appraisers and other professionals reasonably retained by
Lessor, the Agent or any Lender in connection with any such action),
(b) the requesting Lessee shall have delivered to Lessor and Agent a
certificate of a Responsible Officer of such Lessee stating that
(i) such action will not cause any Leased Property, the Land or
any Building or any portion thereof to fail to comply in any material
respect with the provisions of this Lease or any other Operative Documents
or any applicable IDB Documentation, or in any material respect with
Applicable Law; and
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(ii) such action will not materially reduce the Fair Market Sales
Value, utility or useful life of any Leased Property, the Land or any
Building nor Lessor's interest therein; and
(c) in the case of any release or conveyance, if Lessor, the Agent or
any Lender so reasonably requests, the requesting Lessee will cause to be issued
and delivered to Lessor and the Agent by the Title Insurance Company an
endorsement to the Title Policy which shall revise the insured legal description
to delete the released property, and shall indicate that the Title Policy is in
full force and effect at the original policy amount.
In addition to the foregoing, the related Lessee may arrange for a sale of
a portion of the Leased Property located at the southeast corner of N.W. 108/th/
Avenue and N.W. 91/st/ Terrace, Miami, Florida and Lessor shall execute such
documents and instruments as may be requested by such Lessee to effect such
sale, provided that all of the following conditions are met: (i) after giving
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effect to such sale, the Leased Property complies with all Applicable Laws
(including all zoning laws and regulations) and all applicable insurance
requirements, (ii) after giving effect to such sale, such Leased Property has
available all services of public facilities and other utilities, together with
all means of egress and ingress, to and from such Leased Property, necessary for
the use and operation of such Leased Property for its intended purpose, (iii)
the net proceeds of such sale shall be at least equal to the diminution in the
Fair Market Sales Value of such Leased Property resulting from such sale, and
shall be applied to reduce the Funded Amounts (on a pro rata basis, among the
Funding Parties) related thereto, (iv) such sale shall be on an "as is, where
is" basis, without representation or recourse on the part of Lessor, (v) the
related Lessee shall pay, or shall promptly reimburse the Agent and the Funding
Parties for, all out of pocket costs and expenses, including legal fees and
disbursements, incurred by any of them in connection with such sale, and (vi)
the related Lessee shall deliver a certificate of a Responsible Officer to the
effect that the foregoing conditions have been satisfied and such other
certificates and documents as the Agent or any Funding Party shall reasonably
request.
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ARTICLE VI.
MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS
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Section VI.1 Maintenance and Repair; Compliance With Law. Each Lessee, at
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its own expense, shall at all times (a) maintain each Leased Property leased by
it in good repair and condition (subject to ordinary wear and tear), in
accordance with prudent industry standards and, in any event, in no less a
manner as other similar property owned or leased by such Lessee or its
Affiliates, (b) make all Alterations in accordance with, and maintain (whether
or not such maintenance requires structural modifications or Alterations) and
operate and otherwise keep each Leased Property in compliance in all material
respects with, all Applicable Laws and insurance requirements, and (c) make all
repairs, replacements and renewals of each Leased Property or any part thereof
which may be required to keep such Leased Property in the condition required by
the preceding clauses (a) and (b). Each Lessee shall perform the foregoing
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maintenance obligations regardless of whether any Leased Property is occupied or
unoccupied. Each Lessee waives any right that it may now have or hereafter
acquire to (i) require Lessor, the Agent or any Lender to maintain, repair,
replace, alter, remove or rebuild all or any part of any Leased Property or (ii)
make repairs at the expense of Lessor, the Agent or any Lender pursuant to any
Applicable Law or other agreements or otherwise. NEITHER LESSOR, THE AGENT NOR
ANY LENDER SHALL BE PERSONALLY LIABLE TO ANY LESSEE OR TO ANY CONTRACTORS,
SUBCONTRACTORS, LABORERS, MATERIALMEN, SUPPLIERS OR VENDORS FOR SERVICES
PERFORMED OR MATERIAL PROVIDED ON OR IN CONNECTION WITH ANY LEASED PROPERTY OR
ANY PART THEREOF. Neither Lessor, the Agent nor any Lender shall be required to
maintain, alter, repair, rebuild or replace any Leased Property in any way.
Section VI.2 Alterations. Each Lessee may, without the consent of Lessor,
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at such Lessee's own cost and expense, make Alterations which do not diminish
the value, utility or useful life of any Leased Property.
Section VI.3 Title to Alterations. Title to all Alterations shall without
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further act vest in Lessor (subject to each Lessee's right to remove trade
fixtures, personal property and equipment which do not constitute Alterations
and which were not acquired with funds advanced by Lessor or any Lender) and
shall be deemed to constitute a part of the Leased Properties and be subject to
this Lease.
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ARTICLE VII.
USE
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Each Lessee may use each Leased Property leased by it or any part thereof
for any lawful purpose, and in a manner consistent with the standards applicable
to properties of a similar nature in the geographic area in which such Leased
Property is located, provided that such use does not materially adversely affect
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the Fair Market Sales Value, utility, remaining useful life or residual value of
such Leased Property, and does not materially violate or conflict with, or
constitute or result in a material default under, any Applicable Law or any
insurance policy required hereunder. In the event that any use of any of the
Leased Property changes the character or original intended use of such Leased
Property and the Lessees do not purchase the Leased Properties at the end of the
Lease Term, the related Lessee, upon request of Lessor, shall restore such
Leased Property to its general character and intended use on the Closing Date or
Completion Date therefor, ordinary wear and tear excepted. No Lessee shall
commit or permit any waste of any Leased Property or any material part thereof.
ARTICLE VIII.
INSURANCE
---------
The provisions of this Article VIII shall apply to Leased Properties
------------
that are not then subject to the Construction Agency Agreement. For any Leased
Property subject to the Construction Agency Agreement, the Lessee shall maintain
insurance in accordance with Section 2.9 of the Construction Agency Agreement.
(a) At any time during which any part of any Building or any
Alteration is under construction and as to any part of any Building or any
Alteration under construction, the related Lessee shall maintain, or cause to be
maintained, at its sole cost and expense, as a part of its blanket policies or
otherwise, "all risks" non-reporting completed value form of builder's risk
insurance.
(b) During the Lease Term, each Lessee shall maintain, at its sole
cost and expense, as a part of its blanket policies or otherwise, insurance
against loss or damage to any Building or any item of equipment included in the
Leased Property by fire and other risks, on terms and in amounts no less
favorable than insurance covering other similar properties or equipment owned or
leased by a Lessee, but in no event less than the replacement cost of such
Building or item of equipment included in the Leased Property, as the case may
be, from time to time.
(c) During the Lease Term, each Lessee shall maintain, at its sole
cost and expense, commercial general liability insurance with respect to such
Lessee's use, operation and
10
occupancy of the Leased Properties. Such insurance shall be on terms and in
amounts that are no less favorable than insurance maintained by a Lessee or its
Affiliates with respect to similar properties or equipment that it owns or
leases, but in no event less than $1,000,000 general liability, plus $5,000,000
liability umbrella coverage, per occurrence. Such insurance policies shall also
provide that each Lessee's insurance shall be considered primary insurance.
Nothing in this Article VIII shall prohibit
------------
Lessor, the Agent or any Lender from carrying at its own expense other insurance
on or with respect to the Leased Properties, provided that any insurance carried
--------
by Lessor, the Agent or any Lender shall not prevent any Lessee from carrying
the insurance required hereby.
(d) Each policy of insurance maintained by a Lessee pursuant to
clauses (a) and (b) of this Article VIII shall provide that all insurance
- ----------- --- ------------
proceeds in respect of any loss or occurrence shall be adjusted by, and all
insurance proceeds shall be paid to, such Lessee, except if, and for so long as
an Event of Default exists, all losses shall be adjusted solely by, and all
insurance proceeds shall be paid solely to, the Agent (or Lessor if the Loans
have been fully paid) for application pursuant to this Lease.
(e) On the Closing Date for each parcel of Land and on each
anniversary of the related policy date each Lessee shall furnish Lessor with
certificates showing the insurance required under this Article VIII to be in
------------
effect and naming Lessor, the Agent and the Lenders as additional insureds.
Such certificates shall include a provision for thirty (30) days' advance
written notice by the insurer to Lessor and the Agent in the event of
cancellation or expiration or nonpayment of premium with respect to such
insurance, and shall include a customary breach of warranty clause. Each Lessee
shall provide evidence to Lessor and the Agent that each insurance policy
required by this Article VIII has been renewed or replaced prior to the
------------
scheduled expiration date therefor.
(f) Each policy of insurance maintained by a Lessee pursuant to this
Article VIII shall provide that in respect of the interests of Lessor, the Agent
- ------------
and the Lenders, such policies shall not be invalidated by any fraud, action,
inaction or misrepresentation of any Lessee or any other Person. Each of each
Lessee, Lessor, the Agent and the Lenders agree to waive their rights of
subrogation against the others to the extent of the losses paid under insurance
policies.
(g) All insurance policies carried in accordance with this Article
-------
VIII shall be maintained with insurers rated at least A- by A.M. Best & Company,
- ----
and in all cases the insurer shall be qualified to insure risks in the State
where each Leased Property is located.
11
ARTICLE IX.
ASSIGNMENT AND SUBLEASING
-------------------------
No Lessee may assign any of its right, title or interest in, to or under
this Lease, except (i) to a wholly owned Subsidiary of Hughes, provided that
--------
Hughes reaffirms its obligations under the Guaranty Agreement after giving
effect thereto and (ii) as set forth in the following sentence. Each Lessee may
sublease all or any portion of any Leased Property, provided that (a) all
--------
obligations of such Lessee shall continue in full effect as obligations of a
principal and not of a guarantor or surety, as though no sublease had been made;
(b) such sublease shall be expressly subject and subordinate to this Lease, the
Loan Agreement and the other Operative Documents; and (c) each such sublease
shall terminate on or before the Lease Termination Date. Each Lessee shall give
the Agent and Lessor prompt written notice of any such sublease.
Except pursuant to an Operative Document, this Lease shall not be mortgaged
or pledged by any Lessee, nor shall any Lessee mortgage or pledge any interest
in any Leased Property or any portion thereof. Any such mortgage or pledge
shall be void.
ARTICLE X.
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
-----------------------------------------
12
Section X.1 Event of Loss. Any event (i) which would otherwise
-------------
constitute a Casualty during the Base Term, and (ii) which, in the good-faith
judgment of the related Lessee, (A) requires repairs to the related Leased
Property that would cost in excess of 50% of the original cost of such Leased
Property or (B) renders repair and restoration of the related Leased Property
impossible or impractical, and with respect to which such Lessee has determined
not to repair and restore such Leased Property (it being understood that the
-- ----- ----------
Lessee shall have the option to either purchase the affected Leased Property or
repair and restore the affected Leased Property) shall constitute an "Event of
--------
Loss". Within sixty (60) days after the occurrence of such event, the related
- ----
Lessee shall deliver to Lessor an Officer's Certificate notifying Lessor of such
event and of such judgment and decision not to repair and restore. In the case
of any other event which constitutes a Casualty, the related Lessee shall
restore such Leased Property pursuant to Section 10.3. If an Event of Loss
------------
other than an Event of Taking shall occur, the related Lessee shall purchase the
affected Leased Property pursuant to Section 14.4 on the earlier of (i) the
------------
Lease Termination Date and (ii) the next Payment Date occurring not less than
sixty (60) days after the delivery of the Officer's Certificate pursuant to the
second preceding sentence; provided that if such an Event of Loss shall occur
--------
during the Construction Term for such Leased Property, the related Lessee may,
at such Lessee's option, pay to the Lessor the Construction Failure Payment
instead of paying the Leased Property Balance as the purchase price for such
Leased Property (in which case the Lessor shall retain the Lessor's interest in
such Leased Property, subject to the provisions of Section 5.7 of the
-----------
Construction Agency Agreement with respect to remarketing). Upon Lessor's
receipt of such Leased Property Balance on such date, Lessor shall cause
Lessor's interest in such Leased Property to be conveyed to the related Lessee
in accordance with and subject to the provisions of Section 14.5 hereof; upon
------------
completion of such purchase (or payment of the Construction Failure Payment, as
the case may be), but not prior thereto, this Lease with respect to such Leased
Property and all obligations hereunder with respect to such Leased Property
shall terminate, except with respect to obligations and liabilities hereunder,
actual or contingent, that have arisen or relate to events occurring on or prior
to such date of purchase, or which are expressly stated herein to survive
termination of this Lease.
Upon the consummation of the purchase of any Leased Property pursuant to
this Section 10.1, any proceeds derived from insurance required to be maintained
------------
by the related Lessee pursuant to this Lease for any Leased Property remaining
after payment of such purchase price shall be paid over to, or retained by, such
Lessee or as it may direct, and Lessor shall assign to such Lessee, without
warranty, all of Lessor's rights to and interest in such insurance required to
be maintained by such Lessee pursuant to this Lease.
Section X.2 Event of Taking. Any event (i) which constitutes a
---------------
Condemnation of all of, or substantially all of, a Leased Property, or (ii) (A)
which would otherwise constitute a Condemnation, and (B) which, in the good-
faith judgment of the related Lessee, (A) requires repairs to the related Leased
Property that would cost in excess of 50% of the original cost of such Leased
Property or (B) renders restoration and rebuilding of the related Leased
Property impossible or impractical, and with respect to which such Lessee has
determined not to repair
13
and restore such Leased Property (it being understood that the Lessee shall have
-- ----- ----------
the option to either purchase the affected Leased Property or repair and restore
the affected Leased Property) shall constitute an "Event of Taking". Within
---------------
sixty (60) days after the occurrence of such event, the related Lessee shall
deliver to Lessor an Officer's Certificate notifying Lessor of such event and of
such judgment and decision not to repair and restore. In the case of any other
event which constitutes a Condemnation, the related Lessee shall restore and
rebuild such Leased Property pursuant to Section 10.4. If an Event of Taking
------------
shall occur, the related Lessee shall purchase the affected Leased Property
pursuant to Section 14.4 on the earlier of (A) the Lease Termination Date and
------------
(B) the next Payment Date occurring not less than sixty (60) days after the
occurrence of such Event of Taking, in the case of an Event of Taking described
in clause (i) above, or (2) on the earlier of (A) the Lease Termination Date and
----------
(B) the next Payment Date occurring not less than 60 days after the delivery of
the Officer's Certificate pursuant to the second preceding sentence, in the case
of an Event of Taking described in clause (ii) above, an amount equal to the
----------
related Leased Property Balance; provided that, if such an Event of Taking shall
--------
occur during the Construction Term for such Leased Property, the related Lessee
may, at such Lessee's option, pay to the Lessor the Construction Failure Payment
instead of paying the Leased Property Balance as the purchase price for such
Leased Property (in which case the Lessor shall retain the Lessor's interest in
such Leased Property, subject to the provisions of Section 5.7 of the
Construction Agency Agreement with respect to remarketing). Upon Lessor's
receipt of such Leased Property Balance on such date, Lessor shall cause
Lessor's interest in such Leased Property, and in all condemnation proceeds
related thereto, to be conveyed to the related Lessee in accordance with and
subject to the provisions of Section 14.4 hereof (provided that such conveyance
------------
shall be subject to all rights of the condemning authority); upon completion of
such purchase (or payment of the Construction Failure Payment, as the case may
be), but not prior thereto, this Lease with respect to such Leased Property and
all obligations hereunder with respect to such Leased Property shall terminate,
except with respect to obligations and liabilities hereunder, actual or
contingent, that have arisen or relate to events occurring on or prior to such
date of purchase, or which are expressly stated herein to survive termination of
this Lease.
Upon the consummation of the purchase of such Leased Property pursuant to
this Section 10.2, all Awards received by Lessor, after deducting any reasonable
------------
out-of-pocket costs incurred by Lessor in collecting such Awards, received or
payable on account of an Event of Taking with respect to such Leased Property
during the related Lease Term shall be promptly paid to the related Lessee, and
all rights of Lessor in Awards not then received shall be assigned to Lessee by
Lessor.
Section X.3 Casualty. If a Casualty shall occur after the Construction
--------
Period for the affected Leased Property which is not an Event of Loss, the
related Lessee shall rebuild and restore the affected Leased Property, will
complete the same prior to the Lease Termination Date, and will cause the
condition set forth in Section 3.5 (c) of the Master Agreement to be fulfilled
with respect to such restoration and rebuilding prior to the Lease Termination
Date, regardless of whether insurance proceeds received as a result of such
Casualty are sufficient for such purpose.
14
Section X.4 Condemnation. If a Condemnation shall occur after the
------------
Construction Period for the affected Leased Property which is not an Event of
Taking, the related Lessee shall rebuild and restore the affected Leased
Property, will complete the same prior to the Lease Termination Date, and will
cause the condition set forth in Section 3.5 (c) of the Master Agreement to be
fulfilled with respect to such restoration and rebuilding prior to the Lease
Termination Date.
Section X.5 Verification of Restoration and Rebuilding. In the event of
------------------------------------------
Casualty or Condemnation that involves, or is reasonably expected to involve,
repair or rebuilding costs in excess of $1,000,000, to verify the related
Lessee's compliance with the foregoing Section 10.3 or 10.4, as appropriate,
------------ ----
Lessor, the Agent, the Lenders and their respective authorized representatives
may, upon five (5) Business Days' notice to such Lessee, make a reasonable
number of inspections of the affected Leased Property with respect to (i) the
extent of the Casualty or Condemnation and (ii) the restoration and rebuilding
of the related Building and the Land. All actual and reasonable out-of-pocket
costs of such inspections incurred by Lessor, the Agent or any Lender will be
paid by the related Lessee promptly after written request. No such inspection
shall unreasonably interfere with the related Lessee's operations or the
operations of any other occupant of such Leased Property. None of the
inspecting parties shall have any duty to make any such inspection or inquiry
and none of the inspecting parties shall incur any liability or obligation by
reason of making or not making any such inspection or inquiry.
Section X.6 Application of Payments. All proceeds (except for payments
-----------------------
under insurance policies maintained other than pursuant to Article VIII of this
------------
Lease) received at any time by Lessor, any Lessee or the Agent from any
Governmental Authority or other Person with respect to any Condemnation or
Casualty to any Leased Property or any part thereof or with respect to an Event
of Loss or an Event of Taking, plus the amount of any payment that would have
----
been due from an insurer but for a Lessee's self-insurance or deductibles ("Loss
----
Proceeds"), shall (except to the extent Section 10.9 applies) be applied as
- -------- ------------
follows:
(a) In the event the related Lessee purchases such Leased Property
pursuant to Section 10.1 or Section 10.2, such Loss Proceeds shall be
------------ ------------
applied as set forth in Section 10.1 or Section 10.2, as the case may be;
------------ ------------
(b) In the event of a Casualty at such time when no Event of Default
has occurred and is continuing and the related Lessee is obligated to
repair and rebuild such Leased Property pursuant to Section 10.3, such
------------
Lessee may, in good faith and subsequent to the date of such Casualty,
certify to Lessor and to the applicable insurer that no Event of Default
has occurred and is continuing, in which event the applicable insurer shall
pay the Loss Proceeds to such Lessee;
15
(c) In the event of a Condemnation at such time when no Event of
Default has occurred and is continuing and the related Lessee is obligated
to repair and rebuild such Leased Property pursuant to Section 10.4, such
------------
Lessee may, in good faith and subsequent to the date of such Condemnation,
certify to Lessor and the Agent that no Event of Default has occurred and
is continuing, in which event the applicable Award shall be paid over to
such Lessee; and
(d) As provided in Section 10.8, if such section is applicable.
------------
During any period of repair or rebuilding pursuant to this Article X, this
---------
Lease will remain in full force and effect and Basic Rent shall continue to
accrue and be payable without abatement or reduction. Each Lessee shall
maintain records setting forth information relating to the receipt and
application of payments in accordance with this Section 10.6. Such records
------------
shall be kept on file by each Lessee at its offices and shall be made available
to Lessor, the Lenders and the Agent upon request during such Lessee's normal
business hours.
Section X.7 Prosecution of Awards. (a) If any Condemnation shall
---------------------
occur, the party receiving the notice of such Condemnation shall give to the
other party and the Agent promptly, but in any event within thirty (30) days
after the occurrence thereof, written notice of such occurrence and the date
thereof, generally describing the nature and extent of such Condemnation. With
respect to any Event of Taking or any Condemnation, the related Lessee shall
control the negotiations with the relevant Governmental Authority as to any
proceeding in respect of which Awards are required, under Section 10.6, to be
------------
assigned or released to such Lessee, unless an Event of Default shall have
occurred and be continuing, in which case (i) the Agent (or Lessor if the Loans
have been fully paid) shall control such negotiations; and (ii) such Lessee
hereby irrevocably assigns, transfers and sets over to Lessor all rights of such
Lessee to any Award on account of any Event of Taking or any Condemnation and,
if there will not be separate Awards to Lessor and such Lessee on account of
such Event of Taking or Condemnation, irrevocably authorizes and empowers the
Agent (or Lessor if the Loans have been fully paid) during the continuance of an
Event of Default, with full power of substitution, in the name of such Lessee or
otherwise (but without limiting the obligations of such Lessee under this
Article X), to file and prosecute what would otherwise be such Lessee's claim
- ---------
for any such Award and to collect, receipt for and retain the same. In any
event Lessor and the Agent may participate in such negotiations, and no
settlement will be made without the prior consent of the Agent (or Lessor if the
Loans have been fully paid), not to be unreasonably withheld.
(b) Notwithstanding the foregoing, each Lessee may prosecute, and Lessor
shall have no interest in, any claim with respect to such Lessee's personal
property and equipment not financed by or otherwise property of Lessor, business
interruption or similar award and such Lessee's relocation expenses.
16
Section X.8 Application of Certain Payments Not Relating to an Event of
-----------------------------------------------------------
Taking. In case of a requisition for temporary use of all or a portion of any
- ------
Leased Property which is not an Event of Taking, this Lease shall remain in full
force and effect with respect to such Leased Property, without any abatement or
reduction of Basic Rent, and the Awards for such Leased Property shall, unless
an Event of Default has occurred and is continuing, be paid to the related
Lessee.
Section X.9 Other Dispositions. Notwithstanding the foregoing provisions
------------------
of this Article X, so long as an Event of Default shall have occurred and be
---------
continuing, any amount that would otherwise be payable to or for the account of,
or that would otherwise be retained by, Lessee pursuant to this Article X shall
---------
be paid to the Agent (or Lessor if the Loans have been fully paid) as security
for the obligations of the Lessees under this Lease and, at such time thereafter
as no Event of Default shall be continuing, such amount shall be paid promptly
to the related Lessee to the extent not previously applied by Lessor or the
Agent in accordance with the terms of this Lease or the other Operative
Documents.
Section X.10 No Rent Abatement. Rent shall not abate hereunder by
-----------------
reason of any Casualty, any Event of Loss, any Event of Taking or any
Condemnation of any Leased Property, and each Lessee shall continue to perform
and fulfill all of such Lessee's obligations, covenants and agreements hereunder
notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation
until the Lease Termination Date.
ARTICLE XI.
INTEREST CONVEYED TO LESSEES
----------------------------
Each Lessee and Lessor intend that this Lease be treated as a true lease
for all purposes.
ARTICLE XII.
EVENTS OF DEFAULT
-----------------
The following events shall constitute Events of Default (whether any 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):
(a) any Lessee shall fail to make any payment of Basic Rent within three
(3) days after written or verbal notice thereof from Lessor or the Agent to
Hughes, provided that no such notice shall be required if notice has been given
--------
pursuant to this clause (a) twice during the relevant calendar year (in which
----------
case, the failure to make any payment of Basic Rent within three (3) days after
such Basic Rent is due shall constitute an Event of Default);
17
(b) any Lessee shall fail to make any payment of Rent (other than Basic
Rent and other than as set forth in clause (c)) or any other amount payable
----------
hereunder or under any of the other Operative Documents (other than Basic Rent
and other than as set forth in clause (c)), and such failure shall continue for
----------
a period of ten (10) Business Days after written notice thereof from Lessor or
the Agent to Hughes;
(c) any Lessee shall fail to pay the Lease Balance when due pursuant to
Section 14.1 or Article XIV or the Construction Agent shall fail to make any
- ------------ -----------
payment when due under the Construction Agency Agreement;
(d) any Lessee shall fail to maintain insurance as required by Article VIII
------------
hereof or Section 2.9 of the Construction Agency Agreement, and such failure
shall continue until the earlier of (i) fifteen (15) days after written notice
thereof from Lessor and (ii) the day immediately preceding the date on which any
applicable insurance coverage would otherwise finally lapse or terminate;
(e) any Consolidated Company shall fail to make when due (whether at stated
maturity, by acceleration, on demand or otherwise, and after giving effect to
any applicable grace period) any payment of principal of or interest on any
Indebtedness (other than the Obligations) exceeding $5,000,000 in the aggregate;
(f) any Consolidated Company shall fail to observe or perform within any
applicable grace period any covenants or agreements (other than those referenced
in paragraph (e) above) contained in any agreements or instruments relating to
-------------
any of its Indebtedness exceeding $5,000,000 in the aggregate, or any other
event shall occur if the effect of such failure or other event is to accelerate,
or to permit the holder of such Indebtedness or any other Person to accelerate,
the maturity of such Indebtedness (it being understood that if the holder of
such Indebtedness waives such failure or accepts a cure of such failure, such
waiver or acceptance of cure shall negate the Event of Default arising hereunder
solely as a result of such failure); or any such Indebtedness shall be required
to be prepaid (other than by a regularly scheduled required prepayment) in whole
or in part prior to its stated maturity;
(g) Hughes or any other Consolidated Company shall commence a voluntary
case concerning itself under the Bankruptcy Code or an involuntary case for
bankruptcy is commenced against any Consolidated Company and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or any part of the property of any
Consolidated Company; or any Consolidated Company commences proceedings of its
own bankruptcy or to be granted a suspension of payments or any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction,
whether now or hereafter in effect, relating to any
18
Consolidated Company or there is commenced against any Consolidated Company any
such proceeding which remains undismissed for a period of 60 days; or any
Consolidated Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or any
Consolidated Company suffers any appointment of any custodian or the like for it
or any part of its property which continues undischarged or unstayed for a
period of 60 days; or any Consolidated Company makes a general assignment for
the benefit of creditors; or any Consolidated Company shall fail to pay, or
shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; or any Consolidated Company shall call a meeting
of its creditors with a view to arranging a composition or adjustment of its
debts; or any Consolidated Company shall by any act or failure to act indicate
its consent to, approval of or acquiescence in any of the foregoing; or any
corporate action is taken by any Consolidated Company for the purpose of
effecting any of the foregoing;
(h) a Plan of a Consolidated Company or a Plan subject to Title IV of ERISA
of any of its ERISA Affiliates:
i. shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan, Section 412 of
the Tax Code or Section 302 of ERISA for any plan year or a waiver of such
standard is sought or granted with respect to such Plan under applicable
law, the terms of such Plan or Section 412 of the Tax Code or Section 303
of ERISA; or
ii. is being, or has been, terminated or the subject of termination
proceedings under applicable law or the terms of such Plan; or
iii. shall require a Consolidated Company to provide security under
applicable law, the terms of such Plan, Section 401 or 412 of the Tax Code
or Section 306 or 307 of ERISA; or
iv. results in a liability to a Consolidated Company under applicable
law, the terms of such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC or a Plan that would have a Material Adverse Effect;
(i) a judgment or order for the payment of money in excess of $5,000,000 or
otherwise having a Material Adverse Effect shall be rendered against Hughes or
any other Consolidated Company and such judgment or order shall continue
unsatisfied (in the case of a money judgment) and in effect for a period of 30
days during which execution shall not be effectively stayed or deferred (whether
by action of a court, by agreement or otherwise);
19
(j) Hughes shall at any time fail to own and control the percentage of the
voting stock of any Subsidiary Guarantor, either directly or indirectly through
a wholly-owned Subsidiary of Hughes set forth on Schedule 4.1(a) to the Master
Agreement (with respect to Subsidiary Guarantors existing on the Initial Closing
Date) or as otherwise required pursuant to Section 5.12 of the Master Agreement
(with respect to all other Subsidiary Guarantors);
(k) (i) any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act), other than the Hughes Family shall become
the "beneficial owner(s)" (as defined in said Rule 13d-3) of more than
twenty-five percent (25%) of the shares of the outstanding common stock of
Hughes entitled to vote for members of Hughes' board of directors; or
(ii) any event or condition shall occur or exist which, pursuant to
the terms of any change in control provision, requires or permits the
holder(s) of Indebtedness of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in
whole or in part, or the maturity of such Indebtedness to be accelerated in
any respect (it being understood that if the holder of such Indebtedness
waives such event or condition or accepts a cure of such event or
condition, such waiver or acceptance of cure shall negate the Event of
Default arising hereunder solely as a result of such event or condition);
(l0 an attachment or similar action shall be made on or taken against any
of the assets of any Consolidated Company with an Asset Value exceeding
$5,000,000 in the aggregate and is not removed, suspended or enjoined within 60
days of the same being made or any suspension or injunction being lifted;
(m0 if any of the Operative Documents shall be cancelled, terminated,
revoked or rescinded or any action at law, suit or in equity or other legal
proceeding to cancel, revoke or rescind any of the Operative Documents shall be
commenced by or on behalf of any Obligor, or any court or any other governmental
or regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Operative Documents is illegal, invalid or
unenforceable in accordance with the terms thereof, and the enforcement of such
judgment, order, decree or ruling is not stayed or suspended within 60 days of
the entry thereof;
(n0 any representation or warranty by Hughes or any other Lessee in any
Operative Document or in any certificate or document delivered to Lessor, the
Agent or any Funding Party pursuant to any Operative Document shall have been
incorrect in any material respect when made; or
(o0 any Lessee or Hughes shall fail in any material respect to timely,
perform or observe any covenant or agreement (not included in clause (a) through
----------
(n) of this Article XII) to
- --- -----------
20
be performed or observed by it hereunder or under any other Operative Document
and such failure shall continue for a period of thirty (30) days (or 10 Business
Days in the case of financial covenants) after such Lessee's or Hughes' receipt
of written notice thereof from Lessor, the Agent or any Funding Party or such
Lessee or Hughes shall have actual knowledge of such failure, except that such
thirty (30) day period shall be automatically extended for such additional
period of time as is reasonably necessary to cure such default, if such default
is capable of being cured but cannot, with reasonable diligence, be cured within
such thirty (30) day period, provided that (i) the related Lessee or Hughes is
--------
in the process of diligently curing such default and (ii) such period shall not
be extended for more than 120 days.
ARTICLE XIII.
ENFORCEMENT
-----------
Section XIII.1 Remedies. Upon the occurrence and during the continuance of
--------
any Event of Default, Lessor may do one or more of the following as Lessor in
its sole discretion shall determine, without limiting any other right or remedy
Lessor may have on account of such Event of Default; provided that, with respect
--------
to any Leased Property subject to the Construction Agency Agreement, the
Lessor's remedies with respect thereto shall be limited to those set forth in
Section 5.3 of the Construction Agency Agreement.
- -----------
(a) Lessor may, by notice to Hughes, rescind or terminate this Lease as of
the date specified in such notice; however, (A) no reletting, reentry or taking
of possession of any Leased Property by Lessor will be construed as an election
on Lessor's part to terminate this Lease unless a written notice of such
intention is given to Hughes, (B) notwithstanding any reletting, reentry or
taking of possession, Lessor may at any time thereafter elect to terminate this
Lease for a continuing Event of Default, and (C) no act or thing done by Lessor
or any of its agents, representatives or employees and no agreement accepting a
surrender of any Leased Property shall be valid unless the same be made in
writing and executed by Lessor;
(b) Lessor may (i) demand that the Lessees, and the Lessees shall upon the
written demand of Lessor, return the Leased Properties promptly to Lessor in the
manner and condition required by, and otherwise in accordance with all of the
provisions of, Articles VI and XIV hereof as if the Leased Properties were being
----------- ---
returned at the end of the Lease Term, and Lessor shall not be liable for the
reimbursement of any Lessee for any costs and expenses incurred by such Lessee
in connection therewith and (ii) without prejudice to any other remedy which
Lessor may have for possession of the Leased Properties, and to the extent and
in the manner permitted by Applicable Law, enter upon any Leased Property and
take immediate possession of (to the exclusion of the related Lessee) any Leased
Property or any part thereof and expel or remove the related Lessee and any
other person who may be occupying such Leased Property, by summary proceedings
or otherwise, all without liability to any Lessee for or by reason of such entry
or taking of possession, whether for the restoration of damage to property
caused by such taking or
21
otherwise and, in addition to Lessor's other damages, the Lessees shall be
responsible for the actual and reasonable costs and expenses of reletting,
including brokers' fees and the reasonable out-of-pocket costs of any
alterations or repairs made by Lessor;
(c) Lessor may (i) sell all or any part of the Leased Properties at public
or private sale, as Lessor may determine, free and clear of any rights of any
Lessee and without any duty to account to any Lessee with respect to such action
or inaction or any proceeds with respect thereto (except to the extent required
by clause (ii) below if Lessor shall elect to exercise its rights thereunder) in
-----------
which event the Lessees' obligation to pay Basic Rent hereunder for periods
commencing after the date of such sale shall be terminated or proportionally
reduced, as the case may be; and (ii) if Lessor shall so elect, demand, by
written notice to Hughes, that the Lessees pay as liquidated damages for loss of
a bargain and not as a penalty (the parties agreeing that the Lessor's actual
damages would be difficult to predict, but the aforementioned liquidated damages
represent a reasonable approximation of such amount) an amount equal to (A) the
excess of the sum of (1) all Rent due and unpaid as of the date of such payment,
plus (2) the Permitted Lease Balances for all of the Leased Properties over (B)
the net proceeds of such sale (that is after deducting all costs, taxes and
expenses incurred by Lessor, the Agent or any Lender incident to such
conveyance);
(d) Lessor may, at its option, not terminate this Lease, and continue to
collect all Basic Rent, Supplemental Rent, and all other amounts (including,
without limitation, the Funded Amount) due Lessor (together with all costs of
collection) and enforce the Lessees' obligations under this Lease as and when
the same become due, or are to be performed, and at the option of Lessor, upon
any abandonment of any Leased Property by Lessee or re-entry of same by Lessor,
Lessor may, in its sole and absolute discretion, elect not to terminate this
Lease with respect thereto and may make such reasonable alterations and
necessary repairs in order to relet such Leased Property, and relet such Leased
Property or any part thereof for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Lessor in its reasonable discretion may deem
advisable; and upon each such reletting all rentals actually received by Lessor
from such reletting shall be applied to the Lessees' obligations hereunder in
such order, proportion and priority as Lessor may elect in Lessor's sole and
absolute discretion. If such rentals received from such reletting during any
Rent Period are less than the Rent to be paid during that Rent Period by the
Lessees hereunder, the Lessees shall pay any deficiency, as reasonably
calculated by Lessor, to Lessor on the Payment Date for such Rent Period;
(e) 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 Rent
Period(s), and such suits shall not in any manner prejudice Lessor's right to
collect any such damages for any subsequent Rent Period(s), or Lessor may defer
any
22
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
(f) Lessor may retain and apply against Lessor's damages all sums which
Lessor would, absent such Event of Default, be required to pay to, or turn over
to, a Lessee pursuant to the terms of this Lease.
Section XIII.2 Remedies Cumulative; No Waiver; Consents. To the extent
----------------------------------------
permitted by, and subject to the mandatory requirements of, Applicable Law, each
and every right, power and remedy herein specifically given to Lessor or
otherwise in this Lease shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute, and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
Lessor, and the exercise or the beginning of the exercise of any power or remedy
shall not be construed to be a waiver of the right to exercise at the same time
or thereafter any right, power or remedy. No delay or omission by Lessor in the
exercise of any right, power or remedy or in the pursuit of any remedy shall
impair any such right, power or remedy or be construed to be a waiver of any
default on the part of any Lessee or to be an acquiescence therein. Lessor's
consent to any request made by any Lessee shall not be deemed to constitute or
preclude the necessity for obtaining Lessor's consent, in the future, to all
similar requests. No express or implied waiver by Lessor of any Event of
Default shall in any way be, or be construed to be, a waiver of any future or
subsequent Potential Event of Default or Event of Default. To the extent
permitted by Applicable Law, each Lessee hereby waives any rights now or
hereafter conferred by statute or otherwise that may require Lessor to sell,
lease or otherwise use any Leased Property or part thereof in mitigation of
Lessor's damages upon the occurrence of an Event of Default or that may
otherwise limit or modify any of Lessor's rights or remedies under this Article
-------
XIII.
- ----
Section XIII.3 Purchase Upon an Event of Default. Upon the occurrence of an
---------------------------------
Event of Default, until such time as Lessor commences material preparations for
the sale or re-lease of the Leased Properties, the Lessees may purchase all, but
not less than all, of the Leased Properties for a purchase price equal to (A)
the Lease Balance, including any amounts due pursuant to Section 7.5 of the
Master Agreement, if such purchase occurs prior to the EBO Date and (B) the
greater of (i) the Lease Balance, including any amounts due pursuant to Section
7.5 of the Master Agreement and (ii) the aggregate Fair Market Sales Value of
the Leased Properties, if such purchase occurs on or after the EBO Date; such
purchase shall be made in accordance with Section 14.5, upon not less than five
------------
(5) Business Days' written notice (which shall be irrevocable) to Lessor, which
notice shall set forth the date of purchase (which shall be a date no later than
thirty (30) Business Days from the date of such notice).
Section XIII.4 Limitation on Liability. Notwithstanding the provisions of
-----------------------
Section 13.1, the Lessees' recourse liability to Lessor as a consequence of the
- ------------
occurrence of a Limited Event of Default shall be limited to the payment by the
Lessees of the Discounted Lease Balance;
23
provided, however if Lessor used commercial reasonable standards in determining
- -------- -------
that such Limited Event of Default occurred, then the Lessor shall be entitled
to exercise any of the remedies set forth in Section 13.1; and provided, further
------------ -------- -------
that if the sole existing Event of Default is (i) an Event of Default under
clause (f) of Article XII and the Funding Parties and their Affiliates, either
- ---------- -----------
collectively or individually, have the ability to control (by vote or otherwise)
whether such Indebtedness will become due prior to its stated maturity, (ii) an
Event of Default pursuant to clause (n) of Article XII that is based on the
---------- -----------
representation by Hughes set forth in the last sentence of Section 4.1(c) of the
Master Agreement or in the last sentence of Section 4.1(s) of the Master
Agreement or (iii) an Event of Default pursuant to clause (k)(ii) of Article XII
-------------- -----------
or clause (f) of Article XII resulting from a Cross Default, the Lessees'
---------- -----------
recourse liability to Lessor shall be limited to the payment by the Lessees of
the Discounted Lease Balance.
ARTICLE XIV.
SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL
----------------------------------------------------
Section XIV.1 Lessee's Option to Purchase. Subject to the terms,
---------------------------
conditions and provisions set forth in this Article XIV, each Lessee shall have
-----------
the option (the "Purchase Option"), to be exercised as set forth below, to
---------------
purchase from Lessor, Lessor's interest in all of the Leased Properties;
provided that such option must be exercised with respect to all, but not less
- --------
than all, of the Leased Properties under all of the Lease Supplements. Such
option must be exercised by written notice to Lessor not later than the EBO
Date, which notice shall be irrevocable; such notice shall specify the date that
such purchase shall take place, which date shall be a date occurring not less
than thirty (30) days after such notice or the EBO Date (whichever is earlier).
If the Purchase Option is exercised pursuant to the foregoing, then, subject to
the provisions set forth in this Article XIV, on the applicable purchase date,
-----------
Lessor shall convey to each Lessee, by special warranty deed and bill of sale,
without recourse or warranty (other than as to the absence of Lessor Liens) and
each Lessee shall purchase from Lessor, Lessor's interest in the Leased
Properties leased by such Lessee.
Section XIV.2 Determination of Purchase Price. Upon the purchase by the
-------------------------------
Lessees of Lessor's interest in the Leased Properties upon the exercise of the
Purchase Option, the aggregate purchase price for all of the Leased Properties
shall be an amount equal to the Lease Balance as of the closing date for such
purchase, including any amount due pursuant to Section 7.5(f) of the Master
Agreement as a result of such purchase.
Section XIV.3 Purchase Option on Lease Termination Date. In the event that
-----------------------------------------
that the Lessees do not purchase the Leased Properties pursuant to Section 14.1,
------------
the Lessees may elect to purchase all, but not less than all, of the Leased
Properties on the Lease Termination Date for a price equal to the Fair Market
Sales Value therefor as of the Lease Termination Date. The Lessees may exercise
such option by giving the Lessor irrevocable notice of such exercise at least
twelve (12) months prior to the Lease Termination Date. In the event that the
Lessees do not
24
exercise such purchase option by giving such notice by such date, the Lessor
shall have no further duty to offer any of the Leased Properties to any Lessee,
and may hold, re-lease or sell any or all of the Leased Properties, at its
discretion, free and clear of any claim of any Lessee.
Section XIV.4 Purchase Procedure. (a) If a Lessee shall purchase Lessor's
------------------
interest in a Leased Property pursuant to any provision of this Lease, (i) such
Lessee shall accept from Lessor and Lessor shall convey such Leased Property by
a duly executed and acknowledged special warranty deed and quit claim bill of
sale of such a Leased Property in recordable form, (ii) upon the date fixed for
any purchase of Lessor's interest in Leased Property hereunder, the related
Lessee(s) shall pay to the order of the Agent (or Lessor if the Loans have been
paid in full) the Lease Balance or Leased Property Balance, or the Fair Market
Sales Value, as applicable, plus any amount due pursuant to Section 7.5 of the
Master Agreement as a result of such purchase by wire transfer of immediately
available funds, (iii) Lessor will execute and deliver to the related Lessee
such other documents, including releases, affidavits, termination agreements and
termination statements, as may be legally required or as may be reasonably
requested by Lessee in order to effect such conveyance, free and clear of Lessor
Liens and the Liens of the Operative Documents and (iv) if such Leased Property
is subject to a Ground Lease, Lessor will execute and deliver to the related
Lessee an assignment or termination of such Ground Lease, as directed by such
Lessee, in such form as may be reasonably requested by such Lessee, and such
Lessee shall pay any amounts due with respect thereto under such Ground Lease.
(b) Each Lessee shall, at such Lessee's sole cost and expense, obtain all
required governmental and regulatory approval and consents and in connection
therewith shall make such filings as required by Applicable Law; in the event
that Lessor is required by Applicable Law to take any action in connection with
such purchase and sale, the Lessees shall pay prior to transfer all reasonable
out-of-pocket costs incurred by Lessor in connection therewith. Without
limiting the foregoing, all costs incident to such conveyance, including,
without limitation, each Lessee's attorneys' fees, Lessor's attorneys' fees,
commissions, each Lessee's and Lessor's escrow fees, recording fees, title
insurance premiums and all applicable documentary transfer or other transfer
taxes and other taxes required to be paid in order to record the transfer
documents that might be imposed by reason of such conveyance and the delivery of
such deed shall be borne entirely by and paid by the Lessees.
(c) Upon expiration or termination of this Lease resulting in conveyance
of Lessor's interest in the title to the Leased Properties to the Lessees, there
shall be no apportionment of rents (including, without limitation, water rents
and sewer rents), taxes, insurance, utility charges or other charges payable
with respect to the Leased Properties, all of such rents, taxes, insurance,
utility or other charges due and payable with respect to the Leased Properties
prior to termination being payable by the Lessees hereunder and all due after
such time being payable by the Lessees as the then owners of the Leased
Properties.
25
Section XIV.5 Surrender. If the Lessees have not purchased the Leased
---------
Properties, the Lessees shall surrender the Leased Properties to Lessor on the
Lease Termination Date. The Lessees shall fulfill all of the following
conditions in connection with such surrender:
(a) Not later than ten (10) Business Days prior to the Lease
Termination Date, each Lessee shall deliver to Lessor and the Agent an
environmental assessment of each Leased Property leased by it dated not
more than one hundred eighty (180) days prior to the Lease Termination
Date. Such environmental assessment shall be prepared by an environmental
consultant selected by the related Lessee and reasonably satisfactory to
the Required Funding Parties, shall be in form, detail and substance
reasonably satisfactory to the Required Funding Parties, and shall
otherwise indicate no degradation in environmental conditions beyond those
described in the related Environmental Audit for which corrective action is
required by Applicable Law and shall not include a recommendation for
further investigation to make such determination.
(b) On the date of Lessees' surrender, each of the Construction
Conditions shall have been timely satisfied and no Event of Default or
Potential Event of Default shall exist, and thereafter, no Event of Default
or Potential Event of Default shall exist under this Lease.
(c) Each Lessee shall have completed in all material respects all
Alterations, restoration and rebuilding of the Leased Properties leased by
it pursuant to Sections 6.1, 6.2, 10.3 and 10.4 (as the case may be) and
------------ --- ---- ----
shall have fulfilled in all material respects all of the conditions and
requirements in connection therewith pursuant to said Sections, in each
--------
case by the date on which the Lessees' surrender the Leased Properties,
regardless of whether the same shall be within such Lessee's control.
(d) Upon request by the Agent, each Lessee shall promptly provide any
maintenance records relating to each Leased Property leased by it to
Lessor, the Agent and any potential purchaser, and shall otherwise do all
things necessary to deliver possession of such Leased Property to the
potential purchaser at the appropriate closing date. Each Lessee shall
allow Lessor, the Agent and any potential purchaser reasonable access
during normal business hours to any Leased Property for the purpose of
inspecting the same.
(e) In connection with any such sale of the Leased Properties, each
Lessee will provide to the purchaser all customary "seller's" indemnities
reasonably requested by the potential purchaser (taking into account the
location and nature of the Leased Properties), representations and
warranties regarding title, absence of Liens (except Lessor Liens) and the
condition of the Leased Properties. Each Lessee shall fulfill all of the
requirements set forth in clause (b) of Section 14.4, and such requirements
---------- ------------
are incorporated herein by
26
reference. As to Lessor, any such sale shall be made on an "as is, with all
faults" basis without representation or warranty by Lessor, other than the
absence of Lessor Liens.
(f) Each Lessee shall, on such Lease Termination Date, and at its own
cost, transfer possession of the Leased Properties leased by it to the
Lessor or the independent purchaser thereof, in each case by surrendering
the same into the possession of Lessor or such purchaser, as the case may
be, free and clear of all Liens other than Lessor Liens, in as good
condition as it was on the Completion Date therefor in the case of new
Construction, or the Funding Date (as modified by Alterations permitted by
this Lease), ordinary wear and tear excepted, and in compliance in all
material respects with Applicable Law.
(g) Each Lessee shall, on and within a reasonable time before and
after the Lease Termination Date, cooperate with Lessor and the independent
purchaser of any Leased Property leased by such Lessee in order to
facilitate the ownership and operation by such purchaser of such Leased
Property after the Lease Termination Date, which cooperation shall include
the following, all of which such Lessee shall do on or before the Lease
Termination Date or as soon thereafter as is reasonably practicable:
providing all books and records regarding the related Lessee's maintenance
of such Leased Property and all know-how, data and technical information
relating thereto, providing a copy of the Plans and Specifications within
the possession of such Lessee or Hughes, granting or assigning all licenses
(to the extent assignable) necessary for the operation and maintenance of
such Leased Property, and cooperating in seeking and obtaining all
necessary Governmental Action. The obligations of such Lessee under this
Article XIV shall survive the expiration or termination of this Lease.
-----------
ARTICLE XV.
LESSEE'S EQUIPMENT
------------------
After any repossession of any Leased Property (whether or not this Lease
has been terminated), the related Lessee, at its expense and so long as such
removal of such trade fixture, personal property or equipment shall not result
in a violation of Applicable Law, shall, within a reasonable time after such
repossession or within ninety (90) days after such Lessee's receipt of Lessor's
written request (whichever shall first occur), remove all of such Lessee's trade
fixtures, personal property and equipment from such Leased Property (to the
extent that the same can be readily removed from such Leased Property without
causing material damage to such Leased Property); provided, however, that such
-------- -------
Lessee shall not remove any such trade fixtures, personal property or equipment
that has been financed by Lessor under the Operative Documents or otherwise
constituting Leased Property (or that constitutes a replacement of such
property). Any of a Lessee's trade fixtures, personal property and equipment
not so removed by such Lessee within such period shall be considered abandoned
by such Lessee, and title thereto shall without
27
further act vest in Lessor, and may be appropriated, sold, destroyed or
otherwise disposed of by Lessor without notice to any Lessee and without
obligation to account therefor and the related Lessee will pay Lessor, upon
written demand, all reasonable costs and expenses incurred by Lessor in
removing, storing or disposing of the same and all costs and expenses incurred
by Lessor to repair any damage to such Leased Property caused by such removal.
Each Lessee will immediately repair at its expense all damage to such Leased
Property caused by any such removal (unless such removal is effected by Lessor,
in which event such Lessee shall pay all reasonable costs and expenses incurred
by Lessor for such repairs). Lessor shall have no liability in exercising
Lessor's rights under this Article XV, nor shall Lessor be responsible for any
----------
loss of or damage to any Lessee's personal property and equipment.
ARTICLE XVI.
RIGHT TO PERFORM FOR LESSEE
---------------------------
If any Lessee shall fail to perform or comply with any of its agreements
contained herein and either such failure shall continue for a period of 10 or
more days after notice to Hughes or to such Lessee by Lessor or the Agent or
such failure has resulted in immediate material danger to any Leased Property or
Lessor's or the Agent's interest therein, Lessor, upon reasonable notice to
Hughes or such Lessee, may perform or comply with such agreement, and Lessor
shall not thereby be deemed to have waived any default caused by such failure,
and the amount of such payment and the amount of the expenses of Lessor
(including actual and reasonable attorneys' fees and expenses) incurred in
connection with such payment or the performance of or compliance with such
agreement, as the case may be, shall be deemed Supplemental Rent, payable by the
related Lessee to Lessor within ten (10) days after written demand therefor.
ARTICLE XVII.
MISCELLANEOUS
-------------
Section XVII.1 Reports. To the extent required under Applicable Law and
-------
to the extent it is reasonably practical for a Lessee to do so, such Lessee
shall prepare and file in timely fashion, or, where such filing is required to
be made by Lessor or it is otherwise not reasonably practical for a Lessee to
make such filing, Lessee shall prepare and deliver to Lessor (with a copy to the
Agent) within a reasonable time prior to the date for filing and Lessor shall
file, any material reports with respect to the condition or operation of such
Leased Property that shall be required to be filed with any Governmental
Authority.
Section XVII.2 Binding Effect; Successors and Assigns; Survival. The
------------------------------------------------
terms and provisions of this Lease, and the respective rights and obligations
hereunder of Lessor and the Lessees, shall be binding upon their respective
successors, legal representatives and assigns (including, in the case of Lessor,
any Person to whom Lessor may transfer any Leased Property
28
or any interest therein in accordance with the provisions of the Operative
Documents), and inure to the benefit of their respective permitted successors
and assigns, and the rights granted hereunder to the Agent and the Lenders shall
inure (subject to such conditions as are contained herein) to the benefit of
their respective permitted successors and assigns. Each Lessee hereby
acknowledges that Lessor has assigned all of its right, title and interest to,
in and under this Lease to the Agent and the Lenders pursuant to the Loan
Agreement and related Operative Documents, and that all of Lessor's rights
hereunder may be exercised by the Agent.
Section XVII.3 Quiet Enjoyment. Lessor covenants that it will not
---------------
interfere in the related Lessee's or any of its permitted sublessees' quiet
enjoyment of the Leased Properties in accordance with this Lease during the
Lease Term, so long as no Event of Default has occurred and is continuing. Such
right of quiet enjoyment is independent of, and shall not affect, Lessor's
rights otherwise to initiate legal action to enforce the obligations of the
Lessees under this Lease.
Section XVII.4 Notices. Unless otherwise specified herein, all notices,
-------
offers, acceptances, rejections, consents, requests, demands or other
communications to or upon the respective parties hereto shall be in writing and
shall be deemed to have been given as set forth in Section 8.2 of the Master
Agreement. All such notices, offers, acceptances, rejections, consents,
requests, demands or other communications shall be addressed as follows or to
such other address as any of the parties hereto may designate by written notice:
If to Lessor: AFG Services, L.P.
2808 Fairmount
Suite 250
Dallas, Texas 75201
Attn: Stephen Brookshire
Facsimile: 214/871-2799
If to Hughes
or any other Lessee: Hughes Supply, Inc.
20 North Orange Avenue, Suite 200
Orlando, Florida 32801
Attn: Mark Scimeca, Esq., Associate General Counsel
Facsimile: 407/649-3018
with a copy to: Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Attn: Kathi Borkholder, Esq.
Facsimile: 407/843-4444
If to Agent: SunTrust Bank
200 South Orange Avenue
29
Mail Code 1106
Orlando, Florida 32801
Attn: Bill Barr
Facsimile: 407/237-4076
with a copy to: SunTrust Equitable Securities Corporation
303 Peachtree Street, 24th Floor
MC 3951
Atlanta, Georgia 30308
Attn: Robert Kennedy
Facsimile: 404/230-1344
If to a Lender, to the address provided in the Master Agreement.
Section XVII.5 Severability. Any provision of this Lease that shall be
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, and Lessee shall remain
liable to perform its obligations hereunder except to the extent of such
unenforceability. To the extent permitted by Applicable Law, each Lessee hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
Section XVII.6 Amendment; Complete Agreements. Neither this Lease nor any
------------------------------
of the terms hereof may be terminated, amended, supplemented, waived or modified
orally, except by an instrument in writing signed by Lessor and Hughes in
accordance with the provisions of Section 8.4 of the Master Agreement. This
Lease, together with the applicable Lease Supplement and the other Operative
Documents, is intended by the parties as a final expression of their lease
agreement and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations and representations between the parties having been
incorporated herein and therein. No course of prior dealings between the parties
or their officers, employees, agents or Affiliates shall be relevant or
admissible to supplement, explain, or vary any of the terms of this Lease or any
other Operative Document. Acceptance of, or acquiescence in, a course of
performance rendered under this or any prior agreement between the parties or
their Affiliates shall not be relevant or admissible to determine the meaning of
any of the terms of this Lease or any other Operative Document. No
representations, undertakings, or agreements have been made or relied upon in
the making of this Lease other than those specifically set forth in the
Operative Documents.
Section XVII.7 Construction. This Lease shall not be construed more
------------
strictly against any one party, it being recognized that both of the parties
hereto have contributed substantially and materially to the preparation and
negotiation of this Lease.
30
Section XVII.8 Headings. The Table of Contents and headings of the
--------
various Articles and Sections of this Lease are for convenience of reference
only and shall not modify, define or limit any of the terms or provisions
hereof.
Section XVII.9 Counterparts. This Lease may be executed by the
------------
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section XVII.10 GOVERNING LAW. THIS LEASE SHALL IN ALL RESPECTS BE
-------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
EXCEPT AS TO MATTERS RELATING TO THE CREATION OF THE LEASEHOLD OR MORTGAGE
ESTATES HEREUNDER, AND THE EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT THERETO,
WHICH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATES IN WHICH SUCH ESTATES ARE LOCATED.
Section XVII.11 Discharge of Lessee's Obligations by its Subsidiaries
-----------------------------------------------------
or Affiliates. Lessor agrees that performance of any Lessee's obligations
- -------------
hereunder by one or more of such Lessee's Subsidiaries or Affiliates shall
constitute performance by Lessee of such obligations to the same extent and with
the same effect hereunder as if such obligations were performed by such Lessee,
but no such performance shall excuse any Lessee from any obligation not
performed by it or on its behalf under the Operative Documents.
Section XVII.12 Liability of Lessor Limited. Except as otherwise
---------------------------
expressly provided below in this Section 17.12, it is expressly understood and
-------------
agreed by and between each Lessee, Lessor and their respective successors and
assigns that nothing herein contained shall be construed as creating any
liability of Lessor or any of its Affiliates or any of their respective
officers, directors, employees or agents, individually or personally, for any
failure to perform any covenant, either express or implied, contained herein,
all such liability (other than that resulting from Lessor's gross negligence or
willful misconduct, except to the extent imputed to Lessor by virtue of any
Lessee's action or failure to act), if any, being expressly waived by each
Lessee and by each and every Person now or hereafter claiming by, through or
under any Lessee, and that, so far as Lessor or any of its Affiliates or any of
their respective officers, directors, employees or agents, individually or
personally, is concerned, each Lessee and any Person claiming by, through or
under any Lessee shall look solely to the right, title and interest of Lessor in
and to the Leased Properties and any proceeds from Lessor's sale or encumbrance
thereof (provided, however, that no Lessee shall be entitled to any double
-------- -------
recovery) for the performance of any obligation under this Lease and under the
Operative Documents and the satisfaction of any liability arising therefrom
(other than that resulting from Lessor's gross negligence or willful misconduct,
except to the extent imputed to Lessor by virtue of any Lessee's action or
failure to act).
31
Section XVII.13 Estoppel Certificates. Each party hereto agrees that
---------------------
at any time and from time to time during the Lease Term, it will promptly, but
in no event later than thirty (30) days after request by the other party hereto,
execute, acknowledge and deliver to such other party or to any prospective
purchaser (if such prospective purchaser has signed a commitment or letter of
intent to purchase any Leased Property or any part thereof or any Note),
assignee or mortgagee or third party designated by such other party, a
certificate stating (a) that this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as
modified, and identifying the modification agreements); (b) the date to which
Basic Rent has been paid; (c) whether or not there is any existing default by
any Lessee in the payment of Basic Rent or any other sum of money hereunder, and
whether or not there is any other existing default by either party with respect
to which a notice of default has been served, and, if there is any such default,
specifying the nature and extent thereof; (d) whether or not, to the knowledge
of the signer, there are any setoffs, defenses or counterclaims against
enforcement of the obligations to be performed hereunder existing in favor of
the party executing such certificate and (e) other items that may be reasonably
requested; provided that no such certificate may be requested unless the
--------
requesting party has a good faith reason for such request.
Section XVII.14 No Joint Venture. Any intention to create a joint
----------------
venture, partnership or other fiduciary relationship between Lessor and any
Lessee is hereby expressly disclaimed.
Section XVII.15 No Accord and Satisfaction. The acceptance by Lessor
--------------------------
of any sums from any Lessee (whether as Basic Rent or otherwise) in amounts
which are less than the amounts due and payable by the Lessees hereunder is not
intended, nor shall be construed, to constitute an accord and satisfaction of
any dispute between Lessor and any Lessee regarding sums due and payable by any
Lessee hereunder, unless Lessor specifically deems it as such in writing.
Section XVII.16 No Merger. In no event shall the leasehold interests,
---------
estates or rights of any Lessee hereunder, or of the holder of any Notes secured
by a security interest in this Lease, merge with any interests, estates or
rights of Lessor in or to the Leased Properties, it being understood that such
leasehold interests, estates and rights of each Lessee hereunder, and of the
holder of any Notes secured by a security interest in this Lease, shall be
deemed to be separate and distinct from Lessor's interests, estates and rights
in or to the Leased Properties, notwithstanding that any such interests, estates
or rights shall at any time or times be held by or vested in the same person,
corporation or other entity.
Section XVII.17 Survival. The obligations of the parties to be
--------
performed under this Lease prior to the Lease Termination Date and the
obligations of the parties pursuant to Articles III, X, XI, XIII, Sections 14.2,
------------ - -- ---- -------------
14.3, 14.4, 14.5, 14.8, Articles XV, and XVI, and Sections 17.10 and 17.12 shall
- ---- ---- ---- ---- ----------- --- -------------- -----
survive the expiration or termination of this Lease. The extension of any
32
applicable statute of limitations by Lessor, any Lessee, the Agent or any
Indemnitee shall not affect such survival.
Section XVII.18 Chattel Paper. To the extent that this Lease
-------------
constitutes chattel paper (as such term is defined in the Uniform Commercial
Code in any applicable jurisdiction), no security interest in this Lease may be
created through the transfer or possession of any counterpart other than the
sole original counterpart, which shall be identified as the original counterpart
by the receipt of the Agent.
Section XVII.19 Time of Essence. Time is of the essence of this Lease.
---------------
Section XVII.20 Recordation of Lease. Each Lessee will, at its
--------------------
expense, cause this Lease or a memorandum of lease in form and substance
reasonably satisfactory to Lessor and such Lessee (if permitted by Applicable
Law) to be recorded in the proper office or offices in the States and the
municipalities in which the Land is located.
Section XVII.21 Investment of Security Funds. The parties hereto agree
----------------------------
that any amounts not payable to a Lessee pursuant to any provision of Article
-------
VIII, X or XIV or this Section 17.21 shall be held by the Agent (or Lessor if
- ---- - --- -------------
the Loans have been fully paid) as security for the obligations of the Lessees
under this Lease and the Master Agreement and of Lessor under the Loan
Agreement. At such time as such amounts are payable to the Lessee, such amounts,
net of any amounts previously applied to the Lessees' obligations hereunder or
under the Master Agreement (which application is hereby agreed to by Lessee),
shall be paid to the related Lessee. Any such amounts which are held by the
Agent (or Lessor if the Loans have been fully paid) pending payment to a Lessee
shall until paid to such Lessee, as provided hereunder or until applied against
the Lessees' obligations herein and under the Master Agreement and distributed
as provided in the Loan Agreement or herein (after the Loan Agreement is no
longer in effect) in connection with any exercise of remedies hereunder, be
invested by the Agent or Lessor, as the case may be, as directed from time to
time in writing by Lessee (provided, however, if an Event of Default has
-------- -------
occurred and is continuing it will be directed by the Agent or, if the Loans
have been fully paid, Lessor) and at the expense and risk of the Lessees, in
Permitted Investments. Any gain (including interest received) realized as the
result of any such investment (net of any fees, commissions and other expenses,
if any, incurred in connection with such investment) shall be applied in the
same manner as the principal invested. Lessee upon demand shall pay to the Agent
or Lessor, as appropriate, the amount of any loss incurred in connection with
all such investments and the liquidation thereof.
Section XVII.22 Ground Leases. Each Lessee will, at its expense,
-------------
timely perform all of the obligations of Lessor, in its capacity as ground
lessee, under each Ground Lease and, if requested by Lessor, shall provide
satisfactory evidence to Lessor of such performance.
33
Section XVII.23 Land and Building. If the cost of the Raw Land related
-----------------
to any Leased Property exceeds 25% of the projected Leased Property Balance for
such Leased Property as set forth in the Construction Budget for such Leased
Property, the Raw Land and the Building related to such Leased Property shall be
leased under separate Lease Supplements. If any Building and the Raw Land on
which such Building is located are subject to separate Lease Supplements, at any
time that the related Lessee exercises an option to purchase such Building or
such Raw Land, or to renew this Lease with respect to such Building or such Raw
Land, or purchases such Building or such Land as a result of an Event of Loss,
an Event of Taking or an Event of Default, such purchase or renewal shall be
made simultaneously with respect to all of such Building and such Raw Land.
Section XVII.24 Joint and Several. Each obligation of each Lessee
-----------------
hereunder shall be a joint and several obligation of all of the Lessees.
Section XVII.25 IDB Documentation. If any Leased Property is subject
-----------------
to an IDB Lease, this Lease shall be deemed to be a sublease. Each Lessee hereby
agrees to perform all of its obligations and all obligations of Lessor under all
IDB Documentation related to any Leased Property. In the event that a Lessee
purchases any Leased Property that is the subject of IDB Documentation, such
Lessee shall prepay, or cause to be prepaid, the Bonds related to such Leased
Property or shall assume all obligations of the Lessor related to such IDB
Documentation and cause the Lessor to be released therefrom pursuant to
documentation reasonably satisfactory to the Lessor.
[Signature page follows]
34
IN WITNESS WHEREOF, the undersigned have each caused this Lease Agreement
to be duly executed and delivered and attested by their respective officers
thereunto duly authorized as of the day and year first above written.
Witnessed: HUGHES SUPPLY, INC., as a Lessee
By: ______________________________ By:______________________________
Name:______________________ Name:_________________________
Title:________________________
By: ______________________________
Name:______________________
LEASE
AGREEMENT
S-1 OPERATING LEASE
ATLANTIC FINANCIAL GROUP, LTD.,
as Lessor
By: Atlantic Financial Managers, Inc.,
its General Partner
Witnessed:
By:_______________________ By:___________________________
Name:___________________ Name: Stephen Brookshire
Title: President
By:_______________________
Name:___________________
LEASE
AGREEMENT
S-2 OPERATING LEASE
STATE OF FLORIDA)
) ss.:
COUNTY OF ORANGE )
The foregoing instrument was acknowledged before me this _____ day of
__________, 2001, by___________ , as___________ , of HUGHES SUPPLY, INC., a
Florida corporation, on behalf of said corporation. He is personally known to me
and did not take an oath.
[Notarial Seal] ______________________________
Notary Signature
Printed Name
Notary Public, State of Florida
Commission Number:
My commission expires:
LEASE
AGREEMENT
N-1 OPERATING LEASE
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease Agreement was acknowledged before me, the
undersigned Notary Public, in the County of ______________, ____ ____, this
_____ day of __________, _______________, by _____________________, as
____________________ of Atlantic Financial Group, Ltd., on behalf of such
partnership.
[Notarial Seal] ___________________________
Notary Public
My commission expires: _____________
LEASE
AGREEMENT
OPERATING LEASE
N-2
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of the date hereof.
SUNTRUST BANK,
as the Agent
By:_____________________
Name:________________
Title:_______________
LEASE
AGREEMENT
OPERATING LEASE
N-3
Recording requested by EXHIBIT A TO
and when recorded mail to: THE LEASE
---------
_____________________________
_____________________________
_____________________________
_____________________________
- --------------------------------------------------------------------------------
LEASE SUPPLEMENT NO. __ AND MEMORANDUM OF LEASE
THIS LEASE SUPPLEMENT NO. __ AND MEMORANDUM OF LEASE (this "Lease
-----
Supplement") dated as of [ ], between ATLANTIC FINANCIAL GROUP, LTD., as lessor
- ----------
(the "Lessor"), and [HUGHES SUPPLY, INC., a Florida corporation,] as lessee (the
------
"Related Lessee").
--------------
WHEREAS Lessor is the owner of the Land described on Schedule I hereto
----------
and wishes to lease the Land together with any Building and other improvements
thereon or which thereafter may be constructed thereon pursuant to the Lease to
Lessee; and
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions; Interpretation. For purposes of this Lease
---------------------------
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix A to the Master Lease Agreement,
dated as of June 22, 2001 (as amended and supplemented from time to time, the
"Lease"), among the Lessees named therein and Lessor; and the rules of
-----
interpretation set forth in Appendix A to the Lease shall apply to this Lease
Supplement.
SECTION 2. The Properties. Attached hereto as Schedule I is the
--------------
description of certain Land (the "Subject Property"). Effective upon the
----------------
execution and delivery of this Lease Supplement by Lessor and Lessee, such Land,
together with any Building and other improvements thereon or which thereafter
may be constructed thereon shall be subject to the terms and provisions of the
Lease and Lessor hereby grants, conveys, transfers and assigns to the Related
Lessee those interests, rights, titles, estates, powers and privileges provided
for in the Lease with respect to the Subject Property.
A-1
SECTION 3. Amendments to Lease with Respect to Subject Property.
----------------------------------------------------
Effective upon the execution and delivery of this Lease Supplement by Lessor and
the Related Lessee, the following terms and provisions shall apply to the Lease
with respect to the Subject Property:
[Insert Applicable Sections per Local Law
as contemplated by the Master Agreement]
SECTION 4. Ratification; Incorporation. Except as specifically modified
---------------------------
hereby, the terms and provisions of the Lease are hereby ratified and confirmed
and remain in full force and effect. The terms of the Lease (as amended by this
Lease Supplement) are by this reference incorporated herein and made a part
hereof.
SECTION 5. Original Lease Supplement. The single executed original of
-------------------------
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the original
executed counterpart of this Lease Supplement (the "Original Executed
-----------------
Counterpart"). To the extent that this Lease Supplement constitutes chattel
- -----------
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY
-------------
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF FLORIDA, BUT EXCLUDING
ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES OF SUCH STATE, EXCEPT AS TO
MATTERS RELATING TO THE CREATION OF THE LEASEHOLD ESTATES HEREUNDER, AND THE
EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT THERETO, WHICH SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE IN WHICH SUCH ESTATES ARE
LOCATED.
SECTION 7. Counterpart Execution. This Lease Supplement may be executed
---------------------
in any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
A-2
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
Witnessed: ATLANTIC FINANCIAL GROUP, LTD.
as the Lessor
By:________________________ By: Atlantic Financial Managers,
Name: Inc., its General Partner
By:________________________ By:_____________________________
Name: Name:
Title:
Witnessed: [HUGHES SUPPLY, INC.], as Related
Lessee
By:________________________ By:______________________________
Name: Name:
Title:
By:____________________________
Name:
S-1
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of ______________, ____ ____, this
_____ day of __________, _______________, by _____________________, as
____________________ of Atlantic Financial Group, Ltd., on behalf of such
partnership.
[Notarial Seal] ___________________________
Notary Public
My commission expires: _____________
N-1
STATE OF FLORIDA )
) ss.:
COUNTY OF ORANGE )
The foregoing instrument was acknowledged before me this _____ day of
__________, 2001, by ___________, as ___________ , of HUGHES SUPPLY, INC., a
Florida corporation, on behalf of said corporation. He is personally known to me
and did not take an oath.
[Notarial Seal] ______________________________
Notary Signature
_____________________
Printed Name
Notary Public, State of Florida
Commission Number:
My commission expires:
N-2
Receipt of this original counterpart of the foregoing Lease Supplement is hereby
acknowledged as of the date hereof.
SUNTRUST BANK,
as the Agent
By: ___________________
Name:
Title:
S-3