Exhibit 10.24
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MASTER LEASE AGREEMENT
Dated as of September 18, 2001
between
ATLANTIC FINANCIAL GROUP, LTD.
(registered to do business in Missouri as Atlantic Financial Group, L.P.),
as Lessor,
and
EDWARD D. JONES & CO., L.P.,
as Lessee
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TABLE OF CONTENTS
(Lease Agreement)
Page
ARTICLE I DEFINITIONS................................................ 1
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ARTICLE II LEASE OF LEASED PROPERTY.................................. 1
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Section 2.1 Restatement of Bridge Lease; Acceptance and Lease of
Property ................................................ 1
Section 2.2 Acceptance Procedure..................................... 2
ARTICLE III RENT .................................................... 2
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Section 3.1 Basic Rent .............................................. 2
Section 3.2 Supplemental Rent........................................ 2
Section 3.3 Method of Payment........................................ 3
Section 3.4 Late Payment ............................................ 3
Section 3.5 Net Lease; No Setoff, Etc. .............................. 3
Section 3.6 Certain Taxes ........................................... 4
Section 3.7 Utility Charges ......................................... 5
ARTICLE IV WAIVERS .................................................. 5
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ARTICLE V LIENS; EASEMENTS; PARTIAL CONVEYANCES...................... 6
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ARTICLE VI MAINTENANCE AND REPAIR; ALTERATIONS, MODIFICATIONS AND
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ADDITIONS............................................... 7
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Section 6.1 Maintenance and Repair; Compliance With Law.............. 7
Section 6.2 Improvements and Alterations............................. 8
Section 6.3 Title to Alterations .................................... 9
Section 6.4 Lessee's Personal Property .............................. 10
ARTICLE VII USE...................................................... 11
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ARTICLE VIII INSURANCE............................................... 11
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ARTICLE IX ASSIGNMENT AND SUBLEASING................................. 12
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ARTICLE X LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE.................. 13
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Section 10.1 Event of Loss ......................................... 13
Section 10.2 Event of Taking........................................ 13
Section 10.3 Casualty............................................... 14
Section 10.4 Condemnation........................................... 14
Section 10.5 Verification of Restoration and Rebuilding............. 14
Section 10.6 Application of Payments................................ 15
Section 10.7 Prosecution of Awards.................................. 16
Section 10.8 Application of Certain Payments Not Relating to an
Event of Taking........................................ 16
Section 10.9 Other Dispositions .................................... 17
Section 10.10 No Rent Abatement...................................... 17
ARTICLE XI INTEREST CONVEYED TO LESSEE............................... 17
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ARTICLE XII EVENTS OF DEFAULT ....................................... 17
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ARTICLE XIII ENFORCEMENT ............................................ 23
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Section 13.1 Remedies................................................ 23
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Section 13.2 Remedies Cumulative; No Waiver; Consents................ 25
Section 13.3 Purchase Upon an Event of Default....................... 26
ARTICLE XIV SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL..... 26
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Section 14.1 Lessee's Option to Purchase............................ 26
Section 14.2 Conveyance to Lessee................................... 26
Section 14.3 Acceleration of Purchase Obligation ................... 27
Section 14.4 Determination of Purchase Price ....................... 27
Section 14.5 Purchase Procedure..................................... 27
Section 14.6 Option to Remarket..................................... 28
Section 14.7 Rejection of Sale ..................................... 30
Section 14.8 Return of Leased Property ............................. 30
Section 14.9 Renewal................................................ 31
Section 14.10 Environmental Report................................... 32
ARTICLE XV LESSEE'S EQUIPMENT........................................ 32
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ARTICLE XVI RIGHT TO PERFORM FOR LESSEE ............................. 33
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ARTICLE XVII MISCELLANEOUS........................................... 33
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Section 17.1 Reports ............................................... 33
Section 17.2 Binding Effect; Successors and Assigns................. 33
Section 17.3 Quiet Enjoyment ....................................... 33
Section 17.4 Notices ............................................... 34
Section 17.5 Severability .......................................... 34
Section 17.6 Amendment; Complete Agreements......................... 34
Section 17.7 Construction........................................... 35
Section 17.8 Headings .............................................. 35
Section 17.9 Counterparts........................................... 35
Section 17.10 GOVERNING LAW.......................................... 35
Section 17.11 Reserved............................................... 35
Section 17.12 Liability of the Lessor Limited ....................... 35
Section 17.13 Estoppel Certificates ................................. 36
Section 17.14 No Joint Venture ...................................... 36
Section 17.15 No Accord and Satisfaction ............................ 36
Section 17.16 No Merger.............................................. 36
Section 17.17 Survival .............................................. 37
Section 17.18 Chattel Paper.......................................... 37
Section 17.19 Time of Essence........................................ 37
Section 17.20 Recordation of Lease .................................. 37
Section 17.21 Investment of Security Funds .......................... 37
Section 17.22 Bond Lease............................................. 38
Section 17.23 Land and Building...................................... 38
EXHIBIT A Lease Supplement
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THIS MASTER LEASE AGREEMENT (as from time to time amended,
supplemented, or otherwise modified from time to time, this "Lease"),
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dated as of September 18, 2001, is among ATLANTIC FINANCIAL GROUP, LTD.,
a Texas limited partnership (registered to do business in Missouri as
Atlantic Financial Group, L.P.) (together with its successors and
assigns hereunder, "Lessor"), as Lessor, and EDWARD D. JONES & CO.,
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L.P., a Missouri limited partnership (the "Lessee"), as Lessee.
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PRELIMINARY STATEMENT
A. Pursuant to the Bridge Lease, the Lessor acquired a
leasehold interest in the Leased Property specified by the Construction
Agent and is subleasing the same to the Lessee, subject to the Bond
Lease.
B. Pursuant to this Lease, the Lessor and the Lessee desire to
restate and amend the Bridge Lease, and the Lessor desires to sublease
to the Lessee, and the Lessee desires to sublease from the Lessor, the
Leased Property, as described in the Lease Supplement.
C. The Construction Agent will construct, or cause to be
constructed, the Building on the Land, and the Building, as constructed,
will become part of the property subject to the Bond Lease and will,
likewise, become part of the 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, the Lessor and the Lessee hereby agree as follows:
ARTICLE I
DEFITIONS
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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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and the rules of interpretation set forth in Appendix A shall apply to
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this Lease.
ARTICLE II
LEASE OF LEASED PROPERTY
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Section 2.1 Restatement of Bridge Lease; Acceptance and Lease of
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Property. On the Closing Date, the Lessor, subject to the satisfaction
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or waiver of the conditions set forth in Article 3 of the Master
Agreement, and the Lessee hereby agree that the Bridge Lease is amended,
restated and replaced in its entirety by the terms, conditions and
provisions of this Lease, and the Lessor shall simultaneously sublease
to the Lessee for the Lease Term, the Lessor's interest in the Leased
Property, subject to the Bond Lease. The Lessee hereby agrees, expressly
for the direct benefit of the Lessor, commencing on the Closing Date,
for the Lease Term, to sublease from the Lessor the Lessor's interest in
the Leased Property, subject to the Bond Lease.
Section 2.2 Acceptance Procedure. The Lessor hereby authorizes one
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or more employees of the Lessee, to be designated by the Lessee, as the
authorized representative or representatives of the Lessor to accept
delivery on behalf of the Lessor of the Leased Property. The Lessee
hereby agrees that such acceptance of delivery by such authorized
representative or representatives and the execution and delivery by the
Lessee on the Closing Date for property to be subleased hereunder of the
Lease Supplement in substantially the form of Exhibit A hereto,
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appropriately completed (the "Lease Supplement"), shall, without further
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act, constitute the irrevocable acceptance by the Lessee of the Leased
Property for all purposes of this Lease and the other Operative
Documents on the terms set forth therein and herein, and that the Leased
Property, together with the Building 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 the Closing Date. The demise and sublease
of the Land and the Building pursuant to this Section 2.2 shall include
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any additional right, title or interest in the Land and the Building
which may at any time be acquired by the Lessor, the intent being that
all right, title and interest of the Lessor in and to the Land and the
Building shall at all times be demised and leased to the Lessee
hereunder.
ARTICLE III
RENT
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Section 3.1 Basic Rent. Beginning with and including the first
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Payment Date occurring after the Closing Date, the Lessee shall pay to
the Agent the Basic Rent for the Leased Property, in installments,
payable in arrears on each Payment Date during the Lease Term, subject
to Section 2.3(c) of the Master Agreement.
Section 3.2 Supplemental Rent. The Lessee shall pay to the Agent,
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or 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 the 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. Without limiting the generality of the foregoing, the Lessor and
the Lessee acknowledge and agree that, in accordance with the Bond
Lease, the Lessee, on behalf of the Lessor, shall pay to the Bond
Trustee, as Supplemental Rent, as and when the same become due under the
Bond Lease all Rental Payments (as defined in the Bond Lease), and, to
the extent such Rental Payments are received by the Bond Trustee on or
before 11:00 a.m., Bond Trustee's local time, on the same Business Day,
otherwise on the next succeeding Business Day following receipt of such
Rental Payments by the Bond Trustee, the Bond Trustee, at the direction
of the Bond Owner, shall disburse the interest component (and the
principal component to the extent the same is paid in immediately
available funds as provided in Section 5.1(a) of the Bond Lease) of such
Rental Payments to the Lessee. All Supplemental Rent to be paid pursuant
to this Section 3.2 shall be payable in the type of funds and in the
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manner set forth in Section 3.3, provided, however, Rental Payments due
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under the Bond Lease shall be payable in the manner set forth in Section
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5.1 of the Bond Lease.
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Section 3.3 Method of Payment. Basic Rent shall be paid to the
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Agent, and Supplemental Rent (including amounts due under Article XIV
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hereof, but excluding the Rental Payments under the Bond Lease which
shall be payable in the manner set forth in Section 5.1 of the Bond
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Lease and Section 3.2 hereof) shall be paid to the Agent (or to such
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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 Lessee,
and at such place as the Agent (or such other Person) shall specify in
writing to the Lessee, which specifications by the Agent shall be given
by the Agent at least five (5) Business Days prior to the due date
therefor. Each payment of Rent (including payments under Article XIV
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hereof, but excluding the Rental Payments under the Bond Lease which
shall be payable in the manner set forth in Section 5.1 of the Bond
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Lease and Section 3.2 hereof) shall be made by the Lessee prior to 12:00
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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.
Section 3.4 Late Payment. If any Basic Rent shall not be paid on
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the date when due, the 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 3.5 Net Lease; No Setoff, Etc. This Lease is a net lease
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and notwithstanding any other provision of this Lease, the Lessee shall
pay all Basic Rent and Supplemental Rent, and all costs, charges, taxes
(other than taxes covered by the exclusion described in Section 7.4(b)
of the Master Agreement), assessments and other expenses foreseen or
unforeseen, for which the Lessee or any Indemnitee is or shall become
liable by reason of the Lessee's or such Indemnitee's estate, right,
title or interest in the Leased Property, or that are connected with or
arise out of the acquisition (except the initial costs of purchase by
the Lessor of its interest in the 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 Property 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 the 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 the 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 use of the Leased Property or any part
thereof, or the failure of the Leased Property to comply with all
Applicable Laws, including any inability to occupy or use the 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 the Leased Property or
any part
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thereof; (c) any restriction, prevention or curtailment of or
interference with any use of the Leased Property or any part thereof
including eviction; (d) any defect in title to or rights to the Leased
Property or any Lien on such title or rights or on the 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
the Lessor, the Agent or any Lender; (f) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or
other like proceedings relating to the Lessee, the Lessor, any Lender,
the Agent or any other Person, or any action taken with respect to this
Lease by any trustee or receiver of the Lessee, the Lessor, any Lender,
the Agent or any other Person, or by any court, in any such proceeding;
(g) any claim that the Lessee has or might have against any Person,
including without limitation, the Lessor, any vendor, manufacturer,
contractor of or for the Leased Property or any part thereof, the Agent,
any Governmental Authority, or any Lender; (h) any failure on the part
of the Lessor to perform or comply with any of the terms of this Lease,
any other Operative Document or of any other agreement; (i) any
invalidity or unenforceability or illegality or disaffirmance of this
Lease against or by the Lessee or any provision hereof or any of the
other Operative Documents or any provision of any thereof whether or not
related to the Transaction; (j) the impossibility or illegality of
performance by the Lessee, the 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 the Leased Property or any part thereof; or
(m) any other occurrence whatsoever, whether similar or dissimilar to
the foregoing, whether or not the Lessee shall have notice or knowledge
of any of the foregoing. Except as specifically set forth in Articles X
or XIV of this Lease, this Lease shall be noncancellable by the Lessee
in any circumstance whatsoever and the 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 the Lessee
hereunder. Except as otherwise provided in Section 3.2 hereof with
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respect to the Rental Payments due under the Bond Lease, each payment of
Rent made by the Lessee hereunder shall be final and the Lessee shall
not seek or have any right to recover all or any part of such payment
from the Lessor, the Agent, any Lender or any party to any agreements
related thereto for any reason whatsoever. The Lessee assumes the sole
responsibility for the condition, use, operation, maintenance, and
management of the Leased Property leased by it, and the Lessor shall
have no responsibility in respect thereof and shall have no liability
for damage to the property of either the Lessee or any subtenant of the
Lessee on any account or for any reason whatsoever, other than solely by
reason of the Lessor's willful misconduct or gross negligence.
Section 3.6 Certain Taxes. Without limiting the generality of
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Section 3.5, the Lessee agrees to pay when due all real estate taxes,
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personal property taxes, gross sales taxes, including any sales or lease
tax imposed upon the rental payments hereunder or under any sublease
permitted hereunder, 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)"), when the same shall be due and payable without penalty or
interest; provided, however, that this Section shall not apply to any of
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the taxes covered by the exclusion described in Section 7.4(b) of the
Master Agreement. It is the intention of the parties hereto that,
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insofar as the same may lawfully be done, the Lessor shall be, except as
specifically provided for herein, free from all expenses in any way
related to the Leased Property and the use and occupancy thereof. The
Lessee covenants to furnish the Lessor and the Agent, upon the Agent's
written request, within thirty (30) days after the last date when any
tax must be paid by the Lessee as provided in this Section 3.6, official
receipts of the appropriate taxing, authority or other proof
satisfactory to the Lessor, evidencing the payment thereof.
So long as no Event of Default has occurred and is continuing, the
Lessee may defer payment of a tax so long as the validity or the amount
thereof is being contested by the Lessee with diligence and in good
faith; provided, however, that the Lessee shall furnish to the Lessor
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and the Agent, if requested in writing by either the Lessor or the
Agent, a bond or other adequate security in an amount and on terms
reasonably satisfactory to the Lessor and the Agent and shall pay the
tax in sufficient time to prevent delivery of a tax deed. Such contest
shall be at the Lessee's sole cost and expense. The Lessee covenants to
indemnify and save harmless the Lessor, the Agent and each Lender from
any actual and reasonable costs or expenses incurred by the Lessor, the
Agent or any Lender as a result of such contest, which indemnification
shall survive the termination of this Lease.
Section 3.7 Utility Charges. The Lessee agrees to pay or cause to
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be 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 Property.
ARTICLE IV
WAIVERS
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During the Lease Term, the Lessor's interest in the Leased
Property, including the Building (whether or not completed) and the
Land, is demised and let by the Lessor "AS IS" subject to (a) the terms
and conditions of the Bond Lease and the Bond Deed of Trust, (b) the
rights of any parties in possession thereof, (c) the state of the title
thereto existing at the time the Lessor acquired its interest in the
Leased Property, (d) any state of facts which an accurate survey or
physical inspection might show (including the survey delivered on the
Closing Date), (e) all Applicable Laws, and (f) any violations of
Applicable Laws which may exist upon or subsequent to the commencement
of the Lease Term. THE LESSEE ACKNOWLEDGES THAT, ALTHOUGH THE LESSOR
WILL OWN AND HOLD LEASEHOLD TITLE TO THE LEASED PROPERTY, THE LESSOR IS
NOT RESPONSIBLE FOR THE DESIGN, DEVELOPMENT, BUDGETING AND CONSTRUCTION
OF THE BUILDING OR ANY ALTERATIONS. NEITHER THE 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 PROPERTY (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION OR
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WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED
PROPERTY (OR ANY PART THEREOF), ALL SUCH WARRANTIES BEING HEREBY
DISCLAIMED, AND NEITHER THE LESSOR, THE AGENT NOR ANY LENDER SHALL BE
LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE
OF THE LEASED PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY
APPLICABLE LAW, except that the Lessor hereby represents and warrants
that the Leased Property is and shall be free of the Lessor Liens. As
between the Lessor and the Lessee, each Lessee has been afforded full
opportunity to inspect the Leased Property, is satisfied with the
results of its inspections of the 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 the Lessor, the Agent or the Lenders on the one
hand, and the Lessee, on the other, are to be borne by the Lessee. The
provisions of this Article IV have been negotiated, and, except to the
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extent otherwise expressly stated, the foregoing provisions are intended
to be a complete exclusion and negation of any representations or
warranties by the Lessor, the Agent or the Lenders, express or implied,
with respect to the Leased Property, that may arise pursuant to any law
now or hereafter in effect, or otherwise.
ARTICLE V
LIENS; EASEMENTS; PARTIAL CONVEYANCES
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The Lessee shall not directly or indirectly create, incur or
assume, any Lien on or with respect to the 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
the Leased Property or by reason of labor or materials furnished or
claimed to have been furnished to the Lessee, or any of its contractors
or agents or Alterations constructed by the Lessee, except, in all
cases, Permitted Encumbrances.
Notwithstanding the foregoing paragraph, at the request of the
Lessee, and subject to the terms and conditions of the Bond Lease, the
Lessor shall, from time to time during the Lease Term and upon
reasonable advance written notice from the Lessee given in accordance
with Section 8.2 of the Master Agreement and 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 the Lessee's use, development and construction of the Leased
Property, (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 or any portion thereof, (iii) dedication or
transfer of portions of the Lessor's interest in the Land, not improved
with the 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 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
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zoning or other governmental requirements. The 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
Lessee, and the Lessee shall pay all actual and reasonable out-of-pocket
costs of the Lessor, the Agent and the Lenders in connection therewith
(including, without limitation, the reasonable fees of attorneys,
architects, engineers, planners, appraisers and other professionals
reasonably retained by the Lessor, the Agent or any Lender in connection
with any such action, and, when practicable, the Lessor will endeavor to
utilize the services of the same architect(s), engineer(s), planner(s)
and appraiser(s) used by the Agent and the Lenders, in connection with
the review of such requests),
(b) the requesting Lessee shall have delivered to the Lessor and
the Agent a certificate of a Responsible Officer of the Lessee stating
that:
(i) such action will not cause the Leased Property, the
Land or the 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 in any material respect with Applicable Laws;
and
(ii) such action will not materially reduce the Fair Market
Sales Value, utility or useful life of the Leased Property, the Land or
the Building nor the Lessor's interest therein; and
(c) in the case of any release or conveyance, if the Lessor, the
Agent or any Lender so reasonably requests, the Lessee will cause to be
issued and delivered to the Lessor and the Agent by the Title Insurance
Company an endorsement to the Title Policy pursuant to which the Title
Insurance Company agrees that its liability for the payment of any loss
or damage under the terms and provisions of the Title Policy will not be
affected by reason of the fact that a portion of the real property
referred to in Schedule A of the Title Policy has been released or
conveyed by the Lessor.
ARTICLE VI
MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS
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Section 6.1 Maintenance and Repair; Compliance With Law. The
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Lessee, at its own expense, shall at all times (a) maintain the 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 the same manner as other similar property owned or leased
by the 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 the Leased
Property in compliance in all material respects with, all Applicable
Laws and requirements of the Lessee's underwriters, and (c) make all
material repairs, replacements and renewals of the Leased Property or
any part thereof which may be required to keep the Leased
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Property in the condition required by the preceding clauses (a) and (b).
The Lessee shall perform the foregoing maintenance obligations
regardless of whether the Leased Property is occupied or unoccupied. The
Lessee waives any right that it may now have or hereafter acquire to (i)
require the Lessor, the Agent or any Lender to maintain, repair,
replace, alter, remove or rebuild all or any part of the Leased Property
or (ii) make repairs at the expense of the Lessor, the Agent or any
Lender pursuant to any Applicable Law or other agreements or otherwise.
NEITHER THE LESSOR (EXCEPT WITH RESPECT TO ANY LESSOR LIENS), THE AGENT
NOR ANY LENDER SHALL BE LIABLE TO THE LESSEE OR TO ANY CONTRACTORS,
SUBCONTRACTORS, LABORERS, MATERIALMEN, SUPPLIERS OR VENDORS FOR SERVICES
PERFORMED OR MATERIAL PROVIDED ON OR IN CONNECTION WITH THE LEASED
PROPERTY OR ANY PART THEREOF. Neither the Lessor, the Agent nor any
Lender shall be required to maintain, alter, repair, rebuild or replace
the Leased Property in any way.
Section 6.2 Improvements and Alterations.
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(a) In addition to the Lessee's obligations as Construction
Agent under the Construction Agency Agreement, on and after the
completion of Construction (i) the Lessee, at the Lessee's sole cost and
expense, shall make alterations, renovations, improvements and additions
to the Leased Property or any part thereof and substitutions and
replacements therefor (collectively, "Alterations") which are (A)
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necessary to repair or maintain the Leased Property in the condition
required by this Lease and the other Operative Documents; (B) necessary
in order for the Leased Property to be in compliance with Applicable
Laws; or (C) necessary to restore the Leased Property in all material
respects to its condition existing prior to a Casualty or Condemnation
to the extent required pursuant to Article X; and (ii) so long as no
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Potential Event of Default or Event of Default has occurred, the Lessee,
at the Lessee's sole cost and expense, may undertake Alterations to the
Leased Property so long as such Alterations comply with Applicable Laws
and with Section 6.1 and subsection (b) of this Section 6.2.
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(b) The making of any Alterations must be in compliance with the
following requirements:
(i) No Structural Alterations or Alterations with a cost
exceeding Two Hundred Fifty Thousand Dollars ($250,000) shall be made or
undertaken without the prior written consent of the Lessor and the Agent
(which consent shall not be unreasonably withheld or delayed), except
for Alterations required by Applicable Laws (provided that except in the
case of an emergency, the Lessee shall give the Lessor and the Agent at
least thirty (30) days prior written notice of such Alterations). If the
Lessee reasonably expects the cost of any Alterations to exceed
$250,000, the Lessee shall deliver to the Lessor and the Agent a brief
written narrative of the work to be performed prior to undertaking any
such Alteration.
(ii) No Alterations shall be undertaken in violation of the
terms of any restriction, easement, condition, covenant or other similar
agreement (including, without limitation, the Bond Lease) affecting
title to or binding on the Leased Property. The Lessee shall
8
procure when required and pay for, so far as the same may be required
from time to time, all permits and authorizations with regard to such
Alterations from all Governmental Authorities having jurisdiction. The
Lessor, at the Lessee's expense, and without any liability on the part
of the Lessor, shall join in the application for any such permit or
authorization and execute and deliver any document in connection
therewith, whenever such joinder is necessary or advisable.
(iii) The Alterations shall be completed in a good and
workmanlike manner and in compliance with all Applicable Laws then in
effect and the standards imposed by any insurance policies required to
be maintained hereunder or by any vendor, supplier or manufacturer in
order to maintain all warranties, and all Alterations must be located
solely on the Land or other property used in connection with the Leased
Property as to which the Lessor has an easement, license, lease,
sublease or other right or interest in real property reasonably
satisfactory to Agent for a term not less than the useful life of such
Alterations.
(iv) All Alterations shall, when completed, be of such a
character as to not adversely affect the Fair Market Sales Value,
utility, remaining economic useful life or residual value of the Leased
Property from the Fair Market Sales Value, utility, remaining economic
useful life or residual value thereof immediately prior to the making
thereof or, in the case of Alterations being made by virtue of a
Casualty or Condemnation, immediately prior to the occurrence of such
Casualty or Condemnation. If such Modifications have a cost exceeding
Two Hundred Fifty Thousand Dollars ($250,000), the Lessor or the Agent
may obtain a report from an independent engineer or engage an appraiser
of nationally recognized standing, at the Lessee's sole cost and
expense, to determine (by appraisal or other methods satisfactory to the
Agent) the projected Fair Market Sales Value of such item of Leased
Property as of the completion of the Alterations relating thereto.
(v) The Lessee shall have made adequate arrangements for
payment of the cost of all Alterations when due so that the Leased
Property shall at all times be free of Liens for labor and materials
supplied or claimed to have been supplied to the Leased Property, other
than Permitted Liens.
Section 6.3 Title to Alterations. Pursuant to the Bond Lease,
--------------------
title to the following described Alterations shall, without further act,
vest in the Issuer, shall be deemed to be leased by the Issuer to the
Lessor pursuant to the Bond Lease and shall be deemed to constitute a
part of the Leased Property and be subject to this Lease:
(a) Alterations that are in replacement of or in substitution
for a portion of any item of Leased Property;
(b) Alterations that are required to be made pursuant to the
terms of Section 6.2(a)(i) hereof; or
-----------------
9
(c) Alterations that, notwithstanding any repairs, replacements
or modifications by or on behalf of Lessee, are nonseverable or that
cannot be removed without damaging the Leased Property or any part
thereof.
The Lessee, at the Lessor's reasonable request, shall execute and
deliver any deeds, bills of sale, assignments or other documents of
conveyance reasonably necessary to evidence the vesting of title in and
to such Alterations to the Issuer.
Subject to the terms and conditions of the Bond Documents, if such
Alterations are not within any of the categories set forth in clauses
-------
(a) through (c) of this Section 6.3, then title to such Alterations
- --- --- -----------
shall vest in the Lessee and such Alterations shall not be deemed to be
Alterations that are part of the Leased Property.
Subject to the terms and conditions of the Bond Lease, all
Alterations to which the Lessee shall have title may be removed at any
time by the Lessee, so long as removal thereof shall not result in the
violation of any Applicable Laws or give rise to a Potential Event of
Default or an Event of Default, and no Potential Event of Default or
Event of Default then exists. The Lessee agrees to notify Lessor in
writing at least 30 days before it removes any such Alterations which
individually or in the aggregate had an original cost exceeding Two
Hundred Fifty Thousand Dollars ($250,000), and the Lessee shall at its
expense repair any damage to any item of Leased Property caused by the
removal of such Alterations. The Lessor (or the purchaser of the Leased
Property) may purchase from the Lessee any such Alterations (if not
already owned by the Lessor) that the Lessee intends to remove from the
Leased Property prior to the return of the Leased Property to the Lessor
or sale of the Leased Property, which purchase shall be at the Fair
Market Sales Value of such Alterations as determined by the Appraiser at
the time of such purchase. Title to any such Alterations shall vest in
the Lessor (or the purchaser of the applicable Leased Property) if not
removed from the Leased Property by the Lessee prior to the return of
the Leased Property to the Lessor or sale of the Leased Property.
Severable Alterations, title to which is vested in the Lessee, shall be
made available to the Lessor or its designee without cost during the
Lease Term and thereafter if the Leased Property is sold pursuant to the
Remarketing Option and the use thereof is necessary or useful for the
operation of the Leased Property in the manner and capacity operated at
or prior to the expiration of the Lease Term.
Section 6.4 Lessee's Personal Property. During the Lease Term, the
--------------------------
Lessee may from time to time own or hold under lease or other
arrangement from Persons other than the Lessor the Lessee's Personal
Property that is not subject to this Lease and does not constitute a
portion of the Leased Property. The Lessor shall from time to time
during the Lease Term, upon the reasonable request, and at the cost and
expense of the Lessee, acknowledge in writing to the Lessee or other
Persons that the Lessee's Personal Property is the property of the
Lessee or such other Person and is not part of the Leased Property and
that the Lessor has waived any present or future landlord's or other
Lien Lessor may have thereon.
10
ARTICLE VII
USE
---
Subject to the terms and conditions of the Bond Lease, the Lessee
may use the 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 the
Leased Property is located, provided that such use does not materially
--------
adversely affect the Fair Market Sales Value, utility, remaining useful
life or residual value of the 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.
The Lessee shall not commit or permit any waste of the Leased Property
or any material part thereof.
ARTICLE VIII
INSURANCE
---------
(a) At any time during which any part of the Building or any
Alteration is under construction and as to any part of the Building or
any Alteration under construction, the Lessee shall maintain, or cause
to be maintained, at its sole cost and expense, as a part of its blanket
policies or otherwise, "all risk" non-reporting completed value form of
builder's risk insurance.
(b) During the Lease Term, the Lessee shall maintain, at its
sole cost and expense, as a part of its blanket policies or otherwise,
insurance against loss or damage to the Building by fire and other
risks, including comprehensive boiler and machinery coverage, on terms
and in amounts no less favorable than insurance covering other similar
properties owned or leased by the Lessee and that are in accordance with
prudent industry practice, but in no event less than the replacement
cost of the Building from time to time.
(c) During the Lease Term, the Lessee shall maintain, at its
sole cost and expense, commercial general liability insurance with
respect to the Leased Property, as is ordinarily procured by prudent
Persons who own or operate similar properties in the same geographic
area. Such insurance shall be on terms and in amounts that are no less
favorable than insurance maintained by the Lessee or its Affiliates with
respect to similar properties that it owns or leases and that are in
accordance with prudent industry practice. Such insurance policies shall
also provide that the Lessee's insurance shall be considered primary
insurance. Nothing in this Article VIII shall prohibit the Lessor, the
------------
Agent or any Lender from carrying at its own expense other insurance on
or with respect to the Leased Property, provided that any insurance
--------
carried by the Lessor, the Agent or any Lender shall not prevent the
Lessee from carrying the insurance required hereby.
(d) Each policy of insurance maintained by the 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 the Lessee, except if, and for so long as an Event of
Default exists, all losses
11
shall be adjusted solely by, and all insurance proceeds shall be paid
solely to, the Agent (or the Lessor if the Loans have been fully paid)
for application pursuant to this Lease.
(e) On the Closing Date, on the Completion Date for the Leased
Property and on each anniversary of the Closing Date, the Lessee shall
furnish the Lessor with certificates showing the insurance required
under this Article VIII to be in effect and naming the 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 the 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. The Lessee shall provide
evidence to the 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 the Lessee pursuant
to this Article VIII shall (i) contain the waiver of any right of
------------
subrogation of the insurer against the Lessor, the Agent and the
Lenders, and (ii) provide that in respect of the interests of the
Lessor, the Agent and the Lenders, such policies shall not be
invalidated by any fraud, action, inaction or misrepresentation of the
Lessee or any other Person acting on behalf of the Lessee.
(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 the Leased Property is located.
(h) During the Lease Term, the Lessee, on behalf of the Lessor,
shall maintain, at the Lessee's sole cost and expense, any and all
insurance coverages required pursuant to the Bond Documents, including,
without limitation, the Bond Lease and the Bond Deed of Trust, and
otherwise comply at the Lessee's sole cost and expense, with any
provisions relating thereto in the Bond Documents, including, without
limitation, the Bond Lease and the Bond Deed of Trust.
ARTICLE IX
ASSIGNMENT AND SUBLEASING
-------------------------
The Lessee may not assign any of its right, title or interest in,
to or under this Lease, except as set forth in the following sentence.
Subject to the terms and conditions of the Bond Lease, the Lessee may
assign its right under this Lease or sublease all or any portion of the
Leased Property, provided that (a) all obligations of the Lessee shall
--------
continue in full effect as obligations of a principal and not of a
guarantor or surety, as though no assignment or sublease had been made;
(b) such assignment or sublease shall be expressly subject and
subordinate to this Lease, the Loan Agreement and the other Operative
Documents; and (c) each such assignment or sublease shall terminate on
or before the Lease Termination Date. The Lessee shall give the Agent,
the Lessor and the Issuer prompt written notice of any such assignment
or sublease.
12
Except pursuant to an Operative Document, this Lease shall not be
mortgaged or pledged by the Lessee, nor shall the Lessee mortgage or
pledge any interest in the Leased Property or any portion thereof. Any
such mortgage or pledge shall be void.
ARTICLE X
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
-----------------------------------------
Section 10.1 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 Lessee, renders repair and restoration of the
Leased Property impossible or impractical, or requires repairs to the
Leased Property that would cost in excess of fifty percent (50%) of the
original cost of the Leased Property, and (iii) as to which the Lessee,
within sixty (60) days after the occurrence of such event, delivers to
the Lessor an Officer's Certificate notifying the Lessor of such event
and of such judgment, shall constitute an "Event of Loss". In the case
-------------
of any other event which constitutes a Casualty, the Lessee shall
restore the Leased Property pursuant to Section 10.3. If an Event of
------------
Loss other than an Event of Taking shall occur, the Lessee shall pay to
the Lessor on the later of (i) the thirtieth day (30th) and (ii) the
next Payment Date following delivery of the Officer's Certificate
pursuant to clause (iii) above an amount equal to the Lease Balance.
Upon the Lessor's receipt of the Lease Balance on such date, the Lessor
shall cause the Lessor's interest in the Leased Property to be conveyed
to the Lessee in accordance with and subject to the provisions of
Section 14.5 hereof; upon completion of such purchase, but not prior
- ------------
thereto, this Lease with respect to the Leased Property and all
obligations hereunder with respect to the 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 the Leased Property
pursuant to this Section 10.1, any proceeds derived from insurance
------------
required to be maintained by the Lessee pursuant to this Lease for the
Leased Property remaining after payment of such purchase price shall be
paid over to, or retained by, the Lessee or as it may direct, and the
Lessor shall assign to the Lessee, without warranty, all of the Lessor's
rights to and interest in such insurance required to be maintained by
the Lessee pursuant to this Lease.
Section 10.2 Event of Taking. Any event (i) which constitutes a
---------------
Condemnation of all of, or substantially all of, the Leased Property, or
(ii) (A) which would otherwise constitute a Condemnation, (B) which, in
the good faith judgment of the Lessee, renders restoration and
rebuilding of the Leased Property impossible or impractical, or requires
repairs to the Leased Property that would cost in excess of fifty
percent (50%) of the original cost of the Leased Property, and (C) as to
which the Lessee, within sixty (60) days after the occurrence of such
event, delivers to the Lessor an Officer's Certificate notifying the
Lessor of such event and of such judgment, shall constitute an "Event of
--------
Taking". In the case of any other event which constitutes a
- ------
Condemnation, the Lessee shall restore and rebuild the Leased Property
pursuant to Section 10.4. If an Event of Taking shall occur, the Lessee
------------
shall pay to the Lessor (1) on the
13
later of (A) the thirtieth (30th) day and (B) the next Payment Date
following the occurrence of such Event of Taking, in the case of an
Event of Taking described in clause (i) above, or (2) on the later of
(A) the thirtieth (30th) day and (B) the next Payment Date following
delivery of the Officer's Certificate pursuant to clause (ii) above, in
the case of an Event of Taking described in clause (ii) above, an amount
equal to the Lease Balance. Upon the Lessor's receipt of the Lease
Balance on such date, the Lessor shall cause the Lessor's interest in
the Leased Property to be conveyed to the Lessee in accordance with and
subject to the provisions of Section 14.5 hereof (provided that such
------------
conveyance shall be subject to all rights of the condemning authority);
upon completion of such purchase, but not prior thereto, this Lease with
respect to the Leased Property and all obligations hereunder with
respect to the 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 the Leased Property
pursuant to this Section 10.2, all Awards received by the Lessor, after
------------
deducting any reasonable costs incurred by the Lessor in collecting such
Awards, received or payable on account of an Event of Taking with
respect to the Leased Property during the Lease Term shall be paid to
the Lessee, and all rights of the Lessor in Awards not then received
shall be assigned to the Lessee by the Lessor.
Section 10.3 Casualty. If a Casualty shall occur which is not an
--------
Event of Loss, the Lessee shall rebuild and restore the Leased Property
in accordance with the terms of this Lease and the other Operative
Documents, 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.
Section 10.4 Condemnation. If a Condemnation shall occur which is
------------
not an Event of Taking, the Lessee shall rebuild and restore the Leased
Property in accordance with the terms of this Lease and the other
Operative Documents, 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 10.5 Verification of Restoration and Rebuilding. In the
------------------------------------------
event of Casualty or Condemnation, to verify the Lessee's compliance
with the foregoing Section 10.3 or 10.4, as appropriate, the Lessor, the
------------ ----
Agent, the Lenders and their respective authorized representatives may,
upon five (5) Business Days' notice to the Lessee, make inspections of
the Leased Property with respect to (i) the extent of the Casualty or
Condemnation and (ii) the restoration and rebuilding of the Building and
the Land. All actual and reasonable out-of-pocket costs of such
inspections incurred by the Lessor, the Agent or any Lender will be paid
by the Lessee promptly after written request. No such inspection shall
unreasonably interfere with the Lessee's operations or the operations of
any other occupant of the Leased Property. None of the
14
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 10.6 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 the Lessor, the
- ------------
Lessee or the Agent from any Governmental Authority or other Person with
respect to any Condemnation or Casualty to the 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 the 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 Lessee purchases the 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 Potential
Event of Default or Event of Default has occurred and the Lessee is
obligated to repair and rebuild the Leased Property pursuant to Section
-------
10.3, the Lessee may, in good faith and subsequent to the date of such
- ----
Casualty, certify to the Lessor, the Lenders and the Agent and to the
applicable insurer that no Potential Event of Default or Event of
Default has occurred, in which event the applicable insurer shall pay
the Loss Proceeds to the Lessee, unless the estimated cost of
restoration exceeds the lesser of $250,000 and fifty percent (50%) of
the original cost of the Leased Property in which case the Loss Proceeds
shall be paid to the Agent (or the Lessor if the Loans have been paid in
full), and shall be promptly released to the Lessee upon certification
by the Lessee to the Lessor and the Agent that the Lessee has incurred
costs in the amount requested to be released for the repair and
rebuilding of the Leased Property and satisfaction of such other
requirements as may be reasonably requested by the Lessor and the Agent
(including, without limitation, satisfaction of conditions to release of
such funds to the Lessee comparable to the conditions precedent to
Advances under the Operative Documents);
(c) In the event of a Condemnation at such time when no
Potential Event of Default or Event of Default has occurred and the
Lessee is obligated to repair and rebuild the Leased Property pursuant
to Section 10.4, the Lessee may, in good faith and subsequent to the
------------
date of such Condemnation, certify to the Lessor and the Agent that no
Potential Event of Default or Event of Default has occurred and shall
satisfy such other requirements as may be reasonably requested by the
Lessor or the Agent, in which event the applicable Award shall be paid
over to the Lessee provided that, if such Award exceeds the lesser of
$250,000 and fifty percent (50%) of the original cost of the Leased
Property, such Award shall be paid to the Agent (or the Lessor if the
Loans have been paid in full), and shall be promptly released to the
Lessee upon receipt by the Lessor and the Agent of a certification as
described above and satisfaction of such other requirements as may
reasonably be requested by the Lessor and the Agent (including, without
15
limitation, satisfaction of conditions to release of such funds to the
Lessee comparable to the conditions precedent to Advances under the
Operative Documents); 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. The
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 the Lessee at its offices
- ----
and shall be made available to the Lessor, the Lenders and the Agent
upon request.
Section 10.7 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 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 the Lessee, unless a Potential Event
- ----
of Default or Event of Default shall have occurred, in which case (i)
the Agent (or the Lessor if the Loans have been fully paid) shall
control such negotiations; and (ii) the Lessee hereby irrevocably
assigns, transfers and sets over to the Agent (or the Lessor if the
loans have been fully paid) all rights of the Lessee to any Award on
account of any Event of Taking or any Condemnation and, if there will
not be separate Awards to the Lessor and the Lessee on account of such
Event of Taking or Condemnation, irrevocably authorizes and empowers the
Agent (or the Lessor if the Loans have been fully paid), with full power
of substitution, in the name of the Lessee or otherwise (but without
limiting the obligations of the Lessee under this Article X), to file
---------
and prosecute what would otherwise be the Lessee's claim for any such
Award and to collect, receipt for and retain the same. In any event the
Lessor and the Agent may participate in such negotiations, and no
settlement will be made without the prior consent of the Agent (or the
Lessor if the Loans have been fully paid), not to be unreasonably
withheld.
(b) Notwithstanding the foregoing, the Lessee may prosecute, and
the Lessor shall have no interest in, any claim with respect to the
Lessee's personal property and equipment not financed by or otherwise
property of the Lessor, business interruption or similar award and the
Lessee's relocation expenses.
Section 10.8 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 the Leased Property which is not an Event of Taking, this
Lease shall remain in full force and effect with respect to the Leased
Property, without any abatement or reduction of Basic Rent, and the
Awards for the Leased
16
Property shall, unless a Potential Event of Default or Event of Default
has occurred, be paid to the Lessee.
Section 10.9 Other Dispositions. Notwithstanding the foregoing
------------------
provisions of this Article X, if a Potential Event of Default or an
---------
Event of Default shall have occurred, any amount that would otherwise be
payable to or for the account of, or that would otherwise be retained
by, the Lessee pursuant to this Article X shall be paid to the Agent (or
---------
the Lessor if the Loans have been fully paid) as security for the
obligations of the Lessee under this Lease and, at such time thereafter
as no Potential Event of Default or Event of Default shall be
continuing, such amount shall be paid promptly to the Lessee to the
extent not previously applied by the Lessor or the Agent in accordance
with the terms of this Lease or the other Operative Documents.
Section 10.10 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 the Leased Property, and the Lessee shall continue to
perform and fulfill all of the 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 LESSEE
---------------------------
The Lessee and the Lessor intend that this Lease be treated, for
accounting purposes, as an operating lease. For all other purposes, the
Lessee and the Lessor intend that the transaction represented by this
Lease be treated as a financing transaction, and for such purposes, it
is the intention of the parties hereto (i) that this Lease be treated as
a mortgage, security deed or deed of trust (whichever is applicable in
the jurisdiction in which the Leased Property is located) and security
agreement, encumbering the Leased Property, and that the Lessee, as
grantor, hereby grants to the Lessor, as mortgagee or beneficiary and
secured party, or any successor thereto, a first and paramount Lien on
the Leased Property in which the Lessee has an interest, (ii) that the
Lessor shall have, as a result of such determination, all of the rights,
powers and remedies of a mortgagee, deed of trust beneficiary or secured
party available under Applicable Law to take possession of and sell
(whether by foreclosure or otherwise) the Leased Property, (iii) that
the effective date of such mortgage, security deed or deed of trust
shall be the effective date of this Lease, or the Lease Supplement, if
later, (iv) that the recording of this Lease or the Lease Supplement
shall be deemed to be the recording of such mortgage, security deed or
deed of trust, and (v) that the obligations secured by such mortgage,
security deed or deed of trust shall include the Funded Amount and all
Basic Rent and Supplemental Rent hereunder and all other obligations of
and amounts due from the Lessee hereunder and under the Operative
Documents.
17
ARTICLE XII
EVENTS OF DEFAULT
-----------------
Each of the following events shall constitute an Event 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 Governmental Authority):
(a) The Lessee shall fail to make any payment of Basic Rent when
due; or
(b) (i) The 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 five (5) days after the same
becomes due; or (ii) the Lessee shall fail to pay the Funded Amount or
Lease Balance when due pursuant to Sections 10.1, 10.2, 14.1 or 14.2, or
------------- ---- ---- ----
the Lessee shall fail to pay the Recourse Deficiency Amount when
required pursuant to Article XIV or the Construction Agent shall fail to
-----------
make any payment when due under the Construction Agency Agreement; or
(c) The Lessee or JFC or any of their Subsidiaries fails to
perform or observe any term, covenant or agreement contained in Section
5.1(p)(vii), (xi), (xii), (xv) or (xvi) or in Section 5.2 of the Master
Agreement; or
(d) The Lessee shall fail to maintain insurance as required by
Article VIII hereof, and such failure shall continue until the earlier
- ------------
of (i) fifteen (15) days after written notice thereof from the Lessor
and (ii) the day immediately preceding the date on which any applicable
insurance coverage would otherwise lapse or terminate; or
(e) The Lessee, JFC or any of their Subsidiaries shall default
in the due and punctual performance of or compliance with any covenant,
condition or agreement to be performed or observed by it under any
provision of Sections 5.1(g), (h), (j), (k) or (m), inclusive, of the
Master Agreement or shall use the proceeds of the Fundings for a purpose
other than as stated in Section 5.1(u) of the Master Agreement, and any
such failure or use shall continue unremedied for five (5) days
following the date on which such covenant, condition or agreement shall
have been required to be performed or observed, or such use of proceeds
shall have varied from that stated in Section 5.1(u) of the Master
Agreement; or
(f) The Lessee, JFC or any of their Subsidiaries shall default
in the due and punctual performance of or compliance with any covenant,
condition or agreement to be performed or observed by it under any
provision of Sections 5.1(c)-(f), inclusive, 5.1(i) or 5.1(n) of the
Master Agreement and any such failure shall continue unremedied for ten
(10) days following the date on which such covenant, condition or
agreement shall have been required to be performed or observed; or
(g) The Lessee, JFC or any of their Subsidiaries shall default
in the due and punctual performance of or compliance with any covenant,
condition or agreement to be performed or observed by it under any other
provision of this Lease or any of the other Operative Documents
18
and any such failure shall continue unremedied for thirty (30) days
after the earlier of (x) the date upon which any senior officer of the
Lessee or JFC knew or reasonably should have known of such default or
(y) the date on which such covenant, condition or agreement shall have
been required to be performed or observed; or
(h) Any representation or warranty of the Lessee or JFC made in
any of the Operative Documents or in any certificate, document or
financial or other statement or in connection with the Transaction or
pursuant to the Operative Documents shall have been false or inaccurate
in any material respect on the date as of which made or deemed made; or
(i) The Lessee, JFC, or any of their Subsidiaries (A) shall fail
to make when due or payable any payment required to be made by it in
respect of (x) any Indebtedness for Money Borrowed (other than pursuant
to the Operative Documents) whether or not subject to a Subordination
Agreement, or (y) any Indebtedness other than Indebtedness for Money
Borrowed, whether or not subject to a Subordination Agreement, if such
failure extends beyond the applicable grace period (if any) specified in
the relevant document on the date of such failure or (B) shall fail duly
and punctually to perform or observe any other covenant, condition, or
agreement contained in, or any other event shall occur or condition
shall exist under, any evidence of Indebtedness, or any agreement
securing or relating to any Indebtedness, and the effect of such failure
is (x) to cause, or permit the holder of such Indebtedness or a trustee
to cause, such Indebtedness to become due or to be required to be
repurchased, prior to its scheduled maturity or such Indebtedness to
become payable or cash collateral in respect thereof to be demanded or
(y) to permit the holder of such Indebtedness or a trustee to elect any
Person to the Board of Directors of any Subsidiary; provided, that any
--------
Event of Default arising under clause (B) in respect of Indebtedness
----------
shall be determined without regard to any amendment to or waiver of any
provision of the document or instrument evidencing such indebtedness or
any related document or instrument entered into by the parties thereto
in anticipation of, concurrent with or subsequent to the occurrence of
any such event or circumstance, including, without limitation, the
occurrence of any event or condition that (x) results in any such
Indebtedness becoming due prior to its scheduled maturity or (y) enables
or permits the lenders under such Indebtedness (as amended, modified,
supplemented or replaced from time to time), or any agent on their
behalf, to cause the loans thereunder to become due or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; or
(j) A default shall occur under the provisions of any preferred
stock (or any agreement relating thereto) of any Subsidiary, and the
effect of the same shall be (i) to require, or permit the holders
thereof to require, the issuer thereof to redeem the same prior to any
mandatory redemption date or (ii) to permit the holders thereof to elect
any Person to the Board of Directors of such Subsidiary; or
(k) A final judgment or judgments for the payment of money in
excess of $500,000 in the aggregate shall be rendered against the
Lessee, JFC and any Subsidiary (or any one or more of such Persons) and
shall remain in force undischarged and unstayed for a period of more
than
19
the longer of (x) 60 days or (y) the shorter of (i) the period provided
for requesting a stay of such judgment or (ii) the period provided for
filing an appeal from such judgment, both as established for the
jurisdiction in which such judgment was rendered and without regard for
any extension or renewal periods applicable to either thereof; or
(l) The Lessee, JFC or any of their Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it
a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its assets, or the Lessee, JFC or any of
their Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Lessee, JFC
or any of their Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of
----------
an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of sixty (60)
days; or (iii) there shall be commenced against the Lessee, JFC or any
of their Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results
in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within sixty
(60) days from the entry thereof; or (iv) the Lessee, JFC or any of
their Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) the Lessee,
---------- ---- -----
JFC or any of their Subsidiaries shall generally not, or shall be unable
to, or shall admit in writing its inability to, pay its debts as they
become due or there shall be any receivership, insolvency, or
liquidation pursuant to SIPA; or
(m) (i) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Lessee, JFC or any ERISA
Affiliate under Title IV of ERISA to such Pension Plan or Multiemployer
Plan or to the PBGC in an aggregate amount for all such Pension Plans
and Multiemployer Plans in excess of $500,000, less any outstanding
amounts under clauses (ii) and (iii); (ii) the aggregate amount of
Unfunded Pension Liability among all Pension Plans and Multiemployer
Plans at any time exceeds $500,000, less any outstanding amounts under
clauses (i) and (iii) (determined, in respect of Multiemployer Plans, by
reference to the Unfunded Pension Liability for which the Lessee, JFC or
any ERISA Affiliate may be liable); or (iii) the Lessee, JFC or any
ERISA Affiliate shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $500,000, less any outstanding
amounts under clauses (i) and (ii); or
(n) Intentionally Omitted.
20
(o) The Guarantor fails in any material respect to perform or
observe any term, covenant or agreement in the Guaranty, or the Guaranty
is for any reason partially (including with respect to future advances)
or wholly revoked or invalidated, or otherwise ceases to be in full
force and effect, or the Guarantor or any other Person contests in any
manner the validity or enforceability thereof or denies that it has any
further liability or obligation thereunder; or any event described at
subsection (l) of this Section occurs with respect to the Guarantor or
- -------------- -------
the Guarantor shall repudiate or terminate the Guaranty, or the Guaranty
shall at any time cease to be in full force and effect or cease to be
the legal, valid and binding obligation of the Guarantor; or
(p) Any non-monetary judgment, order or decree is entered
against the Lessee or any Subsidiary which does or would reasonably be
expected to have a Material Adverse Effect, and there shall be any
period of fifteen (15) consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(q) There occurs any Change of Control; or
(r) Any Governmental Authority or any Business Association
revokes or fails to renew any material license, permit or franchise of
the Lessee, JFC or any Subsidiary, or the Lessee, JFC or any Subsidiary
for any reason loses any material license, permit or franchise, or the
Lessee, JFC or any Subsidiary suffers the imposition of any restraining
order, escrow, suspension or impound of funds in connection with any
proceeding (judicial or administrative) with respect to any material
license, permit or franchise which, in the case of any restraining
order, escrow or impound of funds is not dismissed or released within
thirty (30) days after filing or imposition; or
(s) The occurrence of a Construction Agency Event of Default; or
(t) There shall have been asserted against the Lessee or any of
its Subsidiaries an environmental claim that, in the reasonable judgment
of the Lenders, is reasonably likely to be determined adversely to the
Lessee or any of its Subsidiaries, and the amount thereof (either
individually or in the aggregate) is reasonably likely to have a
Material Adverse Effect (insofar as such amount is payable by the Lessee
or any of its Subsidiaries but after deducting any portion thereof that
is reasonably expected to be paid by other creditworthy Persons jointly
and severally liable therefor); or
(u) The Lessee, JFC or the Lessee's General Partner shall be
terminated, dissolved or liquidated (as a matter of law or otherwise) or
proceedings shall be commenced by any Person (including the Lessee, JFC
or the Lessee's General Partner) seeking the termination, dissolution or
liquidation of the Lessee, JFC or the Lessee's General Partner, as the
case may be, and such proceedings are not dismissed within twenty (20)
days after filing; or
(v) The Liens created by the Operative Documents shall at any
time not constitute a valid and perfected Lien on the collateral
intended to be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or therein)
in favor of the
21
Agent, free and clear of all other Liens (other than Permitted Liens),
or, except for expiration in accordance with its terms, any of the
Operative Documents shall for whatever reason be terminated or cease to
be in full force and effect, or the enforceability thereof shall be
contested by the Lessee or any other obligor; or
(w) A court or other Governmental Authority or agency or
Business Association having jurisdiction shall enter a decree or order
approving or acknowledging as properly filed or commenced against the
Lessee or any Subsidiary a petition or proceedings for liquidation
pursuant to SIPA or otherwise, rehabilitation, readjustment or
composition (or for any related or similar purpose) under any law (other
than the Bankruptcy Code) relating to financially distressed debtors,
their creditors or property, and any such decree or order shall remain
in force undischarged and unstayed for a period of more than 30 days; or
(x) The Lessee, JFC or any of their Subsidiaries shall take
corporate action for the purpose or with the effect of authorizing,
acknowledging or confirming the taking or existence of any action or
condition specified in paragraph (l) above; or
(y) The Lessee shall fail to file any report or information
required pursuant to SIPA, or shall fail to pay when due all or any part
of an assessment made upon the Lessee pursuant to SIPA, and such failure
shall not have been cured, by the filing of such report or information
or by the making of such payment, together with interest thereon, within
five days after receipt by the Lessee, of written notice of such failure
given by or on behalf of SIPC pursuant to Section 10(a) of SIPA; or
(z) The making of an application by SIPC for a decree
adjudicating that customers of the Lessee are in need of protection
under SIPA and the failure of the Lessee to obtain the dismissal of such
application within 30 days;
(aa) Aggregate Indebtedness of the Lessee shall exceed 1500% of
its Net Capital or, if the Lessee has elected to operate under paragraph
(a)(1)(ii) of Rule 15c3-1, its Net Capital computed in accordance
therewith shall be less than 2% of its aggregate debit items computed in
accordance with Exhibit A to Rule 15c3-3 or (if registered as a futures
commission merchant) its net capital (as defined in the CEA or the
regulations then existing thereunder) shall be less than 4% of the funds
required to be segregated pursuant to the CEA and the regulations
thereunder and the foreign futures or foreign options secured amounts
(less the market value of commodity options purchased by option
customers on or subject to the rules of a contract market or a foreign
Board of Trade, each such deduction not to exceed the amount of funds in
the option customer's account and the foreign futures or foreign options
secured amounts), if greater (or, in either case, such greater or lesser
percentage as may be made applicable to the Lessee by the self-
regulatory or governmental agencies or bodies having appropriate
authority), throughout a period of not less than fifteen (15)
consecutive Business Days, commencing on the date the Lessee first
determines and notifies the Examining Authority or the Examining
Authority or the SEC first determines and notifies the Lessee of such
fact; or
22
(bb) The SEC or any State Securities Commission shall revoke the
broker-dealer registration of the Lessee;
(cc) The Examining Authority or any Business Association shall
suspend (and not reinstate within 10 days) or revoke the Lessee's
membership as a member of such Examining Authority or any Business
Association; or
(dd) The Lessee shall default in the due and punctual performance
of or compliance with any covenant, condition or agreement to be
performed or observed by the Lessee or the Lessor under the Bond
Documents, and any such default shall continue unremedied beyond any
applicable cure period provided for in the Bond Documents.
ARTICLE XIII
ENFORCEMENT
-----------
Section 13.1 Remedies. Upon the occurrence and during the
--------
continuance of any Event of Default, the Lessor may do one or more of
the following as the Lessor in its sole discretion shall determine,
without limiting any other right or remedy the Lessor may have on
account of such Event of Default (including, without limitation, the
obligation of the Lessee to purchase the Leased Property as set forth in
Section 14.3):
- ------------
(a) The Lessor may, by notice to the Lessee, rescind or
terminate this Lease as of the date specified in such notice; however,
(i) no reletting, reentry or taking of possession of the Leased Property
by the Lessor will be construed as an election on the Lessor's part to
terminate this Lease unless a written notice of such intention is given
to the Lessee, (ii) notwithstanding any reletting, reentry or taking of
possession, the Lessor may at any time thereafter elect to terminate
this Lease for a continuing Event of Default, and (iii) no act or thing
done by the Lessor or any of its agents, representatives or employees
and no agreement accepting a surrender of the Leased Property shall be
valid unless the same be made in writing and executed by the Lessor;
(b) The Lessor may (i) demand that the Lessee, and the Lessee
shall upon the written demand of the Lessor, return the Leased Property
promptly to the 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 Property were being returned at the end of
- ---
the Lease Term, and the Lessor shall not be liable for the reimbursement
of the Lessee for any costs and expenses incurred by the Lessee in
connection therewith and (ii) without prejudice to any other remedy
which the Lessor may have for possession of the Leased Property, and to
the extent and in the manner permitted by Applicable Law, enter upon the
Leased Property and take immediate possession of the Leased Property or
any part thereof (to the exclusion of the Lessee) and expel or remove
the Lessee and any other person who may be occupying the Leased
Property, by summary proceedings or otherwise, all without liability to
the Lessee for or by reason of such entry or taking of possession,
whether for the restoration of damage to property caused by such
23
taking or otherwise and, in addition to the Lessor's other damages, the
Lessee shall be responsible for the actual and reasonable costs and
expenses of reletting, including brokers' fees and the reasonable costs
of any alterations or repairs made by the Lessor;
(c) The Lessor may (i) sell all or any part of the Leased
Property at public or private sale, as the Lessor may determine, free
and clear of any rights of the Lessee and without any duty to account to
the Lessee with respect to such action or inaction or any proceeds with
respect thereto (except to the extent required by clause (ii) below if
-----------
the Lessor shall elect to exercise its rights thereunder) in which event
the Lessee's obligation to pay Basic Rent for the Leased Property
hereunder for periods commencing after the date of such sale shall be
terminated or proportionately reduced, as the case may be; and (ii) if
the Lessor shall so elect, demand that the Lessee pay to the Lessor, and
the Lessee shall pay to the Lessor, on the date of such sale, as
liquidated damages for loss of a bargain and not as a penalty (the
parties agreeing that the Lessor's actual damages would be difficult to
predict, but the aforementioned liquidated damages represent a
reasonable approximation of such amount) (in lieu of Basic Rent due for
periods commencing on or after the Payment Date coinciding with such
date of sale (or, if the sale date is not a Payment Date, the Payment
Date next preceding the date of such sale)), an amount equal to (a) the
excess, if any, of (1) the sum of (A) all Rent due and unpaid to and
including such Payment Date and (B) the Funded Amount with respect to
the Leased Property, computed as of such date, over (2) the net proceeds
of such sale (that is, after deducting all costs and expenses incurred
by the Lessor, the Agent or any Lender incident to such conveyance
(including, without limitation, all costs, expenses, fees, premiums and
taxes described in Section 14.5); plus (b) interest at the Overdue Rate
------------ ----
on the foregoing amount from such Payment Date until the date of
payment;
(d) The Lessor may, at its option, not terminate this Lease, and
continue to collect all Basic Rent, Supplemental Rent (excluding the
Rental Payments due under the Bond Lease which the Lessee shall continue
to pay in the manner set forth in Section 5.1 of the Bond Lease), and
-----------
all other amounts (including, without limitation, the Funded Amount) due
to the Lessor (together with all costs of collection) and enforce the
Lessee's obligations under this Lease as and when the same become due,
or are to be performed, and, at the option of the Lessor, upon any
abandonment of the Leased Property by the Lessee or re-entry of same by
the Lessor, the Lessor may, in its sole and absolute discretion, elect
not to terminate this Lease with respect thereto and may make such
reasonable alterations and necessary repairs in order to relet the
Leased Property, and relet the 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 the Lessor in its reasonable discretion may deem
advisable, and upon each such reletting all rentals actually received by
the Lessor from such reletting shall be applied to the Lessee's
obligations hereunder in such order, proportion and priority as the
Lessor may elect in the Lessor's sole and absolute discretion. If such
rentals received from such reletting during any Rent Period are less
than the Rent to be paid during that Rent Period by the Lessee
hereunder, the Lessee shall pay any deficiency, as calculated by the
Lessor, to the Lessor on the Payment Date for such Rent Period;
24
(e) If the Leased Property has not been sold, the Lessor may,
whether or not the Lessor shall have exercised or shall thereafter at
any time exercise any of its rights under paragraphs (a), (b), (c) or
------------------- ---
(d) of this Article XIII with respect to the Leased Property, demand, by
- --- ------------
written notice to the Lessee specifying a date (the "Final Rent Payment
------------------
Date") not earlier than thirty (30) days after the date of such notice,
- ----
that the Lessee purchase, on the Final Rent Payment Date, the Lessor's
interest in the Leased Property in accordance with the provisions of
Sections 14.2, 14.4 and 14.5; provided, however, that (i) such purchase
- ------------- ---- ---- -------- -------
shall occur on the date set forth in such notice, notwithstanding the
provision in Section 14.2 calling for such purchase to occur on the
------------
Lease Termination Date, and (ii) the Lessor's obligations under Section
-------
14.5(a) shall be limited to delivery of a duly executed and acknowledged
- -------
assignment of the Bond Lease and a release of the Bond Deed of Trust,
both of which shall be in a form reasonably acceptable to the Lessor and
the Lessee;
(f) The Lessor may exercise any other right or remedy that may
be available to it under Applicable Law, or proceed by appropriate court
action (legal or equitable) to enforce the terms hereof or to recover
damages for the breach hereof. Separate suits may be brought to collect
any such damages for any Rent Period(s), and such suits shall not in any
manner prejudice the Lessor's right to collect any such damages for any
subsequent Rent Period(s), or the Lessor may defer any such suit until
after the expiration of the Lease Term, in which event such suit shall
be deemed not to have accrued until the expiration of the Lease Term; or
(g) The Lessor may retain and apply against the Lessor's damages
(but only to the extent thereof) all sums which the Lessor would, absent
such Event of Default, be required to pay to, or turn over to, the
Lessee pursuant to the terms of this Lease.
Section 13.2 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 the 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 the 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 the 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 the Lessee or to be an acquiescence therein. The Lessor's
consent to any request made by the Lessee shall not be deemed to
constitute or preclude the necessity for obtaining the Lessor's consent,
in the future, to all similar requests. No express or implied waiver by
the 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, the
Lessee hereby waives any rights now or hereafter conferred by statute or
otherwise that may require the Lessor to sell, lease or otherwise use
the Leased Property or part thereof in mitigation
25
of the Lessor's damages upon the occurrence of any Potential Event of
Default or Event of Default or that may otherwise limit or modify any of
the Lessor's rights or remedies under this Article XIII.
------------
Section 13.3 Purchase Upon an Event of Default. Upon the
---------------------------------
occurrence of an Event of Default, until the date that is thirty (30)
days after the Lessee receives written notice of such Event of Default,
the Lessee may purchase all, but not less than all, of the Lessor's
interest in the Leased Property for the Lease Balance, plus any amounts
due pursuant to Section 7.5 of the Master Agreement. Such purchase shall
be made in accordance with Section 14.5 (except that the Lessor's
obligations under Section 14.5(a) shall be limited to delivery of a duly
---------------
executed and acknowledged assignment of the Bond Lease and a release of
the Bond Deed of Trust, both of which shall be in a form reasonably
acceptable to the Lessor and the Lessee), upon not less than five (5)
Business Days' written notice (which shall be irrevocable) to the
Lessor, which notice shall set forth the date of purchase (which shall
be a date no later than ten (10) Business Days from the date of such
notice).
ARTICLE XIV
SALE, RETURN OR PURCHASE
OF LEASED PROPERTY; RENEWAL
---------------------------
Section 14.1 Lessee's Option to Purchase.
---------------------------
(a) Subject to the terms, conditions and provisions set forth in
this Article XIV, the Lessee shall have the option (the "Purchase
----------- --------
Option"), to be exercised as set forth below, to purchase from the
- ------
Lessor, the Lessor's interest in all of the Leased Property. Such option
must be exercised by written notice to the Lessor not later than six (6)
months prior to the Lease Termination 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 Lease Termination 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 or the Lease Termination Date, as the case may
be, the Lessor shall convey to the Lessee, without recourse or warranty
(other than as to the absence of Lessor Liens), and the Lessee shall
purchase from the Lessor, the Lessor's interest in the Leased Property
leased by the Lessee.
(b) [Reserved]
Section 14.2 Conveyance to Lessee. Unless (a) the Lessee shall
--------------------
have properly exercised the Purchase Option and purchased the Leased
Property pursuant to Section 14.1(a), or (b) the Lessee shall have
---------------
properly exercised the Remarketing Option and shall have fulfilled all
of the conditions of Section 14.6 hereof, then, subject to the terms,
------------
conditions and provisions set forth in this Article XIV, the Lessee
-----------
shall purchase from the Lessor, and the Lessor shall convey to the
Lessee, on the Lease Termination Date all of the Lessor's interest in
the Leased Property
26
leased to the Lessee. The Lessee may designate, in a notice given to the
Lessor not less than ten (10) Business Days prior to the closing of such
purchase, or any purchase pursuant to Section 14.1(a), (time being of
---------------
the essence), the transferee to whom the conveyance shall be made (if
other than to the Lessee), in which case such conveyance shall (subject
to the terms and conditions set forth herein) be made to such designee;
provided, however, that such designation of a transferee shall not cause
- -------- -------
the Lessee to be released, fully or partially, from any of its
obligations under this Lease.
Section 14.3 Acceleration of Purchase Obligation. The Lessee shall
-----------------------------------
be obligated to purchase the Lessor's interest in the Leased Property
immediately, automatically and without notice upon the occurrence of any
Event of Default specified in clause (l) of Article XII, for the
-----------
purchase price set forth in Section 14.4. Upon the occurrence of any
------------
other Event of Default, the Lessee shall be obligated to purchase the
Lessor's interest in the Leased Property for the purchase price set
forth in Section 14.4 upon notice of such obligation from the Lessor.
------------
Section 14.4 Determination of Purchase Price. Upon the purchase by
-------------------------------
the Lessee of the Lessor's interest in the Leased Property upon the
exercise of the Purchase Option or pursuant to Section 14.2 or 14.3, the
------------ ----
aggregate purchase price for the Leased Property shall be an amount
equal to the Lease Balance as of the closing date for such purchase,
plus any amount due pursuant to Section 7.5(f) of the Master Agreement
as a result of such purchase.
Section 14.5 Purchase Procedure.
------------------
(a) If the Lessee shall purchase the Lessor's interest in the
Leased Property pursuant to any provision of this Lease, (i) the Lessee
shall accept from the Lessor, and the Lessor shall convey, its interest
in the Leased Property by a duly executed and acknowledged assignment of
the Bond Lease, in a form reasonably acceptable to the Lessor and the
Lessee, (ii) upon the date fixed for any purchase of the Lessor's
interest in the Leased Property hereunder, the Lessee shall pay to the
order of the Agent (or the Lessor if the Loans have been paid in full)
the Lease Balance, 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, and (iii) the Lessor will execute and
deliver to the Lessee such other documents, including releases,
affidavits, termination agreements and termination statements, as may be
legally required or as may be reasonably requested by the Lessee in
order to effect such conveyance, free and clear of Lessor Liens and the
Liens of the Operative Documents.
(b) The Lessee shall, at the Lessee's sole cost and expense,
obtain all required governmental and regulatory approvals and consents
and, in connection therewith, shall make such filings as required by
Applicable Law. In the event that the Lessor is required by Applicable
Law to take any action in connection with such purchase and sale, the
Lessee shall pay prior to transfer all costs incurred by the Lessor in
connection therewith. Without limiting the foregoing, all costs incident
to such conveyance, including, without limitation, the Lessee's
attorneys' fees, the Lessor's attorneys' fees, commissions, the Lessee's
and the Lessor's escrow fees, recording fees, title insurance premiums
and all applicable documentary transfer or other transfer taxes and
27
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 assignment of Bond Lease shall be borne entirely by and
paid by the Lessee.
(c) Upon expiration or termination of this Lease resulting in
conveyance of the Lessor's interest in the title to the Leased Property
to the Lessee, 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
Property, all of such rents, taxes, insurance, utility or other charges
due and payable with respect to the Leased Property prior to termination
being payable by the Lessee hereunder and all due after such time being
payable by the Lessee as the then owner of the Leased Property.
Section 14.6 Option to Remarket. Subject to the fulfillment of
------------------
each of the conditions set forth in this Section 14.6, the Lessee shall
------------
have the option to market all of the Leased Property for the Lessor (the
"Remarketing Option"). The Lessee's effective exercise and consummation
------------------
of the Remarketing Option shall be subject to the due and timely
fulfillment of each of the following provisions, the failure of any of
which, unless waived in writing by the Lessor, the Agent and the
Lenders, shall render the Remarketing Option and the Lessee's exercise
thereof null and void, in which event, the Lessee shall be obligated to
perform its obligations under Section 14.2.
------------
(a) Not later than twelve (12) months prior to the Lease
Termination Date, the Lessee shall give to the Lessor and the Agent
written notice of the Lessee's exercise of the Remarketing Option.
(b) Not later than ten (10) Business Days prior to the Lease
Termination Date, the Lessee shall deliver to the Lessor and the Agent
an environmental assessment of the Leased Property leased by it dated
not earlier than forty-five (45) days prior to the Lease Termination
Date. Such environmental assessment shall be prepared by an
environmental consultant selected by the Required Funding Parties, shall
be in form, detail and substance reasonably satisfactory to the Required
Funding Parties and shall otherwise indicate the environmental condition
of the Leased Property to be the same as described in the Environmental
Audit.
(c) On the date of the Lessee's notice to the Lessor and the
Agent of the Lessee's exercise of the Remarketing Option, 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.
(d) The Lessee shall have completed all Alterations, restoration
and rebuilding of the Leased Property leased by it pursuant to Sections
--------
6.1, 6.2, 10.3 and 10.4 (as the case may be) and shall have fulfilled
- --- --- ---- ----
all of the conditions and requirements in connection therewith pursuant
to such Sections or otherwise as required hereunder or under the other
--------
Operative Documents, in each case, by the date on which the Lessor and
the Agent receive the Lessee's notice of the Lessee's exercise of the
Remarketing Option (time being of the essence), regardless of whether
28
the same shall be within the Lessee's control. If any use of the Leased
Property has substantially changed the character of the Leased Property
(without implying any consent to such use by the Lessor or the Agent),
the Lessee shall, if requested by the Lessor or the Agent, restore the
Leased Property to its general character as of the commencement of this
Lease, except for normal wear and tear.
(e) The Lessee shall promptly provide any maintenance records
relating to the Leased Property leased by it to the Lessor, the Agent
and any potential purchaser upon request and shall otherwise do all
things necessary to deliver possession of the Leased Property to the
potential purchaser. The Lessee shall allow the Lessor, the Agent and
any potential purchaser access to the Leased Property for the purpose of
inspecting the same.
(f) On the Lease Termination Date, the Lessee shall surrender
the Leased Property leased by it in accordance with Section 14.8 hereof.
------------
(g) In connection with any such sale of the Lessor's interest in
the Leased Property, the Lessee will provide to the purchaser all
customary "seller's" indemnities requested by the potential purchaser,
representations and warranties regarding title, absence of Liens (except
Lessor Liens) and the condition of the Leased Property, including,
without limitation, a customary environmental indemnity. The Lessee
shall fulfill all of the requirements set forth in clause (b) of Section
---------- -------
14.5, and such requirements are incorporated herein by reference. As to
- ----
the Lessor, any such sale shall be made on an "as is, with all faults"
basis without representation or warranty by the Lessor, other than the
absence of Lessor Liens.
(h) In connection with any such sale of the Lessor's interest in
the Leased Property, the Lessee shall pay directly, and not from the
sale proceeds, all prorations, credits, costs and expenses of the sale
of the Leased Property leased by it, whether incurred by the Lessor, any
Lender, the Agent or the Lessee, including without limitation, the cost
of all title insurance, surveys, environmental reports, appraisals,
transfer taxes, the Lessor's and the Agent's attorneys' fees, the
Lessee's attorneys' fees, commissions, escrow fees, recording fees and
all applicable documentary and other transfer taxes.
(i) The Lessee shall pay to the Agent on the Lease Termination
Date (or to such other Person as the Agent shall notify the Lessee in
writing, or in the case of Supplemental Rent, to the Person entitled
thereto) an amount equal to the Recourse Deficiency Amount, plus all
----
accrued and unpaid Basic Rent and Supplemental Rent, and all other
amounts hereunder which have accrued prior to or as of such date, in the
type of funds specified in Section 3.3 hereof.
-----------
If the Lessee has exercised the Remarketing Option, the following
additional provisions shall apply: During the period commencing on the
date twelve (12) months prior to the scheduled expiration of the Lease
Term, the Lessee shall, as nonexclusive agent for the Lessor, use
commercially reasonable efforts to sell the Lessor's interest in the
Leased Property and will attempt to obtain the highest purchase price
therefor. All such marketing of the Leased Property shall be at the
Lessee's sole expense. Lessee promptly shall submit all bids to the
Lessor and the
29
Agent, and the Lessor and the Agent will have the right to review the
same and the right to submit any one or more bids. All bids shall be on
an all-cash basis. In no event shall such bidder be the Lessee or any
Subsidiary or Affiliate of the Lessee. The written offer must specify
the Lease Termination Date as the closing date. If, and only if, the
aggregate selling price (net of closing costs and prorations, as
reasonably estimated by the Agent) is less than the difference between
the Lease Balance at such time minus the Recourse Deficiency Amount,
then the Lessor or the Agent may, in its sole and absolute discretion,
by notice to the Lessee, reject such offer to purchase, in which event
the parties will proceed according to the provisions of Section 14.7
------------
hereof. If neither the Lessor nor the Agent rejects such purchase offer
as provided above, the closing of such purchase of the Leased Property
by such purchaser shall occur on the Lease Termination Date,
contemporaneously with the Lessee's surrender of the Leased Property in
accordance with Section 14.8 hereof, and the gross proceeds of the sale
------------
(i.e., without deduction for any marketing, closing or other costs,
prorations or commissions) shall be paid directly to the Agent (or the
Lessor if the Funded Amount has been fully paid); provided, however,
-------- -------
that if the sum of the gross proceeds from such sale plus the Recourse
----
Deficiency Amount paid by the Lessee on the Lease Termination Date
pursuant to Section 14.6(i), minus any and all costs and expenses
---------------
(including broker fees, appraisal costs, legal fees and transfer taxes)
incurred by the Agent or the Lessor in connection with the marketing of
the Leased Property or the sale thereof exceeds the Lease Balance as of
such date, then the excess shall be paid to the Lessee on the Lease
Termination Date. The Lessee shall not have the right, power or
authority to bind the Lessor in connection with any proposed sale of the
Leased Property.
Section 14.7 Rejection of Sale. Notwithstanding anything contained
-----------------
herein to the contrary, if the Lessor or the Agent rejects the purchase
offer for the Leased Property as provided in Section 14.6, then (a) the
------------
Lessee shall pay to the Agent the Recourse Deficiency Amount pursuant to
Section 14.6(i), (b) the Lessor shall retain its interest in the Leased
- ---------------
Property, and (c) in addition to the Lessee's other obligations
hereunder, the Lessee will reimburse the Lessor and the Agent, within
ten (10) Business Days after written request, for all reasonable costs
and expenses incurred by the Lessor or Agent during the period ending on
the first anniversary of the Lease Termination Date in connection with
the marketing, sale, closing or transfer of the Leased Property, which
obligation shall survive the Lease Termination Date and the termination
or expiration of this Lease.
Section 14.8 Return of Leased Property. If the Lessor retains its
-------------------------
interest in the Leased Property pursuant to Section 14.7 hereof, then
------------
the Lessee shall, on the Lease Termination Date, and at its own expense,
return possession of the Leased Property leased by it to the Lessor for
retention by the Lessor or, if the Lessee properly exercises the
Remarketing Option and fulfills all of the conditions of Section 14.6
------------
hereof and neither the Lessor nor the Agent rejects such purchase offer
pursuant to Section 14.6, then the Lessee shall, on such Lease
------------
Termination Date, and at its own cost, transfer possession of the Leased
Property leased by it to the independent purchaser thereof, in each case
by surrendering the same into the possession of the Lessor or such
purchaser, as the case may be, free and clear of all Liens other than
the Lessor Liens, in as good condition as it was on the Completion Date
therefor in the case of new Construction, or the
30
Funding Date (as modified by Alterations permitted by this Lease),
ordinary wear and tear excepted, and in compliance with all Applicable
Laws and all other requirements of this Lease and the other Operative
Documents. The Lessee shall, on and within a reasonable time before and
after the Lease Termination Date, cooperate with the Lessor and the
independent purchaser of the Leased Property leased by the Lessee in
order to facilitate the ownership and operation by such purchaser of the
Leased Property after the Lease Termination Date, which cooperation
shall include the following, all of which the Lessee shall do on or
before the Lease Termination Date: providing all books and records
regarding the maintenance and ownership of the Leased Property and all
know-how, data and technical information relating thereto, providing a
copy of the Plans and Specifications, granting or assigning all licenses
necessary for the operation and maintenance of the Leased Property and
cooperating in seeking and obtaining all necessary Governmental Actions.
The Lessee shall have also paid the cost of all Alterations commenced
prior to the Lease Termination Date. The obligations of the Lessee under
this Article XIV shall survive the expiration or termination of this
-----------
Lease.
Section 14.9 Renewal.
-------
(a) Subject to the conditions set forth herein, the Lessee may
by written notice to the Lessor and the Agent given not later than
ninety (90) days prior to the Construction Term Expiration Date, request
the renewal of this Lease for a renewal period equal to the Construction
Term, but in no event in excess of twelve (12) months, commencing on the
date following the Lease Termination Date. No later than the date that
is forty-five (45) days after the date the request to renew has been
delivered to each of the Lessor and the Agent, the Agent will notify the
Lessee whether or not the Lessor's and the Lenders' consent (which
consent, in the case of the Lessor and the Lenders, may be granted or
denied in their sole discretion) to such renewal request (which renewal
shall require the unanimous consent of the Lessor and the Lenders and
may be conditioned on such conditions precedent as may be specified by
the Lessor and the Lenders). If the Agent fails to respond within such
timeframe, such failure shall be a rejection of such request. If the
Agent notifies the Lessee of the Lessor's and the Lenders' consent to
such renewal, such renewal shall be effective as of the Lease
Termination Date.
(b) Subject to the conditions set forth herein and the terms and
conditions of the Bond Lease, the Lessee may, by written notice to the
Lessor and the Agent given not later than twelve (12) months and not
earlier than sixteen (16) months prior to the then scheduled Lease
Termination Date, request the renewal of this Lease, for five (5) years
in the case of the first renewal term and up to five years in the case
of the second renewal term, provided that in no event shall the term of
this Lease exceed fifteen (15) years from the date of this Lease, in
each case commencing on the date following such Lease Termination Date.
No later than the date that is forty-five (45) days after the date the
request to renew has been delivered to each of the Lessor and the Agent,
the Agent will notify the Lessee whether or not the Lessor and the
Lenders consent (such consent, in the case of the Lessor and the
Lenders, may be granted or denied in their sole discretion) to such
renewal request (which renewal shall require the unanimous consent of
the Lessor and the Lenders, and may be conditioned on such conditions
precedent as may be
31
specified by the Lessor and the Lenders). If the Agent fails to respond
within such time frame, such failure shall be deemed to be a rejection
of such request. If the Agent notifies the Lessee of the Lessor's and
the Lenders' consent to such renewal, such renewal shall be effective as
of the then scheduled Lease Termination Date. The Lessee, at its sole
cost and expense, shall be permitted to replace any Lender that rejects
or is deemed to have rejected such request, provided that such
--------
replacement Lender is an Eligible Assignee, the replacement complies
with Section 6.2 of the Master Agreement and the replacement occurs at
least twelve (12) months prior to the then scheduled Lease Termination
Date; provided, however, that, in the event that the Lessee shall have
-------- -------
irrevocably elected to purchase the Leased Property pursuant to the
terms of this Lease if this Lease is not renewed as provided for herein
and written notice of such election shall have been delivered to the
Lessor and the Agent at least twelve (12) months prior to the then
scheduled Lease Termination Date, then such replacement shall occur at
lease six (6) months prior to the then scheduled Lease Termination Date.
Section 14.10 Environmental Report. Upon termination of this
--------------------
Lease, unless the Lessee have exercised the Remarketing Option and
complied with Section 14.6, the Lessee shall deliver, at the Lessee's
------------
expense, to the Lessor and the Agent an environmental assessment of the
Leased Property leased by it at any time during the Lease Term. Such
environmental assessment shall be prepared by an environmental
consultant, and shall be in a form, reasonably satisfactory to the
Lessor and the Agent.
ARTICLE XV
LESSEE'S EQUIPMENT
------------------
After any repossession of the Leased Property (whether or not this
Lease has been terminated), the Lessee, at its sole cost and expense and
so long as such removal of such trade fixtures, personal property or
equipment shall not result in a violation of Applicable Law, shall,
within a reasonable time after such repossession or within sixty (60)
days after the Lessee's receipt of the Lessor's written request
(whichever shall first occur), remove all of the Lessee's trade
fixtures, personal property and equipment from the Leased Property (to
the extent that the same can be readily removed from the Leased Property
without causing material damage to the Leased Property); provided,
--------
however, that the Lessee shall not remove any such trade fixtures,
- -------
personal property or equipment that has been financed by the Lessor
under the Operative Documents or otherwise constituting Leased Property
(or that constitutes a replacement of such property). Any of the
Lessee's trade fixtures, personal property and equipment not so removed
by the Lessee within such period shall be considered abandoned by the
Lessee, and title thereto shall without further act vest in the Lessor,
and may be appropriated, sold, destroyed or otherwise disposed of by the
Lessor without notice to the Lessee and without obligation to account
therefor and the Lessee will pay the Lessor, upon written demand, all
reasonable costs and expenses incurred by the Lessor in removing,
storing or disposing of the same and all costs and expenses incurred by
the Lessor to repair any damage to the Leased Property caused by such
removal. The Lessee will immediately repair at its expense all damage to
the Leased Property caused by any such removal (unless such removal is
effected by the Lessor, in which event the
32
Lessee shall pay all reasonable costs and expenses incurred by the
Lessor for such repairs). The Lessor shall have no liability in
exercising the Lessor's rights under this Article XV, nor shall the
----------
Lessor be responsible for any loss of or damage to the Lessee's personal
property and equipment.
ARTICLE XVI
RIGHT TO PERFORM FOR LESSEE
---------------------------
If the Lessee shall fail to perform or comply with any of its
agreements contained herein, the Lessor, upon ten (10) days' prior
notice to the Lessee (except in the case of an emergency), may perform
or comply with such agreement, and the 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 the 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 Lessee to the Lessor within ten (10) days after written
demand therefor.
ARTICLE XVII
MISCELLANEOUS
-------------
Section 17.1 Reports. To the extent required under Applicable Law
-------
and to the extent it is reasonably practical for the Lessee to do so,
the Lessee shall prepare and file in timely fashion, or, where such
filing is required to be made by the Lessor or it is otherwise not
reasonably practical for the Lessee to make such filing, Lessee shall
prepare and deliver to the Lessor (with a copy to the Agent) within a
reasonable time prior to the date for filing and the Lessor shall file,
any material reports with respect to the condition or operation of the
Leased Property that shall be required to be filed with any Governmental
Authority.
Section 17.2 Binding Effect; Successors and Assigns. The terms and
--------------------------------------
provisions of this Lease, and the respective rights and obligations
hereunder of the Lessor and the Lessee, shall be binding upon their
respective successors, legal representatives and assigns (including, in
the case of the Lessor, any Person to whom the Lessor may transfer the
Leased Property 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 to the
benefit of their respective permitted successors and assigns. The Lessee
hereby acknowledges that the 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 the Lessor's rights hereunder may be exercised by the Agent and
all notices, deliveries or communications to or with the Lessor shall be
provided to or be made with the Agent.
Section 17.3 Quiet Enjoyment. Subject to the terms and conditions
---------------
of the Bond Lease and the Bond Deed of Trust, the Lessor covenants that
it will not interfere in the Lessee's or any of its permitted
sublessees' quiet enjoyment of the Leased Property in accordance with
this Lease
33
during the Lease Term, so long as no Potential Event of Default or Event
of Default has occurred. Such right of quiet enjoyment is independent
of, and shall not affect, the Lessor's rights otherwise to initiate
legal action to enforce the obligations of the Lessee under this Lease.
Section 17.4 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 the Lessor: Atlantic Financial Group, Ltd.
c/o Grogan & Brawner
2808 Fairmount, Suite 250
Dallas, Texas 75201
Attn: Stephen S. Brookshire
If to the Lessee: Edward D. Jones & Co., L.P.
12555 Manchester Road
St. Louis, Missouri 63131-3729
Attn: Kenneth E. Schutte
If to the Agent: SunTrust Bank
303 Peachtree Street, 3rd Floor
Mail Code 1928
Atlanta, Georgia 30308
Attn: Linda L. Dash
If to a Lender, to the address provided in the Master Agreement.
Section 17.5 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 the Lessee shall remain liable to perform its
obligations hereunder except to the extent of such unenforceability. To
the extent permitted by Applicable Law, the Lessee hereby waives any
provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
Section 17.6 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
the Lessor and the Lessee in accordance with the provisions of Section
8.4 of the Master Agreement. This Lease, together with the Lease
Supplement and
34
the other Operative Documents, is intended by the parties as a final
expression of their 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 17.7 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.
Section 17.8 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 17.9 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 17.10 GOVERNING LAW. THIS LEASE SHALL IN ALL RESPECTS BE
-------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
GEORGIA 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 17.11 Reserved.
--------
Section 17.12 Liability of the Lessor Limited. Except as otherwise
-------------------------------
expressly provided below in this Section 17.12, it is expressly
-------------
understood and agreed by and between the Lessee, the Lessor and their
respective successors and assigns that nothing herein contained shall be
construed as creating any liability of the 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 the Lessor's gross negligence
or willful misconduct, except to the extent imputed to the Lessor by
virtue of the Lessee's action or failure to act), if any, being
expressly waived by the Lessee and by each and every Person now or
hereafter claiming by, through or under the Lessee, and that, so far as
the Lessor or any of its Affiliates or any of their respective officers,
directors,
35
employees or agents, individually or personally, is concerned, the
Lessee and any Person claiming by, through or under the Lessee shall
look solely to the right, title and interest of the Lessor in and to the
Leased Property and any proceeds from the Lessor's sale or encumbrance
thereof (provided, however, that the Lessee shall not 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 the Lessor's gross
negligence or willful misconduct, except to the extent imputed to the
Lessor by virtue of the Lessee's action or failure to act).
Section 17.13 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 the 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
the 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 after due
inquiry and investigation, 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 17.14 No Joint Venture. Any intention to create a joint
----------------
venture, partnership or other fiduciary relationship between the Lessor
and the Lessee is hereby expressly disclaimed.
Section 17.15 No Accord and Satisfaction. The acceptance by the
--------------------------
Lessor of any sums from the Lessee (whether as Basic Rent or otherwise)
in amounts which are less than the amounts due and payable by the Lessee
hereunder is not intended, nor shall be construed, to constitute an
accord and satisfaction of any dispute between the Lessor and the Lessee
regarding sums due and payable by the Lessee hereunder, unless the
Lessor specifically deems it as such in writing.
Section 17.16 No Merger. In no event shall the leasehold
---------
interests, estates or rights of the 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 the Lessor in or to the Leased
Property, it being understood that such leasehold interests, estates and
rights of the 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 the Lessor's interests, estates and rights in or to the
Leased Property,
36
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 17.17 Survival. The obligations of the Lessee to be
--------
performed under this Lease prior to the Lease Termination Date and the
obligations of Lessee pursuant to Articles III, IV, X, XI, XIII,
------------ -- - -- ----
Sections 6.3, 14.2, 14.3, 14.4, 14.5, 14.6(f), (g), (h), and (i), 14.7,
- ------------ ---- ---- ---- ---- ------- --- --- --- ----
14.8, 14.10, Articles XV and XVI, and Sections 17.1, 17.10 and 17.12
- ---- ----- ----------- --- ------------- ----- -----
shall survive the expiration or termination of this Lease. The extension
of any applicable statute of limitations by the Lessor, the Lessee, the
Agent or any Indemnitee shall not affect such survival.
Section 17.18 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 17.19 Time of Essence. Time is of the essence of this
---------------
Lease.
Section 17.20 Recordation of Lease. The Lessee will, at its
--------------------
expense, cause this Lease or a memorandum of lease in form and substance
reasonably satisfactory to the Lessor and the Lessee (if permitted by
Applicable Law) to be recorded in the proper office or offices in the
State(s) and the municipalities in which the Land is located.
Section 17.21 Investment of Security Funds. The parties hereto
----------------------------
agree that any amounts not payable to the Lessee pursuant to any
provision of Article VIII, X or XIV or this Section 17.21 shall be held
------------ - --- -------------
by the Agent (or the Lessor if the Loans have been fully paid) as
security for the obligations of the Lessee under this Lease and the
Master Agreement and of the 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 Lessee's obligations hereunder or
under the Master Agreement (which application is hereby agreed to by the
Lessee), shall be paid to the Lessee. Any such amounts which are held by
the Agent (or the Lessor if the Loans have been fully paid) pending
payment to the Lessee shall until paid to the Lessee, as provided
hereunder or until applied against the Lessee's obligations herein and
under the Master Agreement and the other Operative Documents 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 the Lessor, as the case
may be, as directed from time to time in writing by the Lessee
(provided, however, if a Potential Event of Default or an Event of
-------- -------
Default has occurred, it will be directed by the Agent or, if the Loans
have been fully paid, the Lessor) and at the expense and risk of the
Lessee, in investments permitted by the Required Lenders. 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. The Lessee upon demand shall pay
to the Agent or the Lessor, as appropriate, the amount of any loss
incurred in connection with all such investments and the liquidation
thereof.
37
Section 17.22 Bond Lease. The Lessee will, at its expense, timely
----------
perform all of the obligations of the Lessor, in its capacity as lessee,
under the Bond Lease and all obligations of the Lessor and the Lessee
under any and all documents, instruments and agreements related thereto,
including, without limitation, the other Bond Documents, and, if
requested by the Lessor, shall provide satisfactory evidence to the
Lessor of such performance.
Section 17.23 Land and Building. If the Building and the Land on
-----------------
which the Building is located are subject to separate Lease Supplements,
at any time that the Lessee exercises an option to purchase the Lessor's
interest in the Building or the Land, or to renew this Lease with
respect to the Building or the Land, or is obligated to purchase the
Lessor's interest in the Building or the 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 the Lessor's
interest in the Building and the Land.
[Signature page follows]
38
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.
EDWARD D. JONES & CO., L.P., a
Missouri limited partnership, as the Lessee
By: EDJ Holdings Company, Inc., a
Missouri corporation, its sole general
partner
By:__________________________________________
Name:________________________________________
Title:_______________________________________
S-1
MASTER LEASE AGREEMENT
ATLANTIC FINANCIAL GROUP, LTD.,
a Texas limited partnership (registered to do
business in Missouri as Atlantic Financial
Group, L.P.), as the Lessor
By: Atlantic Financial Managers, Inc., its
General Partner
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
S-2
MASTER LEASE AGREEMENT
EXHIBIT A
This instrument prepared by and when recorded return to:
McGuireWoods LLP, One James Center, Richmond, Virginia 23219, Attention:
Edmund S. Pittman, Esquire
============================================================================
LEASE SUPPLEMENT, MEMORANDUM OF LEASE
AND FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT
Dated as of September 18, 2001
among
ATLANTIC FINANCIAL GROUP, LTD.
(registered to do business in Missouri as Atlantic Financial Group, L.P.),
as Lessor
EDWARD D. JONES & CO., L.P.,
as Lessee,
and
, Trustee,
---------------------------
for the use and
benefit of Lessor
St. Louis County, Missouri
============================================================================
THIS INSTRUMENT IS INTENDED ALSO TO BE A FIXTURE FILING TO BE FILED IN
THE REAL ESTATE RECORDS OF ST. LOUIS COUNTY, MISSOURI.
THIS FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT SECURES FUTURE
ADVANCES AND FUTURE OBLIGATIONS AND SHALL BE GOVERNED BY SECTION 443.055
RSMO, AS AMENDED. THE TOTAL PRINCIPAL AMOUNT OF THE PRESENT AND FUTURE
OBLIGATIONS WHICH MAY BE SECURED HEREBY IS $24,000,000.
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS; INTERPRETATION............................... 2
SECTION 2. THE SUBJECT PROPERTY...................................... 2
SECTION 3. NATURE OF TRANSACTION; DEED OF TRUST ..................... 2
SECTION 4. RATIFICATION; INCORPORATION .............................. 10
SECTION 5. ORIGINAL LEASE SUPPLEMENT................................. 10
SECTION 6. GOVERNING LAW............................................. 10
SECTION 7. COUNTERPART EXECUTION..................................... 10
EXHIBITS:
- ---------
EXHIBIT A - Description of Land
EXHIBIT B - Schedule of Equipment
i
LEASE SUPPLEMENT, MEMORANDUM OF LEASE
AND FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT
-------------------------------------------------------
THIS FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT SECURES FUTURE
ADVANCES AND FUTURE OBLIGATIONS AND SHALL BE GOVERNED BY SECTION 443.055
RSMO, AS AMENDED. THE TOTAL PRINCIPAL AMOUNT OF THE PRESENT AND FUTURE
OBLIGATIONS WHICH MAY BE SECURED HEREBY IS $24,000,000.
THIS LEASE SUPPLEMENT, MEMORANDUM OF LEASE AND FUTURE ADVANCE DEED
OF TRUST AND SECURITY AGREEMENT (this "Lease Supplement") dated as of
----------------
September 18, 2001 between ATLANTIC FINANCIAL GROUP, LTD., a Texas
limited partnership (registered to do business in Missouri as Atlantic
Financial Group, L.P.), having an address of 2305 Cedar Springs Road,
Suite 415, Dallas, Texas 75201, as the lessor (the "Lessor"), and EDWARD
------
D. JONES & CO., L.P., a Missouri limited partnership, having an address
of 12555 Manchester Road, St. Louis, Missouri 63131-3729, as lessee (the
"Lessee") and , a , as trustee
------ ------------------------ --------------------
(the "Trustee"), having an address of , for
------- -----------------------------
the benefit of the Lessor.
RECITALS:
The Lessor and the Lessee have entered into a Master Lease
Agreement, dated as of the date hereof (as restated, amended,
supplemented or otherwise modified from time to time, the "Lease"). The
Lessor desires to lease to the Lessee, and the Lessee desires to lease
from the Lessor, (a) the Lessor's leasehold interest in the land
described on Exhibit A attached hereto and incorporated herein, created
---------
pursuant to the Bond Lease, together with the following appurtenant
rights (the "Appurtenant Rights"): (i) all agreements, easements, rights
------------------
of way or use, rights of ingress or egress, privileges, appurtenances,
tenements, hereditaments, reversions, remainders, water rights and other
rights and benefits at any time belonging or pertaining to the land or
the improvements thereon, including, without limitation, the use of any
streets, ways, alleys, vaults or strips of land adjoining, abutting,
adjacent or contiguous to the land, (ii) all permits, licenses and
rights, whether or not of record, appurtenant to the land (such land and
Appurtenant Rights being referred to as the "Land") and (b) the
----
buildings, structures and improvements located or to be located on the
Land, along with all fixtures used or useful in connection with the
operation thereof or of the Land, including, without limitation, all
furnaces, boilers, compressors, elevators, fittings, pipings,
connectives, conduits, ducts, partitions, equipment and apparatus of
every kind and description now or hereafter affixed or attached to the
building and all Alterations (including all restorations, repairs,
replacements and rebuilding of such buildings, improvements and
structures) thereto (the "Building") and all of the following equipment
--------
(the "Equipment"): all fixtures, personal property, chattels, business
---------
machines, machinery, apparatus, equipment, furnishings, fittings and all
appurtenances and additions thereto and substitutions or replacements
thereof (together with, in each case, attachments, components, parts and
accessories) currently owned or subsequently acquired by the Lessor or
the Lessee and now or subsequently affixed or attached to, or contained
in or used or usable in any way in connection with any operation or
letting of the Land, Building or Equipment, including but without
limiting the generality of the foregoing, all personal property and
equipment described on Exhibit B attached hereto and made a part hereof,
---------
all signs, screens, awnings, shades, blinds, curtains, draperies,
artwork, carpets,
rugs, storm doors and windows, furniture and furnishings, heating,
electrical, and mechanical equipment, lighting, switchboards, plumbing,
ventilating, air conditioning and air-cooling apparatus, furnaces,
boilers, compressors, elevators, refrigerating, and incinerating
equipment, escalators, refrigerators, display cases, shelving, racking,
movable and demountable partitions, elevators, loading and unloading
equipment and systems, stoves, ranges, laundry equipment, cleaning
systems (including window cleaning apparatus), snow removal and lawn
maintenance equipment, motorized vehicles, telephones, communication
systems (including satellite dishes and antennae), televisions,
computers, sprinkler systems and other fire prevention and extinguishing
apparatus and materials, security systems, motors, engines, machinery,
pipes, pumps, tanks, connectives, conduits, ducts, partitions,
appliances, equipment, apparatus, fittings and fixtures of every kind
and description but excluding the Lessee's Personal Property (the Land,
and the Building and the Equipment being referred to hereinafter as the
"Subject Property").
----------------
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. Capitalized terms not
---------------------------
otherwise defined in this Lease Supplement shall have the respective
meanings assigned thereto in the Appendix A to the Master Agreement (as
----------
amended, supplemented or otherwise modified from time to time the
"Master Agreement"), dated as of the date hereof among the Lessee, the
----------------
Lessor, SunTrust Bank, as Agent, and the Lenders parties thereto (the
"Lenders") and joined in by The Jones Financial Companies, L.L.L.P., and
-------
the rules of interpretation set forth in Appendix A shall apply to this
----------
Lease Supplement. Copies of the Master Agreement, the Lease and the
other Operative Documents (as defined in the Master Agreement) are on
file at the office of the Agent.
SECTION 2. The Subject Property. Effective upon the execution and
--------------------
delivery of this Lease Supplement by the Lessor and the Lessee, the
Subject Property shall be subject to the terms and provisions of the
Lease, and the Lessor hereby leases the Subject Property to the Lessee,
and the Lessee hereby hires and leases the Subject Property from the
Lessor. The term of the Lease with respect to the Subject Property
begins on the date hereof and ends on September 18, 2006, subject to the
right of the Lessee to extend the Lease in accordance with the terms and
conditions set forth in the Lease and the other Operative Documents. The
Lease contains certain purchase rights and options during the term of
the Lease pursuant to which the Lessee may acquire the Subject Property,
all as more fully set forth in the Lease.
SECTION 3. Nature of Transaction; Deed of Trust. The Lessor and
------------------------------------
the Lessee intend that the Lease and this Lease Supplement be treated,
for accounting purposes, as an operating lease. For federal, state and
local tax purposes and for bankruptcy, commercial and regulatory law and
all other purposes, the Lessee and the Lessor intend that the
transaction represented by the Lease and this Lease Supplement be
treated as a financing transaction. For such purposes, it is the
intention of the parties hereto (i) that the Lease and this Lease
Supplement be treated as a deed of trust and security agreement,
encumbering the Subject Property, and that the Lessee, as grantor,
hereby grants to the Trustee, with power of sale, as trustee for the
benefit of the Lessor, as beneficiary and secured party, or any
successor thereto, the Subject Property and a first and paramount Lien
thereon, (ii) that the Lessor shall have, as a result of such
determination, all of
2
the rights, powers and remedies of a mortgagee, deed of trust
beneficiary or secured party available under Applicable Law to take
possession of and sell (whether by foreclosure or otherwise) the Subject
Property, (iii) the Trustee shall have the customary powers of a trustee
under a leasehold deed of trust encumbering a leasehold interest in real
property, (iv) that the effective date of such deed of trust shall be
the effective date of this Lease Supplement, (v) that the recording of
this Lease Supplement shall be deemed to be the recording of such deed
of trust, and (vi) that the obligations secured by such deed of trust
shall include the Funded Amounts and all Basic Rent and Supplemental
Rent hereunder and all other obligations of and all amounts due from the
Lessee hereunder and under the Operative Documents. In furtherance of
the foregoing, the Lessor (for the remainder of this Section called
"Loan Party"), and the Lessee (for the remainder of this Section called
----------
"Grantor") agree as follows:
-------
A. This instrument shall constitute a Future Advance Deed of Trust
and Security Agreement dated as of September 18, 2001 (this "Deed of
-------
Trust"), made by the Lessee (the "Grantor"), having an address at 12555
----- -------
Manchester Road, St. Louis, Missouri 63131-3729, to ,
----------------
having an address of , as trustee ("the
---------------------------
Trustee"), for the benefit of Atlantic Financial Group, Ltd., a Texas
-------
limited partnership (registered to do business in Missouri as Atlantic
Financial Group, L.P.), having an address of 2305 Cedar Springs Road,
Suite 415, Dallas, Texas 75201 (the "Loan Party").
----------
B. TO SECURE PAYMENT OF ALL AMOUNTS OWING BY THE GRANTOR UNDER THE
LEASE AND THE OTHER OPERATIVE DOCUMENTS AND THE PAYMENT AND PERFORMANCE
OF ALL OTHER OBLIGATIONS UNDER THE OPERATIVE DOCUMENTS, THE GRANTOR
HEREBY CONVEYS TO THE TRUSTEE AND HEREBY BARGAINS, SELLS, CONVEYS,
CONFIRMS, GRANTS, ASSIGNS, TRANSFERS, WARRANTS AND SETS OVER TO THE
TRUSTEE, WITH POWER OF SALE, THE SUBJECT PROPERTY AND ALL RENTS, LEASES,
ISSUES AND PROCEEDS THEREOF (INCLUDING AWARDS AND INSURANCE,
CONDEMNATION AND OTHER LOSS PROCEEDS), WITH GENERAL WARRANTY OF TITLE,
IN TRUST FOR THE USE AND BENEFIT OF THE LOAN PARTY, AND GRANTS THE LOAN
PARTY A SECURITY INTEREST IN THE SUBJECT PROPERTY AND ALL RENTS, LEASES,
ISSUES AND PROCEEDS THEREOF (INCLUDING AWARDS AND INSURANCE,
CONDEMNATION AND OTHER LOSS PROCEEDS), TO HAVE AND TO HOLD the Subject
Property and the rights and privileges hereby granted unto the Trustee,
its successors and assigns for the uses and purposes set forth, until
all amounts owed by and all other obligations to be paid or performed by
the Grantor under the Lease and the other Operative Documents are
indefeasibly paid and performed in full.
C. If an Event of Default has occurred and is continuing under the
Lease, at the direction of the Loan Party:
(i) The Loan Party or its agents may enter and take possession
of the Subject Property by actual physical possession or by written
notice served personally upon or sent by registered or certified
mail, postage prepaid, to the Grantor, and the Grantor shall
surrender possession upon request and the Loan Party may take
possession
3
without further authorization required, and may let the Subject
Property and receive the rents, issues and profits thereof, make
repairs and apply said rentals and profits, after payment of all
necessary or proper charges and expenses, on account of the amounts
hereby secured.
(ii) The Loan Party, shall, as a matter of contract right, at
the option of the Loan Party, be entitled to the appointment of a
receiver for the Subject Property, and the Grantor hereby consents
to such appointment without the posting of a bond or undertaking
without regard to the value of the Subject Property and waives
notice of any application therefor.
(iii) The Trustee may proceed to sell the Subject Property at
public auction, as a whole or in such parcels, for cash or credit
and, in addition to the requirements imposed by state law, upon any
terms as the Trustee deems appropriate. Before such sale at public
auction is made, there shall first be such notice of default and
such notice or advertisement of the time, place and terms of sale as
required by Applicable Law. Such sale may be postponed for any
reason, from time to time, to the extent permitted by Applicable
Law. In the event the sale is postponed, the Trustee shall advertise
or give notice of any subsequent sale in the same manner as the
original advertisement or notice of sale provided for above or
otherwise as may be permitted by Applicable Law. The Trustee shall
execute and deliver to the purchaser its Trustee's deed conveying
that portion of the Subject Property so sold, but without any
covenant or warranty, express or implied. The recitals in the
Trustee's deed of any matters or facts shall be conclusive proof of
the truthfulness thereof. The Loan Party may become the purchaser of
the Subject Property so sold, and no purchaser shall be required to
see to the proper application of the purchase money. Unless
otherwise required by Applicable Law, the Trustee shall apply the
proceeds of sale as directed by the Loan Party. The Grantor agrees
to surrender possession of the Subject Property so sold to the
purchaser at the sale immediately after such sale.
D. The Grantor hereby waives the benefit of all appraisement,
valuation, stay, extension, reinstatement and redemption laws (whether
equitable or statutory) now or hereafter in force and all rights of
marshaling in the event of any sale of the Subject Property or any
interest therein.
E. The Trustee shall be entitled to enforce payment of the
indebtedness and performance of the Lessee's obligations and to exercise
all rights and powers under this instrument or under any of the other
Operative Documents or other agreement or any laws now or hereafter in
force, notwithstanding some or all of the Lessee's obligations may now
or hereafter be otherwise secured, whether by deed of trust, deed to
secure debt, mortgage, security agreement, pledge, lien, assignment or
otherwise. Neither the acceptance of this instrument nor its
enforcement, shall prejudice or in any manner affect the Trustee's right
to realize upon or enforce any other security now or hereafter held by
the Trustee, it being agreed that the Trustee shall be entitled to
enforce this instrument and any other security now or hereafter held by
the Trustee in such order and manner as the Trustee or the Loan Party
may determine in its or their absolute discretion. No remedy herein
conferred upon or reserved to the Trustee or the Loan Party is intended
to
4
be exclusive of any other remedy herein or by law provided or permitted,
but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity
or by statute. Every power or remedy given by any of the Operative
Documents to the Trustee or the Loan Party or to which they may
otherwise be entitled, may be exercised, concurrently or independently,
from time to time and as often as may be deemed expedient by the Loan
Party. In no event shall the Trustee, in the exercise of the remedies
provided in this instrument (including, without limitation, the
appointment of a receiver and the entry of such receiver on to all or
any part of the Subject Property), be deemed a "mortgagee in
possession," and the Trustee shall not in any way be made liable for any
act, either of commission or omission, in connection with the exercise
of such remedies.
F. The Trustee's sole duty with respect to the custody, safekeeping
and physical preservation of any Subject Property in its possession,
under Section 9-207 of the UCC as in effect in the state in which the
Subject Property is located (the "UCC") or otherwise, shall be to deal
---
with it in the same manner as the Trustee deals with similar property
for its own account. Neither the Trustee, the Loan Party nor any of
their respective directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon any of the Subject
Property or for any delay in doing so or shall be under any obligation
to sell or otherwise dispose of any Subject Property upon the request of
the Grantor or any other Person or to take any other action whatsoever
with regard to the Subject Property or any part thereof.
G. All powers, authorizations and agencies contained in this Deed of
Trust are coupled with an interest and are irrevocable until this
instrument is terminated and the lien created hereby is released.
H. Pursuant to Section 9-402 of the UCC as in effect in the state in
which the Subject Property is located, the Grantor authorizes the
Trustee or the Loan Party to file financing statements with respect to
the Subject Property with the signature of the Grantor in such form and
in such filing offices as the Trustee or the Loan Party reasonably
determines appropriate to perfect the security interests of the Trustee
and the Loan Party under this Deed of Trust. A carbon, photographic or
other reproduction of this Deed of Trust shall be sufficient as a
financing statement for filing in any jurisdiction.
I. It is the intention of the parties hereto that this instrument
shall constitute a Security Agreement within the meaning of the UCC, and
the Grantor hereby grants the Loan Party a security interest in all
Subject Property which is personal property, including, without
limitation, all proceeds, both cash and noncash, of any of the foregoing
(the "Personal Property"). If an Event of Default shall occur, then in
-----------------
addition to having any other right or remedy available at law or in
equity, the Trustee, at the direction of the Loan Party, shall have the
option of either (i) proceeding under the UCC and exercising such rights
and remedies as may be provided to a secured party by the UCC with
respect to all or any portion of the Subject Property which is personal
property (including, without limitation, taking possession of and
selling such property) or (ii) treating such property as real property
and proceeding with respect to both the real and
5
personal property constituting the Subject Property in accordance with
the Trustee's rights, powers and remedies with respect to the real
property (in which event the default provisions of the UCC shall not
apply). If the Trustee, at the direction of the Loan Party, shall elect
to proceed under the UCC, then five (5) days' notice of sale of the
personal property shall be deemed reasonable notice and the reasonable
expenses of retaking, holding, preparing for sale, selling and the like
incurred by the Trustee or the Loan Party shall include, but not be
limited to, attorneys' fees and legal expenses. At the Trustee's
request, the Grantor shall assemble the personal property and make it
available to the Trustee and the Loan Party at a place designated by the
Trustee or the Loan Party which is reasonably convenient to both
parties. The Grantor stipulates and agrees that a sale of the Personal
Property in conjunction with the Subject Property is a commercially
reasonable manner of disposing of the Personal Property. The Loan Party
also may (x) require the Grantor to, and the Grantor hereby agrees that
the Grantor will at the Grantor's expense and upon request of the Loan
Party forthwith, assemble all or part of the Personal Property as
directed by the Loan Party and make it available to the Loan Party at a
place to be designated by the Loan Party which is reasonably convenient
to the parties, and (y) sell the Personal Property or any part thereof
in one or more parcels at public or private sale for cash or credit or
for future delivery, and at such price or prices and upon such other
terms as the Loan Party may deem commercially reasonable. The Loan Party
shall not be obligated to make any sale of the Personal Property
regardless of notice of sale having been given. The Loan Party may
adjourn any public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
The Grantor, the Trustee and the Loan Party further agree, to the
extent permitted by law, that this instrument upon recording or
registration in the real estate records of the proper office shall
constitute a financing statement filed as a "fixture filing" within the
meaning of Sections 9-313 and 9-402 of the UCC as in effect in the state
in which the Subject Property is located.
The Grantor, upon request by the Trustee or the Loan Party from time
to time, shall execute, acknowledge and deliver to the Trustee or the
Loan Party one or more separate security agreements, in form
satisfactory to the Trustee and the Loan Party, covering all or any part
of the Subject Property and will further execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, any
financing statement, affidavit, continuation statement or certificate or
other document as the Trustee or the Loan Party may request in order to
perfect, preserve, maintain, continue or extend the security interest
under and the priority of this instrument. The Grantor further agrees to
pay to the Trustee and the Loan Party on demand all costs and expenses
incurred by the Trustee or the Loan Party in connection with the
preparation, execution, recording, filing and refiling of any such
document and all reasonable costs and expenses of any record searches
for financing statements the Trustee or the Loan Party shall reasonably
require. If the Grantor shall fail to furnish any financing or
continuation statement within ten (10) days after request by the Trustee
or the Loan Party, then pursuant to the provisions of the UCC, the
Grantor hereby authorizes the Trustee and the Loan Party, without the
signature of the Grantor, to execute and file any
6
such financing and continuation statements. The filing of any financing
or continuation statements in the records relating to personal property
or chattels shall not be construed as in any way impairing the right of
the Trustee to proceed against any personal property encumbered by this
Deed of Trust as real property, as set forth above.
J. The Grantor acknowledges that in connection with the rights and
responsibilities of the Trustee under this instrument with respect to
any action taken by the Trustee or the exercise or non-exercise by the
Trustee of any option, voting right, request, judgment or other right or
remedy provided for herein or resulting or arising out of this
instrument, as between the Grantor and the Loan Party, the Trustee shall
be conclusively presumed to be acting as agent for the Loan Party with
full and valid authority so to act or refrain from acting, and the
Grantor shall be under no obligation, or entitlement, to make any
inquiry respecting such authority.
K. Except as otherwise set forth herein, to the fullest extent
permitted by law, the Grantor waives the benefit of all laws now
existing or that may subsequently be enacted providing for (i) any
appraisement before sale of any portion of the Subject Property, (ii)
any extension of the time for the enforcement of the collection of the
indebtedness or the creation or extension of a period of redemption from
any sale made in collecting such debt and (iii) exemption of the Subject
Property from attachment, levy or sale under execution or exemption from
civil process. Except as otherwise set forth herein, to the full extent
the Grantor may do so, the Grantor agrees that the Grantor will not at
any time insist upon, plead, claim or take the benefit or advantage of
any law now or hereafter in force providing for any appraisement,
valuation, stay, exemption, extension, reinstatement or redemption, or
requiring foreclosure of this instrument before exercising any other
remedy granted hereunder, and the Grantor, for the Grantor and its
successors and assigns, and for any and all Persons ever claiming any
interest in the Subject Property, to the extent permitted by law, hereby
waives and releases all rights of reinstatement, redemption, valuation,
appraisement stay of execution, notice of election to mature or declare
due the whole of the secured indebtedness and marshaling in the event of
foreclosure of the liens hereby created.
L. If (a) the Subject Property shall consist of one or more parcels,
whether or not contiguous and whether or not located in the same city or
county, or (b) in addition to this instrument, the Trustee and the Loan
Party shall now or hereafter hold one or more additional mortgages,
liens, deeds of trust or other security (directly or indirectly) for the
obligations secured hereby upon other property in the state in which the
Subject Property is located (whether or not such property is owned by
the Grantor or by others) or (c) both the circumstances described in
clauses (a) and (b) shall be true, then to the fullest extent permitted
by law, the Trustee and the Loan Party may, in their discretion,
commence or consolidate in a single foreclosure action all foreclosure
proceedings against all such collateral securing the Obligations
(including the Subject Property), which action may be brought or
consolidated in the courts of any county in which any of such collateral
is located. The Grantor acknowledges that the right to maintain a
consolidated foreclosure action is a specific inducement to the Loan
Party to extend the Obligations, and the Grantor expressly and
irrevocably waives any objections to the commencement or
7
consolidation of the foreclosure proceedings in a single action and any
objections to the laying of venue or based on the grounds of forum non
---------
conveniens which it may now or hereafter have. The Grantor further
----------
agrees that if the Trustee or the Loan Party shall be prosecuting one or
more foreclosure or other proceedings against a portion of the Subject
Property or against any collateral other than the Subject Property,
which collateral directly or indirectly secures the Obligations, or if
the Trustee or the Loan Party shall have obtained a judgment of
foreclosure and sale or similar judgment against such collateral, then,
whether or not such proceedings are being maintained or judgments were
obtained in or outside the state in which the Subject Property is
located, the Trustee and the Loan Party may commence or continue
foreclosure proceedings and exercise its other remedies granted in this
instrument against all or any part of the Subject Property and the
Grantor waives any objections to the commencement or continuation of a
foreclosure of this instrument or exercise of any other remedies
hereunder based on such other proceedings or judgments and waives any
right to seek to dismiss, stay, remove, transfer or consolidate either
any action under this instrument or such other proceedings on such
basis. Neither the commencement nor continuation of proceedings to
foreclose this instrument nor the exercise of any other rights hereunder
nor the recovery of any judgment by the Trustee and the Loan Party in
any such proceedings shall prejudice, limit or preclude the Trustee's
and the Loan Party's rights to commence or continue one or more
foreclosure or other proceedings or obtain a judgment against any other
collateral (either in or outside the state in which the Subject Property
is located) which directly or indirectly secures the obligations secured
hereby. The Grantor hereby waives (i) any objections to the commencement
or continuation of an action to foreclose this Deed of Trust or exercise
of any other remedies hereunder based on any action being prosecuted or
any judgment entered with respect to the Obligations or any liens or
security interests that secure payment and performance of the
Obligations and (ii) any objections to the commencement of, continuation
of, or entry of a judgment in any such other action based on any action
or judgment connected to this Deed of Trust. The Grantor also waives any
right to seek to dismiss, stay, remove, transfer or consolidate either
such other proceedings or any action under this instrument based on any
action or judgment connected to this instrument. It is expressly
understood and agreed that to the fullest extent permitted by law, the
Trustee may, at its election, cause the sale of all collateral which is
the subject of a single foreclosure action at either a single sale or at
multiple sales conducted simultaneously and take such other measures as
are appropriate in order to effect the agreement of the parties to
dispose of and administer all collateral securing the obligations
secured hereby (directly or indirectly) in the most economical and least
time-consuming manner. In case of a foreclosure sale, the Trust Property
may be sold, at the Trustee's election, in one parcel or in more than
one parcel and the Trustee is specifically empowered (without being
required to do so, and in its sole and absolute discretion) to cause
successive sales of portions of the Subject Property to be held.
M. Except as expressly provided in the Operative Documents, the
Trustee and the Loan Party, with the express written consent of the
Grantor, may at any time or from time to time renew or extend this
instrument, or alter or modify the same in any way. The Trustee may
waive any of the terms, covenants or conditions hereof in whole or in
part and may release any portion of the Subject Property or any other
security, and grant such extensions and indulgences in relation to the
obligations secured hereby as the Loan
8
Party may determine without the consent of any other Person (including,
without limitation, the Grantor) and without any obligation to give
notice of any kind thereto and without in any manner affecting the
priority of the lien hereof on any part of the Subject Property.
N. If Trustee shall be made a party to or shall intervene in any
action or proceeding, whether in court or before any governmental
agency, affecting the Subject Property or the title thereto or the
interest of Trustee under this instrument, including, without
limitation, any form of condemnation or eminent domain proceeding,
Trustee shall be reimbursed by the Grantor upon demand for all costs,
charges and reasonable attorneys' fees incurred by it in any such case.
All such sums shall be secured hereby, are due and payable within ten
(10) days after demand, and if not paid within ten (10) days after
demand, shall bear interest at the Overdue Rate set forth in the
Operative Documents.
The Trustee shall be under no duty to take any action hereunder
except as expressly required, to perform any act which would involve it
in expense or liability, or to institute or defend any suit in respect
hereof, unless properly indemnified to its satisfaction. All reasonable
expenses, charges, counsel fees and other disbursements incurred by
Trustee from and after the occurrence of an Event of Default in and
about the administration and execution of the trust created hereby, and
the performance of its duties and powers hereunder shall be secured by
this instrument prior to the indebtedness represented by the Lease and
shall bear interest at the Overdue Rate set forth in the Operative
Documents. The Loan Party, with or without cause, is hereby authorized
and empowered to substitute and appoint, at any time and from time to
time, by an instrument recorded wherever this instrument is recorded, a
trustee in the place of any Trustee hereunder.
The Grantor agrees to indemnify, defend and hold the Trustee
harmless from and against any and all liability, loss, damage and
expense, including reasonable attorneys' fees, which it may incur by
reason of this instrument or by reason of any action taken by the
Trustee hereunder, and from and against any and all claims and demands
whatsoever which may be asserted against the Trustee by reason of any
alleged obligation or undertaking on its part to perform or discharge
any of the terms, covenants or conditions contained herein, unless
caused by the gross negligence or willful misconduct of the Trustee.
Should the Trustee incur any such liability, loss, damage or expense,
the amount thereof, together with interest thereon at the Overdue Rate
set forth in the Operative Documents, shall be secured by this
instrument and shall be payable by the Grantor to the Trustee within ten
(10) days after demand therefor.
O. Nothing in this instrument shall operate or be construed to
obligate the Trustee or the Loan Party to perform any obligations of the
Grantor contained in any lease of the Subject Property. This instrument
shall not operate to place upon the Loan Party or the Trustee any
responsibility for the operation, control, care, management or repair of
the Subject Property prior to the Trustee or the Loan Party taking
possession
9
thereof, and the execution of this Deed of Trust by the Grantor shall
constitute conclusive evidence that all responsibility for the
operation, control, care, management and repair of the Subject Property
prior to the Trustee or the Loan Party taking possession thereof is and
shall be that of Grantor.
P. This instrument is given to secure not only existing
indebtedness, but also future advances made pursuant to or as provided
in the Operative Documents, whether such advances are obligatory or to
be made at the option of the Loan Party, or otherwise, to the same
extent as if such future advances were made on the date of execution of
this instrument, although there may be no advance made at the time of
execution hereof, and although there may be no indebtedness outstanding
at the time any advance is made. To the fullest extent permitted by law,
the lien of this instrument shall be valid as to all such indebtedness,
including all revolving credit and future advances, from the time this
instrument is recorded.
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 UCC
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 GEORGIA, 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
ESTATE 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 ESTATE IS 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.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT GRANTOR AND LOAN
PARTY FROM MISUNDERSTANDING OR DISAPPOINTMENT,
10
ANY AGREEMENTS GRANTOR AND LOAN PARTY REACH COVERING SUCH MATTERS ARE
CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT
BETWEEN GRANTOR AND LOAN PARTY, EXCEPT AS GRANTOR AND LOAN PARTY MAY
LATER AGREE IN WRITING TO MODIFY IT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
11
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.
ATLANTIC FINANCIAL GROUP, LTD.
(registered to do business in Missouri as Atlantic
Financial Group, L.P.), as the Lessor
By: Atlantic Financial Managers, Inc.,
its General Partner
By:__________________________________
Name:________________________________
Title: ______________________________
N-1
LEASE SUPPLEMENT
EDWARD D. JONES & CO., L.P., as the Lessee
By: EDJ Holding Company, Inc., a Missouri
corporation, its sole general partner
By:_______________________________
Name:_____________________________
Title:____________________________
N-2
LEASE SUPPLEMENT
STATE OF TEXAS )
) ss.
COUNTY OF )
On this _____ day of September, 2001, before me, _______________, a
Notary Public in and for said County and State, personally appeared
__________________, to me personally known, who being by me duly sworn, did
say that (s)he is the ___________________ of Atlantic Financial Managers,
Inc., a Texas corporation, and the general partner of Atlantic Financial
Group, Ltd., a Texas limited partnership, and that the foregoing instrument
was signed on behalf of said corporation by authority of its Board of
Directors, and said _____________________ acknowledged said instrument to be
the free act and deed of said corporation as general partner of Atlantic
Financial Group, Ltd.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
notarial seal the day and year last above written.
____________________________________
Notary Public - State of Texas
My Commission Expires:______________
(notary seal)
N-1
LEASE SUPPLEMENT
STATE OF MISSOURI )
) ss.
COUNTY OF )
On this ____ day of September, 2001, before me ____________________, a
Notary Public in and for said County and State, personally appeared
__________________, to me personally known, who being by me duly sworn, did
say that (s)he is the ______________________ of EDJ Holding Company, Inc., a
Missouri corporation, and the general partner of Edward D. Jones & Co.,
L.P., a Missouri limited partnership, and that the foregoing instrument was
signed on behalf of said corporation by authority of its Board of Directors,
and said __________________ acknowledged said instrument to be the free act
and deed of said corporation as general partner of Edward D. Jones & Co.,
L.P.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
notarial seal the day and year last above written.
____________________________________
Notary Public - State of Missouri
My Commission Expires:______________
(notary seal)
N-2
LEASE SUPPLEMENT
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:___________________________
STATE OF GEORGIA )
)
COUNTY OF ____________ )
On this _____ day of September, 2001, before me, _________________, a
Notary Public in and for said County and State, personally appeared
_____________________, to me personally known, who being by me duly sworn,
did say that (s)he is the ____________________ of SunTrust Bank, a Georgia
banking corporation, and that the foregoing instrument was signed on behalf
of said corporation by authority of its Board of Directors, and said
____________________ acknowledged said instrument to be the free act and
deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
notarial seal the day and year last above written.
________________________________________
Notary Public - State of Georgia
My Commission Expires: _________________
(notary seal)
LEASE SUPPLEMENT
EXHIBIT A
Description of Land
-------------------
[TO BE ADDED]
LEASE SUPPLEMENT
EXHIBIT B
Schedule of Equipment
---------------------
[TO BE ADDED]
LEASE SUPPLEMENT