SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1999
-------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 0-24908
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TRANSPORT CORPORATION OF AMERICA, INC.
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(Exact name of registrant as specified in its charter)
MINNESOTA 41-1386925
--------------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1769 YANKEE DOODLE ROAD
EAGAN, MINNESOTA 55121
-----------------------------------------------------
(Address of principal executive offices and zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (651) 686-2500
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days: YES _X_ NO ___
As of August 13, 1999, the Company had outstanding 8,269,141 shares of Common
Stock, $.01 par value.
---------------------------------
<PAGE>
TRANSPORT CORPORATION OF AMERICA, INC.
Quarterly Report on Form 10-Q
TABLE OF CONTENTS
PART I FINANCIAL INFORMATION
Item 1. Financial Statements and Notes
Consolidated Balance Sheets as of
June 30, 1999 and December 31, 1998---------------------------Page 3
Consolidated Statements of Earnings for the three and
six months ended June 30, 1999 and 1998-----------------------Page 4
Consolidated Statements of Cash Flows for the
six months ended June 30, 1999 and 1998-----------------------Page 5
Notes to Consolidated Financial Statements----------------------Page 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations--------------------------------------Page 7
Item 3. Quantitative and Qualitative Disclosures about Market Risk------Page 15
PART II OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds-----------------------Page 16
Item 4. Submission of Matters to a Vote of Security Holders-------------Page 16
Item 6. Exhibits and Reports on Form 8-K--------------------------------Page 17
2
<PAGE>
ITEM 1. FINANCIAL STATEMENTS
Transport Corporation of America, Inc.
Consolidated Balance Sheets
(In thousands)
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
--------- ---------
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 1,576 $ 448
Trade accounts receivable, net 33,108 27,403
Other receivable 2,082 1,593
Operating supplies - inventory 1,463 1,378
Deferred income tax benefit 5,237 5,443
Prepaid expenses and tires 4,064 2,212
--------- ---------
Total current assets 47,530 38,477
Property and equipment:
Land, buildings, and improvements 20,858 18,759
Revenue equipment 212,720 179,042
Other equipment 12,176 9,905
--------- ---------
Total property and equipment 245,754 207,706
Less accumulated depreciation (51,164) (46,946)
--------- ---------
Property and equipment, net 194,590 160,760
Other assets, net 26,352 25,315
--------- ---------
Total assets $ 268,472 $ 224,552
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current maturities of long-term debt $ 14,655 $ 13,717
Accounts payable 5,636 7,207
Checks issued in excess of cash balances 1,183 426
Due to independent contractors 3,329 2,126
Accrued expenses 15,242 11,795
--------- ---------
Total current liabilities 40,045 35,271
Long term debt, less current maturities 104,149 79,531
Deferred income taxes 32,166 27,749
1,200,000 shares of common stock with non-detachable put 20,268 20,268
Stockholders' equity:
Common stock 70 67
Additional paid-in capital 28,163 24,093
Retained earnings 43,611 37,573
--------- ---------
Total stockholders' equity 71,844 61,733
--------- ---------
Total liabilities and stockholders' equity $ 268,472 $ 224,552
========= =========
</TABLE>
3
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Transport Corporation of America, Inc.
Consolidated Statements of Earnings
(In thousands, except share and per share amounts)
(unaudited)
<TABLE>
<CAPTION>
Three months ended Six months ended
June 30, June 30,
--------------------------- ---------------------------
1999 1998 1999 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Operating revenues $ 75,034 $ 53,075 $ 142,179 $ 102,563
Operating expenses:
Salaries, wages, and benefits 20,681 16,059 39,416 31,165
Fuel, maintenance, and other expenses 8,244 6,405 15,077 13,202
Purchased transportation 24,517 15,238 48,181 29,397
Revenue equipment leases 833 949 1,702 1,915
Depreciation and amortization 6,284 4,694 12,017 9,104
Insurance, claims and damage 1,956 1,390 3,873 2,915
Taxes and licenses 1,300 915 2,600 1,750
Communications 847 653 1,586 1,265
Other general and administrative expenses 2,156 2,139 4,486 4,072
Gain on sale of equipment (186) (47) (140) (59)
----------- ----------- ----------- -----------
Total operating expenses 66,632 48,395 128,798 94,726
----------- ----------- ----------- -----------
Operating income 8,402 4,680 13,381 7,837
Interest expense 1,917 1,075 3,498 2,190
Interest income (15) (25) (27) (116)
----------- ----------- ----------- -----------
Interest expense, net 1,902 1,050 3,471 2,074
----------- ----------- ----------- -----------
Earnings before income taxes 6,500 3,630 9,910 5,763
Provision for income taxes 2,541 1,416 3,872 2,249
----------- ----------- ----------- -----------
Net earnings $ 3,959 $ 2,214 $ 6,038 $ 3,514
=========== =========== =========== ===========
Net earnings per share:
Basic $ 0.49 $ 0.33 $ 0.75 $ 0.53
=========== =========== =========== ===========
Diluted $ 0.46 $ 0.33 $ 0.71 $ 0.52
=========== =========== =========== ===========
Average common shares outstanding:
Basic 8,114,121 6,712,526 8,005,530 6,691,223
Diluted 8,635,082 6,786,380 8,504,554 6,776,435
</TABLE>
4
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Transport Corporation of America, Inc.
Consolidated Statements of Cash Flows
(In thousands)
(unaudited)
<TABLE>
<CAPTION>
Six months ended
June 30,
---------------------
1999 1998
-------- --------
<S> <C> <C>
Operating activities:
Net earnings $ 6,038 $ 3,514
Adjustments to reconcile net earnings to net cash provided
by operating activities:
Depreciation and amortization 12,017 9,104
Gain on sale of equipment (140) (59)
Deferred income taxes 2,936 2,086
Changes in operating assets and liabilities,
net of acquisitions:
Trade receivable (2,940) (1,992)
Other receivable (428) 4,099
Operating supplies (85) 29
Prepaid expenses and tires (1,510) (1,268)
Accounts payable (2,689) 1,035
Due to independent contractors 1,165 800
Accrued expenses 1,519 2,575
-------- --------
Net cash provided by operating activities 15,883 19,923
-------- --------
Investing activities:
Purchases of revenue equipment (30,176) (20,464)
Purchases of property and other equipment (4,313) (1,409)
Payments for other assets (252) (15,800)
Acquisition of business, net of cash acquired (2,179) 0
Proceeds from sales of equipment 9,871 1,130
-------- --------
Net cash used in investing activities (27,049) (36,543)
-------- --------
Financing activities:
Proceeds from issuance of common stock,
and exercise of options and warrants 173 489
Proceeds from issuance of long-term debt 165 10,577
Principal payments on long-term debt (14,101) (9,236)
Proceeds from issuance of notes payable to bank 83,850 11,670
Principal payments on notes payable to bank (58,550) 0
Change in net checks issued in excess of cash balances 757 1,803
-------- --------
Net cash provided by financing activities 12,294 15,303
-------- --------
Net increase (decrease) in cash 1,128 (1,317)
Cash and cash equivalents, beginning of period 448 1,383
-------- --------
Cash and cash equivalents, end of period $ 1,576 $ 66
======== ========
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest $ 3,415 $ 2,183
Income taxes, net 617 71
</TABLE>
5
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TRANSPORT CORPORATION OF AMERICA, INC.
Notes to Consolidated Financial Statements
1. Interim Financial Statements (unaudited)
The unaudited interim consolidated financial statements
contained herein reflect all adjustments which, in the opinion
of management, are necessary for a fair presentation of the
interim periods. They have been prepared in accordance with
the instructions to Form 10-Q, Article 10 of Regulation S-X
and, accordingly, do not include all the information and
footnotes required by generally accepted accounting principles
for complete financial statements. These financial statements
should be read in conjunction with the audited financial
statements and footnotes included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1998. The
policies described in that report are used in preparing
interim reports. Certain balances from prior periods have been
reclassified to conform to current presentation.
The Company's business is seasonal. Operating results
for the six month period ended June 30, 1999 are not
necessarily indicative of the results that may be expected for
the year ending December 31, 1999.
2. Commitments
As of June 30, 1999, the Company had commitments to
purchase approximately $24.5 million of revenue equipment and
real estate, net of anticipated proceeds from the disposition
of used equipment.
In April of 1999, the Company entered into a five-year
operating lease for the construction of a new headquarters
facility in Eagan, Minnesota. Construction is expected to be
complete in the first quarter of 2000. The aggregate lease
payments are contingent on the final construction costs, which
are currently estimated to be $13 million.
6
<PAGE>
3. Acquisition
Effective May 1, 1999, the Company issued 350,000 shares
of its common stock as a portion of the purchase price to
acquire Robert Hansen Trucking, Inc. The purchase price
consists of $2.2 million in cash and shares of the Company's
common stock. The number of shares will be determined based
upon post acquisition adjustments to the purchase price. The
Company is holding in escrow 105,000 shares of the total
shares issued, pending this final determination. The common
stock was issued in reliance of exemptions from registration
under the Securities Act of 1933 pursuant to Registration D.
The acquisition will be accounted for as a purchase.
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Three Months Ended June 30, 1999 and 1998
Operating revenues increased 41.4% to $75.0 million for
the quarter ended June 30, 1999 from $53.1 million for the
quarter ended June 30, 1998. The increase resulted from
revenue growth from existing customers as well as additional
revenues attributable to the acquisition of Robert Hansen
Trucking, Inc ("RHT"), which became effective May 1, 1999, and
North Star Transport, Inc. ("North Star"), which became
effective July 1, 1998. Revenue per mile, excluding fuel
surcharges, increased to $1.28 in the second quarter of 1999,
compared to $1.25 for the same period of 1998. The improvement
in revenue per mile reflects an improvement in the Company's
freight mix. Equipment utilization, as measured by average
revenue per tractor per week, was $2,816 during the second
quarter of 1999, compared to $2,905 in the second quarter of
1998. The decline reflects decreased equipment utilization
resulting from the historically lower utilization of the
acquired North Star and RHT business.
7
<PAGE>
North Star utilized the services of independent
contractors for substantially its entire driver workforce. As
a result of the acquisition, independent contractors
represented a significantly higher share of the Company's
total driver workforce than in prior periods. At June 30,
1999, there were 845 independent contractors, compared to 424
at June 30, 1998. In addition to providing their own tractors,
independent contractors are responsible for operating expenses
including repairs, fuel and other direct costs associated with
their equipment. As a result of the greater proportion of
independent contractors than in the same quarter a year ago,
several expense categories declined as a percentage of revenue
in the second quarter of 1999, offsetting an increase in
purchased transportation expense as a percentage of revenues,
when compared to the same quarter of 1998. RHT utilized the
services of employee drivers for substantially all of its
driver workforce. The acquisition of RHT had only a slight
impact on the proportion of independent contractors versus
employee drivers.
Pre-tax margin (earnings before income taxes as a
percentage of operating revenues) was 8.7% in the second
quarter of 1999, compared to 6.8% in the same period of 1998.
Efficiency, as measured by average annualized revenues per
non-driver employee, improved 7.6% to $603,700 for the second
quarter of 1999, compared to $561,200 for the same period of
1998. Salaries, wages, and benefits as a percentage of
operating revenues decreased to 27.6% in the second quarter of
1999, compared to 30.3% for the same period of 1998. The
decrease is primarily a reflection the utilization of a higher
proportion of independent contractors in the second quarter of
1999, compared to the same period of 1998. Miles driven by
independent contractors in the second quarter of 1999
increased 82.7% over the same quarter in 1998 as a result of a
higher proportion of independent contractors in the second
quarter of 1999 compared to the same period in 1998.
Accordingly, purchased transportation increased as a
percentage of operating revenues to 32.7% in the second
quarter of 1999 from 28.7% for the same quarter of 1998. The
decline of fuel, maintenance, and other expenses as a
percentage of operating revenues to 11.0% in the second
quarter of 1999, when compared to 12.1% in the second quarter
of 1998, is also a reflection of the increased ratio of
independent contractors. Revenue equipment leases decreased as
a percentage of operating revenues to 1.1% in the second
quarter of 1999 from 1.8% for the same period of 1998,
primarily as a result of a decrease in the use of leases.
Depreciation and amortization for the second quarter of 1999
was 8.4% of operating revenues, compared to 8.9% for the same
period of 1998, primarily resulting from the larger portion of
revenue equipment supplied by independent contractors during
the second quarter of 1999. Other general and administrative
expenses as a percentage of operating revenues were 2.9% in
the second quarter of 1999, compared to 4.0% for the same
period of 1998. The decrease in the percentage of other
general and administrative expenses represents the Company's
ability to quickly integrate and leverage the cost synergies
of the North Star and RHT acquisitions, as well as reduced
driver hiring expense.
Net interest expense in the second quarter of 1999 was
2.5% of operating revenues, compared to 2.0% for the same
period of 1998, resulting from increased
8
<PAGE>
debt balances relating to the acquisition of North Star and
RHT. In addition, the Company increased its purchases of
revenue equipment to replace older, less efficient equipment
obtained in the acquisitions.
Gain on the disposition of equipment was $186,000 in the
second quarter of 1999, compared to a gain on $47,000 in the
same quarter of 1998. The effective tax rate for the second
quarters of 1999 and 1998 was 39.0%.
As a consequence of the items discussed above, net
earnings increased to $4.0 million, or 5.3% of operating
revenues for the quarter ended June 30, 1999 from $2.2
million, or 4.2% of operating revenues for the quarter ended
June 30, 1998.
Six Months Ended June 30, 1999 and 1998
Operating revenues increased 38.6% to $142.2 million for
the six months ended June 30, 1999 from $102.6 million for the
first six months of 1998. This increase resulted from revenue
growth from existing customers as well as additional revenues
attributable to the North Star and RHT acquisitions. Revenue
per mile was $1.28 in the first six months of 1999 compared to
$1.25 for the same period of 1998. The improvement in revenue
per mile reflects an improvement in the Company's freight mix.
Equipment utilization, as measured by average revenue per
tractor per week, declined to $2,742 during the first six
months of 1999 from $2,842 for the same period of 1998. The
decline reflects decreased equipment utilization resulting
from the historically lower utilization of the North Star and
RHT business.
9
<PAGE>
Pre-tax margin (earnings before income taxes as a
percentage of operating revenues) was 6.9% in the first six
months of 1999, compared to 5.6% for the same period of 1998.
Efficiency, as measured by average annualized revenues per
non-driver employee, increased 5.2% to $583,900 for the first
six months of 1999 from $554,700 for the same period of 1998.
Salaries, wages, and benefits, as a percentage of operating
revenues, declined to 27.7% in the first six months of 1999,
compared to 30.4% for the same period of 1998, resulting
primarily from an increase in the percentage of miles driven
by independent contractors in the first six months of 1999,
compared to the same period of 1998. Correspondingly,
purchased transportation increased as a percentage of
operating revenues to 33.9% in the first six months of 1999
from 28.7% for the same period of 1998. Fuel, maintenance, and
other expenses decreased as a percentage of operating revenues
to 10.6% in the first six months of 1999 from 12.9% for the
same period of 1998, reflecting higher fuel prices in 1999,
offset by an increased percentage of independent contractors
in the Company fleet. Revenue equipment leases decreased as a
percentage of operating revenues to 1.2% in the first six
months of 1999 from 1.9% for the same period of 1998,
primarily as a result of a decrease in the use of leases.
Depreciation and amortization decreased as a percentage of
operating revenues to 8.5% in the first six months of 1999,
compared to 8.9% for the same period of 1998, primarily
resulting from the larger portion of revenue equipment
supplied by independent contractors during the first six
months of 1999. Other general and administrative expenses as a
percentage of operating revenues were 3.2% in the first six
months of 1999, compared 4.0% for the same period of 1998,
reflecting the Company's ability to absorb the operations of
RHT and North Star without significantly increasing its
non-wage related indirect costs.
In the first six months of 1999, gain on the disposition
of equipment was $140,000, compared to a gain of $59,000 in
the first six months of 1998.
Net interest expense in the first six months of 1999 was
2.5% of operating revenues, compared to 2.0% for the same
period of 1998, primarily a reflection of the higher average
outstanding debt associated with the acquisition of North Star
in July 1998 and RHT in May 1999. In addition, the Company
increased its purchases of revenue equipment to replace older,
less efficient equipment obtained in the acquisition.
The effective tax rates for the first six months of 1999
and 1998 were 39.1% and 39.0%, respectively.
As a consequence of the items discussed above, net
earnings increased to $6.0 million, or 4.2% of operating
revenues, for the six months ended June 30, 1999 from $3.5
million, or 3.4% of operating revenues, for the six months
ended June 30, 1998.
10
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LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operating activities was $15.9
million in the first six months of 1999. Working capital as of
June 30, 1999 was $7.5 million, compared to $3.2 million as of
December 31, 1998. Accrued liabilities include normal
provisions for accident and workers' compensation claims
associated with the Company's self-insured retention insurance
program, less claim payments actually made. The Company
believes that its reserves and liquidity are adequate for
expected future claim payments.
Investing activities in the first six months of 1999
consumed net cash of $27.0 million, primarily for the purchase
of 169 new tractors, 673 new trailers, less proceeds from the
disposition of used equipment. This purchase activity is a
result of the Company's strategy to replace older, less
efficient equipment acquired in the acquisition. The Company
expects capital spending on revenue equipment to decrease in
the second half of the year. As of June 30, 1999, the Company
had commitments for the purchase of approximately $24.5
million of revenue equipment and real estate. The Company
expects to use cash provided by operating activities to
purchase the revenue equipment.
Net cash provided by financing activities was $12.3
million in the first six months of 1999, including $25.3
million representing net proceeds from the Company's credit
facility less reduction of other long term debt by $14.0
million.
In April of 1999, the Company entered into a five-year
operating lease for the construction of a new headquarters
facility in Eagan, Minnesota. Construction is expected to be
complete in the first quarter of 2000. The aggregate lease
payments are contingent on the final construction costs, which
are currently estimated to be $13 million.
The Company has a credit agreement with seven major
banks for an un-secured credit facility with maximum combined
borrowings and letters of credit of $100 million. Amounts
actually available under the credit facility are limited by
the Company's accounts receivable and unencumbered revenue
equipment. The credit facility, which expires in March 2001,
is used to meet working capital needs, purchase revenue
equipment and other assets, satisfy letter of credit
requirements associated with the Company's self-insured
retention arrangements, and for acquisitions. At June 30,
1999, there were outstanding borrowings of $78.3 million and
letters of credit outstanding totaling $3.6 million under this
credit facility. The Company expects to continue to fund its
liquidity needs and anticipated capital expenditures with cash
flows from operations and the credit facility.
11
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RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, The FASB issued Statement of Financial
Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities" ("Statement No. 133").
Statement No. 133 requires that an enterprise recognize all
derivatives as either assets or liabilities in the
consolidated balance sheet and measure those instruments at
fair value. Statement No. 133 is effective for all fiscal
quarters of all fiscal years beginning after June 15, 2000.
The Company is currently assessing the effect, if any, of
Statement No. 133 on its financial statements.
YEAR 2000
GENERAL STATE OF READINESS:
The Company has instituted a Steering Committee (the
"Committee") to assess the readiness and take remedial action
to correct the Company's systems to accommodate Year 2000
("Y2K") issues. The Committee, consisting of senior management
representing both technical and operating departments, is
charged with developing a project plan, detailed management
and remediation plans, as well as execution of these plans.
The Company is currently dependent upon systems that are
not Y2K compliant, including the Company's operations systems,
which is critical to coordinate driver movements with customer
needs and which interacts with other internal accounting and
operating systems as well as external customer information
systems. Development of a replacement operations system
commenced in 1997, and coding and testing of this system is
complete. The Company plans to fully implement the system in
the third quarter of 1999. The replacement system has been
designed to provide operational capabilities and enhancements
not present in the current systems, in addition to achieving
Y2K compliance.
Under the guidance of the Committee, an inventory and
assessment of all systems has been completed. The Company
plans that remediation for non-compliant systems will be
completed in the third quarter of 1999.
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The Company is dependent upon system-based relationships
with outside parties, including customers, banks, payroll
processors, suppliers, communication service providers, and
other business partners. The Company has outlined its core
business processes and identified customers and vendors who
are critical to these processes. The Company has implemented a
series of phone and printed surveys which have been sent to
these business partners to assess their Y2K readiness.
Responses to these surveys have been collected and assessments
made to determine the degree of impact on Company operations,
should any of these outside parties fail to achieve Y2K
compliance. Remediation actions and alternate procedures will
be developed to overcome any significant business partner
issues discovered as a result of the surveys.
COSTS TO ADDRESS THE COMPANY'S Y2K ISSUES
The Company believes that the costs of addressing
internal Y2K issues will not have a material adverse effect
upon its results of operations or financial condition. The
major initiative, consisting of replacing the operations
system, is primarily directed at improving operational
effectiveness, with the added benefit of replacing a non-Y2K
compliant system. The Company has estimated that internal
costs associated with Y2K compliance will be $450,000, of
which approximately $300,000 has been incurred and expensed to
date. The potential financial impact on the Company resulting
from the failure of any of the Company's business partners to
be Y2K compliant cannot be estimated until the Company has
received and evaluated responses to its surveys of its
business partners.
RISKS ASSOCIATED WITH THE COMPANY'S Y2K ISSUES
The Company's failure to implement Y2K compliant systems
could disrupt daily operations, impairing, for example, the
Company's ability to receive and record customer orders,
coordinate driver movements, and invoice customers, all of
which could have a material adverse effect upon the Company's
results of operations and liquidity, if prolonged. Although
the Company believes alternate manual processes exist that
could temporarily minimize the disruption caused by a Y2K
failure, such processes would not likely be effective for an
extended period of time.
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The Company is dependent upon third party resources
which are outside its direct control. Among the more critical
of these is the telecommunication system, upon which the
Company depends to receive customer orders and direct driver
movements. Daily activities are very dependent upon
voice-based phone systems and satellite-based communication
systems. Failure of the voice-based phone system would pose a
critical loss of capabilities, only partially offset by
satellite communication options.
Several critical relationships exist between the Company
and its customers, particularly those who electronically
initiate order transactions with the Company or interact
directly with the Company's systems. Failure of the Company's
customers to achieve Y2K compliance could jeopardize the
Company's ability to transact business electronically with
those customers. In the event of a customer's Y2K failure, the
success of manual interim processes will be largely out of the
Company's control.
CONTINGENCY PLANS
The Company has developed a comprehensive Y2K
Contingency Plan. The plan includes alternative manual and
electronic procedures.
FORWARD-LOOKING STATEMENTS
The Company has included various statements in this
Management's Discussion and Analysis and Results Of Operations
which may be considered as forward-looking statements of
expected future results of operations or events made pursuant
to the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. Such statements, based upon
management's interpretation of currently available
information, are subject to risks and uncertainties that could
cause future financial results or events to differ materially
from those which are presented. Such risks and factors include
general economic conditions, competition in the transportation
industry, governmental regulation, the Company's ability to
recruit, train and retain qualified drivers, the cost of
fuels, customer decisions to meet their transportation needs,
the ability of the Company to maintain a higher level of
service than its competitors, the integration of its
acquisition of RHT, adverse weather conditions, and other
factors outside the Company's control. The Company wishes to
caution readers not to place undue reliance on any such
forward-looking statements, which speak only as of the date
made.
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Item 3. Quantitative and Qualitative Disclosures about Market Risk
The Company is exposed to certain market risks with its
$100 million credit agreement, of which $78.3 million is
outstanding at June 30, 1999. The agreement bears interest at
a variable rate, which was 5.8% at June 30, 1999. In addition,
the Company also has 1.2 million shares of common stock with a
non-detachable Put option. The Put gives the shareholder the
right to sell some or all of the 1.2 million shares of the
Company's common stock back to the Company at $16.89 per
share, payable in cash, during a 60-day period commencing June
30, 2001.
15
<PAGE>
PART II OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds
Effective May 1, 1999, the Company issued 350,000 shares
of its common stock as a portion of the purchase price to
acquire Robert Hansen Trucking, Inc. The purchase price
consists of $2.2 million in cash and shares of the Company's
common stock. The number of shares will be determined based
upon post acquisition adjustments to the purchase price. The
Company is holding in escrow 105,000 shares of the total
shares issued, pending this final determination. The common
stock was issued in reliance of exemptions from registration
under the Securities Act of 1933 pursuant to Registration D.
The acquisition will be accounted for as a purchase.
Item 4. Submission of Matters to a Vote of Security Holders:
On May 20, 1999 the Company held its Annual Meeting of
Shareholders. At the meeting, the following persons were
elected to the Company's Board of Directors:
Votes For Votes Withheld
--------- --------------
James B. Aronson 6,728,952 58,373
Michael J. Paxton 6,727,532 59,793
Robert J. Meyers 6,728,332 58,993
Anton J. Christianson 6,728,932 58,393
Kenneth J. Roering 6,728,932 58,393
William D. Slattery 6,727,052 60,273
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Item 6. Exhibits and Reports on Form 8-K:
(a) Exhibits:
Exhibit
Number Description
10.1 Master Lease, dated as of April 9, 1999, between
ABN AMRO Leasing, Inc. and the Company
11.1 Statement re: Computation of Net Earnings per
Share
27 Financial Data Schedule
(b) Reports on Form 8-K:
No reports on Form 8-K were filed during the
quarter ended June 30, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TRANSPORT CORPORATION OF AMERICA, INC.
Date: August 13, 1999 /s/ Robert J. Meyers
--------------------------- --------------------------------------
Robert J. Meyers
President and Chief Operating Officer
/s/ Keith R. Klein
--------------------------------------
Keith R. Klein
Chief Financial Officer
17
Exhibit 10.1
Prepared by and upon recording return to: John R. Grier, Esq., Winston & Strawn,
35 West Wacker Drive, Chicago, Illinois 60601 (312) 558-7557
MASTER LEASE
(Including Mortgage)
dated as of April 9, 1999
between
ABN AMRO LEASING, INC.,
as the Lessor
and
TRANSPORT CORPORATION OF AMERICA, INC.
as the Lessee
Corporate Headquarters Facility
THIS LEASE IS SUPERIOR TO A MORTGAGE IN FAVOR OF ABN AMRO BANK N.V., AS AGENT
(THE "AGENT") UNDER THE PARTICIPATION AGREEMENT DATED AS OF APRIL 9, 1999,
BETWEEN THE LESSOR AND THE AGENT FOR THE BENEFIT OF THE PARTICIPANTS. THIS LEASE
HAS BEEN EXECUTED IN COUNTERPARTS. TO THE EXTENT, IF ANY, THAT THIS LEASE
CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO LIEN ON THIS LEASE MAY BE
CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE
ORIGINAL COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY THE AGENT ON
THE SIGNATURE PAGE HEREOF.
SUBJECT TO THE TERMS HEREOF, THIS DOCUMENT CONSTITUTES A "CONSTRUCTION MORTGAGE"
UNDER APPLICABLE LAW AND A "FIXTURE FILING" UNDER THE UNIFORM COMMERCIAL CODE.
NOTICE: THE MORTGAGE GRANTED HEREIN SECURES CREDIT IN THE MAXIMUM PRINCIPAL
AMOUNT OF $13,000,000. LOANS AND ADVANCES UP TO THIS AMOUNT, TOGETHER WITH
INTEREST, ARE SENIOR TO INDEBTEDNESS TO OTHER CREDITORS UNDER SUBSEQUENTLY
RECORDED AND FILED MORTGAGES OR LIENS.
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TABLE OF CONTENTS
MASTER LEASE...................................................................7
ARTICLE I......................................................................7
ARTICLE II.....................................................................7
ARTICLE III....................................................................9
ARTICLE IV....................................................................10
ARTICLE V.....................................................................10
ARTICLE VI....................................................................10
ARTICLE VII...................................................................12
ARTICLE VIII..................................................................15
ARTICLE IX....................................................................16
ARTICLE X.....................................................................16
ARTICLE XI....................................................................17
ARTICLE XII...................................................................17
ARTICLE XIII..................................................................19
ARTICLE XIV...................................................................19
ARTICLE XV....................................................................21
ARTICLE XVI...................................................................24
ARTICLE XVII..................................................................25
ARTICLE XVIII.................................................................31
ARTICLE XIX...................................................................31
ARTICLE XX....................................................................32
ARTICLE XXI...................................................................33
21.1. Renewal..........................................................33
ARTICLE XXII..................................................................34
ARTICLE XXIII.................................................................38
ARTICLE XXIV..................................................................38
ARTICLE XXV...................................................................39
ARTICLE XXVI..................................................................40
ARTICLE XXVII.................................................................40
ARTICLE XXVIII................................................................40
ARTICLE XXIX..................................................................41
ARTICLE XXX...................................................................41
ARTICLE XXXI..................................................................42
EQUIPMENT SCHEDULE NO.........................................................
EQUIPMENT.....................................................................
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APPENDICES
APPENDIX I Definitions and Interpretation
EXHIBITS
EXHIBIT A Form of Lease Supplement
EXHIBIT B Form of Equipment Schedule
EXHIBIT C Legal Description of Land
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MASTER LEASE
THIS MASTER LEASE (including Mortgage and all Lease
Supplements from time to time executed and delivered, this "Lease"), dated as of
April 9, 1999, between ABN AMRO LEASING, INC., an Illinois corporation, having
its principal office at 135 S. LaSalle Street, Chicago, Illinois 60603, as the
lessor (the "Lessor"), and TRANSPORT CORPORATION OF AMERICA, INC., a Minnesota
corporation, having a principal office at 1769 Yankee Doodle Road, Eagan,
Minnesota 55121-1618, as the lessee (the "Lessee").
W I T N E S S E T H:
A. WHEREAS, the Lessor will purchase the Land Interest from the
Existing Owner on the Land Interest Acquisition Date;
B. WHEREAS, with respect to such Property the Lessee, as Construction
Agent, will construct certain Improvements which as constructed will be the
property of the Lessor and will become part of such Property and subject to the
terms of this Lease; and
C. WHEREAS, on commencement of the Term, the Lessor desires to lease to
the Lessee, and the Lessee desires to lease from the Lessor, such Property
pursuant to this Lease.
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1. Definitions; Interpretation. Capitalized terms used but not
otherwise defined in this Lease have the respective meanings specified in
Appendix 1 to this Lease; and the rules of interpretation set forth in Appendix
1 to this Lease shall apply to this Lease.
ARTICLE II
2.1. Acceptance and Lease of Property. Effective as of the Closing
Date, the Lessor, subject to the satisfaction or waiver of the conditions set
forth in Section 6 of the Participation Agreement, hereby agrees to accept
delivery of the Land Interest to be delivered on the Land Interest Acquisition
Date pursuant to the terms of the Participation Agreement, and to lease to the
Lessee hereunder for the Term the Lessor's interest in such Land Interest and
the Lessor's interest in any Improvements existing thereon, in any Improvements
which thereafter may be constructed thereon and any Equipment, if any, which may
be purchased for use in connection therewith pursuant to the Construction Agency
Agreement, this Lease or the Participation Agreement, and the Lessee hereby
agrees, expressly for the direct benefit of the Lessor, to lease commencing on
such Lease Commencement Date from the Lessor for the Term, the Lessor's interest
in such Land Interest to be delivered on such Land Interest Acquisition Date,
any Improvements existing thereon, any Improvements which thereafter may be
constructed thereon
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and such Equipment pursuant to the Construction Agency Agreement, this Lease or
the Participation Agreement.
2.2. Acceptance Procedure. (a) The Lessor hereby authorizes one 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 Property identified on the Acquisition Request or an Equipment
Schedule.
(b) 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 of a Lease Supplement in the form of Exhibit A
hereto (appropriately completed) shall, without further act, constitute the
irrevocable acceptance by the Lessee of the Property which is the subject
thereof for all purposes of this Lease and the other Operative Documents on the
terms set forth therein and herein, and that the Property (including the
Improvements constructed thereon) (i) shall be deemed to be included in the
leasehold estate of this Lease as of the Lease Commencement Date and (ii) shall
be subject to the terms and conditions of this Lease on the Land Interest
Acquisition Date, but only, in the case of this clause (ii), to the extent set
forth in Section 2.7(f) of the Construction Agency Agreement.
(c) The Lessee hereby agrees that such acceptance of delivery by such
authorized representative or representatives and the execution and delivery by
the Lessee of an Equipment Schedule in the form of Exhibit B hereto
(appropriately completed) on or prior to the applicable Funding Date with
respect to the acquisition of Equipment shall, without further act, constitute
the irrevocable acceptance of the Equipment which is the subject thereof for all
purposes of this Lease and the other Operative Documents on the terms set forth
therein and herein, and that the Equipment (i) shall be deemed to be included in
the leasehold estate of this Lease as of the Lease Commencement Date and (ii)
shall be subject to the terms and conditions of this Lease as of such Funding
Date, but only, in the case of this clause (ii), to the extent set forth in
Section 2.7(f) of the Construction Agency Agreement.
2.3. Lease Term. The term of this Lease (the "Term") shall begin on the
Lease Commencement Date and shall end on the fifth anniversary of the Closing
Date, unless the Term is renewed or earlier terminated in accordance with the
provisions of this Lease. Prior to the Lease Commencement Date, the Property
shall be subject to the provisions of this Lease as it is acquired, constructed
or equipped, as the case may be, but only to the extent set forth in Section
2.7(f) of the Construction Agency Agreement.
2.4. Title. The Property is leased to the Lessee without any
representation or warranty of title, condition of the Improvements or permitted
uses, express or implied, by the Lessor and subject to the rights of parties in
possession, the existing state of title (including, without limitation, the
Permitted Exceptions and all applicable Requirements of Law. The Lessee shall in
no event have any recourse against the Lessor for any defect in or exception to
title to the Property, other than for any such defect or exception constituting
a Lessor Lien.
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ARTICLE III
3.1. Rent. (a) During the Term, the Lessee shall pay Basic Rent on each
Payment Date, on the date required under Section 22.1(i) in connection with the
Lessee's exercise of the Remarketing Option and on any date on which this Lease
shall terminate.
(b) Basic Rent shall be due and payable in lawful money of the United
States and shall be paid by wire transfer of immediately available funds on the
due date therefor to such account or accounts at such bank or banks or to the
Agent or in such other manner as the Agent shall from time to time direct.
(c) Neither the Lessee's inability or failure to take possession of all
or any portion of the Property when delivered by the Lessor, nor the Lessor's
inability or failure to deliver all or any portion of the Property to the Lessee
on or before the Lease Commencement Date, whether or not attributable to any act
or omission of the Lessee or any act or omission of the Lessor, or for any other
reason whatsoever, shall delay or otherwise affect the Lessee's obligation to
pay Rent for the Property from and after commencement of the Term.
3.2. Payment of Basic Rent. Basic Rent shall be paid absolutely net to
the Lessor, so that this Lease shall yield to the Lessor the full amount
thereof, without setoff, deduction or reduction, whether or not the Lessee's
quiet possession of the Property is disturbed.
3.3. Supplemental Rent. The Lessee shall pay to the Lessor or the
Person entitled thereto any and all Supplemental Rent promptly as the same shall
become due and payable, and if the Lessee fails to pay any Supplemental Rent,
the Lessor shall have all rights, powers and remedies provided for herein or by
law or equity or otherwise in the case of nonpayment of Basic Rent. The Lessee
shall pay to the Lessor, as Supplemental Rent, among other things, on demand, to
the extent permitted by Applicable Law, interest at the applicable Overdue Rate
on any installment of Basic Rent not paid within five (5) days after due for the
period for which the same shall be overdue and on any payment of Supplemental
Rent not paid when due or demanded by the Lessor for the period from five (5)
days after the due date or the date of any such demand, as the case may be,
until the same shall be paid. The expiration or other termination of the
Lessee's obligations to pay Basic Rent hereunder shall not limit or modify the
obligations of the Lessee with respect to Supplemental Rent. Unless expressly
provided otherwise in this Lease, in the event of any failure on the part of the
Lessee to pay and discharge any Supplemental Rent as and when due, the Lessee
shall also promptly pay and discharge any fine, penalty, interest or cost which
may be assessed or added under any agreement with a third party for nonpayment
or late payment of such Supplemental Rent, all of which shall also constitute
Supplemental Rent.
3.4. Method of Payment. Each payment of Rent shall be made by the
Lessee to the Agent by 12:00 noon, Chicago time at the place of payment
designated by Agent 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
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Business Day or as otherwise required by the definition of the term "Interest
Period" set forth in Appendix 1 hereto. Payments initiated after 12:00 noon,
Chicago time shall be deemed received on the next succeeding Business Day.
ARTICLE IV
4.1. Utility Charges. The Lessee shall pay or cause to be paid all
charges for electricity, power, gas, oil, water, telephone, sanitary sewer
service and all other rents and utilities used in or on the Property during the
Term. The Lessee shall be entitled to receive any credit or refund with respect
to any utility charge paid by the Lessee and the amount of any credit or refund
received by the Lessor on account of any utility charges paid by the Lessee, net
of the costs and expenses reasonably incurred by the Lessor in obtaining such
credit or refund, shall be promptly paid over to the Lessee. All charges for
utilities imposed with respect to the Property for a billing period during which
this Lease expires or terminates shall be adjusted and prorated on a daily basis
between the Lessor and the Lessee, and each party shall pay or reimburse the
other for each party's pro rata share thereof, except that if the Lessee retains
possession of the Property after termination or expiration of this Lease, no
such adjustment and proration shall be made.
ARTICLE V
5.1. Quiet Enjoyment. Subject to the rights of the Lessor contained in
Section 17.2 and the other terms of this Lease and so long as no Event of
Default shall have occurred and be continuing, the Lessee shall peaceably and
quietly have, hold and enjoy the property for the Term, free of any claim or
other action by the Lessor or anyone rightfully claiming by, through or under
the Lessor (other than the Lessee) with respect to any matters arising from and
after the Closing Date.
ARTICLE VI
6.1. Net Lease. This Lease shall constitute a net lease. It is the
further express intent of Lessor and Lessee that the obligations of Lessor and
Lessee hereunder shall be separate and independent covenants and agreements and
that the Basic Rent and Supplemental Rent, and all other charges and sums
payable by Lessee hereunder, shall commence at the times provided herein and
shall continue to be payable in all events unless the obligations to pay the
same shall be terminated pursuant to an express provision in this Lease. Any
present or future law to the contrary notwithstanding, this Lease shall not
terminate, nor shall the Lessee be entitled to any abatement, suspension,
deferment, reduction, setoff, counterclaim, or defense with respect to the Rent,
nor shall the obligations of the Lessee hereunder be affected (except as
expressly herein permitted and by performance of the obligations in connection
therewith) by reason of: (i) any defect in the condition, merchantability,
design, construction, quality or fitness for use of the Property or any part
thereof, or the failure of the Property to comply with all Requirements of Law
and Insurance Requirements, including any inability to occupy or use the
Property by reason of such non-compliance; (ii) any damage to, removal,
abandonment, salvage, loss, contamination of or Release from, scrapping or
destruction of or any requisition or taking of the
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Property or any part thereof; (iii) any restriction, prevention or curtailment
of or interference with any use of the Property or any part thereof including
eviction; (iv) any defect in title to or rights to the Property or any Lien on
such title or rights or on the Property (other than Lessor Liens); (v) 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
Participant; (vi) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceedings relating to the
Lessee, the Lessor, the Agent, any Participant or any other Person, or any
action taken with respect to this Lease by any trustee or receiver of the
Lessee, the Lessor, the Agent, any Participant or any other Person, or by any
court, in any such proceeding; (vii) any claim that the Lessee has or might have
against any Person, including without limitation the Lessor, any vendor,
manufacturer, contractor of or for the Property, the Agent or any Participant;
(viii) 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 any other agreement
other than a breach by the Lessor of its covenant of quiet enjoyment; (ix) 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; (x) the impossibility or illegality
of performance by the Lessee, the Lessor or both; (xi) any action by any court,
administrative agency or other Governmental Authority; (xii) any restriction,
prevention or curtailment of or interference with the construction on or any use
of the Property or any part thereof; or (xiii) any other cause or circumstances
whether similar or dissimilar to the foregoing and whether or not the Lessee
shall have notice or knowledge of any of the foregoing. The parties intend that
the obligations of the Lessee hereunder shall be covenants and agreements that
are separate and independent from any obligations of the Lessor hereunder or
under any other Operative Document and the obligations of the Lessee shall
continue unaffected unless such obligations shall have been modified or
terminated in accordance with an express provision of this Lease.
6.2. No Termination or Abatement. The Lessee shall remain obligated
under this Lease in accordance with its terms and shall not take any action to
terminate, rescind or avoid this Lease, notwithstanding any action for
bankruptcy, insolvency, reorganization, liquidation, dissolution, or other
proceeding affecting the Lessor, the Agent, any Participant or the Lessee or any
action with respect to this Lease or any Operative Document which may be taken
by any trustee, receiver or liquidator of the Lessor, the Agent, any Participant
or the Lessee or by any court with respect to the Lessor, the Agent or any
Participant. The Lessee hereby waives all right (i) to terminate or surrender
this Lease (except as provided herein) or (ii) to avail itself of any abatement,
suspension, deferment, reduction, setoff, counterclaim or defense (other than
the defense of payment) with respect to any Rent. The Lessee shall remain
obligated under this Lease in accordance with its terms and the Lessee hereby
waives any and all rights now or hereafter conferred by statute or otherwise to
modify or to avoid strict compliance with its obligations under this Lease.
Notwithstanding any such statute or otherwise, the Lessee shall be bound by all
of the terms and conditions contained in this Lease.
ARTICLE VII
7.1. Nature of Transaction; Intent of the Parties. (a) It is the intent
of the parties hereto that: (i) this Lease constitutes an "operating lease"
pursuant to Statement of Financial
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Accounting Standards No. 13, as amended and interpreted, for purposes of
Lessee's financial reporting, and (ii) for purposes of federal, state, and local
income or franchise taxes and for any other tax imposed on or measured by
income, the transaction contemplated hereby is a financing arrangement and
preserves ownership in the Property in the Lessee. The parties shall take no
action inconsistent with such intention. Nevertheless, the Lessee acknowledges
and agrees that neither the Agent, the Lessor nor any Participant has made any
representations or warranties to the Lessee concerning the tax, accounting or
legal characteristics of the Operative Documents and that the Lessee has
obtained and relied upon such tax, accounting and legal advice concerning the
Operative Documents as it deems appropriate.
(b) Anything to the contrary in the Operative Documents
notwithstanding, the Lessor and the Lessee intend and agree that with respect to
the nature of the transactions evidenced by this Lease in the context of the
exercise of remedies under the Operative Documents, in the case of any
insolvency or receivership proceedings or a petition under the United States
bankruptcy laws or any other applicable insolvency laws or statute of the United
States of America or any State or Commonwealth thereof or any foreign country
affecting the Lessee, the Lessor, or any Participant or any enforcement or
collection actions arising out of or relating to bankruptcy or insolvency laws,
(i) the transactions evidenced by this Lease are loans made by the Lessor and
the Participants as unrelated third party lenders to the Lessee secured by the
Property, (ii) the obligations of the Lessee under this Lease to pay Basic Rent,
Supplemental Rent, Asset Termination Value or Residual Value Guarantee Amount in
connection with a purchase of the Property pursuant to this Lease shall be
treated as payments of interest on and principal of, respectively, loans from
the Lessor and the Participants to the Lessee, and (iii) this Lease grants a
security interest and mortgage or deed of trust or lien, as the case may be, in
the Property to the Lessor and assigned by the Lessor to the Agent for the
benefit of the Participants to secure the Lessee's performance under and payment
of all amounts under this Lease and the other Operative Documents.
(c) Specifically, without limiting the generality of subsection (b) of
this Section 7.1, the Lessor and the Lessee further intend and agree that, for
the purpose of securing the Lessee's obligations for the repayment of the
above-described loans from the Lessor and the Participants to the Lessee (the
aggregate commitment from the Participants as of the date hereof is Thirteen
Million Dollars ($13,000,000) and the maturity date of such loans as of the date
hereof is __________, 2004), (i) this Lease shall also be deemed to be a
security agreement and financing statement within the meaning of Article 9 of
the Uniform Commercial Code (and specifically, a construction mortgage, as said
term is defined in Section 9-313(1)(c) of the Uniform Commercial Code) and a
real property mortgage of the Property; (ii) the conveyance provided for in
Article II shall be deemed to be a grant by the Lessee to the Lessor and
assigned by the Lessor to the Agent for the benefit of the Participants of a
mortgage lien and security interest in all of the Lessee's right, title and
interest in and to the Property and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, investments, securities or other
property, whether in the form of cash, investments, securities or other property
(it being understood that the Lessee hereby mortgages and warrants and grants a
security interest in the Property to Lessor to secure such loans); (iii) the
possession by the Lessor or any of its agents of notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be
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deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the Uniform Commercial Code; and
(iv) notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from financial intermediaries, bankers or agents (as
applicable) of the Lessee shall be deemed to have been given for the purpose of
perfecting such security interest under Applicable Law; provided that the
foregoing provisions of this subsection 7.1(c) shall not be deemed or construed
so as to constitute the transactions evidenced under this Lease as loans other
than for the purposes described in subsection 7.1(a)(ii) and/or under the
circumstances described in subsection 7.1(b). The Lessor and the Lessee shall,
to the extent consistent with this Lease, take such actions and execute,
deliver, file and record such other documents, financing statements, mortgages
and deeds of trust as may be necessary to ensure that, if this Lease were deemed
to create a security interest in the Property in accordance with this Section,
such security interest would be deemed to be a perfected security interest of
first priority under Applicable Law and will be maintained as such throughout
the Term.
(d) Specifically, without limiting the generality of subsection (b) of
this Section 7.1, the Lessee hereby grants, remises, releases, aliens, conveys,
transfers, mortgages, assigns and warrants to the Lessor all of the Lessee's
right, title and interest in and to the following (collectively, the "Mortgaged
Property"):
(i) all right, title and interest of the Lessee in and to the
Property or any part thereof and the reversions, remainders, rents,
issues and profits thereof;
(ii) all right, title and interest of the Lessee in and to all
substitutes and replacements of, and all additions and improvements to,
the Improvements and the Fixtures, subsequently acquired by the Lessee
or constructed, assembled or placed by the Lessee on the Land Interest,
immediately upon such acquisition, release, construction, assembling or
placement, including, without limitation, any and all building
materials whether stored at the Property or offsite, and, in each such
case, without any further mortgage, conveyance, assignment or other act
by the Lessee;
(iii) all right, title and interest of the Lessee in, to and
under all books and records relating to or used in connection with the
operation of the Property or the Fixtures or any part thereof and the
Equipment;
(iv) all right, title and interest of the Lessee in and to all
insurance policies (including title insurance policies) required to be
maintained by the Lessee pursuant to this Lease, including the right to
collect and receive such proceeds; and all awards and other
compensation, including the interest payable thereon and the right to
collect and receive the same, made to the present or any subsequent
owner of the Property for the taking by eminent domain, condemnation or
otherwise, of all or any part of the Property or any easement or other
right therein;
(v) all right, title and interest of the Lessee in and to (i)
all consents, licenses, building permits, certificates of occupancy and
other governmental approvals relating to
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construction, completion, occupancy, use or operation of the Property
or any part thereof and (ii) all plans and specifications relating to
the Property;
(vi) all Rent and all other rents, payments, purchase prices,
receipts, revenues, issues and profits payable under this Lease or
pursuant to any other lease with respect to the Property;
(vii) all proceeds, both cash and noncash, of the foregoing
and any items acquired in substitution of, or replacement for, any of
the foregoing; and
(viii) all right, title and interest of the Lessee in and to
all of the Operative Documents, including, without limitation, the
Lease Supplement and the Equipment Schedules, regardless of whether the
interest of the Lessee therein is that of lessee, sublessee, sublessor
or borrower.
(e) If the transactions evidenced by this Agreement and the other
Operative Documents can no longer be treated as an operating lease pursuant to
GAAP for accounting purposes, all provisions in the Operative Documents limiting
the Lessee's obligation to pay the Lease Balance or Asset Termination Value
(including the Remarketing Option) on the Expiration Date shall no longer apply.
If any such change in accounting treatment shall occur, the Lessee shall enter
into such amendments to the Operative Documents as the Lessor or the Required
Participants may reasonably request to reflect the foregoing.
7.2. UCC Information. For the purposes of the security agreement and
financing statement provided herein the following information applies:
(i) Name and Address of Transport Corporation of America,
Inc.
Debtor: 1769 Yankee Doodle Road
Eagan, Minnesota 55121
Taxpayer I.D. #: _____________
(ii) Name and Address ABN AMRO Leasing, Inc.
of Secured Party: 135 South LaSalle Street
Chicago, Illinois 60603
(iii) Description of the Those items described as
types (or items) Improvements, Fixtures and
by property covered Equipment and other personal
by this Financing property in paragraph 7.1(d)
Statement: hereof
(iv) Description of real See Exhibit C hereto
estate to which
collateral is
attached or upon
which it is located:
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ARTICLE VIII
8.1. Condition of the Property. THE LESSEE ACKNOWLEDGES AND AGREES THAT
ALTHOUGH THE LESSOR WILL HOLD FEE TITLE TO THE PROPERTY, THE LESSEE IS SOLELY
RESPONSIBLE FOR THE IMPROVEMENTS AND ANY ALTERATIONS OR MODIFICATIONS. THE
LESSEE FURTHER ACKNOWLEDGES AND AGREES THAT IT IS LEASING THE PROPERTY "AS IS"
WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY THE LESSOR,
THE AGENT OR ANY PARTICIPANT AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE
OF TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF, (C) ANY STATE OF
FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW, AND (D)
VIOLATIONS OF REQUIREMENTS OF LAW WHICH MAY EXIST ON THE DATE HEREOF. NEITHER
THE LESSOR, THE AGENT NOR ANY PARTICIPANT HAS MADE OR SHALL BE DEEMED TO HAVE
MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) OR SHALL BE
DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE, VALUE, HABITABILITY,
USE, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE PROPERTY (OR ANY
PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PART THEREOF) AND
NEITHER THE LESSOR, THE AGENT NOR ANY PARTICIPANT SHALL BE LIABLE FOR ANY
LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE PROPERTY, OR ANY
PART THEREOF, TO COMPLY WITH ANY REQUIREMENT OF LAW.
8.2. Possession and Use of the Property. The Property shall be used as
an office building and corporate headquarters and in compliance with any
covenants, conditions and restrictions of record and any ordinance or law
affecting the use and occupancy of the Property; and provided that such uses do
not increase the liability, directly or indirectly, of the Lessor or adversely
affect the value, utility or remaining useful life of the Property. At all times
during the Term following completion of the Improvements, the Property shall be
continuously used by the Lessee or a permitted assignee or sublessee in the
ordinary course of its business. The Lessee shall pay, or cause to be paid, all
charges and costs required in connection with the use of the Property as
contemplated by this Lease and the Construction Agency Agreement. The Lessee
shall not commit or permit any waste of the Property or any part thereof.
ARTICLE IX
9.1. Compliance with Requirements of Law and Insurance Requirements.
Subject to the terms of Article XIII relating to permitted contests, the Lessee,
at its sole cost and expense, shall (a) comply with all Requirements of Law
(including all Environmental Laws) and comply with all Insurance Requirements
relating to the Property, including the construction, use, operation,
maintenance, repair and restoration thereof and the remarketing thereof pursuant
to Article XXII, whether or not compliance therewith shall require structural or
extraordinary changes in the Improvements or interfere with the use and
enjoyment of the Property, and (b) procure, maintain and comply with all
licenses, permits, orders, approvals, consents and other
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authorizations required for the construction, use, maintenance and operation of
the Property and for the use, operation, maintenance, repair and restoration of
the Improvements.
ARTICLE X
10.1. Maintenance and Repair; Return. (a) The Lessee, at its sole cost
and expense, shall maintain the Property in good working order, mechanical
condition and repair and make all necessary repairs thereto, of every kind and
nature whatsoever, whether interior or exterior, ordinary or extraordinary,
structural or nonstructural or foreseen or unforeseen, in each case as required
by all Requirements of Law and Insurance Requirements and on a basis consistent
with the operation and maintenance of commercial properties comparable in type
and location to the Property and in compliance with prudent industry practice.
(b) The Lessor shall under no circumstances be required to build any
improvements on the Property, make any repairs, replacements, alterations or
renewals of any nature or description to the Property, make any expenditure
whatsoever in connection with this Lease or maintain the Property in any way.
The Lessor shall not be required to maintain, repair or rebuild all or any part
of the Property, and the Lessee waives any right to (i) require the Lessor to
maintain, repair, or rebuild all or any part of the Property, or (ii) make
repairs at the expense of the Lessor pursuant to any Requirement of Law,
Insurance Requirement, contract, agreement, or covenant, condition or
restriction in effect at any time during the Term.
(c) The Lessee shall, upon the expiration or earlier termination of
this Lease, vacate and surrender the Property to the Lessor in its then-current,
"AS IS" condition, subject to the Lessee's obligations under Sections 9.1,
10.1(a), 11.1, 12.1, 15.1(e), 15.2, 17.2(h), 22.1 and 23.1.
(d) The Lessee warrants that it shall cause the Improvements currently
under construction or currently planned to be constructed on the Property to be
designed and constructed in a workmanlike manner and in accordance with all
Requirements of Law and Insurance Requirements, prior to the Outside Completion
Date so that, prior to such date, such Improvements will be fit for their
intended purpose.
ARTICLE XI
11.1. Modifications, Substitutions and Replacements. (a) After
Completion of the Improvements, the Lessee, at its sole cost and expense, may at
any time and from time to time make alterations, renovations, improvements and
additions to the Property or any part thereof and substitutions and replacements
therefor (collectively, "Modifications"); provided that: (i) no Modification
shall materially impair the value, utility or useful life of the Property or any
part thereof from that which existed immediately prior to such Modification;
(ii) the Modification shall be done expeditiously and in a good and workmanlike
manner; (iii) the Lessee shall comply with all Requirements of Law (including
all Environmental Laws) and comply with all Insurance Requirements applicable to
the Modification, including the obtaining of all permits and certificates of
occupancy, and the structural integrity of the Property shall not be adversely
affected; (iv) subject to the terms of Article XIII relating to permitted
contests, the Lessee shall
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pay all costs and expenses and shall discharge (or cause to be insured or bonded
over in accordance with Minnesota statutes) within sixty (60) days after the
same shall be filed (or otherwise become effective) any Liens arising with
respect to the Modification; and (v) such Modifications shall comply with
Sections 8.2 and 10.1. All Modifications (other than those that both are not
Modifications required to be made pursuant to a Requirement of Law or an
Insurance Requirement ("Required Modification") and are readily removable
without impairing the value, utility or remaining useful life of the Property)
shall remain part of the realty and shall be subject to this Lease, and title
thereto shall immediately vest in the Lessor. So long as no Lease Event of
Default has occurred and is continuing, the Lessee may place upon the Property
any trade fixtures, machinery, equipment or other property belonging to the
Lessee or third parties and may remove the same at any time during the Term,
subject, however, to the terms of Section 10.1(a); provided that such trade
fixtures, machinery, equipment or other property do not materially impair the
value, utility or remaining useful life of the Property; provided, further, that
the Lessee shall keep and maintain at the Property and shall not remove from the
Property any Equipment financed or otherwise paid for (directly or indirectly)
by the Lessor or any Participant pursuant to the Participation Agreement.
(b) The Lessee shall deliver to the Lessor and the Agent a brief
written narrative of the work to be done in connection with any Modification to
the Property the cost of which is anticipated to exceed $500,000 in the
aggregate.
ARTICLE XII
12.1. Warranty of Title. (a) The Lessee agrees that except as otherwise
provided herein and subject to the terms of Article XIII relating to permitted
contests, the Lessee shall not directly or indirectly create or allow to remain,
and shall promptly (or within sixty (60) days in the case of mechanics' liens)
discharge at its sole cost and expense, any Lien, defect, attachment, levy,
title retention agreement or claim upon the Property (or the Lessor's interest
therein) or any Modifications or any Lien, attachment, levy or claim with
respect to the Rent or with respect to any amounts held by the Agent pursuant to
the Participation Agreement or the other Operative Documents, other than
Permitted Exceptions and Lessor Liens.
(b) Nothing contained in this Lease shall be construed as constituting
the consent or request of the Lessor, expressed or implied, to or for the
performance by any contractor, mechanic, laborer, materialman, supplier or
vendor of any labor or services or for the furnishing of any materials for any
construction, alteration, addition, repair or demolition of or to the Property
or any part thereof. NOTICE IS HEREBY GIVEN THAT NEITHER THE LESSOR, ANY
PARTICIPANT NOR THE AGENT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE OR TO ANYONE HOLDING THE
PROPERTY OR ANY PART THEREOF THROUGH OR UNDER THE LESSEE AND THAT NO MECHANIC'S
OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR
AFFECT THE INTEREST OF THE LESSOR IN AND TO THE PROPERTY.
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12.2. Grants and Releases of Easements. Provided that no Lease Event of
Default shall have occurred and be continuing and subject to the provisions of
Articles VIII, IX, X and XI, the Lessor hereby consents in each instance to the
following actions by the Lessee, on behalf of the Lessor: (a) the granting of
easements, licenses, rights-of-way and other rights and privileges in the nature
of easements reasonably necessary or desirable for the completion of
construction of the Improvements, use, repair, operation or maintenance of the
Property as herein provided; (b) the release of existing easements or other
rights in the nature of easements which are for the benefit of the Property; (c)
the execution of petitions to have the Property annexed to any municipal
corporation or utility district; and (d) the execution of amendments to any
covenants and restrictions affecting the Property; provided, however, in each
case the Lessee shall have delivered to the Lessor an Officer's Certificate
stating that (i) such grant, release, dedication or transfer does not materially
impair the value, utility and remaining useful life of the Property, (ii) such
grant, release, dedication or transfer is reasonably necessary in connection
with the completion of construction of the Improvements, use, operation
maintenance, alteration or improvement of the Property, (iii) the Lessee shall
remain obligated under this Lease and under any instrument executed by the
Lessee consenting to the assignment of the Lessor's interest in this Lease as
security for indebtedness, in each such case in accordance with their terms, as
though such grant, release, dedication or transfer, had not been effected, and
(iv) the Lessee shall pay and perform any obligations of the Lessor under such
grant, release, dedication or transfer. Without limiting the effectiveness of
the foregoing, provided that no Lease Event of Default shall have occurred and
be continuing, the Lessor shall, upon the request of the Lessee, execute and
deliver any instruments necessary or appropriate to confirm any such grant,
release, dedication or transfer to any Person permitted under this Section 12.2
within twenty (20) Business Days after written request therefor by the Lessee.
The costs and expenses of any action taken or any instrument executed and
delivered under this Section 12.2 (x) shall be paid by the Lessor (and funded by
an Advance funded by the Participants and capitalized as provided in Section
3.7(e)(i) of the Participation Agreement), if arising prior to the Completion
Date, and (y) if arising from and after the Completion Date, shall be at the
sole cost and expense of the Lessee.
ARTICLE XIII
13.1. Permitted Contests Other Than in Respect of Indemnities. Except
to the extent otherwise provided for in Section 13 of the Participation
Agreement, the Lessee, on its own or on the Lessor's behalf but at the Lessee's
sole cost and expense, may contest, by appropriate administrative or judicial
proceedings conducted in good faith and with due diligence, the amount, validity
or application, in whole or in part, of any Requirement of Law, or utility
charges payable pursuant to Section 4.1 (including, without limitation any tax
assessment, valuation or levy) or any Lien, attachment, levy, encumbrance or
encroachment, and the Lessor agrees not to pay, settle or otherwise compromise
any such item, provided that (a) the commencement and continuation of such
proceedings shall (except with respect to tax contests) suspend the collection
thereof from, and suspend the enforcement thereof against, the Property, the
Lessor, the Agent and the Participants or the Lessee shall have bonded or
otherwise secured such amount in a manner satisfactory to the Lessor and the
Agent; (b) there shall be no risk of the imposition of a Lien (other than
Permitted Exceptions) on the Property and no part of the Property nor any Rent
would be in any danger of being sold, forfeited, lost or deferred; (c) at no
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time during the permitted contest shall there be a risk of the imposition of
criminal liability or material civil liability on the Lessor, the Agent or any
Participant for failure to comply therewith (unless, in the case of civil
liability, the Lessee shall have bonded or otherwise secured such amount in a
manner satisfactory to the Lessor and the Agent); and (d) in the event that, at
any time, there shall be a material risk of extending the application of such
item beyond the end of the Term, then the Lessee shall deliver to the Lessor an
Officer's Certificate certifying as to the matters set forth in clauses (a), (b)
and (c) of this Section 13.1. The Lessor, at the Lessee's sole cost and expense,
shall execute and deliver to the Lessee such authorizations and other documents
as may reasonably be required in connection with any such contest and, if
reasonably requested by the Lessee, shall join as a party therein at the
Lessee's sole cost and expense.
ARTICLE XIV
14.1. Public Liability and Workers' Compensation Insurance. The Lessee
shall procure and carry commercial general liability insurance, including
contractual liability, for claims for injuries or death sustained by persons or
damage to property while on the Property and such other public liability
coverages as are ordinarily procured by Persons who own or operate similar
properties and consistent with prudent business practice, which policies shall
include contractual liability endorsements covering the Lessee's indemnification
obligations in Section 13.1 of the Participation Agreement. Such insurance shall
be on terms and in amounts (which shall be acceptable to the Lessor and in the
event of liability insurance shall be maintained at a level set forth on
Schedule 14.2) that are no less favorable than insurance maintained by the
Lessee with respect to similar properties that it owns and that are in
accordance with prudent business practice and may be provided under blanket
policies maintained by or on behalf of the Lessee. The policy shall be endorsed
to name the Lessor, the Agent and each Participant as additional insureds. The
policy shall also specifically provide that the policy shall be considered
primary insurance which shall apply to any loss or claim before any contribution
by any insurance which the Lessor, the Agent or the Participants may have in
force. The Lessee shall, in the construction of the Improvements and the
operation of the Property (including in connection with any Modifications
thereof) comply with the applicable workers' compensation laws and protect the
Lessor, the Agent and the Participants against any liability under such laws.
14.2. Hazard and Other Insurance. The Lessee shall keep, or cause to be
kept, the Property insured against loss or damage by fire, flood and other risks
in an amount not less than the greater of the amount set forth on Schedule 14.2
and the then current replacement costs of the buildings and improvements on the
Property and on terms that are no less favorable than insurance covering other
similar properties owned or leased by the Lessee or any of its Affiliates and
that are in accordance with prudent business practice. The Lessee may provide
such coverage under blanket policies maintained by the Lessee; provided that if
the Lessee does not elect to terminate the Lease pursuant to Article XVI hereof
following the occurrence of an event covered by any such blanket policy, the
proceeds of any such blanket policy shall be applied first, to the exclusion of
other facilities covered by such policy other than the Property, to the repair,
rebuilding and restoration of any damage to the Property. During the
construction of any Improvements the Lessee shall also maintain builders' risk
insurance. Each policy of insurance maintained by the Lessee pursuant to this
Section 14.2 shall provide that all insurance proceeds
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in respect of any loss or occurrence shall be paid to and adjusted solely by the
Agent (at the expense of the Lessee) during the Construction Period and
thereafter, by (and such proceeds shall be paid to) the Lessee, except from and
after the date on which the insurer receives written notice from the Lessor or
the Agent that a Lease Event of Default exists (and unless and until such
insurer receives written notice from the Lessor or the Agent that all Lease
Events of Default have been cured), all losses shall be adjusted solely by, and
all insurance proceeds shall be paid solely to, the Agent (or the Lessor if the
Participation Interests have been fully paid) for application pursuant to
Article XV. The costs and expenses of all insurance required under this Section
14.2 (x) shall be paid by the Lessor (and funded by an Advance funded by the
Participants and capitalized as provided in Section 3.7(e)(i) of the
Participation Agreement), if arising prior to the Completion Date, and (y) from
and after the Completion Date, shall be at the sole cost and expense of the
Lessee.
14.3. Coverage. (a) The Lessee shall furnish the Lessor and the Agent
with certified copies of the insurance policies showing the insurance required
under Sections 14.1 and 14.2 to be in effect and naming the Lessor, the Agent
and each Participant as additional insureds and, with respect to the insurance
required under Section 14.2, naming the Agent, for the benefit of the
Participants, as loss payees, and showing the mortgagee endorsement required by
Section 14.3(c). All such insurance shall be at the cost and expense of the
Lessee. 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 of or any significant reduction in the coverage provided by such
insurance.
(b) The Lessee agrees that the insurance policy or policies required by
Sections 14.1 and 14.2 shall include (i) an appropriate clause pursuant to which
such policy shall provide that it will not be invalidated should the Lessee
waive, in writing, prior to a loss, any or all rights of recovery against any
party for losses covered by such policy, and that the insurance in favor of the
Lessor, the Agent and the Participants, and their respective rights under and
interests in said policies shall not be invalidated or reduced by any act or
omission or negligence of the Lessee or any other Person having any interest in
the Property, and (ii) a so-called "Waiver of Subrogation Clause". The Lessee
hereby waives any and all such rights against the Lessor, the Agent and the
Participants to the extent of payments made under such policies.
(c) All such insurance shall be written by reputable insurance
companies that are financially sound and solvent and otherwise reasonably
appropriate considering the amount and type of insurance being provided by such
companies. Any insurance company selected by the Lessee which is rated in Best's
Key Rating Guide or any successor thereto (or if there be none, an organization
having a similar national reputation) shall have a general policyholder rating
of "A" and a financial rating of at least 13 in Best's Key Rating Guide or be
otherwise acceptable to the Lessor and the Agent. All insurance policies
required by Section 14.2 shall include a standard form mortgagee endorsement in
favor of the Agent.
(d) The Lessor shall not carry separate insurance concurrent in kind or
form or contributing in the event of loss with any insurance required under this
Article XIV except that the Lessor may carry separate liability insurance (at
its sole cost) so long as (i) the Lessee's
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insurance is designated as primary and in no event excess or contributory to any
insurance the Lessor may have in force which would apply to a loss covered under
the Lessee's policy and (ii) each such insurance policy will not cause the
Lessee's insurance required under this Article XIV to be subject to a
coinsurance exception of any kind.
(e) The Lessee shall pay as they become due all premiums for the
insurance required by Section 14.1 and, from and after the Completion Date,
Section 14.2, and shall renew or replace each policy prior to the expiration
date thereof. Throughout the Term, at the time each of the Lessee's insurance
policies is renewed (but in no event less frequently than once each year), the
Lessee shall deliver to the Lessor and the Agent certified copies of the
insurance policies required by this Article XIV to be maintained by the Lessee
with respect to the Property,
(f) The Lessee hereby waives, releases and discharges the Lessor, the
Agent and each Participant and their agents and employees from all claims
whatsoever arising out of loss, claim, expense or damage to or destruction
covered or coverable by insurance required under this Article XIV
notwithstanding that such loss, claim, expense or damage may have been caused by
the Lessor, the Agent or any Participant or any of their agents or employees,
and the Lessee agrees to look to the insurance coverage only in the event of
such loss.
ARTICLE XV
15.1. Casualty and Condemnation. (a) Subject to the provisions of
Article XIV, this Article XV and (in the event the Lessee delivers, or is
obligated to deliver, a Termination Notice) Article XVI, and prior to the
occurrence and continuation of a Lease Default, the Lessee shall be entitled to
receive (and the Lessor shall pay over to the Lessee, if received by the Lessor,
and hereby irrevocably assigns to the Lessee all of the Lessor's right, title
and interest in) any award, compensation or insurance proceeds to which the
Lessee or the Lessor may become entitled by reason of their respective interests
in the Property (i) if all or a portion of the Property is damaged or destroyed
in whole or in part by a Casualty or (ii) if the use, access, occupancy,
easement rights or title to the Property or any part thereof, is the subject of
a Condemnation; provided, however, subject to Article XIV, if a Lease Default
shall have occurred and be continuing or if any such proceeds are received by
the Lessee during the Construction Period, such award, compensation or insurance
proceeds shall be paid directly to the Agent or, if received by the Lessee,
shall be held in trust for the Agent, and shall be paid over by the Lessee to
the Agent (or, if the Participation Interests have been fully paid, to the
Lessor) and held in accordance with the terms of this paragraph (a). If,
contrary to such provision, any such award, compensation or insurance proceeds
are paid to the Lessor or the Lessee rather than to the Agent, the Lessor and
the Lessee, as the case may be, hereby agree to transfer any such payment to the
Agent. All amounts held by the Lessor or the Agent under the preceding sentence
on account of any award, compensation or insurance proceeds either paid directly
to the Lessor or the Agent or turned over to the Lessor or the Agent shall
either be (i) paid to the Lessee for the repair of damage caused by such
Casualty or Condemnation in accordance with paragraph (e) of this Section 15.1,
or (ii) applied to the purchase price of the Property on the Termination Date,
with any Excess Proceeds being payable to the Lessee.
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(b) In any proceeding or action under the control of the Lessor
pursuant to the terms of Section 14.2, the Lessee may participate and shall pay
all expenses of such proceeding and its participation. At the Lessee's
reasonable request, and at the Lessee's sole cost and expense, the Lessor and
the Agent shall participate in any such proceeding, action, negotiation,
prosecution or adjustment under the control of the Lessee. The Lessor and the
Lessee agree that this Lease shall control the rights of the Lessor and the
Lessee in and to any such award, compensation or insurance payment.
(c) If the Lessor or the Lessee shall receive notice of a Casualty or
of an actual, pending or threatened Condemnation of the Property or any interest
therein, the Lessor or the Lessee, as the case may be, shall give notice thereof
to the other and to the Agent promptly after the receipt of such notice.
(d) In the event of a Casualty or receipt of notice by the Lessee or
the Lessor of a Condemnation, the Lessee may deliver to the Lessor and the Agent
a Termination Notice with respect to the Property pursuant to Section 16.1. If
the Lessee does not deliver a Termination Notice within thirty (30) days after
such occurrence, then this Lease shall (subject to the terms and conditions
thereof) remain in full force and effect, and the Lessee shall, at the Lessee's
sole cost and expense, promptly and diligently restore the Property pursuant to
paragraph (e) of this Section 15.1 and otherwise in accordance with this Lease.
If the Lessee delivers a Termination Notice within thirty (30) days after such
occurrence, a Significant Event shall irrevocably be deemed to have occurred
with respect to the Property, and, in such event, this Lease shall terminate and
the Lessee shall purchase the Property on the next Payment Date (but in no event
to exceed thirty (30) days after such occurrence) (a "Termination Date")
pursuant to Article XVI hereof.
(e) If pursuant to this Section 15.1 this Lease shall continue in full
force and effect following a Casualty or Condemnation, the Lessee shall, at its
sole cost and expense (and, without limitation, if any award, compensation or
insurance payment is not sufficient to restore the Property in accordance with
this paragraph, the Lessee shall pay the shortfall), promptly and diligently
repair any damage to the Property caused by such Casualty or Condemnation or
substitute new Equipment for the affected Equipment in conformity with the
requirements of Sections 10.1 and 11.1 using the as-built Plans and
Specifications for the Property (as modified to give effect to any subsequent
Modifications, any Condemnation affecting the Property and all applicable
Requirements of Law and Insurance Requirements) so as to restore the Property to
at least the same condition, operation, function and value as existed
immediately prior to such Casualty or Condemnation; provided, the substitution
of any Equipment for any such affected Equipment shall, at the Lessor's
reasonable request, be subject to delivery of an independent third-party
appraisal reasonably satisfactory to the Lessor and the Required Participants by
an appraiser satisfactory to the Lessor and the Required Participants showing
both (i) a current Fair Market Sales Value and (ii) expected Fair Market Sales
Value as of the then current Expiration Date and the date on which the potential
Renewal Term would expire, in each case equal to or greater than such values at
such dates for the Equipment being replaced. In the event of such restoration,
title to the Property shall remain with the Lessor; provided, that (i) title to
any such substituted equipment shall vest in the Lessor and such equipment shall
constitute Equipment
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thereafter for all purposes of this Lease, and (ii) the Lessor shall assign all
of its right, title and interest to the Lessee in any such replaced equipment
without representation or warranty of any kind other than that such equipment is
free of Lessor Liens. Upon completion of such restoration, the Lessee shall
furnish the Lessor an architect's certificate of substantial completion and a
Responsible Officer's Certificate confirming that such restoration has been
completed pursuant to this Lease.
(f) In no event shall a Casualty or Condemnation with respect to which
this Lease remains in full force and effect under this Section 15.1 affect the
Lessee's obligations to pay Rent pursuant to Section 3.1 or to perform its
obligations and pay any amounts due on the Expiration Date or pursuant to
Articles XIX and XX.
(g) Any Excess Proceeds received by the Lessor or the Agent in respect
of a Casualty or Condemnation shall be turned over to the Lessee, provided that
no Lease Event of Default or Lease Default has occurred and is continuing.
15.2. Environmental Matters. Promptly upon the Lessee's actual
knowledge of the presence of Hazardous Substances in any portion of the Property
in concentrations and conditions that constitute an Environmental Violation, the
Lessee shall notify the Lessor in writing of such condition. In the event of
such Environmental Violation, the Lessee shall, not later than thirty (30) days
after the Lessee has actual knowledge of such Environmental Violation, either,
if such Environmental Violation is a Significant Event, deliver to the Lessor
and the Agent a Responsible Officer's Certificate and a Termination Notice with
respect to the Property pursuant to Section 16.1, or, if such Environmental
Violation is not a Significant Event, at the Lessee's sole cost and expense,
promptly and diligently commence any Response Actions necessary to investigate,
remove, clean up or remediate the Environmental Violation in accordance with the
terms of Section 9.1. If the Lessee does not deliver a Termination Notice with
respect to the Property pursuant to Section 16.1, the Lessee shall, upon
completion of Response Actions by the Lessee, cause to be prepared by an
environmental consultant reasonably acceptable to the Lessor a report describing
the Environmental Violation and the Response Actions taken by the Lessee (or its
agents) for such Environmental Violation, and a statement by the consultant that
the Environmental Violation has been remedied in compliance in all material
respects with applicable Environmental Law. Each such Environmental Violation
shall be remedied prior to the Expiration Date. Nothing in this Article XV shall
reduce or limit the Lessee's obligations under Sections 13.1, 13.2 or 13.3 of
the Participation Agreement.
15.3. Notice of Environmental Matters. Promptly, but in any event
within the thirty (30) Business Days from the date the Lessee has actual
knowledge thereof, the Lessee shall provide to the Lessor written notice of any
material pending or threatened claim, action or proceeding involving any
Environmental Law or any Release on or in connection with the Property. All such
notices shall describe in reasonable detail the nature of the claim, action or
proceeding and the Lessee's proposed response thereto. In addition, the Lessee
shall provide to the Lessor, within thirty (30) Business Days of receipt, copies
of all material written communications with any Governmental Authority relating
to any Environmental Law in connection with the Property. The Lessee shall also
promptly provide such detailed reports of
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any such Material environmental claims as may reasonably be requested by the
Lessor and the Agent.
ARTICLE XVI
16.1. Termination by the Lessee upon Certain Events. If either: (i) the
Lessee or the Lessor shall have received notice of a Condemnation, and the
Lessee shall have delivered to the Lessor a Responsible Officer's Certificate
that such Condemnation is a Significant Condemnation; or (ii) a Casualty occurs,
and the Lessee shall have delivered to the Lessor a Responsible Officer's
Certificate that such Casualty is a Significant Casualty; or (iii) an
Environmental Violation occurs or is discovered and the Lessee shall have
delivered to the Lessor a Responsible Officer's Certificate stating that, in the
reasonable, good-faith judgment of the Lessee, the cost to remediate the same
will cause the same to be a Significant Event, or (iv) if the Lessee shall not
have delivered a Termination Notice with respect to such Environmental Violation
described in clause (iii) but the requirements of Section 16.3 are met with
respect to such Environmental Violation; then, the (A) Lessee shall,
simultaneously with the delivery of the Responsible Officer's Certificate
pursuant to the preceding clause (i), (ii) or (iii) deliver a written notice in
the form described in Section 16.2(a) (a "Termination Notice"), or (B) if clause
(iv) is applicable, the Lessor may deliver a Termination Notice pursuant to
Section 16.3.
16.2. Procedures. (a) A Termination Notice shall contain: (i) notice of
termination of this Lease with respect to the Property or the affected portion
thereof on a date that is no later than thirty (30) days after the occurrence of
the applicable event described in clause (i), (ii) or (iii) of Section 16.1 (the
"Termination Date"), such termination to be effective upon the Lessee's payment
of the Asset Termination Value (or portion thereof representing the Property
Cost of the affected portion of the Property); and (ii) a binding and
irrevocable agreement of the Lessee to pay the Asset Termination Value and
purchase the Property on the Termination Date.
(b) On the Termination Date, the Lessee shall pay to the Lessor the
Asset Termination Value (or such portion thereof, as applicable), plus all other
amounts owing in respect of Rent for the Property (including Supplemental Rent)
theretofore accruing, and the Lessor shall convey the Lessor's interest in the
Property or such portion thereof to the Lessee (or the Lessee's designee) all in
accordance with Section 19.1, as well as any Net Proceeds with respect to the
Casualty or Condemnation giving rise to the termination of this Lease with
respect to the Property theretofore received by the Lessor.
16.3. Purchase of Property. Upon receipt of any notice pursuant to
Section 15.2 or 15.3, the Lessor or the Required Participants, at the Lessee's
expense, shall have the right to select an independent environmental consultant
acceptable to the Lessee, which acceptance shall not be unreasonably withheld or
delayed, to determine the estimated cost of conducting any clean-up or
remediation required as a result of the Environmental Violation disclosed in
such notice. If such independent environmental consultant determines that the
cost of any such clean-up or remediation would exceed thirty percent (30%) of
the original Property Cost, the Lessor shall, at the direction of the Required
Participants, by written notice require the Lessee to purchase, or
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arrange for an Affiliate or other third party to purchase, the Property on the
Expiration Date by delivering a Termination Notice following the requirements of
Section 16.2 hereof.
ARTICLE XVII
17.1. Lease Events of Default. The occurrence of any one or more of the
following events (whether such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body) shall constitute a "Lease Event of
Default":
(a) the Lessee shall fail to make payment of (i) any Basic Rent (other
than a payment of Basic Rent due on the Expiration Date or Termination Date)
within five (5) days after the same has become due and payable or (ii) Basic
Rent, Purchase Option Price, Asset Termination Value or Residual Value Guarantee
Amount or other amounts due on the Expiration Date or the Termination Date,
including, without limitation, amounts due pursuant to Sections 16.2, 16.3,
17.2(h), 20.1, 20.2, 20.3 or 22.1, after the same has become due and payable;
(b) the Lessee shall fail to make payment of any Supplemental Rent
(other than Supplemental Rent referred to in clause (a) of this Section) due and
payable within five (5) days after the same has become due and payable;
(c) the Lessee shall fail to maintain insurance as required by Article
XIV of this Lease;
(d) the Lessee shall fail to observe or perform any term, covenant or
condition of the Lessee under this Lease, the Participation Agreement or any
other Operative Agreement to which it is a party other than those described in
Section 17.1(a), (b) or (c), hereof, or any representation or warranty set forth
in this Lease or in any other Operative Document or in any document entered into
in connection herewith or therewith or in any document, certificate or financial
or other statement delivered in connection herewith or therewith shall be false
or inaccurate in any Material way, and, if such failure to perform or
misrepresentation or breach of warranty is other than with respect to a covenant
or agreement contained in Section 10.1(b) of the Participation Agreement, such
failure or misrepresentation or breach of warranty shall remain uncured for a
period of 30 days after the earlier of (i) the date upon which the President,
Chief Financial Officer or the project manager for the Property, if any, of the
Lessee has actual knowledge thereof and (ii) the date upon which the Agent, the
Lessor or any Participant gives notice to the Lessee thereof; provided, that if
such failure to perform is not capable of being cured within such period but is
capable of being cured within one hundred eighty (180) days after the occurrence
of such default and the Lessee is proceeding diligently to cure such default,
the Lessee shall be entitled to request an additional period (not to exceed one
hundred eighty (180) days from the date of such default) to cure such default,
which extended cure period may be granted by the Lessor and the Required
Participants in their sole discretion;
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(e) (i) failure to pay when due Indebtedness in an aggregate principal
amount of $2,000,000 or more of the Lessee or any Subsidiary or (ii) default
other than a Change in Control under the Credit Agreement shall occur under one
or more indentures, agreements or other instruments under which any Indebtedness
of the Lessee or any Subsidiary in an aggregate principal amount of $2,000,000
or more may be issued or created and such default shall continue for a period of
time sufficient to permit the holder or beneficiary of such Indebtedness or a
trustee therefor to cause the acceleration of the maturity of any such
Indebtedness or any mandatory unscheduled prepayment, purchase or funding
thereof;
(f) the Lessee or any Subsidiary shall (i) have entered involuntarily
against it an order for relief under the United States Bankruptcy Code, as
amended, or any analogous action is taken under any other applicable law
relating to bankruptcy or insolvency not dismissed or fully bonded within 90
days, (ii) fail to pay, or admit in writing its inability to pay, its debts
generally as they become due, (iii) make an assignment for the benefit of
creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of
a receiver, custodian, trustee, examiner, liquidator or similar official for it
or any substantial part of its Property, (v) institute any proceeding seeking to
have entered against it an order for relief under the United States Bankruptcy
Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition of it or
its debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (vi) take any
corporate action (such as the passage by the Lessee's board of directors of a
resolution) in furtherance of any matter described in parts (i)-(v) above, or
(vii) fail to contest in good faith any appointment or proceeding described in
Section 17.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Lessee or any material Subsidiary or any
substantial part of any of their Property, or a proceeding described in Section
17.1(f)(v) shall be instituted against the Lessee or any Subsidiary, and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of ninety (90) days;
(h) the Lessee or any Subsidiary shall fail within forty-five (45) days
to pay, bond over or otherwise discharge any judgment or order for the payment
of money in excess of $2,000,000, which is not stayed on appeal or otherwise
being appropriately contested in good faith in a manner that stays execution
thereon;
(i) the Lessee or any other member of the Controlled Group shall fail
to pay when due an amount or amounts which it shall have become liable to pay to
the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate
a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of
$2,000,000 (collectively, a "Material Plan") shall be filed under Title IV of
ERISA by the Lessee or any Subsidiary or any other member of the Controlled
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any Material Plan or a proceeding shall be
instituted by a fiduciary of any Material Plan against the Lessee or any other
member of the Controlled Group to enforce
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Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been
dismissed within thirty (30) days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any Material Plan must be terminated;
(j) a Change of Control shall occur; or
(k) a Guarantee Event of Default shall have occurred and be continuing;
(l) a Construction Agency Agreement Event of Default shall have
occurred and be continuing;
(m) the Lessee shall have abandoned or constructively abandoned all or
any material portion of the Property for a period of 30 consecutive days which
results in the Property not being properly maintained in accordance with the
terms of this Lease; or
(n) the Lessee shall have elected to or be required to purchase the
Property pursuant to Sections 16.2 or 16.3 hereof and such purchase shall not
have been consummated on the Termination Date pursuant to either such Section.
17.2. Remedies. Upon the occurrence of any Lease Event of Default and
at any time thereafter, the Lessor may, so long as such Lease Event of Default
is continuing, 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 Lease Event of Default (including, without
limitation, the obligation of the Lessee to purchase the Property as set forth
in Section 20.3):
(a) The Lessor may, by notice to the Lessee, terminate the Commitments
and rescind or terminate this Lease as to all or any portion of the Property as
of the date specified in such notice; however, (i) no reletting, reentry or
taking of possession of the Property (or any portion thereof) 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 Lease 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
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 Property promptly to the
Lessor in the manner and condition required by, and otherwise in accordance with
all of the provisions of, Articles VIII, IX and X hereof as if the Property were
being returned at the end of the 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 Property, and to the extent and
in the manner permitted by Applicable Law, enter upon the Property and take
immediate possession of (to the exclusion of the Lessee) the Property or any
part thereof and expel or remove the Lessee and any other Person who may be
occupying the Property, by summary proceedings or otherwise, all without
liability to the Lessee
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for or by reason of such entry or taking of possession, whether for the
restoration of damage to property caused by such taking or otherwise and, in
addition to the Lessor's other damages, the Lessee shall be responsible for all
reasonable costs and expenses incurred by the Lessor and/or the Agent or the
Participants in connection with any reletting, including, without limitation,
brokers' fees and all reasonable costs of any alterations or repairs made by the
Lessor;
(c) The Lessor may (i) sell all or any part of the 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 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 (subject to Section
17.2(h)) (A) the excess, if any, of (1) the Asset Termination Value calculated
as of such Payment Date (including all Rent due and unpaid to and including such
Payment Date), over (2) the net proceeds of such sale, if any (that is, after
deducting all reasonable costs and expenses incurred by the Lessor, the Agent
and the Participants incident to such conveyance, including, without limitation,
repossession costs, brokerage commissions, prorations, transfer taxes, fees and
expenses for counsel, title insurance fees, survey costs, recording fees, and
any repair or alteration costs); plus (B) all damages, reasonable costs and
expenses of the Lessor under the Subleases or the Ground Lease; plus (C)
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 the Lease with respect
to the Property, and continue to collect all Basic Rent, Supplemental Rent, and
all other amounts due 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 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 and may make such reasonable alterations and necessary repairs in order to
relet the Property, and relet the Property or any part thereof for such term or
terms (which may be for a term extending beyond the 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 and the other Operative Documents 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
period be less than the Rent with respect to the Property to be paid during that
period by the Lessee hereunder, the Lessee shall pay any deficiency, as
calculated by the Lessor, to the Lessor on the next Payment Date;
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(e) Unless the Property has been sold in its entirety, subject to
Section 17.2(h) the Lessor may, whether or not the Lessor shall have exercised
or shall thereafter at any time exercise any of its rights under paragraph (b),
(c) or (d) of this Section 17.2 with respect to the Property or portions
thereof, demand, by written notice to the Lessee specifying a date (a
"Termination Date") not earlier than 10 days after the date of such notice, that
the Lessee purchase, on such Termination Date, the Property (or the remaining
portion thereof) in accordance with the provisions of Article XIX and Section
20.3;
(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
period(s), and such suits shall not in any manner prejudice the Lessor's right
to collect any such damages for any subsequent period(s), or the Lessor may
defer any such suit until after the expiration of the Term, in which event such
suit shall be deemed not to have accrued until the expiration of the Term;
(g) The Lessor may retain and apply against the Lessor's damages all
sums which the Lessor would, absent such Lease Event of Default, be required to
pay to, or turn over to, the Lessee pursuant to the terms of this Lease; or
(h) Notwithstanding anything contained in this Lease to the contrary,
in the event that the Lease Event of Default resulting in the exercise of
remedies by the Lessor hereunder is solely an Event of Default described in
Section 17.1(l) occurring during the Construction Period, the Lessee shall, at
the request of the Lessor, (i)(A) return the Property to the Lessor or a Person
designated by the Lessor on a date specified by the Lessor (which date shall
constitute the Expiration Date) and/or (B) remarket the Property for the Lessor
as the Lessor's agent subject to the Lessor's direction, and (ii) pay to the
Lessor (A) the maximum Residual Value Guarantee Amount on the date that is ten
(10) days after the date the Lessor furnishes the Lessee notice that it will
require the Lessee to return or remarket the Property, provided that the Lessor
may recover from the Lessee, and the Lessee shall be obligated to pay to the
Lessor the Asset Termination Value as of such date (notwithstanding the
limitation to maximum Residual Value Guarantee Amount contained in clause (A)
above) if an Event of Default under Section 17.1(f) or (g) shall have occurred
or if such Lease Event of Default under Section 17.1 (l) arises out of or
results from a Fully Indemnifiable Event. If the Lessee has paid the Residual
Value Guarantee Amount as required herein, net proceeds from a sale of the
Property pursuant to this Section 17.2(h) or, if not sold as provided in this
Section 17.2(h), from a sale of the Property occurring thereafter, shall be
distributed as provided in Section 3.14 of the Participation Agreement.
17.3. Waiver of Certain Rights. If this Lease shall be terminated
pursuant to Section 17.2, the Lessee waives, to the fullest extent permitted by
law, (a) any notice of re-entry or the institution of legal proceedings to
obtain re-entry or possession; (b) any right of redemption, re-entry or
repossession; (c) the benefit of any laws now or hereafter in force exempting
property from liability for rent or for debt or limiting the Lessor with respect
to the election of remedies; and (d) any other rights which might otherwise
limit or modify any of the Lessor's rights or remedies under this Article XVII.
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17.4. Power of Sale and Foreclosure. In the event that a court of
competent jurisdiction rules that this Lease constitutes a mortgage, deed of
trust or other secured financing, and subject to the availability of such remedy
under applicable law, then the Lessor and the Lessee agree that (i) the Lessee
hereby grants a Lien against the Property WITH POWER OF SALE, and that, upon the
occurrence of any Lease Event of Default the Lessor shall have the power and
authority, to the extent provided by law, after proper notice and lapse of such
time as may be required by law, to sell the Property at the time and place of
sale fixed by the Lessor in said notice of sale, either as a whole, or in
separate lots or parcels or items and in such order as the Lessor may elect, at
auction to the highest bidder for cash in lawful money of the United States
payable at the time of sale; accordingly, it is acknowledged that A POWER OF
SALE HAS BEEN GRANTED IN THIS INSTRUMENT; A POWER OF SALE MAY ALLOW THE LESSOR
TO TAKE THE PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION
UPON DEFAULT BY THE LESSEE UNDER THIS INSTRUMENT, and (ii) upon the occurrence
of a Lease Event of Default, the Lessor, in lieu of or in addition to exercising
any power of sale hereinabove given, may proceed by a suit or suits in equity or
at law, whether for a foreclosure hereunder, or for the sale of the Property, or
against the Lessee on a recourse basis for the Asset Termination Value, or the
specific performance of any covenant or agreement herein contained or in aid of
the execution of any power herein granted, or for the appointment of a receiver
pending any foreclosure hereunder or the sale of the Property, or for the
enforcement of any other appropriate legal or equitable remedy.
17.5. Remedies Cumulative. The remedies herein provided shall be
cumulative and in addition to (and not in limitation of) any other remedies
available at law, equity or otherwise, including, without limitation, any
mortgage foreclosure remedies.
17.6. Lessee's Right to Cure. Notwithstanding any provision contained
in the Lease or any other Operative Document, if a Lease Event of Default has
occurred and is continuing, the Lessee shall have the right to cure such Lease
Event of Default by (a) exercising its Purchase Option at any time prior to the
earlier of (i) the termination of the Lessee's possessory interest in the
Property, and (ii) the thirty day period following the occurrence of a Lease
Event of Default, and (b) purchasing the Property at any time prior to such time
as a foreclosure upon or sale of the Property has been completed.
ARTICLE XVIII
18.1. The Lessor's Right to Cure the Lessee's Lease Defaults. The
Lessor, without waiving or releasing any obligation or Lease Event of Default,
may (but shall be under no obligation to) remedy any Lease Event of Default for
the account and at the sole cost and expense of the Lessee (subject to the
limitations set forth in Section 24.1), including the failure by the Lessee to
maintain the insurance required by Article XIV, and may, to the fullest extent
permitted by law, and notwithstanding any right of quiet enjoyment in favor of
the Lessee, enter upon the Property for such purpose and take all such action
thereon as may be necessary or appropriate therefor. No such entry shall be
deemed an eviction of the Lessee. All out-of-pocket costs and expenses so
incurred (including fees and expenses of counsel), together with interest
thereon at the Overdue Rate from the date on which such sums or expenses are
paid by the
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Lessor, shall be paid by the Lessee (subject to the limitations set forth in
Section 24.1) to the Lessor on demand, as Supplemental Rent.
ARTICLE XIX
19.1. Provisions Relating to the Lessee's Termination of this Lease or
Exercise of Purchase Option or Obligation and Conveyance Upon Remarketing and
Conveyance Upon Certain Other Events. (a) In connection with any termination of
this Lease pursuant to the terms of Section 16.2 or 16.3 (if the Lessee is
obligated to purchase the Property), or in connection with the Lessee's exercise
of its Purchase Option or Expiration Date Purchase Obligation, upon the date on
which this Lease is to terminate or upon the Expiration Date, and upon tender by
the Lessee of the amounts set forth in Sections 16.2(b), 20.1, 20.2 or 20.3, as
applicable, the Lessor shall execute and deliver to the Lessee (or to the
Lessee's designee) at the Lessee's cost and expense an assignment without
recourse of the Lessor's right, title and interest in the Property (which shall
include a release, quitclaim and assignment of all of the Lessor's right, title
and interest in and to any Net Proceeds not previously received by the Lessor),
subject to the Permitted Exceptions (other than Lessor Liens) and any
encumbrance caused by the fault, neglect or intention of the Lessee, in
recordable form and otherwise in conformity with local custom and free and clear
of any Lessor Liens attributable to the Lessor, including a release or
assignment of the lien of the Mortgage and the lien created by this Lease. The
Improvements and the Equipment shall be conveyed to the Lessee "AS IS" and in
their then present condition of title and physical condition free of any Lessor
Liens.
(b) If the Lessee properly exercises the Remarketing Option or is
required to remarket the Property or return the Property to the Lessor pursuant
to Section 17.2, then the Lessee shall, on the Expiration Date, and at its own
cost, transfer possession of the Property to the Lessor or the independent
purchaser thereof, as the case may be, 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 Lessor Liens, in good condition (as modified by
Modifications permitted by this Lease), ordinary wear and tear excepted, in
compliance with Applicable Law, and in "broom-swept clean" condition. The Lessee
shall cooperate reasonably with the Lessor and the independent purchaser of the
Property in order to facilitate the purchase by such purchaser of the Property
which cooperation shall include the following, all of which the Lessee shall do
on or before the Expiration Date: providing all books and records regarding the
maintenance and ownership of the Property and all know-how, data and technical
information relating thereto, providing a current copy of the "as built" Plans
and Specifications for the Property, granting or assigning all licenses
necessary for the operation and maintenance of the Property and cooperating
reasonably in seeking and obtaining all necessary Governmental Action and
complying with the provisions of Section 22.3 hereof. The obligations of the
Lessee under this paragraph shall survive the expiration or termination of this
Lease.
ARTICLE XX
20.1. Purchase Option. Without limitation of the Lessee's purchase
obligation pursuant to Sections 20.2 or 20.3, unless the Lessee shall have given
notice of its intention to exercise the
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Remarketing Option and the Lessor shall have entered into a binding contract to
sell the Property, the Lessee shall have the option (exercisable by giving the
Lessor irrevocable written notice (the "Purchase Notice") of the Lessee's
election to exercise such option) to purchase, or to designate a third party to
purchase, the Property on the date specified in such Purchase Notice, which date
shall be a Payment Date. The purchase price shall be equal to the Asset
Termination Value plus all other amounts owing in respect of Rent (including
Supplemental Rent) theretofore accruing (the "Purchase Option Price"). The
Lessee shall deliver the Purchase Notice to the Lessor not less than thirty (30)
days prior to the purchase date. If the Lessee exercises its option to purchase
the Property pursuant to this Section 20.1 (the "Purchase Option"), the Lessor
shall transfer to the Lessee all of the Lessor's right, title and interest in
and to the Property as of the date specified in the Purchase Notice upon receipt
of the Purchase Option Price and all Rent and other amounts then due and payable
under this Lease and any other Operative Document, in accordance with Section
19.l(a).
20.2. Expiration Date Purchase Obligation. Unless (a) the Lessee shall
have properly exercised the Purchase Option pursuant to Section 20.1 and
purchased the Property pursuant thereto, (b) the Lessee shall have properly
exercised the Remarketing Option and shall have fulfilled all of the conditions
of clauses (a) through (j) of Section 22.1 hereof, or (c) the Lessee shall have
properly exercised the Renewal Option pursuant to Section 21.1 and the terms and
conditions of a Renewal Term shall have been agreed upon pursuant to such
Section, then, subject to the terms, conditions and provisions set forth in this
Article, and in accordance with the terms of Section 19.1(a), the Lessee shall
purchase from the Lessor, and the Lessor shall assign to the Lessee without
recourse, on the Expiration Date of the Term (as such Term may be renewed
pursuant to Section 21.1) all of the Lessor's right, title and interest in the
Property for an amount equal to the Asset Termination Value, including a release
or assignment of the lien of the Mortgage and the lien created by this Lease.
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 (time being of the essence),
the transferee or transferees to whom the conveyance shall be made (if other
than to the Lessee), in which case such conveyance shall (subject to the terms
and conditions set forth herein) be made to such designee; provided, however,
that such designation of a transferee or transferees shall not cause the Lessee
to be released, fully or partially, from any of its obligations under this
Lease, including, without limitation, the obligation to pay the Lessor an amount
equal to the Asset Termination Value that was not fully and finally paid by such
designee on such Expiration Date.
20.3. Acceleration of Purchase Obligation. (a) The Lessee shall be
obligated to purchase for an amount equal to the Asset Termination Value the
Lessor's interest in the Property (notwithstanding any prior election to
exercise its Purchase Option pursuant to Section 20.1) (i) automatically and
without notice upon the occurrence of any Lease Event of Default specified in
clause (f) or (g) of Section 17.1, and (ii) as provided for at Section 17.2(e)
immediately upon written demand of the Lessor upon the occurrence of any other
Lease Event of Default (except as provided in Section 17.2(h)).
(b) The Lessee shall be obligated to purchase for an amount equal to
the Asset Termination Value (plus all other amounts owing in respect of Rent
(including Supplemental
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Rent) theretofore accruing) immediately upon written demand of the Lessor the
Lessor's interest in the Property at any time during the Term when the Lessor
ceases to have title as contemplated by Section 12.1.
ARTICLE XXI
21.1. Renewal.
(a) Subject to the conditions set forth herein, the Lessee shall have
the option (each, a "Renewal Option") by written request (each, a "Renewal
Request") to the Lessor, each Participant and the Agent given not later than 180
days prior to the Initial Expiration Date or, if applicable, the Extended
Expiration Date, to renew the Term for an additional one-year period commencing
on the date following such Initial Expiration Date or Extended Expiration Date,
as the case may be. No later than the date (the "Renewal Response Date") which
is thirty (30) days after any such request has been delivered to each of the
Lessor, each Participant and the Agent, the Lessor will notify the Lessee in
writing (with a copy to the Agent) whether or not it consents to such Renewal
Request (which consent may be granted or denied in its sole discretion and may
be conditioned on receipt of such financial information or other documentation
as may be specified by the Lessor including without limitation a satisfactory
appraisal of the Property), provided that if the Lessor shall fail to notify the
Lessee on or prior to the applicable Renewal Response Date, it shall be deemed
to have denied such Renewal Request. The renewal of the Term contemplated by any
Renewal Request shall become effective as of the Expiration Date then in effect
(the "Extension Effective Date") on or after the Renewal Response Date on which
the Lessor shall have consented to such Renewal Request; provided that such
renewal shall be subject to and conditioned upon the following:
(A) on both the applicable Extension Effective Date and the
date of the Renewal Request, (i) no Lease Default or Lease Event of
Default shall have occurred and be continuing, and (ii) the Lessor and
the Agent shall have received a Responsible Officer's Certificate of
the Lessee as to the matters set forth in clause (i) above,
(B) the Lessee shall not have exercised the Remarketing
Option, and
(C) the Maturity Date in effect as of the date of such Renewal
Request contemporaneously is extended pursuant to Section 3.6 of the
Participation Agreement such that the Renewal Term will expire on the
same date as the Maturity Date then in effect.
(b) Any renewal of this Lease shall be on the same terms and conditions
as are set forth in this Lease for the original Term, with such modifications
thereto, if any, as the parties hereto and to the other Operative Documents may
negotiate based upon the current credit information regarding the Lessee,
interest rates and such other factors as the Lessor may consider relevant. No
more than two Renewal Terms shall be permitted hereunder.
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ARTICLE XXII
22.1. Option to Remarket. Subject to the fulfillment of each of the
conditions set forth in this Section 22.1, the Lessee shall have the option (the
"Remarketing Option") to market for the Lessor and complete the sale of all, but
not less than all, of the Lessor's interest in the Property on the Expiration
Date for the Lessor.
The Lessee's effective exercise and consummation of the Remarketing
Option shall be subject to the due and timely fulfillment of each of the
following provisions as of the dates set forth below.
(a) Not later than one hundred eighty (180) days prior to the
Expiration Date, the Lessee shall give to the Lessor written notice of the
Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable
(except by delivery of a Purchase Notice and consummation of the exercise of the
Purchase Option prior to the earlier of (i) the Expiration Date or (ii) the date
on which the Lessor enters into a binding contract to sell the Property pursuant
to the exercise of the Remarketing Option).
(b) The Lessee shall deliver to the Lessor an Environmental Audit of
the Property together with its notice of exercise of the Remarketing Option.
Such Environmental Audit shall be prepared by an environmental consultant
selected by Lessor in the Lessor's reasonable discretion and shall contain
conclusions reasonably satisfactory to the Lessor as to the environmental status
of the Property. If such Environmental Audit indicates any material exceptions
reasonably requiring remedy or further investigation, the Lessee shall have also
delivered a Phase Two environmental assessment by such environmental consultant
prior to the Expiration Date showing the completion of the remedying of such
exceptions in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Lessor of the Lessee's
exercise of the Remarketing Option, no Lease Event of Default or Lease Default
shall exist, and thereafter, no uncured Lease Event of Default or Lease Default
shall exist.
(d) The Lessee shall have completed in all Material respects all
Modifications, restoration and rebuilding of the Property pursuant to Sections
11.1 and 15.1 (as the case may be) and shall have fulfilled in all Material
respects all of the conditions and requirements in connection therewith pursuant
to said Sections, in each case by the date on which the Lessor receives the
Lessee's notice of the Lessee's exercise of the Remarketing Option (time being
of the essence), regardless of whether the same shall be within the Lessee's
control. The Lessee shall have also paid the cost of all Modifications commenced
prior to the Expiration Date. The Lessee shall not have been excused pursuant to
Section 13.1 from complying with any Applicable Law that involved the extension
of the ultimate imposition of such Applicable Law beyond the last day of the
Term. Any Permitted Exceptions on the Property that were contested by the Lessee
shall have been removed.
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<PAGE>
(e) During the Marketing Period, the Lessee shall, as nonexclusive
agent for the Lessor, use commercially reasonable efforts to sell the Lessor's
interest in the Property on or prior to the Expiration Date (without diminishing
the Lessee's obligation to consummate the sale on the Expiration Date) and will
attempt to obtain the highest purchase price therefor and for not less than the
Fair Market Sales Value. The Lessee will be responsible for hiring and
compensating brokers and making the Property available for inspection by
prospective purchasers. The Lessee shall promptly upon request permit inspection
of the Property and any maintenance records relating to the Property by the
Lessor, any Participant and any potential purchasers, and shall otherwise do all
things necessary to sell and deliver possession of the Property to any
purchaser. All such marketing of the Property shall be at the Lessee's sole
expense. The Lessee shall allow the Lessor and any potential qualified purchaser
reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor, the Agent and the
Participants, and the Lessor 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
unless the Lessor, the Agent and the Participants shall otherwise agree in their
sole discretion. The Lessee shall use its best efforts to procure bids from one
or more bona fide prospective purchasers and shall deliver to the Lessor, the
Agent and the Participants (i) any bids procured and (ii) not less than ninety
(90) days prior to the Expiration Date a binding written unconditional (except
as set forth below), irrevocable offer with respect to any bids received by such
purchaser or purchasers offering the highest bid to purchase the Property. No
such purchaser shall be the Lessee, or any Subsidiary or Affiliate of the
Lessee. The written offer must specify the Expiration Date as the closing date
unless the Lessor, the Agent and the Participants shall otherwise agree in their
sole discretion.
(g) In connection with any such sale of the Property, the Lessor and
the Lessee will negotiate in good faith with the purchaser appropriate "sellers"
indemnities, representations and warranties regarding title, absence of Liens
(except Lessor Liens) and the condition of the Property, as well as such other
terms and conditions as are customary in transactions involving the sale of
commercial properties similar to the Property. The Lessee shall have obtained,
at its cost and expense, all required governmental and regulatory consents and
approvals and shall have made all filings as required by Applicable Law in order
to carry out and complete the transfer of the Property. 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.
Any agreement as to such sale shall be made subject to the Lessor's rights
hereunder.
(h) The Lessee shall pay directly, and not from the sale proceeds, all
prorations, credits, costs and expenses of the sale of the Property, whether
incurred by the Lessor, the Participants or the Lessee, including without
limitation, the cost of all title insurance, surveys, environmental reports,
appraisals, transfer taxes, the Lessor's, the Participants' and the Agent's
reasonable 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 or prior to the Expiration
Date (or to such other Person as the Agent shall notify the Lessee in writing,
or in the case of Supplemental Rent,
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<PAGE>
to the Person entitled thereto) an amount equal to the Residual Value Guarantee
Amount, plus all Rent and all other amounts hereunder which have accrued or will
accrue prior to or as of the Expiration Date, in the type of funds specified in
Section 3.4 hereof.
(j) If the selling price of the Property is less than the difference
between the Asset Termination Value minus the Residual Value Guarantee Amount,
then the Lessee shall have caused to be delivered to the Lessor, the Agent and
each Participant the appraisal required by Section 13.2 of the Participation
Agreement thirty (30) Business Days prior to the Expiration Date and shall pay
to the Agent on or prior to the Expiration Date (or to such other person as the
Agent shall notify the Lessee in writing) the amounts required to be paid
pursuant to Section 13.2 of the Participation Agreement.
(k) The purchase of the Property shall be consummated on the Expiration
Date following the payment by the Lessee pursuant to paragraphs (i) and (j)
above and contemporaneously with the Lessee's surrender of the Property pursuant
to Section 19.1(b) and the net proceeds (the "Proceeds") of the sale of the
Property shall be paid directly to the Agent.
(l) The Lessee shall not be entitled to exercise or consummate the
Remarketing Option if a circumstance that would permit the Lessor to require the
Lessee to repurchase the Property under Section 16.3 exists and is continuing.
If one or more of the foregoing provisions shall not be fulfilled as of
the date set forth above, then the Lessor shall declare by written notice to the
Lessee the Remarketing Option to be null and void (whether or not it has been
theretofore exercised by the Lessee) as to the Property, in which event all of
the Lessee's rights under this Section 22.1 shall immediately terminate and the
Lessee shall be obligated to vacate the Property on the Expiration Date and
comply with the obligations set forth in Section 22.3. Except as expressly set
forth herein, the Lessee shall have no right, power or authority to bind the
Lessor in connection with any proposed sale of the Property.
Notwithstanding the foregoing, if the Lessee has paid the Residual
Value Guarantee Amount as required herein, net proceeds from a sale of the
Property pursuant to the Remarketing Option or, if not sold as provided in this
Section 22.1 from a sale of the Property occurring thereafter shall be
distributed as provided in Section 3.14 of the Participation Agreement.
22.2. Certain Obligations Continue. During the Marketing Period, the
obligation of the Lessee to pay Rent (including the installment of Basic Rent
due on the fifth anniversary of the Closing Date or at the end of the Renewal
Term, as the case may be) shall continue undiminished until payment in full to
the Agent of the Proceeds, the Residual Value Guarantee Amount, and all other
amounts due to the Lessor with respect to the Property under the Operative
Documents. The Lessor shall have the right, but shall be under no duty, to
solicit bids, to inquire into the efforts of the Lessee to obtain bids or
otherwise to take action in connection with any such sale, other than as
expressly provided in this Article XXII.
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<PAGE>
22.3. Support Obligations. In the event that (A) the Lessee does not
elect to purchase the Property on the Expiration Date, (B) this Lease is
terminated without a purchase of the Property by the Lessee as expressly
permitted herein, or (C) pursuant to the Lessor's exercise of remedies under
Article XVII, this Lease is terminated, the Lessee shall provide the Lessor or
other purchaser of the Property, effective on the Expiration Date or earlier
termination of this Lease, with (i) all permits, certificates of occupancy,
governmental licenses and authorizations necessary to use and operate the
Property for its intended purposes (to the extent such items are transferable or
may be obtained by the Lessee on behalf of another party), (ii) such easements,
licenses, rights-of-way and other rights and privileges in the nature of an
easement as are reasonably necessary or desirable in connection with the use,
repair, access to or maintenance of the Property as the Lessor shall request,
and (iii) a services agreement covering such services as the Lessor may request
in order to use and operate the Property for its intended purposes at such rates
(not in excess of arm's length fair market rates) as shall be acceptable to the
Lessor and the Lessee. All assignments, licenses, easements, agreements and
other deliveries required by clauses (i) and (ii) of this Section 22.3 shall be
in form satisfactory to the Lessor and shall be fully assignable (including both
primary assignments and assignments given in the nature of security) without
payment of any fee, cost or other charge.
ARTICLE XXIII
23.1. Holding Over. If the Lessee shall for any reason remain in
possession of the Property after the expiration or earlier termination of this
Lease (unless the Property is conveyed to the Lessee), such possession shall be
as a tenancy at sufferance during which time the Lessee shall continue to pay
Prepaid Rent, to the extent such possession occurs prior to the Completion Date,
or Supplemental Rent, to the extent such possession occurs from and after the
Completion Date, that would be payable by the Lessee hereunder were the Lease
then in full force and effect and the Lessee shall continue to pay Basic Rent at
an annual rate equal to 110% of the average rate of Basic Rent payable hereunder
during the Term. Such Basic Rent shall be payable from time to time upon demand
by the Lessor. During any period of tenancy at sufferance, the Lessee shall,
subject to the second preceding sentence, be obligated to perform and observe
all of the terms, covenants and conditions of this Lease, but shall have no
rights hereunder other than the right, to the extent given by law to tenants at
sufferance, to continue its occupancy and use of the Property. Nothing contained
in this Article XXIII shall constitute the consent, express or implied, of the
Lessor to the holding over of the Lessee after the expiration or earlier
termination of this Lease (unless the Property is conveyed to the Lessee), and
nothing contained herein shall be read or construed to relieve the Lessee of its
obligations to purchase or remarket the Property on the Expiration Date pursuant
to Article XX or Article XXII or as preventing the Lessor from maintaining a
suit for possession of the Property or exercising any other remedy available to
the Lessor at law or in equity or hereunder.
ARTICLE XXIV
24.1. Risk of Loss. The Lessee assumes all risks of loss arising from
any Casualty or Condemnation which arises or occurs prior to the Expiration Date
or while the Lessee is in possession of the Property and all liability for all
personal injuries and deaths and damages to
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property suffered by any Person or property on or in connection with the
Property which arises or occurs prior to the Expiration Date or while the Lessee
is in possession of the Property, except in each case to the extent any such
loss or liability is primarily caused by the gross negligence or willful
misconduct of a Lessor Party; provided, however, that the Lessee shall have no
obligation under this Section 24.1 on account of any such loss or liability
arising after the date hereof and prior to the Completion Date, except as
follows:
(i) The Lessee shall be liable to the Lessor under this
Section 24.1 for all such losses and liabilities within the Lessee's
control; as used in this Section 24.1, the term "within the Lessee's
control" shall mean caused by or arising from any failure by the Lessee
to comply with any of its obligations under the Operative Documents
(including its insurance obligations), any representation by the Lessee
in any of the Operative Documents not being true, any negligence or
willful misconduct of the Lessee, or any claim by any third-party
against the Lessor based upon the action or inaction by the Lessee,
subject to the following:
(A) if any such loss or liability is not related to
an inability or failure to complete construction of the
Property (or if such loss or liability is related to an
inability or failure to complete construction of the Property
but also arises out of or results from a Fully Indemnifiable
Event), or if such loss or liability arises out of or is
attributable to any Environmental Obligations, the Lessee's
obligations in this Section 24.1 shall not be subject to any
monetary limitation; and
(B) if such loss or liability is related to an
inability or failure to complete construction of the Property
and such loss or liability does not constitute or arise out of
a Fully Indemnifiable Event, the Lessee's monetary obligation
provided in this Section 24.1, together with all other
similarly limited amounts payable under the proviso to Section
9.1(a) of the Participation Agreement, the proviso to Section
9.3 of the Participation Agreement or clause (5)(i)(B) of
Section 13.1 or Section 13.10 of the Participation Agreement
and any similarly limited payment obligation of the Lessee in
connection with the return or sale of the Property under this
Lease or the Construction Agency Agreement shall not exceed
the maximum Residual Value Guarantee Amount.
(ii) If any Lessor Party incurs any such loss or liability for
which the Lessee is not liable pursuant to Section 24.1, the amount of
such loss or liability shall, if such Lessor Party shall so request by
a written notice to the Lessor, be capitalized pursuant to Section
3.7(e) of the Participation Agreement.
ARTICLE XXV
25.1. Subletting and Assignment. The Lessee may assign with recourse
this Lease or any of its rights or obligations hereunder in whole or in part to
any of its wholly-owned Subsidiaries, in which case the Lessee and the Guarantor
shall guarantee performance of the
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<PAGE>
obligations of such assignee under this Lease by a guaranty in form and
substance acceptable to the Lessor and the Required Participants. The Lessee
may, without the consent of the Lessor, sublease the Property or portion thereof
to any Person, provided, that no such sublease shall, in the opinion of the
Lessor, adversely affect any of the Lessor's interests, rights or remedies under
the Lease or the Lessor's title to the Property. No assignment, sublease or
other relinquishment of possession of the Property shall in any way discharge or
diminish any of the Lessee's obligations to the Lessor hereunder and the Lessee
shall remain directly and primarily liable under this Lease as to the Property,
or portion thereof, so assigned or sublet. Any sublease of the Property shall be
made subject to and subordinated to this Lease and to the rights of the Lessor
hereunder, and shall expressly provide for the surrender of the Property (or
portion thereof) after a Lease Event of Default hereunder. All such subleases
shall expressly provide for termination at or prior to the earlier of the
applicable Expiration Date or other date of termination of this Lease unless the
Lessee shall have purchased the Property pursuant to Article XX. No assignee or
sublessee shall be permitted to engage in any activities on the Property that
are substantially different from the use by the Lessee of the Property as an
office building without the prior written consent of the Lessor.
ARTICLE XXVI
26.1. Estoppel Certificates. At any time and from time to time upon not
less than twenty (20) days' prior request by the Lessor or the Lessee (the
"Requesting Party"), the other party (whichever party shall have received such
request, the "Certifying Party") shall furnish to the Requesting Party (but not
more than four times per year unless required to satisfy the requirements of any
sublessees and only to the extent that the required information has been
provided to the Certifying Party by the other party) a certificate signed by an
individual having the office of vice president or higher in the Certifying Party
certifying that this Lease is in full force and effect (or that this Lease is in
full force and effect as modified and setting forth the modifications); the
dates to which the Basic Rent and Supplemental Rent have been paid; to the best
knowledge of the signer of such certificate, whether or not the Requesting Party
is in default under any of its obligations hereunder (and, if so, the nature of
such alleged default); and such other matters under this Lease as the Requesting
Party may reasonably request. Any such certificate furnished pursuant to this
Article XXVI may be relied upon by the Requesting Party, and any existing or
prospective mortgagee, purchaser or lender, and any accountant or auditor, of,
from or to the Requesting Party (or any Affiliate thereof).
ARTICLE XXVII
27.1. Right to Inspect. During the Term, the Lessee shall upon
reasonable notice from the Lessor (except that no notice shall be required if a
Lease Event of Default has occurred and is continuing), permit the Lessor, the
Agent and their respective authorized representatives to inspect the Property
during normal business hours, provided that such inspections shall not
unreasonably interfere with the Lessee's business operations at the Property.
27.2. No Waiver. No failure by the Lessor or the Lessee to insist upon
the strict performance of any term hereof or to exercise any right, power or
remedy upon a default
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<PAGE>
hereunder, and no acceptance of full or partial payment of Rent during the
continuance of any such default, shall constitute a waiver of any such default
or of any such term. To the fullest extent permitted by law, no waiver of any
default shall affect or alter this Lease, and this Lease shall continue in full
force and effect with respect to any other then existing or subsequent default.
ARTICLE XXVIII
28.1. Acceptance of Surrender. No surrender to the Lessor of this Lease
or of all or any portion of the Property or of any part thereof or of any
interest therein shall be valid or effective unless agreed to and accepted in
writing by the Lessor and, prior to the payment or performance of all
obligations under the Participation Agreement and termination of the
Commitments, the Agent, and no act by the Lessor or the Agent or any
representative or agent of the Lessor or the Agent, other than a written
acceptance, shall constitute an acceptance of any such surrender.
ARTICLE XXIX
29.1. No Merger of Title. There shall be no merger of this Lease or of
the leasehold estate created hereby by reason of the fact that the same Person
may acquire, own or hold, directly or indirectly, in whole or in part, (a) this
Lease or the leasehold estate created hereby or any interest in this Lease or
such leasehold estate, or (b) any estate of others in the Property created by
any sublease permitted under this Lease, except as may expressly be stated in a
written instrument duly executed and delivered by the appropriate Person.
ARTICLE XXX
30.1. Notices. All notices, demands, requests, consents, approvals and
other communications hereunder shall be in writing and delivered (i) personally,
(ii) by a nationally recognized overnight courier service, (iii) by mail (by
registered or certified mail, return receipt requested, postage prepaid) or (iv)
by facsimile, addressed to the respective parties, as follows:
If to the Lessee:
Transport Corporation of America, Inc.
1769 Yankee Doodle Road
Eagan, Minnesota 55121-1618
Attention: President
Telephone: (612) 686-2504
Facsimile: (612) 686-2551
If to the Lessor:
ABN AMRO Leasing, Inc.
135 S. LaSalle Street, Suite 740
Chicago, Illinois 60603
Attention: Blake J. Lacher, Group Vice President
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<PAGE>
Telephone: (312) 904-6733
Facsimile: (312) 904-6217
If to the Agent:
ABN AMRO Bank N.V.
135 S. LaSalle Street
Suite 611
Chicago, Illinois 60674-9135
Attention: David J. Thomas,
Vice President
Telephone: (312) 904-2506
Facsimile: (312) 904-2849
with a copy to:
ABN AMRO NORTH AMERICA, INC.
1325 Avenue of the Americas
9th Floor
New York, New York, 10019
Attention: Linda Boardman
Telephone: (212) 314-1724
Facsimile: (212) 314-1712
or such additional parties and/or other address as such party may hereafter
designate (provided, however, in no event shall either party be obligated to
notify, in the aggregate, more than five (5) designees of the other party), and
shall be effective upon receipt or refusal thereof.
ARTICLE XXXI
31.1. Miscellaneous. Anything contained in this Lease to the contrary
notwithstanding, all claims against and liabilities of the Lessee or the Lessor
arising from events commencing prior to the expiration or earlier termination of
this Lease shall survive such expiration or earlier termination. If any term or
provision of this Lease or any application thereof shall be declared invalid or
unenforceable, the remainder of this Lease and any other application of such
term or provision shall not be affected thereby. If any right or option of the
Lessee provided in this Lease, including any right or option described in
Articles XV, XVI, XX, XXI or XXII, would, in the absence of the limitation
imposed by this sentence, be invalid or unenforceable as being in violation of
the rule against perpetuities or any other rule of law relating to the vesting
of an interest in or the suspension of the power of alienation of property, then
such right or option shall be exercisable only during the period which shall end
twenty-one (21) years after the date of death of the last survivor of the
descendants of Franklin D. Roosevelt, the former president of the United States,
Henry Ford, the deceased automobile manufacturer, and John D. Rockefeller, the
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<PAGE>
founder of the Standard Oil Company, known to be alive on the date of the
execution, acknowledgment and delivery of this Lease.
31.2. Amendments and Modifications. Subject to the requirements,
restrictions and conditions set forth in the Participation Agreement, neither
this Lease, any Lease Supplement nor any provision hereof may be amended,
waived, discharged or terminated except by an instrument in writing in
recordable form signed by the Lessor and the Lessee.
31.3. Successors and Assigns. All the terms and provisions of this
Lease shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
31.4. Headings and Table of Contents. The headings and table of
contents in this Lease are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof.
31.5. Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
31.6. GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES, 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 JURISDICTION IN WHICH THE PROPERTY IS LOCATED.
WITHOUT LIMITING THE FOREGOING, IN THE EVENT THAT THIS LEASE IS DEEMED TO
CONSTITUTE A FINANCING, WHICH IS THE INTENTION OF THE PARTIES, THE LAWS OF THE
STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, SHALL GOVERN
THE CREATION, TERMS AND PROVISIONS OF THE INDEBTEDNESS EVIDENCED HEREBY, BUT THE
LIEN CREATED HEREBY AND THE ENFORCEMENT OF SAID LIEN SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE JURISDICTION IN WHICH THE PROPERTY
IS LOCATED.
31.7. Submission to Jurisdiction. The Lessee hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Northern
District of Illinois and of any Illinois State court sitting in Cook County for
purposes of all legal proceedings arising out of or relating to the Operative
Documents or the transactions contemplated hereby. The Lessee irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
31.8. WAIVER OF JURY TRIAL. EACH OF THE LESSEE AND THE LESSOR HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
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<PAGE>
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE OPERATIVE DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
31.9. Limitations on Recourse. The parties hereto agree that the Lessor
shall have no personal liability whatsoever to the Lessee or its successors and
assigns for any claim based on or in respect of this Lease or any of the other
Operative Documents or arising in any way from the transactions contemplated
hereby or thereby; provided, however, that the Lessor shall be liable in its
individual capacity (a) for its own willful misconduct or gross negligence (or
negligence in the handling of funds), (b) for liabilities that may result from
the incorrectness of any representation or warranty expressly made by it in
Section 8.1 of the Participation Agreement or (c) for any Taxes based on or
measured by any fees, commission or compensation received by it for acting as
the Lessor as contemplated by the Operative Documents. It is understood and
agreed that, except as provided in the preceding proviso: (i) the Lessor shall
have no personal liability under any of the Operative Documents as a result of
acting pursuant to and consistent with any of the Operative Documents; (ii) all
obligations of the Lessor to the Lessee are solely nonrecourse obligations
except to the extent that it has received payment from others and are
enforceable solely against the Lessor's interest in the Property; and (iii) all
such personal liability of the Lessor is expressly waived and released as a
condition of, and as consideration for, the execution and delivery of the
Operative Documents by the Lessor.
31.10. Original Lease. The single executed original of this Lease
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 (the "Original Executed Counterpart"). To the extent that this Lease
constitutes chattel paper, as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction, no security interest in this
Lease may be created through the transfer or possession of any counterpart other
than the Original Executed Counterpart.
[SIGNATURE PAGE FOLLOWS]
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Lease (including
Mortgage) be duly executed and delivered as of the date first above written.
ABN AMRO LEASING, INC.,
an Illinois corporation, as Lessor
By:_______________________________
Name:_______________________________
Title:________________________________
TRANSPORT CORPORATION OF AMERICA,
INC.,
a Minnesota corporation, as Lessee
By:__________________________________
Name: Robert J. Meyers
----------------
Title: President
---------
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<PAGE>
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of April 9, 1999.
ABN AMRO BANK N.V., as Agent
By:_______________________________
Name:_____________________________
Title:_____________________________
By:________________________________
Name:______________________________
Title:_____________________________
-45-
EXHIBIT 11.1
Transport Corporation of America, Inc.
Computation of Earnings per Common Share
(In thousands, except share and per share amounts)
(unaudited)
<TABLE>
<CAPTION>
Three months ended Six months ended
June 30, June 30,
------------------------ ------------------------
1999 1998 1999 1998
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Net earnings $ 3,959 $ 2,214 $ 6,038 $ 3,514
========== ========== ========== ==========
Average number of common
shares outstanding 6,914,121 6,712,526 6,805,530 6,691,223
Average number of common shares outstanding,
non-detachable put 1,200,000 0 1,200,000 0
---------- ---------- ---------- ----------
Average number of common shares outstanding,
including non-detachable put 8,114,121 6,712,526 8,005,530 6,691,223
Dilutive effect of outstanding stock
options and warrants 25,320 73,854 34,406 85,212
Dilutive effect of non-detachable put option 495,641 0 464,618 0
---------- ---------- ---------- ----------
Average number of common and dilutive potential
common shares outstanding 8,635,082 6,786,380 8,504,554 6,776,435
========== ========== ========== ==========
Basic earnings per share $ 0.49 $ 0.33 $ 0.75 $ 0.53
========== ========== ========== ==========
Diluted earnings per share $ 0.46 $ 0.33 $ 0.71 $ 0.52
========== ========== ========== ==========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 1,576,000
<SECURITIES> 0
<RECEIVABLES> 33,108,000
<ALLOWANCES> 0
<INVENTORY> 1,463,000
<CURRENT-ASSETS> 47,530,000
<PP&E> 245,754,000
<DEPRECIATION> 51,164,000
<TOTAL-ASSETS> 268,472,000
<CURRENT-LIABILITIES> 40,045,000
<BONDS> 104,149,000
0
0
<COMMON> 70,000
<OTHER-SE> 71,844,000
<TOTAL-LIABILITY-AND-EQUITY> 268,472,000
<SALES> 0
<TOTAL-REVENUES> 142,179,000
<CGS> 0
<TOTAL-COSTS> 128,798,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,498,000
<INCOME-PRETAX> 9,910,000
<INCOME-TAX> 3,872,000
<INCOME-CONTINUING> 6,038,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,038,000
<EPS-BASIC> 0.75
<EPS-DILUTED> 0.71
</TABLE>
