UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 27, 1997
Commission File No.: 0-22192
PERFORMANCE FOOD GROUP COMPANY
(Exact Name of Registrant as Specified in Its Charter)
Tennessee 54-0402940
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
6800 Paragon Place, Suite 500
Richmond, Virginia 23230
(Address of Principal Executive (Zip Code)
Offices)
Registrant's Telephone Number, Including Area Code (804) 285-7340
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.
X Yes No
As of November 5, 1997, 12,482,860 shares of the Registrant's Common Stock
were outstanding.
Independent Accountants' Review Report
The Board of Directors and Shareholders
Performance Food Group Company:
We have reviewed the accompanying condensed consolidated balance sheet of
Performance Food Group Company and subsidiaries as of September 27, 1997,
and the related condensed consolidated statements of earnings for the three-
month and nine-month periods ended September 27, 1997 and September 28,
1996, and the condensed consolidated statements of cash flows for the nine-
month periods ended September 27, 1997 and September 28, 1996. These
condensed consolidated financial statements are the responsibility of the
Company's management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted
in accordance with generally accepted auditing standards, the objective of
which is the expression of an opinion regarding the financial statements taken
as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the condensed consolidated financial statements referred to above
for them to be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of Performance Food Group Company
and subsidiaries as of December 28, 1996, and the related consolidated
statements of earnings, shareholders' equity and cash flows for the year then
ended (not presented herein); and in our report dated February 7, 1997, we
expressed an unqualified opinion on those consolidated financial statements.In
our opinion, the information set forth in the accompanying condensed
consolidated balance sheet as of December 28, 1996 is fairly stated, in all
material respects, in relation to the consolidated balance sheet from which it
has been derived.
KPMG PEAT MARWICK LLP
Richmond, Virginia
October 27, 1997
<PAGE>
<TABLE>
PART I - FINANCIAL INFORMATION
Item 1.
Financial Statements.
PERFORMANCE FOOD GROUP COMPANY AND SUBSIDIARIES
Condensed Consolidated Balance Sheets
(In thousands)
<CAPTION>
September 27, December 28,
1997 1996
(Unaudited)
<S> <C> <C>
Assets
Current assets:
Cash $ 4,896 $ 5,557
Trade accounts and notes receivable, net 68,550 55,689
Inventories 68,212 48,005
Other current assets 4,331 4,176
Total current assets 145,989 113,427
Property, plant and equipment, net 66,499 55,697
Intangible assets, net 41,283 12,751
Other assets 1,229 1,022
Total assets $255,000 $182,897
Liabilities and Shareholders' Equity
Current liabilities:
Outstanding checks in excess of deposits $ 16,576 $ 12,895
Current installments of long-term debt 665 650
Accounts payable 61,561 44,494
Other current liabilities 17,880 12,421
Total current liabilities 96,682 70,460
Long-term debt, excluding current installments 3,109 3,604
Note payable to bank 30,395 3,621
Deferred income taxes 4,077 4,077
Total liabilities 134,263 81,762
Shareholders' equity 120,737 101,135
Total liabilities and shareholders' equity $255,000 $182,897
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
PERFORMANCE FOOD GROUP COMPANY AND SUBSIDIARIES
Condensed Consolidated Statements of Earnings (Unaudited)
(In thousands, except per share amounts)
<TABLE>
Three Months Ended Nine Months Endeds
Sept. 27, Sept. 28, Sept. 27, Sept. 28,
<CAPTION> 1997 1996 1997 1996
<S> <C> <C> <C> <C>
Net sales $336,349 $202,401 $897,651 $567,911
Cost of goods sold 294,334 173,896 784,641 487,392
Gross profit 42,015 28,505 113,010 80,519
Operating expenses 35,486 23,266 95,951 66,892
Operating profit 6,529 5,239 17,059 13,627
Other income (expense):
Interest expense (514) (82) (1,385) (516)
Other, net 84 59 268 126
Other expense, net (430) (23) (1,117) (390)
Earnings before income taxes 6,099 5,216 15,942 13,237
Income tax expense 2,353 2,057 6,153 5,227
Net earnings $3,746 $3,159 $9,789 $8,010
Net earnings per common share $ 0.30 $ 0.26 $ 0.79 $ 0.69
Weighted average common shares
and common share equivalents
outstanding 12,673 12,083 12,344 11,567
</TABLE>
See accompanying notes to unaudited condensed consolidated financial
statements.
PERFORMANCE FOOD GROUP COMPANY AND SUBSIDIARIES
Condensed Consolidated Statements of Cash Flows (Unaudited)
(In thousands)
<TABLE>
Nine Months Ended
Sept. 27, Sept. 28,
1997 1996
<CAPTION>
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 9,789 $ 8,010
Adjustments to reconcile net earnings to
net cash provided by operating activities:
Depreciation and amortization 5,841 4,141
ESOP contributions applied to principal of ESOP debt 349 303
Gain on disposal of property, plant and equipment (46) (49)
Gain on insurance settlement (1,300) - -
Loss on writedown of leasehold improvements 1,287 - -
Changes in operating assets and liabilities, net of
effects of companies purchased 4,287 (6,173)
Net cash provided by operating activities 20,207 6,232
Cash flows from investing activities:
Purchases of property, plant and equipment (6,167) (7,301)
Proceeds from sale of property, plant and equipment 133 128
Net cash paid for acquisitions (46,337) - -
Net proceeds from insurance settlement 4,200 - -
Increase in intangibles and other assets (155) (320)
Net cash used by investing activities (48,326) (7,493)
Cash flows from financing activities:
Increase (decrease) in outstanding checks in
excess of deposits 3,180 (110)
Net borrowings (payments) on note payable to bank 23,294 (2,517)
Principal payments on long-term debt (480) (30,527)
Proceeds from issuance of common stock - 33,329
Stock option, incentive and employee stock
purchase plans 1,464 888
Net cash provided by financing activities 27,458 1,063
Net decrease in cash (661) (198)
Cash at beginning of period 5,557 4,235
Cash at end of period $ 4,896 $ 4,037
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
<PAGE>
PERFORMANCE FOOD GROUP COMPANY AND
SUBSIDIARIES
Notes to Unaudited Condensed Consolidated Financial Statements
September 27, 1997 and September 28, 1996
1. Basis of Presentation
The accompanying condensed consolidated financial statements of
Performance Food Group Company and subsidiaries (the "Company") are
unaudited, with the exception of the December 28, 1996 condensed
consolidated balance sheet, which was derived from the audited
consolidated balance sheet in the Company's latest annual report on Form
10-K. The unaudited condensed consolidated financial statements have
been prepared in accordance with generally accepted accounting principles
for interim financial reporting, and in accordance with Rule 10-01 of
Regulation S-X.
In the opinion of management, the unaudited condensed
consolidated financial statements contained in this report reflect all
adjustments, consisting of only normal recurring accruals, which are
necessary for a fair presentation of the financial position and the results of
operations for the interim periods presented. The results of operations for
any interim period are not necessarily indicative of results for the full year.
These unaudited condensed consolidated financial statements, note
disclosures and other information should be read in conjunction with the
consolidated financial statements and notes thereto included in the
Company's latest annual report on Form 10-K.
2. Business Combinations
On December 30, 1996, the Company completed the acquisition of
certain net assets of McLane Foodservice-Temple, Inc. ("McLane
Foodservice"), a wholly-owned subsidiary of McLane Company, Inc.,
based in Temple, Texas. McLane Foodservice had 1996 net sales of
approximately $180 million. The acquired company operates as
Performance Food Group of Texas, LP ("PFG of Texas"), an indirect
wholly-owned subsidiary of the Company. PFG of Texas operates
distribution centers in Temple and Victoria, Texas and provides products
and services to traditional foodservice customers as well as multi-unit
chain restaurants and vending customers. The purchase price of
approximately $30 million, which is subject to certain post-closing
adjustments, was financed with proceeds from an existing credit facility.
Simultaneous with the closing, the Company also purchased the
distribution center located in Victoria, Texas from an independent third
party for approximately $1.5 million. The condensed consolidated
statements of earnings and cash flows reflect the results of PFG of Texas
from the date of acquisition through September 27, 1997.
On June 30, 1997, the Company completed the acquisition of all of
the outstanding capital stock of W. J. Powell Company, Inc. ("Powell"), a
foodservice distributor based in Thomasville, Georgia. Powell, with
distribution centers in Thomasville, Georgia and Dothan, Alabama, had
1996 net sales of approximately $44 million consisting primarily of sales
to traditional foodservice customers. The purchase price of approximately
$20 million, plus the assumption of approximately $3 million of debt, was
financed with proceeds from an existing credit facility and the issuance of
approximately 320,000 shares of the Company's common stock. The
aggregate consideration payable to the former Powell shareholders is
subject to increase in certain circumstances. The condensed consolidated
statements of earnings and cash flows reflect the results of Powell from the
date of acquisition thru September 27, 1997.
Additionally, the Company has completed the acquisition of
certain assets of two small foodservice distributors which are expected to
generate annual sales of approximately $20 million. The operations of
these distributors have been combined with the operations of certain of the
Company's existing subsidiaries.
These acquisitions have been accounted for using the purchase
method and, accordingly, the acquired assets and liabilities have been
recorded at their estimated fair values at the date of acquisition. The
excess of the purchase price over the fair value of tangible net assets
acquired in these acquisitions was approximately $29.4 million and is
being amortized on a straight-line basis over estimated lives ranging from
5 to 40 years, based on the nature of the intangible asset. The cost
allocated to non-competition agreements is being amortized over their
contractual lives, which are generally 5 years. Cost allocated to customer
lists is being amortized over 15 years. The goodwill component of the
excess purchase price is being amortized over 40 years, which reflects
management's best estimate of the appropriate period over which to
amortize goodwill associated with these acquisitions.
3. Shareholders' Equity
In March 1996, the Company completed a secondary offering of
2,916,824 shares of common stock, of which the Company sold 2,255,455
shares with the remaining shares sold by selling shareholders. Net
proceeds of the offering were approximately $33.3 million, which were
used to repay a $30.0 million term loan and approximately $3.3 million
outstanding under the Company's credit facility.
4. Supplemental Cash Flow Information
Nine Months Ended
(amounts in thousands) Sept. 27, Sept. 28,
1997 1996
Cash paid during the period for:
Interest $ 1,233 $ 705
Income taxes $ 4,351 $ 4,151
Effects of purchase of companies:
Fair value of assets acquired,
inclusive of intangibles
of $29,354 $ 68,962 -
Liabilities assumed (14,625) -
Stock issued for acquisition (8,000) -
Net cash paid for acquisitions $ 46,337 $ -
5. Subsequent Event
On October 31, 1997, the Company acquired all of the outstanding
capital stock of AFI Food Service Distributors, Inc. ("AFI"), a foodservice
distributor based in Elizabeth, New Jersey, through the merger of AFI with
a newly formed, wholly owned subsidiary of the Company. AFI had 1996
net sales of approximately $69 million, consisting primarily of sales to
traditional foodservice customers. The purchase price of approximately
$16 million was financed by issuing 340,000 shares of the Company's
common stock and promissory notes, due January 2, 1998, of
approximately $7.3 million. In addition, the Company assumed
approximately $8.8 million of debt that was financed with proceeds from
an existing credit facility. The aggregate consideration payable to the
former AFI shareholders is subject to increase in certain circumstances.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.
General
The Company derives its revenue primarily from the sale of food
and food-related products to the foodservice, or "away-from home eating,"
industry. The foodservice industry consists of two major customer types:
"traditional" foodservice customers, consisting of independent restaurants,
hotels, cafeterias, schools, healthcare facilities and other institutional
customers, and "multi-unit chain" customers, consisting of regional and
national quick-service restaurants and casual dining restaurants. Products
and services provided to the Company's traditional and multi-unit chain
customers are supported by identical physical facilities, vehicles,
equipment and personnel. The principal components of the Company's
expenses include cost of goods sold, which represents the amount paid to
manufacturers and growers for products sold, and operating expenses,
which include primarily labor-related expenses, delivery costs and
occupancy expenses.
Results of Operations
The following table sets forth, for the periods indicated, the components of
the condensed consolidated statements of earnings expressed as a
percentage of net sales:
Three Months Ended Nine Months Ended
Sept. 27, Sept. 28, Sept. 27, Sept. 28,
1997 1996 1997 1996
Net sales 100.0 % 100.0 % 100.0 % 100.0 %
Cost of goods sold 87.5 85.9 87.4 85.8
Gross profit 12.5 14.1 12.6 14.2
Operating expenses 10.6 11.5 10.7 11.8
Operating profit 1.9 2.6 1.9 2.4
Other expense, net 0.1 0.0 0.1 0.1
Earnings before income taxes 1.8 2.6 1.8 2.3
Income tax expense 0.7 1.0 0.7 0.9
Net earnings 1.1 % 1.6 % 1.1 % 1.4 %
Comparison of Periods Ended September 27, 1997 to September 28, 1996.
Net sales increased 66.2% to $336.3 million for the three months
ended September 27, 1997 (the "1997 quarter") from $202.4 million for
the three months ended September 28, 1996 (the "1996 quarter"). Net
sales increased 58.1% to $897.7 million for the nine months ended
September 27, 1997 (the "1997 period") from $567.9 million for the nine
months ended September 28, 1996 (the "1996 period"). Net sales in the
Company's existing operations increased 22% over the 1996 quarter while
acquisitions contributed an additional 44% to the Company's total sales
growth. Inflation amounted to less than 1.0% for the 1997 quarter and
approximately 1.0% for the 1997 period.
Gross profit increased 47.4% to $42.0 million in the 1997 quarter
from $28.5 million in the 1996 quarter. Gross profit increased 40.4% to
$113.0 million in the 1997 period from $80.5 million in the 1996 period.
Gross profit margin decreased to 12.5% in the 1997 quarter compared to
14.1% in the 1996 quarter and to 12.6% for the 1997 period from 14.2% in
the 1996 period. The decline in gross profit margin was due primarily to
the following two factors. Sales increased during 1997 to certain of the
Company's large multi-unit chain customers which generally are higher-
volume, lower gross-margin accounts but also allow for more efficient
deliveries and use of capital, resulting in lower operating expenses. Gross
profit margins also declined as a result of the acquisition of PFG of Texas,
whose margins are currently lower than those in many of the Company's
other subsidiaries, due in part to their customer mix which includes a
greater concentration of multi-unit chain customers.
Operating expenses increased 52.5% to $35.5 million in the 1997
quarter compared with $23.3 million in the 1996 quarter. Operating
expenses increased 43.4% to $96.0 million in the 1997 period from $66.9
million in the 1996 period. As a percentage of net sales, operating
expenses declined to 10.6% in the 1997 quarter from 11.5% in the 1996
quarter and to 10.7% in the 1997 period from 11.8% in the 1996 period.
The decrease in operating expenses as a percent of net sales primarily
reflects better use of the Company's facilities at the increased level of sales
and the continued shift in mix of sales to certain of the Company's rapidly
growing multi-unit chain customers discussed above. These
improvements in utilization were offset in part by increased labor costs
including recruiting and training additional personnel, primarily in the
transportation area which is an integral part of the Company's distribution
service. The Company expects these increased labor costs to continue for
the next several quarters. Additionally, the 1996 period was negatively
impacted by increased costs related to the severe weather experienced in
the East and Midwest during the first quarter of 1996. The Company
leased a 75,000 square foot distribution center in Belcamp, Maryland to
service the continued growth of certain of the Company's multi-unit chain
customers, which became operational in February 1997, and completed
construction of a 75,000 square foot distribution center in Dallas, Texas
which became operational in February 1996. The Company incurred
certain start-up expenses for these facilities, the impacts of which are
approximately comparable. Additionally, the Company intends to expand
certain of its distribution centers that support its rapidly growing multi-
unit chain customers during 1998.
Operating profit increased 24.6% to $6.5 million in the 1997
quarter from $5.2 million in the 1996 quarter. Additionally, operating
profit increased 25.2% to $17.1 million in the 1997 period from $13.6
million in the 1996 period. Operating profit margin declined to 1.9% for
the 1997 quarter from 2.6% for the 1996 quarter and to 1.9% for the 1997
period from 2.4% for the 1996 period.
Other expense increased to $430,000 in the 1997 quarter from
$23,000 in the 1996 quarter and to $1.1 million in the 1997 period from
$390,000 in the 1996 period. Other expense includes interest expense,
which increased to $514,000 in the 1997 quarter from $82,000 in the 1996
quarter. Interest expense increased to $1.4 million in the 1997 period from
$516,000 in the 1996 period. The increase in interest expense is due to
higher debt levels in the 1997 quarter and period as a result of the
Company's various acquisitions. Other expense during the 1997 period
also includes a $1.3 million gain from insurance proceeds related to
covered assets at one of the Company's processing and distribution
facilities which offset a $1.3 million writedown of certain leasehold
improvements associated with the termination of the lease on one of the
Company's distribution facilities.
Income tax expense increased to $2.4 million in the 1997 quarter
from $2.1 million in the 1996 quarter and to $6.2 million in the 1997
period from $5.2 million in the 1996 period, as a result of higher pre-tax
earnings. As a percentage of earnings before income taxes, the provision
for income taxes was 38.6% and 39.5% for the 1997 and 1996 quarters
and periods, respectively.
Net earnings increased 18.6% to $3.7 million in the 1997 quarter
compared to $3.2 million in the 1996 quarter. Net earnings increased
22.2% to $9.8 million in the 1997 period from $8.0 million in the 1997
period. As a percentage of net sales, net earnings decreased to 1.1% in the
1997 quarter versus 1.6% in the 1996 quarter and to 1.1% in the 1997
period from 1.4% in the 1996 period.
Liquidity and Capital Resources
The Company has historically financed its operations and growth
primarily with cash flow from operations, borrowings under its credit
facility, operating leases, normal trade credit terms and the sale of the
Company's common stock. Despite the Company's large sales volume,
working capital needs are minimized because the Company's investment in
inventory is financed principally with accounts payable.
Cash provided by operating activities was $20.2 million and $6.2
million for the 1997 and 1996 periods, respectively. The increase in cash
provided by operating activities resulted primarily from higher net
earnings and decreased levels of trade receivables offset in part by
increased levels of inventories net of trade payables.
Cash used by investing activities was $48.3 million and $7.5
million for the 1997 and 1996 periods, respectively. Investing activities
consist primarily of additions to and disposals of property, plant and
equipment and the acquisition of businesses. The Company's total capital
expenditures for the 1997 period were $6.2 million including
approximately $1.2 million for expansion of the distribution center in
Houma, Louisiana. The Company anticipates that its total capital
expenditures, other than for acquisitions, for fiscal 1997 will be
approximately $8 million. Investing activities during the 1997 period also
included $46.3 million for the acquisition of companies, net of cash on
hand at those companies, and $4.2 million from insurance proceeds related
to covered losses associated with one of the Company's processing and
distribution facilities. Acquisitions during the period, net of cash on hand
at the acquired companies, included approximately $32.1 million for PFG
of Texas and $11.6 million for Powell.
Cash flows from financing activities was $27.5 million and $1.1
million for the 1997 and 1996 periods, respectively. Cash flows in the
1997 period included net borrowings on a revolving credit facility ("Credit
Facility") of $23.3 million. The Credit Facility was used to finance the
$46.3 million of acquisitions discussed above, net of $23.0 million of
repayments as a result of the reduced working capital needs. In March
1996, the Company completed a secondary offering of 2.9 million shares
of common stock, of which the Company sold 2.3 million shares with the
remainder sold by selling shareholders. The net proceeds to the Company
from the offering were approximately $33.3 million which was used to
repay a $30.0 million term loan and to repay approximately $3.3 million
outstanding on the Company's line of credit.
The Company has $50.0 million of borrowing capacity under its
Credit Facility with a commercial bank which expires in July 1999.
Approximately $30.4 million was outstanding under the Credit Facility at
September 27, 1997. The Credit Facility also supports up to $5.0 million
of letters of credit. At September 27, 1997, the Company was
contingently liable for $2.2 million of outstanding letters of credit which
reduce amounts available under the Credit Facility. At September 27,
1997, the Company had $17.4 million available under the Credit Facility.
The Credit Facility bears interest at LIBOR plus a spread over LIBOR,
which varies based on the ratio of funded debt to total capital. At
September 27, 1997, the Credit Facility bore interest at 5.67%.
Additionally, the Credit Facility requires the maintenance of certain
financial ratios, as defined, regarding debt to tangible net worth, cash flow
coverage and current assets to current liabilities. Subsequent to quarter
end, the Company borrowed approximately $8.8 million under the Credit
Facility to refinance debt assumed in the acquisition of AFI on October 31,
1997 and obtained an additional $7.3 million of letters of credit to secure
amounts owed under promissory notes to the former AFI shareholders as
part of the purchase price.
On September 12, 1997, the Company completed a $42.0 million
operating lease agreement to construct new distribution centers planned to
become operational in 1998. Under this agreement, the lessor owns the
distribution centers, incurs the related debt to construct the facilities and
thereafter leases each facility to the Company. The Company has entered
into a commitment to lease each facility for a period beginning upon the
completion of each property and ending on September 12, 2002, including
extensions. Upon the expiration of each lease, the Company has the
option to purchase the facility at its original cost. If the Company does not
exercise its purchase options, the Company has significant residual value
guarantees of each property. The Company expects the fair value of the
properties included in this agreement to eliminate or substantially reduce
the Company's exposure under the residual value guarantee. At
September 27, 1997, construction has commenced on one facility with
expenditures to date of approximately $610,000. Total expenditures for
this facility are anticipated to be approximately $13 million.
The Company believes that cash flows from operations,
borrowings under its credit facility and operating leases will be sufficient
to finance its operations and anticipated growth for the foreseeable future.
Business Combinations
On December 30, 1996, the Company acquired certain net assets of
McLane Foodservice, a wholly-owned subsidiary of McLane Company,
Inc., based in Temple, Texas. McLane Foodservice had 1996 net sales of
approximately $180 million. The acquired company operates as PFG of
Texas, an indirect wholly-owned subsidiary of the Company. PFG of
Texas operates distribution centers in Temple and Victoria, Texas and
provides products and services to traditional foodservice customers as well
as multi-unit chain restaurants and vending customers. The purchase price
of approximately $30 million, which is subject to certain post-closing
adjustments, was financed with proceeds from an existing credit facility.
Simultaneous with the closing, the Company also purchased the
distribution center located in Victoria, Texas from an independent third
party for approximately $1.5 million. The condensed consolidated
statements of earnings and cash flows reflect the results of PFG of Texas
from the date of acquisition through September 27, 1997.
On June 30, 1997, the Company acquired all of the outstanding
capital stock of Powell, based in Thomasville, Georgia. Powell, with
distribution centers in Thomasville, Georgia and Dothan, Alabama, had
1996 net sales of approximately $44 million consisting primarily of sales
to traditional foodservice customers. The purchase price of approximately
$20 million, plus the assumption of approximately $3 million of debt, was
financed with proceeds from an existing credit facility and the issuance of
approximately 320,000 shares of the Company's common stock. The
aggregate consideration payable to the former Powell shareholders is
subject to increase in certain circumstances. The condensed consolidated
statement of earnings and cash flows reflect the results of Powell from the
date of acquisition thru September 27, 1997.
Additionally, the Company has completed the acquisition of certain assets of
two small foodservice distributors which are expected to generate annual
sales of approximately $20 million. The operations of these distributors
have been combined with the operations of certain of the Company's existing
subsidiaries.
These acquisitions have been accounted for using the purchase method and,
accordingly, the acquired assets and liabilities have been recorded at their
estimated fair values at the date of acquisition. The excess of the purchase
price over the fair value of tangible net assets acquired was approximately
$29.4 million and is being amortized on a straight-line basis over estimated
lives ranging from 5 to 40 years.
Subsequent to quarter end, the Company acquired all of the outstanding
capital stock of AFI, based in Elizabeth, New Jersey. AFI had 1996 net
sales of approximately $69 million, consisting primarily of sales to
traditional foodservice customers. The purchase price of approximately
$16 million was financed by issuing 340,000 shares of the Company's common
stock and promissory notes, due January 2, 1998, of approximately
$7.3 million. The aggregate consideration payable to the former AFI
shareholders is subject to increase in certain circumstances. In addition,
the Company assumed approximately $8.8 million of debt in the transaction.
Recently Issued Accounting Pronouncements
During the 1997 period the Financial Accounting Standards Board
issued Statement of Financial Accounting Standards (SFAS) No. 128,
Earnings Per Share, and SFAS No. 129, Disclosure of Information About
Capital Structure, which are effective for periods ending after December
15, 1997 and issued SFAS No. 130, Reporting Comprehensive Income,
and SFAS No. 131, Disclosures About Segments of an Enterprise and
Related Information, which are effective for periods beginning after
December 15, 1997. The impact of these accounting pronouncements is
not expected to have a material impact on the Company's financial
statements.
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders.
No matters were submitted to a vote of security holders
during the quarter ended September 27, 1997.
Item 6. Exhibits and Reports on Form 8-K.
(a.) Exhibits:
10.32 Amendment No. 1 to Revolving Credit
Agreement dated as of August 28, 1997 by and
among Performance Food Group Company and
First Union National Bank.
10.33 Participation Agreement dated as of August
29, 1997 among Performance Food Group
Company, First Security Bank, National
Association and First Union National Bank (as
agent for the Lenders and Holders).
10.34 Lease Agreement dated as of August 29,
1997 between First Security Bank, National
Association and Performance Food Group
Company.
15 Letter regarding unaudited financial
information from KPMG Peat Marwick LLP.
27 Financial Data Schedule (SEC only)
(b.) No reports on Form 8-K were filed during the
quarter ended September 27, 1997.
Signature
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.
PERFORMANCE FOOD GROUP COMPANY
(Registrant)
By: /s/ Roger L. Boeve
Roger L. Boeve
Executive Vice President &
Chief Financial Officer
Date: November 10, 1997
<PAGE>
AMENDMENT NO. I
TO REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. I TO REVOLVING CREDIT
AGREEMENT dated as of August 28,1997 (the "Amendment") is by and
among PERFORMANCE FOOD GROUP COMPANY, a Tennessee
corporation, whose mailing address is 6800 Paragon Place, Suite 500,
Richmond, Virginia 23230 (the "Borrower ") and FIRST UNION NATIONAL
BANK (a successor in interest to First Union National Bank of Virginia), a
national banking association ("First Union"), whose mailing address is P. 0.
Box 26944, Richmond, Virginia 23261 (together with its successors and assigns
in its capacity as a lender under this Amendment, a "Lender," together with its
successors and permitted assigns in its capacity as agent for the Lenders under
this Amendment, the "Administrative Agent"). This Amendment amends the
Revolving Credit Agreement dated as of July 8, 1996 (as such may have been
previously amended, modified, supplemented, restated and/or replaced from
time to time, the "Original Revolving Credit Agreement") between the
Borrower and First Union, in its capacities as a Lender and the Administrative
Agent. Capitalized terms used but not otherwise defined in this Amendment
shall have the meanings set forth in the Original Revolving Credit Agreement.
WITNESSETH
WHEREAS, the parties to this Amendment desire to (a) amend (i) the
definitions of "Cash Flow Coverage Ratio" and "Funded Indebtedness", (ii) the
financial covenant regarding the Debt to Tangible Net Worth ratio and (iii)
Section 8. 1 (1) and (b) add definitions of "ELLF", "ELLF Participation
Agreement", "ELLF Rent" and "Fall 1997 PFG/FU ELLF", in each case to
add provisions regarding synthetic lease facilities;
WHEREAS, the parties to this Amendment further desire to correct an
error in the Original Revolving Credit Agreement by adding definitions of
"Capital Lease" and "Interest Expense";
NOW, THEREFORE, IN CONSIDERATION of these premises and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1 . The definition of "Cash Flow Coverage Ratio" is deleted in its
entirety and replaced by the following:
"1.8 "Cash Flow Coverage Ratio" means at any date the sum
of EBITDA plus ELLF Rent (including without limitation ELLF Rent
payable in accordance with the Fall 1997 PFG/FU ELLF) divided by
the sum of (i) Interest Expense, (ii) CMLTD, (iii) ELLF Rent
(including without limitation ELLF Rent payable in accordance with the
Fall 1997 PFG/FU ELLF) and (iv) Unfinanced Capital Expenditures
(excluding any such Unfinanced Capital Expenditures expended with
regard to any property subject to any ELLF)."
2. The definition of "Funded Indebtedness" is deleted in its entirety and
replaced by the following:
1.23 "Funded Indebtedness" means at any date all
indebtedness of the Borrower and its Consolidated Subsidiaries
determined in accordance with GAAP on a consolidated basis
which by its terms (i) matures more than one year after the date
of its inception, including any payments required to be made on
such indebtedness within one year, and (ii) any such indebtedness
maturing within one year from such date which is renewable or
extendible at the option of any obligor to a date more than one
year from such date provided, notwithstanding the foregoing,
such indebtedness shall not include any convertible subordinated
indebtedness (determined in accordance with GAAP applied on a
consistent basis) of the Borrower or any of its Consolidated
Subsidiaries."
3. The following definitions are added after the definition of
"Unfinanced Capital Expenditures":
"1.50 "Capital Lease" means, as applied to any Person,
any lease of any property (whether real, personal or mixed) by
that Person as lessee which, in accordance with GAAP applied on
a consistent basis, is or should be accounted for as a capital lease
on the balance sheet of that Person.
1.51 "ELLF" means, at any date and as applied to the
Borrower and its Consolidated Subsidiaries, any synthetic lease,
end loaded lease financing, tax retention operating lease, off-
balance sheet loan or similar off-balance sheet financing product
to which such Person is a party, where such transaction is
considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP applied
on a consistent basis.
1.52 "ELLF Participation Agreement" means the
Participation Agreement dated as of August 29, 1997 (as
amended, modified, supplemented, restated and/or replaced from
time to time) among the Borrower, First Security Bank, National
Association, not individually, except as expressly stated therein,
but solely as the Owner Trustee under the PFG Real Estate Trust
1997-1, the various banks and other lending institutions which are
parties thereto from time to time as lenders, the various banks
and other lending institutions which are parties thereto from time
to time as holders of certificates issued with respect to the PFG
Real Estate Trust 1997-1 and First Union National Bank, as the
agent for such lenders and holders as referenced in such
Participation Agreement.
1.53 "ELLF Rent" means, at any date and as applied to
the Borrower and its Consolidated Subsidiaries, any obligation to
pay (whether such obligation is stated to be a rent obligation or
some other form of payment obligation) any principal, interest,
equity reimbursement and/or any yield or other return on equity
under any ELLF, in each case during the prior 12 month's period
(or during such shorter period that would be applicable under
Section 4.14).
1.54 "Fall 1997 PFG/FU ELLF" means the transactions evidenced by (a) the
ELLF Participation Agreement and (b) the Operative Agreements
(as such term is defined in the ELLF Participation Agreement).
1.55 "Interest Expense" means for the prior 12 month's period (or during
such shorter period that would be applicable under Section 4.14) with
respect to the Borrower and its Consolidated Subsidiaries all interest
expense, including without limitation the amortization of debt discount and
premium and the interest component under Capital Leases, in each case
determined in accordance with GAAP applied on a consistent basis."
4. Section 4.13 is amended by adding the following as an
additional sentence: "To the extent the Borrower and/or
any of its Consolidated Subsidiaries
(a) engages in any ELLF, then the payment obligations of
such Person shall be included in the computation of Debt for
purposes of this Section 4.13 (excluding, however, all such
payment obligations payable in accordance with the 1997
PFG/FU ELLF) or (b) becomes an obligor with respect to any
convertible subordinated indebtedness (determined in accordance
with GAAP applied on a consistent basis), then such convertible
subordinated indebtedness shall be excluded from the computation
of Debt for purposes of this Section 4.13. Notwithstanding the
foregoing, all such convertible subordinated indebtedness as
referenced in the previous sentence (a) shall be subordinated on
terms and conditions that are acceptable to the Lenders and the
Administrative Agent in their reasonable discretion and (b) shall
be issued, in the aggregate on a consolidated basis with respect to
the Borrower and its Consolidated Subsidiaries, in an original
principal amount not to exceed $125,000,000. In addition, no
such convertible subordinated indebtedness shall permit the
payment of principal thereon prior to (w) the repayment in full of
all amounts owing at any time under (i) this Agreement and the
promissory notes issued in connection with this Agreement and
(ii) the Fall 1997 PFG/FU ELLF and the Operative Agreements
(as defined in the ELLF Participation Agreement) and (x) the
expiration or earlier termination of (i) this Agreement, the credit
facility evidenced by this Agreement and any replacement credit
facility provided by the Lenders or their successors or assigns and
(ii) the Fall 1997 PFG/FU ELLF and the Operative Agreements
(as defined in the ELLF Participation Agreement).
Notwithstanding the foregoing, the Borrower and/or any of its
Consolidated Subsidiaries shall have the right to redeem any such
convertible subordinated indebtedness prior to the original stated
maturity date thereof to the extent (but only to the extent) (y) the
market price of the Borrower's common stock exceeds the
conversion price at which such convertible subordinated
indebtedness is convertible into common stock of the Borrower
and (z) immediately before the effective date of such redemption
and immediately after the effective date of such redemption, the
Borrower shall be in compliance with all covenants under this
Agreement and no Event of Default or event or occurrence which
with the giving of notice and/or the passage of time (or both)
shall have occurred and be continuing."
5. Section 8. 1 (1) is deleted in its entirety and replaced by
the following:
(1) The suspension by the Borrower of the operation of its present business;
the admission in writing by the Borrower of its inability to pay
its debts as they mature;the permitting of a receiver or trustee to be
appointed for all or substantially all of its assets and, if appointed
without its consent, the failure to cause such receiver or trustee to be
discharged within 60 days; the instituting by the Borrower of proceedings
under any law, state or federal, relating to bankruptcy, insolvency, or any
reorganization or arrangement for the relief of debtors or, if any such
proceedings are instituted against it, the failure to cause such
proceedings to be dismissed or stayed within 60 days."
6. The Borrower hereby represents and warrants to the Lender and the
Administrative Agent that (a) after giving effect to this Amendment, no
Event of Default or event which with the giving of notice, the passage
of time and/or both would constitute an Event of Default has occurred
and is continuing, (b) the Borrower has the corporate power and
authority to execute and deliver this Amendment and to perform its
obligations hereunder and has taken all necessary corporate action to
authorize the execution, delivery and performance by such party of this
Amendment and (c) the Borrower has duly executed and delivered this
Amendment and this Amendment constitutes its legal, valid and binding
obligation enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the rights of creditors generally or by general
principles of equity.
7. The Borrower hereby restates its representations and warranties contained
in Section 3 of the Original Revolving Credit Agreement as though fully set
forth herein, except to the extent such representations and warranties
expressly relate to an earlier date.
8. Except as modified by this Amendment, all of the terms and provisions of
the Original Revolving Credit Agreement (and all Exhibits, Schedules and
Appendices thereto) remain in full force and effect.
9. The Borrower agrees to pay all reasonable costs and expenses of the
Lenders and the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including without limitation the
reasonable fees and expenses of Moore & Van Allen, PLLC; provided, the limit
set forth in Section 9. 1 (a) of the ELLF Participation Agreement of $65,000
for fees of Moore & Van Allen, PLLC shall also limit the obligations of the
Borrower under this Section 9.
10. This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original. It shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
11. This Amendment is executed and delivered in Richmond, Virginia and shall
be construed and enforced in accordance with the laws of the Commonwealth of
Virginia without regard to its rules with respect to conflicts of law.
This Borrower, the Lenders and the Administrative Agent have caused this
Amendment to be duly executed and delivered by their proper and duly
authorized representatives as of the day and year first above written.
PERFORMANCE FOOD
GROUP COMPANY,
as the Borrower
By: /s/ Roger L. Boeve
Name: Roger L. Boeve
Title: Exec. VP./CFO
FIRST UNION NATIONAL
BANK (a successor in
interest to First Union
National Bank of Virginia),
as a Lender and as the
Administrative Agent
By: /s/ Bonnie A. Banks
Name: Bonnie A. Banks
Title: VP
<PAGE>
PARTICIPATION AGREEMENT
Dated as of August 29, 1997
among
PERFORMANCE FOOD GROUP COMPANY,
as the Construction Agent and as the Lessee,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly
stated herein, but solely as the Owner Trustee
under the PFG Real Estate Trust 1997-1,
THE VARIOUS BANKS AND OTHER LENDING
INSTITUTIONS WHICH ARE PARTIES HERETO FROM
TIME TO TIME, as the Holders,
THE VARIOUS BANKS AND OTHER LENDING
INSTITUTIONS WHICH ARE PARTIES HERETO FROM
TIME TO TIME, as the Lenders,
and
FIRST UNION NATIONAL BANK,
as the Agent for the Lenders
and respecting the Security Documents,
as the Agent for the Lenders and the Holders,
to the extent of their interests
TABLE OF CONTENTS
Page
SECTION 1. THE LOANS. 1
SECTION 2 . HOLDER ADVANCES. 2
SECTION 3. SUMMARY OF TRANSACTIONS. 2
3.1. Operative Agreements. 2
3.2. Property Purchase. 3
3.3. Construction of Improvements; Lease or Disposition of
Property. 3
SECTION 4. THE CLOSINGS. 3
4.1. Initial Closing Date. 3
4.2. Initial Closing Date; Property Closing Dates; Acquisition
Advances; Construction Advances. 4
SECTION 5. FUNDING OF ADVANCES; REPORTING REQUIREMENTS ON COMPLETION
DATE; THE LESSEE'S DELIVERY OF NOTICES; CERTAIN COVENANTS. 4
5.1. General. 4
5.2. Procedures for Funding. 4
5.3. Conditions to the Holders' and the Lenders' Obligations to
Advance Funds on the Initial Closing Date, for the Acquisition
of Property and otherwise. 6
5.4. Conditions to the Holders' and the Lenders' Obligations to
Make Construction Advances for the Ongoing Construction on any
Property Prior to the Rent Commencement Date. 11
5.5. Additional Reporting and Delivery Requirements on
Completion Date and on Construction Period Termination
Date. 13
5.6. The Construction Agent Delivery of Allocation Notice, Notice
Regarding the Holder Construction Property Cost and Construction
Budget Modifications. 15
5.7 Equipment Excludes Fork-Lifts. 15
5.8 Restrictions on Liens. 15
5.9 Appraisal Requirement Regarding Property Located in or
about Lebanon,Tennessee. 15
SECTION 6. CONDITIONS OF THE INITIAL CLOSING. 16
6.1. Conditions to the Lessor's and the Holders' Obligations. 16
6.2. Conditions to the Lessee's Obligations. 18
6.3. Conditions to the Obligations of the Agent and the Lenders. 20
SECTION 7. REPRESENTATIONS AND WARRANTIES ON THE INITIAL CLOSING DATE 21
7.1. Representations and Warranties of the Holders. 21
7.2. Representations and Warranties of the Borrower. 23
7.3. Representations and Warranties of the Construction Agent and
the Lessee. 26
7.4. Representations and Warranties of the Agent. 28
SECTION 8. REPRESENTATIONS AND WARRANTIES ON FUNDING DATES. 29
8.1. Representations and Warranties on Property Closing Dates. 29
8.2. Representations and Warranties Upon Initial Construction
Advances. 33
8.3. Representations and Warranties Upon the Date of Each
Construction Advance That Is Not An Initial Construction
Advance. 36
SECTION 9. PAYMENT OF CERTAIN EXPENSES. 38
9.1. Transaction Expenses. 38
9.2. Brokers' Fees and Stamp Taxes. 39
9.3. Certain Fees and Expenses. 39
9.4. Unused Fee. 40
SECTION 10. OTHER COVENANTS AND AGREEMENTS. 40
10.1. Cooperation with the Construction Agent or the Lessee. 40
10.2. Covenants of the Owner Trustee and the Holders. 41
10.3. The Lessee Covenants, Consent and Acknowledgment. 43
10.4. Sharing of Certain Payments. 45
10.5. Grant of Easements, etc. 46
10.6. Appointment by the Agent, the Lenders, the Holders and the
Owner Trustee. 46
10.7. Collection and Allocation of Payments and Other Amounts. 47
10.8. Release of Properties, etc. 51
SECTION 11. CREDIT AGREEMENT AND TRUST AGREEMENT. 52
11.1. The Construction Agent's and the Lessee's Credit Agreement
Rights. 52
11.2. The Construction Agent's and the Lessee's Trust Agreement
Rights. 53
SECTION 12. TRANSFER OF INTEREST. 54
12.1. Restrictions on Transfer. 54
12.2. Effect of Transfer. 54
SECTION 13. INDEMNIFICATION. 55
13.1. General Indemnity. 55
13.2. General Tax Indemnity. 58
SECTION 14. MISCELLANEOUS. 65
14.1. Survival of Agreements. 65
14.2. No Broker, etc. 65
14.3. Notices. 66
14.4. Counterparts. 67
14.5. Amendments and Termination. 67
14.6. Headings, etc. 68
14.7. Parties in Interest. 68
14.8. GOVERNING LAW; WAIVERS OF JURY TRIAL;
SUBMISSION TO JURISDICTION; VENUE; ARBITRATION. 68
14.9. Severability. 70
14.10.Liability Limited. 71
14.11.Rights of the Lessee. 72
14.12.Further Assurances. 73
14.13.Calculations under Operative Agreements. 73
14.14.Confidentiality. 73
EXHIBITS
A - Forms of Requisition - Sections 4.2 and 5.2
B - Officer's Certificate - Section 5.5
C - Legal Opinion of Lessee's Counsel - Section 6.1(c)
D - Officer's Certificate - Section 6.1(g)
E - Officer's Certificate - Section 6.1(h)
F - Officer's Certificate - Section 6.2(d)
G - Officer's Certificate - Section 6.2(e)
H - Legal Opinion of Owner Trustee's Counsel - Section 6.2(f)
I - Description of Material Litigation - Section 7.3(d)
J - Form of Mortgage - Section 5.3(m)
Appendix A - Rules of Usage and Definitions
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT dated as of August 29, 1997 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Agreement") is by and among PERFORMANCE FOOD GROUP COMPANY, a Tennessee
corporation (the "Lessee" or the "Construction Agent"); FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, not individually
(in its individual capacity, the "Trust Company"), except as expressly stated
herein, but solely as the Owner Trustee under the PFG Real Estate Trust
1997-1 (the "Owner Trustee", the "Borrower" or the "Lessor"); the various
banks and other lending institutions which are parties hereto from time to
time as lenders (subject to the definition of Lenders in Appendix A hereto,
individually, a "Lender" and collectively, the "Lenders"); FIRST UNION
NATIONAL BANK, a national banking association ("First Union"), as the agent
for the Lenders and respecting the Security Documents, as the agent for the
Lenders and the Holders, to the extent of their interests (in such capacity,
the "Agent"); the various banks and other lending institutions which are
parties hereto from time to time as holders of certificates issued with
respect to the PFG Real Estate Trust 1997-1 (subject to the definition of
Holders in Appendix A hereto, individually, a "Holder" and collectively,
the "Holders"). Capitalized terms used but not otherwise defined in this
Agreement shall have the meanings set forth in Appendix A hereto.
In consideration of the mutual agreements herein contained and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. THE LOANS.
Subject to the terms and conditions of this Agreement and in
reliance on the representations and warranties of each of the parties hereto
contained herein or made pursuant hereto, the Lenders have agreed to
make Loans to the Lessor from time to time in an aggregate principal
amount of up to the aggregate amount of the Commitments of the Lenders
in order for the Lessor to acquire the Properties and certain Improvements,
to develop and construct certain Improvements in accordance with the
Agency Agreement and the terms and provisions hereof and for the other
purposes described herein, and in consideration of the receipt of proceeds
of the Loans, the Lessor will issue the Notes. The Loans shall be made
and the Notes shall be issued pursuant to the Credit Agreement. Pursuant
to Section 5 of this Agreement and Section 2 of the Credit Agreement, the
Loans will be made to the Lessor from time to time at the request of the
Construction Agent in consideration for the Construction Agent agreeing
for the benefit of the Lessor, pursuant to the Agency Agreement, to
acquire the Properties, to acquire the Equipment, to construct certain
Improvements and to cause the Lessee to lease the Properties, each in
accordance with the Agency Agreement and the other Operative
Agreements. The Loans and the obligations of the Lessor under the Credit
Agreement shall be secured by the Collateral.
SECTION 2 . HOLDER ADVANCES.
Subject to the terms and conditions of this Agreement and in
reliance on the representations and warranties of each of the parties hereto
contained herein or made pursuant hereto, on each date Advances are
requested to be made in accordance with Section 5 hereof, each Holder
shall make a Holder Advance on a pro rata basis to the Lessor with respect
to the PFG Real Estate Trust 1997-1 based on its Holder Commitment in
an amount in immediately available funds such that the aggregate of all
Holder Advances on such date shall be three percent (3%) of the amount
of the Requested Funds on such date (except that in each case, the Holder
Advance on any Scheduled Interest Payment Date shall be sufficient to
fund Holder Yield); provided, that no Holder shall be obligated for any
Holder Advance in excess of its pro rata share of the Available Holder
Commitment. The aggregate amount of Holder Advances shall be up to
the aggregate amount of the Holder Commitments. No prepayment or any
other payment with respect to any Advance shall be permitted such that
the Holder Advance with respect to such Advance is less than three
percent (3%) of the outstanding amount of such Advance, except in
connection with termination or expiration of the Term or in connection
with the exercise of remedies relating to the occurrence of a Lease Event
of Default. The representations, warranties, covenants and agreements of
the Holders herein and in the other Operative Agreements are several, and
not joint or joint and several.
SECTION 3. SUMMARY OF TRANSACTIONS.
3.1. Operative Agreements.
On the date hereof, each of the respective parties hereto and thereto
shall execute and deliver this Agreement, the Lease, each applicable
Ground Lease, the Agency Agreement, the Credit Agreement, the Notes,
the Trust Agreement, the Certificates, the Security Agreement, each
applicable Mortgage Instrument and such other documents, instruments,
certificates and opinions of counsel as agreed to by the parties hereto.
3.2. Property Purchase.
On each Property Closing Date and subject to the terms and
conditions of this Agreement (a) the Holders will each make a Holder
Advance in accordance with Sections 2 and 5 of this Agreement and the
terms and provisions of the Trust Agreement, (b) the Lenders will each
make Loans in accordance with Sections 1 and 5 of this Agreement and
the terms and provisions of the Credit Agreement, (c) the Lessor will
purchase and acquire good and marketable title to or lease pursuant to a
Ground Lease, the applicable Property, each to be within an Approved
State, identified by the Construction Agent, in each case pursuant to a
Deed and/or Bill of Sale, as the case may be, and grant the Agent a lien on
such Property by execution of the required Security Documents, (d) the
Agent, the Lessee and the Lessor shall execute and deliver a Lease
Supplement relating to the Property and (e) the Basic Term shall
commence with respect to the Property.
3.3. Construction of Improvements; Lease or Disposition of Property.
Construction Advances will be made with respect to particular
Improvements to be constructed and with respect to ongoing Work
regarding the Equipment and construction of particular Improvements, in
each case, pursuant to the terms and conditions of this Agreement and the
Agency Agreement. The Construction Agent will act as a construction
agent on behalf of the Lessor respecting the Work regarding the
Equipment, the construction of such Improvements and the expenditures
of the Construction Advances related to the foregoing. The Construction
Agent shall promptly notify the Lessor upon Completion of the
Improvements and the Lessee shall commence to pay Basic Rent as of the
Rent Commencement Date.
SECTION 4. THE CLOSINGS.
4.1. Initial Closing Date.
All documents and instruments required to be delivered on the
Initial Closing Date shall be delivered at the offices of Moore & Van
Allen, PLLC, Charlotte, North Carolina, or at such other location as may
be determined by the Lessor, the Agent and the Lessee.
4.2. Initial Closing Date; Property Closing Dates;
Acquisition Advances; Construction Advances.
The Construction Agent shall deliver to the Lessor and the Agent a
requisition (a "Requisition"), in the form attached hereto as Exhibit A or in
such other form as is reasonably satisfactory to the Lessor and the Agent,
in connection with (a) the Transaction Expenses and other fees, expenses
and disbursements payable, pursuant to Section 9.1, by the Lessor and (b)
each Acquisition Advance pursuant to Section 5.3 and (c) each
Construction Advance pursuant to Section 5.4.
SECTION 5. FUNDING OF ADVANCES;
REPORTING REQUIREMENTS ON COMPLETION DATE;
THE LESSEE'S DELIVERY OF NOTICES; CERTAIN
COVENANTS.
5.1. General.
To the extent funds have been advanced to the Lessor as Loans by
the Lenders and to the Lessor as Holder Advances by the Holders, the
Lessor will use such funds from time to time in accordance with the terms
and conditions of this Agreement and the other Operative Agreements (i)
to pay interest on the Loans relating to a Property and to pay the Holder
Yield on the Holder Advances relating to a Property, in each case to the
extent accrued under the Credit Agreement or Trust Agreement (as the
case may be) during the period prior to the Rent Commencement Date
with respect to such Property, (ii) at the direction of the Construction
Agent to acquire the Properties in accordance with the terms of this
Agreement, the Agency Agreement and the other Operative Agreements,
(iii) to make Advances to the Construction Agent to permit the acquisition,
testing, engineering, installation, development, construction, modification,
design, and renovation, as applicable, of the Properties (or components
thereof) in accordance with the terms of the Agency Agreement and the
other Operative Agreements, and (iv) to pay Transaction Expenses, fees,
expenses and other disbursements payable by the Lessor under Sections
9.1(a) and (b).
5.2. Procedures for Funding.
(a) The Construction Agent shall designate the date for
Advances hereunder in accordance with the terms and provisions
hereof; provided, however, it is understood and agreed that no
more than two (2) Advances may be requested during any calendar
month; and provided further, not more than one (1) of such
Advances in any calendar month may be based on a Eurodollar
Rate. Not less than (i) three (3) Business Days prior to the Initial
Closing Date and (ii) three (3) Business Days prior to the date on
which any Acquisition Advance or Construction Advance is to be
made, the Construction Agent shall deliver to the Agent, (A) with
respect to the Initial Closing Date and each Acquisition Advance, a
Requisition as described in Section 4.2 hereof (including without
limitation a legal description of the Land, a schedule of the
Improvements, if any, and a schedule of the Equipment, if any,
acquired or to be acquired on such date, and a schedule of the
Work, if any, to be performed, each of the foregoing in a form
reasonably acceptable to the Agent) and (B) with respect to each
Construction Advance, a Requisition identifying (among other
things) the Property to which such Construction Advance relates.
(b) Each Requisition shall: (i) be irrevocable, (ii)
request funds in an amount that is not in excess of the total
aggregate of the Available Commitments plus the Available
Holder Commitments at such time, and (iii) request that the
Holders make Holder Advances and that the Lenders make Loans
to the Lessor for the payment of Transaction Expenses, Property
Acquisition Costs (in the case of an Acquisition Advance) or other
Property Costs (in the case of a Construction Advance) that have
previously been incurred or are to be incurred on the date of such
Advance to the extent such were not subject to a prior Requisition,
in each case as specified in the Requisition. Regardless of whether
such is expressly set forth in any Requisition, a Requisition shall
be deemed to be submitted at the appropriate time (during the
period that the Commitments and the Holder Commitments remain
in effect) and in the appropriate amount necessary to pay interest
on the Loans and Holder Yield on the Holder Advances.
(c) Subject to the satisfaction of the conditions
precedent set forth in Sections 5.3, 5.4 or 5.5, as applicable, on
each Property Closing Date or the date on which the Construction
Advance is to be made, as applicable, (i) the Lenders shall make
Loans based on their respective Lender Commitments to the Lessor
in an aggregate amount equal to ninety-seven percent (97%) of the
Requested Funds specified in any Requisition, up to an aggregate
principal amount equal to the aggregate of the Available
Commitments, (ii) each Holder shall make a Holder Advance
based on its Holder Commitment in an amount such that the
aggregate of all Holder Advances at such time shall be three
percent (3%) of the balance of the Requested Funds specified in
such Requisition, up to the aggregate advanced amount equal to the
aggregate of the Available Holder Commitments; and (iii) the total
amount of such Loans and Holder Advances made on such date
shall (x) be used by the Lessor to pay Property Costs and/or
Transaction Expenses within three (3) Business Days of the receipt
by the Lessor of such Advance, (y) be used by the Lessor on the
date of such Advance to pay interest on the Loans relating to the
Property and to pay the Holder Yield on the Holder Advances
relating to the Property, in each case to the extent accrued under
the Credit Agreement or Trust Agreement (as the case may be)
during the period prior to the Rent Commencement Date with
respect to such Property, or (z) be advanced by the Lessor on the
date of such Advance to the Construction Agent or the Lessee to
pay Property Costs, as applicable.
(d) With respect to an Advance obtained by the Lessor
to pay for Property Costs and/or Transaction Expenses or other
costs payable under Section 9.1 hereof and not expended by the
Lessor for such purpose on the date of such Advance, such
amounts shall be held by the Lessor (or the Agent on behalf of the
Lessor) until the applicable closing date or, if such closing date
does not occur within three (3) Business Days of the date of the
Lessor's receipt of such Advance, shall be applied regarding the
applicable Advance to repay the Lenders and the Holders and,
subject to the terms hereof, and of the Credit Agreement and the
Trust Agreement, shall remain available for future Advances. Any
such amounts held by the Lessor (or the Agent on behalf of the
Lessor) shall be subject to the lien of the Security Agreement.
(e) All items described in Sections 5.3, 5.4 or 5.5 which
are to be delivered to the Agent or the Lessor shall be delivered to
Moore & Van Allen, PLLC, on behalf of the Agent or the Lessor,
and such items shall be delivered with originals sufficient for the
Lessor, each Holder, each Lender and the Agent.
5.3. Conditions to the Holders' and the Lenders' Obligations to Advance
Funds on the Initial Closing Date, for the Acquisition of Property and
otherwise.
The obligations of the Holders to make Holder Advances, and of
the Lenders to make Loans to the Lessor, (i) on the Initial Closing Date to
pay Transaction Expenses, fees, expenses and other disbursements payable
by the Lessor under Section 9.1(a) of this Agreement and (ii) on a Property
Closing Date for the purpose of providing funds to the Lessor necessary to
pay the Transaction Expenses, fees, expenses and other disbursements
payable by the Lessor under Section 9.1(b) of this Agreement and to
acquire or ground lease a Property (an "Acquisition Advance"), in each
case are subject to the satisfaction or waiver of the following conditions
precedent on or prior to such date respecting each Property to be acquired
or ground leased at such time and all Properties previously acquired or
ground leased (to the extent such conditions precedent require the delivery
of any agreement, certificate, instrument, memorandum, legal or other
opinion, appraisal, commitment, title insurance commitment, lien report or
any other document of any kind or type, such shall be in form and
substance reasonably satisfactory to the Lessor, the Agent and the
Majority Holders):
(a) the correctness in all material respects of the
representations and warranties (including without limitation the
Incorporated Representations and Warranties) on each such date of
the Lessor, the Construction Agent, the Lessee and the Holders
contained herein and in each of the other Operative Agreements;
(b) the performance in all material respects by the
Construction Agent and the Lessee of their respective agreements
contained herein and in the other Operative Agreements and to be
performed by them on or prior to each such date;
(c) the Lessor shall have received a fully executed
counterpart copy of the Requisition, appropriately completed;
(d) title to each such Property shall conform to the
representations and warranties set forth in Section 8.1(c) hereof;
(e) the Construction Agent shall have delivered to the
Lessor the Deed with respect to the Land and existing
Improvements (if any), a copy of the Ground Lease (if any), and a
copy of the Bill of Sale with respect to the Equipment (if any),
respecting such of the foregoing as are being acquired or ground
leased on each such date with the proceeds of the Loans or Holder
Advances or which have been previously acquired or ground
leased with the proceeds of the Loans or Holder Advances and
such Land, existing Improvements (if any) and Equipment (if any)
shall be located in an Approved State;
(f) there shall not have occurred and be continuing any
Default or Event of Default under any of the Operative Agreements
and no Default or Event of Default under any of the Operative
Agreements will have occurred after giving effect to the Advance
requested by such Requisition;
(g) the Construction Agent shall have delivered to the
Lessor title insurance commitments to issue policies respecting
each such Property in favor of the Lessor, the Agent and the
Holders from a title insurance company acceptable to the Lessor,
the Agent and the Majority Holders in their reasonable discretion,
with such title exceptions thereto as are acceptable to the Lessor,
the Agent and the Majority Holders in their reasonable discretion;
(h) the Construction Agent shall have delivered to the
Lessor an environmental site assessment respecting each such
Property prepared by an independent recognized professional
acceptable to the Lessor, the Agent and the Majority Holders in
their reasonable discretion;
(i) the Construction Agent shall have delivered to the
Lessor a survey (with a flood hazard certification) respecting each
such Property prepared by an independent recognized professional
acceptable to the Lessor, the Agent and the Majority Holders in
their reasonable discretion;
(j) the Construction Agent shall have caused to be
delivered to the Lessor a legal opinion, addressed to the Lessor, the
Agent, the Lenders and the Holders, from counsel located in the
state where each such Property is located;
(k) the Lessor, the Agent and the Majority Holders shall
be satisfied, in their reasonable discretion, that the acquisition,
ground leasing and/or holding of each such Property and the
execution of the Mortgage Instrument and the other Security
Documents will not materially and adversely affect the rights of
the Lessor, the Agent, the Holders or the Lenders under or with
respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the
Lessor, respecting each such Property, invoices for, or other
reasonably satisfactory evidence of, the various Transaction
Expenses and other fees, expenses and disbursements referenced in
Sections 9.1(a) or (b) of this Agreement, as appropriate;
(m) the Construction Agent shall have caused to be
delivered to the Agent a Mortgage Instrument (substantially in the
form of Exhibit J hereto, with revisions as necessary to conform to
applicable state law), Lessor Financing Statements and Lender
Financing Statements respecting each such Property, all fully
executed and in recordable form, and all necessary recording fees,
documentary stamp taxes and similar amounts shall have been paid
by the Construction Agent (which may be paid with Loans and/or
Holder Advances);
(n) the Lessee shall have delivered to the Lessor with
respect to each Property a Lease Supplement and a memorandum
(or short form lease) regarding the Lease and such Lease
Supplement (such memorandum or short form lease to be
substantially in the form attached to the Lease as Exhibit B, with
modifications as necessary to conform to applicable state law, and
in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum
of the Available Commitment plus the Available Holder
Commitment (after deducting the Unfunded Amount, if any, and
after giving effect to the Acquisition Advance) will be sufficient to
pay all amounts payable therefrom and to pay interest on the Loans
and the Holder Yield on the Holder Advances relating to all
Properties to the extent accrued under the Credit Agreement and
the Trust Agreement, as the case may be, during the period prior to
the Rent Commencement Date with respect to each such Property;
(p) if any such Property is subject to a Ground Lease,
the Construction Agent shall have caused a lease memorandum (or
short form thereof) to be delivered to the Agent for such Ground
Lease;
(q) counsel for the ground lessor of each such Property
subject to a Ground Lease shall have issued to the Lessor, the
Agent, the Lenders and the Holders, its opinion;
(r) the Construction Agent shall have delivered to the
Lessor a preliminary Construction Budget for each such Property,
if applicable;
(s) the Construction Agent shall have provided
evidence to the Lessor of general and excess liability insurance
with respect to each such Property as provided in the Lease;
(t) subject to Section 5.5 of this Agreement, the
Construction Agent shall have caused an as-built Appraisal
regarding each such Property to be provided to the Lessor from an
appraiser selected by the Lessor, the Agent and the Majority
Holders;
(u) all necessary (or in the reasonable opinion of the
Lessor, the Agent, the Majority Holders, or their respective
counsel, advisable) Governmental Actions, in each case required
by any law or regulation enacted, imposed or adopted on or prior to
each such date or by any change in facts or circumstances on or
prior to each such date, shall have been obtained or made and be in
full force and effect;
(v) the Construction Agent shall cause (i) Uniform
Commercial Code lien searches, tax lien searches and judgment
lien searches regarding the Lessee to be conducted (and copies
thereof to be delivered to the Lessor) in such jurisdictions as
determined by the Lessor, the Agent or the Majority Holders by a
nationally recognized search company acceptable to the Lessor, the
Agent and the Majority Holders and (ii) the liens referenced in
such lien searches which are objectionable to the Lessor, the Agent
or the Majority Holders to be either removed or otherwise handled
in a manner satisfactory to the Lessor, the Agent and the Majority
Holders in their reasonable discretion;
(w) all taxes, fees and other charges in connection with
the execution, delivery, recording, filing and registration of the
Operative Agreements shall have been paid or provisions for such
payment shall have been made to the satisfaction of the Lessor, the
Agent and the Majority Holders;
(x) all necessary (or in the reasonable opinion of the
Lessor, the Agent, the Majority Holders or their respective counsel,
advisable) Governmental Actions, in each case required by any law
or regulation enacted, imposed or adopted on or prior to the date
hereof or by any change in fact or circumstances on or prior to the
date hereof, shall have been obtained or made and be in full force
and effect;
(y) no action or proceeding shall have been instituted,
nor shall any action or proceeding be overtly threatened, before
any Governmental Authority, nor shall any order, judgment or
decree have been issued or proposed to be issued by any
Governmental Authority or to set aside, restrain, enjoin or prevent
the full performance of this Agreement, any other Operative
Agreement or any transaction contemplated hereby or thereby
which, individually or in the aggregate, shall have a Material
Adverse Effect;
(z) in the reasonable opinion of the Lessor, the Agent,
the Majority Holders and their respective counsel, the transactions
contemplated by the Operative Agreements do not and will not
violate any Legal Requirements and do not and will not subject the
Lessor, the Lenders, the Agent or the Holders to any adverse
regulatory prohibitions, constraints, penalties or fines; and
(aa) each of the conditions set forth in Section 6.1 shall
have been met to the satisfaction of or waived by the Lessor, the
Majority Holders, the Majority Lenders and the Agent.
5.4. Conditions to the Holders' and the Lenders' Obligations to Make
Construction Advances for the Ongoing Construction on any Property Prior
to the Rent Commencement Date.
The obligations of the Holders to make Holder Advances, and the
Lenders to make Loans, to the Lessor, (i) in connection with all requests
for Advances subsequent to the acquisition of a Property (and to pay the
Transaction Expenses, fees, expenses and other disbursements payable by
the Lessor under Section 9.1 of this Agreement in connection therewith)
and (ii) to pay the Holder Yield on the Holder Advances relating to a
Property and interest regarding the Loans relating to a Property (a
"Construction Advance"), in each case regarding such Holder Yield and
Interest to the extent accrued and payable under the Trust Agreement or
Credit Agreement (as the case may be), during the period prior to the Rent
Commencement Date with respect to such Property, are subject to the
satisfaction or waiver of the following conditions precedent (to the extent
such conditions precedent require the delivery of any agreement,
certificate, instrument, memorandum, legal or other opinion, appraisal,
commitment, title insurance commitment, lien report or any other
document of any kind or type, such shall be in form and substance
reasonably satisfactory to the Agent, the Majority Holders and the Lessor):
(a) the correctness in all material respects on such date
of the representations and warranties (including without limitation
the Incorporated Representations and Warranties) of the Lessor,
the Construction Agent, the Lessee and the Holders contained
herein and in each of the other Operative Agreements;
(b) the performance in all material respects by the
Construction Agent and the Lessee of their respective agreements
contained herein and in the other Operative Agreements and to be
performed by them on or prior to each such date;
(c) the Lessor shall have received a fully executed
counterpart of the Requisition, appropriately completed;
(d) based upon the applicable Construction Budget
which shall satisfy the requirements of this Agreement, the
Available Commitments and the Available Holder Commitment
(after deducting the Unfunded Amount) will be sufficient to
complete the Improvements;
(e) there shall not have occurred and be continuing any
Default or Event of Default under any of the Operative Agreements
and no Default or Event of Default under any of the Operative
Agreements will have occurred after giving effect to the
Construction Advance requested by such Requisition;
(f) the title insurance policy delivered in connection
with the requirements of Section 5.3(g) shall provide for (or shall
be endorsed to provide for) insurance in an amount at least equal to
the maximum total Property Cost indicated by the Construction
Budget referred to in subparagraph (d) above and there shall be no
title change or exception objectionable to the Lessor, the Agent or
the Majority Holders in the exercise of their reasonable discretion;
(g) the Construction Agent shall have delivered to the
Lessor copies of the Plans and Specifications for the applicable
Improvements;
(h) the Construction Agent shall have delivered to the
Lessor invoices for any Transaction Expenses and other fees,
expenses and disbursements referenced in Section 9.1 that are to be
paid with the Advance;
(i) all consents, licenses, permits, authorizations,
assignments and building permits required as of such date by all
Legal Requirements or pursuant to the terms of any contract,
indenture, instrument or agreement for the acquisition, ownership,
construction, completion, occupancy, operation, leasing or
subleasing of each such Property shall have been obtained and
shall be in full force and effect, except to the extent that the failure
to so obtain any such item at such time would not, individually or
in the aggregate, have a Material Adverse Effect;
(j) the Construction Agent shall have delivered, or
caused to be delivered, invoices, Bills of Sale or other documents
reasonably acceptable to the Agent, the Majority Holders and the
Lessor in each case with regard to any Equipment or other
components of such Property then being acquired with the
proceeds of the Loans and Holder Advances and naming the Lessor
as purchaser and transferee;
(k) all taxes, fees and other charges in connection with
the execution, delivery, recording, filing and registration of the
Operative Agreements shall have been paid or provisions for such
payment shall have been made to the satisfaction of the Lessor, the
Agent and the Majority Holders;
(l) all necessary (or in the reasonable opinion of the
Lessor, the Agent, the Majority Holders or their respective counsel,
advisable) Governmental Actions, in each case required by any law
or regulation enacted, imposed or adopted on or prior to the date
hereof or by any change in fact or circumstances on or prior to the
date hereof, shall have been obtained or made and be in full force
and effect;
(m) no action or proceeding shall have been instituted,
nor shall any action or proceeding be overtly threatened, before
any Governmental Authority, nor shall any order, judgment or
decree have been issued or proposed to be issued by any
Governmental Authority or to set aside, restrain, enjoin or prevent
the full performance of this Agreement, any other Operative
Agreement or any transaction contemplated hereby or thereby
which, individually or in the aggregate, shall have a Material
Adverse Effect; and
(n) in the reasonable opinion of the Lessor, the Agent,
the Majority Holders and their respective counsel, the transactions
contemplated by the Operative Agreements do not and will not
violate any Legal Requirements and do not and will not subject the
Lessor, the Lenders, the Agent or the Holders to any adverse
regulatory prohibitions, constraints, penalties or fines.
5.5. Additional Reporting and Delivery Requirements on
Completion Date and on Construction Period
Termination Date.
On or prior to the Completion Date for each Property, the
Construction Agent shall deliver to the Lessor an Officer's Certificate in
the form attached hereto as Exhibit B specifying (a) the address for such
Property, (b) the Completion Date for such Property, (c) the aggregate
Property Cost for such Property, (d) detailed, itemized documentation
supporting the asserted Property Cost figures, (e) all Equipment (if any)
that has been acquired with the proceeds of the Loans and Holder
Advances has been installed and is operational and all Improvements have
been made in accordance with all applicable Legal Requirements in a good
and workmanlike manner in accordance with the Plans and Specifications
(except to the extent that any deviation from the Plans and Specifications
could not reasonably be expected to impair the value, utility, economic life
or operation of such Property) and otherwise in full compliance with the
standards and practices of the Construction Agent with respect to
equipment, properties and improvements owned by the Construction
Agent and (f) all consents, licenses, permits, authorizations, assignments
and building permits required as of such date by all Legal Requirements or
pursuant to the terms of any contract, indenture, instrument or agreement
for the acquisition, ownership, construction, completion, occupancy,
operation, leasing or subleasing of such Property have been obtained and
are in full force and effect, except to the extent that the failure to so
obtain would not, individually or in the aggregate, have a Material
Adverse Effect. The Lessor, the Agent and the Majority Holders shall have
the right to contest the information contained in such Officer's Certificate.
Furthermore, on or prior to the Completion Date for each Property, the
Construction Agent shall deliver or cause to be delivered to the Lessor
(unless previously delivered to the Lessor) originals of the following, each
of which shall be in form reasonably acceptable to the Lessor, the Agent
and the Majority Holders: (v) an as-built survey for such Property, (w)
insurance certificates respecting such Property as required hereunder and
under the Lease Agreement, (x) a memorandum (or short form) of the
Lease and such Lease Supplement (in form suitable for recording), (y) if
requested by the Lessor, the Agent or the Majority Holders, amendments
to the Lessor Financing Statements executed by the appropriate parties and
(z) an Appraisal regarding such Property provided, however, such an
Appraisal shall not be required if, as of such Completion Date, the Agent
has previously received Appraisal(s) pursuant to this Section 5.5 for
Properties that are then subject to the Lease and that have an aggregate
value (as established by such Appraisal(s)) of at least $8,400,000. In
addition, on the Completion Date for such Property the Construction
Agent covenants and agrees that the recording fees, documentary stamp
taxes or similar amounts required to be paid in connection with the related
Mortgage Instrument shall be paid in an amount required by applicable
law, subject, however, to the obligations of the Lenders and the Holders to
fund such costs to the extent required pursuant to Section 9.1.
5.6. The Construction Agent Delivery of Allocation Notice,
Notice Regarding the Holder Construction Property
Cost and Construction Budget Modifications.
The Construction Agent covenants and agrees to deliver (a) to the
Agent each month during the Commitment Period the Allocation Notice
referred to in the first sentence of Section 2.3(b) of the Credit Agreement,
and a notice specifying the Holder Cost of each Property and (b) to the
Agent each month notification of any modification to any Construction
Budget regarding any Property if such modification increases the cost to
construct such Property; provided no Construction Budget may be
increased unless (x) the title insurance policies referenced in Section
5.3(g) are also modified or endorsed, if necessary, to provide for insurance
in an amount that satisfies the requirements of Section 5.4(f) of this
Agreement and (y) after giving effect to any such amendment the
Construction Budget remains in compliance with the requirements of
Section 5.4(d) of this Agreement.
5.7 Equipment Excludes Fork-Lifts.
To the extent the Construction Agent does not include any fork-lift
on any Requisition, the Equipment shall in all cases exclude fork-lifts.
5.8 Restrictions on Liens.
On each Property Closing Date, the Construction Agent shall cause
each Property acquired by the Lessor on such date to be free and clear of
all Liens except those referenced in Sections 8.1(k)(i) and 8.1(k)(ii). On
each date a Property is either sold to a third party in accordance with the
terms of the Operative Agreements or, pursuant to Section 22.1(a) of the
Lease Agreement, retained by the Lessor, the Lessee shall cause such
Property to be free and clear of all Liens (other than Lessor Liens and such
other Liens that are expressly set forth as title exceptions on the title
commitment issued under Section 5.3(g) with respect to such Property, to
the extent such title commitment has been approved by the Lessor, the
Agent and the Majority Holders).
5.9 Appraisal Requirement Regarding Property Located in
or about Lebanon, Tennessee.
The provisions of this Section 5.9 shall apply only to the extent the
Lessor acquires an interest in a property located in or about Lebanon,
Tennessee (the "Lebanon Property") prior to the time the Lessee has
delivered an Appraisal (which satisfies the requirements of the Operative
Agreements) with respect to the Lebanon Property. Notwithstanding any
condition precedent or other provision in any Operative Agreement to the
contrary, the Lessee will deliver an Appraisal (in form and substance
satisfactory to the Agent, consistent with the requirements for an Appraisal
set forth in the Operative Agreements) with respect to the Lebanon
Property on or prior to the date 90 days after the date of Lessor's
acquisition thereof. If such Appraisal is not delivered by such date, then
the Lessee shall (at the election of the Majority Secured Parties and on a
date specified by the Agent) purchase the Lebanon Property for the
Termination Value thereof. Concurrent with the purchase by the Lessee,
the Lessee shall pay all other amounts then due and owing under the
Operative Agreements and all reasonable costs and expenses, if any,
incurred by the Lessor, the Agent, the Lenders and/or the Holders in
connection with the above described purchase of the Lebanon Property.
SECTION 6. CONDITIONS OF THE INITIAL CLOSING.
6.1. Conditions to the Lessor's and the Holders' Obligations.
The obligations of the Lessor and the Holders to consummate the
transactions contemplated by this Agreement, including without limitation
the obligation to execute and deliver the applicable Operative Agreements
to which each is a party on the Initial Closing Date, are subject to (i) the
accuracy and correctness in all material respects on the Initial Closing
Date of the representations and warranties of the other parties hereto
contained herein, (ii) the accuracy and correctness in all material respects
on the Initial Closing Date of the representations and warranties of the
other parties hereto contained in any other Operative Agreement or
certificate delivered pursuant hereto or thereto, (iii) the performance by the
other parties hereto of their respective agreements contained herein and in
the other Operative Agreements and to be performed by them on or prior
to the Initial Closing Date and (iv) the satisfaction or waiver by the Lessor
and the Majority Holders of all of the following conditions on or prior to
the Initial Closing Date (All items described in this Section 6.1 which are
stated to be delivered to the Lessor, the Agent, the Lenders or the Holders
shall, in fact, be delivered to Moore & Van Allen, PLLC on behalf of each
such Party, and such items described to be delivered to the Agent shall be
delivered with originals sufficient for the Lessor, each Holder, each
Lender and the Agent.):
(a) Each of the Operative Agreements to be entered into
on the Initial Closing Date shall have been duly authorized,
executed and delivered by the parties thereto, other than the Lessor
and the Holders, and shall be in full force and effect, and no
Default or Event of Default shall exist thereunder (both before and
after giving effect to the transactions contemplated by the
Operative Agreements), and the Lessor shall have received a fully
executed copy of each of the Operative Agreements (other than the
Notes of which it shall have received specimens). The Operative
Agreements (or memoranda thereof), any supplements thereto and
any financing statements and fixture filings in connection
therewith required under the Uniform Commercial Code shall have
been filed or shall be promptly filed, if necessary, in such manner
as to enable the Lessee's counsel to render its opinion referred to in
Section 6.1(c) hereof;
(b) All taxes, fees and other charges in connection with
the execution, delivery, recording, filing and registration of the
Operative Agreements shall have been paid or provisions for such
payment shall have been made to the satisfaction of the Lessor, the
Agent and the Majority Holders;
(c) Counsel for the Lessee acceptable to the other
parties hereto in their reasonable discretion shall have issued to the
Lessor, the Holders, the Lenders and the Agent its opinion in the
form attached hereto as Exhibit C or in such other form as is
reasonably acceptable to such parties;
(d) All necessary (or in the reasonable opinion of the
Lessor, the Agent, the Majority Holders or their respective counsel,
advisable) Governmental Actions, in each case required by any law
or regulation enacted, imposed or adopted on or prior to the date
hereof or by any change in fact or circumstances on or prior to the
date hereof, shall have been obtained or made and be in full force
and effect;
(e) No action or proceeding shall have been instituted,
nor shall any action or proceeding be overtly threatened, before
any Governmental Authority, nor shall any order, judgment or
decree have been issued or proposed to be issued by any
Governmental Authority or to set aside, restrain, enjoin or prevent
the full performance of this Agreement, any other Operative
Agreement or any transaction contemplated hereby or thereby
which, individually or in the aggregate, shall have a Material
Adverse Effect;
(f) In the reasonable opinion of the Lessor, the Agent,
the Majority Holders and their respective counsel, the transactions
contemplated by the Operative Agreements do not and will not
violate any Legal Requirements and do not and will not subject the
Lessor, the Lenders, the Agent or the Holders to any adverse
regulatory prohibitions, constraints, penalties or fines;
(g) The Lessor and the Agent shall each have received
an Officer's Certificate, dated as of the Initial Closing Date, of the
Lessee in the form attached hereto as Exhibit D or in such other
form as is reasonably acceptable to such parties stating that (i) each
and every representation and warranty of the Lessee contained in
the Operative Agreements to which it is a party is true and correct
in all material respects on and as of the Initial Closing Date; (ii) no
Default or Event of Default has occurred and is continuing under
any Operative Agreement; (iii) each Operative Agreement to which
the Lessee is a party is in full force and effect with respect to it;
and (iv) the Lessee has performed and complied with all covenants,
agreements and conditions contained herein or in any Operative
Agreement required to be performed or complied with by it on or
prior to the Initial Closing Date;
(h) The Lessor and the Agent shall each have received
(i) a certificate of the Secretary or an Assistant Secretary of the
Lessee in the form attached hereto as Exhibit E or in such other
form as is reasonably acceptable to such parties attaching and
certifying as to (1) the resolutions of its Board of Directors duly
authorizing the execution, delivery and performance by the Lessee
of each of the Operative Agreements to which it is or will be a
party, (2) its certificate of incorporation certified as of a recent date
by the Secretary of State of the State of Tennessee and its by-laws
and (3) the incumbency and signature of persons authorized to
execute and deliver on its behalf the Operative Agreements to
which it is a party and (ii) a good standing certificate (or local
equivalent) from the appropriate officer of the State of Tennessee
as to its good standing in such state; and
(i) As of the Initial Closing Date, there shall not have
occurred any material adverse change in the consolidated assets,
liabilities, operations, business or financial condition of the Lessee
from that set forth in the audited financial statements of the Lessee
dated December 28, 1996.
6.2. Conditions to the Lessee's Obligations.
The obligation of the Lessee to enter into the transactions
contemplated by this Agreement, including without limitation the
obligation to execute and deliver the Operative Agreements to which it is a
party on the Initial Closing Date, is subject to (i) the accuracy and
correctness on the Initial Closing Date of the representations and
warranties of the other parties hereto contained herein, (ii) the accuracy
and correctness on the Initial Closing Date of the representations and
warranties of the other parties hereto contained in any other Operative
Agreement or certificate delivered pursuant hereto or thereto, (iii) the
performance by the other parties hereto of their respective agreements
contained herein and in the other Operative Agreements, in each case to be
performed by them on or prior to the Initial Closing Date, and (iv) the
satisfaction or waiver by the Lessee of all of the following conditions on
or prior to the Initial Closing Date:
(a) In the reasonable opinion of the Lessee and its
counsel, the transactions contemplated by the Operative
Agreements do not and will not violate any Legal Requirements
and do not and will not subject the Lessee to any adverse
regulatory prohibitions or constraints;
(b) No action or proceeding shall have been instituted
nor shall any action or proceeding be threatened, before any
Governmental Authority, nor shall any order, judgment or decree
have been issued or proposed to be issued by any Governmental
Authority, to set aside, restrain, enjoin or prevent the full
performance of this Agreement, any other Operative Agreement or
any transaction contemplated hereby or thereby which,
individually or in the aggregate, shall have a Material Adverse
Effect;
(c) Each of the Operative Agreements to be entered into
on the Initial Closing Date shall have been duly authorized,
executed and delivered by the parties thereto, other than the
Lessee, and shall be in full force and effect, and the Lessee shall
have received a fully executed copy of each of the Operative
Agreements;
(d) The Lessee and the Agent shall have received an
Officer's Certificate of the Lessor dated as of the Initial Closing
Date in the form attached hereto as Exhibit F or in such other form
as is reasonably acceptable to the Lessee, the Agent and the
Majority Holders, stating that (i) each and every representation and
warranty of the Lessor contained in the Operative Agreements to
which it is a party is true and correct on and as of the Initial
Closing Date, (ii) each Operative Agreement to which the Lessor is
a party is in full force and effect with respect to it and (iii) the
Lessor has duly performed and complied with all covenants,
agreements and conditions contained herein or in any Operative
Agreement required to be performed or complied with by it on or
prior to the Initial Closing Date;
(e) The Lessee and the Agent shall have received (i) a
certificate of the Secretary, an Assistant Secretary, Trust Officer or
Vice President of the Trust Company in the form attached hereto as
Exhibit G or in such other form as is reasonably acceptable to the
Lessee, the Agent and the Majority Holders, attaching and
certifying as to (A) the signing resolutions duly authorizing the
execution, delivery and performance by the Lessor of each of the
Operative Agreements to which it is or will be a party, (B) its
articles of association or other equivalent charter documents and its
by-laws, as the case may be, certified as of a recent date by an
appropriate officer of the Trust Company and (C) the incumbency
and signature of persons authorized to execute and deliver on its
behalf the Operative Agreements to which it is a party and (ii) a
good standing certificate from the Office of the Comptroller of the
Currency; and
(f) Counsel for the Lessor acceptable to the other
parties hereto shall have issued to the Lessee, the Holders, the
Lenders and the Agent its opinion in the form attached hereto as
Exhibit H or in such other form as is reasonably acceptable to such
parties.
6.3. Conditions to the Obligations of the Agent and the Lenders.
The obligations of the Agent and the Lenders to consummate the
transactions contemplated by this Agreement, including without limitation
the obligation to execute and deliver each of the Operative Agreements to
which any such entity is a party on the Initial Closing Date, is subject to (i)
the accuracy and correctness on the Initial Closing Date of the
representations and warranties of the other parties hereto contained herein,
(ii) the satisfaction of conditions precedent set forth in Section 5.3,
(iii) the accuracy and correctness in all material respects on the Initial
Closing Date of the representations and warranties of the other parties hereto
contained in any other Operative Agreement or certificate delivered
pursuant hereto or thereto, (iv) the performance by the other parties hereto
of their respective agreements contained herein and in the other Operative
Agreements, in each case to be performed by them on or prior to the Initial
Closing Date and (v) the receipt by the Agent of the items required to be
delivered to the Agent pursuant to this Section 6.
SECTION 7. REPRESENTATIONS AND WARRANTIES ON THE INITIAL CLOSING DATE.
7.1. Representations and Warranties of the Holders.
Effective as of the Initial Closing Date, each Holder severally as to
itself, and not jointly, represents and warrants to each of the other parties
hereto that:
(a) It is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation and has
the power and authority to carry on its business as now conducted
and to enter into and perform its obligations under each Operative
Agreement to which it is or is to be a party and each other
agreement, instrument and document to be executed and delivered
by it on or before each Closing Date in connection with or as
contemplated by each such Operative Agreement to which it is or
will be a party;
(b) The execution, delivery and performance of each
Operative Agreement to which it is or will be a party have been
duly authorized by all necessary action on its part and neither the
execution and delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it with any
of the terms and provisions thereof (i) requires or will require any
approval of stockholders of, or approval or consent of any trustee
or holder of any indebtedness or obligations of, such Holder which
have not been obtained, (ii) contravenes or will contravene any
Legal Requirement applicable to or binding on it (except no
representation or warranty is made as to any Legal Requirement to
which it may be subject solely as a result of the activities of the
Lessee) as of the date hereof, (iii) contravenes or will contravene or
result in any breach of or constitute any default under, or result in
the creation of any Lien upon any Property, any Equipment or any
of the Improvements (other than Liens created by the Operative
Agreements) under its certificate of incorporation or other
equivalent charter documents, as the case may be, by-laws or any
indenture, mortgage, chattel mortgage, deed of trust, conditional
sales contract, bank loan or credit agreement or other agreement or
instrument to which it is a party or by which it or its properties is
bound or affected or (iv) does or will require any Governmental
Action by any Governmental Authority (other than arising solely
by reason of the business, condition or activities of the Lessee or
any Affiliate thereof or the construction or use of the Properties,
the Equipment or the Improvements);
(c) Each Operative Agreement to which it is or will be
a party has been, or will be, duly executed and delivered by it and
constitutes, or upon execution and delivery will constitute, a legal,
valid and binding obligation enforceable against it in accordance
with the terms thereof;
(d) There is no action or proceeding pending or, to its
knowledge, threatened against it before any Governmental
Authority that questions the validity or enforceability of any
Operative Agreement to which it is or will become a party or that,
if adversely determined, would materially and adversely affect its
ability to perform its obligations under the Operative Agreements
to which it is a party;
(e) It has not assigned or transferred any of its right,
title or interest in or under the Lease except in accordance with the
Operative Agreements;
(f) No Default or Event of Default under the Operative
Agreements attributable to it has occurred and is continuing;
(g) It is not a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of a "holding
company' or a "public utility" within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or a "public
utility" within the meaning of the Federal Power Act, as amended.
It is not an "investment company" or a company controlled by an
"investment company" within the meaning of the Investment
Company Act or an "investment adviser" within the meaning of
the Investment Advisers Act of 1940, as amended;
(h) Except as otherwise contemplated by the Operative
Agreements, it shall not, nor shall it direct the Lessor to, use the
proceeds of any Loan or Holder Advance for any purpose other
than the purchase and/or lease of the Properties, the acquisition and
installation of the Equipment, the construction of Improvements,
the payment of the Transaction Expenses and the fees, expenses
and other disbursements referenced in Section 9.1 of this
Agreement and the payment of the interest on the Loans and the
Holder Yield on the Holder Advances which accrues prior to the
Rent Commencement Date with respect to a particular Property;
and
(i) It is acquiring its interest in the Trust Estate for its
own account for investment and not with a view to any distribution
(as such term is used in Section 2(11) of the Securities Act)
thereof, and if in the future it should decide to dispose of its
interest in the Trust Estate, it understands that it may do so only in
compliance with the Securities Act and the rules and regulations of
the Securities and Exchange Commission thereunder and any
applicable state securities laws. Neither it nor anyone authorized
to act on its behalf has taken or will take any action which would
subject the issuance or sale of any interest in the Property, the
Trust Estate or the Lease to the registration requirements of
Section 5 of the Securities Act. No representation or warranty
contained in this Section 7.1(i) shall include or cover any action or
inaction of the Lessee or any Affiliate thereof whether or not
purportedly on behalf of the Holders, the Borrower or any of their
Affiliates.
7.2. Representations and Warranties of the Borrower.
Effective as of the Initial Closing Date, the Trust Company in its
individual capacity and as the Borrower, as indicated, represents and
warrants to each of the other parties hereto as follows, provided, that the
representations in the following paragraphs (h), (j) and (k) are made solely
in its capacity as the Borrower:
(a) It is a national banking association and is duly
organized and validly existing and in good standing under the laws
of the United States of America and has the power and authority to
enter into and perform its obligations under the Trust Agreement
and (assuming due authorization, execution and delivery of the
Trust Agreement by the Holders) has the corporate and trust power
and authority to act as the Owner Trustee and to enter into and
perform the obligations under each of the other Operative
Agreements to which the Trust Company or the Owner Trustee, as
the case may be, is or will be a party and each other agreement,
instrument and document to be executed and delivered by it on or
before such Closing Date in connection with or as contemplated by
each such Operative Agreement to which the Trust Company or the
Owner Trustee, as the case may be, is or will be a party;
(b) The execution, delivery and performance of each
Operative Agreement to which it is or will be a party, either in its
individual capacity or (assuming due authorization, execution and
delivery of the Trust Agreement by the Holders) as the Owner
Trustee, as the case may be, has been duly authorized by all
necessary action on its part and neither the execution and delivery
thereof, nor the consummation of the transactions contemplated
thereby, nor compliance by it with any of the terms and provisions
thereof (i) does or will require any approval or consent of any
trustee or holders of any of its indebtedness or obligations, (ii) does
or will contravene any Legal Requirement relating to its banking or
trust powers, (iii) does or will contravene or result in any breach of
or constitute any default under, or result in the creation of any Lien
upon any of its property under, (A) its charter or by-laws, or (B)
any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, bank loan or credit agreement or other
agreement or instrument to which it is a party or by which it or its
properties may be bound or affected, which contravention, breach,
default or Lien under clause (B) would materially and adversely
affect its ability, in its individual capacity or as the Owner Trustee,
to perform its obligations under the Operative Agreements to
which it is a party or (iv) does or will require any Governmental
Action by any Governmental Authority regulating its banking or
trust powers;
(c) The Trust Agreement and, assuming the Trust
Agreement is the legal, valid and binding obligation of the
Holders, each other Operative Agreement to which the Trust
Company or the Owner Trustee, as the case may be, is or will be a
party have been, or on or before such Closing Date will be, duly
executed and delivered by the Trust Company or the Owner
Trustee, as the case may be, and the Trust Agreement and each
such other Operative Agreement to which the Trust Company or
the Owner Trustee, as the case may be, is a party constitutes, or
upon execution and delivery will constitute, a legal, valid and
binding obligation enforceable against the Trust Company or the
Owner Trustee, as the case may be, in accordance with the terms
thereof;
(d) There is no action or proceeding pending or, to its
knowledge, threatened to which it is or will be a party, either in its
individual capacity or as the Owner Trustee, before any
Governmental Authority that, if adversely determined, would
materially and adversely affect its ability, in its individual capacity
or as the Owner Trustee, to perform its obligations under the
Operative Agreements to which it is a party or would question the
validity or enforceability of any of the Operative Agreements to
which it is or will become a party;
(e) It has not assigned or transferred any of its right,
title or interest in or under the Lease or the Agency Agreement
except in accordance with the Operative Agreements;
(f) No Default of Event of Default under the Operative
Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative
Agreements, the proceeds of the Loans and Holder Advances shall
not be applied by the Owner Trustee for any purpose other than the
payment of Transaction Expenses and the fees, expenses and other
disbursements referenced in Sections 9.1(a) and (b) of this
Agreement, the purchase and/or lease of the Properties, the
acquisition, installation and testing of the Equipment, the
construction of Improvements and the payment of interest on the
Loans and the payment of the Holder Yield on the Holder
Advances, in each case to the extent accrued under the Credit
Agreement or Trust Agreement (as the case may be) during the
period prior to the Rent Commencement Date with respect to a
particular Property;
(h) Neither the Owner Trustee nor any Person
authorized by the Owner Trustee to act on its behalf has offered or
sold any interest in the Trust Estate or the Notes, or in any similar
security relating to a Property, or in any security the offering of
which for the purposes of the Securities Act would be deemed to
be part of the same offering as the offering of the aforementioned
securities to, or solicited any offer to acquire any of the same from,
any Person other than, in the case of the Notes, the Agent, and
neither the Owner Trustee nor any Person authorized by the Owner
Trustee to act on its behalf will take any action which would
subject, as a direct result of such action alone, the issuance or sale
of any interest in the Trust Estate or the Notes to the provisions of
Section 5 of the Securities Act or require the qualification of any
Operative Agreement under the Trust Indenture Act of 1939, as
amended;
(i) The Owner Trustee's chief place of business, chief
executive office and office where the documents, accounts and
records relating to the transactions contemplated by this
Agreement and each other Operative Agreement are kept are
located at 79 South Main Street, Salt Lake City, Utah 84111;
(j) The Owner Trustee is not engaged principally in,
and does not have as one (1) of its important activities, the business
of extending credit for the purpose of purchasing or carrying any
margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System of the United States),
and no part of the proceeds of the Loans or the Holder Advances
will be used by it to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying
any such margin stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulations G, T, U, or X of
the Board of Governors of the Federal Reserve System of the
United States; and
(k) The Owner Trustee is not an "investment company"
or a company controlled by an "investment company" within the
meaning of the Investment Company Act.
7.3. Representations and Warranties of the Construction
Agent and the Lessee.
Effective as of the Initial Closing Date the Construction Agent and
the Lessee represent and warrant to each of the other parties hereto that:
(a) The Incorporated Representations and Warranties
are true and correct (unless such relate solely to an earlier point in
time) and the Lessee has delivered to the Agent the financial
statements and other reports referred to in Sections 4.3 and 4.4 of
the Lessee Credit Agreement;
(b) The execution and delivery by each of the
Construction Agent and the Lessee of this Agreement and the other
Operative Agreements and the performance by each of the
Construction Agent and the Lessee of its respective obligations
under this Agreement and the other Operative Agreements are
within the corporate powers of each of the Construction Agent and
the Lessee, have been duly authorized by all necessary corporate
action on the part of each of the Construction Agent and the Lessee
(including without limitation any necessary shareholder action),
have received all necessary governmental approval, and do not and
will not (i) violate any Legal Requirement which is binding on the
Construction Agent, the Lessee or any of their Subsidiaries,
(ii) contravene or conflict with, or result in a breach of, any
provision of the Certificate of Incorporation, By-Laws or other
organizational documents of any of the Construction Agent, the
Lessee or any of their Subsidiaries or of any material agreement,
indenture, instrument or other document which is binding on any
of the Construction Agent, the Lessee or any of their Subsidiaries
or (iii) result in, or require, the creation or imposition of any Lien
(other than pursuant to the terms of the Operative Agreements) on
any asset of any of the Construction Agent, the Lessee or any of
their Subsidiaries;
(c) This Agreement is, and upon the execution and
delivery thereof the other Operative Agreements will be, the legal,
valid and binding obligation of each of the Construction Agent and
the Lessee, enforceable against each of the Construction Agent and
the Lessee in accordance with their terms. The Construction Agent
and the Lessee have each executed the various Operative
Agreements required to be executed as of the Initial Closing Date;
(d) Except as described in Exhibit I, there are no
material actions, suits or proceedings pending or to our knowledge,
threatened against the Lessee in any court or before any
Governmental Authority, that concern any Property or the Lessee's
interest therein or that question the validity or enforceability of any
Operative Agreement to which the Lessee is a party or the overall
transaction described in the Operative Agreements to which the
Lessee is a party;
(e) No Governmental Action by any Governmental
Authority or authorization, registration, consent, approval, waiver,
notice or other action by, to or of any other Person is required to
authorize or is required in connection with (i) the execution,
delivery or performance of any Operative Agreement, (ii) the
legality, validity, binding effect or enforceability of any Operative
Agreement or (iii) the acquisition, ownership, construction or
operation of the Properties, in each case, except those which have
been obtained;
(f) Upon the execution and delivery of each Lease
Supplement to the Lease, (i) the Lessee will have unconditionally
accepted the Property subject to the Lease Supplement and will
have a valid and subsisting leasehold interest in such Property,
subject only to the Permitted Liens, and (ii) no offset will exist
with respect to any Rent or other sums payable under the Lease;
(g) Except as otherwise contemplated by the Operative
Agreements, the Construction Agent shall not use the proceeds of
any Holder Advance or Loan for any purpose other than the
purchase of the Properties, the acquisition and installation of the
Equipment, the payment of the Transaction Expenses, fees,
expenses and other disbursements payable by the Lessor under
Sections 9.1(a) and (b), the construction of Improvements and the
testing thereof and the payment of interest on the Loans and Holder
Yield on the Holder Advances, in each case which accrue prior to
the Rent Commencement Date with respect to the Properties;
(h) All information heretofore or contemporaneously
herewith furnished by either the Construction Agent or the Lessee
or any of their Subsidiaries to the Agent, the Owner Trustee, any
Lender or any Holder for purposes of or in connection with this
Agreement and the transactions contemplated hereby is, and all
information hereafter furnished by or on behalf of the Construction
Agent, the Lessee or any of their Subsidiaries to the Agent, the
Owner Trustee, any Lender or any Holder pursuant hereto or in
connection herewith will be, true and accurate in every material
respect on the date as of which such information is dated or
certified, and such information, taken as a whole, does not and will
not omit to state any material fact necessary to make such
information, taken as a whole, not misleading; and
(i) The chief place of business, chief executive office
and office of the Construction Agent and the Lessee where the
documents, accounts and records relating to the transactions
contemplated by this Agreement and each other Operative
Agreement are kept are located at 6800 Paragon Place, Suite 500,
Richmond, Virginia 23230.
7.4. Representations and Warranties of the Agent.
Effective as of the Initial Closing Date, the Agent represents and
warrants to each of the other parties hereto that:
(a) It is a national banking association duly organized
and validly existing under the laws of the United States of America
and has the full power and authority to enter into and perform its
obligations under this Agreement and each other Operative
Agreement to which it is or will be a party;
(b) This Agreement and each other Operative
Agreement to which it is a party have been, or when executed and
delivered will be, duly authorized by all necessary corporate action
on the part of the Agent and have been, or on such Closing Date
will have been, duly executed and delivered by the Agent and,
assuming the due authorization, execution and delivery hereof and
thereof by the other parties hereto and thereto, are, or upon
execution and delivery thereof will be, legal, valid and binding
obligations of the Agent, enforceable against it in accordance with
their respective terms;
(c) The execution, delivery and performance by the
Agent of this Agreement and each other Operative Agreement to
which it is or will be a party do not, and will not contravene the
articles of association or by-laws or other charter documents of the
Agent or any applicable Law of the State of North Carolina or of
the United States of America governing its activities and will not
contravene any provision of, or constitute a default under any
indenture, mortgage, contract or other instrument of which it is a
party or by which it or its properties are bound, or require any
consent or approval of any Governmental Authority under any
applicable law, rule or regulation of the State of North Carolina or
any federal law, rule or regulation of the United States of America
governing its activities; and
(d) Except as otherwise contemplated by the Operative
Agreements, the Agent shall not, nor shall it direct the Lessor to,
use the proceeds of any Loan or Holder Advance, as the case may
be, for any purpose other than the purchase of the Properties, the
acquisition, installation and testing of Equipment, the payment of
the Transaction Expenses, the construction and testing of
Improvements and, during the period prior to the Rent
Commencement Date with respect to a particular Property, (i) the
payment of interest on the Loans (respecting proceeds from Loans)
and (ii) the payment of yield on the Holder Advances (respecting
proceeds from Holder Advances).
SECTION 8. REPRESENTATIONS AND WARRANTIES ON FUNDING DATES.
8.1. Representations and Warranties on Property Closing
Dates.
The Construction Agent and the Lessee hereby represent and
warrant as of each Property Closing Date as follows (which
representations and warranties shall continue until satisfaction of all
obligations of the Lessee and the Construction Agent under the Operative
Agreements):
(a) The representations and warranties of the
Construction Agent and the Lessee set forth in the Operative
Agreements are true and correct in all material respects on and as
of such Property Closing Date as if made on and as of such date.
The Construction Agent and the Lessee are in all material respects
in compliance with their respective obligations under the Operative
Agreements and there exists no Default or Event of Default under
any of the Operative Agreements which is continuing and which
has not been cured within any cure period expressly granted under
the terms of the applicable Operative Agreement or otherwise
waived in accordance with the applicable Operative Agreement.
No Default or Event of Default will occur under any of the
Operative Agreements as a result of, or after giving effect to, the
Advance requested by the Requisition on such Property Closing
Date;
(b) The Properties to be acquired or leased pursuant to a
Ground Lease are being acquired or ground leased at a price that is
not in excess of fair market value or fair market rental value, as the
case may be, and such Properties consist of (i) unimproved Land,
or (ii) Land and existing Improvements thereon which
Improvements are either suitable for occupancy at the time of
acquisition or ground leasing or will be renovated and/or modified
in accordance with the terms of this Agreement. Each of the
Properties is located at the location set forth on the applicable
Requisition, each of which is in one (1) of the Approved States;
(c) Upon the acquisition of each Property on such
Property Closing Date, and at all times thereafter, the Lessor will
have good and marketable fee simple title to such Property, or, if
such Property is the subject of a Ground Lease, the Lessor will
have a leasehold interest enforceable against the ground lessor of
such Property in accordance with the terms of such Ground Lease,
subject only to (i) such Liens referenced in Sections 8.1(k) (i) and
8.1(k) (ii) on such Property Closing Date and (ii) subject to Section
5.8, Permitted Liens after the applicable Property Closing Date;
(d) The execution and delivery of each Operative
Agreement delivered by the Construction Agent and/or the Lessee
on such Property Closing Date and the performance of the
obligations of the Construction Agent and the Lessee under each
Operative Agreement have been duly authorized by all requisite
corporate action of the Construction Agent or the Lessee, as
applicable;
(e) Each Operative Agreement delivered on such
Property Closing Date by the Construction Agent and/or the Lessee
has been duly executed and delivered by the Construction Agent
and/or the Lessee;
(f) Each Operative Agreement delivered by the
Construction Agent and/or the Lessee on such Property Closing
Date is a legal, valid and binding obligation of the Construction
Agent or the Lessee, as applicable, enforceable against the
Construction Agent or the Lessee, as applicable, in accordance
with its respective terms;
(g) No portion of any Property being acquired by the
Lessor on such Property Closing Date is located in an area
identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, or if any such
Property is located in an area identified as a special flood hazard
area by the Federal Emergency Management Agency or other
applicable agency, then flood insurance has been obtained for such
Property in accordance with Section 14.2(b) of the Lease and in
accordance with the National Flood Insurance Act of 1968, as
amended;
(h) The Construction Agent has obtained insurance
coverage for each Property being acquired by the Lessor on such
Property Closing Date which meet the requirements of the Lease
and all of such coverage is in full force and effect;
(i) Each Property being acquired or ground leased by
the Lessor on such Property Closing Date complies with all Legal
Requirements as of such date (including without limitation all
zoning and land use laws and Environmental Laws), except to the
extent that failure to comply therewith would not, individually or
in the aggregate, have a Material Adverse Effect;
(j) All utility services and facilities necessary for the
construction and operation of the Improvements and the
installation and operation of the Equipment existing on, or to be
constructed after, such Property Closing Date (including without
limitation gas, electrical, water and sewage services and facilities)
are available at the Land upon which such Improvements exist or
will be constructed prior to the Completion Date for such Property;
(k) (i) The Security Documents create, as security for
the Obligations (as such term is defined in the Security
Agreement), valid and enforceable security interests in, and
Liens on, all of the Collateral, in favor of the Agent, for the
ratable benefit of the Lenders and the Holders, as their
respective interests appear in the Operative Agreements,
and such security interests and Liens are subject to no other
Liens other than Liens that are expressly set forth as title
exceptions on the title commitment issued under Section
5.3(g) with respect to the applicable Property, to the extent
such title commitment has been approved by the Lessor, the
Agent, and the Majority Holders. Upon recordation of the
Mortgage Instrument in the real estate recording office in
the applicable Approved State identified by the
Construction Agent or the Lessee, the Lien created by the
Mortgage Instrument in the real property described therein
shall be a perfected first priority mortgage Lien on such real
property in favor of the Agent, for the ratable benefit of the
Lenders and the Holders, as their respective interests appear
in the Operative Agreements. To the extent that the
security interests in the portion of the Collateral comprised
of personal property can be perfected by filing in the filing
offices in the applicable Approved States or elsewhere
identified by the Construction Agent or the Lessee, upon
filing of the Lender Financing Statements in such filing
offices, the security interests created by the Security
Agreement shall be perfected first priority security interests
in such personal property in favor of the Agent, for the
ratable benefit of the Lenders and the Holders, as their
respective interests appear in the Operative Agreements.
(ii) The Lease Agreement creates, as security for
the obligations of the Lessee under the Lease Agreement,
valid and enforceable security interests in, and Liens on, the
particular Property leased thereunder, in favor of the
Lessor, and such security interests and Liens are subject to
no other Liens other than Liens that are expressly set forth
as title exceptions on the title commitment issued under
Section 5.3(g) with respect to the applicable Property, to
the extent such title commitment has been approved by the
Lessor, the Agent, and the Majority Holders. Upon
recordation of the memorandum of the Lease Agreement
and the memorandum of a Ground Lease in the real estate
recording office in the applicable Approved State identified
by the Construction Agent or the Lessee (to the extent such
Property is subject to a Ground Lease), the Lien created by
the Lease Agreement in the real property described therein
shall be a perfected first priority mortgage Lien on such real
property in favor of the Agent, for the ratable benefit of the
Lenders and the Holders, as their respective interests appear
in the Operative Agreements. To the extent that the
security interests in the portion of the particular Property
comprised of personal property can be perfected by the
filing in the filing offices in the applicable Approved State
or elsewhere identified by the Construction Agent or the
Lessee upon filing of the Lessor Financing Statements in
such filing offices, a security interest created by the Lease
Agreement shall be perfected first priority security interests
in such personal property in favor of the Lessor, which
rights pursuant to the Lessor Financing Statements are
assigned to the Agent, for the ratable benefit of the Lenders
and the Holders, as their respective interests appear in the
Operative Agreements;
(l) All necessary (or in the reasonable opinion of the
Agent, the Majority Holders, the Lessor or any of their respective
counsel, advisable) Governmental Action, in each case required by
any Law enacted, imposed or adopted on or prior to the date
thereof or by any change in facts or circumstances on or prior to
the date thereof, shall have been obtained or made and be in full
force and effect; and
(m) In the aggregate on the Rent Commencement Date
therefor, each particular Property and the property subject to the
corresponding Ground Lease, if any, shall constitute (and for the
duration of the Term shall continue to constitute) all of the
equipment (subject to Section 5.7, excluding fork-lifts), facilities,
rights, other personal property and other real property necessary or
appropriate to operate, utilize, maintain and control such Property
for its originally intended purpose in a commercially reasonable
manner. Furthermore, on the Rent Commencement Date therefor
each particular Property and the property subject to the
corresponding Ground Lease, if any, shall be capable of operating
on an independent, stand alone basis.
8.2. Representations and Warranties Upon Initial Construction Advances.
The Construction Agent and the Lessee hereby represent and
warrant as of each date on which an Initial Construction Advance is made
as follows:
(a) The representations and warranties of the
Construction Agent and the Lessee set forth in the Operative
Agreements are true and correct in all material respects on and as
of the date of such Initial Construction Advance as if made on and
as of such date. The Construction Agent and the Lessee are in all
material respects in compliance with their respective obligations
under the Operative Agreements and there exists no Default or
Event of Default under any of the Operative Agreements. No
Default or Event of Default will occur under any of the Operative
Agreements as a result of, or after giving effect to, the Advance
requested by the Requisition on such date;
(b) The Lessor has good and marketable fee simple title
to each Property, or, if such Property is the subject of a Ground
Lease, the Lessor has a leasehold interest enforceable against the
ground lessor in accordance with the terms of such Ground Lease,
subject only to Permitted Liens;
(c) [Intentionally Omitted]
(d) All consents, licenses, permits, authorizations,
assignments and building permits required as of the date on which
such Advance is made by all Legal Requirements or pursuant to
the terms of any contract, indenture, instrument or agreement for
the acquisition, ownership, construction, completion, occupancy,
operation, leasing or subleasing of each Property with respect to
which an Advance is being made have been obtained and are in full
force and effect, except to the extent that the failure to so obtain
would not, individually or in the aggregate, have a Material
Adverse Effect;
(e) The Construction Agent has obtained insurance
covering the Property which is the subject of such Advance which
meets the requirements of Section 2.6(g) of the Agency Agreement
before commencing construction, repairs or modifications, as the
case may be, and such coverage is in full force and effect;
(f) The Improvements which are the subject of the
Advance, as improved in accordance with the Plans and
Specifications, will comply as of the applicable Completion Date
with all Legal Requirements and Insurance Requirements
(including without limitation all zoning and land use laws and
Environmental Laws), except to the extent the failure to comply
therewith would not, individually or in the aggregate, have a
Material Adverse Effect. The Plans and Specifications have been
or will be prepared in accordance with all applicable Legal
Requirements (including without limitation all applicable
Environmental Laws and building, planning, zoning and fire
codes), except to the extent the failure to comply therewith would
not, individually or in the aggregate, have a Material Adverse
Effect, and upon completion of such Improvements in accordance
with the Plans and Specifications, such Improvements will not
encroach in any manner onto any adjoining land (except as
permitted by express written easements), such Improvements shall
not be subject to any Lien except Permitted Liens and such
Improvements and the use thereof by the Lessee and its agents,
assignees, employees, invitees, lessees, licensees and tenants will
comply as of the applicable Completion Date in all respects with
all applicable Legal Requirements (including without limitation all
applicable Environmental Laws and building, planning, zoning and
fire codes), except to the extent the failure to comply therewith
would not, individually or in the aggregate, have a Material
Adverse Effect. Upon completion of such Improvements in
accordance with the Plans and Specifications, (i) there will be no
defects to such Improvements including without limitation the
plumbing, heating, air conditioning and electrical systems thereof
and (ii) all water, sewer, electric, gas, telephone and drainage
facilities and all other utilities required to adequately service such
Improvements for their intended use will be available pursuant to
adequate permits (including without limitation any that may be
required under applicable Environmental Laws), except to the
extent that such defect or failure to obtain any such permit would
not, individually or in the aggregate, have a Material Adverse
Effect. There is no action, suit or proceeding (including without
limitation any proceeding in condemnation or eminent domain or
under any Environmental Law) pending or, to the best knowledge
of the Lessee or the Construction Agent, overtly threatened which
materially and adversely affects the title to, or the use, operation or
value of, such Properties. No fire or other casualty with respect to
such Properties has occurred which fire or other casualty has had,
individually or in the aggregate, a Material Adverse Effect. All
utilities serving the related Properties, or proposed to serve the
related Properties in accordance with the Plans and Specifications,
are located in (and in the future will be located in) and vehicular
access to such Improvements is provided by (or will be provided
by), either public rights-of-way abutting the related Property or
Appurtenant Rights. All licenses, approvals, authorizations,
consents, permits (including without limitation building,
demolition and environmental permits, licenses, approvals,
authorizations and consents), easements and rights-of-way,
including without limitation proof of dedication, required for (i)
the use, treatment, storage, transport, disposal or disposition of any
Hazardous Substance on, at, under or from the real property
underlying such Improvements during the construction of such
Improvements and the use and operation of such Improvements
following such construction, (ii) the construction of such
Improvements in accordance with the Plans and Specifications and
the Agency Agreement and (iii) the use and operation of such
Improvements following such construction with the applicable
Equipment which such Improvements support for the purposes for
which they were intended have either been obtained from the
appropriate Governmental Authorities having jurisdiction or from
private parties, as the case may be, or will be obtained from the
appropriate Governmental Authorities having jurisdiction or from
private parties, as the case may be, prior to commencing any such
installation and construction or use and operation, as applicable;
(g) The Advance is secured by the Liens of the Security
Agreement and the Mortgage Instruments, and there have been no
Liens against the applicable Equipment or the Improvements or
any other portion of the applicable Property since the filing of the
UCC Financing Statements and such Mortgage Instruments (to the
extent the Agent caused such items to be filed in connection with
the applicable Property Closing Date) other than Permitted Liens;
and
(h) All conditions precedent contained in this
Agreement and in the other Operative Agreements relating to the
initial Advance to the Construction Agent of funds have been
substantially satisfied.
8.3. Representations and Warranties Upon the Date of Each Construction
Advance That Is Not An Initial Construction Advance.
The Construction Agent and the Lessee hereby represent and
warrant as of each date on which a Construction Advance is made, when
such Advance is not an Initial Construction Advance, as follows:
(a) The representations and warranties of the
Construction Agent and the Lessee set forth in the Operative
Agreements (including without limitation the representations and
warranties set forth in Section 8.2) are true and correct in all
material respects on and as of the date of such Construction
Advance as if made on and as of such date. The Construction
Agent and the Lessee are in compliance with their respective
obligations under the Operative Agreements and there exists no
Default or Event of Default under any of the Operative Agreements
which is continuing and which has not been cured within any cure
period expressly granted under the terms of the applicable
Operative Agreement or otherwise waived in accordance with the
applicable Operative Agreement. No Default or Event of Default
will occur under any of the Operative Agreements as a result of, or
after giving effect to, the Advance requested by the Requisition on
such date;
(b) Acquisition, installation and testing of the
Equipment and construction of the Improvements to date has been
performed in a good and workmanlike manner, substantially in
accordance with the Plans and Specifications and in compliance
with all Insurance Requirements and Legal Requirements, except
to the extent noncompliance with any Legal Requirements would
not, individually or in the aggregate, have a Material Adverse
Effect;
(c) All consents, licenses, permits, authorizations,
assignments and building permits required as of the date on which
such Advance is made by all Legal Requirements or pursuant to
the terms of any contract, indenture, instrument or agreement for
the acquisition, installation, testing, ownership, construction,
completion, occupancy, operation, leasing or subleasing of each
Property have been obtained and are in full force and effect except
to the extent the failure to so obtain would not, individually or in
the aggregate, have a Material Adverse Effect;
(d) When completed, the Equipment and the
Improvements shall be wholly within any building restriction lines
and otherwise in compliance with all Insurance Requirements and
applicable Legal Requirements (unless consented to by applicable
Government Authorities or where failure to comply would not
have a Material Adverse Effect), however established; and
(e) The Advance is secured by the Liens of the Security
Agreement and the Mortgage Instruments, and there have been no
Liens against the applicable Equipment or the Improvements or
any other portion of the applicable Property since the filing of the
UCC Financing Statements and such Mortgage Instruments other
than Permitted Liens.
The Construction Agent and the Lessee further acknowledge that
upon the acceptance and use of the funds by the Construction Agent or the
Lessee, as the case may be, on behalf of the Lessor that all such
representations and warranties remain true and correct on the date of such
Advance and that all consents and approvals have been obtained prior to
the date of such Advance.
SECTION 9. PAYMENT OF CERTAIN EXPENSES.
9.1. Transaction Expenses.
(a) The Lessor agrees on the Initial Closing Date, to
pay, or cause to be paid, all Transaction Expenses arising from the
Initial Closing Date, including without limitation all reasonable
fees, expenses and disbursements of the various legal counsels for
the Lessor and the Agent in connection with the transactions
contemplated by the Operative Agreements and incurred in
connection with such Initial Closing Date, all fees, taxes and
expenses for the recording, registration and filing of documents
and all other reasonable fees, expenses and disbursements incurred
in connection with such Initial Closing Date; provided, however,
the Lessor shall pay such amounts described in this Section 9.1(a)
only if (i) such amounts are properly described in a Requisition
delivered on or before the Initial Closing Date, and (ii) funds are
made available by the Lenders and the Holders in connection with
such Requisition in an amount sufficient to allow such payment;
provided, further, in connection with the negotiation, preparation,
execution and delivery of the Operative Agreements on or prior to
the Initial Closing Date, the Lessor shall not be obligated to pay
any fees of Moore and Van Allen, PLLC in excess of $65,000. On
the Initial Closing Date after delivery and receipt of the
Requisition referenced in Section 4.2(a) hereof and satisfaction of
the other conditions precedent for such date, the Holders shall
make Holder Advances and the Lenders shall make Loans to the
Lessor to pay for the Transaction Expenses, fees, expenses and
other disbursements referenced in this Section 9.1(a). The Lessee
agrees to timely pay all amounts referred to in this Section 9.1(a) to
the extent not paid by the Lessor.
(b) Assuming no Default or Event of Default shall have
occurred and be continuing and only for the period prior to the
Rent Commencement Date, the Lessor agrees on each Property
Closing Date, on the date of any Construction Advance and on the
Completion Date to pay, or cause to be paid, all Transaction
Expenses including without limitation all reasonable fees, expenses
and disbursements of the various legal counsels for the Lessor and
the Agent in connection with the transactions contemplated by the
Operative Agreements and billed in connection with such Advance
or such Completion Date, all fees, expenses and disbursements
incurred with respect to the various items referenced in Sections
5.3, 5.4, 5.5 and/or 5.6 (including without limitation any premiums
for title insurance policies and charges for any updates to such
policies) and all other reasonable fees, expenses and disbursements
in connection with such Advance or such Completion Date
including without limitation all expenses relating to and all fees,
taxes and expenses for the recording, registration and filing of
documents and during the Commitment Period, all fees, expenses
and costs referenced in Sections 9.3(a) or (b) and all fees
referenced in Sections 9.3 or 9.4; provided, however, the Lessor
shall pay such amounts described in this Section 9.1(b) only if (i)
such amounts are properly described in a Requisition delivered on
the applicable date and (ii) funds are made available by the
Lenders and the Holders in connection with such Requisition in an
amount sufficient to allow such payment. On each Property
Closing Date, on the date of any Construction Advance or any
Completion Date, after delivery of the applicable Requisition and
satisfaction of the other conditions precedent for such date, the
Holders shall make a Holder Advance and the Lenders shall make
Loans to the Lessor to pay for the Transaction Expenses, fees,
expenses and other disbursements referenced in this Section 9.1(b).
The Lessee agrees to timely pay all amounts referred to in this
Section 9.1(b) to the extent not paid by the Lessor.
9.2. Brokers' Fees and Stamp Taxes.
The Lessee agrees to pay or cause to be paid any brokers' fees and
any and all stamp, transfer, general intangible and other similar taxes, fees
and excises, if any, including without limitation any interest and penalties,
which are payable in connection with the transactions contemplated by
this Agreement and the other Operative Agreements.
9.3. Certain Fees and Expenses.
The Lessee agrees to pay or cause to be paid (a) the initial and
annual Owner Trustee's fee and all reasonable expenses of the Owner
Trustee and any co-trustees (including without limitation reasonable
counsel fees and expenses) or any successor owner trustee, for acting as
the owner trustee under the Trust Agreement, (b) all reasonable costs and
expenses incurred by the Construction Agent, the Lessee, the Agent, the
Lenders, the Holders or the Lessor in entering into any Lease Supplement
and any future amendments or supplements with respect to any of the
Operative Agreements, whether or not such Lease Supplement,
amendments or supplements are ultimately entered into, or giving or
withholding of waivers of consents hereto or thereto, which have been
requested by the Lessor, the Lenders, the Holders, the Construction Agent,
the Lessee, or the Agent, (c) all reasonable costs and expenses incurred by
the Lessor, the Holders, the Lenders or the Agent in connection with any
exercise of remedies under any Operative Agreement or any purchase of
any Property by the Construction Agent and/or the Lessee and (d) all
reasonable costs and expenses incurred by the Construction Agent, the
Lessee, the Agent, the Lenders, the Majority Holders or the Lessor in
connection with any transfer or conveyance of any Property, whether or
not such transfer or conveyance is ultimately accomplished.
9.4. Unused Fee.
During the Commitment Period, the Lessee agrees to pay to the
Agent for the account of (a) the Lenders, respectively, an unused fee (the
"Lender Unused Fee") equal to the product of the average daily Available
Commitment of each Lender during the Commitment Period multiplied by
a rate of .125% per annum and (b) the Holders, respectively, an unused fee
(the "Holder Unused Fee") equal to the product of the average daily
unfunded portion of the Holder Commitment of each Holder during the
Commitment Period multiplied by a rate of .125% per annum. Such
Unused Fees shall be calculated on the basis of a year of three hundred
sixty (360) days for the actual days elapsed and shall be payable quarterly
in arrears on each Unused Fee Payment Date. If all or a portion of any
such Unused Fee shall not be paid when due, such overdue amount shall
bear interest, payable by the Lessee on demand, at a rate per annum equal
to the ABR (or in the case of Holder Yield, the ABR plus the Applicable
Percentage for Eurodollar Holder Advances) plus two percent (2%) from
the date of such non-payment until such amount is paid in full (as well as
before judgment).
SECTION 10. OTHER COVENANTS AND AGREEMENTS.
10.1. Cooperation with the Construction Agent or the Lessee.
The Holders, the Lessor (at the direction of the Majority Holders)
and the Agent shall, to the extent reasonably requested by the Construction
Agent or the Lessee (but without assuming additional liabilities on account
thereof), at the Construction Agent's or the Lessee's expense cooperate
with the Construction Agent or the Lessee in connection with its covenants
contained herein including without limitation at any time and from time to
time, upon the request of the Construction Agent or the Lessee to promptly
and duly execute and deliver any and all such further instruments,
documents and financing statements (and continuation statements related
thereto) as the Construction Agent or the Lessee may reasonably request in
order to perform such covenants.
10.2. Covenants of the Owner Trustee and the Holders.
Each of the Owner Trustee and the Holders hereby agrees that so
long as this Agreement is in effect:
(a) Neither the Owner Trustee (in its trust capacity or in
its individual capacity) nor any Holder will create or permit to exist
at any time, and each of them will, at its own cost and expense,
promptly take such action as may be necessary duly to discharge,
or to cause to be discharged, all Lessor Liens on the Properties
attributable to it; provided, however, that the Owner Trustee and
the Holders shall not be required to so discharge any such Lessor
Lien while the same is being contested in good faith by appropriate
proceedings diligently prosecuted so long as such proceedings
shall not materially and adversely affect the rights of the Lessee
under the Lease and the other Operative Documents or involve any
material danger of impairment of the Liens of the Security
Documents or of the sale, forfeiture or loss of, and shall not
interfere with the use or disposition of, any Property or title thereto
or any interest therein or the payment of Rent;
(b) Without prejudice to any right under the Trust
Agreement of the Owner Trustee to resign (subject to requirement
set forth in the Trust Agreement that such resignation shall not be
effective until a successor shall have agreed to accept such
appointment), or the Holders' rights under the Trust Agreement to
remove the institution acting as the Owner Trustee (after consent to
such removal by the Agent as provided in the Trust Agreement),
each of the Owner Trustee and the Holders hereby agrees with the
Lessee and the Agent (i) not to terminate or revoke the trust created
by the Trust Agreement except as permitted by Article VIII of the
Trust Agreement, (ii) not to amend, supplement, terminate or
revoke or otherwise modify any provision of the Trust Agreement
in such a manner as to adversely affect the rights of any such party
without the prior written consent of such party and (iii) to comply
with all of the terms of the Trust Agreement, the nonperformance
of which would adversely affect such party;
(c) The Owner Trustee or any successor may resign or
be removed by the Holders as the Owner Trustee, a successor
Owner Trustee may be appointed and a corporation may become
the Owner Trustee under the Trust Agreement, only in accordance
with the provisions of Article IX of the Trust Agreement and, with
respect to such appointment, with the consent of the Lessee, which
consent shall not be unreasonably withheld or delayed;
(d) The Owner Trustee, in its capacity as the Owner
Trustee under the Trust Agreement, and not in its individual
capacity, shall not contract for, create, incur or assume any
Indebtedness, or enter into any business or other activity or enter
into any contracts or agreements, other than pursuant to or under
the Operative Agreements;
(e) The Holders will not instruct the Owner Trustee to
take any action in violation of the terms of any Operative
Agreement;
(f) Neither any Holder nor the Owner Trustee shall (i)
commence any case, proceeding or other action with respect to the
Owner Trustee under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization, arrangement, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (ii)
seek appointment of a receiver, trustee, custodian or other similar
official with respect to the Owner Trustee or for all or any
substantial benefit of the creditors of the Owner Trustee; and
neither any Holder nor the Owner Trustee shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in this paragraph;
(g) The Owner Trustee shall give prompt notice to the
Lessee, the Holders and the Agent if the Owner Trustee's chief
place of business or chief executive office, or the office where the
records concerning the accounts or contract rights relating to any
Property are kept, shall cease to be located at 79 South Main
Street, Salt Lake City, Utah 84111, or if it shall change its name;
and
(h) The Owner Trustee (i) shall take such actions and
shall refrain from taking such actions with respect to the Operative
Agreements and/or relating to any Property and shall grant such
approvals and otherwise act or refrain from acting with respect to
the Operative Agreements and/or relating to any Property in each
case as directed in writing by the Agent (upon the direction of the
Majority Secured Parties) or, in connection with Section 10.5
hereof, the Lessee; and (ii) shall not take any action, grant any
approvals or otherwise act under or with respect to the Operative
Agreements and/or any matters relating to any Property without
first obtaining the prior written consent of the Agent (upon the
direction of the Majority Secured Parties); provided, however, that
notwithstanding the foregoing provisions of this subparagraph (h)
the Owner Trustee, the Agent, the Lenders and the Holders each
acknowledge, covenant and agree that, with respect to all matters
under the Operative Agreements that require the consent and/or
concurrence of all of the Lenders pursuant to the terms of Section
9.1 of the Credit Agreement (the "Unanimous Vote Matters"),
neither the Owner Trustee nor the Agent shall act or refrain from
acting with respect to any Unanimous Vote Matter until such party
has received the approval of each Lender and each Holder with
respect thereto.
10.3. The Lessee Covenants, Consent and Acknowledgment.
(a) The Lessee acknowledges and agrees that the
Owner Trustee, pursuant to the terms and conditions of the
Security Agreement and the Mortgage Instruments, shall create
Liens respecting the various personal property, fixtures and real
property described therein in favor of the Agent. The Lessee
hereby irrevocably consents to the creation, perfection and
maintenance of such Liens. Each of the Construction Agent and
the Lessee shall, to the extent reasonably requested by any of the
other parties hereto, cooperate with the other parties in connection
with their covenants herein or in the other Operative Agreements
and shall from time to time duly execute and deliver any and all
such future instruments, documents and financing statements (and
continuation statements related thereto) as any other party hereto
may reasonably request.
(b) The Lessor hereby instructs the Lessee, and the
Lessee hereby acknowledges and agrees, that until such time as the
Loans and the Holder Advances are paid in full and the Liens
evidenced by the Security Agreement and the Mortgage
Instruments have been released (i) any and all Rent (excluding
Excepted Payments which shall be payable to each Holder or other
Person as appropriate) and any and all other amounts of any kind
or type under any of the Operative Agreements due and owing or
payable to the Lessor or the Owner Trustee shall instead be paid
directly to the Agent (excluding Excepted Payments which shall be
payable to each Holder or other Person as appropriate) or as the
Agent may direct from time to time for allocation and distribution
in accordance with the procedures set forth in Section 10.7 hereof
and (ii) the Lessee shall cause all notices, certificates, financial
statements, communications and other information which is
delivered, or is required to be delivered, to the Lessor, to also to be
delivered at the same time to the Agent.
(c) The Lessee shall not consent to or permit any
amendment, supplement or other modification of the terms or
provisions of any Operative Agreement without, in each case,
obtaining the prior written consent of the Agent and, to the extent
required by Sections 10.2(h) and 10.6 hereof, each of the Holders
and the Lenders or the Majority Secured Parties, as the case may
be. The Lessee acknowledges that the actions of the Owner
Trustee are subject to the consent of the Agent as set forth in
Section 10.2(h).
(d) The Lessee hereby covenants and agrees to cause an
Appraisal or reappraisal (in form and substance reasonably
satisfactory to the Agent and the Majority Holders and from an
appraiser selected by the Agent and the Majority Holders) to be
issued respecting any Property as requested by the Agent and/or
the Majority Holders from time to time but no more frequently
than once every three (3) years; provided, notwithstanding the
foregoing, the Lessee agrees to cause such Appraisals or
reappraisals to be issued as requested by the Agent and/or the
Majority Holders from time to time (i) at each and every time as
such shall be required to satisfy any regulatory requirements
imposed on the Agent, the Lessor, the Trust Company, any Lender
and/or any Holder and (ii) after the occurrence of an Event of
Default.
(e) The Lessee hereby covenants and agrees that,
except for amounts payable as Basic Rent and as otherwise
expressly specified in the Operative Agreements, any and all
payment obligations owing from time to time under the Operative
Agreements to the Agent, any Lender, any Holder or any other
Person shall (without further action) be deemed to be (i)
obligations payable by the Construction Agent prior to the Rent
Commencement Date for any Property and (ii) Supplemental Rent
obligations payable by the Lessee after the commencement of the
Basic Term for any Property. Without limitation, such obligations
of the Lessee and the Construction Agent shall include
arrangement fees, administrative fees, participation fees,
commitment fees, unused fees, prepayment penalties, breakage
costs, indemnities, trustee fees and transaction expenses incurred
by the parties hereto in connection with the transactions
contemplated by the Operative Agreements.
(f) At any time the Lessor or the Agent is entitled
under the Operative Agreements to possession of a Property or any
component thereof, each of the Construction Agent and the Lessee
hereby covenants and agrees, at its own cost and expense, to
assemble and make the same available to the Agent (on behalf of
the Lessor).
(g) The Lessee hereby covenants and agrees that
Equipment respecting any individual parcel of Property shall at no
time constitute in excess of ten percent (10%) of the aggregate
Advances respecting such parcel of Property funded at such time
under the Operative Agreements.
(h) The Lessee hereby covenants and agrees that as of
Completion (i) the Property Cost for each individual parcel of the
Property shall be (A) no less than $4,000,000 and (B) no more than
$32,000,000 and (ii) each parcel of the Property shall be a
Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall
give prompt notice to the Agent if the Lessee's chief place of
business or chief executive office, or the office where the records
concerning the accounts or contract rights relating to any Property
are kept, shall cease to be located at 6800 Paragon Place, Suite
500, Richmond, Virginia 23230 or if it shall change its name.
(j) The Lessee hereby covenants and agrees that the
aggregate Property Cost of Properties purchased by the Lessee
pursuant to its Purchase Option prior to the Expiration Date shall
not exceed ten percent (10%) of the aggregate Property Cost for all
Properties funded during the Commitment Period.
(k) The Lessee shall, on or before the first day of each
fiscal quarter of the Lessee, furnish to the Agent a written notice
setting forth the Lessee's calculation, in reasonable detail, of the
ratio of Funded Indebtedness to Consolidated Total Capital for the
immediately preceding fiscal quarter of the Lessee.
10.4. Sharing of Certain Payments.
Except for Excepted Payments, the parties hereto acknowledge
and agree that all payments due and owing by the Lessee to the Lessor
under the Lease or any of the other Operative Agreements shall be made
by the Lessee directly to the Agent as more particularly provided in
Section 10.3 hereof. The Holders, the Agent, the Lenders and the Lessee
acknowledge the terms of Section 10.7 of this Agreement regarding the
allocation of payments and other amounts made or received from time to
time under the Operative Agreements and agree, that all such payments
and amounts are to be allocated as provided in Section 10.7 of this
Agreement.
10.5. Grant of Easements, etc.
The Agent, the Lenders and the Holders hereby agree that, so long
as no Event of Default shall have occurred and be continuing, the Owner
Trustee shall, from time to time at the request of the Lessee, in connection
with the transactions contemplated by the Agency Agreement, the Lease
or the other Operative Agreements, (i) grant easements and other rights in
the nature of easements with respect to any Property, (ii) release existing
easements or other rights in the nature of easements which are for the
benefit of any Property, (iii) execute and deliver to any Person any
instrument appropriate to confirm or effect such grants or releases, and (iv)
execute and deliver to any Person such other documents or materials in
connection with the acquisition, development, construction, testing or
operation of any Property, including without limitation reciprocal
easement agreements, construction contracts, operating agreements,
development agreements, plats, replats or subdivision documents;
provided, that each of the agreements referred to in this Section 10.5 shall
be of the type normally executed by the Lessee in the ordinary course of
the Lessee's business and shall be on commercially reasonable terms so as
not to diminish the value of any Property in any material respect.
10.6. Appointment by the Agent, the Lenders, the Holders and the Owner
Trustee.
The Holders hereby (a) appoint the Agent to act as collateral agent
for the Holders in connection with the Lien granted by the Security
Documents to secure the Holder Amount and (b) acknowledge and agree
and direct that the rights and remedies of the beneficiaries of the Lien of
the Security Documents shall be exercised by the Agent on behalf of the
Lenders and the Holders as directed from time to time by the Majority
Secured Parties or, pursuant to Section 10.2(h), all of the Lenders and the
Holders, as the case may be; provided, in all cases, the Agent shall allocate
payments and other amounts received in accordance with Section 10.7 of
this Agreement. The Agent is further appointed to provide notices under
the Operative Agreements on behalf of the Owner Trustee (including
without limitation with regard to Allocated Interest and Allocated Return)
and to take such other action under the Operative Agreements on behalf of
the Owner Trustee as the Agent and the Owner Trustee shall agree from
time to time. The Agent hereby accepts such appointments. For purposes
hereof, the provisions of Section 7 of the Credit Agreement, together with
such other terms and provisions of the Credit Agreement and the other
Operative Agreements as required for the full interpretation and operation
of Section 7 of the Credit Agreement are hereby incorporated by reference
as if restated herein for the mutual benefit of the Agent and each Holder as
if each Holder were a Lender thereunder. Outstanding Holder Advances
and outstanding Loans shall each be taken into account for purposes of
determining Majority Secured Parties. Further, the Agent shall be entitled
to take such action on behalf of the Owner Trustee as is delegated to the
Agent under any Operative Agreement (whether express or implied) as
may be reasonably incidental thereto. The Agent further agrees to forward
copies of all material notices, documents and other items received by the
Agent under the Operative Agreements to each Lender, each Holder and
the Lessor (materiality to be determined by the Agent, in its reasonable
discretion). The parties hereto hereby agree to the provisions contained in
this Section 10.6. Any appointment of a successor agent under Section 7.9
of the Credit Agreement shall also be effective as an appointment of a
successor agent for purposes of this Section 10.6.
10.7. Collection and Allocation of Payments and Other Amounts.
(a) The Lessee and the Construction Agent have agreed
pursuant to the terms of this Participation Agreement to pay to (i)
the Agent any and all Rent (excluding Excepted Payments) and
any and all other amounts of any kind or type under any of the
Operative Agreements due and owing or payable to the Lessor or
the Owner Trustee and (ii) each Person as appropriate the Excepted
Payments. Promptly after receipt, the Agent shall apply and
allocate, in accordance with the terms of this Section 10.7, such
amounts received from the Lessee or the Construction Agent and
all other payments, receipts and other consideration of any kind
whatsoever received by the Agent pursuant to the Security
Agreement or otherwise received by the Agent, the Holders or any
of the Lenders in connection with the Collateral, the Security
Documents or any of the other Operative Agreements.
(b) Payments and other amounts received by the Agent
from time to time in accordance with the terms of subparagraph (a)
shall be applied and allocated as follows:
(i) Any such payment or amount identified as
or deemed to be Basic Rent shall be applied and allocated
by the Agent first, ratably to the Lenders and the Holders
for application and allocation to the payment of interest on
the Loans and thereafter the principal of the Loans which is
due and payable on such date and to the payment of
accrued Holder Yield with respect to the Holder Advances
and thereafter the portion of the Holder Advances which is
due on such date; and second, if no Default or Event of
Default is in effect, any excess shall be paid to such Person
or Persons as the Lessee may designate; provided, that if a
Default or Event of Default is in effect, such excess (if any)
shall instead be held by the Agent until the earlier of (I) the
first date thereafter on which no Default or Event of Default
shall be in effect (in which case such payments or returns
shall then be made to such other Person or Persons as the
Lessee may designate) and (II) the Maturity Date or the
Expiration Date, as the case may be (or, if earlier, the date
of any Acceleration), in which case such amounts shall be
applied and allocated in the manner contemplated by
Section 10.7(b)(iv). The Agent shall distribute to (x) the
Lenders, ratably based on their respective Commitments,
all proceeds of Interest Payment Loans which shall be
applied and allocated to the interest on the Loans due and
payable prior to the Rent Commencement Date and (y) the
Holders, based on their respective Holder Commitments, all
proceeds of Holder Advances made with respect to the
aggregate amount of Holder Yield on the Holder Advances
prior to the Rent Commencement Date.
(ii) If on any date the Agent or the Lessor shall
receive any amount in respect of (A) any Casualty or
Condemnation pursuant to Sections 15.1(a) or 15.1(g) of
the Lease (excluding any payments in respect thereof which
are payable to the Lessee in accordance with the Lease), or
(B) the Termination Value in connection with the delivery
of a Termination Notice pursuant to Article XVI of the
Lease, or (C) the Termination Value in connection with the
exercise of the Purchase Option under Section 20.1 of the
Lease or the exercise of the option of the Lessor to transfer
the Properties to the Lessee pursuant to Section 20.3 of the
Lease, or (D) any payment required to be made or elected
to be made by the Construction Agent to the Lessor
pursuant to the terms of the Agency Agreement, then in
each case, the Lessor shall be required to pay such amount
received (1) if no Acceleration has occurred, to prepay the
principal balance of the Loans and the Holder Advances, on
a pro rata basis, a portion of such amount to be distributed
to the Lenders and the Holders, such amount computed (x)
in the case of the Loans, based on the ratio of the Loans to
the aggregate Property Cost and (y) in the case of the
Holder Advances, based on the ratio of the Holder
Advances to the aggregate Property Cost or (2) if an
Acceleration has occurred, to apply and allocate the
proceeds respecting Sections 10.7(b)(ii)(A) - (D) in
accordance with Section 10.7(b)(iii) hereof.
(iii) Subject to Section 10.7(c), an amount equal
to any payment identified as proceeds of the sale (or lease
upon the exercise of remedies) of the Properties or any
portion thereof, whether pursuant to Article XXII of the
Lease or the exercise of remedies under the Security
Documents or otherwise, the execution of remedies set
forth in Section 17.6 of the Lease and any payment in
respect of excess wear and tear pursuant to Section 22.3 of
the Lease (whether such payment relates to a period before
or after the Construction Period Termination Date) shall be
applied and allocated by the Agent first, ratably to the
payment of the principal and interest of the Tranche B
Loans then outstanding, second, ratably to the payment to
the Holders of an amount not to exceed the outstanding
principal balance of all Holder Advances plus all
outstanding Holder Yield with respect to such outstanding
Holder Advances, third, to the extent such amount exceeds
the maximum amount to be returned pursuant to the
foregoing provisions of this paragraph (iii), ratably to the
payment of the principal and interest of the Tranche A
Loans then outstanding, fourth, to any and all other
amounts owing under the Operative Agreements to the
Lenders under the Tranche B Loans, fifth, to any and all
other amounts owing under the Operative Agreements to
the Holders, sixth, to any and all other amounts owing
under the Operative Agreements to the Lenders under the
Tranche A Loans, and seventh, to the extent moneys remain
after application and allocation pursuant to clauses first
through sixth above, to the Owner Trustee for application
and allocation to any and all other amounts owing to the
Holders or the Owner Trustee and as the Owner Trustee
and the Holders shall determine; provided, where no Event
of Default shall exist and be continuing and a prepayment
is made for any reason with respect to less than the full
amount of the outstanding principal amount of the Loans
and the outstanding Holder Advances, the proceeds shall be
applied and allocated ratably to the Lenders and to the
Holders based on the ratio of the outstanding principal
balance of the Loans and the outstanding Holder Advances
to the aggregate of such outstanding amounts of the Loans
and the Holder Advances.
(iv) Subject to Section 10.7(c), an amount equal
to (A) any such payment identified as a payment pursuant
to Section 22.1(b) of the Lease (or otherwise) of the
Maximum Residual Guarantee Amount (and any such
lesser amount as may be required by Section 22.1(b) of the
Lease) in respect of the Properties and (B) any other
amount payable upon any exercise of remedies after the
occurrence of an Event of Default not covered by
Section 10.7(b)(i) or (iii) above (including without
limitation any amount received in connection with an
Acceleration which does not represent proceeds from the
sale or liquidation of the Properties), shall be applied and
allocated by the Agent first, ratably, to the payment of the
principal and interest balance of Tranche A Loans then
outstanding, second, ratably to the payment of the principal
and interest balance of the Tranche B Loans then
outstanding, third, ratably to the payment of the principal
balance of all Holder Advances plus all outstanding Holder
Yield with respect to such outstanding Holder Advances,
fourth, to the payment of any other amounts owing to the
Lenders hereunder or under any of the other Operative
Agreement, and fifth, to the extent moneys remain after
application and allocation pursuant to clauses first through
fourth above, to the Owner Trustee for application and
allocation to Holder Advances and Holder Yield and any
other amounts owing to the Holders or the Owner Trustee
as the Owner Trustee and the Holders shall determine.
(v) An amount equal to any such payment
identified as Supplemental Rent shall be applied and
allocated by the Agent to the payment of any amounts then
owing to the Agent, the Lenders, the Holders and the other
parties to the Operative Agreements (or any of them) (other
than any such amounts payable pursuant to the preceding
provisions of this Section 10.7(b)) as shall be determined
by the Agent in its reasonable discretion; provided,
however, that Supplemental Rent received upon the
exercise of remedies after the occurrence and continuance
of an Event of Default in lieu of or in substitution of the
Maximum Residual Guarantee Amount or as a partial
payment thereon shall be applied and allocated as set forth
in Section 10.7(b)(iv).
(vi) The Agent in its reasonable judgment shall
identify the nature of each payment or amount received by
the Agent and apply and allocate each such amount in the
manner specified above.
(c) Upon the termination of the Commitments and the
payment in full of the Loans and all other amounts owing by the
Owner Trustee hereunder or under any other Credit Document and
the payment in full of all amounts owing to the Holders and the
Owner Trustee under the Trust Agreement, any moneys remaining
with the Agent shall be returned to the Owner Trustee or such other
Person or Persons as the Owner Trustee may designate. In the
event of an Acceleration it is agreed that, prior to the application
and allocation of amounts received by the Agent in the order
described in Section 10.7(b) above, any such amounts shall first be
applied and allocated to the payment of (i) any and all sums
advanced by the Agent in order to preserve the Collateral or
preserve its security interest therein, (ii) the expenses of retaking,
holding, preparing for sale or lease, selling or otherwise disposing
or realizing on the Collateral, or of any exercise by the Agent of its
rights under the Security Documents, together with reasonable
attorneys' fees and expenses and court costs and (iii) any and all
other amounts reasonably owed to the Agent under or in
connection with the transactions contemplated by the Operative
Agreements (including without limitation any accrued and unpaid
administration fees).
10.8. Release of Properties, etc.
If the Lessee shall at any time purchase any Property pursuant to
the Lease, or the Construction Agent shall purchase any Property pursuant
to the Agency Agreement, or if any Property shall be sold in accordance
with Article XXII of the Lease, then, upon satisfaction by the Owner
Trustee of its obligation to prepay the Loans, Holder Advances and all
other amounts owing to the Lenders and the Holders under the Operative
Agreements, the Agent is hereby authorized and directed to release such
Properties from the Liens created by the Security Documents to the extent
of its interest therein. In addition, upon the termination of the
Commitments and the Holder Commitments and the payment in full of the
Loans, the Holder Advances and all other amounts owing by the Owner
Trustee hereunder or under any other Operative Agreement the Agent is
hereby authorized and directed to release all of the Properties from the
Liens created by the Security Documents to the extent of its interest
therein. Upon request of the Owner Trustee following any such release,
the Agent shall, at the sole cost and expense of the Lessee, execute and
deliver to the Owner Trustee and the Lessee such documents as the Owner
Trustee or the Lessee shall reasonably request to evidence such release.
SECTION 11. CREDIT AGREEMENT AND TRUST AGREEMENT.
11.1. The Construction Agent's and the Lessee's Credit Agreement Rights.
Notwithstanding anything to the contrary contained in the Credit
Agreement, the Agent, the Lenders, the Holders, the Construction Agent,
the Lessee and the Owner Trustee hereby agree that, prior to the
occurrence and continuation of any Default or Event of Default, the
Construction Agent or the Lessee, as the case may be, shall have the
following rights:
(a) the right and obligation (as more specifically
provided in Section 5.6 hereof) to designate the portion of the
Loans on which interest is due and payable for purposes of the
definition of "Allocated Interest";
(b) the right (i) to give the notice referred to in Section
2.3 of the Credit Agreement, (ii) to designate the account to which
a borrowing under the Credit Agreement is to be credited pursuant
to Section 2.3 of the Credit Agreement and (iii) to provide the
Allocation Notice;
(c) the right to terminate or reduce the Commitments
pursuant to Section 2.5(a) of the Credit Agreement;
(d) the right to exercise the conversion and continuation
options pursuant to Section 2.7 of the Credit Agreement;
(e) the right to receive any certificate issued pursuant to
Section 2.11(a) of the Credit Agreement;
(f) the right to receive any certificate issued pursuant to
Section 2.11(b) of the Credit Agreement;
(g) the right to receive any payment from a Lender
pursuant to Section 2.13(c) of the Credit Agreement;
(h) the right to receive any notice and any certificate, in
each case issued pursuant to Section 2.14(a) of the Credit
Agreement;
(i) the right to replace any Lender pursuant to Section
2.14(b) of the Credit Agreement;
(j) the right to approve any successor agent pursuant to
Section 7.9 of the Credit Agreement;
(k) the right to consent to any assignment by a Lender
to which the Lessor has the right to consent pursuant to Section 9.8
of the Credit Agreement; and
(l) without limiting the foregoing clauses (a) through
(k), and in addition thereto, provided, that no Event of Default then
exists, the Construction Agent or the Lessee, as the case may be,
shall have the right to exercise any other right of the Owner
Trustee under the Credit Agreement upon not less than five (5)
Business Days' prior written notice from the Construction Agent or
the Lessee, as the case may be, to the Owner Trustee and the
Agent.
11.2. The Construction Agent's and the Lessee's Trust Agreement Rights.
Notwithstanding anything to the contrary contained in the Trust
Agreement, the Construction Agent, the Lessee, the Owner Trustee and
the Holders hereby agree that, prior to the occurrence and continuation of
any Default or Event of Default, the Construction Agent or the Lessee, as
the case may be, shall have the following rights:
(a) the right and the obligation (as more specifically
provided in Section 5.6 hereof) to designate the portion of the
Holder Advances on which Holder Yield is due and payable for
purposes of the definition of Allocated Return in Section 3.1(c) of
the Trust Agreement;
(b) the right to exercise the conversion and continuation
options pursuant to Section 3.8 of the Trust Agreement and the
removal options contained in Section 3.11(c) of the Trust
Agreement;
(c) no removal of the Owner Trustee and appointment
of a successor Owner Trustee pursuant to Section 9.1 of the Trust
Agreement shall be made without the prior written consent (not to
be unreasonably withheld or delayed) of the Construction Agent or
the Lessee, as the case may be; and
(d) the Holders and the Owner Trustee shall not amend,
supplement or otherwise modify any provision of the Trust
Agreement in such a manner as to adversely affect the rights of the
Construction Agent or the Lessee, as the case may be, without the
prior written consent (not to be unreasonably withheld or delayed)
of the Construction Agent or the Lessee, as the case may be.
SECTION 12. TRANSFER OF INTEREST.
12.1. Restrictions on Transfer.
Each Lender may assign or transfer all or a portion of its interest
hereunder and under the other Operative Agreements in accordance with
Section 9.8 of the Credit Agreement. The Holders may, directly or
indirectly, assign, convey or otherwise transfer any of their right, title or
interest in or to the Trust Estate or the Trust Agreement with the prior
written consent of the Agent and the Lessee (which consent shall not be
unreasonably withheld or delayed). The Owner Trustee may, subject to
the rights of the Lessee under the Lease and the other Operative
Documents and to the Lien of the applicable Security Documents but only
with the prior written consent of the Majority Lenders and the Majority
Holders (which consent may be withheld by the Majority Lenders and/or
the Majority Holders in their sole discretion) and (provided, no Default or
Event of Default has occurred and is continuing) with the consent of the
Lessee, directly or indirectly, assign, convey, appoint an agent with respect
to enforcement of, or otherwise transfer any of its right, title or interest in
or to any Property, the Lease, the Trust Agreement, this Agreement
(including without limitation any right to indemnification thereunder), or
any other document relating to a Property or any interest in a Property as
provided in the Trust Agreement and the Lease. The provisions of the
immediately preceding sentence shall not apply to the obligations of the
Owner Trustee to transfer Property to the Lessee or a third party purchaser
pursuant to Article XXII of the Lease upon payment for such Property in
accordance with the terms and conditions of the Lease.
12.2. Effect of Transfer.
From and after any transfer effected in accordance with this
Section 12, the transferor shall be released, to the extent of such transfer,
from its liability hereunder and under the other documents to which it is a
party in respect of obligations to be performed on or after the date of such
transfer; provided, however, that any transferor Holder shall remain liable
hereunder and under such other documents to the extent that the transferee
Holder shall not have assumed the obligations of the transferor Holder
thereunder. Upon any transfer by the Owner Trustee, the Lessor, a Holder
or a Lender as above provided, any such transferee shall assume the
obligations of the Owner Trustee, the Lessor, the Holder or the Lender, as
the case may be, and shall be deemed an "Owner Trustee", "Lessor",
"Holder", or "Lender", as the case may be, for all purposes of such
documents and each reference herein to the transferor shall thereafter be
deemed a reference to such transferee for all purposes, except as provided
in the preceding sentence. Notwithstanding any transfer of all or a portion
of the transferor's interest as provided in this Section 12, the transferor
shall be entitled to all benefits accrued and all rights vested prior to such
transfer including without limitation rights to indemnification under any
such document.
SECTION 13. INDEMNIFICATION.
13.1. General Indemnity.
Whether or not any of the transactions contemplated hereby shall
be consummated, the Indemnity Provider hereby assumes liability for and
agrees to defend, indemnify and hold harmless each Indemnified Person
on an After Tax Basis from and against any Claims, which may be
imposed on, incurred by or asserted against an Indemnified Person (by any
third party, including without limitation Claims arising from the
negligence of an Indemnified Person (but not to the extent such Claims
arise from the gross negligence, willful misconduct or willful breach of
such Indemnified Person)) in any way relating to or arising or alleged to
arise out of the execution, delivery, performance or enforcement of this
Agreement, the Lease or any other Operative Agreement or on or with
respect to any Property or any component thereof, including without
limitation Claims in any way relating to or arising or alleged to arise out of
(a) the financing, refinancing, purchase, acceptance, rejection, ownership,
design, construction, refurbishment, development, delivery, acceptance,
nondelivery, leasing, subleasing, possession, use, operation, maintenance
repair, modification, transportation, condition, sale, return, repossession
(whether by summary proceedings or otherwise), or any other disposition
of any Property or any part thereof, including without limitation the
acquisition, holding or disposition of any interest in the Property, lease or
agreement comprising a portion of any thereof; (b) any latent or other
defects in any Property or any portion thereof whether or not discoverable
by an Indemnified Person or the Indemnity Provider; (c) a violation of
Environmental Laws, Environmental Claims or other loss of or damage to
any property or the environment relating to the Property, the Lease, the
Agency Agreement or the Indemnity Provider; (d) the Operative
Agreements, or any transaction contemplated thereby; (e) any breach by
the Indemnity Provider of any of its representations or warranties under
the Operative Agreements to which the Indemnity Provider is a party or
failure by the Indemnity Provider to perform or observe any covenant or
agreement to be performed by it under any of the Operative Agreement; (f)
the transactions contemplated hereby or by any other Operative
Agreement, in respect of the application of Parts 4 and 5 of Subtitle B of
Title I of ERISA; and (g) personal injury, death or property damage,
including without limitation Claims based on strict or absolute liability in
tort.
If a written Claim is made against any Indemnified Person or if any
proceeding shall be commenced against such Indemnified Person
(including without limitation a written notice of such proceeding), for any
Claim, such Indemnified Person shall promptly notify the Indemnity
Provider in writing and shall not take action with respect to such Claim
without the consent of the Indemnity Provider for thirty (30) days after the
receipt of such notice by the Indemnity Provider; provided, however, that
in the case of any such Claim, if action shall be required by law or
regulation to be taken prior to the end of such period of thirty (30) days,
such Indemnified Person shall endeavor to, in such notice to the Indemnity
Provider, inform the Indemnity Provider of such shorter period, and no
action shall be taken with respect to such Claim without the consent of the
Indemnity Provider before seven (7) days before the end of such shorter
period; provided, further, that the failure of such Indemnified Person to
give the notices referred to in this sentence shall not diminish the
Indemnity Provider's obligation hereunder except to the extent such
failure precludes in all respects the Indemnity Provider from contesting
such Claim.
If, within thirty (30) days of receipt of such notice from the
Indemnified Person (or such shorter period as the Indemnified Person has
notified the Indemnity Provider is required by law or regulation for the
Indemnified Person to respond to such Claim), the Indemnity Provider
shall request in writing that such Indemnified Person respond to such
Claim, the Indemnified Person shall, at the expense of the Indemnity
Provider, in good faith conduct and control such action (including without
limitation by pursuit of appeals) (provided, however, that (A) if such
Claim, in the Indemnity Provider's reasonable discretion, can be pursued
by the Indemnity Provider on behalf of or in the name of such Indemnified
Person, the Indemnified Person, at the Indemnity Provider's request, shall
allow the Indemnity Provider to conduct and control the response to such
Claim and (B) in the case of any Claim, the Indemnified Person may
request the Indemnity Provider to conduct and control the response to such
Claim (with counsel to be selected by the Indemnity Provider and
consented to by such Indemnified Person, such consent not to be
unreasonably withheld; provided, however, that any Indemnified Person
may retain separate counsel at the expense of the Indemnity Provider in
the event of a conflict)) by, in the sole discretion of the Person conducting
and controlling the response to such Claim (1) resisting payment thereof,
(2) not paying the same except under protest, if protest is necessary and
proper, (3) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings, or
(4) taking such other action as is reasonably requested by the Indemnity
Provider from time to time.
The party controlling the response to any Claim shall consult in
good faith with the non-controlling party and shall keep the non-
controlling party reasonably informed as to the conduct of the response to
such Claim; provided, that all decisions ultimately shall be made in the
discretion of the controlling party. The parties agree that an Indemnified
Person may at any time decline to take further action with respect to the
response to such Claim and may settle such Claim if such Indemnified
Person shall waive its rights to any indemnity from the Indemnity Provider
that otherwise would be payable in respect of such Claim (and any future
Claim, the pursuit of which is precluded by reason of such resolution of
such Claim) and shall pay to the Indemnity Provider any amount
previously paid or advanced by the Indemnity Provider pursuant to this
Section 13.1 by way of indemnification or advance for the payment of an
amount regarding such Claim.
Notwithstanding the foregoing provisions of this Section 13.1, an
Indemnified Person shall not be required to take any action and no
Indemnity Provider shall be permitted to respond to any Claim in its own
name or that of the Indemnified Person unless (A) the Indemnity Provider
shall have agreed to pay and shall pay to such Indemnified Person on
demand and on an After Tax Basis all reasonable costs, losses and
expenses that such Indemnified Person actually incurs in connection with
such Claim, including without limitation all reasonable legal, accounting
and investigatory fees and disbursements and, if the Indemnified Person
has informed the Indemnity Provider (in its initial notice of the Claim) that
it intends to contest such Claim (whether or not the control of the contest
is then assumed by the Indemnity Provider), the Indemnity Provider shall
have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the
case of a Claim that must be pursued in the name of an Indemnified
Person (or an Affiliate thereof), the amount of the potential indemnity
(taking into account all similar or logically related Claims that have been
or could be raised for which the Indemnity Provider may be liable to pay
an indemnity under this Section 13.1) exceeds $10,000, (C) the
Indemnified Person shall have reasonably determined that the action to be
taken will not result in any material danger of sale, forfeiture or loss of the
Property, or any part thereof or interest therein, will not interfere with the
payment of Rent, and will not result in risk of criminal liability, (D) if
such Claim shall involve the payment of any amount prior to the
resolution of such Claim, the Indemnity Provider shall provide to the
Indemnified Person an interest-free advance in an amount equal to the
amount that the Indemnified Person is required to pay (with no additional
net after-tax cost to such Indemnified Person), (E) in the case of a Claim
that must be pursued in the name of an Indemnified Person (or an Affiliate
thereof), the Indemnity Provider shall have provided to such Indemnified
Person an opinion of independent counsel selected by the Indemnified
Person and reasonably satisfactory to the Indemnity Provider stating that a
reasonable basis exists to contest such Claim (or, in the case of an appeal
of an adverse determination, an opinion of such counsel to the effect that
the position asserted in such appeal will more likely than not prevail) and
(F) no Event of Default shall have occurred and be continuing. In no
event shall an Indemnified Person be required to appeal an adverse judicial
determination to the United States Supreme Court. In addition, an
Indemnified Person shall not be required to contest any Claim in its name
(or that of an Affiliate) if the subject matter thereof shall be of a
continuing nature and shall have previously been decided adversely by a
court of competent jurisdiction pursuant to the contest provisions of this
Section 13.1, unless there shall have been a change in law (or
interpretation thereof) and the Indemnified Person shall have received, at
the Indemnity Provider's expense, an opinion of independent counsel
selected by the Indemnified Person and reasonably acceptable to the
Indemnity Provider stating that as a result of such change in law (or
interpretation thereof), it is more likely than not that the Indemnified
Person will prevail in such contest.
13.2. General Tax Indemnity.
(a) The Indemnity Provider shall pay and assume
liability for, and does hereby agree to indemnify, protect and
defend each Property and all Indemnified Persons, and hold them
harmless against, all Impositions on an After Tax Basis, and all
payments pursuant to the Operative Agreements shall be made free
and clear of and without deduction for any and all present and
future Impositions.
(b) Notwithstanding anything to the contrary in Section
13.2(a) hereof, the following shall be excluded from the indemnity
required by Section 13.2(a):
(i) Taxes (other than Taxes that are, or are in
the nature of, sales, use, rental, value added, transfer or
property taxes) that are imposed on a Indemnified Person
(other than the Lessor) by the United States federal
government that are based on or measured by the net
income (including without limitation taxes based on capital
gains and minimum taxes) of such Person; provided, that
this clause (i) shall not be interpreted to prevent a payment
from being made on an After Tax Basis if such payment is
otherwise required to be so made;
(ii) Taxes (other than Taxes that are, or are in
the nature of, sales, use, rental, value added, transfer or
property taxes) that are imposed on any Indemnified Person
(other than the Lessor) by any state or local jurisdiction or
taxing authority within any state or local jurisdiction and
that are based upon or measured by the net income
(including, without limitation, taxes based on capital gains
and minimum taxes) of such Person; provided that such
Taxes shall not be excluded under this subparagraph (ii) to
the extent such Taxes would have been imposed had the
location, possession or use of any Property in, the location
or the operation of the Lessee in, or the Lessee's making
payments under the Operative Agreements from, the
jurisdiction imposing such Taxes been the sole connection
between such Indemnified Person and such jurisdiction;
provided, further, that this clause (ii) shall not be
interpreted to prevent a payment from being made on an
After Tax Basis if such payment is otherwise required to be
so made;
(iii) any Tax to the extent it relates to any act,
event or omission that occurs after the termination of the
Lease and redelivery or sale of the property in accordance
with the terms of the Lease (but not any Tax that relates to
such termination, redelivery or sale and/or to any period
prior to such termination, redelivery or sale); and
(iv) any Taxes which are imposed on an
Indemnified Person as a result of the gross negligence or
willful misconduct of such Indemnified Person itself (as
opposed to gross negligence or willful misconduct imputed
to such Indemnified Person), but not Taxes imposed as a
result of ordinary negligence of such Indemnified Person;
(c) (i) Subject to the terms of Section 13.2(f), the
Indemnity Provider shall pay or cause to be paid all
Impositions directly to the taxing authorities where feasible
and otherwise to the Indemnified Person, as appropriate,
and the Indemnity Provider shall at its own expense, upon
such Indemnified Person's reasonable request, furnish to
such Indemnified Person copies of official receipts or other
satisfactory proof evidencing such payment.
(ii) In the case of Impositions for which no
contest is conducted pursuant to Section 13.2(f) and which
the Indemnity Provider pays directly to the taxing
authorities, the Indemnity Provider shall pay such
Impositions prior to the latest time permitted by the
relevant taxing authority for timely payment. In the case of
Impositions for which the Indemnity Provider reimburses
an Indemnified Person, the Indemnity Provider shall do so
within thirty (30) days after receipt by the Indemnity
Provider of demand by such Indemnified Person describing
in reasonable detail the nature of the Imposition and the
basis for the demand (including without limitation the
computation of the amount payable), accompanied by
receipts or other evidence reasonably satisfactory to the
Indemnity Provider. In the case of Impositions for which a
contest is conducted pursuant to Section 13.2(f), the
Indemnity Provider shall pay such Impositions or
reimburse such Indemnified Person for such Impositions, to
the extent not previously paid or reimbursed pursuant to
subsection (a), prior to the latest time permitted by the
relevant taxing authority for timely payment after
conclusion of all contests under Section 13.2(f).
(iii) At the Indemnity Provider's request, the
amount of any indemnification payment by the Indemnity
Provider pursuant to subsection (a) shall be verified and
certified by an independent public accounting firm
mutually acceptable to the Indemnity Provider and the
Indemnified Person. The fees and expenses of such
independent public accounting firm shall be paid by the
Indemnity Provider unless such verification shall result in
an adjustment in the Indemnity Provider's favor of fifteen
percent (15%) or more of the payment as computed by the
Indemnified Person, in which case such fee shall be paid by
the Indemnified Person.
(d) The Indemnity Provider shall be responsible for
preparing and filing any real and personal property or ad valorem
tax returns in respect of each Property. In case any other report or
tax return shall be required to be made with respect to any
obligations of the Indemnity Provider under or arising out of
subsection (a) and of which the Indemnity Provider has knowledge
or should have knowledge, the Indemnity Provider, at its sole cost
and expense, shall notify the relevant Indemnified Person of such
requirement and (except if such Indemnified Person notifies the
Indemnity Provider that such Indemnified Person intends to file
such report or return) (A) to the extent required or permitted by and
consistent with Legal Requirements, make and file in Indemnity
Provider's name such return, statement or report; and (B) in the
case of any other such return, statement or report required to be
made in the name of such Indemnified Person, advise such
Indemnified Person of such fact and prepare such return, statement
or report for filing by such Indemnified Person or, where such
return, statement or report shall be required to reflect items in
addition to any obligations of the Indemnity Provider under or
arising out of subsection (a), provide such Indemnified Person at
the Indemnity Provider's expense with information sufficient to
permit such return, statement or report to be properly made with
respect to any obligations of the Indemnity Provider under or
arising out of subsection (a). Such Indemnified Person shall, upon
the Indemnity Provider's request and at the Indemnity Provider's
expense, provide any data maintained by such Indemnified Person
(and not otherwise available to or within the control of the
Indemnity Provider) with respect to each Property which the
Indemnity Provider may reasonably require to prepare any required
tax returns or reports.
(e) As between the Indemnity Provider on one (1) hand,
and the Lessor or the Agent, any Lender or any Holder on the other
hand, the Indemnity Provider shall be responsible for, and the
Indemnity Provider shall indemnify and hold harmless the Lessor,
the Agent, each Lender and each Holder (without duplication of
any indemnification required by subsection (a)) on an After Tax
Basis against, any obligation for United States or foreign
withholding taxes imposed in respect of the interest payable on the
Notes or with respect to Rent payments under the Lease (and, if the
Lessor, the Agent, any Lender or any Holder receives a demand for
such payment from any taxing authority, the Indemnity Provider
shall discharge such demand on behalf of the Lessor, the Agent,
such Lender or such Holder); provided, however, that the right of
any Lender to make a claim for indemnification under this Section
13.2(e) is subject to the compliance by such Lender with the
requirements of Section 2.13 of the Credit Agreement.
(f) (i) If a written Claim is made against any
Indemnified Person or if any proceeding shall be
commenced against such Indemnified Person (including
without limitation a written notice of such proceeding), for
any Impositions, such Indemnified Person shall promptly
notify the Indemnity Provider in writing and shall not take
action with respect to such Claim or proceeding without the
consent of the Indemnity Provider for thirty (30) days after
the receipt of such notice by the Indemnity Provider;
provided, however, that in the case of any such Claim or
proceeding, if action shall be required by law or regulation
to be taken prior to the end of such period of thirty (30)
days, such Indemnified Person shall, in such notice to the
Indemnity Provider, inform the Indemnity Provider of such
shorter period, and no action shall be taken with respect to
such Claim or proceeding without the consent of the
Indemnity Provider before seven (7) days before the end of
such shorter period; provided, further, that the failure of
such Indemnified Person to give the notices referred to this
sentence shall not diminish the Indemnity Provider's
obligation hereunder except to the extent such failure
precludes in all respects the Indemnity Provider from
contesting such Claim.
(ii) If, within thirty (30) days of receipt of such
notice from the Indemnified Person (or such shorter period
as the Indemnified Person has notified the Indemnity
Provider is required by law or regulation for the
Indemnified Person to commence such contest), the
Indemnity Provider shall request in writing that such
Indemnified Person contest such Imposition, the
Indemnified Person shall, at the expense of the Indemnity
Provider, in good faith conduct and control such contest
(including without limitation by pursuit of appeals) relating
to the validity, applicability or amount of such Impositions
(provided, however, that (A) if such contest involves a tax
other than a tax on net income and can be pursued
independently from any other proceeding involving a tax
liability of such Indemnified Person that is not covered by
the indemnities provided by the Indemnity Provider, the
Indemnified Person, at the Indemnity Provider's request,
shall allow the Indemnity Provider (and the Indemnity
Provider shall be obligated) to conduct and control such
contest and (B) in the case of any contest, the Indemnified
Person may request the Indemnity Provider to conduct and
control such contest (with counsel to be selected by the
Indemnity Provider and consented to by such Indemnified
Person, such consent not to be unreasonably withheld;
provided, however, that any Indemnified Person may retain
separate counsel at the expense of the Indemnity Provider
in the event of a conflict)) by, in the sole discretion of the
Person conducting and controlling such contest, (1)
resisting payment thereof, (2) not paying the same except
under protest, if protest is necessary and proper, (3) if the
payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial
proceedings, or (4) taking such other action as is reasonably
requested by the Indemnity Provider from time to time.
(iii) The party controlling the contest of any
Imposition shall consult in good faith with the non-
controlling party and shall keep the non-controlling party
reasonably informed as to the conduct of such contest;
provided, that all decisions ultimately shall be made in the
sole discretion of the controlling party. The parties agree
that an Indemnified Person may at any time decline to take
further action with respect to the contest of any Imposition
and may settle such contest if such Indemnified Person
shall waive its rights to any indemnity from the Indemnity
Provider that otherwise would be payable in respect of such
Claim (and any future Claim by any taxing authority, the
contest of which is precluded by reason of such resolution
of such Claim) and shall pay to the Indemnity Provider any
amount previously paid or advanced by the Indemnity
Provider pursuant to this Section 13.2 by way of
indemnification or advance for the payment of an
Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of
this Section 13.2, an Indemnified Person shall not be
required to take any action and no Indemnity Provider shall
be permitted to contest any Impositions in its own name or
that of the Indemnified Person unless (A) the Indemnity
Provider shall have agreed to pay and shall pay to such
Indemnified Person on demand and on an After Tax Basis
all reasonable costs, losses and expenses that such
Indemnified Person actually incurs in connection with
contesting such Impositions, including without limitation
all reasonable legal, accounting and investigatory fees and
disbursements, and, if the Indemnified Person has informed
the Indemnity Provider (in its initial notice of the
Imposition) that it intends to contest such Imposition
(whether or not the control of the contest is then assumed
by the Indemnity Provider), the Indemnity Provider shall
have agreed that the Imposition is an indemnifiable
Imposition hereunder, (B) in the case of a Claim that must
be pursued in the name of an Indemnified Person (or an
Affiliate thereof), the amount of the potential indemnity
(taking into account all similar or logically related Claims
that have been or could be raised in any audit involving
such Indemnified Person for which the Indemnity Provider
may be liable to pay an indemnity under this Section 13.2)
exceeds $10,000, (C) the Indemnified Person shall have
reasonably determined that the action to be taken will not
result in any material danger of sale, forfeiture or loss of
any Property, or any part thereof or interest therein, will not
interfere with the payment of Rent, and will not result in
risk of criminal liability, (D) if such contest shall involve
the payment of the Imposition prior to the contest, the
Indemnity Provider shall provide to the Indemnified Person
an interest-free advance in an amount equal to the
Imposition that the Indemnified Person is required to pay
(with no additional net after-tax cost to such Indemnified
Person), (E) in the case of a Claim that must be pursued in
the name of an Indemnified Person (or an Affiliate thereof),
the Indemnity Provider shall have provided to such
Indemnified Person an opinion of independent tax counsel
selected by the Indemnified Person and reasonably
satisfactory to the Indemnity Provider stating that a
reasonable basis exists to contest such Claim (or, in the
case of an appeal or an adverse determination, an opinion
of such counsel to the effect that the position asserted in
such appeal will more likely than not prevail) and (F) no
Default or Event of Default shall have occurred and be
continuing. In no event shall an Indemnified Person be
required to appeal an adverse judicial determination to the
United States Supreme Court. In addition, an Indemnified
Person shall not be required to contest any Claim in its
name (or that of an Affiliate) if the subject matter thereof
shall be of a continuing nature and shall have previously
been decided adversely by a court of competent jurisdiction
pursuant to the contest provisions of this Section 13.2,
unless there shall have been a change in law (or
interpretation thereof) and the Indemnified Person shall
have received, at the Indemnity Provider's expense, an
opinion of independent tax counsel selected by the
Indemnified Person and reasonably acceptable to the
Indemnity Provider stating that as a result of such change in
law (or interpretation thereof), it is more likely than not that
the Indemnified Person will prevail in such contest.
SECTION 14. MISCELLANEOUS.
14.1. Survival of Agreements.
The representations, warranties, covenants, indemnities and
agreements of the parties provided for in the Operative Agreements, and
the parties' obligations under any and all thereof, shall survive the
execution and delivery of this Agreement, the transfer of any Property to
the Owner Trustee, the acquisition of any Property (or any of its
components), the construction of any Improvements, the Completion of
any Property, any disposition of any interest of the Owner Trustee in any
Property or any interest of the Holders in the Trust Estate, the payment of
the Notes and any disposition thereof and shall be and continue in effect
notwithstanding any investigation made by any party and the fact that any
party may waive compliance with any of the other terms, provisions or
conditions of any of the Operative Agreements. Except as otherwise
expressly set forth herein or in other Operative Agreements, the
indemnities of the parties provided for in the Operative Agreements shall
survive the expiration or termination of any thereof.
14.2. No Broker, etc.
Each of the parties hereto represents to the others that it has not
retained or employed any broker, finder or financial adviser to act on its
behalf in connection with this Agreement, nor has it authorized any
broker, finder or financial adviser retained or employed by any other
Person so to act. Any party who is in breach of this representation shall
indemnify and hold the other parties harmless from and against any
liability arising out of such breach of this representation.
14.3. Notices.
All notices required or permitted to be given under this Agreement
shall be in writing. Notices may be served by certified or registered mail,
postage paid with return receipt requested; by private courier, prepaid; by
telex, facsimile, or other telecommunication device capable of transmitting
or creating a written record; or personally. Mailed notices shall be deemed
delivered five (5) days after mailing, properly addressed. Couriered
notices shall be deemed delivered when delivered as addressed, or if the
addressee refuses delivery, when presented for delivery notwithstanding
such refusal. Telex or telecommunicated notices shall be deemed
delivered when receipt is either confirmed by confirming transmission
equipment or acknowledged by the addressee or its office. Personal
delivery shall be effective when accomplished. Unless a party changes its
address by giving notice to the other party as provided herein, notices shall
be delivered to the parties at the following addresses:
If to the Construction Agent or the Lessee, to such entity at
the following address:
Performance Food Group Company
6800 Paragon Place, Suite 500
Richmond, Virginia 23230
Attention: Roger L. Boeve,
Chief Financial Officer
Telephone: (804) 285-5365
Telecopy: (804) 285-5360
If to the Owner Trustee, to it at the following address:
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Val T. Orton,
Vice President
Telephone: (801) 246-5300
Telecopy: (801) 246-5053
If to the Holders, to each such Holder at the address set
forth for such Holder on the signature page of the Trust
Agreement.
If to the Agent, to it at the following address:
First Union National Bank
c/o First Union Capital Markets Group
DC-6
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Mr. Peter M. Budko,
Director-Real Estate Capital Markets
Telephone: (704) 383-1949
Telecopy: (704) 383-6205
If to any Lender, to it at the address set forth for such
Lender in Schedule 1.1 of the Credit Agreement.
From time to time any party may designate additional
parties and/or another address for notice purposes by notice to each
of the other parties hereto. Each notice hereunder shall be effective
upon receipt or refusal thereof.
14.4. Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one (1) and
the same instrument.
14.5. Amendments and Termination.
No Operative Agreement may be terminated, amended,
supplemented, waived or modified except by an instrument in writing
signed by the parties to such Operative Agreement and, subject to Article
VIII of the Trust Agreement regarding termination of the Trust
Agreement, the Majority Secured Parties (to the extent their consent is not
otherwise required). In addition, (a) the Unanimous Vote Matters shall
require the consent of each Lender and each Holder and (b) any provision
of any Operative Agreement incorporated by reference or otherwise
referenced in a second Operative Agreement shall remain, respecting such
second Operative Agreement, in its original form without regard to any
such termination, amendment, supplement, waiver or modification in the
first Operative Agreement except if such has been agreed to by an
instrument in writing signed by the parties to such second Operative
Agreement.
14.6. Headings, etc.
The Table of Contents and headings of the various Articles and
Sections of this Agreement are for convenience of reference only and shall
not modify, define, expand or limit any of the terms or provisions hereof.
14.7. Parties in Interest.
Except as expressly provided herein, none of the provisions of this
Agreement are intended for the benefit of any Person except the parties
hereto.
14.8. GOVERNING LAW; WAIVERS OF JURY TRIAL; SUBMISSION TO JURISDICTION;
VENUE; ARBITRATION.
(a) THIS AGREEMENT AND THE OTHER OPERATIVE AGREEMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA. Any legal action or proceeding with respect to this Agreement or
any other Operative Agreement may be brought in the courts of the
State of North Carolina in Mecklenburg County or of the United
States for the Western District of North Carolina, and, by
execution and delivery of this Agreement, each of the parties to
this Agreement hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. Each of the parties to this Agreement
further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address set out for notices pursuant to Section
14.3, such service to become effective three (3) days after such
mailing. Nothing herein shall affect the right of any party to serve
process in any other manner permitted by Law or to commence
legal proceedings or to otherwise proceed against any party in any
other jurisdiction.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY, TO THE
FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER OPERATIVE
AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
(c) Each of the parties to this Agreement hereby
irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or
any other Operative Agreement brought in the courts referred to in
subsection (a) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action
or proceeding brought in any such court has been brought in an
inconvenient forum.
(d) Notwithstanding the provisions of Section 14.8(a)
to the contrary, upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any dispute,
claim or controversy arising out of, connected with or relating to
this Agreement and/or other Operative Agreement ("Disputes")
between or among parties to this Agreement shall be resolved by
binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to
demand arbitration hereunder. Disputes may include, without
limitation, tort claims, counterclaims, disputes as to whether a
matter is subject to arbitration, claims brought as class actions,
claims arising from agreements executed in the future, or claims
arising out of or connected with the transaction reflected by this
Agreement.
Arbitration shall be conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration
Rules") of the American Arbitration Association (the "AAA") and
Title 9 of the United States Code. All arbitration hearings shall be
conducted in Charlotte, North Carolina. The expedited procedures
set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000. All applicable
statutes of limitation shall apply to any Dispute. A judgment upon
the award may be entered in any court having jurisdiction. The
panel from which all arbitrators are selected shall be comprised of
licensed attorneys. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted or if such person is not available to serve, the single
arbitrator may be a licensed attorney. Notwithstanding the
foregoing, this arbitration provision does not apply to disputes
under or related to swap agreements.
Notwithstanding the immediately preceding binding
arbitration provisions, the parties to this Agreement agree to
preserve, without diminution, certain remedies that the Agent on
behalf of the Lenders and the Holders may employ or exercise
freely, independently or in connection with an arbitration
proceeding or after an arbitration action is brought. The Agent on
behalf of the Lenders and the Holders shall have the right to
proceed in any court of proper jurisdiction or by self-help to
exercise or prosecute the following remedies, as applicable (i) all
rights to foreclose against any real or personal property or other
security by exercising a power of sale granted under any Operative
Agreement or under applicable Law or by judicial foreclosure and
sale, including a proceeding to confirm the sale; (ii) all rights of
self-help including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of personal
property; (iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and filing an involuntary bankruptcy
proceeding; and (iv) when applicable, a judgment by confession of
judgment. Preservation of these remedies does not limit the power
of an arbitrator to grant similar remedies that may be requested by
a party in a Dispute.
The parties hereto agree that they shall not have a remedy
of special, punitive or exemplary damages against the other in any
Dispute and hereby waive any right or claim to special, punitive or
exemplary damages they have now or which may arise in the
future in connection with any Dispute whether the Dispute is
resolved by arbitration or judicially.
By execution and delivery of this Agreement, each of the
parties hereto accepts, for itself and in connection with its
properties, generally and unconditionally, the non-exclusive
jurisdiction relating to any arbitration proceedings conducted under
the Arbitration Rules in Charlotte, North Carolina and irrevocably
agrees to be bound by any final judgment rendered thereby in
connection with this Agreement from which no appeal has been
taken or is available.
14.9. Severability.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14.10. Liability Limited.
(a) The Lenders, the Agent, the Lessee, the Owner
Trustee and the Holders each acknowledge and agree that the
Owner Trustee is (except as otherwise expressly provided herein or
therein) entering into this Agreement and the other Operative
Agreements to which it is a party (other than the Trust Agreement
and to the extent otherwise provided in Section 7.2 of this
Agreement), solely in its capacity as trustee under the Trust
Agreement and not in its individual capacity and that the Trust
Company shall not be liable or accountable under any
circumstances whatsoever in its individual capacity for or on
account of any statements, representations, warranties, covenants
or obligations stated to be those of the Owner Trustee, except for
its own gross negligence or willful misconduct and as otherwise
expressly provided herein or in the other Operative Agreements.
(b) Anything to the contrary contained in this
Agreement, the Credit Agreement, the Notes or in any other
Operative Agreement notwithstanding, no Exculpated Person shall
be personally liable in any respect for any liability or obligation
arising hereunder or in any other Operative Agreement including
without limitation the payment of the principal of, or interest on,
the Notes, or for monetary damages for the breach of performance
of any of the covenants contained in the Credit Agreement, the
Notes, this Agreement, the Security Agreement or any of the other
Operative Agreements. The Lenders, the Holders and the Agent
agree that, in the event any remedies under any Operative
Agreement are pursued, neither the Lenders, the Holders nor the
Agent shall have any recourse against any Exculpated Person, for
any deficiency, loss or Claim for monetary damages or otherwise
resulting therefrom and recourse shall be had solely and
exclusively against the Trust Estate (excluding Excepted
Payments) and the Lessee (with respect to the Lessee's obligations
under the Operative Agreements); but nothing contained herein
shall be taken to prevent recourse against or the enforcement of
remedies against the Trust Estate (excluding Excepted Payments)
in respect of any and all liabilities, obligations and undertakings
contained herein and/or in any other Operative Agreement.
Notwithstanding the provisions of this Section, nothing in any
Operative Agreement shall: (i) constitute a waiver, release or
discharge of any indebtedness or obligation evidenced by the Notes
and/or the Certificates arising under any Operative Agreement or
secured by any Operative Agreement, but the same shall continue
until paid or discharged; (ii) relieve any Exculpated Person from
liability and responsibility for (but only to the extent of the
damages arising by reason of): active waste knowingly committed
by any Exculpated Person with respect to any Property, any fraud,
gross negligence or willful misconduct on the part of any
Exculpated Person; (iii) relieve any Exculpated Person from
liability and responsibility for (but only to the extent of the moneys
misappropriated, misapplied or not turned over) (A) except for
Excepted Payments, misappropriation or misapplication by the
Lessor (i.e., application in a manner contrary to any of the
Operative Agreements) of any insurance proceeds or condemnation
award paid or delivered to the Lessor by any Person other than the
Agent, (B) except for Excepted Payments, any deposits or any
escrows or amounts owed by the Construction Agent under the
Agency Agreement held by the Lessor or (C) except for Excepted
Payments, any rent or other income received by the Lessor from
the Lessee that is not turned over to the Agent; or (iv) affect or in
any way limit the Agent's rights and remedies under any Operative
Agreement with respect to the Rents and rights and powers of the
Agent under the Operative Agreements or to obtain a judgment
against the Lessee's interest in the Properties or the Agent's rights
and powers to obtain a judgment against the Lessor (provided, that
no deficiency judgment or other money judgment shall be enforced
against any Exculpated Person except to the extent of the Lessor's
interest in the Trust Estate (excluding Excepted Payments) or to
the extent the Lessor may be liable as otherwise contemplated in
clauses (ii) and (iii) of this Section 14.10(b)).
14.11. Rights of the Lessee.
Notwithstanding any provision of the Operative Agreements, if at
any time all obligations (i) of the Owner Trustee under the Credit
Agreement and the Security Documents and (ii) of the Lessee under the
Operative Agreements have in each case been satisfied or discharged in
full, then the Lessee shall be entitled to (a) terminate the Lease and (b)
receive all amounts then held under the Operative Agreements and all
proceeds with respect to any of the Properties. Upon the termination of
the Lease pursuant to the foregoing clause (a), the Lessor shall transfer to
the Lessee all of its right, title and interest free and clear of the Lien of
the Lease, the Lien of the Security Instruments and all Lessor Liens in and to
any Properties then subject to the Lease and any amounts or proceeds
referred to in the foregoing clause (b) shall be paid over to the Lessee.
14.12. Further Assurances.
The parties hereto shall promptly cause to be taken, executed,
acknowledged or delivered, at the sole expense of the Lessee, all such
further acts, conveyances, documents and assurances as the other parties
may from time to time reasonably request in order to carry out and
effectuate the intent and purposes of this Participation Agreement, the
other Operative Agreements and the transactions contemplated hereby and
thereby (including without limitation the preparation, execution and filing
of any and all Uniform Commercial Code financing statements, filings of
Mortgage Instruments and other filings or registrations which the parties
hereto may from time to time request to be filed or effected). The Lessee,
at its own expense and without need of any prior request from any other
party, shall take such action as may be necessary (including without
limitation any action specified in the preceding sentence), or (if the Owner
Trustee shall so request) as so requested, in order to maintain and protect
all security interests provided for hereunder or under any other Operative
Agreement.
14.13. Calculations under Operative Agreements.
The parties hereto agree that all calculations and numerical
determinations to be made under the Operative Agreements by the Owner
Trustee shall be made by the Agent and that such calculations and
determinations shall be conclusive and binding on the parties hereto in the
absence of manifest error.
14.14. Confidentiality.
Each of the Owner Trustee, the Holders, the Agent and the Lenders
severally hereby agrees to use reasonable efforts to keep confidential all
non-public information pertaining to the Lessee or its Subsidiaries which
is provided to it by the Lessee or its Subsidiaries and which an officer of
the Lessee or any of its Subsidiaries has requested in writing be kept
confidential, and shall not intentionally disclose such information to any
Person except:
(a) to the extent such information is public when
received by such Person or becomes public thereafter due to the act
or omission of any party other than such Person;
(b) to the extent such information is lawfully and
independently obtained from a source other than the Lessee or any
of its Subsidiaries and such Person neither knows or has reason to
know that such information from such source is subject to an
obligation of confidentiality or, if such information is subject to an
obligation of confidentiality, that disclosure of such information is
permitted;
(c) to counsel, auditors, accountants or agents retained
by any such Person or any Affiliates of any such Person provided
they agree to keep such information confidential as if such Person
or Affiliate were party to this Agreement and to financial
institution regulators, including without limitation examiners of
any Lender, the Agent or the Owner Trustee, any Holder or any
Affiliate in the course of examinations of such Persons;
(d) in connection with any litigation or the enforcement
or preservation of the rights of the Agent, the Owner Trustee, the
Lessor, any Lender or any Holder under the Operative Agreements;
(e) to the extent required by any applicable statute, rule
or regulation or court order (including without limitation by way of
subpoena) or pursuant to the request of any regulatory or
Governmental Authority having jurisdiction over any such Person;
provided, however, that such Person at the Lessee's cost and
expense shall endeavor (if not otherwise prohibited by Law) to
notify the Lessee prior to any disclosure made pursuant to this
clause (e), except that no such Person shall be subject to any
liability whatsoever for any failure to so notify the Lessee;
(f) the Agent may disclose such information to the
Lenders and the Holders; or
(g) to the extent disclosure to other financial
institutions or other Persons is appropriate in connection with any
proposed or actual (i) assignment or grant of a participation by any
of the Lenders of interests in the Credit Agreement and/or any
Note to such other financial institutions or (ii) assignment by any
Holder of interests in the Trust Agreement to another Person; so
long as such financial institution or other Person first agrees in
writing to hold such information in confidence in accordance with
the foregoing provisions of this Section 14.14.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
PERFORMANCE FOOD
GROUP COMPANY, as the
Construction Agent and as
the Lessee
By: /s/ Roger L. Boeve
Name: Roger L. Boeve
Title: Exec. VP/CFO
FIRST SECURITY BANK,
NATIONAL
ASSOCIATION, not
individually, except as
expressly stated herein, but
solely as the Owner Trustee
under the PFG Real Estate
Trust 1997-1
By: /s/Nancy M. Dahl
Name: Nancy M. Dahl
Title: VP.
FIRST UNION NATIONAL
BANK, as a Holder, as a
Lender and as the Agent
By: /s/Bonnie Banks
Name: Bonnie Banks
Title: VP.
SUNTRUST BANK,
ATLANTA, as a Holder and
as a Lender
By: /s/ Frank R. Callison
Name: Frank R. Callison
Title: VP.
By: /s/ Jarrett A. White III
Name: Jarrette A. White III
Title: GVP/Group Manager
BANK OF TOKYO-
MITSUBISHI TRUST
COMPANY, as a Lender
By: /s/Cathrine Moser
Name: Cathrine Moser
Title: Asst. VP.
HIBERNIA NATIONAL
BANK, as a Lender
By: /s/ Stephanie M. Freeman
Name: Stephanie M. Freeman
Title: National Acct. Rep.
<PAGE>
LEASE AGREEMENT
Dated as of August 29, 1997
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually,
but solely as the Owner Trustee
under the PFG Real Estate Trust 1997-1,
as Lessor
and
PERFORMANCE FOOD GROUP COMPANY,
as Lessee
This Lease Agreement is subject to a security interest in favor of First
Union National Bank, as the agent for the Lenders and respecting the
Security Documents, as the agent for the Lenders and the Holders, to the
extent of their interests (the "Agent") under a Security Agreement dated as
of August 29, 1997, between First Security Bank, National Association,
not individually except as expressly stated therein, but solely as the Owner
Trustee under the PFG Real Estate Trust 1997-1 and the Agent, as
amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof.
This Lease Agreement has been executed in several counterparts. To the
extent, if any, that this Lease Agreement constitutes chattel paper (as such
term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), no security interest in this Lease Agreement may
be created through the transfer or possession of any counterpart other than
the original counterpart containing the receipt therefor executed by the
Agent on the signature page hereof.
TABLE OF CONTENTS
ARTICLE I 1
1.1 Definitions. 1
1.2 Interpretation. 2
ARTICLE II 2
2.1 Property. 2
2.2 Lease Term. 2
2.3 Title. 3
2.4 Lease Supplements. 3
ARTICLE III 3
3.1 Rent. 3
3.2 Payment of Basic Rent. 4
3.3 Supplemental Rent. 4
3.4 Performance on a Non-Business Day. 5
3.5 Rent Payment Provisions. 5
ARTICLE IV 5
4.1 Taxes; Utility Charges. 5
ARTICLE V 6
5.1 Quiet Enjoyment. 6
ARTICLE VI 6
6.1 Net Lease. 6
6.2 No Termination or Abatement. 7
ARTICLE VII 7
7.1 Ownership of the Properties. 7
ARTICLE VIII 8
8.1 Condition of the Properties. 8
8.2 Possession and Use of the Properties. 9
8.3 Integrated Properties. 10
ARTICLE IX 11
9.1 Compliance With Legal Requirements, Insurance
Requirements and Manufacturer's Specifications
and Standards. 11
ARTICLE X 11
10.1 Maintenance and Repair; Return. 11
10.2 Environmental Inspection. 13
ARTICLE XI 13
11.1 Modifications. 13
ARTICLE XII 14
12.1 Warranty of Title. 14
ARTICLE XIII 15
13.1 Permitted Contests Other Than in Respect of Indemnities. 15
ARTICLE XIV 16
14.1 Public Liability and Workers' Compensation Insurance. 16
14.2 Permanent Hazard and Other Insurance. 17
14.3 Coverage. 18
ARTICLE XV 19
15.1 Casualty and Condemnation. 19
15.2 Environmental Matters. 22
15.3 Notice of Environmental Matters. 23
ARTICLE XVI 24
16.1 Termination Upon Certain Events. 24
16.2 Procedures. 24
ARTICLE XVII 24
17.1 Lease Events of Default. 24
17.2 Surrender of Possession. 28
17.3 Reletting. 28
17.4 Damages. 29
17.5 Power of Sale. 30
17.6 Final Liquidated Damages. 30
17.7 Environmental Costs. 31
17.8 Waiver of Certain Rights. 31
17.9 Assignment of Rights Under Contracts. 31
17.10 Remedies Cumulative. 32
ARTICLE XVIII 32
18.1 Lessor's Right to Cure Lessee's Lease Defaults. 32
ARTICLE XIX 32
19.1 Provisions Relating to Lessee's Exercise of
its Purchase Option. 32
19.2 No Purchase or Termination With Respect to Less than
All of a Property. 33
ARTICLE XX 33
20.1 Purchase Option or Sale Option-General Provisions. 33
20.2 Lessee Purchase Option. 34
20.3 Third Party Sale Option. 35
ARTICLE XXI 36
21.1 [Intentionally Omitted]. 36
ARTICLE XXII 36
22.1 Sale Procedure. 36
22.2 Application of Proceeds of Sale. 39
22.3 Indemnity for Excessive Wear. 39
22.4 Appraisal Procedure. 40
22.5 Certain Obligations Continue. 40
ARTICLE XXIII 41
23.1 Holding Over. 41
ARTICLE XXIV 41
24.1 Risk of Loss. 41
ARTICLE XXV 42
25.1 Assignment. 42
25.2 Subleases. 42
ARTICLE XXVI 43
26.1 No Waiver. 43
ARTICLE XXVII 43
27.1 Acceptance of Surrender. 43
27.2 No Merger of Title. 43
ARTICLE XXVIII 44
28.1 Incorporation of Covenants. 44
ARTICLE XXIX 45
29.1 Notices. 45
ARTICLE XXX 45
30.1 Miscellaneous. 45
30.2 Amendments and Modifications. 45
30.3 Successors and Assigns. 45
30.4 Headings and Table of Contents. 45
30.5 Counterparts. 46
30.6 GOVERNING LAW. 46
30.7 Calculation of Rent. 46
30.8 Memoranda of Lease and Lease Supplements. 46
30.9 Allocations between the Lenders and the Holders. 46
30.10 Limitations on Recourse. 47
30.11 WAIVERS OF JURY TRIAL. 47
30.12 Exercise of Lessor Rights. 47
30.13 SUBMISSION TO JURISDICTION; VENUE;ARBITRATION. 47
30.14 USURY SAVINGS PROVISION. 49
EXHIBITS
EXHIBIT A - Lease Supplement No. ____
EXHIBIT B - Memorandum of Lease and Lease Supplement No.
____
LEASE AGREEMENT
THIS LEASE AGREEMENT dated as of August 29, 1997 (as
amended, modified, extended, supplemented, restated and/or replaced
from time to time, this "Lease") is between FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, having its
principal office at 79 South Main Street, Salt Lake City, Utah 84111, not
individually, but solely as the Owner Trustee under the PFG Real Estate
Trust 1997-1, as lessor (the "Lessor"), and PERFORMANCE FOOD
GROUP COMPANY, a Tennessee corporation, having its principal place
of business at 6800 Paragon Place, Suite 500, Richmond, Virginia 23230,
as lessee (the "Lessee").
W I T N E S S E T H:
A. WHEREAS, subject to the terms and conditions of the
Participation Agreement and the Agency Agreement, Lessor will (i)
purchase or ground lease various parcels of real property, some of which
will (or may) have existing Improvements thereon, from one (1) or more
third parties designated by Lessee and (ii) fund the acquisition,
installation, testing, use, development, construction, operation,
maintenance, repair, refurbishment and restoration of the Properties by the
Construction Agent; and
B. WHEREAS, the Basic Term shall commence with respect
to each Property upon the Property Closing Date with respect thereto;
provided, Basic Rent with respect thereto shall not be payable until the
applicable Rent Commencement Date; and
C. WHEREAS, Lessor desires to lease to Lessee, and Lessee
desires to lease from Lessor, each Property;
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.
Capitalized terms used but not otherwise defined in this
Lease have the respective meanings specified in Appendix A to the
Participation Agreement of even date herewith (as such may be amended,
modified, extended, supplemented, restated and/or replaced from time to
time, the "Participation Agreement") among Lessee, the Construction
Agent, First Security Bank, National Association, not individually, except
as expressly stated therein, as the Owner Trustee under the PFG Real
Estate Trust 1997-1, the Holders, the Lenders and the Agent.
1.2 Interpretation.
The rules of usage set forth in Appendix A to the
Participation Agreement shall apply to this Lease.
ARTICLE II
2.1 Property.
Subject to the terms and conditions hereinafter set forth and
contained in the respective Lease Supplement relating to each Property,
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor, each
Property.
2.2 Lease Term.
The basic term of this Lease with respect to each Property
(the "Basic Term") shall begin upon the Property Closing Date for such
Property (in each case the "Basic Term Commencement Date") and shall
end on the second annual anniversary of the Initial Closing Date (the
"Basic Term Expiration Date"), unless the Basic Term is earlier
terminated or the term of this Lease is renewed (as described below) in
accordance with the provisions of this Lease. Notwithstanding the
foregoing, Lessee shall not be obligated to pay Basic Rent until the Rent
Commencement Date with respect to such Property.
To the extent no Default or Event of Default has occurred
and is continuing, and if Lessee has not provided written notice to Lessor
and the Agent at least one hundred twenty (120) days prior to the first day
of the applicable Renewal Term of its determination to exercise its
purchase option or sale option under Article XX hereof, the term of this
Lease for each Property shall be automatically extended for up to three (3)
additional terms each of one (1) year's duration from the Basic Term
Expiration Date (each, a "Renewal Term"); provided, that the expiration
date for the final Renewal Term for each Property shall not be later than
the fifth annual anniversary of the Initial Closing Date, unless such later
expiration date has been expressly agreed to, at the request of Lessee, in
writing by each of Lessor, the Agent, the Lenders and the Holders in their
sole discretion.
2.3 Title.
Each Property is leased to Lessee without any
representation or warranty, express or implied, by Lessor and subject to
the rights of parties in possession (if any), the existing state of title
(including without limitation the Permitted Liens) and all applicable Legal
Requirements. Lessee shall in no event have any recourse against Lessor
for any defect in Lessor's title to any Property or any interest of Lessee
therein other than for Lessor Liens.
2.4 Lease Supplements.
On or prior to each Basic Term Commencement Date, Lessee and
Lessor shall each execute and deliver a Lease Supplement for the Property
to be leased effective as of such Basic Term Commencement Date in
substantially the form of Exhibit A hereto. Lessee hereby irrevocably
appoints Lessor as Lessee's attorney-in-fact, with power of substitution, in
the name of Lessor or the name of Lessee or otherwise, to execute any
Lease Supplement which Lessee fails or refuses to sign in accordance with
the terms of this Section 2.4 (including without limitation any Lease
Supplement required in connection with any Construction Period Property
upon the occurrence of an Agency Agreement Event of Default).
ARTICLE III
3.1 Rent.
(a) Lessee shall pay Basic Rent in arrears on each
Payment Date, and on any date on which this Lease shall terminate
with respect to any or all Properties during the Term; provided,
however, with respect to each individual Property Lessee shall
have no obligation to pay Basic Rent with respect to such Property
until the Rent Commencement Date with respect to such Property
(notwithstanding that Basic Rent for such Property shall accrue
from and including the Scheduled Interest Payment Date
immediately preceding such Rent Commencement Date).
(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 (or within the
applicable grace period) to such account or accounts at such bank
or banks as Lessor shall from time to time direct.
(c) Lessee's inability or failure to take possession of all
or any portion of any Property when delivered by Lessor, whether
or not attributable to any act or omission of Lessor, the
Construction Agent, Lessee or any other Person or for any other
reason whatsoever, shall not delay or otherwise affect Lessee's
obligation to pay Rent for such Property in accordance with the
terms of this Lease.
3.2 Payment of Basic Rent.
Basic Rent shall be paid absolutely net to Lessor or its
designee, so that this Lease shall yield to Lessor the full amount thereof,
without setoff, deduction or reduction.
3.3 Supplemental Rent.
Lessee shall pay to the Person entitled thereto any and all
Supplemental Rent when and as the same shall become due and payable,
and if Lessee fails to pay any Supplemental Rent within three (3) days
after the same is due, 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. All such payments of Supplemental Rent shall
be in the full amount thereof, without setoff, deduction or reduction.
Lessee shall pay to Lessor, as Supplemental Rent due and owing to
Lessor, among other things, on demand, to the extent permitted by
applicable Legal Requirements, (a) any and all unpaid fees, charges,
payments, amounts and other obligations (other than the obligations of
Lessor to pay the principal amount of the Loans and the Holder Amount)
due and owing by Lessor, in any capacity, under the Credit Agreement,
under the Trust Agreement and/or under any other Operative Agreement
(including without limitation any amounts owing to the Lenders under
Section 2.11, Section 2.12, Section 2.13 and Section 9.5 of the Credit
Agreement and any amounts owing to the Holders under Section 3.9 or
Section 3.10 of the Trust Agreement) and (b) interest at the applicable
Overdue Rate on any installment of Basic Rent not paid when due (subject
to the applicable grace period) for the period for which the same shall be
overdue and on any payment of Supplemental Rent not paid when due or
demanded by the appropriate Person (subject to any applicable grace
period) for the period from the due date or the date of any such demand, as
the case may be, until the same shall be paid. It shall be an additional
Supplemental Rent obligation of Lessee to pay to the appropriate Person
all rent and other amounts when such become due and owing from time to
time under each Ground Lease and without the necessity of any notice
from Lessor with regard thereto. The expiration or other termination of
Lessee's obligations to pay Basic Rent hereunder shall not limit or modify
the obligations of Lessee with respect to Supplemental Rent. Unless
expressly provided otherwise in this Lease, in the event of any failure on
the part of Lessee to pay and discharge any Supplemental Rent as and
when due, Lessee shall also promptly pay and discharge any fine, penalty,
interest or cost which may be assessed or added for nonpayment or late
payment of such Supplemental Rent, all of which shall also constitute
Supplemental Rent.
3.4 Performance on a Non-Business Day.
If any Basic Rent is required hereunder on a day that is not
a Business Day, then such Basic Rent shall be due on the corresponding
Scheduled Interest Payment Date. If any Supplemental Rent is required
hereunder on a day that is not a Business Day, then such Supplemental
Rent shall be due on the next succeeding Business Day.
3.5 Rent Payment Provisions.
Lessee shall make payment of all Basic Rent and
Supplemental Rent when due (subject to the applicable grace periods)
regardless of whether any of the Operative Agreements pursuant to which
same is calculated and is owing shall have been rejected, avoided or
disavowed in any bankruptcy or insolvency proceeding involving any of
the parties to any of the Operative Agreements. Such provisions of such
Operative Agreements and their related definitions are incorporated herein
by reference and shall survive any termination, amendment or rejection of
any such Operative Agreements.
ARTICLE IV
4.1 Taxes; Utility Charges.
Lessee shall pay or cause to be paid all Impositions with
respect to the Properties and/or the use, occupancy, operation, repair,
access, maintenance or operation thereof and all charges for electricity,
power, gas, oil, water, telephone, sanitary sewer service and all other rents,
utilities and operating expenses of any kind or type used in or on any
Property and related real property during the Term. Upon Lessor's
request, Lessee shall provide from time to time Lessor with evidence of all
such payments referenced in the foregoing sentence. Lessee shall be
entitled to receive any credit or refund with respect to any Imposition or
utility charge paid by Lessee. Unless an Event of Default shall have
occurred and be continuing, the amount of any credit or refund received by
Lessor on account of any Imposition or utility charge paid by Lessee, net
of the costs and expenses incurred by Lessor in obtaining such credit or
refund, shall be promptly paid over to Lessee. All charges for Impositions
or utilities imposed with respect to any Property for a period during which
this Lease expires or terminates shall be adjusted and prorated on a daily
basis between Lessor and Lessee, and each party shall pay or reimburse
the other for such party's pro rata share thereof.
ARTICLE V
5.1 Quiet Enjoyment.
Subject to the rights of Lessor contained in Sections 17.2,
17.3 and 20.3 and the other terms of this Lease and the other Operative
Agreements and so long as no Event of Default shall have occurred and be
continuing, Lessee shall peaceably and quietly have, hold and enjoy each
Property for the applicable Term, free of any claim or other action by
Lessor or anyone rightfully claiming by, through or under Lessor (other
than Lessee) with respect to any matters arising from and after the
applicable Basic Term Commencement Date.
ARTICLE VI
6.1 Net Lease.
This Lease shall constitute a net lease, and the obligations
of Lessee hereunder are absolute and unconditional. Lessee shall pay all
operating expenses arising out of the use, operation and/or occupancy of
each Property. Any present or future law to the contrary notwithstanding,
this Lease shall not terminate, nor shall Lessee be entitled to any
abatement, suspension, deferment, reduction, setoff, counterclaim, or
defense with respect to the Rent, nor shall the obligations of Lessee
hereunder be affected (except as expressly herein permitted and by
performance of the obligations in connection therewith) for any reason
whatsoever, including without limitation by reason of: (a) any damage to
or destruction of any Property or any part thereof; (b) any taking of any
Property or any part thereof or interest therein by Condemnation or
otherwise; (c) any prohibition, limitation, restriction or prevention of
Lessee's use, occupancy or enjoyment of any Property or any part thereof,
or any interference with such use, occupancy or enjoyment by any Person
or for any other reason; (d) any title defect, Lien or any matter affecting
title to any Property; (e) any eviction by paramount title or otherwise; (f)
any default by Lessor hereunder; (g) any action for bankruptcy,
insolvency, reorganization, liquidation, dissolution or other proceeding
relating to or affecting the Agent, any Lender, Lessor, Lessee, any Holder
or any Governmental Authority; (h) the impossibility or illegality of
performance by Lessor, Lessee or both; (i) any action of any
Governmental Authority or any other Person; (j) Lessee's acquisition of
ownership of all or part of any Property; (k) breach of any warranty or
representation with respect to any Property or any Operative Agreement;
(l) any defect in the condition, quality or fitness for use of any Property or
any part thereof; or (m) any other cause or circumstance whether similar or
dissimilar to the foregoing and whether or not Lessee shall have notice or
knowledge of any of the foregoing. The parties intend that the obligations
of Lessee hereunder shall be covenants, agreements and obligations that
are separate and independent from any obligations of Lessor hereunder
and shall continue unaffected unless such covenants, agreements and
obligations shall have been modified or terminated in accordance with an
express provision of this Lease. Lessor and Lessee acknowledge and
agree that the provisions of this Section 6.1 have been specifically
reviewed and subject to negotiation.
6.2 No Termination or Abatement.
Lessee shall remain obligated under this Lease in
accordance with its terms and shall not take any action to terminate,
rescind or avoid this Lease, notwithstanding any action for bankruptcy,
insolvency, reorganization, liquidation, dissolution, or other proceeding
affecting any Person or any Governmental Authority, or any action with
respect to this Lease or any Operative Agreement which may be taken by
any trustee, receiver or liquidator of any Person or any Governmental
Authority or by any court with respect to any Person, or any Governmental
Authority. Lessee hereby waives all right (a) to terminate or surrender this
Lease (except as permitted under the terms of the Operative Agreements)
or (b) to avail itself of any abatement, suspension, deferment, reduction,
setoff, counterclaim or defense with respect to any Rent. Lessee shall
remain obligated under this Lease in accordance with its terms and Lessee
hereby waives any and all rights now or hereafter conferred by statute or
otherwise to modify or to avoid strict compliance with its obligations
under this Lease. Notwithstanding any such statute or otherwise, Lessee
shall be bound by all of the terms and conditions contained in this Lease.
ARTICLE VII
7.1 Ownership of the Properties.
(a) Lessor and Lessee intend that (i) for financial
accounting purposes with respect to Lessee (A) this Lease will be
treated as an "operating lease" pursuant to Statement of Financial
Accounting Standards No. 13, as amended, (B) Lessor will be
treated as the owner and lessor of each Property and (C) Lessee
will be treated as the lessee of each Property, but (ii) for federal
and all state and local income tax purposes and bankruptcy
purposes (A) this Lease will be treated as a financing arrangement
and (B) Lessee will be treated as the owner of the Properties.
Notwithstanding the foregoing, neither party hereto has made, or
shall be deemed to have made, any representation or warranty as to
the availability of any of the foregoing treatments under applicable
accounting rules, tax law or bankruptcy law. Lessee shall claim
the cost recovery deductions associated with each Property, and
Lessor shall not, to the extent not prohibited by Law, take on its
tax return a position inconsistent with Lessee's claim of such
deductions.
(b) [Intentionally Omitted].
ARTICLE VIII
8.1 Condition of the Properties.
LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING EACH PROPERTY
"AS-IS WHERE-IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) BY LESSOR AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF
TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF (IF ANY),
(C) ANY STATE OF FACTS REGARDING ITS PHYSICAL CONDITION OR WHICH AN
ACCURATE SURVEY MIGHT SHOW, (D) ALL APPLICABLE LEGAL REQUIREMENTS AND
(E) VIOLATIONS OF LEGAL REQUIREMENTS WHICH MAY EXIST ON THE DATE HEREOF
AND/OR THE DATE OF THE APPLICABLE LEASE SUPPLEMENT. NEITHER LESSOR NOR THE
AGENT NOR ANY LENDER NOR ANY HOLDER HAS MADE OR SHALL BE DEEMED TO HAVE
MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) OR SHALL
BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE, VALUE,
HABITABILITY, USE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS
FOR USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION,
WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY
PROPERTY (OR ANY PART THEREOF), AND NEITHER LESSOR NOR THE AGENT NOR ANY
LENDER NOR ANY HOLDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREON OR THE FAILURE OF ANY PROPERTY, OR ANY PART THEREOF, TO
COMPLY WITH ANY LEGAL REQUIREMENT. LESSEE HAS OR PRIOR TO THE BASIC TERM
COMMENCEMENT DATE WILL HAVE BEEN AFFORDED FULL OPPORTUNITY TO INSPECT EACH
PROPERTY AND THE IMPROVEMENTS THEREON (IF ANY), IS OR WILL BE (INSOFAR AS
LESSOR, THE AGENT, EACH LENDER AND EACH HOLDER ARE CONCERNED) SATISFIED WITH
THE RESULTS OF ITS INSPECTIONS AND IS ENTERING INTO THIS LEASE SOLELY ON THE
BASIS OF THE RESULTS OF ITS OWN INSPECTIONS, AND ALL RISKS INCIDENT TO THE
MATTERS DESCRIBED IN THE PRECEDING SENTENCE, AS BETWEEN LESSOR, THE AGENT,
THE LENDERS AND THE HOLDERS, ON THE ONE (1) HAND, AND LESSEE, ON THE OTHER
HAND, ARE TO BE BORNE BY LESSEE.
8.2 Possession and Use of the Properties.
(a) At all times during the Term with respect to each
Property, such Property shall be a Permitted Facility and shall be
used by Lessee in the ordinary course of its business. Lessee shall
pay, or cause to be paid, all charges and costs required in
connection with the use of the Properties as contemplated by this
Lease. Lessee shall not commit or permit any waste of the
Properties or any part thereof.
(b) The address stated in Section 29.1 of this Lease is
the principal place of business and chief executive office of Lessee
(as such terms are used in Section 9-103(3) of the Uniform
Commercial Code of any applicable jurisdiction), and Lessee will
provide Lessor with prior written notice of any change of location
of its chief place of business or chief executive office. Regarding a
particular Property, each Lease Supplement correctly identifies the
initial location of the related Equipment and Improvements (if any)
and contains an accurate legal description for the related parcel of
Land. The Equipment and Improvements respecting each
particular Property will be located only at the location identified in
the applicable Lease Supplement.
(c) Lessee will not attach or incorporate any item of
Equipment to or in any other item of equipment or personal
property or to or in any real property (except the Land identified in
the Lease Supplement in which such Equipment is also described)
in a manner that could give rise to the assertion of any Lien on
such item of Equipment by reason of such attachment or the
assertion of a claim that such item of Equipment has become a
fixture and is subject to a Lien in favor of a third party that is prior
to the Liens thereon created by the Operative Agreements.
(d) On the Basic Term Commencement Date for each
Property, Lessor and Lessee shall execute a Lease Supplement in
regard to such Property which shall contain an Equipment
Schedule that has a complete description of each item of
Equipment which is then a part of the Property, an Improvement
Schedule that has a complete description of each Improvement
which is then a part of the Property and a legal description of the
Land to be leased hereunder (or in the case of any Land subject to a
Ground Lease to be subleased hereunder) as of such date. All
Land subject to a Ground Lease shall be deemed to be ground
subleased from Lessor to Lessee as of the Basic Term
Commencement Date, and such ground sublease shall be in effect
until this Lease is terminated or expires, in each case in accordance
with the terms and provisions hereof. Lessee shall satisfy and
perform all obligations imposed on Lessor under each Ground
Lease. Simultaneously with the execution and delivery of each
Lease Supplement, such Equipment, Improvements, Land,
subleasehold interest in Land, all additional Equipment and
Improvements which are financed under the Operative Agreements
after the Basic Term Commencement Date and the remainder of
such Property shall be deemed to have been accepted by Lessee for
all purposes of this Lease and to be subject to this Lease.
(e) At all times during the Term with respect to each
Property, Lessee will comply with all obligations under and (to the
extent no Event of Default exists and provided that such exercise
will not impair the value, utility or remaining useful life of such
Property) shall be permitted to exercise all rights and remedies
under, all operation and easement agreements and related or similar
agreements applicable to such Property.
8.3 Integrated Properties.
On the Rent Commencement Date for each Property, such
Property and the applicable property subject to a Ground Lease shall
constitute (and for the duration of the Term shall continue to constitute) all
of the equipment, facilities, rights, other personal property and other real
property necessary or appropriate to operate, utilize, maintain and control
a Permitted Facility in a commercially reasonable manner.
ARTICLE IX
9.1 Compliance With Legal Requirements, Insurance
Requirements and Manufacturer's Specifications and Standards.
Subject to the terms of Article XIII relating to permitted
contests, Lessee, at its sole cost and expense, shall (a) comply with all
applicable Legal Requirements (including without limitation all
Environmental Laws), all Insurance Requirements relating to the
Properties and all manufacturer's specifications and standards, including
without limitation the acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment and restoration
thereof, whether or not compliance therewith shall require structural or
extraordinary changes in any Property or interfere with the use and
enjoyment of any Property, and (b) procure, maintain and comply with all
licenses, permits, orders, approvals, consents and other authorizations
required for the acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment and restoration
of the Properties, unless the failure to procure, maintain and comply with
such items identified in subparagraphs (a) and (b) could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect. Lessor agrees to take such actions as may be reasonably requested
by Lessee in connection with the compliance by Lessee of its obligations
under this Section 9.1.
ARTICLE X
10.1 Maintenance and Repair; Return.
(a) Lessee, at its sole cost and expense, shall maintain
each Property in good condition, repair and working order
(ordinary wear and tear excepted) and in the repair and condition as
when originally delivered to Lessor and make all necessary repairs
thereto and replacements thereof, of every kind and nature
whatsoever, whether interior or exterior, ordinary or extraordinary,
structural or nonstructural or foreseen or unforeseen, in each case
as required by Section 9.1 and on a basis consistent with the
operation and maintenance of properties or equipment comparable
in type and function to the applicable Property, such that such
Property is capable of being immediately utilized by a third party
and in compliance with standard industry practice subject,
however, to the provisions of Article XV with respect to Casualty
and Condemnation.
(b) Lessee shall not use or locate any component of any
Property outside of any Approved State. Lessee shall not move or
relocate any component of any Property beyond the boundaries of
the Land (comprising part of such Property) described in the
applicable Lease Supplement, except for the temporary removal of
Equipment and other personal property for repair or replacement.
(c) If any component of any Property becomes worn
out, lost, destroyed, damaged beyond repair or otherwise
permanently rendered unfit for use, Lessee, at its own expense, will
within a reasonable time replace such component with a
replacement component which is free and clear of all Liens (other
than Permitted Liens) and has a value, utility and useful life at least
equal to the component replaced (assuming the component
replaced had been maintained and repaired in accordance with the
requirements of this Lease). All components which are added to
any Property shall immediately become the property of (and title
thereto shall vest in) Lessor and shall be deemed incorporated in
such Property and subject to the terms of this Lease as if originally
leased hereunder.
(d) Upon reasonable advance notice, Lessor and its
agents shall have the right to inspect each Property and all
maintenance records with respect thereto at any reasonable time
during normal business hours but shall not, in the absence of an
Event of Default, materially disrupt the business of Lessee.
(e) If, at any time, the aggregate appraised value of
Properties then subject to this Lease for which Lessor has received
an as-built Appraisal pursuant to the terms of Section 5.5 of the
Participation Agreement is less than $8,400,000 (the "Base
Amount"), then Lessee will cause an additional as-built Appraisal
or as-built Appraisals to be immediately delivered to Lessor in an
amount sufficient to cause such aggregate appraised value to equal
or exceed the Base Amount. In addition, Lessee shall cause to be
delivered to Lessor (at Lessee's sole expense) one (1) or more
additional Appraisals (or reappraisals of Property) as Lessor may
request if any one (1) of Lessor, the Agent, the Trust Company,
any Lender or any Holder is required pursuant to any applicable
Legal Requirement to obtain such Appraisals (or reappraisals) and
upon the occurrence of any Event of Default.
(f) Lessor shall under no circumstances be required to
build any improvements or install any equipment on any Property,
make any repairs, replacements, alterations or renewals of any
nature or description to any Property, make any expenditure
whatsoever in connection with this Lease or maintain any Property
in any way. Lessor shall not be required to maintain, repair or
rebuild all or any part of any Property, and Lessee waives the right
to (i) require Lessor to maintain, repair, or rebuild all or any part of
any Property, or (ii) make repairs at the expense of Lessor pursuant
to any Legal Requirement, Insurance Requirement, contract,
agreement, covenant, condition or restriction at any time in effect.
(g) Lessee shall, upon the expiration or earlier
termination of this Lease with respect to a Property, if Lessee shall
not have exercised its Purchase Option with respect to such
Property and purchased such Property, surrender such Property to
Lessor pursuant to (i) the exercise of the applicable remedies upon
the occurrence of a Lease Event of Default or (ii) the second
paragraph of Section 22.1(a) hereof, or the third party purchaser, as
the case may be, subject to Lessee's obligations under this Lease
(including without limitation the obligations of Lessee at the time
of such surrender under Sections 9.1, 10.1(a)-(f), 10.2, 11.1, 12.1,
22.1 and 23.1).
10.2 Environmental Inspection.
If Lessee has not given notice of exercise of its Purchase
Option on the Expiration Date pursuant to Section 20.1 or for whatever
reason Lessee does not purchase a Property in accordance with the terms
of this Lease, then not more than one hundred twenty (120) days nor less
than sixty (60) days prior to the Expiration Date, Lessee at its expense
shall cause to be delivered to Lessor a Phase I environmental site
assessment recently prepared (no more than thirty (30) days prior to the
date of delivery) by an independent recognized professional reasonably
acceptable to Lessor, the Majority Holders and the Agent, and in form,
scope and content reasonably satisfactory to Lessor, the Majority Holders
and the Agent.
ARTICLE XI
11.1 Modifications.
(a) Lessee at its sole cost and expense, at any time and
from time to time without the consent of Lessor may make
modifications, alterations, renovations, improvements and
additions to any Property or any part thereof and substitutions and
replacements therefor (collectively, "Modifications"), and Lessee
shall make any and all Modifications required to be made pursuant
to all Legal Requirements, Insurance Requirements and
manufacturer's specifications and standards; provided, that: (i) no
Modification shall materially impair the value, utility or useful life
of any Property from that which existed immediately prior to such
Modification; (ii) each Modification shall be done expeditiously
and in a good and workmanlike manner; (iii) no Modification shall
adversely affect the structural integrity of any Property; (iv) to the
extent required by Section 14.2(a), Lessee shall maintain builders'
risk insurance at all times when a Modification is in progress; (v)
subject to the terms of Article XIII relating to permitted contests,
Lessee shall pay all costs and expenses and discharge any Liens
arising with respect to any Modification; (vi) each Modification
shall comply with the requirements of this Lease (including
without limitation Sections 8.2 and 10.1); and (vii) no
Improvement shall be demolished or otherwise rendered unfit for
use unless Lessee shall finance the proposed replacement
Modification outside of this lease facility. All Modifications shall
immediately and without further action upon their incorporation
into the applicable Property (1) become property of Lessor, (2) be
subject to this Lease and (3) be titled in the name of Lessor.
Lessee shall not remove or attempt to remove any Modification
from any Property. Each Ground Lease for a Property shall
expressly provide for the provisions of the foregoing sentence.
Lessee, at its own cost and expense, will pay for the repairs of any
damage to any Property caused by the removal or attempted
removal of any Modification.
(b) The construction process provided for in the
Agency Agreement is acknowledged by Lessor and the Agent to be
consistent with and in compliance with the terms and provisions of
this Article XI.
ARTICLE XII
12.1 Warranty of Title.
(a) Title in each Property (including without limitation
all Equipment, all Improvements, all replacement components to
each Property and all Modifications) shall immediately and
without further action vest in and such shall become the property
of Lessor and be subject to the terms of this Lease (provided,
respecting all Land subject to a Ground Lease, Lessor's interest
therein is acknowledged to be a leasehold interest pursuant to such
Ground Lease) from and after the date hereof or such date of
incorporation into any Property. Lessee agrees that, subject to the
terms of Article XIII relating to permitted contests, Lessee shall
not directly or indirectly create or allow to remain, and shall
promptly discharge at its sole cost and expense, any Lien, defect,
attachment, levy, title retention agreement or claim upon any
Property, any component thereof or any Modifications or any Lien,
attachment, levy or claim with respect to the Rent or with respect
to any amounts held by Lessor, the Agent or any Holder pursuant
to any Operative Agreement, other than Permitted Liens and
Lessor Liens. Lessee shall promptly notify Lessor in the event it
receives actual knowledge that a Lien other than a Permitted Lien
or Lessor Lien has occurred with respect to a Property, the Rent or
any other such amounts, and Lessee represents and warrants to, and
covenants with, Lessor that the Liens in favor of Lessor created by
the Operative Agreements are (and until the financing parties under
the Operative Agreements have been paid in full shall remain) first
priority perfected Liens subject only to Permitted Liens.
(b) Nothing contained in this Lease shall be construed
as constituting the consent or request of Lessor, expressed or
implied, to or for the performance by any contractor, mechanic,
laborer, materialman, supplier or vendor of any labor or services or
for the furnishing of any materials for any construction, alteration,
addition, repair or demolition of or to any Property or any part
thereof. NOTICE IS HEREBY GIVEN THAT LESSOR IS NOT AND SHALL NOT BE LIABLE
FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO
LESSEE, OR TO ANYONE HOLDING A PROPERTY OR ANY PART THEREOF THROUGH OR UNDER
LESSEE, AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES
OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR IN AND TO ANY
PROPERTY.
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, Lessee, on its own or on Lessor's behalf but
at Lessee's sole cost and expense, may contest, by appropriate
administrative or judicial proceedings conducted in good faith and with
due diligence, the amount, validity or application, in whole or in part, of
any Legal Requirement, or utility charges payable pursuant to Section 4.1
or any Lien, attachment, levy, encumbrance or encroachment, and Lessor
agrees not to pay, settle or otherwise compromise any such item, provided,
that (a) the commencement and continuation of such proceedings shall
suspend the collection of any such contested amount from, and suspend
the enforcement thereof against, the applicable Properties, Lessor, each
Holder, the Agent and each Lender; (b) there shall not be imposed a Lien
(other than Permitted Liens) on any Property and no part of any Property
nor any Rent would be in any danger of being sold, forfeited, lost or
deferred; (c) at no time during the permitted contest shall there be a risk of
the imposition of criminal liability or material civil liability on Lessor, any
Holder, the Agent or any Lender for failure to comply therewith; and (d) in
the event that, at any time, there shall be a material risk of extending the
application of such item beyond the end of the Term, then Lessee shall
deliver to Lessor an Officer's Certificate certifying as to the matters set
forth in clauses (a), (b) and (c) of this Section 13.1. Lessor, at Lessee's
sole cost and expense, shall execute and deliver to Lessee such
authorizations and other documents as may reasonably be required in
connection with any such contest and, if reasonably requested by Lessee,
shall join as a party therein at Lessee's sole cost and expense.
ARTICLE XIV
14.1 Public Liability and Workers' Compensation Insurance.
During the Term for each Property, Lessee shall procure
and carry, at Lessee's sole cost and expense, commercial general liability
and umbrella liability insurance for claims for injuries or death sustained
by persons or damage to property while on such Property or respecting the
Equipment and such other public liability coverages as are then
customarily carried by similarly situated companies conducting business
similar to that conducted by Lessee. Such insurance shall be on terms and
in amounts that are no less favorable than insurance maintained by Lessee
with respect to similar properties and equipment that it owns and are then
carried by similarly situated companies conducting business similar to that
conducted by Lessee, and in no event shall have a minimum combined
single limit per occurrence coverage (i) for commercial general liability of
less than $1,000,000 and (ii) for umbrella liability of less than
$50,000,000. The policies shall name Lessee as the insured and shall be
endorsed to name Lessor, the Holders, the Agent and the Lenders as
additional insureds. The policies shall also specifically provide that such
policies shall be considered primary insurance which shall apply to any
loss or claim before any contribution by any insurance which Lessor, any
Holder, the Agent or any Lender may have in force. In the operation of
the Properties, Lessee shall comply with applicable workers'
compensation laws and protect Lessor, each Holder, the Agent and each
Lender against any liability under such laws.
14.2 Permanent Hazard and Other Insurance.
(a) During the Term for each Property, Lessee shall
keep such Property insured against all risk of physical loss or
damage by fire and other risks and shall maintain builders' risk
insurance during construction of any Improvements or
Modifications in each case in amounts no less than the Termination
Value from time to time and on terms that (i) are no less favorable
than insurance covering other similar properties owned by Lessee
and (ii) are then carried by similarly situated companies conducting
business similar to that conducted by Lessee. The policies shall
name Lessee as the insured and shall be endorsed to name Lessor,
the Holders and the Agent (on behalf of the Lenders and the
Holders) as a named additional insured and loss payee, to the
extent of their respective interests; provided, so long as no Event of
Default exists, any loss payable under the insurance policies
required by this Section for losses up to $1,000,000 will be paid to
Lessee.
(b) If, during the Term with respect to a Property the
area in which such Property is located is designated a "flood-
prone" area pursuant to the Flood Disaster Protection Act of 1973,
or any amendments or supplements thereto or is in a zone
designated A or V, then Lessee shall comply with the National
Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973. In addition, Lessee will fully comply with
the requirements of the National Flood Insurance Act of 1968 and
the Flood Disaster Protection Act of 1973, as each may be
amended from time to time, and with any other Legal
Requirement, concerning flood insurance to the extent that it
applies to any such Property. During the Term, Lessee shall, in the
operation and use of each Property, maintain workers'
compensation insurance consistent with that carried by similarly
situated companies conducting business similar to that conducted
by Lessee and containing minimum liability limits of no less than
$100,000. In the operation of each Property, Lessee shall comply
with workers' compensation laws applicable to Lessee, and protect
Lessor, each Holder, the Agent and each Lender against any
liability under such laws.
14.3 Coverage.
(a) As of the date of this Lease and annually thereafter
during the Term, Lessee shall furnish Lessor, the Holders and the
Agent with certificates prepared by the insurers or insurance broker
of Lessee showing the insurance required under Sections 14.1 and
14.2 to be in effect, naming (to the extent of their respective
interests) Lessor, the Holders, the Agent and the Lenders as
additional insureds and loss payees and evidencing the other
requirements of this Article XIV. All such insurance shall be at the
cost and expense of Lessee and provided by nationally recognized,
financially sound insurance companies having an A+ or better
rating by A.M. Best's Key Rating Guide. Lessee shall cause such
certificates to include a provision for thirty (30) days' advance
written notice by the insurer to Lessor, the Holders and the Agent
in the event of cancellation or material alteration of such insurance.
If an Event of Default has occurred and is continuing and Lessor so
requests, Lessee shall deliver to Lessor copies of all insurance
policies required by Sections 14.1 and 14.2.
(b) Lessee agrees that the insurance policy or policies
required by Sections 14.1, 14.2(a) and 14.2(b) shall include an
appropriate clause pursuant to which any such policy shall provide
that it will not be invalidated should Lessee or any Contractor, as
the case may be, waive, at any time, any or all rights of recovery
against any party for losses covered by such policy or due to any
breach of warranty, fraud, action, inaction or misrepresentation by
Lessee or any Person acting on behalf of Lessee. Lessee hereby
waives any and all such rights against Lessor, the Holders, the
Agent and the Lenders to the extent of payments made to any such
Person under any such policy.
(c) Neither Lessor nor Lessee shall carry separate
insurance concurrent in kind or form or contributing in the event of
loss with any insurance required under this Article XIV, except
that Lessor may carry separate liability insurance at Lessor's sole
cost so long as (i) Lessee's insurance is designated as primary and
in no event excess or contributory to any insurance Lessor may
have in force which would apply to a loss covered under Lessee's
policy and (ii) each such insurance policy will not cause Lessee's
insurance required under this Article XIV to be subject to a
coinsurance exception of any kind.
(d) Lessee shall pay as they become due all premiums
for the insurance required by Section 14.1 and Section 14.2, shall
renew or replace each policy prior to the expiration date thereof or
otherwise maintain the coverage required by such Sections without
any lapse in coverage.
(e) Lessor and Lessee hereby waive all rights of
recovery and causes of action that either have or may have arisen
or that may arise hereafter against the other, whether caused by
negligence, intentional misconduct, or otherwise, for any damage
to premises, property or business caused by any perils to the extent,
but only to the extent, covered by fire and extended coverage,
building, contents and business interruption insurance, or for which
either party may be reimbursed as a result of such insurance
coverage affecting any loss suffered by such party; provided,
however, that the foregoing waivers shall apply only to the extent
of any recovery made by the parties hereto under any policy of
insurance now or hereafter issued, and provided, further, that the
foregoing waivers shall be ineffective if either (i) such waivers
invalidate any policy of insurance of the parties hereto, now or
hereafter issued or (ii) any Claim has been imposed on, incurred by
or asserted against Lessor for which Lessee is responsible under
any provision of any Operative Agreement (including without
limitation Section 13.1 of the Participation Agreement) and with
respect to which no recovery has been had by Lessor. Lessor and
Lessee will use their best efforts to have their respective insurance
companies waive their respective rights of subrogation as
contemplated herein, provided, the foregoing shall impose no
obligation on Lessor to obtain any insurance with respect to any
Property or other matter described in any Operative Agreement.
Notwithstanding the foregoing provisions of this paragraph, Lessor
waives no right of recovery and/or cause of action respecting
matters described in Section 13.2 of the Participation Agreement,
and Lessee acknowledges the same.
ARTICLE XV
15.1 Casualty and Condemnation.
(a) Subject to the provisions of the Agency Agreement
and this Article XV and Article XVI (in the event Lessee delivers,
or is obligated to deliver or is deemed to have delivered, a
Termination Notice), and prior to the occurrence and continuation
of a Default or an Event of Default, Lessee shall be entitled to
receive (and Lessor hereby irrevocably assigns to Lessee all of
Lessor's right, title and interest in) any condemnation proceeds,
award, compensation or insurance proceeds under Sections 14.2(a)
or (b) hereof to which Lessee or Lessor may become entitled by
reason of their respective interests in a Property (i) if all or a
portion of such 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 such Property or any part thereof is the subject of a
Condemnation; provided, however, if a Default or an Event of
Default shall have occurred and be continuing or if such award,
compensation or insurance proceeds shall exceed $1,000,000, then
such award, compensation or insurance proceeds shall be paid
directly to Lessor or, if received by Lessee, shall be held in trust
for Lessor, and shall be paid over by Lessee to Lessor and held in
accordance with the terms of this paragraph (a). All amounts held
by Lessor hereunder on account of any award, compensation or
insurance proceeds either paid directly to Lessor or turned over to
Lessor shall be held as security for the performance of Lessee's
obligations hereunder and under the other Operative Agreements.
(b) Lessee may appear in any proceeding or action to
negotiate, prosecute, adjust or appeal any claim for any award,
compensation or insurance payment on account of any such
Casualty or Condemnation and shall pay all expenses thereof. At
Lessee's reasonable request, and at Lessee's sole cost and expense,
Lessor and the Agent shall participate in any such proceeding,
action, negotiation, prosecution or adjustment. Lessor and Lessee
agree that this Lease shall control the rights of Lessor and Lessee
in and to any such award, compensation or insurance payment.
(c) If Lessee shall receive notice of a Casualty or a
Condemnation of a Property or any interest therein where damage
to the affected Property is estimated to equal or exceed twenty-five
percent (25%) of the Property Cost of such Property, Lessee shall
give notice thereof to Lessor and to the Agent promptly after
Lessee's receipt of such notice. In the event such a Casualty or
Condemnation occurs (regardless of whether Lessee gives notice
thereof), then Lessee shall be deemed to have delivered a
Termination Notice to Lessor and the Agent and the provisions of
Sections 16.1 and 16.2 shall apply.
(d) In the event of a Casualty or a Condemnation
(regardless of whether notice thereof must be given pursuant to
paragraph (c)), this Lease shall terminate with respect to the
applicable Property in accordance with Section 16.1 if Lessee,
within thirty (30) days after such occurrence, delivers to Lessor
and the Agent a notice to such effect.
(e) If pursuant to this Section 15.1 this Lease shall
continue in full force and effect following a Casualty or
Condemnation with respect to the affected Property, Lessee shall,
at its sole cost and expense and using, if available, the proceeds of
any award, compensation or insurance with respect to such
Casualty or Condemnation (including without limitation any such
award, compensation or insurance which has been received by the
Agent and which should be turned over to Lessee pursuant to the
terms of the Operative Agreements, and if not available or
sufficient, using its own funds), promptly and diligently repair any
damage to the applicable Property caused by such Casualty or
Condemnation in conformity with the requirements of Sections
10.1 and 11.1, using the as-built Plans and Specifications or
manufacturer's specifications for the applicable Improvements,
Equipment or other components of the applicable Property (as
modified to give effect to any subsequent Modifications, any
Condemnation affecting the applicable Property and all applicable
Legal Requirements), so as to restore the applicable Property to
substantially the same remaining economic value, useful life,
utility, condition, operation and function as existed immediately
prior to such Casualty or Condemnation (assuming all maintenance
and repair standards have been satisfied). In such event, title to the
applicable Property shall remain with Lessor.
(f) In no event shall a Casualty or Condemnation affect
Lessee's obligations to pay Rent pursuant to Article III.
(g) Notwithstanding anything to the contrary set forth
in Section 15.1(a) or Section 15.1(e), if during the Term with
respect to a Property a Casualty occurs with respect to such
Property or Lessee receives notice of a Condemnation with respect
to such Property, and following such Casualty or Condemnation,
the applicable Property cannot reasonably be restored, repaired or
replaced on or before the day one hundred eighty (180) days prior
to the Expiration Date or the date nine (9) months after the
occurrence of such Casualty or Condemnation (if such Casualty or
Condemnation occurs during the Term) to the substantially same
remaining economic value, useful life, utility, condition, operation
and function as existed immediately prior to such Casualty or
Condemnation (assuming all maintenance and repair standards
have been satisfied) or on or before such day such Property is not
in fact so restored, repaired or replaced, then Lessee shall be
required to exercise its Purchase Option for such Property on the
next Payment Date (notwithstanding the limits on such exercise
contained in Section 20.2) and pay Lessor the Termination Value
for such Property; provided, if any Default or Event of Default has
occurred and is continuing, Lessee shall also promptly (and in any
event within three (3) Business Days) pay Lessor any award,
compensation or insurance proceeds received on account of any
Casualty or Condemnation with respect to any Property; provided,
further, that if no Default or Event of Default has occurred and is
continuing, any Excess Proceeds shall be paid to Lessee. If a
Default has occurred and is continuing and any Loans, Holder
Advances or other amounts are owing with respect thereto, then
any Excess Proceeds (to the extent of any such Loans, Holder
Advances or other amounts owing with respect thereto) shall be
paid to Lessor, held as security for the performance of Lessee's
obligations hereunder and under the other Operative Agreements
and applied to such obligations upon the exercise of remedies in
connection with the occurrence of an Event of Default, with the
remainder of such Excess Proceeds in excess of such Loans,
Holder Advances and other amounts owing with respect thereto
being distributed to the Lessee.
15.2 Environmental Matters.
Promptly upon Lessee's actual knowledge of the presence
of Hazardous Substances in any portion of any Property or Properties in
concentrations and conditions that constitute an Environmental Violation
and which, in the reasonable opinion of Lessee, the cost to undertake any
legally required response, clean up, remedial or other action will or might
result in a cost to Lessee of more than $15,000, Lessee shall notify Lessor
in writing of such condition. In the event of any Environmental Violation
(regardless of whether notice thereof must be given), Lessee shall, not
later than thirty (30) days after Lessee has actual knowledge of such
Environmental Violation, either deliver to Lessor a Termination Notice
with respect to the applicable Property or Properties pursuant to Section
16.1, if applicable, or, at Lessee's sole cost and expense, promptly and
diligently undertake and complete any response, clean up, remedial or
other action (including without limitation the pursuit by Lessee of
appropriate action against any off-site or third party source for
contamination) necessary to remove, cleanup or remediate the
Environmental Violation in accordance with all Environmental Laws.
Any such undertaking shall be timely completed in accordance with
prudent industry standards. If Lessee does not deliver a Termination
Notice with respect to such Property pursuant to Section 16.1, Lessee
shall, upon completion of remedial action by Lessee, cause to be prepared
by a reputable environmental consultant acceptable to Lessor a report
describing the Environmental Violation and the actions taken by Lessee
(or its agents) in response to such Environmental Violation, and a
statement by the consultant that the Environmental Violation has been
remedied in full compliance with applicable Environmental Law. Not less
than sixty (60) days prior to any time that Lessee elects to cease operations
with respect to any Property or to remarket any Property pursuant to
Section 20.1 hereof or any other provision of any Operative Agreement,
Lessee at its expense shall cause to be delivered to Lessor a Phase I
environmental site assessment respecting such Property recently prepared
(no more than thirty (30) days prior to the date of delivery) by an
independent recognized professional acceptable to Lessor, the Majority
Holders and the Agent in their reasonable discretion and in form, scope
and content satisfactory to Lessor, the Majority Holders and the Agent in
their reasonable discretion. Notwithstanding any other provision of any
Operative Agreement, if Lessee fails to comply with the foregoing
obligation regarding the Phase I environmental site assessment, Lessee
shall be obligated to purchase such Property for its Termination Value and
shall not be permitted to exercise (and Lessor shall have no obligation to
honor any such exercise) any rights under any Operative Agreement
regarding a sale of such Property to a Person other than Lessee or any
Affiliate of Lessee.
15.3 Notice of Environmental Matters.
Promptly, but in any event within five (5) Business Days
from the date Lessee has actual knowledge thereof, Lessee shall provide to
Lessor written notice of any pending or threatened claim, action or
proceeding involving any Environmental Law or any Release on or in
connection with any Property or Properties. All such notices shall
describe in reasonable detail the nature of the claim, action or proceeding
and Lessee's proposed response thereto. In addition, Lessee shall provide
to Lessor, within five (5) Business Days of receipt, copies of all material
written communications with any Governmental Authority relating to any
Environmental Law in connection with any Property. Lessee shall also
promptly provide such detailed reports of any such material environmental
claims as may reasonably be requested by Lessor.
ARTICLE XVI
16.1 Termination Upon Certain Events.
If Lessee has delivered, or is deemed to have delivered,
written notice of a termination of this Lease with respect to the applicable
Property to Lessor and the Agent in the form described in Section 16.2(a)
(a "Termination Notice") pursuant to the provisions of this Lease, then (a)
following the applicable Casualty or Condemnation, this Lease shall
terminate with respect to the affected Property on the applicable
Termination Date or (b) pursuant to the second sentence of Section 15.2,
due to the occurrence of an Environmental Violation, this Lease shall
terminate with respect to the affected Property.
16.2 Procedures.
(a) A Termination Notice shall contain: (i) notice of
termination of this Lease with respect to the affected Property on a
Payment Date not more than sixty (60) days after Lessor's receipt
of such Termination Notice (the "Termination Date"); and (ii) a
binding and irrevocable agreement of Lessee to pay the
Termination Value for the applicable Property and purchase such
Property on such Termination Date.
(b) On each Termination Date, Lessee shall pay to
Lessor the Termination Value for the applicable Property, and
Lessor shall convey such Property or the remaining portion
thereof, if any, to Lessee (or Lessee's designee), all in accordance
with Section 20.2.
ARTICLE XVII
17.1 Lease Events of Default.
If any one (1) or more of the following events (each a "Lease Event of
Default") shall occur:
(a) Lessee shall fail to make payment of (i) any Basic
Rent (except as set forth in clause (ii)) within three (3) days after
the same has become due and payable or (ii) any Termination
Value, on the date any such payment is due and payable, or any
payment of Basic Rent or Supplemental Rent due on the due date
of any such payment of Termination Value, or any amount due on
the Expiration Date;
(b) Lessee shall fail to make payment of any
Supplemental Rent (other than Supplemental Rent referred to in
Section 17.1(a)(ii)) which has become due and payable within
three (3) days after receipt of notice that such payment is due;
(c) Lessee shall fail to maintain insurance as required
by Article XIV of this Lease or to deliver any requisite annual
certificate with respect thereto within ten (10) days of the date such
certificate is due under the terms hereof;
(d) (i) Lessee shall fail to observe or perform any term,
covenant or condition of Lessee under this Lease (including
without limitation the Incorporated Covenants) or any other
Operative Agreement to which Lessee is a party other than those
set forth in Sections 17.1(a), (b) or (c) hereof, or Lessee shall fail to
pay, or cause to be paid, any Imposition or shall fail to observe any
Legal Requirement regarding any Property (to the extent the failure
to observe such Legal Requirement results in a Material Adverse
Effect) and such failure shall continue for fifteen (15) days after
notice thereof to the Lessee, or (ii) any representation or warranty
made by Lessee set forth in this Lease (including without
limitation the Incorporated Representation and Warranties) or in
any other Operative Agreement or in any document entered into in
connection herewith or therewith or in any document, certificate or
financial or other statement delivered in connection herewith or
therewith shall be false or inaccurate in any material way when
made;
(e) An Agency Agreement Event of Default shall have occurred and be
continuing;
(f) Lessee or any of its Subsidiaries shall default
(beyond applicable periods of grace and/or notice and cure) in the
payment when due of any principal of or interest on any
Indebtedness having an outstanding principal amount of at least
$5,000,000; or any event or condition shall occur which results in
the acceleration of the maturity of any such Indebtedness or
enables the holder of any such Indebtedness or any Person acting
on such holder's behalf to accelerate the maturity thereof;
(g) The liquidation or dissolution of Lessee, or the
suspension of the business of Lessee, or the filing by Lessee of a
voluntary petition or an answer seeking reorganization,
arrangement, readjustment of its debts or for any other relief under
the United States Bankruptcy Code, as amended, or under any
other insolvency act or law, state or federal, now or hereafter
existing, or any other action of Lessee indicating its consent to,
approval of or acquiescence in, any such petition or proceeding;
the application by Lessee for, or the appointment by consent or
acquiescence of Lessee of a receiver, a trustee or a custodian of
Lessee for all or a substantial part of its property; the making by
Lessee of any assignment for the benefit of creditors; the inability
of Lessee or the admission by Lessee in writing of its inability to
pay its debts as they mature; or Lessee taking any corporate action
to authorize any of the foregoing;
(h) The filing of an involuntary petition against Lessee
in bankruptcy or seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the United
States Bankruptcy Code, as amended, or under any other
insolvency act or law, state or federal, now or hereafter existing; or
the involuntary appointment of a receiver, a trustee or a custodian
of Lessee for all or a substantial part of its property; or the issuance
of a warrant of attachment, execution or similar process against
any substantial part of the property of Lessee, and the continuance
of any of such events for ninety (90) days undismissed or
undischarged;
(i) The adjudication of Lessee as bankrupt or insolvent;
(j) The entering of any order in any proceedings
against Lessee or any Material Subsidiary decreeing the
dissolution, divestiture or split-up of Lessee or any Material
Subsidiary, and such order remains in effect for more than sixty
(60) days;
(k) Any report, certificate, financial statement or other
instrument delivered to Lessor by or on behalf of Lessee pursuant
to the terms of this Lease or any other Operative Agreement is
false or misleading in any material respect when made or
delivered;
(l) Any Lessee Credit Agreement Event of Default
shall have occurred and be continuing and shall not have been
waived;
(m) A final judgment or judgments for the payment of
money shall be rendered by a court or courts against Lessee or any
of its Material Subsidiaries in excess of $5,000,000 in the
aggregate, and (i) the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within forty-five (45) days from the
date of entry thereof, or (ii) Lessee or such Material Subsidiary
shall not, within said period of forty-five (45) days, or such longer
period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed
during such appeal, or (iii) such judgment or judgments shall not
be discharged (or provisions shall not be made for such discharge)
within forty-five (45) days after a decision has been reached with
respect to such appeal and the related stay has been lifted;
(n) Lessee or any member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in
excess of $2,000,000 which it shall have become liable to pay to
the PBGC or to a Pension Plan under Title IV of ERISA; or notice
of intent to terminate a Pension Plan or Pension Plans having
aggregate Unfunded Liabilities in excess of $2,000,000 shall be
filed under Title IV of ERISA by Lessee or any member of the
Controlled Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title
IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Pension Plan or Pension Plans or a proceeding
shall be instituted by a fiduciary of any such Pension Plan or
Pension Plans against Lessee or any member of the Controlled
Group to enforce Section 515 or 4219(c)(5) of ERISA; or a
condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Pension Plan
or Pension Plans must be terminated;
(o) (i) As a result of one (1) or more transactions after
the date of this Lease, any "person" or "group" of persons shall
have "beneficial ownership" (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended, and
the applicable rules and regulations thereunder) of fifty percent
(50%) or more of the outstanding common stock of Lessee; or (ii)
without limiting the generality of the foregoing, during any period
of twelve (12) consecutive months, commencing after the date of
this Lease, individuals who at the beginning of such period of
twelve (12) months were directors of Lessee shall cease for any
reason to constitute a majority of the board of directors of Lessee,
provided, that the relationships among the respective shareholders
of Lessee on the Initial Closing Date shall not be deemed to
constitute all or any combination of them as a "group" for purposes
of clause (o)(i); or
(p) Any Operative Agreement shall cease to be in full force and effect;
then, in any such event, Lessor may, in addition to the other rights and
remedies provided for in this Article XVII and in Section 18.1, terminate
this Lease by giving Lessee five (5) days notice of such termination, and
this Lease shall terminate, and all rights of Lessee under this Lease shall
cease. Lessee shall, to the fullest extent permitted by law, pay as
Supplemental Rent all costs and expenses incurred by or on behalf of
Lessor, including without limitation reasonable fees and expenses of
counsel, as a result of any Lease Event of Default hereunder.
17.2 Surrender of Possession.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated
pursuant to Section 17.1, Lessee shall, upon thirty (30) days written notice,
surrender to Lessor possession of the Properties. Lessor may enter upon
and repossess the Properties by such means as are available at law or in
equity, and may remove Lessee and all other Persons and any and all
personal property and Lessee's equipment and personalty and severable
Modifications from the Properties. Lessor shall have no liability by reason
of any such entry, repossession or removal performed in accordance with
applicable law. Upon the written demand of Lessor, Lessee shall return
the Properties promptly to Lessor, in the manner and condition required
by, and otherwise in accordance with the provisions of, Section 22.1(c)
hereof.
17.3 Reletting.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated
pursuant to Section 17.1, Lessor may, but shall be under no obligation to,
relet any or all of the Properties, for the account of Lessee or otherwise,
for such term or terms (which may be greater or less than the period which
would otherwise have constituted the balance of the Term) and on such
conditions (which may include concessions or free rent) and for such
purposes as Lessor may determine, and Lessor may collect, receive and
retain the rents resulting from such reletting. Lessor shall not be liable to
Lessee for any failure to relet any Property or for any failure to collect any
rent due upon such reletting.
17.4 Damages.
Neither (a) the termination of this Lease as to all or any of
the Properties pursuant to Section 17.1; (b) the repossession of all or any
of the Properties; nor (c) the failure of Lessor to relet all or any of the
Properties, the reletting of all or any portion thereof, nor the failure of
Lessor to collect or receive any rentals due upon any such reletting, shall
relieve Lessee of its liabilities and obligations hereunder, all of which shall
survive any such termination, repossession or reletting. If any Lease
Event of Default shall have occurred and be continuing and
notwithstanding any termination of this Lease pursuant to Section 17.1,
Lessee shall forthwith pay to Lessor all Rent and other sums due and
payable hereunder to and including without limitation the date of such
termination. Thereafter, on the days on which the Basic Rent or
Supplemental Rent, as applicable, are payable under this Lease or would
have been payable under this Lease if the same had not been terminated
pursuant to Section 17.1 and until the end of the Term hereof or what
would have been the Term in the absence of such termination, Lessee shall
pay Lessor, as current liquidated damages (it being agreed that it would be
impossible accurately to determine actual damages) an amount equal to the
Basic Rent and Supplemental Rent that are payable under this Lease or
would have been payable by Lessee hereunder if this Lease had not been
terminated pursuant to Section 17.1, less the net proceeds, if any, which
are actually received by Lessor with respect to the period in question of
any reletting of any Property or any portion thereof; provided, that
Lessee's obligation to make payments of Basic Rent and Supplemental
Rent under this Section 17.4 shall continue only so long as Lessor shall
not have received the amounts specified in Section 17.6. In calculating the
amount of such net proceeds from reletting, there shall be deducted all of
Lessor's, any Holder's, the Agent's and any Lender's reasonable expenses
in connection therewith, including without limitation repossession costs,
brokerage or sales commissions, fees and expenses for counsel and any
necessary repair or alteration costs and expenses incurred in preparation
for such reletting. To the extent Lessor receives any damages pursuant to
this Section 17.4, such amounts shall be regarded as amounts paid on
account of Rent. Lessee specifically acknowledges and agrees that its
obligations under this Section 17.4 shall be absolute and unconditional
under any and all circumstances and shall be paid and/or performed, as the
case may be, without notice or demand and without any abatement,
reduction, diminution, setoff, defense, counterclaim or recoupment
whatsoever.
17.5 Power of Sale.
Without limiting any other remedies set forth in this Lease,
in the event that a court of competent jurisdiction rules that this Lease
constitutes a mortgage, deed of trust or other secured financing as is the
intent of the parties, then Lessor and Lessee agree that Lessee has granted,
pursuant to Section 7.1(b) hereof and each Lease Supplement, a Lien
against the Properties WITH POWER OF SALE, and that, upon the
occurrence and during the continuance of any Lease Event of Default,
Lessor shall have the power and authority, to the extent provided by law,
after prior notice and lapse of such time as may be required by law, to
foreclose its interest (or cause such interest to be foreclosed) in all or any
part of the Properties.
17.6 Final Liquidated Damages.
If a Lease Event of Default shall have occurred and be
continuing, whether or not this Lease shall have been terminated pursuant
to Section 17.1 and whether or not Lessor shall have collected any current
liquidated damages pursuant to Section 17.4, Lessor shall have the right to
recover, by demand to Lessee and at Lessor's election, and Lessee shall
pay to Lessor, as and for final liquidated damages, but exclusive of the
indemnities payable under Section 13 of the Participation Agreement, and
in lieu of all current liquidated damages beyond the date of such demand
(it being agreed that it would be impossible accurately to determine actual
damages) the Termination Value. Upon payment of the amount specified
pursuant to the first sentence of this Section 17.6, Lessee shall be entitled
to receive from Lessor, either at Lessee's request or upon Lessor's
election, in either case at Lessee's cost, an assignment of Lessor's entire
right, title and interest in and to the Properties, Improvements, Fixtures,
Modifications, Equipment and all components thereof, in each case in
recordable form and otherwise in conformity with local custom and free
and clear of the Lien of this Lease (including without limitation the release
of any memoranda of Lease and/or the Lease Supplement recorded in
connection therewith) and any Lessor Liens. The Properties shall be
conveyed to Lessee "AS-IS, WHERE-IS" and in their then present
physical condition. If any statute or rule of law shall limit the amount of
such final liquidated damages to less than the amount agreed upon, Lessor
shall be entitled to the maximum amount allowable under such statute or
rule of law; provided, however, Lessee shall not be entitled to receive an
assignment of Lessor's interest in the Properties, the Improvements,
Fixtures, Modifications, Equipment or the components thereof unless
Lessee shall have paid in full the Termination Value. Lessee specifically
acknowledges and agrees that its obligations under this Section 17.6 shall
be absolute and unconditional under any and all circumstances and shall
be paid and/or performed, as the case may be, without notice or demand
and without any abatement, reduction, diminution, setoff, defense,
counterclaim or recoupment whatsoever.
17.7 Environmental Costs.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated
pursuant to Section 17.1, Lessee shall pay directly to any third party (or at
Lessor's election, reimburse Lessor) for the cost of any environmental
testing and/or remediation work undertaken respecting any Property, as
such testing or work is deemed appropriate in the reasonable judgment of
Lessor. Lessee shall pay all amounts referenced in the immediately
preceding sentence within ten (10) days of any request by Lessor for such
payment. The provisions of this Section 17.7 shall not limit the
obligations of Lessee under any Operative Agreement regarding
indemnification obligations, environmental testing, remediation and/or
work.
17.8 Waiver of Certain Rights.
If this Lease shall be terminated pursuant to Section 17.1,
Lessee waives, to the fullest extent permitted by Law, (a) any notice of re-
entry or the institution of legal proceedings to obtain re-entry or
possession; (b) any right of redemption, re-entry or possession; (c) the
benefit of any laws now or hereafter in force exempting property from
liability for rent or for debt; and (d) any other rights which might
otherwise limit or modify any of Lessor's rights or remedies under this
Article XVII.
17.9 Assignment of Rights Under Contracts.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated
pursuant to Section 17.1, Lessee shall upon Lessor's demand immediately
assign, transfer and set over to Lessor all of Lessee's right, title and
interest in and to each agreement executed by Lessee in connection with
the acquisition, installation, testing, use, development, construction,
operation, maintenance, repair, refurbishment and restoration of the
Properties (including without limitation all right, title and interest of
Lessee with respect to all warranty, performance, service and indemnity
provisions), as and to the extent that the same relate to the acquisition,
installation, testing, use, development, construction, operation,
maintenance, repair, refurbishment and restoration of the Properties or any
of them.
17.10 Remedies Cumulative.
The remedies herein provided shall be cumulative and in
addition to (and not in limitation of) any other remedies available at law,
equity or otherwise, including without limitation any mortgage foreclosure
remedies.
ARTICLE XVIII
18.1 Lessor's Right to Cure Lessee's Lease Defaults.
Lessor, without waiving or releasing any obligation or
Lease Event of Default, may (but shall be under no obligation to) remedy
any Lease Event of Default for the account and at the sole cost and
expense of Lessee, including without limitation the failure by Lessee to
maintain the insurance required by Article XIV, and may, to the fullest
extent permitted by law, and notwithstanding any right of quiet enjoyment
in favor of Lessee, enter upon any Property, and take all such action
thereon as may be necessary or appropriate therefor. No such entry shall
be deemed an eviction of any lessee. All out-of-pocket costs and expenses
so incurred (including without limitation fees and expenses of counsel),
together with interest thereon at the Overdue Rate from the date on which
such sums or expenses are paid by Lessor, shall be paid by Lessee to
Lessor on demand.
ARTICLE XIX
19.1 Provisions Relating to Lessee's Exercise of its Purchase Option.
Subject to Section 19.2, in connection with any termination
of this Lease with respect to any Property pursuant to the terms of Section
16.2, or in connection with Lessee's exercise of its Purchase Option, upon
the date on which this Lease is to terminate with respect to any Property,
and upon tender by Lessee of the amounts set forth in Sections 16.2(b) or
20.2, as applicable, Lessor shall execute and deliver to Lessee (or to
Lessee's designee) at Lessee's cost and expense an assignment (by deed or
other appropriate instrument) of Lessor's entire interest in such Property,
in each case in recordable form and otherwise in conformity with local
custom and free and clear of any Lessor Liens attributable to Lessor but
without any other warranties (of title or otherwise) from Lessor. Such
Property shall be conveyed to Lessee "AS-IS, "WHERE-IS" and in then
present physical condition.
19.2 No Purchase or Termination With Respect to Less than All of a Property.
Lessee shall not be entitled to exercise its Purchase Option or the
Sale Option separately with respect to a portion of any Property consisting
of Land, Equipment, Improvements and/or any subleasehold interest in
Land but shall be required to exercise its Purchase Option or the Sale
Option with respect to an entire Property.
ARTICLE XX
20.1 Purchase Option or Sale Option-General Provisions.
Not less than one hundred twenty (120) days and no more
than one hundred eighty (180) days prior to the Expiration Date or
(respecting the Purchase Option only) any Payment Date after the second
annual anniversary of the date of this Lease, Lessee may give Lessor and
the Agent irrevocable written notice (the "Election Notice") that Lessee is
electing to exercise either (a) the option to purchase all, but not less than
all, the Properties on the Expiration Date or on the Payment Date specified
in the Election Notice (the "Purchase Option") or (b) with respect to an
Election Notice given in connection with the Expiration Date only, the
option to remarket all, but not less than all, the Properties to a Person other
than Lessee or any Affiliate of Lessee and cause a sale of such Properties
to occur on the Expiration Date pursuant to the terms of Section 22.1 (the
"Sale Option"). If Lessee does not give an Election Notice indicating the
Purchase Option or the Sale Option at least one hundred twenty (120) days
and not more than one hundred eighty (180) days prior to the Expiration
Date, then, unless such Expiration Date is the final Expiration Date to
which the Term may be extended, the term of this Lease shall be extended
in accordance with Section 2.2 hereof; if such Expiration Date is the final
Expiration Date, then Lessee shall be deemed to have elected the Purchase
Option. If Lessee shall either (i) elect (or be deemed to have elected) to
exercise the Purchase Option or (ii) elect the Sale Option and fail to cause
the Properties to be sold in accordance with the terms of Section 22.1 on
the Expiration Date, then in either case Lessee shall pay to Lessor on the
date on which such purchase or sale is scheduled to occur an amount equal
to the Termination Value for all of the Properties (which the parties do not
intend to be a "bargain" purchase), in connection therewith, Lessee shall
comply with the terms and provisions of Section 22.1(c) to the same extent
as if Lessor had exercised its option to retain one (1) or more Properties
pursuant to Section 22.1(a) and, upon receipt of such amounts and
satisfaction of such obligations, Lessor shall transfer to Lessee all of
Lessor's right, title and interest in and to the Properties in accordance with
Section 20.2.
20.2 Lessee Purchase Option.
Provided, no Default or Event of Default shall have
occurred and be continuing (other than those that will be cured by the
payment of the Termination Value for the Properties) and provided, that
the Election Notice has been appropriately given specifying the Purchase
Option, Lessee shall purchase all of the Properties on the Expiration Date
or Payment Date at a price equal to the Termination Value for such
Properties (which the parties do not intend to be a "bargain" purchase
price).
Subject to Section 19.2, in connection with any termination
of this Lease with respect to any Property pursuant to the terms of Section
16.2, or in connection with Lessee's exercise of its Purchase Option, upon
the date on which this Lease is to terminate with respect to a Property or
all of the Properties, and upon tender by Lessee of the amounts set forth in
Section 16.2(b) or this Section 20.2, as applicable, Lessor shall execute,
acknowledge (where required) and deliver to Lessee, at Lessee's cost and
expense, each of the following: (a) a termination or assignment (as
requested by the Lessee) of each applicable Ground Lease (such
termination or assignment to be in form and substance reasonably
satisfactory to Lessor, the Majority Holders and the Agent) and special or
limited warranty Deeds conveying each Property (to the extent it is real
property not subject to a Ground Lease) to Lessee free and clear of the
Lien of this Lease, the Lien of the Credit Documents and any Lessor
Liens; (b) a Bill of Sale conveying each Property (to the extent it is
personal property) to Lessee free and clear of the Lien of this Lease, the
Lien of the Credit Documents and any Lessor Liens; (c) any real estate tax
affidavit or other document required by law to be executed and filed in
order to record the applicable Deed and/or the applicable Ground Lease
termination; and (d) FIRPTA affidavits. The applicable Property shall be
conveyed to Lessee "AS-IS, WHERE-IS" and in then present physical
condition.
If any Property is the subject of remediation efforts
respecting Hazardous Substances at the Expiration Date which could
materially and adversely impact the Fair Market Sales Value of such
Property (with materiality determined in Lessor's discretion), then Lessee
shall be obligated to repurchase each such Property pursuant to Section
20.2.
On the Expiration Date and/or any Payment Date on which
Lessee has elected to exercise its Purchase Option, Lessee shall pay (or
cause to be paid) to Lessor, the Agent and all other parties, as appropriate,
the sum of all costs and expenses incurred by any such party in connection
with the election by Lessee to exercise its Purchase Option and all Rent
and all other amounts then due and payable or accrued under this Lease
and/or any other Operative Agreement.
20.3 Third Party Sale Option.
(a) Provided, that (i) no Default or Event of Default
shall have occurred and be continuing and (ii) the Election Notice
has been appropriately given specifying the Sale Option, Lessee
shall undertake to cause a sale of the Properties on the Expiration
Date (all as specified in the Election Notice) in accordance with the
provisions of Section 22.1 hereof.
(b) In the event Lessee exercises the Sale Option then,
as soon as practicable and in all events not less than sixty (60) days
prior to the Expiration Date, Lessee at its expense shall cause to be
delivered to Lessor a Phase I environmental site assessment for
each of the Properties recently prepared (no more than thirty (30)
days old prior to the date of delivery) by an independent
recognized professional acceptable to Lessor, the Majority Holders
and the Agent in their reasonable discretion and in form, scope and
content satisfactory to Lessor, the Majority Holders and the Agent
in their reasonable discretion. In the event that Lessor and the
Agent shall not have received such environmental site assessment
by the date sixty (60) days prior to the Expiration Date or in the
event that such environmental assessment shall reveal the existence
of any material violation of Environmental Laws, other material
Environmental Violation or potential material Environmental
Violation (with materiality determined in each case in Lessor's
discretion), then Lessee on the Expiration Date shall pay to Lessor
an amount equal to the Termination Value for all of the Properties
and any and all other amounts due and owing hereunder. Upon
receipt of such payment and all other amounts due under the
Operative Agreements, Lessor shall transfer to Lessee all of
Lessor's right, title and interest in and to the Properties in
accordance with Section 19.1.
ARTICLE XXI
21.1 [Intentionally Omitted].
ARTICLE XXII
22.1 Sale Procedure.
(a) During the Marketing Period, Lessee, on behalf of
Lessor, shall obtain bids for the cash purchase of the Properties in
connection with a sale to one (1) or more third party purchasers to
be consummated on the Expiration Date (the "Sale Date") for the
highest price available, shall notify Lessor promptly of the name
and address of each prospective purchaser and the cash price which
each prospective purchaser shall have offered to pay for each such
Property and shall provide Lessor with such additional information
about the bids and the bid solicitation procedure as Lessor may
reasonably request from time to time. All such prospective
purchasers must be Persons other than Lessee or any Affiliate of
Lessee. On the Sale Date, Lessee shall pay (or cause to be paid) to
Lessor and all other parties, as appropriate, the sum of all costs and
expenses incurred by Lessor and/or the Agent (as the case may be)
in connection with such sale of one or more Properties, all Rent
and all other amounts then due and payable or accrued under this
Lease and/or any other Operative Agreement.
Lessor may reject any and all bids and may solicit and
obtain bids by giving Lessee written notice to that effect; provided,
however, that notwithstanding the foregoing, Lessor may not reject
the bids submitted by Lessee if such bids, in the aggregate, are
greater than or equal to the sum of the Limited Recourse Amount
for the Properties, and represent bona fide offers from one (1) or
more third party purchasers. If the highest price which a
prospective purchaser or the prospective purchasers shall have
offered to pay for the Properties on the Sale Date is less than the
sum of the Limited Recourse Amount for the Properties or if such
bids do not represent bona fide offers from one (1) or more third
parties or if there are no bids, Lessor may elect to retain the
Properties by giving Lessee prior written notice of Lessor's
election to retain the Properties, and promptly upon receipt of such
notice, Lessee shall surrender, or cause to be surrendered, each of
the Properties in accordance with the terms and conditions of
Section 10.1. Upon acceptance of any bid, the Lessor agrees, at
Lessee's request and expense, to execute a contract of sale with
respect to such sale, so long as the same is consistent with the
terms of this Article 22 and provides by its terms that it is
nonrecourse to Lessor.
Unless Lessor shall have elected to retain the Properties
pursuant to the provisions of the preceding paragraph, Lessee shall
arrange for Lessor to sell the Properties free and clear of the Lien
of this Lease and any Lessor Liens attributable to Lessor, without
recourse or warranty (of title or otherwise), for cash on the Sale
Date to the purchaser or purchasers offering the highest cash sales
price, as identified by Lessee or Lessor, as the case may be;
provided, however, solely as to Lessor or the Trust Company, in its
individual capacity, any Lessor Lien shall not constitute a Lessor
Lien so long as Lessor or the Trust Company, in its individual
capacity, is diligently and in good faith contesting, at Lessor's cost
and expense, such Lessor Lien by appropriate proceedings in
which event the applicable Sale Date, all without penalty or cost to
Lessee, shall be delayed for the period of such contest. To effect
such transfer and assignment, Lessor shall execute, acknowledge
(where required) and deliver to the appropriate purchaser each of
the following: (a) special or limited warranty Deeds conveying
each Property (to the extent it is real property titled to Lessor) and
an assignment of the Ground Lease conveying the leasehold
interest of Lessor in each Property (to the extent it is real property
and subject to a Ground Lease) to the appropriate purchaser free
and clear of the Lien of this Lease, the Lien of the Credit
Documents and any Lessor Liens; (b) a Bill of Sale conveying each
Property (to the extent it is personal property) titled to Lessor to
the appropriate purchaser free and clear of the Lien of this Lease,
the Lien of the Credit Documents and any Lessor Liens; (c) any
real estate tax affidavit or other document required by law to be
executed and filed in order to record each Deed and/or each
Ground Lease assignment; and (d) FIRPTA affidavits, as
appropriate. Lessee shall surrender the Properties so sold or
subject to such documents to each purchaser in the condition
specified in Section 10.1, or in such other condition as may be
agreed between Lessee and such purchaser. Lessee shall not take
or fail to take any action which would have the effect of
unreasonably discouraging bona fide third party bids for any
Property. If each of the Properties is not either (i) sold on the Sale
Date in accordance with the terms of this Section 22.1, or (ii)
retained by Lessor pursuant to an affirmative election made by
Lessor pursuant to the second sentence of the second paragraph of
this Section 22.1(a), then (x) Lessee shall be obligated to pay
Lessor on the Sale Date an amount equal to the aggregate
Termination Value less any sales proceeds received, and (y) Lessor
shall transfer each applicable Property to Lessee in accordance
with Section 20.2.
(b) If the Properties are sold on a Sale Date to one (1)
or more third party purchasers in accordance with the terms of
Section 22.1(a) and the aggregate purchase price paid for the
Properties is less than the sum of the aggregate Property Cost for
the Properties (hereinafter such difference shall be referred to as
the "Deficiency Balance"), then Lessee hereby unconditionally
promises to pay to Lessor on the Sale Date the lesser of (i) the
Deficiency Balance, or (ii) the Maximum Residual Guarantee
Amount for all of the Properties. On a Sale Date if (x) Lessor
receives the Termination Value for all Properties from one (1) or
more third party purchasers, (y) Lessor receives all other amounts
specified in the last sentence of the first paragraph of Section
22.1(a) and (z) the aggregate purchase price paid for all such
Properties on such date exceeds the sum of the aggregate Property
Cost for such Properties, then Lessee may retain such excess. If
the Properties are retained by Lessor pursuant to an affirmative
election made by Lessor pursuant to the provisions of Section
22.1(a), then Lessee hereby unconditionally promises to pay to
Lessor on the Sale Date an amount equal to the Maximum Residual
Guarantee Amount for the Properties. Any payment of the
foregoing amounts described in this Section 22.1(b) shall be made
together with a payment of all other amounts referenced in the last
sentence of the first paragraph of Section 22.1(a).
(c) In the event that the Properties are either sold to one
(1) or more third party purchasers on the Sale Date or retained by
Lessor in connection with an affirmative election made by Lessor
pursuant to the provisions of Section 22.1(a), then in either case on
the applicable Sale Date Lessee shall provide Lessor or such third
party purchaser (unless otherwise agreed by such third party
purchaser) with (i) all permits, certificates of occupancy,
governmental licenses and authorizations necessary to use, operate,
repair, access and maintain each such Property for the purpose it is
being used by Lessee, and (ii) such manuals, permits, easements,
licenses, intellectual property, know-how, rights-of-way and other
rights and privileges in the nature of an easement as are reasonably
necessary or desirable in connection with the use, operation, repair,
access to or maintenance of each such Property for its intended
purpose or otherwise as Lessor or such third party purchaser(s)
shall reasonably request (and a royalty-free license or similar
agreement to effectuate the foregoing on terms reasonably
agreeable to Lessor or such third party purchaser(s), as applicable).
All assignments, licenses, easements, agreements and other
deliveries required by clauses (i), (ii) and (iii) of this paragraph (c)
shall be in form reasonably satisfactory to Lessor or such third
party purchaser(s), as applicable, and shall be fully assignable
(including without limitation both primary assignments and
assignments given in the nature of security) without payment of
any fee, cost or other charge. Lessee shall also execute any
documentation requested by Lessor or such third party
purchaser(s), as applicable, evidencing the continuation or
assignment of each Ground Lease.
22.2 Application of Proceeds of Sale.
Lessor shall apply the proceeds of sale of any Property in the following
order of priority:
(a) FIRST, to pay or to reimburse Lessor (and/or the
Agent, as the case may be) for the payment of all reasonable costs
and expenses incurred by Lessor (and/or the Agent, as the case
may be) in connection with the sale (to the extent Lessee has not
satisfied its obligation to pay such costs and expenses);
(b) SECOND, so long as the Credit Agreement is in
effect and any Holder Advances or any amount is owing to the
Holders under any Operative Agreement, to the Agent to be
applied pursuant to intercreditor provisions between the Lenders
and the Holders contained in the Operative Agreements; and
(c) THIRD, to Lessee.
22.3 Indemnity for Excessive Wear.
If the proceeds of the sale described in Section 22.1 with
respect to the Properties shall be less than the Limited Recourse Amount
with respect to the Properties, and at the time of such sale it shall have
been reasonably determined (pursuant to the Appraisal Procedure) that the
Fair Market Sales Value of the Properties shall have been impaired by
greater than expected wear and tear during the term of the Lease, Lessee
shall pay to Lessor within ten (10) days after receipt of Lessor's written
statement (i) the amount of such excess wear and tear determined by the
Appraisal Procedure or (ii) the amount of the Sale Proceeds Shortfall,
whichever amount is less.
22.4 Appraisal Procedure.
For determining the Fair Market Sales Value of the
Properties or any other amount which may, pursuant to any provision of
any Operative Agreement, be determined by an appraisal procedure,
Lessor and Lessee shall use the following procedure (the "Appraisal
Procedure"). Lessor and Lessee shall endeavor to reach a mutual
agreement as to such amount for a period of ten (10) days from
commencement of the Appraisal Procedure under the applicable section of
the Lease, and if they cannot agree within ten (10) days, then two (2)
qualified appraisers, one (1) chosen by Lessee and one (1) chosen by
Lessor, shall mutually agree thereupon, but if either party shall fail to
choose an appraiser within twenty (20) days after notice from the other
party of the selection of its appraiser, then the appraisal by such appointed
appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers
cannot agree within twenty (20) days after both shall have been appointed,
then a third appraiser shall be selected by the two (2) appraisers or, failing
agreement as to such third appraiser within thirty (30) days after both shall
have been appointed, by the American Arbitration Association. The
decisions of the three (3) appraisers shall be given within twenty (20) days
of the appointment of the third appraiser and the decision of the appraiser
most different from the average of the other two (2) shall be discarded and
such average shall be binding on Lessor and Lessee; provided, that if the
highest appraisal and the lowest appraisal are equidistant from the third
appraisal, the third appraisal shall be binding on Lessor and Lessee. The
fees and expenses of the appraiser appointed by Lessee shall be paid by
Lessee; the fees and expenses of the appraiser appointed by Lessor
shall be paid by Lessor (such fees and expenses not being indemnified
pursuant to Section 13 of the Participation Agreement); and the fees and
expenses of the third appraiser shall be divided equally between Lessee
and Lessor.
22.5 Certain Obligations Continue.
During the Marketing Period, the obligation of Lessee to
pay Rent with respect to the Properties (including without limitation the
installment of Basic Rent due on the Expiration Date) shall continue
undiminished until payment in full to Lessor of the sale proceeds, if any,
the Maximum Residual Guarantee Amount, the amount due under Section
22.3, if any, and all other amounts due to Lessor or any other Person with
respect to all Properties or any Operative Agreement. Lessor shall have
the right, but shall be under no duty, to solicit bids, to inquire into the
efforts of Lessee to obtain bids or otherwise to take action in connection
with any such sale, other than as expressly provided in this Article XXII.
ARTICLE XXIII
23.1 Holding Over.
If Lessee shall for any reason remain in possession of a
Property after the expiration or earlier termination of this Lease as to such
Property (unless such Property is conveyed to Lessee), such possession
shall be as a tenancy at sufferance during which time Lessee shall continue
to pay Supplemental Rent that would be payable by Lessee hereunder
were the Lease then in full force and effect with respect to such Property
and Lessee shall continue to pay Basic Rent at one hundred ten percent
(110%) of the Basic Rent that would otherwise be due and payable at such
time. Such Basic Rent shall be payable from time to time upon demand
by Lessor and such additional ten percent (10%) amount shall be applied
by Lessor to the payment of the Loans pursuant to the Credit Agreement
and the Holder Advances pursuant to the Trust Agreement pro rata
between the Loans and the Holder Advances. During any period of
tenancy at sufferance, Lessee shall, subject to the second preceding
sentence, be obligated to perform and observe all of the terms, covenants
and conditions of this Lease, but shall have no rights hereunder other than
the right, to the extent given by law to tenants at sufferance, to continue
their occupancy and use of such Property. Nothing contained in this
Article XXIII shall constitute the consent, express or implied, of Lessor to
the holding over of Lessee after the expiration or earlier termination of this
Lease as to any Property (unless such Property is conveyed to Lessee) and
nothing contained herein shall be read or construed as preventing Lessor
from maintaining a suit for possession of such Property or exercising any
other remedy available to Lessor at law or in equity.
ARTICLE XXIV
24.1 Risk of Loss.
During the Term, unless Lessee shall not be in actual
possession of any Property in question solely by reason of Lessor's
exercise of its remedies of dispossession under Article XVII, the risk of
loss or decrease in the enjoyment and beneficial use of such Property as a
result of the damage or destruction thereof by fire, the elements, casualties,
thefts, riots, wars or otherwise is assumed by Lessee, and Lessor shall in
no event be answerable or accountable therefor.
ARTICLE XXV
25.1 Assignment.
(a) Lessee may not assign this Lease or any of its rights
or obligations hereunder or with respect to any Property in whole
or in part to any Person without the prior written consent of the
Agent, the Lenders, the Holders and Lessor.
(b) No assignment by Lessee (referenced in this Section
25.1 or otherwise) or other relinquishment of possession to any
Property shall in any way discharge or diminish any of the
obligations of Lessee to Lessor hereunder and Lessee shall remain
directly and primarily liable under this Lease as to any assignment
regarding this Lease.
25.2 Subleases.
(a) Promptly, but in any event within five (5) Business
Days, following the execution and delivery of any sublease
permitted by this Article XXV, Lessee shall notify Lessor and the
Agent of the execution of such sublease. As of the date of each
Lease Supplement, Lessee shall lease the respective Properties
described in such Lease Supplement from Lessor, and any existing
tenant respecting such Property shall automatically be deemed to
be a subtenant of Lessee and not a tenant of Lessor.
(b) Without the prior written consent of the Agent, any
Lender, any Holder or Lessor and subject to the other provisions of
this Section 25.2, Lessee may sublet (i) any Property or portion
thereof to any wholly-owned Subsidiary of Lessee and/or (ii) up to
twenty-five percent of the total square footage of the Properties to
any Person that is not a wholly-owned Subsidiary of Lessee.
Except as referenced in the immediately preceding sentence, no
other subleases shall be permitted unless consented to in writing by
the Lessor, the Agent and the Majority Holders. All subleasing
shall be done on market terms and shall in no way diminish the fair
market value or useful life of any applicable Property.
(c) No sublease (referenced in this Section 25.2 or
otherwise) or other relinquishment of possession to any Property
shall in any way discharge or diminish any of Lessee's obligations
to Lessor hereunder and Lessee shall remain directly and primarily
liable under this Lease as to such Property, or portion thereof, so
sublet. During the Basic Term, the term of any such sublease shall
not extend beyond the Basic Term. During any Renewal Term, the
term of any such sublease shall not extend beyond such Renewal
Term. Each sublease shall be expressly subject and subordinate to
this Lease.
ARTICLE XXVI
26.1 No Waiver.
No failure by Lessor or Lessee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
upon a default hereunder, and no acceptance of full or partial payment of
Rent during the continuance of any such default, shall constitute a waiver
of any such default or of any such term. To the fullest extent permitted by
law, no waiver of any default shall affect or alter this Lease, and this Lease
shall continue in full force and effect with respect to any other then
existing or subsequent default.
ARTICLE XXVII
27.1 Acceptance of Surrender.
No surrender to Lessor of this Lease or of all or any portion
of any Property or of any part of any thereof or of any interest therein shall
be valid or effective unless agreed to and accepted in writing by Lessor
and the Agent and no act by Lessor or the Agent or any representative or
agent of Lessor or the Agent, other than a written acceptance, shall
constitute an acceptance of any such surrender.
27.2 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, (b) any right, title or interest in any Property,
(c) any Notes, or (d) a beneficial interest in Lessor.
ARTICLE XXVIII
28.1 Incorporation of Covenants.
Reference is made to the Lessee Credit Agreement and the
representations and warranties of Lessee contained in Section 3 of the
Lessee Credit Agreement (hereinafter referred to as the "Incorporated
Representations and Warranties") and the covenants contained in Sections
4 and 5 of the Lessee Credit Agreement (hereinafter referred to as the
"Incorporated Covenants"). Lessee agrees with Lessor that the
Incorporated Representations and Warranties and the Incorporated
Covenants (and all other relevant provisions of the Lessee Credit
Agreement related thereto, including without limitation the defined terms
contained in Section 1 thereof which are used in the Incorporated
Representations and Warranties and the Incorporated Covenants) are
hereby incorporated by reference into this Lease to the same extent and
with the same effect as if set forth fully herein and shall inure to the
benefit of Lessor, without giving effect to any waiver, amendment,
modification or replacement of the Lessee Credit Agreement or any term
or provision of the Incorporated Representations and Warranties or the
Incorporated Covenants occurring subsequent to the date of this Lease,
except to the extent otherwise specifically provided in the following
provisions of this paragraph. In the event a waiver is granted under the
Lessee Credit Agreement or an amendment or modification is executed
with respect to the Lessee Credit Agreement, and such waiver, amendment
and/or modification affects the Incorporated Representations and
Warranties or the Incorporated Covenants, then such waiver, amendment
or modification shall be effective with respect to the Incorporated
Representations and Warranties and the Incorporated Covenants as
incorporated by reference into this Lease only if consented to in writing by
the Lessor, the Agent and the Majority Holders. In the event of any
replacement of the Lessee Credit Agreement with a similar credit facility
(the "New Facility") the representations and warranties and covenants
contained in the New Facility which correspond to the representations and
warranties and covenants contained in Section 3 and Sections 4 and 5,
respectively, of the Lessee Credit Agreement shall become the
Incorporated Representations and Warranties and the Incorporated
Covenants hereunder only if consented to in writing by Lessor, the Agent
and the Majority Holders and, if such consent is not granted or if the
Lessee Credit Agreement is terminated and not replaced, then the
representations and warranties and covenants contained in Section 3 and
Sections 4 and 5, respectively, of the Lessee Credit Agreement (together
with any modifications or amendments approved in accordance with this
paragraph) shall continue to be the Incorporated Representations and
Warranties and the Incorporated Covenants hereunder.
ARTICLE XXIX
29.1 Notices.
All notices required or permitted to be given under this
Lease shall be in writing and delivered as provided in the Participation
Agreement.
ARTICLE XXX
30.1 Miscellaneous.
Anything contained in this Lease to the contrary
notwithstanding, all claims against and liabilities of Lessee or Lessor
arising from events commencing prior to the expiration or earlier
termination of this Lease shall survive such expiration or earlier
termination. If any provision of this Lease shall be held to be
unenforceable in any jurisdiction, such unenforceability shall not affect the
enforceability of any other provision of this Lease and such jurisdiction or
of such provision or of any other provision hereof in any other jurisdiction.
30.2 Amendments and Modifications.
Neither this Lease nor any Lease Supplement may be
amended, waived, discharged or terminated except in accordance with the
provisions of Section 14.5 of the Participation Agreement.
30.3 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.
30.4 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.
30.5 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 (1) and the same instrument.
30.6 GOVERNING LAW.
THIS LEASE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NORTH CAROLINA, EXCEPT TO THE EXTENT THE LAWS OF
THE STATE WHERE A PARTICULAR PROPERTY IS LOCATED
ARE REQUIRED TO APPLY.
30.7 Calculation of Rent.
All calculation of Rent payable hereunder shall be
computed based on the actual number of days elapsed over a year of three
hundred sixty (360) days or, to the extent such Rent is based on the Prime
Lending Rate, three hundred sixty-five (365) (or three hundred sixty-six
(366), as applicable) days.
30.8 Memoranda of Lease and Lease Supplements.
This Lease shall not be recorded; provided, Lessor and
Lessee shall promptly record (a) a memorandum of this Lease and the
applicable Lease Supplement (in substantially the form of Exhibit B
attached hereto) regarding each Property promptly after the acquisition
thereof in the local filing office with respect thereto, in all cases at
Lessee's cost and expense, and as required under applicable law to
sufficiently evidence this Lease and any such Lease Supplement in the
applicable real estate filing records.
30.9 Allocations between the Lenders and the Holders.
Notwithstanding any other term or provision of this Lease
to the contrary, the allocations of the proceeds of the Properties and any
and all other Rent and other amounts received hereunder shall be subject
to the inter-creditor provisions between the Lenders and the Holders
contained in the Operative Agreements (or as otherwise agreed among the
Lenders and the Holders from time to time).
30.10 Limitations on Recourse.
Notwithstanding anything contained in this Lease to the
contrary, Lessee agrees to look solely to Lessor's estate and interest in the
Properties (and in no circumstance to the Agent, the Lenders, the Holders
or otherwise to Lessor) for the collection of any judgment requiring the
payment of money by Lessor in the event of liability by Lessor, and no
other property or assets of Lessor or any shareholder, owner or partner
(direct or indirect) in or of Lessor, or any director, officer, employee,
beneficiary, Affiliate of any of the foregoing shall be subject to levy,
execution or other enforcement procedure for the satisfaction of the
remedies of Lessee under or with respect to this Lease, the relationship of
Lessor and Lessee hereunder or Lessee's use of the Properties or any other
liability of Lessor to Lessee. Nothing in this Section shall be interpreted
so as to limit the terms of Sections 6.1 or 6.2 or the provisions of Section
14.10 of the Participation Agreement.
30.11 WAIVERS OF JURY TRIAL.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY, TO THE FULLEST
EXTENT ALLOWED BY APPLICABLE LAW, WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS LEASE AND FOR ANY COUNTERCLAIM THEREIN.
30.12 Exercise of Lessor Rights.
Lessee hereby acknowledges and agrees that the rights and
powers of Lessor under this Lease have been assigned to the Agent
pursuant to the terms of the Security Agreement and the other Operative
Agreements.
30.13 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION.
(a) Any legal action or proceeding with respect to this
Lease may be brought in the courts of the State of North Carolina in
Mecklenburg County or of the United States for the Western District
of North Carolina, and, by execution and delivery of this Lease, each
of the parties to this Lease hereby irrevocably accepts for itself and
in respect of its property, generally and unconditionally, the
nonexclusive jurisdiction of such courts. Each of the parties to this
Lease further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to
Section 29.1, such service to become effective three (3) days after
such mailing. Nothing herein shall affect the right of any party to
serve process in any other manner permitted by Law or to commence
legal proceedings or to otherwise proceed against any party in any
other jurisdiction.
(b) Each of the parties to this Lease hereby irrevocably
waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising
out of or in connection with this Lease brought in the courts referred
to in subsection (a) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
(c) Notwithstanding the provisions of Section 30.13(a) to
the contrary, upon demand of any party hereto, whether made before
or after institution of any judicial proceeding, any Dispute between
or among parties to this Lease shall be resolved by binding
arbitration as provided herein. Institution of a judicial proceeding by
a party does not waive the right of that party to demand arbitration
hereunder. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to
arbitration, claims brought as class actions, claims arising from this
Lease executed in the future, or claims arising out of or connected
with the transaction reflected by this Lease.
Arbitration shall be conducted under and governed by the
Arbitration Rules of the AAA and Title 9 of the United States Code.
All arbitration hearings shall be conducted in Charlotte, North
Carolina. The expedited procedures set forth in Rule 51 et seq. of
the Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any
Dispute. A judgment upon the award may be entered in any court
having jurisdiction. The panel from which all arbitrators are selected
shall be comprised of licensed attorneys. The single arbitrator
selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state
where the hearing will be conducted or if such person is not
available to serve, the single arbitrator may be a licensed attorney.
Notwithstanding the foregoing, this arbitration provision does not
apply to disputes under or related to swap agreements.
Notwithstanding the preceding binding arbitration
provisions, the parties to this Lease agree to preserve, without
diminution, certain remedies that the Agent on behalf of the
Lenders and the Holders may employ or exercise freely,
independently or in connection with an arbitration proceeding or
after an arbitration action is brought. The Agent on behalf of the
Lenders and the Holders shall have the right to proceed in any
court of proper jurisdiction or by self-help to exercise or prosecute
the following remedies, as applicable (i) all rights to foreclose
against any real or personal property or other security by exercising
a power of sale granted under any Operative Agreement or under
applicable Law or by judicial foreclosure and sale, including a
proceeding to confirm the sale; (ii) all rights of self-help including
peaceful occupation of real property and collection of rents, set-off,
and peaceful possession of personal property; (iii) obtaining
provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver
and filing an involuntary bankruptcy proceeding; and (iv) when
applicable, a judgment by confession of judgment. Preservation of
these remedies does not limit the power of an arbitrator to grant
similar remedies that may be requested by a party in a Dispute.
The parties hereto agree that they shall not have a remedy
of special, punitive or exemplary damages against the other in any
Dispute and hereby waive any right or claim to special, punitive or
exemplary damages they have now or which may arise in the
future in connection with any Dispute whether the Dispute is
resolved by arbitration or judicially.
By execution and delivery of this Lease, each of the parties
hereto accepts, for itself and in connection with its properties,
generally and unconditionally, the non-exclusive jurisdiction
relating to any arbitration proceedings conducted under the
Arbitration Rules in Charlotte, North Carolina and irrevocably
agrees to be bound by any final judgment rendered thereby in
connection with this Lease from which no appeal has been taken or
is available.
30.14 USURY SAVINGS PROVISION.
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND CONTRACT IN
STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. TO
THE EXTENT ANY RENT OR PAYMENTS HEREUNDER ARE HEREINAFTER CHARACTERIZED BY ANY
COURT OF COMPETENT JURISDICTION AS THE REPAYMENT OF PRINCIPAL AND INTEREST
THEREON, THIS SECTION 30.14 SHALL APPLY. ANY SUCH RENT OR PAYMENTS SO
CHARACTERIZED AS INTEREST MAY BE REFERRED TO HEREIN AS "INTEREST." ALL
AGREEMENTS AMONG THE PARTIES HERETO ARE HEREBY LIMITED BY THE PROVISIONS OF
THIS PARAGRAPH WHICH SHALL OVERRIDE AND CONTROL ALL SUCH AGREEMENTS, WHETHER
NOW EXISTING OR HEREAFTER ARISING AND WHETHER WRITTEN OR ORAL. IN
NO WAY, NOR IN ANY EVENT OR CONTINGENCY (INCLUDING WITHOUT LIMITATION
PREPAYMENT OR ACCELERATION OF THE MATURITY OF ANY OBLIGATION), SHALL ANY
INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR RECEIVED UNDER THIS
LEASE OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER
APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF ANY OF THE OPERATIVE
AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST WOULD OTHERWISE
BE PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY SUCH CONSTRUCTION
SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH AMOUNTS
UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED TO THE
MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW, WITHOUT THE
NECESSITY OF EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT. IF
LESSOR SHALL EVER RECEIVE ANYTHING OF VALUE WHICH IS CHARACTERIZED AS
INTEREST WITH RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR UNDER APPLICABLE
LAW AND WHICH WOULD, APART FROM THIS PROVISION, BE IN EXCESS OF THE MAXIMUM
LAWFUL AMOUNT, AN AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE BEEN
EXCESSIVE INTEREST SHALL, WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF
THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL AND NOT TO THE PAYMENT OF
INTEREST, OR REFUNDED TO LESSEE OR ANY OTHER PAYOR THEREOF, IF AND TO THE
EXTENT SUCH AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE EXCEEDS THE COMPONENT
OF PAYMENTS DEEMED TO BE PRINCIPAL. THE RIGHT TO DEMAND PAYMENT OF ANY
AMOUNTS EVIDENCED BY ANY OF THE OPERATIVE AGREEMENTS DOES NOT INCLUDE THE
RIGHT TO RECEIVE ANY INTEREST WHICH HAS NOT OTHERWISE ACCRUED ON THE DATE OF
SUCH DEMAND, AND LESSOR DOES NOT INTEND TO CHARGE OR RECEIVE ANY
UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND. ALL INTEREST PAID OR AGREED
TO BE PAID TO LESSOR SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE
AMORTIZED, PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED TERM
(INCLUDING WITHOUT LIMITATION ANY RENEWAL OR EXTENSION) OF THIS LEASE
SO THAT THE AMOUNT OF INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED
THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED BY APPLICABLE LAW.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Lease to be
duly executed and delivered as of the date first above written.
PERFORMANCE FOOD GROUP COMPANY
By: /s/ Roger L. Boeve
Name: Roger L. Boeve
Title: Executive VP. / Chief
Financial Officer
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not individually, but solely as
the Owner Trustee under the
PFG Real Estate Trust 1997-1,
as Lessor
By: /s/ Nancy M. Dahl
Name: Nancy M. Dahl
Title: Vice President
Receipt of this original
counterpart of the foregoing
Lease is hereby acknowledged
as the date hereof
FIRST UNION NATIONAL BANK,
as the Agent
By:
Name:
Title:
<PAGE>
Performance Food Group Company
Richmond, Virginia
Gentlemen:
Re: Registration Statements Nos. 333-12223 and 33-72400
With respect to the subject registration statements, we acknowledge our
awareness of the use therein of our report dated October 27, 1997 related to
our review of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered a part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
Very truly yours,
KPMG PEAT MARWICK LLP
Richmond, Virginia
November 3, 1997
<PAGE>
[TYPE] EX-27
[DESCRIPTION]ARTICLE 5 FIN. DATA SCHEDULE FOR 3RD QUARTER ENDED SEPT. 27, 1997
[ARTICLE]5
[MULTIPLIER]1000
<TABLE>
<S> <C>
[PERIOD-TYPE] 9-MOS
[FISCAL-YEAR-END] DEC-27-1997
[PERIOD-START] DEC-29-1996
[PERIOD-END] SEP-27-1997
[CASH] 4896
[SECURITIES] 0
[RECEIVABLES] 70881
[ALLOWANCES] 2331
[INVENTORY] 68212
[CURRENT-ASSETS] 145989
[PP&E] 108363
[DEPRECIATION] 41864
[TOTAL-ASSETS] 255000
[CURRENT-LIABILITIES] 96682
[BONDS] 0
[PREFERRED-MANDATORY] 0
[PREFERRED] 0
[COMMON] 121
[OTHER-SE] 0
[TOTAL-LIABILITY-AND-EQUITY] 255000
[SALES] 897651
[TOTAL-REVENUES] 897651
[CGS] 784641
[TOTAL-COSTS] 95951
[OTHER-EXPENSES] 1117
[LOSS-PROVISION] 306
[INTEREST-EXPENSE] 1385
[INCOME-PRETAX] 15942
[INCOME-TAX] 6153
[INCOME-CONTINUING] 15942
[DISCONTINUED] 0
[EXTRAORDINARY] 0
[CHANGES] 0
[NET-INCOME] 9789
[EPS-PRIMARY] .79
[EPS-DILUTED] .79
</TABLE>
