LEASE AGREEMENT
Dated as of June 9, 2000
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually,
but solely as the Owner Trustee
under the PFG Real Estate Trust 2000-1,
as Lessor
and
Respecting each particular Property,
the Credit Party referenced on the signature pages hereto
which has executed a Lease Supplement with respect to such
Property
or the Eligible Lessee designated as a Lessee in any
Lease Supplement respecting such Property,
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 June 9, 2000, between First Security Bank, National
Association, not individually, but solely as the Owner
Trustee under the PFG Real Estate Trust 2000-1 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 2
1.1 Definitions. 2
1.2 Interpretation. 2
1.3 No Joint or Several Liability. 2
ARTICLE II 3
2.1 Property. 3
2.2 Lease Term. 3
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 5
5.1 Quiet Enjoyment. 5
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 9
8.1 Condition of the Properties. 9
8.2 Possession and Use of the Properties. 10
8.3 Integrated Properties. 11
ARTICLE IX 11
9.1 Compliance With Legal Requirements, Insurance
Requirements and Manufacturer's Specifications and
Standards. 11
ARTICLE X 12
10.1 Maintenance and Repair; Return. 12
10.2 Environmental Inspection. 13
ARTICLE XI 14
11.1 Modifications. 14
ARTICLE XII 15
12.1 Warranty of Title. 15
ARTICLE XIII 16
13.1 Permitted Contests Other Than in Respect of
Indemnities. 16
13.2 Impositions, Utility Charges, Other Matters;
Compliance with Legal Requirements. 16
ARTICLE XIV 17
14.1 Public Liability and Workers' Compensation
Insurance. 17
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. 21
15.3 Notice of Environmental Matters. 22
ARTICLE XVI 22
16.1 Termination Upon Certain Events. 22
16.2 Procedures. 23
ARTICLE XVII 23
17.1 Lease Events of Default. 23
17.2 Surrender of Possession. 27
17.3 Reletting. 27
17.4 Damages. 27
17.5 Power of Sale. 28
17.6 Final Liquidated Damages. 28
17.7 Environmental Costs. 29
17.8 Waiver of Certain Rights. 29
17.9 Assignment of Rights Under Contracts. 30
17.10 Remedies Cumulative. 30
ARTICLE XVIII 30
18.1 Lessor's Right to Cure Lessee's Lease Defaults. 30
ARTICLE XIX 31
19.1 Provisions Relating to Lessee's Exercise of its
Purchase Option. 31
19.2 No Purchase or Termination With Respect to Less
than All of a Property. 31
ARTICLE XX 31
20.1 Purchase Option or Sale Option-General Provisions. 31
20.2 Lessee Purchase Option. 32
20.3 Third Party Sale Option. 33
ARTICLE XXI 34
21.1 [Intentionally Omitted]. 34
ARTICLE XXII 34
22.1 Sale Procedure. 34
22.2 Application of Proceeds of Sale. 37
22.3 Indemnity for Excessive Wear. 37
22.4 Appraisal Procedure. 37
22.5 Certain Obligations Continue. 38
ARTICLE XXIII 38
23.1 Holding Over. 38
ARTICLE XXIV 39
24.1 Risk of Loss. 39
ARTICLE XXV 39
25.1 Assignment. 39
25.2 Subleases. 39
ARTICLE XXVI 40
26.1 No Waiver. 40
ARTICLE XXVII 40
27.1 Acceptance of Surrender. 40
27.2 No Merger of Title. 41
ARTICLE XXVIII 41
28.1 Incorporation of Covenants. 41
ARTICLE XXIX 42
29.1 Notices. 42
ARTICLE XXX 42
30.1 Miscellaneous. 42
30.2 Amendments and Modifications. 42
30.3 Successors and Assigns. 42
30.4 Headings and Table of Contents. 43
30.5 Counterparts. 43
30.6 GOVERNING LAW. 43
30.7 Calculation of Rent. 43
30.8 Memoranda of Lease and Lease Supplements. 43
30.9 Allocations between the Lenders and the Holders. 43
30.10 Limitations on Recourse. 44
30.11 WAIVERS OF JURY TRIAL. 44
30.12 Exercise of Lessor Rights. 44
30.13 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION. 44
30.14 USURY SAVINGS PROVISION. 45
EXHIBITS
EXHIBIT A - Lease Supplement No. ____
EXHIBIT B - Memorandum of Lease and Lease Supplement No.
LEASE AGREEMENT
THIS LEASE AGREEMENT dated as of June 9, 2000 (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
2000-1, as lessor (the "Lessor"), and respecting each
particular Property subject to this Lease as of the Initial
Closing Date, the Credit Party referenced on the signature
pages hereto which has executed a Lease Supplement with
respect to such Property and respecting any other Property
which becomes subject to this Lease after the Initial Closing
Date, each other Eligible Lessee designated as a Lessee in
any Lease Supplement respecting any such Property, as lessee
(each such entity with respect to each such Property may be
referred to herein as the "Lessee").
PRELIMINARY STATEMENT:
This Lease is a master lease pursuant to which the
Lessor shall lease to each applicable Lessee one or more
individual Properties from time to time which such Lessee has
identified for acquisition or ground leasing by the Lessor
under the terms of the Agency Agreement. The Lessor and all
Lessees contemplate that each applicable Lessee will utilize
this master lease to obtain an interest in one or more
individual Properties from time to time and to finance the
construction of Improvements thereon. This Lease permits the
Lessee which has executed a Lease Supplement with respect to
a particular Property (a) to pay the Termination Value to
purchase such Property and to thereby terminate this Lease in
accordance with the Operative Agreements as to such Property,
and (b) from time to time to cause Lessor in accordance with
the Operative Agreements to acquire, in fee simple or by
ground lease, an interest in additional Properties to be
leased to such Lessee which has executed a Lease Supplement
with respect to such additional Property. Accordingly, the
terms and conditions of this Lease shall apply to each
Property for which the applicable Lessee has executed a Lease
Supplement in accordance with the terms of the Operative
Agreements.
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 the applicable Lessee and (ii) fund the
acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment
and restoration of each Property by the applicable
Construction Agent; and
B. WHEREAS, the 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 each applicable
Lessee, and each applicable Lessee desires to lease from
Lessor, each Property for which such Lessee has executed a
Lease Supplement;
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 XIII
13.1 Definitions.
For purposes of this Lease, capitalized terms used
in this Lease and not otherwise defined herein shall have the
meanings assigned to them in Appendix A to that certain
Participation Agreement dated as of June 9, 2000 (as amended,
modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable
provisions thereof, the "Participation Agreement") among
Lessees, Performance Food Group Company, as Guarantor,
Lessor, the various banks and other lending institutions
which are parties thereto from time to time, as the Holders,
the various banks and other lending institutions which are
parties thereto from time to time, as the Lenders, and First
Union National Bank, as agent for the Lenders and respecting
the Security Documents, as the agent for the Lenders and the
Holders, to the extent of their interests. Unless otherwise
indicated, references in this Lease to articles, sections,
paragraphs, clauses, appendices, schedules and exhibits are
to the same contained in this Lease.
13.2 Interpretation.
The rules of usage set forth in Appendix A to the
Participation Agreement shall apply to this Lease.
13.3 No Joint or Several Liability.
Each Lessee shall be liable for its obligations as
Lessee under this Lease and the other Operative Agreements
solely with respect to such obligations arising in connection
with the Properties for which such Lessee has executed Lease
Supplements and no Lessee shall be jointly or severally
liable for the obligations of the other Lessees; provided,
notwithstanding the foregoing, the Security Documents shall
cross-collateralize the obligations of the Lessees.
ARTICLE XIV
14.1 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 each
applicable Lessee and such Lessee hereby leases from Lessor,
each Property with respect to which such Lessee has executed
a Lease Supplement.
14.2 Lease Term.
The term of this Lease with respect to each
Property (the "Term") shall begin upon the Property Closing
Date for such Property (in each case the "Commencement Date")
and shall end on the fifth annual anniversary of the Initial
Closing Date, unless the Term is earlier terminated in
accordance with the provisions of this Lease.
Notwithstanding the foregoing, no Lessee shall be obligated
to pay Basic Rent until the Rent Commencement Date with
respect to such Property.
14.3 Title.
Each Property is leased to the Lessee that has
executed a Lease Supplement with respect to such Property
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. No Lessee shall in any event have any recourse
against Lessor for any defect in Lessor's title to any
Property or any interest of such Lessee therein other than
for Lessor Liens.
14.4 Lease Supplements.
On or prior to each Commencement Date, each applicable
Lessee and Lessor shall each execute and deliver a Lease
Supplement for the Property to be leased effective as of such
Commencement Date in substantially the form of EXHIBIT A
hereto.
ARTICLE XV
15.1 Rent.
(a) Each applicable Lessee shall pay Basic Rent in
arrears on each Payment Date, and on any date on which
this Lease shall terminate with respect to each Property
with respect to which such Lessee has executed a Lease
Supplement during the Term; provided, however, no Lessee
shall have any 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) The inability or failure of any Lessee to take
possession of all or any portion of any Property with
respect to which such Lessee has executed a Lease
Supplement when delivered by Lessor, whether or not
attributable to any act or omission of Lessor, the
Construction Agent, such Lessee or any other Person or
for any other reason whatsoever, shall not delay or
otherwise affect such Lessee's obligation to pay Rent
for such Property in accordance with the terms of this
Lease.
(d) Each applicable Lessee shall make all payments
of Rent allocable to such Lessee prior to 12:00 Noon,
Charlotte, North Carolina time, on the applicable date
for payment of such amount.
15.2 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.
15.3 Supplemental Rent.
Each applicable 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 such 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. Each
applicable Lessee shall pay to the appropriate Person, as
Supplemental Rent due and owing to such Person, among other
things, on demand, (a) any and all payment obligations
(except for amounts payable as Basic Rent) owing from time to
time under the Operative Agreements by any Person to the
Agent, any Lender, any Holder or any other Person, (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 and (c) amounts referenced as Supplemental Rent
obligations pursuant to Section 8.3 of the Participation
Agreement. It shall be an additional Supplemental Rent
obligation of each applicable 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 with respect to each Property subject to a Ground Lease
and for which such Lessee has executed a Lease Supplement and
without the necessity of any notice from Lessor with regard
thereto. The expiration or other termination of any Lessee's
obligations to pay Basic Rent hereunder shall not limit or
modify the obligations of such Lessee with respect to
Supplemental Rent. Unless expressly provided otherwise in
this Lease, in the event of any failure on the part of any
Lessee to pay and discharge any Supplemental Rent as and when
due, such 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.
15.4 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.
15.5 Rent Payment Provisions.
Each applicable 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 XVI
16.1 Taxes; Utility Charges.
Each applicable Lessee shall pay, or cause to be
paid, all Impositions with respect to each Property with
respect to which such Lessee has executed a Lease Supplement
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 with
respect to each Property with respect to which such Lessee
has executed a Lease Supplement and related real property
during the Term. Upon Lessor's request, each applicable
Lessee shall provide from time to time Lessor with evidence
of all such payments referenced in the foregoing sentence.
Each applicable Lessee shall be entitled to receive any
credit or refund with respect to any Imposition or utility
charge paid by such 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 any Lessee, net of the costs and
expenses incurred by Lessor in obtaining such credit or
refund, shall be promptly paid over to such Lessee. All
charges for Impositions or utilities imposed with respect to
any Property with respect to each Property with respect to
which a particular Lessee has executed a Lease Supplement for
a period during which this Lease expires or terminates shall
be adjusted and prorated on a daily basis between Lessor and
such Lessee, and each party shall pay or reimburse the other
for such party's pro rata share thereof.
ARTICLE XVII
17.1 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, each
applicable Lessee shall peaceably and quietly have, hold and
enjoy each Property with respect to each Property with
respect to which such Lessee has executed a Lease Supplement
for the applicable Term, free of any claim or other action by
Lessor or anyone rightfully claiming by, through or under
Lessor (other than such Lessee) with respect to any matters
arising from and after the applicable Commencement Date.
ARTICLE XVIII
18.1 Net Lease.
This Lease shall constitute a net lease, and the
obligations of each applicable Lessee hereunder are absolute
and unconditional. Each applicable Lessee shall pay all
operating expenses arising out of the use, operation and/or
occupancy of each Property with respect to which such Lessee
has executed a Lease Supplement. Any present or future law
to the contrary notwithstanding, this Lease shall not
terminate, nor shall any Lessee be entitled to any abatement,
suspension, deferment, reduction, setoff, counterclaim, or
defense with respect to the Rent, nor shall the obligations
of any 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 any 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, any
Lessee or all of them; (i) any action of any Governmental
Authority or any other Person; (j) any 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 any
Lessee shall have notice or knowledge of any of the
foregoing. The parties intend that the obligations of each
applicable 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 each Lessee acknowledges
and agrees that the provisions of this Section 6.1 have been
specifically reviewed and subject to negotiation.
18.2 No Termination or Abatement.
Each applicable 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. Each
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. Each
Lessee shall remain obligated under this Lease in accordance
with its terms and each 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, each Lessee shall be bound by all of the terms and
conditions contained in this Lease.
ARTICLE XIX
19.1 Ownership of the Properties.
(a) Lessor and each Lessee intend that (i) for
financial accounting purposes with respect to such
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 with respect to
which such Lessee has executed a Lease Supplement and
(C) such Lessee will be treated as the lessee of each
such Property, but (ii) for federal and all state and
local income tax purposes and bankruptcy purposes (A)
this Lease will be treated as a secured financing
arrangement and (B) such Lessee will be treated as the
owner of each Property with respect to which such Lessee
has executed a Lease Supplement and will be entitled to
all tax benefits ordinarily available to owners of
property similar to each such Property for such tax
purposes. 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, bankruptcy, regulatory, commercial or real
estate law or under any other set of rules. Each
applicable Lessee shall claim the cost recovery
deductions associated with each Property with respect to
which such Lessee has executed a Lease Supplement, and
Lessor shall not, to the extent not prohibited by Law,
take on its tax return a position inconsistent with such
Lessee's claim of such deductions.
(b) In accordance with Section 7.1(a), in order to
secure the obligations of all Lessees and Construction
Agents now existing or hereafter arising under any and
all Operative Agreements, each Lessee hereby conveys,
grants, assigns, transfers, hypothecates, mortgages and
sets over to Lessor, for the benefit of all Financing
Parties, a first priority security interest (but subject
to the security interest in the assets granted by the
Lessees in favor of the Agent in accordance with the
Security Agreement) in and lien on all right, title and
interest of such Lessee (now owned or hereafter
acquired) in and to all Properties, to the extent such
is personal property and irrevocably grants and conveys
a lien, deed of trust and mortgage on all right, title
and interest of such Lessee (now owned or hereafter
acquired) in and to all Properties to the extent such is
real property. Lessor and each Lessee further intend
and agree that, for the purpose of securing the
obligations of all Lessees and all Construction Agents
now existing or hereafter arising under the Operative
Agreements, (i) this Lease shall be a security agreement
and financing statement within the meaning of Article 9
of the Uniform Commercial Code respecting each of the
Properties and all proceeds (including without
limitation insurance proceeds thereof) to the extent
such is personal property and an irrevocable grant and
conveyance of a lien, deed of trust and mortgage on each
of the Properties and all proceeds (including without
limitation insurance proceeds thereof) to the extent
such is real property; (ii) the acquisition of title by
Lessor (or to the extent applicable, a leasehold
interest pursuant to a Ground Lease) in each Property
referenced in Article II constitutes a grant by each
Lessee to Lessor of a security interest, lien, deed of
trust and mortgage in all of such Lessee's right, title
and interest in and to each Property and all proceeds
(including without limitation insurance proceeds
thereof) of the conversion, voluntary or involuntary, of
the foregoing into cash, investments, securities or
other property, whether in the form of cash,
investments, securities or other property, and an
assignment of all rents, profits and income produced by
each Property; and (iii) notifications to Persons
holding such property, and acknowledgments, receipts or
confirmations from financial intermediaries, bankers or
agents (as applicable) of each Lessee shall be deemed to
have been given for the purpose of perfecting such lien,
security interest, mortgage lien and deed of trust under
applicable law. Each applicable Lessee shall promptly
take such actions as necessary (including without
limitation the filing of Uniform Commercial Code
Financing Statements, Uniform Commercial Code Fixture
Filings and memoranda (or short forms) of this Lease and
the various Lease Supplements) to ensure that the lien,
security interest, mortgage lien and deed of trust in
each Property with respect to which such Lessee has
executed a Lease Supplement and the other items
referenced above will be deemed to be a perfected lien,
security interest, mortgage lien and deed of trust of
first priority under applicable law and will be
maintained as such throughout the Term.
ARTICLE XX
20.1 Condition of the Properties.
EACH APPLICABLE LESSEE ACKNOWLEDGES AND AGREES THAT
IT IS LEASING EACH PROPERTY WITH RESPECT TO WHICH SUCH LESSEE
HAS EXECUTED A LEASE SUPPLEMENT "AS-IS WHERE-IS" WITHOUT
REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY
LESSOR (EXCEPT THAT LESSOR SHALL KEEP EACH SUCH PROPERTY FREE
AND CLEAR OF LESSOR LIENS) 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) (EXCEPT THAT LESSOR
SHALL KEEP EACH PROPERTY FREE AND CLEAR OF LESSOR LIENS) 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. EACH APPLICABLE LESSEE HAS OR PRIOR TO
THE COMMENCEMENT DATE WILL HAVE BEEN AFFORDED FULL
OPPORTUNITY TO INSPECT EACH PROPERTY WITH RESPECT TO WHICH
SUCH LESSEE HAS EXECUTED A LEASE SUPPLEMENT 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 SUCH
LESSEE, ON THE OTHER HAND, ARE TO BE BORNE BY SUCH LESSEE.
20.2 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 the applicable Lessee in
the ordinary course of its business. Each applicable
Lessee shall pay, or cause to be paid, all charges and
costs required in connection with the use of each
Property with respect to which such Lessee has executed
a Lease Supplement as contemplated by this Lease. No
Lessee shall commit or permit any waste of the
Properties or any part thereof.
(b) The address of the applicable Lessee stated on
the signature page in each applicable Lease Supplement
is the principal place of business and chief executive
office of such Lessee (as such terms are used in Section
9-103(3) of the Uniform Commercial Code of any
applicable jurisdiction), and such Lessee will provide
Lessor with prior written notice of any change of
location of its principal place of business or chief
executive office. Regarding a particular Property, each
Lease Supplement correctly identifies the initial
location of the related Equipment (if any) and
Improvements (if any) and contains an accurate legal
description for the related parcel of Land or a copy of
the Ground Lease (if any). The Equipment and
Improvements respecting each particular Property will be
located only at the location identified in the
applicable Lease Supplement.
(c) No Lessee will 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 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 Commencement Date for each Property,
Lessor and the applicable Lessee shall execute a Lease
Supplement in regard to such Property which shall
contain an Equipment Schedule that has a general
description of the Equipment which shall comprise the
Property, an Improvement Schedule that has a general
description of the Improvements which shall comprise the
Property and a legal description of the Land to be
leased hereunder (or in the case of any Property subject
to a Ground Lease to be subleased hereunder) as of such
date. Each Property subject to a Ground Lease shall be
deemed to be ground subleased from Lessor to such Lessee
as of the 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. Such 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, ground subleasehold interest, all
additional Equipment and all additional Improvements
which are financed under the Operative Agreements after
the Commencement Date and the remainder of such Property
shall be deemed to have been accepted by such 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 with respect to which a particular Lessee
has executed a Lease Supplement, such 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.
20.3 Integrated Properties.
On the Rent Commencement Date for each Property
with respect to which a particular Lessee has executed a
Lease Supplement, such Lessee shall, at its sole cost and
expense, cause such Property and the applicable property
subject to a Ground Lease to 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 XXI
21.1 Compliance With Legal Requirements, Insurance
Requirements and Manufacturer's Specifications and
Standards.
Subject to the terms of Article XIII relating to
permitted contests, each applicable Lessee, at its sole cost
and expense, shall (a) comply with all applicable Legal
Requirements (including without limitation all Environmental
Laws) and all Insurance Requirements relating to each
Property with respect to which such Lessee has executed a
Lease Supplement, (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 each
Property with respect to which such Lessee has executed a
Lease Supplement, and (c) comply with all manufacturer's
specifications and standards, including without limitation
the acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment
and restoration of each Property with respect to which such
Lessee has executed a Lease Supplement, whether or not
compliance therewith shall require structural or
extraordinary changes in any Property or interfere with the
use and enjoyment of any Property unless the failure to
procure, maintain and comply with such items identified in
subparagraphs (a), (b) and (c), individually or in the
aggregate, shall not and could not reasonably be expected to
have a Material Adverse Effect. Lessor agrees to take such
actions as may be reasonably requested by any Lessee in
connection with the compliance by such Lessee of its
obligations under this Section 9.1.
ARTICLE XXII
22.1 Maintenance and Repair; Return.
(a) Each Lessee, at its sole cost and expense,
shall maintain each Property with respect to which such
Lessee has executed a Lease Supplement 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 each applicable Property, such that
each 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) No Lessee shall use or locate any component of
any Property outside of the Approved State therefor. No
Lessee shall 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, the applicable
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 Lessor 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 any Lessee.
(e) If, at any time, the aggregate appraised value
of Properties then subject to this Lease for which the
Agent has received an as-built Appraisal pursuant to the
terms of Section 5.3 of the Participation Agreement is
less than twenty percent (20%) of the aggregate Property
Cost at such time (the "Base Amount"), then Lessees
shall cause an additional as-built Appraisal or
additional 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, Lessees shall cause to be
delivered to Lessor (at each applicable Lessee's sole
expense with respect to each Property for which such
Lessee has executed a Lease Supplement) 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 each 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) Each applicable Lessee shall, upon the
expiration or earlier termination of this Lease with
respect to a Property with respect to which such Lessee
has executed a Lease Supplement, if such Lessee shall
not have exercised its Purchase Option with respect to
such Property and purchased such Property, surrender
such Property (i) to Lessor pursuant to the exercise of
the applicable remedies upon the occurrence of a Lease
Event of Default or (ii) pursuant to the second
paragraph of Section 22.1(a) hereof, to Lessor or the
third party purchaser, as the case may be, subject to
such Lessee's obligations under this Lease (including
without limitation the obligations of such Lessee at the
time of such surrender under Sections 9.1, 10.1(a)
through (f), 10.2, 11.1, 12.1, 22.1 and 23.1).
22.2 Environmental Inspection.
If any applicable Lessee has not given notice of
exercise of its Purchase Option on the Expiration Date
pursuant to Section 20.1 or for whatever reason such Lessee
does not purchase a Property with respect to which such
Lessee has executed a Lease Supplement in accordance with the
terms of this Lease, then not more than one hundred eighty
(180) days nor less than sixty (60) days prior to the
Expiration Date, such Lessee at its expense shall cause to be
delivered to Lessor a Phase I environmental site assessment
with regard to such Property recently prepared (no more than
thirty (30) days prior to the date of delivery) by an
independent recognized professional reasonably acceptable to
Lessor, and in form, scope and content reasonably
satisfactory to Lessor.
ARTICLE XXIII
23.1 Modifications.
(a) Each applicable 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
with respect to which such Lessee has executed a Lease
Supplement or any part thereof and substitutions and
replacements therefor (collectively, "Modifications"),
and each applicable 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), each applicable 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, each applicable 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 the applicable
Lessee shall finance the proposed replacement
Modification outside of this lease facility; provided,
further, no Lessee shall make any Modification (unless
required by any Legal Requirement) to the extent any
such Modification, individually or in the aggregate,
shall or could reasonably be expected to have a Material
Adverse Effect. 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. No Lessee shall 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. Each applicable
Lessee, at its own cost and expense, will pay for the
repairs of any damage to any Property with respect to
which such Lessee has executed a Lease Supplement caused
by the removal or attempted removal of any Modification.
(b) The construction process provided for in the
Agency Agreement is acknowledged by Lessor to be
consistent with and in compliance with the terms and
provisions of this Article XI.
ARTICLE XXIV
24.1 Warranty of Title.
(a) Each applicable Lessee hereby acknowledges and
shall cause title in each Property with respect to which
such Lessee has executed a Lease Supplement (including
without limitation all Equipment, all Improvements, all
replacement components to each Property and all
Modifications) immediately and without further action to
vest in and become the property of Lessor and to be
subject to the terms of this Lease (provided, respecting
each Property 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 Property Closing Date therefor or such date of
incorporation into any Property. Each applicable Lessee
agrees that, subject to the terms of Article XIII
relating to permitted contests, such 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 with respect to
which such Lessee has executed a Lease Supplement, 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,
any Lender or any Holder pursuant to any Operative
Agreement, other than Permitted Liens and Lessor Liens.
Each applicable Lessee shall promptly notify Lessor in
the event such Lessee receives actual knowledge that a
Lien other than a Permitted Lien or Lessor Lien has
occurred with respect to a Property with respect to
which such Lessee has executed a Lease Supplement, the
Rent or any other such amounts, and each applicable
Lessee represents and warrants to, and covenants with,
Lessor that the Liens in favor of Lessor and/or the
Agent 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 and
Lessor Liens. At all times subsequent to the
Commencement Date respecting a Property, each applicable
Lessee shall (i) cause a valid, perfected, first
priority Lien on each Property with respect to which
such Lessee has executed a Lease Supplement to be in
place in favor of the Agent (for the benefit of the
Lenders and the Holders) and (ii) file, or cause to be
filed, all necessary documents under the applicable real
property law and Article 9 of the Uniform Commercial
Code to perfect such title and 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 ANY 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 XXV
25.1 Permitted Contests Other Than in Respect of
Indemnities.
Except to the extent otherwise provided for in
Section 11 of the Participation Agreement, each applicable
Lessee, on its own or on Lessor's behalf but at such 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,
Imposition or utility charge 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, each Property with respect to
which such Lessee has executed a Lease Supplement, Lessor,
each Holder, the Agent and each Lender; (b) there shall not
be imposed a Lien (other than Permitted Liens and Lessor
Liens) on any such Property and no part of any such 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 such 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 such
Lessee's sole cost and expense, shall execute and deliver to
such Lessee such authorizations and other documents as may
reasonably be required in connection with any such contest
and, if reasonably requested by such Lessee, shall join as a
party therein at such Lessee's sole cost and expense.
25.2 Impositions, Utility Charges, Other Matters;
Compliance with Legal Requirements.
Except with respect to Impositions, Legal
Requirements, utility charges and such other matters
referenced in Section 13.1 which are the subject of ongoing
proceedings contesting the same in a manner consistent with
the requirements of Section 13.1, each applicable Lessee
shall cause (a) all Impositions, utility charges and such
other matters to be timely paid, settled or compromised, as
appropriate, with respect to each Property with respect to
which such Lessee has executed a Lease Supplement and (b)
each such Property to comply with all applicable Legal
Requirements, except to the extent failure to so comply would
not and could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE XXVI
26.1 Public Liability and Workers' Compensation
Insurance.
During the Term for each Property with respect to
which such Lessee has executed a Lease Supplement, such
Lessee shall procure and carry, at such 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 with respect to such
Property and such other public liability coverages as are
then customarily carried by similarly situated companies
conducting business similar to that conducted by such Lessee.
Such insurance shall be on terms and in amounts that are no
less favorable than insurance maintained by such 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 such 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 such 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 each Property with respect to
which such Lessee has executed a Lease Supplement, such
Lessee shall comply with applicable workers' compensation
laws and protect Lessor, each Holder, the Agent and each
Lender against any liability under such laws.
26.2 Permanent Hazard and Other Insurance.
(a) During the Term for each Property with respect
to which a particular Lessee has executed a Lease
Supplement, such 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 Property Cost
of such Property from time to time and on terms that (i)
are no less favorable than insurance covering other
similar properties owned by such Lessee and (ii) are
then carried by similarly situated companies conducting
business similar to that conducted by such Lessee. The
policies shall name such Lessee as the insured and shall
be endorsed to name Lessor 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 the
applicable Lessee that has executed a Lease Supplement
with respect to such Property shall comply with the
National Flood Insurance Program as set forth in the
Flood Disaster Protection Act of 1973. In addition,
such 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, each applicable
Lessee shall, in the operation and use of each Property
with respect to which such Lessee has executed a Lease
Supplement, maintain workers' compensation insurance
consistent with that carried by similarly situated
companies conducting business similar to that conducted
by such Lessee and containing minimum liability limits
of no less than $100,000. In the operation of each
Property with respect to which a particular Lessee has
executed a Lease Supplement, such Lessee shall comply
with workers' compensation laws applicable to such
Lessee, and protect Lessor, each Holder, the Agent and
each Lender against any liability under such laws.
26.3 Coverage.
(a) As of the date of this Lease and annually
thereafter during the Term, each Lessee shall furnish
the Agent (on behalf of Lessor and the other
beneficiaries of such insurance coverage) with
certificates prepared by the insurers or insurance
broker of each such 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 each
Lessee with respect to such Properties for which such
Lessee has executed a Lease Supplement and provided by
nationally recognized, financially sound insurance
companies having an A+ or better rating by A.M. Best's
Key Rating Guide. Each applicable Lessee shall cause
such certificates to include a provision for thirty (30)
days' advance written notice by the insurer to the Agent
(on behalf of Lessor and the other beneficiaries of such
insurance coverage) in the event of cancellation or
material alteration of such insurance. If an Event of
Default has occurred and is continuing and the Agent (on
behalf of Lessor and the other beneficiaries of such
insurance coverage) so requests, each applicable Lessee
shall deliver to the Agent (on behalf of Lessor and the
other beneficiaries of such insurance coverage) copies
of all insurance policies required by Sections 14.1 and
14.2.
(b) Each applicable 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 such 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 such Lessee. Each
applicable 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 any 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) each 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 any Lessee's policy and (ii) each
such insurance policy will not cause any Lessee's
insurance required under this Article XIV to be subject
to a coinsurance exception of any kind.
(d) Each Lessee shall pay as they become due all
premiums for the insurance required by Section 14.1 and
Section 14.2 regarding each Property with respect to
which such Lessee has executed a Lease Supplement, 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.
ARTICLE XXVII
27.1 Casualty and Condemnation.
(a) Subject to the provisions of the Agency
Agreement and this Article XV and Article XVI (in the
event any applicable 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, such Lessee shall be
entitled to receive (and Lessor hereby irrevocably
assigns to such Lessee all of Lessor's right, title and
interest in) any condemnation proceeds, award,
compensation or insurance proceeds under Sections
14.2(a) or 14.2(b) hereof to which such Lessee or Lessor
may become entitled by reason of their respective
interests in a Property with respect to which such
Lessee and the Lessor have executed a Lease Supplement
(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 such Lessee, shall be held in trust
for Lessor, and shall be paid over by such 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 all
Lessees' obligations hereunder and under the other
Operative Agreements and when all such obligations of
all Lessees with respect to such matters (and all other
obligations of all Lessees which should have been
satisfied pursuant to the Operative Agreements as of
such date) have been satisfied, all amounts so held by
Lessor shall be paid over to the applicable Lessee.
(b) Each applicable 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
such Lessee's reasonable request, and at such Lessee's
sole cost and expense, Lessor and the Agent shall
participate in any such proceeding, action, negotiation,
prosecution or adjustment. Lessor and each Lessee agree
that this Lease shall control the rights of Lessor and
each Lessee in and to any such award, compensation or
insurance payment.
(c) If any 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, such Lessee shall
give notice thereof to Lessor promptly after such
Lessee's receipt of such notice. In the event such a
Casualty or Condemnation occurs (regardless of whether
the applicable Lessee gives notice thereof), then such
Lessee shall be deemed to have delivered a Termination
Notice to Lessor 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 with respect to
which any particular Lessee has executed a Lease
Supplement in accordance with Section 16.1 if such
Lessee, within thirty (30) days after such occurrence,
delivers to Lessor 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, the Lessee that has executed a Lease
Supplement with respect thereto shall, at its sole cost
and expense (subject to reimbursement in accordance with
Section 15.1(a)) 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 the same or a
greater 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 any 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 the Lessee which has
executed a Lease Supplement with respect thereto
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 same or a
greater 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 such 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, such 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 such Lessee. If a Default or an Event of
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 all Lessees' 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 applicable Lessee.
27.2 Environmental Matters.
Promptly upon any applicable Lessee's actual
knowledge of the presence of Hazardous Substances in any
portion of any Property with respect to which such Lessee has
executed a Lease Supplement in concentrations and conditions
that constitute an Environmental Violation and which, in the
reasonable opinion of such Lessee, the cost to undertake any
legally required response, clean up, remedial or other action
will or might result in a cost to such Lessee of more than
$15,000, such Lessee shall notify Lessor in writing of such
condition. In the event of any Environmental Violation
(regardless of whether notice thereof must be given), such
Lessee shall, not later than thirty (30) days after such
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 such Lessee's sole cost and
expense, promptly and diligently undertake and diligently
complete any response, clean up, remedial or other action
(including without limitation the pursuit by such 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
such 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 such Lessee,
cause to be prepared by a reputable environmental consultant
acceptable to Lessor a report describing the Environmental
Violation and the actions taken by such 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 and not
more than one hundred eighty (180) days prior to any time
that such 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, such 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 in
its reasonable discretion and in form, scope and content
satisfactory to Lessor in its reasonable discretion.
Notwithstanding any other provision of any Operative
Agreement, if such Lessee fails to comply with the foregoing
obligation regarding the Phase I environmental site
assessment, such 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 such
Lessee or any Affiliate of such Lessee.
27.3 Notice of Environmental Matters.
Promptly, but in any event within five (5) Business
Days from the date any applicable Lessee has actual knowledge
thereof, such 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 with respect to which such
Lessee has executed a Lease Supplement. All such notices
shall describe in reasonable detail the nature of the claim,
action or proceeding and such Lessee's proposed response
thereto. In addition, such 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 with respect to which such Lessee has
executed a Lease Supplement. The applicable Lessee shall
also promptly provide such detailed reports of any such
material environmental claims as may reasonably be requested
by Lessor.
ARTICLE XXVIII
28.1 Termination Upon Certain Events.
If any Lessee has delivered, or is deemed to have
delivered, written notice of a termination of this Lease with
respect to any Property with respect to which such Lessee has
executed a Lease Supplement to Lessor in the form described
in Section 16.2(a) (a "Termination Notice") pursuant to the
provisions of this Lease, then following the applicable
Casualty, Condemnation or Environmental Violation, this Lease
shall terminate with respect to the affected Property on the
applicable Termination Date.
28.2 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 the applicable Lessee to pay
the Termination Value for the applicable Property and
purchase such Property on such Termination Date.
(b) On each Termination Date, the applicable
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
such Lessee (or such Lessee's designee), all in
accordance with Section 20.2.
ARTICLE XXIX
29.1 Lease Events of Default.
If any one (1) or more of the following events
(each a "Lease Event of Default") shall occur:
(a) Any Lessee shall fail to make payment of (i)
any Basic Rent regarding any Property with respect to
which such Lessee has executed a Lease Supplement
(except as set forth in clause (ii)) within three (3)
days after the same has become due and payable or (ii)
any Termination Value payable by such Lessee, on the
date any such payment is due and payable, or any payment
of Basic Rent or Supplemental Rent payable by such
Lessee due on the due date of any such payment of
Termination Value, or any amount payable by such Lessee
due on the Expiration Date;
(b) Any Lessee shall fail to make payment of any
Supplemental Rent payable by such Lessee (other than
Supplemental Rent referred to in Section 17.1(a)(ii)) or
any other Credit Party shall fail to make any payment
payable by such Credit Party of any amount under any
Operative Agreement which has become due and payable
within three (3) days after receipt of notice that such
payment is due;
(c) Any 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) Any Lessee shall fail to observe or
perform any term, covenant, obligation or condition of
such Lessee under this Lease (including without
limitation the Incorporated Covenants) or any other
Operative Agreement to which such Lessee is a party
other than those set forth in Sections 17.1(a), (b) or
(c) hereof, or any other Credit Party shall fail to
observe or perform any term, covenant, obligation or
condition of such Credit Party under any Operative
Agreement other than those set forth in Section 17.1(b)
hereof, and such failure shall continue for thirty (30)
days (or with respect to the Incorporated Covenants, the
grace period, if any, applicable thereto) after written
notice thereof has been given to the Guarantor (on
behalf of such Lessee or other Credit Party) by the
Agent, or (ii) any representation or warranty made by
any Lessee or any other Credit Party 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) The Guarantor, any Lessee or any of their
respective 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 other 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 any Credit
Party, or the suspension of the business of any Credit
Party, or the filing by any Credit Party 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 any Credit Party indicating its consent to,
approval of or acquiescence in, any such petition or
proceeding; the application by any Credit Party for, or
the appointment by consent or acquiescence of any Credit
Party of a receiver, a trustee or a custodian of any
Credit Party for all or a substantial part of its
property; the making by any Credit Party of any
assignment for the benefit of creditors; the admission
by any Credit Party in writing of its inability to pay
its debts as they mature or any Credit Party is
generally not paying its debts and other financial
obligations as they become due and payable; or any
Credit Party taking any corporate action to authorize
any of the foregoing;
(h) The filing of an involuntary petition against
any Credit Party 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 any Credit Party
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 any Credit Party, and the continuance of any
of such events for ninety (90) consecutive days
undismissed or undischarged;
(i) The adjudication of any Credit Party as
bankrupt or insolvent or the entry of an order granting
the relief requested in a case or proceeding described
in Section 17.1(h) (including, but not limited to, an
order for relief under the Bankruptcy Code);
(j) The entering of any order in any proceedings
against any Credit Party or any Subsidiary decreeing the
dissolution, divestiture or split-up of any Credit Party
or any Subsidiary of any Credit Party, 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 any Credit Party 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
the Guarantor, any Lessee or any of their respective
Subsidiaries or any of their assets 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) the Guarantor, such Lessee or
such 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) Any Credit Party or any member of the
Controlled Group shall fail to pay when due an amount or
amounts 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 any Credit
Party 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 any Credit
Party 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
Guarantor; 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 Guarantor shall
cease for any reason to constitute a majority of the
board of directors of Guarantor, provided, that the
relationships among the respective shareholders of
Guarantor 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);
(p) Any Operative Agreement shall cease to be in
full force and effect; or
(q) Except as to any Credit Party which is
released in connection with the Operative Agreements,
the guaranty given by the Guarantor under the
Participation Agreement or any material provision
thereof shall cease to be in full force and effect, or
the Guarantor or any Person acting by or on behalf of
the Guarantor shall deny or disaffirm the Guarantor's
obligations under such guaranty, or the Guarantor shall
default in the due performance or observance of any
term, covenant or agreement on its part to be performed
or observed pursuant to any guaranty;
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 the Guarantor
(on behalf of each Lessee) five (5) days notice of such
termination (provided, notwithstanding the foregoing, this
Lease shall be deemed to be automatically terminated without
the giving of notice upon the occurrence of a Lease Event of
Default under Sections 17.1(g), (h) or (i)), and this Lease
shall terminate, and all rights of each Lessee under this
Lease shall cease. Each Lessee shall, to the fullest extent
permitted by law, pay as Supplemental Rent all costs and
expenses incurred by or on behalf of Lessor or any other
Financing Party, including without limitation reasonable fees
and expenses of counsel, as a result of any Lease Event of
Default hereunder.
A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A POWER
OF SALE MAY ALLOW LESSOR TO TAKE THE PROPERTIES AND SELL THE
PROPERTIES WITHOUT GOING TO COURT IN A FORECLOSURE ACTION
UPON THE OCCURRENCE OF A LEASE EVENT OF DEFAULT.
29.2 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, each Lessee shall, upon
thirty (30) days written notice, surrender to Lessor
possession of each Property with respect to which such Lessee
has executed a Lease Supplement. Lessor may enter upon and
repossess the Properties by such means as are available at
law or in equity, and may remove each applicable Lessee and
all other Persons and any and all personal property and each
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, each Lessee shall return each Property with
respect to which such Lessee has executed a Lease Supplement
promptly to Lessor, in the manner and condition required by,
and otherwise in accordance with the provisions of, Section
22.1(c) hereof.
29.3 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 each applicable 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 any Lessee for any failure to relet any Property or
for any failure to collect any rent due upon such reletting.
29.4 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 any 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, each Lessee shall forthwith pay to Lessor all
Rent and other sums due and payable hereunder by such Lessee
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, each applicable 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 by such Lessee under this
Lease or would have been payable by such 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 with respect to which such Lessee
has executed a Lease Supplement or any portion thereof;
provided, that such 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.
Each 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.
29.5 Power of Sale.
Without limiting any other remedies set forth in
this Lease, Lessor and each Lessee agree that each Lessee has
granted, pursuant to Section 7.1(b) hereof and each Lease
Supplement, a Lien against each Property with respect to
which such Lessee has executed a Lease Supplement 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.
29.6 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 each Lessee as to each Property for which such
Lessee has executed a Lease Supplement and at Lessor's
election, and each Lessee shall pay to Lessor, as and for
final liquidated damages, but exclusive of the indemnities
payable under Section 11 of the Participation Agreement
(which, if requested, shall be paid concurrently), 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
with respect to each Property for which such Lessee has
executed a Lease Supplement. Upon payment of the amount
specified pursuant to the first sentence of this Section
17.6, each applicable Lessee shall be entitled to receive
from Lessor, either at such Lessee's request or upon Lessor's
election, in either case at such Lessee's cost, an assignment
of Lessor's entire right, title and interest in and to the
applicable 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 applicable Properties shall be
conveyed to such 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, no Lessee shall be entitled to
receive an assignment of Lessor's interest in any Property,
Improvements, Fixtures, Modifications, Equipment or the
components thereof unless such Lessee shall have paid in full
the Termination Value with respect to each Property for which
such Lessee has executed a Lease Supplement. Each 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.
29.7 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, each 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
with respect to which such Lessee has executed a Lease
Supplement, as such testing or work is deemed appropriate in
the reasonable judgment of Lessor, and shall indemnify and
hold harmless Lessor and each other Indemnified Person
therefrom. Each 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 any
Lessee under any Operative Agreement regarding
indemnification obligations, environmental testing,
remediation and/or work.
29.8 Waiver of Certain Rights.
If this Lease shall be terminated pursuant to
Section 17.1, each 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.
29.9 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, each Lessee shall upon
Lessor's demand immediately assign, transfer and set over to
Lessor all of such Lessee's right, title and interest in and
to each agreement executed by such Lessee in connection with
the acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment
and restoration of each Property with respect to which such
Lessee has executed a Lease Supplement (including without
limitation all right, title and interest of such 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 each Property with respect to which such
Lessee has executed a Lease Supplement.
29.10 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 XXX
30.1 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 each applicable
Lessee, including without limitation the failure by any
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 any
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
the applicable Lessee to Lessor on demand.
ARTICLE XXXI
31.1 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
any 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 any Lessee of the amounts set
forth in Sections 16.2(b) or 20.2, as applicable, Lessor
shall execute and deliver to such Lessee (or to such Lessee's
designee) at such 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 such Lessee "AS-IS, "WHERE-
IS" and in then present physical condition.
31.2 No Purchase or Termination With Respect to Less
than All of a Property.
No Lessee shall 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 interest pursuant to a Ground Lease
but shall be required to exercise its Purchase Option or the
Sale Option with respect to an entire Property.
ARTICLE XXXII
32.1 Purchase Option or Sale Option-General Provisions.
Not less than ninety (90) days and no more than one
hundred eighty (180) days prior to the Expiration Date or,
respecting the Purchase Option only, not less than sixty (60)
days and no more than one hundred eighty (180) days prior to
any Payment Date (such Expiration Date or, respecting the
Purchase Option only, any such Payment Date being hereinafter
referred to as the "Election Date"), the Guarantor, on behalf
of all Lessees, may give Lessor irrevocable written notice
(the "Election Notice") that each Lessee is electing to
exercise either (a) the option to purchase all, but not less
than all, the Properties with respect to which such Lessee
has executed a Lease Supplement on the applicable Election
Date (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 with respect to which such Lessee has executed a
Lease Supplement to a Person other than such Lessee or any
Affiliate of such Lessee and cause a sale of such Properties
to occur on the applicable Election Date pursuant to the
terms of Section 22.1 (the "Sale Option"). If the Guarantor,
on behalf of all Lessees, does not give an Election Notice
indicating the Purchase Option or the Sale Option at least
ninety (90) days and not more than one hundred eighty (180)
days prior to the Expiration Date, then each Lessee shall be
deemed to have elected for the Purchase Option to apply on
the Expiration Date. If the Guarantor, on behalf of all
Lessees, 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 all, but not less than all, the
Properties to be sold in accordance with the terms of Section
22.1 on the applicable Election Date, then in either case
each applicable 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, but not less than
all, the Properties with respect to which such Lessee has
executed a Lease Supplement (which the parties do not intend
to be a "bargain" purchase price) and, upon receipt of such
amounts and satisfaction of such obligations, Lessor shall
transfer to the applicable Lessee all of Lessor's right,
title and interest in and to all, but not less than all, such
Properties in accordance with Section 20.2.
32.2 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 each
applicable Property) and provided, that the Election Notice
has been appropriately given specifying the Purchase Option,
each applicable Lessee shall purchase all the Properties with
respect to which such Lessee has executed a Lease Supplement
on the applicable Election 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
Guarantor's exercise of the Purchase Option on behalf of any
Lessee, upon the date on which this Lease is to terminate
with respect to a Property or all of the Properties, and upon
tender by the applicable 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
such Lessee, at such Lessee's cost and expense, each of the
following: (a) a termination or assignment (as requested by
such Lessee) of each applicable Ground Lease and special or
limited warranty Deeds conveying each Property with respect
to which such Lessee has executed a Lease Supplement (to the
extent it is real property not subject to a Ground Lease) to
such 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 such Property (to the extent it is
personal property) to such 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. All of the foregoing
documentation must be in form and substance reasonably
satisfactory to Lessor. Each applicable Property shall be
conveyed to the applicable 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 applicable
Election Date which could materially and adversely impact the
Fair Market Sales Value of such Property (with materiality
determined in Lessor's discretion), then the Lessee that has
executed a Lease Supplement respecting such Property shall be
obligated to purchase each such Property pursuant to Section
20.2.
On the applicable Election Date on which the
Guarantor, on behalf of any Lessee, has elected to exercise
the Purchase Option, the applicable 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 such Lessee
to exercise its Purchase Option and all Rent and all other
amounts allocable to such Lessee then due and payable or
accrued under this Lease and/or any other Operative
Agreement.
32.3 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, each Lessee shall undertake
to cause a sale of each Property with respect to which
such Lessee has executed a Lease Supplement on the
applicable Election Date (all as specified in the
Election Notice), in accordance with the provisions of
Section 22.1 hereof. Such Election Date on which a sale
is required may be hereafter referred to as the "Sale
Date".
(b) In the event the Guarantor, on behalf of each
Lessee, exercises the Sale Option then, as soon as
practicable and in all events not less than sixty (60)
days and not more than one hundred eighty (180) prior to
the Sale Date, each Lessee at its expense shall cause to
be delivered to Lessor a Phase I environmental site
assessment for each Property with respect to which such
Lessee has executed a Lease Supplement recently prepared
(no more than thirty (30) days old prior to the Sale
Date) by an independent recognized professional
reasonably acceptable to Lessor and in form, scope and
content reasonably satisfactory to Lessor. In the event
that Lessor shall not have received such environmental
site assessment by the date sixty (60) days prior to the
Sale 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 by Lessor in its reasonable discretion), then
each Lessee on the Sale Date shall pay to Lessor an
amount equal to the Termination Value for each Property
with respect to which such Lessee has executed a Lease
Supplement and any and all other amounts due and owing
hereunder. Upon receipt of such payment and all other
amounts allocable to such Lessee due under the Operative
Agreements, Lessor shall transfer to each Lessee all of
Lessor's right, title and interest in and to each
Property with respect to which such Lessee has executed
a Lease Supplement in accordance with Section 19.1.
ARTICLE XXXIII
33.1 [Intentionally Omitted].
ARTICLE XXXIV
34.1 Sale Procedure.
(a) During the Marketing Period, each Lessee, on
behalf of Lessor, shall obtain bids for the cash
purchase of all each Property with respect to which such
Lessee has executed a Lease Supplement in connection
with a sale to one (1) or more third party purchasers to
be consummated on 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 any Lessee or any Affiliate of any
Lessee. On the Sale Date, each 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 each Property with respect
to which such Lessee has executed a Lease Supplement,
all Rent and all other amounts allocable to such Lessee
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 the Guarantor, on behalf of
each Lessee, written notice to that effect; provided,
however, that notwithstanding the foregoing, Lessor may
not reject the bids submitted by any Lessee if such
bids, in the aggregate, are greater than or equal to the
sum of the Limited Recourse Amount for all 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 all the
Properties on the Sale Date is less than the sum of the
Limited Recourse Amount for all 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 one or more of the Properties by
giving the Guarantor, on behalf of each Lessee, prior
written notice of Lessor's election to retain the same,
and promptly upon receipt of such notice, each
applicable Lessee shall surrender, or cause to be
surrendered, each of the Properties specified in such
notice in accordance with the terms and conditions of
Section 10.1. Upon acceptance of any bid, Lessor
agrees, at each applicable 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 one or
more of the Properties pursuant to the provisions of the
preceding paragraph, each Lessee shall arrange for
Lessor to sell each Property with respect to which such
Lessee has executed a Lease Supplement 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 the applicable 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
the cost and expense of Lessor or the Trust Company, in
its individual capacity, such Lessor Lien by appropriate
proceedings in which event the applicable Sale Date, all
without penalty or cost to the Lessee that has executed
a Lease Supplement with respect to such Property or
Properties, 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 such
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 such 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 such 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. All of the
foregoing documentation must be in form and substance
reasonably satisfactory to Lessor. Each Lessee shall
surrender each Property with respect to which such
Lessee has executed a Lease Supplement 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 such Lessee and such
purchaser. No Lessee shall 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) each Lessee shall be obligated
to pay Lessor on the Sale Date an amount equal to the
aggregate Termination Value for each Property with
respect to which such Lessee has executed a Lease
Supplement less any sales proceeds received, and (y)
Lessor shall transfer each applicable Property to the
Lessee with respect thereto 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 all the Properties is less than
the sum of the aggregate Property Cost for all the
Properties (hereinafter such difference shall be
referred to as the "Deficiency Balance"), then each
applicable Lessee hereby unconditionally promises to pay
to Lessor on the Sale Date all Rent and all other
amounts allocable to such Lessee then due and owing
pursuant to the Operative Agreements and the lesser of
(i) the Deficiency Balance for all the Properties with
respect to which such Lessee has executed a Lease
Supplement, or (ii) the Maximum Residual Guarantee
Amount for all the Properties with respect to which such
Lessee has executed a Lease Supplement. On a Sale Date
if (x) Lessor receives the aggregate Termination Value
for all the Properties from one (1) or more third party
purchasers, (y) Lessor and such other parties receive
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 the Properties on such date
exceeds the sum of the aggregate Property Cost for all
the Properties, then each applicable Lessee may retain
its portion of such excess. If one or more of the
Properties are retained by Lessor pursuant to an
affirmative election made by Lessor pursuant to the
provisions of Section 22.1(a), then each applicable
Lessee hereby unconditionally promises to pay to Lessor
on the Sale Date all Rent and all other amounts
allocable to such Lessee then due and owing pursuant to
the Operative Agreements and an amount equal to the
Maximum Residual Guarantee Amount for the Properties of
such Lessee so retained. 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 all 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 each applicable 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 of such
Lessee for the purpose it is being used by such 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) and (ii) 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. Each applicable 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.
34.2 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 each applicable 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 Loans or Holder Advances or any amount is
owing to the Financing Parties under any Operative
Agreement, to the Agent to be applied pursuant to
intercreditor provisions among Lessor, the Lenders and
the Holders contained in the Operative Agreements; and
(c) THIRD, to each applicable Lessee.
34.3 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, each applicable 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.
34.4 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 each applicable Lessee shall
use the following procedure (the "Appraisal Procedure").
Lessor and each applicable 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 such 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
such 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 such 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 such Lessee. The fees and
expenses of the appraiser appointed by such Lessee shall be
paid by such 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 11 of the
Participation Agreement); and the fees and expenses of the
third appraiser shall be divided equally between such Lessee
and Lessor.
34.5 Certain Obligations Continue.
During the Marketing Period, the obligation of each
Lessee to pay Rent with respect to the Properties of such
Lessee (including without limitation the installment of Basic
Rent due on the Sale 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 any 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 XXXV
35.1 Holding Over.
If any 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 such Lessee), such possession shall
be as a tenancy at sufferance during which time such Lessee
shall continue to pay Supplemental Rent that would be payable
by such Lessee hereunder were the Lease then in full force
and effect with respect to such Property and such Lessee
shall continue to pay Basic Rent allocable to such Lessee at
the lesser of the highest lawful rate and one hundred ten
percent (110%) of the last payment of Basic Rent due with
respect to such Property prior to such expiration or earlier
termination of this Lease. Such Basic Rent shall be payable
from time to time upon demand by Lessor and such additional
amount of Basic Rent shall be applied by Lessor ratably to
the Lenders and the Holders based on their relative amounts
of the then outstanding aggregate Property Cost for all
Properties. During any period of tenancy at sufferance, such
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 any Lessee after the expiration or earlier
termination of this Lease as to any Property (unless such
Property is conveyed to such 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 XXXVI
36.1 Risk of Loss.
During the Term, unless any applicable 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 such Lessee, and Lessor shall in no event be
answerable or accountable therefor.
ARTICLE XXXVII
37.1 Assignment.
(a) No Lessee may assign this Lease or any of its
rights or obligations hereunder or with respect to any
Property with respect to which such Lessee has executed
a Lease Supplement 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 any Lessee (referenced in
this Section 25.1 or otherwise) or other relinquishment
of possession to any Property with respect to which such
Lessee has executed a Lease Supplement shall in any way
discharge or diminish any of the obligations of such
Lessee to Lessor hereunder and such Lessee shall remain
directly and primarily liable under the Operative
Agreements as to any rights or obligations assigned by
such Lessee or regarding any such Property in which
rights or obligations have been assigned or otherwise
transferred.
37.2 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 of the execution of such sublease. As of
the date of each Lease Supplement, Lessee shall lease
the respective Property described in such Lease
Supplement from Lessor, and any existing tenant
respecting such Property shall automatically be deemed
to be a subtenant of the applicable Lessee with respect
to such Property 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, any Lessee
may sublet (i) any Property or portion thereof to any
wholly-owned Subsidiary of such Lessee and/or (ii) up to
twenty-five percent (25%) of the total square footage of
the Properties with respect to which such Lessee has
executed a Lease Supplement to any Person that is not a
wholly-owned Subsidiary of such Lessee. Except as
referenced in the immediately preceding sentence, no
other subleases shall be permitted unless consented to
in writing by Lessor, the Agent and the Majority Secured
Parties. 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 any Lessee's obligations to Lessor hereunder and each
Lessee shall remain directly and primarily liable under
this Lease as to each Property with respect to which
such Lessee has executed a Lease Supplement, or portion
thereof, so sublet. The term of any such sublease shall
not extend beyond the Term. Each sublease shall be
expressly subject and subordinate to this Lease.
ARTICLE XXXVIII
38.1 No Waiver.
No failure by Lessor or any 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 XXXIX
39.1 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 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.
39.2 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 XL
40.1 Incorporation of Covenants.
Reference is made to the Lessee Credit Agreement
and the representations and warranties of the Guarantor
contained in Section 6.1 of the Lessee Credit Agreement
(hereinafter referred to as the "Incorporated Representations
and Warranties") and the covenants contained in Articles
VIII, IX and X of the Lessee Credit Agreement (hereinafter
referred to as the "Incorporated Covenants"). Each Credit
Party 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 1.1 thereof which are used
in the Incorporated Representations and Warranties and the
Incorporated Covenants, hereinafter referred to as the
"Additional Incorporated Terms") 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, the
Incorporated Covenants or the Additional Incorporated Terms,
then such waiver, amendment or modification shall be
effective with respect to the Incorporated Representations
and Warranties, the Incorporated Covenants and the Additional
Incorporated Terms as incorporated by reference into this
Lease only if consented to in writing by the Agent (acting
upon the direction of the Majority Secured Parties). In the
event of any replacement of the Lessee Credit Agreement with
a similar credit facility (the "New Facility") the
representations and warranties, covenants and additional
terms contained in the New Facility which correspond to the
representations and warranties, covenants contained in
Section 6.1 and Articles VIII, IX and X, respectively, and
such additional terms (each of the foregoing contained in the
Lessee Credit Agreement) shall become the Incorporated
Representations and Warranties, the Incorporated Covenants
and the Additional Incorporated Terms only if consented to in
writing by the Agent (acting upon the direction of the
Majority Secured Parties) 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 6.1 and Articles VIII, IX and
X, respectively, and such additional terms (each of the
foregoing contained in 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, the Incorporated Covenants
and the Additional Incorporated Terms hereunder.
ARTICLE XLI
41.1 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 XLII
42.1 Miscellaneous.
Anything contained in this Lease to the contrary
notwithstanding, all claims against and liabilities of any
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.
42.2 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 12.4 of the
Participation Agreement.
42.3 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.
42.4 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.
42.5 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.
42.6 GOVERNING LAW.
THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED,
INTERPRETED AND ENFORCED 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.
42.7 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.
42.8 Memoranda of Lease and Lease Supplements.
This Lease shall not be recorded; provided, Lessor
and each applicable Lessee shall promptly record a memorandum
of this Lease and the applicable Lease Supplement (in
substantially the form of EXHIBIT B attached hereto) or a
short form lease (in form and substance reasonably
satisfactory to Lessor) regarding each Property with respect
to which such Lessee has executed a Lease Supplement promptly
after the acquisition thereof in the local filing office with
respect thereto, in all cases at such 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.
42.9 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).
42.10 Limitations on Recourse.
Notwithstanding anything contained in this Lease to
the contrary, each 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 any Lessee under or with respect to this
Lease, the relationship of Lessor and any Lessee hereunder or
any Lessee's use of the Properties or any other liability of
Lessor to any 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 12.9 of the Participation
Agreement.
42.11 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.
42.12 Exercise of Lessor Rights.
Each 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. Lessor and
each Lessee hereby acknowledge and agree that (a) the Agent
shall, in its discretion, direct and/or act on behalf of
Lessor pursuant to the provisions of Sections 8.2(h) and 8.6
of the Participation Agreement, (b) all notices to be given
to Lessor shall be given to the Agent and (c) all notices to
be given by Lessor may be given by the Agent, at its
election.
42.13 SUBMISSION TO JURISDICTION; VENUE;
ARBITRATION.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT
RELATING TO SUBMISSION TO JURISDICTION, VENUE AND ARBITRATION
ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS
MUTANDIS.
42.14 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 ANY 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.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually,
but solely as the Owner Trustee
under the PFG Real Estate Trust
2000-1, as Lessor
By:
Name:
Title:
PERFORMANCE FOOD GROUP COMPANY,
as Lessee
By:
Name:
Title:
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:
EXHIBIT A TO THE LEASE
LEASE SUPPLEMENT NO. ___
THIS LEASE SUPPLEMENT NO. ___ (this "Lease Supplement")
dated as of ___________, 200___ between FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, not
individually, but solely as the Owner Trustee under the PFG
Real Estate Trust 2000-1, as lessor (the "Lessor"), and
_______________, a _______________ [corporation], as lessee
(the "Lessee").
WHEREAS, Lessor is the owner or will be the owner of the
Property described on Schedule 1 hereto (the "Leased
Property") and wishes to lease the same to Lessee;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions; Rules of Usage. For purposes
of this Lease Supplement, capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned
to them in Appendix A to the Participation Agreement, dated
as of June 9, 2000, among the various parties thereto from
time to time as Lessees and as Construction Agents,
Performance Food Group Company, as Guarantor, Lessor, not
individually, except as expressly stated therein, but solely
as the Owner Trustee under the PFG Real Estate Trust 2000-1,
the various banks and other lending institutions which are
parties thereto from time to time, as the Holders, the
various banks and other lending institutions which are
parties thereto 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 Holders, to the extent of their interests, as
such may be amended, modified, extended, supplemented,
restated and/or replaced from time to time.
SECTION 2. The Properties. Attached hereto as Schedule
1 is the description of the Leased Property, with an
Equipment Schedule attached hereto as Schedule 1-A, an
Improvement Schedule attached hereto as Schedule 1-B and [a
legal description of the Land / a copy of the Ground Lease]
attached hereto as Schedule 1-C. Effective upon the
execution and delivery of this Lease Supplement by Lessor and
Lessee, the Leased Property shall be subject to the terms and
provisions of the Lease. Without further action, any and all
additional Equipment funded under the Operative Agreements
and any and all additional Improvements made to the Land
shall be deemed to be titled to the Lessor and subject to the
terms and conditions of the Lease and this Lease Supplement.
This Lease Supplement shall constitute a mortgage, deed
of trust, security agreement and financing statement under
the laws of the state in which the Leased Property is
situated. The maturity date of the obligations secured
hereby shall be [___________] unless extended to not later
than [___________].
For purposes of provisions of the Lease and this Lease
Supplement related to the creation and enforcement of the
Lease and this Lease Supplement as a security agreement and a
fixture filing, Lessee is the debtor and Lessor is the
secured party. The mailing addresses of the debtor (Lessee
herein) and of the secured party (Lessor herein) from which
information concerning security interests hereunder may be
obtained are set forth on the signature pages hereto. A
carbon, photographic or other reproduction of the Lease and
this Lease Supplement or of any financing statement related
to the Lease and this Lease Supplement shall be sufficient as
a financing statement for any of the purposes referenced
herein.
SECTION 3. Use of Property. 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 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.
SECTION 4. Ratification; Incorporation by Reference.
Except as specifically modified hereby, the terms and
provisions of the Lease and the Operative Agreements are
hereby ratified and confirmed and remain in full force and
effect. The Lease is hereby incorporated herein by reference
as though restated herein in its entirety.
SECTION 5. Original Lease Supplement. The single
executed original of this Lease Supplement marked "THIS
COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on the
signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof
shall be the original executed counterpart of this Lease
Supplement (the "Original Executed Counterpart"). To the
extent that this Lease Supplement constitutes chattel paper,
as such term is defined in the Uniform Commercial Code as in
effect in any applicable jurisdiction, no security interest
in this Lease Supplement may be created through the transfer
or possession of any counterpart other than the Original
Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL
BE GOVERNED BY AND CONSTRUED, INTERPRETED TO AND ENFORCED IN
ACCORDANCE WITH THE LAW 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.
SECTION 7. Mortgage; Power of Sale. Without limiting
any other remedies set forth in the Lease, in the event that
a court of competent jurisdiction rules that the 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 hereby grants a Lien against the
Leased Property WITH POWER OF SALE, and that, upon the
occurrence 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 Leased Property.
SECTION 8. Counterpart Execution. This Lease
Supplement may be executed in any number of counterparts and
by each of the parties hereto in separate counterparts, all
such counterparts together constituting but one (1) and the
same instrument.
For purposes of the provisions of this Lease Supplement
concerning this Lease Supplement constituting a security
agreement and fixture filing, the addresses of the debtor
(Lessee herein) and the secured party (Lessor herein), from
whom information may be obtained about this Lease Supplement,
are as set forth on the signature pages hereto.
[The remainder of this page has been intentionally left
blank.]
IN WITNESS WHEREOF, each of the parties hereto has
caused this Lease Supplement to be duly executed by an
officer thereunto duly authorized as of the date and year
first above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually,
but solely as the Owner Trustee
under the PFG Real Estate Trust
2000-1, as Lessor
By:
Name:
Title:
First Security Bank, National
Association
79 South Main Street
Salt Lake City, Utah 84111
Attn: Val T. Orton
Vice President
[NAME OF LESSEE],
as Lessee
By:
Name:
Title:
[Name of Lessee]
c/o Performance Food Group Company
6800 Paragon Place, Suite 500
Richmond, Virginia 23230
Attn:
Receipt of this original counterpart of the foregoing Lease
Supplement is hereby acknowledged as the date hereof.
FIRST UNION NATIONAL BANK, as
the Agent
By:
Name:
Title:
First Union National Bank
c/o First Union Securities, Inc.
301 South College Street, TW-6
Charlotte, North Carolina 28288-0166
SCHEDULE 1
TO LEASE SUPPLEMENT NO. ____
(Description of the Leased Property)
SCHEDULE 1-A
TO LEASE SUPPLEMENT NO. ____
(Equipment)
SCHEDULE 1-B
TO LEASE SUPPLEMENT NO. ____
(Improvements)
SCHEDULE 1-C
TO LEASE SUPPLEMENT NO. ____
[(Land)/
(Ground Lease)]
EXHIBIT B TO THE LEASE
[MODIFY OR SUBSTITUTE SHORT FORM LEASE AS
NECESSARY FOR LOCAL LAW REQUIREMENTS]
Recordation requested by:
Moore & Van Allen, PLLC
After recordation return to:
Moore & Van Allen, PLLC (WMA)
100 North Tryon Street, Floor 47
Charlotte, NC 28202-4003
Space above this line
for Recorder's use
MEMORANDUM OF LEASE AGREEMENT
AND
LEASE SUPPLEMENT NO. ____
THIS MEMORANDUM OF LEASE AGREEMENT AND LEASE SUPPLEMENT
NO. ____ ("Memorandum"), dated as of [_____________, 200___],
is by and between FIRST SECURITY BANK, NATIONAL ASSOCIATION,
a national banking association, not individually, but solely
as the Owner Trustee under the PFG Real Estate Trust 2000-1,
with an office at 79 South Main Street, Salt Lake City, Utah
84111 (hereinafter referred to as "Lessor") and
_______________, a _______________ [corporation], with an
office at 6800 Paragon Place, Suite 500, Richmond, Virginia
23230 (hereinafter referred to as "Lessee").
WITNESSETH:
That for value received, Lessor and Lessee do hereby
covenant, promise and agree as follows:
1. Demised Premises and Date of Lease. Lessor has
leased to Lessee, and Lessee has leased from Lessor, for the
Term (as hereinafter defined), certain real property and
other property located in [________________], which is
described in the attached Schedule 1 (the "Property"),
pursuant to the terms of a Lease Agreement among Lessor and
respecting each particular property subject to the Lease as
of the Initial Closing Date (as defined pursuant to the terms
of the Lease), each Credit Party (as defined pursuant to the
terms of the Lease) referenced on the signature pages thereto
which has executed a lease supplement pursuant to the terms
of the Lease with respect to such property and respecting any
other property which becomes subject to the Lease after the
Initial Closing Date, each other Eligible Lessee (as defined
pursuant to the terms of the Lease) designated as a lessee in
any lease supplement pursuant to the terms of the Lease
respecting any such property, as lessee dated as of June
9, 2000 (as such may be amended, modified, extended,
supplemented, restated and/or replaced from time to time,
"Lease") and a Lease Supplement No. _____ between Lessor and
Lessee dated as of ______________ (the "Lease Supplement").
The Lease and the Lease Supplement shall constitute a
mortgage, deed of trust and security agreement and financing
statement under the laws of the state in which the Property
is situated. The maturity date of the obligations secured
thereby shall be ___________, unless extended to not later
than ___________.
For purposes of provisions of the Lease and the Lease
Supplement related to the creation and enforcement of the
Lease and the Lease Supplement as a security agreement and a
fixture filing, Lessee is the debtor and Lessor is the
secured party. The mailing addresses of the debtor (Lessee
herein) and of the secured party (Lessor herein) from which
information concerning security interests hereunder may be
obtained are as set forth on the signature pages hereof. A
carbon, photographic or other reproduction of this Memorandum
or of any financing statement related to the Lease and the
Lease Supplement shall be sufficient as a financing statement
for any of the purposes referenced herein.
2. Term and Purchase Option. The term of the Lease
for the Property ("Term") commenced as of __________, 200__
and shall end as of _________, 200__, unless the Term is
earlier terminated in accordance with the provisions of the
Lease. The tenant has a purchase option under the Lease.
3. Tax Payer Numbers.
Lessor's tax payer number: __________________.
Lessee's tax payer number: __________________.
4. Mortgage; Power of Sale. Without limiting any
other remedies set forth in the Lease, in the event that a
court of competent jurisdiction rules that the 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 the terms
of the Lease and the Lease Supplement, a Lien against the
Property 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
Property.
5. Effect of Memorandum. The purpose of this
instrument is to give notice of the Lease and the Lease
Supplement and their respective terms, covenants and
conditions to the same extent as if the Lease and the Lease
Supplement were fully set forth herein. This Memorandum
shall not modify in any manner the terms, conditions or
intent of the Lease or the Lease Supplement and the parties
agree that this Memorandum is not intended nor shall it be
used to interpret the Lease or the Lease Supplement or
determine the intent of the parties under the Lease or the
Lease Supplement.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have duly
executed this instrument as of the day and year first
written.
LESSOR:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, not
individually, but solely as the
Owner Trustee under the PFG
Real Estate Trust 2000-1
By:
Name:
Title:
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attn: Val T. Orton
Vice President
LESSEE:
[NAME OF LESSEE]
By:
Name:
Title:
[Name of Lessee]
c/o Performance Food Group Company
6800 Paragon Place, Suite 500
Richmond, Virginia 23230
Attn:
SCHEDULE 1
(Description of Property)
[CONFORM TO STATE LAW REQUIREMENTS]
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Memorandum of Lease Agreement and Lease
Supplement No. _____ was acknowledged before me, the
undersigned Notary Public, in the County of _________________
this _____ day of ______________, by ________________, as
__________________ of FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not
individually, but solely as the Owner Trustee under the PFG
Real Estate Trust 2000-1, on behalf of the Owner Trustee.
[Notarial Seal]
Notary Public
My commission expires: ____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Memorandum of Lease Agreement and Lease
Supplement No. _____ was acknowledged before me, the
undersigned Notary Public, in the County of _________________
this _____ day of ______________, by ________________, as
__________________ of ___________________, a
____________________ [corporation], on behalf of the
[corporation].
[Notarial Seal]
Notary Public
My commission expires: ____________
