Exhibit 4.24
MASTER LEASE AND SECURITY AGREEMENT
THIS MASTER LEASE AND SECURITY AGREEMENT (this "Lease"), dated as of
May 30, 1997, is entered into between SUMITOMO BANK LEASING AND FINANCE,
INC., a Delaware corporation, as the Lessor, and RITE AID REALTY CORP., a
Delaware corporation, as the Lessee.
W I T N E S S E T H:
WHEREAS, the Lessor wishes to finance (i) the development of certain
real property and construction of improvements to be used by the Lessee and
(ii) the acquisition of certain equipment and systems related to such real
property and improvements and (iii) the acquisition of certain other assets
to be used by the Lessee;
WHEREAS, the Lessee, as Construction Agent, will construct such
improvements which, as constructed, will be the property of the Lessor and
will become part of the Leased Assets subject to the terms of this Lease;
WHEREAS, the Lessor desires to lease to the Lessee, and the Lessee
desires to lease from the Lessor, the Leased Assets from time to time
subject to this Lease; and
WHEREAS, the Lessee is a wholly-owned direct subsidiary of Rite Aid
Corporation, and Rite Aid Corporation is willing to guarantee the payment
and performance of all of the Lessee's obligations hereunder and under the
other documents entered into by the Lessee in connection herewith;
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions; Interpretation. Capitalized terms used but not
otherwise defined in this Lease have the respective meanings specified in
Appendix 1 to this Lease; and the rules of interpretation set forth in
Appendix 1 to this Lease shall apply to this Lease.
ARTICLE II
PURCHASE AND LEASE
2.1. Acceptance and Lease of Assets. (a) Properties. Subject to the
terms and conditions of this Lease, on each Acquisition Date for a parcel
of Land (i) the Lessee shall convey a leasehold interest in such parcel of
Land to the Lessor pursuant to a Ground Lease, or the Lessor shall purchase
a fee interest in such parcel of Land and the applicable Person shall
convey a fee simple interest in the Improvements to be constructed thereon
to the Lessor, and the Lessor shall accept delivery of, such Land pursuant
to the terms hereof and (ii) the Lessor shall demise and lease to the
Lessee hereunder for the Base Term applicable thereto the Lessor's interest
in such Land together with any Improvements which thereafter may be
constructed thereon pursuant to the Construction Agency Agreement or this
Lease, and the Lessee hereby agrees, expressly for the direct benefit of
the Lessor, to lease from the Lessor for such Base Term, the Lessor's
interest in such Land together with the Lessor's interest in any
Improvements which thereafter may be constructed thereon pursuant to the
Construction Agency Agreement and this Lease.
(b) Equipment and Systems. Subject to the terms and conditions
of this Lease, from time to time after the Acquisition Date for any
Property and on or before the Base Date therefor, (i) the Lessor shall
purchase Equipment and Systems relating to such Property pursuant to the
terms hereof (and subject to the conditions set forth herein) and (ii) the
Lessor shall demise and lease to the Lessee hereunder for the Base Term
applicable thereto the Lessor's interest in such Equipment and Systems, and
the Lessee hereby agrees, expressly for the direct benefit of the Lessor,
to lease from the Lessor for such Base Term, the Lessor's interest in such
Equipment and Systems.
(c) Additional Assets. Subject to the terms and conditions of
this Lease, on each Acquisition Date for any Other Asset not constituting
Equipment and Systems (i) the Lessor shall purchase such Other Asset
pursuant to the terms hereof (and subject to the conditions set forth
herein) and (ii) the Lessor shall demise and lease to the Lessee hereunder
for the Base Term applicable thereto the Lessor's interest in such Other
Asset, and the Lessee hereby agrees, expressly for the direct benefit of
the Lessor, to lease from the Lessor for such Base Term, the Lessor's
interest in such Other Asset.
2.2. Acceptance Procedure. The Lessee hereby agrees that the
execution and delivery by the Lessee on each Acquisition Date of an
appropriately completed Lease Supplement shall, without further act,
constitute the unconditional and irrevocable acceptance by the Lessee of
all of the Leased Asset which is the subject of such Lease Supplement for
all purposes of this Lease and the other Operative Documents on the terms
set forth therein and herein, and that all of such Leased Assets shall be
deemed to be included in the leasehold estate of this Lease and shall be
subject to the terms and conditions of this Lease as of the applicable
Acquisition Date (or, in the case of any asset constituting Equipment and
Systems, as of such later date on which such asset is acquired by the
Lessor).
2.3. Lease Term. This Lease shall be in full force and effect on the
Closing Date. The Base Date and the Base Term for each Leased Asset shall
be set forth in the applicable Lease Supplement therefor.
2.4. Title. Each Leased Asset is leased to the Lessee without, except
as expressly set forth herein, any representation or warranty, express or
implied, by the Lessor and subject to the rights of parties in possession,
the existing state of title (including, without limitation, Permitted Liens
other than Lessor Liens) and all applicable Requirements of Law. The Lessee
shall in no event have any recourse against the Lessor for any defect in or
exception to title to any Leased Asset other than to the extent resulting
from Lessor Liens.
ARTICLE III
FUNDING OF ADVANCES
3.1. Lessor Commitment. Subject to the conditions and terms hereof,
the Lessor shall, upon the written request of the Lessee from time to time,
make Advances on Funding Dates for the purpose of (i) in the case of any
Property, financing the acquisition, ownership, insurance, renovation and
improvement of such Property during the Construction Period applicable
thereto, (ii) in the case of any Equipment and Systems, financing the
acquisition, ownership and insurance of any asset constituting Equipment
and Systems during the Construction Period for the related Property and
(iii) in the case of any Other Asset not constituting Equipment and
Systems, financing the acquisition of such Other Asset. Notwithstanding any
other provision hereof, the Lessor shall not be obligated to make any
Advance if, after giving effect thereto, the aggregate original amounts of
Advances (x) with respect to the Leased Asset to be funded thereby would
exceed the Lessor's Commitment relating thereto or (y) with respect to all
Leased Assets would exceed the Lessor's Total Commitment.
3.2. Procedures for Advances. (a) With respect to each funding of an
Advance, the Lessee shall give the Lessor and the Paying Agent prior
written notice not later than 3:00 p.m., New York City time, five (5)
Business Days prior to the date of the proposed funding, pursuant to a
Funding Request substantially in the form of Exhibit A (a "Funding
Request"), specifying: (i) the proposed Funding Date (the "Funding Date"),
(ii) the amount of Advance requested, (iii) whether such proposed Funding
Date will also be an Acquisition Date, (iv) the Leased Asset to which such
Advance is being allocated and the allocation of such Advance among the
various categories of costs and expenses listed in clause (c) below, (v)
the allocation of the Debt Contribution between CP Tranches and Eurodollar
Tranches and (vi) the requested Interest Periods for such CP Tranches. With
respect to any Funding Request related to the acquisition of a Property, in
addition to the foregoing, the Lessee shall also specify: (i) the Property
to be acquired, (ii) whether the Land Component thereof is to be acquired
through a Ground Lease or fee interest, (iii) the seller and/or ground
lessor of the Property, and (iv) the Estimated Improvement Costs for such
Property.
(b) Except as the parties may otherwise agree in writing, and
except for the initial Funding Date for any Leased Asset and Funding Dates
caused by the maturity of a CP Tranche on a date other than a Scheduled
Payment Date, each Funding Date shall occur on a Scheduled Payment Date.
(c) Advances shall be made solely to pay or reimburse the
Construction Agent or the Lessee for (i) Land Acquisition Costs and
Property Improvement Costs (including Capitalized Interest and Capitalized
Commitment Fees relating to any Property), (ii) Other Asset Acquisition
Costs (including Capitalized Interest and Capitalized Commitment Fees
relating to Equipment and Systems) and (iii) Transaction Expenses paid or
payable by the Lessee in connection with the preparation, execution and
delivery of the Operative Documents and all fees paid or payable by the
Lessee to the Paying Agent and the Lessor in connection with the Operative
Documents.
(d) All remittances made by the Lessor for the funding of any
Advance shall be made through the Paying Agent on the applicable Funding
Date in immediately available federal funds by wire transfer to the account
designated by the Lessee except that a portion of the initial Advance shall
be made (in accordance with instructions to be included in the initial
Funding Request) by wire transfer directly to the appropriate Persons for
Transaction Expenses.
(e) Notwithstanding anything in this Lease or any other
Operative Document to the contrary, with respect to the Aircraft acquired
by the Lessor on the date hereof, the Lessee may, until the Base Date for
such Aircraft, request Advances to pay the cost of outfitting such Aircraft
to the Lessee's specifications, and to pay Capitalized Interest and
Capitalized Commitment Fees relating thereto, as if such Aircraft
constituted Equipment and Systems under this Lease. Any such Advance shall
constitute an Advance for all purposes of this Lease and the other
Operative Documents.
ARTICLE IV
CONDITIONS PRECEDENT TO
CLOSING DATE, ACQUISITION DATES AND ADVANCES
4.1. Closing Date. The closing date (the "Closing Date") shall occur
on the earliest date on which the following conditions precedent shall have
been satisfied or waived in the reasonable discretion of the parties
hereto:
(a) Master Lease. This Lease shall have been duly authorized,
executed and delivered by the parties hereto.
(b) Master Construction Agency Agreement. The Construction
Agency Agreement shall have been duly authorized, executed and
delivered by the parties hereto.
(c) Guaranty. The Guaranty shall have been duly authorized,
executed and delivered by the Guarantor.
(d) Responsible Employee's Certificate of Lessee. The Lessor
shall have received a Responsible Employee's Certificate of the
Lessee, in substantially the form of Exhibit E, stating that (i) each
and every representation and warranty of the Lessee contained in each
Operative Document to which it is a party is true and correct on and
as of the Closing Date; (ii) no Default or Event of Default has
occurred and is continuing under any Operative Document to which it
is a party; (iii) each Operative Document to which the Lessee is a
party is in full force and effect with respect to it; and (iv) the
Lessee has duly performed and complied with all covenants, agreements
and conditions contained herein or in any Operative Document required
to be performed or complied with by it.
(e) Resolutions and Incumbency Certificate, etc. of Lessee. The
Lessee shall have delivered to the Lessor (i) a certificate of its
Secretary or an Assistant Secretary attaching and certifying as to
(A) the resolutions of its Board of Directors duly authorizing the
execution, delivery and performance by it of each Operative Document
to which it is or will be a party, (B) its certificate of
incorporation and by-laws, and (C) the incumbency and signature of
persons authorized to execute and deliver on its behalf the Operative
Documents to which it is a party and (ii) a certificate of good
standing with respect to it issued by the Secretary of State of the
State of its incorporation.
(f) Responsible Employee's Certificate of Guarantor. The Lessor
shall have received a Responsible Employee's Certificate of the
Guarantor, in substantially the form of Exhibit F, stating that (i) each
and every representation and warranty of the Guarantor contained in each
Operative Document to which it is a party is true and correct on and
as of the Closing Date; (ii) each Operative Document to which the
Guarantor is a party is in full force and effect with respect to it;
and (iii) the Guarantor has duly performed and complied with all
covenants, agreements and conditions contained herein or in any
Operative Document required to be performed or complied with by it.
(g) Resolutions and Incumbency Certificate, etc. of Guarantor.
The Guarantor shall have delivered to the Lessor (i) a certificate of
its Secretary or an Assistant Secretary attaching and certifying as
to (A) the resolutions of its Board of Directors duly authorizing the
execution, delivery and performance by it of each Operative Document
to which it is or will be a party, (B) its certificate of
incorporation and by-laws, and (C) the incumbency and signature of
persons authorized to execute and deliver on its behalf the Operative
Documents to which it is a party and (ii) a certificate of good
standing with respect to it issued by the Secretary of State of the
State of its incorporation.
(h) Opinions of Counsel. Wolf, Block, Xxxxxx and Xxxxx-Xxxxx,
special counsel to the Lessee, internal counsel for the Company,
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx, special counsel to the
Guarantor, and internal counsel for the Guarantor shall each have
issued to the Lessor an opinion in form and scope satisfactory to the
Lessor.
(i) Fee Letter. The Fee Letter shall have been duly authorized,
executed and delivered by the Lessor, the Paying Agent and the
Lessee.
(j) Arrangement Fee. The Lessor shall have received that
portion of the fees identified in the Fee Letter as the arrangement
fee.
4.2. Acquisition Date Conditions. (a) All Assets. The occurrence of
each Acquisition Date with respect to any Leased Asset is subject to the
following conditions precedent:
(i) Lease Supplement. The Lease Supplement relating to such
Leased Asset shall have been duly executed and delivered by the
parties hereto.
(ii) Appraisal. The Lessor shall have received an Appraisal of
such Leased Asset, which Appraisal shall show, in the case of a
Leased Asset consisting of Property, that as of Substantial
Completion and the Expiration Date the Fair Market Sales Value of
such Property shall not be less than 100% of the sum of the Land
Acquisition Cost, Estimated Improvements Cost, Capitalized Interest
and Transaction Expenses expected to be funded with respect to such
Property.
(iii) Filings. The Operative Documents (or memoranda thereof),
any supplements thereto and any UCC Financing Statements shall have
been recorded, registered and filed, if necessary, in such manner as
to perfect and protect the Lessor's interest in such Leased Asset.
(iv) Taxes. All taxes, assessments, fees and other charges in
connection with the execution, delivery, recording, filing and
registration of the Operative Documents shall have been paid or
provisions for such payment shall have been made to the satisfaction
of the Lessor.
(v) Governmental Approvals. All necessary (or, in the
reasonable opinion of the Lessor, advisable) Governmental Actions, in
each case required by any Requirement of Law, shall have been
obtained or made and be in full force and effect.
(vi) Requirements of Law. In the reasonable opinion of the
Lessor and its counsel, the acquisition and ownership of such Leased
Assets as contemplated by the Operative Documents do not and will not
violate in any material respect any material Requirement of Law and
do not and will not subject the Lessor to any material adverse
regulatory prohibitions or constraints.
(vii) Responsible Employee's Certificates. The Lessor shall
have received a Responsible Employee's Certificate of the Lessee, in
substantially the form of Exhibit E, and a Responsible Employee's
Certificate of the Guarantor, in substantially the form of Exhibit F.
(b) Properties. In addition to the conditions specified in (a)
above, the occurrence of each Acquisition Date with respect to any Leased
Asset consisting of Property is subject to the following conditions
precedent:
(i) Deed or Ground Lease. The Lessor shall have
received a Deed or Ground Lease with respect to the Land constituting
a part of such Property.
(ii) Mortgage. Except with respect to a Property located in
Maryland or such other jurisdiction as the lessor may agree, the
Lessor shall have received a Mortgage relating to such Property duly
executed and delivered by the Lessee.
(iii) Construction Agency Agreement Supplement. The
Construction Agency Agreement Supplement relating to such Property
shall have been duly executed and delivered by the parties hereto.
(iv) Opinion of Counsel. Counsel to the Lessee in the
jurisdiction where such Property is located shall have delivered an
opinion as to local law matters in form and scope satisfactory to the
Lessor.
(v) Environmental Audit. The Lessor shall have received an
Environmental Audit for such Property in form and substance
acceptable to the Lessor.
(vi) Survey and Title Insurance. The Lessee shall have
delivered to the Lessor an ALTA/1992 (Urban) Survey of the Land
included in such Property prepared by an independent, licensed
registered public land surveyor and meeting the Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys as adopted by
the American Land Title Association/American Society and American
Congress on Surveying and Mapping in 1992 certified to the Lessor and
the title company and otherwise in form reasonably acceptable to the
Lessor and an ALTA owners or leasehold title insurance policy
covering such Property in favor of the Lessor, such policy to be
dated as of the Acquisition Date and in an amount not less than the
aggregate Commitment of the Lessor with respect to such Property and to
be reasonably satisfactory to the Lessor with an owner's comprehensive
(ALTA 9) endorsement and a 3.0 zoning endorsement and such other
endorsements requested by the Lessor to the extent available in the
State where such Property is located.
(vii) Property Insurance. The Lessor shall have received
evidence of insurance with respect to such Property required to be
maintained pursuant to this Lease, setting forth the respective
coverages, limits of liability, carrier, policy number and period of
coverage.
(viii) Architect's Certificate. The Lessor shall have received a
certificate from the Architect, in form and scope satisfactory to the
Lessor, certifying that (i) such Property as improved in accordance
with the Plans and Specifications and the contemplated use thereof by
the Lessee will comply in all material respects with all Requirements
of Law (including, without limitation, all zoning and land use laws)
and Insurance Requirements and (ii) the Plans and Specifications have
been prepared in accordance with applicable Requirements of Law
(including, without limitation, building, planning, zoning and fire
codes) and upon completion of the Improvements in accordance with the
Plans and Specifications, such Improvements on the Property will not
encroach in any manner onto any adjoining land (except as permitted
by express written easements or as insured by appropriate title
insurance).
(c) Aircraft. In addition to the conditions specified in (a)
above, the occurrence of each Acquisition Date with respect to any Leased
Asset consisting of Aircraft is subject to the following conditions
precedent:
(i) Xxxx of Sale. The Lessor shall have received an AC Form
8050-2 Xxxx of Sale (or such other form of xxxx of sale as may be
approved by the FAA on the Acquisition Date for the Aircraft)
covering the Aircraft, executed by the owner thereof in favor of the
Lessor.
(ii) Registration. The Lessor shall have received evidence
satisfactory to it that application for registration of the Aircraft
in the name of the Lessee has been duly made with the FAA.
(iii) Airworthiness. The Lessor shall have received evidence
satisfactory to it that the Aircraft has been certified by the FAA
with an appropriate airworthiness certificate and that such
certificate is in full force and effect.
(iv) Opinion of Counsel. FAA counsel shall have delivered an
opinion in form and scope satisfactory to the Lessor.
(v) Aircraft Insurance. The Lessor shall have received evidence
of insurance with respect to such Aircraft required to be maintained
pursuant to this Lease, setting forth the respective coverages,
limits of liability, carrier, policy number and period of coverage.
4.3. Conditions Precedent to Each Advance. The obligations of
the Lessor to make an Advance on a Funding Date, including the
initial Advance occurring on any Acquisition Date, is subject to
satisfaction or waiver of the following conditions precedent:
(a) Funding Request. The Lessor shall have received a
fully executed counterpart of the applicable Funding Request,
executed by the Lessee.
(b) Accuracy of Representations and Warranties. On the
applicable Funding Date the representations and warranties of the
Lessee contained herein and in each of the other Operative Documents
to which it is a party and of the Guarantor contained in the Guaranty
shall each be true and correct in all material respects as though
made on and as of such date, except to the extent such
representations or warranties relate solely to an earlier date, in
which case such representations and warranties shall have been true
and correct on and as of such earlier date.
(c) No Default. There shall not have occurred and be continuing
any Default or Event of Default and no Default or Event of Default
will have occurred after giving effect to the making of the Advance
requested by such Funding Request.
(d) Permits. In the case of an Advance relating to a Property,
all permits and approvals required by any Governmental Authority in
connection with the Construction for which such Advance is being made
shall have been issued or obtained and shall be in full force and
effect.
(e) Title Policy Endorsement. In the case of an Advance
relating to a Property, the Lessor shall have received an endorsement
to the title policy delivered pursuant to this Lease, dated on or one
Business Day before the date of such Advance, (i) indicating that
since the date of the preceding Advance relating to such Property
there has been no change in the state of title no additional survey
exceptions not theretofor approved by the Lessor and (ii) updating
the title policy to the date of such endorsement.
ARTICLE V
CONDITIONS TO SUBSTANTIAL COMPLETION
5.1. Conditions to Substantial Completion of a Property. Substantial
Completion with respect to a Property shall be deemed to have occurred for
purposes of the Operative Documents at such time as the Construction shall
have been substantially completed in accordance with the Plans and
Specifications and all Applicable Law and the Lessee shall have delivered
to the Lessor a 3.1 zoning endorsement reasonably satisfactory to the
Lessor, and such Property shall be ready for occupancy and operation, as
evidenced by certificates of the Architect and the Construction Agent, the
Prime Contractor's application for the payment to be made upon substantial
completion and the issuance by the appropriate Governmental Authority of
certificates of occupancy for all of the Improvements contemplated by the
Plans and Specifications, all in form and substance reasonably satisfactory
to the Lessor.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Representations of the Lessor. The Lessor represents and
warrants to the Lessee that:
(a) ERISA. The Lessor is not and will not be funding its
Advances hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan"
(as defined in Section 3(3) of ERISA) which is subject to Title I of
ERISA, or a "plan" (as defined in Section 4975(e)(1) of the Code).
(b) Status. The Lessor is a commercial bank, savings and loan
association, savings bank, depository institution, insurance company,
branch or agency of a foreign bank or other similar financial
institution, or an Affiliate thereof.
(c) Corporate Power and Authority. The Lessor has the corporate
power and authority to execute, deliver and perform the terms and
provisions of the Operative Documents to which it is or will be a
party and has taken all necessary corporate action to authorize the
execution, delivery and performance of the Operative Documents to
which it is a party and has duly executed and delivered each
Operative Document required to be executed and delivered by it and,
assuming the due authorization, execution and delivery thereof on the
part of each other party thereto, each such Operative Document
constitutes a legal, valid and binding obligation enforceable against
it in accordance with its terms, except as the same may be limited by
insolvency, bankruptcy, reorganization or other similar laws relating
to or affecting the enforcement of creditors' rights or by general
equitable principles and except as the same may be limited by certain
circumstances under law or court decisions in respect of provisions
providing for indemnification of a party with respect to liability
where such indemnification is contrary to public policy.
(d) Investment Company Act. The Lessor is not an "investment
company" or a company "controlled" by an "investment company," within
the meaning of the Investment Company Act of 1940, as amended.
6.2. Representations of Lessee. The Lessee represents and
warrants to the Lessor that:
(a) Corporate Status. The Lessee (i) is a duly organized and
validly existing corporation in good standing under the laws of the
State of Delaware and (ii) has duly qualified and is authorized to do
business and is in good standing in all jurisdictions where the
failure to do so might have a material adverse effect on it or its
properties.
(b) Corporate Power and Authority. The Lessee has the corporate
power and authority to execute, deliver and perform the terms and
provisions of the Operative Documents to which it is or will be a
party and has taken all necessary corporate action to authorize the
execution, delivery and performance of the Operative Documents to
which it is a party and has duly executed and delivered each
Operative Document required to be executed and delivered by it and,
assuming the due authorization, execution and delivery thereof on the
part of each other party thereto, each such Operative Document
constitutes a legal, valid and binding obligation enforceable against
it in accordance with its terms, except as the same may be limited by
insolvency, bankruptcy, reorganization or other similar laws relating
to or affecting the enforcement of creditors' rights or by general
equitable principles and except as the same may be limited by certain
circumstances under law or court decisions in respect of provisions
providing for indemnification of a party with respect to liability
where such indemnification is contrary to public policy.
(c) No Violation. Neither the execution, delivery and
performance by the Lessee of the Operative Documents to which it is
or will be a party nor compliance with the terms and provisions
thereof, nor the consummation by the Lessee of the transactions
contemplated therein (i) will result in a violation by the Lessee of
any applicable provision of any law, statute, rule, regulation,
order, writ, injunction or decree of any court or governmental
instrumentality having jurisdiction over the Lessee or any Leased
Asset that would materially adversely affect (x) the validity or
enforceability of the Operative Documents to which the Lessee is a
party, or the title to, or value or condition of, any Leased Asset,
or (y) the business, financial position, or results of operations of
the Lessee and its subsidiaries taken as a whole or the ability of
the Lessee to perform its obligations under the Operative Documents,
(ii) will result in any breach which would constitute a default
under, or (other than pursuant to the Operative Documents) result in
the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of the Lessee pursuant to
the terms of, any indenture, loan agreement or other agreement for
borrowed money to which the Lessee is a party or by which it or any
of its property or assets is bound or to which it may be subject
(other than Permitted Liens), or (iii) will violate any provision of
the certificate of incorporation or by-laws of the Lessee.
(d) Litigation. There are no actions, suits or proceedings
pending or, to the knowledge of the Lessee, threatened (i) that are
reasonably likely to have a material adverse effect on any Leased
Asset or on the business, financial position or results of operations
of the Lessee and its subsidiaries taken as a whole or (ii) that
question the validity of the Operative Documents or the rights or
remedies of the Lessor with respect to the Lessee or any Leased Asset
under the Operative Documents.
(e) Governmental Approvals. No Governmental Action by any
Governmental Authority having jurisdiction over the Lessee or any
Leased Asset is required to authorize or is required in connection
with (i) the execution, delivery and performance by the Lessee of any
Operative Document to which it is a party or (ii) the Construction,
except for any such Governmental Action which is not yet required to
be obtained and will be duly obtained at and when required by
Applicable Law.
(f) Investment Company Act. The Lessee is not an "investment
company" or a company "controlled" by an "investment company," within
the meaning of the Investment Company Act of 1940, as amended.
(g) Public Utility Holding Company Act. The Lessee is not a
"holding company" or a "subsidiary company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Company Act of
1935, as amended.
(h) Provided Information. The information and materials which
have been provided by the Lessee or any Affiliate of the Lessee to
the Lessor in writing prior to the Closing Date are true and accurate
in all material respects on the date as of which such information and
materials are dated or certified and are not incomplete by omitting
to state any fact necessary to make such information (taken as a
whole) not misleading at such time in light of the circumstances
under which such information was provided.
(i) Taxes. All United States Federal income tax returns and all
other tax returns which are required to have been filed have been or
will be filed by or on behalf of the Lessee by the respective due
dates, including extensions, and all taxes due with respect to the
Lessee shown on such returns or pursuant to any assessment received
by the Lessee have been or will be paid or are being contested in
good faith by the Lessee by appropriate procedures. The charges,
accruals and reserves on the books of the Lessee in respect of taxes
or other governmental charges are, in the opinion of the Lessee,
adequate.
(j) Environmental Laws. The Lessee is in compliance with all
Environmental Laws relating to pollution and environmental control in
all domestic jurisdictions in which all real property of the Lessee,
including all Land, is located, other than those the non-compliance
with which would not have a material adverse effect on any Land or
the business, financial position or results of operations of the
Lessee and its subsidiaries taken as a whole.
(k) Offer of Securities, etc. Neither the Lessee nor any Person
authorized to act on the Lessee's behalf has, directly or indirectly,
offered any interest in any Leased Asset or any other interest
similar thereto (the sale or offer of which would be integrated with
the sale or offer of such interest in any Leased Asset), for sale to,
or solicited any offer to acquire any of the same from, any Person
other than the Lessor and other "accredited investors" (as defined in
Regulation D of the Securities and Exchange Commission).
(l) Properties. Each Prime Construction Contract for a Property
will provide for construction of the Improvements thereto for a fixed
price or a guaranteed maximum price on or before a date certain, will
contain customary retainage provisions and otherwise be in form and
substance reasonably satisfactory to the Lessor. Each Property as
improved in accordance with the Plans and Specifications for such
Property and the contemplated use thereof by the Lessee and its
agents, assignees, employees, lessees, licensees and tenants will
comply in all material respects with all Requirements of Law
(including, without limitation, all zoning and land use laws) and
Insurance Requirements, except for such Requirements of Law as the
Lessee shall be contesting in good faith by appropriate proceedings.
Upon Substantial Completion of the Construction of the Improvements
to each Property, all water, sewer, electric, gas, telephone and
drainage facilities and all other utilities required to adequately
service such Improvements for its intended use will be available
pursuant to adequate permits (including any that may be required
under applicable Environmental Laws). There is no action, suit or
proceeding (including any proceeding in condemnation or eminent
domain or under any Environmental Law) pending or, to the best of the
Lessee's knowledge, threatened with respect to the Lessee, its
Affiliates or such Property which materially adversely affects the
title to, or the use, operation or value of, such Property. No fire
or other casualty with respect to such Property has occurred which
fire or other casualty has had a material adverse effect on the value
or condition of such Property. All utilities serving such Property,
or proposed to serve such Property in accordance with the related
Plans and Specifications, are located in, and vehicular access to the
Improvements on such Property is provided by, either public
rights-of-way abutting such Property or Appurtenant Rights. All
material licenses, approvals, authorizations, consents, permits
(including, without limitation, building, demolition and
environmental permits, licenses, approvals, authorizations and
consents), easements and rights-of-way, including proof and
dedication, required for (x) the use, treatment, storage, transport,
disposal or disposition of any Hazardous Substance on, at, under or
from such Property, and (y) construction of the Improvements in
accordance with the Plans and Specification and the Construction
Agency Agreement have either been obtained from the appropriate
Governmental Authorities having jurisdiction or from private parties,
as the case may be, or will be obtained from the appropriate
Governmental Authorities having jurisdiction or from private parties,
as the case may be, prior to commencing any such construction or use
and operation, as applicable.
(m) Aircraft. Neither the execution and delivery of a Lease
Supplement relating to Aircraft nor any of the transactions relative
to Aircraft contemplated by this Lease, require the consent or
approval of the FAA, except for notice pursuant to FAA Regulation
ss.91.23 (14 C.F.R. ss.91.23).
(n) Title; Ground Lease. The Lessor will at all times during
the Base Term have good title to all Improvements, subject only to
Permitted Liens. Each Ground Lease, if any, is in form and substance
sufficient to convey a valid leasehold interest in the applicable
Land. Each Deed is in form and substance sufficient to convey to the
Lessor good and marketable title to the applicable Property subject
only to Permitted Liens.
(o) Insurance. The Lessee carries insurance with reputable
insurers in respect of its material assets, in such manner, in such
amounts and against such risks as is customarily maintained by other
Persons of similar size engaged in similar business.
(p) Flood Hazard Areas. Except as otherwise identified on the
survey delivered pursuant to Section 4.2(b), no portion of any
Property is located in an area identified as a special flood hazard
area by the Federal Emergency Management Agency or other applicable
agency. If any Property is located in such an area, then flood
insurance has been obtained for such Property in accordance with
Section 17.2 and in accordance with the National Flood Insurance Act
of 1968, as amended.
(q) Defaults. The Lessee is not in default under (and no event
has occurred which with the giving of notice or lapse of time would
result in a default under) any instrument evidencing any debt or any
agreement relating thereto or any mortgage, deed of trust, security
agreement, lease, franchise or other agreement to which the Lessee is
a party or by which the Lessee or any of its properties or assets is
bound or to which it may be subject.
(r) Use of Advances. No part of any Advance will be used
directly or indirectly for the purpose of purchasing or carrying, or
for payment in full or in part of debt that was incurred for the
purposes of purchasing or carrying, any margin security as such term
is defined in Section 207.2 of Regulation G of the Board of Governors
of the Federal Reserve System (12 C.F.R., Chapter II, Part 207).
(s) Solvency. The Lessee is Solvent.
6.3. Representations of the Lessee with Respect to Each Advance. The
Lessee represents and warrants to the Lessor as of each Funding Date as
follows:
(a) Representations. The representations and warranties of the
Lessee and of the Guarantor set forth in the Operative Documents
(including the representations and warranties set forth in Section
6.2) are true and correct in all material respects on and as of such
Funding Date, except to the extent such representations or warranties
relate solely to an earlier date, in which case such representations
and warranties shall have been true and correct on and as of such
earlier date. There exists no Default or Event of Default, and no
Default or Event of Default will occur as a result of, or after
giving effect to, the Advance requested by the Funding Request on
such date.
(b) Improvements. In the case of a Funding Date for any
Property, the Construction of the Improvements to such Property to
date, if any, has been performed in a good and workmanlike manner,
substantially in accordance with the Plans and Specifications for
such Property and in compliance with all material Insurance
Requirements and Requirements of Law.
(c) Liens. The Lessee has not permitted Liens to be placed
against any Leased Asset other than Permitted Liens.
(d) Advance. The conditions precedent to such Advance set forth
in Article IV have been satisfied. The amount of the Advance
requested represents amounts owed to third parties in respect of Land
Acquisition Costs or to the Lessee or third parties in respect of
Other Asset Acquisition Costs or owed or paid by the Construction
Agent to third parties in respect of Property Improvements Costs and
Transaction Expenses, in each case incurred prior to the date of such
Advance and for which neither the Lessee nor the Construction Agent
has previously been reimbursed by an Advance, provided that this
representation shall not apply to any portion of an Advance made on
Substantial Completion which is to be used to pay for open punch list
items or other holdbacks. With respect to any portion of an Advance
made on Substantial Completion which is to be used to pay for open
punch list items or other holdbacks, the Lessee represents that such
portion will be used for such purpose to the extent that a contractor
is entitled thereto and that neither the Lessee nor the Construction
Agent has previously been reimbursed therefor by an Advance.
ARTICLE VII
PAYMENT OF RENT; FEES
7.1. Rent. The Lessee shall pay Base Rent in arrears on each Leased
Asset on each Payment Date during the Base Term for such Leased Asset, on
the date required under Section 24.1(i) in connection with the Lessee's
exercise of the Remarketing Option and on any date on which this Lease
shall terminate. Base Rent shall be calculated as provided in Appendix 2
hereto.
7.2. Payment of Rent. Rent shall be paid absolutely net to the
Lessor, so that this Lease shall yield to the Lessor the full amount
thereof, without setoff, deduction or reduction. Neither the Lessee's
inability or failure to take possession of all or any portion of any Leased
Asset when delivered by the Lessor, whether or not attributable to any act
or omission of the Lessee or any act or omission of the Lessor, or for any
other reason whatsoever, shall delay or otherwise affect the Lessee's
obligation to pay Rent for such Leased Asset in accordance with the terms
of this Lease.
7.3. Supplemental Rent. The Lessee shall pay to the Lessor any and
all Supplemental Rent promptly after receipt of an invoice therefor as the
same shall become due and payable, and if the Lessee fails to pay any
Supplemental Rent, the Lessor shall have all rights, powers and remedies
provided for herein or by law or equity or otherwise in the case of
nonpayment of Base Rent. The Lessee shall pay to the Lessor, as
Supplemental Rent, among other things, on demand, interest at the
applicable Overdue Rate on any installment of Base Rent not paid when due
for the period for which the same shall be overdue and on any payment of
Supplemental Rent not paid when due or demanded by the Lessor for the
period from the due date or the date of any such demand, as the case may
be, until the same shall be paid. The expiration or other termination of
the Lessee's obligations to pay Base Rent hereunder shall not limit or
modify the obligations of the Lessee with respect to Supplemental Rent.
Unless expressly provided otherwise in this Lease, in the event of any
failure on the part of the Lessee to pay and discharge any Supplemental
Rent as and when due, the Lessee shall also promptly pay and discharge any
fine, penalty, interest or cost which may be assessed or added under any
agreement with a third party for nonpayment or late payment of such
Supplemental Rent, all of which shall also constitute Supplemental Rent.
7.4. Fees. The Lessee hereby agrees to pay to the Lessor the fees set
forth in this Section 7.4. All such fees shall be non-refundable, except as
may otherwise be provided in the Fee Letter.
(a) Fee Letter. The Lessee shall pay to the Lessor the fees set
forth in the Fee Letter, under which certain amounts shall be payable
on the Closing Date and may be capitalized and included in the Lease
Balance from the relevant Leased Asset. The Fee Letter may be
supplemented from time to time in connection with the acquisition of
additional Leased Assets.
(b) Commitment Fee. The Lessee shall pay to the Lessor for each
Leased Asset, for the period (including any portion thereof when the
Lessor's obligations pursuant to Section 3.1 are suspended by reason
of the Lessee's inability to satisfy any condition of Article IV)
commencing on (and including) the Closing Date and continuing to (but
excluding), in the case of the Lessor Commitment Fee, the Base Date
for such Leased Asset, and, in the case of the Liquidity Commitment
Fee, the Expiration Date for such Leased Asset, a Commitment Fee (the
"Commitment Fee") as set forth in Appendix 2.
7.5. Capitalized Interest. If and to the extent that the Lessee does
not request an Advance to pay any Capitalized Interest, then the Lessee
will pay the amount thereof to the Lessor on the last day of the Interest
Period during which such Capitalized Interest has accrued.
7.6. Method of Payment. Each payment of Rent or any other amount due
hereunder shall be made by the Lessee to the Lessor prior to 1:00 p.m., New
York City time, at the place of payment designated in writing by the Lessor
in funds consisting of lawful currency of the United States of America
which shall be immediately available on the scheduled date when such
payment shall be due, unless such scheduled date shall not be a Business
Day, in which case such payment shall be made on the next succeeding
Business Day. Payments received after 1:00 p.m., New York City time, on any
day shall be deemed received on the next succeeding Business Day. If
requested by the Lessee, the Lessor shall make arrangements to permit
payments hereunder to be made by the automated clearing house payments
system.
ARTICLE VIII
QUIET ENJOYMENT; RIGHT TO INSPECT
8.1. Quiet Enjoyment. Subject to Sections 2.4 and 8.2, and subject to
the rights of the Lessor contained herein and the other terms of the
Operative Documents to which the Lessee is a party, the Lessee shall
peaceably and quietly have, hold and enjoy each Leased Asset for the Base
Term applicable thereto, free of any claim or other action by the Lessor or
anyone claiming by, through or under the Lessor (other than the Lessee)
with respect to any matters arising from and after the Acquisition Date.
Such right of quiet enjoyment is independent of, and shall not affect the
Lessor's rights otherwise to initiate legal action to enforce, the
obligations of the Lessee under this Lease.
8.2. Right to Inspect. During the Lease Term, the Lessee shall, upon
reasonable notice from the Lessor (except that no notice shall be required
if an Event of Default under this Lease has occurred and is continuing),
permit the Lessor and its authorized representatives to inspect any Leased
Asset during normal business hours. Lessor and its authorized
representatives shall maintain the confidentiality of any confidential
information obtained during the course of any inspection and, at the
request and expense of the Lessee, shall execute and deliver non-disclosure
agreements to such effect as may be reasonably appropriate.
ARTICLE IX
NET LEASE, ETC.
9.1. Net Lease. This Lease shall constitute a net lease. Any present
or future law to the contrary notwithstanding, this Lease shall not
terminate, nor shall the Lessee be entitled to any abatement, suspension,
deferment, reduction, setoff, counterclaim, or defense with respect to the
Rent, nor shall the obligations of the Lessee hereunder be affected (except
as expressly herein permitted and by performance of the obligations in
connection therewith) by reason of: (i) any defect in the condition,
merchantability, design, construction, quality or fitness for use of any
Leased Asset or any part thereof, or the failure of any Leased Asset to
comply with all Requirements of Law, including any inability to occupy or
use any Leased Asset by reason of such non-compliance; (ii) any damage to,
removal, abandonment, salvage, loss, contamination of or Release from,
scrapping or destruction of or any requisition or taking of any Leased
Asset or any part thereof; (iii) any restriction, prevention or curtailment
of or interference with any use of the Leased Asset or any part thereof
including eviction; (iv) any defect in title to or rights to any Leased
Asset or any Lien on such title or rights or on any Leased Asset (other
than Lessor Liens); (v) any change, waiver, extension, indulgence or other
action or omission or breach in respect of any obligation or liability of
or by the Lessor; (vi) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceedings
relating to the Lessee or any other Person, or any action taken with
respect to this Lease by any trustee or receiver of the Lessee or any other
Person, or by any court, in any such proceeding; (vii) any claim that the
Lessee has or might have against any Person, including without limitation
the Lessor and any vendor, manufacturer, contractor of or for any portion
of any Leased Asset; (viii) any failure on the part of the Lessor to
perform or comply with any of the terms of this Lease (other than
performance by Lessor of its obligations set forth in Section 2.1 hereof),
of any other Operative Document or of any other agreement; (ix) any
invalidity or unenforceability or illegality or disaffirmance of this Lease
against or by the Lessee or any provision hereof or any of the other
Operative Documents or any provision of any thereof; (x) any restriction,
prevention or curtailment of or interference with the construction on or
any use of any Leased Asset or any part thereof; or (xi) any other cause or
circumstances, similar to the foregoing and whether or not the Lessee shall
have notice or knowledge of any of the foregoing. The agreement of the
Lessee in the preceding sentence shall not affect any claim, action or
right that the Lessee may have against the Lessor or any other Person. The
parties intend that the obligations of the Lessee hereunder shall be
covenants and agreements that are separate and independent from any
obligations of the Lessor hereunder or under any other Operative Documents
and the obligations of the Lessee shall continue unaffected unless such
obligations shall have been modified or terminated in accordance with an
express provision of this Lease.
9.2. No Termination or Abatement. The Lessee shall remain obligated
under this Lease in accordance with its terms and shall not take any action
to terminate, rescind or avoid this Lease, notwithstanding any action for
bankruptcy, insolvency, reorganization, liquidation, dissolution, or other
proceeding affecting the Lessor, or any action with respect to this Lease
which may be taken by any trustee, receiver or liquidator of the Lessor or
by any court with respect to the Lessor. The Lessee hereby waives all right
(i) to terminate or surrender this Lease (except as provided herein) or
(ii) to avail itself of any abatement, suspension, deferment, reduction,
setoff, counterclaim or defense with respect to any Rent. The Lessee shall
remain obligated under this Lease in accordance with its terms and the
Lessee hereby waives any and all rights now or hereafter conferred by
statute or otherwise to modify or to avoid strict compliance with its
obligations under this Lease. Notwithstanding any such statute or
otherwise, the Lessee shall be bound by all of the terms and conditions
contained in this Lease.
ARTICLE X
SUBLEASES
10.1. Subletting. The Lessee may, without the consent of the Lessor,
sublease any Leased Asset or any portion thereof to any Person who, to the
best of Lessee's knowledge, has not filed, or had filed against it,
insolvency proceedings or a petition under the bankruptcy laws of the
United States. No sublease or other relinquishment of possession of such
Leased Asset shall in any way discharge or diminish any of the Lessee's
obligations to the Lessor hereunder and the Lessee shall remain directly
and primarily liable under this Lease as to such Leased Asset, or portion
thereof, so sublet. Any sublease of such Leased Asset shall expressly be
made subject to and subordinated to this Lease and to the rights of the
Lessor hereunder. No such sublease may provide for use of such Leased Asset
by the sublessee in a manner materially different than that of the Lessee
prior to the sublease. In connection with any sublease, the Lessee may
request the Lessor to enter into a customary non-disturbance agreement with
the sublessee. The Lessor will act in a commercially reasonable manner in
determining whether or not to enter into such non-disturbance agreement.
ARTICLE XI
LESSEE ACKNOWLEDGMENTS
11.1. Condition of the Properties. THE LESSEE ACKNOWLEDGES AND AGREES
THAT ALTHOUGH THE LESSOR WILL OWN AND HOLD TITLE TO THE IMPROVEMENTS, THE
CONSTRUCTION AGENT IS SOLELY RESPONSIBLE UNDER THE TERMS OF THE
CONSTRUCTION AGENCY AGREEMENT FOR THE DESIGN, DEVELOPMENT, BUDGETING AND
CONSTRUCTION OF THE IMPROVEMENTS AND ANY ALTERATIONS OR MODIFICATIONS. THE
LESSEE FURTHER ACKNOWLEDGES AND AGREES THAT IT IS LEASING EACH LEASED ASSET
"AS IS" WITHOUT, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED HEREIN,
REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY THE LESSOR AND
SUBJECT TO (A) THE EXISTING STATE OF TITLE, (B) THE RIGHTS OF ANY PARTIES
IN POSSESSION THEREOF, (C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR
PHYSICAL INSPECTION MIGHT SHOW, AND (D) VIOLATIONS OF REQUIREMENTS OF LAW
WHICH MAY EXIST ON THE DATE HEREOF OR AT ANY TIME HEREAFTER. THE LESSOR HAS
NOT MADE, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED HEREIN, AND SHALL NOT BE
DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) AND SHALL NOT BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE
TITLE (OTHER THAN FOR LESSOR LIENS), VALUE, HABITABILITY, USE, CONDITION,
DESIGN, OPERATION, OR FITNESS FOR USE OF ANY LEASED ASSET (OR ANY PART
THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY LEASED ASSET (OR ANY PART THEREOF)
AND THE LESSOR SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT
THEREIN (OTHER THAN FOR LESSOR LIENS) OR THE FAILURE OF ANY LEASED ASSET,
OR ANY PART THEREOF, TO COMPLY WITH ANY REQUIREMENT OF LAW.
11.2. Risk of Loss. During the Construction Period and the Base Term
for any Leased Asset, the risk of loss of or decrease in the enjoyment and
beneficial use of such Leased Asset as a result of the damage or
destruction thereof by fire, the elements, casualties, thefts, riots, wars
or otherwise is assumed by the Lessee, and the Lessor shall in no event be
answerable or accountable therefor.
ARTICLE XII
POSSESSION AND USE, ETC.
12.1. Possession and Use. Each Leased Asset shall be used as
described in the applicable Lease Supplement therefor and in a manner
consistent with the standards applicable to properties of a similar nature
in the geographic area in which such Leased Asset is located or operated
and in any event not less than the standards applied by the Lessee and its
Affiliates for other comparable properties owned or leased by the Lessee
and its Affiliates.
12.2. Charges. The Lessee shall pay, or cause to be paid, all charges
and costs required in connection with the use of such Leased Asset as
contemplated by this Lease. The Lessee shall not commit or permit any waste
of such Leased Asset or any part thereof. The Lessee shall pay or cause to
be paid all charges for electricity, power, gas, oil, water, telephone,
sanitary sewer service and all other rents and utilities used in or on each
Property through the Expiration Date. The Lessee shall be entitled to
receive any credit or refund with respect to any utility charge paid by the
Lessee and the amount of any credit or refund received by the Lessor on
account of any utility charges paid by the Lessee, net of the costs and
expenses reasonably incurred by the Lessor in obtaining such credit or
refund, shall be promptly paid over to the Lessee.
12.3. Compliance with Requirements of Law and Insurance Requirements.
Subject to the terms hereof relating to permitted contests, the Lessee, at
its sole cost and expense, shall (i) comply in all material respects with
all Requirements of Law and Insurance Requirements relating to each Leased
Asset, including the construction, use, operation, maintenance, repair and
restoration thereof and the remarketing thereof pursuant to Article XXIV,
whether or not compliance therewith shall require structural or
extraordinary changes in any Improvements or interfere with the use and
enjoyment of such Leased Asset, and (ii) procure, maintain and comply in
all material respects with all material licenses, permits, orders,
approvals, consents and other authorizations required for the construction,
use, operation, maintenance, repair and restoration of the Leased Assets.
ARTICLE XIII
MAINTENANCE AND REPAIR; RETURN
13.1. Maintenance and Repair. (a) The Lessee, at its sole cost and
expense, shall maintain each Leased Asset in good condition (ordinary wear
and tear excepted) and make all necessary repairs thereto, of every kind
and nature whatsoever, whether interior or exterior, ordinary or
extraordinary, structural or nonstructural or foreseen or unforeseen, in
each case as required by all Requirements of Law and Insurance Requirements
and on a basis consistent with the operation and maintenance of properties
comparable in type and location to such Leased Asset and in no event less
than the standards applied by the Lessee and its Affiliates in the
operation and maintenance of other comparable properties owned or leased by
the Lessee and its Affiliates.
(b) The Lessor shall under no circumstances be required to build any
improvements on any Property, make any replacements, alterations or
renewals of any nature or description to any Leased Asset or make any
expenditure whatsoever in connection with this Lease (other than for
Advances made in accordance with and pursuant to the terms of this Lease
and the Construction Agency Agreement). The Lessor shall not be required to
maintain, repair or rebuild all or any part of any Leased Asset, and the
Lessee waives any right to (i) require the Lessor to maintain, repair, or
rebuild all or any part of any Leased Assets, or (ii) make repairs at the
expense of the Lessor pursuant to any Requirement of Law, Insurance
Requirement, contract, agreement, or covenant, condition or restriction in
effect at any time during the Base Term applicable to any Leased Asset.
(c) With respect to Aircraft, without limiting the generality of
Section 13.1(a), the Lessee, at its sole cost and expense, shall: (i)
maintain, service, repair, overhaul and test such Aircraft (A) so as to
keep such Aircraft in operating condition as good as when delivered to the
Lessee hereunder, ordinary wear and tear excepted, and (B) so as to keep
such Aircraft in such operating condition as may be necessary to enable the
airworthiness certification of such Aircraft to be maintained in good
standing at all times under the Federal Aviation Act of 1958, as amended,
except during such period or periods as such Aircraft is being overhauled,
maintained, serviced, repaired or tested; (ii) maintain all records, logs
and other materials required by the FAA to be maintained in respect of such
Aircraft; and (iii) promptly furnish to the Lessor such notification and
take such other action on the Lessor's behalf as may be required to be
filed by the Lessor with any governmental authority because of the Lessor's
interest in such Aircraft. The Lessee shall forthwith upon the Acquisition
Date with respect to any Aircraft, cause such Aircraft to be fully
registered and at all times thereafter to remain duly registered in the
name of the Lessee. The Lessee shall affix or cause to be affixed to each
Aircraft in the place designated by the Lessor (or, if no such place shall
have been designated, in a prominent place), labels, plates or other
markings stating that such Aircraft is owned by the Lessor. The Lessee
shall not without the prior permission of the Lessor change or remove (or
permit to be changed or removed or otherwise permit a decrease in the
visibility of) any insignia or lettering which is on any Aircraft at the
time of delivery thereof or which is thereafter placed thereon indicating
the Lessor's ownership thereof.
13.2. Return. (a) The Lessee shall, upon the expiration or earlier
termination of this Lease, vacate and surrender each Leased Asset to the
Lessor in its then-current, "AS IS" condition, subject to the Lessee's
obligations under Sections 12.3, 13.1, 14.1, 15.1, 18.1(d), 18.2 and 24.1,
unless the Lessee has purchased such Leased Asset from the Lessor as
provided herein.
(b) Upon termination of the lease of any Aircraft, the Lessee shall
have the option of having the aircraft engines installed on such Aircraft
be engines of the same model as the original Engines or substitute engines
suitable and approved by the FAA for such Aircraft, free and clear of all
Liens, encumbrances or rights of others whatsoever and having a value and
utility at least equal to, and being in as good operation and condition,
ordinary wear and tear excepted, as such original Engines. "Ordinary wear
and tear" as used herein is intended to reflect the FAA regulations
pertaining to the requirement of a periodic overhauling of aircraft
engines. Thus, in returning the Engines, the Lessee, under normal
circumstances, shall be required to overhaul them only if the total flying
hours of such Engines would require an overhaul under the FAA regulations.
Upon the return of any Aircraft, the Lessee shall (i) deliver to the Lessor
or its designee, all logs, manuals, inspection data, modification and
overhaul records or copies thereof which are applicable to such Aircraft
and are of the type that the Lessee customarily retains or is required by
law to retain with respect to its own aircraft and (ii) at its own expense,
will cause such Aircraft, if not then registered in the name of the Lessor,
to be registered in the name of the Lessor or its designee. At the time of
such return such Aircraft shall be duly certified as airworthy by the FAA.
ARTICLE XIV
MODIFICATIONS, ETC.
14.1. Modifications, Substitutions and Replacements. After the date
of Substantial Completion for any Leased Asset consisting of Property and
after the Acquisition Date for any Other Asset, the Lessee, at its sole
cost and expense, may at any time and from time to time make alterations,
renovations, improvements and additions to such Leased Asset or any part
thereof and substitutions and replacements therefor (collectively,
"Modifications"); provided, however, that: (i) except for any Modification
required to be made pursuant to a Requirement of Law (a "Required
Modification"), no Modification shall impair the value, utility or useful
life of such Leased Asset or any part thereof from that which existed
immediately prior to such Modification; (ii) the Modification shall be done
expeditiously and in a good and workmanlike manner; (iii) the Lessee shall
comply with all Requirements of Law and Insurance Requirements applicable
to the Modification, including the obtaining of all permits and
certificates of occupancy, and the structural integrity of such Leased
Asset shall not be adversely affected; (iv) subject to the terms of Article
XVI relating to permitted contests, the Lessee shall pay all costs and
expenses and shall discharge (or cause to be insured or bonded over) within
sixty (60) days after the same shall be filed (or otherwise become
effective) any Liens arising with respect to the Modification; (v) such
Modifications shall comply with Section 13.1(a); and (vi) the Lessee shall
be required to obtain the prior written approval of the Lessor, which
approval shall not be unreasonably withheld, with respect to any
alterations (other than Required Modifications and/or alterations
authorized by the Construction Agency Agreement) that shall (A) materially
affect any structural element of the Improvements to any Property or major
building system therein, or (B) cost in excess of the Threshold Amount or
(C) materially change the nature of the Improvements to any Property or the
amount of usable area therein or the utility thereof for the purposes
contemplated by the Lessor and the Lessee as of the date hereof and the
date of the Lease Supplement therefor. All Modifications shall remain part
of such Leased Asset and shall be subject to this Lease and title thereto
shall immediately vest in the Lessor; provided, however, that Modifications
that meet each of the following conditions shall not be subject to this
Lease: (x) such Modifications are not Required Modifications, (y) such
Modifications were not financed by the Lessor and (z) such Modifications
are readily removable without impairing the value, utility or remaining
useful life of the related Leased Asset. So long as no Event of Default has
occurred and is continuing, the Lessee may place upon each Leased Asset any
trade fixtures, machinery, equipment or other property belonging to the
Lessee or third parties and may remove the same at any time during the
Lease Term, subject, however, to the terms of Section 13.1; provided that
such trade fixtures, machinery, equipment or other property do not
materially impair the value, utility or remaining useful life of such
Leased Asset; and provided, further, that the Lessee shall keep and
maintain at each Property and shall not remove from such Property any
Equipment financed or otherwise paid for (directly or indirectly) by the
Lessor pursuant to this Lease. Notwithstanding the foregoing proviso, the
Lessee may substitute other equipment for such Equipment, which substituted
equipment shall have a Fair Market Sales Value and remaining useful life at
least equivalent to the Equipment for which it was substituted and, without
further act, such substituted equipment shall be Equipment hereunder and be
part of the applicable Property.
ARTICLE XV
WARRANT OF TITLE; EASEMENTS
15.1. Warrant of Title. (a) The Lessee agrees that except as
otherwise provided herein and subject to the terms of Article XVI relating
to permitted contests, the 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 Leased Asset or any Modifications or any Lien, attachment,
levy or claim with respect to the Rent, other than Permitted Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of the Lessor, expressed or implied, to
or for the performance by any contractor, mechanic, laborer, materialman,
supplier or vendor of any labor or services or for the furnishing of any
materials for any construction, alteration, addition, repair or demolition
of or to any Leased Asset or any part thereof. NOTICE IS HEREBY GIVEN THAT
THE LESSOR IS NOT AND SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE, OR TO ANYONE HOLDING
ANY LEASED ASSET OR ANY PART THEREOF THROUGH OR UNDER THE LESSEE, AND THAT
NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS
SHALL ATTACH TO OR AFFECT THE INTEREST OF THE LESSOR, IN AND TO ANY LEASED
ASSET.
15.2. Grants and Releases of Easements; Lessor's Waivers. Provided
that no Default or Event of Default shall have occurred and be continuing
and subject to the provisions of Articles XII, XIII and XIV, the Lessor
hereby consents in each instance to the following actions by the Lessee,
but at the Lessee's sole cost and expense: (a) the granting of easements,
licenses, rights-of-way and other rights and privileges in the nature of
easements reasonably necessary or desirable for the use, repair, or
maintenance of any Property as herein provided and to give effect to the
state of title in effect for such Property as set forth in the title policy
therefor; (b) the release of existing easements or other rights in the
nature of easements which are for the benefit of any Property; (c) if
required by applicable Governmental Authority in connection with the
Construction, the dedication or transfer of unimproved portions of any Land
for road, highway or other public purposes; and (d) the execution of
amendments to any covenants and restrictions affecting any Property;
provided, however, that in each case (i) such grant, release, dedication,
transfer or amendment does not materially impair the value, utility or
remaining useful life of any Property, (ii) such grant, release,
dedication, transfer or amendment is reasonably necessary in connection
with the use, maintenance, alteration or improvement of any Property, (iii)
such grant, release, dedication, transfer or amendment will not cause any
Property or any portion thereof to fail to comply in any material respect
with the provisions of this Lease or any other Operative Documents and all
Requirements of Law (including, without limitation, all applicable zoning,
planning, building and subdivision ordinances, all applicable restrictive
covenants and all applicable architectural approval requirements); (iv) all
governmental consents or approvals required prior to such grant, release,
dedication, transfer or amendment have been obtained, and all filings
required prior to such action have been made; (v) such grant, release,
dedication, transfer or amendment will not result in any down-zoning of any
Property or any portion thereof or a material reduction in the maximum
density or development rights available to any Property under all
Requirements of Law; (vi) the Lessee shall remain obligated under this
Lease and under any Operative Document executed by the Lessee consenting to
the assignment of the Lessor's interest in this Lease as security for
Advances made by it to the Lessor, in each such case in accordance with
their terms, as though such grant, release, dedication, transfer or
amendment had not been effected; and (vii) the Lessee shall pay and perform
any obligations of the Lessor under such grant, release, dedication,
transfer or amendment. The Lessor acknowledges the Lessee's right to
finance and to secure under the Uniform Commercial Code, inventory,
furnishings, furniture, equipment, machinery, leasehold improvements and
other personal property located at any Property other than Equipment, and
Lessor agrees to execute Lessor waiver forms in favor of any purchase money
seller, lessor or lender which has financed or provided or may finance or
provide in the future such items. Without limiting the effectiveness of the
foregoing, provided that no Default or Event of Default shall have occurred
and be continuing, the Lessor shall, upon the request of the Lessee, and at
the Lessee's sole cost and expense, execute and deliver any instruments
necessary or appropriate to confirm any such grant, release, dedication,
transfer or amendment to any Person permitted under this Section 15.2,
including landlord waivers with respect to any of the foregoing.
ARTICLE XVI
PERMITTED CONTESTS
16.1. Permitted Contests in Respect of Applicable Law. If, to the
extent and for so long as (a) a test, challenge, appeal or proceeding for
review of any Applicable Law relating to any Leased Asset shall be
prosecuted diligently and in good faith in appropriate proceedings by the
Lessee or (b) compliance with such Applicable Law shall have been excused
or exempted by a valid nonconforming use, variance permit, waiver,
extension or forbearance, the Lessee shall not be required to comply with
such Applicable Law but only if and so long as any such test, challenge,
appeal, proceeding, waiver, extension, forbearance or noncompliance shall
not, in the reasonable opinion of the Lessor, involve (A) any risk of
criminal liability being imposed on the Lessor, or (B) any material risk of
(1) foreclosure, forfeiture or loss of any Leased Asset or any material
part thereof, or (2) the nonpayment of Rent or (C) any substantial danger
of (1) the sale of, or the creation of any Lien (other than a Permitted
Lien) on, any part of any Leased Asset, (2) civil liability being imposed
on the Lessor, or (3) enjoinment of, or interference with, the use,
possession or disposition of any Leased Asset in any material respect. The
Lessor will not be required to join in any proceedings pursuant to this
Section 16.1 unless a provision of any Applicable Law requires that such
proceedings be brought by or in the name of the Lessor; and in that event
the Lessor will join in the proceedings or permit them or any part thereof
to be brought in its name if and so long as (i) no Default or Event of
Default has occurred and is continuing, (ii) the Lessee has not elected the
Remarketing Option, and (iii) the Lessee pays all related expenses and
indemnifies the Lessor to its reasonable satisfaction.
ARTICLE XVII
INSURANCE
17.1. Public Liability and Workers' Compensation Insurance. (a)
Property. With respect to each Property, the Lessee shall procure and carry
commercial general liability insurance for claims for bodily injury or
death sustained by persons or damage to property while on such Property and
such other public liability coverages as are ordinarily procured by the
Lessee or its Affiliates who own or operate similar properties. Such
insurance shall be on terms and in amounts that are materially no less
favorable than insurance maintained by the Lessee or its Affiliates with
respect to similar properties that they own and that are in accordance with
normal industry practice in the state in which such Property is located.
The Lessee shall, in the construction of the Improvements (including in
connection with any Modifications thereof) and the operation of any
Property, comply with, or cause the applicable contractor to comply with,
all applicable workers' compensation laws. The insurance required by this
clause (a) may be subject to such deductibles and the Lessee may
self-insure with respect to the required coverage to the extent approved in
writing by the Lessor.
(b) Aircraft. With respect to each Aircraft, the Lessee shall procure
or cause to be procured and maintain or cause to be maintained public
liability insurance with respect to such Aircraft, covering both bodily
personal injury and damage to property (as to all Persons, including
employees of the Lessee or the Lessor). Policies covering bodily injury and
property damage shall provide for coverage in an amount which is not less
than the public liability and property damage insurance usually carried
with respect to aircraft similar to such Aircraft by corporations of a
similar size engaged in the same or similar business and similarly situated
with the Lessee and its Affiliates; provided, that such insurance shall at
all times be in an amount not less than $30,000,000 per occurrence.
(c) Other Assets. With respect to any Other Asset other than
Aircraft, the Lessee will carry public liability insurance and property
damage insurance with respect to such Other Asset (i) in amounts which are
not less than the public liability and property damage insurance applicable
to similar assets owned, leased or held by the Lessee and its Affiliates
and (ii) of the types usually carried by corporations engaged in the same
or a similar business, similarly situated with the Lessee and its
Affiliates, and owning or operating similar assets in the state in which
such Other Asset is located and which cover risk of the kind customarily
insured against by such corporations. The insurance required by this clause
(c) may be subject to such deductibles and the Lessee may self-insure with
respect to the required coverage to the extent approved in writing by the
Lessor.
17.2. Hazard and Other Insurance. (a) Property. With respect to each
Property, the Lessee shall keep, or cause to be kept, such Property insured
against loss or damage by fire, earthquake, flood and other risks on terms
and in amounts that are no less favorable than insurance covering other
similar properties owned by the Lessee or its Affiliates and that are in
accordance with normal industry practice, provided that such insurance
shall at all times be in an amount not less than the greater of the Lease
Balance of such Property or the replacement cost thereof. During the
construction of any Improvements the Lessee shall also maintain or cause to
be maintained builders' risk insurance or equivalent coverages. The
insurance required by this Clause (a) may be subject to such deductibles
and the Lessee may self-insure with respect to the required coverage to the
extent approved in writing by the Lessor.
(b) Aircraft. With respect to each Aircraft, the Lessee shall procure
or cause to be procured and maintain or cause to be maintained all risk
aircraft hull insurance with respect to such Aircraft, of the type and in
substantially the amounts usually carried by corporations engaged in the
same or similar business and similarly situated with the Lessee and its
Affiliates; provided that such insurance shall at all times be in an amount
not less than the Lease Balance of such Aircraft at such time.
(c) Other AssetsWith respect to any Other Asset other than Aircraft,
the Lessee will maintain in effect physical damage insurance with respect
to such Other Asset which is of the type usually carried by corporations
engaged in the same or similar business, similarly situated with the Lessee
and its Affiliates, and owning or operating similar equipment and which
covers risk of the kind customarily insured against by such corporations,
and in substantially the amount applicable to similar assets owned, leased
or held by the Lessee and its Affiliates; provided that such insurance
shall at all times be in an amount not less than the aggregate Lease
Balance of all such Other Assets. The insurance required by this clause (c)
may be subject to such deductibles and the Lessee may self-insure with
respect to the required coverage to the extent approved in writing by the
Lessor.
17.3. Insurance Coverage. (a) Upon request the Lessee shall furnish
the Lessor with certificates showing the insurance required under Sections
17.1 and 17.2 to be in effect and naming the Lessor, the Receivable
Purchaser, the Conduits and the Liquidity Providers as additional insureds
with respect to liability coverage (excluding worker's compensation
insurance), and naming the Lessor as loss payee with respect to property
coverage and showing the mortgagee endorsement required by Section 17.3(c)
with respect to such coverage. All such insurance shall be at the sole cost
and expense of the Lessee and shall be maintained with respect to each
Leased Asset from the Acquisition Date thereof through the Expiration Date
therefor. Such certificates shall include a provision for no less than ten
(10) days' advance written notice by the insurer to the Lessor in the event
of cancellation or reduction of such insurance. In addition, the Lessee
shall cause the Lessor, the Receivable Purchaser, the Conduits and the
Liquidity Providers to be named as additional insureds under the liability
policies maintained with respect to the Construction for each Property.
(b) The Lessee agrees that the insurance policy or policies required
by Sections 17.1 and 17.2, shall include an appropriate clause pursuant to
which such policy shall provide that it will not be invalidated should the
Lessee waive, in writing, prior to a loss, any or all rights of recovery
against any party for losses covered by such policy, and that the insurance
in favor of the Lessor and the other additional insureds and their rights
under and interests in said policies shall not be invalidated or reduced by
any act or omission or negligence of the Lessee or any other Person having
any interest in any Leased Asset. The Lessee and the Lessor each hereby
waives any and all rights against the other for loss or damage to or loss
of use of its property to the extent of payments made under its property
insurance so long as such waiver shall not affect its rights to recover
under such insurance.
(c) Except as otherwise permitted by clause (d), all such insurance
shall be written by reputable insurance companies that are financially
sound and solvent and otherwise reasonably appropriate considering the
amount and type of insurance being provided by such companies. Any
insurance company selected by the Lessee which is rated in Best's Insurance
Guide or any successor thereto (or if there be none, an organization having
a similar national reputation) shall have a general policyholder rating of
"A" and a financial rating of at least "VIII" or be otherwise acceptable to
the Lessor. All insurance policies required by Section 17.2 shall include a
standard form mortgagee endorsement in favor of the Lessor.
(d) The Lessor shall not carry separate insurance concurrent in kind
or form or contributing in the event of loss with any insurance required
under this Article XVII except that the Lessor may carry separate liability
insurance so long as (i) the Lessee's insurance is designated as primary
and in no event excess or contributory to any insurance the Lessor may have
in force which would apply to a loss covered under the Lessee's policy and
(ii) each such insurance policy will not cause the Lessee's insurance
required under this Article XVII to be subject to a coinsurance exception
of any kind. Each policy maintained by the Lessee shall specifically
provide that the policy shall be considered primary insurance which shall
apply to any loss or claim before any contribution by any insurance which
the Lessor may have in force.
(e) The Lessee shall pay as they become due all premiums for the
insurance required by Section 17.1 and Section 17.2, and shall renew or
replace each policy prior to the expiration date thereof. Throughout the
Base Term for any Leased Asset, at the time each of the Lessee's insurance
policies is renewed (but in no event less frequently than once each year),
the Lessee shall deliver to the Lessor certificates of insurance evidencing
that all insurance required by this Article XVII with respect to such
Leased Asset is being maintained by the Lessee and is in effect.
(f) All insurance proceeds in respect of any property damage loss or
occurrence for which the proceeds related thereto are (i) less than or
equal to the Threshold Amount, in the absence of the occurrence and
continuance of a Default or Event of Default, shall be adjusted by and paid
to the Lessee for application toward the reconstruction, repair or
refurbishment of the applicable Leased Asset and (ii) greater than the
Threshold Amount, shall be adjusted jointly by the Lessee and the Lessor
(unless a Default or Event of Default has occurred and is continuing, in
which case such proceeds shall be adjusted solely by the Lessor) and held
by the Lessor for application in accordance with Article XVIII hereof.
ARTICLE XVIII
CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS
18.1. Casualty and Condemnation. (a) Subject to the provisions of
this Article XVIII, if all or a portion of any Leased Asset is damaged or
destroyed in whole or in part by a Casualty or is the subject of a
Condemnation, then (i) in the case of a Casualty where the cost of
restoration of the affected Leased Asset in the reasonable judgment of the
Lessor is (x) less than or equal to the Threshold Amount, any insurance
proceeds payable with respect to such Casualty shall be paid directly to
the Lessee, or if received by the Lessor, shall be paid over to the Lessee
for the reconstruction, refurbishment and repair of such Leased Asset, (y)
greater than the Threshold Amount, any insurance proceeds payable with
respect to such Casualty shall be paid to the Lessor but may be obtained by
the Lessee and used for the purpose of reconstructing, refurbishing and
repairing the affected Leased Asset upon submission to the Lessor of a
Responsible Employee's Certificate to the effect that such Leased Asset can
be fully restored to the condition required under this Lease prior to the
end of the Base Term for such Leased Asset (after giving effect to any
extensions of such Base Term) and as to the cost of such restoration
(accompanied by, in the case of a Leased Asset consisting of Property, an
Architect's certificate as to the foregoing matters) plus a statement as to
the Lessee's affirmative ability to finance such restoration, and upon
receipt of such certificate(s) in form reasonably satisfactory to the
Lessor such amounts shall be made available to the Lessee in the manner
contemplated by the Construction Agency Agreement with respect to
Construction and if the foregoing certificate(s) are not delivered to the
Lessor such proceeds shall be applied toward the payment of the Lease
Balance for such Leased Asset and (ii) in the case of a Condemnation such
award or compensation shall be paid to the Lessor to be applied in its
reasonable discretion to the restoration of the affected Leased Asset or
toward the payment of the Lease Balance; provided, however, that if a
Default or Event of Default shall have occurred and be continuing, such
award, compensation or insurance proceeds shall be paid directly to the
Lessor or, if received by the Lessee, shall be held in trust for the
Lessor, and shall be paid over by the Lessee to the Lessor. If, contrary to
such provision, any such award, compensation or insurance proceeds are paid
to the Lessee rather than to the Lessor, the Lessee hereby agrees to hold
the same in trust for the benefit of the Lessor and to transfer promptly
any such payment to the Lessor. All amounts held by the Lessor when a
Default or Event of Default exists hereunder on account of any award,
compensation or insurance proceeds either paid directly to the Lessor or
turned over to the Lessor shall in its sole discretion either be (i) paid
to the Lessee for the repair of damage caused by such Casualty or
Condemnation in accordance with clause (d) of this Section 18.1, or (ii)
(A) if a Default exits, held by the Lessor until such Default is cured or
becomes an Event of Default or (B) if an Event of Default exists, applied
toward the payment of the Lease Balance of the affected Leased Asset.
(b) The 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 the Lessee's reasonable request, and at the
Lessee's sole cost and expense, the Lessor shall participate in any such
proceeding, action, negotiation, prosecution or adjustment. The Lessor and
the Lessee agree that this Lease shall control the rights of the Lessor and
the Lessee in and to any such award, compensation or insurance payment.
(c) If the Lessor or the Lessee shall receive notice of a Casualty or
of an actual, pending or threatened Condemnation of any Leased Asset or any
interest therein, the Lessor or the Lessee, as the case may be, shall give
notice thereof to the other promptly after the receipt of such notice.
(d) If pursuant to this Section 18.1 and Section 19.1 this Lease
shall continue in full force and effect following a Casualty or
Condemnation with respect to any Leased Asset, the Lessee shall, at its
sole cost and expense (and, without limitation, if any award, compensation
or insurance payment is not sufficient to restore such Leased Asset in
accordance with this paragraph, the Lessee shall pay the shortfall),
promptly and diligently repair any damage to such Leased Asset caused by
such Casualty or Condemnation in conformity with the requirements of
Sections 13.1 and 14.1 using, in the case of any Property, the as-built
plans and specifications for such Property (as modified to give effect to
any subsequent Modifications, any Condemnation affecting such Property and
all applicable Requirements of Law) so as to restore such Leased Asset to
at least the same condition, operation, function and value as existed
immediately prior to such Casualty or Condemnation with such Modification
as the Lessee may elect in accordance with Section 14.1. Upon completion of
such restoration, the Lessee shall furnish the Lessor a Responsible
Employee's Certificate and, in the case of any Property, an Architect's
certificate confirming that such restoration has been completed pursuant to
this Lease.
(e) In no event shall a Casualty or Condemnation affect the Lessee's
obligations to pay Rent pursuant to Section 7.1 or to perform its
obligations and pay any amounts due on any Expiration Date or pursuant to
Articles XXII and XXV.
(f) Any Excess Proceeds received by the Lessor in respect of a
Casualty or Condemnation affecting any Leased Asset shall be turned over to
the Lessee upon the full payment of the Lease Balance for such Leased Asset
and all other amounts then due and payable hereunder.
18.2. Environmental Matters. Promptly upon the Lessee's knowledge or
the existence of an Environmental Violation that could materially affect
the value of any Property, the Lessee shall notify the Lessor in writing of
such Environmental Violation. If the cost of remediation of such
Environmental Violation would not exceed the limits set forth in Section
19.1, the Lessee will promptly and diligently undertake any response,
cleanup, remedial or other action required by Applicable Law of the Lessor
or the Lessee to remove, cleanup or mediate such Environmental Violation of
the Lessee's sole cost and expense. If the cost of such remediation would
exceed the limits set forth in Section 19.1, the Lessor may elect to
terminate the Lease with respect to such Property pursuant to Section 19.1
or, alternatively, the Lessor may request that the Lessee undertake any
response, cleanup, remedial or other action required by Applicable Law of
the Lessor or Lessee to remove, clean up or remediate the Environmental
Violation in accordance with the terms of Section 12.3, at the Lessee's
sole cost and expense. If the Lessor does not deliver a Termination Notice
with respect to such Property pursuant to Section 19.1, then the Lessee
shall undertake such response, cleanup, remedial or other action, and the
Lessee shall, upon completion of remedial action by the Lessee, cause to be
prepared by an environmental consultant reasonably acceptable to the Lessor
a report describing the Environmental Violation and the actions taken by
the Lessee (or its agents) in response to such Environmental Violation,
along with a statement by the Lessee that the Environmental Violation has
been remedied to the satisfaction of the Government Authority exercising
jurisdiction, or in compliance in all material respects with applicable
Environmental Law. Nothing in this Section shall reduce or limit the
Lessee's obligations under the indemnity provisions hereof.
18.3. Notice of Environmental Matters. Promptly, but in any event
within thirty (30) days from the date the Lessee has actual knowledge
thereof, the Lessee shall provide to the 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. All
such notices shall describe in reasonable detail the nature of the claim,
action or proceeding and the Lessee's proposed response thereto. In
addition, the Lessee shall provide to the Lessor, within thirty (30) days
of receipt, copies of all written communications with any Governmental
Authority relating to any Environmental Violation in connection with any
Property. The Lessee shall also promptly provide such detailed reports of
any such environmental claims as may reasonably be requested by the Lessor.
In the event that the Lessor receives 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, the Lessor shall
promptly give notice thereof to the Lessee.
ARTICLE XIX
TERMINATION OF LEASE
19.1. Mandatory Termination upon Certain Events. If, with respect to
any Property, any of:
(i) a Significant Condemnation occurs; or
(ii) an Environmental Violation occurs or is discovered the
cost of remediation of which for the affected Property would exceed
20% of the then effective Lease Balance for such Property, but in no
event less than $5,000,000;
and the Lessor shall have given written notice to the Lessee that
this Lease as to the affected Property is to be terminated as a consequence
of the occurrence of such an event (a "Termination Notice"), then, the
Lessee shall be obligated to purchase the Lessor's interest in such
Property on or prior to the date occurring one hundred eighty (180) days
after the date of the Lessee's receipt of the Termination Notice by paying
the Lessor an amount equal to the Lease Balance therefor on such date of
payment; provided, however, that the Lessor shall not give such notice with
respect to any Environmental Violation if the Lessee (x) promptly submits
an approved corrective action plan for the remediation of such
Environmental Violation to the Lessor, (y) provides reasonable security to
the Lessor for the cost of the such remediation and (z) diligently pursues
such remediation in accordance with such plan.
19.2. Termination Procedures. On the date of the payment by the
Lessee of the Lease Balance for the affected Property in accordance with
the Termination Notice in accordance with Section 19.1 of this Lease, this
Lease shall terminate and, the provisions of Section 25.1 shall be
applicable.
ARTICLE XX
EVENTS OF DEFAULT; REMEDIES
20.1. Events of Default. The occurrence of any one or more of the
following events (whether such event shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in
compliance with any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body) shall
constitute an "Event of Default":
(a) the Lessee shall fail to make payment of any Base Rent,
Supplemental Rent, Purchase Option Price, Lease Balance or any other
amount payable hereunder within three (3) Business Days after the due
date therefor, including, without limitation, amounts due pursuant to
Section 19.1, 22.1 or 22.2 or Article XXIV;
(b) the Lessee shall fail to maintain insurance as required by
Article XVII of this Lease;
(c) the Lessee shall fail to observe or perform any term,
covenant or condition of the Lessee under this Lease or the other
Operative Documents to which it is party other than those described
in Section 20.1(a) or (b) hereof, and, in each such case, such
failure shall have continued for thirty (30) days after the earlier
of (i) delivery to the Lessee of written notice thereof from the
Lessor or (ii) a Responsible Employee of the Lessee shall have
knowledge that such failure, if not cured, will constitute an Event
of Default;
(d) any representation or warranty made by the Lessee in any of
the Operative Documents to which it is a party shall prove to have
been inaccurate in any material respect at the time made;
(e) any representation or warranty made by the Guarantor in any
of the Operative Documents to which it is a party shall prove to have
been inaccurate in any material respect at the time made;
(f) the Guarantor or any Significant Subsidiary shall commence
a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any such
relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors,
or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be commenced
against the Guarantor or any Significant Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period
of 60 days; or an order for relief shall be entered against the
Guarantor or any Significant Subsidiary under the federal bankruptcy
laws as now or hereafter in effect;
(h) an event of default (as defined therein) under the Credit
Agreement occurs, unless (i) such event of default has been waived by
the requisite parties to the Credit Agreement and (ii) the Lessor and
the Liquidity Providers shall have received a pro rata share (based
on the respective commitments of the Lessor, Liquidity Providers and
parties to the Credit Agreement) of any consideration given by the
Guarantor or its Affiliates in connection with obtaining any such
waiver;
(i) a Construction Agency Agreement Event of Default shall
occur, or an Event of Default (as defined therein) shall occur under
any other Operative Document;
(j) the Lessee or the Guarantor shall directly or indirectly
contest the validity of any Operative Document in any manner in any
court of competent jurisdiction or any lien granted by any Operative
Document, or shall repudiate, or purport to discontinue or terminate,
the Construction Agency Agreement, this Lease or the Guaranty or the
Construction Agency Agreement, this Lease or the Guaranty shall cease
to be a legal, valid and binding obligation or shall cease to be in
full force and effect for any reason; or
(k) the Guarantor shall fail to observe or perform any term,
covenant or condition of, or incorporated by reference in, the
Guaranty beyond any grace period applicable thereto (it being agreed
that the Guarantor's failure to perform any obligation of the Lessee
or any covenant incorporated in the Guaranty shall not constitute an
Event of Default until any grace period applicable to the Lessee
under the Operative Documents or to the Guarantor under the Credit
Agreement, as the case may be, shall have expired).
20.2. Remedies. Upon the occurrence of any Event of Default and at
any time thereafter, the Lessor may, so long as such Event of Default is
continuing, do one or more of the following as the Lessor in its sole
discretion shall determine, without limiting any other right or remedy the
Lessor may have on account of such Event of Default (including, without
limitation, the obligation of the Lessee to purchase the Leased Assets as
set forth in Section 22.3):
(a) The Lessor may, by notice to the Lessee terminate this
Lease as of the date specified in such notice; provided, however, (i)
no reletting, reentry or taking of possession of any Leased Asset or
all of the Leased Assets (or any portion thereof) by the Lessor will
be construed as an election on the Lessor's part to terminate this
Lease unless a written notice of such intention is given to the
Lessee, (ii) notwithstanding any reletting, reentry or taking of
possession, the Lessor may at any time thereafter elect to terminate
this Lease for a continuing Event of Default and (iii) no act or
thing done by the Lessor or any of its agents, representatives or
employees and no agreement accepting a surrender of the Leased Asset
shall be valid unless the same be made in writing and executed by the
Lessor;
(b) The Lessor may (i) demand that the Lessee, and the Lessee
shall upon the written demand of the Lessor, return any Leased Asset
promptly to the Lessor in the manner and condition required by, and
otherwise in accordance with all of the provisions of Section 13.2
hereof as if the Leased Asset were being returned at the end of the
Base Term, and the Lessor shall not be liable for the reimbursement
of the Lessee for any costs and expenses incurred by the Lessee in
connection therewith and (ii) without prejudice to any other remedy
which the Lessor may have for possession of any Leased Asset, and to
the extent and in the manner permitted by Applicable Law, enter upon
such Leased Asset and take immediate possession of (to the exclusion
of the Lessee) such Leased Asset or any part thereof and expel or
remove the Lessee and any other Person who may be occupying such
Leased Asset, by summary proceedings or otherwise, all without
liability to the Lessee for or by reason of such entry or taking of
possession, whether for the restoration of damage to property caused
by such taking or otherwise and, in addition to the Lessor's other
damages, the Lessee shall be responsible for all costs and expenses
incurred by the Lessor in connection with any reletting, including,
without limitation, reasonable brokers' fees and all reasonable costs
of any alterations or repairs made by the Lessor;
(c) The Lessor may (i) sell all or any part of one or more
Leased Assets at public sale free and clear of any rights of the
Lessee and without any duty to account to the Lessee with respect to
such action or inaction or any proceeds in which event the Lessee's
obligation to pay Capitalized Interest or Base Rent hereunder for
periods commencing after the date of such sale shall be terminated or
proportionately reduced, as the case may be; and (ii) if the Lessor
shall so elect, demand that the Lessee pay to the Lessor, and the
Lessee shall pay to the Lessor, on the date of such sale, as
liquidated damages for loss of a bargain and not as a penalty (the
parties agreeing that the Lessor's actual damages would be difficult
to predict, but the aforementioned liquidated damages represent a
reasonable approximation of such amount), an amount equal to (A) the
excess, if any, of (1) the Lease Balance calculated as of the date of
such sale (including all Rent due and unpaid to and including such
date), over (2) the net proceeds of such sale (that is, after
deducting all costs and expenses incurred by the Lessor incident to
such conveyance, including, without limitation, repossession costs,
brokerage commissions, prorations, transfer taxes, reasonable fees
and expenses for counsel, title insurance fees, survey costs,
recording fees, and any repair costs); plus (B) interest at the
Overdue Rate on the foregoing amount from such date until the date of
payment;
(d) The Lessor may, at its option, elect not to terminate this
Lease and continue to collect all Base Rent, Supplemental Rent, and
all other amounts due the Lessor (together with all costs of
collection) and enforce the Lessee's obligations under this Lease as
and when the same become due, or are to be performed, and at the
option of the Lessor, upon any abandonment of any Leased Asset by the
Lessee or re-entry of same by the Lessor, the Lessor may, in its sole
and absolute discretion, elect not to terminate this Lease and may
make the necessary repairs in order to relet any Leased Asset, and
relet any Leased Asset or any part thereof for such term or terms
(which may be for a term extending beyond the Base Term of this
Lease) and at such rental or rentals and upon such other terms and
conditions as the Lessor in its reasonable discretion may deem
advisable; and upon each such reletting all rentals actually received
by the Lessor from such reletting shall be applied to the Lessee's
obligations hereunder and the other Operative Documents in such
order, proportion and priority as the Lessor may elect in the
Lessor's sole and absolute discretion. If such rentals received from
such reletting during any period are less than the Rent with respect
to such Leased Asset to be paid during that period by the Lessee
hereunder, the Lessee shall pay any deficiency, as calculated by the
Lessor, to the Lessor on the next Payment Date;
(e) Unless all of the Leased Assets have been sold in their
entirety, the Lessor may, whether or not the Lessor shall have
exercised or shall thereafter at any time exercise any of its rights
under paragraph (b), (c) or (d) of this Section 20.2 with respect to
the Leased Assets or portions thereof, demand, by written notice to
the Lessee specifying a date not earlier than ten (10) days after the
date of such notice, that the Lessee purchase, on such date, all
unsold Leased Assets (or the remaining portion thereof) in accordance
with the provisions of Article XXII; provided, however, that no such
written notice shall be required upon the occurrence of any Event of
Default in clause (f) or (g) of Section 20.1;
(f) The Lessor may exercise any other right or remedy that may
be available to it under Applicable Law, or proceed by appropriate
court action (legal or equitable) to enforce the terms hereof or to
recover damages for the breach hereof. Separate suits may be brought
to collect any such damages for any period(s), and such suits shall
not in any manner prejudice the Lessor's right to collect any such
damages for any subsequent period(s), or the Lessor may defer any
such right to suit until after the expiration of the Base Term, in
which event such right to suit shall be deemed not to have accrued
until the expiration of the Base Term;
(g) To the maximum extent permitted by Applicable Law, the
Lessee hereby waives the benefit of any appraisement, valuation,
stay, extension, reinstatement and redemption laws now or hereafter
in force and all rights of marshalling in the event of any sale of
any Leased Asset or any interest therein;
(h) The Lessor shall be entitled to enforce payment of the
indebtedness and performance of the obligations secured hereby and to
exercise all rights and powers under this instrument or under any of
the other Operative Documents or other agreement or any laws now or
hereafter in force, notwithstanding some or all of the obligations
secured hereby may now or hereafter be otherwise secured, whether by
mortgage, security agreement, pledge, lien, assignment or otherwise.
Neither the acceptance of this instrument nor its enforcement, shall
prejudice or in any manner affect the Lessor's right to realize upon
or enforce any other security now or hereafter held by the Lessor, it
being agreed that the Lessor shall be entitled to enforce this
instrument and any other security now or hereafter held by the Lessor
in such order and manner as the Lessor may determine in its absolute
discretion. No remedy herein conferred upon or reserved to the Lessor
is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. Every power or remedy
given by any of the Operative Documents to the Lessor or to which it
may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed
expedient by the Lessor. In no event shall the Lessor, in the
exercise of the remedies provided in this instrument (including,
without limitation, in connection with the assignment of rents to
Lessor, or the appointment of a receiver and the entry of such
receiver on to all or any part of the Leased Assets), be deemed a
"mortgagee in possession," and the Lessor shall not in any way be
made liable for any act, either of commission or omission, in
connection with the exercise of such remedies; or
(i) An action of mortgage foreclosure as now provided or
hereafter prescribed by law, may forthwith be commenced and
prosecuted to judgment, execution and sale, for the collection of the
whole amount of such Lease Balance, together with all fees, costs and
expenses of such proceedings, including a reasonable attorney's fees.
And all errors in such proceedings, together with any stays of or
exemptions from execution, or extensions of time of payment, which
may be given by any Applicable Law now in force, or which may be
enacted hereafter, are hereby forever waived and released.
If, pursuant to the exercise by the Lessor of its remedies pursuant to
this Section 20.2, the Lease Balance, all other amounts due and owing
from the Lessee under this Lease and the other Operative Documents have
been paid in full, the Lessor shall remit to the Lessee any excess
amounts received by the Lessor.
20.3. Waiver of Certain Rights. If this Lease shall be terminated
pursuant to Section 20.2, the Lessee waives, to the fullest extent
permitted by law, (a) any notice of re-entry or the institution of legal
proceedings to obtain re-entry or possession; (b) any right of redemption,
re-entry or repossession; (c) the benefit of any laws now or hereafter in
force exempting property from liability for rent or for debt or limiting
the Lessor with respect to the election of remedies; and (d) any other
rights which might otherwise limit or modify any of the Lessor's rights or
remedies under this Article XX.
20.4. Power of Sale and Foreclosure. In addition to any other rights
herein, Lessor shall upon the occurrence of any Event of Default have the
option to exercise its rights under each Mortgage executed in connection
herewith, pursuant to which the trustee thereunder has the POWER OF SALE.
ARTICLE XXI
ASSIGNMENT
21.1. Assignment by Lessor. The Lessor may not assign, sell or
transfer all or any part of its rights and obligations hereunder or under
the other Operative Documents or the Leased Assets; provided, however, that
(i) the Lessor may sell Purchaser Interests to the Receivable Purchaser and
(ii) with the consent of the Lessee, the Conduits and the Liquidity
Providers, which consent shall not be unreasonably withheld, the Lessor may
assign, sell or transfer all or any part of such rights and obligations or
the Leased Assets to any financial institution, provided that the Lessor is
not thereby released from its obligations hereunder.
21.2. Assignment by Lessee. The Lessee may not assign this Lease or
any of its rights or obligations hereunder in whole or in part to any
Person without the consent of the Lessor; provided, however, that the
Lessee may assign all (and not less than all) of its rights hereunder
without such consent to one or more of its Affiliates so long as the Lessee
remains fully liable for all of the obligations of the "Lessee" hereunder
and under the other Operative Documents.
ARTICLE XXII
PURCHASE PROVISIONS
22.1. Purchase Option. Provided that the Lessee shall not have given
notice of its intention to exercise the Remarketing Option, the Lessee
shall have the option (exercisable by giving the Lessor irrevocable written
notice (the "Purchase Notice") of the Lessee's election to exercise such
option) to purchase all of the Leased Assets under any Lease Supplement
(unless provisions with respect to joinder of purchase options for the
Leased Assets under more than one Lease Supplement are set forth in a Lease
Supplement, in which case such exercise must comply with such provisions)
on any Scheduled Payment Date specified in such Purchase Notice at a price
equal to the Lease Balance for such Leased Assets (the "Purchase Option
Price"). The Lessee shall deliver the Purchase Notice to the Lessor not
less than thirty (30) days prior to such purchase. If the Lessee exercises
its option to purchase one or more Leased Assets pursuant to this Section
22.1 (the "Purchase Option"), the Lessor shall transfer to the Lessee or
its designee all of the Lessor's right, title and interest in and to the
applicable Leased Assets as of the date specified in the Purchase Notice
upon receipt of the Purchase Option Price in accordance with Section
25.1(a). The Lessee may designate, in a notice given to the Lessor not less
than ten (10) Business Days prior to the closing of such purchases (time
being of the essence), the transferee or transferees to whom the conveyance
shall be made (if other than to the Lessee), in which case such conveyance
shall (subject to the terms and conditions set forth herein) be made to
such designee; provided, however, that such designation of a transferee or
transferees shall not cause the Lessee to be released, fully or partially,
from any of its obligations under this Lease, including, without
limitation, the obligation to pay the Lessor the Lease Balance on the
applicable Expiration Date.
22.2. Acceleration of Purchase Obligation. (a) The Lessee shall be
obligated to purchase for an amount equal to the Lease Balance the Lessor's
interest in the Leased Assets (notwithstanding any prior election to
exercise its Purchase Option pursuant to Section 22.1) (i) automatically
and without notice upon the occurrence of any Event of Default specified in
clause (f) or (g) of Section 20.1 and (ii) as provided for at Section
20.2(e) immediately upon written demand of the Lessor upon the occurrence
of any other Event of Default.
(b) The Lessee shall be obligated to purchase the Lessor's interest
in the Leased Assets for an amount equal to the Lease Balance immediately
upon written demand of the Lessor at any time during the term when (i)
subject to Section 21.1, the Lessor ceases to have title as contemplated by
Section 15.1 or (ii) any related Security Document (other than this Lease)
to which the Lessee is a party shall cease to be in full force and effect,
or shall cease to give the Lessor the Liens, rights, powers and privileges
purported to be created thereby.
(c) Any purchase under this Section 22.2 shall be in accordance with
Section 25.1(a).
22.3. Purchase of Unimproved Land. Provided that no Default or Event
of Default has occurred and is continuing, the Lessee shall have the option
(exercisable by giving the Lessor irrevocable written notice of the
Lessee's exercise of such option) to purchase any unimproved portion of any
Land (and any related easements for utilities and access to be specified at
such time) not necessary or desirable for operations of the Improvements
constructed or to be constructed on such Land on any Scheduled Payment Date
specified in such notice at a price equal to the Fair Market Sales Value,
as determined by an Appraisal, of such unimproved portion and such
easements. The Lessee shall give such notice to the Lessor not less than
thirty (30) days prior to such purchase. If the Lessee exercises its option
pursuant to this Section 22.3, the Lessor shall transfer to the Lessee or
its designee all of the Lessor's right, title and interest in and to the
applicable unimproved portion of Land and grant the related easements as of
the date specified in the Lessee's notice under procedures analogous to
those set forth in Section 25.1(a). The purchase price paid by the Lessee
shall be applied to reduce the Lease Balance for the related Property.
ARTICLE XXIII
RENEWAL TERMS
23.1. Renewal. (a) Subject to the conditions set forth herein, and
unless otherwise specified in the Lease Supplement applicable to any Leased
Assets, the Lessee shall have the option (the "Renewal Option"), to extend
the Base Term for such Leased Assets for up to three (3) additional
one-year periods (each, a "Renewal Term"), with each such Renewal Term to
commence on the first day following the Expiration Date then in effect. The
Renewal Option with respect to each Renewal Term shall automatically be
effective upon satisfaction of each of the following conditions:
(A) the Lessor and each Liquidity Provider shall have consented
to the renewal of the Lease after receipt of Lessee's request
therefor delivered to the Lessor and the Liquidity Agent not later
than ninety (90) days prior to each of the fourth, fifth and sixth
anniversaries of the Closing Date,
(B) (i) no Event of Default under this Lease shall have
occurred and be continuing, and (ii) by exercise of such Renewal
Option, the Lessee shall be deemed to represent to the Lessor as to
the matters set forth in clause (i) of this condition (B), and
(C) the Lessee shall not have exercised the Remarketing Option
or the Purchase Option for such Leased Assets under this Lease.
(b) Each extension of this Lease for a Renewal Term shall be subject
to this Lease. Each Renewal Term shall cause the remaining Base Term of
relevant Leased Assets to be extended by one additional year from the
Expiration Date in effect immediately prior to such extension; thus, if
this Lease is extended on each of the anniversaries referred to above, the
term of this Lease shall be for ten (10) years; provided, however, that in
no event shall the Base Term as extended by any Renewal Term extend beyond
the date identified in the applicable Lease Supplement.
(c) In the event that the Lessor and each Liquidity Provider have not
agreed to extend this Lease at least fifteen (15) days prior to each
applicable anniversary date, the Lessee's request for extension shall be
deemed to have been rejected.
ARTICLE XXIV
REMARKETING OPTION
24.1. Option to Remarket. Subject to the fulfillment of each of the
conditions set forth in this Section 24.1, the Lessee shall have the option
(the "Remarketing Option") to market and complete the sale of Lessor's
interest in one or more Leased Assets for the Lessor.
The Lessee's effective exercise and consummation of the Remarketing
Option as to one or more Leased Assets shall be subject to the due and
timely fulfillment of each of the following provisions as to such Leased
Assets as of the dates set forth below.
(a) Not later than six (6) months prior to the Expiration Date,
the Lessee shall give to the Lessor written notice of the Lessee's
exercise of the Remarketing Option under this Lease, which exercise
shall be irrevocable.
(b) Not later than one hundred twenty (120) days prior to the
Expiration Date, the Lessee shall deliver to the Lessor an
Environmental Audit for each Property included in such Leased Assets.
Such Environmental Audit shall be prepared by an environmental
consultant selected by the Lessee and approved in advance by the
Lessor and shall contain conclusions reasonably satisfactory to the
Lessor as to the environmental status of such Property. If any such
Environmental Audit indicates any exceptions, the Lessee shall have
also delivered a Phase Two environmental assessment by such
environmental consultant prior to the Expiration Date showing the
completion of the remedying of such exceptions in compliance with
Applicable Law.
(c) On the date of the Lessee's notice to the Lessor of the
Lessee's exercise of the Remarketing Option, no Event of Default
shall exist, and on the Expiration Date, no Event of Default or
Default shall exist. Any Permitted Liens (other than Lessor Liens) on
each Leased Asset that were contested by the Lessee shall have been
removed on or before the Expiration Date.
(d) The Improvements on each Property included in such Leased
Assets shall have been constructed in accordance with the Plans and
Specifications and shall have achieved Substantial Completion on or
before the date of the Lessee's notice to the Lessor of the Lessee's
exercise of the Remarketing Option. The Lessee shall have completed
in all material respects all Modifications, restoration and
rebuilding of such Leased Assets pursuant to Section 14.1 and 18.1
(as the case may be) and shall have fulfilled in all material
respects all of the conditions and requirements in connection
therewith pursuant to said Sections, in each case by the date of the
Lessee's notice to the Lessor of the Lessee's exercise of the
Remarketing Option (time being of the essence), regardless of whether
the same shall be within the Lessee's control. The Lessee shall have
also paid the cost of all Modifications commenced prior to the
Expiration Date. The Lessee shall not have been excused pursuant to
Section 16.1 from complying with any Applicable Law that involved the
extension of the ultimate imposition of such Applicable Law beyond
the last day of the Base Term.
(e) During the Marketing Period, the Lessee shall use best
efforts, in such manner as the Lessee shall reasonably determine, to
sell the Lessor's interest in the Leased Assets and will attempt to
obtain the highest purchase price therefor and for not less than the
Fair Market Sales Value of all of the Leased Assets. The Lessee will
be responsible for hiring brokers and making the Leased Assets
available for inspection by prospective purchasers. The Lessee shall
promptly upon request permit inspection of the Leased Assets and any
maintenance records relating to the Leased Assets by the Lessor and
any potential purchasers, and shall otherwise do all things necessary
to sell and deliver possession of the Leased Assets to any purchaser.
All such marketing of the Leased Assets shall be at the Lessee's sole
expense. The Lessee's agency under this clause shall, for the first
three months of the Marketing Period, be on an exclusive basis. In
the event the Lessee is unable to procure during such period a bona
fide bid from a non-Affiliated Person with demonstrable financial
capacity to consummate such bid for any Leased Asset, from and after
such third month, the agency hereunder shall be on a non-exclusive
basis.
(f) The Lessee shall submit all bids to the Lessor and the
Lessor will have the right to review the same and the right to submit
any one or more bids. All bids shall be on an all-cash basis unless
the Lessor shall otherwise agree in its sole discretion. No such
purchaser shall be the Lessee or an Affiliate of the Lessee. The
written offer must specify the Expiration Date as the closing date
unless the Lessor shall otherwise agree in its sole discretion.
(g) In connection with any such sale of Lessor's interest in
the Leased Assets, the Lessee will provide to the purchaser all
customary "seller's" indemnities, representations and warranties
regarding absence of Liens (except Lessor Liens) and the condition of
such Leased Assets, including, without limitation, an environmental
indemnity for any Property to the extent the same are required by the
purchaser. The Lessee shall have obtained, at its cost and expense,
all required governmental and regulatory consents and approvals and
shall have made all filings as required by Applicable Law in order to
carry out and complete the transfer of the Leased Assets. As to the
Lessor, any such sale of Lessor's interest in the Leased Assets shall
be made on an "as is, with all faults" basis without representation
or warranty by the Lessor other than the absence of Lessor Liens. Any
agreement as to such sale shall be made subject to the Lessor's
rights hereunder.
(h) The Lessee shall pay directly, and not from the sale
proceeds, all prorations, credits, costs and expenses of the sale of
Lessor's interest in the Leased Assets, whether incurred by the
Lessor or the Lessee, including without limitation, the cost of all
title insurance, surveys, environmental reports, appraisals, transfer
taxes, the Lessor's reasonable attorneys' fees, the Lessee's
attorneys' fees, commissions, escrow fees, recording fees, and all
applicable documentary and other transfer taxes.
(i) The Lessee shall pay to the Lessor on or prior to the
Expiration Date (or to such other Person as the Lessor shall notify
the Lessee in writing) an amount equal to the Contingent Rental
Adjustment for such Leased Assets, plus all Base Rent and all other
amounts hereunder which have accrued or will accrue with respect
thereto prior to or as of the Expiration Date, in the type of funds
specified in Section 7.5 hereof.
(j) The purchase of Lessor's interest in such Leased Assets
shall be consummated on the Expiration Date and the Gross Proceeds of
the sale of the Leased Assets shall be paid directly to the Lessor.
The Lessor shall remit to the Lessee from Gross Proceeds the
documented expenses incurred by the Lessee under clause (h) hereof in
connection with such sale. If the remaining Gross Proceeds plus the
aggregate Contingent Rental Adjustment received by Lessor, exceeds
the Lease Balance for such Leased Assets as of such date, then the
excess shall be paid to the Lessee on the Expiration Date.
Except as provided in the next sentence hereof or as may be otherwise
provided in a Lease Supplement, if one or more of the foregoing provisions
shall not be fulfilled as of the date set forth above with respect to the
Leased Assets under any Lease Supplement, then the Lessor shall declare by
written notice to the Lessee the Remarketing Option to be null and void
(whether or not it has been theretofore exercised by the Lessee), in which
event all of the Lessee's rights under this Section 24.1 shall immediately
terminate and the Lessee shall be obligated to purchase Lessor's interest
in such Leased Assets as if it had exercised its option under Section 22.1
on the Expiration Date. Notwithstanding the foregoing, the Lessee shall not
be required to purchase Lessor's interest in such Leased Assets pursuant to
the preceding sentence if Lessor's interest in such Leased Assets is not
sold on or prior to the Expiration Date and the Lessee has otherwise
fulfilled all of its obligations under clauses (a) through (i) hereof.
Except as expressly set forth herein, the Lessee shall have no right,
power or authority to bind the Lessor in connection with any proposed sale
of Lessor's interest in the any Leased Asset.
In the event that the sale of any Leased Asset is not consummated on
the Expiration Date, but such sale is consummated any time thereafter, the
Lessor shall remit to the Lessee, promptly after the consummation of the
sale of the such Leased Asset, any excess remaining after deducting the
then outstanding Lease Balance plus the Imputed Equity Return thereon
accruing from and after the Expiration Date from the Gross Proceeds.
24.2. Certain Obligations Continue. During the Marketing Period, the
obligation of the Lessee to pay Rent shall continue undiminished until
payment in full to the Lessor of the Contingent Rental Adjustment and all
other amounts due to the Lessor with respect to the Leased Assets under
each Lease Supplement under the Operative Documents to which the Lessee is
a party. The Lessor shall have the right, but shall be under no duty, to
solicit bids, to inquire into the efforts of the Lessee to obtain bids or
otherwise to take action in connection with any such sale of Lessor's
interest in the Leased Assets, other than as expressly provided in this
Article XXIV.
ARTICLE XXV
PROCEDURES RELATING TO PURCHASE OR REMARKETING
25.1. Provisions Relating to the Purchase and Conveyance Upon
Remarketing. (a) In connection with the Lessee's purchase of the Leased
Assets under any Lease Supplement pursuant to Section 22.1 or 22.2, or in
connection with a purchase of Lessor's interest in any Leased Asset under
Article XIX or the payment of all amounts due under Section 5.1 of the
Construction Agency Agreement:
(i) the Lessee shall pay the amounts set forth in Section 22.1,
Section 22.2, Article XIX, Section 5.1 of the Construction Agency
Agreement, as applicable, together with all accrued Rent relating to
such Leased Assets and any other amount then due and payable by the
Lessee to the Lessor under this Lease or the other Operative
Documents;
(ii) the Lessor shall execute and deliver to the Lessee (or to
the Lessee's designee) at the Lessee's cost and expense a special
warranty deed with respect to the Improvements, a special warranty
deed or release of Ground Lease with respect to the Land, a xxxx of
sale with respect to the Equipment or any other Leased Asset and an
assignment of the Lessor's entire interest in the Leased Assets being
sold (which shall include an assignment of all of the Lessor's right,
title and interest in and to any Net Proceeds not previously received
by the Lessor and, if applicable, a termination notice pursuant to
the Ground Lease, in each case in recordable form and otherwise in
conformity with local custom and free and clear of the Lien of the
Mortgage and any Lessor Liens attributable to the Lessor;
(iii) the Leased Assets being sold shall be conveyed to the
Lessee "AS IS" and in their then present physical condition; and
(iv) the Lessor shall execute and deliver to Lessee and the
Lessee's title insurance company an affidavit as to the absence of
Lessor Liens.
(b) If the Lessee properly exercises the Remarketing Option with
respect to the Leased Assets under any Lease Supplement, then the Lessee
shall, on the Expiration Date, and at its own cost, transfer possession of
the Leased Assets to the Lessor or the independent purchaser(s) thereof, as
the case may be, in each case by surrendering the same into the possession
of the Lessor or such purchaser(s), as the case may be, free and clear of
all Liens other than Lessor Liens, in good condition (as modified by
Modifications permitted by this Lease), ordinary wear and tear excepted,
and in compliance with Applicable Law. The Lessee shall, on and within a
reasonable time before and up to one year after the Expiration Date,
cooperate reasonably with the Lessor and the independent purchaser(s) of
Lessor's interest in the Leased Assets in order to facilitate the purchase
by such purchaser's) of Lessor's interest in the Leased Assets, which
cooperation shall include the following, all of which the Lessee shall do
on or before the Expiration Date or as soon thereafter as is reasonably
practicable: providing copies of all books and records regarding the
maintenance and ownership of the Leased Assets and all data and technical
and all other information relating thereto, providing a current copy of the
Plans and Specifications for the Properties, granting or assigning all
licenses (to the extent such licenses are assignable under Applicable Law)
necessary for the operation and maintenance of the Leased Assets and
cooperating reasonably in seeking and obtaining all necessary Governmental
Action. The obligations of the Lessee under this paragraph shall survive
the expiration or termination of this Lease.
ARTICLE XXVI
INDEMNIFICATION
26.1. General Indemnification. The Lessee agrees, whether or not any
of the transactions contemplated hereby shall be consummated, to assume
liability for, and to indemnify, protect, defend, save and keep harmless
each Indemnitee from and against, any and all Claims that may be imposed
on, incurred by or asserted against such Indemnitee (whether because of
action or omission by such Indemnitee or otherwise), whether or not such
Indemnitee shall also be indemnified as to any such Claim by any other
Person and whether or not such Claim arises or accrues prior to the Closing
Date or after the Expiration Date, in any way relating to or arising out
of:
(a) any of the Operative Documents or any of the transactions
contemplated thereby, and any amendment, modification or waiver in
respect thereof entered into or acknowledged by the Lessee;
(b) the Leased Assets or any part thereof or interest therein;
(c) the purchase, design, construction, preparation,
installation, inspection, delivery, non-delivery, acceptance,
rejection, ownership, management, possession, operation, rental,
lease, sublease, repossession, maintenance, repair, alteration,
modification, addition or substitution, storage, transfer of title,
redelivery, use, financing, refinancing, disposition, operation,
condition, sale (including, without limitation, any sale pursuant to
any provision hereof), return or other disposition of all or any part
or any interest in any Leased Asset or the imposition of any Lien (or
incurring of any liability to refund or pay over any amount as a
result of any Lien) thereon, including, without limitation: (1)
Claims or penalties arising from any violation of law or in tort
(strict liability or otherwise), (2) latent or other defects, whether
or not discoverable, (3) any Claim based upon a violation or alleged
violation of the terms of any restriction, easement, condition or
covenant or other matter affecting title to any Leased Asset, (4) the
making of any Modifications in violation of any standards imposed by
any insurance policies required to be maintained by the Lessee
pursuant to this Lease which are in effect at any time with respect
to any Leased Asset or any part thereof, (5) any Claim for patent,
trademark or copyright infringement, (6) Claims which would otherwise
be covered by insurance policies of the Lessee, as required by
Article XVII, and (7) Claims arising from any public improvements
with respect to any Property resulting in any charge or special
assessments being levied against the Property or any plans to widen,
modify or realign any street or highway adjacent to any Property, or
any Claim for utility "tap-in" fees;
(d) the breach by the Lessee of any covenant, representation or
warranty made by it or deemed made by it in any Operative Document or
any certificate required to be delivered by any Operative Document;
(e) the retaining or employment of any broker, finder or
financial advisor by the Lessee to act on its behalf in connection
with the transactions contemplated hereby;
(f) the existence of any Lien on or with respect to any Leased
Asset, any Capitalized Interest or Base Rent or Supplemental Rent,
title thereto, or any interest therein including any Liens which
arise out of the possession, use, occupancy, construction, repair or
rebuilding of any Leased Asset or by reason of labor or materials
furnished or claimed to have been furnished to the Lessee, or any of
its contractors or agents or by reason of the financing of any
personalty or equipment purchased or leased by the Lessee or
Modifications constructed by the Lessee, except Lessor Liens and
Liens in favor of the Lessor; or
(g) subject to the accuracy of Lessor's representation
set forth in Section 6.1(a), the transactions contemplated by this
Lease or by any other Operative Document, in respect of the
application of Parts 4 and 5 of Subtitle B of Title I of ERISA and
any prohibited transaction described in Section 4975 (c) of the Code;
provided, however, the Lessee shall not be required to indemnify any
Indemnitee under this Section 26.1 for any of the following: (1) any
Claim to the extent resulting from the willful misconduct or gross
negligence of such Indemnitee (it being understood that the Lessee shall
be required to indemnify an Indemnitee even if the ordinary (but not
gross) negligence of such Indemnitee caused or contributed to such
Claim) or the breach of any representation, warranty or covenant of such
Indemnitee set forth in any Operative Document, (2) any Claim resulting
from Lessor Liens which the Lessor is responsible for discharging under
the Operative Documents, (3) any Claim to the extent attributable to
acts or events occurring after the expiration of the Base Term or the
return or remarketing of any Leased Asset so long as the Lessor is not
exercising remedies against the Lessee in respect of the Operative
Documents, (4) any Claim arising from a breach or alleged breach by the
Lessor of any agreement entered into in connection with the assignment
or participation of Rent and (5) any Claim arising from the Lessor's or
any other Indemnitee's violation of any state or federal law or
regulation relating to banking or the offer or sale of securities. It is
expressly understood and agreed that the indemnity provided for herein
shall survive the expiration or termination of and shall be separate and
independent from any remedy under this Lease or any other Operative
Document. Without limiting the express rights of any Indemnitee under
this Section 26.1, this Section 26.1 shall be construed as an indemnity
only and not a guaranty of residual value of any Leased Asset.
26.2. Environmental Indemnity. Without limitation of the other
provisions of this Article XXVI, the Lessee hereby agrees to indemnify,
hold harmless and defend each Indemnitee from and against any and all
claims (including without limitation third party claims for personal injury
or real or personal property damage), losses (including but not limited to,
to the extent the Lease Balance has not been fully paid, any loss of value
of any Property), damages, liabilities, fines, penalties, charges,
administrative and judicial proceedings (including informal proceedings)
and orders, judgments, remedial action, requirements, enforcement actions
of any kind, and all reasonable and documented costs and expenses incurred
in connection therewith (including but not limited to reasonable and
documented attorneys' and/or paralegals' fees and expenses), including, but
not limited to, all costs incurred in connection with any investigation or
monitoring of site conditions or any clean-up, remedial, removal or
restoration work by any federal, state or local government agency, arising
in whole or in part, out of
(a) the presence on or under any Property of any Hazardous
Materials, or any releases or discharges of any Hazardous Materials
on, under, from or onto any Property for which any Indemnitee or
Lessee may be legally liable,
(b) any activity for which any Indemnitee or Lessee may be
legally liable, including, without limitation, construction, carried
on or undertaken on or off the Property, and whether by the Lessee or
any predecessor in title or any employees, agents, contractors or
subcontractors of the Lessee or any predecessor in title, or any
other Persons (including such Indemnitee), in connection with the
handling, treatment, removal, storage, decontamination, clean-up,
transport or disposal of any Hazardous Materials that at any time are
located or present on or under or that at any time migrate, flow,
percolate, diffuse or in any way move onto or under any Property,
(c) loss of or damage to any property or the environment
(including, without limitation, clean-up costs, response costs,
remediation and removal costs, cost of corrective action, costs of
financial assurance, fines and penalties and natural resource
damages), or death or injury to any Person, and all expenses
associated with the protection of wildlife, aquatic species,
vegetation, flora and fauna, and any mitigative action required by or
under Environmental Laws for which any Indemnitee or Lessee may be
legally liable,
(d) any claim concerning any Indemnitee's or Lessee's lack of
compliance with Environmental Laws, or any act or omission by any
Indemnitee, the Lessee or any of their agents, employees or
contractors causing an environmental condition that requires
remediation or would allow any Governmental Authority to record a
Lien on the land records, or
(e) any residual contamination on or under the Land, or
affecting any natural resources, and to any contamination of any
property or natural resources arising in connection with the
generation, use, handling, storage, transport or disposal of any such
Hazardous Materials, and irrespective of whether any of such
activities were or will be undertaken in accordance with applicable
laws, regulations, codes and ordinances for which any Indemnitee or
Lessee may be legally liable;
provided, however, the Lessee shall not be required to indemnify any
Indemnitee under this Section 26.2 for (1) any Claim to the extent
resulting from the willful misconduct or gross negligence of such
Indemnitee (it being understood that the Lessee shall be required to
indemnify an Indemnitee even if the ordinary (but not gross) negligence
of such Indemnitee caused or contributed to such Claim) or (2) any Claim
to the extent attributable to acts or events occurring after the
expiration of the Base Term or the return or remarketing of the
Properties so long as the Lessor is not exercising remedies against the
Lessee in respect of the Operative Documents. It is expressly understood
and agreed that the indemnity provided for herein shall survive the
expiration or termination of and shall be separate and independent from
any remedy under this Lease or any other Operative Document.
26.3. Proceedings in Respect of Claims. With respect to any amount
that the Lessee is requested by an Indemnitee to pay by reason of Section
26.1 or 26.2, such Indemnitee shall, if so requested by the Lessee and
prior to any payment, submit such additional information to the Lessee as
the Lessee may reasonably request and which is in the possession of such
Indemnitee to substantiate properly the requested payment.
In case any action, suit or proceeding shall be brought against any
Indemnitee, such Indemnitee shall notify the Lessee of the commencement
thereof, and the Lessee shall be entitled, at its expense, to participate
in, and, to the extent that the Lessee desires to, assume and control the
defense thereof; provided, however, that the Lessee shall have acknowledged
in writing its obligation to fully indemnify such Indemnitee in respect of
such action, suit or proceeding, and, the Lessee shall keep such Indemnitee
fully apprised of the status of such action, suit or proceeding and shall
provide such Indemnitee with all information with respect to such action,
suit or proceeding as such Indemnitee shall reasonably request, and
provided, further, that the Lessee shall not be entitled to assume and
control the defense of any such action, suit or proceeding if and to the
extent that, (A) in the reasonable opinion of such Indemnitee, (x) such
action, suit or proceeding involves any risk of imposition of criminal
liability or any risk of imposition of material civil liability on such
Indemnitee beyond that for which the Indemnitee is jointly and severally
liable with the Lessor or will involve a material risk of the sale,
forfeiture or loss of, or the creation of any Lien (other than a Permitted
Lien) on any Leased Asset or any part thereof unless, in the case of civil
liability, the Lessee shall have posted a bond or other security
satisfactory to the relevant Indemnitees in respect to such risk or (y) the
control of such action, suit or proceeding would involve a material actual
conflict of interest, (B) such proceeding involves Claims not fully
indemnified by the Lessee which the Lessee and the Indemnitee have been
unable to sever from the indemnified claim(s), or (C) an Event of Default
has occurred and is continuing. The Indemnitee may participate in a
reasonable manner at its own expense and with its own counsel in any
proceeding conducted by the Lessee in accordance with the foregoing. The
Lessee shall not enter into any settlement or other compromise with respect
to any Claim which is entitled to be indemnified under Section 26.1 or 26.2
without the prior written consent of the Indemnitee which consent shall not
be unreasonably withheld in the case of a money settlement not involving an
admission of liability of such Indemnitee; provided, however, that in the
event that such Indemnitee withholds consent to any settlement or other
compromise, the Lessee shall not be required to indemnify such Indemnitee
under Section 26.1 or 26.2 to the extent that the applicable Claim (x) is
for legal fees and expenses incurred after the date of the proposed
settlement or (y) results in a judgment in excess of such offered money
settlement.
Each Indemnitee shall at the expense of the Lessee supply the Lessee
with such information and documents reasonably requested by the Lessee and
in the possession of such Indemnitee as are necessary or advisable for the
Lessee to participate in any action, suit or proceeding to the extent
permitted by Section 26.1 or 26.2. Unless an Event of Default shall have
occurred and be continuing under Section 20.1(a), (f) or (g) no Indemnitee
shall enter into any settlement or other compromise with respect to any
Claim for which it is entitled to be indemnified under Section 26.1 or 26.2
without the prior written consent of the Lessee, which consent shall not be
unreasonably withheld, unless such Indemnitee waives its right to be
indemnified under Section 26.1 or 26.2 with respect to such Claim.
Upon payment in full of any Claim by the Lessee pursuant to Section
26.1 or 26.2 to or on behalf of an Indemnitee, the Lessee, without any
further action, shall be subrogated to any and all claims that such
Indemnitee may have relating thereto (including claims in respect of
insurance policies maintained by such Indemnitee at its own expense), and
such Indemnitee shall execute such instruments of assignment and
conveyance, evidence of claims and payment and such other documents,
instruments and agreements as may be necessary to preserve any such claims
and otherwise cooperate with the Lessee and give such further assurances as
are necessary or advisable to enable the Lessee vigorously to pursue such
claims.
Any amount required to be paid to an Indemnitee pursuant to Section
26.1 or 26.2 shall be paid to such Indemnitee promptly upon receipt of a
written demand therefor from such Indemnitee, accompanied by a written
statement describing in reasonable detail the basis for such indemnity and
the computation of the amount so payable and, if requested by the Lessee,
such determination shall be verified by a nationally recognized independent
accounting firm mutually acceptable to the Lessee and the Indemnitee at the
expense of the Lessee; provided, however, that if the Lessee has assumed
the defense of the related Claim or is paying the costs of the Indemnitee's
defense of the related Claim on an ongoing basis, the Lessee shall not be
required to pay such amount to the applicable Indemnitee until such time as
a judgment is entered with respect to such Claim, the enforcement of which
is not stayed or which judgment is not bonded over, or the Claim is
otherwise settled or lost.
26.4. General Tax Indemnity.
(a) Indemnification. The Lessee agrees to pay and assume
liability for, and to indemnify, protect, defend, save and keep
harmless each Indemnitee from and against, all Impositions.
(b) Contests. If any claim shall be made against any Indemnitee
or if any proceeding shall be commenced against any Indemnitee
(including a written notice of such proceeding) for any Imposition as
to which the Lessee may have an indemnity obligation pursuant to this
Section 26.4, or if any Indemnitee shall reasonably determine that
any Imposition to which the Lessee may have an indemnity obligation
pursuant to this Section 26.4 may be payable, such Indemnitee shall
promptly (and in any event, within thirty (30) days) notify the
Lessee in writing (provided that failure to so notify the Lessee
within thirty (30) days shall not alter such Indemnitee's rights
under this Section 26.4 except to the extent such failure precludes
or materially adversely affects the ability to conduct a contest of
any indemnified Taxes) and shall not take any action with respect to
such claim, proceeding or Imposition without the written consent of
the Lessee (such consent not to be unreasonably withheld or
unreasonably delayed) for thirty (30) days after the receipt of such
notice by the Lessee; provided, however, that in the case of any such
claim or proceeding, if such Indemnitee shall be required by law or
regulation to take action prior to the end of such 30-day period,
such Indemnitee shall in such notice to the Lessee, so inform the
Lessee, and such Indemnitee shall not take any action with respect to
such claim, proceeding or Imposition without the consent of the
Lessee (such consent not to be unreasonably withheld or unreasonably
delayed) for ten (10) days after the receipt of such notice by the
Lessee unless the Indemnitee shall be required by law or regulation
to take action prior to the end of such 10-day period.
The Lessee shall be entitled for a period of thirty (30) days
from receipt of such notice from the Indemnitee (or such shorter
period as the Indemnitee has notified the Lessee is required by law
or regulation for the Indemnitee to commence such contest), to
request in writing that such Indemnitee contest the imposition of
such Tax, at the Lessee's expense. If (x) such contest can be pursued
in the name of the Lessee and independently from any other proceeding
involving a Tax liability of such Indemnitee for which the Lessee has
not agreed to indemnify such Indemnitee, (y) such contest must be
pursued in the name of the Indemnitee, but can be pursued
independently from any other proceeding involving a Tax liability of
such Indemnitee for which the Lessee has not agreed to indemnify such
Indemnitee or (z) the Indemnitee so requests, then the Lessee shall
be permitted to control the contest of such claim, provided that in
the case of a contest described in clause (y), if the Indemnitee
determines in good faith that such contest by the Lessee could have a
material adverse impact on the business or operations of the
Indemnitee and provides a written explanation to the Lessee of such
determination, the Indemnitee may elect to control or reassert
control of the contest, and provided, that by taking control of the
contest, Lessee acknowledges that it is responsible for the
Imposition ultimately determined to be due by reason of such claim,
and provided, further, that in determining the application of clauses
(x) and (y) of the preceding sentence, each Indemnitee shall take any
and all reasonable steps to segregate claims for any Taxes for which
the Lessee indemnifies hereunder from Taxes for which the Lessee is
not obligated to indemnify hereunder, so that the Lessee can control
the contest of the former. In all other claims requested to be
contested by the Lessee, the Indemnitee shall control the contest of
such claim, acting through counsel reasonably acceptable to the
Lessee. In no event shall the Lessee be permitted to contest (or the
Indemnitee required to contest) any claim, (A) if such Indemnitee
provides the Lessee with a legal opinion of counsel reasonably
acceptable to the Lessee that such action, suit or proceeding
involves a risk of imposition of criminal liability or will involve a
material risk of the sale, forfeiture or loss of, or the creation of
any Lien (other than a Permitted Lien) on any Leased Asset or any
part of any thereof unless the Lessee shall have posted and
maintained a bond or other security satisfactory to the relevant
Indemnitee in respect to such risk, (B) if an Event of Default has
occurred and is continuing under Section 20.1(a), (f) or (g) unless
the Lessee shall have posted and maintained a bond or other security
satisfactory to the relevant Indemnitee in respect of the Taxes
subject to such claim and any and all expenses for which the Lessee
is responsible hereunder reasonably foreseeable in connection with
the contest of such claim, (C) unless the Lessee shall have agreed to
pay and shall pay, to such Indemnitee on demand all reasonable
out-of-pocket costs, losses and expenses that such Indemnitee may
incur in connection with contesting such Imposition including all
reasonable legal, accounting and investigatory fees and
disbursements, or (D) if such contest shall involve the payment of
the Tax prior to the contest, unless the Lessee shall provide to the
Indemnitee an interest-free advance in an amount equal to the
Imposition that the Indemnitee is required to pay (with no additional
net after-tax costs to such Indemnitee). In addition, for Indemnitee
controlled contests and claims contested in the name of the
Indemnitee in a public forum, no contest shall be required: (A)
unless the amount of the potential indemnity (taking into account all
similar or logically related claims that have been or could be raised
in any audit involving such Indemnitee for which the Lessee may be
liable to pay an indemnity under this Section 26.4(b)) exceeds
$50,000 and (B) unless, if requested by the Indemnitee, the Lessee
shall have provided to the Indemnitee an opinion of counsel selected
by the Lessee (which may be in-house counsel) (except, in the case of
income taxes indemnified hereunder which shall be an opinion of
independent tax counsel selected by the Indemnitee and reasonably
acceptable to the Lessee) that a reasonable basis exists to contest
such claim. In no event shall an Indemnitee be required to appeal an
adverse judicial determination to the United States Supreme Court.
The party conducting the contest shall consult in good faith
with the other party and its counsel with respect to the contest of
such claim for Taxes (or claim for refund) but the decisions
regarding what actions are to be taken shall be made by the
controlling party in its sole judgement, provided, however, that if
the Indemnitee is the controlling party and the Lessee recommends the
acceptance of a settlement offer made by the relevant Governmental
Authority and such Indemnitee rejects such settlement offer then the
amount for which the Lessee will be required to indemnify such
Indemnitee with respect to the Taxes subject to such offer shall not
exceed the amount which it would have owed if such settlement offer
had been accepted. In addition, the controlling party shall keep the
noncontrolling party reasonably informed as to the progress of the
contest, and shall provide the noncontrolling party with a copy of
(or appropriate excerpts from) any reports or claims issued by the
relevant auditing agents or taxing authority to the controlling party
thereof, in connection with such claim or the contest thereof.
Each Indemnitee shall at the Lessee's expense supply the Lessee
with such information and documents reasonably requested by the
Lessee as are necessary or advisable for the Lessee to participate in
any action, suit or proceeding to the extent permitted by this
Section 26.4(b). No Indemnitee shall enter into any settlement or
other compromise or fail to appeal an adverse ruling with respect to
any claim which is entitled to be indemnified under this Section 26.4
(and with respect to which contest is required under this Section
26.4(b)) without the prior written consent of the Lessee, unless such
Indemnitee waives its right to be indemnified under this Section 26.4
with respect to such claim.
Notwithstanding anything contained herein to the contrary, an
Indemnitee will not be required to contest (and the Lessee shall not
be permitted to contest) a claim with respect to the imposition of
any Tax if such Indemnitee shall waive its right to indemnification
under this Section 26.4 with respect to such claim (and any claim
with respect to such year or any other taxable year the contest of
which is materially adversely affected as a result of such waiver).
(c) Reimbursement for Tax Savings. If (x) an Indemnitee or any
Affiliate thereof actually realizes a deduction, offset, credit or
refund of any Taxes or any other savings or benefit as a result of
any indemnity paid by the Lessee pursuant to this Section 26.4 or (y)
by reason of the incurrence or imposition of any Tax (or the
circumstances or event giving rise thereto) for which an Indemnitee
is indemnified hereunder or any payment made to or for the account of
such Indemnitee by the Lessee pursuant to this Section 26.4 or any
payment made by an Indemnitee to the Lessee by reason of this Section
26.4(c), such Indemnitee at any time actually realizes a reduction in
any Taxes for which the Lessee is not required to indemnify such
Indemnitee pursuant to this Section 26.4, then such Indemnitee shall
promptly pay to the Lessee (xx) the amount of such deduction, offset,
credit, refund, or other savings or benefit together with the amount
of any interest received by such Indemnitee on account of such
deduction, offset, credit, refund or other savings or benefit or (yy)
an amount equal to such reduction in Taxes, as the case may be, in
either case together with an amount equal to any reduced Taxes
payable by such Indemnitee as a result of such payment. Each
Indemnitee agrees to take such actions as the Lessee may reasonably
request (provided in the good faith judgment of the Indemnitee, such
actions would not result in a material adverse effect on the
Indemnitee for which the Indemnitee is not entitled to
indemnification from the Lessee) and to otherwise act in good faith
to claim such refunds and other available Tax benefits, and take such
other actions as may be reasonable to minimize any payment due from
the Lessee pursuant to this Section 26.4 and to maximize the amount
of any Tax savings available to it. The disallowance or reduction of
any credit, refund or other tax savings with respect to which an
Indemnitee has made a payment to the Lessee under this Section
26.4(c) shall be treated as a Tax for which the Lessee is obligated
to indemnify such Indemnitee hereunder without regard to the
exclusions set forth in the definition of Impositions.
(d) Payments. Any Imposition identifiable under this Section
26.4 shall be paid directly when due to the applicable taxing
authority if direct payment is practicable and permitted. If direct
payment to the applicable taxing authority is not permitted or is
otherwise not made, any amount payable to an Indemnitee pursuant to
Section 26.4 shall be paid within thirty (30) days after receipt of a
written demand therefor from such Indemnitee accompanied by a written
statement describing in reasonable detail the amount so payable, but
not before two Business Days prior to the date that the relevant
Taxes are due. Any payments made pursuant to this Section 26.4 shall
be made directly to the Indemnitee entitled thereto or the Lessee, as
the case may be, in immediately available funds at such bank or to
such account as specified by the payee in written directions to the
payor, or, if no such direction shall have been given, by check of
the payor payable to the order of the payee by certified mail,
postage prepaid at its address. Upon the request of any Indemnitee
with respect to a Tax that the Lessee is required to pay, the Lessee
shall furnish to such Indemnitee the original or a certified copy of
a receipt for the Lessee's payment of such Tax or such other evidence
of payment as is reasonably acceptable to such Indemnitee.
(e) Reports. In the case of any report, return or statement
required to be filed with respect to any Taxes that are subject to
indemnification under this Section 26.4 and of which the Lessee has
knowledge, the Lessee shall promptly notify the Indemnitee of such
requirement and, at the Lessee's expense (i) if the Lessee is
permitted (unless otherwise requested by the Indemnitee) by
Applicable Law, timely file such report, return or statement in its
own name or (ii) if such report, return or statement is required to
be in the name of or filed by such Indemnitee or the Indemnitee
otherwise requests that such report, return or statement for filing
by such Indemnitee in such manner as shall be satisfactory to such
Indemnitee and send the same to the Indemnitee for filing no later
than fifteen (15) days prior to the due date therefor. In any case in
which the Indemnitee will file any such report, return or statement,
the Lessee shall, upon written request of such Indemnitee, provide
such Indemnitee with such information as is reasonably necessary to
allow the Indemnitee to file such report, return or statement.
(f) Verification. At the Lessee's request, the amount of any
indemnity payment by the Lessee or any payment by an Indemnitee to
the Lessee pursuant to this Section 26.4 shall be verified and
certified by an independent public accounting firm mutually
acceptable to the Lessee and the Indemnitee. The Indemnitee shall
provide such independent public accounting firm, on a confidential
basis, the requisite financial information. The costs of such
verification shall be borne by the Lessee unless such verification
shall result in an adjustment in the Lessee's favor of the lesser of
(i) $10,000, and (ii) five percent of the payment as computed by the
Indemnitee, in which case such fee shall be paid by the Indemnitee.
In no event shall the Lessee have the right to review the
Indemnitee's tax returns or receive any other confidential
information from the Indemnitee in connection with such verification.
Any information provided to such accountants by any Person shall be
and remain the exclusive property of such Person and shall be deemed
by the parties to be (and the accountants will confirm in writing
that they will treat such information as) the private, proprietary
and confidential property of such Person, and no Person other than
such Person and the accountants shall be entitled thereto and all
such materials shall be returned to such Person. Such accounting firm
shall be requested to make its determination within thirty (30) days
of the Lessee's request for verifications and the computations of the
accounting firm shall be final, binding and conclusive upon the
Lessee and the Indemnitee. The parties agree that the sole
responsibility of the independent public accounting firm shall be to
verify the amount of a payment pursuant to this Lease and that
matters of interpretation of this Lease are not within the scope of
the independent accounting firm's responsibilities.
(g) Tax Ownership. The Lessor represents and warrants that it
will not, prior to the termination, claim ownership of (or any tax
benefits, including depreciation, with respect to) the Leased Assets
for any income tax purposes, it being understood that the Lessee is
and will remain the owner of the Leased Assets for such income tax
purposes until the termination of this Lease. If, notwithstanding the
income tax intentions of the parties as set forth herein, the Lessor
actually receives any income tax deductions, reductions in income tax
or other income tax benefit as a result of any claim for, or
recharacterization requiring such party to take, any tax benefits
attributable to ownership of the Leased Assets for income tax
purposes, the Lessor shall pay to the Lessee the amount of such
income tax savings actually realized by the Lessor (less the amount
of any anticipated increase in income tax which the Lessor determines
is currently payable as a result of such claim or
recharacterization), provided that the Lessee shall agree to
reimburse the Lessor for any subsequent increase in the Lessor's
income taxes resulting from such claim or recharacterization not
taken into account in the payment made to the Lessee, up to the
amount paid to the Lessee by the Lessor. The parties agree that this
Section 26.4(g) is intended to require a payment to the Lessee if and
only if the Lessor shall have actually received an unanticipated tax
savings with respect to the Leased Assets that would not have been
received if the Lessor had advanced funds to the Lessee in the form
of a loan secured by the Leased Assets in an amount equal to the
aggregate amount of Advances made with respect to such Leased Assets.
Nothing in this Section 26.4(g) shall be construed to require the
Lessor to take any affirmative action to realize any tax savings if
in its good faith judgment such action may have a material adverse
affect on the Lessor.
26.5. Funding Losses. If any payment of Base Rent or any portion of a
Lease Balance is made on any day other than the last day of an Interest
Period applicable thereto (other than as a result of the failure of the
Lessor and each Liquidity Provider to act in accordance with the provisions
of the Operative Documents), the Lessee shall reimburse the Lessor, each
Conduit and each Liquidity Provider within fifteen (15) days after demand
for any resulting loss or expense incurred by it, including (without
limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period
after any such payment or conversion or failure to borrow or prepay,
provided that the Lessor, such Conduit and such Liquidity Provider shall
have delivered to the Lessee a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest
error, and provided, further, that such loss shall in no event exceed the
then effective Lease Rate which would have been payable for the balance of
such Interest Period. In the event that the Lessee pays any portion of the
Lease Balance allocated to one or more CP Tranches prior to the maturity
date thereof, the Lessee shall pay to the Lessor for the account of each
Conduit the interest that would have accrued on its CP Tranches at the
applicable CP Rates to such maturity dates. Any amount paid to the Lessor
pursuant to the preceding sentence shall be invested in Permitted
Investments of the type described in clause (a) of the definition thereof,
which investments shall mature as close as possible to, but not later than,
the date such CP Tranche(s) mature. All earnings on such Permitted
Investments shall be paid over to the Lessee provided that no Event of
Default has occurred and is continuing. The Lessor will, at the request of
the Lessee, furnish such additional information concerning the
determination of such loss as the Lessee may reasonably request.
26.6. Regulation D Compensation. For so long as the Lessor (or an
Affiliate thereof) or any Liquidity Provider is required to maintain
reserves against "Eurocurrency Liabilities" (or any other category of
liabilities which include deposits by reference to which the Base Rent is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Liquidity Provider to
United States residents), and, as a result, the cost to the Lessor of
making or maintaining its Advances or to any Liquidity Provider of making
or maintaining its Loans or Liquidity Purchases which bear interest by
reference to the Eurodollar Rate is increased, then the Lessor or such
Liquidity Provider, as the case may be, may require the Lessee to pay,
contemporaneously with each payment of Base Rent, an additional amount at a
rate per annum up to but not exceeding the excess of (i) (A) the applicable
Eurodollar Rate divided by (B) one minus the Eurocurrency Reserve
Requirements over (ii) the applicable Eurodollar Rate. In the event that
the Lessor or a Liquidity Provider wishes to require payment of such
additional amount, the Lessor (x) shall so notify the Lessee, in which case
such additional Rent shall be payable to the Lessor or such Liquidity
Provider, as the case may be, at the place indicated in such notice and (y)
shall furnish to the Lessee at least five (5) Business Days prior to each
date on which Rent is payable a certificate setting forth the amount to
which it is then entitled under this Section (which shall be consistent
with its good faith estimate of the level at which the required related
reserves are maintained by it). Each such certificate shall be accompanied
by such information as the Lessee may reasonably request as to the
computation set forth therein.
26.7. Basis for Determining Eurodollar Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period:
(a) deposits in dollars (in the applicable amounts) are not
being offered to the Lessor (or its Affiliates) or any Liquidity
Provider in the relevant market for such Interest Period, or
(b) the Lessor advises the Lessee that the Eurodollar Rate as
determined by the Lessor will not adequately and fairly reflect the
cost to the Lessor and the Liquidity Providers of funding Advances,
Loans or Liquidity Purchases, as the case may be, for such Interest
Period,
the Lessor shall forthwith give notice thereof to the Lessee, whereupon
until the Lessor notifies the Lessee that the circumstances giving rise
to such suspension no longer exist, (i) the obligation of the Lessor to
make Advances based on the Eurodollar Rate shall be suspended and
Advances shall be made on the basis of the Alternate Base Rate and (ii)
each outstanding Advance shall begin to bear interest at the Alternate
Base Rate on the last day of the then current Interest Period applicable
thereto.
26.8. Illegality. If, on or after the date hereof, the adoption of
any applicable law, rule or regulation, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Lessor (or
its Affiliates) or any Liquidity Provider with any request or directive
(whether or not having the force of law) of any such authority, central
bank or comparable agency shall make it unlawful or impossible for the
Lessor (or its Affiliates) or any Liquidity Provider to make, maintain or
fund its Advances, Loans or Liquidity Purchases, as the case may be, based
on the Eurodollar Rate and the Lessor shall so notify the Lessee, whereupon
until the Lessor notifies the Lessee that the circumstances giving rise to
such suspension no longer exist, the obligation to make Advances based on
the Eurodollar Rate shall be suspended and Advances shall be made on the
basis of the Alternate Base Rate. The Lessor, with the consent of the
Lessee (which consent shall not unreasonably be withheld), will designate a
different Funding Office if such designation will avoid the need for giving
such notice and will not, in the judgment of the Lessor, be otherwise
disadvantageous to the Lessor. If such notice is given (i) the Lessee shall
be entitled, upon its request, to a reasonable explanation of the factors
underlying such notice and (ii) each Advance then outstanding shall begin
to bear interest at the Alternate Base Rate either (a) on the last day of
the then current Interest Period applicable thereto, if the Lessor may
lawfully continue to maintain and fund such Advance to such day or (b)
immediately, if the Lessor or any Liquidity Provider shall determine that
it may not lawfully continue to maintain and fund such Advance, Loan or
Liquidity Purchase, as the case may be, to such day.
26.9. Increased Cost and Reduced Return. (a) In the event that the
adoption of any applicable law, rule or regulation, or any change therein
or in the interpretation or application thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof or compliance by the Lessor or any
Liquidity Provider with any request or directive after the date hereof
(whether or not having the force of law) of any such authority, central
bank or comparable agency:
(i) does or shall subject the Lessor or any Liquidity Provider
to any additional tax of any kind whatsoever with respect to the
Operative Documents or any Advance, Loan or Liquidity Purchase, as
the case may be, made by it, or change the basis or the applicable
rate of taxation of payments to the Lessor or any Liquidity Provider
of principal, interest or any other amount payable hereunder or under
any other Operative Document (except for the imposition of or change
in any tax on or measured by the overall net income of the Lessor or
any Liquidity Provider (other than any such tax imposed by means of
withholding));
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, insurance assessment, compulsory loan or
similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, or other
credit extended by, or any other acquisition of funds by, any office
of the Lessor or any Liquidity Provider which are not otherwise
included in determination of the rate of interest on Advances
hereunder; or
(iii) does or shall impose on the Lessor or any Liquidity
Provider any other condition;
and the result of any of the foregoing is to increase the cost to the
Lessor or any Liquidity Provider of making or maintaining Advances,
Loans or Liquidity Purchases, as the case may be, or to reduce any
amount receivable hereunder, then in any such case, the Lessee shall
promptly pay to the Lessor or any Liquidity Provider, upon demand, any
additional amounts necessary to compensate the Lessor and each Liquidity
Provider for such increased cost or reduced amount receivable.
(b) If the Lessor or any Liquidity Provider shall have determined
that, after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, or if any Liquidity
Provider shall have determined that a change in the risk weighting of its
Commitment is necessary, and any of the foregoing has or would have the
effect of reducing the rate of return on capital of the Lessor or any
Liquidity Provider (or any entity directly or indirectly controlling the
Lessor or any Liquidity Provider) as a consequence of the Lessor's or any
Liquidity Provider's obligations under the Operative Documents to a level
below that which the Lessor or any Liquidity Provider (or any entity
directly or indirectly controlling the Lessor or any Liquidity Provider)
could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy),
then from time to time, within fifteen (15) days after demand by the Lessor
or any Liquidity Provider, the Lessee shall pay to the Lessor such
additional amount or amounts as will compensate the Lessor and the
Liquidity Providers (or their respective controlling entities) for such
reduction.
(c) The Lessor will promptly notify the Lessee of any event of which
it has knowledge, occurring after the date hereof, which will entitle the
Lessor to compensation pursuant to this Section and will, if practicable,
with the consent of the Lessee (which consent shall not unreasonably be
withheld), designate a different Funding Office or take any other
reasonable action if such designation or action will avoid the need for, or
reduce the amount of, such compensation and will not, in the judgment of
the Lessor, be otherwise disadvantageous to the Lessor. A certificate of
the Lessor or any Liquidity Provider claiming compensation under this
Section and setting forth in reasonable detail its computation of the
additional amount or amounts to be paid to it hereunder shall be conclusive
in the absence of manifest error. In determining such amount, the Lessor
and each Liquidity Provider may use any reasonable averaging and
attribution methods.
ARTICLE XXVII
ESTOPPEL CERTIFICATES
27.1. Estoppel Certificates. At any time and from time to time upon
not less than twenty (20) days' prior request by the Lessor or the Lessee
(the "Requesting Party"), the other party (whichever party shall have
received such request, the "Certifying Party") shall furnish to the
Requesting Party (but in the case of the Lessor, as Certifying Party, not
more than four times per year unless required to satisfy the requirements
of any sublessees and only to the extent that the required information has
been provided to the Lessor by the Lessee) a certificate signed by an
individual having the office of vice president or higher in the Certifying
Party certifying that this Lease is in full force and effect (or that this
Lease is in full force and effect as modified and setting forth the
modifications); the dates to which the Base Rent and Supplemental Rent have
been paid; to the best knowledge of the signer of such certificate, whether
or not the Requesting Party is in default under any of its obligations
hereunder (and, if so, the nature of such alleged default); and such other
matters under this Lease as the Requesting Party may reasonably request.
Any such certificate furnished pursuant to this Article XXVII may be relied
upon by the Requesting Party, and any existing or prospective mortgagee,
purchaser or lender, and any accountant or auditor, of, from or to the
Requesting Party (or any Affiliate thereof).
ARTICLE XXVIII
ACCEPTANCE OF SURRENDER
28.1. Acceptance of Surrender. No surrender to the Lessor of this
Lease or of all or any portion of any Leased Asset 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 the Lessor, and no act by the Lessor
or any representative or agent of the Lessor, other than a written
acceptance, shall constitute an acceptance of any such surrender.
ARTICLE XXIX
NO MERGER OF TITLE
29.1. No Merger of Title. There shall be no merger of this Lease or
of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, in whole or in
part, (a) this Lease or the leasehold estate created hereby or any interest
in this Lease or such leasehold estate, (b) the fee or ground leasehold
estate in any Leased Asset, except as may expressly be stated in a written
instrument duly executed and delivered by the appropriate Person or (c) a
beneficial interest in the Lessor.
ARTICLE XXX
INTENT OF THE PARTIES
30.1. Ownership of the Properties. (a) It is the intent of the
parties hereto that: (i) this Lease constitutes an operating lease from the
Lessor to the Lessee for the purposes of the Lessee's financial reporting,
(ii) the Lease and other transactions contemplated hereby preserve
ownership in the Leased Assets in the Lessee for Federal and state income
tax and bankruptcy purposes, (iii) each Lease Supplement grants to the
Lessor a Lien on the Leased Assets covered thereby, and (iv) the
obligations of the Lessee to pay Base Rent and any part of the Lease
Balance shall be treated as payments of interest and principal,
respectively, for Federal and state income tax and bankruptcy purposes. The
Lessor shall be deemed to have a valid and binding security interest in and
Lien on the Leased Assets, free and clear of all Liens other than Permitted
Liens, as security for the obligations of the Lessee under the Operative
Documents (it being understood and agreed that the Lessee does hereby grant
a security interest in and Lien on, and convey, transfer, assign, mortgage
and warrant to the Lessor and its successors, transferees and assigns, the
leased Assets and any proceeds or products thereof, to have and hold the
same as collateral security for the payment and performance of the
obligations of the Lessee under the Operative Documents), and each of the
parties hereto agrees that it will not, nor will it permit any Affiliate to
at any time, take any action or fail to take any action with respect to the
preparation or filing of any income tax return, including an amended income
tax return, to the extent that such action or such failure to take action
would be inconsistent with the intention of the parties expressed in this
Section 30.1.
(b) Specifically, without limiting the generality of clause (a)
of the Section 30.1, the parties hereto intend and agree that in the event
of any insolvency or receivership proceedings or a petition under the
United States bankruptcy laws or any other applicable insolvency laws or
statute of the United States of America or any State or Commonwealth
thereof affecting the Lessee, the Guarantor, the Lessor, any other Person
or any collective actions, the transactions evidenced by the Operative
Documents shall be regarded as loans made by the Lessor to the Lessee.
ARTICLE XXXI
PAYMENT OF CERTAIN EXPENSES
31.1. Transaction Expenses. (a) The Lessee shall pay, or cause to be
paid, from time to time all Transaction Expenses in respect of the
transactions taking place on the Closing Date and on each Funding Date on
such respective date; provided, however, that, if the Lessee has not
received written invoices therefor five (5) days prior to such date, such
Transaction Expenses shall be paid on the earlier of (i) the next Funding
Date and (ii) the date thirty-five (35) days after the Lessee has received
written invoices therefor.
(b) The Lessee shall pay or cause to be paid (i) the reasonable fees
and expenses of the Paying Agent or any successor Paying Agent, (ii) all
reasonable Transaction Expenses from time to time incurred by the Lessor in
entering into any future amendments or supplements with respect to any of
the Operative Documents, whether or not such amendments or supplements are
ultimately entered into, or giving or withholding of waivers of consents
hereto or thereto, in each case which have been requested by or approved by
the Lessee, (iii) all reasonable Transaction Expenses incurred by the
Lessor in connection with any purchase of any Leased Asset by the Lessee or
other Person pursuant to this Lease and (iv) all Transaction Expenses
incurred by the Lessor, the Receivable Purchaser, the Collateral Agent, the
Conduits, the Liquidity Agent and the Liquidity Providers in respect of
enforcement of any of their rights or remedies against the Lessee or the
Guarantor in respect of the Operative Documents.
31.2. Brokers' Fees and Stamp Taxes. The Lessee shall pay or cause to
be paid any brokers' fees and any and all stamp, transfer and other similar
taxes, fees and excises, if any, including any interest and penalties,
which are payable in connection with the transactions contemplated by this
Lease and the other Operative Documents. The Lessor and the Lessee each
represent to the other that it has not employed any brokers in connection
with the transactions contemplated by the Operative Documents.
31.3. State Financing and Grants. Notwithstanding anything to the
contrary contained herein, financing and grants, which do not create a Lien
on the Leased Assets, from the State of Maryland or any local Governmental
Authority thereof to the Lessee or any Affiliate of the Lessee shall not in
any way reduce the amount of Advances to be made by the Lessor to the
Lessee with respect to any Leased Asset.
ARTICLE XXXII
OTHER COVENANTS AND AGREEMENTS OF LESSEE
32.1. Information. The Lessee will deliver to the Lessor:
(a) within five (5) days after a Responsible Employee of the
Lessee or any Affiliate of the Lessee obtains knowledge of the
occurrence of each Event of Default or each event that, with the
giving of notice or time elapse, or both, would constitute an Event
of Default continuing on the date of such statement, a statement of
the authorized officer setting forth details of such Event of Default
or event and the action that the Lessee proposes to take with respect
thereto;
(b) within five (5) days of any change of the Guarantor's or
the Lessee's independent public accountants, notification thereof;
(c) promptly upon becoming aware thereof, written notice of any
material adverse change in the business, financial position or
results of operations of the Guarantor and its Subsidiaries,
considered as a whole;
(d) as soon as possible and in any event within five (5) days
after knowledge of (or such time as a Responsible Employee of Lessee
or any Affiliate of the Lessee reasonably should have had knowledge
of) the occurrence of any material violation or alleged violation of
an Environmental Law relating to any Property, a statement of an
authorized officer setting forth the details of such violation and
the action which the Lessee proposes to take with respect thereto;
(e) from time to time such additional information regarding the
business, properties, condition or operations, financial or
otherwise, of the Guarantor and its Significant Subsidiaries, or
regarding the Leased Assets or the status of any construction
thereon, as the Lessor may reasonably request;
(f) not later than five (5) Business Days after request, copies
of all amendments to and waivers of the Credit Agreement requested by
the Guarantor; and
(g) not later than five (5) Business days after delivery,
copies of all amendments to and waivers of the Credit Agreement.
32.2. Financial Statements.
(a) The Lessee will furnish or cause to be furnished to the
Lessor and each Liquidity Provider, as and when required by Section
5.01(a)-(d) of the Credit Agreement, all the reports, schedules,
certificates and statements required of the Guarantor and its
Subsidiaries to be delivered pursuant to Section 5.01(a)- (d) of the
Credit Agreement; provided, however, that the Lessee shall not be
required to furnish any such document to any such Person pursuant to
this Lease if such Person or its Affiliate is a party to the Credit
Agreement and receives such document pursuant to the terms thereof.
(b) The Lessee will furnish to the Lessor and each Liquidity
Provider, not later than ninety (90) days after the end of each of
its fiscal years, unaudited financial statements of the Lessee,
together with a Responsible Employee Certificate of the Lessee
certifying that, to the best knowledge of such Responsible Employee,
no Default has occurred and is continuing or, if a Default or Event
of Default has occurred and is continuing, the nature thereof and the
action the Lessee is taking with respect thereto.
32.3. Other Covenants. If any covenants are set forth in any Lease
Supplement, then the Lessee will observe and perform such covenants
according to the terms thereof with the same force and effect as if set
forth in full
herein.
ARTICLE XXXIII
MISCELLANEOUS
33.1. Survival; Severability; Etc. If any term or provision of this
Lease or any application thereof shall be declared invalid or
unenforceable, the remainder of this Lease and any other application of
such term or provision shall not be affected thereby. If any right or
option of the Lessee provided in this Lease would, in the absence of the
limitation imposed by this sentence, be invalid or unenforceable as being
in violation of the rule against perpetuities or any other rule of law
relating to the vesting of an interest in or the suspension of the power of
alienation of property, then such right or option shall be exercisable only
during the period which shall end twenty-one (21) years after the date of
death of the last survivor of the descendants of Xxxxxxxx X. Xxxxxxxxx, the
former President of the United States, and Xxxx X. Xxxxxxxxxxx, the founder
of the Standard Oil Company, known to be alive on the date of the
execution, acknowledgement and delivery of this Lease.
33.2. Amendments and Modifications. Neither this Lease nor any
provision hereof may be amended, waived, discharged or terminated except by
an instrument in writing in recordable form signed by the Lessor and the
Lessee.
33.3. No Waiver. No failure by the Lessor or the Lessee to insist
upon the strict performance of any term hereof or to exercise any right,
power or remedy upon a default 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.
33.4. Notices. All notices, demands, requests, consents, approvals
and other communications hereunder shall be in writing (including by
facsimile), and directed to the address of the appropriate party as set
forth in Schedule I hereto.
33.5. 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.
33.6. 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.
33.7. Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
33.8. GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES, EXCEPT AS TO MATTERS
RELATING TO THE CREATION OF THE LEASEHOLD ESTATES HEREUNDER WITH RESPECT TO
ANY PROPERTY (AS DEFINED IN THIS LEASE) AND THE EXERCISE OF RIGHTS AND
REMEDIES WITH RESPECT THERETO, WHICH SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE WHERE SUCH PROPERTY IS LOCATED.
WITHOUT LIMITING THE FOREGOING, IN THE EVENT THAT THIS LEASE IS DEEMED TO
CONSTITUTE A FINANCING, WHICH IS THE INTENTION OF THE PARTIES, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES,
SHALL GOVERN THE CREATION, TERMS AND PROVISIONS OF THE INDEBTEDNESS
EVIDENCED HEREBY, BUT THE LIEN CREATED HEREBY AND THE CREATION AND THE
ENFORCEMENT OF SAID LIEN WITH RESPECT TO ANY PROPERTY (AS DEFINED IN THIS
LEASE) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE WHERE SUCH PROPERTY IS LOCATED.
33.9. Original Lease. The single executed original of this Lease
containing the receipt of the Lessor therefor on or following the signature
page thereof shall be the Original Executed Counterpart of this Lease (the
"Original Executed Counterpart"). To the extent that this Lease constitutes
chattel paper, as such term is defined in the Uniform Commercial Code as in
effect in any applicable jurisdiction, no security interest in this Lease
may be created through the transfer or possession of any counterpart other
than the Original Executed Counterpart.
33.10.WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH, THIS LEASE AND/OR ANY OF THE OTHER OPERATIVE
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF SUCH PARTIES. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THEY
HAVE RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THE
LEASE AND EACH SUCH OTHER OPERATIVE DOCUMENTS.
33.11 TRUTH IN LEASING REQUIREMENT IN COMPLIANCE WITH FEDERAL
AVIATION REGULATION ss.91.23. THE LESSEE HEREBY ADVISES THE LESSOR THAT
FROM THE DATE OF ITS MANUFACTURE TO THE DATE OF THIS LEASE, THE AIRCRAFT
LEASED UNDER THIS LEASE HAS BEEN MAINTAINED AND INSPECTED IN ACCORDANCE
WITH ss.91.409(f)(3) OF THE FEDERAL AVIATION REGULATIONS.
THE LESSEE CERTIFIES THAT IT IS RESPONSIBLE FOR THE STATUS OF
COMPLIANCE OF THE AIRCRAFT WITH APPLICABLE MAINTENANCE AND INSPECTION
REQUIREMENTS AS SET FORTH UNDER FAA REGULATIONS APPLICABLE TO THE LESSEE'S
USE AND OPERATION OF THE AIRCRAFT. IN ADDITION, UPON THE LESSOR'S REQUEST,
THE LESSEE AGREES TO ADVISE THE LESSOR WHICH OF THE REQUIRED FAA
MAINTENANCE PROGRAMS THE LESSEE HAS SELECTED AND AGREES TO PROVIDE THE
LESSOR WITH WRITTEN INSPECTION REPORTS FOR INSPECTIONS ACCOMPLISHED UNDER
SAID PROGRAM.
THE LESSEE IS SOLELY RESPONSIBLE FOR OPERATIONAL CONTROL OF THE
AIRCRAFT UNDER THIS LEASE AND CERTIFIES AND AGREES TO COMPLY WITH ALL
APPLICABLE FAA REGULATIONS ISSUED DURING THE TERM OF THIS LEASE. THE LESSEE
IS HEREBY ADVISED THAT AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL
CONTROL AND PERTINENT FAA REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA
FLIGHT STANDARDS DISTRICT OFFICE, GENERAL AVIATION DISTRICT OFFICE OF AIR
CARRIER DISTRICT OFFICE.
THE LESSEE AGREES TO KEEP A COPY OF THIS LEASE IN THE AIRCRAFT AT ALL
TIMES DURING THE TERM OF THIS LEASE.
THE LESSEE AGREES TO COMPLY WITH ALL REQUIREMENTS OF FEDERAL AVIATION
REGULATION ss. 91.23.
IN WITNESS WHEREOF, the parties have caused this Lease be duly
executed and delivered as of the date first above written.
RITE AID REALTY CORP.,
as Lessee
By:
Name:
Title:
SUMITOMO BANK LEASING AND
FINANCE, INC., as Lessor
By:
Name:
Title:
Funding Office:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of the date hereof.
SUMITOMO BANK LEASING AND
FINANCE, INC.
By:
Name:
Title:
APPENDIX 1
TO MASTER LEASE AND SECURITY AGREEMENT
DEFINITIONS AND INTERPRETATION
A. Interpretation. In each Operative Document, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and
vice versa;
(ii) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns
are permitted by the Operative Documents, and, unless otherwise
provided or the context otherwise requires, reference to a Person in
a particular capacity excludes such Person in any other capacity or
individually;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative
Document), document or instrument means such agreement, document or
instrument as amended or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms of
the other Operative Documents and reference to any promissory note
includes any promissory note which is an extension or renewal thereof
or a substitute or replacement therefor;
(v) reference to any Applicable Law means such Applicable Law
as amended, modified, codified, replaced or reenacted, in whole or in
part, and in effect from time to time, including rules and
regulations promulgated thereunder, and reference to any section or
other provision of any Applicable Law means that provision of such
Applicable Law from time to time in effect and constituting the
substantive amendment, modification, codification, replacement or
reenactment of such section or other provision;
(vi) reference in any Operative Document to any Article,
Section, Appendix, Schedule or Exhibit means such Article or Section
thereof or Appendix, Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar
import shall be deemed references to an Operative Document as a whole
and not to any particular Article, Section or other provision
thereof;
(viii) "including" (and with correlative meaning "include")
means including without limiting the generality of any description
preceding such term;
(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time, "from"
means "from and including" and "to" means "to but excluding".
B. Accounting Terms. In each Operative Document, unless expressly
otherwise provided, accounting terms shall be construed and interpreted,
and accounting determinations and computations shall be made, in accordance
with GAAP.
C. Conflict in Operative Documents. If there is any conflict between
any Operative Documents, such Operative Document shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to
the extent (and only to the extent) of such conflict, the Lease shall
prevail and control.
D. Legal Representation of the Parties. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any
rule of construction or interpretation otherwise requiring the Operative
Document to be construed or interpreted against any party shall not apply
to any construction or interpretation hereof or thereof.
E. Defined Terms. Unless a clear contrary intention appears, terms
defined herein have the respective indicated meanings when used in each
Operative Document. All capitalized terms used in the Operative Documents
but not otherwise defined in this Appendix 1 shall have the meanings, where
applicable, given to such terms in the Credit Agreement (as defined
herein).
"Acquisition Date" means (i) with respect to any Property, the
Funding Date on which the Lessor acquires title to, or a leasehold interest
in, the Land constituting a part of such Property, (ii) with respect to any
Equipment and Systems, the first Funding Date on which the Lessor acquires
any asset constituting such Equipment and Systems and (iii) with respect to
any Other Asset not constituting Equipment and Systems, the Funding Date on
which the Lessor acquires title to such Other Asset.
"Additional Payment Date" means any of the following: each Base Date,
the last day of each Interest Period which does not end on a Scheduled
Payment Date, and each Expiration Date.
"Advance" means an advance of funds by the Lessor pursuant to Article
III of the Lease.
"Advance Amount" is defined in Article I of each Liquidity Asset
Purchase Agreement.
"Affiliate" means, when used with respect to any Person, any other
Person directly or indirectly Controlling or Controlled by or under direct
or indirect common Control with such Person.
"Aircraft" means any Other Asset which consists of aircraft, as more
particularly described in the Lease Supplement relating thereto, together
with the Engines and any and all appliances, parts, instruments,
appurtenances, accessories, furnishings and other equipment of whatever
nature, from time to time incorporated or installed in or attached to such
aircraft.
"Alternate Base Rate" means, for any day, an interest rate equal to
the sum of the Federal Funds Effective Rate for such day plus 0.50% per
annum.
"Applicable Law" means all existing and future applicable laws,
rules, regulations, statutes, treaties, codes, ordinances, permits,
certificates, orders and licenses of and interpretations by, any
Governmental Authority, and applicable judgments, decrees, injunctions,
writs, orders or like action of any court, arbitrator or other
administrative, judicial or quasi-judicial tribunal or agency of competent
jurisdiction (including Environmental Laws) and those pertaining to the
construction, use or occupancy of each Leased Asset) and any restrictive
covenant or deed restriction or easement of record affecting any Property.
"Appraisal" means (i) with respect to any Property or any portion
thereof, an appraisal, prepared by a reputable appraiser selected by the
Lessor, of such Property or such portion as if improved in accordance with
the Plans and Specifications, which in the judgment of counsel to the
Lessor, complies with all of the provisions of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, as amended, the rules and
regulations adopted pursuant thereto, and all other applicable Requirements
of Law and, in the case of the Appraisal delivered on or prior to the
Acquisition Date for such Property, will appraise the Fair Market Sales
Value of such Property as built in accordance with the Plans and
Specifications as of Substantial Completion for such Property and as of the
seventh, eighth, ninth and tenth anniversaries of the date of the Lease,
and (ii) with respect to any Other Asset, an appraisal, prepared by a
reputable appraiser selected by the Lessor, of such Other Asset and, in the
case of the Appraisal delivered on or prior to the Acquisition Date for
such Other Asset, will appraise the Fair Market Sales Value of such Other
Asset as of the Base Date for such Other Asset and as of the seventh,
eighth, ninth and tenth anniversaries of the date of the Lease.
"Appurtenant Rights" means (i) all agreements, easements, rights of
way or use, rights of ingress or egress, privileges, appurtenances,
tenements, hereditaments and other rights and benefits at any time
belonging or pertaining to any Land or the related Improvements, including
the use of any streets, ways, alleys, vaults or strips of land adjoining,
abutting, adjacent or contiguous to such Land and (ii) all permits,
licenses and rights, whether or not of record, appurtenant to such Land.
"Architect" means the independent architect employed by Lessee in
connection with the transactions contemplated by the Lease.
"Assignment Agreement" means an agreement substantially in the form
of Exhibit A to each Liquidity Asset Purchase Agreement.
"Available Commitment" means, at any time, an amount equal to the
excess, if any, of (a) the amount of the Total Commitment of the Lessor
over (b) the aggregate original principal amount of all Advances prior to
such time.
"Base Date" with respect to each Leased Asset is defined in the Lease
Supplement for that Leased Asset.
"Base Rate Tranche" means a portion of a Lease Balance funded by a
Debt Contribution which bears interest at a fluctuating rate equal to the
Alternate Base Rate.
"Base Rent" means the amount determined under Appendix 2 to
the Lease.
"Base Term" with respect to each Leased Asset is defined in the Lease
Supplement for that Leased Asset and is subject to extension as provided in
Section 23.1 of the Lease.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the ERISA Group.
"Board" means the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Borrower Material Adverse Effect" is defined in Section 4.1(b) of
the Committed Loan Agreement and Section 4.1(b) of the Uncommitted Loan
Agreement.
"Break Costs" means an amount equal to the amount, if any, required
to compensate the Lessor, the Lenders and the Liquidity Providers for any
additional losses (including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or funds
acquired by the Lessor, the Lenders or the Liquidity Providers to fund
their respective obligations under the Operative Documents) they may
reasonably incur as a result of (x) the Lessee's payment of Rent or all or
any portion of the Lease Balance for any Property other than on a Payment
Date, (y) any Advance not being made on the date specified therefor in the
applicable Funding Request (other than as a result of a breach by the
Lessor of its obligation under Section 3.1 of the Lease to make an
Advance), or (z) as a result of any conversion of the Eurodollar Rate in
accordance with Section 26.7 or 26.8 of the Lease on any day other than a
Scheduled Payment Date. A statement as to the amount of such loss, cost or
expense, prepared in good faith and in reasonable detail and submitted by
the Lessor, a Lender or a Liquidity Provider, as applicable, to the Lessee,
shall be conclusive and binding for all purposes absent manifest error.
"Business Day" means each day which is not a day on which banks in
New York, New York or London are generally authorized or obligated, by law
or executive order, to close and is not a day on which The Depository Trust
Company is closed.
"Capitalized Commitment Fees" means, with respect to any Property or
Equipment and Systems prior to the Base Date therefor, an amount equal to
the accrued and unpaid Commitment Fees with respect to such Property or
Equipment and Systems,
respectively.
"Capitalized Interest" means, with respect to any Interest Period for
any Property or Equipment and Systems prior to the Base Date therefor, an
amount equal to the Lease Rate for such Interest Period multiplied by the
Lease Balance for such Property or Equipment and Systems, respectively,
outstanding during such Interest Period.
"Cash Collateral Account" is defined in Section 3.6 of the
Intercreditor Agreement.
"Casualty" means any damage or destruction of all or any portion of a
Leased Asset as a result of a fire or other casualty.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. xx.xx. 9601 et seq., as
amended by the Superfund Amendments and Reauthorization Act of 1986.
"Certifying Party" is defined in Section 27.1 of the Lease.
"Claims" means any and all obligations, liabilities, losses, actions,
suits, judgments, penalties, fines, claims, demands, settlements, costs and
expenses (including, without limitation, reasonable legal fees and
expenses) of any nature whatsoever.
"Closing Date" is defined in Section 4.1 of the Lease.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor statute thereto.
"Collateral" is defined in Section 2.2 of the Intercreditor
Agreement.
"Collateral Agent" means The Sumitomo Bank, Limited, New York Branch,
in its capacity as collateral agent under the Intercreditor Agreement.
"Commercial Paper" means the promissory notes of any Conduit in
physical or book-entry form issued by such Conduit in connection with the
Uncommitted Loan Agreement to which it is a party.
"Commitment" means (i) with respect to the Lessor and each Leased
Asset, the obligation of the Lessor to make Advances to the Lessee in an
aggregate principal amount not to exceed (x) the amount set forth opposite
such Leased Asset on Annex I to the Lease or (y) such other amount as is
set forth opposite the Lessor's name on its signature page for the Lease
Supplement for such Leased Asset and (ii) with respect to a Lender, the
obligation of such Lender to make Committed Loans to the Receivable
Purchaser pursuant to Section 2 of the Committed Loan Agreement.
"Commitment Fee" means the Lessor Commitment Fee and the Liquidity
Commitment Fee.
"Commitment Percentage" with respect to any Lender means the
percentage listed opposite such Lender's signature to the Committed Loan
Agreement or to an Assignment Agreement, as the case may be.
"Committed Loan Agreement" means the Committed Loan Agreement, dated
as of May 30, 1997, among the Receivable Purchaser, the financial
institutions parties thereto as lenders and the Liquidity Agent.
"Committed Loans" is defined in Section 2.1 of the Committed
Loan Agreement.
"Condemnation" means any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, access, occupancy, easement
rights or title to any Leased Asset or any part thereof, wholly or
partially (temporarily or permanently), by or on account of any actual or
threatened eminent domain proceeding or other taking of action by any
Person having the power of eminent domain, including an action by a
Governmental Authority to change the grade of, or widen the streets
adjacent to, any Property or alter the pedestrian or vehicular traffic flow
to such Property so as to result in change in access to such Property, or
by or on account of an eviction by paramount title or any transfer made in
lieu of any such proceeding or action. A "Condemnation" shall be deemed to
have occurred on the earliest of the dates that use, occupancy or title
vests in the condemning authority.
"Conduit" means each of Madison and the Other Conduit.
"Conduit Loans" is defined in Section 2.1 of each Uncommitted Loan
Agreement.
"Conduit Note" is defined in Section 2.2 of each Uncommitted
Loan Agreement.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the
Guarantor in its consolidated financial statements if such statements were
prepared as of such date.
"Construction" means, with respect to each Property, the construction
and installation of all Improvements on such Property contemplated by the
Plans and Specifications for such Property.
"Construction Agency Agreement" means the Master Construction Agency
Agreement, dated as of May 30, 1997, between the Lessor and the
Construction Agent.
"Construction Agency Agreement Event of Default" is defined in
Section 5.1 of the Construction Agency Agreement.
"Construction Agency Agreement Supplement" means, with respect to
each Property, a supplement to Construction Agency Agreement substantially
in the form of Exhibit A to the Construction Agency Agreement completed as
to such Property.
"Construction Agent" means Rite Aid Realty Corp., as construction
agent under the Construction Agency Agreement.
"Construction Documents" is defined in Section 2.4 of the
Construction Agency Agreement.
"Construction Period" means, with respect to each Property, the
period set forth in the Lease Supplement therefor.
"Contingent Rental Adjustment" means the guaranteed portion of the
Lease Balance determined in accordance with the "90%" test set forth in
FASB No. 13 which, with respect to each Leased Asset, is set forth in, or
determined pursuant to, the Lease Supplement therefor.
"Control" means (including the correlative meanings of the terms
"controlled by" and "under common control with"), as used with respect to
any Person, the possession directly or indirectly, of the power to direct
or cause the direction of the management policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"Credit Agreement" means the Credit Agreement dated as of July 19,
1996, as amended, supplemented or restated from time to time, among the
Guarantor, the lenders from time to time parties thereto and Xxxxxx
Guaranty Trust Company of New York, as agent, and any other agreement
succeeding to, superseding or replacing such agreement.
"CP Rate" means, with respect to any Interest Period, the rate
equivalent to the rate (or if more than one rate, the weighted average of
the rates) at which Commercial Paper was sold during the applicable
Interest Period (which rate shall include any fees payable to the placement
agent or dealer for such Commercial Paper); provided, however, that if the
rate (or rates) as agreed between any such agent or dealer and any Conduit
is a discount rate (or rates), the "CP Rate" for such Interest Period shall
be the rate (or if more than one rate, the weighted average of the rates)
resulting from such Conduit's converting such discount rate (or rates) to
an interest-bearing equivalent rate per annum.
"CP Tranche" means a portion of a Lease Balance funded by a Debt
Contribution made by a separate issuance of Commercial Paper, for which
there shall be no more than four different Interest Periods at any one time
outstanding.
"Debt Contribution" means that amount of Advances made by the Lessor
funded by the sale of the Purchaser's Interest to the Receivable Purchaser.
"Debt Rate" means with respect to each Interest Period (i) with
respect to CP Tranches, the CP Rate, (ii) with respect to Eurodollar
Tranches, the Eurodollar Rate plus the Liquidity Applicable Margin and
(iii) with respect to Base Rate Tranches, the Alternate Base Rate plus the
Liquidity Applicable Margin.
"Deed" means each special warrant deed with respect to Land, in
conformity with Applicable Law and appropriate for recording with the
applicable Governmental Authorities, conveying fee simple title to such
Land to the Lessor subject only to Permitted Exceptions.
"Default" means any event or condition which, with the lapse of time
or the giving of notice, or both, would constitute an Event of Default.
"Dollars" and "$" mean dollars in lawful currency of the
United States of
America.
"End Date" is defined in Section 5.1 of the Receivable
Purchase Agreement.
"Engine" means (i) each of the engines installed in any Aircraft on
such Aircraft's Acquisition Date and (ii) any aircraft engine leased
hereunder, together in either case with any and all appliances, parts,
instruments, appurtenances, accessories and other equipment of whatever
nature from time to time incorporated or installed in or attached to an
Engine.
"Environmental Audit" means, with respect to any Property, a Phase
One environmental site assessment (the scope and performance of which meets
or exceeds ASTM Standard Practice E1527-93 Standard Practice for
Environmental Site Assessments: Phase One Environmental Site Assessment
Process) of such Property.
"Environmental Law" means, whenever enacted or promulgated, any
applicable Federal, state, county or local law, statute, ordinance, rule,
regulation, license, permit, authorization, approval, covenant, criteria,
guideline, administrative or court order, judgment, decree, injunction,
code or requirement or any agreement with a Governmental Authority:
(x) relating to pollution (or the cleanup, removal, remediation
or encapsulation thereof, or any other response thereto), or the
regulation or protection of human health, safety or the environment,
including air, water, vapor, surface water, groundwater, drinking
water, land (including surface or subsurface), plant, aquatic and
animal life, or
(y) concerning exposure to, or the use, containment, storage,
recycling, treatment, generation, discharge, emission, Release or
threatened Release, transportation, processing, handling, labeling,
containment, production, disposal or remediation of any Hazardous
Substance, Hazardous Condition or Hazardous Activity.
in each case as amended and as now or hereafter in effect, and any
common law or equitable doctrine (including, without limitation,
injunctive relief and tort doctrines such as negligence, nuisance,
trespass and strict liability) that may impose liability or obligations
for injuries (whether personal or property) or damages due to or
threatened as a result of the presence of, exposure to, or ingestion of,
any Hazardous Substance, whether such common law or equitable doctrine
is now or hereafter recognized or developed. Applicable laws include,
but are not limited to, CERCLA; the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. ss. 6901 et seq.; the Federal Water Pollution
Control Act, 33 U.S.C. ss. 1251 et seq.; the Clean Air Act, 42 U.S.C.
xx.xx. 7401 et seq.; the National Environmental Policy Act, 42 U.S.C.
ss. 4321; the Refuse Act, 33 U.S.C. xx.xx. 401 et seq.; the Hazardous
Materials Transportation Act of 1975, 49 U.S.C. xx.xx. 1801-1812; the
Toxic Substances Control Act, 15 U.S.C. xx.xx. 2601 et seq.; the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. xx.xx. 136 et
seq.; the Safe Drinking Water Act, 42 U.S.C. xx.xx. 300f et seq., each
as amended and as now or hereafter in effect, and their state and local
counterparts or equivalents, including any regulations promulgated
thereunder.
"Environmental Violation" means any activity, occurrence or condition
that violates or results in non-compliance with any Environmental Law in
any material respect.
"Equipment" means equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased, leased or
otherwise acquired by the Lessee using the proceeds of Advances and now or
subsequently attached to, contained in or used or usable in any way in
connection with any operation or letting of a Property, including but
without limiting the generality of the foregoing, all screens, awnings,
shades, blinds, curtains, draperies, carpets, rugs, storm doors and
windows, heating, electrical, and mechanical equipment, lighting,
switchboards, plumbing, ventilation, air conditioning and air-cooling
apparatus, refrigerating, and incinerating equipment, escalators,
elevators, cleaning systems (including window cleaning apparatus),
sprinkler systems and other fire prevention and extinguishing apparatus and
materials, security systems, motors, engines, machinery, pipes, pumps,
tanks, conduits, fittings and fixtures of every kind and description,
provided that the term "Equipment" shall not include any of the foregoing
to the extent the same constitutes Equipment and Systems under any Lease
Supplement.
"Equipment and Systems" means, with respect to any Property, such
furniture, fixtures, equipment and computer hardware and software relating
to such Property as the Lessor and the Lessee with the approval of the
Lessor, such approval not to be unreasonably withheld, may elect to make
subject to the Lease, as evidenced by the execution and delivery of a Lease
Supplement relating thereto. The Equipment and Systems listed on any one
Lease Supplement shall collectively constitute an Other Asset and a Leased
Asset for purposes of the Lease.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor Federal statute.
"ERISA Affiliate" means each entity required to be aggregated with
the Lessee pursuant to the requirements of Section 414(b) or (c) of the
Code.
"ERISA Group" means the Lessee and all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Lessee, are treated as a
single employer under Section 414 of the Code.
"Estimated Improvement Costs" means, with respect to any Property as
of the related Acquisition Date, an amount equal to the aggregate amount
which the Construction Agent in good faith expects to be expended in order
to achieve Substantial Completion with respect to Improvements for such
Property (including (i) Capitalized Interest and Capitalized Commitment
Fees and (ii) Transactions Expenses in each case allocated with respect to
such Property during its Construction Period).
"Eurocurrency Reserve Requirements" means, for any day, the aggregate
(without duplication) of the rates (expressed as a decimal fraction) of
reserve requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves under any regulations
of the Board or other Governmental Authority having jurisdiction with
respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of the Board) maintained by a member bank of the Federal
Reserve System.
"Eurodollar Rate" means, with respect to each Interest Period, the
rate determined by the Lessor to be the rate at which Dollar deposits are
offered to the Liquidity Agent by prime banks in the London interbank
market or, if such rate is not available, the average of the rates at which
Dollar deposits are offered to the four major commercial banks last listed
on the Reuters Screen LIBO Page (or any successor page) (rounded upward, if
necessary, to the nearest multiple of one-sixteenth of one percent), in
each case at or about 11:00 a.m. (London time) two Business Days prior to
the beginning of such Interest Period for delivery on the first day of such
Interest Period for the number of days comprised therein.
"Eurodollar Tranche" means a portion of a Lease Balance funded by a
Debt Contribution made with reference to the Eurodollar Rate.
"Event of Bankruptcy" shall be deemed to have occurred with respect
to a Person if either:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding
up, or composition or readjustment of debts of such Person, the
appointment of a trustee, receiver, custodian, liquidator, assignee,
sequestrator or the like for such Person or all or substantially all
of its assets, or any similar action with respect to such Person
under any law relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts, and such case or
proceeding shall continue undismissed, or unstayed and in effect, for
a period of sixty (60) consecutive days; or an order for relief in
respect of such Person shall be entered in an involuntary case under
the federal bankruptcy laws or other similar laws now or hereafter in
effect; or
(b) such Person shall commence a voluntary case or other
proceeding under any applicable bankruptcy, insolvency,
reorganization, debt arrangement, dissolution or other similar law
now or hereafter in effect, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) for, such Person
or for any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall be
adjudicated insolvent.
"Event of Default" is defined in Section 20.1 of the Lease.
"Excess Proceeds" means, with respect to any Leased Asset, the
excess, if any, of the aggregate of all awards, compensation or insurance
proceeds payable in connection with a Casualty or Condemnation over the sum
of the Lease Balance paid by the Lessee pursuant to Articles XVIII and XIX
of the Lease with respect to such Casualty or Condemnation and all proceeds
received by the Lessor in connection with any sale of such Leased Asset
pursuant to the Lessor's exercise of remedies under Section 20.2 of the
Lease or the Lessee's exercise of the Remarketing Option under Article XXIV
of the Lease.
"Expiration Date" means, with respect to each Leased Asset, the later
of the date (x) set forth in the Lease Supplement for such Leased Asset, or
(y) the scheduled expiration of the then current Renewal Term, if any;
provided, however, that if such Leased Asset is purchased pursuant to
Section 22.2 of the Lease or the Lease Balance therefor is paid pursuant to
Section 20.2 of the Lease, then the Expiration Date shall be the date of
such purchase or payment, as the case may be.
"FAA" means the Federal Aviation Administration.
"Fair Market Sales Value" means, with respect to any Leased Asset,
the amounts, which in any event shall not be less than zero, that would be
paid in cash in an arm's-length transaction between an informed and willing
purchaser and an informed and willing seller, neither of whom is under any
compulsion to purchase or sell, respectively, for the ownership of such
Leased Asset. The Fair Market Sales Value of the Leased Assets shall be
determined based on the assumption that, except for purposes of Article XX,
the Leased Assets are in the condition and state of repair required under
Section 13.1 of the Lease and the Lessee is in compliance with the other
requirements of the Operative Documents.
"Fee Letter" means the letter agreement between the Lessor and the
Lessee dated May 30, 1997.
"Federal Funds Effective Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is
a Business Day, the average of quotations for such day on such transaction
received by the Lessor from three Federal funds brokers of recognized
standing selected by it.
"Final Payment Date" is defined in Section 5.1 of the Committed Loan
Agreement and Section 5.1 of the Uncommitted Loan Agreements.
"Fixtures" means all fixtures relating to any Improvements, including
all components thereof, located in or on such Improvements, together with
all replacements, modifications, alterations and additions thereto.
"Force Majeure Event" means any event (the existence of which was not
known and could not have been discovered through the exercise of due
diligence by the Construction Agent prior to the relevant Acquisition Date)
beyond the control of the Construction Agent, including, but not limited
to, strikes, lockouts, adverse soil conditions, acts of God, adverse
weather conditions, inability to obtain labor or materials, government
activities, civil commotion and enemy action; but excluding any event,
cause or condition that results from the Construction Agent's financial
condition or failure to pay or any event, cause or condition which could
have been avoided or which could be remedied through the exercise of
commercially reasonable efforts or the commercially reasonable expenditure
of funds.
"Funded Amount" means, with respect to any Liquidity Provider, the
sum of such Liquidity Provider's outstanding Committed Loans under the
Committed Loan Agreement plus such Liquidity Provider's outstanding Advance
Amount under each Liquidity Asset Purchase Agreement.
"Funding Date" is defined in Section 3.2(a) of the Lease.
"Funding Office" means the office of the Lessor identified on its
signature page to the Lease as its Funding Office.
"Funding Request" is defined in Section 3.2(a) of the Lease.
"GAAP" means United States generally accepted accounting principles
(including principles of consolidation), in effect from time to time.
"Governmental Action" means all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, written interpretations, decrees, licenses, exemptions,
publications, filings, notices to and declarations of or with, or required
by, any Governmental Authority, or required by any Applicable Law, and
shall include, without limitation, all environmental and operating permits
and licenses that are required for the full use, occupancy, zoning and
operation of any Property.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Gross Proceeds" means, with respect to any Leased Asset, all amounts
paid in connection with any Casualty or Condemnation or any sale of such
Leased Asset pursuant to Lessor's exercise of remedies under Section 20.2
of the Lease or the Lessee's exercise of the Remarketing Option under
Article XXIV of the Lease, and all interest earned thereon, less the
expense of claiming and collecting such amounts, including all costs and
expenses in connection therewith for which the Lessor is entitled to be
reimbursed pursuant to the Lease.
"Ground Lease" means each Ground Lease pursuant to which the Lessor
acquires a leasehold interest in any Land, substantially in the form of
Exhibit B to the Lease, or in such other form as Lessor and Lessee may
otherwise mutually agree.
"Guarantor" means Rite Aid Corporation.
"Guaranty" means the Guaranty, dated as of May 30, 1997, from the
Guarantor to the Lessor.
"Hazardous Activity" means any activity, process, procedure or
undertaking that directly or indirectly (i) produces, generates or creates
any Hazardous Substance; (ii) causes or results in (or threatens to cause
or result in) the Release of any Hazardous Substance into the environment
(including air, water vapor, surface water, groundwater, drinking water,
land (including surface or subsurface), plant, aquatic and animal life);
(iii) involves the containment or storage of any Hazardous Substance; or
(iv) would be regulated as hazardous waste treatment, storage or disposal
within the meaning of any Environmental Law.
"Hazardous Condition" means any condition that materially violates or
threatens to materially violate, or that results in or threatens material
noncompliance with, any Environmental Law.
"Hazardous Substance" means any of the following: (i) any petroleum
or petroleum product, explosives, radioactive materials, asbestos,
ureaformaldehyde, polychlorinated biphenyls, lead and radon gas; (ii) any
substance, material, product, derivative, compound or mixture, mineral,
chemical, waste, gas, medical waste, or pollutant, in each case whether
naturally occurring, man-made or the by-product of any process, that is
toxic, harmful or hazardous to the environment or human health or safety,
as defined under any Environmental Law; or (iii) any substance, material,
product, derivative, compound or mixture, mineral, chemical, waste, gas,
medical waste or pollutant that would support the assertion of any claim
under any Environmental Law, whether or not defined as hazardous as such
under any Environmental Law.
"Impositions" means any and all liabilities, losses, expenses and
costs of any kind whatsoever for fees, taxes, levies, imposts, duties,
charges, assessments or withholdings of any nature whatsoever ("Taxes")
(including, without limitation, (i) real and personal property taxes,
including personal property taxes on any property covered by the Lease that
is classified by Governmental Authorities as personal property, and real
estate or ad valorem taxes in the nature of property taxes; (ii) sales
taxes, use taxes and other similar taxes (including rent taxes and
intangibles taxes); (iii) any excise taxes; (iv) real estate transfer
taxes, conveyance taxes, mortgage taxes, intangible taxes, stamp taxes and
documentary recording taxes and fees; (v) taxes that are or are in the
nature of franchise, income, value added, gross receipts, privilege and
doing business taxes, license and registration fees; and (vi) assessments
on any Leased Asset, including all assessments for public improvements or
benefits, whether or not such improvements are commenced or completed prior
to the relevant Expiration Date), and in each case all interest, additions
to tax and penalties thereon, which at any time may be levied, assessed or
imposed by any foreign or Federal, state or local authority upon or with
respect to (a) any Indemnitee by reason of a Leased Asset or any Operative
Document, any Leased Asset or any part thereof or interest therein, or the
Lessee or any sublessee or user of any Leased Asset by reason of such
sublease or use; (b) the financing, refinancing, demolition, construction,
substitution, subleasing, assignment, control, condition, occupancy,
servicing, maintenance, repair, ownership, possession, purchase, rental,
lease, activity conducted on, delivery, insuring, use, operation,
improvement, transfer, return or other disposition of such Leased Asset or
any part thereof or interest therein; (c) indebtedness with respect to any
Leased Asset or any part thereof or interest therein or transfer thereof;
(d) the rentals, receipts or earnings arising from any Leased Asset or any
part thereof or interest therein; (e) the Operative Documents or any
payment made or accrued pursuant thereto; (f) the income or other proceeds
received with respect to any Leased Asset or any part thereof or interest
therein upon the sale or disposition thereof; (g) any contract (including
the Construction Agency Agreement) relating to the construction,
acquisition or delivery of the Improvements or any part thereof or interest
therein; or (h) otherwise in connection with the transactions contemplated
by the Operative Documents.
Notwithstanding anything in the first paragraph of this definition
(except as provided in the final paragraph of this definition) the term
"Imposition" shall not mean or include:
(i) Taxes and impositions (other than Taxes that are, or are in
the nature of, sales, use, rental, transfer or property taxes) that
are imposed under the Code, the Maryland income tax on corporations
or by any Governmental Authority and that are based upon or measured
by net income;
(ii) any Tax or imposition to the extent, but only to such
extent, it relates to any act, event or omission that occurs, or
relates to a period, after the termination of the Lease (but not any
Tax or imposition that relates to any period prior to the termination
of the Lease with respect to the Leased Asset to which such
Imposition relates);
(iii) any Tax or imposition for so long as, but only for so
long as, it is being contested in accordance with the provisions of
Section 26.4(b) of the Lease, provided that the foregoing shall not
limit the Lessee's obligation under Section 26.4(b) of the Lease to
advance to such Indemnitee amounts with respect to Taxes that are
being contested in accordance with Section 26.4(b) of the Lease or
any expenses incurred by such Indemnitee in connection with such
contest;
(iv) any interest or penalties imposed on an Indemnitee as a
result of a breach by such Indemnitee of its obligations under
Section 26.4(e) of the Lease or otherwise as a result of an
Indemnitee's failure to file any return or other documents timely and
as prescribed by applicable law; provided that this clause (iv) shall
not apply (x) if such interest or penalties arise as a result of a
position taken (or requested to be taken) by the Lessee in a contest
controlled by the Lessee under Section 26.4(b) of the Lease or (y) if
such failure is attributable to a failure by the Lessee to fulfill
its obligations under the Lease with respect to any such return;
(v) any Taxes or impositions imposed upon an Indemnitee with
respect to any voluntary transfer, sale or other voluntary
disposition of any interest in any Leased Asset or any part thereof,
or from any sale, assignment, transfer or other disposition of any
interest in an Indemnitee or any Affiliate thereof, (other than any
transfer in connection with (1) the exercise by the Lessee of its
Purchase Option or any termination option or other purchase of any
Leased Asset by the Lessee, (2) the occurrence of an Event of
Default, (3) a Casualty or Condemnation affecting any Leased Asset or
(4) any sublease, modification or addition to any Leased Asset by the
Lessee);
(vi) any Taxes or impositions imposed on an Indemnitee, to the
extent such Indemnitee actually receives a credit (or otherwise has a
reduction in a liability for Taxes) in respect thereof against Taxes
that are not indemnified under the Lease;
(vii) any Taxes imposed against or payable by an Indemnitee
resulting from, or that would not have been imposed but for, the
gross negligence or willful misconduct of such Indemnitee;
(viii)Taxes imposed on or payable by an Indemnitee to the
extent such Taxes would not have been imposed but for a breach by
such Indemnitee or any Affiliate thereof of any representations,
warranties or covenants set forth in the Operative Documents (unless
such breach is caused by the Lessee's breach of its representations,
warranties or covenants set forth in the Operative Documents);
(ix) Taxes to the extent resulting from such Indemnitee's
failure to comply with the provisions of Section 26.4(b) of the
Lease, which failure precludes or materially adversely affects the
ability to conduct a contest pursuant to Section 26.4(b) of the Lease
(unless such failure is caused by the Lessee's breach of its
obligations);
(x) Taxes which are included in Property Improvements Cost,
Land Acquisition Cost or Other Asset Acquisition Cost if and to the
extent actually paid;
(xi) Taxes that would have been imposed in the absence of the
transactions contemplated by the Operative Documents and Taxes
imposed on or with respect to or payable as a result of activities of
an Indemnitee or Affiliate thereof unrelated to the transactions
contemplated by the Operative Documents;
(xii) Taxes imposed on or with respect to or payable by an
Indemnitee resulting from, or that would not have been imposed but
for the existence of, any Lessor Lien created by or through such
Indemnitee or an Affiliate thereof and not caused by acts or
omissions of the Lessee, unless required to be removed by the Lessee;
(xiii)Any Tax imposed against or payable by an Indemnitee to
the extent that the amount of such Tax exceeds the amount of such Tax
that would have been imposed against or payable by such Indemnitee
(or, if less, that would have been subject to indemnification under
Section 26.4 of the Lease) if such Indemnitee were not a direct or
indirect successor, transferee or assign of one of the original
Indemnitees; provided, however, that this exclusion (xiii) shall not
apply if such direct or indirect successor, transferee or assign
acquired its interest as a result of a transfer while an Event of
Default shall have occurred and is continuing.
"Improvements" means, with respect to each Property, all buildings,
structures, Fixtures, Equipment, and other improvements of every kind
existing at any time and from time to time (including those constructed
pursuant to the Construction Agency Agreement and those purchased with
amounts advanced by the Lessor pursuant to the Lease) on or under the Land
comprising a part of such Property, together with any and all appurtenances
to such buildings, structures or improvements, including sidewalks, utility
pipes, conduits and lines, parking areas and roadways, and including all
Modifications and other additions thereto or changes therein at any time.
"Imputed Equity Return" means, with respect to any Leased Asset, the
cost to the Lessor of maintaining its investment in such Leased Asset after
the Expiration Date applicable thereto determined by multiplying (i) the
average daily Lease Balance of such Leased Asset outstanding, (ii) the
number of days from and excluding the Expiration Date to and including the
date of sale of such Leased Asset, (iii) the Overdue Rate and (iv) 1/360.
"Indemnitee" means the Lessor, the Liquidity Agent, each Liquidity
Provider, each Conduit, the Receivable Purchaser, each Lender, the
Collateral Agent and each of their respective successors, assigns,
directors, shareholders, partners, officers, employees and agents.
"Insurance Requirements" means all terms and conditions of any
insurance policy either required by the Lease to be maintained by the
Lessee or required by the Construction Agency Agreement to be maintained by
the Construction Agent, and all requirements of the issuer of any such
policy.
"Intercreditor Agreement" means the Intercreditor and Security
Agreement, dated as of May 30, 1997, among the Lessee, the Guarantor, the
Lessor, the Receivable Purchaser, the Conduits, the Liquidity Agent, the
Paying Agent and the Collateral Agent.
"Interest Period" means, with respect to any Advance:
(1) With respect to the Lessor Contribution and Eurodollar
Tranches of the Debt Contribution,
(a) initially, the period commencing on the Funding Date with
respect to any Advance and ending on the next following Scheduled
Payment Date; and
(b) thereafter, each period commencing on one Scheduled Payment
Date and ending on the next following Scheduled Payment Date;
(2) With respect to each CP Tranche of the Debt Contribution, the
period obtained by a Conduit for such CP Tranche;
provided that, the foregoing provisions relating to Interest
Periods are subject to the
following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of Eurodollar
Tranches, the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
and
(ii) any Interest Period that would otherwise extend beyond the
Expiration Date for the Leased Asset funded by such Advance shall end
on such Expiration Date.
"Land" means each parcel of real property described on a Lease
Supplement executed and delivered under the Lease and all Appurtenant
Rights attached thereto.
"Land Acquisition Cost" means, with respect to any Property, the
amount of the Advance funded for the purpose of acquiring title to the Land
comprising a part of such Property and paying Transaction Expenses relating
to such acquisition.
"Lease" means the Master Lease and Security Agreement, dated as of
May 30, 1997, between the Lessor and the Lessee.
"Lease Balance" means, with respect to each Leased Asset, as of any
date of determination, the sum of all Advances for such Leased Asset made
under the Lease on or before such date less the sum of all Monthly
Amortization paid by the Lessee with respect thereto on or before such
date.
"Lease Rate" means the weighted average of the Lessor Rate plus the
Debt Rate.
"Lease Receivable" is defined in Section 2.1 of the Receivable
Purchase Agreement.
"Lease Supplement" means, with respect to each Leased Asset, a lease
supplement substantially in the form of Exhibit G-1, G-2 or G-3 to the
Lease duly completed as to such Leased Asset.
"Leased Asset" means each Property and each Other Asset subject to
the Lease.
"Lender" is defined in the preamble of the Committed Loan
Agreement.
"Lender Note" is defined in Section 2.2 of the Committed Loan
Agreement.
"Lessee" means Rite Aid Realty Corp.
"Lessor" means Sumitomo Bank Leasing and Finance, Inc., as lessor
under the Lease.
"Lessor Applicable Margin" is set forth and determined in accordance
with Appendix 2 to the Lease.
"Lessor Commitment Fee" is set forth and determined in accordance
with Appendix 2 to the Lease.
"Lessor Contribution" means that amount of outstanding Advances made
by the Lessor and funded by the Lessor otherwise than through the sale of
the Purchaser's Interest to the Receivable Purchaser.
"Lessor Lien" means any Lien, true lease or sublease or disposition
of title arising as a result of (a) any claim against the Lessor not
resulting from the transactions contemplated by the Operative Documents,
(b) any act or omission of the Lessor which is not required by the
Operative Documents or is in violation of any of the terms of the Operative
Documents, (c) any claim against the Lessor with respect to Taxes or
Transaction Expenses against which Lessee is not required to indemnify
Lessor pursuant to the Lease or (d) any claim against the Lessor arising
out of any transfer by the Lessor of all or any portion of the interest of
the Lessor in any Leased Asset or the Operative Documents other than the
transfer of title to or possession of any Property by the Lessor pursuant
to and in accordance with the Lease or pursuant to the exercise of the
remedies set forth in Article XX of the Lease.
"Lessor Rate" means, with respect to each Interest Period, the
Eurodollar Rate plus the Lessor Applicable Margin and, to the extent that
the Eurodollar Rate is unavailable for any reason during such Interest
Period, the Alternate Base Rate plus the Lessor Applicable Margin.
"Lien" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, easement, servitude or charge of any kind, including,
without limitation, any irrevocable license, conditional sale or other
title retention agreement, any lease in the nature thereof, or any other
right of or arrangement with any creditor to have its claim satisfied out
of any specified property or asset with the proceeds therefrom prior to the
satisfaction of the claims of the general creditors of the owner thereof,
whether or not filed or recorded, or the filing of, or agreement to execute
as "debtor", any financing or continuation statement under the Uniform
Commercial Code of any jurisdiction or any federal, state or local lien
imposed pursuant to any Environmental Law.
"Liquidity Agent" means The Sumitomo Bank, Limited, New York Branch,
in its capacity as agent under the Committed Loan Agreement and the
Liquidity Asset Purchase Agreement.
"Liquidity Applicable Margin" is set forth and determined in
accordance with Appendix 2 to the Lease.
"Liquidity Asset Purchase Agreement" means each of (i) the Liquidity
Asset Purchase Agreement, dated as of May 30, 1997, among Madison, the
Liquidity Providers and the Liquidity Agent and (ii) any other liquidity
asset purchase agreement, substantially in the form of such Liquidity Asset
Purchase Agreement, entered into among the Other Conduit, the Liquidity
Providers and the Liquidity Agent with respect to the transactions
contemplated by the Receivable Purchase Agreement.
"Liquidity Commitment Fee" is set forth and determined in accordance
with Appendix 2 to the Lease.
"Liquidity Providers" means each party identified as such in a
Liquidity Asset Purchase Agreement and each party that becomes a liquidity
provider pursuant to an Assignment Agreement (it being understood that the
term "Liquidity Providers" as used in the Lease shall include such Persons
in their capacity as Lenders).
"Loan" means a Committed Loan or a Conduit Loan.
"Loan Commitment Period" means the period from the Closing Date until
May 28, 1998, as such period may be extended from time to time pursuant to
the Committed Loan Agreement and each Liquidity Asset Purchase Agreement
(provided that in no event shall the Loan Commitment Period extend beyond
the last expiring Base Term).
"Loan Event of Default" is defined in Section 6.1 of the Committed
Loan Agreement and Section 6.1 of the Uncommitted Loan Agreement.
"Loan Potential Event of Default" is defined in Section 7.5 of the
Committed Loan Agreement.
"Madison" means Madison Funding Corporation.
"Marketing Period" means, with respect to any Leased Asset, the
period commencing on the date six months prior to the Expiration Date for
such Leased Asset and ending on the Expiration Date for such Leased Asset.
"Maximum Amount" is defined in Section 3.6 of the Intercreditor
Agreement.
"Modifications" is defined in Section 14.1(a) of the Lease.
"Monthly Amortization" means, with respect to any month during the
Base Term of any Leased Asset, the amount of amortization specified for
such month in the Lease Supplement for such Leased Asset.
"Mortgage" means, with respect to any Property, a memorandum of Lease
and deed of trust, substantially in the form of Exhibit C to the Lease,
sufficient to create in the opinion of the lessor a first priority lien on
such Property.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member
of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period.
"Operative Documents" means the following:
(a) the Lease;
(b) the Construction Agency Agreement;
(c) the Guaranty;
(d) each Lease Supplement;
(e) each Construction Agency Agreement Supplement;
(f) each Deed;
(g) each Ground Lease, if any;
(h) each Mortgage, if any;
(i) the Receivable Purchase Agreement;
(j) each Uncommitted Loan Agreement;
(k) the Conduit Notes;
(l) the Committed Loan Agreement;
(m) the Lender Note;
(n) each Liquidity Asset Purchase Agreement;
(o) the Intercreditor Agreement; and
(p) each Funding Request.
"Other Asset" means any asset, other than Property, which the Lessor
and the Lessee mutually agree is to be acquired by the Lessor and leased to
the Lessee under the Lease.
"Other Asset Acquisition Cost" means (i) with respect to any
Equipment and Systems, the aggregate amount of (x) Advances made for the
purpose of acquiring title to assets constituting such Equipment and
Systems and paying the Transaction Expenses relating to such acquisition
and (y) Advances made for Capitalized Interest or for Capitalized
Commitment Fees relating to such Equipment and Systems during the
Construction Period for the related Property and (ii) with respect to any
Other Asset not constituting Equipment and Systems, the amount of the
Advance funded for the purpose of acquiring title to such Other Asset and
paying Transaction Expenses relating to such acquisition.
"Other Conduit" means a commercial paper conduit which (i) is
sponsored by The Sumitomo Bank, Limited, (ii) has been approved by the
Lessee and (iii) has agreed to be bound by all the terms and provisions of
the Intercreditor Agreement.
"Outside Completion Date" with respect to each Property is defined in
the Lease Supplement therefor.
"Overdue Rate" means the Lease Rate plus 2.00%.
"Participant" means each Lender, each Conduit and the Lessor.
"Paying Agent" means Sumitomo Bank of New York Trust Company, a New
York limited purpose trust company.
"Payment Date" means each Scheduled Payment Date and each Additional
Payment Date.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Investments" means any one or more of the following types
of investments:
(a) marketable obligations of, or obligations guaranteed as to
principal and interest by, the United States or an agency or
instrumentality thereof when such obligations are backed by the full
faith and credit of the United States, in each case having a maturity
of not more than thirty (30) days from the date of acquisition;
(b) bankers' acceptances and certificates of deposit and other
interest-bearing obligations denominated in Dollars and issued by any
bank with capital, surplus and undivided profits aggregating at least
$100,000,000, the short-term unsecured senior debt obligations of
which are rated by Standard & Poor's and Xxxxx'x Investors Service,
Inc. (the "Rating Agencies") at least as highly as the Commercial
Paper, in each case having a maturity of not more than thirty (30)
days from the date of acquisition;
(c) repurchase obligations with a term of not more than one
year for underlying securities of the types described in clauses (a)
and (b) above entered into with any counterparty whose short-term
unsecured senior debt obligations are rated by the Rating Agencies at
least as highly as the Commercial Paper;
(d) commercial paper having a maturity of not more than thirty
(30) days rated by the Rating Agencies at least as highly as the
Commercial Paper; and
(e) freely redeemable shares in money market funds which invest
solely in obligations, bankers' acceptances, certificates of deposit,
repurchase agreements and commercial paper of the types described in
clauses (a) through (d), without regard to the limitations as to the
maturity of such obligations, bankers' acceptances, certificates of
deposit, repurchase agreements or commercial paper set forth in such
clauses, rated by the Rating Agencies at least as highly as the
Commercial Paper.
"Permitted Liens" means, with respect to any Leased Asset:
(i) the respective rights and interests of the parties
to the Operative Documents as provided in the Operative Documents;
(ii) the rights of any sublessee or assignee under a sublease
or an assignment expressly permitted by the terms of the Lease;
(iii) Liens for Taxes that either are not yet payable or are
being contested in accordance with the provisions of Section 16.1 of
the Lease.
(iv) Liens arising by operation of law, materialmen's,
mechanics', workers', repairmen's, employees', carriers',
warehousemen's and other like Liens relating to the construction of
the Improvements or in connection with any Modifications or arising
in the ordinary course of business for amounts that either are not
more than sixty (60) days past due or are being diligently contested
in good faith by appropriate proceedings, so long as such proceedings
satisfy the conditions for the continuation of proceedings to contest
Taxes set forth in Section 16.1 of the Lease;
(v) Liens of any of the types referred to in clause (iv) above
that have been bonded for not less than the full amount in dispute
(or as to which other security arrangements satisfactory to the
Lessor have been made), which bonding (or arrangements) shall comply
with applicable Requirements of Law, and has effectively stayed any
execution or enforcement of such Liens;
(vi) Liens arising out of judgments or awards with respect to
which appeals or other proceedings for review are being prosecuted in
good faith and for the payment of which adequate reserves have been
provided as required by GAAP or other appropriate provisions have
been made, so long as such proceedings have the effect of staying the
execution of such judgments or awards and satisfy the conditions for
the continuation of proceedings to contest set forth in Section 16.1
of the Lease;
(vii) easements, rights of way and other encumbrances on title
to real property pursuant to Section 15.2 of the Lease;
(viii) Lessor Liens;
(ix) Liens created by the Lessee with the consent of
the Lessor; and
(x) Liens described on each title insurance policy delivered
pursuant to the Lease other than Liens described in clause (iv) or
(vi) above that are not removed within sixty (60) days of their
origination.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, governmental authority, limited liability company or any
other entity.
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Code and either (i)
is maintained, or contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has at any time within
the preceding five (5) years been maintained, or contributed to, by any
Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.
"Plans and Specifications" means, with respect to any Property, the
plans and specifications for the Construction of the Improvements to such
Property, as more particularly described in Schedule 2 to the Construction
Agency Agreement Supplement for such Property, as such may be amended from
time to time in accordance with the Construction Agency Agreement.
"Prime Construction Contract" means, with respect to each Property,
each contract between the Construction Agent and the Prime Contractor for
such Property, as it may be amended from time to time in accordance with
the Construction Agency Agreement.
"Prime Contractor" means, with respect to each Property, the
contractor designated as such in each Prime Construction Contract for such
Property or such other Person who shall, with the prior consent of the
Lessor, have been designated by the Lessee to act as the general contractor
for purposes of the Construction of the Improvements to such Property.
"Pro Rata Basis" means, with respect to any Participant, the ratio,
expressed as a percentage, of (i) such Participant's outstanding Committed
Loans, in the case of a Lender, outstanding Conduit Loans, in the case of a
Conduit, or outstanding Lessor Contribution, in the case of the Lessor, to
(ii) the sum of all outstanding Advances.
"Property" means (i) the Lessor's interest in any Land subject to the
Lease and (ii) all of the Improvements at any time located on or under such
Land.
"Property Improvement Costs" means, with respect to any Property, the
aggregate amount of (i) Advances funded to the Construction Agent for such
Property for the purpose of constructing Improvements on such Property and
paying the Transaction Expenses relating to such funding and construction
and (ii) Advances made for Capitalized Interest or for Capitalized
Commitment Fees relating to such Property during the Construction Period
for such Property.
"Purchase Notice" is defined in Section 22.1 of the Lease.
"Purchase Option" is defined in Section 22.1 of the Lease.
"Purchase Option Price" is defined in Section 22.1 of the
Lease.
"Purchase Price" is defined in Section 1.2(b) of the Receivable
Purchase Agreement.
"Purchaser's Interest" is defined in Section 2.1 of the Receivable
Purchase Agreement.
"Receivable Purchaser" means RA Funding Corporation, a Delaware
corporation;
"Receivable Purchase Agreement" means the Lease Receivable Purchase
Agreement dated as of May 30, 1997 between the Receivable Purchaser and the
Lessor.
"Release" means any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge,
disposal or emission of a Hazardous Substance.
"Release Date" is defined in Section 2.3 of the Intercreditor
Agreement.
"Relevant Percentage" means, with respect to any Advance, the
percentage of such Advance to be funded by the sale of the Purchaser's
Interest pursuant to the Receivable Purchase Agreement, as designated in
the Lease Supplement for the Leased Asset to which such Advance relates.
"Remarketing Option" is defined in Section 24.1 of the Lease.
"Renewal Option" is defined in Section 23.1 of the Lease.
"Renewal Term" has the meaning set forth in Section 23.1 of
the Lease.
"Rent" means, collectively, Capitalized Interest, the Base Rent and
the Supplemental Rent, in each case payable under the Lease.
"Requesting Party" is defined in Section 27.1 of the Lease.
"Required Lenders" is defined in Section 8.1 of the Committed
Loan Agreement.
"Required Participants" means Participants with an aggregate
Voting Percentage in excess of 66 %.
"Required Modification" is defined in Section 14.1 of the
Lease.
"Requirement of Law" means all Federal, state, county, municipal and
other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting any Leased asset or the
demolition, construction, use or alteration thereof, whether now or
hereafter enacted and in force, including any that require repairs,
modifications or alterations in or to such Leased Asset or in any way limit
the use and enjoyment thereof (including all building, zoning and fire
codes and the Americans with Disabilities Act of 1990, 42 U.S.C. ss. 1201
et seq. and any other similar Federal, state or local laws or ordinances
and the regulations promulgated thereunder) and any that may relate to
environmental requirements (including all Environmental Laws), and all
permits, certificates of occupancy, licenses, authorizations and
regulations relating thereto, and all covenants, agreements, restrictions
and encumbrances contained in any instruments which are either of record or
known to the Lessee affecting any Property, the Appurtenant Rights and any
easements, licenses or other agreements entered into pursuant to Section
15.2 of the Lease.
"Responsible Employee" means, with respect to any Person, the
Chairman, the President, any Vice President, the Controller or the
Treasurer of such Person.
"Responsible Employee's Certificate" means, with respect to any
Person, a certificate signed by any Responsible Employee of such Person,
which certificate shall certify as true and correct the subject matter
being certified to in such certificate.
"Scheduled Payment Date" means the fifteenth (15th) day of each
calendar month.
"Secured Obligations" is defined in Section 2.2 of the
Intercreditor Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Security Documents" means the collective reference to the Mortgage
and all other security documents now or hereafter delivered to the Lessor
granting a Lien on any asset or assets of any Person to secure the
obligations and liabilities of the Lessee under the Lease and the other
Operative Documents.
"Significant Condemnation" means (a) a Condemnation that involves a
taking of Lessor's entire leasehold interest in or to any Land or Lessee's
entire title to such Land, or (b) a Condemnation that in the reasonable,
good faith judgment of the Lessor either (i) renders any Property
unsuitable for continued use as property of the type of such Property
immediately prior to such Condemnation or (ii) is such that restoration of
any Property (other than Land) to substantially its condition as existed
immediately prior to such Condemnation would be impracticable or impossible
to effect.
"Significant Subsidiary" means at any time (i) the Lessee and (ii)
any Subsidiary or any group of Subsidiaries having consolidated assets,
individually or in the aggregate, equal to or greater than 8% of the
consolidated assets of the Borrower and its Consolidated Subsidiaries at
such time.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by the
Guarantor.
"Substantial Completion" means, with respect to any Property, such
time as the conditions set forth in Article V of the Lease are satisfied
for such Property.
"Supplemental Rent" means all amounts, liabilities and obligations
(other than Capitalized Interest and Base Rent) which Lessee assumes or
agrees to pay to Lessor or any other Person under the Lease or under any of
the other Operative Documents, including, without limitation, Break Costs
(but without duplication of amounts due under Section 26.5 of the Lease).
"Taxes" is defined in the definition of Impositions.
"Termination Event" is defined in Section 6.1 of the Receivable
Purchase Agreement.
"Termination Notice" is defined in Section 19.1 of the Lease.
"Title Company" means, with respect to each Property, the
Person designated in the Lease Supplement therefor.
"Threshold Amount" means, with respect to each Leased Asset, an
amount equal to or greater than 10% of the Lease Balance for such Leased
Asset, but in no event less than the then effective per occurrence
deductible under the lessee's casualty insurance program.
"Total Commitment" means the aggregate of the Lessor's Commitments
for all Leased Assets.
"Transaction Expenses" means all costs and expenses incurred in
connection with the preparation, execution and delivery of the Operative
Documents and the transactions contemplated by the Operative Documents
including without limitation:
(a) the reasonable fees, out-of-pocket expenses and
disbursements of counsel for each of the Lessor, the Lessee and the
Guarantor in negotiating the terms of the Operative Documents and the
other transaction documents, preparing for the closing under, and
rendering opinions in connection with, such transactions and in
rendering other services customary for counsel representing parties
to transactions of the types involved in the transactions
contemplated by the Operative Documents, in each case subject to any
agreed upon cap on such fees;
(b) the reasonable fees, out-of-pocket expenses and
disbursements of any law firm or other external counsel, and (without
duplication) the reasonable allocated cost of internal legal services
and all disbursements of internal counsel of the Lessor, the
Receivable Purchaser, the Collateral Agent, the Conduits, the
Liquidity Agent, the Lenders and the Liquidity Providers in
connection with (1) any amendment, supplement, waiver or consent with
respect to any Operative Documents requested or approved by the
Lessee and (2) any enforcement of any rights or remedies against the
Lessee or the Guarantor in respect of the Operative Documents;
(c) any other reasonable fees, out-of-pocket expenses,
disbursements or cost of the Lessor, the Receivable Purchaser, the
Collateral Agent, the Conduits, the Liquidity Agent, the Lenders and
the Liquidity Providers related to the Operative Documents or any of
the other transaction documents;
(d) any and all Taxes and fees incurred in recording,
registering or filing any Operative Document or any other transaction
document, any deed, declaration, mortgage, security agreement, notice or
financing statement with any public office, registry or governmental
agency in connection with the transactions contemplated by the Operative
Documents;
(e) any title fees, premiums and escrow costs and other
expenses relating to title insurance and the closings contemplated by
the Operative Documents;
(f) all expenses relating to all Environmental Audits;
and
(g) all expenses relating to all Appraisals.
"UCC Financing Statements" means UCC financing statements
appropriately completed and executed for filing in the applicable
jurisdiction in order to perfect the Lessor's interest under the Lease to
the extent the Lease is a security agreement.
"Uncommitted Loan Agreement" means each of (i) the Uncommitted Loan
Agreement, dated as of May 30, 1997, between the Receivable Purchaser and
Madison and (ii) any other uncommitted loan agreement, substantially in the
form of such Uncommitted Loan Agreement, entered into between the
Receivable Purchaser and the Other Conduit.
"Uniform Commercial Code" and "UCC" mean the Uniform Commercial Code
as in effect in any applicable jurisdiction.
"Unused Lessor Commitment" means, with respect to any Leased Asset at
any time, (i) the portion of the Lessor's Commitment for such Leased Asset
expected to be funded by the Lessor Contribution less (ii) the amount of
the Lessor Contribution outstanding at such time.
"Unused Liquidity Commitment" is defined in Article I of each
Liquidity Asset Purchase Agreement; provided, however, that for purposes of
Appendix 2 to the Lease, "Unused Liquidity Commitment" means, with respect
to any Leased Asset at any time, (i) the portion of the Lessor's Commitment
for such Leased Asset expected to be funded by the Debt Contribution less
(ii) the amount of the Debt Contribution outstanding at such time funded by
Eurodollar Tranches or Base Rate Tranches.
"Voting Percentage" with respect to a Lender or the Lessor means the
ratio, expressed as a percentage, of (i) in the case of a Lender, (x) such
Lender's Commitment to (y) the Total Commitment and (ii) in the case of the
Lessor, (x) the amount by which the Total Commitment exceeds the aggregate
Commitments of all of the Lenders to (y) the Total Commitment.