<PAGE>
EXHIBIT 10.2
LEASE AGREEMENT
by and between
UH STORAGE (DE) LIMITED PARTNERSHIP,
a Delaware limited partnership
as LANDLORD
and
U-HAUL MOVING PARTNERS, INC.,
a Nevada Corporation,
as TENANT
Premises: See Schedule A attached hereto
Dated as of: March 31,2004
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S>
<C>
1. Demise of
Premises.......................................................
1
2. Certain
Definitions.....................................................
1
3. Title and
Condition; Single Lease Transaction............................
11
4. Use of Leased
Premises; Quiet Enjoyment..................................
13
5.
Term.....................................................................
15
6. Basic
Rent...............................................................
15
7. Additional
Rent.............................................. ...........
16
8. Net Lease:
Non-Terminability.............................................
17
9. Payment of
Impositions...................................................
18
10. Compliance with
Laws and Easement Agreements; Environmental Matters......
19
11. Liens;
Recording.........................................................
22
12. Maintenance and
Repair...................................................
23
13. Alterations and
Improvements.............................................
23
14. Permitted
Contests.......................................................
24
15.
Indemnification..........................................................
25
16.
Insurance................................................................
26
17. Casualty and
Condemnation................................................
30
18. Termination
Events.......................................................
31
19.
Restoration..............................................................
33
20. Procedures Upon
Purchase.................................................
34
21. Assignment and
Subletting: Prohibition against Leasehold Financing.......
35
22. Events of
Default........................................................
38
23. Remedies and
Damages Upon Default........................................
41
24.
Notices..................................................................
44
25. Estoppel
Certificate ....................................................
45
26. Surrender
...............................................................
45
27. No Merger of
Title.......................................................
46
28. Books and
Records........................................................
46
29. Determination of
Value...................................................
47
30. Non-Recourse as to
Landlord.............................................. 48
31.
Financing................................................................
49
</TABLE>
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<TABLE>
<S>
<C>
32. Subordination,
Non-Disturbance and Attornment ...........................
50
33. Tax Treatment;
Reporting ................................................
50
34. Intentionally
omitted ...................................................
50
35. Security Deposit;
Payment of Earn-out Deposit ...........................
50
36. Economic
Abandonment ....................................................
53
37. Substitution and
Exchange of Premises ...................................
54
38. Mercury Lease
...........................................................
55
39. Local Law
Provisions ....................................................
55
40. Miscellaneous
...........................................................
55
</TABLE>
Exhibit "A-1" - Legal Descriptions of each Related Premises
Exhibit "A-2" - Street Addresses of each Related Premises
Exhibit "B" -
Machinery and Equipment
Exhibit "C-1" - Schedule of Permitted Encumbrances
Exhibit "C-2" - Schedule B from each Title Pro Forma
Exhibit "D" -
Rent Schedule
Exhibit "E" -
Acquisition Costs
Exhibit "F" -
Premises Percentage Allocation of Basic Rent
Exhibit "G" -
Local Law Provisions
Exhibit "H" -
Tenant's Post Closing Environmental Obligations
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<PAGE>
LEASE
AGREEMENT, made as of March 31, 2004, between UH STORAGE (DE)
LIMITED PARTNERSHIP, a Delaware limited partnership (together with
any of its
successors and/or assigns, "Landlord"), with an address c/o W. P.
Carey & Co.
LLC, 50 Rockefeller Plaza, 2nd Floor, New York, New York 10020, and
U-HAUL
MOVING PARTNERS, INC., a Nevada corporation ("Tenant") with an
address at 2727
North Central Avenue, Phoenix, AZ 85004.
In
consideration of the rents and provisions herein stipulated to be
paid
and performed, Landlord and Tenant hereby covenant and agree as
follows:
1. Demise of Premises. Landlord hereby demises and lets to
Tenant,
and Tenant hereby takes and leases from Landlord, for the term and
upon the
provisions hereinafter specified, the following described
properties
(hereinafter referred to collectively as the "Leased Premises" and
each
individually as a "Related Premises": (a) that portion of the land
described in
Exhibit "A-1" attached hereto upon which the Improvements
containing rental
office, fleet truck and trailer parking areas and related
facilities are
located, together with the Appurtenances related thereto, and
together with a
personal easement for the benefit of Tenant (and any permitted
assignees or
sublessees of Tenant's interests hereunder) granting the right of
ingress and
egress for vehicular and pedestrian access over and through the
Common Areas
(collectively, the "Land"); (b) the buildings, structures and other
improvements
now or hereafter constructed on the Land (collectively, the
"Improvements"); and
(c) the fixtures, machinery, equipment and other property described
in Exhibit
"B" on the Land or within any Improvements thereon (collectively,
the
"Equipment").
2. Certain Definitions.
"Abandonment Date" shall mean the Abandonment Date as defined
in Paragraph 36.
"Abandonment Notice" shall mean Abandonment Notice as defined
in Paragraph 36.
"Abandonment Offer Amount" shall mean the Abandonment Offer
Amount as defined in Paragraph 36.
"Abandonment Premises" shall mean the Leased Premises or any
of the Related Premises, as applicable, abandoned pursuant to
Paragraph 36.
"Acquisition Cost" of each of the Related Premises shall mean
the amount set forth opposite such premises on Exhibit "E"
hereto.
"Additional Rent" shall mean Additional Rent as defined in
Paragraph 7.
"Affected Premises" shall mean the Affected Premises as
defined in Paragraph 18.
"Affiliate" of any Person shall mean any Person which shall
(1) control, (2) be under the control of, or (3) be under common
control with
such Person (the term "control"
<PAGE>
as used herein shall be deemed to mean ownership of more than 50%
of the
outstanding Voting Stock of a corporation, or other majority equity
and control
interest if such Person is not a corporation).
"Alterations" shall mean all changes, additions, improvements
or repairs to, all alterations, reconstructions, renewals,
replacements or
removals of and all substitutions or replacements for any of the
Improvements or
Equipment, both interior and exterior, structural and
non-structural, and
ordinary and extraordinary.
"Appurtenances" shall mean all tenements, hereditaments,
easements, rights-of-way, rights, privileges in and to the Land,
including (a)
easements over other lands granted by any Easement Agreement and
(b) any
streets, ways, alleys, sidewalks, driveways, curbs vaults, gores or
strips of
land adjoining the Land.
"Assignment" shall mean any assignment of rents and leases
from Landlord to a Lender which (a) encumbers any of the Leased
Premises and (b)
secures Landlord's obligation to repay a Loan, as the same may be
amended,
supplemented or modified from time to time, in any case, whether
pursuant to a
separate agreement or as part of a Mortgage.
"Assignment and Assumption of Lease Agreement" shall mean that
certain Assignment and Assumption Agreement dated as of the date
hereof by and
between Tenant and Mercury Tenant.
"Assignment and Assumption of Dealership Agreement" shall
collectively mean that Assignment and Assumption of Dealership
Agreement by and
among Tenant, Landlord and U-Haul Leasing & Sales Co. and that
Assignment and
Assumption of Dealership Agreement by and among Tenant, Mercury
Tenant and
U-Haul Leasing & Sales Co., each dated as of the date
hereof.
"Assignment and Subordination of Management Agreement" shall
mean that certain Assignment and Subordination of Management
Agreement dated as
of the date hereof by and among Mercury, Landlord and Manager and
any future
assignment and subordination of management agreement by and among
Mercury,
Manager and Landlord, which future assignment and subordination of
management
agreement shall be in form and substance reasonably acceptable to
each party
thereto.
"Automatic Renewal Notice" shall mean Automatic Renewal Notice
as defined in Paragraph 5.
"Basic Rent" shall mean Basic Rent as defined in Paragraph 6.
"Basic Rent Payment Dates" shall mean the Basic Rent Payment
Dates as defined in Paragraph 6.
"Casualty" shall mean any loss of or damage to or destruction
of or which affects the Leased Premises or Appurtenances or which
arises from
the Appurtenances.
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<PAGE>
"Combined Property" shall mean Combined Property as defined in
Paragraph 16(b).
"Commencement Date" shall mean Commencement Date as defined in
Paragraph 5.
"Common Areas" shall mean (i) the applicable area or areas
located upon or comprising a portion of each Related Premises
necessary for
Tenant and/or its employees, customers, contractors and invitees to
enjoy
vehicular and pedestrian ingress and/or egress to and from any
Improvements
thereon (whether leased to Tenant hereunder or Mercury under the
Mercury Lease)
from (A) any public street adjoining the Land or (B) any office or
general
parking areas located upon or constituting a portion of the land
and
improvements demised to Tenant under this Lease and (ii) any other
areas within
the land described on Exhibit "A-1" attached hereto and not demised
to Mercury
under the Mercury Lease.
"Condemnation" shall mean a Taking and/or a Requisition.
"Condemnation Notice" shall mean written notice of the
relevant condemning authority, of the institution of or intention
to institute
any proceeding for Condemnation.
"Corresponding Mercury Premises" shall mean the real property
and improvements demised pursuant to the Mercury Lease and located
contiguously
to, and at the same street address as, the applicable Related
Premises, Affected
Premises, Exchange Premises or Abandonment Premises, as the context
shall
require, demised hereunder to Tenant.
"Costs" of a Person or associated with a specified transaction
shall mean all reasonable out-of-pocket costs and expenses incurred
by such
Person or associated with such transaction, including without
limitation,
attorneys' fees and expenses, court costs, brokerage fees, escrow
fees, title
insurance premiums, recording fees and transfer taxes, as the
circumstances
require.
"CPI" shall mean CPI as defined in Exhibit "D" hereto.
"Dealership Agreement" shall mean that certain Dealership
Agreement by and between Tenant and U-Haul Leasing & Sales Co.
dated as of the
date hereof.
"Default Rate" shall mean the Default Rate as defined in
Paragraph 7(a)(iv).
"Earn-Out Deposit" shall mean Earn-Out Deposit as defined in
Paragraph 35.
"Easement Agreement" shall mean any conditions, covenants,
restrictions, easements, declarations, and other similar agreements
burdening or
benefiting any Related Premises and listed as Permitted
Encumbrances or as may
hereafter affect the Land comprising any Related Premises or the
use or
occupancy of any Related Premises and bind Landlord and/or any
future fee owner
of any Related Premises.
-3-
<PAGE>
"Environmental Law" shall mean (i) whenever enacted or
promulgated, any applicable federal, state, foreign and local law,
statute,
ordinance, rule, regulation, license, permit, authorization,
approval, consent,
court order, judgment, decree, injunction, code, requirement or
agreement with
any governmental entity, (x) relating to pollution (or the cleanup
thereof), or
the protection of air, water vapor, surface water, groundwater,
drinking water
supply, land (including land surface or subsurface), plant, aquatic
and animal
life from injury caused by a Hazardous Substance or (y) concerning
exposure to,
or the use, containment, storage, recycling, reclamation, reuse,
treatment,
generation, discharge, transportation, processing, handling,
labeling,
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 (ii) 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 or
injuries or damages due to or threatened as a result of the
presence of,
exposure to, or ingestion of, any Hazardous Substance. The term
Environmental
Law includes, without limitation, the federal Comprehensive
Environmental
Response Compensation and Liability Act of 1980, the Superfund
Amendments and
Reauthorization Act, the federal Water Pollution Control Act, the
federal Clean
Air Act, the federal Clean Water Act, the federal Resources
Conservation and
Recovery Act of 1976 (including the Hazardous and Solid Waste
Amendments to
RCRA), the federal Solid Waste Disposal Act, the federal Toxic
Substance Control
Act, the federal Insecticide, Fungicide and Rodenticide Act, the
federal
Occupational Safety and Health Act of 1970, the federal National
Environmental
Policy Act and the federal Hazardous Materials Transportation Act,
each as
amended and as now or hereafter in effect and any similar state or
local Law.
"Environmental Violation" shall mean (a) any direct or
indirect discharge, disposal, spillage, emission, escape, pumping,
pouring,
injection, leaching, release, seepage, filtration or transporting
of any
Hazardous Substance at, upon, under, onto or within the Leased
Premises, or from
the Leased Premises to the environment, in violation of any
Environmental Law or
in excess of any reportable quantity established under any
Environmental Law or
which could result in any liability to Landlord, Tenant or Lender,
any Federal,
state or local government or any other Person for the costs of any
removal or
remedial action or natural resources damage or for bodily injury or
property
damage, (b) any deposit, storage, dumping, placement or use of any
Hazardous
Substance at, upon, under or within the Leased Premises or which
extends to any
Appurtenances in violation of any Environmental Law or in excess of
any
reportable quantity established under any Environmental Law or
which could
result in any liability to any Federal, state or local government
or to any
other Person for the costs of any removal or remedial action or
natural
resources damage or for bodily injury or property damage, (c) the
abandonment or
discarding of any barrels, containers or other receptacles
containing any
Hazardous Substances in violation of any Environmental Laws, (d)
any activity,
occurrence or condition which could result in any liability, cost
or expense to
Landlord or Lender or any other owner or occupier of the Leased
Premises, or
which could result in a creation of a lien on any Related Premises
under any
Environmental Law or (e) any violation of or noncompliance with
any
Environmental Law.
"Equipment" shall mean the Equipment as defined in Paragraph
1.
"Event of Default" shall mean an Event of Default as defined
in Paragraph 22(a).
-4-
<PAGE>
"Exchange" shall mean Exchange as defined in Paragraph 37.
"Exchange Premises" shall mean Exchange Premises as defined in
Paragraph 37.
"Fair Market Value" of either the Leased Premises or any
Related Premises, as the case may be, and the context may require,
shall mean
the higher of (a) the fair market value of the Leased Premises or
any Related
Premises, as the case may be, as of the Relevant Date as if
unaffected and
unencumbered by this Lease or (b) the fair market value of the
Leased Premises
or Related Premises, as the case may be, as of the Relevant Date as
affected and
encumbered by this Lease and assuming that the Term has been
extended for all
extension periods provided for herein. For all purposes of this
Lease, Fair
Market Value shall be determined in accordance with the procedure
specified in
Paragraph 29.
"Fair Market Value Date" shall mean the date when the Fair
Market Value is determined in accordance with Paragraph 29.
"Federal Funds" shall mean federal or other immediately
available funds which at the time of payment are legal tender for
the payment of
public and private debts in the United States of America.
"Guarantor" shall mean U-Haul International, Inc., a Nevada
corporation.
"Guaranty" shall mean the Guaranty and Suretyship Agreement
dated as of the date hereof from Guarantor to Landlord guaranteeing
the payment
and performance by Tenant of all of Tenant's obligations under the
Lease.
"Hazardous Activity" means any activity, process, procedure or
undertaking which directly or indirectly (i) procures, generates or
creates any
Hazardous Substance; (ii) causes or results in (or threatens to
cause or result
in) the release, seepage, spill, leak, flow, discharge or emission
of any
Hazardous Substance into the environment (including the air, ground
water,
watercourses or water systems), (iii) involves the containment or
storage of any
Hazardous Substance; or (iv) would cause any of the Leased Premises
or any
portion thereof to become a hazardous waste treatment, recycling,
reclamation,
processing, storage or disposal facility within the meaning of any
Environmental
Law.
"Hazardous Condition" means any condition which would support
any claim or liability under any Environmental Law, including the
presence of
underground storage tanks.
"Hazardous Substance" means (i) any substance, material,
product, petroleum, petroleum product, derivative, compound or
mixture, mineral
(including asbestos), chemical, gas, medical waste, or other
pollutant, in each
case whether naturally occurring, man-made or the by-product of any
process,
that is toxic, harmful or hazardous or acutely hazardous to the
environment or
public health or safety or (ii) any substance supporting a claim
under any
Environmental Law, whether or not defined as hazardous as such
under any
Environmental Law. Hazardous Substances include, without
limitation, any toxic
or hazardous waste, pollutant, contaminant, industrial waste,
petroleum or
petroleum-derived substances or waste, radon,
-5-
<PAGE>
radioactive materials, asbestos, asbestos containing materials,
urea
formaldehyde foam insulation, lead, polychlorinated biphenyls.
"Impositions" shall mean the Impositions as defined in
Paragraph 9(a).
"Improvements" shall mean the Improvements as defined in
Paragraph 1.
"Indemnitee" shall mean an Indemnitee as defined in Paragraph
15.
"Initial Lender" shall mean Bank of America, N.A. and its
successors and/or assigns.
"Initial Loan" shall mean that certain Loan made by Initial
Lender to Landlord on the date hereof secured by the Leased
Premises.
"Initial Loan Agreement" shall mean that certain Loan
Agreement by and between Landlord and Initial Lender, dated as of
the
Commencement Date.
"Insurance Requirements" shall mean the requirements of all
insurance policies maintained in accordance with this Lease.
"Land" shall mean the Land as defined in Paragraph 1.
"Law" shall mean any constitution, statute, rule of law, code,
ordinance, order, judgment, decree, injunction, rule, regulation,
requirement or
administrative or judicial determination, even if unforeseen or
extraordinary,
of every duly constituted governmental authority, court or agency,
now or
hereafter enacted or in effect.
"Lease" shall mean this Lease Agreement.
"Lease Assumption Event" shall mean a Lease Assumption Event
as that term is defined in the Mercury Lease.
"Lease Year" shall mean, with respect to the first Lease Year,
the period commencing on the Commencement Date and ending at
midnight on the
last day of the twelfth (12th) consecutive calendar month following
the month in
which the Commencement Date occurred, and each succeeding twelve
(12) month
period during the Term.
"Leased Premises" shall mean the Leased Premises as defined in
Paragraph 1.
"Legal Requirements" shall mean the requirements of all
present and future Laws (including but not limited to Environmental
Laws and
Laws relating to accessibility to, usability by, and discrimination
against,
disabled individuals) and all covenants, restrictions and
conditions now or
hereafter of record which may be applicable to Tenant or to any of
the Leased
Premises or any Related Premises, or to the use, manner of use,
occupancy,
possession, operation, maintenance, alteration, repair or
restoration of any of
the Leased Premises or any Related Premises, even if compliance
therewith
necessitates structural changes or improvements
-6-
<PAGE>
or results in interference with the use or enjoyment of any of the
Leased
Premises or any Related Premises or requires Tenant to carry
insurance other
than as required by this Lease.
"Lender" shall mean (a) initially, Initial Lender, and (b)
thereafter, any person or entity (and its respective successors and
assigns)
which may, on or after the date hereof, make a Loan to Landlord or
be the holder
of a Note.
"Letter of Credit" shall mean Letter of Credit as defined in
Paragraph 35.
"Limited Remedy Default" shall mean Limited Remedy Default as
defined in Paragraph 23(k).
"Loan" shall mean any loan made by one or more Lenders to
Landlord, which loan is secured by a Mortgage and evidenced by a
Note.
"Loan Documents" shall mean those documents or instruments
evidencing or securing a Loan, including, without limitation, a
loan agreement,
Mortgage, Note, Assignment or Subordination non-disturbance and
attornment
agreement.
"Manager" shall mean U-Haul Self-Storage Management (WPC),
Inc. or any future manager retained to manage the Leased
Premises.
"Management Agreement" shall collectively mean (i) that
certain Property Management Agreement by and among Mercury and
Manager, as
manager, dated as of the date hereof, with respect to each
Corresponding Mercury
Premises approved by Landlord and Lender, and (ii) that certain
Assignment and
Subordination of Management Agreement by and among Landlord,
Mercury and Manager
dated as of the date hereof and any future assignment and
subordination of
management agreement as may be required by and in form and
substance acceptable
to, Landlord and Lender.
"Mercury" shall mean Mercury Partners, LP, a Nevada limited
partnership.
"Mercury Guarantor" shall mean Mercury 99, LLC.
"Mercury Lease" shall mean that certain Lease Agreement, dated
as of the date hereof, by and between Landlord and Mercury with
respect to the
Corresponding Mercury Premises.
"Monetary Obligations" shall mean Rent and all other sums
payable by Tenant under this Lease to Landlord, to any third party
on behalf of
Landlord or to any Indemnitee.
"Mortgage" shall mean any mortgage or deed of trust from
Landlord to a Lender which (a) encumbers any of the Leased
Premises, and (b)
secures Landlord's obligation to repay a Loan, as the same may be
amended,
supplemented or modified.
-7-
<PAGE>
"Negative Pledge Agreement" shall mean that certain Negative
Pledge Agreement by and between Landlord, the sole principal of
Mercury
Guarantor (the "Principal") and Mercury Guarantor with respect to
the ownership
interests of Mercury Guarantor in Mercury Tenant and with respect
to the
ownership interests of Principal in Mercury Guarantor.
"Net
Award" shall mean (a) the entire award payable to
Landlord or Lender by reason of a Condemnation whether pursuant to
a judgment or
by agreement or otherwise, or (b) the entire proceeds of any
insurance required
under clauses (i), (ii) (to the extent payable to Landlord or
Lender), (iv), (v)
or (vi) of Paragraph 16(a), as the case may be, less any expenses
incurred by
Landlord and Lender in collecting such award or proceeds.
"Note" shall mean any promissory note evidencing Landlord's
obligation to repay a Loan, as the same may be amended,
supplemented or
modified.
"O & M Plan" shall mean the Operations and Maintenance
Program, if any, established with respect to the monitoring,
removal,
remediation, encapsulation or other treatment or handling of
asbestos containing
materials present at any Related Premises, prepared by ATC
Associates, Inc. and
dated on or about March 2, 2004, as same may be amended, renewed,
supplemented
or otherwise modified from time to time.
"Partial Casualty" shall mean any Casualty which does not
constitute a Termination Event.
"Partial Condemnation" shall mean any Condemnation which does
not constitute a Termination Event.
"Permitted Encumbrances" shall mean those covenants,
restrictions, reservations, liens, conditions and easements and
other
encumbrances, other than any Mortgage or Assignment, listed or
referred to on
Exhibit "C" hereto (but such listing shall not be deemed to revive
any such
encumbrances that have expired or terminated or are otherwise
invalid or
unenforceable).
"Person" shall mean an individual, partnership, association,
corporation or other entity.
"Preapproved Sublet" shall mean Preapproved Sublet as defined
in Paragraph 21.
"Premises Percentage Allocation" shall mean the percentage
allocated to each Related Premises in Exhibit "F" to this Lease as
the same may
be adjusted in accordance with the formula specified in Exhibit
"F".
"Prepayment Premium" shall mean any payment required to be
made by Landlord to a Lender under a Note or other document
evidencing or
securing a Loan (other than payments of principal and/or interest
which Landlord
is required to make under a Note or a Mortgage) solely by reason of
any
prepayment or defeasance by Landlord of any principal due under a
Note or
Mortgage, and which may, without limitation, take the form of (i) a
"make whole"
or yield maintenance clause requiring a prepayment premium or (ii)
a defeasance
-8-
<PAGE>
payment (such defeasance payment to be an amount equal to the
positive
difference between (a) the total amount required to defease a Loan
and (b) the
outstanding principal balance of the Loan as of the date of such
defeasance plus
reasonable Costs of Landlord and Lender); provided that such
Prepayment Premium
shall be as set forth in the Initial Loan Agreement while same is
in effect,
and, thereafter, consistent with market terms at the time the Note
was executed
for loans from Lender (or similar institutional lenders) for
similar sized loans
for single user properties of the size and type of the Lease
Premises and owned
or operated by a tenant of similar creditworthiness as Tenant
hereunder.
"Present Value" of any amount shall mean such amount
discounted by a rate per annum which is the lower of (a) the Prime
Rate at the
time such present value is determined or (b) six percent (6%) per
annum.
"Prime Rate" shall mean the interest rate per annum as
published, from time to time, in The Wall Street Journal as the
"Prime Rate" in
its column entitled "Money Rate". The Prime Rate may not be the
lowest rate of
interest charged by any "large U.S. money center commercial banks"
and Landlord
makes no representations or warranties to that effect. In the event
The Wall
Street Journal ceases publication or ceases to publish the "Prime
Rate" as
described above, the Prime Rate shall be the average per annum
discount rate
(the "Discount Rate") on ninety-one (91) day bills ("Treasury
Bills") issued
from time to time by the United States Treasury at its most recent
auction, plus
three hundred (300) basis points. If no such 91-day Treasury Bills
are then
being issued, the Discount Rate shall be the discount rate on
Treasury Bills
then being issued for the period of time closest to ninety-one (91)
days.
"Qualified Manager" shall mean (a) Guarantor or one or more of
its Affiliates (including Tenant or any direct or indirect wholly
owned
subsidiary of Guarantor that is a subtenant at the applicable
Related Premises),
(b) such other nationally or regionally recognized, reputable and
professional
management organization (i) that has (or whose principals or key
management
personnel have), together with its Affiliates, not less than five
(5) years
experience managing properties of a type, quality and size similar
to the Leased
Premises, totaling in the aggregate not less than 3,000,000 square
feet and/or
30,000 self-storage units, and (ii) prior to whose employment as
manager of the
Leased Premises (A) prior to the occurrence of a Securitization,
such employment
shall have been approved by Lender in its reasonable discretion,
and (B) after
the occurrence of a Securitization, Lender shall have received
written
confirmation from the Rating Agencies that the employment of such
manager will
not result in a downgrade, withdrawal or qualification of the
initial, or if
higher, then current ratings of the Securities, or (c) if no Loan
is
outstanding, a manager that is acceptable to Landlord in Landlord's
sole and
absolute discretion and if any Loan is outstanding, a manager that
is acceptable
to Landlord and Lender in Landlord and Lender's sole and absolute
discretion.
"Rating Agencies" shall mean each of Moody's Investors
Services, Inc.("Moody's") and Standard & Poor's Rating
Services, a division of
The McGraw-Hill Companies, Inc. ("S & P"), or any other
nationally recognized
statistical rating agency which has been approved by Landlord
and/or Lender, as
applicable, provided, however, that notwithstanding the foregoing,
so long as
the Initial Loan remains outstanding, the term "Rating Agencies"
shall have the
meaning assigned in the Initial Loan Agreement.
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"Related Premises" shall mean Related Premises as defined in
Paragraph 1 and as more particularly identified by site location on
Exhibit A-2.
"Relevant Amount" shall mean the Termination Amount.
"Relevant Date" shall mean (a) the date immediately prior to
the date on which the applicable Condemnation Notice is received,
in the event
of a Termination Notice under Paragraph 18 which is occasioned by a
Taking, (b)
the date immediately prior to the date on which the applicable
Casualty occurs,
in the event of a Termination Notice under Paragraph 18 which is
occasioned by a
Casualty, or (c) the date when Fair Market Value is redetermined,
in the event
of a redetermination of Fair Market Value pursuant to Paragraph
20(c).
"Remaining Premises" shall mean the Related Premises which are
not Affected Premises under Paragraph 18 or an Abandonment Premises
under
Paragraph 36.
"Renewal Term" shall mean Renewal Term as defined in Paragraph
5.
"Rent" shall mean, collectively, Basic Rent and Additional
Rent.
"Securitization" shall mean the issuance of pass through
mortgage certificates or other commercial mortgage backed
securities
("Securities") evidencing a beneficial interest in a rated public
offering or
private placement, or such broader definition of such capital terms
as may be
established by Lender in connection with a Loan and/or
Mortgage.
"Security Deposit" shall mean Security Deposit as defined in
Paragraph 35.
"Site Assessment" shall mean a Site Assessment as defined in
Paragraph 10(c).
"Surviving Obligations" shall mean any obligations of Tenant
under this Lease, actual or contingent, which are either Monetary
Obligations
that arise or accrue during the Term of this Lease and remain
unsatisfied upon
the Expiration Date or earlier or termination of this Lease or
non-monetary
obligations which survive such expiration or termination by their
own terms.
"Taking" shall mean (a) any taking or damaging of all or a
portion of any of the Leased Premises (i) in or by condemnation or
other eminent
domain proceedings pursuant to any Law, general or special, or (ii)
by reason of
any agreement with any condemnor in settlement of or under threat
of any such
condemnation or other eminent domain proceeding, or (iii) by any
other means, or
(b) any de facto condemnation. The Taking shall be considered to
have taken
place as of the later of the date actual physical possession is
taken by the
condemnor, or the date on which the right to compensation and
damages accrues
under the law applicable to the Related Premises.
"Term" shall mean the Term as defined in Paragraph 5.
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<PAGE>
"Termination Amount" shall mean the greater of (a) the sum of
the Fair Market Value of the applicable Related Premises and the
applicable
Prepayment Premium which Landlord will be required to pay in
prepaying or
defeasing, as applicable, any Loan with proceeds of the Termination
Amount or
(b) the sum of the Acquisition Cost for the applicable Related
Premises and the
applicable Prepayment Premium which Landlord will be required to
pay in
prepaying or defeasing in whole or in part, as applicable, any Loan
with
proceeds of the Termination Amount.
"Termination Date" shall mean the Termination Date as defined
in Paragraph 18.
"Termination Event" shall mean a Termination Event as defined
in Paragraph 18.
"Termination Notice" shall mean Termination Notice as defined
in Paragraph 18(a).
"Third Party Purchaser" shall mean the Third Party Purchaser
as defined in Paragraph 21 (g).
"Threshold Amount" shall mean, (A) with respect to any
individual Related Premises, the lesser of (x) twenty-five (25%)
percent of the
allocated Acquisition Cost of the applicable Related Premises as
set forth on
Exhibit 'E' hereto, or (y) Five Hundred Thousand ($500,000)
Dollars; and (B)
with respect to the Leased Premises collectively, for purposes of
determining
whether or not the Threshold Amount has been exceeded with respect
to (i) the
costs of remediation of, or other response action for,
Environmental Violations
under Paragraph 10(d), (ii) the costs of Alterations under
Paragraph 13 (other
than with respect to any Alterations associated with a Casualty or
Condemnation
for which a Net Award is available), and (iii) the amounts in
controversy with
respect to a Permitted Violations subject to contests under
Paragraph 14, the
Threshold Amount shall not in the aggregate exceed, at any given
point in time,
the sum of Ten Million Dollars ($10,000,000) under all three
categories
collectively.
"Voting Stock" means shares of stock of a corporation having
ordinary voting power to elect the board of directors or other
managers of such
corporation.
"Warranties" shall mean Warranties as defined in Paragraph
3(e).
3. Title and Condition; Single Lease Transaction.
(a) The Leased Premises are demised and let subject to (i) the
rights of any Persons in possession of the Leased Premises, (ii)
the existing
state of title of any of the Leased Premises, including any
Permitted
Encumbrances, (iii) any state of facts which an accurate survey or
physical
inspection of the Leased Premises might show, (iv) all Legal
Requirements,
including any existing violation of any thereof (v) the rights of
Mercury to any
Common Areas under the Mercury Lease and (vi) the condition of the
Leased
Premises as of the commencement of the Term, without representation
or warranty
by Landlord.
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(b) Tenant acknowledges that the Leased Premises are in good
condition and repair at the inception of this Lease. LANDLORD
LEASES AND WILL
LEASE AND TENANT TAKES AND WILL TAKE THE LEASED PREMISES AS IS
WHERE IS AND WITH
ALL FAULTS. TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS
LANDLORD
HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE,
NOR SHALL
LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION,
EXPRESS OR
IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING ANY
WARRANTY OR
REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR CONDITION FOR ANY
PARTICULAR USE
OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR WORKMANSHIP
THEREIN, (iii) THE
EXISTENCE OF ANY DEFECT, LATENT OR PATENT, (iv) LANDLORD'S TITLE
THERETO, (v)
VALUE, (vi) COMPLIANCE WITH SPECIFICATIONS, (vii) LOCATION, (viii)
USE, (ix)
CONDITION, (x) MERCHANTABILITY, (xi) QUALITY, (xii) DESCRIPTION,
(xiii)
DURABILITY (xiv) OPERATION, (xv) THE EXISTENCE OF ANY HAZARDOUS
SUBSTANCE, OR
(xvi) COMPLIANCE OF THE LEASED PREMISES WITH ANY LAW OR LEGAL
REQUIREMENT; AND
ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY TENANT. TENANT
ACKNOWLEDGES THAT
THE LEASED PREMISES ARE OF ITS SELECTION AND TO ITS SPECIFICATIONS
AND THAT THE
LEASED PREMISES HAVE BEEN INSPECTED BY TENANT AND ARE SATISFACTORY
TO IT. IN THE
EVENT OF ANY DEFECT OR DEFICIENCY IN ANY OF THE LEASED PREMISES OF
ANY NATURE,
WHETHER LATENT OR PATENT, LANDLORD SHALL NOT HAVE ANY
RESPONSIBILITY OR
LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES
(INCLUDING STRICT LIABILITY IN TORT). THE PROVISIONS OF THIS
PARAGRAPH 3(b) HAVE
BEEN NEGOTIATED, AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND
NEGATION OF ANY
WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF
THE LEASED
PREMISES, ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY
OTHER LAW NOW
OR HEREAFTER IN EFFECT OR ARISING OTHERWISE.
(c) Tenant represents to Landlord that Tenant has examined the
title to the Leased Premises prior to the execution and delivery of
this Lease
and has found the same to be satisfactory for the purposes
contemplated hereby.
Tenant acknowledges that (i) fee simple title (both legal and
equitable) to the
Leased Premises is in Landlord and that Tenant has only the
leasehold right of
possession and use of the Leased Premises, as provided herein, (ii)
the
Improvements conform to all material Legal Requirements and all
Insurance
Requirements, (iii) all easements necessary or appropriate for the
use or
operation of the Leased Premises have been obtained, (iv) all
contractors and
subcontractors who have performed work on or supplied materials to
the Leased
Premises have been fully paid, and all materials and supplies have
been fully
paid for, (v) the Improvements have been fully completed in all
material
respects in a workmanlike manner of first class quality, and (vi)
all Equipment
necessary or appropriate for the use or operation of the Leased
Premises has
been installed and is presently fully operative in all material
respects. For
the purposes of this Lease, the inaccuracy of any of the
representations or
acknowledgments set forth in this Paragraph 3(c) shall not by
itself constitute
the basis of a default by Tenant under this Lease, but Tenant
hereby expressly
waives any claim or defense against Landlord with respect to any of
the
foregoing matters.
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<PAGE>
(d) Landlord hereby assigns to Tenant, without recourse or
warranty whatsoever, in conjunction with Landlord, the right to
enforce all
assignable warranties, guaranties, indemnities, causes of action
and similar
rights (collectively "Warranties") which Landlord may have against
any
manufacturer, seller, engineer, contractor or builder in respect of
any Related
Premises. Such assignment shall remain in effect until the
expiration or earlier
termination of this Lease (unless Tenant or its affiliate or
designee acquires
any Related Premises, in which instance such assignment shall
become permanent
and irrevocable with respect to such Related Premises), whereupon
such
assignment shall cease and all of the Warranties, guaranties,
indemnities and
other rights shall automatically revert to Landlord. In
confirmation of such
reversion Tenant shall execute and deliver promptly any certificate
of other
document reasonably required by Landlord. Landlord shall also
retain the right
to enforce any guaranties upon the occurrence of an Event of
Default. Tenant
shall use commercially reasonable efforts to enforce any Warranties
for any
structural components at any Related Premises, including but not
limited to
general construction, concrete, roofs, lifts, and elevators in
accordance with
their respective terms.
(e) LANDLORD AND TENANT AGREE THAT IT IS THEIR MUTUAL INTENT
TO CREATE, AND THAT THIS LEASE CONSTITUTES, A MASTER LEASE WITH
RESPECT TO EACH
AND EVERY PARCEL OF LAND, IMPROVEMENTS INCLUDED IN ANY AND ALL OF
THE LEASED
PREMISES (WHEREVER LOCATED), THAT THIS LEASE IS NOT INTENDED AND
SHALL NOT BE
CONSTRUED TO BE SEPARATE LEASES AND THAT ALL THE TERMS AND
CONDITIONS HEREOF
SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF LANDLORD AND TENANT WITH
RESPECT
THERETO.
(f) TENANT, ON BEHALF OF ITSELF AND ANY TRUSTEE OR LEGAL
REPRESENTATIVE (UNDER THE FEDERAL BANKRUPTCY CODE OR ANY SIMILAR
STATE
INSOLVENCY PROCEEDING) EXPRESSLY ACKNOWLEDGES AND AGREES THAT,
NOTWITHSTANDING
THE PROVISIONS OF PARAGRAPH 18 HEREOF OR ANY OTHER PROVISION IN
THIS LEASE TO
THE CONTRARY, IT IS THE EXPRESS INTENT OF LANDLORD AND TENANT TO
CREATE, AND
THAT THIS LEASE CONSTITUTES, A SINGLE LEASE WITH RESPECT TO EACH
AND EVERY
PARCEL OF LAND, IMPROVEMENTS AND EQUIPMENT INCLUDED IN EACH AND ALL
OF THE
RELATED PREMISES (WHEREVER LOCATED) AND SHALL NOT BE (OR BE DEEMED
TO BE)
DIVISIBLE OR SEVERABLE INTO SEPARATE LEASES FOR ANY PURPOSE
WHATSOEVER, AND
TENANT, ON BEHALF OF ITSELF AND ANY SUCH TRUSTEE OR LEGAL
REPRESENTATIVE, HEREBY
WAIVES ANY RIGHT TO CLAIM OR ASSERT A CONTRARY POSITION IN ANY
ACTION OR
PROCEEDING; IT BEING FURTHER UNDERSTOOD AND AGREED BY TENANT THAT
THE
ALLOCATIONS OF ACQUISITION COST AND PERCENTAGE ALLOCATION OF BASIC
RENT AS SET
FORTH ON EXHIBIT "E" AND EXHIBIT "F" HEREOF ARE INCLUDED TO PROVIDE
A FORMULA
FOR RENT ADJUSTMENT AND LEASE TERMINATION UNDER CERTAIN
CIRCUMSTANCES AND AS AN
ACCOMMODATION TO TENANT. ANY EVENT OF DEFAULT HEREUNDER IN
CONNECTION WITH ANY
RELATED PREMISES SHALL BE DEEMED TO BE AN EVENT OF DEFAULT WITH
RESPECT TO THE
ENTIRE LEASED PREMISES (WHEREVER LOCATED). THE FOREGOING AGREEMENTS
AND WAIVERS
BY TENANT IN THIS PARAGRAPH 3(E) ARE MADE AS A MATERIAL
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<PAGE>
INDUCEMENT TO LANDLORD TO ENTER INTO THE TRANSACTION CONTEMPLATED
BY THIS LEASE
AND THAT, BUT FOR THE FOREGOING AGREEMENTS AND WAIVERS BY TENANT,
LANDLORD WOULD
NOT CONSUMMATE THIS LEASE TRANSACTION.
4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may occupy and use the Leased Premises for
self-storage and vehicle and equipment rental facilities,
incidental repairs of
vehicles available or formerly available for rent in connection
with Tenant's
business at any Related Premises, sales of fleet trucks in the
ordinary course
of Tenant's business, hitch installations, sale of moving and
packing supplies,
sale of propane or sale or rental of propane tanks, office use in
connection
with Tenant's business and incidental uses related to any of the
foregoing,
provided, however, subject to the terms of Paragraph 21, any
subtenant may use
the Leased Premises for any lawful purpose (so long as no such
subtenant's use
requires a change of use or zoning classification or a zoning
variance, or
precludes the return to the primary uses first identified above at
any time in
the future). Tenant shall not use or occupy or permit any of the
Leased Premises
to be used or occupied, nor do or permit anything to be done in or
on any of the
Leased Premises, in a manner which would or might (i) violate any
Law, Legal
Requirement or Permitted Encumbrance, (ii) make void or voidable or
cause any
insurer to cancel any insurance required by this Lease, or make it
difficult or
impossible to obtain any such insurance at commercially reasonable
rates, (iii)
make void or voidable, cancel or cause to be cancelled or release
any of the
Warranties, (iv) cause structural injury to any of the Improvements
or (v)
constitute a public or private nuisance or waste.
(b) Subject to the provisions hereof, so long as no Event of
Default has occurred and is continuing, Tenant shall quietly hold,
occupy and
enjoy the Leased Premises throughout the Term, without any
hindrance, ejection
or molestation by Landlord with respect to matters that arise after
the date
hereof, provided that Landlord or its agents may enter upon and
examine any of
the Leased Premises at such reasonable times as Landlord may select
and upon
reasonable prior written notice to Tenant (except in the case of an
emergency
involving the imminent threat of loss of life or serious bodily
harm or injury
to persons or any material loss of or damage to property, in which
event no
notice shall be required) for the purpose of inspecting the Leased
Premises,
verifying compliance or non-compliance by Tenant with its
obligations hereunder
and the existence or non-existence of an Event of Default or event
which with
the passage of time and/or notice would constitute an Event of
Default, showing
the Leased Premises to prospective Lenders and purchasers and
taking such other
action with respect to the Leased Premises as is permitted by any
provision
hereof.
(c) In no event shall any portion of the Leased Premises be
used or occupied or permitted to be used or occupied by Tenant (or
any subtenant
or other occupant) without the express prior written consent of
Landlord, which
may be granted or withheld in its sole discretion, for any of the
following
purposes: (i) any nightclub, bar or discotheque; (ii) any adult
bookstore or
video shop, nude or semi-nude or "adult" entertainment
establishment or any
lewd, obscene or pornographic purpose; (iii) any store in which a
material
portion of the inventory is not available for sale or rental to
children under
18 years of age because such inventory explicitly deals with,
relates to, or
depicts human sexuality, or in which any of the
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<PAGE>
inventory constitutes drug paraphernalia of the kind associated
with or sold by
so-called "head shops"; (iv) any dumping, disposing, incineration
or reduction
of garbage (exclusive of appropriately screened dumpsters and/or
recycling bins
and garbage disposal in the ordinary course of business); (v) any
mortuary; (vi)
any fire sale, bankruptcy sale (unless pursuant to a court order)
or auction
house operation; (vii) any gas station (provided, however, the sale
of propane
or the sale or rental of propane tanks shall be permitted subject
to applicable
Laws; (viii) any central laundry or dry cleaning plant or
laundromat; (ix) any
automobile, truck, trailer or RV sales (except as expressly
permitted in
Paragraph 4(a) above); (x) any "flea market", secondhand, surplus
or other
"off-price" or deep discount store (provided that the sale of
secondhand goods
at the Related Premises in Key Largo, Florida consistent with
practices in
effect as of the date of this Lease shall be permitted to
continue); (xi) any
gambling or off-track betting operation, or (xii) any massage
parlor or
carnival. Notwithstanding the foregoing, the sale by Tenant (or its
Affiliates
or Manager) of items abandoned by self-storage customers or in
connection with
any lien sale conducted in accordance with applicable Laws shall
not be
prohibited hereby.
(d) Tenant covenants and agrees, as a material inducement to
Landlord's agreement to enter into this Lease, that at all times
during the
Term, each Related Premises shall be operated by a Qualified
Manager pursuant to
a Management Agreement approved by Landlord and Lender. Tenant
shall not be
permitted to amend, modify or waive any provision of any approved
Management
Agreement without having received the prior written consent of
Landlord and
Lender (if applicable), provided Landlord agrees that its consent
shall not be
unreasonably withheld, conditioned or delayed with respect to any
immaterial
amendment, modification or waiver if Lender's consent is not
required for such
modification, amendment or waiver pursuant to any Loan Documents.
Any Management
Agreement shall be assigned to Landlord and, while any Loan remains
outstanding,
Lender and Tenant covenant and agree to execute (and cause any such
Qualified
Manager to execute) such agreements, consents and acknowledgments
as may be
requested by Landlord from time to time to evidence the foregoing.
Any
Management Agreement and any Qualified Manager's interest
thereunder shall be
subordinate to Landlord's fee interest in the Leased Premises, this
Lease and
any Mortgage or other security instrument hereafter placed upon the
Leased
Premises and to any and all advances made or to be made thereunder,
to the
interest thereon, and all renewals, replacements and extensions
thereof.
Notwithstanding the foregoing, so long as the Tenant first named
herein is the
Tenant under this Lease, the Leased Premises may be self-managed by
Tenant or a
subtenant that qualifies as a Qualified Manager pursuant to clause
'(a)' of the
definition of Qualified Manager, and such management may be
performed without
the need for a Management Agreement.
5. Term.
(a) Subject to the provisions hereof, Tenant shall have and
hold the Leased Premises for an initial term (such term, as
extended or renewed
in accordance with the provisions hereof, being called the "Term")
commencing on
the date hereof (the "Commencement Date") and ending on the last
day of the one
hundred twentieth (120th) calendar month next following the date
hereof (the
"Expiration Date").
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<PAGE>
(b) Provided that if, on or prior to the Expiration Date or
any other Renewal Date (as hereinafter defined) this Lease shall
not have been
terminated pursuant to any provision hereof, then on the Expiration
Date and on
the tenth (10th) anniversary of the Expiration Date (each of the
Expiration Date
and such anniversary being referred to herein as a "Renewal Date"),
the Term
shall be deemed to have been automatically extended for an
additional period of
ten (10) years (each such extension, a "Renewal Term"), unless
Tenant shall
notify Landlord in writing at least twelve (12) months prior to the
next Renewal
Date (the "Non-Renewal Notice Deadline") that Tenant is terminating
this Lease
as of the next Renewal Date, provided, however, Landlord shall
deliver written
notice (the "Automatic Renewal Notice") to Tenant of the upcoming
automatic
renewal of the Term by hand or registered or certified mail at
least fifteen
(15) and not more than thirty (30) days prior to the Non-Renewal
Notice
Deadline, and, if such Automatic Renewal Notice is not timely
delivered, then,
the Non-Renewal Notice Deadline shall be automatically extended to
that date
that is fifteen (15) days after the date Landlord gives the
Automatic Renewal
Notice. Any such extension of the Term shall be subject to all of
the provisions
of this Lease, as the same may be amended, supplemented or modified
(except that
Tenant shall not have the right to any additional Renewal
Terms).
Notwithstanding anything to the contrary herein, upon the
occurrence of a Lease
Assumption Event, the Term of this Lease shall automatically become
co-terminus
with the Term of the Mercury Lease.
(c) If Tenant does not exercise its option pursuant to
Paragraph 5(b) to have the Term extended, or at any time that an
Event of
Default occurs and is continuing, Landlord shall have the right
during the
remainder of the Term then in effect and, in any event, Landlord
shall have the
right during the last year of the Term, to (i) advertise the
availability of any
of the Leased Premises for sale or reletting and to erect upon any
of the Leased
Premises signs indicating such availability and (ii) show any of
the Leased
Premises to prospective purchasers or tenants or their agents at
such reasonable
times as Landlord may select.
6. Basic Rent. Tenant shall pay to Landlord, as annual rent for
the
Leased Premises during the Term, the amounts determined in
accordance with
Exhibit "D" hereto ("Basic Rent") payable in advance for the next
following
three calendar months (i.e. the Basic Rent payment due on June 25,
2004 shall
cover the period commencing on July 1, 2004 through and including
the last day
of September 2004), commencing on the twenty-fifth day of June,
2004, and
continuing on the same day of each September, December, March and
June
thereafter during the Term (each such day being a "Basic Rent
Payment Date").
Each such rental payment shall be made in immediately available
Federal Funds,
at Landlord's sole discretion, (a) to Landlord at its address set
forth above
and/or to such one or more other Persons, at such addresses and in
such
proportions as Landlord may direct by not less than fifteen (15)
days' prior
written notice to Tenant, and (b) by certified or bank check, or by
wire
transfer. Basic Rent for the period commencing on the date of this
Lease and
ending on June 30, 2004 shall be paid by Tenant upon the execution
and delivery
of this Lease.
7. Additional Rent.
(a) Tenant shall pay and discharge, as additional rent
(collectively, "Additional Rent"):
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(i) except as otherwise specifically provided herein,
all costs and expenses of Tenant, Landlord and any other Persons
specifically
referenced herein which are incurred in connection or associated
with (A) the
ownership, use, non-use, occupancy, monitoring, possession,
operation,
condition, design, construction, maintenance, alteration, repair or
restoration
of any of the Leased Premises, (B) the performance of any of
Tenant's
obligations under this Lease, (C) any sale or other transfer of any
of the
Leased Premises to Tenant under this Lease, including costs and
expenses
incurred in connection with the payment of a Prepayment Premium,
(D) any
Condemnation proceedings, (E) the adjustment, settlement or
compromise of any
insurance claims involving or arising from any of the Leased
Premises, (F) the
exercise or enforcement by Landlord, its successors and assigns, of
any of its
rights under this Lease, (G) any amendment to or modification or
termination of
this Lease made at the request of Tenant, (H) Costs of Landlord
incurred in
connection with the preparation, negotiation and execution of this
Lease, or
incurred in connection with any act undertaken by Landlord (or its
counsel) at
the request of Tenant, or incurred in connection with any act of
Landlord
performed on behalf of Tenant, (I) the reasonable Costs of Landlord
incurred in
connection with any act undertaken by Landlord at the request of
Tenant or
Tenant's failure to act promptly in an emergency situation, (J)
an
administrative fee of $5,000 (the "Administrative Fee") to defer
the internal
costs of Landlord with respect to each applicable Related Premises
in connection
with Tenant's exercise of its rights under Paragraphs 36 or 37
hereof, provided
that (x) the total amount of Administrative Fees payable in any
Lease Year shall
not exceed $150,000 in the aggregate for the Leased Premises and
(y) no
Administrative Fee shall be payable in connection with any exercise
by Tenant's
of its rights under Paragraphs 36 or 37 hereof if the
Administrative Fee is paid
by Mercury under the Mercury Lease in connection with such
transaction, and (L)
any other items specifically required to be paid by Tenant under
this Lease;
(ii) after the date all or any portion of any
installment of Basic Rent is due and not paid by the applicable
Basic Rent
Payment Date, an amount (the "Late Charge") equal to the lesser of
(x) $15,000
and (y) five percent (5%) of the amount of such unpaid installment
or portion
thereof to reimburse Landlord for its cost and inconvenience
incurred as a
result of Tenant's delinquency; provided, however, that with
respect to the
first late payment of all or any portion of any installment of
Basic Rent in any
Lease Year, the Late Charge shall not be due and payable unless the
Basic Rent
has not been paid within five (5) days' following the due date
thereof. To the
extent the Tenant has timely deposited funds sufficient to pay
Basic Rent then
due hereunder into a lockbox established for the benefit of
Landlord and/or
Lender, the failure or delay of the transfer of such funds to
Landlord shall not
entitle Landlord to a Late Charge or to declare a default
hereunder;
(iii) to the extent in excess of amounts collected by
Landlord under item (iv) below, a sum equal to any additional sums
(excluding
the repayment of principal under a Loan but including any late
charge in excess
of the amount payable under clause (ii) above for that portion of
the Basic Rent
paid to the Lender as scheduled installments of principal and
interest, default
penalties, interest in excess of amounts payable under clause (iv)
below for
that portion of the Basic Rent paid to the Lender as scheduled
installments of
principal and interest, and fees of Lender's counsel) which are
payable by
Landlord to any Lender under any Note by reason of Tenant's late
payment or
non-payment of Basic Rent or by reason of an Event of Default;
and
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(iv)
interest at the rate (the "Default Rate") of four
percent (4%) over the Prime Rate per annum on the following sums
until paid in
full: (A) any and all installments of Basic Rent and/or any amounts
of
Additional Rent (other than as described in clause (B) herein
below) not paid
prior to the expiration of any applicable notice and cure period,
(B) all
overdue amounts of Additional Rent relating to obligations which
Landlord shall
have paid on behalf of Tenant, from the date of payment thereof by
Landlord.
(b) Tenant shall pay and discharge (i) any Additional Rent
referred to in Paragraph 7(a)(i) when the same shall become due,
provided that
amounts which are billed to Landlord or any third party, but not to
Tenant,
shall be paid within thirty (30) days after Landlord's demand for
payment
thereof, and (ii) any other Additional Rent, within thirty (30)
days after
Landlord's demand for payment thereof.
(c) In no event shall amounts payable under Paragraph
7(a)(ii), (iii) and (iv) or elsewhere in this Lease exceed the
maximum amount
permitted by applicable Law.
8. Net Lease: Non-Terminability.
(a) This is a net lease and all Monetary Obligations shall be
paid without notice or demand (except as otherwise expressly
provided herein
with respect to any specific Monetary Obligation) and without
set-off,
counterclaim, recoupment, abatement, suspension, deferment,
diminution,
deduction, reduction or defense (collectively, a "Set-Off).
(b) This Lease and the rights of Landlord and the obligations
of Tenant hereunder shall not be affected by any event or for any
reason or
cause whatsoever foreseen or unforeseen.
(c) The obligations of Tenant hereunder shall be separate and
independent covenants and agreements, all Monetary Obligations
shall continue to
be payable in all events (or, in lieu thereof, Tenant shall pay
amounts equal
thereto), and the obligations of Tenant hereunder shall continue
unaffected
unless the requirement to pay or perform the same shall have been
terminated
pursuant to an express provision of this Lease. The obligation to
pay Rent or
amounts equal thereto shall not be affected by any collection of
rents by any
governmental body pursuant to a tax lien or otherwise, even though
such
obligation results in a double payment of Rent. All Rent payable by
Tenant
hereunder shall constitute "rent" for all purposes (including
Section 502(b)(6)
of the Federal Bankruptcy Code).
(d) Except as otherwise expressly provided herein, Tenant
shall have no right and hereby waives all rights which it may have
under any Law
(i) to quit, terminate or surrender this Lease or any of the Leased
Premises, or
(ii) to any Set-Off of any Monetary Obligations.
9. Payment of Impositions.
(a) Tenant shall, before interest or penalties are due
thereon, pay and discharge all taxes (including real and personal
property,
franchise, sales, use, gross receipts and rent taxes), all charges
for any
easement or agreement maintained for the benefit of any of the
Leased Premises,
all assessments and levies, all permit, inspection and license
fees, all rents
and
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charges for water, sewer, utility and communication services
relating to any of
the Leased Premises, all ground rents and all other public charges
whether of a
like or different nature, even if unforeseen or extraordinary,
imposed upon or
assessed against (i) Tenant, (ii) Tenant's possessory interest in
the Leased
Premises, (iii) any of the Leased Premises, or (iv) Landlord as a
result of or
arising in respect of the acquisition, ownership, occupancy,
leasing, use or,
possession of any of the Leased Premises, any activity conducted on
any of the
Leased Premises, or the Rent (collectively, the "Impositions");
provided, that
nothing herein shall obligate Tenant to pay (A) income, excess
profits or other
taxes of Landlord (or Lender) which are determined on the basis of
Landlord's
(or Lender's) net income or net worth (unless such taxes are in
lieu of or a
substitute for any other tax, assessment or other charge upon or
with respect to
the Leased Premises which, if it were in effect, would be payable
by Tenant
under the provisions hereof or by the terms of such tax, assessment
or other
charge), (B) any estate, inheritance, succession, gift or similar
tax imposed on
Landlord, (C) any capital gains tax imposed on Landlord in
connection with the
sale of the Leased Premises to any Person or (D) any Costs incurred
by Landlord
or any Indemnitee as a result of and to the extent of any
Indemnitee's
negligence acts (but not omissions, unless such omissions
constitute gross
negligence) or willful misconduct. Landlord shall have the right to
require
Tenant to pay, together with scheduled installments of Basic Rent,
the amount of
the gross receipts or rent tax, if any, payable with respect to the
amount of
such installment of Basic Rent. If any Imposition may be paid in
installments
without interest or penalty, Tenant shall have the option to pay
such Imposition
in installments; in such event, Tenant shall be liable only for
those
installments which accrue or become due and payable during the
Term. Tenant
shall prepare and file all tax reports required by governmental
authorities
which relate to the Impositions. If at any time during the Term
Tenant shall be
paying Taxes directly to the applicable taxing authority (and not
by way of a
servicer arranged by a party other than Tenant), then within ten
(10) days after
Landlord's request therefor, Tenant shall deliver to Landlord, (x)
receipts for
payment of all taxes required to be paid by Tenant hereunder within
thirty (30)
days after the due date thereof and (y) receipts for payment of all
other
Impositions. Tenant shall, in any event, deliver to Landlord copies
of all
settlements and all notices pertaining to the non-payment, late
payment or
change in Impositions which may be issued by any governmental
authority within
ten (10) days after Tenant's receipt thereof unless such settlement
or notice
indicates that a copy of such settlement or notice has been sent
directly to
Landlord and/or Lender. Tenant and Landlord agree that they shall
each cooperate
with the other with respect to the delivery of such notices and/or
requests as
may be required by each applicable local taxing authority in order
to cause each
such local taxing authority to send all real estate tax bills and
assessments
applicable to the corresponding Related Premises to the Tenant's
tax servicer
(which tax servicer shall be the same tax servicer as designated by
Mercury
under the Mercury Lease) and to send copies of all such tax bills
be sent to
Landlord's tax servicer; provided, however, that the failure of any
such taxing
authority to send to any such bills to the Tenant's tax servicer
shall not
mitigate any obligation of Tenant to pay such taxes and/or
assessments before
delinquency and/or interest or penalties are due thereon.
(b) Following the occurrence of an Event of Default, or if
Landlord is required by a Lender, Tenant shall pay to Landlord such
amounts
(each an "Escrow Payment") monthly or as required by such Lender
(but not more
often than monthly) so that there shall be in an escrow account an
amount
sufficient to pay the Escrow Charges (as hereinafter defined) as
they become
due. As used herein, "Escrow Charges" shall mean real estate taxes
and
assessments on or with respect to the Leased Premises or payments
in lieu
thereof and premiums
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<PAGE>
on any insurance required by this Lease and any reserves for
capital
improvements, replacements, deferred maintenance or repairs
required by any
Lender. Landlord shall determine the amount of the Escrow Charges
(it being
agreed that if required by a Lender, such amount shall equal any
corresponding
escrow installments required to be paid by Landlord) and the amount
of each
Escrow Payment. To the extent held by Landlord, the Escrow Payments
shall not be
commingled with other funds of Landlord or other Persons. Neither
Landlord nor
Lender shall be required to deposit any Escrow Payments into an
interest bearing
account, however, in the event any Escrow Payments are deposited
into an
interest bearing account, the interest earned thereon shall accrue
to the
benefit of Tenant, and, to the extent actually paid to Landlord,
shall be paid
over to Tenant. Landlord shall apply the Escrow Payments to the
payment of the
Escrow Charges in such order or priority as Landlord shall
determine or as
required by law. If at any time the Escrow Payments theretofore
paid to Landlord
shall be insufficient for the payment of the Escrow Charges,
Tenant, within ten
(10) days after Landlord's demand therefor, shall pay the amount of
the
deficiency to Landlord. Notwithstanding the foregoing, Landlord and
Tenant agree
that Tenant shall make (or cause to be made) on the Commencement
Date payment of
the initial tax and insurance escrow deposit in an amount
reasonably determined
on the Commencement Date by Landlord or Lender with respect to the
Combined
Property (the "Initial Tax/Insurance Deposit") required by the
Initial Lender
for and on behalf of Tenant, and that from and after the date of
this Lease,
Tenant shall make (or cause to be made) Escrow Payments (to
Landlord, Lender or
a tax service or loan servicer, as directed by Landlord) for real
estate taxes
and assessments (or payments in lieu thereof) on or with respect to
the Leased
Premises for which Tenant is otherwise responsible under the terms
of this
Lease, monthly, in an amount equal to one-twelfth (1/12) of the
annual estimated
real estate taxes and assessments and insurance premiums with
respect to the
insurance required to be maintained pursuant to Paragraph 16 for
the Leased
Premises for the applicable Lease Year (or fiscal tax year, if
different), as
reasonably determined by Landlord and confirmed by Lender. Subject
to the terms
and conditions of the Loan Documents, Landlord shall direct such
tax service or
loan servicer to utilize the Initial Tax/Insurance Deposit and such
Escrow
Payments to pay the applicable real estate taxes and assessments
and insurance
premiums for each Related Premises as and when such amounts are due
and payable.
In addition, Tenant shall make (or cause to be made) on the
Commencement Date
payment of the initial replacement escrow deposit in the amount of
$400,000 and
so long as the Initial Loan remains outstanding and no Event of
Default occurs,
Tenant shall not be required to pay ongoing replacement reserves.
Provided that
no Event of Default then exists, any remaining balance of the
Escrow Payments
shall be promptly returned to Tenant (or to such other Person as
Tenant shall
direct in writing) upon the expiration or earlier termination of
the Term or
earlier termination of the requirement to make Escrow Payments.
Tenant's
obligation to pay Escrow Payments pursuant to this Paragraph 9(b)
shall be
without duplication or any Escrow Payments previously paid by
Mercury under the
Mercury Lease with respect to the Leased Premises hereunder for the
same period.
10. Compliance with Laws and Easement Agreements; Environmental
Matters.
(a) Tenant shall, at its expense, comply with and conform to,
and cause the Leased Premises and any other Person occupying any
part of the
Leased Premises to comply with and conform to all Insurance
Requirements, in all
material respects, and Legal Requirements (including all
applicable
Environmental Laws). Tenant shall not at any time (i)
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cause, permit or suffer to occur any Environmental Violation or
(ii) permit any
sublessee, assignee or other Person occupying the Leased Premises
under or
through Tenant to cause, permit or suffer to occur any
Environmental Violation
and, at the request of Landlord or Lender, Tenant shall promptly
remediate or
undertake any other appropriate response action to correct any
existing
Environmental Violation, however immaterial, and (iii) without the
prior written
consent of Landlord and Lender, permit any drilling or exploration
for or
extraction, removal, or production of any minerals from the surface
or the
subsurface of the Land, regardless of the depth thereof or the
method of mining
or extraction thereof. Any and all reports prepared for or by
Landlord with
respect to the Leased Premises shall be for the sole benefit of
Landlord and
Lender and no other Person shall have the right to rely on any such
reports;
provided that nothing herein shall be deemed to prevent Tenant from
obtaining a
copy thereof, or from requesting the preparer of such reports to
separately
address an additional copy of such report or a reliance letter to
Tenant.
Landlord agrees that any remediation that Tenant may be required to
undertake
during the Term for any Environmental Violation shall be based upon
remediation
standards appropriate for commercial facilities or commercial uses
under
applicable Environmental Laws; provided, however, that after the
expiration of
the Term or the earlier termination of this Lease until the
applicable Related
Premises has been either sold or entirely re-let, Landlord shall
have the right,
if required by any prospective purchaser or tenant, to require
Tenant to
undertake additional remediation to the clean-up level standards
applicable to
any uses then permitted under applicable Legal Requirements
(including, without
limitation, any zoning ordinances) where the Related Premises is
located if such
standards are more stringent than the applicable remediation
standards for
commercial facilities.
(b) Tenant, at its sole cost and expense, will at all times
promptly and faithfully abide by, discharge and perform all of the
covenants,
conditions and agreements contained in any Easement Agreement on
the part of
Landlord or the occupier to be kept and performed thereunder.
Tenant will not
alter, modify, amend or terminate any Easement Agreement, give any
consent or
approval thereunder, or enter into any new Easement Agreement
without, in each
case, prior written consent of Landlord. Notwithstanding the
foregoing, provided
that no Event of Default shall have occurred and be continuing,
Landlord hereby
agrees to consent in each instance to the following actions by the
Tenant at the
Tenant's sole cost and expense: (a) the granting of easements,
licenses, rights
and privileges in the nature of easements reasonably necessary or
desirable for
the use, repair, or maintenance of any Related Premises as herein
provided; (b)
the release of existing easements or other rights in the nature of
easements
which are for the benefit of any Related Premises (c) the execution
of
amendments to any covenants and restrictions affecting any Related
Premises;
provided, however, that, in each case, (i) such grant, release,
dedication,
transfer or amendment does not materially lessen or impair the
value, utility or
remaining useful life of the applicable Related Premises, (ii) such
grant,
release, dedication, transfer or amendment that in the Tenant's
judgment is
reasonably necessary in connection with the use, maintenance,
alteration or
improvement of the applicable Related Premises (iii) such grant,
release,
dedication, transfer or amendment will not cause the Related
Premises or any
portion thereof to fail to comply with the provision of this Lease
and all
applicable Laws (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, annexation or amendment have been obtained, and all
filings required
prior to such action have been made; (v) the Tenant shall remain
obligated under
this
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<PAGE>
Lease in accordance with its terms, as though such grant, release,
dedication,
transfer or amendment had not been affected and (vi) the Tenant
shall pay and
perform any obligations of the Landlord under such grant, release,
dedication,
transfer or amendment. Landlord shall within fifteen (15) days of
written
request by Tenant, execute any consent or instrument reasonably
required by
Tenant with respect to any of the documents described in the
proceeding
sentence. Tenant shall conform to and comply with each O & M
Plan, if any,
applicable to the Leased Premises or any Related Premises.
(c) Upon prior written notice from Landlord, Tenant shall
permit such persons as Landlord may designate ("Site Reviewers") to
visit the
Leased Premises during normal business hours and in a manner which
does not
unreasonably interfere with Tenant's operations and perform,
environmental site
investigations and assessments ("Site Assessments") on the Leased
Premises in
any of the following circumstances: (i) in connection with any
sale, financing
or refinancing of the Leased Premises, (ii) within the six month
period prior to
the expiration of the Term, (iii) if required by Lender pursuant to
terms of the
Initial Loan Agreement or any other credit facility to which
Landlord is bound,
(iv) if an Event of Default exists, or (v) at any other time that,
in the
reasonable opinion of Landlord or Lender, a reasonable basis exists
to believe
that an Environmental Violation or any condition that could
reasonably be
expected to result in any Environmental Violation exists. Such Site
Assessments
may include both above and below the ground testing for
Environmental Violations
and such other tests as may be necessary, in the opinion of the
Site Reviewers,
to conduct the Site Assessments. Tenant shall supply to the Site
Reviewers such
historical and operational information within Tenant's possession
or control
regarding the Leased Premises as may be reasonably requested by the
Site
Reviewers to facilitate the Site Assessments, and shall make
available for
meetings with the Site Reviewers appropriate personnel having
knowledge of such
matters. The Costs of performing and reporting Site Assessments
under clause (i)
(if the sale is to Tenant or any affiliate or designee of Tenant),
under clause
(ii) (but only one time), and under clauses (iv) and (v) (if any
Environmental
Violation is discovered as a result of such Site Assessment) shall
be paid by
Tenant, and in all other instances the cost of performing and
reporting Site
Assessments shall be paid by Landlord.
(d) If an Environmental Violation occurs or is found to exist
and, in Landlord's reasonable determination (based, in good faith,
upon a report
or opinion of an environmental consultant), the cost of remediation
of, or other
response action with respect to, the same is likely to exceed the
Threshold
Amount, Tenant shall provide to Landlord, within ten (10) days
after Landlord's
request therefor, adequate financial assurances that Tenant will
effect such
remediation in accordance with applicable Environmental Laws. Such
financial
assurances shall be a bond or letter of credit or cash reserve held
by Landlord
satisfactory to Landlord and in form and substance and in an amount
equal to or
greater than Landlord's reasonable estimate (but such amount shall
not exceed
150% of the estimated cost of remediation), based upon a Site
Assessment
performed pursuant to Paragraph 10(c), of the anticipated cost of
such remedial
action.
(e) Notwithstanding anything to the contrary contained herein,
the mere presence of propane and or propane tanks at any Related
Premises shall
not constitute an Event of Default hereunder, provided and so long
as such
propane and/or tanks are in quantities
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consistent with Tenant business at such Related Premises and are
sold,
dispensed, maintained, stored, handled and disposed of in
accordance with all
applicable Laws
(f) If Tenant fails to comply with any requirement of any
Environmental Law in connection with any Environmental Violation
which occurs or
is found to exist, Landlord shall have the right (but no
obligation) to take any
and all actions as Landlord shall deem necessary or advisable in
order to cure
such Environmental Violation.
(g) Tenant shall notify Landlord immediately after becoming
aware of any Environmental Violation (or alleged Environmental
Violation) or
noncompliance with any of the covenants contained in this Paragraph
10 and shall
forward to Landlord immediately upon receipt thereof copies of all
orders,
reports, notices, permits, applications or other communications
relating to any
such violation or noncompliance.
(h) All future leases, subleases or concession agreements
relating to the Leased Premises entered into by Tenant shall
contain covenants
of the other party thereto which are identical to the covenants
contained in
Paragraph 10(a) or shall incorporate such provisions by
reference.
(i) So long as no Event of Default has occurred and is then
continuing, Tenant shall have the right together with Landlord and
Lender, to
negotiate with governmental authorities regarding the extent and
methodology of
remediation or cure of any Environmental Violation. Landlord shall,
upon the
receipt of a written request from Tenant, execute such documents or
instruments
reasonably and customarily required by any applicable governmental
authority
with respect to remediation of an Environmental Violation provided
the execution
of such documents or instruments could not and will not cause
Landlord and/or
Lender to incur any additional liability, cost or expense.
(j) Tenant shall comply with the terms and conditions of
Exhibit "H" attached hereto.
11. Liens; Recording.
(a) Tenant shall not, directly or indirectly, create or permit
to be created or to remain and shall promptly discharge or remove
any lien, levy
or encumbrance on any of the Leased Premises or on any Rent or any
other sums
payable by Tenant under this Lease, other than any Mortgage or
Assignment, the
Permitted Encumbrances and any mortgage, lien, encumbrance or other
charge
created by or to the extent resulting from any act or omission of
any
Indemnitee. NOTICE IS HEREBY GIVEN THAT LANDLORD SHALL NOT BE
LIABLE FOR ANY
LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT
OR TO ANYONE
HOLDING OR OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR UNDER
TENANT, AND
THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS
SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO ANY OF
THE LEASED
PREMISES. LANDLORD MAY AT ANY TIME POST ANY NOTICES ON THE LEASED
PREMISES
REGARDING SUCH NON-LIABILITY OF LANDLORD.
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<PAGE>
(b) Landlord and Tenant shall execute, deliver and record,
file or register (collectively, "record") at Tenant's expense a
memorandum or
short form instrument of this Lease in such manner and in such
places as may be
required or permitted by any present or future Law in order to give
record
notice of this Lease.
12. Maintenance and Repair.
(a) Tenant shall at all times maintain each Related Premises
and the Appurtenances in as good repair and appearance as each is
in on the date
hereof and fit to be used for their intended use and consistent
with the
practices generally recognized as then acceptable by other
companies in its
industry and, in any event, as least as good as those observed by
the prior
owner or operator of the Leased Premises immediately preceding the
date of this
Lease, and, in the case of the Equipment, in as good mechanical
condition as it
was on the later of the date hereof or the date of its
installation, except for
ordinary wear and tear. Tenant shall take every other action
reasonably
necessary or appropriate for the preservation and safety of each
Related
Premises. Tenant shall promptly make all Alterations of every kind
and nature,
whether foreseen or unforeseen, which may be required to comply
with the
foregoing requirements of this Paragraph 12(a). Landlord shall not
be required
to make any Alteration, whether foreseen or unforeseen, or to
maintain any of
the Related Premises or Appurtenances in any way, and Tenant hereby
expressly
waives any right which may be provided for in any Law now or
hereafter in effect
to make Alterations at the expense of Landlord or to require
Landlord to make
Alterations. Any Alteration made by Tenant pursuant to this
Paragraph 12 shall
be made in conformity with the provisions of Paragraph 13.
(b) If any Improvement, now or hereafter constructed, shall
(i) encroach upon any setback or any property, street or
right-of-way adjoining
any of the Leased Premises, (ii) violate the provisions of any
restrictive
covenant affecting any of the Leased Premises, (iii) hinder or
obstruct any
easement or right-of-way to which any of the Leased Premises is
subject or (iv)
impair the rights of others in, to or under any of the foregoing,
Tenant shall,
promptly after receiving notice or otherwise acquiring knowledge
thereof, either
(A) obtain from all necessary parties waivers or settlements of all
claims,
liabilities and damages resulting from each such encroachment,
violation,
hindrance, obstruction or impairment, whether the same shall affect
Landlord,
Tenant or both, or (B) take such action as shall be necessary to
remove all such
encroachments, hindrances or obstructions and to end all such
violations or
impairments, including, if necessary, making Alterations.
13. Alterations and Improvements.
(a) Tenant shall have the right, without having obtained the
prior written consent of Landlord or Lender and provided that no
Event of
Default then exists, (i) to make Alterations or a series of related
Alterations
that, as to any such Alterations or series of related Alterations,
do not cost
in excess of the Threshold Amount with respect to any Related
Premises and (ii)
to install Equipment in the Improvements or accessions to the
Equipment that, as
to such Equipment or accessions, do not cost in excess of the
Threshold Amount,
so long as at the time of construction or installation of any such
Equipment or
Alterations no Event of Default exists and the value and utility of
the Leased
Premises is not diminished thereby. If the cost of any Alterations,
series of
related Alterations, Equipment or accessions thereto is in excess
of the
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<PAGE>
Threshold Amount, then the prior written approval of Landlord shall
be required
in each instance, such approval not to be unreasonably withheld or
delayed.
Tenant shall not construct any new buildings, or raise or demolish
any then
existing buildings (other than in connection with the restoration
of the
applicable Improvements following a casualty or condemnation in
accordance with
Paragraphs 17 and 19), upon any Related Premises without the prior
written
consent of Landlord which consent may be granted or withheld in its
sole
discretion. Landlord shall have the right to require Tenant to
remove any
Alterations at the expiration of the Term or earlier termination of
this Lease
(A) constructed in violation of the terms of this Lease or (B) in
excess of the
Threshold Amount and for which Landlord has not agreed in writing
may remain at
the applicable Related Premises prior to or as a part of granting
its approval
thereto.
(b) If Tenant makes any Alterations pursuant to this Paragraph
13 or as required by Paragraph 12 or 17 (such Alterations and
actions being
hereinafter collectively referred to as "Work"), then (i) the
market value of
the Leased Premises shall not be lessened by any such Work or its
usefulness
impaired, (ii) all such Work shall be performed by Tenant in a good
and
workmanlike manner, (iii) all such Work shall be completed
diligently and in
compliance with all Legal Requirements, (iv) all such Work shall
comply with the
requirements of all insurance policies required to be maintained by
Tenant
hereunder, (v) if any such Work involves the replacement of
Equipment or parts
thereto, all replacement Equipment or parts shall have a value and
useful life
equal to the greater of (A) the value and useful life on the date
hereof of the
Equipment being replaced or (B) the value and useful life of the
Equipment being
replaced immediately prior to the occurrence of the event which
required its
replacement (assuming such replaced Equipment was then in the
condition required
by this Lease), (vi) Tenant shall promptly discharge or remove all
liens filed
against any of the Leased Premises arising out of such Work, (vii)
Tenant shall
procure and pay for all permits and licenses required in connection
with any
such Work, (viii) all such Work shall be the property of Landlord
and shall be
subject to this Lease, and Tenant shall execute and deliver to
Landlord any
document requested by Landlord evidencing the assignment to
Landlord of all
estate, right, title and interest (other than the leasehold estate
created
hereby) of Tenant or any other Person thereto or therein, and (ix)
Tenant shall
comply, to the extent requested by Landlord or required by this
Lease, with the
provisions of Paragraphs 12(a) and 19(a), whether or not such Work
involves
restoration of the Leased Premises.
14. Permitted Contests. Notwithstanding any other provision of
this
Lease, Tenant shall not be required to (a) pay any Imposition, (b)
comply with
any Legal Requirement, (c) discharge or remove any lien referred to
in Paragraph
11 or 13 or (d) take any action with respect to any encroachment,
violation,
hindrance, obstruction or impairment referred to in Paragraph 12(b)
(such
non-compliance with the terms hereof being hereinafter referred to
collectively
as "Permitted Violations") and may dispute or contest the same, so
long as at
the time of such non-compliance no Event of Default exists and so
long as Tenant
shall contest, in good faith, the existence, amount or validity
thereof, the
amount of the damages caused thereby, or the extent of its or
Landlord's
liability therefor by appropriate proceedings which shall operate
during the
pendency thereof to prevent or stay (i) the collection of, or other
realization
upon, the Permitted Violation so contested, (ii) the sale,
forfeiture or loss of
any of the Leased Premises or any Rent to satisfy or to pay any
damages caused
by any Permitted Violation, (iii) any interference with the use or
occupancy of
any of the Leased Premises, (iv) any interference with the payment
of any Rent,
(v) the cancellation or increase in the rate of any insurance
policy or a
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statement by the carrier that coverage will be denied or (vi) the
enforcement or
execution of any injunction, order or Legal Requirement with
respect to the
Permitted Violation. If requested by Landlord with respect to any
Permitted
Violation where the amount in controversy is in excess of the
Threshold Amount,
Tenant shall provide Landlord security which is satisfactory, in
Landlord's
reasonable judgment, to assure that such Permitted Violation is
corrected,
including all Costs, interest and penalties that may be incurred or
become due
in connection therewith. While any proceedings which comply with
the
requirements of this Paragraph 14 are pending and the required
security is held
by Landlord, Landlord shall not have the right to correct any
Permitted
Violation thereby being contested unless Landlord is required by
Law to correct
such Permitted Violation and Tenant's contest does not prevent or
stay such
requirement as to Landlord. Each such contest shall be promptly and
diligently
prosecuted by Tenant to a final conclusion, except that Tenant, so
long as the
conditions of this Paragraph 14 are at all times complied with, has
the right to
attempt to settle or compromise such contest through negotiations.
Tenant shall
pay any and all losses, judgments, decrees and Costs in connection
with any such
contest and shall, promptly after the final determination of such
contest, fully
pay and discharge the amounts which shall be levied, assessed,
charged or
imposed or be determined to be payable therein or in connection
therewith,
together with all penalties, fines, interest and Costs thereof or
in connection
therewith, and perform all acts the performance of which shall be
ordered or
decreed as a result thereof. No such contest shall subject Landlord
to the risk
of any civil or criminal liability.
15. Indemnification.
(a) Tenant shall pay, protect, indemnify, defend, save and
hold harmless Landlord, Lender and all other Persons described in
Paragraph 30
(each an "Indemnitee") from and against any and all liabilities,
losses, damages
(including punitive damages), penalties, Costs (including
attorneys' fees and
costs), causes of action, suits, claims, demands or judgments of
any nature
whatsoever, howsoever caused, without regard to the form of action
and whether
based on strict liability, gross negligence, negligence or any
other theory of
recovery at law or in equity, arising from (i) any matter
pertaining to the
acquisition (or the negotiations leading thereto), ownership,
leasing, use,
non-use, occupancy, operation, management, condition, design,
construction,
maintenance, repair or restoration of any of the Leased Premises
or
Appurtenances, (ii) any casualty in any manner arising from any of
the Leased
Premises or Appurtenances, whether or not Indemnitee has or should
have
knowledge or notice of any defect or condition causing or
contributing to said
casualty, (iii) any violation by Tenant of any provision of this
Lease, any
contract or agreement to which Tenant is a party (including any
Loan Document
executed by Tenant), any Legal Requirement or any Permitted
Encumbrance or any
encumbrance consented to by Tenant or (iv) any alleged, threatened
or actual
Environmental Violation, including (A) liability for response costs
and for
costs of removal and remedial action incurred by the United States
Government,
any state or local governmental unit or any other Person, or
damages from injury
to or destruction or loss of natural resources, including the
reasonable costs
of assessing such injury, destruction or loss, incurred pursuant to
Section 107
of CERCLA, or any successor section or act or provision of any
similar state or
local Law, (B) liability for costs and expenses of abatement,
correction or
cleanup, fines, damages, response costs or penalties which arise
from the
provisions of any of the other Environmental Laws and (C) liability
for personal
injury or property damage arising under any statutory or common-law
tort theory,
including damages assessed for the maintenance of a
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public or private nuisance or for carrying on of a dangerous
activity provided
that none of the foregoing indemnification provisions shall apply
to the extent
arising from the negligent acts (but not omissions, unless such
omissions
constitute gross negligence) or willful misconduct of any
Indemnitee (it being
further acknowledged by the parties hereto that any failure or
omission on the
part of Landlord to take any action required to be taken by Tenant
pursuant to
the terms of this Lease shall not be deemed to constitute
negligence on the part
of Landlord).
(b) In case any action or proceeding is brought against any
Indemnitee by reason of any such claim, (i) Tenant may, except in
the event of a
conflict of interest or a dispute between Tenant and any such
Indemnitee or
during the continuance of an Event of Default, retain its own
counsel and defend
such action (it being understood that Landlord may employ counsel
of its choice
to monitor the defense of any such action, the cost of which shall
be paid by
Tenant) and (ii) such Indemnitee shall notify Tenant to resist or
defend such
action or proceeding by retaining counsel reasonably satisfactory
to such
Indemnitee, and such Indemnitee will cooperate and assist in the
defense of such
action or proceeding if reasonably requested to do so by Tenant, In
the event of
a conflict of interest or dispute or during the continuance of an
Event of
Default, Landlord shall have the right to select counsel, and the
reasonable
cost of such counsel shall be paid by Tenant.
(c) The obligations of Tenant under this Paragraph 15 shall
survive any termination, expiration or rejection in bankruptcy of
this Lease.
THE INDEMNITY SET FORTH IN THIS SECTION 15 SHALL NOT BE IMPAIRED OR
AFFECTED BY
ANY NEGLIGENT OMMISSION ON THE PART OF LANDLORD OR ANYONE ACTING
BEHALF OF
LANDLORD. IT IS EXPRESSLY AGREED AND UNDERSTOOD THAT THIS LEASE
INCLUDES
INDEMNIFICATION PROVISIONS WHICH IN CERTAIN CIRCUMSTANCES COULD
INCLUDE AN
INDEMNIFICATION BY TENANT OF LANDLORD FROM CLAIMS OR LOSSES ARISING
AS A RESULT
OF LANDLORD'S OWN NEGLIGENT OMMISSIONS.
16. Insurance.
(a) Tenant shall maintain or cause to be maintained the
following insurance on or in connection with the Leased
Premises:
(i) Insurance against risk of physical loss or damage to
the Improvements and Equipment as provided under "Special Form"
coverage, and
including customarily excluded perils of hail, windstorm, flood
coverage (with
respect to any Related Premises any portion of which is within a
100-year flood
plain), earthquake and, to the extent required by Lender, terrorism
(subject to
market availability at the time in question), in amounts no less
than the actual
replacement cost of the Improvements and Equipment; provided that,
if Tenant's
insurance company is unable or unwilling to include any of all of
such excluded
perils, Tenant shall have the option of purchasing coverage against
such perils
from another insurer on a "Difference in Conditions" form or
through a
stand-alone policy. Such policies shall contain Replacement Cost
Endorsements
and no co-insurance endorsements and shall contain deductibles not
more than
$25,000 per occurrence, except with respect to (A) earthquake,
which shall have
a deductible of not more than higher of $250,000 or 5% of the
replacement cost
of the applicable Related Premises and (B) windstorm, which shall
have a
deductible of not more than
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the higher of $250,000 or 2% of the replacement cost of the
applicable Related
Premises. If any of the Improvements constitute a legal
non-conforming structure
under applicable building, zoning or land use laws, such policies
shall also
include an ordinance or law coverage endorsement which will contain
Coverage A:
"Loss Due to Operation of Law" (with a minimum liability limit
equal to
Replacement Cost with a waiver of any co-insurance provisions or an
Agreed Value
Endorsement), Coverage B: "Demolition Cost" and Coverage C:
"Increased Cost of
Construction" coverages.
(ii) Commercial General Liability Insurance (including
but not limited to Incidental Medical Malpractice and Host Liquor
Liability),
Umbrella Liability and Non-Owned and Hired Business Automobile
Liability
Insurance against claims for personal and bodily injury, death or
property
damage occurring on, in or as a result of the use of the Leased
Premises, in an
amount not less than $1,000,000 per occurrence and $2,000,000
per
location/annual aggregate with excess liability coverage of
$25,000,000 per
occurrence and $50,000,000 general aggregate, on an occurrence
based policies,
and all other coverage extensions that are usual and customary for
properties of
this size and type provided, however, that the Landlord shall have
the right to
require such higher limits as may be reasonable and customary for
properties of
this size and type and Customer Goods Liability Insurance in an
amount not less
than $500,000 general aggregate.
(iii) Worker's compensation insurance covering all
persons employed by Tenant or Manager in connection with any work
done on or
about any of the Leased Premises for which claims for death,
disease or bodily
injury may be asserted against Landlord, Tenant or any of the
Leased Premises
or, in lieu of such Workers' Compensation Insurance, a program of
self-insurance
complying with the rules, regulations and requirements of the
appropriate agency
of the State or States in which the Leased Premises are
located.
(iv) Comprehensive Boiler and Machinery Insurance on any
of the Equipment or any other equipment on or in the Leased
Premises in an
amount not less than $5,000,000 per accident for damage to
property. Either such
Boiler and Machinery policy or the All-Risk policy required in (i)
above shall
include at least $3,000,000 per incidence for Off-Premises Service
Interruption,
Expediting Expenses, Ammonia Contamination, and Hazardous Materials
Clean-up
Expense and may contain a deductible not to exceed $25,000.
(v) Business Interruption and Extra Expense Insurance at
limits to cover 100% of losses and/or expenses incurred over the
period of
indemnity not less than eighteen (18) months from time of loss
including an
extended period of indemnity which provides that after the physical
loss to the
Improvements and Equipment has been repaired, the continued loss of
income will
be insured until such income either returns to the same level it
was at prior to
the loss, or the expiration of six (6) months from the date that
such Related
Premises is repaired or replaced and operations are resumed,
whichever first
occurs. Such insurance shall name Landlord as loss payee solely
with respect to
Rent payable to or for the benefit of the Landlord under this
Lease.
(vi) During any period in which substantial Alterations
at any Related Premises are being undertaken, builder's risk
insurance covering
the total completed value including any "soft costs" with respect
to the
Improvements being altered or repaired (on a
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completed value, non-reporting basis), replacement cost of work
performed and
equipment, supplies and materials furnished in connection with such
construction
or repair of Improvements or Equipment, together with such "soft
cost"
endorsements and such other endorsements as Landlord may reasonably
require and
general liability, workers' compensation and automobile liability
insurance with
respect to the Improvements being constructed, altered or
repaired.
(vii) Such other insurance (or other terms with respect
to any insurance required pursuant to this Paragraph 16, including
without
limitation amounts of coverage, deductibles, form of mortgagee
clause) on or in
connection with any of the Leased Premises as Landlord or Lender
may reasonably
require.
(b) The insurance required by Paragraph 16(a) shall be written
by companies which have a Best's rating of A:X or above and a
claims paying
ability rating of A+ (or its equivalent) or better by at least two
(2) Rating
Agencies (one of which shall be S&P ) or such other Rating
Agencies approved by
Landlord and Lender in their sole discretion and are authorized to
write
insurance policies by, the State Insurance Department for the
states in which
the Leased Premises are located. Notwithstanding foregoing, an
"Umbrella" Policy
issued by Mt. Hawley Insurance Company shall be acceptable to
Landlord and
Lender, provided that (i) the ratings assigned to Mt. Hawley
Insurance Company
by A.M. Best Company, Inc. do not fall below "A/IX" and (ii) the
ratings
assigned to Mt. Hawley Insurance Company by S&P do not fall
below "A+". The
insurance policies (i) shall be for such terms as Landlord may
reasonably
approve and (ii) shall be in amounts sufficient at all times to
satisfy any
coinsurance requirements thereof. The insurance referred to in
Paragraphs
16(a)(i), 16(a)(iv) and 16(a)(vi) shall name Landlord as owner and
Lender as
loss payee and Tenant as its interest may appear. The insurance
referred to in
Paragraph 16(a)(ii) shall name Landlord and Lender as additional
insureds, and
the insurance referred to in Paragraph 16(a)(v) shall name Landlord
as insured
and Lender and Landlord as loss payee. If said insurance or any
part thereof
shall expire, be withdrawn, become void, voidable, unreliable or
unsafe for any
reason, including a breach of any condition thereof by Tenant or
the failure or
impairment of the capital of any insurer, or if for any other
reason whatsoever
said insurance shall become reasonably unsatisfactory to Landlord,
Tenant shall
immediately obtain new or additional insurance reasonably
satisfactory to
Landlord. Landlord acknowledges that the insurance required to be
maintained
pursuant to Paragraph 16(a) shall be carried under a policy or
policies insuring
both the Leased Premises demised hereunder and the "Leased
Premises" demised
under the Mercury Lease (collectively, the "Combined Property") and
the
insurance amounts and deductibles set forth in Paragraph 16(a)
reflect the
insurance amounts and deductibles required for the entire Combined
Property in
the aggregate, provided, however, that the Business Interruption
and Extra
Expense insurance required to be maintained pursuant to Paragraph
16(a)(v),
shall insure the payment of both Rent payable under this Lease and
Rent (as that
term is defined in the Mercury Lease) payable under the Mercury
Lease.
(c) Each insurance policy referred to in clauses (i), (iv),
(v) and (vi) of Paragraph 16(a) shall contain standard
non-contributory
mortgagee clauses in favor of and reasonably acceptable to Lender.
Each policy
required by any provision of Paragraph 16(a), except clause (iii)
thereof, shall
provide that it may not be cancelled substantially modified or
allowed to lapse
on any renewal date except after sixty (60) days' prior notice to
Landlord and
Lender. Each such policy shall also provide that any loss otherwise
payable
thereunder shall be
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payable notwithstanding (i) any act or omission of Landlord or
Tenant which
might, absent such provision, result in a forfeiture of all or a
part of such
insurance payment, (ii) the occupation or use of any of the Leased
Premises for
purposes more hazardous than those permitted by the provisions of
such policy,
(iii) any foreclosure or other action or proceeding taken by Lender
pursuant to
any provision of the any Loan Documents upon the happening of an
event of
default therein or (iv) any change in title to or ownership of any
of the Leased
Premises.
(d) Tenant shall pay as they become due all premiums for the
insurance required by Paragraph 16(a), shall renew or replace each
policy and
deliver to Landlord evidence of the payment of the full premium
therefor or
installment then due at least thirty (30) days prior to the
expiration date of
such policy, and shall promptly deliver to Landlord all original
certificates of
insurance or, if required by Lender, original or certified
policies.
(e) Anything in this Paragraph 16 to the contrary
notwithstanding, any insurance which Tenant is required to obtain
pursuant to
Paragraph 16(a) may be carried under a "blanket" or umbrella policy
or policies
covering other properties or liabilities of Tenant, provided that
such "blanket"
or umbrella policy or policies otherwise comply with the provisions
of this
Paragraph 16 and provided further that Tenant shall provide to
Landlord a
Statement of Values which shall be reviewed annually and amended as
necessary
based on Replacement Cost Valuations. The original or a certified
copy of each
such "blanket" or umbrella policy shall promptly be delivered to
Landlord.
(f) Tenant shall have the replacement cost and insurable value
of the Improvements and Equipment determined from time to time as
required by
the replacement cost endorsement and shall deliver to Landlord the
new
replacement cost endorsement or certificate evidencing such
endorsement promptly
upon Tenant's receipt thereof.
(g) Tenant shall promptly comply with and conform to (i) all
provisions of each insurance policy required by this Paragraph 16
and (ii) all
requirements of the insurers thereunder applicable to Landlord,
Tenant or any of
the Leased Premises as to the use, manner of use, occupancy,
possession,
operation, maintenance, alteration or repair of any of the Leased
Premises, even
if such compliance necessitates Alterations or results in
interference with the
use or enjoyment of any of the Leased Premises.
(h) Tenant shall not carry separate insurance concurrent in
form or contributing in the event of a Casualty with that required
in this
Paragraph 16 unless (i) Landlord and Lender are included therein as
named
insureds, with loss payable as provided herein, and (ii) such
separate insurance
complies with the other provisions of this Paragraph 16. Tenant
shall
immediately notify Landlord of such separate insurance and shall
deliver to
Landlord the original policies or certified copies thereof.
(i) All policies shall contain effective waivers by the
carrier against all claims for insurance premiums against Landlord
and shall
contain full waivers of subrogation against the Landlord.
(j) All proceeds of any insurance required under Paragraph
16(a) shall be payable as follows:
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(i) Proceeds payable under clauses (ii), (iii) and (iv)
of Paragraph 16(a) and proceeds attributable to the general
liability coverage
of Builder's Risk insurance under clause (vi) of Paragraph 16(a)
shall be
payable to the Person entitled to receive such proceeds.
(ii) Proceeds of insurance required under clause (i) of
Paragraph 16(a) and proceeds attributable to Builder's Risk
insurance (other
than its general liability coverage provisions) under clause (vi)
of Paragraph
16(a) shall be payable to Landlord or Lender and applied as set
forth in
Paragraph 17 or, if applicable, Paragraph 18. Tenant shall apply
the Net Award
to restoration of the Leased Premises in accordance with the
applicable
provisions of this Lease unless a Termination Event shall have
occurred and
Tenant has given a Termination Notice.
(k) With respect to the Related Premises located in the State
of New York, the parties intend that the terms of this Paragraph 16
and those of
Paragraphs 17 and 19, constitute an "express agreement to the
contrary" under
Section 227 of the New York State Real Property Law.
17. Casualty and Condemnation.
(a) If any Casualty to any of the Related Premises occurs the
insurance proceeds for which are reasonably estimated by Tenant to
be equal to
or in excess of the Threshold Amount, Tenant shall give Landlord
and Lender
immediate notice thereof. So long as no Event of Default exists
Tenant is hereby
authorized to adjust, collect and compromise all claims under any
of the
insurance policies required by Paragraph 16(a) (except public
liability
insurance claims payable to a Person other than Tenant, Landlord or
Lender) and
to execute and deliver on behalf of Landlord all necessary proofs
of loss,
receipts, vouchers and releases required by the insurers and
Landlord shall have
the right to join with Tenant therein. Any final adjustment,
settlement or
compromise of any such claim shall be subject to the prior written
approval of
Landlord, and Landlord shall have the right to prosecute or
contest, or to
require Tenant to prosecute or contest, any such claim, adjustment,
settlement
or compromise. If an Event of Default exists, Tenant shall not be
entitled to
adjust, collect or compromise any such claim or to participate with
Landlord in
any adjustment, collection and compromise of the Net Award payable
in connection
with a Casualty. Tenant agrees to sign, upon the request of
Landlord, all such
proofs of loss, receipts, vouchers and releases. Each insurer is
hereby
authorized and directed to make payment under said policies,
including return of
unearned premiums, directly to Landlord or, if required by any Loan
Documents,
to Lender instead of to Landlord and Tenant jointly, and Tenant
hereby appoints
each of Landlord and Lender as Tenant's attorneys-in-fact to
endorse any draft
therefor. The rights of Landlord under this Paragraph 17(a) shall
be extended to
Lender if required pursuant to the terms of the Initial Loan
Agreement and
pursuant to any other Loan Documents.
(b) Tenant, immediately upon receiving a Condemnation Notice,
shall notify Landlord and Lender thereof. So long as no Event of
Default exists,
Tenant is authorized to collect, settle and compromise the amount
of any Net
Award and Landlord shall have the right to join with Tenant
therein. If an Event
of Default exists, Landlord shall be authorized to collect, settle
and
compromise the amount of any Net Award and Tenant shall not be
entitled to
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participate with Landlord in any Condemnation proceeding or
negotiations under
threat thereof or to contest the Condemnation or the amount of the
Net Award
therefor. No agreement with any condemnor in settlement or under
threat of any
Condemnation shall be made by Tenant without the written consent of
Landlord.
Subject to the provisions of this Paragraph 17(b), Tenant hereby
irrevocably
assigns to Landlord any award or payment to which Tenant is or may
be entitled
by reason of any Condemnation, whether the same shall be paid or
payable for
Tenant's leasehold interest hereunder or otherwise; but nothing in
this Lease
shall impair Tenant's right to any award or payment on account of
Tenant's trade
fixtures, equipment or other tangible property which is not part of
the
Equipment, moving expenses or loss of business, if available, to
the extent that
and so long as (i) Tenant shall have the right to make, and does
make, a
separate claim therefor against the condemnor and (ii) such claim
does not in
any way reduce either the amount of the award otherwise payable to
Landlord for
the Condemnation of Landlord's fee interest in the applicable
Related Leased
Premises or the amount of the award (if any) otherwise payable for
the
Condemnation of Tenant's leasehold interest hereunder. The rights
of Landlord
under this Paragraph 17(b) shall also be extended to Lender if
required pursuant
to the terms of the Initial Loan Agreement and pursuant to any
other Loan
Documents.
(c) If any Partial Casualty (whether or not insured against)
or Partial Condemnation shall occur to any Related Premises, this
Lease shall
continue, notwithstanding such event, and there shall be no
abatement or
reduction of any Monetary Obligations. Promptly after such Partial
Casualty or
Partial Condemnation, Tenant, as required in Paragraph 12(a), shall
commence and
diligently continue to restore the applicable Related Premises as
nearly as
possible to their value, condition and character immediately prior
to such event
(assuming such Related Premises to have been in the condition
required by this
Lease). So long as no Event of Default exists, any Net Award up to
and including
the Threshold Amount shall be paid by Landlord to Tenant and Tenant
shall
restore the applicable Related Premises in accordance with the
requirements of
Paragraph 13(b) of this Lease. Any Net Award in excess of the
Threshold Amount
shall (unless such Casualty or Condemnation resulting in the Net
Award is a
Termination Event) be made available by Landlord (or Lender if the
terms of any
Loan Documents so require) to Tenant for the restoration of any of
the
applicable Related Premises pursuant to and in accordance with and
subject to
the provisions of Paragraph 19 hereof. If any Casualty or
Condemnation which is
not a Partial Casualty or Partial Condemnation shall occur, Tenant
shall comply
with the terms and conditions of Paragraph 18.
18. Termination Events.
(a) If either (i) all of any Related Premises shall be taken
by a Taking or (ii) any substantial portion of any Related Premises
shall be
taken by a Taking or all or any substantial portion of any Related
Premises
shall be totally damaged or destroyed by a Casualty and, in any
such case,
Tenant certifies and covenants to Landlord that it will forever
abandon
operations at the Related Premises, (any one or all of the Related
Premises
described in the above clauses (i) and (ii) above being hereinafter
referred to
as the "Affected Premises" and each of the events described in the
above clauses
(i) and (ii) shall hereinafter be referred to as a "Termination
Event"), then
(x) in the case of (i) above, Tenant shall be obligated, within
thirty (30) days
after Tenant receives a Condemnation Notice and (y) in the case of
(ii) above,
Tenant shall have the option, within thirty (30) days after Tenant
receives a
Condemnation Notice or thirty (30) days after the Casualty, as the
case may be,
to give to Landlord written notice (a
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"Termination Notice") in the form described in Paragraph 18(b) of
the Tenant's
election to terminate this Lease as to the Affected Premises. If
Tenant elects
under clause (y) above not to give Landlord a Termination Notice,
then Tenant
shall rebuild or repair the Leased Premises in accordance with
Paragraphs 17 and
19.
(b) A Termination Notice shall contain (i) notice of Tenant's
intention to terminate this Lease as to the Affected Premises on
the first Basic
Rent Payment Date which occurs at least ninety (90) days after the
Fair Market
Value Date (the "Termination Date"), (ii) a binding and irrevocable
offer of
Tenant to pay the Termination Amount, (iii) if the Termination
Event is an event
described in Paragraph 18(a)(ii), the certification and covenant
described
therein, and (iv) an original termination notice from Mercury of
Mercury's
intention to terminate the Mercury Lease as to the Affected
Premises effective
as of the same date as Tenant's notice and containing a binding and
irrevocable
offer of Mercury to pay the applicable "Termination Amount" under
the Mercury
Lease for the Corresponding Mercury Premises and, if the
Termination Event is an
event described in Paragraph 18(a)(ii) of the Mercury Lease, the
certification
and covenant described therein; it being agreed by Tenant that no
Termination
Notice given by Tenant hereunder shall be of any force or effect
unless
accompanied by a simultaneous "Termination Notice" from Mercury
with respect to
the Corresponding Mercury Premises. Promptly upon the delivery to
Landlord of a
Termination Notice, Landlord and Tenant shall commence to determine
Fair Market
Value of the Affected Premises.
(c) If Landlord shall reject such offer by Tenant to pay to
Landlord the Termination Amount as to the Affected Premises
pursuant to
Paragraph 18(b) above by written notice to Tenant (a "Rejection")
which
Rejection shall contain the written consent of Lender to Landlord's
rejection of
Tenant's offer to pay the Termination Amount, not later than thirty
(30) days
following the Fair Market Value Date, then this Lease shall
terminate as to the
Affected Premises on the Termination Date. Upon such termination
(i) all
obligations of Tenant hereunder as to the Affected Premises shall
terminate
except for any Surviving Obligations, (ii) Tenant shall immediately
vacate and
shall have no further right, title or interest in or to any of the
Affected
Premises and (iii) the Net Award shall be retained by Landlord.
Notwithstanding
anything to the contrary hereinabove contained, if Tenant shall
have received a
Rejection and, on the date when this Lease would otherwise
terminate with
respect to the Affected Premises as provided above, Landlord shall
not have
received the full amount of the Net Award payable by reason of the
applicable
Termination Event, then the date on which this Lease is to
terminate with
respect to the Affected Premises shall be automatically extended to
the first
Basic Rent Payment Date after the receipt by Landlord of the full
amount of the
Net Award. It is acknowledged and agreed by Landlord that any
acceptance or
Rejection of a Termination Notice from Tenant under this Paragraph
18(c) or
18(d) below shall also concurrently contain the same response (i.e.
an
acceptance or Rejection, as the case my be) of the "Termination
Notice"
delivered by Mercury with respect to the Corresponding Mercury
Premises.
(d) Unless Tenant shall have received a Rejection not later
than the thirtieth (30th) day following the Fair Market Value Date,
Landlord
shall be conclusively presumed to have accepted such offer from
Tenant to pay
the Termination Amount. If such offer from Tenant to pay the
Termination Amount
is accepted by Landlord then, on the Termination Date, Tenant shall
pay to
Landlord the Termination Amount and all Remaining Obligations
and,
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if requested by Tenant, Landlord shall convey to Tenant or its
designee the
Affected Premises or the remaining portion thereof, if any, all in
accordance
with Paragraph 20.
(e) In the event of the termination of this Lease as to the
Affected Premises as hereinabove provided, this Lease shall remain
in full force
and effect as to the Remaining Premises; provided, that the Basic
Rent for the
Remaining Premises to be paid after such termination shall be the
Basic Rent
otherwise payable hereunder with respect to the Leased Premises
multiplied by a
percentage equal to the sum of the percentages set forth on Exhibit
"F" for the
Remaining Premises.
19. Restoration.
(a) If any Net Award is in excess of the Threshold Amount,
Landlord (or Lender if required by any Loan Documents) shall hold
the Net Award
in a fund (the "Restoration Fund") and disburse amounts from the
Restoration
Fund only in accordance with the following conditions:
(i) prior to commencement of restoration, (A) the plans
and specifications and a budget for the restoration shall have been
approved by
Landlord, (B) if the Net Award is less than the amount set forth on
the full
cost budget for the restoration of the applicable Related Premises
(which budget
has been approved by Landlord), Landlord and Lender shall be
provided with
mechanics' lien insurance (if available) and acceptable performance
and payment
bonds which insure satisfactory completion of and payment for the
restoration,
are in an amount and form and have a surety acceptable to Landlord,
and name
Landlord and Lender as additional dual obligees, and (C) to the
extent permitted
by applicable Law, appropriate waivers of mechanics' and
materialmen's liens
shall have been filed or obtained;
(ii) at the time of any disbursement, no Event of
Default shall exist and no mechanics' or materialmen's liens shall
have been
filed against the applicable Related Premises being restored that
remain
undischarged;
(iii)
disbursements shall be made from time to time in
an amount not exceeding the cost of the work completed since the
last
disbursement, upon receipt of (A) satisfactory evidence, including
architects'
certificates, of the stage of completion, the estimated total cost
of completion
and performance of the work to date in a good and workmanlike
manner in
accordance with the contracts, plans and specifications, (B)
waivers of liens
with respect to work paid to date, (C) contractors' and
subcontractors' sworn
statements as to completed work and the cost thereof for which
payment is
requested, (D) a satisfactory bringdown of title insurance and (E)
other
evidence of cost and payment so that Landlord and Lender can verify
that the
amounts disbursed from time to time are represented by work that is
completed,
in place and free and clear of mechanics' and materialmen's lien
claims;
(iv) each request for disbursement shall be accompanied by a
certificate of Tenant, signed by a duly authorized officer of
Tenant, describing
the work for which payment is requested, stating the cost incurred
in connection
therewith, stating that Tenant has not previously received payment
for such work
and, upon completion of the work, also
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stating that the work has been fully completed and complies with
the applicable
requirements of this Lease;
(v) Landlord may retain ten percent (10%) of the
Restoration Fund until the restoration is fully completed.
(vi) If the Restoration Fund is held by Landlord, the
Restoration Fund shall not be commingled with Landlord's other
funds and shall
bear interest (in a money-market or similar type account having
appropriate
liquidity) at the then available rate; and
(vii) such other reasonable and customary conditions as
Landlord or Lender may impose, so long as such conditions are
consistent with
those being required by prudent lenders or investors for similar
properties
under similar circumstances.
(b) Prior to commencement of restoration and at any time
during restoration, if the estimated cost of completing the
restoration work
free and clear of all liens, as determined by Landlord, exceeds the
amount of
the Net Award available for such restoration, the amount of such
excess shall,
upon demand by Landlord, be paid by Tenant to Landlord to be added
to the
Restoration Fund. Any sum so added by Tenant which remains in the
Restoration
Fund upon completion of restoration shall be refunded to Tenant.
For purposes of
determining the source of funds with respect to the disposition of
funds
remaining after the completion of restoration, the Net Award shall
be deemed to
be disbursed prior to any amount added by Tenant.
(c) If any sum remains in the Restoration Fund after
completion of the restoration and any refund to Tenant pursuant to
Paragraph
19(b), such sum shall be paid by Landlord to Tenant.
20. Procedures Upon Purchase.
(a) If the Leased Premises or any of the Related Premises are
purchased by Tenant (or Tenant's designee) pursuant to Paragraphs
18 or 36 of
this Lease, Landlord need not convey any better title thereto than
that which
was conveyed to Landlord, and Tenant or its designee shall accept
such title,
subject, however, to the Permitted Encumbrances (including the
Mercury Lease, if
still in effect) and to all other liens, exceptions and
restrictions on, against
or relating to any of the Leased Premises or the applicable Related
Premises and
to all applicable Laws, but free of the lien of and security
interest created by
any Mortgage or Assignment and liens, exceptions and restrictions
on, against or
relating to the Leased Premises or the applicable Related Premises
which have
been created by, or permitted or resulted solely from, the acts of
Landlord
after the date of this Lease, unless the same are Permitted
Encumbrances or were
created with the concurrence of Tenant or as a result of a default
by Tenant
under this Lease.
(b) Upon the date fixed for any such purchase of the Leased
Premises or any of the Related Premises pursuant to any provision
of this Lease
(any such date the "Purchase Date"), Tenant shall pay to Landlord,
or to any
Person to whom Landlord directs payment, the Relevant Amount
therefor specified
herein, in Federal Funds, less any credit of the Net Award received
and retained
by Landlord or a Lender allowed against the Relevant Amount, and
Landlord shall
deliver to Tenant (i) a special warranty deed which describes the
premises
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being conveyed and conveys the title thereto as provided in
Paragraph 20(a),
(ii) such other instruments as shall be necessary or customary
transfer to
Tenant or its designee any other property (or rights to any Net
Award not yet
received by Landlord or a Lender) then required to be sold by
Landlord to Tenant
pursuant to this Lease and (iii) any Net Award received by
Landlord, not
credited to Tenant against the Relevant Amount and required to be
delivered by
Landlord to Tenant pursuant to this Lease; provided, that if any
Monetary
Obligations remain outstanding on such date, then Landlord may
deduct from the
Net Award the amount of such Monetary Obligations; and further
provided, that if
any event has occurred which, in Landlord's reasonable judgment, is
likely to
subject any Indemnitee to any liability which Tenant is required to
indemnify
against pursuant to Paragraph 15, then an amount shall be deducted
from the Net
Award which, in Landlord's reasonable judgment, is sufficient to
satisfy such
liability, which amount shall be deposited in an escrow account
with a financial
institution reasonably satisfactory to Landlord and Tenant pending
resolution of
such matter. Landlord shall reasonably cooperate (at no additional
cost to
Landlord, unless such cost is in connection with the cure of any
condition
existing on title caused or permitted by Landlord and which is not
permitted
under Paragraph 20(a)), with Tenant and Tenant's title insurance
company with
respect to customary closing affidavits and related matters to
enable the
purchaser to obtain title in accordance with the terms of Paragraph
20(a). If on
the Purchase Date any Monetary Obligations remain outstanding and
no Net Award
is payable to Tenant by Landlord or the amount of such Net Award is
less than
the amount of the Monetary Obligations, then Tenant shall pay to
Landlord on the
Purchase Date the amount of such Monetary Obligations. Upon the
completion of
such purchase, this Lease and all obligations and liabilities of
Tenant
hereunder with respect to the applicable Related Premises (but not
with respect
to the Remaining Premises) shall terminate, except any Surviving
Obligations.
(c) If the completion of such purchase shall be delayed after
(i) the Termination Date, in the event of a purchase pursuant to
Paragraph 18
or, (ii) the date scheduled for such purchase, in the event of a
purchase under
any other provision of this Lease then (x) Rent shall continue to
be due and
payable until completion of such purchase and (y) at Landlord's
sole option,
Fair Market Value shall be redetermined and the Relevant Amount
payable by
Tenant pursuant to the applicable provision of this Lease shall be
adjusted to
reflect such redetermination.
(d) Any prepaid Monetary Obligations paid to Landlord shall be
prorated as of the Purchase Date, and the prorated unapplied
balance shall be
deducted from the Relevant Amount due to Landlord; provided, that
no
apportionment of any Impositions shall be made upon any such
purchase.
21. Assignment and Subletting: Prohibition against Leasehold
Financing.
(a) Except as otherwise expressly provided to the contrary in
this Paragraph 21, Tenant may not (i) assign this Lease,
voluntarily or
involuntarily, whether by operation of law or otherwise (including
through any
merger or consolidation) to any Person, or (ii) sublet any of the
Leased
Premises at any time to any other Person, without the prior written
consent of
Landlord, which consent may be granted or withheld by Landlord for
any or no
reason. Any purported sublease or assignment in violation of this
Paragraph 21
(including any Affiliate transaction in violation of the provisions
of
Paragraphs 21(h) and (i) below) shall be
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null and void. In addition, notwithstanding anything to the
contrary contained
in this Paragraph 21, Tenant shall not have the right to assign
this Lease
(voluntarily or involuntarily, whether by operation of law or
otherwise), or
sublet any of the Leased Premises to any Person (including any
Affiliate) at any
time that an Event of Default beyond any applicable notice and cure
period shall
have occurred and then be continuing under this Lease.
(b) (i) Tenant shall have the right, upon thirty (30) days
prior written notice to Landlord and Lender, to enter into one or
more subleases
that demise, in the aggregate, up to 100% of the gross space in
each Related
Premises to any Affiliate of Tenant or of an approved Manager of
the Leased
Premises and up to but not in excess of forty-nine percent (49%) of
the gross
space in each Related Premises to any other Person with no consent
or approval
of Landlord being required or necessary (each, a "Preapproved
Sublet"). Other
than pursuant to Preapproved Sublets, at no time during the Term
shall subleases
exist for more than forty-nine percent (49%) of the gross space in
any Related
Premises without the prior written consent of Landlord which
consent shall be
granted or withheld based upon the following criteria (the "Review
Criteria"):
(A) credit, (B) capital structure, (C) management, (D) operating
history, (E)
proposed use of the Leased Premises and (F) risk factors associated
with the
proposed use of the Leased Premises by the proposed subtenant,
taking into
account factors such as environmental concerns, product liability
and the like.
Landlord and Lender shall review such information and shall approve
or
disapprove the proposed subtenant in writing no later than the
thirtieth (30th)
day following receipt of all such information, and Landlord and
Lender shall be
deemed to have acted reasonably in granting or withholding consent
if such grant
or disapproval is based on their review of the Review Criteria
applying prudent
business judgment.
(ii) If Tenant assigns all its rights and interest under
this Lease, the assignee under such assignment shall expressly
assume all the
obligations of Tenant hereunder, actual or contingent, including
obligations of
Tenant which may have arisen on or prior to the date of such
assignment, by a
written instrument delivered to Landlord at the time of such
assignment and
shall also provide any certification reasonably required by
Landlord related to
the USA Patriot Act. Each sublease of any of the Related Premises
shall (A) be
expressly subject and subordinate to this Lease and any Mortgage
encumbering the
Leased Premises; (B) not extend beyond the then current Term minus
one day; (C)
terminate upon any termination of this Lease, unless Landlord
elects in writing,
to cause the sublessee to attorn to and recognize Landlord as the
lessor under
such sublease, whereupon such sublease shall continue as a direct
lease between
the sublessee and Landlord upon all the terms and conditions of
such sublease;
and (D) bind the sublessee to all covenants contained in Paragraphs
4(a), 10 and
12 with respect to subleased premises to the same extent as if the
sublessee
were the Tenant and (E) required the sublessee to provide any
certification
reasonably required by Landlord related to the USA Patriot Act. No
assignment or
sublease shall affect or reduce any of the obligations of Tenant
hereunder, and
all such obligations of Tenant shall continue in full force and
effect as
obligations of a principal and not as obligations of a guarantor,
as if no
assignment or sublease had been made. No assignment or sublease
shall impose any
additional obligations on Landlord under this Lease.
(c) Tenant shall, within ten (10) days after the execution and
delivery of any assignment or sublease (including a Preapproved
Sublet), deliver
a duplicate original copy thereof to Landlord which, in the event
of an
assignment, shall be in recordable form. Each
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sublease of any portion of any Related Premises shall (A) be
expressly subject
and subordinate to this Lease and any Mortgage encumbering the
Leased Premises;
(B) not extend beyond the then current Term (including any
exercised or deemed
exercised Renewal Term) minus one day, (C) terminate upon any
termination of
this Lease, unless Landlord elects (as its option) in writing to
cause the
sublessee to attorn to and recognize Landlord as the lessor under
such sublease,
whereupon such sublease shall continue as a direct lease between
the sublessee
and Landlord upon all the terms and conditions of such sublease;
and (D) bind
the sublessee to all covenants contained in Paragraphs 4(a), 10 and
12 with
respect to subleased premises to the same extent as if the
sublessee were the
Tenant.
(d) As security for performance of its obligations under this
Lease, Tenant hereby grants, conveys and assigns to Landlord all
right, title
and interest of Tenant in and to all subleases now in existence or
hereafter
entered into for any or all of the Leased Premises, any and all
extensions,
modifications and renewals thereof and all rents, issues and
profits therefrom.
Landlord hereby grants to Tenant a license to collect and enjoy all
rents and
other sums of money payable under any sublease of any of the Leased
Premises,
provided, however, that Landlord shall have the absolute right at
any time while
an Event of Default is continuing upon notice to Tenant and any
subtenants to
revoke said license and to collect such rents and sums of money and
to retain
the same. Any amounts collected shall be applied to Rent payments
next due and
owing. With respect to any sublease requiring Landlord's consent
pursuant to
this Paragraph 21 or for which Landlord or Lender has granted
non-disturbance
rights, Tenant shall not consent to, cause or allow any
modification or
alteration of any of the terms, conditions or covenants of any of
the subleases
or the termination thereof, without the prior written approval of
Landlord which
consent shall not be unreasonably withheld nor shall Tenant accept
any rents
more than thirty (30) days in advance of the accrual thereof nor do
nor permit
anything to be done, the doing of which, nor omit or refrain from
doing
anything, the omission of which, will or could be a breach of or
default in the
terms of any of the subleases.
(e) Tenant shall not have the power to mortgage, pledge or
otherwise encumber its interest under this Lease or any sublease of
any of the
Related Premises, and any such mortgage, pledge or encumbrance made
in violation
of this Paragraph 21 shall be void and of no force and effect.
(f) Intentionally Omitted.
(g) Subject to the provisions of Paragraph 34 hereof, Landlord
may sell or transfer the Leased Premises at any time without
Tenant's consent to
any institutional investor or other Person whose principal business
is investing
in commercial real estate that is not a Direct Competitor of Tenant
or the
initial Manager of the Leased Premises (each a "Third Party
Purchaser"). In the
event of any such transfer, Tenant shall attorn to any Third Party
Purchaser as
Landlord so long as such Third Party Purchaser and Landlord notify
Tenant in
writing of such transfer. At the request of Landlord, Tenant will
execute such
documents confirming the agreement referred to above and such other
agreements
as Landlord may reasonably request, provided that such agreements
do not
increase the liabilities and obligations of Tenant hereunder. As
used in this
Paragraph 21(g), the term "Direct Competitor" shall mean Budget
Rent A Car
System, Inc., Penske Truck Leasing Co., L.P., Enterprise Rent-A-Car
Company and
Ryder System, Inc. Notwithstanding anything to the contrary
contained herein,
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the terms of this Paragraph 21(g) shall not apply in the case of
any foreclosure
by Lender (or delivery of a deed in lieu of foreclosure), a
transfer to any
affiliate of Lender, or the initial sale of the Leased Premises by
any Lender
following a foreclosure (or the delivery of a deed in lieu of
foreclosure).
(h) Tenant shall not, in a single transaction or series of
related transactions, sell or convey, transfer or lease all or
substantially all
of its assets (an "Asset Transfer") to any Person, and any such
Asset Transfer
shall be deemed an assignment in violation of this Lease; except
that, Tenant
shall have the right conduct an Asset Transfer to a Person if the
following
conditions are met: (a) the Asset Transfer is to a Person that is
approved in
writing by Landlord in Landlord's sole and absolute discretion in
accordance
with the provisions of Paragraph 21 (a) of this Lease and (b) this
Lease is
assigned to such Person as a part of such Asset Transfer.
(i) At no time during the Term shall any Person or "group"
(within the meaning of Section 13(d) or Section 14(d) of the
Securities Exchange
Act of 1934, as amended); pursuant to a single transaction or
series of related
transaction (i) acquire more than 50% of the Voting Stock,
partnership
interests, membership interests or other equitable and/or
beneficial interests
of Tenant ("Control") or (ii) obtain the power (whether or not
exercised) to
elect a majority of the directors of Tenant or voting control of
any partnership
or limited liability company or other entity acting as its general
partner or
managing member, unless the purchaser who acquires such voting
power shall be
approved in writing by Landlord in Landlord's sole and absolute
discretion in
accordance with Paragraph 21 (a) and any such change of Control
without such
approval shall be deemed an assignment in violation of this
Lease.
Notwithstanding the foregoing provisions, this Paragraph 21(i)
shall not apply
to or prohibit any sale of the outstanding capital stock of
Guarantor, as parent
of Tenant, by any Person through the "over-the-counter market" or
through any
recognized stock exchange, other than by those deemed to be a
"control person"
within the meaning of the Securities Exchange Act of 1934 (and any
such
permitted sale shall not be deemed an assignment in violation of
this Lease).
22. Events of Default.
(a) The occurrence of any one or more of the following (after
expiration of any applicable cure period as provided in Paragraph
22(b)) shall,
at the sole option of Landlord, constitute an "Event of Default"
under this
Lease:
(i) a failure by Tenant to make any payment of any
Monetary Obligation on or prior to its due date, regardless of the
reason for
such failure;
(ii) a failure by Tenant duly to perform and observe, or
a violation or breach of, any other provision hereof not otherwise
specifically
mentioned in this Paragraph 22(a);
(iii) any representation or warranty made by Tenant
herein or in any certificate, demand or request made pursuant
hereto now or
hereafter proves to be incorrect, as of the time made, in any
material respect;
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(iv) a final, non-appealable judgment or judgments for
the payment of money in excess of $5,000,000 in the aggregate shall
be rendered
against Tenant and the same shall remain undischarged for a period
of ninety
(90) consecutive days;
(v) Tenant shall (A) voluntarily be adjudicated a
bankrupt or insolvent, (B) seek or consent to the appointment of a
receiver or
trustee for itself or for any of the Related Premises, (C) file a
petition
seeking relief under the bankruptcy or other similar laws of the
United States,
any state or any jurisdiction, (D) make a general assignment for
the benefit of
creditors, or (E) be unable to pay its debts as they mature;
(vi) a court shall enter an order, judgment or decree
appointing, without the consent of Tenant, a receiver or trustee
for it or for
any of the Related Premises or approving a petition filed against
Tenant which
seeks relief under the bankruptcy or other similar laws of the
United States,
any state or any jurisdiction, and such order, judgment or decree
shall remain
undischarged or unstayed ninety (90) days after it is entered;
(vii) any of the Related Premises shall have been (A)
abandoned or (B) vacated for a period in excess of sixty (60)
consecutive days
or more than ninety (90) days during any Lease Year, except (1)
during any
reasonable period of repair or restoration of the such Related
Premises
following a Casualty or Taking, (2) during the course of performing
Alterations
to prepare the Leased Premises for occupancy by a permitted
subtenant or
assignee pursuant to an executed sublease or assignment agreement,
(3) with the
prior written consent of Landlord, which consent shall not be
unreasonably
withheld or delayed so long as Tenant has established a plan for
the
preservation, maintenance and security of the Related Premises
(including
confirmation that the insurance required to be carried hereunder by
Tenant will
remain in full force and effect notwithstanding Tenant's vacating
of the Related
Premises) acceptable to Landlord, or (4) after the delivery of an
Abandonment
Notice as to such Related Premises given pursuant to the terms of
Paragraph 36
hereof, or the delivery of a certificate relating to an Obsolete
Premises given
pursuant to the terms of Paragraph 29 hereof, as to such Obsolete
Premises;
(viii) Tenant
shall be liquidated or dissolved or shall
begin proceedings towards its liquidation or dissolution;
(ix) the estate or interest of Tenant in any of the
Related Premises shall be levied upon or attached in any proceeding
and such
estate or interest is about to be sold or transferred or such
process shall not
be vacated or discharged within ninety (90) days after it is
made;
(x) a failure by Tenant to perform or observe, or a
violation or breach of, or a misrepresentation by Tenant under, any
provision of
any Assignment to which Tenant is a party or any other document
between Tenant
and Lender or from Tenant to Lender, if such failure, violation,
breach or
misrepresentation gives rise to a default beyond any applicable
cure period with
respect to any Loan;
(xi) a failure by Tenant to maintain in effect any
license or permit necessary for the use, occupancy or operation of
any of the
Related Premises;
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(xii) Tenant shall in a single transaction or series of
related transactions sell, convey, transfer or lease all or
substantially all of
its assets in violation of the provisions of Paragraph 21; or
(xiii) Tenant shall fail to deliver the estoppel
described in Paragraph 25 within the time period specified
therein;
(xiv) Tenant shall fail to provide, maintain and
replenish, if necessary, the Security Deposit or Earn-Out Deposit
in accordance
with the requirements of Paragraph 35;
(xv) An event of default beyond any applicable notice
and/or cure period shall exist under the Management Agreement,
Dealership
Agreement, the Negative Pledge Agreement, the Non-Compete Agreement
or the
Guaranty; or
(xvi) Any modification, termination or expiration of the
Assignment and Assumption of Lease Agreement, Management Agreement
or Assignment
and Assumption of Dealership Agreement shall occur without the
prior written
consent of Landlord and, if required under the terms of this Lease,
Lender.
(b) No notice or cure period shall be required in any one or
more of the following events: (A) the occurrence of an Event of
Default under
clause (i) (except as otherwise set forth below), (iii), (iv), (v),
(vi), (vii),
(viii), (ix), (x), (xi), (xii), (xiv) or (xvi) of Paragraph 22(a);
(B) the
default consists of a failure to pay Basic Rent, a failure to
maintain any
insurance required by Paragraph 16 or an assignment or sublease
entered into in
violation of Paragraph 21; or (C) the default is such that any
delay in the
exercise of a remedy by Landlord could reasonably be expected to
cause
irreparable harm to Landlord. Notwithstanding the foregoing clause
(B) above, if
the default consists of the failure to pay any Basic Rent, there
shall be a cure
period of three (3) days from the date on which notice is given,
but Landlord
shall not be obligated to give notice of, or allow any cure period
for, any such
default more than one (1) time within any Lease Year, and if the
default
consists of the failure to pay any other Monetary Obligation under
clause (i) of
Paragraph 22(a), the applicable cure period shall be ten (10) days
from the date
on which notice is given. If the default consists of a default
under clause (ii)
of Paragraph 22(a), other than the events specified in clauses (B)
and (C) of
the first sentence of this Paragraph 22(b), the applicable cure
period shall be
thirty (30) days from the date on which notice is given or, if the
default
cannot be cured within such thirty (30) day period and delay in the
exercise of
a remedy would not (in Landlord's reasonable judgment) cause any
material
adverse harm to Landlord or any of the Leased Premises, the cure
period shall be
extended for the period required to cure the default (but such cure
period,
including any extension, shall not in the aggregate exceed ninety
(90) days
except in the case of any on-going remediation or monitoring of an
Environmental
Violation which is being cured in compliance with Paragraph 10, in
which case
the applicable cure period shall be extended to the extent such
extension is
permitted by Lender), provided that Tenant shall commence to cure
the default
within the said thirty (30) day period and shall actively,
diligently and in
good faith proceed with and continue the curing of the default
until it shall be
fully cured. If the default consists of a default under clause
(xiii) of
Paragraph 22(a), the applicable cure period shall be ten (10) days
from the date
notice is given. If the default consists of a default under clause
(xv) of
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Paragraph 22(a), the applicable cure period shall be three (3) days
from the
date notice is given, provided, however, that with respect to a
default under
the Management Agreement where the underlying facts and/or
circumstances giving
rise to the default under the Management Agreement also gives rise
to another
default under Paragraph 22(a) of this Lease, the cure period shall
be the
greater of (x) three (3) days from the date notice is given, or (y)
the cure
period otherwise given under this Paragraph 22 with respect to such
underlying
facts and/or circumstances. Notwithstanding anything to the
contrary herein, to
the extent the Tenant has timely deposited funds sufficient to pay
Basic Rent
then due hereunder into a lockbox established for the benefit of
Landlord and/or
Lender, the failure or delay of the transfer of such funds to
Landlord shall not
entitle Landlord to declare a default hereunder.
23. Remedies and Damages Upon Default.
(a) If an Event of Default shall have occurred and is
continuing, Landlord shall have the right, at its sole option, then
or at any
time thereafter, to exercise its remedies and to collect damages
from Tenant in
accordance with this Paragraph 23, subject in all events to
applicable Law,
without demand upon or notice to Tenant except as otherwise
provided in
Paragraph 22(b), this Paragraph 23 and except as required by
applicable Law.
(i) Landlord may give Tenant notice of Landlord's
intention to terminate this Lease on a date specified in such
notice. Upon such
date, this Lease, the estate hereby granted and all rights of
Tenant hereunder
shall expire and terminate. Upon such termination, Tenant shall
immediately
surrender and deliver possession of the Leased Premises to Landlord
in
accordance with Paragraph 26. If Tenant does not so surrender and
deliver
possession of all of the Leased Premises, Landlord may re-enter and
repossess
any of the Leased Premises not surrendered, with legal process, by
peaceably
entering any of the Leased Premises and changing locks or by
summary
proceedings, ejectment or any other lawful means or procedure. Upon
or at any
time after taking possession of any of the Leased Premises,
Landlord may, by
legal process, remove any Persons or property therefrom. Landlord
shall be under
no liability for or by reason of any such entry, repossession or
removal.
Notwithstanding such entry or repossession, Landlord may collect
the damages set
forth in Paragraph 23(b)(i) or 23(b)(ii).
(ii) Landlord may terminate Tenant's right of possession
(but not this Lease) and may repossess the Leased Premises by any
available
legal process without thereby releasing Tenant from any liability
hereunder and
without demand or notice of any kind to Tenant and without
terminating this
Lease. After repossession of any of the Leased Premises pursuant to
clause (i)
above, Landlord shall have the right to relet any of the Leased
Premises to such
tenant or tenants, for such term or terms, for such rent, on such
conditions and
for such uses as Landlord in its sole discretion may determine, and
collect and
receive any rents payable by reason of such reletting. Landlord may
make such
Alterations in connection with such reletting as it may deem
advisable in its
sole discretion. Notwithstanding any such reletting, Landlord may
collect the
damages set forth in Paragraph 23(b)(ii).
(iii) Intentionally omitted.
(iv) Landlord may declare by notice to Tenant the entire
Basic Rent (in the amount of Basic Rent then in effect) for the
remainder of the
then current Term to be
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immediately due and payable. Tenant shall immediately pay to
Landlord all such
Basic Rent discounted to its Present Value, all accrued Rent then
due and
unpaid, all other Monetary Obligations which are then due and
unpaid and all
Monetary Obligations which arise or become due by reason of such
Event of
Default (including any Costs of Landlord). Upon receipt by Landlord
of all such
accelerated Basic Rent and Monetary Obligations, this Lease shall
remain in full
force and effect and Tenant shall have the right to possession of
the Leased
Premises from the date of such receipt by Landlord to the end of
the Term, and
subject to all the provisions of this Lease, including the
obligation to pay all
increases in Basic Rent and all Monetary Obligations that
subsequently become
due, except that (A) no Basic Rent which has been prepaid hereunder
shall be due
thereafter during the said Term, (B) Tenant shall have no option to
extend or
renew the Term and (C) Tenant shall have no further rights under
Paragraph 34.
For so long as the Tenant under this Lease is the Tenant first
named herein, the
provisions of this Paragraph 23(a)(iv) shall not apply with respect
to any Event
of Default that is a Limited Remedy Default, provided, however,
that the
provisions of this Paragraph 23(a)(iv) shall be effective against
and with
respect to any future Tenant upon any assignment of this Lease,
including the
assignment contemplated in the Assignment and Assumption
Agreement.
(b) Subject to Paragraph 23(k), the following constitute
damages to which Landlord shall be entitled if Landlord exercises
its remedies
under Paragraph 23(a)(i) or 23(a)(ii):
(i) If Landlord exercises its remedy under Paragraph
23(a)(i) but not its remedy under Paragraph 23(a)(ii) (or attempts
to exercise
such remedy and is unsuccessful in reletting the Leased Premises)
then, upon
written demand from Landlord, Tenant shall pay to Landlord, as
liquidated and
agreed final damages for Tenant's default and in lieu of all
current damages
beyond the date of such demand (it being agreed that it would be
impracticable
or extremely difficult to fix the actual damages), an amount equal
to the
Present Value of the excess, if any, of (A) all Basic Rent from the
date of such
demand to the date on which the Term is scheduled to expire
hereunder in the
absence of any earlier termination, re-entry or repossession over
(B) the then
fair market rental value of the Leased Premises for the same
period. Tenant
shall also pay to Landlord all of Landlord's Costs in connection
with the
repossession of the Leased Premises and any attempted reletting
thereof,
including all brokerage commissions, legal expenses, reasonable
attorneys' fees,
employees' expenses, costs of Alterations and expenses and
preparation for
reletting.
(ii) If Landlord exercises its remedy under Paragraph
23(a)(i) or its remedies under Paragraph 23(a)(i) and 23(a)(ii),
then Tenant
shall, until the end of what would have been the Term in the
absence of the
termination of the Lease, and whether or not any of the Leased
Premises shall
have been relet, be liable to Landlord for, and shall pay to
Landlord, as
liquidated and agreed current damages all Monetary Obligations
which would be
payable under this Lease by Tenant in the absence of such
termination less the
net proceeds, if any, of any reletting pursuant to Paragraph
23(a)(ii), after
deducting from such proceeds all of Landlord's Costs (including the
items listed
in the last sentence of Paragraph 23(b)(i) hereof) incurred in
connection with
such repossessing and reletting; provided, that if Landlord has not
relet the
Leased Premises, such Costs of Landlord shall be considered to be
Monetary
Obligations payable by Tenant. Tenant shall be and remain liable
for all sums
aforesaid, and Landlord may recover such damages from Tenant and
institute and
maintain successive actions
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or legal proceedings against Tenant for the recovery of such
damages. Nothing
herein contained shall be deemed to require Landlord to wait to
begin such
action or other legal proceedings until the date when the Term
would have
expired by its own terms had there been no such Event of
Default.
(c) Notwithstanding anything to the contrary herein contained,
in lieu of or in addition to any of the foregoing remedies and
damages, Landlord
may exercise any remedies and collect any damages available to it
at law or in
equity. If Landlord is unable to obtain full satisfaction pursuant
to the
exercise of any remedy, it may pursue any other remedy which it has
hereunder or
at law or in equity.
(d) Landlord shall not be required to mitigate any of its
damages hereunder unless required to by applicable Law. If any Law
shall validly
limit the amount of any damages provided for herein to an amount
which is less
than the amount agreed to herein, Landlord shall be entitled to the
maximum
amount available under such Law.
(e) No termination of this Lease, repossession or reletting of
any of the Leased Premises, exercise of any remedy or collection of
any damages
pursuant to this Paragraph 23 shall relieve Tenant of any Surviving
Obligations.
(f) WITH RESPECT TO ANY REMEDY OR PROCEEDING OF LANDLORD OR
TENANT HEREUNDER, TENANT AND LANDLORD HEREBY WAIVE ANY RIGHT TO A
TRIAL BY JURY,
PROVIDED, HOWEVER, THAT NEITHER LANDLORD NOR TENANT WAIVES ITS
RIGHT TO A TRIAL
BY JURY WITH RESPECT TO ANY ACTION, PROCEEDING OR COUNTER-CLAIM
BROUGHT BY
EITHER TENANT OR LANDLORD AGAINST THE OTHER IN ANY ACTION FOR
PERSONAL INJURY OR
PROPERTY DAMAGE.
(g) Upon the occurrence of any Event of Default, Landlord
shall have the right (but no obligation) to perform any act
required of Tenant
hereunder and, if performance of such act requires that Landlord
enter the
Leased Premises, Landlord may enter the Leased Premises for such
purpose.
(h) No failure of Landlord (i) to insist at any time upon the
strict performance of any provision of this Lease or (ii) to
exercise any
option, right, power or remedy contained in this Lease shall be
construed as a
waiver, modification or relinquishment thereof. A receipt by
Landlord of any sum
in satisfaction of any Monetary Obligation with knowledge of the
breach of any
provision hereof shall not be deemed a waiver of such breach, and
no waiver by
Landlord of any provision hereof shall be deemed to have been made
unless
expressed in a writing signed by Landlord.
(i) Tenant hereby waives and surrenders, for itself and all
those claiming under it, including creditors of all kinds, (i) any
right and
privilege which it or any of them may have under any present or
future Law to
redeem any of the Leased Premises or to have a continuance of this
Lease after
termination of this Lease or of Tenant's right of occupancy or
possession
pursuant to any court order or any provision hereof, and (ii) the
benefits of
any present or future Law which exempts property from liability for
debt or for
distress for rent.
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<PAGE>
(j) Except as otherwise provided herein, all remedies are
cumulative and concurrent and no remedy is exclusive of any other
remedy. Each
remedy may be exercised at any time an Event of Default has
occurred and is
continuing and may be exercised from time to time. No remedy shall
be exhausted
by any exercise thereof.
(k) Notwithstanding anything to the contrary contained herein,
if (i) Landlord has terminated the Mercury Lease and/or
dispossessed Mercury of
its occupancy rights to the premises leased under the Mercury Lease
as a result
of an Event of Default (as that term is defined in the Mercury
Lease) thereunder
(whether or not the Mercury Lease is actually terminated), and (ii)
Landlord has
declared an Event of Default under the provisions of Paragraph
22(a)(xv) solely
with respect to a default under the Management Agreement beyond any
applicable
notice and cure period and such facts and/or circumstance which
constituted such
default under the Management Agreement are not independent defaults
under any
other provision of Paragraph 22 of this Lease (a "Limited Remedy
Default"), then
Landlord's remedies under this Lease shall be limited to the
following: (x)
Landlord shall have the right to terminate this Lease upon not less
than five
(5) days written notice to Tenant and, in such event, Tenant agrees
that it
shall vacate and surrender the Leased Premises to Landlord in
accordance with
the terms of this Lease (as if such date were the scheduled date
set forth in
this Lease for the expiration of the Term hereof) on the date
Landlord so
specifies in such termination notice (the "Vacate Date"), time
being of the
essence, and (y) Tenant shall pay (or Landlord shall be entitled to
retain, as
applicable), as agreed damages hereunder, an amount equal to: (A)
any and all
reserves deposited (or required to have been deposited) by Tenant
with Landlord
or Lender pursuant to Paragraphs 9(b), 10(d) and 14 as of the
Vacate Date, (B)
any amounts on deposit (or required to have been deposited, if same
require
replenishment) by Tenant pursuant to Paragraph 35 hereof as of the
Vacate Date
(provided, however, that the agreed damages payable to Landlord as
the result of
a Limited Remedy Default shall not include any portion of the
Earn-Out Deposit
actually returned to Landlord on or before the date the Vacate Date
and, for
purposes of clarification, the use, control and disbursement of the
Earn-out
Deposit shall be governed solely by the provisions of Paragraph 35,
(C) all
Basic Rent and Additional Rent (including any arrearages thereof)
accruing up to
and including the Vacate Date, and (D) any and all costs and
expenses incurred
by Landlord as a result of Tenant's failure to surrender and vacate
the Leased
Premises in the condition required by Paragraph 26 of this Lease on
the Vacate
Date; provided further, that, in addition to the foregoing, if
Tenant shall fail
to so surrender the Leased Premise as of the Vacate Date as
required herein,
then Tenant shall pay to Landlord, on a per diem basis, an amount
equal to two
and one-half (2.5) times the Basic Rent that would otherwise have
been payable
hereunder for the use and occupancy of the Leased Premises for each
day after
the Vacate Date that Tenant fails to so surrender the Leased
Premises. Landlord
and Tenant acknowledge and agree that (1) each anticipates that,
but for the
requirement that Tenant pay the agreed damages set forth in this
Paragraph
23(k), the damages otherwise payable by Tenant under this Paragraph
23 would be
substantially higher, and (2) it is difficult to ascertain the
actual damages to
Landlord upon the occurrence of the events set forth in clauses
"(i)" and "(ii)"
above and that the agreed damages set forth in this Paragraph 23(k)
represent a
fair and reasonable estimation of the damages that would be
suffered by Landlord
upon such occurrence. Tenant hereby waives the right to assert any
claim that,
on the date hereof, such agreed damages are not fair and reasonable
or that it
is not difficult to ascertain the actual damages to Landlord upon
the occurrence
of the events set forth in clauses "(i)" and "(ii)" above. The
provisions of
this Paragraph 23(k) shall only apply to the Tenant first named
herein and,
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<PAGE>
upon any assignment of this Lease, including the assignment
contemplated in the
Assignment and Assumption Agreement, the provisions of this
Paragraph 23(k)
shall be of no force or effect and Landlord shall be entitled
recover the full
extent of its damages under this Paragraph 23.
24. Notices. All notices, demands, requests, consents,
approvals,
offers, statements and other instruments or communications required
or permitted
to be given pursuant to the provisions of this Lease shall be in
writing and
shall be deemed to have been given and received for all purposes
when delivered
in person or by Federal Express or other reliable 24-hour delivery
service or
five (5) business days after being deposited in the United States
mail, by
registered or certified mail, return receipt requested, postage
prepaid,
addressed to the other party at its address stated on page one of
this Lease or
when delivery is refused. Notices sent to Landlord shall be to the
attention of
Director, Asset Management, and notices sent to Tenant shall be to
the attention
of President and General Counsel. A copy of any notice given by
Tenant to
Landlord shall be addressed to the attention of Director, Asset
Management and
shall simultaneously be given by Tenant to Reed Smith LLP, One
Liberty Place,
Philadelphia, PA 19103, Attention: Chairman, Real Estate Department
and, for so
long as the Initial Loan is outstanding, to Bank of America, N.A.,
Capital
Markets Servicing Group, 555 South Flower Street, 6th Floor,
CA9-706-06-42, Los
Angeles, CA 90071, Attention: Servicing Manager with a copy to
Thacher Proffitt
& Wood LLP, Two World Financial Center, New York, NY 10281,
Attention David S.
Hall, Esq. For the purposes of this Paragraph, any party referenced
herein
(including the Initial Lender or any subsequent Lender) may
substitute another
address stated above (or substituted by a previous notice),
including
substituting Initial Lender for the then current Lender, for its
address by
giving fifteen (15) days' notice of the new address to the other
party, in the
manner provided above.
25. Estoppel Certificate. At any time upon not less than ten
(10)
days' prior written request by either Landlord or Tenant (the
"Requesting
Party") to the other party (the "Responding Party"), the Responding
Party shall
deliver to the Requesting Party a statement in writing, executed by
an
authorized officer of the Responding Party, certifying (a) that,
except as
otherwise specified, this Lease is unmodified and in full force and
effect, (b)
the dates to which Basic Rent, Additional Rent and all other
Monetary
Obligations have been paid, (c) that, to the knowledge of the
signer of such
certificate and except as otherwise specified, no default by either
Landlord or
Tenant exists hereunder, (d) such other matters as the Requesting
Party may
reasonably request, and (e) if Tenant is the Responding Party that,
except as
otherwise specified, there are no proceedings pending or, to the
knowledge of
the signer, threatened, against Tenant before or by a court or
administrative
agency which, if adversely decided, would materially and adversely
affect the
financial condition and operations of Tenant. Any such statements
by the
Responding Party may be relied upon by the Requesting Party, any
Person whom the
Requesting Party notifies the Responding Party in its request for
the
Certificate is an intended recipient or beneficiary of the
Certificate, any
Lender or their assignees and by any prospective purchaser or
mortgagee of any
of the Leased Premises. Any certificate required under this
Paragraph 25 and
delivered by Tenant shall state that, the individual signing the
same, has
sufficient familiarity with the facts contained therein and is duly
authorized
to execute and deliver same.
26. Surrender. Upon the expiration or earlier termination of
this
Lease, Tenant shall peaceably leave and surrender the Leased
Premises or
Affected Premises, if applicable, to Landlord in the same condition
in which the
Leased Premises or Affected
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Premises, if applicable, was at the commencement of this Lease,
except as
repaired, rebuilt, restored, altered, replaced or added to as
permitted or
required by any provision of this Lease, and except for ordinary
wear and tear.
Upon such surrender, Tenant shall (a) remove from the Leased
Premises or
Affected Premises, if applicable, all property which is owned by
Tenant or third
parties other than Landlord and Alterations required to be removed
pursuant to
Paragraph 13 hereof and (b) repair any damage caused by such
removal. Property
not so removed shall become the property of Landlord, and Landlord
may
thereafter cause such property to be removed from the Leased
Premises or
Affected Premises, if applicable. The cost of removing and
disposing of such
property and repairing any damage to any of the Leased Premises or
Affected
Premises, if applicable, caused by such removal shall be paid by
Tenant to
Landlord upon demand. Landlord shall not in any manner or to any
extent be
obligated to reimburse Tenant for any such property which becomes
the property
of Landlord pursuant to this Paragraph 26.
27. No Merger of Title. There shall be no merger of the
leasehold
estate created by this Lease with the fee estate in any of the
Leased Premises
by reason of the fact that the same Person may acquire or hold or
own, directly
or indirectly, (a) the leasehold estate created hereby or any part
thereof or
interest therein and (b) the fee estate in any of the Leased
Premises or any
part thereof or interest therein, unless and until all Persons
having any
interest in the interests described in (a) and (b) above which are
sought to be
merged shall join in a written instrument effecting such merger and
shall duly
record the same.
28. Books and Records.
(a) Tenant shall keep adequate records and books of account
with respect to the finances and business of Tenant generally and
with respect
to the Leased Premises, in accordance with generally accepted
accounting
principles ("GAAP") consistently applied, and shall permit Landlord
and Lender
by their respective agents, accountants and attorneys, upon
reasonable prior
notice to Tenant, and subject to the provisions of Paragraph 4(b),
to visit the
Leased Premises and inspect same and to examine (and make copies
of) the records
and books of account of Tenant at Tenant's primary place of
business first set
forth herein, and to discuss the finances and business with the
officers of
Tenant, at such reasonable times as may be requested by Landlord.
Upon the
request of Lender or Landlord (either telephonically or in
writing), Tenant
shall provide the requesting party with copies of any information
to which such
party would be entitled in the course of a personal visit. Without
limiting the
foregoing and in addition thereto, Tenant agrees that, in the event
that
Landlord, its parent, or any of its Affiliates, are required, in
order to comply
with the terms of any applicable Law, including complying with
Landlord's (or
its parent company's) filing requirements under the Securities Act
of 1934 or
other similar Laws, to obtain audited financial statements on a per
Related
Premises basis, Tenant shall cooperate and cause the Manager to
cooperate with
any such audit (including on-site); provided, that any such audit
shall be made
at Landlord's sole cost and expense.
(b) If at any time during the Term (i) AMERCO, Inc. ceases to
be a publicly traded company and/or its financial reports and
statements (e.g.,
10-K and 10-Q reports) are no longer available to Landlord via
Edgar or other
online reporting sources without material cost to Landlord, (ii)
Tenant is not a
wholly-owned subsidiary of Guarantor, or (iii) Guarantor is not a
wholly-owned
subsidiary of AMERCO Inc., then (x) Tenant shall deliver or cause
to be
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delivered to Landlord and to Lender within one hundred twenty (120)
days of the
close of each fiscal year, annual consolidated audited financial
statements of
Tenant prepared by either Sarvas King & Coleman P.C. or such
other nationally
recognized independent certified public accountants selected by
Tenant and (y)
Tenant shall also furnish to Landlord within seventy-five (75) days
after the
end of each of the three remaining quarters unaudited financial
statements and
all other quarterly reports of Tenant and the Leased Premises,
certified by
Tenant's chief financial officer, and all filings, if any, of Form
10-K, Form
10-Q and other required filings with the Securities and Exchange
Commission
pursuant to the provisions of the Securities Exchange Act of 1934,
as amended,
or any other Law. All financial statements of Tenant shall be
prepared in
accordance with GAAP. In addition to the foregoing, Tenant shall
deliver to
Landlord and Lender such monthly and/or quarterly reports and
unaudited
financial statements with respect to Guarantor, Tenant and the
Leased Premises
as shall be required by Initial Lender pursuant to the Initial Loan
Agreement
(and as shall be reasonably required by any subsequent Lender).
Notwithstanding
the foregoing, Landlord acknowledges that, with respect to the
annual audited
financial statements required hereunder, the Tenant first named
herein shall
provide consolidated audited financial statements of AMERCO Inc.
(including
Tenant and Guarantor), which annual consolidated audited financials
of AMERCO
Inc. shall in all other respects comply with the terms of this
Paragraph 28(b).
29. Determination of Value.
(a) Whenever a determination o
