LEASE AGREEMENT
THIS LEASE AGREEMENT (this
“ Lease ”) is made as of June 28, 2004 (the
“ Effective Date ”), by and between SPIRIT
FINANCE ACQUISITIONS, LLC , a Delaware limited liability
company (“ Lessor ”), whose address is 8910 East
Raintree Drive, Suite 100, Scottsdale, Arizona 85260, and
SIGNIFICANT EDUCATION, LLC , a Delaware limited liability
company (“ Lessee ”), whose address is 2525 East
Arizona Biltmore Circle, #140, Phoenix, Arizona 85016.
In consideration of the mutual
covenants and agreements herein contained, Lessor and Lessee hereby
covenant and agree as follows:
1. Certain Defined
Terms. Capitalized terms not defined herein shall have the
meanings set forth in Exhibit A hereto.
2. Lease of Property;
Use. In consideration of the Rentals and other Monetary
Obligations to be paid by Lessee and of the other terms, covenants
and conditions on Lessee’s part to be kept and performed,
Lessor hereby leases to Lessee, and Lessee hereby takes and hires,
the Property, subject to the Permitted Encumbrances, all Legal
Requirements (including any existing violation thereof), and the
condition of the Property as of the Effective Date; provided,
however, that the recital of the Permitted Encumbrances herein
shall not be construed as a revival of any Permitted Encumbrance
which may have expired or been terminated. During the Lease Term,
the Property shall be used solely for the operation of a Permitted
Facility, and related purposes such as ingress, egress and parking.
Lessee shall at all times during the Lease Term occupy the Property
and shall diligently operate its business on the Property. Except
as otherwise permitted herein, Lessee shall not, by itself or
through any assignment, sublease or other type of transfer, convert
all or any portion of the Property to an alternative use during the
Lease Term without Lessor’s prior written consent.
3. Lease Term;
Extension. The initial term of this Lease (“ Initial
Term ”) shall commence as of the Effective Date and shall
expire at midnight on June 30, 2024 (“ Expiration
Date ”), unless terminated sooner as provided in this
Lease and as may be extended as provided herein. The time period
during which this Lease shall actually be in effect, including any
Extension Term, is referred to herein as the “ Lease
Term .” Unless this Lease has expired or has been sooner
terminated, or an Event of Default has occurred and is continuing
at the time any option is exercised, and provided that all other
agreements necessary to the continued operation of Lessee’s
business at the Property are extended for a period of not less than
the applicable extension periods, Lessee shall have the right and
option (each, an “ Extension Option ”) to extend
the Initial Term for the Property for four (4) additional
successive periods of five (5) years each (each, an “
Extension Term ”), pursuant to the terms and
conditions of this Lease then in effect. Lessee may only exercise
the Extension Options by giving written notice thereof to Lessor of
its election to do so first, no later than one hundred twenty
(120) days prior to the Expiration Date and one hundred twenty
(120) days prior to the immediately preceding Extension Term,
as the case may be. If written notice of the exercise of any
Extension Option is not received by Lessor by the applicable dates
described above, then this Lease shall terminate on the last day of
the Initial Term or, if applicable, the last day of the Extension
Term then in effect. Upon the request of Lessor or Lessee, the
parties hereto will, at the expense of Lessee, execute and exchange
an
instrument in recordable form setting forth the extension of the
Lease Term in accordance with this Section 3.
4. Rental and Other Monetary
Obligations.
A. Base Monthly Rental .
During the Initial Term, on or before the first day of each
calendar month, Lessee shall pay in advance the Base Monthly
Rental; provided, however , if the Effective Date is a date
other than the first day of the month, Lessee shall pay to Lessor
(or any other party designated by Lessor) on the Effective Date the
Base Monthly Rental prorated by multiplying the Base Monthly Rental
by a fraction, the numerator of which is the number of days
remaining in the month (including the Effective Date) for which
Rentals are being paid, and the denominator of which is the total
number of days in such month. During the Extension Terms, if any,
Lessee shall pay the Rentals (including the Base Monthly Rental) in
the manner set forth in this Section 4. Unless otherwise
specifically stated to the contrary herein, Lessee shall perform
all its obligations under this Lease at its sole cost and expense
and shall pay all Rental and any other Monetary Obligation due
hereunder when due and payable, without notice or demand.
B. Scheduled Adjustments . On
the first Adjustment Date and on each Adjustment Date thereafter,
the Base Annual Rental shall increase by an amount equal to the
Rent Adjustment. The “ Rent Adjustment ” shall
be an amount equal to five percent (5%) of the Base Annual Rental
in effect immediately prior to the applicable Adjustment
Date.
C. Additional Adjustments . In
addition to the scheduled adjustments of Base Annual Rental under
Section 4.B above, Base Annual Rental shall be adjusted in
accordance with the terms and provisions of Section 44
below.
D. Additional Rental . Lessee
shall pay and discharge, as additional rental (“
Additional Rental ”), all sums of money required to be
paid by Lessee under this Lease which are not specifically referred
to as Rental. Notwithstanding any provisions in this Lease to the
contrary, Additional Rental shall not include (1) compensation
paid to any officers, executives or employees of Lessor;
(2) costs for which Lessor is reimbursed by insurance,
condemnation or otherwise; (3) interest on debt or
amortization payments on any mortgage or deed to secure debt and
any charges for any costs and expenses incurred in connection with
any refinancing of any debt secured by any mortgage on the
Property; (4) except as otherwise provided in Section 43.C.
below, all professional fees (legal/accounting/consultants) and
other Costs and expenses arising out of the sale of any of the
Property by Lessor or the financing or refinancing of any loan
secured by all or any portion of the Property;
(5) Lessor’s general corporate overhead and general
corporate administrative expenses including any costs related to
Lessor’s maintenance of an office; (6) late charges and
other penalties incurred as a result of Lessor’s failure,
negligence, inability or unwillingness to make payments to any
person or party when due; and (7) any depreciation. Lessee
shall pay and discharge any Additional Rental when the same shall
become due, provided that amounts which are billed to Lessor or any
third party, but not to Lessee, shall be paid within thirty
(30) days after Lessor’s demand for payment thereof or,
if later, when the same are due. In no event shall Lessee be
required to pay to Lessor
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any item of
Additional Rental that Lessee is obligated to pay and has paid to
any third party pursuant to any provision of this Lease.
E. Payment of Rental and Other
Monetary Obligations . All Rental and other Monetary
Obligations which Lessee is required to pay hereunder shall be the
unconditional obligation of Lessee and shall be payable in full
when due without any setoff, abatement, deferment, deduction or
counterclaim whatsoever. Upon execution of this Lease, Lessee shall
establish arrangements whereby payments of the Base Monthly Rental,
any Additional Rental, impound payments (if any), sales tax on real
property tax (if any), and any other Monetary Obligations are
transferred by Automated Clearing House Debit initiated by Lessor
from an account established by Lessee at a United States bank or
other financial institution to such account as Lessor may
designate. Any delinquent payment shall, in addition to any other
remedy of Lessor, incur a late charge of five percent (5%) (which
late charge is intended to compensate Lessor for the cost of
handling and processing such delinquent payment and should not be
considered interest) and bear interest at the Default Rate, such
interest to be computed from and including the date such payment
was due through and including the date of the payment; provided,
however, in no event shall Lessee be obligated to pay a sum of late
charge and interest higher than the maximum legal rate then in
effect.
5. Representations and
Warranties of Lessor . The representations and
warranties of Lessor contained in this Section are being made to
induce Lessee to enter into this Lease and Lessee has relied and
will continue to rely upon such representations and warranties.
Lessor represents and warrants to Lessee as follows:
A. Organization, Authority and
Status of Lessor. Lessor has been duly organized and is validly
existing and in good standing under the laws of the State of
Delaware. All necessary corporate action has been taken to
authorize the execution, delivery and performance by Lessor of this
Lease and of the other documents, instruments and agreements
provided for herein. The person who has executed this Lease on
behalf of Lessor is duly authorized to do so.
B. Enforceability. This Lease
constitutes the legal, valid and binding obligation of Lessor,
enforceable against Lessor in accordance with its terms.
C. Litigation. There are no
suits, actions, proceedings or investigations pending, or to the
best of its knowledge, threatened against or involving Lessor
before any arbitrator or Governmental Authority which might
reasonably result in any material adverse change in the
contemplated business, condition, worth or operations of
Lessor.
D. Absence of Breaches or
Defaults. Lessor is not in default under any document,
instrument or agreement to which Lessor is a party or by which
Lessor or any of Lessor’s property is subject or bound. The
authorization, execution, delivery and performance of this Lease
and the documents, instruments and agreements provided for herein
will not result in any breach of or default under any document,
instrument or agreement to which Lessor is a party or by which
Lessor or any of Lessor’s property is subject or bound.
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6. Representations and
Warranties of Lessee . The representations and
warranties of Lessee contained in this Section are being made to
induce Lessor to enter into this Lease and Lessor has relied, and
will continue to rely, upon such representations and warranties.
Lessee represents and warrants to Lessor as follows:
A. Organization, Authority and
Status of Lessee . Lessee has been duly organized or formed, is
validly existing and in good standing under the laws of its State
of Delaware and is qualified as a foreign limited liability company
to do business in any jurisdiction where such qualification is
required, including the State. All necessary limited liability
company action has been taken to authorize the execution, delivery
and performance by Lessee of this Lease and of the other documents,
instruments and agreements provided for herein. Lessee is not a
“foreign limited liability company”, “foreign
corporation”, “foreign partnership”,
“foreign trust” or “foreign estate”, as
those terms are defined in the Code and the regulations promulgated
thereunder. Lessee’s United States tax identification number
is correctly set forth on the signature page of this Lease. The
person who has executed this Lease on behalf of Lessee is duly
authorized to do so. The address of Lessee stated in
Section 24 is the principal place of business and principal
executive office of Lessee, and Lessee will provide Lessor with
written notice of any change of location of its principal place of
business or principal executive office within ten (10) days
thereof.
B. Enforceability . This Lease
constitutes the legal, valid and binding obligation of Lessee,
enforceable against Lessee in accordance with its terms.
C. Litigation . Except as
described in Schedule 6.C. attached hereto, there are no
suits, actions, proceedings or investigations pending, or to its
current actual knowledge, threatened against or involving Lessee or
the Property before any arbitrator or Governmental Authority which
might reasonably result in any material adverse change in the
contemplated business, condition, worth or operations of Lessee or
the Property.
D. Absence of Breaches or
Defaults . Except as described in Schedule 6.D. attached
hereto, to its current actual knowledge, Lessee is not in default
under any document, instrument or agreement to which Lessee is a
party or by which Lessee, the Property or any of Lessee’s
property is subject or bound. The authorization, execution,
delivery and performance of this Lease and the documents,
instruments and agreements provided for herein will not result in
any breach of or default under any document, instrument or
agreement to which Lessee is a party or by which Lessee, the
Property or any of Lessee’s property is subject or
bound.
E. Licenses and Permits . To
its current actual knowledge, Lessee has obtained all required
licenses and permits, both governmental and private, to use and
operate the Property as a Permitted Facility.
F. Financial Condition;
Information Provided to Lessor . The financial statements, all
financial data and all other documents and information heretofore
delivered to Lessor by or with respect to Lessee, Guarantor and/or
the Property in connection with this Lease and/or relating to
Lessee, Guarantor and/or the Property are true, correct and
complete in all material respects, there have been no
amendments
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thereto since
the date such items were prepared or delivered to Lessor, and no
change has occurred to any such financial statements, financial
data, documents and other information not disclosed in writing to
Lessor, which would result in a Material Adverse Effect.
G. Compliance with Anti-Terrorism,
Embargo, Sanctions and Anti-Money Laundering Laws . Lessee, and
to Lessee’s current actual knowledge, each of the Lessee
Entities is not currently identified on the OFAC List, and is not a
Person with whom a citizen of the United States is prohibited from
engaging in transactions by any trade embargo, economic sanction,
or other prohibition of United States law, regulation, or executive
order of the President of the United States. The Lessee has
implemented procedures, and will consistently apply those
procedures throughout the Lease Term, to ensure the foregoing
representations and warranties remain true and correct during the
Lease Term.
H. Solvency . There is no
contemplated, pending or threatened Insolvency Event or similar
proceedings, whether voluntary or involuntary, affecting Lessee, or
to Lessee’s current actual knowledge, its shareholders or
Affiliates. Lessee does not have unreasonably small capital to
conduct its business.
I. Ownership . Neither Lessee
nor any Affiliate of Lessee that actually or constructively owns
ten percent (10%) or more of the outstanding capital stock of
Lessor owns, directly or indirectly, (i) ten percent (10%) or
more of the total combined voting power of all classes of voting
capital stock of Lessee, or (ii) ten percent (10%) or more of
the total value of all classes of capital stock of Lessee.
7. Rentals To Be Net to
Lessor. The Base Annual Rental payable hereunder shall be net
to Lessor, so that this Lease shall yield to Lessor the Rentals
specified during the Lease Term, and all Costs and obligations of
every kind and nature whatsoever relating to the Property shall be
performed and paid by Lessee.
8. Taxes and
Assessments. Lessee shall pay, prior to the earlier of
delinquency or the accrual of interest on the unpaid balance, all
taxes and assessments of every type or nature assessed against or
imposed upon the Property or Lessee during the Lease Term,
including without limitation, all taxes or assessments upon the
Property or any part thereof and upon any personal property, trade
fixtures and improvements located on the Property, whether
belonging to Lessor or Lessee, or any tax or charge levied in lieu
of such taxes and assessments; all taxes, charges, license fees and
or similar fees imposed by reason of the use of the Property by
Lessee; and all excise, transaction, privilege, license, sales, use
and other taxes upon the Rental or other Monetary Obligations
hereunder, the leasehold estate of either party or the activities
of either party pursuant to this Lease.
Within thirty (30) days after
each tax and assessment payment is required by this Section to be
paid, Lessee shall, upon prior written request of Lessor, provide
Lessor with evidence reasonably satisfactory to Lessor that such
payment was made in a timely fashion. Lessee may, at its own
expense, contest or cause to be contested (in the case of any item
involving more than $10,000.00, after prior written notice to
Lessor), by appropriate legal proceedings conducted in good faith
and with due diligence, any above-described item or lien with
respect thereto, including,
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without
limitation, the amount or validity or application, in whole or in
part, of any such item, provided that (A) neither the Property
nor any interest therein would be in any danger of being sold,
forfeited or lost by reason of such proceedings, (B) no Event
of Default has occurred, and (C) Lessee shall promptly provide
Lessor with copies of all notices received or delivered by Lessee
and filings made by Lessee in connection with such
proceeding.
9. Utilities. Lessee
shall be responsible for and shall pay, or cause to be paid, all
charges or fees related to the connection and use of water, gas,
electricity, telephone, garbage collection, sewer use and other
utility services supplied to the Property during the Lease Term.
Under no circumstances shall Lessor be responsible for the
provision of utility services to the Property or for any
interruption thereof.
10. Insurance.
Throughout the Lease Term, Lessee shall maintain, with respect to
the Property, at its sole expense, the following types and amounts
of insurance (which may be included under a blanket insurance
policy if all the other terms hereof are satisfied), in addition to
such other insurance as Lessor may reasonably require from time to
time:
A. Insurance against loss, damage or
destruction by fire and other casualty, including theft, vandalism
and malicious mischief, flood (if the Property is in a location
designated by the Federal Emergency Management Administration as a
Special Flood Hazard Area), earthquake (if the Property is in an
area subject to destructive earthquakes within recorded history),
boiler explosion (if there is any boiler upon the Property), plate
glass breakage, sprinkler damage (if the Property has a sprinkler
system), all matters covered by a special coverage endorsement
commonly known as an “all-risk” endorsement and such
other risks as Lessor may reasonably require, insuring the Property
for not less than 100% of its full insurable replacement
cost.
B. Comprehensive general liability
and property damage insurance, including a products liability
clause, covering Lessor and Lessee against bodily injury liability,
property damage liability and automobile bodily injury and property
damage liability, including without limitation any liability
arising out of the ownership, maintenance, repair, condition or
operation of the Property or adjoining ways, streets, parking lots
or sidewalks. Such insurance policy or policies shall contain a
broad form contractual liability endorsement under which the
insurer agrees to insure Lessee’s obligations under
Section 15 hereof to the extent insurable, and a
“severability of interest” clause or endorsement which
precludes the insurer from denying the claim of Lessee or Lessor
because of the negligence or other acts of the other, shall be in
amounts of not less than $1,000,000.00 per injury and occurrence
with respect to any insured liability, whether for personal injury
or property damage, or such higher limits as Lessor may reasonably
require from time to time, and shall be of form and substance
satisfactory to Lessor.
C. State Worker’s Compensation
insurance in the statutorily mandated limits.
D. Business income insurance or
rental interruption insurance, as requested by Lessor, equal to
100% of the Base Annual Rental for a period of not less than six
months.
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All insurance
policies shall:
(i) Provide for a waiver of
subrogation by the insurer as to claims against Lessor, its
employees and agents, and provide that the insurer shall not deny a
claim and that such insurance cannot be unreasonably cancelled,
invalidated or suspended on account of the conduct of Lessee, its
officers, directors, employees or agents, or anyone acting for
Lessee or any subtenant or other occupant of the Property;
(ii) Provide that any “no other
insurance” clause in the insurance policy shall exclude any
policies of insurance maintained by Lessor and that the insurance
policy shall not be brought into contribution with insurance
maintained by Lessor;
(iii) Contain a standard without
contribution mortgage clause endorsement in favor of any lender
designated by Lessor;
(iv) Provide that the policy of
insurance shall not be terminated, cancelled or substantially
modified without at least thirty (30) days’ prior
written notice to Lessor and to any lender covered by any standard
mortgage clause endorsement;
(v) Provide that the insurer shall
not have the option to restore the Property if Lessor elects to
terminate this Lease in accordance with the terms hereof; and
(vi) Be issued by insurance companies
licensed to do business in the State and which are rated A:VI or
better by Best’s Insurance Guide or are otherwise approved by
Lessor.
It is expressly understood and agreed
that the foregoing minimum limits of insurance coverage shall not
limit the liability of Lessee for its acts or omissions as provided
in this Lease. All insurance policies (with the exception of
worker’s compensation insurance to the extent not available
under statutory law) shall designate Lessor, and its respective
successors and assigns, and any mortgagee of Lessor as additional
insureds as their interests may appear and shall be payable as set
forth in Section 18 hereof. All such policies shall be written
as primary policies, with deductibles not to exceed $100,000.00.
Lessee shall procure policies for all insurance for periods of not
less than one year and shall provide to Lessor and any servicer or
lender of Lessor certificates of insurance or, upon Lessor’s
request, duplicate originals of insurance policies evidencing that
insurance satisfying the requirements of this Lease is in effect at
all times.
11. Tax and Insurance
Impound. Upon the occurrence of an Event of Default, in
addition to any other remedies, Lessor may require Lessee to pay to
Lessor sums which will provide an impound account (which shall not
be deemed a trust fund) for paying up to the next one year of
taxes, assessments and/or insurance premiums. Upon such
requirement, Lessor will estimate the amounts needed for such
purposes and will notify Lessee to pay the same to Lessor in equal
monthly installments, as nearly as practicable, in addition to all
other Monetary Obligations due under this Lease. Should additional
funds be required at any time, Lessee shall pay the same to Lessor
within five (5) business days of demand. Lessee shall advise
Lessor of
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all
taxes and insurance bills which are due and shall cooperate fully
with Lessor in assuring that the same are paid. Lessor may deposit
all impounded funds in accounts insured by any federal or state
agency and may commingle such funds with other funds and accounts
of Lessor. Interest or other gains from such funds, if any, shall
be the sole property of Lessor. In the event of any default by
Lessee, Lessor may apply all impounded funds against any sums due
from Lessee to Lessor. Lessor shall give to Lessee an annual
accounting showing all credits and debits to and from such
impounded funds received from Lessee.
12. Compliance With Laws,
Restrictions, Covenants and Encumbrances.
A. Compliance . Lessee’s
use and occupation of the Property, and the condition thereof,
shall, at Lessee’s sole cost and expense, comply fully with
all Legal Requirements and all restrictions, covenants and
encumbrances of record with respect to the Property, in either
event, the failure with which to comply could have a Material
Adverse Effect. Without in any way limiting the foregoing
provisions, Lessee shall comply with all Legal Requirements
relating to money laundering, anti-terrorism, trade embargos and
economic sanctions, now or hereafter in effect. Upon the
Lessor’s written request from time to time during the Lease
Term, Lessee shall certify in writing to Lessor that Lessee’s
representations, warranties and obligations under Section 6.G
and this Section 12.A remain true and correct and have not
been breached. Lessee shall immediately notify Lessor in writing if
it becomes aware that any of such representations, warranties or
covenants are no longer true or have been breached or if Lessee has
a reasonable basis to believe that they may no longer be true or
have been breached. In connection with such an event, Lessee shall
comply with all Legal Requirements and directives of Governmental
Authorities and, at Lessor’s request, provide to Lessor
copies of all notices, reports and other communications exchanged
with, or received from, Governmental Authorities relating to such
an event. Lessee shall also reimburse Lessor for all Costs incurred
by Lessor in evaluating the effect of such an event on the Property
and this Lease, in obtaining any necessary license from
Governmental Authorities as may be necessary for Lessor to enforce
its rights under the Transaction Documents, and in complying with
all Legal Requirements applicable to Lessor as the result of the
existence of such an event and for any penalties or fines imposed
upon Lessor as a result thereof.
B. Acts Resulting in Increased
Insurance Rates . Lessee will use its best efforts to prevent
any act or condition to exist on or about the Property which will
materially increase any insurance rate thereon, except when such
acts are required in the normal course of its business and Lessee
shall pay for such increase.
C. ADA . Without limiting the
generality of the other provisions of this Section, Lessee agrees
that it shall be responsible for complying in all respects with the
Americans with Disabilities Act of 1990, as such act may be amended
from time to time, and all regulations promulgated thereunder
(collectively, the “ ADA ”), as it affects the
Property. Lessee agrees that it will defend, indemnify and hold
harmless the Indemnified Parties from and against any and all
Losses caused by, incurred or resulting from Lessee’s failure
to comply with its obligations under this Section.
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D. Environmental .
(i) Representations and
Warranties . Lessee represents and warrants to Lessor, which
representations and warranties shall survive the execution and
delivery of this Lease, as follows:
(1) To Lessee’s current actual
knowledge, and except as set forth on Exhibit C
attached hereto, the Property and Lessee are not in violation of or
subject to, any pending or, to Lessee’s current actual
knowledge, threatened investigation or inquiry by any Governmental
Authority or to any remedial obligations under any Environmental
Laws that could have a Material Adverse Effect, nor has Lessee
received any written or oral notice or other communication from any
Person (including but not limited to a Governmental Authority) with
respect to the Property relating to (I) Hazardous Materials or
Remediation thereof; (II) possible liability of any Person
pursuant to any Environmental Law; (III) other environmental
conditions; or (IV) any actual or potential administrative or
judicial proceedings in connection with any of the foregoing that
could have a Material Adverse Effect. The foregoing representations
and warranties would continue to be true and correct following
disclosure to the applicable Governmental Authorities of all
relevant facts, conditions and circumstances, if any, pertaining to
the Property.
(2) To Lessee’s current actual
knowledge, except to the extent set forth on Exhibit C
attached hereto, (I) all uses and operations on or of the
Property, whether by Lessee or any other Person, have been in
compliance with all Environmental Laws and environmental permits
issued pursuant thereto; (II) there have been no Releases in,
on, under or from the Property, or from other property migrating
toward the Property, except in Permitted Amounts; (III) there
are no Hazardous Materials in, on, or under the Property, except in
Permitted Amounts; (IV) the Property has been kept free and
clear of all liens and other encumbrances imposed pursuant to any
Environmental Law (the “ Environmental Liens ”);
and (V) Lessee has not allowed any other tenant or other user
of the Property to do any act that materially increased the dangers
to human health or the environment, posed an unreasonable risk of
harm to any Person (whether on or off the Property), impaired the
value of the Property in any material respect, is contrary to any
requirement set forth in the insurance policies maintained by
Lessor, constituted a public or private nuisance, constituted
waste, or violated any covenant, condition, agreement or easement
applicable to the Property.
(ii) Covenants .
(1) Lessee covenants to Lessor during
the Lease Term, subject to the limitations of subsection
(2) below, as follows:
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(I) The Property and Lessee shall not
be (a) in violation of any Remediation required by any
Governmental Authority or (b) subject to any Remediation
obligations under any Environmental Laws. Lessee shall not be in
violation of any investigation or inquiry by any Governmental
Authority.
(II) All uses and operations on or of
the Property, whether by Lessee or any other Person, shall be in
compliance with all Environmental Laws and permits issued pursuant
thereto.
(III) There shall be no Releases in,
on, under or from the Property, except in Permitted Amounts.
(IV) There shall be no Hazardous
Materials in, on or under the Property, except in Permitted
Amounts.
(V) Lessee shall keep the Property or
cause the Property to be kept free and clear of all Environmental
Liens, whether due to any act or omission of Lessee or any other
Person.
(VI) Lessee shall not do or allow any
other tenant or other user of the Property to do any act that
(a) materially increases the dangers to human health or the
environment, (b) poses an unreasonable risk of harm to any
Person (whether on or off the Property), (c) has a Material
Adverse Effect, (d) is contrary to any material requirement
set forth in the insurance policies maintained by Lessee,
(e) constitutes a public or private nuisance or constitutes
waste, or (f) violates any covenant, condition, agreement or
easement applicable to the Property.
(2) Notwithstanding any provision of
this Lease to the contrary, an Event of Default shall not be deemed
to have occurred as a result of the failure of Lessee to satisfy
any one or more of the covenants set forth in subsections
(I) through (VI) above provided that Lessee shall be in
compliance with the requirements of any Governmental Authority with
respect to the Remediation of any Release at the Property.
(iii) Notification
Requirements . Lessee shall immediately notify Lessor in
writing upon Lessee obtaining actual knowledge of (1) any
Releases or Threatened Releases in, on, under or from the Property
other than in Permitted Amounts, or migrating towards the Property;
(2) any non-compliance with any Environmental Laws related in
any way to the Property; (3) any actual or potential
Environmental Lien; (4) any required or proposed Remediation
of environmental conditions relating to the Property required by
applicable Governmental Authorities; and (5) any written or
oral notice or other communication which Lessee becomes aware from
any source whatsoever (including but not limited to a Governmental
Authority) relating in any way to Hazardous Materials or
Remediation thereof at or on the Property, other than in
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Permitted
Amounts, possible liability of any Person relating to the Property
pursuant to any Environmental Law, other environmental conditions
in connection with the Property, or any actual or potential
administrative or judicial proceedings in connection with anything
referred to in this Section. Lessee shall, upon Lessor’s
written request, deliver to Lessor a certificate stating that
Lessee is and has been in full compliance with all of the
environmental representations, warranties and covenants in this
Lease.
(iv) Remediation . Lessee
shall, at its sole cost and expense, and without limiting any other
provision of this Lease, effectuate any Remediation required by any
Governmental Authority of any condition (including, but not limited
to, a Release) in, on, under or from the Property and take any
other reasonable action deemed necessary by any Governmental
Authority for protection of human health or the environment. Should
Lessee fail to undertake such Remediation in accordance with the
preceding sentence, Lessor, after written notice to Lessee and
Lessee’s failure to immediately undertake such Remediation,
shall be permitted to complete such Remediation, and all reasonable
Costs incurred in connection therewith shall be paid by
Lessee.
(v) Indemnification . Lessee
shall, at its sole cost and expense, protect, defend, indemnify,
release and hold harmless each of the Indemnified Parties from and
against any and all Losses, including, but not limited to, all
Costs of Remediation (whether or not performed voluntarily),
arising out of or in any way relating to any Environmental Laws,
Hazardous Materials or other environmental matters concerning the
Property. It is expressly understood and agreed that Lessee’s
obligations under this Section shall survive the expiration or
earlier termination of this Lease for any reason.
13. Condition of Property;
Maintenance. Lessee hereby accepts the Property “AS
IS” and “WHERE IS” with no representation or
warranty of Lessor as to the condition thereof. The Property shall
be kept in good, clean, sanitary and working condition, and Lessee
shall at all times at its own expense maintain, repair and replace,
as necessary, the Property, including all portions of the Property,
whether or not the Property was in such condition on the Effective
Date.
14. Waste; Alterations and
Improvements. Lessee shall not commit actual or constructive
waste upon the Property. During the Lease Term, Lessee shall not
alter the exterior, structural, plumbing or electrical elements of
the Property in any manner without the consent of Lessor, which
consent shall not be unreasonably withheld or conditioned;
provided, however, Lessee may undertake nonstructural
alterations to the Property, individually, costing less than
$100,000.00 without Lessor’s prior written consent. If
Lessor’s consent is required hereunder and Lessor consents to
the making of any such alterations, the same shall be made by
Lessee at Lessee’s sole expense by a licensed contractor and
according to plans and specifications approved by Lessor and
subject to such other conditions as Lessor shall require. Any work
at any time commenced by Lessee on the Property shall be prosecuted
diligently to completion, shall be of good workmanship and
materials and shall comply fully with all the terms of this Lease.
Upon completion of any alterations, Lessee shall promptly provide
Lessor with (A) evidence of full payment to all laborers and
materialmen contributing to the alterations, (B) an
architect’s certificate certifying the alterations to have
been completed in conformity with
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the
plans and specifications, (C) a certificate of occupancy (if
the alterations are of such a nature as would require the issuance
of a certificate of occupancy), and (D) any other documents or
information reasonably requested by Lessor. Lessee shall execute
and file or record, as appropriate, a “Notice of
Non-Responsibility,” or any equivalent notice permitted under
applicable law in the State. Any addition to or alteration of the
Property shall be deemed a part of the Property and belong to
Lessor, and Lessee shall execute and deliver to Lessor such
instruments as Lessor may require to evidence the ownership by
Lessor of such addition or alteration.
15. Indemnification.
Lessee shall indemnify, protect, defend and hold harmless each of
the Indemnified Parties from and against any and all Losses
(excluding Losses suffered by an Indemnified Party arising out of
such Indemnified Party’s negligence or intentional
misconduct) caused by, incurred or resulting from Lessee’s
use and occupancy of the Property, whether relating to its original
design or construction, latent defects, alteration, maintenance,
use by Lessee or any Person thereon, supervision or otherwise, or
from any breach of, default under, or failure to perform, any term
or provision of this Lease by Lessee, its officers, employees,
agents or other Persons. It is expressly understood and agreed that
Lessee’s obligations under this Section shall survive the
expiration or earlier termination of this Lease for any reason.
Lessor shall indemnify, defend and hold harmless Lessee and its
directors, officers, shareholders, partners, members, employees
agents, servants, representatives, contractors, subcontractors,
affiliates, subsidiaries, participants, successors and assigns,
including, but not limited to, any successors by merger,
consolidation or acquisition of all or a substantial portion of the
assets and business of Lessee (“Lessee Indemnified
Parties”) from and against any and all Losses (excluding
Losses suffered by such Lessee Indemnified Parties arising out of
such Lessee’s Indemnified Parties’ negligence or
intentionally misconduct) arising from any default by Lessor of
this Lease.
16. Quiet Enjoyment. So
long as Lessee shall pay the Rental and other Monetary Obligations
herein provided and shall keep and perform all of the terms,
covenants and conditions on its part herein contained, Lessee shall
have, subject and subordinate to Lessor’s rights herein, the
right to the peaceful and quiet occupancy of the Property.
17. Inspection. Lessor
and its authorized representatives shall have the right, at all
reasonable times and upon giving reasonable prior notice (except in
the event of an emergency, in which case no prior notice shall be
required), to enter the Property or any part thereof and inspect
the same. Lessee hereby waives any claim for damages for any injury
or inconvenience to or interference with Lessee’s business,
any loss of occupancy or quiet enjoyment of the Property and any
other loss occasioned by such entry, but, subject to
Section 37, excluding damages arising as a result of the
negligence or intentional misconduct of Lessor.
18. Condemnation and
Casualty.
A. Notification . Lessee shall
promptly give Lessor and any mortgagee (if required by the terms of
any applicable mortgage or deed of trust and Lessee has received
notice thereof) written notice of (i) any Condemnation of the
Property or any part thereof, (ii) the commencement of any
proceedings or negotiations which might result in a Condemnation of
the Property or any part thereof, and (iii) any Casualty to
the Property or any part thereof. Such notice shall provide a
general description of the nature and
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extent of such
Condemnation, proceedings, negotiations or Casualty, and shall
include copies of any documents or notices received in connection
therewith. Thereafter, Lessee shall promptly send Lessor copies of
all notices, correspondence and pleadings relating to any such
Condemnation, proceedings, negotiations or Casualty.
B. Partial Condemnation or
Casualty . Except as otherwise provided in Section 18.C,
in the event of a Condemnation which is not a Total Condemnation or
a Temporary Condemnation (“ Partial Condemnation
”), or a Casualty which is not a Total Casualty (a “
Partial Casualty ”), all Net Awards shall be paid to
Lessor. In the event of a Partial Condemnation or a Partial
Casualty, Lessor shall have the option to terminate this Lease by
notifying Lessee in writing within thirty (30) days after
Lessee gives Lessor notice of such Partial Condemnation or Partial
Casualty or that title has vested in the condemning authority, or
to continue this Lease in effect, which election shall be evidenced
by either a notice from Lessor to Lessee, or Lessor’s failure
to notify Lessee in writing that Lessor has elected to terminate
this Lease within such thirty (30) day period. Lessee shall
have a period of sixty (60) days after receipt of the
Lessor’s notice to terminate referenced above during which to
elect, despite such Lessor notice of termination, to continue this
Lease on the terms herein provided. If Lessee does not elect to
continue this Lease or shall fail during such sixty (60) day
period to notify Lessor of Lessee’s intent to continue this
Lease, then this Lease shall terminate as of the last day of the
month during which such sixty (60) day period expired. Lessee
shall vacate and surrender the Property by such termination date,
in accordance with the provisions of this Lease, and all
obligations of either party hereunder shall cease as of the date of
termination ( provided, however , Lessee’s obligations
to the Indemnified Parties under any indemnification provisions of
this Lease and Lessee’s obligations to pay Rental and all
other Monetary Obligations (whether payable to Lessor or a third
party) accruing under this Lease prior to the date of termination
shall survive such termination). In such event, Lessor may retain
all Net Awards related to the Partial Condemnation or Partial
Casualty, and Lessee shall immediately pay Lessor an amount equal
to the insurance deductible applicable to any Partial
Casualty.
If Lessor elects not to terminate
this Lease, or if Lessor elects to terminate this Lease (as
provided above) but Lessee elects to continue this Lease, then this
Lease shall continue in full force and effect on the following
terms: all Rental and other Monetary Obligations due under this
Lease shall continue unabated, and Lessee shall promptly commence
and diligently prosecute restoration of the Property to the same
condition, as nearly as practicable, as prior to such Partial
Condemnation or Partial Casualty as approved by Lessor. As the
restoration of the Property progresses, upon the written request of
Lessee (accompanied by evidence reasonably satisfactory to Lessor
that such amount has been paid or is due and payable and is
properly part of such costs and that Lessee has complied with the
terms of Section 13 in connection with the restoration),
Lessor shall promptly make available in installments, subject to
reasonable conditions for disbursement imposed by Lessor, an amount
up to but not exceeding the amount of any Net Award received by
Lessor with respect to such Partial Condemnation or Partial
Casualty. Prior to the disbursement of any portion of the Net Award
with respect to a Partial Casualty, Lessee shall provide evidence
reasonably satisfactory to Lessor of the payment of restoration
expenses by Lessee up to the amount of the insurance deductible
applicable to such Partial Casualty. Lessee shall be entitled to
keep any portion of the
13
Net Award which
may be in excess of the cost of restoration, and Lessee shall bear
all additional Costs of such restoration in excess of the Net
Award.
C. Total Condemnation and Total
Casualty . In the event of a Condemnation of all or
substantially all of the Property or a Partial Condemnation, in
either event that results in Lessee making a good faith
determination that the restoration and continued use of the
remainder of the Property as a Permitted Facility would be
uneconomic (collectively, a “ Total Condemnation
”), or a Casualty of all or substantially all of the Property
or a Partial Casualty, in either event that results in Lessee
making a good faith determination that the restoration and
continued use of the Property as a Permitted Facility would be
uneconomic (collectively, a “ Total Casualty ”),
then, in such event:
(i) Awards . Lessor shall be
entitled to receive the entire Net Award in connection therewith
without deduction for any estate vested in Lessee by this Lease,
and Lessee hereby expressly assigns to Lessor all of its right,
title and interest in and to every such Net Award and agrees that
Lessee shall not be entitled to any Net Award or other payment for
the value of Lessee’s leasehold interest in this Lease.
Lessee shall be entitled to claim and receive any award or payment
from the condemning authority expressly granted for the taking of
the Lessee Personalty, any insurance proceeds with respect to the
Lessee Personalty, the interruption of its business and moving
expenses, but only if such claim or award does not adversely affect
or interfere with the prosecution of Lessor’s claim for the
Total Condemnation or Total Casualty or otherwise reduce the amount
recoverable by Lessor for the Total Condemnation.
(ii) Option To Terminate .
Lessee shall have the right to terminate this Lease by notice (the
“ Termination Notice ”) given to Lessor not
later than thirty (30) days after the Total Condemnation or
Total Casualty, as applicable. The Termination Notice must:
(1) specify a date on which this Lease shall terminate, which
date shall be the last day of a calendar month occurring not
earlier than one hundred twenty (120) days and not later than
one hundred fifty (150) days after the delivery of such notice
(the “ Early Termination Date ”);
(2) contain a certificate executed by a manager of Lessee
which (I) describes the Total Condemnation or Total Casualty,
and (II) represents and warrants that either all of the
Property has been taken, damaged or destroyed, or that
substantially all of the Property has been taken, damaged or
destroyed, and Lessee has determined in good faith that the
restoration and continued use of the remainder of the Property as a
Permitted Facility would be uneconomic; and (3) if the Early
Termination Date shall occur prior to the commencement of any
Extension Options which may be exercised pursuant to
Section 3, contain an irrevocable rejectable written offer
(the “ Rejectable Offer ”) of Lessee to purchase
Lessor’s interest in the Property and in the Net Award for
the Total Condemnation or Total Casualty, as applicable, on the
Early Termination Date for a purchase price (the “ Loss
Value ”) equal to the greater of the fair market value of
the Property as of the Early Termination Date, or Lessor’s
Total Investment.
(iii) Early Termination Date .
If the Early Termination Date shall occur prior to the commencement
of any Extension Options which may be exercised
14
pursuant to
Section 3, Lessor shall have sixty (60) days from the
delivery of the Termination Notice to deliver to Lessee written
notice of its election to either accept or reject any Rejectable
Offer contained in the Termination Notice. Lessor’s failure
to deliver such notice within such time period shall be deemed to
constitute Lessor’s acceptance of the applicable Rejectable
Offer.
(iv) Lessor Acceptance of
Rejectable Offer . If Lessor accepts or is deemed to have
accepted the Rejectable Offer, then on the Early Termination Date
or such other date as the parties may mutually agree in writing,
Lessor shall sell and convey, and Lessee shall purchase for the
applicable Loss Value, Lessor’s interest in the Property and
the Net Award. Lessee’s obligations under this Lease shall
not be terminated until the applicable Loss Value and all Rental
and other Monetary Obligations due and payable under this Lease
prior to the Early Termination Date, or such other date as the
parties may mutually agree in writing, are paid in full. Upon such
payment, (1) Lessor shall convey the Property to Lessee
“as-is” by special warranty deed, subject to all
matters of record, except for consensual liens, encumbrances or
other interests granted by Lessor (other than those granted by
Lessor at the request of Lessee), and without representations other
than those required by applicable Law; and (2) all obligations
of either party hereunder with respect to the Property shall cease
as of the Early Termination Date, provided, however ,
Lessee’s obligations to the Indemnified Parties under any
indemnification provisions of this Lease and Lessee’s
obligations to pay any Monetary Obligations (whether payable to
Lessor or a third party) accruing under this Lease prior to the
Early Termination Date shall survive the termination of this
Lease.
(v) Lessor Rejection of Rejectable
Offer . If Lessor rejects the Rejectable Offer or if the Early
Termination Date shall occur after the commencement of any
Extension Options exercised pursuant to Section 3, then
(1) the Net Award shall be paid to and belong to Lessor;
(2) on the Early Termination Date, Lessee shall pay to Lessor
all Rental and other Monetary Obligations then due and payable
under this Lease; and (3) all obligations of either party
hereunder shall cease as of the Early Termination Date;
provided, however , Lessee’s obligations to the
Indemnified Parties under any indemnification provisions of this
Lease and Lessee’s obligations to pay any sums (whether
payable to Lessor or a third party) accruing under this Lease prior
to the Early Termination Date shall survive the termination of this
Lease.
D. Payment of Costs . Lessee
shall be solely responsible for the payment of all Costs incurred
in connection with the conveyance of the Property to Lessee
pursuant to this Section 18, including, without limitation, to
the extent applicable, the cost of title insurance, survey charges,
stamp taxes, mortgage taxes, transfer fees, escrow and recording
fees, taxes imposed on Lessor as a result of such conveyance, taxes
imposed in connection with the transfer of the Property to Lessee
or the termination of this Lease pursuant to the provisions of this
Section 18, Lessee’s attorneys’ fees, and the
reasonable attorneys’ fees and expenses of counsel to
Lessor.
15
E. Insurance . Any loss under
any property damage insurance required to be maintained by Lessee
shall be adjusted by Lessor and Lessee. Any award relating to a
Total Condemnation or a Partial Condemnation shall be adjusted by
Lessor or, at Lessor’s election, Lessee. Notwithstanding the
foregoing or any other provisions of this Section 18 to the
contrary, if at the time of any Condemnation or any Casualty or at
any time thereafter an Event of Default shall have occurred and be
continuing, Lessor is hereby authorized and empowered but shall not
be obligated, in the name and on behalf of Lessee and otherwise, to
file and prosecute Lessee’s claim, if any, for a Net Award on
account of such Condemnation or such Casualty and to collect such
Net Award and apply the same to the curing of such Event of Default
and any other then existing Event of Default under this Lease
and/or to the payment of any amounts owed by Lessee to Lessor under
this Lease, in such order, priority and proportions as Lessor in
its discretion shall deem proper.
F. Lessee Obligation in Event of
Casualty . During all periods of time following a Casualty,
Lessee shall take reasonable steps to ensure that the Property is
secure and does not pose any risk of harm to any adjoining property
and Persons (including owners or occupants of such adjoining
property).
G. No Limitations .
Notwithstanding the foregoing, nothing in this Section 18
shall be construed as limiting or otherwise adversely affecting the
representations, warranties, covenants and characterizations set
forth in Lease.
19. Fair Market Value .
With respect to the determination of fair market value for any
purpose under this Lease, if the parties are unable to agree upon
the fair market value, Lessee shall, at Lessee’s sole
expense, nominate to Lessor a list of not less than three
independent MAI appraisers from national companies who have offices
in at least five states and who are experienced with appraising
property similar to the Property and Lessor shall select one such
appraiser. In determining the fair market value of the Property,
the appraiser shall utilize the cost, income and sales comparison
approaches to value. The highest amount which results from the
calculation of each of the cost approach, the income approach, and
the sales comparison approach, all as determined in accordance with
the provisions of this Section, shall constitute the fair market
value of the Property.
20. Default, Conditional
Limitations, Remedies and Measure of Damages.
A. Each of the following shall be an
event of default by Lessee under this Lease (each, an “
Event of Default ”):
(i) if any representation or warranty
of Lessee set forth in this Lease is false in any material respect,
or if Lessee renders any false statement or account;
(ii) if any Rental or other Monetary
Obligation due under this Lease is not paid when due and such
failure continues for a period of ten (10) days after receipt
of notice thereof by Lessee (provided that in no event shall Lessor
be required to give more than two such notices in any calendar year
if such failure to pay is the principal responsibility of
Lessee);
16
(iii) if Lessee fails to pay, prior
to delinquency, any taxes, assessments or other charges the failure
of which to pay will result in the imposition of a lien against the
Property;
(iv) if there is an Insolvency
Event;
(v) if Lessee vacates or abandons the
Property;
(vi) if Lessee fails to observe or
perform any of the other covenants, conditions or obligations of
Lessee in this Lease; provided, however, if any such failure
does not involve the payment of any Monetary Obligation, is not
willful or intentional, does not place any rights or property of
Lessor in immediate jeopardy, and is within the reasonable power of
Lessee to promptly cure, all as determined by Lessor in its
reasonable discretion, then such failure shall not constitute an
Event of Default hereunder, unless otherwise expressly provided
herein, unless and until Lessor shall have given Lessee notice
thereof and a period of thirty (30) days shall have elapsed,
during which period Lessee may correct or cure such failure, upon
failure of which an Event of Default shall be deemed to have
occurred hereunder without further notice or demand of any kind
being required. If such failure cannot reasonably be cured within
such thirty (30) day period, as determined by Lessor in its
reasonable discretion, and Lessee is diligently pursuing a cure of
such failure, then Lessee shall have a reasonable period to cure
such failure beyond such thirty (30) day period, which shall
in no event exceed ninety (90) days after receiving notice of
such failure from Lessor. If Lessee shall fail to correct or cure
such failure within such ninety (90) day period an Event of
Default shall be deemed to have occurred hereunder without further
notice or demand of any kind being required;
(vii) if a final, nonappealable
judgment is rendered by a court against Lessee which has a Material
Adverse Effect, or which does not have a Material Adverse Effect
but which is in the amount of $100,000.00 or more, and in either
event is not discharged or provision made for such discharge within
ninety (90) days from the date of entry thereof;
(viii) if Lessee shall be liquidated
or dissolved or shall begin proceedings towards its liquidation or
dissolution;
(ix) if the estate or interest of
Lessee in the Property 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; or
(x) if there is an “Event of
Default” or other breach or default by Lessee under any of
the other Transaction Documents or any Other Agreement, after the
passage of all applicable notice and cure or grace periods.
B. Upon the occurrence of an Event of
Default, with or without notice or demand, except as otherwise
expressly provided herein or such other notice as may be required
by statute and cannot be waived by Lessee, Lessor shall be entitled
to exercise,
17
at its option,
concurrently, successively, or in any combination, all remedies
available at law or in equity, including without limitation, any
one or more of the following:
(i) To terminate this Lease,
whereupon Lessee’s right to possession of the Property shall
cease and this Lease, except as to Lessee’s liability, shall
be terminated.
(ii) To the extent not prohibited by
applicable law, to reenter and take possession of the Property (or
any part thereof), any or all personal property or fixtures of
Lessee upon the Property and, to the extent permissible, all
franchises, licenses, area development agreements, permits and
other rights or privileges of Lessee pertaining to the use and
operation of the Property, and to expel Lessee and those claiming
under or through Lessee, without being deemed guilty in any manner
of trespass or becoming liable for any loss or damage resulting
therefrom, without resort to legal or judicial process, procedure
or action. No notice from Lessor hereunder or under a forcible
entry and detainer statute or similar law shall constitute an
election by Lessor to terminate this Lease unless such notice
specifically so states. If Lessee shall, after default, voluntarily
give up possession of the Property to Lessor, deliver to Lessor or
its agents the keys to the Property, or both, such actions shall be
deemed to be in compliance with Lessor’s rights and the
acceptance thereof by Lessor or its agents shall not be deemed to
constitute a termination of the Lease. Lessor reserves the right
following any reentry and/or reletting to exercise its right to
terminate this Lease by giving Lessee written notice thereof, in
which event this Lease will terminate.
(iii) To bring an action against
Lessee for any damages sustained by Lessor or any equitable relief
available to Lessor and to the extent not prohibited by applicable
law, to seize all personal property or fixtures upon the Property
which Lessee owns or in which it has an interest, in which Lessor
shall have a landlord’s lien and/or security interest, and to
dispose thereof in accordance with the laws prevailing at the time
and place of such seizure or to remove all or any portion of such
property and cause the same to be stored in a public warehouse or
elsewhere at Lessee’s sole expense, without becoming liable
for any loss or damage resulting therefrom and without resorting to
legal or judicial process, procedure or action.
(iv) To relet the Property or any
part thereof for such term or terms (including a term which extends
beyond the original Lease Term), at such rentals and upon such
other terms as Lessor, in its sole discretion, may determine, with
all proceeds received from such reletting being applied to the
Rental and other Monetary Obligations due from Lessee in such order
as Lessor may, in it sole discretion, determine, which other
Monetary Obligations include, without limitation, all repossession
costs, brokerage commissions, attorneys’ fees and expenses,
alteration, remodeling and repair costs and expenses of preparing
for such reletting. Except to the extent required by applicable
Law, Lessor shall have no obligation to relet the Property or any
part thereof and shall in no event be liable for refusal or failure
to relet the Property or any part thereof, or, in the event of any
such reletting, for refusal or failure to collect any rent due upon
such
18
reletting, and
no such refusal or failure shall operate to relieve Lessee of any
liability under this Lease or otherwise to affect any such
liability. Lessor reserves the right following any reentry and/or
reletting to exercise its right to terminate this Lease by giving
Lessee written notice thereof, in which event this Lease will
terminate as specified in said notice.
(v) To accelerate and recover from
Lessee all Rental and other Monetary Obligations due and owing and
scheduled to become due and owing under this Lease both before and
after the date of such breach for the entire original scheduled
Lease Term.
(vi) To recover from Lessee all Costs
paid or incurred by Lessor as a result of such breach, regardless
of whether or not legal proceedings are actually commenced.
(vii) To immediately or at any time
thereafter, and with or without notice, at Lessor’s sole
option but without any obligation to do so, correct such breach or
default and charge Lessee all Costs incurred by Lessor therein. Any
sum or sums so paid by Lessor, together with interest at the
Default Rate, shall be deemed to be Additional Rental hereunder and
shall be immediately due from Lessee to Lessor. Any such acts by
Lessor in correcting Lessee’s breaches or defaults hereunder
shall not be deemed to cure said breaches or defaults or constitute
any waiver of Lessor’s right to exercise any or all remedies
set forth herein.
(viii) To immediately or at any time
thereafter, and with or without notice, except as required herein,
set off any money of Lessee held by Lessor under this Lease or any
other Transaction Document or any Other Agreement against any sum
owing by Lessee hereunder.
All powers and remedies given by this
Section to Lessor, subject to applicable Law, shall be cumulative
and not exclusive of one another or of any other right or remedy or
of any other powers and remedies available to Lessor under this
Lease, by judicial proceedings or otherwise, to enforce the
performance or observance of t
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