FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement (this
“Amendment”) is dated as of June 1, 2007, by and
between U.S. Bank, N.A. (as successor-in-interest to State Street
Bank and Trust Company of Connecticut, National Association), as
owner trustee of ZSF/Dallas Tower Trust, a Delaware grantor trust
(as trustee only, and not individually) (“Lessor”), and
TXU Properties Company, a Texas corporation
(“Lessee”).
W I T N E S S E T H :
WHEREAS, by that certain Lease Agreement, dated as of February 14,
2002 (the “Lease”) between Lessor and Lessee, Lessor
demised and leased to Lessee and Lessee rented and leased from
Lessor the Property (as defined in the Lease); and
WHEREAS, Lessor and Lessee desire to make certain modifications to
the Lease subject to the terms hereof.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, Lessor and
Lessee hereby agree as follows:
1.
Defined Terms . Capitalized terms used but not
defined in this Amendment shall have the same meanings as are
ascribed to them in the Lease, unless otherwise noted.
2.
Modifications to Lease . The Lease is hereby
amended, modified and supplemented as follows:
(a)
Section 7.1 is hereby modified by deleting the words
“Guarantor (or Lessee if there is no Guarantor)”
appearing in line 10 thereof and substituting in lieu thereof the
word “Lessee”.
(b)
Section 8.5(a) is hereby modified by: (i) deleting the words
“(or Guarantor)” appearing in lines 16-17 thereof; and
(ii) deleting the words “Guarantor (or Lessee if there is no
Guarantor)” appearing in line 31 thereof and substituting in
lieu thereof the word “Lessee”.
(c)
Section 8.6 is hereby modified by deleting the words
“(or Guarantor)” appearing in line 26
thereof.
(d)
Section 9.1(b) is hereby modified by deleting the words
“Guarantor (or Lessee if there is no Guarantor)”
appearing in line 2 thereof and substituting in lieu thereof the
word “Lessee”.
(e)
Section 11.1 is hereby modified by deleting the terms of the
section in their entirety and substituting in lieu thereof the
following:
“ Assignment by Lessee . So long as no
Lease Event of Default has occurred and is continuing, Lessee may,
at Lessee’s sole expense, without the consent of Lessor,
assign this Lease for a period that does not extend beyond the
Lease Term, to any Affiliate of Lessee that is not, and will at no
time be, an Obligor, provided, however , that any such
Affiliate is not (I) a tax-exempt entity (within the meaning of
Section 168(h) of the Code) or (II) a debtor or
debtor-in-possession in a voluntary or involuntary bankruptcy
proceeding at the commencement of the assignment. For
purposes hereof, an assignment shall be deemed any merger or
consolidation of Lessee which would violate the provisions of (I)
or (II) above. Any assignee shall assume in writing any
obligations of Lessee arising from and after the effective date of
the assignment, provided, however , that no such
assignment shall become effective until (i) a fully executed copy
of an assignment and assumption agreement, reasonably acceptable to
Lessor, Servicer, Indenture Trustee and Lessee, shall have been
delivered to Lessor, the Servicer and the Indenture Trustee, and
(ii) such assignee shall have executed such instruments and other
documents and provided such further assurances as the Indenture
Trustee shall reasonably request to ensure that such assignment is
subject to the Assignment of Lease, the other Debt Documents and
this Lease and is enforceable. Notwithstanding any such
assignment, Lessee shall not be released from its primary liability
hereunder and shall continue to be obligated for all of its
obligations in this Lease, which obligations shall continue in full
effect as obligations of a principal and not of a guarantor or
surety, as though no assignment had been made. Lessee
will have the right, subsequent to any assignment (a) to receive a
duplicate copy of each notice of default sent by Lessor to Lessee
or any assignee (but such notice shall be effective as against the
Lessee, as well as any subsequent assignees, even if a copy has not
been delivered to such requesting assignee), and (b) to cure any
default by Lessee or other assignee under the Lease within the cure
period provided for hereunder. Lessee’s liability
hereunder shall continue notwithstanding the rejection of this
Lease by an assignee or any sublease of this Lease pursuant to
Section 365 of Title 11 of the United States Code, any other
provision of the Bankruptcy Code, or any similar law relating to
bankruptcy, insolvency, reorganization or the rights of creditors,
which arises subsequent to such assignment. In the event
Lessee assigns this Lease and it shall thereafter be rejected in a
bankruptcy or similar proceeding, a new lease identical to this
Lease shall be reinstituted as between Lessor and Lessee without
further act of either party, provided Lessor shall not be obligated
to deliver to Lessee possession of the Property free of any tenancy
created or caused by Lessee or any entity holding by or through
Lessee. Nothing herein shall be construed to permit
Lessee to mortgage, pledge, hypothecate or otherwise collaterally
assign in any manner or nature whatsoever Lessee’s interest
under this Lease in whole or in part. Lessee shall provide written
notice to Lessor, the Servicer and the Indenture Trustee of any
proposed assignment of this Lease at least thirty (30) Business
Days prior to the effective date thereof and an executed copy of
the approved agreement of assignment and assumption within thirty
(30) days after the execution thereof. To the extent an
assignee of this Lease fails to perform on behalf of Lessee the
obligations of Lessee hereunder, and Lessee performs such
obligations, then Lessee shall be subrogated to the rights of
Lessor as against such assignee in respect of such
performance.”
(f)
Section 12.1 is hereby modified by deleting the word
“Guarantor” appearing in line 67 thereof and
substituting in lieu thereof the word
“Lessee”.
(g)
Article 13 is hereby restated in its entirety as
follows:
“ARTICLE 13
LETTER OF CREDIT
Section 13.1. Letter of Credit
. Throughout the Base Term and all applicable Renewal
Terms, the Lessee shall cause the Applicant to provide a Qualified
Letter of Credit satisfying the requirements set forth in this
Article 13; provided that in the event of a draw pursuant to
Section 13.3(b), (c), (d), (e), (f) or (g) below, the Lessee shall
no longer have an obligation to cause the Applicant to provide a
Qualified Letter of Credit. In addition, the Lessee
shall cause each Obligor to waive all direct or indirect rights of
reimbursement, subrogation or other claims against the Lessee with
respect to such Qualified Letter of Credit.
Section 13.2. Replacements . The
Applicant shall have the right at any time to replace any
outstanding Qualified Letter of Credit with another Qualified
Letter of Credit that meets all of the requirements set forth in
this Article 13. Each replacement Qualified Letter of
Credit shall be accompanied by a certificate executed by Lessee
confirming (a) each Obligor has waived all direct or indirect
rights of reimbursement, subrogation or other claims against the
Lessee with respect to such replacement Qualified Letter of Credit,
(b) Lessee is not an Obligor with respect to such replacement
Qualified Letter of Credit, and (c) such replacement Qualified
Letter of Credit is not collateralized with any asset in which the
Lessee has an ownership or other interest.
Section 13.3. Draw
Events .
With respect to any Qualified Letter of Credit, the Beneficiary
shall be permitted thereunder:
(a)
from
time to time, if the Lessee fails to make any payment of Base
Rent on an applicable Rent Payment Date, to draw upon such
Qualified Letter of Credit an amount equal to or less than the
amount of Base Rent that on such Rent Payment Date was due and
payable but not paid and that remains unpaid on the date of
such drawing;
(b)
if
Lessee fails to make a Stipulated Loss Value Payment due and
payable on a Stipulated Loss Value Date pursuant to Section
12.1, to draw upon such Qualified Letter of Credit an amount
equal to or less than the Stipulated Loss Value Payment that
on such Stipulated Loss Value Date was due and payable but not
paid and that remains unpaid on the date of such
drawing;
(c)
if any
Lease Event of Default has occurred and is continuing, to draw
upon such Qualified Letter of Credit an amount equal to the
maximum remaining amount available to be drawn
thereunder;
(d)
if (i) an
Obligor makes any general arrangement or assignment for the benefit
of creditors; (ii) an Obligor becomes a “debtor” as
defined in 11 U.S.C. § 101 of the Bankruptcy Code or any
successor statute thereto (unless, in the case of a petition filed
against such Obligor, the same is dismissed within ninety (90) days
or such Obligor ceases to be an “Obligor” within ninety
(90) days); (iii) the appointment of a trustee or receiver to take
possession of substantially all of the assets of an Obligor where
possession is not restored to such Obligor within ninety (90) days
and such Obligor does not cease to be an “Obligor”
within ninety (90) days; (iv) the attachment, execution or other
judicial seizure of substantially all of the assets of an Obligor
where such attachment, execution or other judicial seizure is not
discharged within ninety (90) days and such Obligor does not cease
to be an “Obligor” within ninety (90) days; (v) an
Obligor admits in writing its inability to pay its debts generally
as they become due; (vi) an Obligor files a petition in
bankruptcy or a petition to take advantage of any insolvency act;
(vii) an Obligor files a petition or answer seeking reorganization
or arrangement or other protection under the Federal bankruptcy
laws or any other applicable law or statute of the United States of
America or any State thereof; (viii) an Obligor is liquidated or
dissolved, or placed under conservatorship or other protection
under any applicable federal or state law or begins proceedings
toward such liquidation or dissolution; (ix) any petition is filed
by or against an Obligor under Federal bankruptcy laws, or any
other proceeding is instituted by or against an Obligor seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation,
reorganization, arrangement, adjustment or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee,
custodian or other similar official for an Obligor, or for any
substantial part of the property of an Obligor, and such proceeding
is not dismissed within ninety (90) days after institution thereof
and such Obligor does not cease to be an “Obligor”
within ninety (90) days after institution thereof; or (x) an
Obligor shall take any action to authorize or effect any of the
actions set forth above in this subsection (d), to draw to draw
upon such Qualified Letter of Credit an amount equal to the maximum
remaining amount available to be drawn thereunder;
(e)
if
(i) an Obligor has any rights of reimbursement, subrogation or
other claims against the Lessee with respect to such Qualified
Letter of Credit, (ii) Lessee is an Obligor with respect to
such Qualified Letter of Credit, or (iii) such Qualified
Letter of Credit is collateralized with any asset in which the
Lessee has an ownership or other interest , to draw upon
such Qualified Letter of Credit an amount equal to the maximum
remaining amount available to be drawn
thereunder;
(f)
if
thirty (30) or fewer days remain prior to the current expiry
date of such Qualified Letter of Credit, the Issuing Bank has
given a notice of non-extension referred to in the definition
of “Qualified Letter of Credit”, and the
Beneficiary
has not received a replacement Qualified Letter of Credit
under
Section
13.2, to draw upon such Qualified Letter of Credit an amount
equal to the maximum remaining amount available to be drawn
thereunder; and
(g)
if the
Lessee fails to cause the Applicant to provide a required
Qualifying Letter of Credit (as defined in the Master Letter
Agreement) by May
15, 2022 in accordance with Section 5(a) of the Master Letter
Agreement, and the
Beneficiary has not received a
Qualifying Letter of Credit, to draw upon such
Qualified Letter of Credit an amount equal to or less than
the amount of the Qualifying Letter of Credit that was required to
be provided pursuant to Section 5(a) of the Master Letter
Agreement;
provided
that an authorized representative or officer of the
Beneficiary delivers to the Issuing Bank a certificate as to
the occurrence of the condition allowing such
draw.
Section 13.4. Letter of Credit Proceeds
. Upon a draw on a Qualified Letter of Credit by the
Beneficiary, the proceeds shall be deposited and handled as set
forth in that certain Master Letter Agreement dated as of even date
herewith (the “ Master Letter Agreement
”).
Section 13.5. Lessor Payment Obligation
. Notwithstanding any provision in the Master Letter
Agreement to the contrary, the Lessor shall be obligated to pay to
the Applicant within ninety (90) days after the termination of this
Lease an amount equal to the portion of the LOC Account Excess
Amount (as defined in the Master Letter Agreement) received by the
Lessor, if any, that is not required to be used to satisfy the
Lessee’s unpaid obligations under this Lease. In
no event shall the amount of such payment exceed an amount equal to
the LOC Account Excess Amount actually received by the
Lessor. The Lessor hereby covenants and agrees that it
will continue to comply with its covenants and agreements set forth
in Section 5.01 and Section 5.02 of the Indenture, as in effect on
the date hereof, until such time as any amount due and payable to
the Applicant under this Section 13.5 or under Section 4(b)(vi)(B)
of the Master Letter Agreement is paid to the
Applicant.
Section 13.6. Quarterly Compliance Certificate
. Within thirty (30) days after the end of each calendar
quarter in each calendar year during the Base Term and all
applicable Renewal Terms, the Lessee shall deliver to the Lessor,
the Indenture Trustee and the Beneficiary a certificate executed by
Lessee confirming (a) each Obligor has waived all direct or
indirect rights of reimbursement, subrogation or other claims
against the Lessee with respect to any outstanding Qualified Letter
of Credit, (b) Lessee is not an Obligor with respect to any
such Qualified Letter of Credit, and (c) such Qualified Letter
of Credit is not collateralized with any asset in which the Lessee
has an ownership or other interest.”
(h)
Section 15.1 is hereby modified by deleting the words
“or Guarantor” appearing in line 29
thereof.
(i)
Section 16.1(a) is hereby modified by deleting the
terms of the section in their entirety and substituting in lieu
thereof the following:
Lessee shall fail to make any Termination Value Payment or
Stipulated Loss Value Payment within three (3) Business Days after
the same shall become due;
(j)
Section 16.1(b) is hereby modified by deleting the
terms of the section in their entirety and substituting in lieu
thereof the following:
Lessee shall fail to make any payment of Base Rent, Supplemental
Rent or any other payment required to be made under this Lease and
such failure shall continue for a period of ten (10) days after
written notice thereof from Lessor or the Servicer;
(k)
Section 16.1(c) is hereby modified by: (i) deleting the
words “any of Guarantor or” appearing in line 1
thereof; and (ii) deleting the words “Guarantor or Lessee (as
applicable)” appearing in line 7 thereof and substituting in
lieu thereof the word “Lessee”.
(l)
Section 16.1( e ) is hereby modified
by: (i) deleting the words “the Guarantor or”
appearing in line 1 thereof; and (ii) deleting the words
“Guarantor or” appearing in line 2
thereof.
(m)
Section 16.1(f) is hereby modified by deleting the words
“or Guarantor” appearing in lines 1, 2, 4, 5, 6, 7-8
(both occurrences), 9-10, 11, 13, 16, 17, 21, 22 and 24
thereof.
(n)
Section 16.1(g) is hereby modified by deleting the terms of
the section in their entirety.
(o)
Section 19.1(a) is hereby modified by: (i) deleting the
words “or Guarantor” appearing in line 32 thereof; and
(ii) deleting the words “or the Guaranty, as
applicable,” appearing in line 33 thereof.
(p)
Appendix A is hereby modified by:
i. &n
