Lease Agreement (2006)Full Document 

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LEASE AGREEMENT

 

Dated as of July 16, 2004

 

between

 

SUNTRUST EQUITY FUNDING, LLC, as Lessor,

 

and

 

TENNESSEE PROCESSING CENTER LLC, as Lessee

 


 



TABLE OF CONTENTS

 

          Page

ARTICLE I

  

DEFINITIONS

   1

ARTICLE II

  

LEASE OF LEASED PROPERTY

   1

Section 2.1

  

Acceptance and Lease of Property

   1

Section 2.2

  

Acceptance Procedure

   1

ARTICLE III

  

RENT

   2

Section 3.1

  

Basic Rent

   2

Section 3.2

  

Supplemental Rent

   2

Section 3.3

  

Method of Payment

   2

Section 3.4

  

Late Payment

   2

Section 3.5

  

Net Lease; No Setoff, Etc

   2

Section 3.6

  

Utility Charges

   4

Section 3.7

  

Certain Taxes

   4

ARTICLE IV

  

WAIVERS

   4

ARTICLE V

  

LIENS; EASEMENTS; PARTIAL CONVEYANCES

   5

ARTICLE VI

  

MAINTENANCE AND REPAIR; ALTERATIONS, MODIFICATIONS AND ADDITIONS

   6

Section 6.1

  

Maintenance and Repair; Compliance With Law

   6

Section 6.2

  

Alterations

   7

Section 6.3

  

Title to Alterations

   7

ARTICLE VII

  

USE

   7

ARTICLE VIII

  

INSURANCE

   7

ARTICLE IX

  

ASSIGNMENT AND SUBLEASING

   9

ARTICLE X

  

LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

   9

Section 10.1

  

Event of Loss

   9

Section 10.2

  

Event of Taking

   10

Section 10.3

  

Casualty

   10

Section 10.4

  

Condemnation

   11

Section 10.5

  

Verification of Restoration and Rebuilding

   11

Section 10.6

  

Application of Payments

   11

Section 10.7

  

Prosecution of Awards

   12

Section 10.8

  

Application of Certain Payments Not Relating to an Event of Taking

   12

Section 10.9

  

Other Dispositions

   12

Section 10.10

  

No Rent Abatement

   13

Section 10.11

  

Event During Construction Period

   13

 

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TABLE OF CONTENTS

(continued)

 

          Page

ARTICLE XI

  

INTEREST CONVEYED TO LESSEE

   13

ARTICLE XII

  

EVENTS OF DEFAULT

   14

ARTICLE XIII

  

ENFORCEMENT

   16

Section 13.1

  

Remedies

   16

Section 13.2

  

Remedies Cumulative; No Waiver; Consents

   18

Section 13.3

  

Limitation of Remedies

   19

Section 13.4

  

Purchase Upon an Event of Default

   19

ARTICLE XIV

  

SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL

   19

Section 14.1

  

Lessee’s Option to Purchase

   19

Section 14.2

  

Conveyance to Lessee

   19

Section 14.3

  

Acceleration of Purchase Obligation

   20

Section 14.4

  

Determination of Purchase Price

   20

Section 14.5

  

Purchase Procedure

   20

Section 14.6

  

Option to Remarket

   21

Section 14.7

  

Rejection of Sale

   22

Section 14.8

  

Return of Leased Property

   23

Section 14.9

  

Renewal

   23

ARTICLE XV

  

LESSEE’S EQUIPMENT

   24

ARTICLE XVI

  

RIGHT TO PERFORM FOR LESSEE

   24

ARTICLE XVII

  

MISCELLANEOUS

   25

Section 17.1

  

Reports

   25

Section 17.2

  

Binding Effect; Successors and Assigns; Survival

   25

Section 17.3

  

Quiet Enjoyment

   25

Section 17.4

  

Documentary Conventions

   25

Section 17.5

  

Liability of Lessor Limited

   25

Section 17.6

  

Estoppel Certificates

   26

Section 17.7

  

No Merger

   26

Section 17.8

  

Survival

   26

Section 17.9

  

Chattel Paper

   26

Section 17.10

  

Time of Essence

   27

Section 17.11

  

Recordation of Lease

   27

Section 17.12

  

Investment of Security Funds

   27

EXHIBIT A

  

Legal Description

    

 

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THIS LEASE AGREEMENT (as from time to time amended or supplemented, this “Lease”), dated as of July 16, 2004, is between SUNTRUST EQUITY FUNDING, LLC, a Delaware limited liability company (together with its successors and assigns hereunder (the “Lessor”), as Lessor, and TENNESSEE PROCESSING CENTER LLC , a Delaware limited liability company (the “Lessee”), as Lessee.

 

PRELIMINARY STATEMENT

 

A. Lessor will purchase the Land identified by the Construction Agent, and the Construction Agent will construct, or cause to be constructed, certain improvements on the Land, which as constructed shall be property of Lessor and will become part of the Leased Property subject to the terms of this Lease.

 

B. Lessor desires to lease to the Lessee, and the Lessee desires to lease from Lessor, the Leased Property.

 

In consideration of the mutual agreements herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, Lessor and Lessee hereby agree as follows:

 

ARTICLE I

DEFINITIONS

 

Terms used herein and not otherwise defined shall have the meanings assigned thereto in Appendix A to the Master Agreement, dated as of July 16, 2004 (as amended, supplemented or otherwise modified from time to time, the “Master Agreement”), among the Guarantor, the Lessee, Lessor, the financial institutions party thereto, as Lenders, SunTrust Bank, as Agent, The Bank of Tokyo-Mitsubishi, Ltd., as Syndication Agent, and BNP Paribas Leasing Corporation, as Documentation Agent, for all purposes hereof. The rules of interpretation set forth in Appendix A to the Master Agreement shall apply to this Lease.

 

ARTICLE II

LEASE OF LEASED PROPERTY

 

Section 2.1 Acceptance and Lease of Property. On the Closing Date, Lessor accepted delivery of the Land, and hereby leases to the Lessee hereunder for the Lease Term, Lessor’s interest in such Land, together with any Building which thereafter may be constructed thereon pursuant to the Construction Agency Agreement, and the Lessee hereby agrees, expressly for the direct benefit of Lessor, for the Lease Term, to lease from Lessor Lessor’s interest in the Leased Property, including any improvements constructed on the Land pursuant to the Construction Agency Agreement.

 

Section 2.2 Acceptance Procedure. Lessor hereby authorizes one or more employees of the Lessee, to be designated by the Lessee, as the authorized representative or representatives of Lessor to accept delivery on behalf of Lessor of the Leased Property. The Lessee hereby agrees that such acceptance of delivery by such authorized representative or representatives and the execution and delivery by the Lessee of this Lease shall, without further act, constitute the irrevocable acceptance by the Lessee of the Leased Property for all purposes of this Lease and


the other Operative Documents on the terms set forth therein and herein, and that the Leased Property, together with any Building or other improvements thereon or to be constructed thereon pursuant to the Construction Agency Agreement, shall be deemed to be included in the leasehold estate of this Lease and shall be subject to the terms and conditions of this Lease as of the Closing Date. The demise and lease of the Leased Property pursuant to this Section 2.2 shall include any additional right, title or interest in the Leased Property which may at any time be acquired by Lessor, the intent being that all right, title and interest of Lessor in and to the Leased Property shall at all times be demised and leased to the Lessee hereunder.

 

ARTICLE III

RENT

 

Section 3.1 Basic Rent. The Lessee shall pay to the Agent the Basic Rent for the Leased Property, in installments, payable in arrears on each Payment Date during the Lease Term, except that during the Construction Term, Basic Rent shall be paid by Advances pursuant to Section 2.3(c) of the Master Agreement.

 

Section 3.2 Supplemental Rent. The Lessee shall pay to the Agent, or to whomever shall be entitled thereto as expressly provided herein or in any other Operative Document, any and all Supplemental Rent on the date the same shall become due and payable and in the event of any failure on the part of the Lessee to pay any Supplemental Rent, the Agent shall have all rights, powers and remedies provided for herein or by law or in equity or otherwise in the case of nonpayment of Basic Rent. All Supplemental Rent to be paid pursuant to this Section 3.2 shall be payable in the type of funds and in the manner set forth in Section 3.3.

 

Section 3.3 Method of Payment. Basic Rent and Supplemental Rent (including amounts due under Article XIV hereof) shall be paid to the Agent and at such place as the Agent shall specify in writing to the Lessee. Each payment of Rent (including payments under Article XIV hereof) shall be made by the Lessee prior to 12:00 p.m. (noon) Atlanta, Georgia time at the place of payment in funds consisting of lawful currency of the United States of America which shall be immediately available on the scheduled date when such payment shall be due, unless such scheduled date shall not be a Business Day, in which case such payment shall be made on the next succeeding Business Day. The Agent agrees, at the Lessee’s request, to arrange for automated clearing house debits from the Lessee’s accounts for payments due hereunder.

 

Section 3.4 Late Payment. If any Basic Rent shall not be paid on the date when due, the Lessee shall pay to the Agent, as Supplemental Rent, interest (to the maximum extent permitted by law) on such overdue amount from and including the due date thereof to but excluding the Business Day of payment thereof at the Overdue Rate.

 

Section 3.5 Net Lease; No Setoff, Etc. This Lease is a net lease and notwithstanding any other provision of this Lease, the Lessee shall pay all Basic Rent and Supplemental Rent, and all costs, charges, assessments and other expenses foreseen or unforeseen, for which the Lessee or any Indemnitee is or shall become liable by reason of the Lessee’s or such Indemnitee’s estate, right, title or interest in the Leased Property, or that are connected with or arise out of the acquisition (except the initial costs of purchase by Lessor of its interest in the Leased Property, which costs shall be funded by the Funding Parties pursuant to the Master

 

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Agreement), construction (except Construction Costs, which costs shall be funded by the Funding Parties pursuant to the Master Agreement), installation, possession, use, occupancy, maintenance, ownership, leasing, repairs and rebuilding of, or addition to, the Leased Property or any portion thereof, and any other amounts payable hereunder and under the other Operative Documents without counterclaim, setoff, deduction or defense and without abatement, suspension, deferment, diminution or reduction, and the Lessee’s obligation to pay all such amounts throughout the Lease Term is absolute and unconditional. The obligations and liabilities of the Lessee hereunder shall in no way be released, discharged or otherwise affected for any reason, including without limitation: (a) any defect in the condition, merchantability, design, quality or fitness for use of the Leased Property or any part thereof, or the failure of the Leased Property to comply with all Applicable Law, including any inability to occupy or use the Leased Property by reason of such non-compliance; (b) any damage to, removal, abandonment, salvage, loss, contamination of or Release from, scrapping or destruction of or any requisition or taking of the Leased Property or any part thereof; (c) any restriction, prevention or curtailment of or interference with any use of the Leased Property or any part thereof including eviction; (d) any defect in title to or rights to the Leased Property or any Lien on such title or rights or on the Leased Property; (e) any change, waiver, extension, indulgence or other action or omission or breach in respect of any obligation or liability of or by the Agent or any Funding Party; (f) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceedings relating to the Lessee, any Funding Party, the Agent or any other Person, or any action taken with respect to this Lease by any trustee or receiver of the Lessee, any Funding Party, the Agent or any other Person, or by any court, in any such proceeding; (g) any claim that the Lessee has or might have against any Person, including without limitation, any vendor, manufacturer, contractor of or for the Leased Property or any part thereof, the Agent, any Governmental Authority, or any Funding Party; (h) any failure on the part of Lessor to perform or comply with any of the terms of this Lease, any other Operative Document or of any other agreement; (i) any invalidity or unenforceability or illegality or disaffirmance of this Lease against or by the Lessee or any provision hereof or any of the other Operative Documents or any provision of any thereof whether or not related to the Transactions; (j) the impossibility or illegality of performance by the Lessee, Lessor or both; (k) any action by any court, administrative agency or other Governmental Authority; (l) any restriction, prevention or curtailment of or interference with the Construction or any use of the Leased Property or any part thereof; or (m) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, whether or not the Lessee shall have notice or knowledge of any of the foregoing. Except as specifically set forth in Article XIV or Article X of this Lease, this Lease shall be noncancellable by the Lessee in any circumstance whatsoever and the Lessee, to the extent permitted by Applicable Law, waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this Lease, or to any diminution, abatement or reduction of Rent payable by the Lessee hereunder. Each payment of Rent made by the Lessee hereunder shall be final and the Lessee shall not seek or have any right to recover all or any part of such payment from the Agent, any Funding Party or any party to any agreements related thereto for any reason whatsoever. The Lessee assumes the sole responsibility for the condition, use, operation, maintenance, and management of the Leased Property and Lessor shall have no responsibility in respect thereof and shall have no liability for damage to the property of either the Lessee or any subtenant of the Lessee on any account or for any reason whatsoever, other than solely by reason of Lessor’s willful misconduct or gross negligence (except to the extent imputed to Lessor solely

 

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by virtue of its interest in the Leased Property). Notwithstanding the foregoing, nothing in this Section 3.5 shall abrogate any of the Lessee’s rights to pursue a claim for damages against any Funding Party arising from such Funding Party’s breach of its obligations under the Operative Documents.

 

Section 3.6 Utility Charges. The Lessee agrees to pay or cause to be paid as and when the same are due and payable all charges for gas, water, sewer, electricity, lights, heat, power, telephone or other communication service and all other utility services used, rendered or supplied to, upon or in connection with the Leased Property.

 

Section 3.7 Certain Taxes. Without limiting the generality of Section 3.5, the Lessee agrees to pay when due all real estate taxes, personal property taxes, gross sales taxes, including any sales or lease tax imposed upon the rental payments hereunder or under a sublease, occupational license taxes, water charges, sewer charges, assessments of any nature and all other governmental impositions and charges of every kind and nature whatsoever (the “tax(es)”), when the same shall be due and payable without penalty or interest; provided, however, that this Section shall not apply to any of the taxes covered by the exclusion described in Section 7.4(b) of the Master Agreement. It is the intention of the parties hereto that, insofar as the same may lawfully be done, Lessor shall be, except as specifically provided for herein, free from all expenses in any way related to the Leased Property and the use and occupancy thereof. Any tax relating to a fiscal period of any taxing authority falling partially within and partially outside the Lease Term, shall be apportioned and adjusted between Lessor and the Lessee. The Lessee covenants to furnish Lessor and the Agent, upon the Agent’s written request, within forty-five (45) days after the last date when any tax must be paid by the Lessee as provided in this Section 3.7, official receipts, to the extent available, of the appropriate taxing, authority or other proof satisfactory to Lessor, evidencing the payment thereof.

 

So long as no Event of Default has occurred and is continuing, the Lessee may defer payment of a tax so long as the validity or the amount thereof is contested by such Lessee with diligence and in good faith; provided, however, that the Lessee shall pay the tax in sufficient time to prevent delivery of a tax deed. Such contest shall be at the Lessee’s sole cost and expense. The Lessee covenants to indemnify and save harmless Lessor, the Agent and each Lender, which indemnification shall survive the termination of this Lease, from any actual and reasonable costs or expenses incurred by Lessor, the Agent or any Lender as a result of such contest; provided that neither the Agent nor any Lender shall be entitled to claim any indemnity against the Lessee pursuant to this sentence during the Construction Term.

 

ARTICLE IV

WAIVERS

 

During the Lease Term, Lessor’s interest in the Leased Property, including the Funded Equipment, the Building(s) (whether or not completed) and the Land, is demised and let by Lessor “AS IS” subject to (a) the rights of any parties in possession thereof, (b) the state of the title thereto existing at the time Lessor acquired its interest in the Leased Property, (c) any state of facts which an accurate survey or physical inspection might show (including the survey delivered on the Initial Funding Date), (d) all Applicable Law, and (e) any violations of Applicable Law which may exist upon or subsequent to the commencement of the Lease Term.

 

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