EXHIBIT 10.38
MASTER LEASE
THIS MASTER LEASE (this "Lease") is made as of December 4, 2001 (the
"Effective Date"), by and between DOUBLE 9 PROPERTY III LLC, a Delaware limited
liability company ("Lessor"), whose address is c/o U.S. Realty Advisors, LLC,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and DOE FAMILY II LLC, a
Massachusetts limited liability company ("Lessee"), whose address is 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
W I T N E S S E T H :
THAT, in consideration of the mutual covenants and agreements herein
contained, Lessor and Lessee hereby covenant and agree as follows:
1. CERTAIN DEFINED TERMS. The following terms shall have the
following meanings for all purposes of this Lease:
"Acknowledgement" means the Acknowledgement of Master Lease Assignment
and Subordination, Nondisturbance and Attornment Agreement among Lessor, Lessee,
Lender and Remainderman, as the same may be amended from time to time. A
duplicate original Acknowledgement will be executed and recorded in the
applicable real property records for each Property.
"Action" has the meaning set forth in Section 23.A(iv).
"ADA" has the meaning set forth in Section 16.C.
"Additional Rental" has the meaning set forth in Section 5.C.
"Adjustment Date" means the first day of the month following the month
in which the first anniversary of the Effective Date occurs, and every one year
anniversary thereafter during the Lease Term (including the extension periods if
Lessee exercises its option pursuant to Section 27).
"Affiliate" means any Person which directly or indirectly controls, is
under common control with, or is controlled by any other Person. For purposes of
this definition, "controls", "under common control with" and "controlled by"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise.
"Aggregate Assumed Base Annual Rental" means the aggregate amount of
Base Annual Rental required to be paid by Lessee during the Assumed Base Annual
Rental Period.
"Aggregate Fixed Charge Coverage Ratio" shall have the meaning set
forth in Section 8.A.
"Aggregate Rent Refund" means the positive difference, if any, between
the Aggregate Assumed Base Annual Rental and the CPI-Adjusted Rent.
"Applicable Regulations" means all applicable statutes, regulations,
rules, ordinances, codes, licenses, permits, orders and approvals of each
Governmental Authority having jurisdiction over Lessee and/or any of the
Properties, including, without limitation, all health, building, fire, safety
and other codes, ordinances and requirements and all applicable standards of the
National Board of Fire Underwriters and the ADA, in each case, as amended, and
any judicial or administrative interpretation thereof, including any judicial
order, consent, decree or judgment applicable to Lessee.
"Applicable Rent Reduction Percentage" means, with respect to any
Property, a fraction, the numerator of which shall be the Purchase Price for
such Property, and the denominator of which shall be the sum of the Purchase
Price for all of the Properties then subject to this Lease, including such
Property.
"Assumed Base Annual Rental Period" means the period commencing on
January 1, 2002 and ending on December 31, 2021.
"Base Annual Rental" means $1,457,274.36, subject to the increases
provided in Section 5.B.
"Base Monthly Rental" means an amount equal to 1/12 of the applicable
Base Annual Rental.
"Business Day" means a day on which banks located in Phoenix, Arizona
are not required or authorized to remain closed.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et
seq., as amended.
"CPI" means the Consumer Price Index which is designated for the
applicable month of determination as the United States City Average for All
Urban Consumers, All Items, Not Seasonally Adjusted, with a base period equaling
100 in 1982-1984, as published by the United States Department of Labor's Bureau
of Labor Statistics or any successor agency.
"CPI-Adjusted Rent" means the aggregate amount of Base Annual Rental
that would have been paid during the entire Assumed Base Annual Rental Period
had the Base Annual Rental on each CPI Adjustment Date been increased over the
Base Annual Rental immediately preceding such CPI Adjustment Date by two times
the applicable CPI Increase.
"CPI Adjustment Date" means the first day of the month following the
month in which the first anniversary of the Effective Date occurs, and every one
year anniversary thereafter during the Lease Term.
"CPI Increase" means the quotient (expressed as a percentage) of (a)
the positive difference, if any, between (i) the CPI for the month which is one
month prior to the month of the applicable CPI Adjustment Date and (ii) the CPI
for the month which is thirteen months prior to the month of such CPI Adjustment
Date (the "Base CPI"), and (b) the Base CPI. In the event the statistics are not
available or in the event that publication of the CPI is modified or
discontinued in its entirety, the CPI Increase shall be determined on the basis
of an index chosen by Lessor as a comparable and
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recognized index of the purchasing power of the United States consumer dollar
published by the United States Department of Labor or other governmental agency.
In the event that the CPI contemplated herein is not reported for the months
required for the calculation set forth above, the parties agree to utilize the
CPI reported for the month(s) nearest preceding the month(s) required for such
calculation.
"De Minimis Amounts" shall mean, with respect to any given level of
Hazardous Materials, that level or quantity of Hazardous Materials in any form
or combination of forms, the use, storage or release of which does not
constitute a violation of, or require regulation or remediation under, any
Environmental Laws and is customarily employed in the ordinary course of, or
associated with, similar businesses located in the states in which the
Properties are located.
"Default Rate" means 18% per annum or the highest rate permitted by
law, whichever is less.
"Disclosures" has the meaning set forth in Section 8.C.
"Effective Date" has the meaning set forth in the Preamble.
"Environmental Insurer" means American International Specialty Lines
Insurance Company or such other insurer providing Environmental Policies
reasonably acceptable to Lessor and Lessee.
"Environmental Laws" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law, relating to Hazardous Materials and/or the protection of human
health or the environment, by reason of a Release or a Threatened Release of
Hazardous Materials or relating to liability for or costs of Remediation or
prevention of Releases. "Environmental Laws" includes, but is not limited to,
the following statutes, as amended, any successor thereto, and any regulations,
rulings, orders or decrees promulgated pursuant thereto, and any state or local
statutes, ordinances, rules, regulations and the like addressing similar issues:
the Comprehensive Environmental Response, Compensation and Liability Act; the
Emergency Planning and Community Right-to-Know Act; the Hazardous Materials
Transportation Act; the Resource Conservation and Recovery Act (including but
not limited to Subtitle I relating to underground storage tanks); the Solid
Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances
Control Act; the Safe Drinking Water Act; the Occupational Safety and Health
Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide
and Rodenticide Act; the Endangered Species Act; the National Environmental
Policy Act; the River and Harbors Appropriation Act; New Hampshire Revised
Statutes Annotated Sections 147-A and 147-B (with respect to any Properties
located in the State of New Hampshire) and Rhode Island General Laws Section
23-19.1-1 et seq. (with respect to any Properties located in the State of Rhode
Island). "Environmental Laws" also includes, but is not limited to, any present
and future federal, state and local laws, statutes, ordinances, rules,
regulations and the like, as well as common law: conditioning transfer of
property upon a negative declaration or other approval of a Governmental
Authority of the environmental condition of the property; requiring notification
or disclosure of Releases or other environmental condition of any of the
Properties to any Governmental Authority or other person or entity, whether or
not in connection with transfer of
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title to or interest in property; imposing conditions or requirements relating
to Hazardous Materials in connection with permits or other authorization for
lawful activity; relating to nuisance, trespass or other causes of action
related to Hazardous Materials; and relating to wrongful death, personal injury,
or property or other damage in connection with the physical condition or use of
any of the Properties by reason of the presence of Hazardous Materials in, on,
under or above any of the Properties.
"Environmental Liens" has the meaning set forth in Section 16.D(ix).
"Environmental Policies" means the environmental insurance policy or
policies, as applicable, issued by Environmental Insurer to Lessor and Lessee
with respect to the Properties, which Environmental Policies shall be in form
and substance satisfactory to each of Lessor and Lessee in its sole discretion.
"Event of Default" has the meaning set forth in Section 23.
"Extended Term" means the period subsequent to the expiration of the
Primary Term during which this Lease is actually in effect.
"FCCR Period" means the twelve month period of time immediately
preceding the date on which Lessee gives written notice to Lessor that Lessee is
proposing to substitute a Substitute Property as permitted by Section 57.A.
"Fixed Charge Coverage Ratio" has the meaning set forth in Section
57.B(i)(2).
"GAAP" means generally accepted accounting principles consistently
applied.
"Governmental Authority" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the states in which the
Properties are located or any political subdivision thereof.
"Guarantors" means, collectively, 99 Boston, Inc., a Massachusetts
corporation, and 99 West, Inc., a Massachusetts corporation.
"Guaranty" means that certain unconditional guaranty of payment and
performance dated as of the date of this Lease executed by Guarantors with
respect to the obligations of Lessee under this Lease, as the same may be
amended from time to time.
"Hazardous Materials" means (i) any toxic substance or hazardous waste,
substance, solid waste, or related material, or any pollutant or contaminant;
(ii) radon gas, asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contains
dielectric fluid containing levels of polychlorinated biphenyls in excess of
federal, state or local safety guidelines, whichever are more stringent, or any
petroleum product; (iii) any substance, gas, material or chemical which is or
may be defined as or included in the definition of "hazardous substances,"
"toxic substances," "hazardous materials," "hazardous wastes," "regulated
substances" or words of similar import under any Environmental Laws; and (iv)
any other chemical, material, gas or substance the exposure to or release of
which is or may be prohibited, limited or regulated by any Governmental
Authority that asserts or may
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assert jurisdiction over any of the Properties or the operations or activity at
any of the Properties, or any chemical, material, gas or substance that does or
may pose a hazard to the health and/or safety of the occupants of any of the
Properties or the owners and/or occupants of property adjacent to or surrounding
any of the Properties.
"Indemnified Parties" means Lessor, Remainderman, and Lender and their
directors, officers, shareholders, trustees, beneficial owners, partners,
members, and any directors, officers, shareholders, trustees, beneficial owners,
partners, members of any beneficial owners, partners or members of Lessor,
Remainderman or Lender, and all employees, agents, servants, representatives,
contractors, subcontractors, affiliates, subsidiaries, participants, successors
and assigns of any of the foregoing, including, but not limited to, any
successors by merger, consolidation or acquisition of all or a substantial
portion of the assets and business of Lessor, Remainderman or Lender, as
applicable.
"Lease Term" shall have the meaning described in Section 4.
"Lease Year" means the 12-month period commencing on the first day of
the calendar year or any other 12-month period as may be approved in writing by
Lessor after the commencement of the Lease Term and each successive 12-month
period thereafter.
"Lender" means GE Capital Franchise Finance Corporation, a Delaware
corporation, its successors and assigns, any successor lender in connection with
any loan secured by Lessor's interest in any of the Properties, and any servicer
of any loan secured by Lessor's interest in any of the Properties.
"Lessee Entities" means, collectively, Lessee, Guarantors and all
Affiliates of Lessee and/or any of the Guarantors.
"Lessor Entities" means, collectively, Double 9 Property I LLC, Double
9 Property II LLC, Double 9 Property III LLC, Double 9 Property IV LLC, 99
Remainder I LLC, 99 Remainder II LLC, 99 Remainder III LLC and 99 Remainder IV
LLC, each a Delaware limited liability company.
"Loan Agreement" means the Loan Agreement or Loan Agreements in effect
between Lessor and Lender with respect to the Properties, as such agreements may
be amended from time to time and any and all replacements or substitutions
thereof.
"Loan Documents" means, collectively, the Loan Agreement, the Notes,
the Mortgages and all other documents, instruments and agreements executed in
connection therewith or contemplated thereby, all as amended and supplemented
and any and all replacements or substitutions thereof.
"Loan Pool" means:
(i) in the context of a Securitization, any pool or group
of loans that are a part of such Securitization;
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(ii) in the context of a Transfer, all loans which are
sold, transferred or assigned to the same transferee; and
(iii) in the context of a Participation, all loans as to
which participating interests are granted to the same participant.
"Losses" means any and all claims, suits, liabilities (including,
without limitation, strict liabilities), actions, proceedings, obligations,
debts, damages, losses, costs, expenses, diminutions in value, fines, penalties,
charges, fees, expenses, judgments, awards, amounts paid in settlement and
damages of whatever kind or nature (including, without limitation, attorneys'
fees, court costs and other costs of defense).
"Maturity Date" means January 1, 2022.
"Memorandum" means the memorandum or notice of master lease between
Lessor and Lessee with respect to the Properties, as the same may be amended
from time to time. A duplicate original Memorandum will be executed and recorded
in the applicable real property records for each Property. Each Memorandum will
contain exhibits with the addresses and store identification numbers for all of
the Properties and the legal description for the applicable Property.
"Mortgages" means, collectively, the mortgages, deeds of trust or deeds
to secure debt, assignments of rents and leases, security agreements and fixture
filings executed by Lessor for the benefit of Lender with respect to the
Properties, as such instruments may be amended, restated and/or supplemented
from time to time and any and all replacements or substitutions thereof.
"Net Income" means, for any period, the consolidated net income (or
loss) of the Lessee Entities determined in accordance with GAAP, but excluding:
(a) the income of any Person (other than any of the Lessee Entities) in which
any of the Lessee Entities has an ownership interest, unless received by any of
the Lessee Entities in a cash distribution; (b) any after-tax gains or losses
attributable to an asset disposition; and (c) to the extent not included in
clauses (a) and (b) immediately above, any after-tax extraordinary, non-cash or
non-recurring gains or losses.
"Notes" means, collectively, the promissory notes executed by Lessor
and payable to Lender with respect to the Properties, as such notes may be
amended, restated and/or substituted from time to time.
"Other Agreements" means, collectively, all agreements and instruments
now or hereafter entered into between, among or by (1) any of the Lessee
Entities, and, or for the benefit of, (2) any of the Lessor Entities, including,
without limitation, the Related Leases; provided, however, the term Other
Agreements shall not include this Lease and the other Sale-Leaseback Documents.
"Participation" means the granting of any participations in any
document evidencing loan obligations or any or all servicing rights with respect
thereto.
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"Permitted Facility" means a restaurant operated under the brand name
"Ninety Nine Restaurant and Pub".
"Permitted Sublessee" means 99 Boston, Inc., a Massachusetts
corporation, or 99 West, Inc., a Massachusetts corporation.
"Person" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental Authority or
any other form of entity.
"Personalty" means all machinery, appliances, furniture, equipment,
trade fixtures and other personal property from time to time situated on or used
in connection with the Properties (including, without limitation, portable
stainless steel merchandise racks); provided, however, the term "Personalty"
shall not include the HVAC, walk-in coolers, walk-in freezers, supply fans,
exhaust fans, air ducts, hoods, vents, built-in sinks, built-in countertops,
plumbing and electrical fixtures, built-in merchandise shelving, sign poles and
lighting poles, all of which items are intended to be fixtures as such term is
used within the definition of "Properties".
"Prepayment Charges" means, for purposes of this Lease, an amount equal
to any prepayment premium or charge, yield maintenance payment, or other cost or
expense imposed on Lessor by the applicable Lender in connection with the
payment of the applicable Note(s) or promissory note(s) prior to the Maturity
Date.
"Primary Term" means the period commencing on the Effective Date and
expiring on January 31, 2022.
"Properties" means, collectively, the parcels of real estate described
by address, FFC Number and Unit Number in Exhibit A attached hereto, as the same
may be modified from time to time to reflect removed, added and substituted
Properties, and legally described in Exhibit A-1 attached hereto, as the same
may be modified from time to time to reflect removed, added and substituted
Properties, all rights, privileges and appurtenances associated therewith, and
all buildings, structures, fixtures and other improvements now or hereafter
located on such real estate (excluding Personalty).
"Property" means any one of the Properties.
"Purchase Price" means, with respect to any Property, the amount of the
purchase price corresponding to such Property as set forth on Exhibit A to the
Sale-Leaseback Agreement.
"Questionnaires" means the environmental questionnaires completed with
respect to each of the Properties and submitted to Environmental Insurer in
connection with the issuance of the Environmental Policies.
"Rejectable Offer" has the meaning set forth in Section 21.B.
"Rejectable Purchase Offer" has the meaning set forth in Section 58.A.
"Rejectable Substitution Offer" has the meaning set forth in Section
57.A.
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"Related Leases" means those leases between any of the Lessor Entities,
as lessor, and Lessee, as lessee, relating to the Related Properties.
"Related Properties" means any properties (other than the Properties)
which are the subject of a lease between any of the Lessor Entities, as lessor,
and Lessee, as lessee.
"Release" means any release, deposit, discharge, emission, leaking,
spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping,
dumping, disposing or other movement of Hazardous Materials.
"Remainderman" means 99 Remainder I LLC, a Delaware limited liability
company, which owns a remainder interest in the parcels of real estate described
by address, Lessor Number and Unit Number in Exhibit A attached hereto and
legally described in Exhibit A-1 attached hereto and all rights, privileges and
appurtenances associated therewith, together with its successors and assigns.
"Remediation" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Materials, any actions to prevent, cure or mitigate any
Release, any action to comply with any Environmental Laws or with any permits
issued pursuant thereto, any inspection, investigation, study, monitoring,
assessment, audit, sampling and testing, laboratory or other analysis, or any
evaluation relating to any Hazardous Materials.
"Sale-Leaseback Agreement" means the Sale-Leaseback Agreement or
Sale-Leaseback Agreements among Lessor, Lessee, Xxxxxxx X. Xxx, Xx., Xxxx X. Xxx
and Xxxxxxx X. Xxx, Trustees of the Doe Family Trust II u/d/t dated September
16, 1992, and Xxxxxxx X. Xxx, Trustee of the Doe Family Trust u/d/t dated April
30, 1980 with respect to the Properties, as the same may be amended from time to
time.
"Sale-Leaseback Documents" means the Sale-Leaseback Agreement, this
Lease, the Memorandum, the Guaranty, the Acknowledgement and all other documents
executed in connection therewith or contemplated thereby, all as amended and
supplemented and any and all replacements or substitutions thereof.
"Securitization" means one or more sales, dispositions, transfers or
assignments by Lender or any Affiliate of Lender to a special purpose
corporation, trust or other entity identified by Lender or any Affiliate of
Lender of notes evidencing obligations to repay secured or unsecured loans owned
by Lender or any Affiliate of Lender (and, to the extent applicable, the
subsequent sale, transfer or assignment of such notes to another special purpose
corporation, trust or other entity identified by Lender or any Affiliate of
Lender), and the issuance of bonds, certificates, notes or other instruments
evidencing interests in pools of such loans, whether in connection with a
permanent asset securitization or a sale of loans in anticipation of a permanent
asset securitization. Each Securitization shall be undertaken in accordance with
all requirements which may be imposed by the investors or the rating agencies
involved in each such sale, disposition, transfer or assignment or which may be
imposed by applicable securities, tax or other laws or regulations.
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"Space Leases" means the existing leases affecting certain of the
Properties, which leases are identified on Schedule I to the Sale-Leaseback
Agreement.
"Space Lessees" means the tenants under the Space Leases.
"Subject Transfer" means a change in control of Lessee or any of the
Guarantors such that 50.1% of the ownership interests in Lessee or any of the
Guarantors becomes held, directly or indirectly, by Persons who do not hold
ownership interests in Lessee or any of the Guarantors as of the Effective Date.
"Substitute Property" means one or more parcels of real estate
substituted for any of the Properties in accordance with the requirements of
Section 57, together with all rights, privileges and appurtenances associated
therewith, and all buildings, structures, fixtures and other improvements
located thereon. For purposes of clarity, where two or more parcels of real
property comprise a Substitute Property, such parcels shall be aggregated and
deemed to constitute the Substitute Property for all purposes of this Lease.
"Threatened Release" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the soil, surface waters,
groundwaters, land, stream sediments, surface or subsurface strata, ambient air
or any other environmental medium comprising or surrounding any of the
Properties which may result from such Release.
"Title Company" means Lawyers Title Insurance Corporation, or such
other nationally recognized title insurance company reasonably acceptable to
Lessor.
"Transfer" means any sale, transfer or assignment of any document
evidencing loan obligations, or any or all servicing rights with respect
thereto.
2. DEMISE OF PROPERTIES. In consideration of the rentals and
other sums 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 Properties. The Properties are leased to
Lessee "AS IS" and "WHERE IS" without representation or warranty by Lessor and
subject to the rights of parties in possession, to the existing state of title,
any state of facts which an accurate survey or physical inspection might reveal,
and all Applicable Regulations now or hereafter in effect. Lessee has examined
each of the Properties and title to each of the Properties and has found all of
the same satisfactory for all of Lessee's purposes.
3. CHARACTERIZATION OF LEASE. A. Lessor and Lessee intend that:
(i) this Lease constitutes a single master lease of all,
but not less than all, of the Properties and that Lessor and Lessee
have executed and delivered this Lease with the understanding that this
Lease constitutes a unitary, unseverable instrument pertaining to all,
but not less than all, of the Properties, and that neither this Lease
nor the duties, obligations or rights of Lessee may be allocated or
otherwise divided among the Properties by Lessee;
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(ii) this Lease is a "true lease" and not a financing
lease, capital lease, mortgage, equitable mortgage, deed of trust,
trust agreement, security agreement or other financing or trust
arrangement, and the economic realities of this Lease are those of a
true lease; and
(iii) the business relationship created by this Lease and
any related documents is solely that of a long-term commercial lease
between landlord and tenant and has been entered into by both parties
in reliance upon the economic and legal bargains contained herein.
X. Xxxxxx and Lessee acknowledge and agree that the Lease Term,
including any term extensions provided for in this Lease, is less than the
remaining economic life of each of the Properties.
C. Lessee waives any claim or defense based upon the
characterization of this Lease as anything other than a true lease and
irrevocably waives any claim or defense which asserts that this Lease is
anything other than a true lease. Lessee covenants and agrees that it will not
assert that this Lease is anything but a true lease. Lessee stipulates and
agrees not to challenge the validity, enforceability or characterization of the
lease of the Properties as a true lease and further stipulates and agrees that
nothing contained in this Lease creates or is intended to create a joint
venture, partnership (either de jure or de facto), equitable mortgage, trust,
financing device or arrangement, security interest or the like. Lessee shall
support the intent of the parties that the lease of the Properties pursuant to
this Lease is a true lease and does not create a joint venture, partnership
(either de jure or de facto), equitable mortgage, trust, financing device or
arrangement, security interest or the like, if, and to the extent that, any
challenge occurs.
D. Lessee waives any claim or defense based upon the
characterization of this Lease as anything other than a master lease of all of
the Properties and irrevocably waives any claim or defense which asserts that
this Lease is anything other than a master lease. Lessee covenants and agrees
that it will not assert that this Lease is anything but a unitary, unseverable
instrument pertaining to the lease of all, but not less than all, of the
Properties. Lessee stipulates and agrees not to challenge the validity,
enforceability or characterization of the lease of the Properties as a unitary,
unseverable instrument pertaining to the lease of all, but not less than all, of
the Properties. Lessee shall support the intent of the parties that this Lease
is a unitary, unseverable instrument pertaining to the lease of all, but not
less than all, of the Properties, if, and to the extent that, any challenge
occurs.
E. Lessee and Lessor each stipulate that (i) the Base Annual
Rental is the fair market value for the use of the Properties and was agreed to
by Lessor and Lessee on that basis, and (ii) the execution, delivery and
performance by Lessee of this Lease does not constitute a transfer of all or any
part of the Properties, except with respect to the creation of the leasehold
estate and other rights hereunder.
F. The expressions of intent, the waivers, the representations
and warranties, the covenants, the agreements and the stipulations set forth in
this Section are a material inducement to Lessor entering into this Lease.
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4. LEASE TERM. The Lease Term shall commence as of the Effective
Date and shall expire on January 31, 2022, unless terminated sooner as provided
in this Lease and as may be extended for five additional successive periods of
five years each as set forth in Section 27 below. The time period during which
this Lease shall actually be in effect is referred to herein as the "Lease
Term."
5. RENTAL AND OTHER PAYMENTS. A. If the Effective Date is a date
other than the first day of the month, Lessee shall pay Lessor on the Effective
Date the Base Monthly Rental prorated on the basis of the ratio that the number
of days from the Effective Date through the last day in the month containing the
Effective Date bears to the number of days in such month. Thereafter, on or
before the first day of each succeeding calendar month, Lessee shall pay Lessor
in advance the Base Monthly Rental.
B. Commencing on the first Adjustment Date and on each Adjustment
Date thereafter, the Base Annual Rental shall increase by an amount equal to the
product of the then-current Base Annual Rental multiplied by 1.00%. The
increased Base Annual Rental shall constitute the Base Annual Rental due and
payable until the next Adjustment Date.
C. All sums of money required to be paid by Lessee under this
Lease which are not specifically referred to as rent shall be considered
additional rent ("Additional Rental") although not specifically designated as
such. Lessor shall have the same remedies for nonpayment of Additional Rental as
those provided herein for the nonpayment of Base Annual Rental.
D. (i) Lessor hereby agrees that, to the extent that the
Aggregate Assumed Base Annual Rental exceeds the CPI-Adjusted Rent, Lessor shall
be required to pay Lessee the Aggregate Rent Refund in accordance with the
provisions of this Section 5.D. In no event shall Base Annual Rental be deemed
reduced as of any Adjustment Date from the Base Annual Rental which would have
been payable during the year immediately preceding such Adjustment Date. In
addition, if the Aggregate Assumed Base Annual Rental is less than or equal to
the aggregate CPI-Adjusted Rent, then no additional amounts shall be payable by
Lessee to Lessor and the payments of Base Annual Rental otherwise contemplated
by this Lease for the Primary Term shall become the final amounts payable as
Base Annual Rental for the Primary Term. Anything contained herein to the
contrary notwithstanding, in no event shall Lessor be required to pay the
Aggregate Rent Refund in the event of any termination of this Lease resulting
from the occurrence of an Event of Default or a rejection of this Lease in a
bankruptcy case involving Lessee.
(ii) Within thirty (30) days after the end of the Primary Term
(other than a termination resulting from the occurrence of an Event of Default
or a rejection of this Lease in a bankruptcy case involving Lessee), Lessor
shall (x) provide Lessee with a statement setting forth Lessor's calculation of
the amount of the Aggregate Rent Refund and each CPI Increase used in
calculating the Aggregate Rent Refund and (y) pay the Aggregate Rent Refund to
Lessee; provided, however, the obligation of Lessor to pay the Aggregate Rent
Refund to Lessee shall not excuse or reduce Lessee's obligation to pay any Base
Annual Rental or Additional Rental payable in respect of the Primary Term or,
except as provided in subsection (iii) below, the Extended Term, or any payment
due in respect of any termination of this Lease or as a result of the rejection
of this Lease in a bankruptcy case involving Lessee, or any other amount
(including, without limitation, indemnification payments or damages) payable
hereunder during
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or with respect to the Primary Term or the Extended Term, and Lessee shall not
have any right to set-off the Aggregate Rent Refund or any part thereof against
its obligation to pay any such Base Annual Rental, Additional Rental, any
payment due in respect of any termination of this Lease or as a result of the
rejection of this Lease in a bankruptcy case involving Lessee, or any such other
amount, except as provided in subsection (iii) below. If this Lease is
terminated as a result of an Event of Default or if this Lease is rejected in a
bankruptcy case involving Lessee, or if an Event of Default shall have occurred
and be continuing at the expiration of the Primary Term, Lessor may, but shall
not be required to, in exercising its rights hereunder, use, apply or retain the
whole or any part of the Aggregate Rent Refund for the payment of any rent or
other sum (including damages) to which Lessor may be entitled by reason of such
Event of Default or rejection.
(iii) In the event Lessee exercises its option to extend this Lease
as set forth in Section 27 below, Lessor may elect to apply the Aggregate Rent
Refund, if any, as a credit against the Base Annual Rental first accruing for
the Extended Term, until the balance of the Aggregate Rent Refund shall be
reduced to zero. Lessor shall evidence its election by giving notice thereof to
Lessee no later than the due date of the first installment of rent due in the
first Extended Term; provided, however, if Lessor fails to deliver such notice,
Lessor shall be deemed to have elected to so credit the Aggregate Rent Refund.
(iv) Notwithstanding anything contained herein to the contrary, the
obligation created by this Section 5.D shall be subordinate in all respects to
the loans secured by the Mortgages. Without limiting the generality of the
preceding sentence, in the event that Lender succeeds to the interest of Lessor
in this Lease whether by a foreclosure of the Mortgages or the delivery to
Lender of deeds-in-lieu of foreclosure, the preceding subsections of this
Section 5.D shall be of no force or effect, Lender shall have no obligation to
pay Lessee the Aggregate Rent Refund, and Lessee shall have no right to receive
a credit for the Aggregate Rent Refund against the Base Annual Rental due for
the Extended Term.
6. 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 of the Effective Date as follows:
A. Organization, Authority and Status of Lessor. (i)
Lessor has been duly organized and is validly existing and in good
standing under the laws of the State of Delaware. All necessary limited
liability company action has been taken to authorize the execution,
delivery and performance by Lessor of this Lease and the other
documents, instruments and agreements provided for herein.
(ii) 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.
7. 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
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Lessor has relied, and will continue to rely, upon such representations and
warranties. Lessee represents and warrants to Lessor as of the Effective Date as
follows:
A. Organization, Authority and Status of Lessee. (i)
Lessee has been duly organized, is validly existing and in good
standing under the laws of the State of Massachusetts and is qualified
to do business in any jurisdiction where such qualification is
required. 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 corporation", "foreign
partnership", "foreign trust", "foreign limited liability company" or
"foreign estate", as those terms are defined in the Internal Revenue
Code and the regulations promulgated thereunder. Lessee's United States
tax identification number is correctly set forth on the signature page
of this Lease.
(ii) The person who has executed this Lease on behalf of
Lessee is duly authorized to do so.
B. Enforceability. This Lease constitutes the legal,
valid and binding obligation of Lessee, enforceable against Lessee in
accordance with its terms.
C. Litigation. There are no suits, actions, proceedings
or investigations pending, or, to the best of Lessee's knowledge after
reasonable inquiry, threatened against or involving Lessee, any
Guarantor or any of the Properties 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, any Guarantor or any of the Properties.
D. Absence of Breaches or Defaults. To the best of
Lessee's knowledge after reasonable inquiry, neither Lessee nor any
Guarantor is in default under any document, instrument or agreement to
which Lessee or any Guarantor is a party or by which Lessee, any
Guarantor, any of the Properties or any of Lessee's or any Guarantor's
property is subject or bound. To the best of Lessee's knowledge after
reasonable inquiry, 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 or any Guarantor
is a party or by which Lessee, any Guarantor, any of the Properties or
any of Lessee's or any Guarantor'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
violate any applicable law, statute, regulation, rule, ordinance, code,
rule or order.
E. Liabilities of Lessor. Lessee is not liable for any
indebtedness for money borrowed by Lessor and has not guaranteed any of
the debts or obligations of Lessor.
8. COVENANTS. Lessee covenants to Lessor for so long as this
Lease is in effect as follows:
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A. Aggregate Fixed Charge Coverage Ratio. Lessee shall
maintain or cause to be maintained an Aggregate Fixed Charge Coverage
Ratio calculated for all of the Properties of at least 1.50:1,
determined as of the last day of each fiscal year of Lessee. For
purposes of this Lease, the term "Aggregate Fixed Charge Coverage
Ratio" shall mean with respect to the twelve month period of time
immediately preceding the date of determination, the ratio calculated
for such period of time, each as determined in accordance with GAAP, of
(a) the sum of FCCR Income, Depreciation and Amortization, Interest
Expense and Operating Lease Expense, less a corporate overhead
allocation in an amount equal to 5.00% of Gross Sales, to (b) the sum
of the Operating Lease Expense and the Equipment Payment Amount.
For purposes of this Section 8.A, the following terms shall be defined
as set forth below:
"Capital Lease" shall mean any lease of any property
(whether real, personal or mixed) by Lessee or any Permitted
Sublessee with respect to one or more of the Properties which
lease would, in conformity with GAAP, be required to be
accounted for as a capital lease on the balance sheet of
Lessee or any Permitted Sublessee. The term "Capital Lease"
shall not include any operating lease or this Lease.
"Debt" shall mean as directly related to all of the
Properties and the period of determination (i) indebtedness of
Lessee or any Permitted Sublessee for borrowed money, (ii)
obligations of Lessee or any Permitted Sublessee evidenced by
bonds, indentures, notes or similar instruments, (iii)
obligations of Lessee or any Permitted Sublessee to pay the
deferred purchase price of property or services, (iv)
obligations of Lessee or any Permitted Sublessee under leases
which should be, in accordance with GAAP, recorded as Capital
Leases, and (v) obligations of Lessee or any Permitted
Sublessee under direct or indirect guarantees in respect of,
and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) through (iv) above. The
term "Debt" shall not include (x) Lessor's debt with respect
to the Properties or otherwise or (y) any corporate debt of
Lessee or any Permitted Sublessee which is not secured by any
of the Properties or any Personalty.
"Depreciation and Amortization" shall mean with
respect to all of the Properties the depreciation and
amortization accruing during any period of determination with
respect to Lessee or any Permitted Sublessee as determined in
accordance with GAAP. The term "Depreciation and Amortization"
shall not include Lessor's depreciation and amortization with
respect to the Properties or otherwise.
"Equipment Payment Amount" shall mean for any period
of determination the greater of:
(i) $54,000 multiplied by the number of
Properties, and
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(ii) the sum of all amounts payable during
such period of determination under all (x) leases
entered into by Lessee or any Permitted Sublessee for
equipment located at one or more of the Properties
(other than leases for which amounts required to be
paid would constitute an Operating Lease Expense) and
(y) all loans made to Lessee or any Permitted
Sublessee secured by Lessee's or any Permitted
Sublessee's interest in the equipment located at one
or more of the Properties.
"FCCR Income" shall mean with respect to the period
of determination, the aggregate net income or net loss arising
from all business operated at the Properties by Lessee or any
Permitted Sublessee, as applicable. In determining the amount
of FCCR Income, (i) adjustments shall be made for nonrecurring
gains and losses allocable to the period of determination,
(ii) deductions shall be made for, among other things,
Depreciation and Amortization, Interest Expense and Operating
Lease Expense allocable to the period of determination, and
(iii) no deductions shall be made for (x) income taxes or
charges equivalent to income taxes allocable to the period of
determination, as determined in accordance with GAAP, or (y)
corporate overhead expense allocable to the period of
determination.
"Gross Sales" means the aggregate sales or other
income arising from all business operated at the Properties by
Lessee or any Permitted Sublessee, as applicable, during the
period of determination, less sales tax paid by Lessee or any
Permitted Sublessee, as applicable, in connection with the
business conducted at each of the Properties during such
period.
"Interest Expense" shall mean for any period of
determination, the sum of all interest accrued or which should
be accrued in respect of all Debt of Lessee or any Permitted
Sublessee allocable to one or more of the Properties and all
business operations thereon during such period (including
interest attributable to Capital Leases), as determined in
accordance with GAAP.
"Operating Lease Expense" shall mean the expenses
incurred by Lessee or any Permitted Sublessee under any
operating leases with respect to one or more of the Properties
and the business operations thereon (including this Lease, but
excluding any permitted subleases and any leases for which
amounts required to be paid would constitute an Equipment
Payment Amount) during the period of determination, as
determined in accordance with GAAP.
B. Nonconsolidation Covenants. (i) Lessee will not
assume liability for any indebtedness for money borrowed by Lessor and
does not, and will not, guarantee any of the debts or obligations of
Lessor. Lessee will not hold itself out as being liable for any
obligations or indebtedness of Lessor.
(ii) Lessee shall not, and shall use its best efforts to
cause its Affiliates not to, hold Lessor out to the public or to any
individual creditors as being a unified entity with assets and
liabilities in common with Lessee.
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(iii) Lessee shall conduct its business so as not to
mislead others as to the separate identity of Lessor, and particularly
will avoid the appearance of conducting business on behalf of Lessor.
Without limiting the generality of the foregoing, no oral and written
communications of Lessee, including, without limitation, letters,
invoices, purchase orders, contracts, statements and loan applications,
will be made in the name of Lessor which to the extent that to do
otherwise would materially bear upon the maintenance of Lessor's
separate identity.
(iv) Lessee will not act in Lessor's name.
(v) Where necessary and appropriate, Lessee shall
disclose the independent business status of Lessor to creditors of
Lessee, if any.
(vi) The resolutions, agreements and other instruments of
Lessee, if any, underlying the transactions described in this Lease
will be maintained by Lessee.
(vii) All transactions between Lessee and Lessor will be no
less fair to each party than they could obtain on an arm's-length
basis.
(viii) The books, records and accounts of Lessee shall at
all times be maintained in a manner permitting the assets and
liabilities of Lessor to be easily separated and readily ascertained
from those of Lessee.
(ix) Lessee will not direct, or otherwise control, the
ongoing business decisions of Lessor.
(x) Lessee will not file or cause to be filed a voluntary
or involuntary petition in bankruptcy on behalf of or against Lessor.
C. Transfer, Participation and Securitization Covenants.
(i) Lessee agrees to cooperate in good faith with Lessor and Lender in
connection with any Transfer, Participation and/or Securitization of
any of the Notes, Mortgages and/or any of the Loan Documents, or any or
all servicing rights with respect thereto, including, without
limitation, (x) providing such documents, financial and other data, and
other information and materials (the "Disclosures") which would
typically be required with respect to Lessee or Guarantors by a
purchaser, transferee, assignee, servicer, participant, investor or
rating agency involved with respect to such Transfer, Participation
and/or Securitization, as applicable; provided, however, Lessee and
Guarantors shall not be required to make Disclosures of any
confidential information or any information which has not previously
been made public unless required by applicable federal or state
securities laws; and (y) amending the terms of this Lease to the extent
necessary so as to satisfy the requirements of purchasers, transferees,
assignees, servicers, participants, investors or selected rating
agencies involved in any such Transfer, Participation or
Securitization, so long as such amendments would not have a material
adverse effect upon Lessee, Guarantors or the transactions contemplated
by this Lease.
(ii) Lessee consents to Lessor and Lender providing the
Disclosures, as well as any other information which Lessor and Lender
may now have or hereafter acquire with
16
respect to the Properties or the financial condition of Lessee or
Guarantors to each purchaser, transferee, assignee, servicer,
participant, investor or rating agency involved with respect to such
Transfer, Participation and/or Securitization, as applicable. Lessee
shall pay its own attorney fees and other out-of-pocket expenses
incurred in connection with the performance of its obligations under
this Section 8.C.
D. Compliance Certificate. Within 120 days after the end
of each fiscal year of Lessee, Lessee shall deliver to Lessor such
compliance certificates as Lessor may reasonably require in order to
establish that Lessee is in compliance in all material respects with
all of the obligations, duties and covenants imposed on Lessee pursuant
to this Lease.
9. 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 that all costs, expenses and
obligations of every kind and nature whatsoever relating to the Properties shall
be performed and paid by Lessee.
10. 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, imposed upon or arising
with respect to Lessee, Lessor, any of the Properties, this Lease, the rental or
other payments due under this Lease during the Lease Term which affect in any
manner the net return realized by Lessor under this Lease, including, without
limitation, the following:
A. All taxes and assessments upon any of the Properties
or any part thereof and upon any Personalty, whether belonging to
Lessor or Lessee, or any tax or charge levied in lieu of such taxes and
assessments;
B. All taxes, charges, license fees and or similar fees
imposed by reason of the use of any of the Properties by Lessee; and
C. All excise, transaction, privilege, license, sales,
use and other taxes upon the rental or other payments due under this
Lease, the leasehold estate of either party or the activities of either
party pursuant to this Lease.
Notwithstanding the foregoing, but without limiting the preceding
obligation of Lessee to pay all taxes which are imposed on the rental or other
payments due under this Lease, in no event will Lessee be required to pay any
net income taxes (i.e., taxes which are determined taking into account
deductions for depreciation, interest, taxes and ordinary and necessary business
expenses) or franchise taxes of Lessor (unless imposed in lieu of other taxes
that would otherwise be the obligation of Lessee under this Lease, including,
without limitation, any "gross receipts tax" or any similar tax based upon gross
income or receipts of Lessor with respect to this Lease which does not take into
account deductions from depreciation, interest, taxes and/or ordinary or
necessary business expenses), any transfer taxes of Lessor, or any tax imposed
with respect to the sale, exchange or other disposition by Lessor, in whole or
in part, of any of the Properties or Lessor's interest in this Lease (other than
transfer or recordation taxes imposed in connection with the transfer of any of
the Properties to Lessee, the substitution of a Substitute Property or the
termination of this Lease pursuant to the provisions of this Lease; provided,
however, that Lessor shall be obligated to pay
17
any transfer or recordation taxes imposed in connection with the transfer of the
Properties to Lessee pursuant to Section 31 unless the ROFO Notice contemplates
otherwise).
All taxing authorities shall be instructed to send all tax and
assessment invoices to Lessee and Lessee shall promptly provide Lessor and
Lender with copies of all tax and assessment invoices received by Lessee. Upon
request, Lessee shall also provide Lessor and Lender with evidence that such
invoices were paid 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 $1,000.00,
after prior written notice to Lessor), by appropriate legal proceedings
conducted in good faith and with due diligence, the amount or validity or
application, in whole or in part, of any item specified in this Section or lien
therefor, provided that (i) the collection thereof from the applicable
Properties or any interest therein shall have been suspended, (ii) neither such
Properties nor any interest therein would be in any danger of being sold,
forfeited or lost by reason of such proceedings, (iii) no Event of Default has
occurred and is continuing, and (iv) Lessee shall have deposited with Lessor
adequate reserves for the payment of the taxes, together with all interest and
penalties thereon, unless paid in full under protest, or Lessee shall have
furnished the security as may be required in the proceeding or as may be
required by Lessor to ensure payment of any contested taxes.
11. UTILITIES. Lessee shall contract, in its own name, for, and
pay when due, all charges for the connection and use of water, gas, electricity,
telephone, garbage collection, sewer use and other utility services supplied to
the Properties during the Lease Term. Under no circumstances shall Lessor be
responsible for any interruption of any utility service.
12. INSURANCE. Throughout the Lease Term, Lessee shall maintain
with respect to each of the Properties, 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):
A. Insurance against loss, damage or destruction by fire
and other casualty, including theft, vandalism and malicious mischief,
flood (for each of the Properties which is in a location designated by
the Federal Emergency Management Administration as a Special Flood
Hazard Area), earthquake (for each of the Properties which is in an
area subject to destructive earthquakes within recorded history),
boiler explosion (for each of the Properties with a boiler), plate
glass breakage, sprinkler damage (for each of the Properties which has
a sprinkler system), all matters covered by a standard extended
coverage endorsement, 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 each of the Properties
for not less than 100% of their full insurable replacement cost.
B. Commercial general liability and property damage
insurance, including a products liability clause, covering Lessor,
Remainderman 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
Properties or adjoining ways, streets or sidewalks and, if applicable,
insurance covering Lessor, Remainderman and Lessee against liability
arising from the sale of liquor, beer or wine on the Properties. 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 19 hereof to the extent insurable, and a
18
"severability of interest" clause or endorsement which precludes the
insurer from denying the claim of Lessee, Remainderman 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 or Remainderman may
reasonably require from time to time, and shall be of form and
substance satisfactory to Lessor and Remainderman.
C. 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 12 months.
D. State Worker's compensation insurance in the
statutorily mandated limits, employer's liability insurance with limits
not less than $500,000 or such greater amount as Lessor or Remainderman
may from time to time require and such other insurance as may be
necessary to comply with applicable laws.
E. Such other insurance as may from time to time be
reasonably required by Lessor, Remainderman or Lender in order to
protect their respective interests with respect to the Properties.
All insurance policies shall:
(i) Provide for a waiver of subrogation by the
insurer as to claims against Lessor, Remainderman, Lender and
their respective employees and agents;
(ii) Provide that any "no other insurance" clause
in the insurance policy shall exclude any policies of
insurance maintained by Lessor, Remainderman or Lender and
that the insurance policy shall not be brought into
contribution with insurance maintained by Lessor, Remainderman
or Lender;
(iii) Contain a standard without contribution
mortgage clause endorsement in favor of Lender and any other
party 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,
Remainderman, Lender and to any other party covered by any
standard mortgage clause endorsement;
(v) Provide that the insurer shall not have the
option to restore the applicable Properties if Lessor or
Lessee elects to terminate this Lease in accordance with the
terms hereof;
(vi) Be issued by insurance companies licensed to
do business in the states in which the Properties are located
and which are rated A:VI or better by A.M. Best's Insurance
Guide or are otherwise approved by Lessor and Remainderman,
which approval shall not be unreasonably withheld or delayed;
and
(vii) Provide that the insurer shall not deny a
claim nor shall the insurance be cancelled, invalidated or
suspended by (1) any action, inaction,
19
conduct or negligence of Lessor, Remainderman, Lender or any
other party covered by any standard mortgage clause
endorsement, Lessee, anyone acting for Lessee or any subtenant
or other occupant of any of the Properties, (2) occupancy or
use of any of the Properties for purposes more hazardous than
permitted by such policies, (3) any foreclosure or other
proceedings relating to any of the Properties or change in
title to or ownership of any of the Properties, or (4) any
breach or violation by Lessee or any other person of any
warranties, declarations or conditions contained in such
policies or the applications for such policies.
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, Remainderman and Lender as additional named
insureds as their interests may appear and shall be payable as set forth in
Section 21 hereof. All such policies shall be written as primary policies, with
deductibles not to exceed 10% of the amount of coverage. Any other policies,
including any policy now or hereafter carried by Lessor, Remainderman or Lender,
shall serve as excess coverage. Lessee shall procure policies for all insurance
for periods of not less than one year and shall provide to Lessor, Remainderman
and Lender certificates of insurance or, upon the request of Lessor,
Remainderman or Lender, duplicate originals of insurance policies evidencing
that insurance satisfying the requirements of this Lease is in effect at all
times. In the event of any transfer by Lessor of Lessor's interest in the
Properties or any financing or refinancing of Lessor's interest in the
Properties, or by Remainderman of Remainderman's interest in the Properties,
Lessee shall, upon not less than ten (10) days' prior written notice, deliver to
Lessor and Remainderman or any Lender providing such financing or refinancing,
as the case may be, certificates of all insurance required to be maintained by
Lessee hereunder naming such transferee or such Lender, as the case may be, as
an additional named insured to the extent required herein effective as of the
date of such transfer, financing or refinancing.
13. TAX AND INSURANCE IMPOUND. Upon the occurrence of an Event of
Default which is not cured within five days after Lessor shall have given Lessee
notice of the occurrence of such Event of Default, 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 for each of the Properties. 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 sums due under this Lease. Should
additional funds be required at any time, Lessee shall pay the same to Lessor on
demand. Lessee shall advise Lessor of all taxes and insurance bills which are
due and shall cooperate fully with Lessor in assuring that the same are paid
timely. 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
added to the impounded funds. In the event of any default by Lessee, Lessor may
apply all impounded funds (including any interest) against any sums due from
Lessee to Lessor. Any collected impound funds which are not applied pursuant to
the previous sentence against any sums due from Lessee to Lessor shall be used
to pay the taxes and insurance premiums for which they were collected. Lessor
shall give to Lessee an
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annual accounting showing all credits and debits to and from such impounded
funds received from Lessee.
14. PAYMENT OF RENTAL AND OTHER SUMS. All rental and other sums
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
and impound payments, if any, are transferred by Automated Clearing House Debit
directly from Lessee's bank account to such account as Lessor may designate. Any
delinquent payment (that is, any payment not made within five calendar days
after the date when due) shall, in addition to any other remedy of Lessor, incur
a late charge of 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.
15. USE. Except as set forth below, each of the Properties shall
be used solely for the operation of a Permitted Facility in accordance with the
standards of operations then in effect on a system-wide basis, and for no other
purpose. Lessee shall occupy the Properties promptly following the Effective
Date and, except as set forth below and except during periods when any of the
Properties is untenantable by reason of fire or other casualty or condemnation
(provided, however, during all such periods while any of the Properties is
untenantable, Lessee shall strictly comply with the terms and conditions of
Section 21 of this Lease), Lessee shall at all times during the Lease Term
occupy each of the Properties and shall diligently conduct its business on each
of the Properties as a Permitted Facility. In connection with any alterations to
be performed by Lessee at any Property pursuant to this Lease, Lessee may cease
diligent operation of business at such Property for a period not to exceed 180
days and may do so only once with respect to such Property within any five-year
period during the Lease Term. As long as no Event of Default has occurred and is
continuing, Lessee may also cease diligent operations of business at any
Property for reasons other than as contemplated by the preceding sentence,
provided that (i) no Property may be closed pursuant to this sentence for more
than 30 days from the date of closure, and (ii) no more than one Property may be
closed at any one time pursuant to this sentence. If Lessee does discontinue
operation as permitted by this Section, Lessee shall (i) give written notice to
Lessor within 10 days after Lessee elects to cease operation, (ii) provide
adequate protection and maintenance of any such Properties during any period of
vacancy, (iii) comply with all Applicable Regulations and otherwise comply with
the terms and conditions of this Lease other than the continuous use covenant
set forth in this Section, and (iv) pay all costs necessary to restore such
Properties to their condition on the day operation of the business ceased at
such time as such Properties are reopened for Lessee's business operations or
other substituted use approved by Lessor as contemplated below. Notwithstanding
anything herein to the contrary, Lessee shall pay the Base Monthly Rental on the
first day of each month during any period in which Lessee discontinues
operation.
Lessee shall not, by itself or through any assignment, sublease or
other type of transfer, convert any of the Properties to a use other than a
Permitted Facility during the Lease Term without Lessor's consent, which consent
shall not be unreasonably withheld or delayed. Lessor
21
may consider any or all of the following in determining whether to grant its
consent, without being deemed to be unreasonable: (i) whether the rental paid to
Lessor would be equal to or greater than the anticipated rental assuming
continued existing use, (ii) whether the proposed rental to be paid to Lessor is
reasonable considering the converted use of the Properties and the customary
rental prevailing in the community for such use, (iii) whether the converted use
will be consistent with the highest and best use of the Properties, and (iv)
whether the converted use will increase Lessor's risks or decrease the value of
the Properties.
16. COMPLIANCE WITH LAWS, RESTRICTIONS, COVENANTS AND
ENCUMBRANCES. A. Lessee's use and occupation of each of the Properties, and the
condition thereof, shall, at Lessee's sole cost and expense, comply in all
material respects with all Applicable Regulations and all restrictions,
covenants and encumbrances of record with respect to each of the Properties. In
addition to the other requirements of this Section, Lessee shall, at all times
throughout the Lease Term, comply in all material respects with all Applicable
Regulations, including, without limitation, in connection with any maintenance,
repairs and replacements of the Properties undertaken by Lessee as required by
Section 17 of this Lease.
B. Lessee will not permit any act or condition to exist on or
about any of the Properties which will 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. 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 Properties, including, but not
limited to, making required "readily achievable" changes to remove any
architectural or communications barriers, and providing auxiliary aides and
services within the Properties. Lessee further agrees that any and all
alterations made to the Properties during the Lease Term will comply with any
applicable requirements of the ADA. All plans for alterations which must be
submitted to Lessor under the provisions of Section 18 must include a statement
from a licensed architect or engineer certifying that they have reviewed the
plans, and that the plans comply with all applicable provisions of the ADA. Any
subsequent approval or consent to the plans by Lessor shall not be deemed to be
a representation on Lessor's part that the plans comply with the ADA, which
obligation shall remain with Lessee. 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.
D. Lessee represents and warrants to Lessor as follows:
(i) To Lessee's Actual Knowledge and except as disclosed
in the Questionnaires, none of the Properties nor Lessee are in
violation of, or subject to, any pending or threatened investigation or
inquiry by any Governmental Authority or to any remedial obligations
under any Environmental Laws, and this representation and warranty
would continue to be true and correct following disclosure to the
applicable Governmental Authorities of all relevant facts, conditions
and circumstances, if any, actually known to Lessee pertaining to the
Properties.
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(ii) To Lessee's Actual Knowledge and except as disclosed
in the Questionnaires, all permits, licenses or similar authorizations
to construct, occupy, operate or use any buildings, improvements,
fixtures and equipment forming a part of any of the Properties by
reason of any Environmental Laws have been obtained.
(iii) To Lessee's Actual Knowledge and except as disclosed
in the Questionnaires, no Hazardous Materials have been used, handled,
manufactured, generated, produced, stored, treated, processed,
transferred, disposed of or otherwise Released in, on, under, from or
about any of the Properties, other than in De Minimis Amounts.
(iv) To Lessee's Actual Knowledge and except as disclosed
in the Questionnaires, the Properties do not contain Hazardous
Materials, other than in De Minimis Amounts, or underground storage
tanks.
(v) To Lessee's Actual Knowledge and except as disclosed
in the Questionnaires, there is no threat of any Release migrating to
any of the Properties.
(vi) To Lessee's Actual Knowledge and except as disclosed
in the Questionnaires, there is no past or present non-compliance with
Environmental Laws, or with permits issued pursuant thereto, in
connection with any of the Properties.
(vii) Lessee has not received any written notice from any
person or entity (including but not limited to a Governmental
Authority) relating to Hazardous Materials or Remediation thereof, of
possible liability of any person or entity pursuant to any
Environmental Law, other environmental conditions in connection with
any of the Properties, or any actual or potential administrative or
judicial proceedings in connection with any of the foregoing.
(viii) Lessee has truthfully and fully provided to Lessor,
in writing, any and all information relating to environmental
conditions in, on, under or from the Properties of which Lessee has
Actual Knowledge and that, to Lessee's Actual Knowledge, is contained
in Lessee's files and records, including but not limited to any reports
relating to Hazardous Materials in, on, under or from any of the
Properties.
(ix) To Lessee's Actual Knowledge and except as disclosed
in the Questionnaires: (1) all uses and operations on or of the
Properties, whether by Lessee or any other person or entity, have been
in compliance with all Environmental Laws and permits issued pursuant
thereto; (2) there have been no Releases in, on, under or from any of
the Properties, except in De Minimis Amounts; (3) there are no
Hazardous Materials in, on, or under any of the Properties, except in
De Minimis Amounts; and (4) the Properties have been kept free and
clear of all liens and other encumbrances imposed pursuant to any
Environmental Law (the "Environmental Liens"). To Lessee's Actual
Knowledge and except as disclosed in the Questionnaires, no tenant or
other user of any of the Properties has done any act that materially
increased the dangers to human health or the environment, posed an
unreasonable risk of harm to any person or entity (whether on or off
the Properties), impaired the value of any of the Properties, is
contrary to any requirement of any insurer, constituted a public or
private nuisance, constituted waste, or
23
violated any covenant, condition, agreement or easement applicable to
any of the Properties.
The terms "Lessee's Actual Knowledge" and "Actual Knowledge" as used in
this Section 16.D shall mean the conscious awareness of facts or other
information by any of Xxxxxxx X. Xxx, Xx., Xxxx X. Xxx or Xxxxxxx X. Xxx.
E. Lessee covenants to Lessor during the Lease Term that: (i) the
Properties shall not be in violation of or subject to any investigation or
inquiry by any Governmental Authority or to any remedial obligations under any
Environmental Laws except for such violations or investigations or inquiries
which relate to Hazardous Materials in De Minimis Amounts. If any investigation
or inquiry is initiated by any Governmental Authority (except for investigations
or inquiries which relate to Hazardous Materials in De Minimis Amounts), Lessee
shall promptly notify Lessor; (ii) all uses and operations on or of each of the
Properties, whether by Lessee or any other person or entity, shall be in
compliance in all material respects with all Environmental Laws and permits
issued pursuant thereto; (iii) there shall be no Releases in, on, under or from
any of the Properties, except in De Minimis Amounts or that do not violate any
Environmental Laws; (iv) there shall be no Hazardous Materials in, on, or under
any of the Properties, except in De Minimis Amounts or that do not violate any
Environmental Laws; (v) Lessee shall keep each of the Properties free and clear
of all Environmental Liens, whether due to any act or omission of Lessee or any
other person or entity; (vi) Lessee shall, at its sole cost and expense, fully
and expeditiously cooperate in all activities pursuant to subsection F below,
including but not limited to providing all relevant information and making
knowledgeable persons available for interviews; (vii) in the event that Lessor
notifies Lessee that it has knowledge of a Release or a Threatened Release at
any of the Properties or has a reasonable basis to believe that a material
violation of Environmental Laws at any of the Properties may have occurred,
Lessee shall, at its sole cost and expense, perform any environmental site
assessment or other investigation of environmental conditions in connection with
any of the Properties as may be reasonably requested by Lessor (including but
not limited to sampling, testing and analysis of soil, water, air, building
materials and other materials and substances whether solid, liquid or gas), and
share with Lessor and Environmental Insurer the reports and other results
thereof, and Lessor, Environmental Insurer and the other Indemnified Parties
shall be entitled to rely on such reports and other results thereof; (viii)
Lessee shall, at its sole cost and expense, comply with all reasonable written
requests of Lessor to (1) reasonably effectuate Remediation of any Release in,
on, under or from any of the Properties; (2) comply with any Environmental Law;
and (3) comply with any applicable directive from any Governmental Authority;
(ix) Lessee shall not do or allow any tenant or other user of any of the
Properties to do any act that materially increases the dangers to human health
or the environment or poses an unreasonable risk of harm to any person or entity
(whether on or off any of the Properties); and (x) Lessee shall, upon obtaining
such information, promptly notify Lessor in writing of (A) any Releases or
Threatened Releases in, on, under, from or migrating towards any of the
Properties in violation of any applicable Environmental Laws; (B) any
non-compliance with any Environmental Laws related in any way to any of the
Properties; (C) any Environmental Lien; (D) any required Remediation of
environmental conditions relating to any of the Properties; and (E) any written
notice of which Lessee becomes aware relating in any way to liability of any
person or entity pursuant to any Environmental Law, or any administrative or
judicial proceedings commenced or overtly threatened in connection with any
alleged violation of Environmental Laws.
24
X. Xxxxxx, Lender and any other person or entity designated by
Lessor, including but not limited to any receiver, any representative of a
Governmental Authority, and any environmental consultant, shall have the right,
but not the obligation, to enter upon the Properties at all reasonable times
(including, without limitation, in connection with any Securitization,
Participation or Transfer or in connection with a proposed sale or conveyance of
any of the Properties or a proposed financing or refinancing secured by any of
the Properties or in connection with the exercise of any remedies set forth in
this Lease, the Mortgages or the other Loan Documents, as applicable) to assess
any and all aspects of the environmental condition of the Properties and its
use, including but not limited to conducting any environmental assessment or
audit (the scope of which shall be determined in the sole and absolute
discretion of the party conducting the assessment) and taking samples of soil,
groundwater or other water, air, or building materials, and conducting other
invasive testing; provided, however, that any such persons (except in
emergencies) shall use reasonable efforts to undertake any such assessments or
investigations so as to minimize the impact on Lessee's business operations at
the Properties. Lessee shall cooperate with and provide access to Lessor, Lender
and any other person or entity designated by Lessor. Any such assessment and
investigation shall be at Lessor's sole cost and expense unless at the time of
any such assessment or investigation Lessor has knowledge of a Release or a
Threatened Release at any of the Properties or has a reasonable basis to believe
that a material violation of Environmental Laws at any of the Properties may
have occurred or an Event of Default has occurred and is continuing, in which
case Lessee shall be responsible for the cost of any such assessment or
investigation.
G. Lessee shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless each of the Indemnified Parties for, from
and against any and all Losses (excluding Losses suffered by an Indemnified
Party directly arising out of such Indemnified Party's gross negligence or
willful misconduct; provided, however, that the term "gross negligence" shall
not include gross negligence imputed as a matter of law to any of the
Indemnified Parties solely by reason of the Lessor's interest in any of the
Properties or Lessor's failure to act in respect of matters which are or were
the obligation of Lessee under this Lease) and costs of Remediation (whether or
not performed voluntarily), engineers' fees, environmental consultants' fees,
and costs of investigation (including but not limited to sampling, testing, and
analysis of soil, water, air, building materials and other materials and
substances whether solid, liquid or gas) imposed upon or incurred by or asserted
against any Indemnified Parties, and directly or indirectly arising out of or in
any way relating to any one or more of the following: (i) any presence of any
Hazardous Materials in, on, above, or under any of the Properties; (ii) any past
or present Release or Threatened Release in, on, above, under or from any of the
Properties; (iii) any activity by Lessee, any person or entity affiliated with
Lessee or any other tenant or other user of any of the Properties in connection
with any actual, proposed or threatened use, treatment, storage, holding,
existence, disposition or other Release, generation, production, manufacturing,
processing, refining, control, management, abatement, removal, handling,
transfer or transportation to or from any of the Properties of any Hazardous
Materials at any time located in, under, on or above any of the Properties; (iv)
any activity by Lessee, any person or entity affiliated with Lessee or any other
tenant or other user of any of the Properties in connection with any actual or
proposed Remediation of any Hazardous Materials at any time located in, under,
on or above any of the Properties, whether or not such Remediation is voluntary
or pursuant to court or administrative order, including but not limited to any
removal, remedial or corrective action; (v) any past, present or threatened
non-compliance or violations of any Environmental Laws (or permits issued
pursuant to any Environmental Law) in
25
connection with any of the Properties or operations thereon, including but not
limited to any failure by Lessee, any person or entity affiliated with Lessee or
any other tenant or other user of any of the Properties to comply with any order
of any Governmental Authority in connection with any Environmental Laws; (vi)
the imposition, recording or filing or the threatened imposition, recording or
filing of any Environmental Lien encumbering any of the Properties; (vii) any
administrative processes or proceedings or judicial proceedings in any way
connected with any matter addressed in this Section; (viii) any past, present or
threatened injury to, destruction of or loss of natural resources in any way
connected with any of the Properties, including but not limited to costs to
investigate and assess such injury, destruction or loss; (ix) any acts of
Lessee, any person or entity affiliated with Lessee or any other tenant or user
of any of the Properties in arranging for disposal or treatment, or arranging
with a transporter for transport for disposal or treatment, of Hazardous
Materials owned or possessed by Lessee, any person or entity affiliated with
Lessee or any other tenant or user of any of the Properties, at any facility or
incineration vessel owned or operated by another person or entity and containing
such or similar Hazardous Materials; (x) any acts of Lessee, any person or
entity affiliated with Lessee or any other tenant or user of any of the
Properties, in accepting any Hazardous Materials for transport to disposal or
treatment facilities, incineration vessels or sites selected by Lessee, any
person or entity affiliated with Lessee or any other tenant or user of any of
the Properties, from which there is a Release, or a Threatened Release of any
Hazardous Materials which causes the incurrence of costs for Remediation; (xi)
any personal injury, wrongful death, or property damage arising under any
statutory or common law or tort law theory relating to any of the Properties,
including but not limited to damages assessed for the maintenance of a private
or public nuisance or for the conducting of an abnormally dangerous activity on
or near any of the Properties; and (xii) any misrepresentation or inaccuracy in
any representation or warranty or material breach or failure to perform any
covenants or other obligations pursuant to this Section.
H. The obligations of Lessee and the rights and remedies of the
Indemnified Parties under the foregoing subsections D through G shall survive
the termination, expiration and/or release of this Lease.
17. CONDITION OF PROPERTIES; MAINTENANCE. Lessee, at its own
expense, will maintain all parts of each of the Properties in good repair and
sound condition, except for ordinary wear and tear, and will take all action and
will make all structural and non-structural, foreseen and unforeseen and
ordinary and extraordinary changes and repairs or replacements which may be
required to keep all parts of each of the Properties in good repair and sound
condition. Lessee waives any right to (i) require Lessor to maintain, repair or
rebuild all or any part of any of the Properties or (ii) make repairs at the
expense of Lessor, pursuant to any Applicable Regulations at any time in effect.
18. WASTE; ALTERATIONS AND IMPROVEMENTS. Lessee shall not commit
actual or constructive waste upon any of the Properties. Without the prior
written consent of Lessor, which consent shall not be unreasonably withheld or
conditioned, Lessee shall not (a) make any additions to or alter the structural
elements of the improvements at any of the Properties or the load-bearing walls,
roof, foundation or "footprint" of any building located at any of the
Properties, other than adding or replacing windows, (b) alter any material part
of any building system of any of the Properties in any manner, other than
replacements of parts of any building system with parts of like kind and of
equal or greater value, or (c) make any other change or
26
related series of other changes to any Property that is estimated to cost in
excess of $250,000 per Property, other than changes in the color or style of
wall colors/coverings, floor coverings or treatments or changes to (or
alterations of) exterior colors (any of (a), (b) or (c) being hereinafter
referred to as a "Material Alteration" and any alteration that does not
constitute a Material Alteration is hereinafter referred to as a "Non-Material
Alteration"). Lessee may undertake a Non-Material Alteration to any Property
without first notifying Lessor. If Lessor's consent is required hereunder and
Lessor consents to the making of any such alterations, the same shall be made
according to plans and specifications approved by Lessor and subject to such
other conditions as Lessor shall require. All alterations shall be made by
Lessee at Lessee's sole expense by licensed contractors and in accordance with
all applicable laws governing such alterations. Any work at any time commenced
by Lessee on any of the Properties 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 Material Alteration, Lessee shall
promptly provide Lessor with (i) evidence of full payment to all laborers and
materialmen contributing to the alterations, (ii) an architect's certificate
certifying the alterations to have been completed in conformity with the plans
and specifications, (iii) a certificate of occupancy (if the alterations are of
such a nature as would require the issuance of a certificate of occupancy), and
(iv) any other documents or information reasonably requested by Lessor. Upon
completion of any Non-Material Alteration for which a permit was issued, Lessee
shall promptly provide Lessor with a copy of such permit and evidence that the
Governmental Authority which issued the permit has signed off on the work done
pursuant to such permit (to the extent such sign off is required by Applicable
Regulations). Any addition to, or alteration of, any of the Properties
(excluding Personalty) shall automatically be deemed a part of the Properties
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. Lessee shall execute and file or record, as appropriate,
a "Notice of Non-Responsibility," or any equivalent notice permitted under
applicable law in the states where the applicable Properties are located.
19. 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 the
gross negligence or willful misconduct of such Indemnified Party; provided,
however, that the term "gross negligence" shall not include gross negligence
imputed as a matter of law to any of the Indemnified Parties solely by reason of
the Lessor's interest in any of the Properties or Lessor's failure to act in
respect of matters which are or were the obligation of Lessee under this Lease)
caused by, incurred or resulting from Lessee's operations of or relating in any
manner to any of the Properties, whether relating to their 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, or to which any Indemnified Party
is subject because of Lessor's or Remainderman's interest in any of the
Properties, including, without limitation, Losses arising from (1) any accident,
injury to or death of any person or loss of or damage to property occurring in,
on or about any of the Properties or portion thereof or on the adjoining
sidewalks, curbs, parking areas, streets or ways, (2) any use, non-use or
condition in, on or about, or possession, alteration, repair, operation,
maintenance or management of, any of the Properties or any portion thereof or on
the adjoining sidewalks, curbs, parking areas, streets or ways, (3) any
representation or warranty made herein by Lessee, in any certificate delivered
in connection herewith or in any other agreement to which Lessee is a party
27
or pursuant thereto being false or misleading in any material respect as of the
date of such representation or warranty was made, (4) performance of any labor
or services or the furnishing of any materials or other property in respect to
any of the Properties or any portion thereof, (5) any taxes, assessments or
other charges which Lessee is required to pay under Section 10, (6) any lien,
encumbrance or claim arising on or against any of the Properties or any portion
thereof under any Applicable Regulation or otherwise which Lessee is obligated
hereunder to remove and discharge, or the failure to comply with any Applicable
Regulation, (7) the claims of any invitees, patrons, licensees or subtenants of
all or any portion of any of the Properties or any Person acting through or
under Lessee or otherwise acting under or as a consequence of this Lease or any
sublease, (8) any act or omission of Lessee or its agents, contractors,
licensees, subtenants or invitees, (9) any contest referred to in Section 10,
and (10) the sale of liquor, beer or wine on any of the Properties. 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.
20. QUIET ENJOYMENT. So long as Lessee shall pay the rental and
other sums 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 Properties. Notwithstanding the foregoing, however, in no
event shall Lessee be entitled to bring any action against Lessor to enforce its
rights hereunder if an Event of Default shall have occurred and be continuing.
21. CONDEMNATION OR DESTRUCTION. A. In the event of a taking of all
or any part of any of the Properties for any public or quasi-public purpose by
any lawful power or authority by exercise of the right of condemnation or
eminent domain or by agreement between Lessor, Lessee and those authorized to
exercise such right ("Taking") or the commencement of any proceedings or
negotiations which might result in a Taking or any damage to, or destruction of,
any of the Properties or any part thereof (a "Casualty"), Lessee will promptly
give written notice thereof to Lessor, generally describing the nature and
extent of such Taking, proceedings, negotiations or Casualty and including
copies of any documents or notices received in connection therewith. Thereafter,
Lessee shall promptly send Lessor copies of all correspondence and pleadings
relating to any such Taking, proceedings, negotiations or Casualty. During all
periods of time following a Casualty, Lessee shall ensure that the subject
Property is secure and does not pose any risk of harm to adjoining property
owners or occupants or third-parties.
B. In the event of (i) a Taking of all of any of the Properties,
other than for temporary use, (ii) a Taking of substantially all of any of the
Properties (other than for temporary use) that results in Lessee making a good
faith determination that the restoration and continued use of the remainder of
such Property as a Permitted Facility would be uneconomic (each of (i) and (ii),
a "Total Taking"), or (iii) a Casualty of all or substantially all of any of the
Properties that results in Lessee making a good faith determination that the
restoration and continued use of such Property as a Permitted Facility would be
uneconomic (a "Total Casualty"), Lessor shall be entitled, subject to the
provisions of this Section 21, to receive the entire award, insurance proceeds
or payment in connection therewith without deduction for any estate vested in
Lessee by this Lease. Lessee hereby expressly assigns to Lessor all of its
right, title and interest in and to every such award, insurance proceeds or
payment and agrees that Lessee shall not be entitled to any award, insurance
proceeds or payment for the value of Lessee's leasehold interest in this
28
Lease. Lessee shall be entitled to claim and receive any award or payment from
the condemning authority expressly granted for the taking of 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 Taking or otherwise reduce the amount recoverable by Lessor
for the Total Taking. Lessee shall be entitled to claim and receive any
insurance proceeds with respect to the Personalty, the interruption of its
business and moving expenses, but only if such claim or proceeds does not
adversely affect or interfere with the prosecution of Lessor's claim for the
Total Casualty or otherwise reduce the amount recoverable by Lessor for the
Total Casualty.
In the event of a Total Taking or Total Casualty, Lessee shall have
the right to terminate this Lease with respect to the applicable Property by
notice (the "Termination Notice") given to Lessor not later than 30 days after
the Total Taking or Total Casualty, as applicable. The Termination Notice must:
(i) specify a date on which this Lease with respect to such Property shall
terminate, which date shall be the last day of a calendar month occurring not
earlier than 120 days and not later than 150 days after the delivery of such
notice (the "Early Termination Date"); (ii) contain a certificate executed by
the president, chief financial officer or treasurer of Lessee which (X)
describes the Total Taking or Total Casualty, (Y) represents and warrants that
either the whole of such Property has been taken, or that substantially all of
such Property has been taken and Lessee has determined in good faith that the
restoration and continued use of the remainder of such Property as a Permitted
Facility would be uneconomic, or that either the whole or substantially all of
such Property has been damaged or destroyed and Lessee has determined in good
faith that the restoration and continued use of such Property as a Permitted
Facility would be uneconomic, and (Z) contains a covenant by Lessee that neither
Lessee or any Affiliate of Lessee will use such Property for a period of 2 years
following the Early Termination Date; and (iii) if the Early Termination Date
shall occur prior to the commencement of any extension options which may be
exercised pursuant to Section 27, contain either (X) an irrevocable rejectable
written offer (the "Rejectable Offer") of Lessee to purchase Lessor's interest
in such Property and in the net award for such Total Taking or net insurance
proceeds for such Total Casualty, as applicable, after deducting all costs, fees
and expenses incident to the collection thereof, including all costs and
expenses incurred by Lessor and Lender in connection therewith (the "Net Award")
on the Early Termination Date for a purchase price equal to the Stipulated Loss
Value (as defined below) for such Property, or (Y) a Rejectable Substitution
Offer to substitute a Substitute Property satisfying the applicable requirements
of Section 57.A for such Property and Lessor's interest in the Net Award. As
used herein, the term "Stipulated Loss Value" shall mean the sum of (a) the
product of the percentage specified on Schedule I attached hereto which
corresponds to the Early Termination Date multiplied by the Purchase Price for
such Property, plus (b) all Base Annual Rental, Additional Rental and other sums
and obligations then due and payable under this Lease, plus (c) in the event of
a Total Casualty only, the Prepayment Charge corresponding to such Property. In
the event of a termination of this Lease with respect to a Property pursuant to
this Section 21.B which does not involve the acceptance (or deemed acceptance)
of a Rejectable Substitution Offer, the Base Annual Rental then in effect shall
be reduced by an amount equal to the product of (x) the Applicable Rent
Reduction Percentage for such Property, and (y) the Base Annual Rental then in
effect.
If the Early Termination Date shall occur prior to the commencement
of any extension options which may be exercised pursuant to Section 27, Lessor
shall have 90 days from the
29
delivery of the Termination Notice to deliver to Lessee written notice of its
election to either accept or reject any Rejectable Offer or Rejectable
Substitution 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 or Rejectable
Substitution Offer. If the Mortgage corresponding to such Property is still
outstanding, any rejection of the Rejectable Offer or Rejectable Substitution
Offer by Lessor shall not be effective unless it is consented to in writing by
the Lender and such written consent is delivered to Lessee within such 90-day
period.
If Lessor accepts the Rejectable Offer or is deemed to have accepted
the Rejectable Offer or if, while the Mortgage corresponding to such Property is
still outstanding, any rejection of the Rejectable Offer by Lessor is not
consented to in writing by the Lender, then, on the Early Termination Date,
Lessor shall sell and convey, and Lessee shall purchase for the applicable
Stipulated Loss Value, Lessor's interest in such Property and the Net Award.
Lessee's obligations under this Lease with respect to such Property shall not be
terminated until the applicable Stipulated Loss Value is paid in full. Upon such
payment, (i) Lessor shall convey such Property to Lessee "as-is" by quit-claim
deed, subject to all matters of record (except for the Mortgage corresponding to
such Property and any other consensual liens granted by Lessor other than those
granted by Lessor at the request of Lessee), and without representation or
warranty, and (ii) all obligations of either party hereunder with respect to
such 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 with respect to such Property (including, without
limitation, Sections 16 and 19) and Lessee's obligations to pay any sums
(whether payable to Lessor or a third party) accruing under this Lease with
respect to such Property prior to the Early Termination Date shall survive the
termination of this Lease with respect to such Property. This Lease shall,
however, continue in full force and effect with respect to all other Properties.
If Lessor accepts the Rejectable Substitution Offer or is deemed to
have accepted the Rejectable Substitution Offer or if, while the Mortgage
corresponding to such Property is still outstanding, any rejection of the
Rejectable Substitution Offer by Lessor is not consented to in writing by the
Lender, then, on the Early Termination Date, Lessee shall complete such
substitution, subject, however, to the satisfaction of each of the applicable
terms and conditions set forth in Section 57. Upon such substitution (i) Lessee
shall be entitled to claim and receive the Net Award and Lessor shall pay over
to Lessee any portion of the Net Award which Lessor shall have received prior to
such date and (ii) all obligations of either party hereunder with respect to the
Property being replaced shall cease as of the Early Termination Date, provided,
however, Lessee's obligations to the Indemnified Parties under any
indemnification provisions of this Lease with respect to such Property
(including, without limitation, Sections 16 and 19) and Lessee's obligations to
pay any sums (whether payable to Lessor or a third party) accruing under this
Lease with respect to such Property prior to the Early Termination Date shall
survive the termination of this Lease with respect to such Property. This Lease
shall, however, continue in full force and effect with respect to all other
Properties.
Lessee shall be solely responsible for the payment of all costs and
expenses incurred in connection with the conveyance of a Property to Lessee
pursuant to this Section 21, including, without limitation, to the extent
applicable, the cost of title insurance, survey charges, stamp
30
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 a Property to Lessee or the termination of this Lease with respect
to a Property pursuant to the provisions of this Section 21, Lessee's attorneys'
fees and the reasonable attorneys' fees and expenses of counsel to Lessor and
Lender.
If Lessor rejects the Rejectable Offer or Rejectable Substitution
Offer and, as long as the Mortgage corresponding to the Property subject to such
Rejectable Offer or Rejectable Substitution Offer is still outstanding, such
rejection is consented to in writing by Lender (and such written consent
delivered to Lessee within the applicable 90-day period), or if the Early
Termination Date shall occur after the commencement of any extension options
exercised pursuant to Section 27, then (i) the Net Award shall be paid to and
belong to Lessor, (ii) on the Early Termination Date, Lessee shall pay to Lessor
all Base Annual Rental, Additional Rental and other sums and obligations then
due and payable under this Lease, and (iii) all obligations of either party
hereunder shall cease as of the Early Termination Date with respect to the
applicable Property, provided, however, Lessee's obligations to the Indemnified
Parties with respect to such Property under any indemnification provisions of
this Lease with respect to such Property (including, without limitation,
Sections 16 and 19) and Lessee's obligations to pay any sums (whether payable to
Lessor or a third party) accruing under this Lease with respect to such Property
prior to the Early Termination Date shall survive the termination of this Lease.
This Lease shall, however, continue in full force and effect with respect to all
other Properties.
C. In the event of a Taking of all or any part of any of the
Properties for a temporary use ("Temporary Taking"), this Lease shall remain in
full force and effect without any reduction of Base Annual Rental, Additional
Rental or any other sum payable hereunder. In the event that any restoration to
the corresponding Property is necessary as a result of a Temporary Taking, the
award for a Temporary Taking, whether paid by damages, rent or otherwise, shall
be first applied to the costs of such restoration, which restoration shall be
promptly commenced and completed by Lessee pursuant to the terms of Section 18
above if the termination of such Temporary Taking occurs prior to the date of
expiration of this Lease and the restoration can reasonably be completed by such
date. If the amount of the award with respect to such Temporary Taking exceeds
the costs of restoration, the excess award shall be paid to Lessee, unless the
period of occupation and use by the condemning authorities shall extend beyond
the date of expiration of this Lease, in which case the excess award made for
such Taking shall be apportioned between Lessor and Lessee as of the date of
such expiration.
D. In the event of a Taking which is not a Total Taking or a
Temporary Taking ("Partial Taking") or of a Casualty which is not a Total
Casualty (a "Partial Casualty"), all awards, compensation or damages shall be
paid to Lessor, and Lessor shall have the option to (i) terminate this Lease
with respect to the Property affected, provided that, as long as the Mortgage
corresponding to the applicable Property is still outstanding, Lessor shall have
obtained Lender's prior written consent, by notifying Lessee within 60 days
after Lessee gives Lessor notice of such Partial Casualty or that title has
vested in the taking authority or (ii) continue this Lease in effect, which
election may be evidenced by either a notice from Lessor to Lessee or Lessor's
failure to notify Lessee that Lessor has elected to terminate this Lease with
respect to such Property within such 60-day period. Lessee shall have a period
of 60 days after Lessor's notice that it has elected to terminate this Lease
with respect to such Property during
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which to elect to continue this Lease with respect to such Property on the terms
herein provided. If Lessor elects to terminate this Lease with respect to such
Property and Lessee does not elect to continue this Lease with respect to such
Property or shall fail during such 60-day period to notify Lessor of Lessee's
intent to continue this Lease with respect to such Property, then this Lease
shall terminate with respect to such Property as of the last day of the month
during which such period expired. Lessee shall then immediately vacate and
surrender such Property, all obligations of either party hereunder with respect
to such Property shall cease as of the date of termination (provided, however,
Lessee's obligations to the Indemnified Parties under any indemnification
provisions of this Lease with respect to such Property (including, without
limitation, Sections 16 and 19) and Lessee's obligations to pay Base Annual
Rental, Additional Rental and all other sums (whether payable to Lessor or a
third party) accruing under this Lease with respect to such Property prior to
the date of termination shall survive such termination) and Lessor may retain
all such awards, compensation or damages. The Lease shall continue in full force
and effect with respect to all other Properties. If Lessor elects not to
terminate this Lease with respect to such Property, or if Lessor elects to
terminate this Lease with respect to such Property but Lessee elects to continue
this Lease with respect to such Property, then this Lease shall continue in full
force and effect on the following terms: (i) all Base Annual Rental, Additional
Rental and other sums and obligations due under this Lease shall continue
unabated, and (ii) Lessee shall promptly commence and diligently prosecute
restoration of such Property to the same condition, as nearly as practicable, as
prior to such Partial Taking or Partial Casualty as approved by Lessor. Subject
to reasonable conditions for disbursement imposed by Lessor, Lessor shall
promptly make available in installments as restoration progresses an amount up
to but not exceeding the amount of any award, compensation or damages received
by Lessor after deducting all costs, fees and expenses incident to the
collection thereof, including all costs and expenses incurred by Lessor and
Lender in connection therewith (the "Net Restoration Amount"), upon request of
Lessee accompanied by evidence reasonably satisfactory to Lessor that such
amount has been paid or is due and payable and is properly a part of such costs
and that Lessee has complied with the terms of Section 18 above in connection
with the restoration. As long as the Mortgage corresponding to the Property
affected by such Partial Taking or Partial Casualty is outstanding, the Net
Restoration Amount shall be held by Lender in an interest-bearing account until
disbursed pursuant to this Section 21.D. Prior to the disbursement of any
portion of the Net Restoration Amount 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. Lessor shall be entitled to keep any
portion of the Net Restoration Amount which may be in excess of the cost of
restoration, subject to the rights of Lender under the Loan Documents, and
Lessee shall bear all additional costs, fees and expenses of such restoration in
excess of the Net Restoration Amount. If this Lease is terminated with respect
to any Property as a result of a Partial Casualty, simultaneously with such
termination Lessee shall pay Lessor an amount equal to the insurance deductible
applicable to such Partial Casualty.
E. 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 Taking shall be adjusted by Lessor, provided that, unless and until
Lessor has previously rejected a Rejectable Offer or Rejectable Substitution
Offer with respect to such Total Taking pursuant to the provisions of Section
21.B, Lessor shall obtain Lessee's prior written consent (which consent shall
not be unreasonably withheld, delayed or conditioned) before a final settlement
of the
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amount of such award. Any award relating to a Partial Taking shall be adjusted
by Lessor, provided that Lessor shall obtain Lessee's prior written consent
(which consent shall not be unreasonably withheld, delayed or conditioned)
before a final settlement of the amount of such award. Notwithstanding the
foregoing or any other provisions of this Section to the contrary, if at the
time of any Taking or any Casualty or at any time thereafter there shall be an
Event of Default existing under this Lease, 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 an award on account
of such Taking or for insurance proceeds on account of such Casualty and to
collect such award or proceeds and apply the same, after deducting all costs,
fees and expenses incident to the collection thereof, 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. Notwithstanding the foregoing, nothing in this Section 21 shall
be construed as limiting or otherwise adversely affecting the representations,
warranties, covenants and characterizations set forth in Lease, including,
without limitation, those provisions set forth in Section 3 of this Lease.
22. INSPECTION. Lessor and its authorized representatives shall have
the right, upon giving reasonable advance notice, to enter any of the Properties
or any part thereof during normal business hours of Lessee in order to inspect
the same and make photographic or other evidence concerning Lessee's compliance
with the terms of this Lease or in order to show the Properties to prospective
purchasers and lenders. 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 any of the Properties and any other loss
occasioned by such entry so long as Lessor shall have used reasonable efforts
not to unreasonably interrupt Lessee's normal business operations. Lessee shall
keep and maintain at the Properties or Lessee's corporate headquarters full,
complete and appropriate books of account and records of Lessee's business
relating to the Properties in accordance with GAAP. Lessee's books and records
shall be open for inspection at reasonable times and upon reasonable notice by
Lessor, Lender and their respective auditors or other authorized representatives
and shall show such information as is reasonably necessary to determine
compliance with Lessor's obligations under the Loan Documents.
23. DEFAULT, REMEDIES AND MEASURE OF DAMAGES. A. Each of the following
shall be an event of default 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 statement or account which is false in any material
respect and could reasonably be expected to result in damages to
Lessor;
(ii) If any rent or other monetary sum due under this
Lease is not paid within five days from the date when due; provided,
however, notwithstanding the occurrence of such an Event of Default,
Lessor shall not be entitled to exercise its remedies set forth
below unless and until Lessor shall have given Lessee notice thereof
and a period of five days from the delivery of such notice shall
have elapsed without such Event of Default being cured;
33
(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 any of the
Properties or the rental or other payments due under this Lease or a
claim against Lessor, unless Lessee is contesting such taxes,
assessments or other charges in accordance with the provisions of
Section 10 of this Lease;
(iv) If Lessee or any of the Guarantors becomes
insolvent within the meaning of the Code, files or notifies Lessor
that it intends to file a petition under the Code, initiates a
proceeding under any similar law or statute relating to bankruptcy,
insolvency, reorganization, winding up or adjustment of debts
(collectively, hereinafter, an "Action"), becomes the subject of
either a petition under the Code or an Action which is not dissolved
within 90 days after filing, or is not generally paying its debts as
the same become due;
(v) If Lessee vacates or abandons any of the Properties
other than in accordance with the provisions of Section 15 of this
Lease;
(vi) If Lessee fails to observe or perform any of the
other covenants (except with respect to a breach of the Aggregate
Fixed Charge Coverage Ratio, which breach is addressed in subitem
(ix) below), conditions or obligations of this Lease; provided,
however, if any such failure does not involve the payment of any
monetary sum, 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 after receipt of
notice thereof, 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 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 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 30 day period, which shall
in no event exceed 90 days after receiving notice of such failure
from Lessor. If Lessee shall fail to correct or cure such failure
within such 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 there is an "Event of Default" or a breach or
default, after the passage of all applicable notice and cure or
grace periods, under any other Sale-Leaseback Document or any of the
Other Agreements; provided, however, that (x) an "Event of Default"
or a breach or default, after the passage of all applicable notice
and cure or grace periods, under any Other Agreement relating to a
property for which Lender or an Affiliate of Lender has made a loan
to one of the Lessor Entities which has not been the subject of a
Loan Pool shall not constitute an Event of Default under this Lease
if the loans secured by the Mortgages have been the subject of a
Loan Pool, and (y) an "Event of Default" or a breach or default,
after the passage of all applicable notice and cure or grace
periods, under any Other Agreement relating to a property for which
Lender or an Affiliate of Lender has made a loan to one of the
Lessor Entities which has been the
34
subject of a Loan Pool shall not constitute an Event of Default
under this Lease if the loans secured by the Mortgages have been the
subject of a different Loan Pool;
(viii) If a final, nonappealable judgment is rendered by
a court against Lessee which has a material adverse effect on either
the ability to conduct business at any of the Properties for its
intended use or Lessee's ability to perform its obligations under
this Lease, or is in the amount of $100,000.00 or more, and in
either event is not discharged or provision made for such discharge
within 60 days from the date of entry thereof;
(ix) If there is a breach of the Aggregate Fixed Charge
Coverage Ratio requirement and Lessor shall have given Lessee notice
thereof and Lessee shall have failed within a period of 20 days from
the delivery of such notice to either:
(1) deliver a Rejectable Substitution Offer
to Lessor for the substitution of such Substitute
Properties satisfying the applicable requirements of
Section 57.A for the Properties (starting with the
Property with the lowest "Fixed Charge Coverage Ratio"
(determined as contemplated in the following sentence)
and proceeding in ascending order to the Property with
the next lowest Fixed Charge Coverage Ratio) as is
necessary to cure the breach of the Aggregate Fixed
Charge Coverage Ratio requirement;
(2) deliver a Rejectable Purchase Offer to
Lessor to purchase such of the Properties (starting with
the Property with the lowest Fixed Charge Coverage Ratio
and proceeding in ascending order to the Property with
the next lowest Fixed Charge Coverage Ratio) as is
necessary to cure the breach of the Aggregate Fixed
Charge Coverage Ratio requirement; or
(3) deliver notice to Lessor that it has
elected to pay the FCCR Rent Prepayment Amount (as
hereinafter defined) on the first day of the calendar
month immediately following the date such notice is
delivered.
For purposes of the preceding subitems (1) and (2), the definitions
set forth in Section 8.A of this Lease with respect to the calculation of the
Aggregate Fixed Charge Coverage Ratio shall be deemed modified as applicable to
provide for the calculation of a Fixed Charge Coverage Ratio for each Property
on an individual basis rather than on an aggregate basis with all the other
Properties. For purposes of such calculation, the Operating Lease Expense with
respect to this Lease for each such Property shall equal the product of (x) the
Applicable Rent Reduction Percentage for such Property, and (y) the Base Annual
Rental then in effect.
If Lessee makes a Rejectable Substitution Offer or Rejectable
Purchase Offer as contemplated by subitems (1) and (2) above, unless Lessor
rejects such Rejectable Substitution Offer or Rejectable Purchase Offer as
contemplated by Section 57 or 58, as applicable, the failure of Lessee to
complete such substitutions or purchases within the time period contemplated by
Section 57 or 58, as applicable, shall be deemed an Event of Default without
further notice or demand of any kind being required. If Lessee delivers notice
to Lessor that it has elected to pay the FCCR Rent Prepayment Amount as provided
in subitem (3) above, the failure of Lessee to pay Lessor the FCCR Rent
Prepayment Amount on the first day of the calendar month immediately
35
following the date such notice is delivered shall be deemed an Event of Default
without further notice or demand of any kind being required.
In the event Lessee elects to pay Lessor the FCCR Rent Prepayment
Amount as provided in subitem (3) above, Base Monthly Rental beginning with the
calendar month in which such payment is made shall be equal to the Base Monthly
Rental then in effect reduced by the FCCR Rent Reduction Amount (as hereinafter
defined).
For purposes of this Section 23.A(ix), the following terms shall be
defined as set forth below:
"FCCR Rent Prepayment Amount" means the present value,
discounted on a monthly basis at 8.99% per annum, of the FCCR Rent
Reduction Amount for each month beginning with the calendar month in
which the FCCR Rent Prepayment Amount is paid and ending with the
calendar month of January, 2022, inclusive.
"FCCR Rent Reduction Amount" the product of (x) the Base
Monthly Rental for the last month of the fiscal year for which the
breach of the Aggregate Fixed Charge Coverage Ratio requirement
occurred and (y) the Fixed Charge Coverage Shortfall Percentage. For
purposes of illustration and not limitation, if (i) Lessee's
Aggregate Fixed Charge Coverage Ratio for the fiscal year ending
December 31, 2009 was 1.2:1 (which results in a Fixed Charge
Coverage Shortfall Percentage of 20%), (ii) Lessee paid the FCCR
Rent Prepayment Amount on September 1, 2010, and (iii) the Base
Monthly Rental for December, 2009 was $100, then the Base Monthly
Rental payment beginning on September 1, 2010 shall be equal to the
Base Monthly Rental for August, 2010 reduced by the sum of $20.
"Fixed Charge Coverage Shortfall Percentage" means the
percentage represented by (x) 1 minus (y) a fraction, the numerator
of which shall be the Aggregate Fixed Charge Coverage Ratio for the
fiscal year for which the breach of the Aggregate Fixed Charge
Coverage Ratio requirement occurred, and the denominator of which
shall be 1.50:1.
Notwithstanding the foregoing, if, within a 30 day period after the
delivery of Lessor's notice to Lessee of Lessee's breach of the Aggregate Fixed
Charge Coverage Ratio requirement, Lessee provides evidence satisfactory to
Lessor that the Aggregate Fixed Charge Coverage Ratio is at least 1.50:1 for the
twelve calendar month period immediately preceding the delivery to Lessor of
such evidence, no Event of Default shall be deemed to have occurred as a result
of such breach of the Aggregate Fixed Charge Coverage Ratio requirement; or
(x) If Lessee shall fail to maintain insurance in
accordance with the requirements of Section 12 of this Lease; or
(xi) If Lessee shall fail to sign any instrument,
certificate, financing statement or document in accordance with the
provisions of Sections 24 or 25 of this Lease and such failure shall
not be cured within five days following notice from Lessor.
B. Upon the occurrence of an Event of Default, with or without
notice or demand, except the notice required under certain circumstances by
subsection A. above or such other
36
notice as may be required by statute and cannot be waived by Lessee (all other
notices being hereby waived), Lessor shall be entitled to exercise, 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 Properties shall cease and this Lease, except as
to Lessee's liability, shall be terminated.
(ii) To reenter and take possession of any or all of the
Properties 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 any or all of the
Properties 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 any of the
Properties to Lessor, deliver to Lessor or its agents the keys to
any of the Properties, 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 this 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 as specified in said notice.
(iii) To cause all Personalty located on or at any or
all of the Properties 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 bring an action against Lessee for any damages
sustained by Lessor or any equitable relief available to Lessor.
(v) To relet any or all of the Properties 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 sums due from Lessee in such order as Lessor may, in it
sole discretion, determine, which other sums include, without
limitation, all repossession costs, brokerage commissions,
attorneys' fees and expenses, employee 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 any of the Properties or any part
thereof and shall in no event be liable for refusal or failure to
relet any of the Properties or any part thereof, or, in the event of
any such reletting, for refusal or failure to collect any rent due
upon such 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.
37
(vi) (x) To recover from Lessee all rent and other
monetary sums then due and owing under this Lease; and (y) to
accelerate and recover from Lessee the present value (discounted at
the rate of 6% per annum) of all rent and other monetary sums
scheduled to become due and owing under this Lease after the date of
such breach for the entire original scheduled Lease Term, provided,
however, in no event shall such recovery be less than the sum of (i)
the product of the percentage specified on Schedule I attached
hereto which corresponds to the month in which such Event of Default
first occurred multiplied by the sum of the Purchase Price for all
of the Properties which are then subject to the Lease plus (ii) the
sum of the Prepayment Charges corresponding to all of the Properties
which are then subject to this Lease.
(vii) To recover from Lessee all costs and expenses,
including attorneys' fees, court costs, expert witness fees, costs
of tests and analyses, travel and accommodation expenses, deposition
and trial transcripts, copies and other similar costs and fees, paid
or incurred by Lessor as a result of such breach, regardless of
whether or not legal proceedings are actually commenced.
(viii) 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 and expenses 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.
(ix) 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 against any sum owing by
Lessee hereunder.
(x) To seek any equitable relief available to Lessor,
including, without limitation, the right of specific performance.
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 the covenants and agreements of Lessee contained in
this Lease, and no delay or omission of Lessor to exercise any right or power
accruing upon the occurrence of any Event of Default shall impair any other or
subsequent Event of Default or impair any rights or remedies consequent thereto.
Every power and remedy given by this Section or by law to Lessor may be
exercised from time to time, and as often as may be deemed expedient, by Lessor,
subject at all times to Lessor's right in its sole judgment to discontinue any
work commenced by Lessor or change any course of action undertaken by Lessor.
If Lessee shall fail to observe or perform any of its obligations
under this Lease or in the event of an emergency, then, without waiving any
Event of Default which may result from such failure or emergency, Lessor may,
but without any obligation to do so, take all actions, including,
38
without limitation, entry upon any or all of the Properties to perform Lessee's
obligations, immediately and without notice in the case of an emergency and upon
five days written notice to Lessee in all other cases. All expenses incurred by
Lessor in connection with performing such obligations, including, without
limitation, reasonable attorneys' fees and expenses, together with interest at
the Default Rate from the date any such expenses were incurred by Lessor until
the date of payment by Lessee, shall constitute Additional Rental and shall be
paid by Lessee to Lessor upon demand.
24. LIENS; MORTGAGES, SUBORDINATION, NONDISTURBANCE AND ATTORNMENT.
Lessor's interest in this Lease and/or any of the Properties shall not be
subordinate to any liens or encumbrances placed upon any of the Properties by or
resulting from any act of Lessee, and nothing herein contained shall be
construed to require such subordination by Lessor. Lessee shall keep the
Properties free from any liens for work performed, materials furnished or
obligations incurred by Lessee. NOTICE IS HEREBY GIVEN THAT LESSEE IS NOT
AUTHORIZED TO PLACE OR ALLOW TO BE PLACED ANY LIEN, MORTGAGE, DEED OF TRUST,
SECURITY INTEREST OR ENCUMBRANCE OF ANY KIND UPON ALL OR ANY PART OF ANY OF THE
PROPERTIES OR LESSEE'S LEASEHOLD INTEREST THEREIN, AND ANY SUCH PURPORTED
TRANSACTION WHICH IS NOT APPROVED BY LESSOR SHALL BE VOID. FURTHERMORE, ANY SUCH
PURPORTED TRANSACTION SHALL BE DEEMED A TORTIOUS INTERFERENCE WITH LESSOR'S
RELATIONSHIP WITH LESSEE AND LESSOR'S INTEREST IN THE PROPERTIES.
This Lease at all times shall automatically be subordinate to the
Mortgages and to the lien of any and all ground leases, mortgages, trust deeds
and deeds to secure debt now or hereafter placed upon any of the Properties by
Lessor, and Lessee covenants and agrees to execute and deliver, upon demand,
such further instruments subordinating this Lease to the lien of the Mortgages
and any or all such ground leases, mortgages, trust deeds or deeds to secure
debt as shall be desired by Lessor, or any present or proposed mortgagees or
lenders under trust deeds or deeds to secure debt, upon the condition that
Lessee shall have the right to remain in possession of the Properties under the
terms of this Lease, notwithstanding any default in the Mortgages or any or all
such ground leases, mortgages, trust deeds or deeds to secure debt or after
foreclosure of any or all such Mortgages, mortgages, trust deeds or deeds to
secure debt or termination of any or all such ground leases, so long as no Event
of Default has occurred and is continuing.
If any landlord, mortgagee, receiver, Lender or other secured party
elects to have this Lease and the interest of Lessee hereunder be superior to
any of the Mortgages or any such ground lease, mortgage, trust deed or deed to
secure debt and evidences such election by notice given to Lessee, then this
Lease and the interest of Lessee hereunder shall be deemed superior to any such
Mortgage, ground lease, mortgage, trust deed or deed to secure debt, whether
this Lease was executed before or after such Mortgage, ground lease, mortgage,
trust deed or deed to secure debt and in that event such landlord, mortgagee,
receiver, Lender or other secured party shall have the same rights with respect
to this Lease as if it had been executed and delivered prior to the execution
and delivery of such Mortgage, ground lease, mortgage, trust deed or deed to
secure debt and had been assigned to such landlord, mortgagee, receiver, Lender
or other secured party.
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Although the foregoing provisions shall be self-operative and no
future instrument of subordination or non-disturbance shall be required, upon
request by Lessor, Lessee shall execute and deliver whatever instruments may be
reasonably required for such purposes within 10 days after demand.
In the event any purchaser or assignee of Lender at a foreclosure
sale acquires title to any of the Properties, or in the event Lender or any
assignee otherwise succeeds to the rights of Lessor as landlord under this
Lease, Lessee shall attorn to Lender or such purchaser or assignee, as the case
may be (a "Successor Lessor"), and recognize the Successor Lessor as lessor
under this Lease, and this Lease shall continue in full force and effect as a
direct lease between the Successor Lessor and Lessee, provided that the
Successor Lessor shall only be liable for any obligations of the lessor under
this Lease which accrue after the date that such Successor Lessor acquires
title. The foregoing provision shall be self operative and effective without the
execution of any further instruments.
25. ESTOPPEL CERTIFICATE. At any time, and from time to time, Lessee
shall, promptly and in no event later than 15 days after a request from Lessor
or Lender, execute, acknowledge and deliver to Lessor or Lender a certificate in
the form supplied by Lessor, Lender or any present or proposed mortgagee or
purchaser designated by Lessor, certifying: (i) that Lessee has accepted the
Properties (or, if Lessee has not done so, that Lessee has not accepted the
Properties, and specifying the reasons therefor); (ii) that this Lease is in
full force and effect and has not been modified (or if modified, setting forth
all modifications), or, if this Lease is not in full force and effect, the
certificate shall so specify the reasons therefor; (iii) the commencement and
expiration dates of the Lease Term, including the terms of any extension options
of Lessee; (iv) the date to which the rentals have been paid under this Lease
and the amount thereof then payable; (v) whether there are then any existing
defaults by Lessor in the performance of its obligations under this Lease known
to Lessee, and, if there are any such known defaults, specifying the nature and
extent thereof; (vi) that no notice has been received by Lessee of any default
under this Lease which has not been cured, except as to defaults specified in
the certificate; (vii) the capacity of the person executing such certificate,
and that such person is duly authorized to execute the same on behalf of Lessee;
(viii) that neither Lessor nor Lender has actual involvement in the management
or control of decision making related to the operational aspects or the
day-to-day operations of the Properties; and (ix) any other information
reasonably requested by Lessor, Lender or such present or proposed mortgagee or
purchaser.
26. ASSIGNMENT; SUBLETTING. A. Lessor shall have the right to sell,
convey or mortgage all, but not less than all, of the Properties or to assign
its right, title and interest as Lessor under this Lease in whole, but not in
part; provided, however, the prohibition on Lessor's right to sell, convey or
mortgage less than all of the Properties shall not restrict Lessor's right to
convey Properties to Lessee pursuant to the provisions of Sections 21.B,
23.A(ix), 57 or 58 hereof. In the event of any such sale or assignment other
than a security assignment, provided Lessee receives written notice that such
purchaser or assignee has assumed all of Lessor's obligations under this Lease,
Lessee shall attorn to such purchaser or assignee and Lessor shall be relieved,
from and after the date of such transfer or conveyance, of liability for the
performance of any obligation of Lessor contained herein, except for obligations
or liabilities accrued prior to such assignment or sale.
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B. Lessee acknowledges that Lessor has relied both on the business
experience and creditworthiness of Lessee and upon the particular purposes for
which Lessee intends to use the Properties in entering into this Lease. Without
the prior written consent of Lessor and except as provided below: (i) Lessee
shall not assign, transfer or convey this Lease or any interest therein, whether
by operation of law or otherwise; (ii) no Subject Transfer shall occur; (iii) no
interest in Lessee or any of the Guarantors shall be pledged, encumbered,
hypothecated or assigned as collateral for any obligation of any of the Lessee
Entities; and (iv) Lessee shall not sublet all or any part of any of the
Properties. It is expressly agreed that Lessor may withhold or condition such
consent based upon such matters as Lessor may in its reasonable discretion
determine, including, without limitation, the experience and creditworthiness of
any assignee, the assumption by any assignee of all of Lessee's obligations
hereunder by undertakings enforceable by Lessor, the transfer to any assignee of
all necessary licenses and franchises to continue operating the Properties for
the purposes herein provided, receipt of such representations and warranties
from any assignee as Lessor may request, including such matters as its
organization, existence, good standing and finances and other matters, whether
or not similar in kind. At the time of any assignment of this Lease which is
approved by Lessor, the assignee shall assume all of the obligations of Lessee
under this Lease pursuant to Lessor's standard form of assumption agreement. No
such assignment nor any subletting of any of the Properties shall relieve Lessee
of its obligations respecting this Lease or Guarantors of any of their
obligations respecting the Guaranty. Any rentals owing under a sublease which
are in excess of the rentals owing hereunder may be retained by Lessee unless an
Event of Default has occurred, in which case, Lessor shall be entitled to
receive such excess rentals applicable to the period during which such Event of
Default is continuing. Any assignment, transfer, conveyance, pledge, mortgage or
subletting in violation of this Section shall be voidable at the sole option of
Lessor.
C. Notwithstanding the provisions of Section 26.B, Lessor's consent
to a Subject Transfer shall not be required if each of the following conditions
are satisfied:
(i) no Event of Default shall have occurred and be
continuing under this Lease as of the date on which Lessee gives the
Subject Transfer Notice (as hereinafter defined) and as of the date
on which such Subject Transfer is consummated;
(ii) after giving effect to such Subject Transfer,
whether as a single transaction or as a series of transactions, the
Lessee Entities, including any surviving entity as a result of such
Subject Transfer and/or successor of Lessee or any of the
Guarantors, shall have a consolidated net worth determined in
accordance with GAAP of not less than the sum of (1) $29,690,500.00,
plus (2) fifty (50%) percent of Net Income, if positive, for each
fiscal quarter of the Lessee Entities ending after the Effective
Date (i.e., exclusive of any negative Net Income for any such fiscal
quarter) determined on a cumulative basis subsequent to the
Effective Date, plus (3) seventy-five (75%) percent of the proceeds
of any issuance of equity securities of any of the Lessee Entities
or other contributions to the capital of any of the Lessee Entities
subsequent to the Effective Date (the "Net Worth Condition");
(iii) Lessee and Guarantors, including any surviving
entity as a result of such Subject Transfer and/or successor of
Lessee or any of the Guarantors, shall not be released from any of
their respective obligations under this Lease and the Guaranty, and
any such surviving entity or successor entity, as applicable, has
assumed in writing or by operation
41
of law (provided Lessor has received a satisfactory opinion of
counsel confirming that such assumption will occur by operation of
law) all obligations of Lessee under this Lease or Guarantors under
the Guaranty, as applicable;
(iv) after giving effect to such Subject Transfer,
whether as a single transaction or as a series of transactions, the
Lessee Entities shall have a Corporate Fixed Charge Coverage Ratio
(as hereinafter defined) determined as of the end of Lessee's most
recently closed fiscal quarter on a proforma basis after giving
effect to such Subject Transfer of at least equal to 1.50:1 (the
"Corporate Fixed Charge Coverage Ratio Condition")
(v) after such Subject Transfer, the Properties will be
operated as a Permitted Facility or such other nationally or
regionally recognized casual dining concepts reasonably acceptable
to Lessor;
(vi) the Lessee Entities, including any surviving entity
as a result of such Subject Transfer and/or successor of Lessee or
any of the Guarantors, shall have at least 5 years' experience
operating a multi-unit casual dining restaurant concept with the
same or greater number of units as are operated by the Lessee
Entities immediately prior to the consummation of such Subject
Transfer;
(vii) if and to the extent that the loans contemplated
by the Loan Documents have been subject to a Securitization, Lender
shall have received a notice or confirmation of the rating agencies
which have issued ratings in connection with such Securitization
that such Subject Transfer will not cause any of such rating
agencies to downgrade, modify, withdraw or qualify any of such
ratings (the "Rating Agency Condition"); and
(viii) Lessee shall have delivered to Lessor a
certification that all of the conditions to such Subject Transfer
set forth in this Section 26.C have been satisfied.
Notwithstanding the foregoing, in the event that Lessee is unable to
satisfy the Net Worth Condition, the Corporate Fixed Charge Coverage Ratio
Condition and/or the Rating Agency Condition, such conditions shall be deemed
satisfied if Lessee shall (1) pay to Lessor the Subject Transfer Rent Prepayment
Amount (as hereinafter defined), and (2) pay to Lessor the Prepayment Charges
payable by Lessor to Lender as a result of the payment of the Subject Transfer
Rent Prepayment Amount. Upon Lessee's payment of the Subject Transfer Rent
Prepayment Amount and Prepayment Charges as contemplated by the preceding
sentence, Lessor agrees that the Base Monthly Rental beginning with the calendar
month immediately following the month in which such payment is made (or, if such
payment is made on the first day of a calendar month, beginning with the
calendar month in which such payment is made) shall be equal to the Base Monthly
Rental then in effect reduced by the Subject Transfer Rent Reduction Amount (as
hereinafter defined)
For purposes of this Section 26.C, the following terms shall be
defined as set forth below:
"Capital Lease" shall mean all leases of any
property, whether real, personal or mixed, by Lessee or
any of the other Lessee Entities, as applicable, which
leases would, in conformity with GAAP, be required to be
accounted for as
42
a capital lease on the balance sheet of Lessee. The term
"Capital Lease" shall not include any operating lease.
"Corporate Fixed Charge Coverage Ratio"
shall mean with respect to the twelve month period of
time immediately preceding the date of determination,
the ratio calculated for such period of time, each as
determined in accordance with GAAP, of (a) the sum of
Net Income, Depreciation and Amortization, Interest
Expense and Operating Lease Expense, minus income taxes
or charges equivalent to income taxes allocable to the
period of determination, to (b) the sum of Operating
Lease Expense, scheduled principal payments of long term
Debt, scheduled maturities of all Capital Leases and
Interest Expense (excluding non-cash interest expense
and amortization of non-cash financing expenses).
"Debt" shall mean with respect to Lessee and
the other Lessee Entities, collectively, and for the
period of determination (i) indebtedness for borrowed
money, (ii) obligations evidenced by bonds, indentures,
notes or similar instruments, (iii) obligations to pay
the deferred purchase price of property or services,
(iv) obligations under leases which should be, in
accordance with GAAP, recorded as Capital Leases, and
(v) obligations under direct or indirect guarantees in
respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in
clauses (i) through (iv) above.
"Depreciation and Amortization" shall mean
the depreciation and amortization accruing during any
period of determination with respect to Lessee and the
other Lessee Entities, collectively, as determined in
accordance with GAAP.
"Interest Expense" shall mean for any period
of determination, the sum of all interest accrued or
which should be accrued in respect of all Debt of Lessee
and the other Lessee Entities, collectively, as
determined in accordance with GAAP.
"Net Income" shall mean with respect to the
period of determination, the net income or net loss of
Lessee and the other Lessee Entities, collectively. In
determining the amount of Net Income, (i) adjustments
shall be made for nonrecurring gains and losses or
non-cash items allocable to the period of determination,
(ii) deductions shall be made for, among other things,
Depreciation and Amortization, Interest Expense,
Operating Lease Expense and actual corporate overhead
expense allocable to the period of determination, and
(iii) no deductions shall be made for income taxes or
charges equivalent to income taxes allocable to the
period of determination, as determined in accordance
with GAAP.
"Operating Lease Expense" shall mean the sum
of all payments and expenses incurred by Lessee and the
other Lessee Entities, collectively, under any
43
operating leases during the period of determination, as
determined in accordance with GAAP.
"Subject Transfer FCCR Shortfall Percentage"
means the percentage represented by (x) 1 minus (y) a
fraction, the numerator of which shall be the Aggregate
Fixed Charge Coverage Ratio for the twelve month period
of time immediately preceding the end of the fiscal
quarter of Lessee which closed prior to the date on
which Lessee gives the Subject Transfer Notice, and the
denominator of which shall be 3:1.
"Subject Transfer Rent Prepayment Amount"
means the present value, discounted on a monthly basis
at 8.99% per annum, of the Subject Transfer Rent
Reduction Amount for each month beginning with the
calendar month immediately following the month in which
the Subject Transfer Rent Prepayment Amount is paid (or,
if the Subject Transfer Rent Prepayment Amount is paid
on the first day of a calendar month, beginning with the
calendar month in which the Subject Transfer Rent
Prepayment Amount is paid) and ending with the calendar
month of January, 2022, inclusive.
"Subject Transfer Rent Reduction Amount" the
product of (x) the Base Monthly Rental for the last
month of the fiscal quarter of Lessee which ended prior
to the date on which Lessee gives Lessor the Subject
Transfer Notice and (y) the Subject Transfer FCCR
Shortfall Percentage. For purposes of illustration and
not limitation, if (i) Lessee's Aggregate Fixed Charge
Coverage Ratio for the fiscal quarter ending June 30,
2010 was 2:1 (which results in a Subject Transfer FCCR
Shortfall Percentage of 33%), (ii) Lessee paid the
Subject Transfer Rent Prepayment Amount on August 15,
2010, and (iii) the Base Monthly Rental for June, 2010
was $100, then the Base Monthly Rental payment beginning
on September 1, 2010 shall be equal to the Base Monthly
Rental for August, 2010 reduced by the sum of $33.33.
Lessee shall notify Lessor and Lender at least 30 days but not more
than 90 days prior to the completion of any Subject Transfer (each, a "Subject
Transfer Notice"). Lessee shall provide Lessor and Lender with information
reasonably sufficient to enable Lessor and Lender to determine that Lessee has
satisfied the conditions to any Subject Transfer, including, without limitation,
such financial information as Lessor and Lender may reasonably require to enable
them to determine that the Net Worth Condition, Corporate Fixed Charge Coverage
Ratio Condition and/or other requirements set forth in this Section 26.C have
been satisfied, or will be satisfied simultaneously with the completion of the
Subject Transfer. In addition, to the extent that the loans contemplated by the
Loan Documents have been subject to a Securitization, Lessee agrees to cooperate
in good faith in connection with providing such information as the rating
agencies may reasonably require to evaluate any such Subject Transfer.
D. Notwithstanding the provisions of Section 26.B, Lessee shall have
the right to sublease any of the Properties, without the prior written consent
of Lessor or Lender, to any Permitted Sublessee if each of the following
conditions are satisfied:
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(1) no Event of Default shall have occurred and be
continuing under this Lease as of the effective date of the
applicable sublease;
(2) any such sublease shall be subordinate to this Lease
and the Mortgage corresponding to the Property to which such
sublease relates;
(3) Lessee shall remain liable under this Lease
notwithstanding such subleases and Guarantors shall remain liable
under the Guaranty notwithstanding such subleases;
(4) the Properties subject to such subleases shall be
used as Permitted Facilities and shall otherwise be operated and
maintained in accordance with the terms and conditions of this
Lease; and
(5) the form of sublease is reasonably acceptable to
Lessor and Lender.
Within 10 days after the execution of each sublease, Lessee shall
provide Lessor and Lender with a notice of such sublease and a photocopy of the
fully executed sublease.
27. OPTION TO EXTEND. Lessee shall have the option to continue this
Lease in effect for five additional successive periods of five years each,
provided that, at the time of exercise of such option or at the expiration of
the Lease Term or, if applicable, the preceding extension of the Lease Term, no
Event of Default shall have occurred and be continuing under this Lease. If
Lessee exercises such option, this Lease shall continue for the applicable
period in accordance with the terms and provisions of this Lease then in effect,
including, without limitation, adjustments in the Base Annual Rental during each
extension term in accordance with the provisions of Section 5.B.
Lessee may only exercise the first extension option by giving notice
to Lessor of Lessee's intention to do so not later than June 30, 2020. If the
first extension option is exercised by Lessee, Lessee may only exercise the
second extension option by giving notice to Lessor of Lessee's intention to do
so not later than April 30, 2026. If the first two extension options are
exercised, Lessee may only exercise the third extension option by giving notice
to Lessor of Lessee's intention to do so not later than April 30, 2031. If the
first three extension options are exercised, Lessee may only exercise the fourth
extension option by giving notice to Lessor of Lessee's intention to do so not
later than April 30, 2036. If the first four extension options are exercised,
Lessee may only exercise the fifth extension option by giving notice to Lessor
of Lessee's intention to do so not later than April 30, 2041.
Notwithstanding the foregoing, Lessee's failure to deliver notice of
the exercise of its options under this Section by the applicable outside dates
set forth above shall not terminate the applicable option unless and until
Lessor shall, following the applicable outside date, give written notice of the
applicable option to Lessee, and Lessee shall fail to exercise the applicable
option within thirty (30) days after such notice is given.
28. STATE SPECIFIC PROVISIONS. The provisions and/or remedies which
are set forth on Schedule II shall be deemed a part of and included within the
terms and conditions of this Lease.
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29. NOTICES. All notices, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this Lease shall
be in writing and given by (i) hand delivery, (ii) facsimile, (iii) express
overnight delivery service or (iv) certified or registered mail, return receipt
requested, and shall be deemed to have been delivered upon (a) receipt or
refusal of the intended recipient to accept receipt, if hand delivered, (b)
electronic confirmation of transmission, if delivered by facsimile, (c) the next
Business Day, if delivered by express overnight delivery service, or (d) the
third Business Day following the day of deposit of such notice with the United
States Postal Service, if sent by certified or registered mail, return receipt
requested. Notices shall be provided to the parties and addresses (or facsimile
numbers, as applicable) specified below:
If to Lessee: Doe Family II LLC
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx Xxxxx Carens &
XxXxxxxxx, A
Limited Liability Partnership
00 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx,
Esquire
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Lessor: Double 9 Property III LLC
c/o U.S. Realty Advisors, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or such other person as either party may from time to
time hereafter specify to the other party in a notice delivered in the manner
provided above. No such notices, consents, approvals or other communications
shall be valid unless Lender receives a duplicate original thereof at the
following address:
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Xxxxxx X. Xxxxx, Esq.
Executive Vice President, General
Counsel and Secretary
GE Capital Franchise Finance
Corporation
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or such other person as Lender may from time to time
specify to Lessor and Lessee in a notice delivered in the manner provided above.
30. HOLDING OVER. If Lessee remains in possession of any of the
Properties after the expiration of the term hereof, Lessee, at Lessor's option
and within Lessor's sole discretion, may be deemed a tenant on a month-to-month
basis and shall continue to pay rentals and other sums in the amounts herein
provided, except that the Base Monthly Rental shall be automatically doubled,
and to comply with all the terms of this Lease; provided that nothing herein nor
the acceptance of rent by Lessor shall be deemed a consent to such holding over.
Lessee shall defend, indemnify, protect and hold the Indemnified Parties
harmless from and against any and all Losses resulting from Lessee's failure to
surrender possession upon the expiration of the Lease Term, including, without
limitation, any claims made by any succeeding lessee. The terms of this Section
30 shall survive the expiration of the Lease Term.
31. RIGHT OF FIRST OFFER TO PURCHASE PROPERTIES. If, during the
Lease Term, Lessor desires to sell its interest in the Properties, as a result
of a third-party offer or expression of interest from a third party (which may
be solicited by Lessor and with no requirement that an offer actually be made by
such third party), then, provided no Event of Default has occurred and is
continuing, Lessor shall give Lessee the right to purchase such interest (the
"Interest") for a price and on terms and conditions, determined by Lessor and
set forth in a notice (the "ROFO Notice") given to Lessee. Lessee shall have
thirty (30) days to elect in writing to acquire such Interest at such price and
on such terms and conditions. Lessee's silence shall be deemed a rejection of
its right to acquire such Interest. Any such election by Lessee shall only be
effective if accompanied by Lessee's payment to Lessor of a cash down payment
equal to 10% of such price. If Lessee timely and properly elects to acquire such
Interest, the closing shall take place within one hundred and twenty (120) days
after the ROFO Notice is given to Lessee. The balance of the purchase price
shall be paid in cash at closing. If Lessee does not timely elect to acquire
such Interest, Lessor shall be free to sell the Interest to any other Person
within six (6) months of Lessee's rejection or deemed rejection without being
required to comply again with the foregoing provisions of this Section, provided
that, if Lessor intends to sell the Interest (i) after such six (6) month period
or (ii) within such six (6) month period at a price less than 95% of the price
described in the ROFO Notice or on economic terms more favorable to a purchaser
than those set forth in the ROFO Notice, Lessor shall give Lessee written
notice, setting forth the applicable purchase price and terms and conditions,
and Lessee shall have thirty (30) days to elect in writing to purchase the
Interest at such purchase price and on such terms and conditions. The right of
first offer granted by this Section shall not survive the expiration or earlier
termination of this Lease or the purchase of the Properties by a third party
after Lessee's failure to exercise such right or Lessee's waiver thereof.
Furthermore, the right of first offer granted by
47
this Section shall not apply to a foreclosure of any of the Mortgages or the
delivery to Lender of a deed-in-lieu of foreclosure and shall not survive any
such foreclosure or delivery of a deed-in-lieu of foreclosure. Upon the
termination of this right of first offer, Lessee shall execute such instruments
as may be reasonably required by Lessor to provide constructive notice of the
termination thereof.
32. REMOVAL OF PERSONALTY. At the expiration of the Lease Term, and
if Lessee is not then in breach hereof, Lessee may remove all Personalty from
the Properties. Lessee shall repair any damage caused by such removal and shall
leave the Properties broom clean and in good and working condition and repair
inside and out, normal wear and tear excepted. Any property of Lessee left on
the Properties on the tenth day following the expiration of the Lease Term
shall, at Lessor's option, automatically and immediately become the property of
Lessor.
33. FINANCIAL STATEMENTS. Within 45 days after the end of each
fiscal quarter of Lessee, Lessee shall deliver to Lessor and Lender (i) complete
financial statements of Guarantors including a balance sheet, profit and loss
statement, statement of cash flows and all other related schedules for the
fiscal period then ended; and (ii) income statements for the business at each of
the Properties. Within 120 days after the end of each fiscal year of Lessee,
Lessee shall deliver to Lessor and Lender (i) complete financial statements of
Lessee and Guarantors including a balance sheet, profit and loss statement,
statement of cash flows and all other related schedules for the fiscal period
then ended; and (ii) income statements for the business at each of the
Properties. All such financial statements shall be prepared in accordance with
GAAP and shall be certified to be accurate and complete by Lessee or Guarantors,
as applicable (or the Treasurer or other appropriate officer of Lessee or
Guarantors, as applicable). Lessee understands that Lessor and Lender will rely
upon such financial statements and Lessee represents that such reliance is
reasonable. In the event that Lessee's property and business at the Properties
is ordinarily consolidated with other business for financial statement purposes,
such financial statements shall be prepared on a consolidated basis showing
separately the sales, profits and losses, assets and liabilities pertaining to
each of the Properties with the basis for allocation of overhead of other
charges being clearly set forth. The financial statements delivered to Lessor
and Lender need not be audited, but Lessee shall deliver to Lessor and Lender
copies of any audited financial statements of Lessee or Guarantors which may be
prepared, as soon as they are available.
34. FORCE MAJEURE. Any prevention, delay or stoppage due to strikes,
lockouts, acts of God, enemy or hostile governmental action, civil commotion,
fire or other casualty beyond the control of the party obligated to perform
shall excuse the performance by such party for a period equal to any such
prevention, delay or stoppage, except the obligations imposed with regard to
rental and other monies to be paid by Lessee pursuant to this Lease and any
indemnification obligations imposed upon Lessee under this Lease.
35. TIME IS OF THE ESSENCE. Time is of the essence with respect to
each and every provision of this Lease in which time is a factor.
36. LIABILITY. A. Notwithstanding anything to the contrary provided
in this Lease, it is specifically understood and agreed, such agreement being a
primary consideration for the execution of this Lease by Lessor, that (i) there
shall be absolutely no personal liability on the
48
part of Lessor, its successors or assigns and the trustees, members, partners,
shareholders, officers, directors, employees and agents of Lessor and its
successors or assigns, to Lessee with respect to any of the terms, covenants and
conditions of this Lease, (ii) Lessee waives all claims, demands and causes of
action against the trustees, members, partners, shareholders, officers,
directors, employees and agents of Lessor and its successors or assigns in the
event of any breach by Lessor of any of the terms, covenants and conditions of
this Lease to be performed by Lessor, and (iii) Lessee shall look solely to the
Properties for the satisfaction of each and every remedy of Lessee in the event
of any breach by Lessor of any of the terms, covenants and conditions of this
Lease to be performed by Lessor, or any other matter in connection with this
Lease or the Properties, such exculpation of liability to be absolute and
without any exception whatsoever.
B. Notwithstanding anything to the contrary provided in this Lease,
it is specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Lessee, that (i) there shall be
absolutely no personal liability on the part of any members, partners,
shareholders, officers, directors and employees of Lessee to Lessor with respect
to any of the terms, covenants and conditions of this Lease, and (ii) Lessor
waives all claims, demands and causes of action against the members, partners,
shareholders, officers, directors and employees of Lessee in the event of any
breach by Lessee of any of the terms, covenants and conditions of this Lease to
be performed by Lessee, such exculpation of liability to be absolute and without
any exception whatsoever.
37. CONSENT OF LESSOR. (a) Unless specified otherwise herein,
Lessor's consent to any request of Lessee may be conditioned or withheld in
Lessor's sole discretion. Lessor shall have no liability for damages resulting
from Lessor's failure to give any consent, approval or instruction reserved to
Lessor, Lessee's sole remedy in any such event being an action for injunctive
relief.
(b) It is understood and agreed that to the extent Lessor is
required to obtain the consent, approval, agreement or waiver of Lender with
respect to a matter for which Lessor's approval has been requested under this
Lease, Lessor shall in no event be deemed to have unreasonably withheld Lessor's
consent, approval, agreement or waiver thereof if Lender shall not have given
its approval if required.
38. WAIVER AND AMENDMENT. No provision of this Lease shall be deemed
waived or amended except by a written instrument unambiguously setting forth the
matter waived or amended and signed by the party against which enforcement of
such waiver or amendment is sought. Waiver of any matter shall not be deemed a
waiver of the same or any other matter on any future occasion. No acceptance by
Lessor of an amount less than the monthly rent and other payments stipulated to
be due under this Lease shall be deemed to be other than a payment on account of
the earliest such rent or other payments then due or in arrears nor shall any
endorsement or statement on any check or letter accompanying any such payment be
deemed a waiver of Lessor's right to collect any unpaid amounts or an accord and
satisfaction.
39. SUCCESSORS BOUND. Except as otherwise specifically provided
herein, the terms, covenants and conditions contained in this Lease shall bind
and inure to the benefit of the respective heirs, successors, executors,
administrators and assigns of each of the parties hereto.
49
40. NO MERGER. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not result in a merger of
Lessor's and Lessee's estates, and shall, at the option of Lessor, either
terminate any or all existing subleases or subtenancies, or operate as an
assignment to Lessor of any or all of such subleases or subtenancies.
41. CAPTIONS. Captions are used throughout this Lease for
convenience of reference only and shall not be considered in any manner in the
construction or interpretation hereof.
42. SEVERABILITY. The provisions of this Lease shall be deemed
severable. If any part of this Lease shall be held unenforceable by any court of
competent jurisdiction, the remainder shall remain in full force and effect, and
such unenforceable provision shall be reformed by such court so as to give
maximum legal effect to the intention of the parties as expressed therein.
43. CHARACTERIZATION. A. It is the intent of the parties hereto that
the business relationship created by this Lease and any related documents is
solely that of a long-term commercial lease between landlord and tenant and has
been entered into by both parties in reliance upon the economic and legal
bargains contained herein. None of the agreements contained herein, is intended,
nor shall the same be deemed or construed, to create a partnership between
Lessor and Lessee, to make them joint venturers, to make Lessee an agent, legal
representative, partner, subsidiary or employee of Lessor, nor to make Lessor in
any way responsible for the debts, obligations or losses of Lessee.
X. Xxxxxx and Lessee acknowledge and warrant to each other that each
has been represented by independent counsel and has executed this Lease after
being fully advised by said counsel as to its effect and significance. This
Lease shall be interpreted and construed in a fair and impartial manner without
regard to such factors as the party which prepared the instrument, the relative
bargaining powers of the parties or the domicile of any party. Whenever in this
Lease any words of obligation or duty are used, such words or expressions shall
have the same force and effect as though made in the form of a covenant.
44. EASEMENTS. During the Lease Term, Lessor agrees to grant such
utility, access or other similar easements on, over, under and above any of the
Properties as Lessee may request, provided that such easements are reasonably
required for the operation of such Property as a Permitted Facility and will not
decrease the value of such Property.
45. BANKRUPTCY. A. As a material inducement to Lessor executing this
Lease, Lessee acknowledges and agrees that Lessor is relying upon (i) the
financial condition and specific operating experience of Lessee and Lessee's
obligation to use each of the Properties specifically in accordance with
system-wide requirements imposed from time to time on Permitted Facilities, (ii)
Lessee's timely performance of all of its obligations under this Lease
notwithstanding the entry of an order for relief under the Code for Lessee and
(iii) all defaults under this Lease as to all Properties being cured promptly
and this Lease being assumed within 60 days of any order for relief entered
under the Code for Lessee, or this Lease being rejected within such 60 day
period and the Properties surrendered to Lessor.
Accordingly, in consideration of the mutual covenants contained in
this Lease and for other good and valuable consideration, Lessee hereby agrees
that:
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(i) All obligations that accrue under this Lease
(including the obligation to pay rent), from and after the date that
an Action is commenced shall be timely performed exactly as provided
in this Lease and any failure to so perform shall be harmful and
prejudicial to Lessor;
(ii) Any and all obligations under this Lease that
become due from and after the date that an Action is commenced and
that are not paid as required by this Lease shall, in the amount of
such rents, constitute administrative expense claims allowable under
the Code with priority of payment at least equal to that of any
other actual and necessary expenses incurred after the commencement
of the Action;
(iii) Any extension of the time period within which
Lessee may assume or reject this Lease without an obligation to
cause all obligations coming due under this Lease from and after the
date that an Action is commenced to be performed as and when
required under this Lease shall be harmful and prejudicial to
Lessor;
(iv) Any time period designated as the period within
which Lessee must cure all defaults and compensate Lessor for all
pecuniary losses which extends beyond the date of assumption of this
Lease shall be harmful and prejudicial to Lessor;
(v) Any assignment of this Lease must result in all
terms and conditions of this Lease being assumed by the assignee
without alteration or amendment, and any assignment which results in
an amendment or alteration of the terms and conditions of this Lease
without the express written consent of Lessor shall be harmful and
prejudicial to Lessor;
(vi) Any proposed assignment of this Lease to an
assignee: (a) that will not use the Properties specifically in
accordance with a franchise, license and/or area development
agreement with the franchisor of Permitted Facilities, (b) that does
not possess financial condition, operating performance and
experience characteristics equal to or better than the financial
condition, operating performance and experience of Lessee as of the
Effective Date, or (c) that does not provide guarantors of the Lease
obligations with financial condition equal to or better than the
financial condition of Guarantors as of the Effective Date, shall be
harmful and prejudicial to Lessor;
(vii) The rejection (or deemed rejection) of this Lease
for any reason whatsoever shall constitute cause for immediate
relief from the automatic stay provisions of the Code, and Lessee
stipulates that such automatic stay shall be lifted immediately and
possession of the Properties will be delivered to Lessor immediately
without the necessity of any further action by Lessor; and
(viii) This Lease shall at all times be treated as
consistent with the specific characterizations set forth in Section
3 of this Lease, and assumption or rejection of this Lease shall be
(a) in its entirety, (b) for all of the Properties, and (c) in
strict accordance with the specific terms and conditions of this
Lease.
B. No provision of this Lease shall be deemed a waiver of Lessor's
rights or remedies under the Code or applicable law to oppose any assumption
and/or assignment of this Lease, to require timely performance of Lessee's
obligations under this Lease, or to regain
51
possession of the Properties as a result of the failure of Lessee to comply with
the terms and conditions of this Lease or the Code.
C. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Lessee to or on behalf of Lessor under this Lease, whether or
not expressly denominated as such, shall constitute "rent" for the purposes of
the Code.
D. For purposes of this Section addressing the rights and
obligations of Lessor and Lessee in the event that an Action is commenced, the
term "Lessee" shall include Lessee's successor in bankruptcy, whether a trustee,
Lessee as debtor in possession or other responsible person.
46. NO OFFER. No contractual or other rights shall exist between
Lessor and Lessee with respect to the Properties until both have executed and
delivered this Lease, notwithstanding that deposits may have been received by
Lessor and notwithstanding that Lessor may have delivered to Lessee an
unexecuted copy of this Lease. The submission of this Lease to Lessee shall be
for examination purposes only, and does not and shall not constitute a
reservation of or an option for Lessee to lease or otherwise create any interest
on the part of Lessee in the Properties.
47. OTHER DOCUMENTS. Each of the parties agrees to sign such other
and further documents as may be necessary or appropriate to carry out the
intentions expressed in this Lease.
48. ATTORNEYS' FEES. In the event of any judicial or other
adversarial proceeding between the parties concerning this Lease, to the extent
permitted by law, the prevailing party shall be entitled to recover all of its
reasonable attorneys' fees and other costs in addition to any other relief to
which it may be entitled. In addition, Lessor shall, upon demand, be entitled to
all attorneys' fees and all other costs incurred in the preparation and service
of any notice or demand hereunder, whether or not a legal action is subsequently
commenced. References in this Lease to Lessor's attorneys' fees and/or costs
shall mean both the fees and costs of independent counsel retained by Lessor
with respect to the matter and the fees and costs of Lessor's in-house counsel
incurred in connection with the matter.
49. ENTIRE AGREEMENT. This Lease and any other instruments or
agreements referred to herein, constitute the entire agreement between the
parties with respect to the subject matter hereof, and there are no other
representations, warranties or agreements except as herein provided. Without
limiting the foregoing, Lessee specifically acknowledges that neither Lessor nor
any agent, officer, employee or representative of Lessor has made any
representation or warranty regarding the projected profitability of the business
to be conducted on the Properties. Furthermore, Lessee acknowledges that Lessor
did not prepare or assist in the preparation of any of the projected figures
used by Lessee in analyzing the economic viability and feasibility of the
business to be conducted by Lessee at the Properties.
50. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW. Lessee
acknowledges that this Lease was partially negotiated in the State of Arizona,
this Lease was partially executed in the State of Arizona and delivered in the
State of Arizona, all payments under this Lease will be delivered in the State
of Arizona (unless otherwise directed by Lessor or its successors) and there
52
are substantial contacts between the parties and the transactions contemplated
herein and the State of Arizona. For purposes of any action or proceeding
arising out of this Lease, the parties hereto expressly submit to the
jurisdiction of all federal and state courts located in the State of Arizona.
Lessee and Lessor consent that they may be served with any process or paper in
accordance with the laws of the State of Arizona; provided, however, no such
service of process or paper shall be deemed delivered pursuant to Section 29
hereof if not actually received. Furthermore, Lessee and Lessor waive and agree
not to assert in any such action, suit or proceeding that they are not
personally subject to the jurisdiction of such courts, that the action, suit or
proceeding is brought in an inconvenient forum or that venue of the action, suit
or proceeding is improper. The creation of this Lease and the rights and
remedies of Lessor with respect to the Properties, as provided herein and by the
laws of the states in which the Properties are located, as applicable, shall be
governed by and construed in accordance with the internal laws of the states in
which the Properties are located, as applicable, without regard to principles of
conflicts of law. With respect to other provisions of this Lease, this Lease
shall be governed by the internal laws of the State of Arizona, without regard
to its principles of conflicts of law. Nothing contained in this Section shall
limit or restrict the right of Lessor or Lessee to commence any proceeding in
the federal or state courts located in the states in which the Properties are
located to the extent Lessor or Lessee deems such proceeding necessary or
advisable to exercise remedies available under this Lease.
51. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall be deemed an original.
52. MEMORANDUM OF MASTER LEASE. Concurrently with the execution of
this Lease, Lessor and Lessee are executing the Memorandum to be recorded in the
applicable real property records with respect to each of the Properties.
53. NO BROKERAGE. Lessor and Lessee represent and warrant to each
other that they have had no conversation or negotiations with any broker
concerning the leasing of the Properties. Each of Lessor and Lessee agrees to
protect, indemnify, save and keep harmless the other, against and from all
liabilities, claims, losses, costs, damages and expenses, including attorneys'
fees, arising out of, resulting from or in connection with their breach of the
foregoing warranty and representation. Lessee has been advised by Xxxxxxx Xxxxx
& Associates, Inc., whose fees shall be paid by Lessee.
54. WAIVER OF JURY TRIAL AND PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES. LESSOR AND LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO
ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM
BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH
RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE
RELATIONSHIP OF LESSOR AND LESSEE, LESSEE'S USE OR OCCUPANCY OF ANY OF THE
PROPERTIES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY
REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, LESSOR AND
53
LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE
OTHER PARTY AND ANY OF SUCH OTHER PARTY'S AFFILIATES, OFFICERS, DIRECTORS,
MEMBERS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL
ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY A
PARTY AGAINST THE OTHER PARTY OR ANY OF SUCH OTHER PARTY'S AFFILIATES, OFFICERS,
DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE OR ANY DOCUMENT
CONTEMPLATED HEREIN OR RELATED HERETO, EXCEPT THAT SUCH WAIVER ON THE PART OF
LESSOR SHALL NOT BE DEEMED TO LIMIT, REDUCE OR PRECLUDE IN ANY WAY LESSOR'S
REMEDIES PURSUANT TO SECTION 23 HEREOF. THE RECIPROCAL WAIVERS BY LESSOR AND
LESSEE OF ANY RIGHT EITHER MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL
ASPECT OF THEIR BARGAIN.
55. RELIANCE BY LENDER. Lessee acknowledges and agrees that Lender
may rely on all of the representations, warranties and covenants set forth in
this Lease, that Lender is an intended third-party beneficiary of such
representations, warranties and covenants and that Lender shall have all rights
and remedies available at law or in equity as a result of a breach of such
representations, warranties and covenants, including to the extent applicable,
the right of subrogation.
56. DOCUMENT REVIEW. In the event Lessee makes any request upon
Lessor requiring Lessor, Lender or the attorneys of Lessor or Lender to review
and/or prepare (or cause to be reviewed and/or prepared) any documents, plans,
specifications or other submissions in connection with or arising out of this
Lease, then Lessee shall reimburse Lessor or its designee promptly upon Lessor's
demand therefor for all reasonable out-of-pocket costs and expenses incurred by
Lessor in connection with such review and/or preparation plus a reasonable
processing and review fee.
57. SUBSTITUTION. A. Subject to the fulfillment of all of the
conditions set forth in the following subsection B, Lessee shall have the right
to deliver a rejectable offer to Lessor (each, a "Rejectable Substitution
Offer") to substitute a Substitute Property for a Property if:
(i) the terms of Section 21.B of this Lease require a
Rejectable Substitution Offer to be made (each, a
"Casualty/Condemnation Substitution"); or
(ii) the terms of Section 23.A(ix)(1) of this Lease
permit a Rejectable Substitution Offer to be made (each, a "FCCR
Substitution").
From and after the third anniversary of the Effective Date and
subject to the fulfillment of all of the conditions set forth in the following
subsection B, Lessee shall also have the right to deliver a Rejectable
Substitution Offer to substitute a Substitute Property for a Property if Lessee
determines for any reason to make a substitution (each, a "Discretionary
Substitution"); provided, however, that once Lessee has done
Casualty/Condemnation Substitutions,
54
Discretionary Substitutions and/or FCCR Substitutions for a total of two
Properties in the aggregate, Lessee shall no longer have the right to deliver a
Rejectable Substitution Offer with respect to a Discretionary Substitution.
Each Rejectable Substitution Offer shall identify the proposed
Substitute Property in reasonable detail and contain a certificate executed by a
duly authorized officer of Lessee pursuant to which Lessee shall certify that in
Lessee's good faith judgment such proposed Substitute Property satisfies as of
the date of such notice, or will satisfy as of the date of the closing of such
substitution, all of the applicable conditions to substitution set forth in this
Section 57. Lessee agrees to deliver to Lessor all of the diligence information
and materials contemplated by the provisions of Section 57.B of this Lease
within 30 days after the delivery to Lessor of a Rejectable Substitution Offer.
Lessor shall have 90 days from the delivery of a Rejectable
Substitution Offer notice satisfying the requirements of the preceding paragraph
to deliver to Lessee written notice of its election to either accept or reject
the Rejectable Substitution Offer. Lessor's failure to deliver such notice
within such time period shall be deemed to constitute Lessor's acceptance of the
Rejectable Substitution Offer. If the Mortgage corresponding to the Property to
be replaced is still outstanding, any rejection of the Rejectable Substitution
Offer by Lessor shall not be effective unless it is consented to in writing by
Lender. If Lessor accepts the Rejectable Substitution Offer or is deemed to have
accepted the Rejectable Substitution Offer or if Lender does not consent in
writing to any rejection of the Rejectable Substitution Offer by Lessor, then
Lessee shall complete such substitution, subject, however, to the satisfaction
of each of the applicable terms and conditions set forth in this Section 57.
If Lessor rejects the Rejectable Substitution Offer pursuant to the
previous paragraph for reasons other than that, in Lessor's reasonable judgment,
the proposed Substitute Property would not have satisfied the applicable
substitution conditions set forth in this Section 57, and such rejection is
consented to by Lender, then:
(X) if such rejected Rejectable Substitution Offer was
made with respect to a Casualty/Condemnation Substitution, the
provisions of the last paragraph of Section 21.B and the last
sentence of the second paragraph of Section 21.B shall be
applicable; and
(Y) if such rejected Rejectable Substitution Offer was
made with respect to a FCCR Substitution or a Discretionary
Substitution, this Lease shall terminate with respect to the
Property which Lessee proposed to replace on the next scheduled Base
Monthly Rental payment date (the "Early Substitution Termination
Date") provided Lessee has paid to Lessor all Base Annual Rental,
Additional Rental and all other sums and obligations then due and
payable under this Lease as of such Early Substitution Termination
Date. On the Early Substitution Termination Date, and provided
Lessee shall have paid to Lessor all Base Annual Rental, Additional
Rental and other sums and obligations then due and payable under
this Lease as of the Early Substitution Termination Date:
(i) the Base Annual Rental then in effect
shall be reduced by an amount equal to the product of
(x) the Applicable Rent Reduction Percentage for the
55
Property which Lessee proposed to replace, and (y) the
Base Annual Rental then in effect; and
(ii) all obligations of Lessor and Lessee
shall cease as of the Early Substitution Termination
Date with respect to such Property; provided, however,
Lessee's obligations to Lessor with respect to such
Property under any indemnification provisions of this
Lease with respect to such Property (including, without
limitation, Sections 16 and 19 of this Lease) and
Lessee's obligations to pay any sums (whether payable to
Lessor or a third party) accruing under this Lease with
respect to such Property prior to the Early Substitution
Termination Date shall survive the termination of this
Lease with respect to such Property or otherwise. This
Lease shall, however, continue in full force and effect
with respect to all other Properties.
B. The substitution of a Substitute Property for a Property pursuant
to the preceding subsection A shall be subject to the fulfillment of all of the
following terms and conditions:
(i) The Substitute Property must:
(1) be a Permitted Facility, in good
condition and repair, ordinary wear and tear excepted;
(2) have a Fixed Charge Coverage Ratio (with
the definitions of Section 8.A being deemed to be
modified, as contemplated by the following sentence to
provide for a calculation of an individual "Fixed Charge
Coverage Ratio" for the Substitute Property only) for
the FCCR Period of not less than the Fixed Charge
Coverage Ratio for the Property to be replaced for such
FCCR Period; provided that, with respect to each FCCR
Substitution, the Fixed Charge Coverage Ratio for the
Substitute Property for such FCCR Period must also be
high enough (after taking into account any other
substitutions for Properties which are being consummated
simultaneously therewith) to result in a cure of the
breach of the Aggregate Fixed Charge Coverage Ratio
requirement (it being understood and agreed that the
determination of the Fixed Charge Coverage Ratio for the
Substitute Property shall be based on an assumption that
the Operating Lease Expense for the Substitute Property
would be the same amount as the Operating Lease Expense
for the Property to be replaced, as determined in
accordance with the last sentence of this subitem (2)).
For purposes of this subitem (2), the definitions set
forth in Section 8.A of this Lease with respect to the
calculation of the Aggregate Fixed Charge Coverage Ratio
shall be deemed modified as applicable to provide for
the calculation of a Fixed Charge Coverage Ratio for
each Property on an individual basis rather than on an
aggregate basis with the other Properties. For purposes
of such calculation, the Operating Lease Expense with
respect to this Lease for each such Property shall equal
the product of (x) the Applicable Rent Reduction
Percentage for such Property, and (y) the Base Annual
Rental then in effect;
56
(3) have a fair market value no less than
the greater of the then fair market value of the
Property being replaced or the fair market value of such
Property as of the Effective Date (in each case,
determined without regard to this Lease, but assuming
that while this Lease has been in effect, Lessee has
complied with all of the terms and conditions of this
Lease), as determined by Lessor, and consented to by
Lender, utilizing the same valuation method as used in
connection with the closing of the transaction described
in the Sale-Leaseback Agreement, which was based upon
the sum of (x) the fair market value of the land
comprising such Property and (y) the replacement cost of
the improvements located thereon;
(4) have improvements which have a remaining
useful life substantially equivalent to, or better than,
that of the improvements located at the Property to be
replaced;
(5) be conveyed to Lessor (or, if directed
by Lessor, to Lessor and a person designated to acquire
the remainderman interest) by special or limited
warranty deed, free and clear of all liens and
encumbrances, except such matters as are reasonably
acceptable to Lessor (the "Substitute Property Permitted
Exceptions"); and
(6) be located in either (a) the same state
as the Property to be replaced is then located, or (b)
in another state acceptable to Lessor in Lessor's
reasonable discretion;
(ii) Lessor shall have inspected and approved the
Substitute Property utilizing Lessor's customary site inspection and
underwriting approval criteria. Lessee shall have reimbursed Lessor
and Lender for all of their reasonable costs and expenses incurred
with respect to such proposed substitution, including, without
limitation, Lessor's third-party and/or in-house site inspectors'
costs and expenses with respect to the proposed Substitute Property.
Lessee shall be solely responsible for the payment of all costs and
expenses resulting from such proposed substitution, regardless of
whether such substitution is consummated, including, without
limitation, the cost of title insurance and endorsements for both
Lessor and Lender, survey charges, stamp taxes, mortgage taxes,
transfer fees, escrow and recording fees, the cost of environmental
due diligence undertaken pursuant to subsection (v) below,
including, without limitation, the cost of environmental insurance,
income and transfer taxes imposed on Lessor as a result of such
substitution and the reasonable attorneys' fees and expenses of
counsel to Lessee, Lessor and Lender;
(iii) Lessor shall have received a preliminary title
report and irrevocable commitment to insure title by means of an
ALTA extended coverage owner's policy of title insurance (or its
equivalent, in the event such form is not issued in the jurisdiction
where the proposed Substitute Property is located) for the proposed
Substitute Property issued by Title Company and committing to insure
Lessor's good and marketable title in the proposed Substitute
Property, subject only to the Substitute Property Permitted
Exceptions and containing endorsements substantially comparable to
those required by Lessor at the Closing (as defined in the
Sale-Leaseback Agreement) and Lender shall have received such title
57
report and irrevocable commitment to insure its first priority lien
encumbering the proposed Substitute Property as Lender shall
reasonably require;
(iv) Lessor shall have received a current ALTA survey of
the proposed Substitute Property, the form of which shall be
comparable to those received by Lessor at the Closing and sufficient
to cause the standard survey exceptions set forth in the title
policy referred to in the preceding subsection to be deleted;
(v) Lessor shall have completed such environmental due
diligence of the proposed Substitute Property as it deems necessary
or advisable in its sole discretion, including, without limitation,
receiving an environmental insurance policy with respect to such
proposed Substitute Property, or to the extent applicable, an
endorsement to the Environmental Policies, in form and substance and
issued by such environmental insurance company as is acceptable to
Lessor in its sole discretion, and Lessor shall have approved the
environmental condition of the proposed Substitute Property in its
sole discretion;
(vi) Lessee shall deliver, or cause to be delivered,
with respect to Lessee and the Substitute Property, opinions of
Counsel (as defined in the Sale-Leaseback Agreement) in form and
substance comparable to those received at Closing (but also
addressing such matters unique to the Substitute Property as may be
reasonably required by Lessor);
(vii) no Event of Default shall have occurred and be
continuing under any of the Sale-Leaseback Documents;
(viii) Lessee shall have executed such documents as may
be reasonably required by Lessor as a result of such substitution,
including amendments to this Lease and the Memorandum (the
"Substitute Documents"), all of which documents shall be in form and
substance reasonably satisfactory to Lessor;
(ix) the representations and warranties set forth in the
Substitute Documents, this Lease and the Sale-Leaseback Agreement
applicable to the proposed Substitute Property shall be true and
correct in all material respects as of the date of substitution, and
Lessee shall have delivered to Lessor an officer's certificate
certifying to that effect;
(x) Lessee shall have delivered to Lessor certificates
of insurance showing that insurance required by the Substitute
Documents is in full force and effect;
(xi) Lessor shall have obtained an endorsement to the
policy of residual value insurance issued to Lessor and Lender in
connection with the transaction described in the Sale-Leaseback
Agreement with respect to the proposed Substitute Property, which
endorsement shall be in form and substance reasonably satisfactory
to Lessor and Lender;
(xii) Lender shall have consented to the substitution of
the proposed Substitute Property; and
(xiii) the date of the closing of the substitution shall
occur no later than 20 days after the date of acceptance (or deemed
acceptance) by Lessor of the Rejectable Substitution Offer.
58
C. Upon satisfaction of the foregoing conditions set forth in
Section 57.B and provided Lessor has accepted the Rejectable Substitution Offer
or is deemed to have accepted the Rejectable Substitution Offer, or while the
Mortgage corresponding to such Property is still outstanding, any rejection of
the Rejectable Substitution Offer by Lessor is not consented to in writing by
the Lender:
(i) the proposed Substitute Property shall be deemed
substituted for the Property to be replaced;
(ii) the Substitute Property shall be referred to herein
as a "Property" and included within the definition of "Properties";
(iii) the Substitute Documents shall be dated as of the
date of the substitution; and
(iv) Lessor shall convey the Property to be replaced to
Lessee or a designee of Lessee "as-is" by quit-claim deed, subject
to all matters of record (except for the Mortgage corresponding to
the Property to be replaced and any other consensual liens granted
by Lessor other than those granted by Lessor at the request of
Lessee), and without representation or warranty.
D. Notwithstanding the foregoing, nothing in this Section 57 shall
be construed as limiting or otherwise adversely affecting the representations,
warranties, covenants and characterizations set forth in Lease, including,
without limitation, those provisions set forth in Section 3 of this Lease.
58. REJECTABLE PURCHASE OFFER. A. If Lessor shall have given Lessee
notice of a breach of the Aggregate Fixed Charge Coverage Ratio requirement
under this Lease, Lessee shall have the right to deliver a rejectable offer to
Lessor (a "Rejectable Purchase Offer") to purchase such of the Properties as is
contemplated by Section 23.A(ix)(2), subject to the fulfillment of all of the
conditions set forth in this Section 58.
Lessor shall have 90 days from the delivery of the Rejectable
Purchase Offer notice to deliver to Lessee written notice of its election to
either accept or reject the Rejectable Purchase Offer. Lessor's failure to
deliver such notice within such time period shall be deemed to constitute
Lessor's acceptance of the Rejectable Purchase Offer. If the Mortgage
corresponding to the Property to be purchased is still outstanding, any
rejection of the Rejectable Purchase Offer by Lessor shall not be effective
unless it is consented to in writing by Lender. If Lessor accepts the Rejectable
Purchase Offer or is deemed to have accepted the Rejectable Purchase Offer or if
Lender does not consent in writing to any rejection of the Rejectable Purchase
Offer by Lessor, then Lessee shall complete such purchase, subject, however, to
the satisfaction of each of the terms and conditions set forth in the following
subsection B.
If Lessor rejects the Rejectable Purchase Offer pursuant to the
previous paragraph, and such rejection is consented to by Lender, this Lease
shall terminate with respect to the Property which Lessee proposed to purchase
on the next scheduled Base Monthly Rental payment date (the "Early Purchase
Termination Date") provided Lessee has paid to Lessor all Base Annual Rental,
Additional Rental and all other sums and obligations then due and payable under
this
59
Lease as of such Early Purchase Termination Date. On the Early Purchase
Termination Date, and provided Lessee shall have paid to Lessor all Base Annual
Rental, Additional Rental and other sums and obligations then due and payable
under this Lease as of the Early Purchase Termination Date:
(1) the Base Annual Rental then in effect shall be
reduced by an amount equal to the product of (x) the Applicable Rent
Reduction Percentage for the Property which Lessee proposed to
purchase, and (y) the Base Annual Rental then in effect; and
(2) all obligations of Lessor and Lessee shall cease as
of the Early Purchase Termination Date with respect to such
Property; provided, however, Lessee's obligations to Lessor with
respect to such Property under any indemnification provisions of
this Lease with respect to such Property (including, without
limitation, Sections 16 and 19 of this Lease) and Lessee's
obligations to pay any sums (whether payable to Lessor or a third
party) accruing under this Lease with respect to such Property prior
to the Early Purchase Termination Date shall survive the termination
of this Lease with respect to such Property or otherwise. This Lease
shall, however, continue in full force and effect with respect to
all other Properties.
B. The purchase of a Property pursuant to the preceding subsection A
shall be subject to the fulfillment of all of the following terms and
conditions:
(i) no Event of Default shall have occurred and be
continuing under any of the Sale-Leaseback Documents;
(ii) Lessee shall have delivered to Lessor a certificate
executed by a duly authorized officer of Lessee certifying to Lessor
that Lessee does not own any properties which are available for
substitution and which meet the applicable requirements for
substitution set forth in Section 57;
(iii) the purchase of such Property (together with any
other Properties which are being purchased simultaneously therewith)
must result in a cure of the breach of the Aggregate Fixed Charge
Coverage Ratio requirement;
(iv) Lessee shall have paid to Lessor the Subject
Purchase Price (as defined below), together with all Base Annual
Rental, Additional Rental and other sums and obligations then due
and payable under this Lease as of the date of the closing of such
purchase;
(v) Lessee shall be solely responsible for the payment
of all costs and expenses resulting from such proposed purchase,
regardless of whether the purchase is consummated, including,
without limitation, to the extent applicable, the cost of title
insurance and endorsements, including, survey charges, stamp taxes,
mortgage taxes, transfer taxes and fees, escrow and recording fees,
taxes imposed on Lessor as a result of such purchase, the attorneys'
fees of Lessee and the reasonable attorneys' fees and expenses of
counsel to Lessor and Lender; and
60
(vi) the date of the closing of such purchase shall
occur on the next scheduled Base Monthly Rental payment date
following Lessor's acceptance (or deemed acceptance) of the
Rejectable Purchase Offer, but in no event later than 20 days after
the date of acceptance (or deemed acceptance) by Lessor of such
Rejectable Purchase Offer.
On the date of the closing of the purchase of a Property pursuant to
this Section (the "Rejectable Purchase Closing Date"), subject to satisfaction
of the foregoing conditions:
(1) this Lease shall be deemed terminated with respect
to such Property only, but this Lease shall continue in full force
and effect with respect to all of the other Properties; provided,
however, such termination shall not limit Lessee's obligations to
Lessor with respect to such Property under any indemnification
provisions of this Lease (including, without limitation, Sections 16
and 19 of this Lease) and Lessee's obligations to pay any sums
(whether payable to Lessor or a third party) accruing under this
Lease with respect to such Property prior to the Rejectable Purchase
Closing Date shall survive the termination of this Lease;
(2) the Base Annual Rental shall be reduced for each
such Property by an amount equal to the product of (x) the
Applicable Rent Reduction Percentage for such Property and (y) the
Base Annual Rental then in effect; and
(3) Lessor shall convey such Property to Lessee "as-is"
by quit-claim deed, subject to all matters of record (except for the
Mortgage corresponding to the Property to be purchased and any other
consensual liens granted by Lessor other than those granted by
Lessor at the request of Lessee), and without representation or
warranty.
For purposes of this Section 58, the term "Subject
Purchase Price" shall mean the product of the percentage specified
on Schedule I attached hereto which corresponds to the time period
during which such purchase occurs multiplied by the Purchase Price
for the Property being purchased.
59. SPACE LEASES. Lessor hereby assigns to Lessee all of Lessor's
right, title and interest as landlord under the Space Leases, which Space Leases
shall be subleases of the applicable Properties on the terms and conditions set
forth in the Space Leases. Lessee shall fulfill, perform and observe in all
respects, at its own cost and expense, each and every condition and covenant of
the lessor in each Space Lease and give prompt notice to Lessor of any claim or
event of default under any Space Lease given to Lessee by any Space Lessee or
given by Lessee to any Space Lessee, together with a complete copy or statement
of any information submitted or referenced in support of such claim or event of
default. Lessor agrees that the Space Leases are not subject to the consent
requirements set forth in Section 26.B, provided that, Lessee shall not be
relieved of any of its obligations with respect to this Lease by reason of the
Space Leases.
61
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease
as of the date first above written.
LESSOR:
DOUBLE 9 PROPERTY III LLC, a Delaware
limited liability company
By Double 9 Equity III LLC,
a Delaware limited liability
company, its member manager
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
Its Vice President, Assistant
Secretary and Assistant Treasurer
LESSEE:
DOE FAMILY II LLC, a Massachusetts
limited liability company
By: /s/ Xxxxxxx X. Xxx, Xx.
----------------------------------
Xxxxxxx X. Xxx, Xx.
A Manager
Lessee's Tax Identification Number:
00-0000000
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on December 3,
2001 by Xxxxx Xxxxxxxx, Vice President, Assistant Secretary and Assistant
Treasurer of Double 9 Equity III LLC, a Delaware limited liability company,
member manager of Double 9 Property III LLC, a Delaware limited liability
company, on behalf of the limited liability company.
/s/ Xxxxxxx X. Xxxxxx
-----------------------
Notary Public
My Commission Expires:
11/21/03
---------------------
STATE OF MASSACHUSETTS ]
] SS.
COUNTY OF MIDDLESEX ]
The foregoing instrument was acknowledged before me on November
16th, 2001 by Xxxxxxx X. Xxx, Xx., a Manager of Doe Family II LLC, a
Massachusetts limited liability company, on behalf of the limited liability
company.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Notary Public
My Commission Expires:
March 26, 2006
---------------------
EXHIBIT A
PROPERTIES
Pool 3
EXHIBIT A
FFC # STORE # ADDRESS CITY COUNTY STATE
--------------------------------------------------------------------------------------------------------------------------
8001-3353 2050 00 Xxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxx XX
000x-0000 2046 000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX
0000-0000 3035 000 Xxxxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX
0000-0000 2048 0 Xxxx'x Xxx Xxxxxxx Xxxxxxxxxx XX
0000-0000 2044 000 Xxxxxxxx Xxxxxx (Rt 138) Canton Norfolk MA
800l-3349 2045 00 Xxxxxx Xxxxxx Xxxxx Xxxxx XX
0000-0000 3026 000-000 Xxxxx Xxxxxxxx Xxxxx Xxxxxxxxxx XX
0000-0000 3015 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX
EXHIBIT A-1
LEGAL DESCRIPTIONS OF PROPERTIES
LEGAL DESCRIPTION
The land, with the buildings and improvements thereon, situated on
the easterly side of Lexington Road, in Billerica, Middlesex County,
Massachusetts, and being shown as Lot AA 2.84 Acres on a plan of land entitled:
"Plan of Land in Billerica, Mass. Prepared for Xxxxxx Xxxxxx", Scale: 1 inch =
50 feet, dated Feb., 1979, and prepared by Xxxxxx, Xxxxxxx & Xxxxxxxx, Inc.,
Engineers & Surveyors, which plan is recorded with the Middlesex North District
Registry of Deeds in Plan Book 128, Plan 98, and to which plan reference is made
for a more particular description.
FFC Xx. 0000-0000
Xxxx Xx. 0000
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX
EXHIBIT A
LEGAL DESCRIPTION
PARCEL I
The land in Auburn, on the southeasterly side of Southbridge Street and the
northerly side of Southwest Connection, otherwise known as Washington Street,
bounded and described as follows:
BEGINNING at a point in the northerly line of Southwest Connection at the
southwesterly corner of the tract to be conveyed and the land now or formerly of
one Kee;
THENCE N. 5 degrees 30' 46" W. 87.22 feet to a point;
THENCE N. 59 degrees 08' 40" E. 58.15 feet to a point;
THENCE N. 3 degrees 11' 54" 107.93 feet to a point;
THENCE N. 71 degrees 35' 10" W. 12.71 feet to a point;
THENCE N. 42 degrees 48' 30" W. 163.35 feet to a point in the southerly line of
Xxxxxxxxxxx Xxxxxx;
The last five courses by land now or formerly of said Kee;
THENCE northeasterly on the southerly line of said Xxxxxxxxxxx Xxxxxx one
hundred twenty (120) feet more or less to land now or formerly of one Ormond;
THENCE southeasterly one hundred fifty (150) feet on said Ormond land to an
angle;
THENCE northeasterly still on said Ormond land one hundred seventy-eight (178)
feet more or less to land now or formerly of the Auburn Water Company;
THENCE southerly three hundred sixty (360) feet more or less on said land now or
formerly of Auburn Water Company to the Southwest Connection;
THENCE westerly on the Southwest Connection two hundred fifty (250) feet more or
less to land now or formerly of Kee to the point of beginning.
Together with rights of way mentioned in the deed to Xxxxx X. Xxx et al recorded
with Worcester District Registry of Deeds, Book 4305, Page 227.
GECFFC No. 8001-3343
Store No. 0000
Xxxxxx, XX
PARCEL II
A certain parcel or tract of land situated on the westerly side of Appelton
Road;
Beginning at the northeasterly corner of the premises hereby conveyed at a point
three hundred forty-eight and ninety-six hundredths (348.96) feet south of
Xxxxxxxxxxx Xxxxxx and at the southeasterly corner of land conveyed to the
Auburn Water Company by deed recorded with Worcester District Registry of Deeds,
Book 7513 Page 531;
Thence N. 83" W. by the southerly line of said Auburn Water Company land, two
hundred fifty (250) feet to a point;
Thence southerly one hundred eighty (180) feet, more or less, to a point at the
northwesterly corner of land conveyed to one Xxxxx by deed recorded with said
Registry, Book 3023, Page 3;
Thence easterly by the northerly line of said Xxxxx land, two hundred fifty
(250) feet to the westerly line of Appelton Road which point is approximately
five hundred twenty-eight and ninety-six hundredths (528.96) feet south of
Xxxxxxxxxxx Xxxxxx;
Thence northerly by the westerly line of Appleton Road, one hundred eighty (180)
feet, more or less, to land now or formerly of the Auburn Water Company and the
point of beginning.
Being all of the second parcel or tract of land described in a deed from the
Xxxxxxxx-Irish-Perry Realty Company to the Worcester County Electric Company,
dated August 13, 1948 and recorded with Worcester County District Registry of
Deeds in Book 3163, Page 255.
PARCEL III
A certain parcel or tract of land being lots 106 and 107 as shown on plan of
"Mount Auburn Building Sites" now or formerly owned by the Xxxxxxxx-Irish-Xxxxx
Realty Company, X. X. Xxxxxxx Co., C. E. dated July 5, 1927 and bounded and
described as follows:
Beginning at a point on the westerly line of Appleton Road, at a point 228.96
feet southerly from a store bound at the corner of Appleton Road and Southbridge
Street;
Thence by the westerly line of Appleton Road, S. 2 degrees W., 120 feet to lot
105 as shown on said plan;
Thence N. 88 degrees W., by lot 105 as shown on said plan, 250 feet;
Thence N. 2 degrees E., 60 feet;
Thence northwesterly about 7 feet to a point, 150 feet southerly from
Xxxxxxxxxxx Xxxxxx;
Thence northeasterly by a line parallel to and 150 feet southerly from
Xxxxxxxxxxx Xxxxxx and by lot 110 as shown on said plan, 150 feet;
Thence at a right angle to the last described course, southeasterly and by lot
109 as shown on said plan, 13.23 feet;
2
GE Capital No. 8001-3343
Ninety Nine Restaurants
Store No. 3035
Thence S. 83 degrees E. 113.06 feet by lots 108 and 109 on said plan to point of
beginning,
Containing 27,270 square feet of land,
Being all of the parcel or tract of land described in a deed from the Auburn
Water Company to the Worcester County Electric Company, dated August 15, 1950
and recorded with Worcester County District Registry of Deeds however, there was
an exception and reservation contained in the above referred to deed in favor of
the Grantor (Auburn Water Company), its successors and assign, from the above
described parcel or tract of land situated on the southeasterly corner thereof
and bounded as follows:
EASTERLY by the westerly side of Xxxxxxxx Xxxx, 00 feet;
SOUTHERLY by said lot 105, 21 feet;
WESTERLY by the granted premises, 21 feet; and
NORTHERLY by the granted premises, 21 feet.
The Worcester County Electric Company changed its name to Massachusetts Electric
Company as of January 30, 1961. See Certificate of Change of Name recorded with
Worcester County District Registry of Deeds in Book 4173, Page 128.
PARCEL IV
The land on the southerly side of Southbridge Street and the northerly side of
Xxxxx 00, Xxxxxx, Xxxxxxxxxxxxx, more particularly bounded and described as
follows:
BEGINNING at the southwesterly corner of the lot herein described, said point of
beginning being the intersection of the northerly line of the (Southwest
Connection) Route 20 and the easterly line of a Right of Way formerly known as
Clearview Avenue, which latter point is 227.50 feet easterly (measured on the
northerly line of the Southwest Connection 20) of the tangent point of a curve
leading westerly by the Southwest Connection Route 20 the radius of which is
50.0 feet:
THENCE running N 9(degree) 14' W. by said Right of Way, 320.90 feet to a point
in the southeasterly line of Xxxxxxxxxxx Xxxxxx;
THENCE running northeasterly by the southeasterly line of Xxxxxxxxxxx Xxxxxx and
by a curve to the right, the radius of which is 1020.0 feet, 53.67 feet to a
point;
THENCE running S 42(degree) 48' 30" E., 163.35 feet to a point;
THENCE running S 71(degree) 35' 10" E., 12.71 feet to a point;
3
GE Capital No. 8001-3343
Ninety Nine Restaurants
Store No. 3035
THENCE running S 3(degree) 11' 54" E., 107.93 feet to a point;
THENCE running S 59(degree) 08' 40" W., 58.15 feet to a point;
THENCE running S 5(degree) 30' 46" E., 87.22 feet to a point; in the northerly
line of the Southwest Connection Route 20.
The last five above-described courses by land now or formerly of Xxxxx X. Xxx
a/k/a Xxxxx Xxx and Xxxxx Xxx.
THENCE running S. 88(degree) 36' 44" W. by the northerly line of Route 20
(Southwest Connection) 78.10 feet to the point of beginning.
Being shown on a "Plan of Land in Auburn, Massachusetts, to be purchased by
Xxxxx Xxx, Scale 1"-30' dated August 2, 1962, and drawn by Xxxxxxx X. Xxxxxxxx
C. E., 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx," recorded in the
Worcester District Registry of Deeds Plan Book 266, Plan 7.
4
GE Capital No. 8001-3343
Ninety Nine Restaurants
Store No. 3035
EXHIBIT A
LEGAL DESCRIPTION
The land, with the buildings and improvements thereon, situated on
Turnpike Street in Canton, Norfolk County, Massachusetts, and being shown as Lot
6-1 on a plan of land entitled: "Plan of Land in Canton, Massachusetts prepared
for Xxxxxxx Restaurants" by X. X. Xxxxxxxx & Associates, Inc., dated November 3,
1994, which plan is recorded with the Norfolk County Registry of Deeds as Plan
No. 127 of 1995, Plan Book 428, and to which plan reference is made for a more
particular description.
GECFFC No. 8001-3348
Store No. 2044
Canton, MA
LEGAL DESCRIPTION
The land with the buildings thereon, in Salem, Essex County,
Massachusetts, situated on the northeasterly side of Xxxxxx Avenue and the
southeasterly side of Bridge Street as shown on a Plan entitled, "New England
Power Service Company, Part of New England Electric System, Boston, Mass., North
Shore Gas Company, Plan of Land in Salem, Massachusetts, to be conveyed to New
Englander House, Inc., Scale 1" -40", Date August 17, 1954. L-5264", recorded
with Essex South District Registry of Deeds, Book 4196, Page 330, and being
bounded and described as follows:
Beginning at the southwesterly corner of the granted premises at the
corner of Bridge Street and Xxxxxx Avenue; thence running in a general
northeasterly direction 225.3 feet by Bridge Street to a fence and land now or
formerly of Xxxxxx X. Xxxxxxxx et ux; thence turning and running in a general
southeasterly direction by said fence and Xxxxxxxx' land 36 feet to a fence post
at an angle in the fence; thence turning and running easterly by said fence and
Xxxxxxxx' land 81.8 feet to a fence post at remaining land of the North Shore
Gas Company; thence turning and running southeasterly by the fence and remaining
land of North Shore Gas Company 171.8 feet to a fence post at a corner of fence;
thence turning and running southwesterly by the fence and remaining land of
North Shore Gas Company 179.3 feet to Xxxxxx Avenue; thence turning and running
northwesterly by Xxxxxx Avenue 228 feet to the point of beginning, containing
55,100 square feet, more or less.
FFCA No. 8001-3349
Store No. 2045
00 Xxxxxx Xxxxxx
Xxxxx, XX
EXHIBIT A
LEGAL DESCRIPTION
The land, with the buildings and improvements thereon, situated on
the westerly side Road and Summer Street, in Fitchburg, Worcester County,
Massachusetts, and being shown as Lot #l on a plan of land entitled: "Horseshoe
Park Definitive Subdivision 000 Xxxxxx Xxxxxx at Xxxxx Road, Fitchburg, MA",
Prepared by: Raggs Septic Service, Inc. d/b/a X.X. Xxxxxx Septic, which plan is
dated January 14, 2001, and recorded with the Worcester North District Registry
of Deeds in Plan Book 423, Plan 8, and to which plan reference is made for a
more particular description.
Together with the rights of ingress and egress between the premises
and Summer Street via Horseshoe Park Drive.
FFCA No. 8001-3350
Store No. 2046
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX
LEGAL DESCRIPTION
The land in Mashpee, Barnstable County, Massachusetts now known as 0 Xxxx'x Xxx
and being shown as Lot 1 on a plan of land entitled "Subdivision Plan of Land in
Mashpee, Mass. Scale: one inch equals 40 feet, dated August 15, 1984, Owner:
Pine Tree Acres, Inc., Petitioner: Xxxxx Xxxxxxxx, Xx X. Xxxxxxx and Assoc.,
Inc., Box 801, No. Falmouth, Mass." Said plan is recorded with the Barnstable
County Registry of Deeds at Book 390, Page 20. Said premises are further bounded
and described as follows:
NORTHERLY by Ryan's Way, as shown on said plan, a distance of two
hundred seventy-five and 00/100 (275.00) feet;
NORTHEASTERLY by a curve at the intersection of Ryan's Way and
Central Road, as shown on said plan, having a radius of
twenty-five and 00/100 (25.00) feet;
EASTERLY by two courses, as shown on said plan, measuring
respectively, one hundred five and 00/100 (105.00) feet
and seventy-one and 86/100 (71.86) feet, totalling one
hundred seventy-six and 86/100 (176.86) feet;
SOUTHERLY by three courses, as shown on said plan, measuring
respectively one hundred fifty-two and 64/100 (152.64)
feet, ninety-three and 35/100 (93.35) feet and
eighty-six and 52/100 (86.52) feet, totalling three
hundred thirty-two and 51/100 (332.51) feet;
WESTERLY by Lot 3, as shown on said plan, by two courses
measuring respectively two hundred twenty-five and
65/100 (225.65) feet and one hundred fifty-four and
04/100 (154.04) feet.
FFCA No. 8001-3352
Store No. 2048
0 Xxxx'x Xxx
Xxxxxxx, XX
LEGAL DESCRIPTION
The land with any buildings and improvements thereon, in West Yarmouth,
Barnstable County, Massachusetts being shown as Lot 2 on a plan entitled "Site
Development Plan for 00 Xxxxxxxxxx & Xxx xx Xxxx Xxxxxxxx, Xxxxxxxxxxxxx", dated
January 27, 1997 made by Xxxxxx Consulting, Inc. recorded in Plan Book 531, Page
81, being bounded and described in accordance with said plan, as follows:
NORTHERLY by land shown as now or formerly of Botsini Realty
Trust (Xxxxxxx Xxxxxxxxxx, Trustee) two hundred
eighty-nine and 47/100 (289.47) feet; and
EASTERLY by Lot 1 shown on said plan, two hundred forty-six and
18/100 (246.18) feet; and
SOUTHEASTERLY by land shown as Map 31, Lots 61 and 60, now or
formerly of Xxxxxxx Xxxxxx Xxxxx and Xxxxxx X. and
Xxxxxxxxx X. Xxxxx, respectively, one hundred fifty-two
and 59/100 (152.59) feet; and
SOUTHWESTERLY by Lot 3 shown on said plan, three hundred twenty-nine
and 63/100 (329.63) feet; and
NORTHWESTERLY by Xxxxx avenue, two hundred seventy-five and 01/100
(275.01) feet
Together with the benefit of rights and easement set forth in Cross Easement
Agreement by and between Xxxxxxx Xxxxxxxxxx and Xxxxx Xxxxxxxxxx, Trustees of
Botsini Realty Trust, and Xxxxxxx X. Xxx, Xx., Xxxxxxx X. Xxx, and Xxxx X. Xxx,
Trustees of the Doe Family Trust II, dated March 20,1997 and recorded with the
Barnstable County Registry of Deeds in Book 10662, Page 105, in accordance with
the terms thereof.
FFCA No. 8001-3353
Store No. 2050
00 Xxxxx Xxxxxx
Xxxxxxxx, XX
LEGAL DESCRIPTION
The land, consisting of 0.389 acre more or less, together with all
improvements thereon and all easements appurtenant thereto, known as and
numbered 000-000 Xxxxx Xxxxxxxx, Xxx Xxxxxxxxx, and being shown as Parcel I on a
plan of land entitled "Plan of Land in Salem, New Hampshire, as drawn for
Bonanza International, Scale 1" = 20', September 1976," Xxxxxx X. Xxxxxxxxx,
Surveyor, said plan being recorded in the Rockingham County Registry of Deeds as
Plan No. C-69448, and also shown on that certain plan, entitled "Plan of Land in
Salem, N. H. - As Drawn for Xxxxxx X. Xxxxxxxx", dated March, 1982, last revised
April 9, 1982, prepared by Xxxxxx X. Xxxxxxxxx, Licensed Land Surveyor, and
recorded with the Rockingham County Registry of Deeds as Plan D-10779 said
parcel being more particularly bounded and described as follows:
Beginning at the Southwesterly corner of the premises at a railroad
spike in the Xxxxxxxx xxxx xx Xxxxx Xxxxxxxx, Xxxxx 00; thence N 12(degree) 27'
30" W, 95.19 feet by and along South Broadway, Route 28, to a railroad spike;
thence S 87(degree) 35' 25" E, 181.00 feet by and along Veterans Memorial
Parkway to an iron pipe; thence S 8(degree) 43' 15" E, 33.68 feet by and along
land now or formerly of Xxxxxx X. Xxxxxxxx to a point; thence S 2(degree) 24'
35" W, 65.45 feet by and along land of Xxxxxx X. Xxxxxxxx to a point; thence N
87(degree) 35' 25" W, 123.64 feet by and along land of Xxxxxx X. Xxxxxxxx to a
point; thence N 78(degree) 14' 10" W, 39.97 feet by and along land now or
formerly of Xxxxxx X. Xxxxxxxx to a railroad spike at the point of beginning.
Together with benefit of those certain non-exclusive appurtenant
easements for the benefit of Parcel I as set forth in Covenants by Xxxxxx X.
Xxxxxxxx, dated November 4, 1976, recorded with the Rockingham County Registry
of Deeds at Book 2292, Page 946, in accordance with the terms and conditions
thereof.
FFCA No. 8001-3355
Store No. 3031
000-000 Xxxxx Xxxxxxxx
Xxxxx, XX
SCHEDULE I
STIPULATED LOSS VALUE
99 RESTAURANTS
% OF NET
PURCHASE
DATE PRICE
---- -----
l/1/2002 114.722290%
2/l/2002 115.635084%
3/l/2002 115.665139%
4/l/2002 115.695233%
5/l/2002 115.725366%
6/l/2002 115.755536%
7/l/2002 115.785744%
8/l/2002 115.815989%
9/l/2002 115.846270%
10/l/2002 115.876586%
11/1/2002 115.906936%
12/l/2002 115.937320%
l/1/2003 115.967738%
2/l/2003 115.990147%
3/l/2003 116.012526%
4/l/2003 116.034875%
5/l/2003 116.057192%
6/l/2003 116.079475%
7/l/2003 116.101725%
8/l/2003 116.123938%
9/l/2003 116.146115%
10/l/2003 116.168254%
11/1/2003 116.190353%
12/l/2003 116.212412%
l/l/2004 116.234428%
2/l/2004 116.248279%
3/l/2004 116.262023%
4/l/2004 116.275659%
5/l/2004 116.289185%
6/l/2004 116.302598%
7/l/2004 116.315897%
8/l/2004 116.329080%
9/l/2004 116.342145%
10/l/2004 116.355089%
11/l/2004 116.367912%
12/l/2004 116.380611%
l/1/2005 116.393183%
2/l/2005 116.397425%
3/l/2005 116.401474%
4/l/2005 116.405328%
5/l/2005 116.408984%
6/l/2005 116.412439%
7/l/2005 116.415692%
STIPULATED LOSS VALUES - LEASE
99 RESTAURANTS
% OF NET
PURCHASE
DATE PRICE
---- -----
8/l/2005 116.418739%
9/l/2005 116.421577%
10/1/2005 116.424205%
11/1/2005 116.426618%
12/l/2005 116.428815%
l/1/2006 116.430792%
2/l/2006 116.424262%
3/l/2006 116.417444%
4/l/2006 116.410334%
5/l/2006 116.402930%
6/l/2006 116.395227%
7/l/2006 116.387222%
8/l/2006 116.378912%
9/l/2006 116.370293%
10/l/2006 116.361361%
11/1/2006 116.352114%
12/l/2006 116.342547%
l/1/2007 116.332656%
2/l/2007 116.314071%
3/l/2007 116.295092%
4/l/2007 116.275714%
5/l/2007 116.255933%
6/l/2007 116.235745%
7/l/2007 116.215145%
8/l/2007 116.194130%
9/l/2007 116.172694%
10/l/2007 116.150833%
11/1/2007 116.128542%
12/l/2007 116.105818%
l/1/2008 116.082655%
2/l/2008 116.050598%
3/l/2008 116.018028%
4/l/2008 115.984941%
5/l/2008 115.951332%
6/l/2008 115.917194%
7/l/2008 115.882523%
8/l/2008 115.847314%
9/l/2008 115.811560%
10/1/2008 115.775257%
11/1/2008 115.738398%
12/l/2008 115.700978%
l/1/2009 115.662992%
2/l/2009 115.615898%
STIPULATED LOSS VALUES - LEASE
99 RESTAURANTS
% OF NET
PURCHASE
DATE PRICE
---- -----
3/l/2009 115.568161%
4/l/2009 115.519775%
5/l/2009 115.470734%
6/l/2009 115.421031%
7/l/2009 115.370659%
8/l/2009 115.319613%
9/l/2009 115.267885%
10/1/2009 115.215469%
11/1/2009 115.162359%
12/l/2009 115.108547%
l/1/2010 115.054026%
2/l/2010 114.990170%
3/l/2010 114.925525%
4/l/2010 114.860086%
5/l/2010 114.793844%
6/l/2010 114.726792%
7/l/2010 114.658922%
8/l/2010 114.590226%
9/l/2010 114.520697%
10/1/2010 114.450327%
11/1/2010 114.379107%
12/l/2010 114.307030%
l/1/2011 114.234088%
2/l/2011 114.151565%
3/l/2011 114.068094%
4/l/2011 113.983666%
5/l/2011 113.898273%
6/l/2011 113.811906%
7/l/2011 113.724554%
8/l/2011 113.636211%
9/l/2011 113.546865%
10/l/2011 113.456509%
11/1/2011 113.365132%
12/l/2011 113.272726%
l/1/2012 113.179280%
2/l/2012 113.075991%
3/l/2012 112.971577%
4/1/2012 112.866027%
5/l/2012 112.759331%
6/1/2012 112.651480%
7/1/2012 112.542461%
8/1/2012 112.432266%
9/l/2012 112.320882%
STIPULATED LOSS VALUES - LEASE
99 RESTAURANTS
% OF NET
PURCHASE
DATE PRICE
---- -----
10/1/2012 112.208299%
11/1/2012 112.094507%
12/1/2012 111.979495%
1/1/2013 111.863251%
2/l/2013 111.736882%
3/1/2013 111.609191%
4/l/2013 111.480167%
5/1/2013 111.349798%
6/1/2013 111.218072%
7/1/2013 111.084977%
8/1/2013 110.950499%
9/1/2013 110.814629%
10/1/2013 110.677351%
11/1/2013 110.538655%
12/l/2013 110.398528%
1/1/2014 110.256956%
2/1/2014 110.104956%
3/1/2014 109.951417%
4/1/2014 109.796327%
5/l/2014 109.639671%
6/1/2014 109.481436%
7/1/2014 109.321608%
8/1/2014 109.160173%
9/l/2014 108.997116%
10/1/2014 108.832423%
11/1/2014 108.666080%
12/1/2014 108.498073%
1/1/2015 108.328386%
2/l/2015 108.147945%
3/1/2015 107.965726%
4/1/2015 107.781713%
5/1/2015 107.595892%
6/1/2015 107.408245%
7/l/2015 107.218759%
8/l/2015 107.027415%
9/l/2015 106.834199%
10/1/2015 106.639094%
11/1/2015 106.442083%
12/1/2015 106.243150%
1/1/2016 106.042279%
2/l/2016 105.830300%
3/l/2016 105.616279%
4/1/2016 105.400198%
STIPULATED LOSS VALUES - LEASE
99 RESTAURANTS
% OF NET
PURCHASE
DATE PRICE
---- -----
5/1/2016 105.182039%
6/1/2016 104.961785%
7/1/2016 104.739417%
8/l/2016 104.514917%
9/1/2016 104.288267%
10/1/2016 104.059448%
11/1/2016 103.828441%
12/1/2016 103.595229%
1/1/2017 103.359790%
2/l/2017 103.112864%
3/1/2017 102.863604%
4/1/2017 102.611990%
5/1/2017 102.358002%
6/1/2017 102.101619%
7/l/2017 101.842821%
8/1/2017 101.581588%
9/l/2017 101.317897%
10/1/2017 101.051729%
11/1/2017 100.783063%
12/1/2017 100.511876%
1/1/2018 100.238148%
2/1/2018 99.952521%
3/1/2018 99.664238%
4/1/2018 99.373276%
5/1/2018 99.079612%
6/l/2018 98.783225%
7/l/2018 98.484089%
8/1/2018 98.182183%
9/1/2018 97.877482%
10/1/2018 97.569964%
11/1/2018 97.259603%
12/1/2018 96.946376%
1/1/2019 96.630258%
2/1/2019 96.301797%
3/l/2019 95.970325%
4/1/2019 95.635816%
5/1/2019 95.298245%
6/1/2019 94.957585%
7/1/2019 94.613811%
8/l/2019 94.266897%
9/l/2019 93.916816%
10/1/2019 93.563541%
11/1/2019 93.207046%
STIPULATED LOSS VALUES - LEASE
99 RESTAURANTS
% OF NET
PURCHASE
DATE PRICE
---- -----
12/1/2019 92.847303%
1/1/2020 92.484285%
2/1/2020 92.108441%
3/l/2020 91.729194%
4/l/2020 91.346516%
5/1/2020 90.960378%
6/l/2020 90.570751%
7/l/2020 90.177605%
8/1/2020 89.780912%
9/1/2020 89.380641%
10/1/2020 88.976762%
11/1/2020 88.569246%
12/1/2020 88.158061%
1/1/2021 87.743177%
2/l/2021 87.314945%
3/l/2021 86.882879%
4/1/2021 86.446946%
5/1/2021 86.007115%
6/1/2021 85.563353%
7/1/2021 85.115627%
8/1/2021 84.663904%
9/l/2021 84.208152%
10/1/2021 83.748335%
11/1/2021 83.284421%
12/1/2021 82.816375%
l/1/2022 82.344163%
STIPULATED LOSS VALUES - LEASE
SCHEDULE II
STATE SPECIFIC PROVISIONS
MASSACHUSETTS
With respect to those Properties located in the State of
Massachusetts, all indemnification provisions of this Lease, including, without
limitation, Sections 16.C, 16.G and 19 shall be deemed to be modified so that
they comply with Massachusetts General Laws Chapter 186, Section 15, it being
the intent of the parties that, with respect to such Properties, Lessor shall
not be indemnified, held harmless, or precluded or exonerated from any or all
liability, for any injury, loss, damage or liability arising from any omission,
fault, negligence or other misconduct of Lessor on or about such Properties or
on or about any elevators, stairways, hallways or other appurtenance used in
connection therewith.
