Exhibit 10(c)
MASTER LEASE
THIS MASTER LEASE (this "Lease") is made as of October 29, 2002 (the
"Effective Date"), by and between JAX REAL ESTATE, LLC, a Delaware limited
liability company ("Lessor"), and X. XXXXXXXXX'X RESTAURANTS, INC., a Tennessee
corporation ("Lessee").
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:
"ADA" means the Americans with Disabilities Act of 1990, as such act
may be amended from time to time.
"Additional Rental" has the meaning set forth in Section 5.B.
"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.
"Anti-Money Laundering Laws" means all applicable laws, regulations
and government guidance on the prevention and detection of money laundering,
including 18 U.S.C. ss. ss. 1956 and 1957, and the BSA.
"Applicable Regulations" means all applicable statutes, regulations,
rules, ordinances, codes, licenses, permits, orders and approvals of each
Governmental Authority having jurisdiction over any of the Properties,
including, without limitation, all health, building, fire, safety and other
codes, ordinances and requirements, all applicable standards of the National
Board of Fire Underwriters and the ADA and all policies or rules of common law,
in each case, as amended, and any judicial or administrative interpretation
thereof, including any judicial order, consent, decree or judgment applicable
to any of the Lessee Parties.
"Applicable Rent Reduction Percentage" means, with respect to any
Property, a fraction, the numerator of which shall be the original principal
balance of the Note corresponding to such Property, and the denominator of
which shall be the sum of all of the original principal balances of the Notes
corresponding to all of the Properties then subject to this Lease, including
such Property.
"Base Annual Rental" means $2,566,025.64.
"Base Monthly Rental" means an amount equal to 1/12 of the applicable
Base Annual Rental.
"BSA" means the Bank Secrecy Act (31 X.X.X.xx.xx. 5311 et. seq.), and
its implementing regulations, Title 31 Part 103 of the U.S. Code of Federal
Regulations.
"Business Day" means any day on which Lender is open for business
other than a Saturday, Sunday or a legal holiday, ending at 5:00 P.M. Phoenix,
Arizona time.
"Code" means Title 11 of the United States Code, 11 U.S.C. Sec. 101 et
seq., as amended.
"Default Rate" means the lesser of the highest rate for which the
undersigned may legally contract or the rate of 14% per annum.
"Effective Date" has the meaning set forth in the Preamble.
"Entity" means any entity that is not a natural person.
"Environmental Condition" means any condition with respect to soil,
surface waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium comprising any of the
Properties, whether or not yet discovered, which would reasonably be expected
to or does result in any damage, loss, cost, expense, claim, demand, order or
liability to or against any of the Lessee Parties, Lessor or Lender by any
third party (including, without limitation, any Governmental Authority),
including, without limitation, any condition resulting from the operation of
business at any of the Properties and/or any activity or operation formerly
conducted by any person or entity on any of the Properties.
"Environmental Insurer" means American International Specialty Lines
Insurance Company, or such other environmental insurance company as Lessor may
select, and its successors and assigns.
"Environmental Laws" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations, orders, injunctions and
decrees of Governmental Authorities and common law, relating to Hazardous
Materials or USTs and/or the protection of human health or the environment by
reason of a Release or a Threatened Release of Hazardous Materials or USTs 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, orders, injunctions and decrees of Governmental Authorities:
the Comprehensive Environmental Response, Compensation and Liability Act, 42
X.X.X.xx.xx. 9601 et seq.; the Emergency Planning and Community Xxxxx-xx-Xxxx
Xxx, 00 X.X.X.xx. 00000 et seq.; the Hazardous Materials Transportation Act, 49
X.X.X.xx. 5101 et seq.; the Resource Conservation and Recovery Act (including
but not limited to Subtitle I relating to USTs), 42 X.X.X.xx.xx. 6901 et seq.;
the Clean Water Act, 33 X.X.X.xx.xx. 1251 et seq.; the Clean Air Act, 42
X.X.X.xx.xx. 7401 et seq.; the Toxic Substances Control Act, 15 X.X.X.xx. 2601
et seq.; the Safe Drinking Water Act, 42 X.X.X.xx.xx. 7401 et seq.; the
Occupational Safety and Health Act, 29 X.X.X.xx. 651 et seq.; the Federal
Insecticide, Fungicide and Rodenticide Act, 7 X.X.X.xx.xx. 136 et seq.; the
Endangered Species Act, 16 X.X.X.xx.xx. 1531 et seq. and the National
Environmental Policy Act, 42 X.X.X.xx. 4321 et seq. "Environmental Laws" also
includes, but is not limited to, any present and future federal, state and local
laws, statutes, ordinances, rules, regulations, orders, injunctions and decrees
of Governmental Authorities and 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 title to or interest in property; imposing conditions or
requirements relating to Hazardous Materials or USTs in connection with permits
or other authorizations required by Governmental Authorities; relating to the
handling and disposal of Hazardous Materials; 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 or USTs in, on, under or above any of the Properties.
"Environmental Liens" has the meaning set forth in Section 6.L(9).
"Environmental Policies" means the environmental insurance policies
issued by Environmental Insurer to Lender with respect to the Properties, which
Environmental Policies shall be in form and substance satisfactory to Lender in
its sole discretion.
"Event of Default" has the meaning set forth in Section 24.
"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 having jurisdiction or supervisory or regulatory
authority over any of the Properties or any of the Lessee Parties.
"Guarantor" means X. Xxxxxxxxx'x Corporation, a Tennessee corporation.
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"Guaranty" means the unconditional guaranty of payment and performance
dated as of the Effective Date executed by Guarantor for the benefit of Lessor
with respect to Lessee's obligations under this Lease, as the same may be
amended from time to time.
"Hazardous Materials" means (a) any toxic substance or hazardous
waste, substance, solid waste or related material, or any pollutant or
contaminant; (b) radon gas, asbestos in any form which is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
containing dielectric fluid having levels of polychlorinated biphenyls in
excess of applicable standards established by any Governmental Authority, or
any petroleum product or additive; (c) any substance, gas, material or chemical
which is now or hereafter 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 (d) any other chemical, material, gas or substance the
exposure to or release of which is prohibited, limited or regulated by any
Governmental Authority that asserts or may 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 is reasonably likely to pose
a hazard to the health and/or safety of the occupants of any of the Properties.
"Indemnified Parties" means Lessor, Environmental Insurer, Lender,
their respective directors, officers, shareholders, trustees, beneficial
owners, partners and members, any directors, officers, shareholders, trustees,
beneficial owners, partners, members of any shareholders, beneficial owners,
partners or members of Lessor, Environmental Insurer 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, Environmental Insurer or Lender, as applicable.
"Lease Term" shall have the meaning described in Section 4.
"Leased Personal Property" means the Personal Property described on
Exhibit B attached hereto.
"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 Parties" means, collectively, Lessee and any guarantors of
this Lease (including, in each case, any predecessors-in-interest).
"Lessor Parties" means, collectively, Lessor (including any
predecessor-in-interest to Lessor) and any Affiliate of Lessor (including any
Affiliate of any predecessor-in-interest to Lessor).
"License Agreement" means the license agreement dated as of the date
of this Lease between Lessor and Guarantor, as the same may be amended from
time to time.
"Loan Agreement" means the Loan Agreement dated as of the Effective
Date in effect between Lessor and Lender, as such agreement may be amended,
modified or supplemented 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, modified 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).
"Material Adverse Effect" means a material adverse effect on (i) any
of the Properties, including, without limitation, the operation of any of the
Properties as a Permitted Concept, or (ii) Lessee's ability to perform its
obligations under this Lease.
"Memorandum" means the memorandum of master lease dated as of the
Effective Date between Lessor and Lessee with respect to the Properties. 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 dated as of the Effective Date executed by Lessor for the
benefit of Lender with respect to the Properties, as such instruments may be
amended, modified, restated and/or supplemented from time to time and any and
all replacements or substitutions thereof.
"Notes" means, collectively, the promissory notes dated as of the
Effective Date executed by Lessor and payable to Lender with respect to the
Properties, as such notes may be amended, modified, restated and/or substituted
from time to time.
"OFAC Laws and Regulations" means Executive Order 13224 issued by the
President of the United States of America, the Terrorism Sanctions Regulations
(Title 31 Part 595 of the U.S. Code of Federal Regulations), the Terrorism List
Governments Sanctions Regulations (Title 31 Part 596 of the U.S. Code of
Federal Regulations), the Foreign Terrorist Organizations Sanctions Regulations
(Title 31 Part 597 of the U.S. Code of Federal Regulations), and the Cuban
Assets Control Regulations (Title 31 Part 515 of the U.S. Code of Federal
Regulations), and all other present and future federal, state and local laws,
ordinances, regulations, policies, lists (including, without limitation, the
Specially Designated Nationals and Blocked Persons List) and any other
requirements of any Governmental Authority (including, without limitation, the
United States Department of the Treasury Office of Foreign Assets Control)
addressing, relating to, or attempting to eliminate, terrorist acts and acts of
war, each as hereafter supplemented, amended or modified from time to time, and
the present and future rules, regulations and guidance documents promulgated
under any of the foregoing, or under similar laws, ordinances, regulations,
policies or requirements of other states or localities.
"Other Agreements" means, collectively, all agreements and instruments
now or hereafter entered into between, among or by (1) any of the Lessee
Parties and/or any Affiliate of any of the Lessee Parties (including any
Affiliate of any predecessor-in-interest to any of the Lessee Parties), and, or
for the benefit of, (2) any of the Lessor Parties, including, without
limitation, the License Agreement; provided, however, the term Other Agreements
shall not include this Lease.
"Participation" means one or more grants by Lender or any Affiliate of
Lender to a third party of a participating interest in notes evidencing
obligations to repay secured or unsecured loans owned by Lender or any
Affiliate of Lender or any or all servicing rights with respect thereto.
"Permitted Amounts" means, with respect to any given level of
Hazardous Materials, that level or quantity of Hazardous Materials in any form
or combination of forms the presence, use, storage, release or handling of
which
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does not constitute a violation of 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.
"Permitted Concept" means a X. Xxxxxxxxx'x restaurant.
"Person" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental Authority
or any other form of entity.
"Personal Property" means all tangible personal property now or at any
time hereafter located on or at any of the Properties or used in connection
therewith, including, without limitation, all trade fixtures, machinery,
appliances, furniture, equipment and inventory; provided, however, the term
"Personal Property" shall not include the HVAC, supply fans, exhaust fans, air
ducts, hoods, vents, built-in sinks, built-in countertops, plumbing and
electrical fixtures, sign poles and lighting poles, all of which items are
intended to be fixtures as such term is used within the definition of
"Properties".
"Prohibited Transaction" has the meaning set forth in Section 27.B.
"Properties" means, collectively, the parcels of real estate described
by address, FFC Number and Unit Number in Exhibit A attached hereto and legally
described in Exhibit A-1 attached hereto, all rights, privileges and
appurtenances associated therewith, and all buildings, fixtures and other
improvements now or hereafter located on such real estate (whether or not
affixed to such real estate).
"Property" means any one of the Properties.
"Questionnaires" means the environmental questionnaires completed on
behalf of Lessor with respect to the Properties and submitted to Environmental
Insurer in connection with the issuance of the Environmental Policies.
"Release" means any release, deposit, discharge, emission, leaking,
spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping,
dumping, disposing or other movement of Hazardous Materials.
"Remediation" means any response, remedial, removal, or corrective
action, any activity to clean up, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Materials or USTs required by any Environmental Law or
any Governmental Authority, 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 or USTs.
"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.
"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.
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"Transfer" means one or more sales, transfers or assignments by Lender
or any Affiliate of Lender to a third party of notes evidencing obligations to
repay secured or unsecured loans owned by Lender or any Affiliate of Lender or
any or all servicing rights with respect thereto.
"UCC" shall have the meaning described in Section 30.
"U.S. Publicly-Traded Entity" is an Entity whose securities are listed
on a national securities exchange or quoted on an automated quotation system in
the U.S. or a wholly-owned subsidiary of such an Entity.
"USTs" means any one or combination of below or above ground tanks and
associated piping systems used in connection with the storage, dispensing and
general use of petroleum and petroleum-based substances.
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. MASTER LEASE CHARACTERIZATION. 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;
(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
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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.
X. Xxxxxx and Lessee stipulate and agree that (i) the Base
Annual Rental is the fair market rent 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.
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.
4. LEASE TERM. The Lease Term for all of the Properties shall
commence as of the Effective Date and shall expire on April 30, 2023, unless
terminated sooner as provided in this Lease. 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. All sums of money required to be paid by Lessee under this
Lease which are not specifically referred to as rent ("Additional Rental")
shall be considered rent 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.
6. REPRESENTATIONS AND WARRANTIES OF LESSEE. The representations
and warranties of Lessee contained in this Section are being made to induce
Lessor to enter into this Lease and Lessor has relied, and will continue to
rely, upon such representations and warranties. Lessee represents and warrants
to Lessor as of the Effective Date as follows:
A. Organization, Authority and Status. (i) Each of the Lessee
Parties (other than individuals), as applicable, is duly organized or formed,
validly existing and in good standing under the laws of its state of
incorporation or formation. Lessee is qualified as a foreign corporation,
partnership or limited liability company, as applicable, to do business in each
state where the Properties are located, and each of the Lessee Parties is
qualified as a foreign corporation, partnership or limited liability company,
as applicable, to do business in any other jurisdiction where the failure to be
qualified would reasonably be expected to result in a Material Adverse Effect.
All necessary 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. The person(s) who have executed this Lease on
behalf of Lessee are duly authorized to do so. Lessee is not a "foreign
corporation", "foreign partnership", "foreign trust", "foreign estate" or
"foreign person" (as those terms are defined in the Internal Revenue Code of
1986, as amended). Lessee's U.S. Federal Tax Identification number,
Organization Identification number and principal place of business are
correctly set forth on the signature page of this Lease. None of the Lessee
Parties, and no individual or entity owning directly or indirectly any interest
in any of the Lessee Parties, is an individual or entity whose property or
interests are subject to being blocked under any of the OFAC Laws and
Regulations or is otherwise in violation of any of the OFAC Laws and
Regulations; provided, however, the representation contained in this sentence
shall not apply to any Person to the extent such Person's interest is in or
through a U.S. Publicly-Traded Entity.
B. Enforceability. Upon execution by Lessee, this Lease shall
constitute the legal, valid and binding obligation of Lessee, enforceable
against Lessee in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, liquidation, reorganization
and other laws affecting the rights of creditors generally and general
principles of equity.
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C. Litigation. There are no suits, actions, proceedings or
investigations pending or, to its knowledge, threatened against or involving
the Lessee Parties or any of the Properties before any arbitrator or
Governmental Authority, except for such suits, actions, proceedings or
investigations which, individually or in the aggregate, have not had, and would
not reasonably be expected to result in, a Material Adverse Effect.
D. Absence of Breaches or Defaults. The Lessee Parties are not,
and the authorization, execution, delivery and performance of this Lease and
the documents, instruments and agreements provided for herein will not result
in, any breach or default under any document, instrument or agreement to which
any of the Lessee Parties is a party or by which any of the Lessee Parties, any
of the Properties or any of the property of any of the Lessee Parties is
subject or bound, except for such breaches or defaults which, individually or
in the aggregate, have not had, and would not reasonably be expected to result
in, a Material Adverse Effect. 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. None of the Properties are subject to any
right of first refusal, right of first offer or option to purchase or lease
granted to a third party. Lessee has not assigned, transferred, mortgaged,
hypothecated or otherwise encumbered this Lease or any rights hereunder or
interest herein.
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.
F. Licenses and Permits; Access. All required licenses and
permits, both governmental and private, to use and operate each of the
Properties as a Permitted Concept are in full force and effect, except for such
licenses and permits the failure of which to obtain has not had, and would not
reasonably be expected to result in, a Material Adverse Effect. Adequate rights
of access to public roads and ways are available to each of the Properties for
unrestricted ingress and egress and otherwise to permit utilization of each of
the Properties for their intended purposes, and all such public roads and ways
have been completed and dedicated to public use.
G. Condition of Properties. Each of the Properties, including
the Personal Property, is in good condition and repair and well maintained,
ordinary wear and tear excepted, fully equipped and operational, free from
structural defects and properly lighted.
H. Utilities. Adequate public utilities are available at each of
the Properties to permit utilization of each of the Properties as a Permitted
Concept and all utility connection fees and use charges will have been paid in
full.
I. Area Development; Wetlands. No condemnation or eminent domain
proceedings affecting any of the Properties have been commenced or, to Lessee's
knowledge, are contemplated. None of the Properties and, to Lessee's knowledge,
none of the real property bordering any of the Properties are designated by any
Governmental Authority as a wetlands.
J. Financial Information. Lessee has delivered to Lessor and/or
Lender profit and loss statements for the business conducted at each of the
Properties (the "P&L Statements") and consolidated financial statements of the
Lessee Parties and their consolidated Affiliates (the "Consolidated
Statements"; the P&L Statements and the Consolidated Statements are
collectively referred to as, the "Financial Information"). The Consolidated
Statements were prepared in accordance with GAAP and fairly present as of the
date of such statements the financial condition of the entities to which they
pertain. The P&L Statements were prepared from the consolidated financial
records of the Lessee Parties and do not include charges or allocations for
general and administrative expenses (including management training and
relocation costs), interest expense, income taxes, and other income and expense
items which are not classified by the Lessee Parties as restaurant-level items.
The Financial Information (as prepared above) is true, correct and complete in
all material respects; there have been no material amendments to the Financial
Information since the date such Financial Information was prepared or delivered
to Lessor and/or Lender. Lessee understands that Lessor is relying upon the
Financial Information and Lessee represents that such reliance is reasonable.
No change has occurred with respect to the financial condition of Lessee and/or
the Properties which has not been disclosed in writing to Lessor and Lender and
which has had, or could reasonably be expected to result in, a Material Adverse
Effect.
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K. Zoning; Compliance With Laws. To the Lessee Parties'
knowledge, each of the Properties is in compliance in all material respects
with all applicable zoning requirements, and the use of each of the Properties
as a Permitted Concept does not constitute a nonconforming use under applicable
zoning requirements. To the Lessee Parties' knowledge, the Lessee Parties and
the Properties are in compliance with all Applicable Regulations except for
such noncompliance which has not had, and would not reasonably be expected to
result in, a Material Adverse Effect.
L. Environmental. Except as disclosed in the Questionnaires:
(1) None of the Properties nor any of the Lessee Parties are in
violation of, or subject to, any pending or, to Lessee's actual knowledge,
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, pertaining to any of the Properties and known to the
Lessee Parties;
(2) All permits, licenses or similar authorizations required 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;
(3) No Hazardous Materials have been used, handled, manufactured,
generated, produced, stored, treated, processed, transferred, disposed of or
otherwise Released by the Lessee Parties or, to the Lessee Parties' knowledge,
any other party, in, on, under, from or about any of the Properties, except in
Permitted Amounts;
(4) None of the Properties contain Hazardous Materials, except in
Permitted Amounts, and all USTs located on or about the Properties, if any, are
in full compliance with all Environmental Laws;
(5) To the Lessee Parties' knowledge, there is no threat of any
Release migrating to any of the Properties in excess of Permitted Amounts;
(6) There is no past (to the Lessee Parties' knowledge) or
present non-compliance with Environmental Laws, or with permits issued pursuant
thereto, in connection with any of the Properties;
(7) None of the Lessee Parties has received any written or oral
notice or other communication from any person or entity (including but not
limited to a Governmental Authority) relating to Hazardous Materials or USTs or
Remediation thereof in excess of Permitted Amounts, 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;
(8) All information known to any of the Lessee Parties or
contained in the files of any of the Lessee Parties relating to any
Environmental Condition or Releases of Hazardous Materials in, on, under or
from any of the Properties, other than in Permitted Amounts, has been provided
to Lessor, including, without limitation, information relating to all prior
Remediation;
(9) All of the Properties are free and clear of all liens and
other encumbrances imposed pursuant to any Environmental Law (the
"Environmental Liens"); and none of the Lessee Parties has allowed any tenant
or other user of any of the Properties to do 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 any of the Properties),
impaired the value of any of the Properties in any material respect, is
contrary to any requirement of any insurer, constituted a public or private
nuisance, constituted waste, or violated any covenant, condition, agreement or
easement applicable to any of the Properties; and
(10) The information and disclosures in the Questionnaires are
true, correct and complete in all material respects, and the person or persons
executing the Questionnaires were duly authorized to do so.
9
M. No Mechanics' Liens. There are no delinquent accounts payable
or mechanics' liens in favor of any materialman, laborer, or any other person
or entity in connection with labor or materials furnished to or performed on
any portion of the Properties; and no work has been performed or is in progress
nor have materials been supplied to the Properties or agreements entered into
for work to be performed or materials to be supplied to the Properties prior to
the Effective Date, which will be delinquent on or before the Effective Date.
N. Title to Personal Property. Lessee is the owner of all
Personal Property (other than the Leased Personal Property), free and clear of
all liens, encumbrances, charges and security interests of any nature
whatsoever, except the liens created by the Lease, and no Affiliate of Lessee
owns any of the Personal Property. Upon the execution and delivery of this
Lease, Lessor shall have a first priority lien upon and security interest in
the Personal Property.
O. Money Laundering. (1) Lessee has taken all reasonable
measures, in accordance with all applicable Anti-Money Laundering Laws, with
respect to each holder of a direct or indirect interest in the Lessee Parties,
to assure that funds invested by such holders in the Lessee Parties are derived
from legal sources; provided, however, none of the foregoing shall apply to any
Person to the extent that such Person's interest is in or through a U.S.
Publicly-Traded Entity.
(2) To Lessee's knowledge after making due inquiry, neither any
of the Lessee Parties nor any holder of a direct or indirect interest in the
Lessee Parties (a) is under investigation by any Governmental Authority for, or
has been charged with or convicted of, any violation of any Anti-Money
Laundering Laws, or drug trafficking, terrorist-related activities or other
money laundering predicated crimes or a violation of the BSA, (b) has been
assessed civil penalties under these or related laws, or (c) has had any of its
funds seized or forfeited in an action under these or related laws; provided,
however, none of the foregoing shall apply to any Person to the extent that
such Person's interest is in or through a U.S. Publicly-Traded Entity.
(3) Lessee has taken reasonable steps, consistent with industry
practice for comparable organizations and in any event as required by law, to
ensure that the Lessee Parties are and shall be in compliance with all (i)
Anti-Money Laundering Laws and (ii) OFAC Laws and Regulations.
7. NONCONSOLIDATION; TRANSFER, PARTICIPATION AND SECURITIZATION;
COMPLIANCE CERTIFICATES. Lessee covenants to Lessor for so long as this Lease
is in effect as follows:
A. Nonconsolidation Covenants. (i) The annual financial
statements of Lessee, including consolidated financial statements, if any,
shall contain notes stating that (a) all of Lessor's assets are owned by Lessor
and (b) Lessor is a separate entity with its own separate creditors which will
be entitled to be satisfied out of Lessor's assets.
(ii) 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.
(iii) 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
except that Lessor may be included in Lessee's or its affiliates' reports under
the Securities Exchange Act of 1934, as amended, and its and their consolidated
financial statements, as appropriate, provided such statements adequately
disclose the separate legal existence of Lessor, the separate ownership by
Lessor of the Properties and the separate liabilities of Lessor.
(iv) 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.
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(v) Lessee will not act in Lessor's name.
(vi) Where necessary and appropriate, Lessee shall disclose the
independent business status of Lessor to creditors of Lessee, if any.
(vii) The resolutions, agreements and other instruments of Lessee,
if any, underlying the transactions described in this Lease will be maintained
by Lessee.
(viii) All transactions between Lessee and Lessor will be no less
fair to each party than they could obtain on an arm's-length basis.
(ix) 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.
(x) Lessee will not direct, or otherwise control, the ongoing
business decisions of Lessor.
(xi) Lessee will not file or cause to be filed a voluntary or
involuntary petition in bankruptcy on behalf of or against Lessor, nor seek
substantive consolidation of the assets and liabilities of Lessor and Lessee in
any bankruptcy or insolvency proceeding during the Lease Term and for a period
of 91 days after the Lease Term.
B. Transfer, Participation and/or 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 the Lessee
Parties 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, the Lessee Parties 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 the
Lessee Parties or the transactions contemplated by this Lease. Lessor shall be
responsible for causing Lender to prepare at Lender's expense any documents
evidencing the amendments referred to in the preceding subitem (Y).
(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 respect to the Properties or the financial
condition of the Lessee Parties to each purchaser, transferee, assignee,
servicer, participant, investor or rating agency involved with respect to such
Transfer, Participation and/or Securitization, as applicable; provided that, to
the extent any of the Disclosures have been designated by Lessee upon their
delivery as containing confidential information, Lessor or Lender, as
applicable, shall advise each such recipient of the confidential nature of such
information. 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 7.B; provided, however, in no event shall Lessee be required to
incur out-of-pocket expenses in excess of $10,000 pursuant to this Section.
C. Compliance Certificate. Within 90 days after the end of each
fiscal year of Lessee, Lessee shall deliver a compliance certificate to Lessor
in a form to be provided by Lessor in order to establish that Lessee is in
compliance in all material respects with all of its obligations, duties and
covenants under this Lease.
8. 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.
9. 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
11
arising with respect to Lessor, any of the Properties, this Lease, the rental or
other payments due under this Lease or Lessee 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 Personal Property, 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 (i)
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 (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 which does not take into account deductions from
depreciation, interest, taxes and/or ordinary or necessary business expenses) of
Lessor, (ii) any transfer taxes of Lessor, (iii) 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 or the termination of this Lease pursuant to the provisions
of this Lease), or (iv) any taxes or assessments imposed upon Lessor that are
not related to the Properties, the Personal Property, this Lease, 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.
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, 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) Lessee shall provide written notice to Lessor of any contest involving more
than $10,000.00, (ii) such proceeding shall suspend the collection thereof from
the applicable Properties or any interest therein, (iii) neither such Properties
nor any interest therein would be in any danger of being sold, forfeited or lost
by reason of such proceedings, (iv) no Event of Default has occurred and is
continuing, and (v) if requested by Lessor or Lender, 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 insure payment of any contested taxes.
10. 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.
11. 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
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covered by a standard extended coverage endorsement, 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 insurance, including a products
liability clause, covering Lessor and Lessee against bodily injury liability,
property damage liability and automobile bodily injury and property damage
liability, including without limitation any liability arising out of the
ownership, maintenance, repair, condition or operation of the Properties or
adjoining ways, streets or sidewalks and, if applicable, insurance covering
Lessor 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
"severability of interest" clause or endorsement which precludes the insurer
from denying the claim of Lessee or Lessor because of the negligence or other
acts of the other, shall be in amounts of not less than $1,000,000.00 per injury
and occurrence with respect to any insured liability, whether for personal
injury or property damage, or such higher limits as Lessor may reasonably
require from time to time, and shall be of form and substance satisfactory to
Lessor.
C. Business income insurance or rental interruption insurance, as
requested by Lessor, equal to 100% of the Base Annual Rental for a period of not
less than six months.
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 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 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, Lender and their respective employees and agents and
provide that such insurance cannot be unreasonably cancelled, invalidated or
suspended on account of the conduct of Lessee, its officers, directors,
employees or agents;
(ii) Provide that any "no other insurance" clause in the insurance
policy shall exclude any policies of insurance maintained by Lessor or Lender
and that the insurance policy shall not be brought into contribution with
insurance maintained by Lessor or Lender;
(iii) Contain a standard without contribution mortgage clause
endorsement in favor of Lender and its successors and assigns as their interests
may appear 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, 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 Best's Insurance Guide or are otherwise approved by Lessor; and
(vii) Provide that the insurer shall not deny a claim because of the
negligence of Lessee, anyone acting for Lessee or any tenant or other occupant
of any of the Properties.
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 liability insurance policies (with the
exception of worker's compensation insurance to the extent not available under
statutory law), shall designate
13
Lessor and Lender and their respective successors and assigns as additional
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 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 and Lender certificates of
insurance or, upon the request of Lessor 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 any of the Properties or any financing or refinancing of
Lessor's interest in any of the Properties, Lessee shall, upon not less than ten
(10) days' prior written notice, deliver to Lessor 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.
12. TAX AND INSURANCE IMPOUND. Upon the occurrence of an 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 (as such amounts become due). 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. 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 impound account.
If an Event of Default shall occur subsequent to Lessor requiring the
establishment of an impound account pursuant to this Section, Lessor may apply
all impounded funds (including any interest) against any sums due from Lessee to
Lessor. Lessor shall give to Lessee an annual accounting showing all credits and
debits to and from such impounded funds received from Lessee. Upon the
expiration or termination of this Lease and provided that all amounts due and
owing to Lessor under this Lease have been paid in full, the remaining balance
of the impound account will be returned to Lessee.
13. 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 authorize Lessor to establish arrangements whereby payments of the
Base Monthly Rental and impound payments, if any, are transferred by Automated
Clearing House Debit initiated by Lessor or its designee directly from an
account at a U.S. bank in the name of Lessee to such account as Lessor may
designate or as Lessor may otherwise designate; provided, however, upon notice
from Lender to Lessee and Lessor delivered in the manner set forth in Section
28, Lessee shall deliver all payments of Base Monthly Rental as specified in
such notice from Lender. 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.
14. USE. Except as set forth below, each of the Properties shall
be used solely for the operation of a Permitted Concept and for no other
purpose. Lessee shall occupy the Properties commencing on 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 diligently operate its business on each of the
Properties. Lessee may cease diligent operation of business at any of the
Properties for a period not to exceed 90 days and may do so only once with
respect to each Property within any five-year period during the Lease Term. 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
14
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 an alternative use
during the Lease Term without Lessor's consent, which consent shall not be
unreasonably withheld or delayed. Lessor 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.
15. COMPLIANCE WITH LAWS GENERALLY. 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 now or hereafter in effect and all restrictions, covenants and
encumbrances of record with respect to each of the Properties. In addition, the
Lessee Parties shall comply in all material respects with all Applicable
Regulations now or hereafter in effect, including, without limitation, the OFAC
Laws and Regulations and Anti-Money Laundering Laws. Without limiting the
generality of the other provisions of this Section, Lessee shall comply in all
material respects with the ADA, and all regulations promulgated thereunder, as
it affects each of the Properties.
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. Lessee shall maintain in full force and effect all licenses
and permits, both governmental and private, required to use and operate the
Properties as a Permitted Concept.
16. COMPLIANCE WITH ENVIRONMENTAL LAWS. Lessee covenants to Lessor
and Environmental Insurer for so long as this Lease is in effect that:
(1) The Properties, the Lessee Parties and any other operator or
user of any of the Properties shall not be in violation in any material respect
of any Environmental Laws or any investigation or inquiry by any Governmental
Authority or subject to any Remediation obligations under any Environmental
Laws.
(2) All uses and operations on or of each of the Properties,
whether by Lessee or any other person or entity, shall be in compliance with all
Environmental Laws and permits issued pursuant thereto.
(3) There shall be no Releases or Hazardous Materials in, on,
under or from any of the Properties, except in Permitted Amounts.
(4) Lessee shall keep each of the Properties, or cause each of the
Properties to be kept, free and clear of all Environmental Liens.
(5) Lessee shall not do or allow any tenant or other user of any
of the Properties to do any act that (a) materially increases the dangers to
human health or the environment, (b) impairs or is reasonably likely to impair
the value of any of the Properties in any material respect, (c) is contrary in
any material respect to any requirement of any insurer, (d) constitutes a public
or private nuisance or constitutes waste, or (e) violates any covenant,
condition, agreement or easement applicable to any of the Properties in any
material respect.
(6) Lessee shall immediately notify Lessor in writing upon Lessee
obtaining actual knowledge of:
15
(a) any presence of Releases or Threatened Releases in,
on, under, from or migrating towards any of the Properties, in excess
of Permitted Amounts, including, without limitation, the presence on or
under any of the Properties, or the escape, seepage, leakage, spillage,
discharge, emission or release from any USTs on, above or under any of
the Properties, of any Hazardous Materials, apparent or real, in excess
of Permitted Amounts;
(b) any non-compliance with any Environmental Laws
related in any way to any of the Properties;
(c) any Environmental Lien or any act or omission which
could reasonably be expected to result in the imposition of an
Environmental Lien;
(d) any required or proposed Remediation of environmental
conditions relating to any of the Properties, including, without
limitation, any and all enforcement, clean-up, remedial, removal or
other governmental or regulatory actions threatened, instituted or
completed pursuant to any of the Environmental Laws affecting any of
the Properties;
(e) any written or oral notice or other communication of
which any of the Lessee Parties becomes aware from any source
whatsoever (including but not limited to a Governmental Authority)
relating in any way to Hazardous Materials, USTs or Remediation
thereof, 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 anything referred to in this
Lease; or
(f) any investigation or inquiry initiated by any
Governmental Authority relating to the Environmental Condition of any
of the Properties.
(7) Lessee shall, at its sole cost and expense:
(a) perform any environmental site assessment (but not
more than one per year per Property) 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 other
Indemnified Parties shall be entitled to rely on such reports and other
results thereof; and
(b) have the Properties inspected as may be required by
any Environmental Laws for seepage, spillage and other environmental
concerns. If any USTs are located at any of the Properties, Lessee
shall maintain and monitor such USTs in accordance with all
Environmental Laws. Lessee shall provide Lessor with written certified
results of all inspections performed on any of the Properties. All
costs and expenses associated with the inspection, preparation and
certification of results, as well as those associated with any
corrective action, shall be paid by Lessee. All inspections and tests
performed on any of the Properties shall be conducted in compliance
with all Environmental Laws.
(8) Lessee shall, at its sole cost and expense, and without
limiting the rights of Lessor under any other provision of this Lease, comply
with all reasonable written requests of Lessor to:
(a) reasonably effectuate Remediation of any condition
(including but not limited to a Release) in, on, under or from any of
the Properties;
(b) comply with any Environmental Law;
(c) comply with any directive from any Governmental
Authority; and
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(d) take any other reasonable action necessary or
appropriate for protection of human health or the environment.
(9) Lessor, Lender, Environmental Insurer 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 any of the
Properties (upon reasonable prior notice) during normal business hours or at any
time (and without prior notice) in the event of an emergency (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 any 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.
Lessee shall cooperate with and provide access to Lessor, Lender, Environmental
Insurer and any other person or entity designated by Lessor. Any such assessment
and investigation shall be at Lessee's sole cost and expense if, at the time
such assessment or investigation is undertaken, the party conducting the
assessment or investigation has a reasonable basis for believing that a Release
has occurred at any of the Properties in excess of Permitted Amounts or if an
Event of Default has occurred and is continuing. Otherwise, any such assessment
and investigation shall be at the sole cost and expense of the party conducting
such assessment and investigation.
The obligations of Lessee and the rights and remedies of Lessor under
this Section shall survive the termination, expiration and/or release of this
Lease.
17. CONDITION OF PROPERTIES; MAINTENANCE. Lessee shall (i)
maintain each of the Properties in good condition and repair, subject to
reasonable and ordinary wear and tear, free from actual or constructive waste,
(ii) operate, remodel, update and modernize each of the Properties in accordance
with those standards adopted from time to time by Lessee on a system-wide basis
for Permitted Concepts, with such remodeling and modernizing being undertaken in
accordance with Lessee's system-wide timing schedules for such activities, and
(iii) pay all operating costs of the Properties in the ordinary course of
business. 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. ALTERATIONS AND IMPROVEMENTS. Lessee shall not alter the
exterior, structural, plumbing or electrical elements of any of the Properties
in any manner without the consent of Lessor, which consent shall not be
unreasonably withheld or conditioned; provided, however, without Lessor's
consent, Lessee may undertake such alterations to any of the Properties which
(i) cost less than $250,000 per Property for any related series of alterations
and (ii) do not affect the foundation or "footprint" of the improvements at the
Properties. For purposes of this Lease, alterations to the exterior, structural,
plumbing or electrical elements of the Properties shall mean:
(i) alterations which affect the foundation or "footprint" of the
improvements at the Properties;
(ii) alterations which involve the structural elements of the
improvements at the Properties, such as a load-bearing wall, structural beams,
columns, supports or roof; or
(iii) alterations which materially affect any of the building
systems, including, without limitation, the electrical systems, plumbing, HVAC
and fire and safety systems.
If Lessor's consent is required hereunder and Lessor consents to the making of
any such alterations, the same shall be made by Lessee at Lessee's sole expense
by a licensed contractor and according to plans and specifications approved by
Lessor (such approval not to be unreasonably withheld or delayed) and subject to
such other conditions as Lessor shall reasonably require. 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 alterations for which
Lessor's consent is required hereunder, Lessee shall promptly provide Lessor
with (i) evidence of full payment to all laborers and materialmen contributing
to the alterations, (ii) a certificate of occupancy (if the alterations are of
such a nature as would require the issuance of a
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certificate of occupancy), and (iii) any other documents or information
reasonably requested by Lessor. Any addition to or alteration of any of the
Properties 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. A. 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 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
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 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 9,
(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 9, and (10) the sale of liquor, beer or wine on any of the Properties.
B. 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:
(1) any presence of any Hazardous Materials or USTs in, on, above,
or under any of the Properties;
(2) any past, present or Threatened Release in, on, above, under
or from any of the Properties;
(3) any activity by Lessee, any person or entity affiliated with
Lessee or any 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 or
USTs at any time located in, under, on or above any of the Properties;
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(4) any activity by Lessee, any person or entity affiliated with
Lessee or any tenant or other user of any of the Properties in connection with
any actual or proposed Remediation of any Hazardous Materials or USTs 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;
(5) any past, present or threatened non-compliance or violations
of any Environmental Laws (or permits issued pursuant to any Environmental Law)
in 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 tenant or other user of any of the Properties to comply with any
order of any Governmental Authority in connection with any Environmental Laws;
(6) the imposition, recording or filing or the threatened
imposition, recording or filing of any Environmental Lien encumbering any of the
Properties;
(7) any administrative processes or proceedings or judicial
proceedings in any way connected with any matter addressed in this Lease;
(8) 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;
(9) any acts of Lessee, any person or entity affiliated with
Lessee or any tenant or other 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 or USTs owned or possessed by
Lessee, any person or entity affiliated with Lessee or any tenant or other user,
at any facility or incineration vessel owned or operated by another person or
entity and containing such or similar Hazardous Materials or USTs;
(10) any acts of Lessee, any person or entity affiliated with
Lessee or any tenant or other user of any of the Properties, in accepting any
Hazardous Materials or USTs for transport to disposal or treatment facilities,
incineration vessels or sites selected by Lessee, any person or entity
affiliated with Lessee or any tenant or other 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;
(11) any personal injury, wrongful death, or property damage
arising under any statutory or common law or tort law theory, 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; or
(12) any misrepresentation or inaccuracy in any representation or
warranty or material breach or failure to perform any covenants or other
obligations pursuant to this Lease.
C. 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 material damage to or
destruction of any of the Properties or any part thereof ("Casualty"), Lessee
will promptly give written notice thereof to Lessor, generally describing the
nature and extent of such Taking, proceedings,
19
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 the whole of any of the
Properties, other than for temporary use, or (ii) a Taking of a substantial
portion 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 Concept would be uneconomic
(each of (i) and (ii), a "Total Taking"), the obligations of Lessee with respect
to such Property only shall terminate as of the date of the Total Taking, but
this Lease shall otherwise continue in full force and effect with respect to the
remaining Properties. From and after the date of a Total Taking, the Base Annual
Rental shall be reduced by an amount equal to the product of (i) the Applicable
Rent Reduction Percentage for the Property subject to the Total Taking, and (ii)
the Base Annual Rental in effect as of the date of such Total Taking (the
"Adjustment"). If the date of such Total Taking is other than the first day of a
month, the Base Annual Rental payable for the month in which such Total Taking
occurs shall be apportioned based on such Adjustment as of the date of the Total
Taking. Lessee's obligations to Lessor under Section 19 of this Lease with
respect to such Property and Lessee's obligation to pay all other sums of money
under this Lease (whether payable to Lessor or to a third-party) which accrue
prior to the date of such Total Taking shall survive the partial termination of
this Lease with respect to such Property. A Total Taking shall include a Taking,
other than for a temporary use, of such a substantial part of any Property as
shall result in the portion of such Property remaining after such Taking being
unsuitable for use as a Permitted Concept. Lessor shall be entitled to receive
the entire award or payment in connection with a Total Taking 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 or
payment and agrees that Lessee shall not be entitled to any award or payment for
the value of Lessee's leasehold interest in this Lease. Notwithstanding the
foregoing, Lessee shall be entitled to claim and receive any award or payment
from the condemning authority expressly granted for the taking of Personal
Property, 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.
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. Except as provided below and subject
to the terms and provisions of the Mortgages, Lessee shall be entitled to the
entire award for a Temporary Taking, whether paid by damages, rent or otherwise,
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 award made
for such Taking shall be apportioned between Lessor and Lessee as of the date of
such expiration. At the termination of any such Temporary Taking, Lessee will,
at its own cost and expense and pursuant to the terms of Section 18 above,
promptly commence and complete the restoration of the Property affected by such
Temporary Taking.
D. In the event of a Taking which is not a Total Taking or a
Temporary Taking ("Partial Taking") or of a 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 Lessor
shall have obtained Lender's prior written consent, by notifying Lessee within
60 days after Lessee gives Lessor notice of such 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 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 Lessor
under any indemnification provisions of this Lease with respect to such Property
(including, without limitation, Section 19) and Lessee's obligations to pay Base
Annual Rental, Additional Rental and all other sums (whether
20
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),
the Base Annual Rental shall be reduced by an amount equal to the product of (i)
the Applicable Rent Reduction Percentage for such Property and (ii) the Base
Annual Rental in effect as of the date of such Partial Taking or Casualty, and
Lessor may retain all such awards, compensation or damages. This 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 Casualty as approved
by Lessor. Subject to the terms and provisions of the Mortgages, 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. Prior to the disbursement of any portion of the Net
Restoration Amount with respect to a 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 Casualty.
Lessor shall be entitled to keep any portion of the Net Restoration Amount which
may be in excess of the cost of restoration, 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 Casualty, simultaneously with such termination Lessee shall pay
Lessor an amount equal to the insurance deductible applicable to such Casualty.
E. Any loss under any property damage insurance required to be
maintained by Lessee shall be adjusted by Lessor and Lessee. Subject to the
terms and provisions of the Mortgages, any award relating to a Total Taking or a
Partial Taking shall be adjusted by Lessor and Lessee. Notwithstanding the
foregoing or any other provisions of this Section to the contrary but subject to
the terms and provisions of the Mortgages, if at the time of any Taking or any
Casualty or at any time thereafter an Event of Default shall have occurred and
be continuing 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 default and
any other then existing 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 reasonable prior notice, during normal business hours (or
at any time in the event of an emergency) to enter any of the Properties or any
part thereof at reasonable times 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. Lessee's books and records shall at all times be open for
inspection 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.
21
23. FUNDED DEBT/EBIDTA RATIO. Lessee covenants to Lessor for so
long as this Lease is in effect that Lessee and its consolidated Affiliates
(collectively, the "Lessee Entities") shall maintain a Funded Debt to EBITDA
ratio not to exceed 6.00 to 1.0, determined as of the last day of each fiscal
year of Lessee.
For purposes of this Section, 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 lease would, in conformity with GAAP, be required to be accounted for as a
capital lease on the balance sheet of Lessee or any of the other Lessee
Entities, as applicable. The term "Capital Lease" shall not include any
operating lease.
"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.
"EBITDA" shall mean the sum of Net Income, Interest Expense and
Depreciation and Amortization.
"Funded Debt" shall mean all non-contingent debts of Lessee and the
other Lessee Entities, collectively, for borrowed money for which consideration
then has been received.
"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 material 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 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.
24. 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;
(ii) If any rent or other monetary sum due under this Lease is not
paid within five days after 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;
(iii) Subject to the provisions of Section 9, 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 pursuant to Applicable Regulations; provided, however,
notwithstanding the occurrence of such an Event of Default, Lessor shall not be
entitled to exercise its rights and remedies set forth below unless and until
Lessor
22
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;
(iv) If any of the Lessee Parties 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, an "Action"), becomes the subject of either a petition under the
Code or an Action which is not stayed or dismissed 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 14 of this Lease;
(vi) If Lessee shall fail to maintain insurance in accordance with
the requirements of Section 11 of this Lease; provided, however, notwithstanding
the occurrence of such an Event of Default, Lessor shall not be entitled to
exercise its rights and 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;
(vii) If Lessee fails to observe or perform any of the other
covenants, 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;
(viii) 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
of the Other Agreements; or
(ix) If a final, nonappealable judgment is rendered by a court
against any of the Lessee Parties which (i) has a material adverse effect on the
operation of any of the Properties as a Permitted Concept, or (ii) is in an
amount greater than $100,000.00 and not covered by insurance, and, in either
case, is not discharged or provision made for such discharge within 60 days from
the date of entry of such judgment.
B. Upon the occurrence of an Event of Default, with or without
notice or demand, except the notice prior to default required under certain
circumstances by subsection A. above or such other 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, any or all Personal Property located on or at any or all of the
Properties in which Lessor shall have a landlord's lien and/or security
interest, 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
23
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 seize all Personal Property located on or at any or all of
the Properties, in which Lessor shall have a landlord's lien and/or security
interest, and to dispose thereof in accordance with the laws prevailing at the
time and place of such seizure or to remove all or any portion of the Personal
Property and cause the same to be stored in a public warehouse or elsewhere at
Lessee's sole expense, without becoming liable for any loss or damage resulting
therefrom and without resorting to legal or judicial process, procedure or
action.
(iv) To 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.
(vi) To recover from Lessee all rent and other monetary sums then
due and owing under this Lease.
(vii) To accelerate and recover from Lessee 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 less any proceeds
received from any reletting of any of the Properties pursuant to clause (v)
above.
(viii) 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.
(ix) 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.
(x) 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.
(xi) To exercise its rights under the License Agreement.
(xii) To seek any equitable relief available to Lessor, including,
without limitation, the right of specific performance.
24
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, 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.
25. LIENS; MORTGAGES, SUBORDINATION 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, UNLESS LESSOR'S PRIOR WRITTEN CONSENT IS OBTAINED,
LESSEE IS NOT AUTHORIZED TO PLACE OR ALLOW TO BE PLACED ANY LIEN, MORTGAGE, DEED
OF TRUST, DEED TO SECURE DEBT, SECURITY INTEREST OR ENCUMBRANCE OF ANY KIND UPON
ALL OR ANY PART OF ANY OF THE PROPERTIES, THE PERSONAL PROPERTY OR LESSEE'S
LEASEHOLD INTEREST IN THE PROPERTIES, AND ANY SUCH PURPORTED TRANSACTION SHALL
BE VOID. FURTHERMORE, ANY SUCH PURPORTED TRANSACTION SHALL BE DEEMED A TORTIOUS
INTERFERENCE WITH LESSOR'S RELATIONSHIP WITH LESSEE AND LESSOR'S OWNERSHIP OF
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, deeds to
secure debt and trust deeds 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, deeds to secure debt or trust
deeds as shall be desired by Lessor, or any present or proposed mortgagees or
lenders under deeds to secure debt or trust deeds.
If any landlord, mortgagee, receiver, Lender or other secured party
validly exercises its right to elect to have this Lease and the interest of
Lessee hereunder be superior to any of the Mortgages or any such ground lease,
mortgage, deed to secure debt or trust deed and evidences such election by
written notice given to Lessee, then this Lease and the interest of Lessee
hereunder shall be deemed superior to any such Mortgage, ground lease, mortgage,
deed to secure debt or trust deed, whether this Lease was executed before or
after such Mortgage, ground lease, mortgage, deed to secure debt or trust deed
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, deed to secure debt or trust deed and had been assigned
to such landlord, mortgagee, receiver, Lender or other secured party.
Although the foregoing provisions shall be self-operative and no future
instrument of subordination shall be required, upon request by Lessor, Lessee
shall execute and deliver whatever instruments may be required for such
purposes, and in the event Lessee fails so to do within 10 days after demand,
Lessee does hereby make, constitute and irrevocably appoint Lessor as its agent
and attorney-in-fact and in its name, place and stead so to do, which
appointment shall be deemed coupled with an interest.
25
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, if the Successor Lessor in its sole discretion elects to recognize
Lessee's tenancy under this Lease, 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.
Lessee shall give written notice to any lender of Lessor having a
recorded lien upon any of the Properties or any part thereof of which Lessee has
been notified of any breach or default by Lessor of any of its obligations under
this Lease simultaneously with the giving of such notice to Lessor, and Lessee
shall give such lender at least 60 days from the date such notice is given
before Lessee may exercise any remedy with respect thereto. Upon request by
Lessor, Lessee shall also provide the most recent consolidated financial
statements of the Lessee Entities to Lessor or any such lender and certify the
continuing accuracy of such financial statements in such manner as Lessor or
such lender may reasonably request.
26. ESTOPPEL CERTIFICATE. A. At any time, and from time to time,
Lessee shall, promptly and in no event later than fifteen (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, and, if there are any such 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.
B. If Lessee shall fail or refuse to sign a certificate in
accordance with the provisions of this Section within fifteen (15) days
following a request by Lessor, Lessee irrevocably constitutes and appoints
Lessor as its attorney-in-fact to execute and deliver the certificate to any
such third party, it being stipulated that such power of attorney is coupled
with an interest and is irrevocable and binding; provided, however, that
Lessor's execution and delivery of such certificate on behalf of Lessee shall
not cure any default arising by reason of Lessee's failure to execute and
deliver such certificate.
27. ASSIGNMENT. A. If Lender shall succeed to the rights of Lessor
as landlord under this Lease, whether through foreclosure of the liens of the
Mortgages, deeds-in-lieu of foreclosure or otherwise, Lender, as lessor, shall
have the right to sell or convey 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. In the event of any such sale or assignment other than a
security assignment, 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 (provided, however, nothing in this Section 27 shall impose
liability on Lender or such purchaser or assignee, as lessor, for the
obligations of Lessor accruing under this Lease prior to the time Lender or such
purchaser or assignee, as the case may be, succeeds to Lessor's rights as lessor
under this Lease). Otherwise, and except as permitted pursuant to the Loan
Documents, Lessor shall not have the right to sell or convey the Properties or
to assign its right, title and interest as lessor under this Lease in whole or
in part.
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.
26
Without the prior written consent of Lessor: (i) Lessee shall not assign,
transfer, convey, pledge or mortgage this Lease or any interest therein,
whether by operation of law or otherwise; (ii) a majority of the voting stock
of Lessee shall not be transferred; and (iii) except as provided below, Lessee
shall not sublet all or any part of any of the Properties (each of items (i)
through (iii) are hereinafter referred to as a "Prohibited Transaction"). In
addition, no interest in any of the Lessee Parties, or in any individual or
person owning directly or indirectly any interest in any of the Lessee Parties,
shall be transferred, assigned or conveyed to any individual or person whose
property or interests are subject to being blocked under any of the OFAC Laws
and Regulations and/or who is in violation of any of the OFAC Laws and
Regulations, and any such transfer, assignment or conveyance shall not be
effective until the transferee has provided written certification to Lessor
that (A) the transferee or any person who owns directly or indirectly any
interest in transferee, is not an individual or entity whose property or
interests are subject to being blocked under any of the OFAC Laws and
Regulations or is otherwise in violation of the OFAC Laws and Regulations, and
(B) the transferee has taken reasonable measures to assure that any individual
or entity who owns directly or indirectly any interest in transferee, is not an
individual or entity whose property or interests are subject to being blocked
under any of the OFAC Laws and Regulations or is otherwise in violation of the
OFAC Laws and Regulations; provided, however, the covenant contained in this
sentence shall not apply to any Person to the extent that such Person's
interest is in or through a U.S. Publicly-Traded Entity.
Lessor's consent to a Prohibited Transaction shall be subject to the
satisfaction of such conditions as Lessor shall determine in its sole
discretion, including, without limitation, (i) Lessor having obtained the
consent of Lender to the Prohibited Transaction, (ii) Lessee having executed
and delivered such modifications to the terms of this Lease as Lessor shall
request, (iii) the Prohibited Transaction having been approved by each of the
rating agencies which have issued ratings in connection with any
Securitization, (iv) the proposed transferee, as applicable, having assumed
this Lease (as modified pursuant to clause (ii) above), (v) payment to Lessor
of any rentals owing under a sublease which are in excess of any rentals owing
under this Lease, and (vi) the proposed transferee having satisfactory
creditworthiness and satisfactory experience operating a Permitted Concept. In
addition, any such consent shall be conditioned upon the payment by Lessee to
Lessor of (x) a fee equal to one percent (1%) of the then outstanding principal
balance of the Notes and (y) all out-of-pocket costs and expenses incurred by
Lessor in connection with such consent, including, without limitation,
reasonable attorneys' fees. The provisions of this Section shall apply to every
Prohibited Transaction regardless of whether voluntary or not, or whether or
not Lessor has consented to any previous Prohibited Transaction. No assignment
of this Lease or subletting of any of the Properties shall relieve Lessee of
its obligations under this Lease or any guarantor of this Lease of any of its
obligations under its guaranty. Any Prohibited Transaction in violation of this
Section shall be voidable at the sole option of Lessor.
C. Notwithstanding the provisions of Section 27.B, Lessee shall
have the right to sublease any of the Properties to an Affiliate of Lessee,
without the prior written consent of Lessor or Lender, if each of the following
conditions are satisfied:
(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;
(4) the Properties subject to such subleases shall be
used as a Permitted Concept 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
28. 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) express
overnight delivery service or (iii) certified or registered mail, return
receipt requested, and shall be deemed to have been delivered upon (a) receipt,
if hand delivered, (b) the next Business Day, if delivered by express overnight
delivery service, or (c) 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: X. Xxxxxxxxx'x Restaurants, Inc.
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: R. Xxxxxxx Xxxxx
If to Lessor: JAX Real Estate, LLC
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: R. Xxxxxxx Xxxxx
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:
GE Capital Franchise Finance Corporation
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
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.
29. 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 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.
30. LANDLORD'S LIEN/SECURITY INTEREST. (a) Lessee agrees that
Lessor shall have a landlord's lien, and additionally hereby separately grants
to Lessor a first and prior security interest, in, on and against Lessee's
right, title and interest in and to the Personal Property, which lien and
security interest shall secure the payment of all rental and other charges
payable by Lessee to Lessor under the terms hereof and all other obligations of
Lessee to Lessor under this Lease. Except as contemplated by paragraph (b)
below, Lessee shall maintain title to the Personal Property (other than the
Leased Personal Property, which Lessee shall maintain a leasehold interest in
during the term of the corresponding equipment lease), free and clear of all
liens, encumbrances, charges and security interests of any nature whatsoever.
Lessee authorizes Lessor to file financing statements with respect to the
Personal Property, continuation statements with respect thereto, and any
amendments to such financing statements which may be necessitated by reason of
any of the changes described in the last sentence of this Section. Furthermore,
at any time, and from time to time, Lessee shall, promptly and in no event
later than fifteen (15) days after a request from Lessor, execute, acknowledge
and deliver to Lessor such financing statements and other documents as Lessor
may then deem appropriate or necessary to perfect and maintain said lien and
security interest. Lessee expressly acknowledges and agrees that, in addition
to any and all other rights and remedies of Lessor whether hereunder or at law
or in equity, in the event of any default of Lessee hereunder, Lessor shall
have any and all rights and remedies granted a secured party under the Uniform
Commercial Code then in effect in the state of Arizona and in the states
28
where the Properties are located (the "UCC"). Lessee represents that its exact
legal name and state of incorporation is as set forth in the first paragraph of
this Lease. Lessee shall preserve its current form of organization and shall
not change its legal name, its state of formation, nor, in one transaction or a
series of related transactions, merge with or into, or consolidate with, any
other entity without providing, in each case, Lessor with thirty (30) days'
prior written notice and obtaining Lessor's prior written consent (to the
extent such consent is required under Section 27 of this Lease). Lessee agrees
that, notwithstanding any provision in the UCC to the contrary, Lessee shall
not file a termination statement of any financing statement filed by Lessor in
connection with any security interest granted under this Lease if Lessor
reasonably objects to the filing of such termination statement.
(b) Lessee shall not remove or allow to be removed from the
Properties the Personal Property, or any part thereof, without the prior
written consent of Lessor; provided that, Lessor's prior written consent shall
not be required with respect to (i) Lessee selling inventory in the ordinary
course of its business, (ii) Lessee removing items of Personal Property from
the Properties to the extent they are no longer necessary, in Lessee's
reasonable business judgment, for the operation of a Permitted Concept, and
(iii) Lessee removing items of Personal Property from the Properties for
purposes of replacement with like property of equal or greater value and repair
in the ordinary course of business. Lessee shall at all times keep and maintain
the Personal Property in good order, repair and condition, ordinary wear and
tear excepted, and will promptly replace any part thereof that from time to
time may become obsolete, badly worn or in a state of disrepair or, if
supplies, be consumed in the normal course of Lessee's business operations.
Lessor shall have a lien on and security interest in all replacements and all
replacements shall be free of any other lien, security interest or encumbrance
of any nature, including any purchase money lien or security interest. Lessee
shall not transfer or permit any transfer of any part of the Personal Property
to be made or any interest therein to be created by way of a sale (except as
permitted below), by way of a grant of a security interest, or by way of a levy
or other judicial process. Lessee may sell or dispose of only that part of the
Personal Property that either (i) is inventory, (ii) will be replaced by Lessee
like property of equal or greater value, or (iii) is no longer necessary, in
Lessee's reasonable business judgment, for the operation of a Permitted
Concept.
(c) Lessee hereby assigns to Lessor any landlord's liens and/or
security interests granted to Lessee or afforded by statute or common law
against any Personal Property of any subtenant of the Properties.
31. REMOVAL OF PERSONAL PROPERTY. At the expiration of the Lease
Term, and if Lessee is not then in breach hereof, Lessee may remove all
Personal Property 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. 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.
32. FINANCIAL STATEMENTS. Within 45 days after the end of each
fiscal quarter and within 120 days after the end of each fiscal year of Lessee,
Lessee shall deliver to Lessor and Lender (i) complete consolidated financial
statements of the Lessee Parties and their consolidated Affiliates 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 from period to period (other than the
income statements for the business at each of the Properties), and shall be
certified to be accurate and complete in all material respects by Lessee (or
the Treasurer or other appropriate officer of Lessee) to the best of its
knowledge. Lessee understands that Lessor and Lender will rely upon such
financial statements and Lessee represents that such reliance is reasonable. In
the event the 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 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
consolidated financial statements of the Lessee Parties which may be prepared,
as soon as they are available.
33. 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.
29
34. 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.
35. LESSOR'S LIABILITY. 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 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.
36. 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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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
30
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.
43. 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 Concept and will not
decrease the value of such Property. During the Lease Term, Lessor shall also
have the right to grant any utility, access or other similar easements on,
over, under and above any of the Properties which are not requested by Lessee,
provided that Lessee's prior written consent is obtained, such consent not to
be unreasonably withheld or delayed.
44. 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 Concepts, (ii)
Lessee's timely performance of all of its obligations under this Lease as to
all Properties 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:
(i) All obligations that accrue or become due 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 accrue or
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
accruing or 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 as a Permitted Concept, or (b)
that does not possess financial condition, operating performance and
31
experience characteristics equal to or better than the financial condition,
operating performance and experience of the Lessee Parties 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 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. 45. 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.
46. OTHER DOCUMENTS. Each of the parties agrees to do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered all such further acts, documents and assurances as may be reasonably
required or deemed advisable to carry into effect the purposes of this Lease,
to perfect any lien or security interest granted in this Lease and for the
better assuring and confirming of all of Lessor's rights, powers and remedies
under this Lease.
47. 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.
48. 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.
49. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW. Lessee
acknowledges that this Lease was substantially negotiated in the State of
Arizona, the Lease was executed 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
32
successors) and there 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 non-exclusive 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 by registered mail or by personal service
within or without the State of Arizona in accordance with applicable law.
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, the creation and perfection of the liens
and security interests granted herein 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.
50. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall be deemed an original.
51. 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.
Further, upon Lessor's request, Lessee agrees to execute and acknowledge a
termination of lease and/or quit claim deed in recordable form with respect to
each of the Properties to be held by Lessor until the expiration or sooner
termination of the Lease Term.
52. 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.
53. 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, LESSEE AND LESSOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL,
SPECIAL AND INDIRECT DAMAGES FROM THE OTHER AND ANY OF THE OTHER'S AFFILIATES,
OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY
AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM
BROUGHT BY EITHER PARTY AGAINST THE OTHER OR ANY OF THE OTHER'S AFFILIATES,
OFFICERS, DIRECTORS 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. THE WAIVER BY LESSEE AND LESSOR OF ANY
RIGHT THEY 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.
54. RELIANCE BY ENVIRONMENTAL INSURER. Lessee acknowledges and
agrees that Environmental Insurer may rely on the representations, warranties
and covenants set forth in Sections 6.L, 16 and 19.B of this
33
Lease, that Environmental Insurer is an intended third-party beneficiary of
such representations, warranties and covenants and that Environmental Insurer
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.
55. LENDER'S RIGHTS. A. Lessee acknowledges and agrees that (i)
Lessor has collaterally assigned all of its right, title and interest under
this Lease to Lender pursuant to the Loan Documents and (ii) upon the exercise
of Lender's remedies set forth in such Loan Documents, all of the rights,
powers and privileges of Lessor shall be deemed the rights, powers and
privileges of Lender and Lender shall be entitled to exercise all of the rights
and remedies of "Lessor" under this Lease. Lessee hereby consents to, and no
further consent by Lessee shall be required for, any further assignment of
rights of Lessor hereunder or in connection with any transfer by Lender. All
notices, certificates, reports or other information required to be delivered to
Lessor under this Lease shall be delivered simultaneously to Lender in
accordance with the provisions of Section 28. Notwithstanding any provision
herein to the contrary, the collateral assignment of this Lease to Lender shall
not be deemed to create any obligation of or liability for Lender.
B. 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.
C. Lessee agrees that any consent, approval, agreement or waiver
provided by Lessor pursuant to this Lease shall not be valid unless consented
to in writing by Lender.
56. DOCUMENT REVIEW. In the event Lessee makes any request upon
Lessor requiring Lessor or the attorneys of Lessor 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 (x) reimburse Lessor upon demand therefor for all out-of-pocket costs and
expenses incurred by Lessor in connection with such review and/or preparation,
including, without limitation, reasonable attorneys' fees, and (y) pay Lessor a
reasonable processing and review fee.
57. OFAC LAWS AND REGULATIONS. Lessee shall immediately notify
Lessor in writing if any individual or entity owning directly or indirectly any
interest in any of the Lessee Parties or any director, officer, member, manager
or partner of any of such holders is an individual or entity whose property or
interests are subject to being blocked under any of the OFAC Laws and
Regulations or is otherwise in violation of any of the OFAC Laws and
Regulations, or is under investigation by any governmental entity for, or has
been charged with, or convicted of, drug trafficking, terrorist-related
activities or any violation of Anti-Money Laundering Laws, has been assessed
civil penalties under these or related laws, or has had funds seized or
forfeited in an action under these or related laws; provided, however, the
covenant contained in this sentence shall not apply to any Person to the extent
that such Person's interest is in or through a U.S. Publicly-Traded Entity.
58. CONDOMINIUM. Lessee acknowledges that the Property located at
00000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx (FFC No. 8001-4153; Unit No. 17) (the
"Condominium Property") is a condominium unit. During the Lease Term, Lessee
shall promptly pay, perform and comply with all obligations imposed on the
owner of the Condominium Property by the applicable condominium declaration,
by-laws and related documents (collectively, the "Condominium Documents") and
shall provide Lessor with copies of any notices received by Lessee from the
condominium board, its managing agent or from the owner of any other
condominium unit, including, without limitation, notices asserting or claiming
a default or breach by Lessee under the Condominium Documents, such copies to
be provided to Lessor within five (5) days after Lessee's receipt of the
applicable notice. 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 Lessor's interest in
the Condominium Property 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 failure to pay, perform and comply with the terms and
34
conditions of the Condominium Documents or this Section. If Lessee fails to
pay, perform or comply with any of its obligations under the Condominium
Documents or this Section, Lessor may pay or perform such obligations;
provided, however, in no event shall Lessor be obligated to pay or perform such
obligations, and in no event shall payment or performance of such obligations
by Lessor constitute a cure of any Event of Default arising under this Lease as
a result of Lessee's failure to pay, perform or comply with such obligations.
Any amounts disbursed by Lessor as a result of Lessor's performance of such
obligations shall bear interest at the Default Rate from and including the date
of such advance to and including the date such advance is repaid.
35
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease as
of the Effective Date.
LESSOR:
JAX REAL ESTATE, LLC,
a Delaware limited liability company
By /s/ R. Xxxxxxx Xxxxx
--------------------------------------------
R. Xxxxxxx Xxxxx
Its Vice President and Treasurer
LESSEE:
X. XXXXXXXXX'X RESTAURANTS, INC., a Tennessee
corporation
By /s/ R. Xxxxxxx Xxxxx
--------------------------------------------
R. Xxxxxxx Xxxxx
Its Vice President -- Finance
U.S. Federal Tax Identification Number:
00-0000000
Organization Identification Number:
0124773
Principal Place of Business:
Nashville, Tennessee
POWER OF ATTORNEY
Lessor may act as attorney-in-fact or otherwise on behalf of Lessee
pursuant to Sections 25 and 26 of this Lease. This power of attorney is coupled
with an interest, is durable and is not affected by subsequent disability or
incapacity of the principal or lapse of time.
/s/ JSB /s/ RGY
------- -------
Witness Lessee
WITNESS
In accordance with the requirements of Arizona Revised Statutes
Section 14-5506 and other applicable law, the undersigned has executed this
Lease for the purpose of witnessing the grant of the powers of attorney by
Lessee to Lessor.
/s/ Xxxxxx X. Xxxx
-----------------------------------
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
Before me, a notary public in and for said county and state, appeared
R. Xxxxxxx Xxxxx, Vice President and Treasurer of JAX Real Estate, LLC, a
Delaware limited liability company, who acknowledged to me that he/she did
execute the foregoing instrument and the same is his/her free act and deed,
personally and on behalf of said limited liability company.
In testimony whereof, I have hereunto subscribed my name, and affixed
my official seal at Scottsdale, Arizona this 29th day of October, 2002.
/s/ Notary Public
-----------------------------------
Notary Public
My Commission Expires
February 29, 2004
-----------------------------------
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
Before me, a notary public in and for said county and state, appeared
R. Xxxxxxx Xxxxx, Vice President -- Finance of X. Xxxxxxxxx'x Restaurants,
Inc., a Tennessee corporation, who acknowledged to me that he/she did execute
the foregoing instrument and the same is his/her free act and deed, personally
and on behalf of said corporation.
In testimony whereof, I have hereunto subscribed my name, and affixed
my official seal at Scottsdale, Arizona this _______ day of October, 2002.
/s/ Notary Public
-----------------------------------
Notary Public
My Commission Expires
February 29, 2004
-----------------------------------
Prepared by:
Xxxxxxxx X. Xxxxxxx, Esq.
XXXXX XXXX LLP
Suite 300
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EXHIBIT A
PROPERTIES
ADDRESS
-----------------------------------------------------------------------------
PROPERTY
-----------------------------------------------------------------------------
ADDRESS CITY COUNTY STATE
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxxxx XX
-----------------------------------------------------------------------------
0000 Xxxxxxxxxx Xxxxxxx Xx. Xxxxxx Xxxxxxxxxx XX
-----------------------------------------------------------------------------
0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxxxx XX
-----------------------------------------------------------------------------
0000 00xx Xxxxxx Xxx Xxxxx Du Page IL
-----------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX
-----------------------------------------------------------------------------
00000 Xxxxxxx Xxxxxx Xxxxxxxx Xxxx Xxxxxxx XX
-----------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxx Xxxx. Xxxxxxxxxxx Xxxxxxxx XX
-----------------------------------------------------------------------------
0000 Xxxxx Xxxxxxxxxx Xxxx. Xxxxxxx Xxxxxx XX
-----------------------------------------------------------------------------
00000 Xxxxxxxx Xxxx Xxxxxxx Xxxxx XX
-----------------------------------------------------------------------------
TOTAL
-----------------------------------------------------------------------------
EXHIBIT B
LEASED PERSONAL PROPERTY
Lessee occasionally leases the following items of Personal Property:
trash dumpsters, CO2 canisters.
