UNITARY NET LEASE AGREEMENT
Exhibit
10.1
DO
NOT RECORD
THIS
DOCUMENT; A
MEMORANDUM
OF THIS
DOCUMENT
MAY BE RECORDED
IN
ACCORDANCE WITH THE
TERMS
OF SECTION 41 HEREOF.
|
LEASE AGREEMENT (the “Lease”) made as of
this 25th day
of September, 2009 by and between GTY MD LEASING, INC., a Delaware corporation
(hereinafter called “Lessor”), having its
principal office at 000 Xxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000 and
WHITE OAK PETROLEUM, LLC, a Delaware limited liability company (hereinafter
called “Lessee”), with an
office at 0000X Xxxxxxxxxx Xxxxx, Xxxxxxxxxxx,
XX 00000-0000.
STATEMENT
OF INTENT
This Lease
constitutes a single, unitary, indivisible, non-severable lease of all the
Premises (as hereinafter defined). This Lease does not constitute separate
leases contained in one document each governed by similar terms. The use of the
expression "unitary lease" to describe this Lease is not merely for convenient
reference. It is the conscious choice of a substantive appellation to express
the intent of the parties in regard to an integral part of this
transaction. To accomplish the creation of an indivisible lease, the
parties intend that from an economic point of view the Sites (as hereinafter
defined) leased pursuant to this Lease constitute one economic unit and that the
Fixed Annual Rent (as hereinafter defined) and all other provisions of this
Lease have been negotiated and agreed to based on a demise of all the Sites
covered by this Lease as a single, composite, inseparable transaction. Except as
expressly provided in this Lease for specific isolated purposes (and in such
cases only to the extent expressly so stated), all provisions of this Lease,
including definitions, commencement and expiration dates, rental provisions, use
provisions, renewal provisions, breach, default, enforcement and termination
provisions and assignment and subletting, shall apply equally and uniformly to
all the Premises as one unit and are not severable. A default of any of the
terms or conditions of this Lease occurring with respect to any Site shall be a
default under this Lease with respect to all the Premises. Except as expressly
provided in this Lease for specific isolated purposes (and in such cases only to
the extent expressly so stated), the provisions of this Lease shall at all times
be construed, interpreted and applied such that the intention of Lessor and
Lessee to create a unitary lease shall be preserved and maintained. For the
purposes of any assumption, rejection or assignment of this Lease under 11
U.S.C. Section 365 or any amendment or successor section thereof, this is one
indivisible and non-severable lease dealing with and covering one legal and
economic unit which must be assumed, rejected or assigned as a whole with
respect to all (and only all) the Premises covered hereby. The Lease is intended
to be a true lease and not a secured financing for Lessee.
RECITAL
Lessor hereby leases to Lessee and
Lessee hereby hires from Lessor the Premises, for a Term and upon the conditions
more particularly described below.
NOW THEREFORE, in consideration of the
foregoing statements, and the within covenants, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, permitted successors and assigns, hereby
covenant and agree as follows:
In addition to the capitalized words
and phrases defined elsewhere in this Lease when first used, the following
capitalized terms shall have the meanings ascribed to them below:
A. “Default Rate” shall mean an
annual rate of interest equal to the greater of (i) five percent (5%) per annum
over the Wall Street Journal (or any successor publication) prime rate, or (ii)
eighteen percent (18%) per annum; provided, however, that in no event shall the
Default Rate exceed the highest lawful rate of interest that may be charged on
past due amounts due under this Lease.
B. “Equipment” shall mean that
certain equipment listed on Schedule “C” annexed hereto.
C. “Fixed Annual Rent” shall have
the meaning set forth on Schedule “B” annexed hereto and by this reference made
a part hereof.
D. “Premises” shall mean the
building(s), improvements and real property located in Prince George’s County,
Maryland and Xxxxxx County, Maryland (each a “Site” and
collectively, the “Sites”), each as more
fully described on Schedule "A" annexed hereto and by this reference made a part
hereof, as the same may be amended from time to time, in accordance with and
subject to the provisions of Section 44 of this Lease.
E. “Primary Use” shall mean the operation of a service
station and convenience store selling gasoline and/or diesel fuel, automobile
repair services, sales of all motor fuel, petroleum, alternative fuels, ethanol
and other fuel and fuel-related products, and related uses, which may include a
car wash facility, if applicable, and sales of any legal goods or products
typical of a convenience store with on-site fuel sales, including but not
limited to the sale of prepared foods, dry goods, newspapers, magazines, sundry
items, alcohol, tobacco and similar items, including a quick service restaurant;
provided, however, that the term “Primary Use” shall not include, with respect
to any Site, any use which is prohibited by (i) the certificate of occupancy
pertaining to such Site and/or zoning rules and regulations applicable to such
Site and/or (ii) any restrictions set forth in any instrument governing such
Site, including, without limitation, any deed restriction, restrictive covenant,
easement or declaration in effect as of the date of this Lease and any Approved
Easement (as hereinafter defined).
F. “PSA Documents” shall mean
collectively: (i) that certain Agreement of Purchase and Sale dated as of
December 19, 2008 (the “PSA”)by and between EXXONMOBIL OIL CORPORATION and EXXON
MOBIL CORPORATION (collectively “Seller”)
and DAG ENTERPRISES, INC. (“Purchaser”)
with respect to the sale and purchase of certain service station properties and
other property located in the Commonwealth of Virginia, District of Columbia and
the State of Maryland, (ii) that certain Closing Side Letter between Seller and
Purchaser, dated June 16, 2009; (iii) that certain Closing Side Letter II
between Seller and Purchaser, dated August 5, 2009, (iv) that certain Closing
Side Letter III between Seller and Purchaser, dated of even date herewith; (iv)
that certain Side Letter to PSA between Seller and Purchaser, dated July 31,
2009, (v) the Kleinfelder Agreement (as defined at Section 22 (c)), (vi) that
certain Remediation Funding Agreement, dated on or about the date hereof, by and
among Seller, Purchaser and Branch Banking and Trust Company, and (vi) without
limiting the specific agreements detailed in the foregoing clauses (i) through
(vi) inclusive any and all written agreements executed by Seller, Purchaser,
Guarantor, Lessor and Lessee in connection with the transactions contemplated by
the terms of this Lease. Further, the term “Purchaser” for the
purposes of this Lease shall include any affiliates of Purchaser, Lessee and/or
Guarantor or any of their affiliates that are obligated by any written agreement
entered into in connection with the execution of this Lease and the purchase,
sale and leaseback of the Premises.
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G. “Renewal Option” shall have the
meaning set forth in Section 6 of this Lease.
H. “Term” shall mean, initially,
the period commencing on September 25, 2009 (the “Commencement Date”), and
ending on September 30, 2029 (the “Expiration Date”) and shall also include the
Renewal Term(s) unless Lessee properly exercises its right to not extend the
Term of this Lease in accordance with the terms hereof.
I. “USTs” shall mean the
underground storage tanks and related piping owned by Lessee and more
particularly described on Schedule “D" annexed hereto.
1. SALE-LEASEBACK. Lessee is
acquiring the Premises as of the date of this Lease in accordance with the terms
and conditions of the PSA Documents and is selling and transferring the Premises
to Lessor by special warranty deeds and bills of sale and is leasing back from
Lessor the Premises in accordance with the terms of this
Lease. Lessor hereby demises and lets to Lessee and Lessee hereby
leases from Lessor on a triple net basis, the Premises, pursuant to the terms,
conditions and limitations set forth herein. This Lease is intended to be a
unitary triple net Lease, covering thirty-six (36) distinct Sites, all of which
comprise the Premises. Neither Lessee nor Lessor shall be permitted
to take, maintain or initiate any action which would or could, in any manner,
cause this Lease to be viewed as demising less than all of the thirty-six (36)
Sites. Lessee hereby agrees to comply with all provisions of the PSA
Documents with respect to the Premises. The Lease contemplates that
the purchase by Lessee, and the sale and leaseback of the thirty-six (36) Sites
comprising the Premises to Lessor shall occur simultaneously. Lessee
hereby represents and warrants to Lessor that it has complied with all of its
obligations under the PSA Documents with respect to the Premises through the
date of this Lease and covenants and agrees that it shall comply with all of its
obligations under the PSA Documents with respect to the Premises from and after
the date of this Lease. Lessee hereby acknowledges and agrees that it
shall not default in the performance of its obligations under any of the PSA
Documents (including specifically, the PSA, the Kleinfelder Agreement, and the
Remediation Funding Agreement) with respect to the Premises beyond applicable
notice and cure periods, and that it shall promptly provide to Lessor any
default notices it receives from Seller under the PSA Documents. The
provisions of this Section 1 shall survive the execution and delivery of the
Lease.
2. TERM. The initial term
of this Lease shall be an initial term of approximately twenty (20) years
commencing on the Commencement Date and expiring on the Expiration Date (the
“Initial
Term”), as the same may be extended pursuant to Section 6 of this Lease.
3. FIXED
ANNUAL RENT. (a) Lessee
shall pay the Fixed Annual Rent for the Premises. Monthly
installments of Fixed Annual Rent shall be due and payable in advance on the
first business day of each month during the Term without notice or demand and
without any abatement, setoff or deduction whatsoever. All amounts
payable under this Lease shall be paid by electronic funds transfer or wire
transfer of immediately available funds to the following account for Lessor,
unless and until otherwise directed in writing by Lessor:
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CREDIT: Getty Properties
Corp.
ABA#: 000000000
ACCOUNT Number:
Lessor
shall initiate electronic funds transfers with the intention that funds transfer
to Lessor on the first business day of each month. Lessee shall not
be in default of its obligation to pay Fixed Annual Rent if payment is being
made by electronic funds transfers intended to be initiated by Lessor pursuant
to the provisions hereof and Lessor fails to initiate such electronic funds
transfer. Lessor shall endeavor to provide a courtesy notice to
Lessee of the amount to be drafted by Lessor approximately five (5) days prior
to the transfer.
(b) Commencing on the first
(1st) anniversary of the Commencement Date, and on every anniversary of the
Commencement Date thereafter during the Term of the Lease, the Fixed Annual Rent
shall be increased by two and one half percent (2.5%) of the Fixed Annual Rent
payable for the year immediately preceding such anniversary of the Commencement
Date. For example, if the Fixed Annual Rent payable for the period
ending on the day immediately preceding the first (1st) anniversary of the
Commencement Date is Five Million Six Hundred Thirty Five Thousand and 00/100
Dollars ($5,635,000), then the Fixed Annual Rent payable for the period
commencing on the first (1st)
anniversary of the Commencement Date is Five Million Seven Hundred Seventy Five
Thousand Eight Hundred Seventy-Five Dollars ($5,775,875). Under no
circumstances whatsoever shall the Fixed Annual Rent be reduced.
(c) If
this Lease commences or terminates on a day which is not the first or the last
day of the month as the case may be, then Fixed Annual Rent for the month in
which this Lease commences or terminates shall be prorated. Lessee agrees that
if any monthly installment of Fixed Annual Rent shall be due and unpaid for five
(5) business days after Lessee receives written notice from Lessor, Lessor shall
then have the right to terminate this Lease, subject to the terms and provisions
of Section 23 below and pursue its remedies at law or in equity in accordance
with the terms of this Lease, including eviction, ejectment or dispossession,
under Section 23 of this Lease or otherwise. At Lessor's option,
rent, additional rent and any other sums due and owing under this Lease shall be
paid by electronic wire transfer of funds or by electronic funds
transfer. Lessee shall execute and deliver to Lessor such forms or
authorizations as may be necessary for electronic wire transfers or electronic
funds transfers. Anything herein to the contrary notwithstanding, but
subject to Section 24 of this Lease, the Premises herein demised are demised for
the whole Term, with the entire amount of rent reserved herein due and payable,
in advance, simultaneously with the execution hereof, the payment of rent in
installments is for convenience of Lessee only, and upon default in payment of
rent installments (or other default of Lessee resulting in the repossession of
the Premises by Lessor) then, subject to Section 24 of this Lease, the entire
rent hereby reserved for the entire Term shall be immediately due and payable,
as accelerated without further notice or demand.
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4. ADDITIONAL
RENT. (a) Lessee shall also pay and discharge, as
additional rent, all other amounts, liabilities and obligations of whatsoever
nature relating to the Premises before any fine, penalty,
interest or cost may be added thereto for the non-payment thereof, including all
taxes, assessments, licenses and permit fees, charges for public utilities, and
all governmental charges, general and special, ordinary and extraordinary,
foreseen and unforeseen, of any kind and nature whatsoever which during the Term
may have been, or may be assessed, levied, confirmed, imposed upon or become due
and payable out of or in respect of, or become a lien on the Premises or any
part thereof. Notwithstanding the foregoing, Lessee shall not be
responsible for payment of the following: fees, costs and
expenses related to debt service on any indebtedness of Lessor, including,
without limitation, principal and interest; income taxes assessed against
Lessor, or capital levy, franchise, business license, estate succession or
inheritance taxes of Lessor; and obligations or liabilities created by Lessor
subsequent to the Commencement Date without the prior written consent of Lessee
or other than as set forth or contemplated by, this Lease (it being
expressly understood that this Lease requires that Lessee shall be
responsible for, without limitation, all covenants and
requirements set forth in any deed pertaining to the Premises which evidenced
conveyance of the Premises to Lessee immediately prior to Lessee conveying the
Premises to Lessor, as well as all easements recorded against the
Premises from and after the date of this Lease with Lessee’s prior written
consent, which consent shall not be unreasonably withheld or
delayed). Additional Rent shall include the costs of utilities, real
property impositions, costs arising under any easements, restrictions, or other
similar agreements affecting the Premises as of the Commencement Date, including
all covenants and requirements set forth in the any deed pertaining to the
Premises which evidenced conveyance of the Premises to Lessee immediately prior
to Lessee conveying the Premises to Lessor, or any similar agreement required by
law, or required to be granted by a public utility providing municipal services
to the Premises, or otherwise arising after the date hereof and approved in
writing by Lessee, which consent shall not be unreasonably withheld or delayed
(each, an “Approved
Easement”), and all interest and penalties that may accrue thereon
(unless accrued due to Lessor’s act or omission) in the event of Lessee’s
failure to pay such amounts when due, and all damages, costs and expenses which
Lessor may incur by reason of any default of Lessee or failure on Lessee’s part
to comply with the terms of this Lease, all of which Lessee hereby agrees to pay
upon demand or as is otherwise provided herein. Upon any failure on
the part of Lessee to pay any of the additional rent and such failure continues
for ten (10) days after written notice from Lessor, Lessor shall have all legal,
equitable and contractual rights, powers and remedies provided either in this
Lease or by statute or otherwise in the case of non-payment of the Fixed Annual
Rent. Fixed Annual Rent and additional rent sometimes are referred to
in this Lease, collectively, as “Rent”.
(b) Tenant shall pay and
discharge any additional rent referred to Section 4(a) when the same shall
become due; provided that amounts which are
billed to Lessor or any third party, but not to Lessee, shall be paid within
fifteen (15) days after Lessor’s demand for payment thereof. Lessor
agrees that in the event a xxxx is provided to Lessor for amounts Lessee
is obligated to pay hereunder, Lessor shall promptly remit such xxxx to Lessee
and Lessee shall pay such amounts as and when due, provided that if Lessee fails
to pay such amount within fifteen (15) days of the date due, Lessor may, at its
option, pay such amount and Lessee shall reimburse Lessor for such amount as
additional rent hereunder within twenty (20) days after demand.
5. NET
LEASE. This Lease is intended and shall be deemed and
construed to be an absolutely “net lease” and Lessee shall pay to Lessor,
absolutely net throughout the Term, the Fixed Annual Rent, free of any charges,
assessments, impositions or deductions of any kind and without abatement,
deduction or set-off whatsoever and under no circumstances or conditions,
whether now existing or hereafter arising, or whether beyond the present
contemplation of the parties, shall Lessor be expected or required to make any
payment of any kind whatsoever or be under any other obligation or liability
hereunder, except as expressly set forth in this Lease. Lessee shall
pay all costs, expenses and charges of every kind and nature relating to the
Premises after the Commencement Date (except for the expenses related to any
indebtedness of Lessor), including, without limitation, real property taxes,
personal property taxes, use taxes and any sales taxes, which may arise or
become due or payable during or after (but attributable to a period falling
within) the Term, whether such amounts are ordinary or extraordinary and
irrespective as to whether such amounts could have been reasonably anticipated
by the parties. Except as otherwise provided in this Lease, the
obligations of Lessee hereunder shall not be affected by reason of any damage to
or destruction of the Premises or any part thereof, any taking of the Premises
or any part thereof or interest therein by condemnation or otherwise, any
prohibition, limitation, restriction or prevention of Lessee’s use, occupancy or
enjoyment of the Premises or any part thereof, or any interference with such
use, occupancy or enjoyment by any person or for any reason, any interruption or
failure of utilities servicing the Premises, any matter affecting title to the
Premises, any eviction by paramount title or otherwise, unless as a direct
result of the gross negligence and/or willful misconduct of Lessor, the
impossibility of performance by Lessor, Lessee or both, any action of any
governmental authority, Lessee’s acquisition of ownership of all or part of the
Premises (unless this Lease shall be terminated by a writing signed by all
persons, including any mortgagee, having an interest in the Premises), or any
other cause whether similar or dissimilar to the foregoing and whether or not
Lessee shall have notice or knowledge thereof and whether or not such cause
shall now be foreseeable, except with respect to such of the foregoing arising
out of any default hereunder by Lessor or any action or failure to act by Lessor
or, in any such case, any entity controlled by, controlling or under common
control with Lessor, or any employee or contractor of Lessor or any such
affiliated entity. The parties intend that the obligations of Lessee
under this Lease shall be separate and independent covenants and agreements and
shall continue unaffected unless such obligations have been modified or
terminated pursuant to an express provision of this Lease.
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6. RENEWAL
OPTION. (a) Subject to Lessee not being in default
hereunder beyond the expiration of any applicable notice, grace and cure period,
the Term of this Lease shall be automatically extended for three (3) renewal
terms of ten (10) years each (each, a “Renewal Term”),
unless, with respect to any Renewal Term, Lessee provides irrevocable written
notice to Lessor electing not to exercise the renewal option (herein, a “Renewal Option”)
applicable to such Renewal Term in accordance with the provisions of this
Section 6. The Renewal Option applicable to each Renewal Term shall
be automatically elected for such Renewal Term only if (x) Lessee is not in
default hereunder on the date of automatic exercise of the Renewal Term or on
the date that such Renewal Term commences and (y) Lessee shall have exercised
all prior Renewal Options under this Lease. Furthermore, in no event
shall any Renewal Option be effective for any Renewal Term for less than all of
the Sites then comprising the Premises covered by this
Lease. Further, once Lessee provides irrevocable written notice to
Lessor electing not to exercise the Renewal Option for any particular Renewal
Term, then Lessee shall no longer be permitted or entitled to exercise a Renewal
Option for any other then remaining Renewal Term.
(b) The
Fixed Annual Rent to be paid by Lessee during each of the Renewal Terms shall be
as described in Section 3 of this Lease, subject to escalations described in
Section 3 of this Lease.
(c) Lessee
shall notify Lessor in writing of its election not to extend the Term of this
Lease for the Renewal Terms at least eighteen (18) months prior to the date of
expiration of the Initial Term or the Renewal Term then in effect, and such
notice shall be given in the manner hereinafter provided. Under no
circumstances shall Lessee be entitled to renew this Lease for less than all
Sites comprising the Premises as set forth on Schedule “A” attached hereto and
by this reference made a part hereof. Time shall be of the essence as to the
giving of notices under this Section 6.
(d) If
Lessee elects not to renew this Lease by providing irrevocable written notice to
Lessor pursuant to this Section 6, or if an Event of Default occurs and is
continuing, then Lessor will have the right during the remainder of the Term
then in effect and, in any event, Lessor will have the right during the last
eighteen (18) months of the Term, to (i) advertise the availability of the
Premises for sale or reletting and to erect upon the Premises signs indicating
such availability and (ii) show the Premises to prospective purchasers or
tenants or their agents at such reasonable times as Lessor may
select.
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7. IMPOSITIONS. (a) Lessee
will pay and discharge when due: all taxes (including real and personal
property, franchise, sales, use, gross receipts and rent taxes); all charges for
any easement agreement in effect as of the date of this Lease and with respect
to any Approved Easement; all assessments and levies; all fines, penalties and
other costs in connection with noncompliance with any applicable law (unless
such amounts are payable solely as a result of Lessor’s actions); all permit,
inspection and license fees; all rents and charges for water, sewer, utility and
communication services; all ground rents and all other public charges, imposed
upon or assessed against (i) Lessee, (ii) Lessee’s interest in the Premises,
(iii) the Premises, (iv) Lessor as a result of or arising in respect of the
acquisition, ownership, occupancy, leasing, use, possession or sale of the
Premises, any activity conducted on the Premises, or the rent, or (v) any lender
by reason of any note, mortgage, assignment or other document evidencing or
securing a loan with respect to the Premises (collectively, “Impositions”); provided that nothing
herein shall obligate Lessee to pay (A) income, excess profits or other taxes of
Lessor (or any lender) or other charges or assessments imposed upon Lessor (or
any lender to Lessor) which are determined on the basis of Lessor’s (or such
lender’s) net income, net worth or organizational status (such as fees, charges
or penalties imposed upon national banks by the FDIC, Office of Thrift
Supervision, Comptroller of the Currency or similar regulatory agencies) (unless
such taxes are in lieu of or a substitute for any other tax, assessment or other
charge upon or with respect to the Premises which, if it were in effect, would
be payable by Lessee under the provisions hereof or by the terms of such tax,
assessment or other charge), (B) any estate, inheritance, succession, gift or
similar tax imposed on Lessor or (C) any capital gains tax imposed on Lessor in
connection with the sale of the Premises to any person. Upon
expiration of the Term (or any earlier termination of this Lease), Lessee shall
pay Lessor for unpaid taxes which are due or payable during the Term up to and
including such date that shall become due and owing
thereafter. Lessor shall make a reasonable estimate of such unpaid
taxes based on the prior year’s tax bills, and shall perform a reconciliation
promptly after the actual information becomes available. In the event
that any ad valorem or other future real property tax (“Future Tax”) is
decreed or characterized by law as an income tax and Lessee is thereby
prohibited by any applicable law from paying such Future Tax pursuant to this
Section 7 (a), Lessor and Lessee agree that Fixed Annual Rent shall be adjusted
by the amount necessary to provide Lessor the same net yield as Lessor would
have received but for the implementation or characterization of such Future
Tax. Prior to or on the date the Future Tax takes effect, Lessor
shall provide Lessee with notice of the revised Fixed Annual Rent under this
Lease. Lessor shall have the right to require Lessee to pay, together
with scheduled installments of Fixed Annual Rent, the amount of the gross
receipts or rent tax, if any, payable with respect to the amount of such
installment of Fixed Annual Rent. If any Imposition may be paid in
installments without interest or penalty, Lessee will have the option to pay
such Imposition in installments, provided such option to pay any Imposition in
installments shall not hinder or prevent Lessor from exercising any of its
rights set forth in this Lease. Lessee shall prepare and file all tax
reports required by governmental authorities which relate to the Impositions,
and Lessor shall reasonably cooperate with Lessee regarding such preparation at
Lessee’s sole cost and expense. Lessee shall deliver to Lessor (1)
copies of all settlements and notices pertaining to the Impositions which may be
issued by any governmental authority within ten (10) days after Lessee’s receipt
thereof, (2) receipts for payment of all taxes required to be paid by Lessee
hereunder within thirty (30) days after the due date thereof and (3) receipts
for payment of all other Impositions within ten (10) days after Lessor’s request
therefor. In the event (i) Lessee is in default of its obligations
under this Lease beyond the expiration of any applicable notice, grace and cure
period or (ii) Lessor’s lender requires Lessor to provide escrow deposits with
respect to the payment of Impositions, Lessee shall pay to Lessor or such
lender, as the case may be, such amounts (each an “Escrow Payment”)
monthly or as required by Lessor or such lender (but not more often than
monthly) so that there shall be in an escrow account an amount sufficient to pay
as they become due the Escrow Charges that will accrue over such period of time
as Lessor or such lender shall reasonably require, which period of time may not
exceed a twelve (12) calendar month period. Lessor shall use commercially
reasonable efforts to negotiate for its loan documents with its lender to not
require escrow deposits with respect to Impositions. As used herein,
“Escrow Charges” means real estate taxes and assessments on or with respect to
the Premises or payments in lieu thereof and premiums on any insurance required
by this Lease, payments due under any Approved Easement or otherwise the
responsibility of Lessee under the terms of this Lease and any reserves for
capital improvements, deferred maintenance, repair and/or tenant improvements
required by Lessor or any lender. Lessor will determine the amount of
the Escrow Charges (it being agreed that if required by a lender, such amount
shall equal any corresponding escrow installments required to be paid by Lessor)
and the amount of each Escrow Payment. The Escrow Payments will not
be commingled with other funds of Lessor or other persons and will be held in
trust for payment of the Escrow Charges. No interest thereon will be
due or payable to Lessee, and any interest earned on the Escrow Account shall be
deemed income to Lessor, or its lender. Lessor will apply the Escrow
Payments to the payment of the Escrow Charges in such order or priority as
Lessor or such lender shall determine or as required by Law. If at
any time the Escrow Payments theretofore paid to Lessor shall be insufficient
for the payment of the Escrow Charges, Lessee, within ten (10) days after
Lessor’s demand therefor, shall pay the amount of the deficiency to
Lessor. If Lessor fails to make any such payment and any failure
results in a penalty or imposition payable by Lessor or Lessee with respect to
the Premises, Lessor shall be responsible for paying such penalty or
impositions. Promptly after the expiration of the Term of this Lease,
Lessor shall refund to Lessee any amounts remaining in the Escrow Account which
Lessee is entitled to receive.
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(b) Lessee agrees to notify
Lessor immediately of any changes to the amounts, schedules, instructions for
payment of any Impositions and premiums on any insurance held under this Lease
of which Lessee has obtained knowledge and authorizes Lessor to obtain the bills
for Impositions or Escrow Charges directly from the appropriate authority or
entity; provided, however, that in no event shall Lessor’s obtaining the bills
interfere with Lessee’s receipt of the bills directly from the appropriate
authority or entity.
(c) All such payments when
due shall be deemed to be additional rent due hereunder. Should
Lessor seek a reduction in the assessed valuation of the Premises or contests
any Impositions on the Premises, Lessee shall consent to Lessor’s right to seek
said reduction and if Lessor seeks a reduction in the assessed valuation of the
Premises or contests any Impositions on the Premises at the request of the
Lessee then Lessee shall reimburse Lessor for any actual costs associated with
Lessor’s efforts. Sums payable under this Section shall be prorated
for any partial Lease year.
(d) Lessee, at
Lessee's sole cost and expense, shall have the right, at any time, to seek a
reduction in the assessed valuation of the Premises or to contest any
Impositions that are to be paid by Lessee; provided, however, that Lessee shall
(i) give Lessor written notice of any such intention to contest at least thirty
(30) days before any delinquency could occur; (ii) indemnify and hold Lessor
harmless from all liability on account of such contest; (iii) take such action
as is necessary to remove the effect of any lien which attached to the Premises
or the improvements thereon due to such contest, or in lieu thereof, at Lessor's
election, furnish Lessor with adequate security for the amount of the taxes due
plus interest and penalties; and (iv) in the event of a final determination
adverse to Lessee prior to enforcement, foreclosure or sa1e, pay the amount
involved together with all penalties, fines, interest costs, and expenses which
may have accrued. Lessee may use any means allowed by statute to
protest taxes or utility charges as defined in this Section as 1ong as Lessee
remains current as to all other terms and conditions of this
Lease. If the protested taxes have not been paid, then at Lessor's
request Lessee shall furnish to Lessor a surety bond issued by an insurance
company qualified to do business in the state where the Premises is
located. The amount of the bond shall equal 110% of the total amount
of the taxes in dispute. The bond shall hold Lessor and the Premises
harmless from any damage arising out of the proceeding or contest and shall
insure the payment of any judgment that may be rendered. If Lessee
seeks a reduction or contests any taxes or utility charges, the failure on
Lessee's part to pay the taxes or utility charges shall not constitute a default
as long as Lessee complies with the provisions of this Section.
8
(e) Lessor
shall not be required to join in any proceeding or contest brought by Lessee
unless the provisions of the law require that the proceeding or contest be
brought by or in the name of Lessor or the owner of the Premises. In
that case, Lessor shall join in the proceeding or contest or permit it to be
brought in Lessor's name as long as Lessor is not required to bear any
cost.
8. UTILITIES. (a) Lessee
shall pay directly to the appropriate authority, all charges for gas,
electricity, telephone, cable, heat and hot and cold water used and/or consumed
at the Premises.
(b) Lessor
shall not be required to furnish light, electricity, heat or any other services
to the Premises. Lessor shall not be liable to Lessee or any other
person or persons, firms, associations, corporations or entities for any failure
of the water supply, electricity, gas or any other service in and about the
Premises or for injury or damages to persons or property caused by any such
failure or caused by the elements or by any other person in and about the
Premises, or which might result from leakage or flow of any system, gas,
electricity, water, rain, ice or snow from any part of the Premises or portion
thereof or from the streets adjacent thereto, nor shall Lessor be liable for any
latent defects in or on the Premises, buildings and appurtenances thereto,
including the sidewalks on the adjacent Premises.
9. USE;
BRANDING. (a) Lessee shall use and occupy each of
the Sites comprising the Premises for the Primary Use, in compliance with all
zoning regulations, the building code and all applicable laws, rules and
regulations and as set forth in this Lease; provided, however, that Lessee’s
non-compliance with minor and immaterial items shall not constitute a default
under the terms of this Lease so long as such non-compliance does not give rise
to any enforcement action with respect to such violation by any governmental or
quasi-governmental entity or authority or self regulatory body or would
otherwise cause Lessor to incur any liability with respect to such
non-compliance by Lessee. Lessee must obtain, at its own expense, all
government licenses and permits required for the lawful conduct of Lessee’s
business on the Premises and Lessee will, at all times, comply with the terms of
such licenses and permits. Lessee shall not change the current use of
the Premises without first obtaining Lessor’s prior written consent, which may
be withheld by Lessor in its sole and absolute discretion; unless applicable
laws do not permit Lessee to reconstruct the Site for the use as set forth
herein, in which case Lessor shall not unreasonably withhold or delay its
consent. Lessee shall not engage in any practices or activities which
would injure, damage, or otherwise cause a diminution in the value of the
Premises or any Site constituting same. Lessee shall keep, or shall cause any
occupant at the Premises to keep, all such licenses and permits in full force
and effect for the Primary Use of the Premises and shall not permit any activity
to occur on the Premises in violation thereof or in violation of the
certificates of occupancy or certificates of use or the equivalent thereof, for
the Primary Use of the Premises, or for any change in use to which Lessor has
consented. Upon receipt of written request from Lessor, Lessee shall
provide Lessor with copies of all government licenses and permits in effect for
the particular Site or Sites. Without limiting any of the obligations
of Lessee hereunder, Lessee shall comply with all provisions of the PSA
Documents relating to branding requirements with respect to all of the Sites,
including, without limitation, the requirements set forth in Article II of the
PSA.
9
(b) Lessee shall not use or
occupy or permit the Premises to be used or occupied, nor do or permit anything
to be done in or on the Premises, in a manner which would or might (i) violate
any Governmental Regulations (as defined below), (ii) make void or voidable or
cause any insurer to cancel any insurance required by this Lease, or make it
difficult or impossible to obtain any such insurance at commercially reasonable
rates, (iii) make void or voidable, cancel or cause to be cancelled or release
any warranties, (iv) cause structural injury to any of the improvements or (v)
constitute a public or private nuisance or waste.
(c) Lessee shall have no
right whatsoever (by virtue of this Lease) to use the “Getty” tradename or
trademark in connection with its goods or its business or
otherwise.
10. LESSEE’S
PERSONAL PROPERTY. (a) Lessee shall have the
right to decorate the Premises and affix signs customarily used in its business
upon the windows, doors, interior and exterior walls of the Premises, and such
free-standing signs as are customarily used in the conduct of business permitted
under this Lease in the manner and locations reasonably acceptable to Lessor and
as and are authorized by any governmental authority having jurisdiction over the
Premises and permitted by any covenants, conditions and restrictions encumbering
the Premises. Upon the expiration or earlier termination of the
Lease, subject to Section 19 of this Lease, Lessee shall remove such signs;
provided, however, that in no event may Lessee remove free-standing signage
(such as pole-mounted or monument signs) from the Premises without Lessor’s
prior written consent. Lessee promptly shall make such repairs and
restoration of the Premises as are reasonably necessary to repair any damage to
the Premises from the removal of the signs. All work performed by
Lessee in or about the Premises shall comply at all times with all applicable
laws and no alteration shall devalue any of the Sites.
(b) During the Term, Lessee
may, at Lessee's expense, place or install such furniture, trade fixtures,
equipment machinery, furnishings, face plates of signage and other articles of
movable personal property including, without limitation, USTs, multi product
fuel dispensers and lines (collectively, “Lessee's Personal
Property”) on the Premises as may be needed for the conduct of Lessee's
business in accordance with all applicable laws and regulations. It
is expressly understood that the term “Lessee's Personal Property” as used
herein shall not include the Equipment, and shall in no event extend to
leasehold improvements, fixtures or similar "vanilla box" items such as light
fixtures, HVAC equipment, refrigerators, walk-in coolers and freezers or other
fixtures and equipment permanently affixed to the Premises, which shall at all
times be Lessor’s property. All Equipment shall be free and clear of
any lien, encumbrance or other security interest at all times during the Term of
this Lease. Lessee shall not encumber, or attempt to, or purport to,
allow any lien, encumbrance or security interest to be granted or filed with
respect to any portion of the Equipment. Lessee shall not encumber
Lessee’s Personal Property without the prior written consent of Lessor, which
consent shall not be unreasonably withheld or delayed.
(c) At
the expiration or earlier termination of the Lease, and provided that there is
no Event of Default then continuing beyond applicable cure periods, Lessee's
Personal Property may be removed from the Premises, at the option of
Lessee. In the alternative, at the expiration or earlier termination
of the Lease, Lessor may require Lessee to remove Lessee’s Personal Property
from the Premises. Lessee immediately shall make such repairs and
restoration of the Premises as may be necessary to repair any damage to the
Premises from the removal of Lessee's Personal Property. Any of
Lessee's Personal Property not so removed shall be deemed abandoned, and Lessor
may cause such property to be removed from the Premises and disposed of at
Lessee’s expense. The provisions of this Section shall survive the
expiration or termination of this Lease.
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(d) Notwithstanding anything
to the contrary set forth in this Lease and the provisions of Section 10(c)
above, Lessor shall have the right, exercisable by written notice to Lessee to
such effect delivered not less than three (3) months prior to the expiration of
this Lease (or as soon as is practical in the event of an earlier termination),
to require Lessee to leave in place at any of the Sites, and to convey to Lessor
for $10.00, any or all of the UST systems (or the replacements
therefor). If Lessor elects to purchase the UST systems at all or a
portion of the Sites, then (i) the UST systems shall be delivered to Lessor in
proper working order and condition and in full compliance with all applicable
laws and such condition shall be evidenced by tank and line tightness and
functionality tests performed no earlier than ten (10) days prior to the
conveyance of such items to Lessor, (ii) the UST systems shall be delivered to
Lessor free and clear of any lien, charge, encumbrance or other financing
device, and (iii) Lessee shall provide Lessor with a xxxx of sale with respect
to the UST systems conveying the same in the condition required by the terms of
this subsection. The parties hereby agree that Lessor may elect to
purchase the UST systems at all of the Sites comprising the Premises or any one
or more of the Sites. If Lessor elects to purchase the UST systems at
the expiration or sooner termination of this Lease and such items are subject to
any lien, charge, encumbrance or other financing device, then Lessee shall
provide Lessor with such funds as shall be necessary to pay such lien, charge,
encumbrance or other financing device.
11. “AS IS”;
COMPLIANCE WITH LAWS. (a) Lessee acknowledges that, prior to
the Commencement Date, the Premises have been used as retail gasoline stations
and convenience stores. Lessor does not make any representation or
warranty regarding the condition or occupancy thereof or the fitness of the
Premises for the use permitted under this Lease or other uses contemplated by
Lessee. Lessee acknowledges that it has inspected the Premises and
accepts the same in their present condition, and subject to all matters of
record and tenancies as of the date hereof (and together with any subsequent
replacements therefor), "AS IS", with no representations or warranties
whatsoever and on the terms and conditions set forth in this
Lease. Lessee acknowledges and agrees that: (i) Lessor is not
retaining or assuming any responsibility with respect to the Premises or its
operation, or the condition or repair of the Premises, or as to any fact,
circumstance, thing or condition which may affect or relate to the Premises,
except as specifically set forth in this Lease; and (ii) Lessor has no
obligation to alter, restore, improve, repair or develop the Premises, and
further has no obligation to remove therefrom any items of personal property or
other trade fixtures or equipment which may be upon the Premises.
(b) Lessee shall comply promptly, at
Lessee’s expense, with all present and future laws, codes and ordinances and
other notices, requirements, orders, rules and regulations (whatever the nature
thereof) of all federal, state and local governmental authorities and
recommendations of the board of fire underwriters or any insurance
organizations, associations or companies in the respect to the Premises
(collectively, “Governmental
Regulations”) and Lessee will not knowingly do or commit, or
suffer to be done or committed anywhere in the Premises, any act or
thing contrary to any Governmental Regulations; provided, however, that Lessee’s
non-compliance with minor and immaterial items shall not constitute a default
under the terms of this Lease so long as such non-compliance does not give rise
to any violation of law or cause Lessor to incur any liability with respect to
such non-compliance by Lessee. Furthermore, Lessee agrees that it
will defend, indemnify and hold harmless Lessor for any actual costs, damages,
penalties or fines Lessor may incur by reason of Lessee's failure to comply with
Governmental Regulations at the Premises. The provisions hereof shall
survive the expiration or termination of this Lease.
(c) Lessee acknowledges that
the Premises are subject to certain existing tenancies/occupancies with service
station operating dealers (herein, the “Existing Dealer
Leases”) and with other third parties (herein, the “Subleases”) and more
particularly described in Schedule “E” attached hereto and by this reference
made a part hereof, and Lessee accepts the Premises subject to the
same. Lessee hereby acknowledges and agrees that Lessor shall have no
obligation whatsoever with respect to the Subleases and/or the Existing Dealer
Leases.
11
(d) Lessee acknowledges that
the Premises are demised and let subject to (i) any mortgage secured by Lessor’s
interest in the Premises in effect from time to time, (ii) the state of title of
the Premises as of the date hereof as evidenced by the owner’s title insurance
policies described on Exhibit “A” attached hereto and by this reference made a
part hereof, (iii) any state of facts which an accurate survey or physical
inspection of the Premises might show, (iv) any Approved Easement, and (v) all
Governmental Regulations, including any existing violations of any thereof;
provided, however, that if there is a complete failure of title with respect to
any of the Sites comprising the Premises (and such failure is not the result of
any act or omission of Lessee), Lessor agrees to remove such Site from the
Premises (and adjust the Fixed Annual Rent accordingly) and Lessor shall be
solely entitled to retain the proceeds from any policy of title insurance issued
in favor of Lessor; provided, further, that if such failure of title is the
result of an act or omission of Lessee, then and in such event, such Site shall
not be removed from the Premises.
(e) Lessee, at its sole cost
and expense, will at all times promptly and faithfully abide by, discharge and
perform all of the covenants, conditions, restrictions and agreements contained
in any easement agreement, declaration, license or other agreement in effect as
of the date of this Lease and any Approved Easement as well as all covenants and
requirements set forth in the deed to the Premises which conveyed the Premises
to Lessee immediately prior to Lessee conveying the Premises to Lessor, on the
part of Lessor to be kept and performed thereunder; provided, however, that
Lessee’s non-compliance with minor and immaterial items shall not constitute a
default under the terms of this Lease so long as such non-compliance does not
give rise to any violation of any matter or would cause Lessor to incur any
liability with respect to such non-compliance by Lessee. Without
limiting the general application of this subsection (e), Lessee, at its sole
cost and expense, will comply with the requirements of all matters of record
with respect to the construction, maintenance, operation, repair and replacement
of stormwater facilities located at the Premises (“Storm Water
Requirements”); provided, however, that, notwithstanding the foregoing,
Lessor shall not require Lessee’s performance of the Storm Water Requirements if
there is no Event of Default continuing hereunder, or if the relevant
beneficiary of such Storm Water Requirements, or any other party having standing
to enforce same, shall not have undertaken to enforce the Storm Water
Requirements. Lessee will not alter, modify, amend or terminate any
Approved Easement, give any consent or approval thereunder, or enter into any
new easement agreement without, in each case, prior written consent of Lessor,
which consent shall not be unreasonably withheld, conditioned or delayed so long
as such proposed agreement shall not result in a decrease of the value of the
Premises. Lessee agrees to reasonably cooperate with Lessor, at
Lessee’s sole cost and expense, in connection with (a) the granting of
easements, licenses, rights-of-way and other rights and privileges under
Approved Easements reasonably necessary or desirable for ownership and operation
of the Premises as herein provided; (b) the execution of petitions to have the
Premises annexed to any municipal corporation or utility district; (c) the
execution of amendments to any covenants and restrictions affecting the
Premises; provided, that in
each case Lessor has delivered to Lessee a certificate stating that such grant,
release, dedication, transfer, amendment or government action, or other action
or agreement will not materially interfere with Lessee’s use and enjoyment of
the Premises or result in any increased material costs to
Lessee. Lessee may request Lessor’s consent to (a)
the granting of easements, licenses, rights-of-way and other rights reasonably
necessary for operation of the Premises as herein provided, which consent shall
not be unreasonably withheld or delayed; (b) the execution of petitions to have
the Premises annexed to any municipal corporation or utility district which
consent may be withheld by Lessor in its sole and absolute discretion (provided,
however, that if such petitions, documents and/or instruments are required by
applicable law or fundamentally necessary for continued operation of the
Premises as herein provided, then Lessor’s consent shall not be required, but
Lessee shall provide Lessor with prior written notice of such matter); (c) the
execution of amendments to any covenants and restrictions affecting the Premises
which consent may be withheld by Lessor in its sole and absolute discretion;
provided, however, that in each
and every case Lessee shall (i) pay all costs and expenses incurred by Lessor,
and (ii) deliver to Lessor a certificate stating that such grant, release,
dedication, transfer, amendment or government action, or other action or
agreement will not interfere with Lessor’s ownership of the Premises or cause
Lessor to incur any additional liability with respect to the
Premises.
12
(f) If
any improvement, now or hereafter constructed, shall (i) encroach upon any
setback or any property, street or right-of-way adjoining the Premises, (ii)
violate any zoning restrictions, including without limitation height or set-back
restrictions, or the provisions of any restrictive covenant affecting the
Premises, (iii) hinder or obstruct any Easement Agreement to which the Premises
is subject or (iv) impair the rights of others in, to or under any of the
foregoing, Lessee shall, promptly after receiving notice or otherwise acquiring
knowledge that the same violates applicable law, either (A) obtain from all
necessary parties waivers or settlements of all claims, liabilities and damages
resulting from each such encroachment, violation, hindrance, obstruction or
impairment, whether the same shall affect Lessor, Lessee or both, or (B) take
such action as shall be necessary to remove all such encroachments, hindrances
or obstructions and to end all such violations or impairments, including, if
necessary, making alterations; provided, however, that with respect to any
improvement in existence as of the Commencement Date, the foregoing remedial
actions set forth in clauses (A) and (B) above need not be undertaken unless and
until enforcement action is taken by any interested party which may result in a
forfeiture and/or impose any liability upon Lessor and/or Lessee
hereunder. Lessee shall not settle, compromise or resolve any such
claim by any third party exceeding Fifty Thousand Dollars ($50,000.00) without
Lessor’s prior written consent, which shall not be unreasonably withheld,
conditioned or delayed.
12. ENVIRONMENTAL. (a)
Lessee shall perform, at Lessee’s expense, testing, certification, inspection,
and any other requirement of any governmental authority with jurisdiction of all
components of the UST systems as required by the laws and regulations of the
governmental authorities having jurisdiction over the Premises including, but
not limited to, underground storage tank and line tightness tests and provide
the results to Lessor promptly after receipt.
(b) If
the Premises are subject to existing contamination that is the being remediated
and/or monitored, Lessee assumes responsibility for the continuation of such
remediation and/or monitoring in compliance with all applicable Governmental
Regulations and all laws, orders and regulations pertaining to environmental
matters (“Environmental Laws”), all at Lessee’s sole cost and expense or
responsibility. The provisions hereof shall survive the expiration or
earlier termination of this Lease.
(c) Lessor
shall have no liability or responsibility for any existing contamination or
contamination discovered before, on or after the Commencement Date or during the
Term of this Lease, whether or not caused by Lessee, its agents, employees,
successors or assigns, before, on or after the Commencement Date. If
at any time during the Term of this Lease, Lessee discovers petroleum
contamination at the Premises or experiences a release of petroleum product or
of any hazardous or toxic substance, or there is an increase in contamination
levels at the Premises above those reported to Lessor prior to the Commencement
Date, Lessee shall notify Lessor and all applicable governmental authorities of
such event and Lessee shall be responsible for compliance with all Governmental
Regulations regarding the same and for all costs and expenses associated with
such contamination and/or release, including, without limitation any
contamination discovered, or set forth in a tank closure report, when the USTs
are removed, repaired or replaced at a Site. If Lessee shall fail,
refuse or neglect to report and/or remediate contamination (or release, as the
case may be) as mandated by governmental authorities for twenty (20) days after
written notice from Lessor (provided; however, that if Lessee undertakes to cure
during such twenty (20) day period, such period shall be automatically extended
so long as Lessee has reported such matter and has notified Lessor in writing
that it has reported such matter and Lessee is diligently prosecuting a cure to
completion), Lessor may report and/or remediate that contamination at Lessee’s
cost and expense. Lessee covenants and agrees to reimburse and
promptly pay to Lessor all costs paid or incurred by Lessor associated with the
release, contamination and remediation, together with interest thereon at the
Default Rate. If Lessee fails to reimburse Lessor within thirty (30)
days of demand therefor, such unpaid amount shall become additional rent due
hereunder. Nothing herein shall obligate Lessor to remediate or take
any action with respect to any contamination at the Premises. The provisions
hereof shall survive the expiration or earlier termination of this
Lease.
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(d) Lessee
shall be responsible for and shall defend, indemnify and hold harmless Lessor
from any action, claim, notice or penalty resulting from any breach of its
obligations under this Section 12 and any release and/or other contamination at
or emanating from the Premises and from all costs (including, without
limitation, attorneys’ fees, costs and disbursements), claims, damages and
liability resulting from environmental conditions at the Premises whether known
or unknown as of the Commencement Date and whether or not caused by Lessee, its
agents, employees, successors, assigns, or third parties, including sub-surface
contamination discovered after the Commencement Date and any matter arising as a
result of Lessee’s failure to comply with all Governmental Regulations
pertaining to environmental matters. The foregoing obligations of
Lessee shall survive the expiration or termination of this
Lease.
(e) Lessee shall deliver to
Lessor copies of all material correspondence to and from governing authorities
regarding environmental activities at the Premises, including, without
limitation, correspondence regarding notices of violations, releases (including
new releases) and closure letters. Lessee shall deliver to Lessor,
and require its environmental contractor(s) to deliver to Lessor, copies of all
spill and release notifications and reports given to governing authorities
regarding the Premises. Additionally, Lessee agrees to furnish to
Lessor upon request therefor, copies of all remediation action workplans,
monitoring reports, tank and line testing results, Stage II Vapor Recovery test
results, fire suppression test results, cathodic protection test results, UST
registrations and related documents, and reimbursement claims filed with state
tank funds. Furthermore, if Lessor delivers written notice to Lessee
that it reasonably suspects that a petroleum release, not yet reported by Lessee
to the appropriate governing authorities has occurred at the Premises, or if
requested by governmental authorities, Lessor also shall have the right to
obtain, and Lessee shall provide to Lessor, copies of all petroleum inventory
reconciliation records. In addition, Lessee shall provide to Lessor upon request
with Lessee’s estimate of cost to closure (i.e., remediation in compliance with
governmental requirements) for any reported release, spill or other
environmental event.
(f) NOTWITHSTANDING
THAT THE USTs HAVE BEEN AND CONTINUE TO BE LOCATED AT THE PREMISES, LESSEE
HEREBY ACKNOWLEDGES THAT LESSOR IS NOT THE OWNER OF THE USTS, WHICH ARE ALL
OWNED BY LESSEE AND ACCORDINGLY, LESSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WARRANTIES OF FITNESS OR OF
MERCHANTABILITY. Lessee agrees to defend, indemnify and hold Lessor
harmless from and against all actions, claims, liabilities, costs and expenses
associated with or arising out of the use, possession or ownership of the USTs
and for the removal of the USTs upon the expiration or earlier termination of
the Lease. In the event of any default by Lessee of the Lease terms or at the
expiration or earlier termination of this Lease, Lessee, at the option of
Lessor, shall remove the USTs and all replacements thereof and any contaminated
soil from the Premises in accordance with applicable laws, rules and regulations
and Lessee shall remediate any conditions not in compliance with such applicable
laws, rules and regulations. Such tests shall be performed no earlier
than fifteen (15) days prior to the conveyance of the UST systems to the
Lessor. The provisions hereof shall survive the expiration or earlier
termination of this Lease.
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(g)
Notwithstanding the foregoing, at the expiration or earlier termination of this
Lease, Lessee, at Lessor's sole discretion and election, shall (i) convey the
USTs to Lessor or its assignee for $10.00, or (ii) remove all existing USTs, and
any contaminated soil from the Premises in accordance with applicable laws,
rules and regulations and, in either case, Lessee shall remediate any conditions
not in compliance with such applicable laws, rules and regulations and indemnify
and hold harmless Lessor regarding the same. If Lessor elects to have
the USTs conveyed to it or its assignee, Lessor shall notify Lessee of such
election not later than three (3) months prior to the expiration of the Lease or
in the event of an earlier termination of the Lease as soon as is
practical. If Lessor or its assignee elects to purchase the USTs
under the terms herein, Lessee, at Lessee's sole cost and expense shall test the
USTs and shall provide Lessor with satisfactory evidence that the USTs and lines
test tight. The provisions hereof shall survive the expiration or
termination of this Lease.
(h) Lessee
shall also perform a Phase II site assessment to include UST and line tests on
the Premises by a licensed, fully insured professional engineer acceptable to
Lessor, at the expiration or earlier termination of this Lease, at Lessee's sole
cost and expense, time being of the essence. Lessee must provide
Lessor with a detailed written scope of work and evidence of necessary permits
at least ten (10) business days in advance of any work, so that Lessor may have
the opportunity to have a representative on-site or available. Lessee
or Lessee's contractor shall deliver to Lessor a Certificate of Insurance with
public liability policy limits of not less than One Million Dollars ($1,000,000)
naming Lessor as an additional insured (and any additional affiliates as so
requested by Lessor), prior to the commencement of any such
testing. Lessee shall deliver to Lessor a copy of the site assessment
results within said thirty (30) day period or within five days of receipt of the
same whichever is earlier. The Phase II site assessment shall
determine whether a petroleum release has occurred and, if so, to determine the
magnitude of such release. If the results of the site assessment show
levels of petroleum contamination in violation of applicable environmental laws,
rules and regulations, then Lessee shall undertake to remediate the conditions
set forth in such site assessment in accordance with a work schedule approved in
writing by Lessor prior to the commencement of such work.
(i) Anything
herein to the contrary notwithstanding, Lessee agrees to restore the Premises to
its former or better condition upon completion of its testing and/or
inspections, to cause no interference with the business being conducted on the
Premises, if any, and Lessee further agrees to defend, indemnify and hold
harmless Lessor and the owner of the Premises from and against any and all
claims, losses, demands, actions, injuries or damages brought or
incurred by any party, including Lessor, as a result of Lessee's testing and/or
inspections pursuant to this Lease. Lessee shall keep the results of
any such testing and inspections strictly confidential and shall not submit a
copy of any such report or assessment to any governmental agency unless
specifically required by applicable law; and if so required, Lessee shall
simultaneously provide to Lessor a copy of any information submitted to such
agency. The provisions hereof shall survive the expiration or
termination of this Lease.
15
(j) If
a violation of Environmental Laws occurs or is found to exist and, in Lessor’s
reasonable judgment, the cost of remediation of, or other response action with
respect to, the same is likely to exceed One Hundred Thousand Dollars
($100,000.00), Lessee will
provide to Lessor, within ten (10) days after Lessor’s request therefor,
adequate financial assurances, as determined in Lessor’s reasonable discretion,
that Lessee will effect such remediation in accordance with applicable
Environmental Laws, and fulfill Lessee’s indemnification obligations that could
reasonably be expected to arise as a result of such violation. Such
financial assurances shall be in an amount equal to Lessor’s reasonable estimate
of the anticipated cost of such remedial action to cure such violation,
including, without limitation, all costs, fees and expenses in connection
therewith and may be in the form of insurance, escrowed funds or appropriate
bonding, as reasonably acceptable to Lessor.
(k) Notwithstanding
any other provision of this Lease, if a violation of Environmental Laws occurs
or is found to exist and the Term would otherwise terminate or expire, then, at
the option of Lessor, (i) the Term shall be automatically extended beyond the
date of termination or expiration and this Lease shall remain in full force and
effect beyond such date until the earlier to occur of (1) the completion of
all remedial action in accordance with applicable Environmental Laws or
(2) the date specified in a written notice from Lessor to Lessee
terminating this Lease and (ii) the Fixed Annual Rent for the then extended Term
of this Lease shall be the greater of (x) the Fixed Annual Rent set forth herein
or (y) the then fair market value for the Premises based upon the highest and
best use of the Premises; provided, however, that if the Premises may be used
for the highest and best use during the period that Lessee is remediating any
contamination and/or curing any violation of Environmental Laws, then and only
in such event, Lessee shall not be required to pay Lessor Rent for access to the
Premises.
(l) From and after the
default by Lessee of its obligations under the terms and conditions of this
Lease, Lessee hereby collaterally assigns to Lessor all right, title and
interest of Lessee, including, without limitation, the right to receive funds,
in and to the Environmental Funding Agreement (as that term is defined in the
PSA); provided, however, that Lessor hereby grants Lessee a license to collect
and apply such funds as long as this Lease remains in full force and
effect. Further, after a default beyond the expiration of any
applicable notice and cure period, Lessor shall have the right to exercise any
and all rights held by Lessee under the PSA Documents with respect to any and
all environmental matters. Any election of remedies by Lessee,
Purchaser or any affiliates of either party with respect to any work to be
performed at any portion of the Premises shall require Lessor’s prior written
approval, which approval shall not be unreasonably withheld, conditioned or
delayed.
(m) Without limiting Section
11 above, Lessee, at its sole cost and expense, will at all times promptly and
faithfully discharge and perform all of the covenants set forth in the deed to
the Premises relating to required work with respect to the UST systems promptly
upon request of Lessor in contemplation of any sale or transfer of the Premises
pursuant to which such UST work becomes required by said covenants, if and to
the extent such UST work shall not have already been completed.
13. GUARANTY. As
a material inducement for Lessor to enter into this Lease, Lessee has caused to
be delivered to Lessor contemporaneously herewith, from Xxxx X. Xxxx also known
as Xxx Xxxx (hereinafter “Guarantor”), a
guaranty of all of Lessee’s performance of all of Lessee’s obligations hereunder
(the “Guaranty”) in the
form set forth on Exhibit “B” attached hereto. In the event of a
default by Lessee under this Lease, Guarantor shall have the obligation to
assume all of Lessee’s obligations hereunder directly (without releasing Lessee
therefor).
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14. INSURANCE. (a) Lessee
shall pay the premiums for and deliver to Lessor the following policies of
insurance, with insurance carriers that have a rating of A:-X or better as set
forth in the most current issue of Best’s Insurance Guide and a rating of A in
the latest Standard and Poor’s guide and authorized to do business in the state
in which the Premises are located, or otherwise that are acceptable to Lessor,
that shall name Lessor, and its designees as additional insureds:
(b) Prior
to the Commencement Date, Lessee shall deliver to Lessor (and to the owner of
the Premises if not Lessor) evidence of the existence and amounts of the
insurance with additional insured endorsements, named insured endorsements and
mortgagee/loss payable clauses as required herein. Lessee shall
deliver to Lessor a Certificate of Liability Insurance in connection with
Lessee’s liability policy(ies), and an Evidence of Property Insurance in
connection with Lessee’s property policy(ies). No policy shall be
cancelable or subject to reduction of coverage or other modification except
after 30 days’ prior written notice to Lessor. Neither the issuance
of any insurance policy required hereunder, nor the minimum limits specified
herein with respect to any insurance coverage, shall be deemed to limit or
restrict in any way the 1iability of Lessee arising under or out of this
Lease.
(c) Lessee shall obtain and
maintain in full force and effect throughout the Term of this Lease the
following insurance coverages:
(i) Lessee, at Lessee's
expense, shall obtain and keep in full force during the Term of this Lease a
policy of commercial general liability (including contractual liability) and
property damage insurance, with coverage of at least $3,000,000 per occurrence
for bodily or personal injury (including death) and $2,000,000 in respect of
property damage, each on a per Site basis, or in such higher amounts as Lessor
may reasonably require from time to time during the Term of the Lease, written
on an occurrence basis insuring Lessee (with Lessor and any other party Lessor
may designate as an additional insured as its interest may appear) against any
liability arising out of ownership, use, occupancy, or maintenance of the
Premises and all of its appurtenant areas. The policy shall provide
blanket contractual liability coverage. However, the 1imits of the
insurance shall not limit the liability of Lessee. In addition,
Lessee at Lessee’s expense shall obtain and keep in full force, during the Term
of this Lease an umbrella liability policy in an amount not less than
$20,000,000 in excess primary insurance on an occurrence and per Site
basis. The insurance to be maintained by Lessee pursuant to this
subsection (i) shall be primary and not contributory to any other insurance
maintained by Lessor. Terrorism coverage must be included on all
liability coverages. Notwithstanding anything to the contrary set
forth in this subsection (i), as of the Commencement Date Lessee shall, as
relates to general liability insurance for bodily or personal injury (including
death), only be required to provide insurance in the amount of $2,000,000 per
occurrence ($4,000,000
million aggregate) and an umbrella liability policy in the amount of
$10,000,000. Within ten (10) days from the date of this Lease, Lessee
shall increase its general liability insurance for bodily or personal injury
(including death) to $3,000,000 per occurrence for bodily or personal injury,
and increase its umbrella liability insurance policy to the amount of
$20,000,000 as otherwise required above in this subsection. In the
event that Lessee does not obtain and deliver insurance certificates to Lessor
evidencing such additional coverages in compliance with the terms and
conditions of this Lease within ten (10) days from the date of this
Lease, Lessee may, in addition to any other remedies available to it hereunder
or otherwise at law, declare Lessee in default of its obligations under this
Lease and Lessor may also, but shall not be obligated to, obtain a insurance for
such additional coverages at Lessee’s expense, in which event all costs, fees
and expenses incurred by Lessor with respect o such insurance shall be deemed
additional rent and shall be paid by Lessee within fifteen (15) days after
written demand by Lessor.
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(ii) Lessee, at Lessee's
expense, shall obtain and keep in force during the Term of this Lease a “Special
Form” (as such term is used in the insurance industry) policy of property
insurance covering loss or damage to the Premises. This insurance
shall be in an amount not less than the full guaranteed replacement cost of the
buildings(s) (less slab, foundation, supports and other customarily excluded
improvements). The policy shall contain only standard printed
exclusions and must include Equipment Breakdown (boiler and machinery) coverage
or, if such coverage is separate, a joint loss agreement must be obtained in
form and substance acceptable to Lessor; include an agreed value endorsement
waiving any co-insurance penalty, and an ordinance or law coverage endorsement
covering increased costs resulting from changes in laws or codes, and demolition
and removal of the damaged structure. In addition, the policy shall
include a “Loss Payable Provisions” endorsement (ISO Form CP 12 18 06 95 or
equivalent) naming Lessor as “Loss Payee” thereunder in addition to Lessor being
named insured and any lender of Lessor being added as mortgagee/loss
payee. In no event shall any deductible payable in connection with
such policy with respect to any individual Site exceed
$10,000. Terrorism coverage must be included. The
insurance shall provide for payment of loss jointly to Lessor and Lessee;
provided, however, that, as long as Lessee is not in default under this Lease
beyond the expiration of any applicable notice and cure period, Lessor shall
allow the proceeds to be available to Lessee to pay the cost of restoring damage
to the Premises by resulting from such casualty and, upon completion of such
repairs and/or restoration and the payment for same, and provided that Lessee is
not in default under this Lease beyond the expiration of any applicable notice
and cure period, Lessee shall be entitled to the balance of such
proceeds.
(iii) If any Site comprising
the Premises is located in Flood Zone A or V as defined by the Federal Emergency
Management Agency (FEMA), Lessee, at Lessee's expense, shall obtain and keep in
force during the Term of this Lease a policy of insurance covering loss or
damage due to flood with respect to the Premises. The insurance shall
provide for payment of loss jointly to Lessor and Lessee; provided, however,
that, as long as Lessee is not in default under this Lease, Lessor shall allow
the proceeds to be available to Lessee to pay the cost of restoring damage to
the Premises by resulting from such casualty and, upon completion of such
repairs and/or restoration and the payment for same, and provided that Lessee is
not in default under this Lease, Lessee shall be entitled to the balance of such
proceeds.
(iv) Lessee also shall
obtain and keep in force during the Term of this Lease a policy of rent
interruption insurance with a period of indemnity not less than twelve (12)
months from time of loss and an extended period of indemnity of three hundred
sixty-five (365) days. This insurance shall cover all taxes and
insurance costs for the same period in addition to twelve (12) month's Fixed
Annual Rent amount.
(v) If Lessee (or any
sublessee or other occupant of a Site comprising the Premises) offers alcoholic
beverages for sale from the Premises, Lessee or such other occupant of the Site,
shall obtain, or shall cause such third (3rd)
party to, carry and maintain liability insurance which shall include coverage
for all liabilities arising out of the dispensing or selling of alcoholic
beverages imposed under any laws, including, without limitation a “dram shop” or
alcoholic beverage control act.
(vi) If and to the extent
required by applicable law, Lessee also shall obtain and keep in force during
the Term of this Lease a worker's compensation policy, insuring against and
satisfying Lessee's obligations and liabilities under the worker's compensation
laws of the state in which the Premises are located and shall also include a
minimum of $1,000,000 for employer’s liability coverages.
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(vii) Should any financial
assurance requirements pursuant to Environmental Laws be imposed on Lessee’s use
of, or activities at, the Premises, Lessee promptly and timely shall comply with
those requirements as they take effect.
(viii) Lessee shall maintain
pollution liability insurance in favor of Lessor which names Lessor as an
additional insured as specifically provided below in this Section, and any third
parties that may be affected, in an amount of at least $1,000,000 per occurrence
providing coverage for the investigation and/or remediation of any hazardous
materials (including but not limited to petroleum products) released at, on,
under or from the Premises, property damage (including, without limitation,
natural resource damages) and compensation for
personal injuries, costs of defense and legal liability to third
parties with a deductible not to exceed $50,000 per incident. Lessee
shall provide a certificate of insurance evidencing such required coverage prior
to the Commencement Date, and such certificate shall provide that the policy may
not be cancelled or amended in any material respect without thirty (30) days'
prior written notice to Lessor.
(d) Lessee
shall name Lessor as additional insureds for liability coverages and named
insured for property coverages and shall name Lessor’s designees, and Lessor’s
successor(s), assignee(s), nominee(s) and agents with an insurable interest.
(e) If
requested by Lessor, the policies of insurance required to be maintained
hereunder shall bear a standard first mortgage endorsement in favor of any
holder or holders of a first mortgage lien or security interest in the property
with loss payable to such holder or holders as their interest may
appear.
(f) Lessee
hereby waives and releases any and all right of recovery against Lessor,
including, without limitation, employees and agents, arising during the Term of
the Lease for any and all loss (including, without limitation, loss of rental)
or damage to property located within or constituting a part of the Premises
unless such loss is caused by the gross negligence or willful misconduct of a
Lessor Party. This waiver is in addition to any other waiver or
release contained in this Lease. Lessee shall have its insurance policies issued
in such form as to waive any right of subrogation that might otherwise exist,
and shall provide written evidence thereof to Lessor upon written
request.
15. MAINTENANCE;
CASUALTY; RESTORATION. (a) Lessee, at its expense,
shall make all repairs, restorations of damage from fire or other casualty and
replacements (including, in either case, structural), and provides all
maintenance, required to keep the building, equipment, personal property and
improvements in a good, sightly and safe operating condition that is in
compliance with all laws and regulations, including maintenance, repairs,
painting and replacements made necessary by reason of ordinary wear and tear,
damage by the elements and obsolescence, and shall keep adjacent sidewalks,
curbs and driveways in good and safe condition and free from snow, ice and
obstructions, keep the yard area free of trash, junk and debris, keep grass,
plantings, shrubs etc. trimmed and neat, and replace damaged glass and light
bulbs and fixtures without delay. Repairs and replacements shall be done in a
good and workmanlike manner with materials equal in quality and class equal to
or better than work or installations existing at the time that the damage or
injury occurred. Lessee shall commit no act of waste to the Premises
or improvements.
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(b) Lessee will be
responsible at its sole cost and expense to install and perform the work set
forth on Schedule “F” attached hereto and by this reference made a part hereof
(the “Lessee’s Upgrade Work”) within twenty-four (24) months after the date of
this Lease. Lessee shall deliver to Lessee at the execution of this
Lease, an amount equal to the cost of Lessee’s Upgrade Work. Funds
will be released from escrow on a pro rata basis as Lessee’s Upgrade Work is
completed.
(c) In the event of damage
to the Premises from fire or other casualty, Lessee shall give Lessor prompt
written notice thereof and shall commence and complete, at Lessee’s cost and
expense, the restoration of such damage so as to render the Premises in the same
or better condition as it was immediately prior to such fire or other
casualty. Lessee is not entitled to any rent abatement during or
resulting from any partial or total destruction of the Premises from any
casualty, and in no event is Lessee entitled to terminate the Lease as a result
thereof.
(d) Lessor and Lessor’s
lender, in their discretion and upon notice to Lessee (except that no notice to
Lessee shall be required if an Event of Default has occurred and is continuing),
may adjust, collect and compromise all claims under any of the insurance
policies required by Section 14 (except public liability insurance claims
payable to a person other than Lessee, Lessor or Lessor’s lender) and to execute
and deliver on behalf of Lessee all necessary proofs of loss, receipts, vouchers
and releases required by the insurers. Provided that no Event of
Default has occurred and is continuing, Lessee shall be entitled to participate
with Lessor and Lessor’s lender in any adjustment, collection and compromise of
the net award payable in connection with a casualty. So long as an Event of
Default has not occurred and is not then continuing, Lessee may settle,
compromise, adjust and collect any such claims upon written notice to Lessor and
shall deposit such amounts in excess of Seventy-Five Thousand Dollars
($75,000.00) in an account designated by Lessor to be used for the
reconstruction of the Premises as provided below in Section 15(f). If
an Event of Default has occurred and is continuing, Lessee agrees to
sign, upon the request of Lessor or Lessor’s lender, all such proofs of loss,
receipts, vouchers and releases. If Lessor or Lessor’s lender so
requests, Lessee shall adjust, collect and compromise any and all such claims,
and Lessor and Lessor’s lender shall have the right to join with Lessee
therein. Any adjustment, settlement or compromise of any such claim
shall be subject to the prior written approval of Lessor and Lessor’s lender,
and Lessor and Lessor’s lender shall have the right to prosecute or contest, or
to require Tenant to prosecute or contest, any such claim, adjustment,
settlement or compromise. Each insurer is hereby authorized and
directed to make payment under said policies, including return of unearned
premiums, directly to Lessor or, if required by the mortgage, to Lessor’s lender
instead of to Lessor and Lessee jointly, and Lessee hereby appoints each of
Lessor and Lessor’s lender as Lessee’s attorneys-in-fact to endorse any draft
therefor. The rights of Lessor under this Section 15(e) shall be
extended to Lessor’s lender if and to the extent that any mortgage so
provides.
(e) If Lessee shall fail to
comply with its obligations under this Section, for more than twenty (20) days
after notice to Lessee (or such longer period if Lessee has commenced to comply
with its obligations under this subsection (e) and has notified Lessor in
writing that it shall complete such obligations), then Lessor or its
agent may enter upon the Premises in order to take such remedial action as is
necessary and may charge the cost of repair to Lessee as additional rent due
with Lessee’s next monthly installment of Fixed Annual Rent. Lessee’s
failure to pay such charges within fifteen (15) days of Lessor’s demand shall be
treated as a failure to pay rent when due and subject to the same
remedies.
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(f) Lessee shall provide
Lessor with an engineering or property condition report (at Lessee’s sole cost
and expense and in form and substance satisfactory to Lessor, in Lessor’s sole
discretion) not more than twenty-four (24) months nor less than eighteen (18)
months prior to the end of the Initial Term or any Renewal Term (a “Property
Condition Report”). If (i) such Property Condition Report lists
replacements of the roof or HVAC systems required on the Premises during the
remainder of the Initial Term or any Renewal Term, or (ii) an alteration or
repair to the Premises is required by any applicable Governmental Regulation
during the last eighteen (18) months of the Initial Term or any Renewal Term,
then, provided such alteration or repair is the result of normal wear and tear
and not due to neglect or waste by Lessee, then the cost of such alteration or
repair, as the case may be, will be apportioned between Lessor and Lessee with
Lessee’s share equal to the cost of such alteration or repair, as the case may
be, multiplied by a fraction, the numerator of which shall be the remainder of
the Term from the time such alteration or repair needs to be made pursuant to
subsections (i) and (ii) above, and the denominator of which shall be the
anticipated useful life of such alteration or repair, as the case may
be. If, after any such apportionment, any Renewal Option is exercised
in accordance with Section 6, the cost of such alteration or repair will be
re-apportioned accordingly. If such alteration or repair is due to
neglect or waste by Lessee, Lessee will bear the full cost of such alteration
and repair, including any reasonable costs incurred by Lessor to ensure that the
alteration and repair are completed, and such alteration or repair shall be made
in accordance with Section 22 of this Lease.
(g) In the case of any
alteration or restoration costing in excess of Two Hundred Fifty Thousand
Dollars ($250,000), Lessor (or Lessor’s lender if required by any mortgage)
shall hold the net award in a fund (the “Restoration Fund”) which shall be used
for the alteration and/or restoration of the Site in question and disburse
amounts from the Restoration Fund only in accordance with the following
conditions:
(i)Lessee shall commence the restoration as soon
as reasonably practical and diligently pursue completion of such restoration to
completion;
(ii) prior to commencement of restoration, (A) the
architects, contracts, contractors, plans and specifications and a detailed
budget for the restoration shall have been approved by Lessor, such detailed
budget shall reflect that the Restoration Fund is sufficient to cover the costs
of restoration, including any additional insurance required as a result of
restoration, and payments of Fixed Annual Rent due under this Lease (if Lessor
reasonably determines that the Restoration Fund is insufficient to cover such
costs, Lessee must deposit such required excess amount as directed by Lessor),
(B) Lessor and Lessor’s lender shall be provided by Lessee with mechanics’ lien
insurance, “owner contractor’s protective liability insurance” (if available),
builder’s risk completed value insurance and acceptable performance and payment
bonds which insure satisfactory completion of and payment for the restoration,
are in an amount and form and have a surety acceptable to Lessor, and name
Lessor and Lessor’s lender as additional dual obligees, and (C) appropriate
waivers of mechanics’ and materialmen’s liens shall have been
filed;
(iii)at the time of any disbursement, (A) no Event
of Default shall exist (B) all materials installed and work and labor performed
(except to the extent being paid out of the requested disbursement) in
connection with the restoration shall have been paid in full, and (C) no
mechanics’ or materialmen’s liens or stop orders or notices of pendency shall
have been filed or threatened against the Premises and remain undischarged or
shall be fully bonded to the satisfaction of Lessor;
(iv)disbursements shall be made no more frequently
than once a month and be in an amount not exceeding the cost of the work
completed since the last disbursement, upon receipt of (A) satisfactory
evidence, including architects’ certificates, of the stage of completion, the
estimated total cost of completion and performance of the work to date in a good
and workmanlike manner in accordance with the contracts, plans and
specifications, (B) waivers of liens or partial waivers of liens, as the case
may be, for the work completed through the last disbursement, (C) contractors’
and subcontractors’ sworn statements as to completed work and the cost thereof
for which payment is requested, (D) a satisfactory bringdown of title insurance
and (E) other evidence of cost and payment so that Lessor and Lessor’s lender
can verify that the amounts disbursed from time to time are represented by Work
that is completed, in place and free and clear of mechanics’ and materialmen’s
lien claims;
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(v)each request for disbursement shall be
accompanied by a certificate of Lessee, signed by the president or a vice
president of Lessee, describing the work for which payment is requested, stating
the cost incurred in connection therewith, stating that Lessee has not
previously received payment for such work and, upon completion of the work, also
stating that the work has been fully completed and complies with the applicable
requirements of this Lease and with all Governmental Regulations;
(vi)Lessor may retain ten percent (10%) of the
Restoration Fund until the work is fully completed;
(vii)if the Restoration Fund is held by Lessor, the
Restoration Fund may not be commingled with Lessor’s other funds and shall not
bear interest; and
(viii) such other reasonable conditions as
Lessor or Lessor’s lender may impose; including without limitation, if the costs
of restoration exceed $1,000,000 and Lessor so requests, a requirement that
Lessee hire a casualty consultant.
(ix) Prior to commencement of restoration and at any
time during restoration, if the estimated cost of completing the restoration
work free and clear of all liens, as commercially reasonably determined by
Lessor, exceeds the amount of the net award available for such restoration, the
amount of such excess shall, upon demand by Lessor, be paid by Lessee to Lessor
to be added to the Restoration Fund. Any sum so added by Lessee which
remains in the Restoration Fund upon completion of restoration shall be refunded
to Lessee. For purposes of determining the source of funds with
respect to the
disposition of funds remaining after the completion of restoration, the net
award shall be deemed to be disbursed prior to any amount added by
Lessee.
(h) Notwithstanding anything herein to the
contrary, if within the last two (2) years of the Term then in effect (i) there
is damage or destruction to a Site that will cost in excess of $500,000 to
repair, or (ii) if at any time during the Term there is damage or destruction to
a Site and restoration of the Site to its previous use is prohibited by
applicable governing authorities (including zoning boards or Lessee’s inability
to obtain proper permits and approvals), Lessor or Lessee may, at its respective
option and in its respective sole discretion, elect to terminate the Lease with
respect to such Site and in such event Lessee shall assign and deliver to Lessor
any insurance payments received by Lessee with respect to such damage or
destruction together with payment by Lessee of any deductible with respect to
such insurance proceeds; provided, however, that if Lessor shall have
given a notice of termination in accordance with the foregoing and Lessee shall
thereafter be permitted under this Lease to effect a Renewal Option, and the
Renewal Term is effected pursuant thereto, then Lessor’s termination notice
shall not have any effect. In the event the Lease is terminated with
respect to a Site as a result of subsection (ii) of this subsection (h), then
the Rent due to Lessor under this Lease shall be adjusted by the amount set
forth with respect to each Site on Schedule “A” attached hereto and by this
reference made a part hereof (with respect to each Site, the “Adjustment
Amount”), which Adjustment Amount shall be increased by two and one-half percent
(2.5%) per annum for each year during the Term of this
Lease.
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(i) Notwithstanding anything
herein to the contrary, if within the last two (2) years of the Initial Term or
Renewal Term then in effect there is damage or destruction to a Site and
restoration of the Site to its previous use is prohibited by applicable
governing authorities (including zoning boards or Lessee’s inability to obtain
proper permits and approvals), Lessee may, at its option and in its sole
discretion, elect to terminate the Lease with respect to such Site and assign
and deliver to Lessor any insurance payments received by Lessee with respect to
such damage or destruction together with any deductible payable in connection
with such insurance payment. In such event the Rent and other charges
due to Lessor under this Lease shall be adjusted accordingly.
16. CONDEMNATION. (a) Lessee
shall give Lessor and Lessor’s lender immediate written notice of Lessee’s
receipt of a condemnation notice. If the whole or any substantial
part of any Site (to the extent such partial taking would have a material
adverse affect on the business then being conducted on the Site) shall be
acquired or condemned by eminent domain or for any public or quasi-public use or
purpose, then, and in that event, (x) the Term of this Lease shall cease and
terminate with respect to such Site from the date of title vesting, (y) Fixed
Annual Rent shall be reduced by the Adjustment Amount for such Site set forth on
Schedule “A” annexed hereto (which Adjustment Amount shall be increased by two
and one-half percent (2.5%) per annum for each year during the Term of this
Lease), and (z) Lessee shall have no claim against Lessor for the value of any
unexpired Term of this Lease with respect to such Site. Lessor and
Lessor’s lender are authorized to collect, settle and compromise, in their sole
and absolute discretion (and, if no Event of Default exists, upon notice to
Lessee) and shall consult with Lessee, but this shall not be construed so as to
require Lessor to obtain Lessee’s approval, which shall not be required in any
case, the amount of any net award. No agreement with any condemnor in settlement
or under threat of any condemnation shall be made by Lessee without the written
consent of Lessor and Lessor’s lender. No part of any award shall
belong to Lessee, except that Lessee may make a separate claim with the
condemning authority for, or shall be entitled to that portion of the award
expressly attributed to (a) the Lessee’s then book value of leasehold
improvements made to the Site by Lessee, (b) Lessee’s Personal Property or the
cost of removal thereof, and (c) relocation/moving costs and, additionally, (d)
Lessee may make a separate claim with the condemning authority for Lessee’s
enterprise or business value. Notwithstanding the foregoing, if the
condemnation award is a single award for the entire value of the Site, inclusive
of the fee and leasehold interests of the parties, but without any allocations
as between the two estates, then the portion of the award that Lessee is
entitled to shall be limited to (x) the Lessee’s then book value of Lessee’s
leasehold improvements made to the Site by Lessee, (y) the book value of Lessee’
Personal Property or the cost of removal thereof and (z) any relocation/moving
costs of Lessee. In the event there is any environmental
contamination at any Site which is subject to a condemnation proceeding,
notwithstanding such condemnation proceeding, Lessee shall continue to be
responsible to remediate any and all contamination in accordance with the terms
of this Lease.
(b) If, however, the
condemnation does not materially adversely affect Lessee’s ability to conduct
its business at a particular Site comprising the Premises, then the condemnation
shall be deemed to be of less than a substantial part of such Site. If less than
a substantial part of any of the Sites comprising the Premises shall be acquired
or condemned by eminent domain or for a public or quasi-public use or purpose,
then the Term of this Lease and the Fixed Annual Rent payable by Lessee
hereunder shall remain the same and unaffected by such condemnation and Lessor
shall be entitled to the entire award in connection therewith; provided,
however, that Lessor shall make the award available to Lessee, as long as Lessee
is not in default hereunder, notice and cure period, to pay the cost of any
repair or restoration of the Site affected by such proceeding required by reason
of such condemnation. If any condemnation or other taking shall
result in damage to any of the Sites comprising the Premises, and this Lease
shall not terminate, then Lessee shall repair such damage at its cost and
expense. The award, if any, in connection therewith shall be made
available to Lessee to pay the cost of repairing and restoring the Site in
question to a useful condition.
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17. LESSOR
RIGHT OF ENTRY. (a) Lessor shall not be required to
render any services to Lessee or to make any repairs or replacements to the
Premises except those specifically described in this Lease.
(b) Upon
reasonable prior notice, which may be oral, and other than an emergency for
which no notice shall be required, Lessor, for itself and its agents, reserves
the right to enter the Premises for the purposes of examining and inspecting and
ensuring Lessee’s compliance with all applicable laws and the terms and
conditions of this Lease at said Premises and any property of Lessor thereon and
to make any necessary repairs thereto. Lessor shall not be liable in
any manner to Lessee by reason of such entry or the performance of repair work
in the Premises and the obligations of Lessee hereunder shall not be thereby
affected. Lessee shall permit Lessee’s predecessor in title to the
Premises access to the Premises in order to comply with the terms and covenants
set forth in the deed conveying the Premises to Lessee.
(c) The Lessee agrees to
permit the Lessor or the Lessors' agents to show the Premises at any reasonable
times to persons wishing to purchase or Lease the same.
18. SUBORDINATION. (a) This
Lease is subject and subordinate to all ground leases and overleases and to all
mortgages or other security instruments which may now or hereafter affect this
Lease or any Site, and to all renewals, modifications, consolidations,
replacements, extensions, substitutions or assignments thereof and this clause
shall be self-operative and no further instrument of subordination shall be
required in order to effect same so long as Lessor obtains a non-disturbance
agreement (herein, the “Non-Disturbance Agreement”) from the holder of any
mortgage entered into by Lessor and filed against all or any of the
Sites. The Non-Disturbance Agreement may contain additional
provisions as are customarily requested by secured lenders with liens
encumbering real property security similar to the Premises, including, without
1imitation, Lessee’s agreement to attorn as set forth below in this Section,
provided that any such provisions shall be acceptable to Lessee, which approval
shall not be unreasonably withheld, conditioned or delayed. The
parties acknowledge that the form and substance of the Non-Disturbance Agreement
attached hereto as Exhibit “C” is acceptable to them.
(b) The
Non-Disturbance Agreement shall provide that in the event of foreclosure of any
mortgage, whether superior or subordinate to this Lease, then (i) this Lease
shall continue in force, (ii) Lessee's quiet possession shall not be
disturbed if Lessee is not in default hereunder or cures such default prior
to the expiration of applicable cure periods, (iii) Lessee shall attorn and
recognize the mortgagee or purchaser at foreclosure sale (“Successor Lessor”) as
Lessee's Lessor for the remaining Term of this Lease, and (iv) the Successor
Lessor shall not be bound by (x) any payment of rent for more than one month in
advance, (y) any amendment, modification or ending of this Lease without the
Successor Lessor's consent after the Successor Lessor's name is given to Lessee,
unless the amendment, modification, or ending is specifically authorized by the
original Lease and does not require Successor Lessor's prior agreement or
consent; and (z) any liability for any act or omission of a prior
Lessor. At the request of the Successor Lessor, Lessee shall execute
an amendment to this Lease confirming the Successor Lessor on the same terms and
conditions as this Lease for the balance of the Term of this Lease, together
with all options to extend the Term of the Lease as provided
herein.
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19. SIGNAGE. Lessee
shall place any signs on the Premises Lessee desires so long as such signs are
neat, professional and reasonably relate to the business being conducted at the
Premises. All signs shall be in compliance with all applicable
laws. All signage on or about the Premises shall be fabricated,
installed and maintained by Lessee, at Lessee’s sole cost and
expense. Lessee shall pay the charges, if any, for all sign
permits. No signs shall contain any material that would be offensive,
disparaging or indecent or that would otherwise not be in keeping with
comparable service station properties.
20. ASSIGNMENT;
SUBLETTING; LESSEE FINANCING. (a) Except as otherwise
expressly provided herein, Lessee shall not assign, pledge, mortgage or
otherwise transfer its interest in the Premises, or any part thereof, without
first obtaining Lessor's written consent, which consent Lessor may withhold in
its sole and absolute discretion during the first five (5) years of the Term of
this Lease and thereafter, such consent may be withheld by Lessor in its
commercially reasonable discretion. For purposes hereof, and without
limitation, it shall be commercially reasonable for Lessor to deny consent to a
request by Lessee to assign its interest in the Premises (x) if the
proposed assignee’s net worth or creditworthiness is less than the
net worth and creditworthiness of Lessee or Guarantor (whichever is greater) as
of the date Lessee requests such consent or as of the Commencement Date, which
ever is greater; or (y) if the proposed assignee does not have experience of
reasonable length and quality with respect to operating the predominant type of
business then being operated at the Premises. Lessee may sublet the
Premises with not less than twenty (20) days prior written notice to the Lessor
which notice shall include sublessee’s name, address and phone number; provided,
however, that the term of the sublease shall not extend past the day which
immediately precedes the expiration date of the then current Term of this
Lease. In the event of any such assignment or subletting, by new
lease or otherwise, Lessee shall continue to remain jointly and severally liable
to Lessor, along with its transferee, for the performance of all of Lessee’s
obligations, including the payment of Rent, for the remainder of the Term of
this Lease. The sale or any other transfer of all or substantially
all of the assets of Lessee to any other person, or a conveyance or transfer of
Lessee’s stock or other ownership interests (if a corporation or other entity)
to any other person, shall be deemed an attempted assignment requiring
consent. In no event shall any such assignment, subletting and/or
transfer release Guarantor from its obligations under the
Guaranty. Notwithstanding the foregoing, so long as there is no
change in the operation, management or control of Lessee, Lessee shall be
permitted to transfer membership interests in Lessee for (i) tax planning or
estate planning purposes or (ii) among the members of Lessee as of the date of
this Lease; provided, however, that no membership interests in Lessee are
transferred to any party that is not a member of Lessee as of the Commencement
Date. In addition, in the event Guarantor becomes incapacitated,
Lessee shall have the right to replace Guarantor as guarantor of the Lease
and/or as the president of the managing member of Lessee; provided, however,
that such replacement shall be reasonably acceptable to Lessor (it being
acknowledged and agreed that it shall be reasonable for Lessor to withhold its
consent to any replacement (x) of Guarantor if the proposed replacement’s net
worth is less than the net worth of Guarantor as of the date Lessee requests
such replacement or as of the Commencement Date, whichever is greater; or (y) of
president of the managing member if the replacement lacks industry experience
comparable to that of Guarantor).
(b)
In the event of Lessee's surrender of this Lease or the termination of this
Lease, Lessor may, at its option, either terminate any or all subtenancies or
succeed to the interest of Lessee as sublessor thereunder. No merger
shall result from Lessee's sublease of the Premises under this Section, Lessee's
surrender of this Lease, or the termination of this Lease.
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(c)
Lessee immediately and irrevocably assigns to Lessor, as security for Lessee's
obligations under this Lease, all rent from any subletting of all or any part of
the Premises as permitted by this Lease; provided, however, that Lessee shall
have a license to collect all such rents unless and until an Event of Default
has occurred and is continuing. If an Event of Default by Lessee has
occurred and is then continuing, Lessor, as assignee and as attorney-in-fact for
Lessee, or a receiver of Lessee appointed on Lessor's application, may collect
the rent and apply it toward Lessee's obligations under this Lease.
(d) If this Lease is assigned, or
if the Premises or any part of the Premises is sublet or occupied by anyone
other than Lessee, Lessor may, after default by Lessee which remains uncured
after the expiration of any applicable notice, grace and cure period, collect
rent from the assignee, under-tenant or occupant, and apply the net amount
collected to the rent herein reserved, but no such assignment, underletting,
occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, under-tenant or occupant as tenant, or a release of
Lessee from the further performance by Lessee of covenants on the part of Lessee
herein contained.
(e) Lessee hereby acknowledges
and agrees that Lessor has a significant material interest in limiting the
amount of debt and other financing obligations incurred by
Lessee. Accordingly, at the request of Lessee, Lessor hereby consents
to Lessee incurring leasehold mortgage financing secured by the Premises which
shall be limited to a maximum principal amount of Five Million Dollars
($5,000,000.00), which amount shall be increased in each calendar year during
the Term by an amount of one percent (1%) of the amount in effect the
immediately prior calendar year (the “Lessee Financing”). Lessee
hereby acknowledges that such limitation on debt by Lessee was a material
inducement for Lessor to enter into this Lease. Other than the Lessee
Financing, Lessee hereby agrees that it shall not incur any other debt during
the Term of the Lease, as the same may be extended, without the prior written
consent of Lessor, which may be withheld by Lessor in its sole and absolute
discretion. Upon receipt of Lessee’s request, Lessor agrees to
provide an estoppel certificate with respect to this Lease in connection with
any Lessee Financing.
(f) Each and every sublease,
occupancy agreement and/or license entered into from and after the Commencement
Date must provide that (i) the same is subject to all of the terms and
conditions of this Lease and (ii) in the event of cancellation or termination of
this Lease for any reason whatsoever or of the surrender of this Lease whether
voluntary, involuntary or by operation of law, prior to the expiration date of
such agreement, including extensions and renewals granted thereunder, the
proposed occupant agrees to make full and complete attornment to Lessor for the
balance of the Term of such agreement, at the option of Lessor at any time
during the occupancy of a portion of the Premises, which attornment shall be
evidenced by an agreement in form and substance reasonably satisfactory to
Lessor, in which the proposed occupant agrees to execute and deliver at any time
within fifteen (15) days after request of Lessor, or its successors and assigns,
and the occupant waives the provisions of any law now or hereafter in effect
which may give the occupant any right of election to terminate the agreement or
to surrender possession of any portion of the Premises in the event any
proceeding is brought by Lessor under this Lease to terminate this
Lease.
(g)
Notwithstanding anything to the contrary set forth in this Lease,
including without limitation, this Section 20, Lessor acknowledges that Lessee
intends from time to time to enter into leases with dealers to operate the
service station business at the Premises (each, a “Dealer Lease” and
collectively, the “Dealer Leases”) for all or portions of the
Sites. Nothing in this Lease shall be construed to limit Lessee’s
right to enter into such Dealer Leases, and Lessor’s consent shall not be
required for Lessee to enter into or terminate any Dealer Leases; so long as any
new Dealer Lease entered into, or any existing Dealer Lease renewed,
extended or materially modified, from and after the date of this
Lease shall provide that:(i) the Dealer Leases are expressly subject and
subordinate to this Lease and (ii) contain the provisions of Section 20(f) of
this Lease. Further, Lessor shall have no obligation or liability
under the Dealer Leases under any circumstances whatsoever, nor shall the Lessee
have any obligation to honor any Dealer Lease. In no event shall
Lessee be excused from performing its obligations under this Lease
notwithstanding the existence of a Dealer Lease on a Site. Lessee shall defend,
indemnify and hold Lessor its affiliates, officers, directors, members,
partners, shareholders, employees and agents harmless from and against any and
all losses actually incurred by Lessor, liabilities, claims, demands, suits,
actions, judgments, fines or payments, environmental or otherwise, for, or in
connection with, any claim by any party under the Dealer Leases for any matter
arising under, or in connection with, the Dealer Leases, including any accident,
injury or damage whatsoever caused to any person or property arising, directly
or indirectly, out of the business conducted at the Premises or on any of the
sidewalks adjoining the same, or arising, directly or indirectly, from any
violation of any law, agency ruling or regulation, or from any act or omission
of Lessee or any sublessee and their respective licensees, servants, agents,
customers, employees, invitees or contractors, and from and against all costs,
expenses and liabilities incurred in connection with any such claim or
proceeding brought thereon.
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21. NO
LIENS. Other than the Lessee Financing, Lessee shall not do
any act, or make any contract, which may create or be a foundation for any lien
(including mechanics or materialman’s liens) or other encumbrance upon any
interest of Lessor in the Premises. If any such lien is filed, then
Lessee, within fifteen (15) days or as soon as reasonably possible after notice
of filing, shall cause any such lien or encumbrance to be discharged of
record. NOTICE IS HEREBY GIVEN THAT LESSOR SHALL NOT BE LIABLE FOR
ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO LESSEE OR TO
ANYONE HOLDING OR OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR UNDER LESSEE,
AND THAT NO MECHANICS’ OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS
SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR IN AND TO THE
PREMISES. LESSOR MAY AT ANY TIME POST ANY NOTICES ON THE PREMISES
REGARDING SUCH NON-LIABILITY OF LESSOR.
22. ALTERATIONS;
RESTORATIONS. (a) Lessee shall make no additions,
changes, alterations or improvements to any Site comprising a part of the
Premises that are structural or have a cost in excess of $100,000, without first
obtaining Lessor's prior written consent, which may not be unreasonably withheld
if they do not adversely affect the use, utility or value of the Premises;
provided, however, that Lessor may require any alteration having a cost in
excess of $100,000 to be bonded. Any alterations or additions to any
buildings or permanent improvements authorized by Lessor shall be made in a
good, workmanlike manner, in compliance with all applicable laws, rules and
regulations, and in compliance with all insurance policies required to be
maintained by Lessee under this Lease, and , unless Lessor otherwise elects at
its option, shall upon installation become the property of Lessor and Lessee
shall have no right or interest therein except to continue to use same during
the remainder of the Term of this Lease. If any alterations
involve the replacement of equipment or parts thereto, all replacement equipment
or parts shall have a value and useful life equal to the greater of (A) the fair
value and useful life on the date hereof or (B) the fair value and useful life
of the equipment being replaced immediately prior to the occurrence of the event
which required its replacement (assuming such replace equipment was then in the
condition required by this Lease). If Lessee shall make additions,
changes, alterations or improvements to the Premises without Lessor’s prior
written consent or otherwise in violation of the provisions hereof, then at the
request of Lessor, Lessee shall at its own cost and expense remove from the
Premises all additions, changes, alterations or improvements not acceptable to
Lessor, and Lessee shall repair all damage caused by such installation and
removal, other than minor de minimus items. Any actual, reasonable
costs incurred by Lessor in removing or disposing of fixtures or repairing
damage shall be additional rent hereunder. Notwithstanding the
foregoing, Lessor shall have the right to approve alterations to any one Site
that exceed Two Hundred Thousand Dollars ($200,000.00) in any calendar year,
provided that (i) Lessor shall receive notice of, but shall have no approval
rights over, any work performed on the USTs or distribution lines, (ii) such
approval by Lessor shall not be unreasonably withheld, conditioned or delayed,
and (iii) Lessor shall be deemed to have approved any alteration if Lessor fails
to respond to Lessee’s written request for approval within thirty (30)
days.
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(b) In the case of any
alteration costing in excess of Two Hundred Fifty Thousand Dollars
($250,000.00), Lessor (or Lessor’s lender if required by any mortgage) shall
hold the net award in accordance with the provisions of Section 15(g) of this
Lease.
(c) Reference is hereby made to
that certain Master Services Agreement for Environmental Services (the “Kleinfelder
Agreement”) by and between Kleinfelder East, Inc. (“Kleinfelder”) and DAG
Enterprises, Inc. dated as of September 25, 2009 with respect to environmental
services for certain portions of the Premises. Notwithstanding
anything to the contrary set forth in this Lease, Lessee shall not perform any
work on or about the Premises which constitutes “Invasive Work” (as that term is
defined in the Kleinfelder Agreement) without the express prior written consent
of Lessor and Kleinfelder. Lessor shall not unreasonably withhold or
delay its consent to such request; provided, however, that Lessee hereby
acknowledges and agrees that if Kleinfelder does not consent to such request
from Lessee, then Lessor’s denial of Lessee’s request for consent shall be
deemed reasonable.
(d) Lessor shall reasonably
cooperate with, and shall not unreasonably interfere with, Xxxxxxxxxxx’x
performance of its obligations under the Kleinfelder Agreement, which
cooperation shall include, without limitation: (i) allowing access to the
Premises as may be reasonably necessary for Kleinfelder to perform its
obligations under the Kleinfelder Agreement, (ii) promptly executing all
documents, instruments and applications and joining in any notices that may be
reasonably required to enable Xxxxxxxxxxx’x to perform its obligations under the
Kleinfelder Agreement, and (iii) promptly providing to Lessee and Kleinfelder
any information Lessor obtains relating to contamination on the Premises or any
conditions that may affect the performance of Xxxxxxxxxxx’x obligations or
remediation costs. Any costs incurred by Lessor with respect to the
Kleinfelder Agreement shall be payable by Lessee.
23. DEFAULT. Lessor
and Lessee agree that each of the provisions of this Lease is a material and
substantial condition of the agreement between the parties relating to the Lease
of the Premises. The occurrence of any one or more of the following
(after expiration of any applicable cure period) shall, at the sole option of
Lessor, constitute an “Event of Default” under this Lease:
(i)a failure by Lessee to pay, regardless of the
reason for such failure: (x) after five (5) business days written notice that
such amount is past due, any Fixed Annual Rent, or (y) within ten (10) business
days after written notice that any other monetary obligation under this Lease is
past due;
(ii)a failure by Lessee duly to perform and
observe, or a violation or breach of, any other provision of this Lease not
otherwise specifically mentioned in this Section 23, which default continues
beyond the date that is thirty (30) days from the date on which Lessee receives
notice of such default or, if such default cannot be cured within such thirty
(30) day period and delay in the exercise of a remedy would not (in Lessor’s
reasonable judgment) cause a material adverse harm to Lessor of the Premises,
the cure period shall be extended for the period required to cure the default
(but such cure period, including any extension, shall not in the aggregate
exceed one hundred twenty (120) days; provided that Lessee
shall commence to cure the default within thirty (30) days of receipt of notice
from Lessor and shall complete such cure within such one hundred twenty (120)
day period and shall actively and diligently and in good faith proceed with and
continue the curing of the default until it shall be fully cured;
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(iii)any representation or warranty made by Lessee
herein or in any certificate, demand or request made pursuant hereto proves to
have been incorrect, when made in any material respect and Lessee fails to
correct such representation or warranty within thirty (30) days after written
notice from Lessor;
(iv)Lessee shall fail to comply with the
requirements of Section 14 and such failure continues for more than three (3)
business days;
(v)Lessee shall enter into a transaction or series
of transactions in violation of Section 20;
(vi)Lessee shall fail to occupy and use
substantially all of the Premises for the Primary Use in accordance with Section
9 or Lessee shall have abandoned substantially all of the Premises;
(vii)Lessee shall fail to maintain in effect any
license or permit necessary for the use, occupancy or operation of the Premises
and such failure continues for more than thirty (30) days after Lessee receives
written notice of such failure;
(viii)Lessee shall fail to deliver the estoppel
described in Section 33 within the time period specified therein and such
failure continues for more than fifteen (15) days after written notice with
respect to the delivery of such estoppel certificate;
(ix)Lessee or Guarantor shall fail to pay,
beyond any applicable cure period, rent under, or perform of any other material
provision of, any other contract or contracts (including any leases) that have,
in the aggregate, payment obligations over the term thereof of Two Hundred Fifty
Thousand Dollars ($250,000.00) or more if an effect of such default is to cause
the counterparties under such contracts to commence to exercise their remedies
thereunder and Lessee or Guarantor fails to cure such default within the period
allowed therefor under the relevant contract;
(x)a final, non-appealable judgment or uninsured
judgments for the payment of money in excess of Five Hundred Thousand Dollars
($500,000.00) in the aggregate shall be rendered against Lessee or Guarantor and
the same shall remain undischarged or unbonded for a period of sixty (60)
consecutive days;
(xi)Lessee or Guarantor shall (A) voluntarily be
adjudicated a bankrupt or insolvent, (B) seek or consent to the appointment of a
receiver or trustee for itself or for the Premises, (C) file a petition seeking
relief under the bankruptcy or other similar laws of the United States, any
state or any jurisdiction, (D) make a general assignment for the benefit of
creditors, or (E) be unable to pay its debts as they mature in the ordinary
course of business;
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(xii)a court shall enter an order, judgment or
decree appointing, without the consent of Lessee or Guarantor, a receiver or
trustee for it or for the Premises or approving a petition filed against Lessee
or Guarantor which
seeks relief under the bankruptcy or other similar laws of the United States,
any state or any jurisdiction, and such order, judgment or decree shall remain
undischarged or unstayed sixty (60) days after it is entered;
(xiii)Lessee shall be liquidated or dissolved or
shall begin proceedings towards its liquidation or dissolution;
(xiv)the estate or interest of Lessee in the
Premises shall be levied upon or attached in any proceeding and such estate or
interest is about to be sold or transferred or such process shall not be vacated
or discharged within sixty (60) days after it is made;
(xv)Guarantor shall (A) fail to perform its
obligations under the Guaranty beyond applicable notice and cure periods set
forth therein, or (B) repudiate the Guaranty or (C) take any action that causes
the Guaranty to terminate or be unenforceable for any reason; or
(xvi)Lessee and/or Purchaser receive written notice
from Seller under the PSA Documents that Lessee and/or Purchaser, Guarantor
and/or any of their affiliates is in default of their obligations under any of
the PSA Documents and such default is not cured prior to the expiration of any
applicable notice and cure period.
24. EVENT OF
DEFAULT; DAMAGES; REMEDIES. (a) From and after the
occurrence of an Event of Default, Lessor may:
(i) give notice to Lessee of
Lessor’s intention to terminate this Lease on the date specified in such
notice, which date shall be no earlier than twenty (20) days following
the date of such notice (the “Termination Date”). Until and including
the Termination Date, Lessee shall have the right to restore the terms of this
Lease (“Lessee’s Restoration Right”) by curing any default and, if such default
is a monetary default, by providing Lessor a security deposit in an amount equal
to (x) one (1) month’s of the Fixed Annual Rent then in effect if such monetary
default is cured within five (5) days of delivery of notice, (y) two (2) month’s
of the Fixed Annual Rent then in effect if such monetary default is cured after
five (5) days but not more than ten (10) days of delivery of notice, and
(z)three (3) months of the Fixed Annual Rent then in effect if such default is
cured at any time after ten (10) days of delivery of notice through the end of
the aforesaid twenty (20) day period. If Lessee fails to restore this
Lease as provided hereinabove, upon such date, this Lease,
the estate hereby granted and all rights of Lessee hereunder shall expire and
terminate. Upon such termination, Lessee shall immediately surrender
and deliver possession of the Premises to Lessor in the condition required by
the terms of this Lease as if such date was the Expiration Date. If
Lessee does not so surrender and deliver possession of all of the Premises,
Landlord may re-enter and repossess the Premises not surrendered by any
available legal process. Upon or at any time after taking possession
of the Premises, Lessor may, by legal process, remove any persons or property
therefrom. Lessor will be under no liability for or by reason of any
such entry, repossession or removal; or
30
(ii)subject to Lessee’s Restoration Right,
terminate Lessee’s right of possession and may repossess and re-enter the
Premises by any available legal process without thereby releasing Lessee from
any liability hereunder and, except as required by applicable law, without
demand or notice of any kind to Lessee and without terminating this
Lease. After repossession of the Premises pursuant hereto, Lessor
will have the right to relet the Premises to such tenant or tenants, for such
term or terms, for such rent, on such conditions and for such uses as Lessor in
its sole discretion may determine, and collect and receive any rents payable by
reason of such reletting. However, Lessor agrees to exercise
commercially reasonable efforts to mitigate damages and Lessee, in any event,
shall be and remain liable to Lessor for any rental shortfall between the Rent
payable hereunder by Lessee and the rent received by Lessor as a result of any
such reletting. Lessor may make such alterations in connection with
such reletting as it may deem advisable in its sole
discretion. Notwithstanding any such termination of Lessee’s right of
possession of the Premises, Lessor may at any time thereafter elect to terminate
this Lease and in such event lessor will have the rights and remedies specified
in the foregoing Section 24(a)(i).
(b) Upon re-entry by Lessor,
expiration or termination of this Lease or dispossession by summary proceeding
or otherwise, Lessee shall be responsible for the following:
(i)Rent up to the time of such re-entry,
dispossess or expiration of the Term of this Lease;
(ii)Rent for the balance of the full Term, all of
which shall be accelerated and due and payable as of the date of default,
re-entry by Lessor, termination of this Lease or entry of a judgment of
possession, whichever date first occurs (the “Accelerated Rent”) less the amount
of rent that is actually received by Lessor if and when Lessor relets the
Premises;
(iii)The payment of all actual, reasonable sums
incurred by Lessor in putting the Premises in good order or preparing the same
for re-rental, including brokerage and advertising fees;
(iv)Reasonable attorney's fees and expenses
resulting from Lessor enforcing any of the remedies described above, or in the
enforcement of this Lease or in defending any claim brought against Lessor by
Lessee against which Lessor successfully defends; and
(v) In addition, Lessor shall have
such other remedies as are then available to it by law or in
equity. Except as otherwise provided herein, all remedies are
cumulative and concurrent and no remedy is exclusive of any other
remedy. Each remedy may be exercised at any time an Event of Default
has occurred and is continuing and may be exercised from time to
time. No remedy shall be exhausted by any exercise thereof.
(c) The obligations of Lessee
under this Section shall survive the expiration or termination of this
Lease.
25. LATE
CHARGES. Any money owed by Lessee to Lessor after the due date
therefor shall bear interest at the Default Rate, from the due date until the
date paid. Lessee understands and agrees that more than three (3)
instances of dishonoring of checks and/or electronic wire transfers or
Electronic Funds Transfers during any twelve (12) month period shall be an
additional ground of default under this Lease.
26. SURRENDER;
HOLDOVER. (a) Lessee shall quit and surrender
peaceably and quietly, to Lessor, its agent or attorney, possession of the
Premises at the expiration or other termination of this Lease, vacant (free of
all occupants), broom clean and in good condition, except for ordinary wear and
tear and free of violations, and shall surrender all keys for the Premises to
Lessor at the place then fixed for the payment of Rent and shall provide Lessor
all combinations for locks, safes and vaults, passwords and codes for
computers or computer-operated equipment if any, in the
Premises. Lessee’s failure to so vacate shall subject Lessee to
liability and Lessee agrees to pay Lessor’s damages, costs and counsel fees
resulting therefrom. If upon termination of this Lease or abandonment
of the Premises by Lessee, Lessee abandons or leaves any personal property or
equipment at the Premises, such equipment or property shall be conclusively
deemed abandoned and Lessor shall have the right, without notice to Lessee, to
store or otherwise dispose of the property or equipment at Lessee's sole cost,
expense and risk, without being liable in any respect to
Lessee. Lessee agrees that any such disposition by Lessor shall be
conclusively deemed to be commercially reasonable.
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(b) If
Lessee holds over or remains in possession of the Premises after the expiration
of the Term of the Lease, or after any prior termination thereof, without any
written agreement being made or entered into between Lessor and Lessee, such
holding over or continued possession shall be deemed to be a tenancy from month
to month at a monthly rental equal to one hundred fifty percent (150%) of the
then last monthly installments of Fixed Annual Rent and additional rent payable
during the Term for the first thirty (30) days of such holdover period and
thereafter, the greater of two (2) times (x) the then last monthly installments
of Fixed Annual Rent and additional rent payable during the Term, and (y) fair
market Rent, and otherwise shall be upon the terms and conditions of this Lease,
and such tenancy shall be terminable at the end of any month by either party
upon written notice delivered to the other party at least thirty (30) days prior
to the end of such month.
(c) No act or thing done by
Lessor or any agent or employee of Lessor during the Term of this Lease shall be
deemed to constitute an acceptance by Lessor or a surrender of the Premises
unless such acceptance of surrender is specifically acknowledged by Lessor in a
writing signed by Lessor. The delivery of keys to the Premises or any
agent or employee of Lessor shall not constitute a surrender of the Premises or
effect a termination of this Lease, whether or not the keys are retained by
Lessor and, notwithstanding such delivery, Lessee shall be entitled to the
return of such keys at any reasonable time upon written request until this Lease
shall have been terminated properly.
27. WAIVERS.
(a) THE PARTIES HERETO
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
OF THE PARTIES HERETO AGAINST THE OTHER. IN THE EVENT LESSOR
COMMENCES ANY DISPOSSESS PROCEEDING FOR POSSESSION OF THE PREMISES BASED UPON A
DEFAULT BY LESSEE IN THE PAYMENT OF FIXED ANNUAL RENT OR ADDITIONAL RENT, LESSEE
WILL NOT INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR DESCRIPTION IN SUCH
PROCEEDING. IN CONNECTION WITH ANY SUCH PROCEEDING, OR IN ANY OTHER
ACTION OR PROCEEDING TO ENFORCE THIS LEASE OR OBTAIN POSSESSION OF THE PREMISES,
THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER ITS COSTS, EXPENSES AND
ATTORNEYS FEES FROM THE NON-PREVAILING PARTY.
(b) WITH RESPECT TO ANY
REMEDY OR PROCEEDING HEREUNDER, LESSEE HEREBY WAIVES THE SERVICE OF NOTICE WHICH
MAY BE REQUIRED BY ANY APPLICABLE LAW.
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(c) Except as otherwise
expressly set forth herein, Lessee hereby waives and surrenders, for itself and
all those claiming under it, including creditors of all kinds (i) any right and
privilege which it or any of them may have under any present or future law to
redeem the Premises or to have a continuance of this Lease after termination
of this Lease or of Lessee’s right of occupancy or possession
pursuant to any court order or any provision hereof, and (ii) the benefits of
any present or future law which exempts property from liability for debt or for
distress for rent.
28. INDEMNIFICATION. (a) Lessor
shall not in any event whatsoever be liable for any injury or damages to any
person happening on or about the Premises, or for any injury or damage to the
Premises, or to any property of Lessee or to any property of any other person,
firm, association, or corporation on or about the Premises, unless the direct
result of Lessor’s gross negligence or willful misconduct. Lessee
shall defend, indemnify and hold Lessor, its affiliates, officers, directors,
members, partners, shareholders, employees and agents (collectively,
Indemnitees”)harmless from and against any and all losses, liabilities, claims,
demands, suits, actions, judgments, fines or payments, environmental or
otherwise, for, or in connection with, any default by Lessee under the terms of
this Lease, any accident, injury or damage whatsoever caused to any person or
property arising, directly or indirectly, out of any business conducted at or
with respect to the Premises or on any of the sidewalks adjoining the same, or
arising, directly or indirectly, from any violation of any law, agency ruling or
regulation, or from any act or omission of Lessee or any sublessee and their
respective licensees, servants, agents, customers, employees, invitees or
contractors, and from and against all costs, expenses and liabilities incurred
in connection with any such claim or proceeding brought thereon, including,
without limitation, (i) any claim against Lessor arising as a result of a
failure of Lessee, Purchaser or Guarantor to comply with its obligations under
the PSA Documents (which shall include, but not be limited to, the “Purchaser
indemnification of Seller for IP Claims” (as set forth in Section 1.5 of the
PSA), the “Purchaser’s PMPA Indemnification” (as set forth in Section 4.4 of the
PSA) and the “Purchaser’s Indemnification” (as set forth in Section 7.8 of the
PSA )), and (ii) any
liability, claims, demands, or causes of action whatsoever asserted by any one
or more of the dealers who operate the service station businesses at the
Premises, whether based in contract, tort, statutory right, or equitable
principles. Lessee shall be responsible to pay all reasonable attorneys’ fees,
costs and disbursements incurred by Lessor as a result of Lessee’s default
hereunder and this shall include all costs, including, without limitation,
reasonable attorneys’ fees, costs and disbursements incurred by Lessor in
collecting such amounts from Lessee and in enforcing the indemnification set
forth herein. Lessor shall have no responsibility whatsoever for any
damage, vandalism or theft of Lessee's property. The obligations of
Lessee under this Section shall survive the expiration or termination of this
Lease. Notwithstanding anything herein to the contrary, in no event
shall Lessee’s indemnification obligations include payments of principal and
interest due from Lessor to its lender under the terms of any loan
documents. In no event shall Lessee be liable to Lessor for punitive
or special damages or for any amounts due and payable under Lessor’s financing
documents with its lender.
(b) In case any action or
proceeding is brought against any Indemnitee by reason of any such claim, (i)
such Indemnitee will notify Lessee to resist or defend such action or
proceeding, and such Indemnitee will cooperate and assist in the defense of such
action or proceeding if reasonably requested to do so by Lessee and (ii) Lessee
may, except during the continuance of an Event of Default and provided it
acknowledges in writing that the claim is fully indemnifiable by it under this
Lease, retain counsel of its choice to defend such action; provided, however,
that Indemnitee may employ counsel of its own choice to monitor the defense of
any such action, the cost of which counsel shall be paid by Lessee, except with
respect to any claim arising as a result of a failure of Lessee, Purchaser or
Guarantor to comply with the Purchaser’s PMPA Indemnification (as set forth in
Section 4.4 of the PSA) and/or any liability, claims, demands, or causes of
action whatsoever asserted by any one or more of the dealers who operate the
service station businesses at the Premises, in which event Indemnitee shall not
be permitted to engage separate counsel to monitor the defense of such action at
Lessee’s expense, but may engage counsel of its choice at its own
expense. Notwithstanding the foregoing, Indemnitee shall have the
right, but not the obligation, to assume control of the defense and settlement
of any claim for which indemnity is required hereunder if (i) the Indemnitee
reasonably believes, after consultation with counsel, that the use of counsel
chosen by the Lessee to represent Indemnitee would present such counsel with an
actual or potential conflict of interest, (ii) Lessee shall not have engaged
counsel to have charge of the defense of such action within a reasonable period
after the date of notice of the claim for which indemnification is sought is
given to Lessee, or (iii) the Indemnitee shall have reasonably concluded that
there may be material defenses available to it or them which are different from
or additional to those available to the Lessee or otherwise being pursued on
behalf of the Indemnitee after Lessor has exercised reasonable commercial
efforts to cause Lessee’s counsel to raise a reasonable defense and Lessee’s
counsel has not done so. If any event described in clauses (i)
through (iii) shall occur, then the Lessee shall not have the right to direct
the defense of the indemnifiable action, and the Indemnitee shall be entitled to
direct the defense of such action with counsel of its own choice, and the
reasonable fees and expenses of the Indemnitee shall be borne by the Lessee,
provided that such counsel shall be reasonably acceptable to the
Lessee. In addition to the foregoing, If there is an Event of Default
or if Lessee fails to acknowledge in writing that a claim for indemnification
asserted by an Indemnitee is not fully indemnifiable by it under this Lease,
then the Indemnitee will have the right to select counsel, and the fees and
expenses of such counsel shall be paid by Lessee.
33
29. LIMITATION
OF LESSOR’S LIABILITY; LESSOR’S RIGHT OF
ASSIGNMENT.
(a) Lessee agrees that the
liability of the Lessor under this Lease and all matters pertaining to or
arising out of the tenancy and the use and occupancy of the Premises, shall be
limited to Lessor's interest in the Premises, and in no event shall Lessee make
any claim against or seek to impose any personal liability upon any individual,
corporate officer, general or limited partner of any partnership, or principal
of any firm or corporation that may now or hereafter become the
Lessor. Notwithstanding anything contained in this Lease, Lessee and
its successors and assigns agree that Lessee shall look solely to the estate and
property of Lessor in the real property comprising the Premises for the
collection of any claims, judgments (or other judicial process) or liabilities
requiring the payment of money by Lessor or its successors or grantees in the
event of any claim against Lessor arising out of this Lease or any of the terms,
covenants and conditions of this Lease to be observed or performed by Lessor,
and no other assets of Lessor or Lessor's successors or Lessor's parent or
affiliates shall be subject to levy, execution or other procedures for the
satisfaction of Lessee's claims. Lessor agrees that the
liability of the Lessee under this Lease and all matters pertaining to or
arising out of the tenancy and the use and occupancy of the Premises, are
personal to Lessee and the Guarantor (to the extent covered by the Guaranty),
and other than the Guarantor, in no event shall Lessor make any claim against or
seek to impose any personal liability upon any individual, corporate officer,
general or limited partner of any partnership, or principal of any firm or
corporation, member or manager that may now or hereafter become a part of
Lessee
(b) Lessor
shall have no liability for consequential damages resulting from, nor may Lessee
terminate this Lease as a result of, Lessor’s failure to give consent, approval
or instruction reserved to Lessor. Lessee’s sole remedies in any such
event shall be an action for injunctive relief or, in the alternative, an action
to recover actual compensatory damages in the event that Lessor unreasonably
withholds its consent or approval in cases where such Lessor is not permitted to
withhold its approval in its sole and absolute discretion.
34
(c) Lessor shall be free at
all times, without need of consent or approval by Lessee, to assign its interest
in this Lease and/or to convey its fee or leasehold interest in the
Premises. Lessor shall give notice to Lessee of any such
conveyance. Each conveyance by Lessor of Lessor’s interest in the
Lease or the Premises prior to the expiration or termination of this Lease shall
be subject to this Lease and shall relieve the grantor of any further
obligations or liability as Lessor, and Lessee shall look solely to Lessor’s
successor in interest for all obligations of Lessor accruing from and after the
date of the conveyance. Lessee hereby expressly grants Lessor the
right to sever this Lease if Lessor does in fact sever this Lease, then and in
such event, this Lease with Lessee shall be and remain a unitary lease with
respect to the Sites then demised pursuant to the
Lease.
30. BROKER. Each
of Lessor and Lessee warrant and represent to the other that it has dealt with
no broker, real estate salesman, or person acting as broker or finder, in
connection with this Lease. Each of Lessor and Lessee shall defend,
indemnify and hold harmless the other party of and from any and all claims,
liabilities and/or damages which are based upon a claim by any broker, person,
firm, or corporation for brokerage commission and/or other compensation by
reason of having dealt with Lessee. The provisions hereof shall
survive the expiration or termination of this Lease.
31. NOTICES;
PAYMENTS. (a) All notices, demands, requests,
consents, approvals, offers, statements and other instruments or communications
required or permitted to be given pursuant to the provisions of this Lease shall
be in writing and shall be deemed to have been given and received for all
purposes when delivered in person or by Federal Express or other reliable
24-hour delivery service or five (5) Business Days after being deposited in the
United States mail, by registered or certified mail, return receipt requested,
postage prepaid, addressed to the other party at the address set forth below or
when delivery is refused, and such notices shall be addressed as
follows:
To
Landlord:
|
GTY
MD Leasing, Inc.
|
|
000
Xxxxxxx Xxxxxxxx, Xxxxx 000
|
||
Xxxxxxx,
Xxx Xxxx 00000
|
||
Phone
No.: (000) 000-0000
|
||
Fax
No.: (000) 000-0000
|
||
Attn:
Xxxxx X. Xxxx,
|
||
Executive
Vice President
|
35
|
With
a copy to:
|
GTY MD Leasing, Inc. |
000
Xxxxxxx Xxxxxxxx, Xxxxx 000
|
||
|
Xxxxxxx, Xxx Xxxx 00000 | |
|
Phone No.: (000) 000-0000 | |
|
Fax No.: (000) 000-0000 | |
|
Attn: Xxxxxx Xxxxxx, Esq. | |
|
General Counsel | |
|
Xxxxxxxx & Xxxxxxxx LLP | |
|
000 Xxxxx Xxxxxx, 00xx Xxxxx | |
|
Xxx Xxxx, Xxx Xxxx 00000 | |
|
Phone No.: (000) 000-0000 | |
|
Fax No.: (000) 000-0000 | |
|
Attn: Xxxxx X. Xxxxxxxx, Esq. |
To
Tenant:
|
White
Oak Petroleum LLC
|
|
c/o
Capitol Petroleum Group
|
||
0000-X
Xxxxxxxxxx Xxxxx
|
||
Xxxxxxxxxxx
XX 00000
|
||
Phone
No.: 000-000-0000
|
||
|
Fax No.: (000) 000-0000 | |
|
Attn: Xxx Xxxx |
With
a copy to:
|
Pillsbury
Xxxxxxxx Xxxx Xxxxxxx LLP
|
|
0000
X Xxxxxx, X.X.
|
||
Xxxxxxxxxx,
XX 00000
|
||
Phone
No.: (000) 000-0000
|
||
|
Fax No.: (000) 000-0000 | |
|
Attn: Xxxxxxxx Xxxxxx, Esq. |
For the purposes of this subsection,
any party may substitute another address stated above (or substituted by a
previous notice) for its address by giving fifteen (15) days’ notice of the new
address to the other party, in the manner provided above.
(b) Rent
and all other payments due to Lessor under this Lease shall be paid in lawful
money of the United States of America, without offset or deduction, to the name
and at the address first given above for Lessor or to such other persons or
parties or at such other places as Lessor, from time to time, may designate in a
written notice to Lessee.
32. NO
WAIVER. (a) Lessor's right to require strict
performance shall not be affected by any previous waiver or course of
dealings.
(b) The
receipt and acceptance of rent by Lessor with knowledge of a default by Lessee
under this Lease shall not be deemed a waiver of such default and Lessor retains
all of its rights under this Lease resulting from such default.
36
(c) No
payment by Lessee or receipt by Lessor of a lesser amount than the monthly rent
stipulated herein shall be deemed to be other than on account of the earliest
stipulated rent or item of additional rent outstanding, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent or additional rent be deemed an accord and satisfaction and
Lessor may accept any such check or payment without prejudice to Lessor’s rights
to recover the balance due or to pursue any other remedy.
33. ESTOPPEL
CERTIFICATES; FINANCIAL STATEMENTS; REPORTS. (a) At any time and from time
to time, within ten (10) days after request by Lessor, by written instrument,
Lessee shall certify to Lessor, any mortgage, assignee of a mortgagee, any
purchaser, or any other person specified by Lessor, to the effect that (i)
Lessee is in possession of the Premises; (ii) this Lease is unmodified and in
full force and effect (or if there has been modification, that the same is in
full force and effect as modified and setting forth such modification); (iii)
whether or not there are then existing set-off or defenses against the
enforcement of any duty or obligation of Lessee (and if so, specifying the
same); and (iv) the dates, if any, to which any rent or other charges have been
paid in advance.
(b) At
any time and from time to time, within ten (10) days after request by Lessee, by
written instrument, Lessor shall certify to Lessee, any mortgage, assignee of a
mortgagee, or any other person specified by Lessee, to the effect that to
Lessor’s knowledge, (i) Lessee is in possession of the Premises; (ii) this Lease
is unmodified and in full force and effect (or if there has been modification,
that the same is in full force and effect as modified and setting forth such
modification); (iii) whether or not there exists a default or an Event of
Default by Lessee hereunder, and if so, specifying the nature of such default or
Event of Default; and (iv) the dates, if any, to which any rent or other charges
have been paid.
(c) Lessee shall keep
adequate records and books of account with respect to the finances and business
of Lessee generally and with respect to the Premises, in accordance with
generally accepted accounting principles consistently applied (“GAAP”) (with the
exception that quarterly statements do not need to include footnotes), and shall
permit Lessor by its agents, accountants and attorneys, upon reasonable notice
to Lessee, to visit and inspect the Premises and examine (and make copies of)
the records and books of account and to discuss the finances and business with
the officers of Lessee, if any, at such reasonable times as may be requested by
Lessor. Upon the request Lessor (either telephonically or in
writing), Lessee shall provide the requesting party with copies of any
information to which such party would be entitled in the course of a personal
visit and any such information shall be kept confidential by
Lessor.
(d) Lessee shall deliver to
Lessor within one hundred twenty (120) days of the close of each fiscal year,
annual audited consolidated financial statements of Lessee, or, if Lessee is a
wholly-owned subsidiary of a parent company, annual audited consolidated
financial statements of such parent company, prepared by independent certified
public accountants reasonably acceptable to the Lessor; provided, however, that
within sixty (60) days after the close of each fiscal year, Lessee shall deliver
unaudited consolidated financial statements of Lessee, or, if Lessee is a
wholly-owned subsidiary of a parent company, annual unaudited consolidated
financial statements of such parent company, certified as true, correct and
complete by Lessee’s chief financial officer. Lessee shall also
furnish to Lessor within thirty (30) days after the end of each of the three
remaining quarters unaudited financial statements and all other quarterly
reports of Lessee or its parent company, as applicable, certified by such
reporting party’s chief financial officer, and all filings, if any, of Form
10-K, Form 10-Q and other required filings with the Securities and Exchange
Commission pursuant to the provisions of the Securities Exchange Act of 1934, as
amended, or any other law. Lessee acknowledges that Lessor is, or its
affiliates are, subject to stock exchange requirements and listing rules and
regulations promulgated under the Securities Exchange Act of 1934, and
interpretations thereof by relevant enforcement authorities, and agrees that if
under said rules and regulations or listing requirements, Lessor is required to
provide audited or unaudited financial information applicable to Lessee or
Guarantor, or otherwise relating to this Lease, which is greater than that
contemplated above, or is required sooner than contemplated above, Lessee shall
provide such information in the form necessary for Lessor to comply with same,
upon notice by Lessor to Lessee, with identification of the
applicable rule ,regulation or listing requirement.
37
(e) All financial statements
delivered to Lessor pursuant to this Section 33 shall be prepared in accordance
with GAAP. All annual financial statements shall be accompanied (i)
by an opinion of said accounting firm stating that (A) there are no
qualifications as to the scope of the audit and (B) the audit was performed in
accordance with GAAP and (ii) by the affidavit of the president, chief financial
officer or vice president of finance or a duly appointed officer of Lessee with
knowledge of Lessee’s financial affairs, of the reporting party dated within
five (5) days of the delivery of such statement, stating that (A) the affiant
knows of no Event of Default, or event which, upon notice or the passage of time
or both, would become an Event of Default which has occurred and is continuing
hereunder or, if any such event has occurred and is continuing, specifying the
nature and period of existence thereof and what action Lessee or any Guarantor,
as the case may be, has taken or proposes to take with respect thereto, (B)
except as otherwise specified in such affidavit, that Lessee has fulfilled all
of its obligations under this Lease which are required to be fulfilled on or
prior to the date of such affidavit and (C) Lessee shall promptly deliver to
Lessor copies of any additional reporting information provided to Lessee’s
lenders. If Lessee is, as of the date hereof or becomes, after the
date hereof, a party to a mortgage, deed of trust, credit agreement or any other
agreement that (a) encumbers the Premises and (b) secures Lessee’s obligation to
repay a loan, as the same may be amended, supplemented or modified, and the
terms of such agreement with respect to financial reporting are more favorable
to the lender under such agreement than the terms of this Section 33 are to
Lessor, Lessee agrees to provide written notice to Lessor of the terms of such
agreement within ten (10) days after entering into such agreement, and to
execute an amendment to this Lease that conforms the Lease to the financial
reporting terms of such agreement within thirty (30) days after entering into
such agreement.
(f) Within forty-five (45)
days after the end of each calendar quarter, Lessee shall deliver to Lessor the
motor fuel volume, rental income and merchandise sales figures for the calendar
quarter for each Site comprising the Premises, and, if available, Site level
profit and loss statements .
(g) All reports, statements,
budgets and other documents required to be submitted to Seller by Purchaser
pursuant to the terms of the PSA which relate to any of the Properties shall be
sent to Lessor by Lessee at the same time sent to Seller in the same manner of
delivery.
34. BINDING
EFFECT. This Lease shall be binding upon and inure to the
benefit of the parties hereto, their respective legal representatives, heirs,
successors and assigns. This Lease may be executed simultaneously in
any number of counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same
instrument. This Lease may be executed by facsimile signature, which
signature shall have the same legal effect as an original.
35. NO
MODIFICATION. No waiver, modification, change or alteration of
the provisions of this Lease, or any of the rights or remedies of either of the
parties hereto shall be valid, unless such waiver, modification, change or
alteration is in writing, and signed by the party against whom enforcement is
sought.
38
36. GOVERNING
LAW. Each of Lessor and Lessee hereby agree that the State of
Maryland has a substantial relationship to the parties and to the underlying
transaction embodied hereby, and in all respects (including, without limiting
the generality of the foregoing, matters of construction, validity and
performance) this Lease and the obligations arising hereunder shall be governed
by, and construed in accordance with, the laws of the State of Maryland
applicable to contracts made and performed therein and all applicable law of the
United States of America; except that, at all times, the provisions for the
creation of the leasehold estate, enforcement of Lessor’s rights and remedies
with respect to right of re-entry and repossession, surrender, delivery,
ejectment, dispossession, eviction or other in-rem proceeding or action
regarding any of the Sites shall be governed by and construed according to the
Laws of the state in which such Site is located, it being understood that, to
the fullest extent permitted by law of such State, the law of the State of
Maryland shall govern the validity and the enforceability of the Lease, and the
obligations arising hereunder. To the fullest extent permitted by
law, Lessee hereby unconditionally and irrevocably waives any claim to assert
that the law of any other jurisdiction governs this Lease. Any legal
suit, action or proceeding against Lessee arising out of or relating to this
Lease may be instituted in any federal or state court sitting in the County of
Prince Xxxxxx , State of Maryland , and Lessee waives any objection which it may
now or hereafter have to the laying of venue of any such suit, action or
proceeding in such County and State, and Lessee hereby expressly and irrevocably
submits to the jurisdiction of any such court in any suit, action or
proceeding. Notwithstanding the foregoing, nothing herein shall
prevent or prohibit Lessor from instituting any suit, action or proceeding in
any other proper venue or jurisdiction in which the Premises is located or where
service of process can be effectuated.
37. PARTIAL
INVALIDITY. In the event any provision of this Lease is
declared illegal, invalid, or unenforceable or contrary to law, it shall not
affect any other part.
38. ENTIRE
LEASE. The parties have set forth in this Lease their entire
understanding, there is no other agreement or understanding between the parties,
except as expressly set forth herein; provided, however, Lessor and Lessee
hereby acknowledge that this Lease is being entered into, in connection with and
pursuant to, that certain Asset Purchase Agreement.
39. LESSOR/LESSEE. The
parties agree that this Lease shall not be deemed a joint venture but strictly a
“landlord/tenant” “Lessor/Lessee” relationship.
40. AUTHORITY. Lessee
has fully read this Lease before signing same and is in full agreement with its
terms. The person signing this Lease on behalf of Lessee certifies
that he/she is authorized by Lessee to execute this Lease on behalf of Lessee
and to bind Lessee to its terms.
41. NO
RECORDING; MEMORANDUM OF LEASE. Lessee shall not record this
Lease or any notice or memorandum thereof. Upon the request of either
party, the parties shall execute and deliver a memorandum of Lease with respect
to the terms and conditions of this Lease, at the cost and expense of the party
requesting the memorandum, including, without limitation, any recording charges
due and payable in connection therewith. In addition, if the parties
execute and deliver a memorandum of Lease, then the parties shall also execute
and deliver a termination of the memorandum of Lease which termination shall be
delivered to Lessor and held by Lessor in accordance with the provisions of this
Section 41. Lessor is hereby authorized to file such termination of
memorandum of Lease upon the expiration or sooner termination of this
Lease.
39
42. OFAC
CERTIFICATION. Each of Lessor and Lessee hereby certify that:
(i) it is not acting, directly or indirectly, for or on behalf of any person,
group, entity, or nation named by any Executive Order or the United States
Treasury Department as a terrorist, Specially Designated National and Blocked
Person, or other banned or blocked person, entity, nation, or transaction
pursuant to any law, order, rule, or regulation that is enforced or administered
by the Office of Foreign Assets Control; and (ii) it is not engaged in this
transaction, directly or indirectly on behalf of, or instigating or facilitating
this transaction, directly or indirectly on behalf of, any such person, group,
entity, or nation. Each of Lessor and Lessee hereby agree to defend,
indemnify, and hold harmless the other party from and against any and all
claims, damages, losses, risks, liabilities, and expenses (including attorneys’
fees and costs) arising from or related to any breach of the foregoing
certification.
43. OPTION TO
PURCHASE. (a) Lessee shall have the
right to purchase the Premises (which shall be construed as all but not less
than all of the Sites demised pursuant to the terms of this Lease) from Lessor
upon the expiration of the Initial Term, as the same may be extended for the
first Renewal Term and the second Renewal Term. In order to exercise
the purchase option, Lessee shall give Lessor irrevocable written notice of its
election to exercise the purchase option not less than eighteen (18) months
prior to the expiration of the Initial Term, or eighteen (18) months prior to
the expiration of the first Renewal Term or eighteen (18) months prior to the
expiration the expiration of the second Renewal Term. Time shall be of the
essence as to all notice periods in this Section 43. The purchase
option set forth in this Section 43 shall be in effect during the Initial Term,
the first Renewal Term (if so exercised by Lessee) and the second Renewal Term
(if so exercised by Lessee). Lessee hereby acknowledges and agrees
that if it elects to extend the Term of this Lease for the third Renewal Term
the purchase option set forth in this Section 43 shall not apply.
(b) The purchase price for the
Premises during the Initial Term of the Lease shall be an amount equal to the
greater of: (i) the fair market value for the Premises or (ii) the sum of the
Acquisition Costs (as hereinafter defined) for all of the Sites comprising the
Premises. The purchase price for the Premises during the first
Renewal Term of the Lease shall be an amount equal to the greater of: (1) the
fair market value for the Premises or (2) one hundred ten percent (110%) of the
sum of the Acquisition Costs for all of the Sites comprising the
Premises. The purchase price for the Premises during the second
Renewal Term of the Lease shall be an amount equal to the greater of: (x) the
fair market value for the Premises or (y) one hundred fifty percent (150%) of
the sum of the Acquisition Costs for all of the Sites comprising the
Premises. The fair market value of the Premises shall be based upon
the highest and best use of the Premises, taking into consideration all relevant
factors and determined as if the Premises is unencumbered, and free and clear of
the existence of this Lease. For the purpose of this Lease, the term
“Acquisition Cost” shall mean as to each Site the Lessor’s allocated transaction
cost attributable to such Site as set forth on Schedule “A” attached hereto and
by this reference made a part hereof.
(c) In order to determine the
fair market value of the Premises for purposes of subsection (b) above, the
following shall apply:
(i)Not later than thirty (30) days after
Lessor’s receipt of Lessee’s notice of its intention to Purchase the Premises,
Lessor and Lessee shall each provide the other with the name of an independent
real estate appraiser (“Lessor’s Consultant”
and "Lessee's
Consultant", as the case may be), to act as Lessor’s representative and
Lessee's representative in order to determine the fair market value of the
Premises. Not later than thirty (30) days after the designation of
the Lessor’s Consultant and the Lessee’s Consultant (each such consultant shall
comply with the requirements of subsection (iii) below), each such consultant
shall determine the fair market value of the Premises and shall circulate such
determination to the other party. If the fair market value
determinations of the two consultants differ by more than ten percent (10%),
then Lessee's Consultant and Lessor's Consultant shall meet (in person or by
telephone) to mutually agree upon the determination of the fair market value of
the Premises.
40
(ii)If Lessor's Consultant and Lessee's
Consultant shall be unable to reach such determination within thirty (30) days,
both of the Consultants shall each designate their final fair market values, if
they have changed from the initial determination, and shall jointly select a
third independent real estate appraiser ("Third Consultant")
whose fee shall be borne by Lessee. In the event that Lessor's
Consultant and Lessee's Consultant shall be unable to jointly agree on the
designation of the Third Consultant within five days after they are requested to
do so by either party, then the parties agree to allow the American Arbitration
Association or any successor organization to designate the Third Consultant in
accordance with the rules, regulations and/or procedures of the American
Arbitration Association or any successor organization then in
effect.
(iii)The Third Consultant shall conduct such
hearings and investigations as they may deem appropriate and shall, within 30
days after the date of designation of the Third Consultant, prepare an
independent determination of the value of the Premises. The final,
fair market valuation of the Premises shall be the average of the two valuations
of the Lessor’s Consultant, the Lessee’s Consultant and the Third Consultant
which are closest. Once determined, the fair market value
determination shall be conclusive and binding upon Lessor and
Lessee. Lessee shall pay all counsel fees and expenses, if any, in
connection with any arbitration under this subsection, including the expenses
and fees of any Consultant selected by it in accordance with the provisions
hereof. The Lessor’s Consultant, the Lessee’s Consultant, the Third
Consultant and any other consultant appointed pursuant to this subsection shall
be an independent real estate appraiser with at least ten years' experience in
leasing and valuation of properties which are similar in character to the
Premises, a member of the American Institute of Appraisers of the National
Association of Real Estate Boards, a member of the Society of Real Estate
Appraisers, and shall not have any personal or business relationship with either
Lessor or Lessee which might be, or have the appearance of, a conflict of
interest (herein, a “Qualified
Appraiser”). The Consultants shall not have the power to add
to, modify or change any of the provisions of this Lease.
(d) Once the purchase price for
the Premises has been determined, the parties shall in good faith determine a
closing date for the sale and purchase of the Premises which date shall not be
later than five (5) days after the expiration of the Initial Term or Renewal
Term during which the option to purchase was exercised. At the
closing and upon payment of the purchase price, Lessor shall convey title to the
Premises to Lessee, “as-is” in its then condition, subject to all encumbrances,
easements and covenants of record; provided, however, that except for an
Approved Easement and/or any other matter consented to by Lessee in writing,
Lessor shall be obligated to convey the Premises to Lessee free and clear of any
mortgage or other security interest created by Lessor or any encumbrance created
by Lessor during the Term of this Lease and not consented to by the
Lessee. At the closing, Lessor and Lessee shall equitably adjust the
real estate taxes payable with respect to the Premises. The parties
shall reasonably cooperate with each other in order to effect a like-kind
exchange in accordance with applicable Internal Revenue Code
requirements.
41
44. PROPERTY
SUBSTITUTION.
(a) From and after that date
which is the fourth (4th)
anniversary of the Commencement Date, in the event Lessee determines that one or
more of the Sites is not economically feasible, Lessee shall be permitted to
request that such Site(s) be severed from the Premises demised pursuant to the
terms of this Lease and another property or properties be substituted in its or
their place. Lessee hereby acknowledges and agrees that it may only
request that one Site per year be substituted and that an aggregate of not more
than ten (10) Sites be substituted over the Term of this Lease, as the Term may
be extended by one or more of the Renewal Terms. In order to request
any such substitution, Lessee shall submit an irrevocable written request to
Lessor, which request shall be accompanied with sufficient reasonable financial
information demonstrating that the Site in question is not economically
feasible, which information shall include, with respect to such Site, current
audited financial statements prepared by an independent certified public
accounting firm, monthly profit and loss amounts for the twenty-four (24) month
period prior to the date of the request and such other financial and business
information as shall be requested by Lessor. In addition, Lessee
shall identify a proposed property to be substituted for the Site sought to be
severed from this Lease. Lessee shall provide Lessor with financial
information regarding the proposed property, a current appraisal, together with
such additional information as Lessor shall reasonably request in order for it
to be provided with a full and complete understanding of the financial condition
of the operations, physical condition and environmental condition of such
proposed substitute property.
(b) Upon receipt of Lessee’s
request as set forth in subsection 44(a) above, Lessor may elect one of the
following options: (i) to sever the Site that is not economically feasible from
the Premises demised pursuant to this Lease and accept the proposed substituted
property in its place without any adjustment in the Fixed Annual Rent, or (ii)
to sever the Site that is not economically feasible from the Premises demised
pursuant to this Lease and not accept the
proposed substitute property in its place and to reduce the Fixed Annual Rent by
the Adjustment Amount as set forth on Schedule “A” attached hereto, or (iii)
request that Lessee purchase such Site from Lessor at the greater of (A) the
then fair market value of the Site based upon the highest and best use thereof,
taking into consideration all relevant factors and determined as if the Site is
unencumbered, and free and clear of the existence of this Lease, or (B) the
Acquisition Cost applicable to such Site. If Lessor elects to sever
the Site as provided herein, then Lessor and Lessee shall promptly enter into an
amendment of this Lease in order to document such agreement, at the sole cost
and expense of Lessee. For purposes of clause (iii) above, the fair
market value of such Site shall be determined in accordance with the provisions
of Section 43(c) of this Lease. Lessor agrees to use commercially
reasonable efforts to obtain the release of any such Sites from any mortgage
encumbering such Sites as may be required by Lessor’s lender and consent from
Lessor’s lender for such substitution.
42
45. CONFIDENTIALITY. Subject to the
rights of either
party to request that a memorandum of this Lease be recorded as set forth in
this Lease, each of Lessor and Lessee shall maintain as confidential (i) any and
all information, data and documents obtained about the other party
(“Information”) prior to and following the execution of this Lease (including
without limitation, any financial or operating information of, or related to,
the Lessor), and (ii) the terms and conditions of this Lease (as originally
circulated or as negotiated) and all other documents related to the execution of
this Lease. Neither party shall disclose any such Information to any
third party except as required by any applicable law, court order, subpoena or
legal or regulatory requirement. Notwithstanding the foregoing,
Lessee hereby expressly acknowledges and agrees that Lessor shall be permitted
to disclose any and all information required by applicable law, including,
without limitation, the requirements of the securities exchange commission rules
and regulations. Notwithstanding the foregoing, Lessee shall be
permitted to disclose information related to this Lease described in item (ii)
above: (x) in accordance with Lessee’s general public disclosure policy; provided Lessee has
obtained Lessor’s prior consent to the contents of any such disclosure, and (y)
to Lessee’s attorneys, accountants, advisors, consultants, affiliates, lenders
and investors (“Interested Persons”) in accordance with usual and customary
business practices; provided such
individuals or entities agree, at the time of such disclosure by Tenant, to be
bound by the terms and conditions of this Section 45. Neither Lessor nor Lessee
shall make copies of any Information except for use exclusively by Lessor or
Lessee, or such party’s attorneys, accountants, advisors, consultants,
affiliates, lenders and investors as needed in accordance with usual and
customary business practices. All copies of such Information will be
returned to the party that provided such Information or destroyed after the use
of such Information is no longer needed, except to the extent such destruction
is prohibited by law, rule or regulation, or, with respect to Lessor, required
to be retained pursuant to Lessor’s document retention
policies. Lessee hereby consents to the disclosure by Lessor of the
existence, and the terms and conditions, of this Lease, in accordance with
Lessor’s general disclosure policy; including, without limitation, disclosures
to Lessor’s attorneys, accountants, advisors, consultants, affiliates, lenders
and investors. Lessee further consents to the disclosure by Lessor
for general marketing purposes of the existence of this Lease, the purchase
price of the Premises, Lessee’s use of the proceeds of the sale of the Premises
and the nature and location of the Property, and to the use by Lessor of
Lessee’s name, tradename or logo and the use of the name, tradename or logo of
any sponsor or any other entity having an ownership or management interest in
Lessee for the limited purpose of a press release or other announcement of this
transaction. This provision shall survive beyond the termination of
this Lease. Lessee shall not record this Lease or any memorandum
thereof in the land records of any county or jurisdiction or with any
governmental authority, without the prior written consent and approval of the
Lessor.
46. TAX
TREATMENT; REPORTING. Lessor and Lessee
each acknowledge that each shall treat this transaction as a true lease for
state law purposes and shall report this transaction as a lease for federal
income tax purposes. For federal income tax purposes each party shall
report this Lease as a true lease with Lessor as the owner of the Premises and
Lessee as the lessee of such Premises including: (i) treating Lessor
as the owner of the improvements and equipment eligible to claim depreciation
deductions under Section 167 or 168 of the Internal Revenue Code of 1986 (the
“Code”) with respect to the improvements and equipment (excluding UST systems
and multi product dispensers, which belong to Tenant as hereinabove described in
this Lease, (ii) Lessee reporting its Rent payments as rent expense under
Sections 162 and Section 467 of the Code, as applicable, and (iii) Lessor
reporting the Rent payments as rental income. Notwithstanding the
foregoing, nothing contained herein shall (a) require Lessor or Lessee to take
any action that would be inconsistent with the requirements of GAAP or violate
any state or federal law, or (b) be deemed to constitute a guaranty, warranty or
representation by either Lessor or Lessee as to the actual treatment of this
transaction for state or federal tax purposes or for purposes of accounting or
financial reporting, including but not limited to the determination as to
whether this Lease shall qualify for sale-leaseback accounting treatment or
whether this Lease shall be properly classified as an operating lease or finance
lease in accordance with GAAP.
47. CORRECTIONS. Lessor and Lessee
shall execute, deliver, record and furnish such documents as may be necessary to
correct any errors of a typographical nature or inconsistencies which may be
contained in this Lease, or in any memorandum thereof, whether such memorandum
be recorded or unrecorded.
43
Please note that the
signature page that is being signed by Lessee will be inserted in execution
document.
44
SCHEDULE
A
(the
Premises)
See
Attached
Ref#
|
SS#
|
Property
address
|
City
|
County
|
State
|
Total
Purchase
Price
Allocation
|
Adjustment
Amount
|
1
|
20340
|
0000
Xxxxxx Xx
|
XXXXXX
|
Xxxxxx
|
XX
|
$2,730,827
|
$314,044.90
|
2
|
20395
|
0000
Xxxxxxxxx Xx
|
XXXXXXXX
XXXXX
|
PG
|
MD
|
1,510,751
|
173,736.32
|
3
|
22530
|
00000
Xxxxxxxxx Xxx
|
XXXXXXXXXX
|
PG
|
MD
|
1,193,985
|
137,308.29
|
4
|
23076
|
0000
Xxxxx Xx
|
XXXXXXXXXXX
|
PG
|
MD
|
798,430
|
91,619.49
|
5
|
23607
|
000
Xxxxxxxxxx Xxxx
|
LAUREL
|
PG
|
MD
|
3,040,960
|
349,710.39
|
6 | 24617 | 00000 Xxxxxx Xxxx Xxx | XXXX XXXXXXXXXX | PG | MD |
1,047,645
|
120,502.23
|
7
|
24640
|
0000
Xxxxxxxx Xxxx
|
XXXXXXXXXXX
|
PG
|
MD
|
1,495,421
|
171,973.42
|
8
|
24742
|
3384
Fort Xxxxx Xx
|
XXXXXX
|
Xxxx
Xxxxxxx
|
MD
|
1,779,501
|
204,642.57
|
9
|
24980
|
0000
Xxxxxx Xxxxxx Xx
|
XXXXXXXXXXX
|
PG
|
MD
|
1,766,399
|
203,135.86
|
10
|
25068
|
0000
Xxxxxxxxx Xxx
|
XXXXXXX
XXXX
|
PG
|
MD
|
1,005,446
|
115,626.29
|
11
|
25343
|
3399
Branch Ave
|
TFMPLE
HILLS
|
PG
|
MD
|
573,744
|
55,980.59
|
12
|
25380
|
0000
Xxxxxxx Xxx
|
XXXX
XXXXXXXX
|
PG
|
MD
|
814,287
|
93,643.03
|
13
|
25365
|
0000
Xxxxxxxxx Xxx
|
XXXXXXX
XXXX
|
PG
|
MD
|
631,974
|
72,677.02
|
14
|
25395
|
0000
Xxxxxx Xxxxxx Xx
|
XXXXXX
|
PG
|
MD
|
1,156,308
|
132,975.39
|
15
|
25416
|
00000
Xxxxxx Xxxx Xx
|
XXXXXXXXXX
|
PG
|
MD
|
710,078
|
81,558.97
|
16
|
25417
|
0000
Xxxxxxxx Xx
|
XXXXXXXX
XXXXX
|
PG
|
MD
|
1,215,237
|
139,152.22
|
17
|
25493
|
0000
Xxxxxxxxx Xx
|
XXXXXXXXXXX
|
PG
|
MD
|
1,025,183
|
117,896.45
|
18
|
26547
|
00000
Xxxxxxxxx Xxx
|
XXXXXXXXXX
|
PG
|
MD
|
652,369
|
75,022.45
|
19
|
25623
|
0000
Xxxxxx Xxxxxx Xxxx Xx Xxx
|
XXXXXXXX
|
PG
|
MD
|
1,249,396
|
143,680.48
|
28
|
26045
|
00000
Xxxxxx Xxx Xxxxx
|
XXXXX
XXXXXXXX
|
PG
|
MD
|
1,158,123
|
133,184
12
|
21
|
26105
|
0000
Xxxxxxx Xxx
|
XXXXXXX
XXXXXXX
|
PG
|
MD
|
1,227,134
|
141,120.39
|
22
|
25150
|
0000 Xxxxxxxx
Xx
|
XXXXXXXX
|
PG
|
MD
|
1,329,124
|
|
152,849.22
|
|||||||
23
|
25189
|
00000 Xxxxxxx Xxx
|
XXXXX
|
XX
|
MD
|
2,635,275
|
303,516.60
|
24
|
26549
|
0000 Xxxxx Xxxxxx Xx | LAUREL | PG | MD |
1,516,109
|
174,352
57
|
25
|
26061
|
0000
Xx Xxxxxxxx Xx
|
XXXX
XXXX
|
PG
|
MD
|
1,502,042
|
172,734.60
|
26 | 00000 | Xxxxxx Xxxx Xx | XXXXXXXXXX | PG | MD |
1,826,309
|
210,025.59
|
27
|
27196
|
0000
Xxxxxxxx Xxxx
|
XXXXXXXX
XXXXXXX
|
PG
|
MD
|
826,655
|
95,065.35
|
28 | 27346 | 0000 Xxxxxxxxx Xx | XXXXXXXXX |
PG
|
MD
|
1,830,495
|
211,195.94
|
29 |
27505
|
0000 Xxxxxxxx Xxxx | XXXXXXXX XXXXXXX |
PG
|
MD
|
501,864
|
57,714.36
|
30
|
27575
|
0000 Xxxxxxxxx Xxxx | XXXXXXXXX | PG | MU |
1,218,263
|
140,100.30
|
31 | 27578 | 3000 Colehrceke Dr | SUITLAND |
PG
|
MD |
670,284
|
77,082.57
|
32 | 28044 | 0000 Xxxxxx Xxx | XXXXXXX |
XX
|
MD |
1.501,915
|
172,720.19
|
33
|
28242 | 0000 Xxxxxxxxx Xx | XXXXXXXXX | PG | MD |
1,745,958
|
203,785.21
|
34 |
28261
|
00000 Xxxxxxxx Xx | LAUREL | PG | MD |
1,979,739
|
227,569.96
|
35 |
28258
|
4747 Silver Xxxx Xx | SUITLAND | PG | MD |
823,550
|
95,859.41 |
36 | 28299 | 00000 Xxxxxxxxx Xxx | XXXXXX | PG | MD |
2,289,009
|
263,236.08
|
$49,000,000
|
$5,635,000.00
|
SCHEDULE
B
Fixed Annual
Rent
The term “Fixed Annual Rent” shall
mean, for the period from the Commencement Date through and including the day
immediately preceding the first (1st)
anniversary of the Commencement Date, the sum of Five Million Six Hundred Thirty
Five Thousand and 00/100 Dollars ($5,635,000), payable in equal monthly
installments of Four Hundred Sixty Nine Thousand Five Hundred Eighty Three
Dollars and Thirty-Three Cents ($469,583.33); and thereafter, the Fixed Annual
Rent shall be increased as provided herein.
Fixed Annual Rent, including Fixed
Annual Rent payable during any renewal period, is subject to increases every
year commencing on the first (1st)
anniversary of the Commencement Date, as set forth in Section 3 of this Lease
and shall be subject to adjustment in the event that Lessee loses possession of
a Site by reason of a condemnation or otherwise, as in this Lease expressly
provided.
The schedule as to Fixed Annual Rent
shall be revised to reflect the Fixed Annual Rent for the Sites then demised
pursuant to this Lease.
SCHEDULE
C
(Equipment)
All of the
equipment listed on the attached schedule, together with all coolers, cash
registers, safes, video surveillance systems, food preparation equipment,
gondolas, soda fountains, coffee equipment, refrigerators and freezers located
on the Premises on the Commencement Date, to the extent same was not owned by
Dealers on the day immediately prior to the Commencement Date, and even though
the same may not be listed with specificity on the attached
schedules.
Lessor and
Lessee shall conduct inspections of each Site comprising the Premises within
sixty (60) days after the Commencement Date and shall prepare an accurate and
complete list of the Equipment located at each of the Sites, and shall thereupon
promptly prepare the schedule to be attached hereto.
Equipment
Schedule
Property
#
|
|
Getty
Property #
|
|
Street
Address
|
|
City
|
|
State
|
Description | Quantity | Notes |
Motor
Fuel Consoles
|
||
Cash
Registers & Printer
|
||
Scanners
|
||
Electronic
Point of Sale Equip.
|
||
Stand-Up
Coolers
|
||
Freezers
|
||
Safes
|
||
Video
Surveillance Systems
|
||
UST
Monitoring Systems
|
||
Food
Preparation Equipment
|
||
Shelving
|
||
Soda
Fountains
|
||
Coffee
Equipment
|
||
Hot
Chocolate Mach.
|
||
Pizza
Oven
|
||
Pizza
Warmer/Display
|
||
ATM
|
||
Personal
Computer & Printer
|
||
Refrigerators
|
||
Air
Tower
|
||
Hot
Dog Steamer
|
||
Microwave
|
||
Deli
Case
|
||
Sandwich
Merchandiser
|
||
Car
Wash Equipment
|
||
Ice
Machine
|
||
[Please
provide inventory for each Site]
SCHEDULE
D
(the
Underground Storage Tanks)
Site
No.
|
Getty
Site No.
|
Street
Address
|
City
|
State
|
UST
Registration Number
|
Quantity/Capacity/Construction
|
Lessee
shall provide Lessor with the information set forth above with respect to each
underground storage tank located on all of the Sites comprising the Premises
within sixty (60) days after the Commencement Date and shall promptly prepare
the schedule as set forth above to be attached hereto.
Schedule
“E”
Existing
Dealer Leases
See
attached
Schedule
“F”
Lessee’s
Upgrade Work
See
Attached
Exhibit
“A”
Title
Insurance Policies
See
Attached
Exhibit
“B”
Form of
Guaranty
CONTINUING
GUARANTY
Dated
September __, 2009
In consideration of, and as a material
inducement for, the execution and delivery by GTY MD LEASING, INC., a Delaware
corporation ("Lessor")
of the Unitary Net Lease Agreement, dated of even date herewith (the "Lease"), between Lessor, as
lessor, and WHITE OAK PETROLEUM, LLC, a limited liability company formed under
the laws of the State of Delaware ("Lessee"), as lessee, for up
to 36 gas station and convenience store properties located in the State of
Maryland more particularly described in the Lease (collectively, the "Premises"), and for Ten
Dollars ($10.00) and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, XXXX X. XXXX also known as XXX XXXX,
an individual with an address at c/o Capitol Management Group, 0000-X Xxxxxxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Guarantor"), does hereby, on
behalf of itself and its successors and assigns, unconditionally and absolutely
guarantee to Lessor and its successors and assigns the full and timely payment,
performance and observance of, and compliance with, all of the terms, covenants,
conditions and other obligations contained in the Lease on Lessee's part to
perform, observe or comply with (such terms, covenants, conditions and other
obligations being hereinafter referred to as the “Guaranteed Obligations”),
without requiring any notice of non-payment, non-performance, non-observance, or
non-compliance, or proof, notice, or demand whereby to charge Guarantor
therefor, all of which Guarantor hereby expressly waives, and Guarantor hereby
further expressly covenants and agrees that neither the obligation nor the
liability of Guarantor hereunder shall in any wise be terminated or otherwise
affected, modified or impaired by reason of Lessor's assertion against Lessee
of, or Lessor's failure to assert against Lessee, any of the rights or remedies
available to Lessor pursuant to the Lease or allowed at law or in
equity.
1. The Guaranteed Obligations and
Guarantor's obligations and liabilities under this Guaranty shall include, but
not be limited to, the payment of all fixed rent and additional rent (as such
terms are defined in the Lease), and all other obligations and liabilities of
Lessee under the Lease, including (without limitation) Lessee’s obligations in
respect of environmental conditions at the Premises and all liabilities arising
therefrom (including, without limitation, all attorneys' fees and disbursements
and all litigation costs and expenses incurred or payable by Lessor or for which
Lessor may be responsible or liable, or caused by any such
default). In addition, Guarantor hereby covenants and agrees to pay
within five (5) days after Lessor's written demand therefor, all attorneys fees
and disbursements and all litigation costs and expenses incurred or paid by
Lessor in connection with the enforcement of this
Guaranty.
2. This Guaranty is an absolute and
unconditional guaranty of payment and performance (and not of
collection). Guarantor acknowledges that this Guaranty and
Guarantor's obligations and liabilities under this Guaranty are and shall at all
times continue to be absolute and unconditional in all respects, and shall at
all times be valid and enforceable irrespective of any other agreements or
circumstances of any nature whatsoever which might otherwise constitute a
defense to this Guaranty and the obligations and liabilities of Guarantor under
this Guaranty or the obligations or liabilities of any other person or entity
(including, without limitation, Lessee) relating to this Guaranty or the
obligations or liabilities of Guarantor hereunder or otherwise with respect to
the Lease or to Lessee. Guarantor hereby absolutely, unconditionally
and irrevocably waives any and all rights it may have to assert any defense,
set-off, counterclaim or cross-claim of any nature whatsoever with respect to
this Guaranty or the obligations or liabilities of Guarantor under this Guaranty
or the obligations or liabilities of any other person or entity (including,
without limitation, Lessee) relating to this Guaranty or the obligations or
liabilities of Guarantor under this Guaranty or otherwise with respect to the
Lease, in any action or proceeding brought by the holder hereof to enforce the
obligations or liabilities of Guarantor under this Guaranty. This
Guaranty sets forth the entire agreement and understanding of Lessor and
Guarantor, and Guarantor acknowledges that no oral or other agreements,
understandings, representations or warranties exist with respect to this
Guaranty or with respect to the obligations or liabilities of Guarantor under
this Guaranty. If at any time on or after the fifth (5th)
anniversary of the Commencement Date (as that term is defined in the Lease) of
the Lease, (i) no event of default under the Lease exists and no event exists
which, with the passage of time or the giving of notice or both, would
constitute an event of default under the Lease, and (ii) Lessee shall have met
the Net Worth Standard (as hereinafter defined), then as at such date (the
“Guaranty Termination Date”), this Guaranty shall be terminated as to subsequent
periods, but this Guaranty shall remain in effect for all periods prior to the
Guaranty Termination Date; provided, further, that under no circumstances shall
the expiration of the Guaranty have any effect with respect to any claim and/or
any amount accrued, due or otherwise known to Lessor (which was disclosed to
Lessee) or Lessee prior to the Guaranty Termination Date which shall survive;
provided, however, for the avoidance of doubt, this Guaranty shall not apply to
any matter which neither Lessor nor Lessee has knowledge of as of the Guaranty
Termination Date.
For the purposes of this Guaranty, the
term “Net Worth Standard” shall mean a single financial standard applicable to
Lessee that is comprised of the following two (2) separate financial
requirements: (a) First, that Lessee’s tangible net worth is Two Million Two
Hundred Fifty Thousand Dollars ($2,150,000.00) or more (with tangible “net
worth” for such purposes meaning the net worth of Lessee determined in
accordance with generally accepted accounting principles consistently applied,
but after deduction for any amounts attributable to (i) goodwill and other
intangible assets, and (ii) receivables from members, officers, directors and
affiliates of the Lessee); and (b) Second,
that Lessee’s fixed cost coverage ratio is not less than 1.75 (with
“fixed cost coverage ratio” for such purposes meaning a ratio of (a) the
Lessee’s earnings before interest, taxes, depreciation and amortization charges,
rent expense, lease expense and extraordinary or unusual items (all such amounts
determined in accordance with generally accepted accounting principles
consistently applied), for the twenty-four (24) month period ending on the date
at which the Lessee’s tangible net worth was determined in accordance with
clause (a) above, to (b) the sum of the
Lessee’s (i) interest expense (ii) scheduled principal payments (iii) dividend
payments and (iv) rent payments for real estate, equipment and vehicle leases
for the same twenty-four (24) month period. Notwithstanding the
foregoing, the reference to “Three Million Dollars ($3,000,000.00)” set forth
above shall be increased by two and one-half percent (2.5%) on each anniversary
of the date hereof.
3.Guarantor hereby covenants and agrees to and
with Lessor and its successors and assigns, that Guarantor may be joined in any
action by or against Lessee in connection with the Lease, and that recovery may
be had against Guarantor in such action or in any independent action against
Guarantor without Lessor or its successors or assigns first pursuing or
exhausting any remedy or claim against Lessee or its heirs, executors,
administrators, successors or assigns or any other remedy or claim under any
other security for, or guaranty of, the obligations or liabilities of Lessee
under the Lease.
4.Subject to the last sentence of Section 2, this
Guaranty shall be a continuing guaranty, and shall survive the expiration of the
term of the Lease or the sooner termination of the Lease. Guarantor
further covenants and agrees that this Guaranty shall not be affected or
impaired by, and shall remain and continue in full force and effect as to, any
renewal, amendment, modification or extension of the Lease and as to any
assignment of Lease or any interest therein or the subletting of all or portions
of the Premises, and shall cover, apply to and incorporate all of the terms,
covenants, conditions and other obligations of all such renewals, amendments,
modifications, extension, assignments and sublettings (without need of any
notice or consent of Guarantor thereto) regardless of who occupies the Premises
or whether or not any portion of the Premises is occupied.
8
5.Additionally, Guarantor further
covenants and agrees that this Guaranty shall not be affected or impaired by,
and shall continue in full force and effect notwithstanding (i) the
enforceability or unenforceability of any provision of the Lease or any such
renewal, amendment, modification, extension thereof, or any assignment of the
Lease or any interest therein, or sublease of all or any portion of the
Premises, (ii) any extension of time that may be granted to Lessee or its
successors or assigns, (iii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all the assets,
marshaling of assets and liabilities, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement or
readjustment of, or other similar proceeding affecting the Lessee or the
Guarantor or any of its or their assets or the disaffirmance, rejection or
postponement in any such proceeding of any of Lessee's obligations or
undertakings set forth in the Lease, or Guarantor’s obligations under this
Guaranty, (iv) the merger or consolidation of the Lessee with any corporation,
or the sale, divesture or other disposition of any or all of the interest of
Guarantor in the Lessee or any entity controlling, controlled by or under common
control with Lessee, or of any interest of Lessee or such controlling entity in
Guarantor (unless such transfer is approved by Lessor in accordance with the
terms and conditions of the Lease), (v) any modification, reduction or other
limitation of the Guaranteed Obligations that may occur pursuant to any
bankruptcy, insolvency, or similar proceeding affecting Lessee, or (vi) any
event or circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor, indemnitor or surety under the laws of the
State of New York or the U.S. federal government. Without limiting
the provisions of clause (v) above, this Guaranty shall be determined, measured
and calculated without taking into account any of the modifications, reductions
or other limitations of the Guaranteed Obligations described in clause (v)
above. Guarantor’s obligations and liability under this Guaranty for
the Guaranteed Obligations shall be determined as if no such modification,
reduction or limitation had occurred, and accordingly, Guarantor’s obligations
and liabilities under this Guaranty may exceed Lessee’s obligations and
liabilities under the Lease. For purposes hereof, "control" shall mean the
possession of the power to direct or cause the direction of the management and
policies of such corporation or other entity whether through the ownership of
voting securities, by contract or otherwise.
6.Guarantor warrants and represents that it is
the sole owner of a majority of the membership interests, capital stock and/or
equity interests of Lessee. The obligations of the Guarantor under
this Guaranty may not be assigned by Guarantor, unless such assignment has been
approved by Lessor in accordance with the terms and conditions of the
Lease.
7.All of Lessor's rights and remedies under the
Lease and/or under this Guaranty are intended to be distinct, separate and
cumulative and no such right or remedy therein or herein mentioned, whether
exercised by Lessor or not, is intended to be in exclusion or a waiver of any of
the others. This Guaranty cannot be modified, waived or terminated
unless such modification, waiver or termination is in writing, signed by
Lessor.
8.Neither the obligations nor the liabilities of
Guarantor hereunder shall be released, reduced, diminished, offset or otherwise
affected by the existence of, or Lessor's receipt, application, use, retention
or release of, any security given for the performance, observance and compliance
with any of the terms, covenants, conditions or other obligations required to be
performed, observed or complied with by Lessee under the Lease, and for the
purposes of Guarantor's obligations and liabilities under this Guaranty, Lessor
shall be deemed not to be holding any security under the Lease and not to have
applied, used or retained any security deposit. No failure or delay
on the part of Lessor in exercising any right, power or privilege under this
Guaranty shall operate as a waiver of or otherwise affect any such right, power
or privilege, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
9
9.No payment by Guarantor pursuant to any
provision hereof shall entitle Guarantor, by subrogation or otherwise, to the
rights of Lessor to any payment by Lessee or out of the property of Lessee, and
Guarantor hereby waives such subrogation, except after payment in full of all
sums owing by Lessee to Lessor under the Lease.
10.(a)This Guaranty is being delivered in the State
of Maryland, and the respective rights and obligations of Lessor and as a
further material inducement to Lessor to make and enter into the Lease, the
Guarantor hereunder shall be governed by and construed and enforced in
accordance with the internal substantive laws of the State of Ohio, applicable
to contracts made and to be performed entirely within said State, without
reference to choice or conflict of laws, principles or provisions which might be
otherwise applicable, except as otherwise required in respect of the validity
and legality of the execution and delivery of this Guaranty by the laws of the
jurisdiction of incorporation of Guarantor. Guarantor consents to
service of process by Lessor in any action, suit or other proceeding in any
court of record of the State of Maryland or a United States District Court
located in the State of Maryland to enforce any or all liabilities of the
Guarantor hereunder, by service of any summons, complaint, writ, judgment or
other legal process or notice upon the Guarantor upon Pillsbury Xxxxxxxx Xxxx
Xxxxxxx LLP, 0000 X Xxxxxx, XX, Xxxxxxxxxx, X.X. 00000 who is hereby
irrevocably designated, appointed and empowered by the Guarantor as their agent
to receive and accept on its behalf service of summons, complaint or such other
process in any action or legal proceeding. Guarantor (i) agrees that
such service shall be deemed in every respect effective service of process upon
Guarantor in any such suit, action or proceeding, (ii) agrees that such service
shall, to the fullest extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to Guarantor, and (iii) waives the
benefits of any other service of process regulations, laws or conventions to the
fullest extent that it is legally able to do
so.
(b)Guarantor hereby irrevocably submits and
consents to the jurisdiction of any court of record of the State of Maryland or
a United States District Court located in the State of Maryland over the person
of the Guarantor and the Guarantor hereby waives any claim that any such court
is an inconvenient forum and any objection to the laying of venue in any such
court. The Guarantor hereby represents and warrants that the
Guarantor is not entitled to claim sovereign or diplomatic immunity as to its
person or assets and hereby waives and expressly disclaims any such
immunities. In any action, suit or proceeding arising out of or in
connection with this Guaranty, the prevailing party shall be entitled to all
reasonable attorneys' fees and other out-of-pocket costs incurred in such
action, suit or proceeding including, without limitation, reasonable attorneys'
fees and disbursements together with all attorneys’ fees and other out-of-pocket
costs. Guarantor hereby waives trial by
jury.
(c)The foregoing notwithstanding, Guarantor agrees
that nothing in this Guaranty shall affect or limit service of process in any
manner permitted by law, or limit any right to bring proceedings against
Guarantor in the courts of any jurisdiction or to enforce in any lawful manner a
judgment obtained in one jurisdiction in any other jurisdiction.
13.Guarantor represents and warrants to Lessor as
follows:
(a)Guarantor is not in material default under the
terms, covenants or conditions of any agreement to which it is a party or by
which it is bound, such as would materially and adversely affect Guarantor’s
ability to carry out the terms, covenants and conditions of this
Guaranty.
10
(b)Guarantor has the full power, authority and
legal right to execute and deliver, and to perform and observe the provisions
of, this Guaranty, including the payment of all moneys hereunder, and any and
all financial information (oral or written) which Guarantor has supplied, or
caused to be supplied, to Lessor is complete, true and accurate as of the date
supplied. This Guaranty constitutes the legal, valid and binding
obligation of Guarantor and is enforceable in accordance with its terms.
(c)Guarantor is not in violation of any decree,
ruling, judgment, order or injunction applicable to it, or any law, ordinance,
rule or regulation of whatever nature which taken alone or in the aggregate,
would materially and adversely affect Guarantor’s ability to carry out any of
the terms, covenants and conditions of this Guaranty. There are no
actions, proceedings or investigations pending or to the actual knowledge of
Guarantor, threatened in writing against or affecting Guarantor (or any basis
therefor known to Guarantor) before or by any court, arbitrator, administrative
agency or other governmental authority or entity, which, taken alone or in the
aggregate, if adversely decided, would materially and adversely affect its
ability to carry out any of the terms, covenants and conditions of this
Guaranty.
(d)No authorization, approval, consent or
permission (governmental or otherwise) of any court, agency, commission or other
authority or entity is required for the due execution, delivery, performance or
observance by Guarantor of this Guaranty or for the payment of any sums
hereunder. Guarantor agrees that if any such authorization, approval,
consent, filing or permission shall be required in the future in order to permit
or effect performance of the obligations of Guarantor under this Guaranty, such
entity promptly shall inform Lessor or any of its successors or assigns and
shall obtain such authorization, approval, consent, filing or
permission.
(e)Neither the execution or delivery of this
Guaranty, nor the consummation of the transactions herein contemplated, nor the
observance, performance or compliance with the terms, covenants or conditions
hereof, conflict or will conflict with, or result in a breach of, any agreement
or instrument to which Guarantor is a party or by which it is bound, or
constitutes or will constitute a default thereunder.
(f)The financial statements furnished to Lessor
for Guarantor fairly present the respective financial condition of Guarantor as
of such dates in accordance with generally accepted accounting principles,
consistently applied or in accordance with international financial reporting
standards, and since the date of each of such financial statements, there has
been no material adverse change in such condition. For purposes of
this paragraph, the term “material adverse change” shall mean a reduction, by
more than 10%, in Guarantor’s (i) net worth as reflected (or would be reflected)
on the balance sheet of such entity for such prior quarter or prior calendar
year, as the case may be, or (ii) revenues as reflected (or would be reflected)
on the statement of revenue and expenses of such entity for such prior quarter
or prior calendar year, as the case may be.
14.Guarantor agrees that it will, at any
time and from time to time, within ten (10) days after Lessor's request therefor
(but not more often than once each calendar quarter) and, additionally, within
60 days after the end of each calendar year, during the term of the Lease,
execute, acknowledge and deliver to Lessor a statement (the “Guarantor Certificate”)
certifying (a) that this Guaranty is unmodified and in full force and effect (or
if there have been modifications, that this Guaranty is in full force and effect
as modified and stating such modifications), (b) to Guarantor’s knowledge
whether or not there are any existing claims, counterclaims, set-offs or
defenses against the enforcement of any of the agreements, terms, covenants or
conditions of this Guaranty, an (c) that each of the representations of
Guarantor, as set forth above, are true and correct as of the date of such
certificate, as if made on and as of such date. Guarantor agrees that
the Guarantor Certificate may be relied on by anyone holding or proposing to
acquire any interest in the Premises (as defined in the Lease) or providing
credit to Lessor or by any mortgagee or prospective mortgagee, or lessee or
prospective lessee, of the Premises or of any interest therein.
11
15.For purposes hereof, Guarantor shall be
deemed to have breached is obligations under this Guaranty and be in default
hereunder in the event that any of the following events (each, a “Default”) shall
occur:
(a)Guarantor’s failure to make any payment to
Lessor of the Guaranteed Obligations and/or any other amount to be paid by
Guarantor under this Guaranty.
(b)failure to deliver the Guarantor Certificate
timely in accordance with the provisions of this Guaranty;
(c)any of the representations of Guarantor shall
be or become after the date hereof untrue in any material respect (as if made on
such later date);
(d)Guarantor, or any entity with which Guarantor
consolidates for financial reporting purposes, makes an assignment for the
benefit of creditors or petitions or applies to any court for the appointment of
a trustee or receiver for itself or for any part of its assets, or commences any
proceedings under any bankruptcy, insolvency, readjustment of debt or
reorganization statute or law of any jurisdiction, whether now or hereafter in
effect; or if any such petition or application is filed or any such proceedings
are commenced, and such entity by any act approves thereof, consents thereto or
acquiesces therein; or an order is entered appointing any such trustee or
receiver, or adjudicating such entity bankrupt or insolvent, or approving the
petition in any such proceeding, or if any petition or application for any such
proceeding or for the appointment of a trustee or receiver is filed by any third
party against Guarantor or any entity with which Guarantor consolidates for
financial reporting purposes or their respective assets or any portion thereof,
and any of the aforesaid proceedings is not dismissed within sixty (60) days of
its filing; or
(e)Guarantor shall fail to perform any of its
obligations hereunder (not specifically listed in items (a) or (b) of this
paragraph 15 above) timely in accordance with the provisions of this
Guaranty.
(f)A Default by Guarantor under this Guaranty
shall be deemed to constitute a default by Lessee under the Lease.
16.It is a condition of the granting,
execution and delivery of the Lease that Guarantor executes and delivers this
Guaranty, and Guarantor acknowledges that it is receiving consideration from
Lessee and is executing and delivering this Guaranty in consideration
thereof.
17.If Lessor is obligated by any
bankruptcy or other law to repay to Lessee or Guarantor or to any trustee,
receiver or other representative of any of them, any amounts previously paid,
then this Guaranty shall be reinstated in the amount of such
repayment. Lessor shall not be required to litigate or otherwise
dispute its obligations to make such repayments if it is in good faith and on
the advice of counsel believes that such obligation exists.
12
18.If any provision of this Guaranty or the
application thereof to any person or circumstance shall to any extent be held
void, unenforceable or invalid, then the remainder of this Guaranty or the
application of such provision to persons or circumstances other than those as to
which it is held void, unenforceable or invalid shall not be affected thereby,
and each provision of this Guaranty shall be valid and enforced to the fullest
extent permitted by law.
IN WITNESS WHEREOF, Guarantor
has executed this Guaranty as of the date first above written.
__________________________________
Xxxx X. Xxxx a/k/a
Xxx Xxxx, personally
STATE OF
___________)
)ss.
COUNTY OF
___________ )
On the
______ day of September, 2009 before me, the undersigned, a Notary Public in and
for said State, personally appeared Xxxx X. Xxxx also known as Xxx Xxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
____________________________________________
Signature and Office
of individual taking acknowledgment
Exhibit
“C”
Form
of Non-Disturbance Agreement
[DOT
Master]
|
LOAN
#__________
|
SUBORDINATION, NON-DISTURBANCE
AND
ATTORNMENT AGREEMENT
This SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT (this “Agreement”), dated as of
_______________________, 200_, between TD BANK, N.A., a national
banking association, having an office at
____________________________________________________ ____________________ (the
“Lender”), and
_________________________________ _________________, a
________________________________ [corporation/limited liability
company/limited partnership], with offices at _______________ (the “Tenant”).
R E C I T A L S :
WHEREAS, Tenant has entered
into a __________________________, dated as of ___________________, 200__ (the
“Lease”), with Landlord
covering certain premises more fully described in the Lease (the “Premises”), which Premises are
a part of that the real property known as
_____________________________________________________________________ (the
“Property”), which
Property is more fully described on Schedule A attached hereto; and
WHEREAS, Lender is making a
deed of trust loan (the “Deed
of Trust Loan”) to Landlord, as borrower, in the original principal
amount of $___________________, which Deed of Trust Loan is evidenced by a Deed
of Trust Note dated ___________________, 200__ (the “Deed of Trust Note”), and is
secured by a Deed of Trust and Security Agreement (the “Deed of Trust”) and an
Assignment of Leases and Rents (the “Assignment”), each dated as of
______________________, 200__; and
WHEREAS, Lender requires as a
condition of the making of the Deed of Trust Loan that the Deed of Trust shall
unconditionally be and remain at all times a lien or charge upon the Property,
prior and superior to the Lease and the leasehold estate created thereby;
and
WHEREAS, Tenant has agreed to
the subordination of the Lease to the Deed of Trust on the condition that it is
assured of continued occupancy of the Premises under the terms of the Lease and
this Agreement.
NOW, THEREFORE, in
consideration of the mutual promises, covenants and agreements herein contained,
the parties hereto, intending to be legally bound hereby, promise, covenant and
agree as follows:
1.The Lease and all estates, rights,
options, liens and charges therein contained or created under the Lease are and
shall be subject and subordinate to the lien and effect of the Deed of Trust
insofar as it affects the real and personal property of which the Premises form
a part, and to all renewals, modifications, consolidations, replacements and
extensions thereof, and to all advances made or to be made thereunder, to the
full extent of amounts secured thereby and interest thereon.
2.In the event Lender takes possession of
the Property, as grantee-in-possession or otherwise, or forecloses the Deed of
Trust or otherwise causes the Property to be sold pursuant to the Deed of Trust,
the Lease shall remain in full force and effect and Tenant shall continue
occupancy of the Premises in accordance with the terms and provisions of the
Lease, and Lender agrees not to affect, terminate or disturb Tenant’s right to
quiet enjoyment and possession of the Premises under the terms of the Lease or
any of Tenant’s other rights under the Lease in the exercise of Lender’s rights
under the Deed of Trust so long as Tenant is not then in default (after giving
effect to any notice requirements and cure periods provided in the Lease) under
any of the terms, covenants or conditions of the Lease.
3.In the event that Lender succeeds to
the interest of Landlord under the Lease and/or Landlord’s leasehold interest in
the Property, or if anyone else acquires Landlord’s leasehold interest in the
Property or the right to possession of the Property upon the foreclosure of the
Deed of Trust or by other sale pursuant to the Deed of Trust, or upon the sale
of the Property by Lender or its successors or assigns after foreclosure or
other sale pursuant to the Deed of Trust or acquisition of title in lieu thereof
or otherwise, Lender or its successors or assigns or the then owner or holder of
Landlord’s leasehold interest in the Property after foreclosure or other sale
pursuant to the Deed of Trust (hereinafter collectively referred to in this
paragraph as “Successor
Landlord”) and Tenant hereby agrees to recognize one another as landlord
and tenant, respectively, under the Lease and to be bound to one another under
all of the terms, covenants and conditions of the Lease, and Successor Landlord
shall assume all of the obligations of Landlord under the
Lease. Accordingly, from and after such event, Successor Landlord and
Tenant shall have the same remedies against each other for the breach of an
agreement contained in the Lease as Tenant and Landlord had before Successor
Landlord succeeded to the interest of the Landlord; provided, however, that
Successor Landlord shall not be:
(a) liable for
any act or omission of any prior landlord (including Landlord); or
(b) subject to
any offsets or defenses that Tenant might have against any prior landlord
(including Landlord); or
(c) bound by
any rent or additional rent that Tenant might have paid for more than one month
in advance to any prior landlord (including Landlord); or
(d) bound by
any amendment or modification of the Lease made after the date of this Agreement
without Lender’s prior written consent; or
(e) liable for
return of any security deposit.
4.Although the foregoing provisions of
this Agreement shall be self-operative, Tenant agrees to execute and deliver to
Lender or to any person to whom Tenant is herein required to attorn, such other
instrument or instruments as Lender or such other person shall from time to time
reasonably request in order to confirm such provision.
5.Tenant hereby warrants and represents,
covenants and agrees to and with Lender:
(a) not to
alter or modify the Lease in any respect without prior written consent of
Lender;
16
(b) to deliver
to Lender at the addresses provided for in this Agreement a duplicate of each
notice of default delivered to Landlord at the same time as such notice is given
to Landlord; provided, however, that Tenant’s failure to provide Lender such
written notice shall not impair any rights granted or derived by Tenant under
the Lease and/or this Agreement;
(c) that
Tenant is now the sole owner of the leasehold estate created by the Lease and
shall not hereafter transfer the Lease except as permitted by the terms
thereof;
(d) not to
seek to terminate the Lease by reason of any default of Landlord without prior
written notice thereof to Lender and the lapse thereafter of such time as under
the Lease was offered to Landlord in which to remedy the default, and the lapse
of 15 days after the expiration of such time as Landlord was permitted to cure
such default; provided, however, that with
respect to any default of Landlord under the Lease which cannot be remedied
within such time, if Lender commences to cure such default within such time and
thereafter diligently proceed with such efforts and pursues the same to
completion, Lender shall have such time as is reasonably necessary but not to
exceed 30 days to complete curing such default. Notwithstanding the
foregoing, in the event either Lender or Landlord do not cure or commence curing
such default within the time provided to Landlord under the Lease and the nature
of the default threatens Tenant’s ability to conduct its daily business or
threatens to materially or adversely damage tenant’s property located on the
Leased Premises, Tenant shall be permitted to exercise its right under the
Lease;
(e) not to pay
any rent or other sums due or to become due under the Lease more than 30 days in
advance of the date on which the same are due or to become due under the
Lease;
(f) upon
Lender’s written request, to certify promptly in writing to Lender in connection
with any proposed assignment of the Deed of Trust, whether or not any default on
the part of Landlord then exists under the Lease; and
(g) upon
receipt from Lender of notice of any default by Landlord under the Deed of Trust
or the Assignment, to pay to Lender directly all rent and other sums due under
the Lease.
6.This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their successors and
assigns.
7.This Agreement shall be governed by and
construed in accordance with the laws of the jurisdiction in which the Property
is located.
8.Lender, Landlord and Tenant agree
that:
(a) neither
the officers, nor the directors, employees, agents or shareholders of Lender
shall be personally liable hereunder; and
(b) Tenant and
all others shall look solely to the interest of Lender in the Property for the
payment of any claim hereunder or for the performance of any obligation,
agreement, contribution or term to be performed or observed by it hereunder or
under the Security Instrument of any other agreement or document securing or
collateral to the Security Instrument.
9.Lender’s address for notices shall
be:
17
Attention: ______________________
with a copy
to:
Attention: ______________________
Tenant’s address for
notices shall be:
Attention: ______________________
with a copy
to:
_______________________________
Attention: ______________________
Landlord’s address
for notices shall be:
Attention: ______________________
with a copy
to:
_______________________________
Attention: ______________________
[NO
FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement by their duly authorized officers as
of the day and year first above written.
LENDER: | |||
TD BANK, N.A. | |||
By: | |||
Name:
|
|||
Title:
|
|||
LANDLORD: | |||
GTY MD LEASING, INC. | |||
By: | |||
Name:
|
|||
Title:
|
|||
TENANT: | |||
By: | |||
Name:
|
|||
Title:
|
ACKNOWLEDGMENTS
[INSERT TWO (2) STATE SPECIFIC NOTARY BLOCKS]
Schedule
A – Legal Description
19