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EXHIBIT 10.15
LEASE
(FREEZER LAND)
by and between
FIRST AMERICAN BUSINESS CAPITAL, INC.,
as Lessor
and
O'CHARLEY'S INC.,
as Lessee
Dated as of October 10, 2000
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INDEX
PAGE
SECTION 1. TERM.........................................................................1
1.1 TERM.........................................................................1
SECTION 2. RENT; NET LEASE..............................................................1
2.1 RENT.........................................................................1
2.2 NET LEASE....................................................................2
SECTION 3. USE AND OPERATION............................................................3
3.1 USE..........................................................................3
3.2 ENVIRONMENTAL ACTIVITY.......................................................4
SECTION 4. IMPOSITIONS; UTILITIES AND MAINTENANCE CONTRACTS.............................5
4.1 IMPOSITIONS..................................................................5
4.2 UTILITIES; MAINTENANCE CONTRACTS.............................................6
4.3 SURVIVAL.....................................................................7
SECTION 5. REPRESENTATIONS AND WARRANTIES; CONDITION OF THE FREEZER LAND; DISCLAIMER....7
SECTION 6. REPAIRS; ENCROACHMENTS.......................................................8
6.1 MAINTENANCE AND REPAIR.......................................................8
6.2 OBSTRUCTION OF ACCESS; ENCROACHMENTS.........................................8
SECTION 7. COMPLIANCE WITH APPLICABLE LAWS..............................................9
SECTION 8. CONTEST RIGHTS..............................................................10
8.1 LESSEE'S RIGHT TO CONTEST...................................................10
8.2 LESSOR'S JOINDER RIGHTS.....................................................11
SECTION 9. INSURANCE...................................................................11
9.1 INSURANCE POLICIES..........................................................11
9.2 ADDITIONAL POLICY REQUIREMENTS..............................................13
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SECTION 10. DAMAGE, DESTRUCTION AND CONDEMNATION........................................15
10.1 DEFINITION OF CASUALTY......................................................15
10.2 CASUALTY PROCEEDS...........................................................15
10.3 TERMINATION NOTICE; LESSOR TERMINATION NOTICE...............................15
10.4 CASUALTY OTHER THAN A SUBSTANTIAL CASUALTY..................................15
10.5 EVENT OF DEFAULT............................................................16
SECTION 11. LESSOR MAY PERFORM LESSEE'S OBLIGATIONS.....................................16
SECTION 12. DEFAULT OF LESSEE...........................................................17
12.1 EVENT OF DEFAULT DEFINED....................................................17
12.2 REMEDIES....................................................................18
12.3 WAIVER OF TRIAL BY JURY.....................................................21
12.4 REMEDIES CUMULATIVE.........................................................22
12.5 NO SUBSEQUENT WAIVER........................................................22
SECTION 13. ASSIGNMENT, SUBLETTING AND MORTGAGING.......................................22
13.1 ASSIGNMENT..................................................................22
13.2 SUBLETTING..................................................................22
13.3 CONSENT; EFFECT OF ASSIGNMENT OR SUBLETTING.................................23
SECTION 14. ACCESS TO THE FREEZER LAND..................................................23
SECTION 15. ALTERATIONS.................................................................24
15.1 APPROVAL....................................................................24
15.2 CONDITIONS..................................................................24
SECTION 16. LIENS; ZONING...............................................................26
16.1 LIENS.......................................................................26
16.2 ZONING......................................................................26
SECTION 17. SUBORDINATION AND ATTORNMENT................................................27
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17.1 SUBORDINATION AND ATTORNMENT................................................27
17.2 PROVISIONS SELF-OPERATIVE...................................................27
SECTION 18. QUIET ENJOYMENT.............................................................27
SECTION 19. ESTOPPEL CERTIFICATE........................................................27
SECTION 20. INTENTIONALLY OMITTED.......................................................28
SECTION 21. CONVEYANCE BY LESSOR........................................................28
SECTION 22. BROKERAGE...................................................................28
SECTION 23. NOTICES.....................................................................28
SECTION 24. ENTIRE AGREEMENT; NO WAIVER.................................................29
24.1 ENTIRE AGREEMENT............................................................29
24.2 NO WAIVER...................................................................29
SECTION 25. END OF TERM.................................................................29
25.1 SURRENDER...................................................................29
SECTION 26. NO MERGER...................................................................31
SECTION 27. MISCELLANEOUS...............................................................31
27.1 SECTION HEADINGS............................................................31
27.2 SUCCESSORS AND ASSIGNS......................................................31
27.3 AMENDMENT...................................................................31
27.4 INVALIDITY..................................................................31
27.5 CONSTRUCTION................................................................31
27.6 COUNTERPARTS................................................................31
SECTION 28. SUBMISSION TO JURISDICTION; GOVERNING LAW...................................31
SECTION 29. PERFORMANCE REQUIRED OF LESSOR..............................................32
SECTION 30. PURCHASE OPTION.............................................................32
30.1 PURCHASE OPTION.............................................................32
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SECTION 31. LIMITATION OF LESSOR LIABILITY..............................................32
31.1 INCORPORATION OF PROVISIONS OF PARTICIPATION AGREEMENT......................32
Exhibit A Description of the Freezer Land
Exhibit B Description of Freezer Improvements
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This LEASE, dated as of October __, 2000, by and between FIRST AMERICAN
BUSINESS CAPITAL, INC., a Tennessee corporation (together with its successors
and assigns, "LESSOR"), having an address at x/x XxXxxxx Xxxx, XxXxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, and O'CHARLEY'S INC., a Tennessee corporation
("LESSEE"), having an address at 0000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
W I T N E S S E T H:
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WHEREAS, Lessor and Lessee, among others, have entered into a
Participation Agreement, of even date herewith (the "PARTICIPATION AGREEMENT";
all capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Participation Agreement and Appendix A attached
thereto), pursuant to which, among other things, Lessor has acquired the HQ
Property.
WHEREAS, pursuant to the Participation Agreement, Lessor and Lessee
have entered into that certain Lease (the "SYNTHETIC LEASE"), dated as of the
date hereof pursuant to which Lessee leased, among other properties the HQ Land
(excluding, however, the Freezer Land, as defined below) and HQ Improvements
from Lessor.
WHEREAS, Lessee desires to lease the land described on Exhibits A and
A-1 attached hereto (the "FREEZER LAND") from Lessor and Lessor is willing to
lease the Freezer Land to Lessee on the terms and conditions hereinafter set
forth.
WHEREAS, Lessee is the Owner of the Freezer Improvements (as defined in
Exhibits B and B-1 attached hereto) located on the Freezer Land.
NOW, THEREFORE, in consideration of the rents to be paid by Lessee and
of the covenants and agreements hereinafter contained to be observed, performed
and complied with by Lessor and Lessee and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lessor hereby demises and leases to Lessee, and Lessee hereby hires and takes
from Lessor, for the term and subject to the terms, provisions and conditions
hereinafter specified, the Freezer Land. All capitalized terms used herein but
not defined herein shall have the meanings ascribed to them in the Participation
Agreement and Appendix A of the Synthetic Lease.
SECTION 1. TERM
1.1 TERM. The Freezer Land is leased for a period (the "TERM") which
shall commence on the date hereof (the "COMMENCEMENT DATE") and shall end on
midnight on the day immediately preceding the fifteenth (15th) anniversary of
the Commencement Date (the "EXPIRATION DATE") or such earlier date as this Lease
shall be terminated pursuant to any provision hereof.
SECTION 2. RENT; NET LEASE
2.1 RENT. (a) During the Term of this Lease, Lessee shall pay basic
rent ("BASIC RENT") of $48,000.00 per year, payable in equal quarterly
installments equal to $12,000.00 payable in arrears on the first day of each
calendar quarter ("RENTAL PAYMENT
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DATE"). All Basic Rent shall be paid by Lessee directly to Agent on behalf of
Lessor, not later than 12:00 noon (Nashville, TN time) on each Rental Payment
Date in Dollars, at such address as Agent shall designate in a notice to Lessee.
If any Rental Payment Date falls on a day that is not a Business Day, Basic Rent
shall be due and payable on the next succeeding Business Day.
(b) All amounts that Lessee is required to pay or discharge pursuant to
this Lease in addition to Basic Rent, together with every fine, penalty, overdue
interest and cost which may be added for nonpayment or late payment thereof, and
all other amounts, liabilities and obligations of whatsoever nature relating to
the Freezer Land, including, without limitation, those arising under any
easements, restrictions, or other similar agreements affecting the Freezer Land
or any adjoining property thereto, and all interest and penalties that may
accrue thereon in the event of Lessee's failure to pay such amounts when due,
and all actual damages, reasonable and documented costs and expenses (including
but not limited to reasonable and documented attorneys' fees and disbursements)
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 shall constitute additional rent
hereunder (all of the foregoing, "ADDITIONAL Rent"). Lessee covenants (A) to pay
the Basic Rent and the Additional Rent and (B) to observe, perform and comply
with, and to suffer and permit no material violation of, the terms, covenants
and conditions of this Lease. In the event of any failure by Lessee to pay or
discharge any such Additional Rent, Lessor, except as may be otherwise provided
herein, shall have all rights, powers and remedies provided for herein or by
Applicable Law or otherwise in the case of nonpayment of Basic Rent. Lessee may
pay Additional Rent in respect of amounts due to third parties directly to the
Persons entitled thereto and such payment, if it fully discharges the claim of
such third party, shall fully discharge Lessee's obligations with respect to
such particular item of Additional Rent.
2.2 NET LEASE. (a) This Lease is a "net lease" and Lessee shall pay (i)
all Basic Rent and (ii) any Additional Rent payable to the Lessor without
notice, demand, counterclaim, set-off, deduction, or defense, and without
abatement, suspension, deferment, diminution or reduction, free from any
charges, assessments, impositions, expenses or deductions of any and every kind
or nature whatsoever, including, without limitation, (1) any right Lessee may
have against Lessor, any contractor or any other Person for any reason (whether
in connection with this transaction or any other transaction), (2) any breach,
default or misrepresentation by Lessor or any other Person under this Lease or
(3) any invalidity or unenforceability in whole or in part of this Lease or any
other infirmity herein or therein, or any lack of power of authority of any
party to this Lease. All costs, expenses and obligations of every kind and
nature whatsoever relating to the Freezer Property (as defined below) and the
use and occupancy thereof by Lessee or anyone claiming by, through or under
Lessee as Lessee hereunder which may arise or become due during or with respect
to the period constituting the Term hereof shall be paid by Lessee, and Lessee
shall indemnify Lessor against any of the foregoing as provided in the
Participation Agreement; provided, however, that Lessee shall be entitled to
dispute or raise defenses or counterclaims with respect to its obligation to pay
any Additional Rent directly due to any party other than the Lessor so long as
such dispute is conducted in accordance with SECTION 8 of this Lease and Lessee
shall not be deemed to be in Default under this Lease during the pendency of
such protest or contest. Lessee assumes, during the Term of this Lease, the sole
responsibility for the condition (physical or environmental), use, operation,
maintenance, subletting and management of the Freezer Property, and Lessee shall
indemnify Lessor with respect to the foregoing and Lessor shall have no
responsibility in respect
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thereof and shall have no liability for damage to the property of Lessee or any
sublessee of Lessee on any account or for any reason whatsoever. Without
limiting the generality of the foregoing, during the Term of this Lease, Lessee
shall perform all of the obligations of the sublessor under any subleases
permitted pursuant to SECTION 13.2 hereof affecting all or any part of the
Freezer Land which Lessee may hereafter enter into as sublessor to the extent
that Lessee's failure to perform such obligations would result in the occurrence
of a Default or Event of Default under this Lease.
(b) Except as otherwise expressly provided herein, this Lease shall not
terminate, nor shall Lessee have any right to terminate this Lease, nor shall
Lessee be entitled to any abatement or reduction of rent hereunder, nor shall
Lessee have the right to be released or discharged from any obligations or
liabilities hereunder for any reason, including, without limitation, any damage
to or destruction of all or part of the Freezer Land; any restriction,
deprivation (including eviction) or prevention of, or any interference with, any
use or the occupancy of the Freezer Land (whether due to any defect in or
failure of Lessor's title to the Freezer Land, any Lessor Lien or otherwise);
any condemnation, requisition or other taking or sale of the use, occupancy or
title to the Freezer Land; any environmental condition affecting the Freezer
Land, any action, omission or breach on the part of Lessor under this Lease or
under any other agreement between Lessor and Lessee; the inadequacy or failure
of the description of the Freezer Land to demise and let to Lessee the property
intended to be leased hereby; the impossibility or illegality of performance by
Lessor or Lessee or both; any action of any court, administrative agency or
other governmental authority; or any other cause, whether similar or dissimilar
to the foregoing, any present or future law notwithstanding.
SECTION 3. USE AND OPERATION
3.1 USE. (a) Subject to the provisions of this SECTION 3, the Freezer
Land and Freezer Improvements located thereon (together "FREEZER PROPERTY")
shall be used and occupied by Lessee and any sublessees of Lessee permitted
under this Lease only for the operation of a commercial freezer storage facility
in compliance with all Applicable Laws, any certificate(s) of occupancy
affecting the Freezer Property and the terms of any Permitted Encumbrances.
Lessee shall not use, occupy, maintain or operate the Freezer Property, nor
suffer or permit the Freezer Property or any part thereof to be used, occupied,
maintained or operated, nor bring into or keep at the Freezer Property, nor
suffer or permit anything to be brought into or kept therein, which would in any
way (i) violate any material term, covenant or condition of the Operative
Documents (so long as the applicable Operative Document remains in full force
and effect), (ii) violate any restrictive covenant, operating covenant,
encumbrance or easement now or hereafter affecting the Freezer Land, (iii)
materially adversely affect the value of the Freezer Land, (iv) make void or
voidable any insurance policy then in force with respect to the Freezer Property
or make any such insurance unobtainable, (v) cause material physical damage to
the Freezer Land or any part thereof, or (vi) constitute a public or private
nuisance. Without limiting the generality of the foregoing, Lessee shall obtain
and maintain in full force and effect throughout the Term any and all
certificates of occupancy, permits and licenses required by Applicable Laws as
and when so required.
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(b) In the event that a change is required to be made to the
certificate of occupancy necessary to operate the Freezer Property as it is
presently being used, Lessee shall obtain such certificate of occupancy at its
sole cost and expense.
3.2 ENVIRONMENTAL ACTIVITY. (a) For purposes of this Lease, the term
"ENVIRONMENTAL ACTIVITY" means any storage, existence, release, threatened
release, seepage, generation, abatement, removal, disposal, handling or
transportation from, under, into or on the Freezer Property of any matter that
contains substances defined in or regulated under any Applicable Law relating to
the environment, health, safety or Hazardous Materials, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. xx.xx. 9601 et seq.; the Resource Conservation
and Recovery Act, 42 X.X.X.xx.xx. 6901 et seq.; the Hazardous Materials
Transportation Act, 49 X.X.X.xx.xx. 1801 et seq.; the Clean Water Act, 33
X.X.X.xx.xx. 1251 et seq.; the Toxic Substances Control Act, 15 X.X.X.xx.xx.
2601 et seq.; the Clean Air Act, 42 X.X.X.xx.xx. 7401 et seq.; the Federal
Insecticide, Fungicide and Rodenticide Act, 7 X.X.X.xx.xx. 136 et seq.; and the
Occupational Safety and Health Act, 29 X.X.X.xx.xx. 651 et seq.; and the term
"COMPARABLE BUILDINGS" means nongovernmental, noninstitutionally owned
commercial freezers or frozen food storage facilities, similar in age, use,
nature and character and having comparable facilities to the Freezer Property,
located in the same area as the Freezer Property.
(b) Lessee shall, and shall require all employees, contractors,
subcontractors, representatives, affiliates, consultants, occupants and any and
all other Persons to, (i) comply in all material respects with all Applicable
Laws relating to any Environmental Activity on the Freezer Property, and (ii)
conduct any Environmental Activity in, on or, directly or indirectly, related to
or in connection with the Freezer Property or any part thereof in a manner
consistent with prudent industry practice and in a manner which does not pose a
significant risk to human health or the environment. Lessee's obligations
hereunder with respect to Hazardous Materials and Environmental Activities are
intended to bind Lessee with respect to matters and conditions in, on, under,
beneath, with respect to, affecting, related to, in connection with or involving
the Freezer Property or any part thereof, and unless covered by the preceding
clause, Lessee's obligations hereunder shall not be construed to extend to
matters and conditions with respect to any other properties or assets of Lessee.
(c) Lessee shall promptly forward to Lessor and Agent copies of any
material notices, orders, complaints, summons, or any other notifications
received by Lessee relating to alleged violations of any Applicable Law and
potentially adversely affecting the Freezer Property, or any part thereof, or
potential adverse actions in any way involving environmental, health, or safety
matters affecting the Freezer Property or any part thereof; provided that any of
the foregoing matters need only be forwarded to Lessor if they could reasonably
be expected to result in obligations or liabilities in excess of the lesser of
$50,000 or 10% of the fair market value of the Freezer Land.
(d) If, at any time, (i) the condition, operation or use of the Freezer
Property or any part thereof could reasonably be expected to result in cleanup
obligations or corrective action, or in liability under any Applicable Law, in
excess of the lesser of $50,000 or 10% of the fair market value of the Freezer
Land; (ii) there are Hazardous Materials located at, in, on, under or from the
Freezer Property for which cleanup or corrective action could reasonably be
expected
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to cost in excess of the lesser of $50,000 or 10% of the fair market value of
the Freezer Land is required under any Environmental Law; or (iii) because of
any spill or release of Hazardous Material with respect to the Freezer Property,
cleanup of or corrective action could reasonably be expected to cost in excess
of the lesser of $50,000 or 10% of the fair market value of the Freezer Land
with respect to such Hazardous Material is authorized under CERCLA or any
similar state or local law or may be necessary to prevent or eliminate a
significant risk to human health or the environment, then Lessee shall, as soon
as practicable but in no event later than ten days after discovering such
condition, operation or use, notify Lessor. Irrespective of whether Lessee is
required to give notice pursuant to the preceding sentence, Lessee shall
immediately initiate, at its sole cost and expense, such actions as are
reasonably necessary to comply in all material respects with all Applicable Laws
affecting the Freezer Property and to alleviate any significant risk to human
health or the environment relating to the Freezer Property. Once Lessee
commences such actions, Lessee will thereafter diligently and expeditiously
proceed to comply in all material respects and in a timely manner with all
Applicable Laws affecting the Freezer Property and to eliminate any significant
risk to human health or the environment relating to the Freezer Property.
SECTION 4. IMPOSITIONS; UTILITIES AND MAINTENANCE CONTRACTS
4.1 IMPOSITIONS. (a) Lessee shall pay all taxes (including, but not
limited to, any gross receipts, sales, real estate taxes, use and occupancy
taxes, general intangibles taxes and personal property taxes (tangible and
intangible), stamp taxes and all voluntary payments that may be paid or payable
by Lessee in lieu thereof), assessments (special or otherwise), transit taxes,
county taxes, excises, levies, imposts, duties, vault and other license, rent
and permit fees and other municipal and governmental impositions, charges and
withholdings, general and special, ordinary and extraordinary, unforeseen and of
any kind and nature whatsoever, together with any penalty, fine, addition to tax
and interest thereon (herein sometimes collectively referred to as "IMPOSITIONS"
and any of the same as an "IMPOSITION"), which at any time during the Term may
be assessed, levied, confirmed, charged, laid, imposed upon, or become due and
payable out of or in respect of, or become a Lien on (i) the Freezer Land or any
part thereof, (ii) any appurtenance to the Freezer Land, (iii) the construction,
financing, ownership, operation, use, condition, maintenance, repair, leasing,
or subleasing of the Freezer Land or any portion thereof, (iv) the Freezer
Improvements, (v) any personal property located at the Freezer Land, (vi) any
rent or other income received by Lessee from subtenants, licensees or other
users or occupants of the Freezer Land or any part thereof or (vii) any
occupancy, use or possession of the Freezer Property or any part thereof, or any
streets, sidewalks, alleys or vaults, or any part thereof, adjoining the Freezer
Land, or any activity conducted thereon or sales or rentals therefrom. Such
payments shall be made by Lessee directly to the applicable authority and before
any fine, penalty, interest, cost or imposition shall become due or be imposed
by operation of law. Lessee shall furnish to Lessor and Agent, promptly but in
any case within ten (10) Business Days after written request by either Lessor or
Agent, proof of the payment of any Imposition which is payable by Lessee and,
upon written demand of either Lessor or Agent, proof of the filing of all
returns and other materials required in connection therewith.
(b) If, under Applicable Laws, any Imposition payable by Lessee
hereunder may be paid in installments, Lessee may pay the same in installments
and in such event shall pay each such installment as may become due before the
date when such installment would become
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delinquent or any fine, penalty, further interest or cost may be added thereto.
To the extent that the same may be permitted by Applicable Laws, Lessee shall
have the right to apply for the conversion of any Imposition to make the same
payable in annual installments over a period of years, and upon such conversion,
Lessee shall be obligated to pay and discharge said periodic installments as
required by this SECTION.
(c) Nothing in this Lease shall require Lessee to pay any local, state,
federal or foreign income taxes assessed against Lessor, local, state or federal
capital levy, gross receipts (other than in the nature of a rent, sales or
occupancy tax), estate, succession or inheritance taxes imposed on Lessor or
corporation franchise taxes, unincorporated business taxes or excise taxes (to
the extent arising from the nature of the business of the applicable Person or
such Person's corporate privileges) imposed on Lessor; provided, however, that
if any time during the Term the methods of taxation prevailing on the date
hereof shall be altered so as to cause the whole or any part of the taxes,
assessments, levies, or charges now or hereafter levied, assessed, or imposed on
real estate and the improvements thereon to be levied, assessed and imposed
wholly or partially as a capital levy or otherwise on the rents received
therefrom, or if any tax, corporation franchise tax levy or unincorporated
business tax levy (including, but not limited to, any state or federal levy) or
charge or any part thereof shall be specifically measured by or based in whole
or in part upon the Freezer Property, or any portion thereof (including, but not
limited to, the acquisition, leasing, use or value thereof) and shall be imposed
upon Lessor in substitution for and/or in addition to any such taxes,
assessments, levies or charges levied, assessed or imposed upon real estate,
then all such taxes, assessments, levies, or charges, or the part thereof so
measured or based shall be deemed to be and shall be included within the term
"Impositions", and Lessee shall pay and discharge same as herein provided in
respect of the payment of Impositions.
(d) The certificate, advice or xxxx of the appropriate official
designated by law of payment or non-payment of an Imposition shall be prima
facie evidence that such Imposition is paid or due and unpaid, as the case may
be, at the time of the making or issuance of such certificate, advice or xxxx.
(e) Provided Lessee remains the lessee under the Synthetic Lease and
the Synthetic Lease remains in force and effect, Lessee's obligations under
SECTION 4.1(a) hereof shall be discharged by Lessee's compliance with Section
4.1(a) of the Synthetic Lease.
(f) In the event that Lessee is no longer the Lessee under the
Synthetic Lease or the Synthetic Lease is no longer in force and effect (a
"SYNTHETIC TERMINATION"), then Lessor shall, at the sole cost and expense of
Lessee, obtain appraisals of the HQ Improvements and the Freezer Improvements.
Subsequent to a Synthetic Termination, for the purposes of SECTION 4.1(a)
hereof, Impositions for the Freezer Property shall be equal to the sum of (a)
the product of (i) the total amount of Impositions on the HQ Land and (ii) the
ratio obtained by dividing the square footage of the Freezer Land by the square
footage of the HQ Land and (b) the product of (i) the total amount of
Impositions on the HQ Improvements and the Freezer Improvements and (ii) the
ratio obtained by dividing the appraised value of the Freezer Improvements by
the appraised value of the HQ Improvements and the Freezer Improvements.
4.2 UTILITIES; MAINTENANCE CONTRACTS. Lessee shall pay, or cause to be
paid, all charges for gas, electricity, light, heat, water, sewerage, and power,
for protective and security
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services, for telephone and other communication services, and for all other
public or private utility services, which shall be used, rendered or supplied
upon or in connection with the Freezer Property, or any part thereof, at any
time during the Term, and Lessee will do all things required for the maintenance
and continuance of all such services as are necessary for the proper maintenance
and operation of the Freezer Property. Subsequent to any Synthetic Termination
Lessee shall arrange for the provision of all such utilities to the Freezer
Property directly from the applicable providers.
4.3 SURVIVAL. The obligations of Lessee pursuant to this SECTION 4
accruing during the Term shall survive the expiration or termination of this
Lease.
SECTION 5. REPRESENTATIONS AND WARRANTIES; CONDITION OF THE FREEZER LAND;
DISCLAIMER
NOTWITHSTANDING ANYTHING IN THIS LEASE TO THE CONTRARY, LESSEE
ACKNOWLEDGES THAT LESSEE IS FULLY FAMILIAR WITH AND HAS EXAMINED THE FREEZER
LAND, THE PHYSICAL CONDITION THEREOF AND THE LEASES AND OCCUPANCIES, IF ANY,
AFFECTING THE FREEZER LAND. LESSEE ACCEPTS THE FREEZER LAND IN ITS EXISTING
CONDITION AND STATE OF REPAIR, AND IS LEASING THE SAME IN "AS IS" CONDITION.
LESSEE AGREES THAT NO REPRESENTATIONS, STATEMENTS, OR WARRANTIES, EXPRESS OR
IMPLIED, HAVE BEEN MADE BY OR ON BEHALF OF LESSOR, ANY BROKER, ADVISOR OR ANY
OTHER PERSON IN RESPECT OF THE FREEZER LAND, THE RIGHTS OF ANY PARTIES IN
POSSESSION, THE STATUS OF TITLE THEREOF, THE PHYSICAL CONDITION THEREOF, THE
ZONING OR OTHER LAWS, REGULATIONS, RULES, ORDERS AND OTHER APPLICABLE LAWS,
IMPOSITIONS, OR THE USE THAT MAY BE MADE OF THE FREEZER LAND (OR ANY PORTION
THEREOF), THAT LESSEE HAS RELIED ON NO SUCH REPRESENTATIONS, STATEMENTS OR
WARRANTIES, AND THAT LESSOR SHALL IN NO EVENT WHATSOEVER BE LIABLE FOR ANY
LATENT OR PATENT DEFECTS IN THE FREEZER LAND. LESSEE ASSUMES ALL RISKS RESULTING
FROM, AND SHALL PROMPTLY CORRECT, ANY DEFECTS (PATENT OR LATENT) IN THE FREEZER
LAND OR FROM ANY FAILURE OF THE SAME TO COMPLY WITH ANY APPLICABLE LAW OR THE
USES OR PURPOSES FOR WHICH THE SAME MAY BE OCCUPIED. LESSEE IS IN FULL
POSSESSION OF THE FREEZER LAND. LESSOR HAS NOT MADE AN INSPECTION OF THE FREEZER
LAND (OR ANY PORTION THEREOF) OR OF ANY FIXTURE OR OTHER ITEM CONSTITUTING A
PORTION THEREOF, AND LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED OR OTHERWISE, WITH RESPECT TO THE SAME OR THE LOCATION, USE,
DESCRIPTION, DESIGN, MERCHANTABILITY, FITNESS FOR USE FOR ANY PARTICULAR
PURPOSE, CONDITION, OR DURABILITY THEREOF, OR AS TO THE QUALITY OF THE MATERIAL
OR WORKMANSHIP THEREIN, OR AS TO LESSOR'S TITLE THERETO OR OWNERSHIP THEREOF OR
OTHERWISE, IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY
LESSEE. IN THE EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE FREEZER
LAND OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER PATENT
OR LATENT, LESSOR SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT
THERETO,
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NOR SHALL LESSOR BE REQUIRED TO FURNISH ANY FACILITIES OR SERVICES OR MAKE ANY
REPAIRS OR STRUCTURAL CHANGES OR ALTERATIONS IN OR TO THE FREEZER LAND. THE
PROVISIONS OF THIS SECTION 5 HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A
COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY LESSOR, EXPRESS OR IMPLIED,
WITH RESPECT TO THE FREEZER LAND OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A
PORTION THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR
ANOTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE.
SECTION 6. REPAIRS; ENCROACHMENTS
6.1 MAINTENANCE AND REPAIR. Throughout the Term, Lessee shall at its
sole risk, cost and expense take good care of the Freezer Land and of any
buildings, structures, facilities, improvements, landscaping, grounds and
appurtenances constituting a part thereof, and keep the same and all parts
thereof, together with any and all Alterations, in good and safe order and
condition, in accordance with the practices of prudent owners of similar
properties in the area in which the Freezer Land is located and at least equal
to the maintenance standards of Lessee or its Affiliates with respect to similar
properties owned or operated by Lessee or its Affiliates, suffering no waste or
injury, and shall, at Lessee's sole risk, cost and expense, make all changes and
repairs, restorations and replacements (collectively, "REPAIRS"), interior and
exterior, structural and non-structural, ordinary and extraordinary, foreseen
and unforeseen, in and to the Freezer Land or any part thereof, and equipment
and personal property in and upon the Freezer Land or any part thereof,
including, without limitation, vaults, sidewalks, curbs, water, sewer and gas
connections, meters, pipes and mains, and all other fixtures and equipment now
or hereafter belonging to the Freezer Land or any part thereof, which Repairs
may be required to maintain the Freezer Land in good mechanical condition and
repair, ordinary wear and tear excepted, in accordance with prudent industry
practice, or which may be required pursuant to any Applicable Law or insurance
requirement under SECTION 9 hereof. Lessee shall, in accordance with the
standards set forth in this SECTION 6, repair or replace each item constituting
the Freezer Land that shall have become worn out in whole or in part; provided,
however, that the fair market value of the Freezer Land shall not be lessened
thereby and that such replacements shall be of a type currently used in the
industry for the same purpose. All materials and equipment used or installed in
connection with such repairs, restorations and replacements shall be at least
equivalent in standard, quality and usefulness to the standard, quality and
usefulness of the original materials and equipment.
6.2 OBSTRUCTION OF ACCESS; ENCROACHMENTS. Lessee shall not obstruct or
grant its permission to any third party to obstruct the streets, sidewalks, curb
cuts or alleys adjoining or providing access to the Freezer Land. In the event
that all or any part of the improvements adjacent to the Freezer Land shall
encroach upon the Freezer Land or right-of-way adjoining or adjacent thereto or
any part thereof, or shall violate any agreements or conditions affecting the
Freezer Land or any part thereof, or shall obstruct any easement or right-of-way
to which the Freezer Land or any part thereof may be subject (except easements
or rights-of-way granted to or arising in favor of Lessor), then Lessee shall,
at its sole cost and expense, either (i) contest such matter pursuant to SECTION
8 hereof, (ii) obtain valid and effective permits for or consents to such
encroachments and/or violations (without any liability to Lessor or the Agent
for which such parties are not indemnified) or waivers or settlements of all
claims,
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liabilities and damages resulting therefrom, or (iii) make such changes,
including alteration or removal, to the Freezer Land and take such other action
as shall be reasonably necessary to rectify such encroachments, violations,
hindrances, obstructions or impairments, subject to the Lessor's consent if and
to the extent required by SECTION 15 hereof. Lessor shall not be required to
construct any improvements on the Freezer Land, or to furnish any services or
facilities or to make any repairs, restorations, replacements or alterations in
or to the Freezer Property, or to maintain or inspect the Freezer Property in
any way. Any inspection which Lessor may make of the Freezer Property shall be
solely for the purpose of advising Lessor of the condition thereof and Lessee's
compliance with the terms, covenants and conditions of this Lease and shall not
limit or otherwise alter the respective rights and obligations of Lessor and
Lessee hereunder or be deemed to constitute an approval by Lessor of the
condition of the Freezer Property, Lessee's performance of its obligations
hereunder or any other matter. LESSEE HEREBY ASSUMES THE FULL AND SOLE
RESPONSIBILITY FOR THE CONDITION, OPERATION, REPAIR, REPLACEMENT AND MAINTENANCE
OF THE FREEZER PROPERTY IN ACCORDANCE WITH THE TERMS, COVENANTS AND CONDITIONS
SET FORTH IN THIS LEASE IRRESPECTIVE OF ITS RIGHT UNDER ANY APPLICABLE LAWS TO
MAKE THE SAME AT THE EXPENSE OF LESSOR.
SECTION 7. COMPLIANCE WITH APPLICABLE LAWS
Lessee shall, throughout the Term at Lessee's sole cost and expense,
promptly comply with and cause the Freezer Property to comply in all material
respects with all Applicable Laws, including, without limitation:
(a) the requirements of every applicable statute, code, law, rule,
ordinance, regulation, order, policy or directive, now or hereafter made by
any federal, state, municipal or other public body, department, bureau,
office or authority, and any judicial or administrative interpretation
thereof, whether present or future, foreseen or unforeseen, ordinary or
extraordinary, whether or not the same are presently within the
contemplation of Lessor or Lessee, or whether the same require structural
or extraordinary repairs, alterations or additions, and irrespective of the
cost thereof, which may be applicable from time to time to (i) the Freezer
Property or any part thereof, including, but not limited to, the
foundations of any building or improvements constituting a part of the
Freezer Property or any appurtenances thereto; (ii) the use or occupation
of the Freezer Property, including, but not limited to, any demolition,
construction, alteration, structural change or addition of, in or to any
improvements at any time upon, connected with, appurtenant to or
constituting a part of the Freezer Property; (iii) any Environmental
Activity; (iv) the removal of any encroachment; (v) any vault, sidewalk or
other space in, under or over any street adjoining the Freezer Land; and
(vi) any agreement, contract, easement, encumbrance, covenant or
restriction affecting the Freezer Property or any part thereof; and
(b) any applicable regulation, rule or order of any Board of Fire
Underwriters, Fire Insurance Rating Organization, or other body having
similar functions, or of any liability or fire insurance company insuring
the Freezer Property, whether present or future, foreseen or unforeseen,
ordinary or extraordinary, whether or not the same are presently within the
contemplation of Lessor or Lessee, whether the same require
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structural or extraordinary repairs, alterations or additions, and
irrespective of the cost thereof, which may be applicable from time to time
and whether or not compliance is required on account of any particular use
to which the Freezer Property or any part thereof may be put.
SECTION 8. CONTEST RIGHTS
8.1 LESSEE'S RIGHT TO CONTEST. Notwithstanding anything to the contrary
provided in this Lease, Lessee shall have the right to protest or contest in
good faith (i) the amount, validity or applicability of any Imposition, (ii) any
charge for the services described in SECTION 4.2 hereof, (iii) the validity or
applicability of any Applicable Law or (iv) the validity or applicability of any
Lien; provided that and so long as (a) the same is done by Lessee upon prior
notice to Lessor and Agent, in good faith, by proper proceedings and in
accordance with Applicable Laws, at Lessee's sole cost and expense and with due
diligence and continuity so as to resolve such protest or contest as promptly as
reasonably possible under the circumstances, (b) the Freezer Land is not in and
will not be in material danger of being forfeited or lost by reason of such
protest or contest, (c) in the case of any contested Lien, such Lien shall be
bonded or otherwise removed from record within the time period set forth in
SECTION 16.1 hereof, (d) if the amount of such Imposition (together with any
potential interest or penalties), Lien or charge or the cost of complying with
such Applicable Law exceeds 5% of the fair market value of the Freezer Land,
Lessee shall deposit with Lessor, or otherwise provide Lessor with, security in
an amount and in form and substance reasonably satisfactory to Lessor and Agent
for application to the amount of any unpaid Imposition or other charge or the
cost of curing any violation of Applicable Laws being contested, or discharging
or satisfying any Lien, as the case may be, and to secure Lessor against any
loss or damage arising out of such protest or contest or the deferral of
Lessee's performance or compliance, (e) in any event, each such protest or
contest shall be concluded and any and all actions necessary to comply with
Applicable Laws or to discharge any Lien shall be taken and any contested
amounts (together with any penalties, interest and costs in connection
therewith) shall be paid prior to the date the Freezer Property or any part
thereof is listed for an in rem action with respect to the noncompliance with
any Applicable Law, the foreclosure of any Lien or the nonpayment of such
Imposition or other charge, as the case may be, or any writ or order is issued
under which the Freezer Property or any part thereof may be sold, forfeited or
lost by reason of such noncompliance, foreclosure or nonpayment, (f) such
protest or contest shall not subject Lessor to prosecution for a criminal
offense or a claim for civil liability and (g) no Event of Default hereunder
shall have occurred and be continuing. Pending the determination of any such
protest or contest in accordance with the immediately preceding sentence, Lessee
shall not be obligated to comply with any legal requirement being so contested
or to pay the Imposition or other charge which is being protested or contested
if such noncompliance or non-payment is permitted under Applicable Laws and does
not result in a material risk of the discontinuance of any service that is
necessary for the proper maintenance and operation of the Freezer Property, as
the case may be. Upon written request by Lessor or Agent, Lessee shall provide
Lessor and Agent with copies of any applications, petitions or other pleadings
filed in connection with any protest or contest pursuant to this SECTION. If
required by Applicable Laws, Lessee may conduct any protest or contest permitted
by this SECTION indirectly by causing Lessor to do so, provided the same is at
the sole cost and expense of Lessee and that Lessor is notified of Lessee's
desire so to commence such protest or contest at least fifteen (15) Business
Days prior to the date upon which Lessee intends to initiate such protest or
contest. So
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long as Lessee shall be prosecuting any contest or protest in accordance with
the terms of this SECTION 8.1, Lessee shall not be deemed to be in Default under
this Lease by reason of Lessee's failure to perform the obligation being
contested or protested. Lessor shall cooperate with Lessee in connection with
any such protest or contest, provided (i) all reasonable and documented
out-of-pocket expenses and costs incurred by Lessor in connection therewith
shall be borne by Lessee and (ii) Lessor shall not be required to execute any
document which would (A) materially adversely affect the fair market value or
utility of the Freezer Land or (B) subject Lessor or Agent to any liability
unless, in the circumstances described in clause (B) above, the applicable
Person is indemnified pursuant to and in accordance with SECTION 7 of the
Participation Agreement.
8.2 LESSOR'S JOINDER RIGHTS. Lessor may, at its sole cost and expense,
join with Lessee in making any application, petition or other pleading, retain
co-counsel, attend hearings, present evidence and arguments, and generally
participate in the conduct of any protest or contest under this SECTION 8 and in
connection therewith, Lessee shall notify Lessor of such contest or protest and,
upon written request by Lessor, shall make available to Lessor, at Lessor's cost
and expense, any non-privileged material in Lessee's possession relating to the
Freezer Land and any other facts Lessor may reasonably require in connection
therewith. Lessee shall not settle or compromise any contest or protest in which
Lessor may participate pursuant to this SECTION without the prior consent of
Lessor, which shall not be unreasonably withheld, unless the terms of such
settlement (a) expressly provide for the full and unconditional release of the
Lessor from any Claims relating to such protested or contested matter and (b)
will not result in a material adverse effect on the value, useful life or
continued use of the Freezer Land for any purposes intended.
SECTION 9. INSURANCE
9.1 INSURANCE POLICIES. Lessee shall, at its sole cost and expense,
obtain and maintain (or cause other parties, such as contractors, to obtain and
maintain) the following insurance policies:
(a) during the Term hereof, insurance on the Freezer Property against
loss or damage by fire and by the risks or causes covered by the broadest
form of "all risks" or comparable broad form coverage, including coverage
for damage caused by earthquakes and so-called boiler and machinery risks,
in amounts at all times sufficient to prevent Lessor or Lessee from
becoming a co-insurer under the terms of the applicable policies, but in
any event in an amount not less than 100% of the then Full Insurable Value
(as hereinafter defined) of the Freezer Property, as evidenced by an
appropriate replacement cost or stated amount endorsement to the insurance
policy;
(b) during the Term hereof, insurance on the Freezer Property against
loss or damage caused by earthquakes and/or earth movement in an amount as
determined by a qualified insurance broker consultant acceptable to Lessor
and Lessee;
(c) flood insurance on the Freezer Property from the date hereof in an
amount at least equal to the maximum limit of coverage available for the
Freezer Property under the National Flood Insurance Act of 1968 and the
Flood Disaster Protection Act of 1973,
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as the same may have been or may hereafter be amended or modified (and
any successor act thereto) if the Freezer Property is located in an area
identified by the U.S. Secretary of Housing and Urban Development as an
area having flood hazards and in which flood insurance has been made
available under the aforesaid legislation;
(d) during the Term hereof, commercial general liability insurance
written on an occurrence form insuring the Lessee as named insured and
naming Lessor and Agent as additional insureds and the Lessor as loss
payee, against any liability for (i) (A) bodily injury, death, property
damage (1) occurring on or about the Freezer Property or (2) relating to
the ownership, use or operation of any automobile or other vehicle used by
any Lessee or Construction Agent in connection with the Freezer Property
and (ii) breach of contract, with limits of liability not less than
$50,000,000 combined single limit;
(e) during the Term hereof, worker's compensation insurance and
employer's liability insurance in statutory limits, or otherwise in
compliance with statutory requirements with respect thereto, covering all
persons with respect to whom death, bodily injury or sickness claims could
be asserted against Lessee under any worker's compensation law, employer's
liability law or similar laws of the state in which the Freezer Property is
located that may, at any time or from time to time, be enacted;
(f) during the performance of any Alterations, broad form Builder's
All-Risk insurance in such amounts as Lessor and Agent shall reasonably
request;
(g) during the Term hereof, business interruption insurance in amounts
sufficient to compensate Lessee for the loss of income during a period of
not less than twelve (12) months, such amount of coverage being adjusted
annually to reflect the income payable during the succeeding twelve (12)
month period; and
(h) such other insurance on the Freezer Property and in such amounts as
may from time to time be reasonably required by Lessor and Agent against
other insurable hazards which at the time are commonly insured against in
Comparable Buildings.
The term "FULL INSURABLE VALUE" shall mean the actual replacement cost
of the Freezer Property (exclusive of the cost of noninsurable portions thereof,
such as excavation, foundations and footings). Any policies of insurance of the
character described in clauses (a), (b) and (d) above shall expressly provide
that any losses thereunder shall be adjusted with Lessor (or the Agent on behalf
of the Lessor) and Lessee. All losses payable under the policies of insurance
described in the preceding sentence shall be payable to Lessee and the loss
payees jointly subject to the terms of this Lease.
Builder's Risk Insurance shall be "All Risk" or the equivalent coverage
including theft, will insure all buildings, machinery, equipment, materials,
supplies, temporary structures and all other property of any nature on-site,
off-site, and while in transit which is to be used in fabrication, erection,
installation and completion of the project, and remain in effect until the
entire project has been completed and accepted by Lessor. Such Insurance shall
be provided on a replacement cost value basis and include foundations, other
underground property, tenant improvements and personal property when required
herein. If tenant improvements and personal
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property are not included in the above they may be insured separately by Lessor
provided coverage is acceptable to Agent. Builder's Risk insurance shall be on a
non-reporting, completed value form, and covering: soft costs (to the extent not
self-insured by Lessee in a manner reasonably acceptable to Agent), debris
removal expense including removal of pollutants, resulting loss and damage to
property due to faulty or defective workmanship or materials and/or error in
design or specification, loss while the property is in the care, custody, and
control of others to whom the property may be entrusted. The policy shall
provide that the Lessor can complete and occupy the premises without further
written consent from the insurer. The policy shall cover loss of income,
resulting from delay in occupancy and use of the premises due to loss. Such
insurance shall also cover continuing expenses not directly involved in the
direct cost of construction/renovation, including expense incurred upon money
borrowed to finance construction or repair, continuing interest on mortgage
loans, advertising, promotion, realty taxes and other assessments, the cost to
the insured of additional commissions incurred upon renegotiating leases, and
other expenses incurred as the result of property loss or destruction by the
insured peril. This coverage shall not contain any monthly limitation.
9.2 ADDITIONAL POLICY REQUIREMENTS. (a) The "all risk" property
insurance required to be obtained by Lessee under this SECTION 9 shall be
primary and not be concurrent in form or contributing with any other coverage
which Lessee or Lessor may carry. Such insurance shall be issued by insurance
companies legally qualified to issue such insurance in the jurisdiction in which
the Freezer Property is located and of recognized reputability rated A- XI or
better (or the then equivalent of such rating) by Best's Insurance Reports (or
any successor publication of comparable standing), BBB or better by Standard &
Poor's Rating Group and Ba3 by Xxxxx'x Investors Service, Inc. Such insurance
shall be provided pursuant to forms of insurance policies reasonably
satisfactory to Lessor. Neither the issuance of any insurance policy required
under this Lease, nor the minimum limits specified herein with respect to
Lessee's insurance coverage, shall be deemed to limit or restrict in any way
Lessee's liability arising under this Lease. The dollar amounts set forth in
SECTION 9.1(D) shall be increased from time to time during the term upon request
by Lessor to the extent such increase is consistent with commercial general
liability insurance then customarily required by landlords of Comparable
Buildings. With respect to the insurance required by SECTIONS 9.1(A) and (D)
that is provided by means of an insurance policy covering the Freezer Property
and other properties owned or occupied by Lessee on or before the date upon
which such insurance is required, Lessee shall deliver to Lessor (i) an original
certificate evidencing such insurance, (ii) an original endorsement to such
policy naming Lessor as loss payee or additional insured, as the case may be,
and (iii) a summary of those provisions of such policy applicable to the Freezer
Property certified by the issuer. With respect to each other insurance policy
required to be obtained by Lessee under this SECTION 9, on or before the date on
which such insurance coverage is required by SECTION 9.1, Lessee shall deliver
to Lessor satisfactory evidence of such insurance. Prior to the expiration of
any required policy Lessee shall provide to Lessor satisfactory evidence of
renewal or replacement of such insurance policy. Each insurance policy required
to be carried hereunder by or on behalf of Lessee shall (A) provide (and any
certificate evidencing the existence of each such insurance policy shall
certify) (i) that such insurance policy shall not be cancelled or modified
unless Lessor shall have received thirty (30) days' prior written notice of such
cancellation or modification, (ii) that any loss payable thereunder shall be
payable notwithstanding any act, omission or negligence of Lessee which might,
absent such agreement, result in a forfeiture of all or any portion of such
insurance payment, (iii) that the interests of the
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Lessor shall be insured regardless of any breach or violation by the Lessee of
any representations, warranties, conditions or declarations contained in such
policy and (B) contain such deductibles and retentions as shall be commercially
available and reasonably acceptable to Agent.
(b) If Lessee shall fail to pay any or all of the premiums due under
any of the foregoing policies or to deliver evidence of such policies as
required by this SECTION, Lessor, at its option, may (but shall not be obligated
to) procure, deliver and deposit the same or pay the premiums therefor, and the
amounts paid by Lessor shall constitute Additional Rent hereunder and shall be
repaid to Lessor by Lessee promptly, but in any case within ten (10) Business
Days, after rendition of a xxxx therefor by Lessor. No such payment by Lessor
shall be deemed a waiver of any default by Lessee hereunder nor shall it affect
any other right or remedy of Lessor by reason of such default.
(c) Lessee shall not violate or permit any occupant of the Freezer
Property, or any part thereof, to violate any of the material conditions or
provisions of any such policy, and Lessee shall perform and satisfy the
requirements of the insurers writing such policies.
(d) Upon written request by Lessor, Lessee shall furnish proof,
reasonably satisfactory to Lessor, of the payment (whether in full or by
periodic payment) of the premiums for all insurance policies at any time
required to be effected and maintained under this Lease.
(e) The insurance required to be provided by Lessee pursuant to this
SECTION 9 shall be primary and non-contributory as evidenced by the certificates
of insurance required to be delivered by Lessee pursuant to this SECTION 9.
(f) No approval by Lessor of any insurer shall be construed to be a
representation, certification or warranty of its solvency and no approval by
Lessor as to the amount, type or form of any insurance shall be construed to be
a representation, certification or warranty of its sufficiency.
(g) Lessee shall cause each insurer to include in each of Lessee's
insurance policies insuring against loss, damage or destruction of property by
fire or other insured casualty (each a "CASUALTY POLICY") and in the insurance
policy required by SECTION 9.1(D) a waiver of the insurer's right of subrogation
against Lessor and Agent and their respective employees, representatives, agents
and contractors and against any additional insureds, or, if such waiver shall be
unobtainable (i) an express agreement that such policy shall not be invalidated
if Lessee waives or has waived before the casualty the right of recovery against
any party responsible for a covered casualty or (ii) any other form of
permission for the release of such responsible party.
9.3 SYNTHETIC LEASE. Anything to the contrary provided herein
notwithstanding, prior to any Synthetic Termination Lessee shall be deemed to be
in compliance with the requirements of this SECTION 9 so long as Lessee complies
with its obligations under Section 9 of the Synthetic Lease and all such
insurance policies include the Freezer Land and Freezer.
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SECTION 10. DAMAGE, DESTRUCTION AND CONDEMNATION
10.1 DEFINITION OF CASUALTY. If during the Term, the Freezer Land or
any part thereof shall be destroyed or damaged in whole or in part, by any cause
whatsoever and the cost of restoring the Freezer Land exceeds five percent (5%)
of the fair market value of the Freezer Land or shall be taken for any public or
quasi-public use, under any statute, or by right of eminent domain and either
the cost to restore the Freezer Land or the resulting diminution in the fair
market value of the Freezer Land exceeds five percent (5%) of the fair market
value of the Freezer Land as of the date hereof (any of the foregoing, a
"CASUALTY"), Lessee shall give Lessor prompt notice of such Casualty. For
purposes of this SECTION, the term "SUBSTANTIAL CASUALTY" shall mean a Casualty
the extent of which is such that (i) the Freezer Land, in the good faith opinion
of Lessee, is rendered unsuitable for restoration or continued use or (ii) the
nature of such Casualty is such that (A) in the judgment of the Independent
Engineer, the Freezer Land cannot be restored with reasonable diligence in a
time period ending no later than the earlier to occur of (1) six (6) months
after the date of such Casualty and (2) six (6) months prior to the Expiration
Date or (B) the cost of the Restoration, as determined by the Independent
Engineer, would exceed an amount equal to twenty five percent (25%) of the fair
market value of the Freezer Land.
10.2 CASUALTY PROCEEDS. Lessee shall be entitled to any award or
compensation or insurance payment or other proceeds to which Lessee may become
entitled by reason of its interest in the Freezer Land or any part thereof being
affected by a Casualty (collectively, "CASUALTY PROCEEDS").
10.3 TERMINATION NOTICE; LESSOR TERMINATION NOTICE. (a) If a
Substantial Casualty occurs, then Lessee shall have the option to terminate this
Lease as of the date set forth in a notice delivered by Lessee to Lessor not
later than thirty (30) days after the date of such Substantial Casualty (the
"TERMINATION NOTICE"), which date shall be the Rental Payment Date first
occurring at least thirty (30) days after the occurrence of any such Substantial
Casualty. Lessee shall continue to pay Basic Rent from and including the date of
such Casualty to and including the applicable termination date (the "TERMINATION
DATE"), which Basic Rent shall be apportioned as of the Termination Date in the
event such Termination Date does not occur on a Rental Payment Date. If Lessor
elects to terminate this Lease pursuant to this SECTION 10.3, Lessee must, at
its sole cost and expense, demolish any remaining portion of Freezer
Improvements located on the Freezer Land and return the land to a safe
condition.
(b) Anything to the contrary provided in subsection (a) above
notwithstanding, in the event of a termination of the Synthetic Lease (as it
relates to the HQ Property only) as a result of a substantial casualty to the HQ
Property, simultaneously with the payment by Lessee of the applicable
Termination Value for the HQ Property under the Synthetic Lease and conveyance
of the HQ Property to Lessee, Lessor shall convey all of its right, title and
interest in, to and under the Freezer Lease to Lessee by quit claim deed without
warranty or covenant other than customary representations with respect to its
valid existence and authority to execute and deliver the deeds of conveyance
(but free of any Lessor Liens) for no additional consideration.
10.4 CASUALTY OTHER THAN A SUBSTANTIAL CASUALTY. If there shall occur a
Casualty which is not a Substantial Casualty, this Lease shall continue in full
force and effect without any reduction or abatement in Basic Rent hereunder and
Lessee shall promptly (i) file all required documents and applications with its
insurers, and make such claims with its insurers, as
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shall be necessary or advisable, (ii) take such steps as shall be necessary or
advisable to preserve the undamaged portion of the Freezer Land and (iii) at its
own risk, cost and expense, and whether or not the Casualty Proceeds, if any,
shall be sufficient for the purpose, promptly restore, repair, replace or
rebuild the same to its value, condition and character immediately prior to such
damage or destruction. Such restoration, repair, replacement or rebuilding shall
be commenced and prosecuted to completion with due diligence and in a
workmanlike manner. Lessor shall in no event be called upon to repair, replace,
restore or rebuild any portion of the Freezer Land, nor to pay any of the costs
or expenses thereof. All work shall be performed under the supervision of an
architect or engineer selected by Lessee and approved by Lessor, which approval
shall not unreasonably be withheld or delayed. Such work shall not be undertaken
until (1) complete and detailed plans and specifications have been approved in
writing by Lessor, which approval shall not be withheld or delayed; provided
that (x) the capacity and useful life of the Freezer Land, shall not, after such
restoration, be less than the capacity and useful life prior to such Casualty;
(y) the fair market value of the Freezer Land shall not, after such restoration,
be less than its fair market value prior to such Casualty in Lessor's reasonable
judgment; and (z) if the estimated cost to complete such restoration exceeds the
amount of the Casualty Proceeds, Lessor is, in its sole judgment, satisfied that
Lessee shall have sufficient funds available to pay such excess, and (2) Lessee
shall have obtained any necessary permits and approvals from all governmental
departments, bureaus and agencies having jurisdiction. Lessor shall cooperate
with Lessee as necessary in obtaining such permits and approvals; provided that
Lessee shall reimburse Lessor for any reasonable and documented costs and
expenses incurred in connection with such cooperation.
10.5 EVENT OF DEFAULT. If an Event of Default shall have occurred and
be continuing, any Casualty Proceeds payable to or for the account of, or to be
retained by, Lessee pursuant to this SECTION 10 shall be paid to Lessor as
security for the obligations of Lessee under this Lease, and, at such time
thereafter as either no such Event of Default shall be continuing or Lessee
shall have validly exercised its option to purchase the Freezer Land pursuant to
SECTION 30, such Casualty Proceeds shall be paid promptly to Lessee, or applied
to the purchase price payable by Lessee, as applicable.
SECTION 11. LESSOR MAY PERFORM LESSEE'S OBLIGATIONS
If Lessee shall fail to observe, perform or comply with any term,
covenant or condition contained herein to be observed, performed or complied
with on Lessee's part, including, without limitation, any obligation to pay any
Imposition required by SECTION 4 hereof or any other amount required to be paid
by Lessee to any third party pursuant to the terms hereof Lessor, without being
under any obligation to do so and without thereby waiving such failure, may (i)
upon expiration of the applicable grace period with respect to such default
provided in SECTION 12 hereof, or (ii) in the case of any failure resulting in
imminent threat to human health or the Freezer Land or a reasonable likelihood
of criminal liability on the part of any Indemnified Person, upon such prior
notice as shall be reasonable under the circumstances, perform the same (and
shall have access to the Freezer Property, if necessary, to do so), including,
without limitation, the making of repairs necessary to cure such failure for the
account and at the expense of Lessee. If Lessor should incur any cost or expense
whatsoever, including, without limitation, reasonable attorneys' fees and
disbursements, in (A) performing any of Lessee's obligations in accordance with
the provisions of this SECTION 11, (B) instituting or prosecuting any action or
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proceeding in connection with Lessor's performance of any of Lessee's
obligations in accordance with the provisions of this SECTION 11 or (C)
defending any action or proceeding instituted by reason of any default of
Lessee, Lessee shall reimburse Lessor, on demand, for the amount of such
expense. No such payment or expenditure by Lessor shall be deemed a waiver of
any default by Lessee hereunder nor shall it affect any other right or remedy of
Lessor by reason of such default.
SECTION 12. DEFAULT OF LESSEE
12.1 EVENT OF DEFAULT DEFINED. This Lease and the term and estate
hereby granted are subject to the limitation that if any one or more of the
following events (each, an "EVENT OF DEFAULT") shall occur:
(a) a Lease Event of Default shall occur under the Synthetic Lease (if
the Synthetic Lease shall then be in effect); or
(b) Lessee shall fail to pay any installment of Basic Rent when due; or
(c) Lessee shall fail to pay when due any Additional Rent and other
sums then due and payable hereunder relating to the Freezer Property, and
such failure shall continue thirty (30) days after notice by Lessor to
Lessee of such default; or
(d) Lessee shall fail to maintain insurance in accordance with
provisions of this Lease; or
(e) Lessee shall fail to observe, perform or comply with any term,
covenant or condition of this Lease on Lessee's part to be observed,
performed or complied with (other than the covenants described in
SUBSECTIONS (A) through (C) of this SECTION 12.1) and (1) such failure
shall not be capable of cure or (2) Lessee shall fail to remedy such
default within ninety (90) days (or such longer period as is reasonably
necessary to remedy the same so long as Lessee diligently pursues the same)
after the earlier of (x) the date on which a Responsible Officer of Lessee
becomes aware of such failure and (y) notice by Lessor to Lessee of such
default; or
(f) Intentionally Omitted.
(g) Freezer Property or any portion thereof shall become subject to any
Lien (other than a Lessor Lien) not expressly permitted by the terms of the
Operative Documents and such Lien is not removed by Lessee (by bonding or
otherwise) within sixty (60) days after Lessee receives notice or a
Responsible Officer of Lessee obtains actual knowledge of the existence of
such Lien; or
(h) Lessee is generally not paying its debts as they become due or
admits in writing its inability to pay its debts generally or makes a
general assignment for the benefit of creditors; or any proceeding is
instituted by or against Lessee seeking an order for relief under the
United States Bankruptcy Code or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts or the appointment of a receiver, trustee, custodian or
other similar official for it or
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for any substantial part of its property under any law relating to
bankruptcy, insolvency, liquidation or reorganization or relief of debtors
and either (A) any such relief in any such proceeding is sought or
consented to by it or an order for any such relief is entered against it,
or (B) any such proceeding instituted against remains undismissed and
unstayed for a period of sixty (60) days; or Lessee takes any corporate
action to authorize any of the actions set forth above in this SECTION
12.1(H); or
(i) Lessee shall assign, mortgage, hypothecate, sublet or otherwise
transfer or encumber this Lease or any portion of the Freezer Property
other than in accordance with the provisions of SECTION 13 hereof,
and any of said events is continuing, Lessor, at its option, may (but shall not
be obligated to) terminate this Lease and the term and estate hereby granted
upon notice to Lessee, and, in the event such notice is given, this Lease and
the term and estate hereby granted shall terminate upon the giving of such
notice with the same effect as if that day were the Expiration Date, and Lessee
shall then quit and surrender the Freezer Land to Lessor but Lessee shall remain
liable as herein set forth.
12.2 REMEDIES. (a) If an Event of Default shall have occurred and shall
have continued after ten (10) days notice to Lessee:
(i) Lessor may take all steps to protect and enforce the rights of the
Lessor or obligations of Lessee hereunder, whether by action, suit or
proceeding at law or in equity (for the specific performance of any
covenant, condition or agreement contained in this Lease, or in and for the
execution of any power herein granted or for any foreclosure, or the
enforcement or any other appropriate legal or equitable remedy) or
otherwise as the Lessor shall deem necessary or advisable;
(ii) Lessee shall pay to Lessor all Basic Rent and Additional Rent to
the date upon which this Lease and the Term shall have terminated or to the
date of re-entry upon the Freezer Land by Lessor, as the case may be;
(iii) Lessor shall be entitled to retain all monies, if any, paid by
Lessee to Lessor pursuant to the Lease, whether as Basic Rent, Additional
Rent or otherwise, but such monies shall be credited by Lessor against any
Basic Rent or Additional Rent due at the time of the occurrence of the
Event of Default or the time of any termination or re-entry or, at Lessor's
option, against any damages payable by Lessee;
(iv) Lessor's agents and representatives may immediately re-enter the
Freezer Land or any part thereof, either by summary proceedings or by any
other applicable action or proceeding, or by force or otherwise (without
being liable to indictment, prosecution or damages therefor), and may
repossess the Freezer Land and dispossess Lessee and any other persons and
entities from the Freezer Land or dispossess some and not others or
dispossess none and may remove any and all of Lessee's property and
effects, including Freezer Improvements from the Freezer Land and in no
event shall re-entry be deemed an acceptance of surrender of this Lease or
an election by Lessor of any particular remedy or of a claim for damages
against Lessee. Upon any such re-entry,
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Lessor, at its option, may relet the whole or any part or parts of the
Freezer Land from time to time, for the account of Lessee, to such tenant
or tenants, for such term or terms ending before, on or after the scheduled
expiration of the Term, at such rental or rentals and upon such other
conditions, which may include concessions and free rent periods, as Lessor,
in its sole discretion, may determine. Lessor shall not be required to
accept any tenant offered by Lessee or to observe any instruction given by
Lessee about such reletting. Lessor shall have no obligation to relet the
Freezer Land or any part thereof and shall in no event be liable for
refusal or failure to relet the Freezer Land or any part thereof, or, in
the event of any such reletting, for refusal or failure to collect any rent
due upon any such reletting, and no such refusal or failure shall operate
to relieve Lessee of any liability under this Lease or otherwise to affect
any such liability. Lessor, at Lessor's option, may make such Alterations
and other physical changes in and to the Freezer Land as Lessor, in its
sole discretion, considers advisable or necessary in connection with any
such reletting or proposed reletting without relieving Lessee of any
liability under this Lease or otherwise affecting any such liability,
provided that Lessee shall not be liable for the cost of any such
Alterations or other physical changes unless Lessee is otherwise liable
therefor under the other terms, covenants and conditions contained in this
Lease. In no event shall any one or more of the following actions by Lessor
constitute a termination of this Lease: (A) maintenance and preservation of
the Freezer Land; (B) efforts to relet the Freezer Land; (C) appointment of
a receiver in order to protect Lessor's interest hereunder; (D) consent to
any subletting of the Freezer Land or assignment of this Lease by Lessee,
whether pursuant to provisions hereof concerning subletting and assignments
or otherwise; or (E) any other action by Lessor's agents intended to
mitigate the adverse effects from any breach of this Lease by Lessee or
otherwise permitted by law;
(v) Lessee shall pay to Lessor, in monthly installments, on the days
specified in this Lease for payment of installments of Basic Rent, the
difference between (a) the Fixed Rent and Additional Rent for the period
which otherwise would have constituted the unexpired portion of the Term
(assuming the Additional Rent for each year thereof to be the same as was
payable for the year immediately preceding such termination or re-entry),
and (b) the net amount, if any, of rents collected under any reletting
effected pursuant to the provisions of this Lease for any part of such
period (after first deducting from such rents all expenses incurred by
Landlord in connection with the termination of this Lease, Landlord's
re-entry upon the Freezer Land and such reletting, including repossession
costs, brokerage commissions, attorneys' fees and disbursements, and
alteration costs) (the "DEFICIENCY"); it being understood that Lessor shall
be entitled to recover the Deficiency from Lessee each month as the same
shall arise, and no suit to collect the amount of the Deficiency for any
month, shall prejudice Lessor's right to collect the Deficiency for any
subsequent month by a similar proceeding;
(vi) Whether or not Lessor shall have collected any monthly Deficiency,
Lessee shall pay to Lessor, on demand, in lieu of any further Deficiency
and as liquidated and agreed final damages, a sum equal to the amount by
which the Rent for the period which otherwise would have constituted the
unexpired portion of the term (assuming Additional Rent during such period
to be the same as had been payable for the year immediately preceding such
termination or re-entry, increased in each succeeding year by
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4% (on a compounded basis)) exceeds the then fair and reasonable rental
value of the Freezer Land, for the same period (with both amounts being
discounted to present value at a rate of interest equal to 2% below the
then Base Rate) less the aggregate amount of Deficiencies theretofore
collected by Lessor pursuant to the provisions of Section 12.2(a)(v) for
the same period. If, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the Freezer Land, or any part
thereof, shall have been relet by Lessor for the period which otherwise
would have constituted the unexpired portion of the Term, or any part
thereof, the amount of rent reserved upon such reletting shall be deemed,
prima facie, to be the fair and reasonable rental value for the part or the
whole of the Freezer Land so relet during the term of the reletting;
(vii) Subject to SECTION 13.2(C) hereof, Lessor shall be entitled to
terminate any and all subleases, licenses, concessions or other consensual
arrangements for possession entered into by Lessee and affecting the
Freezer Land or may, in Lessor's sole discretion, succeed to Lessee's
interest in such subleases, licenses, concessions or arrangements. In the
event of Lessor's election to succeed to Lessee's interest in any such
subleases, licenses, concessions or arrangements, Lessee shall, as of the
date of notice by Lessor of such election, have no further right or
interest in the rent or other consideration receivable thereunder; and
(viii) In addition to the other sums that Lessor shall be entitled to
recover under this SECTION, Lessor shall be entitled to prove and recover
from Lessee as damages an amount equal to the cost of performing all
obligations on Lessee's part to be performed under this Lease during the
Term which obligations have not been previously discharged by Lessee,
including, without limitation, the cost of placing the Freezer Land in the
condition in which Lessee has agreed to surrender it to Lessor on the
expiration or termination of this Lease.
(b) In the event of any breach or threatened breach by Lessee or any
person or entity claiming through or under Lessee of any of the terms, covenants
or conditions contained in this Lease, Lessor shall be entitled to enjoin such
breach or threatened breach and shall have the right to invoke any right and
remedy allowed at law or in equity or by statute or otherwise as if re-entry,
summary proceedings or other specific remedies were not provided for in this
Lease.
(c) Lessee, on its own behalf and on behalf of all persons and entities
claiming through or under Lessee, including, but not limited to, all creditors,
does hereby irrevocably waive any and all rights and privileges, so far as is
permitted by law, which Lessee and all such persons and entities might otherwise
have under any Applicable Laws, to (i) the service of any notice of intention to
re-enter or to institute legal proceedings to that end, (ii) redeem the Freezer
Land, (iii) re-enter or repossess the Freezer Land, or (iv) restore the
operation of this Lease after Lessee shall have been dispossessed by a judgment
or by warrant of any court or judge, or after any re-entry by Lessor, or after
any expiration or termination of this Lease and the Term, whether such
dispossession, re-entry, expiration or termination shall be by operation of law
or pursuant to the provisions of this Lease. The words "re-enter," "re-entry"
and "re-entered" as used in this Lease shall not be deemed to be restricted to
their technical legal meanings.
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(d) In the event suit shall be brought by Lessor because of the breach
of any term, covenant or condition herein contained on the part of Lessee to be
observed, performed or complied with, then, if Lessor is awarded any affirmative
relief in such suit, Lessor may recover from Lessee all expenses incurred in
connection therewith, including, without limitation, reasonable attorneys' fees
and disbursements.
(e) To the extent that any Event of Default shall have been fully and
completely cured prior to the exercise of any remedies by Lessor under this
Lease or Applicable Law, such Event of Default shall cease to be an "Event of
Default" for all purposes under the Operative Documents, including, without
limitation, for purposes of the exercise of remedies or the denial or
conditioning of the rights of Lessee hereunder.
(f) If, following the occurrence of an Event of Default under the
Synthetic Lease, Lessee pays Termination Value for each of the Properties and
acquires same in accordance with the terms of the Synthetic Lease, then
simultaneously with the conveyance by Lessor of the HQ Property to the Lessee
pursuant to the Synthetic Lease, Lessor shall convey the Freezer Land to Lessee
by quitclaim deed without representation, recourse or warranty other than
customary representations with respect to its valid existence and authority to
execute and deliver the deeds of conveyance (but free of any Lessor Liens), for
no additional consideration.
12.3 WAIVER OF TRIAL BY JURY. LESSOR AND LESSEE SHALL AND HEREBY DO
IRREVOCABLY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, BY
CONSOLIDATION OF ACTIONS OR OTHERWISE, BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER IN ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LEASE OR THE INTERPRETATION THEREOF, THE RELATIONSHIP OF LESSOR AND LESSEE,
LESSEE'S USE OR OCCUPANCY OF THE FREEZER PROPERTY, ANY CLAIM OF INJURY OR
DAMAGE, AND ANY EMERGENCY STATUTORY OR ANY OTHER STATUTORY REMEDY. LESSEE SHALL
NOT INTERPOSE ANY COUNTERCLAIM OR COUNTERCLAIMS, BY CONSOLIDATION OF ACTIONS OR
OTHERWISE, OR RAISE THE EQUITABLE DEFENSE OF RECOUPMENT OR SETOFF IN A SUMMARY
PROCEEDING OR IN ANY ACTION BASED ON NON-PAYMENT BY LESSEE OF BASIC RENT OR
ADDITIONAL RENT, UNLESS THE FAILURE TO INTERPOSE SUCH COUNTERCLAIM OR
COUNTERCLAIMS IN SUCH PROCEEDINGS OR ACTION WOULD CONSTITUTE A WAIVER OF SUCH
COUNTERCLAIM OR COUNTERCLAIMS OR WOULD MATERIALLY PREJUDICE LESSEE'S RIGHT TO
PURSUE SUCH COUNTERCLAIM OR COUNTERCLAIMS IN A SEPARATE ACTION OR PROCEEDING.
NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL BE DEEMED TO
PROHIBIT LESSEE FROM PURSUING ANY CLAIM THAT LESSEE MAY HAVE AGAINST LESSOR IN A
SEPARATE SUIT OR PROCEEDING, PROVIDED THAT LESSEE SHALL NOT MAKE ANY MOTION TO
CONSOLIDATE SUCH SEPARATE SUIT OR PROCEEDING WITH ANY SUMMARY PROCEEDING OR
OTHER ACTION DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE. THE PROVISIONS OF
THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS LEASE.
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12.4 REMEDIES CUMULATIVE. The rights and remedies created hereby are
cumulative, and no reference to nor exercise of any specific right or remedy by
Lessor shall prejudice or preclude Lessor from exercising or invoking any other
remedy in respect thereof, whether allowed at law or in equity or expressly
provided for herein or the other Operative Documents.
12.5 NO SUBSEQUENT WAIVER. No waiver by Lessor or Lessee of the breach
of any covenant, agreement, obligation or condition of this Lease shall be
construed to be a waiver of any future breach of the same or any other covenant,
agreement, obligation or condition hereof.
SECTION 13. ASSIGNMENT, SUBLETTING AND MORTGAGING
13.1 ASSIGNMENT. (a) Neither this Lease nor the leasehold created
hereby shall be assigned, mortgaged, hypothecated or otherwise transferred or
encumbered by Lessee, by operation of law or otherwise without the prior written
consent of Lessor, which consent may be withheld by Lessor in its sole
discretion; provided that Lessee may assign the Lease to any Affiliate of
Lessee. Any attempted assignment, mortgage, hypothecation or other transfer or
encumbrance or subletting in violation of this SECTION shall be null and void
and without effect and shall not affect any of Lessor's rights or remedies
hereunder.
(b) For purposes of this SECTION 13, the following events shall be
deemed an assignment of this Lease: (i) the issuance of equity interests in
Lessee (whether stock or partnership interest or otherwise) to any person or
group of related persons, in a single transaction or a series of related
transactions, such that, following such issuance, such person or group shall
have Control of Lessee; or (ii) a transfer of Control of Lessee in a single
transaction or a series of related transactions, except that the transfer of the
outstanding capital stock of Lessee (by persons or parties other than "insiders"
within the meaning of the Securities Exchange Act of 1934, as amended) through
the "over-the-counter" market or any recognized national securities exchange
shall not be included in the determination of whether Control has been
transferred.
13.2 SUBLETTING. (a) Lessee shall not sublease any portion of the
Freezer Land without Lessor's prior consent, which consent may be withheld by
Lessor in its sole discretion; provided, however, that Lessee may sublet any
portion of the premises to an Affiliate of Lessee. The term of any such sublease
(including any renewal or extension options contained in such sublease) must end
no later than one day prior to the expiration of the Term. Lessee shall deliver
a conformed copy of any proposed sublease to the Lessor and Agent within thirty
(30) days after the effective date of such sublease.
(b) Each sublease entered into by Lessee shall provide that, from and
after the termination of this Lease or re-entry by Lessor or other succession by
Lessor to Lessee's estate in the Freezer Land, subtenant shall waive any right
to surrender possession or to terminate the sublease and, at Lessor's election,
shall be bound to Lessor for the balance of the term of the sublease and shall
attorn to and recognize Lessor, as its landlord, under all of the then executory
terms of the sublease, except that Lessor shall not (i) be liable for any
previous act, omission or negligence of Lessee under the sublease, (ii) be
subject to any counterclaim, defense or offset not
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expressly provided for in the sublease theretofore accruing to subtenant against
Lessee, or (iii) be obligated to perform any repairs or work in the Freezer
Land. Subtenant shall execute and deliver such instruments as Lessor may
reasonably request to evidence and confirm such attornment.
(c) Each sublease (i) shall provide that it is, and at all times shall
remain, subject and subordinate to this Lease, to all of the provisions,
covenants, agreements, terms and conditions hereof and to any matters to which
this Lease is subject and subordinate and (ii) shall include an agreement by the
subtenant, enforceable directly by Lessor, to confirm such subordination in
writing at the request of Lessor. At Lessee's request, Lessor shall execute and
deliver a non-disturbance agreement in form and substance reasonably acceptable
to Lessor, provided that Lessor, in its sole discretion, determines that the
terms of such sublease and the nature, creditworthiness and character of the
proposed subtenant are such that Lessor would, in the absence of this Lease,
enter into a direct lease with such subtenant for such premises and on such
terms.
13.3 CONSENT; EFFECT OF ASSIGNMENT OR SUBLETTING. (a) The consent by
Lessor to an assignment or to a subletting (if applicable) shall not relieve
Lessee from obtaining the express consent of Lessor to any further assignment or
subletting (if applicable).
(b) Nothing contained herein or in any consent that may be granted by
Lessor to any assignment or subletting (if applicable) shall be construed to
modify, waive, impair or affect any of the provisions, covenants, agreements,
terms or conditions of this Lease or to relieve Lessee of any liability or
obligation imposed upon it hereunder, notwithstanding any assignment of its
interest hereunder or any subletting of all or any portion of the Freezer Land.
(c) If this Lease be assigned, or if the Freezer Land or any part
thereof be sublet or occupied by any person or entity other than Lessee, whether
or not in accordance with the terms, covenants and conditions contained in this
Lease, Lessor may, after the occurrence of any Event of Default, collect rent
from the assignee, subtenant or occupant, and apply the net amount collected to
the rent herein reserved, but no assignment, subletting, occupancy or collection
shall be deemed a waiver of the provisions hereof (including, without
limitation, a waiver of any violation of the provisions of this SECTION 13), the
acceptance of the assignee, subtenant or occupant as tenant, or a release of
Lessee from the further performance by Lessee of any of the terms, covenants or
conditions on the part of Lessee herein contained.
SECTION 14. ACCESS TO THE FREEZER LAND
14.1 LESSOR'S RIGHT TO INSPECT.Lessee shall permit inspections of the
Freezer Land by Lessor and Agent, their respective agents and representatives,
and by or on behalf of any existing and prospective mortgagees of the Freezer
Land, prospective purchasers of the Freezer Land and any existing or prospective
lessor under any underlying lease of the Freezer Land (collectively referred to
herein as the "INVITEES"), at any time during the Term and at Lessee's sole cost
and expense if an Event of Default shall occur and be continuing, and shall
permit the Invitees and their respective agents and representatives access to
(i) ascertain the condition of the Freezer Land or whether Lessee is observing,
performing and complying with Lessee's obligations hereunder, or (ii) make such
repairs required hereunder if permitted
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pursuant to SECTION 11 hereof. Except for access during periods when Lessor or
Agent has reason to believe that conditions at the Freezer Land are such that
there is an imminent threat to human health or the Freezer Land or a reasonable
likelihood such conditions could result in criminal liability on the part of any
Indemnified Person, the rights of access contained in this Lease shall be
exercisable at reasonable times, at reasonable hours and, in all cases, on
reasonable prior notice. Unless and until Lessee shall have exercised its option
to purchase the Freezer Land pursuant to SECTION 30, during the one (1) year
period immediately preceding the scheduled expiration of the Term, Lessee shall
permit inspection of the Freezer Land at reasonable times, at reasonable hours,
upon reasonable notice and for reasonable periods by or on behalf of prospective
tenants. The provisions contained in this SECTION 14 are not intended to create
or increase, and are not to be construed as creating or increasing, any
obligations on Lessor's part hereunder.
14.2 LESSEE'S RIGHTS TO ACCESS. Lessee shall have rights of ingress and
egress ("RIGHTS OF ACCESS") to and from Freezer Land over HQ Property until
expiration or earlier termination of this Lease, provided however, that upon
expiration or earlier termination of the Synthetic Lease, Lessor may impose such
restrictions on Lessee's Rights of Access as Lessor reasonably determines.
SECTION 15. ALTERATIONS
15.1 APPROVAL. Lessee shall not make or allow any alterations,
additional installations, substitutions, improvements and decorations
(collectively referred to herein as "ALTERATIONS") in, on or to the Freezer Land
without the prior approval of Lessor if such Alteration or Alterations would
adversely affect the value, utility or useful life of the Freezer Land or the
remainder of the HQ Improvements. All Alterations undertaken by Lessee shall be
performed at Lessee's sole cost and expense and Lessor shall have no obligation
hereunder to reimburse Lessee for any portion of the costs thereof.
15.2 CONDITIONS. (a) Lessee's rights to make Alterations to the Freezer
Land shall be further subject to the following terms, covenants and conditions:
(i) All Alterations (excluding, however, Alterations that are solely
comprised of partitions, floor covering, fixtures or other personal
property which can be removed from the Freezer Land pursuant to SECTION 25
hereof ("REMOVABLE PROPERTY")) shall be of a standard and quality at least
equal to the standard and quality of the Freezer Land as of the date of
this Lease.
(ii) At all times all bills for supplies, materials, labor and services
in connection with the Alterations shall have been paid, provided for (by
hold-back or another method reasonably acceptable to Lessor) or bonded (by
a surety company bond issued by a company and in form, substance and amount
reasonably acceptable to Lessor), and no vendor's, mechanic's, laborer's or
materialmen's statutory or similar lien upon the Freezer Land, or any
portion thereof, shall have been filed based upon such supplies, materials,
labor or services unless Lessee is contesting such lien in accordance with
SECTION 8 hereof.
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(iii) The Alterations will not result in a violation of any certificate
of occupancy applicable to the Freezer Property or any part thereof or
result in, or require, any change in any such certificate of occupancy so
that any portion of the Freezer Property may not be used for the uses
thereof permitted in SECTION 3 hereof.
(iv) In performing the work involved in making the Alterations, Lessee
shall be bound by and observe all of the terms, conditions and covenants
contained in this SECTION 15.
(v) Before proceeding with any Alteration the cost of which exceeds
$150,000, Lessee shall submit to Lessor a reasonably detailed description
of the work to be done and a certification that such Alteration will not
materially adversely affect the value, utility or useful life of the
Freezer Land. Lessee shall not be permitted to install and make part of the
Freezer Land any materials, fixtures or articles, including Freezer
Improvements, which are subject to Liens, conditional sales contracts,
chattel mortgages or security interests (as such term is defined in the
Uniform Commercial Code as in effect in the State in which the Freezer Land
is located.
(vi) Lessee shall maintain a complete set of "as built" structural,
mechanical and similar plans and specifications with respect to any
Alterations which would customarily be reflected on "as built" plans in
accordance with good construction practice and shall promptly deliver a
copy thereof to Lessor as soon as is practicable after Lessor's request.
The obligations of Lessee under this SECTION 15.2(A)(VI) shall survive the
expiration or termination of this Lease.
(b) All Alterations shall at all times comply with all Applicable Laws.
Lessee, at its expense, shall (i) obtain (and Lessor shall cooperate with
Lessee, at Lessee's cost, in so obtaining) all necessary governmental permits
and certificate for the commencement and prosecution of the Alterations and for
final approval thereof upon completion, (ii) deliver copies thereof to Lessor,
and (iii) cause the Alterations to be performed in material compliance therewith
and in material compliance with all applicable requirements of the Operative
Documents, and in a good and first-class workmanlike manner, using materials and
equipment at least equal in quality and standard to the existing improvements on
the Freezer Land (except with respect to Alterations affecting only Removable
Property).
(c) Subject to SECTION 8 hereof, Lessee, at its expense, and with
diligence and dispatch, shall procure the cancellation or discharge of all
notices of violation arising from or otherwise connected with Alterations which
shall be issued by public authority having or asserting jurisdiction.
(d) If, during the last six (6) months of the Term, Lessee shall have
removed all or substantially all of its property from the Freezer Land, unless
Lessee shall have theretofore exercised its right to purchase the Freezer Land
pursuant to SECTION 30 hereof, Lessor may thereafter enter and alter, renovate
and redecorate the Freezer Land, without elimination, diminution or abatement of
Basic Rent or Additional Rent or incurring liability to Lessee for any
compensation. Lessor shall give Lessee at least fifteen (15) Business Days'
notice prior to commencing any such alteration, renovation or redecoration. From
and after the date that Lessor
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commences any such alteration, renovation or redecoration of the Freezer Land,
Lessee shall no longer be obligated to observe, perform or comply with any term,
covenant or condition hereof on Lessee's part to be observed, performed or
complied with hereunder (other than Lessee's obligation to pay Basic Rent and
Additional Rent) to the extent that such obligations arise or accrue after the
date that Lessor commences any such alteration, renovation or redecoration of
the Freezer Land. Unless Lessor shall have given Lessee the aforesaid notice,
Lessor shall not be entitled to exercise its right under this SECTION 15.2(E).
Without limiting the generality of the foregoing, no entry on the Freezer Land
by Lessor pursuant to SECTION 11 or 12 hereof shall be deemed to be an exercise
by Lessor of its right under this SECTION 15.2(E).
(e) If any Alteration will have an impact on the remainder of the HQ
Improvements, Lessee shall provide Lessor with full plans for such Alteration
and Lessor shall have the right, in its reasonable discretion, to consent to
same.
SECTION 16. LIENS; ZONING
16.1 LIENS. (a) Lessee shall not, without the prior written consent of
Lessor, create, place or permit to be created or placed or allow to remain, and,
subject to SECTION 8.1, shall take such action, by bonding, deposit or payment,
to remove or satisfy of record within sixty (60) days of the placing thereof,
any Lien, voluntary or involuntary against or covering the Freezer Property,
whether or not subordinate to this Lease, other than (i) Permitted Encumbrances,
(ii) Lessor Liens and (iii) inchoate mechanics' or materialmen's liens in
respect of amounts not yet due and payable.
(b) Notice is hereby given that Lessor shall not be liable for any
services, labor, supplies or materials furnished or to be furnished to Lessee
upon credit, and that no vendor's, mechanic's, laborer's or materialman's
statutory or similar lien for any such services, labor, supplies or materials
shall attach to or affect the reversionary or other estate or interest of Lessor
in and to the Freezer Land. Whenever and as often as any vendor's, mechanic's,
laborer's or materialmen's statutory or similar lien shall have been filed
against the Freezer Property based upon any act or interest of Lessee or of
anyone claiming through Lessee, or if any conditional xxxx of sale or chattel
mortgage shall have been filed for or affecting any materials, supplies,
machinery or fixtures used in the construction, repair or operation thereof or
annexed thereto by Lessee or its successors in interest, Lessee shall forthwith
take such action, by bonding, deposit or payments, as will remove or satisfy the
lien, conditional xxxx of sale or chattel mortgage of record.
(c) Other than Liens created pursuant to the Operative Documents in
connection with the Synthetic Lease, Lessor shall not, without the prior written
consent of Lessee, create, place or permit to be created or placed or allow to
remain, any Lessor Liens voluntary or involuntary against or covering the
Freezer Land.
16.2 ZONING. Lessee will not, without the consent of Lessor, which
consent Lessor may withhold in its sole and absolute discretion, (i) initiate or
support any zoning reclassification of the Freezer Property or any part thereof,
seek any variance under existing zoning ordinances applicable to the Freezer
Property or any part thereof or use or permit the use of the Freezer Property or
any part thereof in a manner which would result in such use becoming
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a non-conforming use under applicable zoning ordinances, (ii) impose any
restrictive covenants or encumbrances upon the Freezer Property or any part
thereof, execute or file any subdivision plat affecting the Freezer Land or any
part thereof or consent to the annexation of the Freezer Land or any part
thereof to any municipality or (iii) permit or suffer the Freezer Property or
any part thereof to be used by the public or any person or entity in such manner
as might make possible a claim of adverse usage or possession or of any implied
dedication or easement.
SECTION 17. SUBORDINATION AND ATTORNMENT
17.1 SUBORDINATION AND ATTORNMENT. (a) This Lease and all rights of
Lessee hereunder are and shall be subject and subordinate in all respects to the
lien of the Mortgage.
(b) Lessor hereby notifies Lessee that this Lease may not be cancelled
or surrendered, or modified or amended so as to reduce the Basic Rent or any
Additional Rent, shorten the Term, or adversely affect in any other respect to
any material extent the rights of Lessor hereunder without the prior consent of
Agent in each instance, except that said consent shall not be required to the
institution or prosecution of any action or proceedings against Lessee by reason
of a default on the part of Lessee under the terms of this Lease.
17.2 PROVISIONS SELF-OPERATIVE. The provisions of this SECTION 17 for
the subordination of this Lease and the conditions of such subordination shall
be self-operative and no further instrument of subordination shall be required.
In confirmation of such subordination, Lessee shall promptly execute and deliver
at its own cost and expense any instrument reasonably acceptable to Lessee, in
recordable form if required, that Lessor, Agent or any of their respective
successors in interest may reasonably request to evidence such subordination.
SECTION 18. QUIET ENJOYMENT
If and so long as the Lessee shall pay the Basic Rent and any
Additional Rent reserved by this Lease, and shall perform, observe and comply
with all the terms, covenants and conditions herein contained on the part of
Lessee to be performed, observed and complied with, Lessee shall quietly enjoy
the Freezer Land free from any disturbance by Lessor or any person or entity
claiming through or under Lessor, subject, however, to the terms of this Lease.
This SECTION shall not be deemed to constitute a warranty by Lessor of title to
the Freezer Land.
SECTION 19. ESTOPPEL CERTIFICATE
Lessor and Lessee agree at any time and from time to time upon ten (10)
days' prior notice from the requesting party, to execute, acknowledge and
deliver to the requesting party and to such other persons and entities as such
requesting party may designate, a statement certifying (i) that this Lease is
unmodified and in full force and effect, or if there have been modifications,
that the Lease is in full force and effect as modified and stating the
modifications, (ii) the date to which the Basic Rent has been paid, (iii) that
all Additional Rent that is due and payable on or before such date has been paid
in full, (iv) that to the best of the certifying party's knowledge, the
requesting party is not in default in observing, performing or complying with
any term, covenant or condition contained in this Lease on such party's part to
be observed, performed or complied with or, if the certifying party has
knowledge of any such default, specifying each such default, (v) that the
certifying party has not made and does not have any
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claim against the requesting party under this Lease or, if so, the nature and
the dollar amount, if any, of such claim, (vi) that there do not exist any
offsets, defenses or counterclaims against enforcement of any of the terms,
covenants or conditions of this Lease to be observed, performed or complied with
on the part of the requesting party, or, if so, specifying the same and the
dollar amount thereof and (vii) in the case of a request by Lessor, such further
information with respect to this Lease or the Freezer Land as Lessor may
reasonably request, it being intended that any such statement delivered pursuant
to this SECTION shall be binding on the certifying party and may be relied upon
by the requesting party and any designee of the requesting party, including,
without limitation, any prospective purchaser of the Freezer Land, any mortgagee
or prospective mortgagee of the Freezer Land, or any lessor or prospective
lessor under any underlying lease of the Freezer Land or any assignee or
prospective assignee of any such mortgagee or lessor.
SECTION 20. INTENTIONALLY OMITTED
SECTION 21. CONVEYANCE BY LESSOR
The term "LESSOR" as used in this Lease means only the owner for the
time being of the Freezer Land or of the lessee's interest under any underlying
lease (as the case may be), so that, in the event of any transfer of said
interest in accordance with this SECTION, the transferor shall be and hereby is
entirely freed and relieved of all covenants and obligations of Lessor
hereunder, except any such obligations accrued prior to the date of transfer,
and it shall be deemed and construed, without further agreement between the
parties or between the parties and the transferee of the Freezer Land or of the
lessee's interest under any underlying lease (as the case may be), that such
transferee has assumed and agreed to carry out any and all covenants and
obligations of Lessor hereunder accruing from and after the date of such
transfer, subject to the release of such transferee from the obligations of
Lessor hereunder upon any further transfer of the interest of Lessor. Lessor may
freely transfer its interest in the Freezer Land and this Lease to any successor
Lessor at any time, subject to Lessee's rights under this Lease.
SECTION 22. BROKERAGE
Lessee represents and warrants that neither Lessee nor any employee,
representative or agent of Lessee has dealt with any broker in connection with
the lease of the Freezer Land to Lessee except as set forth on SCHEDULE 3
attached hereto. Lessee shall indemnify and hold harmless Lessor from and
against any and all Claims resulting from any claim that may be made against
Lessor or the Freezer Land by any party named on SCHEDULE 3 attached hereto or
as a result of a breach by Lessee of its representation and warranty contained
in this SECTION. Lessor shall have no liability for any compensation, commission
or other fee arising out of any sublease by Lessee. This provision shall survive
the expiration or any termination of this Lease.
SECTION 23. NOTICES
All notices and other communications provided for under this Lease
shall be in writing and shall be delivered in the manner provided in the
Participation Agreement.
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SECTION 24. ENTIRE AGREEMENT; NO WAIVER
24.1 ENTIRE AGREEMENT. This Lease, along with the other Operative
Documents, contains all the covenants, representations, warranties and
conditions made by or between the parties hereto and any and all other prior
agreements and understandings (whether oral, written or otherwise) are
superseded by this Lease.
24.2 NO WAIVER. The receipt of rent by Lessor, with knowledge of any
breach of this Lease by Lessee or of any default on the part of Lessee in the
observance, performance or compliance with any of the terms, covenants or
conditions of this Lease, shall not be deemed to be a waiver of any of the
terms, covenants or conditions of this Lease. No failure on the part of Lessor
to enforce any term, covenant or condition herein contained, nor any waiver of
any right thereunder by Lessor, unless in writing, shall discharge or invalidate
such term, covenant or condition, or affect the right of Lessor to enforce the
same in the event of any subsequent breach or default. The receipt by Lessor of
any rent or any other sum of money or any other consideration hereunder paid by
or on behalf of Lessee after the expiration or termination, in any manner, of
this Lease, or after the giving by Lessor of any notice hereunder to effect such
termination, shall not reinstate, continue or extend the Term or destroy or in
any manner impair the efficacy of any such notice of termination as may have
been given hereunder by Lessor to Lessee prior to the receipt of any such sum of
money or other consideration, unless so agreed to in writing and signed by
Lessor. Neither acceptance of the keys nor any other act or thing done by Lessor
or any employee, agent or representative of Lessor during the Term shall be
deemed to be an acceptance of a surrender of the Freezer Land, excepting only an
agreement in writing signed by Lessor accepting or agreeing to accept such a
surrender.
SECTION 25. END OF TERM
25.1 SURRENDER. (a) If Lessee shall elect to surrender the Freezer Land
upon expiration of the Term, then Lessee shall, on or before the last day of the
Term or on the sooner termination of this Lease, peaceably and quietly leave,
surrender and yield up unto Lessor the Freezer Land, in good condition,
reasonable wear and tear excepted, free of tenancies and broom-clean.
(b) If the expiration or termination of this Lease shall result in the
creation of any obligation of Lessor or Lessee under Applicable Laws to (i) make
any filings, submissions or applications to any governmental or
quasi-governmental agency in connection with any Environmental Activity at the
Freezer Land, (ii) undertake any studies, inspections, assessments or tests with
respect to the potential presence of Hazardous Materials at the Freezer Land,
(iii) obtain any approvals of any such governmental or quasi-governmental agency
of the cessation of Lessee's occupancy or operations at the Freezer Land, (iv)
undertake any remediation, cleanup or removal action with respect to any
Hazardous Materials at, on or under the Freezer Land, or (v) take any other
action (including, without limitation, the provision of financial assurances for
the performance of any of the aforementioned obligations) with respect to any
Environmental Activity or to the presence or alleged presence of Hazardous
Materials on, at or under the Freezer Land, any and all such obligations shall
be performed by Lessee in compliance with all Applicable Law.
(c) In the event that Lessee remains in possession of the Freezer Land
after the expiration or earlier termination of this Lease, and without Lessor's
consent, Lessee shall be
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deemed to be occupying the Freezer Land as a tenant at sufferance. Any such
occupancy by Lessee shall be subject to all the terms, covenants and conditions
of this Lease insofar as the same are applicable to such a tenancy except Lessee
shall pay on the first day of each month of the holdover period an amount equal
to the higher of (i) 150% of one-twelfth of the sum of Basic Rent and Additional
Rent payable by Lessee during the last year of the Term and (ii) the fair market
rental value of the Freezer Land at such time, as estimated by a consultant
retained by Lessor, together with all consequential damages suffered by Lessor
as a result of Lessee's failure to surrender the Freezer Land. The provisions of
this SECTION 25.1(C) shall not be deemed to grant to Lessee the right to, or
otherwise be deemed to, extend the Term beyond the expiration or earlier
termination of this Lease. Neither the payment by Lessee to Lessor nor the
acceptance by Lessor from Lessee of any amount in payment for Lessee's occupancy
of the Freezer Land beyond the expiration or earlier termination of this Lease
shall (A) be deemed to convert Lessee's occupancy into any interest other than a
tenancy at sufferance, (B) revoke or otherwise impair the validity of any notice
to quit or ejectment notice or proceeding that Lessor may have served or
commenced or (C) prohibit or otherwise impair Lessor's right to immediately
obtain an order of ejectment against Lessee. Lessee irrevocably waives the
benefit of any and all Applicable Laws that grant to Lessee any rights
inconsistent with the provisions of this SECTION 25.1(C).
25.2 REMOVAL OF FREEZER IMPROVEMENTS.
(a) Freezer Improvements shall be and remain the property of Lessee and
Lessee may remove the same at any time on or before the Expiration Date. Subject
to SECTION 25.2(B), on or prior to the Expiration Date or sooner termination of
the Term, Lessee shall, at Lessee's expense, remove all Freezer Improvements.
(b) At least 30 days prior to commencing the removal of Freezer
Improvements, Lessee shall notify Lessor of its intention to remove such Freezer
Improvements and if Lessor notifies Lessee within such 30 day period, Lessee
shall not remove such Freezer Improvements and the Freezer Improvements shall
become the property of the Lessor upon the Expiration Date or sooner termination
of the Term.
(c) Lessee shall repair, in a good and workmanlike manner, any damage
to the Freezer Land caused by Lessee's removal of Freezer Improvements, and upon
default thereof, Lessee shall reimburse Lessor, on demand, for Lessor's cost of
repairing such damage.
(d) Any Freezer Improvements not removed on or before the Expiration
Date or sooner termination of the Term, shall be deemed abandoned and Lessor may
either retain the same as Lessor's property, or if Lessee is obliged to remove
the same hereunder, remove and dispose of same, and repair and restore any
damage caused thereby, at Lessee's cost and without accountability to Lessee.
25.3 SURVIVAL.
The provisions of this SECTION 25 shall survive the expiration or
earlier termination of this Lease.
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SECTION 26. NO MERGER
There shall be no merger of this Lease or of the leasehold estate
hereby created with any other interest or estate in the Freezer Land by reason
of the fact that the same person acquires or holds, directly, this Lease or the
leasehold estate hereby created or any interest herein or in such leasehold
estate as well as any other interest or estate in the Freezer Land.
SECTION 27. MISCELLANEOUS
27.1 SECTION HEADINGS. The Section headings in this Lease are inserted
only as a matter of convenience in reference and are not to be given any effect
whatsoever in construing any provision of this Lease.
27.2 SUCCESSORS AND ASSIGNS. The covenants and agreements contained in
this Lease shall apply to, inure to the benefit of, and be binding upon the
parties hereto and upon their respective successors and assigns, except as
expressly otherwise herein provided.
27.3 AMENDMENT. No waiver or consent under this Lease nor any
amendment, modification or other change in the terms, covenants or conditions
hereof shall be effective unless the same shall be in writing and signed by the
party against whom enforcement of such waiver, consent, amendment, modification
or change is sought and such waiver, consent, amendment, modification or other
change is granted or entered into in accordance with the terms of SECTION 11.1
of the Participation Agreement.
27.4 INVALIDITY. If any term, covenant or condition of this Lease or
any portion of any term, covenant or condition hereof or the application thereof
to any person, entity or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term,
covenant or condition or portion thereof to persons, entities and circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term, covenant and condition of this Lease and each
portion thereof shall be valid and be enforced to the fullest extent permitted
by law.
27.5 CONSTRUCTION. This Lease shall not be construed more strictly
against one party than against the other merely by virtue of the fact that it
may have been prepared by counsel for one of the parties, it being recognized
that both Lessor and Lessee have contributed substantially and materially to the
preparation of this Lease.
27.6 COUNTERPARTS. This Lease may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 28. SUBMISSION TO JURISDICTION; GOVERNING LAW
With respect to the Freezer Land, this Lease shall be governed by the
law of the State in which the Freezer Land is located. Without limiting the
right of Lessor or Lessee to bring any suit, proceeding or other legal process
against the other arising under this Lease or from the commercial relationship
between Lessor and Lessee relating to this transaction (an "ACTION") in the
courts of other jurisdictions, Lessor and Lessee each hereby irrevocably (a)
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submits now and in the future to the jurisdiction of the courts of competent
jurisdiction in the State in which the Freezer Land giving rise to such dispute
is located, (b) agrees that any Action may be heard in any such court, (c)
waives the defense of an inconvenient forum to the maintenance of any Action in
any such court and (d) agrees to be subject to suit, service and legal process
of such courts in connection with any Action.
SECTION 29. PERFORMANCE REQUIRED OF LESSOR
If, under Applicable Laws, Lessor is required to make any payment or
perform any obligation which is the responsibility of Lessee under the other
terms, covenants and conditions of this Lease, Lessor shall pay or perform the
same on Lessee's behalf, at Lessee's sole expense, provided that (i) Lessee
shall request that Lessor pay or perform the same on Lessee's behalf not less
than fifteen (15) Business Days prior to the date on which such payment or
performance is required, (ii) a reasonable time, but in any case not less than
five (5) Business Days, prior to the date on which such payment or performance
is required, Lessee shall deposit with Lessor, in immediately available funds,
all amounts that are required for such payment or performance and (iii) Lessee
shall reimburse Lessor for any and all reasonable and documented costs and
expenses paid or incurred by Lessor in connection with such payment or
performance promptly, but in any case within five (5) Business Days, after
rendition of a xxxx therefor by Lessor, as Additional Rent. The provisions of
this SECTION 29 shall not be deemed to modify, limit or otherwise alter the
obligation of Lessee to perform, observe and comply with the obligations imposed
upon Lessee by the other terms, covenants and conditions of this Lease.
SECTION 30. PURCHASE OPTION
30.1 PURCHASE OPTION. At any time during the Term, so long as (i) this
Lease shall not have been terminated and (ii) Lessee shall simultaneously
exercise its option to purchase the HQ Property demised under the Synthetic
Lease in accordance with the terms of the Synthetic Lease, Lessee may purchase
the Freezer Land by delivering to Lessor a notice offering to purchase the
Freezer Land and by paying to Lessor an amount equal to $250,000. The terms of
such purchase (other than the purchase price, which shall be governed by the
preceding sentence) shall be the same as are applicable to the purchase of the
HQ Property under the Synthetic Lease. Upon expiration or termination of the
Synthetic Lease (unless Lessee shall purchase the HQ Property under SECTION
12.2(A) (IV) of the Synthetic Lease following such termination, in which event
this SECTION 30 shall continue to apply). Lessee shall no longer have any rights
under this SECTION 30.
SECTION 31. LIMITATION OF LESSOR LIABILITY
31.1 INCORPORATION OF PROVISIONS OF PARTICIPATION AGREEMENT. The
provisions of SECTION 11.11 of the Participation Agreement with respect to the
liability of Lessor are incorporated herein by reference as if fully set forth
herein.
[SIGNATURES ON NEXT PAGE.]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Lease as of the day and year first above written.
FIRST AMERICAN BUSINESS CAPITAL, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
O'CHARLEY'S INC.
By: /s/ A. Xxxx Xxxxxxxx
---------------------------------------
Name: A. Xxxx Xxxxxxxx
Title: Treasurer
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