EXHIBIT 10.2
MASTER LEASE AGREEMENT
Dated as of June 11, 1999
between
ATLANTIC FINANCIAL GROUP, LTD., as Lessor,
and
DOLLAR GENERAL CORPORATION AND CERTAIN SUBSIDIARIES
OF DOLLAR GENERAL CORPORATION, as Lessees
TABLE OF CONTENTS
(Lease Agreement)
Page (1)
ARTICLE I.DEFINITIONS ................................................. 1
ARTICLE XX.XXXXX OF LEASED PROPERTY ................................... 1
2.1 Acceptance and Lease of Property ...................................... 1
2.2 Acceptance Procedure .................................................. 2
ARTICLE XXX.XXXX ...................................................... 2
3.1 Basic Rent ............................................................ 2
3.2 Supplemental Rent ..................................................... 3
3.3 Method of Payment ..................................................... 3
3.4 Late Payment .......................................................... 3
3.5 Net Lease; No Setoff, Etc ............................................. 3
3.6 Certain Taxes ......................................................... 5
3.7 Utility Charges ....................................................... 6
ARTICLE IV.WAIVERS .................................................... 6
ARTICLE V.LIENS; EASEMENTS; PARTIAL CONVEYANCES ....................... 7
ARTICLE VI.MAINTENANCE AND REPAIR;ALTERATIONS,
MODIFICATIONS AND ADDITIONS 8
6.1 Maintenance and Repair; Compliance With Law ........................... 8
6.2 Alterations ........................................................... 9
6.3 Title to Alterations .................................................. 9
ARTICLE VII.USE ....................................................... 9
ARTICLE XXXX.XXXXXXXXX ................................................ 10
ARTICLE IX.ASSIGNMENT AND SUBLEASING .................................. 11
(1) Page numbers have not been comformed for the Xxxxx Document
Page
ARTICLE X.LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE ............... 12
10.1 Event of Loss ..................................................... 12
10.2 Event of Taking ................................................... 13
10.3 Casualty .......................................................... 14
10.4 Condemnation ...................................................... 14
10.5 Verification of Restoration and Rebuilding ........................ 14
10.6 Application of Payments ........................................... 14
10.7 Prosecution of Awards ............................................. 15
10.8 Application of Certain Payments Not Relating
to an Event of Taking ............................................. 16
10.9 Other Dispositions ................................................ 16
10.10 No Rent Abatement ................................................. 17
10.11 Construction Land Interests ....................................... 17
ARTICLE XI.INTEREST CONVEYED TO LESSEES ........................... 17
ARTICLE XXX.XXXXXX OF DEFAULT ..................................... 18
ARTICLE XIII.ENFORCEMENT .......................................... 21
13.1 Remedies .......................................................... 21
13.2 Remedies Cumulative; No Waiver; Consents .......................... 23
ARTICLE XXX.XXXX, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL .. 24
14.1 Lessee's Option to Purchase ....................................... 24
14.2 Conveyance to Lessee .............................................. 25
14.3 Acceleration of Purchase Obligation ............................... 26
14.4 Determination of Purchase Price ................................... 26
14.5 Purchase Procedure ................................................ 26
14.6 Option to Remarket ................................................ 27
14.7 Rejection of Sale ................................................. 30
14.8 Return of Leased Property ......................................... 30
14.9 Renewal ........................................................... 31
ARTICLE XV.LESSEE'S EQUIPMENT ..................................... 31
ARTICLE XVI.RIGHT TO PERFORM FOR LESSEE ........................... 33
ARTICLE XVII.MISCELLANEOUS ........................................ 33
17.1 Reports ........................................................... 33
17.2 Binding Effect; Successors and Assigns;
Survival .......................................................... 33
17.3 Quiet Enjoyment ................................................... 33
17.4 Notices ........................................................... 34
17.5 Severability ...................................................... 35
17.6 Amendment; Complete Agreements .................................... 35
17.7 Construction ...................................................... 35
17.8 Headings .......................................................... 35
17.9 Counterparts ...................................................... 35
17.10 GOVERNING LAW ..................................................... 36
17.11 Discharge of Lessee's Obligations by its Subsidiaries or Affiliates 36
17.12 Liability of Lessor Limited ....................................... 36
17.13 Estoppel Certificates ............................................. 37
17.14 No Joint Venture .................................................. 37
17.15 No Accord and Satisfaction ........................................ 37
Page
17.16 No Merger ......................................................... 37
17.17 Survival .......................................................... 38
17.18 Chattel Paper ..................................................... 38
17.19 Time of Essence ................................................... 38
17.20 Recordation of Lease .............................................. 38
17.21 Investment of Security Funds ...................................... 38
17.22 Ground Leases: IDB Documentation .................................. 39
17.23 Land and Building ................................................. 39
17.24 Joint and Several ................................................. 39
APPENDICES AND EXHIBITS
APPENDIX A Defined Terms
EXHIBIT A Lease Supplement
THIS MASTER LEASE AGREEMENT (as from time to time amended or
supplemented, this "Lease"), dated as of June 11, 1999, is among ATLANTIC
FINANCIAL GROUP, LTD., a Texas limited partnership (together with its successors
and assigns hereunder, the "Lessor"), as Lessor, and DOLLAR GENERAL CORPORATION,
a Tennessee corporation ("Dollar"), and certain Subsidiaries of Dollar hereafter
parties hereto (individually, with its successors and permitted assigns
hereunder, each a "Lessee" and collectively, the "Lessees"), as Lessees.
PRELIMINARY STATEMENT
A. Lessor will accept title to, or acquire a leasehold interest in,
from one or more third parties designated by the Construction Agent, on each
Closing Date, certain parcels of real property to be specified by the
Construction Agent, together with any improvements thereon.
X. Xxxxxx desires to lease to each Lessee, and each Lessee desires to
lease from Lessor, certain of such properties as described on the Lease
Supplement(s) to which such Lessee is a party.
C. If applicable, the Construction Agent will construct, or cause to be
constructed, certain improvements on such parcels of real property which as
constructed will be the property of Lessor and will become part of such property
subject to the terms of this Lease.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, Lessor
and Lessees hereby agree as follows:
ARTICLE I
DEFINITIONS
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in Appendix A hereto for all purposes hereof.
ARTICLE II
LEASE OF LEASED PROPERTY
Section 2.1 Acceptance and Lease of Property.
On each Closing Date for Land to be leased hereunder, Lessor, subject
to the satisfaction or waiver of the conditions set forth in Section 3 of
the Master Agreement, hereby agrees to accept delivery on such Closing Date
of such Land pursuant to the terms of the Master Agreement, together with
any Building or other improvements thereon, and simultaneously to lease to
the related Lessee hereunder for the Lease Term, Lessor's interest in such
Land and in such Building or other improvements, together with any Building
which thereafter may be constructed thereon pursuant to the Construction
Agency Agreement, and such related Lessee hereby agrees, expressly for the
direct benefit of Lessor, commencing on such Closing Date for the Lease
Term, to lease from Lessor Lessor's interest in such Land to be delivered
on such Closing Date together with Lessor's interest in any Building and
other improvements thereon or which thereafter may be constructed thereon
pursuant to the Construction Agency Agreement.
Section 2.2 Acceptance Procedure.
Lessor hereby authorizes one or more employees of the related Lessee,
to be designated by such Lessee, as the authorized representative or
representatives of Lessor to accept delivery on behalf of Lessor of that
Leased Property identified on the applicable Funding Request. Each Lessee
hereby agrees that such acceptance of delivery by such authorized
representative or representatives and the execution and delivery by such
Lessee on each Closing Date for property to be leased hereunder of a Lease
Supplement in substantially the form of Exhibit A hereto (appropriately
completed) shall, without further act, constitute the irrevocable
acceptance by such Lessee of that Leased Property which is the subject
thereof for all purposes of this Lease and the other Operative Documents on
the terms set forth therein and herein, and that such Leased Property,
together with any Building or other improvements thereon or to be
constructed thereon pursuant to the Construction Agency Agreement, shall be
deemed to be included in the leasehold estate of this Lease and shall be
subject to the terms and conditions of this Lease as of such Closing Date.
The demise and lease of each Building pursuant to this Section 2.2 shall
include any additional right, title or interest in such Building which may
at any time be acquired by Lessor, the intent being that all right, title
and interest of Lessor in and to such Building shall at all times be
demised and leased to the related Lessee hereunder.
ARTICLE III RENT
Section 3.1 Basic Rent.
Beginning with and including the first Payment Date occurring after the
Initial Closing Date, each Lessee shall pay to the Agent the Basic Rent for
the Leased Properties subject to a Lease Supplement to which such Lessee is
a party, in installments, payable in arrears on each Payment Date during
the Lease Term, subject to Section 2.3(c) of the Master Agreement.
Section 3.2 Supplemental Rent.
Each Lessee shall pay to the Agent, or to whomever shall be entitled
thereto as expressly provided herein or in any other Operative Document,
any and all Supplemental Rent within three (3) Business Days after the date
the same shall become due and payable (or, if no due date is specified,
after demand)and in the event of any failure on the part of such Lessee to
pay any Supplemental Rent, the Agent shall have all rights, powers and
remedies provided for herein or by law or in equity or otherwise in the
case of nonpayment of Basic Rent. All Supplemental Rent to be paid pursuant
to this Section 3.2 shall be payable in the type of funds and in the manner
set forth in Section 3.3.
Section 3.3 Method of Payment.
Basic Rent shall be paid to the Agent, and Supplemental Rent (including
amounts due under Article XIV hereof) shall be paid to the Agent (or to
such Person as may be entitled thereto) or, in each case, to such Person as
the Agent (or such other Person) shall specify in writing to Dollar, and at
such place as the Agent (or such other Person) shall specify in writing to
Dollar, which specifications by the Agent shall be received by Dollar at
least five (5) Business Days prior to the due date therefor. Each payment
of Rent (including payments under Article XIV hereof) shall be made by the
Lessees prior to 12:00 p.m. (noon) Nashville, Tennessee time at the place
of payment in funds consisting of lawful currency of the United States of
America which shall be immediately available on the scheduled date when
such payment shall be due, unless such scheduled date shall not be a
Business Day, in which case such payment shall be made on the next
succeeding Business Day.
Section 3.4 Late Payment.
If any Basic Rent shall not be paid on the date when due, the related
Lessee shall pay to the Agent, as Supplemental Rent, interest (to the
maximum extent permitted by law) on such overdue amount from and including
the due date thereof to but excluding the Business Day of payment thereof
at the Overdue Rate.
Section 3.5 Net Lease; No Setoff, Etc.
This Lease is a net lease and notwithstanding any other provision of
this Lease, each Lessee shall pay all Basic Rent and Supplemental Rent, and
all costs, charges, taxes (other than taxes covered by the exclusion
described in Section 7.4(b) of the Master Agreement), assessments and other
expenses foreseen or unforeseen, for which such Lessee or any Indemnitee is
or shall become liable by reason of such Lessee's or such Indemnitee's
estate, right, title or interest in the Leased Properties, or that are
connected with or arise out of the acquisition (except the initial costs of
purchase by Lessor of its interest in any Leased Property, which costs,
subject to the terms of the Master Agreement, shall be funded by the
Funding Parties pursuant to the Master Agreement), construction (except
costs to be funded under the Construction Agency Agreement), installation,
possession, use, occupancy, maintenance, ownership, leasing, repairs and
rebuilding of, or addition to, the Leased Properties or any portion
thereof, and any other amounts payable hereunder and under the other
Operative Documents without counterclaim, setoff, deduction or defense and
without abatement, suspension, deferment, diminution or reduction, and each
Lessee's obligation to pay all such amounts throughout the Lease Term,
including the Construction Term, is absolute and unconditional. The
obligations and liabilities of each Lessee hereunder shall in no way be
released, discharged or otherwise affected for any reason, including
without limitation: (a) any defect in the condition, merchantability,
design, quality or fitness for use of any Leased Property or any part
thereof, or the failure of any Leased Property to comply with all
Applicable Law, including any inability to occupy or use any Leased
Property by reason of such non-compliance; (b) any damage to, removal,
abandonment, salvage, loss, contamination of or Release from, scrapping or
destruction of or any requisition or taking of any Leased Property or any
part thereof; (c) any restriction, prevention or curtailment of or
interference with any use of any Leased Property or any part thereof
including eviction; (d) any defect in title to or rights to any Leased
Property or any Lien on such title or rights or on any Leased Property; (e)
any change, waiver, extension, indulgence or other action or omission or
breach in respect of any obligation or liability of or by Lessor, the Agent
or the Lender; (f) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceedings relating to
any Lessee, Lessor, the Lender, the Agent or any other Person, or any
action taken with respect to this Lease by any trustee or receiver of any
Lessee, Lessor, the Lender, the Agent, any Ground Lessor or any other
Person, or by any court, in any such proceeding; (g) any claim that any
Lessee has or might have against any Person, including without limitation,
Lessor, any vendor, manufacturer, contractor of or for any Leased Property
or any part thereof, the Agent, any Ground Lessor, any Governmental
Authority, or the Lender; (h) any failure on the part of Lessor to perform
or comply with any of the terms of this Lease, any other Operative Document
or of any other agreement; (i) any invalidity or unenforceability or
illegality or disaffirmance of this Lease against or by any Lessee or any
provision hereof or any of the other Operative Documents or any provision
of any thereof whether or not related to the Transaction; (j) the
impossibility or illegality of performance by any Lessee, Lessor or both;
(k) any action by any court, administrative agency or other Governmental
Authority; (l) any restriction, prevention or curtailment of or
interference with the Construction or any use of any Leased Property or any
part thereof; or (m) any other occurrence whatsoever, whether similar or
dissimilar to the foregoing, whether or not any Lessee shall have notice or
knowledge of any of the foregoing. Except as specifically set forth in
Articles XIV or X of this Lease, this Lease shall be noncancellable by each
Lessee in any circumstance whatsoever and each Lessee, to the extent
permitted by Applicable Law, waives all rights now or hereafter conferred
by statute or otherwise to quit, terminate or surrender this Lease, or to
any diminution, abatement or reduction of Rent payable by such Lessee
hereunder. Each payment of Rent made by a Lessee hereunder shall be final
and such Lessee shall not seek or have any right to recover all or any part
of such payment from Lessor, the Agent, any Lender or any party to any
agreements related thereto for any reason whatsoever. Each Lessee assumes
the sole responsibility for the condition, use, operation, maintenance, and
management of the Leased Properties leased by it and Lessor shall have no
responsibility in respect thereof and shall have no liability for damage to
the property of either any Lessee or any subtenant of any Lessee on any
account or for any reason whatsoever, other than solely by reason of
Lessor's willful misconduct or gross negligence.
Section 3.6 Certain Taxes.
Without limiting the generality of Section 3.5, each Lessee agrees to
pay when due all real estate taxes, personal property taxes, gross sales
taxes, including any sales or lease tax imposed upon the rental payments
hereunder or under a sublease, occupational license taxes, water charges,
sewer charges, assessments of any nature and all other governmental
impositions and charges of every kind and nature whatsoever (the
"tax(es)"), when the same shall be due and payable without penalty or
interest; provided, however, that this Section shall not apply to any of
the taxes covered by the exclusion described in Section 7.4(b) of the
Master Agreement. It is the intention of the parties hereto that, insofar
as the same may lawfully be done, Lessor shall be, except as specifically
provided for herein, free from all expenses in any way related to the
Leased Properties and the use and occupancy thereof. Any tax relating to a
fiscal period of any taxing authority falling partially within and
partially outside the Lease Term, shall be apportioned and adjusted between
Lessor and the related Lessee. Each Lessee covenants to furnish Lessor and
the Agent, upon the Agent's written request, within forty-five (45) days
after the last date when any tax must be paid by such Lessee as provided in
this Section 3.6, official receipts of the appropriate taxing, authority or
other proof satisfactory to Lessor, evidencing the payment thereof.
So long as no Event of Default has occurred and is continuing, the
related Lessee may defer payment of a tax so long as the validity or the
amount thereof is contested by such Lessee with diligence and in good
faith; provided, however, that such Lessee shall furnish to Lessor and the
Agent a bond or other adequate security in an amount and on terms
reasonably satisfactory to Lessor and the Agent and shall pay the tax in
sufficient time to prevent delivery of a tax deed. Such contest shall be at
the related Lessee's sole cost and expense. Each Lessee covenants to
indemnify and save harmless Lessor, which indemnification shall survive the
termination of this Lease, the Agent and the Lender from any actual and
reasonable costs or expenses incurred by Lessor, the Agent or the Lender as
a result of such contest.
Section 3.7 Utility Charges.
Each Lessee agrees to pay or cause to be paid as and when the same are
due and payable all charges for gas, water, sewer, electricity, lights,
heat, power, telephone or other communication service and all other utility
services used, rendered or supplied to, upon or in connection with the
Leased Properties leased by it.
ARTICLE IV. WAIVERS
During the Lease Term, Lessor's interest in the Leased Properties,
including the Building(s) (whether or not completed) and the Land, is
demised and let by Lessor "AS IS" subject to (a) the rights of any parties
in possession thereof, (b) the state of the title thereto existing at the
time Lessor acquired its interest in the Leased Properties, (c) any state
of facts which an accurate survey or physical inspection might show
(including the survey delivered on the related Closing Date), (d) all
Applicable Law, and (e) any violations of Applicable Law which may exist
upon or subsequent to the commencement of the Lease Term. EACH LESSEE
ACKNOWLEDGES THAT, ALTHOUGH LESSOR WILL OWN AND HOLD TITLE TO THE LEASED
PROPERTIES, LESSOR IS NOT RESPONSIBLE FOR THE DESIGN, DEVELOPMENT,
BUDGETING AND CONSTRUCTION OF THE BUILDING(S) OR ANY ALTERATIONS. NEITHER
LESSOR, THE AGENT NOR THE LENDER HAS MADE OR SHALL BE DEEMED TO HAVE MADE
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO
HAVE ANY LIABILITY WHATSOEVER AS TO THE VALUE, MERCHANTABILITY, TITLE,
HABITABILITY, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE
LEASED PROPERTIES (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION OR
WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED
PROPERTIES (OR ANY PART THEREOF), ALL SUCH WARRANTIES BEING HEREBY
DISCLAIMED, AND NEITHER LESSOR, THE AGENT NOR THE LENDER SHALL BE LIABLE
FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF ANY
LEASED PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAW,
except that Lessor hereby represents and warrants that each Leased Property
is and shall be free of Lessor Liens. As between Lessor and the Lessees,
each related Lessee has been afforded full opportunity to inspect each
Leased Property, is satisfied with the results of its inspections of such
Leased Property and is entering into this Lease solely on the basis of the
results of its own inspections and all risks incident to the matters
discussed in the two preceding sentences, as between Lessor, the Agent or
the Lender on the one hand, and the Lessees, on the other, are to be borne
by the Lessees. The provisions of this Article IV have been negotiated,
and, except to the extent otherwise expressly stated, the foregoing
provisions are intended to be a complete exclusion and negation of any
representations or warranties by Lessor, the Agent or the Lender, express
or implied, with respect to the Leased Properties, that may arise pursuant
to any law now or hereafter in effect, or otherwise.
ARTICLE V. LIENS; EASEMENTS; PARTIAL CONVEYANCES
No Lessee shall directly or indirectly create, incur, permit to exist
or assume, any Lien on or with respect to any Leased Property, the title
thereto, or any interest therein, including any Liens which arise out of
the possession, use, occupancy, construction, repair or rebuilding of any
Leased Property or by reason of labor or materials furnished or claimed to
have been furnished to a Lessee, or any of its contractors or agents or
Alterations constructed by a Lessee, except, in all cases, Permitted Liens.
Notwithstanding the foregoing paragraph, at the request of a Lessee,
Lessor shall, from time to time during the Lease Term and upon reasonable
advance written notice from such Lessee, and receipt of the materials
specified in the next succeeding sentence, consent to and join in any (i)
grant of easements, licenses, rights of way and other rights in the nature
of easements, including, without limitation, utility easements to
facilitate Lessees' use, development and construction of the Leased
Properties, (ii) release or termination of easements, licenses, rights of
way or other rights in the nature of easements which are for the benefit of
the Land or the Building(s) or any portion thereof, (iii) dedication or
transfer of portions of the Land, not improved with a Building, for road,
highway or other public purposes, (iv) execution of agreements for ingress
and egress and amendments to any covenants and restrictions affecting the
Land or the Building(s) or any portion thereof and (v) request to any
Governmental Authority for platting or subdivision or replatting or
resubdivision approval with respect to the Land or any portion thereof or
any parcel of land of which the Land or any portion thereof forms a part or
a request for rezoning or any variance from zoning or other governmental
requirements. Lessor's obligations pursuant to the preceding sentence shall
be subject to the requirements that:
(a) any such action shall be at the sole cost and expense of the
requesting Lessee and such Lessee shall pay all actual and
reasonable out-of-pocket costs of Lessor, the Agent and the Lender
in connection therewith (including, without limitation, the
reasonable fees of attorneys, architects, engineers, planners,
appraisers and other professionals reasonably retained by Lessor,
the Agent or the Lender in connection with any such action),
(b) the requesting Lessee shall have delivered to Lessor and Agent a
certificate of a Responsible Officer of such Lessee stating that
o such action will not cause any Leased Property, the Land or
any Building or any portion thereof to fail to comply in any
material respect with the provisions of this Lease or any
other Operative Documents, or in any material respect with
Applicable Law; and
o such action will not materially reduce the Fair Market Sales
Value, utility or useful life of any Leased Property, the Land
or any Building nor Lessor's interest therein; and
(c) in the case of any release or conveyance, if Lessor, the Agent or
the Lender so reasonably requests, the requesting Lessee will cause
to be issued and delivered to Lessor and the Agent by the Title
Insurance Company an endorsement to the Title Policy pursuant to
which the Title Insurance Company agrees that its liability for the
payment of any loss or damage under the terms and provisions of the
Title Policy will not be affected by reason of the fact that a
portion of the real property referred to in Schedule A of the Title
Policy has been released or conveyed by Lessor.
ARTICLE VI. MAINTENANCE AND REPAIR; ALTERATIONS, MODIFICATIONS AND ADDITIONS
Section 6.1 Maintenance and Repair;
Compliance With Law. Each Lessee, at its own expense, shall at all
times (a) maintain each Leased Property leased by it in good repair and
condition (subject to ordinary wear and tear), in accordance with prudent
industry standards and, in any event, in no less a manner as other similar
property owned or leased by such Lessee or its Affiliates, (b) make all
Alterations in accordance with, and maintain (whether or not such maintenance
requires structural modifications or Alterations) and operate and otherwise keep
each Leased Property in compliance in all material respects with, all Applicable
Laws and insurance requirements, and (c) make all Material repairs, replacements
and renewals of each Leased Property or any part thereof which may be required
to keep such Leased Property in the condition required by the preceding clauses
(a) and (b). Each Lessee shall perform the foregoing maintenance obligations
regardless of whether any Leased Property is occupied or unoccupied. Each Lessee
waives any right that it may now have or hereafter acquire to (i) require
Lessor, the Agent or the Lender to maintain, repair, replace, alter, remove or
rebuild all or any part of any Leased Property or (ii) make repairs at the
expense of Lessor, the Agent or the Lender pursuant to any Applicable Law or
other agreements or otherwise. NEITHER LESSOR, THE AGENT NOR THE LENDER SHALL BE
LIABLE TO ANY LESSEE OR TO ANY CONTRACTORS, SUBCONTRACTORS, LABORERS,
MATERIALMEN, SUPPLIERS OR VENDORS FOR SERVICES PERFORMED OR MATERIAL PROVIDED ON
OR IN CONNECTION WITH ANY LEASED PROPERTY OR ANY PART THEREOF. Neither Lessor,
the Agent nor the Lender shall be required to maintain, alter, repair, rebuild
or replace any Leased Property in any way.
Section 6.2 Alterations.
Each Lessee may, without the consent of Lessor, at such Lessee's own
cost and expense, make Alterations which do not materially diminish the value,
utility or useful life of any Leased Property.
Section 6.3 Title to Alterations.
Title to all Alterations shall without further act vest in Lessor
(subject to each Lessee's right to remove trade fixtures, personal property and
equipment which do not constitute Alterations and which were not acquired with
funds advanced by Lessor or the Lender) and shall be deemed to constitute a part
of the Leased Properties and be subject to this Lease.
ARTICLE VII.USE
Each Lessee may use each Leased Property leased by it or any part
thereof for any lawful purpose, and in a manner consistent with the standards
applicable to properties of a similar nature in the geographic area in which
such Leased Property is located, provided that such use does not materially
adversely affect the Fair Market Sales Value, utility, remaining useful life or
residual value of such Leased Property, and does not materially violate or
conflict with, or constitute or result in a material default under, any
Applicable Law or any insurance policy required hereunder. In the event any
Lessee's use substantially changes the character of any Building in a manner or
to an extent that, in Lessor's or the Agent's reasonable opinion, adversely
affects the Fair Market Sales Value and/or marketability of such Building, such
Lessee shall, upon the termination or expiration of this Lease, at Lessor's
request, restore such Leased Property to its general character at the Completion
Date (ordinary wear and tear excepted). No Lessee shall commit or permit any
waste of any Leased Property or any material part thereof.
ARTICLE VII. INSURANCE
(a) At any time during which any part of any Building or any Alteration
is under construction and as to any part of any Building or any
Alteration under construction (other than, with respect to each
Construction Land Interest, during the Construction Term therefor),
the related Lessee shall maintain, or cause to be maintained, at
its sole cost and expense, as a part of its blanket policies or
otherwise, "all risks" non-reporting completed value form of
builder's risk insurance.
(b) During the Lease Term (other than, with respect to each
Construction Land Interest, during the Construction Term therefor),
each Lessee shall maintain, at its sole cost and expense, as a part
of its blanket policies or otherwise, insurance against loss or
damage to any Building by fire and other risks, including
comprehensive boiler and machinery coverage, on terms and in
amounts no less favorable than insurance covering other similar
properties owned or leased by a Lessee and that are in accordance
with normal industry practice, but in no event less than the
replacement cost of such Building from time to time.
(c) During the Lease Term, each Lessee shall maintain, at its sole cost
and expense, commercial general liability insurance with respect to
the Leased Properties as is ordinarily procured by Persons who own
or operate similar properties in the same geographic area. Such
insurance shall be on terms and in amounts that are no less
favorable than insurance maintained by a Lessee or its Affiliates
with respect to similar properties that it owns or leases and that
are in accordance with normal industry practice, but in no event
less than $2,000,000 per occurrence. Such insurance policies shall
also provide that each Lessee's insurance shall be considered
primary insurance. Nothing in this Article VIII shall prohibit
Lessor, the Agent or the Lender from carrying at its own expense
other insurance on or with respect to the Leased Properties,
provided that any insurance carried by Lessor, the Agent or the
Lender shall not prevent any Lessee from carrying the insurance
required hereby.
(d) Each policy of insurance maintained by a Lessee pursuant to clauses
(a) and (b) of this Article VIII shall provide that all insurance
proceeds in respect of any loss or occurrence shall be adjusted by
such Lessee, except (a) that with respect to any loss, the
estimated cost of restoration of which is in excess of the greater
of $5,000,000 and 50% of the Funded Amounts with respect to the
related Leased Property, the adjustment thereof shall be subject to
the prior written approval of the Agent (or of Lessor if the Loans
have been fully paid) and the insurance proceeds therefor shall be
paid to the Agent (or to Lessor if the Loans have been fully paid)
for application in accordance with this Lease, and (b) if, and for
so long as an Event of Default exists, all losses shall be adjusted
solely by, and all insurance proceeds shall be paid solely to, the
Agent (or Lessor if the Loans have been fully paid) for application
pursuant to this Lease.
(e) On the Closing Date for each Leased Property that is a Major
Property, on the Completion Date for a Major Property and on each
anniversary of the Initial Closing Date each Lessee shall furnish
Lessor with certificates showing the insurance required under this
Article VIII to be in effect and naming Lessor, the Agent, the
Liquidity Banks and the Lender as additional insureds. Such
certificates shall include a provision for thirty (30) days'
advance written notice by the insurer to Lessor and the Agent in
the event of cancellation or expiration or nonpayment of premium
with respect to such insurance, and shall include a customary
breach of warranty clause. 2. Each policy of insurance maintained
by a Lessee pursuant to this Article VIII shall (1) contain the
waiver of any right of subrogation of the insurer against Lessor,
the Agent and the Lender and (2) provide that in respect of the
interests of Lessor, the Agent and the Lender, such policies shall
not be invalidated by any fraud, action, inaction or
misrepresentation of any Lessee or any other Person acting on
behalf of any Lessee.
(f) All insurance policies carried in accordance with this Article VIII
shall be maintained with insurers rated at least A by A.M. Best &
Company, and in all cases the insurer shall be qualified to insure
risks in the State where each Leased Property is located.
ARTICLE IX. ASSIGNMENT AND SUBLEASING
No Lessee may assign any of its right, title or interest in, to or
under this Lease, except as set forth in the following sentence. Each Lessee may
(i) assign this Lease as it relates to all or any portion of any Leased Property
to any Subsidiary of Dollar so long as Dollar's guaranty pursuant to the
Guaranty Agreement continues in full force and effect and (ii) sublease all or
any portion of any Leased Property, provided that (a) all obligations of such
Lessee shall continue in full effect as obligations of a principal and not of a
guarantor or surety, as though no sublease had been made; (b) such assignment or
sublease shall be expressly subject and subordinate to this Lease, the Loan
Agreement and the other Operative Documents; and (c) each such sublease shall
terminate on or before the Lease Termination Date. Each Lessee shall give the
Agent and Lessor prompt written notice of any such assignment or sublease.
Except pursuant to an Operative Document, this Lease shall not be
mortgaged or pledged by any Lessee, nor shall any Lessee mortgage or pledge any
interest in any Leased Property or any portion thereof. Any such mortgage or
pledge shall be void.
ARTICLE X. LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
Section 10.1 Event of Loss.
Any event (i) which would otherwise constitute a Casualty during the
Base Term, and (ii) which, in the good-faith judgment of the related Lessee,
renders repair and restoration of a Leased Property impossible or impractical,
or requires repairs to a Leased Property that would cost in excess of 50% of the
original cost of such Leased Property, and (iii) as to which such Lessee, within
sixty (60) days after the occurrence of such event, delivers to Lessor an
Officer's Certificate notifying Lessor of such event and of such judgment, shall
constitute an "Event of Loss". In the case of any other event which constitutes
a Casualty, the related Lessee shall restore such Leased Property pursuant to
Section 10.3. If an Event of Loss other than an Event of Taking shall occur, the
related Lessee shall pay to Lessor on the next Payment Date following delivery
of the Officer's Certificate pursuant to clause (iii) above an amount equal to
the related Leased Property Balance. Upon Lessor's receipt of such Leased
Property Balance on such date, Lessor shall cause Lessor's interest in such
Leased Property to be conveyed to the related Lessee in accordance with and
subject to the provisions of Section 14.5 hereof; upon completion of such
purchase, but not prior thereto, this Lease with respect to such Leased Property
and all obligations hereunder with respect to such Leased Property shall
terminate, except with respect to obligations and liabilities hereunder, actual
or contingent, that have arisen or relate to events occurring on or prior to
such date of purchase, or which are expressly stated herein to survive
termination of this Lease.
Upon the consummation of the purchase of any Leased Property pursuant
to this Section 10.1, any proceeds derived from insurance required to be
maintained by the related Lessee pursuant to this Lease for any Leased Property
remaining after payment of such purchase price shall be paid over to, or
retained by, such Lessee or as it may direct, and Lessor shall assign to such
Lessee, without warranty, all of Lessor's rights to and interest in such
insurance required to be maintained by such Lessee pursuant to this Lease.
Section 10.2 Event of Taking.
Any event (i) which constitutes a Condemnation of all of, or
substantially all of, a Leased Property, or (ii) (A) which would otherwise
constitute a Condemnation, (B) which, in the good-faith judgment of the related
Lessee, renders restoration and rebuilding of a Leased Property impossible or
impractical, or requires repairs to a Leased Property that would cost in excess
of 50% of the original cost of such Leased Property, and (C) as to which such
Lessee, within sixty (60) days after the occurrence of such event, delivers to
Lessor an Officer's Certificate notifying Lessor of such event and of such
judgment, shall constitute an "Event of Taking". In the case of any other event
which constitutes a Condemnation, the related Lessee shall restore and rebuild
such Leased Property pursuant to Section 10.4. If an Event of Taking shall
occur, the related Lessee shall pay to Lessor (1) on the next Payment Date
following the occurrence of such Event of Taking, in the case of an Event of
Taking described in clause (i) above, or (2) the next Payment Date following
delivery of the Officer's Certificate pursuant to clause (ii) above, in the case
of an Event of Taking described in clause (ii) above, an amount equal to the
related Leased Property Balance. Upon Lessor's receipt of such Leased Property
Balance on such date, Lessor shall cause Lessor's interest in such Leased
Property to be conveyed to the related Lessee in accordance with and subject to
the provisions of Section 14.5 hereof (provided that such conveyance shall be
subject to all rights of the condemning authority); upon completion of such
purchase, but not prior thereto, this Lease with respect to such Leased Property
and all obligations hereunder with respect to such Leased Property shall
terminate, except with respect to obligations and liabilities hereunder, actual
or contingent, that have arisen or relate to events occurring on or prior to
such date of purchase, or which are expressly stated herein to survive
termination of this Lease.
Upon the consummation of the purchase of such Leased Property pursuant
to this Section 10.2, all Awards received by Lessor, after deducting any
reasonable out-of-pocket costs incurred by Lessor in collecting such Awards,
received or payable on account of an Event of Taking with respect to such Leased
Property during the related Lease Term shall be promptly paid to the related
Lessee, and all rights of Lessor in Awards not then received shall be assigned
to Lessee by Lessor.
Section 10.3 Casualty.
If a Casualty shall occur which is not an Event of Loss, the related
Lessee shall rebuild and restore the affected Leased Property, will complete the
same prior to the Lease Termination Date, and will cause the condition set forth
in Section 3.5(c) of the Master Agreement to be fulfilled with respect to such
restoration and rebuilding prior to the Lease Termination Date, regardless of
whether insurance proceeds received as a result of such Casualty are sufficient
for such purpose.
Section 10.4 Condemnation.
If a Condemnation shall occur which is not an Event of Taking, the
related Lessee shall rebuild and restore the affected Leased Property, will
complete the same prior to the Lease Termination Date, and will cause the
condition set forth in Section 3.5(c) of the Master Agreement to be fulfilled
with respect to such restoration and rebuilding prior to the Lease Termination
Date.
Section 10.5 Verification of Restoration and Rebuilding.
In the event of Casualty or Condemnation, to verify the related
Lessee's compliance with the foregoing Section 10.3 or 10.4, as appropriate,
Lessor, the Agent, the Lender and their respective authorized representatives
may, upon five (5) Business Days' notice to such Lessee, make inspections of the
affected Leased Property with respect to (i) the extent of the Casualty or
Condemnation and (ii) the restoration and rebuilding of the related Building and
the Land. All actual and reasonable out-of-pocket costs of such inspections
incurred by Lessor, the Agent or the Lender will be paid by the related Lessee
promptly after written request. No such inspection shall unreasonably interfere
with the related Lessee's operations or the operations of any other occupant of
such Leased Property. None of the inspecting parties shall have any duty to make
any such inspection or inquiry and none of the inspecting parties shall incur
any liability or obligation by reason of making or not making any such
inspection or inquiry.
Section 10.6 Application of Payments.
All proceeds (except for payments under insurance policies maintained
other than pursuant to Article VIII of this Lease) received at any time by
Lessor, any Lessee or the Agent from any Governmental Authority or other Person
with respect to any Condemnation or Casualty to any Leased Property or any part
thereof or with respect to an Event of Loss or an Event of Taking, plus the
amount of any payment that would have been due from an insurer but for a
Lessee's self-insurance or deductibles ("Loss Proceeds"), shall (except to the
extent Section 10.9 applies) be applied as follows:
(a) In the event the related Lessee purchases such Leased Property
pursuant to Section 10.1 or Section 10.2, such Loss Proceeds
shall be applied as set forth in Section 10.1 or Section 10.2,
as the case may be;
(b) In the event of a Casualty at such time when no Event of
Default has occurred and is continuing and the related Lessee
is obligated to repair and rebuild such Leased Property
pursuant to Section 10.3, such Lessee may, in good faith and
subsequent to the date of such Casualty, certify to Lessor and
to the applicable insurer that no Event of Default has
occurred and is continuing, in which event the applicable
insurer shall pay the Loss Proceeds to such Lessee, unless the
estimated cost of restoration exceeds the greater of
$5,000,000 and 50% of the original cost of such Leased
Property, in which case the Loss Proceeds shall be paid to the
Agent (or Lessor if the Loans have been paid in full), and
shall be promptly released to the related Lessee upon
certification by such Lessee to Lessor and the Agent that such
Lessee has incurred costs in the amount requested to be
released for the repair and rebuilding of such Leased
Property;
(c) In the event of a Condemnation at such time when no Event of
Default has occurred and is continuing and the related Lessee
is obligated to repair and rebuild such Leased Property
pursuant to Section 10.4, Lessor shall, upon such Lessee's
request, assign to such Lessee Lessor's interest in any
applicable Awards; and
(d) As provided in Section 10.8, if such section is applicable.
During any period of repair or rebuilding pursuant to this Article X,
this Lease will remain in full force and effect and Basic Rent shall continue to
accrue and be payable without abatement or reduction. Each Lessee shall maintain
records setting forth information relating to the receipt and application of
payments in accordance with this Section 10.6. Such records shall be kept on
file by each Lessee at its offices and shall be made available to Lessor, the
Lender and the Agent upon request.
Section 10.7 Prosecution of Awards.
If any Condemnation shall occur, the party receiving the notice of such
Condemnation shall give to the other party and the Agent promptly, but in any
event within thirty (30) days after the occurrence thereof, written notice of
such occurrence and the date thereof, generally describing the nature and extent
of such Condemnation. With respect to any Event of Taking or any Condemnation,
the related Lessee shall control the negotiations with the relevant Governmental
Authority as to any proceeding in respect of which Awards are required, under
Section 10.6, to be assigned or released to such Lessee, unless an Event of
Default shall have occurred and be continuing, in which case (i) the Agent (or
Lessor if the Loans have been fully paid) shall control such negotiations; and
(ii) such Lessee hereby irrevocably assigns, transfers and sets over to Lessor
all rights of such Lessee to any Award on account of any Event of Taking or any
Condemnation and, if there will not be separate Awards to Lessor and such Lessee
on account of such Event of Taking or Condemnation, irrevocably authorizes and
empowers the Agent (or Lessor if the Loans have been fully paid) during the
continuance of an Event of Default, with full power of substitution, in the name
of such Lessee or otherwise (but without limiting the obligations of such Lessee
under this Article X), to file and prosecute what would otherwise be such
Lessee's claim for any such Award and to collect, receipt for and retain the
same. In any event Lessor and the Agent may participate in such negotiations,
and no settlement will be made without the prior consent of the Agent (or Lessor
if the Loans have been fully paid), not to be unreasonably withheld.
2. Notwithstanding the foregoing, each Lessee may prosecute, and Lessor
shall have no interest in, any claim with respect to such Lessee's personal
property and equipment not financed by or otherwise property of Lessor, business
interruption or similar award and such Lessee's relocation expenses.
Section 10.8 Application of Certain Payments Not Relating to an Event
of Taking.
In case of a requisition for temporary use of all or a portion of any
Leased Property which is not an Event of Taking, this Lease shall remain in full
force and effect with respect to such Leased Property, without any abatement or
reduction of Basic Rent, and the Awards for such Leased Property shall, unless
an Event of Default has occurred and is continuing, be paid to the related
Lessee.
Section 10.9 Other Dispositions.
Notwithstanding the foregoing provisions of this Article X, so long as
an Event of Default shall have occurred and be continuing, any amount that would
otherwise be payable to or for the account of, or that would otherwise be
retained by, Lessee pursuant to this Article X shall be paid to the Agent (or
Lessor if the Loans have been fully paid) as security for the obligations of the
Lessees under this Lease and, at such time thereafter as no Event of Default
shall be continuing, such amount shall be paid promptly to the related Lessee to
the extent not previously applied by Lessor or the Agent in accordance with the
terms of this Lease or the other Operative Documents.
Section 10.10 No Rent Abatement.
Rent shall not xxxxx hereunder by reason of any Casualty, any Event of
Loss, any Event of Taking or any Condemnation of any Leased Property, and each
Lessee shall continue to perform and fulfill all of such Lessee's obligations,
covenants and agreements hereunder notwithstanding such Casualty, Event of Loss,
Event of Taking or Condemnation until the Lease Termination Date and the full
payment of all obligations owing by any Lessee under any Operative Document.
Section 10.11 Construction Land Interests.
This Article X shall not apply with respect to any Construction Land
Interest during the Construction Term therefor except as set forth in the
Construction Agency Agreement.
ARTICLE XI INTEREST CONVEYED TO LESSEES
Each Lessee and Lessor intend that this Lease be treated, for
accounting purposes, as an operating lease. For all other purposes, each Lessee
and Lessor intend that the transaction represented by this Lease be treated as a
financing transaction; for such purposes, it is the intention of the parties
hereto (i) that this Lease be treated as a mortgage or deed of trust (whichever
is applicable in the jurisdictions in which the Leased Properties are located)
and security agreement, encumbering the Leased Properties, and that each Lessee,
as grantor, hereby grants to Lessor, as mortgagee or beneficiary and secured
party, or any successor thereto, a first and paramount Lien on each Leased
Property in which such Lessee has an interest, (ii) that Lessor shall have, as a
result of such determination, all of the rights, powers and remedies of a
mortgagee, deed of trust beneficiary or secured party available under Applicable
Law to take possession of and sell (whether by foreclosure or otherwise) any
Leased Property, (iii) that the effective date of such mortgage, security deed
or deed of trust shall be the effective date of this Lease, or the related Lease
Supplement, if later, (iv) that the recording of this Lease or a Lease
Supplement shall be deemed to be the recording of such mortgage, security deed
or deed of trust, and (v) that the obligations secured by such mortgage,
security deed or deed of trust shall include the Funded Amounts and all Basic
Rent and Supplemental Rent hereunder and all other obligations of and amounts
due from each Lessee hereunder and under the Operative Documents.
ARTICLE XII EVENTS OF DEFAULT
The following events shall constitute Events of Default (whether any
such event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) any Lessee shall fail to make any payment of Basic Rent when due,
and such failure shall continue for five or more days;
(b) any Lessee shall fail to make any payment of Rent (other than Basic
Rent and other than as set forth in clause (c)) or any other amount
payable hereunder or under any of the other Operative Documents
(other than Basic Rent and other than as set forth in clause (c)),
and such failure shall continue for a period of ten days;
(c) any Lessee shall fail to pay the Funded Amount, Leased Property
Balance or Lease Balance when due pursuant to Sections 10.1, 10.2,
14.1 or 14.2, or any Lessee shall fail to pay the Recourse
Deficiency Amount when required pursuant to Article XIV or the
Construction Agent shall fail to make any payment when due under
the Construction Agency Agreement;
(d) any Lessee shall fail to maintain insurance as required by Article
VIII hereof, and such failure shall continue until the earlier of
(i) fifteen (15) days after written notice thereof from Lessor and
(ii) the day immediately preceding the date on which any applicable
insurance coverage would otherwise lapse or terminate;
(e) any Consolidated Company shall fail to make when due (whether at
stated maturity, by acceleration, on demand or otherwise, and after
giving effect to any applicable grace period) any payment of
principal of or interest on any Indebtedness (other than the
Obligations) exceeding $20,000,000 individually or in the
aggregate; or any Consolidated Company shall fail to observe or
perform within any applicable grace period any covenants or
agreements contained in any agreements or instruments relating to
any of its Indebtedness (including the Synthetic Lease and any
guaranty thereof) exceeding $20,000,000 individually or in the
aggregate, or any other event shall occur if the effect of such
failure or other event is to accelerate, or to permit the holder of
such Indebtedness or any other Person to accelerate, the maturity
of such Indebtedness; or any such Indebtedness shall be required to
be prepaid (other than by a regularly scheduled required
prepayment) in whole or in part prior to its stated maturity;
(f) any Lessee, the Guarantor or any Consolidated Company shall (i)
apply for or consent to the appointment of a receiver, trustee or
liquidator of itself or of its property, (ii) be unable, or admit
in writing inability, to pay its debts as they mature, (iii) make a
general assignment for the benefit of creditors, (iv) be
adjudicated a bankrupt or insolvent, (v) file a voluntary petition
in bankruptcy, or a petition or answer seeking reorganization or an
arrangement with creditors to take advantage of any insolvency law
or an answer admitting the material allegations of a bankruptcy,
reorganization or insolvency petition filed against it, (vi) take
corporate action for the purpose of effecting any of the foregoing,
or (vii) have an order for relief entered against it in any
proceeding under any bankruptcy law;
(g) an order, judgment or decree shall be entered, without the
application, approval or consent of any Lessee, the Guarantor or
any Consolidated Company, by any court of competent jurisdiction,
approving a petition seeking reorganization of such entity or
appointing a receiver, trustee or liquidator of such entity or of
all or a substantial part of its assets, and such order, judgment
or decree shall continue unstayed and in effect for any period of
60 consecutive days;
(h) any representation or warranty by any Lessee or the Guarantor in
any Operative Document or in any certificate or document delivered
to Lessor, the Agent or the Lender pursuant to any Operative
Document shall have been incorrect in any material respect when
made;
(i) the Guarantor shall repudiate or terminate the Guaranty Agreement,
or the Guaranty Agreement shall at any time cease to be in full
force and effect or cease to be the legal, valid and binding
obligation of the Guarantor, or the Guarantor shall fail in any
material respect to timely perform or observe any covenant,
condition or agreement to be performed or observed by it under any
Operative Document to which it is a party and such failure shall
continue for a period of 30 days after the Guarantor's receipt of
written notice hereof from Lessor, the Agent or the Lender;
(j) any Lessee shall fail in any Material respect to timely, perform or
observe any covenant, condition or agreement (not included in
clause (a), (b), (c), (d), (e), (f), (g), (h) or (i) of this
Article XII) to be performed or observed by it hereunder or under
any other Operative Document and such failure shall continue for a
period of 30 days after such Lessee's receipt of written notice
thereof from Lessor, the Agent or the Lender;
(k) any Construction Agency Event of Default shall occur;
(l) a Plan of a Consolidated Company or a Plan subject to Title IV of
ERISA of any of its ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan,
Section 412 of the Tax Code or Section 302 of ERISA for any
plan year or a waiver of such standard is sought or granted
with respect to such Plan under applicable law, the terms of
such Plan or Section 412 of the Tax Code or Section 303 of
ERISA; or
(ii) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms of
such Plan; or
(iii) shall require a Consolidated Company to provide security under
applicable law, the terms of such Plan, Section 401 or 412 of
the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to a Consolidated Company under
applicable law, the terms of such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver,
termination or other event a liability to the PBGC or a Plan
that would have a Materially Adverse Effect;
(m) a final judgment or final order for the payment of money in excess
of $2,500,000 individually or in the aggregate or otherwise having
a Materially Adverse Effect shall be rendered against Dollar or any
other Consolidated Company and such judgment or order shall
continue unsatisfied (in the case of a money judgment) and in
effect for a period of 30 days during which execution shall not be
effectively stayed or deferred (whether by action of a court, by
agreement or otherwise);
(n) if Dollar ceases to own all of the Voting Stock of any Subsidiary
Guarantor; or
(o) any "person" or "group" (within the meaning of Section 13(d) and
14(d)(2) of the Exchange Act) other than the Xxxxxx Family shall
become the "beneficial owner(s)" (as defined in Rule 13d-3) of more
than thirty percent (30%) of the shares of the outstanding common
stock of Dollar entitled to vote for members of Dollar's board of
directors, or (b) any event or condition shall occur or exist
which, pursuant to the terms of any change of control provision,
requires or permits the holder(s) of Indebtedness of any
Consolidated Company which individually or in the aggregate is
equal to or exceeds $20,000,000 to require that such Indebtedness
be redeemed, repurchased, defeased, prepaid, or repaid, in whole or
in part, or the maturity of such Indebtedness to be accelerated in
any respect.
ARTICLE XIII ENFORCEMENT
Section 13.1 Remedies.
Upon the occurrence and during the continuance of any Event of Default,
Lessor may do one or more of the following as Lessor in its sole discretion
shall determine, without limiting any other right or remedy Lessor may have on
account of such Event of Default (including, without limitation, the obligation
of the Lessees to purchase the Leased Properties as set forth in Section 14.3):
(a) Lessor may, by notice to Dollar, rescind or terminate this Lease as
of the date specified in such notice; however, (A) no reletting,
reentry or taking of possession of any Leased Property by Lessor
will be construed as an election on Lessor's part to terminate this
Lease unless a written notice of such intention is given to Dollar,
(B) notwithstanding any reletting, reentry or taking of possession,
Lessor may at any time thereafter elect to terminate this Lease for
a continuing Event of Default, and (C) no act or thing done by
Lessor or any of its agents, representatives or employees and no
agreement accepting a surrender of any Leased Property shall be
valid unless the same be made in writing and executed by Lessor;
(b) Lessor may (i) demand that the Lessees, and the Lessees shall upon
the written demand of Lessor, return the Leased Properties promptly
to Lessor in the manner and condition required by, and otherwise in
accordance with all of the provisions of, Articles VI and XIV
hereof as if the Leased Properties were being returned at the end
of the Lease Term, and Lessor shall not be liable for the
reimbursement of any Lessee for any costs and expenses incurred by
such Lessee in connection therewith and (ii) without prejudice to
any other remedy which Lessor may have for possession of the Leased
Properties, and to the extent and in the manner permitted by
Applicable Law, enter upon any Leased Property and take immediate
possession of (to the exclusion of the related Lessee) any Leased
Property or any part thereof and expel or remove the related Lessee
and any other person who may be occupying such Leased Property, by
summary proceedings or otherwise, all without liability to any
Lessee for or by reason of such entry or taking of possession,
whether for the restoration of damage to property caused by such
taking or otherwise and, in addition to Lessor's other damages, the
Lessees shall be responsible for the actual and reasonable costs
and expenses of reletting, including brokers' fees and the
reasonable out-of-pocket costs of any alterations or repairs made
by Lessor;
(c) Lessor may (i) sell all or any part of any Leased Property at
public or private sale, as Lessor may determine, free and clear of
any rights of any Lessee and without any duty to account to any
Lessee with respect to such action or inaction or any proceeds with
respect thereto (except to the extent required by Applicable Law or
clause (ii) below if Lessor shall elect to exercise its rights
thereunder) in which event the related Lessee's obligation to pay
Basic Rent for such Leased Property hereunder for periods
commencing after the date of such sale shall be terminated or
proportionately reduced, as the case may be; and (ii) if Lessor
shall so elect, demand that the Lessees, jointly and severally, pay
to Lessor, and the Lessees, jointly and severally, shall pay to
Lessor, on the date of such sale, as liquidated damages for loss of
a bargain and not as a penalty (the parties agreeing that Lessor's
actual damages would be difficult to predict, but the
aforementioned liquidated damages represent a reasonable
approximation of such amount) (in lieu of Basic Rent due for
periods commencing on or after the Payment Date coinciding with
such date of sale (or, if the sale date is not a Payment Date, the
Payment Date next preceding the date of such sale)), an amount
equal to (a) the excess, if any, of (1) the sum of (A) all Rent due
and unpaid to and including such Payment Date and (B) the Lease
Balance, computed as of such date, over (2) the net proceeds of
such sale (that is, after deducting all out-of-pocket costs and
expenses incurred by Lessor, the Agent or any Lender incident to
such conveyance (including, without limitation, all costs,
expenses, fees, premiums and taxes described in Section 14.5(b)));
plus (b) interest at the Overdue Rate on the foregoing amount from
such Payment Date until the date of payment;
(d) Lessor may, at its option, not terminate this Lease, and continue
to collect all Basic Rent, Supplemental Rent, and all other amounts
(including, without limitation, the Funded Amount) due Lessor
(together with all costs of collection) and enforce the Lessees'
obligations under this Lease as and when the same become due, or
are to be performed, and at the option of Lessor, upon any
abandonment of any Leased Property by Lessee or re-entry of same by
Lessor, Lessor may, in its sole and absolute discretion, elect not
to terminate this Lease with respect thereto and may make such
reasonable alterations and necessary repairs in order to relet such
Leased Property, and relet such Leased Property or any part thereof
for such term or terms (which may be for a term extending beyond
the term of this Lease) and at such rental or rentals and upon such
other terms and conditions as Lessor in its reasonable discretion
may deem advisable; and upon each such reletting all rentals
actually received by Lessor from such reletting shall be applied to
the Lessees' obligations hereunder in such order, proportion and
priority as Lessor may elect in Lessor's sole and absolute
discretion; it being agreed that under no circumstances shall any
Lessee benefit from its default from any increase in market rents.
If such rentals received from such reletting during any Rent Period
are less than the Rent to be paid during that Rent Period by the
Lessees hereunder, the Lessees shall pay any deficiency, as
calculated by Lessor, to Lessor on the Payment Date for such Rent
Period;
(e) If any Leased Property has not been sold, Lessor may, whether or
not Lessor shall have exercised or shall thereafter at any time
exercise any of its rights under paragraph (b), (c) or (d) of this
Article XIII with respect to such Leased Property, demand, by
written notice to the related Lessee specifying a date (the "Final
Rent Payment Date") not earlier than 30 days after the date of such
notice, that such Lessee purchase, on the Final Rent Payment Date,
such Leased Property in accordance with the provisions of Sections
14.2, 14.4 and 14.5; provided, however, that (1) such purchase
shall occur on the date set forth in such notice, notwithstanding
the provision in Section 14.2 calling for such purchase to occur on
the Lease Termination Date; and (2) Lessor's obligations under
Section 14.5(a) shall be limited to delivery of a special or
limited warranty deed and quit claim xxxx of sale of such Leased
Property, without recourse or warranty, but free and clear of
Lessor Liens;
(f) Lessor may exercise any other right or remedy that may be available
to it under Applicable Law, or proceed by appropriate court action
(legal or equitable) to enforce the terms hereof or to recover
damages for the breach hereof. Separate suits may be brought to
collect any such damages for any Rent Period(s), and such suits
shall not in any manner prejudice Lessor's right to collect any
such damages for any subsequent Rent Period(s), or Lessor may defer
any such suit until after the expiration of the Lease Term, in
which event such suit shall be deemed not to have accrued until the
expiration of the Lease Term; or
(g) Lessor may retain and apply against Lessor's damages all sums which
Lessor would, absent such Event of Default, be required to pay to,
or turn over to, a Lessee pursuant to the terms of this Lease.
Section 13.2 Remedies Cumulative; No Waiver; Consents.
To the extent permitted by, and subject to the mandatory requirements
of, Applicable Law, each and every right, power and remedy herein specifically
given to Lessor or otherwise in this Lease shall be cumulative and shall be in
addition to every other right, power and remedy herein specifically given or now
or hereafter existing at law, in equity or by statute, and each and every right,
power and remedy whether specifically herein given or otherwise existing may be
exercised from time to time and as often and in such order as may be deemed
expedient by Lessor, and the exercise or the beginning of the exercise of any
power or remedy shall not be construed to be a waiver of the right to exercise
at the same time or thereafter any right, power or remedy. No delay or omission
by Lessor in the exercise of any right, power or remedy or in the pursuit of any
remedy shall impair any such right, power or remedy or be construed to be a
waiver of any default on the part of any Lessee or to be an acquiescence
therein. Lessor's consent to any request made by any Lessee shall not be deemed
to constitute or preclude the necessity for obtaining Lessor's consent, in the
future, to all similar requests. No express or implied waiver by Lessor of any
Event of Default shall in any way be, or be construed to be, a waiver of any
future or subsequent Potential Event of Default or Event of Default. To the
extent permitted by Applicable Law, each Lessee hereby waives any rights now or
hereafter conferred by statute or otherwise that may require Lessor to sell,
lease or otherwise use any Leased Property or part thereof in mitigation of
Lessor's damages upon the occurrence of an Event of Default or that may
otherwise limit or modify any of Lessor's rights or remedies under this Article
XIII.
ARTICLE XIV. SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL
Section 14.1 Lessee's Option to Purchase.
(a) Subject to the terms, conditions and provisions set forth in this
Article XIV, the Lessees shall have the option (the "Purchase
Option"), to be exercised as set forth below, to purchase from
Lessor, Lessor's interest in all of the Leased Properties; provided
that, except as set forth in paragraph (b) below, such option must
be exercised with respect to all, but not less than all, of the
Leased Properties under all of the Lease Supplements. Such option
must be exercised by written notice by Dollar to Lessor not later
than twelve months prior to the Lease Termination Date which notice
shall be irrevocable; such notice shall specify the date that such
purchase shall take place, which date shall be a date occurring not
less than thirty (30) days after such notice or the Lease
Termination Date (whichever is earlier). If the Purchase Option is
exercised pursuant to the foregoing, then, subject to the
provisions set forth in this Article XIV, on the applicable
purchase date or the Lease Termination Date, as the case may be,
Lessor shall convey to each Lessee, by special warranty deed and
xxxx of sale, without recourse or warranty (other than as to the
absence of Lessor Liens) and each Lessee shall purchase from
Lessor, Lessor's interest in the Leased Properties leased by such
Lessee.
(b) Subject to the terms, conditions and provisions set forth in this
Article XIV, each Lessee shall have the option (the "Partial
Purchase Option"), to be exercised as set forth below, to purchase
from Lessor Lessor's interest in any Leased Property leased by such
Lessee; provided that such option may be exercised only if, after
giving effect thereto, there are 50 Leased Properties subject to
this Lease, unless it is exercised with respect to all Leased
Properties as set forth in paragraph (a) above. Such option must be
exercised by written notice to Lessor at any time during the term
of the Lease, which notice shall be irrevocable; such notice shall
specify the Leased Property to be purchased and the date that such
purchase shall take place, which date shall be a date occurring not
less than thirty (30) days after such notice, provided that no
Partial Purchase Option may be exercised during the last year of
the Lease Term. If a Partial Purchase Option is exercised pursuant
to the foregoing, subject to the provisions set forth in this
Article XIV, on the applicable purchase date or the Lease
Termination Date, as the case may be, Lessor shall convey to the
related Lessee, without recourse or warranty (other than as to the
absence of Lessor Liens) and such Lessee shall purchase from
Lessor, Lessor's interest in the Leased Property that is the
subject of such Partial Purchase Option pursuant to Section 14.5.
Section 14.2 Conveyance to Lessee.
Unless (a) the Lessees shall have properly exercised the Purchase
Option and purchased the Leased Properties pursuant to Section 14.1(a) or
14.1(b) hereof, or (b) the Lessees shall have properly exercised the Remarketing
Option and shall have fulfilled all of the conditions of Section 14.6 hereof,
then, subject to the terms, conditions and provisions set forth in this Article
XIV, each Lessee shall purchase from Lessor, and Lessor shall convey to each
Lessee, on the Lease Termination Date all of Lessor's interest in the Leased
Properties leased to such Lessee. Any Lessee may designate, in a notice given to
Lessor not less than ten (10) Business Days prior to the closing of such
purchase, or any purchase pursuant to Section 14.1(a) or (b),(time being of the
essence), the transferee to whom the conveyance shall be made (if other than to
such Lessee), in which case such conveyance shall (subject to the terms and
conditions set forth herein) be made to such designee; provided, however, that
such designation of a transferee shall not cause any Lessee to be released,
fully or partially, from any of its obligations under this Lease.
Section 14.3 Acceleration of Purchase Obligation.
The Lessees shall be obligated to purchase Lessor's interest in the
Leased Properties immediately, automatically and without notice upon the
occurrence of any Event of Default specified in clause (f) or (g) of Article
XII, for the purchase price set forth in Section 14.4. Upon the occurrence and
during the continuance of any other Event of Default, the Lessees shall be
obligated to purchase Lessor's interest in the Leased Properties for the
purchase price set forth in Section 14.4 upon notice of such obligation from
Lessor.
Section 14.4 Determination of Purchase Price.
Upon the purchase by the Lessees of Lessor's interest in the Leased
Properties upon the exercise of the Purchase Option or pursuant to Section 14.2
or 14.3, the aggregate purchase price for all of the Leased Properties shall be
an amount equal to the Lease Balance as of the closing date for such purchase,
plus any amount due pursuant to Section 7.5(f) of the Master Agreement as a
result of such purchase. Upon the purchase by a Lessee of Lessor's interest in a
Leased Property upon the exercise of a Partial Purchase Option, the purchase
price for such Leased Property shall be an amount equal to the Leased Property
Balance for such Leased Property as of the closing date for such purchase, plus
any amount due pursuant to Section 7.5(f) of the Master Agreement as the result
of such purchase.
Section 14.5 Purchase Procedure.
If a Lessee shall purchase Lessor's interest in a Leased Property
pursuant to any provision of this Lease, (i) such Lessee shall accept from
Lessor and Lessor shall convey such Leased Property by a duly executed and
acknowledged special warranty deed and quit claim xxxx of sale of such a Leased
Property in recordable form, (ii) upon the date fixed for any purchase of
Lessor's interest in Leased Property hereunder, the related Lessee(s) shall pay
to the order of the Agent (or Lessor if the Loans have been paid in full) the
Lease Balance or Leased Property Balance, as applicable, plus any amount due
pursuant to Section 7.5 of the Master Agreement as a result of such purchase by
wire transfer of immediately available funds, (iii) Lessor will execute and
deliver to the related Lessee such other documents, including releases,
affidavits, termination agreements and termination statements, as may be legally
required or as may be reasonably requested by Lessee in order to effect such
conveyance, free and clear of Lessor Liens and the Liens of the Operative
Documents and (iv) if such Leased Property is subject to a Ground Lease, Lessor
will execute and deliver to the related Lessee an assignment or termination of
such Ground Lease, as directed by such Lessee, in such form as may be reasonably
requested by such Lessee, and such Lessee shall pay any amounts due with respect
thereto under such Ground Lease.
(a) Each Lessee shall, at such Lessee's sole cost and expense, obtain
all required governmental and regulatory approval and consents and
in connection therewith shall make such filings as required by
Applicable Law; in the event that Lessor is required by Applicable
Law to take any action in connection with such purchase and sale,
the Lessees shall pay prior to transfer all reasonable
out-of-pocket costs incurred by Lessor in connection therewith.
Without limiting the foregoing, all costs incident to such
conveyance, including, without limitation, each Lessee's attorneys'
fees, Lessor's attorneys' fees, commissions, each Lessee's and
Lessor's escrow fees, recording fees, title insurance premiums and
all applicable documentary transfer or other transfer taxes and
other taxes required to be paid in order to record the transfer
documents that might be imposed by reason of such conveyance and
the delivery of such deed shall be borne entirely by and paid by
the Lessees.
(b) Upon expiration or termination of this Lease resulting in
conveyance of Lessor's interest in the title to the Leased
Properties to the Lessees, there shall be no apportionment of rents
(including, without limitation, water rents and sewer rents),
taxes, insurance, utility charges or other charges payable with
respect to the Leased Properties, all of such rents, taxes,
insurance, utility or other charges due and payable with respect to
the Leased Properties prior to termination being payable by the
Lessees hereunder and all due after such time being payable by the
Lessees as the then owners of the Leased Properties.
Section 14.6 Option to Remarket.
Subject to the fulfillment of each of the conditions set forth in this
Section 14.6, the Lessees shall have the option to market all of, but not less
than all of, the Leased Properties for Lessor (the "Remarketing Option").
The Lessees' effective exercise and consummation of the Remarketing
Option shall be subject to the due and timely fulfillment of each of the
following provisions, the failure of any of which, unless waived in writing by
Lessor and the Lender, shall render the Remarketing Option and the Lessees'
exercise thereof null and void, in which event, each Lessee shall be obligated
to perform its obligations under Section 14.2.
(a) Not later than twelve months prior to the Lease Termination Date,
Dollar shall give to Lessor and the Agent written notice of the
Lessees' exercise of the Remarketing Option.
(b) Not later than ten (10) Business Days prior to the Lease
Termination Date, each Lessee shall deliver to Lessor and the Agent
an environmental assessment of each Leased Property leased by it
dated not later than forty-five (45) days prior to the Lease
Termination Date. Such environmental assessment shall be prepared
by an environmental consultant selected by the related Lessee and
reasonably satisfactory to the Agent, shall be in form, detail and
substance reasonably satisfactory to the Agent, and shall otherwise
indicate the environmental condition of each Leased Property to be
the same as described in the related Environmental Audit.
(c) On the date of Dollar's notice to Lessor and the Agent of the
Lessees' exercise of the Remarketing Option, each of the
Construction Conditions shall have been timely satisfied and no
Event of Default or Potential Event of Default shall exist, and
thereafter, no Event of Default or Potential Event of Default shall
exist under this Lease.
(d) Each Lessee shall have completed all Alterations, restoration and
rebuilding of the Leased Properties leased by it pursuant to
Sections 6.1, 6.2, 10.3 and 10.4 (as the case may be) and shall
have fulfilled in all material respects all of the conditions and
requirements in connection therewith pursuant to said Sections, in
each case by the date on which Lessor and the Agent receive
Dollar's notice of the Lessees' exercise of the Remarketing Option
(time being of the essence), regardless of whether the same shall
be within such Lessee's control.
(e) Each Lessee shall promptly provide any maintenance records relating
to each Leased Property leased by it to Lessor, the Agent and any
potential purchaser, and shall otherwise do all things necessary to
deliver possession of such Leased Property to the potential
purchaser at the appropriate closing date. Each Lessee shall allow
Lessor, the Agent and any potential purchaser reasonable access
during normal business hours to any Leased Property for the purpose
of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the
Leased Properties leased by it in accordance with Section 14.8
hereof.
(g) In connection with any such sale of the Leased Properties, each
Lessee will provide to the purchaser all customary "seller's"
indemnities requested by the potential purchaser (taking into
account the location and nature of the Leased Properties),
representations and warranties regarding title, absence of Liens
(except Lessor Liens) and the condition of the Leased Properties,
including, without limitation, an environmental indemnity. Each
Lessee shall fulfill all of the requirements set forth in clause
(b) of Section 14.5, and such requirements are incorporated herein
by reference. As to Lessor, any such sale shall be made on an "as
is, with all faults" basis without representation or warranty by
Lessor, other than the absence of Lessor Liens.
(h) In connection with any such sale of Leased Properties, each Lessee
shall pay directly, and not from the sale proceeds, all prorations,
credits, costs and expenses of the sale of the Leased Properties
leased by it, whether incurred by Lessor, any Lender, the Agent or
such Lessee, including without limitation, to the extent not paid
by the purchaser, the cost of all title insurance, surveys,
environmental reports, appraisals, transfer taxes, Lessor's and the
Agent's attorneys' fees, such Lessee's attorneys' fees,
commissions, escrow fees, recording fees, and all applicable
documentary and other transfer taxes.
(i) The Lessees, jointly and severally, shall pay to the Agent on the
Lease Termination Date (or to such other Person as Agent shall
notify Lessee in writing, or in the case of Supplemental Rent, to
the Person entitled thereto) an amount equal to the Recourse
Deficiency Amount, plus all accrued and unpaid Basic Rent and
Supplemental Rent, and all other amounts hereunder which have
accrued prior to or as of such date, in the type of funds specified
in Section 3.3 hereof.
If the Lessees have exercised the Remarketing Option, the following
additional provisions shall apply: During the period commencing on the date
twelve months prior to the scheduled expiration of the Lease Term, one or more
of the Lessees shall, as nonexclusive agent for Lessor, use commercially
reasonable efforts to sell Lessor's interest in the Leased Properties and will
attempt to obtain the highest purchase price therefor. All such marketing of the
Leased Properties shall be at the Lessees' sole expense. Lessee promptly shall
submit all bids to Lessor and the Agent and Lessor and the Agent will have the
right to review the same and the right to submit any one or more bids. All bids
shall be on an all-cash basis. In no event shall such bidder be Lessee or any
Subsidiary or Affiliate of Lessee. The written offer must specify the Lease
Termination Date as the closing date. If, and only if, the aggregate selling
price (net of closing costs and prorations, as reasonably estimated by the
Agent) is less than the difference between the Lease Balance at such time minus
the Recourse Deficiency Amount, then Lessor or the Agent may, in its sole and
absolute discretion, by notice to Dollar, reject such offer to purchase, in
which event the parties will proceed according to the provisions of Section 14.7
hereof. If neither Lessor nor the Agent rejects such purchase offer as provided
above, the closing of such purchase of the Leased Properties by such purchaser
shall occur on the Lease Termination Date, contemporaneously with the Lessees'
surrender of the Leased Properties in accordance with Section 14.8 hereof, and
the gross proceeds of the sale (i.e., without deduction for any marketing,
closing or other costs, prorations or commissions) shall be paid directly to the
Agent (or Lessor if the Funded Amounts have been fully paid); provided, however,
that if the sum of the gross proceeds from such sale plus the Recourse
Deficiency Amount paid by the Lessees on the Lease Termination Date pursuant to
Section 14.6(i), minus any and all reasonable costs and expenses (including
broker fees, appraisal costs, reasonable legal fees and transfer taxes) incurred
by the Agent or Lessor in connection with the marketing of the Leased Properties
or the sale thereof exceeds the Lease Balance as of such date, then the excess
shall be paid to Dollar on the Lease Termination Date. No Lessee shall have the
right, power or authority to bind Lessor in connection with any proposed sale of
the Leased Properties.
Section 14.7 Rejection of Sale.
Notwithstanding anything contained herein to the contrary, if Lessor or
the Agent rejects the purchase offer for the Leased Properties as provided in
(and subject to the conditions set forth in) Section 14.6, then (a) the Lessees,
jointly and severally, shall pay to the Agent the Recourse Deficiency Amount
pursuant to Section 14.6(i), (b) Lessor shall retain title to the Leased
Properties, and (c) in addition to Lessees' other obligations hereunder, Lessees
will reimburse Lessor and the Agent, within ten (10) Business Days after written
request, for all reasonable costs and expenses incurred by Lessor or Agent
during the period ending on the first anniversary of the Lease Termination Date
in connection with the marketing, sale, closing or transfer of the Leased
Properties, which obligation shall survive the Lease Termination Date and the
termination or expiration of this Lease.
Section 14.8 Return of Leased Property.
If Lessor retains title to any Leased Property pursuant to Section 14.7
hereof, then each Lessee shall, on the Lease Termination Date, and at its own
expense, return possession of the Leased Properties leased by it to Lessor for
retention by Lessor or, if the Lessees properly exercise the Remarketing Option
and fulfill all of the conditions of Section 14.6 hereof and neither Lessor nor
the Agent rejects such purchase offer pursuant to Section 14.6, then each Lessee
shall, on such Lease Termination Date, and at its own cost, transfer possession
of the Leased Properties leased by it to the independent purchaser thereof, in
each case by surrendering the same into the possession of Lessor or such
purchaser, as the case may be, free and clear of all Liens other than Lessor
Liens, in as good condition as it was on the Completion Date therefor in the
case of new Construction, or the Closing Date therefor in each other case (as
modified by Alterations permitted by this Lease), ordinary wear and tear
excepted, and in compliance in all material respects with Applicable Law. Each
Lessee shall, on and within a reasonable time before and after the Lease
Termination Date, cooperate with Lessor and the independent purchaser of any
Leased Property leased by such Lessee in order to facilitate the ownership and
operation by such purchaser of such Leased Property after the Lease Termination
Date, which cooperation shall include the following, all of which such Lessee
shall do on or before the Lease Termination Date or as soon thereafter as is
reasonably practicable: providing all books and records regarding the related
Lessee's maintenance of such Leased Property and all know-how, data and
technical information relating thereto, providing a copy of the Plans and
Specifications, granting or assigning all licenses (to the extent assignable)
necessary for the operation and maintenance of such Leased Property, and
cooperating in seeking and obtaining all necessary Governmental Action. Each
Lessee shall have also paid the cost of all Alterations commenced prior to the
Lease Termination Date. The obligations of such Lessee under this Article XIV
shall survive the expiration or termination of this Lease.
Section 14.9 Renewal.
Subject to the conditions set forth herein, Dollar may, by written
notice to Lessor and the Agent given not later than twelve months and not
earlier than sixteen months, prior to the then scheduled Lease Termination Date,
request the renewal of this Lease, for five years in the case of the first
renewal term and five years in the case of the second renewal term, in each case
commencing on the date following such Lease Termination Date. No later than the
date that is 45 days after the date the request to renew has been delivered to
each of Lessor and the Agent, the Agent will notify Dollar whether or not Lessor
and the Lender consent to such renewal request (which consent, in the case of
Lessor and the Lender, may be granted or denied in their sole discretion, and
may be conditioned on such conditions precedent as may be specified by Lessor
and the Lender). If the Agent fails to respond within such time frame, such
failure shall be deemed to be a rejection of such request. If the Agent notifies
Dollar of Lessor's and the Lender's consent to such renewal, such renewal shall
be effective.
ARTICLE XV. LESSEE'S EQUIPMENT
After any repossession of any Leased Property (whether or not this
Lease has been terminated), the related Lessee, at its expense and so long as
such removal of such trade fixture, personal property or equipment shall not
result in a violation of Applicable Law, shall, within a reasonable time after
such repossession or within sixty (60) days after such Lessee's receipt of
Lessor's written request (whichever shall first occur), remove all of such
Lessee's trade fixtures, personal property and equipment from such Leased
Property (to the extent that the same can be readily removed from such Leased
Property without causing material damage to such Leased Property); provided,
however, that such Lessee shall not remove any such trade fixtures, personal
property or equipment that (i) has been financed by Lessor under the Operative
Documents or otherwise constituting Leased Property (or that constitutes a
replacement of such property) or (ii) with respect to which Lessor notifies such
Lessee that it is exercising the purchase option with respect thereto, which
purchase option each Lessee hereby grants to Lessor (in which case, Lessor shall
pay to such Lessee the fair market value of such trade fixture, personal
property or equipment on such date of repossession (as determined by mutual
agreement of Lessor and such Lessee or, if no mutual agreement is promptly
achieved, by an appraiser reasonably acceptable to Lessor and such Lessee) and
such Lessee shall execute and deliver a xxxx of sale therefor to Lessor),
provided that the purchase option set forth in this clause (ii) shall not apply
to any Lessee's inventory or to any personal property of any Lessee not used or
useful in connection with the Leased Property. Any of a Lessee's trade fixtures,
personal property and equipment not so removed by such Lessee within such period
shall be considered abandoned by such Lessee, and title thereto shall without
further act vest in Lessor, and may be appropriated, sold, destroyed or
otherwise disposed of by Lessor without notice to any Lessee and without
obligation to account therefor and the related Lessee will pay Lessor, upon
written demand, all reasonable costs and expenses incurred by Lessor in
removing, storing or disposing of the same and all costs and expenses incurred
by Lessor to repair any damage to such Leased Property caused by such removal.
Each Lessee will immediately repair at its expense all damage to such Leased
Property caused by any such removal (unless such removal is effected by Lessor,
in which event such Lessee shall pay all reasonable costs and expenses incurred
by Lessor for such repairs). Lessor shall have no liability in exercising
Lessor's rights under this Article XV except as set forth in clause (ii) of the
first sentence hereof, nor shall Lessor be responsible for any loss of or damage
to any Lessee's personal property and equipment.
ARTICLE XVI RIGHT TO PERFORM FOR LESSEE
If any Lessee shall fail to perform or comply with any of its
agreements contained herein, Lessor, upon notice to Dollar or such Lessee, may
perform or comply with such agreement, and Lessor shall not thereby be deemed to
have waived any default caused by such failure, and the amount of such payment
and the amount of the expenses of Lessor (including actual and reasonable
attorneys' fees and expenses) incurred in connection with such payment or the
performance of or compliance with such agreement, as the case may be, shall be
deemed Supplemental Rent, payable by the related Lessee to Lessor within thirty
(30) days after written demand therefor.
ARTICLE XVII, MISCELLANEOUS
Section 17.1 Reports.
To the extent required under Applicable Law and to the extent it is
reasonably practical for a Lessee to do so, such Lessee shall prepare and file
in timely fashion, or, where such filing is required to be made by Lessor or it
is otherwise not reasonably practical for a Lessee to make such filing, Lessee
shall prepare and deliver to Lessor (with a copy to the Agent) within a
reasonable time prior to the date for filing and Lessor shall file, any material
reports with respect to the condition or operation of such Leased Property that
shall be required to be filed with any Governmental Authority.
Section 17.2 Binding Effect; Successors and Assigns; Survival.
The terms and provisions of this Lease, and the respective rights and
obligations hereunder of Lessor and the Lessees, shall be binding upon their
respective successors, legal representatives and assigns (including, in the case
of Lessor, any Person to whom Lessor may transfer any Leased Property or any
interest therein in accordance with the provisions of the Operative Documents),
and inure to the benefit of their respective permitted successors and assigns,
and the rights granted hereunder to the Agent and the Lender shall inure
(subject to such conditions as are contained herein) to the benefit of their
respective permitted successors and assigns. Each Lessee hereby acknowledges
that Lessor has assigned all of its right, title and interest to, in and under
this Lease to the Agent and the Lender pursuant to the Loan Agreement and
related Operative Documents, and that all of Lessor's rights hereunder may be
exercised by the Agent.
Section 17.3 Quiet Enjoyment.
Lessor covenants that it will not interfere in the related Lessee's or
any of its permitted sublessees' quiet enjoyment of the Leased Properties in
accordance with this Lease during the Lease Term, so long as no Event of Default
has occurred and is continuing. Such right of quiet enjoyment is independent of,
and shall not affect, Lessor's rights otherwise to initiate legal action to
enforce the obligations of the Lessees under this Lease.
Section 17.4 Notices.
Unless otherwise specified herein, all notices, offers, acceptances,
rejections, consents, requests, demands or other communications to or upon the
respective parties hereto shall be in writing and shall be deemed to have been
given as set forth in Section 8.2 of the Master Agreement. All such notices,
offers, acceptances, rejections, consents, requests, demands or other
communications shall be addressed as follows or to such other address as any of
the parties hereto may designate by written notice:
If to Lessor: Atlantic Financial Group, Ltd.
c/x Xxxxxx & Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx
If to Dollar
or any other Lessee: Dollar General Corporation
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Financial Officer
with a copy to: General Counsel
000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
If to Agent: SunTrust Bank, Nashville, N.A.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
with a copy to: SunTrust Equitable Securities
Corporation
000 Xxxxxxxxx Xxxxxx, 24th Floor
MC 3951
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
If to the Lender, to the address provided in the Master Agreement.
Section 17.5 Severability.
Any provision of this Lease that shall be prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction, and Lessee shall remain liable to perform its obligations
hereunder except to the extent of such unenforceability. To the extent permitted
by Applicable Law, each Lessee hereby waives any provision of law that renders
any provision hereof prohibited or unenforceable in any respect.
Section 17.6 Amendment; Complete Agreements.
Neither this Lease nor any of the terms hereof may be terminated,
amended, supplemented, waived or modified orally, except by an instrument in
writing signed by Lessor and Dollar in accordance with the provisions of Section
8.4 of the Master Agreement. This Lease, together with the applicable Lease
Supplement and the other Operative Documents, is intended by the parties as a
final expression of their lease agreement and as a complete and exclusive
statement of the terms thereof, all negotiations, considerations and
representations between the parties having been incorporated herein and therein.
No course of prior dealings between the parties or their officers, employees,
agents or Affiliates shall be relevant or admissible to supplement, explain, or
vary any of the terms of this Lease or any other Operative Document. Acceptance
of, or acquiescence in, a course of performance rendered under this or any prior
agreement between the parties or their Affiliates shall not be relevant or
admissible to determine the meaning of any of the terms of this Lease or any
other Operative Document. No representations, undertakings, or agreements have
been made or relied upon in the making of this Lease other than those
specifically set forth in the Operative Documents. B.
Section 17.7 Construction.
This Lease shall not be construed more strictly against any one party,
it being recognized that both of the parties hereto have contributed
substantially and materially to the preparation and negotiation of this Lease.
Section 17.8 Headings.
The Table of Contents and headings of the various Articles and Sections
of this Lease are for convenience of reference only and shall not modify, define
or limit any of the terms or provisions hereof.
Section 17.9 Counterparts.
This Lease may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 17.10 GOVERNING LAW.
THIS LEASE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, EXCEPT AS TO MATTERS
RELATING TO THE CREATION OF THE LEASEHOLD OR MORTGAGE ESTATES HEREUNDER, AND THE
EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT THERETO, WHICH SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATES IN WHICH SUCH ESTATES ARE
LOCATED.
Section 17.11 Discharge of Lessee's Obligations by its Subsidiaries or
Affiliates.
Lessor agrees that performance of any Lessee's obligations hereunder by
one or more of such Lessee's Subsidiaries or Affiliates or one or more of
Lessee's sublessees of the Leased Properties or any part thereof shall
constitute performance by Lessee of such obligations to the same extent and with
the same effect hereunder as if such obligations were performed by such Lessee,
but no such performance shall excuse any Lessee from any obligation not
performed by it or on its behalf under the Operative Documents.
Section 17.12 Liability of Lessor Limited.
Except as otherwise expressly provided below in this Section 17.12, it
is expressly understood and agreed by and between each Lessee, Lessor and their
respective successors and assigns that nothing herein contained shall be
construed as creating any liability of Lessor or any of its Affiliates or any of
their respective officers, directors, employees or agents, individually or
personally, for any failure to perform any covenant, either express or implied,
contained herein, all such liability (other than that resulting from Lessor's
gross negligence or willful misconduct, except to the extent imputed to Lessor
by virtue of any Lessee's action or failure to act), if any, being expressly
waived by each Lessee and by each and every Person now or hereafter claiming by,
through or under any Lessee, and that, so far as Lessor or any of its Affiliates
or any of their respective officers, directors, employees or agents,
individually or personally, is concerned, each Lessee and any Person claiming
by, through or under any Lessee shall look solely to the right, title and
interest of Lessor in and to the Leased Properties and any proceeds from
Lessor's sale or encumbrance thereof (provided, however, that no Lessee shall be
entitled to any double recovery) for the performance of any obligation under
this Lease and under the Operative Documents and the satisfaction of any
liability arising therefrom (other than that resulting from Lessor's gross
negligence or willful misconduct, except to the extent imputed to Lessor by
virtue of any Lessee's action or failure to act).
Section 17.13 Estoppel Certificates.
Each party hereto agrees that at any time and from time to time during
the Lease Term, it will promptly, but in no event later than thirty (30) days
after request by the other party hereto, execute, acknowledge and deliver to
such other party or to any prospective purchaser (if such prospective purchaser
has signed a commitment or letter of intent to purchase any Leased Property or
any part thereof or any Note), assignee or mortgagee or third party designated
by such other party, a certificate stating (a) that this Lease is unmodified and
in force and effect (or if there have been modifications, that this Lease is in
force and effect as modified, and identifying the modification agreements); (b)
the date to which Basic Rent has been paid; (c) whether or not there is any
existing default by any Lessee in the payment of Basic Rent or any other sum of
money hereunder, and whether or not there is any other existing default by
either party with respect to which a notice of default has been served, and, if
there is any such default, specifying the nature and extent thereof; (d) whether
or not, to the knowledge of the signer after due inquiry and investigation,
there are any setoffs, defenses or counterclaims against enforcement of the
obligations to be performed hereunder existing in favor of the party executing
such certificate and (e) other items that may be reasonably requested; provided
that no such certificate may be requested unless the requesting party has a good
faith reason for such request.
Section 17.14 No Joint Venture.
Any intention to create a joint venture, partnership or other fiduciary
relationship between Lessor and any Lessee is hereby expressly disclaimed.
Section 17.15 No Accord and Satisfaction.
The acceptance by Lessor of any sums from any Lessee (whether as Basic
Rent or otherwise) in amounts which are less than the amounts due and payable by
the Lessees hereunder is not intended, nor shall be construed, to constitute an
accord and satisfaction of any dispute between Lessor and any Lessee regarding
sums due and payable by any Lessee hereunder, unless Lessor specifically deems
it as such in writing.
Section 17.16 No Merger.
In no event shall the leasehold interests, estates or rights of any
Lessee hereunder, or of the holder of any Notes secured by a security interest
in this Lease, merge with any interests, estates or rights of Lessor in or to
the Leased Properties, it being understood that such leasehold interests,
estates and rights of each Lessee hereunder, and of the holder of any Notes
secured by a security interest in this Lease, shall be deemed to be separate and
distinct from Lessor's interests, estates and rights in or to the Leased
Properties, notwithstanding that any such interests, estates or rights shall at
any time or times be held by or vested in the same person, corporation or other
entity.
Section 17.17 Survival.
The obligations of each Lessee to be performed under this Lease prior
to the Lease Termination Date and the obligations of Lessee pursuant to Articles
III, X, XI, XIII, Sections 14.2, 14.3, 14.4, 14.5, 14.8, Articles XV, and XVI,
and Sections 17.10 and 17.12 shall survive the expiration or termination of this
Lease. The extension of any applicable statute of limitations by Lessor, any
Lessee, the Agent or any Indemnitee shall not affect such survival.
Section 17.18 Chattel Paper.
To the extent that this Lease constitutes chattel paper (as such term
is defined in the Uniform Commercial Code in any applicable jurisdiction), no
security interest in this Lease may be created through the transfer or
possession of any counterpart other than the sole original counterpart, which
shall be identified as the original counterpart by the receipt of the Agent.
Section 17.19 Time of Essence.
Time is of the essence of this Lease.
Section 17.20 Recordation of Lease.
Each Lessee will, at its expense, cause this Lease or a memorandum of
lease in form and substance reasonably satisfactory to Lessor and such Lessee
(if permitted by Applicable Law) to be recorded in the proper office or offices
in the States and the municipalities in which the Land is located.
Section 17.21 Investment of Security Funds.
The parties hereto agree that any amounts not payable to a Lessee
pursuant to any provision of Article VIII, X or XIV or this Section 17.21 solely
because an Event of Default shall have occurred and be continuing shall be held
by the Agent (or Lessor if the Loans have been fully paid) as security for the
obligations of the Lessees under this Lease and the Master Agreement and of
Lessor under the Loan Agreement. At such time as no Event of Default shall be
continuing such amounts are payable to the Lessee, such amounts, net of any
amounts previously applied to the Lessees' obligations hereunder or under the
Master Agreement (which application is hereby agreed to by Lessee), shall be
paid to the related Lessee. Any such amounts which are held by the Agent (or
Lessor if the Loans have been fully paid) pending payment to a Lessee shall
until paid to such Lessee, as provided hereunder or until applied against the
Lessees' obligations herein and under the Master Agreement and distributed as
provided in the Loan Agreement or herein (after the Loan Agreement is no longer
in effect) in connection with any exercise of remedies hereunder, be invested by
the Agent or Lessor, as the case may be, as directed from time to time in
writing by Lessee (provided, however, if an Event of Default has occurred and is
continuing it will be directed by the Agent or, if the Loans have been fully
paid, Lessor) and at the expense and risk of the Lessees, in Permitted
Investments. Any gain (including interest received) realized as the result of
any such investment (net of any fees, commissions and other expenses, if any,
incurred in connection with such investment) shall be applied in the same manner
as the principal invested. Lessees upon demand shall pay to the Agent or Lessor,
as appropriate, the amount of any loss incurred in connection with all such
investments and the liquidation thereof.
Section 17.22 Ground Leases: IDB Documentation.
Each Lessee will, at its expense, timely perform all of the obligations
of Lessor, in its capacity as ground lessee, under each Ground Lease and all
obligations under any IDB Documentation and, if requested by Lessor shall
provide satisfactory evidence to Lessor of such performance.
Section 17.23 Land and Building.
If any Building and the Land on which such Building is located are
subject to separate Lease Supplements, at any time that the related Lessee
exercises an option to purchase such Building or such Land, or to renew this
Lease with respect to such Building or such Land, or is obligated to purchase
such Building or such Land as a result of an Event of Loss, an Event of Taking
or an Event of Default, such purchase or renewal shall be made simultaneously
with respect to all of such Building and such Land.
Section 17.24 Joint and Several.
Each obligation of each Lessee hereunder shall be a joint and several
obligation of all of the Lessees.
[Signature page follows]
LEASE
AGREEMENT
IN WITNESS WHEREOF, the undersigned have each caused this Lease
Agreement to be duly executed and delivered and attested by their respective
officers thereunto duly authorized as of the day and year first above written.
Witnessed: DOLLAR GENERAL CORPORATION,
as a Lessee
By:________________________________
Name:_____________________________
By: _____________________________
Name:____________________________
By:______________________________
Title:___________________________
Name:_____________________________
Witnessed: ATLANTIC FINANCIAL GROUP, LTD.,
as Lessor
By:_______________________________ By: Atlantic Financial Managers,
Name:____________________________ Inc., its General Partner
By:_______________________________ By:______________________________
Name:_____________________________ Name: Xxxxxxx Xxxxxxxxxx
Title: President
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease was acknowledged before me, the undersigned Notary
Public, in the County of ______________, ____ ____, this _____ day of
__________, _______________, by _____________________, as ____________________
of Atlantic Financial Managers, Inc., a Texas corporation which is general
partner of Atlantic Financial Group, Ltd., on behalf of such corporation as
general partner of such partnership.
[Notarial Seal] ___________________________
Notary Public
My commission expires: _____________
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease was acknowledged before me, the undersigned Notary
Public, in the County of ______________, ___ ____, this _____ day of __________,
__________, by ___________, as _____________, of Dollar General Corporation, a
Tennessee corporation, on behalf of the corporation.
[Notarial Seal] ______________________________
Notary Public
My commission expires: ______________
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of the date hereof.
SUNTRUST BANK, NASHVILLE, N.A.,
as the Agent
By: _____________________________
Name:____________________________
Title:__________________________
By: _____________________________
Name:____________________________
Title:___________________________
Recording requested by EXHIBIT A TO
and when recorded mail to: THE LEASE
LEASE SUPPLEMENT NO. __ AND MEMORANDUM OF LEASE
THIS LEASE SUPPLEMENT NO. __ (this "Lease Supplement") dated as of [ ],
between ATLANTIC FINANCIAL GROUP, LTD., as lessor (the "Lessor"), and [DOLLAR
GENERAL CORPORATION, a Tennessee corporation,] as lessee (the "Related Lessee").
WHEREAS Lessor is the owner of the Land described on Schedule I hereto
and wishes to lease the Land together with any Building and other improvements
thereon or which thereafter may be constructed thereon pursuant to the Lease to
Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions; Interpretation. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix A to the Lease Agreement, dated
as of June 11, 1999, among the Lessees named therein and Lessor; and the rules
of interpretation set forth in Appendix A to the Lease shall apply to this Lease
Supplement.
SECTION 2. The Properties. Attached hereto as Schedule I is the
description of certain Land (the "Subject Property"). Effective upon the
execution and delivery of this Lease Supplement by Lessor and Lessee, such Land,
together with any Building and other improvements thereon or which thereafter
may be constructed thereon shall be subject to the terms and provisions of the
Lease and Lessor hereby grants, conveys, transfers and assigns to the Related
Lessee those interests, rights, titles, estates, powers and privileges provided
for in the Lease with respect to the Subject Property.
SECTION 3. Amendments to Lease with Respect to Subject Property.
Effective upon the execution and delivery of this Lease Supplement by Lessor and
the Related Lessee, the following terms and provisions shall apply to the Lease
with respect to the Subject Property:
[Insert Applicable Sections per Local Law
as contemplated by the Master Agreement]
SECTION 4. Ratification; Incorporation. Except as specifically modified
hereby, the terms and provisions of the Lease are hereby ratified and confirmed
and remain in full force and effect. The terms of the Lease (as amended by this
Lease Supplement) are by this reference incorporated herein and made a part
hereof.
SECTION 5. Original Lease Supplement. The single executed original of
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the original
executed counterpart of this Lease Supplement (the "Original Executed
Counterpart"). To the extent that this Lease Supplement constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF TENNESSEE, BUT
EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES OF SUCH STATE,
EXCEPT AS TO MATTERS RELATING TO THE CREATION OF THE LEASEHOLD AND MORTGAGE
ESTATES HEREUNDER, AND THE EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT THERETO,
WHICH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
IN WHICH SUCH ESTATES ARE LOCATED.
SECTION 7. Counterpart Execution. This Lease Supplement may be executed in any
number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and
the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
Witnessed: ATLANTIC FINANCIAL GROUP, LTD.,
as the Lessor
By: Atlantic Financial Managers,
By:_________________________________
Name:_______________________________
By: By:______________________________
---------------------------------
Name:______________________________ Name:____________________________
Title:___________________________
Witnessed: DOLLAR GENERAL CORPORATION,
as Related Lessee
By: __________________________________ By:______________________________
Name:________________________________ Name:____________________________
Title:___________________________
By: __________________________________
Name:________________________________
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease was acknowledged before me, the undersigned Notary
Public, in the County of ______________, ____ ____, this _____ day of
__________, _______________, by _____________________, as ____________________
of Atlantic Financial Managers, Inc., a Texas corporation which is general
partner of Atlantic Financial Group, Ltd., on behalf of such corporation as
general partner of such partnership.
[Notarial Seal] ___________________________
Notary Public
My commission expires: _____________
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease was acknowledged before me, the undersigned Notary
Public, in the County of ______________, ___ ____, this _____ day of __________,
__________, by ___________, as _____________, of Dollar General Corporation, a
Tennessee corporation, on behalf of the corporation.
[Notarial Seal] ______________________________
Notary Public
My commission expires: ______________
Receipt of this original counterpart of the foregoing Lease Supplement is hereby
acknowledged as of the date hereof.
SUNTRUST BANK, NASHVILLE, N.A.,
as the Agent
By: ___________________________
Name:__________________________
Title:_________________________
By: ___________________________
Name:__________________________
Title:_________________________
