EXECUTION COPY
GROUND LEASE AGREEMENT
Dated as of June 27, 2001
between
THRIFTY PAYLESS, INC.,
as Ground Lessor
and
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee of RAC Distribution Statutory Trust,
as Ground Lessee
PREMISES: 0000 Xxxx Xxxxxx X
Xxxxxxxxx, Xxxxxxxxxx
This instrument was drafted by and after recording return to:
Xxxxxx X. Xxxxxxxxxxx, Esq.
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
GROUND LEASE AGREEMENT (this "Ground Lease") dated as of June 27, 2001,
between THRIFTY PAYLESS, INC., a California corporation with an address at c/o
Rite Aid Corporation, 00 Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx 00000, as "Ground
Lessor" and XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee of RAC Distribution Statutory Trust, a
Connecticut statutory trust having an address c/o Wells Fargo Bank Northwest,
National Association, 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxx
00000, Attn: Corporate Trust Services, as "Ground Lessee".
In consideration of the mutual agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
Definitions
Capitalized terms used herein but which are not defined herein shall,
unless the context otherwise requires, have the meanings assigned to them in
Appendix A to the Participation Agreement dated as of the date hereof by and
among Rite Aid Realty Corp., as Lessee, Rite Aid Corporation, as Guarantor,
Ground Lessee, the financial institutions named therein as Note Holders and as
Certificate Holders, and Citicorp USA, Inc., as Agent (as amended, modified or
supplemented from time to time, the "Participation Agreement"). In addition, the
rules of construction set forth in Part I of Appendix A to the Participation
Agreement shall apply to this Lease.
ARTICLE II
Preliminary Statement
Ground Lessor owns that certain parcel of land as described on Exhibit
A annexed hereto (the "Land") (the Land, together with any easements benefiting
the Land or appurtenant thereto being collectively, the "Parcel") and is willing
to lease the Parcel to the Ground Lessee under the terms and conditions set
forth in this Ground Lease. The Ground Lessee desires to lease such land from
the Ground Lessor as provided herein.
ARTICLE III
Lease of the Parcel; Termination
SECTION 3.01. Lease of Parcel. Ground Lessor hereby leases the Parcel
to Ground Lessee and Ground Lessee hereby leases the Parcel from Ground Lessor,
for the Ground Lease Term (as defined in Section 17.01), subject to all the
terms and conditions hereof, together with the Improvements and any and all
replacements, alterations, modifications, additions or improvements thereto and
further together with all rights of way or uses, licenses, easements, tenements,
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hereditaments and appurtenances now or hereafter belonging or pertaining to the
Parcel (collectively, the "Property"). Effective from and after the date hereof,
Ground Lessor waives and relinquishes any Lien or other right in the nature of a
landlord's lien or privilege which it might now or hereafter otherwise have in
or with respect to the Property or any part thereof.
SECTION 3.02. Election To Terminate. Ground Lessee may elect to
terminate this Ground Lease upon the payment of $1 to Ground Lessor at any time
following the expiration or termination of the Lease; provided, however, that no
such termination shall be effective without the prior written consent of the
Agent. Upon such termination, Ground Lessee's obligations hereunder, including
its obligation to make rental payments hereunder, shall terminate.
SECTION 3.03. Automatic Termination. Upon payment in full of the
Termination Value in accordance with and subject to the provisions of the Lease
and the Participation Agreement, and upon compliance with all of the
requirements of Section 10.05 of the Lease, this Ground Lease shall terminate
and Ground Lessee's and Ground Lessor's obligations hereunder shall terminate.
ARTICLE IV
Payments
SECTION 4.01. Ground Lease Rental Payments. Ground Lessee shall pay to
Ground Lessor (a) Ten ($10) Dollars as rental payment for the Property for the
period commencing on the date hereof and continuing until the expiration or
earlier termination of the Lease, receipt of which is hereby acknowledged by
Ground Lessor and (b) Ten Dollars ($10) per annum in arrears as rental payment
for the Property for the remainder of the Ground Lease Term, such payments to
commence on the first annual anniversary of the first day following the
expiration or earlier termination of the Lease, and on each annual anniversary
thereof throughout the balance of the Ground Lease Term, except that the last
installment thereof shall be payable on the last day of the Ground Lease Term.
SECTION 4.02. Method of Payment. Payments under this Ground Lease shall
be paid to such account or at such place as Ground Lessor or Ground Lessee, as
the case may be, shall specify from time to time in writing. Each such payment
due hereunder shall be made in immediately available funds prior to 12:00 p.m.
(New York time), on the scheduled date on which such payment shall be due, but,
if such date shall not be a Business Day, such payment shall be made on the next
succeeding Business Day with the same force and effect as though made on such
scheduled date.
SECTION 4.03. Late Payment. If any payment under this Ground Lease
shall not be paid when due, Ground Lessee shall pay to Ground Lessor (or Ground
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Lessor shall pay to Ground Lessee, as the case may be) interest (to the extent
permitted by Law) on such overdue amount from and including the due date thereof
to but excluding the date of payment thereof (unless such payment shall be made
after 12:00 p.m. (New York time)) at the place of payment on such date of
payment, in which case such date of payment shall be included) at the Default
Rate.
ARTICLE V
Quiet Enjoyment
Ground Lessor represents and warrants to Ground Lessee that it has full
right and authority to lease the Property to Ground Lessee, all pursuant to the
terms of this Ground Lease and that it has good, marketable and indefeasible fee
title to the Property free and clear of all Liens except Permitted Encumbrances,
and Ground Lessor represents and warrants that, at all times during the Ground
Lease Term, it will defend and hold harmless Ground Lessee and its successors
and assigns in their peaceable, quiet, exclusive and undisputed enjoyment of the
Property against the claims of all Persons.
ARTICLE VI
Use of Property; Easements; Waivers
SECTION 6.01. Use. Ground Lessee may use the Property for any legal
purpose, including without limitation, the same purpose and business as Lessee
may use the Property under the Lease, and only in accordance with the provisions
thereof.
SECTION 6.02. Easements. Provided that no event of default hereunder
shall have occurred and be continuing, Ground Lessor hereby consents in each
instance to the following actions by Ground Lessee and the Lessee under the
Lease, but at Ground Lessee's or Lessee's, as applicable, sole cost and expense:
(i) the granting of easements, licenses, rights-of-way and other rights and
privileges in the nature of easements reasonably necessary or desirable for the
use, repair, or maintenance of the Property; or (ii) the release of existing
easements or other rights in the nature of easements which are for the benefit
to any Property; provided, that in the case of such actions by Lessee, such
actions are permitted under the terms of the Lease.
SECTION 6.03. Ground Lessor Waivers. Ground Lessor acknowledges the
rights of Ground Lessee and the Lessee under the Lease to finance and to secure
under the Uniform Commercial Code, inventory, furnishings, furniture, equipment,
machinery, leasehold improvements (so long as such leasehold improvements are
personal property and not fixtures) and all other personal property located on,
at or under the Property, other than in the case of Lessee, any Equipment
Collateral and the Improvements, and Ground Lessor agrees to execute lessor
waivers in favor of any purchase money seller, lessor or lender which has
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financed or provided or may finance or provide in the future such items of
personal property.
ARTICLE VII
Alterations
During the Ground Lease Term, Ground Lessee, in its discretion, may
from time to time alter or improve, or cause to be altered or improved, the
Property or any part thereof in any manner it deems necessary or desirable to
carry on any activity permitted under Article VI, including any alteration,
demolition or removal of any existing buildings, equipment, machinery, roads or
other structures or items of personal property or fixtures, any grading or
landscaping of the Parcel and any excavation of or for any foundations or fuel
storage or waste treatment areas and any construction or addition of any
buildings, equipment, roads or other structures or items of personal property or
fixtures, but subject to any express restrictions on Ground Lessee contained in
this Ground Lease.
ARTICLE VIII
Liens
Ground Lessor shall not directly or indirectly create, incur, assume or
suffer to exist any Lien on or with respect to the Property or the premises
covered by the Property, title thereto or any interest therein, except Permitted
Encumbrances, and Ground Lessor shall promptly, at its own expense, take such
action as may be necessary to duly discharge any such Lien. If Ground Lessor
shall fail to promptly discharge any such Lien, Ground Lessee, at its option,
may, upon not less than five (5) days notice to Ground Lessor, cause the same to
be so discharged, and sums expended by Ground Lessee in connection therewith
shall be repaid by Ground Lessor to Ground Lessee on demand. If the Lease shall
expire or be terminated and this Ground Lease shall thereafter remain in effect,
Ground Lessee shall keep, or cause the Property to be kept, free and clear of
Liens arising by, through or in respect of Ground Lessee, other than Liens which
do not involve any material danger of the sale, forfeiture or loss of any part
of the fee estate in and to the Property or any interest of Ground Lessor
therein; provided, however, that Ground Lessee shall not be required to
discharge any such Liens (i) during any period that a Default or Event of
Default shall exist, or (ii) which result from a breach of Ground Lessor's
obligations under Article IX hereof. On final determination of such Lien (which
shall be the responsibility of Ground Lessee) described in the preceding
sentence, Ground Lessee shall immediately pay any judgment rendered with all
proper costs and charges and shall have the Lien released or judgment satisfied
at Ground Lessee's expense. If any such Lien (which shall be the responsibility
of Ground Lessee) placed on such property ripens into final judgment, Ground
Lessor, at its option, may pay any such final judgment and all sums expended by
Ground Lessor in connection therewith shall be repaid by Ground Lessee to Ground
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Lessor on demand. Ground Lessee shall not directly or indirectly create, incur,
assume or suffer to exist any Lessor Liens.
ARTICLE IX
Taxes and Charges
Ground Lessee shall use commercially reasonable efforts to cause the
Lessee under the Lease to pay (or cause to be paid), prior to delinquency, all
Charges which arise or accrue during the Term of the Lease. If the Lease shall
expire or be terminated and this Ground Lease shall remain in effect, Ground
Lessee shall pay or cause to be paid throughout the remaining Ground Lease Term
before delinquency all Charges; provided, however, that neither party shall be
required to make any such payments if such party shall in good faith be
contesting any such Charges, so long as such contest does not involve any
material danger of the sale, forfeiture or loss of any part of the Property,
title thereto or any interest of Ground Lessee or Ground Lessor therein. If
either party fails to make any payment as herein provided required to be made by
such party, the other party at its option ma y pay the same and any moneys so
paid shall be payable on demand by the party responsible for such payment.
ARTICLE X
Insurance
Ground Lessee shall use commercially reasonable efforts to cause the
Lessee under the Lease to maintain insurance coverage with respect to the
Property in accordance with Section 6.05 of the Lease during the Term of the
Lease. If the Lease shall expire or be terminated and this Ground Lease shall
thereafter remain in effect, Ground Lessee shall, without cost to Ground Lessor,
maintain or cause to be maintained in effect throughout the remaining Ground
Lease Term, with insurers of recognized responsibility, insurance policies with
respect to the Property insuring against loss or damage to the person and
property of Ground Lessee and Ground Lessor and others, all from such risks and
in such amounts as owners of similar properties maintain with respect to such
property, including liability insurance; provided, however, that neither party
shall in any event be required to maintain any such insurance in amounts greater
than is generally maintained by responsible owners of similar property. If the
Ground Lessee shall fail to maintain such insurance during any period in which
the Lease is no longer in effect, the Ground Lessor may (but shall be under no
obligation to) maintain or cause such insurance to be maintained at the sole
cost and expense of the Ground Lessee.
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ARTICLE XI
Casualty or Condemnation
SECTION 11.01. Termination upon a Casualty or Condemnation. If, during
the Term of the Lease, a Casualty or Condemnation shall occur, as a result of
which the Lease shall terminate with respect to the California Property, this
Ground Lease shall thereafter terminate upon full compliance by Lessee with the
provisions of Articles VII and, if applicable, X of the Lease, and the
obligations of Ground Lessee hereunder shall thereupon terminate. If such
Casualty or Condemnation shall occur during any period in which the Lease is no
longer in effect, this Ground Lease shall thereafter terminate at the election
of the Ground Lessee, provided, however, that until the Notes and the Investment
have been paid (or re-paid, as the case may be) in full, no such termination
shall be effective without the prior written consent of the Agent. Upon such
termination, the obligations of Ground Lessee hereunder shall terminate.
SECTION 11.02. Application of Payments upon a Casualty or Condemnation.
Any payment, including condemnation awards, received at any time by Ground
Lessor or Ground Lessee from any Governmental Authority or other Person as a
result of the occurrence of a Casualty or Condemnation when the Lease is in
effect shall be distributed in accordance with Article VII of the Lease. Any
such payment received by Ground Lessor or Ground Lessee as a result of a
Casualty or Condemnation during any period in which the Lease is no longer in
effect, shall be applied as follows: so much of such payments as shall be
necessary to pay in full all sums owing (i) with respect to the Notes and the
Investment, and (ii) to Ground Lessee, the Lenders, the Lessor or the Agent
otherwise in respect of the transactions contemplated by the Participation
Agreement or any other Operative Document shall be retained by, or paid over to,
Ground Lessee, and the balance (if any) of such payments shall be retained by,
or paid over to Ground Lessor (provided that no Default or Event of Default then
exists).
ARTICLE XII
Default
The following events shall (but only if the Lease is no longer in
effect) constitute an event of default hereunder (whatever the reason for such
default and whether it shall be voluntary or involuntary or come about or be
effected by operation of law or be pursuant to or in compliance with any Law):
(a) Ground Lessee shall fail to make any payment of rental or other
payment due hereunder and such failure shall continue unremedied
for a period of ten (10) days after receipt of written notice
thereof from Ground Lessor; or
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(b) Ground Lessee shall fail to perform or observe any other covenant,
condition or agreement to be performed or observed by it hereunder
and such failure shall continue unremedied for a period of thirty
(30) days after receipt of written notice thereof from Ground
Lessor, except that so long as Ground Lessee has commenced to cure
such failure within such thirty (30) day period and proceeds with
reasonable diligence and dispatch to cure such failure, such
failure shall not constitute an event of default hereunder.
Upon the occurrence and during the continuance of an event of default
hereunder, Ground Lessor shall have the right, upon ten (10) Business Days
written notice to Ground Lessee, to enter upon and take possession of the
Property and cancel all rights hereunder. Any such entry and possession by
Ground Lessor shall be without liability or responsibility to Ground Lessee.
Ground Lessor shall have the right, after the occurrence and during the
continuance of an event of default hereunder, to terminate this Ground Lease by
giving ten (10) days written notice to Ground Lessee of Ground Lessor's election
to terminate same. The remedies set forth above are exclusive of any other
rights or remedies of Ground Lessor which exist at law or in equity.
Notwithstanding anything to the contrary contained in this Ground Lease, no
event, occurrence or failure to perform by (or on behalf of) Ground Lessee shall
constitute a default or an event of default hereunder, and Ground Lessor shall
have no right to enter upon and take possession of the Property or terminate
this Ground Lease, so long as any sums remain to be paid at any time by Lessee
under the Lease or any sums remain to be paid to Ground Lessee, the Holders, the
Lessor or Agent under the Participation Agreement or any other Operative
Document.
ARTICLE XIII
Lease; Assignment; Sale
SECTION 13.01. Generally. Ground Lessee may from time to time, without
Ground Lessor's consent:
(a) Lease the California Property and Ground Lessee's interests
hereunder pursuant to the Lease;
(b) Lease the California Property or assign this Ground Lease or any
interests of Ground Lessee hereunder to any Person during the Additional
Portion of the Ground Lease Term; and
(c) Assign and create liens and security interests in Ground Lessee's
interests hereunder in accordance with the Participation Agreement and the
Trust Agreement;
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Any subletting or assignment permitted hereunder shall relieve Ground
Lessee of its obligations hereunder.
SECTION 13.02. Ground Lessor. Ground Lessor will not sell, transfer or
convey the California Property or any of its rights or interests in the
California Property or assign this Ground Lease or any rights or interests of
Ground Lessor hereunder, except in accordance with the provisions of the
Participation Agreement.
ARTICLE XIV
Notices
Unless otherwise specifically provided herein, all notices and other
communications required or permitted hereunder shall be in writing and shall be
addressed and become effective as provided in the Participation Agreement.
ARTICLE XV
Binding Effect; Successors and Assigns
The terms and provisions of this Ground Lease and the respective rights
and obligations hereunder of Ground Lessee and Ground Lessor shall be binding
upon, and inure to the benefit of, their respective permitted successors and
assigns.
ARTICLE XVI
Possession Upon Termination
Upon termination of the Ground Lease Term, whether by lapse of time or
because of any of the conditions or provisions contained herein, Ground Lessee
will peaceably and quietly yield up and surrender possession of the California
Property to Ground Lessor without representation or warranty except that at the
time thereof there shall be no Liens (created directly by Ground Lessee)
prohibited by Article VIII on the California Property.
ARTICLE XVII
Ground Lease Term
SECTION 17.01. Ground Lease Term. The term of this Ground Lease shall
commence on the date hereof and shall expire, unless terminated earlier pursuant
to the provisions of this Ground Lease, on February 10, 2035 (the "Initial
Term"). The Initial Term of this Ground Lease shall be automatically extended
for three (3) five year periods (each a "Renewal Term") unless on or before the
date which occurs ninety (90) days prior to the expiration of the Initial Term
or each Renewal Term, as the case may be, the Ground Lessee provides notice in
writing to Ground Lessor of its election not to extend the Ground Lease Term.
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The Initial Term and each successive Renewal Term are referred to herein as the
"Ground Lease Term". In no event shall any termination of the Lease or the
discharge of the obligations of the Lessee under the Lease in any bankruptcy,
insolvency or reorganization proceeding permit the early termination of this
Ground Lease.
SECTION 17.02. Ground Lessor's Bankruptcy. It is expressly understood
and agreed that for purposes of Section 365(h) of the Bankruptcy Code, 11 U.S.C.
ss.365(h), (a) Ground Lessee shall be deemed to be in possession of the Property
by virtue of the possessory interest therein granted to Ground Lessee under this
Ground Lease whether or not all or any part of the Property has been (further)
leased by Ground Lessee and (b) in the event of any rejection or disaffirmance
of this Ground Lease in any bankruptcy or similar proceeding relating to Ground
Lessor, Ground Lessee may elect to remain in possession of the Property for the
balance of the Ground Lease Term, including all extensions exercisable
hereunder, at the option of Ground Lessee.
SECTION 17.03. Underlying Lease. If Ground Lessor owns a leasehold
estate, and not a fee estate, in the Parcel, the terms and conditions of the
lease governing Ground Lessor's leasehold estate are incorporated herein by
reference. Ground Lessee shall use commercially reasonable efforts to cause the
Lessee under the Lease to comply with all requirements of that underlying lease.
During any period in which the Lease is no longer in effect, Ground Lessor shall
have no liability or responsibility to Ground Lessee or the Holders for the
failure of Ground Lessee to comply or to cause Ground Lessee's assignee,
sublettee or other tenant to comply, with the terms and conditions of that
underlying lease or for the results or consequences of any such failure.
ARTICLE XVIII
Indemnification
The Ground Lessor hereby agrees to indemnify each Indemnified Party
from and against, and to pay any and all Losses which may be imposed on,
incurred by, or asserted against any Indemnified Party in any way relating to or
arising out of this Agreement or the Property pursuant to the provisions of
Section 9.14 of the Participation Agreement, which provisions are hereby
incorporated herein by reference as if fully set forth herein.
ARTICLE XIX
The Lease
During the Term of the Lease, Ground Lessor shall look solely to the
Lessee under the Lease for the performance and discharge of Ground Lessee's
obligations and liabilities under this Ground Lease (other than with respect to
Liens created directly by Ground Lessee) with the same force and effect as
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though Ground Lessee had performed the same, and Ground Lessee shall have no
liability hereunder, no default or event of default shall arise hereunder and
the rights of Ground Lessee hereunder shall not be affected, as a result of any
failure of Ground Lessee to perform or discharge such liabilities or obligations
notwithstanding (a) any continuation of any such failure after the end of the
Term of the Lease or (b) that such failure first became known or apparent after
the end of the Term of the Lease. No such performance or discharge by or on
behalf of the Lessee under the Lease shall be deemed an acknowledgment by Ground
Lessor of the Lessee under the Lease as Ground Lessee hereunder, or a merger of
the Lease with this Ground Lease or a merger of the estate of Lessor under the
Lease with the estate of the Lessee thereunder.
ARTICLE XX
Bankruptcy of Ground Lessee
If this Ground Lease shall terminate as a result of a rejection or
disaffirmance in any bankruptcy, insolvency or reorganization proceeding
affecting Ground Lessee, then so long as any amounts are payable or due with
respect to the Instruments or otherwise with respect to the transactions
contemplated by the Participation Agreement and the other Operative Documents,
the Agent, or a Person designated by Agent (in either case, the "Bankruptcy
Ground Lessee"), shall have the right, exercisable by notice to Ground Lessor
within 60 days after the effective date of such termination, to enter into a new
lease of the Property with Ground Lessor, the term of which shall begin on the
date of the termination, rejection or disaffirmance of this Ground Lease and
shall continue for the remainder of the Ground Lease Term. The new lease shall
otherwise contain the same terms and conditions as those set forth herein,
except for requirements which are no longer applicable or have already been
performed, and the Bankruptcy Ground Lessee shall have no obligation to remedy
prior defaults on the part of Ground Lessee hereunder. Ground Lessor will cause
such new lease to have the same priority relative to other rights or interests
to or in the Property as this Ground Lease (other than with respect to Liens
created directly by Ground Lessee), and Ground Lessor covenants to discharge or
cause to be subordinated to such new lease any Lien which is or is herein
required to be subject or subordinate to this Ground Lease, other than Liens of
Persons claiming by, through or under the Bankruptcy Ground Lessee, Ground
Lessee or the Agent as to which Ground Lessor shall have no obligation. The
provisions of this Article XX shall survive the termination of this Ground Lease
and shall continue in full force and effect thereafter to the same extent as if
this Article XX were a separate and independent contract among Ground Lessor,
Ground Lessee and the Agent. From the date on which the Agent shall serve upon
Ground Lessor notice of the exercise of its right to a new lease, the Bankruptcy
Ground Lessee may use and enjoy the Property without hindrance by Ground Lessor.
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ARTICLE XXI
Personal Liability
No Person shall become personally liable for the performance or
observance of any agreements, obligations, covenants or conditions to be
performed or observed by Ground Lessee under this Ground Lease, or any
liabilities with respect thereto.
ARTICLE XXII
Miscellaneous
SECTION 22.01. Severability. Any provision of this Ground 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 inva lidating 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.
SECTION 22.02. Amendment. Neither this Ground Lease nor any of the
terms hereof may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification shall be sought, and, in the case of Ground Lessee, consented to
by, the Agent.
SECTION 22.03. Headings. The Table of Contents and headings of the
various Articles and Sections of this Ground Lease are for convenience of
reference only and shall not modify, define or limit any of the terms or
provisions hereof.
SECTION 22.04. Counterparts. This Ground Lease may be executed by the
parties hereto in separate counterparts. All such counterparts shall together
constitute but one and the same instrument.
SECTION 22.05. GOVERNING LAW. THIS GROUND LEASE SHALL IN ALL RESPECTS
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE IN WHICH
THE PARCEL IS LOCATED APPLICABLE TO AGREEMENTS TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 22.06. Recording. This Ground Lease or a memorandum hereof may
be recorded by either party hereto in the appropriate real estate records and
Ground Lessor shall pay all costs of recording and all applicable recording or
transfer taxes or related charges.
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SECTION 22.07. Estoppel Certificates. Ground Lessor will execute,
acknowledge and deliver to Ground Lessee, or Agent, promptly upon request by
such Person (but not more oft en than two times in any twelve month period) an
estoppel certificate certifying (a) that this Ground Lease is unmodified and in
full force and effect (or, if there have been modifications, that this Ground
Lease is in full force and effect, as modified, and stating the date of each
instrument so modifying this Ground Lease), (b) the dates, if any, to which rent
has been paid and (c) whether any Default exists hereunder known to it and, if
any such Default exists, specifying the nature and period of existence thereof
and what action it is taking or proposes to take with respect thereto, and
whether notice thereof has been given to Ground Lessee. Any such certificate may
be relied upon by the Agent, the Lessor, any Holder of a Note and any
prospective purchaser or transferee of Ground Lessee's interest under this
Ground Lease or any part thereof.
SECTION 22.08. Liabilities of Trustee. Except for the liability of
Xxxxx Fargo Bank Northwest, National Association ("WFBN") for its
representations and warranties under Section 3.03 of the Participation
Agreement, for its own gross negligence and willful misconduct and as otherwise
provided in the Operative Documents, it is expressly understood and agreed by
Ground Lessor and Ground Lessee that (a) this Ground Lease is executed and
delivered by WFBN, not in its individual capacity but solely as trustee of
Ground Lessee under the Trust Agreement, in the exercise of the powers and
authority conferred and vested in it as trustee under the Trust Agreement, (b)
each of the undertakings and agreements herein made on the part of Ground Lessee
is made and intended not as a personal representation, undertaking and agreement
by WFBN but is made and intended for the purpose of binding only the Ground
Lessee, (c) nothing herein contained shall be construed as creating any
liability on WFBN, individually or personally, to perform any obligation of
Ground Lessee either expressed or implied contained herein or in the Operative
Documents, all such liability, if any, being expressly waived by Ground Lessor
and Ground Lessee and by any Person lawfully claiming by, though or under the
parties to this Agreement and (d) under no circumstances shall WFBN be
personally liable for the payment of any indebtedness or expenses of Ground
Lessee or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by Ground Lessee under this Ground Lease
or the other Operative Documents.
SECTION 22.09. Security for Ground Lessee's Obligations to Agent. In
order to secure a portion of the indebtedness evidenced by the Instruments, the
Participation Agreement provides, among other things, for the assignment by
Ground Lessee to the Agent of Ground Lessee's right, title and interest in, to
and under this Ground Lease, to the extent set forth in the Participation
Agreement, and for the creation of a mortgage (or deed of trust) lien on and
security interest in such rights and interests as well as Ground Lessee's
ownership interest in the Improvements, in favor of the Agent. Ground Lessor
hereby consents to such assignment and to the creation of such mortgage (or deed
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of trust) and security interest and acknowledges receipt of copies of the
Participation Agreement.
SECTION 22.10. WAIVER OF TRIAL BY JURY. THE GROUND LESSOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND THE GROUND LESSEE BY ITS ACCEPTANCE
OF THIS GROUND LEASE IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY AND ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH,
OUT OF OR OTHERWISE RELATING TO THIS GROUND LEASE OR ANY OTHER DOCUMENT OR
INSTRUMENT HERETOFORE, NOW OR HEREAFTER EXECUTED AND/OR DELIVERED IN CONNECTION
THEREWITH OR IN ANY WAY RELATED TO THIS TRANSACTION OR OTHERWISE WITH RESPECT TO
THE PROPERTY.
SECTION 22.11. Additional Property. This Ground Le ase shall
automatically be deemed to include any additional land contiguous to the Parcel
which is leased to the Ground Lessor pursuant to a ground lease or which is
acquired in fee by the Ground Lessor.
IN WITNESS WHEREOF, the undersigned have each caused this Ground Lease
Agreement to be duly executed and delivered as of the day and year first above
written.
[Remainder of the Page Intentionally Left Blank]
13
SIGNATURE PAGE TO GROUND LEASE
Ground Lessor:
THRIFTY PAYLESS, INC.
By: ________________________________
Name:
Title:
14
SIGNATURE PAGE TO GROUND LEASE
Ground Lessee:
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Trustee of RAC DISTRIBUTION
STATUTORY TRUST
By: _________________________________
Name:
Title:
15
STATE OF )
: ss.:
COUNTY OF )
[ADD CALIFORNIA ACKNOWLEDGMENT]
STATE OF )
: ss.:
COUNTY OF )
[ADD CALIFORNIA ACKNOWLEDGMENT]
Exhibit A
(Description of the Land)
Land located in Los Angeles County, California, more particularly described as
follows:
BEING THAT PORTION OF THE SOUTH HALF OF SECTION 5, TOWNSHIP 7 NORTH,
RANGE 12 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF LANCASTER,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT
THEREOF, LYING WESTERLY OF THE FOLLOWING DESCRIBED LINE:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 5; THENCE NORTH 89
DEGREES 55 MINUTES 01 SECONDS EAST, COINCIDENT WITH THE SOUTH LINE OF SAID
SECTION 5 (KNOWN AS WEST AVENUE H), A DISTANCE OF 1,320.66 FEET TO THE POINT OF
BEGINNING; THENCE NORTH 00 DEGREES 04 MINUTES 59 SECONDS WEST, AS MEASURED AT
RIGHT ANGLES FROM SAID SOUTH LINE, A DISTANCE OF 118.83 FEET; THENCE NORTH 89
DEGREES 55 MINUTES 01 SECONDS EAST, PARALLEL WITH SAID SOUTH LINE, A DISTANCE OF
54 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE EASTERLY, HAVING A
RADIUS OF 915.69 FEET, A RADIAL LINE AT SAID POINT BEARS SOUTH 88 DEGREES 35
MINUTES 16 SECONDS EAST; THENCE NORTHERLY, COINCIDENT WITH SAID CURVE, THROUGH A
CENTRAL ANGLE OF 10 DEGREES 37 MINUTES 01 SECONDS, AN ARC DISTANCE OF 169.68
FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE TO THE WESTERLY HAVING A RADIUS
OF 1,091.69 FEET; THENCE NORTHERLY, COINCIDENT WITH SAID CURVE, THROUGH A
CENTRAL ANGLE OF 12 DEGREES 39 MINUTES 36 SECONDS, AN ARC DISTANCE OF 241.22
FEET; THENCE NORTH 00 DEGREES 37 MINUTES 51 SECONDS WEST, TANGENT TO SAID CURVE
AND PARALLEL WITH THE WEST LINE OF SAID SECTION 5, A DISTANCE OF 235 FEET;
THENCE NORTH 89 DEGREES 55 MINUTES 01 SECONDS EAST, PARALLEL WITH SAID SOUTH
LINE, A DISTANCE OF 146.85 FEET; THENCE NORTH 00 DEGREES 37 MINUTES 51 SECONDS
WEST, PARALLEL WITH SAID WEST LINE, A DISTANCE OF 1,861.07 FEET TO THE CENTER
QUARTER SECTION LINE OF SAID SECTION 5 (KNOWN AS XXXX XXXXXX X-0).
EXCEPT THOSE PORTIONS THEREOF QUITCLAIMED BY THE LANCASTER
REDEVELOPMENT AGENCY TO THE CITY OF LANCASTER, BY DEED RECORDED FEBRUARY 27,
1998 AS INSTRUMENT NO. 98-316693 BEING THOSE PORTIONS OF THE SOUTH HALF OF
SECTION 5, TOWNSHIP 7 NORTH, RANGE 12 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN
THE CITY OF LANCASTER, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, ACCORDING TO
THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS (PARCELS A, B, C, D, E, AND F):
PARCEL A:
THE NORTH 45 FEET THEREOF.
EXCEPT THEREFROM THAT PORTION LYING EASTERLY OF A LINE PARALLEL WITH
AND 42 FEET EASTERLY OF THE EXCEPT LINE OF THE SOUTHWEST QUARTER OF SECTION 5.
PARCEL B:
THE WEST 57.5 FEET THEREOF.
EXCEPT THE NORTH 45 FEET THEREOF.
PARCEL C:
THE SOUTH 67.5 FEET THEREOF.
EXCEPT THE WEST 57.5 FEET THEREOF.
ALSO EXCEPT THE SOUTH 250 FEET OF THE SOUTHWEST QUARTER OF THE
SOUTHEAST QUARTER OF SAID SECTION 5 OF THE REMAINDER.
ALSO EXCEPT THAT PORTION LYING EAST OF THE WEST LINE OF THE LAND DEEDED
TO THE STATE OF CALIFORNIA, FOR THE ANTELOPE VALLEY FREEWAY, IN DEED RECORDED
JUNE 26, 1967 AS INSTRUMENT NO. 427, OF THE REMAINDER.
PARCEL D:
BEGINNING AT THE INTERSECTION IN THE EAST LINE OF THE ABOVE DESCRIBED
PARCEL "B" WITH THE NORTHWEST CORNER OF THE ABOVE DESCRIBED PARCEL "C"; THENCE
EASTERLY COINCIDENT WITH THE NORTH LINE OF SAID PARCEL "C," A DISTANCE OF 351.75
FEET TO A POINT OF CUSP AN THE BEGINNING OF A 286.36 FOOT RADIUS TANGENT CURVE
CONCAVE NORTHERLY; THENCE WESTERLY, COINCIDENT WITH SAID CURVE, THROUGH A
CENTRAL ANGLE OF 11.4 DEGREES 26 MINUTES 34 SECONDS, AN ARC DISTANCE OF 57.19
3
FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE TO THE SOUTHERLY HAVING A
RADIUS OF 317.36 FEET; THENCE WESTERLY, COINCIDENT WITH SAID CURVE, THROUGH A
CENTRAL ANGLE OF 11 DEGREES 26 MINUTES 34 SECONDS, AN ARC DISTANCE OF 63.38
FEET; THENCE WESTERLY, PARALLEL WITH SAID NORTH LINE, A DISTANCE OF 232.10 FEET
TO SAID EAST LINE; THENCE SOUTHERLY, COINCIDENT WITH SAID EAST LINE, A DISTANCE
OF 12 FEET TO THE POINT OF BEGINNING.
PARCEL E:
BEGINNING AT THE INTERSECTION IN THE EAST LINE OF THE ABOVE DESCRIBED
PARCEL "B" WITH THE NORTHWEST CORNER OF THE ABOVE DESCRIBED PARCEL "D"; THENCE
EASTERLY COINCIDENT WITH THE NORTH LINE OF SAID PARCEL "D", A DISTANCE OF 14.16
FEET; THENCE NORTHWESTERLY, IN A DIRECT LINE TO A POINT ON SAID EAST LINE OF
PARCEL "B", DISTANCE NORTHERLY 13.87 FEET FROM THE POINT OF BEGINNING; THENCE
SOUTHERLY, COINCIDENT WITH SAID EAST LINE, A DISTANCE OF 13.87 FEET TO THE POINT
OF BEGINNING.
PARCEL F:
BEGINNING AT THE INTERSECTION IN THE SOUTH LINE OF THE ABOVE DESCRIBED
PARCEL "A" WITH THE NORTHEAST CORNER OF THE ABOVE DESCRIBED PARCEL "B"; THENCE
EASTERLY COINCIDENT WITH THE SOUTH LINE OF SAID PARCEL "A", A DISTANCE OF 28.84
FEET; THENCE SOUTHWESTERLY, IN A DIRECT LINE, TO A POINT ON THE SAID EAST LINE
OF PARCEL "B", DISTANT SOUTHERLY 33.28 FEET FROM THE POINT OF BEGINNING; THENCE
NORTHERLY, COINCIDENT WITH THE EAST LINE, A DISTANCE OF 33.28 FEET TO THE POINT
OF BEGINNING.
ALSO EXCEPT ALL OIL AND MINERAL RIGHTS, AS RESERVED BY XXXXXX XXXXXX,
IN DEED RECORDED OCTOBER 24, 1951 IN BOOK 37485 PAGE 30, OFFICIAL RECORDS.
ALSO EXCEPT OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND
AND CHARACTER LYING MORE THAN FIVE HUNDRED (500) FEET BELOW THE SURFACE,
TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS
OF THE SITE LYING MORE THAN FIVE HUNDRED (500) FEET BELOW THE SURFACE THEREOF
FOR ANY AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR AND PRODUCTION OF
OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM SAID SITE OR OTHER LANDS, BUT
WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF THE SITE OR ANY PORTION
THEREOF WITHIN FIVE HUNDRED (500) FEET OF THE SURFACE FOR ANY PURPOSE OR
PURPOSES WHATSOEVER, OR TO USE THE SITE IN SUCH A MANNER AS TO CREATE A
DISTURBANCE TO THE USE OR ENJOYMENT OF THE SITE, AS EXCEPTED AND RESERVED BY THE
LANCASTER REDEVELOPMENT AGENCY, A PUBLIC BODY, CORPORATE AND POLITIC, IN DEED
RECORDED FEBRUARY 27, 1998 AS INSTRUMENT NO. 98-316694.
Street Address: 0000 Xxxx Xxxxxx X,
Xxxxxxxxx, XX 00000
4
