EXHIBIT 10.3
LEASE AGREEMENT,
dated as of _________ __, 2007,
by and among
HPT TA PROPERTIES TRUST and HPT TA PROPERTIES LLC,
AS LANDLORD,
AND
TA LEASING LLC,
AS TENANT
LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into as of ________ __, 2007, by and
among HPT TA PROPERTIES TRUST, a Maryland real estate investment trust, and HPT
TA PROPERTIES LLC, a Maryland limited liability company (collectively,
"LANDLORD"), and TA LEASING LLC, a Delaware limited liability company
("TENANT").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Landlord holds fee simple title to, and/or the leasehold
interest in, the Leased Property constituting Real Property (other than the
Retained Buildings), and good title to all other Leased Property (these and
other capitalized terms used and not otherwise defined herein having the
meanings given such terms in ARTICLE 1); and
WHEREAS, Landlord wishes to lease the Leased Property to Tenant and
Tenant wishes to lease the Leased Property from Landlord, subject to and upon
the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, Landlord and Tenant hereby
agree as follows:
ARTICLE 1
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (a) the terms defined in this
Article shall have the meanings assigned to them in this Article and include the
plural as well as the singular, (b) all accounting terms not otherwise defined
herein shall have the meanings assigned to them in accordance with GAAP, (c) all
references in this Agreement to designated "Articles", "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of
this Agreement, and (d) the words "herein", "hereof", "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
1.1 "ADDITIONAL CHARGES" shall have the meaning given such term in
SECTION 3.1.3.
1.2 "ADDITIONAL RENT" shall have the meaning given such term in SECTION
3.1.2(a).
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1.3 "AFFILIATED PERSON" shall mean, with respect to any Person, (a) in
the case of any such Person which is a partnership, any partner in such
partnership, (b) in the case of any such Person which is a limited liability
company, any member of such company, (c) any other Person which is a Parent, a
Subsidiary, or a Subsidiary of a Parent with respect to such Person or to one or
more of the Persons referred to in the preceding clauses (a) and (b), (d) any
other Person who is an officer, director, trustee or employee of, or partner in
or member of, such Person or any Person referred to in the preceding clauses
(a), (b) and (c), and (e) any other Person who is a member of the Immediate
Family of such Person or of any Person referred to in the preceding clauses (a)
through (d).
1.4 "AGREEMENT" shall mean this Lease Agreement, including all exhibits
attached hereto, as it and they may be amended from time to time as herein
provided.
1.5 "ALLOWANCE" shall have the meaning given such term in SECTION
5.1.1(c).
1.6 "APPLICABLE LAWS" shall mean all applicable laws, statutes,
regulations, rules, ordinances, codes, licenses, permits, notices and orders,
from time to time in existence, of all courts of competent jurisdiction and
Government Agencies, and all applicable judicial and administrative and
regulatory decrees, judgments and orders, including common law rulings and
determinations, relating to injury to, conservation of, or the protection of,
real or personal property, Transferred Trademarks or human health or the
Environment, including, without limitation, all valid and lawful requirements of
courts and other Government Agencies pertaining to reporting, licensing,
permitting, investigation, remediation and removal of underground improvements
(including, without limitation, treatment or storage tanks, or water, natural
gas or oil xxxxx), or emissions, discharges, releases or threatened releases of
Hazardous Substances, chemical substances, pesticides, petroleum or petroleum
products, pollutants, contaminants or hazardous or toxic substances, materials
or wastes whether solid, liquid or gaseous in nature, into the Environment, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Substances, underground
improvements (including, without limitation, treatment or storage tanks, or
water, gas or oil xxxxx), or pollutants, contaminants or hazardous or toxic
substances, materials or wastes, whether solid, liquid or gaseous in nature.
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1.7 "AWARD" shall mean all compensation, sums or other value awarded,
paid or received by virtue of a total or partial Condemnation of any Property
(after deduction of all reasonable legal fees and other reasonable costs and
expenses, including, without limitation, expert witness fees, incurred by
Landlord, in connection with obtaining any such award).
1.8 "BASE FUEL GROSS REVENUES" shall mean, with respect to any
Property, the amount of Gross Fuel Revenues for such Property for the Base
Year; PROVIDED, HOWEVER, that, with respect to any Property then subject to a
TA Franchise Agreement, Base Fuel Gross Revenues shall be the Gross Fuel
Revenues of the franchisee under the TA Franchise Agreement for the Base Year
(as reported by such franchisee pursuant to the applicable TA Franchise
Agreement) and not include amounts otherwise payable to the franchisor under
such TA Franchise Agreement.
1.9 "BASE NON-FUEL GROSS REVENUES" shall mean, with respect to any
Property, the amount of Gross Non-Fuel Revenues for such Property for the
Base Year; PROVIDED, HOWEVER, that, with respect to any Property then subject
to a TA Franchise Agreement, Base Non-Fuel Gross Revenues shall be the Gross
Non-Fuel Revenues of the franchisee under the TA Franchise Agreement for the
Base Year (as reported by such franchisee pursuant to the applicable TA
Franchise Agreement) and not include amounts otherwise payable to the
franchisor under such TA Franchise Agreement.
1.10 "BASE YEAR" shall mean the 2011 calendar year.
1.11 "BUSINESS DAY" shall mean any day other than Saturday, Sunday, or
any other day on which banking institutions in The Commonwealth of Massachusetts
are authorized by law or executive action to close.
1.12 "CAPITAL ADDITION" shall mean, with respect to any Property, any
renovation, repair or improvement to such Property, the cost of which
constitutes a Capital Expenditure.
1.13 "CAPITAL EXPENDITURE" shall mean any expenditure treated as
capital in nature in accordance with GAAP.
1.14 "CAPITAL REPLACEMENTS BUDGET" shall have the meaning given such
term in SECTION 5.1.1(b).
1.15 "CHANGE IN CONTROL" shall mean (a) the acquisition by any Person,
or two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the SEC) of 9.8% or more, or rights, options or
warrants to acquire 9.8% or more, of the outstanding shares of voting stock or
other voting interests of Tenant or any Guarantor, as the case may be,
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or the power to direct the management and policies of Tenant or any Guarantor,
directly or indirectly, (b) the merger or consolidation of Tenant or any
Guarantor with or into any other Person (other than the merger or consolidation
of any Person into Tenant or any Guarantor that does not result in a Change in
Control of Tenant or such Guarantor under clauses (a), (c) or (d) of this
definition), (c) any one or more sales or conveyances to any Person of all or
any material portion of its assets (including capital stock or other equity
interests) or business of Tenant or any Guarantor, as the case may be, or (d)
the cessation, for any reason, of the individuals who at the beginning of any
twenty-four (24) consecutive month period (commencing on the Commencement Date)
constituted the board of directors of Tenant or any Guarantor (together with any
new directors whose election by such board or whose nomination for election by
the shareholders of Tenant or such Guarantor, as the case may be, was approved
by a vote of a majority of the directors then still in office who were either
directors at the beginning of any such period or whose election or nomination
for election was previously so approved) to constitute a majority of the board
of directors of Tenant or any Guarantor then in office.
1.16 "CLAIM" shall have the meaning given such term in ARTICLE 8.
1.17 "CODE" shall mean the Internal Revenue Code of 1986 and, to the
extent applicable, the Treasury Regulations promulgated thereunder, each as from
time to time amended.
1.18 "COMMENCEMENT DATE" shall mean the date hereof.
1.19 "CONDEMNATION" shall mean, with respect to any Property, or any
portion thereof, (a) the exercise of any governmental power with respect to such
Property, whether by legal proceedings or otherwise, by a Condemnor of its power
of condemnation, (b) a voluntary sale or transfer of such Property by Landlord
to any Condemnor, either under threat of condemnation or while legal proceedings
for condemnation are pending, or (c) a taking or voluntary conveyance of such
Property, or any interest therein, or right accruing thereto or use thereof, as
the result or in settlement of any condemnation or other eminent domain
proceeding affecting such Property, whether or not the same shall have actually
been commenced.
1.20 "CONDEMNOR" shall mean any public or quasi-public Person, having
the power of Condemnation.
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1.21 "CONSOLIDATED FINANCIALS" shall mean, for any Fiscal Year or other
accounting period of TCA, annual audited and quarterly unaudited financial
statements of TCA prepared on a consolidated basis, including TCA's consolidated
balance sheet and the related statements of income and cash flows, all in
reasonable detail, and setting forth in comparative form the corresponding
figures for the corresponding period in the preceding Fiscal Year, and prepared
in accordance with GAAP throughout the periods reflected.
1.22 "DATE OF TAKING" shall mean, with respect to any Property, the
date the Condemnor has the right to possession of such Property, or any portion
thereof, in connection with a Condemnation.
1.23 "DEFAULT" shall mean any event or condition which with the giving
of notice and/or lapse of time would be an Event of Default.
1.24 "DISBURSEMENT RATE" shall mean an annual rate of interest, as of
the date of determination, equal to the greater of (i) the Interest Rate and
(ii) the per annum rate for ten (10) year U.S. Treasury Obligations as published
in THE WALL STREET JOURNAL plus three hundred fifty (350) basis points.
1.25 "DISTRIBUTION" shall mean (a) any declaration or payment of any
dividend (except ordinary cash dividends payable in common stock or other equity
interests of Tenant) on or in respect of any shares of any class of capital
stock or other equity interests of Tenant, (b) any purchase, redemption,
retirement or other acquisition of any shares of any class of capital stock of a
corporation, (c) any other distribution on or in respect of any shares of any
class of capital stock of Tenant or (d) any return of capital to shareholders.
1.26 "EASEMENT AGREEMENT" shall mean any conditions, covenants and
restrictions, easements, declarations, licenses and other agreements which are
Permitted Encumbrances and such other agreements as may be granted in accordance
with SECTION 19.1.
1.27 "ENCUMBRANCE" shall have the meaning given such term in SECTION
20.1.
1.28 "ENTITY" shall mean any corporation, general or limited
partnership, limited liability company or partnership, stock company or
association, joint venture, association, company, trust, bank, trust company,
land trust, business trust,
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real estate investment trust, cooperative, any government or agency, authority
or political subdivision thereof or any other entity.
1.29 "ENVIRONMENT" shall mean soil, surface waters, ground waters,
land, biota, sediments, surface or subsurface strata and ambient air.
1.30 "ENVIRONMENTAL OBLIGATION" shall have the meaning given such term
in SECTION 4.3.1.
1.31 "ENVIRONMENTAL NOTICE" shall have the meaning given such term in
SECTION 4.3.1.
1.32 "ENVIRONMENTAL REPORT" shall have the meaning given such term in
SECTION 4.3.2.
1.33 "EVENT OF DEFAULT" shall have the meaning given such term in
SECTION 12.1.
1.34 "EXCESS FUEL GROSS REVENUES" shall mean, with respect to any
Property, with respect to any Lease Year, or portion thereof, the amount of
Gross Fuel Revenues for such Property for such Lease Year, or portion thereof,
in excess of Base Fuel Gross Revenues for such Property for the equivalent
period during the Base Year.
1.35 "EXCESS NON-FUEL GROSS REVENUES" shall mean, with respect to any
Property, with respect to any Lease Year, or portion thereof, the amount of
Gross Non-Fuel Revenues for such Property for such Lease Year, or portion
thereof, in excess of Base Non-Fuel Gross Revenues for such Property for the
equivalent period during the Base Year.
1.36 "EXISTING THIRD PARTY TRADE NAMES AND SERVICE XXXX RIGHTS" shall
mean the rights as set forth in any TA Franchise Agreement in effect as of the
Commencement Date licensed to third parties in the trade names, trademarks,
service marks, domain names, logos and other brand-source indicia. including all
goodwill related thereto which constitute a part of the Transferred Trademarks.
1.37 "FAIR MARKET VALUE" shall mean the price an unaffiliated and
willing buyer would pay for the interest of Landlord in the applicable Property
(or the interest of Tenant in the case of any Retained Buildings) in its
existing condition as of the date of determination, with all relevant factors
being
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known to both parties, under terms and conditions customary for like
transactions in the area in which the Property is located.
1.38 "FAIR MARKET VALUE RENT" shall mean the per annum minimum rent
which would be payable monthly in advance for the applicable Property in its
then current condition and for its then current use, on the terms and conditions
of this Agreement (including, without limitation, the obligation to pay
Additional Rent).
1.39 "FINANCIAL OFFICER'S CERTIFICATE" shall mean, as to any Person, a
certificate of the chief executive officer, chief financial officer or chief
accounting officer (or such officers' authorized designee) of such Person, duly
authorized, accompanying the financial statements required to be delivered by
such Person pursuant to SECTION 17.2, in which such officer shall certify (a)
that such statements have been properly prepared in accordance with GAAP and are
true, correct and complete in all material respects and fairly present the
consolidated financial condition of such Person at and as of the dates thereof
and the results of its operations for the periods covered thereby, and (b) in
the event that the certifying party is an officer of Tenant and the certificate
is being given in such capacity, that no Event of Default has occurred and is
continuing hereunder.
1.40 "FISCAL YEAR" shall mean the calendar year or such other annual
period designated by Tenant and approved by Landlord.
1.41 "FIXTURES" shall have the meaning given such term in SECTION
2.1(d).
1.42 "FUEL SALES CAP" shall mean, for the 2012 Lease Year, three tenths
of one percent (0.3%) of the aggregate Base Fuel Gross Revenues for the Leased
Property; and, for each Lease Year thereafter, (x) the Additional Rent on
account of Excess Fuel Gross Revenues for the prior Lease Year multiplied by (y)
the greater of one, or a fraction, the numerator of which is the Index for
January of the then current Lease Year and the denominator of which is the Index
for January of the preceding Lease Year.
1.43 "GAAP" shall mean generally accepted accounting principles
consistently applied.
1.44 "GOVERNMENT AGENCIES" shall mean any court, agency, authority,
board (including, without limitation, environmental
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protection, planning and zoning), bureau, commission, department, office or
instrumentality of any nature whatsoever of any governmental or
quasi-governmental unit of the United States or any State or any county or any
political subdivision of any of the foregoing, whether now or hereafter in
existence, having jurisdiction over Tenant or any Property, or any portion
thereof, or any Travel Center operated thereon.
1.45 "GROSS FUEL REVENUES" shall mean, with respect to any Property,
for each Fiscal Year during the Term, all revenues and receipts (determined
on an accrual basis and in all material respects in accordance with GAAP) of
every kind derived from the provision, sale or trade of motor fuel and
gasoline at such Property; PROVIDED, HOWEVER, that Gross Fuel Revenues shall
not include the following: allowances according to GAAP for uncollectible
accounts, including credit card accounts and other administrative discounts;
federal, state or municipal excise, sales, use, occupancy or similar taxes
included as part of the sales price of any goods or services; insurance
proceeds (other than proceeds from business interruption or other loss of
income insurance); and any amounts included in Gross Non-Fuel Revenues;
FURTHER, PROVIDED, that, with respect to any Property subject to a TA
Franchise Agreement, Gross Fuel Revenues shall be the Gross Fuel Revenues of
the franchisee under the TA Franchise Agreement (as reported by such
franchisee pursuant to the applicable TA Franchise Agreement to the extent
compliant with Section 856(d)(2) of the Code) and not include amounts
otherwise payable to the franchisor under such TA Franchise Agreement.
1.46 "GROSS NON-FUEL REVENUES" shall mean, with respect to any
Property, for each Fiscal Year during the Term, all revenues and receipts
(determined on an accrual basis and in all material respects in accordance with
GAAP) of every kind derived from renting, using and/or operating such Property
and parts thereof, including, but not limited to: all rents and revenues
received or receivable for the use of or otherwise by reason of all goods sold,
services performed, space or facilities subleased on such Property, or any
portion thereof, including, without limitation, any other arrangements with
third parties relating to the possession or use of any portion of such Property;
and proceeds, if any, from business interruption or other loss of income
insurance; PROVIDED, HOWEVER, that Gross Non-Fuel Revenues shall not include the
following: allowances according to GAAP for uncollectible accounts, including
credit card accounts and other administrative discounts; federal, state or
municipal excise, sales, use, occupancy or similar taxes included as part of the
sales price of any goods or services; insurance proceeds (other than proceeds
from business interruption or other loss of income
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insurance); Award proceeds (other than for a temporary Condemnation); any
proceeds from any sale of such Property or from the refinancing of any debt
encumbering such Property; proceeds from the disposition of furnishings,
fixture and equipment no longer necessary for the operation of the Travel
Center located thereon; any security deposits and other advance deposits,
until and unless the same are forfeited to Tenant or applied for the purpose
for which they were collected; interest income from any bank account or
investment of Tenant; and any amounts included in Gross Fuel Revenues;
FURTHER, PROVIDED, that, with respect to any Property subject to a TA
Franchise Agreement, Gross Non-Fuel Revenues shall be the Gross Non-Fuel
Revenues of the franchisee under the TA Franchise Agreement (as reported by
such franchisee pursuant to the applicable TA Franchise Agreement to the
extent compliant with Section 856(d)(2) of the Code) and not include amounts
otherwise payable to the franchisor under such TA Franchise Agreement.
1.47 "GROUND LEASES" shall mean, collectively, any and all ground
leases in effect with respect to any portion of the Real Property.
1.48 "GUARANTOR" shall mean, collectively, TCA, Subtenant,
TravelCenters of America Holding Company LLC, and each and every other
guarantor of Tenant's obligations under this Agreement, and each such
guarantor's successors and assigns, jointly and severally.
1.49 "GUARANTY" shall mean any guaranty agreement executed by a
Guarantor in favor of Landlord pursuant to which the payment or performance of
Tenant's obligations under this Agreement are guaranteed, together with all
modifications, amendments and supplements thereto.
1.50 "HAZARDOUS SUBSTANCES" shall mean any substance:
(a) the presence of which requires or may hereafter require
notification, investigation or remediation under any Applicable Law; or
(b) which is or becomes defined as a "hazardous waste", "hazardous
material" or "hazardous substance" or "pollutant" or "contaminant" under any
Applicable Law including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. Section 9601 ET SEQ.) and
the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 ET SEQ.) and
the regulations promulgated thereunder; or
(c) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous and is or becomes
regulated by any Governmental Agencies; or
(d) the presence of which on any Property, or any portion thereof,
causes or materially threatens to cause an unlawful nuisance upon such Property,
or any portion thereof, or to adjacent properties or poses or materially
threatens to pose a hazard to such Property, or any portion thereof, or to the
health or safety of persons; or
(e) without limitation, which contains gasoline, diesel fuel or other
petroleum hydrocarbons or volatile organic compounds; or
(f) without limitation, which contains polychlorinated biphenyls (PCBs)
or asbestos or urea formaldehyde foam insulation; or
(g) without limitation, which contains or emits radioactive particles,
waves or material.
1.51 "IMMEDIATE FAMILY" shall mean, with respect to any individual,
such individual's spouse, parents, brothers, sisters, children (natural or
adopted), stepchildren, grandchildren, grandparents, parents-in-law,
brothers-in-law, sisters-in-law, nephews and nieces.
1.52 "IMPOSITIONS" shall mean, collectively, all taxes (including,
without limitation, all taxes imposed under the laws of any State, as such laws
may be amended from time to time, and all ad valorem, sales and use, occupancy,
or similar taxes as the same relate to or are imposed upon Landlord, Tenant or
the business conducted upon the Leased Property), assessments (including,
without limitation, all assessments for public improvements or benefit, whether
or not commenced or completed prior to the date hereof), ground rents (including
any minimum rent under any ground lease, and any additional rent or charges
thereunder), water, sewer or other rents and charges, excises, tax levies, fees
(including, without limitation, license, permit, inspection, authorization and
similar fees), and all other governmental charges, in each case whether general
or special, ordinary or extraordinary, foreseen or unforeseen, of every
character in respect of the Leased Property or the business conducted upon the
Leased Property by Tenant (including all interest and penalties thereon due to
any failure in payment
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by Tenant), which at any time prior to, during or in respect of the Term hereof
may be assessed or imposed on or in respect of or be a lien upon (a) Landlord's
interest in the Leased Property, (b) the Leased Property or any part thereof or
any rent therefrom or any estate, right, title or interest therein, or (c) any
occupancy, operation, use or possession of, or sales from, or activity conducted
on, or in connection with the Leased Property or the leasing or use of the
Leased Property or any part thereof by Tenant; PROVIDED, HOWEVER, that nothing
contained herein shall be construed to require Tenant to pay and the term
"Impositions" shall not include (i) any tax based on net income imposed on
Landlord, (ii) any net revenue tax of Landlord, (iii) any transfer fee (but
excluding any mortgage or similar tax payable in connection with a Property
Mortgage) or other tax imposed with respect to the sale, exchange or other
disposition by Landlord of the Leased Property or the proceeds thereof, (iv) any
single business, gross receipts tax, transaction privilege, rent or similar
taxes as the same relate to or are imposed upon Landlord, (v) any interest or
penalties imposed on Landlord as a result of the failure of Landlord to file any
return or report timely and in the form prescribed by law or to pay any tax or
imposition, except to the extent such failure is a result of a breach by Tenant
of its obligations pursuant to SECTION 3.1.3, (vi) any impositions imposed on
Landlord that are a result of Landlord not being considered a "United States
person" as defined in Section 7701(a)(30) of the Code, (vii) any impositions
that are enacted or adopted by their express terms as a substitute for any tax
that would not have been payable by Tenant pursuant to the terms of this
Agreement or (viii) any impositions imposed as a result of a breach of covenant
or representation by Landlord in any agreement governing Landlord's conduct or
operation or as a result of the negligence or willful misconduct of Landlord.
1.53 "INDEBTEDNESS" shall mean (without duplication), (i) all
obligations for borrowed money, (ii) the maximum amount available to be drawn
under all surety bonds, letters of credit and bankers' acceptances issued or
created for the account of Tenant and, without duplication, all unreimbursed
drafts drawn thereunder, (iii) all obligations to pay the deferred purchase
price of property or services, excluding trade payables incurred in the ordinary
course of business, but including all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by Tenant, (iv) all leases required, in accordance with GAAP, to be
recorded as capital leases on Tenant's balance sheet, (v) the principal balance
outstanding and owing by Tenant
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under any synthetic lease, tax retention operating lease or similar off-balance
sheet financing product, and (vi) all guaranties of or other liabilities with
respect to the debt of another Person.
1.54 "INDEX" shall mean the Consumer Price Index for Urban Wage Earners
and Clerical Workers, U.S., All Items, 1982-1984=100. The Index is presently
published by the Bureau of Labor Statistics of the United States Department of
Labor. If publication of the Index ceases, computations with respect to which
the Index is to be applied shall be computed on the basis of whatever index
published by the United States Department of Labor at that time is most nearly
comparable. If the Index ceases to use 1982-84=100 as the basis of calculation,
then the Index shall be converted to the amount(s) that would have resulted had
the manner of calculating the Index in effect at the Commencement Date.
1.55 "INSURANCE REQUIREMENTS" shall mean all terms of any insurance
policy required by this Agreement and all requirements of the issuer of any such
policy and all orders, rules and regulations and any other requirements of the
National Board of Fire Underwriters (or any other body exercising similar
functions) binding upon Landlord, Tenant, any Manager or the Leased Property.
1.56 "INTEREST RATE" shall mean eight and one half percent (8.5%) per
annum.
1.57 "LAND" shall have the meaning given such term in SECTION 2.1(a).
1.58 "LANDLORD" shall have the meaning given such term in the preambles
to this Agreement and shall also include their respective permitted successors
and assigns.
1.59 "LANDLORD DEFAULT" shall have the meaning given such term in
ARTICLE 14.
1.60 "LANDLORD LIENS" shall mean liens on or against the Leased
Property or any payment of Rent (a) which result from any act of, or any claim
against, Landlord or any owner of a direct or indirect interest in the Leased
Property (other than the lessor under any ground lease affecting any portion of
the Leased Property), or which result from any violation by Landlord of any
terms of this Agreement, or (b) which result from liens in favor of any taxing
authority by reason of any tax owed by Landlord or any fee owner of a direct or
indirect interest in
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the Leased Property (other than the lessor under any ground lease affecting any
portion of the Leased Property); PROVIDED, HOWEVER, that "LANDLORD LIEN" shall
not include any lien resulting from any tax for which Tenant is obligated to pay
or indemnify Landlord against until such time as Tenant shall have already paid
to or on behalf of Landlord the tax or the required indemnity with respect to
the same.
1.61 "LEASE YEAR" shall mean any Fiscal Year or portion thereof during
the Term.
1.62 "LEASED IMPROVEMENTS" shall have the meaning given such term in
SECTION 2.1(b).
1.63 "LEASED INTANGIBLE PROPERTY" shall mean all agreements, service
contracts, equipment leases and other arrangements or agreements affecting the
ownership, repair, maintenance, management, leasing or operation of the Leased
Property, or any portion thereof, to which Landlord is a party; all books,
records and files relating to the leasing, maintenance, management or operation
of the Leased Property, or any portion thereof, belonging to Landlord; all
transferable or assignable permits, certificates of occupancy, operating
permits, sign permits, development rights and approvals, certificates, licenses,
warranties and guarantees, rights to deposits and telephone exchange numbers
identified with the Leased Property; and all other transferable intangible
property, miscellaneous rights, benefits and privileges of any kind or character
belonging to Landlord with respect to the Leased Property.
1.64 "LEASED PROPERTY" shall have the meaning given such term in
SECTION 2.1.
1.65 "LEGAL REQUIREMENTS" shall mean all federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting the Leased Property or
the maintenance, construction, alteration or operation thereof, whether now or
hereafter enacted or in existence, including, without limitation, (a) all
permits, licenses, authorizations and regulations necessary to operate any
Property for its Permitted Use, and (b) all covenants, agreements, restrictions
and encumbrances contained in any instruments at any time in force affecting any
Property, including those which may (i) require material repairs, modifications
or alterations in or to any Property or (ii) in any way materially and adversely
affect the
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use and enjoyment thereof, but excluding any requirements arising as a result of
Landlord's status as a real estate investment trust.
1.66 "LIEN" shall mean any mortgage, security interest, pledge,
collateral assignment, or other encumbrance, lien or charge of any kind, or any
transfer of property or assets for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of general creditors.
1.67 "MANAGER" shall mean, with respect to any Property, the operator
or manager under any Management Agreement from time to time in effect with
respect to such Property, and its permitted successors and assigns.
1.68 "MANAGEMENT AGREEMENT" shall mean, with respect to any Property,
any operating, management, franchise or branding agreement from time to time
entered into by Tenant with respect to such Property in accordance with the
applicable provisions of this Agreement, together with all amendments,
modifications and supplements thereto, excluding, however, any TA Franchise
Agreement.
1.69 "MINIMUM RENT" shall mean (a) with respect to the period
commencing on the Commencement Date and expiring on the day preceding the first
anniversary of the Commencement Date, $153,500,000 per annum; (b) with respect
to the period commencing on the first anniversary of the Commencement Date and
expiring on the day preceding the second anniversary of the Commencement Date,
$157,000,000 per annum; (c) with respect to the period commencing on the second
anniversary of the Commencement Date and expiring on the day preceding the third
anniversary of the Commencement Date, $161,000,000 per annum; (d) with respect
to the period commencing on the third anniversary of the Commencement Date and
expiring on the day preceding the fourth anniversary of the Commencement Date,
$165,000,000 per annum; (e) with respect to the period commencing on the fourth
anniversary of the Commencement Date and expiring on the day preceding the fifth
anniversary of the Commencement Date, $170,000,000 per annum; and (f) with
respect to the period commencing on the fifth anniversary of the Commencement
Date and thereafter, $175,000,000 per annum; subject, in each case, to
adjustment as provided in SECTION 3.1.1(b).
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1.70 "NOTICE" shall mean a notice given in accordance with SECTION
23.10.
1.71 "OFFICER'S CERTIFICATE" shall mean a certificate signed by an
officer or other duly authorized individual of the certifying Entity duly
authorized by the board of directors or other governing body of the certifying
Entity.
1.72 "OPERATING RIGHTS" shall have the meaning given such term in
Section 5.3.
1.73 "OVERDUE RATE" shall mean, on any date, a per annum rate of
interest equal to the lesser of the Disbursement Rate plus four percent (4%) and
the maximum rate then permitted under applicable law.
1.74 "PARENT" shall mean, with respect to any Person, any Person which
owns directly, or indirectly through one or more Subsidiaries or Affiliated
Persons, twenty percent (20%) or more of the voting or beneficial interest in,
or otherwise has the right or power (whether by contract, through ownership of
securities or otherwise) to control, such Person.
1.75 "PERMITTED ENCUMBRANCES" shall mean, with respect to any Property,
all rights, restrictions, and easements of record set forth on Schedule B to the
applicable owner's or leasehold title insurance policy issued to Landlord with
respect to such Property, plus any other encumbrances as may have been granted
or caused by Landlord or otherwise consented to in writing by Landlord from time
to time.
1.76 "PERMITTED LIENS" shall mean any Liens granted in accordance with
SECTION 21.8(a).
1.77 "PERMITTED USE" shall mean, with respect to any Property, any use
of such Property permitted pursuant to SECTION 4.1.1.
1.78 "PERSON" shall mean any individual or Entity, and the heirs,
executors, administrators, legal representatives, successors and assigns of such
Person where the context so admits.
1.79 "PROPERTY" shall have the meaning given such term in SECTION 2.1.
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1.80 "PROPERTY MORTGAGE" shall mean any Encumbrance placed upon the
Leased Property, or any portion thereof, in accordance with ARTICLE 20.
1.81 "PROPERTY MORTGAGEE" shall mean the holder of any Property
Mortgage.
1.82 "REAL PROPERTY" shall have the meaning given such term in Section
2.1.
1.83 "RENT" shall mean, collectively, the Minimum Rent, Additional Rent
and Additional Charges.
1.84 "RETAINED BUILDINGS" shall mean all buildings, structures and
other improvements of every kind including, but not limited to, underground
storage tanks, including alleyways and connecting tunnels, sidewalks, utility
pipes, conduits and lines (on-site and off-site), parking areas and roadways
appurtenant to such buildings and structures presently located at the
addresses listed on Exhibit B attached hereto and made a part hereof, and all
equipment, machinery and fixtures integral to the operation of such
buildings, structures and improvements.
1.85 "XXXX" shall mean the Superfund Amendments and Reauthorization Act
of 1986, as the same has been and may be amended, restated, modified or
supplemented from time to time.
1.86 "SEC" shall mean the Securities and Exchange Commission.
1.87 "STATE" shall mean, with respect to any Property, the state,
commonwealth or district in which such Property is located.
1.88 "SUBORDINATED CREDITOR" shall mean any creditor of Tenant which is
a party to a Subordination Agreement in favor of Landlord.
1.89 "SUBORDINATION AGREEMENT" shall mean any agreement (and any
amendments thereto) executed by a Subordinated Creditor pursuant to which the
payment and performance of Tenant's obligations to such Subordinated Creditor
are subordinated to the payment and performance of Tenant's obligations to
Landlord under this Agreement.
1.90 "SUBSIDIARY" shall mean, with respect to any Person, any Entity
(a) in which such Person owns directly, or indirectly through one or more
Subsidiaries, twenty percent (20%) or more of the voting or beneficial interest
or (b) which such Person otherwise has the right or power to control (whether by
contract, through ownership of securities or otherwise).
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1.91 "SUBTENANT" shall mean TA Operating LLC, a Delaware limited
liability company, and its permitted successors and assigns.
1.92 "SUCCESSOR LANDLORD" shall have the meaning given such term in
SECTION 20.2.
1.93 "SUPERIOR LANDLORD" shall have the meaning given such term in
SECTION 20.2.
1.94 "SUPERIOR LEASE" shall have the meaning given such term in SECTION
20.2.
1.95 "SUPERIOR MORTGAGE" shall have the meaning given such term in
SECTION 20.2.
1.96 "SUPERIOR MORTGAGEE" shall have the meaning given such term in
SECTION 20.2.
1.97 "TA FRANCHISE AGREEMENT" shall mean a franchise agreement and, if
applicable, any network lease agreement associated with such franchise
agreement, between TCA, or one of its Affiliated Persons, as franchisor, and a
Person who is not an Affiliated Person of TCA, as franchisee, for the operation
of a Travel Center or other hospitality, fuel and/or service facility by such
Person.
1.98 "TCA" shall mean TravelCenters of America LLC, a Delaware limited
liability company, and its permitted successors and assigns.
1.99 "TENANT" shall have the meaning given such term in the preambles
to this Agreement and shall also include its permitted successors and assigns.
1.100 "TENANT'S PERSONAL PROPERTY" shall mean all motor vehicles and
consumable inventory and supplies, furniture, furnishings, equipment, movable
walls and partitions, equipment and machinery and all other tangible personal
property of Tenant acquired by Tenant before, on or after the Commencement
Date and located at the Leased Property or used in Tenant's business at the
Leased Property and all modifications, replacements, alterations and
additions to such personal property installed at the expense of Tenant, other
than any items included within the definition of Fixtures which are not
located at the Retained Buildings.
1.101 "TERM" shall have the meaning given such term in SECTION 2.3.
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1.102 "TRANSFERRED TRADEMARKS" shall mean all trade names, trademarks,
service marks, domain names, logos and other brand-source indicia, including all
goodwill related thereto, owned by or licensed to Landlord and used in
connection with any Travel Center or any other hospitality, fuel and service
facility including without limitation trade names, trademarks, service marks,
domain names, logos and other brand-source indicia, including all goodwill
related thereto, such as "TravelCenters of America", "TA", "Goasis", "Country
Pride", "Fork in the Road" and "Buckhorn Family Restaurants" whether or not used
at or on the Real Property; and all other licensable intellectual property of
any kind or character belonging to Landlord with respect to the Leased Property.
1.103 "TRAVEL CENTER" shall mean, with respect to any Property,
collectively, the hospitality, fuel and service facilities located at such
Property, including, hotel, food and beverage services facilities, fuel pumps,
facilities for the storage and distribution of petroleum products, retail shops
and other facilities and services being operated or proposed to be operated on
such Property.
1.104 "UNSUITABLE FOR ITS PERMITTED USE" shall mean, with respect to
any Travel Center, a state or condition such that following any damage,
destruction or Condemnation, such Travel Center cannot be operated on a
commercially practicable basis for its Permitted Use and it cannot reasonably be
expected to be restored to substantially the same condition as existed
immediately before such damage, destruction or Condemnation, and as otherwise
required by this Agreement, within twenty-four (24) months following such
damage, destruction or Condemnation or such longer period of time as to which
business interruption insurance or Award proceeds is available to cover Rent and
other costs related to the applicable Property following such damage,
destruction or Condemnation.
1.105 "WORK" shall have the meaning given such term in SECTION 10.2.4.
ARTICLE 2
LEASED PROPERTY AND TERM
2.1 LEASED PROPERTY. Upon and subject to the terms and conditions
hereinafter set forth, Landlord leases and licenses to Tenant and Tenant leases
and licenses from Landlord all of Landlord's right, title and interest
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in and to all of the following (each of items (a) through (f) below which, as
of the Commencement Date, relates to any single Travel Center, a "PROPERTY"
and together with item (g) below, collectively, the "LEASED PROPERTY", and
those portions of the Leased Property described in items (a) through (d)
below being the "REAL PROPERTY"), Landlord having no right, title or interest
in the Retained Buildings:
(a) those certain tracts, pieces and parcels of land, as more
particularly described in EXHIBITS A-1 THROUGH A-146, attached hereto and made a
part hereof (the "LAND");
(b) all buildings, structures and other improvements of every kind
including, but not limited to, underground storage tanks, alleyways and
connecting tunnels, sidewalks, utility pipes, conduits and lines (on-site and
off-site), parking areas and roadways appurtenant to such buildings and
structures presently situated upon the Land (collectively, the "LEASED
IMPROVEMENTS");
(c) all easements, rights and appurtenances relating to the Land and
the Leased Improvements;
(d) all equipment, machinery, and fixtures integral to the operation
of the Leased Improvements and other items of property, now or hereafter
permanently affixed or integral to or incorporated into the Leased
Improvements, including, without limitation, all furnaces, boilers, heaters,
electrical equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste disposal,
air-cooling and air-conditioning systems and apparatus, sprinkler systems and
fire and theft protection equipment, all of which, to the maximum extent
permitted by law, are hereby deemed by the parties hereto to constitute real
estate, together with all replacements, modifications, alterations and
additions thereto, but specifically excluding all items included within the
category of Tenant's Personal Property (collectively, the "FIXTURES");
(e) all of the Leased Intangible Property;
(f) any and all leases of space in the Leased Improvements; and
(g) all of the Transferred Trademarks whether or not used at or on
any Property (such rights of Tenant in the Transferred Trademarks being
nonexclusive, worldwide, non-assignable but sublicensable to the extent
expressly set forth in this Agreement).
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2.2 CONDITION OF LEASED PROPERTY. Tenant acknowledges receipt and
delivery of possession of the Leased Property and Tenant accepts the Leased
Property in its "as is" condition, subject to the rights of parties in
possession, the existing state of title, including all covenants, conditions,
restrictions, reservations, mineral leases, easements and other matters of
record or that are visible or apparent on the Leased Property, all applicable
Legal Requirements, the lien of any financing instruments, mortgages and deeds
of trust existing prior to the Commencement Date or permitted by the terms of
this Agreement, and such other matters which would be disclosed by an inspection
of the Leased Property and the record title thereto or by an accurate survey
thereof. TENANT REPRESENTS THAT IT HAS INSPECTED THE LEASED PROPERTY AND ALL OF
THE FOREGOING AND HAS FOUND THE CONDITION THEREOF SATISFACTORY AND IS NOT
RELYING ON ANY REPRESENTATION OR WARRANTY OF LANDLORD OR LANDLORD'S AGENTS OR
EMPLOYEES WITH RESPECT THERETO AND TENANT WAIVES ANY CLAIM OR ACTION AGAINST
LANDLORD IN RESPECT OF THE CONDITION OF THE LEASED PROPERTY. LANDLORD MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED
PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR
CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, AS TO THE QUALITY OF
THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, IT BEING AGREED THAT ALL
SUCH RISKS ARE TO BE BORNE BY TENANT. To the maximum extent permitted by law,
however, Landlord hereby assigns to Tenant all of Landlord's rights to proceed
against any predecessor in interest or insurer for breaches of warranties or
representations or for latent defects in the Leased Property. Landlord shall
fully cooperate with Tenant in the prosecution of any such claims, in Landlord's
or Tenant's name, all at Tenant's sole cost and expense. Tenant shall indemnify,
defend, and hold harmless Landlord from and against any loss, cost, damage or
liability (including reasonable attorneys' fees) incurred by Landlord in
connection with such cooperation.
2.3 TERM. The term of this Agreement (the "TERM") shall commence on the
Commencement Date and shall expire on December 31, 2022.
The term hereof with respect to the Existing Third Party Trade Names
and Service Xxxx Rights shall be co-terminous with the duration of the third
party rights thereto as of the Commencement Date and may extend beyond the Term
or any earlier termination of the Term hereof (but not later than December 31,
2027), and Tenant's obligations hereunder to Landlord with respect to any such
Existing Third Party Trade Names and Service
20
Xxxx Rights shall apply throughout such additional period as if it were part of
the Term; Tenant hereby representing that such extension for the period beyond
what would have been the Term had it expired by passage of time does not apply
to more than five (5) Travel Centers or other hospitality, fuel and service
facilities in the aggregate.
ARTICLE 3
RENT
3.1 RENT. Tenant shall pay, in lawful money of the United States of
America which shall be legal tender for the payment of public and private debts,
without offset, abatement, demand or deduction (unless otherwise expressly
provided in this Agreement), Minimum Rent and Additional Rent to Landlord and
Additional Charges to the party to whom such Additional Charges are payable,
during the Term. All payments to Landlord shall be made by wire transfer of
immediately available federal funds or by other means acceptable to Landlord in
its sole discretion. Rent for any partial calendar month shall be prorated on a
per diem basis.
3.1.1 MINIMUM RENT.
(a) PAYMENTS. Minimum Rent shall be paid in equal monthly
installments in arrears on the first Business Day of each calendar
month during the Term.
(b) ADJUSTMENTS OF MINIMUM RENT FOLLOWING DISBURSEMENTS UNDER
SECTIONS 5.1.2(B), 10.2.3 AND 11.2. Effective on the date of each
disbursement to pay for the cost of any repairs, maintenance,
renovations or replacements pursuant to SECTIONS 5.1.2(B), 10.2.3 OR
11.2, the annual Minimum Rent shall be increased by a PER ANNUM amount
equal to the Disbursement Rate times the amount so disbursed.
3.1.2 ADDITIONAL RENT.
(a) AMOUNT. Tenant shall pay additional rent ("ADDITIONAL
RENT") with respect to each Lease Year during the Term subsequent to
the Base Year, with respect to each Property, in an amount equal to the
sum of (x) three-tenths of one percent (0.3%) of Excess Fuel Gross
Revenues at such Property and (y) three percent (3%) of Excess Non-Fuel
Gross Revenues at such Property; PROVIDED, HOWEVER, that in no Lease
Year shall Tenant be obligated to pay an aggregate
21
amount on account of Excess Fuel Gross Revenues at the Leased Property
in excess of the Fuel Sales Cap.
(b) QUARTERLY INSTALLMENTS. Installments of Additional Rent
for each Lease Year during the Term, or portion thereof, shall be
calculated and paid quarterly in arrears, on the first Business Day of
the subsequent quarter, together with an Officer's Certificate setting
forth the calculation of Additional Rent due and payable for such
quarter.
(c) RECONCILIATION OF ADDITIONAL RENT. In addition, within
seventy-five (75) days after the end of the Base Year and each Lease
Year thereafter (or any portion thereof occurring during the Term),
Tenant shall deliver, or cause to be delivered, to Landlord (i) a
financial report setting forth the Gross Fuel Revenues and Gross
Non-Fuel Revenues for each Property for such preceding Lease Year, or
portion thereof, together with an Officer's Certificate from Tenant's
chief financial or accounting officer certifying that such report is
true and correct, (ii) an audit of Gross Fuel Revenues and Gross
Non-Fuel Revenues prepared by a firm of independent certified public
accountants proposed by Tenant and approved by Landlord (which approval
shall not be unreasonably withheld, delayed or conditioned), and (iii)
a statement showing Tenant's calculation of Additional Rent due for
such preceding Lease Year based on the Gross Fuel Revenues and Gross
Non-Fuel Revenues set forth in such financial report, together with an
Officer's Certificate from Tenant's chief financial or accounting
officer certifying that such statement is true and correct.
If the annual Additional Rent for such preceding Lease Year as
set forth in Tenant's statement thereof exceeds the amount previously
paid with respect thereto by Tenant, Tenant shall pay such excess to
Landlord at such time as the statement is delivered, together with
interest at the Interest Rate, which interest shall accrue from the
close of such preceding Lease Year until the date that such statement
is required to be delivered and, thereafter, such interest shall accrue
at the Overdue Rate, until the amount of such difference shall be paid
or otherwise discharged. If the annual Additional Rent for such
preceding Lease Year as shown in such statement is less than the amount
previously paid with respect thereto by Tenant, Landlord shall grant
Tenant a credit against the Additional Rent next coming due in the
amount of such difference, together with
22
interest at the Interest Rate, which interest shall accrue from the
date of payment by Tenant until the date such credit is applied or
paid, as the case may be. If such credit cannot be made because the
Term has expired prior to application in full thereof, Landlord shall
pay the unapplied balance of such credit to Tenant, together with
interest at the Interest Rate, which interest shall accrue from the
date of payment by Tenant until the date of payment by Landlord.
(d) CONFIRMATION OF ADDITIONAL RENT. Tenant shall utilize, or
cause to be utilized, an accounting system for the Leased Property in
accordance with its usual and customary practices and in all material
respects in accordance with GAAP, which will accurately record all
Gross Fuel Revenues and all Gross Non-Fuel Revenues and Tenant shall
retain, for at least three (3) years after the expiration of each Lease
Year, reasonably adequate records conforming to such accounting system
showing all Gross Fuel Revenues and Gross Non-Fuel Revenues for such
Lease Year. Landlord, at its own expense, shall have the right,
exercisable by Notice to Tenant, by its accountants or representatives,
to audit the information set forth in the Officer's Certificate
referred to in subparagraph (c) above and, in connection with any such
audit, to examine Tenant's books and records with respect thereto
(including supporting data and sales and excise tax returns). Landlord
shall begin such audit as soon as reasonably possible following its
receipt of the applicable Officer's Certificate and shall complete such
audit as soon as reasonably possible thereafter. All such audits shall
be performed at the location where such books and records are
customarily kept and in such a manner so as to minimize any
interference with Tenant's business operations. If any such audit
discloses a deficiency in the payment of Additional Rent and, either
Tenant agrees with the result of such audit or the matter is otherwise
determined, Tenant shall forthwith pay to Landlord the amount of the
deficiency, as finally agreed or determined, together with interest at
the Interest Rate, from the date such payment should have been made to
the date of payment thereof. If any such audit discloses that Tenant
paid more Additional Rent for any Lease Year than was due hereunder,
and either Landlord agrees with the result of such audit or the matter
is otherwise determined, Landlord shall, at Landlord's option, either
grant Tenant a credit or pay to Tenant an amount equal to the amount of
such overpayment against
23
Additional Rent next coming due in the amount of such difference, as
finally agreed or determined, together with interest at the Interest
Rate, which interest shall accrue from the time of payment by Tenant
until the date such credit is applied or paid, as the case may be;
PROVIDED, HOWEVER, that, upon the expiration or sooner termination of
the Term, Landlord shall pay the unapplied balance of such credit to
Tenant, together with interest at the Interest Rate, which interest
shall accrue from the date of payment by Tenant until the date of
payment from Landlord. Any dispute concerning the correctness of an
audit shall be settled by arbitration pursuant to the provisions of
ARTICLE 22.
Any proprietary information obtained by Landlord with respect
to Tenant pursuant to the provisions of this Agreement shall be treated
as confidential, except that such information may be disclosed or used,
subject to appropriate confidentiality safeguards, pursuant to court
order or in any litigation between the parties and except further that
Landlord may disclose such information to its prospective lenders,
provided that Landlord shall direct such lenders to maintain such
information as confidential. The obligations of Tenant and Landlord
contained in this SECTION 3.1.2 shall survive the expiration or earlier
termination of this Agreement.
3.1.3 ADDITIONAL CHARGES. In addition to the Minimum Rent and
Additional Rent payable hereunder, Tenant shall pay (or cause to be
paid) to the appropriate parties and discharge (or cause to be
discharged) as and when due and payable the following (collectively,
"ADDITIONAL CHARGES"):
(a) IMPOSITIONS. Subject to ARTICLE 8 relating to permitted
contests, Tenant shall pay, or cause to be paid, all Impositions before
any fine, penalty, interest or cost (other than any opportunity cost as
a result of a failure to take advantage of any discount for early
payment) may be added for non-payment, such payments to be made
directly to the taxing authorities where feasible, and shall promptly,
upon request, furnish to Landlord copies of official receipts or other
reasonably satisfactory proof evidencing such payments. If any such
Imposition may, at the option of the taxpayer, lawfully be paid in
installments (whether or not interest shall accrue on the unpaid
balance of such
24
Imposition), Tenant may exercise the option to pay the same (and any
accrued interest on the unpaid balance of such Imposition) in
installments and, in such event, shall pay, or cause to pay, such
installments during the Term as the same become due and before any
fine, penalty, premium, further interest or cost may be added thereto.
Landlord, at its expense, shall, to the extent required or permitted by
Applicable Law, prepare and file, or cause to be prepared and filed,
all tax returns and pay all taxes due in respect of Landlord's net
income, gross receipts, sales and use, single business, transaction
privilege, rent, ad valorem, franchise taxes and taxes on its capital
stock or other equity interests, and Tenant, at its expense, shall, to
the extent required or permitted by Applicable Laws and regulations,
prepare and file all other tax returns and reports in respect of any
Imposition as may be required by Government Agencies. If any refund
shall be due from any taxing authority in respect of any Imposition
paid by or on behalf of Tenant, the same shall be paid over to or
retained by Tenant. Landlord and Tenant shall, upon request of the
other, provide such data as is maintained by the party to whom the
request is made with respect to the Leased Property as may be necessary
to prepare any required returns and reports. In the event Government
Agencies classify any property covered by this Agreement as personal
property, Tenant shall file, or cause to be filed, all personal
property tax returns in such jurisdictions where it may legally so
file. Each party shall, to the extent it possesses the same, provide
the other, upon request, with cost and depreciation records necessary
for filing returns for any property so classified as personal property.
Where Landlord is legally required to file personal property tax
returns for property covered by this Agreement, Landlord shall provide
Tenant with copies of assessment notices in sufficient time for Tenant
to file a protest. All Impositions assessed against such personal
property shall be (irrespective of whether Landlord or Tenant shall
file the relevant return) paid by Tenant not later than the last date
on which the same may be made without interest or penalty, subject to
the provisions of ARTICLE 8.
Landlord shall give prompt Notice to Tenant of all Impositions
payable by Tenant hereunder of which Landlord at any time has
knowledge; PROVIDED, HOWEVER, that Landlord's failure to give any such
notice shall in no way diminish Tenant's obligation hereunder to pay
such Impositions.
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(b) UTILITY CHARGES. Tenant shall pay or cause to be paid all
charges for electricity, power, gas, oil, water and other utilities
used in connection with the Leased Property.
(c) INSURANCE PREMIUMS. Tenant shall pay or cause to be paid
all premiums for the insurance coverage required to be maintained
pursuant to ARTICLE 9.
(d) OTHER CHARGES. Tenant shall pay or cause to be paid all
other amounts, liabilities and obligations, including, without
limitation, ground rents, if any, and all amounts payable under any
equipment leases and all agreements to indemnify Landlord under SECTION
9.5.
(e) REIMBURSEMENT FOR ADDITIONAL CHARGES. If Tenant pays or
causes to be paid property taxes or similar or other Additional Charges
attributable to periods after the end of the Term, whether upon
expiration or sooner termination of this Agreement, Tenant may, within
a reasonable time after the end of the Term, provide Notice to Landlord
of its estimate of such amounts. Landlord shall promptly reimburse
Tenant for all payments of such taxes and other similar Additional
Charges that are attributable to any period after the Term of this
Agreement.
3.2 LATE PAYMENT OF RENT, ETC. If any installment of Minimum Rent,
Additional Rent or Additional Charges (but only as to those Additional
Charges which are payable directly to Landlord) shall not be paid within ten
(10) days after its due date, Tenant shall pay Landlord, on demand, as
Additional Charges, a late charge (to the extent permitted by law) computed
at the Overdue Rate on the amount of such installment, from the due date of
such installment to the date of payment thereof. To the extent that Tenant
pays any Additional Charges directly to Landlord or any Property Mortgagee
pursuant to any requirement of this Agreement, Tenant shall be relieved of
its obligation to pay such Additional Charges to the Entity to which they
would otherwise be due. If any payments due from Landlord to Tenant shall not
be paid within ten (10) days after its due date, Landlord shall pay to
Tenant, on demand, a late charge (to the extent permitted by law) computed at
the Overdue Rate on the amount of such installment from the due date of such
installment to the date of payment thereof.
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In the event of any failure by Tenant to pay any Additional
Charges when due, Tenant shall promptly pay and discharge, as
Additional Charges, every fine, penalty, interest and cost which is
added for non-payment or late payment of such items. Landlord shall
have all legal, equitable and contractual rights, powers and remedies
provided either in this Agreement or by statute or otherwise in the
case of non-payment of the Additional Charges as in the case of
non-payment of the Minimum Rent and Additional Rent.
3.3 NET LEASE, ETC. The Rent shall be absolutely net to
Landlord so that this Agreement shall yield to Landlord the full amount
of the installments or amounts of the Rent throughout the Term, subject
to any other provisions of this Agreement which expressly provide
otherwise, including those provisions for adjustment or abatement of
such Rent. Landlord and Tenant acknowledge and agree that none of the
Rent provided for under this Agreement is allocable to any personal
property included in the Leased Property.
3.4 NO TERMINATION, ABATEMENT, ETC. Except as otherwise
specifically provided in this Agreement, each of Landlord and Tenant,
to the maximum extent permitted by law, shall remain bound by this
Agreement in accordance with its terms and shall not take any action
without the consent of the other to modify, surrender or terminate this
Agreement. In addition, except as otherwise expressly provided in this
Agreement, Tenant shall not seek, or be entitled to, any abatement,
deduction, deferment or reduction of the Rent, or set-off against the
Rent, nor shall the respective obligations of Landlord and Tenant be
otherwise affected by reason of (a) any damage to or destruction of the
Leased Property, or any portion thereof, from whatever cause or any
Condemnation; (b) the lawful or unlawful prohibition of, or restriction
upon, Tenant's use of the Leased Property, or any portion thereof, or
the interference with such use by any Person or by reason of eviction
by paramount title; (c) any claim which Tenant may have against
Landlord by reason of any default (other than a monetary default) or
breach of any warranty by Landlord under this Agreement or any other
agreement between Landlord and Tenant, or to which Landlord and Tenant
are parties; (d) any bankruptcy, insolvency, reorganization,
composition, readjustment, liquidation, dissolution, winding up or
other proceedings affecting Landlord or any assignee or transferee of
Landlord; or (e) for any other cause whether similar or dissimilar to
any of the foregoing (other than a monetary default by Landlord).
Except as otherwise specifically provided in this Agreement, Tenant
hereby waives all rights arising from
27
and occurrence whatsoever, which may now or hereafter be conferred upon
it by law (a) to modify, surrender or terminate this Agreement or quit
or surrender the Leased Property, or any portion thereof, or (b) which
would entitle Tenant to any abatement, reduction, suspension or
deferment of the Rent or other sums payable or other obligations to be
performed by Tenant hereunder. The obligations of Tenant hereunder
shall be separate and independent covenants and agreements, and the
Rent and all other sums payable by Tenant hereunder shall continue to
be payable in all events unless the obligations to pay the same shall
be terminated pursuant to the express provisions of this Agreement.
ARTICLE 4
USE OF THE LEASED PROPERTY
4.1 PERMITTED USE.
4.1.1 PERMITTED USE.
(a) Tenant shall, at all times during the Term, and at any
other time that Tenant shall be in possession of any Property,
continuously use and operate, or cause to be used and operated, such
Property as a Travel Center, as currently operated, and any uses
incidental thereto. Tenant shall operate the Travel Centers under the
name Travel Centers of America or Goasis, or such other name as TCA
shall use for all or substantially all of the travel center locations
operated by it and its Affiliated Persons as of the Commencement Date.
Tenant shall not use (and shall not permit any Person to use) any
Property, or any portion thereof, for any other use without the prior
written consent of Landlord, which approval shall not be unreasonably
withheld, delayed or conditioned. No use shall be made or permitted to
be made of any Property and no acts shall be done thereon which will
cause the cancellation of any insurance policy covering such Property
or any part thereof (unless another adequate policy is available) or
which would constitute a default under any ground lease affecting such
Property, nor shall Tenant sell or otherwise provide, or permit to be
kept, used or sold in or about any Property any article which may be
prohibited by law or by the standard form of fire insurance policies,
or any other insurance policies required to be carried hereunder, or
fire underwriter's regulations. Tenant shall, at its sole cost (except
as expressly provided in
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SECTION 5.1.2(b)), comply or cause to be complied with all Insurance
Requirements. Tenant shall not take or omit to take, or permit to be
taken or omitted to be taken, any action, the taking or omission of
which materially impairs the value or the usefulness of any Property or
any part thereof for its Permitted Use.
(b) In the event that, in the reasonable determination of
Tenant, it shall no longer be economically practical to operate any
Property as currently operated, Tenant shall give Landlord Notice
thereof, which Notice shall set forth in reasonable detail the reasons
therefor. Thereafter, Landlord and Tenant shall negotiate in good faith
to agree on an alternative use for such Property, appropriate
adjustments to the Additional Rent and other related matters; PROVIDED,
HOWEVER, in no event shall the Minimum Rent be reduced or abated as a
result thereof. If Landlord and Tenant fail to agree on an alternative
use for such Property within sixty (60) days after commencing
negotiations as aforesaid, Tenant may market such Property for sale to
a third party. If Tenant receives a bona fide offer (an "OFFER") to
purchase such Property from a Person having the financial capacity to
implement the terms of such Offer, Tenant shall give Landlord Notice
thereof, which Notice shall include a copy of the Offer executed by
such third party. In the event that Landlord shall fail to accept or
reject such Offer within thirty (30) days after receipt of such Notice,
such Offer shall be deemed to be rejected by Landlord. If Landlord
shall sell the Property pursuant to such Offer, then, effective as of
the date of such sale, this Agreement shall terminate with respect to
such Property, and the Minimum Rent shall be reduced by an amount equal
to, at Landlord's option, (x) eight and one half percent (8.5%) of the
net proceeds of sale received by Landlord or (y) the Fair Market Value
Rent of the applicable Property on the Commencement Date, such Fair
Market Value Rent to be determined by agreement of the parties or,
absent agreement, by an appraiser designated by Landlord. If Landlord
shall reject (or be deemed to have rejected) such Offer, then,
effective as of the proposed date of such sale, this Agreement shall
terminate with respect to such Property, and the Minimum Rent shall be
reduced by an amount equal to, at Landlord's option, (x) eight and one
half percent (8.5%) of the projected net proceeds determined by
reference to such Offer (and, at Landlord's request, Tenant shall cause
TCA (or its Affiliated Persons) to enter into a franchise agreement on
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market terms with Landlord or Landlord's designee providing for the
operation of such Property by Landlord or such designee as a Travel
Center under the TCA brand) or (y) the Fair Market Value Rent of the
applicable Property on the Commencement Date, such Fair Market Value
Rent to be determined by agreement of the parties or, absent agreement,
by an appraiser designated by Landlord. Notwithstanding the foregoing,
Tenant shall not have the right to invoke the provisions of this
SECTION 4.1.1(b) with respect to more than 15 Properties during the
Term.
4.1.2 NECESSARY APPROVALS. Tenant shall proceed with all due
diligence and exercise reasonable efforts to obtain and maintain, or
cause to be obtained and maintained, all approvals necessary to use and
operate, for its Permitted Use, each Property and the Travel Center
located thereon under applicable law.
4.1.3 LAWFUL USE, ETC. Tenant shall not, and shall not permit
any Person to, use or suffer or permit the use of any Property or
Tenant's Personal Property, if any, for any unlawful purpose. Tenant
shall not, and shall not permit any Person to, commit or suffer to be
committed any waste on any Property, or in any Travel Center, nor shall
Tenant cause or permit any unlawful nuisance thereon or therein. Tenant
shall not, and shall not permit any Person to, suffer nor permit any
Property, or any portion thereof, to be used in such a manner as (i)
may materially and adversely impair Landlord's or Tenant's title
thereto or to any portion thereof, or (ii) may reasonably allow a claim
or claims for adverse usage or adverse possession by the public, as
such, or of implied dedication of such Property, or any portion
thereof.
4.2 COMPLIANCE WITH LEGAL/INSURANCE REQUIREMENTS, ETC. Subject
to the provisions of SECTION 5.1.2(b) and ARTICLE 8, Tenant, at its
sole expense, shall (i) comply with (or cause to be complied with) all
material Legal Requirements and Insurance Requirements in respect of
the use, operation, maintenance, repair, alteration and restoration of
any Property and with the terms and conditions of any ground lease
affecting any Property, (ii) perform (or cause to be performed) in a
timely fashion all of Landlord's obligations under any ground lease
affecting any Property and (iii) procure, maintain and comply with (or
cause to be procured, maintained and complied with) all material
licenses, permits and other authorizations and agreements required for
any use of any Property and Tenant's Personal Property, if any, then
being made, and for the proper erection,
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installation, operation and maintenance of the Leased Property or any
part thereof.
4.3 ENVIRONMENTAL MATTERS.
4.3.1 RESTRICTION ON USE, ETC. During the Term and any other
time that Tenant shall be in possession of any Property, Tenant shall
not, and shall not permit any Person to, store on, release or spill
upon, dispose of or transfer to or from such Property any Hazardous
Substance, except in compliance with all Applicable Laws. During the
Term and any other time that Tenant shall be in possession of any
Property, Tenant shall maintain (or shall cause to be maintained) such
Property at all times free of any Hazardous Substance (except in
compliance with all Applicable Laws). Tenant shall promptly (and shall
direct any Manager to promptly): (a) upon receipt of notice or
knowledge, notify Landlord in writing of any material change in the
nature or extent of Hazardous Substances at any Property, (b) transmit
to Landlord a copy of any report which is required to be filed by
Tenant or any Manager with respect to any Property pursuant to XXXX
Title III or any other Applicable Law, (c) transmit to Landlord copies
of any citations, orders, notices or other governmental communications
received by Tenant or any Manager or their respective agents or
representatives with respect to Hazardous Substances or violations or
alleged violations of Applicable Law (each an "ENVIRONMENTAL NOTICE"),
which Environmental Notice requires a written response or any action to
be taken and/or if such Environmental Notice gives notice of and/or
presents a material risk of any material violation of any Applicable
Law and/or presents a material risk of any material cost, expense, loss
or damage (an "ENVIRONMENTAL OBLIGATION"), (d) observe and comply with
(or cause to be observed and complied with) all Applicable Laws
relating to the use, storage, maintenance and disposal of Hazardous
Substances and all orders or directives from any official, court or
agency of competent jurisdiction relating to the use, storage or
maintenance, or requiring the removal, treatment, containment or other
disposition of Hazardous Substances, and (e) pay or otherwise dispose
(or cause to be paid or otherwise disposed) of any fine, charge or
Imposition related to Hazardous Substances or violations of Applicable
Law for which Tenant or any Person claiming by, through or under Tenant
and/or Landlord are legally liable, unless Tenant or any Manager shall
contest the same in good faith and by appropriate proceedings and the
right to use and the value of any of the Leased Property is not
materially and adversely affected thereby.
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If, at any time prior to the termination of this Agreement, Hazardous
Substances (other than those maintained in accordance with Applicable Laws) are
discovered on any Property, subject to Tenant's right to contest the same in
accordance with ARTICLE 8, Tenant shall take (and shall cause to be taken) all
actions and incur any and all expenses, as are required by any Government Agency
and by Applicable Law, (i) to clean up and remove from and about such Property
all Hazardous Substances thereon, (ii) to contain and prevent any further
discharge, release or threat of discharge or release of Hazardous Substances on
or about such Property and (iii) to use good faith efforts to eliminate any
further discharge, release or threat of discharge or release of Hazardous
Substances on or about such Property.
4.3.2 ENVIRONMENTAL REPORT. Tenant shall, at its sole cost and
expense, provide Landlord with an Environmental Report (as hereinafter defined),
prepared by an environmental consultant reasonably acceptable to Landlord and
dated within sixty (60) days of the expiration or sooner termination of this
Agreement concluding, subject to customary limitations and standards, that
Tenant shall have complied with all of its obligations under SECTION 4.3 of this
Agreement to date and that the Leased Property does not contain any Hazardous
Substances, other than in compliance with Applicable Laws, and which, at
Landlord's request, Tenant shall remove from the Leased Property on or before
the expiration or sooner termination hereof. An "Environmental Report" shall be
a so-called "Phase I" report or such other level of investigation which shall be
the standard of diligence in the purchase or lease of similar property at the
time, together with any additional investigation and report which would be
needed to make the conclusions required above or which would customarily follow
any discovery contained in any initial report(s), and for which the
investigation and testing on which the conclusions shall have been based shall
have been performed not earlier than thirty (30) days prior to the date of such
report.
4.3.3 SURVIVAL. The provisions of this SECTION 4.3 shall survive
the expiration or sooner termination of this Agreement.
4.4 GROUND LEASES. Tenant shall pay and perform all of Landlord's
obligations as tenant under the Ground Leases. If Landlord has the right, under
the provisions of any of the Ground Leases, to elect to renew or extend the term
of such Ground Leases or to purchase the ground leased property, Tenant shall so
notify Landlord at least one hundred eighty (180) days
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(but no more than one (1) year) prior to the expiration of the period within
which Landlord is obligated to notify the landlord under such Ground Leases of
its election to renew, extend or purchase, as the case may be. Such notice from
Tenant shall contain all of the relevant facts about the impending election to
renew, extend or purchase, including, as applicable, the length of the period of
renewal, the rental rate and/or the purchase price. In the event of the
expiration or termination of any Ground Lease, this Agreement shall terminate
with respect to such Property as of the date of such expiration or termination;
PROVIDED, HOWEVER, in such event, there shall be no reduction in the Minimum
Rent. Landlord shall provide Tenant copies of notices received by Landlord
from the lessor under any Ground Lease.
ARTICLE 5
MAINTENANCE AND REPAIRS
5.1 MAINTENANCE AND REPAIR.
5.1.1 TENANT'S GENERAL OBLIGATIONS.
(a) Tenant shall keep (or cause to be kept), at Tenant's sole
cost and expense, the Leased Property and all private roadways,
sidewalks and curbs appurtenant thereto (and Tenant's Personal
Property) in good order and repair, reasonable wear and tear excepted
(whether or not the need for such repairs occurs as a result of
Tenant's or any Manager's use, any prior use, the elements or the age
of the Leased Property or Tenant's Personal Property or any portion
thereof), and shall promptly make or cause to be made all necessary and
appropriate repairs and replacements thereto of every kind and nature,
whether interior or exterior, structural or nonstructural, ordinary or
extraordinary, foreseen or unforeseen or arising by reason of a
condition existing prior to the commencement of the Term (concealed or
otherwise). All repairs shall be made in a good, workmanlike manner,
consistent with industry standards for comparable Travel Centers in
like locales, in accordance with all applicable federal, state and
local statutes, ordinances, codes, rules and regulations relating to
any such work. Tenant shall not take or omit to take (or permit any
Person to take or omit to take) any action, the taking or omission of
which would materially and adversely impair the value or the usefulness
of the Leased Property or any material part thereof for its Permitted
Use. Tenant's use, occupancy and maintenance of the Leased Property
shall comply with all published requirements
33
imposed from time to time on a system-wide basis for TCA Travel
Centers. Tenant's obligations under this SECTION 5.1.1 shall be limited
in the event of any casualty or Condemnation as set forth in ARTICLE 10
and ARTICLE 11 and Tenant's obligations with respect to Hazardous
Substances are as set forth in SECTION 4.3.
(b) Tenant shall prepare and submit to Landlord for Landlord's
approval, on or before December 1 of each Lease Year during the Term
hereof and for the next following Lease Year, a detailed budget (the
"CAPITAL REPLACEMENTS BUDGET") for each Property, projecting all costs,
expenses and expenditures expected to be incurred at such Property
during the following Lease Year for Capital Additions. Each Capital
Replacements Budget shall be supplemented by such information as
Landlord shall reasonably request from time to time.
(c) ALLOWANCE. Provided that no Event of Default shall have
occurred and be continuing hereunder and Tenant shall otherwise comply
with the applicable provisions of ARTICLE 6, Landlord shall provide
Tenant with an allowance of up to One Hundred Twenty-Five Million
Dollars ($125,000,000) (the "ALLOWANCE") to pay for the cost of certain
improvements and additions to the Real Property as set forth on EXHIBIT
C, attached hereto and made a part hereof, or such other improvements
and additions as may be approved in the Capital Replacements Budget
from time to time, which improvements and additions are completed in
compliance with all applicable terms of this Agreement, on or before
December 31, 2015; PROVIDED, HOWEVER, Tenant may not draw more than $25
million of the Allowance per year during each of the first five Lease
Years of the Term. Tenant shall provide Landlord with appropriate
invoices and such other documentation and information as Landlord shall
reasonably request each time Tenant requests a disbursement of the
Allowance. There shall be no adjustment of Minimum Rent in connection
with any such disbursement of the Allowance to Tenant. At Landlord's
option, disbursements of the Allowance may be conditioned on Tenant
satisfying the applicable provisions of SECTION 10.2.4 for the
disbursement of insurance proceeds.
5.1.2 LANDLORD'S OBLIGATIONS.
(a) Except as otherwise expressly provided in this Agreement,
Landlord shall not, under any circumstances, be
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required to build or rebuild any improvement on the Real Property, or
to make any repairs, replacements, alterations, restorations or
renewals of any nature or description to the Leased Property, whether
ordinary or extraordinary, structural or nonstructural, foreseen or
unforeseen, or to make any expenditure whatsoever with respect thereto,
or to maintain the Leased Property in any way. Except as otherwise
expressly provided in this Agreement, Tenant hereby waives, to the
maximum extent permitted by law, the right to make repairs at the
expense of Landlord pursuant to any law in effect on the Commencement
Date or thereafter enacted. Landlord shall have the right to give,
record and post, as appropriate, notices of nonresponsibility under any
mechanic's lien laws now or hereafter existing.
(b) If, pursuant to the terms of this Agreement, Tenant is
required to make any Capital Expenditures, including, without
limitation, the Capital Expenditures identified in any Capital
Replacements Budget, Tenant may, at its election, advance such funds or
give Landlord Notice thereof, which Notice shall set forth, in
reasonable detail, the nature of the required Capital Expenditure, the
estimated cost thereof and such other information with respect thereto
as Landlord may reasonably require. Provided that no Event of Default
shall have occurred and be continuing and Tenant shall otherwise comply
with the applicable provisions of ARTICLE 6, Landlord shall, within ten
(10) Business Days after such Notice, subject to and in accordance with
the applicable provisions of ARTICLE 6, disburse such required funds to
Tenant (or, if Tenant shall so elect, directly to the Manager or any
other Person performing the required work) and, upon such disbursement,
the Minimum Rent shall be adjusted as provided in SECTION 3.1.1(b).
Notwithstanding the foregoing, Landlord may elect not to disburse such
required funds to Tenant; provided, however, that if Landlord shall
elect not to disburse such required funds as aforesaid, Tenant's
obligation to make such required Capital Expenditure shall be deemed
waived by Landlord, and, notwithstanding anything contained in this
Agreement to the contrary, Tenant shall have no obligation to make such
Capital Expenditure.
5.1.3 NONRESPONSIBILITY OF LANDLORD, ETC. All materialmen,
contractors, artisans, mechanics and laborers and other persons contracting with
Tenant with respect to the Leased Property, or any part thereof, are hereby
charged with notice
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that liens on the Leased Property or on Landlord's interest therein are
expressly prohibited and that they must look solely to Tenant to secure payment
for any work done or material furnished to Tenant or any Manager or for any
other purpose during the term of this Agreement.
Nothing contained in this Agreement shall be deemed or construed in
any way as constituting the consent or request of Landlord, express or implied,
by inference or otherwise, to any contractor, subcontractor, laborer or
materialmen for the performance of any labor or the furnishing of any materials
for any alteration, addition, improvement or repair to the Leased Property or
any part thereof or as giving Tenant any right, power or authority to contract
for or permit the rendering of any services or the furnishing of any materials
that would give rise to the filing of any lien against the Leased Property or
any part thereof nor to subject Landlord's estate in the Leased Property or any
part thereof to liability under any mechanic's lien law of any State in any way,
it being expressly understood Landlord's estate shall not be subject to any such
liability.
5.2 TENANT'S PERSONAL PROPERTY. Tenant shall provide and maintain (or
cause to be provided and maintained) throughout the Term all such Tenant's
Personal Property as shall be necessary in order to operate in compliance with
applicable material Legal Requirements and Insurance Requirements and otherwise
in accordance with customary practice in the industry for the Permitted Use. If,
from and after the Commencement Date, Tenant acquires an interest in any item of
tangible personal property (other than motor vehicles) on, or in connection
with, the Leased Property, or any portion thereof, which belongs to anyone other
than Tenant, Tenant shall require the agreements permitting such use to provide
that Landlord or its designee may assume Tenant's rights and obligations under
such agreement upon Landlord's purchase of the same in accordance with the
provisions of ARTICLE 15 and the assumption of management or operation of the
Travel Center by Landlord or its designee.
5.3 YIELD UP. Upon the expiration or sooner termination of this
Agreement, Tenant shall remove all of Tenant's Personal Property (other than
that purchased by Landlord pursuant to ARTICLE 15) and vacate and surrender the
Leased Property to Landlord (except that Tenant shall not surrender its rights
to use the trade names, trademarks, service marks, domain names, logos and other
brand-source indicia, including all goodwill related thereto, to the extent
necessary for it to comply with its obligations with respect to the Existing
Third Party Trade
36
Names and Service Xxxx Rights until the various dates on which the rights
thereto of such third parties expire, to the extent and as more particularly
described in SECTION 2.3) in substantially the same condition in which the
Leased Property was in on the Commencement Date, except as repaired, rebuilt,
restored, altered or added to as permitted or required by the provisions of
this Agreement, reasonable wear and tear excepted (and casualty damage and
Condemnation, in the event that this Agreement is terminated following a
casualty or Condemnation in accordance with ARTICLE 10 or ARTICLE 11,
excepted). Notwithstanding the foregoing, as to any Property which contains
Retained Buildings (other than those, if any, which are to be surrendered to
the Landlord under any Ground Lease) Tenant shall, at the expiration or
earlier termination of this Agreement (or in the case of any termination of
this Agreement pursuant to Section 4.1.1 with respect to a Property
containing such Retained Buildings), remove such Retained Buildings and
surrender the Property to Landlord without such Retained Buildings but
otherwise in the condition required above unless Landlord shall, prior to the
end of the Term, elect to purchase such Retained Buildings on any Property
for the Fair Market Value thereof as of the last day of the Term, such Fair
Market Value to be determined by agreement of the parties or, absent
agreement, by an appraiser designated by Landlord.
In addition, upon the expiration or earlier termination of this
Agreement, Tenant shall, at Landlord's sole cost and expense, use its good faith
efforts to transfer (or cause to be transferred) to Landlord or its nominee, and
cooperate with Landlord or Landlord's nominee in connection with the processing
of all applications for, licenses, operating permits and other governmental
authorizations and all contracts, including contracts with Government Agencies
and rights with third party franchisors which may be necessary for the use and
operation of the Travel Centers as then operated (all such licenses, permits,
authorizations and contracts being "OPERATING RIGHTS"). Tenant hereby appoints
Landlord as its attorney-in-fact, with full power of substitution, for the
purpose of carrying out the provisions of this paragraph and taking any action,
including, without limitation, executing, delivering and filing applications,
certificates, instruments and other documents and papers with Government
Agencies, and executing any instruments, assignments, conveyances, and other
transfers which are required to be taken or executed by Tenant, on its behalf
and in its name, which appointment is coupled with an interest, is irrevocable
and durable and shall survive the subsequent dissolution of Tenant.
If requested by Landlord, Tenant shall continue to manage one or more
of the Travel Centers after the expiration of the Term for up to one hundred
eighty (180) days, on such reasonable
37
terms (including receipt by Tenant of a market management fee), as Landlord
shall reasonably request.
5.4 MANAGEMENT AND FRANCHISE AGREEMENTS. Tenant shall not, without
Landlord's prior written consent (which consent shall not be unreasonably
withheld, delayed or conditioned with respect to Tenant's Affiliated Persons),
enter into, amend or modify the provisions of, or extend or renew (or allow to
be entered into, amended, modified, extended or renewed) any Management
Agreement or TA Franchise Agreement. Any agreements entered into pursuant to the
provisions of this SECTION 5.4 shall be subordinate to this Agreement and shall
provide, INTER ALIA, that all amounts due from Tenant thereunder shall be
subordinate to all amounts due from Tenant to Landlord (provided that, as long
as no Event of Default has occurred and is continuing, Tenant may pay all
amounts due from it thereunder) and for termination thereof, at Landlord's
option, upon the termination of this Agreement. Tenant shall not take any
action, grant any consent or permit any action or consent under, any Management
Agreement or TA Franchise Agreement which might have a material adverse effect
on Landlord, without the prior written consent of Landlord. Tenant shall
enforce, or cause to be enforced, all rights of the franchisor under the TA
Franchise Agreements. Upon the expiration or earlier termination of any TA
Franchise Agreement with respect to any Property, Tenant shall operate the
applicable Property in accordance with the applicable provisions of this
Agreement.
ARTICLE 6
IMPROVEMENTS, ETC.
6.1 IMPROVEMENTS TO THE LEASED PROPERTY. Tenant shall not make,
construct or install (or permit to be made, constructed or installed) any
Capital Additions without, in each instance, obtaining Landlord's prior written
consent, which consent shall not be unreasonably withheld, delayed or
conditioned provided that (a) construction or installation of the same would not
adversely affect or violate any material Legal Requirement or Insurance
Requirement applicable to any Property and (b) Landlord shall have received an
Officer's Certificate certifying as to the satisfaction of the conditions set
out in clause (a) above; PROVIDED, HOWEVER, that no such consent shall be
required in the event immediate action is required to prevent imminent harm to
person or property or with respect to any Capital Addition approved in the
applicable Capital Replacements Budget and having an aggregate cost not to
exceed $250,000. Prior to commencing construction of any Capital Addition,
Tenant shall submit to Landlord, in writing, a proposal setting forth, in
reasonable detail, any
38
such proposed improvement and shall provide to Landlord such plans and
specifications, and such permits, licenses, contracts and such other information
concerning the same as Landlord may reasonably request. Landlord shall have
thirty (30) days to review all materials submitted to Landlord in connection
with any such proposal. Failure of Landlord to respond to Tenant's proposal
within thirty (30) days after receipt of all information and materials requested
by Landlord in connection with the proposed improvement shall be deemed to
constitute approval of the same. Without limiting the generality of the
foregoing, such proposal shall indicate the approximate projected cost of
constructing such proposed improvement and the use or uses to which it will be
put. No Capital Addition shall be made which would tie in or connect any Leased
Improvements with any other improvements on property adjacent to any Property
(and not part of the Land) including, without limitation, tie-ins of buildings
or other structures or utilities. Except as permitted herein, Tenant shall not
finance the cost of any construction of such improvement by the granting of a
lien on or security interest in the Leased Property or such improvement, or
Tenant's interest therein, without the prior written consent of Landlord, which
consent may be withheld by Landlord in Landlord's sole discretion. Any such
improvements shall, upon the expiration or sooner termination of this Agreement,
remain or pass to and become the property of Landlord, free and clear of all
encumbrances other than Permitted Encumbrances, except as provided in Section
5.3 with respect to Retained Buildings.
6.2 SALVAGE. All materials which are scrapped or removed in connection
with the making of either Capital Additions or non-Capital Additions or repairs
required by ARTICLE 5 shall be or become the property of the party that paid for
such work.
ARTICLE 7
LIENS
Subject to ARTICLE 8, Tenant shall use its best efforts not, directly
or indirectly, to create or allow to remain and shall promptly discharge (or
cause to be discharged), at its expense, any lien, encumbrance, attachment,
title retention agreement or claim upon the Leased Property, or any portion
thereof, or Tenant's leasehold interest therein or any attachment, levy, claim
or encumbrance in respect of the Rent, other than (a) Permitted Encumbrances,
(b) restrictions, liens and other encumbrances which are consented to in writing
by Landlord, (c) liens for those taxes of Landlord which Tenant is
39
not required to pay hereunder, (d) subleases permitted by ARTICLE 16, (e) liens
for Impositions or for sums resulting from noncompliance with Legal Requirements
so long as (i) the same are not yet due and payable, or (ii) are being contested
in accordance with ARTICLE 8, (f) liens of mechanics, laborers, materialmen,
suppliers or vendors incurred in the ordinary course of business that are not
yet due and payable or are for sums that are being contested in accordance with
ARTICLE 8, (g) any Property Mortgages or other liens which are the
responsibility of Landlord pursuant to the provisions of ARTICLE 20 and (h)
Landlord Liens and any other voluntary liens created by Landlord.
ARTICLE 8
PERMITTED CONTESTS
Tenant shall have the right to contest the amount or validity of any
Imposition, Legal Requirement, Insurance Requirement, Environmental Obligation,
lien, attachment, levy, encumbrance, charge or claim (collectively, "CLAIMS") as
to the Leased Property, by appropriate legal proceedings, conducted in good
faith and with due diligence, provided that (a) the foregoing shall in no way be
construed as relieving, modifying or extending Tenant's obligation to pay (or
cause to be paid) any Claims as finally determined, (b) such contest shall not
cause Landlord or Tenant to be in default under any ground lease, mortgage or
deed of trust encumbering the Leased Property, or any portion thereof (Landlord
agreeing that any such ground lease, mortgage or deed of trust shall permit
Tenant to exercise the rights granted pursuant to this ARTICLE 8) or any
interest therein or result in or reasonably be expected to result in a lien
attaching to the Leased Property, or any portion thereof, (c) no part of the
Leased Property nor any Rent therefrom shall be in any immediate danger of sale,
forfeiture, attachment or loss, and (d) Tenant shall indemnify and hold harmless
Landlord from and against any cost, claim, damage, penalty or reasonable
expense, including reasonable attorneys' fees, incurred by Landlord in
connection therewith or as a result thereof. Landlord agrees to join in any such
proceedings if required legally to prosecute such contest, provided that
Landlord shall not thereby be subjected to any liability therefor (including,
without limitation, for the payment of any costs or expenses in connection
therewith) unless Tenant agrees by agreement in form and substance reasonably
satisfactory to Landlord, to assume and indemnify Landlord with respect to the
same. Tenant shall be entitled to any refund of any Claims and
40
such charges and penalties or interest thereon which have been paid by Tenant or
paid by Landlord to the extent that Landlord has been fully reimbursed by
Tenant. If Tenant shall fail (x) to pay or cause to be paid any Claims when
finally determined, (y) to provide reasonable security therefor or (z) to
prosecute or cause to be prosecuted any such contest diligently and in good
faith, Landlord may, upon reasonable notice to Tenant (which notice shall not be
required if Landlord shall reasonably determine that the same is not
practicable), pay such charges, together with interest and penalties due with
respect thereto, and Tenant shall reimburse Landlord therefor, upon demand, as
Additional Charges.
ARTICLE 9
INSURANCE AND INDEMNIFICATION
9.1 GENERAL INSURANCE REQUIREMENTS. Tenant shall, at all times during
the Term and at any other time Tenant shall be in possession of any Property, or
any portion thereof, keep (or cause to be kept) such Property and all property
located therein or thereon, insured against the risks and in such amounts as
Landlord shall reasonably require and may be commercially reasonable. Tenant
shall prepare a proposal setting forth the insurance Tenant proposes to be
maintained with respect to each Property during the ensuing Lease Year, and
shall submit such proposal to Landlord on or before December 1st of the
preceding Lease Year, for Landlord's review and approval, which approval shall
not be unreasonably withheld, delayed or conditioned. In the event that Landlord
shall fail to respond within thirty (30) days after receipt of such proposal,
such proposal shall be deemed approved.
9.2 WAIVER OF SUBROGATION. Landlord and Tenant agree that (insofar as
and to the extent that such agreement may be effective without invalidating or
making it impossible to secure insurance coverage from responsible insurance
companies doing business in any State) with respect to any property loss which
is covered by insurance then being carried by Landlord or Tenant, the party
carrying such insurance and suffering said loss releases the others of and from
any and all claims with respect to such loss; and they further agree that their
respective insurance companies (and, if Landlord or Tenant shall self insure in
accordance with the terms hereof, Landlord or Tenant, as the case may be) shall
have no right of subrogation against the other on account thereof, even though
extra premium may result therefrom. In the event that any extra premium is
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payable by Tenant as a result of this provision, Landlord shall not be liable
for reimbursement to Tenant for such extra premium.
9.3 FORM SATISFACTORY, ETC. All insurance policies and endorsements
required pursuant to this ARTICLE 9 shall be fully paid for, nonassessable, and
issued by reputable insurance companies authorized to do business in the State
and having a general policy holder's rating of no less than A in Best's latest
rating guide. All property, business interruption, liability and flood insurance
policies with respect to each Property shall include no deductible in excess of
Five Hundred Thousand Dollars ($500,000). At all times, all property,
business interruption, liability and flood insurance policies, with the
exception of worker's compensation insurance coverage, shall name Landlord and
any Property Mortgagee as additional insureds, as their interests may appear.
All loss adjustments shall be payable as provided in ARTICLE 10, except that
losses under liability and worker's compensation insurance policies shall be
payable directly to the party entitled thereto. Tenant shall cause all insurance
premiums to be paid and shall deliver (or cause to be delivered) policies or
certificates thereof to Landlord prior to their effective date (and, with
respect to any renewal policy, prior to the expiration of the existing policy).
All such policies shall provide Landlord (and any Property Mortgagee if required
by the same) thirty (30) days prior written notice of any material change or
cancellation of such policy. In the event Tenant shall fail to effect (or cause
to be effected) such insurance as herein required, to pay (or cause to be paid)
the premiums therefor or to deliver (or cause to be delivered) such policies or
certificates to Landlord or any Property Mortgagee at the times required,
Landlord shall have the right, upon Notice to Tenant, but not the obligation, to
acquire such insurance and pay the premiums therefor, which amounts shall be
payable to Landlord, upon demand, as Additional Charges, together with interest
accrued thereon at the Overdue Rate from the date such payment is made until
(but excluding) the date repaid.
9.4 NO SEPARATE INSURANCE; SELF-INSURANCE. Tenant shall not take (or
permit any Person to take) out separate insurance, concurrent in form or
contributing in the event of loss with that required by this ARTICLE 9, or
increase the amount of any existing insurance by securing an additional policy
or additional policies, unless all parties having an insurable interest in the
subject matter of such insurance, including Landlord and all Property
Mortgagees, are included therein as
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additional insureds and the loss is payable under such insurance in the same
manner as losses are payable under this Agreement. In the event Tenant shall
take out any such separate insurance or increase any of the amounts of the then
existing insurance, Tenant shall give Landlord prompt Notice thereof. Tenant
shall not self-insure (or permit any Person to self-insure).
9.5 INDEMNIFICATION OF LANDLORD. Notwithstanding the existence of any
insurance provided for herein and without regard to the policy limits of any
such insurance, Tenant shall protect, indemnify and hold harmless Landlord for,
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and reasonable expenses (including, without limitation,
reasonable attorneys' fees), to the maximum extent permitted by law, imposed
upon or incurred by or asserted against Landlord by reason of the following,
except to the extent caused by Landlord's gross negligence or willful
misconduct: (a) any accident or injury to, or death of, persons or loss of or
damage to property occurring on or about any Property or portion thereof or
adjoining sidewalks or rights of way during the Term, (b) any past, present or
future condition or use, misuse, non-use, management, maintenance or repair by
Tenant, any Manager or anyone claiming under any of them of any Property,
Tenant's Personal Property or Transferred Trademarks, or any litigation,
proceeding or claim by governmental entities (other than Condemnation
proceedings) or other third parties relating to any Property or portion thereof
or Tenant's Personal Property or such use, misuse, non-use, condition,
management, maintenance, or repair thereof, including failure to perform
obligations under this Agreement, to which Landlord is made a party during the
Term (limited, in the case of Environmental Obligations, to those provided in
SECTION 4.3.1), (c) any Impositions that are the obligations of Tenant to pay
pursuant to the applicable provisions of this Agreement, and (d) any failure on
the part of Tenant or anyone claiming under Tenant to perform or comply with any
of the terms of this Agreement. Tenant, at its expense, shall contest, resist
and defend any such claim, action or proceeding asserted or instituted against
Landlord (and shall not be responsible for any duplicative attorneys' fees
incurred by Landlord) or may compromise or otherwise dispose of the same, with
Landlord's prior written consent (which consent may not be unreasonably
withheld, delayed or conditioned). The obligations of Tenant under this SECTION
9.5 shall survive the termination of this Agreement.
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ARTICLE 10
CASUALTY
10.1 INSURANCE PROCEEDS. Except as provided in the last clause of this
sentence, all proceeds payable by reason of any loss or damage to any Property,
or any portion thereof, and insured under any policy of insurance required by
ARTICLE 9 (other than the proceeds of any business interruption insurance or
insurance proceeds for Tenant's Personal Property or the Retained Buildings)
shall be paid directly to Landlord (subject to the provisions of SECTION 10.2)
and all loss adjustments with respect to losses payable to Landlord shall
require the prior written consent of Landlord, which consent shall not be
unreasonably withheld, delayed or conditioned; PROVIDED, HOWEVER, that, so long
as no Event of Default shall have occurred and be continuing, all such proceeds
less than or equal to Two Hundred Fifty Thousand Dollars ($250,000) shall be
paid directly to Tenant and such losses may be adjusted without Landlord's
consent. If Tenant is required to reconstruct or repair any Property as provided
herein, such proceeds shall be paid out by Landlord from time to time for the
reasonable costs of reconstruction or repair of such Property necessitated by
such damage or destruction, subject to and in accordance with the provisions of
SECTION 10.2.4. Any excess proceeds of insurance remaining after the completion
of the restoration shall be paid to Tenant. In the event that the provisions of
SECTION 10.2.1 are applicable, the insurance proceeds shall be retained by the
party entitled thereto pursuant to SECTION 10.2.1. Insurance proceeds received
by Tenant as result of any damage to Retained Buildings shall be applied by
Tenant to reconstruct or repair the Retained Buildings subject to and in
accordance with, and as if received by Tenant from Landlord under, the
provisions of Section 10.2.4
10.2 DAMAGE OR DESTRUCTION.
10.2.1 DAMAGE OR DESTRUCTION OF LEASED PROPERTY. If, during the
Term, any Property shall be totally or partially destroyed and the Travel Center
located thereon is thereby rendered Unsuitable for Its Permitted Use, either
Landlord or Tenant may, by the giving of Notice thereof to the other, terminate
this Agreement with respect to such affected Property, whereupon, this Agreement
shall terminate with respect to such affected Property, Landlord shall be
entitled to retain the insurance proceeds payable on account of such damage
(other than insurance proceeds attributable to the Retained Buildings), Tenant
shall pay to Landlord the amount of any deductible under the insurance policies
covering such Travel Center (excluding
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any deductible attributable to a loss relating to any Retained Buildings), the
amount of any uninsured loss and any difference between the replacement cost of
the affected Property (exclusive of any Retained Buildings) and the casualty
insurance proceeds therefor, and the Minimum Rent shall be reduced by, at
Landlord's option, (x) eight and one-half percent (8.5%) of the total amount
received by Landlord or (y) the Fair Market Value Rent of the applicable
Property on the Commencement Date, such Fair Market Value Rent to be determined
by agreement of the parties or, absent agreement, an appraiser designated by
Landlord.
10.2.2 PARTIAL DAMAGE OR DESTRUCTION. If, during the Term, any
Property shall be totally or partially destroyed but the Travel Center located
thereon is not rendered Unsuitable for Its Permitted Use, Tenant shall, subject
to SECTION 10.2.3, promptly restore such Travel Center as provided in SECTION
10.2.4.
10.2.3 INSUFFICIENT INSURANCE PROCEEDS. If the cost of the repair
or restoration of the applicable Travel Center exceeds the amount of insurance
proceeds received by Landlord and Tenant pursuant to SECTION 9.1, Tenant shall
give Landlord Notice thereof which notice shall set forth in reasonable detail
the nature of such deficiency and whether Tenant shall pay and assume the amount
of such deficiency (Tenant having no obligation to do so, except that, if Tenant
shall elect to make such funds available, the same shall become an irrevocable
obligation of Tenant pursuant to this Agreement). In the event Tenant shall
elect not to pay and assume the amount of such deficiency, Landlord shall have
the right (but not the obligation), exercisable in Landlord's sole discretion by
Notice to Tenant, given within sixty (60) days after Tenant's notice of the
deficiency, to elect to make available for application to the cost of repair or
restoration the amount of such deficiency; PROVIDED, HOWEVER, in such event,
upon any disbursement by Landlord thereof, the Minimum Rent shall be adjusted as
provided in SECTION 3.1.1(b). In the event that neither Landlord nor Tenant
shall elect to make such deficiency available for restoration, either Landlord
or Tenant may terminate this Agreement with respect to the affected Property by
Notice to the other, whereupon, this Agreement shall so terminate and insurance
proceeds shall be distributed as provided in SECTION 10.2.1. It is expressly
understood and agreed, however, that, notwithstanding anything in this Agreement
to the contrary, Tenant shall be strictly liable and solely responsible for the
amount of any deductible and shall, upon any insurable loss, pay
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over the amount of such deductible (excluding any deductible attributable to a
loss relating to any Retained Building) to Landlord at the time and in the
manner herein provided for payment of the applicable proceeds to Landlord.
10.2.4 DISBURSEMENT OF PROCEEDS. In the event Tenant is required
to restore any Property pursuant to SECTION 10.2 and this Agreement is not
terminated as to such Property pursuant to this ARTICLE 10, Tenant shall
commence (or cause to be commenced) promptly and continue diligently to perform
(or cause to be performed) the repair and restoration of such Property
(hereinafter called the "WORK"), so as to restore (or cause to be restored) the
applicable Property in material compliance with all Legal Requirements and so
that such Property shall be, to the extent practicable, substantially equivalent
in value and general utility to its general utility and value immediately prior
to such damage or destruction. Subject to the terms hereof, Landlord shall
advance the insurance proceeds and any additional amounts payable by Landlord
pursuant to SECTION 10.2.3 or otherwise deposited with Landlord to Tenant
regularly during the repair and restoration period so as to permit payment for
the cost of any such restoration and repair. Any such advances shall be made not
more often than monthly within ten (10) Business Days after Tenant submits to
Landlord a written requisition and substantiation therefor on AIA Forms G702 and
G703 (or on such other form or forms as may be reasonably acceptable to
Landlord). Landlord may, at its option, condition advancement of such insurance
proceeds and other amounts on (i) its approval of plans and specifications of an
architect satisfactory to Landlord (which approval shall not be unreasonably
withheld, delayed or conditioned), (ii) general contractors' estimates, (iii)
architect's certificates, (iv) conditional lien waivers of general contractors,
if available, (v) evidence of approval by all governmental authorities and other
regulatory bodies whose approval is required, (vi) if Tenant has elected to
advance deficiency funds pursuant to SECTION 10.2.3, Tenant depositing the
amount thereof with Landlord and (vii) such other certificates as Landlord may,
from time to time, reasonably require.
Landlord's obligation to disburse insurance proceeds under this ARTICLE
10 shall be subject to the release of such proceeds by any Property Mortgagee to
Landlord.
Tenant's obligation to restore the applicable Property pursuant to this
ARTICLE 10 shall be subject to the release of available insurance proceeds by
the applicable Property
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Mortgagee to Landlord or directly to Tenant and, in the event such proceeds are
insufficient, Landlord electing to make such deficiency available therefor (and
disbursement of such deficiency).
10.3 DAMAGE NEAR END OF TERM. Notwithstanding any provisions of SECTION
10.1 OR 10.2 to the contrary, if damage to or destruction of any Property occurs
during the last twelve (12) months of the Term and if such damage or destruction
cannot reasonably be expected to be fully repaired and restored prior to the
date that is six (6) months prior to the end of the Term, the provisions of
SECTION 10.2.1 shall apply as if such Property had been totally or partially
destroyed and the Travel Center thereon rendered Unsuitable for Its Permitted
Use.
10.4 TENANT'S PERSONAL PROPERTY. All insurance proceeds payable by
reason of any loss of or damage to any of Tenant's Personal Property shall be
paid to Tenant and, to the extent necessary to repair or replace Tenant's
Personal Property in accordance with SECTION 10.5, Tenant shall hold such
proceeds in trust to pay the cost of repairing or replacing damaged Tenant's
Personal Property.
10.5 RESTORATION OF TENANT'S PERSONAL PROPERTY. If Tenant is required
to restore any Property as hereinabove provided, Tenant shall either (a) restore
all alterations and improvements made by Tenant and Tenant's Personal Property,
or (b) replace such alterations and improvements and Tenant's Personal Property
with improvements or items of the same or better quality and utility in the
operation of such Property.
10.6 NO ABATEMENT OF RENT. This Agreement shall remain in full force
and effect and Tenant's obligation to make all payments of Rent and to pay all
other charges as and when required under this Agreement shall remain unabated
during the Term notwithstanding any damage involving the Leased Property, or any
portion thereof (provided that Landlord shall credit against such payments any
amounts paid to Landlord as a consequence of such damage under any business
interruption insurance obtained by Tenant hereunder). The provisions of this
ARTICLE 10 shall be considered an express agreement governing any cause of
damage or destruction to the Leased Property, or any portion thereof, and, to
the maximum extent permitted by law, no local or State statute, laws, rules,
regulation or ordinance in effect during the Term which provide for such a
contingency shall have any application in such case.
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10.7 WAIVER. Tenant hereby waives any statutory rights of termination
which may arise by reason of any damage or destruction of the Leased Property,
or any portion thereof.
ARTICLE 11
CONDEMNATION
11.1 TOTAL CONDEMNATION, ETC. If either (i) the whole of any Property
shall be taken by Condemnation or (ii) a Condemnation of less than the whole of
any Property renders any Property Unsuitable for Its Permitted Use, this
Agreement shall terminate with respect to such Property, and Tenant and Landlord
shall seek the Award for their interests in the applicable Property as provided
in SECTION 11.5. Upon payment to Landlord of any such Award, the Minimum Rent
shall be reduced by, at Landlord's option, (x) eight and one-half percent (8.5%)
of the amount of such Award received by Landlord, or (y) the Fair Market Value
Rent of the applicable Property on the Commencement Date, such Fair Market Value
Rent to be determined by agreement of the parties or, absent agreement, an
appraiser designated by Landlord.
11.2 PARTIAL CONDEMNATION. In the event of a Condemnation of less than
the whole of any Property such that such Property is still suitable for its
Permitted Use, Tenant shall, to the extent of the Award and any additional
amounts disbursed by Landlord as hereinafter provided, commence (or cause to be
commenced) promptly and continue diligently to restore (or cause to be restored)
the untaken portion of the applicable Leased Improvements so that such Leased
Improvements shall constitute a complete architectural unit of the same general
character and condition (as nearly as may be possible under the circumstances)
as such Leased Improvements existing immediately prior to such Condemnation, in
material compliance with all Legal Requirements, subject to the provisions of
this SECTION 11.2. If the cost of the repair or restoration of the affected
Property exceeds the amount of the Award, Tenant shall give Landlord Notice
thereof which notice shall set forth in reasonable detail the nature of such
deficiency and whether Tenant shall pay and assume the amount of such deficiency
(Tenant having no obligation to do so, except that if Tenant shall elect to make
such funds available, the same shall become an irrevocable obligation of Tenant
pursuant to this Agreement). In the event Tenant shall elect not to pay and
assume the amount of such deficiency, Landlord shall have the right (but not the
obligation), exercisable at Landlord's sole election by Notice
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to Tenant given within sixty (60) days after Tenant's Notice of the deficiency,
to elect to make available for application to the cost of repair or restoration
the amount of such deficiency; PROVIDED, HOWEVER, in such event, upon any
disbursement by Landlord thereof, the Minimum Rent shall be adjusted as provided
in SECTION 3.1.1(b). In the event that neither Landlord nor Tenant shall elect
to make such deficiency available for restoration, either Landlord or Tenant may
terminate this Agreement with respect to the affected Property and the entire
Award shall be allocated as set forth in SECTION 11.5.
Subject to the terms hereof, Landlord shall contribute to the cost of
restoration that part of the Award received by Landlord and necessary to
complete such repair or restoration, together with severance and other damages
awarded to Landlord for the taken Leased Improvements and any deficiency
Landlord has agreed to disburse, to Tenant regularly during the restoration
period so as to permit payment for the cost of such repair or restoration.
Landlord may, at its option, condition advancement of such portion of the Award
and other amounts on (a) its approval of plans and specifications of an
architect satisfactory to Landlord (which approval shall not be unreasonably
withheld, delayed or conditioned), (b) general contractors' estimates, (c)
architect's certificates, (d) conditional lien waivers of general contractors,
if available, (e) evidence of approval by all governmental authorities and other
regulatory bodies whose approval is required, (f) if Tenant has elected to
advance deficiency funds pursuant to the preceding paragraph, Tenant depositing
the amount thereof with Landlord and (g) such other certificates as Landlord
may, from time to time, reasonably require. Landlord's obligation under this
SECTION 11.2 to disburse the Award and such other amounts shall be subject to
(x) the collection thereof by Landlord and (y) the satisfaction of any
applicable requirements of any Property Mortgage, and the release of such Award
by the applicable Property Mortgagee. Tenant's obligation to restore the Leased
Property shall be subject to the release of any portion of the Award by the
applicable Property Mortgagee to Landlord.
11.3 ABATEMENT OF RENT. Other than as specifically provided in this
Agreement, this Agreement shall remain in full force and effect and Tenant's
obligation to make all payments of Rent and to pay all other charges as and when
required under this Agreement shall remain unabated during the Term
notwithstanding any Condemnation involving the Leased Property, or any portion
thereof. The provisions of this ARTICLE 11 shall
49
be considered an express agreement governing any Condemnation involving the
Leased Property and, to the maximum extent permitted by law, no local or State
statute, law, rule, regulation or ordinance in effect during the Term which
provides for such a contingency shall have any application in such case.
11.4 TEMPORARY CONDEMNATION. In the event of any temporary Condemnation
of any Property or Tenant's interest therein, this Agreement shall continue in
full force and effect and Tenant shall continue to pay (or cause to be paid), in
the manner and on the terms herein specified, the full amount of the Rent.
Tenant shall continue to perform and observe (or cause to be performed and
observed) all of the other terms and conditions of this Agreement on the part of
the Tenant to be performed and observed. The entire amount of any Award made for
such temporary Condemnation allocable to the Term, whether paid by way of
damages, rent or otherwise, shall be paid to Tenant. Tenant shall, promptly upon
the termination of any such period of temporary Condemnation, at its sole cost
and expense, restore the affected Property to the condition that existed
immediately prior to such Condemnation, in material compliance with all
applicable Legal Requirements, unless such period of temporary Condemnation
shall extend beyond the expiration of the Term, in which event Tenant shall not
be required to make such restoration.
11.5 ALLOCATION OF AWARD. Except as provided in SECTION 11.4 and the
second sentence of this SECTION 11.5, the total Award shall be solely the
property of and payable to Landlord. Any portion of the Award made for the
taking of Tenant's leasehold interest in the Leased Property, loss of business
during the remainder of the Term, the taking of Retained Buildings, the taking
of Tenant's Personal Property, the taking of Capital Additions paid for by
Tenant and Tenant's removal and relocation expenses shall be the sole property
of and payable to Tenant. In any Condemnation proceedings, Landlord and Tenant
shall each seek its own Award in conformity herewith, at its own expense.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall constitute an "EVENT OF DEFAULT" hereunder:
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(a) should Tenant fail to make any payment of the Rent or any other sum
payable hereunder when due; or
(b) should Tenant default in the due observance or performance of any
of the terms, covenants or agreements contained herein to be performed or
observed by it (other than as specified in clause (a) above) and should such
default continue for a period of thirty (30) days after Notice thereof from
Landlord to Tenant; PROVIDED, HOWEVER, that if such default is susceptible of
cure but such cure cannot be accomplished with due diligence within such period
of time and if, in addition, Tenant commences to cure or cause to be cured such
default within thirty (30) days after Notice thereof from Landlord and
thereafter prosecutes the curing of such default with all due diligence, such
period of time shall be extended to such period of time (not to exceed an
additional ninety (90) days in the aggregate) as may be necessary to cure such
default with all due diligence; or
(c) should any obligation of Tenant or any Guarantor in respect of any
Indebtedness of Ten Million Dollars ($10,000,000) or more for money borrowed or
for any material property or services, or any guaranty relating thereto, be
declared to be or become due and payable prior to the stated maturity thereof,
or should there occur and be continuing with respect to any such Indebtedness
any event of default under any instrument or agreement evidencing or securing
the same, the effect of which is to permit the holder or holders of such
instrument or agreement or a trustee, agent or other representative on behalf of
such holder or holders, to cause any such obligations to become due prior to its
stated maturity; or
(d) should an event of default occur and be continuing beyond the
expiration of any applicable cure period under any Guaranty; or
(e) should Tenant or any Guarantor generally not be paying its debts as
they become due or should Tenant or any Guarantor make a general assignment for
the benefit of creditors; or
(f) should any petition be filed by or against Tenant or any Guarantor
under the Federal bankruptcy laws, or should any other proceeding be instituted
by or against Tenant or any Guarantor seeking to adjudicate Tenant or any
Guarantor a bankrupt or insolvent, or seeking liquidation, reorganization,
arrangement, adjustment or composition of Tenant's or any Guarantor's debts
under any law relating to bankruptcy,
51
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for Tenant or any Guarantor or for any substantial part of the
property of Tenant or any Guarantor and such proceeding is not dismissed within
one hundred eighty (180) days after institution thereof; or
(g) should Tenant or any Guarantor cause or institute any proceeding
for its dissolution or termination; or
(h) should the estate or interest of Tenant in the Leased Property or
any part thereof be levied upon or attached in any proceeding and the same shall
not be vacated or discharged within the later of (x) ninety (90) days after
commencement thereof, unless the amount in dispute is less than $250,000, in
which case Tenant shall give Notice to Landlord of the dispute but Tenant may
defend in any suitable way, and (y) two hundred seventy (270) days after receipt
by Tenant of Notice thereof from Landlord (unless Tenant shall be contesting
such lien or attachment in good faith in accordance with ARTICLE 8); or
(i) should there occur any direct or indirect Change in Control of
Tenant or any Guarantor, except as otherwise permitted by ARTICLE 16;
then, and in any such event, Landlord, in addition to all other remedies
available to it, may terminate this Agreement with respect to any or all of the
Leased Property (except with respect to any Existing Third Party Trade Names and
Service Xxxx Rights to the extent and as more particularly described in SECTION
2.3) by giving Notice thereof to Tenant and upon the expiration of the time, if
any, fixed in such Notice, this Agreement shall terminate with respect to all or
the designated portion of the Leased Property and all rights of Tenant under
this Agreement with respect thereto shall cease. Landlord shall have and may
exercise all rights and remedies available at law and in equity to Landlord as a
result of Tenant's breach of this Agreement.
Upon the termination of this Agreement in connection with any Event of
Default, Landlord may, in addition to any other remedies provided herein
(including the rights set forth in SECTION 5.3), enter upon the Real Property,
or any portion thereof and take possession thereof, without liability for
trespass or conversion (Tenant hereby waiving any right to
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notice or hearing prior to such taking of possession by Landlord).
12.2 REMEDIES. None of (a) the termination of this Agreement pursuant
to SECTION 12.1, (b) the repossession of the Leased Property, or any portion
thereof, (c) the failure of Landlord to relet the Leased Property, or any
portion thereof, nor (d) the reletting of all or any of portion of the Leased
Property, shall relieve Tenant of its liability and obligations hereunder, all
of which shall survive any such termination, repossession or reletting. In the
event of any such termination, Tenant shall forthwith pay to Landlord all Rent
due and payable with respect to the Leased Property, or terminated portion
thereof, through and including the date of such termination. Thereafter, Tenant,
until the end of what would have been the Term of this Agreement in the absence
of such termination, and whether or not the Leased Property, or any portion
thereof, shall have been relet, shall be liable to Landlord for, and shall pay
to Landlord, as current damages, the Rent (Additional Rent to be reasonably
calculated by Landlord) and other charges which would be payable hereunder for
the remainder of the Term had such termination not occurred, less the net
proceeds, if any, of any reletting of the Leased Property, or any portion
thereof, after deducting all reasonable expenses in connection with such
reletting, including, without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, advertising, expenses of
employees, alteration costs and expenses of preparation for such reletting.
Tenant shall pay such current damages to Landlord monthly on the days on which
the Minimum Rent would have been payable hereunder if this Agreement had not
been so terminated with respect to such of the Leased Property.
At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages beyond the date
of such termination, at Landlord's election, Tenant shall pay to Landlord an
amount equal to the present value (as reasonably determined by Landlord using a
discount rate equal to five percent (5%) per annum) of the excess, if any, of
the Rent and other charges which would be payable hereunder from the date of
such termination (assuming that, for the purposes of this paragraph, annual
payments by Tenant on account of Impositions and Additional Rent would be the
same as payments required for the immediately preceding twelve calendar months,
or if less than twelve calendar months have expired since the Commencement Date,
the payments required for such lesser period projected to an annual amount) for
what
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would be the then unexpired term of this Agreement if the same remained in
effect, over the fair market rental for the same period. Nothing contained in
this Agreement shall, however, limit or prejudice the right of Landlord to prove
and obtain in proceedings for bankruptcy or insolvency an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater than, equal to, or less than the amount of the loss or
damages referred to above.
In case of any Event of Default, re-entry, expiration and dispossession
by summary proceedings or otherwise, Landlord may, (a) relet the Leased Property
or any part or parts thereof, either in the name of Landlord or otherwise, for a
term or terms which may at Landlord's option, be equal to, less than or exceed
the period which would otherwise have constituted the balance of the Term and
may grant concessions or free rent to the extent that Landlord considers
advisable and necessary to relet the same, and (b) may make such reasonable
alterations, repairs and decorations in the Leased Property, or any portion
thereof, as Landlord, in its sole and absolute discretion, considers advisable
and necessary for the purpose of reletting the Leased Property; and the making
of such alterations, repairs and decorations shall not operate or be construed
to release Tenant from liability hereunder as aforesaid. Landlord shall in no
event be liable in any way whatsoever for any failure to relet all or any
portion of the Leased Property, or, in the event that the Leased Property is
relet, for failure to collect the rent under such reletting. To the maximum
extent permitted by law, Tenant hereby expressly waives any and all rights of
redemption granted under any present or future laws in the event of Tenant being
evicted or dispossessed, or in the event of Landlord obtaining possession of the
Leased Property, by reason of the occurrence and continuation of an Event of
Default hereunder.
Notwithstanding anything to the contrary set forth in this Agreement,
if an Event of Default shall be triggered solely with respect to any of SECTIONS
3.1.2(c), 3.1.2(d), 5.4, 9.5(d), 12.1(c), 12.1(d), 12.1(i), 17.2(a), 17.2(b),
21.1, 21.3, 21.4 OR 21.9 (and not with respect to any other Section of this
Agreement), in no event shall the damages recovered by Landlord pursuant to this
Agreement exceed an amount equal to the sum of (i) present value (as reasonably
determined by Landlord using a discount rate equal to ten and sixty-one
hundredths percent (10.61%) per annum) of the Minimum Rent which would be
payable hereunder from the date of such termination for what would be
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the then unexpired Term of this Agreement if the same remained in effect; and
(ii) all amounts due and unpaid under this Agreement as of the date of the
occurrence of the Event of Default.
12.3 TENANT'S WAIVER. IF THIS AGREEMENT IS TERMINATED PURSUANT TO
SECTION 12.1 OR 12.2, TENANT WAIVES, TO THE EXTENT PERMITTED BY LAW, ANY RIGHT
TO A TRIAL BY JURY IN THE EVENT OF SUMMARY PROCEEDINGS TO ENFORCE THE REMEDIES
SET FORTH IN THIS ARTICLE 12, AND THE BENEFIT OF ANY LAWS NOW OR HEREAFTER IN
FORCE EXEMPTING PROPERTY FROM LIABILITY FOR RENT OR FOR DEBT.
12.4 APPLICATION OF FUNDS. Any payments received by Landlord under any
of the provisions of this Agreement during the existence or continuance of any
Event of Default (and any payment made to Landlord rather than Tenant due to the
existence of any Event of Default) shall be applied to Tenant's current and past
due obligations under this Agreement in such order as Landlord may determine or
as may be prescribed by the laws of the State. Any balance shall be paid to
Tenant.
12.5 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. If an Event of Default
shall have occurred and be continuing, Landlord, after Notice to Tenant (which
Notice shall not be required if Landlord shall reasonably determine immediate
action is necessary to protect person or property), without waiving or releasing
any obligation of Tenant and without waiving or releasing any Event of Default,
may (but shall not be obligated to), at any time thereafter, make such payment
or perform such act for the account and at the expense of Tenant, and may, to
the maximum extent permitted by law, enter upon the Real Property, or any
portion thereof, for such purpose and take all such action thereon as, in
Landlord's sole and absolute discretion, may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of Tenant. All reasonable
costs and expenses (including, without limitation, reasonable attorneys' fees)
incurred by Landlord in connection therewith, together with interest thereon (to
the extent permitted by law) at the Overdue Rate from the date such sums are
paid by Landlord until repaid, shall be paid by Tenant to Landlord, on demand.
ARTICLE 13
HOLDING OVER
Any holding over by Tenant after the expiration or sooner termination
of this Agreement shall be treated as a daily
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tenancy at sufferance at a rate equal to two (2) times the Minimum Rent and
other charges herein provided (prorated on a daily basis). Tenant shall also pay
to Landlord all damages (direct or indirect) sustained by reason of any such
holding over. Otherwise, such holding over shall be on the terms and conditions
set forth in this Agreement, to the extent applicable. Nothing contained herein
shall constitute the consent, express or implied, of Landlord to the holding
over of Tenant after the expiration or earlier termination of this Agreement.
ARTICLE 14
LANDLORD DEFAULT
If Landlord shall default in the performance or observance of any of
its covenants or obligations set forth in this Agreement or any obligation of
Landlord, if any, under any agreement affecting the Leased Property, the
performance of which is not Tenant's obligation pursuant to this Agreement, and
any such default shall continue for a period of thirty (30) days after Notice
thereof from Tenant to Landlord and any applicable Property Mortgagee, or such
additional period as may be reasonably required to correct the same, Tenant may
declare the occurrence of a "LANDLORD DEFAULT" by a second Notice to Landlord
and to such Property Mortgagee. Thereafter, Tenant may forthwith cure the same
and, subject to the provisions of the following paragraph, invoice Landlord for
costs and expenses (including reasonable attorneys' fees and court costs)
incurred by Tenant in curing the same, together with interest thereon (to the
extent permitted by law) from the date Landlord receives Tenant's invoice until
paid, at the Overdue Rate. Tenant shall have no right to terminate this
Agreement for any default by Landlord hereunder and no right, for any such
default, to offset or counterclaim against any Rent or other charges due
hereunder.
If Landlord shall in good faith dispute the occurrence of any Landlord
Default and Landlord, before the expiration of the applicable cure period, shall
give Notice thereof to Tenant, setting forth, in reasonable detail, the basis
therefor, no Landlord Default shall be deemed to have occurred and Landlord
shall have no obligation with respect thereto until final adverse determination
thereof. If Tenant and Landlord shall fail, in good faith, to resolve any such
dispute within ten (10) days after Landlord's Notice of dispute, either may
submit the matter for resolution in accordance with ARTICLE 22.
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ARTICLE 15
PURCHASE OF TENANT'S PERSONAL PROPERTY
Landlord shall have the option to purchase Tenant's Personal Property
and any other property of any of Tenant's subtenants which are Affiliated
Persons of Tenant and which is used in connection with the operation of any
Travel Center, at the expiration or sooner termination of this Agreement, for an
amount equal to the then fair market value thereof (current replacement cost as
determined by agreement of the parties or, in the absence of such agreement,
appraisal), subject to, and with appropriate price adjustments for, all
liabilities assumed such as equipment leases, conditional sale contracts and
other encumbrances securing such liabilities to which such Personal Property or
property of such subtenant is subject. In addition, upon the expiration or
sooner termination of this Agreement, Landlord shall have the right (i) to
require Tenant or any Affiliated Person of Tenant to grant a perpetual license
to Landlord or its nominee all software programs and similar intellectual
property owned or licensed by Tenant or any such Affiliated Person used at the
Travel Centers for an amount equal to the then fair market value thereof
(current replacement cost as determined by agreement of the parties or, in the
absence of such agreement, appraisal), subject to, and with appropriate price
adjustments for, all liabilities assumed, and (ii) to offer employment to any
and all employees of Tenant and any Affiliated Person of Tenant employed at the
Travel Centers. Tenant shall cause each Affiliated Person of Tenant to enter
into any license and sub-license necessary to effectuate the foregoing and shall
not interfere with, and shall cause each such Affiliated Person to cooperate
with Landlord and its nominees, and not to interfere with, the exercise of such
right.
ARTICLE 16
SUBLETTING AND ASSIGNMENT
16.1 SUBLETTING AND ASSIGNMENT. Except as provided in SECTION 16.3,
Tenant shall not, without Landlord's prior written consent (which consent may be
given or withheld in Landlord's sole and absolute discretion), assign, mortgage,
pledge, hypothecate, encumber or otherwise transfer this Agreement or sublease
or permit the sublease (which term shall be deemed to include the granting of
concessions, licenses, sublicenses and the like), of the Leased Property, or any
portion thereof, or suffer or permit this Agreement or the leasehold estate
created
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hereby or any other rights arising under this Agreement to be assigned,
transferred, mortgaged, pledged, hypothecated or encumbered, in whole or in
part, whether voluntarily, involuntarily or by operation of law, or permit the
use or operation of the Leased Property, or any portion thereof, by anyone other
than Tenant or any Manager approved by Landlord pursuant to the applicable
provisions of this Agreement, or the Leased Property, or any portion thereof, to
be offered or advertised for assignment or subletting.
For purposes of this SECTION 16.1, an assignment of this Agreement
shall be deemed to include, without limitation, any direct or indirect Change in
Control of Tenant.
If this Agreement is assigned or if the Leased Property, or any
portion thereof is sublet (or occupied by anybody other than Tenant or any
Manager and their respective employees), after termination of this Agreement,
Landlord may collect the rents from such assignee, subtenant or occupant, as
the case may be, but no such collection shall be deemed a waiver of the
provisions set forth in the first paragraph of this SECTION 16.1, the
acceptance by Landlord of such assignee, subtenant or occupant, as the case
may be, as a tenant, or a release of Tenant from the future performance by
Tenant of its covenants, agreements or obligations contained in this
Agreement.
Any assignment or transfer of Tenant's interest under this Agreement
shall be subject to such assignee's or transferee's delivery to Landlord of a
Guaranty, which Guaranty shall be in form and substance satisfactory to
Landlord in its sole discretion and which Guaranty shall constitute a
Guaranty hereunder.
No subletting or assignment shall in any way impair the continuing
primary liability of Tenant hereunder (unless Landlord and Tenant expressly
otherwise agree that Tenant shall be released from all obligations hereunder),
and no consent to any subletting or assignment in a particular instance shall be
deemed to be a waiver of the prohibition set forth in this SECTION 16.1. No
assignment, subletting or occupancy shall affect any Permitted Use. Any
subletting, assignment or other transfer of Tenant's interest under this
Agreement in contravention of this SECTION 16.1 shall be voidable at Landlord's
option.
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16.2 REQUIRED SUBLEASE PROVISIONS. Any sublease of all or any portion
of the Leased Property entered into on or after the Commencement Date shall
provide (a) that the Subtenant shall, at Landlord's or Tenant's request pursuant
to Tenant's obligations or Landlord's rights under SECTION 5.3 or ARTICLE 15,
transfer as so requested any of its Operating Rights and/or other property
relating to such Leased Property (and shall be deemed to have granted Landlord
the power of attorney with respect to its Operating Rights and other property as
Tenant has granted pursuant to the second sentence of the second paragraph of
Section 5.3); (b) that it is subject and subordinate to this Agreement and to
the matters to which this Agreement is or shall be subject or subordinate; (c)
that in the event of termination of this Agreement or reentry or dispossession
of Tenant by Landlord under this Agreement, Landlord may, at its option,
terminate such sublease or take over all of the right, title and interest of
Tenant, as sublessor under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord pursuant to the then executory provisions
of such sublease, except that neither Landlord nor any Property Mortgagee, as
holder of a mortgage or as Landlord under this Agreement, if such mortgagee
succeeds to that position, shall (i) be liable for any act or omission of Tenant
under such sublease, (ii) be subject to any credit, counterclaim, offset or
defense which theretofore accrued to such subtenant against Tenant, (iii) be
bound by any previous modification of such sublease not consented to in writing
by Landlord or by any previous prepayment of more than one (1) month's rent,
(iv) be bound by any covenant of Tenant to undertake or complete any
construction of the applicable Property, or any portion thereof, (v) be required
to account for any security deposit of the subtenant other than any security
deposit actually delivered to Landlord by Tenant, (vi) be bound by any
obligation to make any payment to such subtenant or grant any credits, except
for services, repairs, maintenance and restoration provided for under the
sublease that are performed after the date of such attornment, (vii) be
responsible for any monies owing by Tenant to the credit of such subtenant
unless actually delivered to Landlord by Tenant, or (viii) be required to remove
any Person occupying any portion of the Leased Property; and (d) in the event
that such subtenant receives a written Notice from Landlord or any Property
Mortgagee stating that this Agreement has terminated, such subtenant shall
thereafter be obligated to pay all rentals accruing under such sublease directly
to the party giving such Notice or as such party may direct. Such sublease shall
provide that the subtenant thereunder shall, at the request of Landlord, execute
a suitable instrument in confirmation of such agreement
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to attorn. An original counterpart of each such sublease and assignment and
assumption, duly executed by Tenant and such subtenant or assignee, as the case
may be, in form and substance reasonably satisfactory to Landlord, shall be
delivered promptly to Landlord and (a) in the case of an assignment, the
assignee shall assume in writing and agree to keep and perform all of the terms
of this Agreement on the part of Tenant to be kept and performed and shall be,
and become, jointly and severally liable with Tenant for the performance thereof
and (b) in case of either an assignment or subletting, Tenant shall remain
primarily liable, as principal rather than as surety, for the prompt payment of
the Rent and for the performance and observance of all of the covenants and
conditions to be performed by Tenant hereunder.
The provisions of this SECTION 16.2 shall not be deemed a waiver of the
provisions set forth in the first paragraph of SECTION 16.1.
16.3 PERMITTED SUBLEASE. Subject to the provisions of SECTION 16.2
and SECTION 16.4 and any other express conditions or limitations set forth
herein, Tenant may, in each instance after Notice to Landlord and without
consent, (a) enter into third party agreements or sublease space at any
Property for fuel station, restaurant/food service or mechanical repair
purposes or other concessions in furtherance of the Permitted Use, so long as
such subleases will not violate or affect any Legal Requirement or Insurance
Requirement, and Tenant shall provide such additional insurance coverage
applicable to the activities to be conducted in such subleased space as
Landlord and any Property Mortgagee may reasonably require, and (b) enter
into one or more subleases or licenses with Affiliated Persons of Tenant with
respect to the Leased Property, or any portion thereof (including but without
limitation with respect to any trade names, trademarks, service marks, domain
names, logos and other brand-source indicia, including all goodwill related
thereto, constituting part of the Transferred Trademarks), PROVIDED Tenant
gives Landlord Notice of the material terms and conditions thereof and such
subleases or licenses or sublicenses do not grant any rights beyond the Term.
Landlord and Tenant acknowledge and agree that if Tenant enters into one (1)
or more subleases, licenses or sublicenses with Affiliated Persons of Tenant
with respect to any Property, or any portion thereof, in accordance with the
preceding clause (b), Tenant may allocate the rent and other charges with
respect to the affected Property in any reasonable manner; PROVIDED, HOWEVER,
that such allocation shall not affect Tenant's (nor any
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Guarantor's) liability for the Rent and other obligations of Tenant under this
Agreement; and, PROVIDED, FURTHER, that Tenant shall give Landlord prompt
written notice of any allocation or reallocation of the rent and other charges
with respect to the affected Property and, in any event, Tenant shall give
Landlord written notice of the amount of such allocations at least ten (10)
Business Days prior to the date that Landlord or Hospitality Properties Trust is
required to file any tax returns in any State where such affected Leased
Property is located.
16.4 SUBLEASE LIMITATION. Anything contained in this Agreement to the
contrary notwithstanding, Tenant shall not sublet or sublicense the Leased
Property, or any portion thereof, on any basis such that the rental to be paid
by any sublessee or sublicensee thereunder would be based, in whole or in part,
on the net income or profits derived by the business activities of such
sublessee or sublicensee, any other formula such that any portion of such
sublease rental or sublicense would fail to qualify as "rents from real
property" within the meaning of Section 856(d) of the Code, or any similar or
successor provision thereto or would otherwise disqualify Landlord or any
Affiliated Person for treatment as a "real estate investment trust" under the
Code.
ARTICLE 17
ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS
17.1 ESTOPPEL CERTIFICATES. At any time and from time to time, but not
more than a reasonable number of times per year, upon not less than ten (10)
Business Days prior Notice by either party, the party receiving such Notice
shall furnish to the other an Officer's Certificate certifying that this
Agreement is unmodified and in full force and effect (or that this Agreement is
in full force and effect as modified and setting forth the modifications), the
date to which the Rent has been paid, that no Default or an Event of Default has
occurred and is continuing or, if a Default or an Event of Default shall exist,
specifying in reasonable detail the nature thereof, and the steps being taken to
remedy the same, and such additional information as the requesting party may
reasonably request. Any such certificate furnished pursuant to this SECTION 17.1
may be relied upon by the requesting party, its lenders and any prospective
purchaser or mortgagee of the Leased Property, or any portion thereof, or the
leasehold estate created hereby.
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17.2 FINANCIAL STATEMENTS. Tenant shall furnish or cause TCA to
furnish, as applicable, the following statements to Landlord:
(a) within forty-five (45) days after each of the first three fiscal
quarters of any Fiscal Year, the most recent Consolidated Financials,
accompanied by the Financial Officer's Certificate;
(b) within ninety (90) days after the end of each Fiscal Year, the most
recent Consolidated Financials and financials of Tenant for such year, certified
by an independent certified public accountant reasonably satisfactory to
Landlord and accompanied by a Financial Officer's Certificate;
(c) within forty-five (45) days after the end of each month, an
unaudited operating statement and statement of Capital Expenditures prepared on
a Property by Property basis and a combined basis, accompanied by a Financial
Officer's Certificate;
(d) at any time and from time to time upon not less than twenty (20)
days Notice from Landlord or such additional period as may be reasonable under
the circumstances, any Consolidated Financials, Tenant financials or any other
audited or unaudited financial reporting information required to be filed by
Landlord with any securities and exchange commission, the SEC or any successor
agency, or any other governmental authority, or required pursuant to any order
issued by any court, governmental authority or arbitrator in any litigation to
which Landlord is a party, for purposes of compliance therewith;
(e) promptly after receipt or sending thereof, copies of all notices
given or received by Tenant under any Management Agreement or TA Franchise
Agreement; and
(f) promptly upon Notice from Landlord, such other information
concerning the business, financial condition and affairs of Tenant, any
Guarantor, and/or any Affiliated Person of Tenant as Landlord reasonably may
request from time to time.
Landlord may at any time, and from time to time, provide any Property Mortgagee
with copies of any of the foregoing statements, subject to Landlord obtaining
the agreement of such Property Mortgagee to maintain such statements and the
information therein as confidential.
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ARTICLE 18
LANDLORD'S RIGHT TO INSPECT, QUALITY CONTROL, USE OF
TRANSFERRED TRADEMARKS AND ENFORCEMENT
18.1 INSPECTION. Tenant shall permit Landlord and its authorized
representatives to inspect the Leased Property, or any portion thereof,
during usual business hours upon not less than forty-eight (48) hours' notice
and to make such repairs as Landlord is permitted or required to make
pursuant to the terms of this Agreement, provided that any inspection or
repair by Landlord or its representatives will not unreasonably interfere
with Tenant's use and operation of the Leased Property and further provided
that in the event of an emergency, as determined by Landlord in its
reasonable discretion, prior Notice shall not be necessary.
18.2 QUALITY CONTROL. Landlord shall have the right to exercise quality
control over the use made by Tenant (and any and all Affiliated Persons and
permitted sublicensees) of the Transferred Trademarks to a degree reasonably
necessary to maintain the validity and enforceability of the Transferred
Trademarks and to protect the goodwill associated therewith. Tenant (and any and
all Affiliated Persons and permitted sublicensees) shall not combine the
Transferred Trademarks with any other trademarks, service marks, trade names,
logos, domain names or other brand-source indicia unless it obtains Landlord's
prior written consent.
18.3 TRANSFERRED TRADEMARKS, REGISTRATION AND MAINTENANCE. Tenant shall
be responsible for trademark registration and maintenance on behalf of Landlord.
18.4 ENFORCEMENT. In the event that Tenant (or any Affiliated Person
or sublicensee) learns of any infringement or unauthorized use of any of the
Transferred Trademarks, it shall promptly notify Landlord. If requested to do
so, Tenant (and any and all Affiliated Persons and sublicensees) shall
cooperate with and assist Landlord in any action that Landlord may commence
to protect its right, title and interest in the Transferred Trademarks,
including joining the action as a party if necessary.
ARTICLE 19
EASEMENTS
19.1 GRANT OF EASEMENTS. Provided no Event of Default has occurred and
is continuing, Landlord will join in granting and,
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if necessary, modifying or abandoning such rights-of-way, easements and other
interests as may be reasonably requested by Tenant for ingress and egress, and
electric, telephone, gas, water, sewer and other utilities so long as:
(a) the instrument creating, modifying or abandoning any such easement,
right-of-way or other interest is satisfactory to and approved by Landlord
(which approval shall not be unreasonably withheld, delayed or conditioned);
(b) Landlord receives an Officer's Certificate from Tenant stating (i)
that such grant, modification or abandonment is not detrimental to the proper
conduct of business on such Property, (ii) the consideration, if any, being paid
for such grant, modification or abandonment (which consideration shall be paid
by Tenant), (iii) that such grant, modification or abandonment does not impair
the use or value of such Property for the Permitted Use, and (iv) that, for as
long as this Agreement shall be in effect, Tenant will perform all obligations,
if any, of Landlord under any such instrument; and
(c) Landlord receives evidence satisfactory to Landlord that the
Manager has granted its consent to such grant, modification or abandonment in
accordance with the requirements of such Manager's Management Agreement or that
such consent is not required.
19.2 EXERCISE OF RIGHTS BY TENANT. So long as no Event of Default has
occurred and is continuing, Tenant shall have the right to exercise all rights
of Landlord under the Easement Agreements and, in connection therewith, Landlord
shall execute and promptly return to Tenant such documents as Tenant shall
reasonably request. Tenant shall perform all obligations of Landlord under the
Easement Agreements.
19.3 PERMITTED ENCUMBRANCES. Any agreements entered into in accordance
with this ARTICLE 19 shall be deemed a Permitted Encumbrance.
ARTICLE 20
PROPERTY MORTGAGES
20.1 LANDLORD MAY GRANT LIENS. Without the consent of Tenant,
Landlord may, from time to time, directly or indirectly, create or otherwise
cause to exist any lien, encumbrance or title retention agreement
("ENCUMBRANCE") upon the Leased Property (other than the Retained Buildings),
or any portion thereof, or interest therein, whether
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to secure any borrowing or other means of financing or refinancing.
20.2 SUBORDINATION OF LEASE. This Agreement and any and all rights of
Tenant hereunder are and shall be subject and subordinate to any ground or
master lease, and all renewals, extensions, modifications and replacements
thereof, and to all mortgages and deeds of trust, which may now or hereafter
affect the Leased Property, or any portion thereof, or any improvements thereon
and/or any of such leases, whether or not such mortgages or deeds of trust shall
also cover other lands and/or buildings and/or leases, to each and every advance
made or hereafter to be made under such mortgages and deeds of trust, and to all
renewals, modifications, replacements and extensions of such leases and such
mortgages and deeds of trust and all consolidations of such mortgages and deeds
of trust. This section shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall promptly execute, acknowledge and deliver any instrument that Landlord,
the lessor under any such lease or the holder of any such mortgage or the
trustee or beneficiary of any deed of trust or any of their respective
successors in interest may reasonably request to evidence such subordination.
Any lease to which this Agreement is, at the time referred to, subject and
subordinate is herein called "SUPERIOR LEASE" and the lessor of a Superior Lease
or its successor in interest at the time referred to is herein called "SUPERIOR
LANDLORD" and any mortgage or deed of trust to which this Agreement is, at the
time referred to, subject and subordinate is herein called "SUPERIOR MORTGAGE"
and the holder, trustee or beneficiary of a Superior Mortgage is herein called
"SUPERIOR MORTGAGEE". Tenant shall have no obligations under any Superior Lease
or Superior Mortgage other than those expressly set forth in this SECTION 20.2.
If any Superior Landlord or Superior Mortgagee or the nominee or
designee of any Superior Landlord or Superior Mortgagee shall succeed to the
rights of Landlord under this Agreement (any such person, "SUCCESSOR LANDLORD"),
whether through possession or foreclosure action or delivery of a new lease or
deed, or otherwise, at such Successor Landlord's request, Tenant shall attorn to
and recognize the Successor Landlord as Tenant's landlord under this Agreement
and Tenant shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment (provided that such
instrument does not alter the terms of this Agreement), whereupon, this
Agreement shall
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continue in full force and effect as a direct lease between the Successor
Landlord and Tenant upon all of the terms, conditions and covenants as are set
forth in this Agreement, except that the Successor Landlord (unless formerly the
landlord under this Agreement or its nominee or designee) shall not be (a)
liable in any way to Tenant for any act or omission, neglect or default on the
part of any prior Landlord under this Agreement, (b) responsible for any monies
owing by or on deposit with any prior Landlord to the credit of Tenant (except
to the extent actually paid or delivered to the Successor Landlord), (c) subject
to any counterclaim or setoff which theretofore accrued to Tenant against any
prior Landlord, (d) bound by any modification of this Agreement subsequent to
such Superior Lease or Mortgage, or by any previous prepayment of Rent for more
than one (1) month in advance of the date due hereunder, which was not approved
in writing by the Superior Landlord or the Superior Mortgagee thereto, (e)
liable to Tenant beyond the Successor Landlord's interest in the Leased Property
and the rents, income, receipts, revenues, issues and profits issuing from the
Leased Property, (f) responsible for the performance of any work to be done by
the Landlord under this Agreement to render the Leased Property ready for
occupancy by Tenant (subject to Landlord's obligations under SECTION 5.1.2(b) or
with respect to any insurance or Condemnation proceeds), or (g) required to
remove any Person occupying the Leased Property or any part thereof, except if
such person claims by, through or under the Successor Landlord. Tenant agrees at
any time and from time to time to execute a suitable instrument in confirmation
of Tenant's agreement to attorn, as aforesaid, and Landlord agrees to provide
Tenant with an instrument of nondisturbance and attornment from each such
Superior Mortgagee and Superior Landlord (other than the lessors under any
ground leases with respect to the Leased Property, or any portion thereof) in
form and substance reasonably satisfactory to Tenant. Notwithstanding the
foregoing, any Successor Landlord shall be liable (a) to pay to Tenant any
amounts owed under SECTION 5.1.2(b), and (b) to pay to Tenant any portions of
insurance proceeds or Awards received by Landlord or the Successor Landlord
required to be paid to Tenant pursuant to the terms of this Agreement, and, as a
condition to any mortgage, lien or lease in respect of the Leased Property, or
any portion thereof, and the subordination of this Agreement thereto, the
mortgagee, lienholder or lessor, as applicable, shall expressly agree, for the
benefit of Tenant, to make such payments, which agreement shall be embodied in
an instrument in form reasonably satisfactory to Tenant.
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20.3 NOTICE TO MORTGAGEE AND SUPERIOR LANDLORD. Subsequent to the
receipt by Tenant of Notice from Landlord as to the identity of any Property
Mortgagee or Superior Landlord under a lease with Landlord, as ground lessee,
which includes the Leased Property, or any portion thereof, as part of the
demised premises and which complies with SECTION 20.1 (which Notice shall be
accompanied by a copy of the applicable mortgage or lease), no Notice from
Tenant to Landlord as to a default by Landlord under this Agreement shall be
effective with respect to a Property Mortgagee or Superior Landlord unless and
until a copy of the same is given to such Property Mortgagee or Superior
Landlord at the address set forth in the above described Notice, and the curing
of any of Landlord's defaults within the applicable notice and cure periods set
forth in ARTICLE 14 by such Property Mortgagee or Superior Landlord shall be
treated as performance by Landlord.
ARTICLE 21
ADDITIONAL COVENANTS OF LANDLORD AND TENANT
21.1 PROMPT PAYMENT OF INDEBTEDNESS. Tenant shall (a) pay or cause to
be paid when due all payments of principal of and premium and interest on
Tenant's Indebtedness for money borrowed and shall not permit or suffer any such
Indebtedness to become or remain in default beyond any applicable grace or cure
period, (b) pay or cause to be paid when due all lawful claims for labor and
rents with respect to the Leased Property, (c) pay or cause to be paid when due
all trade payables and (d) pay or cause to be paid when due all other of
Tenant's Indebtedness upon which it is or becomes obligated, except, in each
case, other than that referred to in clause (a), to the extent payment is being
contested in good faith by appropriate proceedings in accordance with ARTICLE 8
and if Tenant shall have set aside on its books adequate reserves with respect
thereto in accordance with GAAP, if appropriate, or unless and until
foreclosure, distraint sale or other similar proceedings shall have been
commenced.
21.2 CONDUCT OF BUSINESS. Tenant shall not engage in any business other
than the leasing and operation of the Leased Property (including any incidental
or ancillary business relating thereto) and shall do or cause to be done all
things necessary to preserve, renew and keep in full force and effect and in
good standing its legal existence and its rights and licenses necessary to
conduct such business.
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21.3 MAINTENANCE OF ACCOUNTS AND RECORDS. Tenant shall keep true
records and books of account of Tenant in which full, true and correct entries
will be made of dealings and transactions in relation to the business and
affairs of Tenant in accordance with GAAP. Tenant shall apply accounting
principles in the preparation of the financial statements of Tenant which, in
the judgment of and the opinion of its independent public accountants, are in
accordance with GAAP, where applicable, except for changes approved by such
independent public accountants. Tenant shall provide to Landlord either in a
footnote to the financial statements delivered under SECTION 17.2 which relate
to the period in which such change occurs, or in separate schedules to such
financial statements, information sufficient to show the effect of any such
changes on such financial statements.
21.4 NOTICE OF LITIGATION, ETC. Tenant shall give prompt Notice to
Landlord of any litigation or any administrative proceeding to which it may
hereafter become a party of which Tenant has notice or actual knowledge which
involves a potential liability equal to or greater than Two Hundred Fifty
Thousand Dollars ($250,000) or which may otherwise result in any material
adverse change in the business, operations, property, prospects, results of
operation or condition, financial or other, of Tenant. Forthwith upon Tenant
obtaining knowledge of any Default, Event of Default or any default or event of
default under any agreement relating to Indebtedness for money borrowed in an
aggregate amount exceeding, at any one time, Two Hundred Fifty Thousand Dollars
($250,000), or any event or condition that would be required to be disclosed in
a current report filed by Tenant on Form 8-K or in Part II of a quarterly report
on Form 10-Q if Tenant were required to file such reports under the Securities
Exchange Act of 1934, as amended, Tenant shall furnish Notice thereof to
Landlord specifying the nature and period of existence thereof and what action
Tenant has taken or is taking or proposes to take with respect thereto.
21.5 INDEBTEDNESS OF TENANT. Tenant shall not create, incur, assume or
guarantee, or permit to exist, or become or remain liable directly or indirectly
upon, any Indebtedness except the following:
(a) Indebtedness of Tenant to Landlord;
(b) Indebtedness of Tenant for Impositions, to the extent that payment
thereof shall not at the time be required to be made in accordance with the
provisions of ARTICLE 8;
68
(c) Indebtedness of Tenant in respect of judgments or awards (i) which
have been in force for less than the applicable appeal period and in respect of
which execution thereof shall have been stayed pending such appeal or review, or
(ii) which are fully covered by insurance payable to Tenant, or (iii) which are
for an amount not in excess of $250,000 in the aggregate at any one time
outstanding and (x) which have been in force for not longer than the applicable
appeal period, so long as execution is not levied thereunder or (y) in respect
of which an appeal or proceedings for review shall at the time be prosecuted in
good faith in accordance with the provisions of ARTICLE 8, and in respect of
which execution thereof shall have been stayed pending such appeal or review;
(d) unsecured borrowings of Tenant from its Affiliated Persons which
are by their terms expressly subordinate pursuant to a Subordination Agreement
to the payment and performance of Tenant's obligations under this Agreement; or
(e) Indebtedness for purchase money financing in accordance with
SECTION 21.8(a) and other operating liabilities incurred in the ordinary course
of Tenant's business;
(f) Indebtedness of Tenant as guarantor or borrower secured by Liens
permitted under SECTION 21.8(c); or
(g) A guaranty of TCA's obligations under its revolving line of credit
and for any privately placed or publicly issued debt.
21.6 DISTRIBUTIONS, PAYMENTS TO AFFILIATED PERSONS, ETC. Tenant shall
not declare, order, pay or make, directly or indirectly, any Distributions or
any payment to any Affiliated Person of Tenant (including payments in the
ordinary course of business) or set apart any sum or property therefor, or agree
to do so, if, at the time of such proposed action, or immediately after giving
effect thereto, any Event of Default shall have occurred and be continuing.
Otherwise, as long as no Event of Default shall have occurred and be continuing,
Tenant may make Distributions and payments to Affiliated Persons; PROVIDED,
HOWEVER, that any such payments shall at all times be subordinate to Tenant's
obligations under this Agreement.
21.7 PROHIBITED TRANSACTIONS. Tenant shall not permit to exist or enter
into any agreement or arrangement whereby it engages in a transaction of any
kind with any Affiliated Person
69
as to Tenant or any Guarantor, except on terms and conditions which are
commercially reasonable.
21.8 LIENS AND ENCUMBRANCES. Except as permitted by ARTICLE 7 and
SECTION 21.5, Tenant shall not create or incur or suffer to be created or
incurred or to exist any Lien on this Agreement or any of Tenant's assets,
properties, rights or income, or any of its interest therein, now or at any time
hereafter owned, other than:
(a) Security interests securing the purchase price of equipment or
personal property whether acquired before or after the Commencement Date;
PROVIDED, HOWEVER, that (i) such Lien shall at all times be confined solely to
the asset in question and (ii) the aggregate principal amount of Indebtedness
secured by any such Lien shall not exceed the cost of acquisition or
construction of the property subject thereto;
(b) Permitted Encumbrances;
(c) Security interests in Accounts or Chattel Paper, in Support
Obligations, General Intangibles or Deposit Accounts relating to such Accounts
or Chattel Paper, in any Instruments or Investment Property evidencing or
arising from such Accounts or Chattel Paper, in any documents, books, records or
other information (including, without limitation, computer programs, tapes,
discs, punch cards, data processing software and related property and rights)
maintained with respect to any property described in this SECTION 21.8(c) or in
any Proceeds of any of the foregoing (capitalized terms used in this SECTION
21.8(c) without definition being used as defined in or for purposes of Article 9
of the Uniform Commercial Code as in effect in the Commonwealth of
Massachusetts); or
(d) As permitted pursuant to SECTION 21.5.
21.9 MERGER; SALE OF ASSETS; ETC. Without Landlord's prior written
consent (which consent may be given or withheld in Landlord's sole discretion),
Tenant shall not (i) sell, lease (as lessor or sublessor), transfer or otherwise
dispose of, or abandon, all or any material portion of its assets (including
capital stock or other equity interests) or business to any Person, (ii) merge
into or with or consolidate with any other Entity, or (iii) sell, lease (as
lessor or sublessor), transfer or otherwise dispose of, or abandon, any personal
property or fixtures or any real property; PROVIDED, HOWEVER, that,
notwithstanding the provisions of clause (iii) preceding, Tenant
70
may dispose of equipment or fixtures which have become inadequate, obsolete,
worn-out, unsuitable, undesirable or unnecessary, provided substitute equipment
or fixtures having equal or greater value and utility (but not necessarily
having the same function) have been provided.
21.10 BANKRUPTCY REMOTE ENTITIES. At Landlord's request, Tenant shall
make such amendments, modifications or other changes to its charter documents
and governing bodies (including, without limitation, Tenant's board of
directors), and take such other actions, as may from time to time be necessary
to qualify Tenant as a "bankruptcy remote entity", PROVIDED THAT Landlord shall
reimburse Tenant for all costs and expenses reasonably incurred by Tenant in
connection with the making of such amendments or modifications.
21.11 TRADE AREA RESTRICTION. Notwithstanding anything to the contrary
in this Agreement, neither Tenant nor any Affiliated Person of Tenant shall
acquire, own, franchise, finance, lease, manage, operate or open any Travel
Center or similar business within seventy-five (75) miles in either direction
along the primary interstate on which any Property is located without Landlord's
consent, which consent may be given or withheld in Landlord's sole discretion.
ARTICLE 22
ARBITRATION
Landlord or Tenant may elect to submit any dispute hereunder that has
an amount in controversy in excess of $250,000 to arbitration hereunder. Any
such arbitration shall be conducted in Boston, Massachusetts in accordance with
the Commercial Arbitration Rules of the American Arbitration Association then
pertaining and the decision of the arbitrators with respect to such dispute
shall be binding, final and conclusive on the parties.
In the event Landlord or Tenant shall elect to submit any such dispute
to arbitration hereunder, Landlord and Tenant shall each appoint and pay all
fees of a fit and impartial person as arbitrator with at least ten (10) years'
recent professional experience in the general subject matter of the dispute.
Notice of such appointment shall be sent in writing by each party to the other,
and the arbitrators so appointed, in the event of their failure to agree within
thirty (30) days after the appointment of the second arbitrator upon the matter
so
71
submitted, shall appoint a third arbitrator. If either Landlord or Tenant shall
fail to appoint an arbitrator, as aforesaid, for a period of twenty (20) days
after written notice from the other party to make such appointment, then the
arbitrator appointed by the party having made such appointment shall appoint a
second arbitrator and the two (2) so appointed shall, in the event of their
failure to agree upon any decision within thirty (30) days thereafter, appoint a
third arbitrator. If such arbitrators fail to agree upon a third arbitrator
within forty five (45) days after the appointment of the second arbitrator, then
such third arbitrator shall be appointed by the American Arbitration Association
from its qualified panel of arbitrators, and shall be a person having at least
ten (10) years' recent professional experience as to the subject matter in
question. The fees of the third arbitrator and the expenses incident to the
proceedings shall be borne equally between Landlord and Tenant, unless the
arbitrators decide otherwise. The fees of respective counsel engaged by the
parties, and the fees of expert witnesses and other witnesses called for the
parties, shall be paid by the respective party engaging such counsel or calling
or engaging such witnesses.
The decision of the arbitrators shall be rendered within thirty (30)
days after appointment of the third arbitrator. Such decision shall be in
writing and in duplicate, one counterpart thereof to be delivered to Landlord
and one to Tenant. A judgment of a court of competent jurisdiction may be
entered upon the award of the arbitrators in accordance with the rules and
statutes applicable thereto then obtaining.
Landlord and Tenant acknowledge and agree that, to the extent any such
dispute shall involve any Manager and be subject to arbitration pursuant to such
Manager's Management Agreement, Landlord and Tenant shall cooperate to
consolidate any such arbitration hereunder and under such Management Agreement
into a single proceeding.
ARTICLE 23
MISCELLANEOUS
23.1 LIMITATION ON PAYMENT OF RENT. All agreements between Landlord and
Tenant herein are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of acceleration of Rent, or otherwise, shall the
Rent or any other amounts payable to Landlord under this Agreement exceed the
maximum permissible under applicable law, the benefit of
72
which may be asserted by Tenant as a defense, and if, from any circumstance
whatsoever, fulfillment of any provision of this Agreement, at the time
performance of such provision shall be due, shall involve transcending the limit
of validity prescribed by law, or if from any circumstances Landlord should ever
receive as fulfillment of such provision such an excessive amount, then, IPSO
FACTO, the amount which would be excessive shall be applied to the reduction of
the installment(s) of Minimum Rent next due and not to the payment of such
excessive amount. This provision shall control every other provision of this
Agreement and any other agreements between Landlord and Tenant.
23.2 NO WAIVER. No failure by Landlord or Tenant to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial payment
of Rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of any such term. To the maximum extent permitted by law, no
waiver of any breach shall affect or alter this Agreement, which shall continue
in full force and effect with respect to any other then existing or subsequent
breach.
23.3 REMEDIES CUMULATIVE. To the maximum extent permitted by law, each
legal, equitable or contractual right, power and remedy of Landlord or Tenant,
now or hereafter provided either in this Agreement or by statute or otherwise,
shall be cumulative and concurrent and shall be in addition to every other
right, power and remedy and the exercise or beginning of the exercise by
Landlord or Tenant (as applicable) of any one or more of such rights, powers and
remedies shall not preclude the simultaneous or subsequent exercise by Landlord
of any or all of such other rights, powers and remedies.
23.4 SEVERABILITY. Any clause, sentence, paragraph, section or
provision of this Agreement held by a court of competent jurisdiction to be
invalid, illegal or ineffective shall not impair, invalidate or nullify the
remainder of this Agreement, but rather the effect thereof shall be confined to
the clause, sentence, paragraph, section or provision so held to be invalid,
illegal or ineffective, and this Agreement shall be construed as if such
invalid, illegal or ineffective provisions had never been contained therein.
23.5 ACCEPTANCE OF SURRENDER. No surrender to Landlord of this
Agreement or of the Leased Property or any part thereof, or
73
of any interest therein, shall be valid or effective unless agreed to and
accepted in writing by Landlord and no act by Landlord or any representative or
agent of Landlord, other than such a written acceptance by Landlord, shall
constitute an acceptance of any such surrender.
23.6 NO MERGER OF TITLE. It is expressly acknowledged and agreed that
it is the intent of the parties that there shall be no merger of this Agreement
or of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, this Agreement or the
leasehold estate created hereby and the fee estate or ground landlord's interest
in the Leased Property.
23.7 CONVEYANCE BY LANDLORD. If Landlord or any successor owner of all
or any portion of the Leased Property shall convey all or any portion of the
Leased Property in accordance with the terms hereof other than as security for a
debt, and the grantee or transferee of such of the Leased Property shall
expressly assume all obligations of Landlord hereunder arising or accruing from
and after the date of such conveyance or transfer, Landlord or such successor
owner, as the case may be, shall thereupon be released from all future
liabilities and obligations of Landlord under this Agreement with respect to
such of the Leased Property arising or accruing from and after the date of such
conveyance or other transfer and all such future liabilities and obligations
shall thereupon be binding upon the new owner.
23.8 QUIET ENJOYMENT. Tenant shall peaceably and quietly have, hold and
enjoy the Real Property (other than the Retained Buildings) for the Term, free
of hindrance or molestation by Landlord or anyone claiming by, through or under
Landlord, but subject to (a) any Encumbrance permitted under ARTICLE 20 or
otherwise permitted to be created by Landlord hereunder, (b) all Permitted
Encumbrances, (c) liens as to obligations of Landlord that are either not yet
due or which are being contested in good faith and by proper proceedings,
provided the same do not materially interfere with Tenant's ability to operate
any Travel Center and (d) liens that have been consented to in writing by
Tenant. Except as otherwise provided in this Agreement, no failure by Landlord
to comply with the foregoing covenant shall give Tenant any right to cancel or
terminate this Agreement or xxxxx, reduce or make a deduction from or offset
against the Rent or any other sum payable under this Agreement, or to fail to
perform any other obligation of Tenant hereunder.
74
23.9 NO RECORDATION. Neither Landlord nor Tenant shall record this
Agreement.
23.10 NOTICES.
(a) Any and all notices, demands, consents, approvals, offers,
elections and other communications required or permitted under this Agreement
shall be deemed adequately given if in writing and the same shall be delivered
either in hand, by telecopier with written acknowledgment of receipt, or by mail
or Federal Express or similar expedited commercial carrier, addressed to the
recipient of the notice, postpaid and registered or certified with return
receipt requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).
(b) All notices required or permitted to be sent hereunder shall be
deemed to have been given for all purposes of this Agreement upon the date of
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Agreement a notice is either received on a day which is not a Business Day or is
required to be delivered on or before a specific day which is not a Business
Day, the day of receipt or required delivery shall automatically be extended to
the next Business Day.
(c) All such notices shall be addressed,
if to Landlord:
c/o Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
if to Tenant:
c/o TravelCenters of America LLC
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx
[Telecopier No. (000)-000-0000]
(d) By notice given as herein provided, the parties hereto and their
respective successors and assigns shall have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
effective upon
75
receipt by the other parties of such notice and each shall have the right to
specify as its address any other address within the United States of America.
23.11 CONSTRUCTION. Anything contained in this Agreement to the
contrary notwithstanding, all claims against, and liabilities of, Tenant or
Landlord arising prior to any date of termination or expiration of this
Agreement with respect to the Leased Property shall survive such termination or
expiration. In no event shall Landlord be liable for any consequential damages
suffered by Tenant as the result of a breach of this Agreement by Landlord.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
to be charged. All the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Each term or provision of this Agreement to be performed
by Tenant shall be construed as an independent covenant and condition. Time is
of the essence with respect to the provisions of this Agreement. Except as
otherwise set forth in this Agreement, any obligations of Tenant (including
without limitation, any monetary, repair and indemnification obligations) and
Landlord shall survive the expiration or sooner termination of this Agreement.
Tenant hereby acknowledges that the agreement between Landlord and Tenant to
treat this Agreement as a single lease in all respects was and is of primary
importance, and a material inducement, to Landlord to enter into this Agreement.
Without limiting the generality of the foregoing, the parties hereto acknowledge
that this Agreement constitutes a single lease of the Leased Property and is not
divisible notwithstanding any references herein to any individual Property and
notwithstanding the possibility that certain individual Properties may be
deleted herefrom pursuant to the express provisions of this Agreement.
23.12 COUNTERPARTS; HEADINGS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but which, when
taken together, shall constitute but one instrument and shall become effective
as of the date hereof when copies hereof, which, when taken together, bear the
signatures of each of the parties hereto shall have been signed. Headings in
this Agreement are for purposes of reference only and shall not limit or affect
the meaning of the provisions hereof.
23.13 APPLICABLE LAW, ETC. Except as to matters regarding the internal
affairs of Landlord and issues of or limitations on
76
any personal liability of the shareholders and trustees or directors of Landlord
for obligations of Landlord, as to which the laws of the State of Maryland shall
govern, this Agreement shall be interpreted, construed, applied and enforced in
accordance with the laws of The Commonwealth of Massachusetts applicable to
contracts between residents of Massachusetts which are to be performed entirely
within Massachusetts, regardless of (i) where this Agreement is executed or
delivered; or (ii) where any payment or other performance required by this
Agreement is made or required to be made; or (iii) where any breach of any
provision of this Agreement occurs, or any cause of action otherwise accrues; or
(iv) where any action or other proceeding is instituted or pending; or (v) the
nationality, citizenship, domicile, principal place of business, or jurisdiction
of organization or domestication of any party; or (vi) whether the laws of the
forum jurisdiction otherwise would apply the laws of a jurisdiction other than
Massachusetts; or (vii) any combination of the foregoing. Notwithstanding the
foregoing, the laws of the State shall apply to the perfection and priority of
liens upon and the disposition of any Property.
23.14 RIGHT TO MAKE AGREEMENT. Each party warrants, with respect to
itself, that neither the execution of this Agreement, nor the consummation of
any transaction contemplated hereby, shall violate any provision of any law, or
any judgment, writ, injunction, order or decree of any court or governmental
authority having jurisdiction over it; nor result in or constitute a breach or
default under any indenture, contract, other commitment or restriction to which
it is a party or by which it is bound; nor require any consent, vote or approval
which has not been given or taken, or at the time of the transaction involved
shall not have been given or taken. Each party covenants that it has and will
continue to have throughout the term of this Agreement and any extensions
thereof, the full right to enter into this Agreement and perform its obligations
hereunder.
23.15 ATTORNEYS' FEES. If any lawsuit or arbitration or other legal
proceeding arises in connection with the interpretation or enforcement of this
Agreement, the prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in connection therewith, in preparation therefor and on
appeal therefrom, which amounts shall be included in any judgment therein.
77
23.16 NONLIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING
HPT TA PROPERTIES TRUST, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO
(THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME OF SUCH ENTITY REFERS
TO THE TRUSTEES UNDER SUCH DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF SUCH ENTITY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SUCH ENTITY. ALL PERSONS
DEALING WITH SUCH ENTITY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF SUCH
ENTITY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
78
IN WITNESS WHEREOF, the parties have executed this Agreement as a
sealed instrument as of the date above first written.
LANDLORD:
HPT TA PROPERTIES TRUST
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
HPT TA PROPERTIES LLC
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
TENANT:
TA LEASING LLC
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
79
EXHIBITS X-0 XXXXXXX X-000
XXXX
[See attached copies.]
EXHIBIT B
LIST OF RETAINED BUILDINGS
Buildings located at the following addresses:
1. 000 Xxxx Xxxxx Xxxx., Xxxxxxxxxx, Xxxxxxx 00000.
2. 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000.
3. 0000 00xx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000.
4. 00000 X. Xxxxx Xx. 00, Xxxxxxx, Xxxxxxx 00000.
5. 0000 XX 0, X.X. Xxx 000X, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000.
6. 000 X. Xxxxx Xxxxxx Xx., X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxxxxxx 00000.
7. 000 Xxx. 000, Xxxxxxx, Xxxxxxxxx 00000.
8. 00000 Xxxxxxxx Xx., X.X. Xxx 0000, Xxxxxxx, Xxxxxxxx 00000.
9. RR1 X.X. Xxx 0000, Xxxxxx Xxxxx, Xxxx Xxxxxxxx 00000.
EXHIBIT C
LIST OF CAPITAL ADDITIONS
[See attached copy.]
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS ................................................................................... 1
1.1 ADDITIONAL CHARGES ...........................................................................1
1.2 ADDITIONAL RENT...............................................................................1
1.3 AFFILIATED PERSON.............................................................................2
1.4 AGREEMENT.....................................................................................2
1.5 ALLOWANCE.....................................................................................2
1.6 APPLICABLE LAWS...............................................................................2
1.7 AWARD.........................................................................................3
1.8 BASE FUEL GROSS REVENUES......................................................................3
1.9 BASE NON-FUEL GROSS REVENUES..................................................................3
1.10 BASE YEAR.....................................................................................3
1.11 BUSINESS DAY..................................................................................3
1.12 CAPITAL ADDITION..............................................................................3
1.13 CAPITAL EXPENDITURE...........................................................................3
1.14 CAPITAL REPLACEMENTS BUDGET...................................................................3
1.15 CHANGE IN CONTROL.............................................................................3
1.16 CLAIM.........................................................................................4
1.17 CODE..........................................................................................4
1.18 COMMENCEMENT DATE.............................................................................4
1.19 CONDEMNATION..................................................................................4
1.20 CONDEMNOR.....................................................................................4
1.21 CONSOLIDATED FINANCIALS.......................................................................5
1.22 DATE OF TAKING................................................................................5
1.23 DEFAULT.......................................................................................5
1.24 DISBURSEMENT RATE.............................................................................5
1.25 DISTRIBUTION..................................................................................5
1.26 EASEMENT AGREEMENT............................................................................5
1.27 ENCUMBRANCE...................................................................................5
1.28 ENTITY........................................................................................5
1.29 ENVIRONMENT...................................................................................6
1.30 ENVIRONMENTAL OBLIGATION......................................................................6
1.31 ENVIRONMENTAL NOTICE..........................................................................6
1.32 ENVIRONMENTAL REPORT..........................................................................6
1.33 EVENT OF DEFAULT..............................................................................6
1.34 EXCESS FUEL GROSS REVENUES....................................................................6
1.35 EXCESS NON-FUEL GROSS REVENUES................................................................6
1.36 EXISTING THIRD PARTY TRADE NAMES AND SERVICE XXXX RIGHTS .....................................6
1.37 FAIR MARKET VALUE.............................................................................6
1.38 FAIR MARKET VALUE RENT........................................................................7
1.39 FINANCIAL OFFICER'S CERTIFICATE...............................................................7
1.40 FISCAL YEAR...................................................................................7
1.41 FIXTURES......................................................................................7
1.42 FUEL SALES CAP................................................................................7
1.43 GAAP..........................................................................................7
1.44 GOVERNMENT AGENCIES...........................................................................7
1.45 GROSS FUEL REVENUES...........................................................................8
1.46 GROSS NON-FUEL REVENUES.......................................................................8
i
1.47 GROUND LEASES.................................................................................9
1.48 GUARANTOR.....................................................................................9
1.49 GUARANTY......................................................................................9
1.50 HAZARDOUS SUBSTANCES..........................................................................9
1.51 IMMEDIATE FAMILY.............................................................................10
1.52 IMPOSITIONS..................................................................................10
1.53 INDEBTEDNESS.................................................................................11
1.54 INDEX........................................................................................12
1.55 INSURANCE REQUIREMENTS.......................................................................12
1.56 INTEREST RATE................................................................................12
1.57 LAND.........................................................................................12
1.58 LANDLORD.....................................................................................12
1.59 LANDLORD DEFAULT.............................................................................12
1.60 LANDLORD LIENS...............................................................................12
1.61 LEASE YEAR...................................................................................13
1.62 LEASED IMPROVEMENTS..........................................................................13
1.63 LEASED INTANGIBLE PROPERTY...................................................................13
1.64 LEASED PROPERTY..............................................................................13
1.65 LEGAL REQUIREMENTS...........................................................................13
1.66 LIEN.........................................................................................14
1.67 MANAGER......................................................................................14
1.68 MANAGEMENT AGREEMENT.........................................................................14
1.69 MINIMUM RENT.................................................................................14
1.70 NOTICE.......................................................................................15
1.71 OFFICER'S CERTIFICATE........................................................................15
1.72 OPERATING RIGHTS.............................................................................15
1.73 OVERDUE RATE.................................................................................15
1.74 PARENT.......................................................................................15
1.75 PERMITTED ENCUMBRANCES.......................................................................15
1.76 PERMITTED LIENS..............................................................................15
1.77 PERMITTED USE................................................................................15
1.78 PERSON.......................................................................................15
1.79 PROPERTY.....................................................................................15
1.80 PROPERTY MORTGAGE............................................................................16
1.81 PROPERTY MORTGAGEE...........................................................................16
1.82 REAL PROPERTY................................................................................16
1.83 RENT.........................................................................................16
1.84 RETAINED BUILDINGS...........................................................................16
1.85 XXXX.........................................................................................16
1.86 SEC..........................................................................................16
1.87 STATE........................................................................................16
1.88 SUBORDINATED CREDITOR........................................................................16
1.89 SUBORDINATION AGREEMENT......................................................................16
1.90 SUBSIDIARY...................................................................................16
1.91 SUBTENANT....................................................................................17
1.92 SUCCESSOR LANDLORD...........................................................................17
1.93 SUPERIOR LANDLORD............................................................................17
1.94 SUPERIOR LEASE...............................................................................17
ii
1.95 SUPERIOR MORTGAGE............................................................................17
1.96 SUPERIOR MORTGAGEE...........................................................................17
1.97 TA FRANCHISE AGREEMENT.......................................................................17
1.98 TCA..........................................................................................17
1.99 TENANT.......................................................................................17
1.100 TENANT'S PERSONAL PROPERTY...................................................................17
1.101 TERM.........................................................................................18
1.102 TRANSFERRED TRADEMARKS.......................................................................18
1.103 TRAVEL CENTER................................................................................18
1.104 UNSUITABLE FOR ITS PERMITTED USE.............................................................18
1.105 WORK.........................................................................................18
ARTICLE 2 LEASED PROPERTY AND TERM.......................................................................18
2.1 LEASED PROPERTY..............................................................................18
2.2 CONDITION OF LEASED PROPERTY.................................................................20
2.3 TERM.........................................................................................20
ARTICLE 3 RENT...........................................................................................21
3.1 RENT.........................................................................................21
3.2 LATE PAYMENT OF RENT, ETC....................................................................26
3.3 NET LEASE, ETC...............................................................................27
3.4 NO TERMINATION, ABATEMENT, ETC...............................................................27
ARTICLE 4 USE OF THE LEASED PROPERTY.....................................................................28
4.1 PERMITTED USE................................................................................28
4.2 COMPLIANCE WITH LEGAL/INSURANCE REQUIREMENTS, ETC............................................30
4.3 ENVIRONMENTAL MATTERS........................................................................31
4.4 GROUND LEASES................................................................................32
ARTICLE 5 MAINTENANCE AND REPAIRS........................................................................33
5.1 MAINTENANCE AND REPAIR.......................................................................33
5.2 TENANT'S PERSONAL PROPERTY...................................................................36
5.3 YIELD UP.....................................................................................36
5.4 MANAGEMENT AND FRANCHISE AGREEMENTS..........................................................38
ARTICLE 6 IMPROVEMENTS, ETC..............................................................................38
6.1 IMPROVEMENTS TO THE LEASED PROPERTY..........................................................38
6.2 SALVAGE......................................................................................39
ARTICLE 7 LIENS..........................................................................................39
ARTICLE 8 PERMITTED CONTESTS.............................................................................40
ARTICLE 9 INSURANCE AND INDEMNIFICATION..................................................................41
9.1 GENERAL INSURANCE REQUIREMENTS...............................................................41
9.2 WAIVER OF SUBROGATION........................................................................41
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9.3 FORM SATISFACTORY, ETC.......................................................................42
9.4 NO SEPARATE INSURANCE; SELF-INSURANCE........................................................42
9.5 INDEMNIFICATION OF LANDLORD..................................................................43
ARTICLE 10 CASUALTY.......................................................................................44
10.1 INSURANCE PROCEEDS...........................................................................44
10.2 DAMAGE OR DESTRUCTION........................................................................44
10.3 DAMAGE NEAR END OF TERM......................................................................47
10.4 TENANT'S PERSONAL PROPERTY...................................................................47
10.5 RESTORATION OF TENANT'S PERSONAL PROPERTY....................................................47
10.6 NO ABATEMENT OF RENT.........................................................................47
10.7 WAIVER.......................................................................................48
ARTICLE 11 CONDEMNATION...................................................................................48
11.1 TOTAL CONDEMNATION, ETC......................................................................48
11.2 PARTIAL CONDEMNATION.........................................................................48
11.3 ABATEMENT OF RENT............................................................................49
11.4 TEMPORARY CONDEMNATION.......................................................................50
11.5 ALLOCATION OF AWARD..........................................................................50
ARTICLE 12 DEFAULTS AND REMEDIES..........................................................................50
12.1 EVENTS OF DEFAULT............................................................................50
12.2 REMEDIES.....................................................................................53
12.3 TENANT'S WAIVER..............................................................................55
12.4 APPLICATION OF FUNDS.........................................................................55
12.5 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT....................................................55
ARTICLE 13 HOLDING OVER...................................................................................55
ARTICLE 14 LANDLORD DEFAULT...............................................................................56
ARTICLE 15 PURCHASE OF TENANT'S PERSONAL PROPERTY.........................................................57
ARTICLE 16 SUBLETTING AND ASSIGNMENT......................................................................57
16.1 SUBLETTING AND ASSIGNMENT....................................................................57
16.2 REQUIRED SUBLEASE PROVISIONS.................................................................59
16.3 PERMITTED SUBLEASE...........................................................................60
16.4 SUBLEASE LIMITATION..........................................................................61
ARTICLE 17 ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.................................................61
17.1 ESTOPPEL CERTIFICATES........................................................................61
17.2 FINANCIAL STATEMENTS.........................................................................62
ARTICLE 18 LANDLORD'S RIGHT TO INSPECT, QUALITY CONTROL, USE OF TRANSFERRED TRADEMARKS AND ENFORCEMENT....63
18.1 INSPECTION...................................................................................63
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18.2 QUALITY CONTROL..............................................................................63
18.3 TRANSFERRED TRADEMARKS, REGISTRATION AND MAINTENANCE.........................................63
18.4 ENFORCEMENT..................................................................................63
ARTICLE 19 EASEMENTS......................................................................................63
19.1 GRANT OF EASEMENTS...........................................................................63
19.2 EXERCISE OF RIGHTS BY TENANT.................................................................64
19.3 PERMITTED ENCUMBRANCES.......................................................................64
ARTICLE 20 PROPERTY MORTGAGES.............................................................................64
20.1 LANDLORD MAY GRANT LIENS.....................................................................64
20.2 SUBORDINATION OF LEASE.......................................................................65
20.3 NOTICE TO MORTGAGEE AND SUPERIOR LANDLORD....................................................67
ARTICLE 21 ADDITIONAL COVENANTS OF LANDLORD AND TENANT....................................................67
21.1 PROMPT PAYMENT OF INDEBTEDNESS...............................................................67
21.2 CONDUCT OF BUSINESS..........................................................................67
21.3 MAINTENANCE OF ACCOUNTS AND RECORDS..........................................................68
21.4 NOTICE OF LITIGATION, ETC....................................................................68
21.5 INDEBTEDNESS OF TENANT.......................................................................68
21.6 DISTRIBUTIONS, PAYMENTS TO AFFILIATED PERSONS, ETC...........................................69
21.7 PROHIBITED TRANSACTIONS......................................................................69
21.8 LIENS AND ENCUMBRANCES.......................................................................70
21.9 MERGER; SALE OF ASSETS; ETC..................................................................70
21.10 BANKRUPTCY REMOTE ENTITIES...................................................................71
21.11 TRADE AREA RESTRICTION.......................................................................71
ARTICLE 22 ARBITRATION....................................................................................71
ARTICLE 23 MISCELLANEOUS..................................................................................72
23.1 LIMITATION ON PAYMENT OF RENT................................................................72
23.2 NO WAIVER....................................................................................73
23.3 REMEDIES CUMULATIVE..........................................................................73
23.4 SEVERABILITY.................................................................................73
23.5 ACCEPTANCE OF SURRENDER......................................................................73
23.6 NO MERGER OF TITLE...........................................................................74
23.7 CONVEYANCE BY LANDLORD.......................................................................74
23.8 QUIET ENJOYMENT..............................................................................74
23.9 NO RECORDATION...............................................................................75
23.10 NOTICES......................................................................................75
23.11 CONSTRUCTION.................................................................................76
23.12 COUNTERPARTS; HEADINGS.......................................................................76
23.13 APPLICABLE LAW, ETC..........................................................................76
23.14 RIGHT TO MAKE AGREEMENT......................................................................77
23.15 ATTORNEYS' FEES..............................................................................77
23.16 NONLIABILITY OF TRUSTEES.....................................................................78
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