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Exhibit 10.54
LEASE
THIS LEASE (this "Lease") is made as of __________________________,
1998 (the "Effective Date"), by and between FFCA ACQUISITION CORPORATION, a
Delaware corporation ("Lessor"), whose address is 00000 Xxxxx Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, and ROADHOUSE GRILL, INC., a Florida corporation
("Lessee"), whose address is 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000.
W I T N E S S E T H :
THAT, in consideration of the mutual covenants and agreements herein
contained, Lessor and Lessee hereby covenant and agree as follows:
1. CERTAIN DEFINED TERMS. The following terms shall have the following
meanings for all purposes of this Lease:
"ADDITIONAL RENT" has the meaning set forth in Section 4.D.
"ADJUSTMENT DATE" means the second anniversary of the Final
Disbursement Date, and every second anniversary thereafter during the Lease
Term (including the extension period if Lessee exercises its option pursuant to
Section 28).
"ADJUSTABLE RATE" means an annual interest rate equal to the sum of
the Adjustable Rate Basis plus the Applicable Margin, which Adjustable Rate
shall at no time be greater than 15.16% per annum or less than 7.16% per annum.
"ADJUSTABLE RATE BASIS" means, for any Interim Rental Period, the
annual interest rate (rounded upwards, if necessary, to the nearest 1/100th of
one percent) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in dollars at approximately 11:00
a.m. (London time) on the Adjustable Rate Reset Date for a term comparable to
such Interim Rental Period. If, for any reason, such rate is not available, the
term "Adjustable Rate Basis" shall mean, for any Interim Rental Period, the
annual interest rate (rounded upwards, if necessary, to the nearest 1/100th of
one percent) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in dollars at approximately 11:00 a.m. (London time)
on the Adjustable Rate Reset Date for a term comparable to such Interim Rental
Period; provided, however, if more than one rate is specified on the Reuters
Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates.
"ADJUSTABLE RATE RESET DATE" means the fifteenth day of each calendar
month, or the next succeeding Business Day if such day is not a Business Day,
prior to the next Interim Rental Period.
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"AFFILIATE" means any person or entity which directly or indirectly
controls, is under common control with, or controlled by any other person or
entity. For purposes of this definition "controls", "under common control with"
and "controlled by" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such person
or entity, whether through the ownership of voting securities or otherwise.
"APPLICABLE MARGIN" means an annual percentage equal to 3.50%.
"BASE ANNUAL RENTAL" means an amount equal to the product of (i) the
United States Treasury Rate plus the Applicable Margin, and (ii) Lessor's Total
Investment, as such Base Annual Rental shall be increased from time to time as
contemplated by Section 4.
"BASE MONTHLY RENTAL" means an amount equal to 1/12 of the applicable
Base Annual Rental.
"BUSINESS DAY" means a day on which banks located in Phoenix, Arizona
are not required or authorized to remain closed.
"CLOSING DATE" has the meaning set forth in the Sale-Leaseback
Agreement.
"CODE" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101, ET
SEQ., as amended.
"COMPLETION DATE" means the date of the opening of the Premises as a
Franchisor Restaurant.
"DE MINIMIS AMOUNTS" means, with respect to any given level of
Hazardous Materials or USTs, that level or quantity of Hazardous Materials or
USTs in any form or combination of forms which does not constitute a violation
of any Environmental Laws and is customarily employed in, or associated with,
similar businesses located in the state in which the Premises is located.
"DEFAULT RATE" means 18% per annum or the highest rate permitted by
law, whichever is less.
"DEVELOPMENT DOCUMENTS" has the meaning set forth in the Disbursement
Agreement.
"DEVELOPMENT PRICE" has the meaning set forth in the Disbursement
Agreement.
"DISBURSEMENT AGREEMENT" means that certain Disbursement Agreement of
even date herewith among Lessor, Lessee and Lawyers Title Insurance
Corporation, a Virginia corporation, as the same may be amended from time to
time.
"DISBURSEMENT DATE" means the date of a Disbursement.
"DISBURSEMENTS" has the meaning set forth in the Disbursement
Agreement.
"ENVIRONMENTAL INSURER" means such environmental insurance company as
Lessor shall select in its sole discretion.
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"ENVIRONMENTAL LAWS" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law, relating to Hazardous Materials, Regulated Substances or USTs
and/or the protection of human health or the environment by reason of a Release
or a Threatened Release of Hazardous Materials, Regulated Substances or USTs or
relating to liability for or costs of Remediation or prevention of Releases.
"Environmental Laws" includes, but is not limited to, the following statutes,
as amended, any successor thereto, and any regulations promulgated pursuant
thereto, and any state or local statutes, ordinances, rules, regulations and
the like addressing similar issues: the Comprehensive Environmental Response,
Compensation and Liability Act; the Emergency Planning and Community
Right-to-Know Act; the Hazardous Materials Transportation Act; the Resource
Conservation and Recovery Act (including but not limited to Subtitle I relating
to USTs); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act;
the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational
Safety and Health Act; the Federal Water Pollution Control Act; the Federal
Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the
National Environmental Policy Act; and the River and Harbors Appropriation Act.
"Environmental Laws" also includes, but is not limited to, any present and
future federal, state and local laws, statutes, ordinances, rules, regulations
and the like, as well as common law: conditioning transfer of property upon a
negative declaration or other approval of a Governmental Authority of the
environmental condition of the property; requiring notification or disclosure
of Releases or other environmental condition of the Premises to any
Governmental Authority or other person or entity, whether or not in connection
with transfer of title to or interest in property; imposing conditions or
requirements relating to Hazardous Materials, Regulated Substances or USTs in
connection with permits or other authorization for lawful activity; relating to
nuisance, trespass or other causes of action related to Hazardous Materials,
Regulated Substances or USTs; and relating to wrongful death, personal injury,
or property or other damage in connection with the physical condition or use of
the Premises by reason of the presence of Hazardous Materials, Regulated
Substances or USTs in, on, under or above the Premises.
"ENVIRONMENTAL POLICY" means that certain environmental insurance
policy issued by Environmental Insurer to Lessor with respect to the Premises,
which Environmental Policy shall be in form and substance satisfactory to
Lessor in its sole discretion.
"EVENT OF DEFAULT" has the meaning set forth in Section 24.
"FINAL DISBURSEMENT" has the meaning set forth in the Disbursement
Agreement.
"FINAL DISBURSEMENT DATE" means the date of the payment of the Final
Disbursement as provided in the Disbursement Agreement.
"FIRST AMENDMENT" means that certain First Amendment to Lease in the
form attached hereto as EXHIBIT B, to be executed by Lessor and Lessee as of
date of the Final Disbursement.
"FIRST DISBURSEMENT DATE" means the date of the payment of the First
Disbursement (as defined in the Disbursement Agreement) as provided in the
Disbursement Agreement.
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"FIRST INTERIM BASE RENTAL" means an amount equal to (i) the product
of (x) the Adjustable Rate and (y) the sum of the Purchase Price and, in the
event the Soft Costs Disbursement is made on the Closing Date, the amount of
the Soft Costs Disbursement, multiplied by (ii) a fraction, the numerator of
which is the actual number of days between the Effective Date and the First
Disbursement Date and the denominator of which is 365; provided, however, if
the Soft Costs Disbursement, if any, is made subsequent to the Closing Date,
the First Interim Base Rental amount shall equal the sum of (i) the product of
(x) the Adjustable Rate and (y) the Purchase Price multiplied by a fraction,
the numerator of which is the actual number of days between the Effective Date
and the First Disbursement Date and the denominator of which is 365, and (ii)
the product of (x) the Adjustable Rate and (y) the amount of the Soft Costs
Disbursement multiplied by a fraction, the numerator of which is the actual
number of days between the Soft Costs Disbursement Date and the First
Disbursement Date and the denominator of which is 365. The First Interim Base
Rental payment shall constitute base rent for the period commencing on the
Effective Date and ending on the date prior to the First Disbursement Date.
"FRANCHISE FINANCE" means Franchise Finance Corporation of America, a
Delaware corporation, and its successors.
"FRANCHISE Rights" has the meaning described in Section 6.E.
"FRANCHISOR RESTAURANT" means a Roadhouse Grill restaurant.
"GOVERNMENTAL AUTHORITY" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the state in which the
Premises are located or any political subdivision thereof.
"HAZARDOUS MATERIALS" means (i) any toxic substance or hazardous
waste, substance, solid waste or related material, or any pollutant or
contaminant; (ii) radon gas, asbestos in any form which is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
which contains dielectric fluid containing levels of polychlorinated biphenyls
in excess of federal, state or local safety guidelines, whichever are more
stringent, or any petroleum product; (iii) any substance, gas, material or
chemical which is or may be defined as or included in the definition of
"hazardous substances," "toxic substances," "hazardous materials," hazardous
wastes" or words of similar import under any Environmental Laws; and (iv) any
other chemical, material, gas or substance the exposure to or release of which
is or may be prohibited, limited or regulated by any Governmental Authority
that asserts or may assert jurisdiction over the Premises or the operations or
activity at the Premises, or any chemical, material, gas or substance that does
or may pose a hazard to the health and/or safety of the occupants of the
Premises or the owners and/or occupants of property adjacent to or surrounding
the Premises.
"IMPROVEMENTS" means the improvements and fixtures to be constructed
upon the Property as contemplated by the Disbursement Agreement (but excluding
trade fixtures), which Improvements shall at all times be owned by Lessor.
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"INDEMNIFIED PARTIES" means Lessor, Environmental Insurers and the
directors, officers, shareholders, partners, members, employees, lenders,
agents, servants, representatives, contractors, subcontractors, affiliates,
subsidiaries, participants, successors and assigns of Lessor and including, but
not limited to, any successors by merger, consolidation or acquisition of all
or a substantial portion of Lessor's assets and business and Environmental
Insurer.
"INTERIM BASE RENTAL" means, with respect to each Interim
Disbursement, an amount equal to (i) the product of (x) the Adjustable Rate and
(y) the sum of the Purchase Price and that portion of the Development Price
disbursed as of the Disbursement Date immediately prior to the Disbursement
Date of such Interim Disbursement, multiplied by (ii) a fraction, the numerator
of which is the actual number of days between the Disbursement Date immediately
prior to the Disbursement Date of such Interim Disbursement and the
Disbursement Date of such Interim Disbursement and the denominator of which is
365. Such Interim Base Rental amount shall constitute base rent for the period
commencing on the Disbursement Date immediately prior to the Disbursement Date
of such Interim Disbursement and ending on the date prior to the Disbursement
Date of such Interim Disbursement.
"INTERIM DISBURSEMENT" has the meaning set forth in the Disbursement
Agreement.
"INTERIM RENTAL PERIOD" means (i) initially, the period beginning on
the Effective Date and ending on the last day of the calendar month in which
such date occurs, and (ii) thereafter, the period beginning on the first day of
the calendar month and ending on the last day of such calendar month.
"INTERIM TERM" means the period described in Section 3.
"INTERIM TERM RENTAL" means the rent accruing during the Interim Term
described in Section 4.A.
"LAND" means the parcel or parcels of real estate legally described in
EXHIBIT A attached hereto, and all rights, privileges and appurtenances
therewith.
"LEASE TERM" has the meaning described in Section 3.
"LEASE YEAR" means the 12-month period commencing on the first day of
the year or any other 12-month period as may be approved in writing by Lessor
after the commencement of the Lease Term and each successive 12-month period
thereafter.
"LESSEE ENTITIES" means, collectively, Lessee and any Affiliate of
Lessee.
"LESSOR ENTITIES" means, collectively, Lessor, Franchise Finance and
any Affiliate of Lessor or Franchise Finance.
"LESSOR'S TOTAL INVESTMENT" means the sum of the Purchase Price and
the aggregate amount of all Disbursements, including Interim Term Rental, made
pursuant to the Disbursement Agreement.
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"LOSSES" means any and all claims, suits, liabilities (including,
without limitation, strict liabilities), actions, proceedings, obligations,
debts, damages, losses, costs, expenses, diminutions in value, fines,
penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement and damages of whatever kind or nature (including, without
limitation, attorneys' fees and other costs of defense).
"OTHER AGREEMENTS" means, collectively, all agreements and instruments
now or hereafter entered into between, among or by (1) any of the Lessee
Entities, and, or for the benefit of, (2) any of the Lessor Entities,
including, without limitation, leases, promissory notes and guaranties but
excluding this Lease, the Disbursement Agreement and all other agreements
executed pursuant to the Sale-Leaseback Agreement.
"PREMISES" means, collectively, the Land and the Improvements.
"PURCHASE PRICE" has the meaning set forth in the Sale-Leaseback
Agreement.
"QUESTIONNAIRE" means that certain environmental questionnaire
completed by Lessee and submitted to Environmental Insurer in connection with
the issuance of the Environmental Policy.
"REGULATED SUBSTANCES" means "petroleum" and "petroleum-based
substances" or any similar terms described or defined in any of the
Environmental Laws and any applicable federal, state, county or local laws
applicable to or regulating USTs.
"RELEASE" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying,
escaping, dumping, disposing or other movement of Hazardous Materials,
Regulated Substances or USTs.
"REMEDIATION" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Material, Regulated Substances or USTs, any actions to
prevent, cure or mitigate any Release, any action to comply with any
Environmental Laws or with any permits issued pursuant thereto, any inspection,
investigation, study, monitoring, assessment, audit, sampling and testing,
laboratory or other analysis, or any evaluation relating to any Hazardous
Materials, Regulated Substances or USTs.
"SALE-LEASEBACK AGREEMENT" means that certain Build-to-Suit
Sale-Leaseback Agreement dated as of the date hereof between Lessor and Lessee
with respect to the Premises.
"SOFT COSTS DISBURSEMENT" has the meaning set forth in the
Disbursement Agreement.
"SOFT COSTS DISBURSEMENT DATE" means the date of the payment of the
Soft Costs Disbursement as provided in the Disbursement Agreement.
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"SUBSTANTIAL COMPLETION DISBURSEMENT" has the meaning set forth in the
Disbursement Agreement.
"SUBSTANTIAL COMPLETION INTERIM BASE RENTAL" means an amount equal to
(i) the product of (x) the Adjustable Rate and (y) the sum of the Purchase
Price and that portion of the Development Price disbursed as of the
Disbursement Date of the Interim Disbursement immediately prior to the
Substantial Completion Disbursement, multiplied by (ii) a fraction, the
numerator of which is the actual number of days between the Disbursement Date
of the Interim Disbursement immediately prior to the Substantial Completion
Disbursement and the Completion Date and the denominator of which is 365. The
Substantial Completion Interim Base Rental payment shall constitute base rent
for the period commencing on the Disbursement Date of the Interim Disbursement
immediately prior to the Substantial Completion Disbursement and ending on the
date prior to the Completion Date.
"THREATENED RELEASE" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the soil, surface waters,
groundwaters, land, stream sediments, surface or subsurface strata, ambient air
or any other environmental medium comprising or surrounding the Premises which
may result from such Release.
"UNITED STATES TREASURY RATE" means the 10-year U.S. Treasury Rate in
effect as reported in the Western Edition of The Wall Street Journal on the
tenth calendar day preceding the Final Disbursement Date. In the event The Wall
Street Journal ceases to publish such Treasury information, Lessor shall select
an alternative publication which publishes comparable information most nearly
approximating such information.
"USTS" means any one or combination of tanks and associated product
piping systems used in connection with storage, dispensing and general use of
Regulated Substances.
2. DEMISE OF PREMISES. In consideration of the rentals and other sums
to be paid by Lessee and of the other terms, covenants and conditions on
Lessee's part to be kept and performed, Lessor hereby leases to Lessee, and
Lessee hereby takes and hires, the Premises.
3. INTERIM TERM; LEASE TERM. A. The Interim Term shall commence as of
the Effective Date and shall expire on the date immediately preceding the
Completion Date.
B. The Lease Term shall commence on the Completion Date and shall
expire on the fourteenth anniversary thereof, unless terminated sooner as
provided in this Lease and as may be extended for two periods of five years
each as set forth in Section 28 below. The time period subsequent to the
Interim Term during which this Lease shall actually be in effect is referred to
herein as the "Lease Term."
4. RENTAL AND OTHER PAYMENTS. A. The First Interim Base Rental shall
accrue as of the First Disbursement Date, Interim Base Rental shall accrue as
of the Disbursement Date of the applicable Interim Disbursement, and the
Substantial Completion Interim Base Rental shall accrue
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as of the Completion Date. The Interim Term Rental shall not be paid by Lessee,
but shall be capitalized in the Base Annual Rental as of the date of accrual.
B. On or immediately prior to the Final Disbursement Date, Lessor and
Lessee shall execute the First Amendment which will set forth, among other
things, Lessor's Total Investment and the Base Annual Rental. Effective as of
the Completion Date, Lessee shall be obligated to pay Base Annual Rental in the
amount as set forth in the First Amendment. On the Final Disbursement Date,
Lessee shall pay Lessor Base Annual Rental prorated on the basis of the ratio
that the number of days from the Completion Date through the last day in the
month containing the Final Disbursement Date bears to the number of days in
such month. Thereafter, on or before the first day of each succeeding calendar
month, Lessee shall pay Lessor in advance the Base Monthly Rental.
C. Commencing on the first Adjustment Date and on each Adjustment Date
thereafter, the Base Annual Rental shall increase by an amount equal to four
percent (4%), which increases shall be compounded. On each Adjustment Date, the
Base Annual Rental then in effect shall be multiplied by 104%, with the
resulting product constituting the Base Annual Rental due and payable under
this Lease until the next Adjustment Date.
D. All sums of money required to be paid by Lessee under this Lease
which are not specifically referred to as rent ("Additional Rent") shall be
considered rent although not specifically designated as such. Lessor shall have
the same remedies for nonpayment of Additional Rent as those provided herein
for the nonpayment of Base Annual Rental.
5. REPRESENTATIONS AND WARRANTIES OF LESSOR. The representations and
warranties of Lessor contained in this Section are being made to induce Lessee
to enter into this Lease and Lessee has relied and will continue to rely upon
such representations and warranties. Lessor represents and warrants to Lessee
as follows:
A. ORGANIZATION AND STATUS OF LESSOR. (i) Lessor has been
duly organized and is validly existing and in good standing under the
laws of the State of Delaware. All necessary corporate action has been
taken to authorize the execution, delivery and performance by Lessor
of this Lease and the other documents, instruments and agreements
provided for herein.
B. AUTHORITY OF LESSOR. The person who has executed this
Lease on behalf of Lessor is duly authorized so to do.
C. ENFORCEABILITY. This Lease constitutes the legal, valid
and binding obligation of Lessor, enforceable against Lessor in
accordance with its terms.
6. REPRESENTATIONS AND WARRANTIES OF LESSEE. The representations and
warranties of Lessee contained in this Section are being made to induce Lessor
to enter into this Lease and Lessor has relied, and will continue to rely, upon
such representations and warranties. Lessee represents and warrants to Lessor
as follows:
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A. ORGANIZATION, AUTHORITY AND STATUS OF LESSEE. (i) Lessee
has been duly incorporated, is validly existing and in good standing
under the laws of its state of incorporation and is qualified as a
foreign corporation to do business in any jurisdiction where such
qualification is required. All necessary corporate action has been
taken to authorize the execution, delivery and performance by Lessee
of this Lease and of the other documents, instruments and agreements
provided for herein. Lessee is not a "foreign corporation", "foreign
partnership", "foreign trust" or "foreign estate", as those terms are
defined in the Internal Revenue Code and the regulations promulgated
thereunder. Lessee's United States tax identification number is
correctly set forth on the signature page of this Lease.
(ii) The persons who have executed this Lease on behalf of
Lessee are duly authorized to do so.
B. ENFORCEABILITY. This Lease constitutes the legal, valid
and binding obligation of Lessee, enforceable against Lessee in
accordance with its terms.
C. LITIGATION. There are no suits, actions, proceedings or
investigations pending, or to the best of its knowledge, threatened
against or involving Lessee or the Premises before any arbitrator or
Governmental Authority which might reasonably result in any material
adverse change in the contemplated business, condition, worth or
operations of Lessee or the Premises.
D. ABSENCE OF BREACHES OR DEFAULTS. Lessee is not in default
under any other document, instrument or agreement to which Lessee is a
party or by which Lessee, the Premises or any of the property of
Lessee is subject or bound. The authorization, execution, delivery and
performance of this Lease and the documents, instruments and
agreements provided for herein will not result in any breach of or
default under any other document, instrument or agreement to which
Lessee is a party or by which Lessee, the Premises or any of the
property of Lessee is subject or bound.
E. FRANCHISE RIGHTS. Lessee owns all of the rights and
privileges relative to the franchise rights associated with Roadhouse
Grill restaurants, including, without limitation, any and all trade
secrets, tradenames and trademarks relative thereto (collectively, the
"Franchise Rights"), free and clear of any and all rights, liens,
interests, claims, and encumbrances, except for the rights and
privileges granted to Lessee's approved franchisees. Lessee has the
right to operate the Premises as a Roadhouse Grill restaurant during
the Lease Term.
F. LICENSES AND PERMITS. Lessee has obtained or will obtain
prior to the Completion Date all required licenses and permits, both
governmental and private, to use and operate the Premises in the
intended manner.
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G. FINANCIAL CONDITION; INFORMATION PROVIDED TO LESSOR. The
financial statements, all financial data and all other documents and
information heretofore delivered to Lessor by or with respect to
Lessee and/or the Premises in connection with this Lease and/or
relating to Lessee and/or the Premises are true, correct and complete
in all material respects, and there have been no amendments to such
financial statements, financial data and other documents and
information since the date such financial statements, financial data,
documents and other information were prepared or delivered to Lessor,
and no material adverse change has occurred to any such financial
statements, financial data, documents and other information not
disclosed in writing to Lessor.
H. TRUE LEASE. Lessee intends for this Lease to be a "true
lease" and not a financing lease, capital lease, mortgage, equitable
mortgage, deed of trust, trust agreement, security agreement or other
financing or trust arrangement, and the economic realities of this
Lease are those of a true lease. The term of this Lease, including any
term extensions provided for in this Lease, is less than the remaining
economic life of the Premises. The option to purchase provided for in
this Lease may be exercised only by Lessee paying the greater of the
fair market value of the Premises (as determined pursuant to Section
23) and Lessor's Total Investment, which payment amount will not be
nominal. Lessee waives any claim or defense based upon the
characterization of this Lease as anything other than a true lease and
Lessee stipulates and agrees not to challenge the validity,
enforceability or characterization of the lease of the Premises as a
true lease and further stipulates and agrees that nothing contained in
this Lease creates or is intended to create a joint venture,
partnership, equitable mortgage, trust, financing device or
arrangement, security interest or the like. Lessee shall support the
intent of the parties that the lease of the Premises pursuant to this
Lease is a true lease and does not create a joint venture,
partnership, equitable mortgage, trust, financing device or
arrangement, security interest or the like, if, and to the extent
that, any challenge occurs.
7. RENTALS TO BE NET TO LESSOR. The Interim Term Rental and the Base
Annual Rental payable hereunder shall be net to Lessor, so that this Lease
shall yield to Lessor the rentals specified during the Interim Term and the
Lease Term and that all costs, expenses and obligations of every kind and
nature whatsoever relating to the Premises shall be performed and paid by
Lessee.
8. [Intentionally left blank.]
9. TAXES AND ASSESSMENTS. Lessee shall pay, prior to the earlier of
delinquency or the accrual of interest on the unpaid balance, all taxes and
assessments of every type or nature assessed against or imposed upon the
Premises during the Interim Term and the Lease Term which affect in any manner
the net return realized by Lessor under this Lease, including, without
limitation, the following:
A. All taxes and assessments upon the Premises or any part
thereof or and any personal property, trade fixtures or and
improvements located on the Premises, whether belonging to Lessor or
Lessee, or any tax or charge levied in lieu of such taxes and
assessments;
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B. All taxes, charges, license fees and or similar fees
imposed by reason of the use of the Premises by Lessee; and
C. All excise, transaction, privilege, license, sales, use
and other taxes upon the rental or other payments hereunder, the
leasehold estate of either party or the activities of either party
pursuant to this Lease.
All taxing authorities shall be instructed to send all tax and
assessment invoices to Lessor. After recording the information on such
invoices, Lessor shall forward such invoices to Lessee for payment. Within 30
days after each tax and assessment payment is required by this Section to be
paid, Lessee shall provide Lessor with evidence satisfactory to Lessor that
such payment was made in a timely fashion. Lessee may, at its own expense,
contest or cause to be contested (in the case of any item involving more than
$1000.00, after prior written notice to Lessor), by appropriate legal
proceedings conducted in good faith and with due diligence, the amount or
validity or application, in whole or in part, of any item specified in
subsection A. or lien therefor, provided that (i) such proceeding shall suspend
the collection thereof from the Premises or any interest therein, (ii) neither
the Premises nor any interest therein would be in any danger of being sold,
forfeited or lost by reason of such proceedings, (iii) no Event of Default has
occurred, and (iv) Lessee shall have deposited with Lessor adequate reserves
for the payment of the taxes, together with all interest and penalties thereon,
unless paid in full under protest or Lessee shall have furnished the security
as may be required in the proceeding or as may be required by Lessor to insure
payment of any contested taxes.
10. UTILITIES. Lessee shall contract, in its own name, for and pay
when due all charges for the connection and use of water, gas, electricity,
telephone, garbage collection, sewer use and other utility services supplied to
the Premises during the Interim Term and the Lease Term. Under no circumstances
shall Lessor be responsible for any interruption of any utility service.
11. INSURANCE. Throughout the Interim Term and the Lease Term, and in
addition to the insurance requirements set forth in the Disbursement Agreement,
Lessee shall maintain with respect to the Premises, at its sole expense, the
following types and amounts of insurance (which may be included under a blanket
insurance policy if all the other terms hereof are satisfied), in addition to
such other insurance as Lessor may reasonably require from time to time:
A. Insurance against loss, damage or destruction by fire and
other casualty, including theft, vandalism and malicious mischief,
flood (if the Premises are in a location designated by the Federal
Secretary of Housing and Urban Development as a flood hazard area),
earthquake (if the Premises are in an area subject to destructive
earthquakes within recorded history), boiler explosion (if there is
any boiler upon the Premises), plate glass breakage, sprinkler damage
(if the Premises have a sprinkler system), all matters covered by a
standard extended coverage endorsement, special coverage endorsement
commonly known as an "all risk" endorsement and such other risks as
Lessor may reasonably require, insuring the Premises for not less than
100% of their full insurable replacement cost.
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B. Comprehensive general liability and property damage
insurance, including a products liability clause, covering Lessor,
Franchise Finance and Lessee against bodily injury liability, property
damage liability and automobile bodily injury and property damage
liability, including without limitation any liability arising out of
the ownership, maintenance, repair, condition or operation of the
Premises or adjoining ways, streets or sidewalks and, if applicable,
insurance covering Lessor and Franchise Finance against liability
arising from the sale of liquor, beer or wine on the Premises. Such
insurance policy or policies shall contain a broad form contractual
liability endorsement under which the insurer agrees to insure
Lessee's obligations under Section 18 hereof to the extent insurable,
and a "severability of interest" clause or endorsement which precludes
the insurer from denying the claim of either Lessee, Lessor or
Franchise Finance because of the negligence or other acts of the
other, shall be in amounts of not less than $1,000,000.00 per injury
and occurrence with respect to any insured liability, whether for
personal injury or property damage, or such higher limits as Lessor
may reasonably require from time to time, and shall be of form and
substance satisfactory to Lessor. During the Interim Term such
insurance policy shall also contain a vacant land endorsement.
C. Business income insurance equal to 100% of the Base Annual
Rental for a period of not less than six months.
D. State Worker's compensation insurance in the statutorily
mandated limits, employer's liability insurance with limits not less
than $500,000 or such greater amount as Lessor may from time to time
require and such other insurance as may be necessary to comply with
applicable laws.
All insurance policies (including those required by the
Disbursement Agreement) shall:
(i) Provide for a waiver of subrogation by the
insurer as to claims against Lessor or Franchise Finance,
their employees and agents and provide that such insurance
cannot be unreasonably cancelled, invalidated or suspended on
account of the conduct of Lessee, its officers, directors,
employees or agents;
(ii) Provide that any "no other insurance" clause in
the insurance policy shall exclude any policies of insurance
maintained by Lessor or Franchise Finance and that the
insurance policy shall not be brought into contribution with
insurance maintained by Lessor or Franchise Finance;
(iii) Contain a standard without contribution
mortgage clause endorsement in favor of any lender designated
by Lessor;
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(iv) Provide that the policy of insurance shall not
be terminated, cancelled or substantially modified without at
least thirty (30) days' prior written notice to Lessor,
Franchise Finance and to any lender covered by any standard
mortgage clause endorsement;
(v) Provide that the insurer shall not have the
option to restore the Premises if Lessor elects to terminate
this Lease in accordance with the terms hereof;
(vi) Be issued by insurance companies licensed to do
business in the state in which the Premises is located and
which are rated A:VI or better by Best's Insurance Guide or
otherwise approved by Lessor; and
(vii) Provide that the insurer shall not deny a
claim because of the negligence of Lessee, anyone acting for
Lessee or any tenant or other occupant of the Premises.
It is expressly understood and agreed that the foregoing
minimum limits of insurance coverage shall not limit the liability of
Lessee for its acts or omissions as provided in this Lease. All
insurance policies (with the exception of worker's compensation
insurance to the extent not available under statutory law), including
those required by the Disbursement Agreement, shall designate Lessor,
any mortgagee of Lessor and Franchise Finance as additional insureds
as their interests may appear and shall be payable as set forth in
Section 20 hereof. All such policies shall be written as primary
policies, with deductibles not to exceed 10% of the amount of
coverage. Any other policies, including any policy now or hereafter
carried by Lessor or Franchise Finance, shall serve as excess
coverage. Lessee shall procure policies for all insurance for periods
of not less than one year and shall provide to Lessor and any lender
of Lessor certificates of insurance or, upon Lessor's request,
duplicate originals of insurance policies evidencing that insurance
satisfying the requirements of this Lease is in effect at all times.
12. TAX AND INSURANCE IMPOUND. Upon the occurrence of an Event of
Default, Lessor may require Lessee to pay to Lessor sums which will provide an
impound account (which shall not be deemed a trust fund) for paying up to the
next one year of taxes, assessments and/or insurance premiums. Upon such
requirement, Lessor will estimate the amounts needed for such purposes and will
notify Lessee to pay the same to Lessor in equal monthly installments, as
nearly as practicable, in addition to all other sums due under this Lease.
Should additional funds be required at any time, Lessee shall pay the same to
Lessor on demand. Lessee shall advise Lessor of all taxes and insurance bills
which are due and shall cooperate fully with Lessor in assuring that the same
are paid. Lessor may deposit all impounded funds in accounts insured by any
federal or state agency and may commingle such funds with other funds and
accounts of Lessor. Interest or other gains from such funds, if any, shall be
the sole property of Lessor. In the event of any default by Lessee, Lessor may
apply all impounded funds against any sums due from Lessee to Lessor. Lessor
shall give to Lessee an annual accounting showing all credits and debits to and
from such impounded funds received from Lessee.
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13. PAYMENT OF RENTAL AND OTHER SUMS. All rental and other sums which
Lessee is required to pay hereunder shall be the unconditional obligation of
Lessee and shall be payable in full when due without any setoff, abatement,
deferment, deduction or counterclaim whatsoever. Upon execution of this Lease,
Lessee shall establish arrangements whereby payments of the Base Monthly
Rental, any Additional Rent and impound payments, if any, are transferred by
wire or other means directly from Lessee's bank account to such account as
Lessor may designate. Any delinquent payment (that is, any payment not made
within five calendar days after the date when due) shall, in addition to any
other remedy of Lessor, incur a late charge of 10% (which late charge is
intended to compensate Lessor for the cost of handling and processing such
delinquent payment and should not be considered interest) and bear interest at
the Default Rate, such interest to be computed from and including the date such
payment was due through and including the date of the payment.
14. USE. At all times during the Lease Term, Lessee shall use the
Premises solely for the operation of a Franchisor Restaurant in accordance with
the standards of operations then in effect which are imposed by Lessee on its
franchisees on a system-wide basis and for no other purpose. Lessee shall at
all times during the Lease Term preserve and maintain the Franchise Rights,
free and clear of any and all rights, liens, interests, claims, and
encumbrances, except for the rights and privileges granted to Lessee's approved
franchisees. Except as set forth below, and except during periods when the
Premises are untenantable by reason of fire or other casualty or condemnation
(provided, however, during all such periods while the Premises are
untenantable, Lessee shall strictly comply with the terms and conditions of
this Lease), Lessee shall at all times during the Lease Term occupy the
Premises and shall diligently operate its business on the Premises. Lessee may
cease diligent operation of business at the Premises for a period not to exceed
90 days and may do so only once within any five-year period during the Lease
Term. If Lessee does discontinue operation as permitted by this Section, Lessee
shall (i) give written notice to Lessor within 10 days after Lessee elects to
cease operation, (ii) provide adequate protection and maintenance of the
Premises during any period of vacancy and (iii) pay all costs necessary to
restore the Premises to their condition on the day operation of the business
ceased at such time as the Premises is reopened for Lessee's business
operations or other substituted use approved by Lessor as contemplated below.
Lessee shall not, by itself or through any assignment, sublease or
other type of transfer, convert the Premises to an alternative use during the
Lease Term without Lessor's consent, which consent shall not be unreasonably
withheld. Lessor may consider any or all of the following in determining
whether to grant its consent, without being deemed to be unreasonable: (i)
whether the rental paid to Lessor would be equal to or greater than the
anticipated rental assuming continued existing use, (ii) whether the proposed
rental to be paid to Lessor is reasonable considering the converted use of the
Premises and the customary rental prevailing in the community for such use,
(iii) whether the converted use will be consistent with the highest and best
use of the Premises, and (iv) whether the converted use will increase Lessor's
risks or decrease the value of the Premises.
15. COMPLIANCE WITH LAWS, RESTRICTIONS, COVENANTS AND ENCUMBRANCES. A.
Lessee's use and occupation of the Premises, and the condition thereof, shall,
at Lessee's sole cost and expense, comply fully with (i) all applicable
statutes, regulations, rules, ordinances, codes, licenses,
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permits, orders and approvals of each Governmental Authority having
jurisdiction over the Premises, including, without limitation, all health,
building, fire, safety and other codes, ordinances and requirements and all
applicable standards of the National Board of Fire Underwriters and all
policies or rules of common law, in each case, as amended, and any judicial or
administrative interpretation thereof, including any judicial order, consent,
decree or judgment applicable to Lessee and (ii) all restrictions, covenants
and encumbrances of record with respect to the Premises.
B. Lessee will not permit any act or condition to exist on or about
the Premises which will increase any insurance rate thereon, except when such
acts are required in the normal course of its business and Lessee shall pay for
such increase.
C. Without limiting the generality of the other provisions of this
Section, Lessee agrees that it shall be responsible for complying in all
respects with the Americans with Disabilities Act of 1990, as such act may be
amended from time to time, and all regulations promulgated thereunder
(collectively, the "ADA"), as it affects the Premises, including, but not
limited to, making required "readily achievable" changes to remove any
architectural or communications barriers, and providing auxiliary aides and
services within the Premises. Lessee further agrees that any and all
alterations made to the Premises during the Lease Term will comply with the
requirements of the ADA. All plans for alterations which must be submitted to
Lessor under the provisions of Section 17 must include a statement from a
licensed Architect or Engineer certifying that they have reviewed the plans,
and that the plans comply with all applicable provisions of the ADA. Any
subsequent approval or consent to the plans by the Lessor shall not be deemed
to be a representation of Lessor's part that the plans comply with the ADA,
which obligation shall remain with Lessee. Lessee agrees that it will defend,
indemnify and hold harmless the Indemnified Parties from and against any and
all Losses caused by, incurred or resulting from Lessee's failure to comply
with its obligations under this Section.
D. Lessee represents and warrants to Lessor and Environmental Insurer
as follows:
(i) The Premises and Lessee are not in violation of or
subject to any existing, pending or threatened investigation or
inquiry by any Governmental Authority or to any remedial obligations
under any Environmental Laws, and this representation and warranty
would continue to be true and correct following disclosure to each
Governmental Authority of all relevant facts, conditions and
circumstances, if any, pertaining to the Premises. If any such
investigation or inquiry is subsequently initiated, Lessee will
promptly notify Lessor.
(ii) Lessee has not obtained and is not required to obtain
any permits, licenses or similar authorizations to construct, occupy,
operate or use any buildings, improvements, fixtures and equipment
forming a part of the Premises by reason of any Environmental Laws.
(iii) No Hazardous Materials, Regulated Substances or USTs
have been used, handled, manufactured, generated, produced, stored,
treated, processed transferred, disposed of or otherwise Released in,
on, under, from or about the Premises, except in De Minimis Amounts.
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(iv) The Premises does not contain Hazardous Materials or
USTs other than in De Minimis Amounts and all USTs located on or about
the Premises, if any, are in compliance with all Environmental Laws.
(v) There is no threat of any Release migrating to the
Premises.
(vi) There is no past or present non-compliance with
Environmental Laws, or with permits issued pursuant thereto, in
connection with the Premises.
(vii) Lessee has not received, any written or oral notice or
other communication from any person or entity (including but not
limited to a Governmental Authority) relating to Hazardous Materials,
Regulated Substances or USTs or Remediation thereof, of possible
liability of any person or entity pursuant to any Environmental Law,
other environmental conditions in connection with the Premises, or any
actual or potential administrative or judicial proceedings in
connection with any of the foregoing.
(viii) Lessee has truthfully and fully provided to Lessor, in
writing, any and all information relating to environmental conditions
in, on, under or from the Premises that is known to Lessee and that is
contained in Lessee's files and records, including but not limited to
any reports relating to Hazardous Materials, Regulated Substances or
USTs in, on, under or from the Premises.
E. Lessee covenants to Lessor and Environmental Insurer during the
Lease Term that: (i) all uses and operations on or of the Premises, whether by
Lessee or any other person or entity, shall be in compliance with all
Environmental Laws and permits issued pursuant thereto; (ii) there shall be no
Releases in, on, under or from the Premises, except in De Minimis Amounts;
(iii) there shall be no Hazardous Materials, Regulated Substances or USTs in,
on, or under the Premises, except in De Minimis Amounts; (iv) Lessee shall keep
the Premises free and clear of all liens and other encumbrances imposed
pursuant to any Environmental Law, whether due to any act or omission of Lessee
or any other person or entity (the "Environmental Liens"); (v) Lessee shall, at
its sole cost and expense, fully and expeditiously cooperate in all activities
pursuant to subsection (i) below, including but not limited to providing all
relevant information and making knowledgeable persons available for interviews;
(vi) Lessee shall, at its sole cost and expense, perform any environmental site
assessment or other investigation of environmental conditions in connection
with the Premises as may be reasonably requested by Lessor (including but not
limited to sampling, testing and analysis of soil, water, air, building
materials and other materials and substances whether solid, liquid or gas), and
share with Lessor and Environmental Insurer the reports and other results
thereof, and Lessor, Environmental Insurer and other Indemnified Parties shall
be entitled to rely on such reports and other results thereof; (vii) Lessee
shall, at its sole cost and expense, comply with all reasonable written
requests of Lessor to (1) reasonably effectuate Remediation of any condition
(including but not limited to a Release) in, on, under or from the Premises;
(2) comply with any Environmental Law; (3) comply with any directive from any
Governmental Authority; and (4) take any other reasonable action necessary or
appropriate for protection of human health or the environment; (viii) Lessee
shall not do or allow any tenant or other user of the Premises to do any
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act that materially increases the dangers to human health or the environment,
poses an unreasonable risk of harm to any person or entity (whether on or off
the Premises), impairs or may impair the value of the Premises, is contrary to
any requirement of any insurer, constitutes a public or private nuisance,
constitutes waste, or violates any covenant, condition, agreement or easement
applicable to the Premises; and (ix) Lessee shall immediately notify Lessor in
writing of (A) any presence of Releases or Threatened Releases in, on, under,
from or migrating towards the Premises; (B) any non-compliance with any
Environmental Laws related in any way to the Premises; (C) any actual or
potential Environmental Lien; (D) any required or proposed Remediation of
environmental conditions relating to the Premises; and (E) any written or oral
notice or other communication which Lessee becomes aware from any source
whatsoever (including but not limited to a Governmental Authority) relating in
any way to Hazardous Materials, Regulated Substances or USTs or Remediation
thereof, possible liability of any person or entity pursuant to any
Environmental Law, other environmental conditions in connection with the
Premises, or any actual or potential administrative or judicial proceedings in
connection with anything referred to in this Section.
X. Xxxxxx and any other person or entity designated by Lessor,
including but not limited to Environmental Insurer, any receiver, any
representative of a governmental entity, and any environmental consultant,
shall have the right, but not the obligation, to enter upon the Premises at all
reasonable times (including without limitation, in connection with the exercise
of any remedies set forth in this Lease or the other Development Documents, as
applicable) to assess any and all aspects of the environmental condition of the
Premises and its use, including but not limited to conducting any environmental
assessment or audit (the scope of which shall be determined in Lessor's sole
and absolute discretion) and taking samples of soil, groundwater or other
water, air, or building materials, and conducting other invasive testing.
Lessee shall cooperate with and provide access to Lessor, Environmental Insurer
and any person or entity designated by Lessor. Any such assessment or
investigation shall be at Lessee's sole cost and expense.
G. Lessee shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless the Indemnified Parties from and against
any and all Losses (excluding Losses arising out of Lessor's gross negligence
or wilful misconduct) and costs of Remediation (whether or not performed
voluntarily), engineers' fees, environmental consultants' fees, and costs of
investigation (including but not limited to sampling, testing, and analysis of
soil, water, air, building materials and other materials and substances whether
solid, liquid or gas) imposed upon or incurred by or asserted against any
Indemnified Parties, and directly or indirectly arising out of or in any way
relating to any one or more of the following: (i) any presence of any Hazardous
Materials, Regulated Substances or USTs in, on, above, or under the Premises;
(ii) any past, present or Threatened Release in, on, above, under or from the
Premises; (iii) any activity by Lessee, any person or entity affiliated with
Lessee or any tenant or other user of the Premises in connection with any
actual, proposed or threatened use, treatment, storage, holding, existence,
disposition or other Release, generation, production, manufacturing,
processing, refining, control, management, abatement, removal, handling,
transfer or transportation to or from the Premises of any Hazardous Materials,
Regulated Substances or USTs at any time located in, under, on or above the
Premises; (iv) any activity by Lessee, any person or entity affiliated with
Lessee or any tenant or other user of the Premises in connection with any
actual or proposed Remediation of any Hazardous Materials, Regulated
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Substances or USTs at any time located in, under, on or above the Premises,
whether or not such Remediation is voluntary or pursuant to court or
administrative order, including but not limited to any removal, remedial or
corrective action; (v) any past, present or threatened non-compliance or
violations of any Environmental Laws (or permits issued pursuant to any
Environmental Law) in connection with the Premises or operations thereon,
including but not limited to any failure by Lessee, any person or entity
affiliated with Lessee or any tenant or other user of the Premises to comply
with any order of any Governmental Authority in connection with any
Environmental Laws; (vi) the imposition, recording or filing or the threatened
imposition, recording or filing of any Environmental Lien encumbering the
Premises; (vii) any administrative processes or proceedings or judicial
proceedings in any way connected with any matter addressed in this Section;
(viii) any past, present or threatened injury to, destruction of or loss of
natural resources in any way connected with the Premises, including but not
limited to costs to investigate and assess such injury, destruction or loss;
(ix) any acts of Lessee or any other tenant, subtenant or users of the Premises
in arranging for disposal or treatment, or arranging with a transporter for
transport for disposal or treatment, of Hazardous Materials, Regulated
Substances or USTs owned or possessed by such Lessee or such tenant, subtenant
or users, at any facility or incineration vessel owned or operated by another
person or entity and containing such or similar Hazardous Materials, Regulated
Substances or USTs; (x) any acts of Lessee or any other tenant, subtenant or
users of the Premises, in accepting any Hazardous Materials, Regulated
Substances or USTs for transport to disposal or treatment facilities,
incineration vessels or sites selected by Lessee or such tenant, subtenant or
users, from which there is a Release, or a Threatened Release of any Hazardous
Material or Regulated Substances which causes the incurrence of costs for
Remediation; (xi) any personal injury, wrongful death, or property damage
arising under any statutory or common law or tort law theory, including but not
limited to damages assessed for the maintenance of a private or public nuisance
or for the conducting of an abnormally dangerous activity on or near the
Premises; and (xii) any misrepresentation or inaccuracy in any representation
or warranty or material breach or failure to perform any covenants or other
obligations pursuant to this Section.
At its sole cost and expense, Lessee shall have the Premises inspected
as may be required by any Environmental Law for seepage, spillage and other
environmental concerns. Lessee shall maintain and monitor the USTs in
accordance with all Environmental Laws. Lessee shall provide Lessor with
written certified results of all inspections performed on the Premises. All
costs and expenses associated with the inspection, preparation and
certification of results, as well as those associated with any corrective
action, shall be paid by Lessee. All inspections and tests performed on the
Premises shall be in compliance with all Environmental Laws.
Lessee shall comply or cause the compliance with all applicable
federal, state and local regulations and requirements regarding USTs including,
without limitation, any of such regulations or requirements which impose (i)
technical standards, including, without limitation, performance, leak
prevention, leak detection, notification reporting and recordkeeping, (ii)
corrective action with respect to confirmed and suspected Releases, and (iii)
financial responsibility for the payment of costs of corrective action and
compensation to third parties for injury and damage resulting from Releases.
Lessee shall immediately notify Lessor, in writing, of (i) the presence on or
under the Premises, or the escape, seepage, leakage, spillage, discharge,
emission or release from any USTs
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on, above or under the Premises, of any Hazardous Materials or Regulated
Substances, apparent or real and (ii) any and all enforcement, clean-up,
remedial, removal or other governmental or regulatory actions threatened,
instituted or completed pursuant to any of the Environmental Laws affecting the
Premises.
Upon any such Release, escape, seepage, leakage, spillage, discharge,
emission or release from any USTs on, above or under the Premises of any
Hazardous Materials or Regulated Substances, Lessee shall immediately remedy
such situation in accordance with all Environmental Laws and any request of
Lessor. Should Lessee fail to remedy or cause the remedy of such situation in
accordance with all Environmental Laws, Lessor shall be permitted to take such
actions in its sole discretion to remedy such situation and any costs and
expenses incurred in connection therewith will be paid by Lessee.
H. The obligations of Lessee and rights and remedies of Lessor under
the foregoing subsections D through G shall survive the termination, expiration
and/or release of this Lease.
I. In addition to the other requirements of this Section, Lessee
shall, at all times throughout the Interim Term and the Lease Term, comply with
all federal, state or local statutes, laws, rules, regulations, ordinances,
codes, policies or rules of common law now or hereafter in effect and in each
case, as amended, and any judicial or administrative interpretation thereof,
including any judicial order, consent, decree or judgment, applicable to
Lessee.
16. CONDITION OF PREMISES; MAINTENANCE. Lessee has inspected, or had
the opportunity to inspect, the Premises and hereby accepts the Premises "AS
IS" and "WHERE IS" with no representation or warranty of Lessor as to the
condition thereof. The Premises shall be kept in good, clean, sanitary and
working condition; and Lessee shall at all times at its own expense maintain,
repair and replace, as necessary, the Premises, including all portions of the
Premises, whether or not the Premises were in such condition on the Effective
Date.
17. WASTE; ALTERATIONS AND IMPROVEMENTS. Lessee shall not commit
actual or constructive waste upon the Premises. During the Lease Term, Lessee
shall not alter the exterior, structural, plumbing or electrical elements of
the Premises in any manner without the consent of Lessor, which consent shall
not be unreasonably withheld or conditioned; provided, however, Lessee may
undertake nonstructural alterations to the Premises costing less than $5,000.00
without Lessor's consent. If Lessor's consent is required hereunder and Lessor
consents to the making of any such alterations, the same shall be made by
Lessee at Lessee's sole expense by a licensed contractor and according to plans
and specifications approved by Lessor and subject to such other conditions as
Lessor shall require. Any work at any time commenced by Lessee on the Premises
shall be prosecuted diligently to completion, shall be of good workmanship and
materials and shall comply fully with all the terms of this Lease. Upon
completion of any alterations, Lessee shall promptly provide Lessor with (i)
evidence of full payment to all laborers and materialmen contributing to the
alterations, (ii) an architect's certificate certifying the alterations to have
been completed in conformity with the plans and specifications, (iii) a
certificate of occupancy (if the alterations are of such a nature as would
require the issuance of a certificate of occupancy), and (iv) any other
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documents or information reasonably requested by Lessor. Lessee shall execute
and file or record, as appropriate, a "Notice of Non-Responsibility," or any
equivalent notice permitted under applicable law in the state where the
Premises is located. Any addition to or alteration of the Premises shall be
deemed a part of the Premises and belong to Lessor, and Lessee shall execute
and deliver to Lessor such instruments as Lessor may require to evidence the
ownership by Lessor of such addition or alteration.
18. INDEMNIFICATION. Lessee shall indemnify, protect, defend and hold
harmless each of the Indemnified Parties from and against any and all Losses
(excluding Losses suffered by an Indemnified Party arising out of such
Indemnified Party's gross negligence or wilful misconduct) caused by, incurred
or resulting from Lessee's operations of or relating in any manner to the
Premises, whether relating to their original design or construction, latent
defects, alteration, maintenance, use by Lessee or any person thereon,
supervision or otherwise, or from any breach of, default under or failure to
perform any term or provision of this agreement by Lessee, its officers,
employees, agents or other persons. It is expressly understood and agreed that
Lessee's obligations under this Section shall survive the expiration or earlier
termination of this Lease for any reason.
19. QUIET ENJOYMENT. So long as Lessee shall pay the rental and other
sums herein provided and shall keep and perform all of the terms, covenants and
conditions on its part herein contained, Lessee shall have, subject and
subordinate to Lessor's rights herein, the right to the peaceful and quiet
occupancy of the Premises.
20. CONDEMNATION OR DESTRUCTION. A. In case of a taking of all or any
part of the Premises or the commencement of any proceedings or negotiations
which might result in a taking for any public or quasi-public purpose by any
lawful power or authority by exercise of the right of condemnation or eminent
domain or by agreement between Lessor, Lessee and those authorized to exercise
such right ("Taking"), Lessee will promptly give written notice thereof to
Lessor, generally describing the nature and extent of such Taking and including
copies of any documents or notices received in connection therewith.
B. In case of a Taking of the whole of the Premises, other than for
temporary use ("Total Taking"), this Lease shall terminate as of the date of
such Total Taking and all rentals, sums of money and other charges provided to
be paid by Lessee shall be apportioned and paid to the date of such Total
Taking; provided, however, in the event of a Total Taking, if the net award or
payment, after deducting all costs, fees and expenses incident to the
collection thereof (the "Net Amount"), for such Total Taking is less than
Lessor's Total Investment, Lessee shall pay to Lessor within 10 days of
Lessor's receipt of the Net Amount an amount equal to the difference between
Lessor's Total Investment and the Net Amount, if any. Total Taking shall
include a taking of substantially all the Premises if, in the sole
determination of Lessor, the remainder of the Premises is not useable and
cannot be made useable for the purposes provided herein. Lessor shall be
entitled to receive the entire award or payment in connection with any taking
of the Premises without deduction for any estate vested in Lessee by this
Lease. Lessee hereby expressly assigns to Lessor all of its right, title and
interest in and to every such award or payment and agrees that Lessee shall not
be entitled to any award or payment for the value of Lessee's leasehold
interest in the Lease. Lessee shall be entitled
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to claim and receive any award or payment from the condemning authority
expressly granted for the taking of Lessee's personal property, the
interruption of its business and moving expenses, but only if such claim or
award does not adversely affect or interfere with the prosecution of Lessor's
claim for the Taking. Lessee shall promptly send Lessor copies of all
correspondence and pleadings relating to any such claim.
C. In case of a temporary use of all or any part of the Premises by a
Taking ("Temporary Taking"), this Lease shall remain in full force and effect
without any reduction of Base Annual Rental, Additional Rent or any other sum
payable hereunder. Except as provided below, Lessee shall be entitled to the
entire award for a Temporary Taking, whether paid by damages, rent or
otherwise, unless the period of occupation and use by the condemning
authorities shall extend beyond the date of expiration of this Lease, in which
case the award made for such Taking shall be apportioned between Lessor and
Lessee as of the date of such expiration. At the termination of any such
Temporary Taking, Lessee will, at its own cost and expense and pursuant to the
terms of Section 17 above, promptly commence and complete the restoration of
the Premises; provided, however, Lessee shall not be required to restore the
Premises if the term of this Lease shall expire prior to, or within one year
after, the date of termination of the Temporary Taking, and in such event
Lessor shall be entitled to recover all damages and awards arising out of the
failure of the condemning authority to repair and restore the Premises at the
expiration of such Temporary Taking.
D. In the event of a Taking of less than all of the Premises for other
than a temporary use ("Partial Taking") or of damage or destruction to all or
any part of the Premises, all awards, compensation or damages shall be paid to
Lessor, and Lessor shall have the option to (i) terminate this Lease by
notifying Lessee within 60 days after Lessee gives Lessor notice of such damage
or destruction or that title has vested in the taking authority or (ii)
continue this Lease in effect, which election may be evidenced by either a
notice from Lessor to Lessee or Lessor's failure to notify Lessee that Lessor
has elected to terminate this Lease within such 60-day period. Lessee shall
have a period of 60 days after Lessor's notice that it has elected to terminate
this Lease during which to elect to continue this Lease on the terms herein
provided. If Lessee does not elect to continue this Lease or shall fail during
such 60-day period to notify Lessor of Lessee's intent to continue this Lease,
then this Lease shall terminate as of the last day of the month during which
such period expired. Lessee shall then immediately vacate and surrender the
Premises, all obligations of either party hereunder shall cease as of the date
of termination (provided, however, Lessee's obligations to Lessor under Section
18 and Lessee's obligations to pay Base Annual Rental, Additional Rent and all
other sums (whether payable to Lessor or to a third-party) accruing under this
Lease prior to the date of termination shall survive such termination) and
Lessor may retain all such awards, compensation or damages. If Lessor elects
not to terminate this Lease, or if Lessor elects to terminate this Lease but
Lessee elects to continue this Lease, then this Lease shall continue in full
force and effect on the following terms: (i) all Base Annual Rental, Additional
Rent and other sums and obligations due under this Lease shall continue
unabated, and (ii) Lessee shall promptly commence and diligently prosecute
restoration of the Premises to the same condition, as nearly as practicable, as
prior to such partial condemnation, damage or destruction as approved by
Lessor. Lessor shall promptly make available in installments as restoration
progresses an amount up to but not exceeding the amount of any award,
compensation or damages received by Lessor, upon request
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of Lessee accompanied by evidence reasonably satisfactory to Lessor that such
amount has been paid or is due and payable and is properly a part of such costs
and that Lessee has complied with the terms of Section 17 above in connection
with the restoration. Lessor shall be entitled to keep any portion of such
award, compensation or damages which may be in excess of the cost of
restoration, and Lessee shall bear all additional costs, fees and expenses of
such restoration in excess of the amount of any such award, compensation or
damages.
E. Notwithstanding the foregoing, if at the time of any Taking or at
any time thereafter Lessee shall be in default under this Lease and such
default shall be continuing, Lessor is hereby authorized and empowered but
shall not be obligated, in the name and on behalf of Lessee and otherwise, to
file and prosecute Lessee's claim, if any, for an award on account of any
Taking and to collect such award and apply the same, after deducting all costs,
fees and expenses incident to the collection thereof, to the curing of such
default and any other then existing default under this Lease.
21. INSPECTION. Lessor and its authorized representatives shall have
the right, upon giving reasonable notice, to enter the Premises or any part
thereof and inspect the same and make photographic or other evidence concerning
Lessee's compliance with the terms of this Lease. Lessee hereby waives any
claim for damages for any injury or inconvenience to or interference with
Lessee's business, any loss of occupancy or quiet enjoyment of the Premises and
any other loss occasioned by such entry. Lessee shall keep and maintain at the
Premises full, complete and appropriate books of account and records of
Lessee's business activities conducted at the Premises in accordance with
generally accepted accounting principles consistently applied. The books and
records of Lessee shall at all times be open for inspection by Lessor, its
auditors or other authorized representatives.
22. [Intentionally left blank.]
23. OPTION TO PURCHASE PREMISES. Lessee shall have the option during
the 90 days immediately preceding the tenth, fifteenth and twentieth
anniversaries of this Lease and during the 90-day period immediately preceding
the end of the first and second optional extension terms set forth in Section
28 of this Lease, if applicable (as applicable, the "Window"), to elect to
purchase the Premises for the greater of (i) its fair market value (which fair
market value shall be determined in the manner set forth below) or (ii)
Lessor's Total Investment. Lessee shall elect such option by giving written
notice (the "Option Notice") to Lessor of its intention to do so, and the
closing of such purchase must occur during the first 90 days (the "Purchase
Price") following the end of the applicable Window for which the Option Notice
was given. Within 90 days of Lessor's receipt of the Option Notice, Lessor
shall, at Lessee's sole expense, retain an independent MAI appraiser to prepare
an appraisal of the fair market value of the Premises, including any additions
or renovations thereto. In determining the fair market value of the Premises,
the appraiser shall utilize the cost, income and sales comparison approaches to
value. In utilizing the income approach, the appraiser shall determine the
"leased fee" value of the Premises, which shall be arrived at by considering
(i) the income that would be produced by this Lease through the end of the
fully extended Lease Term, and (ii) any other factors relating to such approach
which the appraiser shall deem relevant in his sole discretion. The highest
amount which results from the calculation of each of the cost approach, the
income approach, and the sales comparison approach, all as determined in
accordance with the
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provisions of this Section, shall constitute the fair market value of the
Premises for purposes of this Section. If within 20 days after being notified
of the result of such appraisal Lessee elects to reject that appraisal, then
the first appraisal shall become null and void and Lessor shall nominate to
Lessee a list of not less than three independent MAI appraisers who are
experienced with appraising property similar to the Premises, and Lessee shall
select one such appraiser. Within 60 days of such selection, Lessor shall
retain such appraiser to prepare an appraisal of the Premises in the same
manner described above. Within 20 days after the results of that appraisal have
been delivered to Lessee, Lessee shall notify Lessor of its election to
exercise this option to purchase the Premises for the price set forth in such
appraisal. If such notice of exercise is not received by Lessor within such
20-day period, the option for such time period shall lapse and this Lease shall
remain in full force and effect.
Upon exercise of this option, Lessor and Lessee shall open an escrow
account with a recognized title insurance or trust company selected by Lessor.
Such escrow shall be subject to the standard escrow instructions of the escrow
agent, to the extent they are not inconsistent herewith. At or before the close
of escrow, Lessor shall deliver to the escrow agent its special warranty deed
conveying to Lessee all of Lessor's right, title and interest in the Premises
free and clear of all liens and encumbrances except liens for taxes and
assessments and easements, covenants and restrictions of record which were
attached to the Premises as of the date hereof, attached during the Interim
Term or the Lease Term through Lessee's action or inaction, as the case may be,
have been granted by Lessor in lieu of a taking by the power of eminent domain
or the like, have been approved by Lessee, or which do not materially adversely
affect the use of the Premises as a restaurant. In the event Lessor is unable
to convey title as required, Lessee shall have the right to accept such title
as Lessor can convey or elect not to consummate its exercise of the option, in
which case the option for such time period shall lapse and this Lease shall
remain in full force and effect. Both Lessor and Lessee agree to execute a
purchase agreement, escrow instructions and such other instruments as may be
necessary or appropriate to consummate the sale of the Premises in the manner
herein provided. All cost of exercise of the option, including, but not limited
to, escrow fees, title insurance fees, recording costs or fees, attorneys' fees
(including those of Lessor), appraisal fees, stamp taxes and transfer fees
shall be borne by Lessee. Lessee shall continue to pay and perform all of its
obligations under this Lease until the close of escrow which in no event shall
occur after the date of the expiration of the Lease Term or the expiration of
any extension thereof. The purchase price paid by Lessee in exercising this
option shall be paid to Lessor or to such person or entity as Lessor may direct
at closing in immediately available funds. Lessee shall not have the right to
exercise this option or consummate the exercise thereof if at the time of
exercise or consummation it shall be in default of any of the terms and
conditions of this Lease or if any condition shall exist which upon the giving
of notice or the passage of time, or both, would constitute a default by Lessee
under this Lease.
The failure of Lessee to consummate the purchase of the Premises as
contemplated herein shall not release Lessee from its obligations under this
Lease and the Lease shall remain in full force and effect until the expiration
of the Lease Term or applicable extension period. The escrow shall close within
the applicable Window, or Lessor, at its option, may terminate Lessee's option
to purchase the Premises during such time period. The closing date may be
extended for a reasonable
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period of time to permit Lessor to cure title defects
or to permit either party to cure any other defects or defaults provided each
party is diligently seeking to cure such defect or default and Lessee continues
to perform its obligation hereunder.
Lessee may not sell, assign, transfer, hypothecate or otherwise
dispose of the option granted herein or any interest therein, except in
conjunction with a permitted assignment of Lessee's entire interest herein and
then only to the assignee thereof. Any attempted assignment of this option
which is contrary to the terms of this paragraph shall be deemed to be a
default under this Lease and the option granted herein shall be void.
24. DEFAULT, REMEDIES AND MEASURE OF DAMAGES. A. Each of the following
shall be an event of default under this Lease (each, an "Event of Default"):
(i) If any representation or warranty of Lessee set forth in
any of the Development Documents is false in any material respect, or
if Lessee renders any false statement or account;
(ii) If any rent or other monetary sum due under this Lease
or any other Development Document is not paid within five days from
the date when due; provided, however, notwithstanding the occurrence
of such an Event of Default, Lessor shall not be entitled to exercise
its remedies set forth below unless and until Lessor shall have given
Lessee notice thereof and a period of five days from the delivery of
such notice shall have elapsed without such Event of Default being
cured;
(iii) If Lessee fails to pay, prior to delinquency, any
taxes, assessments or other charges the failure of which to pay will
result in the imposition of a lien against the Premises pursuant to
the regulations of any applicable Governmental Authority;
(iv) If Lessee becomes insolvent within the meaning of the
Code, files or notifies Lessor that it intends to file a petition
under the Code, initiates a proceeding under any similar law or
statute relating to bankruptcy, insolvency, reorganization, winding up
or adjustment of debts (collectively, hereinafter, an "Action"),
becomes the subject of either a petition under the Code or an Action,
or is not generally paying its debts as the same become due;
(v) If Lessee vacates or abandons the Premises;
(vi) If Lessee fails to observe or perform any of the other
covenants, conditions, or obligations of this Lease; provided,
however, if any such failure does not involve the payment of any
monetary sum is not willful or intentional, does not place any rights
or property of Lessor in immediate jeopardy, and is within the
reasonable power of Lessee to promptly cure after receipt of notice
thereof, all as determined by Lessor in its reasonable discretion,
then such failure shall not constitute an Event of Default hereunder,
unless otherwise expressly provided herein, unless and until Lessor
shall have given Lessee notice thereof and a period of 30 days shall
have elapsed, during which period Lessee may correct
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or cure such failure, upon failure of which an Event of Default shall
be deemed to have occurred hereunder without further notice or demand
of any kind being required. If such failure cannot reasonably be cured
within such 30-day period, as determined by Lessor in its reasonable
discretion, and Lessee is diligently pursuing a cure of such failure,
then Lessee shall have a reasonable period to cure such failure beyond
such 30-day period, which shall in no event exceed 90 days after
receiving notice of the failure from Lessor. If Lessee shall fail to
correct or cure such failure within such 90-day period, an Event of
Default shall be deemed to have occurred hereunder without further
notice or demand of any kind being required;
(vii) If there is a breach or default, after the passage of
all applicable notice and cure or grace periods, under any other
Development Document or any of the Other Agreements;
(viii) [Intentionally left blank];
(ix) If a final, nonappealable judgment is rendered by a
court against Lessee which has a material adverse effect on the
ability to conduct business at the Premises for its intended use, or
which does not have a material adverse effect on the ability to
conduct business at the Premises for its intended use but which is in
the amount of $100,000 or more, and in either event is not discharged
or provision made for such discharge within 60 days from the date of
entry thereof.
B. Upon the occurrence of an Event of Default, with or without notice
or demand, except the notice prior to default required under certain
circumstances by subsection A above or such other notice as may be required by
statute and cannot be waived by Lessee (all other notices being hereby waived),
Lessor shall be entitled to exercise, at its option, concurrently,
successively, or in any combination, all remedies available at law or in
equity, including without limitation any one or more of the following:
(i) To terminate this Lease, whereupon Lessee's right to
possession of the Premises shall cease and this Lease, except as to
Lessee's liability, shall be terminated.
(ii) To reenter and take possession of the Premises, any or
all personal property or fixtures of Lessee upon the Premises and, to
the extent permissible, all franchises, licenses, area development
agreements, permits and other rights or privileges of Lessee
pertaining to the use and operation of the Premises and to expel
Lessee and those claiming under or through Lessee, without being
deemed guilty in any manner of trespass or becoming liable for any
loss or damage resulting therefrom, without resort to legal or
judicial process, procedure or action. No notice from Lessor hereunder
or under a forcible entry and detainer statute or similar law shall
constitute an election by Lessor to terminate this Lease unless such
notice specifically so states. If Lessee shall, after default,
voluntarily give up possession of the Premises to Lessor, deliver to
Lessor or its agents the keys to the Premises, or both, such actions
shall be deemed to be in compliance with Lessor's rights and the
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acceptance thereof by Lessor or its agents shall not be deemed to
constitute a termination of the Lease. Lessor reserves the right
following any reentry and/or reletting to exercise its right to
terminate this Lease by giving Lessee written notice thereof, in which
event this Lease will terminate as specified in said notice.
(iii) To seize all personal property or fixtures upon the
Premises which Lessee owns or in which it has an interest, in which
Lessor shall have a landlord's lien and/or security interest, and to
dispose thereof in accordance with the laws prevailing at the time and
place of such seizure or to remove all or any portion of such property
and cause the same to be stored in a public warehouse or elsewhere at
Lessee's sole expense.
(iv) To bring an action against Lessee for any damages
sustained by Lessor.
(v) To relet the Premises or any part thereof for such term
or terms (including a term which extends beyond the original term of
this Lease), at such rentals and upon such other terms as Lessor, in
its sole discretion, may determine, with all proceeds received from
such reletting being applied to the rental and other sums due from
Lessee in such order as Lessor, may, in it sole discretion, determine,
which other sums include, without limitation, all repossession costs,
brokerage commissions, attorneys' fees and expenses, employee
expenses, alteration, remodeling and repair costs and expenses of
preparing for such reletting. Except to the extent required by
applicable law, Lessor shall have no obligation to relet the Premises
or any part thereof and shall in no event be liable for refusal or
failure to relet the Premises or any part thereof, or, in the event of
any such reletting, for refusal or failure to collect any rent due
upon such reletting, and no such refusal or failure shall operate to
relieve Lessee of any liability under this Lease or otherwise to
affect any such liability. Lessor reserves the right following any
such reentry and/or reletting to exercise its right to terminate this
Lease by giving Lessee written notice thereof, in which event this
Lease will terminate as specified in said notice.
(vi) To accelerate and recover from Lessee all rent and other
monetary sums due and owing and scheduled to become due and owing
under the Lease both before and after the date of such breach for the
original scheduled term of this Lease.
(vii) To recover from Lessee all costs and expenses,
including attorneys' fees, court costs, expert witness fees, costs of
tests and analyses, travel and accommodation expenses, deposition and
trial transcripts, copies and other similar costs and fees, paid or
incurred by Lessor as a result of such breach, regardless of whether
or not legal proceedings are actually commenced.
(viii) To immediately or at any time thereafter, and with or
without notice, at Lessor's sole option but without any obligation to
do so, correct such breach or default and charge Lessee all costs and
expenses incurred by Lessor therein. Any sum or sums so paid by
Lessor, together with interest at the then existing maximum legal
rate, but not higher than 18% per annum, shall be deemed to be
additional rent hereunder and shall be immediately due from Lessee to
Lessor. Any such acts by Lessor in correcting Lessee's breaches or
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defaults hereunder shall not be deemed to cure said breaches or
defaults or constitute any waiver of Lessor's right to exercise any or
all remedies set forth herein.
(ix) To immediately or at any time thereafter, and with or
without notice, except as required herein, set off any money of Lessee
held by Lessor under this Lease against any sum owing by Lessee
hereunder.
(x) To seek any equitable relief available to Lessor,
including, without limitation, the right of specific performance.
All powers and remedies given by this Section to Lessor, subject to
applicable law, shall be cumulative and not exclusive of one another or of any
other right or remedy or of any other powers and remedies available to Lessor
under this Lease or any other Development Document, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements of Lessee contained in this Lease, and no delay or omission of
Lessor to exercise any right or power accruing upon the occurrence of any Event
of Default shall impair any other or subsequent Event of Default or impair any
rights or remedies consequent thereto. Every power and remedy given by this
Section or by law to Lessor may be exercised from time to time, and as often as
may be deemed expedient, by Lessor, subject at all times to Lessor's right in
its sole judgment to discontinue any work commenced by Lessor or change any
course of action undertaken by Lessor.
25. MORTGAGE, SUBORDINATION, NONDISTURBANCE AND ATTORNMENT. Lessor's
interest in this Lease and/or the Premises shall not be subordinate to any
encumbrances placed upon the Premises by or resulting from any act of Lessee,
and nothing herein contained shall be construed to require such subordination
by Lessor. Lessee shall keep the Premises free from any liens for work
performed, materials furnished or obligations incurred by Lessee. EXCEPT AS
OTHERWISE CONSENTED TO BY LESSOR PURSUANT TO SECTION 27, NOTICE IS HEREBY GIVEN
THAT LESSEE IS NOT AUTHORIZED TO PLACE OR ALLOW TO BE PLACED ANY LIEN,
MORTGAGE, DEED OF TRUST OR ENCUMBRANCE OF ANY KIND UPON ALL OR ANY PART OF THE
PREMISES OR LESSEE'S LEASEHOLD INTEREST THEREIN, AND ANY SUCH PURPORTED
TRANSACTION SHALL BE VOID. FURTHERMORE, ANY SUCH PURPORTED TRANSACTION SHALL BE
DEEMED A TORTIOUS INTERFERENCE WITH LESSOR'S RELATIONSHIP WITH LESSEE AND
LESSOR'S FEE OWNERSHIP OF THE PREMISES.
This Lease at all times shall automatically be subordinate to the lien
of any and all ground leases, mortgages and trust deeds now or hereafter placed
upon the Premises by Lessor, and Lessee covenants and agrees to execute and
deliver, upon demand, such further instruments subordinating this Lease to the
lien of any or all such ground leases, mortgages or trust deeds as shall be
desired by Lessor, or any present or proposed mortgagees or trustees under
trust deeds, upon the condition that Lessee shall have the right to remain in
possession of the Premises under the terms of this Lease, notwithstanding any
default in any or all such mortgages or trust deeds, or after foreclosure
thereof, so long as Lessee is not in default under any of the covenants,
conditions and agreements contained in this Lease.
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If any mortgagee or trustee elects to have this Lease and the interest
of Lessee hereunder be superior to any such interest or right and evidences
such election by notice given to Lessee, then this Lease and the interest of
Lessee hereunder shall be deemed superior to any such mortgage or trust deed,
whether this Lease was executed before or after such mortgage or trust deed and
in that event such mortgagee or trustee shall have the same rights with respect
to this Lease as if it had been executed and delivered prior to the execution
and delivery of the mortgage or trust deed and has been assigned to such
mortgagee or trustee.
Although the foregoing provisions shall be self-operative and no
future instrument of subordination shall be required, upon request by Lessor,
Lessee shall execute and deliver whatever instruments may be required for such
purposes, and in the event Lessee fails so to do within 10 days after demand,
Lessee does hereby make, constitute and irrevocably appoint Lessor as its agent
and attorney-in-fact and in its name, place and stead so to do, which
appointment shall be deemed coupled with an interest.
In the event any collateral assignee or purchaser at a foreclosure
sale acquires title to the Premises pursuant to the exercise of any remedy
provided for in the collateral assignment, mortgage or trust deed or otherwise,
Lessee shall attorn to such purchaser and recognize such purchaser as Lessor
under this Lease, which shall continue in full force and effect as a direct
lease between such purchaser and Lessee. The foregoing provision shall be self
operative and effective without the execution of any further instruments.
Lessee shall give written notice to any lender of Lessor having a
recorded lien upon the Premises or any part thereof of which Lessee has been
notified of any breach or default by Lessor of any of its obligations under
this Lease and give such lender at least 60 days beyond any notice period to
which Lessor might be entitled to cure such default before Lessee may exercise
any remedy with respect thereto. Upon request by Lessor, Lessee shall also
provide Lessee's most recent audited financial statements to Lessor or any such
lender and certify the continuing accuracy of such financial statements in such
manner as Lessor or such lender may request.
26. ESTOPPEL CERTIFICATE. A. At any time, and from time to time,
Lessee agrees, promptly and in no event later than 10 days after a request from
Lessor, to execute, acknowledge and deliver to Lessor or any present or
proposed mortgagee or purchaser designated by Lessor a certificate in the form
supplied by Lessor, certifying: (i) that Lessee has accepted the Premises (or,
if Lessee has not done so, that Lessee has not accepted the Premises, and
specifying the reasons therefor); (ii) that this Lease is in full force and
effect and has not been modified (or if modified, setting forth all
modifications), or, if this Lease is not in full force and effect, the
certificate shall so specify the reasons therefor; (iii) the commencement and
expiration dates of the Interim Term and the Lease Term and the terms of any
extension options of Lessee; (iv) the date to which the rentals have been paid
under this Lease and the amount thereof then payable; (v) whether there are
then any existing defaults by Lessor in the performance of its obligations
under this Lease, and, if there are any such defaults, specifying the nature
and extent thereof; (vi) that no notice has been received by Lessee of any
default under this Lease which has not been cured, except as to defaults
specified in
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the certificate; (vii) the capacity of the person executing such certificate,
and that such person is duly authorized to execute the same on behalf of
Lessee; and (viii) any other information reasonably requested by Lessor, or its
present or proposed purchaser or mortgagee.
B. If Lessee shall fail or refuse to sign a certificate in accordance
with the provisions of this Section within 10 days following a request by
Lessor, Lessee irrevocably constitutes and appoints Lessor as its
attorney-in-fact to execute and deliver the certificate to any such third
party, it being stipulated that such power of attorney is coupled with an
interest and is irrevocable and binding.
27. ASSIGNMENT. Lessor shall have the right to sell or convey the
Premises subject to this Lease or to assign its right, title and interest as
Lessor under this Lease in whole or in part. In the event of any such sale or
assignment other than a security assignment, Lessee shall attorn to such
purchaser or assignee and Lessor shall be relieved, from and after the date of
such transfer or conveyance, of liability for the performance of any obligation
of Lessor contained herein, except for obligations or liabilities accrued prior
to such assignment or sale.
Lessee acknowledges that Lessor has relied both on the business
experience and creditworthiness of Lessee and upon the particular purposes for
which Lessee intends to use the Premises in entering into this Lease. Without
the consent of Lessor (i) Lessee shall not assign, transfer, convey, pledge or
mortgage this Lease or any interest therein, whether by operation of law or
otherwise; (ii) no interest in Lessee shall be assigned, transferred, conveyed,
pledged or mortgaged, whether by operation of law or otherwise, including,
without limitation, dissolution of Lessee or, if Lessee is a corporation, a
transfer (by one or more transactions) of a majority of the voting stock of
Lessee, or if Lessee is a partnership, a transfer of the controlling interest
in Lessee (including the admission of new partners or withdrawal of existing
partners having a controlling interest), regardless of whether the transfer is
made by one or more transactions, or whether one or more persons hold the
controlling interest prior to the transfer or afterwards; and (iii) Lessee
shall not sublet all or any part of the Premises. It is expressly agreed that
Lessor may withhold or condition such consent based upon such matters as Lessor
may in its reasonable discretion determine, including, without limitation, the
experience and creditworthiness of any assignee, the assumption by any assignee
of all of Lessee's obligations hereunder by undertakings enforceable by Lessor,
payment to Lessor of any rentals owing under a sublease which are in excess of
the rentals owing hereunder, the transfer to any assignee of all necessary
licenses and franchises to continue operating the Premises for the purposes
herein provided, receipt of such representations and warranties from any
assignee as Lessor may request, including such matters as its organization,
existence, good standing and finances and other matters, whether or not similar
in kind. At the time of any assignment of this Lease which is approved by
Lessor, the assignee shall assume all of the obligations of Lessee under this
Lease pursuant to Lessor's standard form of assumption agreement. No such
assignment nor any subletting of the Premises shall relieve Lessee of its
obligations respecting this Lease. Any assignment, purported transfer,
conveyance, pledge or mortgage in violation of this paragraph shall be voidable
at the sole option of Lessor.
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28. OPTION TO EXTEND. Lessee, provided it is not in default hereunder
at the time of exercise or at the expiration of the Lease Term or, if
applicable, the first extension of the Lease Term, shall have the option to
continue this Lease in effect for up to two additional successive periods of
five years each in accordance with the terms and provisions of this Lease then
in effect except for the following:
A. In the event the annual fair market rental value of the
Premises (to be determined as set forth below) is greater than the
Base Annual Rental then the annual fair market rental value of the
Premises shall be substituted for the Base Annual Rental and all other
provisions shall remain the same; or
B. In the event the annual fair market rental value of the
Premises is less than the Base Annual Rental the provisions of this
Lease shall remain the same.
Lessee shall exercise such extension option by giving notice to Lessor
of Lessee's intention to do so not more than 270 days or less than 210 days
prior to the expiration of the Lease Term or the first extension of the Lease
Term and upon receipt of such notice Lessor shall within 90 days, at Lessee's
expense, cause an appraisal of the fair market rental value of the Premises to
be made by an independent MAI appraiser. If within 20 days after being notified
of the result of such appraisal Lessee elects to reject that appraisal, then
Lessor shall nominate to Lessee a list of not less than three independent MAI
appraisers who are experienced with appraising property similar to the
Premises, and Lessee shall select one such appraiser. Within 60 days of such
selection an appraisal shall be made of the Premises by that appraiser and
within 20 days after the results of that appraisal shall have been delivered to
Lessee, Lessee shall notify Lessor of Lessee's election to exercise its option
to extend this Lease and shall pay the rental so established above which shall
be absolutely net to Lessor as provided in Section 7 hereof. If such notice of
exercise is not received by Lessor within the 20-day period then this Lease
shall terminate on the last day of the Lease Term or, if applicable, the last
day of the first extension of the Lease Term.
29. NOTICES. All notices, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this Lease shall
be in writing and given by (i) hand delivery, (ii) facsimile, (iii) express
overnight delivery service or (iv) certified or registered mail, return receipt
requested, and shall be deemed to have been delivered upon (a) receipt, if hand
delivered, (b) transmission, if delivered by facsimile, (c) the next business
day, if delivered by express overnight delivery service, or (d) the third
business day following the day of deposit of such notice with the United States
Postal Service, if sent by certified or registered mail, return receipt
requested. Notices shall be provided to the parties and addresses (or facsimile
numbers, as applicable) specified below:
If to Lessee: Mr. Xxxxxx Xxxxx
Executive Vice President and
Chief Financial Officer
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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If to Lessor: Xxxxxx X. Xxxxx, Esq.
Executive Vice President and
General Counsel
FFCA Acquisition Corporation
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or such other person as either party may from time to
time hereafter specify to the other party in a notice delivered in the manner
provided above.
30. HOLDING OVER. If Lessee remains in possession of the Premises
after the expiration of the term hereof, Lessee, at Lessor's option and within
Lessor's sole discretion, may be deemed a tenant on a month-to-month basis and
shall continue to pay rentals and other sums in the amounts herein provided,
except that the Base Monthly Rental shall be automatically doubled, and to
comply with all the terms of this Lease; provided that nothing herein nor the
acceptance of rent by Lessor shall be deemed a consent to such holding over.
Lessee shall defend, indemnify, protect and hold Lessor harmless from and
against any and all claims, losses and liabilities for damages resulting from
Lessee's failure to surrender possession upon the expiration of the Lease Term,
including, without limitation, any claims made by any succeeding lessee.
31. LANDLORD'S LIEN/SECURITY INTEREST. Lessee agrees that Lessor shall
have a landlord's lien, and additionally hereby separately grants to Lessor a
first and prior security interest, in, on and against all personal property,
appliances, furniture and equipment of Lessee from time to time situated on or
used in connection with the Premises, which lien and security interest shall
secure the payment of all rental and other charges payable by Lessee to Lessor
under the terms hereof and all other obligations of Lessee to Lessor under this
Lease. Lessee further agrees to execute and deliver to Lessor from time to time
such financing statements and other documents as Lessor may then deem
appropriate or necessary to perfect and maintain said lien and security
interest, and expressly acknowledges and agrees that, in addition to any and
all other rights and remedies of Lessor whether hereunder or at law or in
equity, in the event of any default of Lessee hereunder, Lessor shall have any
and all rights and remedies granted a secured party under the Uniform
Commercial Code then in effect in the State in which the Premises is located.
If Lessee shall fail for any reason to execute any such financing statement or
document within 10 days after Lessor's request therefor, Lessor shall have the
right to execute the same as attorney-in-fact of Lessee, coupled with an
interest, for, and on behalf, and in the name of Lessee. Lessee covenants to
promptly notify Lessor of any changes in Lessee's name and/or organizational
structure which may necessitate the execution and filing of additional
financing statements (provided, however, the foregoing shall not be construed
as Lessor's consent to such changes). Notwithstanding the foregoing, Lessor
agrees that upon Lessee's request, Lessor will without charge subordinate its
landlord's lien and security interest in any personal property owned by Lessee
to the purchase money security interest of any unaffiliated lender.
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32. REMOVAL OF LESSEE'S PROPERTY. At the expiration of the term of
this Lease, and if Lessee is not then in breach hereof, Lessee may remove from
the Premises all personal property belonging to Lessee. Lessee shall repair any
damage caused by such removal and shall leave the Premises broom clean and in
good and working condition and repair inside and out. Any property of Lessee
left on the Premises on the tenth day following the expiration of the Lease
Term shall automatically and immediately become the property of Lessor.
33. FINANCIAL STATEMENTS. Within 45 days after the end of each fiscal
quarter and within 120 days after the end of each fiscal year of Lessee, Lessee
shall deliver to Lessor (i) complete financial statements of Lessee including a
balance sheet, profit and loss statement, statement of changes in financial
condition and all other related schedules for the fiscal period then ended; and
(ii) income statements for the business at the Premises. All such financial
statements shall be prepared in accordance with generally accepted accounting
principles, consistently applied from period to period, and shall be certified
to be accurate and complete by Lessee (or the Treasurer or other appropriate
officer of Lessee). Lessee understands that Lessor is relying upon such
financial statements and Lessee represent that such reliance is reasonable. In
the event that Lessee's property and business at the Premises is ordinarily
consolidated with other business for financial statement purposes, such
financial statements shall be prepared on a consolidated basis showing
separately the sales, profits and losses, assets and liabilities pertaining to
the Premises with the basis for allocation of overhead of other charges being
clearly set forth. The financial statements delivered to Lessor need not be
audited, but Lessee shall deliver to Lessor copies of any audited financial
statements of Lessee which may be prepared, as soon as they are available.
34. FORCE MAJEURE. Any prevention, delay or stoppage due to strikes,
lockouts, acts of God, enemy or hostile governmental action, civil commotion,
fire or other casualty beyond the control of the party obligated to perform
shall excuse the performance by such party for a period equal to any such
prevention, delay or stoppage, except the obligations imposed with regard to
rental and other monies to be paid by Lessee pursuant to this Lease.
35. DOCUMENT REVIEW. In the event Lessee makes any request upon Lessor
requiring Lessor or its attorneys to review and/or prepare (or cause to be
reviewed and/or prepared) any document or documents in connection with or
arising out of or as a result of this Lease, then, except as expressly stated
elsewhere herein, Lessee shall reimburse Lessor or its designee promptly upon
Lessor's demand therefor a reasonable processing and reviewing fee for each
such request.
36. TIME IS OF THE ESSENCE. Time is of the essence with respect to
each and every provision of this Lease in which time is a factor.
37. LESSOR'S LIABILITY. Notwithstanding anything to the contrary
provided in this Lease, it is specifically understood and agreed, such
agreement being a primary consideration for the execution of this Lease by
Lessor, that (i) there shall be absolutely no personal liability on the part of
Lessor, its successors or assigns and its officers, directors, employees and
agents to Lessee with respect to any of the terms, covenants and conditions of
this Lease, (ii) Lessee waives all claims, demands and causes of action against
Lessor's officers, directors, employees and agents in the event of any breach
by Lessor of any of the terms, covenants and conditions of this Lease to be
performed by Lessor, and (iii) Lessee shall look solely to the Premises for the
satisfaction of each and every remedy of Lessee in the event
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of any breach by Lessor of any of the terms, covenants and conditions of this
Lease to be performed by Lessor, or any other matter in connection with this
Lease or the Premises, such exculpation of liability to be absolute and without
any exception whatsoever.
38. CONSENT OF LESSOR. Unless specified otherwise herein, Lessor's
consent to any request of Lessee may be conditioned or withheld in Lessor's
sole discretion. Lessor shall have no liability for damages resulting from
Lessor's failure to give any consent, approval or instruction reserved to
Lessor, Lessee's sole remedy in any such event being an action for injunctive
relief.
39. WAIVER AND AMENDMENT. No provision of this Lease shall be deemed
waived or amended except by a written instrument unambiguously setting forth
the matter waived or amended and signed by the party against which enforcement
of such waiver or amendment is sought. Waiver of any matter shall not be deemed
a waiver of the same or any other matter on any future occasion. No acceptance
by Lessor of an amount less than the monthly rent and other payments stipulated
to be due under this Lease shall be deemed to be other than a payment on
account of the earliest such rent or other payments then due or in arrears nor
shall any endorsement or statement on any check or letter accompanying any such
payment be deemed a waiver of Lessor's right to collect any unpaid amounts or
an accord and satisfaction.
40. SUCCESSORS BOUND. Except as otherwise specifically provided
herein, the terms, covenants and conditions contained in this Lease shall bind
and inure to the benefit of the respective heirs, successors, executors,
administrators and assigns of each of the parties hereto.
41. NO MERGER. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not result in a merger of
Lessor's and Lessee's estates, and shall, at the option of Lessor, either
terminate any or all existing subleases or subtenancies, or operate as an
assignment to Lessor of any or all of such subleases or subtenancies.
42. CAPTIONS. Captions are used throughout this Lease for convenience
of reference only and shall not be considered in any manner in the construction
or interpretation hereof.
43. SEVERABILITY. The provisions of this Lease shall be deemed
severable. If any part of this Lease shall be held unenforceable by any court
of competent jurisdiction, the remainder shall remain in full force and effect,
and such unenforceable provision shall be reformed by such court so as to give
maximum legal effect to the intention of the parties as expressed therein.
44. CHARACTERIZATION. A. It is the intent of the parties hereto that
the business relationship created by this Lease and any related documents is
solely that of a long-term commercial lease between landlord and tenant and has
been entered into by both parties in reliance upon the economic and legal
bargains contained herein. None of the agreements contained herein, is
intended, nor shall the same be deemed or construed, to create a partnership
between Lessor and Lessee, to make them joint venturers, to make Lessee an
agent, legal representative, partner, subsidiary or
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employee of Lessor, nor to make Lessor in any way responsible for the debts,
obligations or losses of Lessee.
X. Xxxxxx and Lessee acknowledge and warrant to each other that each
has been represented by independent counsel and has executed this Lease after
being fully advised by said counsel as to its effect and significance. This
Lease shall be interpreted and construed in a fair and impartial manner without
regard to such factors as the party which prepared the instrument, the relative
bargaining powers of the parties or the domicile of any party. Whenever in this
Lease any words of obligation or duty are used, such words or expressions shall
have the same force and effect as though made in the form of a covenant.
45. EASEMENTS. During the Interim Term and the Lease Term, Lessor
shall have the right to grant utility easements on, over, under and above the
Premises without the prior consent of Lessee, provided that such easements will
not materially or unreasonably interfere with Lessee's use of the Premises.
46. BANKRUPTCY. A. As a material inducement to Lessor executing this
Lease, Lessee acknowledges and agrees that Lessor is relying upon (i) the
financial condition and specific operating experience of Lessee and Lessee's
obligation to use the Premises specifically in accordance with the terms and
provisions of this Lease, (ii) Lessee's timely performance of all of its
obligations under this Lease notwithstanding the entry of an order for relief
under the Code for Lessee, and (iii) all defaults under the Lease being cured
promptly and the Lease being assumed within 60 days of any order for relief
entered under the Code for Lessee, or the Lease being rejected within such 60
day period and the Premises surrendered to Lessor.
Accordingly, in consideration of the mutual covenants contained in
this Lease and for other good and valuable consideration, Lessee hereby agrees
that:
(i) All obligations that accrue under this Lease (including
the obligation to pay rent), from and after the date that an Action is
commenced shall be timely performed exactly as provided in this Lease
and any failure to so perform shall be harmful and prejudicial to
Lessor;
(ii) Any and all rents that accrue from and after the date
that an Action is commenced and that are not paid as required by this
Lease shall, in the amount of such rents, constitute administrative
expense claims allowable under the Code with priority of payment at
least equal to that of any other actual and necessary expenses
incurred after the commencement of the Action;
(iii) Any extension of the time period within which the
Lessee may assume or reject the Lease without an obligation to cause
all obligations under the Lease to be performed as and when required
under the Lease shall be harmful and prejudicial to Lessor;
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(iv) Any time period designated as the period within which
the Lessee must cure all defaults and compensate Lessor for all
pecuniary losses which extends beyond the date of assumption of the
Lease shall be harmful and prejudicial to Lessor;
(v) Any assignment of the Lease must result in all terms and
conditions of the Lease being assumed by the assignee without
alteration or amendment, and any assignment which results in an
amendment or alteration of the terms and conditions of the Lease
without the express written consent of Lessor shall be harmful and
prejudicial to Lessor;
(vi) Any proposed assignment of the Lease to an assignee: (1)
that will not use the Premises specifically in accordance with the
terms and provisions of this Lease, or (2) that does not possess
financial condition, operating performance and experience
characteristics equal to or better than the financial condition,
operating performance and experience of Lessee as of the Effective
Date, shall be harmful and prejudicial to Lessor; and
(vii) The rejection (or deemed rejection) of the Lease for
any reason whatsoever shall constitute cause for immediate relief from
the automatic stay provisions of the Code, and Lessee stipulates that
such automatic stay shall be lifted immediately and possession of the
Premises will be delivered to Lessor immediately without the necessity
of any further action by Lessor.
B. No provision of this Lease shall be deemed a waiver of Lessor's
rights or remedies under the Code or applicable law to oppose any assumption
and/or assignment of this Lease, to require timely performance of Lessee's
obligations under this Lease, or to regain possession of the Premises as a
result of the failure of Lessee to comply with the terms and conditions of this
Lease or the Code.
C. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Lessee to or on behalf of Lessor under this Lease, whether or not
expressly denominated as such, shall constitute "rent" for the purposes of the
Code.
D. For purposes of this Section addressing the rights and obligations
of Lessor and Lessee in the event that a Action is commenced, the term "Lessee"
shall include Lessee's successor in bankruptcy, whether a trustee, Lessee as
debtor in possession or other responsible person.
47. NO OFFER. No contractual or other rights shall exist between
Lessor and Lessee with respect to the Premises until both have executed and
delivered this Lease, notwithstanding that deposits may have been received by
Lessor and notwithstanding that Lessor may have delivered to Lessee an
unexecuted copy of this Lease. The submission of this Lease to Lessee shall be
for examination purposes only, and does not and shall not constitute a
reservation of or an option for Lessee to lease or otherwise create any
interest on the part of Lessee in the Premises.
48. OTHER DOCUMENTS. Each of the parties agrees to sign such other and
further documents as may be necessary or appropriate to carry out the
intentions expressed in this Lease.
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49. ATTORNEYS' FEES. In the event of any judicial or other adversarial
proceeding between the parties concerning this Lease, to the extent permitted
by law, the prevailing party shall be entitled to recover all of its reasonable
attorneys' fees and other costs in addition to any other relief to which it may
be entitled. In addition, Lessor shall, upon demand, be entitled to all
attorneys' fees and all other costs incurred in the preparation and service of
any notice or demand hereunder, whether or not a legal action is subsequently
commenced. References in this Lease to Lessor's attorneys' fees and/or costs
shall mean both the fees and costs of independent counsel retained by Lessor
with respect to the matter and the fees and costs of Lessor's in-house counsel
incurred in connection with the matter.
50. ENTIRE AGREEMENT. This Lease, the First Amendment, the Development
Documents between Lessor and Lessee and any other instruments or agreements
referred to herein constitute the entire agreement between the parties with
respect to the subject matter hereof, and there are no other representations,
warranties or agreements except as herein provided. Without limiting the
foregoing, Lessee specifically acknowledges that neither Lessor nor any agent,
officer, employee or representative of Lessor has made any representation or
warranty regarding the projected level of profitability of the business to be
conducted on the Premises. Furthermore, Lessee acknowledges that Lessor did not
prepare or assist in the preparation of any of the projected figures used by
Lessee in analyzing the economic viability and feasibility of the business to
be conducted by Lessee at the Premises.
51. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW. Lessee
acknowledges that this Lease was substantially negotiated in the State of
Arizona, the executed Lease was delivered in the State of Arizona, all payments
under the Lease will be delivered in the State of Arizona and there are
substantial contacts between the parties and the transactions contemplated
herein and the State of Arizona. For purposes of any action or proceeding
arising out of this Lease, the parties hereto expressly submit to the
jurisdiction of all federal and state courts located in the State of Arizona.
Lessee consents that it may be served with any process or paper by registered
mail or by personal service within or without the State of Arizona in
accordance with applicable law. Furthermore, Lessee waives and agrees not to
assert in any such action, suit or proceeding that it is not personally subject
to the jurisdiction of such courts, that the action, suit or proceeding is
brought in an inconvenient forum or that venue of the action, suit or
proceeding is improper. The creation of this Lease and the rights and remedies
of Lessor with respect to the Premises, as provided herein and by the laws of
the state in which the Premises is located, shall be governed by and construed
in accordance with the internal laws of the state in which the Premises is
located without regard to principles of conflict of law. With respect to other
provisions of this Lease, this Lease shall be governed by the internal laws of
the State of Arizona. Nothing contained in this Section shall limit or restrict
the right of Lessor to commence any proceeding in the federal or state courts
located in the state in which the Premises is located to the extent Lessor
deems such proceeding necessary or advisable to exercise remedies available
under this Lease.
52. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall be deemed an original.
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53. JOINT AND SEVERAL LIABILITY. If Lessee consists of more than one
individual or entity, each such individual and/or entity shall be jointly and
severally liable for all obligations of Lessee under this Lease.
54. MEMORANDUM OF LEASE. Concurrently with the execution of this
Lease, Lessor and Lessee are executing Lessor's standard form memorandum of
lease in recordable form, indicating the names and addresses of Lessor and
Lessee, a description of the Premises, the Interim Term, the Lease Term and the
terms of any options to extend the Lease Term or purchase the Premises, but
omitting rent and such other terms of this Lease as Lessor may not desire to
disclose to the public. Further, upon Lessor's request, Lessee agrees to
execute and acknowledge a termination of lease and/or quit claim deed in
recordable form to be held by Lessor until the expiration or sooner termination
of the Lease Term.
55. NO BROKERAGE. Lessor and Lessee represent and warrant to each
other that they have had no conversation or negotiations with any broker
concerning the leasing of the Premises. Each of Lessor and Lessee agrees to
protect, indemnify, save and keep harmless the other, against and from all
liabilities, claims, losses, costs, damages and expenses, including attorneys'
fees, arising out of, resulting from or in connection with their breach of the
foregoing warranty and representation.
56. WAIVER OF JURY TRIAL AND PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES. LESSOR AND LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT
TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
LEASE, THE RELATIONSHIP OF LESSOR AND LESSEE, LESSEE'S USE OR OCCUPANCY OF THE
PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY
REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE
RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES
FROM LESSOR WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY LESSEE AGAINST LESSOR OR ITS
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
LEASE OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY
LESSEE OF ANY RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL
ASPECT OF THEIR BARGAIN.
57. RELIANCE BY ENVIRONMENTAL INSURER. Lessee acknowledges and agrees
that Environmental Insurer may rely on the representations, warranties and
covenants set forth in this
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Lease, that Environmental Insurer is an intended third-party beneficiary of
such representations, warranties and consents and that Environmental Insurer
shall have all rights and remedies available at law or in equity as a result of
a breach of such representations, warranties and covenants, including to the
extent applicable, the right of subrogation.
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease as
of the date first above written.
LESSOR:
FFCA ACQUISITION CORPORATION, a
Delaware corporation
By:
-------------------------------
Printed Name: Xxxxx X. Xxxxx
Its: Senior Vice President
Signed, sealed and delivered Corporte Finance
in the presence of:
-------------------------------- --------------------------------
Witness Signature Witness Signature
LESSEE:
LESSEE'S FEDERAL TAX IDENTIFICATION ROADHOUSE GRILL, INC., a Florida
NUMBER: corporation
----------------------------
By:
------------------------------
Printed
Name:
------------------------------
Signed, sealed and delivered Its:
in the presence of: ------------------------------
-------------------------------- --------------------------------
Witness Signature Witness Signature
STATE OF FLORIDA
COUNTY OF
-----------------------
The foregoing instrument was acknowledged before me this
_____ day of ___________, 1998, by _____________________________, the
___________________________ of ROADHOUSE GRILL, INC., a Florida corporation, on
behalf of the corporation.
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---------------------------------------------
Signature of Notary Public - State of Florida
----------------------------------------------------
Print, type or stamp commissioned name of Notary
Personally known _________ OR Type of Identification
Produced:__________________
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STATE OF ARIZONA
COUNTY OF MARICOPA
The foregoing instrument was acknowledged before me _____ day of
___________, 1998, by Xxxxx X. Xxxxx, Senior Vice President, Corporate Finance
of FFCA ACQUISITION CORPORATION, a Delaware corporation, on behalf of the
corporation.
---------------------------------------------
Signature of Notary Public - State of Arizona
----------------------------------------------------
Print, type or stamp commissioned name of Notary
Personally known _________ OR Type of Identification
Produced:__________________
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EXHIBIT A
LEGAL DESCRIPTION
42
EXHIBIT B
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "Amendment") made as of
_______________, 1998, by and between FFCA ACQUISITION CORPORATION, a Delaware
corporation ("Lessor"), whose address is 00000 Xxxxx Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, and ROADHOUSE GRILL, INC., a Florida corporation
("Lessee"), whose address is 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000, hereby amends that certain lease between Lessor and Lessee dated
as of ______________, 1998 (the "Lease"), with respect to certain real
property, together with all buildings, structures, fixtures and improvements
located thereon legally described on EXHIBIT A attached hereto (the
"Premises"). Any capitalized terms not herein defined shall have the meanings
ascribed thereto in the Lease.
W I T N E S S E T H :
WHEREAS, pursuant to Section 4.B of the Lease, Lessor and Lessee
agreed to execute a First Amendment to the Lease in the form hereof on the date
of the Final Disbursement Date; and
WHEREAS, Lessee has requested that Lessor make the Final Disbursement
and Lessor is prepared to make the Final Disbursement; and
WHEREAS, in connection with Lessor making the Final Disbursement to
Lessee, Lessor and Lessee desire to amend certain provisions of the Lease as
set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lessor and Lessee agree as follows:
1. The terms and provisions of this Amendment shall be deemed
effective on and as of _____________, 199__ (the "Effective Date").
2. Section 1 of the Lease shall be amended by deleting the
definitions of "Base Annual Rental," "Completion Date," and "Lessor's
Total Investment" and substituting in lieu thereof the following:
"BASE ANNUAL RENTAL" means, as of the date of this
Amendment, $___________________, as such Base Annual Rental shall be
increased from time to time as contemplated by Section 4 of the Lease.
"COMPLETION DATE" means _______________, 199__.
"LESSOR'S TOTAL INVESTMENT" means $_____________.
43
3. Lessee warrants and represents to Lessor that (i) all
necessary actions have been taken to authorize the execution of this
Amendment by Lessee, (ii) the persons who have executed this Amendment
on behalf of Lessee are duly authorized to do so, and (iii) this
Amendment constitutes the legal, valid and binding obligation of
Lessee, enforceable against Lessee in accordance with its terms.
4. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original.
5. In all other respects the Lease shall remain unchanged and
in full force and effect. The Lease, as amended by this Amendment,
shall continue to be binding upon the Lessor and Lessee and their
permitted successors and assigns.
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Amendment
effective as of the Effective Date.
LESSOR:
FFCA ACQUISITION CORPORATION, a
Delaware corporation
By:
----------------------------------
Printed Name: Xxxxx X. Xxxxx
Signed, sealed and delivered Its: Senior Vice President
in the presence of: Corporate Finance
-------------------------------- -------------------------------------
Witness Signature Witness Signature
LESSEE:
ROADHOUSE GRILL, INC., a Florida
corporation
By:
----------------------------------
Printed
Name:
---------------------------
Signed, sealed and delivered Its:
in the presence of: ---------------------------------
-------------------------------- -------------------------------------
Witness Signature Witness Signature
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STATE OF FLORIDA
COUNTY OF
------------------
The foregoing instrument was acknowledged before me this
_____ day of ___________, 1998, by _____________________________, the
___________________________ of ROADHOUSE GRILL, INC., a Florida corporation, on
behalf of the corporation.
---------------------------------------------
Signature of Notary Public - State of Florida
----------------------------------------------------
Print, type or stamp commissioned name of Notary
Personally known _________ OR Type of Identification
Produced:__________________
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STATE OF ARIZONA
COUNTY OF MARICOPA
The foregoing instrument was acknowledged before me _____ day of
___________, 1998, by Xxxxx X. Xxxxx, Senior Vice President, Corporate Finance
of FFCA ACQUISITION CORPORATION, a Delaware corporation, on behalf of the
corporation.
---------------------------------------------
Signature of Notary Public - State of Arizona
----------------------------------------------------
Print, type or stamp commissioned name of Notary
Personally known _________ OR Type of Identification
Produced:__________________
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