AGREEMENT FOR PURCHASE AND SALE
AGREEMENT
FOR PURCHASE AND SALE
THIS
AGREEMENT FOR PURCHASE AND SALE (this “Agreement”)
is
dated as of the Effective Date (as defined in Section
5(a)
hereof)
between XXXXX’X ROADHOUSE, INC., a Tennessee corporation, having an office at
0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000 (the “Seller”),
and
WACHOVIA DEVELOPMENT CORPORATION, a North Carolina corporation, or its assigns
(subject to the provisions of Section
21(l)
hereof),
having an office at One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000 (the “Buyer”).
W
I T N E S S E T H:
WHEREAS,
Seller is willing to sell all of its rights, title and interests in that certain
Property (as hereinafter defined) to Buyer, and Buyer is willing to purchase
all
of Seller’s rights, title and interests in the Property from Seller in an
“as-is” condition, upon the terms and conditions hereinafter set forth;
and
WHEREAS,
the parties’ intent is for Seller to lease back the Property from Buyer upon the
Closing (as hereinafter defined).
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Description
of Property.Subject
to the terms and conditions of this Agreement, Seller agrees to sell to Buyer,
and Buyer agrees to purchase from Seller, all of Seller’s right, title and
interest in and to the following property and rights (excluding, specifically,
any Personal Property (as hereinafter defined)):
(a) those
certain parcels of land as generally scheduled by xxxxxx xxxxxxx, xxxx, xxxxx
and Seller’s store number in Exhibit
A
attached
hereto (collectively, the “Land”);
(b) all
rights, privileges, and easements appurtenant to the Land, including, without
limitation, all water and air rights, mineral rights, rights of way, roadways,
parking areas, roadbeds, drainage rights, alleyways or other appurtenances
used
in connection with the Land and any after-acquired title or reversion relating
to the Land (collectively, the “Appurtenant
Rights”);
(c) all
improvements and fixtures now located on the Land and to the extent comprising
real estate under applicable law, including, without limitation, any and all
buildings, structures, parking areas, landscaping improvements and any outdoor
seating areas, gazebos, patio areas or decks, and all permanently affixed
apparatus and equipment required for the operation of such improvements and
fixtures to the extent of Seller’s right, title and interests therein (and each
of which are hereby agreed to be excluded from Personal Property) such as pumps,
motors, machinery, treatment and storage facilities, heating and air
conditioning systems, electrical and power systems, plumbing, pump, pipe and
lifting systems, fire prevention and alarm systems, built-in vacuum and cleaning
systems, affixed and installed refrigeration,
(d) with
respect to each Individual Property (as hereinafter defined), all of Seller’s
transferable and assignable right, title and interest: (i) as landlord in and
to
all leases, subleases, tenancies and rental or occupancy agreements, if any,
granting possessory rights in, on or covering the Land or Improvements (or
any
portions thereof), together with all modifications, extensions and amendments
thereof, as listed and described in Exhibit
B attached
hereto, together with such other leases of the Improvements as may be made
prior
to the Closing (as hereinafter defined) in accordance with the terms of this
Agreement (individually, a “Lease”,
and
collectively, the “Leases”); (ii)
all
guarantees, warranties and indemnities, if any, pertaining to the ownership
or
the day-to-day operations of the Land and the Improvements (as opposed to the
day-to-day business operations within the Improvements), or the management
and
the maintenance of the Land and the Improvements which would benefit Buyer
after
the Closing (collectively, the “Warranties”); and
(iii)
to the extent assignable or transferable by Seller without consent or approval
of any third party, (A) all plans, drawings, specifications and blueprints,
surveys, engineering reports, environmental reports and other geo-technical
descriptions or materials relating in any way to the Land, Improvements,
Appurtenant Rights or Leases, and (B) all permits, occupancy and use
certificates, variances, waivers, and approvals from any governmental or
quasi-governmental entity or instrumentality affecting the ownership or the
day-to-day operations of the Land and the Improvements (as opposed to the
day-to-day business operations within the Improvements) or the maintenance
of
the Land or the Improvements (collectively, the “Property
Permits”).
PROVIDED,
HOWEVER, that Buyer acknowledges and agrees that Buyer is agreeing to purchase
and shall purchase the Property in its “AS-IS, WHERE-IS” condition, subject to
Buyer’s inspection rights set forth in Section
5
hereof.
All
of
the property, rights and privileges described above in this Section
1
are
collectively referred to as the “Property”.
The
portion of the Property demised under each Closing Lease (as hereinafter
defined) is herein referred to as an “Individual
Property”.
Notwithstanding anything to the contrary set forth in this Agreement, including
under this Section
1,
Seller
and Buyer agree that Seller shall not be obligated to transfer, and is not
transferring, to Buyer as part of the Leases, Warranties and/or Property
Permits, in part or in whole, any licenses, trademarks, trade dress, service
marks, logos or insignia, any written or oral contracts, agreements,
indemnities, licenses, permits and/or approvals pertaining to the purveying,
inventory or supply of food and/or stocking, sale or consumption of alcoholic
beverages upon any Individual Property, any signage boards or any intellectual
property rights whatsoever as may be owned or exist in favor of Seller, or
its
respective successors or assigns, pertaining to the business(es) operating
or to
operate upon or within any portion of the Land or Improvements.
2
PROVIDED,
FURTHER, HOWEVER, Seller and Buyer agree that Seller has not agreed to transfer,
shall also not be obligated to transfer, and is not transferring to Buyer as
part of the assets to be conveyed hereunder any of Seller’s right, title and/or
interests in any Personal Property (as hereinafter defined). As used herein,
“Personal
Property”
shall
mean, with respect to each Individual Property and the Property, collectively,
all of the following, whether now or hereafter owned or acquired by Seller,
or
in which Seller has any interest: all property excluded from the Leases,
Warranties and Property Permits as noted above, all furniture, trade fixtures,
sign posts, sign standards, signage panels, any other fixtures (including,
but
not limited, to window grills and Seller’s branded bar-tops) containing
protected intellectual property owned by or licensed to Seller, any accounts
or
deposits, financial information, books and/or records of Seller or any tenant(s)
under any Lease or under any Closing Lease, neon signage, food and customer
service equipment (whether unattached or attached to the Improvements by bolts
and screws and/or by utility connections), removable equipment, any and all
inventory existing within or upon any Individual Property (including, without
limitation, supplies, foods and beverages), and other items of personal property
now owned, acquired, held or used by Seller in its restaurant operations and
all
additions to, substitutions for and replacements of the foregoing.
PROVIDED,
FURTHER, HOWEVER, notwithstanding anything to the contrary in this Agreement,
including in this Section
1,
Seller
and Buyer agree, within ten (10) business days after the Effective Date, to
enter into a letter of intent (a “LOI”)
with
respect to any Individual Property that is subject to a pre-existing right
of
first refusal to purchase or other purchase right that grants to a third party
the right to require Seller to offer to sell such Individual Property to it
(individually, a “Separate
Restaurant”
and
collectively, the “Separate
Restaurants”).
The
terms and conditions of any LOI or agreement of Seller to sell and transfer
a
Separate Restaurant shall be governed solely by the LOI and any resultant sales
contract pertaining thereto for such Separate Restaurant and not by this
Agreement except to the extent that certain provisions of this Agreement may
be
incorporated by reference into a LOI and subsequent sales contract, as
applicable. In the event that the holder of a pre-existing right of first
refusal to purchase or other purchase right with respect to a Separate
Restaurant exercises such right, no breach or default by Seller deemed to have
occurred under this Agreement, Seller shall have no obligation under this
Agreement or otherwise to sell and transfer such Separate Restaurant to Buyer
(or to execute any related Closing documents, including any Closing Lease,
pertaining thereto), and the Purchase Price (as hereinafter defined) shall
be
reduced by the portion thereof allocated to any such Separate Restaurant not
sold and transferred to Buyer. By its execution of this Agreement, Seller has
no
intention to activate or trigger the rights of any third party pursuant to
an
existing right of first refusal to purchase or other purchase right. In the
event that Seller is able to obtain a Waiver (as hereinafter defined) of such
right of first refusal to purchase or other purchase right with respect to
a
Separate Restaurant prior to the execution of a LOI and/or sales contract
resulting therefrom for such Separate Restaurant, Seller and Buyer shall take
action to cause this Agreement to apply to and to govern the terms of the
proposed sale of such Separate Restaurant to Buyer. For purposes of this
Agreement, the term “Waiver”
shall
mean an irrevocable waiver or other evidence in form acceptable to Seller from
the holder of a right of first refusal or other prior rights to purchase a
Separate Restaurant to the effect that such holder has declined to exercise
such
right so that Seller may sell and transfer such Separate Restaurant without
violating such right of first refusal or other prior right to
purchase.
3
2. Purchase
Price.The
purchase price for the Property (the “Purchase
Price”)
is, in
the aggregate, SEVENTY TWO MILLION THREE HUNDRED EIGHT THOUSAND ONE HUNDRED
FIFTY NINE AND 00/100 DOLLARS ($72,308,159.00), which Purchase Price is
allocated among the Individual Properties pursuant to Schedule
2
attached
hereto and incorporated herein fully by this reference.
3. Payment
of Purchase Price.The
Purchase Price shall be paid as indicated below:
(a) By
cash
or immediately available funds, or by check subject to collection, to the order
of Xxxxxxx Title Guaranty (in this capacity, “Escrow
Agent”)
located at 200 So. College Street, Suite 1640, Charlotte, North Carolina 28202,
Attention: Xxxxxx Xxxxxx, Tel: (000) 000-0000, Fax: (000) 000-0000, the amount
of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) (the “Deposit”),
within two (2) business days of the Effective Date (as hereinafter defined)
to
be held in accordance with the terms of this Agreement and Escrow Agent’s
standard strict joint order escrow instructions; and
(b) The
balance of the Purchase Price shall be paid by Buyer to Seller in immediately
available funds at the Closing.
4. Closing
and Closing Date.The
consummation of the sale by Seller and the purchase by Buyer of the Property
(the “Closing”)
shall
take place through the mail or electronically at the offices of Escrow Agent,
within thirty (30) days after the expiration of the Inspection Period, as
hereinafter defined, on a date mutually designated by Seller and Buyer, or
upon
such earlier or later date that is mutually agreed to by Seller and Buyer,
but
in all events prior to the closing contemplated under that certain Stock
Purchase Agreement executed on or about this same date between Seller’s parent
and sole shareholder, CBRL Group, Inc, a Tennessee corporation (“CBRL”),
as
seller thereunder, and the proposed buyer thereunder (the “Stock
Purchase Agreement”)
(the
“Closing
Date”);
provided, however, in no event shall the Closing occur prior to November 22,
2006.
5. Buyer’s
Inspection and Review Rights.
(a) Seller
has delivered or shall deliver to Buyer the following, if and to the extent
the
same may exist, with respect to Seller and the Property either (i) within five
(5) business days after establishment of the Effective Date of this Agreement
to
the extent such items are in Seller’s possession, or (ii) within two (2)
business days following Seller’s actual receipt thereof:
(1) with
respect to each Individual Property, copies of surveys, title insurance
commitments, title insurance policies or other title information in the
possession of Seller or Seller’s counsel, including underlying title
documents;
(2) with
respect to each Individual Property, copies of all structural and mechanical
reports, environmental audit reports, and soils reports and appraisals for
such
Individual Property in the possession of Seller or Seller’s
counsel;
4
(3) with
respect to each Individual Property, copies of all zoning information, studies,
subdivision plats, right of way agreements and utility agreements in the
possession of Seller or Seller’s counsel;
(4) with
respect to each Individual Property, copies of all Property Permits and
Warranties and as-built building plans and specifications respecting the
Improvements in the possession of Seller or Seller’s counsel;
(5) with
respect to each Individual Property, copies of all Leases and any other
agreements affecting such Individual Property that would be binding upon Buyer
following the Closing and would require more than thirty (30) days prior notice
to terminate;
(6) with
respect to each Individual Property, copies of all certificates of occupancy
or
equivalent for the use and occupancy of such Individual Property in the
possession of Seller or Seller’s counsel;
(7) with
respect to each Individual Property, copies of all of the real property tax
assessments and tax bills for the current tax year and the two (2) previous
tax
years (if applicable); and
(8) copies
of
the charter and bylaws of Seller.
Buyer
acknowledges and agrees that as of the Effective Date it has received all of
the
items or information required to be delivered by Seller under this Section
5,
except
those required from Seller under Sections
5(a)(4) and 5(a)(8)
hereof.
Buyer further acknowledges and agrees that some of the information and materials
provided with respect to the Property, or any portion(s) thereof, by Seller
in
accordance with the above has been or may be obtained from or produced by a
variety of sources (other than Seller), and that neither Seller nor any of
its
representatives has made any independent investigation or verification of such
information or materials that were not prepared by Seller (collectively, the
“Third
Party Prepared Information”),
and
Seller makes no representations as to the accuracy, truthfulness or completeness
of such Third Party Prepared Information. The review and reliance upon the
contents of such Third Party Prepared Information by Buyer or any of its agents,
consultants, successors or assigns shall be at Buyer’s and such reviewers’ own
risk.
The
documents and information described in this Section
5(a)
are
referred to in this Agreement as the “Inspection
Documents”.
As
used herein, the term “Inspection
Period”
shall
mean that period of time starting on the Effective Date of this Agreement and
terminating on the first to occur of (i) the Closing Date or (ii) thirty (30)
days following the date upon which Buyer has received copies of the Inspection
Documents. As used herein, the term “Effective
Date”
shall
mean that date upon which the last of Buyer and Seller has executed this
Agreement.
(b) Prior
to
the expiration of the Inspection Period, Buyer may terminate this Agreement
with
respect to the Property or with respect to any one or more Individual Properties
(each, a “Terminated
Property”),
in
the event that any of the remaining items set forth above in Section
5(a)(4) or Section 5(a)(8)
hereof
either are not delivered to Buyer pursuant to the terms hereof, or are not
approved by Buyer, or for any other reason in Buyer’s sole discretion. In such
event, Buyer shall receive a refund of the Deposit (or the pro rata portion
allocable to such
5
(c) Notwithstanding
anything to the contrary set forth in this Section
5
or
elsewhere in this Agreement, Buyer agrees that the Property, and each component
thereof, including, as applicable, each Individual Property, conveyed to Buyer
shall be conveyed by Seller subject to the Permitted Exceptions (as hereinafter
defined).
6. Seller’s
Termination Rights.
Notwithstanding anything to the contrary as may be set forth elsewhere in this
Agreement, including, without limitation, in Sections
5, 9, 12, 14 and 16(a)
hereof,
Seller may, upon not less than two (2) business days’ written notice to Buyer,
without any continuing or additional liability or obligation to Buyer or any
affiliate of Buyer, any co-investor of Buyer, any successor or assign of Buyer
hereunder or otherwise (except for return of the Deposit to Buyer) terminate
this Agreement at any time prior to the Closing upon payment by Seller to Buyer,
of Buyer’s Out of Pocket Expenses (as hereinafter defined) that relate only to
this Agreement, and upon return to Buyer of the Deposit, in the event that:
(a)
Buyer
invokes rights to terminate this Agreement as to any one or more Terminated
Properties, or either of the other buyers (individually, an “Other
Buyer”;
and
collectively, the “Other
Buyers”)
under
the separate Agreements for Purchase and Sale listed in Schedule
6
attached
hereto and incorporated herein by reference (the “Other
Agreements”)
invokes rights to terminate either of the Other Agreements, as applicable,
as to
any one or more “Terminated Properties” (as such term is defined in each of the
Other Agreements, each an “Other
Terminated Property”,
and
collectively, the “Other
Terminated Properties”),
which
results in a termination of this Agreement and/or the Other Agreements with
respect to more than five (5) Terminated Properties and/or Other Terminated
Properties in the aggregate (excluding any Separate Restaurants that Seller
cannot convey at the Closing or the closings under the Other Agreements as
a
result of the existence of a right of first refusal to purchase or other
purchase right, and excluding store number 319 as identified on "Exhibit A"
attached to that certain
Agreement for Purchase and Sale between Trustreet Properties, Inc., as buyer,
and Seller, dated as of the date hereof (the "Trustreet
Agreement"),
and
as further discussed in
Schedule 14(a)(7)
attached
to the Trustreet Agreement, to the extent Trustreet Properties, Inc. terminates
the Trustreet Agreement with respect to such store number 319 in accordance
with
Section
12
of the
Trustreet Agreement);
provided, however, Buyer and Other Buyers shall each have the right, but not
the
obligation, upon joint written notice to Seller from Buyer and all Other Buyers
not less than two (2) business days prior
6
7. Closing
Costs.Seller,
at its expense and at Closing, shall pay for all transfer taxes and recordation
taxes (if any), all recording and filing charges in connection with instruments
by which Seller conveys the Property, all costs and fees in connection with
obtaining an updated ALTA survey of each Individual Property certified to Buyer
and to Buyer’s title insurance company (the “Title
Company”),
all
costs and fees in connection with Buyer’s obtaining an owner’s title insurance
policy for each Individual Property with extended coverage and together with
such endorsements as required by Buyer in its commercially reasonable discretion
and customary for transactions such as the Transaction (and in all events
excluding any and all premiums and costs of any title insurance policies and
associated endorsements required by any lender of Buyer, if any), all costs
and
fees in connection with Buyer’s obtaining for each Individual Property a Phase I
environmental report and an appraisal, all costs and fees in connection with
Buyer’s obtaining a confirmation of the zoning classification for each
Individual Property (including, without limitation, the fees and costs of
engaging a zoning consultant to prepare a zoning report for each Individual
Property), the reasonable fees and costs of Seller’s legal counsel (including,
without limitation, Seller engaged local counsel) and Wolf, Block, Xxxxxx and
Xxxxx-Xxxxx LLP (“Wolf
Block”),
as
counsel to Buyer and the Other Buyers. Notwithstanding
anything to the contrary set forth in this Section
7
or
elsewhere in this Agreement, Seller’s obligations hereunder as they pertain to
the Buyer’s costs, expenses and reasonable legal fees and costs shall apply only
to such costs and expenses incurred directly by Buyer and not to such costs,
expenses, legal fees or otherwise of any co-investor of Buyer, any successor
or
assign of Buyer hereunder or otherwise, including, without limitation, under
any
of the Other Agreements.
7
8. Tax,
Rent and Expense Proration.With
respect to each Individual Property, Seller and Buyer agree that because Seller
and Buyer are entering into a Closing Lease with respect to such Individual
Property, neither ad valorem property taxes on such Individual Property, nor
any
other expenses such as utilities, maintenance and other operating expenses
incurred in connection with such Individual Property, shall be prorated as
of
the Closing Date; provided, however, that Seller agrees to provide to the Title
Company such documents and/or indemnities together with such deposits or payment
direction as the Title Company may reasonably require as to each such Individual
Property to limit any exception for ad valorem property taxes in any title
insurance policy delivered hereunder only to ad valorem property taxes and
assessments, if any, applicable to each such Individual Property that are not
yet due and payable.
9. Risk
of Loss.Risk
of
loss prior to the Closing shall be on Seller. If, prior to the Closing and
subject to the provisions of Section
6
hereof,
any Individual Property shall be materially damaged by fire or other casualty
with a cost to repair of more than Fifty Thousand Dollars ($50,000.00), and
if
any destruction or damage is not repaired by Seller prior to the Closing or
arrangements for repairs satisfactory to Buyer are not made prior to the Closing
so that such Individual Property shall, in the opinion of Buyer, be in
substantially as good a condition at the Closing as existed prior to such damage
or destruction, then this Agreement may, at the option of Buyer (and without
Seller being deemed in breach or default hereof to any extent for having failed
to reconstruct such Individual Property), be terminated with respect to such
Individual Property, Buyer shall receive a refund of the pro rata portion of
the
Deposit allocable to such Individual Property, the Purchase Price payable by
Buyer under this Agreement shall be reduced by the portion thereof allocated
to
such Individual Property as set forth on Schedule
2
hereto,
and neither party shall have any further liability hereunder with respect to
such Individual Property. If, after the occurrence of any such casualty, this
Agreement is not so terminated with respect to such Individual Property by
Buyer
and Buyer elects to proceed to purchase such Individual Property in the damaged
condition at Closing, nothing under this Agreement shall be construed so as
to
modify and/or amend the Seller’s or Buyer’s subsequent rights or obligations
with respect to such Individual Property under terms and conditions of the
applicable Closing Lease pertaining to such Individual Property, including
Seller’s thereunder as Tenant (as hereinafter defined), and Seller, as Tenant,
shall retain all obligations, rights and privileges with respect to the
subsequent repair and restoration of such Individual Property and collection,
payment, disbursement and retention of insurance proceeds as may be provided
for
by the terms and conditions of the subject Closing Lease.
10. Insurance
Policies.Seller
shall maintain all insurance policies affecting the Property that Seller has
in
place as of the end of the Effective Date through the date of Closing Date
(subject to customary renewals and extensions and insurance company imposed
modifications that are immaterial in substance); provided, however, that the
foregoing shall not require Seller to assign any such insurance policies or
coverages to Buyer or any designee, assign or successor of Buyer, and Seller
may
amend and modify such coverage, in part or in whole, or enter into new policies
with different insurance providers for similar coverages so long as such
coverages as generally provided thereby are substantially equivalent to or
better than Seller’s insurance policies and coverages in place as of the
Effective Date hereof. Seller shall provide written notice to Buyer of any
such
modifications, amendments or substitutions made by it in accordance with the
foregoing.
8
11. Brokerage
Commissions.Each
of
Seller and Buyer represents and warrants to the other that it has not dealt
with
any broker or third party entitled to a commission or fee in connection with
the
transaction contemplated by this Agreement (the “Transaction”).
In
the event of a breach by a party hereto of its foregoing representation and
warranty, the breaching party agrees to save, defend, indemnify and hold
harmless the non-breaching party from and against any claims, losses, damages,
liabilities and expenses, including, without limitation, reasonable attorneys’
fees arising from such breach. The obligations of this Section
11
shall
survive the Closing or earlier termination of this Agreement.
12. Eminent
Domain.If,
prior
to the Closing, all or any part of an Individual Property is taken by eminent
domain or if condemnation proceedings are commenced with respect to all or
any
part of an Individual Property, Seller shall give Buyer prompt notice of such
taking, and Buyer shall have the option, by written notice to Seller and subject
to the provisions of Section
6
hereof,
to terminate this Agreement with respect to such Individual Property if the
taking is the entirety of an Individual Property or amounts to a Material Taking
(as defined hereinafter). If Buyer elects to terminate this Agreement with
respect to such Individual Property, Buyer shall receive a refund of that
portion of the Deposit allocable to such Individual Property, the Purchase
Price
payable by Buyer under this Agreement shall be reduced by the portion thereof
allocated to such Individual Property as set forth on Schedule
2
hereto,
and neither party shall have any further liability hereunder with respect to
such Individual Property. If, after the occurrence of any such taking, this
Agreement is not so terminated with respect to such Individual Property by
Buyer
as contemplated by this Section
12
and
Buyer elects to proceed to purchase such Individual Property in the damaged
condition at Closing, nothing under this Agreement shall be construed so as
to
modify and/or amend the Seller’s or Buyer’s subsequent rights or obligations
with respect to such Individual Property under terms and conditions of the
applicable Closing Lease pertaining to such Individual Property, including
Seller’s thereunder as Tenant, and Seller, as Tenant, shall retain all
obligations, rights and privileges with respect to the subsequent repair and
restoration of such Individual Property and the collection, payment,
disbursement and retention of awards made for such taking as may be provided
for
by the terms and conditions of the subject Closing Lease. The term “Material
Taking”
as
used
herein shall mean a partial or entire taking or commencement of condemnation
proceedings whereby (a) the access points to the Individual Property are or
would be materially impaired such that such Individual Property does not or
would not have commercially reasonable access for the business operations
conducted thereon and is thus effectively rendered untenantable, (b) ten percent
(10%) or more of the parking area upon the Land of the Individual Property
is
lost, or the parking capacity serving the subject Individual Property is
otherwise reduced below that required by local zoning or other applicable
regulations or requirements, (c) any portion of the Improvements is permanently
closed or required to be removed such that the remaining portions of the
Improvements upon the Land of the subject Individual Property are deemed to
be
uneconomical for Seller’s future business operations under the Closing Lease, or
(d) Seller’s ability to otherwise conduct its business operations within and
upon the Land and Improvements will be materially and adversely
affected.
13. Seller
Obligations.
(a) Between
the date of this Agreement and the Closing, Seller shall cause the Property
to
be maintained in substantially the same condition and repair as currently being
9
(b) Seller
further agrees, with respect to each Individual Property from the Effective
Date
and through consummation of Closing on the Closing Date:
(i) intentionally
omitted;
(ii) not
to
enter into any transaction with respect to or affecting such Individual Property
which would bind Buyer following the Closing Date, without Buyer’s prior written
consent, which consent shall not be unreasonably withheld, conditioned or
delayed by Buyer if the proposed transaction would not have a material adverse
effect upon the post-Closing Date operations of the subject Individual
Property;
(iii) not
to
sell, transfer, pledge, encumber or grant any interest in such Individual
Property, or any part thereof, in any form or manner whatsoever or otherwise
perform or permit any act which would prevent Seller’s full performance of its
obligations hereunder;
(iv) not
to
incur any additional indebtedness secured by such Individual Property or any
portion thereof, outside Seller’s ordinary course of business and which cannot
and will not be satisfied and paid in full at or prior to the
Closing;
(v) not
to
enter into any contracts, agreements, guarantees, warranties and indemnities,
written or oral, affecting the ownership, operation, management and maintenance
of the Land, Improvements, Personal Property and Leases, which would be binding
upon Buyer after the Closing (collectively, the “Contracts”)
without Buyer’s prior written consent, which consent may be withheld in Buyer’s
sole discretion;
(vi) to
file
all tax returns required by the taxing authorities in connection with the
ownership and operation of such Individual Property, and to pay all taxes and
special assessments levied against or incurred in connection with the ownership
or operation of such Individual Property, as such taxes and special assessments
become due and payable;
(vii) promptly
to advise Buyer in writing as such matters come within Seller’s Knowledge (as
hereinafter defined) of any (A) material changes, additions, deletions or
modifications in or to any of the Inspection Documents and promptly provide
Buyer with or make available to Buyer true, complete and correct copies of
such
changes, additions, deletions or modifications and (B) changes in circumstances
which would render the representations and warranties made by Seller herein
false or misleading in any material respect; and
10
(viii) to
continue to give Buyer access to the Property from the Effective Date hereof
to
the Closing Date, or, if applicable, such earlier date upon which this Agreement
may be terminated by either or both Seller or Buyer as provided for by the
terms
of this Agreement; provided, however, that (A) Buyer agrees to provide Seller
with reasonable prior notice of Buyer’s desired access to the Property, or any
portion thereof, and shall, if deemed necessary and/or appropriate by Seller,
not enter such portions of the Property except in the accompaniment of one
or
more of Seller’s representatives, and (B) Buyer agrees to use reasonable efforts
not to interfere with the operation of Seller’s business in conducting Buyer's
inspections of each Individual Property.
The
term
“Seller’s Knowledge” (or
words
of like effect), when used to qualify a representation, warranty or other
statement contained in this Agreement, shall mean the actual knowledge (without
independent investigation) of any of the following officers of
Seller:
(i)
Xxxxxx Xxxxx - Chief Executive Officer; (ii) Xxx Xxxxxxxxx - Sr. Vice-President
of Finance and Accounting; (iii) Xxxxx Xxxxxxxx - Sr. Vice-President of
Operations, (iv) Xxx Xxxxxx -Sr. Vice President, Development & Operations
Innovation, and (v) Xxxx Xxxxxxxx--Vice President, Finance.
14. Conditions
Precedent to Parties’
Obligations Regarding Closing.
(a) Conditions
Precedent to Buyer’s Obligations Regarding Closing.
In
addition to any other conditions set forth in this Agreement, Buyer’s obligation
to consummate the Transaction is expressly contingent upon the following
provisions, any of which may be waived by written notice from Buyer to Seller:
(1) Seller
shall have complied with and otherwise performed each of the covenants and
obligations of Seller set forth in this Agreement (including, without
limitation, delivery of all of the documents and other items required of Seller
pursuant to Section
15(a)
hereof);
(2) all
representations and warranties of Seller as set forth in this Agreement shall
be
true and correct in all material respects as of the Closing Date;
(3) there
shall have been no material adverse change to the title of any Individual
Property (including, without limitation, the addition of any mechanic’s or
materialman’s lien or other encumbrance) since the date of issuance by the Title
Company of an owner’s title insurance commitment for each Individual Property
with respect to this Agreement, and the Title Company shall be prepared to
issue
to Buyer as of the Closing Date the endorsements required by Buyer in its
commercially reasonable discretion as contemplated by Section
7
hereof
to the owner’s title insurance policy on the Land and the Improvements for each
Individual Property, subject only to the Permitted Exceptions;
(4) there
shall have been, as determined by Buyer in its commercially reasonable
discretion, no material adverse change in the status of any matter reviewed
by
Buyer under this Agreement between the expiration of the Inspection Period
and,
if later, the Closing Date;
(5) there
shall not have occurred any material adverse condition or material adverse
change in or affecting, or the occurrence of any circumstance or condition
that
11
(6) except
for (A) normal wear and tear, (B) remodeling commenced by Seller prior to the
Closing Date, and (C) subject to the provisions of Sections
9 and 12
hereof,
damage resulting from casualty and condemnation only, each Individual Property
(other than any Individual Property as to which this Agreement has been
terminated as provided in Sections
9 or 12
hereof)
shall be in substantially the same condition on the Closing Date as existed
as
of the Effective Date and no material adverse change shall have occurred with
respect to such Individual Property since the Effective Date;
(7) except
as
set forth on Schedule
14(a)(7)
attached
hereto and incorporated herein, Seller shall not have, and to Seller’s
Knowledge, no agent of Seller shall have, received any notice from any city,
county or any governmental authority of any taking of the Property, or any
portion of the Property, by eminent domain or similar proceeding, and no such
taking or other condemnation of the Property, or any portion thereof, shall
be,
to Seller’s Knowledge, threatened or contemplated by any such governmental
authority;
(8) Seller
shall have presented evidence satisfactory to Buyer and the Title Company with
respect to the right, power and authority of designated representative(s) of
Seller to execute the closing documents and consummate the Transaction. Seller
shall have obtained all consents necessary to effectuate the Transaction and
provided Buyer with evidence thereof;
(9) Seller
shall have delivered to Buyer the written consent of the Board of Directors
of
Seller to the transfer the Property from Seller to Buyer as required pursuant
to
the terms of Seller’s charter and bylaws (the “Director’s
Consent”);
and
(10) Seller
shall have delivered to Buyer written confirmation that the Seller, as tenant
under each Closing Lease (the “Tenant”),
(A)
has or will have, as of the Closing Date, equity contributions of not less
than
Seventy Five Million Dollars ($75,000,000.00), and (B) is or will be the same
entity that is the borrower under any Revolving Credit Agreement, Term Loan
Agreement, Bond Indenture or Mezzanine Loan Agreement entered into in connection
with the Stock Purchase Agreement.
With
respect to each Individual Property, if any of the foregoing conditions in
this
Section
14(a)
shall
not be satisfied prior to the Closing Date and such failure of condition, in
Buyer’s commercially reasonable discretion, has a material adverse impact on one
or more Individual Properties, Buyer may, at its election, (i) terminate its
obligations to purchase such Individual Property, (ii) waive such condition
and
complete the purchase of such Individual Property without any reduction in
the
Purchase Price, or (iii) require Seller to perform its obligations hereunder
if
such condition is reasonably susceptible to being satisfied by the payment
of
money by Seller, which amounts, however, shall not exceed the sum of $50,000
in
the aggregate as to all of the Property proposed to be conveyed pursuant to
this
Agreement and the “Property” (as such term is defined in each Other Agreements)
proposed to be conveyed pursuant to the Other Agreements, expressly excluding,
however, the costs of removing any lien(s) which is capable of being removed
solely by the payment of money. If Buyer elects to
12
(b) Conditions
Precedent to Seller’s Obligations Regarding Closing.
In
addition to any other conditions set forth in this Agreement, Seller’s
obligation to consummate the Transaction is expressly contingent upon the
following provisions, any of which may be waived by written notice from Seller
to Buyer:
(1) Buyer
shall have complied with and otherwise performed each of the covenants and
obligations of Buyer set forth in this Agreement (including, without limitation,
delivery of all of the documents and other items required of Buyer pursuant
to
Section
15(b)
hereof);
(2) all
representations and warranties of Buyer as set forth in this Agreement shall
be
true and correct in all material respects as of the Closing Date;
(3) the
closing under each of the Other Agreements shall occur concurrently with the
Closing; provided, however, if either or both of Other Buyers breach or default
in their obligations under the Other Agreements or otherwise refuse or are
unable to close under either or both of the Other Agreements concurrently with
the Closing hereunder, then, in such event, Buyer, in conjunction with any
remaining Other Buyer, shall
have the
right, but not the obligation, upon joint written notice to Seller from Buyer
and all Other Buyers not
less
than two (2) business days prior to the Closing Date, specifying the “Individual
Properties” (as defined under the Other Agreement(s)) which Other
Buyer(s) is (are) refusing to or is (are) unable to close upon and which Buyer
and/or an Other Buyer desire to
purchase
pursuant to such Other Agreement(s) and providing assignment and such other
instruments and documents in a form and content reasonably acceptable to Seller
evidencing the transfer of such purchase rights and obligations,
to
purchase
such “Individual Properties” (as defined under the Other Agreement(s)) in order
to cause the closing(s) to occur under the Other Agreement(s) and thereby to
cause the condition of this Section
14(b)(3)
to be
satisfied; and
(4) The
Closing shall occur no later than immediately prior to the closing as
contemplated under the Stock Purchase Agreement.
If
any of
the foregoing conditions in this Section
14(b)
shall
not be satisfied prior to the Closing Date, Seller may, at its election,
terminate this Agreement. In the event of any termination of this Agreement
by
Seller pursuant to this Section
14(b),
neither
Seller nor Buyer shall have any further obligations hereunder except for (i)
Buyer’s obligation to return materials delivered to or for Buyer as contemplated
in Section
5(a)
hereof
as provided therein, and (ii) Seller’s obligation to pay Buyer’s Out of Pocket
Expenses as relate solely to this Agreement (provided,
that Seller shall not be obligated to pay such Buyer's Out of Pocket Expenses
to
the extent such Buyer's Out of Pocket Expenses are duplicative of any Buyer's
Out of Pocket Expenses payable under the Other Agreements, nor to the extent
such expenses exceed the $1,750,000.00 limitation set forth hereinafter for
all
Buyer’s Out of Pocket Expenses recoverable under this Agreement and the Other
Agreements, collectively).
Upon
payment of the amounts required to be paid by Seller under this Section
14(b)
in the
event Seller terminates this
13
15. Closing
Documents.
(a) At
Closing, Seller shall deliver to Buyer the following with respect to each
Individual Property:
(1) a
duly
executed Special Warranty Deed with respect to each Individual Property, in
substantially the form applicable to each state in which each Individual
Property is located to be provided to Buyer by Seller and to be agreed upon
as
to such general form by Seller and Buyer at least five (5) days prior to the
Closing Date (the “Deed”),
which
Deed shall transfer fee simple title to the Land and Improvements comprising
each Individual Property, free from liens, encumbrances, restrictions,
rights-of-way and other matters, excepting only the Permitted Exceptions and
any
other matters consented to in writing by Buyer. As used herein, “Permitted
Exceptions”
shall
mean, as to each Individual Property, (i) all those certain matters to be listed
on Schedule
B
to
Buyer’s owner’s title insurance policy for such Individual Property as
negotiated in good faith by Buyer and the applicable title insurer issuing
Buyer’s owner’s title insurance policy, or as otherwise agreed upon by Buyer in
writing and including any mortgage or lien, if any, as may be placed by Buyer
upon Buyer’s interest(s) in such Individual Property, (ii) any easement,
condition, restriction, agreement, encumbrance of record and other title defect
which does not (individually or in the aggregate) materially and adversely
affect the current use of the Property, (iii) property taxes which are a lien
but not yet due and payable, and (iv) any laws, rules, regulations, statutes,
ordinances, orders or other legal requirements affecting any Individual
Property, including, without limitation, those relating to zoning and land
use;
(2) a
duly
executed xxxx of sale and assignment, to be provided to Buyer by Seller and
to
be agreed upon as to such general form by Seller and Buyer at least five (5)
days prior to the Closing Date (the “Xxxx
of Sale”),
by
which Seller transfers and assigns to Buyer Seller’s assignable right, title and
interest in the Warranties, the Property Permits and any other portion of the
Property that is not real property and is transferable pursuant to such Xxxx
of
Sale;
(3) an
appropriate affidavit or other evidence reasonably acceptable to Seller and
the
Title Company attesting, as to each Individual Property, to the absence of
liens, lien rights, rights of parties in possession (other than the Tenant
under
the Closing Lease for such Individual Property and the tenants under the
applicable Leases) and other encumbrances arising under Seller (other than
the
Permitted Exceptions) and naming both Buyer and the Title Company as benefited
parties, so as to enable the Title Company to delete the standard exceptions
for
such matters from Buyer’s owner’s policy of title insurance for such Individual
Property and otherwise to insure any gap period occurring between the Closing
and the recordation of the closing documents relating to such Individual
Property;
14
(4) an
original lease substantially in the form of Exhibit
C
hereto
(as the same may be amended in good faith and by mutual agreement of the parties
hereto to accommodate any comments by Seller's accountant regarding operating
lease requirements, the “Closing
Lease”)
for
each such Individual Property duly executed by Seller as the Tenant
thereunder;
(5) an
original tenant estoppel certificate in the form required under the Closing
Lease for such Individual Property, dated as of the Closing Date and duly
executed by the Tenant under such Closing Lease, if requested by a lender
acquiring at the Closing a secured mortgage, deed of trust or other pledged
interest in such Individual Property or such Closing Lease;
(6) an
original memorandum of lease reasonably acceptable to both Seller and Buyer
as
pertains to each applicable Closing Lease in recordable form as required in
the
jurisdiction in which each such Individual Property is situated, duly executed
by Seller as the Tenant thereunder;
(7) an
original subordination, non-disturbance and attornment in the form required
under the Closing Lease for such Individual Property duly executed by Seller
as
the Tenant under such Closing Lease, if requested by a lender acquiring at
the
Closing a secured mortgage, deed of trust or other pledged interest in such
Individual Property;
(8) Seller’s
counterpart of a closing statement executed by Seller;
(9) an
opinion from Seller’s counsel in a form reasonably acceptable to Buyer and its
counsel and generally customary in a transaction such as the
Transaction;
(10) a
certificate certifying to Buyer that those representations and warranties made
by Seller pursuant to the provisions of Section
19
hereof
are still true, accurate and correct in all material respects as of the Closing
Date (or to the extent any of such representations and warranties are no longer
true, accurate and correct in all material respects, containing updates or
revisions thereto), and which warranties and representations of Seller and
the
provisions of Section
19
hereof
and said closing certificate shall survive the Closing for a period of one
(1)
year;
(11) an
appropriate FIRPTA affidavit or certificate by Seller evidencing that Seller
is
not a foreign person or entity under Section
1445(f)(3)
of the
Internal Revenue Code of 1986, as amended;
(12) the
Director’s Consent;
(13) such
other documents as Buyer’s counsel or the Title Company may reasonably request
not later than three (3) business days prior to the Closing Date to evidence
Seller’s authority to execute and perform under this Agreement and to execute
and deliver all documents conveying the Property to Buyer;
(14) the
following materials, to the extent they are in Seller’s possession and have not
been previously delivered to Buyer: (i) copies of plans and
15
(15) such
other closing documents as are reasonably necessary and proper in order to
consummate the Transaction, including those (if any) required to be delivered
by
Seller pursuant to Section
5
hereof.
(b) At
the
Closing, the Deposit (subject to, if applicable, interim adjustments thereto
as
contemplated by the terms of this Agreement and as may result from the
termination of this Agreement as to any one or more Individual Properties)
shall
be credited and paid to Seller, and Buyer shall also deliver to Seller the
balance of the Purchase Price due and shall deliver to Seller the
following:
(1) each
Closing Lease duly executed by Buyer (or an affiliate thereof who is the
assignee of Buyer’s rights and obligations under this Agreement) as the landlord
thereunder;
(2) an
original memorandum of lease as pertains to each applicable Closing Lease in
recordable form as required by the jurisdiction in which each such Individual
Property is situated, duly executed by Buyer (or an affiliate thereof who is
the
assignee of Buyer’s rights and obligations under this Agreement) as the landlord
thereunder;
(3) an
original subordination, non-disturbance and attornment agreement in the form
required under the Closing Lease for such Individual Property duly executed
by
Buyer (or an affiliate thereof who is the assignee of Buyer’s rights and
obligations under this Agreement), as landlord, if requested by a lender
acquiring at the Closing a secured mortgage, deed of trust or other pledged
interest in such Individual Property or such Closing Lease;
(4) a
certificate that Buyer’s representations and warranties under Section
20
hereof
are still true, accurate and correct in all material respects as of the Closing
Date;
(5) Buyer’s
counterpart of a closing statement executed by Buyer (or an affiliate thereof
who is the assignee of Buyer’s rights and obligations under this Agreement);
and
(6) all
other
documents described in this Agreement to be executed by Buyer and all such
other
documents and papers which may be necessary to the consummation of the
Transaction as reasonably requested by Seller, Seller’s counsel or the Title
Company.
16. Default
and Remedies.
(a) Default
by Seller.
(1) In
the
event that the terms and conditions of this Agreement have been fully satisfied
by Buyer, and Seller defaults or fails to perform any of the conditions or
obligations of Seller under this Agreement as to all of the Property or the
entire Transaction or in the event any of the representations or warranties
of
Seller contained in this Agreement or in any document required by this Agreement
are not true and correct as of the Effective Date and the Closing Date in all
material respects, Buyer either may waive such default and proceed to the
16
(2) In
the
event Seller defaults
or fails to satisfy any of the conditions or obligations precedent to Buyer’s
obligations under this Agreement or fails to perform any of Seller’s obligations
under this Agreement with
respect to less than all of the Property, Buyer shall have the right to exercise
its remedies under this Section
16(a)
separately as to each Individual Property (with any return of the Deposit and
payment of Buyer’s Out of Pocket Expenses related only to this Agreement being
on a pro rata basis), and either (i) Buyer shall have the right to terminate
this Agreement with respect to the remaining Individual Properties and upon
such
termination the Deposit and Buyer’s Out of Pocket Expenses related only to this
Agreement shall be paid to Buyer pursuant to and in accordance with the terms
of
Section
16(a)(1)
hereof,
or (ii) if Buyer does not exercise such termination right, Buyer shall be
obligated to proceed to the Closing of the remaining Individual Properties
in
accordance with the terms and provisions of this Agreement.
17
(b) In
the
event that the terms and conditions of this Agreement have been fully satisfied
by Seller, and Buyer refuses or is unable to close under this Agreement within
the time limits set forth with respect to an Individual Property, Seller, as
Seller’s sole and exclusive remedy, shall be entitled to declare this Agreement
terminated with respect to such Individual Property and the Deposit allocable
to
such Individual Property shall be forfeited to Seller, and the parties shall
have no further rights or obligations with respect to each other as to such
Individual Property, except for those provisions which expressly survive the
Closing or a prior termination of this Agreement.
In such
event, Buyer and Seller shall proceed to the Closing of the remaining Individual
Properties in accordance with the terms and provisions of this Agreement;
provided, however, that Seller shall nonetheless also retain its right and
privilege to terminate this Agreement as contemplated by Section
6
hereof.
(c) The
amounts identified in Sections
16(a) and 16(b)
hereof
have been agreed upon by Seller and Buyer after due deliberation and discussion,
and constitute good faith estimates of the damages that the applicable party
would be entitled to receive in such events, the respective parties’ actual
damages being difficult, if not impossible, to ascertain. Payments made pursuant
to this Section
16
shall be
constitute full liquidated damages for any uncured default or breach under
this
Agreement and Buyer’s and Seller’s sole remedy and right of recourse against the
other party, or its successors or assigns, in the event of any uncured default
or breach by the other under this Agreement.
(d) In
the
event suit is brought to enforce or interpret all or any portion of this
Agreement or if suit is brought for liquidated damages or for any other relief
permitted under this Agreement, the party, if any, awarded costs in such suit
shall be entitled to recover, as an element of such costs, and not as damages,
its reasonable attorneys’ fees incurred in connection with such suit. Without
limiting the generality of the foregoing, attorneys’ fees shall be determined at
the normal hourly rate charged by the person doing the work, regardless of
whether said fees bear a reasonable relationship to the relief obtained. A
party
which is not entitled to recover costs in any such suit as determined by the
presiding court shall not be entitled to recover its attorneys’ fees.
Notwithstanding anything to the contrary in this Section
16(d),
in no
event shall any enforcement proceeding instituted under this Agreement be
construed to permit Buyer or Seller to institute an action requesting specific
performance.
17. ERISA
Representation.Neither
Seller nor Buyer is an “employee benefit plan” within the meaning of
Section
3(3)
of the
Employee Retirement Income Security Act of 1974, as amended, and neither
Seller’s nor Buyer’s assets constitute “plan assets” of any such “employee
benefit plan” as defined in 29 CFR Section
2510.3-101
or other
applicable law governing the definition of “plan assets” of an employee benefit
plan.
18. Notices.Any
notice required or permitted to be given under this Agreement shall be given
in
writing and sent by (a) personal delivery, (b) overnight delivery service with
proof of delivery, (c) United States registered or certified mail, postage
prepaid, or (d) legible facsimile transmission sent to the intended addressee
at
its facsimile number set forth below, or to such other address or facsimile
number or to the attention of such other person as the addressee shall have
designated by written notice sent in accordance herewith, and shall be deemed
to
have been given either at the time of personal delivery, or, in the case of
expedited delivery service or mail, as of the next business date of first
attempted delivery during the regular
18
To
Seller:
Xxxxx’x
Roadhouse, Inc.
0000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxxx 00000
Attention: Sr.
Vice
President, Finance and Accounting
Telephone: 000-000-0000
Facsimile
Number: 000-000-0000
With
copies
to: Xxxxx’x
Roadhouse, Inc.
0000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxxx 00000
Attention: Vice
President of Legal
Telephone: 000-000-0000
Facsimile
Number: 000-000-0000
And
CBRL
Group, Inc
X.X.
Xxx
000
Xxxxxxx,
Xxxxxxxxx 00000
Attn: General
Counsel
Telephone: 000-000-0000
Facsimile
Number: 000-000-0000
And
Baker,
Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC
000
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxxxxxx 00000
Attention
(to each): Xxxx Xxxxx / Xxxx X. Xxxxxx, Xx.
Telephone: 000-000-0000
/ 000-000-0000
Facsimile
Number: 000-000-0000/
000-000-0000
To
Buyer: Wachovia
Development Corporation
c/o
Wachovia Bank, National Association
One
Wachovia Center
000
Xxxxx
Xxxxxxx Xxxxxx, XX-0000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxxxxxxxx
Xxxxxxxxx
Telephone: 000-000-0000
Facsimile
Number: 000-000-0000
19
With
copies to: Wolf,
Block, Xxxxxx and Xxxxx-Xxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
Xxxxxx, Esq.
Telephone: 000-000-0000
Facsimile
Number: 000-000-0000
19. Representations
and Warranties of Xxxxxx.Xx
of the
Effective Date, Seller represents and warrants to Buyer that:
(a) Seller
is
duly organized, validly existing and in good standing under the laws of the
State of Tennessee, and has full right, power and authority to execute and
deliver this Agreement and at the Closing will have the full right, power and
authority to consummate the Transaction without obtaining any further consents
or approvals from, or the taking of any other actions with respect to, any
third
parties;
(b) this
Agreement constitutes a valid and legally binding agreement and obligation
of
Seller, enforceable in accordance with its terms, except to the extent that
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting the rights of creditors
generally, and except as enforcement is subject to equitable
remedies;
(c) there
are
no taxes, charges or assessments of any nature or description arising out of
the
conduct of Seller’s business or the operation of the Property that are due and
owing and would constitute a lien against the Property which will be unpaid
at
the Closing Date or not paid from the Purchase Price;
(d) to
Seller’s Knowledge and except as set forth in Schedule
19(d)
attached
hereto and incorporated herein by reference, (i) the obligations of Seller
with
regard to all applicable covenants, easements and restrictions against the
Property have been and are being performed in all material respects, (ii) Seller
is not currently in default
in any material respect under any agreement, order, judgment or decree relating
to the Property, and (iii) no conditions or circumstances exist which, with
the
giving of notice or passage of time, or both, would constitute a material
default or breach with respect to any of the foregoing in items (i) or (ii)
above;
(e) except
for Seller, there are no persons in possession or occupancy of the Land or
the
Improvements, or any portion thereof, nor are there any persons who have
possessory rights with respect to the Land or the Improvements, or any portion
thereof;
(f) except
for the Leases, Warranties, Property Permits, Closing Leases, Permitted
Exceptions and any other matters of record, Seller shall not, without the prior
consent of Buyer, enter into any contracts, agreements, guarantees, warranties
or indemnities, affecting the ownership, operation, management and maintenance
of the Land, Improvements or Leases (as opposed to the day-to-day business
operations within the Improvements comprising each Individual Property), or
any
part thereof, that would be binding upon Buyer or would not be terminable upon
thirty (30) days notice following Closing;
20
(g) Seller
holds all licenses with respect to the Property that are required for Seller
to
conduct its day-to-day operations of the Land and the Improvements (as opposed
to the day-to-day business operations within the Improvements), except those
licenses, if any, for which the failure to obtain would not have a material
adverse effect upon the Land or Improvements (the “Licenses”).
Each
of the Licenses is in full force and effect and in good standing, and Seller
has
not received notice of any intention on the part of the issuing authority to
cancel, suspend or modify any of such Licenses or to take any action or
institute any proceedings to effect such a cancellation, suspension or
modification which would have a material adverse effect upon the Land or
Improvements;
(h) intentionally
omitted;
(i) except
as
contemplated by the last paragraph of Section
1
of this
Agreement, no person, firm or entity, except Buyer, has, to Seller’s Knowledge,
asserted any rights in or to acquire any interest in the Property or any part
thereof;
(j) Seller
has not made an assignment for the benefit of creditors, nor has Seller filed,
or had filed against it, any petition in bankruptcy;
(k) Seller
shall not take any action that would cause any of Seller’s representations and
warranties in this Agreement to be incorrect in any material respect, and shall
promptly notify Buyer of any event or condition known to Seller that occurs
prior to the Closing which would cause any of such representations or warranties
to be incorrect or no longer correct in any material respect;
(l) except
as
set forth on Schedule
14(a)(7)
attached
hereto, Seller has received no written notice of any condemnation or eminent
domain proceedings instituted against any Individual Property or any part
thereof;
(m) Seller
has not received notice that any Individual Property or any part thereof is
subject to any building code or similar violations or remedial obligations
under
any applicable laws or that any Individual Property or any part thereof fails
to
comply with any applicable governmental regulations, laws or ordinances, except
for such violations or remedial obligations that would not have a material
adverse effect upon the Land or Improvements or require actions or expenditures
other than routine maintenance actions or expenditures;
(n) except
as
set forth on Schedule19(n)
attached
hereto and incorporated fully herein by reference, there is no litigation,
action, or other proceeding pending or, to Seller’s Knowledge, threatened
(whether such matters are brought at law, in equity or before any administrative
agency or other governmental body or instrumentality) relating to Seller, the
Property or any portion thereof, or the Transaction, that is seeking, or, in
the
reasonable opinion of Seller, is reasonably likely to result in, damages or
an
award, in the aggregate, in excess of $250,000.00;
(o) neither
Seller, nor any of its affiliates, is in violation of any Anti-Terrorism Law
(as
hereinafter defined) or engages in or conspires to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding, or attempts
to
violate, any of the prohibitions set forth in any Anti-Terrorism Law. The term
“Anti-Terrorism
Law”
shall
mean
21
(p) all
documents required or necessary to be executed by Seller pursuant to the
provisions of this Agreement shall, except to the extent that enforcement may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting the rights of creditors generally and except
as enforcement is subject to equitable remedies, be valid, binding obligations
of Seller, enforceable in accordance with their terms.
20. Representations
and Warranties of Buyer.
Buyer
hereby represents and warrants to Seller, that:
(a) Buyer
is
a corporation validly existing and in good standing under the laws of the State
of North Carolina. Buyer has the full legal right, power and authority to enter
into this Agreement and to consummate the Transaction. This Agreement is a
valid
and legally binding obligation of Buyer, enforceable in accordance with its
terms, except to the extent that enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws relating
to or
affecting the rights of creditors generally, and except as enforcement is
subject to equitable remedies. The execution by Buyer of this Agreement and
consummation of the Transaction do not, and, as of the Closing, will not, result
in the breach of any of the terms and provisions of, or constitute a default
under any document to which Buyer is a party;
(b) there
are
no pending or, to Buyer’s knowledge, threatened or contemplated actions, suits,
proceedings, arbitrations, claims or governmental investigations which affect,
or may affect, the ability of Buyer to consummate the Transaction;
(c) the
execution, delivery and performance by Buyer of this Agreement and the
consummation of the Transaction do not and will not require any consent,
approval, authorization or other action by, or declaration, filing or
registration with, or notification to, any governmental agencies or
bodies;
(d) neither
Buyer, nor any of its affiliates, is in violation of any Anti-Terrorism Law
or
engages in or conspires to engage in any transaction that evades or avoids,
or
has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law; and
(e) all
documents required or necessary to be executed by Buyer pursuant to the
provisions of this Agreement shall, except to the extent that enforcement may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting the rights of creditors generally and except
as enforcement is subject to equitable remedies, be valid, binding obligations
of Buyer, enforceable in accordance with their terms.
21. Miscellaneous.
22
(a) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
(b) This
Agreement and the attached Exhibits and Schedules contain the entire
understanding and agreement by and between the parties with respect to the
subject matter of this Agreement and all prior or contemporaneous oral or
written agreements or instruments with respect to the subject matter hereof
are
merged in this Agreement and no amendment to this Agreement shall be effective
unless the same is in writing and signed by the parties hereto.
(c) This
Agreement shall be binding upon and shall inure to the benefit of the parties
and their permitted successors and assigns.
(d) The
captions and headings throughout this Agreement are for convenience and
reference only and the words contained therein shall in no way be held to define
or add to the interpretation, construction or meaning of any provision of this
Agreement.
(e) This
Agreement may not be changed orally, but only by an agreement in writing signed
by both Buyer and Seller. No waiver of any of the provisions to this Agreement
shall be valid unless in writing and signed by the party against whom such
waiver is sought to be enforced.
(f) The
parties agree that this Agreement shall not be recorded.
(g) The
Title
Company shall serve as the “real estate reporting person” as that term is
defined in Section
6045(e)
of the
Internal Revenue Code of 1986, as amended. This Agreement shall constitute
a
designation agreement, the name and address of the transferor and transferee
of
the Transaction appear in Section
18
hereof,
and Seller and Buyer each agree to retain a copy of this Agreement for a period
of four (4) years following the end of the calendar year in which Closing
occurs. The provisions of this Section
21(g)
shall
survive Closing.
(h) Both
Seller and Buyer agree that they will cooperate, without further consideration,
in taking such action, whether prior or subsequent to the Closing, as may be
reasonably requested by the other party to consummate the Transaction. The
provisions of this Section
20(h)
shall
survive Closing.
(i) Seller
agrees that, so long as this Agreement is in effect, in the event Seller accepts
any offer to purchase the Property from any prospective purchaser (other than
(x) Buyer or its successors or assigns, (y) pursuant to joint written
instructions from Buyer and the Other Buyers, or their respective successors
or
assigns, in accordance with Sections
6 and 14(b),
or (z)
any other party with a right of first refusal or right to purchase an Individual
Property as contemplated by the last paragraph of Section
1
hereof),
Seller shall be deemed to have elected to terminate this Agreement as to the
Property as provided in Section
6
hereof.
Seller’s acceptance of any such offer to purchase the Property, or any portion
thereof, shall not be deemed either a breach or a default by Seller of this
Agreement.
(j) The
provisions of this Agreement and the documents to be executed and delivered
at
the Closing are and will be for the benefit of Seller, Buyer and their permitted
successors and assigns only and are not for the benefit of any third party,
and
accordingly, no
23
(k) All
references to “business days” contained herein are references to normal working
business days, i.e., Monday through Friday of each calendar week, exclusive
of
federal and national bank holidays. In the event that any event under this
Agreement is to occur, or a time period is to expire, on a date which is not
a
business day, such event shall occur or time period shall expire on the next
succeeding business day.
(l) Buyer
may
assign or transfer its rights and obligations under this Agreement, in part
or
in whole, to any affiliate of Buyer or to an Other Buyer without the consent
of
Seller. Buyer shall notify Seller prior to any such transfer. Upon such
transfer, the terms and provisions of this Agreement shall inure to the benefit
of and be binding upon such affiliate of Buyer or, as applicable, such Other
Buyer (as Buyer’s assignee) and Buyer shall be released of all further
obligations and liability hereunder thereafter first accruing.
(m) Seller
acknowledges and agrees that Buyer’s acquisition of the Property may be the
acquisition of replacement property in a qualifying exchange of like-kind
property under Section
1031
of the
Internal Revenue Code of 1986, as amended. Seller agrees to cooperate with
Buyer
in the completion of such an exchange, including a reverse exchange and the
conveyance and/or assignment of this Agreement to an exchange accommodation
titleholder or an entity controlled by an exchange accommodation titleholder
in
accordance with the procedures outlined in Revenue Procedure 2000-37
(collectively the “Exchange”),
pursuant to Buyer’s separate exchange agreement with a qualified intermediary
(the “Intermediary”).
Such
cooperation may include, without limitation, (i) the assignment of this
Agreement by Buyer to the Intermediary, and the acknowledgment of such
assignment by Seller, (ii) the acceptance of the Purchase Price from the
Intermediary, (iii) the conveyance of the Property to Buyer pursuant to a
written direction of the Intermediary, and (iv) the reassignment of this
Agreement to Buyer from the Intermediary immediately following the completion
of
the Exchange, and the acknowledgment by Seller of such reassignment. In
consideration for the cooperation of Seller in the Exchange, Buyer hereby agrees
to indemnify and hold Seller and each of its officers, directors, partners,
employees, and agents thereof harmless from and against any and all claims,
liabilities, expenses or judgments arising out of, based upon, attributable
to
or resulting from any act or failure to act of Seller if such act or failure
to
act arose out of Seller’s obligation to cooperate with Buyer pursuant to the
terms of this Section
21(m).
(n) This
Agreement may be executed in counterparts, each of which shall be a fully
executed original and all of which together shall constitute one and the same
instrument.
(o) As
used
herein, the singular number shall include the plural, the plural the singular,
and the use of any gender shall be applicable to all genders.
(p) The
provisions of this Agreement are independent and separable from each other,
and
no provision shall be affected or rendered invalid or unenforceable by virtue
of
the fact that for any reason any other or others of them may be invalid or
unenforceable in whole or in part.
24
[SIGNATURE
PAGES TO FOLLOW]
25
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
authorized representatives.
SELLER:
XXXXX’X
ROADHOUSE,
INC.
a
Tennessee
corporation
By:
/s/
X.X.
Xxxxxxx Shoaf_____________
Name:
X.X. Xxxxxxx
Shoaf_____________
Title:
Director and Assistant Secretary
Date: October
30, 2006
BUYER:
WACHOVIA
DEVELOPMENT
CORPORATION,
a
North Carolina
corporation
By:
/s/
Xxxxxx
Xxxx Garrett___________
Name:
Xxxxxx Xxxx
Garrett___________
Title:
Director
Date: October
30, 2006
TO
HELP FIGHT THE FUNDING OF TERRORISM AND MONEY LAUNDERING ACTIVITIES, FEDERAL
LAW
REQUIRES ALL FINANCIAL INSTITUTIONS TO OBTAIN, VERIFY AND RECORD INFORMATION
THAT IDENTIFIES EACH PERSON OR CORPORATION WHO ENTERS INTO A BUSINESS
RELATIONSHIP WITH BUYER.
26
EXHIBIT
A
Land
|
Store
Xx.
|
Xxxxxxx
|
Xxxx
|
Xxxxx
|
|
000
|
000
XX Xxxxx
|
Murfreesboro
|
TN
|
|
307
|
0000
Xxxxx'x Xxxxxx Xxx
|
Xxxxxxxx
|
XX
|
|
309
|
0000
Xxxxxxxxxx Xx
|
Xxxxxxxxxxx
|
XX
|
|
310
|
000
Xxxxx Xx 000
|
Xxxxxxxxxxx
|
IN
|
|
320
|
0000
Xxxxxxxxx Xx
|
Xxxxx
|
XX
|
|
328
|
0000
Xxxxxxxx Xxxxx
|
Xxxxxxxxxx
|
XX
|
|
332
|
000
Xxxxxxxxxxxx Xx
|
X.
Xxxxxx
|
XX
|
|
340
|
00000
Xxxxxxx Xxxxxx
|
Xxxxxxxx
|
XX
|
|
348
|
0000
X. Xxxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
|
354
|
0000
X. Xxxxxxxx Xxxxxxx
|
Xxxxxxxxxx
|
XX
|
|
356
|
00000
Xxxx Xxxx
|
Xxxxxx
Xxxxxxxx
|
XX
|
|
369
|
0000
Xxxxxxxx Xxxx X.X.
|
Xxxxxxx
|
XX
|
|
375
|
00000
Xxxx Xxxx
|
Xxxxxx
|
XX
|
|
377
|
00
Xxx Xxx
|
Xxxxxx
|
XX
|
|
379
|
0000
Xxxxxxx Xxxxx Xxxxxxxx
|
Xxxxxxxx
|
XX
|
|
381
|
5645
Pearl Dr.
|
Evansville
|
IN
|
|
394
|
000
X Xxxxxxxx Xxxx. X
|
Xxxxxx
|
XX
|
|
404
|
000
Xxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
|
409
|
0000
Xxxxxxxxxxx Xxxxxxx
|
Xx.
Xxxxxxxxxx
|
XX
|
|
420
|
0000
X. 00xx Xxxxxx
|
X.
XxXxxxx
|
XX
|
|
432
|
0000
Xxxxxx Xxxxx
|
Xxxxxx
Xxxxx
|
XX
|
|
435
|
0000
Xxxxxxxxxxx Xx
|
Xxxxxxx
Xxxxx
|
XX
|
|
|
|
|
|
EXHIBIT
B
Leases
NONE
EXHIBIT
C
Form
Closing Lease
[A
COPY OF THE FORM CLOSING LEASE IMMEDIATELY FOLLOWS THIS PAGE]
EXECUTION
COPY
[SUBJECT
TO ACCOUNTING REVIEW]
Between
____________________________________,
a
_________________________,
as
Landlord,
and
XXXXX’X
ROADHOUSE, INC.,
a
Tennessee corporation,
as
Tenant,
Dated
as
of October __ , 2006
|
ARTICLE
I
AGREEMENT TO
LEASE..........................................................................................................................................................................
|
1 |
| 1.1 Demise.................................................................................................................................................................................................. |
1
|
| 1.2 Condition............................................................................................................................................................................................... |
1
|
| 1.3 Quiet Enjoyment.................................................................................................................................................................................... |
2
|
|
|
|
| ARTICLE II TERM........................................................................................................................................................................................................ |
2
|
| 2.1 Term ..................................................................................................................................................................................................... |
2
|
| 2.2 Option to Renew.................................................................................................................................................................................... |
2
|
| 2.3 Termination............................................................................................................................................................................................ |
2
|
|
|
|
| ARTICLE III RENT....................................................................................................................................................................................................... |
3
|
| 3.1 Base Rent............................................................................................................................................................................................... |
3
|
| 3.2 Additional Rent; Rent Defined................................................................................................................................................................. |
4
|
| 3.3 Payment of Rent..................................................................................................................................................................................... |
4
|
| 3.4 Past Due Rent........................................................................................................................................................................................ |
5
|
|
|
|
| ARTICLE IV USE AND OPERATION OF PREMISES............................................................................................................................................... |
5
|
| 4.1 Permitted Use........................................................................................................................................................................................ |
5
|
| 4.2 Manner of Operation............................................................................................................................................................................. |
6
|
| 4.3 Compliance with Laws........................................................................................................................................................................... |
7
|
| 4.4 Hazardous Materials and Sweage Prohibited.......................................................................................................................................... |
7
|
| 4.5 Intentionally Omitted.............................................................................................................................................................................. |
11
|
| 4.6 Continuous Operations........................................................................................................................................................................... |
11
|
| 4.7 Compliance with Restrictions, Etc........................................................................................................................................................... |
12
|
|
|
|
| ARTICLE V TAXES, ASSESSMENTS AND COMMON AREA MAINTENANCE CHARGES................................................................................ |
12
|
i
| 5.1 Real Estate Taxes and Assessments.......................................................................................................................................................... |
12
|
| 5.2 Common Area Maintenance Charges........................................................................................................................................................ |
14
|
| ARTICLE VI UTILITIES................................................................................................................................................................................................. |
15
|
| 6.1 Utilities..................................................................................................................................................................................................... |
15
|
| ARTICLE VII INSURANCE.......................................................................................................................................................................................... |
15
|
| 7.1 Insurance by Tenant................................................................................................................................................................................. |
15
|
| 7.2 Carriers and Features............................................................................................................................................................................... |
18
|
| 7.3 Failure to Procure Insurance.................................................................................................................................................................... |
18
|
|
|
|
| 7.4 Waiver of Subrogation.............................................................................................................................................................................. |
18
|
| 7.5 Blanket Policy........................................................................................................................................................................................... |
19
|
| ARTICLE VIII ADDITIONS, ALTERATIONS AND REMOVALS............................................................................................................................... |
19
|
| 8.1 Prohibition................................................................................................................................................................................................. |
19
|
|
|
|
| 8.2 Permitted and Required Renovations......................................................................................................................................................... |
19
|
| ARTICLE IX MAINTENANCE AND REPAIRS............................................................................................................................................................. |
21
|
| 9.1 Repairs by Tenant..................................................................................................................................................................................... |
21
|
| 9.2 Landlord's Obligation................................................................................................................................................................................ |
22
|
| ARTICLE X DAMAGE OR DESTRUCTION.................................................................................................................................................................. |
22
|
| 10.1 Restoration and Repair........................................................................................................................................................................... |
22
|
| 10.2 Escrow of Insurance Proceeds................................................................................................................................................................ |
22
|
| 10.3 Uninsured Losses.................................................................................................................................................................................... |
23
|
| 10.4 No Abatement of Rent............................................................................................................................................................................. |
23
|
| 10.5 Material Casualty..................................................................................................................................................................................... |
23
|
|
|
|
| ARTICLE XI CONDEMNATION.................................................................................................................................................................................... |
24
|
| 11.1 Non-Material Taking................................................................................................................................................................................ |
24
|
| 11.2 Material Taking........................................................................................................................................................................................ |
24
|
ii
| 11.3 Award.................................................................................................................................................................................................. |
26
|
| 11.4 Disputes................................................................................................................................................................................................ |
26
|
| ARTICLE XII LANDLORD'S RIGHT TO INSPECT..................................................................................................................................................... |
26
|
|
|
|
| 12.1 Landlord's Right to Inspect.................................................................................................................................................................... |
26
|
| ARTICLE XIII ASSIGNMENT AND SUBLETTING.................................................................................................................................................... |
27
|
| 13.1 Assignment and Subletting..................................................................................................................................................................... |
27
|
| ARTICLE XIV LANDLORD'S INTEREST NOT SUBJECT TO LIENS....................................................................................................................... |
30
|
| 14.1 Liens, Generally..................................................................................................................................................................................... |
30
|
| 14.2 Mechanics' Liens................................................................................................................................................................................... |
30
|
| 14.3 Contest of Liens................................................................................................................................................................................... |
31
|
| 14.4 Notices of Commencement of Construction.......................................................................................................................................... |
31
|
| ARTICLE XV SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE.................................................................................................. |
31
|
| 15.1 Subordination....................................................................................................................................................................................... |
31
|
| 15.2 Attornment........................................................................................................................................................................................... |
32
|
| 15.3 Rights of Mortgagees, Beneficiaries and Assignees................................................................................................................................. |
32
|
|
|
|
| ARTICLE XVI END OF TERM; RIGHT OF FIRST REFUSAL................................................................................................................................... |
33
|
| 16.1 Surrender of Premises.......................................................................................................................................................................... |
33
|
| 16.2 Holding Over....................................................................................................................................................................................... |
33
|
| 16.3 Right of First Refusal............................................................................................................................................................................ |
33
|
| ARTICLE XVII LIABILITY OF LANDLORD; INDEMNIFICATION......................................................................................................................... |
35
|
| 17.1 Liability of Landlord.............................................................................................................................................................................. |
35
|
| 17.2 Indemnification of Landlord.................................................................................................................................................................. |
35
|
| 17.3 Notice of Claim or Suit.......................................................................................................................................................................... |
36
|
| 17.4 Limitation of Liability of Landlord........................................................................................................................................................... |
36
|
| ARTICLE XVIII DEFAULT........................................................................................................................................................................................... |
36
|
iii
| 18.1 Events of Default................................................................................................................................................................................... |
36
|
| 18.2 Remedies on Default.............................................................................................................................................................................. |
39
|
| 18.3 Landlord May Cure Tenant Defaults..................................................................................................................................................... |
41
|
| 18.4 Landlord's Lien Waiver......................................................................................................................................................................... |
41
|
| 18.5 Rights Cumulative.................................................................................................................................................................................. |
41
|
| ARTICLE XIX NOTICES.............................................................................................................................................................................................. |
42
|
| ARTICLE XX SUBSTITUTION OF PREMISES.......................................................................................................................................................... |
43
|
| 20.1 Definitions............................................................................................................................................................................................. |
43
|
| 20.2 Conditions to Subtitution........................................................................................................................................................................ |
44
|
| ARTICLE XXI FINANCIAL REPORTING/FINANCIAL COVENANT...................................................................................................................... |
48
|
| 21.1 Financial Reporting............................................................................................................................................................................... |
48
|
| ARTICLE XXII ECONOMIC INFEASIBILITY............................................................................................................................................................ |
49
|
| 22.1 Economic Infeasibility............................................................................................................................................................................ |
49
|
| ARTICLE XXIII MISCELLANEOUS............................................................................................................................................................................ |
50
|
| 23.1 "Net" Lease.......................................................................................................................................................................................... |
50
|
| 23.2 Estoppel Certificates............................................................................................................................................................................. |
50
|
| 23.3 Intentionally Omitted............................................................................................................................................................................. |
50
|
|
|
|
| 23.4 No Partnership or Joint Venture............................................................................................................................................................ |
51
|
| 23.5 Entire Agreement.................................................................................................................................................................................. |
51
|
| 23.6 Waiver.................................................................................................................................................................................................. |
51
|
| 23.7 Time..................................................................................................................................................................................................... |
51
|
| 23.8 Costs and Attorneys' Fees..................................................................................................................................................................... |
51
|
| 23.9 Captions and Headings; Usage............................................................................................................................................................... |
51
|
| 23.10 Severability........................................................................................................................................................................................... |
52
|
| 23.11 Successors and Assigns......................................................................................................................................................................... |
52
|
iv
| 23.12 Applicable Law................................................................................................................................................................................... |
52
|
|
|
|
| 23.13 Recordation of Memorandum of Lease................................................................................................................................................ |
52
|
|
|
|
| 23.14 Waiver of Jury Trial............................................................................................................................................................................ |
52
|
| 23.15 Counterparts....................................................................................................................................................................................... |
52
|
|
|
|
| 23.16 Intentionally Omitted........................................................................................................................................................................... |
52
|
| 23.17 Tenant Merger.................................................................................................................................................................................... |
52
|
| 23.18 Tax Treatment Disclosure.................................................................................................................................................................... |
52
|
| 23.19 Specially Designated Nationals; Blocked Persons; Embargoed Persons................................................................................................ |
53
|
| 23.20 Notice of Material Debt Default........................................................................................................................................................... |
54
|
v
Exhibit
A - Legal
Description
Exhibit
B - Cease
Operations Lease Pool
Exhibit
C - Leasehold
Mortgage Subordination, Non-Disturbance Agreement
Exhibit
D - Form
of
Subordination, Non-Disturbance and Attornment Agreement
Exhibit
E-1 - Form
of
Tenant Estoppel Certificate
Exhibit
E-2 - Form
of
Landlord Estoppel Certificate
Exhibit
F - Form
of
Amended and Restated Lease
Exhibit
G - Form
of
Memorandum of Lease
Schedule
13.1(i)- List
of
Non Sale-Leaseback Stores
THIS
LEASE AGREEMENT (the “Lease”)
is
made and entered into effective as of the ___ day of October, 2006 (the
“Effective
Date”)
by and
between ______________, a ____________ (the “Landlord”)
and
XXXXX’X ROADHOUSE, INC., a Tennessee corporation (the “Tenant”);
W
I T N E
S SE T H:
WHEREAS,
Tenant owned fee simple title to certain real property having a street address
of _______________, in the City of _________, County of __________, State of
_________, as more particularly described in Exhibit
A
attached
hereto (the “Land”),
upon
which a building was constructed containing approximately ___________ (_____)
square feet, together with related site improvements (the “Improvements”);
WHEREAS,
Tenant on the Effective Date hereof has conveyed the Land and Improvements
to
Landlord together with all licenses, rights, privileges and easements
appurtenant thereto (the Land, Improvements and appurtenant rights are
collectively referred to herein as the “Premises”);
and
WHEREAS,
Tenant desires to lease back from Landlord, and Landlord has agreed to lease
back to Tenant, all of the Premises upon the terms and conditions as more
particularly hereinafter provided and described;
NOW,
THEREFORE, for and in consideration of the premises hereof, the sums of money
to
be paid hereunder, and the mutual and reciprocal obligations undertaken herein,
the parties hereto do hereby covenant, stipulate and agree as
follows:
ARTICLE I
AGREEMENT
TO LEASE
1.1 Demise. Landlord
does hereby demise, let and lease unto Tenant, and Tenant does hereby hire,
lease and take as Tenant from Landlord, the entire Premises upon those terms
and
conditions hereinafter set forth.
1.2 Condition. Tenant
acknowledges and agrees that the Premises are and shall be leased by Landlord
to
Tenant in their present “as is” condition, and that Landlord makes absolutely no
representations or warranties whatsoever with respect to the Premises or the
condition thereof. Tenant acknowledges that Landlord does not warrant or
represent to Tenant that the Premises are fit for the purposes intended by
Tenant or for any other purpose or purposes whatsoever, and Tenant acknowledges
that the Premises are to be leased to Tenant in their existing condition, i.e.,
“as-is”, on and as of the Effective Date. Tenant acknowledges that Tenant shall,
subject to the terms of Lease (including the termination options set forth
in
Sections 10.5 and 11.2), be solely responsible for any and all actions, repairs,
permits, approvals and costs required for the rehabilitation, renovation, use,
occupancy and operation of the Premises in accordance with applicable
governmental requirements, including, without limitation, all governmental
charges and fees, if any, which may be due or payable to applicable authorities.
Tenant agrees that, by leasing the Premises, Tenant warrants and represents
that
Tenant has
1.3 Quiet
Enjoyment. Landlord
covenants and agrees that so long as Tenant shall timely pay all rents due
to
Landlord from Tenant hereunder and keep, observe and perform all covenants,
promises and agreements on Tenant’s part to be kept, observed and performed
hereunder, Tenant shall and may peacefully and quietly have, hold and occupy
the
Premises free of any interference from Landlord and any Person (as hereinafter
defined) claiming by or through Landlord; subject, however, to the terms,
provisions and conditions of this Lease.
ARTICLE II
TERM
2.1 Term. The
initial term of this Lease (the “Initial
Term”)
shall,
unless sooner terminated as elsewhere provided in this Lease, commence on the
Effective Date and shall terminate and expire at 11:59 p.m. on the date
immediately preceding the twentieth (20th) anniversary of the Effective Date.
The Initial Term, together with any properly exercised Option Period (as
hereinafter defined), shall be collectively referred to herein as the
“Term”.
2.2 Option
to Renew. Tenant
shall have and is hereby granted five (5) options (individually an “Option”)
to
extend this Lease beyond the Initial Term for an additional period of five
(5)
years each (individually an “Option
Period”).
Tenant may exercise each such Option successively by giving written notice
to
Landlord not less than nine (9) months prior to the expiration of the Initial
Term or expiration of the then current Option Period, as applicable.
Notwithstanding the foregoing, Tenant shall not be entitled to extend the Term
if, at the time of exercise of an Option or at the time of commencement of
an
Option Period, an Event of Default shall then exist. If Tenant shall fail,
or
shall not be entitled pursuant to the preceding sentence, to extend the Term
for
an additional Option Period, all remaining rights of renewal shall automatically
expire. Any Option Period shall be subject to all of the provisions of this
Lease, and all such provisions shall continue in full force and effect, except
that the Base Rent (as hereinafter defined) for each Option Period shall be
determined pursuant to Sections 3.1(c) and (d) hereof.
2.3 Termination. Notwithstanding
any present or future law to the contrary and subject to the termination options
set forth in Sections 10.5 and 11.2, this Lease shall not be terminated by
Tenant for any failure of Landlord to perform pursuant to the terms and
conditions of this Lease or otherwise for any reason; provided, however, that
Tenant is not required by this Section 2.3 to violate any future law or other
legal requirement.
2
ARTICLE III
RENT
3.1 Base
Rent.
(a) Beginning
on the Effective Date and continuing through the Initial Term and the first
two
(2) Option Periods (if applicable), and subject to both proration and increase,
each as set forth below, Tenant shall pay annual base rent for the Premises,
together with all applicable sales and use taxes thereon, in the annual amount
of [TO
BE
7.80% OF THE ALLOCATED PURCHASE PRICE]
$_______, payable in equal monthly installments of $_________ each
(collectively, the “Base
Rent”).
Notwithstanding the foregoing, commencing with the first calendar month in
the
second (2nd) Lease Year (as hereinafter defined), and continuing in the first
calendar month of each Lease Year thereafter, the amount of Base Rent payable
by
Tenant hereunder shall increase by two times the percentage change in the
Consumer Price Index (United States City Average for All Urban Consumers, All
Items, Not Seasonally Adjusted, as published by the United States Department
of
Labor’s Bureau of Statistics) during the twelve (12) month period that ends on
the last day of the ninth month of the immediately preceding Lease Year,
subject, however, to a maximum increase of 1.75% and a minimum increase of
0.35%
(such percentage change, the "CPI
Percentage Change").
(b) Base
Rent
for each Lease Year during the Term shall be paid by Tenant to Landlord in
equal
monthly installments, in advance, by wire transfer in immediately available
federal funds to such account in such bank as Landlord (or Lender on behalf
of
Landlord) shall designate, from time to time (the “Rent
Account”),
on
the first (1st) day of each calendar month commencing on the first (1st) day
of
the calendar month immediately following the Effective Date; provided, however,
that Landlord and Tenant agree that the prorated Base Rent payable for the
period from the Effective Date to the first day of the first full calendar
month
following the Effective Date, if any, shall be due on the Effective Date. For
the purposes of this Lease, the term “Lease
Year”
shall
mean and be defined as each twelve (12) month period commencing on the first
day
of the first (1st) full calendar month immediately following the Effective
Date;
provided, however, that the first (1st) Lease Year shall include the period
from
the Effective Date to the first (1st) day of the next following calendar month
after the Effective Date. Base Rent shall be proportionately prorated for any
extended or partial month during the Term (i.e. the first (1st) Lease Year
and/or the final Lease Year).
(c) Base
Rent
for the third, fourth and fifth Option Periods shall be determined prior to
the
initiation of each such applicable Option Period as the greater of (i) the
amount of Base Rent payable for the immediately preceding Lease Year, or (ii)
the fair market rental value at time of the initiation of such Option Period,
determined pursuant to Section 3.1(d) hereof. In addition, commencing with
the
first (1st) calendar month in the second (2nd) Lease Year of each of the third,
fourth and fifth Option Periods, and continuing in the first calendar month
of
each Lease Year thereafter in such applicable Option Period, the amount of
Base
Rent payable by Tenant during such Option Period shall increase by two times
the
CPI Percentage Change. After Tenant’s exercise of the third, fourth or fifth
Option, as applicable, Tenant shall, within ten (10) days after Landlord’s
written request therefor, execute, acknowledge and deliver to Landlord an
instrument confirming that such Option has been effectively exercised,
3
(d) Landlord
and Tenant shall endeavor in good faith to agree upon a commercially reasonable
fair market rent within thirty (30) business days after Tenant’s notice of an
exercise of the third, fourth or fifth Option, as applicable. Failing such
efforts, Landlord shall designate an independent MAI appraiser to determine
the
annual fair market rental value within forty (40) days after Tenant’s notice of
the exercise of such Option. Within ten (10) days after selection of Landlord’s
appraiser, Landlord shall notify Tenant of the determination made by Landlord’s
appraiser with respect to the annual fair market rental value. Tenant shall
then
have twenty (20) days to dispute such determination and to select its own
independent MAI appraiser. In the event that Tenant fails to select its
appraiser within such twenty (20) day period, the determination of Landlord’s
appraiser shall constitute such annual fair market rental value. Within ten
(10)
days after selection of Tenant’s appraiser, the two appraisers shall meet and
attempt to agree as to the annual fair market rental value for the Premises
for
the Option Period in question. In the event that such appraisers are unable
to
agree as to such annual fair market rental value then: (i) if the difference
between the two determinations is less than five percent (5%) of the lower
determination, then the average of the two determinations shall be deemed to
constitute such annual fair market rental value; or (ii) if the difference
between the two determinations is equal to or greater than five percent (5%)
of
the lower determination, then the two appraisers shall jointly select a third
independent MAI appraiser, which appraiser shall select which of the
determinations of the first two appraisers shall constitute such annual fair
market rental value. Such third appraiser shall not have the right to vary
or
modify the determinations of the appraisers selected by Landlord and Tenant.
Any
appraiser selected pursuant to this Section 3.1(c) must have at least ten (10)
years experience in appraising commercial real estate in the area in which
the
Premises are located. The appraisers shall not have the right to amend, modify
or vary any of the terms of this Lease and the determination of the appraisers
in accordance with this Section 3.1(c) shall be final, binding and conclusive
upon Landlord and Tenant.
3.2 Additional
Rent; Rent Defined. If
Landlord shall make any expenditure for which Tenant is responsible or liable
under this Lease, or if Tenant shall become obligated to Landlord under this
Lease for any sum other than Base Rent (including, without limitation (i) any
out-of-pocket costs, charges or penalties (including prepayment or defeasance
costs and penalties), if any, incurred by Landlord or Lender (as hereinafter
defined) as a result of any prepayment or defeasance, and (ii) any amounts
that
are due and owing to Lender or Landlord by reason of any default by Tenant
in
complying with its obligations under this Lease), the amount thereof shall
be
deemed to constitute additional rent (the “Additional
Rent”)
and
shall be due and payable by Tenant to Landlord, together with all applicable
sales taxes thereon, if any, simultaneously with the next succeeding monthly
installment of Base Rent or at such other time as may be expressly provided
in
this Lease for the payment of the same. For the purposes of this Lease, the
term
“Rent”
shall
mean and be defined as all Base Rent and Additional Rent due from Tenant to
Landlord hereunder.
3.3 Payment
of Rent. Each
of
the foregoing amounts of Rent and other sums shall be paid to Landlord without
demand and without deduction (except as expressly set forth in Section 11.1
hereof), diminution, abatement, set-off, claim or counterclaim of any nature
whatsoever which Tenant may have or allege to have against Landlord, and all
such payments
4
3.4 Past
Due Rent. If
Tenant
fails to make any payment of Rent or any other sums or amounts to be paid by
Tenant hereunder on or before the date such payment is due and payable, Tenant
shall pay to Landlord the amount of any late fee charged by any applicable
mortgagee of the Premises; provided, however, that such late fee shall not
exceed five percent (5%) of the amount of such applicable payment of Rent.
In
addition, such past due payment shall bear interest from the date such payment
became due to the date of payment thereof by Tenant at a rate which is equal
to
the lesser of (i) twelve percent (12%) per annum, or (ii) the maximum interest
rate then allowable under the laws of the State in which the Premises are
located. Such late charge and interest shall constitute Additional Rent and
shall be due and payable with the next installment of Rent due
hereunder.
ARTICLE
IV
USE
AND
OPERATION OF PREMISES
4.1 Permitted
Use. Tenant
covenants that it shall, throughout the Term (subject to Section 4.6 herein),
use and occupy the Premises only as a restaurant or other lawful use not
otherwise prohibited by this Section 4.1. The following uses shall be prohibited
on the Premises under any and all circumstances:
(a) any
obnoxious odor, noise or sound which can be heard or smelled outside of the
Building; provided, however, that (i) any usual music and paging system shall
be
allowed, (ii) typical restaurant odors shall not be deemed prohibited hereby,
and (iii) if allowed by local ordinance and not restricted by covenant or
declaration, live music may be played;
(b) any
operation primarily used as a warehouse operation and any assembling,
manufacturing, distilling, refining, smelting, agricultural or mining
operation;
(c) any
mobile home, trailer court, labor camp, junk yard or stock yard (except that
this provision shall not prohibit the temporary use of construction trailers
during periods of construction, reconstruction or maintenance);
(d) any
dumping, disposing, incineration or reduction of garbage (exclusive of garbage
compactors located in the rear of any building);
5
(e) any
fire
sale, bankruptcy sale (unless pursuant to a court order) or auction house
operation;
(f) any
automobile, truck, trailer or RV sales, leasing or display or facility doing
auto body repair;
(g) any
bowling alley;
(h) any
skating rink, school or other place of public assembly;
(i) any
living quarters, sleeping apartments or lodging rooms;
(j) any
veterinary hospital or animal raising facility (except that this provision
shall
not prohibit pet shops such as Pet’s Mart or Petstuff or the maintenance of live
animals for sale or the provision of veterinary services in conjunction with
the
operation of any such pet shop);
(k) any
mortuary;
(l) any
establishment which has as more than two percent (2%) of its floor area
displaying, exhibiting or selling pornographic materials, including, without
limitation any adult book or film store and any adult entertainment
nightclub;
(m) any
bar,
tavern, night club or other establishment whose principal business (with respect
to any establishment or business other than a "Xxxxx'x" restaurant, greater
than
thirty percent (30%) of revenue, which percentage may be increased from time
to
time with Landlord’s prior written consent, not to be unreasonably withheld,
delayed or conditioned) is the sale for on premises consumption of alcoholic
beverages; provided, however, that nothing contained herein shall in any way
prohibit or limit the selling of alcoholic beverages by a restaurant operation
as contemplated by this Section 4.1.
(n) any
theater or cinema;
(o) any
flea
market, amusement arcade, pool or billiard hall, dance hall or discotheque,
carnival, circus or off-track betting parlor;
(p) the
overnight storage of motor vehicles;
(q) any
central laundry, dry cleaning facility or laundromat; or
(r) any
use
which involves the sale or dispensing of motor vehicle fuels and oil products,
including gasoline, ethanol and diesel fuel.
4.2 Manner
of Operation. Throughout
the Term (subject to Section 4.6 herein), Tenant shall operate the Premises
in a
manner consistent with, and comparable to, the operation of Tenant’s other
operating locations.
6
4.3 Compliance
with Laws. Tenant
shall at all times keep and maintain the Premises in compliance in all material
respects with all applicable laws, ordinances, statutes, rules, regulations,
orders, directions and requirements of all federal, state, county and municipal
governments and of all other governmental agencies or authorities having or
claiming jurisdiction over the Premises or the business activities conducted
thereon or therein and of all of their respective departments, bureaus, agencies
or officers, and of any insurance underwriting board or insurance inspection
bureau having or claiming such jurisdiction or any other body exercising similar
functions. Notwithstanding the generality of the foregoing, Tenant shall, at
its
sole expense, maintain the Premises in compliance in all material respects
with
all applicable federal, state or municipal laws, ordinances, rules and
regulations currently in existence or hereafter enacted or rendered governing
accessibility for the disabled or handicapped, including, without limitation,
any applicable provisions of The Architectural Barriers Act of 1968, The
Rehabilitation Act of 1973, The Americans With Disabilities Act, the
accessibility code(s), if any, of the State in which the Premises are located,
and all regulations and guidelines promulgated under any all of the foregoing,
as the same may be amended from time to time (collectively, the “Accessibility
Laws”);
provided, however, that compliance with any such Accessibility Laws enacted
after the Effective Date shall not be required by Tenant to the extent that
the
Premises are “grandfathered” under such new Accessibility Law (i.e., the
continued use of the Improvements that were erected or installed prior to the
enactment or promulgation of such new Accessibility Laws shall remain a lawful
and compliant use).
4.4 Hazardous
Materials and Sewage Prohibited.
(a) Definitions.
The
following terms shall have the following meanings:
(i) “Environmental
Requirements”,
as
used herein, shall mean, without limitation, any and all present or future
federal, state, and local government laws (including common law), governmentally
imposed rules, regulations, statutes, codes, ordinances, directives, guidance
documents, clean-up or other standards, and any other governmental requirements
or standards which pertain to, regulate, or impose liability or standards of
conduct concerning the use, storage, human exposure to, handling,
transportation, release, clean-up or disposal of Hazardous
Materials.
(ii) “Hazardous
Materials”
shall
mean and be defined as any and all toxic or hazardous substances, chemicals,
materials or pollutants, of any kind or nature, which are regulated, governed,
restricted or prohibited by any federal, state or local law, decision, statute,
rule, or ordinance currently in existence or hereafter enacted or rendered,
and
shall include, without limitation, all oil, gasoline and petroleum based
substances, and all biocontaminants, mold, mildew or other airborne
pollutants.
7
(iii) “Pre-Existing
Environmental Condition”
shall
mean the presence of: (A) Hazardous Materials in soil, groundwater or surface
water on or about the Premises which first existed or first occurred prior
to
the Effective Date; or (B) any other environmental condition in the soil,
groundwater or surface water on or about the Land or in the Improvements, which
first existed or first occurred prior to the Effective Date.1
(iv) “Release”
shall
mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the environment any
Hazardous Materials on, over, under, from or affecting the Premises or the
air,
soil, water vegetation, buildings, personal property, persons or animals
thereon, whether occurring before or during the Term.
(v) “Storage
Tank System”
means
a
complex of one or more underground or aboveground storage tanks and their
associated underground, aboveground, and/or connected piping and related fuel
dispensing, pumping, mechanical, control and detectional equipment, as more
particularly located on the Land; provided, however, that the term “Storage Tank
System” shall not include any aboveground tanks or canisters (and related
dispensing, pumping, mechanical, control and detectional equipment) containing
carbon dioxide or other materials used in beverage dispensing systems. Tenant
is
and shall remain and be the owner and operator of all Storage Tank Systems
(if
any) on the Land, and, accordingly, is further deemed to be such for purposes
of
compliance with any liabilities arising from all applicable laws relating to
such Storage Tank Systems.
(b) Environmental
Compliance.
Tenant
shall comply with all Environmental Requirements relating to the use, storage,
transportation, dispensing, sale or Release of Hazardous Materials at the
Premises. Tenant shall not use, store, transport, dispense or sell Hazardous
Materials at the Premises, or surrounding areas, except as reasonably necessary
for a permitted use of the Premises. Except as set forth in Schedule 4.4 hereto,
Tenant shall not locate a Storage Tank System on the Premises without the prior
consent of Landlord. Tenant shall not Release, nor shall Tenant knowingly allow
any employee, contractor, agent, invitee, licensee, customer or sublessee to
Release, any Hazardous Materials on or into the Premises or into the air or
the
surrounding land, surface water or ground water. All reporting, investigation
and/or remediation requirements under any Environmental Requirements with
respect to any and all Releases of Hazardous Materials at, on, from or near
the
Premises are the responsibility of Tenant. Tenant promptly shall xxxxx and
remediate any Release in compliance with all Environmental
Requirements.
1 No
sites with
pre-existing conditions will be included in the transaction contemplated by
this
Lease withouth Landlord and Tenant agreement.
8
(c) Tenant’s
Responsibility for Hazardous Materials.
Hazardous Materials at, on or under the Premises shall be the responsibility
of
Tenant and Tenant shall be liable for and responsible for all Hazardous
Materials, including without limitation, at Tenant’s sole cost (i) any
Pre-Existing Environmental Condition; (ii) permitting, reporting, assessment,
testing, investigation, treatment, removal, remediation, transportation and
disposal of Hazardous Materials at, on or under the Premises as directed by
any
governmental agency, as required by Environmental Requirements; (iii) damages,
costs, expenditures and claims for injury to persons, property, the Premises
and
surrounding air, land, surface water, and ground water resulting from Hazardous
Materials at, on or under the Premises; (iv) claims by any governmental agency
or third party associated with injury to surrounding air, land, surface water
and ground water or other damage resulting from Hazardous Materials at, on
or
under the Premises; (v) damages or injury to the buildings, fixtures,
appurtenances, equipment and other personal property of Landlord to the extent
caused by Hazardous Materials at, on or under the Premises; (vi) fines, costs,
fees, assessments, taxes, demands, orders, directives or any other requirements
imposed in any manner by any governmental agency asserting jurisdiction, or
under any Environmental Requirements with respect to Hazardous Materials at,
on
or under the Premises; (vii) damages, costs and expenditures for injury to
natural resources to the extent caused by Hazardous Materials at, on or under
the Premises as directed by any governmental agency or otherwise as required
by
Environmental Requirements; (viii) compliance with Environmental Requirements
regarding the use, storage, transportation, Release, disposal, dispensing or
sale of Hazardous Materials at, on or under the Premises; and (ix) any other
liability or obligation related to Hazardous Material at, on or under the
Premises (including, without limitation, abatement of the underlying cause
of
any mold (including water intrusion), and repair of any leaks and associated
water damage at the Premises). While Landlord is not required to incur any
costs, fees (including attorney, consultant and expert witness fees) or expenses
for environmental compliance, testing, investigation, assessment, remediation
or
cleanup relating to Hazardous Materials at, on or under the Premises, should
Tenant fail to perform any remediation required hereunder and as a result,
Landlord incurs any reasonable costs, expenses or fees relating to Hazardous
Materials at the Premises or surrounding lands or surface water or ground water,
Tenant shall promptly reimburse Landlord for said reasonable costs, expenses
or
fees.
(d) Tenant’s
Environmental Indemnification.
Tenant
shall indemnify, defend, and hold Landlord harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities, or losses (including,
without limitation, damages for the loss or restriction on use of rentable
or
usable space or of any amenity of the Premises, and sums paid in settlement
of
claims, and reasonable attorneys’, consultation, and expert fees) which arise
before, during or after the Term as a result of any Pre-Existing Environmental
Condition or as a result of Hazardous Materials placed at, on or under the
Premises during the Term. This indemnification of Landlord by Tenant includes,
without limitation, reasonable costs incurred in connection with any
investigation or site conditions or any clean-up, remedial, removal, or
restoration work required by any federal, state, or local governmental agency
or
political subdivision because of Hazardous Materials present in the soil or
ground water at, on or under the Premises. Without limiting the foregoing,
if
the presence of any Hazardous Materials on the Premises results in any
contamination of the Premises, Tenant shall promptly take all actions at its
sole expense as are recommended by environmental engineers hired by Tenant
and
are necessary to return the Premises to the condition existing prior to the
introduction of any such Hazardous Materials to the Premises; provided, however,
that Landlord’s approval of such actions shall first be obtained,
9
which
approval shall not be unreasonably withheld so long as such actions would
not
reasonably be expected to have any material adverse long-term or short-term
effect on the Premises.
(e) Tenant
Records and Notification Obligation.
Tenant
shall promptly notify Landlord of any of the following: (i) Tenant’s receipt of
any written correspondence or communication from any Person regarding any
alleged violations in connection with the application of Environmental
Requirements to the Premises or Tenant’s operation of the Premises; (ii)
Tenant’s receipt of any written correspondence, communication or notification of
Tenant’s alleged non-compliance with either the federal or state Emergency
Planning and Community Right to Know Acts; (iii) any change in Tenant’s
operations on the Premises that will enlarge or has the potential to enlarge
Tenant’s obligations or liabilities under the Environmental Requirements; and
(iv) any Releases or suspected Releases of any and all Hazardous Materials
at,
from or near the Premises. Tenant shall provide Landlord with copies of all
reports, studies, complaints, claims, directives, citations, demands, inquiries,
notices of violation, or orders relating to Hazardous Materials at or emanating
from or to the Premises, at any time, or any alleged non-compliance with
Environmental Requirements at the Premises, reasonably promptly (and in no
event
later than fifteen (15) days) after such documents are provided to or generated
by Tenant. Landlord shall have the right, by written request to Tenant not
more
frequently than once in any calendar year, to require Tenant to provide to
Landlord copies of Tenant’s file with respect to environmental matters on the
Premises; provided, however, that (i) Tenant may exclude from such file any
materials that are subject to an attorney-client or other legally recognized
privilege to the extent necessary to prevent the waiver of such privilege
(collectively, “Privileged
Information”),
and
(ii) Tenant is not responsible for delivering duplicates of notices,
communications or correspondence previously provided to Landlord in accordance
with this Section 4.4(e). Upon such request, Tenant shall provide a copy of
all
correspondence, reports and other written material in Tenant’s environmental
file for the Premises, except for any Privileged Information.
(f) Landlord’s
Right of Entry.
At
Landlord’s expense and upon written notice as required below, Landlord, or its
representatives or consultants, shall have the right to enter upon the Premises
and make any inspection, tests, measurements, investigation or assessment
Landlord deems necessary in the exercise of its reasonable judgment in order
to
determine the presence of Hazardous Materials and/or to determine whether the
Premises are in compliance with applicable Environmental Requirements; provided,
however, that Landlord' right of entry as contemplated by this Section 4.4(f)
shall be limited to the following circumstances: (A) Landlord shall have a
reasonable suspicion that the Premises is in violation of applicable
Environmental Requirements, (B) in connection with a sale of the Premises,
(C)
in connection with a financing of the Premises, or (D) if required by the
mortgagee of the Premises. Landlord will not make borings on the Premises except
if strictly in compliance with the following: (i) borings are recommended by
an
environmental professional as that term is defined by ASTM following, or as
part
of, a Phase II Environmental Site Investigation, (ii) all borings will be made
during non-business hours, (iii) the borings will not unreasonably interfere
with access, parking or business operations at the Premises; and (iv) the
Premises will be promptly returned to their prior condition at Landlord's
expense. Any entry on the Premises by Landlord shall be performed in accordance
with the requirements of Article XII hereof. Nothing herein shall be deemed
to
require Landlord to conduct any such testing, measurement, investigation or
assessment. Landlord shall give Tenant a minimum of thirty (30) days’ written
notice prior to conducting any
10
(g) Intentionally
Omitted.
(h) Survival.
The
provisions of this Section 4.4 shall survive expiration or termination of this
Lease but nothing herein shall obligate Tenant for any Hazardous Materials
first
existing on the Premises after the date of expiration or termination of this
Lease and Tenant’s surrender and vacation of the Premises.
4.5 Intentionally
Omitted.
4.6 Continuous
Operations.
(a) Subject
to Tenant’s assignment and sublet rights under Article XIII hereof and subject
to the conditions expressly provided in this Section 4.6, Tenant shall remain
in
actual physical possession of the Premises, and continuously
operate its business, and fully stock and staff the Premises, during ordinary
business hours (which may be during evening hours only) at its sole cost and
expense throughout the Initial Term.
(b) Notwithstanding
the continuous operation covenant stated in Section 4.6(a) hereof, in the event
Tenant ceases business operations at the Premises, Tenant shall not be in
default of this Lease so long as (i) Tenant gives Landlord at least two (2)
days' prior written notice of the date that it intends to Cease Operations
(as
hereinafter defined), (ii) Tenant, at all times prior to the expiration of
the
Term (or an early termination thereof), performs, and remains fully liable
for,
all other covenants and obligations contemplated by this Lease, including but
not limited to, Tenant's obligation to pay Base Rent and Additional Rent, and
Tenant's maintenance, repair and indemnity obligations, (iii) Base Rent payable
for the period commencing on the first day Tenant is deemed to Cease Operations
shall increase by $_________, [TO
BE
1.50% OF THE ALLOCATED PURCHASE PRICE] until
the
date, if applicable, that Tenant re-commences business at the Premises, at
which
time, Base Rent shall equal the amount otherwise contemplated by Article 3
hereof, and (iv) Tenant
shall not, at any time during the Cease Operations period, Cease Operations
at
more than one (1) other premises (other than the Premises described herein),
in
the aggregate, under those
certain leases entered into between Landlord and Tenant more particularly
described in Exhibit
B
hereto
(the "Cease
Operations Lease Pool").
For
the purposes of this Lease, the term “Cease
Operations”
shall
mean the cessation of Tenant’s business at the Premises for more than ten (10)
consecutive days; provided, however, that such ten (10) day period shall not
include (a) any period during which Tenant is unable to operate its business
at
the Premises due
to
any acts of terrorism, strike, riots, acts of God, fire or other casualty,
shortages of labor or materials, war, governmental laws, regulations or
restrictions or other events beyond the control of Tenant (other than lack
of
funds)
11
4.7 Compliance
With Restrictions, Etc. Tenant,
at its expense, shall comply with all restrictive covenants, declarations,
reciprocal easement agreements or other title exceptions affecting the Premises
and comply with and perform all of the obligations set forth therein. Such
covenant shall not, however, be interpreted as a requirement of any type to
remove any such title exceptions from record. Landlord agrees to not enter
into
any new restrictive covenants, declarations, reciprocal easement agreements
or
other title exceptions affecting the Premises without Tenant’s prior approval of
the form and substance thereof, which approval shall not be unreasonably
withheld. In addition to Tenant’s payment obligations under this Lease, Tenant
shall pay all sums charged, levied or assessed under any restrictive covenants,
declaration, reciprocal easement agreement or other title exceptions affecting
the Premises promptly as the same become due and shall furnish Landlord evidence
of payment thereof. Further, to the extent required by applicable laws, Tenant
shall provide at its own cost and expense (i) automatic sprinkler protection
within the building located on the Land, and (ii) fire extinguishers in all
grease laden hoods and ducts in the cooking area of the Premises.
ARTICLE
V
TAXES,
ASSESSMENTS AND COMMON AREA MAINTENANCE CHARGES
5.1 Real
Estate Taxes and Assessments.
From
and
after the Effective Date and continuing throughout the Term, Tenant’s
obligations with respect to Real Estate Taxes (as hereinafter defined) shall
be
as follows:
(a) As
used
herein, “Real
Estate Taxes”
shall
mean all taxes, assessments and other governmental impositions and charges
of
every kind and nature whatsoever, extraordinary as well as ordinary, and each
and every installment thereof which shall or may either prior to the Term hereof
or during the Term hereof be charged, laid, levied, assessed, or imposed upon,
or arise in connection with, the use, occupancy or possession of the Premises
or
any part thereof, including, without limitation, ad valorem real and personal
property taxes, and all taxes charged, laid, levied, assessed or imposed in
lieu
of or in addition to any of the foregoing by virtue of all present or future
laws, ordinances, requirements, orders, directions, rules or regulations of
federal, state, county and municipal governments and of all other governmental
authorities whatsoever.
(b) (i)
Tenant shall (A) pay the Real Estate Taxes in full directly to the taxing
authorities, and (B) furnish Landlord with evidence showing payment of such
Real
Estate Taxes, in each case prior to the date of delinquency and before interest
or penalties are due thereon. Tenant shall promptly request that any xxxx or
invoice with respect to any Real Estate Taxes be forwarded directly to Tenant
for payment. Landlord agrees to execute documents reasonably necessary to
accomplish the foregoing. If received by Landlord, Landlord shall promptly
deliver to Tenant any xxxx or invoice with respect to any Real Estate Taxes;
provided, however, that Landlord shall not be liable for any additional expenses
incurred by Tenant due to Landlord’s failure to deliver such xxxx or invoice,
except as provided in Section 5.1(h) hereof.
12
(ii) Notwithstanding
the foregoing, from an after the second (2nd) monetary Event of Default (as
hereinafter defined) in any twelve (12) month period, Tenant shall pay the
Real
Estate Taxes in equal monthly installments in advance, together with its payment
of Base Rent, in such amounts as are reasonably estimated and billed by Landlord
based upon the total Real Estate Taxes for the preceding year (the “Estimated
Taxes”);
provided, however, that if, during the succeeding twenty four (24) month period
after Tenant is required to commence the payment of Estimated Taxes pursuant
to
this Section 5.1(b)(ii), no further monetary Events of Default have occurred,
Tenant's obligation to pay Estimated Taxes shall cease on the last day of the
month that is the twenty fourth (24th) month following Tenant's initial payment
of Estimated Taxes as contemplated hereunder and Tenant shall resume making
payments of Real Estate Taxes directly to the taxing authority as contemplated
by Section 5.1(b)(i) hereof, and Landlord shall promptly reimburse Tenant any
Estimated Taxes then held by Landlord upon receipt of a written request from
Tenant. Landlord may, once per calendar year, revise its estimate and may adjust
such monthly payment accordingly. Within ninety (90) days after Landlord’s
receipt all of the actual tax bills for such calendar year, Landlord will
deliver a statement (a “Statement”)
to
Tenant which will (A) specify the actual amount of Real Estate Taxes due on
the
Premises for such calendar year, (B) include a recalculation of Real Estate
Taxes for such calendar year based on the amount of the actual taxes for such
year (the “Actual
Taxes”);
(C)
include a copy of the tax xxxx or bills; and (D) set forth the Estimated Taxes
for the next calendar year. If the Statement shows that the Actual Taxes Tenant
owed for the prior calendar year were less than the Estimated Taxes paid by
Tenant for such calendar year, Landlord shall return the difference (an
“Overpayment”).
If
the Statement shows that the Actual Taxes Tenant owed for the prior calendar
year were more than the Estimated Taxes paid by Tenant for such calendar year,
Tenant shall return the difference (an “Underpayment”).
The
Overpayment or Underpayment shall be paid within thirty (30) days of delivery
of
the Statement to Tenant. Upon written request from Tenant, Landlord shall
deliver to Tenant evidence of the payment of the Real Estate Taxes for the
calendar year no later than thirty (30) days after the date Real Estate Taxes
would be delinquent.
(c) Tenant
shall have the right to participate in all negotiations of the Real Estate
Taxes
and shall also have the right to contest the validity or the amount of any
Real
Estate Taxes by such appellate or other proceedings as may be appropriate in
the
applicable jurisdiction, and may, if applicable, defer payment of such
obligations if payment would operate as a bar to such contest, and, if
applicable, pay same under protest, or take such other steps as Tenant may
deem
appropriate; provided, however, that Tenant indemnifies Landlord from any
expense (including reasonable attorney’s fees) or liability arising out of such
contest, pursues such contest in good faith and with due diligence, posts any
bond or security required by law in connection with such contest, gives Landlord
written notice of its intention to contest, and takes no action which shall
cause or allow the institution of any foreclosure proceedings or similar action
against the Premises. Landlord shall, at Tenant’s expense, cooperate in the
institution and prosecution of any such proceedings initiated by Tenant and
shall execute any documents which Landlord may reasonably be required to execute
and shall make any appearances which Landlord may reasonably be required to
make
in connection with such proceedings.
(d) Should
Landlord institute proceedings to contest the validity or the amount of any
Real
Estate Taxes, Tenant shall cooperate and shall make any appearances which Tenant
may reasonably be required to make in such proceedings but shall not be
obligated to incur any
13
(e) Should
any of the proceedings referred to in Sections 5.1(c) and (d) hereof result
in
reducing the total annual Real Estate Taxes, Tenant shall be entitled to receive
all refunds by the taxing authorities attributable to the Premises for any
period for which Tenant has paid Real Estate Taxes after deducting therefrom
payment of all of Landlord’s and Tenant’s out-of-pocket third party expenses
incurred in any such proceeding in which a refund is paid. If no refund shall
be
secured in any such proceeding, the party instituting the proceeding shall
bear
the entire cost, or if Landlord institutes the proceeding at Tenant’s request,
Tenant shall bear the entire cost.
(f) Nothing
in this Section 5.1 shall require Tenant to pay or reimburse Landlord for the
payment of (i) any income, profit, inheritance, estate, succession, gift,
franchise or transfer taxes which are or may be imposed upon Landlord, its
successors or assigns, by whatever authority imposed or however designated,
or
(ii) any tax, assessment, charge or levy imposed or levied upon or assessed
against any property of Landlord other than the Premises or any income to,
or
business activity of, Landlord not in connection with the Premises. Nothing
herein shall require Tenant to pay or reimburse Landlord for the payment of
any
tax if Tenant’s payment of such tax or reimbursement of Landlord for the payment
of such tax would violate any applicable law.
(g) Tenant
shall pay and discharge, when due, all taxes assessed during the Term against
any leasehold interest or personal property of any kind owned by or placed
in
the Premises by Tenant. In addition to the Rent and any other sums or amounts
required to be paid by Tenant to Landlord pursuant to the provisions of this
Lease, Tenant shall also pay to Landlord, simultaneously with such payment
of
such Rent or other sums or amounts, the amount of any applicable sales, use
or
excise tax on any such Rent or other sums or amounts so paid by Tenant to
Landlord, whether the same be levied, imposed or assessed by the State in which
the Premises are located or any other federal, state, county or municipal
governmental entity or agency. Any such sales, use or excise taxes shall be
paid
by Tenant to Landlord at the same time that each of the amounts with respect
to
which such taxes are payable are paid by Tenant to Landlord.
(h) Landlord’s
failure to deliver any tax xxxx or invoice in any time required herein shall
not
relieve Tenant of the ultimate responsibility for Tenant to pay any and all
said
Real Estate Taxes, except for any penalties or interest that result from said
late delivery by Landlord to Tenant.
5.2 Common
Area Maintenance Charges.
On
or after
the Effective Date and continuing throughout the Term, Tenant’s obligations with
respect to Common Area Maintenance Charges (as hereinafter defined) shall be
as
follows:
(a) As
used
herein, “Common
Area Maintenance Charges,”
also
known as “CAMS,”
shall
mean any charge, assessment or imposition of any kind or nature whatsoever,
14
created
or “passed through” to the owner or operator of the Premises relating to any and
all shared expenses within any shopping center or development in which the
Premises are located and which relate to any of the following (though such
list
is not intended to be exhaustive): the operating, leasing, equipping, lighting,
painting, cleaning, repairing, replacing, resurfacing, paving, repaving,
maintenance of any common areas within such shopping center or development,
including landscaping, traffic control, sanitary assessments and services,
snow
removal, trash removal, and security services, in addition to administrative
costs and other such costs as may be charged by the developer or owner of
the
shopping center or development to each and all users therein, including the
owner or operator of the Premises.
(b) Tenant
shall cause all statements relating to charges for CAMS to be directed to
Tenant, which will pay the same in accordance with the instruments which create
the CAMS obligation, including payment into any prescribed escrow account,
if
the CAMS are required to be escrowed.
(c) Tenant
shall have the right to participate in any and all negotiations regarding
reallocation or re-proration of CAMS with the owner or developer of such
shopping center or development. In the event that litigation stems from such
negotiations, Landlord will cooperate with Tenant and make such appearances
as
are reasonably necessary by Landlord. However, all costs relating to any such
contest will be solely borne by Tenant.
(d) In
the
event any sums remain in a CAMS escrow following expiration of the Term,
Landlord will promptly remit to Tenant such sum following expiration of the
Term.
ARTICLE
VI
UTILITIES
6.1 Utilities. Tenant
shall be liable for and shall pay directly all charges, rents and fees (together
with any applicable taxes or assessments thereon) when due for water, gas,
electricity, air conditioning, heat, septic, sewer, refuse collection, telephone
and any other utility charges or similar items in connection with the use or
occupancy of the Premises before and/or during the Term. Landlord shall not
be
responsible or liable in any way whatsoever for the impairment, interruption,
stoppage or other interference with any utility services to the Premises not
caused by Landlord, its agents, employees, contractors, invitees or licensees.
In any event, no interruption, termination or cessation of utility services
to
the Premises shall relieve Tenant of its duties and obligations pursuant to
this
Lease, including, without limitation, its obligation to pay all Rent as and
when
the same shall be due hereunder.
ARTICLE
VII
INSURANCE
7.1 Insurance
by Tenant.
From and
after the Effective Date and continuing throughout the Term, Tenant shall,
at
its sole cost and expense, maintain in full force and effect the following
types
and amounts of insurance coverage:
(a) Special
form insurance on the Improvements (together with the machinery and equipment
which are attached to the Improvements in such a manner as to become fixtures
(the “Equipment”)),
including all permitted alterations, changes, additions and
replacements
15
(b) Commercial
general liability and property damage insurance providing coverage against
liability for personal and bodily injury, death, property damage and liquor
liability having limits of not less than One Million Dollars ($1,000,000.00)
(which amount shall increase by ten percent (10%) upon the commencement of
the
fifth Lease Year and every five (5) years thereafter) per occurrence with a
general aggregate of not less than Three Million Dollars ($3,000,000.00) (which
amount shall increase by ten percent (10%) upon the commencement of the fifth
Lease Year and every five (5) years thereafter), and with an umbrella liability
policy in the amount of Five Million Dollars ($5,000,000.00) (which amount
shall
increase by ten percent (10%) upon the commencement of the fifth Lease Year
and
every five (5) years thereafter) ("Tenant's
General Liability Insurance").
Such
insurance shall cover at least the following hazards: (i) premises and
operations; (ii) products and completed operations; (iii) independent
contractors; (iv) blanket contractual liability for all written and oral
contracts; and (v) contractual liability covering the indemnities contained
in
this Lease to the extent the same is available. Such insurance may be subject
to
a self-insured retention or deductible (the “Retention”),
subject to Section 7.1(h) hereof, not in excess of Two Hundred Fifty Thousand
Dollars ($250,000.00), which amount shall increase by ten percent (10%) upon
the
commencement of the fifth Lease Year and every five (5) years thereafter. Such
insurance, and any and all other liability insurance maintained by Tenant in
excess of or in addition to that required hereunder, shall name Landlord as
an
additional insured. Notwithstanding anything to the contrary stated herein,
Tenant may satisfy the requirements of this Section 7.1(b) by Tenant's primary
or umbrella insurance policies.
(c) Workers’
compensation insurance, in a form prescribed by the laws of the State in which
the Premises are located, and employers’ liability insurance.
(d) Builders’
risk insurance in accordance with the requirements of this Article VII, but
only
prior to the commencement of and during the construction of any permitted
16
(e) Business
interruption insurance in favor of Tenant, without a provision for co-insurance,
in an amount sufficient to allow Tenant to pay Rent for the period of
interruption, with a policy coverage limit of not less than the amount of Rent
then payable by Tenant for twelve (12) consecutive calendar months.
(f) Flood
hazard insurance if any portion of the Improvements is currently or at any
time
in the future located in a federally designated “special flood hazard area” and
in which flood insurance has been made available under the National Flood
Insurance Act of 1968 (and any successor thereto) in an amount which reasonably
assures that there will be sufficient proceeds to replace the Improvements
in
the event of a loss against which such insurance is issued; provided, however,
that such insurance shall provide, subject to Section 7.1(h) hereof, for a
loss
deductible limit (the “Flood
Limit”)
in an
amount reasonably required for similar operations as those conducted by Tenant
at the Premises in the same geographic area as the Premises.
(g) Earthquake
insurance, but only if the Premises are located in an a high risk earthquake
area, in amounts, form and substance satisfactory to Landlord, and be on terms
consistent with the all risk insurance policy required under Section 7.1(a)
hereof; provided, however, that such insurance shall provide, subject to Section
7.1(h) hereof, for a loss deductible limit (the “Earthquake
Limit”)
in an
amount reasonably required for similar operations as those conducted by Tenant
at the Premises in the same geographic area as the Premises.
(h) Notwithstanding
the terms of Sections 7.1(a), (b) and (g) hereof, Tenant shall have the right,
during any period that Tenant’s long-term unsecured debt is rated not less than
BB+ by Standard & Poor’s (as hereinafter defined) or Ba1 by Moody’s (as
hereinafter defined), to increase the amounts of any of the Deductible, the
Retention, the Earthquake Limit, and the Flood Limit to such higher amounts
that
are then customary in the relevant insurance markets for comparable properties,
as reasonably requested by Tenant and approved by Landlord.
(i) If
not
otherwise insured for under Tenant's General Liability Insurance and if Tenant’s
use of the Premises involves selling or distributing alcoholic beverages for
on-Premises consumption, Tenant shall provide, keep and maintain in full force
and effect liquor liability insurance, which may be satisfied by any combination
of primary and/or umbrella coverage, in the amount of not less than Two Million
Dollars ($2,000,000.00). Such insurance, if separate from the General Liability
Insurance policy, may be subject to a commercially reasonable self-insurance
retention or deductible not in excess of One Million Dollars
($1,000,000.00).
(j) If
required by Lender, insurance coverage against loss or damage to persons and
property by reason of any act of terrorism, to the extent such coverage is
commercially available at a commercially reasonable cost.
17
(k) In
addition, Tenant shall, at Landlord’s request, not to be unreasonably made,
provide, keep and maintain in full force and effect such other insurance for
such risks and in such amounts as may from time to time be commonly insured
against in the case of business operations similar to those conducted by Tenant
at the Premises in the same geographic area as the Premises.
(l) Notwithstanding
anything to the contrary stated in this Section 7.1, Tenant shall self-insure
for the total replacement value of the Premises in connection with any casualty
not otherwise covered under the insurance policies required herein.
7.2 Carriers
and Features.
(a) All
insurance policies required to be carried by Tenant as provided in this Article
VII shall be issued by insurance companies authorized and licensed to do
business in the State in which the Premises are located. The insurance companies
must have: (i) claims paying ability rating by Standard & Poor’s of not less
than A-, and (ii) a general policy rating of A- or better and a financial class
of VIII or better assigned by A.M. Best Company, Inc. All such policies shall
be
for periods of not less than one year, and Tenant shall provide to Landlord,
not
less than three (3) business days prior to the expiration of existing policies,
evidence that renewal or replacement policies shall be in place upon the
expiration of such existing policies without any interruption in coverage.
All
such policies shall name Landlord, as well as any Lender or collateral assignee
of Landlord, as additional insureds or loss payees, as appropriate, and shall
require not less than ten (10) days’ written notice to Landlord prior to any
cancellation thereof or any change reducing coverage thereunder. In addition
to
the foregoing, all policies of insurance required in Section 7.1 hereof shall
contain clauses or endorsements to the effect that (i) no act or negligence
of
Tenant, or anyone acting for Tenant, or failure to comply with the provisions
of
any policy which might otherwise result in a forfeiture of the insurance or
any
part thereof, shall in any way affect the validity or enforceability of the
insurance insofar as Landlord is concerned, and (ii) Landlord shall not be
liable for any insurance premiums thereon or subject to any assessments
thereunder. Each policy shall also provide evidence of such insurance to
Landlord and any mortgagee of Landlord on an XXXXX 27 form or equivalent;
provided, however, that in the event that such form is no longer available,
such
evidence of insurance is in a form reasonably satisfactory to Landlord and
Lender.
(b) Tenant
shall pay the premiums for all insurance policies which Tenant is obligated
to
carry under this Article VII and, at least ten (10) days prior to the date
any
such insurance must be in effect, deliver to Landlord a copy of the policy
or
policies, or a certificate or certificates thereof (on XXXXX 27 forms or
equivalent), along with evidence that the premiums therefor have been paid
for
at least the next ensuing quarter-annual period.
7.3 Failure
to Procure Insurance. In
the
event Tenant shall fail to procure insurance required under this Article VII
and
fail to maintain the same in full force and effect continuously during the
Term,
Landlord shall be entitled to immediately procure the same and Tenant shall,
within two (2) business days after demand therefor, reimburse Landlord for
such
premium expense as Additional Rent.
7.4 Waiver
of Subrogation. Subject
to Landlord's gross negligence or intentional misconduct, Tenant agrees that,
if
any property owned by it and located in the Premises shall be stolen, damaged
or
destroyed by an insured peril, Landlord shall not have any
18
7.5 Blanket
Policy. Anything
in this Article VII to the contrary notwithstanding, any insurance which Tenant
is required to obtain pursuant to Section 7.1(a) hereof may be carried under
a
“blanket” policy or policies covering other properties of Tenant; provided,
however, that such “blanket” policy or policies have an aggregate limit of not
less than Twenty-Five Million Dollars ($25,000,000.00) (which amount shall
increase by ten percent (10%) upon the commencement of the fifth Lease Year
and
every five (5) years thereafter) and otherwise comply with the provisions of
this Article VII. In the event any such insurance is carried under a blanket
policy, Tenant shall deliver to Landlord and Lender evidence of the issuance
and
effectiveness of the policy, the amount and character of the coverage with
respect to the Premises and the presence in the policy of provisions of the
character required in the above sections of this Article VII.
ARTICLE
VIII
ADDITIONS,
ALTERATIONS AND REMOVALS
8.1 Prohibition. Except
as
hereinafter expressly provided in Section 8.2 hereof, no portion of the Premises
shall be demolished, removed or altered by Tenant in any manner whatsoever
without the prior written consent and approval of Landlord, which may be
withheld by Landlord in its sole and absolute discretion.
8.2 Permitted
and Required Renovations.
(a) Landlord
and Tenant acknowledge that (i) Tenant shall be obligated to undertake all
alterations to the Premises required by any applicable law or ordinance
including, without limitation, any alterations required by any Accessibility
Laws, (ii) Tenant may make Minor Alterations (as hereinafter defined) from
time
to time during the Term without Landlord’s consent, and (iii) Tenant shall not
make Major Alterations (as hereinafter defined) during the Term without
Landlord’s prior consent, not to be unreasonably withheld, conditioned or
delayed. As used herein, the term “Minor
Alterations”
shall
mean interior, non-structural alterations or exterior, non-structural
alterations which (A) cost less than [INSERT
15% OF PURCHASE PRICE], in
the
aggregate, which amount shall increase by two percent (2%) per annum for each
Lease Year, and
(B)
do not cause the use of the Premises to be in violation of Section 4.1 hereof.
As used herein, the term “Major
Alternations”
shall
mean all alterations or renovations that are not Minor Alterations.
(b) Notwithstanding
anything else contained herein, the following conditions shall be met by Tenant
when performing any and all alterations or renovations to the
Premises:
(i) No
Event
of Default (as hereinafter defined) shall then exist.
(ii) Tenant
shall provide Landlord with prior written notice before undertaking any
alterations or renovations except for such alterations or renovations that
are
interior, non-structural and decorative in nature and cost less than
[INSERT
5% OF
19
(iii) No
such
alterations or renovations shall be undertaken by Tenant which, when completed,
materially and adversely affect the fair market value of the Premises,
materially reduce the square footage of the Premises, or impair the structural
integrity of the Premises.
(iv) All
such
alterations or renovations shall be subject to the reversionary interest of
Landlord and shall be subject to this Lease. Tenant will be solely entitled
to
amortize the cost of such alterations or renovations during the
Term.
(v) No
such
alterations or renovations shall create any debt or other encumbrance(s) on
the
Premises.
(vi) Before
the commencement of any Major Alterations, Tenant shall furnish to Landlord
plans and specifications therefor, an estimated budget and a proposed schedule
of construction with respect thereto.
(vii) Before
the commencement of any such alterations or renovations, Tenant shall obtain
the
approval thereof by all governmental departments or authorities having or
claiming jurisdiction of or over the Premises, if required by such departments
or authorities, and with any public utility companies having an interest
therein, if required by such utility companies. In any such work, Tenant shall
comply with all applicable laws, ordinances, requirements, orders, directions,
rules and regulations of the federal, state, county and municipal governments
and of all other governmental authorities having or claiming jurisdiction of
or
over the Premises and of all their respective departments, bureaus and offices,
and with the requirements and regulations, if any, of such public utilities,
of
the insurance underwriting board or insurance inspection bureau having or
claiming jurisdiction, or any other body exercising similar functions, and
of
all insurance companies then writing policies covering the Premises or any
part
thereof.
(viii) Tenant
represents and warrants to Landlord that all such alterations or renovations
will be performed in a good and workmanlike manner, in accordance with the
terms, provisions and conditions of this Lease and all governmental
requirements.
(ix) Landlord
shall have the right to inspect any such work at all times during normal working
hours as it may deem reasonably necessary so long as such inspections do not
interfere with Tenant’s work (but Landlord shall not thereby assume any
responsibility for the proper completion of the alterations in accordance with
the terms of this Lease, nor any liability arising from the improper performance
thereof).
(x) All
such
alterations or renovations shall be performed at Tenant’s cost and expense and
free of any expense to Landlord and free of any liens on Landlord’s title to or
Tenant’s leasehold interest in the Premises, subject to the terms of Article XIV
hereof.
(xi) If
required by the local governmental authority, upon substantial completion of
any
such alterations or renovations Tenant shall procure a certificate of occupancy
20
(xii) Tenant
shall, and hereby agrees to, indemnify and save and hold Landlord harmless
from
and against and reimburse Landlord for any and all loss, damage, cost and
expense (including, without limitation, reasonable attorneys’ fees) incurred by
or asserted against Landlord which is occasioned by or results, directly or
indirectly, from any construction or renovation activities conducted upon the
Premises, whether or not the same is caused by or is the fault of Tenant or
any
contractor, subcontractor, laborer, supplier, materialman or any other third
party.
ARTICLE
IX
MAINTENANCE
AND REPAIRS
9.1 Repairs
by Tenant. Throughout
the Term Tenant shall at all times and at its sole cost and expense, put, keep,
replace and maintain the Premises (including, without limitation, the roof,
plumbing systems, electric systems and HVAC systems) in good repair and in
good,
safe and substantial order and condition, shall make all repairs and
replacements thereto, both inside and outside, structural and non-structural,
ordinary and extraordinary, howsoever the necessity or desirability for repairs
or replacements may occur, and whether or not necessitated by wear, tear,
obsolescence or defects, latent or otherwise, and shall use all commercially
reasonable precautions to prevent waste, damage or injury. At its own cost
and
expense, Tenant also shall put, keep, replace and maintain, or cause to be
put,
kept, replaced and maintained in the event that third parties are so obligated
pursuant to the terms of agreements or declarations applicable to the Premises,
all landscaping, signs, sidewalks, roadways, driveways and parking areas within
the Premises in good repair and in good, safe and substantial order and
condition and free from dirt, standing water (other than resulting from a
temporary weather condition), rubbish and other obstructions or obstacles.
Tenant agrees not to defer any maintenance, repair or replacement work
constituting a Capital Improvement (as hereinafter defined) during the last
twenty-four (24) months of the Term. Notwithstanding the foregoing, if during
the last twenty-four (24) months of the Term, Landlord shall require Tenant
to
perform a Capital Improvement, which exceeds Tenant’s reasonable repair and
maintenance obligations as contained in this Lease, then the cost of any item
of
maintenance, repair or replacement required by Landlord hereunder that
constitutes such Capital Improvement shall be amortized over the useful life
of
such item (based on engineering specifications, or if such engineering
specifications are not available, based on the mutual agreement of Landlord
or
Tenant, with disputes being subject to arbitration) and Landlord shall reimburse
Tenant for the unamortized portion thereof that extends beyond the expiration
of
the Term. The term “Capital
Improvement”
shall
mean any maintenance, repair or replacement, the cost of which would be
characterized as a capital expense under GAAP (as hereinafter defined).
Notwithstanding anything to the contrary stated herein, if (i) Landlord
reimburses Tenant for the unamortized portion of any Capital Improvement, in
accordance with this Section 9.1, and (ii) Tenant exercises an Option to extend
the Lease beyond the Term contemplated at the time such twenty-four (24) month
period was calculated, Tenant shall immediately refund to Landlord any such
reimbursement actually paid by Landlord to Tenant, to the extent such
reimbursement equals the unamortized cost of such Capital Improvement during
the
term of any Option Period actually exercised by Tenant.
21
9.2 Landlord’s
Obligation. Landlord
shall not be required to make any alterations, reconstructions, replacements,
changes, additions, improvements, repairs or replacements of any kind or nature
whatsoever to the Premises or any portion thereof (including, without
limitation, any portion of the Improvements) at any time during the
Term.
ARTICLE
X
DAMAGE
OR
DESTRUCTION
10.1 Restoration
and Repair. If,
during the Term, the Improvements shall be destroyed or damaged in whole or
in
part by fire, windstorm or any other cause whatsoever, Tenant shall (i) if
such
damage or destruction (in Tenant’s commercially reasonable judgment) will cost
more than Fifty Thousand Dollars ($50,000.00), which amount shall increase
by
two percent (2%) per annum for each Lease Year, to restore and repair, give
Landlord immediate notice thereof, and (ii) repair, reconstruct or replace
the
Improvements, or the portion thereof so destroyed or damaged (whichever is
reasonably required), with commercially reasonable diligence. Except as
otherwise provided at Sections 10.5 and 11.2, all work shall be started as
soon
as practicable, subject to reasonable delays due to Force Majeure and completed,
at Tenant’s sole cost and expense. Tenant shall, however, immediately take such
action as is necessary to assure that the Premises (or any portion thereof)
do
not constitute a nuisance or otherwise present a health or safety
hazard.
10.2 Escrow
of Insurance Proceeds. Tenant
shall adjust, collect and compromise any and all claims, with the consent of
Landlord and Lender, not to be unreasonably withheld, delayed or conditioned,
and Landlord and Lender shall have the right to join with Tenant therein. In
the
event of a casualty resulting in a loss payment for the Improvements in an
amount greater than One Hundred Thousand Dollars ($100,000.00) (which amount
shall be increased by two percent (2%) per annum for each Lease Year), the
proceeds of all insurance policies maintained by Tenant shall be deposited
in
Landlord’s name in an escrow account at a bank or other financial institution
designated by Landlord, and shall be used by Tenant for the repair,
reconstruction or restoration of the Improvements. Such proceeds shall be
disbursed periodically, but no less often than once a month subject to Tenant's
satisfaction of the requirements of this Section 10.2, by Landlord upon
certification of the architect or engineer having supervision of the work,
or
upon certification by Tenant together with such other documentation reasonably
acceptable to Landlord, confirming that such amounts are the amounts paid or
payable for the repair, reconstruction or restoration. Tenant shall, at the
time
of establishment of such escrow account and from time to time thereafter until
said work shall have been completed and paid for, furnish Landlord with adequate
evidence that at all times the undisbursed portion of the escrowed funds,
together with any funds made available by Tenant, is sufficient to pay for
the
repair, reconstruction or restoration in its entirety or the remaining portion
thereof. Tenant shall obtain and make receipted bills available to Landlord
and,
upon completion of said work, full and final waivers of lien. In the event
of a
casualty resulting in a loss payment for the Improvements in an amount equal
to
or less than the amount stated above, the proceeds shall be paid to Tenant,
and
shall be applied towards repair, reconstruction and restoration.
22
10.3 Uninsured
Losses. Nothing
contained herein shall relieve Tenant of its obligations under this Article
X if
the destruction or damage is not covered, either in whole or in part, by
insurance.
10.4 No
Abatement of Rent. In
the
event of any casualty (whether or not insured against) resulting in damage
to
the Premises or any part thereof, the Term shall nevertheless continue and
there
shall be no abatement or reduction of Rent or any other sums payable by Tenant
hereunder until the expiration or earlier termination of the Term.
10.5 Material
Casualty. Notwithstanding
anything in this Article X to the contrary, if (i) the cost of restoration
and
repair exceeds forty percent (40%) or more of the replacement value of the
Improvements, (ii) the time period to complete the restoration and repair work
with reasonable diligence is longer than one hundred and twenty (120) days,
or
(iii) a casualty occurs in the last twelve (12) months of the Term (a
“Material
Casualty”),
each
as determined by Tenant in its commercially reasonable judgment, then Tenant
may, not later than sixty (60) days after such Material Casualty has occurred,
(A) offer in writing (which offer may be rejected by Landlord pursuant to
Section 10.5(a) hereof) to cause a Substitution pursuant to Article XX hereof
(a
“Casualty
Substitution Offer”),
or
(B) notify Landlord in writing of its election to terminate this Lease pursuant
to Section 10.5(c) hereof (the “Tenant’s
Casualty Termination Notice”).
(a) If
Landlord and Lender shall not elect to accept Tenant’s Casualty Substitution
Offer, Landlord shall give notice thereof to Tenant within one hundred twenty
(120) days after receipt of the Casualty Substitution Offer. In such event,
this
Lease shall terminate on the next Base Rent payment date (the “Casualty
Substitution Termination Date”)
and
Tenant shall have no obligation to commence or complete the restoration of
the
Improvements, subject to Landlord's receipt of (A) the Casualty Termination
Payment (as hereinafter defined), (B) all of the insurance proceeds payable
in
connection with the Material Casualty, and (C) the amount of any Deductible,
Retention or amounts representing any Tenant obligation to self insure
hereunder. This Lease shall remain in full force and effect prior to the
Casualty Substitution Termination Date. Any notice from Landlord not to accept
a
Casualty Substitution Offer shall be void and of no effect unless accompanied
by
the written notice of Lender to the effect that Lender also elects not to accept
such Casualty Substitution Offer.
(b) If
Landlord and Lender accept the Casualty Substitution Offer, the Substitution
shall be made (i) pursuant to Article XX hereof, and (ii) within two hundred
seventy (270) days after the Material Casualty. This Lease shall remain in
full
force and effect with respect to the Premises unless and until the Substitution
is completed. Upon the Substitution, Tenant shall be entitled to the entire
amount of insurance proceeds payable in connection with such Material
Casualty.
(c) Any
Tenant’s Casualty Termination Notice shall (i) specify the Base Rent payment
date on which this Lease shall terminate (the “Casualty
Termination Date”),
and
(ii) acknowledge that such termination is conditioned upon Tenant’s payment to
Landlord of the Casualty Termination Payment on or before the Casualty
Termination Date. In such event, on the Casualty Termination Date (A) Landlord
shall be in receipt of the Casualty Termination Payment, (B) this Lease and
the
Term hereof shall terminate, (C) Tenant shall have no obligation
23
(d) In
the
event of a Substitution, or a termination of this Lease, as contemplated in
this
Section 10.5, Tenant shall cause "Exhibit B" attached to each lease in the
then-current Cease Operations Lease Pool to be updated to reflect such
Substitution or termination, as applicable.
ARTICLE
XI
CONDEMNATION
11.1 Non-Material
Taking. If
the
Premises shall be permanently taken or condemned for any public or quasi-public
use or purpose, by right of eminent domain or by purchase in lieu thereof (a
“Taking”),
and
such Taking is not a Material Taking (as hereinafter defined), then Tenant
shall
promptly restore the remaining portion or portions thereof to a condition
comparable to their condition at the time of such Taking, less the portion
or
portions lost by the Taking, and this Lease shall continue in full force and
effect and Rent shall not xxxxx during such restoration (except that after
the
completion of such restoration the Base Rent payable hereunder shall, if
necessary, be equitably adjusted on a prospective basis to take into account
the
Net Award (as hereinafter defined) that is retained by Landlord after such
restoration. As used herein, “Net
Award”
shall
mean the entire award payable to Landlord by reason of a Taking, less the sum
of
(i) any reasonable expenses incurred by Landlord in collecting such award,
and
(ii) the amount of the award applied to the cost of restoration.
11.2 Material
Taking. If
(i)
the Taking shall be of all of the Premises, or (ii) the Taking is for less
than
all of the Premises, but Tenant does not want to restore the Premises because
(A) the access points to the Premises are taken or materially impaired such
that
the Premises do not have commercially reasonable access for Tenant’s business
operations and as a result the Premises are effectively rendered untenantable,
(B) the Taking results in a loss of ten percent (10%) or more of the parking
area on the Premises or reduces the parking capacity below that required by
any
local zoning or other applicable regulations, (C) the Taking results in the
permanent closure or removal of a portion of the Improvements such that the
remaining Premises
24
(a) If
Landlord and Lender shall not elect to accept Tenant’s Taking Substitution
Offer, Landlord shall give notice thereof to Tenant within one hundred twenty
(120) days after receipt of the Taking Substitution Offer. In such event, this
Lease shall terminate on the next Base Rent payment date (the “Taking
Substitution Termination Date”),
subject to payment by Tenant to Landlord of the sum of (i) the Taking
Termination Payment (as hereinafter defined), and (ii) the entire amount of
the
award payable in connection with such Material Taking. This Lease shall remain
in full force and effect prior to the Taking Substitution Termination Date.
Any
notice from Landlord not to accept a Taking Substitution Offer shall be void
and
of no effect unless accompanied by the written notice of Lender to the effect
that Lender also elects not to accept such Taking Substitution
Offer.
(b) If
Landlord and Lender accept the Taking Substitution Offer, the Substitution
shall
be made (i) pursuant to Article XX hereof, and (ii) within two hundred seventy
(270) days after the Material Taking. This Lease shall remain in full force
and
effect with respect to the Premises unless and until the Substitution is
completed. Upon the Substitution, Tenant shall be entitled to the entire amount
of the award payable in connection with such Material Taking.
(c) Any
Tenant’s Taking Termination Notice shall (i) specify the Base Rent payment date
on which this Lease shall terminate (the “Taking
Termination Date”),
and
(ii) acknowledge that such termination is conditioned upon Tenant’s payment to
Landlord of the Taking Termination Payment (as hereinafter defined) on or before
the Taking Termination Date. In such event, on the Taking Termination Date
(A)
Landlord shall be in receipt of the Taking Termination Payment, (B) this Lease
and the Term hereof shall terminate, (C) Tenant shall have no obligation to
commence or complete the restoration of the Improvements, and (D) all of the
award payable in connection with the Material Taking shall be paid to Landlord.
The “Taking
Termination Payment”
shall
be an amount equal to the sum of (i) the Base Rent and Additional Rent due
under
the Lease as of the Taking Termination Date, (ii) any other amounts due under
the Lease as of the Taking Termination Date, (iii) the aggregate remaining
Base
Rent and Additional Rent payable by Tenant hereunder for the Initial Term (or
any Option Period for which the Term has been extended), discounted to present
worth at a discount rate equal to the then
current yield of U.S. Treasury securities having a maturity closest to the
then
remaining Term plus one hundred (100) basis points (provided,
however, Tenant shall not be liable for, and any amounts pursuant to this
provision (iii), which, when added to the award payable in connection with
the
Material Taking, exceed one hundred and five percent (105%) of the purchase
price paid by the then-current Landlord under this Lease in connection with
its
purchase of the Premises),
(iv) any
out-of-pocket costs, charges or penalties (including prepayment or defeasance
costs and penalties), if any, incurred by Landlord and Lender as a result of
the
prepayment or defeasance of the Note, and (v) any other amounts that are due
and
25
(d) In
the
event of a Substitution, or a termination of this Lease, as contemplated in
this
Section 11.2, Tenant shall cause "Exhibit B" attached to each lease in the
then-current Cease Operations Lease Pool to be updated to reflect such
Substitution or termination, as applicable.
11.3 Award. The
entire award for the Premises or the portion or portions thereof so taken shall
be apportioned between Landlord and Tenant as follows: (i) if this Lease
terminates due to a Taking, Landlord shall be entitled to the entire award;
(ii)
if this Lease does not terminate due to a Taking, Tenant shall be entitled
to
the award to the extent required for restoration of the Premises, and Landlord
shall be entitled to the balance of the award not applied to restoration. If
this Lease does not terminate due to a Taking, Tenant shall, with due diligence,
restore the remaining portion or portions of the Premises in the manner
hereinabove provided. In such event, the proceeds of the award to be applied
to
restoration shall be deposited with a bank or financial institution designated
by Landlord as if such award were insurance proceeds, and the amount so
deposited will thereafter be treated in the same manner as insurance proceeds
are to be treated under Article X hereof until the restoration has been
completed and Tenant has been reimbursed for all the costs and expenses thereof.
If the award is insufficient to pay for the restoration, Tenant shall be
responsible for the remaining cost and expense of such restoration. Nothing
in
this Lease shall be deemed to assign to Landlord or Lender any award relating
to
the value of the leasehold interest created by this Lease or any award or
payment on account of Tenant’s trade fixtures, business interruption and
Tenant’s moving expenses and out-of-pocket expenses incidental to the move, and
if available, to the extent Tenant shall have a right to make a separate claim
therefor against the condemnor, it being agreed, however, that Tenant shall
in
no event be entitled to any payment that reduces the award to which Landlord
is
or would be entitled for the Taking of Landlord’s interest in the
Premises.
11.4 Disputes. If
Landlord and Tenant cannot agree in respect of any matters to be determined
under this Article XI, a determination shall be requested of the court having
jurisdiction over the Taking; provided, however, that if said court will not
accept such matters for determination, either party may have the matters
determined by a court otherwise having jurisdiction over the
parties.
ARTICLE
XII
LANDLORD’S
RIGHT
TO INSPECT
12.1 Landlord’s
Right to Inspect. Landlord
and its agents shall have the right to enter upon the Premises or any portion
thereof at any reasonable time and upon twenty-four (24) hour prior written
notice (except during an emergency, at which time only reasonable prior notice
shall be required) to inspect the operation, sanitation, safety, maintenance
and
use of the same, or any portions of the same and to assure itself that Tenant
is
in full compliance with its obligations under this Lease (but Landlord shall
not
thereby assume any responsibility for the performance of any of Tenant’s
obligations hereunder, nor any liability arising from the improper performance
thereof). In making any such inspections, Landlord shall not unduly interrupt
26
ARTICLE
XIII
ASSIGNMENT
AND SUBLETTING
13.1 Assignment
and Subletting.
(a) Tenant
may from time to time, without the consent of Landlord but with prior written
notice to Landlord, (A) assign its interest in this Lease to an Affiliate (as
hereinafter defined) of Tenant, and (B) sublet the Premises in whole or in
part,
in each case for the uses permitted hereunder. Tenant shall remain primarily
liable and responsible under this Lease in the event of any such assignment
or
subletting and shall not be released from its obligations
hereunder.
(b) Tenant
may from time to time, with the prior consent of Landlord, which consent shall
not be unreasonably withheld, delayed or conditioned, assign its interest in
this Lease to a Person that is not an Affiliate of Tenant for the uses permitted
hereunder; provided, however, that, notwithstanding the terms of this Article
XIII, (i) a merger or consolidation by Tenant with another Entity (as
hereinafter defined), (ii) except as expressly provided, herein, a sale of
all
or substantially all of the assets or the equity ownership interests of Tenant
to another Person, (iii) an initial public offering of the securities of Tenant,
or (iv) a change in control of Tenant while its equity securities are listed
on
a public securities exchange or over-the-counter market, any of which is deemed
to be an assignment of this Lease pursuant to Section 23.17 hereof, shall not
require the prior consent of Landlord. At least ten (10) days prior to an such
assignment, Tenant shall deliver to Landlord written notice thereof, accompanied
by a copy of the instrument(s) of assignment, and evidence that any such
assignee shall agree in writing to assume and perform all of the terms and
conditions of this Lease on Tenant’s part to be performed with respect to the
assigned estate from and after the commencement date of such assignment. Tenant
shall remain primarily liable and responsible under this Lease in the event
of
any such assignment and shall not be released from its obligations
hereunder.
(c) Any
assignment of this Lease or subletting of the Premises without notification
to
Landlord shall not be effective as to Landlord and Landlord shall not be bound
thereby until receipt of such notification. Any assignment of this Lease or
subletting of the Premises for an unlawful or prohibited use or a use restricted
by matters of title shall be void and of no force and effect. Landlord shall
have no obligation to recognize any or to agree to not disturb any subtenant
of
Tenant upon any Event of Default of Tenant under this Lease.
(d) Each
assignment of this Lease or subletting of the Premises or any part thereof
shall
be subject and subordinate to the provisions of this Lease and any Mortgage
(as
hereinafter defined). No assignment or subletting shall impose any obligations
on Landlord under this Lease except as otherwise provided in this Lease. Any
subletting of the Premises or any part thereof shall be for a term that expires
no later than one day before the expiration of the Term.
27
(e) Tenant
may encumber or otherwise mortgage its leasehold interest under this Lease;
provided, however, that (A) any such encumbrance shall, by its express terms,
(i) not encumber Landlord's interest in the Premises, and (ii) be subordinate
to
any Mortgage (as hereinafter defined) (provided, however, that the holder of
such encumbrance shall not be disturbed so long as no Event of Default exists),
and (B) Landlord, Lender and the holder of such encumbrance shall enter into
a
subordination, non-disturbance agreement in the form attached hereto as
Exhibit
C.
(f) Tenant
shall be solely entitled to all payments under any sublease; provided, however,
that during the existence of any Event of Default under this Lease, Landlord
shall have the right to collect and enjoy all rents and other sums of money
payable under any subletting of the Premises, and Tenant hereby irrevocably
and
unconditionally assigns such rents and money to Landlord, which assignment
may
be exercised upon and after (but not before) the occurrence of the Event of
Default.
(g) Tenant
will be solely entitled to any consideration paid by an assignee or subtenant
for Tenant’s Personal Property (as hereinafter defined), and Tenant may freely
encumber such assets. As used herein, “Personal
Property”
shall
mean the following, whether now or hereafter owned or acquired by Tenant, or
in
which Tenant has any interest: all licenses, trademarks, trade dress, service
marks, logos or insignia, any written or oral contracts, agreements,
indemnities, licenses, permits and/or approvals pertaining to the purveying,
inventory or supply of food and/or stocking, sale or consumption of alcoholic
beverages upon any portion of the Premises, any signage boards or any
intellectual property rights whatsoever as may be owned or exist in favor of
Tenant, or its respective successors or assigns, pertaining to the business(es)
operating or to operate upon or within any portion of the Premises, all
furniture, trade fixtures, sign posts, sign standards, signage panels, any
other
fixtures (including, but not limited to, window grills and Tenant’s branded
bar-tops) containing protected intellectual property owned by or licensed to
Tenant, any accounts or deposits, financial information, books and/or records
of
Tenant, neon signage, food and customer service equipment (whether unattached
or
attached to the Improvements by bolts and screws and/or by utility connections),
removable equipment, any and all inventory existing within or upon the Premises
(including, without limitation, supplies, foods and beverages), and other items
of personal property now owned, acquired, held or used by Tenant in its
restaurant operations, and all additions to, substitutions for and replacements
of the foregoing; provided, however, that, notwithstanding the foregoing, the
term “Personal Property” specifically excludes and does not include (except to
the extent deemed part of Tenant’s intellectual property or “branding” property)
the following items, all of which shall be deemed, as between Tenant and
Landlord, to comprise real estate fixtures associated with the Premises: all
affixed apparatus and equipment required for the operation of the Improvements
to the extent of Tenant’s right, title and interests therein, such as pumps,
motors, machinery, treatment and storage facilities, heating and air
conditioning systems, gas, electrical and power systems, plumbing, pump, pipe
and lifting systems, fire prevention and alarm systems, built-in vacuum and
cleaning systems, affixed and installed refrigeration, ventilation,
non-severable walk-in coolers, non-severable walk-in freezers, non-severable
supply fans and exhaust fans, air ducts, built-in xxxx-top hoods and vents,
built-in sinks, built-in countertops, affixed tanks, conduits, switchboards,
and
communications apparatus, drapes, attached floor coverings, including carpeting,
storm doors and windows, and toilets and sinks, and other similar affixed
apparatus, equipment and facilities required for the day-to-day
28
(h) A
sale of
the Premises by Landlord, or a merger or consolidation by Landlord, shall be
deemed to be an assignment by Landlord of its rights under this Lease. Upon
any
such sale, merger or consolidation and assignment, Landlord shall provide such
documentation as reasonably necessary to evidence such sale, merger,
consolidation and assignment.
(i) Tenant
covenants and agrees that, during the Term of this Lease, Xxxxx'x Roadhouse,
Inc. shall not transfer any Non Sale-Leaseback Stores (as hereinafter defined)
without
Landlord’s prior written consent (which consent shall not be unreasonably
withheld, conditioned or delayed),
except
in
accordance with the following terms and conditions.
A. Notwithstanding
anything to the contrary stated in this Article 13, and provided no Event of
Default has occurred and is continuing, Xxxxx’x Roadhouse, Inc. shall have the
right to:
1. sell
or
transfer any Non Sale-Leaseback Stores to any direct or indirect subsidiary
of
Xxxxx’x Roadhouse, Inc. that is not a Sister Entity (as hereinafter
defined);
2. sell
or
transfer, in the aggregate, up to ten percent (10%) of the net book value of
the
Non Sale-Leaseback Stores to (a) the ultimate parent company or holding company
that owns the equity securities of Xxxxx’x Roadhouse, Inc. or (b) any Sister
Entity;
3. sell
or
transfer any Non Sale-Leaseback Stores to an unaffiliated third party in
connection with an arms'-length transaction; or
4. dividend
or transfer cash or securities held by Xxxxx’x Roadhouse, Inc. to the ultimate
parent company or holding company that owns the equity securities of such
Entity.
B. Tenant
covenants and agrees that Schedule 13.1(i) attached hereto is a true and correct
list of all of the current Affiliates of Xxxxx'x Roadhouse, Inc. as of the
date
hereof. Promptly upon receipt of Landlord’s request therefor, Tenant shall
deliver to Landlord an updated Schedule 13.1(i).
C. Except
as
expressly set forth in this Section or Article XIII, there shall be no
restriction on any sale or transfer of the assets of Xxxxx'x Roadhouse, Inc.
or
any Affiliate thereof.
D. This
Section and the restrictions on transfer described herein shall only apply
if
(a) the property subject to this Lease is held by the [INSERT
ORIGINAL
29
LANDLORD]
or an
Affiliate thereof (the “Original
Landlord”)
and
(b) the Original Landlord is the landlord under ten (10) or more Other Leases
(as hereinafter defined).
E. “Non-Sale-Leaseback
Stores”
shall
mean those premises specifically identified on Schedule 13.1(i) attached
hereto.
F. “Sister
Entity”
shall
mean any Person, directly or indirectly (through one or more subsidiaries),
under common control with Xxxxx’x Roadhouse, Inc., but in all events excluding
(a) any Person, directly or indirectly, controlling Xxxxx’x Roadhouse, Inc. or
(b) any Person, directly or indirectly, controlled by Xxxxx’x Roadhouse, Inc.
For the purposes of this definition, the term “control” (including the
correlative meanings of the terms “controlling”, “controlled by” and “under
common control with”), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
ARTICLE
XIV
LANDLORD’S
INTEREST NOT SUBJECT TO LIENS
14.1 Liens,
Generally. Tenant
shall not create or cause to be imposed, claimed or filed upon the Premises,
or
any portion thereof, or upon the interest of Landlord therein, any lien, charge
or encumbrance whatsoever. If, because of any act or omission of Tenant, any
such lien, charge or encumbrance shall be imposed, claimed or filed, Tenant
shall, at its sole cost and expense, cause the same to be fully paid and
satisfied or otherwise discharged of record (by bonding or otherwise) and Tenant
shall indemnify and save and hold Landlord harmless from and against any and
all
costs, liabilities, suits, penalties, claims and demands whatsoever, and from
and against any and all reasonable attorneys’ fees, at both trial and all
appellate levels, resulting or on account thereof and therefrom. In the event
that Tenant shall fail to comply with the foregoing provisions of this Section
14.1, Landlord shall have the option of paying, satisfying or otherwise
discharging (by bonding or otherwise) such lien, charge or encumbrance and
Tenant agrees to reimburse Landlord, upon demand and as Additional Rent, for
all
sums so paid and for all costs and expenses incurred by Landlord in connection
therewith, together with interest thereon as provided in this Lease, until
paid.
14.2 Mechanics’
Liens. Landlord’s
interest in the Premises shall not be subjected to liens of any nature by reason
of Tenant’s construction, alteration, renovation, repair, restoration,
replacement or reconstruction of any improvements on or in the Premises, or
by
reason of any other act or omission of Tenant (or of any Person claiming by,
through or under Tenant) including, without limitation, mechanics’ and
materialmen’s liens. All Persons dealing with Tenant are hereby placed on notice
that such Persons shall not look to Landlord or to Landlord’s credit or assets
(including Landlord’s interest in the Premises) for payment or satisfaction of
any obligations incurred in connection with the construction, alteration,
renovation, repair, restoration, replacement or reconstruction thereof by or
on
behalf of Tenant. Tenant has no power, right or authority to subject Landlord’s
interest in the Premises to any mechanic’s or materialmen’s lien or claim of
lien. If a lien, a claim of lien or an order for the payment of money shall
be
imposed against the Premises on account of work performed, or alleged to have
been performed, for or on behalf of Tenant, Tenant shall, within thirty (30)
days after written
30
14.3 Contest
of Liens. Tenant
may, at its option, contest the validity of any lien or claim of lien if Tenant
shall have first posted an appropriate and sufficient bond in favor of the
claimant or paid the appropriate sum into court, if permitted by law, and
thereby obtained the release of the Premises from such lien. If judgment is
obtained by the claimant under any lien, Tenant shall pay the same immediately
after such judgment shall have become final and the time for appeal therefrom
has expired without appeal having been taken. Tenant shall, at its own expense,
defend the interests of Tenant and Landlord in any and all such suits; provided,
however, that Landlord may, at its election, engage its own counsel and assert
its own defenses, in which event Tenant shall cooperate with Landlord and make
available to Landlord all information and data which Landlord deems necessary
or
desirable for such defense.
14.4 Notices
of Commencement of Construction. If
required by the laws of the State in which the Premises are located, prior
to
commencement by Tenant of any work on the Premises Tenant shall record or file
a
notice of the commencement of such work (a “Notice
of Commencement”)
in the
land records of the County in which the Premises are located, identifying Tenant
as the party for whom such work is being performed, stating such other matters
as may be required by law and requiring the service of copies of all notices,
liens or claims of lien upon Landlord. Any such Notice of Commencement shall
clearly reflect that the interest of Tenant in the Premises is that of a
leasehold estate and shall also clearly reflect that the interest of Landlord
as
the fee simple owner of the Premises shall not be subject to mechanics’ or
materialmen’s liens on account of the work which is the subject of such Notice
of Commencement. A copy of any such Notice of Commencement shall be furnished
to
and approved by Landlord and its attorneys prior to the recording or filing
thereof, as aforesaid.
ARTICLE
XV
SUBORDINATION,
ATTORNMENT AND NON-DISTURBANCE
15.1 Subordination. This
Lease, Tenant’s interest hereunder and Tenant’s leasehold interest in and to the
Premises are hereby agreed by Tenant to be and are hereby made junior, inferior,
subordinate and subject in right, title, interest, lien, encumbrance, priority
and all other respects to any Mortgage now or hereafter in force and effect
upon
or encumbering Landlord’s interest in the Premises, or any portion thereof, and
to all collateral assignments by Landlord to any third party or parties of
any
of Landlord’s rights under this Lease or the Rent, issues and profits hereof or
herefrom as security for any liability or indebtedness, direct, indirect or
contingent, of Landlord to such third party or parties, and to all future
modifications, extensions, renewals, consolidations and replacements of, and
all
amendments and supplements to, any such Mortgage or assignment, and upon
recording of any such Mortgage or assignment, the same shall be deemed to be
prior in dignity, lien and encumbrance to this Lease, Tenant’s interest
hereunder and Tenant’s leasehold interest in and to the Premises irrespective of
the dates of execution, delivery or recordation of any such Mortgage or
assignment; provided, however, that such subordination shall be upon the express
condition that the validity of this Lease shall be recognized by the holder
or
beneficiary of any such Mortgage or assignment, and that, notwithstanding any
default by Landlord with respect to such Mortgage or assignment, Tenant’s
possession and right of use under this Lease in and to the Premises shall not
be
disturbed by such holder or beneficiary thereunder unless and until there shall
be an Event of Default under this Lease and Tenant’s right to possession
hereunder shall have been terminated in accordance with the provisions of this
Lease. The foregoing subordination provisions of this Section 15.1 shall be
automatic and self-operative. However, if procedurally required by law, the
holder or beneficiary proposed holder or beneficiary of any such Mortgage or
assignment, together with Tenant and Landlord, shall execute and deliver a
subordination, non-disturbance and attornment agreement substantially in the
form attached as Exhibit
D
hereto,
or as otherwise mutually agreed to, subordinating Tenant’s interest hereunder or
Tenant’s leasehold interest in the Premises to any such Mortgage or assignment
in confirmation or furtherance of or in addition to the foregoing subordination
provisions of this Section 15.1, and provided such instrument recites the
foregoing non-disturbance rights in Tenant’s favor, Tenant shall execute and
deliver the same to the requesting party within ten (10) days following Tenant’s
receipt of such a written request.
15.2 Attornment. Tenant
shall and hereby agrees to attorn, and be bound under all of the terms,
provisions, covenants and conditions of this Lease, to any successor of the
interest of Landlord under this Lease for the balance of the Term remaining
at
the time of the succession of such interest to such successor. In particular,
in
the event that any proceedings are brought for the foreclosure of any Mortgage
or security interest encumbering or collateral assignment of Landlord’s interest
in the Premises, or any portion thereof, Tenant shall attorn to the purchaser
at
any such foreclosure sale and recognize such purchaser as Landlord under this
Lease, subject, however, to all of the terms and conditions of this Lease.
Tenant agrees that neither the purchaser at any such foreclosure sale nor the
foreclosing holder or beneficiary of such Mortgage or security interest shall
have any liability for any act or omission of Landlord, be subject to any
offsets or defenses which Tenant may have or claim against Landlord, or be
bound
by any advance Rent which may have been paid by Tenant to Landlord for more
than
the current period in which such Rent comes due.
15.3 Rights
of
Mortgagees,
Beneficiaries and Assignees. At
the
time of giving any notice of default to Landlord, Tenant shall mail or deliver
to any Lender a copy of any such notice. No notice of default or termination
of
this Lease by Tenant shall be effective until every Lender shall have been
furnished a copy of such notice by Tenant. In the event Landlord fails to cure
any default by it under this Lease, any Lender shall have, at its option, a
period of thirty (30) days within which to remedy such default of Landlord
or to
cause such default to be remedied. In the event that a Lender elects to cure
any
such default by Landlord, then Tenant shall accept such performance on the
part
of such Lender as though the same had been performed by Landlord, and for such
purpose Tenant hereby authorizes any Lender to enter upon the Premises to the
extent necessary to exercise any of Landlord’s rights, powers and duties under
this Lease. If any Lender promptly commences and diligently pursues to cure
a
default by Landlord which is reasonably capable of being cured by that Lender,
then Tenant will not terminate this Lease or cease to perform any of its
obligations under this Lease so long as the Lender is, with due diligence,
engaged in the curing of such default.
31
ARTICLE
XVI
END
OF
TERM;
RIGHT
OF FIRST REFUSAL
16.1 Surrender
of Premises. Tenant
shall, on or before the last day of the Term or upon the sooner termination
thereof, peaceably and quietly surrender and deliver to Landlord the Premises
(including, without limitation, all Improvements and all additions thereto
and
replacements thereof made from time to time over the Term), in good order,
condition and repair, reasonable wear and tear excepted, and free and clear
of
all liens and encumbrances other than those which exist on the Effective Date,
were otherwise specifically approved and acknowledged by Landlord in writing,
or
were created or granted by Landlord; provided, however, that, in the event
of
early termination following either a casualty or condemnation, the Premises
will
be returned as described by Sections 10 or 11 hereof, as applicable. Before
surrendering possession of the Premises, Tenant shall, at its sole cost and
expense, remove or cause to be removed from the Premises all of Tenant’s
Personal Property. Tenant shall not be required to remove the Improvements
upon
the Premises and Tenant’s failure to do so after the expiration of such period
shall be deemed to be an abandonment thereof, whereby title to any Improvements
made by Tenant subsequent to the execution of this Lease shall become vested
in
Landlord. Notwithstanding
the foregoing to the contrary, neither Tenant nor its subtenants shall have
the
right to remove any structural, mechanical, electrical or plumbing systems
(including heating, ventilating or air conditioning systems), except in
instances of obsolescence, casualty or replacement, and such systems as then
exist shall remain with the Improvements at the end of the Term and title to
such systems shall automatically pass to, vest in and belong to Landlord without
further action on the part of either party hereto.
16.2 Holding
Over. If
Tenant
or any other Person shall remain in possession of the Premises or any part
thereof following the expiration of the Term or earlier termination of this
Lease without an agreement in writing between Landlord and Tenant with respect
thereto, the Person remaining in possession shall be deemed to be a tenant
at
sufferance, and during any such holdover, the Base Rent payable under this
Lease
by such tenant at sufferance shall be one hundred fifty percent (150%) of the
rate or rates in effect immediately prior to the expiration of the Term or
earlier termination of this Lease. In no event, however, shall such holding
over
be deemed or construed to be or constitute a renewal or extension of this
Lease.
16.3 Right
of First Refusal.
(a) Except
in
connection with transactions consummated prior to the second (2nd) anniversary
of the Effective Date, Landlord shall not at any time during the Term sell
or
convey or agree to sell or convey the Premises without first having complied
with the requirements of this Section 16.3. Provided that no Event of Default
exists or has occurred and is continuing, if Landlord shall desire to sell
or
convey the Premises and Landlord shall obtain an offer from a third party that
is not an Affiliate of Landlord or Tenant, acceptable to Landlord, to purchase
the Premises (an “Offer”),
then
Landlord shall submit a written copy of the Offer to Tenant and shall give
Tenant fifteen (15) days within which to elect to purchase the Premises on
the
precise terms and conditions of the Offer (except that if the Offer shall be
in
whole or in part for consideration other than cash, Tenant shall have the right
to pay in cash the fair market value of such non-cash consideration). If Tenant
elects to so purchase the Premises, Tenant shall give to Landlord written notice
thereof (the “Acceptance
Notice”)
and
the closing shall be held within
32
(b) Notwithstanding
anything to the contrary herein, the provisions of this Section 16.3 shall
not
apply to (i) any sale or conveyance of the Premises in a foreclosure sale (or
similar proceeding) of the Mortgage or to any conveyance in lieu of foreclosure
of the Mortgage, or to any transfer subsequent to a foreclosure sale or deed
in
lieu thereof in connection with the requirements of Standard & Poor’s,
Xxxxx’x or any other Rating Agency (each as hereinafter defined) if the Loan is
included in a Secondary Market Transaction (as hereinafter defined), (ii) any
sale or conveyance of the Premises which occurs in connection with a Secondary
Market Transaction, (iii) any sale or conveyance of the Premises which occurs
during the existence of an Event of Default hereunder or a default beyond any
applicable notice and/or cure period under the Loan, (iv) any sale or conveyance
of the Premises to an Affiliate of Landlord or a joint venture partner of
Landlord, (v) any sale, conveyance, alienation, mortgage, encumbrance, pledge
or
transfer of the beneficial ownership interest, membership interest or other
equity interest in Landlord or the sale of all or substantially all of
Landlord's assets, or the change of the trustee, manager or other controlling
Person of Landlord, or (vi) any sale, conveyance or transfer in connection
with
any merger or business combination of Landlord or any transfer of a material
portion of Landlord's properties.
(c) If
Landlord shall obtain an Offer with respect to a sale or conveyance of all
or
any portion of the Premises and sells the Premises to Tenant or anyone else,
Tenant hereby acknowledges and consents as follows: (i) such sale shall be
in
accordance with and subject to the terms and provisions of the Note, the
Mortgage and the Other Loan Documents, whether such purchase contemplates the
purchase of the Premises subject to the lien of the Mortgage or a release of
the
lien of the Mortgage; and (ii) if the lien of the Mortgage is not released
in
connection with such sale of the Premises, and if Tenant acquires the Premises,
no merger of title
33
(d) If
Tenant
shall have agreed to purchase the Premises pursuant to an Offer under which
the
third party offeror was to acquire the Premises under and subject to the lien
of
the Mortgage, and if such purchase by Tenant of the Premises shall occur at
a
time when the Loan may be prepaid or defeased, as the case may be, Tenant may
purchase the Premises for cash free and clear of the Mortgage but only if the
cash portion of the Offer is increased by an amount equal to the principal
balance of the Loan plus interest secured by the Mortgage; all to the end and
effect that Landlord will net the same amount as Landlord would have netted
had
the Premises been sold under and subject to the lien of the Mortgage, pursuant
to the Offer.
ARTICLE
XVII
LIABILITY
OF LANDLORD; INDEMNIFICATION
17.1 Liability
of Landlord. Landlord
shall not be liable to Tenant, its employees, agents, invitees, licensees,
customers, clients, contractors or guests for any damage, injury, loss,
compensation or claim, including, without limitation, claims for the
interruption of or loss to Tenant’s business, based on, arising out of or
resulting from any cause whatsoever (except the negligence or intentional acts
of Landlord or any of its employees, agents, invitees, licensees, and
contractors), including, without limitation: (i) repairs to any portion of
the
Premises; (ii) interruption in Tenant’s use of the Premises; (iii) any accident
or damage resulting from the use or operation of any equipment within the
Premises, including, without limitation, heating, cooling, electrical or
plumbing equipment or apparatus; (iv) any fire, robbery, theft, mysterious
disappearance or other casualty; and (v) any leakage or seepage in or from
any
part or portion of the Premises, whether from water, rain or other precipitation
that may leak into, or flow from, any part of the Premises, or from drains,
pipes or plumbing fixtures in the Improvements.
17.2 Indemnification
of Landlord. Tenant
shall defend, indemnify and save and hold Landlord (together with its successor,
Affiliates, assigns, employees, agents, invitees, licensees, and contractors)
harmless from and against any and all liabilities, obligations, losses, damages,
injunctions, suits, actions, fines, penalties, claims, demands, costs and
expenses of every kind or nature (except as may arise through the gross
negligence, willful misconduct or material misrepresentation of Landlord or
any
of its successor, Affiliates, assigns, employees, agents, invitees, licensees,
and contractors), including reasonable attorneys’ fees and court costs, incurred
by Landlord, arising directly or indirectly from or out of: (i) any accident,
injury or damage which shall happen at, in or upon the Premises, however
occurring; (ii) any matter or thing growing out of the condition, occupation,
maintenance, alteration, repair, use or operation by any Person of the Premises,
or any part thereof, or the operation of the business contemplated by this
Lease
to be conducted thereon, thereat, therein, or therefrom; (iii) any failure
of
Tenant to comply with any laws, ordinances, requirements, orders, directions,
rules or regulations of any governmental authority, including, without
limitation, the Accessibility Laws; (iv) any discharge of Hazardous Materials,
sewage or waste materials from the Premises occurring prior to the Effective
Date or during the Term; or (v) any other act or omission of Tenant, its
employees, agents, invitees, licensees, contractors or customers. Tenant’s
indemnity obligations under this Article XVII and elsewhere in this Lease
arising prior to the expiration or earlier termination of this Lease shall
survive any such expiration or termination of this Lease.
34
17.3 Notice
of Claim or Suit. Tenant
shall promptly notify Landlord of any action, proceeding or suit involving
the
Premises which is instituted against Tenant or Landlord with a claim in excess
of One Hundred Thousand Dollars ($100,000.00). In the event Landlord is made
a
party to any action for damages or other relief against which Tenant has
indemnified Landlord, as aforesaid, Tenant shall defend Landlord, pay all costs
and shall provide effective counsel to Landlord in such litigation or, at
Landlord’s option, shall pay all reasonable attorneys’ fees and costs incurred
by Landlord in connection with its own defense or settlement of said
litigation.
17.4 Limitation
on Liability of Landlord. In
the
event Tenant is awarded a money judgment against Landlord, Tenant’s sole
recourse for satisfaction of such judgment shall be limited to execution against
Landlord’s interest in the Premises and the proceeds therefrom.
ARTICLE
XVIII
DEFAULT
18.1 Events
of Default. Each
of
the following events shall be an event of default hereunder by Tenant and shall
constitute a breach of this Lease (individually an “Event
of Default”):
(a) If
Tenant
shall fail to make (regardless of the pendency of any bankruptcy,
reorganization, receivership, insolvency or other proceedings, in law, in equity
or before any administrative tribunal which had or might have the effect of
preventing Tenant from complying with the provisions of this Lease): (x) any
payment of Base Rent when due and payable and such failure continues unremedied
for a period of five (5) days following receipt of written notice from Landlord
(provided, however, that Landlord shall not be required to send more than one
(1) written notice in any twelve (12) month period), or (y) any payment of
Additional Rent or any other sum herein required to be paid by Tenant and such
failure continues unremedied for a period of ten (10) days, following the
receipt of written notice from Landlord (provided, however, that an Event of
Default shall not exist hereunder to the extent that a payment of Rent was
timely received but was misapplied by Landlord or Lender, as
applicable).
(b) If
Tenant
shall violate or fail to comply with or perform any other term, provision,
covenant, agreement or condition to be performed or observed by Tenant under
this Lease, and such violation or failure shall continue for a period of thirty
(30) days after written notice thereof from Landlord; provided, however, that
if
such violation or failure is of such a nature that it cannot reasonably be
cured
within such period of thirty (30) days, such period shall be extended for such
longer time as is reasonably necessary (but not to exceed an additional ninety
(90) days subject to further extensions due to Force Majeure) so long as Tenant
has commenced to cure such violation or failure within such thirty (30) day
period and continues diligently to pursue such cure.
(c) If,
at
any time during the Term, Tenant shall file in any court, pursuant to any
statute of either the United States or of any State, a petition in bankruptcy
or
insolvency, or for reorganization or arrangement, or for the appointment of
a
receiver or trustee of all or any portion of Tenant’s property, including,
without limitation, its leasehold interest in the Premises,
35
(d) If,
at
any time during the Term, there shall be filed against Tenant in any courts
pursuant to any statute of the United States or of any State, a petition in
bankruptcy or insolvency, or for reorganization, or for the appointment of
a
receiver or trustee of all or a portion of Tenant’s property, including, without
limitation, its leasehold interest in the Premises, and any such proceeding
against Tenant shall not be dismissed within sixty (60) days following the
commencement thereof.
(e) If
Tenant’s leasehold interest in the Premises or property therein shall be seized
under any levy, execution, attachment or other process of court where the same
shall not be vacated or stayed on appeal or otherwise within sixty (60) days
thereafter, or if Tenant’s leasehold interest in the Premises is sold by
judicial sale and such sale is not vacated, set aside or stayed on appeal or
otherwise within sixty (60) days thereafter.
(f) If
Tenant
shall fail to provide Landlord evidence of insurance in accordance with this
Lease and such default shall continue for a period of ten (10) days after
written notice thereof is given by Landlord or Lender or Lender’s designee to
Tenant.
(g) Intentionally
Omitted.
(h) Intentionally
Omitted.
(i) Intentionally
Omitted.
(j) Intentionally
Omitted.
(k) intentionally
omitted.
(l) If
there
is an Other Lease Event of Default (as hereinafter defined) by the tenant under
any of the Other Leases, subject in all respects to the following:
(i)
As used
herein, the term "Other
Leases"
shall
mean any lease (other than this Lease) now or hereafter existing between
Landlord or any of Landlord's Affiliates and Tenant or any of Tenant's
Affiliates.
(ii) As
used
herein, “Other
Lease Event of Default”
shall
mean (i) a monetary "Event of Default", as such term is defined in the Other
Leases, (ii) a non-monetary "Event of Default", as such term is defined in
the
Other Leases, which creates an unreasonable danger or risk to the health or
safety of any occupant of the Premises, or (iii) a non-monetary "Event of
Default", as such term is defined in the Other Leases, which (A) is not
susceptible of a cure (x) within ninety (90) days, or (y) by the expenditure
of
$250,000.00, which amount shall increase by ten percent (10%) upon the
commencement of the fifth Lease Year and every five (5) years thereafter, and
(B) Tenant has not either (a) cured such default (as described in (A)) following
an additional thirty (30) days after written notice thereof from Landlord (the
date which is the expiration of such thirty (30) additional days, the
"Cure
Period Expiration"),
or
(b) paid to Landlord, on or before the Cure Period Expiration, an amount equal
to the sum of (1) the
36
(iii) Except
as
otherwise expressly stated herein, solely for purposes of this Section 18.1(l)
the fact that Tenant assigns its interest as a tenant under any Other Lease
shall not change the character of such lease as an "Other Lease" as defined
herein.
(iv) In
the
event that Landlord assigns its rights under this Lease (A) to an Affiliate
of
Landlord, (B) in connection with a merger or consolidation of Landlord or (C)
to
any Person acquiring all or substantially all of the assets of Landlord, this
Lease and the Other Leases shall continue to be cross-defaulted as provided
under this Section 18.1(l), notwithstanding any other provision of this Lease.
Upon such merger, consolidation or asset sale and assignment of this Lease,
upon
Tenant’s request, Landlord shall provide such documentation as reasonable
necessary to evidence said merger, consolidation or asset sale.
(v) In
the
event that Landlord assigns its rights under this Lease to a successor landlord
that is not an Affiliate of Landlord in connection with the sale of the Premises
unrelated to a merger or consolidation of Landlord or to a sale of all or
substantially all of the assets of Landlord, then upon such sale and assignment
to such non-Affiliate: (A) an Other Lease Event of Default under any Other
Leases shall no longer be an Event of Default of Tenant under this Lease; and
(B) an Event of Default of Tenant under this Lease shall no longer be an "Other
Lease Event of Default" (as such term is defined in the Other Leases) under
any
of the Other Leases.
(vi) In
the
event that Landlord or any of Landlord’s Affiliates assigns its rights under one
of the Other Leases to an assignee that is not an Affiliate of Landlord in
connection with the sale of that property unrelated to a merger or consolidation
of Landlord or such Affiliate of Landlord or to a sale of all or substantially
all of the assets of Landlord or such Affiliate of Landlord, then upon such
sale
and assignment to such non-Affiliate: (1) an "Other Lease Event of Default"
(as
such term is defined in the Other Leases) arising under such Other Lease shall
no longer be an Event of Default of Tenant under this Lease; and (2) an Event
of
Default of Tenant under this Lease shall no longer be an "Other Lease Event
of
Default" (as such term is defined in the Other Leases) under such Other
Lease.
(vii) In
the
event that Tenant assigns its rights under this Lease (A) to an Affiliate of
Tenant, (B) in connection with a merger or consolidation of Tenant, or (C)
to
any Person acquiring all or substantially all of the assets of Tenant, this
Lease and the Other Leases
37
(viii) In
the
event that Tenant assigns its rights under this Lease to a Person that is not
an
Affiliate of Tenant in a transaction unrelated to a merger or consolidation
of
Tenant or to a sale of all or substantially all of the assets of Tenant, then
(A) the term “Other
Lease Event of Default”
under
this Lease shall be strictly limited to an "Event of Default" (as such term
in
defined in the Other Leases) arising from the failure to pay a monetary
obligation, and (B) only an Event of Default under this Lease arising from
the
failure to pay a monetary obligation shall constitute an “Other Lease Event of
Default” (as such term is defined in the Other Leases) under any of the Other
Leases.
(ix) In
the
event that Tenant or any of Tenant’s Affiliates assigns its rights under one of
the Other Leases to a Person that is not an Affiliate of Tenant in a transaction
unrelated to a merger or consolidation of Tenant or such Affiliate of Tenant
or
to a sale of all or substantially all of the assets of Tenant or such Affiliate
of Tenant, then (A) the term "Other Lease Event of Default" under this Lease
shall be strictly limited to an "Event of Default" (as such term is defined
in
such Other Lease) arising from the failure to pay a monetary obligation, and
(B)
only an Event of Default under this Lease arising from the failure to pay a
monetary obligation shall constitute an “Other Lease Event of Default” (as such
term is defined in the Other Leases) under such Other Lease.
(x) This
Section 18.1(l) shall be self-operative without the need for Landlord or Tenant
to execute any documentation in connection with the assignment and sale of
the
Premises or any property subject to any Other Lease. As used in this Lease,
the
term “Affiliate”
shall
mean (I) any Person directly or indirectly through one or more subsidiaries
controlling, controlled by, or under common control with another Person; (II)
any Person owning or controlling ten percent (10%) or more of the outstanding
voting securities of another Person; (III) any officer, director, partner,
or
trustee of such Person; and (IV) if such other Person is an officer, director,
partner or trustee of a Person, the Person for which such Person acts in any
such capacity. “Person”
shall
mean any natural person or Entity. “Entity”
shall
mean any corporation, partnership (general, limited or other), limited liability
company, company, trust, business trust, cooperative or
association.
18.2 Remedies
on Default
If
any of
the Events of Default hereinabove specified shall occur, and during the
continuance of such Event of Default, Landlord shall have and may exercise
any
of the following rights and remedies:
(a) Landlord
may, pursuant to written notice thereof to Tenant, terminate this Lease and,
peaceably or pursuant to appropriate legal proceedings, re-enter, retake and
resume possession of the Premises for Landlord’s own account and, for Tenant’s
breach of and default under this Lease, recover immediately from Tenant any
and
all rents and other sums and damages due or in existence at the time of such
termination, including, without limitation, (i) all Rent and other sums,
charges, payments, costs and expenses agreed and/or required to be paid by
Tenant to Landlord hereunder through the date of termination, (ii) all
reasonable costs and expenses of Landlord in connection with the recovery of
possession of the Premises, including reasonable attorneys’ fees and court
costs, and (iii) all reasonable costs and expenses of Landlord
38
(b) Landlord
may, pursuant to any prior notice required by law, and without terminating
this
Lease, peaceably or pursuant to appropriate legal proceedings, re-enter, retake
and resume possession of the Premises for the account of Tenant, make such
alterations of and repairs to the Premises as may be reasonably necessary in
order to relet the same or any part or parts thereof and relet or attempt to
relet the Premises or any part or parts thereof for such term or terms (which
may be for a term or terms extending beyond the Term), at such rents and upon
such other terms and provisions as Landlord, in its sole, but reasonable,
discretion, may deem advisable. If Landlord relets or attempts to relet the
Premises, Landlord shall at its sole, but reasonable, discretion determine
the
terms and provisions of any new lease or sublease and whether or not a
particular proposed new tenant or sublessee is acceptable to Landlord. Upon
any
such reletting, all rents received by Landlord from such reletting shall be
applied, (a) first, to the payment of all costs and expenses of recovering
possession of the Premises, (b) second, to the payment of any costs and expenses
of such reletting, including brokerage fees, reasonable attorneys’ fees and the
cost of any alterations and repairs reasonably required for such reletting;
(c)
third, to the payment of any indebtedness, other than Rent, due hereunder from
Tenant to Landlord, (d) fourth, to the payment of all Rent and other sums due
and unpaid hereunder, and (e) fifth, the residue, if any, shall be held by
Landlord and applied in payment of future Rents as the same may become due
and
payable hereunder. If the rents received from such reletting during any period
shall be less than that required to be paid during that period by Tenant
hereunder, Tenant shall promptly pay any such deficiency to Landlord and failing
the prompt payment thereof by Tenant to Landlord, Landlord shall immediately
be
entitled to institute legal proceedings for the recovery and collection of
the
same. Such deficiency shall be calculated and paid at the time each payment
of
Rent shall otherwise become due under this Lease, or, at the option of Landlord,
at the end of the Term. Landlord shall, in addition, be immediately entitled
to
xxx for and otherwise recover from Tenant any other damages occasioned by or
resulting from an Event of Default other than an Event of Default arising from
the failure to pay Rent. No such re-entry, retaking or resumption of possession
of the Premises by Landlord for the account of Tenant shall be construed as
an
election on the part of Landlord to terminate this Lease unless a written notice
of such intention shall be given to Tenant or unless the termination of this
Lease be decreed by a court of competent jurisdiction. Notwithstanding any
such
re-entry and reletting or attempted reletting of the Premises or any part or
parts thereof for the account of Tenant without termination, Landlord may at
any
time thereafter, upon written notice to Tenant, elect to terminate this Lease
or
pursue any other remedy available to Landlord for Tenant’s previous breach of or
default under this Lease.
(c) Landlord
may, without re-entering, retaking or resuming possession of the Premises,
xxx
for all Rent and all other sums, charges, payments, costs and expenses due
from
Tenant to Landlord hereunder either: (i) as they become due under this Lease,
taking into account that Tenant’s right and option to pay the Rent hereunder on
a monthly basis in any particular Lease Year is conditioned upon the absence
of
an Event of Default on Tenant’s part in the performance of its obligations under
this Lease, or (ii) at Landlord’s option, accelerate the maturity and due date
of the whole or any part of the Rent for the entire then-remaining
39
(d) In
addition to the remedies hereinabove specified and enumerated, Landlord shall
have and may exercise the right to invoke any other remedies allowed at law
or
in equity as if the remedies of re-entry, unlawful detainer proceedings and
other remedies were not herein provided. Accordingly, the mention in this Lease
of any particular remedy shall not preclude Landlord from having or exercising
any other remedy at law or in equity. Nothing herein contained shall be
construed as precluding Landlord from having or exercising such lawful remedies
as may be and become necessary in order to preserve Landlord’s right or the
interest of Landlord in the Premises and in this Lease, even before the
expiration of any notice periods provided for in this Lease, if under the
particular circumstances then existing the allowance of such notice periods
will
prejudice or will endanger the rights and estate of Landlord in this Lease
and
in the Premises.
18.3 Landlord
May Cure Tenant Defaults. If
an
Event of Default shall have occurred, then during the continuance thereof,
Landlord may, after notice to Tenant and a reasonable time to perform after
such
notice (or without notice if, in Landlord’s reasonable opinion, an emergency
exists) perform the same for the account and at the expense of Tenant. If,
at
any time and by reason of such default, Landlord is compelled to pay, or elects
to pay, any sum of money or do any act which will require the payment of any
sum
of money, or is compelled to incur any expense in the enforcement of its rights
hereunder or otherwise, such sum or sums, together with interest thereon at
the
highest rate allowed under the laws of the State in which the Premises are
located, shall be deemed Additional Rent hereunder and shall be repaid to
Landlord by Tenant promptly when billed therefor, and Landlord shall have all
the same rights and remedies in respect thereof as Landlord has in respect
of
the rents herein reserved.
18.4 Landlord's
Lien Waiver. Landlord
hereby waives any lien it may have on Tenant's Personal Property, whether such
lien is created by statute or common law. Such waiver shall be self-operative.
Landlord agrees from time to time to enter into a Landlord agreement with
Tenant's in form and substance reasonably satisfactory to Landlord confirming
such waiver.
18.5 Rights
Cumulative. The
rights and remedies provided and available to Landlord in this Lease are
distinct, separate and cumulative remedies, and no one of them, whether or
not
exercised by Landlord, shall be deemed to be in exclusion of any
other.
ARTICLE XIX
NOTICES
Any
notice required or permitted to be given under this Lease shall be deemed given
if delivered personally to an officer or general partner of the party to be
notified or sent by (a) United States registered or certified mail, postage
prepaid, return receipt requested, or (b) national overnight courier service,
and addressed as follows:
If
to
Landlord: [c/o
Wachovia Development Corporation
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxxxx Xxxxxxxxx]
With
a
copy to: [Wolf,
Block, Xxxxxx and Xxxxx-Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.]
If
to
Tenant:
Xxxxx’x
Roadhouse, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Sr. VP of Finance and Accounting
With
a
copy to: Xxxxx’x
Roadhouse, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX
00000
Attention: VP of Legal
With
a
copy to: Bruckmann,
Xxxxxx, Xxxxxxxx & Co. Inc.
000
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxx X. Xxxxxx
or
such
other address as may be designated by either party by written notice to the
other. Except as otherwise provided in this Lease, every notice, demand, request
or other communication hereunder shall be deemed to have been given or served
upon actual receipt thereof. Accordingly, a notice shall not be effective until
actually received. Notwithstanding the foregoing, any notice mailed to the
last
designated address of any person or party to which a notice may be or is
required to be delivered pursuant to this Lease shall not be deemed ineffective
if actual delivery cannot be made due to a change of address of the person
or
party to which the notice is directed or the failure or refusal of such person
or party to accept delivery of the notice.
40
ARTICLE
XX
SUBSTITUTION
OF PREMISES
20.1 Definitions. The
following terms shall have the meanings set forth below:
“Code”
shall
mean the Internal Revenue Code of 1986, as amended from time to
time.
“Lender”
shall
mean an Entity identified as such in writing to Tenant which makes a Loan to
Landlord, secured by a Mortgage and evidenced by a Note or which is the holder
of the Mortgage and Note as a result of an assignment thereof.
“Loan”
shall
mean a loan made by a Lender to Landlord secured by a Mortgage and evidenced
by
a Note.
“LTV”
shall
mean the ratio of the amount of the Loan to the fair market value of the
Premises or the Substitute Premises, as applicable.
“Mortgage”
shall
mean a first priority mortgage, deed of trust or similar security instrument
hereafter executed covering the Premises from Landlord to Lender.
“Note”
or
“Notes”
shall
mean a promissory note or notes hereafter executed from Landlord to Lender,
which Note or Notes will be secured by a Mortgage and an assignment of leases
and rents.
“Premises
Fixed Charge Coverage Ratio”
shall
mean EBITDAR for the Premises divided by Base Rent.
“Rating
Agency”
or
“Rating
Agencies”
shall
mean, if any, one or more of Standard & Poor’s Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. (“Standard
& Poor’s”),
Xxxxx’x Investor Services, Inc. (“Moody’s”),
Xxxxx
Ratings Inc. (“Fitch”),
or
any other rating agency that has rated the Loan, the Mortgage or the REMIC
trust
or any other Entity in which the Loan and the Mortgage have been
placed.
“REMIC”
shall
mean a “real estate mortgage investment conduit” within the meaning of the
Code.
“REMIC
Provisions”
shall
mean the provisions of the federal income tax law relating to REMICs, which
appear at Sections 860A through 860G of the Code, and any related provisions
and
proposed, temporary and final Treasury regulations and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
“Secondary
Market Transaction”
shall
be (i) any sale of the Loan documents to one or more investors as a whole loan;
(ii) a participation of the Loan to one or more investors, (iii) any deposit
of
the Loan documents in an Entity that may sell certificates or other instruments
to investors evidencing an ownership interest in the assets of such Entity,
or
(iv) any other sale or transfer of the Loan or any interest therein to one
or
more investors.
41
“Substitution
Lease”
shall
mean a lease of the Substitute Premises on the same terms and conditions as
this
Lease with respect to the Withdrawn Premises, including, without limitation,
the
same rental terms with respect to the Withdrawn Premises, for the remaining
Term
(including all remaining Options hereunder).
“Substitute
Premises”
shall
mean the premises that are substituted under this Lease for the Withdrawn
Premises pursuant to this Article XX.
“Substitution”
shall
mean the substitution under this Lease of the Substitute Premises for the
Withdrawn Premises pursuant to this Article XX.
“Withdrawn
Premises”
shall
mean the Premises withdrawn from this Lease in accordance with the terms and
conditions of this Article XX.
20.2 Conditions
to Substitution. Tenant
may elect to effect a Substitution; provided, that the terms and conditions
of
this Article XX are fully satisfied.
(a) The
appraised fair market value and the useful life of the Substitute Premises
shall
be at least equal to the greater of (i) the appraised fair market value and
the
useful life of the Withdrawn Premises at the time of the Lease commencement,
(ii) the appraised fair market value and the useful life of the Withdrawn
Premises at the time of the Substitution, as evidenced by an MAI appraisal
prepared by an independent appraiser (acceptable to the Rating Agencies if
the
Withdrawn Premises are encumbered by a Mortgage and the Loan secured by such
Mortgage is part of a Secondary Market Transaction) and dated no more than
forty-five (45) days prior to the Substitution, or (iii) the purchase price
paid
by the then-current Landlord under this Lease in connection with its purchase
of
the Premises.
(b) Intentionally
omitted.
(c) No
Event
of Default by Tenant shall have occurred and be continuing under this Lease
either at the time of the request for the proposed Substitution or on the date
of the Substitution.
(d) Tenant
shall provide Landlord with written notice of the prospective Substitution
not
less than sixty (60) days before the date on which such Substitution is sought
to be effected.
(e) The
Substitute Premises must be a property as to which Landlord will hold fee
title.
(f) Landlord
and Tenant shall either (i) enter into a Substitution Lease and Tenant’s
obligation to pay rent under the Substitution Lease shall commence not later
than the date of the Substitution, or (ii) amend this Lease to include the
Substitute Premises and remove the Withdrawn Premises.
(g) Tenant
shall be required to accept the Substitute Premises in their “as is”
condition.
42
(h) intentionally
omitted.
(i) Lender
shall consent to the Substitution, and Tenant shall satisfy the requirements
of
Lender, including, without limitation, with respect to an opinion or opinions
of
counsel from a nationally recognized law firm (acceptable to the Rating Agencies
and in form and substance satisfactory to the Rating Agencies if the Withdrawn
Premises are encumbered by a Mortgage and the Loan secured by such Mortgage
is
part of a Secondary Market Transaction) (1) to the effect that (a) the
Substitution does not violate any, and is in compliance with all, REMIC
Provisions, will not endanger the status of the REMIC trust as a REMIC, or
result in the imposition of a tax upon the REMIC trust (including, without
limitation, the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code), (b) the Substitution will not result in a gain recognition event
to any Lender, and (c) the Substitution does not constitute a fraudulent
conveyance under applicable bankruptcy and insolvency laws, and (2) with respect
to such other matters as Lender may require.
(j) Tenant
shall reimburse Landlord for the actual out-pocket (include reasonable
attorney's fees) incurred by Landlord in connection with obtaining an opinion
letter from a nationally recognized law firm, in form and substance satisfactory
to Landlord, to the effect that the proposed Substitution (a) satisfies the
requirements for a “like-kind exchange” under Section 1031 of the Code, and (b)
does not cause Landlord to violate its holding requirements with respect to
ownership under Section 1031 of the Code.
(k) Tenant
shall cause to be delivered to Landlord and Lender an opinion letter from a
nationally recognized law firm, in form and content satisfactory to Landlord
and
Lender, relating to the (1) due authorization, execution and delivery of the
deed referenced in Section 20.2(v)(ii) hereof and the Substitute Lease or Lease
amendment, as applicable, referenced in Section 20.2(f) hereof, and (2) the
enforceability of the Substitute Lease or Lease amendment, as applicable,
referenced in Section 20.2(f) hereof.
(l) Tenant
shall be responsible for, and shall indemnify Landlord and/or Lender against,
any adverse tax consequence to Landlord and/or Lender with respect to such
Substitution.
(m)
The
Premises Fixed Charge Coverage Ratio for the Substitute Premises shall be
greater than 1.05:1; provided, however, that such requirement shall not be
applicable to any proposed Substitute Premises that has been open for business
for less than twelve (12) months.
(n) Intentionally
Omitted.
(o) Intentionally
Omitted.
(p) Intentionally
Omitted.
(q) If
the
Loan is part of a Secondary Market Transaction, Lender shall have received
evidence in writing from the Rating Agencies to the effect that the
proposed
43
(r) The
Person transferring the Substitute Premises to Landlord shall be solvent, and
the Substitute Premises shall be transferred to Landlord in an arm’s length
transaction.
(s) Landlord’s
right, title and interest in the Withdrawn Premises shall be transferred to
another Person other than an Affiliate of Landlord.
(t) Tenant
shall have (1) paid all reasonable costs and expenses of the Rating Agencies
incurred in connection with the Substitution if the Withdrawn Premises are
encumbered by a Mortgage and the Loan secured by such Mortgage is part of a
Secondary Market Transaction, and (2) paid or reimbursed Landlord and Lender
for, concurrently with the effecting of such Substitution, all reasonable
out-of-pocket costs and expenses including, without limitation, reasonable
attorneys’ fees, incurred by Landlord and Lender in connection with the
Substitution, and Tenant shall have paid all recording charges, filing fees,
taxes and other expenses (including, without limitation, mortgage, intangible
and transfer taxes) payable in connection with the Substitution.
(u) If
applicable, the insurers under any condemnation
insurance policy or other special lease enhancement insurance and the residual
value insurance policy shall have provided their written consent to the
Substitution of the Substitute Premises, and their written acknowledgment that
such insurance policies shall remain in full force and effect with respect
to
the Substitute Premises.
(v) Tenant
shall cause to be delivered to Landlord and Lender, without any cost or expense
to either such party:
(i) an
ALTA
title insurance policy (a lender’s policy and an owner’s policy), with any
endorsements Landlord and/or Lender may require, insuring (a) Lender and its
successors and assigns, in an amount equal to the Loan amount for the Withdrawn
Premises, which policy shall provide that the Mortgage constitutes a first
lien
or charge upon the Substitute Premises subject only to such items that are
approved in writing by Lender, and (b) Landlord, in the amount equal to the
appraised value of the Substitute Premises, insuring Landlord’s fee interest in
the Substitute Premises subject only to such items that are comparable to those
permitted with respect to the Withdrawn Premises and other items as shall have
been approved in writing by Landlord;
(ii) a
special
warranty deed subject to the Permitted Exceptions (as defined in Section
16.3(a)) conveying fee title to the Substitute Premises executed and delivered
in favor of Landlord and in substance (with respect to warranties) substantially
similar to the deed delivered to Landlord with respect to the Withdrawn
Premises;
(iii) a
“Phase
I” environmental assessment report and, if applicable, a Phase II environmental
assessment report, from a nationally recognized environmental consultant
(approved by the Rating Agencies if the Withdrawn Premises are encumbered by
a
Mortgage and the Loan secured by such Mortgage is part of a Secondary Market
Transaction),
44
(iv) a
copy of
an as-built survey of the Substitute Premises certified to Lender, Landlord
and
the issuer of the title policy by a registered land surveyor licensed in the
state in which the Substitute Premises are located (and acceptable to the Rating
Agencies if the Withdrawn Premises are encumbered by a Mortgage and the Loan
secured by such Mortgage is part of a Secondary Market Transaction), dated
a
date not earlier than thirty (30) days prior to the date of Substitution, in
the
same form and having the same content as the certification of the survey for
the
Withdrawn Premises, prepared in accordance with the then-current Minimum
Standard Detail Requirements for ALTA/ACSM Land Title Surveys. Such survey
shall
reflect the same legal description (metes and bounds) as the one contained
in
the title policy, and shall contain a certification that the Substitute Premises
are not located in a flood zone;
(v) a
zoning
opinion or letter from the local zoning authority confirming that the Substitute
Premises are a legal conforming, or legal nonconforming, use;
(vi) a
permanent, unconditional certificate of occupancy for the Substitute
Premises;
(vii) valid
certificates of insurance indicating that the requirements for the policies
of
insurance required under this Lease and the Loan documents have been satisfied
with respect to the Substitute Premises, together with evidence of payment
of
all premiums for the existing policy period;
(viii) an
engineering report (in a form recognized and approved by the Rating Agencies
if
the Withdrawn Premises are encumbered by a Mortgage and the Loan secured by
such
Mortgage is part of a Secondary Market Transaction) from a nationally recognized
engineering consultant (approved by the Rating Agencies if the Withdrawn
Premises are encumbered by a Mortgage and the Loan secured by such Mortgage
is
part of a Secondary Market Transaction), dated not more than ninety (90) days
prior to the date of the proposed Substitution, stating that the Substitute
Premises and their use comply with all applicable requirements of law (including
building and subdivision laws), and that the Substitute Premises are in good
condition and repair and are free of damage or waste;
(ix) an
estoppel certificate certified to Landlord and Lender stating (1) that the
Substitution Lease (or this Lease as amended pursuant to Section 20.1(f) hereof)
is in full force and effect and is a valid and binding obligation of Tenant,
(2)
that there are no defaults under the Substitution Lease (or this Lease as
amended pursuant to Section 20.1(f) hereof), (3) that Tenant has no defense
or
offset to the payment of rent under the Substitution Lease (or this Lease as
amended pursuant to Section 20.1(f) hereof), (4) the dates of lease
commencement, rent
45
(x) if
the
Substitute Premises are to be encumbered by a Mortgage (or a comparable
instrument under the Substitute Lease), a subordination, non-disturbance and
attornment agreement with respect to the Substitution Lease (or this Lease
as
amended pursuant to Section 20.1(f) hereof) substantially in the form delivered
in connection with the leasing of the Withdrawn Premises;
(xi) a
release
of Lender and Landlord, and their respective officers, directors, employees
and
agents, from all claims and liability relating to the Withdrawn Premises through
and including the date of the effecting of the Substitution; and
(xii) such
other and further approvals, opinions, documents and information in connection
with the Substitution as Lender (or the Rating Agencies if the Withdrawn
Premises are subject to a Mortgage and Loan secured by such Mortgage is part
of
a Secondary Market Transaction) may reasonably request.
(w) Landlord
and Lender, and their respective agents, shall be provided with full access
to
the Substitute Premises in order conduct their inspection of the Substitute
Premises and perform their due diligence.
(x) All
of
Tenant’s representations and warranties under this Lease shall be true and
correct both at the time of the request for the proposed Substitution and as
of
the date of the Substitution.
(y) The
Substitute Premises shall be satisfactory to Landlord and Lender in their sole
discretion.
(z) In
the
event of a Substitution, as contemplated in this Article 20, Tenant shall cause
"Exhibit B" attached to each lease in the then-current Cease Operations Lease
Pool to be updated to reflect such Substitution or termination, as
applicable.
ARTICLE
XXI
FINANCIAL
REPORTING/FINANCIAL COVENANT
21.1 Financial
Reporting. Tenant
shall keep and maintain at all times complete and accurate books and records
adequate to reflect clearly and correctly Tenant’s annual sales from the
Premises. Tenant shall submit to Landlord and Lender, either in print or in
electronic form, the following financial statements, all of which must be
prepared in accordance with generally accepted accounting principles
consistently applied (“GAAP”):
(i)
quarterly financial statements for Tenant, within forty-five (45) days after
the
end of each fiscal quarter during the Term, and (ii) annual financial statements
for Tenant, audited by an independent certified public accountant, together
with
the annual sales data from the Premises for the prior fiscal year, within ninety
(90) days after the end of each fiscal year during the Term. In the event that
Tenant shall become a
46
ARTICLE
XXII
ECONOMIC
INFEASIBILITY
22.1 Economic
Infeasibility. If
at any
time (i) after the third (3rd) anniversary of the date that the Premises
commenced operations, and (ii) prior to the expiration of the Initial Term,
Tenant determines, in its commercially reasonable discretion, that it is no
longer economically feasible to conduct business at the Premises in connection
with Tenant's overall corporate strategy, then Tenant may, (A) offer in writing
(which offer may be rejected by Landlord pursuant to Section 22.1(a) hereof)
to
cause a Substitution pursuant to Article XX hereof (an “Economic
Substitution Offer”),
or
(B) notify Landlord in writing of its election to terminate this Lease pursuant
to Section 22.1(c) hereof (the “Tenant’s
Economic Termination Notice”).
(a) If
Landlord and Lender shall not elect to accept Tenant’s Economic Substitution
Offer, Landlord shall give notice thereof to Tenant within one hundred twenty
(120) days after receipt of the Economic Substitution Offer. In such event,
this
Lease, and Tenant’s obligations hereunder, shall continue.
(b) If
Landlord and Lender accept the Economic Substitution Offer, the Substitution
shall be made (i) pursuant to Article XX hereof, and (ii) within thirty
(30) days
after Tenant’s Economic Substitution Offer. This Lease shall remain in full
force and effect with respect to the Premises unless and until the Substitution
is completed.
(c) Any
Tenant’s Economic Termination Notice shall (i) specify the Base Rent payment
date on which this Lease shall terminate (the “Economic
Termination Date”),
and
(ii) acknowledge that such termination is conditioned upon Tenant’s payment to
Landlord of the Economic Termination Payment (as hereinafter defined) on or
before the Economic Termination Date. In such event, on the Economic Termination
Date (A) Landlord shall be in receipt of the Economic Termination Payment,
and
(B) this Lease and the Term hereof shall terminate. The “Economic
Termination Payment”
shall
be an amount equal to the sum of (i) the Base Rent and Additional Rent due
under
the Lease as of the Economic Termination Date, (ii) any other amounts due under
the Lease as of the Economic Termination Date, (iii) the aggregate remaining
Base Rent and Additional Rent payable by Tenant hereunder for the Initial Term
(or any Option Period for which the Term has been extended), (iv) any
out-of-pocket costs, charges or penalties (including prepayment or defeasance
costs and penalties), if any, incurred by Landlord and Lender as a result of
the
prepayment or defeasance of the Note, and (v) any other amounts that
47
(d) In
the
event of a Substitution, or a termination of this Lease, as contemplated in
this
Article 22, Tenant shall cause "Exhibit B" attached to each lease in the
then-current Cease Operations Lease Pool to be updated to reflect such
Substitution or termination, as applicable.
ARTICLE
XXIII
MISCELLANEOUS
23.1 “Net”
Lease. Landlord
and Tenant acknowledge and agree that both parties intend that this Lease shall
be and constitute what is generally referred to in the real estate industry
as a
“triple net” or “absolute net” lease, such that Tenant shall be obligated
hereunder to pay all costs and expenses incurred with respect to, and associated
with, the Premises and the business operated thereon and therein, including,
without limitation, all taxes and assessments, utility charges, insurance costs,
maintenance costs and repair, replacement and restoration expenses (all as
more
particularly herein provided) together with any and all other assessments,
charges, costs and expenses of any kind or nature whatsoever related to, or
associated with, the Premises and the business operated thereon and therein;
provided, however, that Landlord shall nonetheless be obligated to pay any
debt
service on any Mortgage encumbering Landlord’s fee simple interest in the
Premises, and Landlord’s income taxes with respect to Rent received by Landlord
hereunder and any taxes for which Tenant is not responsible as described in
Section 5.1(f) hereof. Except as expressly hereinabove provided, Landlord shall
bear no cost or expense of any type or nature with respect to, or associated
with, the Premises. Landlord and Tenant agree that this Lease is intended to
be
a true operating lease and does not represent a financing arrangement. Each
party shall use good faith efforts to reflect the transactions represented
by
this Lease in all applicable books, records and reports (including, without
limitation, income tax filings) in a manner consistent with true operating
lease
treatment and will consider all necessary modifications in good faith to obtain
such results.
23.2 Estoppel
Certificates.
(a) Tenant
shall from time to time, within fifteen (15) days after request by Landlord
and
without charge, give a Tenant Estoppel Certificate in the form attached hereto
as Exhibit
E-1
and
containing such other matters as may be reasonably requested by Landlord to
any
Person specified by Landlord.
(b) Landlord
shall from time to time, within fifteen (15) days after request by Tenant and
without charge, give a Landlord Estoppel Certificate in the form attached hereto
as Exhibit
E-2
and
containing such other matters as may be reasonably requested by Tenant to any
Person specified by Tenant.
23.3 Amended
and Restated Lease. Tenant
covenants and agrees, within five (5) business days after the written request
therefor from Landlord, to enter into an amended and restated lease with any
successor, transferee or assignee of Landlord in the form attached
hereto
48
23.4 No
Partnership or Joint Venture. Landlord
shall not, by virtue of this Lease, in any way or for any purpose, be deemed
to
be a partner of Tenant in the conduct of Tenant’s business upon, within or from
the Premises or otherwise, or a joint venturer or a member of a joint enterprise
with Tenant.
23.5 Entire
Agreement. This
Lease contains the entire agreement between the parties and, except as otherwise
provided herein, can only be changed, modified, amended or terminated by an
instrument in writing executed by the parties. It is mutually acknowledged
and
agreed by Landlord and Tenant that there are no verbal agreements,
representations, warranties or other understandings affecting the same; and
that
Tenant hereby waives, as a material part of the consideration hereof, all claims
against Landlord for rescission, damages or any other form of relief by reason
of any alleged covenant, warranty, representation, agreement or understanding
not contained in this Lease. This Lease shall not be changed, amended or
modified except by a written instrument executed by Landlord and
Tenant.
23.6 Waiver. No
release, discharge or waiver of any provision hereof shall be enforceable
against or binding upon Landlord or Tenant unless in writing and executed by
Landlord or Tenant, as the case may be. Neither the failure of Landlord or
Tenant to insist upon a strict performance of any of the terms, provisions,
covenants, agreements and conditions hereof, nor the acceptance of any Rent
by
Landlord with knowledge of a breach of this Lease by Tenant in the performance
of its obligations hereunder, shall be deemed a waiver of any rights or remedies
that Landlord or Tenant may have or a waiver of any subsequent breach or default
in any of such terms, provisions, covenants, agreements and
conditions.
23.7 Time. Time
is
of the essence in every particular of this Lease, including, without limitation,
obligations for the payment of money.
23.8 Costs
and
Attorneys’
Fees. If
either
party shall bring an action to recover any sum due hereunder, or for any breach
hereunder, and shall obtain a judgment or decree in its favor, the court may
award to such prevailing party its reasonable costs and reasonable attorneys’
fees, specifically including reasonable attorneys’ fees incurred in connection
with any appeals (whether or not taxable as such by law). Landlord shall also
be
entitled to recover its reasonable attorneys’ fees and costs incurred in any
bankruptcy action filed by or against Tenant, including, without limitation,
those incurred in seeking relief from the automatic stay, in dealing with the
assumption or rejection of this Lease, in any adversary proceeding, and in
the
preparation and filing of any proof of claim.
23.9 Captions
and Headings;
Usage. The
captions and headings in this Lease have been inserted herein only as a matter
of convenience and for reference and in no way define, limit or describe the
scope or intent of, or otherwise affect, the provisions of this Lease.
As
used
herein, the singular number shall include the plural, the plural the singular,
and the use of any gender shall be applicable to all genders.
49
23.10 Severability. If
any
provision of this Lease shall be deemed to be invalid, it shall be considered
deleted therefrom and shall not invalidate the remaining provisions of this
Lease.
23.11 Successors
and Assigns. The
agreements, terms, provisions, covenants and conditions contained in this Lease
shall be binding upon and inure to the benefit of Landlord and Tenant and,
to
the extent permitted herein, their respective successors and
assigns.
23.12 Applicable
Law. This
Lease shall be governed by, and construed in accordance with, the laws of the
State in which the Land is located.
23.13 Recordation
of Memorandum of Lease. At
either
party’s option, a short form memorandum of this Lease, in the form attached
hereto as Exhibit
G
shall be
recorded or filed among the appropriate land records of the County in which
the
Land is located, and Tenant shall pay the recording costs and any fees or taxes
associated therewith. In the event of a discrepancy between the provisions
of
this Lease and such short form memorandum thereof, the provisions of this Lease
shall prevail.
23.14 Waiver
of Jury Trial. TENANT
AND LANDLORD HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
EITHER OF THEM OR THEIR HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS
MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS LEASE OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED
IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT TO LANDLORD’S ACCEPTING THIS LEASE.
23.15 Counterparts. This
Lease
may be executed in counterparts by the parties hereto and each shall be
considered an original, but all such counterparts shall be construed together
and constitute one Lease between the parties hereto.
23.16 Intentionally
Omitted.
23.17 Tenant
Merger. Following
any
(i) merger or consolidation by Tenant with another Entity, (ii) sale of
substantially all or substantially all of the assets or the equity ownership
interests of Tenant to another Person, (iii) initial public offering of the
securities of Tenant, or (iv) change in control of Tenant while its equity
securities are listed on a public securities exchange or over-the-counter
market, such surviving successor Person shall assume, observe and perform all
of
the terms and provisions of this Lease on the part of Tenant to be observed
and
performed from and after the date of such transaction.
23.18 Tax
Treatment Disclosure. Notwithstanding
anything contained herein to the contrary, each party to this Lease (and each
of
its employees, representatives and other agents) may disclose to any and all
Persons, without limitation of any kind, the tax treatment and tax structure
of
this Lease and all materials of any kind (including opinions and other tax
analyses) that are provided to such party or parties relating to the tax
treatment or tax structure of this Lease, except that such disclosure is not
permitted to the extent necessary for each party to comply with the federal
or
state securities laws. This authorization is not intended to permit
50
23.19 Specially
Designated Nationals; Blocked Persons; Embargoed Persons.
(a) Tenant
represents and warrants to Landlord that (A) Tenant and each Person owning
an
interest in Tenant is (i) not currently identified on the Specially Designated
Nationals and Blocked Persons List maintained by the Office of Foreign Assets
Control of the Department of the Treasury (“OFAC”)
and/or
on any other similar list maintained by OFAC pursuant to any authorizing
statute, executive order or regulation (collectively, the “List”),
and
(ii) not currently a Person with whom a citizen of the United States is
prohibited to engage in transactions by any trade embargo, economic sanction,
or
other prohibition of United States law, regulation, or Executive Order of the
President of the United States, (B) none of the funds or other assets of Tenant
constitute property of, or are beneficially owned, directly or indirectly,
by,
any Embargoed Person, (C) no Embargoed Person has any interest of any nature
whatsoever in Tenant (whether directly or indirectly), (D) none of the funds
of
Tenant have been derived from any unlawful activity with the result that the
investment in Tenant is prohibited by law or that this Lease is in violation
of
law, and (E) Tenant has implemented procedures, and will consistently apply
those procedures, to ensure the foregoing representations and warranties remain
true and correct at all times. The term “Embargoed
Person”
means
any Person or government subject to trade restrictions under U.S. law, including
without limitation, the International Emergency Economic Powers Act, 50 U.S.C.
§1701 et seq., the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and
any
Executive Orders or regulations promulgated thereunder with the result that
the
investment in Tenant is prohibited by law or Tenant is in violation of
law.
(b) Tenant
covenants and agrees (A) to comply with all requirements of law relating to
money laundering, anti-terrorism, trade embargos and economic sanctions, now
or
hereafter in effect, (B) to immediately notify Landlord in writing if any of
the
representations, warranties or covenants set forth in this Section 23.19(b)
or
Section 23.19(c) hereof are no longer true or have been breached or if Tenant
has a reasonable basis to believe that they may no longer be true or have been
breached, (C) not to use funds from any “Prohibited
Person”
(as
such term is defined in the September 24, 2001 Executive Order Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism) to make any payment due to Landlord under this Lease and
(D)
at the request of Landlord, to provide such information as may be requested
by
Landlord to determine Tenant’s compliance with the terms hereof.
(c) Tenant
hereby acknowledges and agrees that Tenant’s inclusion on the List at any time
during the Term shall be an Event of Default. Notwithstanding anything herein
to
the contrary, Tenant shall not permit the Premises or any portion thereof to
be
used or occupied by any Person on the List or by any Embargoed Person (on a
permanent, temporary or
51
23.20 Notice
of Material Debt Default.
Tenant
hereby agrees to provide Landlord with prompt written notice in the event (i)
Tenant shall be in default in the payment of any sums due under any debt of
Tenant having an original principal amount of Five Million Dollars
($5,000,000.00) or greater (such debt, "Material
Debt"),
or
(ii) any Material Debt is accelerated by the holder thereof due to a default
thereunder by Tenant.
[ADD
LOCAL LAW PROVISIONS PER LOCAL COUNSEL].
52
IN
WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly executed
on or as of the day and year first above written.
SIGNATURES
EXHIBIT
A
LEGAL
DESCRIPTION OF THE LAND
EXHIBIT
B
CEASE
OPERATIONS LEASE POOL
EXHIBIT
C
LEASEHOLD
MORTGAGE SUBORDINATION, NON-DISTURBANCE AGREEMENT
EXHIBIT
D
FORM
OF
SUBORDINATION, NON-DISTURBANCE
AND
ATTORNMENT AGREEMENT
RECORDING
REQUESTED BY
AND
WHEN
RECORDED MAIL TO:
__________________________
__________________________
|
(Space
Above For Recorder’s Use)
|
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This
Subordination, Non-Disturbance and Attornment Agreement (the “Agreement”)
is
dated as of the ___ day of _____________, 200___, among ______________________,
a ____________________ (together with its successors and/or assigns, the
“Lender”),
_______________________________________, a ____________________ (the
“Tenant”)
and
________________, a _____________, (the “Landlord”).
RECITALS
A. Tenant
is
the tenant under a certain lease dated as of [____,
20__]
with
Landlord [as
amended by that certain ________________________]
(collectively, the “Lease”)
of the
premises described in the Lease and known as ____________, as more particularly
described in Exhibit “A” attached hereto and made a part hereof the
“Property”).
B. This
Agreement is being entered into in connection with a mortgage loan (the
“Loan”)
being
made by Lender to Landlord, to be secured by, among other things: (a) a first
mortgage, deed of trust or deed to secure debt on and of the Property (the
“Mortgage”)
to be
recorded with the registry or clerk of the county in which the Property is
located; and (b) a first assignment of leases and rents on the Property (the
“Assignment
of Leases and Rents”)
to be
recorded. The Mortgage and the Assignment of Leases and Rents are hereinafter
collectively referred to as the “Security
Documents”.
C. Tenant
acknowledges that Lender will rely on this Agreement in making the Loan to
Landlord.
AGREEMENT:
For
mutual consideration, including the mutual covenants and agreements set forth
below, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Tenant
agrees that the Lease and the terms thereof (including Tenant's applicable
right
of first refusal and right of substitution) is and shall be subject and
subordinate to the Security Documents and to all present or future advances
under the obligations secured thereby and all renewals, amendments,
modifications, consolidations, replacements and extensions of the secured
obligations and the Security Documents, to the full extent of all amounts
secured by the Security Documents from time to time. Said subordination is
to
have the same force and effect as if the Security Documents and such renewals,
modifications, consolidations, replacements and extensions thereof had been
executed, acknowledged, delivered and recorded prior to the Lease, any
amendments or modifications thereof and any notice thereof.
2. Lender
agrees that, if the Lender exercises any of its rights under the Security
Documents, including an entry by Lender pursuant to the Mortgage or a
foreclosure of the Mortgage, Lender shall not disturb Tenant’s right of quiet
possession of the Premises under the terms of the Lease so long as no Event
of
Default (as defined in the Lease) shall have occurred and be continuing and
Tenant’s right to possession of the Premises shall not have been terminated in
accordance with the provisions of the Lease. So long as no Event of Default
(as
defined in the Lease) shall have occurred and be continuing and Tenant’s right
to possession of the Premises shall not have been terminated in accordance
with
the provisions of the Lease. Tenant shall not be named as a party in any action
by Lender to enforce such rights unless such joinder shall be required by law;
provided that such joinder shall not result in the termination of the Lease
or
disturb Tenant’s right of quiet possession and use of the Property, and any sale
of the Property or other enforcement of such rights shall be made subject to
all
rights of Tenant under the Lease.
3. Tenant
agrees that, in the event of a foreclosure of the Mortgage by Lender or the
acceptance of a deed in lieu of foreclosure by Lender or any other succession
of
Lender to ownership, Tenant will attorn to and recognize Lender as its landlord
under the Lease for the remainder of the term of the Lease (including all
extension periods which have been or are hereafter exercised) upon the same
terms and conditions as are set forth in the Lease, and Tenant hereby agrees
to
pay and perform all of the obligations of Tenant pursuant to the
Lease.
4. Tenant
agrees that, in the event Lender succeeds to the interest of Landlord under
the
Lease, Lender shall not be:
(a) liable
for any act or omission of any prior Landlord (including, without limitation,
the then defaulting Landlord) which are not of a continuing nature,
or
(b) subject
to any defense or offsets which Tenant may have against any prior Landlord
(including, without limitation, the then defaulting Landlord), or
(c) bound
by
any payment of rent or additional rent which Tenant might have paid for more
than one month in advance of the due date under the Lease to any prior Landlord
except to the extent received by Lender pursuant to the exercise of its remedies
under its loan documents after default by Landlord (including, without
limitation, the then defaulting Landlord), or
(d) bound
by
any obligation to make any payment to Tenant which was required to be made
prior
to the time Lender succeeded to any prior Landlord’s interest, or
(e) accountable
for any monies deposited with any prior Landlord (including security deposits),
except to the extent such monies are actually received by Lender,
or
(f) bound
by
any surrender, termination, amendment or modification of the Lease made without
the consent of Lender (except a surrender, termination, amendment or
modification specifically provided for in the Lease, such as the exercise of
a
renewal option, which is permitted without the Lender’s consent).
5. Tenant
hereby agrees to give to Lender copies of all notices of Landlord default(s)
under the Lease in the same manner as, and whenever, Tenant shall give any
such
notice of default to Landlord, and no such notice of default shall be deemed
given to Landlord unless and until a copy of such notice shall have been so
delivered to Lender. Lender shall have the right to remedy any Landlord default
under the Lease, or to cause any default of Landlord under the Lease to be
remedied, and for such purpose Tenant hereby grants Lender such additional
period of time, not to exceed thirty (30) days, as may be reasonable to enable
Lender to remedy, or cause to be remedied, any such default in addition to
the
period given to Landlord for remedying, or causing to be remedied, any such
default. Tenant shall accept performance by Lender of any term, covenant,
condition or agreement to be performed by Landlord under the Lease with the
same
force and effect as though performed by Landlord. No Landlord default under
the
Lease shall exist or shall be deemed to exist (i) as long as Lender, in good
faith, shall have commenced to cure such default within the above referenced
time period and shall be prosecuting the same to completion with reasonable
diligence, subject to Force Majeure, or (ii) if possession of the Premises
is
required in order to cure such default, or if such default is not susceptible
of
being cured by Lender, as long as Lender, in good faith, shall have notified
Tenant that Lender intends to institute proceedings under the Security
Documents, and, thereafter, as long as such proceedings shall have been
instituted and shall be prosecuted with reasonable diligence. In the event
of
the termination of the Lease by reason of any default thereunder by Landlord,
upon Lender’s written request, given within thirty (30) days after any such
termination, and at Lender’s cost and expense, Tenant, within fifteen (15) days
after receipt of such request, shall execute and deliver to Lender or its
designee or nominee a new lease of the Premises for the remainder of the term
of
the Lease upon all of the terms, covenants and conditions of the Lease. Subject
to Paragraph 2 hereof, Lender shall have the right, without Tenant’s consent, to
foreclose the Mortgage or to accept a deed in lieu of foreclosure of the
Mortgage or to exercise any other remedies under the Security
Documents.
6. Tenant
hereby consents to the Assignment of Leases and Rents from Landlord to Lender
in
connection with the Loan. Tenant has been advised that the interest of Landlord
under the Lease is to be assigned to Lender solely as security for the purposes
specified in said assignment, and Lender shall have no duty, liability or
obligation whatsoever under the Lease or any extension or renewal thereof,
either by virtue of said assignment or by any subsequent receipt or collection
of rents thereunder, unless Lender shall specifically undertake such liability
in writing or unless Lender or its designee or nominee becomes, and then only
with respect to periods in which Lender or its designee or nominee becomes,
the
owner of the Property.
7. Tenant
agrees that upon receipt of a written notice from Lender of a default by
Landlord under the Loan, Tenant will thereafter, if requested by Lender, pay
Base Rent, Additional Rent and other amounts due under the Lease, to Lender
in
accordance with the terms of the Lease. Landlord agrees and consents to each
such payment by Tenant.
8. The
Lease
shall not be assigned by Tenant, modified, amended, surrendered or terminated
without Lender’s prior written consent in each instance (except for a
termination of the Lease that is specifically permitted in the Lease without
Landlord’s or Lender’s consent).
9. Any
notice required or permitted to be given under this Agreement shall be deemed
given if delivered personally to an officer or general partner of the party
to
be notified or sent by (a) United States registered or certified mail, postage
prepaid, return receipt requested, or (b) national overnight courier service,
as
the case may be, at the following addresses:
If
to
Tenant:
________________________
________________________
________________________
________________________
with
a
copy to:
________________________
________________________
________________________
________________________
If
to
Lender:
________________________
________________________
________________________
________________________
With
a
copy to:
________________________
________________________
________________________
________________________
If
to
Landlord:
________________________
________________________
________________________
________________________
with
a
copy to:
________________________
________________________
________________________
________________________
10. The
term
“Lender” as used herein includes any successor or assign of the named Lender
herein, any purchaser at a foreclosure sale and any transferee pursuant to
a
deed in lieu of foreclosure, and their successors and assigns, and the terms
“Tenant” and “Landlord” as used herein include any successor and assign of the
named Tenant and Landlord herein, respectively; provided, however, that such
reference herein to Tenant’s or Landlord’s successors and assigns shall not be
construed as Lender’s consent to any assignment or other transfer by Tenant or
Landlord.
11. If
any
provision of this Agreement is held to be invalid or unenforceable by a court
of
competent jurisdiction, such provision shall be deemed modified to the extent
necessary to be enforceable, or if such modification is not practicable, such
provision shall be deemed deleted from this Agreement, and the other provisions
of this Agreement shall remain in full force and effect, and shall be liberally
construed in favor of Lender.
12. Neither
this Agreement nor any of the terms hereof may be terminated, amended,
supplemented, waived or modified orally, but only by an instrument in writing
executed by the party against which enforcement of the termination, amendment,
supplement, waiver or modification is sought.
13. This
Agreement shall be construed in accordance with the laws of the state of in
which the Property is located.
14. The
person executing this Agreement on behalf of Tenant, Lender and Landlord, as
applicable, is each authorized by such party hereto to do so and execution
hereof by such person is the binding act of, and enforceable against, Tenant,
Lender and Landlord, as applicable.
[Remainder
of page intentionally left blank.]
Witness
the execution hereof as of the date first above written.
ADD
SIGNATURE BLOCKS
EXHIBIT
E-1
TENANT
ESTOPPEL CERTIFICATE
THIS
TENANT ESTOPPEL CERTIFICATE (this “Certificate”)
is
given this __ day of ________, 200* by * (the “Tenant”)
in
favor of *, a * (the “Beneficiary”).
RECITALS:
A. Pursuant
to the terms and conditions of that certain Lease Agreement (the Lease”)
dated
*, ______________ (the “Landlord”)
leased
to Tenant certain real property in * County, * (the “Premises”),
which
Premises are more particularly described in the Lease.
B. Pursuant
to the terms and conditions of the Lease, the Beneficiary has requested that
Tenant execute and deliver this Certificate with respect to the
Lease.
NOW,
THEREFORE, in consideration of the above premises, Tenant hereby makes the
following statements for the benefit of the Beneficiary:
1. The
copy
of the Lease attached hereto and made a part hereof as Exhibit
A
is a
true, correct and complete copy of the Lease as amended to the date hereof,
which Lease is in full force and effect as of the date hereof, and has not
been
modified or amended.
2. The
Lease
sets forth the entire agreement between Landlord and Tenant relating to the
leasing of the Premises, and there are no other agreements, written or oral,
relating to the leasing of the Premises.
3. There
exists no uncured or outstanding defaults or Events of Default (as defined
in
the Lease) under the Lease, or events which, with the passage of time, and
the
giving of notice, or both, would be a default or Event of Default under the
Lease, except as follows: ___________________.
4. No
notice
of termination has been given by Landlord or Tenant with respect to the Lease,
except as follows: __________________.
5. All
payments due Landlord under the Lease through and including the date hereof
have
been made, including the monthly installment of Base Rent (as defined in the
Lease) for the period of _________________ to ________________ in the amount
of
$___________.
6. As
of the
date hereof, the annual Base Rent under the Lease is $__________.
7. There
are
no disputes between Landlord and Tenant with respect to any rental due under
the
Lease or with respect to any provision of the Lease, except as follows:
_____________.
8. Notwithstanding
any provisions of the Lease to the contrary, Tenant hereby consents to the
collateral assignment of the Lease by Landlord to the Beneficiary, and agrees
that
9. Tenant
hereby agrees that from and after the date hereof copies of all notices which
Tenant is required to deliver to Landlord under the Lease with respect to a
default, Event of Default or failure to perform by Landlord under the Lease,
shall be delivered to Beneficiary at the following address:
10. Tenant
represents and warrants that Tenant is in occupancy of the Premises pursuant
to
the Lease and Tenant has no offsets, counterclaims or defenses with respect
to
its obligations under the Lease, except as follows: _____________.
11. Tenant
understands and acknowledges that Beneficiary is relying upon the
representations set forth in this Certificate, and may rely thereon in
connection with the collateral assignment of the Lease to
Beneficiary.
IN
TESTIMONY WHEREOF, witness the signature of Tenant as of the day and year first
set forth above.
|
By:_________________________________
|
|
|
Name:
______________________________
|
|
|
Its:
_________________________________
|
STATE
OF
______________
COUNTY
OF
____________
The
foregoing instrument was acknowledged before me this ___ day of ___________,
200_ by _________________, as _________________ of ____________, a ____________,
on behalf of the _________. He/she is personally known to me or has produced
______________ as identification.
|
Print
Name:
|
|
|
Notary
Public, State of
|
|
|
Commission
#:
|
|
|
My
commission expires:
|
|
|
(NOTARY
SEAL)
|
EXHIBIT
E-2
LANDLORD
ESTOPPEL CERTIFICATE
THIS
LANDLORD ESTOPPEL CERTIFICATE (this “Certificate”)
is
given this __ day of ________, 200__ by ______________, a _____________ (the
“Landlord”)
in
favor of ___________, a ____________________ (the “Beneficiary”).
RECITALS:
A. Pursuant
to the terms and conditions of that certain Lease Agreement dated *,
______________, as amended (the Lease”),
Landlord leased to ___________________, a _________________________ (the
“Tenant”),
certain real property in _________ County, ____________ (the “Premises”),
which
Premises are more particularly described in the Lease.
B. Pursuant
to the terms and conditions of the Lease, Beneficiary has requested that
Landlord execute and deliver this Certificate with respect to the
Lease.
NOW,
THEREFORE, in consideration of the above premises, Tenant hereby makes the
following statements for the benefit of Beneficiary:
1. The
copy
of the Lease attached hereto and made a part hereof as Exhibit
A
is a
true, correct and complete copy of the Lease as amended to the date hereof,
which Lease is in full force and effect as of the date hereof, and has not
been
modified or amended.
2. The
Lease
sets forth the entire agreement between Landlord and Tenant relating to the
leasing of the Premises, and there are no other agreements, written or oral,
relating to the leasing of the Premises.
3. To
Landlord's knowledge without investigation, there exists no uncured or
outstanding default or Event of Default (as defined in the Lease) under the
Lease, except as follows: ___________________.
4. No
notice
of termination has been given by Landlord or Tenant with respect to the Lease,
except as follows: __________________.
5. Base
Rent
(as defined in the Lease) is payable in the monthly amount of
$___________.
6. As
of the
date hereof, the annual Base Rent under the Lease is $__________ has been paid
through ___________, ___, 20__.
7. Landlord
understands and acknowledges that Beneficiary is relying upon the
representations set forth in this Certificate, and may rely thereon in
connection with the collateral assignment of the Lease to
Beneficiary.
B-2-
IN
TESTIMONY WHEREOF, witness the signature of Landlord as of the day and year
first set forth above.
|
By: _____________________________
|
|
|
Name:
__________________________
|
|
|
Its:
_____________________________
|
STATE
OF
______________
COUNTY
OF
____________
The
foregoing instrument was acknowledged before me this ___ day of ___________,
200_ by _________________, as _________________ of ____________, a ____________,
on behalf of the _________. He/she is personally known to me or has produced
______________ as identification.
| ________________________________ | |
|
Print
Name: _______________________
|
|
|
Notary
Public, State of _______________
|
|
|
Commission
#: _____________________
|
|
|
My
commission expires: ______________
|
|
|
(NOTARY
SEAL)
|
EXHIBIT
F
FORM
OF AMENDED AND RESTATED LEASE
EXHIBIT
G
MEMORANDUM
OF LEASE
THIS
MEMORANDUM OF LEASE, entered into as of this ____ day of _______, 200*, by
and
between ________________, a ___________, whose address is ___________, as
Landlord, and *, a *, whose address is *, as Tenant.
W
I T N E
S S E T H:
THAT,
Landlord and Tenant have heretofore entered into a certain Lease Agreement
dated
*, 200*, as amended (the “Lease”),
covering certain premises consisting of, among other things, certain real
property located in * County, * more particularly described on Exhibit
A
attached
hereto upon which there is constructed and located certain improvements
(together the “Premises”),
and
WHEREAS,
it is the desire of both Landlord and Tenant to memorialize the Lease and set
forth certain pertinent data with respect thereto,
NOW
THEREFORE, with respect to the Lease, Landlord and Tenant hereby acknowledge
and
agree as follows:
1. Demise.
The
Premises have been and are hereby demised, let and leased by Landlord to Tenant,
and taken and accepted by Tenant from Landlord, all pursuant to and in
accordance with the Lease.
2. Term.
The
Initial Term of the Lease is from _________ __, 2006, until __________ __,
2026.
Tenant has the right, privilege and option to renew and extend the Initial
Term
of the Lease for up to five (5) additional periods of five (5) years each,
subject to the provisions and conditions of the Lease.
3. Possession.
Landlord has delivered possession of the Premises to Tenant and Tenant has
accepted delivery and taken possession of the Premises from
Landlord.
4. Liens
on Landlord’s Interest Prohibited.
By the
terms of the Lease, Landlord’s interest in the Premises may not be subjected to
liens of any nature by reason of Tenant’s construction, alteration, repair,
restoration, replacement or reconstruction of any improvements on or in the
Premises, including those arising in connection with or as an incident to the
renovation of the improvements located on the Premises, or by reason of any
other act or omission of Tenant (or of any person claiming by, through or under
Tenant) including, without limitation, mechanics’ and materialmen’s liens.
Accordingly, all persons dealing with Tenant are hereby placed on notice that
such persons shall not look to Landlord or to Landlord’s credit or assets
(including Landlord’s interest in the Premises) for payment or satisfaction of
any obligations incurred in connection with the construction, alteration,
repair, restoration, renovation, replacement or reconstruction thereof by or
on
behalf of Tenant. Tenant has no power, right or authority to subject Landlord’s
interest in the Premises to any mechanics’ or materialmen’s lien or claim of
lien.
5. Subordination
and Attornment.
The
Lease specifically provides that the Lease and Tenant’s leasehold interest in
and to the Premises are junior, inferior, subordinate and subject in all
respects to any mortgage, deed of trust or deed to secure debt now or hereafter
in force and effect upon or encumbering the Premises or any portion thereof,
provided that Tenant’s possession and use of the Premises are recognized and not
disturbed by the holder or beneficiary thereunder or its successor or assigns
except upon the occurrence and continuance of an Event of Default (as defined
in
the Lease) and termination of Tenant’s right to possession of the Premises in
accordance with the provisions of the Lease. Tenant shall, and has agreed to,
attorn to any successor of the interest of Landlord under the Lease, including
the purchaser at any foreclosure sale occasioned by the foreclosure of any
such
mortgage, deed of trust or deed to secure debt, for the balance of the Term
of
the Lease remaining at the time of the succession of such interest to such
successor.
6. Inconsistent
Provisions.
The
provisions of this Memorandum constitute only a general description of the
content of the Lease with respect to matters set forth herein. Accordingly,
third parties are advised that the provisions of the Lease itself shall be
controlling with respect to all matters set forth herein. In the event of any
discrepancy between the provisions of the Lease and this Memorandum, the
provisions of the Lease shall take precedence and prevail over the provisions
of
this Memorandum.
7. Termination
of Lease.
All
rights of Tenant in the Premises shall terminate upon the expiration or earlier
termination of the Lease, which may be evidenced by a written notice of such
expiration or termination recorded or filed by Landlord among the appropriate
land records of the County in which the Premises are located.
8. Right
of First Refusal.
Pursuant to the terms of the Lease, Tenant has a first right of refusal to
purchase the Premises as set forth therein.
IN
WITNESS WHEREOF, Landlord and Tenant have caused this Memorandum of Lease to
be
duly executed on or as of the day and year first above written.
[ADD
SIGNATURE BLOCKS]
STATE
OF
___________
COUNTY
OF
_________
The
foregoing instrument was acknowledged before me this __ day of ______, 200__
by
_______________, as ____________ of _____________________, a ________, on behalf
of the _____________. He/she is personally known to me or has produced _________
as identification.
| _________________________________ | |
|
Print
Name: ________________________
|
|
|
Notary
Public, State of ________________
|
|
|
Commission
#: ______________________
|
|
|
My
commission expires: _______________
|
|
|
(NOTARY
SEAL)
|
STATE
OF
_____________
COUNTY
OF
___________
The
foregoing instrument was acknowledged before me this __ day of ______, 200__
by
_______________, as ____________ of _____________________, a ________, on behalf
of the _____________. He/she is personally known to me or has produced _________
as identification.
| ________________________________ | |
|
Print
Name: _______________________
|
|
|
Notary
Public, State of _______________
|
|
|
Commission
#: _____________________
|
|
|
My
commission expires: ______________
|
|
|
(NOTARY
SEAL)
|
