MASTER LEASE
THIS MASTER LEASE (this "Lease") is made as of July 21, 2000 (the
"Effective Date"), by and between COUNTRY STORES PROPERTY I, LLC, a Delaware
limited liability company ("Lessor"), whose address is c/o U.S. Realty
Advisors, LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
CRACKER BARREL OLD COUNTRY STORE, INC., a Tennessee corporation ("Lessee"),
whose address is X.X. Xxx 000, 000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000-
0787.
W I T N E S S E T H :
THAT, in consideration of the mutual covenants and agreements herein
contained, Lessor and Lessee hereby covenant and agree as follows:
1. CERTAIN DEFINED TERMS. The following terms shall have the
following meanings for all purposes of this Lease:
"ACKNOWLEDGEMENT" means the Acknowledgement of Lease Assignment dated
as of the date of this Lease among Lessor, Lessee, Lender and Remainderman.
A duplicate original Acknowledgement will be executed and recorded in the
applicable real property records for each Property.
"ADA" is defined in Section 16.C.
"ADDITIONAL RENTAL" is defined in Section 5.B.
"AFFILIATE" means any Person which directly or indirectly controls,
is under common control with, or is controlled by any other Person. For
purposes of this definition, "controls", "under common control with" and
"controlled by" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or otherwise.
"AGGREGATE BASE ANNUAL RENTAL" means, collectively, the Base Annual
Rental and the Related Base Annual Rental.
"AGGREGATE FIXED CHARGE COVERAGE RATIO" shall have the meaning set
forth in Section 8.A.
"AGGREGATE GROSS SALES" means, collectively, the Gross Sales and the
Related Gross Sales.
"AGGREGATE PURCHASE PRICE" means, collectively, the Purchase Price
and the Related Purchase Price.
"APPLICABLE PERCENTAGE" means the percentage set forth in Schedule
I to the Sale-Leaseback Agreement with respect to the applicable Property,
which percentage shall be adjusted as appropriate by Lessor to reflect the
release of individual Properties from this Lease.
"APPLICABLE REGULATIONS" means all applicable statutes, regulations,
rules, ordinances, codes, licenses, permits, orders and approvals of each
Governmental Authority having jurisdiction over Lessee and/or any of the
Properties, including, without limitation, all health, building, fire, safety
and other codes, ordinances and requirements and all applicable standards of
the National Board of Fire Underwriters and the ADA, in each case, as
amended, and any judicial or administrative interpretation thereof, including
any judicial order, consent, decree or judgment applicable to Lessee.
"APPROVED INSTITUTION" means any domestic federal or state charted
commercial bank located in any of the cities listed on the attached Schedule
II and having, at the time of selection, (i) a long-term deposit or long-term
unsecured debt rating of at least AA or its equivalent issued by Standard &
Poors Rating Group, Xxxxx'x Investors Service, Inc., any successor to such
agencies or any other nationally recognized credit rating agency, and (ii)
combined capital and surplus in excess of $100,000,000.00.
"BASE ANNUAL RENTAL" means $5,344,600.44.
"BASE MONTHLY RENTAL" means an amount equal to 1/12 of the applicable
Base Annual Rental.
"BUSINESS DAY" means a day on which national banks are not required
or authorized to remain closed.
"CAPITAL LEASE" is defined in Section 8.A.
"CASUALTY" is defined in Section 21.A.
"CASUALTY SUBSTITUTION OFFER" is defined in Section 21.C.
"CASUALTY/CONDEMNATION SUBSTITUTION" is defined in Section 55.A(i).
"CASUALTY TERMINATION PAYMENT" is defined in Section 21.C.
"CONFIDENTIAL INFORMATION" means, except as otherwise contemplated
by Section 59, all proprietary or confidential or nonpublic information
relating to restaurant and retail operations, menu and recipe, marketing,
business strategy, trade secrets relating to or used by Lessee or its
Affiliates in their businesses or being developed for their use, capital
structure and financial matters, including, without limitation, Store Income
Statements, forecasts and projections.
"CONDEMNATION SUBSTITUTION OFFER" is defined in Section 21.G.
"CONDEMNATION TERMINATION PAYMENT" is defined in Section 21.G.
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"CODE" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101
et seq., as amended.
"DEBT" is defined in Section 8.A.
"DEEDS" is defined in the Sale-Leaseback Agreement.
"DE MINIMIS AMOUNTS" shall mean (i) with respect to any presence,
Release or Threatened Release of Hazardous Materials, those quantities of
Hazardous Materials in any form or combination of forms, which do not
constitute a violation requiring regulation or remediation under any
Environmental Laws in the state in which the affected Property is located,
and (ii) with respect to the use or storage of Hazardous Materials in or upon
any of the Properties, those quantities of Hazardous Materials customarily
employed in the ordinary course of, or associated with, the operation of a
Permitted Facility and used or stored in compliance with Environmental Laws.
"DEFAULT RATE" means 18% per annum or the highest rate permitted by
law, whichever is less.
"DEPRECIATION AND AMORTIZATION" is defined in Section 8.A.
"DISCLOSURES" is defined in Section 8.C.
"EARLY SUBSTITUTION DATE" is defined in Section 55.A.
"EARLY SUBSTITUTION TERMINATION DATE" is defined in Section 55.A.
"ECONOMIC SUBSTITUTION" is defined in Section 55.A(ii).
"ECONOMIC SUBSTITUTION OFFER" is defined in Section 57(i).
"ECONOMIC TERMINATION PAYMENT" is defined in Section 57(ii).
"EFFECTIVE DATE" is defined in the Preamble.
"ENVIRONMENTAL CONDITION" means any condition with respect to soil,
surface waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium comprising or surrounding
any of the Properties, whether or not yet discovered, which could or does
result in any damage, loss, cost, expense, claim, demand, order or liability
to or against Lessee or Lessor by any third party (including, without
limitation, any Governmental Authority), including, without limitation, any
condition resulting from the operation of Lessee's business and/or the
operation of the business of any other property owner or operator in the
vicinity of any of the Properties and/or any activity or operation formerly
conducted by any Person on or off any of the Properties.
"ENVIRONMENTAL INSURER" means American International Specialty Lines
Insurance Company or such other insurer providing Environmental Policies
reasonably acceptable to Lessor.
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"ENVIRONMENTAL LAWS" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law, relating to Hazardous Materials and/or the protection of human
health or the environment, by reason of a Release or a Threatened Release of
Hazardous Materials or relating to liability for or costs of Remediation or
prevention of Releases. "Environmental Laws" includes, but is not limited
to, the following statutes, as amended, any successor thereto, and any
regulations, rulings, orders or decrees promulgated pursuant thereto, and any
state or local statutes, ordinances, rules, regulations and the like
addressing similar issues: the Comprehensive Environmental Response,
Compensation and Liability Act; the Emergency Planning and Community Right-
to-Know Act; the Hazardous Materials Transportation Act; the Resource
Conservation and Recovery Act (including but not limited to Subtitle I
relating to underground storage tanks); the Solid Waste Disposal Act; the
Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act;
the Occupational Safety and Health Act; the Federal Water Pollution Control
Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered
Species Act; the National Environmental Policy Act; and the River and Harbors
Appropriation Act. "Environmental Laws" also includes, but is not limited
to, any present and future federal, state and local laws, statutes,
ordinances, rules, regulations and the like, as well as common law:
conditioning transfer of property upon a negative declaration or other
approval of a Governmental Authority of the environmental condition of the
property; requiring notification or disclosure of Releases or other
environmental condition of any of the Properties to any Governmental
Authority or other Person, whether or not in connection with transfer of
title to or interest in property; imposing conditions or requirements
relating to Hazardous Materials in connection with permits or other
authorization for lawful activity; relating to nuisance, trespass or other
causes of action related to Hazardous Materials; and relating to wrongful
death, personal injury, or property or other damage in connection with the
physical condition or use of any of the Properties by reason of the presence
of Hazardous Materials in, on, under or above any of the Properties.
"ENVIRONMENTAL LIENS" is defined in Section 16.D(viii).
"ENVIRONMENTAL POLICIES" means the environmental insurance policy or
policies, as applicable, issued by Environmental Insurer to Lessor with
respect to the Properties, which Environmental Policies shall be in form and
substance satisfactory to Lessor in its sole discretion.
"EQUIPMENT PAYMENT AMOUNT" is defined in Section 8.A.
"EVENT OF DEFAULT" is defined in Section 23.
"FAIR MARKET VALUE" is defined in Section 56.
"FCCR PERIOD" means the twelve month period of time immediately
preceding the date on which Lessee gives written notice to Lessor that Lessee
is proposing to substitute a Substitute Property as permitted by Section
55.A.
"FCCR PROPERTY" means, collectively, the Properties and the Related
Properties.
"FISCAL YEAR" is defined in Section 8.A.
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"GAAP" means generally accepted accounting principles in the United
States, at the time at which the information affected by these principles was
prepared, consistently applied.
"GOVERNMENTAL AUTHORITY" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or quasi-
governmental authority of the United States or the state in which the
particular Property is located or any political subdivision thereof.
"GROSS SALES" means the gross sales, excluding sales tax, arising
from all business conducted at all of the Properties by Lessee during the
period of determination, as shown on Lessee's Store Income Statements.
"GUARANTOR" means CBRL Group, Inc., a Tennessee corporation.
"GUARANTY" means that certain Unconditional Guaranty of Payment and
Performance dated as of the date of this Lease to be executed by Guarantor
with respect to the obligations of Lessee under this Lease, as the same may
be amended from time to time.
"HAZARDOUS MATERIALS" means (i) any toxic substance or hazardous
waste, substance, solid waste, or related material, or any pollutant or
contaminant; (ii) radon gas, asbestos in any form which is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
which contains dielectric fluid containing levels of polychlorinated
biphenyls in excess of federal, state or local safety guidelines, whichever
are more stringent, or any petroleum product; (iii) any substance, gas,
material or chemical which is or may be defined as or included in the
definition of "hazardous substances," "toxic substances," "hazardous
materials," "hazardous wastes," "regulated substances" or words of similar
import under any Environmental Laws; and (iv) any other chemical, material,
gas or substance the exposure to or release of which is or becomes
prohibited, limited or regulated by any Governmental Authority that asserts
or may assert jurisdiction over any of the Properties or the operations or
activity at any of the Properties, or any chemical, material, gas or
substance that does or is likely to pose a hazard to the health and/or safety
of the occupants of any of the Properties or the owners and/or occupants of
property adjacent to or surrounding any of the Properties.
"INDEMNIFIED PARTIES" means Lessor, Remainderman, and Lender and
their directors, officers, shareholders, trustees, beneficial owners,
partners, members, and any directors, officers, shareholders, trustees,
beneficial owners, partners, members of any beneficial owners, partners or
members of Lessor, Remainderman or Lender, and all employees, agents,
servants, representatives, contractors, subcontractors, Affiliates,
subsidiaries, participants, successors and assigns of any of the foregoing,
including, without limitation, any successors by merger, consolidation or
acquisition of all or a substantial portion of the assets and business of
Lessor, Remainderman or Lender, as applicable.
"INITIAL TERM" means the period of the Lease Term commencing on the
Effective Date and ending on July 31, 2021, or such earlier date that this
Lease is terminated.
"INTEREST EXPENSE" is defined in Section 8.A.
"LEASE TERM" is defined in Section 4.
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"LEASE YEAR" means the 12-month period commencing on August 1, 2000
and ending on July 31, 2001 and each successive 12-month period thereafter.
"LENDER" means FFCA Acquisition Corporation, a Delaware corporation,
its successors and assigns, any successor lender in connection with any loan
secured by Lessor's interest in any of the Properties, and any servicer of
any loan secured by Lessor's interest in any of the Properties, including,
without limitation, Franchise Finance Corporation of America, a Delaware
corporation.
"LESSOR'S TOTAL INVESTMENT" means $48,803,594.00.
"LETTER OF CREDIT" means a letter of credit substantially in the form
attached to this Lease as Exhibit C issued by an Approved Institution in
accordance with the terms of Section 23.A(ix)(2) of this Lease.
"LOAN AGREEMENT" means the Loan Agreement dated as of the date of
this Lease in effect between Lessor and Lender, as such agreement may be
amended from time to time and any and all replacements or substitutions
thereof.
"LOAN DOCUMENTS" means, collectively, the Loan Agreement, the Notes,
the Mortgages and all other documents, instruments and agreements executed in
connection therewith or contemplated thereby, all as amended and supplemented
and any and all replacements or substitutions thereof.
"LOSSES" means any and all claims, suits, liabilities (including,
without limitation, strict liabilities), actions, proceedings, obligations,
debts, damages, losses, costs, expenses, diminutions in value, fines,
penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement and damages of whatever kind or nature (including, without
limitation, attorneys' fees, court costs and other costs of defense).
"MATERIAL ADVERSE EFFECT" means any act, omission or event which
would:
(x) prevent Lessee from performing its obligations under
this Lease or any of the other Sale-Leaseback Documents;
(y) have the effect of reducing Guarantor's net worth as
determined in accordance with GAAP below $680,000,000.00; or
(z) prevent the operation of any of the Properties as a
Permitted Facility or expose Lessor or any other Indemnified Party
to potential criminal liability or civil liability which is not
insured or indemnified against pursuant to this Lease.
"MATERIAL CASUALTY" means the occurrence of damage or destruction to
the improvements located on a Property the cost of which to restore is at
least equal to 40% of the then current replacement cost of such improvements
and the restoration of which cannot reasonably be completed with 120 days
from the occurrence of such damage or destruction, both as reasonably
determined by Lessee.
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"MATERIAL TAKING" means a Taking of the whole of any of the
Properties, other than for temporary use, or a Taking of any of the
Properties (other than for temporary use) which will: (i) materially impair
access to such Property in Lessee's reasonable judgment; (ii) either result
in the loss of 10% or more of the parking spaces at such Property or the loss
of such parking spaces as would result in the Property being reasonably
incapable of satisfying the parking requirements under Applicable Regulations
either by the addition or replacement of parking spaces; or (iii) result in
the permanent closure or removal of such portion of the improvements located
on such Property as to make uneconomical the continued use of the remainder
of such Property as a Permitted Facility.
"MATURITY DATE" means August 1, 2020.
"MAXIMUM ALLOWED ANNUAL RENTAL" means, for any Fiscal Year in which
Lessee has failed to satisfy the Aggregate Fixed Charge Coverage Ratio
requirement, an amount equal to (x) the sum of Net Income, Depreciation and
Amortization, Interest Expense and Operating Lease Expense, less a corporate
overhead allocation in an amount equal to 4% of Aggregate Gross Sales,
divided by (y) 1.25.
"MEMORANDUM" means the Memorandum of Master Lease dated as of the
date of this Lease between Lessor and Lessee with respect to the Properties.
A duplicate original Memorandum will be executed and recorded in the
applicable real property records for each Property. Each Memorandum will
contain exhibits with the addresses and store identification numbers for all
of the Properties and the legal description for the applicable Property.
"MORTGAGES" means, collectively, the Mortgages, Deeds of Trust or
Deeds to Secure Debt, Assignments of Rents and Leases, Security Agreements
and Fixture Filings dated as of even date herewith executed by Lessor for the
benefit of Lender with respect to the Properties, as such instruments may be
amended, restated and/or supplemented from time to time and any and all
replacements or substitutions thereof.
"NET INCOME" is defined in Section 8.A.
"NET RESTORATION AMOUNT" is defined in Section 21.K.
"NET SUBLEASE RENTS" means all rents received by Lessor during the
applicable Fiscal Year pursuant to any subleases contemplated by Section 26
of this Lease, less those operating expenses incurred by Lessor, if any,
pursuant to the terms and conditions of such subleases with respect to the
affected Properties.
"NON-DISTURBANCE AND ATTORNMENT AGREEMENT" is defined in Section 24.
"NOTES" means, collectively, the Promissory Notes dated as of the
date of this Lease executed by Lessor and payable to Lender with respect to
the Properties, as such notes may be amended, restated and/or substituted
from time to time.
"OPERATING LEASE EXPENSE" is defined in Section 8.A.
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"OPTION NOTICE" is defined in Section 56.
"PARTICIPATION" means the granting of any participations in any
document evidencing loan obligations set forth in the Loan Agreement or any
of the Loan Documents or any or all servicing rights with respect thereto.
"PARTIAL CASUALTY" is defined in Section 21.K.
"PARTIAL TAKING" is defined in Section 21.K.
"PENDING ACTIONS" means the legal proceedings described in
Guarantor's Quarterly Report on Form 10-Q with respect to its fiscal quarter
ended April 28, 2000 filed with the United States Securities and Exchange
Commission.
"PERMITTED FACILITY" means a Cracker Barrel Old Country Store
restaurant; provided, however, up to four of the Properties in the aggregate
may be operated as a Xxxxx'x Roadhouse restaurant or as another nationally or
regionally recognized restaurant concept.
"PERSON" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental Authority
or any other form of entity.
"PERSONALTY" means all machinery, appliances, furniture, equipment,
trade fixtures, ceiling fans and rods and other personal property owned or
leased by Lessee from time to time situated on or used in connection with the
Properties; provided, however, the term "Personalty" shall not include the
HVAC, supply fans, air ducts, plumbing and electrical fixtures and lighting
poles, all of which items are intended to be fixtures as such term is used
within the definition of "Properties".
"PREPAYMENT CHARGES" means, for purposes of this Lease, an amount
equal to any prepayment premium or charge or the "Yield Maintenance Payment"
(as defined below), or any other cost or expense imposed on Lessor by the
applicable Lender in connection with the payment of the applicable Note(s) or
promissory note(s) prior to the Maturity Date. While the Notes are
outstanding, the Prepayment Charge shall equal the Yield Maintenance Payment,
and the Prepayment Charge payable under any promissory note(s) executed
subsequent to the satisfaction of the Notes shall not exceed the Yield
Maintenance Payment.
"PREPAYMENT OF RENT" is defined in Section 23.A(ix).
"PROPERTIES" means, collectively, the parcels of real estate
described by address, Lessor Number and Unit Number in Exhibit A attached
hereto and legally described in Exhibit A-1 attached hereto, all rights,
privileges and appurtenances associated therewith, and all buildings,
structures, fixtures (but not trade fixtures) and other improvements
(excluding Personalty) now or hereafter located on such real estate (whether
or not affixed to such real estate).
"PROPERTY" means any one of the Properties.
"PROPRIETARY CONFIDENTIAL INFORMATION" means all Confidential
Information other than financial information delivered to Lessor and/or
Lender pursuant to the Sale-Leaseback
8
Agreement and/or this Lease, which financial information includes, without
limitation, the Store Income Statements.
"PURCHASE PERIOD" is defined in Section 56.
"PURCHASE PRICE" means $47,144,092.00.
"OPTION NOTICE" is defined in Section 56.
"QUESTIONNAIRES" is defined in the Sale-Leaseback Agreement.
"REINVESTMENT RATE" means an interest rate equal to the then current
yield of U.S. treasury securities having a weighted average life to maturity
closest to the Maturity Date.
"REJECTABLE SUBSTITUTION OFFER" is defined in Section 55.A.
"RELATED BASE ANNUAL RENTAL" means the "Base Annual Rental" as
defined in the Related Sale-Leaseback Agreement.
"RELATED GROSS SALES" means the "Gross Sales" as defined in the
Related Sale-Leaseback Agreement.
"RELATED LEASE" means the "Lease" as defined in the Related Sale-
Leaseback Agreement.
"RELATED PROPERTIES" means the "Properties" as defined in the Related
Sale-Leaseback Agreement.
"RELATED PURCHASE PRICE" means the "Purchase Price" as defined in the
Related Sale-Leaseback Agreement.
"RELATED SALE-LEASEBACK AGREEMENT" means that certain Sale-Leaseback
Agreement dated as of the date of this Lease among Lessor, certain Affiliates
of Lessor and Lessee other than the Sale-Leaseback Agreement.
"RELEASE" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying,
escaping, dumping, disposing or leaching of Hazardous Materials in, on,
under, to or from the soil, surface waters, groundwaters, land, stream
sediments, surface or subsurface strata, ambient air or any other
environmental medium comprising or surrounding any of the Properties except
in De Minimis Amounts.
"REMAINDERMAN" means CS Remainder I, LLC, a Delaware limited
liability company, which owns a remainder interest in the Properties,
together with its successors and assigns.
"REMEDIATION" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or
otherwise remediate any Hazardous Materials, any actions to prevent, cure or
mitigate any Release, any action to comply with any Environmental Laws or
with any permits issued pursuant thereto in connection with a remediation and
any inspection, investigation, study, monitoring, assessment, audit, sampling
9
and testing, laboratory or other analysis, or any evaluation relating to any
Hazardous Materials in connection with a remediation.
"RENT ADJUSTMENT AMOUNT" means an amount equal to the difference
between (x) the Aggregate Base Annual Rental then in effect, and (y) the
Maximum Allowed Annual Rental.
"SALE-LEASEBACK AGREEMENT" means that certain Sale-Leaseback
Agreement dated as of the date hereof among Lessor, Lessee, CBOCS West, Inc.,
a Nevada corporation, CBOCS Michigan, Inc., a Michigan corporation, and CBOCS
Texas Limited Partnership, a Texas limited partnership, with respect to the
Properties.
"SALE-LEASEBACK DOCUMENTS" means the Sale-Leaseback Agreement, this
Lease, the Memorandum, the Guaranty, the Deeds, the Acknowledgement, the
Tripartite Agreement and all other documents executed in connection
therewith.
"SECURITIZATION" means one or more sales, dispositions, transfers or
assignments by Lender or any Affiliate of Lender to a special purpose
corporation, trust or other entity identified by Lender or any Affiliate of
Lender of notes evidencing obligations to repay secured or unsecured loans
owned by Lender or any Affiliate of Lender (and, to the extent applicable,
the subsequent sale, transfer or assignment of such notes to another special
purpose corporation, trust or other entity identified by Lender or any
Affiliate of Lender), and the issuance of bonds, certificates, notes or
other instruments evidencing interests in pools of such loans, whether in
connection with a permanent asset securitization or a sale of loans in
anticipation of a permanent asset securitization. Each Securitization shall
be undertaken in accordance with all requirements which may be imposed by the
investors or the rating agencies involved in each such sale, disposition,
transfer or assignment or which may be imposed by applicable securities, tax
or other laws or regulations, including, without limitation, laws relating to
Lender's status as a real estate investment trust.
"STORE INCOME STATEMENTS" means the operating statements prepared for
each of the Properties in the form attached as Exhibit E to this Lease and
otherwise containing such detail as is necessary to determine Lessee's
compliance with the provisions of Section 8.A of this Lease. Lessee may
prepare the operating statements for the Properties in a form other than that
set forth on Exhibit E provided the form Lessee uses contains the same
information detailed on the attached Exhibit E and contains such detail as is
necessary to determine Lessee's compliance with the provisions of Section 8.A
of this Lease.
"SUBSTITUTE DOCUMENTS" is defined in Section 55.B(viii).
"SUBSTITUTE PROPERTY" means one or more parcels of real estate
substituted for any of the Properties in accordance with the requirements of
Section 55, together with all rights, privileges and appurtenances associated
therewith, and all buildings, structures, fixtures (but not trade fixtures)
and other improvements located thereon (excluding Personalty). For purposes
of clarity, where two or more parcels of real property comprise a Substitute
Property, such parcels shall be aggregated and deemed to constitute the
Substitute Property for all purposes of this Lease.
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"SUBSTITUTE PROPERTY PERMITTED EXCEPTIONS" is defined in Section
55.B(i)(5).
"SUCCESSOR LESSOR" is defined in Section 24.
"TAKING" is defined in Section 21.A.
"TEMPORARY TAKING" is defined in Section 21.I.
"THREATENED RELEASE" means a substantial likelihood of a Release
which requires action to prevent or mitigate damage to the soil, surface
waters, groundwaters, land, stream sediments, surface or subsurface strata,
ambient air or any other environmental medium comprising or surrounding any
of the Properties which may result from such Release.
"TITLE COMPANY" means Lawyers Title Insurance Corporation, or such
other nationally recognized title insurance company reasonably acceptable to
Lessor.
"TRANSFER" means any sale, transfer or assignment of any document
evidencing loan obligations set forth in the Loan Agreement or any of the
Loan Documents, or any or all servicing rights with respect thereto.
"TRIPARTITE AGREEMENT" means the Tripartite Agreement dated as of the
date of this Agreement among Lessor, Lessee and Remainderman.
"YIELD MAINTENANCE PAYMENT" means an amount equal to the positive
difference between (a) the present value, computed at the Reinvestment Rate,
of the stream of monthly principal and interest payments in effect under the
applicable Note(s) as of the Effective Date from the date of prepayment
through the Maturity Date, and (b) the outstanding principal balance of such
Note(s) as of the date of prepayment; provided, however, if such difference
is a negative number, the Yield Maintenance Payment shall be zero.
2. DEMISE OF PROPERTIES. In consideration of the rentals and
other sums to be paid by Lessee and of the other terms, covenants and
conditions on Lessee's part to be kept and performed, Lessor hereby leases to
Lessee, and Lessee hereby takes and hires, the Properties. The Properties
are leased to Lessee "AS IS" and "WHERE IS" without representation or
warranty by Lessor and subject to the rights of parties in possession, to the
existing state of title, any state of facts which an accurate survey or
physical inspection might reveal, and all Applicable Regulations now or
hereafter in effect. Lessee has examined each of the Properties and title to
each of the Properties and has found all of the same satisfactory for all of
Lessee's purposes.
3. CHARACTERIZATION OF LEASE. A. Lessor and Lessee intend
that:
(i) this Lease constitutes a single master lease of all, but
not less than all, of the Properties and that Lessor and Lessee have
executed and delivered this Lease with the understanding that this
Lease constitutes a unitary, unseverable instrument pertaining to
all, but not less than all, of the Properties, and that neither this
Lease nor the duties, obligations or rights of Lessee may be
allocated or otherwise divided among the Properties by Lessee;
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(ii) this Lease is a "true lease" and not a financing lease,
capital lease, mortgage, equitable mortgage, deed of trust, trust
agreement, security agreement or other financing or trust
arrangement, and the economic realities of this Lease are those of
a true lease; and
(iii) the business relationship created by this Lease and
any related documents is solely that of a long-term commercial lease
between landlord and tenant and has been entered into by both parties
in reliance upon the economic and legal bargains contained herein.
X. Xxxxxx and Lessee acknowledge and agree that the Lease Term,
including any term extensions provided for in this Lease, is less than 90% of
the expected remaining economic life of each of the Properties.
C. Lessee and Lessor each waive any claim or defense based upon
the characterization of this Lease as anything other than a true lease and
irrevocably waive any claim or defense which asserts that the Lease is
anything other than a true lease. Lessee and Lessor covenant and agree that
they will not assert that this Lease is anything but a true lease. Lessee and
Lessor each stipulate and agree not to challenge the validity, enforceability
or characterization of the lease of the Properties as a true lease and
further stipulate and agree that nothing contained in this Lease creates or
is intended to create a joint venture, partnership (either de jure or de
facto), equitable mortgage, trust, financing device or arrangement, security
interest or the like. Lessee and Lessor each shall support the intent of the
parties that the lease of the Properties pursuant to this Lease is a true
lease and does not create a joint venture, partnership (either de jure or de
facto), equitable mortgage, trust, financing device or arrangement, security
interest or the like, if, and to the extent that, any challenge occurs.
D. Lessee and Lessor each waive any claim or defense based upon
the characterization of this Lease as anything other than a master lease of
all of the Properties and irrevocably waive any claim or defense which
asserts that the Lease is anything other than a master lease. Lessee and
Lessor each covenant and agree that it will not assert that this Lease is
anything but a unitary, unseverable instrument pertaining to the lease of
all, but not less than all, of the Properties. Lessee and Lessor each
stipulate and agree not to challenge the validity, enforceability or
characterization of the lease of the Properties as a unitary, unseverable
instrument pertaining to the lease of all, but not less than all, of the
Properties. Lessee and Lessor each shall support the intent of the parties
that this Lease is a unitary, unseverable instrument pertaining to the lease
of all, but not less than all, of the Properties, if, and to the extent that,
any challenge occurs.
E. Lessee represents and warrants to Lessor that (i) the Base
Annual Rental is the fair market value for the use of the Properties and was
agreed to by Lessor and Lessee on that basis, and (ii) the execution,
delivery and performance by Lessee of this Lease does not constitute a
transfer of all or any part of the Properties, except for the leasehold
interest and rights in and to the Properties created by this Lease.
F. The expressions of intent, the waivers, the representations
and warranties, the covenants, the agreements and the stipulations set forth
in this Section are a material inducement to Lessor's entering into this
Lease.
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4. LEASE TERM. The Lease Term for all of the Properties shall
commence as of the Effective Date and shall expire on July 31, 2021, unless
terminated sooner as provided in this Lease and as may be extended for one
initial period of ten years and two subsequent periods of five years each as
set forth in Section 27 below. The time period during which this Lease shall
actually be in effect is referred to herein as the "Lease Term."
5. RENTAL AND OTHER PAYMENTS. A. If the Effective Date is a
date other than the first day of the month, Lessee shall pay Lessor on the
Effective Date the Base Monthly Rental prorated on the basis of the ratio
that the number of days from the Effective Date through the last day in the
month containing the Effective Date bears to the number of days in such
month. Thereafter, on or before the first day of each succeeding calendar
month, Lessee shall pay Lessor in advance the Base Monthly Rental.
B. All sums of money required to be paid by Lessee under this
Lease which are not specifically referred to as rent ("Additional Rental")
shall be considered rent although not specifically designated as such.
Lessor shall have the same remedies for nonpayment of Additional Rental as
those provided herein for the nonpayment of Base Annual Rental.
6. REPRESENTATIONS AND WARRANTIES OF LESSOR. The
representations and warranties of Lessor contained in this Section are being
made to induce Lessee to enter into this Lease and Lessee has relied and will
continue to rely upon such representations and warranties. Lessor represents
and warrants to Lessee as of the Effective Date as follows:
A. ORGANIZATION, AUTHORITY AND STATUS OF LESSOR. (i)
Lessor has been duly organized and is validly existing and in good
standing under the laws of the State of Delaware. All necessary
corporate or other appropriate formal action has been taken to
authorize the execution, delivery and performance by Lessor of this
Lease and the other documents, instruments and agreements provided
for herein.
(ii) The Person who has executed this Lease on behalf of
Lessor is duly authorized so to do.
B. ENFORCEABILITY. This Lease constitutes the legal,
valid and binding obligation of Lessor, enforceable against Lessor
in accordance with its terms, subject to general equitable principles
and to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws from time to time in effect affecting the
enforcement of creditors rights generally.
C. ABSENCE OF BREACHES OR DEFAULTS. Lessor is not in
breach or default under any document, instrument or agreement to
which Lessor is a party or by which Lessor, any of the Properties or
any of Lessor's property is subject or bound, which breach or
default would have a material adverse effect on Lessor or the
Properties. The authorization, execution, delivery and performance
of this Lease and the other documents, instruments and agreements
provided for herein will not result in any breach of or default under
any document, instrument or agreement to which Lessor is a party or
by which Lessor, any of the Properties or any of Lessor's property
is subject or bound, which breach or default would have a material
adverse effect on Lessor or the Properties. The authorization,
13
execution, delivery and performance of this Lease and the documents,
instruments and agreements provided for herein will not violate any
applicable law, statute, regulation, rule, ordinance, code, rule or
order known to Lessor and the remedies for such violation would not
have a material adverse effect on Lessor or the Properties.
7. REPRESENTATIONS AND WARRANTIES OF LESSEE. The
representations and warranties of Lessee contained in this Section are being
made to induce Lessor to enter into this Lease and Lessor has relied, and
will continue to rely, upon such representations and warranties. Lessee
represents and warrants to Lessor as of the Effective Date as follows:
A. ORGANIZATION, AUTHORITY AND STATUS OF LESSEE. (i)
Lessee has been duly organized or formed, is validly existing and in
good standing under the laws of its state of incorporation or
formation and is qualified to do business in each jurisdiction in
which any of the Properties are located. All necessary corporate
action has been taken to authorize the execution, delivery and
performance by Lessee of this Lease and of the other documents,
instruments and agreements provided for herein. Lessee is not a
"foreign corporation", "foreign partnership", "foreign trust",
"foreign limited liability company" or "foreign estate", as those
terms are defined in the Internal Revenue Code and the regulations
promulgated thereunder. Lessee's United States tax identification
number is correctly set forth on the signature page of this Lease.
(ii) The Person who has executed this Lease on behalf of
Lessee is duly authorized to do so.
B. ENFORCEABILITY. This Lease constitutes the legal,
valid and binding obligation of Lessee, enforceable against Lessee
in accordance with its terms, subject to general equitable principles
and to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws from time to time in effect affecting the
enforcement of creditors rights generally.
C. LITIGATION. There are no suits, actions,
proceedings or investigations pending, or, to the best of its
knowledge, threatened against or involving Lessee, Guarantor or any
of the Properties before any arbitrator or Governmental Authority,
including, without limitation, the Pending Actions, which might
reasonably result in any Material Adverse Effect.
D. ABSENCE OF BREACHES OR DEFAULTS. Neither Lessee nor
Guarantor is in default under any document, instrument or agreement
to which Lessee or Guarantor is a party or by which Lessee,
Guarantor, any of the Properties or any of Lessee's or Guarantor's
property is subject or bound, which default could reasonably be
expected to result in any Material Adverse Effect. The
authorization, execution, delivery and performance of this Lease and
the documents, instruments and agreements provided for herein will
not result in any breach of or default under any document, instrument
or agreement to which Lessee or Guarantor is a party or by which
Lessee, Guarantor, any of the Properties or any of Lessee's or
Guarantor's property is subject or bound, which breach or default
could reasonably be expected to result in any Material Adverse
Effect. The authorization, execution, delivery and performance of
this Lease and the documents, instruments and agreements provided for
14
herein will not violate any applicable law, statute, regulation,
rule, ordinance, code, rule or order, which violation could
reasonably be expected to result in any Material Adverse Effect.
E. LIABILITIES OF LESSOR. Lessee is not liable for any
indebtedness for money borrowed by Lessor and has not guaranteed any
of the debts or obligations of Lessor.
8. COVENANTS. Lessee covenants to Lessor for so long as this
Lease is in effect as follows:
A. AGGREGATE FIXED CHARGE COVERAGE RATIO. Lessee shall
maintain an Aggregate Fixed Charge Coverage Ratio at all of the FCCR
Properties in the aggregate of at least 1.25:1, calculated as of the
last day of each fiscal year of Lessee (each, a "Fiscal Year"). For
purposes of this Lease, the term "Aggregate Fixed Charge Coverage
Ratio" shall mean with respect to the twelve month period of time
ending on the date of calculation, the ratio calculated for such
period of time of (a) the sum of Net Income, Depreciation and
Amortization, Interest Expense and Operating Lease Expense, less a
corporate overhead allocation in an amount equal to 4% of Aggregate
Gross Sales, to (b) the sum of the Operating Lease Expense and the
Equipment Payment Amount.
For purposes of this Section 8, the following terms shall be
defined as set forth below:
"CAPITAL LEASE" shall mean any lease of any property
(whether real, personal or mixed) by Lessee with respect to
one or more of the FCCR Properties which lease would, in
conformity with GAAP, be required to be accounted for as a
capital lease on the balance sheet of Lessee. The term
"Capital Lease" shall not include any operating lease or
this Lease.
"DEBT" shall mean, as directly related to all of the
FCCR Properties and the period of determination, (i)
obligations of Lessee to pay debt service in respect of
indebtedness of Lessee for borrowed money, (ii) obligations
of Lessee evidenced by bonds, indentures, notes or similar
instruments, (iii) obligations of Lessee to pay the deferred
purchase price of property or services, (iv) obligations of
Lessee under leases which should be, in accordance with
GAAP, recorded as Capital Leases, and (v) obligations of
Lessee under direct or indirect guarantees in respect of,
and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) through (iv) above.
The term "Debt" shall not include Lessor's debt with respect
to the FCCR Properties or otherwise.
"DEPRECIATION AND AMORTIZATION" shall mean with
respect to all of the FCCR Properties the depreciation and
amortization accruing during any period of determination
with respect to Lessee as determined in accordance with
GAAP. The term "Depreciation and Amortization" shall not
include Lessor's depreciation and amortization with respect
to the FCCR Properties or otherwise.
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"EQUIPMENT PAYMENT AMOUNT" shall mean for any period
of determination the sum of all amounts payable during such
period of determination under all (i) leases entered into by
Lessee for Personalty located at one or more of the FCCR
Properties and (ii) all loans made to Lessee secured by
Lessee's interest in the Personalty located at one or more
of the FCCR Properties.
"INTEREST EXPENSE" shall mean for any period of
determination, the sum of all interest accrued or which
should be accrued in respect of all Debt of Lessee directly
attributable to one or more of the FCCR Properties and all
business operations thereon during such period (including
interest attributable to Capital Leases), as determined in
accordance with GAAP.
"NET INCOME" shall mean with respect to all of the
period of determination, the gross income of Lessee
allocable to all of the FCCR Properties less all operating
expenses allocable to all of the FCCR Properties. In
determining the amount of Net Income, (i) adjustments shall
be made for nonrecurring gains and losses allocable to the
period of determination, (ii) deductions shall be made for,
among other things, Depreciation and Amortization, Interest
Expense and Operating Lease Expense allocable to the period
of determination, (iii) charges for related entity services,
financings, xxxx-ups on purchases and other similar charges
which are of a nature historically accounted for in Lessee's
Store Income Statements shall be excluded, and (iv) no
deductions shall be made for (x) income taxes or charges
equivalent to income taxes allocable to the period of
determination, as determined in accordance with GAAP, or (y)
corporate overhead expense allocable to the period of
determination. All Net Sublease Rents received by Lessee
pursuant to subleases contemplated by Section 26 of this
Lease shall be included within "Net Income" for purposes of
the determination of the Aggregate Fixed Charge Coverage
Ratio.
"OPERATING LEASE EXPENSE" shall mean the lease
payments incurred by Lessee under any operating leases with
respect to one or more of the FCCR Properties (including
this Lease) and the business operations thereon during the
period of determination, as determined in accordance with
GAAP.
B. NONCONSOLIDATION COVENANTS. (i) Lessee will not
assume liability for any indebtedness for money borrowed by Lessor
and does not, and will not, guarantee any of the debts or obligations
of Lessor. Lessee will not hold itself out as being liable for any
obligations or indebtedness of Lessor.
(ii) Lessee shall not and shall use its best efforts to
cause its Affiliates not to hold Lessor out to the public or to any
individual creditors as being a unified entity with assets and
liabilities in common with Lessee.
(iii) Lessee shall conduct its business so as not to
mislead others as to the separate identity of Lessor, and
particularly will avoid the appearance of conducting business on
behalf of Lessor. Without limiting the generality of the foregoing,
no oral and written communications of Lessee, including, without
limitation, letters, invoices, purchase
16
orders, contracts, statements and loan applications, will be made in the name
of Lessor which to the extent that to do otherwise would materially bear upon
the maintenance of Lessor's separate identity.
(iv) Lessee will not act in Lessor's name.
(v) Where necessary and appropriate, Lessee shall
disclose the independent business status of Lessor to creditors of
Lessee, if any.
(vi) The resolutions, agreements and other instruments of
Lessee, if any, underlying the transactions described in this Lease
will be maintained by Lessee.
(vii) All transactions between Lessee and Lessor will be
no less fair to each party than they could obtain on an arm's-length
basis.
(viii) The books, records and accounts of Lessee shall at
all times be maintained in a manner permitting the assets and
liabilities of Lessor to be easily separated and readily ascertained
from those of Lessee.
(ix) Lessee will not direct, or otherwise control, the
ongoing business decisions of Lessor.
(x) Lessee will not file or cause to be filed a
voluntary or involuntary petition in bankruptcy on behalf of or
against Lessor.
C. TRANSFER, PARTICIPATION AND SECURITIZATION
COVENANTS. (i) Lessee agrees to cooperate in good faith with Lessor
and Lender in connection with any Transfer, Participation and/or
Securitization of any of the Notes, Mortgages and/or any of the Loan
Documents, or any or all servicing rights with respect thereto,
including, without limitation, (x) providing all current public
documents, financial and other data required to be filed with the
United States Securities and Exchange Commission with respect to
Lessee and the Store Income Statements (collectively, the
"Disclosures"); provided, however, Lessee shall not be required to
make Disclosures of any Confidential Information or any information
which has not previously been made public except as required by
applicable federal or state securities laws; and (y) amending the
terms of this Lease to the extent necessary so as to satisfy the
reasonable requirements of purchasers, transferees, assignees,
servicers, participants, investors or selected rating agencies
involved in any such Transfer, Participation or Securitization, so
long as such amendments would not materially and adversely affect the
economic terms of this Lease or Lessee. Lessor and Lender shall
prepare, at the expense of Lessor and Lender, all documents
evidencing such amendments, provided that Lessee shall be responsible
for the payment of its attorneys' fees incurred in connection with
reviewing and finalizing such documents.
(ii) Lessee consents to Lessor and Lender providing the
Disclosures, as well as any other information which Lessor and Lender
may now have or hereafter acquire with respect to the Properties or
the financial condition of Lessee to each purchaser, transferee,
assignee, servicer, participant, investor or rating agency involved
with respect to such Transfer, Participation and/or Securitization,
as applicable. Lessee, Lessor and Lender shall
17
pay their own attorneys' fees and other out-of-pocket expenses
incurred in connection with the performance of its obligations under
this Section 8.C.
D. COMPLIANCE CERTIFICATE. Within 90 days after the
end of each Fiscal Year, Lessee shall deliver to Lessor such
compliance certificates as Lessor may reasonably require in order to
establish that Lessee is in compliance in all material respects with
all of the obligations, duties and covenants imposed on Lessee
pursuant to this Lease.
9. RENTALS TO BE NET TO LESSOR. The Base Annual Rental payable
hereunder shall be net to Lessor, so that this Lease shall yield to Lessor
the rentals specified during the Lease Term, and that all costs, expenses and
obligations of every kind and nature whatsoever relating to the Properties
shall be performed and paid by Lessee.
10. TAXES AND ASSESSMENTS. Lessee shall pay, prior to the
earlier of delinquency or the accrual of interest on the unpaid balance, all
taxes and assessments of every type or nature assessed against, imposed upon
or arising with respect to Lessor (assuming that the Properties are the only
real property owned by Lessor and that Lessor is not engaged in any business
other than the ownership, leasing and financing of the Properties and any
other matters ancillary thereto), any of the Properties, this Lease, the
rental or other payments due under this Lease or Lessee during the Lease Term
which affect in any manner the net return realized by Lessor under this
Lease, including, without limitation, the following:
A. All taxes and assessments upon any of the Properties
or any part thereof and upon any Personalty, whether belonging to
Lessor or Lessee, or any tax or charge levied in lieu of such taxes
and assessments;
B. All taxes, charges, license fees and or similar fees
imposed by reason of the use of any of the Properties by Lessee; and
C. All excise, transaction, privilege, license, sales,
use and other taxes upon the rental or other payments due under this
Lease, the leasehold estate of either party or the activities of
either party pursuant to this Lease.
Notwithstanding the foregoing, but without limiting the preceding
obligation of Lessee to pay all taxes which are imposed on the rental or
other payments due under this Lease, in no event will Lessee be required to
pay any net income taxes or taxes in lieu of income taxes (i.e., taxes which
are determined taking into account deductions arising from depreciation,
interest, taxes and ordinary and necessary business expenses) or franchise
taxes (unless imposed in lieu of other taxes that would otherwise be the
obligation of Lessee under this Lease, including, without limitation, any
"gross receipts tax" or any similar tax based upon gross income or receipts
of Lessor which does not take into account deductions arising from
depreciation, interest, taxes and/or ordinary or necessary business expenses)
of Lessor, any transfer taxes of Lessor, or any tax imposed with respect to
the sale, exchange or other disposition by Lessor, in whole or in part, of
any of the Properties or Lessor's interest in this Lease (other than transfer
or recordation taxes imposed in connection with the transfer of any of the
Properties to Lessee, the substitution of a Substitute Property or the
termination of this Lease pursuant to the provisions of this Lease).
18
All taxing authorities shall be instructed to send all tax and
assessment invoices to Lessee and Lessee shall promptly provide Lessor and
Lender with copies of all tax and assessment invoices received by Lessee.
Upon request, Lessee shall also provide Lessor and Lender with evidence that
such invoices were paid in a timely fashion. Lessee may, at its own expense,
contest or cause to be contested (in the case of any item involving more than
$50,000.00, after prior written notice to Lessor), by appropriate legal
proceedings conducted in good faith and with due diligence, the amount or
validity or application, in whole or in part, of any item specified in this
Section 10 or any lien therefor, provided that (i) such proceeding shall
suspend the collection thereof from the applicable Properties or any interest
therein, (ii) neither such Properties nor any interest therein would be in
any danger of being sold, forfeited or lost by reason of such proceedings,
(iii) no Event of Default has occurred, and (iv) Lessee shall have deposited
with Lessor adequate reserves for the payment of the taxes, together with all
interest and penalties thereon, unless paid in full under protest, or Lessee
shall have furnished the security as may be required in the proceeding or as
may be reasonably required by Lessor to ensure payment of any contested
taxes. So long as an Event of Default shall not have occurred and be
continuing, any amount recovered as a result of retroactive tax contests with
respect to taxes or assessments payable during the Lease Term shall be paid
to Lessee. Lessor shall, at the request of Lessee, execute or join in the
execution of any instruments or documents reasonably requested by Lessee in
connection with any contest or proceeding contemplated by this Section 10,
but Lessee shall be solely responsible for the payment of all costs and
expenses incurred by Lessor or Lessee in connection with such contests and
proceedings.
11. UTILITIES. Lessee shall contract, in its own name, for and
pay when due all charges for the connection and use of water, gas,
electricity, telephone, garbage collection, sewer use and other utility
services supplied to the Properties during the Lease Term. Under no
circumstances shall Lessor be responsible for providing any utility service
to the Properties. Unless an Event of Default shall have occurred and be
continuing, Lessor will not take any action to interrupt the utility service
to the Properties.
12. INSURANCE. Throughout the Lease Term, Lessee shall maintain,
or cause a permitted sublessee as contemplated by Section 26 to maintain,
with respect to each of the Properties, at its sole expense, the following
types and amounts of insurance (which may be included under a blanket
insurance policy if all the other terms hereof are satisfied):
A. Insurance against loss, damage or destruction by
fire and other casualty, including theft, vandalism and malicious
mischief, flood (for each of the Properties which is in a location
designated by the Federal Emergency Management Administration as a
Special Flood Hazard Area), earthquake (for each of the Properties
which is in an area commonly subject to destructive earthquakes
within recorded history), boiler explosion (for each of the
Properties with a boiler), plate glass breakage, sprinkler damage
(for each of the Properties which has a sprinkler system), all
matters covered by a standard extended coverage endorsement, all
matters covered by a special coverage endorsement commonly known as
an "all-risk" endorsement and such other risks as Lessor may
reasonably require consistent with reasonably prudent business
practices for similar types of properties, insuring each of the
Properties for not less than 100% of their full insurable replacement
cost.
19
B. Commercial general liability and property damage
insurance, including a products liability clause, covering Lessor,
Remainderman and Lessee against bodily injury liability, property
damage liability and automobile bodily injury and property damage
liability, including without limitation any liability arising out of
the ownership, maintenance, repair, condition or operation of the
Properties or, to the extent covered by a customary commercial
general liability policy, adjoining ways, streets or sidewalks and,
if applicable, insurance covering Lessor, Remainderman and Lessee
against liability arising from the sale of liquor, beer or wine on
the Properties. Such insurance policy or policies shall contain a
broad form contractual liability endorsement under which the insurer
agrees to insure Lessee's obligations under Section 19 hereof to the
extent insurable, and a "severability of interest" clause or
endorsement which precludes the insurer from denying the claim of
Lessee, Remainderman or Lessor because of the negligence or other
acts of the other, shall be in amounts of not less than $1,000,000.00
per injury and occurrence with respect to any insured liability,
whether for personal injury or property damage, or such higher limits
as Lessor or Remainderman may reasonably request from time to time,
and shall be of form and substance satisfactory to Lessor and
Remainderman.
C. Business income interruption insurance or rental
interruption insurance, when applicable, as requested by Lessor,
equal to 100% of the Base Annual Rental for a period of not less than
12 months.
D. State worker's compensation insurance, or self
insurance where permitted by applicable law, in the statutorily
mandated limits, employer's liability insurance with limits not less
than $500,000 or such greater amount as Lessor or Remainderman may
from time to time reasonably require and such other insurance as may
be necessary to comply with applicable laws.
E. Such other insurance as may from time to time be
reasonably required by Lessor, Remainderman or Lender consistent with
prudent business practices for similar types of properties in order
to protect their respective interests with respect to the Properties.
All insurance policies shall:
(i) Provide for a waiver of subrogation by the
insurer as to claims against Lessor, Remainderman, Lender
and their respective employees and agents;
(ii) Provide that any "no other insurance"
clause in the insurance policy shall exclude any policies of
insurance maintained by Lessor, Remainderman or Lender and
that the insurance policy shall not be brought into
contribution with insurance maintained by Lessor,
Remainderman or Lender;
(iii) Contain a standard without contribution
mortgage clause endorsement in favor of Lender and naming
such other parties as additional named insureds as may be
designated by Lessor provided such parties have either a
direct or indirect ownership interest in the Properties or
Lessor, or are managers, asset managers, agents or
independent contractors of Lessor or any entity or person
which has an ownership interest in Lessor;
20
(iv) Provide that the policy of insurance shall
not be terminated, cancelled or substantially modified
without at least thirty (30) days' prior written notice to
Lessor, Remainderman, Lender and to any other party covered
by any standard mortgage clause endorsement;
(v) Provide that the insurer shall not have the
option to restore the applicable Properties if Lessor or
Lessee elects to terminate this Lease in accordance with the
terms hereof;
(vi) Be issued by insurance companies licensed
to do business in the states in which the Properties are
located and which are rated A:VI or better by A.M. Best's
Insurance Guide or are otherwise reasonably approved by
Lessor and Remainderman; and
(vii) Provide that the insurer shall not deny a
claim nor shall the insurance be cancelled, invalidated or
suspended by (1) any action, inaction, conduct or negligence
of Lessor, Remainderman, Lender or any other party covered
by any standard mortgage clause endorsement, Lessee, anyone
acting for Lessee or any subtenant or other occupant of any
of the Properties, (2) occupancy or use of any of the
Properties for purposes more hazardous than permitted by
such policies, (3) any foreclosure or other proceedings
relating to any of the Properties or change in title to or
ownership of any of the Properties, or (4) any breach or
violation by Lessee or any other person of any warranties,
declarations or conditions contained in such policies or the
applications for such policies.
It is expressly understood and agreed that the foregoing minimum
limits of insurance coverage shall not limit the liability of Lessee for its
acts or omissions as provided in this Lease. All insurance policies (with
the exception of worker's compensation insurance to the extent not available
under statutory law), shall designate Lessor, Remainderman and Lender as
additional named insureds as their interests may appear and shall be payable
as set forth in Section 21 hereof. All such policies shall be written as
primary policies, with deductibles not to exceed 10% of the amount of
coverage; provided, however, (i) Lessee shall be permitted to maintain
deductibles on replacement value property insurance in an amount not to
exceed $100,000.00 per Property, and (ii) at all times while Guarantor
maintains a net worth determined in accordance with GAAP of at least
$280,000,000.00 and Guarantor has a solicited long term debt rating (or, if
Guarantor does not have a solicited long term debt rating, a corporate
rating) of (a) BB or better by Standard & Poors Rating Group, or any
successor thereto, or (b) ba2 or better by Xxxxx'x Investors Service, Inc.,
Lessee may self-insure or maintain deductibles on general liability insurance
in an amount not to exceed $250,000.00 per occurrence per Property. Any
other policies, including any policy now or hereafter carried by Lessor,
Remainderman or Lender, shall serve as excess coverage. Lessee shall procure
policies for all insurance for periods of not less than one year and shall
provide to Lessor, Remainderman and Lender certificates of insurance or, upon
the request of Lessor, Remainderman or Lender, duplicate originals of
insurance policies evidencing that insurance satisfying the requirements of
this Lease is in effect at all times. If Lessee in good faith desires to
change its insurance carrier or, not more often than once in any Lease Year,
change to a policy year ending on a different calendar date, Lessor will not
unreasonably withhold its consent to Lessee maintaining the preceding
insurance policies for a period of less than one year solely as a result of
21
the transition of such insurance policies to the replacement carrier or the
revised ending date. Lessor further agrees that, to the extent it has
requested and received duplicate originals of the insurance policies required
by this Lease, Lessee shall not be required to subsequently provide duplicate
originals of such insurance policies unless any of the coverages provided in
any such policies change or the carrier of any such policy changes, in which
event Lessee shall only be required to provide (without limiting Lessee's
obligation to deliver certificates of insurance as contemplated by this
Section), upon the request of Lessor, duplicate originals of those portions
of the policies which have changed and/or those policies for which the
carrier has changed. In the event of any transfer by Lessor of Lessor's
interest in any of the Properties or any financing or refinancing of Lessor's
interest in any of the Properties, or by Remainderman of Remainderman's
interest in any of the Properties, Lessee shall, upon not less than ten (10)
Business Days prior written notice, deliver to Lessor and Remainderman or any
Lender providing such financing or refinancing, as applicable, certificates
of all insurance required to be maintained by Lessee hereunder naming such
transferee or such Lender, as applicable, as an additional named insured to
the extent required herein effective as of the date of such transfer,
financing or refinancing.
13. TAX AND INSURANCE IMPOUND. Upon the occurrence of an Event
of Default resulting from the failure of Lessee to perform any monetary
obligation due under this Lease, including, without limitation, the failure
to pay Base Annual Rental, Additional Rental and/or taxes, assessments and/or
insurance premiums as contemplated by this Lease, Lessor may require Lessee
to pay to Lessor sums which will provide an impound account (which shall not
be deemed a trust fund) for paying up to the next one year of taxes,
assessments and/or insurance premiums for each of the Properties. Upon such
requirement, Lessor will estimate the amounts needed for such purposes and
will notify Lessee to pay the same to Lessor in equal monthly installments,
as nearly as practicable, in addition to all other sums due under this Lease.
Should additional funds be required at any time, Lessee shall pay the same to
Lessor on demand. Lessee shall advise Lessor of all taxes and insurance
bills which are due and shall cooperate fully with Lessor in assuring that
the same are paid timely. Lessor may deposit all impounded funds in accounts
insured by any federal or state agency. Interest or other gains from such
funds, if any, shall, so long as no Event of Default shall have occurred and
be continuing, be the sole property of Lessee. Interest or other gains from
such funds, if any, shall, if, subsequent to Lessor requiring Lessee to
establish such impound account, an Event of Default shall have occurred and
be continuing, be the sole property of Lessor. Upon the occurrence and
during the continuance of an Event of Default, Lessor may apply all impounded
funds against any sums due from Lessee to Lessor. Lessor shall give to
Lessee an annual accounting showing all credits and debits to and from such
impounded funds received from Lessee. Nothing in this Section 13 shall be
interpreted as a waiver by Lessor of any rights Lessor may have under this
Lease upon the occurrence and during the continuance of an Event of Default.
14. PAYMENT OF RENTAL AND OTHER SUMS. All rental and other sums
which Lessee is required to pay hereunder shall be the unconditional
obligation of Lessee and shall be payable in full when due without any
setoff, abatement, deferment, deduction or counterclaim whatsoever. Upon
execution of this Lease, Lessee shall establish arrangements whereby payments
of the Base Monthly Rental and impound payments, if any, are transferred by
wire or other means directly from Lessee's bank account to such account as
Lessor may designate. Any delinquent payment
22
(that is, any payment not made within five Business Days after the date when
due) shall, in addition to any other remedy of Lessor, incur a late charge of
5% (which late charge is intended to compensate Lessor for the cost of
handling and processing such delinquent payment and should not be considered
interest) and bear interest at the Default Rate, such interest to be computed
from and including the date such payment was due through and including the
date of the payment; provided, however, in no event shall Lessee be obligated
to pay late charges and interest in amounts that exceed the limitations
imposed by applicable law then in effect.
15. USE. Except as set forth below, each of the Properties shall
be used solely for the operation of a Permitted Facility in accordance with
the standards of operations then in effect on a system-wide basis, and for no
other purpose. Lessee shall promptly notify Lessor of a change of use of any
of the Properties from any restaurant concept included within the definition
of Permitted Facility to another restaurant concept included within the
definition of Permitted Facility. Lessee shall occupy the Properties
promptly following the Effective Date and, except as set forth below and
except during periods when any of the Properties is untenantable by reason of
Casualty or Taking (provided, however, during all such periods while any of
the Properties is untenantable, Lessee shall strictly comply with the terms
and conditions of Section 21 of this Lease), Lessee shall at all times during
the Lease Term occupy each of the Properties and shall diligently conduct its
business on each of the Properties as a Permitted Facility. Lessee may cease
diligent operation of business at any of the Properties for a period not to
exceed 180 days; provided, however, Lessee may not cease diligent operation
at more than four of the Properties at any one time and Lessee may only cease
operation once with respect to each Property within any five-year period
during the Lease Term. Notwithstanding the foregoing, so long as an Event of
Default has not otherwise occurred and is continuing under this Lease, up to
two of the Properties then subject to this Lease may be closed for an
indefinite period of time without such closure constituting an Event of
Default under this Lease. If Lessee does discontinue operation as permitted
by this Section 15, Lessee shall (i) give written notice to Lessor within 10
Business Days after Lessee elects to cease operation, (ii) provide adequate
protection and maintenance of any such Properties during any period of
vacancy, (iii) comply with all Applicable Regulations and otherwise comply
with the terms and conditions of this Lease other than the continuous use
covenant set forth in this Section 15, and (iv) pay all costs necessary to
restore such Properties to their condition on the day operation of the
business ceased at such time as such Properties are reopened for Lessee's
business operations or other substituted use approved by Lessor as
contemplated below. Notwithstanding anything herein to the contrary, Lessee
shall pay the Base Monthly Rental as provided herein during any period in
which Lessee discontinues operation.
Lessee shall not, by itself or through any assignment, sublease or
other type of transfer, convert any of the Properties to a use other than a
Permitted Facility during the Lease Term without Lessor's consent, which
consent shall not be unreasonably withheld or delayed. Lessor may consider
any or all of the following in determining whether to grant its consent,
without being deemed to be unreasonable: (i) whether the rental paid to
Lessor would be equal to or greater than the anticipated rental assuming
continued existing use, (ii) whether the converted use will be consistent
with the highest and best use of the Properties, and (iii) whether the
converted use will increase Lessor's risks or decrease the value of the
Properties.
23
16. COMPLIANCE WITH LAWS, RESTRICTIONS, COVENANTS AND
ENCUMBRANCES. A. Lessee's use and occupation of each of the Properties, and
the condition thereof, shall, at Lessee's sole cost and expense, comply fully
with all Applicable Regulations and all restrictions, covenants and
encumbrances of record applicable to such Property. In addition to the other
requirements of this Section 16, Lessee shall, at all times throughout the
Lease Term, comply with all Applicable Regulations, including, without
limitation, in connection with any maintenance, repairs and replacements of
the Properties undertaken by Lessee as required by Section 17 of this Lease.
B. Lessee will use its reasonable best efforts to not permit any
act or condition to exist on or about any of the Properties (excluding acts
committed by third parties not within the control of Lessee) which will
increase any insurance rate thereon, except when such acts are required in
the normal course of its business and Lessee shall pay for such increase.
C. Without limiting the generality of the other provisions of
this Section 16, Lessee agrees that it shall be responsible for complying in
all applicable respects with the Americans with Disabilities Act of 1990, as
such act may be amended from time to time, and all regulations promulgated
thereunder (collectively, the "ADA"), as it affects the Properties,
including, without limitation, making required "readily achievable" changes
to remove any architectural or communications barriers, and providing
auxiliary aides and services within the Properties. Lessee further agrees
that any and all alterations made to the Properties during the Lease Term
will comply with the applicable requirements of the ADA. All plans for
alterations which must be submitted to Lessor under the provisions of Section
18 must include a statement from a licensed architect or engineer certifying
that he or she has reviewed the plans, and that the plans comply with all
applicable provisions of the ADA. Any subsequent approval or consent to the
plans by Lessor shall not be deemed to be a representation of Lessor's part
that the plans comply with the ADA, which obligation shall remain with
Lessee. Lessee agrees that it will defend, indemnify and hold harmless the
Indemnified Parties from and against any and all Losses caused by, incurred
or resulting from Lessee's failure to comply with its obligations under this
Section 16.C.
D. Lessee represents and warrants to Lessor as of the Effective
Date, to Lessee's knowledge and except as disclosed in the Questionnaires:
(i) None of the Properties nor Lessee, in connection
with its occupancy, use or operation of the Properties, are in
violation of any Environmental Laws except for such noncompliance
which could not reasonably be expected to have a Material Adverse
Effect, or subject to any pending or threatened investigation or
inquiry by any Governmental Authority or to any remedial obligations
under any Environmental Laws that could reasonably be expected to
have a Material Adverse Effect.
(ii) All permits, licenses or similar authorizations to
construct, occupy, operate or use any buildings, improvements,
fixtures and equipment forming a part of any of the Properties
required to be obtained by reason of any Environmental Laws have been
obtained, except for such permits, licenses or authorizations the
failure of which to obtain could not reasonably be expected to have
a Material Adverse Effect.
24
(iii) Except in De Minimis Amounts, no Hazardous Materials
have been used, handled, manufactured, generated, produced, stored,
treated, processed, transferred, disposed of or otherwise Released
in, on, under, from or about any of the Properties, which have not
been properly remediated in accordance with all applicable
Environmental Laws, or which could not reasonably be expected to have
a Material Adverse Effect.
(iv) The Properties do not contain Hazardous Materials,
other than in De Minimis Amounts, or underground storage tanks.
(v) There is no past or present non-compliance with
Environmental Laws, or with permits issued pursuant thereto, in
connection with any of the Properties, except for such non-compliance
which could not reasonably be expected to have a Material Adverse
Effect.
(vi) Lessee has not received any written notice or other
communication from any Person (including but not limited to a
Governmental Authority) relating to Hazardous Materials or
Remediation thereof, of possible liability of any Person pursuant to
any Environmental Law, other Environmental Conditions in connection
with any of the Properties, or any actual or potential administrative
or judicial proceedings in connection with any of the foregoing, in
each case with respect to a condition or event that could reasonably
be expected to have a Material Adverse Effect.
(vii) Lessee has truthfully and fully provided to Lessor,
in writing, any and all information relating to Environmental
Conditions in, on, under or from the Properties that is known to
Lessee and that is contained in Lessee's files and records, including
but not limited to any environmental investigations relating to
Hazardous Materials in, on, under or from any of the Properties.
(viii) All uses and operations on or of the Properties,
whether by Lessee or any other Person, have been in compliance with
all Environmental Laws and permits issued pursuant thereto, except
for such non-compliance which could not reasonably be expected to
have a Material Adverse Effect; and the Properties have been kept
free and clear of all liens and other encumbrances imposed pursuant
to any Environmental Law (the "Environmental Liens").
E. Lessee covenants to Lessor during the Lease Term that: (i)
the Properties shall not be in violation of or subject to any investigation
or inquiry by any Governmental Authority or to any remedial obligations under
any Environmental Laws except for such violations or investigations or
inquiries which relate to Hazardous Materials in De Minimis Amounts, and if
any such investigation or inquiry is initiated, Lessee shall promptly notify
Lessor; (ii) all uses and operations on or of each of the Properties, whether
by Lessee or any other Person, shall be in compliance with all applicable
Environmental Laws and permits issued pursuant thereto, except for such
noncompliance which relates to Hazardous Materials in De Minimis Amounts;
(iii) there shall be no Releases in, on, under or from any of the Properties,
except in De Minimis Amounts; (iv) there shall be no Hazardous Materials in,
on, or under any of the Properties, except in De Minimis Amounts; (v) Lessee
shall keep each of the Properties free and clear of all Environmental Liens,
whether due to any act or omission of Lessee or any other Person; (vi) Lessee
shall, at its sole cost
25
and expense, fully and expeditiously cooperate in all activities pursuant to
subsection F below, including but not limited to providing all relevant
information and making knowledgeable persons within the control of Lessee
available for interviews; (vii) in the event of any alleged or known Release,
Lessee shall, at its sole cost and expense, perform any environmental site
assessment or other investigation of Environmental Conditions in connection
with any of the Properties as may be reasonably requested by Lessor
(including but not limited to sampling, testing and analysis of soil, water,
air, building materials and other materials and substances whether solid,
liquid or gas), and share with Lessor the reports and other results thereof,
and Lessor and the other Indemnified Parties shall be entitled to rely on
such reports and other results thereof; (viii) Lessee shall, at its sole cost
and expense, comply with all reasonable written requests of Lessor to (1)
reasonably effectuate Remediation of any condition (including but not limited
to a Release) in, on, under or from any of the Properties; (2) comply with
any Environmental Law; (3) comply with any applicable directive from any
Governmental Authority, or engage in appropriate alternative remedial
activities if approved by such Governmental Authority; and (4) take any other
reasonable action necessary or appropriate for protection of human health or
the environment on the Properties; (ix) Lessee shall, upon obtaining such
information, promptly notify Lessor in writing of (A) any Releases or
Threatened Releases in, on, under, from or migrating towards any of the
Properties which could reasonably be expected to involve Hazardous Materials
other than in De Minimis Amounts; (B) any non-compliance with any
Environmental Laws related in any way to any of the Properties, which non-
compliance could reasonably be expected to involve Hazardous Materials other
than in De Minimis Amounts; (C) any actual or potential Environmental Lien;
(D) any required or proposed Remediation of Environmental Conditions relating
to any of the Properties; and (E) any written or oral notice or other
communication of which Lessee becomes aware from any source whatsoever
(including but not limited to a Governmental Authority) relating in any way
to Hazardous Materials or Remediation thereof which could reasonably be
expected to involve Hazardous Materials other than in De Minimis Amounts,
possible liability of any Person pursuant to any Environmental Law, other
Environmental Conditions in connection with any of the Properties, or any
actual or potential administrative or judicial proceedings in connection with
anything referred to in this Section.
X. Xxxxxx, Lender and any other Person designated by Lessor,
including but not limited to any receiver, any representative of a
Governmental Authority, and any environmental consultant, shall, after five
Business Days' prior written notice to Lessee (except that in the event of an
emergency no such prior notice shall be required), have the right, but not
the obligation, to enter upon the Properties at all reasonable times
(including, without limitation, in connection with any Securitization,
Participation or Transfer or in connection with a proposed sale or conveyance
of any of the Properties or a proposed financing or refinancing secured by
any of the Properties or in connection with the exercise of any remedies set
forth in this Lease, the Mortgages or the other Loan Documents, as
applicable) to assess any and all aspects of the environmental condition of
the Properties and their use, including but not limited to conducting any
environmental assessment or audit (the scope of which shall be determined in
the sole and absolute discretion of the party conducting the assessment) and
taking samples of soil, groundwater or other water, air, or building
materials, and conducting other invasive testing; provided, however, that any
such persons (except in emergencies) shall use reasonable efforts to
undertake any such assessments or investigations so as to minimize the impact
on Lessee's business operations at the Properties. Lessee shall cooperate
with and provide access to Lessor, Lender and any other Person designated by
Lessor. Any such assessment and investigation shall be at Lessor's sole cost
and expense unless at the time of any such assessment or investigation
26
Lessor has a reasonable basis for believing that a Release has occurred on a
Property or an Event of Default has occurred and is continuing, in which case
Lessee shall be responsible for the cost of any such assessment or
investigation. Unless an Event of Default shall have occurred and be
continuing, upon completion of any assessments or testing pursuant to this
Section 16.F (i) the Properties shall be restored to their condition at the
time of commencement of testing, including, without limitation, the repair of
any damage to the Properties as a result of such testing and (ii) Lessor
shall indemnify, defend and hold Lessee harmless from and against any costs
(including, without limitation, reasonable attorneys' fees and expenses),
claims, loss or damages resulting from any assessments or testing pursuant to
this Section 16.F (excluding claims, losses or damages suffered by Lessee as
a result of Lessee's gross negligence or willful misconduct).
G. Lessee shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless each of the Indemnified Parties for,
from and against any and all Losses (excluding Losses for which Lessor has
agreed to indemnify, defend and hold harmless Lessee pursuant to Sections
16.F and 22 and Losses suffered by an Indemnified Party directly arising out
of such Indemnified Party's gross negligence or willful misconduct; provided,
however, that the term "gross negligence" shall not include gross negligence
imputed as a matter of law to any of the Indemnified Parties solely by reason
of Lessor's interest in any of the Properties or Lessor's failure to act in
respect of matters which are or were the obligation of Lessee under this
Lease) and costs of Remediation (whether or not performed voluntarily),
engineers' fees, environmental consultants' fees, and costs of investigation
(including but not limited to sampling, testing, and analysis of soil, water,
air, building materials and other materials and substances whether solid,
liquid or gas) imposed upon or incurred by or asserted against any
Indemnified Parties, and directly or indirectly arising out of or in any way
relating to any one or more of the following: (i) any presence of any
Hazardous Materials in, on, above, or under any of the Properties; (ii) any
past or present Release or Threatened Release in, on, above, under or from
any of the Properties; (iii) any activity by Lessee, any Affiliate of Lessee
or any other tenant or other user of any of the Properties in connection with
any actual, proposed or threatened use, treatment, storage, holding,
existence, disposition or other Release, generation, production,
manufacturing, processing, refining, control, management, abatement, removal,
handling, transfer or transportation to or from any of the Properties of any
Hazardous Materials at any time located in, under, on or above any of the
Properties; (iv) any activity by Lessee, any Affiliate of Lessee or any other
tenant or other user of any of the Properties in connection with any actual
or proposed Remediation of any Hazardous Materials at any time located in,
under, on or above any of the Properties, whether or not such Remediation is
voluntary or pursuant to court or administrative order, including but not
limited to any removal, remedial or corrective action; (v) any past, present
or threatened non-compliance or violations of any Environmental Laws (or
permits issued pursuant to any Environmental Law) in connection with any of
the Properties or operations thereon, including but not limited to any
failure by Lessee, any Affiliate of Lessee or any other tenant or other user
of any of the Properties to comply with any order of any Governmental
Authority in connection with any Environmental Laws; (vi) the imposition,
recording or filing or the threatened imposition, recording or filing of any
Environmental Lien encumbering any of the Properties; (vii) any
administrative processes or proceedings or judicial proceedings in any way
connected with any matter addressed in this Section; (viii) any past, present
or threatened injury to, destruction of or loss of natural resources in
violation of Environmental Laws in any way connected with any of the
Properties, including but not limited to costs to investigate and assess such
injury, destruction or loss; (ix) any acts of Lessee, any Affiliate of Lessee
or any other tenant or user of any of the Properties in arranging for
disposal or
27
treatment, or arranging with a transporter for transport for disposal or
treatment, of Hazardous Materials owned or possessed by Lessee, any Affiliate
of Lessee or any other tenant or user of any of the Properties, at any
facility or incineration vessel owned or operated by another Person and
containing such or similar Hazardous Materials; (x) any acts of Lessee, any
Affiliate of Lessee or any other tenant or user of any of the Properties, in
accepting any Hazardous Materials for transport to disposal or treatment
facilities, incineration vessels or sites selected by Lessee, any Affiliate
of Lessee or any other tenant or user of any of the Properties, from which
there is a Release, or a Threatened Release of any Hazardous Materials which
causes the incurrence of costs for Remediation; (xi) any personal injury,
wrongful death, or property damage arising under any statutory or common law
or tort law theory, including but not limited to damages assessed for the
maintenance of a private or public nuisance or for the conducting of an
abnormally dangerous activity, on or near any of the Properties; and (xii)
any misrepresentation or inaccuracy in any representation or warranty or
material breach or failure to perform any covenants or other obligations
pursuant to this Section.
H. The obligations of Lessee and the rights and remedies of
Indemnified Parties under Sections 16.D through 16.G shall survive the
termination, expiration and/or release of this Lease.
17. CONDITION OF PROPERTIES; MAINTENANCE. Lessee, at its own
expense, will maintain all parts of each of the Properties in good repair and
sound condition, except for ordinary wear and tear and any Casualties and
Takings (but without limiting Lessee's obligations under the terms and
conditions of Section 21 of this Lease with respect to Casualties and
Takings), and will take all action and will make all structural and non-
structural, foreseen and unforeseen and ordinary and extraordinary changes
and repairs or replacements which may be required to keep all parts of each
of the Properties in good repair and sound condition. Lessee waives any
right to (i) require Lessor to maintain, repair or rebuild all or any part of
any of the Properties or (ii) make repairs at the expense of Lessor, pursuant
to any Applicable Regulations at any time in effect.
18. WASTE; ALTERATIONS AND IMPROVEMENTS. Lessee shall not commit
actual or constructive waste upon any of the Properties. Lessee shall not
alter the exterior, structural, plumbing or electrical elements of any of the
Properties in any manner without the consent of Lessor, which consent shall
not be unreasonably withheld or conditioned (it being understood and agreed
that to the extent Lessor is required to obtain the approval of Lender with
respect to any such alterations, Lessor shall in no event be deemed to have
unreasonably withheld Lessor's approval thereof if Lender shall not have
given its approval if required); provided, however, Lessee may undertake
nonstructural alterations to any of the Properties costing less than
$100,000.00 without Lessor's consent. If Lessor's consent is required
hereunder and Lessor consents to the making of any such alterations, the same
shall be made according to plans and specifications approved by Lessor and
subject to such other conditions as Lessor shall reasonably require. All
alterations shall be made by Lessee at Lessee's sole expense by licensed
contractors and in accordance with all applicable laws governing such
alterations. Any work at any time commenced by Lessee on any of the
Properties shall be prosecuted diligently to completion, shall be of good
workmanship and materials and shall comply fully with all the terms of this
Lease. Upon completion of any alterations, at Lessor's request Lessee shall
promptly provide
28
Lessor with (i) evidence of full payment to all laborers and materialmen
contributing to the alterations, (ii) to the extent Lessee was required to
prepare plans and specifications for such alterations, an architect's
certificate certifying the alterations to have been completed in conformity
with the plans and specifications, (iii) a certificate of occupancy (if the
alterations are of such a nature as would require the issuance of a
certificate of occupancy), and (iv) any other documents or information
reasonably requested by Lessor. Any addition to or alteration of any of the
Properties shall automatically be deemed a part of the Properties and belong
to Lessor, and Lessee shall execute and deliver to Lessor such instruments as
Lessor may require to evidence the ownership by Lessor of such addition or
alteration. Lessee shall execute and file or record, as appropriate, a
"Notice of Non-Responsibility," or any equivalent notice permitted under
applicable law in the states where the applicable Properties are located.
19. INDEMNIFICATION. Lessee shall indemnify, protect, defend and
hold harmless each of the Indemnified Parties from and against any and all
Losses (excluding losses for which Lessor has agreed to indemnify, defend and
hold Lessee harmless pursuant to Section 22, and Losses suffered by an
Indemnified Party arising out of the gross negligence or willful misconduct
of such Indemnified Party; provided, however, that the term "gross
negligence" shall not include gross negligence imputed as a matter of law to
any of the Indemnified Parties solely by reason of the Lessor's interest in
any of the Properties or Lessor's failure to act in respect of matters which
are or were the obligation of Lessee under this Lease) caused by, incurred or
resulting from Lessee's operations of or relating in any manner to any of the
Properties, whether relating to their original design or construction, latent
defects, alteration, maintenance, use by Lessee or any person thereon,
supervision or otherwise, or from any breach of, default under, or failure to
perform, any term or provision of this Lease by Lessee, its officers,
employees, agents or other persons, or to which any Indemnified Party is
subject because of Lessor's or Remainderman's interest in any of the
Properties, including, without limitation, Losses arising from (1) any
accident, injury to or death of any person or loss of or damage to property
occurring in, on or about any of the Properties or portion thereof or on the
adjoining sidewalks, curbs, parking areas, streets or ways, (2) any use, non-
use or condition in, on or about, or possession, alteration, repair,
operation, maintenance or management of, any of the Properties or any portion
thereof or on the adjoining sidewalks, curbs, parking areas, streets or ways,
(3) any representation or warranty made herein by Lessee or in any
certificate delivered in connection with this Lease being false or misleading
in any material respect as of the date of such representation or warranty was
made, (4) performance of any labor or services or the furnishing of any
materials or other property in respect to any of the Properties or any
portion thereof, (5) any taxes, assessments or other charges which Lessee is
required to pay under Section 10, (6) any lien, encumbrance or claim arising
on or against any of the Properties or any portion thereof under any
Applicable Regulation or otherwise which Lessee is obligated hereunder to
remove and discharge, or the failure to comply with any Applicable
Regulation, (7) the claims of any invitees, patrons, licensees or subtenants
of all or any portion of any of the Properties or any Person acting through
or under Lessee or otherwise acting under or as a consequence of this Lease
or any sublease, (8) any act or omission of Lessee or its agents,
contractors, licensees, subtenants or invitees pertaining to this Lease, (9)
any contest referred to in Section 10, and (10) the sale of liquor, beer or
wine on any of the Properties. It is expressly understood and agreed that
Lessee's obligations under this Section shall survive the expiration or
earlier termination of this Lease for any reason.
29
20. QUIET ENJOYMENT. So long as Lessee shall pay the rental and
other sums herein provided and no Event of Default shall have occurred and be
continuing, Lessee shall have, subject and subordinate to Lessor's rights
herein, the right to the peaceful and quiet occupancy of the Properties.
Notwithstanding the foregoing, however, in no event shall Lessee be entitled
to bring any action against Lessor to enforce its rights under this Lease if
an Event of Default shall have occurred and be continuing.
21. CONDEMNATION OR DESTRUCTION.
A. NOTICE OF TAKING OR CASUALTY. In the event of a taking of
all or any part of any of the Properties for any public or quasi-public
purpose by any lawful power or authority by exercise of the right of
condemnation or eminent domain or by agreement between Lessor, Lessee and
those authorized to exercise such right ("Taking") or the commencement of any
proceedings or negotiations which might result in a Taking or any damage to
or destruction of any of the Properties or any part thereof as a result of a
fire or other casualty (a "Casualty"), Lessee will promptly give written
notice thereof to Lessor, generally describing the nature and extent of such
Taking, proceedings, negotiations or Casualty and including copies of any
documents or notices received in connection therewith. Thereafter, Lessee
shall promptly send Lessor copies of all correspondence and pleadings
relating to any such Taking, proceedings, negotiations or Casualty.
B. ASSIGNMENT OF AWARDS, INSURANCE PROCEEDS AND PAYMENTS.
Except as set forth below, in the event of (i) a Material Taking or (ii) a
Material Casualty, Lessor shall be entitled to receive the entire award,
insurance proceeds or payment in connection therewith without deduction for
any estate vested in Lessee by this Lease. Lessee hereby expressly assigns
to Lessor all of its right, title and interest in and to every such award,
insurance proceeds or payment and agrees that Lessee shall not be entitled to
any award, insurance proceeds or payment for the value of Lessee's leasehold
interest in this Lease. With respect to a Material Taking, Lessee shall be
entitled to claim and receive any award or payment from the condemning
authority expressly granted for the taking of Personalty, the interruption of
its business and moving expenses, but only if such claim or award does not
adversely affect or interfere with the prosecution of Lessor's claim for the
Material Taking or otherwise reduce the amount recoverable by Lessor for the
Material Taking. With respect to a Material Casualty, Lessee shall be
entitled to claim and receive any insurance proceeds with respect to the
Personalty, the interruption of its business and moving expenses, but only if
such claim or proceeds does not adversely affect or interfere with the
prosecution of Lessor's claim for the Material Casualty or otherwise reduce
the amount recoverable by Lessor for the Material Casualty.
C. MATERIAL CASUALTY. Within 60 days of a Material Casualty
at any Property, Lessee shall have the option, but not the obligation, to
either:
(i) deliver a rejectable offer to Lessor (a "Casualty
Substitution Offer") to substitute a Substitute Property for the
affected Property pursuant to the terms and conditions of Section 55
of this Lease; or
(ii) make a payment (a "Casualty Termination Payment") to
Lessor to terminate this Lease with respect to the affected Property
in an amount equal to the sum
30
of (x) the Applicable Percentage for the affected Property multiplied
by the aggregate Base Annual Rental and Additional Rental for the
remaining Initial Term, and (y) the Prepayment Charge corresponding
to the affected Property. All Casualty Termination Payments shall
be made on a regularly scheduled Base Monthly Rental payment date
upon no less than 30 days prior written notice from Lessee to Lessor.
Lessor shall have 120 days from the delivery of a Casualty
Substitution Offer satisfying the requirements of Section 55 to accept or
reject that offer in its sole discretion. Lessor's failure to deliver notice
of acceptance or rejection of the offer within such time period shall be
deemed to constitute Lessor's acceptance of that Casualty Substitution Offer.
If the Mortgage corresponding to the affected Property is still outstanding,
any rejection of the Casualty Substitution Offer by Lessor shall not be
effective unless it is consented to in writing by Lender and such written
consent is delivered to Lessee within that 120-day period (Lender shall be
deemed to have objected to Lessor's rejection of such Casualty Substitution
Offer if Lender does not consent to or object to Lessor's rejection of such
Casualty Substitution Offer within such 120-day period).
D. ACCEPTANCE OR REJECTION OF CASUALTY OFFER. If Lessor accepts
the Casualty Substitution Offer or is deemed to have accepted the Casualty
Substitution Offer or if any rejection of the Casualty Substitution Offer by
Lessor is not consented to in writing by Lender as provided in this Section
21, then, within 180 days of that Material Casualty, Lessee shall complete
the substitution, subject, however, to the satisfaction of each of the
applicable terms and conditions set forth in this Section 21 and Section 55.
Upon such substitution (i) Lessee shall be entitled to claim and receive the
net award resulting from the Material Casualty, after payment of all costs
and expenses incurred by Lessor and Lender in connection with that Material
Casualty, and (ii) all obligations of either party under this Lease and
otherwise with respect to the Property being replaced shall cease as of the
closing of the substitution; provided, however, Lessee's obligations to the
Indemnified Parties under any indemnification provisions of this Lease with
respect to the affected Property (including, without limitation, Sections 16
and 19) and Lessee's obligations to pay any sums (whether payable to Lessor
or a third party) accruing under this Lease with respect to the affected
Property prior to the closing of the substitution shall survive the
termination of this Lease with respect to that Property. This Lease shall,
however, continue in full force and effect with respect to all other
Properties.
If Lessor rejects the Casualty Substitution Offer and, as long as the
Mortgage corresponding to the Property subject to the Casualty Substitution
Offer is still outstanding, such rejection is consented to by Lender as
provided in Section 21, or if the Material Casualty shall occur after the
commencement of any extension options exercised pursuant to Section 27, then
(i) the net award resulting from that Material Casualty shall be paid to and
belong to Lessor, (ii) on the next scheduled Base Monthly Rental payment
date, Lessee shall pay to Lessor all Base Annual Rental, Additional Rental
and other sums and obligations then due and payable under this Lease, (iii)
the Base Annual Rental then in effect shall be reduced by an amount equal to
the product of the Applicable Percentage for the affected Property and the
Base Annual Rental then in effect, (iv) Lessee shall pay Lessor an amount
equal to the insurance deductible applicable to that Material Casualty, as
applicable, and (v) provided Lessee shall have paid Lessor all sums described
in the preceding subitems (ii) and (iv), all obligations of either party with
respect to that Property shall cease as of the next scheduled Base Monthly
Rental payment date, provided,
31
however, Lessee's obligations to Lessor with respect to the affected Property
under any indemnification provisions of this Lease with respect to that
Property (including, without limitation, Sections 16 and 19) and Lessee's
obligations to pay any sums (whether payable to Lessor or a third party)
accruing under this Lease with respect to the affected Property prior to such
termination shall survive the termination of this Lease. This Lease shall,
however, continue in full force and effect with respect to all other
Properties.
E. CASUALTY TERMINATION PAYMENT. If Lessee makes a Casualty
Termination Payment within 60 days of a Material Casualty, (1) Lessor shall
be entitled to receive the net award resulting from such Material Casualty,
(2) on the next scheduled Base Monthly Rental payment date, Lessee shall pay
to Lessor all Base Annual Rental, Additional Rental and other sums and
obligations then due and payable under this Lease, (3) the Base Annual Rental
then in effect shall be reduced by an amount equal to the product of the
Applicable Percentage for the affected Property and the Base Annual Rental
then in effect, (4) Lessee shall pay Lessor an amount equal to the insurance
deductible applicable to such Material Casualty, as applicable, and (5)
provided Lessee shall have paid Lessor all sums described in the preceding
subitems (2) and (4), all obligations of either party under this Lease and
otherwise with respect to the affected Property shall cease as of the next
scheduled Base Monthly Rental payment date, provided, however, Lessee's
obligations to Lessor with respect to the affected Property under any
indemnification provisions of this Lease with respect to the affected
Property (including, without limitation, Sections 16 and 19) and Lessee's
obligations to pay any sums (whether payable to Lessor or a third party)
accruing under this Lease with respect to the affected Property prior to such
termination shall survive the termination of this Lease. This Lease shall,
however, continue in full force and effect with respect to all other
Properties.
F. LEASE CONTINUATION. Upon the occurrence of any Casualty or
Taking, Lessee shall take all steps necessary to ensure that the affected
Property is secure and does not pose any threat or risk of harm to third
parties, adjoining property owners or occupants. If such Casualty or Taking
is not a Material Casualty or Material Taking, or if such Casualty or Taking
is a Material Casualty or Material Taking, as applicable, but Lessee does not
elect to make a Casualty Substitution Offer or Casualty Termination Payment
or Condemnation Substitution Offer or Condemnation Termination Payment, as
applicable, in connection with such Material Casualty or Material Taking,
then, in any such event, (A) this Lease shall remain in full force and
effect, (B) all Base Annual Rental, Additional Rental and other sums and
obligations due under this Lease shall continue unabated, and (C) Lessee
shall promptly commence and diligently prosecute restoration of the affected
Property to the same condition, as nearly as practicable, as the condition of
such affected Property prior to the occurrence of such Casualty or Taking, as
applicable, in compliance with all Applicable Regulations and the terms and
conditions of this Lease, including, without limitation, the terms and
conditions of Section 18 hereof. Unless Lessee shall elect to make a
Casualty Substitution Offer, Casualty Termination Payment, Condemnation
Substitution Offer or Condemnation Termination Payment, as applicable,
following the occurrence of a Material Casualty or Material Taking,
respectively, then, subject to such reasonable conditions for disbursement as
may be imposed by Lessor, Lessor shall, upon the occurrence of any Casualty
or Condemnation, promptly make available to Lessee in installments as
restoration progresses an amount up to, but not exceeding, the amount of any
insurance proceeds, award, compensation or damages actually received by
Lessor (after deducting all costs, fees and expenses incident to the
collection thereof (the "Material
32
Restoration Amount"), upon request of Lessee accompanied by evidence
reasonably satisfactory to Lessor that such amount has been paid or is due
and payable and is properly a part of such costs and that Lessee has complied
with the terms of Section 18 above in connection with the restoration. Prior
to the disbursement of any portion of the Material Restoration Amount, Lessee
shall provide evidence reasonably satisfactory to Lessor of the payment of
restoration expenses by Lessee up to the amount of the insurance deductible
applicable to such Material Casualty or Material Taking. Lessor shall be
entitled to keep any portion of the Material Restoration Amount which may be
in excess of the cost of restoration, and Lessee shall bear all additional
costs, fees and expenses of such restoration in excess of the Material
Restoration Amount.
G. MATERIAL TAKING. Within 30 days of a Material Taking
affecting any Property, Lessee shall either:
(i) deliver a rejectable offer to Lessor (a
"Condemnation Substitution Offer") to substitute a Substitute
Property for the affected Property pursuant to the terms and
conditions of Section 55 of this Lease; or
(ii) make a payment (a "Condemnation Termination
Payment") to Lessor to terminate this Lease with respect to the
affected Property in an amount equal to the Applicable Percentage for
that Property multiplied by the aggregate Base Annual Rental and
Additional Rental for the remaining Initial Term. All Condemnation
Termination Payments shall be made on a regularly scheduled Base
Monthly Rental payment date upon no less than 30 days prior written
notice from Lessee to Lessor.
Lessor shall have 120 days from the delivery of a Condemnation
Substitution Offer satisfying the requirements of Section 55 to accept or
reject that offer in its sole discretion. Lessor's failure to deliver notice
of acceptance or rejection of that offer within such time period shall be
deemed to constitute Lessor's acceptance of the Condemnation Substitution
Offer. If the Mortgage corresponding to the affected Property is still
outstanding, any rejection of the Condemnation Substitution Offer by Lessor
shall not be effective unless it is consented to in writing by Lender and
such written consent is delivered to Lessee within that 120-day period
(Lender shall be deemed to have objected to Lessor's rejection of such
Condemnation Substitution Offer if Lender does not consent to or object to
Lessor's rejection of such Condemnation Substitution Offer within such 120-
day period).
H. ACCEPTANCE OR REJECTION OF CONDEMNATION OFFER. If Lessor
accepts the Condemnation Substitution Offer or is deemed to have accepted the
Condemnation Substitution Offer or if any rejection of the Condemnation
Substitution Offer by Lessor is not consented to in writing by Lender, then,
within 180 days of that Material Condemnation, Lessee shall complete the
substitution, subject, however, to the satisfaction of each of the applicable
terms and conditions set forth in this Section 21 and Section 55. Upon such
substitution (i) Lessee shall be entitled to claim and receive the net award
resulting from the Material Taking, after payment of all costs and expenses
incurred by Lessor and Lender in connection with such Material Taking, and
(ii) all obligations of either party under this Lease and otherwise with
respect to the Property being replaced shall cease as of the closing of the
substitution; provided, however, Lessee's obligations to the Indemnified
Parties under any indemnification provisions of this Lease with respect to
the affected Property (including, without limitation, Sections 16 and 19) and
Lessee's
33
obligations to pay any sums (whether payable to Lessor or a third party)
accruing under this Lease with respect to the affected Property prior to the
closing of the substitution shall survive the termination of this Lease with
respect to the affected Property. This Lease shall, however, continue in
full force and effect with respect to all other Properties.
If Lessor rejects the Condemnation Substitution Offer and, as long
as the Mortgage corresponding to the Property subject to the Condemnation
Substitution Offer is still outstanding, such rejection is consented to by
Lender as provided in Section 21 or if the Material Taking shall occur after
the commencement of any extension options exercised pursuant to Section 27,
then (i) the net award resulting from that Material Taking shall be paid to
and belong to Lessor, (ii) on the next scheduled Base Monthly Rental payment
date, Lessee shall pay to Lessor all Base Annual Rental, Additional Rental
and other sums and obligations then due and payable under this Lease, (iii)
the Base Annual Rental then in effect shall be reduced by an amount equal to
the product of the Applicable Percentage for the affected Property and the
Base Annual Rental then in effect, and (iv) provided Lessee shall have paid
Lessor all sums described in the preceding subitem (ii), all obligations of
either party hereunder with respect to the affected Property shall cease as
of the next scheduled Base Monthly Rental payment date, provided, however,
Lessee's obligations to Lessor with respect to the affected Property under
any indemnification provisions of this Lease with respect to the affected
Property (including, without limitation, Sections 16 and 19) and Lessee's
obligations to pay any sums (whether payable to Lessor or a third party)
accruing under this Lease with respect to the affected Property prior to such
termination shall survive the termination of this Lease. This Lease shall,
however, continue in full force and effect with respect to all other
Properties.
I. TAKING TERMINATION PAYMENT. In the event Lessee makes a
Condemnation Termination Payment within 30 days of a Material Taking, (1)
Lessor shall be entitled to receive the net award resulting from such
Material Taking, (2) on the next scheduled Base Monthly Rental payment date,
Lessee shall pay to Lessor all Base Annual Rental, Additional Rental and
other sums and obligations then due and payable under this Lease, (3) the
Base Annual Rental then in effect shall be reduced by an amount equal to the
product of the Applicable Percentage for the affected Property and the Base
Annual Rental then in effect, and (4) provided Lessee shall have paid Lessor
all sums described in the preceding subitem (2), all obligations of either
party hereunder with respect to the affected Property shall cease as of the
next scheduled Base Monthly Rental payment date; provided, however, Lessee's
obligations to Lessor with respect to the affected Property under any
indemnification provisions of this Lease with respect to the affected
Property (including, without limitation, Sections 16 and 19) and Lessee's
obligations to pay any sums (whether payable to Lessor or a third party)
accruing under this Lease with respect to the affected Property prior to such
termination shall survive the termination of this Lease. This Lease shall,
however, continue in full force and effect with respect to all other
Properties.
J. TEMPORARY TAKING. In the event of a Taking of all or any
part of any of the Properties for a temporary use ("Temporary Taking"), this
Lease shall remain in full force and effect without any reduction of Base
Annual Rental, Additional Rental or any other sum payable hereunder. Except
as provided below, Lessee shall be entitled to the entire award for a
Temporary Taking, whether paid by damages, rent or otherwise, unless the
period of occupation and use by the condemning authorities shall extend
beyond the date of expiration of this Lease, in which case the award made for
such Taking shall be apportioned between Lessor and Lessee
34
as of the date of such expiration. At the termination of any such Temporary
Taking, Lessee will, at its own cost and expense and pursuant to the terms of
Section 18 above, promptly commence and complete the restoration of the
Property affected by the Temporary Taking; provided, however, Lessee shall
not be required to restore the affected Property if the Lease Term shall
expire prior to, or within one year after, the date of termination of the
Temporary Taking, and in that event Lessor shall be entitled to recover the
entire award relating to the Temporary Taking.
K. PARTIAL TAKING OR PARTIAL CASUALTY. In the event of a
Taking which is not a Material Taking or a Temporary Taking ("Partial
Taking") or of a Casualty which is not a Material Casualty (a "Partial
Casualty"), all awards, compensation or damages shall be paid to Lessor, and
Lessor shall have the option to (i) terminate this Lease with respect to the
Property affected, provided that Lessor shall have obtained Lender's prior
written consent, by notifying Lessee within 60 days after Lessee gives Lessor
notice of the Partial Taking or Partial Casualty, or (ii) continue this Lease
in effect, which election may be evidenced by either a written notice from
Lessor to Lessee or Lessor's failure to notify Lessee in writing that Lessor
has elected to terminate this Lease with respect to the affected Property
within such 60-day period.
Lessee shall have a period of 60 days after Lessor's notice that it
has elected to terminate this Lease with respect to the affected Property
during which to elect to continue this Lease with respect to the affected
Property on the terms herein provided. If Lessor elects to terminate this
Lease with respect to the affected Property and Lessee does not elect to
continue this Lease with respect to the affected Property or shall fail
during its 60-day period to notify Lessor of Lessee's intent to continue this
Lease with respect to that Property, then this Lease shall terminate with
respect to the affected Property as of the last day of the month during which
Lessee's 60-day period expired. Lessee shall then immediately vacate and
surrender the affected Property, all obligations of either party under this
Lease or otherwise with respect to that Property shall cease as of the date
of termination (provided, however, Lessee's obligations to the Indemnified
Parties under any indemnification provisions of this Lease with respect to
the affected Property (including, without limitation, Sections 16 and 19) and
Lessee's obligations to pay Base Annual Rental, Additional Rental and all
other sums (whether payable to Lessor or a third party) accruing under this
Lease with respect to the affected Property prior to the date of termination
shall survive such termination) and Lessor may retain all such awards,
compensation or damages. The Lease shall continue in full force and effect
with respect to all other Properties.
If Lessor elects not to terminate this Lease with respect to the
affected Property, or if Lessor elects to terminate this Lease with respect
to the affected Property but Lessee elects to continue this Lease with
respect to the affected Property, then this Lease shall continue in full
force and effect on the following terms: (i) all Base Annual Rental,
Additional Rental and other sums and obligations due under this Lease shall
continue unabated, and (ii) Lessee shall promptly commence and diligently
prosecute restoration of the affected Property to the same condition, as
nearly as practicable, as prior to such Partial Taking or Partial Casualty as
reasonably approved by Lessor. In that case, Lessor shall promptly make
available in installments as restoration progresses an amount up to but not
exceeding the amount of any award, compensation or damages received by Lessor
after deducting all costs, fees and expenses incident to the collection
thereof (the "Net Restoration Amount"), upon request of Lessee accompanied by
evidence reasonably satisfactory to Lessor that such amount has been paid or
is due and payable and is properly a part of such costs and that Lessee has
complied with the terms
35
of Section 18 above in connection with the restoration. Lessor shall be
entitled to keep any portion of the Net Restoration Amount which may be in
excess of the cost of restoration, and Lessee shall bear all additional
costs, fees and expenses of such restoration in excess of the Net Restoration
Amount. If this Lease is terminated with respect to any Property as a result
of a Partial Casualty, simultaneously with such termination Lessee shall pay
Lessor an amount equal to the insurance deductible applicable to such Partial
Casualty.
L. ADJUSTMENT OF LOSSES. Any loss under any property damage
insurance required to be maintained by Lessee shall be adjusted by Lessor and
Lessee. Any award relating to a Taking shall be adjusted by Lessor or, at
Lessor's election, Lessee. Notwithstanding the foregoing or any other
provisions of this Section 21 to the contrary, if at the time of any Taking
or any Casualty or at any time thereafter an Event of Default shall have
occurred and be continuing, Lessor is hereby authorized and empowered but
shall not be obligated, in the name and on behalf of Lessee and otherwise, to
file and prosecute Lessee's claim, if any, for an award on account of such
Taking or for insurance proceeds on account of such Casualty and to collect
such award or proceeds and apply the same, after deducting all costs, fees
and expenses incident to the collection thereof, to the curing of such
default and any other then existing default under this Lease and/or to the
payment of any amounts owed by Lessee to Lessor under this Lease, in such
order, priority and proportions as Lessor in its discretion shall deem
proper.
M. PAYMENT OF COSTS AND EXPENSES. Lessee shall be solely
responsible for the payment of all costs and expenses incurred in connection
with the conveyance of a Property to Lessee pursuant to this Section 21,
including, without limitation, to the extent applicable, the cost of title
insurance, survey charges, stamp taxes, mortgage taxes, transfer fees, escrow
and recording fees, taxes imposed on Lessor as a result of such conveyance,
taxes imposed in connection with the transfer of a Property to Lessee or the
termination of this Lease with respect to a Property pursuant to the
provisions of this Section 21, Lessee's attorneys' fees and the reasonable
attorneys' fees and expenses of counsel to Lessor and Lender.
N. NO LIMITATION. Notwithstanding the foregoing, nothing in
this Section 21 shall be construed as limiting or otherwise adversely
affecting the representations, warranties, covenants and characterizations
set forth in Lease, including, without limitation, those provisions set forth
in Section 3 of this Lease.
22. INSPECTION. Lessor and its authorized representatives shall
have the right, upon giving not less than five Business Days' prior written
notice to Lessee (except that in the event of an emergency no such prior
notice shall be required), to enter any of the Properties or any part thereof
at reasonable times and inspect the same and make photographic or other
evidence concerning Lessee's compliance with the terms of this Lease. Lessee
hereby waives any claim for damages for any injury or inconvenience to or
interference with Lessee's business, any loss of occupancy or quiet enjoyment
of any of the Properties and any other loss occasioned by such entry so long
as Lessor shall have used reasonable efforts not to unreasonably interrupt
Lessee's normal business operations. Lessor hereby covenants and agrees to
indemnify, defend and hold Lessee harmless from and against any and all
losses, liabilities, damages, costs, expenses, suits, judgments and claims
arising from injury or damage during the Lease Term to person or property
caused by the act or acts, omissions or commissions of Lessor or any of its
authorized representatives with respect to, or growing out of, any actions of
Lessor pursuant to this Section
36
22 (except to the extent of Lessee's gross negligence or willful misconduct;
provided, however, that the term "gross negligence" shall not include gross
negligence imputed as a matter of law to Lessor solely by reason of the
Lessor's interest in any of the Properties or Lessor's failure to act in
respect of matters which are or were the obligation of Lessee under this
Lease). Lessee shall keep and maintain at the Properties or Lessee's
corporate headquarters full, complete and appropriate books of account and
records of Lessee's business relating to the Properties. Lessee's books and
records shall be open at all reasonable times during regular business hours
for inspection by Lessor, Lender and their respective auditors or other
authorized representatives and shall show such information as is reasonably
necessary to determine compliance with Lessee's obligations under this Lease.
23. DEFAULT, REMEDIES AND MEASURE OF DAMAGES. A. Each of the
following shall be an event of default under this Lease (each, an "Event of
Default"):
(i) If any representation or warranty of Lessee set
forth in this Lease is false in any respect as of the Effective Date,
or if Lessee knowingly renders any statement or account which is
false as and when made in any manner which could reasonably be
expected to result in damages to Lessor;
(ii) If any rent or other monetary sum due under this
Lease is not paid within 5 Business Days from the date when due;
provided, however, notwithstanding the occurrence of such an Event
of Default, Lessor shall not be entitled to exercise its remedies set
forth below unless and until Lessor shall have given Lessee written
notice thereof and a period of 5 Business Days from the delivery of
such written notice shall have elapsed without such Event of Default
being cured;
(iii) If Lessee fails to pay, prior to delinquency, any
taxes, assessments or other charges, the failure of which to pay will
result in the imposition of a lien against any of the Properties or
the rental or other payments due under this Lease or a claim against
Lessor, unless Lessee is contesting such taxes, assessments or other
charges in accordance with the provisions of Section 10 of this
Lease; provided, however, notwithstanding the occurrence of such an
Event of Default, Lessor shall not be entitled to exercise its
remedies set forth below unless and until Lessor shall have given
Lessee written notice thereof and a period of 5 Business Days from
the delivery of such written notice shall have elapsed without such
Event of Default being cured;
(iv) If Lessee or Guarantor becomes insolvent within the
meaning of the Code, files or notifies Lessor that it intends to file
a petition under the Code, initiates a proceeding under any similar
law or statute relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts (collectively, hereinafter, an
"Action"), becomes the subject of either a petition under the Code
or an Action which is not dissolved within 90 days after filing, or
is not generally paying its undisputed debts as the same become due;
(v) If Lessee vacates or abandons any of the Properties
other than in accordance with the provisions of Section 15 of this
Lease;
37
(vi) If Lessee fails to observe or perform any of the
other covenants (except with respect to a breach of the Aggregate
Fixed Charge Coverage Ratio, which breach is addressed in subitem
(ix) below), conditions or obligations of this Lease; provided,
however, if any such failure does not involve the payment of any
monetary sum, is not willful or intentional, does not place any
rights or property of Lessor in immediate jeopardy, and is within the
reasonable power of Lessee to promptly cure after receipt of written
notice thereof, then such failure shall not constitute an Event of
Default hereunder, except as otherwise expressly provided herein,
unless and until Lessor shall have given Lessee written notice
thereof and a period of 30 days shall have elapsed, during which
period Lessee may correct or cure such failure, and upon Lessee's
failure to complete such correction or cure, an Event of Default
shall be deemed to have occurred hereunder without further written
notice or demand of any kind being required. If such failure cannot
reasonably be corrected or cured within such 30-day period, and
Lessee is diligently pursuing a correction or cure of such failure,
then Lessee shall have a reasonable period to correct or cure such
failure beyond such 30-day period, which shall in no event exceed 90
days after receiving written notice of such failure from Lessor. If
Lessee shall fail to correct or cure such failure within such 90-day
period, an Event of Default shall be deemed to have occurred
hereunder without further written notice or demand of any kind being
required;
(vii) If there is an "Event of Default" or a breach or
default, after the passage of all applicable notice and cure or grace
periods, under any other Sale-Leaseback Document, including, without
limitation, the Guaranty;
(viii) If a final, nonappealable judgment is rendered by a
court against Lessee in an amount of $25,000,000.00 or more (which
is not covered by insurance) individually or in the aggregate or
which prevents the operation of any of the Properties as a Permitted
Facility, and in either event is not discharged (or provision made
for such discharge by settlement or otherwise; provided, however, any
such settlement must not prevent the operation of any of the
Properties as a Permitted Facility and Lessee's failure to perform
the terms of such settlement must not prevent the operation of any
of the Properties as a Permitted Facility) or bonded over within 60
days from the date of entry thereof;
(ix) If there is a breach of the Aggregate Fixed Charge
Coverage Ratio requirement and Lessor shall have given Lessee written
notice thereof; provided, however, Lessee shall have the option, but
not the obligation, to cure such breach by completing either of the
following within a period of 30 days from the delivery of such
written notice:
(1) prepay Aggregate Base Monthly Rental in an
amount (the "Prepayment Amount") equal to the product of (x)
the Aggregate Purchase Price multiplied by (y) a fraction,
the numerator of which is the Rent Adjustment Amount and the
denominator is the Aggregate Base Annual Rental then in
effect. In the event that Lessee shall elect to prepay the
Aggregate Base Monthly Rental in an amount equal to the
Prepayment Amount, then the Aggregate Base Monthly Rental
commencing on the next scheduled payment date following such
prepayment shall be reduced in an amount equal to the Rent
Adjustment Amount divided by 12, which reduction shall be
allocated toward the Base Annual Rental
38
and the Related Base Annual Rental based on the ratio of the
Purchase Price or Related Purchase Price, as applicable, to
the Aggregate Purchase Price; or
(2) deliver to Lessor a letter of credit in
favor of Lessor (or, at Lessor's written direction, in favor
of, or as designated by, Lender) in the form attached to
this Lease as Exhibit C issued by an Approved Institution
(the "Letter of Credit") in an amount equal to the lesser of
(x) the Prepayment Amount and (y) an amount equal to the
product of (aa) the Rent Adjustment Amount divided by 12 and
(bb) the number of months remaining in the Initial Term
(excluding any free rent period); provided, however, Lessee
may not provide a Letter of Credit to cure a breach of the
Aggregate Fixed Charge Coverage Ratio requirement if the
aggregate amount of all Letters of Credit delivered to
Lessor exceeds the Aggregate Base Annual Rental. Such
Letter of Credit shall be maintained in effect until the
cure of the breach of the Aggregate Fixed Charge Coverage
Ratio which was the basis for the Letter of Credit being
provided. If (x) an Event of Default shall have occurred
and be continuing, Lessor shall have the right to present
such Letter of Credit for payment and apply such proceeds
toward the Aggregate Base Annual Rental then due and payable
under this Lease, and (y) if a substitute or replacement
Letter of Credit issued by an Approved Institution for such
Letter of Credit in the amount of such Letter of Credit is
not provided to Lessor at least 30 days prior to the
scheduled expiration date of such Letter of Credit, Lessor
shall have the right to present such Letter of Credit for
payment at any time within such 30 day period and the
proceeds of such Letter of Credit shall be held by Lessor as
security for the payment of the Aggregate Base Annual Rental
due and payable under this Lease and the Related Lease. The
Letter of Credit shall provide that Lessor can only present
the Letter of Credit for payment as contemplated by the
preceding subitems (x) and (y) and the corresponding
subitems of Section 23.A(ix)(2) of the Related Lease. Upon
Lessee's cure of the Aggregate Fixed Charge Coverage Ratio
breach which was the basis for such Letter of Credit being
provided, Lessor shall release the Letter of Credit to the
Approved Institution or, if Lessor is holding the proceeds
of such Letter of Credit, deliver such proceeds to Lessee.
To the extent the proceeds of such Letter of Credit are
applied toward the Aggregate Base Annual Rental as
contemplated in this subitem (2), such proceeds shall be
allocated toward the Base Annual Rental and the Related Base
Annual Rental based on the ratio of the Purchase Price or
Related Purchase Price, as applicable, to the Aggregate
Purchase Price.
At Lessor's written direction, Lessee agrees to
cause the Approved Institution to issue two Letters of
Credit in favor of, or as designated by, Lender instead of
a single Letter of Credit as contemplated by the preceding
paragraph provided that the aggregate amount of the two
Letters of Credit does not exceed the amount of the single
Letter of Credit. Subsequent to the issuance of such
Letters of Credit, all references in this subitem (2) to a
Letter of Credit shall mean both Letters of Credit.
Notwithstanding the foregoing, if, within a 30 day period
after the delivery of Lessor's written notice to Lessee of Lessee's
breach of the Aggregate Fixed Charge Coverage Ratio requirement,
Lessee provides evidence satisfactory to Lessor that the
39
Aggregate Fixed Charge Coverage Ratio is at least 1.25:1 for the
twelve calendar month period immediately preceding the delivery to
Lessor of such evidence, no Event of Default shall be deemed to have
occurred as a result of such breach of the Aggregate Fixed Charge
Coverage Ratio requirement.
(x) If Lessee shall fail to sign any instrument or
certificate in accordance with the provisions of Sections 24 or 25
of this Lease and such failure shall not be cured within 5 Business
Days following written notice from Lessor.
(xi) If Lessee shall fail to maintain insurance in
accordance with the requirements of Section 12 and such failure
continues for 5 Business days following written notice from Lessor.
B. Upon the occurrence of an Event of Default, with or without
notice or demand, except the notice prior to default required under certain
circumstances by Section 23.A or such other notice as may be required by
statute and cannot be waived by Lessee (all other notices being hereby
waived), Lessor shall be entitled to exercise, at its option, concurrently,
successively, or in any combination, all remedies available at law or in
equity, including without limitation, any one or more of the following:
(i) To terminate this Lease, whereupon Lessee's right to
possession of the Properties shall cease and this Lease, except as
to Lessee's liability, shall be terminated.
(ii) To reenter and take possession of any or all of the
Properties and, to the extent permissible, all licenses, permits and
other rights or privileges of Lessee pertaining to the use and
operation of any or all of the Properties and to expel Lessee and
those claiming under or through Lessee, without being deemed guilty
in any manner of trespass or becoming liable for any loss or damage
resulting therefrom, without resort to legal or judicial process,
procedure or action. No notice from Lessor hereunder or under a
forcible entry and detainer statute or similar law shall constitute
an election by Lessor to terminate this Lease unless such notice
specifically so states. If Lessee shall, after default, voluntarily
give up possession of any of the Properties to Lessor, deliver to
Lessor or its agents the keys to any of the Properties, or both, such
actions shall be deemed to be in compliance with Lessor's rights and
the acceptance thereof by Lessor or its agents shall not be deemed
to constitute a termination of this Lease. Lessor reserves the right
following any reentry and/or reletting to exercise its right to
terminate this Lease by giving Lessee written notice thereof, in
which event this Lease will terminate as specified in said notice.
(iii) If Lessee has not removed the Personalty within 20
Business Days after written notice from Lessor to Lessee and repaired
all damage to the Properties caused by such removal, Lessor shall
have the immediate right to seize all Personalty located on or at any
or all of the Properties and cause the same to be stored in a public
warehouse or elsewhere at Lessee's sole expense, without becoming
liable for any loss or damage resulting therefrom and without
resorting to legal or judicial process, procedure or action.
(iv) To bring an action against Lessee for any damages
sustained by Lessor.
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(v) To relet any or all of the Properties or any part
thereof for such term or terms (including a term which extends beyond
the original Lease Term), at such rentals and upon such other terms
as Lessor, in its sole discretion, may determine, with all proceeds
received from such reletting being applied to the rental and other
sums due from Lessee in such order as Lessor may, in its sole
discretion, determine, which other sums include, without limitation,
all repossession costs, brokerage commissions, reasonable attorneys'
fees and expenses, employee expenses, alteration, remodeling and
repair costs and expenses of preparing for such reletting. Except
to the extent required by applicable law, Lessor shall have no
obligation to relet any of the Properties or any part thereof and
shall in no event be liable for refusal or failure to relet any of
the Properties or any part thereof, or, in the event of any such
reletting, for refusal or failure to collect any rent due upon such
reletting, and no such refusal or failure shall operate to relieve
Lessee of any liability under this Lease or otherwise to affect any
such liability. Lessor reserves the right following any reentry
and/or reletting to exercise its right to terminate this Lease by
giving Lessee written notice thereof, in which event this Lease will
terminate as specified in said notice.
(vi) (x) To recover from Lessee all rent and other
monetary sums then due and owing under this Lease; and (y) to
accelerate and recover from Lessee the present value (discounted at
the rate of 6% per annum) of all rent and other monetary sums
scheduled to become due and owing under this Lease after the date of
such breach for the entire original scheduled Lease Term; provided,
however, in no event shall such recovery be less than the sum of (i)
the product of the percentage specified on Schedule III attached
hereto which corresponds to the month in which such Event of Default
first occurred multiplied by the sum of Lessor's Total Investment for
all of the Properties which are then subject to this Lease plus (ii)
the sum of the Prepayment Charges corresponding to all of the
Properties which are then subject to this Lease.
(vii) To recover from Lessee all reasonable costs and
expenses, including reasonable attorneys' fees, court costs, expert
witness fees, costs of tests and analyses, travel and accommodation
expenses, deposition and trial transcripts, copies and other similar
costs and fees, paid or incurred by Lessor as a result of such
breach, regardless of whether or not legal proceedings are actually
commenced.
(viii) To immediately or at any time thereafter, and with
or without notice, at Lessor's sole option but without any obligation
to do so, correct such breach or default and charge Lessee all costs
and expenses incurred by Lessor therein. Any sum or sums so paid by
Lessor, together with interest at the Default Rate, shall be deemed
to be Additional Rental hereunder and shall be immediately due from
Lessee to Lessor. Any such acts by Lessor in correcting Lessee's
breaches or defaults hereunder shall not be deemed to cure said
breaches or defaults or constitute any waiver of Lessor's right to
exercise any or all remedies set forth herein.
(ix) To immediately or at any time thereafter, and with
or without notice, except as required herein, set off any money of
Lessee held by Lessor under this Lease against any sum owing by
Lessee or Guarantor hereunder.
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(x) To seek any equitable relief available to Lessor,
including, without limitation, the right of specific performance.
All powers and remedies given by this Section 23.B to Lessor, subject
to applicable law, shall be cumulative and not exclusive of one another or of
any other right or remedy or of any other powers and remedies available to
Lessor under this Lease, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements of Lessee contained
in this Lease, and no delay or omission of Lessor to exercise any right or
power accruing upon the occurrence of any Event of Default shall impair any
other or subsequent Event of Default or impair any rights or remedies
consequent thereto. Every power and remedy given by this Section 23.B or by
law to Lessor may be exercised from time to time, and as often as may be
deemed expedient, by Lessor, subject at all times to Lessor's right in its
sole judgment to discontinue any work commenced by Lessor or change any
course of action undertaken by Lessor.
If Lessee shall fail to observe or perform any of its obligations
under this Lease or in the event of an emergency, then, without waiving any
Event of Default which may result from such failure or emergency, Lessor may,
but without any obligation to do so, take all actions, including, without
limitation, entry upon any or all of the Properties to perform Lessee's
obligations, immediately and without notice in the case of an emergency and
upon five Business Days' prior written notice to Lessee in all other cases.
All expenses incurred by Lessor in connection with performing such
obligations, including, without limitation, reasonable attorneys' fees and
expenses, together with interest at the Default Rate from the date any such
expenses were incurred by Lessor until the date of payment by Lessee, shall
constitute Additional Rental and shall be paid by Lessee to Lessor upon
demand.
24. LIENS; MORTGAGES, SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT. Lessor's interest in this Lease and/or any of the Properties
shall not be subordinate to any liens or encumbrances placed upon any of the
Properties by or resulting from any act of Lessee, and nothing herein
contained shall be construed to require such subordination by Lessor. Lessee
shall keep the Properties free from any liens for work performed, materials
furnished or obligations incurred by Lessee. NOTICE IS HEREBY GIVEN THAT,
EXCEPT AS OTHERWISE CONSENTED TO BY LESSOR PURSUANT TO SECTION 26, LESSEE IS
NOT AUTHORIZED TO PLACE OR ALLOW TO BE PLACED ANY LIEN, MORTGAGE, DEED OF
TRUST, SECURITY INTEREST OR ENCUMBRANCE OF ANY KIND UPON ALL OR ANY PART OF
ANY OF THE PROPERTIES OR LESSEE'S LEASEHOLD INTEREST THEREIN, AND ANY SUCH
PURPORTED TRANSACTION WHICH IS NOT APPROVED BY LESSOR SHALL BE VOID.
FURTHERMORE, ANY SUCH PURPORTED TRANSACTION SHALL BE DEEMED A TORTIOUS
INTERFERENCE WITH LESSOR'S RELATIONSHIP WITH LESSEE AND LESSOR'S OWNERSHIP OF
THE PROPERTIES.
This Lease at all times shall automatically be subordinate to the
Mortgages and to the lien of any and all mortgages, deeds of trust, deeds to
secure debt and trust deeds now or hereafter placed upon any of the
Properties by Lessor, and Lessee covenants and agrees to execute and deliver,
upon demand, such further instruments subordinating this Lease to the lien of
the Mortgages and any or all such mortgages, deeds of trust, deeds to secure
debt or trust deeds as shall be desired by Lessor, or any present or proposed
mortgagees or lenders under deeds of trust, deeds to secure debt or trust
deeds, upon the condition that (a) Lessee shall have the right to
42
remain in possession of the Properties under the terms of this Lease,
notwithstanding any default in the Mortgages or any or all such mortgages,
deeds of trust, deeds to secure debt or trust deeds or after foreclosure of
any or all such Mortgages, mortgages, deeds of trust, deeds to secure debt or
trust deeds, so long as an Event of Default shall not have occurred and be
continuing and (b) the holders of the Mortgages and any and all mortgages,
deeds of trust, deeds to secure debt and trust deeds now or hereafter placed
upon any of the Properties by Lessor execute an agreement substantially in
the form attached to this Lease as Exhibit D, but with such modifications as
may be reasonably required consistent with then customary lending practices,
in recordable form wherein the holder(s) of said indebtedness agree not to
disturb Lessee's possession, deprive Lessee of any rights or increase
Lessee's obligations under this Lease ("Non-Disturbance and Attornment
Agreement"). The Non-Disturbance and Attornment Agreement shall provide that
the mortgagee, beneficiary or trustee named in such mortgage, deed of trust,
deed to secure debt or trust deed shall, subject to the terms of this Section
24, recognize this Lease and acknowledge that, so long as an Event of Default
shall not have occurred and be continuing, a foreclosure or acceptance of a
deed in lieu of foreclosure or the exercise of any other rights under such
mortgage, deed of trust, deed to secure debt or trust deed shall not
extinguish or otherwise diminish or disturb the rights of Lessee as set forth
in this Lease. Lessee acknowledges and agrees that the execution and
delivery by Lender of the Acknowledgement satisfies the obligation of Lessor
to deliver a Non-Disturbance and Attornment Agreement with respect to the
obligations of Lessor to Lender under the Mortgages encumbering the
Properties executed as of the date of this Lease.
If any mortgagee, receiver, Lender or other secured party elects to
have this Lease and the interest of Lessee hereunder be superior to any of
the Mortgages or any such mortgage, deed of trust, deed to secure debt or
trust deed and evidences such election by notice given to Lessee, then this
Lease and the interest of Lessee hereunder shall be deemed superior to any
such Mortgage, mortgage, deed of trust, deed to secure debt or trust deed,
whether this Lease was executed before or after such Mortgage, mortgage, deed
of trust, deed to secure debt or trust deed and in that event such mortgagee,
receiver, Lender or other secured party shall have the same rights with
respect to this Lease as if it had been executed and delivered prior to the
execution and delivery of such Mortgage, mortgage, deed of trust, deed to
secure debt or trust deed and had been assigned to such mortgagee, receiver,
Lender or other secured party.
Although the foregoing provisions shall be self-operative and no
future instrument of subordination shall be required, upon request by Lessor,
Lessee shall execute and deliver whatever instruments may be reasonably
required for such purposes.
Lessee shall send written notice to any Lender of Lessor having a
recorded lien upon any of the Properties or any part thereof of which Lessee
has been notified in writing of any breach or default by Lessor of any of its
obligations under this Lease concurrently with the sending of such notice to
Lessor, and Lessee shall give such Lender at least 60 days beyond any notice
period to which Lessor might be entitled to cure such default before Lessee
may exercise any remedy with respect thereto.
25. ESTOPPEL CERTIFICATE. At any time, but not more often than
twice every 12 months, Lessee shall, promptly and in no event later than 10
days after a request from Lessor or Lender, execute, acknowledge and deliver
to Lessor or Lender a certificate in the form supplied
43
by Lessor, Lender or any present or proposed mortgagee or purchaser
designated by Lessor, certifying the following: (i) that Lessee has accepted
the Properties (or, if Lessee has not done so, that Lessee has not accepted
the Properties, and specifying the reasons therefor); (ii) that this Lease is
in full force and effect and has not been modified (or if modified, setting
forth all modifications), or, if this Lease is not in full force and effect,
the certificate shall so specify the reasons therefor; (iii) the commencement
and expiration dates of the Lease Term, including the terms of any extension
options of Lessee; (iv) the date to which the rentals have been paid under
this Lease and the amount thereof then payable; (v) whether there are then
any existing defaults by Lessor in the performance of its obligations under
this Lease, and, if there are any such defaults, specifying the nature and
extent thereof; (vi) that no notice has been received by Lessee of any
default under this Lease which has not been cured, except as to defaults
specified in the certificate; (vii) the capacity of the person executing such
certificate, and that such person is duly authorized to execute the same on
behalf of Lessee; (viii) that neither Lessor nor Lender has actual
involvement in the management or control of decision making related to the
operational aspects or the day-to-day operations of the Properties; and (ix)
any other information reasonably requested by Lessor or Lender consistent
with then customary leasing or lending practices.
26. ASSIGNMENT; SUBLETTING. A. Lessor shall have the right to
sell or convey all, but not less than all, of the Properties or to assign its
right, title and interest as Lessor under this Lease in whole, but not in
part. In the event of any such sale or assignment other than a security
assignment, provided Lessee receives written notice that such purchaser or
assignee has assumed all of Lessor's obligations under this Lease, Lessee
shall attorn to such purchaser or assignee and Lessor shall be relieved, from
and after the date of such transfer or conveyance, of liability for the
performance of any obligation of Lessor contained herein, except for
obligations or liabilities accrued prior to such assignment or sale.
B. Lessee acknowledges that Lessor has relied both on the
business experience and creditworthiness of Lessee and upon the particular
purposes for which Lessee intends to use the Properties in entering into this
Lease. Without the prior written consent of Lessor, and except as expressly
set forth in this Section 26.B: (i) Lessee shall not assign, transfer,
convey, pledge or mortgage this Lease or any interest therein, whether by
operation of law or otherwise; (ii) no interest in Lessee shall be assigned,
transferred, conveyed, pledged or mortgaged, whether by operation of law or
otherwise, including, without limitation, a dissolution of Lessee or a
transfer of any of the voting stock of Lessee; and (iii) Lessee shall not
sublet all or any part of any of the Properties except as set forth in
Section 26.C. It is expressly agreed that Lessor may withhold or condition
such consent based upon such matters as Lessor may in its reasonable
discretion determine, including, without limitation, the experience and
creditworthiness of any assignee, the assumption by any assignee of all of
Lessee's obligations hereunder by undertakings enforceable by Lessor, payment
to Lessor of any rentals owing under a sublease which are in excess of the
rentals owing hereunder, the transfer to any assignee of all necessary
licenses and franchises to continue operating the Properties for the purposes
herein provided, receipt of such representations and warranties from any
assignee as Lessor may reasonably request, including such matters as its
organization, existence, good standing and finances and other matters,
whether or not similar in kind. At the time of any assignment of this Lease
which is approved by Lessor, the assignee shall assume all of the obligations
of Lessee under this Lease pursuant to Lessor's standard form of assumption
agreement. No such assignment nor any subletting of any of the Properties
shall relieve Lessee of its obligations respecting this Lease. Any
assignment, transfer, conveyance, pledge or mortgage in violation of
44
this Section 26.B shall be voidable at the sole option of Lessor.
Notwithstanding the foregoing, but subject to the conditions set forth in the
following sentence, the prior written consent of Lessor shall not be required
for the assignment by Lessee of this Lease to an Affiliate of Lessee, or the
transfer of the voting stock of Lessee by Guarantor to an Affiliate of Lessee
in a single transaction or a series of transactions, provided that in either
event such Affiliate is a corporation, partnership or limited liability
company whose voting stock, partnership interests or membership interests, as
applicable, are owned entirely, directly or indirectly, by Guarantor.
Lessee's right to complete an assignment or transfer contemplated by the
preceding sentence shall be subject to the satisfaction of the following
conditions precedent at the time of the proposed assignment or transfer:
(1) no Event of Default shall have occurred and be
continuing;
(2) Lessee shall provide Lessor with written notice of
such proposed assignment or transfer at least 30 days prior to the
anticipated date of such assignment or transfer;
(3) Lessee, such Affiliate and Guarantor shall execute
such documents, take such actions and deliver such opinions of
counsel and other evidence of authority as Lessor may reasonably
require to evidence the obligations of Lessee and, to the extent
applicable, such Affiliate, as lessee, under this Lease and Guarantor
under the Guaranty notwithstanding the completion of such assignment
or transfer; and
(4) Lessee shall be solely responsible for the payment
of all costs and expenses incurred in connection with any such
assignment or transfer, including, without limitation, the reasonable
attorneys' fees and expenses of Lessor and Lender.
C. Without otherwise limiting any of the terms and conditions
of this Section or Section 24 of this Lease, (i) Lessee shall have the right
to transfer any of its assets to an Affiliate of Lessee, other than its
leasehold interests in the Properties and any other assets used in connection
with or related to the operation of the Properties, and (ii) the voting
stock, partnership interests or membership interests, as applicable, of such
Affiliate may be pledged to a third-party financial institution as security
for the performance of obligations due such institution, subject to the
satisfaction of the following conditions: (x) no Event of Default shall have
occurred and be continuing, (y) such Affiliate is a corporation, partnership
or limited liability company whose voting stock, partnership interests or
membership interests, as applicable, are owned entirely, directly or
indirectly, by Guarantor, and (z) such Affiliate shall have executed and
delivered to Lessor an unconditional guaranty of payment and performance with
respect to the obligations of Lessee under this Lease, which unconditional
guaranty shall be substantially in the form of the Guaranty.
D. Notwithstanding the foregoing, but subject to the conditions
set forth in the following sentence, Lessee shall have the right to sublease:
(i) any of the Properties to a wholly-owned subsidiary or Affiliate of
Lessee, plus (ii) an aggregate of four of the Properties at any time (in
addition to the Properties subleased pursuant to the preceding item (i))
without the consent of Lessor or Lender. Lessee's right to sublease the
Properties as contemplated by the preceding sentence shall be subject to the
following conditions:
(1) no Event of Default shall have occurred and be
continuing;
45
(2) any such sublease shall be subordinate to this Lease
and Lessee shall remain liable under this Lease notwithstanding such
sublease; and
(3) the Properties subject to such subleases shall be
used as Permitted Facilities and shall otherwise be operated and
maintained in accordance with the terms and conditions of this Lease.
Within 10 Business Days after the execution of each such sublease, Lessee
shall provide Lessor with a notice of such sublease and a photocopy of the
fully executed sublease.
27. OPTION TO EXTEND; NEW LEASE. A. Lessor and Lessee
acknowledge and agree that the Lease Term, including any term extensions
provided for in this Lease, is less than 90% of the expected remaining
economic life of each of the Properties. Lessee, provided no Event of
Default has occurred and is continuing at the time of exercise or at the
expiration of the Lease Term or, if applicable, the preceding extension of
the Lease Term, shall have the option to continue this Lease in effect for
one initial additional period of 10 years and 2 successive periods of 5 years
each in accordance with the terms and provisions of this Lease then in
effect, except that the Base Annual Rental during each extension period shall
be an amount set forth on the attached Exhibit X. Xxxxxx and Lessee agree
that the Base Annual Rental during each extension period represents the then
fair market rental value of the Properties.
Lessee may only exercise the first extension option by giving notice
to Lessor of Lessee's intention to do so not later than July 31, 2019. If
the first extension option is exercised by Lessee, Lessee may only exercise
the second extension option by giving notice to Lessor of Lessee's intention
to do so not later than October 31, 2030. If the first two extension options
are exercised, Lessee may only exercise the third extension option by giving
notice to Lessor of Lessee's intention to do so not later than October 31,
2035.
B. In addition, provided no Event of Default shall have occurred
and be continuing, Lessee shall also have the right, by notice delivered to
Lessor not later than July 31, 2019, to enter into a new master lease with
Lessor, to commence at the end of the Initial Term, for not less than 13 of
the Properties. In the event Lessee elects to enter into such new master
lease, the Base Annual Rental under such new master lease shall equal the
product of (i) the aggregate Applicable Percentage for the Properties
included within such new master lease multiplied by the Purchase Price, and
(ii) the "Rent Factor" set forth on the attached Exhibit B. Such new master
lease shall be for a 10 year primary term, have two (2) five-year renewal
options and otherwise be on the same terms and conditions as this Lease.
Lessee shall be solely responsible for the payment of all costs and expenses
incurred in connection with the execution of such new master lease,
including, without limitation, Lessee's attorneys' fees and reasonable
attorneys' fees and expenses of counsel to Lessor and Lender.
28. NOTICES. All notices, consents, approvals or other
instruments required or permitted to be given by either party pursuant to
this Lease shall be in writing and given by (i) hand delivery, (ii)
facsimile, (iii) express overnight delivery service or (iv) certified or
registered mail, return receipt requested, and shall be deemed to have been
delivered upon (a) receipt, if hand delivered, (b) the next Business Day
after transmission, if delivered by facsimile, (c) the next Business Day, if
delivered by express overnight delivery service, or (d) the
46
fifth Business Day following the day of deposit of such notice with the
United States Postal Service, if sent by certified or registered mail, return
receipt requested. Notices shall be provided to the parties and addresses
(or facsimile numbers, as applicable) specified below:
If to Lessee: Cracker Barrel Old Country Store, Inc.
000 Xxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: General Counsel
Cracker Barrel Old Country Store, Inc.
000 Xxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to Guarantor:CBRL Group, Inc.
Attention: General Counsel
000 Xxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Lessor: Country Stores Property I, LLC
c/o U.S. Realty Advisors LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or such other person as either party may from time
to time hereafter specify to the other party in a notice delivered in the
manner provided above. No such notices, consents, approvals or other
communications shall be valid unless Lender receives a duplicate original
thereof at the following address:
47
Xxxxxx X. Xxxxx, Esq.
Executive Vice President, General Counsel
and Secretary
FFCA Acquisition Corporation
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or such other person as Lender may from time to time
specify to Lessor and Lessee in a notice delivered in the manner provided
above.
29. HOLDING OVER. If Lessee remains in possession of any of the
Properties after the expiration of the Lease Term, Lessee, at Lessor's option
and within Lessor's sole discretion, may be deemed a tenant on a month-to-
month basis and shall continue to pay rentals and other sums in the amounts
herein provided, except that the Base Monthly Rental shall be automatically
doubled, and to comply with all the terms of this Lease; provided, however,
nothing herein nor the acceptance of rent by Lessor shall be deemed a consent
to such holding over. Lessee shall defend, indemnify, protect and hold the
Indemnified Parties harmless from and against any and all Losses resulting
from Lessee's failure to surrender possession upon the expiration of the
Lease Term, including, without limitation, any claims made by any succeeding
lessee. The terms of this Section 29 shall survive the expiration of the
Lease Term.
30. REMOVAL OF PERSONALTY. At the expiration of the Lease Term,
and if Lessee is not then in breach hereof, Lessee may remove all Personalty
from the Properties. Lessee shall repair any damage caused by such removal
and shall leave the Properties broom clean and in good and working condition
and repair inside and out, except for normal wear and tear and any Casualty
and any Taking for which the terms of this Lease do not require Lessee to
restore. Any property of Lessee left on the Properties on the 10th Business
Day following the expiration of the Lease Term shall automatically and
immediately become the property of Lessor. At the expiration of the Lease
Term, and if Lessee is not then in breach of this Lease, Lessor agrees that
Lessee, at Lessee's sole expense, may, within nine Business Days after such
expiration, make such modifications and alterations, including removal of all
distinctive physical and structural features associated with the trade dress
of Cracker Barrel Old Country Store(R) units, Xxxxx'x Roadhouse(R) units and
Xxxxxxx Xxxxxxxx'x Gourmet Market(TM) units, as may be necessary to distinguish
the Property so clearly from its former appearance and from other Cracker
Barrel Old Country Store(R) units, Xxxxx'x Roadhouse(R) units and Xxxxxxx
Xxxxxxxx'x Gourmet Market(TM), as to prevent any possibility that the public
will associate the Property with Cracker Barrel Old Country Store(R) units,
Xxxxx'x Roadhouse(R) units and Xxxxxxx Xxxxxxxx'x Gourmet Market(TM) units, and
any confusion created by such association. (Such modifications and
alterations shall include, but not be limited to, removing or covering the
distinctive decor and color scheme on all walls, counters, fixtures and
furnishings, as well as the exterior of the Property.).
31. FINANCIAL STATEMENTS. (a) Lessee shall provide Lessor
with copies of each Quarterly Report on Form 10-Q, Annual Report on Form 10-K
and Current Report on Form 8-K of Guarantor, promptly and in any event within
5 Business Days after the filing of such reports (if any) with the United
States Securities and Exchange Commission. If Guarantor ceases to be
48
required to file such reports, or if for any other reason such reports are
not filed, with the United States Securities and Exchange Commission, Lessee
shall provide Lessor the following reports: (i) within 60 days after the end
of each of the first 3 fiscal quarters of each fiscal year of Guarantor,
copies of the unaudited consolidated balance sheets of Guarantor and its
consolidated subsidiaries as at the end of the fiscal quarter of Guarantor
and the related unaudited statements of earnings and cash flows, in each case
for the fiscal quarter and for the period from the beginning of such fiscal
year through the end of such fiscal quarter of Guarantor, prepared in
accordance with GAAP throughout the periods reflected therein and certified
(subject to year end adjustments and the omission of footnotes) by the chief
financial officer or chief accounting officer of Guarantor, and (ii) as soon
as possible and in any event within 120 days after the end of each fiscal
year of Guarantor, a copy of the audited consolidated balance sheet of
Guarantor and its consolidated subsidiaries as at the end of that fiscal year
and the related statements of earnings, stockholders' equity and cash flows
of Guarantor and its consolidated subsidiaries for that fiscal year, setting
forth in each case, in comparative form, the corresponding figures for the
preceding fiscal year of Guarantor and prepared in accordance with GAAP
throughout the periods reflected therein, certified by a firm of independent
certified public accountants selected by Guarantor. In the event that
Lessee's property and business at the Properties is ordinarily consolidated
with other business for financial statement purposes, separate non-GAAP
statements shall be prepared showing the sales, profits and losses, assets
and liabilities pertaining to each of the Properties with the basis for
allocation of overhead or other charges being clearly set forth.
(b) Within 60 days after the end of each of the first 3 fiscal
quarters of each year of Lessee and within 120 days after the end of each
fiscal year of Lessee, Lessee shall deliver to Lessor and Lender a Store
Income Statement for each of the Properties.
32. FORCE MAJEURE. Any prevention, delay or stoppage due to
strikes, lockouts, acts of God, enemy or hostile governmental action, civil
commotion, fire or other casualty beyond the control of the party obligated
to perform shall excuse the performance by such party for a period equal to
any such prevention, delay or stoppage, except the obligations imposed with
regard to rental and other monies to be paid by Lessee pursuant to this Lease
and any indemnification obligations imposed upon Lessee under this Lease.
33. TIME IS OF THE ESSENCE. Time is of the essence with respect
to each and every provision of this Lease in which time is a factor.
34. LIABILITY LIMITATION. (a) Notwithstanding anything to the
contrary provided in this Lease, it is specifically understood and agreed,
such agreement being a primary consideration for the execution of this Lease
by Lessor, that (i) there shall be absolutely no personal liability on the
part of Lessor, its successors or assigns and the trustees, members,
partners, shareholders, officers, directors, employees and agents of Lessor
and its successors or assigns, to Lessee with respect to any of the terms,
covenants and conditions of this Lease, (ii) Lessee waives all claims,
demands and causes of action against the trustees, members, partners,
shareholders, officers, directors, employees and agents of Lessor and its
successors or assigns in the event of any breach by Lessor of any of the
terms, covenants and conditions of this Lease to be performed by Lessor, and
(iii) Lessee shall look solely to the Properties for the satisfaction of each
and every remedy of Lessee in the event of any breach by Lessor of any of
49
the terms, covenants and conditions of this Lease to be performed by Lessor,
or any other matter in connection with this Lease or the Properties, such
exculpation of liability to be absolute and without any exception whatsoever.
(b) Notwithstanding anything to the contrary provided in this
Lease, it is specifically understood and agreed, such agreement being a
primary consideration for the execution of this Lease by Lessee, that, except
as set forth in this subsection below, (i) there shall be absolutely no
personal liability on the part of the shareholders who are individuals,
officers, directors, employees and agents of Lessee and its successors or
assigns with respect to any of the terms, covenants and conditions of this
Lease, and (ii) Lessor waives all claims, demands and causes of action
against the shareholders who are individuals, officers, directors, employees
and agents of Lessee and its successors or assigns in the event of any breach
by Lessee of any of the terms, covenants and conditions of this Lease to be
performed by Lessee, such exculpation of liability to be absolute and without
any exception whatsoever, except that such waiver and exculpation shall not
(1) limit any obligation of Guarantor under the Guaranty, and (2) extend to
Losses incurred by any of the Indemnified Parties as a result of fraud or
intentional misrepresentations by any of the shareholders, officers,
directors, employees and agents of Lessee and its successors and assigns, or
limit the ability of the Indemnified Parties to seek recovery from such
shareholders, officers, directors, employees and agents of Lessee and its
successors and assigns as a result of such fraud or intentional
3misrepresentation.
35. CONSENT OF LESSOR. (a) Except as specified otherwise in
specific Sections of this Lease, Lessor's consent to any request of Lessee
may be conditioned or withheld in Lessor's sole discretion. Lessor shall
have no liability for damages resulting from Lessor's failure to give any
consent, approval or instruction reserved to Lessor, Lessee's sole remedy in
any such event being an action for injunctive relief.
(b) It is understood and agreed that to the extent Lessor is
required to obtain the consent, approval, agreement or waiver of Lender with
respect to a matter for which Lessor's approval has been requested under this
Lease, Lessor shall in no event be deemed to have unreasonably withheld
Lessor's consent, approval, agreement or waiver thereof if Lender shall not
have given its approval if required.
36. WAIVER AND AMENDMENT. No provision of this Lease shall be
deemed waived or amended except by a written instrument unambiguously setting
forth the matter waived or amended and signed by the party against which
enforcement of such waiver or amendment is sought. Waiver of any matter
shall not be deemed a waiver of the same or any other matter on any future
occasion. No acceptance by Lessor of an amount less than the monthly rent
and other payments stipulated to be due under this Lease shall be deemed to
be other than a payment on account of the earliest such rent or other
payments then due or in arrears nor shall any endorsement or statement on any
check or letter accompanying any such payment be deemed a waiver of Lessor's
right to collect any unpaid amounts or an accord and satisfaction.
37. SUCCESSORS BOUND. Except as otherwise specifically provided
herein, the terms, covenants and conditions contained in this Lease shall
bind and inure to the benefit of the respective heirs, successors, executors,
administrators and assigns of each of the parties hereto.
50
38. NO MERGER. The voluntary or other surrender of this Lease
by Lessee, or a mutual cancellation of this Lease, shall not result in a
merger of Lessor's and Lessee's estates, and shall, at the option of Lessor,
either terminate any or all existing subleases or subtenancies, or operate as
an assignment to Lessor of any or all of such subleases or subtenancies.
39. CAPTIONS. Captions are used throughout this Lease for
convenience of reference only and shall not be considered in any manner in
the construction or interpretation hereof. References to a particular
"Section" herein shall mean such Section of this Lease unless specific
reference is also made to another instrument or agreement.
40. SEVERABILITY. The provisions of this Lease shall be deemed
severable. If any part of this Lease shall be held unenforceable by any
court of competent jurisdiction, the remainder shall remain in full force and
effect, and such unenforceable provision shall be reformed by such court so
as to give maximum legal effect to the intention of the parties as expressed
herein.
41. CHARACTERIZATION. A. It is the intent of the parties hereto
that the business relationship created by this Lease and any related
documents is solely that of a long-term commercial lease between landlord and
tenant and has been entered into by both parties in reliance upon the
economic and legal bargains contained herein. None of the agreements
contained herein, is intended, nor shall the same be deemed or construed, to
create a partnership between Lessor and Lessee, to make them joint venturers,
to make Lessee an agent, legal representative, partner, subsidiary or
employee of Lessor, nor to make Lessor in any way responsible for the debts,
obligations or losses of Lessee.
X. Xxxxxx and Lessee acknowledge and warrant to each other that
each has been represented by independent counsel and has executed this Lease
after being fully advised by said counsel as to its effect and significance.
This Lease shall be interpreted and construed in a fair and impartial manner
without regard to such factors as the party which prepared the instrument,
the relative bargaining powers of the parties or the domicile of any party.
Whenever in this Lease any words of obligation or duty are used, such words
or expressions shall have the same force and effect as though made in the
form of a covenant.
42. EASEMENTS. During the Lease Term, Lessor agrees to grant
such utility, access or other similar easements on, over and above any of the
Properties as Lessee may reasonably request provided that such easements will
not materially interfere with Lessor's ownership of such Properties.
43. BANKRUPTCY. A. As a material inducement to Lessor executing
this Lease, Lessee acknowledges and agrees that Lessor is relying upon (i)
the financial condition and specific operating experience of Lessee and
Lessee's obligation to use each of the Properties specifically in accordance
with system-wide requirements imposed from time to time on Permitted
Facilities, (ii) Lessee's timely performance of all of its obligations under
this Lease notwithstanding the entry of an order for relief under the Code
for Lessee and (iii) all Events of Default under this Lease as to all
Properties being cured promptly and this Lease being assumed within 60 days
of any order for relief entered under the Code for Lessee, or this Lease
being rejected within that 60-day period and the Properties surrendered to
Lessor.
51
Accordingly, in consideration of the mutual covenants contained in
this Lease and for other good and valuable consideration, Lessee hereby
agrees that:
(i) All obligations that accrue under this Lease
(including the obligation to pay rent), from and after the date that
an Action is commenced shall be timely performed exactly as provided
in this Lease and any failure to so perform shall be harmful and
prejudicial to Lessor;
(ii) Any and all obligations under this Lease that become
due from and after the date that an Action is commenced and that are
not paid as required by this Lease shall, in the amount of such
rents, constitute administrative expense claims allowable under the
Code with priority of payment at least equal to that of any other
actual and necessary expenses incurred after the commencement of the
Action;
(iii) Any extension of the time period within which Lessee
may assume or reject this Lease without an obligation to cause all
obligations coming due under this Lease from and after the date that
an Action is commenced to be performed as and when required under
this Lease shall be harmful and prejudicial to Lessor;
(iv) Any time period designated as the period within
which Lessee must cure all defaults and compensate Lessor for all
pecuniary losses which extends beyond the date of assumption of this
Lease shall be harmful and prejudicial to Lessor;
(v) Any assignment of this Lease must result in all
terms and conditions of this Lease being assumed by the assignee
without alteration or amendment, and any assignment which results in
an amendment or alteration of the terms and conditions of this Lease
without the express written consent of Lessor shall be harmful and
prejudicial to Lessor;
(vi) Any proposed assignment of this Lease to an
assignee:
(a) that will not use the Properties
specifically in accordance with a franchise, license and/or
area development agreement with the franchisor of Permitted
Facilities,
(b) that does not possess financial condition,
operating performance and experience characteristics equal
to or better than the financial condition, operating
performance and experience of Lessee as of the Effective
Date, or
(c) that does not provide guarantors of the
Lease obligations with financial condition equal to or
better than the financial condition of Guarantor as of the
Effective Date,
shall be harmful and prejudicial to Lessor;
(vii) The rejection (or deemed rejection) of this Lease
for any reason whatsoever shall constitute cause for immediate relief
from the automatic stay provisions of the Code, and Lessee stipulates
that such automatic stay shall be lifted immediately and possession
of
52
the Properties will be delivered to Lessor immediately without the necessity
of any further action by Lessor; and
(viii) This Lease shall at all times be treated as
consistent with the specific characterizations set forth in Section
3 of this Lease, and assumption or rejection of this Lease shall be
(a) in its entirety, (b) for all of the Properties, and (c) in strict
accordance with the specific terms and conditions of this Lease.
B. No provision of this Lease shall be deemed a waiver of
Lessor's rights or remedies under the Code or applicable law to oppose any
assumption and/or assignment of this Lease, to require timely performance of
Lessee's obligations under this Lease, or to regain possession of the
Properties as a result of the failure of Lessee to comply with the terms and
conditions of this Lease or the Code.
C. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Lessee to or on behalf of Lessor under this Lease, whether
or not expressly denominated as such, shall constitute "rent" for the
purposes of the Code.
D. For purposes of this Section 43 addressing the rights and
obligations of Lessor and Lessee in the event that an Action is commenced,
the term "Lessee" shall include Lessee's successor in bankruptcy, whether a
trustee, Lessee as debtor in possession or other responsible Person.
44. NO OFFER. No contractual or other rights shall exist between
Lessor and Lessee with respect to the Properties until both have executed and
delivered this Lease, notwithstanding that deposits may have been received by
Lessor and notwithstanding that Lessor may have delivered to Lessee an
unexecuted copy of this Lease. The submission of this Lease to Lessee shall
be for examination purposes only, and does not and shall not constitute a
reservation of or an option for Lessee to lease or otherwise create any
interest on the part of Lessee in the Properties.
45. OTHER DOCUMENTS. Each of the parties agrees to sign such
other and further documents as may be reasonably necessary or appropriate to
carry out the intentions expressed in this Lease.
46. ATTORNEYS' FEES. In the event of any judicial or other
adversarial proceeding between the parties concerning this Lease, to the
extent permitted by law, the prevailing party shall be entitled to recover
all of its reasonable attorneys' fees and other costs in addition to any
other relief to which it may be entitled. In addition, Lessor shall, upon
demand, be entitled to all reasonable attorneys' fees and all other costs
incurred in the preparation and service of any notice or demand hereunder,
whether or not a legal action is subsequently commenced. References in this
Lease to attorneys' fees and/or costs shall mean both the fees and costs of
independent counsel retained by either party with respect to the matter and
the fees and costs of their in-house counsel incurred in connection with the
matter.
47. ENTIRE AGREEMENT. This Lease and any other instruments or
agreements referred to herein, constitute the entire agreement between the
parties with respect to the subject matter hereof, and there are no other
representations, warranties or agreements except as herein
53
provided. Without limiting the foregoing, Lessee specifically acknowledges
that neither Lessor nor any agent, officer, employee or representative of
Lessor has made any representation or warranty regarding the projected
profitability of the business to be conducted on the Properties.
Furthermore, Lessee acknowledges that Lessor did not prepare or assist in the
preparation of any of the projected figures used by Lessee in analyzing the
economic viability and feasibility of the business to be conducted by Lessee
at the Properties.
48. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW. Lessee
acknowledges that this Lease was partially negotiated in the State of
Arizona, this Lease was executed and delivered in the State of Arizona, all
payments under this Lease will be delivered in the State of Arizona (unless
otherwise directed by Lessor or its successors) and there are substantial
contacts between the parties and the transactions contemplated herein and the
State of Arizona. Except for purposes of any action or proceeding concerning
the creation of this Lease and the rights and remedies of Lessor with respect
to the Properties (which actions or proceedings shall be conducted in the
state where the affected Property is located), for purposes of all other
actions or proceedings arising out of this Lease, the parties hereto
expressly submit to the jurisdiction of all federal and state courts located
in the State of Arizona. Lessee and Lessor consent that they may be served
with any process or paper by registered mail or by personal service within or
without the State of Arizona in accordance with applicable law. Furthermore,
each of Lessee and Lessor waive and agree not to assert in any such action,
suit or proceeding that it is not personally subject to the jurisdiction of
such courts, that the action, suit or proceeding is brought in an
inconvenient forum or that venue of the action, suit or proceeding is
improper. The creation of this Lease and the rights and remedies of Lessor
with respect to the Properties, as provided herein and by the laws of the
states in which the Properties are located, as applicable, shall be governed
by and construed in accordance with the internal laws of the states in which
the Properties are located, as applicable, without regard to principles of
conflicts of law. With respect to other provisions of this Lease, this Lease
shall be governed by the internal laws of the State of Arizona, without
regard to its principles of conflicts of law. Nothing contained in this
Section 48 shall limit or restrict the right of Lessor or Lessee to commence
any proceeding in the federal or state courts located in the states in which
the Properties are located to the extent Lessor or Lessee deems such
proceeding necessary or advisable to exercise remedies available under this
Lease.
49. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall be deemed an original.
50. MEMORANDUM OF MASTER LEASE. Concurrently with the execution
of this Lease, Lessor and Lessee are executing the Memorandum to be recorded
in the applicable real property records with respect to each of the
Properties.
51. NO BROKERAGE. Lessor and Lessee each represent and warrant
to each other that it has had no conversation or negotiations with any broker
concerning the leasing of the Properties. Each of Lessor and Lessee agrees
to defend, protect, indemnify, save and keep harmless the other, against and
from all liabilities, claims, losses, costs, damages and expenses, including
reasonable attorneys' fees, arising out of, resulting from or in connection
with its breach of the foregoing warranty and representation.
54
52. WAIVER OF JURY TRIAL AND PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES. LESSOR AND LESSEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT
TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS LEASE, THE RELATIONSHIP OF LESSOR AND LESSEE, LESSEE'S USE OR OCCUPANCY
OF ANY OF THE PROPERTIES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY
EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, LESSEE AND LESSOR EACH
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE
TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER
PARTY AND ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR
ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY
RESPECTIVE ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ONE PARTY
AGAINST THE OTHER OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR
EMPLOYEES OR ANY OF THEIR RESPECTIVE SUCCESSORS WITH RESPECT TO ANY MATTER
ARISING OUT OF OR IN CONNECTION WITH THIS LEASE OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO, EXCEPT THAT SUCH WAIVER ON THE PART OF LESSOR SHALL
NOT BE DEEMED TO OTHERWISE LIMIT, REDUCE OR PRECLUDE IN ANY WAY LESSOR'S
REMEDIES PURSUANT TO SECTION 23 HEREOF. THE WAIVER BY EACH PARTY OF ANY
RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT
DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT
OF THEIR BARGAIN.
53. RELIANCE BY LENDER. Lessee acknowledges and agrees that
Lender may rely on all of the representations, warranties and covenants set
forth in this Lease, that Lender is an intended third-party beneficiary of
such representations, warranties and covenants and that Lender shall have all
rights and remedies available at law or in equity as a result of a breach of
such representations, warranties and covenants, including to the extent
applicable, the right of subrogation.
54. DOCUMENT REVIEW. In the event Lessee makes any request upon
Lessor requiring Lessor, Lender or the attorneys of Lessor or Lender to
review and/or prepare (or cause to be reviewed and/or prepared) any
documents, plans, specifications or other submissions in connection with or
arising out of this Lease, then Lessee shall reimburse Lessor or its designee
promptly upon Lessor's demand therefor for all reasonable out-of-pocket costs
and expenses incurred by Lessor in connection with such review and/or
preparation plus a reasonable processing and review fee.
55. SUBSTITUTION. A. Subject to the fulfillment of all of the
conditions set forth in the following Section 55.B, Lessee shall have the
right to deliver a rejectable offer to Lessor (each, a "Rejectable
Substitution Offer") to substitute a Substitute Property for a Property if:
55
(i) the terms of Sections 21.C or 21.D of this Lease
permit such substitution (each, a "Casualty/Condemnation
Substitution"); or
(ii) the terms of Section 57 of this Lease permit such
substitution (each, an "Economic Substitution").
Each Rejectable Substitution Offer shall identify the proposed
Substitute Property in reasonable detail and contain a certificate executed
by a duly authorized officer of Lessee pursuant to which Lessee shall certify
that in Lessee's good faith judgment such proposed Substitute Property
satisfies as of the date of such notice, or will satisfy as of the date of
the closing of such substitution, all of the applicable conditions to
substitution set forth in this Section 55. Lessee agrees to deliver to
Lessor all of the diligence information and materials contemplated by the
provisions of Section 55.B of this Lease within 30 days after the delivery to
Lessor of a Rejectable Substitution Offer.
Lessor shall have 120 days from the delivery of a Rejectable
Substitution Offer notice satisfying the requirements of the preceding
paragraph to deliver to Lessee written notice of its election to either
accept or reject the Rejectable Substitution Offer. Lessor's failure to
deliver such notice within such time period shall be deemed to constitute
Lessor's acceptance of the Rejectable Substitution Offer. If the Mortgage
corresponding to the Property to be replaced is still outstanding, any
rejection of the Rejectable Substitution Offer by Lessor shall not be
effective unless it is consented to in writing by Lender and such written
consent is delivered to Lessee within such 120-day period. If Lessor accepts
the Rejectable Substitution Offer or is deemed to have accepted the
Rejectable Substitution Offer or if Lender does not consent in writing to any
rejection of the Rejectable Substitution Offer by Lessor as provided in this
Section 55, then Lessee shall complete such substitution, subject, however,
to the satisfaction of each of the applicable terms and conditions set forth
in this Section 55.
If Lessor rejects the Rejectable Substitution Offer and Lessee has
satisfied the applicable requirements for substitution set forth in this
Section 55, and such rejection is consented to by Lender as provided in this
Section 55, then:
(X) if such rejected Rejectable Substitution Offer was
made with respect to a Casualty/Condemnation Substitution, the
provisions of the next to last paragraphs of either Section 21.D or
Section 21.H, as applicable, shall apply; and
(Y) if such rejected Rejectable Substitution Offer was
made with respect to a Economic Substitution, this Lease shall
terminate with respect to the Property which Lessee proposed to
replace on the next scheduled Base Monthly Rental payment date (the
"Early Substitution Termination Date") provided Lessee has paid to
Lessor all Base Annual Rental, Additional Rental and all other sums
and obligations then due and payable under this Lease as of such
Early Substitution Termination Date.
On the Early Substitution Termination Date, and provided
Lessee shall have paid to Lessor all Base Annual Rental, Additional
Rental and other sums and obligations then due and payable under this
Lease as of the Early Substitution Date:
56
(i) the Base Annual Rental then in effect shall be
reduced by an amount equal to the product of the Applicable
Percentage for such Property and the Base Annual Rental then in
effect; and
(ii) all obligations of Lessor and Lessee shall cease as
of the Early Substitution Termination Date with respect to such
Property; provided, however, Lessee's obligations to Lessor with
respect to such Property under any indemnification provisions of this
Lease with respect to such Property (including, without limitation,
Sections 16 and 19 of this Lease) and Lessee's obligations to pay any
sums (whether payable to Lessor or a third party) accruing under this
Lease with respect to such Property prior to the Early Substitution
Termination Date shall survive the termination of this Lease with
respect to such Property or otherwise. This Lease shall, however,
continue in full force and effect with respect to all other
Properties.
B. The substitution of a Substitute Property for a
Property pursuant to the preceding Section 55.A shall be subject to
the fulfillment of all of the following terms and conditions:
(i) The Substitute Property must:
(1) be a Permitted Facility, in good condition
and repair, ordinary wear and tear excepted, and located in
the same state as the Property to be replaced or in another
state acceptable to Lessor in Lessor's sole discretion;
(2) have a Fixed Charge Coverage Ratio (with
the definitions of Section 8.A being deemed to be modified,
as contemplated in the following sentence, to provide for a
calculation of a "Fixed Charge Coverage Ratio" for the
Substitute Property only) for the FCCR Period greater than
the Fixed Charge Coverage Ratio for the Property to be
replaced for such FCCR Period. For purposes of this subitem
(2), the definitions set forth in Section 8.A of this Lease
with respect to the calculation of the Aggregate Fixed
Charge Coverage Ratio shall be deemed modified as applicable
to provide for the calculation of a Fixed Charge Coverage
Ratio for each Property on an individual basis rather than
on an aggregate basis with the other Properties, including,
without limitation, modifying the definitions of Debt,
Depreciation and Amortization and Net Income to apply only
to the Property for which such calculation is being made,
and the Operating Lease Expense with respect to this Lease
for each such Property shall equal the Applicable Percentage
for each Property multiplied by the Base Annual Rental then
in effect;
(3) have a fair market value no less than the
greater of the then fair market value of the Property being
replaced or the fair market value of such Property as of the
Effective Date (in each case, determined without regard to
this Lease, but assuming that while this Lease has been in
effect, Lessee has complied with all of the terms and
conditions of this Lease), as determined by Lessor, and
consented to by Lender, utilizing the same valuation method
as used in connection with the closing of the transaction
described in the Sale-Leaseback
57
Agreement, which was based upon the sum of (x) the fair
market value of the land comprising such Property and (y)
the replacement cost of the improvements located thereon;
(4) have improvements which have a remaining
useful life substantially equivalent to, or better than,
that of the improvements located at the Property to be
replaced; and
(5) be conveyed to Lessor (or, if directed by
Lessor, to Lessor and a person designated to acquire the
remainderman interest) by special or limited warranty deed,
free and clear of all liens and encumbrances, except such
matters as are reasonably acceptable to Lessor (the
"Substitute Property Permitted Exceptions");
(ii) Lessor shall have inspected and approved the
Substitute Property utilizing Lessor's customary site inspection and
underwriting approval criteria. Lessee shall have reimbursed Lessor
and Lender for all of their reasonable costs and expenses incurred
with respect to such proposed substitution, including, without
limitation, Lessor's third-party and/or in-house site inspectors'
costs and expenses with respect to the proposed Substitute Property.
Lessee shall be solely responsible for the payment of all costs and
expenses resulting from such proposed substitution, regardless of
whether such substitution is consummated, including, without
limitation, the cost of title insurance and endorsements for both
Lessor and Lender, survey charges, stamp taxes, mortgage taxes,
transfer fees, escrow and recording fees, the cost of environmental
policies or endorsements to the Environmental Policies as applicable,
income and transfer taxes imposed on Lessor as a result of such
substitution and the reasonable attorneys' fees and expenses of
counsel to Lessee, Lessor and Lender;
(iii) Lessor shall have received a preliminary title
report and irrevocable commitment to insure title by means of an ALTA
extended coverage owner's policy of title insurance (or its
equivalent, in the event such form is not issued in the jurisdiction
where the proposed Substitute Property is located) for the proposed
Substitute Property issued by Title Company and committing to insure
Lessor's good and marketable title in the proposed Substitute
Property, subject only to the Substitute Property Permitted
Exceptions and containing endorsements substantially comparable to
those required by Lessor at the Closing (as defined in the Sale-
Leaseback Agreement) and Lender shall have received such title report
and irrevocable commitment to insure its first priority lien
encumbering the proposed Substitute Property as Lender shall
reasonably require;
(iv) Lessor shall have received a current ALTA survey of
the proposed Substitute Property, the form of which shall be
comparable to those received by Lessor at the Closing and sufficient
to cause the standard survey exceptions set forth in the title policy
referred to in the preceding subsection to be deleted;
(v) Lessor shall have received an environmental
insurance policy with respect to the proposed Substitute Property,
or to the extent applicable, an endorsement to the
58
Environmental Policies, the form and substance of which shall be
satisfactory to Lessor in its sole discretion;
(vi) Lessee shall deliver, or cause to be delivered, with
respect to Lessee and the Substitute Property, opinions of Counsel
(as defined in the Sale-Leaseback Agreement) in form and substance
comparable to those received at Closing (but also addressing such
matters unique to the Substitute Property as may be reasonably
required by Lessor);
(vii) no Event of Default shall have occurred and be
continuing under any of the Sale-Leaseback Documents;
(viii) Lessee shall have executed such documents as may be
reasonably required by Lessor as a result of such substitution,
including amendments to this Lease and the Memorandum (the
"Substitute Documents"), all of which documents shall be in form and
substance reasonably satisfactory to Lessor;
(ix) the representations and warranties set forth in the
Substitute Documents, this Lease and the Sale-Leaseback Agreement
applicable to the proposed Substitute Property shall be true and
correct in all material respects as of the date of substitution, and
Lessee shall have delivered to Lessor an officer's certificate
certifying to that effect;
(x) Lessee shall have delivered to Lessor certificates
of insurance showing that insurance required by the Substitute
Documents is in full force and effect;
(xi) Lessor shall have obtained an endorsement to the
policy of residual value insurance issued to Lessor and Lender in
connection with the transaction described in the Sale-Leaseback
Agreement with respect to the proposed Substitute Property, which
endorsement shall be in form and substance reasonably satisfactory
to Lessor and Lender; and
(xii) Lender shall have consented to the substitution of
the proposed Substitute Property.
C. Upon satisfaction of the foregoing conditions set forth in
Section 55.B and provided Lessor has accepted the Rejectable Substitution
Offer:
(i) the proposed Substitute Property shall be deemed
substituted for the Property to be replaced;
(ii) the Substitute Property shall be referred to herein
as a "Property" and included within the definition of "Properties";
(iii) the Substitute Documents shall be dated as of the
date of the substitution; and
(iv) Lessor shall convey fee simple insurable title to
the Property to be replaced to Lessee or a designee of Lessee "as-is"
by special or limited warranty deed, subject to all matters of record
(except for the Mortgage corresponding to the Property to be replaced
and
59
any other consensual liens granted by Lessor other than those granted by
Lessor at the request of Lessee, which shall be released at or before the
delivery of such special or limited warranty deed) and all other matters to
which Lessee has consented to or for which Lessee is obligated to satisfy
under the terms of this Lease, and without representation or warranty.
56. OPTION TO PURCHASE PROPERTIES. Lessee shall have the option,
but not the obligation, which option is to be exercised no later than July
31, 2019, to elect to purchase all of the Properties then subject to this
Lease for 100% of their Fair Market Value (as defined below), less closing
and transaction costs in an amount not to exceed 5% of such Fair Market
Value. Lessor shall have the right, but not the obligation, to accept
Lessee's offer. Lessee shall elect such option by giving written notice (the
"Option Notice") to Lessor of its intention to do so, and the closing of such
purchase must occur within 180 days prior to the end of the Initial Term (the
"Purchase Period").
The term "Fair Market Value" means the fee simple fair market value
of all of the Properties determined as follows: within 90 days of Lessor's
receipt of the Option Notice, Lessor shall, at Lessee's sole expense, retain
an independent MAI appraiser to prepare an appraisal of the fee simple fair
market value of the Properties, including any additions or renovations
thereto. In determining the fair market value of the Properties, the
appraiser shall utilize the cost, income and sales comparison approaches to
value. In utilizing the income approach, the appraiser shall determine the
"leased fee" value of the Properties, which shall be arrived at by
considering (i) the income that would be produced by this Lease through the
end of the fully extended Lease Term, and (ii) any other factors relating to
such approach which the appraiser shall deem relevant in his sole discretion,
including, without limitation, determining the residual value of the
Properties following the expiration of the Lease Term. If within 20 days
after being notified of the result of such appraisal Lessee elects to reject
that appraisal, then the first appraisal shall become null and void and
Lessor shall nominate to Lessee a list of not less than three independent MAI
appraisers who are experienced with appraising property similar to the
Properties, and Lessee shall select one such appraiser. Within 10 days of
such selection, Lessor shall retain such appraiser to prepare an appraisal of
the Properties in the same manner described above, and the resulting
determination of such appraiser shall be the "Fair Market Value" of the
Properties for purposes of this Section 56.
Upon exercise of this option, Lessor and Lessee shall open an escrow
account with a recognized title insurance or trust company selected by
Lessor. Such escrow shall be subject to the standard escrow instructions of
the escrow agent, to the extent they are not inconsistent herewith. At or
before the close of escrow, Lessor shall deliver to the escrow agent its
special warranty deeds conveying to Lessee all of Lessor's right, title and
interest in the Properties free and clear of all liens and encumbrances
except liens for taxes and assessments and easements, covenants and
restrictions of record which were attached to the Properties as of the
Effective Date, attached during the Lease Term through Lessee's action or
inaction, as applicable, have been granted by Lessor in lieu of a taking by
the power of eminent domain or the like, have been approved by Lessee, or
which do not materially adversely affect the use of the Properties as
Permitted Facilities. In the event Lessor is unable to convey title as
required, Lessee shall have the right to accept such title as Lessor can
convey, seek specific performance or elect not to consummate its exercise of
the option, in which case the option shall lapse and this Lease shall remain
in full force and effect. Both Lessor and Lessee agree to execute such
instruments, and
60
take such actions, as may be reasonably necessary or appropriate to
consummate the sale of the Properties in the manner herein provided.
Simultaneously with the closing of the option, Lessor shall prepay the
outstanding principal balance of the Notes and all other sums due under the
Loan Documents and cause the Mortgages to be released.
All costs of the exercise of the option set forth in this Section,
including, without limitation, escrow fees, title insurance fees, recording
costs or fees, attorneys' fees (including those of Lessor), appraisal fees,
stamp taxes and transfer fees, shall be borne by Lessee. Lessee shall
continue to pay and perform all of its obligations under this Lease until the
close of escrow, which in no event shall occur after the date of the
expiration of the Initial Term. The purchase price paid by Lessee in
exercising this option shall be paid to Lessor or to such Person as Lessor
may direct at closing in immediately available funds. Lessee shall not have
the right to exercise this option or consummate the exercise thereof if at
the time of exercise or consummation an Event of Default shall have occurred
and be continuing or if any condition shall exist which upon the giving of
notice or the passage of time, or both, would constitute an Event of Default.
The failure of Lessee to consummate the purchase of the Properties
as contemplated herein shall not release Lessee from its obligations under
this Lease and the Lease shall remain in full force and effect until the
expiration of the Lease Term or applicable extension period. The escrow
shall close within the Purchase Period or Lessee's option to purchase the
Properties shall terminate. The closing date may be extended for a
reasonable period of time to permit Lessor to cure title defects or to permit
either party to cure any other defects or defaults provided each party is
diligently seeking to cure such defect or default and Lessee continues to
perform its obligations hereunder.
Lessee may not sell, assign, transfer, hypothecate or otherwise
dispose of the option granted herein or any interest therein, except in
conjunction with a permitted assignment of Lessee's entire interest herein
and then only to the assignee thereof. Any attempted assignment of this
option which is contrary to the terms of this paragraph shall be deemed to be
a default under this Lease and the option granted herein shall be void.
57. ECONOMIC INFEASABILITY. During the period of time commencing
with the third anniversary of the Effective Date and ending at the end of the
Initial Term, but provided that no Event of Default shall have occurred and
be continuing, Lessee shall have the option, but not the obligation, with
respect to each Property with a "Fixed Charge Coverage Ratio" (determined on
a per Property basis as contemplated by Section 55.B(i)(2)) for the 12
calendar months immediately preceding such third anniversary equal to or less
than 1.1:1, to either:
(i) make a rejectable offer to Lessor (an "Economic
Substitution Offer") to substitute a Substitute Property for such
Property pursuant to the terms and conditions of Section 55 of this
Lease; or
(ii) make a payment to Lessor (an "Economic Termination
Payment") to terminate this Lease with respect to such Property in
an amount equal to the sum of (x) the Applicable Percentage for such
Property multiplied by the aggregate Base Annual Rental and
Additional Rental for the remaining Initial Term, and (y) the
Prepayment Charge corresponding to such Property;
61
provided, however, Lessee may not exercise the rights set forth in
this Section 57 with respect to more than six of the Properties in
the aggregate. All Economic Termination Payments shall be made on
a regularly scheduled Base Monthly Rental payment date upon no less
than 30 days prior written notice from Lessee to Lessor.
Lessor shall have 120 days from the delivery of an Economic
Substitution Offer satisfying the requirements of Section 55.A to accept or
reject such offer in its sole discretion. Lessor's failure to deliver notice
of acceptance or rejection of such offer within such time period shall be
deemed to constitute Lessor's acceptance of such Economic Substitution Offer.
If the Mortgage corresponding to such Property is still outstanding, any
rejection of the Economic Substitution Offer by Lessor shall not be effective
unless it is consented to in writing by Lender, and such written consent is
delivered to Lessee within that 120-day period (Lender shall be deemed to
have objected to Lessor's rejection of such Economic Substitution Offer if
Lender does not consent to or object to Lessor's rejection of such Economic
Substitution Offer within such 120-day period).
If Lessor accepts the Economic Substitution Offer or is deemed to
have accepted the Economic Substitution Offer or if any rejection of the
Economic Substitution Offer by Lessor is not consented to in writing by
Lender, then, within 120 days of the delivery of such Economic Substitution
Offer, Lessee shall complete such substitution, subject, however, to the
satisfaction of each of the applicable terms and conditions set forth in this
Section 57. Upon such substitution all obligations of either party hereunder
with respect to the Property being replaced shall cease as of the closing of
such substitution; provided, however, Lessee's obligations to the Indemnified
Parties under any indemnification provisions of this Lease with respect to
such Property (including, without limitation, Sections 16 and 19) and
Lessee's obligations to pay any sums (whether payable to Lessor or a third
party) accruing under this Lease with respect to such Property prior to the
closing of such substitution shall survive the termination of this Lease with
respect to such Property. This Lease shall, however, continue in full force
and effect with respect to all other Properties.
If Lessor rejects the Economic Substitution Offer and such rejection
is consented to by Lender, then (i) on the next scheduled Base Monthly Rental
payment date, Lessee shall pay to Lessor all Base Annual Rental, Additional
Rental and other sums and obligations then due and payable under this Lease,
(ii) the Base Annual Rental then in effect shall be reduced by an amount
equal to the product of the Applicable Percentage for such Property and the
Base Annual Rental then in effect, and (iii) provided Lessee shall have paid
Lessor all sums described in the preceding subitem (i), all obligations of
either party hereunder shall cease as of the next scheduled Base Monthly
Rental payment date; provided, however, Lessee's obligations to Lessor with
respect to such Property under any indemnification provisions of this Lease
with respect to such Property (including, without limitation, Sections 16 and
19) and Lessee's obligations to pay any sums (whether payable to Lessor or a
third party) accruing under this Lease with respect to such Property prior to
such termination shall survive the termination of this Lease. This Lease
shall, however, continue in full force and effect with respect to all other
Properties.
If the event Lessee makes an Economic Termination Payment as
contemplated above, (1) on the next scheduled Base Monthly Rental payment
date, Lessee shall pay to Lessor all Base Annual Rental, Additional Rental
and other sums and obligations then due and payable under
62
this Lease, (2) the Base Annual Rental then in effect shall be reduced by an
amount equal to the product of the Applicable Percentage for such Property
and the Base Annual Rental then in effect, and (3) provided Lessee shall have
paid Lessor all sums described in the preceding subitem (1), all obligations
of either party hereunder with respect to such Property shall cease as of the
next scheduled Base Monthly Rental payment date; provided, however, Lessee's
obligations to Lessor with respect to such Property under any indemnification
provisions of this Lease with respect to such Property (including, without
limitation, Sections 16 and 19) and Lessee's obligations to pay any sums
(whether payable to Lessor or a third party) accruing under this Lease with
respect to such Property prior to such termination shall survive the
termination of this Lease. This Lease shall, however, continue in full force
and effect with respect to all other Properties.
58. STATE SPECIFIC PROVISIONS; LIMITATION OF INTEREST AND LATE
CHARGE. (a) The provisions and/or remedies which are set forth on Schedule
I shall be deemed a part of and included within the terms and conditions of
this Lease.
(b) Notwithstanding anything to the contrary contained in this
Lease with respect to the payment by Lessee to Lessor of interest at the
Default Rate or otherwise and/or any late charges, Lessee shall not be
required to pay any such interest or late charges in excess of the limitation
imposed by applicable law prescribing maximum rates of interest then in
effect.
59. CONFIDENTIAL INFORMATION. (a) Confidential Information
may be disclosed to Lessor and Lender and their respective authorized
employees, agents and representatives, lenders, purchasers, transferees,
assignees, servicers, participants, investors, analysts and Governmental
Authorities with regulatory authority over Lender and selected rating
agencies with a need to know (collectively, the "Permitted Recipients"),
orally or in writing, by inspection or by permissive observation, or in any
other way, but no disclosure will allow the Permitted Recipients to further
disclose the Confidential Information or to use it except as permitted by
this Lease. Confidential Information does not include:
(i) information which was in the public domain, publicly
available and publicly known at the time of disclosure, including,
without limitation, the reports filed with the SEC as contemplated
by Section 8.A of the Sale-Leaseback Agreement and Section 31 of this
Lease,
(ii) information which subsequently becomes public
knowledge as a result of a disclosure by Lessee, or in any way not
involving any breach of this Lease by Lessor, as of the date of its
becoming public, or
(iii) information which Lessor or Lender obtains from
sources other than Lessee or its Affiliates in any manner not
involving any breach of this Section by Buyer or Lender.
(b) Lessee grants to the Permitted Recipients the nonexclusive
right to review and use the Confidential Information in order to understand
the operations of Lessee and its Affiliates in connection with the
transactions contemplated by this Lease. Except as otherwise contemplated by
subsection (c) below:
63
(i) the Confidential Information may not be used for any
other purpose or by any other Person, and the Confidential
Information may not be copied, reproduced, or disseminated except as
permitted in this Lease;
(ii) Lessor may possess, review, analyze, and use the
Confidential Information only while, and only in connection with, its
discussions and negotiations with respect to the purchase of the
Properties; and
(iii) except to any Permitted Recipient, Lessor will not
reveal, allow the release or discovery of, or disclose the
Confidential Information, or any part of it, to any person, firm,
corporation, or any other entity or individual without specific prior
written consent from Lessee.
The foregoing prohibitions on disclosure and release apply whether
or not the Confidential Information may be classified as a trade secret.
Lessor will in good faith treat the Confidential Information with at least
the same care that Lessee and other similar businesses use in the protection
of their own undisclosed and proprietary information, and the Confidential
Information will be disclosed to Permitted Recipients. Lessor will, and will
require Lender to, advise such Permitted Recipients who are necessarily given
access to Confidential Information of its confidential and proprietary nature
and of the existence and importance of this Lease and use reasonable efforts
to protect the secrecy of such Confidential Information and to comply with
the nondisclosure terms of this Lease, and Lessor will, and will require
Lender to, require that each Permitted Recipient of Proprietary Confidential
Information enter into a customary and commercially reasonable written
confidentiality agreement pursuant to which they will agree not to disclose
such Proprietary Confidential Information in violation of the provisions of
this Section 59.
All tangible records and memorializations of Confidential Information
are the exclusive property of Lessee. Upon assignment by Lessor or any
termination of this Lease, Lessor will immediately cease all use of the
Confidential Information in any way. All Confidential Information then in
the possession of Lessor shall be immediately returned to Lessee or its duly
authorized representative, and Lessor agrees to use reasonable efforts to
return to Lessee all Confidential Information then in the possession of
Lender.
(c) Notwithstanding the foregoing, nothing in this Section 59
shall limit or prevent:
(i) Lessor and/or Lender from utilizing Confidential
Information delivered to Lessor or Lender pursuant to the Sale-
Leaseback Agreement or this Lease, including, without limitation,
Store Income Statements delivered to Lessor or Lender pursuant to the
Sale-Leaseback Agreement or Section 31 of this Lease, subject to the
requirements of this Section 59;
(ii) Lender from disclosing, distributing and/or making
Confidential Information available to any Permitted Recipient as
necessary in connection with any Transfer, Participation and/or
Securitization as contemplated by Section 8.C of this Lease provided
that Lessor shall require Lender to (1) advise each such Permitted
Recipient of the confidential nature of such Confidential
Information, (2) require that each Permitted
64
Recipient of Proprietary Confidential Information enter into a
customary and commercially reasonable written confidentiality
agreement as contemplated by Section 59(b), and (3) request, to the
extent reasonably practicable, that each Permitted Recipient of
Confidential Information which is not Propriety Confidential
Information enter into a customary and commercially reasonable
written confidentiality agreement pursuant to which they will agree
not to disclose such Confidential Information in violation of the
provisions of this Section 59;
(iii) Lessor and/or Lender from utilizing Confidential
Information in connection with the exercise of Lessor's rights and
remedies under this Lease following the occurrence and during the
continuance of an Event of Default;
(iv) Lessor and/or Lender from disclosing Confidential
Information as required by court order or subpoena or as otherwise
required by any Governmental Authority under applicable law; and/or
(v) Lessor from delivering any such Confidential
Information to prospective purchasers or mortgagees of Lessor's
interest in the Properties or in Lessor, and their respective
attorney's, consultants, representatives or agents, provided that (x)
in the case of prospective purchasers, Lessor shall obtain a
commercially reasonable written confidentiality agreement from any
such prospective purchaser pursuant to which such prospective
purchaser will agree not to disclose any such Confidential
Information in violation of the provisions of this Section 59, and
(y) in the case of prospective mortgagees, Lessor shall advise such
mortgagees of the confidential nature of such Confidential
Information and shall request that such mortgagee enter into a
commercially reasonable written confidentiality agreement pursuant
to which such mortgagee will agree not to disclose such Confidential
Information in violation of the provisions of this Section 59.
65
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease
as of the date first above written.
LESSOR:
COUNTRY STORES PROPERTY I, LLC,
a Delaware limited liability
company
By Country Stores Equity I,
LLC, a Delaware limited
liability company, its
member
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Printed Name: Xxxxx Xxxxxxx
-------------------
Its: Vice President
----------------------------
LESSEE:
CRACKER BARREL OLD COUNTRY STORE,
INC., a Tennessee corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Printed Name: Xxxxx X. Xxxxxxxxxx
--------------------
Its: Senior Vice President
----------------------------
Lessee's Tax Identification
Number: 00-0000000
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
I, the undersigned authority, a Notary Public in and for said County
in said State, hereby certify that Xxxxx Xxxxxxx, whose name as Vice President
of Country Stores Equity I, LLC a Delaware limited liability company, member
of Country Stores Property I, LLC, a Delaware limited liability company, on
behalf of the limited liability company, is signed to the foregoing Master
Lease, and who is known to me, acknowledged before me on this day that, being
informed of the contents of the Master Lease, [s]he, as such officer and with
full authority, executed the same voluntarily for and as the act of the
corporation and limited liability company.
Given under my hand and official seal this 28 day of July, 2000.
/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Notary Public
My Commission Expires:
July 17, 2002
-----------------------------
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
I, the undersigned authority, a Notary Public in and for said County
in said State, hereby certify that Xxxxx X. Xxxxxxxxxx, whose name as Sr.
Vice President of Cracker Barrel Old Country Store, Inc., a Tennessee
corporation, on behalf of the corporation, is signed to the foregoing Master
Lease, and who is known to me, acknowledged before me on this day that, being
informed of the contents of the Master Lease, [s]he, as such officer and with
full authority, executed the same voluntarily for and as the act of the
corporation and limited liability company.
Given under my hand and official seal this 28 day of July, 2000.
/s/ Xxxxx X. Xxxxxxxx
--------------------------------
Notary Public
My Commission Expires:
July 17, 2002
-----------------------------
[Exhibits and Schedules have been omitted.]
