EXHIBIT 10(m)
MASTER LEASE
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THIS MASTER LEASE (this "Lease") is made as of September 29, 2000
(the "Effective Date"), by and between CROWN PRINCE PROPERTIES, LLC, a
Delaware limited liability company ("Lessor"), whose address is c/o U.S.
Realty Advisors, LLC, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, and CROWN CENTRAL PETROLEUM CORPORATION, a Maryland corporation
("Lessee"), whose address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
W I T N E S S E T H :
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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 Master 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" has the meaning set forth in Section 16.C.
"Additional Rental" has the meaning set forth 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 Fixed Charge Coverage Ratio" shall have the meaning set
forth in Section 8.B.
"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, UST codes,
ordinances, requirements and standards, all requirements relating to the
handling and disposal of Hazardous Materials or Regulated Substances,
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.
"Applicable Rent Reduction Percentage" means, with respect to any
Property, a fraction, the numerator of which shall be the Purchase Price
for such Property, and the denominator of
which shall be the sum of the Purchase Price for all of the Properties
then subject to this Lease, including such Property.
"Approved Institution" means any domestic federal or state charted
commercial bank located in any of the cities listed on the attached
Schedule III and having, at the time of selection, (i) a long-term
deposit or long-term unsecured debt rating of at least A or its
equivalent issued by Standard & Poors Rating Group, ▇▇▇▇▇'▇ 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 $1,628,586.48.
"Base Monthly Rental" means an amount equal to 1/12 of the
applicable Base Annual Rental.
"Business Day" means a day on which banks located in Phoenix,
Arizona are not required or authorized to remain closed.
"Casualty" shall have the meaning set forth in Section 21.A.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101
et seq., as amended.
"Damage Amount" has the meaning set forth in Section 23.B(vi).
"Default Rate" means 14% per annum or the highest rate permitted by
law, whichever is less.
"Disclosures" has the meaning set forth in Section 8.E.
"Effective Date" has the meaning set forth in the Preamble.
"Environmental Insurer" means American International Specialty
Lines Insurance Company or such other insurer providing Environmental
Policies reasonably acceptable to Lessor.
"Environmental Laws" means any present and future federal, state
and local laws, statutes, ordinances, rules, regulations and the like,
as well as common law, relating to Hazardous Materials, Regulated
Substances or USTs and/or the protection of human health or the
environment, by reason of a Release or a Threatened Release of Hazardous
Materials, Regulated Substances or USTs or relating to liability for or
costs of Remediation or prevention of Releases. "Environmental Laws"
includes, but is not limited to, the following statutes, as amended, any
successor thereto, and any regulations, 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 USTs);
the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act;
the Toxic Substances Control Act; the Safe Drinking Water Act; the
Occupational
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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 or entity, whether or not in
connection with transfer of title to or interest in property; imposing
conditions or requirements relating to Hazardous Materials, Regulated
Substances or USTs in connection with permits or other authorization
for lawful activity; relating to nuisance, trespass or other causes of
action related to Hazardous Materials, Regulated Substances or USTs;
relating to the handling and disposal of Hazardous Materials or
Regulated Substances; 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, Regulated Substances or USTs in, on, under or above any of
the Properties.
"Environmental Liens" has the meaning set forth in Section
16.D(ix).
"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.
"Event of Default" has the meaning set forth in Section 23.A.
"Event of Default Purchase Amount" has the meaning set forth in
Section 23.B(vi).
"Event of Default Rejectable Offer" has the meaning set forth in
Section 23.B(vi).
"Excluded Personalty" means items of personal property which have
Lessee's trade names, trademarks and/or trade dress on them.
"FCCR Period" means the twelve month period of time immediately
preceding the first day of the month in which Lessee gives written
notice to Lessor that Lessee is proposing to substitute a Substitute
Property as permitted by Section 55.A.
"Fiscal Quarter" has the meaning set forth in Section 8.A.
"Fiscal Year" has the meaning set forth in Section 8.C.
"GAAP" means generally accepted accounting principles consistently
applied.
"Governmental Authority" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or quasi-
governmental authority of the United States, the states in which the
Properties are located or any political subdivision thereof.
"Hazardous Materials" means (i) any toxic substance or hazardous
waste, substance, solid waste, or related material, or any pollutant or
contaminant; (ii) radon gas, asbestos in any form which is or could
become friable, urea formaldehyde foam insulation, transformers or other
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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 may be 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 may 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, Environmental Insurer,
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, Environmental
Insurer, Remainderman or Lender, and all employees, agents, servants,
representatives, contractors, subcontractors, affiliates, subsidiaries,
participants, successors and assigns of any of the foregoing, including,
but not limited to, any successors by merger, consolidation or
acquisition of all or a substantial portion of the assets and business
of Lessor, Environmental Insurer, Remainderman or Lender, as applicable.
"Lease Term" shall have the meaning described in Section 4.
"Lender" means FFCA Funding 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.
"Lessee Entities" means, collectively, Lessee and all Affiliates of
Lessee.
"Lessor Entities" means, collectively, Lessor and all Affiliates of
Lessor.
"Letter of Credit" shall have the meaning set forth in Section
23.A(xi) 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
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in settlement and damages of whatever kind or nature (including, without
limitation, attorneys' fees, court costs and other costs of defense).
"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 50% of the then current replacement cost of such
improvements and the restoration of which cannot reasonably be completed
within 120 days from the occurrence of such damage or destruction, both
as reasonably determined by Lessor.
"Material Taking" means a Taking of the whole of any of the
Properties, other than for temporary use, or a Taking of any portion of
any of the Properties (other than for temporary use) which will: (i)
materially impair access to such Property in Lessor's reasonable
judgment; (ii) result in such Property failing to satisfy the parking
requirements under Applicable Regulations; or (iii) result in the
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 October 1, 2020.
"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
other mortgage lien instruments 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.
"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.
"Other Agreements" means, collectively, all agreements and
instruments now or hereafter entered into between, among or by (1) any
of the Lessee Entities, and, or for the benefit of, (2) Lessor;
provided, however, the term Other Agreements shall not include this
Lease and the other Sale-Leaseback Documents.
"Participation" means the granting of any participations in any
document evidencing loan obligations or any or all servicing rights with
respect thereto.
"Permitted Amounts" shall mean, with respect to any given level of
Hazardous Materials or Regulated Substances, that level or quantity of
Hazardous Materials or Regulated Substances in any form or combination
of forms, the use, storage or release of which does not constitute a
violation of any Environmental Laws and is customarily employed in the
ordinary course of, or associated with, gasoline service stations or
convenience stores located in the states in which the Properties are
located.
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"Permitted Facility" means a convenience store and gasoline
station, with ancillary uses customary to the industry.
"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 and other tangible personal property listed on Schedule I
to the Sale-Leaseback Agreement; provided, however, the (i) term
"Personalty" shall not include the HVAC, walk-in coolers, walk-in
freezers, supply fans, exhaust fans, air ducts, hoods, vents, built-in
sinks, built-in countertops, plumbing and electrical fixtures, sign
poles and lighting poles, USTs, above and below ground gas equipment and
gas canopies, all of which items are intended to be fixtures as such
term is used within the definition of "Properties", and (ii) the term
"Personalty" shall not include the Excluded Personalty.
"Prepayment Charges" means, for purposes of this Lease, an amount
equal to any prepayment premium or charge, yield maintenance payment, or
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.
"Properties" means, collectively, (i) 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,
and all rights, privileges and appurtenances associated therewith, (ii)
all buildings, structures, fixtures and other improvements now or
hereafter located on such real estate, including, without limitation,
all USTs, above and below ground gas equipment and gas canopies, and
(iii) all Personalty.
"Property" means any one of the Properties (including, without
limitation, the Personalty located at or on such Property).
"Property Monthly Retail P&L Report" means a report in
substantially the form attached hereto as Exhibit C.
"Purchase Price" means, with respect to any Property, the amount of
the purchase price corresponding to such Property as set forth on
Exhibit A to the Sale-Leaseback Agreement.
"Questionnaires" means the environmental questionnaires completed
by Lessee with respect to each of the Properties and submitted to
Environmental Insurer in connection with the issuance of the
Environmental Policies.
"Regulated Substances" means "petroleum" and "petroleum-based
substances" or any similar terms described or defined in any of the
Environmental Laws and any applicable federal, state, county or local
laws applicable to or regulating USTs.
"Rejectable Offer" has the meaning set forth in Section 21.C.
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"Rejectable Substitution Offer" has the meaning set forth in
Section 55.A.
"Release" means any presence, release, deposit, discharge,
emission, leaking, spilling, seeping, migrating, injecting, pumping,
pouring, emptying, escaping, dumping, disposing or other movement of
Hazardous Materials, Regulated Substances or USTs.
"Remainderman" means Tiara Remainder, LLC, a Delaware limited
liability company, which owns a remainder interest in 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 and all rights, privileges and appurtenances associated
therewith, 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, Regulated Substances or
USTs, any actions to prevent, cure or mitigate any Release, any action
to comply with any Environmental Laws or with any permits issued
pursuant thereto, any inspection, investigation, study, monitoring,
assessment, audit, sampling and testing, laboratory or other analysis,
or any evaluation relating to any Hazardous Materials, Regulated
Substances or USTs.
"Sale-Leaseback Agreement" means that certain Sale-Leaseback
Agreement dated as of the date hereof among Lessor, Lessee, Crown
Stations, Inc., a Maryland corporation and Fast Fare, Inc., a Delaware
corporation, with respect to the Properties.
"Sale-Leaseback Documents" means the Sale-Leaseback Agreement, this
Lease, the Memorandum, the Acknowledgement and all other documents
executed in connection therewith or contemplated thereby.
"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.
"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, all buildings, structures, fixtures
and other improvements located thereon, including, without limitation,
all USTs, above and below ground gas equipment and gas canopies, and all
machinery, appliances, furniture, equipment, trade fixtures and other
tangible personal property located at or on such real estate (other than
Excluded Personalty). For purposes of clarity, where two or more
parcels of real property comprise a
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Substitute Property, such parcels shall be aggregated and deemed to
constitute the Substitute Property for all purposes of this Lease.
"Taking" shall have the meaning set forth in Section 21.A.
"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 LandAmerica Financial Group 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, or any or all servicing rights with respect
thereto.
"USTs" means any one or combination of tanks and associated piping
systems used in connection with the storage, dispensing and general use
of Regulated Substances.
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, except as expressly set forth
below, 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. Lessor warrants that, as of
the Effective Date, it has not conveyed or leased any of the Properties
to any party other than Lessee except for the granting of the liens to
Lender set forth in the Mortgages.
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;
(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.
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▇. ▇▇▇▇▇▇ and Lessee acknowledge and agree that the Lease Term,
including any term extensions provided for in this Lease, is less than
the remaining economic life of each of the Properties.
C. Lessee waives any claim or defense based upon the
characterization of this Lease as anything other than a true lease and
irrevocably waives any claim or defense which asserts that this Lease is
anything other than a true lease. Lessee covenants and agrees that it
will not assert that this Lease is anything but a true lease. Lessee
stipulates and agrees not to challenge the validity, enforceability or
characterization of the lease of the Properties as a true lease and
further stipulates and agrees that nothing contained in this Lease
creates or is intended to create a joint venture, partnership (either de
jure or de facto), equitable mortgage, trust, financing device or
arrangement, security interest or the like. Lessee shall support the
intent of the parties that the lease of the 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 waives 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 waives any claim or defense which
asserts that this Lease is anything other than a master lease. Lessee
covenants and agrees 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 stipulates and agrees
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
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.
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 entering into
this Lease.
4. Lease Term. The Lease Term for all of the Properties shall
commence as of the Effective Date and shall expire on October 31, 2020,
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.
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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
and is qualified to do business in each of the states in
which the Properties are located. All necessary corporate
action has been taken to authorize the execution, delivery
and performance by Lessor of this Lease and the other
documents, instruments and agreements provided for herein.
(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
applicable bankruptcy laws or other laws affecting the rights
of creditors.
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
any jurisdiction where such qualification is required. All
necessary corporate action has been taken to authorize the
execution, delivery and performance by Lessee of this Lease
and of the other documents, instruments and agreements
provided for herein. Lessee is not a "foreign corporation",
"foreign partnership", "foreign trust", "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
applicable bankruptcy laws or other laws affecting the rights
of creditors.
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C. Litigation. There are no suits, actions or
proceedings or, to the best of its knowledge, investigations,
pending or threatened against or involving Lessee or any of
the Properties before any arbitrator or Governmental
Authority which might reasonably result in any material
adverse change in the contemplated business, condition, worth
or operations of Lessee or any of the Properties.
D. Absence of Breaches or Defaults. To the best of
its knowledge, Lessee is not in default under any document,
instrument or agreement to which Lessee is a party or by
which Lessee, any of the Properties or any of Lessee's
property is subject or bound. The authorization, execution,
delivery and performance of this Lease and the documents,
instruments and agreements provided for herein will not
result in any breach of or default under any document,
instrument or agreement to which Lessee is a party or by
which Lessee, any of the Properties or any of Lessee's
property is subject or bound. The authorization, 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.
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. Corporate Fixed Charge Coverage Ratio.
Lessee and its consolidated subsidiaries (collectively, the
"Consolidated Entities") shall collectively maintain a
Corporate Fixed Charge Coverage Ratio of at least 1.50:1,
calculated as of the last day of each fiscal quarter of
Lessee (each, a "Fiscal Quarter"). For purposes of this
Section, the term "Corporate Fixed Charge Coverage Ratio"
shall mean with respect to the twelve month period of time
immediately preceding the end of each Fiscal Quarter (each,
a "12 Month Period"), the ratio calculated for such period
of time, each as determined in accordance with GAAP, of (a)
the sum of Net Income, Depreciation and Amortization, Net
Interest Expense, non-cash asset disposition losses and
Operating Lease Expense and eliminating the impact of
nonrecurring gains and losses and LIFO inventory
adjustments allocable to the applicable 12 Month Period, to
(b) the sum of Operating Lease Expense, scheduled principal
payments of long term Debt, scheduled maturities of all
Capital Leases and Net Interest Expense allocable to the
applicable 12 Month Period. If the Consolidated Entities
shall fail to maintain a Corporate Fixed Charge Coverage
Ratio of at least 1.50:1 for any 12 Month Period, the
provisions of Section 8.B shall apply with respect to such
12 Month Period.
For purposes of this Section, the following terms shall be
defined as set forth below:
"Capital Lease" shall mean all leases of any property,
whether real, personal or mixed, by any of the Consolidated
Entities, which lease would, in conformity with GAAP, be
required to be accounted for as a capital lease on the
balance sheet of such entity. The term "Capital Lease"
shall not include any operating lease.
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"Debt" shall mean with respect to the Consolidated
Entities, collectively, and for the applicable 12 Month
Period (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, indentures, notes or
similar instruments, (iii) obligations to pay the deferred
purchase price of property or services, (iv) obligations
under leases which should be, in accordance with GAAP,
recorded as Capital Leases, and (v) obligations 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.
"Depreciation and Amortization" shall mean the
depreciation and amortization accruing during the
applicable 12 Month Period with respect to the Consolidated
Entities, collectively, as determined in accordance with
GAAP.
"Net Income" shall mean with respect to the applicable
12 Month Period, the net income of the Consolidated
Entities, collectively, as reflected in the profit and loss
statements delivered pursuant to Section 31 hereof and as
determined in accordance with GAAP, provided that such
amount is net of Depreciation and Amortization, Net
Interest Expense, non-cash asset disposition losses and
Operating Lease Expense for the applicable 12 Month Period,
but not net of income taxes or charges equivalent to income
taxes allocable to the applicable 12 Month Period.
"Net Interest Expense" shall mean for the applicable
12 Month Period, (x) the sum of all interest expense
accrued or which should be accrued in respect of all Debt
of the Consolidated Entities, collectively, as determined
in accordance with GAAP, but excluding non-cash interest
expense and amortization of non-cash financing expenses,
minus (y) the sum of all interest income accrued or which
should be accrued in respect of all cash investments of the
Consolidated Entities, collectively, as determined in
accordance with GAAP.
"Operating Lease Expense" shall mean the sum of all
payments and expenses incurred by the Consolidated
Entities, collectively, under any operating leases during
the applicable 12 Month Period, as determined in accordance
with GAAP.
B. Aggregate Fixed Charge Coverage Ratio. If the
Consolidated Entities shall fail to maintain a Corporate
Fixed Charge Coverage Ratio of at least 1.50:1 for any 12
Month Period, Lessee shall maintain, for such 12 Month
Period, an Aggregate Fixed Charge Coverage Ratio for all of
the Properties in the aggregate of at least 1.25:1,
calculated as of the last day of the applicable Fiscal
Quarter. For purposes of this Lease, the term "Aggregate
Fixed Charge Coverage Ratio" shall mean with respect to the
applicable Twelve Month Period, the ratio calculated for such
period of time, each as determined in accordance with GAAP,
of (a) the sum of Net Property Income, Property Interest
Expense, Equipment Payment Amount and Property Operating
Lease Expense, less a total, annualized overhead allocation
in an amount equal to $52,000 per Property, to (b) the sum of
the Property Operating Lease Expense, the Property Interest
Expense and the Equipment Payment Amount.
For purposes of this Section, the following terms shall be defined as
set forth below:
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"Equipment Payment Amount" shall mean for the
applicable 12 Month Period the sum of (i) all amounts
payable during such 12 Month Period under all leases
entered into by Lessee for equipment located at one or more
of the Properties and (ii) all principal amounts payable
during such 12 Month Period under all loans made to Lessee
secured by Lessee's interest in the equipment located at
one or more of the Properties.
"Net Property Income" shall mean with respect to the
applicable 12 Month Period, the amount of "Cash flow before
overhead" (as listed on Lessee's Property Monthly Retail
P&L Report) allocable to all of the Properties, provided
that such amount is net of Property Interest Expense,
Equipment Payment Amount and Property Operating Lease
Expense allocable to the applicable 12 Month Period, but
not net of any Property related (x) income taxes or charges
equivalent to income taxes allocable to the applicable 12
Month Period, as determined in accordance with GAAP, (y)
overhead expense allocable to the applicable 12 Month
Period, or (z) nonrecurring gains or losses or depreciation
or amortization allocable to the applicable 12 Month
Period.
"Property Capital Lease" shall mean any lease of any
property (whether real, personal or mixed) by Lessee with
respect to one or more of the 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
"Property Capital Lease" shall not include any operating
lease or this Lease.
"Property Debt" shall mean as directly related to all of
the Properties and the applicable 12 Month Period (i)
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 relating to the Properties which should
be, in accordance with GAAP, recorded as Property 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 "Property
Debt" shall not include Lessor's debt with respect to the
Properties or otherwise.
"Property Interest Expense" shall mean for the
applicable 12 Month Period, the sum of all interest accrued
or which should be accrued in respect of all Property Debt
of Lessee allocable to one or more of the Properties and
all business operations thereon during such period
(including interest attributable to Property Capital
Leases), as determined in accordance with GAAP.
"Property Operating Lease Expense" shall mean the
expenses incurred by Lessee under any operating leases with
respect to one or more of the Properties (including this
Lease) and the business operations thereon during the
applicable 12 Month Period, as determined in accordance with
GAAP. The term "Property Operating Lease Expense" shall not
include any items included within the term "Equipment Payment
Amount".
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C. Net Worth. Lessee shall maintain a FIFO-based
net worth in excess of $75,000,000, as measured at the end of
each fiscal year of Lessee (each, a "Fiscal Year"), based on
a reported net worth of the Consolidated Entities plus the
LIFO reserve of the Consolidated Entities times 0.65 and
excluding any non-cash write down of Lessee's refinery
properties.
D. 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
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 without
Lessor's prior written consent, such consent not to be
unreasonably withheld, conditioned or delayed.
(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.
E. 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
14
Documents, or any or all
servicing rights with respect thereto, including, without
limitation, (i) providing such documents, financial and other
data, and other information and materials (the "Disclosures")
which would typically be required with respect to Lessee by a
purchaser, transferee, assignee, servicer, participant,
investor or rating agency involved with respect to such
Transfer, Participation and/or Securitization, as applicable;
provided, however, Lessee shall not be required to make
disclosures of any confidential information or any
information which has not previously been made public unless
required by applicable federal or state securities laws and,
provided further, that any such purchaser, transferee,
assignee, servicer or participant shall agree to maintain the
confidentiality of any non-public financial and other data
and information provided by Lessee; and (ii) amending the
terms of this Lease to the extent necessary so as to satisfy
the 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 have a
material adverse effect upon Lessee or the transactions
contemplated by this Lease or materially increase Lessee's
liabilities hereunder.
(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 shall pay its own attorney fees and other
out-of-pocket expenses incurred in connection with the
performance of its obligations under this Section 8.E as long
as such performance would not result in fees and expenses in
any calendar year exceeding $15,000.
F. Compliance Certificate. Within 50 days after
the end of each Fiscal Quarter (other than the last Fiscal
Quarter of a Fiscal Year) and within 100 days after the end
of each Fiscal Year of Lessee, 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. Lessor will pay
its own internal overhead costs, its own in-house legal fees and its own
accounting fees, except as otherwise expressly provided herein.
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 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:
15
A. All taxes and assessments upon any of the
Properties or any part thereof (including, without
limitation, the 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 (i.e., taxes which are determined taking
into account deductions for 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 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).
All taxing authorities shall be instructed by Lessee or, upon
Lessee's request, Lessor 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 $10,000.00, 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 or 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
required by Lessor to ensure payment of any contested taxes. As long as
no Event of Default exists, any reduction in tax attributable to such
contested action which is paid to Lessor shall be paid to Lessee.
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 any interruption of any
utility service or any such other services.
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12. Insurance. Throughout the Lease Term, Lessee shall
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
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, insuring each of the Properties for not
less than 100% of their full insurable replacement cost.
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 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 contractual liability coverage, 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 require from time to time, and
shall be of form and substance satisfactory to Lessor and
Remainderman.
C. Business income insurance or rental interruption
insurance, 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 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 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 in
order to protect their respective interests with respect to
the Properties, consistent with prudent business practices
for similar types of 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
17
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 any
other party designated by Lessor;
(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 insured or reinsured 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
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 any foreclosure or other proceedings
relating to any of the Properties or change in title
to or ownership of any of the Properties.
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, that at all times while
Lessee maintains a FIFO-based net worth in excess of $100,000,000 (as
calculated in accordance with Section 8.C), Lessee may self-insure or
maintain deductibles on (i) replacement value property insurance in an
amount not to exceed $2,000,000 per occurrence, and (ii) general
liability insurance in an amount not to exceed $1,000,000 per
occurrence. 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. 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) days' prior written notice, deliver
to Lessor and Remainderman or any Lender providing such financing or
refinancing, as the case may be, certificates of all insurance required
to be maintained by Lessee hereunder naming such transferee or such
Lender, as the
18
case may be, 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 will deposit all impounded funds in
accounts insured by any federal or state agency and may not commingle
such funds with other funds and accounts of Lessor. Interest or other
gains from such funds, if any, shall be the sole property of Lessor. In
the event of any default by Lessee which is not cured within any
applicable grace period, 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.
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 (that is, any payment not made within five calendar
days after the date when due) shall, in addition to any other remedy of
Lessor, incur a late charge of 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 a sum of late charge and interest higher than the maximum legal
rate 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 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 a 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. Unless Lessor's prior
written consent is obtained (which consent may be withheld or
conditioned by Lessor in its sole discretion), Lessee may cease diligent
operation of business at any of the Properties for a period not to
exceed 90 days and may do so only once with
19
respect to each Property within any five-year period during the Lease
Term. If Lessee does discontinue operation as permitted by this
Section, Lessee shall (i) give written notice to Lessor within 10 days
after Lessee elects to cease operation, (ii) provide adequate protection
and maintenance of 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, 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 on the first day of each month
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. conditioned
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 proposed rental to be paid to Lessor is reasonable
considering the converted use of the Properties and the customary rental
prevailing in the community for such use, (iii) whether the converted
use will be consistent with the highest and best use of the Properties,
and (iv) whether the converted use will increase Lessor's risks or
decrease the value of the Properties.
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 with
all Applicable Regulations and all restrictions, covenants and
encumbrances of record with respect to each of the Properties. In
addition to the other requirements of this Section, 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 not permit any act or condition to exist on or
about any of the Properties which will increase any insurance rate
thereon, except when such acts are required in the normal course of its
business and Lessee shall pay for such increase.
C. Without limiting the generality of the other provisions of
this Section, Lessee agrees that it shall be responsible for complying
in all respects with the Americans with Disabilities Act of 1990, as
such act may be amended from time to time, and all regulations
promulgated thereunder (collectively, the "ADA"), as it affects the
Properties, including, but not limited to, making required "readily
achievable" changes to remove any architectural or communications
barriers, and providing auxiliary aides and services within the
Properties. Lessee further agrees that any and all alterations made to
the Properties during the Lease Term will comply with the requirements
of the ADA. All plans for alterations which must be submitted to Lessor
under the provisions of Section 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
20
shall not be deemed to be a representation of Lessor's part that the
plans comply with the ADA, which obligation shall remain with Lessee.
Lessee agrees that it will defend, indemnify and hold harmless the
Indemnified Parties from and against any and all Losses caused by,
incurred or resulting from Lessee's failure to comply with its
obligations under this Section.
D. Lessee represents and warrants to Lessor and Environmental
Insurer as follows as of the Effective Date:
(i) To the best of Lessee's knowledge and except
as disclosed in the Questionnaires, none of the Properties
nor Lessee are in violation of, or subject to, any pending or
threatened investigation or inquiry by any Governmental
Authority or to any remedial obligations under any past or
present Environmental Laws, and this representation and
warranty would continue to be true and correct following
disclosure to the applicable Governmental Authorities of all
relevant facts, conditions and circumstances, if any,
pertaining to the Properties.
(ii) To the best of Lessee's knowledge and except
as disclosed in the Questionnaires, no 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 by reason of any past or
present Environmental Laws have been obtained or are
required to be obtained.
(iii) To the best of Lessee's knowledge and except
as disclosed in the Questionnaires, no Hazardous Materials or
Regulated Substances 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, other than in Permitted Amounts.
(iv) To the best of Lessee's knowledge and except
as disclosed in the Questionnaires, the Properties do not
contain Hazardous Materials or Regulated Substances, other
than in Permitted Amounts, and all USTs located on or about
any of the Properties are in full compliance with all
existing Environmental Laws.
(v) To the best of Lessee's knowledge and except as
disclosed in the Questionnaires, there is no threat of any
Release migrating to any of the Properties.
(vi) To the best of Lessee's knowledge and except as
disclosed in the Questionnaires, there is no past or present
non-compliance with past or present Environmental Laws, or
with permits issued pursuant thereto, in connection with any
of the Properties.
(vii) Except as disclosed in the Questionnaires,
Lessee has not received any written or oral notice or other
communication from any person or entity (including but not
limited to a Governmental Authority) relating to Hazardous
Materials, Regulated Substances or USTs (other than in
Permitted Amounts), Remediation, possible liability of any
person or entity pursuant to any past or present
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.
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(viii) Lessee has truthfully and fully provided or made
available 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 reports relating to Hazardous Materials, Regulated
Substances or USTs in, on, under or from any of the
Properties.
(ix) To the best of Lessee's knowledge and except as
disclosed in the Questionnaires: all uses and operations on
or of the Properties, whether by Lessee or any other person
or entity, have been in compliance with all past and
present Environmental Laws and permits issued pursuant
thereto; there have been no Releases in, on, under or from
any of the Properties, except in Permitted Amounts; there
are no Hazardous Materials or Regulated Substances in, on,
or under any of the Properties, except in Permitted
Amounts; and the Properties have been kept free and clear
of all liens and other encumbrances imposed pursuant to any
past or present Environmental Law (the "Environmental
Liens"). Lessee has not allowed any tenant or other user
of any of the Properties to do any act that materially
increased the dangers to human health or the environment,
posed an unreasonable risk of harm to any person or entity
(whether on or off the Properties), impaired the value of
any of the Properties, is contrary to any requirement of
any insurer, constituted a public or private nuisance,
constituted waste, or violated any covenant, condition,
agreement or easement applicable to any of the Properties.
E. Lessee covenants to Lessor and Environmental Insurer during
the Lease Term that: (i) the Properties shall not be in violation of any
investigation or inquiry by any Governmental Authority or any remedial
obligations under any Environmental Laws. If any investigation or
inquiry is initiated by a Governmental Authority, Lessee shall promptly
notify Lessor; (ii) all uses and operations on or of each of the
Properties, whether by Lessee or any other person or entity, shall be in
compliance with all Environmental Laws and permits issued pursuant
thereto; (iii) there shall be no Releases in, on, under or from any of
the Properties, except in Permitted Amounts; (iv) there shall be no
Hazardous Materials or Regulated Substances in, on, or under any of the
Properties, except in Permitted 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 or entity; (vi) Lessee
shall, at its sole cost 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 available for interviews; (vii) 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 and Environmental Insurer the reports and
other results thereof, and Lessor, Environmental Insurer and the other
Indemnified Parties shall be entitled to rely on such reports and other
results thereof; (viii) Lessee shall, at no cost and expense to Lessor
or Lender, 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 or
cause such Remediation to be reasonably effectuated; (2) comply with any
Environmental Law; (3) comply with any directive from any Governmental
Authority; and (4) take any other reasonable action necessary or
appropriate for protection of human health or the environment; (ix)
Lessee shall not do or allow any
22
tenant or other user of any of the Properties to do any act that
materially increases the dangers to human health or the environment,
poses an unreasonable risk of harm to any person or entity (whether on
or off any of the Properties), impairs or may impair the value of any of
the Properties, is contrary to any requirement of any insurer,
constitutes a public or private nuisance, constitutes waste, or violates
any covenant, condition, agreement or easement applicable to any of the
Properties; and (x) Lessee shall immediately notify Lessor in writing of
(A) any presence of Releases or Threatened Releases in, on, under, from
or migrating towards any of the Properties; (B) any non-compliance with
any Environmental Laws related in any way to any of the Properties; (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, Regulated Substances or USTs (other than in Permitted
Amounts), Remediation, possible liability of any person or entity
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.
▇. ▇▇▇▇▇▇, Lender, Environmental Insurer and any other person
or entity designated by Lessor, including but not limited to any
receiver, any representative of a Governmental Authority, and any
environmental consultant, shall 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 its 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, Environmental Insurer and any other person or
entity 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, an Event of Default has occurred or
Lessor has a reasonable basis for believing that a violation of
Environmental Laws may have occurred, in which case Lessee shall be
responsible for the cost of any such assessment or investigation.
Notwithstanding the forgoing, however, such access and investigation
shall be limited to one time in any calendar year except in cases where
more frequent access and investigation is reasonably necessary under the
circumstances.
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 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 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) and costs of Remediation (whether or
23
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
suffered by or asserted against any Indemnified Parties by any
Governmental Authority or non-Indemnified Party, and arising out of or
in any way relating to any one or more of the following: (i) any
presence of any Hazardous Materials, Regulated Substances or USTs in,
on, above, or under 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 person or entity
affiliated with 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, Regulated
Substances or USTs at any time located in, under, on or above any of the
Properties; (iv) any activity by Lessee, any person or entity affiliated
with 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, Regulated Substances or USTs 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 person or entity affiliated with
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 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 person or entity affiliated with Lessee or any other
tenant or user of any of the Properties in arranging for disposal or
treatment, or arranging with a transporter for transport for disposal or
treatment, of Hazardous Materials, Regulated Substances or USTs owned or
possessed by Lessee, any person or entity affiliated with Lessee or any
other tenant or user of any of the Properties, at any facility or
incineration vessel owned or operated by another person or entity and
containing such or similar Hazardous Materials, Regulated Substances or
USTs; (x) any acts of Lessee, any person or entity affiliated with
Lessee or any other tenant or user of any of the Properties, in
accepting any Hazardous Materials, Regulated Substances or USTs for
transport to disposal or treatment facilities, incineration vessels or
sites selected by Lessee, any person or entity affiliated with 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 or Regulated
Substances which causes the incurrence of costs for Remediation; (xi)
any personal injury, wrongful death, or property damage arising under
any statutory or common law or tort law theory, including but not
limited to damages assessed for the maintenance of a private or public
nuisance or for the conducting of an abnormally dangerous activity on or
near 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.
24
H. (i) At its sole cost and expense, Lessee shall have each of
the Properties inspected as may be required by any Environmental Law for
seepage, spillage and other environmental concerns. Lessee shall
maintain and monitor the USTs in accordance with all Environmental Laws.
Lessee shall provide Lessor with written certified results of all
inspections performed on each of the Properties. All costs and expenses
associated with the inspection, preparation and certification of
results, as well as those associated with any corrective action, shall
be paid by Lessee. All inspections and tests performed on the
Properties shall be in compliance with all Environmental Laws.
(ii) Lessee shall comply or cause the compliance with all
applicable federal, state and local regulations and requirements
regarding USTs including, without limitation, any of such regulations or
requirements which impose (1) technical standards, including, without
limitation, performance, leak prevention, leak detection, notification
reporting and recordkeeping, (2) corrective action with respect to
confirmed and suspected Releases, and (3) financial responsibility for
the payment of costs of corrective action and compensation to third
parties for injury and damage resulting from Releases. Lessee shall
immediately notify Lessor, in writing, of (A) the presence on or under
any of the Properties of any Hazardous Materials or Regulated Substances
other than in Permitted Amounts, or the escape, seepage, leakage,
spillage, discharge, emission or release from any USTs on, above or
under any of the Properties of any Hazardous Materials or Regulated
Substances, apparent or real, other than in Permitted Amounts, and (B)
any and all enforcement, clean-up, remedial, removal or other
governmental or regulatory actions threatened, instituted or completed
pursuant to any of the Environmental Laws affecting any of the
Properties.
(iii) Upon any Release, escape, seepage, leakage, spillage,
discharge, emission or release from any USTs on, above or under any of
the Properties of any Hazardous Materials or Regulated Substances (other
than in Permitted Amounts), Lessee shall immediately remedy such
situation in accordance with all Environmental Laws and any request of
Lessor. Should Lessee fail to remedy or cause the remedy of such
situation in accordance with all Environmental Laws, Lessor shall be
permitted to take such actions in its sole discretion to remedy such
situation and any costs and expenses incurred in connection therewith
will be paid by Lessee.
I. Lessee represents that, as of the Effective Date, Lessee is
in compliance with the requirements of 40 C.F.R. Section 298 Subpart H -
Financial Responsibility (or equivalent state law) with respect to those
petroleum underground storage tanks or storage tank systems (as those
terms are defined under 40 C.F.R. Section 290.12 or equivalent state
law) located at the Properties. Lessee agrees to satisfy the
requirements for financial responsibility set forth in 40 C.F.R. Section
280.93 (or equivalent state law) during the term of this Lease. Lessee
agrees to specifically designate Lessor (or at the direction of Lessor,
Lender) as the beneficiary of such insurance, guarantee, bond, letter of
credit or trust fund as is used to satisfy the obligations of 40 C.F.R.
Section 280.93 (or equivalent state law) and to provide Lessor with
proof of that designation. In the event Lessee changes its method of
establishing financial responsibility under 40 C.F.R. Section 280.93 (or
equivalent state law), Lessee agrees to re-designate Lessor (or at the
direction of Lessor, Lender) as beneficiary under the new mechanism used
to establish compliance with 40 C.F.R. Section 280.93 (or equivalent
state law) and to provide documentation of that fact to Lessor within 10
days of that re-designation.
25
J. The obligations of Lessee and the rights and remedies of the
Indemnified Parties under the foregoing subsections D through I shall
survive the termination, expiration and/or release of this Lease.
K. Notwithstanding anything to the contrary contained in this
Lease, an Event of Default shall not be deemed to have occurred under
this Lease or any of the other Sale-Leaseback Documents as a result of
the failure of Lessee to comply with any of the covenants set forth in
subsections A, E or H by reason of a Release at any of the Properties in
violation of Environmental Laws so long as Lessee diligently pursues an
agreement with the applicable Governmental Authorities with respect to
the Remediation of such Release and, once such agreement is in place,
completes such Remediation within the time period required by such
Governmental Authorities. Notwithstanding the foregoing, if such
agreement allows for the Remediation to be completed after the
expiration of the Lease Term, Lessee shall use its best efforts to
complete such Remediation prior to the end of the Lease Term and, if
Lessee is unable to complete such Remediation by the expiration of the
Lease Term despite its best efforts to do so, Lessee shall post, at the
expiration of the Lease Term, such security with Lessor as Lessor may
reasonably require to ensure the completion of such Remediation within
the time period required by the applicable Governmental Authorities.
L. Notwithstanding anything to the contrary contained in this
Lease, an Event of Default shall not be deemed to have occurred under
this Lease or any of the other Sale-Leaseback Documents as a result of
the failure of Lessee to comply with any of the covenants set forth in
subsections A or C by reason of any violation of Applicable Regulations
(other than those violations which would be covered under subsection K
above) if Lessee diligently pursues an agreement with the applicable
Governmental Authorities with respect to the time period in which such
violation may be cured and, once such agreement is in place, completes
such cure within the time period required by such Governmental
Authorities. Notwithstanding the foregoing, if such agreement allows
for such cure to be completed after the expiration of the Lease Term,
Lessee shall use its best efforts to complete such cure prior to the end
of the Lease Term and, if Lessee is unable to complete such cure by the
expiration of the Lease Term despite its best efforts to do so, Lessee
shall post, at the expiration of the Lease Term, such security with
Lessor as Lessor may reasonably require to ensure the completion of such
cure within the time period required by the applicable Governmental
Authorities.
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 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.
At all times during the Lease Term, all personal property necessary to
operate a Permitted Facility shall be maintained by Lessee at the
Properties in such condition and repair as is consistent with Lessee's
standards currently in effect for a Permitted Facility.
26
18. Waste; Alterations and Improvements. Lessee shall not
commit actual or constructive waste upon any of the Properties. Lessee
shall not alter in any material respect 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, conditioned or delayed (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 $150,000.00 without Lessor's consent. If Lessor's consent is
required hereunder and Lessor consents to the making of any such
alterations (such consent not to be unreasonably withheld, conditioned
or delayed), the same shall be made according to plans and
specifications approved by Lessor and subject to such other conditions
as Lessor shall 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, Lessee shall promptly provide Lessor with (i) evidence
of full payment to all laborers and materialmen contributing to the
alterations, (ii) an architect's certificate certifying the alterations
to have been completed in conformity with the plans and specifications,
(iii) a certificate of occupancy (if the alterations are of such a
nature as would require the issuance of a certificate of occupancy), and
(iv) any other 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 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 during or prior to the Lease Term,
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, in any certificate delivered in
connection
27
herewith or in any other agreement to which Lessee is a party or
pursuant thereto 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,
(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.
20. Quiet Enjoyment. So long as Lessee shall pay the rental
and other sums herein provided and shall keep and perform all of the
terms, covenants and conditions on its part herein contained, Lessee
shall have, subject and subordinate to Lessor's rights herein, the right
to the peaceful and quiet occupancy of the Properties. Notwithstanding
the foregoing, however, in no event shall Lessee be entitled to bring
any action against Lessor to enforce its rights hereunder 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. During all periods of time following a
Casualty, Lessee shall insure that the subject Property is secure and
does not pose any risk of harm to adjoining property owners or occupants
or third-parties.
B. Assignment of Awards, Insurance Proceeds and Payments. In
the event of a Material Taking or a Material Casualty, Lessor shall be
entitled to receive the entire award, insurance proceeds or payment in
connection therewith, except as set forth below, 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 Excluded 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
28
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 Excluded 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 Taking or Material Casualty. In the event of a
Material Taking or Material Casualty, Lessee shall have the right to
terminate this Lease with respect to the applicable Property by notice
(the "Termination Notice") given to Lessor not later than 30 days after
the Material Taking or Material Casualty, as applicable. The
Termination Notice must: (i) specify a date on which this Lease with
respect to such Property shall terminate, which date shall be the last
day of a calendar month occurring not earlier than 120 days and not
later than 150 days after the delivery of such notice (the "Early
Termination Date"); (ii) contain a certificate executed by the
president, chief financial officer or treasurer of Lessee which (X)
describes the facts relating to the Material Taking or Material
Casualty, and (Y) represents and warrants that such facts constitute a
Material Taking or Material Casualty as such terms are defined in this
Lease; and (iii) if the Early Termination Date shall occur prior to the
commencement of any extension options which may be exercised pursuant to
Section 27, contain either (X) an irrevocable rejectable written offer
(the "Rejectable Offer") of Lessee to purchase Lessor's interest in such
Property and in the net award for such Material Taking or net insurance
proceeds for such Material Casualty, as applicable, after deducting all
costs, fees and expenses incident to the collection thereof, including
all costs and expenses incurred by Lessor and Lender in connection
therewith (the "Net Award") on the Early Termination Date for a purchase
price equal to the Stipulated Loss Value (as hereinafter defined) for
such Property, or (Y) a Rejectable Substitution Offer to substitute a
Substitute Property satisfying the applicable requirements of Section
55.A for such Property and Lessor's interest in the Net Award. As used
herein, the term "Stipulated Loss Value" shall mean the sum of (a) the
product of the percentage specified on Schedule I attached hereto which
corresponds to the Early Termination Date multiplied by the Purchase
Price for such Property, plus (b) all Base Annual Rental, Additional
Rental and other sums and obligations then due and payable under this
Lease, plus (c) the Prepayment Charge corresponding to such Property.
If the Early Termination Date shall occur prior to the commencement
of any extension options which may be exercised pursuant to Section 27,
Lessor shall have 90 days from the delivery of the Termination Notice to
deliver to Lessee written notice of its election to either accept or
reject any Rejectable Offer or Rejectable Substitution Offer contained
in the Termination Notice. Lessor's failure to deliver such notice
within such time period shall be deemed to constitute Lessor's
acceptance of the applicable Rejectable Offer or Rejectable Substitution
Offer. If the Mortgage corresponding to such Property is still
outstanding, any rejection of the Rejectable Offer or Rejectable
Substitution Offer by Lessor shall not be effective unless it is
consented to in writing by the Lender and such written consent is
delivered to Lessee within such 90-day period.
If Lessor accepts the Rejectable Offer or is deemed to have
accepted the Rejectable Offer or if, while the Mortgage corresponding to
such Property is still outstanding, any rejection of the Rejectable
Offer by Lessor is not consented to in writing by the Lender, then, on
the Early Termination Date, Lessor shall sell and convey, and Lessee
shall purchase for the purchase price
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described above, Lessor's interest in such Property and the Net Award.
Lessee's obligations under this Lease with respect to such Property
shall not be terminated until the applicable Stipulated Loss Value is
paid in full. Upon such payment, (i) Lessor shall convey such Property
to Lessee "as-is" by special warranty deed, subject to all matters of
record (except for (X) the Mortgage corresponding to such Property, (Y)
any other consensual liens granted by Lessor with respect to such
Property other than those granted by Lessor at the request, or with the
consent, of Lessee, and (Z) any non-consensual liens against Lessor
which encumber such Property and which do not result from Lessee's
failure to perform its obligations under this Lease), and without
representation or warranty, and (ii) all obligations of either party
hereunder with respect to such Property shall cease as of the Early
Termination Date, 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 Early Termination Date 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 accepts the Rejectable Substitution Offer or is deemed to
have accepted the Rejectable Substitution Offer or if, while the
Mortgage corresponding to such Property is still outstanding, any
rejection of the Rejectable Substitution Offer by Lessor is not
consented to in writing by the Lender, then, on the Early Termination
Date, Lessee shall complete such substitution, subject, however, to the
satisfaction of each of the applicable terms and conditions set forth in
Section 55. Upon such substitution (i) Lessee shall be entitled to
claim and receive the Net Award and (ii) all obligations of either party
hereunder with respect to the Property being replaced shall cease as of
the Early Termination Date, 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 Early Termination Date 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.
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.C, 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.C, Lessee's attorneys' fees and the reasonable
attorneys' fees and expenses of counsel to Lessor and Lender.
If Lessor rejects the Rejectable Offer or Rejectable Substitution
Offer and, as long as the Mortgage corresponding to the Property subject
to such Rejectable Offer or Rejectable Substitution Offer is still
outstanding, such rejection is consented to in writing by Lender (and
such written consent delivered to Lessee within the applicable 90-day
period), or if the Early Termination Date shall occur after the
commencement of any extension options exercised pursuant to Section 27,
then (i) the Net Award shall be paid to and belong to Lessor, (ii) on
the
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Early Termination Date, Lessee shall pay to Lessor all Base Annual
Rental, Additional Rental and other sums and obligations then due and
payable under this Lease, and (iii) all obligations of either party
hereunder shall cease as of the Early Termination Date with respect to
the applicable Property, provided, however, Lessee's obligations to the
Indemnified Parties 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 the
Early Termination Date shall survive the termination of this Lease.
This Lease shall, however, continue in full force and effect with
respect to all other Properties.
D. 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 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 such Temporary
Taking; provided, however, Lessee shall not be required to restore such
Property if the Lease Term shall expire prior to, or within one year
after, the date of termination of such Temporary Taking, and in such
event Lessor shall be entitled to recover the entire award relating to
the Temporary Taking.
E. 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, as long as the Mortgage
corresponding to the applicable Property is still outstanding, 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 notice from Lessor to Lessee or Lessor's
failure to notify Lessee that Lessor has elected to terminate this Lease
with respect to such 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 such Property during which to elect
to continue this Lease with respect to such Property on the terms herein
provided. If Lessor elects to terminate this Lease with respect to such
Property and Lessee does not elect to continue this Lease with respect
to such Property or shall fail during such 60-day period to notify
Lessor of Lessee's intent to continue this Lease with respect to such
Property, then this Lease shall terminate with respect to such Property
as of the last day of the month during which such period expired.
Lessee shall then immediately vacate and surrender such Property, all
obligations of either party hereunder with respect to such 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 such 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 such Property prior to the date of termination shall survive
such termination) and
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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 such Property, or if Lessor elects to terminate this Lease with
respect to such Property but Lessee elects to continue this Lease with
respect to such 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 such Property to the same condition,
as nearly as practicable, as prior to such Partial Taking or Partial
Casualty as approved by Lessor. Subject to reasonable conditions for
disbursement imposed by Lessor, Lessor shall promptly make available in
installments as restoration progresses an amount up to but not exceeding
the amount of any award, compensation or damages received by Lessor
after deducting all costs, fees and expenses incident to the collection
thereof, including all costs and expenses incurred by Lessor and Lender
in connection therewith (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 of Section 18
above in connection with the restoration. Prior to the disbursement of
any portion of the Net Restoration Amount with respect to a Partial
Casualty, 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 Partial Casualty. 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.
F. Rent Reduction. In the event of a termination of this Lease
with respect to a Property pursuant to Section 21.C which does involve
the acceptance (or deemed acceptance) of a Rejectable Substitution Offer
or a termination of this Lease with respect to a Property pursuant to
Section 21.E, the Base Annual Rental then in effect shall be reduced by
an amount equal to the product of (x) the Applicable Rent Reduction
Percentage for such Property, and (y) the Base Annual Rental then in
effect.
G. 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 to the contrary, if at the time
of any Taking or any Casualty or at any time thereafter Lessee shall be
in default under this Lease and such default shall be continuing, Lessor
is hereby authorized and empowered but shall not be obligated, in the
name and on behalf of Lessee and otherwise, to file and prosecute
Lessee's claim, if any, for an award on account of 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.
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H. 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 reasonable advance notice, to enter
any of the Properties or any part thereof at reasonable times in order
to inspect the same and make photographic or other evidence concerning
Lessee's compliance with the terms of this Lease or in order to show the
Properties to prospective purchasers and lenders. 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. 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 in accordance with GAAP. Lessee's books and records
shall at all times be open 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
Lessor's obligations under the Loan Documents.
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 material respect, or if
Lessee renders any statement or account which is false in any
material respect;
(ii) If any rent or other monetary sum due under this
Lease is not paid within five days from the date when due and
Lessor shall have given Lessee notice thereof and a period of
five days from the delivery of such notice shall have elapsed
without such payment being made;
(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;
(iv) If Lessee becomes insolvent within the meaning
of the Code, files or notifies Lessor that it intends to file
a petition under the Code, initiates a proceeding under any
similar law or statute relating to bankruptcy, insolvency,
reorganization, winding up or adjustment of debts
(collectively, hereinafter, an "Action"), becomes the subject
of either a petition under the Code or an Action which is not
dissolved within 90 days after filing, or is not generally
paying its 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;
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(vi) If there shall be a breach of the provisions of
Section 8.C hereof;
(vii) If Lessee shall fail to maintain insurance in
accordance with the requirements of Section 12 and such
failure continues for 5 days;
(viii) If Lessee fails to observe or perform any of the
other covenants (except with respect to a breach of the
Corporate Fixed Charge Coverage Ratio or Aggregate Fixed
Charge Coverage Ratio, which breach is addressed in subitem
(xi) 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 notice thereof, all as
determined by Lessor in its reasonable discretion, then such
failure shall not constitute an Event of Default hereunder,
unless otherwise expressly provided herein, unless and until
Lessor shall have given Lessee notice thereof and a period of
30 days shall have elapsed, during which period Lessee may
correct or cure such failure, upon failure of which an Event
of Default shall be deemed to have occurred hereunder without
further notice or demand of any kind being required. If such
failure cannot reasonably be cured within such 30 day period,
as determined by Lessor in its reasonable discretion, and
Lessee is diligently pursuing a cure of such failure, then
Lessee shall have a reasonable period to cure such failure
beyond such 30 day period, which shall in no event exceed 90
days after receiving notice of 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 notice or demand of any
kind being required;
(ix) 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 or any of the Other Agreements;
(x) If a final, nonappealable judgment is rendered by
a court against Lessee which has a material adverse effect on
either the ability to conduct business at any of the
Properties for its intended use or Lessee's ability to
perform its obligations under this Lease, or is in the amount
of $500,000.00 or more and is not covered by insurance, and
in either event is not discharged or provision made for such
discharge or bonded over within 60 days from the date of
entry thereof;
(xi) If there is a breach of both the Corporate Fixed
Charge Coverage Ratio and Aggregate Fixed Charge Coverage
Ratio requirements and Lessor shall have given Lessee notice
thereof; provided, however, Lessee shall have the option, but
not the obligation, to cure such breach by delivering to
Lessor, within a period of 30 days from the delivery of such
notice (the "30 Day Cure Period"), a letter of credit in
favor of Lessor (or, at Lessor's written direction, in favor
of Lender) substantially in the form attached to this Lease
as Exhibit B issued by an Approved Institution (the "Letter
of Credit") in such amount as is necessary to cause the
Aggregate Fixed Charge Coverage Ratio for the 12 Month Period
for which such breach occurred to be in compliance with the
Aggregate Fixed Charge Coverage Ratio requirement, assuming
that the Letter of Credit was utilized to increase Net
Property Income. Notwithstanding the foregoing, Lessee may
not provide a Letter of Credit to cure a breach of the
Aggregate Fixed Charge Coverage Ratio requirement if the
amount of the
34
Letter of Credit, when added to the aggregate
amount of all Letters of Credit previously delivered to
Lessor and still outstanding, would exceed the Base Annual
Rental. If Lessor posts the aggregate amount of all Letters
of Credit permitted to be posted pursuant to the preceding
sentence and such amount is not sufficient to cause the
Aggregate Fixed Charge Coverage Ratio for the 12 Month Period
for which such breach occurred to be in compliance with the
Aggregate Fixed Charge Coverage Ratio requirement (assuming
that the Letters of Credit were utilized to increase Net
Property Income), Lessee shall have the option, but not the
obligation, to cure such breach within the 30 Day Cure Period
by prepaying Base Monthly Rental (a "Prepayment of Rent") in
such amount, assuming that the Letter(s) of Credit delivered
above was utilized to increase Net Property Income, as is
necessary to cause the Aggregate Fixed Charge Coverage Ratio
for the 12 Month Period for which such breach occurred to be
in compliance with the Aggregate Fixed Charge Coverage Ratio
requirement.
In the event Lessee elects to make a Prepayment of
Rent as herein provided, Base Monthly Rental due and
payable from and after the next scheduled Base Monthly
Rental payment date shall be reduced by an amount equal to
the Base Monthly Rental then in effect multiplied by a
fraction, the numerator of which is the amount of the Base
Monthly Rental prepaid and the denominator of which is the
sum of the Purchase Price for all of the Properties.
Any Letter of Credit delivered pursuant to this Section
23.A(xi) shall be maintained in effect until the next 12
Month Period for which Lessee complies with the Corporate
Fixed Charge Coverage Ratio or Aggregate Fixed Charge
Coverage Ratio requirement without taking such Letter of
Credit into account. During the continuance of an Event of
Default, Lessor shall have the right to present such Letter
of Credit for payment and apply such proceeds towards any
amounts owed by Lessee under Section 23.B as a result of such
Event of Default, provided that such application of proceeds
shall not be deemed to cure such Event of Default if the
amount of the Letter of Credit is less than the amount owed
by Lessee under Section 23.B as a result of such Event of
Default. Also, 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
Base Annual Rental due and payable under this Lease. Once
there occurs a 12 Month Period for which Lessee complies with
the Corporate Fixed Charge Coverage Ratio or Aggregate Fixed
Charge Coverage Ratio requirement without taking such Letter
of Credit into account, Lessor shall release such Letter of
Credit to the Approved Institution or, if Lessor is holding
the proceeds of such Letter of Credit, deliver such proceeds
to Lessee.
Notwithstanding the foregoing, if, prior to the
expiration of the 30 Day Cure Period, Lessee provides
evidence satisfactory to Lessor that the 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.
35
If there is a breach of the Corporate Fixed Charge
Coverage Ratio requirement, Lessor shall have no remedies
against Lessee under this Lease by reason of such breach
unless there is a breach of the Aggregate Fixed Charge
Coverage Ratio requirement for the corresponding period.
(xii) If Lessee shall fail to sign any instrument or
certificate in accordance with the provisions of Section 25
of this Lease and such failure shall not be cured within five
days following 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 subsection
A. above or such other notice as may be required by statute
and cannot be waived by Lessee (all other notices being
hereby waived), Lessor shall be entitled to exercise, at
its option, concurrently, successively, or in any
combination, all remedies available at law or in equity,
including without limitation, any one or more of the
following:
(i) To terminate this Lease, whereupon Lessee's
right to possession of the 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
franchises, licenses, area development agreements, 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) To remove all machinery, appliances, furniture,
equipment, trade fixtures and other tangible personal
property located on or at any or all of the Properties and
not owned by Lessor 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 or any equitable relief available
to Lessor.
(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
36
as Lessor may, in it sole discretion, determine,
which other sums include, without limitation, all
repossession costs, brokerage commissions, attorneys' fees
and expenses, employee expenses, alteration, remodeling and
repair costs and expenses of preparing for such reletting.
Except to the extent required by applicable law, Lessor shall
have no obligation to relet 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) Upon notice to Lessee (the "Trigger Notice"),
to deem Lessee to have made an irrevocable rejectable offer
(an "Event of Default Rejectable Offer") to purchase all of
the Properties which are then subject to this Lease for a
purchase price equal to the sum of (i) the product of the
percentage specified on Schedule I attached hereto which
corresponds to the time period during which such Event of
Default Rejectable Offer is made multiplied by the sum of
the Purchase Price for all of the Properties which are then
subject to this Lease, plus (ii) all Base Annual Rental,
Additional Rental and other sums and obligations then due
and payable under this Lease, plus (iii) the sum of the
Prepayment Charges corresponding to all of the Properties
which are then subject to this Lease (the sum of items (i),
(ii) and (iii) being referred to herein as the "Event of
Default Purchase Amount"). Lessor shall have 120 days from
the giving of the Trigger Notice to deliver written notice
to Lessee of its election to either accept or reject the
Event of Default Rejectable Purchase Offer. Lessor's
failure to deliver such notice within such time period
shall be deemed to constitute Lessor's acceptance of the
Event of Default Rejectable Offer. If any of the Mortgages
are still outstanding, any rejection of the Event of
Default Rejectable Offer by Lessor shall not be effective
unless it is consented to in writing by the Lender and such
written consent is delivered to Lessee within such 120-day
period.
If Lessor accepts the Event of Default Rejectable Offer
or is deemed to have accepted the Event of Default Rejectable
Offer or if, while any of the Mortgages are still
outstanding, any rejection of the Event of Default Rejectable
Offer by Lessor is not consented to in writing by the Lender,
then, on a date not later than 30 days after the expiration
of the aforesaid 120-day period (such date being referred to
herein as the "Conveyance Date"), Lessor shall sell and
convey, and Lessee shall purchase for the Event of Default
Purchase Amount, Lessor's interest in all of the Properties
which are then subject to this Lease. Lessee's obligations
under this Lease with respect to such Properties shall not be
terminated until the applicable Event of Default Purchase
Amount is paid in full. Upon such payment, (i) Lessor shall
convey such Properties to Lessee "as-is" by special warranty
deed, subject to all matters of record (except for (X) the
Mortgages corresponding to such Properties, (Y) any other
consensual liens granted by Lessor with respect to such
Properties other than those granted by Lessor at the request,
or with the consent, of Lessee, and (Z) any non-consensual
liens against Lessor which encumber such Properties and which
do not result from Lessee's failure to perform its
obligations under this Lease), and without representation or
warranty, and (ii) all obligations of either party hereunder
shall cease as of
37
the Conveyance Date, provided, however,
Lessee's obligations to the Indemnified Parties under any
indemnification provisions of this Lease (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 prior to the Conveyance Date shall
survive the termination of this Lease.
Lessee shall be solely responsible for the payment of
all costs and expenses incurred in connection with the
conveyance of Properties to Lessee pursuant to this Section
23.B(vi), 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
the Properties to Lessee or the termination of this Lease
pursuant to the provisions of this Section 23.B(vi), Lessee's
attorneys' fees and the reasonable attorneys' fees and
expenses of counsel to Lessor and Lender.
If Lessor rejects the Event of Default Rejectable Offer
and, as long as any of the Mortgages are still outstanding,
such rejection is consented to in writing by Lender (and such
written consent delivered to Lessee within the applicable
120-day period), then Lessor shall be entitled to (x) recover
from Lessee all rent and other monetary sums then due and
owing under this Lease and (y) accelerate and recover from
Lessee an amount equal to the present value (discounted at
the rate of 6% per annum) of the difference between (1) all
rent and other monetary sums scheduled to become due and
owing under this Lease thereafter for the entire remaining
Lease Term, and (2) the fair market rental value (as
reasonably determined by Lessor) of the Properties which are
then subject to this Lease for such period (the sum of items
(x) and (y) being hereinafter referred to as the "Damage
Amount"). Upon payment by Lessee of the Damage Amount, all
obligations of either party hereunder shall cease as of the
date of such payment, provided, however, Lessee's obligations
to the Indemnified Parties under any indemnification
provisions of this Lease (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 prior to such payment date shall survive the
termination of this Lease.
Notwithstanding anything to the contrary contained in
this Lease, Lessor's remedies under this subsection (vi) are
not exclusive 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, until such time as Lessee has
paid all amounts owing to Lessor under this subsection (vi),
Lessor reserves all such other rights and remedies.
(vii) To recover from Lessee all costs and expenses,
including attorneys' fees, court costs, expert witness fees,
costs of tests and analyses, travel and accommodation
expenses, deposition and trial transcripts, copies and other
similar costs and fees, paid or incurred by Lessor as a
result of such breach, regardless of whether or not legal
proceedings are actually commenced.
(viii) To immediately or at any time thereafter, and
with or without notice, at Lessor's sole option but without
any obligation to do so, correct such breach or default and
charge Lessee all costs and expenses incurred by Lessor
therein. Any sum or sums so paid
38
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 hereunder.
(x) To seek any equitable relief available to Lessor,
including, without limitation, the right of specific
performance.
(xi) To present for payment all Letters of Credit
previously delivered to Lessor and still outstanding and
apply such proceeds toward any amounts due under this Lease.
All powers and remedies given by this Section to Lessor, subject to
applicable law, shall be cumulative and not exclusive of one another or
of any other right or remedy or of any other powers and remedies
available to Lessor under this Lease, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements of Lessee contained in this Lease, and no delay or omission
of Lessor to exercise any right or power accruing upon the occurrence of
any Event of Default shall impair any other or subsequent Event of
Default or impair any rights or remedies consequent thereto. Every
power and remedy given by this Section or by law to Lessor may be
exercised from time to time, and as often as may be deemed expedient, by
Lessor, subject at all times to Lessor's right in its sole judgment to
discontinue any work commenced by Lessor or change any course of action
undertaken by Lessor.
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 days 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 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 OR THE PERSONALTY, AND ANY SUCH
PURPORTED TRANSACTION
39
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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LESSEE
SHALL NOT LEASE ANY OF THE PERSONALTY FROM THIRD-PARTIES.
This Lease at all times shall automatically be subordinate to the
Mortgages and to the lien of any and all ground leases, mortgages 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 ground leases, mortgages or trust
deeds as shall be desired by Lessor, or any present or proposed
mortgagees or lenders under trust deeds, upon the condition that Lessee
shall have the right to remain in possession of the Properties under the
terms of this Lease, notwithstanding any default in the Mortgages or any
or all such ground leases, mortgages or trust deeds, or after
foreclosure of any or all such Mortgages, mortgages or trust deeds or
termination of any or all such ground leases, so long as no Event of
Default shall have occurred and be continuing under 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 ground lease, mortgage 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, ground lease, mortgage or trust deed, whether this Lease was
executed before or after such Mortgage, ground lease, mortgage 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 ground lease, mortgage 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
required for such purposes, and in the event Lessee fails so to do
within 10 days after demand, Lessee does hereby make, constitute and
irrevocably appoint Lessor as its agent and attorney-in-fact and in its
name, place and stead so to do, which appointment shall be deemed
coupled with an interest.
In the event any purchaser or assignee of Lender at a foreclosure
sale acquires title to any of the Properties, or in the event Lender or
any assignee otherwise succeeds to the rights of Lessor as landlord
under this Lease, Lessee shall attorn to Lender or such purchaser or
assignee, as the case may be (a "Successor Lessor"), and recognize the
Successor Lessor as lessor under this Lease, and this Lease shall
continue in full force and effect as a direct lease between the
Successor Lessor and Lessee, provided that the Successor Lessor shall
only be liable for any obligations of the lessor under this Lease which
accrue after the date that such Successor Lessor acquires title. The
foregoing provision shall be self operative and effective without the
execution of any further instruments.
Lessee shall give written notice to any lender of Lessor having a
recorded lien upon any of the Properties or any part thereof of which
Lessee has been notified of any breach or default by Lessor of any of
its obligations under this Lease simultaneously with the giving of such
notice
40
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. Upon
request by Lessor, Lessee shall also provide Lessee's most recent
audited financial statements to Lessor or any such lender and certify
the continuing accuracy of such financial statements in such manner as
Lessor or such lender may request.
25. Estoppel Certificate. At any time, and from time to time,
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 by Lessor, Lender or
any present or proposed mortgagee or purchaser designated by Lessor,
certifying: (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, to the best of Lessee's knowledge, 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, including the USTs or the handling and disposal of Hazardous
Materials or Regulated Substances; and (ix) any other information
reasonably requested by Lessor, Lender or such present or proposed
mortgagee or purchaser.
26. Assignment. 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. Lessee shall not sublet all or any part of
any of the Properties without the prior written consent of Lessor, such
consent not to be unreasonably withheld, conditioned or delayed. Also,
without the prior written consent of Lessor: (i) Lessee shall not
assign, transfer or convey 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
if such transfer, assignment, conveyance, pledge or mortgage would or
could result in a Change of Control; and (iii) Lessee shall not sell,
transfer or dispose of any material part of its assets except in the
ordinary course of
41
business for full and fair consideration and reasonably equivalent
value. 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 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 this paragraph
shall be voidable at the sole option of Lessor.
C. For purposes of this Section 26, the following terms shall
have the following meanings:
"Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Beneficial Ownership" has the meaning in Rule 13d-3 promulgated
under the Act.
"Change of Control" shall mean the ownership by a Group of
Beneficial Ownership of 50% or more of the Voting Power of Lessee, but
excluding any acquisition of the Voting Power of Lessee by an employee
benefit plan of Lessee.
"Group" means any individual, entity or group within the meaning of
Section 13(d)(3) or 14(d)(2) of the Act.
"Voting Power" means the combined voting power of the outstanding
voting securities entitled to vote generally in the election of
directors.
27. Option To Extend. 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 ten years and two successive periods of
five years each in accordance with the terms and provisions of this
Lease then in effect, except as provided below. The Base Annual Rental
during the first extension period shall equal the Base Annual Rental in
effect immediately prior to the beginning of the first extension period.
The Base Annual Rental during the second extension period shall equal
the lesser of (i) 95% of the annual fair market rental value of the
Properties during such extension period (to be determined as set forth
below), and (ii) the Base Annual Rental in effect at the end of the
first extension period multiplied by 1.10. The Base Annual Rental
during the third extension period shall equal the lesser of (i) 95% of
the annual fair market rental value of the Properties during such
extension period (to be determined as set forth below), and (ii) the
Base Annual Rental in effect at the end of the second extension period
multiplied by 1.05. Notwithstanding the foregoing, in the event that
Lessee's notice of the exercise of the second and third extension option
does not contain a request for Lessor to cause an appraisal of the fair
42
market rental value of the Properties to be performed, the Base Annual
Rental during the second and third extension options shall be the amount
determined pursuant to clauses (ii) of each of the two preceding
sentences, as applicable.
Lessee may only exercise the first extension option by giving
notice to Lessor of Lessee's intention to do so not later than April 30,
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 January 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 January 31, 2035.
Upon receipt of notice of the exercise of the second and third
extension option and only if such notice requests that Lessor cause
appraisals be performed, Lessor shall within 90 days, at Lessee's
expense, cause an appraisal of the fair market rental value of the
Properties to be made by an independent MAI appraiser. If within 20
days after being notified of the result of such appraisal Lessee elects
to reject that appraisal, then Lessor shall nominate to Lessee a list of
not less than three independent MAI appraisers who are experienced with
appraising property similar to the Properties, and Lessee shall select
one such appraiser. Within 60 days of such selection an appraisal shall
be made of the Properties by that appraiser and within 20 days after the
results of that appraisal shall have been delivered to Lessee, Lessee
shall notify Lessor of Lessee's election to exercise its option to
extend this Lease and shall pay the rental so established above which
shall be absolutely net to Lessor as provided in Section 9 hereof. If
such notice of exercise is not received by Lessor within the 20-day
period then this Lease shall terminate on the last day of the Lease Term
or, if applicable, the last day of the first extension of the Lease
Term.
Notwithstanding anything to the contrary contained in this Lease,
Lessee shall have the right to specify in its notice of the exercise of
the first extension option up to two Properties (the "Non-Renewed
Properties") for which Lessee does not elect to renew this Lease. If
Lessee exercises such right, the Lease shall not be deemed to be renewed
for the Non-Renewed Properties and the Base Annual Rental for the first
extension period shall equal the Base Annual Rental in effect
immediately prior to the beginning of the first extension period less
the product of (x) the sum of the Applicable Rent Reduction Percentage
for each Non-Renewed Property, and (y) the Base Annual Rental in effect
immediately prior to the beginning of the first extension period.
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) transmission, if
delivered by facsimile, (c) the next Business Day, if delivered by
express overnight delivery service, or (d) the third Business Day
following the day of deposit of such notice with the United States
Postal Service, if sent by certified or registered mail, return receipt
requested. Notices shall be provided to the parties and addresses (or
facsimile numbers, as applicable) specified below:
43
If to Lessee: Crown Central Petroleum Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Business Development
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇
▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lessor: Crown Prince Properties, LLC
c/o U.S. Realty Advisors LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Executive Vice President, General Counsel and
Secretary
FFCA Funding Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:(▇▇▇) ▇▇▇-▇▇▇▇
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.
44
29. Holding Over. If Lessee remains in possession of any of the
Properties after the expiration of the term hereof, Lessee, at Lessor's
option and within Lessor's sole discretion, may be deemed a tenant on a
month-to-month basis and shall continue to pay rentals and other sums in
the amounts herein provided, except that the Base Monthly Rental shall
be automatically increased by 50%, and to comply with all the terms of
this Lease; provided that nothing herein nor the acceptance of rent by
Lessor shall be deemed a consent to such holding over. Lessee shall
defend, indemnify, protect and hold 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 Personal Property. At the expiration of the Lease
Term, and if Lessee is not then in breach hereof, Lessee may remove from
the Properties all machinery, appliances, furniture, equipment, trade
fixtures and other tangible personal property not owned by Lessor.
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.
31. Financial Statements. Within 50 days after the end of each
Fiscal Quarter (other than the last Fiscal Quarter of a Fiscal Year) and
within 100 days after the end of each Fiscal Year of Lessee, Lessee
shall deliver to Lessor and Lender (i) complete financial statements of
the Consolidated Entities including a balance sheet, profit and loss
statement, statement of cash flows and all other related schedules for
the fiscal period then ended; and (ii) Lessee's Property Monthly Retail
P&L Report for each of the Properties. The financial statements
specified in (i) above shall be prepared in accordance with GAAP and
shall be certified to be accurate and complete by Lessee (or the
Treasurer or other appropriate officer of Lessee). Lessee understands
that Lessor and Lender will rely upon such financial statements and
Lessee represents that such reliance is reasonable. The financial
statements delivered to Lessor and Lender need not be audited, but
Lessee shall deliver to Lessor and Lender copies of any audited
financial statements of Lessee which may be prepared, in accordance with
the reporting deadlines specified in this Section 31.
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. Lessor's Liability. Notwithstanding anything to the contrary
provided in this Lease, it is specifically understood and agreed, such
agreement being a primary consideration for the execution of this Lease
by Lessor, that (i) there shall be absolutely no personal liability on
the part of Lessor, its successors or assigns and 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,
45
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
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.
35. Consent of Lessor. (a) Unless specified otherwise herein,
Lessor's consent to any request of Lessee may be conditioned or withheld
in Lessor's sole discretion. Lessor shall have no liability for damages
resulting from Lessor's failure to give any consent, approval or
instruction reserved to Lessor, Lessee's sole remedy in any such event
being an action for injunctive relief.
(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.
38. No Merger. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not result in a merger
of Lessor's and Lessee's estates, and shall, at the option of Lessor,
either terminate any or all existing subleases or subtenancies, or
operate as an assignment to Lessor of any or all of such subleases or
subtenancies.
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.
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 therein.
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
46
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.
▇. ▇▇▇▇▇▇ 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 shall have the right
to grant utility easements on, over, under and above any of the
Properties with the prior consent of Lessee, such consent not to be
unreasonably withheld, delayed or conditioned, provided that such
easements will not materially interfere with Lessee's long-term use 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 defaults 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 such 60 day period and the
Properties surrendered to Lessor.
Accordingly, in consideration of the mutual covenants contained in
this Lease and for other good and valuable consideration, Lessee hereby
agrees that:
(i) All obligations that accrue under this Lease
(including the obligation to pay rent), from and after the
date that an Action is commenced shall be timely performed
exactly as provided in this Lease and any failure to so
perform shall be harmful and prejudicial to Lessor;
(ii) Any and all 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;
47
(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 distributor agreement with the gasoline
distributor for Permitted Facilities, or (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, 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 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 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
48
an option for Lessee to lease or otherwise create any interest on the
part of Lessee in the Properties.
45. Other Documents. (a) Each of the parties agrees to sign
such other and further documents as may be necessary or appropriate to
carry out the intentions expressed in this Lease.
(b) Upon Lessee's request, Lessor agrees to reasonably cooperate
with Lessee in connection with permit or license applications or similar
matters relating to the operations of the Properties or tax contests
relating to the Properties. Such cooperation shall include, to the
extent necessary under Applicable Regulations, executing such
applications or documents relating to such applications, matters or tax
contests. Such cooperation shall be at no cost or expense to Lessor,
and Lessee shall pay all reasonable expenses incurred by Lessor in
connection with such cooperation. Furthermore, Lessee shall indemnify,
protect, defend and hold harmless each of the Indemnified Parties for,
from and against any and all Losses (excluding 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) imposed upon or incurred by or asserted against any Indemnified
Parties and arising out of or in any way relating to such cooperation.
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 attorneys' fees and all
other costs incurred in the preparation and service of any notice or
demand hereunder, whether or not a legal action is subsequently
commenced. References in this Lease to Lessor's attorneys' fees and/or
costs shall mean both the fees and costs of independent counsel retained
by Lessor with respect to the matter and the fees and costs of Lessor's
in-house counsel incurred in connection with the matter.
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
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. For purposes of any
action or proceeding arising out of this Lease, the parties hereto
expressly submit to the jurisdiction of all federal and state courts
located in the State of Arizona. Lessee
48
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, Lessee and
Lessor waive and agree not to assert in any such action, suit or
proceeding that they are 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 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. Further, upon Lessor's request, Lessee agrees to
execute and acknowledge a termination of lease and/or quit claim deed in
recordable form with respect to each of the Properties to be held by
Lessor until the expiration or sooner termination of the Lease Term.
51. No Brokerage. Lessor and Lessee represent and warrant to
each other that they have had no conversation or negotiations with any
broker concerning the leasing of the Properties. Each of Lessor and
Lessee agrees to protect, indemnify, save and keep harmless the other,
against and from all liabilities, claims, losses, costs, damages and
expenses, including attorneys' fees, arising out of, resulting from or
in connection with their breach of the foregoing warranty and
representation.
52. Waiver of Jury Trial and Punitive, Consequential, Special and
Indirect Damages. LESSOR AND LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM
OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LESSOR AND LESSEE,
LESSEE'S USE OR OCCUPANCY OF 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 HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES THE RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL
AND INDIRECT DAMAGES FROM LESSOR AND ANY OF LESSOR'S AFFILIATES,
OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY LESSEE AGAINST LESSOR OR ANY OF
LESSOR'S AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF
THEIR SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS LEASE OR ANY DOCUMENT CONTEMPLATED HEREIN OR
RELATED HERETO. THE WAIVER BY LESSEE OF ANY RIGHT IT MAY HAVE TO SEEK
PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT
50
DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL
ASPECT OF THEIR BARGAIN.
53. Reliance By Environmental Insurer and Lender. (a) Lessee
acknowledges and agrees that Environmental Insurer may rely on the
representations, warranties and covenants set forth in Section 16 of
this Lease, that Environmental Insurer is an intended third-party
beneficiary of such representations, warranties and covenants and that
Environmental Insurer shall have all rights and remedies available at
law or in equity as a result of a breach of such representations,
warranties and covenants, including to the extent applicable, the right
of subrogation.
(b) 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 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 subsection 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 the terms of Section 21.C of this Lease permit such 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.
51
B. The substitution of a Substitute Property for a Property
pursuant to the preceding subsection 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.B being deemed to be
modified as contemplated by the following sentence,
to provide for a calculation of a "Fixed Charge
Coverage Ratio" for the Substitute Property only) for
the FCCR Period of not less than the greater of
(X) 1.25:1 or (Y) 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.B 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, and the Operating Lease Expense
with respect to this Lease for each such Property
shall equal the Applicable Rent Reduction Percentage
for such 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 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 and ▇▇▇▇ of sale, 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
52
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
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;
53
(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 or is deemed to have accepted the Rejectable
Substitution Offer, or while the Mortgage corresponding to such Property
is still outstanding, any rejection of the Rejectable Substitution Offer
by Lessor is not consented to in writing by the Lender:
(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 the Property to be replaced
to Lessee or a designee of Lessee "as-is" by special warranty
deed and ▇▇▇▇ of sale, subject to all matters of record
(except for (X) the Mortgage corresponding to the Property to
be replaced, (Y) any other consensual liens granted by Lessor
with respect to the Property to be replaced other than those
granted by Lessor at the request, or with the consent, of
Lessee, and (Z) any non-consensual liens against Lessor which
encumber the Property to be replaced and which do not result
from Lessee's failure to perform its obligations under this
Lease), and without representation or warranty.
D. Notwithstanding the foregoing, nothing in this Section 55
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.
56. Personalty. Lessor and Lessee acknowledge and agree that
Lessor is the owner of all Personalty located at or on the Properties as
of the Effective Date. Lessee shall at all times keep such Personalty
in good order, repair and condition and shall promptly replace any such
Personalty that from time to time may become obsolete, dilapidated,
badly worn or in a state of disrepair. Lessee may dispose of the
Personalty located at or on the Properties only if it is replaced with
new Personalty having comparable quality and utility to the replaced
Personalty. Lessee shall take no action which would encumber, dilute or
cloud Lessor's title or interest in the
54
Personalty located at or on the Properties. Lessee agrees that, at such
time as the existing prohibition against Lessee granting a landlord's
lien is no longer in effect, Lessor shall have a landlord's lien against
any replacements of the Personalty which are not owned by Lessor, which
landlord's lien shall secure the payment of all rental and other charges
payable by Lessee to Lessor under the terms hereof and all other
obligations of Lessee to Lessor under this Lease. Lessee further agrees
to execute and deliver to Lessor from time to time such financing
statements and other documents as Lessor may then deem appropriate or
necessary to perfect said landlord's lien.
57. State Specific Provisions. The provisions and/or remedies
which are set forth on Schedule II shall be deemed a part of and
included within the terms and conditions of this Lease.
55
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease
as of the date first above written.
LESSOR:
WITNESS/ATTEST: CROWN PRINCE PROPERTIES, LLC,
a Delaware limited liability company
By Crown Equity, LLC, a Delaware
limited liability company, its member
--------------------- By: --------------------------(SEAL)
▇▇▇▇▇ ▇▇▇▇▇▇▇
Its Vice President
LESSEE:
WITNESS/ATTEST: CROWN CENTRAL PETROLEUM
CORPORATION, a Maryland corporation
--------------------- By: --------------------------(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Its Vice President - Treasurer
Lessee's Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
POWER OF ATTORNEY
Lessor may act as attorney-in-fact or otherwise on behalf of Lessee
pursuant to Sections 24 and 30 of this Lease. This power of attorney is
coupled with an interest, is durable and is not affected by subsequent
disability or incapacity of the principal or lapse of time.
----------- -------------
Witness Lessee
WITNESS
In accordance with the requirements of Arizona Revised Statutes
Section 14-5506 and other applicable law, the undersigned has executed
this Lease for the purpose of witnessing the grant of the powers of
attorney by Lessee to Lessor.
----------------------------
STATE OF ARIZONA )
)SS
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on September --
-, 2000 by ▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President of Crown Equity, LLC, a
Delaware limited liability company, member of Crown Prince Properties,
LLC, a Delaware limited liability company, on behalf of the limited
liability company.
-------------------------
Notary Public
My Commission Expires:
--------------------------
STATE OF ARIZONA )
)SS
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on September --
-, 2000 by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President - Treasurer of Crown
Central Petroleum Corporation, a Maryland corporation, on behalf of the
corporation.
------------------------
Notary Public
My Commission Expires:
----------------------
EXHIBIT A
PROPERTIES
ADDRESS UNIT NO. LESSOR NO.
------- -------- -------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ AL 20 8001-1648
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ AL 31 8001-1649
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ AL 40 8001-1650
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ AL 21 8001-1651
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ AL 25 8001-1652
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ AL 508 8001-1653
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ NC 740 8001-1656
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ NC 567 8001-1657
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ NC 741 8001-1658
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ NC 751 8001-1659
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ VA 510 8001-1660
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ VA 512 8001-1661
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ VA 513 8001-1662
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ NC 43 8001-1674
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ VA 58 8001-1675
EXHIBIT A-1
LEGAL DESCRIPTIONS OF PROPERTIES
EXHIBIT B
FORM OF LETTER OF CREDIT
(LETTERHEAD OF APPROVED INSTITUTION)
DATE: --------------
Expiration Date: ---------------------------
TO: --------------------------------
No.:-------------------
--------------(the "Bank") hereby issues, for the account of Crown
Central Petroleum Corporation, our Irrevocable Letter of Credit in the
maximum principal amount of $----------- available to you by your draft
drawn on the Bank in accordance with the terms of this Irrevocable
Letter of Credit.
We hereby authorize you to draw on us in one or more draws up to the
total amount of $--------- U.S. Dollars available by your draft(s) in
the form attached as Exhibit "A", with appropriate insertions, presented
at the address appearing above, at any time on or before our close of
business on the expiration date appearing above, in the manner herein
provided, accompanied by your executed Certificate(s) in the form
attached as Exhibit "B", with appropriate insertions.
Payments made under this Irrevocable Letter of Credit will be made on
the business day following presentation of the draft and the
accompanying certificate in same-day wire transfer funds.
This Irrevocable Letter of Credit is transferable and assignable in its
entirety (but not in part). This Irrevocable Letter of Credit upon any
such transfer and assignment may be successively transferred and
assigned. Transfer of the right to draw under this Irrevocable Letter
of Credit to such transferee shall be effected by the presentation to
the Bank of this Irrevocable Letter of Credit accompanied by a
certificate substantially in the form attached hereto as Exhibit "C".
Upon your presentation and surrender of this Irrevocable Letter of
Credit, the Bank shall forthwith issue an Irrevocable Letter of Credit
to your successor with provisions consistent with this Irrevocable
Letter of Credit.
To the extent consistent with the express provisions hereof, this
Irrevocable Letter of Credit shall be governed by the Uniform Customs
and Practice for Documentary Credits (1993 revision), International
Chamber of Commerce Publication No. 500 ("UCP") and
to the extent consistent with the UCP and the express provisions hereof,
the laws of the State of ----------.
This Irrevocable Letter of Credit, including the Exhibits hereto, sets
forth in full the terms of our undertaking. Reference in this
Irrevocable Letter of Credit to other documents or instruments is for
identification purposes only, and such reference shall not modify or
affect the terms hereof or cause such documents or instruments to be
deemed incorporated herein.
We hereby agree that a draft drawn under and in compliance with this
Irrevocable Letter of Credit shall be duly honored upon presentation.
Issued and dated this ----- day of --------, 20--.
BANK:
---------------------
By:---------------------
Printed Name:-----------
Its:--------------------
2
EXHIBIT "A" TO THE LETTER OF CREDIT
FORM OF SIGHT DRAFT
DATE: ---------------
TO: [name and address of Bank]
Pay to the order of -----------------, a -------------------,
------------------------------- ($-------), drawn under Irrevocable
Letter of Credit No. ----------- dated
-------------, 20--, in favor of ------------------, a
---------------------------.
----------------------, a
----------------
By:-------------------------
Printed Name:---------------------
Its:------------------------------
EXHIBIT "B" TO THE LETTER OF CREDIT
FORM OF CERTIFICATE
DATE: -----------------
TO: (name and address of Bank)
RE: Irrevocable Letter of Credit No.-------------
The undersigned, a duly authorized officer of ------------, a
----------------------- ("Holder"), hereby certifies to
--------------- (Bank)-----------, the issuing bank under Irrevocable
Letter of Credit No.-------------- (the "Existing Letter of Credit")
issued in favor of Holder, that an event described in clauses (i) or
(ii) below has occurred:
(i) An Event of Default has occurred and is continuing under
the Master Lease dated as of September --, 2000 between
----------------- and Crown Central Petroleum Corporation (the "Master
Lease"); or
(ii) Holder has not been provided with a substitute or
replacement Letter of Credit issued by an Approved Institution for the
Existing Letter of Credit in the amount of the Existing Letter of Credit
at least 30 days prior to the scheduled expiration date of the Existing
Letter of Credit.
Capitalized terms used herein and not defined shall have the meanings
set forth in the Master Lease.
IN WITNESS WHEREOF, Holder has executed and delivered this certificate
as of the ---- day of --------, 20--.
-------------------, a
----------------
By:------------------------------
Printed Name:--------------------
Its:-----------------------------
EXHIBIT "C" TO THE LETTER OF CREDIT
FORM OF TRANSFER INSTRUMENT
DATE:----------------
TO: (name and address of Bank)
IRREVOCABLE LETTER OF CREDIT NO.--------------------
Gentlemen:
For value received, the undersigned ----------------------, a
--------------------------("Beneficiary"), hereby irrevocably assigns
to:
--------------------------------
(Name of Assignee)
--------------------------------
(Address)
all rights of Beneficiary to draw under the above Letter of Credit in
its entirety.
By this assignment, all rights of Beneficiary in such Letter of Credit
are transferred to the assignee, and the assignee shall hereafter have
the sole rights as beneficiary thereof; provided, however, that no
rights shall be transferred to an assignee unless such transfer and
assignment complies with the requirements of such Letter of Credit
pertaining to transfers and assignments.
The Letter of Credit is returned herewith and, in accordance therewith,
we ask you to issue a new Irrevocable Letter of Credit in favor of the
assignee with provisions consistent with the Letter of Credit.
-------------------, a
----------------
By:------------------------------
Printed Name:--------------------
Its:-----------------------------
SCHEDULE I
STIPULATED LOSS PERCENTAGE
DATE STIPULATED LOSS PERCENTAGE
---- --------------------------
SCHEDULE II
STATE SPECIFIC PROVISIONS
ALABAMA
The taxes and assessments required to be paid by Lessee pursuant to
Section 10 of the Lease shall also include any Alabama Business
Privilege Tax owed by Lessor or Remainderman which is attributable to
the period of time in which this Lease is in effect. Lessee shall remit
to Lessor the amount required to be paid by Lessor or Remainderman with
respect to the Alabama Business Privilege Tax annually within ten (10)
days after Lessor's request.
VIRGINIA
1. With respect to those Properties located in the State of
Virginia, the title of this Lease shall be deemed to be "DEED OF MASTER
LEASE".
2. With respect to those Properties located in the State of
Virginia, the phrase "and demises" is deemed to be inserted in the third
line of Section 2 after the phrase "Lessor hereby leases" and before the
word "to".
SCHEDULE III
LOCATIONS OF APPROVED INSTITUTIONS
New York
Chicago
Los Angeles
Baltimore
Phoenix
Charlotte
EXHIBIT C
FORM OF PROPERTY MONTHLY RETAIL P&L REPORT
(see attached)
