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Title: |
Master Lease |
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Entities: |
Avado Brands, Inc.; Avado Brands, Inc.; SouthTrust Bank; Wachovia Bank, NA |
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Date: |
2001 |
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Preview shows 36KB of 197KB total |
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$46 |
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ID: |
#851297 |
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<SEQUENCE>4
<FILENAME>0004.txt
<DESCRIPTION>MASTER LEASE AGEEEMENT DATED OCTOBER 19, 2000
<TEXT>
MASTER LEASE
THIS MASTER LEASE (this "Lease") is made as of October 19, 2000 (the
"Effective Date"), by and between PUBS PROPERTY, LLC, a Delaware limited
liability company ("Lessor"), whose address is c/o U.S. Realty Advisors, LLC,
1370 Avenue of the Americas, New York, New York 10019, and HOPS GRILL & BAR,
INC., a Florida corporation ("Lessee"), whose address is 2701 North Rocky Point
Drive, Suite 300, Tampa, Florida 33607.
W I T N E S S E T H :
THAT, in consideration of the mutual covenants and agreements herein
contained, Lessor and Lessee hereby covenant and agree as follows:
1. Certain Defined Terms. The following terms shall have the following
meanings for all purposes of this Lease:
"ADA" has the meaning set forth in Section 16.C.
"Additional Rental" has the meaning set forth in Section 5.C.
"Adjustment Date" means the first day of the month following the month in
which the first anniversary of the Effective Date occurs, and every anniversary
thereafter during the Lease Term (including the extension periods if Lessee
exercises its option pursuant to Section 27).
"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 Assumed Base Annual Rental" means the aggregate amount of Base
Annual Rental required to be paid by Lessee during the Base Annual Rental
Period.
"Aggregate Fixed Charge Coverage Ratio" shall have the meaning set forth in
Section 8.A.
"Aggregate Rent Refund" means the positive difference, if any, between the
Aggregate Assumed Base Annual Rental and the CPI-Adjusted Rent.
"Applicable Regulations" means all applicable statutes, regulations, rules,
ordinances, codes, licenses, permits, orders and approvals of each Governmental
Authority having jurisdiction over Lessee and/or any of the Properties,
including, without limitation, all health, building, fire, safety and other
codes, ordinances and requirements and all applicable standards of the National
Board of Fire Underwriters and the ADA, in each case, as amended, and any
judicial or administrative interpretation thereof, including any judicial order,
consent, decree or judgment applicable to Lessee.
"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 IV
and having, at the time of selection, (i) a long-term deposit or long-term
unsecured debt rating of at least AA or its equivalent issued by Standard &
Poors Rating Group, Moody's 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.
1
<PAGE>
"Average CPI Increase" means the CPI Increase divided by two.
"Base Annual Rental" means $3,402,030.24, subject to the increases provided
for in Section 5.B.
"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.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq.,
as amended.
"Consent Agreement" means that certain Consent Agreement and Order, Docket
No. 00-AL-J-07-0315-CC, In Re: Food Service Permit No. 32-2545, regarding the
Property located at 5195 Fernandina Road, Columbia, South Carolina signed on
July 31, 2000.
"CPI" means the Consumer Price Index which is designated for the applicable
month of determination as the United States City Average for All Urban
Consumers, All Items, Not Seasonally Adjusted, with a base period equaling 100
in 1993-1995, as published by the United States Department of Labor's Bureau of
Labor Statistics or any successor agency.
"CPI Adjusted Rent" means the aggregate amount of Base Annual Rental that
would have been paid during the entire Base Annual Rental Period had the Base
Annual Rental on each CPI Adjustment Date been increased over the Base Annual
Rental immediately preceding such CPI Adjustment Date by two and one-half times
the applicable CPI Increase.
"CPI Adjustment Date" means October 17, 2001, and every anniversary
thereafter during the Lease Term.
"CPI Increase" means the quotient (expressed as a percentage) of (a) the
positive difference, if any, between (i) the CPI for the month which is two
months prior to the applicable Adjustment Date and (ii) the CPI for the month
which is twenty-six months prior to such Adjustment Date (the "Base CPI"), and
(b) the Base CPI. In the event the statistics are not available or in the event
that publication of the CPI is modified or discontinued in its entirety, the CPI
Increase shall be determined on the basis of an index chosen by Lessor as a
comparable and recognized index of the purchasing power of the United States
consumer dollar published by the United States Department of Labor or other
governmental agency. In the event that the CPI contemplated herein is not
reported for the months required for the calculation set forth above, the
parties agree to utilize the CPI reported for the month(s) nearest preceding the
month(s) required for such calculation.
"Credit Agreement" means that certain Credit Agreement dated as of June 22,
1999 among Guarantor, Wachovia Bank, N.A., not in its individual capacity, but
in its capacity as agent for certain financial institutions, and such financial
institutions, as amended by agreements dated as of August 23, 1999, October 4,
1999, March 31, 2000, and October 13, 2000
"De Minimis Amounts" shall mean, with respect to any given level of
Hazardous Materials, that level or quantity of Hazardous Materials in any form
or combination of forms, the use, storage or release of which does not
constitute a violation of, or require regulation or remediation under, any
Environmental Laws and is customarily employed in the ordinary course of, or
associated with, similar businesses located in the states in which the
Properties are located.
"Default Rate" means 15% per annum or the highest rate permitted by law,
whichever is less.
2
<PAGE>
"Disclosures" has the meaning set forth in Section 8.C.
"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 and/or the protection of human health or
the environment, by reason of a Release or a Threatened Release of Hazardous
Materials or relating to liability for or costs of Remediation or prevention of
Releases. "Environmental Laws" includes, but is not limited to, the following
statutes, as amended, any successor thereto, and any regulations, rulings,
orders or decrees promulgated pursuant thereto, and any state or local statutes,
ordinances, rules, regulations and the like addressing similar issues: the
Comprehensive Environmental Response, Compensation and Liability Act; the
Emergency Planning and Community Right-to-Know Act; the Hazardous Materials
Transportation Act; the Resource Conservation and Recovery Act (including but
not limited to Subtitle I relating to underground storage tanks); the Solid
Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances
Control Act; the Safe Drinking Water Act; the Occupational Safety and Health
Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide
and Rodenticide Act; the Endangered Species Act; the National Environmental
Policy Act; and the River and Harbors Appropriation Act. "Environmental Laws"
also includes, but is not limited to, any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law: conditioning transfer of property upon a negative declaration or
other approval of a Governmental Authority of the environmental condition of the
property; requiring notification or disclosure of Releases or other
environmental condition of 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 in connection with permits or other authorization for lawful
activity; relating to nuisance, trespass or other causes of action related to
Hazardous Materials; and relating to wrongful death, personal injury, or
property or other damage in connection with the physical condition or use of any
of the Properties by reason of the presence of Hazardous Materials in, on, under
or above any of the Properties.
"Environmental Liens" 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.
"Equipment Transfer Agreement" means that certain Equipment Transfer
Agreement dated as of October 17, 2000, among Pubs Property, LLC, First Security
Bank, National Association, SunTrust Bank, STI Credit Corporation, BancBoston
Leasing, Inc., and Southtrust Bank, N.A.
"Event of Default" has the meaning set forth in Section 23.
"Extended Term" means the period subsequent to the expiration of the
Primary Term which this Lease is actually in effect.
"FFCA Entities" means, collectively, Lender, Franchise Finance and any
Affiliate of Lender and Franchise Finance.
"FCCR Period" means the twelve month period of time immediately preceding
the date on which Lessee gives written notice to Lessor that Lessee is proposing
to substitute a Substitute Property as permitted by Section 56.A.
3
<PAGE>
"Fixed Charge Coverage Ratio" has the meaning set forth in Section
56.B(i)(2).
"Franchise Finance" means Franchise Finance Corporation of America, a
Delaware corporation, and its successors and assigns.
"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.
"Gross Sales" means the sales or other income arising from all business
conducted at all of the Properties by Lessee during the period of determination,
less sales tax and any amounts received from not-for-profit sales of all
non-food items approved for use in connection with promotional campaigns, if
any, for all of the Properties.
"Guarantor" means Avado Brands, Inc., a Georgia corporation.
"Guaranty" means that certain unconditional guaranty of payment and
performance dated as of the date of this Lease to be executed by Guarantor with
respect to the obligations of Lessee under this Lease, as the same may be
amended from time to time.
"Hazardous Materials" means (i) any toxic substance or hazardous waste,
substance, solid waste, or related material, or any pollutant or contaminant;
(ii) radon gas, asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contains
dielectric fluid containing levels of polychlorinated biphenyls in excess of
federal, state or local safety guidelines, whichever are more stringent, or any
petroleum product; (iii) any substance, gas, material or chemical which is or
may be defined as or included in the definition of "hazardous substances,"
"toxic substances," "hazardous materials," "hazardous wastes," "regulated
substances" or words of similar import under any Environmental Laws; and (iv)
any other chemical, material, gas or substance the exposure to or release of
which is or 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.
"Lease Year" means the 12-month period commencing on the first day of the
calendar year or any other 12-month period as may be approved in writing by
Lessor after the commencement of the Lease Term and each successive 12-month
period thereafter.
"Lender" means FFCA Acquisition Corporation, a Delaware corporation, its
successors and assigns, any successor lender in connection with any loan secured
4
<PAGE>
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, Guarantor and all Affiliates
of Lessee and Guarantor.
"Letter of Credit" means a letter of credit substantially in the form
attached to this Lease as Exhibit B issued by an Approved Institution in
accordance with the terms of Section 23.A(ix)(2) of this Lease.
"Loan Agreement" means the Loan Agreement dated as of the date of this
Lease in effect between Lessor and Lender, as such agreement may be amended from
time to time and any and all replacements or substitutions thereof.
"Loan Documents" means, collectively, the Loan Agreement, the Notes, the
Mortgages and all other documents, instruments and agreements executed in
connection therewith or contemplated thereby, all as amended and supplemented
and any and all replacements or substitutions thereof.
"Loan Pool" has the meaning set forth in the Loan Agreement.
"Losses" means any and all claims, suits, liabilities (including, without
limitation, strict liabilities), actions, proceedings, obligations, debts,
damages, losses, costs, expenses, diminutions in value, fines, penalties,
charges, fees, expenses, judgments, awards, amounts paid in settlement and
damages of whatever kind or nature (including, without limitation, attorneys'
fees, court costs and other costs of defense).
"Maturity Date" means November 1, 2020.
"Maximum Allowed Annual Rental" means, for any fiscal year of Lessee in
which Lessee has failed to satisfy the Aggregate Fixed Charge Coverage Ratio
requirement, an amount equal to (x) the sum of Net Income, Depreciation and
Amortization, Interest Expense and Operating Lease Expense, less a corporate
overhead allocation in an amount equal to 5% of Gross Sales, divided by (y)
1.25.
"Memorandum" means the memorandum of master lease dated as of the date of
this Lease between Lessor and Lessee with respect to the Properties. A duplicate
original Memorandum will be executed and recorded in the applicable real
property records for each Property. Each Memorandum will contain exhibits with
the addresses and store identification numbers for all of the Properties and the
legal description for the applicable Property.
"Mortgages" means, collectively, the mortgages, deeds of trust or deeds to
secure debt, assignments of rents and leases, security agreements and fixture
filings dated as of even date herewith executed by Lessor for the benefit of
Lender with respect to the Properties, as such instruments may be amended,
restated and/or supplemented from time to time and any and all replacements or
substitutions thereof.
"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.
5
<PAGE>
"Permitted Facility" means a Hops Restaurant Bar & Brewery restaurant or
such other restaurant concepts of Guarantor and its subsidiaries which are
approved by Lessor, such approval not to be unreasonably withheld, conditioned
or delayed.
"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 personal property from time to time situated on or used in
connection with the Properties, including, without limitation, the personal
property identified on Schedule II attached to this Lease; provided, however,
the 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, all of which items are intended to be fixtures as such term is used
within the definition of "Properties".
"Prepayment Charges" means, for purposes of this Lease, an amount equal to
any prepayment premium or charge, 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, all rights, privileges and
appurtenances associated therewith, (ii) all buildings, structures, fixtures and
other improvements now or hereafter located on such real estate (whether or not
affixed to such real estate), and (iii) all Personalty owned by Lessor as of the
Effective Date and all Personalty conveyed to Lessor as contemplated by the
Security Agreement.
"Property" means any one of the Properties.
"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, and in the aggregate the amount of $28,371,573.60.
"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.
"Rejectable Offer" has the meaning set forth in Section 21.B.
"Rejectable Substitution Offer" has the meaning set forth in Section 56.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.
"Rent Adjustment Amount" means an amount equal to the difference between
(x) the Base Annual Rental then in effect, and (y) the Maximum Allowed Annual
Rental.
"Remainderman" means Suds 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, any actions to prevent, cure or mitigate any Release,
6
<PAGE>
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.
"Rent Factor" means the then current Base Annual Rental divided by the
aggregate Purchase Price.
"Sale-Leaseback Agreement" means that certain Sale-Leaseback Agreement
dated as of the date hereof among Lessor, Lessee and Guarantor with respect to
the Properties.
"Sale-Leaseback Documents" means the Sale-Leaseback Agreement, this Lease,
the Security Agreement, the Equipment Transfer Agreement 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.
"Security Agreement" means that certain Conveyance and Security Agreement
dated as of the date of this Lease among Lessor, Guarantor and Lessee.
"Substitute Property" means one or more parcels of real estate substituted
for any of the Properties in accordance with the requirements of Section 56,
together with all rights, privileges and appurtenances associated therewith, and
all buildings, structures, fixtures and other improvements located thereon. For
purposes of clarity, where two or more parcels of real property comprise a
Substitute Property, such parcels shall be aggregated and deemed to constitute
the Substitute Property for all purposes of this Lease.
"Threatened Release" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the soil, surface waters,
groundwaters, land, stream sediments, surface or subsurface strata, ambient air
or any other environmental medium comprising or surrounding any of the
Properties which may result from such Release.
"Title Company" means Lawyers Title Insurance Corporation, or such other
nationally recognized title insurance company reasonably acceptable to Lessor.
"Transfer" means any sale, transfer or assignment of any document
evidencing loan obligations, or any or all servicing rights with respect
thereto.
2. Demise of Properties. In consideration of the rentals and other sums to
be paid by Lessee and of the other terms, covenants and conditions on Lessee's
part to be kept and performed, Lessor hereby leases to Lessee, and Lessee hereby
takes and hires, the Properties. The Properties are leased to Lessee "AS IS" and
"WHERE IS" without representation or warranty by Lessor and subject to the
rights of parties in possession, to the existing state of title, any state of
facts which an accurate survey or physical inspection might reveal, and all
Applicable Regulations now or hereafter in effect. Lessee has examined each of
7
<PAGE>
the Properties and title to each of the Properties and has found all of the same
satisfactory for all of Lessee's purposes.
3. Characterization of Lease. A. Lessor and Lessee intend that:
(i) this Lease constitutes a single master lease of all, but not less than
all, of the Properties and that Lessor and Lessee have executed and delivered
this Lease with the understanding that this Lease constitutes a unitary,
unseverable instrument pertaining to all, but not less than all, of the
Properties, and that neither this Lease nor the duties, obligations or rights of
Lessee may be allocated or otherwise divided among the Properties by Lessee;
(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.
B. Lessor 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 the 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 the 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
8
<PAGE>
of the Effective Date and shall expire on November 30, 2020, unless terminated
sooner as provided in this Lease and as may be extended for four periods of five
years each as set forth in Section 27 below. The time period during which this
Lease shall actually be in effect is referred to herein as the "Lease Term."
5. Rental and Other Payments. A. If the Effective Date is a date other than
the first day of the month, Lessee shall pay Lessor on the Effective Date the
Base Monthly Rental prorated on the basis of the ratio that the number of days
from the Effective Date through the last day in the month containing the
Effective Date bears to the number of days in such month. Thereafter, on or
before the first day of each succeeding calendar month, Lessee shall pay Lessor
in advance the Base Monthly Rental.
B. Commencing on the first Adjustment Date and on each Adjustment Date
thereafter, the Base Annual Rental shall increase by an amount equal to the
product of the then-current Base Annual Rental multiplied by 1.2%. The increased
Base Annual Rental shall constitute the Base Annual Rental due and payable until
the next Adjustment Date.
C. 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.
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