Georgia-Marietta Lease - Landfair LLC and Dave & Buster's I LP
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LEASE AGREEMENT
By and Between
LANDFAIR, LLC,
a California limited liability company
(As Landlord)
AND
DAVE & BUSTER'S I, L.P.,
a Texas limited partnership
(As Tenant)
December 17, 2001
Marietta, Georgia
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TABLE OF CONTENTS
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Page
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1. Demise of Premises..................................................... 4
2. Certain Definitions.................................................... 4
3. Title and Condition.................................................... 8
4. Use of Leased Premises; Quiet Enjoyment................................ 10
5. Term................................................................... 11
6. Rent................................................................... 12
7. Net Lease; Non-Terminability........................................... 13
8. Payment of Impositions; Compliance with Legal Requirements and
Insurance Requirements................................................. 14
9. Liens; Recording and Title............................................. 15
10. Indemnification........................................................ 15
11. Maintenance and Repairs................................................ 16
12. Alterations............................................................ 18
13. Condemnation........................................................... 18
14. Insurance.............................................................. 22
15. Restoration............................................................ 26
16. Subordination to Financing............................................. 27
17. Assignment or Subleasing............................................... 29
18. Permitted Contests..................................................... 30
19. Conditional Limitations; Default Provisions............................ 31
20. Additional Rights of Landlord and Tenant............................... 34
21. Notices................................................................ 35
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22. Estoppel Certificates.................................................. 36
23. Surrender and Holding Over............................................. 37
24. No Merger of Title..................................................... 37
25. Definition of Landlord................................................. 38
26. Environmental Covenants and Indemnity.................................. 38
27. Entry by Landlord...................................................... 40
28. No Usury............................................................... 40
29. Separability........................................................... 41
30. Miscellaneous.......................................................... 41
31. Additional Rent........................................................ 42
32. Note Default........................................................... 42
33. Representations and Warranties......................................... 42
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "LEASE") made as of the 17th day of December
2001, by and between, LANDFAIR, LLC, a California limited liability company,
having an office at c/o Elysee Management Group, Inc., 27520 Hawthorne
Boulevard, Suite 235, Rolling Hills, California 90274 ("LANDLORD"), and DAVE &
BUSTER'S I, L.P., a Texas limited partnership, having its principal office at
2481 Manana Drive, Dallas, Texas 75220 ("TENANT"). The obligations of Tenant
under this Lease are guaranteed by Dave & Buster's, Inc., a Missouri corporation
(the "GUARANTOR") pursuant to a Guaranty (the "GUARANTY") of even date herewith,
in the form attached hereto as Exhibit D.
In consideration of the rents and provisions herein stipulated to be paid
and performed, Landlord and Tenant, intending to be legally bound, hereby
covenant and agree as follows:
1. Demise of Premises. Landlord hereby demises and leases to Tenant and
Tenant hereby takes and leases from Landlord for the term and upon the
provisions hereinafter specified the following described property (collectively,
the "LEASED PREMISES"): (i) the lot or parcel of land described on Exhibit A
attached hereto and made a part hereof, together with the easements, rights, and
appurtenances thereunto belonging or appertaining ("LAND"); (ii) the buildings,
structures, and other improvements now located or hereafter constructed on the
Land (collectively, the "IMPROVEMENTS"); and (iii) the machinery and equipment
which are attached to the Improvements in such a manner as to become fixtures
under applicable law, together with all additions and accessions thereto,
substitutions therefor and replacements thereof permitted by this Lease
(collectively, the "EQUIPMENT"), excepting therefrom the Trade Fixtures (as
hereinafter defined). Attached hereto as Exhibit E and Exhibit F, respectively,
are schedules listing the Equipment and the Trade Fixtures, as the same exist on
the date hereof.
2. Certain Definitions.
"ADDITIONAL RENT" shall mean Additional Rent as defined in Paragraph
31.
"ADJOINING PROPERTY" shall mean all sidewalks, curbs, gores, and
vault spaces adjoining the Leased Premises.
"ALTERATION" or "ALTERATIONS" shall mean any or all changes,
additions (whether or not adjacent to or abutting any then-existing buildings),
expansions (whether or not adjacent to or abutting any then-existing buildings),
improvements, reconstructions, removals, or replacements of any of the
Improvements or Equipment, both interior or exterior, and ordinary and
extraordinary.
"BASIC RENT" shall mean Basic Rent as defined in Paragraph 6.
"BASIC RENT PAYMENT DATES" shall mean the Basic Rent Payment Dates
as defined in Paragraph 6.
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"COMMENCEMENT DATE" shall mean the Commencement Date as defined in
Paragraph 5.
"CONDEMNATION" shall mean a Taking and/or a Requisition.
"DEFAULT RATE" shall mean the Default Rate as defined in Paragraph
19(b)(iv).
"ENVIRONMENTAL LAWS" shall mean any present or future federal, state
or local laws, ordinances, rules or regulations pertaining to Hazardous
Substances, industrial hygiene or environmental conditions, including without
limitation the following statutes and regulations, as amended from time to time:
(i) the Federal Clean Air Act, 42 U.S.C. Section 7401 et seq.; (ii) the Federal
Clean Water Act, 33 U.S.C. Section 1151 et seq.; (iii) the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); (iv) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Section 9601 et seq. ("CERCLA") and the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 ("SARA"); (v)
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; (vi) the
National Environment Policy Act, 42 U.S.C. Section 1857 et seq.; (vii) the Toxic
Substance Control Act of 1976, 15 U.S.C. Section 2601 et seq.; (viii) the
regulations of the Environmental Protection Agency, 33 CFR and 40 CFR; (ix)
regulations of the Occupational Safety and Health Administration ("OSHA")
relating to asbestos; and (x) similar statutes, rules and regulations of any
State.
"ENVIRONMENTAL CLAIMS" shall mean, individually and collectively,
any claims, actions, administrative proceedings, judgments, damages, punitive
damages, penalties, fines, costs, liabilities, sums paid in settlement,
interest, losses or expenses (including reasonable attorneys' fees and costs,
whether incurred in enforcing this Lease, collecting any sums due hereunder,
settlement negotiations, at trial or on appeal), consultant fees and expert
fees, together with all other costs and expenses of any kind or nature, that
arise directly or indirectly from or in connection with the existence or
suspected existence of a Hazardous Condition, whether occurring or suspected to
have occurred before, on or after the date of this Lease or caused by any person
or entity. Without limiting the generality of the foregoing definition,
Environmental Claims specifically include claims, whether by related or third
parties, for personal injury or real or personal property damage, and capital,
operating and maintenance costs incurred in connection with any Remedial Work.
"EQUIPMENT" shall mean the Equipment as defined in Paragraph 1.
"EVENT OF DEFAULT" shall mean an Event of Default as defined in
Paragraph 19(a).
"GUARANTY" and "GUARANTOR" shall having the meanings given them in
the preamble of this Lease.
"HAZARDOUS CONDITION" shall mean the presence, discharge, disposal,
storage or release of any Hazardous Substance on or in the Improvements, air,
soil, groundwater, surface
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water or soil vapor on or about the Leased Premises, or that migrates, flows,
percolates, diffuses or in any way moves onto or into the Leased Premises, or
from the Leased Premises into adjacent or other property.
"HAZARDOUS SUBSTANCES" means any hazardous or toxic substances,
materials or wastes, including without limitation any flammable explosives,
radioactive materials, asbestos in any form, concentration or condition, kepone,
polychlorinated biphenyls (PCB's), electrical transformers, batteries, paints,
solvents, chemicals, petroleum products, or other materials, substances or
wastes exhibiting radioactive, hazardous, ignitable, reactive, carcinogenic or
toxic characteristics, or otherwise dangerous to human, plant, or animal health
or well-being, and further including those substances, materials, and wastes
listed in the United States Department of Transportation Table (49 CFR 972.101)
or by the Environmental Protection Agency, as hazardous substances (40 CFR Part
302, and amendments thereto) or such substances, materials and wastes which are
or become regulated under any Environmental Law, including without limitation
any material, waste or substance which is (i) petroleum, (ii) asbestos, (iii)
PCB's, (iv) designated as a "hazardous substance," "hazardous waste," "hazardous
materials," "toxic substances," "contaminants," or (v) other pollution under any
applicable Environmental Laws.
"IMPOSITIONS" shall mean the Impositions as defined in Paragraph 8.
"IMPROVEMENTS" shall mean the Improvements as defined in Paragraph
1.
"INSURANCE REQUIREMENT" or "INSURANCE REQUIREMENTS" shall mean, as
the case may be, any one or more of the terms of each insurance policy required
to be carried by Tenant under this Lease and the requirements of the issuer of
such policy, and whenever Tenant shall be engaged in making any Alteration or
Alterations, repairs or construction work of any kind (collectively, "WORK"),
the term "INSURANCE REQUIREMENT" or "INSURANCE REQUIREMENTS" shall include a
requirement that Tenant obtain or cause its contractor to obtain completed value
builder's risk insurance when the estimated cost of the Work in any one instance
exceeds the sum of One Hundred Thousand Dollars ($100,000.00) and that Tenant or
its contractor shall obtain worker's compensation insurance or other adequate
insurance coverage covering all persons employed in connection with the Work,
whether by Tenant, its contractors or subcontractors.
"LAND" shall mean the Land as defined in Paragraph 1.
"LAW" shall mean any constitution, statute, or rule of law.
"LEASED PREMISES" shall mean the Leased Premises as defined in
Paragraph 1.
"LEGAL REQUIREMENT" or "LEGAL REQUIREMENTS" shall mean, as the case
may be, any one or more of all present and future Laws, codes, ordinances,
orders, judgments, decrees, injunctions, rules, regulations and requirements
(including, but not limited to, Environmental Laws), even if unforeseen or
extraordinary, of every duly constituted governmental authority or agency (but
excluding only those which by their terms are not applicable to and do not
impose
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any obligation on Tenant, Landlord, any occupant of the Lease Premises or all or
any part of the Leased Premises) and all covenants, restrictions and conditions
now or hereafter of record which may be applicable to Tenant, Landlord (with
respect to the Leased Premises) any occupant of the Lease Premises or to all or
any part of or interest in the Leased Premises, or to the use, manner of use,
occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of the Leased Premises, even if compliance therewith (i)
necessitates structural changes or improvements (including changes required to
comply with the "Americans with Disabilities Act of 1990") or results in
interference with or precludes the use, occupancy or enjoyment of the Leased
Premises or (ii) requires Tenant to carry insurance other than as required by
the provisions of this Lease.
"LENDER" shall mean an entity identified as such in writing to
Tenant that makes a Loan to Landlord, secured by a Mortgage and evidenced by a
Note or which is the holder of the Mortgage and Note as a result of an
assignment thereof.
"LOAN" shall mean a loan made by a Lender to Landlord secured by a
Mortgage and evidenced by a Note.
"MORTGAGE" shall mean a mortgage, deed of trust or similar security
instrument hereafter executed covering the Leased Premises from Landlord to a
Lender.
"NET AWARD" shall mean the entire award payable to Landlord by
reason of a Condemnation, less any reasonable expenses incurred by Landlord in
collecting such award.
"NET PROCEEDS" shall mean the entire proceeds of any insurance
required under clauses (i), (iv), (v) or (vi) of Paragraph 14(a), less any
actual and reasonable expenses incurred by Landlord in collecting such proceeds.
"NOTE" or "NOTES" shall mean a Promissory Note or Notes hereafter
executed from Landlord to a Lender, which Note or Notes will be secured by a
Mortgage or Mortgages and, in some case, an assignment(s) of leases and rents.
"PERMITTED ENCUMBRANCES" shall mean those covenants, restrictions,
reservations, liens, conditions, encroachments, easements, and other matters of
title that affect the Leased Premises as of the date of Landlord's acquisition
thereof and thereafter, excepting, however, any such matters arising solely from
the acts of Landlord (such as liens arising as a result of judgments against
Landlord) as to which Tenant has not consented (such consent not to unreasonably
be withheld).
"REMEDIAL ACTION" means any investigation or monitoring of site
conditions, any clean-up, containment, remediation, removal or restoration work
required by this Lease or required or performed by any federal, state or local
governmental agency or political subdivision or performed by any nongovernmental
entity or person, or any fines, penalties, or cost
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contributions paid or payable by any nongovernmental entity or person, due to
the existence or suspected existence of a Hazardous Condition.
"REPLACED EQUIPMENT" or "REPLACEMENT EQUIPMENT" shall mean the
Replaced Equipment and Replacement Equipment, respectively, as defined in
Paragraph 11(d).
"REQUISITION" shall mean any temporary condemnation or confiscation
of the use or occupancy of the Leased Premises (or any part thereof) by any
governmental authority, civil or military, whether pursuant to an agreement with
such governmental authority in settlement of or under threat of any such
requisition or confiscation, or otherwise.
"RESTORATION" shall mean the Restoration as defined in Paragraph
13(c)(i).
"STATE" shall mean the State of Georgia.
"TAKING" shall mean any taking of the Leased Premises (or a part
thereof) in or by condemnation or other eminent domain proceedings pursuant to
any law, general or special, or by reason of any agreement with any condemner in
settlement of or under threat of any such condemnation or other eminent domain
proceedings or by any other means, or any de facto condemnation.
"TERM" shall mean the Term as defined in Paragraph 5.
"TERMINATION DATE" shall mean the Termination Date as defined in
Paragraph 13(b)(i)(A).
"TRADE FIXTURES" shall mean all fixtures, equipment and other items
of personal property (including such items as are attached to the Improvements
and the removal of which can be accomplished without material damage to the
Improvements) that are owned by Tenant and used in the operation of the business
conducted on the Leased Premises.
3. Title and Condition.
a. The Leased Premises are demised and let subject to (i) the
Permitted Encumbrances and such other matters as may be set forth in Schedule B,
Part 1 of the owner's title insurance policy relating to the Leased Premises
issued to Landlord in connection with its acquisition of the Leased Premises,
(ii) all Legal Requirements and Insurance Requirements, including any existing
violation of any thereof, (iii) the condition of the Leased Premises as of the
commencement of the Term, (iv) the rights of parties in possession as of the
date hereof, and (v) any state of facts which an accurate survey or physical
inspection of the Leased Premises might show, all without representation or
warranty, express or implied, by Landlord; it being understood and agreed,
however, that the recital of the Permitted Encumbrances herein shall not be
construed as a revival of any thereof which for any reason may have expired.
Tenant has
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examined the title to the Leased Premises on and as of the Commencement Date and
has found the same to be satisfactory for all purposes.
b. LANDLORD LEASES AND WILL LEASE AND TENANT TAKES AND WILL TAKE
THE LEASED PREMISES "AS IS", AND TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER
ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT
MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING ANY
WARRANTY OR REPRESENTATION AS TO ITS FITNESS FOR ANY USE OR PURPOSE, DESIGN OR
CONDITION FOR ANY PARTICULAR USE OR PURPOSE, AS TO THE QUALITY OF THE MATERIAL
OR WORKMANSHIP THEREIN, LATENT OR PATENT, AS TO LANDLORD'S TITLE THERETO, OR AS
TO VALUE, COMPLIANCE WITH LEGAL REQUIREMENTS, INSURANCE REQUIREMENTS
SPECIFICATIONS, LOCATION, USE, CONDITION, MERCHANTABILITY, QUALITY, DESCRIPTION,
DURABILITY OR OPERATION, IT BEING AGREED THAT ALL RISKS INCIDENT TO ALL OF THESE
MATTERS ARE TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES THAT THE LEASED PREMISES
ARE OF ITS SELECTION AND THAT THE LEASED PREMISES AND ALL COMPONENTS THEREOF
HAVE BEEN DEVELOPED, DESIGNED, SPECIFIED AND CONSTRUCTED, AT TENANT'S REQUEST,
TO TENANT'S SPECIFICATIONS BY A CONTRACTOR SELECTED OR APPROVED BY TENANT AND
HAVE BEEN INSPECTED BY TENANT AND ARE SATISFACTORY TO IT IN ALL RESPECTS. IN THE
EVENT OF ANY DEFECT OR DEFICIENCY IN ANY OF THE LEASED PREMISES OF ANY NATURE,
WHETHER PATENT OR LATENT, LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR
LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL, CONSEQUENTIAL OR OTHER
DAMAGES (INCLUDING STRICT LIABILITY IN TORT). THE PROVISIONS OF THIS PARAGRAPH 3
(b) HAVE BEEN NEGOTIATED, AND THE FOREGOING PROVISIONS ARE INTENDED TO BE A
COMPLETE EXCLUSION AND NEGATION OF ANY REPRESENTATIONS OR WARRANTIES BY
LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES,
ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE AS ADOPTED BY THE STATE OR ANY
OTHER LAW OR REGULATION NOW OR HEREAFTER IN EFFECT OR OTHERWISE.
c. Landlord hereby assigns, without recourse or warranty
whatsoever, to Tenant, all warranties, guaranties, and indemnities, express or
implied, and similar rights which Landlord may have, if any, against any
architect, manufacturer, seller, engineer, contractor, subcontractor, supplier,
or builder with respect to any of the Leased Premises, including, but not
limited to, any rights and remedies existing under contract or pursuant to the
Uniform Commercial Code as adopted by the State (collectively, the
"GUARANTIES"). Such assignment shall remain in effect until the termination of
this Lease. Landlord shall also retain the right to enforce any assigned
Guaranties in the name of Tenant and at Tenant's expense upon the occurrence of
an Event of Default. Landlord hereby agrees to execute and deliver at Tenant's
expense such further documents (but not including powers of attorney), as Tenant
may reasonably request in order that Tenant may have the full benefit of the
assignment effected or intended to be effected by this Paragraph 3(c). Upon the
termination of this Lease, the
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Guaranties shall automatically revert to Landlord. The foregoing provision of
reversion shall be self-operative and no further instrument of reassignment
shall be required. In confirmation of such reassignment Tenant shall execute and
deliver promptly any certificate or other instrument that Landlord may
reasonably request. Any monies collected by Tenant under any of the Guaranties
after the occurrence of and during the continuation of an Event of Default shall
be held in trust by Tenant and promptly paid over to Landlord. Tenant shall
indemnify, defend (using counsel satisfactory to Landlord, or Landlord may elect
to defend itself at Tenant's expense) and hold harmless Landlord from and
against any claims, expenses (including reasonable attorney's fees),
liabilities, costs, losses or damages arising out of or relating to Tenant's
enforcement of any of the Guaranties.
d. Landlord agrees to enter into, at Tenant's sole cost and
expense (including, but not limited to Landlord's reasonable legal fees), such
easements, covenants, waivers, approvals or restrictions for utilities, parking
or other matters as desirable for operation of the Leased Premises or properties
adjacent thereto (collectively, "EASEMENTS") as reasonably requested by Tenant,
subject to Lender's and Landlord's approval of the form thereof, not to be
unreasonably withheld or delayed; provided, however, that no such Easement shall
result in any material diminution in the value or utility of the Leased Premises
and further provided that no such Easement shall render the use of the Leased
Premises dependent upon any other property or condition the use of the Leased
Premises upon the use of any other property, each of which Tenant shall certify
to Landlord and Lender in writing delivered with Tenant's request with respect
to such Easement. Tenant's request shall also include Tenant's written
undertaking acknowledging that Tenant shall remain liable hereunder as principal
and not merely as a surety or guarantor notwithstanding the establishment of any
Easement.
e. Tenant agrees that Tenant is obligated to and shall perform
all obligations of the owner of the Leased Premises under and pay all expenses
which the owner of the Leased Premises may be required to pay in accordance with
any reciprocal easement agreement or any other agreement or document of record
now or (if consented to in writing by Tenant, which consent Tenant agrees shall
not be unreasonably withheld, delayed or conditioned) in the future affecting
the Leased Premises (herein referred to collectively as the "REA"), and that
Tenant shall comply with all of the terms and conditions of any REA during the
Term of this Lease. Tenant further covenants and agrees to indemnify, defend
(using counsel satisfactory to Landlord, or Landlord may elect to defend itself
at Tenant's expense), and hold harmless Landlord and Lender against any claim,
loss, expense (including reasonable attorney's fees), liability or damage
suffered by Landlord or Lender arising out of or relating to Tenant's failure to
perform any obligations or pay any expenses as and when required under any REA
or comply with the terms and conditions of any REA as hereinabove provided
during the Term of this Lease.
4. Use of Leased Premises; Quiet Enjoyment.
a. Tenant may use the Leased Premises as an
entertainment-recreation-amusement-restaurant-bar complex similar to other Dave
& Buster's facilities in the United States providing goods and services, which
goods and services may primarily include, but not be
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limited to, the provision, sale, rental, and use for pecuniary consideration, of
virtual reality games, video games, so-called arcade games, rides and
amusements, billiards, golf, play-for-fun blackjack, bowling, dance, nightclub
and other amusements, food, beverages (alcoholic and non-alcoholic), party and
catering facilities and play areas (some of which games, rides, etc. may provide
for the opportunity to win prizes and/or other benefits, e.g., additional free
games, by direct reward or through any other method, either directly or via a
process of redemption) (any one or more of the foregoing uses is sometimes
referred to herein as an "ENTERTAINMENT/FOOD USE"), or any lawful use that does
not violate: (i) the terms of any REA, (ii) any Legal Requirements, or (iii) any
Insurance Requirements. The parties hereby recognize that this type of complex
is in a constantly evolving state, as is the entertainment-recreation-amusement
industry and that, provided Tenant operates the Dave & Buster's herein in a
consistent manner as it is then operating substantially all other Dave &
Buster's facilities in the United States, changes consistent with such evolution
may occur. In no event shall the Leased Premises be used for any purpose
(including Entertainment/Food Use) that shall violate any Permitted Encumbrance,
Legal Requirements, Insurance Requirements, or any covenants, restrictions, or
agreements hereafter created by or consented to by Tenant applicable to the
Leased Premises. Tenant agrees that with respect to the Permitted Encumbrances,
Legal Requirements, Insurance Requirements, and any covenants, restrictions, or
agreements hereafter created by or consented to by Tenant, Tenant, at its sole
cost and expense, shall observe, perform and comply with and carry out the
provisions thereof required therein to be observed and performed by Landlord.
b. Subject to Tenant's rights under Paragraph 18 hereof, Tenant
shall not permit or suffer any unlawful occupation, business, trade or other
activities to be conducted on or about the Leased Premises or any use to be made
thereof contrary to applicable Legal Requirements or Insurance Requirements.
Subject to Tenant's rights under Paragraph 18, Tenant shall not use, occupy, or
permit or suffer any of the Leased Premises to be used or occupied, nor do or
permit or suffer anything to be done in or on or about any of the Leased
Premises, in a manner which would (i) make void or voidable any insurance which
Tenant is required hereunder to maintain then in force with respect to any of
the Leased Premises, (ii) affect the ability of Tenant to obtain any insurance
which Tenant is required to furnish hereunder, (iii) cause any injury or damage
to any of the Improvements unless pursuant to Alterations permitted under
Paragraph 12 hereof, or (iv) constitute a public or private nuisance or waste. .
c. Subject to all of the provisions of this Lease, so long as no
Event of Default exists hereunder, Landlord covenants to do no act to disturb
the peaceful and quiet occupation and enjoyment of the Leased Premises by
Tenant.
5. Term.
a. Subject to the provisions hereof Tenant shall have and hold
the Leased Premises for an initial term commencing on December 17, 2001 (the
"COMMENCEMENT DATE"), and ending December 31, 2021 (the "EXPIRATION DATE") (such
initial term, together with any Renewal Term, as hereinafter defined, which
comes into effect as hereinafter provided, is herein called the "TERM").
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b. Provided this Lease shall not have been terminated pursuant to
the provisions of Paragraphs 13(b) or 19, and provided further that no Event of
Default or circumstance (other than a non-monetary default as to which Landlord
has given notice to Tenant and other than a monetary default), which with the
passage of time or the giving of notice or both would constitute an Event of
Default exists when Tenant gives its Renewal Term Notice (as hereinafter
defined) or on the date the applicable Renewal Term (as hereinafter defined) is
to commence, Tenant shall have the option to renew this Lease for four (4)
consecutive five (5) year periods (collectively, the "RENEWAL TERMS" and
individually, a "RENEWAL TERM"). Tenant shall give the Landlord written notice
("RENEWAL TERM NOTICE") of its intent to renew this Lease at least twelve (12)
months and not more than eighteen (18) months prior to the Expiration Date or
the expiration date of the applicable Renewal Term, as applicable. Each Renewal
Term shall be subject to all of the provisions of this Lease, and all such
provisions shall continue in full force and effect, except that the Basic Rent
for each Renewal Term shall be the amounts determined in accordance with the
schedule set forth in Exhibit B attached hereto and made a part hereof. If
Tenant shall fail to timely give a Renewal Term Notice, then all options with
regard to subsequent Renewal Terms shall expire and be null and void.
6. Rent.
a. Tenant shall pay to Landlord (or to Lender, if directed by
Landlord), as minimum annual rent for the Leased Premises during the Term, the
amounts set forth in Exhibit B attached hereto ("BASIC RENT"), commencing on the
Commencement Date for the succeeding, prorated month, and continuing regularly
on the first (1st) calendar day of each month thereafter during the Term, in
advance (the said days being called the "BASIC RENT PAYMENT Dates"), and shall
pay the same at Landlord's address set forth below, or at such other place as
Landlord from time to time may designate to Tenant in writing, in funds which at
the time of such payment shall be legal tender for the payment of public or
private debts in the United States of America and if required by Landlord or
Lender by wire transfer in immediately available federal funds to such account
in such bank as Landlord or Lender shall designate, from time to time.
b. Tenant shall pay and discharge before the imposition of any
fine, lien, interest or penalty may be added thereto for late payment thereof,
as Additional Rent, all other amounts and obligations which Tenant assumes or
agrees to pay or discharge pursuant to this Lease, together with every fine,
penalty, interest and cost which may be added by the party to whom such payment
is due for nonpayment or late payment thereof. In the event of any failure by
Tenant to pay or discharge any of the foregoing, Landlord shall have all rights,
powers and remedies provided herein, by law or otherwise, in the event of
nonpayment of Basic Rent.
c. If any installment of Basic Rent is not paid within five (5)
days after written notice is given by Landlord or Lender (or Lender's servicer
or other designee of Lender) to Tenant that the same is overdue, Tenant shall
pay to Landlord or Lender, as the case may be, on demand, as Additional Rent, a
late charge equal to five percent (5%) (the "LATE CHARGE") on such overdue
installment of Basic Rent, but in no event more than the maximum amount allowed
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by law. The Late Charge shall be in addition to, and shall not limit, Landlord's
other rights or remedies under this Lease, at law or in equity.
d. Landlord and Tenant agree that this Lease is a true lease and
does not represent a financing arrangement. Each party shall reflect the
transactions represented by this Lease in all applicable books, records, and
reports (including, without limitation, income tax filings) in a manner
consistent with "true lease" treatment rather than "financing" treatment.
7. Net Lease; Non-Terminability.
a. This Lease is an absolutely net lease, and Tenant shall have
an unconditional obligation to pay Basic Rent, Additional Rent, and all other
sums payable hereunder by Tenant, without notice or demand, and without setoff,
counterclaim, recoupment, abatement, suspension, deferment, diminution,
deduction, reduction, or defense.
b. Except as otherwise expressly provided in Section 13b or 14g
hereof, this Lease shall not terminate, nor shall Tenant have any right to
terminate this Lease, nor shall the obligations of Tenant under this Lease be
affected for any reason whatsoever, including but not limited to the following:
(i) any damage to or destruction of any of the Leased Premises by any cause
whatsoever, (ii) any Condemnation, (iii) the prohibition, limitation, or
restriction of or interference with Tenant's use of any of the Leased Premises,
(iv) any eviction by paramount title or otherwise, (v) Tenant's acquisition of
ownership of any of the Leased Premises other than pursuant to an express
provision of this Lease, (vi) any default on the part of Landlord under this
Lease or under any other agreement, (vii) any latent or other defect in, or any
theft or loss of any of the Leased Premises, (viii) the breach of any warranty
of any seller or manufacturer of any of the Equipment, (ix) any violation of
Paragraph 4(c) by Landlord, or (x) any other cause whatsoever, whether similar
or dissimilar to the foregoing, any present or future Legal Requirement the
contrary notwithstanding. It is the intention of the parties hereto that the
obligations of Tenant under this Lease shall be separate and independent
covenants and agreements, and that Basic Rent, Additional Rent, and all other
sums payable by Tenant hereunder shall continue to be payable in all events (or,
in lieu thereof, Tenant shall pay amounts equal thereto), and that the
obligations of Tenant under this Lease shall continue unaffected, unless this
Lease shall have been terminated pursuant to an express provision of this Lease.
c. Tenant agrees that it shall remain obligated under this Lease
in accordance with its provisions and that, except as otherwise expressly
provided in Section 13b or 14g hereof, it shall not take any action to
terminate, rescind or avoid this Lease, notwithstanding (i) the bankruptcy,
insolvency, reorganization, composition, readjustment, liquidation, dissolution,
winding-up or other proceeding affecting Landlord, (ii) the exercise of any
remedy, including foreclosure, under the Mortgage, or (iii) any action with
respect to this Lease (including the disaffirmance hereof) which may be taken by
Landlord under the Federal Bankruptcy Code or by any trustee, receiver or
liquidator of Landlord or by any court under the Federal Bankruptcy Code or
otherwise.
<PAGE>
d. This Lease is the absolute and unconditional obligation of
Tenant. To the extent permitted by applicable law, Tenant waives all rights
which are not expressly stated in this Lease but which may now or hereafter
otherwise be conferred by law (i) to quit, terminate or surrender this Lease or
any of the Leased Premises, (ii) to any setoff, counterclaim, recoupment,
abatement, suspension, deferment, diminution, deduction, reduction or defense of
or to Basic Rent, Additional Rent or any other sums payable under this Lease,
except as otherwise expressly provided in this Lease, and (iii) for any
statutory lien or offset right against Landlord or its property.
8. Payment of Impositions; Compliance with Legal Requirements and
Insurance Requirements.
a. i) Subject to the provisions of Paragraph 18 hereof
relating to contests, Tenant shall, before delinquency thereof, pay and
discharge the following whether the same became due and payable before, on or
after the Commencement Date (collectively, the "IMPOSITIONS"): all taxes of
every kind and nature (including real, ad valorem, personal property, sales,
use, and gross rental or other gross receipts taxes), assessments, levies, fees,
water and sewer rents and charges, utilities and communications taxes and
charges and all other governmental charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, which are, at any time, prior to or
during the Term, imposed upon or assessed against (A) the Leased Premises or any
portion thereof or interest therein, (B) any Basic Rent, Additional Rent or
other sum payable hereunder, (C) this Lease or the leasehold estate created
hereby, or (D) the acquisition, occupancy, leasing, subleasing, licensing, use,
possession or operation of the Leased Premises or any portion thereof or
interest therein (including without limitation, any taxes on revenues, rents,
income, awards, proceeds, capital gains, profits, excess profits, gross
receipts, sales, use, excise and other taxes, duties or imports whether similar
or not in nature, assessed, levied or imposed against Landlord, Tenant, any
subtenant or any licensee, or the Leased Premises by any governmental
authority). If received by Landlord, Landlord shall promptly deliver to Tenant
any bill or invoice with respect to any Imposition.
ii) Nothing herein shall obligate Tenant to pay, and the
term "IMPOSITIONS" shall exclude, federal, state or local (A) transfer taxes as
the result of a conveyance by (or suffered by) Landlord to a party other than
Tenant or an affiliate of Tenant, (B) franchise, capital stock or similar taxes
if any, of Landlord, (C) net income, excess profits or other taxes, if any, of
Landlord, determined on the basis of or measured by its net income, or (D) any
estate, inheritance, succession, gift, capital levy or similar taxes, unless the
taxes referred to in clauses (B) and (C) above are in lieu of or a substitute
for any other tax or assessment upon or with respect to any of the Leased
Premises which, if such other tax or assessment were in effect at the
commencement of the Term, would be payable by Tenant under this Lease. In the
event that any assessment against any of the Leased Premises may be paid in
installments, Tenant shall have the option to pay such assessment in
installments; and in such event, Tenant shall be liable only for those
installments that become due and payable during the Term or are allocable to the
Term. Tenant shall prepare and file all tax reports required by governmental
authorities that relate to the Impositions. Tenant shall deliver to Landlord and
to Lender, within twenty (20) days after Tenant's receipt thereof, copies of all
settlements and notices pertaining to the
<PAGE>
Impositions which may be issued by any governmental authority and receipts for
payments of all Impositions made during the Term.
b. Subject to the provisions of Paragraph 18 hereof, Tenant
shall, at its sole cost and expense, promptly comply and cause the Leased
Premises to comply with and conform to all of the Legal Requirements and
Insurance Requirements applicable to the ownership, occupancy or use of all or
any part thereof, including those which require structural, unforeseen or
extraordinary changes or additions to the Leased Premises.
9. Liens; Recording and Title.
a. Subject to the provisions of Paragraph 18 hereof, Tenant shall
not, directly or indirectly, create or permit to be created or to remain, and
shall promptly discharge, any lien, mortgage, encumbrance, claim or other charge
on the Leased Premises, on the Basic Rent, Additional Rent or on any other sums
payable by Tenant under this Lease, other than the Mortgage, and any mortgage,
lien, monetary encumbrance or other charge created by or resulting solely from
any act or omission by Landlord or those claiming by, through or under Landlord
(except Tenant or those claiming by, through or under Tenant). Notice is hereby
given that Landlord shall not be liable for any labor, services, or materials
furnished or to be furnished to Tenant, or to anyone holding any of the Leased
Premises through or under Tenant, and that no mechanic's or other liens for any
such labor, services or materials shall attach to or affect the interest of
Landlord in and to any of the Leased Premises.
b. Each of Landlord and Tenant shall execute, acknowledge and
deliver to the other a written Memorandum of this Lease to be recorded in the
appropriate land records of the jurisdiction in which the Leased Premises is
located, in order to give public notice and protect the validity of this Lease.
In the event of any discrepancy between the provisions of said recorded
Memorandum of this Lease and the provisions of this Lease, the provisions of
this Lease shall prevail.
c. Nothing in this Lease or otherwise and no action or inaction
by Landlord shall be deemed or construed to mean that Landlord has granted to
Tenant any right, power or permission to do any act or to make any agreement
which may create, give rise to, or be the foundation for, any right, title,
interest, or lien in or upon the estate of Landlord in any of the Leased
Premises.
10. Indemnification.
a. TENANT AGREES TO DEFEND (USING COUNSEL SATISFACTORY TO
LANDLORD, OR LANDLORD MAY ELECT TO DEFEND ITSELF AT TENANT'S EXPENSE), PAY,
PROTECT, INDEMNIFY, SAVE AND HOLD HARMLESS LANDLORD AND LENDER, AND ANY PARTNER,
SHAREHOLDER, MEMBER, OFFICER, DIRECTOR, MANAGER, EMPLOYEE AND AGENT OF EACH (THE
"INDEMNIFIED PARTIES"), FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES,
DAMAGES, PENALTIES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND
EXPENSES), CAUSES OF ACTION, SUITS, CLAIMS, DEMANDS, OR
<PAGE>
JUDGMENTS OF ANY NATURE WHATSOEVER, HOWSOEVER CAUSED (EXCEPT IF CAUSED SOLELY BY
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD), ARISING FROM OR
RELATING TO THE LEASED PREMISES OR THE USE, NON-USE, OCCUPANCY, CONDITION,
DESIGN, CONSTRUCTION, MAINTENANCE, REPAIR, OR REBUILDING OF THE LEASED PREMISES,
INCLUDING BUT NOT LIMITED TO THOSE ARISING FROM OR RELATING TO: (I) ANY INJURY
TO OR DEATH OF ANY PERSON OR PERSONS OR ANY LOSS OF OR DAMAGE TO ANY PROPERTY,
REAL OR PERSONAL, IN ANY MANNER ARISING THEREFROM CONNECTED THEREWITH OR
OCCURRING THEREON, WHETHER OR NOT LANDLORD HAS OR SHOULD HAVE KNOWLEDGE OR
NOTICE OF THE DEFECT OR CONDITIONS, IF ANY, CAUSING OR CONTRIBUTING TO SAID
INJURY, DEATH, LOSS, DAMAGE OR OTHER CLAIM AND REGARDLESS OF THE NEGLIGENCE OF
THE LANDLORD OR ANY OF ITS AGENTS, OFFICERS, DIRECTORS, PARTNERS, SHAREHOLDERS,
MANGERS, MEMBERS, CONTRACTORS OR EMPLOYEES; (II) ANY CONTEST REFERRED TO IN
PARAGRAPH 18 HEREOF; (III) ANY ENVIRONMENTAL CLAIMS (AS HEREINAFTER DEFINED),
AND (IV) ANY BREACH OF TENANT'S REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS
LEASE. IN CASE ANY ACTION OR PROCEEDING IS BROUGHT AGAINST ONE OR MORE OF THE
INDEMNIFIED PARTIES BY REASON OF ANY SUCH CLAIM AGAINST WHICH TENANT HAS AGREED
TO DEFEND, PAY, PROTECT, INDEMNIFY, SAVE AND HOLD HARMLESS PURSUANT TO THE
PRECEDING SENTENCE, TENANT COVENANTS UPON NOTICE FROM SUCH INDEMNIFIED PARTY(S)
TO RESIST OR DEFEND SUCH INDEMNIFIED PARTY(S) IN SUCH ACTION, WITH THE EXPENSES
OF SUCH DEFENSE PAID BY TENANT, AND SUCH INDEMNIFIED PARTY(S) WILL COOPERATE AND
ASSIST IN THE DEFENSE OF SUCH ACTION OR PROCEEDING IF REASONABLY REQUESTED SO TO
DO BY TENANT.
b. The obligations of Tenant under this Paragraph 10 and all
other indemnification obligations of Tenant contained elsewhere in this Lease
shall be cumulative and shall survive the expiration or any termination of this
Lease.
11. Maintenance and Repairs.
a. Except for any Alterations that Tenant is permitted to make
pursuant to this Lease, Tenant shall at all times, including but not limited to
any Requisition period, put, keep, and maintain the Leased Premises (including,
without limitation, the roof, landscaping, walls, footings, foundations, and
other structural components of the Leased Premises) and the Equipment in the
same condition and order of repair as exists as of the date of this Lease,
except for ordinary wear and tear, and shall promptly make all repairs and
replacements of every kind and nature (including but not limited to those
"capital" in nature or structural), whether foreseen or unforeseen, which may be
required to be made upon or in connection with the Leased Premises in order to
keep and maintain the Leased Premises in the order and condition required by
this Paragraph 11a. Tenant shall do or cause others to do all shoring of the
Leased Premises or of foundations and walls of the Improvements and every other
act necessary or appropriate for preservation and safety thereof, by reason of
or in connection with any excavation or other building operation upon any of the
Leased Premises, whether or not Landlord shall, by reason of any Legal
Requirements or Insurance Requirements, be required to take such action or be
liable for failure to do so. Landlord shall not be required to make any repair
or replacement, whether foreseen or unforeseen, or to maintain any of the Leased
Premises or Adjoining Property in any way, and Tenant hereby expressly waives
the right to make or perform maintenance repairs or replacements at the expense
of the Landlord, which right may be provided for in any Legal Requirement now or
hereafter in effect. Nothing in the preceding sentence shall be deemed to
preclude Tenant from being entitled to insurance proceeds or condemnation awards
for
<PAGE>
Restoration pursuant to Paragraphs 13(c) and 14(g) of this Lease. Tenant shall,
in all events, make or perform all maintenance repairs and replacements for
which it is responsible hereunder promptly, and all such replacements repairs
and maintenance shall be in a good, proper and workmanlike manner and of equal
or better quality than the original.
b. In the event that any Improvement shall violate any Legal
Requirements or Insurance Requirements and as a result of such violation
enforcement action is threatened or commenced against Tenant or with respect to
the Leased Premises, then Tenant at its sole cost and expense, at the request of
Landlord, shall either (i) obtain valid and effective waivers or settlements of
all claims, liabilities and damages resulting from each such violation, whether
or not the same shall affect Landlord, Tenant, the Leased Premises or all or any
of them, or (ii) take such action as shall be necessary to remove such
violation, including, if necessary, any Alteration. Any such repair or
Alteration shall be made at Tenant's sole cost and expense in conformity with
the provisions of Paragraph 12 of this Lease.
c. If Tenant shall be in default under any of the provisions of
this Paragraph 11, Landlord may (but shall not be obligated) after fifteen (15)
days written notice given to Tenant and failure of Tenant to commence to cure
during said period, but without notice in the event of an emergency, do whatever
is necessary to cure such default as may be appropriate under the circumstances
for the account of and at the expense of Tenant. In the event of an emergency
Landlord may notify Tenant of the situation by phone or other available
communication. All reasonable sums so paid by Landlord and all reasonable costs
and expenses (including, without limitation, attorneys' fees and expenses) so
incurred, together with interest thereon at the Default Rate from the date of
payment or incurring the expense, shall constitute Additional Rent payable by
Tenant under this Lease and shall be paid by Tenant to Landlord on demand.
d. Tenant, at its sole cost and expense, shall from time to time
replace with new equipment or parts which are the same quality or better than
that which is being replaced (the "REPLACEMENT EQUIPMENT") any of the Equipment
(the "REPLACED EQUIPMENT") which shall have become worn out or unusable for the
purpose for which it is intended, been taken by a Condemnation as provided in
Paragraph 13, or been lost, stolen, damaged or destroyed. Tenant promptly shall
repair at its sole cost and expense all damage to the Leased Premises caused by
the removal of Equipment or Replaced Equipment or other personal property of
Tenant or the installation of Replacement Equipment. All Replacement Equipment
shall become the property of Landlord, shall be free and clear of all liens,
claims, encumbrances, charges and rights of others and shall become a part of
the Equipment as if originally demised herein.
e. Notwithstanding the foregoing provisions of Section 11, Tenant
shall not be required to undertake replacement of the roof, exterior walls,
footings, or foundations of the Leased Premises during the last ten (10) months
of the Term or the Renewal Term(s), as the case may be, provided that Tenant
shall be required to replace same if replacement is attributable in whole or in
part to: (i) the negligence or willful acts or other fault of Tenant or anyone
holding any or all of the Leased Premises through or under Tenant, or any of
their respective agents, employees, contractors or invitees, or (ii) Tenant's
breach of this Lease (including, but not
<PAGE>
limited to, Tenant's deferral or other failure to perform maintenance, repairs
and replacements as and when required by this Lease).
f. Landlord shall have no obligations whatsoever for repairs,
replacements (including, but not limited to, those replacements, which but for
Paragraph 11 e. hereof, Tenant would be required to make) or maintenance of the
Leased Premises.
12. Alterations.
a. Tenant shall not make Alterations which would (after the
completion thereof) impair the structural integrity of the Leased Premises or
adversely affect the systems of the building(s) that are part of the Leased
Premises, without Landlord's written consent, which consent Landlord agrees not
unreasonably to withhold or delay. Tenant may make any other Alterations without
the prior written consent of the Landlord provided such Alterations comply with
all of the provisions of the following sentence.
b. In the event that Landlord gives its prior written consent to
any Alterations, or if such consent is not required, Tenant agrees that in
connection with any Alteration: (i) the fair market value of the Leased Premises
shall not be lessened in any material respect after the completion of any such
Alteration, or its structural integrity impaired or its systems adversely
affected; (ii) the Alteration and any Alteration theretofore made or thereafter
to be made shall not in the aggregate reduce the gross floor area of the
Improvements; (iii) all such Alterations shall be performed in a good and
workmanlike manner using new materials of a quality at least equal to the
quality of the original Improvements, and shall be expeditiously completed in
compliance with all Legal Requirements; (iv) all work done in connection with
any such Alteration shall comply with all Insurance Requirements; (v) Tenant
shall promptly pay all costs and expenses of any such Alteration, and shall
(subject to the provisions of Paragraph 18 hereof) discharge all liens filed
against any of the Leased Premises arising out of the same; (vi) Tenant shall
procure and pay for all permits and licenses required in connection with any
such Alteration; (vii) all such Alterations shall be the property of Landlord
and shall be subject to this Lease; and (viii) any Alteration which involves the
building systems, roof, foundations, footing or other or structural elements of
the Improvements, or the estimated cost of which in any one instance exceeds
Fifty Thousand Dollars ($50,000.00), shall be made under the supervision of an
experienced, licensed architect or engineer and in accordance with plans and
specifications which shall be submitted to Landlord (for informational purposes
only) prior to the commencement of the Alterations.
13. Condemnation.
a. Tenant, promptly after obtaining knowledge of the institution
of any proceeding for Condemnation, shall notify Landlord thereof and Landlord
shall be entitled to participate in any Condemnation proceeding. Landlord,
promptly after obtaining knowledge of the institution of any proceeding for
Condemnation, shall notify Tenant thereof and Tenant shall have the right to
participate in such proceedings. Subject to the provisions of this Paragraph 13
and Paragraph 15, Tenant hereby irrevocably assigns to Lender or to Landlord, in
that order, any
<PAGE>
award or payment in respect of any Condemnation of all or any part of the Leased
Premises, except that nothing in this Lease shall be deemed to assign to
Landlord or Lender any award or payment on account of the Trade Fixtures, moving
expenses and out-of-pocket expenses incidental to the move, if available, to the
extent Tenant shall have a right to make a separate claim therefor against the
condemner, it being agreed, however, that Tenant shall in no event be entitled
to any payment that reduces the award to which Landlord is or would be entitled
for the condemnation of all or any part of the Leased Premises. Notwithstanding
the foregoing, Tenant shall be entitled to any award or payment on account of
Tenant's leasehold interest under this Lease only in the event of a Condemnation
described in Paragraph 13(b)(i)(A) and then only to the extent that when such
award, added to all other awards to which Tenant is entitled hereunder, is
subtracted from the entire award in respect to all interests in the Leased
Premises, the remainder exceeds the total of the amount set forth on Exhibit C
attached hereto and made a part hereof plus the Additions to Purchase Price (as
hereinafter defined).
b. (i) (A) If (I) the entire Leased Premises or (II) at least
fifteen percent (15%) of the applicable Land or the building(s) constructed on
the Land or any means of ingress, egress, or access to the Leased Premises, the
loss of which even after Restoration would, in Tenant's reasonable business
judgment based on the effect of the Condemnation only, and not on the efficacy
of Tenant's business in the Leased Premises prior to the Condemnation or any
other factor, be substantially and materially adverse to the business operations
of Tenant at the Leased Premises, shall be subject of a Taking by a duly
constituted authority or agency having jurisdiction, then Tenant may, not later
than ninety (90) days after such Taking has occurred, serve notice ("TENANT'S
TERMINATION NOTICE") upon Landlord of Tenant's intention to terminate this Lease
on any Basic Rent Payment Date specified in such Tenant's Termination Notice,
which date (the "TERMINATION DATE") shall be no sooner than the first Basic Rent
Payment Date occurring at least one hundred eighty (180) days after the date of
such Tenant's Termination Notice.
(B) In the event that during the Initial Term or the
first Renewal Term, Tenant shall serve a Tenant's Termination Notice upon
Landlord, Tenant shall, as part of such Tenant's Termination Notice offer
(which offer may be accepted by Landlord only with Lender's consent as set
forth below in Paragraph 13(b)(i)(E) if the Leased Premises are then
subject to a Mortgage) to purchase the Leased Premises and the award (or
if no part of the Leased Premises shall remain, the entire award) for the
applicable price (the "PURCHASE PRICE") computed in accordance with the
schedule annexed hereto and marked Exhibit C plus all other amounts which
may have accrued and be owing to Lender or Landlord under this Lease (such
amounts being hereinafter collectively referred to as the "ADDITIONS TO
PURCHASE PRICE").
(C) If Landlord and Lender shall elect to reject
Tenant's offer to purchase, Landlord shall give notice thereof to Tenant
within thirty (30) days after the giving of Tenant's Termination Notice.
Should said notices of Landlord and Lender rejecting Tenant's offer to
purchase not be served within said period of sixty (60) days, then and in
that event, the said offer shall be deemed rejected.
<PAGE>
(D) Should an offer to purchase be rejected by
Landlord and Lender, this Lease shall be terminated as above provided and
the entire award made in the Condemnation proceeding with respect to the
Leased Premises shall be paid to Lender or to Landlord in that order.
(E) Landlord's notice to accept Tenant's offer to
purchase shall be void and of no effect unless accompanied by the written
notice of Lender (if the Leased Premises are then subject to a Mortgage)
to the effect that Lender also elects to accept Tenant's offer to
purchase.
(ii) In the event that Landlord and Lender shall accept
Tenant's offer to purchase, title shall close and the Purchase Price and
Additions to Purchase Price shall be paid as hereinafter provided and in
such event Tenant shall be entitled to and shall receive any and all
awards with respect to the Leased Premises then or thereafter made in the
Condemnation proceeding and Landlord shall assign (or in case of any award
previously made, deliver to Tenant on the Closing Date) such award as may
be made with respect to the Leased Premises. In the event Landlord and
Lender shall accept Tenant's offer to purchase with respect to the Leased
Premises, title shall close thirty (30) days after the Termination Date
hereinbefore defined (the "CLOSING DATE"), at noon at the local office of
Landlord's counsel, or at such other time and place as the parties hereto
may agree upon, this Lease shall be automatically extended to and
including the Closing Date (or, if applicable, the extended Closing Date
hereinafter described) and Tenant shall pay the Purchase Price and
Additions to Purchase Price by transferring immediately available funds to
such account or accounts and in such bank or banks as Lender or Landlord,
in that order, shall designate, upon delivery to Tenant of a deed (of the
same type pursuant to which the Leased Premises were conveyed to Landlord)
conveying the portion of the Leased Premises, if any, remaining after the
Taking and all other required documents including an assignment of any
award in connection with the taking of the Leased Premises. Such deed
shall convey title, free from encumbrances other than (A) Permitted
Encumbrances, (B) liens or encumbrances created or suffered by Tenant or
arising from or relating to the failure of Tenant to observe or perform
any of the terms, covenants or agreements herein provided to be observed
and performed by Tenant, (C) any installments of Impositions then
affecting the Leased Premises, (D) this Lease, (E) the Taking and (F) any
other matters as to which Tenant has consented. The Purchase Price and
Additions to Purchase Price payable as hereinabove provided shall be
charged or credited, as the case may be, on the Closing Date, to reflect
adjustments of Basic Rent paid or payable to and including the Closing
Date, apportioned as of the Closing Date. Tenant shall pay all closing
costs and expenses in connection with the purchase, including but not
limited to escrow costs, any costs of title insurance, and all conveyance,
transfer, sales and like taxes in connection with the purchase, regardless
of who is required to pay such taxes under State or local law or custom
(and Tenant shall also pay to Landlord any amount necessary to yield to
Landlord a net amount equal to the entire Purchase Price and Additions to
Purchase Price if as a matter of the Law of the State or locality such tax
cannot be paid directly by Tenant). If there be any liens or encumbrances
against the Leased Premises which Landlord is obligated to remove, upon
request made a reasonable time before the Closing Date, Landlord shall
provide at the
<PAGE>
Closing separate funds for the foregoing, payable to the holder of such
lien or encumbrances.
(iii) IF TENANT PURCHASES THE LEASED PREMISES PURSUANT TO THIS
PARAGRAPH 13b, LANDLORD WILL SELL AND TRANSFER THE LEASED PREMISES, AND
TENANT WILL PURCHASE AND TAKE THE LEASED PREMISES "AS IS", AND TENANT
ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS SELLER HEREUNDER OR IN ANY
OTHER CAPACITY) WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE,
ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF
THE LEASED PREMISES, INCLUDING ANY WARRANTY OR REPRESENTATION AS TO ITS
FITNESS FOR ANY USE OR PURPOSE, DESIGN OR CONDITION FOR ANY PARTICULAR USE
OR PURPOSE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN,
LATENT OR PATENT, AS TO LANDLORD'S TITLE THERETO, OR AS TO VALUE,
COMPLIANCE WITH LEGAL REQUIREMENTS, INSURANCE REQUIREMENTS SPECIFICATIONS,
LOCATION, USE, CONDITION, MERCHANTABILITY, QUALITY, DESCRIPTION,
DURABILITY OR OPERATION, IT BEING AGREED THAT ALL RISKS INCIDENT TO ALL OF
THESE MATTERS ARE TO BE BORNE BY TENANT (AS PURCHASER). TENANT
ACKNOWLEDGES THAT THE LEASED PREMISES ARE OF ITS SELECTION AND THAT THE
LEASED PREMISES AND ALL COMPONENTS THEREOF HAVE BEEN DEVELOPED, DESIGNED,
SPECIFIED AND CONSTRUCTED BY AN AFFILIATE OF TENANT AT TENANT'S REQUEST
AND HAVE BEEN INSPECTED BY TENANT AND WILL DURING THE TERM OF THE LEASE BE
MAINTAINED AND REPAIRED (AND WHEN NECESSARY, REPLACED) BY TENANT. IN THE
EVENT OF ANY DEFECT OR DEFICIENCY IN ANY OF THE LEASED PREMISES OF ANY
NATURE, WHETHER PATENT OR LATENT, LANDLORD SHALL NOT HAVE ANY
RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL,
CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING STRICT LIABILITY IN TORT). THE
PROVISIONS OF THIS PARAGRAPH 3b(iii) HAVE BEEN NEGOTIATED, AND THE
FOREGOING PROVISIONS ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION
OF ANY REPRESENTATIONS OR WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY OF THE LEASED PREMISES, ARISING PURSUANT TO THE UNIFORM
COMMERCIAL CODE AS ADOPTED BY THE STATE OR ANY OTHER LAW OR REGULATION NOW
OR HEREAFTER IN EFFECT OR OTHERWISE.
(iv) In the event that after the first Renewal Term, Tenant
shall serve a Tenant's Termination Notice upon Landlord, this Lease and
the Term hereof shall terminate on the Termination Date specified in the
Termination Notice; and in such event the entire award to the made in the
Condemnation proceeding shall be paid to Lender or to Landlord, in that
order.
<PAGE>
c. (i) In the event of a Condemnation of any part of the Leased
Premises which does not result in a Termination of this Lease, subject to the
requirements of Paragraph 15, the Net Award of such Condemnation shall be
retained by Landlord subject to the provisions of (c)(ii) below; and promptly
after such Condemnation, Tenant shall commence and diligently continue to
restore the Leased Premises as nearly as possible to its value, condition and
character immediately prior to such Condemnation, in accordance with the
provisions of this Lease, including but not limited to the provisions of
Paragraphs 11 (a), 12 and 15 (such restoration following a Condemnation and
restoration following a casualty is, as the context shall require, herein called
a "RESTORATION").
(ii) Upon the payment to Landlord of the Net Award of a
Taking which falls within the provisions of this Paragraph 13(c), Landlord and
Lender shall, to the extent received, make that portion of the Net Award equal
to the cost of Restoration (the "RESTORATION AWARD") available to Tenant for
Restoration, in accordance with the provisions of Paragraph 15, and promptly
after completion of the Restoration, the balance of the Net Award shall be
retained by Landlord (or if required by Lender, applied to reduce the
outstanding principal balance of any Note or Notes secured by a Mortgage), and
all Basic Rent, Additional Rent and other sums payable hereunder shall continue
unabated and unreduced.
(iii) In the event of a Requisition of the Leased Premises,
Landlord shall apply the Net Award of such Requisition, to the extent available,
to the installments of Basic Rent, Additional Rent or other sums payable by
Tenant hereunder thereafter payable and Tenant shall pay any balance remaining
thereafter. Upon the expiration of the Term, any portion of such Net Award which
shall not have been previously credited to Tenant on account of the Basic Rent
and Additional Rent shall be retained by Landlord.
d. Except with respect to an award or payment to which Tenant is
entitled pursuant to the provisions of Paragraph 13(a), 13(b) and 13(c), no
agreement with any condemner in settlement of or under threat of any
Condemnation shall be made by Tenant without the written consent of Landlord,
and of Lender, if the Leased Premises are then subject to a Mortgage, which
consent shall not be unreasonably withheld or delayed.
14. Insurance.
a. Tenant shall maintain at its sole cost and expense the
following insurance on the Leased Premises:
(i) Insurance against loss or damage to the Improvements and
Equipment under a fire and broad form of all risk extended coverage
insurance policy (which shall include flood insurance if the Leased
Premises is located within a flood hazard area and which shall include
earthquake insurance if the Leased Premises is located in an area where
earthquake insurance is customarily maintained for similar commercial
properties). Such insurance shall be in amounts sufficient to prevent
Landlord or Tenant from becoming a co-insurer under the applicable
policies, and in any event in amounts not less than the full replacement
cost of the Improvements and
<PAGE>
Equipment (including but not limited to the cost of demolition of the
damaged Improvements and the cost associated with changes in Legal
Requirements, but excluding footings and foundations and other parts of
the Improvements which are not insurable) as determined from time to time
at Lender's request but not more frequently than once in any 12-month
period, by agreement of Landlord, Lender, and Tenant, or if not so agreed,
at Tenant's expense, by the insurer or insurers or by an appraiser
approved by Landlord. Such insurance policies may contain commercially
reasonable exclusions and deductible amounts as such amounts are
determined by Landlord and Lender.
(ii) Commercial general liability insurance (including
contractual indemnity) against claims for bodily injury, death or property
damage occurring on, in or about the Leased Premises, which insurance
shall be written on a so-called "occurrence basis," and shall provide
minimum protection with a combined single limit in an amount not less than
Two Million Dollars ($2,000,000.00) and excess liability coverage of Ten
Million Dollars ($10,000,000.00) (or in each case in such increased limits
from time to time to reflect declines in the purchasing power of the
dollar as Landlord may reasonably request).
(iii) Worker's compensation insurance covering all persons
employed by Tenant on the Leased Premises in connection with any work done
on or about any of the Leased Premises for which claims for death or
bodily injury could be asserted against Landlord, Tenant or the Leased
Premises.
(iv) During periods of war or national emergency, war risk
insurance in an amount not less than the actual replacement cost of the
Improvements and Equipment (excluding footings and foundations and other
parts of the Improvements which are not insurable), when and to the extent
obtainable from the United States Government or an agency thereof at
reasonable cost.
(v) Insurance against loss or damage from explosion of any
steam or pressure boilers or similar apparatus located in or about the
Improvements in an amount not less than the full replacement cost of the
Improvements and Equipment (including but not limited to the cost of
demolition of the damaged Improvements and the cost associated with
changes in Legal Requirements, but excluding footings and foundations and
other parts of the Improvements which are not insurable).
(vi) Business interruption insurance in an amount equal to at
least one (1) year's Basic Rent.
(vii) Such additional and/or other insurance with respect to
the Improvements located on the Leased Premises and in such amounts as at
the time is customarily carried by prudent owners or tenants with respect
to improvements similar in character, location and use and occupancy to
the Improvements located on the Leased Premises.
<PAGE>
b. The insurance required by Paragraph 14(a) shall be written by
companies having a claims paying ability rating by Standard & Poors of not less
than A-, and all such companies shall be authorized to do an insurance business
in the State, or otherwise agreed to by Landlord and Lender. The insurance
policies (i) shall be in amounts sufficient at all times to satisfy any
coinsurance requirements thereof, and (ii) shall (except for the worker's
compensation insurance referred to in Paragraph 14(a)(iii) hereof) name
Landlord, Tenant, and any Lender as additional insured parties, as their
respective interests may appear, (iii) shall be for a term of not less than
twelve (12) months, (iv) shall be primary and non-contributory; (v) shall insure
all Tenant's indemnities given in this Lease, and (vi) shall contain a
cross-liability endorsement. No insurance maintained or required to be
maintained by Tenant hereunder or otherwise shall limit Tenant's indemnification
obligations under Paragraph 10 or any other provision of this Lease. If said
insurance or any part thereof shall expire, be withdrawn, become void by breach
of any condition thereof by Tenant or become void or unsafe by reason of the
failure or impairment of the capital of any insurer, Tenant shall immediately
obtain new or additional insurance reasonably satisfactory to Landlord and
Lender.
c. Each insurance policy referred to in clauses (i), (iv), (v),
(and (vi) if requested by Lender) of Paragraph 14(a), shall contain a mortgagee
loss payee clause and standard non-contributory mortgagee clauses in favor of
any Lender which holds a Mortgage on the Leased Premises. Each policy shall
provide that it may not expire or be canceled or materially modified as to
coverage or otherwise except after thirty (30) days prior written notice to
Landlord and any Lender. Each policy shall also provide that any losses
otherwise payable thereunder shall be payable notwithstanding (i) any act or
omission of Landlord or Tenant which might, absent such provision, result in a
forfeiture of all or a part of such insurance payment, (ii) the occupation or
use of any of the Leased Premises for purposes more hazardous than permitted by
the provisions of such policy, (iii) any foreclosure or other action or
proceeding taken by any Lender pursuant to any provision of the Mortgage upon
the happening of an event of default thereunder, or (iv) any change in title or
ownership or occupancy of the Leased Premises.
d. Tenant shall pay as they become due all premiums for the
insurance required by this Paragraph 14, shall renew or replace each policy, and
shall deliver to Landlord and Lender a certificate or other evidence (reasonably
satisfactory to Lender and Landlord) of the existing policy and such renewal or
replacement policy at least thirty (30) days prior to the expiration date of
each policy. Tenant shall also provide to Landlord true and correct copies of
each such policy promptly after Landlord's request therefor. Each such policy
shall provide that it shall not expire until the Landlord and the Lender shall
receive a notice from the insurer to the effect that a policy will expire on a
date which shall be thirty (30) days following the date of the receipt by
Landlord and Lender of such notice. In the event of Tenant's failure to comply
with any of the foregoing requirements of this Paragraph 14 within five (5)
business days of the giving of written notice by Landlord to Tenant, Landlord
shall be entitled (but not obligated) to procure such insurance. Any sums
expended by Landlord in procuring such insurance shall be Additional Rent and
shall be repaid by Tenant, together with interest thereon at the Default Rate,
from the time of payment by Landlord until fully paid by Tenant immediately upon
written demand therefor by Landlord.
<PAGE>
e. Anything in this Paragraph 14 to the contrary notwithstanding,
any insurance which Tenant is required to obtain pursuant to Paragraph 14(a) may
be carried under a "blanket" policy or policies covering other properties or
liabilities of Tenant, provided that such "blanket" policy or policies otherwise
comply with the provisions of this Paragraph 14 and do not reduce or otherwise
adversely affect coverage of the Leased Premises. In the event any such
insurance is carried under a blanket policy, Tenant shall deliver to Landlord
and Lender evidence of the issuance and effectiveness of the policy, the amount
and character of the coverage with respect to the Leased Premises and the
presence in the policy of provisions of the character required in the above
sections of this Paragraph 14.
f. In the event of any casualty loss exceeding Twenty Five
Thousand Dollars ($25,000.00), Tenant shall give Landlord immediate written
notice thereof. Tenant shall adjust, collect and compromise any and all claims,
with the consent of Lender and Landlord, not to be unreasonably withheld or
delayed, and Landlord and Lender shall have the right to join with Tenant
therein. If the estimated cost of Restoration or repair shall be One Hundred
Thousand Dollars ($100,000.00) or less, all proceeds of any insurance required
under clauses (i), (iv), and (v) (and (vi) if requested by Lender) of Paragraph
14(a) hereof shall be payable to Tenant, provided that Tenant is not in default
hereunder and that Tenant (or the guarantor of the Tenant's obligations under
this Lease) at such time shall have a tangible net worth of not less than One
Hundred Million Dollars ($100,000,000.00) as determined in accordance with
generally accepted accounting principles, consistently applied, and in all other
events to a Trustee which shall be a federally insured bank or other financial
institution, selected by Landlord and Tenant and reasonably satisfactory to
Lender (the "TRUSTEE"). If the Leased Premises shall be covered by a Mortgage,
Lender, if it so desires, shall be the Trustee. Each insurer is hereby
authorized and directed to make payment under said policies directly to such
Trustee instead of to Landlord and Tenant jointly; and Tenant and Landlord each
hereby appoints such Trustee as its attorney-in-fact to endorse any draft
therefor for the purposes set forth in this Lease after approval by Tenant of
such Trustee, if Trustee is other than Lender. Except as stated in Paragraph
14(g) below, in the event of any casualty (whether or not insured against)
resulting in damage to or depreciation of the Leased Premises or any part
thereof, the Term shall nevertheless continue and there shall be no abatement or
reduction of Basic Rent, Additional Rent or any other sums payable by Tenant
hereunder. The Net Proceeds of such insurance payment shall be retained by the
Trustee and, promptly after such casualty, Tenant, as required in accordance
with Paragraphs 11(a) and 12, shall commence and diligently continue to perform
the Restoration to the Leased Premises. Upon payment to the Trustee of such Net
Proceeds, the Trustee shall, to the extent available, make the Net Proceeds
available to Tenant for Restoration, in accordance with the provisions of
Paragraph 15. Tenant shall at its sole cost and expense, whether or not the Net
Proceeds are sufficient for the purpose, promptly repair or replace the
Improvements and Equipment in accordance with the provisions of Paragraph 11(a)
and the Net Proceeds of such loss shall thereupon be payable to Tenant, subject
to the provisions of Paragraph 15 hereof. In the event that any damage or
destruction shall occur at such time as Tenant shall not have maintained
third-party insurance in accordance with Paragraph 14(a)(i),(iv),(v) or (vi),
Tenant shall pay to the Trustee promptly after the occurrence of such damage or
destruction the amount of the proceeds that would have been payable had such
insurance program been in effect (the "TENANT INSURANCE PAYMENT").
<PAGE>
g. Notwithstanding anything to the contrary contained herein, if
at any time from and after the first thirty six (36) months of the first Renewal
Term all or substantially all of the Leased Premises are damaged or destroyed by
fire or other casualty which, in the Tenant's reasonable judgment renders the
Leased Premises unsuitable for Restoration to allow continued use and occupancy
by the Tenant, then Tenant may elect to terminate this Lease by written notice
to Landlord and Lender, but only if such election is made within ninety (90)
days of the casualty. If Tenant timely elects to terminate this Lease under this
Paragraph 14g, then this Lease shall terminate, and Tenant shall assign and
deliver all insurance proceeds to the Landlord and shall pay to Landlord the
amount of any deductibles.
15. Restoration. Net Proceeds, Restoration Award and Tenant Insurance
Payment (the aggregate of which being herein defined as the "RESTORATION FUND")
shall be disbursed by the Trustee in accordance with the following conditions:
a. If the cost of Restoration will exceed $100,000.00, prior to
commencement of the Restoration, the architects, general contractor(s), and
plans and specifications for the Restoration shall be approved by Landlord,
which approval shall not be unreasonably withheld or delayed; and which approval
shall be granted to the extent that the plans and specifications depict a
Restoration which is substantially similar to the Improvements and Equipment
which existed prior to the occurrence of the Casualty or Taking, whichever is
applicable.
b. At the time of any disbursement, no Event of Default shall
exist and no mechanics' or materialmen's liens shall have been filed and remain
undischarged or unbonded, subject to the provisions of Paragraph 18 hereof.
c. Disbursements shall be made from time to time in an amount not
exceeding the direct hard and direct soft cost of the Work and costs incurred
since the last disbursement upon receipt of (1) satisfactory evidence, including
architects' certificates of the stage of completion, of the estimated cost of
completion and of performance of the Work to date in a good and workmanlike
manner in accordance with the contracts, plans and specifications and with all
Insurance Requirements and Legal Requirements, (2) partial releases of liens,
and (3) other reasonable evidence of cost and payment so that Landlord can
verify that the amounts disbursed from time to time are represented by work that
is completed in place or delivered to the site and free and clear of mechanics'
lien claims and (4) satisfactory evidence that the undisbursed funds are
sufficient to complete the remaining Work.
d. Each request for disbursement shall be accompanied by a
certificate of Tenant describing the Work for which payment is requested,
stating the cost incurred in connection therewith and stating that Tenant has
not previously received payment for such Work, and the certificate to be
delivered by Tenant upon completion of the Work shall, in addition, state that
the Work has been substantially completed and complies with all Legal
Requirements, Insurance Requirements approved plans and specificiations and the
applicable requirements of this Lease.
<PAGE>
e. The Trustee may retain ten percent (10%) of the Restoration
Fund until thirty (30) days after the Restoration is substantially complete and
all governmental approvals are issued.
f. The Restoration Fund shall be kept in a separate
interest-bearing federally insured account by the Trustee or by Lender.
g. At all times the undisbursed balance of the Restoration Fund
held by Trustee plus any funds contributed thereto by Tenant, at its option,
shall be not less than the cost of completing the Restoration, free and clear of
all liens.
h. In addition, prior to commencement of Restoration and at any
time during Restoration, if the estimated cost of Restoration, as reasonably
determined by Landlord, exceeds the amount of the Net Proceeds, the Restoration
Award and Tenant Insurance Payment available for such Restoration, the amount of
such excess shall be paid by Tenant to the Trustee to be added to the
Restoration Fund or Tenant shall fund at its own expense the costs of such
Restoration until the remaining Restoration Fund is sufficient for the
completion of the Restoration. Any sum in the Restoration Fund which remains in
the Restoration Fund upon the completion of Restoration and disbursement of
funds (to the extent available) to Tenant covering the cost of the Work, and
return to Tenant of any unused funds which were added to the Restoration Fund by
Tenant, shall be paid to Landlord. For purposes of determining the source of
funds with respect to the disposition of funds remaining after the completion of
Restoration, the Net Proceeds or the Restoration Award shall be deemed to be
disbursed prior to any amount added by Tenant.
16. Subordination to Financing.
a. (i) Subject to the provisions of Paragraph 16 (a)(ii), and
subject to the execution and timely delivery to Tenant by Lender of an
instrument in accordance with Paragraph 16(d), Tenant agrees that this Lease
shall at all times be subject and subordinate to the lien of any Mortgage, and
Tenant agrees, upon demand, without cost, to execute instruments as may be
required to further effectuate or confirm such subordination.
(ii) Except as expressly provided in this Lease by reason of
the occurrence of an Event of Default, Tenant's tenancy and Tenant's rights
under this Lease shall not be disturbed, terminated, or otherwise adversely
affected, nor shall this Lease be affected, by any default under any Mortgage,
and in the event of a foreclosure or other enforcement of any Mortgage, or sale
in lieu thereof, the purchaser at such foreclosure sale shall be bound to
Tenant, subject to the provisions of Paragraph 25 hereof, for the Term of this
Lease and any Renewal Term, the rights of Tenant under this Lease shall
expressly survive, and this Lease shall in all respects continue in full force
and effect so long as no Event of Default has occurred and is continuing. Tenant
shall not be named as a party defendant in any such foreclosure suit, except as
may be required by law. Any Mortgage to which this Lease is now or hereafter
subordinate shall provide, in effect, that during the time this Lease is in
force insurance proceeds and
<PAGE>
Restoration Award shall be permitted to be used for Restoration in accordance
with the provisions of this Lease.
b. Notwithstanding the provisions of Paragraph 16(a), the holder
of any Mortgage to which this Lease is subject and subordinate shall have the
right, at its sole option, at any time, to subordinate and subject the Mortgage,
in whole or in part, to this Lease by recording a unilateral declaration to such
effect, provided that such holder shall have agreed that during the time this
Lease is in force, insurance proceeds and Restoration Award shall be permitted
to be used for restoration in accordance with the provisions of this Lease.
c. At any time prior to the expiration of the Term, Tenant
agrees, at the election and upon demand of any owner of the Leased Premises, or
of a Lender who has granted non-disturbance to Tenant pursuant to Paragraph
16(a) above, to attorn, from time to time, to any such owner or Lender, upon the
terms and conditions of this Lease, for the remainder of the Term. The
provisions of this Paragraph 16(c) shall inure to the benefit of any such owner
or Lender, shall apply notwithstanding that, as a matter of law, this Lease may
terminate upon the foreclosure of the Mortgage, shall be self-operative upon any
such demand, and no further instrument shall be required to give effect to said
provisions.
d. Each of Tenant, any owner and Lender, however, upon demand of
the other, hereby agrees to execute, from time to time, instruments in
confirmation of the foregoing provisions of Paragraphs 16(a) and 16(c)
reasonably satisfactory to the requesting party acknowledging such
subordination, non-disturbance and attornment as are provided in such
subsections, to the extent applicable.
e. Upon Lender's request, Landlord, Tenant and Lender shall enter
into a "subordination, nondisturbance and attornment" pursuant to which Tenant
shall subordinate its leasehold interest in the Leased Premises to the lien of
the Mortgage, and shall agree to attorn to Lender or any purchaser at a
foreclosure sale, as successor landlord, if Lender or any purchaser at a
foreclosure sale succeeds to Landlord's interest in the Leased Premises,
provided that Tenant's tenancy will not be disturbed as long as no Event of
Default has occurred hereunder. Such agreement shall include certain terms and
conditions as customarily afforded to institutional lenders negotiating with
sophisticated landlords and tenants with respect to mortgage financing, intended
for the protection and benefit of the Lender, and its successors and assigns as
may succeed to the interest of Landlord under this Lease. Tenant hereby agrees
for the benefit of Lender that Tenant will not, (i) without in each case the
prior written consent of Lender, which shall not be unreasonably withheld,
conditioned or delayed, amend or modify this Lease (provided, however, Lender,
in Lender's sole discretion may withhold or condition its consent to any
amendment or modification which would or could (A) alter in any way the amount
or time for payment of any Basic Rent, Additional Rent or other sum payable
hereunder, (B) alter in any way the absolute and unconditional nature of
Tenant's obligations hereunder or materially diminish any such obligations, (C)
result in any termination hereof prior to the end of the Term, or (D) otherwise,
in Lender's reasonable judgment, affect the rights or obligations of Landlord or
Tenant hereunder), or enter into any agreement with Landlord so to do, (ii)
without the prior written consent of Lender which may be withheld in Lender's
sole discretion, cancel or
<PAGE>
surrender or seek to cancel or surrender this Lease or the Term hereof, or enter
into any agreement with Landlord to do so (the parties agreeing that the
foregoing shall not be construed to affect the rights or obligations of Tenant,
Landlord or Lender with respect to any termination permitted under the express
terms hereof in connection with an offer to purchase the Leased Premises
following certain events of condemnation as provided in Section 13 hereof), or
(iii) pay any installment of Basic Rent more than one (1) month in advance of
the due date thereof or otherwise than in the manner provided for in this Lease.
17. Assignment or Subleasing.
a. Notwithstanding anything contained in this Lease to the
contrary, Tenant may not assign hypothecate, pledge or otherwise transfer its
interest in this Lease without the prior written consent of Landlord, which may
be withheld in the sole and absolute discretion of Landlord, unless such
assignment is to a successor-by-merger or an entity controlling, controlled by
or under common control with Tenant. (For purposes of the preceding sentence,
the term "control" and the derivatives thereof means the ownership of more than
fifty percent (50%) of the equity interests in an entity.) Tenant may not
sublease the Demised Premises, in whole or in part, without the prior written
consent of Landlord, which may be withheld in Landlord's sole and absolute
discretion. For purposes of this Section 17 any transfer of 25% or more of the
ownership interest in Tenant, any change in the general partner of Tenant or
sale of all or substantially all of the assets of Tenant shall be deemed an
assignment requiring Landlord's consent
b. Each sublease of the Leased Premises or any part thereof shall
be subject and subordinate to the provisions of this Lease. In no event will any
sublease be construed as a direct lease or other obligation between Landlord and
any subtenant, provided, however, that notwithstanding the foregoing, Landlord
shall be named as a third party beneficiary of all subtenants' respective
obligations under all subleases. No assignment or sublease shall affect or
reduce any of the obligations of Tenant hereunder, and all such obligations
shall continue in full force and effect as obligations of a principal and not as
obligations of a guarantor, as if no assignment or sublease had been made, and
no assignment or sublease shall offset or reduce any of the obligations of the
Guarantor under the Guaranty. Notwithstanding any assignment or subletting
Tenant shall continue to remain primarily liable and responsible for the payment
of the Basic Rent and Additional Rent and the performance of all its other
obligations under this Lease, as and when required to be paid and performed
hereunder. No assignment or sublease shall impose any obligations on Landlord
under this Lease except as otherwise provided in this Lease. Tenant agrees that
in the case of an assignment of the Lease, Tenant shall, within fifteen (15)
days after the execution and delivery of any such assignment, deliver to
Landlord (i) a duplicate original of such assignment in recordable form and (ii)
an agreement executed and acknowledged by the assignee in recordable form (and
in a form acceptable to Landlord and Lender) wherein the assignee shall agree to
assume and agree to observe and perform all of the terms and provisions of this
Lease on the part of the Tenant to be observed and performed from and after the
date of such assignment. In the case of a sublease, Tenant shall, within fifteen
(15) days after the execution and delivery of such sublease, deliver to Landlord
a duplicate original of such sublease.
<PAGE>
c. Consent by Landlord to one or more assignments of this Lease
or to one or more sublettings of all or part of the Leased Premises shall not be
deemed to be a consent to any subsequent assignment or subletting. Any
assignment or subletting without Landlord's consent shall be void and, in
addition, shall constitute a breach of this Lease. Tenant shall reimburse
Landlord as additional rent the greater of: (i) $1,500; and, (ii) Landlord's
reasonable attorney's fees (not to exceed $2,500) and costs incurred in
conjunction with the processing and documentation of any such requested
assignment, subletting, transfer, change of ownership or hypothecation of this
Lease or Tenant's interest in and to the Leased Premises.
d. Upon the occurrence of an Event of Default under this Lease,
Landlord shall have the right to collect and enjoy all rents and other sums of
money payable under any sublease of any of the Leased Premises, and Tenant
hereby irrevocably and unconditionally assigns such rents and money to Landlord,
which assignment may be exercised upon and after (but not before) the occurrence
of an Event of Default.
18. Permitted Contests.
a. After prior written notice to Landlord and Lender, Tenant
shall not be required to (i) pay any Imposition, (ii) comply with any Legal
Requirement, (iii) discharge or remove any lien referred to in Paragraphs 9 or
12, or (iv) take any action with respect to any violation referred to in
Paragraph 11 (b), so long as Tenant shall contest, in good faith and at its sole
cost and expense, the existence, the amount or the validity thereof, the amount
of the damages caused thereby, or the extent of its or Landlord's liability
therefor, by appropriate proceedings which, as a condition to Tenant's right to
contest the same pursuant to this Paragraph 18, shall operate during the
pendency thereof to prevent (A) the collection of, or other realization upon,
the Imposition or lien so contested, (B) the sale, forfeiture or loss of any of
the Leased Premises, any Basic Rent or any Additional Rent to satisfy the same
or to pay any damages, fines or penalties caused by the violation of any such
Legal Requirement, (C) any interference with the use or occupancy of any of the
Leased Premises, (D) any interference with the payment of any Basic Rent or any
Additional Rent or other sums payable hereunder, and (E) the cancellation of any
fire or other insurance policy. If Tenant's consolidated tangible net worth (as
determined on a consolidated basis using generally accepted accounting
principles consistently applied) shall be less than One Hundred Million Dollars
($100,000,000.00) at the time of commencement of or at any time during any such
contest, Tenant shall provide to Landlord and Lender a bond of a surety
acceptable to Landlord and Lender in an amount satisfactory to Landlord and
Lender.
b. In no event shall Tenant pursue any contest with respect to
any Imposition, Legal Requirement, lien, or violation, referred to above in such
manner that exposes Landlord or Lender to the risk of (i) criminal liability,
penalty or sanction, (ii) any civil liability, penalty or sanction, or (iii)
defeasance of its interest the Leased Premises.
c. Tenant agrees that each such contest shall be promptly and
diligently prosecuted to a final conclusion, except that Tenant shall, so long
as the conditions of the first sentence of this Paragraph 18 are at all times
complied with, have the right to attempt to settle or compromise such contest
through negotiations. Tenant shall pay and shall indemnify, defend
<PAGE>
(with counsel reasonably acceptable to Landlord or if Landlord elects it may
defend itself at Tenant's expense) and save Lender and Landlord harmless against
any and all losses, damages, liabilities, judgments, decrees and costs
(including all attorneys' fees and expenses) in connection with any such contest
and shall, promptly after the final determination of such contest, fully pay and
discharge the amounts which shall be levied, assessed, charged or imposed or be
determined to be payable therein or in connection therewith, together with all
penalties, fines, interest, costs and expenses thereof or in connection
therewith, and perform all acts the performance of which shall be ordered or
decreed as a result thereof.
19. Conditional Limitations; Default Provisions.
a. The occurrence of any one or more of the following events
shall constitute an Event of Default under this Lease: (i) a failure by Tenant
to make (regardless of the pendency of any bankruptcy, reorganization,
receivership, insolvency or other proceedings, in law, in equity or before any
administrative tribunal which had or might have the effect of preventing Tenant
from complying with the provisions of this Lease): (x) any payment of Basic Rent
which continues unremedied for a period of five (5) days after written notice in
accordance with Paragraph 21 below ("NONPAYMENT NOTICE") thereof given to Tenant
by Landlord or Lender or Lender's designee, or (y) any payment of Additional
Rent or other sum herein required to be paid by Tenant which continues
unremedied for a period of ten (10) days after a Nonpayment Notice is given to
Tenant by Landlord or Lender or Lender's designee; (ii) Tenant's failure to
deliver any documents or to comply with any of its other obligations pursuant to
Paragraphs 16 or 22, respectively, within the applicable time period set forth
therein (unless such failure is cured within three (3) days after Landlord's
second written request for such documents or compliance), or Tenant's breach of
the provisions of Paragraph 17; (iii) Tenant's failure to comply with the terms
of any Permitted Encumbrance, REA, Legal Requirement or Insurance Requirement
within the times set forth therein, or if no time is specified therein, then
within thirty (30) days after written notice thereof is given by Landlord or
Lender or Lender's designee to Tenant ("NONPERFORMANCE NOTICE") or if such
default is of such a nature that it cannot reasonably be cured within such
period of thirty (30) days, such period shall be extended for such longer time
as is reasonably necessary provided that Tenant has commenced to cure such
default within said period of thirty (30) days and is actively, diligently and
in good faith proceeding with continuity to remedy such default; (iv) failure by
Tenant to perform and observe, or a violation or breach of, any other provision
in this Lease and such default shall continue for a period of thirty (30) days
after a Nonperformance Notice is given by Landlord or Lender or Lender's
designee to Tenant or if such default is of such a nature that it cannot
reasonably be cured within such period of thirty (30) days, such period shall be
extended for such longer time as is reasonably necessary provided that Tenant
has commenced to cure such default within said period of thirty (30) days and is
actively, diligently and in good faith proceeding with continuity to remedy such
default; (v) Tenant or Guarantor shall (A) voluntarily be adjudicated a bankrupt
or insolvent, (B) voluntarily consent to the appointment of a receiver or
trustee for itself or for any of the Leased Premises, (C) voluntarily file a
petition seeking relief under the bankruptcy or other similar laws of the United
States, any state or any jurisdiction, or (D) voluntarily file a general
assignment for the benefit of creditors; (vi) a court shall enter an order,
judgment or decree appointing, with the voluntary consent of Tenant or
Guarantor, a receiver or trustee for Tenant or Guarantor or for the Leased
Premises or approving a petition filed against Tenant or Guarantor which seeks
relief
<PAGE>
under the bankruptcy or other similar laws of the United States or any State,
and such order, judgment or decree shall remain in force, undischarged or
unstayed, ninety (90) days after it is entered; (vii) Tenant or Guarantor
hereunder shall in any insolvency proceedings be liquidated or dissolved or
shall voluntarily commence proceedings towards its liquidation or dissolution;
(viii) the estate or interest of Tenant in the Leased Premises shall be levied
upon or attached in any proceeding and such estate or interest is about to be
sold or transferred or such process shall not be vacated or discharged within
ninety (90) days after such levy or attachment; or (ix) any breach or default of
Guarantor under the Guaranty.
b. If any Event of Default shall have occurred and be continuing,
Landlord, in addition to any other rights or remedies it may have at law or in
equity, may do any one or more of the following:
(i) elect by written notice to Tenant to terminate this
Lease; or
(ii) perform, on behalf and at the expense of Tenant
(entering upon the Leased Premises for such purpose, if necessary), any
obligation of Tenant under this Lease which Tenant has failed to perform
and of which Landlord shall have given Tenant notice, the cost of which
performance or liability by Landlord shall be deemed Additional Rent and
incurred for the account of Tenant and Tenant shall reimburse Landlord
therefor and save Landlord harmless therefrom upon demand provided,
however, that Landlord may cure any such default described in this
subparagraph prior to the expiration of the waiting period established in
Section 19.1, but after notice to Tenant if the curing of such default
prior to the expiration of said waiting period is reasonably necessary to
protect the Leased Premises or Landlord's interest in the Premises, or to
prevent injury or damage to persons or property. If Tenant shall fail to
reimburse Landlord upon demand for any amount paid for the account of
Tenant hereunder, said amount shall be added to and become due as a part
of the next payment of Basic Rent due hereunder. Notwithstanding anything
to the contrary contained herein, in the case of emergency, notice
required pursuant to this Paragraph 19 may be given orally or in any other
reasonably due and sufficient manner having regard to the emergency and
the attending circumstances. If any such notice shall not be given in the
manner described in Paragraph 21 of this Lease entitled "Notices", then as
soon thereafter as practicable, such notice shall be followed up by notice
given in the manner prescribed in said Paragraph. No entry by Landlord, in
accordance with the provisions of this Paragraph, shall be deemed to be an
eviction of Tenant. Landlord's performance of any such covenant shall
neither subject Landlord to liability for any loss, inconvenience or
damage to Tenant nor be construed as a waiver of Tenant's default or of
any other right or remedy of Landlord in respect of such default, or as a
waiver of any covenant, term or condition of this Lease; or
(iii) immediately, using such force as may be reasonably
necessary, re-enter upon the Premises, remove all persons and property
therefrom, and store such property in a public warehouse or elsewhere at
the sole cost and for the account of Tenant, all without service of notice
or resort to legal process, without being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned
<PAGE>
thereby (except for any loss or damage resulting from or caused by the
gross negligence or criminal act of Landlord or its employees, agents or
contractors), and without such re-entry being deemed to terminate this
Lease.
c. In the event Landlord re-enters upon the Premises as provided
in clause (iii) of the foregoing Section 19.b or takes possession of the
Premises as provided herein or pursuant to legal proceedings or pursuant to any
notice provided for by law, then in addition to all other rights and remedies
provided or accruing to Landlord at law or in equity:
(i) Landlord may terminate this Lease and forthwith
repossess the Premises and remove all persons or property therefrom and be
entitled to recover from Tenant, as damages, the sum of money equal to the
total of (i) the reasonable cost of recovering the Premises, (ii) the
accrued and unpaid rentals owed at the time of termination plus interest
thereon from such due date at the maximum rate permitted by law, (iii) the
discounted net present value, at the discount rate of the Federal Reserve
Bank of San Francisco, California, of the balance of the Base Rent for the
remainder of the Term to the extent the same exceeds the then fair market
rental value of the Premises for the balance of the Term (with due
consideration for the costs and delay in reletting), and (iv) any other
sum of money and damages owed by Tenant to Landlord; or
(ii) Landlord may terminate Tenant's right of possession (but
not this Lease) and may repossess the Premises without demand or notice of
any kind to Tenant and without terminating this Lease in which event
Landlord shall, to the extent required under applicable law, relet the
same for the account of Tenant for such rent and upon such terms as shall
be satisfactory to Landlord. For the purpose of such reletting, Landlord
is authorized to make repairs, changes, alterations or additions to the
Premises to make same relettable, and (i) if Landlord shall be unable to
relet the Premises, or (ii) if the same are relet and sufficient sums
shall not be realized from such reletting (after paying: (a) the unpaid
rentals due under the Lease earned, but unpaid at the time of reletting
plus interest thereon at the maximum rate permitted by applicable law, (b)
the cost of recovering possession, including Landlords attorney's fees,
(c) all of the costs and expenses of reletting including advertising
therefor, decorations, repairs, changes, alterations and additions by
Landlord, and (d) the expense of the collection of the Basic Rent and
Additional Rent accruing therefrom) to satisfy the rent and all other
charges provided for in this Lease to be paid by Tenant then Tenant shall
pay to Landlord, as damages, the sum equal to the amount of the Basic
Rent, and Additional Rent and other expenses payable by Tenant for such
period or periods, or if the Premises have been relet, Tenant shall
satisfy and pay any such deficiency upon demand therefore from time to
time and Tenant agrees that Landlord may file suit to recover any sums
falling due under the terms of this Paragraph from time to time upon one
or more occasions without Landlord being obligated to wait until
expiration of the term of this Lease. Such reletting shall not be
construed as an election on the part of Landlord to terminate this Lease
unless a written notice of such termination be given to Tenant by
Landlord. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect to terminate this Lease for such previous
breach. Failure of Landlord to declare any default immediately upon
occurrence thereof or delay in taking any action in
<PAGE>
connection therewith shall not waive such default but Landlord shall have
the right to declare any such default at any time thereafter.
d. In the event that Landlord at any time terminates this Lease
for any default by Tenant, in addition to any other remedies Landlord may have,
Landlord may recover from Tenant (i) all damages Landlord may incur by reason of
such default, including, without limitation, all repossession costs, brokerage
commissions, court costs, attorneys fees, alteration, reletting advertising and
refitting and repair costs, (ii) the accrued and unpaid rentals owed at the time
of' termination plus interest thereon from such due date at the maximum rate
permitted by law, (iii) the discounted net present value, at the discount rate
of the Federal Reserve Bank of San Francisco, California, of the balance of the
Basic Rent, Additional Rent and any other amounts payable by Tenant for the
remainder of the Term to the extent the same exceeds the then fair market rental
value of the Premises for the balance of the Term (with due consideration given
to the costs and delay of reletting), and (iv) any other sum of money and
damages owed by Tenant to Landlord. All such amounts shall be immediately due
and payable from Tenant to Landlord.
e. In the event of a default by Landlord under this Lease,
Tenant's sole and exclusive remedy shall be an action at law for damages
(excluding consequential damages), and Tenant shall not be entitled to terminate
this Lease, abate or "off-set" or deduct from Rent, or exercise any legal or
equitable remedy that would result in a termination of this Lease or abatement
or "off-set" of or deduction from the Rent.
20. Additional Rights of Landlord and Tenant.
a. No right or remedy conferred upon or reserved to Landlord in
this Lease or available to Landlord by law or in equity is intended to be
exclusive of any other right or remedy; and each and every right and remedy
shall be cumulative and in addition to any other right or remedy contained in
this Lease or available at law or in equity. No delay or failure by Landlord or
Tenant to enforce its rights under this Lease shall be construed as a waiver,
modification or relinquishment thereof. In addition to the other remedies
provided in this Lease, Landlord and Tenant shall be entitled, to the extent
permitted by applicable law, to injunctive relief in case of the violation or
attempted or threatened violation of any of the provisions of this Lease, or to
specific performance of any of the provisions of this Lease.
b. Tenant hereby waives and surrenders for itself and all those
claiming under it, including creditors of all kinds, any right and privilege
which it or any of them may have under any present or future law to redeem any
of the Leased Premises or to have a continuance or reinstatement of this Lease
after termination of this Lease or of Tenant's right of occupancy or possession
pursuant to any court order or any provision hereof.
c. Landlord hereby waives any right to distrain or levy upon
Trade Fixtures or any property of Tenant and any Landlord's lien or similar lien
upon Trade Fixtures and any other property of Tenant regardless of whether such
lien is created or otherwise. Landlord agrees at the request of Tenant, to
execute a waiver of any Landlord's or similar lien for the benefit of
<PAGE>
any present or future holder of a security interest in or lessor of any of Trade
Fixtures or any other personal property of Tenant.
d. Landlord acknowledges and agrees in the future to acknowledge
(in a written form reasonably satisfactory to Tenant and Landlord) to such
persons and entities at such times and for such purposes as Tenant may
reasonably request that the Trade Fixtures are Tenant's property and not part of
the Improvements (to the extent the same can be removed without material damage
to the Improvements) or otherwise subject to the terms of this Lease.
e. Each of Tenant and Landlord (herein called "PAYING PARTY")
agrees to pay to the other party (herein called "DEMANDING PARTY") any and all
attorney's fees and other reasonable costs and expenses incurred by the
Demanding Party in connection with any litigation or other action instituted by
the Demanding Party to interpret the provisions of this Lease or to enforce the
obligations of the Paying Party under this Lease, to the extent that the
Demanding Party has prevailed in any such litigation or other action. Any amount
payable by Tenant to Landlord pursuant to this Paragraph 20(e) shall be due and
payable by Tenant to Landlord as Additional Rent. No sum payable by Landlord to
Tenant under this subparagraph will be payable or recoverable from any sums
pledged or assigned (or intended to have been pledged or assigned) by Landlord
to Lender, Tenant's right to recover such sums from Landlord being subordinate
to the rights of Lender, such sums only being recoverable after payment to
Lender in full of the indebtedness secured by the Mortgage.
21. Notices. All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications required or permitted
to be given pursuant to the provisions of this Lease (collectively "Notice" or
"NOTICES") shall be in writing and shall be deemed to have been given for all
purposes (i) three (3) days after having been sent by United States mail, by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the other party at its address as stated below, or (ii) one (1)
business day after having been sent by Federal Express, United Parcel or other
nationally recognized overnight, air courier service.
To the Addresses stated below:
If to Landlord:
Landfair, LLC
c/o Elysee Management Group, Inc.
27520 Hawthorne Boulevard, Suite 235
Rolling Hills, California 90274
Attn: Mr. Wayne Kao
<PAGE>
With a copy to:
Irell & Manella, LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067
Attn: Mark Wiesenthal, Esq.
If to Tenant:
Dave & Buster's, Inc.
2481 Manana Drive
Dallas, Texas 75220
Attn: Legal Department
With a copy to:
Kane, Russell, Coleman & Logan, P.C.
3700 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Attn: Scott A. Dyche
If any Lender shall have advised Tenant by Notice in the manner aforesaid that
it is the holder of a Mortgage and states in said Notice its address for the
receipt of Notices, then simultaneously with the giving of any Notice by Tenant
to Landlord, Tenant shall send a copy of such Notice to Lender in the manner
aforesaid. For the purposes of this Paragraph 21, any party may substitute its
address by giving ten (10) days' notice to the other party in the manner
provided above. Any Notice may be given on behalf of any party by its counsel.
22. Estoppel Certificates. Landlord and Tenant shall at any time and
from time to time, upon not less than ten (10) days' prior written request by
the other, execute, acknowledge and deliver to the other a statement in writing,
certifying (i) that this Lease is unmodified and in full effect (or, if there
have been modifications, that this Lease is in full effect as modified, setting
forth such modifications), (ii) the dates to which Basic Rent and other charges
payable hereunder have been paid, (iii) that to the knowledge of the signer of
such certificate, Landlord is not in material default under the Lease and no
circumstance exists which with the giving of notice or passage of time or both
would constitute such a material default by Landlord, and no Event of Default
(or circumstance which with the giving of notice or passage of time, or both
would constitute an Event of Default) by Tenant exists (except, in each case, as
specified in such certificate), (iv) the remaining Term hereof, (v) with respect
to a certificate signed on behalf of Tenant, that to the knowledge of the signer
of such certificate, there are no proceedings pending or threatened against
Tenant before or by any court or administrative agency which if adversely
decided would materially and adversely affect the financial condition and
operations of Tenant or if any such proceedings are pending or threatened to
said signer's knowledge, specifying and describing the same, (vi) with respect
to a certificate signed on behalf of Tenant, that Tenant has no defense,
set-off, or counterclaim to its obligation to pay rent and other amounts
required
<PAGE>
under the Lease, and (vii) such other matters as may reasonably be requested by
the party requesting the certificate. It is intended that any such statements
may be relied upon by Landlord, Tenant, Lender (including prospective Lenders),
the recipient of such statements or their assignees or by any prospective
purchaser, assignee or subtenant of the Leased Premises.
23. Surrender and Holding Over. Upon the expiration or earlier
termination of this Lease, Tenant shall peaceably leave and surrender the Leased
Premises (except as to any portion thereof with respect to which this Lease has
previously terminated) to Landlord in broom clean condition, and otherwise in
the same condition in which the Leased Premises were originally received from
Landlord on the Commencement Date, except as repaired, rebuilt, restored,
altered, replaced or added to as permitted or required by any provision of this
Lease, and except for ordinary wear and tear. Tenant shall remove from the
Leased Premises on or prior to such expiration or earlier termination the Trade
Fixtures and personal property which is owned by Tenant or third parties other
than Landlord, and Tenant at its expense shall, on or prior to such expiration
or earlier Termination, repair any damage caused by such removal. Trade Fixtures
and personal property not so removed at the end of the Term or within thirty
(30) days after the earlier termination of the Term for any reason whatsoever
shall become the property of Landlord, and Landlord may thereafter cause such
property to be removed from the Leased Premises. The cost of removing and
disposing of such property and repairing any damage to any of the Leased
Premises caused by such removal shall be borne by Tenant. Landlord shall not in
any manner or to any extent be obligated to reimburse Tenant for any property
which becomes the property of Landlord as a result of such expiration or earlier
termination.
a. Any holding over by Tenant of the Leased Premises after the
expiration or earlier termination of the Term of this Lease or any extensions
thereof, with the consent of Landlord, shall operate and be construed as tenancy
from month to month only, at one hundred fifty percent (150%) of the Basic Rent
reserved herein and upon the same terms and conditions as contained in this
Lease (except that Tenant shall have no further right or option to renew or
extend the Term). Notwithstanding the foregoing, any holding over without
Landlord's consent shall entitle Landlord, in addition to collecting Basic Rent
at a rate of one hundred fifty percent (150%) thereof, to exercise all rights
and remedies provided by law or in equity, including the remedies of Paragraph
19(b).
24. No Merger of Title. There shall be no merger of this Lease nor of
the leasehold estate created by this Lease with the fee estate in or ownership
of any of the Leased Premises by reason of the fact that the same person,
corporation, firm or other entity may acquire or hold or own, directly or
indirectly, (a) this Lease or the leasehold estate created by this Lease or an
interest in this Lease or in such leasehold estate and (b) the fee estate or
ownership of any of the Leased Premises or any interest in such fee estate or
ownership. No such merger shall occur unless and until all persons,
corporations, firms and other entities having any interest in (i) this Lease or
the leasehold estate created by this Lease and (ii) the fee estate in or
ownership of the Leased Premises or any part thereof sought to be merged shall
join in a written instrument effecting such merger and shall duly record the
same.
<PAGE>
25. Definition of Landlord.
a. Anything contained herein to the contrary notwithstanding, any
claim based on or in respect of any liability of Landlord under this Lease shall
be enforced only against the Landlord's interest in the Leased Premises and
shall not be enforced against the Landlord individually or personally (except to
the extent that it is necessary to name Landlord as a defendant in an action for
equitable relief).
b. The term "LANDLORD" as used in this Lease so far as covenants
or obligations on the part of Landlord are concerned, shall be limited to mean
and include only the fee owner or owners of the Leased Premises at the time in
question, and in the event of any transfer or transfers of the title of the
Leased Premises, the Landlord herein named (and in case of any subsequent
transfers or conveyances, the then grantor) shall be automatically freed and
relieved from and after the date of such transfer and conveyance of all personal
liability as respects the performance of any covenants or obligations on the
part of Landlord contained in this Lease thereafter to be performed.
26. Environmental Covenants and Indemnity.
a. Except as set forth in the second sentence of this Paragraph
26(a), Tenant hereby represents, warrants, covenants and agrees to and with
Landlord and the Lender that all conditions, operations or activities upon, or
any uses or occupancy of, the Leased Premises have been, are presently and will
be at all times through the term hereof and any Renewal Term(s) in compliance
with all Environmental Laws; that no person at any time has engaged in or
permitted, and no person will engage in or permit the occurrence or existence of
any Hazardous Condition on or about the Leased Premises; and that there does not
now exist nor is there suspected to exist any Hazardous Condition on or about
the Leased Premises. Tenant discloses to Landlord that Tenant does or intends to
use in Tenant's business certain modest amounts of janitorial and maintenance
supplies that may be considered Hazardous Substances, and Landlord acknowledges
Tenant's right to do so, provided, however, that any such storage or use of such
products or substances shall at all times be in compliance with all
Environmental Laws and shall not result in any release of any Hazardous
Substances to the environment or to any location where it may reach the
environment. If any past, present or future condition, occurrence, operation or
activity at or about or off the Leased Premises (i) causes the Leased Premises
to become subject to any Environmental Law, (ii) constitutes or causes the
release or threatened release of any Hazardous Substance from the Leased
Premises into the environment or to any location where it may reach the
environment, (iii) causes the discharge into any water source or system or the
air of any Hazardous Substance which would require a permit under any
Environmental Laws or which would otherwise be a violation of any Environmental
Laws, or (iv) creates a Hazardous Condition on the Leased Premises or elsewhere,
Tenant will promptly notify Landlord and Lender, if any, in writing of such
condition, occurrence, operation or activity, and promptly provide written
notice of any claim made in respect thereof. If Tenant discovers that any
Hazardous Condition exists on the Leased Premises or elsewhere, Tenant shall
promptly notify Landlord and Lender of such condition in writing, and shall
promptly and with all due diligence, take all remedial, removal and other
actions necessary to remediate, remove,
<PAGE>
contain or clean up such Hazardous Condition in compliance with all Legal
Requirements and with provisions of this Paragraph 26.
b. In the event that any Remedial Action with respect to any
Hazardous Conditions is required under any Environmental Laws, by any judicial
order, or by any governmental entity, or in order to comply with the terms,
covenants and conditions of this Lease or of any other agreements affecting the
Leased Premises, Tenant will promptly perform or cause to be performed the
Remedial Action in compliance with such law, regulation, order the terms of this
Lease or other agreement. The Remedial Action will be deemed to be complete when
the presence of any and all Hazardous Conditions have been eliminated or, where
complete elimination is not possible or practicable, when such Remedial Action
has been undertaken that meets the approval of Landlord in its sole discretion.
All Remedial Action (other than payment of money) will be performed by one or
more contractors, selected by Tenant with Landlord's right of approval, not to
be unreasonably withheld, and under the supervision of a consulting
environmental engineer selected by Tenant with Landlord's right of approval, not
to be unreasonably withheld. All costs and expenses of such Remedial Action will
be paid by Tenant, including without limitation the charges of such
contractor(s) and the consulting environmental engineer, and Landlord's and
Lender's reasonable attorneys' and consultants' fees and other costs incurred in
connection with monitoring or review of such Remedial Action. All proposed
Remedial Action work will be submitted to Landlord for its prior approval, not
to be unreasonably withheld. Tenant shall promptly provide Landlord with all
written communication and documentation received or created by Tenant or on its
behalf respecting the Remedial Action, including without limitation, reports,
orders, data, workplans, and agency correspondence. If Tenant fails to timely
commence, or cause to be commenced, or fails to diligently prosecute to
completion, such Remedial Action, Landlord or Lender may, but will not be
required or have any obligation hereunder to, cause such Remedial Action to be
performed, and all costs and expenses thereof, or incurred in connection
therewith, will thereupon constitute Environmental Claims. All such
Environmental Claims will be due and payable by Tenant upon demand therefor by
Landlord or Lender.
c. TENANT FURTHER AGREES TO PROTECT, INDEMNIFY, SAVE HARMLESS AND
DEFEND (USING COUNSEL SATISFACTORY TO LANDLORD, OR LANDLORD MAY ELECT TO DEFEND
ITSELF AT TENANT'S EXPENSE) LANDLORD AND LENDER AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS AGENTS AND EMPLOYEES, IF ANY, FROM
AND AGAINST ALL LIABILITIES, OBLIGATIONS, CLAIMS, DAMAGES, PENALTIES, CAUSES OF
ACTION, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS'
FEES AND EXPENSES) ARISING OUT OF OR RELATED IN ANY WAY TO (X) THE EXISTENCE OF
HAZARDOUS SUBSTANCES OR HAZARDOUS CONDITIONS ON OR ABOUT THE LEASED PREMISES (OR
ELSEWHERE) AND (Y) ANY ACTION OR OMISSION OF TENANT, ITS AGENTS OR EMPLOYEES,
WHICH CONSTITUTES A VIOLATION OR ALLEGED VIOLATION OF ANY ENVIRONMENTAL LAW;
provided, however, that the foregoing indemnification shall not be deemed to
include claims, actions, penalties, costs, liabilities or expenses that arise
from (i) any Hazardous Condition solely to the extent that it is determined by
proper judicial or administrative procedure to have been introduced by Landlord
or Lender to the Leased Premises
<PAGE>
during any period while Landlord or Lender is in possession of the Leased
Premises to the exclusion of Tenant after an Event of Default has occurred or
after expiration of the Term or earlier termination of this Lease, or (ii)
solely as to Tenant's indemnification of Landlord (and with no effect whatsoever
on the indemnification of Lender) as provided above, any Hazardous Condition
solely to the extent that it is determined by proper judicial or administrative
procedure to have been introduced to the Leased Premises by Landlord during the
Term.
d. Notwithstanding any provision of this Lease to the contrary,
if Tenant wishes to contest or cause to be contested, the application,
interpretation or validity of any Environmental Laws or any agreement requiring
any Remedial Action, it may do so only in strict compliance with the provisons
of Paragraph 18 hereof and, in addition, prior to any delay in full compliance
with any Environmental Laws or any Remedial Action requirement on the basis of a
good faith contest of such requirement, Tenant will have taken such steps as may
be necessary to prevent or, with Landlord's prior written consent, mitigate any
continuing occurrence, migration or exacerbation of any existing or suspected
Hazardous Condition giving rise to the contested Remedial Action requirement or
Environmental Law compliance.
e. The foregoing provisions are in addition to and not in
limitation of any other indemnification obligations of Tenant under this Lease
and shall survive the expiration or earlier termination of this Lease.
f. Tenant will not install any underground storage tank at the
Leased Premises without specific, prior written approval from the Landlord.
Tenant will not store combustible or flammable materials on the Leased Premises
in violation of any Legal Requirements.
27. Entry by Landlord. Landlord and its authorized representatives shall
have the right upon reasonable notice (which shall be not less than two (2)
business days except in the case of emergency) to enter the Leased Premises at
all reasonable business hours (and at all other times in the event of an
emergency): (a) for the purpose of inspecting the same or for the purpose of
doing any work under Paragraph 11 (c), and may take all such action thereon as
may be necessary or appropriate for any such purpose (but nothing contained in
this Lease or otherwise shall create or imply any duty upon the part of Landlord
to make any such inspection or do any such work), and (b) for the purpose of
showing the Leased Premises to prospective purchasers and mortgagees and, at any
time within six (6) months prior to the expiration of the Term of this Lease for
the purpose of showing the same to prospective tenants. No such entry shall
constitute an eviction of Tenant but any such entry shall be done by Landlord in
such reasonable manner as to minimize to the extent reasonably achievable any
disruption of Tenant's business operation.
28. No Usury. The intention of the parties being to conform strictly to
the applicable usury laws, whenever any provision herein provides for payment by
Tenant to Landlord of interest at a rate in excess of the legal rate permitted
to be charged, such rate herein provided to be paid shall be deemed reduced to
such legal rate.
<PAGE>
29. Separability.
Each and every covenant and agreement contained in this Lease is, and shall be
construed to be, a separate and independent covenant and agreement, and the
breach of any such covenant or agreement by Landlord shall not discharge or
relieve Tenant from its obligation to perform any of Tenant's covenants and
agreements under this Lease. If any term or provision of this Lease or the
application thereof to any provision of this Lease or the application thereof to
any person or circumstances shall to any extent be invalid and unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and shall be enforced to the extent permitted by law.
30. Miscellaneous.
a. The paragraph headings in this Lease and the Table of Contents
preceding this Lease are used only for convenience in finding the subject
matters and are not part of this Lease or to be used in determining the intent
of the parties or otherwise interpreting this Lease.
b. As used in this Lease the singular shall include the plural as
the context requires and the following words and phrases shall have the
following meanings: (i) "including," shall mean "including but not limited to";
(ii) "provisions" shall mean "provisions, terms, agreements, covenants and/or
conditions"; (iii) "lien" shall mean "lien, charge, encumbrance, title retention
agreement, pledge, security interest, mortgage and/or deed of trust"; and (iv)
"obligation" shall mean "obligation, duty, agreement, liability, covenant or
condition".
c. Any act which Landlord is permitted to perform under this
Lease may be performed at any time and from time to time by Landlord or any
person or entity designated by Landlord. Any act which Tenant is required to
perform under this Lease shall be performed at Tenant's sole cost and expense.
d. This Lease may be modified, amended, discharged or waived only
by an agreement in writing signed by the party against whom enforcement of any
such modification, amendment, discharge or waiver is sought.
e. The covenants of this Lease shall run with the Land and bind
Tenant and all successors and assigns of Tenant, and shall inure to the benefit
of and bind Landlord, its successors and assigns.
f. This Lease may be simultaneously executed in several
counterparts, each of which when so executed and delivered shall constitute an
original, fully enforceable counterpart for all purposes.
g. This Lease shall be governed by and construed according to the
laws of the State.
<PAGE>
h. All Exhibits attached to this Lease are by reference
incorporated into and form a part of this Lease.
i. Wherever the consent or approval of Landlord is required
hereunder, Landlord agrees that it will not unreasonably withhold or delay such
consent or approval, unless otherwise expressly stated herein.
31. Additional Rent. The term "ADDITIONAL RENT" as used herein includes
all amounts, costs, expenses, liabilities and obligations (including but not
limited to Tenant's obligation to pay any Net Awards or Purchase Price
hereunder) which Tenant is required to pay pursuant to the terms of this Lease
other than Basic Rent.
32. Note Default. Simultaneously with the execution of this Lease,
Landlord, as maker, delivered to Tenant, as payee, that certain promissory note
in the original principal amount of $2,517,000 (the "PURCHASE MONEY Note"), as
partial consideration for the sale of the Leased Premises to Landlord. Landlord
expressly agrees that any default by Landlord, as maker, under any of the terms
of the Purchase Money Note shall constitute a default by Landlord under this
Lease.
33. Representations and Warranties. Tenant represents and warrants to
Landlord that as of the Commencement Date the following statements are true and
correct:
a. No adverse geological conditions exist at the Leased Premises,
including, without limitation, any conditions regarding subsidence, subsurface
conditions, water table, underground water reservoirs, limitations regarding the
withdrawal of water and earthquake faults and the resulting damage of past
earthquakes.
b. The Leased Premises or any portion thereof is not affected by
any stream (surface or underground), body of water, flood prone area, flood
plain, floodway or special flood hazard.
c. The Leased Premises and the use, occupancy and operation
thereof complies with all applicable statutes, laws, orders, rules and
regulations promulgated by any applicable governmental authorities and all
mattters of record including, without limitation, (a) Environmental Laws, (b)
laws relating to health, safety, waste disposal, fire and environmental
protection and (c) REAs, CC&Rs, zoning requirements and building codes. Tenant
has received no notice of alleged violation of any such statute, order, rule,
regulation or matter of record nor is there any reasonable basis therefor.
Tenant has not received any communications: (i) from any insurance companies,
governmental agencies or from any other parties regarding any alleged
conditions, defects, or inadequacies with respect to the Leased Premises
(including, without limitation, health hazards or dangers, nuisance or waste,
which, if not corrected, would result in termination of insurance coverage or
increase its cost), (ii) from governmental agencies or any other parties with
respect to any violations of building codes, zoning ordinances, health codes or
other laws, regulations, or orders; or (iii) from any person regarding pending,
threatened or
<PAGE>
contemplated condemnation proceedings with respect to the Leased Premises or
anything that could or would cause the change, redefinition or other
modification of the zoning classification, or of any building or environmental
code requirements applicable to the Leased Premises or any part thereof. No
pending, threatened or contemplated litigation exists regarding the Leased
Premises.
d. No underground storage tanks are located in, on, under or
beneath the Leased Premises and no underground storage tanks have previously
been present at or removed from the Leased Premises.
e. No adverse soil conditions, including but not limited to the
existence of instability, past soil repairs, soil additions or conditions of
soil fill, or susceptibility to landslides, or the insufficiency of any
undershoring exist at the Leased Premises;
f. No plan, study or effort by any governmental authority or
agency or any non-governmental person or entity exists that in any way affects
or would affect the present zoning of the Leased Premises or the use of the
Leased Premises as presently permitted by such zoning designation.
g. All water, sewer, gas, electric, telephone, internet, cable
television and drainage facilities and all other utilities required by law or by
the normal operation of the Leased Premises are installed across public Leased
Premises or valid easements to the Leased Premises lines of the Leased Premises,
are all connected with valid permits, and are adequate to service the Leased
Premises and to permit full compliance with all Legal Requirements, and all
connection fees have been paid.
h. Tenant has obtained all licenses, permits, easements, and
rights-of-way, including proof of dedication, required from all governmental
authorities having jurisdiction over the Leased Premises or from private parties
to permit the present use, occupation and operation of the Leased Premises and
to ensure vehicular and pedestrian ingress and egress to the Leased Premises
from public roads at all access points currently being used.
i. The Improvements have been completed and constructed in a good
and workmanlike manner, and in compliance with all Legal Requirements. The
Improvements are free from defects in design, materials and workmanship. All
mechanical, plumbing, electrical, and HVAC systems are in good working order.
The Leased Premises is free of any mechanics and materialmen's liens or the
right of any person to these types of liens regardless of how those rights
arise.
j. The Leased Premises are merchantable and fit for the Permitted
Use.
k. None of the following exist within the boundaries of the
Leased Premises: (i) sites of historic, archeological or religious significance;
or (ii) endangered species (as defined by federal state or local laws). The
Leased Premises is not within a "Flood Zone."
<PAGE>
l. None of the easements, interests, covenants, conditions,
restrictions or agreements to which the Leased Premises is or may be subject has
interfered with, or has been breached by or as a result of, the current use or
operation of the Leased Premises.
m. With respect to the current use of the Leased Premises, the
number of automobile parking spaces existing on the Leased Premises is
sufficient to comply with all applicable statutes, ordinances, codes and orders
of all public authorities having or claiming jurisdiction thereover.
n. No attachments, execution proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings are pending or, to the best of Tenant's knowledge, threatened
against Tenant or Guarantor nor are any of such proceedings contemplated by
Tenant or Guarantor.
Failure of any of Tenant's foregoing representations or warranties to be
true and correct shall not be a default under this Lease, but Tenant hereby
covenants to Landlord that, within 10 days following written notice from
Landlord to the effect that one or more of the foregoing representations and
warranties is not true and correct, Tenant will take and diligently pursue to
completion such action as is required or desirable to make such representations
or warranties true as of the date such remedial action is complete. The
representations and warranties in this Section 33 shall survive until the later
of: (i) the end of the Initial Term; (ii) the end of Renewal Terms (if any).
Nothing in the Section 33 shall serve to limit any of Tenant's duties or
obligations or any of Landlord's rights or remedies under any other provision of
this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have caused this instrument to be
executed under seal as of the day and year first above written.
(REMAINDER OF THIS PAGE INTENTIONALLY BLANK)
<PAGE>
LANDLORD:
LANDFAIR, LLC,
a California limited liability company
By: /s/ Wayne Kao
--------------------------------------
Name: Wayne Kao
------------------------------------
Title: President
-----------------------------------
TENANT:
DAVE & BUSTER'S I, L.P.,
a Texas limited partnership
By: Dave & Buster's, Inc., a
Missouri corporation, general partner
By: /s/ John S. Davis
---------------------------------
Name: John S. Davis
-------------------------------
Title: Vice President
------------------------------
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
All that tract or parcel of land lying and being in Land Lots 785 and 786 of the
17th District, 2nd Section, Cobb County, Georgia, and being more particularly
described as follows:
Commencing at a 5/8" rebar and cap located at the Southwesterly mitered corner
of the intersection of the Easterly right-of-way line of Northwest Parkway
(having a 70 foot right-of-way) and the Southerly right-of-way line of Dave and
Buster's Drive (having a 70 foot easement right-of-way); Thence along the
Southerly easement right-of-way line of Dave and Buster's Drive, North 44
degrees 33 minutes 01 seconds East, a distance of 21.29 feet to a 5/8" rebar and
cap found; Thence North 89 degrees 51 minutes 14 seconds East, a distance of
149.76 feet to a 5/8" rebar and cap found, said point being the TRUE POINT OF
BEGINNING; Thence leaving said easement right-of-way line, North 00 degrees 02
minutes 52 seconds West, a distance of 149.61 feet to a -1/2" rebar and cap
found; Thence North 59 degrees 26 minutes 19 seconds East, a distance of 538.66
feet to a 5/8" rebar found on the Westerly right-of-way line of Interstate
Highway No. 75, (having a variable right-of-way), Thence along said right-of-way
line, South 24 degrees 24 minutes 14 seconds East, a distance of 504.67 feet to
a 5/8" rebar set; Thence South 24 degrees 21 minutes 33 seconds East, a distance
of 119.68 feet to a 1/2" rebar and cap found; Thence leaving said right-of-way
line, South 71 degrees 10 minutes 56 seconds West, a distance of 50.11 feet to a
1/2" rebar and cap found; Thence South 69 degrees 19 minutes 02 seconds West, a
distance of 49.97 feet to a 1/2" rebar and cap found; Thence South 62 degrees 11
minutes 32 seconds West, a distance of 50.03 feet to a 1/2" rebar and cap found;
Thence South 46 degrees 56 minutes 25 seconds West, a distance of 50.00 feet to
a 1/2" rebar and cap found; Thence South 41 degrees 22 minutes 14 seconds West,
a distance of 49.98 feet to a 1/2" rebar and cap found; Thence South 42 degrees
36 minutes 12 seconds West, a distance of 48.91 feet to 1/2" rebar and cap
found; Thence South 43 degrees 14 minutes 28 seconds West, a distance of 50.98
feet to a 1/2" rebar and cap found; Thence South 53 Degrees 00 minutes 01
seconds West, a distance of 13.01 feet to a 5/8" rebar and cap found; Thence
North 33 degrees 06 minutes 26 seconds West, a distance of 417.96 feet to a 5/8"
rebar set; Thence South 89 degrees 52 minutes 47 seconds West, a distance of
206.86 feet to a -1/2" open top pipe found; Thence North 00 degrees 02 minutes
52 seconds West, a distance of 5.20 feet to a 5/8" rebar and cap found, said
point being the TRUE POINT OF BEGINNING.
Said tract of land contains 6.331 Acres.
<PAGE>
EXHIBIT B
Primary Initial Term: Twenty (20) years
Number of Consecutive Renewal Terms: Four (4) (subject to Paragraph 5c)
Duration of each Renewal Term: Five (5) years
1. Basic Rent from the Commencement Date through the first anniversary
of the Commencement Date shall be $1,012,200.00, payable in monthly installments
of $84,333.34 each.
2. Base Rent shall increase annually on each anniversary of the
Commencement Date by 1.35%, through and including any Renewal Terms.
<PAGE>
EXHIBIT C
Casualty and Condemnation Purchase Price
$6,500,000
<PAGE>
EXHIBIT D
Guaranty
<PAGE>
EXHIBIT E
Equipment
N/A
<PAGE>
EXHIBIT F
Trade Fixtures
N/A