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Exhibit 10.9
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MASTER LEASE AGREEMENT
Dated as of February 28, 1999
Between
AMERICOLD CORPORATION,
as Landlord,
and
AMERICOLD LOGISTICS, LLC,
as Tenant
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TABLE OF CONTENTS
Page
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ARTICLE I
1.1 Leased Property ........................................................1
1.2 Release of Unimproved Parcels ..........................................2
1.3 Uneconomic Property; Tenant Option to Purchase Leased Properties .......3
1.4 Initial Term ...........................................................5
1.5 Renewal Terms ..........................................................5
1.6 Limitation of Term as a Result of Ground Lease Terms ...................6
1.7 Condition of the Leased Property .......................................7
ARTICLE II
2.1 Definitions ............................................................7
ARTICLE III
3.1 Rent ..................................................................23
3.2 Net Lease .............................................................28
ARTICLE IV
4.1 No Termination, Abatement, etc ........................................28
4.2 Abatement Procedures ..................................................29
ARTICLE V
OWNERSHIP OF THE LEASED PROPERTY
5.1 Ownership of the Leased Property ......................................30
5.2 Tenant's Personal Property ............................................30
ARTICLE VI
AFFIRMATIVE COVENANTS
6.1 Tenant Covenants ......................................................31
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ARTICLE VII
NEGATIVE COVENANTS
7.1 Tenant's Negative Covenants ...........................................38
ARTICLE VIII
ALTERATIONS; LEASING
8.1 Alterations ...........................................................39
8.2 Subletting and Assignment; Warehouse Agreements .......................44
8.2.1 Generally .....................................................44
8.2.2 Certain Sublettings and Assignments ...........................44
8.2.3 Landlord's Right to Collect from Assignees and Subtenants .....44
8.2.4 No Release ....................................................45
8.2.5 Required Assignment and Subletting Provisions .................45
8.2.6 Reimbursement of Landlord's Costs .............................46
8.2.7 Warehouse Agreements ..........................................46
8.2.8 Certain Leases Senior .........................................46
8.3 REIT Related Limitations on Subleasing and Warehouse Agreement ........46
8.4 Collateral Assignment of Subleases and Warehouse Agreements to
Landlord ..............................................................47
8.5 Leasehold Mortgages ...................................................47
8.5.1 Landlord's Estate .............................................47
8.5.2 Certain Leasehold Mortgage Requirements .......................47
8.5.3 Leasehold Mortgagee Provisions ................................48
8.5.4 Leasehold Mortgagee's Rights upon Termination of this Lease ...50
8.5.5 Notice of Arbitration .........................................52
ARTICLE IX
9.1 Maintenance and Repair ................................................52
9.2 Encroachments, Restrictions, etc. .....................................54
ARTICLE X
CASUALTY AND CONDEMNATION
10.1 Insurance .............................................................55
10.2 Casualty; Application of Proceeds .....................................61
10.3 Condemnation ..........................................................64
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ARTICLE XI
ACCOUNTS AND RESERVES
11.1 Cash Management Procedures ............................................65
ARTICLE XII
12.1 Events of Default .....................................................66
12.2 Certain Remedies ......................................................67
12.3 Damages ...............................................................67
12.4 Waiver ................................................................69
12.5 Application of Funds ..................................................69
ARTICLE XIII
13.1 Landlord's Right to Cure Tenant's Default .............................70
ARTICLE XIV
14.1 Holding Over ..........................................................70
ARTICLE XV
SUBORDINATION
15.1 Subordination and Nondisturbance ......................................71
15.2 Attornment ............................................................71
15.3 Notice of Default to Landlord's Lender ................................72
15.4 Modifications to Secure Financing .....................................72
15.5 Delivery of Notices to Landlord's Lender ..............................72
15.6 Right of Landlord's Lender to Enforce Lease ...........................72
15.7 Exercise of Landlord's Discretion .....................................73
ARTICLE XVI
16.1 Indemnification .......................................................73
ARTICLE XVII
17.1 No Waiver .............................................................74
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ARTICLE XVIII
18.1 Remedies Cumulative ...................................................75
ARTICLE XIX
19.1 Acceptance of Surrender ...............................................75
ARTICLE XX
20.1 No Merger of Title ....................................................75
ARTICLE XXI
21.1 Conveyance by Landlord ................................................75
ARTICLE XXII
22.1 Quiet Enjoyment .......................................................76
ARTICLE XXIII
23.1 Notices ...............................................................76
ARTICLE XXIV
24.1 Appraisers ............................................................77
ARTICLE XXV
25.1 General REIT Provisions ...............................................78
25.1.1 REIT Requirements .............................................78
25.1.2 Satisfaction of REIT Requirements .............................79
ARTICLE XXVI
ENVIRONMENTAL INDEMNITY
26.1 Environmental Indemnity Provisions ....................................79
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ARTICLE XXVII
MISCELLANEOUS
27.1 Survival of Claims ....................................................80
27.2 Severability ..........................................................80
27.3 Maximum Permissible Rate ..............................................80
27.4 Headings ..............................................................80
27.5 Exculpation ...........................................................80
27.6 Transfer of Licenses ..................................................81
27.7 Exhibition of Leased Property .........................................81
27.8 Entire Agreement ......................................................81
27.9 Governing Law .........................................................81
27.10 No Waiver .............................................................81
27.11 Successors and Assigns ................................................81
27.12 Modifications in Writing ..............................................81
27.13 No Waiver .............................................................81
27.14 Claims Against Landlord ...............................................82
ARTICLE XXVIII
28.1 Memorandum of Lease ...................................................82
ARTICLE XXIX
29.1 Landlord's Option to Purchase Tenant's Personal Property ..............82
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LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A-1 - Legal Description of the Land
EXHIBIT 1.5(b) - List of Ground Leases and Expiration Dates
EXHIBIT 2.1(a) - Release Amounts
EXHIBIT 3.1(a) - Minimum Rent Allocations
EXHIBIT 3.1(b) - Calculation of Percentage Rent
EXHIBIT 8.2.8 - Certain Superior Leases
SCHEDULE 9.1(b) - Capital Expenditure Responsibilities
EXHIBIT 15.1 - Form of Non-Disturbance Agreement
SCHEDULE 15.4 - Arbitration Procedures
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MASTER LEASE AGREEMENT (this "Lease"), dated as of the 28th day of
February, 1999, between AMERICOLD CORPORATION, an Oregon corporation
("Landlord"), having offices c/o Vornado Realty Trust, Park ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Chief Financial Officer, and AMERICOLD
LOGISTICS, LLC, a Delaware limited liability company ("Tenant"), having its
principal offices at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Executive Officer.
RECITALS
WHEREAS, Landlord has agreed to let to Tenant, and Tenant has agreed to
lease from Landlord, certain parcels of real property and improvements each for
use and operation as dry and cold warehousing facilities and related uses,
defined hereinbelow as the "Leased Property" (all capitalized terms used but not
elsewhere defined herein shall have the meaning provided therefor in Article II
hereof).
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
ARTICLE I
1.1 Leased Property. Upon and subject to the terms and conditions
hereinafter set forth, Landlord leases to Tenant and Tenant leases from Landlord
all of Landlord's right, title and interest in and to all of the following
(collectively, the "Leased Property"):
(i) those certain tracts, pieces and parcels of land, as more
particularly described in Exhibit A attached hereto and made a part hereof
(collectively, the "Land");
(ii) all buildings, structures, Fixtures and other improvements of
every kind, including alleyways and connecting tunnels, sidewalks, utility
pipes, conduits and lines (on-site and off-site), parking areas and
roadways appurtenant to such buildings and structures presently or
hereafter situated upon the Land (collectively, the "Leased
Improvements");
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(iii) all easements, rights and appurtenances relating to the Land
and the Leased Improvements; and
(iv) all permanently affixed equipment, machinery, fixtures, and
other items of real and/or personal property, including all components
thereof, now and hereafter located in, on or used in connection with, and
permanently affixed to or incorporated into the Leased Improvements,
including all furnaces, boilers, heaters, electrical equipment, heating,
plumbing, lighting, ventilating, refrigerating, incineration, air- and
water-pollution-control, waste-disposal, air-cooling and air-conditioning
systems and apparatus, sprinkler systems and fire- and theft-protection
equipment, and built-in oxygen and vacuum systems, all of which, to the
greatest extent permitted by law, are hereby deemed by the parties hereto
to constitute real estate, together with all replacements, modifications,
alterations and additions thereto, but excluding all items included within
Tenant's Personal Property (collectively the "Fixtures").
1.2 Release of Unimproved Parcels. Notwithstanding anything herein to the
contrary, Landlord shall have the right from time to time to terminate this
Lease, with respect to any Unimproved Parcels located at the Leased Property as
well as grant in connection therewith in respect of the Leased Property
remaining subject to this Lease reasonable easements, restrictions, covenants,
reservations and rights of way for, among other things, traffic circulation,
ingress, egress, parking, access, water and sewer lines, telephone and telegraph
lines, electric lines or other utilities or for other similar purposes at no
cost to Landlord and with no adjustment in Rent; provided, in each such case,
(x) such Unimproved Parcel shall be used either for the purpose of erecting,
maintaining and operating cold or dry storage warehouses or other structures and
improvements not inconsistent with the use of the related Leased Property, and
(y) such termination will not materially adversely affect either the value of
the remaining portion of the related Leased Property (as distinguished from the
value of the entire Leased Property) or the net operating income of the
remaining portion of the Leased Property (taking into account, to the extent
applicable, any potential loss of revenue resulting if the transfer and
development of the Unimproved Parcel by Landlord were not to occur), as
supported by the Officer's Certificate of Landlord described below. As used
herein, "Unimproved Parcel" shall mean, with respect to a Leased Property, one
or more land areas comprising such Leased Property on which no improvements
generating Receipts are situate, and not materially required for the generation
of Receipts. In connection with any termination permitted pursuant to this
Section, Tenant agrees to execute and deliver any instrument reasonably
necessary or appropriate to facilitate said action, subject to Tenant's receipt
of:
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1. a plot plan identifying the location of the applicable Unimproved
Parcel;
2. a metes and bounds description of the portion of such Unimproved
Parcel; and
3. an amendment to the legal description attached as an exhibit to this
Lease implementing the proposed release, including a metes and
bounds description of the portion of the Land at the relevant Leased
Property that will continue to be subject to this Lease after the
proposed termination.
1.3 Uneconomic Property; Tenant Option to Purchase Leased Properties.
(a) Subject to the terms of this Section, if, at any time during the Term,
in the good faith judgment of Tenant (as evidenced by an Officer's Certificate
on behalf of Tenant which describes the basis for such judgment), (x) any Leased
Property becomes or imminently will become uneconomic or unsuitable for its
Primary Intended Use, and will remain uneconomic or unsuitable for such use for
the foreseeable future, and Tenant undertakes to cease its operation of such
Leased Property for its Primary Intended Use as soon as is reasonably
practicable or (y) a Default hereunder relating to a particular Leased Property
has occurred and is continuing and Tenant, notwithstanding the exercise of
reasonable diligence, is unable to cure such Event of Default other than by
terminating this Lease with respect to the Leased Property in question (in each
case, any such Leased Property, an "Uneconomic Property"), then, unless
otherwise prohibited by the terms of any Landlord's Debt, Tenant shall have the
right, so long as (i) no Event of Default shall have occurred and be continuing
(other than one arising from the Default described in clause (y) above), and
(ii) any other requirements relating to the substitution of such Uneconomic
Property under any applicable Landlord's Loan Document have been satisfied, to
purchase such Uneconomic Property described in clause (x) above in accordance
with the terms of this Section. Tenant shall signify its election to exercise
such purchase option by giving notice of the election to Landlord, accompanied
by the Officer's Certificate described in the immediately preceding sentence.
Tenant's restoration of the operations at any Uneconomic Property as a result of
events which are not within the control of Tenant and were not foreseeable by
Tenant at the time such Officer's Certificate was delivered shall not be deemed
to evidence Tenant's bad faith in making the determination which is the subject
of such Officer's Certificate.
(b) In the event Tenant elects to exercise its right to purchase a Leased
Property pursuant to this Section, Tenant shall, as described in clause (x)
above, either:
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(i) offer to Landlord a property owned by Tenant of like kind and
quality to the Leased Property proposed to be purchased by Tenant (each a
"New Leased Property"), which New Leased Property, if accepted by Landlord
(in Landlord's reasonable discretion), would serve as consideration for
Tenant's purchase of the Leased Property in question (each a "New Property
Purchase"); or
(ii) offer to pay Landlord the Termination Amount for the Uneconomic
Property in question (each a "Cash Purchase"). Landlord shall have sixty
days from the date of such offer to either accept or reject Tenant's offer
to make a Cash Purchase. Upon the closing of the Cash Purchase or
Landlord's rejection thereof, (x) this Lease shall terminate in respect of
the Uneconomic Property in question (except for such terms as are
expressly intended to survive the termination of this Lease), (y) the
Minimum Rent shall be reduced by the portion thereof allocable thereto, as
determined by reference to Exhibit 3.1(a) and (z) the percentages set
forth on Exhibit 3.1(a) shall be adjusted to reflect the portion of
Minimum Rent allocated to each Leased Property remaining subject to the
terms of this Lease (except to the extent otherwise indicated on said
Exhibit 3.1(a)).
(c) As a condition to any New Property Purchase, Tenant shall deliver to
Landlord (i) a deed evidencing the transfer of the fee interest in the New
Leased Property to Landlord, (ii) a Title Policy with respect to the New Leased
Property, (iii) a survey of the New Leased Property, (iv) environmental reports
relating to the New Leased Property, (iv) an amendment to this Lease (x)
terminating this Lease with respect to the Uneconomic Property and (y) causing
the New Leased Property to become a Leased Property hereunder and (v) any and
all other documents, reports, legal opinions or other items reasonably requested
by Landlord. Upon any such purchase, the Uneconomic Property removed will no
longer be a Leased Property hereunder and this Lease, as such relates to the
Uneconomic Property in question, will be terminated. Upon any New Property
Purchase, the applicable New Leased Property shall be a Leased Property
hereunder and the percentage of Minimum Rent (as set forth on Exhibit 3.1(a)
hereto) assigned to the applicable Uneconomic Property shall be assigned to such
New Leased Property.
(d) As a condition to any Cash Purchase, Tenant shall pay to Landlord (in
immediately available federal funds) the applicable Termination Amount and shall
deliver to Landlord (i) an amendment to this Lease terminating this Lease with
respect to the Uneconomic Property (ii) any and all other documents, reports,
legal opinions or other items reasonably requested by Landlord. Upon any such
purchase, the Uneconomic Property removed will no longer be a Leased Property
hereunder and this Lease, as such
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relates to the Uneconomic Property in question, will be terminated in accordance
with the last sentence of Section 1.3(b)(ii) herein.
(e) Tenant hereby covenants and agrees that any purchase of an Uneconomic
Property pursuant to this Section shall not in any way impair the obligations of
Tenant to make payments of Rent hereunder.
(f) Tenant hereby agrees to pay all expenses in connection with any
actions taken pursuant to this Section, including all out-of-pocket expenses and
costs incurred by Landlord or Landlord's Lender (or any of their respective
affiliates), regardless whether a substitution is ultimately effected, including
fees and costs of: audits; travel; accounting services; environmental and
engineering reports; credit reports; appraisals; property evaluations;
preparation, negotiation, execution and delivery of any amendments of or
documents supplemental to this Lease or Landlord's Loan Documents; attorneys'
fees and expenses of Landlord and Landlord's Lender; transfer, transfer gains,
intangibles, deed and mortgage recording taxes; title insurance; survey; and
document recordings and filings.
1.4 Initial Term. The initial term of this Lease (the "Initial Term")
shall commence on the Commencement Date and shall expire on February 28, 2014,
unless otherwise terminated as provided herein, subject to the terms of Section
1.6.
1.5 Renewal Terms. (a) Subject to Section 1.6, provided (i) no Event of
Default shall have occurred and be continuing hereunder or under the Other
Leases and (ii) the tenant under each of the Other Leases shall have exercised
its respective renewal option under the applicable Other Lease to the extent the
same is available, Tenant shall have the right to renew this Lease (as to all,
but not less than all, the Leased Property subject to this Lease at such time)
for two (2) successive five (5) year terms ("Extended Terms") upon giving
written notice to Landlord of each such renewal at least eighteen (18) months
prior to the termination of the then current Term. During each such Extended
Term, all of the terms and conditions of this Lease shall continue in full force
and effect, except that the Minimum Rent for and during each Extended Term shall
be the greater of (i) the then current fair market rental ("Fair Market
Rental"), which unless otherwise mutually agreed to by Landlord and Tenant shall
be determined by the appraisal procedure set forth in Article XXIV and (ii) the
Minimum Rent for the Lease Year immediately preceding the Extended Term plus
five percent (5%). Tenant's failure to exercise its renewal option as to the
first Extended Term shall result in the loss of its renewal option as to the
second Extended Term.
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(b) Subject to Section 1.6, Landlord shall exercise renewal rights (if
any) that are available under each Ground Lease so as to provide Tenant, to the
greatest extent possible, with an Extended Term described in Section 1.5(a),
provided that (without waiving Landlord's rights under Section 1.6) Landlord
shall not be required to exercise any renewal option in respect of any Ground
Lease unless prior to such time Tenant shall have duly exercised its renewal
option hereunder.
(c) If Landlord or any Affiliate of Landlord shall purchase any fee or
other interest in a Leased Property that is superior to the interest of
Landlord, such as the ground lessor's interest in a Ground Leased Property, then
the estate of Landlord and such superior interest shall not merge and, without
limiting the foregoing, Tenant shall continue to be liable hereunder to pay any
ground rent and perform any other obligations of the lessee under such Ground
Lease. Further, in the event Landlord or any Affiliate of Landlord acquires a
ground lessor's interest in a Ground Leased Property and the term of the related
Ground Lease shall have expired, then Landlord or such Affiliate shall have the
right to enter into a new Ground Lease and receive from Tenant reimbursement (or
payment) of ground rent in an amount equal to the same ground rent as was
payable under the expired Ground Lease, increased by 5 percent, and increased
again by 5 percent every fifth anniversary of the commencement of the new Ground
Lease.
1.6 Limitation of Term as a Result of Ground Lease Terms. With respect to
any Ground Leased Property the Ground Lease for which has an expiration date
(taking into account any renewal options thereunder as of the date hereof or
hereafter exercised) prior to the expiration of Term (taking into account any
exercised renewal options hereunder), (i) this Lease shall expire with respect
to such Ground Leased Property on the business day immediately preceding such
Ground Lease expiration date (taking into account the terms of the following
clause (ii)), and (ii) if a Ground Lease renewal option is not exercised as of
the date hereof and Landlord has not (in its sole discretion) determined to
exercise such renewal option, then Tenant may require Landlord to exercise such
renewal term on the following terms and conditions: (1) no default on the part
of Tenant hereunder or Event of Default shall have occurred and be continuing,
(2) Tenant shall notify Landlord, on a date reasonably prior to the date on
which such renewal option must be exercised, that Tenant wishes Landlord to
exercise such renewal option, and (3) such notice shall constitute Tenant's
agreement to pay to Landlord (as and when the same become due and payable) all
base and additional rent and other sums due and payable under the affected
Ground Lease during such renewal term (including the portion thereof extending
beyond the Term), provided that Landlord shall credit against amounts due under
this clause (3), in respect of the portion of the Ground Lease renewal term,
extending beyond the Term any rent and similar payments Landlord receives from
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any third party in consideration for the lease of the premises in respect of
such portion of the Ground Lease renewal term.
1.7 Condition of the Leased Property. Tenant acknowledges (a) receipt and
delivery of possession of the Leased Property, (b) that Tenant has inspected and
otherwise has knowledge of the condition of the Leased Property prior to the
execution and delivery of this Lease and (c) that Tenant has found the same to
be in good order and repair and satisfactory for its purposes hereunder. Tenant
is leasing the Leased Property "AS IS" in its present condition. Tenant waives
any claim or action against Landlord in respect of the condition of the Leased
Property. LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN
RESPECT OF THE LEASED PROPERTY OR ANY PART THEREOF, AS TO ACCESS TO THE LEASED
PROPERTY OR AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR
USE OR PURPOSE OR OTHERWISE, OR AS TO QUALITY OF THE MATERIAL OR WORKMANSHIP
THEREIN, OR AS TO THE ABSENCE OF ANY DEFECT, LATENT OR PATENT, IT BEING AGREED
THAT ALL SUCH RISKS ARE TO BE BORNE BY TENANT.
ARTICLE II
2.1 Definitions. For all purposes of this Lease, except as otherwise
expressly provided or unless the context otherwise requires, (i) the terms
defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular, (ii) all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with
generally accepted accounting principles as at the time applicable, (iii) all
references in this Lease to designated "Articles," "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of
this Lease, (iv) the words "herein," hereof" and "hereunder" and other words of
similar import refer to this Lease as a whole and not to any particular Article,
Section or other subdivision, (v) the term "including" and words of similar
import shall be deemed to be followed by the phrase "without limitation," (vi)
the term "attorneys' fees" and "attorneys' fees and expenses" and words of
similar import shall be deemed preceded with the word "reasonable," and (vii)
the phrase "Leased Property" shall be deemed to mean a specific Leased Property
or all of the Leased Property, as the context may require, and shall be deemed
to be followed by the phrase "or any portion thereof".
Additional Charges: As defined in Article III.
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Affiliate: A Person or Persons directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with the
Person or Persons in question. The term "control", as used in the immediately
preceding sentence, shall mean, with respect to a Person that is a corporation,
the right to exercise, directly or indirectly, more than 50% of the voting
rights attributable to the shares of the controlled corporation and, with
respect to a Person that is not a corporation, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the controlled Person.
Aggregate Threshold Amount: As defined in Article VIII.
Alteration: As defined in Section 8.1.
Annual Budget: Tenant's annual budget setting forth, in reasonable detail,
Tenant's good faith estimates of the anticipated results of operations of the
Leased Property (taken as a whole), including Receipts, all Operating Expenses,
management fees and capital expenditures, approved by Landlord in accordance
with Section 6.1(h)(4) hereof.
Business Day: Any day other than a Saturday, Sunday or any other day on
which national banks in New York, New York are not open for business.
Cash: Coin or currency of the United States of America or immediately
available federal funds, including such funds delivered by wire transfer.
Cash Management Procedures: As defined in Article XI.
Casualty: As defined in Section 10.2.
Code: The Internal Revenue Code of 1986, as amended.
Commencement Date: The date of this Lease.
Condemnation: As defined in Section 10.3.
CPI Increase: When used to qualify a fixed dollar amount set forth herein
at the date in question, such fixed dollar amount, as increased by the
percentage by which the Consumer Price Index for All Items, Urban Consumers
published by the United States Department of Labor, applicable to the United
States (all items) (base year 1982-84 =
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100) (the "Consumer Price Index"), or any successor index thereof as such
successor index may be appropriately adjusted to establish substantial
equivalence with the Consumer Price Index, shall have increased over such
Consumer Price Index (or successor, equivalent or comparable index, as
applicable) for the month in 1998 in which the Commencement Date occurs. If the
Consumer Price Index is converted to a different standard reference base or
otherwise revised, then whenever the determination of a CPI Increase figure is
called for herein, the Consumer Price Index shall be converted in accordance
with the conversion factors published by the United States Department of Labor,
Bureau of Labor Statistics, or, if said Bureau shall not publish the same, as
the same may be published by ▇▇▇▇▇▇▇▇-▇▇▇▇, Inc. or any other nationally
recognized publisher of similar statistical information selected by Landlord. If
the Consumer Price Index ceases to be published and there is no successor
thereto, such other index as Landlord shall reasonably select shall be
substituted for the Consumer Price Index.
Credit Facility: Shall mean a clean, irrevocable, unconditional
transferable letter of credit, payable on sight draft only, which shall not be
secured by any Leased Property, for the benefit of Landlord (or, at Landlord's
option, Landlord's Lender) and entitling such beneficiary to draw thereon in New
York, New York or in such other city as Landlord's office may be located (or, at
Landlord's option, the corporate trust office of Landlord's Lender) may be
located at the time of the issuance of such letter of credit, issued by a
domestic bank or the U.S. agency or branch of a foreign bank the long-term
unsecured debt rating of which at the time such letter of credit is delivered
and throughout the term of such letter of credit is not less than the then
Required Rating, or, if the Required Rating is "AAA" and there are no domestic
banks or U.S. agencies or branches of a foreign bank having such long-term
unsecured debt rating then issuing letters of credit, then such letter of credit
may be issued by a domestic bank the long-term unsecured debt rating of which is
not lower than "AA" by the Rating Agencies. Such Credit Facility shall provide
that (i) it will automatically renew unless the issuer of such Credit Facility
delivers written notice to the beneficiary (and to Landlord, if Landlord is not
the beneficiary) at least thirty (30) days prior to its expiration that such
Credit Facility will not be renewed and (ii) if not so renewed, the beneficiary
shall be entitled to draw upon the full amount thereof. Without in any way
limiting the generality of the foregoing, if any Credit Facility is not renewed
or replaced with another Credit Facility prior to the date that is thirty (30)
days prior to its expiration, the beneficiary shall be entitled to draw upon the
full amount thereof.
Crescent Realty: Crescent Real Estate Equities Limited Partnership, a
Delaware limited partnership.
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Crescent Trust: Crescent Real Estate Equities Company, a Texas real estate
investment trust.
Default: The occurrence of any event hereunder which, but for the giving
of notice or passage of time, or both, would be an Event of Default hereunder.
Depositary: Landlord or, at Landlord's election, Landlord's Lender or a
depositary selected by Landlord, it being agreed that different Persons may
serve as Depositary at any one time and from time to time.
Eligible Collateral: U.S. Government Securities, Debt Securities, a Credit
Facility, Cash and Cash Equivalents, and a guaranty of payment and performance
(in form and substance reasonably satisfactory to Landlord) by Vornado Trust or
Vornado Realty (provided Vornado Trust or Vornado Realty, as applicable, has a
long-term unsecured debt rating at least equal to the Investment Grade rating)
and/or Crescent Trust or Crescent Realty (provided Crescent Trust or Crescent
Realty, as applicable, has a long-term unsecured debt rating at least equal to
the Investment Grade rating), or any combination of the foregoing.
Environmental Laws: Any and all of the following as applicable to Tenant
and/or the Leased Property: present and future federal, state and local laws
(whether under common law, statute, ordinance, rule, regulation or otherwise),
court or administrative orders or decrees, requirements of permits issued with
respect thereto, and other requirements of governmental authorities relating to
any Hazardous Substances or Hazardous Substances Activity (including the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. ss.ss.9601, et seq.) as heretofore or hereafter amended from time to
time).
Event of Default: As defined in Article XII.
Extended Term: As defined in Article I.
Fair Market Rental: With respect to a particular Leased Property, the
rental that a willing tenant not compelled to rent would pay a willing landlord
not compelled to let for such Leased Property, excluding all capital
improvements (as distinguished from necessary repairs and replacements) paid for
by Tenant, determined in accordance with the appraisal procedures set forth in
Article XXIV or in such other manner as shall be mutually acceptable to Landlord
and Tenant.
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Fair Market Value: With respect to a particular Leased Property, the price
that a willing buyer not compelled to buy would pay a willing seller not
compelled to sell for such Leased Property, excluding all capital improvements
(as distinguished from necessary repairs and replacements) paid for by Tenant,
and (a) assuming the same is unencumbered by this Lease, (b) determined in
accordance with the appraisal procedures set forth in Article XXIV or in such
other manner as shall be mutually acceptable to Landlord and Tenant, and (c) not
taking into account any reduction in value resulting from any indebtedness to
which such Leased Property is subject except as expressly provided hereinbelow.
In determining such Fair Market Value, the positive or negative effect on the
value of the Leased Property attributable to the interest rate, amortization
schedule, maturity date, prepayment penalty and other terms and conditions of
any encumbrance which is not removed at or prior to the closing of the
transaction as to which such Fair Market Value determination is being made shall
be taken into account.
Fiscal Year: Each twelve (12) month period from January 1 to December 31.
Fixtures: As defined in Article I.
Governmental Authority: Any court, board, agency, commission, office or
authority of any nature whatsoever of or for any governmental ▇▇▇▇ (▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ or otherwise), whether now or hereafter
in existence.
Ground Lease: Each of the ground leases identified on Exhibit 1.5(b)
hereto.
Ground Leased Property: Collectively, the Leased Property identified on
Exhibit 1.5(b) hereto.
Hazardous Substances: Any of the following: (i) any chemical, compound,
material, mixture or substance that is now or hereafter defined or listed in, or
otherwise classified pursuant to, any Environmental Laws as a "hazardous
substance", "hazardous material", "hazardous waste", "extremely hazardous
waste", "infectious waste", "toxic substance", "toxic pollutant" or any other
formulation intended to define, list or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, or "EP toxicity" and (ii) any
petroleum, natural gas, natural gas liquid, liquefied natural gas, synthetic gas
usable for fuel (or mixtures of natural gas and such synthetic gas), ash
produced by a resource recovery facility utilizing a municipal solid waste
stream, and drilling fluids, produced waters, and other wastes associated with
the exploration, development or reduction of crude oil, natural gas, or
geothermal resources. Without limiting the foregoing, Hazardous
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Substances shall also include asbestos and asbestos-containing materials and
polychlorinated biphenyls.
Initial Term: As defined in Article I.
Institutional Lender: Any one or more of the following: a bank, investment
bank, trust company, broker-dealer, insurance company, separate account, pension
fund, retirement plan, governmental agency, real estate investment trust,
investment company, investment company adviser or pension fund adviser, or any
Affiliate of any of the foregoing, in each case, whether acting for its own
account or as a trustee, fiduciary or agent of others.
Insurance Premiums: As defined in Section 10.1(d).
Interest Rate: A rate equal to 90-day U.S. Treasuries plus 2.00%.
Insurance Requirements: All terms of any insurance policy required
hereunder covering or applicable to the Leased Property, all requirements of the
issuer of any such policy, and all orders, rules, regulations and other
requirements of the National Board of Fire Underwriters (or any other body
exercising similar functions) applicable to or affecting the Leased Property or
any use of the Leased Property.
Land: As defined in Article I with respect to the Leased Property.
Landlord: Americold Corporation, an Oregon corporation, and its successors
and assigns.
Landlord Liens: Liens on or against the Leased Property or this Lease or
any payment of Rent (i) in favor of any taxing authority by reason of any tax
excluded from the definition of "Taxes" hereunder owed by Landlord or (ii)
securing Landlord's Debt.
Landlord's Debt: The outstanding principal amount borrowed by Landlord
from time to time, together with all interest accrued and unpaid thereon, and
all other sums due in connection therewith, including any yield-maintenance
payments or other prepayment premium or penalty, the payment of which may be
secured by Landlord's interest in the Leased Property and the Rent and other
amounts payable hereunder.
Landlord's Lender: The holder of Landlord's Debt from time to time,
provided that if Landlord's Debt shall be held legally or beneficially by more
than one Person, then
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Landlord's Lender shall be deemed to refer to only one such Person as selected
by Landlord in a notice to Tenant or, failing such selection, as selected by
Tenant.
Landlord's Loan Documents: The instrument(s) and agreement(s) evidencing,
establishing and securing Landlord's Debt, including (to the extent applicable)
a promissory note, loan agreement, a mortgage, deed of trust or deed to secure
debt and assignment of leases and rents.
Lease Year: Any Fiscal Year or portion thereof during the Term, commencing
with the 1999 Fiscal Year.
Leased Improvements; Leased Property: Each as defined in Article I.
Leasehold Mortgage: Any mortgage, deed of trust or other security interest
encumbering Tenant's leasehold estate hereunder, or direct or indirect ownership
interests in Tenant, which has been granted to secure repayment of debt of
Tenant or the holders of such ownership interests.
Leasehold Mortgagee: The holder of a Leasehold Mortgage from time to time.
Legal Requirements: All federal, state, county, municipal and other
governmental statutes, laws, rules, orders, regulations, ordinances, judgments,
decrees and injunctions of Governmental Authorities affecting Landlord, Tenant
or the Leased Property, or the construction, use, alteration or operation
thereof, whether now or hereafter enacted and in force, and all permits,
licenses and authorizations and regulations relating thereto, and all covenants,
agreements, restrictions and encumbrances contained in any instruments, either
of record or known to Tenant, at any time in force affecting the Leased Property
(other than any subleases, this Lease, and service contracts and other similar
agreements now in effect or hereafter entered into in the ordinary course of
Tenant's business), including any which may (i) require repairs, modifications
or alterations in or to the Leased Property, or (ii) in any way limit the use
and enjoyment thereof.
Litigation Costs: All costs reasonably incurred by Landlord in connection
with the enforcement of any provision of this Lease, including attorneys' fees
and expenses, court costs and reasonable consultants' fees and expenses.
Lien: Any mortgage, deed of trust, lien, pledge, hypothecation,
assignment, security interest, or any other encumbrance, charge or transfer of,
on or affecting the Leased Property or Tenant, or any interest therein,
including any conditional sale or other
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title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, the filing of any financing statement,
notice or other instrument and mechanics', materialmen's and other similar liens
and encumbrances.
Major Subtenant: A tenant under a Sublease for all or substantially all of
a Leased Property.
Material Agreement: Operating Agreements and agreements (i) requiring
payment by Tenant of more than $2,000,000 per annum and not cancellable without
a penalty of $500,000 or more, or (ii) pursuant to which Tenant is entitled to
receive more than $2,000,000 per year, relating, in each case, to the ownership,
development, use, operation, leasing, maintenance or repair of the Leased
Property, provided "Material Agreements" shall not include agreements pursuant
to which either party thereto may discontinue the provision of, or request for,
services, or the delivery of goods to Tenant for storage, without payment of any
penalty or without notice to the other party (regardless whether the agreement
is formally terminated) .
Material Alteration: Any Alteration to be performed by or on behalf of
Tenant at a Leased Property (other than an Alteration the cost of which a
Subtenant is obligated to reimburse to Tenant and which Tenant reasonably
believes will be so reimbursed), the cost of which as reasonably estimated by a
Qualified Architect or Engineer exceeds the Threshold Amount.
Material Casualty: As defined in Section 10.2.
Material Condemnation: As defined in Section 10.2.
Minimum Rent: As defined in Article III.
Net Operating Income: Operating Income less Operating Expenses.
New Leased Property: As defined in Article I.
Notice: As defined in Article XXIII (regardless whether the same is
capitalized herein).
Officer's Certificate: A certificate made by an individual authorized to
act on behalf of Tenant and, to the extent applicable, any constituent Person
with respect to Tenant. Without limiting the foregoing, if the individual
signing the certificate is doing
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so on behalf of a corporation, then such individual shall hold the office of
President, Vice President or Chief Financial Officer (or the equivalent) with
respect to such corporation.
Operating Agreements: Reciprocal easement and/or operating agreements;
covenants, conditions and restrictions; and similar agreements affecting any
Leased Property and binding upon and/or benefitting Landlord or Tenant and other
third parties. Without limiting the foregoing, "Operating Agreements" shall not
include any Warehouse Agreements.
Operating Expenses: For any specified period, on an accrual basis, all
expenses paid (or due and payable, except to the extent that the same constitute
Trade Payables that are not more than 60 days outstanding) by Tenant during such
period in connection with the operation of the Leased Property, as well as
bookkeeping, accounting, insurance costs, wages and other costs and expenses
incurred for the Leased Property and legal expenses incurred in connection with
the operation of the Leased Property, determined, in each case, consistently
with GAAP. "Operating Expenses" shall not include (1) depreciation or
amortization or other noncash items (other than expenses that are due and
payable but not yet paid), (2) the principal of and interest on any indebtedness
(except for any payments required under any Permitted Equipment Leases), (3)
income taxes or other taxes in the nature of income taxes, (4) any expenses
(including legal, accounting and other professional fees, expenses and
disbursements) incurred in connection with and allocable to any indebtedness
(except for any of the same in connection with any Permitted Equipment Leases),
(5) the cost of any capital expenditures (except for any payments required under
any Permitted Equipment Leases), (6) distributions to the shareholders, members
or partners in Tenant or any asset management fees or similar compensation
payable to any Affiliate of Tenant, and (7) any item of expense which otherwise
would be considered within Operating Expenses but is paid directly by any
Subtenant. Expenses that are accrued as Operating Expenses during any period
shall not be included in Operating Expenses when paid during any subsequent
period.
Operating Income: For any specified period, on an accrual basis, all
income received or accrued by Tenant during such period in connection with the
operation of the Leased Property, determined consistent with GAAP, including the
following, but without duplication:
(i) all rents, rent equivalents, moneys payable as damages pursuant
to a Lease or in lieu of rent or rent equivalents, royalties (including
all oil and gas or other mineral royalties and bonuses), income,
receivables, receipts, revenues, deposits (including security, utility and
other deposits), accounts, cash, issues,
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profits, charges for services rendered, and other consideration of
whatever form or nature received by or paid to or for the account of or
benefit of Tenant or its agents or employees from any and all sources
arising from or attributable to the Leased Property, including any
obligations now existing or hereafter arising or created out of the lease,
sublease, license, concession or other grant of the right of the use and
occupancy of property or rendering of services by Tenant;
(ii) charges received by Tenant for electricity, oil, gas, water,
steam, heat, ventilation, air conditioning and any other energy,
telecommunications, telephone, utility or similar items, including
overtime usage, HVAC equipment charges, sprinkler charges, escalation
charges, license fees, maintenance fees, charges for improvements, Taxes
and other amounts payable to Tenant, under any Lease or other agreement
relating to the Leased Property pursuant to which any portion of the
Leased Property, utilities, facilities, equipment, parking facilities or
other services are furnished by Tenant, but excluding any security
deposits received;
(iii) condemnation awards to the extent that such awards are
compensation for lost rent;
(iv) business interruption and loss of "rental value" insurance
proceeds;
(v) income from cash holdings and interest from notes in lieu of
rent; and
(vi) all other amounts received by Tenant during such period in
respect of items which in accordance with GAAP would be included in
Tenant's annual financial statements for such period or any other period
as operating income of the Leased Property and which are reasonably
expected to recur during the next two (2) years following the date on
which Net Cash Flow or Net Operating Income is being calculated.
Notwithstanding the foregoing clauses (i) through (vi), Operating Income shall
not include (A) any condemnation or insurance proceeds (other than of the types
described in clauses (i), (ii) and (iii) above), (B) any proceeds resulting from
the sale, exchange, transfer, financing or refinancing of all or any part of the
Tenant's interest in the Leased Property or any interest therein (other than of
the types described in clause (iii) above), (C) any repayments received from
Subtenants of principal loaned or advanced to Subtenants by Tenant, or (D) any
type of income that would otherwise be considered
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Operating Income pursuant to the provisions above but is paid directly by any
Subtenant to a Person other than Tenant or its agent.
Other Charges: All ground rents, maintenance charges, impositions other
than Taxes, and any other charges, including vault charges and license fees for
the use of vaults, chutes and similar areas adjoining a Leased Property, now or
hereafter levied or assessed or imposed against any Leased Property or any part
thereof (subject to the same exclusion set forth in the proviso in the
definition of "Taxes").
Other Leases: Collectively, (i) that certain Master Lease Agreement, dated
as of April 22, 1998, between URS Real Estate, L.P., as Landlord, and URS
Logistic, Inc., as amended, (ii) that certain Master Lease Agreement, dated as
of April 22, 1998, between Americold Real Estate, L.P., as landlord, and
Americold Corporation, as tenant, as amended, and (iii) such other Master Lease
Agreements as may be entered into from time to time between Landlord or its
Affiliates and Tenant or its Affiliates.
Overdue Rate: On any date, a rate equal to the Interest Rate plus 2%, but
in no event greater than the maximum rate then permitted under applicable law.
Percentage Rent: As set forth in Exhibit 3.1(b) attached hereto.
Permitted Encumbrances: Collectively, (a) all Liens disclosed in the Title
Policy, (b) Liens, if any, for Taxes or Other Charges not yet payable or
delinquent or which are being diligently contested in good faith in accordance
with this Lease, (c) Liens in respect of property or assets imposed by law which
were incurred in the ordinary course of business, such as carriers',
warehousemen's, landlord's, mechanics', materialmen's, repairmen's and other
similar Liens arising in the ordinary course of business, and Liens for workers'
compensation, unemployment insurance and similar programs, in each case arising
in the ordinary course of business which are being diligently contested in good
faith in accordance with the terms hereof, (d) Subleases, (e) easements,
rights-of-way, restrictions, minor defects or irregularities in title and other
similar charges or encumbrances (including any of such matters incurred or
entered into by Tenant in the ordinary course of business) which in each case do
not diminish in any material respect the value of the affected Leased Property
or affect in any material respect the validity, enforceability or priority of
this Lease or the Liens created by Landlord's Loan Documents, and (f) such other
title and survey exceptions as Landlord has approved or may approve in writing.
In addition, "Permitted Encumbrances" shall include any Landlord Liens.
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Permitted Equipment Leases means capital and/or operating lease
obligations in respect of equipment used at the Leased Property with an
aggregate annual rent obligation reasonable and customary for facilities such as
the Leased Properties, as mutually agreed upon by Landlord and Tenant.
Permitted Investments: The following, subject to qualifications
hereinafter set forth:
1. Obligations of, or obligations guaranteed as to principal and
interest by, the U.S. government or any agency or instrumentality
thereof, when such obligations are backed by the full faith and
credit of the U.S. These obligations include, but are not limited
to:
o U.S. Treasury obligations All direct or fully guaranteed
obligations
o Farmers Home Administration Certificates of beneficial
ownership
o General Services Administration Participation
certificates
o U.S. Maritime Administration Guaranteed Title XI
financing
o Small Business Administration Guaranteed participation
certificates Guaranteed pool certificates
o U.S. Department of Housing and Urban Development Local
authority bonds
o Washington Metropolitan Area Transit Authority
Guaranteed transit bonds
2. Federal Housing Administration debentures.
3. Obligations of government-sponsored agencies that are not backed by
the full faith and credit of the U.S., where the obligation is
limited to those instruments that have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change.
These obligations are limited to:
o Federal Home Loan Mortgage Corp. (FHLMC) Debt
obligations
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o Farm Credit System (formerly: Federal land Banks,
Federal Intermediate Credit Banks, and Banks for
Cooperatives) Consolidated systemwide bonds and notes
o Federal Home Loan Banks (FHL Banks) Consolidated debt
obligations
o Federal National Mortgage Association (FNMA) Debt
obligations
o Student Loan Marketing Association (SLMA) Debt
obligations
o Financing Corp. (FICO) Debt obligations
o Resolution Funding Corp. (REFCORP) Debt obligations.
4. Federal funds, unsecured certificates of deposit, time deposits,
banker's acceptances, and repurchase agreements having maturities of
not more than 365 days of any bank, the short-term debt obligations
of which are rated "A-1+" (or the equivalent) by the Rating Agencies
or secured by U.S. Treasury obligations (as described in Paragraph 1
above).
5. Deposits that are fully insured by the Federal Deposit Insurance
Corp. (FDIC).
6. Debt obligations maturing in 365 days or less that are rated AAA or
higher (or the equivalent) by the Rating Agencies.
7. Commercial paper rated "A-1+" (or the equivalent) by the Rating
Agencies and maturing in 365 days or less.
8. Investments in certain short-term debt of issuers rated "A-1" (or
the equivalent) by the Rating Agencies may be permitted with certain
restrictions. The total amount of debt from "A-1" issuers must be
limited to the investment of an amount equal to Monthly Debt Service
Payment Amount. The total amount of "A-1" investments should not
represent more than 20% of the rated issue's outstanding principal
amount and each investment should not mature beyond 30 days.
Investment in "A-1" (or the equivalent) rated securities are not
eligible for reserve accounts, cash collateral accounts, or other
forms of credit enhancement. Short-term debt for purposes of this
definition includes: commercial paper, federal funds, repurchase
agreements, unsecured certificates of deposit, time deposits, and
banker's acceptances.
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9. Investment in money market funds rated "AAAm" or "AAm-G" (or the
equivalent) by the Rating Agencies.
10. Such other investments as shall be approved in writing by Landlord.
Notwithstanding the foregoing, "Permitted Investments": (i) shall exclude any
security with the Standard & Poor's "r" symbol (or any other Rating Agency's
corresponding symbol) attached to the rating (indicating high volatility or
dramatic fluctuations in their expected returns because of market risk), as well
as any mortgage-backed securities and any security of the type commonly known as
"strips"; (ii) shall not have maturities in excess of one year; (iii) as to the
investments described in (1), (3), (4), (5), (6), (7) and (8): the obligations
shall be limited to those instruments that have a predetermined fixed dollar of
principal due at maturity that cannot vary or change; interest may either be
fixed or variable; and any variable interest should be tied to a single interest
rate index plus a single fixed spread (if any), and move proportionately with
that index; and (iv) shall exclude any investment where the right to receive
principal and interest derived from the underlying investment provide a yield to
maturity in excess of 120 percent of the yield to maturity at par of such
underlying investment. No investment shall be made which requires a payment
above par for an obligation if the obligation may be prepaid at the option of
the issuer thereof prior to its maturity. All investments shall mature or be
redeemable upon the option of the holder thereof on or prior to the earlier of
(x) three (3) months from the date of their purchase or (y) the Business Day
preceding the day before the date such amounts are required to be applied
hereunder.
Person: Any individual, sole proprietorship, corporation, general
partnership, limited partnership, limited liability company or partnership,
joint venture, association, joint stock company, bank, trust, estate,
unincorporated organization, any federal, state, county or municipal government
(or any agency or political subdivision thereof), endowment fund or any other
form of entity.
Policies: As defined in Section 10.1.
Primary Intended Use: As defined in Section 6.1.
Qualified Architect or Engineer: Any experienced architect, engineer or
construction manager licensed or registered in the jurisdiction where the
applicable Leased Property is located, if required by the laws of such
jurisdiction.
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Rating Agencies: Any one or more of the following designated by Landlord:
Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc., ▇▇▇▇▇'▇
Investors Service, Inc., Duff & ▇▇▇▇▇▇ Credit Rating Co. and Fitch IBCA, Inc. or
any other nationally-recognized statistical rating agency selected by Landlord.
Receipts: The items described in Operating Income, determined, however, on
a cash basis.
REIT: As defined in Article XXV.
REIT Requirements: As defined in Article XXV.
Release Amount: With respect to each Leased Property, shall refer to the
applicable "Release Amount" as set forth on Exhibit 2.1(a) hereto. Tenant hereby
agrees that in connection with any new Landlord's Debt, the Release Amount in
respect of any Leased Property shall be the greater of the amount set forth on
Exhibit 2.1(a) and the amount required to be paid by Landlord to Lender to
obtain the release of the lien affecting such Leased Property.
Rent: Collectively, (i) the Minimum Rent, (ii) Percentage Rent and (iii)
Additional Charges.
Rental Period. As defined in Article III.
Rent Payment Date. As defined in Article III.
Restoration: As defined in Section 10.2.
State: The State or Commonwealth in which the particular Leased Property
in located.
Sublease. Any lease, sublease, license agreement or occupancy agreement
entered into by Tenant affecting all or any portion of the Leased Property,
provided that Warehouse Agreements shall not be included within the definition
of Subleases.
Subtenant: A subtenant, licensee, occupant or other party to any Sublease.
Superior Interests: As defined in Article XV.
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Superior Party: As defined in Article XV.
Taxes: All real estate and personal property taxes, assessments, fees,
taxes on rents or rentals, water rates or sewer rents and other governmental
charges now or hereafter levied or assessed or imposed against Landlord, Tenant
or the Leased Property or rents therefrom or which may become Liens, provided
that Taxes shall not include any income, franchise, estate, inheritance or gift
taxes, or any other tax imposed on or measured by the net income of Landlord,
except to the extent that the same is in direct substitution for a tax that
would otherwise be included within the definition of "Taxes" hereunder.
Tenant's Personal Property: All motor vehicles, machinery, equipment,
furniture, furnishings, movable walls or partitions, computers or trade fixtures
or all other personal property, and consumable inventory and supplies, now owned
or hereafter acquired by Tenant and located on the applicable Leased Property or
used or useful in Tenant's business on such Leased Property, including all
modifications, replacements, alterations and additions to such personal property
installed at the expense of Tenant, except items, if any, included within the
definition of Fixtures.
Term: Collectively, the Fixed Term and any Extended Terms, to the extent
properly exercised by Tenant pursuant to the provisions of Article I, unless
earlier terminated pursuant to the provisions of this Lease.
Termination Amount: With respect to a specified Leased Property, the
greater of the Fair Market Value thereof and the Release Amount therefor.
Threshold Amount: Two million dollars ($2,000,000).
Title Policy: The ALTA (or equivalent) title insurance policy acquired by
Landlord most recently prior to the date hereof (i) naming Landlord as the
insured and (ii) insuring Landlord's ownership of the Leased Property subject to
the exceptions and exclusions set forth therein.
Unavoidable Delays: Delays due to strikes, lockouts, inability to procure
materials, power failure, acts of God, governmental restrictions, enemy action,
civil commotion, fire, unavoidable casualty or other causes beyond the control
of the party responsible for performing an obligation hereunder, provided that
lack of funds shall not be deemed a cause beyond the control of either party
hereto unless such lack of funds is
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caused by the failure of the other party hereto to perform any obligations of
such party under this Lease.
Uneconomic Property. As defined in Article I.
Unimproved Parcel. As defined in Article I.
Unsuitable for Its Primary Intended Use: A state or condition at a Leased
Property such that by reason of damage or destruction, or a partial taking by
condemnation, in the good faith judgment of Tenant, reasonably exercised, the
Leased Property cannot by operated on a commercially practicable basis for its
Primary Intended Use.
Vornado Realty: Vornado Realty L.P., a Delaware limited partnership.
Vornado Trust: Vornado Realty Trust, a Maryland real estate investment
trust.
Warehouse Agreements: Warehousing agreements, logistics and services
agreements, distribution agreements, handling agreements and other similar
agreements in connection with the Primary Intended Use to the extent (but only
to the extent) the same are for goods stored or services rendered at any Leased
Property, in such forms and on such terms as are customarily entered into by
Tenant, together with any amendments and modifications to such agreements.
ARTICLE III
3.1 Rent. Tenant will pay to Landlord, in lawful money of the United
States of America which shall be legal tender for the payment of public and
private debts, at Landlord's address set forth above or at such other place or
to such other person, firms or corporations as Landlord may designate in writing
from time to time, (i) Minimum Rent (as defined below), and (ii) Percentage
Rent. In addition, Tenant will pay to Landlord or the Person otherwise entitled
thereto all Additional Charges during the Term on or before the same are
delinquent.
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(a) Minimum Rent:
For the period commencing on the Commencement Date through February
28, 2014, the sum of SEVEN MILLION FIVE HUNDRED FIFTY SEVEN THOUSAND
AND 00/100 DOLLARS ($7,757,000.00) per annum.
Minimum Rent shall be prorated among each Leased Property pursuant to the
percentages set forth next to each Leased Property on Exhibit 3.1(a) attached
hereto. Minimum Rent for each Fiscal Year shall be payable:
(x) for the period from the Commencement Date through (and including) the
Rent Payment Date (as defined herein) occurring in September, 2000, in
arrears, and,
(y) for the period from (but excluding) the Rent Payment Date occurring in
September, 2000, through the balance of the Term, in advance,
in either case in twelve (12) equal installments on the eleventh (11th) day of
each calendar month of the Initial Term and each Extended Term (the "Rent
Payment Date"); provided that if such 11th day is not a Business Day, then the
Rent Payment Date shall be the next preceding Business Day; provided further
that the advance Minimum Rent installment otherwise payable on the Rent Payment
Date in September, 2000, shall instead be deferred and paid in six (6) equal
installments on each Rent Payment Date occurring in September, 2000 through
February, 2001. Minimum Rent shall be paid for the period of the eleventh (11th)
of each month (or, if applicable, the Commencement Date) through the tenth
(10th) of the next month (or, if applicable, the expiration of the Term) (each,
a "Rental Period"), provided that the first and last payments of Minimum Rent
shall be prorated as to any partial Rental Period, based on the number of days
within the Term during such Rental Period and the number of days in such Rental
Period. Tenant hereby agrees to make reasonable changes with respect to the
definition of "Rental Period" as may be requested in connection with any
Landlord's Debt. The first installment payment of Minimum Rent shall be payable
on March 11, 1999, for the Rental Period beginning with the Commencement Date
and ending March 10, 1999.
Notwithstanding the foregoing, for the period commencing with the
date hereof and expiring on the third (3rd) anniversary of the date hereof, to
the extent that Available Cash is less than the amount of Fixed Rent and
Percentage Rent, as certified by Tenant (together with reasonable documentation
thereof) and agreed to by Landlord, the Fixed Rent and Percentage Rent shall
accrue, and the payment thereof (together with interest at the Interest Rate)
shall be deferred to, the earlier of (A) the third (3rd) anniversary of the date
hereof and (B) such date as Available Cash shall be available, to the extent of
such Available Cash (and Available Cash shall be applied first to interest, then
to the accrued Fixed Rent and then to the accrued Percentage Rent), provided
that the maximum amount of Fixed Rent that may be deferred under this paragraph
shall be fifteen percent (15%) of the stated Fixed Rent obligation. As used
herein, Available Cash
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shall be Receipts less Operating Expenses. In no event, however, shall the rent
deferral permitted hereunder be such that Landlord will have insufficient cash
flow to service Landlord's Debt.
(b) Percentage Rent:
(i) Generally; Payment in Installments. In addition to the Minimum
Rent payable with respect to the Leased Property, Tenant shall pay
Percentage Rent for each Lease Year. Percentage Rent shall be payable
quarterly in arrears in four (4) installments, on the Rent Payment Date
occurring in April, July, August and January of each Lease Year, in
respect of the quarter ending in the prior month, commencing in 2000. Each
quarterly installment shall be based on, and accompanied by, an Officer's
Certificate setting forth Tenant's current estimated Receipts for the
Leased Property (on a Leased Property-by-Leased Property basis) on a
cumulative basis for the period commencing with the Lease Year through the
end of the quarter in question, and shall take into account previous
installments paid in respect of such Lease Year.
(ii) Presentation of Certificate and Audit. Not later than the 25th
day following the end of each Lease Year, Tenant shall deliver to Landlord
an Officer's Certificate setting forth (x) the Receipts for the Leased
Property (on a Leased Property-by-Leased Property basis) and (y) the
computation made by Tenant in determining Percentage Rent, in each case
(a) for such Lease Year and (b) for each individual calendar quarter
during such Lease Year, together with an audit of such Receipts conducted
by a "Big Six" firm of independent certified public accountants proposed
by Tenant and approved by Landlord (which approval shall not be
unreasonably withheld or delayed). Tenant shall utilize, or cause to be
utilized, an accounting system for the Leased Property in accordance with
its usual and customary practices and in accordance with GAAP, which will
accurately record Receipts for the Leased Property. Tenant shall retain
such records, for at least three (3) years after the expiration of each
Lease Year.
(iii) Confirmation of Percentage Rent. Landlord, at its own expense,
except as provided herein below, shall have the right, exercisable by
Notice to Tenant within two (2) years after receipt of the applicable
Officer's Certificate referred to in clause (ii) above, by its accountants
or representatives to audit the information set forth in such Officer's
Certificate and, in connection with such audits, to examine Tenant's books
and records with respect thereto (including supporting data and sales and
excise tax returns).
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(iv) Adjustments of Percentage Rent. If the certificate or audit
described in Section 3.1(b)(ii), or any audit described in Section
3.1(b)(iii), discloses a deficiency in the payment of Percentage Rent and
any differences between the parties are resolved (which, absent the
parties' agreement shall be determined pursuant to arbitration in
accordance with Schedule 15.4), Tenant shall forthwith pay to Landlord the
amount of the deficiency, as finally agreed or determined, together with
interest at the Interest Rate, from the date such payment should have been
made to the date of payment thereof. If such deficiency, as determined or
agreed upon or compromised as aforesaid, is more than four percent (4%) of
the Receipts reported by Tenant for such Lease Year and, as a result,
Landlord did not receive at least ninety-five percent (95%) of the
Percentage Rent payable with respect to such Lease Year, Tenant shall pay
the reasonable cost of such audit and examination. If the certificate or
audit described in Section 3.1(b)(ii), or any audit described in Section
3.1(b)(iii), discloses a overpayment of Percentage Rent and any
differences between the parties are resolved (which, absent the parties'
agreement shall be determined pursuant to arbitration in accordance with
Schedule 15.4), then (provided no Event of Default has occurred and is
continuing) Landlord shall grant Tenant a credit equal to the amount of
such overpayment against the Rent next coming due in the amount of such
difference, as finally agreed or determined, together with interest at the
Interest Rate accruing from the date of payment by Tenant until the date
such credit is applied. If such credit cannot be made because the Term has
expired prior to application in full thereof, then (provided no Event of
Default has occurred and is continuing and provided Tenant has paid all
amounts required under this Lease), Landlord shall repay the unapplied
balance of such credit to Tenant.
(v) Maximum Adjustments of Percentage Rent. Notwithstanding the
foregoing, (A) in no event shall Tenant be permitted under Section
3.1(b)(iv) a credit or refund in respect of Percentage Rent in excess of
15 percent of the aggregate installments of Percentage Rent paid in
respect of any Lease Year pursuant to Section 3.1(b)(i) and (B) in no
event shall Tenant be permitted under Section 3.1(b)(i) a credit or refund
in respect of Percentage Rent in excess of 15 percent of the aggregate
installments of Percentage Rent paid in respect of immediately preceding
calendar quarter pursuant to Section 3.1(b)(i).
(vi) Confidentiality. Any information obtained by Landlord with
respect to Receipts, Operating Income and Operating Expenses pursuant to
the provisions of this Lease shall be treated as confidential, except that
such information may be (1) disclosed to the extent that it otherwise
becomes public
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information, (2) disclosed to the extent that Landlord is advised by
counsel that Landlord is required to disclose such information by
subpoena, court order, securities laws and regulations, any other laws or
regulations or stock-exchange requirements, (3) used in any litigation
between the parties (subject to such confidentiality safeguards as Tenant
may request and the courts may impose), (4) disclosed to Landlord's direct
and indirect lenders and investors (and prospective direct and indirect
lenders and investors), and (5) disclosed to the extent permitted in
Landlord's Loan Documents relating to any Landlord's Debt, provided that,
with respect to the disclosures permitted under clause (4), Landlord shall
obtain the agreement of the Persons to whom disclosure is made to maintain
such information as confidential in accordance with terms of this
Subsection (iv) and in no event shall public or Rule 144A holders of
Landlord's Debt be permitted to receive such information on an individual
Leased Property basis.
(vii) Survival. The obligations of Tenant and Landlord contained in
this Section 3.1 shall survive the expiration or earlier termination of
this Lease.
(c) Additional Charges. In addition to the Minimum Rent and Percentage
Rent payable with respect to the Leased Property, Tenant shall pay and discharge
as and when due and payable the following (collectively, "Additional Charges"):
(1) Taxes and Other Charges. Tenant shall pay all Taxes and Other
Charges as set forth in Section 6.1(b) herein.
(2) Utility Charges. Tenant shall pay all charges for electricity,
power, gas, oil, water, sanitary and storm sewer, refuse collection and
other utilities used or consumed in connection with the applicable Leased
Property during the Term.
(3) Insurance Premiums. Tenant shall pay, as Additional Charges, all
premiums for the insurance coverage required to be maintained pursuant to
Article VIII hereof.
(4) Other Charges. Tenant shall pay, as Additional Charges, all
other amounts, liabilities and obligations that Tenant assumes or agrees
to pay under this Lease, including all of its indemnification obligations
set forth herein.
(5) Late Payment of Rent. If any installment of Minimum Rent,
Percentage Rent or Additional Charges (but only as to those Additional
Charges which are payable directly to Landlord, if any) shall not be paid
within five (5)
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Business Days after its due date, Tenant will pay to Landlord on demand,
as Additional Charges, a late charge (to the extent permitted by law)
computed at the Overdue Rate (or at the maximum rate permitted by law,
whichever is the lesser) on the amount of such installment, from the due
date of such installment to the date of payment thereof.
To the extent that Tenant timely pays any Additional Charges to Landlord
pursuant to any requirement of this Lease, Tenant shall be relieved of its
obligation to pay such Additional Charges to the entity to which they would
otherwise be due. If Landlord's Loan Documents shall so require, or if any
Additional Charges shall not be paid to a third party payee within five (5)
Business Days after its due date, Landlord may at any time thereafter, at
Landlord's option, require Tenant to deposit into an escrow account under the
sole dominion and control of Landlord (or the applicable Landlord's Lender), on
the first day of each month (or such other day(s) as Landlord shall reasonably
specify), an amount which, together with similar escrow deposits on succeeding
deposit dates, is sufficient to ensure that such escrow account shall contain an
amount sufficient to make such payment on its next due date, in which event
Landlord shall make all future payments for such expense from the escrow
account. In the event of any failure by Tenant to pay any Additional Charges
when due, Tenant shall promptly pay and discharge, as Additional Charges, every
fine, penalty, interest and cost that may be added for non-payment or late
payment of such items. Landlord shall have all legal, equitable and contractual
rights, powers and remedies provided either in this Lease or by statute or
otherwise in the case of non-payment of the Rent. Landlord shall have the right
to have such escrows held with a Depositary.
3.2 Net Lease. The Minimum Rent and Percentage Rent, as well as such
Additional Charges as are due and payable to Landlord, shall be paid absolutely
net to Landlord, so that this Lease shall throughout the Term yield to Landlord
the full amount of the installments of Minimum Rent and Percentage Rent, as well
as any payments of Additional Charges payable to Landlord, subject to any other
provisions of this Lease which expressly provide for adjustment or abatement of
Rent or other charges.
ARTICLE IV
4.1 No Termination, Abatement, etc. Except as otherwise specifically
provided herein, Tenant, to the extent permitted by law, shall remain bound by
this Lease in accordance with its terms and shall neither take any action
without the consent of Landlord to modify, surrender or terminate the same, nor
seek nor be entitled to any
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abatement, deduction, deferment or reduction of Rent, or set-off against the
Rent, nor shall the respective obligations of Landlord and Tenant be otherwise
affected by reason of (a) any damage to, or destruction of, any Leased Property
from whatever cause or any taking of the Leased Property, (b) the interruption
or discontinuance of any service or utility servicing the applicable Leased
Property, (c) the lawful or unlawful prohibition of, or restriction upon,
Tenant's use of the Leased Property, the interference with such use by any
person, corporation, partnership or other entity, or by reason of eviction by
paramount title, (d) any claim which Tenant has or might have against Landlord
or by reason of any default or breach of any warranty by Landlord under this
Lease or any other agreement between Landlord and Tenant, or to which Landlord
and Tenant are parties, (e) any bankruptcy, insolvency, reorganization,
composition, readjustment, liquidation, dissolution, winding up or other
proceedings affecting Landlord or any assignee or transferee of Landlord, or (f)
for any other cause whether similar or dissimilar to any of the foregoing other
than a discharge of Tenant from any such obligations as a matter of law. Tenant
hereby specifically waives all rights, arising from any occurrence whatsoever,
which may now or hereafter be conferred upon it by law to (i) modify, surrender
or terminate this Lease or quit or surrender the Leased Property, or (ii)
entitle Tenant to any abatement, reduction, suspension or deferment of the Rent
or other sums payable by Tenant hereunder, except as otherwise specifically
provided in this Lease. The obligations of Landlord and Tenant hereunder shall
be separate and independent covenants and agreements and the Rent and all other
sums payable by Tenant hereunder shall continue to be payable in all events
unless the obligations to pay the same shall be terminated pursuant to the
express provisions this Lease. In any instance where, after the occurrence of an
Event of Default, Landlord retains funds which, but for the occurrence of such
Event of Default, would be payable to Tenant, Landlord shall refund such funds
to Tenant to the extent the amount thereof exceeds the amount necessary to
compensate Landlord for any cost, loss or damage incurred in connection with
such Event of Default.
4.2 Abatement Procedures. In the event of a partial taking or temporary
taking, which taking does not render the Leased Property Unsuitable for its
Primary Intended Use, this Lease shall not terminate, but the Rent shall be
abated in the manner and to the extent that is fair, just and equitable to both
Tenant and Landlord. If Landlord and Tenant are unable to agree upon the amount
of such abatement within thirty (30) days after such taking, the matter may be
submitted by either party to a court of competent jurisdiction for resolution.
Pending such resolution, Tenant shall remain bound to pay Rent based upon the
amounts asserted by Landlord to be due and payable, provided Landlord shall
remain liable for the repayment to Tenant of amounts ultimately determined to be
overpaid to Landlord.
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ARTICLE V
OWNERSHIP OF THE LEASED PROPERTY
5.1 Ownership of the Leased Property. Tenant acknowledges that the Leased
Property is the property of Landlord and that Tenant has only the right to the
exclusive possession and use of the Leased Property upon the terms and
conditions of this Lease, provided that, until the expiration or earlier
termination of this Lease, all capital improvements and additions made by
Tenant, at Tenant's expense, to any Leased Property shall be the property of
Tenant and, upon the expiration or earlier termination of this Lease, title to
such improvements, additions and replacements shall vest in Landlord.
5.2 Tenant's Personal Property. Tenant may (and shall as provided
hereinbelow), at its expense, install, affix or assemble or place on any parcels
of the Land or in any of the Leased Improvements any items of Tenant's Personal
Property, and Tenant may, subject to the conditions set forth below, remove the
same upon the expiration or any prior termination of the Term. Tenant shall
provide and maintain during the entire Lease Term all such Tenant's Personal
Property as shall be necessary to operate each Leased Property in compliance
with all applicable Legal Requirements and Insurance Requirements and otherwise
in accordance with customary practice in the industry for the Primary Intended
Use. All of Tenant's Personal Property not removed by Tenant within thirty (30)
days following the expiration or earlier termination of this Lease with respect
to such Leased Property where such Tenant's Personal Property is located shall
be considered abandoned by Tenant and may be appropriated, sold, destroyed or
otherwise disposed of by Landlord without first giving notice thereof to Tenant
and without any payment to Tenant and without any obligation to account
therefor.
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ARTICLE VI
AFFIRMATIVE COVENANTS
6.1 Tenant Covenants. Tenant hereby covenants and agrees with Landlord
that:
(a) Existence; Use of Leased Property; Legal Compliance; Insurance.
(i) Tenant shall do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its existence, rights,
licenses, permits and franchises and comply in all material respects with
all Legal Requirements applicable to it and the Leased Property. Tenant
shall at all times maintain and preserve the Leased Property and shall
keep the Leased Property in good working order and repair, reasonable wear
and tear excepted, and from time to time make, or cause to be made, all
reasonably necessary repairs, renewals, replacements, betterments and
improvements thereto; provided that Tenant shall, without the consent of
Landlord, make no Alteration to any Leased Property which constitutes
"Nonseverable Improvements" as such term is used in Section 4(4).03 of IRS
Revenue Procedure 75-21, as modified by IRS Revenue Procedure 79-48,
unless the conditions of Section 4(4).03(B) are satisfied and the
alteration is described in at least one of the subparagraphs of Section
4(4).03(C). Tenant will operate, maintain, repair and improve the Leased
Property in material compliance with all Legal Requirements, and will not
cause or allow the same to be misused or wasted or to deteriorate,
reasonable wear and tear excepted.
(ii) After the Commencement Date and throughout the entire Term,
Tenant shall use the applicable Leased Property and the Leased
Improvements thereof as a dry and cold storage warehousing facility and
for such other uses as may be necessary or incidental to such use,
including the provision of distribution services (such use, the "Primary
Intended Use") and, notwithstanding any restrictions on subletting
contained herein, Landlord hereby agrees that Tenant shall have the right
to enter into Warehouse Agreements. Tenant shall not use the applicable
Leased Property or any portion thereof for any other use without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld or delayed (taking into account, among other things, the
provisions hereof relating to Percentage Rent). No use shall be made or
permitted to be made of a Leased Property, and no acts shall be done, that
will cause the cancellation of any insurance policy covering such Leased
Property, nor shall Tenant sell or
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otherwise provide, or permit to be kept, used or sold in or about such
Leased Property any article which may be prohibited by law or by Insurance
Requirements. Tenant shall, at its sole cost, comply with all of the
requirements pertaining to the Leased Property or other improvements of
any insurance board, association, organization or company necessary for
the maintenance of insurance, as herein provided, covering the Leased
Property and Tenant's Personal Property. Absent force majeure and any
other event beyond the reasonable control of Tenant, and except during a
period following a Casualty or Condemnation or in which an Alteration is
being performed, Tenant shall continuously operate the Leased Property for
its Primary Intended Use.
(b) Taxes and Other Charges; Contest for Taxes and Other Charges, Legal
Requirements and Liens.
(i) Subject to the provisions of Section 6.1(b)(ii), Tenant shall
pay all Taxes and Other Charges now or hereafter levied or assessed or
imposed against the Leased Property prior to the date on which such sums
become delinquent. Tenant will deliver to Landlord, upon request, receipts
for payment or other evidence satisfactory to Landlord that the Taxes and
Other Charges have been so paid (provided Tenant shall not be required to
furnish such receipts for payment of Taxes in the event such Taxes have
been (or were to have been) paid by Landlord's Lender pursuant to
Landlord's Loan Documents). Subject to the provisions of Section
6.1(b)(ii) and other than Permitted Encumbrances, Tenant shall not suffer
and shall promptly cause to be paid and discharged any lien or charge
whatsoever which may be or become a lien or charge against the Leased
Property, and shall promptly pay for all utility services provided to the
Leased Property. Subject to Section 6.1(b)(ii), Tenant shall pay, bond or
otherwise discharge, from time to time when the same shall become due, all
claims and demands of mechanics, materialmen, laborers and others that, if
unpaid, might result in, or permit the creation of, a lien or encumbrance
on any Leased Property, or on the rents arising therefrom.
(ii) After prior written notice to Landlord, Tenant, at its own
expense, may contest by appropriate legal, administrative or other
proceeding, promptly initiated and conducted in good faith and with due
diligence, the amount or validity or application in whole or in part of
any Taxes or Other Charges or Lien therefor or any Legal Requirement or
Insurance Requirement or the application of any instrument of record
affecting the Leased Property (other than this Lease or Landlord's Loan
Documents) or any claims or judgments of mechanics,
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materialmen, suppliers, vendors or other Persons or any Lien therefor, and
may withhold payment of the same pending such proceedings if permitted by
law; provided that (A) no Event of Default has occurred and remains
uncured, except for an Event of Default caused by the matter being
contested, (B) such proceeding shall suspend any collection of the
contested Taxes, Other Charges or Liens from the Leased Property, Tenant
or Landlord, or adequate time shall at all times remain prior to such
collection, (C) such proceeding shall be permitted under and be conducted
in accordance with the provisions of any other instrument to which Tenant
is subject and shall not constitute a default thereunder, (D) neither any
Leased Property nor any part thereof or interest therein will be in danger
of being sold, forfeited, terminated, canceled or lost, (E) to the extent
not already reserved with Landlord (or Landlord's Lender) or bonded or
otherwise deposited or paid in connection with such proceedings, Tenant
shall have furnished Landlord with security (in an amount reasonably
approved by Landlord) to insure the payment of any such Taxes or Other
Charges, or the cost of the contested Legal Requirement or Insurance
Requirement or the removal of the Lien, in each case together with all
reasonably anticipated interest and penalties thereon, (F) in the case of
an Insurance Requirement, the failure of Tenant to comply therewith shall
not impair the validity of any insurance required to be maintained by
Tenant hereunder or the right to full payment of any claims thereunder,
(G) in the case of any essential or significant service with respect to
any Leased Property, any contest or failure to pay will not result in a
discontinuance of any such service, (H) in the case of any instrument of
record affecting any Leased Property or any part thereof, the contest or
failure to perform under any such instrument shall not result in the
placing of any Lien on any Leased Property or any part thereof (except if
such Lien would be removed upon completion of such proceedings and the
compliance by the parties with the terms of the resulting order, decision
or determination and the removal costs for such Lien have been escrowed
with Landlord or in the proceeding or bonded or otherwise deposited or
paid in connection with such proceedings), (I) except to the extent Tenant
has provided sufficient Eligible Collateral therefor or bonded or
otherwise deposited or paid in connection with such proceedings, neither
the failure to pay or perform any obligation which Tenant is permitted to
contest under this Section nor an adverse determination of any such
contest shall result in a material adverse effect on the utility, value or
operation of the applicable Leased Property, and (J) Tenant shall promptly
upon final determination thereof pay the amount of any such Taxes, Other
Charges or Liens, together with all costs, interest and penalties which
may be payable in connection therewith. Landlord may pay over any such
cash deposit or part thereof held by or on behalf of Landlord to the
claimant entitled thereto at any time when, in the
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judgment of Landlord, the entitlement of such claimant is finally
established, and Landlord shall otherwise remit any remaining such amounts
to Tenant. Landlord shall give Tenant written notice of any such payments
promptly following the making thereof. Subject to the foregoing, at
Tenant's timely request, Landlord shall not pay and shall not cause to be
paid from any tax or insurance escrow account that may be maintained in
connection with Landlord's Debt the contested Taxes or Other Charges being
contested.
(c) Litigation. Tenant shall give prompt written notice to Landlord of any
litigation or governmental proceedings pending or threatened in writing against
Landlord, Tenant or against or affecting the Leased Property which, if
determined adversely to Landlord, Tenant or the Leased Property, might
reasonably be expected to materially adversely affect Landlord, or Tenant's
condition (financial or otherwise) or business or the operation or value of the
Leased Property.
(d) Inspection. Tenant shall permit agents, representatives and employees
of Landlord and/or Landlord's Lender (including any servicer or special servicer
on behalf of Landlord's Lender) to inspect the Leased Property on any Business
Day at reasonable hours upon reasonable advance notice.
(e) Notice of Default. Tenant shall promptly advise Landlord of any
material adverse change in Tenant's condition (financial or otherwise) that
could reasonably be expected to materially impair the ability of Tenant to
comply with its obligations hereunder, or of the occurrence of any Default or
Event of Default under this Lease of which Tenant has knowledge.
(f) Cooperate in Legal Proceedings. Tenant shall cooperate fully with
Landlord (and with Landlord's Lender) with respect to any proceedings before any
court, board or other Governmental Authority which may in any way affect the
rights of Landlord (or Landlord's Lender, as the case may be) hereunder or in
respect of the Leased Property and, in connection therewith, permit Landlord
(and Landlord's Lender, as applicable), at its election, to participate in any
such proceedings.
(g) Insurance Benefits. Tenant shall cooperate with Landlord (and
Landlord's Lender) in obtaining for Landlord (and Landlord's Lender, as
applicable) the benefits of any insurance proceeds lawfully or equitably payable
in connection with the Leased Property, and Landlord (and Landlord's Lender, as
applicable) shall be reimbursed for any out-of-pocket expenses reasonably
incurred in connection therewith (including attorneys' fees and disbursements,
and, if reasonably necessary to collect such proceeds,
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the expense of an appraisal on behalf of Landlord in case of a fire or other
casualty affecting any Leased Property) out of such insurance proceeds.
(h) Financial Reporting and Other Information.
1. Generally. Tenant will keep and maintain or will cause to be kept
and maintained on a Fiscal Year basis proper and accurate books, records and
accounts reflecting all of the financial affairs of Tenant and all items of
Operating Income, Operating Expenses and capital expenditures. Landlord and/or
Landlord's Lender shall have the right from time to time at all times during
normal business hours upon reason able notice to examine such books, records and
accounts at the office of Tenant set forth in Article XXIII or other Person
maintaining such books, records and accounts and to make such copies or extracts
thereof, at Landlord's expense, as Landlord and/or Landlord's Lender shall
desire, provided, after the occurrence of an Event of Default, Tenant shall pay
any reasonable out-of-pocket costs and expenses incurred by Landlord and/or
Landlord's Lender in any such examination and copying (or extraction).
2. Annual Reports. Tenant will use reasonable efforts to furnish to
Landlord within sixty (60) days (and in no event later than seventy-five (75)
days) following the end of each Fiscal Year of Tenant, a complete copy of
Tenant's annual financial statements, audited by an Approved Accounting Firm, in
accordance with GAAP, covering the Properties (and, to the extent prepared by
Tenant, each Property individually) for such Fiscal Year and containing balance
sheets for Tenant and statements of profit and loss for Tenant and the
Properties in such detail as Landlord may reasonably request. Tenant's annual
financial statements shall be accompanied by a certificate signed by an
authorized officer of tenant certifying that such annual financial statement
presents fairly, in all material respects, the financial condition of the
Properties and has been prepared in accordance with GAAP. Together with Tenant's
annual financial statements, Tenant shall furnish to Landlord (A) a certificate
signed by an authorized officer of the Tenant certifying as of the date thereof
whether, to Tenant's knowledge, there exists a Default or Event of Default, and
if such Default or Event of Default exists, the nature thereof, the period of
time it has existed and the action then being taken to remedy the same, and (B)
an annual report for the most recently completed fiscal year, which report shall
contain (y) a summary of capital expenditures made by or on behalf of Tenant
with respect to each Property during such fiscal year, and (z) a description of
anticipated capital expenditures during the subsequent fiscal year. Reports with
respect to the operations of a particular Property that are delivered to
Landlord pursuant to this Section, or pursuant to any other provision in this
Lease, shall be kept
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confidential, and shall not be disclosed in any Securities Exchange Commission
or similar filings.
3. Monthly Reports. Tenant will furnish, or cause to be furnished,
to Landlord on or before the fifteenth (15th) day after the end of each calendar
month, a monthly operating statement, including a comparison of the actual
income, expense and net cash flow to the Annual Budget. The reports delivered to
Landlord pursuant to this Section need not include such statements or
comparisons with respect to the operations of individual Properties.
4. Quarterly Reports. Tenant will furnish, or cause to be furnished,
to Landlord on or before the fifteenth (15th) day after the end of each calendar
quarter, the following items, accompanied by a certificate signed by an
authorized officer of Tenant, certifying that such items are true, correct,
accurate and complete, in all material respects, and fairly present, in all
material respects, the financial condition and results of the operations of
Tenant and the Properties (and, to the extent prepared by Tenant, each Property
individually) in a manner consistent with GAAP (subject to normal year-end
adjustments): (y) quarterly and year-to-date statements prepared for such
calendar quarter with respect to Tenant, including a comparison of the actual
income, expense and net cash flow to the Annual Budget, together with a balance
sheet for such quarter and (z) a summary of capital expenditures made by or on
behalf of Tenant with respect to each Property during such calendar quarter. To
the extent that such reports are available and in final form prior to the date
set forth above, Tenant shall use good faith efforts to deliver such statements
to Landlord within forty (40) days after the end of the applicable calendar
quarter. Reports with respect to the operations of a particular Property that
are delivered to Landlord pursuant to this Section, or pursuant to any other
provision in this Lease, shall be kept confidential, and shall not be disclosed
in any Securities Exchange Commission or similar filings
5. Supplemental Information. Tenant shall furnish to Landlord,
within seven (7) days after request, such further detailed information with
respect to the operation of the Properties (or any of them) and the financial
affairs of Tenant as may be reasonably requested by Landlord.
6. Governmental Notices. Tenant shall furnish to Landlord, promptly
after receipt, a copy of any notice received by or on behalf of Tenant from any
Governmental Authority having jurisdiction over any Property with respect to any
material violation of Legal Requirements or any condition existing or alleged to
exist or emanate therefrom or thereat involving Hazardous Substances.
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7. Landlord's Lender. Tenant agrees to furnish to Landlord, at such
time as may be required pursuant to any Landlord's Loan Documents or as may
reasonably be requested by Landlord, such financial reports (including annual
and quarterly financial statements and monthly operating statements, including a
comparison of the actual income, expense and Net Cash Flow to the Annual
Budget), and other information relating in each case to Tenant or the Leased
Properties as may reasonably be requested by Landlord.
8. Annual Budget. Tenant shall prepare and deliver to Landlord, for
Landlord's approval, which approval shall not be unreasonably withheld or
delayed, forty-five (45) days prior to the commencement of each year, a proposed
Annual Budget in respect of the Leased Property (and, to the extent otherwise
prepared by Tenant, each Leased Property individually) for the ensuing Fiscal
Year.
(i) Business and Operations. Tenant will continue to engage in the
businesses currently conducted by it as and to the extent the same are necessary
for the ownership, maintenance, management, subleasing and operation of the
Leased Property. Tenant will qualify to do business and will remain in good
standing under the laws of each jurisdiction as and to the extent the same are
required for the conduct of its business (including the operation and management
of the Leased Property as refrigerated warehousing facilities and related uses).
(j) Intentionally Omitted.
(k) Intentionally Omitted.
(l) Material Agreements. Tenant shall:
(i) promptly perform and/or observe all of the material covenants
and agreements required to be performed and observed by it under any
Material Agreement, and do all things necessary to preserve and to keep
unimpaired its material rights thereunder;
(ii) promptly notify Landlord of the giving of any notice of any
material default by any party under any Material Agreement of which it is
aware; and
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(iii) promptly enforce the performance and observance of all of the
material covenants and agreements required to be performed and/or observed
by the other party under each Material Agreement.
(m) Ground Leased Property. With respect to the Ground Leased Property,
Tenant shall observe and perform all of the obligations of Landlord under each
Ground Lease.
ARTICLE VII
NEGATIVE COVENANTS
7.1 Tenant's Negative Covenants. Tenant covenants and agrees with Landlord
that it will not do, directly or indirectly, any of the following:
(a) Operation of Property. Tenant shall not, without Landlord's prior
consent, which consent shall not be unreasonably withheld or delayed (except as
elsewhere herein expressly provided): (i) surrender or terminate any Material
Agreement (unless the other party thereto is in material default and the
termination of such agreement would be commercially reasonable), (ii) increase
or consent to the increase of the amount of any charges payable by Tenant or
Landlord under any Material Agreement, except as provided therein or on an
arms'-length basis and commercially reasonable terms; or (iii) otherwise modify,
change, supplement, alter or amend, or waive or release any of its rights and
remedies under any Material Agreement in any material respect that is materially
adverse to the interests of Landlord, except on an arms'-length basis and
commercially reasonable terms.
(b) Liens. Subject to Section 6.1(b)(ii), Tenant shall not, without the
prior written consent of Landlord, create, incur, assume, permit or suffer to
exist any Lien on any portion of the Leased Property (or any of them), except
(i) Permitted Encumbrances, (ii) Liens created by or permitted pursuant to
Landlord's Loan Documents and (iii) Liens for Taxes or Other Charges not yet
delinquent.
(c) Affiliate Transactions. Tenant shall not enter into, or be a party to,
any transaction with an Affiliate of Tenant except in the ordinary course of
business and on terms which are fully disclosed to Landlord in advance and are
no less favorable to Tenant or such Affiliate than would be obtained in a
comparable arms'-length transaction with an unrelated third party.
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(d) Zoning and Uses. Tenant shall not (i) initiate or support any limiting
change in the permitted uses of any Leased Property (or to the extent
applicable, limiting zoning reclassification of any Leased Property), (ii) seek
any variance under existing land use restrictions, laws, rules or regulations
(or, to the extent applicable, zoning ordinances) applicable to any Leased
Property or use or permit the use of any Leased Property in each case in a
manner that would result in the existing use becoming a non-conforming use under
applicable land-use restrictions (and, if any, zoning ordinances) with any
materially adverse effect on the value of the Leased Property or that would
violate the terms of any Lease, Operating Agreement, Legal Requirements or any
Permitted Encumbrance, (iii) modify, amend or supplement any of the terms of any
Permitted Encumbrance in a manner adverse in any material respect to the
interests of Landlord, (iv) impose or permit or suffer the imposition of any
restrictive covenants, easements or encumbrances upon the Leased Property in any
manner that adversely affects in any material respect the value or utility of
the Leased Property, (v) execute or file any subdivision plat affecting any
Leased Property, institute, or permit the institution of, proceedings to alter
any tax lot comprising any Leased Property or (vi) permit or suffer any Leased
Property to be used by the public or any Person in such manner as might make
possible a claim of adverse usage or possession or of any implied dedication or
easement.
(e) Nonexempt ERISA Transactions. Tenant shall not engage in a nonexempt
prohibited transaction described in Section 406 of ERISA or Section 4975 of the
Code, as such sections relate to Tenant, or in any transaction that would cause
any obligation or action taken or to be taken hereunder (or the exercise by
Landlord's Lender of any of its rights under the Lender's Loan Documents (if
applicable)) to be a non-exempt prohibited transaction under ERISA.
ARTICLE VIII
ALTERATIONS; LEASING
8.1 Alterations. Tenant will not make any demolition, alteration,
installation, improvement, expansion, reduction or decoration (each, an
"Alteration") of or to any Leased Property or any part thereof, except in
accordance with the following terms and conditions:
(a) The Alteration shall be undertaken in accordance with the applicable
provisions of this Lease, Landlord's Loan Documents, the Operating Agreements,
the Leases and all Legal Requirements.
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(b) No Event of Default shall have occurred and be continuing and no
Default shall occur as a result of such action.
(c) The Alteration shall not materially adversely affect the (i) Primary
Intended Use or (ii) fair market value of the Leased Property in question.
(d) A Material Alteration shall be conducted under the supervision of a
Qualified Architect or Engineer and shall not be undertaken until ten (10)
Business Days after there shall have been delivered to Landlord, for information
purposes only and not for approval by Landlord, detailed plans and
specifications and cost estimates therefor, prepared and approved in writing by
such Qualified Architect or Engineer. Such plans and specifications may be
revised at any time and from time to time, provided that material revisions of
such plans and specifications shall be delivered to Landlord for information
purposes only.
(e) Other than in connection with any Restoration, the Alteration may not,
in and of itself, either during the Alteration or upon completion, materially
adversely affect the Receipts derived from the Leased Property in question,
taking into account the Percentage Rent requirements hereunder; provided that
if, as reasonably determined by Landlord, such Alteration would materially
adversely affect the Net Operating Income at such Leased Property (taking into
account any amount then in any reserve account funded pursuant to any Cash
Management Procedures and permitted to be used in connection with such Material
Alteration), then in order to proceed with the Alteration, Tenant shall deliver
to a Depositary Eligible Collateral in the total amount of the estimated
reduction in Net Operating Income resulting from the Alteration, which Eligible
Collateral shall be returned to Tenant after substantial completion of the
Alteration if the reduction in Net Operating Income has been restored and no
Event of Default has occurred and is continuing.
(f) All work done in connection with any Alteration shall be performed
with due diligence in a good and workmanlike manner, all materials used in
connection with any Alteration shall be not less than the standard of quality of
the materials generally used at the applicable Leased Property as of the date
hereof (or, if greater, the then-current customary quality in the submarket in
which such Leased Property is located) and all work shall be performed and all
materials used in accordance with all applicable Legal Requirements and
Insurance Requirements.
(g) The cost of any Alteration shall be promptly and fully paid for by
Tenant, subject to the next succeeding sentence. No payment made prior to the
Final Completion
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of an Alteration or Restoration to any contractor, subcontractor, materialman,
supplier, engineer, architect, project manager or other Person who renders
services or furnishes materials in connection with such Alteration shall exceed
ninety five percent (95%) of the value of the work performed from time to time
and materials furnished and incorporated into the Improvements.
(h) All items (other than Eligible Collateral) to be delivered to the
Depositary hereunder shall also be delivered to Landlord (if Landlord is not the
Depositary), and, if required under Section 15.5, Landlord's Lender (if
Landlord's Lender is not the Depositary).
(i) For any Material Alteration (other than a Material Alteration the cost
of which one or more Subtenants are obligated to pay for or reimburse to Tenant
and which Tenant reasonably believes will be so paid or reimbursed in a timely
manner), Tenant shall be obligated to deliver to a Depositary Eligible
Collateral in an amount that, when taken together with any amount then in any
reserve account funded pursuant to any Cash Management Procedures and permitted
to be used in connection with such Material Alteration, shall be sufficient to
pay all of the costs of the Material Alteration in excess of the Threshold
Amount, which Eligible Collateral shall be held by the Depositary and released
to Tenant as such work progresses in accordance with Section 8.1(j). In
addition, if all Material Alterations (other than a Material Alteration the cost
of which one or more Subtenants are obligated to pay for or reimburse to Tenant
and which Tenant reasonably believes will be so paid or reimbursed in a timely
manner) then being performed exceeds $10,000,000 (the "Aggregate Threshold
Amount"), Tenant shall be obligated to deliver to the Depositary Eligible
Collateral in amount that, when taken together with (x) any Eligible Collateral
previously delivered under this subsection (i) and (y) any amounts then in any
reserve funded pursuant to any Cash Management Procedures and permitted to be
used in connection with such Material Alteration, shall be sufficient to pay all
of the costs of the Material Alteration in excess of the Aggregate Threshold
Amount, which Eligible Collateral shall be held by the Depositary and released
to Tenant at such time as the remaining costs of the Material Alteration are
less than the Aggregate Threshold Amount.
(j) With respect to any Material Alteration as to which Tenant shall have
delivered Eligible Collateral in accordance with Section 8.1(i):
(i) Tenant shall deliver to the Depositary a schedule (which shall
be concurred in by the Qualified Architect or Engineer) setting forth the
projected stages of completion of such Alteration(s) and the corresponding
amounts
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expected to be due and payable by or on behalf of Tenant in connection
with such completion, such schedule to be updated quarterly by Tenant (and
concurred with by a Qualified Architect or Engineer) during the
performance of such Alteration(s).
(ii) Any Eligible Collateral that Tenant delivers to the Depositary
pursuant hereto (and the proceeds of any such Eligible Collateral) shall
be invested (to the extent such Eligible Collateral can be invested) by
the Depositary in Permitted Investments for a period of time consistent
with the date on which Tenant notifies the Depositary that Tenant expects
to request a release of such Eligible Collateral in accordance with the
next succeeding sentence. From time to time as the Alteration progresses,
the amount of any Eligible Collateral so furnished may, upon the written
request of Tenant to the Depositary, be withdrawn by Tenant and paid or
otherwise applied by or returned to Tenant in an amount equal to the
amount Tenant would be entitled to so withdraw if Section 10.2(d) hereof
were applicable, and any Eligible Collateral so furnished which is a
Credit Facility may be reduced by Tenant in an amount equal to the amount
Tenant would be entitled to so reduce if Section 10.2(d) hereof were
applicable, subject, in each case, to the satisfaction of the conditions
precedent to withdrawal of funds or reduction of the Credit Facility set
forth in said Section 10.2(d). In connection with the above-described
quarterly update of the projected stages of completion of the Material
Alteration (as concurred with by an Qualified Architect or Engineer),
Tenant shall increase (or be permitted to decrease, as applicable) the
Eligible Collateral then deposited with the Depositary as necessary to
comply with Section 8.1(i) hereof.
(iii) At any time after final completion of such Alterations, the
whole balance of any Cash deposited with the Depositary pursuant to
Section 8.1(j) then remaining on deposit may be withdrawn by Tenant and
shall be paid by the Depositary to Tenant, and any Eligible Collateral so
deposited shall, to the extent it has not been called upon, reduced or
theretofore released, be released by the Depositary to Tenant, within ten
(10) days after receipt by the Depositary of an application for such
withdrawal and/or release together with an Officer's Certificate, and as
to the following clauses (A) and (B) of this clause also a certificate of
the Qualified Architect or Engineer, setting forth in substance as
follows:
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(A) that such Alteration(s) has been completed substantially
in accordance with any plans and specifications therefor previously
filed with Landlord under Section 8.1(d) hereof;
(B) that, to the knowledge of the certifying Person, (x) such
Alteration(s) has been completed in compliance, in all material
respects, with all Legal Requirements, and (y) to the extent
required for the legal use or occupancy of the portion of the Leased
Property affected by such Alteration(s), Tenant has obtained a
temporary or permanent certificate of occupancy (or similar
certificate) or, if no such certificate is required, a statement to
that effect;
(C) that to the knowledge of the certifying Person, all
amounts that Tenant is or may become liable to pay in respect of
such Alteration(s) through the date of the certification have been
paid in full or adequately provided for and, to the extent that such
are customary and reasonably obtainable by prudent property owners
in the area where the Leased Property is located, that Lien waivers
have been obtained from the general contractor and major
subcontractors performing such Alteration or, at its sole cost and
expense, Tenant shall cause a nationally recognized title insurance
company to deliver to Landlord either (x) an endorsement or other
affirmative coverage with respect to the then-current loan policy in
favor of Landlord's Lender, updating such policy and insuring over
such Liens without further exceptions to such policy other than
Permitted Encumbrances, or (y) owner's and loan title insurance
policies, in such form, in such amounts and with such endorsements
as shall be reasonably satisfactory to Landlord and Landlord's
Lender, which policies shall be dated the date of completion of the
Material Alteration and shall contain no exceptions other than
Permitted Encumbrances; and
(D) that to the knowledge of the certifying Person, no Event
of Default has occurred and is continuing;
provided that if, for any reason, Tenant is unable to deliver the
certification required by clause (C) above with respect to any costs or
expenses relating to the Alteration, then, assuming Tenant is able to
satisfy each of the other requirements set forth in clauses (A), (B), (C)
and (D) above, Tenant shall be entitled to the release of the difference
between the whole balance of such Eligible Collateral and the total of all
costs and expenses to which Tenant is unable to certify.
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8.2 Subletting and Assignment; Warehouse Agreements.
8.2.1 Generally. Except as expressly provided herein, Tenant shall
not, without the prior written consent of Landlord, which may be withheld in
Landlord's sole discretion, assign, mortgage, pledge, hypothecate, encumber or
otherwise transfer this Lease or sublease all or any part of the Leased Property
or suffer or permit this Lease or the leasehold estate created hereby or thereby
or any other rights arising under this Lease to be assigned, transferred,
mortgaged, pledged, hypothecated or encumbered, in whole or in part, whether
voluntarily or involuntarily or by operation of law, or permit the use or
occupancy of the applicable Leased Property to be offered or advertised for
assignment or subletting except as hereinafter provided. For purpose of this
Section 8.2, an assignment of this Lease shall be deemed to include any change
in control of Tenant, as if such change in control or transaction were an
assignment of this Lease.
8.2.2 Certain Sublettings and Assignments. Subject to the provisions
of Section 8.2.3 and any other express conditions or limitations set forth
herein,
(a) without the consent of Landlord, Tenant may (i) assign
this Lease (in whole but not in part) to any of its Affiliates and (ii)
sublet all or any part of the Leased Property to any Affiliates; provided,
in each case, that after giving effect to such assignment or sublease, the
Leased Properties shall continue at all times to be operated and managed
by substantially the same individuals responsible for the same immediately
prior to the applicable assignment or sublease; and
(b) without the consent of Landlord, Tenant may sublet all or
any part of any one or more Leased Property (i) in the normal course of
the Primary Intended Use and (ii) to concessionaires or other third party
users or operators of portions of the Leased Property in furtherance of
the Primary Intended Use.
8.2.3 Landlord's Right to Collect from Assignees and Subtenants. If
this Lease is assigned or if the applicable Leased Property or any part thereof
is sublet (or occupied by any entity other than Tenant and its employees),
Landlord, after an Event of Default occurs and so long as it is continuing, may
collect the rents from such assignee, Subtenant or occupant, as the case may be,
and apply the net amount collected to the Rent herein reserved, but no such
collection shall be deemed (i) a waiver of the provisions set forth in Section
8.2.1, (ii) the acceptance by Landlord of such assignee, Subtenant or
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occupant, as the case may be, as a tenant or (iii) release of Tenant from the
future performance of its covenants, agreements or obligations contained in this
Lease.
8.2.4 No Release. No subletting or assignment shall in any way
impair the continuing primary liability hereunder of the Tenant named herein, as
well as of each subsequent Tenant, and no consent to any subletting or
assignment in any particular instance shall be deemed a waiver of the
prohibition set forth in this Section 8.2. No assignment, subletting or
occupancy shall affect the obligation to use the Leased Property in accordance
with Section 6.1(a)(ii). Any subletting, assignment or other transfer of
Tenant's interest in this Lease in contravention of this Section 8.2 shall be
void at Landlord's option.
8.2.5 Required Assignment and Subletting Provisions. Any assignment
and/or Sublease must provide that:
(a) it shall be subject and subordinate to all of the terms
and conditions of this Lease,
(b) the use of the applicable Leased Property shall be
restricted to the uses and purposes expressly permitted by this Lease and
shall not conflict with any Legal Requirement, Insurance Requirement or
any other provision of this Lease,
(c) no Subtenant or assignee shall be permitted to further
sublet all or any part of the applicable Leased Property or assign this
Lease or its sublease except as expressly provided in this Lease,
(d) in the event of cancellation or termination of this Lease
for any reason whatsoever or of the surrender of this Lease (whether
voluntary, involuntary or by operation of law) prior to the expiration
date of such Sublease, including extensions and renewals granted
thereunder, then, at Landlord's option, the Subtenant shall make full and
complete attornment to Landlord for the balance of the term of the
Sublease, which attornment shall be evidenced by an agreement in form and
substance satisfactory to Landlord and which the Subtenant shall execute
and deliver within five (5) days after request by Landlord and the
Subtenant shall waive the provisions of any law now or hereafter in effect
which may give the Subtenant any right of election to terminate the
Sublease or to surrender possession in the event any proceeding is brought
by Landlord to terminate this Lease, and
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(e) in the event the Subtenant receives a written notice from
Landlord stating that Tenant is in Default under this Lease, the Subtenant
shall thereafter be obligated to pay all rentals accruing under said
sublease directly to Landlord or as such party may direct; all rentals
received from the Subtenant by Landlord shall be credited against the
amounts owing by Tenant under this Lease.
8.2.6 Reimbursement of Landlord's Costs. Tenant shall pay to
Landlord, within ten (10) business days after request therefore, all costs and
expenses, including reasonable attorneys' fees, incurred by Landlord (including,
to the extent Landlord is liable for the same, by Landlord's Lender) in
connection with any request made by Tenant to Landlord to assign this Lease or
sublet the applicable Leased Property.
8.2.7 Warehouse Agreements. The above provisions of this Section 8.2
shall not be applicable to Warehouse Agreements, provided that Tenant shall use
commercially reasonable efforts to include in any Warehouse Agreement entered
into from and after the date hereof that the other party thereto shall permit
the collateral assignment described in Section 8.4 hereof, and the collateral
assignment by Landlord to Landlord's Lender of Landlord's security interests in
respect of each Sublease and Warehouse Agreement and such amounts to secure
Landlord's obligations under Landlord's Loan Documents.
8.2.8 Certain Leases Senior. With respect to those leases listed on
Exhibit 8.2.8, hereto, the parties acknowledge that Landlord is, as of the
Commencement Date, the lessor thereunder (whether by operation of law or
otherwise) and that such leases are, by operation of law, senior to this Lease.
Tenant shall perform and comply with all obligations of lessor under such leases
and, provided no Event of Default shall have occurred and be continuing, Tenant
shall be entitled to the receipt of all amounts payable by the lessees under
such leases.
8.3 REIT Related Limitations on Subleasing and Warehouse Agreement.
Anything contained in this Lease to the contrary notwithstanding, Tenant shall
not sublet the Leased Property, or enter into Warehouse Agreements, on any basis
such that (i) the rental or other consideration to be paid by the Subtenant or
other party thereunder would be based, in whole or in part, on the income or
profits derived by the business activities of the Subtenant or such other Party,
or (ii) any portion of the amounts received or accrued by Landlord hereunder
would fail to qualify as "rents from real property" within the meaning of
Section 856(d) of the Code, or any similar or successor provision thereto.
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8.4 Collateral Assignment of Subleases and Warehouse Agreements to
Landlord. As security for Tenant's obligations under this Lease and not
otherwise, but subject to any limitations pursuant to applicable law or
contracts (including the terms of any existing or future Subleases and Warehouse
Agreements), Tenant hereby assigns, transfers and sets over unto Landlord all of
Tenant's right, title and interest in and to all Subleases and Warehouse
Agreements, and Tenant hereby confers upon Landlord, its agents and
representatives, a right of entry in, and sufficient possession of, the Leased
Property to permit and assure the collection by Landlord of all sums payable to
Tenant, if any, under the Subleases and all sums payable to Tenant pursuant to
the Warehouse Agreements. The exercise of this right of entry and qualified
possession by Landlord shall not constitute an eviction of Tenant from the
Leased Property. Further, Tenant acknowledges that Landlord may collaterally
assign its rights under this Section 8.4 to Landlord's Lender, to secure
Landlord's obligations in respect of Landlord's Debt. This assignment, although
presently effective, is operative only upon the occurrence of an Event of
Default hereunder and not before. Nothing in this Section 8.4, however, shall be
deemed to limit or qualify the rights of any Leasehold Mortgagee pursuant to
Section 8.5 below.
8.5 Leasehold Mortgages.
8.5.1 Landlord's Estate. No Leasehold Mortgage or any extension
thereof made by Tenant shall be a lien or encumbrance upon the estate or
interest of Landlord in and to the Leased Property or any part thereof.
8.5.2 Certain Leasehold Mortgage Requirements. No Leasehold Mortgage
shall be valid or of any force or effect, or be deemed for purposes of this
Lease to be a Leasehold Mortgage, unless and until (a) a true copy of the
original of each instrument creating and effecting such Leasehold Mortgage,
certified by the Leasehold Mortgagee to be a true copy of such instrument, and
written notice containing the name and post office address of the Leasehold
Mortgagee, shall have been delivered to Landlord, (b) any consent required
hereunder by Landlord shall have been given, and (c) the Leasehold Mortgage
shall contain in substance the following provisions:
"This mortgage is executed upon the condition that no purchaser at
any foreclosure sale or assignee under an assignment in lieu of
foreclosure shall acquire any right, title or interest in or to the
lease hereby mortgaged, unless the said purchaser or assignee, or
the person, firm or corporation to whom or to which such purchaser's
or assignee's right has been assigned, shall in the instrument
transferring to such purchaser or to such assignee
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the interest of tenant under the lease hereby mortgaged, assume and
agree to perform all of the terms, covenants and conditions of that
lease thereafter to be observed or performed on the part of such
tenant (subject to the terms of Section 8.5.3(d) and/or Section
8.5.6 thereof, to the extent applicable), that no further or
additional mortgage or assignment of the lease hereby mortgaged
shall be made except in accordance with the provisions contained in
Article VIII of that lease, and that a duplicate original of said
instrument containing such assumption agreement, duly executed and
acknowledged by such purchaser or such assignee and in recordable
form, shall be delivered to the landlord under the hereby mortgaged
lease immediately after the consummation of such sale, or in any
event, prior to taking possession of the premises demised thereby as
"Tenant" under the lease."
8.5.3 Leasehold Mortgagee Provisions.
(a) If Tenant shall enter into a Leasehold Mortgage and complies, in
connection therewith, with the provisions of Section 8.5.1 and 8.5.2, Landlord
shall give to such Leasehold Mortgagee, at the address of such Leasehold
Mortgagee set forth in the notice mentioned in Section 8.5.2, a copy of each
notice of Default by Tenant and each notice of termination of this Lease at the
same time as, and whenever, any such notice of Default or termination shall be
given to Tenant, and no such notice shall be deemed to have been duly given to
Tenant unless and until a copy thereof shall have been so given to each such
Leasehold Mortgagee. Each Leasehold Mortgagee (i) shall thereupon have a period
of ten (10) days more in the case of a monetary Default and twenty (20) days
more in the case of any non-monetary Default, after notice of such Default is
given to the Leasehold Mortgagee, for curing the Default, or causing the same to
be cured by Tenant or otherwise, than is given Tenant after such notice is given
to Tenant, and (ii) shall, within such period and otherwise as herein provided,
have the right to cure such Default, cause the same to be cured by Tenant or
otherwise. Landlord shall accept performance by a Leasehold Mortgagee of any
covenant, condition, or agreement on Tenant's part to be performed hereunder
with the same force and effect as though performed by Tenant.
(b) Notwithstanding the provisions of Section 8.5.3(a) hereof, no
Event of Default shall be deemed to exist as long as a Leasehold Mortgagee, in
good faith, (i) shall have commenced promptly to cure the Default in question
and prosecutes the same to completion with reasonable diligence and continuity,
subject to Unavoidable Delays, which for the purpose of this Section 8.5.3(b)
shall include causes beyond the control of such Leasehold Mortgagee instead of
causes beyond the control of Tenant, or
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(ii) if possession of the Leased Property is required in order to cure the
Default in question, such Leasehold Mortgagee (x) shall have entered into
possession of the Leased Property with the permission of Tenant for such purpose
or (y) shall have notified Landlord of its intention to institute foreclosure
proceedings to obtain possession directly or through a receiver, and within
fourteen (14) days of the giving of such notice commenced such foreclosure
proceedings and thereafter (1) prosecutes such proceedings with reasonable
diligence and continuity (subject to Unavoidable Delays) or (2) receives an
assignment of this Lease in lieu of foreclosure from Tenant, and, upon obtaining
possession pursuant to clause (x) or (y), commences promptly to cure the Default
in question and prosecutes the same to completion with reasonable diligence and
continuity (subject to Unavoidable Delays) or (iii) if the Leasehold Mortgagee
is a collateral assignee or the holder of a security interest in ownership
interests in Tenant and the foreclosure of its collateral assignment or security
interest is required in order to act under (i) or (ii) above, such Leasehold
Mortgagee shall have notified Landlord of its intention to institute proceedings
to foreclose such collateral assignment or pledge and within fourteen (14) days
of the giving of such notice commences such foreclosure proceedings, and
thereafter (1) prosecutes such proceedings with reasonable diligence and
continuity (subject to Unavoidable Delays) or (2) receives a direct and absolute
assignment from the assignor under the collateral assignment of its interest in
the Leasehold Mortgage or of the ownership interest, in lieu of foreclosure, and
upon the completion of such foreclosure, or the obtaining of such assignment,
commences promptly to act under (i) or (ii) above; provided that the Leasehold
Mortgagee shall have delivered to Landlord, in writing, its agreement to take
the action described in clause (i), (ii) or (iii) herein and shall have assumed
the obligation to cure the Default in question and that during the period in
which such action is being taken (and any foreclosure proceedings are pending),
all of the other obligations of Tenant under this Lease, to the extent they are
susceptible of being performed by the Leasehold Mortgagee, are being duly
performed within any applicable grace periods. However, at any time after the
delivery of the aforementioned agreement, the Leasehold Mortgagee may notify
Landlord, in writing, that it has relinquished possession of the Leased Property
or that it will not institute foreclosure proceedings, or if such proceedings
have been commenced, that it has discontinued them, and in such event, the
Leasehold Mortgagee shall have no further liability under such agreement from
and after the date it delivers such notice to Landlord (except for any
obligations assumed by the Leasehold Mortgagee and accruing prior to the date it
delivers such notice), and, thereupon, Landlord shall have the unrestricted
right to terminate this Lease and to take any other action it deems appropriate
by reason of any Default by Tenant, and upon any such termination the provisions
of Section 8.5.4 shall apply. Anything contained in this Section 8.5.3(b) to the
contrary notwithstanding, the provisions of this Section 8.5.3(b) shall not
apply in the case of a Leasehold Mortgagee which is not an Institutional Lender
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unless such Leasehold Mortgagee shall provide Landlord with security for the
performance of the assumed obligation in amount and form reasonably satisfactory
to Landlord, during the period that such Leasehold Mortgagee is taking the
required action to cure the Default in question.
(c) Landlord and Tenant agree that, from and after the date upon
which Landlord receives the notice and documents mentioned in clause (a) of
Section 8.5.2, they shall not modify or amend this Lease in any respect
materially adverse to the right of Tenant or Leasehold Mortgagee or cancel or
terminate this Lease other than as provided herein without the prior written
consent of the Leasehold Mortgagees which have given such notice.
(d) Except as provided in Section 8.5.3(b), no Leasehold Mortgagee
shall become liable under the provisions of this Lease unless and until such
time as it becomes, and then only for as long as it remains, the owner of the
leasehold estate created hereby.
8.5.4 Leasehold Mortgagee's Rights upon Termination of this Lease.
(a) In case of termination of this Lease by reason of any Event of
Default or for any other reason, Landlord, subject to the provisions of Section
8.5.4(e), shall give prompt notice thereof to each Leasehold Mortgagee under a
mortgage made in compliance with the provisions of Sections 8.5.1 and 8.5.2,
which notice shall be given as provided in Section 8.5.3(a) hereof. Landlord, on
written request of such Leasehold Mortgagee made any time within thirty (30)
days after the giving of such notice by Landlord, shall execute and deliver
within thirty (30) days thereafter a new lease of the Leased Property to the
Leasehold Mortgagee, or its designee or nominee, for the remainder of the Term,
upon all the covenants, conditions, limitations and agreements herein contained,
provided that the Leasehold Mortgagee (i) shall pay to Landlord, simultaneously
with the delivery of such new lease, all unpaid Rent due under this Lease up to
and including the date of the commencement of the term of such new lease and all
expenses including attorneys' fees and disbursements and court costs, incurred
by Landlord in connection with the Default by Tenant, the termination of this
Lease and the preparation of the new lease, and (ii) shall deliver to Landlord a
statement, in writing, acknowledging that Landlord, by entering into a new lease
with the Leasehold Mortgagee or its nominee or designee, shall not have or be
deemed to have waived any rights or remedies with respect to Defaults existing
under this Lease, notwithstanding that any such Defaults existed prior to the
execution of the new lease, and that the breached obligations which gave rise to
the Defaults and which are susceptible of being cured by
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the Leasehold Mortgagee or its nominee or designee are also obligations under
said new lease, but such statement shall be subject to the proviso that the
applicable grace periods, if any, provided under the new lease for curing such
obligations shall begin to run as of the first day of the term of said new
lease.
(b) Any such new lease and the leasehold estate thereby created
shall, subject to the same conditions contained in this Lease, continue to
maintain the same priority as this Lease with regard to any Leasehold Mortgage
or any other lien, charge or encumbrance whether or not the same shall then be
in existence. Concurrently with the execution and delivery of such new lease,
Landlord shall assign to the tenant named therein all of its right, title and
interest in and to moneys received from any Subleases and Warehouse Agreements
that have not been applied to Rent and have not been applied or being held for
application to the costs incurred by Landlord to operate, maintain and repair
the Leased Property.
(c) Upon the execution and delivery of a new lease under this
Section 8.5.4, all Subleases and Warehouse Agreements which theretofore may have
been assigned to Landlord thereupon shall be assigned and transferred, without
recourse, representation or warranty, by Landlord to the tenant named in such
new lease. Between the date of termination of this Lease and the earlier of (i)
the date of execution and delivery of the new lease and (ii) the date of
Leasehold Mortgagee's option to request a new lease pursuant to this Section
8.5.4 expires without the exercise of such option, Landlord shall not enter into
any new Subleases or Warehouse Agreements, cancel or modify any then existing
Subleases or Warehouse Agreements, or accept any cancellation, termination or
surrender thereof (unless such termination shall be effected as a matter of law
on the termination of this Lease) without the written consent of the Leasehold
Mortgagee, except as permitted in the Subleases or Warehouse Agreements.
(d) If there is more than one Leasehold Mortgage, Landlord shall
recognize the Leasehold Mortgagee whose Leasehold Mortgage is junior in lien as
the Leasehold Mortgagee entitled to the rights afforded by Sections 8.5.3, 8.5.4
and 8.5.5 (unless a Leasehold Mortgagee senior in lien requires that the holder
thereof have a superior entitlement to such rights, in which event such
recognition shall be of the holder of that Leasehold Mortgage), provided that
such Leasehold Mortgagee shall have complied with the provision of Sections
8.5.1 and 8.5.2. A security agreement providing for a security interest in the
ownership interests in Tenant and otherwise complying with the terms hereof for
a Leasehold Mortgage shall be treated as a Leasehold Mortgage that is junior in
lien.
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8.5.5 Notice of Arbitration. In any circumstances where arbitration
is provided for under this Lease, Landlord agrees that Landlord shall give any
Leasehold Mortgagee who shall have given Landlord a notice as provided in
Section 8.5.2(a), notice of any demand by Landlord for any arbitration, and
Landlord shall recognize the Leasehold Mortgagee entitled to the rights afforded
hereunder in accordance with Section 8.5.4(d) as the only proper party to
participate in the arbitration. In such case, Tenant agrees not to participate
in such arbitration.
ARTICLE IX
9.1 Maintenance and Repair.
(a) Subject to Landlord's obligation under Section 9.1(b), Tenant,
at its expense, shall keep the Leased Property and all private roadways,
sidewalks and curbs appurtenant thereto and which are under Tenant's control
(and Tenant's Personal Property) in good order and repair, reasonable wear and
tear excepted (whether or not the need for such repairs occurs as a result of
Tenant's use, any prior use, the elements or the age of such Leased Property or
Tenant's Personal Property, or any portion of either) and shall promptly make
all necessary and appropriate repairs and replacements thereto, of every kind
and nature, whether interior or exterior, structural or non-structural, ordinary
or extraordinary, foreseen or unforeseen, arising by reason of a condition
(concealed or otherwise) occurring subsequent or prior to the Commencement Date.
All repairs shall, to the extent reasonably achievable, be made in good,
workmanlike and first-class manner, in accordance with all applicable federal,
state and local statutes, ordinances, by-laws, codes, rules and regulations
relating to such work. Tenant will not take or omit to take any action the
taking or omission of which might materially impair the value or usefulness of
the Leased Property or any part thereof for the Primary Intended Use.
(b) Notwithstanding anything herein to the contrary, Landlord shall
promptly make all necessary and appropriate repairs and replacements to the
Leased Property (other than those repairs and replacements (i) caused by the
negligence or wilfull misconduct of Tenant or any Person claiming by, through or
under Tenant or (ii) required as a result of Casualty or Condemnation to the
Leased Property) the costs of which are required to be depreciated under the
Internal Revenue Code on a 39-year basis (or any successor period of
depreciation for buildings) ("39-Year Property") in an amount not in excess of
the amount specified on Schedule 9.1(b) hereto under the column captioned
"Landlord's Responsibility," provided (x) Landlord's obligation pursuant to the
above terms of the sentence shall be subject to prior reasonable notice from
Tenant as to the
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need to make such repair and replacement, and (y) Landlord may elect that Tenant
perform such repair and replacement, in which event, Landlord shall reimburse or
pay to Tenant, within fifteen (15) days after Tenant's submission to Landlord of
reasonable evidence of the out-of-pocket costs incurred by Tenant in making such
repairs and replacements. Further,
(1) Tenant shall make all necessary and appropriate repairs
and replacements required in respect of 39-Year Property to the extent the
same exceed the amount specified on said Schedule 9.1(b) under the column
captioned "Landlord's Responsibility", and
(2) Tenant agrees that (A) it shall expend annually for the
repair and replacement of 39-Year Property not less than the amount
specified on Schedule 9.1(b) under the column captioned "Minimum Tenant's
Responsibility", provided that Tenant shall not be deemed to have expended
any amounts in satisfaction of the "Minimum Tenant's Responsibility"
identified on said Schedule 9.1(b) until such time as Tenant shall have
expended all amounts required to be spent by Tenant under Section 2.3 of
the Asset Purchase Agreement in connection with which this Lease is being
executed, to which Tenant (or its Affiliate) is party, (B) to the extent
Tenant shall have spent less than the specified amount in any Lease Year,
such unspent amount shall cumulate and Tenant shall be required to expend
the unspent portion in subsequent Lease Years, and (C) if at the end of
the Term, there shall be any cumulative unspent amounts, Tenant shall pay
such amount to Landlord not later than the end of the Term.
(c) Except as expressly specified in Section 9.1(b), Landlord shall
not under any circumstances be required to build or rebuild any improvements on
the Leased Property, or to make any repairs, replacements, alterations,
restorations or renewals of any nature or description to the Leased Property,
whether ordinary or extraordinary, structural or non-structural, foreseen or
unforeseen, or to make any expenditure whatsoever with respect thereto, or to
maintain the Leased Property in any way, except as expressly provided herein.
Tenant hereby waives, to the extent permitted by law, the right to make repairs
at the expense of Landlord pursuant to any law in effect at the time of the
execution of this Lease or thereafter enacted.
(d) Nothing contained herein and no action or inaction by Landlord
shall be construed as (i) constituting the consent or request of Landlord,
expressed or implied, to any contractor, subcontractor, laborer, materialman or
vendor to or for the performance of any labor or services or the furnishing of
any materials or other property
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for the construction, alteration, addition, repair or demolition of or to the
Leased Property, or (ii) giving Tenant any right, power or permission to
contract for or permit the performance of any labor or services or the
furnishing of any materials or other property in such fashion as would permit
the making of any claim against Landlord in respect thereof or to make any
agreement that may create, or in any way be the basis for, any right, title,
interest, lien, claim or other encumbrance upon the estate of Landlord in the
Leased Property.
(e) Tenant will, upon the expiration or prior termination of the
Term with respect to any Leased Property, vacate and surrender the same to
Landlord in the condition in which the same was originally received from
Landlord, except as repaired, rebuilt, restored, altered or added to as
permitted or required by the provisions of this Lease and except for ordinary
wear and tear (subject to the obligation of Tenant to maintain the Leased
Property in good order and repair during the Term). In addition, Tenant shall
not be permitted to remove any of Tenant's Personal Property from the Leased
Property unless such removal shall not damage the Leased Property in any
material respect.
9.2 Encroachments, Restrictions, etc. If any of the Leased Improvements
shall, at any time, encroach upon any property, street or right-of-way adjacent
to the Leased Property, or shall violate the agreements or conditions contained
in any lawful restrictive covenant or other agreement affecting the Leased
Property, or shall impair the rights of others under any easement or
right-of-way to which the Leased Property is subject, then promptly upon the
request of Landlord or at the behest of any person affected by any such
encroachment, violation or impairment, Tenant shall, at its expense, subject to
its right to contest the existence of any encroachment, violation or impairment
and in such case, in the event of any adverse final determination, either (i)
obtain valid and effective waivers or settlements of all claims, liabilities and
damages resulting from each such encroachment, violation or impairment, whether
the same shall affect Landlord or Tenant or (ii) make such changes in the Leased
Improvements, and take such other actions, as Tenant in good faith exercise of
its judgment deems reasonably practicable, to remove such encroachment, and to
end such violation or impairment, including, if necessary, the alteration of any
of the Leased Improvements, and in any event take all such actions as may be
necessary in order to be able to continue the operation of the Leased
Improvements for the Primary Intended Use substantially in the manner and to the
extent the Leased Improvements were operated prior to the assertion of such
violation or encroachment. Any such alteration shall be made in conformity with
the applicable requirements of Article VIII. Tenant's obligations under this
Section 9.2 shall be in addition to and shall in no way discharge or diminish
any obligation of any insurer under
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any policy of title or other insurance, and Tenant shall be entitled to a credit
for any sums recovered by Landlord under any such policy of title or other
insurance.
ARTICLE X
CASUALTY AND CONDEMNATION
10.1 Insurance. Tenant shall at all times keep the applicable Leased
Property, and all property located in or on the applicable Leased Property,
including Tenant's Personal Property, insured with the kinds and amounts of
insurance described below or with such other insurance as may be reasonably
requested by Landlord (taking into consideration any insurance requirements that
may be required in respect of any Landlord's Debt).
(a) Tenant, at its sole cost and expense, for the mutual benefit of
Tenant and Landlord, shall keep all of the Leased Property insured and
obtain and maintain policies of insurance insuring against loss or damage
by standard perils included within the classification "All Risks of
Physical Loss", which policy or policies shall cover (by endorsement or
otherwise) warehouse legal liability. Such insurance (i) shall be in an
aggregate amount equal to the then full replacement cost of the Leased
Property and the Equipment (without deduction for physical depreciation)
and (ii) shall have deductibles no greater than $100,000 (as escalated by
the CPI Increase) (with such higher deductibles for wind and earthquake
coverage as the applicable issuer may require). The policies of insurance
carried in accordance with this paragraph shall be paid in accordance with
the agreed upon payment schedule incorporated into such policies and shall
contain a "Replacement Cost Endorsement" with a waiver of depreciation.
(b) Tenant, at its sole cost and expense, for the mutual benefit of
Tenant and Landlord, shall also obtain and maintain the following policies
of insurance:
(i) Flood insurance with respect a Leased Property, if any
part of such Leased Property is located in an area identified by the
Federal Emergency Management Agency as an area federally designated
a "100 year flood plain" and (A) flood insurance is generally
available at reasonable premiums and in such amount as generally
required by institutional lenders for similar properties or (B) if
not so available from a
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private carrier, from the federal government at commercially
reasonable premiums to the extent available. In either case, the
flood insurance shall be in an amount at least equal to the
Termination Amount with respect to such Leased Property or the
maximum limit of coverage available with respect to such Leased
Property under said program, whichever is less;
(ii) Commercial general liability insurance, including broad
form property damage, blanket contractual and personal injuries
(including death resulting therefrom) coverages and containing
minimum limits per occurrence of $1,000,000 for any policy year. In
addition, at least $25,000,000 excess and/or umbrella liability
insurance shall be obtained, and at all times at least $10,000,000
excess and/or umbrella liability insurance shall be available (such
that, at all times, such coverage shall be maintained against which
no claim shall have been asserted) and maintained for any and all
claims, including legal liability imposed upon Tenant and related
court costs and attorneys' fees generally covered by such insurance
policies; provided that if there are one or more claims in
connection with a property other than the Leased Property that
results in the amount of excess and/or umbrella liability insurance
coverage to be less than $25,000,000, Tenant shall give notice to
Landlord that such coverage has so decreased and Tenant shall cause
such coverage to be increased to $25,000,000.
(iii) Rental loss and/or business interruption insurance in an
amount sufficient to avoid any co-insurance penalty and equal to the
greater of (A) the estimated Receipts from the operation of the
Leased Property (including (x) the total payable under the Subleases
and the Warehouse Agreements, and (y) the total amount of all other
amounts to be received by Tenant or third parties that are the legal
obligation of the Subtenants), less non-continuing Operating
Expenses (i.e., Operating Expenses which were incurred in connection
with the ownership, operation and/or maintenance of the Leased
Property prior to the insured event, but which are not incurred
during the period covered by the insurance required pursuant to this
Section 10.1(b)(iii)), for a period of up to the next succeeding
eighteen (18) months, or (B) the projected Operating Expenses
(including debt service) for the maintenance and operation of the
Leased Property for a period of up to the next succeeding eighteen
(18) months as the same may be reduced or increased from time to
time due to changes in such Operating Expenses. The amount of such
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insurance shall be increased from time to time as and when the rents
increase or the estimate of (or the actual) Receipts, as may be
applicable, increases or decreases to the extent rents or the
estimates of gross revenue decrease;
(iv) Insurance against loss or damage from (A) leakage of
sprinkler systems and (B) explosion of steam boilers, air
conditioning equipment, high pressure piping, machinery and
equipment, pressure vessels or similar apparatus now or hereafter
installed in any of the Improvements (without exclusion for
explosions) and insurance against loss of occupancy or use arising
from any breakdown, in such amounts as are generally available at
reasonable premiums and are generally required by institutional
lenders for properties comparable to the Leased Property;
(v) Worker's compensation insurance with respect to all
employees of Tenant, as and to the extent required by any
Governmental Authority or Legal Requirement;
(vi) During any period of repair or restoration costing in
excess of $5,000,000, builder's "all risk" insurance in an amount
equal to not less than the full insurable value of the related
Leased Property against such risks (including fire and extended
coverage and collapse of the Improve ments to agreed limits) as
Landlord may reasonably request, in form and substance reasonably
acceptable to Landlord;
(vii) Coverage to compensate for the cost of demolition and
the increased cost of construction for the Leased Property in an
amount satisfactory to Landlord, which amount shall not exceed
$10,000,000;
(viii) If required by Landlord's Lender, in the event any
Leased Property is located in a federal earthquake zone, earthquake
insurance with respect to such Leased Property in an amount equal to
probable maximum loss with respect to such Leased Property, with a
maximum deductible of five percent (5%) of the replacement cost of
such Leased Property; and
(ix) Such other insurance as may from time to time be
reasonably required by Landlord in order to protect its interests,
provided such insurance is generally available at commercially
reasonable premiums.
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(c) All policies of insurance (the "Policies") required pursuant to
Section 10.1 with respect to any Leased Property shall be issued by companies
licensed to do business in the state where such Leased Property is located.
Further, unless otherwise approved by Landlord in writing, the issuer(s) of the
Policies required under Section 10.1(a) for all risk coverage shall have a
claims paying ability rating of "AA" or better by Standard & Poor's and Moody's
or (unless objected to by Landlord's Lender) "A-X" or better by Best's, and (b)
Policies for all other coverage shall have a claims paying ability rating of "A"
or better by Standard & Poor's and Moody's or (unless objected to by Landlord's
Lender) "A-X" or better by Best's. The Policies (i) shall name Landlord and
Landlord's Lender (if any) and its successors and/or assigns, as their interest
may appear, as additional insureds or loss payees (except that in the case of
general liability insurance, Landlord and Landlord's Lender shall be named as
additional insureds and not a loss payee); (ii) shall contain, for the benefit
of Landlord's Lender, a Non-Contributory Standard Lender Clause and, except with
respect to general liability insurance, a Lender's Loss Payable Endorsement, or
their equivalents, naming Landlord's Lender as the person to which all payments
made by such insurance company shall be paid; (iii) shall include effective
waivers by the insurer of all claims for insurance premiums against all loss
payees, additional insureds and named insureds (other than Tenant) and all
rights of subrogation against any loss payee, additional insured or named
insured; (iv) if directed by Landlord, shall be assigned to Landlord's Lender;
(v) except as otherwise provided above, shall be subject to a deductible, if
any, not greater in any material respect, in proportion to the coverage
maintained, than the deductible for such coverage on the date hereof; (vi) shall
contain such provisions as Landlord deems reasonably necessary or desirable to
protect its interest (and that of Landlord's Lender, to the extent so requested
by Landlord on behalf of Landlord's Lender), including endorsements providing
that: none of Tenant, Landlord, Landlord's Lender or any other party shall be a
co-insurer under said Policies and that no modification that would result in
non-compliance with the provisions of this Section 10.1, cancellation,
termination or non-renewal of any of the Policies shall be effective until at
least thirty (30) days after receipt by each named insured, additional insured
and loss payee of written notice thereof or ten (10) days after receipt of such
notice with respect to nonpayment of premium; (vii) shall permit Landlord or
Landlord's Lender to pay the premiums and continue any insurance upon failure of
Tenant to pay premiums when due, upon the insolvency of Tenant or through
foreclosure or other transfer of title to the Leased Property (or any of them)
(it being understood that Tenant's rights to coverage under such policies may
not be assignable without the consent of the insurer); and (viii) shall provide
that the insurance shall not be impaired or invalidated by virtue of (A) any
act, failure to act, negligence of, or violation of declarations, warranties or
conditions contained in such policy by Tenant, Landlord,
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Landlord's Lender or any other named insured, additional insured or loss payee,
except for the willful misconduct of Landlord or Landlord's Lender knowingly in
violation of the conditions of such policy, (B) the occupation, use, operation
or maintenance of the Leased Property for purposes more hazardous than permitted
by the terms of the Policy, (C) any foreclosure or other proceeding or notice of
sale relating to the Leased Property or (D) any change in the possession of the
Leased Property without a change in the identity of the holder of actual title
thereto (provided that with respect to items (C) and (D), any notice
requirements of the applicable Policies are satisfied).
(d) Insurance Premiums; Certificates of Insurance.
(i) Tenant shall pay the premiums for such Policies (the "Insurance
Premiums") as the same become due and payable and shall furnish to
Landlord the receipts for the payment of the Insurance Premiums or other
evidence of such payment reasonably satisfactory to Landlord (provided
Tenant is not required to furnish such evidence of payment if such
Insurance Premiums are to be paid pursuant to the Cash Management
Procedures relating to any Landlord's Debt). Within thirty (30) days after
request by Landlord, Tenant shall obtain such increases in the amounts of
coverage required hereunder as may be reasonably requested by Landlord,
taking into consideration changes in liability laws, changes in prudent
customs and practices, and the like. In the event Tenant satisfies the
requirements under this Section 10.1 through the use of a Policy covering
properties in addition to the Leased Property, then, at Landlord's
request, Tenant shall provide to Landlord evidence satisfactory to it that
the Insurance Premiums for the Leased Property are separately allocated
under such Policy to the Leased Property and that payment of such
allocated amount shall maintain the effectiveness of such Policy as to the
Leased Property notwithstanding the failure of payment of any other
portion of premiums. If such allocation is required by the immediately
preceding sentence, but such allocation is not available, Landlord shall
have the right to increase any tax and insurance escrow account required
in connection with Landlord's Debt in an amount sufficient to purchase a
non-blanket Policy covering the Leased Property covered by such Policy
from insurance companies which qualify under this Lease.
(ii) Tenant shall deliver to Landlord on or prior to the Closing
Date certificates setting forth in reasonable detail the material terms
(including any applicable notice requirements) of all Policies from the
respective insurance companies (or their authorized agents) that issued
the Policies, including that such Policies may not be modified in a manner
that would result in such Policies not
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complying with the provisions of this Section 10.1, canceled, terminated
or not renewed without thirty (30) days' prior notice to Landlord, or ten
(10) days' notice with respect to nonpayment of premium. Tenant shall
deliver to Landlord, concurrently with each material change in any Policy,
a certificate with respect to such changed Policy certified by the
insurance company issuing that Policy, in substantially the same form and
containing substantially the same information as the certificates required
to be delivered by Tenant pursuant to the first sentence of this clause
(d)(ii) and stating that all premiums then due thereon have been paid to
the applicable insurers and that the same are in full force and effect (or
if such certificate and report shall not be obtainable by Tenant, Tenant
may deliver an Officer's Certificate to such effect in lieu thereof).
(e) Renewal and Replacement of Policies.
(i) Not less than four (4) Business Days prior to the expiration,
termination or cancellation of any Policy, Tenant shall renew such policy
or obtain a replacement policy or policies (or a binding commitment for
such replacement policy or policies), which shall be effective no later
than the date of the expiration, termination or cancellation of the
previous policy, and shall deliver to Landlord (and, if requested by
Landlord, to Landlord's Lender) a certificate in respect of such policy or
policies (A) containing the same information as the certificates required
to be delivered by Tenant pursuant to clause (d)(ii) above, or a copy of
the binding commitment for such policy or policies and (B) confirming that
such policy complies with all requirements hereof.
(ii) If Tenant does not furnish the certificates as required under
clause (e)(i), Landlord may procure, but shall not be obligated to
procure, such replacement policy or policies and pay the Insurance
Premiums therefor, and Tenant agrees to reimburse Landlord for the cost of
such Insurance Premiums promptly on demand.
(iii) Concurrently with the delivery of each replacement policy or a
binding commitment for the same pursuant to this clause (e), Tenant shall
deliver to Landlord a report from a reputable and experienced insurance
broker or from the insurer, setting forth the particulars as to all
insurance obtained by Tenant pursuant to this Section 10.1 and then in
effect and stating that all Insurance Premiums then due thereon have been
paid in full to the applicable insurers and that such insurance policies
are in full force and effect (or if such report shall not be available
after Tenant shall have used its reasonable efforts to provide the
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same, Tenant will deliver to Landlord an Officer's Certificate containing
the information to be provided in such report) and Tenant shall deliver to
Landlord an Officer's Certificate stating that such insurance otherwise
complies in all material respects with the requirements of this Section
10.1.
(f) Separate Insurance. Tenant will not take out separate insurance
concurrent in form or contributing in the event of loss with that required to be
maintained pursuant to this Section 10.1 unless such insurance complies with
clause (c) above.
(g) Tenant shall name any Person holding, servicing or administering
Landlord's Debt and reasonably designated by Landlord (including any trustee,
servicer or special servicer) as a loss payee or additional insured with respect
to any Policy under which Landlord's Lender is to be so named hereunder.
10.2 Casualty; Application of Proceeds.
(a) Right to Adjust.
(i) If any Leased Property is damaged or destroyed, in whole or in
part, by fire or other casualty (a "Casualty"), Tenant shall give prompt
written notice thereof to Landlord generally describing the nature and
extent of such Casualty. Subject to Section 10.2(b), following the
occurrence of a Casualty, Tenant, regardless of whether proceeds are
available, shall in a reasonably prompt manner proceed to restore, repair,
replace or rebuild the affected Leased Property to the extent practicable
to be of at least equal value and of substantially the same character and
quality as prior to the Casualty, all in accordance with the terms hereof
applicable to Alterations.
(ii) Subject to clause (v) below, in the event of a Casualty that
does not exceed $1,000,000, Tenant may settle and adjust such claim;
provided that such adjustment is carried out in a competent and timely
manner.
(iii) Subject to clause (v) below, in the event a Casualty shall
exceed $1,000,000, Tenant may settle and adjust such claim only with the
consent of Landlord (and, if required under the terms of Landlord's Loan
Documents, Landlord's Lender), which consent shall not be unreasonably
withheld or delayed, and Landlord (and Landlord's Lender) shall have the
opportunity to participate, at Tenant's cost, in any such adjustments.
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(iv) The proceeds of any Policy shall be due and payable solely to a
Depositary.
(v) Notwithstanding the terms of clauses (ii) and (iii) above,
Landlord shall have the sole discretion to adjust any claim with respect
to a Casualty and to collect all Proceeds if an Event of Default shall
have occurred and is continuing.
The provisions of this Section 10.2(a) are subject to the terms of any lease
that would be considered a "Superior Interest" (as defined herein) to the
contrary.
(b) Tenant's Right to Proceeds for Certain Casualty. In the event either
of (i) a Casualty that involves a loss of less than thirty percent (30%) of the
Termination Amount with respect to the affected Leased Property or (ii) a
Condemnation where the loss is in an aggregate amount less than twenty percent
(20%) of the Termination Amount with respect to the affected Leased Property,
Tenant be entitled to apply the Proceeds (after reimbursement of any expenses
incurred by Landlord and Landlord's Lender) to reimburse Tenant for the cost of
restoring, repairing, replacing or rebuilding the affected Leased Property (the
"Restoration"), in the manner required hereby, provided and on the condition
that, no Event of Default shall have occurred and be then continuing and, in the
reasonable judgment of Landlord:
(i) the Restoration can be completed by the earliest to occur
of:
(A) the 365th day following the receipt of the Proceeds,
or, with Landlord's written consent, such longer period as may
reasonably be required,
(B) the scheduled maturity date of Landlord's Debt, and
(C) with respect to a Casualty, the expiration of the
payment period on the rental-loss insurance or business interruption
insurance coverage in respect of such Casualty, and
(ii) after receiving reasonably satisfactory evidence to such
effect, during the period of the Restoration, the sum of (A) income
derived from the Leased Properties (taken as a whole), plus (B) proceeds
of rental-loss insurance or business interruption insurance, if any,
payable together with such other monies as Tenant may irrevocably make
available for the Restoration, will equal or exceed the sum required for
Tenant to pay the Minimum Rent, Taxes, Other Charges and
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all other Operating Expenses and required capital expenditures for all of
the Leased Properties (taken as a whole).
Notwithstanding the foregoing, if any of the conditions set forth in the proviso
in this clause (b) is not satisfied, then, notwithstanding anything herein to
the contrary, unless Landlord shall otherwise elect, at its sole option, (w) the
Proceeds shall be paid to Landlord up to the Termination Amount, and the balance
thereof, after payment of all Landlord's and Landlord's Lender's reasonable
expenses in connection therewith, shall be paid to Tenant, (x) this Lease shall
terminate in respect of the affected Leased Property (except for such terms as
are expressly intended to survive the termination of this Lease), (y) the
Minimum Rent shall be reduced by the portion thereof allocable thereto, as
determined by reference to Exhibit 3.1(a) and (z) the percentages set forth on
Exhibit 3.1(a) shall be adjusted to reflect the portion of Minimum Rent
allocated to each Leased Property remaining subject to the terms of this Lease.
Notwithstanding any of the foregoing, in the event of a Casualty or Condemnation
where an Operating Agreement, a Warehouse Agreement with respect to all or
substantially all of a Leased Property, or a Sublease with a Major Subtenant
requires that Tenant restore the affected Leased Property or any affected
portion thereof, Landlord shall permit the application of the Proceeds (after
reimbursement of any expenses incurred by Landlord and Landlord's Lender) to
reimburse Tenant for the cost of Restoration provided no Event of Default shall
have occurred and then be continuing.
(c) Termination of Lease in Certain Circumstances. In any case in which
Tenant is not entitled to the Proceeds for Restoration pursuant to Section
10.2(b), then:
(i) if Landlord's Lender does not permit, pursuant to
Landlord's Loan Documents, the application of the Proceeds to the
Restoration (which Landlord's Lender shall notify Landlord and Tenant
within a reasonable time after the Casualty or Condemnation, and in no
event later than the 40th day after the receipt of Proceeds), then (x)
Landlord shall be entitled to the Proceeds up to the Termination Amount
(and Tenant shall be entitled to any balance, after payment of all
Landlord's and Landlord's Lender's reasonable expenses in connection
therewith), (y) this Lease shall terminate as to the affected Leased
Property (except with respect to those matters that are expressly intended
to survive the expiration or earlier termination of this Lease) and (z)
the Minimum Rent shall be reduced by the portion thereof allocable
thereto, as determined by reference to Exhibit 3.1(a), or
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(ii) if Landlord's Lender is required or elects under the
terms of the Landlord's Loan Documents to permit the application of
Proceeds to Restoration, then the Proceeds shall be so applied provided
that Landlord is reasonably satisfied that, upon the completion of the
Restoration, Tenant shall be able to satisfy its obligations hereunder in
respect of the affected Leased Property (assuming for these purposes a pro
rata Minimum Rent obligation.
(d) Manner of Reimbursement of Restoration Expenses. If Tenant is entitled
pursuant to Section 10.2(b) or (c) hereof to reimbursement of Restoration costs
from Proceeds, such Proceeds shall be disbursed on a monthly basis upon the
Depositary being furnished with (i) such architect's certificates, Lien waivers,
contractor's sworn statements, title insurance endorsements, bonds, plats of
survey and such other evidences of cost, payment and performance as the
Depositary may reasonably require and approve, and (ii) all plans and
specifications for such Restoration, such plans and specifications to be
approved by Landlord prior to commencement of any work (such approval not to be
unreasonably withheld or delayed). In addition, no payment made prior to the
Final Completion of the Restoration shall exceed ninety-five percent (95%) of
the value of the work performed from time to time; funds other than Proceeds
shall be disbursed prior to disbursement of such Proceeds; and at all times, the
undisbursed balance of such Proceeds remaining in the hands of the Depositary,
together with funds deposited for that purpose or irrevocably committed to the
satisfaction of Landlord by or on behalf of Tenant for that purpose, shall be at
least sufficient in the reasonable judgment of Landlord to pay for the cost of
completion of the Restoration, free and clear of all Liens or claims for Lien.
Prior to any disbursement, Landlord shall have received evidence reasonably
satisfactory to it of the estimated cost of completion of the Restoration (such
estimate to be made by Tenant's architect or contractor and approved by Landlord
in its reasonable discretion), and Tenant shall have deposited with the
Depositary Eligible Collateral in an amount equal to the excess (if any) of such
estimated cost of completion over the net Proceeds. Any surplus which may remain
out of Proceeds received pursuant to a Casualty shall be paid to Tenant after
payment of such costs of Restoration. Any surplus which may remain out of
Proceeds received pursuant to a Condemnation after payment of such costs of
Restoration shall be paid over to and belong to Landlord.
10.3 Condemnation.
(a) Tenant shall promptly give Landlord written notice of the actual or
threatened commencement of any condemnation or eminent domain proceeding
affecting any Leased Property (a "Condemnation") and shall deliver to Landlord
copies of any and all papers served in connection with such Condemnation.
Following the occurrence of a
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Condemnation, Tenant, regardless of whether Proceeds are available, shall
promptly proceed to restore, repair, replace or rebuild the same to the extent
practicable to be of at least equal value and of substantially the same
character as prior to such Condemnation, all to be effected in accordance with
the terms hereof applicable to Alterations.
(b) Landlord is hereby irrevocably appointed as Tenant's attorney-in-fact,
coupled with an interest, with exclusive power to collect, receive and retain
any Proceeds in respect of a Condemnation and to make any compromise or
settlement in connection with such Condemnation, subject to the provisions of
this Section, and such power shall include the power to substitute Landlord's
Lender in Landlord's discretion. Provided no Event of Default has occurred and
is continuing, (x) in the event of a Condemnation where the loss does not exceed
$1,000,000, Tenant may settle and compromise such Proceeds; provided that the
same is effected in a competent and timely manner, and (y) in the event a
Condemnation, where the loss exceeds $1,000,000, Tenant may settle and
compromise the Proceeds only with the consent of Landlord (and, if required
under the terms of Landlord's Loan Documents, Landlord's Lender), which consent
shall not be unreasonably withheld or delayed, and Landlord shall have the
opportunity to participate, at Tenant's cost, in any litigation and settlement
discussions in respect thereof. Tenant shall cause any Proceeds that are payable
to Tenant to be paid directly to a Depositary to be held and applied in
accordance with the terms hereof.
(c) The Rent shall be subject to adjustment in the manner provided for in
Section 4.2.
ARTICLE XI
ACCOUNTS AND RESERVES
11.1 Cash Management Procedures. Tenant hereby agrees to cooperate with
Landlord and to execute any and all instruments reasonably requested by Landlord
(including, if necessary, the execution of an amendment to this Lease), in the
establishment and maintenance of escrow and/or reserve accounts and cash
management procedures reasonably requested by any Landlord's Lender in
connection with Landlord's Loan Documents (the "Cash Management Procedures");
provided, however, that the Cash Management Procedures shall be no more onerous
than the "Cash Management Procedures" relating to that certain Master Lease
Agreement, dated as of April 22, 1998, between Americold Real Estate, L.P., as
landlord, and Americold Corporation, as tenant.
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ARTICLE XII
12.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an "Event of Default" hereunder:
(a) if Tenant shall fail to pay the Minimum Rent when due and
payable hereunder, or
(b) if Tenant shall fail to pay when due any amount (other than
Minimum Rent) when due and payable and such default shall continue for ten
(10) days after notice thereof to Tenant, or
(c) if Tenant shall fail to observe or perform any term, covenant or
condition of this Lease not specifically provided for in this Section 12.1
and such failure is not cured within a period of thirty (30) days after
receipt of notice from Landlord, unless such failure cannot with due
diligence be cured within a period of thirty (30) days, in which case such
period of time shall be extended to such period of time as may be
necessary to cure such default with all due diligence, or
(d) if Tenant shall admit in writing its inability to pay its debts
generally as they become due; file a petition in bankruptcy or a petition
to take advantage of any insolvency act; make an assignment for the
benefit of its creditors; consent to the appointment of a receiver of
itself or of the whole or any substantial part of its property; or file a
petition or answer seeking reorganization or arrangement under the Federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any State thereof, or
(e) any petition shall be filed by or against Tenant under Federal
bankruptcy laws, or any other proceeding shall be instituted by or against
Tenant or such subsidiary seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, reorganization, arrangement, adjustment
or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, custodian
or other similar official for Tenant, or for any substantial part of the
property of Tenant, and such proceeding is not dismissed within ninety
(90) days after institution thereof, or Tenant shall take any action to
authorize or effect any of the actions set forth above in this paragraph
(e), or
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(f) if the estate or interest of Tenant in the Leased Property or
any part thereof shall be levied upon or attached in any proceeding any
the same shall not be vacated or discharged within the later of ninety
(90) days after commencement thereof or thirty (30) days after receipt by
Tenant of notice thereof from Landlord, (unless Tenant shall be contesting
such lien or attachment in good faith in accordance with the terms of this
Lease), or
(g) if an event of default under any of the Other Leases shall have
occurred and be continuing,
then, and in any such event, Landlord may terminate this Lease by giving not
less than ten (10) days' notice of such termination and upon the expiration of
the time fixed in such notice, if any, and the failure of the applicable Event
of Default to be cured within such ten-day period, the Term shall terminate and
all rights of Tenant under this Lease shall cease. Landlord shall have all
rights at law and in equity available to Landlord as a result of Tenant's breach
of this Lease.
Tenant shall, to the maximum extent permitted by law, pay as Additional Charges
all Litigation Costs as a result of any Event of Default hereunder.
12.2 Certain Remedies. Landlord shall have the right to terminate this
Lease, and otherwise exercise remedies, at any time and from time to time, with
respect to one or more, or all, of the Leased Properties, and the termination of
this Lease or other exercise of remedies with respect to one or more Leased
Properties shall in no way constitute a waiver on the part of Landlord to
terminate this Lease on account of such Event of Default, or otherwise exercise
remedies, at any time and from time to time, in one or more other instances,
with respect to the balance of the Leased Properties.
12.3 Damages. Neither (a) the termination of this Lease pursuant to
Section 12.1 with respect to any or all of the Leased Property, (b) the
repossession of the applicable Leased Property or any portion thereof, (c) the
failure of Landlord, notwithstanding reasonable good faith efforts to relet the
applicable Leased Property or any portion thereof, (d) the reletting of all or
any portion thereof, nor (e) the failure of Landlord to collect or receive any
rentals due upon any such reletting, shall relieve Tenant of its liability and
obligations hereunder, all of which shall survive any such termination,
repossession or reletting. In the event of any such termination, Tenant shall
forthwith pay to Landlord all Rent due and payable with respect to the Leased
Property to and including the date of such termination. Thereafter, Tenant,
until the end of what would have been the Term in the absence of such
termination, and whether or not the
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applicable Leased Property or any portion thereof shall have been re-let, shall
be liable to Landlord for, and shall pay to Landlord, as current damages, the
Rent and other charges which would be payable hereunder for the remainder of the
Term had such termination not occurred, less the net proceeds, if any, of any
reletting of the applicable Leased Property, after deducting all expenses in
connection with such re-letting, including all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, advertising costs, expenses of
employees, alteration costs and expenses of preparation for such reletting.
Tenant shall pay such current damages to Landlord monthly on the days on which
the Minimum Rent would have been payable hereunder if this Lease had not been
terminated.
At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages and in lieu of
all such current damages beyond the date of such termination, at Landlord's
election, Tenant shall pay to Landlord either, at Landlord's election, (a) an
amount equal to the excess, if any, of the Rent and other charges which would be
payable hereunder from the date of such termination (assuming that, for the
purposes of this paragraph, annual payments by Tenant on account of Taxes and
Other Charges would be the same as payments required for the immediately
preceding twelve calendar months, or if less than twelve calendar months have
expired since the Commencement Date, the payments required for such lesser
period projected to an annual amount) for what would be the then unexpired term
of this Lease if the same remained in effect (with respect to the applicable
Leased Property), over the Fair Market Rental for the same period, or (b) an
amount equal to the lesser of (i) the Rent and other charges that would have
been payable for the balance of the Term had it not been terminated, or (ii) the
aggregate of the Minimum Rent, Additional Charges and other charges accrued in
the twelve (12) months ended next prior to such termination (without reduction
for any free rent or other concession or abatement). In the event this Lease is
so terminated prior the expiration of the first full year of the Term, the
liquidated damages which Landlord may elect to recover pursuant to this Section
shall be calculated as if such termination had occurred on the first anniversary
of the Commencement Date. Nothing contained herein shall, however, limit or
prejudice the right of Landlord to prove and obtain in proceedings for
bankruptcy or insolvency an amount equal to the maximum allowed by any statute
or rule of law in effect at the time when, and governing the proceedings in
which, the damages are to be proved, whether or not the amount be greater than,
equal to, or less than the amount of the loss or damages referred to above.
In case of any Event of Default, re-entry, expiration and dispossession by
summary proceedings or otherwise, Landlord may (a) relet the applicable Leased
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Property or any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may, at Landlord's option, be equal to,
less than or exceed the period which would otherwise have constituted the
balance of the Term and may grant concessions or free rent to the extent that
Landlord considers advisable and necessary to relet the same, and (b) make such
alterations, repairs and decorations in the applicable Leased Property or any
portion thereof as Landlord, in its sole judgment, considers advisable and
necessary for the purpose of reletting the applicable Leased Property; and the
making of such alterations, repairs and decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Landlord
shall in no event be liable in any way whatsoever for the failure to relet the
applicable Leased Property, or, in the event that the applicable Leased Property
is relet, for failure to collect the rent under such reletting. To the fullest
extent permitted by law, Tenant hereby expressly waives any and all rights of
redemption granted under any present or future laws in the event of Tenant's
being evicted or dispossessed, or in the event of Landlord's obtaining
possession of the applicable Leased Property, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease.
12.4 Waiver. If this Lease is terminated pursuant to Section 12.1, Tenant
waives, to the extent permitted by applicable law, (a) any right of redemption,
re-entry or repossession, (b) any right to a trial by jury in the event of
summary proceedings to enforce the remedies set forth in this Article XII, and
(c) the benefit of any laws now or hereafter in force exempting property from
liability for rent or for debt (provided nothing herein shall be construed to
limit Tenant's liability hereunder, which is intended to be fully recourse to
Tenant, to its interest in the Leased Property).
12.5 Application of Funds. Any payments received by Landlord under any of
the provisions of this Lease during the existence or continuance of any Event of
Default (and such payment is made to Landlord rather than Tenant due to the
existence of an Event of Default) shall be applied to Tenant's obligations in
the order which Landlord may determine or as may be prescribed by the laws of
the State where the applicable Leased Property is located.
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ARTICLE XIII
13.1 Landlord's Right to Cure Tenant's Default. If an Event of Default
shall have occurred and be continuing, Landlord, without waiving or releasing
any obligation or Event of Default, may (but shall be under no obligation to) at
any time thereafter make such payment or perform such act for the account and at
the expense of Tenant, and may, to the extent permitted by law, enter upon the
applicable Leased Property or any portion thereof for such purpose and take all
such action thereon as, in Landlord's opinion, may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of Tenant. All reasonable
sums so paid by Landlord and all costs and expenses (including attorneys' fees
and expenses, in each a case, to the extent permitted by law) so incurred,
together with interest thereon (to the extent permitted by law) at the Overdue
Rate from the date on which such sums or expenses are paid or incurred by
Landlord, shall be paid by Tenant to Landlord on demand. The obligations of
Tenant and rights of Landlord contained in this Article shall survive the
expiration or earlier termination of this Lease.
ARTICLE XIV
14.1 Holding Over. If Tenant shall for any reason remain in possession of
the applicable Leased Property after the expiration of the Term or earlier
termination of the Term, such possession shall be as a month-to-month tenant
during which time Tenant shall pay as rental each month, one and one-half times
the aggregate of (i) one-twelfth of the aggregate Minimum Rent payable with
respect to the last Lease Year of the Term; (ii) all Additional Charges accruing
during the month and (iii) all other sums, if any, payable by Tenant pursuant to
the provisions of this Lease with respect to the applicable Leased Property.
During such period of month-to-month tenancy, Tenant shall be obligated to
perform and observe all of the terms, covenants and conditions of this Lease,
but shall have no rights hereunder other than the right, to the extent given by
law to month-to-month tenancies to continue its occupancy and use of the
applicable Leased Property. Nothing contained herein shall constitute the
consent, express or implied, of Landlord to the holding over of Tenant after the
expiration or earlier termination of this Lease.
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ARTICLE XV
SUBORDINATION
15.1 Subordination and Nondisturbance. This Lease and all rights of Tenant
hereunder are subject and subordinate to the Lien affecting the Leased
Properties created pursuant to Lender's Loan Documents, whether now or hereafter
existing, or the interest of any landlord under a lease senior in title to this
Lease, whether now or hereafter existing (all such Liens and interests,
collectively, the "Superior Interests"), and to all renewals, modifications,
consolidations, replacements and extensions of Superior Interests, provided that
the holder of such Superior Interest shall have executed and delivered to Tenant
a "non-disturbance" agreement in favor of Tenant substantially on the same terms
and conditions as are contained in the form attached hereto as Exhibit 15.1.
Subject to the foregoing proviso, this Section shall be self-operative and no
further instrument of subordination shall be required, but in confirmation of
such subordination, Tenant agrees to execute and deliver promptly any
commercially reasonable form of instrument (in recordable form, if requested)
that Landlord or the holder of any Superior Interest (each, a "Superior Party")
may request to evidence such subordination.
15.2 Attornment. If the interests of Landlord under this Lease are
transferred by reason of, or assigned in lieu of, foreclosure or other
proceedings for enforcement of any such Superior Interest, then Tenant shall, at
the option of such purchaser, assignee or any Superior Party, as the case may
be, (x) attorn to such party and perform for its benefit all the terms,
covenants and conditions of this Lease on Tenant's part to be performed with the
same force and effect as if such party were the Landlord originally named in
this Lease, or (y) enter into a new lease with such party, as Landlord, for the
remaining Term and otherwise on the same terms and conditions of this Lease
except that such successor Landlord shall not be (i) liable for any previous
act, omission or negligence of Landlord under this Lease; (ii) subject to any
counterclaim, defense or offset which theretofore shall have accrued to Tenant
against Landlord; (iii) bound by any previous modification or amendment of this
Lease or by any previous prepayment of more than one month's rent in advance of
its due date, unless such modification, amendment or prepayment shall have been
approved in writing by the Superior Party through or by reason of which such
successor Landlord shall have succeeded to the rights of Landlord under this
Lease; or (iv) liable for any security (if any) deposited pursuant to this Lease
unless such security has actually been delivered to such successor Landlord.
Nothing contained in this Section shall be construed to impair any right
otherwise exercisable by any such owner, holder or Tenant.
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15.3 Notice of Default to Landlord's Lender. In the event of any act or
omission by Landlord which would give Tenant the right, either immediately or
after the lapse of a period of time, to terminate this Lease, or to claim a
partial or total eviction, Tenant will not exercise any such right (A) until it
has given written notice of such act or omission to Landlord's Lender, and (B)
until a reasonable period of time (not less than thirty (30) days) for remedying
such act or omission shall have elapsed following giving of such notice and
following the time when Lender shall have become entitled under the Landlord's
Loan Documents to remedy the same, provided Lender, with reasonable diligence,
shall (i) have pursued such remedies as are available to it under Landlord's
Loan Documents so as to be able to remedy the act or omission, and (ii)
thereafter shall have commenced and continued to remedy such act or omission or
cause the same to be remedied. Tenant's agreement herein shall not apply to
those situations specifically set forth herein wherein Tenant has an express
option to cancel and terminate this Lease.
15.4 Modifications to Secure Financing. If any Superior Party or
prospective Superior Party shall request modifications of this Lease as a
condition to the provision, continuance or renewal of any such financing, Tenant
will not unreasonably withhold, delay or defer its consent thereto, provided
that (i) either such modifications do not materially increase the obligations of
Tenant hereunder or materially adversely affect Tenant's rights under this Lease
or (ii) if such modifications would materially increase the obligations of
Tenant hereunder or materially adversely affect Tenant's rights under this
Lease, then Landlord shall compensate Tenant for the same. Disputes as between
Landlord and Tenant regarding whether a proposed modification would materially
increase the obligations of Tenant hereunder or materially adversely affect
Tenant's rights under this Lease, and the compensation that would be payable to
Tenant as a result thereof shall be determined by arbitration in accordance with
the terms of Schedule 15.4 hereto.
15.5 Delivery of Notices to Landlord's Lender. Subsequent to the receipt
by Tenant of Notice from Landlord as to the identity and address of any Superior
Party (which Notice shall be accompanied by a copy of the instrument creating
such Superior Interest), no Notice from Tenant to Landlord shall be effective
unless and until a duplicate original of such Notice shall be given to such
Superior Party at the address set forth in the above described Notice. The
curing of any of Landlord's defaults by such Superior Party shall be treated as
performance by Landlord.
15.6 Right of Landlord's Lender to Enforce Lease. To the extent permitted
under the Landlord's Loan Documents, Landlord's Lender may exercise the
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rights of Landlord hereunder, including the right on the part of Landlord to
obtain insurance in the circumstances set forth in Section 10.1(e)(ii) hereof.
15.7 Exercise of Landlord's Discretion. In any instance hereunder in which
Landlord must be reasonable in making a request or granting or withholding an
approval or consent, Tenant acknowledges and agrees that Landlord may take into
account the reasonable objections of Landlord's Lender to the extent Landlord is
required to take such objections into account under Landlord's Loan Documents.
In any instance hereunder in which Landlord may make a request or grant or
withhold an approval in its discretion, Landlord may take into account the views
of Landlord's Lender to the extent Landlord is required to take such views into
account under Landlord's Loan Documents.
ARTICLE XVI
16.1 Indemnification. Notwithstanding the existence of any insurance
required to be provided hereunder, and without regard to the policy limits of
any such insurance, Tenant will protect, indemnify, save harmless and defend
Landlord and Landlord's Lender and their respective partners, shareholders,
officers, directors and employees (each, an "Indemnitee") from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and reasonable expenses (including Litigation Costs), to the maximum extent
permitted by law, imposed upon or incurred by or asserted against such
Indemnitee by reason of: (a) any accident, injury to or death of persons or loss
of or damage to property occurring on or about the Leased Property or adjoining
sidewalks, including any claims made by employees at the Leased Property, (b)
any use, misuse, non-use, condition, maintenance or repair by Tenant or anyone
claiming by, through or under Tenant, including agents, contractors, invitees or
visitors of the applicable Leased Property or Tenant's Personal Property, (c)
any Taxes or Other Charges, (d) any failure on the part of Tenant or anyone
claiming by, through or under Tenant to perform or comply with any of the terms
of this Lease, (e) any failure by Tenant to perform its obligations under any
Sublease or Warehouse Agreement and any claims made thereunder, (f) any contest
of any Legal Requirement or Insurance Requirement, regardless whether the same
is conducted in accordance with the terms hereof. Any amounts which become
payable by Tenant under this Section shall be paid within ten (10) days after
liability therefor on the part of Tenant is determined by litigation or
otherwise, and if not timely paid, shall bear interest (to the extent permitted
by law) at the Overdue Rate from the date of such determination to the date of
payment. Tenant, at its expense, shall contest, resist and defend any such
claim, action or proceeding asserted or
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instituted against Indemnitee or may compromise or otherwise dispose of the same
as Tenant sees fit. Nothing herein shall be construed as indemnifying an
Indemnitee against its own grossly negligent acts or omissions or willful
misconduct. If at any time an Indemnitee shall have notice of a claim, such
Indemnitee shall give reasonably prompt written notice of such claim to Tenant;
provided that (i) such Indemnitee shall have no liability for a failure to give
notice of any claim of which Tenant has otherwise been notified or has knowledge
and (ii) the failure of such Indemnitee to give such a notice to Tenant shall
not limit the rights of such Indemnitee or the obligations of Tenant with
respect to such claim except to the extent that Tenant incurs actual expenses or
suffers actual monetary loss as a result of such failure. Tenant shall have the
right to control the defense or settlement of any Claim, provided that (A)
Tenant shall first confirm in writing to such Indemnitee that such claim is
within the scope of this indemnity and that Tenant shall pay any and all amounts
required to be paid in respect of such claim, (B) if the compromise or
settlement of any such claim shall not result in the complete release of such
Indemnitee from the claim so compromised or settled, the compromise or
settlement shall require the prior written approval of such Indemnitee and (C)
no such compromise or settlement shall include any admission of wrongdoing on
the part of such Indemnitee. An Indemnitee shall have the right to approve
counsel engaged to defend such claim and, at its election and sole cost and
expense, shall have the right, but not the obligation, to participate in the
defense of any claim. Tenant's liability under this Article with respect to
matters arising or accruing during the Term hereof shall survive any termination
of this Lease.
The parties hereto agree that this Article XVI shall not apply to those matters
specifically covered by the provisions of Article XXVI hereof.
ARTICLE XVII
17.1 No Waiver. No failure by Landlord or Tenant to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial payment
of Rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of any such term. To the extent permitted by law, no waiver
of any breach shall affect or alter this Lease, which shall continue in full
force and effect with respect to any other then existing or subsequent breach.
ARTICLE XVIII
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18.1 Remedies Cumulative. Except as otherwise expressly provided herein,
to the extent permitted by law, each legal, equitable or contractual right,
power and remedy of Landlord or Tenant now or hereafter provided either in this
Lease or by statute or otherwise shall be cumulative and concurrent and shall be
in addition to every other right, power and remedy and the exercise or beginning
of the exercise by Landlord or Tenant or any one or more of such rights, powers
and remedies shall not preclude the simultaneous or subsequent exercise by
Landlord or Tenant of any or all of such other rights, powers and remedies.
ARTICLE XIX
19.1 Acceptance of Surrender. No surrender to Landlord of this Lease or of
any Leased Property, or of any interest therein, shall be valid or effective
unless agreed to and accepted in writing by Landlord and Landlord's Lender (if
any) and no act by Landlord or any representative or agent of Landlord, other
than such a written acceptance by Landlord and Landlord's Lender (if any), shall
constitute an acceptance of any such surrender.
ARTICLE XX
20.1 No Merger of Title. There shall be no merger of this Lease or of the
leasehold estate created hereby by reason of the fact that the same Person may
acquire, own or hold, directly or indirectly, (a) this Lease or the leasehold
estate created thereby or any interest herein or in such leasehold estate and
(b) the fee estate in the applicable Leased Property.
ARTICLE XXI
21.1 Conveyance by Landlord. If Landlord or any successor owner of the
applicable Leased Property shall convey such Leased Property in accordance with
the terms hereof other than as security for a debt, and the grantee or
transferee of the Leased Property shall expressly assume all obligations of
Landlord hereunder arising or accruing from and after the date of such
conveyance or transfer, Landlord or such successor owner, as the case may be,
shall thereupon be released from all future liabilities and obligations of
Landlord under this Lease arising or accruing from and after the date of such
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conveyance or other transfer as to the Leased Property and all such future
liabilities and obligations shall thereupon be binding upon the new owner.
ARTICLE XXII
22.1 Quiet Enjoyment. So long as Tenant shall pay all Rent as the same
becomes due and no Event of Default shall have occurred and be continuing,
Tenant shall peaceably and quietly have, hold and enjoy the Leased Property for
the Term hereof, free of any claim or other action by Landlord or anyone
claiming by, through or under Landlord, but subject to all liens and
encumbrances of record as of the date hereof or otherwise permitted to be
created by Landlord hereunder, liens as to the obligations of Landlord that are
either not yet due or which are being contested in good faith and by proper
proceedings, and liens hereafter consented to by Tenant. No failure by Landlord
to comply with the foregoing covenant shall give Tenant any right to cancel or
terminate this Lease or ▇▇▇▇▇, reduce or make a deduction from or offset against
the Rent or any other sum payable under this Lease, or to fail to perform any
other obligation of Tenant hereunder or thereunder. Notwithstanding the
foregoing, Tenant shall have the right, by separate and independent action to
pursue any claim it may have against Landlord as a result of a breach by
Landlord of the covenant of quiet enjoyment contained in this Section.
ARTICLE XXIII
23.1 Notices. All notices, demands, requests, consents, approvals and
other communications required or permitted to be given hereunder (collectively,
"Notices" or "notices") shall be in writing and delivered by hand or mailed (by
registered or certified mail, return receipt requested or reputable nationally
recognized overnight courier service and postage prepaid), addressed to the
respective parties, as follows:
(a) if to Tenant:
AmeriCold Logistics, LLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
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(b) if to Landlord:
Americold Corporation
c/o Vornado Realty Trust
Park ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
(c) if required pursuant to Section 15.5 hereof, to Landlord's
Lender, in accordance with the terms of said Section.
or to such other address as either party may hereunder designate, and shall be
effective upon receipt.
ARTICLE XXIV
24.1 Appraisers. In the event that it becomes necessary to determine the
Fair Market Value or Fair Market Rental of any property for any purpose of this
Lease, and the parties cannot agree amongst themselves on such value within
twenty (20) days after the first request made by one of the parties to do so,
then either party may notify the other of a person selected to act as appraiser
on its behalf. Within fifteen (15) days after receipt of any such notice, the
other party shall by notice to the first party appoint a second person as
appraiser on its behalf. The appraisers thus appointed, each of whom must be a
member of The Appraisal Institute/American Institute of Real Estate Appraisers
(or any successor organization thereto), shall, within 45 days after the date of
the notice appointing the first appraiser, proceed to appraise the applicable
Leased Property to determine the Fair Market Value or Fair Market Rental thereof
as of the relevant date; provided that if one appraiser shall have been so
appointed, or if two appraisers shall have been so appointed but only one such
appraiser shall have made such determination within 50 days after the making of
the initial appointment, then the determination of such appraiser shall be final
and binding upon the parties. If two appraisers shall have been appointed and
shall have made their determinations within the respective requisite periods set
forth above and if the difference between the amounts so determined shall not
exceed ten percent (10%) of the lesser of such amounts, then the Fair Market
Value or Fair Market Rental shall be an amount equal to 50% of the sum of the
amounts so determined. If the difference between the amounts so determined shall
exceed ten percent (10%) of the lesser of such amounts, then such two appraisers
shall have 20 days to appoint a third appraiser, but if such appraisers fail to
do so, then either party may
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request the American Arbitration Association or any successor organization
thereto to appoint an appraiser within 20 days of such request, and both parties
shall be bound by any appointment so made within such 20 day period. If no such
appraiser shall have been appointed within such 20 days or within 90 days of the
original request for a determination of Fair Market Value or Fair Market Rental,
whichever is earlier, either Landlord or Tenant may apply to any court having
jurisdiction to have such appointment made by such court. Any appraiser
appointed by the original appraisers, by the American Arbitration Association or
by such court shall be instructed to determine the Fair Market Value or Fair
Market Rental within 30 days after appointment of such Appraiser. The
determination of the appraiser which differs most in terms of dollar amount from
the determination of the other two appraisers shall be excluded, and 50% of the
sum of the remaining two determinations shall be final and binding upon Landlord
and Tenant as the Fair Market Value or Fair Market Rental for such interest.
This provision for determination by appraisal shall be specifically enforceable
to the extent such remedy is available under applicable law, and any
determination hereunder shall be final and binding upon the parties except as
otherwise provided by applicable law. Landlord and Tenant shall each pay the
fees and expenses of the appraiser appointed by it and their own legal fees, and
each shall pay one-half of the fees and expenses of the third appraiser and
one-half of all other cost and expenses incurred in connection with each
appraisal.
ARTICLE XXV
25.1 General REIT Provisions.
25.1.1 REIT Requirements. Tenant understands that Landlord or an
Affiliate of Landlord intends to elect to qualify as a real estate investment
trust ("REIT"). Accordingly, unless otherwise notified by Landlord, the
following requirements (the "REIT Requirements") must be satisfied:
(i) The average of the adjusted tax bases of Landlord's personal
property leased to Tenant under a lease at the beginning and end of a
calendar year cannot exceed 15% of the average of the aggregate adjusted
tax bases of all of Landlord's property that is leased to Tenant under
such lease at the beginning and end of such calendar year.
(ii) Tenant cannot sublet the property leased to it by Landlord, or
enter into any other arrangement, if such sublet or other arrangement
would cause all or
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a portion of the amounts paid by Tenant to Landlord hereunder to fail to
qualify as "rents from real property" within the meaning of Section 856(d)
of the Code.
(iii) Tenant cannot sublease the property leased to it by Landlord
to, or enter into any similar arrangement with, any person in which
Landlord owns, directly or indirectly, a 10% or more interest, within the
meaning of Section 856(d)(2)(B) of the Code.
(iv) Landlord cannot own, directly or indirectly, a 10% or more
interest in Tenant, within the meaning of Section 856(d)(2)(B) of the
Code.
25.1.2 Satisfaction of REIT Requirements. Tenant agrees, and agrees
to use reasonable efforts to cause its Affiliates, to permit the REIT
Requirements to be satisfied. Tenant agrees, and agrees to use reasonable
efforts to cause its Affiliates, to cooperate in good faith with Landlord to
ensure that the REIT Requirements are satisfied, including providing Landlord
with information about the ownership of Tenant and its Affiliates to the extent
that such information is reasonably available. In addition, Tenant agrees, and
agrees to cause its Affiliates, to cooperate with Landlord in connection with
any additional requirements relating to Landlord's qualification as a REIT
arising from and after the date of this Lease. Immediately after becoming aware
that the REIT Requirements are not, or will not be, satisfied, Tenant shall
notify Landlord of such noncompliance.
ARTICLE XXVI
ENVIRONMENTAL INDEMNITY
26.1 Environmental Indemnity Provisions. Tenant hereby agrees to hold
harmless Landlord and Landlord's Lender, any successors to their respective
interests in this Lease, and the respective directors, officers, employees and
agents of any of the foregoing from and against any losses, claims, damages
(including consequential damages), penalties, fines, liabilities (including
strict liability), costs (including cleanup and recovery costs), and expenses
(including expenses of litigation and attorneys' fees) incurred by Landlord or
any other indemnitee or assessed against the Leased Property by virtue of any
claim or lien by any governmental or quasi-governmental unit, body, or agency,
or any third party, for cleanup costs or other costs pursuant to any
Environmental Laws, but only to the extent that the same relate to the period
from and after the date hereof. Tenant's indemnity shall survive the termination
of this Lease, provided, however, Tenant shall have no indemnity obligation with
respect to (i) Hazardous Substances first introduced to the Leased Property
subsequent to the date that Tenant's occupancy of the Leased
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Property shall have fully terminated or (ii) Hazardous Substances introduced to
the Leased Property by Landlord, its successors and assigns. Landlord hereby
agrees to hold harmless Tenant and any successors to its interest in this Lease,
and the respective directors, officers, employees and agents of any of the
foregoing from and against any losses, claims, damages (including consequential
damages), penalties, fines, liabilities (including strict liability), costs
(including cleanup and recovery costs), and expenses (including expenses of
litigation and attorneys' fees) incurred by Tenant or any other indemnitee or
assessed against the Leased Property by virtue of any claim or lien by any
governmental or quasi-governmental unit, body, or agency, or any third party,
for cleanup costs or other costs pursuant to any Environmental Laws, but only to
the extent that the same relate to the period prior to the date hereof.
ARTICLE XXVII
MISCELLANEOUS
27.1 Survival of Claims. Anything contained in this Lease to the contrary
notwithstanding, all claims against, and liabilities of, Tenant or Landlord
arising prior to any date of termination of this Lease shall survive such
termination.
27.2 Severability. If any term or provision of this Lease or any
application thereof shall be invalid or unenforceable, the remainder of this
Lease and any other application of such term or provision shall not be affected
thereby.
27.3 Maximum Permissible Rate. If any late charges provided for in any
provision of this Lease are based upon a rate in excess of the maximum rate
permitted by applicable law, the parties agree that such charges shall be
determined at the maximum permissible rate.
27.4 Headings. The headings in this Lease are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
27.5 Exculpation. Landlord's liability hereunder shall be limited solely
to its interest in the Leased Property, and no recourse under or in respect of
this Lease shall be had against any other assets of Landlord whatsoever.
Furthermore, except as otherwise expressly provided herein, in no event shall
Landlord (original or successor) ever be liable to Tenant for any indirect or
consequential damages suffered by Tenant from whatever cause.
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27.6 Transfer of Licenses. Upon the expiration or earlier termination of
the Term, Tenant shall use its best efforts to transfer to Landlord or
Landlord's nominee or to cooperate with Landlord or Landlord's nominee in
connection with the processing by Landlord or Landlord's nominee of any
applications for all licenses, operating permits and other governmental
authorization and all contracts, including contracts with governmental or
quasi-governmental entities which may be necessary for the operation of the
Leased Property; provided that the costs and expenses of any such transfer or
the processing of any such application shall be paid by Landlord or Landlord's
nominee.
27.7 Exhibition of Leased Property. Landlord and Landlord's agent shall
have the right to enter the applicable Leased Property at all reasonable times
for the purpose of exhibiting the Leased Property to others.
27.8 Entire Agreement. This Lease contains the entire agreement between
Landlord and Tenant with respect to the subject matter hereof.
27.9 Governing Law. This Lease shall be construed with respect to each
Leased Property under the substantive laws of the State of in which such Leased
Property is situated.
27.10 No Waiver. No waiver of any condition or covenant herein contained,
or of any breach of any such condition or covenant, shall be held or taken to be
a waiver of any subsequent breach of such covenant or condition, or to permit or
excuse its continuance or any future breach thereof or of any condition or
covenant herein construed as a waiver of such default, or of Landlord's right to
terminate this Lease or exercise any other remedy granted herein on account of
such existing default.
27.11 Successors and Assigns. This Lease shall be binding upon and shall
inure to the benefit of the heirs, successors, personal representatives, and
permitted assigns of Landlord and Tenant.
27.12 Modifications in Writing. This Lease may only be modified by a
writing signed by both Landlord and Tenant and, if otherwise required by the
terms hereof, Leasehold Mortgagee and/or Landlord's Lender.
27.13 No Waiver. No delay or omission by either party hereto to exercise
any right or power accruing upon any noncompliance or default by the other party
with respect to any of the terms hereof shall impair any such right or power or
be construed to be a waiver thereof.
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27.14 Claims Against Landlord. In the event that a claim or adjudication
is made that Landlord or its agents have acted unreasonably or unreasonably
delayed (or refrained from), acting in any case where by law or under this
Lease, Landlord or such agent, as the case may be, has an obligation to act
reasonably or promptly, Tenant agrees that neither Landlord nor its agents shall
be liable for any monetary damages, and Tenant's sole remedies shall be limited
to commencing an action seeking injunctive relief or declaratory judgment,
except in any instance in which it has been finally determined that Landlord's
action, delay or inaction has constituted gross negligence, fraud, willful
misconduct or an illegal act. The parties hereto agree that any action or
proceeding to determine whether Landlord has acted reasonably shall be
determined by an action seeking declaratory judgment.
ARTICLE XXVIII
28.1 Memorandum of Lease. Landlord and Tenant shall, promptly upon the
request of either enter into a short form memorandum of this Lease, in form
suitable for recording under the laws of the state in which the applicable
Leased Property is located, in which reference to this Lease, and all options
contained therein, shall be made. Tenant shall pay all costs and expenses of
recording such Memorandum of Lease.
ARTICLE XXIX
29.1 Landlord's Option to Purchase Tenant's Personal Property. Tenant
hereby grants Landlord the option to purchase all of the equipment and personal
property (tangible and intangible) that is employed by Tenant in connection with
the use and operation of each of the Properties, and the business conducted
thereat, including any interest of Tenant in the warehousing and customer
contracts (to the extent the same is assignable) and the interest of Tenant in
any equipment leases and the like. Such option shall be exercisable by Landlord
at any time prior to the date of expiration or earlier termination of this Lease
in respect of a Property and the conveyance in respect thereof shall be
consummated (and the payment of the purchase price therefor made) concurrently
with such expiration or earlier termination. The purchase price payable for
Tenant's Personalty shall be the Fair Market Value thereof, determined in
accordance with the terms of Article XXIV hereof (as adjusted to the extent
required to reflect that the subject of the appraisal is Tenant's Personalty
rather than a Leased Property). Tenant agrees to cooperate with Landlord in
effecting the smooth and orderly transfer of Tenant's Personalty in the event of
Landlord's exercise of the Purchase Option. Tenant's
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Personalty shall be conveyed free and clear of all liens, encumbrances or rights
of other parties, except as may have been disclosed to the appraisers in the
process of establishing the Fair Market Value thereof.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed, sealed and delivered in their respective names and in their behalf;
and if a corporation, by its officers duly authorized, as of the date first
hereinabove set forth.
Landlord:
AMERICOLD CORPORATION, an Oregon corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Its: President
-------------------------------------
Tenant:
AMERICOLD LOGISTICS, LLC, a Delaware limited
liability company
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
-------------------------------------
Its: Senior Vice President
-------------------------------------
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Exhibit A
[omitted: legal descriptions of parcels in Bartow, Florida; Brooks, Oregon;
Watertown, Massachusetts; Burbank, California; Denver, Colorado; Fullerton,
California; Grand Island, Nebraska; Ontario, Oregon; Pasco, Washington; Tampa,
Florida; and Watsonville, California]
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Exhibit 1.5(b)
List of Ground Leases and Expiration Dates
Fullerton
1) Standard Industrial Lease - Net, by and between Lincoln Fullerton Cold
Storage, a California limited partnership, and Patrician Associates, Inc., a
California corporation ("Lessor") and Americold Corporation, an Oregon
corporation ("Lessee"), dated July 20, 1999. Expires July 31, 1999 with no
options to extend.
Grand Island
1) Ground Lease Agreement, by and between ORE-▇▇▇ Foods, Inc., a Delaware
corporation ("Lessor") and Americold Corporation, an Oregon corporation
("Lessee"), dated as of June 21, 1995. Expires June 21, 2015, plus eight options
to extend for 10 years each.
2) Facility Lease, by and between ACL Company, LLC, a Minnesota limited
liability company ("Lessor") and Americold Corporation, an Oregon corporation
("Lessee"), dated February 1, 1996. Expires February 11, 2006, plus two options
to extend for 5 years each.
Ontario, Oregon
1) Lease Agreement by and between Oregon Warehouse Partners, a Texas general
partnership ("Landlord") and Americold Corporation, an Oregon corporation
("Tenant"), dated May 15, 1992. Expires May 5, 2017, plus two options to extend
for 5 years each.
Pajero
1) Ground Lease, dated March 31, 1993, by and between Americold Corporation and
Encincal Partnership No. 1 for lease of property in Monterey, California, as
amended July 15, 1997. Expires March 31, 2000 with no options to extend.
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Port of Tampa
1) Ground Lease, dated September 1, 1978, by and between Tampa Port Authority
and National Sea Products, as assigned to Americold Corporation by that certain
Assignment and Assumption of Tenant's Interest and Obligations in Lease and
Supplemental Facilities Agreement, dated July 31, 1991, by and between Tampa
Port Authority, National Sea Products and Americold Corporation, for lease of
property in Tampa, Florida. Expires August 31, 2003, plus one option to extend
for 5 years.
Pasco
1) Ground Lease, dated November 1, 1996, by and between ACL Company, LLC and
Americold Corporation for lease of property in Pasco, WA. Expires August 31,
2006, plus one option to extend for 5 years.
Tampa 50th Street
1) Ground Lease, dated February 15, 1972, by and between BF Properties Company
and ▇▇▇▇▇▇▇▇ Foods Co., as assigned to Americold Corporation, for lease of
property in Tampa, Florida. Expires February 25, 2002, plus six options to
extend for 5 years each.
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Exhibit 2.1(a)
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Exhibit 3.1(a)
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Exhibit 3.1(b)
CALCULATION OF PERCENTAGE RENT
Percentage Rent, with respect to each Lease, year shall becalculoated annually
as follows:
(a) for the period from Commencement Date through December 31, 2001, the
product of (i) 24% times (ii) all Receipts for the applicable Lease
Year in excess of the Breakpoint;
(b) for the period from January 1, 2002 through December 31, 2006, the
product of (i) 37.5% times (ii) all Receipts for the applicable
Lease Year in excess of the Breakpoint;
(c) for the period from January 1, 2007 through December 31, 2011, the
product of (i) 40% times (ii) all Receipts for the applicable Lease
Year in excess of the Breakpoint; and
(d) for the period from January 1, 2012 through February 28, 2014, the
product of (i) 41% times (ii) all Receipts for the applicable Lease
Year in excess of the Breakpoint.
As used herein, the "Breakpoint" with respect to any Lease Year shall be (i)
$32,320,000. for the period from the Commencement Date through December 31, 2001
and (ii) $26,000,000. for the period from January 1, 2002 through February 28,
2014. The Breakpoint shall be adjusted to account for the termination of this
Lease with respect to any one or more of the Leased Properties in accordance
with the terms of this Lease on a pro rata basis among each Leased Property
based on the percentages set forth next to each Leased Property in Exhibit
3.1(a) attached to this Lease.
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Exhibit 8.2.8
CERTAIN SUPERIOR LEASES
None.
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Schedule 9.1(b)
--------------------------------------------------------------------------------
Landlord's Responsibility Minimum Tenant's Responsibility
------------------------- -------------------------------
--------------------------------------------------------------------------------
None Commencement Date through 12/31/99: $953,836
1/1/2000 through 12/31/2000: $918,870
1/1/2001 through 12/31/2001: $959,634
1/1/2002 through 12/31/2002: $784,051
1/1/2003 through 12/31/2003: $651,699
1/1/2004 through 12/31/2004: $673,894
1/1/2005 through 2/18/2014: Expenditures
will increase 5%
annually but the
expenditures for the
period from 1/1/2014
through 2/18/2014 shall
be the same as the
expenditures for the
immediately preceding
Fiscal Year.
--------------------------------------------------------------------------------
100
Exhibit 15.1
SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated as of _________, ________ is made by and among
[____________] ("Landlord"), AmeriCold Logistics [II], LLC., a Delaware limited
liability company ("Tenant"), and [LANDLORD'S LENDER], a [___________] (together
with its successors and assigns "Lender") pursuant to that certain Loan
Agreement (the "Loan Agreement"), dated as of [_______________], by and between
Lender and Landlord.
W I T N E S S E T H
WHEREAS, under a certain master lease dated ________ __, 1999 (hereinafter
referred to as the "Lease"), Landlord did lease, let and demise the property
(hereinafter called the "Leased Property"), as described in the Lease to Tenant
for the period of time and upon the covenants, terms and conditions therein
stated; and
WHEREAS, the Lease has not been further amended or modified; and
WHEREAS, by making a mortgage loan, Lender became the owner of an
indebtedness and holder of a certain Note or Notes, secured by first priority
mortgages, deeds of trust and deeds to secure debt (collectively, the
"Mortgages"), which shall constitute liens upon the property described in said
Mortgages and as described in Exhibit A attached hereto (the "Mortgaged
Premises"), and is secured by an assignment of Landlord's interest in the Lease
as more particularly set forth in the Mortgage; and
WHEREAS, Landlord and Tenant acknowledge and agree to the aforesaid
assignment of Landlord's interest in the Lease; and
WHEREAS, Lender desires the Lease and all rights of the Tenant thereunder
to be subordinate to the Mortgage and all rights of Lender thereunder, and the
Tenant desires Lender's assurance not to disturb Tenant's rights of possession
of the Leased Property under the Lease in the event that Lender exercises its
remedies as a Lender under the Mortgages;
NOW THEREFORE, the parties hereto, in consideration of the covenants
contained herein, have agreed and hereby agree as follows:
101
Section 1.
The Lease, as the same may heretofore and hereafter be modified, amended
or extended, is and shall be subject and subordinate to the Mortgages on the
Mortgaged Premises, to each and every advance made or hereafter made under the
Loan Agreement, and to all renewals, modifications, consolidations, replacements
and extensions of the Mortgages.
Lender agrees that it shall make available to Tenant the insurance policy
proceeds and condemnation awards (or payments made in anticipation thereof or in
connection therewith) in accordance with the terms of Section 10.2(b) and
10.2(d) of the Lease.
Section 2.
So long as no default by Tenant has occurred and has continued to exist
for such period of time (after notice, if any, required by the Lease) as would
entitle Landlord to terminate the Lease (hereinafter called an "Event of
Default"), (A) Lender shall not, in any foreclosure action or proceeding which
may be instituted or taken by Lender under any Mortgage by reason of any default
thereunder, evict Tenant from the Leased Premises by the Lease, or terminate or
disturb Tenant's leasehold estate under the Lease, and (B) none of Tenant's
rights under the Lease shall be disturbed by reason of any default under any of
the Mortgages.
Section 3.
Tenant shall give Lender copies of all notices and other communications
given by Tenant to the Landlord under the Lease relating to defaults on the part
of the Landlord under the Lease.
Section 4.
In the event of any act or omission by Landlord which would give Tenant
the right, either immediately or after the lapse of a period of time, to
terminate the Lease, or to claim a partial or total eviction, Tenant will not
exercise any such right (A) until it has given written notice of such act or
omission to Lender by delivering such notice of such act or omission by
certified mail, return receipt requested, addressed to Lender at the address
specified under Section 7 hereof, and (B) until a reasonable period of time (not
less than thirty (30) days) for remedying such act or omission shall have
elapsed following giving of such notice and following the time when Lender shall
have become
102
entitled under the Mortgages or any additional mortgage to remedy the same,
provided Lender, with reasonable diligence, shall (i) have pursued such remedies
as are available to it under the Mortgages so as to be able to remedy the act or
omission, and (ii) thereafter shall have commenced and continued to remedy such
act or omission or cause the same to be remedied.
Section 5.
Without limitation of any of the provisions of the Lease, in the event
that, by reason of any default on the part of the Landlord, Lender or its
assigns shall succeed to the interest of Landlord or any successor to Landlord,
then subject to the provisions of this Agreement the Lease shall nevertheless
continue in full force and effect and Tenant shall attorn to Lender or its
assigns and shall recognize Lender or its assigns as its landlord. Upon request
of Lender, Tenant shall execute and deliver to Lender or its assigns an
agreement of attornment. If Lender or its assigns shall succeed to the interest
of Landlord or any successor to Landlord, in no event shall Lender be obligated
to remedy and default, nor shall Lender or its assigns have any liability under
the Lease prior to the date Lender or its assigns shall succeed to the rights of
Landlord or any successor to Landlord under the Lease, nor any liability for
offsets or defenses which Tenant might have had against Landlord or any
successor to Landlord. Lender and its assigns shall have no personal liability
as successor to Landlord, and Tenant shall look only to the estate and property
of Lender or its assigns (as applicable) in the Mortgaged Premises or the
proceeds thereof for the satisfaction of Tenant's remedies for the collection of
a judgment (or other judicial process) requiring the payment of money in the
event of any default by Lender and its assigns as Landlord under the Lease. No
other property or assets of Lender or its assigns shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to the Lease, the relationship of Landlord and
Tenant thereunder or Tenant's use or occupancy of the Leased Property.
Section 6.
Tenant has not subordinated the Lease or any of its rights under the Lease
to any lien or mortgage other than the Mortgage prior to the date hereof, and it
will not subordinate the Lease or the rights of the Tenant thereunder to any
lien or mortgage other than the Mortgage without the prior written consent of
Lender, unless otherwise permitted under the Lease. If Tenant at any time
acquires the interest of the Landlord under the Lease, the Lease will remain in
full force and effect and the interests of the Tenant and the Landlord under the
Lease will not merge.
103
Section 7.
All notices, demands, requests, consents, approvals and other
communications required or permitted to be given hereunder (collectively,
"Notices" or "notices") shall be in writing and delivered by hand or mailed (by
registered or certified mail, return receipt requested or reputable nationally
recognized overnight courier service and postage prepaid), addressed to the
respective parties, as follows:
(a) if to Tenant:
AmeriCold Logistics [II], LLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
(b) if to Lender:
________________
________________
________________
Attn: __________
or as to each party, to such other address as the party may designate by a
notice given in accordance with the requirements contained in this Section 7.
Section 8.
No prepayment of rent or additional rent due under the Lease of more than
one month in advance, and no amendment, modification, surrender or cancellation
of the Lease, shall be binding upon Lender, as holder of the Mortgages or as
Landlord under the Lease if it succeeds to that position, unless consented to in
writing by Lender. In addition, Lender as holder of the Mortgages or as Landlord
under the Lease if it succeeds to that position shall in no event have any
liability for the performance or completion of any work or to make improvements
to the Mortgaged Premises.
Section 9.
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If at any time Lender shall notify Tenant that an Event of Default has
occurred under the Mortgage and shall demand that any then unpaid rent or
additional rent and any rent or additional rent thereafter payable under the
Lease be paid directly to Lender, then Tenant shall thenceforth and until
notified by Lender that the matter in default has been paid or remedied pay such
rent or additional rent to Lender as the same becomes due under the Lease,
without the necessity for further notice and without obligation on the part of
Tenant to inquire whether or not default under the Mortgage occurred or has been
remedied. Any such payment made by the Tenant to Lender shall discharge in full
Tenant's obligation to make that payment to Landlord.
Section 10.
This Agreement may not be modified except by an agreement in writing
signed by the parties hereto or their respective successors in interest. This
Agreement shall apply to, bind and inure to the benefit of the parties hereto
and their respective successors and assigns. As used herein "Lender" shall
include any subsequent holder of the Mortgage. This Agreement shall supersede
and replace any agreement entered into prior to the date hereof by Tenant (or
any predecessor in interest of Tenant under the Lease) with any previous holder
of a mortgage covering the Mortgaged premises, which has been assigned to
Lender.
Section 11.
This Agreement shall be construed in accordance with the laws of the State
in which the Leased Property is situate.
[remainder of page intentionally left blank]
105
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed, sealed and delivered in their respective names and in their behalf;
and if a corporation, by its officers duly authorized, as of the date first
hereinabove set forth.
Landlord:
[________________________________________]
By: ______________________________________
Tenant:
AMERICOLD LOGISTICS [II], LLC, a Delaware
limited liability company
By: ______________________________________
Name:
Title:
Lender:
[________________________________________]
By: [____________________________________]
By: __________________________________
106
STATE OF )
) SS.:
COUNTY OF )
On this day of , 1999, before me personally
came to me known, who being by me duly sworn,
did depose and say that he resides at , that
he is the of , the trust described in and
which executed the foregoing as authorized signatory and on behalf of ; that he
knows the seal of said trust, that the seal affixed to said instrument is such
trust seal, that it was so affixed by order of the board of trustees of said
trust, and that he signed his name thereto by like order. In witness whereof I
hereunto set my hand and official seal.
_____________
Notary Public
(Notarial Seal)
STATE OF NEW YORK )
) SS.:
COUNTY OF )
On this day of , 1999, before me
personally came to me known, who by me being duly
sworn, did depose and say that he resides at ,
that he is the of .,
the of , the limited partnership
described in and which executed the foregoing instrument; that it was executed
by authority of the board of directors of said corporation and that he signed
his name thereto by like authority; and he acknowledged to me that said
instrument was executed by said corporation for and on behalf of said limited
partnership for the purposes therein mentioned.
107
_____________
Notary Public
(Notarial Seal)
STATE OF NEW YORK )
) SS.:
COUNTY OF )
On this day of , 1999, before me personally
came to me known, who being by me duly sworn, did
depose and say that he resides at , that he is the
of , the corporation described in and
which executed the foregoing instrument; that he knows the seal of said
corporation, that such corporate seal was affixed to the foregoing instrument;
that it was so affixed by order of the Board of Directors of said Corporation,
and who thereupon signed his name thereto by like order. In witness whereof I
hereunto set my hand and official seal.
_____________
Notary Public
(Notarial Seal)
108
Schedule 15.4
Arbitration Procedures
Arbitration shall be held in the city of Atlanta, Georgia in accordance with the
rules of the American Arbitration Association then in effect. There shall be one
arbitrator appointed in accordance with those rules. As part of the award, the
arbitrator shall make a fair allocation between the parties of the fee and
expenses of the American Arbitration Association and the cost of any transcript,
taking into account the merits of their claims and defenses. The arbitration
shall commence within thirty (30) days after demand for arbitration is made by a
party hereto. The arbitrator shall render his/her award within thirty (30) days
after the completion of the arbitration and the arbitration shall be held on
consecutive Business Days. Failure by either party to submit to arbitration as
required under this Lease shall result in the arbitrator ruling in favor of the
other party is such other party has submitted to arbitration under this Lease.
Judgement may be entered on the arbitrator's award in any court having
jurisdiction, and the parties irrevocably consent to the jurisdiction of the
Georgia courts for that purpose. The arbitrator may grant injunctive or other
equitable relief.