Attached files
Exhibit
10.5
*AGREEMENT PREVIOUSLY
FILED*
*RE-FILED TO INCLUDE ALL
EXHIBITS, SCHEDULES, AND ATTACHMENTS*
LEASE
AGREEMENT
dated
as of April 3, 2006
between
CT
CHATTANOOGA TN, LLC,
as Landlord
and
COVENANT
TRANSPORT, INC.,
a
Tennessee corporation,
as
Tenant
Table of
Contents
|
1.
|
Certain
Definitions
|
1
|
|
2.
|
Demise
of Premises
|
1
|
|
3.
|
Title
and Condition
|
1
|
|
4.
|
Use
of Leased Premises; Quiet Enjoyment
|
3
|
|
5.
|
Term.
|
4
|
|
6.
|
Rent
|
4
|
|
7.
|
Net
Lease; Non-Terminability
|
5
|
|
8.
|
Payment
of Impositions; Compliance with Legal Requirements and Insurance
Requirements.
|
6
|
|
9.
|
Liens;
Recording and Title
|
8
|
|
10.
|
Indemnification
|
9
|
|
11.
|
Maintenance
and Repair
|
11
|
|
12.
|
Alterations
|
12
|
|
13.
|
Condemnation
|
13
|
|
14.
|
Insurance
|
14
|
|
15.
|
Restoration
|
18
|
|
16.
|
Subordination
to Financing
|
19
|
|
17.
|
Assignment,
Subleasing
|
20
|
|
18.
|
Permitted
Contests
|
21
|
|
19.
|
Conditional
Limitations; Default Provisions
|
21
|
|
20.
|
Additional
Rights of Landlord and Tenant
|
24
|
|
21.
|
Notices
|
25
|
|
22.
|
Estoppel
Certificates
|
26
|
|
23.
|
Surrender
and Holding Over
|
26
|
|
24.
|
No
Merger of Title
|
27
|
|
25.
|
Definition
of Landlord
|
27
|
|
26.
|
Hazardous
Substances
|
27
|
|
27.
|
Entry
by Landlord
|
28
|
|
28.
|
No
Usury
|
28
|
|
29.
|
Financial
Statements
|
28
|
|
30.
|
Special
Tax Indemnity
|
28
|
i
|
31.
|
Withholdings
|
30
|
|
32.
|
Representations
|
31
|
|
33.
|
Duty
of First Offer
|
33
|
|
34.
|
Separability
|
34
|
|
35.
|
Miscellaneous
|
34
|
|
|
ii
EXHIBITS
|
EXHIBIT
A
|
Legal
Description
|
|
EXHIBIT
B
|
Basic
Rent
|
|
EXHIBIT
C
|
Form
of Tenant Estoppel
|
|
EXHIBIT
D
|
Form
of Landlord Waiver
|
|
EXHIBIT
E
|
Form
of Subordination, Non-Disturbance and Attornment
Agreement
|
|
APPENDIX
A
|
Definitions
|
|
|
iii
LEASE
AGREEMENT
THIS
LEASE AGREEMENT (as amended, supplemented and otherwise modified from time to
time, this “Lease”) made as of
April 3, 2006 by and between CT CHATTANOOGA TN, LLC, a Delaware limited
liability company, as landlord, having an office at c/o SunTrust Equity Funding,
LLC, 303 Peachtree Street, 24th
Floor, MC 3951, Atlanta, Georgia 30308, and COVENANT TRANSPORT, INC.,
a Tennessee corporation, as tenant, having an office at 400 Birmingham Highway,
Chattanooga, TN 37419.
In
consideration of the rents and provisions herein stipulated to be paid and
performed, Landlord and Tenant, intending to be legally bound, hereby covenant
and agree as follows:
1. Certain
Definitions. All
capitalized terms, unless otherwise defined herein, shall have the respective
meanings ascribed to such terms in Appendix A annexed hereto and by this
reference incorporated herein.
2. Demise of
Premises. Landlord
hereby demises and lets to Tenant and Tenant hereby takes and leases from
Landlord, for the Term and upon the provisions hereinafter specified, the Leased
Premises.
3. Title and
Condition.
(a) The
Leased Premises are demised and let subject to (i) Permitted Encumbrances, (ii)
all Legal Requirements and Insurance Requirements, including any existing
violation of any thereof, and (iii) the condition of the Leased Premises as of
the commencement of the Term; without representation or warranty by Landlord; it
being understood and agreed, however, that the recital of the Permitted
Encumbrances herein shall not be construed as a revival of any thereof which for
any reason may have expired.
(b) LANDLORD
HAS NOT MADE AND WILL NOT MAKE ANY INSPECTION OF ANY OF THE LEASED PREMISES, AND
LANDLORD LEASES AND WILL LEASE AND TENANT TAKES AND WILL TAKE THE LEASED
PREMISES “AS IS”, AND TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS
LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR
SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS
OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING ANY WARRANTY
OR REPRESENTATION AS TO ITS FITNESS FOR USE OR PURPOSE, DESIGN OR CONDITION FOR
ANY PARTICULAR USE OR PURPOSE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP
THEREIN, LATENT OR PATENT, AS TO LANDLORD’S TITLE THERETO, OR AS TO VALUE,
COMPLIANCE WITH SPECIFICATIONS, LOCATION, USE, CONDITION, MERCHANTABILITY,
QUALITY, DESCRIPTION, DURABILITY OR OPERATION, IT BEING AGREED THAT ALL RISKS
INCIDENT THERETO ARE TO BE BORNE BY TENANT. Tenant acknowledges that the Leased
Premises are of its selection and to its specifications, and that the Leased
Premises have been inspected by Tenant and are satisfactory to it. In
the event of any defect or deficiency in any of the Leased Premises of any
nature, whether patent or latent, Landlord shall not have any responsibility or
liability with respect thereto or for any incidental or consequential damages
(including strict liability in tort). The provisions of this Paragraph 3(b) have
been negotiated, and the foregoing provisions are intended to be a complete
exclusion and negation of any warranties by Landlord, express or implied, with
respect to any of the Leased Premises, arising pursuant to the Uniform
Commercial Code or any other law now or hereafter in effect or
otherwise.
(c) Tenant
acknowledges and agrees that Tenant has examined the title to the Leased
Premises prior to the execution and delivery of this Lease and has found such
title to be satisfactory for the purposes contemplated by this
Lease.
(d) Landlord
hereby assigns, without recourse or warranty whatsoever, to Tenant, all
Guaranties. Such assignment shall remain in effect until the
termination of this Lease. Landlord shall also retain the right to enforce any
Guaranties assigned to Tenant hereunder in the name of Tenant during the
continuance of any Event of Default. Landlord hereby agrees to
execute and deliver, at Tenant’s expense, such further documents, including
powers of attorney, as Tenant may reasonably request in order that Tenant may
have the full benefit of the assignment effected or intended to be effected by
this Paragraph
3(d). Upon the termination of this Lease, the Guaranties shall
automatically revert to Landlord, provided that, to the
extent that Tenant has incurred out-of-pocket costs and expenses to replace or
repair any part of the Leased Premises for which there is a claim under a
Guaranty, Tenant shall be subrogated to Landlord’s rights under such Guaranty to
the extent of such costs and expenses, and, at Tenant’s reasonable request,
Landlord shall cooperate with Tenant, at Tenant’s expense, to recover such
claim. The foregoing provision of reversion shall be self-operative
and no further instrument of reassignment shall be required. In
confirmation of such reassignment Tenant shall execute and deliver promptly any
certificate or other instrument which Landlord may reasonably
request. Any monies collected by Tenant under any of the Guaranties
after the occurrence of and during the continuation of an Event of Default shall
be held in trust by Tenant and promptly paid over to Landlord.
(e) Landlord
agrees to enter into, at Tenant’s expense, such Easements as are reasonably
requested by Tenant, subject to Lender’s and Landlord’s approval of the form
thereof, not to be unreasonably withheld or delayed; provided, however, that no
such Easement shall result in any diminution in the value or utility of the
Leased Premises for use as an office building, truck terminal and truck
maintenance facility and related purposes and further provided that no such
Easement shall render the use of the Leased Premises dependent upon any other
property, or condition the use of the Leased Premises upon the use of any other
property, each of which Tenant shall certify to Landlord and Lender in writing
delivered with Tenant’s request with respect to such
Easement. Tenant’s request shall also include Tenant’s written
undertaking acknowledging that Tenant shall remain liable hereunder as principal
and not merely as a surety or guarantor notwithstanding the establishment of any
Easement. Except as expressly permitted by this Lease, Landlord shall not enter
into any Easements, REA’s, restrictive covenants or other matters affecting
title to the Leased Premises without the prior consent of Tenant, which shall
not be unreasonably withheld or delayed.
2
(f) Tenant
agrees that Tenant is obligated to and shall perform all obligations of the
owner of the Leased Premises under, and pay all expenses which the owner of the
Leased Premises may be required to pay in accordance with, any REA, and that
Tenant shall comply with all of the terms and conditions of each REA during the
term of this Lease. Tenant further covenants and agrees to indemnify,
defend and hold harmless Landlord and Lender against any claim, loss or damage
suffered by Landlord or Lender by reason of Tenant’s failure to perform any
obligations or pay any expenses as required under any REA or comply with the
terms and conditions of any REA as hereinabove provided during the term of this
Lease.
4. Use of Leased Premises; Quiet
Enjoyment.
(a) Tenant
may use the Leased Premises as an office building, truck terminal and truck
maintenance facility or any other lawful purpose, so long as such other purpose
would not (i) have a material adverse effect on the value or utility of the
Leased Premises, (ii) materially increase the likelihood that Tenant, Landlord
or Lender would incur liability under any provisions of any Environmental Laws,
(iii) result in or give rise to any material environmental deterioration or
degradation of the Leased Premises or (iv) result in the Leased Premises
constituting “limited use property” within the meaning of Revenue Procedure
2001-28, 2001-19 I.R.B. 1156. In no event shall the Leased Premises
be used for any purpose which shall violate any of the provisions of any
Permitted Encumbrance or any covenants, restrictions or agreements hereafter
created by or consented to by Tenant applicable to the Leased
Premises. Tenant agrees that with respect to the Permitted
Encumbrances and any covenants, restrictions or agreements hereafter created by
or consented to by Tenant, Tenant, at its expense, shall observe, perform and
comply with and carry out the provisions thereof required therein to be observed
and performed by Landlord or Tenant. Landlord acknowledges and
agrees that for so long as this Lease is in full force and effect, Tenant shall
have the right to enforce all of Landlord’s rights and to enjoy all benefits and
privileges under the Permitted Encumbrances. Landlord shall
reasonably cooperate with Tenant, at Tenant’s expense, in promptly providing any
consents or approvals that may be required by any third party in connection with
Tenant’s enforcement of Tenant’s or Landlord’s rights under the Permitted
Encumbrances. Landlord further agrees to execute and deliver, at
Tenant’s expense, such further documents, including powers of attorney, as
Tenant may reasonably request in order that Tenant may enjoy all rights,
benefits and privileges under the Permitted Encumbrances.
(b) Subject
to Tenant’s rights under Paragraph 18 hereof,
Tenant shall not knowingly permit any unlawful occupation, business or trade to
be conducted on the Leased Premises or any use to be made thereof contrary to
applicable Legal Requirements or Insurance Requirements. Subject to
Tenant’s rights under Paragraph 18, Tenant
shall not use, occupy or knowingly permit any of the Leased Premises to be used
or occupied, nor do or knowingly permit anything to be done in or on any of the
Leased Premises, in a manner which would (i) make void or voidable any insurance
which Tenant is then maintaining in force with respect to any of the Leased
Premises as required hereunder, (ii) affect the ability of Tenant to obtain
any insurance which Tenant is required to furnish hereunder, (iii) cause any
injury or damage to any of the Improvements unless as a result of Alterations
permitted under Paragraph 12 hereof
or (iv) result in Landlord being subject to any burdensome
regulation. Tenant shall operate the Leased Premises in accordance,
in all material respects, with all applicable laws, rules and regulations,
including, without limitation, taking all such actions as may be necessary to
permit the Leased Premises to be operated as an office building, truck terminal
and truck maintenance facility.
3
(c) Subject
to all of the provisions of this Lease, so long as no Event of Default exists
hereunder, Landlord covenants to do no act to disturb the peaceful and quiet
occupation and enjoyment of the Leased Premises by Tenant.
(d) Tenant
covenants and agrees to remain in actual physical possession of the Leased
Premises and to continuously operate its business in the Leased Premises,
subject to Tenant’s rights under Paragraph 17
hereof.
5. Term.
(a) Subject
to the provisions hereof, Tenant shall have and hold the Leased Premises for an
initial term commencing on the Commencement Date and ending on the Expiration
Date.
(b) Provided
(i) this Lease shall not have been terminated pursuant to the provisions of
Paragraph 13(b)
or 19, and (ii)
an Event of Default has not occurred and remains uncured, in each case on the
applicable date of its Renewal Option Notice and on the Expiration Date (or the
expiration date of the then expiring Renewal Term, as applicable), Tenant shall
have eight (8) consecutive options to extend the term of this Lease for a
Renewal Term, commencing upon the day after the Expiration Date (or the
expiration date of the then expiring Renewal Term, as applicable). If
Tenant elects to exercise any one or more of said renewal options, it shall do
so by giving a Renewal Option Notice to Landlord at any time during the Term (or
the then Renewal Term, as applicable) but, in any event, on or before that date
which is twelve (12) months prior to the commencement of the Renewal Term for
which such election is exercised. Tenant shall forever waive its
right to exercise a renewal option if it shall, for any reason whatsoever, fail
to give such Renewal Option Notice to Landlord within the time and in the manner
provided for the giving of such notice, whether such failure is inadvertent or
intentional, TIME BEING OF THE ESSENCE as to the exercise of such renewal option
and the giving of such notice. If Tenant shall elect to exercise any
such renewal option, the term of this Lease shall be automatically extended for
five (5) years without the execution of an extension or renewal
lease. Any Renewal Term shall be subject to all of the provisions of
this Lease, and all such provisions shall continue in full force and
effect. Within ten (10) days after request by Landlord, Tenant shall
execute, acknowledge and deliver to Landlord an instrument confirming that such
option has been effectively exercised, confirming the extended expiration date
of this Lease and confirming the Basic Rent for the Renewal Term.
6. Rent.
(a) Tenant
shall pay to Landlord (or to such Person as is directed by Landlord), as rent
for the Leased Premises, beginning on the Commencement Date and continuing for
the Term, the Basic Rent in advance, on the Basic Rent Payment Dates, and shall
pay the same by wire transfer in immediately available federal funds to such
account in such bank as Landlord shall designate from time to
time. If the Commencement Date shall occur on a date other than the
first day of a calendar month, Basic Rent for the period from and including the
Commencement Date through and excluding the first day of the following month
shall be paid on the Commencement Date in the amount equal to one thirtieth
(1/30) of the monthly Basic Rent for the first year set forth on Exhibit B attached
hereto for each day from and including the Commencement Date through and
excluding the first day of the following month.
4
(b) Subject
to Tenant’s right to contest in accordance with Paragraph 18, Tenant
shall pay and discharge before the imposition of any fine, Lien, interest or
penalty which may be added thereto for late payment thereof, as Additional Rent,
all other amounts and obligations which Tenant assumes or agrees to pay or
discharge pursuant to this Lease, together with every fine, penalty, interest
and cost which may be added by the party to whom such payment is due for
nonpayment or late payment thereof. In the event of any failure by Tenant to pay
or discharge any of the foregoing, Landlord shall have all rights, powers and
remedies provided herein, by law or otherwise, in the event of nonpayment of
Basic Rent. All payments of Additional Rent that are payable to
Landlord shall be paid by Tenant by wire transfer in immediately available
federal funds to such account in such bank as Landlord shall designate, from
time to time.
(c) If
any installment of Basic Rent is not paid after the same is due, Tenant shall
pay to Landlord or Lender, as the case may be, on demand, as Additional Rent, an
amount equal to the late charge or late fee, if any, charged by, and due and
owing to, Lender under the Mortgage pursuant to the terms of the
Mortgage.
(d) Landlord
and Tenant agree that this Lease is a true lease and does not represent a
financing arrangement. Each party shall reflect the transactions
represented by this Lease in all applicable books, records and reports
(including, without limitation, income tax filings) in a manner consistent with
“true lease” treatment rather than “financing” treatment.
7. Net Lease;
Non-Terminability.
(a) This
is a net lease and Basic Rent, Additional Rent and all other sums payable
hereunder by Tenant shall be paid, except as otherwise expressly set forth in
this Lease, without notice, demand, setoff, counterclaim, recoupment, abatement,
suspension, deferment, diminution, deduction, reduction or defense.
(b) Except
as otherwise expressly provided in this Lease, this Lease shall not terminate,
and Tenant shall not have any right to terminate this Lease, during the
Term. Except as otherwise expressly provided in this Lease, Tenant
shall not be entitled to any setoff, counterclaim, recoupment, abatement,
suspension, deferment, diminution, deduction, reduction or defense of or to
Basic Rent, Additional Rent or any other sums payable under this Lease; and
except as otherwise expressly provided in this Lease, the obligations of Tenant
under this Lease shall not be affected by any interference with Tenant’s use of
any of the Leased Premises for any reason, including but not limited to the
following: (i) any damage to or destruction of any of the Leased
Premises by any cause whatsoever, (ii) any Condemnation, (iii) the prohibition,
limitation or restriction of Tenant’s use of any of the Leased Premises, (iv)
any eviction by paramount title or otherwise, (v) Tenant’s acquisition of
ownership of any of the Leased Premises other than pursuant to an express
provision of this Lease, (vi) any default on the part of Landlord under this
Lease or under any other agreement, (vii) any latent or other defect in, or any
theft or loss of any of, the Leased Premises, (viii) the breach of any warranty
of any seller or manufacturer of any of the Fixtures, (ix) any violation of
Paragraph 4(c)
by Landlord, or (x) any other cause, whether similar or dissimilar to the
foregoing, any present or future Law to the contrary
notwithstanding. It is the intention of the parties hereto that the
obligations of Tenant under this Lease shall be separate and independent
covenants and agreements, and that Basic Rent,
Additional Rent and all other sums payable by Tenant hereunder shall continue to
be payable in all events (or, in lieu thereof, Tenant shall pay amounts equal
thereto), and that the obligations of Tenant under this Lease shall continue
unaffected, unless this Lease shall have been terminated pursuant to an express
provision of this Lease, including, without limitation, the provisions of Paragraph 13(b) and
Paragraph 14(g)
hereof. Nothing set forth herein shall abrogate Tenant’s rights to
pursue a claim for damages against Landlord if Landlord breaches its obligations
under this Lease, provided that in no
event shall Tenant have any right to offset any such damages against Basic Rent
or Additional Rent or to terminate this Lease.
5
(c) Tenant
agrees that it shall remain obligated under this Lease in accordance with its
provisions and that, except as otherwise expressly provided herein, it shall not
take any action to terminate, rescind or avoid this Lease, notwithstanding (i)
the bankruptcy, insolvency, reorganization, composition, readjustment,
liquidation, dissolution, winding-up or other proceeding affecting Landlord,
(ii) the exercise of any remedy, including foreclosure, under the Mortgage, or
(iii) any action with respect to this Lease (including the disaffirmance hereof)
which may be taken by Landlord under the Federal Bankruptcy Code or by any
trustee, receiver or liquidator of Landlord or by any court under the Federal
Bankruptcy Code or otherwise.
(d) This
Lease is the absolute and unconditional obligation of Tenant. Tenant
waives all rights which are not expressly stated in this Lease but which may now
or hereafter otherwise be conferred by law (i) to quit, terminate or surrender
this Lease or any of the Leased Premises, (ii) to any setoff, counterclaim,
recoupment, abatement, suspension, deferment, diminution, deduction, reduction
or defense of or to Basic Rent, Additional Rent or any other sums payable under
this Lease, except as otherwise expressly provided in this Lease, and (iii) for
any statutory Lien or offset right against Landlord or its
property.
8. Payment of
Impositions; Compliance with Legal Requirements and Insurance
Requirements.
(a) (i) Subject
to the provisions of Paragraph 18 hereof,
Tenant shall, before interest or penalties are due thereon, pay and discharge
all Impositions, which payment shall be on an After Tax Basis as to
Landlord. If received by Landlord, Landlord shall promptly deliver to
Tenant any bill or invoice with respect to any Imposition.
(ii) Nothing
herein shall obligate Tenant to pay, and the term “Impositions” shall
exclude, federal, state or local (A) transfer taxes as the result of a
conveyance by (or suffered by) Landlord (unless attributable to an Event of
Default or such conveyance is to Tenant or a person designated by Tenant), (B)
franchise, capital stock or similar taxes if any, of Landlord, except to the
extent that such franchise, capital stock or similar taxes would not be payable
by Landlord but for Landlord’s interest in the Leased Premises or this Lease,
(C) income, excess profits or other taxes, if any, of Landlord, determined on
the basis of or measured by its net income, (D) any estate, inheritance,
succession, gift, capital levy or similar taxes, unless the taxes referred to in
clauses (B) and
(C) above are
in lieu of, or a substitute for, any other tax or assessment upon or with
respect to any of the Leased Premises which, if such other tax or assessment
were in effect at the commencement of the Term, would be payable by Tenant, or
(E) any Tax that would not have been imposed but for the failure of Indemnitee
to comply with certification, information,
documentation or other reporting requirements applicable to Indemnitee, if
compliance with such requirements is required by statute or regulation of the
relevant taxing authority as a precondition to relief or exemption from such
Tax, provided
that Tenant has complied with its obligations set forth in paragraph (e)
below. In the event that any assessment against any of the Leased
Premises may be paid in installments, Tenant shall have the option to pay such
assessment in installments; and in such event, Tenant shall be liable only for
those installments which become due and payable during the
Term. Tenant shall prepare and file all tax reports required by
governmental authorities which relate to the Impositions. Within
twenty (20) days after Landlord’s written request therefor, Tenant shall deliver
to Landlord copies of all settlements and notices pertaining to the Impositions
which may be issued by any Governmental Authority and receipts for payments of
all Impositions made during each calendar year of the Term (provided that, (i)
with respect to receipts for payments, Tenant shall provide them to Landlord
promptly upon request, but in any event Tenant shall have no less than thirty
(30) days after payment to make such delivery and (ii) Tenant shall provide
Landlord with evidence of payment of the property taxes due on May 1, 2006 on or
before May 1, 2006).
6
(b) Subject
to the provisions of Paragraph 18 hereof,
Tenant shall promptly comply with and conform to all of the Legal Requirements
and Insurance Requirements.
(c) Any
amount payable to Landlord pursuant to this Paragraph 8 shall be
paid within ten (10) days after receipt of a written demand therefor from
Landlord accompanied by a written statement describing in reasonable detail the
amount so payable. Any payments required to be made by Tenant
pursuant to this Paragraph 8 that are
not allowed to be paid directly to the appropriate Governmental Authority or
such other Person to whom such payment is due shall be made directly to Landlord
at the location and in the manner specified by Landlord pursuant to Paragraph 6 for the
payment of Rent. Any amount payable by Tenant under this Paragraph 8 that is
not paid to Landlord when due shall bear interest at the Default
Rate. In addition, Tenant shall be solely responsible for the payment
of any late fees, penalties or default interest with respect to any amount
payable by Tenant under this Paragraph 8 to anyone
other than Landlord that is not paid when due.
(d) If
any report, return or statement (a “Filing”) is required
to be filed with respect to any Imposition that is subject to this Paragraph 8, Tenant
shall, if permitted by Applicable Laws to do so, timely file or cause to be
filed such Filing with respect to such Tax and shall promptly provide notice of
such filing to Landlord (except for any such Filing that Landlord has notified
Tenant in writing that Landlord intends to file) and will (if ownership of the
Leased Premises or any part thereof or interest therein is required to be shown
on such Filing) show the ownership of the Leased Premises in the name of
Landlord and send a copy of such Filing to Landlord. If Tenant is not
permitted by Applicable Laws to file any such Filing, Tenant will promptly
notify Landlord of such requirement in writing and prepare and deliver to
Landlord a proposed form of such Filing and such information as is within
Tenant’s reasonable control or access with respect to such Filing within a
reasonable time under the circumstances, and in all events at least five (5)
Business Days, prior to the time such Filing is required to be
filed. Tenant shall hold Landlord harmless from and against any
liabilities, including, but not limited to penalties, additions to tax, fines
and interest, arising out of any insufficiency or inaccuracy in any such Filing,
if such insufficiency or inaccuracy is attributable to Tenant.
(e) Notwithstanding
anything herein to the contrary, any obligations of Tenant under the provisions
of this Paragraph
8 that accrue prior to the expiration or earlier termination of this
Lease shall survive such expiration or earlier termination of this
Lease.
7
(f)
Until the earlier of (i) the receipt by Landlord of a separate tax parcel number
for the Leased Premises and (ii) May 1, 2007, Tenant (A) shall pay when due all
Taxes with respect to the approximate 181.2 acre tax parcel of which the Leased
Premises is a part (the “Existing Tax Parcel”)
and shall provide evidence of such payment to Landlord within three (3) Business
Days of such payment, (B) shall not construct any improvements on that portion
of the Existing Tax Parcel not included in the Leased Premises except for a body
shop and such other improvements as shall be instrumental to the construction
and/or operation of such body shop, the aggregate construction cost of which
shall not exceed $10,000,000, and (C) shall not encumber that portion of the
Existing Tax Parcel that is not included in the Leased Premises with any Lien
for borrowed money. Tenant shall (i) promptly after Landlord’s
request, execute and deliver an agreement, in recordable form, evidencing the
agreements set forth in this Paragraph 8(f), which
agreement may be recorded against the Existing Tax Parcel in the appropriate
real estate records, and (ii) cooperate with Landlord in seeking to obtain a
separate tax parcel number for the Leased Premises as promptly as practicable
after the Commencement Date. In the event that Landlord has not
received a separate tax parcel number for the Leased Premises on or prior to May
1, 2007, then, until the date on which Landlord so receives such separate tax
parcel number, Tenant shall provide Landlord with not less than ninety (90)
days’ prior written notice of Tenant’s intent to undertake the construction of
any improvements on the Existing Tax Parcel or to encumber all or any portion of
the Existing Tax Parcel with any Lien for borrowed money.
9. Liens;
Recording and Title.
(a) Subject
to the provisions of Paragraph 18 hereof,
Tenant shall not, directly or indirectly, create or permit to be created or to
remain, and shall promptly discharge, any Lien on the Leased Premises, or on the
Basic Rent, Additional Rent or any other sums payable by Tenant under this
Lease, other than the Mortgage, the Permitted Encumbrances and any mortgage,
Lien, encumbrance or other charge created by, or resulting from any act or
omission by, Landlord or those claiming by, through or under Landlord (except
Tenant, or any assignee of, or sublessee from, Tenant). Notice is
hereby given that Landlord shall not be liable for any labor, services or
materials furnished or to be furnished to Tenant, or to anyone holding any of
the Leased Premises through or under Tenant, and that no mechanic’s or other
Liens for any such labor, services or materials shall attach to or affect the
interest of Landlord in and to any of the Leased Premises.
(b) Each
of Landlord and Tenant shall execute, acknowledge and deliver to the other a
written memorandum of this Lease to be recorded in the appropriate land records
of the jurisdiction in which the Leased Premises is located, in order to give
public notice and protect the validity of this Lease. In the event of
any discrepancy between the provisions of such recorded memorandum of this Lease
and the provisions of this Lease, the provisions of this Lease shall
prevail.
8
(c) Nothing
in this Lease and no action or inaction by Landlord shall be deemed or construed
to mean that Landlord has granted to Tenant any right, power or permission to do
any act or to make any agreement which may create, give rise to, or be the
foundation for, any right, title, interest or Lien in or upon the estate of
Landlord in any of the Leased Premises. Landlord shall not have any
Lien upon Tenant’s Trade Fixtures or any other personal property of Tenant that
is located at or on the Leased Premises, so long as such Trade Fixtures or other
personal property is not part of the Leased Premises and has not been funded by
Landlord.
10. Indemnification.
(a) Tenant
agrees to assume liability for, and to indemnify, protect, defend, save and keep
harmless each Indemnitee, on an After-Tax Basis, from and against any and all
Claims that may be suffered, imposed on or asserted against any Indemnitee,
arising out of (i) the ownership or leasing of the Leased Premises by Landlord,
the subleasing of the Leased Premises by Tenant, assignment by Tenant of its
interest in this Lease, or sale of the Leased Premises by Landlord to Tenant,
transfer of title of Tenant’s interest in this Lease, renewal of this Lease, or
operation, possession, use, non-use, maintenance, modification, alteration,
construction, reconstruction, restoration, or replacement of the Leased Premises
(or any portion thereof), or from the granting by Landlord at Tenant’s request
of easements, licenses or any rights with respect to all or any part of the
Leased Premises, or from the design, construction or condition of the Leased
Premises (including any Claims arising, directly or indirectly, out of the
actual or alleged presence, use, storage, generation or Release of any Hazardous
Materials, and any Claims for patent infringement and latent or other defects,
whether or not discoverable), including any liability under Applicable Laws
(including, without limitation, any Claims arising directly or indirectly out of
any actual or alleged violation, now or hereafter existing, of any Environmental
Laws), (ii) this Lease or any modification, amendment or supplement thereto,
(iii) the non-compliance of the Leased Premises with Applicable Laws (including
because of the existence of the Permitted Encumbrances), (iv) any matter
relating to all or any part of the Leased Premises or any operations thereon,
including matters relating to Environmental Laws or Hazardous Materials, (v) the
breach by Tenant of its representations, warranties, covenants and obligations
in this Lease whether or not such Claim arises or accrues prior to the date of
this Lease, (vi) the business and activities of Tenant, (vii) the business and
activities of any other Person on or about the Leased Premises (whether as an
invitee, subtenant, licensee or otherwise), (viii) the cost of assessment,
containment and/or removal of any and all Hazardous Materials from all or any
portion of the Leased Premises or any surrounding areas for which Tenant or
Landlord has any legal obligation, the cost of any actions taken in response to
a Release of any Hazardous Materials on, in, under or affecting any portion of
the Leased Premises or any surrounding areas for which Tenant or Landlord has
any legal obligation to prevent or minimize such Release so that it does not
migrate or otherwise cause or threaten danger to present or future public
health, safety, welfare or the environment, and costs incurred to comply with
Environmental Laws in connection with all or any portion of the Leased Premises
or any surrounding areas for which Tenant or Landlord has any legal obligation,
and (ix) an Event of Default.
9
(b) In
case any Claim shall be made or brought against any Indemnitee, such Indemnitee
shall give prompt notice thereof to Tenant; provided that failure
to so notify Tenant shall not reduce Tenant’s obligations to indemnify any
Indemnitee hereunder unless and only to the extent such failure results in
additional liability on Tenant’s part. Tenant shall be entitled, at
its expense, acting through counsel selected by Tenant (and reasonably
satisfactory to such Indemnitee), to participate in, or, except as otherwise
provided herein, to assume and control (if it promptly so elects upon notice of
the Claim), and, to the extent that Tenant desires to assume and control, in
consultation with Indemnitee, the negotiation, litigation and/or settlement of
any such Claim (subject to the provisions of the last sentence of subparagraph (c) of
this Paragraph
10). Such Indemnitee may (but shall not be obligated to)
participate at its own expense (unless Tenant is not defending such Claim in
accordance herewith and then at the expense of Tenant) and with its own counsel
in any proceeding conducted by Tenant in accordance with the foregoing, in which
case Tenant shall keep such Indemnitee and its counsel fully informed of all
proceedings and filings and afford such Indemnitee and counsel reasonable
opportunity for comment. Notwithstanding the foregoing, Tenant shall
not be entitled to assume and control the defense of any Claim if (i) an Event
of Default has occurred and is continuing, (ii) the proceeding involves possible
imposition of any criminal liability or penalty or a civil penalty on such
Indemnitee in excess of $1,000,000, (iii) the proceeding involves the granting
of injunctive relief against the Indemnitee not related to this Lease, (iv) a
significant counterclaim is available to the Indemnitee that would not be
available to and cannot be asserted by Tenant, (v) a conflict of interest exists
between the Indemnitee and Tenant with respect to the Claim, or (vi) the defense
of such Claim would require the delivery of material confidential and
proprietary information of such Indemnitee that would otherwise not be available
to Tenant or its counsel.
(c) Upon
payment in full of any Claim by Tenant pursuant to this Paragraph 10 to or on
behalf of an Indemnitee, Tenant, without any further action, shall be subrogated
to any and all Claims that such Indemnitee may have relating thereto (other than
claims in respect of insurance policies maintained by such Indemnitee at its own
expense or claims against another Indemnitee for which Tenant would have
indemnity obligations hereunder), and such Indemnitee shall execute such
instruments of assignment and conveyance, evidence of Claims and payment and
such other documents, instruments and agreements as may be reasonably necessary
to preserve any such Claims and otherwise reasonably cooperate with Tenant to
enable Tenant to pursue such Claims, all at Tenant’s expense.
(d) Notwithstanding
anything to the contrary contained herein, Tenant shall not be required to
indemnify any Indemnitee under this Paragraph 10 for any
Claim to the extent resulting from the gross negligence or willful misconduct of
such Indemnitee (except to the extent imputed to such Indemnitee as a result of
Tenant’s acts or failure to act).
(e) Each
Indemnitee shall be an express third party beneficiary of Tenant’s obligations
under this Paragraph
10 and may directly enforce its rights against Tenant
hereunder.
(f) The
obligations of Tenant under this Paragraph 10 shall
survive any termination of this Lease.
10
11. Maintenance and Repair.
(a) Tenant
shall at all times put, keep and maintain the Leased Premises (including,
without limitation, the roof, walls, footings, foundations, structural
components, paving, parking lots and landscaping (including the mowing of grass
and care of shrubs)) in good, clean, safe, first-class condition and repair, but
in any event, except for any Alterations that Tenant is permitted to make
pursuant to this Lease, in at least the same condition and order of repair as
exists as of the Commencement Date, except for ordinary wear and tear, and at
least the same or better condition and order as other similar properties owned
or leased by Tenant and its Affiliates. Tenant shall promptly make
all repairs and replacements of every kind and nature, whether foreseen or
unforeseen, which may be required to be made upon or in connection with the
Leased Premises in order to keep and maintain the Leased Premises in the order
and condition required by this Paragraph
11(a). Tenant shall do or cause others to do all shoring of
the Leased Premises or of foundations and walls of the Improvements and every
other act necessary or appropriate for preservation and safety thereof, by
reason of or in connection with any excavation or other building operation upon
any of the Leased Premises, whether or not Landlord shall, by reason of any
Legal Requirements or Insurance Requirements, be required to take such action or
be liable for failure to do so. LANDLORD SHALL NOT BE REQUIRED TO
MAKE ANY REPAIR, WHETHER FORESEEN OR UNFORESEEN, OR TO MAINTAIN ANY OF THE
LEASED PREMISES OR ADJOINING PROPERTY IN ANY WAY, AND TENANT HEREBY EXPRESSLY
WAIVES THE RIGHT TO MAKE REPAIRS OR MAINTENANCE AT THE EXPENSE OF THE LANDLORD,
WHICH RIGHT MAY BE PROVIDED FOR IN ANY LAW NOW OR HEREAFTER IN
EFFECT. Nothing in the preceding sentence shall be deemed to preclude
Tenant from being entitled to insurance proceeds or condemnation awards for
Restoration pursuant to, and to the extent set forth in, Paragraphs 13(c) and
14(g) of this
Lease. Tenant shall, in all events, make all repairs for which it is
responsible hereunder promptly, and all repairs shall be made in a good, proper
and workmanlike manner.
(b) Subject
to Paragraph 18
hereof, in the event that any Improvement shall violate any Legal Requirements
or Insurance Requirements and as a result of such violation enforcement action
is threatened or commenced against Tenant or Landlord or with respect to the
Leased Premises, then Tenant, at the request of Landlord, shall either (i)
obtain valid and effective waivers or settlements of all claims, liabilities and
damages resulting from each such violation, whether the same shall affect
Landlord, Tenant or both, or (ii) take such action as shall be necessary to
remove such violation, including, if necessary, making any
Alteration. Any such Alteration shall be made in conformity with the
provisions of Paragraph
12.
(c) If
Tenant shall be in default under any of the provisions of this Paragraph 11,
Landlord may, after thirty (30) days’ written notice given to Tenant and failure
of Tenant to cure during said period, but without notice in the event of an
emergency, do whatever is necessary to cure such default as may be appropriate
under the circumstances, for the account of and at the expense of
Tenant. In the event of an emergency, Landlord shall notify Tenant of
the situation by phone or other available communication. All
reasonable sums so paid by Landlord and all reasonable costs and expenses
(including, without limitation, attorneys’ fees and expenses) so incurred,
together with interest thereon at the Default Rate from the date of payment or
incurring the expense, shall constitute Additional Rent payable by Tenant under
this Lease and shall be paid by Tenant to Landlord on demand.
11
(d) Tenant
shall from time to time replace with Replacement Fixtures any of the Fixtures
which shall have become worn out or unusable for the purpose for which it is
intended, been taken by a Condemnation as provided in Paragraph 13, or been
lost, stolen, damaged or destroyed as provided in Paragraph
14. Tenant shall repair at its sole cost and expense all
damage to the Leased Premises caused by the removal of Fixtures or Replaced
Fixtures or other personal property of Tenant or the installation of Replacement
Fixtures. All Replacement Fixtures shall become the property of
Landlord, shall be free and clear of all Liens and rights of others, and shall
become a part of the Fixtures as if originally demised herein.
12. Alterations.
(a)
Tenant shall have the right to make any Alteration(s) to the Leased Premises
without the prior consent of Landlord the cost of which does not exceed
$300,000, in the
aggregate, in any calendar year and which are not Structural Changes; provided, that, in
each case, Tenant complies with clauses (c) and (d) of this Paragraph
12.
(b) Upon
thirty (30) days’ prior written notice to Landlord requesting Landlord’s
consent, Tenant shall have the right to make any Alteration(s) to the Leased
Premises, the cost of which exceeds $300,000, in the aggregate, in any calendar
year or which are Structural Changes; provided, that, (i)
no Event of Default under this Lease has occurred and is then continuing, (ii)
Tenant complies with clauses (c) and (d) of this Paragraph 12, (iii)
prior to making any such Alteration(s), Tenant shall provide Landlord with the
plans and specifications, estimated budgets and proposed schedule of
construction with respect thereto, and (iv) Landlord consents in writing to any
such Alteration(s), which consent (1) shall not be unreasonably withheld, and
(2) shall be deemed to have been given by Landlord if Landlord fails to respond
to Tenant’s notice within said thirty (30) day period, provided that
Tenant’s notice shall state on the envelope thereto in bold, capitalized print
substantially the following: “FAILURE OF THE RECIPIENT TO RESPOND
WITHIN THIRTY (30) DAYS TO THE ENCLOSED REQUEST FOR APPROVAL SHALL BE DEEMED
APPROVAL”.
(c) In
the event that Landlord gives its prior written consent to any Alterations, or
if such consent is not required, Tenant agrees that in connection with any
Alteration: (i) the fair market value of the Leased Premises shall
not be lessened after the completion of any such Alteration, or its structural
integrity impaired; (ii) the Alteration and any Alteration theretofore made or
thereafter to be made shall not in the aggregate reduce the gross floor area of
the Improvements by more than ten percent (10%); (iii) all such Alterations
shall be performed in a good and workmanlike manner, and shall be expeditiously
completed in compliance with all Legal Requirements; (iv) no such
Alteration shall change the permitted use of the Leased Premises (as described
in Paragraph 4
hereof), (v) all work done in connection with any such Alteration shall comply
with all Insurance Requirements; (vi) Tenant shall promptly pay all costs and
expenses of any such Alteration, and shall (subject to and in compliance with
the provisions of Paragraph 18 hereof)
discharge all Liens filed against any of the Leased Premises arising out of the
same; (vii) Tenant shall procure and pay for all permits and licenses required
in connection with any such Alteration; (viii) all such Alterations shall be the
property of Landlord and shall be subject to this Lease; (ix) no such Alteration
shall create any debt or other encumbrance(s) on the Leased Premises (provided
that if Tenant requests additional funding for such Alteration from Landlord
in writing, Landlord shall, at Tenant’s sole expense, use commercially
reasonable efforts to obtain such additional funding, subject to the receipt of
any required consent thereto from the Lender and an adjustment to the Basic Rent
to reflect such additional funding), and (x) all Alterations shall be made in
the case of any Alteration the estimated cost of which in any one instance
exceeds Five Hundred Thousand and 00/100 Dollars ($500,000.00) under the
supervision of an architect or engineer and in accordance with plans and
specifications which shall be submitted to Landlord (for informational purposes
only) prior to the commencement of the Alterations. If requested,
Tenant shall update Landlord’s and/or Lender’s policy of title insurance to
reflect any increase to the value of the improvements and insure against any
Liens which may have been placed against the Leased Premises in connection with
such Alterations.
12
(d) Notwithstanding
anything to the contrary contained herein, Tenant shall not, without Landlord’s
prior written consent, which consent may be withheld or denied in Landlord’s
sole discretion (i) demolish all or substantially all of the Improvements, or
(ii) make any Alterations, at any time, which would (after the completion
thereof) impair the structural integrity of the Leased Premises.
13. Condemnation.
(a) Tenant,
promptly upon obtaining knowledge of the institution of any proceeding for
Condemnation, shall notify Landlord thereof and Landlord shall be entitled to
participate in any Condemnation proceeding. Landlord, promptly after
obtaining knowledge of the institution of any proceeding for Condemnation, shall
notify Tenant thereof and Tenant shall have the right to participate in such
proceedings. Subject to the provisions of this Paragraph 13 and
Paragraph 15,
Tenant hereby irrevocably assigns to Landlord any award or payment in respect of
any Condemnation of Landlord’s interest in the Leased Premises, except that
(except as hereinafter provided) nothing in this Lease shall be deemed to assign
to Landlord any award relating to the value of the leasehold interest created by
this Lease or any award or payment on account of the Trade Fixtures, moving
expenses, loss of business income and out-of-pocket expenses incidental to the
move, if available, to the extent Tenant shall have a right to make a separate
claim therefor against the condemnor, it being agreed, however, that Tenant
shall in no event be entitled to any payment that reduces the award to which
Landlord is or would be entitled for the condemnation of Landlord’s interest in
the Leased Premises.
(b) (i) If
(I) the entire Leased Premises, (II) a material portion of the Land or the
building constructed on the Land or any means of ingress, egress or access to
the Leased Premises, the loss of which even after restoration, would, in
Tenant’s reasonable business judgment, be substantially and materially adverse
to the business operations of Tenant at the Leased Premises, or (III) any means of
ingress, egress or access to the Leased Premises which does not result in at
least one method of ingress and egress to and from the Leased Premises
remaining, provided the same is permitted under then existing Legal
Requirements, shall be the subject of a Taking by a duly constituted
authority or agency having jurisdiction, then Tenant may, not later than ninety
(90) days after Tenant has received notification of such Taking from the
applicable Governmental Authority, serve a Tenant’s Termination Notice upon
Landlord.
13
(ii) In
the event that Tenant shall serve a Tenant’s Termination Notice upon Landlord,
this Lease and the Term hereof shall terminate on the Termination Date specified
in the Tenant’s Termination Notice; and in such event the Net Award to be made
in the Condemnation proceeding shall be paid to Landlord. From and
after the Termination Date specified in the Tenant’s Termination Notice, Tenant
shall have no further obligation to pay Basic Rent, Additional Rent or any other
sums otherwise payable by Tenant hereunder except with respect to those
provisions of this Lease that expressly survive termination.
(c) (i) In
the event of a Condemnation of any part of the Leased Premises which does not
result in a termination of this Lease, subject to the requirements of Paragraph 15, the Net
Award of such Condemnation shall be retained by Landlord, and promptly after
such Condemnation, Tenant shall commence and diligently continue to completion
the Restoration of the Leased Premises.
(ii) Upon
the payment to Landlord of the Net Award of a Taking which falls within the
provisions of this Paragraph 13(c),
Landlord and Lender shall, to the extent received, make the Restoration Award
available to Tenant for Restoration, in accordance with the provisions of Paragraph 15, and
promptly after completion of the Restoration, the balance of the Net Award shall
be paid to Landlord. Notwithstanding the occurrence of any
Condemnation that does not result in a termination of this Lease, all Basic
Rent, Additional Rent and other sums payable hereunder shall continue unabated
and unreduced.
(iii) In
the event of a Requisition of the Leased Premises, Landlord shall apply the Net
Award of such Requisition, to the extent available, to the installments of Basic
Rent, Additional Rent or other sums payable by Tenant hereunder thereafter
payable and Tenant shall pay any balance remaining thereafter. Upon
the expiration of the Term, any portion of such Net Award which shall not have
been previously credited to Tenant on account of the Basic Rent and Additional
Rent shall be retained by Landlord.
(d) Except
with respect to an award or payment to which Tenant is entitled pursuant to the
provisions of Paragraph 13(a) or
13(c), no
agreement with any condemnor in settlement of or under threat of any
Condemnation shall be made by either Landlord or Tenant without the written
consent of the other (provided that if an
Event of Default has occurred and is continuing, no consent of Tenant shall be
required to any settlement made by Landlord), and of Lender, if the Leased
Premises are then subject to a Mortgage, which consent shall not be unreasonably
withheld or delayed.
14. Insurance.
(a) Tenant
shall maintain at its sole cost and expense the following insurance on the
Leased Premises:
14
(i) Insurance
against loss or damage to the Improvements and Fixtures under an “all risk”
extended coverage insurance policy, which shall include coverage against all
risks of direct physical loss, including loss by fire, lightning, [riot, civil
commotion,] terrorism and other risks which at the time are included under
“extended endorsements
(which shall include windstorm if the Leased Premises is located in an area
where windstorm insurance is customarily maintained for similar commercial
properties, flood insurance if the Leased Premises is located within a flood
hazard area and earthquake insurance if the Leased Premises is
located in an area where earthquake insurance is customarily maintained for
similar commercial properties) and against other risks insured against by
persons operating like properties in the locality of the Leased
Premises. Such insurance shall be in amounts sufficient to prevent
Landlord or Tenant from becoming a co-insurer under the applicable policies, and
in any event, after application of the related deductible, in amounts not less
than the actual replacement cost of the Improvements and Fixtures (excluding
footings and foundations and other parts of the Improvements which are not
insurable) as reasonably determined from time to time at Landlord’s request but
not more frequently than once in any 12-month period, by agreement of Landlord
and Tenant, or if not so agreed, at Tenant’s expense, by the insurer or insurers
or by an appraiser approved by Landlord. Such insurance policies may
contain reasonable exclusions and deductible amounts, all in accordance with
industry standards.
(ii) Contractual
and comprehensive general liability insurance against claims for bodily injury,
death or property damage occurring on, in or about the Leased Premises, which
insurance shall be written on an “Occurrence Basis”, and shall provide minimum
protection with a combined single limit in an amount not less than Five Million
($5,000,000) Dollars (or in such increased limits from time to time to reflect
declines in the purchasing power of the dollar as Landlord may reasonably
request) for bodily injury, death and property damage in any one
occurrence.
(iii) Statutory
worker’s compensation insurance covering all persons employed by Tenant on the
Leased Premises in connection with any work done on or about any of the Leased
Premises for which claims for death or bodily injury could be asserted against
Landlord, Tenant or the Leased Premises.
(iv) Insurance
against loss or damage from explosion of any steam or pressure boilers or
similar apparatus, if any, located in or about the Improvements in an amount not
less than the actual replacement cost of the Improvements and Fixtures
(excluding footings and foundations and other parts of the Improvements which
are not insurable).
(v) Business
interruption insurance in an amount at least equal to six months of operations
of the Leased Premises.
(vi) Such
additional and/or other insurance with respect to the Improvements located on
the Leased Premises and in such amounts as at the time is customarily carried by
prudent owners or tenants with respect to improvements similar in character,
location and use and occupancy to the Improvements located on the Leased
Premises, provided that
Landlord shall notify Tenant of such additional insurance.
15
(b) The
insurance required by Paragraph 14(a) shall
be written by companies having an A.M. Best Insurance Reports rating of not less
than “A”, and a financial size category of “VIII”, and all such companies shall
be authorized to do an insurance business in the State, or otherwise agreed to
by Landlord and Lender. The insurance policies (i) shall be in amounts
sufficient at all times to satisfy any coinsurance requirements thereof, and
(ii) shall (except for the worker’s compensation insurance referred to in Paragraph 14 (a)(iii)
hereof) name Landlord, Tenant and each Lender (whose name and address Landlord
shall provide to Tenant) as additional insured parties, as their respective
interests may appear. If said insurance or any part thereof shall
expire, be withdrawn, become void by breach of any condition thereof by Tenant
or become void or unsafe by reason of the failure or impairment of the capital
of any insurer, Tenant shall immediately obtain new or additional insurance
reasonably satisfactory to Landlord and Lender.
(c) Each
insurance policy referred to in clauses (i) and (iv) (and (vi) if requested by
Lender) of Paragraph
14(a), shall contain standard non-contributory mortgagee clauses in favor
of each Lender which holds an interest in a Mortgage on the Leased
Premises. Each policy shall provide that it may not be canceled or
amended in any material respect except after thirty (30) days’ prior notice to
Landlord and any Lender. Each policy of insurance shall contain a
waiver of subrogation or consent to a waiver of right of recovery against the
Landlord. Each policy shall also provide that any losses otherwise
payable thereunder shall be payable notwithstanding (i) any act or omission of
Landlord, Tenant or any other Person which might, absent such provision, result
in a forfeiture of all or a part of such insurance payment, or (ii) the
occupation or use of any of the Leased Premises for purposes more hazardous than
permitted by the provisions of such policy.
(d) Tenant
shall pay as they become due all premiums for the insurance required by this
Paragraph 14,
shall renew or replace each policy, and shall deliver to Landlord and each
Lender (whose name and address Landlord shall provide to Tenant) a certificate
or other evidence (reasonably satisfactory to Lender and Landlord) of the
existing policy and such renewal or replacement policy at least thirty days
prior to the Insurance Expiration Date of each policy. Each such
policy shall be renewable not more frequently than every six months and shall
provide that it shall not expire until the Landlord and Lender shall receive a
notice from the insurer to the effect that such policy will expire on the
Insurance Expiration Date, as set forth in such notice, which shall be thirty
(30) days following the date of the receipt by Landlord and Lender of such
notice. In the event of Tenant’s failure to comply with any of the
foregoing requirements of this Paragraph 14 within
five (5) business days of the giving of written notice by Landlord to Tenant,
Landlord shall be entitled to procure such insurance. Any sums
expended by Landlord in procuring such insurance shall be Additional Rent and
shall be repaid by Tenant, together with interest thereon at the Default Rate,
from the time of payment by Landlord until fully paid by Tenant immediately upon
written demand therefor by Landlord.
(e) Anything
in this Paragraph
14 to the contrary notwithstanding, any insurance which Tenant is
required to obtain pursuant to Paragraph 14(a) may
be carried under a “blanket” policy or policies covering other properties or
liabilities of Tenant, provided that such “blanket” policy or policies otherwise
comply with the provisions of this Paragraph
14. In the event any such insurance is carried under a blanket
policy, Tenant shall deliver to Landlord and Lender evidence
of the issuance and effectiveness of the policy, the amount and character of the
coverage with respect to the Leased Premises and the presence in the policy of
provisions of the character required in the above sections of this Paragraph
14. No deductible under any insurance required pursuant to
this Paragraph
14 shall exceed $25,000.
16
(f) In
the event of any casualty loss exceeding $100,000, Tenant shall give Landlord
immediate notice thereof. Tenant shall adjust, collect and compromise
any and all claims, with the consent of Lender and Landlord, not to be
unreasonably withheld or delayed, and Landlord and Lender shall have the right
to join with Tenant therein. If the estimated cost of Restoration or
repair shall be One Hundred Thousand ($100,000.00) Dollars or less, all proceeds
of any insurance required under clauses (i) and (iv) (and (v) if
requested by Lender) of Paragraph 14(a)
shall be payable to Tenant, provided that no Event of Default then exists
hereunder, and in all other events to a Trustee. If the Leased
Premises shall be covered by a Mortgage, Lender, if it so desires, shall be the
Trustee. Each insurer is hereby authorized and directed to make
payment under said policies directly to such Trustee instead of to Landlord and
Tenant jointly; and Tenant and Landlord each hereby appoints such Trustee as its
attorney-in-fact to endorse any draft therefor for the purposes set forth in
this Lease. In the event of any casualty (whether or not insured
against) resulting in damage to the Leased Premises or any part thereof, the
Term shall nevertheless continue and there shall be no abatement or reduction of
Basic Rent, Additional Rent or any other sums payable by Tenant
hereunder. The Net Proceeds of such insurance payment shall be
retained by the Trustee and, promptly after such casualty, Tenant, as required
in Paragraphs
11(a) and 12, shall commence
and diligently continue to perform the Restoration to the Leased
Premises. Upon payment to the Trustee of such Net Proceeds, the
Trustee shall, to the extent available, make the Net Proceeds available to
Tenant for restoration, in accordance with the provisions of Paragraph
15. Subject to Paragraph 14(g),
Tenant shall, whether or not the Net Proceeds are sufficient for the purpose,
promptly repair or replace the Improvements and Fixtures in accordance with the
provisions of Paragraph 11(a) and
the Net Proceeds of such loss shall thereupon be payable to Tenant, subject to
the provisions of Paragraph
15. In the event that any damage or destruction shall occur at
such time as Tenant shall not have maintained third-party insurance in
accordance with Paragraph 14(a),
Tenant shall pay to the Trustee Tenant’s Insurance Payment, unless the estimated
cost of Restoration is $100,000 or less, in which event Tenant may retain and
use Tenant’s Insurance Payment to pay for restoration of the Leased Premises
.
(g) (i) If
a casualty occurs during the last twelve (12) months of the Initial Term or any
Renewal Term which casualty results in the total loss of the Improvements, then
Tenant may, not later than ninety (90) days after such casualty has occurred,
serve a Tenant’s Termination Notice upon Landlord.
(ii) In
the event that Tenant shall serve a Tenant’s Termination Notice upon Landlord
pursuant to paragraph
(i), this Lease and the Term hereof shall terminate on the Termination
Date specified in the Tenant’s Termination Notice; and in such event Tenant
shall have no obligation to commence or complete the Restoration and all of the
insurance proceeds (or Tenant’s Insurance Payment, as applicable) payable in
connection with the casualty shall be paid to Landlord. From and
after the Termination Date specified in the Tenant’s Termination Notice, Tenant
shall have no further obligation to pay Basic Rent, Additional Rent or any other
sums otherwise payable by Tenant hereunder except with respect to those
provisions of this Lease that expressly survive termination.
17
15. Restoration. The
Restoration Fund shall be disbursed by the Trustee in accordance with the
following conditions:
(a) If
the cost of Restoration will exceed $100,000, prior to commencement of the
Restoration the architects, general contractor(s), and plans and
specifications for the Restoration shall be approved by Landlord, which approval
shall not be unreasonably withheld or delayed; and which approval shall be
granted to the extent that the plans and specifications depict a Restoration
which is substantially similar to the Improvements and Fixtures which existed
prior to the occurrence of the casualty or Taking, whichever is
applicable.
(b) At
the time of any disbursement, no Event of Default shall exist and no mechanics’
or materialmen’s Liens shall have been filed and remain undischarged or
unbonded.
(c) Disbursements
shall be made from time to time in an amount not exceeding the hard and soft
cost of the work and costs incurred since the last disbursement upon receipt of
(1) satisfactory evidence, including architects’ certificates of the stage of
completion, of the estimated cost of completion and of performance of the work
to date in a good and workmanlike manner in accordance with the contracts, plans
and specifications, (2) partial releases of Liens, and (3) other reasonable
evidence of cost and payment so that Landlord can verify that the amounts
disbursed from time to time are represented by work that is completed in place
or delivered to the site and free and clear of mechanics’ Lien
claims.
(d) Each
request for disbursement shall be accompanied by a certificate of Tenant
describing the work, materials or other costs or expenses, for which payment is
requested, stating the cost incurred in connection therewith and stating that
Tenant has not previously received payment for such work or expense and the
certificate to be delivered by Tenant upon completion of the work shall, in
addition, state that the work has been substantially completed and complies with
the applicable requirements of this Lease.
(e) The
Trustee may retain up to ten percent (10%) of the Restoration Fund until the
Restoration is at least fifty percent (50%) complete, and thereafter up to five
percent (5%) until the Restoration is substantially complete.
(f) The
Restoration Fund shall be kept in a separate interest-bearing federally insured
account by the Trustee or by Lender. All interest accrued on the
Restoration Fund shall become a part of the Restoration Fund.
(g) At
all times the undisbursed balance of the Restoration Fund held by Trustee plus
any funds contributed thereto by Tenant, at its option, shall be not less than
the cost of completing the Restoration, free and clear of all
Liens.
18
(h) In
addition, prior to commencement of Restoration and at any time during
Restoration, if the estimated cost of Restoration, as reasonably determined by
Landlord, exceeds the amount of the Net Proceeds, the Restoration Award and
Tenant Insurance Payment available for such Restoration, Tenant shall fund, at
its own expense, the costs of such Restoration until the remaining Restoration
Fund is sufficient for the completion of the Restoration. Any sum in
the Restoration Fund which remains in the Restoration Fund upon the completion
of Restoration shall be paid to Tenant. For purposes of determining
the source of funds with respect to the disposition of funds remaining after the
completion of Restoration, the Net Proceeds or the Restoration Award shall be
deemed to be disbursed prior to any amount added by Tenant.
16. Subordination
to Financing.
(a) (i) Subject
to the provisions of Paragraph 16(a)(ii),
Tenant agrees that this Lease shall at all times be subject and subordinate to
the Lien of any Mortgage, and Tenant agrees, upon demand, without cost, to
execute instruments as may be reasonably required to further effectuate or
confirm such subordination.
(ii) Except
as expressly provided in this Lease by reason of the occurrence of an Event of
Default, and as a condition to the subordination described in Paragraph 16(a)(i)
above, Tenant’s tenancy and Tenant’s rights under this Lease shall not be
disturbed, terminated or otherwise adversely affected, nor shall this Lease be
affected, by the existence of, or any default under, any Mortgage, and in the
event of a foreclosure or other enforcement of any Mortgage, or sale in lieu
thereof, the purchaser at such foreclosure sale shall be bound to Tenant for the
Term of this Lease and any Renewal Term, the rights of Tenant under this Lease
shall expressly survive, and this Lease shall in all respects continue in full
force and effect so long as no Event of Default has occurred and is
continuing. Tenant shall not be named as a party defendant in any
such foreclosure suit, except as may be required by law. Any Mortgage
to which this Lease is now or hereafter subordinate shall provide, in effect,
that during the time this Lease is in force insurance proceeds and any
Restoration Award shall be permitted to be used for restoration in accordance
with the provisions of this Lease.
(b) Notwithstanding
the provisions of Paragraph 16(a), the
holder of any Mortgage to which this Lease is subject and subordinate shall have
the right, at its sole option, at any time, to subordinate and subject the
Mortgage, in whole or in part, to this Lease by recording a unilateral
declaration to such effect, provided that such
holder shall have agreed that during the time this Lease is in force any
insurance proceeds and any Restoration Award shall be permitted to be used for
Restoration in accordance with the provisions of this Lease.
(c) At
any time prior to the expiration of the Term, Tenant agrees, at the election and
upon demand of any owner of the Leased Premises, or of a Lender who has granted
non-disturbance to Tenant pursuant to Paragraph 16(a)
above, to attorn, from time to time, to any such owner or Lender, upon the terms
and conditions of this Lease, for the remainder of the Term. The
provisions of this Paragraph 16(c) shall
inure to the benefit of any such owner or Lender, shall apply notwithstanding
that, as a matter of law, this Lease may terminate upon the foreclosure of the
Mortgage, shall be self-operative upon any such demand, and no further
instrument shall be required to give effect to said provisions.
19
(d) Each
of Tenant, Landlord and Lender agrees that, if requested by any of the others,
each shall, without charge, enter into a Subordination, Non-Disturbance and
Attornment Agreement in substantially the form attached hereto as Exhibit E and Tenant
hereby agrees for the benefit of any Lender whose name and address have been
provided to Tenant that Tenant will not, (i) without in each case securing the
prior written consent of such Lender, amend or modify this Lease or
enter into any agreement with Landlord so to do, (ii) without the prior written
consent of such Lender which may be withheld in its sole discretion, cancel or
surrender or seek to cancel or surrender the Term hereof, or enter into any
agreement with Landlord to do so (the parties agreeing that the foregoing shall
not be construed to affect the rights or obligations of Tenant, Landlord or
Lender with respect to any termination permitted under the express terms hereof
in connection with certain events of condemnation or casualty as provided in
Paragraph 13 or Paragraph 14), or (c)
pay any installment of Basic Rent more than one (1) month in advance of the due
date thereof or otherwise than in the manner provided for in this
Lease.
(e) If
any Person providing financing of Tenant’s personal property requires that
Tenant obtain a landlord’s waiver from Landlord, Landlord shall execute and
deliver a waiver substantially in the form attached hereto as Exhibit D, promptly
after Tenant’s request therefor, provided that Tenant pay, or reimburse Landlord
for, all reasonable costs and expenses, including reasonable attorneys’ fees,
incurred by Landlord in connection with such waiver.
17. Assignment,
Subleasing.
(a) Tenant
may assign its interest in this Lease to any Subsidiary of Lease Guarantor and
may sublet the Leased Premises in whole or in part, from time to time, without
the consent of Landlord. Except for any right to place a Lien on its
personal property, Tenant shall have no rights to mortgage or otherwise
hypothecate its leasehold interest under this Lease.
(b) Each
sublease of the Leased Premises or any part thereof shall (i) be subject and
subordinate to the provisions of this Lease, (ii) terminate on or prior to the
Expiration Date, (iii) provide for rent payable monthly in advance and (iv) not
permit payment of rent more than one month in advance. No assignment
or sublease shall (i) affect or reduce any of the obligations of Tenant
hereunder, and all such obligations shall continue in full force and effect as
obligations of a principal and not as obligations of a guarantor, as if no
assignment or sublease had been made or (ii) be to a tenant that would render
the Leased Premises or any portion thereof a “tax-exempt use property” within
the meaning of Section 168(h) of the Code or otherwise result in any adverse tax
effect on Landlord. Notwithstanding any assignment or subletting,
Tenant shall continue to remain primarily liable and responsible for the payment
of the Basic Rent and Additional Rent and the performance of all its other
obligations under this Lease. No assignment or sublease shall impose
any obligations on Landlord under this Lease except as otherwise provided in
this Lease. Tenant agrees that in the case of an assignment of this
Lease, Tenant shall, within fifteen (15) days after the execution and delivery
of any such assignment, deliver to Landlord (i) a duplicate original of such
assignment in recordable form and (ii) an agreement executed and acknowledged by
the assignee in recordable form wherein the assignee shall agree to assume and
agree to observe and perform all of the terms and provisions of this Lease on
the part of the Tenant to be observed and performed from and after the date of
such assignment. In the case of a sublease, Tenant shall,
within fifteen (15) days after the execution and delivery of such sublease,
deliver to Landlord a duplicate original of such sublease.
20
(c) In
the event this Lease is terminated following the occurrence of an Event of
Default, Landlord shall have the right to collect and enjoy all rents and other
sums of money payable under any sublease of any of the Leased Premises, and,
upon such event, Tenant shall be deemed to have irrevocably and unconditionally
assigned such rents and money to Landlord.
18. Permitted
Contests.
(a) So
long as no Event of Default has occurred and is continuing, after prior written
notice to Landlord, Tenant shall not be required to (i) pay any Imposition, (ii)
comply with any Legal Requirement, (iii) discharge or remove any Lien referred
to in Paragraph
9 or 12,
or (iv) take any action with respect to any violation referred to in Paragraph 11(b) so
long as Tenant shall contest, in good faith and at its expense, the existence,
the amount or the validity thereof, the amount of the damages caused thereby, or
the extent of its or Landlord’s liability therefor, by appropriate proceedings
which shall operate during the pendency thereof to prevent (A) the collection
of, or other realization upon, the Imposition or Lien so contested, (B) the
sale, forfeiture or loss of any of the Leased Premises, any Basic Rent or any
Additional Rent to satisfy the same or to pay any damages caused by the
violation of any such Legal Requirement or by any such violation, (C) any
interference with the use or occupancy of any of the Leased Premises, (D) any
interference with the payment of any Basic Rent or any Additional Rent, and (E)
the cancellation of any fire or other insurance policy.
(b) In
no event shall Tenant pursue any contest with respect to any Imposition, Legal
Requirement, Lien, or violation, referred to above in such manner that exposes
Landlord or Lender to (i) criminal liability, penalty or sanction, (ii) any
civil liability, penalty or sanction for which Tenant has not made
provisions reasonably acceptable to Landlord and Lender or (iii) defeasance of
its interest (including the subordination of the Lien of any Mortgage to a Lien
to which such Mortgage is not otherwise subordinate prior to such contest) in
the Leased Premises.
(c) Tenant
agrees that each such contest shall be promptly and diligently prosecuted to a
final conclusion, except that Tenant shall have the right to attempt to settle
or compromise such contest through negotiations. Tenant shall pay and
save Landlord harmless against any and all losses, judgments, decrees and costs
(including all attorneys’ fees and expenses) in connection with any such contest
and shall, promptly after the final determination of such contest, fully pay and
discharge the amounts which shall be levied, assessed, charged or imposed or be
determined to be payable therein or in connection therewith, together with all
penalties, fines, interest, costs and expenses thereof or in connection
therewith, and perform all acts the performance of which shall be ordered or
decreed as a result thereof.
19. Conditional
Limitations; Default Provisions.
(a) If
any Event of Default shall have occurred, Landlord shall have the right at its
option, then or at any time thereafter, to do any one or more of the following
without demand upon or notice to Tenant:
21
(i) Landlord
may give Tenant notice of Landlord’s intention to terminate this Lease on a date
specified in such notice (which date shall be no sooner than ten (10) days after
the date of the notice). Upon the date therein specified the Term and
the estate hereby granted and all rights of Tenant hereunder shall expire and
terminate as if such date were the date hereinabove fixed for the expiration of
the Term, but Tenant shall remain liable for all its obligations hereunder
through the date hereinabove fixed for the expiration of the Term, including its
liability for Basic Rent and Additional Rent as hereinafter
provided.
(ii) Landlord
may, whether or not the Term of this Lease shall have been terminated pursuant
to clause (i)
above give Tenant notice to surrender the Leased Premises to Landlord on a date
specified in such notice (which date shall be no sooner than ten (10) days after
the date of the notice), at which time Tenant shall surrender and deliver
possession of the Leased Premises to Landlord. Upon or at any time after taking
possession of the Leased Premises, Landlord may remove any persons or property
therefrom. Landlord shall be under no liability for or by reason of
any such entry, repossession or removal. No such entry or
repossession shall be construed as an election by Landlord to terminate this
Lease unless Landlord gives a written notice of such intention to Tenant
pursuant to clause
(i) above.
(iii) After
repossession of any of the Leased Premises pursuant to clause (ii) above,
whether or not this Lease shall have been terminated pursuant to clause (i) above,
Landlord may relet the Leased Premises or any part thereof to such tenant or
tenants for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the Term) for such rent,
on such conditions (which may include concessions or free rent) and for such
uses as Landlord, in its sole discretion, may determine; and Landlord shall
collect and receive any rents payable by reason of such
reletting. The rents received on such reletting shall be applied (A)
first to the reasonable and actual expenses of such reletting and collection,
including without limitation necessary renovation and alterations
of the Leased Premises, reasonable and actual attorneys’ fees and any
reasonable and actual advertising costs and real estate commissions paid, and
(B) thereafter toward payment of all sums due or to become due to Landlord
hereunder. If a sufficient amount to pay such expenses and sums shall
not be realized or secured, then Tenant shall pay Landlord any such deficiency
monthly, and Landlord may bring an action therefor as such monthly deficiency
shall arise. Landlord shall not, in any event, be required to pay
Tenant any sums received by Landlord on a reletting of the Leased Premises in
excess of the rent provided in this Lease, but such excess shall reduce any
accrued present or future obligations of Tenant hereunder. Landlord’s
re-entry and reletting of the Leased Premises without termination of this Lease
shall not preclude Landlord from subsequently terminating this Lease as set
forth above. Landlord may make such Alterations as Landlord in its
reasonable discretion may deem advisable. Tenant agrees to pay
Landlord, as Additional Rent, immediately upon demand, all reasonable expenses
incurred by Landlord in obtaining possession, in performing Alterations and in
reletting any of the Leased Premises, including fees and commissions of
attorneys, architects, agents and brokers, to the extent such expenses are not
paid by the new tenant.
22
(iv) If
Tenant shall fail to make payment of any installment of Basic Rent or any
Additional Rent within five (5) days after the date when each such payment is
due, Tenant shall pay to Landlord, as Additional Rent, interest on the unpaid
amount of Basic Rent or Additional Rent, at the Default Rate, such interest to
accrue from the date such item of unpaid Basic Rent or Additional Rent was due
until the date paid.
(v) Landlord
may exercise any other right or remedy now or hereafter existing by law or in
equity.
(b) In
the event of any expiration or termination of this Lease or repossession of any
of the Leased Premises by reason of the occurrence of an Event of Default,
Tenant shall pay to Landlord all then accrued and unpaid Basic Rent and
Additional Rent and, as liquidated damages, on the same schedule as if no such
expiration, termination or repossession had occurred, Basic Rent, Additional
Rent and all other sums required to be paid by Tenant through what would have
been the Term in the absence of such expiration, termination or repossession,
less, in
respect of each such payment, the net proceeds of any corresponding payments, if
any, received by Landlord, as a result of its reletting the Leased Premises
pursuant to Paragraph
19(a)(iii), after deducting from such proceeds all of Landlord’s
reasonable expenses in connection with such reletting (including all reasonable
repossession costs, brokerage commissions, legal expenses, attorneys’ fees,
employees’ expenses, costs of Alteration and expenses of preparation for
reletting). Tenant hereby agrees to be and remain liable for all sums
aforesaid and Landlord may recover such damages from Tenant and institute and
maintain successive actions or legal proceedings against Tenant for the recovery
of such damages. Nothing herein contained shall be deemed to require
Landlord to wait to begin such action or other legal proceedings until the date
when the Term would have expired by limitation had there been no such Event of
Default.
(c) At
any time after such expiration or sooner termination of this Lease pursuant to
Paragraph 19 or
pursuant to law or if Landlord shall have reentered the Leased Premises, as the
case may be, as an alternative to the remedy set forth in Section 19(b),
Landlord shall be entitled to recover from Tenant and Tenant shall pay to
Landlord, on demand, as and for liquidated and agreed final damages for Tenant’s
default, the amount by which the Basic Rent, and all Additional Rent reserved
hereunder for the unexpired portion of the Term, discounted to present worth at
the annual rate of 8.22% exceeds the then fair and reasonable rental value of
the Leased Premises for the same period, discounted to present worth at the
annual rate of 8.22%, minus any such monthly deficiencies previously recovered
from Tenant under Paragraph
19(a)(iii). If any statute or rule of law governing a
proceeding in which such liquidated final damages provided for in this Paragraph 19(c) are
to be proved shall validly limit the amount thereof to an amount less than the
amount above agreed upon, Landlord shall be entitled to the maximum amount
allowable under such statute or rule of law.
23
20. Additional Rights of Landlord and
Tenant.
(a) No
right or remedy conferred upon or reserved to Landlord in this Lease is intended
to be exclusive of any other right or remedy; and each and every right and
remedy shall be cumulative and in addition to any other right or remedy
contained in this Lease. No delay or failure by Landlord or Tenant to
enforce its rights under this Lease shall be construed as a waiver, modification
or relinquishment thereof. In addition to the other remedies provided
in this Lease, Landlord and Tenant shall be entitled, to the extent permitted by
applicable law, to injunctive relief in case of the violation or attempted or
threatened violation of any of the provisions of this Lease, or to specific
performance of any of the provisions of this Lease.
(b) Tenant
hereby waives and surrenders for itself and all those claiming under it,
including creditors of all kinds, any right and privilege which it or any of
them may have under any present or future law to redeem any of the Leased
Premises or to have a continuance of this Lease after termination of this Lease
or of Tenant’s right of occupancy or possession pursuant to any court order or
any provision hereof.
(c) Landlord
hereby waives any right to distrain or levy upon Trade Fixtures or any property
of Tenant and any Landlord’s Lien or similar Lien upon Trade Fixtures and any
other property of Tenant regardless of whether such Lien is created or
otherwise.
(d) Landlord
acknowledges and agrees in the future to acknowledge (in a written form
reasonably satisfactory to Tenant and Landlord) to such persons and entities at
such times and for such purposes as Tenant may reasonably request that the Trade
Fixtures are Tenant’s property and not part of the Improvements (regardless of
whether or to what extent such Trade Fixtures are affixed to the Improvements)
or otherwise subject to the terms of this Lease.
(e) Tenant
agrees to pay to Landlord any and all reasonable costs and expenses incurred by
Landlord in connection with any litigation or other action instituted by
Landlord to enforce the obligations of Tenant under this Lease, to the extent
that Landlord has prevailed in any such litigation or other
action. Any amount payable by Tenant to Landlord pursuant to this
Paragraph 20(e)
shall be due and payable by Tenant to Landlord as Additional Rent within thirty
(30) days after a final, non-appealable judgment or decision is rendered in
favor of Landlord, or a settlement is entered into, in connection with such
litigation or other action.
(f) Landlord
agrees to pay to Tenant any and all reasonable costs and expenses incurred by
Tenant in connection with any litigation or other action instituted by Tenant to
enforce the obligations of Landlord under this Lease, to the extent that Tenant
has prevailed in any such litigation or other action. Any amount
payable by Landlord to Tenant pursuant to this Paragraph 20(f) shall
be due and payable within thirty (30) days after a final, non-appealable
judgment or decision is rendered in favor of Tenant in such litigation or other
action.
24
21. Notices. All
Notices shall be in writing and shall be deemed to have been given for all
purposes (i) three (3) days after having been sent by United States mail, by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the other party at its address as stated below, or (ii) one (1) day
after having been sent for overnight delivery by Federal Express, United Parcel
Service or other nationally recognized air courier service.
To the
Addresses stated below:
|
If
to Landlord:
|
||
|
c/o
SunTrust Equity Funding, LLC
|
||
|
303
Peachtree Street, 24th
Floor
|
||
|
MC
3951
|
||
|
Atlanta,
Georgia 30308
|
||
|
Attention: Allison
McLeod
|
||
|
Facsimile: (404)
230-1344
|
||
|
With
a copy to:
|
||
|
Greenberg
Traurig, LLP
|
||
|
77
West Wacker Drive, Suite 2500
|
||
|
Chicago,
Illinois 60601
|
||
|
Attention: Julia
R. Sarron
|
||
|
Facsimile: (312)
899-0396
|
||
|
If
to Tenant:
|
||
|
Covenant
Transport, Inc
|
||
|
400
Birmingham Highway
|
||
|
Chattanooga,
Tennessee 37419
|
||
|
Attention: Joey
B. Hogan
|
||
|
Facsimile: (423)
821-5442
|
||
|
With
a copy to:
|
||
|
Scudder
Law Firm, P.C., L.L.O.
|
||
|
411
S. 13th
Street
|
||
|
Lincoln,
Nebraska 68508
|
||
|
Attention: Mark
Scudder
|
||
|
Facsimile: (402)
435-4239
|
||
If any
Lender shall have advised Tenant by Notice in the manner aforesaid that it is
the holder of a Mortgage and states in said Notice its address for the receipt
of Notices, then simultaneously with the giving of any Notice by Tenant to
Landlord, Tenant shall send a copy of such Notice to Lender in the manner
aforesaid. For the purposes of this Paragraph 21,
any party may substitute its address by giving fifteen (15) days’ notice to the
other party in the manner provided above. Any Notice may be given on
behalf of any party by its counsel.
25
22. Estoppel Certificates. Landlord and Tenant shall at
any time and from time to time, upon not less than five (5) days’ prior written
request by the other, execute, acknowledge and deliver to the other a statement
in writing, in substantially the form of Exhibit C hereto certifying (i) that
this Lease is unmodified and in full effect (or, if there have been
modifications, that this Lease is in full effect as modified, setting forth such
modifications), (ii) the dates to which Basic Rent payable hereunder has been
paid, (iii) that to the knowledge of the signer of such certificate no default
by either Landlord or Tenant exists hereunder or specifying each such default of
which the signer may have knowledge, (iv) the remaining Term hereof, (v) with
respect to a certificate signed on behalf of Tenant, that to the knowledge of
the signer of such certificate, there are no proceedings pending or threatened
against Tenant before or by any court or administrative agency which if
adversely decided would materially and adversely affect the financial condition
and operations of Tenant or if any such proceedings are pending or threatened to
said signer’s knowledge, specifying and describing the same , and (vi) such
other matters as may reasonably be requested by the party requesting the
certificate. It is intended that any such statements may be relied
upon by Lender, the recipient of such statements or their assignees or by any
prospective purchaser, assignee or subtenant of the Leased Premises or of the
membership interest in Landlord. Landlord and Tenant agree that the
requesting party shall be responsible to reimburse the other party for all
reasonable out-of-pocket expenses incurred by such party in connection with
preparing and delivering the requested estoppel certificate.
23. Surrender and
Holding Over.
(a) Upon
the expiration or earlier termination of this Lease, Tenant shall peaceably
leave and surrender the Leased Premises to Landlord. Tenant shall
remove from the Leased Premises on or prior to such expiration or earlier
termination the Trade Fixtures and personal property which is owned by Tenant or
third parties other than Landlord, and Tenant at its expense shall, on or prior
to such expiration or earlier Termination, repair any damage caused by such
removal. Trade Fixtures and personal property not so removed at the
end of the Term or within thirty (30) days after the earlier termination of the
Term for any reason whatsoever shall become the property of Landlord, and
Landlord may thereafter cause such property to be removed from the Leased
Premises. The cost of removing and disposing of such property and repairing any
damage to any of the Leased Premises caused by such removal shall be borne by
Tenant. Landlord shall not in any manner or to any extent be
obligated to reimburse Tenant for any property which becomes the property of
Landlord as a result of such expiration or earlier termination.
(b) Any
holding over by Tenant of the Leased Premises after the expiration or earlier
termination of the Term of this Lease or any extensions thereof, with the
consent of Landlord, shall operate and be construed as tenancy from month to
month only, at one hundred twenty-five percent (125%) of the Basic Rent reserved
herein and upon the same terms and conditions as contained in this
Lease. Notwithstanding the foregoing, any holding over without
Landlord’s consent shall entitle Landlord, in addition to collecting Basic Rent
at a rate of one hundred twenty-five percent (125%) thereof, to exercise all
rights and remedies provided by law or in equity, including the remedies of
Paragraph
19(b).
26
24. No Merger of
Title. There
shall be no merger of this Lease nor of the leasehold estate created by this
Lease with the fee estate in or ownership of any of the Leased Premises by
reason of the fact that the same person, corporation, firm or other entity may
acquire or hold or own, directly or indirectly, (a) this Lease or the leasehold
estate created by this Lease or any interest in this Lease or in such leasehold
estate and (b) the fee estate or ownership of any of the Leased Premises or any
interest in such fee estate or ownership. No such merger shall occur
unless and until all Persons, corporations, firms and other entities having any
interest in (i) this Lease or the leasehold estate created by this Lease and
(ii) the fee estate in or ownership of the Leased Premises or any part thereof
sought to be merged shall join in a written instrument effecting such merger and
shall duly record the same.
25. Definition of
Landlord.
(a) Anything
contained herein to the contrary notwithstanding, any claim based on or in
respect of any liability of Landlord under this Lease shall be enforced only
against the Landlord’s interest in the Leased Premises and shall not be enforced
against the Landlord, or any member, beneficiary or shareholder of Landlord,
individually or personally.
(b) The
term “Landlord”
as used in this Lease so far as covenants or obligations on the part of Landlord
are concerned, shall be limited to mean and include only the owner or owners of
the Leased Premises or holder of the Mortgage in possession at the time in
question of the Leased Premises and in the event of any transfer or transfers of
the title of the Leased Premises, the Landlord herein named (and in case of any
subsequent transfers or conveyances, the then grantor) shall be automatically
freed and relieved from and after the date of such transfer and conveyance of
all personal liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be
performed.
26. Hazardous
Substances.
(a) Tenant
agrees that it will not on, about, or under the Leased Premises, make, store,
release, treat or dispose of any Hazardous Materials; but the foregoing shall
not prevent the use, storage or existence of any hazardous substances in the
ordinary course of Tenant’s business in accordance with applicable laws and
regulations and at levels that do not impose any clean up liability or
obligation. Tenant agrees that it will at all times comply with all
Environmental Laws.
(b) To
the extent required by any Environmental Laws, Tenant shall remove any Hazardous
Materials whether now or hereafter existing on the Leased Premises and whether
or not arising out of or in any manner connected with Tenant’s occupancy of the
Leased Premises during the Term.
(c) The
Tenant agrees that it will not install any underground storage tank at the
Leased Premises without specific, prior written approval from the
Landlord.
27
27. Entry by
Landlord. Landlord, Lender and their respective authorized
representatives shall have the right upon reasonable notice (which shall be not
less than two (2) Business Days except in the case of emergency) to enter the
Leased Premises at all reasonable business hours (and at all other times in the
event of an emergency): (a) for the purpose of inspecting the same,
for the purpose of conducting an environmental audit of the Leased Premises or
for the purpose of doing any work under Paragraph 11(c), and may take all such
action thereon as may be necessary or appropriate for any such purpose (but
nothing contained in this Lease or otherwise shall create or imply any duty upon
the part of Landlord to make any such inspection or do any such work), and (b)
for the purpose of showing the Leased Premises to prospective purchasers of the
Leased Premises or the membership interests in Landlord and mortgagees and, at
any time within twelve (12) months prior to the expiration of the Term of this
Lease, for the purpose of showing the same to prospective tenants. No
such entry shall constitute an eviction of Tenant but any such entry shall be
done by Landlord in such reasonable manner as to minimize any disruption of
Tenant’s business operation. The costs and expenses of any such inspection
pursuant to clause (b) of this Paragraph 27 shall be borne by Landlord or
Lender, as the case may be.
28. No
Usury. The intention
of the parties being to conform strictly to the applicable usury laws, whenever
any provision herein provides for payment by Tenant to Landlord of interest at a
rate in excess of the legal rate permitted to be charged, such rate herein
provided to be paid shall be deemed reduced to such legal rate.
29. Financial
Statements. Tenant shall submit, or
cause Lease Guarantor to submit, to Landlord and Lender, either in print or in
electronic form, the following financial statements, all of which must be
prepared in accordance with generally accepted accounting principles
consistently applied: (i) quarterly financial statements for Lease Guarantor,
within sixty (60) days after the end of each fiscal quarter during the Term,
certified by the chief financial officer or chief accounting officer of Lease
Guarantor, and (ii) annual financial statements for Lease Guarantor, audited by
an independent certified public accountant reasonably acceptable to Landlord,
within one hundred twenty (120) days after the end of each fiscal year during
the Term. In the event that Lease Guarantor is, or shall become, a
publicly listed company and is required to file quarterly and annual statements
with the SEC, then Tenant shall submit, or cause Lease Guarantor to submit, to
Landlord and Lender, when filed with the SEC, copies of Lease Guarantor’s forms
10Q and 10K. Notwithstanding the foregoing, Tenant shall not be
required to submit any such forms or financial statements if on or before the
applicable delivery date, such financial statements are available on EDGAR or on
the Lease Guarantor’s website.
30. Special Tax
Indemnity.
(a) Tenant hereby
represents, warrants and covenants to Landlord as follows: (i) neither the
Leased Premises as a whole nor the Fixtures constitutes “limited use property”
within the meaning of Revenue Procedure 2001-28, 2001-19 I.R.B. 1156; (ii) at no
time during the Term will the Leased Premises or any portion thereof constitute
“tax-exempt use property” within the meaning of Section 168(h) of the Code in
effect as of the date of this Lease; (iii) neither Tenant nor any Affiliate will
claim any depreciation or cost recovery deductions after the date hereof with
respect to the Leased Premises or any portion thereof, or has taken or will take
any other
action in connection with filing its or their federal income tax returns that
would be a primary factor resulting in a Loss or Inclusion (in each case, as
defined in Paragraph
30(b) below); (iv) as of the Commencement Date hereof with respect to the
Improvements and Fixtures, such Leased Premises will not require any
improvement, modification or addition in order to be rendered complete for its
intended use by Tenant; and (v) all written information supplied, caused to be
supplied or to be supplied to any appraiser by or on behalf of Tenant or any
Affiliate of Tenant with respect to the Leased Premises or any portion thereof
was or will be, as the case may be, true and accurate when
supplied.
28
(b) If,
by reason of any act or omission of Tenant or by any other Person in possession
of the Leased Premises or any portion thereof or by reason of the inaccuracy or
breach by Tenant of any of the representations, warranties and covenants
contained in this Paragraph 30, any
anticipated depreciation deductions are lost, disallowed, eliminated, reduced,
recaptured, compromised, delayed or otherwise made unavailable to Landlord (a
“Loss”) or
Landlord incurs a tax detriment because Landlord is required to include amounts
in income other than Anticipated Lease Income (an “Inclusion”), Tenant
shall, upon notice from Landlord promptly pay such Person designated by Landlord
on demand in immediately available funds, as an indemnity an amount which, on an
After-Tax Basis, shall be equal to the sum of (x) the increase in federal,
state, local and foreign income tax liability for the respective taxable year
attributable to such Loss or Inclusion plus (y) the amounts of interest,
penalties and additions to tax (including, without limitation, any additions to
tax because of underpayment of estimated tax), which are assessed against
Landlord for such taxable year by the Internal Revenue Service or any relevant
state, local or foreign taxing authority and which are attributable to such Loss
or Inclusion.
(c) Landlord
shall notify Tenant in writing of any actual or proposed claim, adjustment or
other action of any tax authority received by Landlord in writing with respect
to which Tenant may be required to provide indemnification under this Paragraph 30 (“Proposed Adjustment”)
(but failure of Landlord to so notify Tenant shall not relieve Tenant of its
obligations hereunder except to the extent that Tenant is precluded from any
contest and actually and materially harmed thereby). If Tenant shall
request in writing within thirty (30) days after Landlord’s notice described
above that the Proposed Adjustment be contested (or such shorter period in which
the Landlord may be required to take action), Landlord shall contest the
Proposed Adjustment; provided, however, that: (i)
prior to taking such action, Tenant shall have furnished Landlord with an
opinion of independent tax advisor chosen by Tenant and reasonably acceptable to
Landlord, to the effect that Landlord has a reasonable possibility of success in
contesting the claim; (ii) prior to taking such action, Tenant shall have (A)
acknowledged its obligation to indemnify Landlord hereunder in the event
Landlord does not prevail in such contest and (B) agreed to reimburse Landlord
promptly on demand for (or, if so requested by Landlord, advance) all costs and
expenses that Landlord may incur in connection with contesting such claim,
including without limitation reasonable attorneys’ and accountants’ fees and
expenses; (iii) no Event of Default shall exist and be continuing; (iv) Landlord
shall not be obligated to contest any proposed amount that is less than
$25,000.00; and (v) Landlord shall in all events control the contest, and Tenant
shall not have any right to inspect the books and records of Landlord, but shall
have reasonable opportunity to review and comment on portions of documentation,
protests, memoranda or briefs relating exclusively to a Proposed
Adjustment. In the event
Landlord pays the tax claimed and then seeks a refund, Landlord may require
Tenant to advance funds sufficient to pay the tax that would be indemnified by
Tenant hereunder if the refund claim were resolved adversely to
Landlord. To the extent the refund claim is successful, the refund
received from the taxing authority and attributable to funds advanced by Tenant
shall be refunded to Tenant, unless the refund is needed to pay an
indemnity. Notwithstanding anything to the contrary in this Paragraph 30(c),
Landlord may at any time decline to take any further action with respect to a
Proposed Adjustment or may settle any contest without the consent of Tenant;
provided, however, that if
Tenant has complied with all the terms of this Paragraph 30(c), and
Tenant has reasonably withheld in writing its consent to all or part of such
assessment or settlement based upon its evaluation of the merits, Tenant will
not be obligated to indemnify Landlord for the portion of such assessment or
settlement to which Tenant has reasonably withheld its consent. In
the case of any flow-through entity, “Landlord” shall include the member or
other equity owners of Landlord required to report the gross or net income of
Landlord and/or other items of income, expense, deduction and credit with
respect thereto, and “Landlord” and the owners thereof shall include the
consolidated group of which any such Person is a part for income tax
purposes.
29
(d) Tenant
(or its designated beneficiary) is authorized and will control the ad valorem
real property tax valuation process. This includes the right to
examine records, obtain all tax statements and discuss or appeal any tax
assessments to the proper authorities. All trim notices and notices
of valuation will be either sent directly to Tenant from the tax assessor or
will be promptly forwarded to Tenant by Landlord.
(e) Notwithstanding
anything herein to the contrary, the provisions of this Paragraph 30
shall survive the earlier termination of this Lease.
31. Withholdings.
(a) Notwithstanding
anything herein to the contrary, Tenant agrees that each payment of Basic Rent
and Additional Rent shall be free and clear of, and without deduction for any
withholdings of any nature whatsoever unless required by Applicable
Law. If any deduction or withholding is required with respect to a
payment of Basic Rent and/or Additional Rent by Tenant, Tenant shall pay an
additional amount such that the net amount actually received by the Tax
Indemnitee, after deduction or withholding, will be equal, on an After-Tax
Basis, to all such amounts that would be received by the Tax Indemnitee if no
such deduction or withholding had been required; provided, that the Tenant shall
not be obligated to pay any additional amount pursuant to this Paragraph 31 if the
requirement to make such payment is solely due to the failure of a Tax
Indemnitee to comply with Paragraph 30(c) to
obtain relief or exemption from such withholding.
(b) Notwithstanding
anything herein to the contrary, the provisions of this Paragraph 31
shall survive the earlier termination of this Lease.
30
32. Representations. Tenant
represents and warrants to Landlord and the Lenders as follows:
(a) Existence and
Standing. Tenant is a corporation duly and properly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and in the jurisdiction where the Leased Premises
is located and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
(b) Authorization and
Validity. Tenant has the power and authority and legal right
to execute and deliver this Lease and to perform its obligations
hereunder. The execution and delivery by Tenant of this Lease and the
performance of its obligations hereunder have been duly authorized by proper
corporate or other proceedings, and this Lease constitutes legal, valid and
binding obligations of Tenant enforceable against Tenant in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors’ rights
generally.
(c) No
Conflict. The execution, delivery and performance by Tenant of
this Lease and the transactions contemplated hereby do not and will not (i)
violate any Law or the organizational documents of Tenant or any agreement,
indenture or other contract to which Tenant is a party or is subject, (ii)
result in or require the creation or imposition of any Lien whatsoever on the
Leased Premises or upon any of the properties or assets of Tenant, or (iii)
require any approval of stockholders which has not been obtained and is in full
force and effect.
(d) Governmental
Consents. Except as have been made, obtained or given, and are
in full force and effect, no filing or registration with, consent or approval
of, or notice to, with or by any Governmental Authority, is required to
authorize, or is required in connection with, the execution, delivery and
performance by Tenant of this Lease or the legality, validity, binding effect or
enforceability of this Lease.
(e) Governmental
Regulation. Neither Tenant nor any Subsidiary of Tenant is an
“investment company” or a company “controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as
amended.
(f) Requirements of
Law. Tenant and each Subsidiary of Tenant and each Person
acting on behalf of any of them is in compliance with all Legal Requirements
applicable to them and their respective businesses to the extent the failure to
be in such compliance has had, or could have, a material adverse effect on
Tenant’s financial condition, operations, assets or prospects, or Tenant’s
ability to perform its obligations under this Lease.
(g) Hazardous
Materials. (i) To the best knowledge
of Tenant, there are no Hazardous Materials present at, upon, under or within
the Leased Premises or released or transported to or from the Leased Premises
(except for Hazardous Materials that are present in the ordinary course of
Tenant’s business on the Leased Premises in full compliance with all Legal
Requirements), except as set forth in that certain Phase I Environmental
Assessment of the Leased Premises obtained by Landlord on or prior to the
Commencement Date.
31
(ii) No
governmental actions have been taken or are in process or, to the Tenant’s
actual knowledge, have been threatened, which could reasonably be expected to
subject the Leased Premises or any Indemnitee to any Claims or Liens under any
Environmental Law which would have a materially adverse effect on such
Indemnitee or the Leased Premises.
(iii) Tenant
has, or will obtain on or before the date required by Law, all environmental
permits necessary to operate the Leased Premises in accordance with
Environmental Laws and, to the best knowledge of Tenant, is complying with and
has at all times complied with all such environmental permits.
(iv) To
the best of Tenant’s knowledge, no material notice, notification, demand,
request for information, citations, summons, complaint or order has been issued
or filed to or with respect to Tenant, no penalty has been assessed on Tenant
and no investigation or review is pending or threatened by any Governmental
Authority or other Person in each case relating to the Leased Premises with
respect to any alleged material violation or liability of Tenant under any
Environmental Law. To the best of Tenant’s knowledge, no material
notice, notification, demand, request for information, citations, summons,
complaint or order has been issued or filed to or with respect to any other
Person, no material penalty has been assessed on any other Person and no
investigation or review is pending or threatened by any Governmental Authority
or other Person relating to the Leased Premises with respect to any alleged
material violation or liability under any Environmental Law by any other
Person.
(v) To
the best of Tenant’s knowledge, the Leased Premises and each portion thereof are
presently in compliance in all material respects with all Environmental Laws,
and there are no present or past facts, circumstances, activities, events,
conditions or occurrences regarding the Leased Premises (including without
limitation the release or presence of Hazardous Materials) that could reasonably
be anticipated to (A) form the basis of a material Claim against the Leased
Premises, any Indemnitee or Tenant, (B) cause the Leased Premises to be subject
to any restrictions on ownership, occupancy, use or transferability under any
Environmental Law, (C) require the filing or recording of any notice or
restriction relating to the presence of Hazardous Materials in the real estate
records in the county or other appropriate municipality in which the Leased
Premises is located, or (D) prevent or interfere with the continued operation
and maintenance of the Leased Premises as contemplated by this
Lease.
(h) Leased Premises. To the
best of Tenant’s knowledge, the present condition and use of the Leased Premises
conforms in all material respects with all conditions or requirements of all
existing permits and approvals issued with respect to the Leased Premises, and,
to the best of Tenant’s knowledge, the present use of each Leased
Premises does not, in any material respect, violate any Law. To the
best of Tenant’s knowledge, no material notices, complaints of orders or
violation or non-compliance have been issued or threatened or contemplated by
any Governmental Authority with respect to the Leased Premises or any present or
intended future use thereof. To the best of Tenant’s knowledge, all
agreements, easements and other rights, public or private, which are necessary
to permit the lawful use and operation of the Leased Premises
as Tenant intends to use the Leased Premises under this Lease and which are
necessary to permit the lawful intended use and operation of all presently
intended utilities, driveways, roads and other means of egress and ingress to
and from the same have been, or will be, obtained and are in full force and
effect, and Tenant has no knowledge of any pending modification or cancellation
of any of the same.
32
33. Duty of First
Offer.
(a) Except
in transactions consummated prior to the second (2nd)
anniversary of the Commencement Date, Landlord shall not at any time during the
Term sell or convey or agree to sell or convey the Leased Premises (except to
SunTrust Banks, Inc. or any Affiliate thereof) without first having complied
with the requirements of this Paragraph
33. Provided that no Event of Default exists or has occurred
and is continuing, if Landlord shall desire to sell or convey the Leased
Premises, then Landlord shall submit a written offer to sell the Leased Premises
to Tenant setting forth the price and terms of such proposed sale (the “Offer”) to Tenant and
shall give Tenant thirty (30) days within which to elect to purchase the Leased
Premises on the precise terms and conditions of the Offer (except that if the
Offer shall be in whole or in part for consideration other than cash, Tenant
shall have the right to pay in cash the fair market value of such non-cash
consideration). If Tenant elects to so purchase the Leased Premises
Tenant shall give to Landlord written notice thereof (“Acceptance Notice”)
and the closing shall be held within sixty (60) days after the date of the
Acceptance Notice, whereupon Landlord shall convey the Leased Premises to
Tenant. At the closing Landlord shall deliver to Tenant a special
warranty deed (or local equivalent), sufficient to convey to Tenant fee simple
title to the Leased Premises free and clear of all Liens, restrictions and
encumbrances, except for the Permitted Encumbrances, Liens or encumbrances
created, suffered or consented to in writing by Tenant or arising by reason of
the failure of Tenant to have observed or performed any term, covenant or
agreement herein to be observed or performed by Tenant, the Lien of any
Impositions then affecting the Leased Premises, this Lease and, if the Leased
Premises are to be conveyed subject to the outstanding balance of the Loan, the
Mortgage and all other Loan documents. In the event Tenant shall
elect not to so purchase the Leased Premises, Landlord may thereafter sell the
Leased Premises to any party without offering it to Tenant, provided that (i) the
purchase price shall not be less than 95% of that set forth in the Offer, (ii)
the material terms of such purchase shall not be substantially more favorable to
the buyer than those set forth in the Offer and (iii) the purchase is
consummated within eighteen (18) months after Landlord’s submission of the Offer
to Tenant.
(b) Notwithstanding
anything to the contrary herein, the provisions of this Paragraph 33
shall not apply to (i) any sale or conveyance of the Leased Premises in
foreclosure sale (or similar proceeding) of a bona-fide mortgage or deed of
trust or to any conveyance in lieu of foreclosure of such a mortgage or deed of
trust, or to any transfer subsequent to a foreclosure sale or deed in lieu
thereof in connection with the requirements of Standard & Poor’s, Moody’s or
any other Rating Agencies if the Loan is securitized, (ii) any sale or
conveyance of the Leased Premises which occurs during the existence of an Event
of Default hereunder, or (iii) any sale, transfer, assignment or pledge of the
beneficial ownership interest, membership interest, partnership interest or
other equity interest in Landlord, or the change of the manager or other
controlling person of the Landlord, or any transfer, sale or other disposition
of the Leased Premises to SunTrust Banks, Inc. or any Affiliate
thereof.
33
(c) If
Landlord sells the Leased Premises (to Tenant or anyone else) Tenant hereby
acknowledges and consents as follows: (i) any such sale or conveyance
during any period in which the Loan may not be prepaid or defeased, as the case
may be, shall be subject to the outstanding balance of the Loan (and the
purchase price payable to Landlord shall take into account such outstanding
balance), and, if Tenant shall be entitled to, and shall, exercise its rights
under this Paragraph
33, the Loan, Note, Mortgage and other Loan documents will be assumed by
Tenant, and the Lien of the Mortgage may not be released during such period;
(ii) such sale shall be in accordance with and subject to the terms and
provisions of the Note, the Mortgage and the other Loan Documents, whether such
purchase contemplates the purchase of the Leased Premises subject to the Lien of
the Mortgage or for a release of the Lien of the Mortgage; and (iii) if the Lien
of the Mortgage is not released in connection with such sale of the Leased
Premises, Tenant shall acquire the Leased Premises through another entity, no
merger of title shall occur and this Lease and any guaranty of this Lease will
remain in full force and effect in accordance with their terms.
(d) If
Tenant shall have agreed to purchase the Leased Premises at a time when the Loan
may be prepaid or defeased, as the case may be, Tenant may purchase the Leased
Premises for cash free and clear of the Mortgage but only if (i) the cash
portion of the Offer is increased by an amount equal to the principal and
interest secured by the Mortgage, and (ii) Tenant pays (in addition to the
purchase price) all prepayment premiums or defeasance deposits, yield
maintenance amounts, satisfaction fees and any and all other sums which become
owing as a result of such prepayment or defeasance, as the case may be; all to
the end and effect that Landlord will net the same amount as Landlord would have
netted had the Leased Premises been sold under and subject to the Lien of the
Mortgage.
34. Separability. Each and
every covenant and agreement contained in this Lease is, and shall be construed
to be, a separate and independent covenant and agreement, and the breach of any
such covenant or agreement by Landlord shall not discharge or relieve Tenant
from its obligation to perform the same. If any term or provision of
this Lease or the application thereof to any provision of this Lease or the
application thereof to any Person or circumstances shall to any extent be
invalid and unenforceable, the remainder of this Lease, or the application of
such term or provision to such Person or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and shall be enforced to the
extent permitted by law.
35. Miscellaneous.
(a) The
paragraph headings in this Lease are used only for convenience in finding the
subject matters and are not part of this Lease or to be used in determining the
intent of the parties or otherwise interpreting this Lease.
(b) As
used in this Lease the singular shall include the plural as the context requires
and the following words and phrases shall have the following meanings: (i)
“including” shall mean “including but not limited to”; (ii) “provisions” shall
mean “provisions, terms, agreements, covenants and/or conditions”; and (iii)
“obligation” shall mean “obligation, duty, agreement, liability, covenant or
condition”.
34
(c) Any
act which Landlord is permitted to perform under this Lease may be performed at
any time and from time to time by Landlord or any person or entity designated by
Landlord. Any act which Tenant is required to perform under this
Lease shall be performed at Tenant’s sole cost and expense.
(d) This
Lease may be modified, amended, discharged or waived only by an agreement in
writing signed by both parties hereto.
(e) The
covenants of this Lease shall run with the Land and bind Tenant, the successors
and assigns of Tenant and all present and subsequent encumbrances and subtenants
of any of the Leased Premises, and shall inure to the benefit of and bind
Landlord, its successors and assigns.
(f) This
Lease will be simultaneously executed in several counterparts, each of which
when so executed and delivered shall constitute an original, fully enforceable
counterpart for all purposes.
(g) This
Lease shall be governed by and construed according to the laws of the State in
which the Leased Premises is located.
35
IN
WITNESS WHEREOF, Landlord and Tenant have caused this instrument to be executed
as of the day and year first above written.
|
CT
CHATTANOOGA TN, LLC, as Landlord
|
||
|
By:
|
SunTrust
Equity Funding, LLC, its Manager
|
|
|
By:
|
/s/R. Todd Shutley | |
|
Name:
|
R.
Todd Shutley
|
|
|
Title:
|
Senior
Vice President and Manager
|
|
LEASE
AGREEMENT
S-1
|
COVENANT
TRANSPORT, INC., a Tennessee corporation, as Tenant
|
||
|
By:
|
/s/Joey B. Hogan | |
|
Name:
|
Joey B. Hogan | |
|
Title:
|
EVP/CFO | |
LEASE AGREEMENT
S-2
EXHIBIT
A
LEGAL
DESCRIPTION
BEING A
PART of the Covenant Transport, Inc. property described in Deed Book 4443, Page
260, of the Register’s Office of Hamilton County, Tennessee, located in the City
of Chattanooga, Hamilton County, Tennessee, and being more particularly
described as follows:
BEGINNING
AT AN OLD PIPE, said point being in the line dividing Sections Thirteen (13) and
Fourteen (14), Township Two (2) South, Range Five (5), West of the Basis Line,
Ocoee District, the said iron pipe also marking the Northwestern corner of Lot
24, Interchange City, as shown on plat recorded in Plat Book 34, Page 22, in the
Register’s Office of Hamilton County, Tennessee, said point also being in the
Southern right-of-way of New Cummings Road; thence South 24 degrees 38 minutes
31 seconds West, along the dividing line of said Sections 13 and 14, a distance
of 2,285.13 feet to a 5/8 inch rebar with cap set; thence leaving said Section,
North 46 degrees 32 minutes 46 seconds West, a distance of 1,582.91 feet to an
old rebar found, said point being in the Eastern right-of-way of U.S. Highway
No. 11 (Birmingham Highway); thence, as follows; with a curve to the right, said
curve having a delta angle of 04 degrees 41 minutes 18 seconds, a radius of
5,690.00 feet, a length of 465.58 feet, and a chord of North 43 degrees 11
minutes 06 seconds East, 465.45 feet to a mag nail set; thence South 44 degrees
28 minutes 15 seconds East, a distance of 50.00 feet to a 5/8 inch rebar with
cap set; thence, with a curve to the right, said curve having a delta angle of
05 degrees 41 minutes 23 seconds, a radius of 5,643.85 feet, a length of 560.46
feet to a 5/8 inch rebar with cap set, said point being the end point of said
curve; thence North 51 degrees 13 minutes 15 seconds East, a distance of 60.81
feet to a 5/8 inch rebar with cap set; thence, leaving said right-of-way
crossing the Covenant Transport, Inc. property, South 78 degrees 34 minutes 19
seconds East, a distance of 92.12 feet, to a 5/8 inch rebar with cap set; thence
South 68 degrees 35 minutes 08 seconds East, a distance of 147.50 feet, to a 5/8
inch rebar with cap set; thence South 74 degrees 19 minutes 42 seconds East, a
distance of 225.85 feet, to a 5/8 inch rebar with cap set; thence North 34
degrees 00 minutes 05 seconds East, a distance of 431.88 feet, to a 5/8 inch
rebar with cap set; thence North 72 degrees 56 minutes 18 seconds East, a
distance of 53.57 feet to a 5/8 inch rebar with cap set; thence South 66 degrees
11 minutes 11 seconds East, a distance of 271.94 feet, to a 5/8 inch rebar with
cap set; thence South 85 degrees 56 minutes 14 seconds East, a distance of 56.12
feet, to a 5/8 inch rebar with cap set; thence North 50 degrees 53 minutes 23
seconds East, a distance of 51.03 feet, to a 5/8 inch rebar with cap set; thence
North 29 degrees 48 minutes 32 seconds East, a distance of 193.24 feet, to a 5/8
inch rebar with cap set, said point being in the Southern right-of-way of New
Cummings Road; thence South 63 degrees 18 minutes 12 seconds East, along said
right-of-way, a distance of 116.36 feet, to the POINT OF
BEGINNING. All as shown on that Survey prepared by Wesley M. James,
R.L.S. Tennessee No. 811, dated January 26, 2006.
Being a
portion of the property conveyed to Covenant Transport, Inc., a Tennessee
Corporation, by Warranty Deed from John C. Grant, Jr., unmarried, only child and
sole heir at law of John C. Grant, recorded December 14, 1994 in Book 4443, Page
260, in the Register’s Office of Hamilton County, Tennessee.
EXHIBIT
B
BASIC
RENT
Basic
Rent for (i) the period from the Commencement Date to March 31, 2007 shall be at
the annual amount equal to $2,466,000 and (ii) for each subsequent year
(including during any Renewal Term) shall be at an annual amount equal to the
sum of (A) the annual Basic Rent for the immediately preceding year plus (B) the
Adjustment Amount for such year. The amount of Basic Rent shall be
adjusted pursuant to the foregoing sentence as of each April 1st. The
“Adjustment
Amount” any year shall be an amount equal to the annual Basic Rent for
the immediately preceding year, times
1%.
The Basic
Rent payable on any Basic Rent Payment Date shall be one-twelfth of the then
annual rent calculated pursuant to the foregoing paragraph.
EXHIBIT
C
FORM
OF TENANT ESTOPPEL
(Chattanooga,
Tennessee)
The
undersigned, Covenant Transport, Inc., a Tennessee corporation (“Tenant”), hereby
certifies to Morgan Stanley Mortgage Capital Inc. (“Lender”), as
follows:
1. The
undersigned is the Tenant under that certain Lease Agreement dated as of April
3, 2006 (the “Lease”) executed by
CT Chattanooga TN, LLC as landlord (the “Landlord”), and the
undersigned, as tenant, demising certain premises in Chattanooga, Tennessee more
fully described therein (the “Premises”). Capitalized
terms used in this Certificate and not otherwise defined herein shall have the
meanings assigned thereto in the Lease.
2. Tenant
has paid all Basic Rent through May 1, 2006. The current Basic Rent
for the Premises is $205,500 per month. No Basic Rent has been paid
more than one (1) month in advance.
3. The
current term of the Lease will expire pursuant to its terms on March 31,
2026. Tenant has an option to renew the Term of the Lease for eight
(8) additional terms of five (5) years.
4. There
are no offsets, deductions or credits against rentals payable under the Lease
and no unexpired free rent periods or rental concessions or abatements have been
granted to Tenant.
5. Tenant
is not in default in the payment or performance of any of its obligations under
the Lease and there is no condition existing which with the passing of time or
the giving of notice, or both, would constitute a default or Event of Default
under the Lease.
6. To
the best knowledge of the undersigned, the Landlord is not in default in the
payment or performance of its obligations under the Lease and there is no
condition existing which with the passing of time or the giving of notice, or
both, would constitute a default by Landlord under the Lease.
6. This
Certificate may be relied upon and inure to the benefit of Landlord, Lender and
their affiliates, designees and agents and their successors and
assigns.
7. The
Lease is in full force and effect, and the Lease has not been modified, amended
or altered in writing or otherwise.
8. To
the knowledge of the undersigned, there are no proceedings pending or threatened
against Tenant before or by any court or administrative agency which if
adversely decided would materially and adversely affect the financial condition
and operations of Tenant.
Nothing
in this Estoppel Certificate modifies the Lease or any of its
terms.
Dated: May
__, 2006
|
TENANT
|
||
|
Covenant
Transport, Inc.
|
||
|
a
Tennessee corporation
|
||
|
By:
|
||
|
Print
Name:
|
||
|
Title:
|
||
41
EXHIBIT
D
FORM
OF LANDLORD WAIVER
THIS
LANDLORD’S WAIVER (this “Agreement”) made as
of this ___ day of ______________, 200_ by CT CHATTANOOGA TN, LLC, a Delaware
limited liability company (the “Landlord”), to
_______________________________ (the “Bank”), in its
capacity as lender under that certain [Credit Agreement] dated as of
_______________________, 200_ with Covenant Transport, Inc., a Tennessee
corporation (“Covenant
Transport”).
BACKGROUND
Covenant
Transport is or may become indebted to the Bank for certain credit facilities
(the “Loans”). Under
the provisions of a certain lease agreement (as amended from time to time, the
“Lease”) dated
as of March 15, 2006, between the Landlord and Covenant Transport, the Landlord
has leased certain property located in Chattanooga, Tennessee and more fully
described on Exhibit
A hereto (the “Premises”) to
Covenant Transport. Because part of Covenant Transport’s inventory,
equipment and other tangible personal property may be located on or affixed to
the Premises, the Bank has required, as a condition to making the Loans, the
execution and delivery of this Agreement by the Landlord.
NOW,
THEREFORE, to induce the Bank to make the Loans available to Covenant Transport,
the Landlord, intending to be legally bound hereby covenants and agrees with the
Bank as follows:
1. This
waiver shall apply to any of Covenant Transport’s inventory, equipment and other
tangible personal property located on, at or about or affixed to the Premises,
so long as the same may be readily removed without material damage to the
Premises, and if affixed to the Premises, have not been financed by the Landlord
and are considered to be Covenant Transport’s trade fixtures (the “Assets”).
2. The
Landlord hereby waives and releases in favor of and assigns to the
Bank (a) any and all rights of distraint, levy and execution which
the Landlord may now or hereafter have against the Assets, (b) any and all liens
and security interests which the Landlord may now or hereafter have on the
Assets, and (c) any and all other claims of every nature whatsoever which the
Landlord may now or hereafter have on or against the Assets for any rent or
other sums due or to become due to the Landlord by Covenant Transport under the
provisions of the Lease or otherwise.
3. The
Landlord shall notify the Bank in writing of any default by Covenant Transport
under the provisions of the Lease of which the Landlord has actual knowledge and
with respect to which the Landlord contemplates terminating the
Lease. Any such notice shall be sent by certified mail, postage
prepaid, or overnight courier service to the Bank at
_______________________________________________.
4. If
Covenant Transport defaults on any of its obligations to the Bank during the
term of the Lease, and the Bank undertakes to enforce its security interest in
the Assets, the Landlord will permit the Bank to remain on the Premises for
thirty (30) days after the Bank declares the default, provided the Bank
pays the rental payments due under the Lease for the period of time the Bank
uses the Premises, and/or, at the Bank’s option, will permit the Bank to remove
the Assets from the Premises within a reasonable time, not to exceed thirty (30)
days after the Bank declares the default, provided the Bank
pays the rental payments due under the Lease for the period of time the Bank
uses the Premises and the Bank repairs any damages to the Premises made during
the period of time the Bank uses the Premises, and Landlord will not
intentionally hinder the Bank’s actions in enforcing its liens on the
Assets.
5. The
Landlord shall notify any purchaser of the Premises and any subsequent mortgagee
or any other holder of any lien, security interest or encumbrance on the
Premises of the existence of this Agreement.
6. The
Landlord hereby certifies that the Landlord has full power and authority to
execute this Agreement and that it has legal title to the Premises.
7. The
Landlord further certifies that as of the date hereof it has granted no
mortgages, deeds of trust or other encumbrances on the Premises that create a
lien on, or security interest in, the Assets [other than
_________________________________].
8. This
Agreement shall continue in effect during the term of the Credit Agreement and
any extensions, renewals, refinancings or modifications thereof and any
substitutes therefor of which the Bank has notified the Landlord in writing,
shall be binding upon the successors, assigns and transferees of the Landlord,
and shall inure to the benefit of the Bank and its successors and
assigns. The Landlord hereby waives notice of the Bank’s acceptance
of and reliance on this Agreement.
IN
WITNESS WHEREOF, the Landlord has caused this Agreement to be executed, sealed
and delivered on the day and year first written above.
|
LANDLORD:
|
||||
|
CT
CHATTANOOGA TN, LLC
|
||||
|
WITNESS/ATTEST:
|
By:
|
SunTrust
Equity Funding, LLC, its manager
|
||
|
By:
|
(Seal)
|
|||
|
Name:
|
R.
Todd Shutley
|
|||
|
Title:
|
Senior
Vice President and Manager
|
|||
|
Address:
|
303
Peachtree Street, 24th
Floor
|
|||
|
MC
3951
|
||||
|
Atlanta,
Georgia 30308
|
||||
|
ACKNOWLEDGMENT
TO BE MADE BY LANDLORD
|
||||
|
STATE
OF ___________________
|
)
|
|||
|
)
ss.
|
|
|||
|
COUNTY
OF _________________
|
)
|
|||
|
I HEREBY CERTIFY that on this
_____ day of ____________, 200__, before me a Notary Public fo the state
and county aforesaid, personally appeared ______________, who is
personally known to me or has produced _____________ as
identification.
|
||||
|
IN WITNESS WHEREOF, I have
hereunto set my hand and Notarial Seal, the day and year first above
written.
|
||||
|
Notary
Public
|
||||
|
Print
Name:
|
||||
|
Serial
No.:
|
||||
|
My
commission expires on:
|
||||
CONSENT
The
undersigned hereby consents to the terms and conditions of this Landlord’s
Waiver as set forth above.
|
LESSEE:
|
||||
|
ATTEST"
|
COVENANT
TRANSPORT, INC.
|
|||
|
By:
|
(Seal)
|
|||
|
Title:
|
EXHIBIT
A
LEGAL
DESCRIPTION
[Attach Legal Description]
EXHIBIT
E
FORM
OF SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT
AGREEMENT
____________________________________________
(Lender)
- and
-
COVENANT
TRANSPORT, INC.
(Tenant)
– and
–
CT
CHATTANOOGA TN, LLC
(Landlord)
____________________________________________
SUBORDINATION,
NON-DISTURBANCE
AND
ATTORNMENT AGREEMENT
____________________________________________
Dated:
Location:
Section:
Block:
Lot:
County:
PREPARED
BY AND UPON
RECORDATION
RETURN TO:
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (as amended from time to
time, this “Agreement”)
is made as of the _____ day of _______________, 20__ by and among
_____________________________________________, a __________________________,
having an address at _______________________________________________, (“Lender”),
COVENANT TRANSPORT, INC., a Tennessee corporation, having an address at 400
Birmingham Highway, Chattanooga TN 37419 (“Tenant”)
and CT CHATTANOOGA TN, LLC, a Delaware limited liability company, having an
address at 303 Peachtree Street, 24th
Floor, MC 3951, Atlanta, Georgia 30308 (“Landlord”).
RECITALS:
A. Lender
is the present owner and holder of a certain [mortgage/deed of trust/deed to
secure debt] and security agreement (the “Security
Instrument”) dated as of ____________, ____, given by Landlord to Lender
which encumbers the fee estate of Landlord in certain premises described in
Exhibit A
attached hereto (the “Property”)
and which secures the payment of certain indebtedness owed by Landlord to Lender
evidenced by a certain promissory note dated as of ____________, _____, given by
Landlord to Lender (the “Note”);
B. Tenant
is the holder of a leasehold estate in the Property under and pursuant to the
provisions of a certain lease dated as of March 15, 2006 between Landlord (or
Landlord’s predecessor-in-interest), as landlord, and Tenant (or Tenant’s
predecessor-in-interest), as tenant (as heretofore or hereafter amended, the
“Lease”);
and
C. Tenant
has agreed to subordinate the Lease to the Security Instrument and to the lien
thereof and Lender has agreed to grant non-disturbance to Tenant under the Lease
on the terms and conditions hereinafter set forth.
AGREEMENT:
For good
and valuable consideration, Tenant, Lender and Landlord agree as
follows:
1. Subordination. The
Lease and all of the terms, covenants and provisions thereof and all rights,
remedies and options of Tenant thereunder are and shall at all times continue to
be subject and subordinate in all respects to the terms, covenants and
provisions of the Security Instrument and to the lien thereof, including without
limitation, all renewals, increases, modifications, spreaders, consolidations,
replacements and extensions thereof and to all sums secured thereby and advances
made thereunder with the same force and effect as if the Security Instrument had
been executed, delivered and recorded prior to the execution and delivery of the
Lease.
2. Non-Disturbance. If
any action or proceeding is commenced by Lender for the foreclosure of the
Security Instrument or the sale of the Property, Tenant shall not be named as a
party therein unless such joinder shall be required by law, provided, however, such joinder
shall not result in the termination of the Lease or disturb the Tenant’s
possession or use of the premises demised thereunder, and the sale of the
Property in any such action or proceeding and the exercise by Lender of any of
its other rights under the Note or the Security Instrument shall be made subject
to all rights of Tenant under the Lease, provided that at the
time of the commencement of any such action or proceeding or at the time of any
such sale or exercise of any such other rights (a) the term of the Lease shall
have commenced pursuant to the provisions thereof, (b) Tenant shall be in
possession of the premises demised under the Lease, (c) the Lease shall be in
full force and effect and (d) Tenant shall not be in default under any of the
terms, covenants or conditions of the Lease or of this Agreement on Tenant’s
part to be observed or performed.
3. Attornment. If
Lender or any other subsequent purchaser of the Property shall become the owner
of the Property by reason of the foreclosure of the Security Instrument or the
acceptance of a deed or assignment in lieu of foreclosure or by reason of any
other enforcement of the Security Instrument (Lender or such other purchaser
being hereinafter referred as “Purchaser”), and the
conditions set forth in Section 2 above have
been met at the time Purchaser becomes owner of the Property, the Lease shall
not be terminated or affected thereby but shall continue in full force and
effect as a direct lease between Purchaser and Tenant upon all of the terms,
covenants and conditions set forth in the Lease and in that event, Tenant agrees
to attorn to Purchaser and Purchaser, by virtue of such acquisition of the
Property, shall be deemed to have agreed to accept such attornment, provided, however, that
Purchaser shall not be (a) liable for the failure of any prior landlord (any
such prior landlord, including Landlord and any successor landlord, being
hereinafter referred to as a “Prior Landlord”) to perform
any of its obligations under the Lease which have accrued prior to the date on
which Purchaser shall become the owner of the Property, provided that the
foregoing shall not limit Purchaser’s obligations under the Lease to correct any
conditions of a continuing nature that (i) existed as of the date Purchaser
shall become the owner of the Property and (ii) violate Purchaser’s obligations
as landlord under the Lease; provided further, however, that
Purchaser shall have received written notice of such omissions, conditions or
violations and has had a reasonable opportunity to cure the same, all pursuant
to the terms and conditions of the Lease, (b) subject to any offsets, defenses,
abatements or counterclaims which shall have accrued in favor of Tenant against
any Prior Landlord prior to the date upon which Purchaser shall become the owner
of the Property, (c) liable for the return of rental security deposits, if any,
paid by Tenant to any Prior Landlord in accordance with the Lease unless such
sums are actually received by Purchaser, (d) bound by any payment of rents,
additional rents or other sums which Tenant may have paid more than one (1)
month in advance to any Prior Landlord unless (i) such sums are actually
received by Purchaser or (ii) such prepayment shall have been expressly approved
of by Purchaser, (e) bound by any agreement terminating or amending or modifying
the rent, term, commencement date or other material term of the Lease, or any
voluntary surrender of the premises demised under the Lease, made without
Lender’s or Purchaser’s prior written consent prior to the time Purchaser
succeeded to Landlord’s interest or (f) bound by any assignment of the Lease or
sublease of the Property, or any portion thereof, made prior to the time
Purchaser succeeded to Landlord’s interest other than if pursuant to the
provisions of the Lease. In the event that any liability of Purchaser
does arise pursuant to this Agreement, such liability shall be limited and
restricted to Purchaser’s interest in the Property and shall in no event exceed
such interest. Alternatively, upon the written request of Lender or its
successors or assigns, Tenant shall enter into a new lease of the Premises with
Lender or such successor or assign for the then remaining term of the Lease,
upon the same terms and conditions as contained in the Lease, except as
otherwise specifically provided in this Agreement.
4. Notice to
Tenant. After
notice is given to Tenant by Lender that the Landlord is in default under the
Note and the Security Instrument and that the rentals under the Lease should be
paid to Lender pursuant to the terms of the assignment of leases and rents
executed and delivered by Landlord to Lender in connection therewith, Tenant
shall thereafter pay to Lender or as directed by the Lender, all rentals and all
other monies due or to become due to Landlord under the Lease and Landlord
hereby expressly authorizes Tenant to make such payments to Lender and hereby
releases and discharges Tenant from any liability to Landlord on account of any
such payments.
5. Lender’s
Consent. Tenant
shall not, without obtaining the prior written consent of Lender, (a) enter into
any agreement amending, modifying or terminating the Lease, (b) prepay any of
the rents, additional rents or other sums due under the Lease for more than one
(1) month in advance of the due dates thereof, (c) voluntarily surrender the
premises demised under the Lease or terminate the Lease (other than pursuant to
the provisions of the Lease) without cause or shorten the term thereof, or (d)
assign the Lease or sublet the premises demised under the Lease or any part
thereof other than pursuant to the provisions of the Lease; and any such
amendment, modification, termination, prepayment, voluntarily surrender,
assignment or subletting, without Lender’s prior consent, shall not be binding
upon Lender.
6. Notice to Lender and Right
to Cure. Tenant
shall notify Lender of any default by Landlord under the Lease and, if such
default gives rise to a right by Tenant to cancel the Lease or abate the rent
therunder, agrees that, notwithstanding any provisions of the Lease to the
contrary, no notice of cancellation thereof or of an abatement shall be
effective unless Lender shall have received notice of default giving rise to
such cancellation or abatement and (i) in the case of any such default that can
be cured by the payment of money, until sixty (60) days shall have elapsed
following the giving of such notice or (ii) in the case of any other such
default, until a reasonable period for remedying such default shall have elapsed
following the giving of such notice and following the time when Lender shall
have become entitled under the Security Instrument to remedy the same, including
such time as may be necessary to acquire possession of the Property if
possession is necessary to effect such cure, provided Lender, with reasonable
diligence, shall (a) pursue such remedies as are available to it under the
Security Instrument so as to be able to remedy the default, and (b) thereafter
shall have commenced and continued to remedy such default or cause the same to
be remedied. Notwithstanding the foregoing, Lender shall have no
obligation to cure any such default.
7. Notices. All
notices or other written communications hereunder shall be deemed to have been
properly given (i) upon delivery, if delivered in person or by facsimile
transmission with receipt acknowledged by the recipient thereof and confirmed by
telephone by sender, (ii) one (1) Business Day (hereinafter defined) after
having been deposited for overnight delivery with any reputable overnight
courier service, or (iii) three (3) Business Days after having been deposited in
any post office or mail depository regularly maintained by the U.S. Postal
Service and sent by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
|
If
to Tenant:
|
||
|
Attention:
|
||
|
Facsimile
No.
|
||
|
If
to Landlord:
|
||
|
Attention:
|
||
|
Facsimile
No.
|
||
|
If
to Lender:
|
||
|
Attention:
|
||
|
Facsimile
No.
|
||
or addressed as such party may from time to
time designate by written notice to the other parties. For purposes
of this Section
7, the term “Business Day” shall
mean a day on which commercial banks are not authorized or required by law to
close in the state where the Property is located. Either party by
notice to the other may designate additional or different addresses for
subsequent notices or communications.
8. Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of Lender, Tenant and
Purchaser and their respective successors and assigns.
9. Governing
Law. This
Agreement shall be deemed to be a contract entered into pursuant to the laws of
the State where the Property is located and shall in all respects be governed,
construed, applied and enforced in accordance with the laws of the State where
the Property is located.
10. Miscellaneous. This
Agreement may not be modified in any manner or terminated except by an
instrument in writing executed by the parties hereto. If any term,
covenant or condition of this Agreement is held to be invalid, illegal or
unenforceable in any respect, this Agreement shall be construed without such
provision. This Agreement may be executed in any number of duplicate
originals and each duplicate original shall be deemed to be an
original. This Agreement may be executed in several counterparts,
each of which counterparts shall be deemed an original instrument and all of
which together shall constitute a single Agreement. The failure of
any party hereto to execute this Agreement, or any counterpart hereof, shall not
relieve the other signatories from their obligations
hereunder. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice
versa.
11. Joint and Several
Liability. If
Tenant consists of more than one person, the obligations and liabilities of each
such person hereunder shall be joint and several.
12. Definitions. The
term “Lender”
as used herein shall include the successors and assigns of Lender and any
person, party or entity which shall become the owner of the Property by reason
of a foreclosure of the Security Instrument or the acceptance of a deed or
assignment in lieu of foreclosure or otherwise. The term “Landlord” as used
herein shall mean and include the present landlord under the Lease and such
landlord’s predecessors and successors in interest under the Lease, but shall
not mean or include Lender. The term “Property” as used
herein shall mean the Property, the improvements now or hereafter located
thereon and the estates therein encumbered by the Security
Instrument.
13. Further
Acts. Tenant
will do, execute, acknowledge and deliver all and every such further acts and
assurances as Lender shall, from time to time, require, for the better assuring
and confirming unto Lender the property and rights hereby intended now or
hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of this Agreement or for filing, registering or
recording this Agreement, or for complying with all applicable
laws.
14. Limitations on Purchaser’s
Liability. In
no event shall the Purchaser, nor any heir, legal representative, successor, or
assignee of the Purchaser have any personal liability for the obligations of
Landlord under the Lease and should the Purchaser succeed to the interests of
the Landlord under the Lease, Tenant shall look only to the estate and property
of any such Purchaser in the Property 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 any Purchaser as landlord under
the Lease, and no other property or assets of any Purchaser shall be subject to
levy, execution or other enforcement procedure for the satisfaction of Tenant’s
remedies under or with respect to the Lease; provided, however, that the
Tenant may exercise any other right or remedy provided thereby or by law in the
event of any failure by Landlord to perform any such material
obligation.
15. Estoppel
Certificate. Tenant,
shall, from time to time, within ten (10) days after request by Lender, execute,
acknowledge and deliver to Lender a statement by Tenant certifying (a) that the
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), (b) the amounts of fixed rent, additional rent, percentage
rent, or other sums, if any, which are payable in respect of the Lease and the
commencement date and expiration date of the Lease, (c) the dates to which the
fixed rent, additional rent, percentage rent, if any, and other sums which are
payable in respect to the Lease have been paid, (d) whether or not Tenant is
entitled to credits or offsets against such rent, and, if so, the reasons
therefore and the amount thereof, (e) that Tenant is not in default in the
performance of any of its obligations under the Lease and no event has occurred
which, with the giving of notice or the passage of time, or both, would
constitute such a default, (f) whether or not, to the best knowledge of the
person certifying on behalf of Tenant, Landlord is in default in the performance
of any of its obligations under the Lease, and, if so, specifying the same, (g)
whether or not, to the best knowledge of such person, any event has occurred
which with the giving of such notice or passage of time, or both would
constitute such a default, and, if so, specifying each such event, and (h)
whether or not, to the best knowledge of such person, Tenant has any claims,
defenses or counterclaims against Landlord under the Lease, and, if so,
specifying the same, it being intended that any such statement delivered
pursuant hereto shall be deemed a representation and warranty to be relied upon
by Lender and by others with whom Lender may be dealing, regardless of
independent investigation. Tenant also shall include in any such
statement such other information concerning the Lease as Lender may reasonably
request.
[NO
FURTHER TEXT ON THIS PAGE]
IN
WITNESS WHEREOF, Lender, Tenant and Landlord have duly executed this Agreement
as of the date first above written.
|
COVENANT
TRANSPORT, INC., a Tennessee corporation
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
CT
CHATTANOOGA TN, LLC, a Delaware limited liability company
|
||||
|
By:
|
SunTrust
Equity Funding, LLC, its manager
|
|||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
LENDER:
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
[Attach
State-Specific Forms of Acknowledgments]
EXHIBIT
A
[Attach
Legal Description of Property]
APPENDIX
A
“Additional Rent”
shall mean all amounts, costs, expenses, liabilities and obligations (including
Tenant’s obligation to pay any Net Award, Default Rate interest or late charges
or penalties hereunder) which Tenant is required to pay pursuant to the terms of
this Lease other than Basic Rent.
“Adjoining Property”
shall mean all sidewalks, curbs, gores and vault spaces adjoining the Leased
Premises.
“Affiliate” of any
Person shall mean any other Person directly or indirectly controlling,
controlled by or under common control with, such Person and shall include, if
such Person is an individual, members of the immediate family of such Person,
and trusts for the benefit of such individual. For the purposes of
this definition, the term “control” (including
the correlative meanings of the terms “controlling”, “controlled by” and “under
common control with”), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
“After -Tax Basis”
shall mean, with respect to any payment received or accrued by any Person, the
amount of such payment (the “base payment”)
supplemented by a further payment (the “additional payment”)
to that Person so that the sum of the base payment plus the additional payment
shall, after taking into account the amount of all Taxes required to be paid by
such Person in respect of the receipt or accrual of the base payment and the
additional payment (after any current credits or deductions arising therefrom
and the timing thereof), be equal to the amount required to be
received. Such calculations shall be made (a) in the case of entities
subject to United States Federal income tax, at the highest marginal United
States federal, state and local income tax rates applicable to individuals or
corporations (as the case may be) resident or domiciled in the jurisdiction
where the recipient of such payment is located (or where the recipient indicates
such payment will be required to be reported, if different); (b) in the case of
an organization exempt from United States Federal income tax, at the highest
marginal United States federal, state and local tax rates applicable to
unrelated business taxable income (or any tax that is a supplement or addition
to or substitute for or in lieu thereof, whether or not expressly so
designated), but only if the payments with respect to the Leased Premises are
subject to such tax or (c) if Landlord is not a US taxpayer, at Landlord’s
actual effective overall tax rate, if lower. In the case of any
flow-through entity, “Landlord” shall include the direct or indirect members or
other equity owners of Landlord that are required to report the gross or net
income of Landlord and/or other items of income, expense, deduction and credit
with respect thereto, and in the case of any entity, “Landlord” and the owners
thereof shall include any consolidated, combined or unitary group of which
Landlord is a part for income tax purposes.
“Alteration” or “Alterations” shall
mean any or all changes, additions (whether or not adjacent to or abutting any
then existing buildings), expansions (whether or not adjacent to or abutting any
then existing buildings), improvements, reconstructions, removals or
replacements of any of the Improvements or Fixtures, both interior or exterior,
and ordinary and extraordinary.
A-1
“Anticipated Lease
Income” shall mean the amounts expected to be included in gross income
with respect to this Lease including only (i) Basic Rent and Additional Rent,
(ii) payments as a consequence of a sale or other disposition (other than in the
case of the exercise of remedies after an Event of Default) of the Leased
Premises, and (iii) an amount received pursuant to the indemnity set forth in
Paragraph
30.
“Applicable Laws”
shall mean all existing and future applicable laws (including common laws),
rules, regulations, statutes, treaties, codes, ordinances, permits,
certificates, orders and licenses of any Governmental Authorities, and
applicable judgments, decrees, injunctions, writs, orders or like action of any
court, arbitrator or other administrative, judicial or quasi-judicial tribunal
or agency of competent jurisdiction (including those pertaining to the
environment and those pertaining to the construction, use or occupancy of the
Leased Premises). Applicable Laws shall include Environmental
Laws.
“Basic Rent” shall
mean the amounts set forth on Exhibit B annexed to
this Lease.
“Basic Rent Payment
Dates” shall mean the first day of each calendar month during the Term,
or, if such day is not a Business Day, the next succeeding Business
Day.
“Business Day” means
any day other than a Saturday or a Sunday, or any other day on which banks are
required or authorized to be closed for business in Atlanta, Georgia or
Chattanooga, Tennessee.
“CERCLA” shall mean
the Comprehensive Environmental Response, Compensation and Liability Act, as
amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.
§§ 9601-9657.
“Claims” shall mean
Liens (including, without limitation, Lien removal and bonding costs)
liabilities, obligations, damages, losses, demands, penalties, assessments,
payments, fines, claims, actions, suits, judgments, settlements, costs, expenses
and disbursements (including, without limitation, reasonable legal fees and
expenses and costs of investigation) of any kind and nature
whatsoever.
“Code” shall mean the
Internal Revenue Code of 1986, as amended from time to time.
“Commencement Date”
shall mean April 3, 2006.
“Condemnation” shall
mean a Taking and/or a Requisition.
“Default Rate” shall
mean a rate of interest equal to four (4%) percent per annum above the then
current Prime Rate.
“Easements” shall mean
easements, covenants, waivers, approvals or restrictions for utilities, parking
or other matters as desirable for operation of the Leased Premises or properties
adjacent thereto.
A-2
“Environmental Laws”
shall mean and include the Resource Conservation and Recovery Act of 1976
(RCRA), 42 U.S.C. §§ 6901-6987, as amended by the Hazardous and Solid Waste
Amendments of 1984, CERCLA, the Hazardous Materials Transportation Act of 1975,
49 U.S.C. §§ 1801-1812, the Toxic Substances Control Act, 15 U.S.C. §§
2601-2671, the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et seq and all other
federal, state and local laws, ordinances, rules, orders, statutes, codes and
regulations applicable to the Leased Premises and (i) relating to the
environment, human health or natural resources, (ii) regulating, controlling or
imposing liability or standards of conduct concerning Hazardous Materials, or
(iii) regulating the clean-up or other remediation of the Leased Premises or any
portion thereof, as any of the foregoing may have been amended, supplemented or
supplanted from time to time.
“Event of Default”
shall mean the occurrence of any one or more of the following events under this
Lease: (i) a failure by Tenant to make: (x) any payment of Basic Rent
when due and such failure continues for five (5) or more Business Days, or (y)
any payment of any other sum herein required to be paid by Tenant which
continues unremedied for a period of fifteen (15) Business Days after written
notice thereof is given to Tenant by Landlord or Lender or Lender’s designee;
(ii) failure by Tenant to perform and observe, or a violation or breach of, any
other provision in this Lease and such default shall continue for a period of
thirty (30) days after written notice thereof is given by Landlord or Lender or
Lender’s designee to Tenant, or if such default is of such a nature that it
cannot reasonably be cured within such period of thirty (30) days, such period
shall be extended for such longer time as is reasonably necessary (not to exceed
360 days in total) provided that Tenant
has commenced to cure such default within said period of thirty (30) days and is
actively, diligently and in good faith proceeding with continuity to remedy such
default; (iii) any representation or warranty made in this Lease, or in
connection with this Lease, by Tenant is determined by Landlord to have been
false or misleading in any material respect at the time made; (iv) Tenant or
Lease Guarantor shall (A) voluntarily be adjudicated a bankrupt or insolvent,
(B) voluntarily consent to the appointment of a receiver or trustee for itself
or for any of the Leased Premises, (C) voluntarily file a petition seeking
relief under the bankruptcy or other similar laws of the United States, any
state or any jurisdiction, or (D) voluntarily file a general assignment for the
benefit of creditors; (v) a court shall enter an order, judgment or decree
appointing, with the voluntary consent of Tenant or Lease Guarantor, a receiver
or trustee for Tenant or Lease Guarantor or for the Leased Premises or approving
a petition filed against Tenant or Lease Guarantor which seeks relief under the
bankruptcy or other similar laws of the United States or any State, and such
order, judgment or decree shall remain in force, undischarged or unstayed,
ninety (90) days after it is entered; (vi) Tenant or Lease Guarantor shall in
any insolvency proceedings be liquidated or dissolved or shall voluntarily
commence proceedings towards its liquidation or dissolution; (vii) the estate or
interest of Tenant in the Leased Premises shall be levied upon or attached in
any proceeding and such estate or interest is about to be sold or transferred or
such process shall not be vacated or discharged within sixty (60) days after
such levy or attachment; (viii) Tenant shall be in default under any other lease
of real property with Landlord or with any Affiliate of Landlord or (ix) Lease
Guarantor defaults in, or repudiates, its obligations under the Lease Guaranty,
or the Lease Guaranty ceases to be in full force and effect for any
reason.
“Expiration Date”
shall mean March 31, 2026.
A-3
“Fixtures” shall mean
all fixtures (except Trade Fixtures), including any components thereof, on and
in respect to the Improvements, including, without limitation, all built-in
equipment intended to be permanently attached to the Improvements and used in
the operation of the Leased Premises, together with all replacements,
modifications, alterations and additions thereto.
“Governmental
Authority” shall mean any federal, state, county, municipal, foreign or
other governmental or regulatory authority, agency, board, body,
instrumentality, court or quasi governmental authority (or private entity in
lieu thereof).
“Guaranties” shall
mean all warranties, guaranties and indemnities, express or implied, and similar
rights which Landlord may have against any manufacturer, seller, engineer,
contractor or builder in respect of any of the Leased Premises, including, but
not limited to, any rights and remedies existing under contract or pursuant to
the Uniform Commercial Code.
“Hazardous Materials”
shall mean all chemicals, petroleum, crude oil or any fraction thereof,
hydrocarbons, polychlorinated biphenyls (PCBs), asbestos, asbestos-containing
materials and/or products, urea formaldehyde, or any substances which are
classified as “hazardous” or “toxic” under CERCLA; hazardous waste as defined
under the Solid Waste Disposal Act, as amended 42 U.S.C. § 6901; air pollutants
regulated under the Clean Air Act, as amended, 42 U.S.C. § 7401, et seq.;
pollutants as defined under the Clean Water Act, as amended, 33 U.S.C. § 1251,
et seq., any pesticide as defined by Federal Insecticide, Fungicide, and
Rodenticide Act, as amended, 7 U.S.C. § 136, et seq., any hazardous chemical
substance or mixture or imminently hazardous substance or mixture regulated by
the Toxic Substances Control Act, as amended, 15 U.S.C. § 2601, et Seq.,
any substance listed in the United States Department of Transportation Table at
45 CFR 172.101; any chemicals included in regulations promulgated under the
above listed statutes; any explosives, radioactive material, and any chemical
regulated by state statutes similar to the federal statutes listed above and
regulations promulgated under such state statutes.
“Holder” shall mean,
as of any particular date, any holder of a Note.
“Impositions” shall
mean, collectively, all taxes of every kind and nature (including real, ad
valorem, single business, personal property, gross income, transaction
privilege, franchise, withholding, profits and gross receipts taxes) on or with
respect to the Leased Premises, or the use, lease, ownership or operation
thereof; all charges and/or taxes for any easement or agreement maintained for
the benefit of the Leased Premises; all general and special assessments, levies,
permits, inspection and license fees on or with respect to the Leased Premises;
all water and sewer rents and other utility charges on or with respect to the
Leased Premises; all ground rents on or with respect to the Leased Premises; and
all other public charges and/or taxes whether of a like or different nature,
even if unforeseen or extraordinary, imposed or assessed upon or with respect to
the Leased Premises, prior to or during the Term, against Landlord, Tenant or
any of the Leased Premises as a result of or arising in respect of the
occupancy, leasing, use, maintenance, operation, management, repair or
possession thereof, or any activity conducted on the Leased Premises, or the
Basic Rent or Additional Rent, including without limitation, any gross income
tax, sales tax, occupancy tax or excise tax levied by any governmental
body on or with respect to such Basic Rent or Additional Rent; all payments
required to be made to a governmental or quasi-governmental authority (or
private entity in lieu thereof) that are in lieu of any of the foregoing,
whether or not expressly so designated; and any penalties, fines, additions or
interest thereon or additions thereto.
A-4
“Improvements” shall
mean, collectively, the buildings, structures and other improvements on the
Land.
“Indemnitee” shall
mean Landlord, its assignees or other transferees, each Lender, each Holder and
their respective Affiliates and their respective officers, directors, employees,
agents, representatives, shareholders, members or other equity
owners.
“Initial Term” shall
mean the period of time commencing on the Commencement Date and terminating on
the Expiration Date.
“Insurance Expiration
Date” shall mean, with respect to an insurance policy, the date that such
insurance policy will expire.
“Insurance
Requirement” or “Insurance
Requirements” shall mean, as the case may be, any one or more of the
terms of each insurance policy required to be carried by Tenant under this Lease
and the requirements of the issuer of such policy, and whenever Tenant shall be
engaged in making any Alteration or Alterations, repairs or construction work of
any kind (collectively, “Work”), the term
“Insurance Requirement” or “Insurance Requirements” shall be deemed to include a
requirement that Tenant obtain or cause its contractor to obtain completed value
builder’s risk insurance when the estimated cost of the Work in any one instance
exceeds the sum of One Hundred Thousand ($100,000.00) Dollars and that Tenant or
its contractor shall obtain worker’s compensation insurance or other adequate
insurance coverage covering all persons employed in connection with the Work,
whether by Tenant, its contractors or subcontractors and with respect to whom
death or bodily injury claims could be asserted against Landlord.
“Land” shall mean the
lot(s) or parcel(s) of land described in Exhibit A attached to
this Lease and made a part hereof, together with the easements, rights and
appurtenances thereunto belonging or appertaining.
“Landlord” shall mean
CT Chattanooga TN, LLC, a Delaware limited liability company.
“Law” shall mean any
constitution, statute or rule of law.
“Lease” has the
meaning set forth in the preamble.
“Lease Guarantor”
means Covenant Transport, Inc., a Nevada corporation.
“Lease Guaranty” means
the Lease Guaranty, dated as of the date of this Lease, issued by the Lease
Guarantor.
A-5
“Leased Premises”
shall mean, collectively, the Land, the Improvements and the
Fixtures.
“Legal Requirement” or
“Legal
Requirements” shall mean, as the case may be, any one or more of all
present and future laws, codes, ordinances, orders, judgments, decrees,
injunctions, rules, regulations and requirements, even if unforeseen or
extraordinary, of every duly constituted governmental authority or agency (but
excluding those which by their terms are not applicable to and do not impose any
obligation on Tenant, Landlord or the Leased Premises) and all covenants,
restrictions and conditions now of record which may be applicable to Tenant,
Landlord (with respect to the Leased Premises) or to all or any part of or
interest in Leased Premises, or to the use, manner of use, occupancy,
possession, operation, maintenance, alteration, repair or reconstruction of the
Leased Premises, even if compliance therewith (i) necessitates structural
changes or improvements (including changes required to comply with the
“Americans with Disabilities Act”) or results in interference with the use or
enjoyment of the Leased Premises or (ii) requires Tenant to carry insurance
other than as required by the provisions of this Lease.
“Lender” shall mean an
entity identified as such in writing to Tenant which makes a Loan to Landlord,
secured by a Mortgage and evidenced by a Note or which is the holder of the
Mortgage and Note as a result of an assignment thereof.
“Lien” shall mean any
Lien, mortgage, pledge, charge, security interest or encumbrance of any kind, or
any type of preferential arrangement that has the practical effect of creating a
security interest, including, without limitation, any thereof arising under any
conditional sale agreement, capital lease or other title retention
agreement.
“Loan” shall mean a
loan made by a Lender to Landlord secured by a Mortgage and evidenced by a
Note.
“Moody’s” shall mean
Moody’s Investors Service, Inc.
“Mortgage” shall mean
a first priority mortgage, deed of trust or similar security instrument
hereafter executed covering the Leased Premises from Landlord to Lender or
Trustee.
“Net Award” shall mean
the entire award payable to Landlord by reason of a Condemnation, less any
reasonable expenses incurred by Landlord in collecting such award.
“Net Proceeds” shall
mean the entire proceeds of any insurance required under clauses (i),
(iv) or (v) of Paragraph 14 (a) of
this Lease, less any actual and reasonable expenses incurred by Landlord in
collecting such proceeds.
“Note” or “Notes” shall mean a
Promissory Note or Notes hereafter executed from Landlord to Lender, which Note
or Notes may be secured by a Mortgage and an assignment of leases and
rents.
A-6
“Notice” or “Notices” shall mean
all notices, demands, requests, consents, approvals, offers, statements and
other instruments or communications required or permitted to be given pursuant
to the provisions of this Lease.
“Permitted
Encumbrances” shall mean those covenants, restrictions, reservations,
Liens, conditions, encroachments, easements and other matters of title that
affect the Leased Premises as of the date of Landlord’s acquisition thereof,
excepting, however, any such matters arising from the acts of Landlord (such as
Liens arising as a result of judgments against Landlord).
“Person” shall mean an
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, limited liability company, non-incorporated organization or
government or any agency or political subdivision thereof.
“Prime Rate” shall
mean the prime rate of interest published in The Wall Street Journal or its
successor, from time to time.
“Rating Agency” or
“Rating
Agencies” shall mean, if any, one or more of Standard & Poor’s,
Moody’s, Fitch or any other rating agency that has rated the Loan, the Mortgage
or the REMIC Trust or any other trust or entity in which the Loan and the
Mortgage have been placed.
“REA” shall mean a
reciprocal easement agreement or any other agreement or document of record now
affecting the Leased Premises.
“Release” shall mean
the release under applicable Environmental Laws or the threatened release of any
Hazardous Materials into or upon any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal,
discharge, emission, injection, spillage, leakage, seepage, leaching, dumping,
pumping, pouting, escaping, emptying, placement and the like.
“REMIC” shall mean a
“real estate mortgage investment conduit” within the meaning of the
Code.
“Renewal Option
Notice” shall mean a written notice from Tenant to Landlord of its
election to extend the Term (or any then Renewal Term) of this Lease pursuant to
Paragraph 5 of
this Lease.
“Renewal Term” shall
mean an additional Lease term of five (5) years.
“Replaced Fixtures”
shall mean Fixtures that have been replaced by Tenant with Replacement
Fixtures.
“Replacement Fixtures”
shall mean operational equipment or other parts used by Tenant to replace any of
the Fixtures.
“Requisition” shall
mean any temporary condemnation or confiscation of the use or occupancy of the
Leased Premises by any governmental authority, civil or military, whether
pursuant to an agreement with such governmental authority in settlement of or
under threat of any such requisition or confiscation, or
otherwise.
A-7
“Restoration” shall
mean, following a casualty or Condemnation, the restoration of the Leased
Premises to as nearly as possible its value, condition and character immediately
prior to such casualty or Condemnation, in accordance with the provisions of
this Lease, including but not limited to the provisions of Paragraphs 11(a),
12 and 15. Notwithstanding
the foregoing, such Restoration may depart from the exact condition of the
Leased Premises immediately prior to the casualty or Condemnation, provided that (i) the
fair market value of the Leased Premises shall not be lessened after the
completion of the Restoration, (ii) the use of the Leased Premises shall not be
changed as a result of any such Restoration, (iii) all such Restoration shall be
performed in a good and workmanlike manner, and shall be expeditiously completed
in compliance with all Legal Requirements, (iv) Tenant shall (subject to the
provisions of Paragraph 18 hereof)
discharge all Liens filed against any of the Leased Premises arising out of the
same, and (v) no such Alteration shall create any debt or other encumbrance(s)
on the Leased Premises.
“Restoration Award”
shall mean that portion of the Net Award equal to the cost of
Restoration.
“Restoration Fund”
shall mean, collectively, the Net Proceeds, Restoration Award and Tenant
Insurance Payment.
“SEC” shall mean the
Securities and Exchange Commission.
“Standard &
Poor’s” shall mean Standard & Poor’s Ratings Services.
“State” shall mean the
State or Commonwealth in which the Leased Premises is situated.
“Structural Change”
means any Alteration that (i) includes the movement of any load-bearing wall,
(ii) alters the foot-print of any Improvement, or (iii) includes the addition of
a floor to any building.
“Subsidiary” means any
corporation, association, trust or other business entity of which the designated
parent shall at any time own directly, or indirectly through a Subsidiary or
Subsidiaries, at least a majority (by number of votes) of the outstanding Voting
Stock.
“Taking” shall mean
any taking of the Leased Premises in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or by reason of any
agreement with any condemnor in settlement of or under threat of any such
condemnation or other eminent domain proceedings or by any other means, or any
de facto condemnation.
“Tax” or “Taxes” shall mean any
and all present and future taxes, including income (gross or net), gross or net
receipts, sales, use, value added, franchise, doing business, transfer, capital,
property (tangible or intangible), municipal assessments, excise and stamp
taxes, levies, imposts, duties, charges, assessments or withholding, together
with any penalties, fines, additions or interest thereon or additions thereto
(any of the forgoing being referred to herein individually as a “Tax”), imposed by any
Governmental Authority. Taxes shall include the costs of any contest
or appeal pursued which reduces the Taxes (or attempts to do so) including
reasonable attorneys’ fees and costs incident thereto. Without
limiting the foregoing, if at any time during the term
of this Lease the methods of taxation prevailing at the execution hereof shall
be changed or altered so that in lieu of or as a supplement or addition to or a
substitute for the whole or any part of the real estate taxes or assessments now
or from time to time thereafter levied, assessed or imposed by applicable taxing
authorities for the funding of governmental services, there shall be imposed (i)
a tax, assessment, levy, imposition or charge, wholly or partially as a capital
levy or otherwise, on the gross rents received or otherwise attributable to the
Leased Premises, or (ii) a tax, assessment, levy (including but not limited to
any municipal, state or federal levy), imposition or charge measured by or based
in whole or in part upon the Leased Premises or this Lease, and imposed on the
Landlord under this Lease or any portion thereof, or (iii) a license fee or
other fee or tax measured by the gross rent payable under this Lease, or (iv)
any other tax, assessment, levy, charge, fee or the like payable with respect to
the Leased Premises, the rents, issues and profits thereof, then all such taxes,
assessments, levies, impositions and/or charges, or the part thereof so measured
or based, shall be deemed to be Taxes.
A-8
“Tax Indemnitee” shall
mean Landlord, each Lender, any Holder, any servicer of a Loan, Trustee, any
trustee under a Mortgage which is a deed of trust, each of their assignees or
other transferees and each of their Affiliates and their respective officers,
directors, employees, shareholders, members or other equity owners.
“Tenant” shall mean
Covenant Transport, Inc., a Tennessee corporation.
“Tenant’s Insurance
Payment” shall mean, in the event of a damage or destruction, the amount
of the proceeds that would have been payable under the third-party insurance
required to be maintained pursuant to Paragraph 14(a)(i),
(iv) or (vi) had such
insurance program been in effect, together with the amount of any deductible
under such insurance.
“Tenant’s Termination
Notice” shall mean a written notice from Tenant to Landlord after a
Condemnation or casualty of Tenant’s intention to terminate this Lease on the
Termination Date.
“Term” shall mean the
Initial Term, together with any Renewal Term.
“Termination Date”
shall mean the date for the termination of this Lease pursuant to Tenant’s
Termination Notice, which date shall be on a Basic Rent Payment Date occurring
no sooner than thirty (30) days after the date of Tenant’s Termination Notice
pursuant to Paragraph
13 or 14
of this Lease.
“Trade Fixtures” shall
mean all fixtures, equipment and other items of personal property (whether or
not attached to the Improvements) which are owned by Tenant and used in the
operation of the business conducted on the Leased Premises.
“Trustee” shall mean
an institution serving as a trustee, collateral agent or administrative agent
for Lender.
“Voting Stock” shall
mean stock or similar interests, of any class or classes (however designated),
the holders of which are at the time entitled, as such holders, to vote for the
election of a majority of the directors (or persons performing similar
functions) of the corporation, association, trust or other business entity
involved, whether or not the right so to vote exists by reason of the happening
of a contingency.