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EXHIBIT 10.1
O'Charley's ___/__________, ____________
County, __________
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into as of
________
____, 2003 (the "Effective Date"), by and
between:
(i)
______________, LP, a Delaware limited partnership, with
its principal office and place of business
at CNL Center at City Commons, 450
South Orange Avenue, Orlando, Florida
32801-3336 ("Landlord"), and
(ii)
________________, a _____________________, with its principal
place of business at 3038 Sidco Drive,
Nashville, Tennessee 37204 ("Original
Tenant").
W I T N E S S E T H:
Landlord leases to Tenant (as hereinafter defined), for the use
and
purposes whatsoever permitted in this
Lease, and subject to the terms and
conditions of the Rent Addendum attached
hereto, and Tenant rents from Landlord,
the following described premises,
(hereinafter "Premises"): the real property
located at ______________________,
__________, _________ County, ___________ and
being more particularly described in
Exhibit "A" attached hereto and made a part
hereof (the "Land"), together with all (i)
rights, privileges, easements,
servitudes, rights-of-way and appurtenances
belonging or appurtenant to the Land
(the "Appurtenant Interests"), and (ii) all
buildings, fixtures and other
improvements now or hereafter located on
the Land and all right, title and
interest of Landlord in and to any
improvements used in connection with or
necessary for the exercise of the
Appurtenant Interests.
The following additional stipulations are hereby declared to be
covenants of this Lease and shall, unless
otherwise expressly stated, be
applicable at all times throughout the term
of this Lease and any extension or
renewal thereof:
1.
DEFINITIONS
In addition to the defined terms appearing elsewhere in this Lease,
the
following terms shall be defined as follows
for purposes of this Lease:
"Annual Rent Commencement Date" shall mean the Effective Date.
"Effective Date" shall mean the date set forth at the beginning of
this
Lease.
"Landlord" shall mean CNL FUNDING 2001-A, LP, a Delaware
limited
partnership, its successors and
assigns.
"Lease" shall mean this Lease Agreement and all amendments hereto,
if
any, entered into from time to time
hereafter, together with the Rent Addendum
and Exhibits attached hereto.
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"Lease Year" shall mean a fiscal period beginning on the Annual
Rent
Commencement Date (and each annual
anniversary thereof) and expiring on the last
day preceding the next annual anniversary
of the Annual Rent Commencement Date,
provided, however, that in the event the
Annual Rent Commencement Date is not
the first (1st) day of a calendar month,
then the first Lease Year shall
commence on the first (1st) day of the
calendar month following the Annual Rent
Commencement Date and each subsequent Lease
Year shall commence on the annual
anniversary of the commencement date of the
first (1st) Lease Year.
"Material Taking" shall mean a Taking of the whole of the Land or
a
Taking of any portion of the Premises that,
in Tenant's reasonable judgment
exercised in good faith, will: (i) result
in the loss of any material portion of
the building located on the Land; (ii)
materially impair access to the Land; or
(iii) otherwise result in the permanent
closure or removal of a portion of the
improvements (including the loss of parking
spaces) located on the Premises
which can be reasonably demonstrated to
have rendered uneconomical the continued
use of the Land (or the remainder thereof)
for Tenant's business operations.
"Rent" shall mean the rent payable under this Lease as set forth in
the
Rent Addendum attached hereto and
incorporated herein, and shall include Annual
Rent (as defined in the Rent Addendum),
together with all other items described
in this Lease as "additional rent".
"Taking" shall mean a taking of all or any part of the Premises for
any
public or quasi-public use under any
governmental law, ordinance, regulation or
right of eminent domain, or sale to the
condemning authority under threat of
condemnation or by agreement between
Landlord and/or Tenant and those authorized
to exercise such right under threat of
condemnation.
"Tenant" shall include the Original Tenant and its successors and
any
assignee thereof pursuant to an assignment
under Paragraph 16 of this Lease.
"Total Cost" shall mean the greater of $_____________ or the
actual
gross purchase price paid by any successor
or assignee of Landlord to purchase
the Premises pursuant to a bona fide
purchase and sale transaction between
unrelated parties which purchase and sale
transaction relates only to the
Premises.
2. TERM
AND RENT
(a) Term. The
term of this Lease shall begin on the
Effective Date and shall expire on ________________, unless
previously
terminated or renewed or extended as provided herein. As used
herein,
the "Termination Date" shall mean the last day of the initial term
(as
described above) or the last renewal term exercised by Tenant
as
described in Paragraph 10 below, as applicable.
(b) Rent. Rent
shall be due and payable as provided in
the Rent Addendum attached hereto and incorporated herein.
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3.
ALTERATIONS AND IMPROVEMENTS, INVESTMENT TAX CREDIT, MECHANIC'S
LIENS,
LANDLORD'S DISCLAIMER
(a)
Alterations and Improvements.
(i) Tenant's
Property. Tenant shall be permitted to
install, use on and about, and remove from the Premises at any time
and
from time to time all trade fixtures and other personal
property
(exclusive of lighting, electrical, and heating and air
conditioning
improvements) that are not a component of the building located or
to be
located on the Land (hereinafter referred to as the "Tenant's
Property"), all of which at all times shall remain the property
of
Tenant with the right of removal (subject to Paragraph 3(d) below)
at
or prior to the expiration or termination of this Lease.
Tenant's
Property shall include: (1) removable decor items and office
equipment;
(2) building lettering, signs, sign posts and sign standards;
(3)
unattached food and customer service equipment; (4) food and
customer
service equipment attached to the building by bolts and screws
and/or
by utility connections, including without limitation, walk-in
refrigerators and freezers, remote refrigeration systems,
exhaust
systems and hoods, and water heaters; and (5) Tenant's interest in
any
equipment or other item of property that is leased to Tenant
pursuant
to an equipment lease.
(ii)
Subsequent Improvements. Tenant shall also have the
right to make any additions, alterations, changes and
improvements,
structural and nonstructural, including but not limited to
construction
of additional buildings and additions to the then existing
buildings,
as Tenant shall desire; provided, however, (x) as to any
structural
changes (but only if the cost of such change exceeds $100,000.00
(the
"Alteration Amount")), (i) Tenant shall submit plans of all
such
changes to Landlord at least thirty (30) days in advance of the
proposed construction date, which plans shall be subject to
Landlord's
approval which shall not be unreasonably withheld, conditional
or
delayed, (ii) Tenant shall provide Landlord with evidence of
Tenant's
financial ability to pay for such changes, and (iii) if Original
Tenant
has assigned or subleased its interest in this Lease to another
party
such assignee or sublessee shall deliver to Landlord
unconditional
payment and performance bonds for such work naming Landlord and
such
assignee or sublessee of Tenant as dual obligees, and (y) as to
all
changes, structural or non-structural, and regardless of whether
any
such change constitutes a structural change (and regardless of
whether
the cost of such change exceeds the Alteration Amount), (i) all
such
construction shall be completed in a workmanlike manner and in
material
compliance with all laws, building codes and ordinances
applicable
thereto, at Tenant's sole expense, and (ii) such additions,
alterations, changes and improvements (whether structural or
non-structural) shall not reduce the fair market value of the
Premises.
Notwithstanding the foregoing, the Alteration Amount shall increase
to
$150,000.00 at the expiration of the tenth (10th) Lease Year. In
the
event Landlord has reasonable cause to believe that such changes
will
reduce the fair market value of the Premises, Landlord shall
designate
an independent MAI appraiser within ten (10) days of Tenant's
submission of plans of all changes to the Premises. Within ten
(10)
days after selection of Landlord's appraiser, Landlord shall
notify
Tenant of the determination made by Landlord's appraiser with
respect
to the anticipated fair market value of the Premises with such
additions, alterations, changes and improvements. Tenant shall
then
have ten (10) days to dispute such determination and to
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select its own independent MAI appraiser. In the event that
Tenant
fails to select its appraiser within such ten (10) day period,
the
determination of Landlord's appraiser shall constitute the
anticipated
fair market value. Within ten (10) days after selection of
Tenant's
appraiser, the two appraisers shall meet and attempt to agree as to
the
anticipated fair market value for the Premises. In the event that
such
appraisers are unable to agree as to such anticipated fair market
value
then: (i) if the difference between the two determinations is less
than
five percent (5%) of the lower determination, then the average of
the
two determinations shall be deemed to constitute the anticipated
fair
market value; or (ii) if the difference between the two
determinations
is equal to or greater than five percent (5%) of the lower
determination, then the two appraisers shall jointly select a
third
independent MAI appraiser, which appraiser shall select which of
the
determinations of the first two appraisers shall constitute the
anticipated fair market value. Such third appraiser shall not have
the
right to vary or modify the determinations of the appraisers
selected
by Landlord and Tenant. Any appraiser selected by Tenant or
Landlord
must have at least ten (10) years experience in appraising
commercial
real estate in the area in which the Premises is located. The
appraisers shall not have the right to amend, modify or vary any of
the
terms of this Lease and the determination of the appraisers shall
be
final, binding and conclusive upon Landlord and Tenant. In all
events,
said fair market value shall be determined without regard or
consideration for this Lease or rent payable hereunder. In the
event
Landlord has not granted or denied its approval of plans submitted
in
accordance with this Paragraph 3 within two (2) weeks after such
plans
have been delivered to Landlord, such plans shall be deemed
approved by
Landlord.
(iii)
Improvements Upon Termination, Subletting or
Assignment. Subject to the requirements of this Paragraph 3,
Tenant
shall have the right, at its option and expense, to redecorate
or
otherwise remodel the Premises upon any termination hereof or upon
any
permitted subletting or assignment in such manner as will,
without
reducing the fair market value thereof, avoid the appearance of
the
O'Charley's Restaurant operated under this Lease; provided,
however,
that in addition to the other requirements of this Paragraph 3,
Tenant
shall not impair the structural condition of the improvements
located
on the Land, or reduce the size of the buildings located on the
Land.
Any dispute under this Paragraph as to whether a proposed change
will
reduce the fair market value of the Premises will be resolved by
the
same appraisal process described in subparagraph 3(a)(ii)
above.
(iv)
All subsequent improvements referred to in Paragraph
3(a)(ii) above, all improvements upon termination, subletting
or
assignment referred to in Paragraph 3(a)(iii) above, and any and
all
other additions,
alterations, changes and improvements of any type by
Tenant to the Premises (excluding Tenant's Property) shall be
deemed to
be a part of the Premises and the sole property of Landlord.
(b) Investment
Tax Credit. Landlord hereby grants Tenant
the right and privilege of applying for and receiving all
investment
tax credits, if any, under the Internal Revenue Code of 1986,
as
amended (the "Code") that may be available with respect to the
building
and other improvements which may be constructed on the
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Premises. To this end, Landlord agrees to execute all such
further
documents and supply such additional information as may be required
to
make such election effective.
(c) Mechanic's
and Other Liens. Tenant shall not do
anything by which the Premises, or any part thereof, shall be
encumbered by a mechanic's, materialman's, or other lien for work
or
labor done, services performed, materials, appliances, or power
contributed, used, or furnished in or to the Premises or in
connection
with any operations or any other activity of Tenant, and, if,
whenever
and as often as any lien may be filed against the Premises, or any
part
thereof, purporting to be for or on account of any labor done,
materials or services furnished in connection with any work in or
about
the Premises, done by, for or under the authority of Tenant, or
anyone
claiming by, through or under Tenant, Tenant shall discharge the
same
of record within thirty (30) days after service upon Tenant of
written
notice of the filing thereof; provided, however, Tenant shall have
the
right to remove the lien as an encumbrance upon the Premises by
bonding
same in accordance with applicable law and to contest any such
lien;
provided further that Tenant shall diligently prosecute any
such
contest, at all times effectively staying or preventing any
official or
judicial sale of the Premises under execution or otherwise, and,
if
unsuccessful, satisfy any final judgment against Tenant adjudging
or
enforcing such lien or, if successful, procuring record
satisfaction or
release thereof. Landlord shall, at the request of Tenant, execute
or
join in the execution of any instruments or documents necessary
in
connection with such proceedings, but Landlord shall incur no cost
or
obligation thereby.
(d) Landlord's
Disclaimer. All of Tenant's Property
placed in or upon the Premises by Tenant shall remain the property
of
Tenant with the right to remove the same at any time during the
term of
this Lease or any extension or renewal thereof. Landlord, if
requested
by Tenant, agrees to execute a Subordination of Landlord's Lien in
the
form of Exhibit
"D" attached hereto or such other documentation as may
be reasonably required by any equipment lender or lessor of Tenant
by
which Landlord shall subordinate its lien rights to the lien rights
of
any equipment lender or lessor with respect to Tenant's Property,
and
to all rights of levy for distraint for rent against the same;
provided, however, that any damage caused by, or resulting from
the
removal of any of Tenant's Property or other personal property
(including the leaving of holes or other openings in the roof
or
exterior of the building on the Land) shall be promptly repaired
by
Tenant or the party entitled to remove the same. Landlord agrees
that
such
equipment lender or lessor shall have a period not to exceed
thirty (30) days after notice to such lender or lessor that a
Default
has occurred hereunder to remove such equipment (and Landlord
may
thereafter remove such equipment at such lessor's or lender's
expense).
Landlord shall be entitled to reimbursement by Tenant for its
reasonable costs and expenses in connection with the execution of
such
documentation, and Tenant agrees to pay such reasonable costs
and
expenses as a condition precedent to Landlord's execution of
such
documents.
4.
DESTRUCTION OF PREMISES; INSURANCE
(a) If the
improvements located on the Land are damaged
or destroyed by fire, flood, tornado or other element, or by any
other
casualty and such damage or destruction
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does not occur within the last twenty four (24) months of the
original
or of any extended or renewed term of this Lease, or in the
event
Tenant elects not to terminate this Lease following a casualty
that
would allow Tenant to so terminate (as described below), this
Lease
shall continue in full force and effect and, unless Tenant effects
an
economic substitution as permitted in this Paragraph 4(a) and
Paragraph
36 hereof, Tenant shall, as promptly as possible, restore, repair
or
rebuild the improvements located on the Land to substantially the
same
condition as existed before the damage or destruction, as modified
to
incorporate any improvements or alterations required to be made by
any
governmental body, county or city agency, due to any changes in
code or
building regulations. Tenant shall for this purpose use all, or
such
part as may be necessary, of the insurance proceeds received
from
insurance policies required to be carried under the provisions
of
Paragraph 4(b) hereinof. If such insurance proceeds are not
sufficient
to pay such costs, Tenant shall pay such deficit. Notwithstanding
the
foregoing provisions of this Paragraph 4(a), in the event that
Tenant
has an obligation hereunder to repair or rebuild the
improvements
located on the Land as a result of a casualty and Tenant
determines
that the repair or rebuilding of such improvements is not
economically
practicable, Tenant shall have the option to elect, by written
notice
to Landlord within sixty (60) days after such casualty, to
substitute
another restaurant property for the Premises pursuant to Paragraph
36
hereof, and in such event, (i) such substitution shall be
completed
within six (6) months
after the delivery of such notice; (ii) all
insurance proceeds payable with respect to the casualty affecting
the
Premises shall be paid to Tenant upon the completion of such
substitution; and (iii) Tenant shall continue to pay Rent and its
other
monetary obligations hereunder and to provide general liability
insurance pursuant to Paragraph 4(c) hereof until the
substitute
restaurant property is subject to a lease with Landlord as
described in
Paragraph 36 hereof. Should the improvements located on the Land
be
damaged or destroyed by any of the foregoing described
casualties
within the last twenty-four (24) months of the original term or of
any
extended or renewed term of this Lease, then to the extent that
the
Premises are untenantable or unsuitable, in Tenant's reasonable
opinion, for continued use in the normal conduct of Tenant's
business,
including, without limitation, if restoration or reconstruction
either
(A) is not permitted by then existing laws or governmental
regulations
applicable to the restoration or reconstruction of the improvements
on
the Land or (B) is not economically practicable, in the
reasonable
judgment of Tenant, as a result of the cost of compliance with
then
existing laws or governmental regulations applicable to the
restoration
or reconstruction of the improvements on the Land (a "Total
Loss"),
Tenant shall have the right, exercisable by written notice to
Landlord
given within forty-five (45) days after the date of such damage
or
destruction, to terminate this Lease effective upon the date of
such
damage or destruction. If Tenant terminates this Lease as thus
provided
Landlord shall be entitled to all of the insurance proceeds on
the
Premises, but not to the proceeds of any business interruption
insurance carried by Tenant or any insurance carried by Tenant
on
Tenant's Property; provided, however, Tenant shall not have the
right
to terminate this Lease unless (i) the damage or destruction of
the
improvements located on the Land was caused by a peril which
was
insured against as required by the provisions of Paragraph 4(b) of
this
Lease; and (ii) at the time of such damage and destruction the
said
insurance policies required to be carried by Tenant were in the
amounts
required by Paragraph 4(b) hereof (without deduction or
co-insurance
unless Tenant agrees to pay to Landlord (upon
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termination hereof) the amount of any such deductible or
co-insurance)
and in full force and
effect; and (iii) the insurer has confirmed
coverage and its obligation to pay. If Tenant defaults in its
obligation to carry insurance in the amounts required under
Paragraph
4(b), then, prior to Tenant's termination of this Lease and in
addition
to the requirements set forth in the preceding sentence, Tenant
shall
be obligated to pay toward such reconstruction or to Landlord, as
the
case may be, the difference between the amount of insurance
actually
carried and the amount required to be carried under Paragraph
4(b).
(b) Tenant, at
its expense and as additional rent
hereunder, shall throughout the term of this Lease and any
extension or
renewal thereof, keep the improvements located on the Land insured
with
(i) "Special Form Causes of Loss" coverage (as such term is used in
the
insurance industry), at least as broad as the most current ISO
Special
Cause of Loss Form, including coverage for glass breakage,
vandalism
and malicious mischief, and builder's risk (if the improvements
located
on the Land are to be constructed or substantially refurbished
or
rebuilt pursuant to the terms of this Lease) for one hundred
percent
(100%) of the insurable replacement value with no co-insurance
penalty,
with any deductible in excess of One Hundred Thousand Dollars
and
No/100 Dollars ($100,000.00) to be approved by Landlord which
approval
of deductible shall not be unreasonably withheld, and (ii)
"Ordinance
and Law Coverage" with limits of not less than the building value
for
Coverage A (loss to the undamaged portion of the building), a limit
of
not less than fifteen percent (15%) of the building value for
Coverage
B (Demolition Cost Coverage), and a limit of not less than
fifteen
percent (15%) of the building value for Coverage C (Increased Cost
of
Construction Coverage).
(c) Tenant, at
its expense, shall throughout the term of
this Lease and any extension or renewal thereof, maintain
commercial
general liability insurance including product liability and
liquor
liability (if
alcohol is served by Tenant) covering the Premises at
least as broad as the most commonly available ISO Commercial
General
Liability policy form (occurrence basis) covering bodily
injury,
property damage and personal and advertising injury, for the
joint
benefit of and insuring Tenant and Landlord, with limits of not
less
than One Million Dollars ($1,000,000.00) per occurrence with
any
deductible in excess of Two Hundred Fifty Thousand and No/100
Dollars
($250,000.00) to be approved by Landlord which approval shall not
be
unreasonably withheld, with a general aggregate of not less than
Two
Million Dollars ($2,000,000.00) and a "following form" umbrella
liability policy or excess liability policy to include product
liability and liquor liability (if alcohol is served by Tenant), in
an
amount of not less than Ten Million Dollars ($10,000,000.00)
per
occurrence, with any deductible in excess of Five Hundred
Thousand
Dollars ($500,000.00) to be approved by Landlord which approval
shall
not be unreasonably withheld.
(d)
[INTENTIONALLY DELETED]
(e) In the
event the Premises are located in an area
identified by the National Flood Insurance Program as an area
having
"special flood hazards" (zones beginning with "A" or "V," Tenant
shall
maintain throughout the term of this Lease and any extension
thereof,
flood insurance for the full replacement value of the
improvements
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located on the Land, with any deductible in excess of Two Hundred
Fifty
Thousand and No/100 Dollars ($250,000.00) to be approved by
Landlord
which approval of deductible shall not be unreasonably
withheld.
(f) In the
event the Land is located in an area
designated as a "Zone 1 or Zone 2 Earthquake Zone" by the U.S.
Geological Survey and earthquake insurance is available, Tenant
shall,
throughout the term of this Lease, and any extension or renewal
thereof, maintain earthquake insurance for the full replacement
value
of the Premises with any deductible in excess of Two Hundred
Fifty
Thousand and No/100 Dollars ($250,000.00) to be approved by
Landlord
which approval shall not be unreasonably withheld.
(g) Landlord
and Tenant shall periodically (but no more
frequently than once in any five (5) year period) and in good
faith
revise the deductible amounts from time to time due to inflation
and
changes in the insurance underwriting market.
(h) All
insurance companies providing the coverage
required under this Paragraph 4 shall be selected by Tenant, shall
be
rated A minus (A-) or better by Best's Insurance Rating Service
(or
equivalent rating service if not available), and shall be licensed
to
write insurance policies in the state in which the Land is
located.
Tenant shall provide Landlord with copies of all policies or
certificates of such coverage for the insurance coverages
referenced in
this Paragraph
4, and all commercial general liability and umbrella
liability or excess liability policies shall name Landlord (and
if
Landlord is either a general or limited partnership, its
general
partners if so requested by Landlord) and any mortgagee whose name
and
address has been provided by written notice from Landlord to
Tenant
sent in accordance with this Lease as additional insured(s)
thereunder.
Any such coverage for additional insureds shall be primary and
non-contributory with any insurance carried by Landlord or any
other
additional insured thereunder. All property insurance policies
shall
name Landlord as an additional named insured or as a loss payee
as
Landlord's
interests may appear. All such policies of insurance shall
provide that the amount thereof shall not be reduced and that none
of
the provisions, agreements or covenants contained therein shall
be
modified or canceled by the insuring company or companies
without
thirty (30) days prior written notice being given to Landlord
(except
for non-payment for which ten (10) days prior written notice will
be
provided); and that all insurance proceeds (if such payment
exceeds
$100,000.00) shall be paid by check payable to Landlord to be held
in
trust and applied pursuant to the terms of this Lease. Tenant
may
receive insurance proceeds directly if the insurance payment is
$100,000.00 or less. Such policy or policies of insurance may
also
cover loss or damage to Tenant's Property, and the insurance
proceeds
applicable to Tenant's Property, together with the proceeds of
any
business interruption insurance maintained by Tenant, shall not be
paid
to Landlord or any mortgagee but shall accrue and be payable solely
to
Tenant. In the event of a casualty, Tenant shall be responsible for
any
deficiency between the replacement cost of the Premises and the
amount
actually paid by the insurance company.
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5.
MAINTENANCE AND REPAIR
(a) Tenant
shall, during the term of this Lease and any
extension or renewals
thereof, (i) maintain the Land and all buildings
and improvements thereon (interior and exterior, structural and
otherwise) in good order and repair, subject to normal wear and
tear
(and subject to provisions hereof relating to condemnation and
casualty) and perform all its obligations to maintain
Appurtenant
Interests as are imposed on Landlord or Tenant by the
instruments
granting such Appurtenant Interests; (ii) not commit waste or
permit
impairment or deterioration of the Premises (normal wear and
tear
excepted and subject to the provisions hereof relating to casualty
and
condemnation); (iii) keep the Tenant's Property, including
trade
fixtures, equipment, machinery and appliances thereon so that
such
items function as originally intended and shall replace such items
of
Tenant's Property when necessary in accordance with Tenant's
normal
operations to keep such items so that such items function as
originally
intended; (iv) comply in all material respects with all laws,
ordinances, regulations and requirements of any governmental
body
applicable to the Premises (provided, however, Tenant shall have
the
right to contest the same); (v) provide prompt notification to
Landlord
of any material adverse changes to the Premises, such as
material
changes in any environmental condition, including the presence
of
biocontaminants, such as, but without limitation mold, and
shall
promptly undertake reasonable remediation (and preventative)
actions in
connection with any such environmental condition on the Land and
the
improvements thereon (to the extent required by applicable
environmental law); and (vi) subject to the provisions of
Paragraph
4(a) with respect to damage within the last twenty-four (24) months
of
the Lease resulting from a casualty, and Paragraph 6 herein, return
the
Premises and all buildings and improvements thereon at the
expiration
of the term of this Lease or any extension or renewal thereof in
as
reasonably as good condition as when received, subject to normal
wear
and tear (and subject to provisions hereof relating to condemnation
and
casualty) and surrender the Appurtenant Interests and shall
have
performed all of its obligations, if any, with respect to
maintaining
such Appurtenant Interests.
(b) Tenant
agrees that Landlord shall have no obligation
under this Lease to make any repairs or replacements (including
the
replacement of obsolete components) to the Premises or the
buildings or
improvements thereon, or any alteration, addition, change,
substitution
or improvement thereof or thereto, whether structural or otherwise.
The
terms "repair" and "replacement" include, without limitation,
the
replacement of any portions of the Premises for which Tenant is
responsible hereunder that have outlived their useful life during
the
term of this Lease (or any extensions or renewals thereof).
Landlord
and Tenant intend that the Rent received by Landlord shall be free
and
clear of any expense to Landlord for the construction, care,
maintenance (including common area maintenance charges and
charges
accruing under easements or other agreements relating to the
Premises),
operation,
repair, replacement, alteration, addition, change,
substitution and improvement of or to the Premises. Upon the
expiration
or earlier termination of this Lease, Tenant shall remain
responsible
for, and shall pay to Landlord, any cost, charge or expense for
which
Tenant is otherwise responsible for hereunder attributable to
any
period (prorated on a daily basis) prior to the expiration or
earlier
termination of this Lease.
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(c) Tenant
acknowledges and agrees that the Premises are
and shall be leased by Landlord to Tenant in its present "AS
IS"
condition, and that Landlord makes absolutely no representations
or
warranties whatsoever with respect to the Premises or the
condition
thereof. Tenant acknowledges that Landlord has not investigated
and
does not warrant or represent to Tenant that the Premises are fit
for
the purposes intended by Tenant or for any other purpose or
purposes
whatsoever, and Tenant acknowledges that the Premises are to be
leased
to Tenant in their existing condition, i.e., "AS IS", on and as of
the
Effective Date.
6.
CONDEMNATION
(a) In the
event a Material Taking shall occur during the
term of this Lease or any extension or renewal, then in such
event,
Tenant shall have the option of terminating this Lease as of a date
no
earlier than the date of such Material Taking, such termination
date to
be specified in a written notice of termination to be given by
Tenant
to Landlord not fewer than fourteen (14) days prior to the date
on
which possession of the Premises, or the affected part thereof,
must be
surrendered to the condemning authority or its designee.
(b) In the
event of any Taking which does not constitute
a Material Taking or in the event Tenant does not elect to
terminate
this Lease upon the occurrence of a Material Taking, then this
Lease
shall terminate only with respect to the portion of the Premises
taken
by such Taking and Landlord shall make its award available to
Tenant
and Tenant shall, to the extent of the award from such Taking
(which
term "award" shall mean the net proceeds after deducting expenses
of
any settlement, or net purchase price under a sale in lieu of a
Taking), promptly restore or repair the Premises (except those
items of
Tenant's Property which Tenant is permitted to remove under the
terms
of this Lease unless the award expressly includes compensation for
such
items) to substantially the same condition as existed immediately
prior
to such Taking insofar as is reasonably possible. If the estimated
cost
of restoration or repair shall exceed the amount of Landlord's
award,
Tenant shall deposit with Landlord the amount of such excess. The
award
and any excess shall be held in trust by Landlord and made
available by
Landlord to Tenant, to the extent required herein, for the purpose
of
such restoration or repair. A just and proportionate part of the
Rent
payable hereunder shall be abated from the date of such Taking
until
ten (10) days after Tenant has restored the same and thereafter
the
Rent shall be reduced in proportion to the reduction in the then
rental
value of
the Premises after the Taking in comparison with the rental
value prior to the Taking. Landlord and Tenant shall make a good
faith
determination of the rental value of the Premises after such
Taking
based upon the negative economic impact of the Taking upon the
profitability of the business of Tenant conducted at the Premises.
If
the award (excluding any portion of the award belonging to
Tenant
pursuant to Paragraph 6(c) below) shall exceed the amount spent or
to
be spent promptly to effect such restoration, repair or
replacement,
such excess shall unconditionally belong to Landlord and shall be
paid
to Landlord.
(c) In the
event of any Taking that does not result in
the termination of this Lease, Tenant shall not be entitled (except
for
use in reconstruction as set forth herein) to
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<PAGE>
any part of the compensation or award given Landlord for the Taking
of
the Land, but Tenant shall have the right to recover from the
condemning authority such compensation as is specifically awarded
to
Tenant (i) to reimburse Tenant for any Taking of Tenant's Property
or
for any cost which Tenant may incur in removing Tenant's Property
from
the Premises and (ii) for loss of Tenant's business.
(d) If this
Lease is terminated by reason of a Taking,
then Landlord shall be entitled to receive the entire award in any
such
condemnation or eminent domain proceedings or purchase in lieu
thereof
and Tenant hereby assigns to Landlord all of its right, title
and
interest in and to all and any part of such award, provided,
however,
Tenant shall be entitled to receive any award specifically made
to
reimburse Tenant for any Taking of Tenant's Property, moving
expenses
or business losses.
7.
TAXES AND ASSESSMENTS
(a) Except as
set forth herein, Tenant shall pay prior to
delinquency all taxes and assessments which may be levied upon
or
assessed against the Land and all the improvements located thereon
(and
the Appurtenant Interests to the extent levied upon or assessed
against
Tenant as the direct or indirect beneficiary of such
Appurtenant
Interests) with respect to any Lease Year and all taxes and
assessments
of every kind and nature whatsoever arising in any way from the
use,
occupancy or possession of the Land and all the improvements
located
thereon (and the Appurtenant Interests to the extent levied upon
or
assessed against Tenant as the direct or indirect beneficiary of
such
Appurtenant Interests) with respect to any Lease Year, together
with
all taxes levied upon or assessed against Tenant's Property
with
respect to any Lease Year. To that end, except as otherwise
expressly
provided below, Landlord shall not be required to pay any taxes
or
assessments whatsoever which relate to or may be assessed with
respect
to any Lease Year against this Lease, the Rent and other amounts
due
hereunder, the Premises or Tenant's Property; provided, however,
that
any taxes or assessments which may be levied or assessed against
the
Land and all the improvements located thereon (and the
Appurtenant
Interests to the extent levied upon or assessed against Tenant as
the
direct or indirect beneficiary of such Appurtenant Interests) for
a
period ending after the termination hereof shall be prorated
between
Landlord and Tenant as of such date. Landlord agrees to provide
to
Tenant,
within ten (10) business days after its receipt thereof, any
tax bills and other legal or governmental notices relating to
the
Premises that Landlord receives. Notwithstanding any terms of
this
Lease to the contrary, nothing contained in this Paragraph 7 or
elsewhere in this Lease shall obligate Tenant to pay (i) any
income,
profit, franchise or similar tax that may be imposed upon or
assessed
against Landlord with respect to the Rent and income derived from
this
Lease under any law now in force or hereafter enacted, or (ii) to
pay
any inheritance, estate, succession, gift or any form of
property
transfer tax which may be assessed or levied against Landlord
(excluding any real estate assessments based on value after a
transfer
to a third party).
(b) Within
thirty (30) days after Tenant receives any
paid receipted tax bills relating to the Premises, Tenant shall
furnish
Landlord with copies thereof. Tenant may, at its option, contest
in
good faith and by appropriate and timely legal proceedings any tax
or
assessment relating to the Premises; provided, however, that
Tenant
shall
11
<PAGE>
indemnify and hold Landlord harmless from any loss or damage
resulting
from any such contest, and all expenses of the same (including,
without
limitation, all attorneys' and paralegal fees, and court and
other
costs) shall be paid solely by Tenant. Landlord shall, at the
request
of Tenant, execute or join in the execution of any instruments
or
documents necessary in connection with such contest or proceedings,
but
Landlord shall incur no cost or obligation thereby.
8.
COMPLIANCE, UTILITIES, SURRENDER
(a) Tenant, at
its expense shall (i) promptly comply in
all material respects with all municipal, county, state, federal
and
other governmental requirements and regulations, whether or not
compliance therewith shall require structural or other changes in
the
Land and the improvements thereon (and the Appurtenant Interests to
the
extent properly imposed upon Tenant as the direct or indirect
beneficiary of such Appurtenant Interests); (ii) obtain and
maintain
all permits, licenses and other authorizations required for the use
of
the Premises or any part thereof then being made by Tenant and for
the
lawful and proper installation, operation and maintenance by Tenant
of
all equipment and appliances necessary or appropriate for the
operation
and maintenance of the Land and the improvements thereon (and
the
Appurtenant Interests to the extent properly imposed upon Tenant as
the
direct or indirect beneficiary of such Appurtenant Interests);
and
(iii) comply in all material respects with all easements,
restrictions,
reservations and other instruments of record applicable to the
Premises, including without limitation, any requirement in such
instruments on behalf of the owner or occupant of the Land and
improvements thereon (and the direct or indirect beneficiary of
the
Appurtenant Interests) to obtain and maintain insurance, and
whether
now in effect or recorded during the term of this Lease,
provided,
however that Landlord shall not execute or record any
easements,
restrictions or other instruments against or affecting the
Premises
without the prior written consent of Tenant. Tenant shall indemnify
and
save Landlord harmless from all expenses and damages by reason of
any
notices, orders,
violations or penalties filed against or imposed upon
the Premises, or against Landlord as owner thereof, because of
Tenant's
failure to comply with this paragraph. Notwithstanding the
foregoing,
Tenant shall be entitled to contest any governmental
requirement,
restriction or other matter described above so long as all
costs
incurred in connection therewith are paid by Tenant.
(b) Tenant
shall pay all charges for heat, water, gas,
sewage, electricity and other utilities used or consumed on the
Land
and the improvements thereon (and the Appurtenant Interests to
the
extent properly imposed upon Tenant as the direct or indirect
beneficiary of such Appurtenant Interests) during the term hereof
and
shall contract for the same in its own name. Landlord shall not
be
liable for any interruption or failure in the supply of any
such
utility service to the Premises, except to the extent such
interruption
or failure results from the willful misconduct or gross negligence
of
Landlord or its agents, employees or contractors.
(c) Tenant
shall peacefully surrender possession of the
Premises
(excluding Tenant's Property), to Landlord at the expiration,
or earlier termination, of the original term of this Lease or
any
extension or renewal thereof.
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<PAGE>
9.
QUIET ENJOYMENT
Landlord covenants and warrants that Landlord has full power
and
authority to enter into this Lease, and
that Tenant shall have and enjoy full,
quiet and peaceful possession of the
Premises, its appurtenances and all rights
and privileges incidental thereto during
the term hereof and any extension or
renewal thereof, subject to the provisions
of this Lease and any easements,
restrictions, reservations and other
instruments of record applicable to the
Premises and in existence at the time of
the conveyance of the Premises to
Landlord by Tenant or thereafter (subject,
however, to the restriction on
Landlord's ability to execute and record
such easements, restrictions and
instruments, as described in Paragraph 8
above). Landlord agrees to cause the
holder of any mortgage now or hereafter
relating to the Premises to execute and
deliver to Tenant a Subordination and
Nondisturbance Agreement in the form
contemplated by Paragraph 18.
10. OPTION TO
RENEW
Tenant shall have four (4) successive five (5) year options to
extend
the original term of this Lease for up to
an additional twenty (20) years upon
the same terms, covenants, conditions and
rental as set forth herein, provided
that Tenant is not in Default (as hereafter
defined, beyond applicable periods
of notice and cure) hereunder at the
commencement of the applicable option
period. In the event Tenant elects not to
exercise the option to extend the term
hereof for the next succeeding five (5)
year option period, Tenant shall give
written notice to Landlord not less than
six (6) months prior to the
then-existing expiration date of the term
hereof. Should Tenant fail to give
Landlord such timely written notice during
the required period, this Lease shall
automatically renew for the next succeeding
five (5) year option period pursuant
to the terms hereof.
11.
NONCOMPETE
Tenant shall not own an interest in, or operate, an O'Charley's
Restaurant (other than the restaurant at
the Premises or any O'Charley's
Restaurant currently operating as of the
date hereof) within a one (1) mile
radius of the Land during the term of this
Lease and any renewals hereof.
Violation of this covenant shall, at
Landlord's option, be and constitute a
default hereunder and, because the parties
agree that damages would not be an
adequate remedy, Tenant hereby agrees that
Landlord shall be entitled to
equitable relief, including injunctive
relief and specific performance in
addition to any remedy available at law.
Tenant further agrees that the
restrictions and the duration of such
restrictions set forth in this paragraph
are reasonable under the circumstances and
in particular, in relation to
Tenant's restaurant business.
Notwithstanding the foregoing, the requirements of
this Paragraph 11 shall not apply to (a)
any O'Charley's Restaurant in which
Tenant owns an interest or operates as of
the Effective Date, or (b) any other
type or concept of restaurant (other than
an O'Charley's Restaurant) now or
hereafter owned or operated by Tenant.
12.
DEFAULT
(a) If any one
or more of the following events occur,
said event or events shall hereby be referred to as a
"Default":
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<PAGE>
(i) If Tenant
fails to pay Rent or any other charges
required (x) under this Lease or at Landlord's option, under any
other
lease or agreement dated as of the date hereof or within ninety
(90)
days of the date hereof with Landlord or an affiliate of Landlord
when
same shall become due and payable, provided, however, the aggregate
of
all amounts in default under such Leases exceeds the sum of
Fifty
Thousand Dollars ($50,000.00), and (y) such failure continues for
ten
(10) days or more after written notice from Landlord. In the event
of
any such default, Landlord shall be entitled to the default
interest
rate specified in the applicable leases (if any) during the term of
any
such default, and any of Tenant's monies deposited with Landlord
shall
be immediately and irrevocably assigned to Landlord to apply to
any
obligations of Tenant owed to Landlord in any manner Landlord
deems
necessary.
(ii)
If Tenant shall fail to perform or observe any term,
condition, covenant, agreement, or obligation required: (x) under
this
Lease or at Landlord's option, any other lease or other agreement
dated
as of the date hereof or within ninety (90) days of the date
hereof
with Landlord or an affiliate of Landlord; and (y) such failure
continues for thirty (30) days after written notice from
Landlord
(except that such thirty (30) day period shall be automatically
extended for such additional period of time as is reasonably
necessary
to cure such Default, if such Default cannot reasonably be cured
within
such period, provided Tenant is in the process of diligently curing
the
same).
(iii) If
Tenant fails to continuously operate its business
upon the Land except for temporary periods of closure caused by
casualty, condemnation, repairs, Acts of God, or temporary and
reasonable periods of remodeling or while actively seeking to
sublease
or assign the Premises, not to exceed (in any such event) two
hundred
seventy (270) days (plus any additional period as may reasonably
be
required in order to repair or restore the Premises following a
casualty or condemnation so long as Tenant has been diligently
proceeding with such repair or restoration) in any Lease Year
without
first obtaining Landlord's written approval.
(iv)
If Tenant shall make
an assignment for the benefit of
creditors or file a petition, in any federal or state court, in
bankruptcy or reorganization, or make an application in any
such
proceedings for the appointment of a trustee or receiver for all or
any
portion of its property.
(v) If any
petition shall be filed under federal or state
law against Tenant in any bankruptcy, reorganization, or
insolvency
proceedings, and said proceedings shall not be dismissed or
vacated
within ninety (90) days after such petition is filed.
(vi)
If a receiver or trustee shall be appointed under
federal or state law for Tenant for all or any portion of the
property
of Tenant, and such receivership or trusteeship shall not be set
aside
within ninety (90) days after such appointment.
Notwithstanding the foregoing, a default
under any such other lease or agreement
as of the date hereof or within ninety (90)
days of the date hereof with
Original Tenant that has been (x) assigned
to or become the subject of a
sublease with a franchisee of Original
Tenant (and provided such franchisee is
not then in monetary default under such
other lease or agreement), or
14
<PAGE>
(y)sold and assigned by Original Tenant to
an unrelated third party, shall not
be deemed to be, or considered in
determining the existence of, a Default
hereunder. Likewise, a Default hereunder
shall not be deemed to be, or
considered in determining the existence of,
a default under any such other lease
or agreement as of the date hereof or
within ninety (90) days of the date hereof
originally with Original Tenant that has
been (xx) assigned to or become the
subject of a sublease with a franchisee of
Original Tenant or (yy) sold and
assigned by Original Tenant to an unrelated
third party.
(b) During the
continuance of any one or more of the
aforementioned Defaults which are not cured within the cure
period
applicable thereto, if any, Landlord shall have the right, in
addition
to any other rights and remedies, to terminate this Lease by
giving
written notice of same to Tenant. Upon such notice, this Lease
shall
cease and expire, and Tenant shall surrender the Premises to
Landlord.
Notwithstanding such termination, Tenant's liability and
obligation
under all provisions of this Lease, including the obligation to
pay
Rent
and any and all other amounts due hereunder shall survive and
continue. In lieu of Tenant's continuing obligations hereunder (and
as
final liquidated damages therefor), during the continuance of
Tenant's
Default under this Lease, Landlord may, by notice to Tenant,
accelerate
the monthly installments of Rent due hereunder for the remaining
term
of this Lease. If Landlord does accelerate the Rent due hereunder,
then
the accelerated Rent shall be equal to the Rent which accrued prior
to
the date of termination, plus the Rent that would have accrued
during
the balance of the term (not including any renewal (term(s) not
theretofore exercised by Tenant) of the Lease (as if this Lease had
not
been terminated), less the fair rental value of the Premises for
the
corresponding period, plus any and all reasonable expenses
which
Landlord may have incurred in re-letting the Premises including,
but
not limited to,
allocable overhead, reasonable alterations to the
building to protect the integrity of existing improvements or
to
facilitate reletting of the existing improvements and the
Premises,
leasing, construction, architectural, reasonable legal and
accounting
fees. The accelerated Rent shall be discounted to present value at
an
annual interest rate equal to eight and one-half percent (8.5%).
Tenant
hereby expressly agrees that its occupation of the Premises after
any
such termination constitutes forcible detainer (or equivalent) as
is
defined by the law in force in the jurisdiction in which the Land
is
located. Tenant further agrees that in the event of a Default,
any
monies deposited by Tenant with Landlord shall be immediately
and
irrevocably assigned and released to Landlord (without further
action
by Landlord or Tenant) to be applied by Landlord against any and
all of
Tenant's obligations under this Lease, in any manner as Landlord
may
determine.
(c) If this
Lease shall terminate as provided
hereinabove, Landlord may re-enter the Premises and remove Tenant,
its
agents and subtenants, together with all or any of Tenant's
Property,
by suitable action at law, or by force. Tenant waives any right to
the
service of any notice of Landlord's intention to re-enter and
Landlord
shall not be liable in any way in connection with any action it
takes
pursuant to this paragraph. Notwithstanding such re-entry or
removal,
Tenant's liability under this Lease shall survive and continue
unless
Tenant has paid in full the liquidated damages set forth in
Paragraph
12(b) above.
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<PAGE>
(d) In case of
re-entry, repossession or termination
(following a Default) of this Lease (unless Landlord exercises
its
right to liquidated damages as described above), Tenant shall
remain
liable for Rent, any additional rent and all other charges provided
for
in this Lease for the otherwise remaining term of this Lease as
and
when due hereunder, and any and all expenses which Landlord may
have
incurred in re-entering the Premises including, but not limited
to,
allocable overhead, alterations to the building, leasing,
construction,
architectural, legal and accounting fees. Landlord shall have
the
right, but not the obligation (provided, however, that Landlord
shall
use reasonable efforts to mitigate Tenant's damages), to relet
the
whole or part of the Premises upon terms which Landlord, in its
reasonable discretion, deems appropriate and Tenant shall be
responsible for all expenses incurred by Landlord in reletting
or
attempting to relet and all rent collected from reletting shall
be
credited against all of Tenant's obligations hereunder.
(e) In the
event of a Default, Landlord may, at its sole
option, enter upon the Premises, if deemed necessary by Landlord in
its
sole discretion, and/or do whatever may be deemed necessary by
Landlord
in its sole discretion to cure such Default by Tenant. Tenant shall
pay
to Landlord within five (5) days after Landlord's request, all
costs
incurred by Landlord in connection with Landlord's curing of
such
Default. In addition to the above costs, in the event Landlord does
not
receive payment from Tenant when due under this Paragraph 12(e),
then
interest at the rate of ten percent (10%) per annum or, if less,
the
highest rate allowable by law, shall be due and payable with
respect to
such payment from the due date thereof until Landlord receives
such
payment.
(f) In the
event of a Default, if Landlord engages legal
counsel in connection with the enforcement of any of the terms
and
provisions of this Lease, then, in addition to all other sums due
from
Tenant to Landlord under this Lease, Tenant shall pay to Landlord
(if
Landlord is the prevailing party) any and all attorneys' fees,
paralegal fees, and legal costs and expenses incurred by
Landlord,
whether or not judicial proceedings are filed, and including on
appeal
and in any bankruptcy proceedings.
(g)
Notwithstanding the foregoing, in the event Tenant
fails (beyond any applicable cure periods set forth herein) to
(1)
maintain and keep in full force and effect any or all of the
insurance
policies required pursuant to Paragraph 4 of this Lease, or (2)
pay
when due any and all taxes and/or assessments levied or
assessed
against the Premises, then in the event Landlord does not
terminate
this Lease, and at Landlord's request and in Landlord's sole
discretion, Tenant shall escrow funds for payment of such
insurance
premiums and taxes and assessments in the following manner:
(i) Tenant
shall immediately pay to Landlord all sums
expended by Landlord, plus an additional ten percent (10%)
thereof
(which shall not be a penalty, but shall instead become part of
the
"Escrow Funds" described below), for purposes of: (1) bringing
current
or reinstating or purchasing the insurance required under Paragraph
4
of this Lease; and/or (2) paying all taxes and assessments which
are
past due or currently due. Thereafter, Tenant shall pay to Landlord
on
the first (1st) business day of each month along with the
monthly
payment of Rent a sum (the "Escrow Funds") equal to one-twelfth
(1/12th) of: (A) the yearly premium(s) for the insurance required
to be
maintained by Tenant pursuant to Paragraph 4 of this Lease; and/or
(B)
the annual taxes
16
<PAGE>
and assessments levied or assessed against the Premises as
reasonably
estimated by Landlord, based on the prior year's taxes and
assessments
levied or assessed against the Premises.
(ii)
Landlord shall apply the Escrow Funds to pay said
insurance and/or taxes and assessments. No interest shall be
payable by
Landlord on the Escrow Funds unless required by applicable law,
in
which event all such interest shall be first applied by Landlord to
pay
such insurance premiums and/or taxes and assessments. Landlord
shall
provide to Tenant an annual accounting of the Escrow Funds in
Landlord's normal format showing credits and debits to the Escrow
Funds
and the purpose for which each debit to the Escrow Funds was
made.
(iii) If
the amount of the Escrow Funds held by Landlord at
the time of the annual accounting thereof shall exceed the
amount
deemed necessary by Landlord to provide for the payment of such
insurance premiums and/or taxes and assessments as they become
due,
such excess shall be credited to Tenant against the next
monthly
installment or installments of Escrow Funds due. If at any time
the
amount of the Escrow Funds held by Landlord shall be less than
the
amount deemed necessary by Landlord to pay such insurance
premiums
and/or taxes and assessments as they become due, Tenant shall pay
to
Landlord any amount necessary to make up the deficiency within
thirty
(30) days after written notice from Landlord to Tenant
requesting
payment thereof.
(iv)
The foregoing Escrow Funds arrangement shall
terminate if Tenant fully and faithfully complies with the
provisions
of this Paragraph 11(g) for a period of twenty-four (24)
consecutive
months. Upon the termination or expiration of this Lease or
upon
termination of the foregoing Escrow Funds arrangement pursuant to
the
preceding sentence, Landlord shall promptly refund (or credit to
Tenant
against amounts due to Landlord in the case of termination due
to
Tenant's Default) any Escrow Funds held by Landlord.
(h) The rights
and remedies of Landlord set forth herein
shall be in addition to any other right and remedy now or
hereafter
provided by law, and all such rights and remedies shall be
cumulative.
No action or inaction by Landlord shall constitute a waiver of
any
Default, and no waiver of any Default shall be effective unless it
is
in writing, signed by Landlord.
13. HOLDING
OVER
In the event Tenant remains in possession of the Premises after
the
expiration of this Lease without executing
a new written lease acceptable to
Landlord and Tenant, Tenant shall occupy
the Premises as a tenant from month to
month subject to all the terms hereof
(except as modified by this Paragraph),
but such possession shall not limit
Landlord's rights and remedies by reason
thereof nor constitute a holding over. In
the event of such month to month
tenancy, the monthly installment of Rent
due for each such month shall increase
to be one hundred fifty percent (150%) the
monthly installment thereof which was
payable during the last month of the term
of this Lease.
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14. WAIVER OF
SUBROGATION
Notwithstanding anything in this Lease to the contrary, other
than
Tenant's obligations to repair, restore or
rebuild described in Paragraph 4 of
this Lease, neither party shall be liable
to the other for any damage or
destruction of the Premises resulting from
fire or other casualty covered by
insurance required of either party
hereunder, whether or not such loss, damage
or destruction of the Premises is caused by
or results from the negligence of
such party (which term includes such
party's officers, employees, agents and
invitees), and each party hereby expressly
releases the other from all liability
for or on account of any said insured loss,
damage or destruction, whether or
not the party suffering the loss is insured
against such loss, and if insured
whether fully or partially. Notwithstanding
the foregoing, the waiver and
release provisions set forth above shall
not apply with respect to an action of
either party hereto that has the effect of
voiding the applicable insurance
