1
LIMITED WAIVER
THIS LIMITED WAIVER (this "Waiver"), dated as of September 1, 1994,
relates to that certain Credit Agreement dated as of October 12, 1988, and
amended and restated as of September 14, 1989 (as further amended through the
date hereof, the "Credit Agreement"), among Kash n' Karry Food Stores, Inc.
(the "Borrower"), the Senior Lenders referred to therein and Bank of America
National Trust and Savings Association (as successor in interest to Security
Pacific National Bank) as agent (in such capacity, the "Agent") for the Senior
Lenders. Unless otherwise defined herein, terms defined in the Credit Agreement
are used herein with the same meanings ascribed to them therein.
RECITALS
WHEREAS, pursuant to the Leasehold Purchase Agreement between the
Borrower and Office Depot, Inc. ("ODI") attached hereto as Exhibit A (the
"Leasehold Purchase Agreement"), the Borrower has agreed to assign to ODI, and
ODI has agreed to assume, all of the Borrower's interest in that certain Lease
dated April 29, 1977 by and between the Borrower and Donasa N.V.; and
WHEREAS, in connection with the consummation of the assignment and
assumption under the Leasehold Purchase Agreement, the Borrower and ODI intend
to enter into an Indemnification Agreement in the form attached hereto as
Exhibit B (the "Indemnification Agreement");
NOW, THEREFORE, in consideration of the foregoing premises (all of
which are incorporated herein as a part of this Waiver) and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower, the Agent and the Senior Lenders agree as follows:
1. Limited Waiver. Subject to the terms and conditions set forth
herein, the Requisite Senior Lenders hereby agree to waive the provisions of
Section 8.04 of the Credit Agreement in respect (and solely in respect) of the
Borrower's incurrence of Accommodation Obligations in respect of indemnities
arising under the Leasehold Purchase Agreement and the Indemnification
Agreement.
2. Effective Date. This Waiver shall become effective as of
September 1, 1994 upon the date the following conditions have been satisfied:
(a) the Agent shall have received counterparts hereof signed by the
Borrower, the Requisite Senior Lenders and the Agent; and
2
(b) the Agent shall have received payment in cash in same day funds in
the amount of $134,496.12 with respect to certain fees and expenses of the
Agent (including professional fees).
3. Representations and Warranties. The Borrower hereby represents
and warrants that, as of the date hereof, and after giving effect to this
Waiver:
(a) The execution, delivery and performance by the Borrower of
this Waiver has been duly authorized by all necessary corporate action;
(b) No Event of Default or Potential Event of Default (other
than those expressly waived by this Waiver) has occurred or is continuing;
and
(c) The representations and warranties of the Borrower
contained in Section 5.03 of the Credit Agreement and any other Loan
Document (other than representations and warranties which expressly speak
as of a different date) are true, correct and complete in all material
respects, except that such representations and warranties need not be true,
correct and complete to the extent that changes in the facts and conditions
on which such representations and warranties are based are required or
permitted under the Credit Agreement.
4. Limitation on Waiver. This Waiver shall be limited solely to
the matters expressly set forth herein and shall not (i) constitute a waiver or
amendment of any other term or condition of the Credit Agreement, or of any
instruments or agreements referred to therein, (ii) prejudice any right or
rights which the Agent or any of the Senior Lenders may now have or may have in
the future under or in connection with the Credit Agreement or any instruments
or agreements referred to therein, or (iii) require the Senior Lenders to agree
to a similar waiver or grant a similar waiver for a similar transaction or on a
future occasion. Except to the extent specifically waived herein, the
provisions of the Credit Agreement shall not be amended, modified, impaired or
otherwise affected hereby, and the Credit Agreement and all of the Obligations
are hereby confirmed in full force and effect.
5. Miscellaneous. This Waiver is a Loan Document and, together
with the Credit Agreement and the other Loan Documents, comprises the complete
and integrated agreement of the parties on the subject matter hereof. The
headings herein are for convenience of reference only and shall not alter or
otherwise affect the meaning hereof.
-2-
3
6. Governing Law. This Amendment shall be governed by, and shall
be construed and enforced in accordance with, the laws of the State of New York.
7. Counterparts. This Amendment may be executed in any number of
counterparts which, when taken together, shall be deemed to constitute one and
the same instrument.
WITNESS the due execution hereof as of the date first above written.
KASH N' KARRY FOOD STORES, INC., as
Borrower
By: /s/ R. P. Springer
-----------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (as successor in
interest to SECURITY PACIFIC NATIONAL
BANK), as Agent
By: /s/ Laura Knight
-----------------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (as successor in
interest to SECURITY PACIFIC NATIONAL
BANK), as a Senior Lender
By: /s/ Linda A. Carper
-----------------------------------
Title: Vice President
WELLS FARGO BANK, N.A.
By: /s/ Jeffrey P. Rose
-----------------------------------
Title: Vice President
-3-
4
BARNETT BANK OF TAMPA (as successor in
interest to First Florida Bank, N.A.),
by BARNETT BANKS, INC., as
attorney-in-fact for Barnett Bank of
Tampa
By: /s/ Kyle R. Beall
-----------------------------------
Title: Department Manager
NATIONSBANK OF FLORIDA, N.A.
By: /s/ Samuel P. McNeil
-----------------------------------
Title: Vice President
-4-
5
EXHIBIT A
TO
LIMITED WAIVER
DATED AS OF SEPTEMBER 1, 1994
LEASEHOLD PURCHASE AGREEMENT
Attached.
6
LEASEHOLD PURCHASE AGREEMENT
This Leasehold Purchase Agreement ("Agreement") is made this 11 day of
March, 1994 (the "Effective Date") by and between KASH N' KARRY FOOD STORES,
INC., a Delaware corporation ("Seller") and OFFICE DEPOT, INC., a Delaware
corporation ("Buyer").
RECITALS
A. Seller is the successor tenant under that certain Lease dated April
29, 1977, (the "Lease"), a Recording Indenture of which was recorded on March
7, 1984 in the Official Records of Pasco County in Official Records Book 1318,
at Page 0121, by and between LEO MARK and MICHAEL LYONS, as Landlord, and THE
GRAND UNION COMPANY, as tenant, pertaining to premises located in a shopping
center located at 9474 U.S. Highway 19, Port Richey, Florida (the "Premises").
DONASA N.V., a Netherlands Antilles corporation, is the successor landlord (the
"Landlord") under the Lease.
B. Seller desires to assign to Buyer all of its right, title and
interest in and to the Lease on the terms and conditions set forth in this
Agreement.
C. Buyer desires to take an assignment of the Lease, subject to the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. The Assignment. On the Closing Date (hereinafter defined), Seller
and Buyer shall each enter into an assignment and assumption agreement in the
form set forth on EXHIBIT "A" attached hereto (the "Assignment"), wherein
Seller assigns to Buyer all of its right, title and interest in and to the
Lease, and Buyer assumes all of the tenant obligations under the Lease from and
after the date of the Assignment.
2. Purchase Price. The total purchase price (the "Purchase Price") for
the Lease shall be the sum of Two Hundred Fifty Thousand Dollars ($250,000.00).
The Purchase Price shall be paid in immediately available funds at Closing.
3. Earnest Money Deposit. Within five (5) business days of the final
execution of this Agreement by both parties, Buyer shall deliver to the local
office of Lawyer's Title Insurance Company (the "Title Company"), to be held in
escrow, the sum of Twenty-Five Thousand Dollars ($25,000) as the earnest money
deposit (which deposit, together with all interest earned thereon, is
hereinafter referred to as the "Earnest Money"). The Earnest Money is to be
applied toward the total Purchase Price due at Closing. The balance of the
Purchase Price shall be paid by current funds or cashier's check at Closing.
The Earnest
1
7
Money shall be refunded to Buyer if it elects within the Due Diligence Period
(hereinafter defined) to terminate this Agreement as provided in Section 4
hereof. If this Agreement has not been terminated by Buyer within the Due
Diligence Period, then the Earnest Money shall, subject to the satisfaction of
all the Closing Conditions (hereinafter described), become non-refundable
(unless Seller defaults hereunder).
4. Conditions Precedent to Closing. Buyer's obligation to close the
transaction contemplated hereunder shall be subject to the following conditions
(hereinafter referred to as the "Closing Conditions"):
4.1 Due Diligence Review. Buyer shall have a period commencing on
the date of this Agreement and continuing until the end of the sixtieth (60th)
day following the date on which Seller delivers to Buyer the last of the items
to be delivered by Seller to Buyer as specified in paragraph 4.1(f), below (the
"Due Diligence Period") in which to satisfy or waive Buyer's conditions to
Closing set forth hereinbelow. During the Due Diligence Period, Buyer, at its
sole cost and expense, may inspect, or cause its agents and representatives to
inspect, the Premises and conduct such tests thereon as Buyer may reasonably
deem appropriate. Such inspection shall take place in the presence of a
representative of the Seller, and at a mutually agreed-upon time which shall,
in any event, be after the regular business hours of the store. Buyer shall
provide the Seller with notice when such inspection has been completed and of
the results of such inspection. Buyer shall be responsible for repairing
damage caused by it during such inspections, which covenant shall survive the
termination of this Agreement. If Buyer is dissatisfied with the results of
any of the reviews, testing, studies or inspections referred to in this Section
4.1 for any reason whatsoever (in its sole and absolute discretion), then Buyer
shall have the right to terminate this Agreement prior to the end of the Due
Diligence Period, by written notice to Seller to that effect, and to recover
the Earnest Money and thereupon neither party shall have any further liability
to the other in connection with this Agreement. If Buyer fails to give notice
as required by the preceding sentence within the Due Diligence Period, Buyer
shall be deemed to have accepted all of the matters enunciated below to be
inspected and reviewed during the Due Diligence Period. Buyer's obligation to
proceed with the purchase of the Lease shall be conditioned upon satisfaction
(or Buyer's express written waiver) of each of the following conditions:
(a) Physical Condition and Suitability. Buyer's review and
approval of the physical condition of the Premises and all
building systems including but not limited to roof, structural,
electrical and mechanical systems, as well as the suitability of
the Premises for use as an Office Depot store.
(b) Zoning/Governmental Actions. Buyer's review and approval
of zoning and land use regulations applicable to the Premises,
and investigation and approval of any condemnation or other
governmental actions which may affect the use of the Premises.
2
8
(c) Environmental Review. Buyer's approval of the environmental
condition of the Premises, to be based on Buyer's independent
examination (at its sole cost) for the presence or absence of
Hazardous Materials on, within, or below the Premises. Such
inspection shall, take place in the presence of a representative
of the Seller; at a mutually agreed-upon time which shall, in any
event, be after regular business hours of the store; and after
the Leasehold Purchase Agreement has been executed by the Buyer
and the Seller. Buyer shall provide the Seller with notice when
such inspection has been completed and the results of such
inspections. Buyer shall be responsible for repairing damage
caused by it during such inspections, which covenant shall survive
the termination of this Agreement. As used herein, the term
"Hazardous Materials" shall mean any material or substance that
is now or hereafter or regulated by any statute, law, rule,
regulation or ordinance or that is now or hereafter designated by
any governmental authority to be radioactive, toxic, hazardous or
otherwise a danger to health, reproduction or the environment,
including, without limitation, asbestos, asbestos containing
material, urea formaldehyde and urea formaldehyde containing
material.
(d) Utilities. Approval by Buyer of the availability of utility
services to the Premises adequate for Buyer's proposed use
thereof.
(e) Title. The Seller's leasehold title in and to the Leases
shall be good and marketable and subject to no liens,
restrictions, easements or other encumbrances having the effect
of diminishing the tenant rights or entitlements under the Lease,
except as may be approved by Buyer.
(f) Plans and Documents. Buyer's review and approval of the
following documents to be delivered by Seller to Buyer within
five (5) business days of the Effective Date of this
Agreement: (i) "as-built" plans for the buildings and other
improvements comprising the Premises (or, if "as-built" plans are
not available, and cannot be obtained with reasonable effort and
expense, the best plans as are available to Seller); (ii) legible
copies of the Lease, and any amendments thereto, and any lease
assignments, subleases or other documents constituting Seller's
"chain of title"; (iii) legible copies of all CAM, tax,
insurance, maintenance and repair, utilities, and all other
occupancy cost records for the two calendar years immediately
preceding the date of the Agreement; (iv) legible copies of all
service contracts, utility contracts, maintenance contracts,
presently effective warranties or guaranties received by Seller
from any contractors, subcontractors, suppliers or materialmen in
connection with any construction, repairs or alterations of the
Premises, certificates of occupancy, environmental reports, and
such other documents pertaining to the condition of the Premises,
and the use, occupancy, maintenance and repair thereof as are in
the possession or under the control of Seller.
3
9
4.2 Representations and Warranties of Seller. All of the
representations and warranties of Seller, as set forth in Section 8, below, are
true and correct as of the Closing.
4.3 Building Permits. Buyer has procured, within forty-five (45)
days following the expiration of the Due Diligence Period, or is satisfied (in
its sole discretion) that it will be able to procure, any building, sign and
other permits required by governmental authorities in connection with Buyer's
contemplated improvements to the Premises (including without limitation
erection of pylon and/or building signs in accordance with Buyer's operational
standards).
4.4 Landlord's Consent. Prior to the Closing Date, Seller shall
use all reasonable efforts to obtain from the Landlord the fully executed (by
all parties thereto) consent and estoppel agreement in the form and content set
forth in EXHIBIT "B" attached hereto and incorporated herein by this reference,
or in form and content otherwise reasonably acceptable to Buyer, which
agreement is hereinafter referred to as the "Landlord Agreement".
5. Title. Title in and to the Lease shall be conveyed to Buyer subject
to no liens, encumbrances, restrictions, easements or other defects except as
may be approved in writing by Buyer. Buyer shall notify Seller in writing
within twenty (20) days from the receipt of a Title Report for the Premises (to
be obtained by Buyer at its sole cost but not later than ten (10) days prior to
the expiration of the Due Diligence Period) of its objection to title
exceptions. If Buyer fails to give written notice of objection to the
condition of title of the Premises at least five (5) days prior to the
expiration of the Due Diligence Period, Buyer shall be deemed to have approved
the condition of title of the Premises for which no notice was given. Seller
shall have until Closing to eliminate any exception to title objected to by
Buyer. In the event Seller cannot eliminate any exception to title objected to
by Buyer, it shall so notify Buyer in writing prior to expiration of the Due
Diligence period, in which case Buyer may elect (a) to terminate this
Agreement, or (b) to waive its objection(s) and proceed to Closing.
6. Delivery of Possession of the Premises. Seller shall deliver
possession of the Premises to Buyer at the time Closing. Prior to Closing,
Seller shall remove its furniture, trade fixtures and removable equipment (not
including HVAC equipment and trash compactors) from the Premises and shall
repair any damage caused by such removal. Seller shall deliver the Premises to
Buyer on or before the date of Closing in broom-clean condition.
7. Closing and Closing Costs.
7.1 Closing Date. The consummation of the assignment and transfer
contemplated hereunder (the "Closing") shall occur on or before 4:00 PM EST on
the tenth (10th) business day following the date Buyer obtains its Building
Permits or on such earlier
4
10
date as may be mutually agreed upon by the parties.
7.2 [Deleted]
7.3 Closing Costs. Rents, real property taxes, and operating
costs including any such amounts paid or payable under any reciprocal casement
agreement shall be prorated as of the Closing Date. Seller and Buyer shall
each pay for one-half of the escrow costs. Buyer shall pay any title costs,
and Seller shall pay any excise or transfer taxes or fees. Any costs payable
to the Landlord in connection with obtaining the required consent of the
Landlord shall be paid by Seller. Commission costs shall be paid as provided in
paragraph 10 of this Agreement. All other closing costs, if any, shall be
divided evenly between the parties at Closing.
7.4 Assignment Effective Date. The date on which the Assignment
shall become effective shall be the date of Closing (the "Effective Date").
From and after the Effective Date, Buyer shall be entitled to all of the rights
of tenant under the Lease, and be obligated to comply with all of tenant
obligations under the Lease (including without limitation the payment of all
rental obligations under the Lease).
8. Representations and Warranties of Seller. To the best of Seller's
information and belief, as of the date hereof and as of the Effective Date,
Seller hereby represents and warrants to, and covenants with Buyer, as follows:
8.1 No Defaults. There exists no default or any condition which,
with the passage of time, the giving of notice, or both will become a default
under the Lease or any reciprocal easement agreement.
8.2 Documents. The plans, specifications, certificates of
occupancy, warranties, guaranties, occupancy cost records and other books,
records or documents delivered to Buyer in connection with this Agreement are
true, correct and complete copies of such documents.
8.3 Litigation. There is no litigation pending or, to the best of
Seller's knowledge, after due and diligent inquiry, threatened against Seller,
nor any basis therefore, that arises out of the Lease or Seller's use or
occupancy of the Premises, or that detrimentally affect the value of the
Premises, or the ability of Seller to perform its obligations under this
Agreement. Seller shall notify Buyer promptly of any such litigation of which
Seller becomes aware.
8.4 Enforceable Documents. This Agreement and all documents
executed by Seller which are to be delivered to Buyer at the Closing are and
will be duly authorized, executed and delivered by Seller, and be legal, valid
and binding obligations of Seller enforceable against Seller in accordance with
their respective terms, and sufficient to convey Seller's leasehold interest in
the Premises (if they purport to do so). This Agreement and
5
11
such documents do not violate any provision of any Lease, agreement or judicial
order to which Seller is subject.
8.5 Lease. The copy of the Lease delivered by Seller to Buyer
contains all of the information pertaining to any rights of any parties to
occupy the Premises.
8.6 Changes to Shopping Center/Eminent Domain. There are no
pending plans by the landlord and/or governmental authorities to take or make
any material changes to the Shopping Center of which the Premises are a part
or any entrances/exits to and from adjoining roads serving the Shopping Center.
9. Indemnification.
9.1 Survival of Representations. All representations, warranties,
covenants and agreements made by either party under this Agreement or pursuant
hereto shall be true, complete and correct as of the date hereof and as of the
Closing as though such representations, warranties, covenants and agreements
were made at and as of the date of Closing. Each representation, warranty,
covenant and agreement shall survive the Closing.
9.2 Seller's Indemnifications. Seller agrees to indemnify,
protect, defend and hold Buyer and Buyer's directors, officers, stockholders,
employees, agents, representatives, affiliates and their respective successors
and assigns harmless from and against (i) any and all claims, expenses, or
liabilities arising from personal injuries which occurred or are alleged to
have occurred on or about the Premises prior to the date of Closing; and (ii)
any and all damages arising out of or resulting from (a) any breach or default
by Seller under the terms of the Leases or any reciprocal easement agreement
arising prior to the Closing, or (b) any breach of the warranties,
representations or covenants of Seller under this Agreement or the Assignment.
9.3 Buyer's Indemnification. Buyer agrees to indemnify, protect,
defend and hold Seller and Seller's directors, officers, stockholders,
employees, agents, representatives, affiliates and their respective successors
and assigns, harmless from and against (i) any and all claims, expenses, or
liabilities arising from personal injuries which occurred or are alleged to
have occurred on or about the Premises on or after the date of Closing; and
(ii) any and all damages arising out of or resulting from (a) any breach or
default by Buyer under the terms of the Lease or any reciprocal easement
agreement occurring from and after the Effective Date or (b) any breach of the
warranties, representations or covenants of Buyer under this Agreement or the
Assignments.
10. Brokers. Seller and Buyer represent and warrant to the other that
they have not had any dealings with any real estate broker, finder, or other
person, with respect to this Agreement, except for Commercial Corners, Inc. and
Lancore Realty, Inc. whose fees will be paid by the Seller and each party
hereby agrees to indemnify and hold harmless the other in connection with any
losses or damages sustained as a result of its breach of such representation
and warranty.
6
12
11. [Deleted]
12. Miscellaneous.
12.1 Reformation and Severability. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under the present or
future laws effective during the term hereof, the legality, validity and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
12.2 Headings. The headings of sections or paragraphs contained
in the Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement.
12.3 Waiver. The failure of any party to insist, in any one or
more instances, upon performance of any of the terms, covenants or conditions of
this Agreement shall not be construed as a waiver or a relinquishment of any
right or claim granted or arising hereunder or of the future performance of any
such term, covenant, or condition, and such failure shall in no way affect the
validity of this Agreement or the rights and obligations to the parties hereto.
12.4 Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without giving
effect to the conflict of laws, rules or choice of laws or rules thereof.
12.5 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument not withstanding
that all parties are not signatories to each counterpart.
12.6 Assignability and Binding Effect. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
12.7 Amendments. This Agreement may not be modified, amended or
supplemented except by an agreement in writing signed by all of the parties
hereto.
12.8 Number and Gender of Words. When the masculine and
feminine are required in this Agreement, words of gender shall include either
or both genders and a singular number shall include the plural.
12.9 Attorney's Fees. In the event any suit or proceeding is
brought to enforce, construe, interpret, rescind or cancel this Agreement, or
any of its provisions, the prevailing party shall recover against the other
party all of its reasonable attorneys' fees and costs incurred in connection
with such action or proceeding, including any appellate proceedings.
7
13
12.10 Integration. This Agreement and the exhibits attached
hereto, constitute the entire agreement of the parties hereto regarding the
assignment of the Leases and there are no other agreements, written or oral,
express or implied, in connection with the assignment of the Leases, between
the parties hereto, except as set forth herein.
12.11 Notices. All notices, requests, demand, instructions, or
other communications to be made hereunder to the parties hereto shall be in
writing (at the address set forth below) and shall be given by any of the
following means (a) personal service; (b) electronic facsimile; (c) certified
mail, postage prepaid, return receipt requested; or (d) commercial overnight
courier that guarantees next day delivery and provides a receipt, and such
notices or other communication shall be addressed as follows:
If to Seller: Kash n' Karry
6422 Harney Road
Tampa, FL 33680
Attn: Ronald E. Sarrett
with a copy to: [to be provided]
If to Buyer: Office Depot, Inc.
2200 Old Germantown Road
Delray Beach, FL 33445
Attn: Vice President of Real Estate
with a copy to: Office Depot, Inc.
2200 Old Germantown Road
Delray Beach, FL 33445
Attn: Legal Department
Any notice or other communication given as aforesaid shall be effective
upon receipt. Either party may change its address for notice by written notice
as aforesaid, which change of address shall be effective three (3) business
days following receipt by the party to whom such address change notice is sent.
12.11 Time is of the Essence. Time is expressly made of the
essence with respect to every term and provision of this Agreement. The parties
acknowledge that each will be relying upon the timely performance by the other
of its obligations hereunder as a material inducement to each party's execution
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
8
14
BUYER: OFFICE DEPOT, INC., a Delaware corporation
By: /s/ David I. Fuente
-------------------------------------
Its: Chairman and CEO
-------------------------------------
SELLER: KASH N' KARRY FOOD STORES, INC., a Delaware
corporation
By: /s/ Ronald Sarrett
-------------------------------------
Its: VICE PRESIDENT
-------------------------------------
By: /s/ R. P. Springer
--------------------------------------
Its: Exec. Vice President
--------------------------------------
9
15
EXHIBITS
EXHIBIT "A" FORM OF ASSUMPTION AND ASSIGNMENT AGREEMENT
EXHIBIT "B" CONSENT AND ESTOPPEL CERTIFICATE
10
16
EXHIBIT A
ASSIGNMENT OF LEASE
This Assignment is made this____day of February, 1994, by and between
KASH N' KARRY FOOD STORES, INC., a Delaware corporation ("Assignor") and OFFICE
DEPOT, INC., a Delaware corporation ("Assignee").
WITNESSETH:
WHEREAS, Assignor is currently the party-in-interest as lessee under,
in and to that certain lease agreement, together with all amendments,
supplements and modifications thereto and assignments thereof (collectively,
the "Lease"), dated April 29, 1977, between LEO MARK and MICHAEL LYONS, as
lessors, and THE GRAND UNION COMPANY, as lessee; and
WHEREAS, the premises demised under the Lease (the "Premises") consist
of a certain building or portion thereof (as particularly described in the
Lease) located on a certain tract of improved property located at 9474 U.S.
Highway 19, Port Richey, Florida, and legally described as set forth on
Schedule "A" attached hereto and made a part hereof; and
WHEREAS, Assignor desires to assign all of the lessee's interest under
the Lease to Assignee, and Assignee desires to assume all the lessee's
obligations under the Lease.
NOW THEREFORE, in consideration of the Premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Assignment. Assignor hereby assigns, transfers and conveys to
Assignee, its successors and assigns, all of Assignor's rights, title and
interest in and to the Lease, effective as of the date hereof (the "Effective
Date").
2. Assumption. Assignee hereby accepts this assignment of the Lease,
and hereby assumes and agrees to perform all of the obligations of Assignor, as
the lessee, under the Lease accruing from and after the Effective Date.
3. Assignor's Indemnification. Assignor agrees to indemnify, protect,
defend and hold Assignee and Assignee's respective directors, officers,
stockholders, employees, agents, representatives, affiliates and their
respective successors and assigns harmless from and against any and all damages
arising out of or resulting from any breach or default by Assignor under the
terms of the Lease arising prior to the Effective Date. Assignor shall
reimburse Assignee upon demand for any reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees and costs, which
Assignee actually incurs in fulfilling
A-1
17
Assignor's obligations under this Agreement.
4. Assignee's Indemnification. Assignee agrees to indemnify, protect,
defend and hold Assignor and Assignor's respective directors, officers,
stockholders, employees, agents, representatives, affiliates and their
respective successors and assigns, harmless from and against any and all
damages arising out of or resulting from any breach or default by Assignee
under the terms of the Lease occurring from and after the Effective Date.
Assignee shall reimburse Assignor upon demand for any reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees and costs,
which Assignor actually incurs in fulfilling Assignee's obligations under this
Agreement.
5. Counterparts. This Assignment may be executed in counterparts, and
as so executed shall constitute one Assignment, binding on each of the parties
hereto, notwithstanding that each of the parties are not signatories to the
same counterpart.
6. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
7. Modifications. This Assignment may not be amended, modified or
terminated except by agreement in writing duly executed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as
of the day and year first above written.
Attest (as to Assignor)
Assignor: KASH N' KARRY FOOD STORES,
INC., a Delaware corporation
- ----------------------- By:
Title: ---------------------------------
Its:
---------------------------------
- -----------------------
Title:
Attest (as to Assignee)
Assignee: OFFICE DEPOT, INC., a Delaware
Corporation
- ----------------------- By:
Title: ---------------------------------
Its:
---------------------------------
A-2
18
COUNTY OF _______________ )
)ss.
STATE OF _______________ )
On this____ day of ________, 1994, before me, the undersigned a Notary
Public in and for said State, personally appeared _________________________,
and _________________ known to me to be (or proved to me on the basis of
satisfactory evidence) to be the persons who executed the within instrument as
the __________ and _________________ of KASH N' KARRY FOOD STORES, INC., a
Delaware corporation, the corporation that executed the within instrument
pursuant to its bylaws or a resolution of its Board of Directors.
WITNESS my hand and official seal.
____________________________
Signature
NOTARY STAMP
STATE OF FLORIDA )
)ss.
COUNTY OF PALM BEACH )
On this ____ day of ________________________, 1994, before me,
the undersigned, a Notary Public in and for said State, personally
appeared_________________________, personally known to me to be (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as the ____________ of OFFICE DEPOT, INC., a
Delaware corporation, the corporation that executed the within instrument, and
acknowledged to me that such corporation executed the within instrument
pursuant to its bylaws or a resolution of its Board of Directors.
WITNESS my hand and official seal.
____________________________
Signature
NOTARY STAMP
A-3
19
Schedule A
LEGAL DESCRIPTION
A-4
20
EXHIBIT B
CONSENT AND ESTOPPEL CERTIFICATION
THIS AGREEMENT is made and entered into as of the ____ day of February,
1994, by and between ________________________ a ___________________
(hereinafter "Lessor"), and OFFICE DEPOT, INC., a Delaware corporation
(hereinafter "Depot").
WITNESSETH:
WHEREAS, LEO MARK AND MICHAEL LYONS, as lessor, and KASH N' KARRY FOOD
STORES, INC. ("Lessee") as lessee, entered into a certain lease agreement dated
April 27, 1977, which lease, as amended, is hereinafter referred to as the
"Lease"; and
WHEREAS, the premises demised under the Lease consist of certain land
and improvements comprising Kash N' Karry Store # 205 (as particularly
described in the Lease) located on a certain tract of improved property located
in a shopping center located at 9474 U.S. Highway 19, Port Richey, Florida,
legally described as set forth on EXHIBIT A attached hereto and made a part
hereof (the "Leased Premises"); and
WHEREAS, Lessee desires to assign to Depot all of its rights, title and
interest in and to the Lease, and Depot desires to take an assignment of
Lessee's interest in the Lease and assume the Lessee's obligations thereunder
from and after the effective date of such assignment, provided that Lessor
shall agree and certify as provided herein, and
WHEREAS, it is the mutual desire of the Lessor and Depot to establish
certain contractual rights, obligations and agreements between each other
relative to the Leased Premises and the Lease.
NOW THEREFORE, knowing that this Consent and Certification will be
relied upon by Depot and by Lessee in consummating the assignment and assumption
of the Lease, Lessor hereby agrees and certifies to Depot, its successors and
assigns, as follows:
1. Estoppel. The Lease is currently in full force and effect, and no
defaults exist thereunder (either in connection with the obligations of lessor
or lessee), nor has any event or circumstance occurred which with the giving of
notice or passage of time would constitute a default under the Lease.
2. The Lease. A correct and complete copy of the Lease (inclusive of
all amendments, modifications and exhibits thereof) is attached hereto as
EXHIBIT B.
3. Consent. The undersigned (Lessor) hereby grants its consent to the
assignment and assumption of the Lease.
B-1
21
4. Rental Obligations. All fixed rental obligations under the Lease
are current and paid through ____________, 199_; and all common area
maintenance charges (if any) are current and paid through __________, 199_; and
all tax charges payable to Lessor are current and paid through __________,
199_; and all charges for insurance premiums (if any) payable to Lessor are
current and paid through ______________, 199_ except as follows:
[None] _______________
5. Default. In the event of any default under the Lease prior to the
effective date of the assignment to Depot, Lessor shall give Depot ten (10)
business days notice prior to terminating the Lease. During such ten (10)
business day period, Depot shall have the right (but not the obligation) to
cure any default thereunder which is curable.
6. Signage. Lessor hereby agrees to allow Depot (subject to applicable
municipal codes) to install its standard logo signs in the same location(s),
and of at least the same size, as the signage (both building and pylon signage)
previously allotted to Lessee.
7. Alterations. Landlord understands that Depot will be performing
certain remodeling and alterations to the Premises in connection with the
opening of its Office Depot store therein, and that such alterations may
include (without limitation) any of the following:
(i) the installation of a non-penetrating roof mounted satellite
dish antennae (for transmission of sales and inventory information) as more
specifically described on Exhibit "B" attached hereto; and
(ii) any of the work described on Exhibit "C" attached hereto.
In connection with Depot's plans and working drawing for such
alterations (which are to be furnished to Landlord for its approval to the
extent required under the Lease), Landlord agrees not to unreasonably withhold
its approval thereof to the extent that the structural integrity of the
building is not impaired or the value thereof diminished, and that the roof is
not penetrated or otherwise adversely affected.
8. Use. That for so long as Depot remains liable under the Lease, the
use of the Premises may be changed to any other lawful retail use, subject to
Landlord's consent (not to be unreasonably withheld).
9. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
10. Modifications. This Agreement may not be amended, modified or
terminated except by agreement in writing duly executed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement as of the date first above written.
B-2
22
Witnesses (as to Lessor):
_________________________(LESSOR)
________________________ By: ____________________________
Its: ____________________________
________________________
Witnesses (as to Tenant): OFFICE DEPOT, INC., (Depot)
________________________ By: ____________________________
Richard Blews
________________________ Its: Assistant Secretary
STATE OF _______________ )
) SS:
COUNTY OF ______________ )
BEFORE ME, the undersigned authority, duly authorized to administer
oaths and take acknowledgements, personally appeared ____________________ as
_____________________ of ________________________________________, a
________________________________, and acknowledged the foregoing in his/her
capacity as same for the purposes herein described on behalf of the
_______________________, this _____ day of _______________________, 1994.
_______________________(SEAL)
Notary Public
State of ___________________
My Commission Expires:
B-3
23
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
BEFORE ME, the undersigned authority, duly authorized to administer
oaths and take acknowledgements, personally appeared Richard Blews as Assistant
Secretary of OFFICE DEPOT, INC., a Delaware corporation, and acknowledged the
foregoing in his capacity as same for the purposes herein described on behalf
of the corporation, this _______ day of _________________, 1994.
________________________(SEAL)
Notary Public
State of Florida
My Commission Expires:
B-4
24
EXHIBIT B
TO
LIMITED WAIVER
DATED AS OF SEPTEMBER 1, 1994
INDEMNIFICATION AGREEMENT
Attached.
25
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this ________ day
of July, 1994, by and between KASH N' KARRY FOOD STORES, INC., a Delaware
corporation (hereinafter referred to as "Kash n' Karry"), and OFFICE DEPOT,
INC., a Delaware corporation (hereinafter referred to as "Office Depot").
WHEREAS, Kash n' Karry and Office Depot executed a certain Assignment
of Lease dated _______________, 1994 (the "Assignment"), pursuant to which Kash
n' Karry assigned to Office Depot all of its interest in that certain Lease
dated April 29, 1977, a short form of which was recorded in the Public Records
of Pasco County, Florida, on March 7, 1984, in Official Records Book 1318, Page
121, as modified by an unrecorded Modification of Lease Agreement dated August
31, 1977, and a Second Modification to Lease dated September 15, 1978
(hereinafter referred to as the "Lease"), pursuant to which Kash n' Karry
leases from Donasa Corp., as successor landlord (the "Landlord"), certain real
property and improvements located in Pasco County, Florida, and more
particularly described in the Lease (the "Premises"); and
WHEREAS, in consideration of Office Depot's execution of the Assignment
and its agreement to assume Kash n' Karry's duties and obligations under the
Lease, Kash n' Karry has agreed to indemnify Office Depot for certain costs and
damages that Office Depot may incur as a result of Kash n' Karry's assignment
to Office Depot and the improvements to be constructed on the Premises by
Office Depot;
NOW THEREFORE, in consideration of the sum of Ten and 00/100 Dollars
($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by all parties hereto, the parties
hereto agree as follows:
1. Kash n' Karry hereby agrees to indemnify and hold harmless
Office Depot from and against any and all loss, damage, claims, liability,
costs and expenses (including, but not limited to, reasonable attorneys' fees)
and other sums that Office Depot may reasonably pay or may become obligated to
pay in the event a lawsuit is initiated by the Landlord against Office Depot
within one (1) year following the date of this Agreement as a result of the
failure of the Landlord to provide a written consent to the assignment of the
Premises to Office Depot, as requested by Office Depot, or arising from the
construction of the improvements on the Premises by Office Depot, which
improvements have not been expressly approved in writing by the Landlord, as
requested by Office Depot; provided, however, that any amounts owed to Office
Depot by Kash n' Karry pursuant to this Agreement shall be offset against any
amounts paid by the Landlord to Office Depot pursuant to the Lease or by court
order as reimbursement for costs incurred by Office Depot in defending a
lawsuit initiated by the Landlord.
26
2. Kash n' Karry's liability under this Agreement shall be limited
to the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00).
3. Execution and delivery of this Agreement by Kash n' Karry and
Office Depot shall not constitute an acknowledgment or admission that any
consent of the Landlord is required for the assignment from Kash n' Karry to
Office Depot or the construction of improvements on the Premises by Office
Depot.
4. In the event any amounts due from Kash n' Karry to Office Depot
hereunder are not paid within sixty (60) days after the same have been
incurred, demand made to Kash n' Karry on account thereof and reasonable
evidence of Office Depot having incurred the same being presented to Kash n'
Karry, such amount shall bear interest from the date of demand (after the
furnishing of such evidence) at an interest rate equal to the prime rate of
interest as reported in the Wall Street Journal.
5. Kash n' Karry agrees that, in the event the Landlord institutes
a lawsuit against Office Depot arising from the construction of the
improvements on the Premises by Office Depot, and an injunction against future
construction by Office Depot is issued in connection with such lawsuit, which
prevents Office Depot from constructing the improvements necessary to operate
an Office Depot on the Premises, Office Depot may terminate the Assignment and
Kash n' Karry will return all sums paid by Office Depot to Kash n' Karry
pursuant to said Assignment. Notwithstanding the foregoing, Kash n' Karry
shall have the right, in the event an injunction is issued, to attempt to have
the injunction dissolved and, if Kash n' Karry is successful in dissolving the
injunction within a period not to exceed sixty (60) days from the issuance of
such injunction, and Office Depot is allowed to continue construction of its
improvements on the Premises, the Assignment, and all rights and obligations
thereunder, shall continue in full force and effect, including, but not limited
to, Office Depot's obligation to pay to Kash n' Karry the Purchase Price (as
defined in that certain Leasehold Purchase Agreement dated March 11, 1994,
between Office Depot and Kash n' Karry).
6. Office Depot agrees that all improvements that it constructs on
the Premises will be substantially in compliance with the terms and conditions
of the Lease pertaining to the construction of improvements.
7. In connection with any litigation arising out of this
Agreement, the prevailing party shall be entitled to recover all costs and
expenses incurred, including reasonable attorneys' fees for services rendered
prior to trial, at trial, and on appeal.
2
27
8. This Agreement shall be binding upon the successors and assigns
of Kash n' Karry and inure to the benefit of Office Depot and its successors
and assigns.
9. This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first written above.
Signed, sealed and delivered
in the presence of: KASH N' KARRY FOOD STORES, INC.,
a Delaware corporation
_______________________________ By: ________________________________
Name: _________________________ Name: __________________________
Title:__________________________
_______________________________
Name: ________________________
_______________________________ By: ________________________________
Name: ________________________ Name: __________________________
Title:__________________________
_______________________________
Name: ________________________
OFFICE DEPOT, INC., a Delaware
corporation
_______________________________ By: ________________________________
Name: ________________________ Name: __________________________
Title:__________________________
_______________________________
Name: ________________________
3