Exhibit 4.3.11
AGREEMENT OF COVENANTS, CONDITIONS AND RESTRICTIONS
(TRIPARTITE AGREEMENT)
THIS AGREEMENT (this "Agreement"), dated as of December 21, 1993,
by and among SMITH'S FOOD & DRUG CENTERS, INC., as Lessee (the "Lessee"),
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as owner trustee (the "Lessor")
for PMCC Leasing Corporation under the Trust Agreement dated as of December
21, 1993, and CALIFORNIA-RELCO LIMITED PARTNERSHIP TRUST, as the
Remainderman (the "Remainderman").
R E C I T A L S :
1. Reference is made to that certain Participation Agreement
dated as of the date hereof (the "Participation Agreement") among the
Lessee, PMCC Leasing Corporation, as the Owner Participant, Philip Morris
Capital Corporation, as Owner Participant Parent, the Lessor, the
Remainderman, Wilmington Trust Company, not in its individual capacity,
except as expressly stated in the Participation Agreement, but solely as
the Indenture Trustee, the Pass Through Trustee, and Remainderman Trustee
under the Remainderman Trust Agreement, California-Relco Limited
Partnership, as Remainderman Participant, and Bank of America, National
Trust and Savings Association, as Initial Noteholder. Capitalized terms
used herein and not otherwise defined herein have the meanings ascribed to
them in Appendix A to the Participation Agreement.
2. The Remainderman owns the Remainderman Interests and the
Lessor owns the Lessor Interests.
3. The Remainderman Interests and the Lessor Interests together
constitute the Properties.
4. Pursuant to the Option Agreement, the Remainderman has
granted options to the Lessor, pursuant to which the Lessor may (a) lease
the Land from the Remainderman and (b) purchase the Related Remainderman
Interest from the Remainderman (the "Owner Options").
5. Pursuant to Section 12 of each Lease, the Lessee has options
to extend the term of such Lease upon expiration of the Basic Term for the
Renewal Terms specified therein.
6. Pursuant to Section 9 of each Lease, such Lease may
terminate under the circumstances described in such Lease, whereupon the
Related Property will be Transferred by the Lessor and the Remainderman to
the Lessee.
7. Pursuant to Section 14 of each Lease, the Lessee may, in the
event that the Related Leased Property has become obsolete or uneconomic
for use in Lessee's business, either (a) terminate such Lease or (b)
substitute a property for the Related Property.
8. The parties hereto wish to set forth certain agreements and
understandings regarding their respective rights in and to the Properties
as described on Exhibit A.
A G R E E M E N T :
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties mutually
agree as follows:
1. Notices between Parties. Whenever any party to this
Agreement gives any notice to any other party to this Agreement relating to
any Lease, this Agreement or the Option Agreement, such notice shall also
be given to the other party to this Agreement. No such notice shall be
deemed to have been effectively given under any Lease, this Agreement or
the Option Agreement until given as provided in the preceding sentence.
2. Provisions Relating to Lease Terminations and Substitutions.
(a) In the event that the Lessee elects or becomes
obligated to purchase any Leased Property from the Lessor pursuant to
Section 9 or Section 14 of any Lease for a purchase price equal to Casualty
Value or Termination Value, as applicable, the Lessee will also be
obligated to purchase the Related Remainderman Interest in accordance with
the terms and conditions hereof, at a price equal to the Remainderman's
Termination Value pursuant to Schedule 2 or Schedule 3 of the Related
Lease, as applicable, and Remainderman agrees to sell such Related
Remainderman Interest to Lessee upon receipt of such purchase price.
(b) In the event that the Lessee elects under Section 14(d)
of any Lease to substitute a Substitute Parcel for the Related Property,
the Remainderman agrees to take all actions reasonably requested by Lessee
or Lessor to permit such substitution to be completed, provided that the
requirements of Section 14(d) of the applicable Lease are satisfied with
respect to the Remainderman.
3. Provisions Relating to Sale of the Properties to Third
Parties.
(a) Agreement to Participate in Sales. The Remainderman
hereby agrees that if at any time the Lessor agrees to convey all or any
portion of the Lessor Interest in any Property to any third party
(including the Lessee), and such third party desires to purchase the
Related Remainderman Interest at the same time as it purchases the Lessor
Interest, the Remainderman will convey its corresponding Remainderman
Interest in the Related Property to the purchaser of the Lessor Interest
upon payment to the Remainderman of a purchase price equal to the Fair
Market Sales Value of the applicable Remainderman Interest. At the closing
of any such transfer as contemplated herein, the Remainderman shall deliver
such other documents, affidavits and certificates as are reasonably
required to effectuate the transfer of title.
(b) Allocation of Sales Proceeds. If both the Lessor
Interest and the Related Remainderman Interest in any Property are sold to
a third party, and if the allocations of the aggregate purchase price among
the respective interests in such Property is not agreed upon or otherwise
allocated between the Lessor and the Remainderman pursuant to the
applicable purchase agreements, the Fair Market Sales Value shall be deemed
to be the net sales proceeds of such Property and the Fair Market Sales
Value of the Related Lessor Interest plus the Fair Market Sales Value of
the Related Remainderman Interest shall be deemed to be equal to the net
sales proceeds of such Property, and the net sales proceeds of such
Property shall be disbursed as follows:
(i) to the Indenture Trustee, such amount as is
payable to the Indenture Trustee pursuant to the terms of
the Indenture, if any;
(ii) to the Lessor, an amount equal to the Fair
Market Sales Value of Lessor Interest in the Property
less the amount payable to the Indenture Trustee pursuant
to the terms of the Indenture; and
(iii) to the Remainderman, an amount equal to the
Fair Market Sales Value of the Remainderman Interest in
the Property.
4. Proceeds from Condemnation.
(a) In the event that all or any portion of any net award from a
Condemnation is payable to the Lessor pursuant to any Lease, the Fair
Market Sales Value of the portion of the Property taken shall be deemed to
equal such net award and the Fair Market Sales Value of the Lessor Interest
which was taken plus the Fair Market Value of the Remainderman Interest
which was taken shall be deemed to be equal to the net award, and the net
award will be distributed as follows:
(i) to the Indenture Trustee, such amount as is
payable to the Indenture Trustee pursuant to the terms of
the Indenture, if any;
(ii) to the Lessor, an amount equal to the then
Fair Market Sales Value of that part of the Lessor
Interest which was taken less the amount payable to the
Indenture Trustee pursuant to the terms of the Indenture;
and
(iii) to the Remainderman, an amount equal to the
then Fair Market Sales Value of that part of the
Remainderman Interest that was taken.
(b) If all or any portion of any net award is payable to the
Lessee pursuant to the Lease in question, the Remainderman will join with
the Lessor in assigning such award to the Lessee in accordance with the
terms of the relevant Lease.
5. Conveyance Procedure and Power of Attorney. In the event of a
conveyance of any Property in accordance with this Agreement, on the
applicable conveyance date, the Lessor and/or the Remainderman will convey
their respective interests in such Property in accordance with this
Agreement. If the Remainderman shall fail to comply with the applicable
provisions of this Agreement, the Lessor may, and shall have the right and
power (which right and power are coupled with an interest), and is hereby
irrevocably appointed the agent and attorney-in-fact of the Remainderman
and of any and every future assignee or owner of any interest in the
Property, to take all actions necessary to comply with the applicable
provisions of this Agreement, including, without limitation, the execution
and delivery, in the name and on behalf of the Remainderman or other
assignee or owner of any interest in the Property, of deeds or other
instruments of conveyance or assignment conveying and assigning the Related
Remainderman Interest.
6. Fair Market Sales Value. If the Lessor and the Remainderman
cannot agree upon the Fair Market Sales Value of their interests for
purposes of this Agreement, Fair Market Sales Value will be determined,
except as otherwise provided herein, pursuant to the Appraisal Procedure.
In determining the Fair Market Sales Value of the Remainderman Interest,
such Remainderman Interest shall be considered as encumbered by the Ground
Lease, the Option Agreement and this Agreement.
7. Negative Covenants. The Remainderman will not (a) sell,
lease, transfer, convey, assign or otherwise dispose of their respective
interests in the Properties except to an entity which agrees to comply with
the negative covenants set forth in this Section 7 and executes a written
agreement to be bound by all of the agreements to which the Remainderman is
a party; (b) create, directly or indirectly, any mortgage, lien,
encumbrance, charge or other exception to title or ownership upon or
against its interest in the Properties or any part thereof, other than as
contemplated by the Transaction Documents; (c) guarantee any obligation of
any person; (d) engage directly or indirectly in any business other than
the acquisition and ownership of its interest in and leasing of the
Properties; (e) create, assume or suffer to exist any indebtedness for
borrowed money; (f) dissolve or merge with or consolidate into any other
entity; or (g) amend, modify or otherwise change its charter, by-laws or
trust agreement in any material manner; (h) amend or terminate the Option
Agreement without the prior written consent of the Lessee; or (i) transfer
all or any part of the Remainderman Interests to any entity which is not
Delaware Business Trust or similar trust entity.
8. Non-Disturbance and Attornment. In the event that the Ground
Lease is in effect and terminates for any reason during the term of the
Related Lease, so long as no Event of Default or Special Default shall have
occurred and be continuing and the Lessee shall attorn to and recognize
Remainderman as the lessor under the Related Lease and shall promptly
execute and deliver any instrument that Remainderman may reasonably request
to evidence such attornment, the Lessee's possession of the Property
pursuant to such Lease shall not be disturbed and the Lease shall continue
in full force and effect as a direct lease between the Lessee, as lessee,
and Remainderman, as lessor (and Remainderman shall execute, and deliver to
Lessee any documents reasonably requested by the Lessee to evidence or
confirm such direct lease). In such event the Lessee agrees that
Remainderman shall not be:
(a) liable for any act or omission of any prior
lessor under the Lease; or
(b) subject to any offsets or defenses which the
Lessee might have against any prior lessor; or
(c) bound by any obligation of any prior lessor to
make any payment to the Lessee.
9. Granting of Easements. The Remainderman shall execute any
easement, license, right of way or other document after the execution of
same by the Lessor pursuant to Article 20 of each Lease.
10. Notices. All notices and other instruments given or
delivered pursuant to this Agreement shall be in writing, and the giving of
such notice or other communication shall be deemed to have been completed
when delivered in accordance with Section 13.1 of the Participation
Agreement.
11. Rule Against Perpetuities, etc. If any option under this
Agreement would, in the absence of the limitation imposed by this Section
11, be invalid or unenforceable as being in violation of the rule against
perpetuities or any other rule of law relating to the vesting of an
interest in property or the suspension of the power of alienation of
property, then any option hereunder shall be exercisable only during the
period which shall end 20 years and 6 months after the date of death of the
last survivor of the descendants of Joseph P. Kennedy, father of the late
President John F. Kennedy, alive on the date of the execution and delivery
of this Agreement.
12. Successors and Assigns. In connection with a transfer
permitted under the Transaction Documents, the Lessee, the Lessor and the
Remainderman may each assign its rights under this Agreement, provided, any
such transferee shall assume the obligations of the Lessee, the Lessor or
the Remainderman hereunder, as the case may be. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors, assigns and grantees.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
14. No Amendments to Transaction Documents. The Lessor shall not
enter into any amendment, modification or supplement to the Indenture which
increases the obligations, or so long as no Event of Default has occupied
or is continuing diminishes the rights, of the Lessee under the respective
Leases without the prior written consent of the Lessee, and any such
amendment, modification or supplement executed without the Lessee's prior
written consent shall have no binding effect on the Lessee under the
respective Leases. The rights of the Lessee and the Remainderman under
this Section are subordinate to the Indenture and any Supplemental
Indenture and neither the Remainderman nor the Lessee shall have any rights
against the Indenture Trustee in connection with any amendment to the
Indenture or any Supplemental Indenture, nor shall this Section affect the
validity or enforceability of any such amendment.
15. Equitable Relief. The parties agree that any breach of this
Agreement would cause irreparable damage and that, in the event of such
breach, the aggrieved party shall have, in addition to all remedies at law,
the right to an injunction, specific performance or other equitable relief
to prevent the violation of the defaulting party's obligations hereunder.
16. Certificates of Compliance. Upon the request of any party,
not more frequently than annually, each party to this Agreement will
deliver to the other parties a certificate signed by an officer or general
partner of such party certifying that such party is in full compliance with
the terms and conditions of this Agreement and the Related Lease.
17. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original and together shall
constitute one and the same instrument.
18. Concerning the Trustees. State Street Bank and Trust Company
of California, National Association, is entering into this Tripartite
Agreement not in its individual capacity but solely as Owner Trustee under
the Trust Agreement. Each of the obligations of the Owner Trustee herein
are made solely for the purpose of binding the Owner Trustee, and State
Street Bank and Trust Company of California, National Association, in its
individual capacity shall have no liability whatsoever with respect
thereto.
19. Nature of Obligations. The obligations hereunder are
covenants running with the Land and are superior to any subsequent
encumbrance or transfer of the Remainderman Interest or the Land.
IN WITNESS WHEREOF, the parties, by authority duly given, have
executed this Tripartite Agreement as of the day and year first written
above.
SMITH'S FOOD
& DRUG CENTERS, INC.,
as the Lessee
By:/s/Michael C. Frei
Michael C. Frei
Senior Vice President
By:/s/John A. Garraty, Jr.
John
A. Garraty, Jr., his attorney-in-fact
STATE STREET BANK AND TRUST
COMPANY OF
CALIFORNIA, NATIONAL ASSOCIATION, not in its
individual
capacity, but solely as Owner Trustee under
the Trust Agreement
By:/s/W. Jeffrey Kramer
Name:
Title:
CALIFORNIA-RELCO LIMITED
PARTNERSHIP TRUST, as Remainderman
By: William J. Wade, not in his individual
capacity, but solely as Trustee
By:/s/William J. Wade
William J. Wade
State of New York )
)
County of New York)
On December 28, 1993, before me, Paul Brian Silverman, Notary
Public, personally appeared John A. Garraty, Jr. personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal
/s/ Paul Brian Silverman
Signature [seal]
State of New York )
)
County of New York )
On December 28, 1993, before me, Rodney F. Felder, Notary Public,
personally appeared W. Jeffrey Kramer personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the
instrument.
Witness my hand and official seal
/s/Rodney F. Felder
Signature [seal]
State of New York)
)
County of New York)
On December 28, 1993, before me, Barbara A. Wheeler, Notary
Public, personally appeared William J. Wade personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal
/s/ Barbara A. Wheeler
Signature [seal]