Exhibit 10.1

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of September 2, 2022 (“Effective Date”), by and between STORE CAPITAL ACQUISITIONS, LLC, a Delaware limited liability company (“Purchaser”), and ALTITUDE HOSPITALITY LLC, a Florida limited liability company (“Seller”). Except as otherwise expressly defined herein, capitalized terms will have the meanings set forth on Exhibit A attached hereto and incorporated herein by this reference. For and in consideration of the mutual covenants and promises hereinafter set forth, the parties hereby mutually covenant and agree as follows:

ARTICLE I

purchase of PROPERTY

Section 1.01. Agreement to Purchase. Purchaser agrees to purchase, and Seller agrees to sell, in accordance with the terms, conditions and stipulations set forth in this Agreement (the “Transaction”), all of Seller’s right, title and interest in and to (a) the parcel or parcels of real property, as more particularly described on Exhibit B attached hereto, and any and all improvements thereon and appurtenances thereto (collectively, the “Real Property”); (b) all fixtures affixed thereto; (c) all mineral, oil and gas rights, water rights, sewer rights and other utility rights allocated to the Real Property; and (d) all easements, licenses, privileges and other property interests belonging or appurtenant to the Real Property (all of the foregoing items in clauses (a) through (d) above, now or hereafter existing, collectively, the “Property”).

The parties acknowledge and agree that: (i) fee title to the Real Property is currently with Sandpiper Resort Properties, Inc. (“Current Owner”); (ii) Seller is under contract or will enter into contract to acquire the Property from the Current Owner pursuant to the Existing Purchase Agreement; (iii) the obligations of Seller under this Agreement may be satisfied by the Current Owner; and (iv) conditioned upon obtaining the written consent of the Current Owner (which Seller covenants to diligently pursue) unless otherwise mutually agreed by Seller and Purchaser, Seller shall designate or nominate Purchaser to take title to the Property pursuant to the terms of the Existing Purchase Agreement such that title to the Property shall be conveyed directly from Current Owner to Purchaser and the closing under the Existing Purchase Agreement and the Closing hereunder shall be simultaneous.

Section 1.02. Purchase Price. The purchase price to be paid by Purchaser to Seller for the Property is $55,000,000.00 (the “Purchase Price”). The Purchase Price shall be paid by Purchaser in immediately available federal funds at Closing.

Section 1.03. Lease of Property; Disbursement Agreement.

(a) Lease. On or before the Closing Date, Seller, as lessee, and Purchaser, as lessor, shall agree upon the Lease Agreement, pursuant to which Purchaser shall lease the Property to Seller, at the rent and pursuant to the terms and conditions contained therein (the “Lease”).

(b) Disbursement Agreement. On or before the Closing Date, Seller and Purchaser shall agree upon a Disbursement Agreement (the “Disbursement Agreement”), pursuant to which Purchaser shall fund up to $25,000,000.00 in construction costs to enable Seller, as lessee under the Lease, to construct and renovate improvements to the Property to be distributed in accordance with and subject to the terms and conditions contained in the Disbursement Agreement.

Section 1.04. Prorations. In view of the subsequent lease of the Property to Seller pursuant to the Lease and Seller’s obligations thereunder, there shall be no proration of insurance, taxes, special assessments, utilities or any other costs related to the Property between Seller and Purchaser at Closing. All real and personal property and other applicable taxes and assessments, utilities and any other charges relating to the Property which are due and payable on or prior to the Closing Date shall be paid by Seller at or prior to Closing, and all other taxes and assessments shall be paid by Seller in accordance with the terms of the Lease.

Section 1.05. Transaction Costs. Subject to Section 6.02(a) below, whether or not the Transaction closes, (a) Seller shall be responsible for the payment of all Transaction Costs incurred by Seller and Purchaser in connection with the Transaction; (b) Seller and Purchaser shall each be responsible for the payment of one-half (1/2) of the mortgage tax associated with Purchaser’s required mortgage to be filed at Closing; and (c) Seller and Purchaser shall each be responsible for the payment of the fees and expenses of their respective legal counsel, accountants and other professional advisers (“Professional Fees”).

The provisions of this Section shall survive Closing or termination of this Agreement for any reason.

ARTICLE II

DUE DILIGENCE

Section 2.01. Title Insurance.

(a) Title Commitment and Title Policy. Purchaser shall order an owner’s title insurance commitment (the “Title Commitment”) with respect to the Property issued by the Title Company, for an ALTA Owner’s Extended Coverage Title Insurance Policy, together with any endorsements, that Purchaser may require (the “Title Policy”). Purchaser shall cause a copy of the Title Commitment to be delivered to Seller. All costs related to the Title Policy, escrow fees and other closing costs shall be included in Transaction Costs, payable as set forth in Section 1.05.

(b) Title Company. The Title Company is hereby employed by the parties to act as escrow agent in connection with this Transaction. This Agreement shall be used as instructions to the Title Company, as escrow agent, which may provide its standard conditions of acceptance of escrow; provided, however, that in the event of any inconsistency between such standard conditions of acceptance and the terms of this Agreement, the terms of this Agreement shall prevail. The Title Company’s receipt of this Agreement and the opening of an escrow pursuant to this Agreement shall be deemed to constitute conclusive evidence of the Title Company’s agreement to be bound by the terms and conditions of this Agreement pertaining to the Title Company.

(c) Title Company Actions. The Title Company is authorized to pay, from any funds held by it for each party’s respective credit, all amounts necessary to procure the delivery of any documents and to pay, on behalf of Purchaser and Seller, all charges and obligations payable by them hereunder, respectively. Seller and Purchaser will pay all charges payable by them to the Title Company. The Title Company shall not cause the Transaction to close unless and until it has received written instructions from Purchaser and Seller to do so. The Title Company is authorized, in the event any conflicting demand is made upon it concerning these instructions or the escrow, at its election, to hold any documents and/or funds deposited hereunder until an action shall be brought in a court of competent jurisdiction to determine the rights of Seller and Purchaser or to interplead such documents and/or funds in an action brought in any such court. Deposit by the Title Company of such documents and funds, after deducting therefrom its reasonable charges, expenses and attorneys’ fees incurred in connection with any such court action, shall relieve the Title Company of all further liability and responsibility for such documents and funds.

(d) Title Objections.

(i) Within seven (7) days after the Purchaser’s receipt of both the Title Commitment and the Survey, Purchaser shall notify Seller in writing of Purchaser’s objection to any exceptions or other title matters shown on the Title Commitment or the Survey (each, a “Title Objection”). If any Title Objection is not removed or resolved by Seller to Purchaser’s satisfaction at least five (5) days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, upon written notice to Seller on or before the Closing Date, to terminate this Agreement, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination.

(ii) If any supplement to the Title Commitment or the Survey discloses any additional title defects which were not created by or with the consent of Purchaser, and which are not acceptable to Purchaser, Purchaser shall notify Seller in writing of its objection thereto (each, an “Additional Title Objection”) within five (5) days following receipt of such supplement or revision. If any Additional Title Objection is not removed or resolved by Seller to Purchaser’s satisfaction at least five (5) days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, to terminate this Agreement upon written notice to Seller on or before the Closing Date, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination.

(iii) Purchaser’s failure to timely deliver a Title Objection or an Additional Title Objection shall be deemed Purchaser’s acceptance of the matters disclosed by the Title Commitment and the Survey. If Purchaser does not terminate this Agreement by reason of any Title Objection or Additional Title Objection, as provided in this Section 2.01, then such Title Objection or Additional Title Objection shall be deemed waived and approved by Purchaser and shall thereafter be deemed a Permitted Encumbrance.

Section 2.02. Seller Documents. With reasonable promptness, but in no event later than three (3) Business Days following the Effective Date, Seller shall deliver to Purchaser the following items to the extent the same exist and are in Seller’s possession or under its control (collectively, the “Seller Documents”): (a) “as-built” plans and specifications for the Property; (b) a certificate of occupancy (or its jurisdictional equivalent) for the Property; (c) all surveys related to the Property; (d) all environmental reports related to the Property (including without limitation, Phase I and Phase II environmental investigation reports); (e) all appraisals or valuations related to the Property; (f) all guaranties and warranties in effect with respect to the Property; (g) full and complete copies of any existing leases and current rent rolls related thereto and all other agreements related to the Property, together with all amendments and modifications thereof, including the Submerged Land Lease; (h) financial statements of the Seller Entities and unit-level financial statements for the previous three years; (i) the Management Agreement; (j) all property condition reports related to the Property; and (k) all other documents related to the ownership, lease and operation of the Property, and reasonably requested by Purchaser.

Section 2.03. Survey. Seller has ordered a current ALTA/NSPS “as built” survey as for the Property (the “Survey”) and shall cause a copy to be delivered to Purchaser. Purchaser shall order evidence reasonably satisfactory to Purchaser that the Property fully complies with all zoning ordinances of the Governmental Authority having jurisdiction over the Property (“Zoning Evidence”). The Survey shall (i) show all improvements and shall plot all exceptions shown on the Title Commitment (to the extent plottable), (ii) provide evidence reasonably satisfactory to Purchaser that the Property is not within a 100-year flood plain or a “Special Flood Hazard Area” as designated by the Federal Emergency Management Agency, and (iii) be certified in favor of Purchaser, any requested Affiliate of Purchaser and Title Company in a manner reasonably acceptable to Purchaser and prepared in accordance with the appropriate “ALTA/NSPS” minimum standards. The cost of the Survey shall be included in Transaction Costs, payable as set forth in Section 1.05.

Section 2.04. Environmental. Seller has ordered a current complete Phase I environmental investigation report for the Property and shall cause a copy to be delivered to Purchaser (the Phase I environmental investigation report and any additional recommended subsurface investigation report, an “Environmental Report”). In the event that Seller fails or refuses to permit any such additional subsurface investigation or is unwilling to obtain environmental insurance providing coverage acceptable to Purchaser in its sole discretion, Seller shall be deemed to have elected to terminate this Agreement, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination. The cost of the Environmental Reports shall be included in Transaction Costs, payable as set forth in Section 1.05.

Section 2.05. Valuation. Purchaser shall order a current site inspection and valuation of the Property, separately stating values for the Real Property and improvements, from a party selected by Purchaser (the “Valuation”). The Valuation shall be in form and substance acceptable to Purchaser, and shall be certified to Purchaser and any requested Affiliate of Purchaser. The cost of the Valuation shall be included in Transaction Costs, payable as set forth in Section 1.05.

Section 2.06. Property Condition Report. Seller has ordered a current property condition assessment and limited compliance audit as required for the Property (the “Property Condition Report”) and shall cause a copy to be delivered to Purchaser. The Property Condition Report shall be in form and substance acceptable to Purchaser, and shall be certified to Purchaser and any requested Affiliate of Purchaser. The cost of the Property Condition Report shall be included in Transaction Costs, payable as set forth in Section 1.05.

Section 2.07. Inspections. From the Effective Date through Closing (the “Inspection Period”), (a) Purchaser may perform whatever investigations, tests and inspections (collectively, the “Inspections”) with respect to the Property that Purchaser deems reasonably appropriate; and (b) Seller shall, at all reasonable times, (i) provide Purchaser and Purchaser’s officers, employees, agents, advisors, attorneys, accountants, architects, and engineers with access to the Property, all drawings, plans, specifications and all engineering reports for and relating to the Property in the possession or under the control of Seller, and (ii) allow such Persons to make such inspections, tests, copies, and verifications as Purchaser considers necessary.

Section 2.08. Purchaser’s Right to Terminate. Notwithstanding any provision contained herein, in addition to its right to terminate this Agreement as set forth in Section 2.01(d), if (a) Purchaser determines, in its sole discretion, that the Property is not satisfactory, and Purchaser provides written notice thereof to Seller on or before expiration of the Inspection Period, or (b) Purchaser and Seller are unable to agree upon the terms and conditions of the Lease as provided in Section 1.03, or (c) Purchaser fails to obtain the approval of the Transaction from Purchaser’s Investment Committee, and in any such event, Purchaser provides written notice thereof to Seller on or before expiration of the Inspection Period, or (d) Purchaser fails to obtain the approval of any material change to the terms of the Transaction from Purchaser’s Investment Committee prior to Closing, then Purchaser shall have the option to terminate this Agreement, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination.

Section 2.09. As Is Condition of the Property. Purchaser acknowledges that Purchaser has substantial experience with real property and that purchaser will acquire the Property in “as is, where is, with all faults” condition, and solely in reliance on Purchaser’s own inspection and examination and Seller’s express representations and warranties contained herein. It is expressly understood and agreed that Seller and Seller’s representatives make no representations, warranties or guaranties of any kind, nature or sort, express or implied, with respect to the physical condition, past, present or future operation and/or performance, or value, of all or any part of the Property except as otherwise specifically set forth in this Agreement. Seller shall convey the Property to Purchaser “as is and where is, with all faults,” and Purchaser acknowledges that neither Seller nor any of Seller’s representatives makes or has made any representations, guaranties or warranties whatsoever, express or implied, as to the quality, character, extent, performance, condition or suitability of the Property for any purpose, except as otherwise specifically set forth in this Agreement. Purchaser also acknowledges and agrees that, although Seller or Seller’s representatives may have provided to Purchaser certain reports, studies and surveys for or regarding the real property (“Reports”), Seller and Seller’s representatives have not verified the accuracy thereof and make no representations or warranties regarding the matters set forth therein other than as expressly provided in this Agreement, it being the responsibility of Purchaser to verify the accuracy of such Reports. Purchaser hereby irrevocably releases and forever discharges Seller and all Seller’s representatives from any and all claims, losses, damages, liabilities or obligations arising out of or in any way related to the Reports, which release and discharge from liability shall survive Closing. Furthermore, Purchaser acknowledges that Seller and Seller’s representatives have not made and do not make any representations or warranties in connection with the presence, integration or non-integration of hazardous materials upon, beneath or within the Real Property except as otherwise set forth in this Agreement. The provisions of this Section 2.09 shall survive Closing; provided, however, in no event shall it limit the responsibilities, liabilities or obligations of Seller under the Lease.

ARTICLE III

CLOSING

Section 3.01. Closing Date. Subject to the provisions of Article V of this Agreement, the closing date of the Transaction contemplated by this Agreement (the “Closing”) shall be set by mutual agreement of Seller and Purchaser (the “Closing Date”); provided, however, that the Closing Date shall not extend beyond the Closing Deadline. The parties shall deposit with the Title Company all documents (including without limitation, the executed Transaction Documents) as necessary to comply with the parties’ respective obligations hereunder on or before the Closing Date or as otherwise mutually agreed upon by the parties. The parties shall deposit all funds required hereunder with the Title Company on or before the Closing Date.

Section 3.02. Funding. Notwithstanding any provision contained in this Agreement, funding of the Transaction by Purchaser shall be contingent upon the delivery of the executed Transaction Documents, satisfaction of the conditions precedent set forth herein and in the other Transaction Documents, and confirmation by Purchaser’s counsel that it or the Title Company has possession of all Transaction Documents required by Purchaser.

Section 3.03. Possession. Possession of the Property, free and clear of all tenants or other parties in possession, except in accordance with the Lease (and any permitted subleases thereunder) and the Submerged Land Lease, shall be delivered to Purchaser on the Closing Date.

ARTICLE IV

REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 4.01. Seller. Seller represents and warrants to, and covenants with, Purchaser as follows:

(a) Organization and Authority. Seller is duly organized or formed, validly existing and in good standing under the laws of its state of formation, and is qualified as a foreign entity to do business in any jurisdiction where such qualification is required. Seller has all requisite power and authority to own and operate the Property, to execute, deliver and perform its obligations under this Agreement and all of the other Transaction Documents to which it is a party, and to carry out the Transaction. The Person who has executed this Agreement on behalf of Seller has been duly authorized to do so.

(b) Enforceability of Documents. Upon execution by Seller, this Agreement and the other Transaction Documents to which it is a party, shall constitute the legal, valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws relating to or affecting the rights of creditors generally, or by general equitable principles.

(c) No Other Agreements and Options. None of the Seller Entities or the Property is subject to any commitment, obligation, or agreement, including, without limitation, any right of first refusal, option to purchase or lease granted to a third party, which could or would (i) prevent Seller from completing, or impair Seller’s ability to complete, the sale of the Property under this Agreement or the subsequent lease of the Property pursuant to the Lease, or (ii) bind Purchaser subsequent to consummation of the Transaction.

(d) No Violations. The authorization, execution, delivery and performance of this Agreement and the other Transaction Documents to which Seller is a party will not (i) violate any provisions of the charter documents of Seller, (ii) result in a violation of or a conflict with, or constitute a default (or an event which, with or without due notice or lapse of time, or both, would constitute a default) under any other document, instrument or agreement to which Seller is a party or by which Seller, to Seller’s knowledge, without any investigation, and except where otherwise disclosed in the Seller Documents, the Survey or the Title Commitment, the Property or any of the property of Seller are subject or bound, (iii) result in the creation or imposition of any Lien, restriction, charge or limitation of any kind, upon Seller or the Property other than as set forth in the Transaction Documents, or (iv) violate any law, statute, regulation, rule, ordinance, code, rule or order of any court or Governmental Authority applicable to Seller or, to Seller’s knowledge, without any investigation, and except where otherwise disclosed in the Seller Documents, the Survey or the Title Commitment, the Property.

(e) Compliance. To Seller’s knowledge, without any investigation, and except where otherwise disclosed in the Seller Documents, the Survey or the Title Commitment. Current Owner’s use and occupation of the Property, and the condition thereof, comply in material respects with (i) all applicable statutes, regulations, rules, ordinances, codes, licenses, permits, orders and approvals of each Governmental Authority having jurisdiction over the Property, including, without limitation, all health, building, fire, safety and other codes, ordinances and requirements, the Americans With Disabilities Act of 1990, in each case, as amended, and any judicial or administrative interpretation thereof, including any judicial order, consent, decree or judgment applicable to the Property (collectively, the “Legal Requirements”), and (ii) all restrictions, covenants and encumbrances of record with respect to the Property. Except where otherwise disclosed in the Seller Documents, the Survey or the Title Commitment, no Seller Entity has received any written notification that it or the Property is in violation of any of the foregoing, including without limitation, the Legal Requirements.

(f)   Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws. Without in any way limiting the provisions of Section 4.01(e), Seller, and to the best of Seller’s knowledge, each of the Seller Entities is not currently identified on the OFAC List, and is not a Person with whom a citizen of the United States is prohibited from engaging in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or executive order of the President of the United States. Seller makes no representation as to any shareholder of Altitude International Holdings, Inc.

(g) Litigation. There is no legal, administrative, arbitration or other proceeding, claim or action of any nature or investigation pending or involving or, to the best of Seller’s knowledge, threatened against, Seller, the Seller Entities or, to Seller’s knowledge, without any investigation, and except where otherwise disclosed in the Seller Documents, the Survey or the Title Commitment, the Property, before any Governmental Authority, except as has been disclosed in writing by Seller, which in any way adversely affects or may adversely affect the Property, the business performed and to be performed on the Property, the condition, worth or operations of any of the Seller Entities, or the ability of any of the Seller Entities to perform under this Agreement or any other Transaction Documents to which they are a party, or which questions or challenges any of the Seller’s Entities’ participation in the Transaction contemplated by this Agreement or any other Transaction Document.

(h) No Mechanics’ Liens. To Seller’s knowledge, without any investigation, and except where otherwise disclosed in the Seller Documents, the Survey or the Title Commitment, there are no outstanding accounts payable, mechanics’ liens, or rights to claim a mechanics’ lien in favor of any materialman, laborer, or any other Person in connection with labor or materials furnished to or performed on any portion of the Property, which will not have been fully paid for on or before the Closing Date or which might provide the basis for the filing of such liens against the Property or any portion thereof. To Seller’s knowledge, without any investigation, and except where otherwise disclosed in the Seller Documents, the Survey or the Title Commitment, no work has been performed or is in progress nor have materials been supplied to the Property or agreements entered into for work to be performed or materials to be supplied to the Property prior to the date hereof, which will not have been fully paid for on or before the Closing Date or which might provide the basis for the filing of such liens against the Property or any portion thereof. Seller shall be responsible for any and all claims for mechanics’ liens and accounts payable that have arisen or may subsequently arise due to agreements entered into by Seller for and/or any work performed on, or materials supplied to the Property prior and subsequent to the Closing Date, and Seller shall and does hereby agree to defend, indemnify and forever hold Purchaser and Purchaser’s designees harmless from and against any and all such mechanics’ lien claims, accounts payable or other commitments relating to the Property.

(i) Intentionally Omitted.

(j) Condemnation. To Seller’s knowledge, except where otherwise disclosed in the Seller Documents, the Survey or the Title Commitment, no condemnation or eminent domain proceedings affecting the Property have been commenced or are contemplated.

(k) Intentionally Omitted.

(l)   Intellectual Property. Following Closing and upon the expiration of the short term post – closing lease with Current Owner, Lessee will possess and have the right to use all intellectual property, licenses and other rights as are material and necessary for the conduct of business at the Property.

(m) Environmental.

(i) To Seller’s knowledge, without any duty of inquiry, except where otherwise disclosed in the Seller Documents, the Survey or the Title Commitment the Property is not in violation of any Hazardous Materials Laws and there is no past or present non-compliance with Hazardous Materials Laws, or with permits issued pursuant thereto, in connection with the Property.

(ii) No Seller Entity has received any written or oral notice or other communication from any Person (including but not limited to a Governmental Authority) relating to Hazardous Materials or USTs, or remediation thereof, of possible liability of any Person (including without limitation, Lessee) pursuant to any Hazardous Materials Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with any of the foregoing.

(n) Financial Statements. The financial statements concerning the Seller Entities delivered by or on behalf of Seller to Purchaser are true, correct and complete in all material respects, and no adverse change has occurred with respect to such financial statements, since the date such financial statements were prepared or delivered to Purchaser. Seller understands that Purchaser is relying upon such financial statements and Seller represents that such reliance is reasonable. All such financial statements were prepared in accordance with generally accepted accounting principles consistently applied and accurately reflect, as of the date of this Agreement and the Closing Date, the financial condition of each individual or entity to which they pertain.

(o) Solvency. There is no contemplated, pending or threatened Insolvency Event or similar proceedings, whether voluntary or involuntary, affecting the Seller Entities, or to Seller’s knowledge, any of their respective members, partners shareholders, or Affiliates. Seller makes no representation as to any shareholder of Altitude International Holdings, Inc.

(p) Satisfaction of Conditions Precedent. From the Effective Date through the Closing Date, Seller shall use its best efforts to satisfy all conditions set forth in Section 5.01 of this Agreement on or prior to the Closing Date.

(q) No Bankruptcy Petition. Seller hereby agrees that it shall not institute against, or join any other Person in instituting against, Purchaser, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or any other proceeding under any federal or state bankruptcy or similar law. The provisions of this Section shall survive the Closing or termination of this Agreement. Notwithstanding the foregoing, the provisions of this Section shall in no way limit any other rights Seller may have with respect to this Agreement, either at law or in equity.

(r) State Bulk Sales Statutes. Seller represents and warrants to Purchaser that no bulk sales statutes promulgated by any Governmental Authority (“Bulk Sales Statutes”) apply as a result of the sale of the Property. Seller agrees to indemnify, defend and hold Purchaser harmless from and against any and all losses, costs, damages, expenses (including without limitation, court costs and reasonable attorney’s fees) and liabilities which may be sustained or incurred by Purchaser, and/or any and all claims, demands, suits, proceedings and causes of action which may be brought or raised against Seller or Purchaser, as a result of or arising from (i) any claim that Purchaser has any liability or obligations under the Bulk Sales Statutes (including without limitation, any tax obligations or liabilities (or interest or penalties connected therewith) of Seller) by reason of the transactions provided for herein; or (ii) the failure of Purchaser to withhold any of Seller’s unpaid tax obligations, liabilities, interest or penalties thereon from the Purchase Price or otherwise as required under any Bulk Sales Statutes; provided, however, that Seller shall not be liable for and have no indemnification obligations to Purchaser hereunder for any taxes that are the obligation of Seller pursuant to the Lease.

(s) Franchisor Provisions. As of Closing, Seller shall have entered into a Franchise Agreement with Franchisor for the conduct of business at the Property, which Franchise Agreement shall not have been assigned, transferred, mortgaged, or otherwise encumbered, except that Feenix Venture Partners, in connection with a loan to Seller as Lessee under the Lease, may require a recognition agreement or similar agreement from Franchisor. The Franchise Agreement will be in full force and effect at Closing, will permit Lessee to operate the Facility on the Property and will have a term which will not expire prior to the term of the Lease (including all possible extensions thereof), unless otherwise agreed to by the Purchaser, as lessor under the Lease. No notice of default from Franchisor has been received by Seller with respect to the Franchise Agreement that has not been cured, and no notice of default to Franchisor has been given that has not been cured. To the best of Seller’s knowledge, no event has occurred and no condition exists, including with respect to any required remodeling or re-imaging, that, with the giving of notice or the lapse of time or both, would constitute a default under the Franchise Agreement.

(t) First Priority Lien. As of Closing, Seller, as lessee, shall grant Purchaser a first priority lien position upon all of the Personalty (as such term is defined in the Lease) owned by Lessee and located upon the Properties (the “FFE Lien”).

All representations and warranties of Seller made in this Agreement shall be true as of the date of this Agreement, shall be deemed to have been made again at and as of the Closing Date, shall be true at and as of the Closing Date, and shall survive Closing for a period of one (1) year. When used in this Agreement, the phrase “To Seller’s knowledge” or derivations thereof, shall mean the actual knowledge of Gregory Breunich, the Manager of Seller.

Section 4.02. Purchaser. Purchaser represents and warrants to, and covenants with, Seller as follows:

(a) Organization and Authority. Purchaser is duly organized, validly existing and in good standing under the laws of its state of formation. Purchaser has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and all of the other Transaction Documents to which it is a party and to carry out the Transaction. The Person who has executed this Agreement on behalf of Purchaser has been duly authorized to do so.

(b) Enforceability of Documents. Upon execution by Purchaser, this Agreement and the other Transaction Documents to which it is a party, shall constitute the legal, valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws relating to or affecting the rights of creditors generally, or by general equitable principles.

(c) Litigation. There are no actions or proceedings pending against or involving Purchaser before any Governmental Authority which in any way adversely affect or may adversely affect Purchaser or Purchaser’s ability to perform under this Agreement and the other Transaction Documents to which it is a party.

(d) Satisfaction of Conditions Precedent. From the Effective Date through the Closing Date, Purchaser agrees to use its best efforts to satisfy all conditions set forth in Section 5.02 of this Agreement on or prior to the Closing Date.

All representations and warranties of Purchaser made in this Agreement shall be true as of the date of this Agreement, shall be deemed to have been made again at and as of the Closing Date, shall be true at and as of the Closing Date, and, together with the covenants made by Purchaser herein, shall survive Closing for a period of one (1) year.

ARTICLE V

CONDITIONS PRECEDENT TO CLOSING

Section 5.01. Purchaser’s Conditions to Closing. Purchaser shall not be obligated to close and fund the Transaction until the fulfillment (or written waiver by Purchaser) of all of the following conditions:

(a) Seller, Guarantor and Limited Guarantor shall have delivered, or caused to be delivered, to the Title Company, as applicable, the following items:

(i) The Deed and the Submerged Land Lease Assignment;

(ii) Such documents evidencing the legal status and good standing of Seller that may be required by reasonably Purchaser and/or the Title Company for issuance of the Title Policy, including, without limitation, certificates of good standing;

(iii) Fully executed originals of (A) the Lease, together with a fully executed original of a memorandum thereof for the Property (the “Memorandum of Lease”), and (B) an Assignment of Warranties in the form of Exhibit D attached hereto, or if not assignable, evidence satisfactory to Purchaser that it will receive coverage or protection acceptable to Purchaser for the matters covered by such warranties, in either case, to the extent required by Purchaser (the “Assignment of Warranties”), and (C) all of the other Transaction Documents to which Seller, Guarantor or Limited Guaranty is a party;

(iv) Certificates evidencing the insurance coverage, limits and policies to be carried by Seller under and pursuant to the terms of the Lease, on the forms and containing the information required by Purchaser, as landlord (“Lease Proof of Insurance”);

(v) A certificate of an officer, manager or general partner, as applicable, of Seller and Guarantor, together with copies of each entity’s (A) articles of organization or certificate of formation, as applicable, amended to date; (B) operating agreement, bylaws or partnership agreement, as applicable, amended to date; (C) resolutions authorizing the Transaction and the execution of this Agreement and the other Transaction Documents, and identifying the Person(s) authorized to execute this Agreement and the other Transaction Documents; and (D) original certificates of good standing or similar documents from the states in which each entity was organized or formed, and original certificates of qualification or similar documents from the state where the Property is located;

(vi) A duly executed affidavit from Seller stating that Seller is not a “foreign person” as defined in the Federal Foreign Investment in Real Property Tax Act of 1980 and 1984 Tax Reform Act, in the form attached hereto as Exhibit C (“Non-Foreign Seller Certificate”);

(vii) An Opinion of Counsel, addressed to Purchaser and Purchaser’s financial institution, if any;

(viii) Closing settlement statements approved by Seller and Purchaser to reflect the credits, prorations, and adjustments contemplated by or specifically provided for in this Agreement;

(ix) To the extent not previously provided, the most recent financial statements available for the Seller Entities; and

(x) All documents required to be delivered by this Agreement and the other Transaction Documents to which Seller, Guarantor or Limited Guarantor are a party, and as may otherwise be required in order to fully and legally close this Transaction.

(b) Purchaser shall have received the Title Commitment and the Title Company’s irrevocable commitment to insure title by means of the Title Policy.

(c) Purchaser shall have determined, in its sole discretion, that there shall have been no material adverse change in the current or prospective financial condition of Seller, Guarantor, Limited Guarantor or the Property from the Effective Date.

(d) All representations and warranties of Seller set forth herein shall have been true and correct in all respects when made, and all covenants, agreements and conditions required to be performed or complied with by Seller prior to or at the time of Closing in connection with the Transaction shall have been duly performed or complied with by Seller prior to or at such time or waived in writing by Purchaser.

(e) No event shall have occurred or condition shall exist which would, upon the Closing Date, or, upon the giving of notice and/or passage of time, constitute a breach or default hereunder or under any other Transaction Document, or any other agreements between or among Purchaser, Seller, Guarantor, Limited Guarantor or Franchisor.

(f) Seller shall have caused all leases and, unless otherwise agreed to in writing by Purchaser, all subleases of the Property and any other documents affecting the Property existing at Closing, at Purchaser’s sole option, to be cancelled as of the Closing Date (except the Submerged Land Lease) or subordinated to the Lease pursuant to subordination agreements in form and substance satisfactory to Purchaser. Purchaser acknowledges that Current Owner shall have a sublease in effect through September 12, 2022 which shall be subordinate to the Lease.

(g) Purchaser shall have received a comfort letter from Franchisor in form and substance acceptable to Purchaser, which shall include the following: (i) the Franchise Agreement is valid, binding and in full force and effect, (ii) the Franchise Agreement has a term that will not expire before the term of the Lease (including all possible extensions thereof) (or that Seller has the right to renew the Franchise Agreement or enter into a new Franchise Agreement so that existing or new Franchise Agreement is in place for the Property throughout the term of the Lease (including all possible extensions thereof)), (iii) no events have occurred which could constitute a default under the Franchise Agreement, (iv) waives all rights of first refusal set forth in such Franchise Agreement as to Purchaser and its successors and assigns and the purchase option under the Lease, (v) providing Purchaser (or any new lessee of the Property) with the right to assume the obligations under the Franchise Agreement (the “Franchise Comfort Letter”).

(h) The transaction contemplated by the Existing Purchase Agreement shall have closed or shall close simultaneously with the Transaction contemplated herein.

Upon the fulfillment or Purchaser’s written waiver of all of the above conditions, Purchaser shall deposit funds necessary to close this Transaction with the Title Company and this Transaction shall close in accordance with the terms and conditions of this Agreement. Unless otherwise agreed, all of the documents to be delivered at Closing shall be dated as of the Closing Date.

Section 5.02. Seller’s Conditions Precedent to Closing. Seller shall not be obligated to close the Transaction until the fulfillment (or written waiver by Seller) of all of the following conditions:

(a) Purchaser shall have delivered to the Title Company the Purchase Price, as adjusted pursuant to the requirements of this Agreement;

(b) Purchaser shall have caused to be executed and delivered to the appropriate Persons fully executed originals of all Transaction Documents, including without limitation, the Lease, together with the Memorandum of Lease and the Assignment of Warranties;

(c) Purchaser and Seller shall have approved the Title Company settlement statements that reflect the credits, prorations, and adjustments contemplated by or specifically provided for in this Agreement;

(d) Purchaser shall have delivered to Seller and/or the Title Company such other documents as may reasonably be required in order to fully and legally close this Transaction; and

(e) All covenants, agreements and conditions required to be performed or complied with by Purchaser prior to or at the time of Closing in connection with the Transaction shall have been duly performed or complied with by Purchaser or waived in writing by Seller prior to or at such time.

(f) The transaction contemplated by the Existing Purchase Agreement shall have closed or shall close simultaneously with the Transaction contemplated herein.

(g) All representations and warranties of Purchaser set forth herein shall have been true and correct in all respects when made, and all covenants, agreements and conditions required to be performed or complied with by Purchaser prior to or at the time of Closing in connection with the Transaction shall have been duly performed or complied with by Purchaser prior to or at such time or waived in writing by Seller.

ARTICLE VI

DEFAULTS; REMEDIES

Section 6.01. Default. Each of the following shall be deemed an event of default (each, an “Event of Default”):

(a) If any representation or warranty of Seller or Purchaser set forth in this Agreement or any other Transaction Document is false in any material respect or if Seller renders any false statement;

(b) If Seller or Purchaser fails to perform any of its obligations under this Agreement; or

(c) If any Insolvency Event shall occur with respect to any Seller Entity or Purchaser.

Section 6.02. Remedies. Upon any Event of Default, the non-defaulting party shall be entitled to exercise, at its option and as its sole and exclusive remedy, one of the following remedies:

(a) The non-defaulting party may terminate this Agreement by giving written notice to the defaulting party and recover from the defaulting party, to the extent not already paid to the non-defaulting party, all reasonable and verified out-of-pocket costs and expenses incurred by the non-defaulting party hereunder (including without limitation, the Transaction Costs, any other due diligence costs, and the reasonable and verified fees and costs of legal counsel or other advisors), in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination; or

(b) The non-defaulting party may waive the Event of Default and proceed with the Closing.

ARTICLE VII 

POST-CLOSING

Section 7.01. Submerged Land Lease. Within ten (10) Business Days of the Closing Date, Seller shall deliver to Purchaser the forms to be submitted to the Florida Department of Environmental Protection for the transfer of the Submerged Land Lease (BOT File No. 560000758). Within five (5) Business Days following Seller’s receipt of the completed forms from Purchaser, Seller shall initiate the application to the Florida Department of Environmental Protection for the transfer of the Submerged Land Lease (BOT File No. 560000758) to Purchaser. Seller and Purchaser acknowledge that they must submit a copy of the recorded Deed, a completed Billing Information Form and a completed Financial Affidavit (such forms being promulgated by the FDEP) together with any fees. Purchaser shall cooperate with Seller in preparing and submitting the application and Seller shall provide Purchaser with a copy of the application and related documents. The Lease will contain appropriate provisions allowing the Lessee to use the property covered by the Submerged Land Lease. This Section 7.01 shall survive Closing.

ARTICLE VIII

MISCELLANEOUS

Section 8.01. Intentionally Omitted.

Section 8.02. Risk of Loss.

(a) Condemnation. If, prior to Closing, action is initiated to take the Property, or any portion thereof that Purchaser reasonably determines (a) that would materially interfere with the operation or use of the Property, (b) remove any principal access way to the Property, (c) reduce the availability of parking at the Property, (d) result in any part of the Property becoming in violation of any zoning or building code, or (e) the taking of more than ten percent (10%) of the Property, by eminent domain proceedings or by deed in lieu thereof, Purchaser may elect at or prior to Closing, to (i) terminate this Agreement, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination, or (ii) proceed to close, in which event all of Seller’s assignable right, title and interest in and to the award of the condemning authority shall be assigned to Purchaser at the Closing and there shall be no reduction in the Purchase Price.

(b) Casualty. Seller assumes all risks and liability for damage to or injury occurring to the Property by fire, storm, accident, or any other casualty or cause until the Closing has been consummated. If the Property, or any part thereof, suffers any damage prior to the Closing from fire or other casualty and the estimated cost of repair is reasonably estimated to exceed the sum of $250,000, Purchaser may elect at or prior to Closing, to (i) terminate this Agreement, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination, or (ii) consummate the Closing, in which event all of Seller’s right, title and interest in and to the proceeds of any insurance covering such damage (less an amount equal to any expense and costs reasonably incurred by Seller to repair or restore the Property, which shall be payable to Seller upon Seller’s delivery to Purchaser of satisfactory evidence thereof), to the extent that the amount of such insurance does not exceed the Purchase Price, shall be assigned to Purchaser at Closing, and Purchaser shall be entitled to a credit in the amount of Seller’s deductible at Closing.

Section 8.03. Notices. All notices, demands, designations, certificates, requests, offers, consents, approvals, appointments and other instruments given pursuant to this Agreement (collectively called “Notices”) shall be in writing and given by (a) hand delivery, (b) express overnight delivery service, or (c) email transmission, and shall be deemed to have been delivered upon (i) receipt, if hand delivered, (ii) the next Business Day, if delivered by a reputable express overnight delivery service, (iii) or the date of delivery of email if transmitted by 6:00 p.m. recipient’s time on a Business Day. Notices shall be provided to the parties and addresses (or email addresses, as applicable) specified below:

or to such other address or such other Person as either party may from time to time hereafter specify to the other party in a notice delivered in the manner provided above. Whenever in this Agreement the giving of Notice is required, the giving thereof may be waived in writing at any time by the Person or Persons entitled to receive such Notice.

A copy of any Notice delivered pursuant to this Section shall also contemporaneously be delivered in the manner herein specified to any mortgagee or assignee of Purchaser’s interest which shall have duly notified Seller in writing of its name and address.

Section 8.04. Assignment. Purchaser may assign its rights under this Agreement in whole or in part at any time to an Affiliate of Purchaser. Upon any unconditional assignment of Purchaser’s entire right and interest hereunder to an Affiliate of Purchaser, Purchaser shall automatically be relieved, from and after the date of such assignment, of liability for the performance of any obligation of Purchaser contained herein.

Section 8.05. Indemnity.

(a) Seller shall indemnify, defend and hold harmless Purchaser and its Affiliates, and their respective officers, directors, shareholders, managers, members, employees, representatives, successors and assigns, as applicable (collectively, the “Indemnified Parties”), from and against any and all Losses of any nature arising from or connected with breach of any of the representations, warranties, covenants, agreements or obligations of Seller set forth in this Agreement. The obligations under this Section 8.05(a) shall survive Closing for a period of one (1) year.

(b) Purchaser shall indemnify, defend and hold harmless Seller from and against any and all Losses of any nature arising from or connected with (i) breach of any of the representations, warranties, covenants, agreements or obligations of Purchaser set forth in this Agreement, and (ii) the Inspections. The obligations under this Section 8.05(b) shall survive Closing for a period of one (1) year.

Section 8.06. Brokerage Commission. Each of the parties represents and warrants to the other that neither party has dealt with, negotiated through or communicated with any broker in connection with this Transaction, except for ZEL Capital Partners whose commission shall be paid by Seller pursuant to a separate agreement between Seller and such broker. Each party shall indemnify, defend and hold harmless the other party from and against any and all claims, loss, costs and expenses, including reasonable attorneys’ fees, resulting from any claims that may be made against the indemnified party by any broker claiming a commission or fee by, through or under such indemnifying party. The parties’ respective obligations under this Section 8.06 shall survive Closing or termination of this Agreement.

Section 8.07. Reporting Requirements. The parties agree to comply with any and all reporting requirements applicable to the Transaction which are set forth in any law, statute, ordinance, rule, regulation, order or determination of any Governmental Authority, and further agree upon request, to furnish the other party with evidence of such compliance.

Section 8.08. Disclosures. Except as expressly set forth in Sections 7.01 and 8.07 and this Section 8.08, or as reasonably expected to be made public by the nature of the Transaction Document (such as recording of the Deed) and as required by law or judicial action or as required by any Governmental Authority in connection with any permit or license which Seller applies for in connection with its business operation on the Property as Lessee, prior to Closing neither Seller nor Purchaser will make any public disclosure of this Agreement or the other Transaction Documents, the Transaction or the provisions of the Transaction Documents without the prior consent of the other party hereto. The parties further agree that, notwithstanding any provision contained in this Agreement, any party (and each employee, representative or other agent of any party) may disclose to any and all Persons, without limitation of any kind, any matter required under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended.

Section 8.09. Time is of the Essence. The parties hereto expressly agree that time is of the essence with respect to this Agreement.

Section 8.10. Non-Business Days. If the Closing Date or the date for delivery of a notice or performance of some other obligation of a party falls on a Saturday, Sunday or legal holiday in the state in which the Property is located, then the Closing Date or such notice or performance shall be postponed until the next Business Day.

Section 8.11. Waiver and Amendment. No provision of this Agreement shall be deemed waived or amended except by a written instrument unambiguously setting forth the matter waived or amended and signed by the party against which enforcement of such waiver or amendment is sought. Waiver of any matter shall not be deemed a waiver of the same or any other matter on any future occasion.

Section 8.12. Limitation on Liability. Notwithstanding anything to the contrary provided in this Agreement, it is specifically understood and agreed, such agreement being a primary consideration for the execution of this Agreement and the Lease, that (a) there shall be absolutely no personal liability on the part of any director, officer, manager, member, employee or agent of either party with respect to any of the representations, warranties, terms, covenants and conditions of this Agreement, (b) each party waives all claims, demands and causes of action against the other party’s directors, officers, managers, members, employees and agents in the event of any breach by such other party of any of the terms, covenants and conditions of this Agreement, and (c) each party shall look solely to the assets of the other party for the satisfaction of each and every remedy in the event of any breach of any of the terms, covenants and conditions of this Agreement, such exculpation of liability to be absolute and without any exception whatsoever.

Section 8.13. Headings; Internal References. The headings of the various sections and exhibits of this Agreement have been inserted for reference only and shall not to any extent have the effect of modifying the express terms and provisions of this Agreement. Unless stated to the contrary, any references to any section, subsection, exhibit and the like contained herein are to the respective section, subsection, exhibit and the like of this Agreement.

Section 8.14. Construction Generally. This is an agreement between parties who are experienced in sophisticated and complex matters similar to the Transaction and the other Transaction Documents, is entered into by both parties in reliance upon the economic and legal bargains contained herein and therein, and shall be interpreted and construed in a fair and impartial manner without regard to such factors as the party which prepared the instrument, the relative bargaining powers of the parties or the domicile of any party. Seller and Purchaser were each represented by legal counsel competent in advising them of their obligations and liabilities hereunder.

Section 8.15. Further Assurances. Each of the parties agrees, whenever and as often as reasonably requested so to do by the other party or the Title Company, to execute, acknowledge, and deliver, or cause to be executed, acknowledged, or delivered, any and all such further conveyances, assignments, confirmations, satisfactions, releases, instruments, or other documents as may be necessary, expedient or proper, in order to complete any and all conveyances, transfers, sales and assignments herein provided and to do any and all other acts and to execute, acknowledge and deliver any and all documents as so requested in order to carry out the intent and purpose of this Agreement.

Section 8.16. Intentionally Omitted.

Section 8.17. Attorneys’ Fees. In the event of any controversy, claim, dispute or proceeding between the parties concerning this Agreement, the prevailing party shall be entitled to recover all of its reasonable attorneys’ fees and other costs in addition to any other relief to which it may be entitled.

Section 8.18. Entire Agreement. This Agreement and all other Transaction Documents, and all other certificates, instruments or agreements to be delivered hereunder and thereunder constitute the entire agreement between the parties with respect to the subject matter hereof, and there are no other representations, warranties or agreements, written or oral, between Seller and Purchaser with respect to the subject matter of this Agreement. Notwithstanding anything in this Agreement to the contrary, upon the execution and delivery of this Agreement by Seller and Purchaser, (a) this Agreement shall supersede any previous discussions, letters of intent, agreements and/or term or commitment letters relating to the Transaction, including without limitation, the Letter of Intent and any and all agreements related to confidentiality, exclusivity, non-competition, non-solicitation of employees, non-solicitation or pursuit of any business opportunity represented by the Transaction, or any other term or condition which restricts any business activity of Purchaser or its affiliates, (b) the terms and conditions of this Agreement shall control notwithstanding that such terms are inconsistent with or vary from those set forth in any of the foregoing agreements, and (c) this Agreement may only be amended by a written agreement executed by Purchaser and Seller. The provisions of this Section shall survive the Closing.

Section 8.19. Forum Selection; Jurisdiction; Venue. For purposes of any action or proceeding arising out of this Agreement, the parties hereto expressly submit to the jurisdiction of all federal and state courts located in the St. Lucie County, State of Florida. Seller consents that it may be served with any process or paper by personal service within or without the State of Florida in accordance with applicable law. Furthermore, Seller waives and agrees not to assert in any such action, suit or proceeding that it is not personally subject to the jurisdiction of such courts, that the action, suit or proceeding is brought in an inconvenient forum or that venue of the action, suit or proceeding is improper.

Section 8.20. Separability; Binding Effect; Governing Law. Each provision hereof shall be separate and independent. Each provision hereof shall be valid and shall be enforceable to the extent not prohibited by law. If any provision hereof or the application thereof to any Person or circumstance shall to any extent be invalid or unenforceable, the remaining provisions hereof, or the application of such provision to Persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby. Subject to the provisions of Section 8.04, all provisions contained in this Agreement shall be binding upon, inure to the benefit of and be enforceable by the successors and assigns of each party hereto, including, without limitation, any United States trustee, any debtor-in-possession or any trustee appointed from a private panel, in each case to the same extent as if each successor and assign were named as a party hereto. This Agreement shall be governed by, and construed with, the laws of the state in which the Property is located, without giving effect to any state’s conflict of laws principles.

Section 8.21. Survival. Except for the conditions of Closing set forth in Article V, which shall be satisfied or waived in writing as of the Closing Date, all representations, warranties, indemnities of Seller and Purchaser set forth in this Agreement shall survive the Closing for a period of one (1) year.

Section 8.22. Waiver of Jury Trial and Certain Damages. THE PARTIES HERETO SHALL AND THEY HEREBY DO INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND/OR ANY CLAIM OR INJURY OR DAMAGE RELATED THERETO. EACH PARTY FURTHER WAIVES THE RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER PARTY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO.

Section 8.23. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. Furthermore, the undersigned agree that transmission of a fully executed copy of this Agreement via e-mail in a “.pdf” or other electronic format shall be deemed transmission of the original Agreement for all purposes.

Section 8.24. IRC Section 1031 Exchange of Property. The parties agree that a party may elect to complete an Internal Revenue Code 1031 tax-deferred exchange that will not affect the terms and conditions of this Agreement; provided, however, that (a) the non-requesting party will cooperate with the requesting party to complete such exchange in a timely manner on the conditions that the non-requesting party shall not be obligated to pay, suffer or incur any additional expenses or liabilities as a result of cooperating in the requesting party’s exchange and the non-requesting party shall not be obligated to acquire any other real property in connection with such exchange; (b) the non-requesting party shall not have any liability to the requesting party for failure of the exchange to qualify under the Internal Revenue Code and Treasury Regulations; (c) any assignment(s) made by the requesting party in connection with such exchange shall not relieve the requesting party of its obligations under this Agreement; (d) the requesting party shall cause all documentation necessary or appropriate in connection with such exchange to be prepared and available for execution no later than the Closing Date; and (e) the completion of one or more tax-deferred exchanges is not a condition to the performance by the requesting party of its obligations set forth in this Agreement.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first set forth above.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first set forth above.

Exhibits:

EXHIBIT A

DEFINED TERMS

The following terms shall have the following meanings for all purposes of this Agreement:

“Additional Title Objection” has the meaning set forth in Section 2.01(d)(ii).

“Affiliate” or any derivation thereof, means any Person which directly or indirectly controls, is under common control with, or is controlled by any other Person. For purposes of this definition, “controls”, “under common control with” and “controlled by” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or otherwise.

“Assignment of Warranties” has the meaning set forth in Section 5.01(a)(iii).

“Bulk Sales Statutes” has the meaning set forth in Section 4.01(q).

“Business Day” means Monday through Friday, except a day on which banks located in Port St. Lucie, Florida, are closed for business.

“Closing” shall have the meaning set forth in Section 3.01.

“Closing Date” shall have the meaning set forth in Section 3.01.

“Closing Deadline” means August 31, 2022 or any other date mutually agreed upon by Seller and Purchaser.

“Collateral Assignment of Management Agreement” means a written agreement whereby Seller collateral assigns the Management Agreement to Purchaser to secure the obligations of Seller under the Lease.

“Current Owner” has the meaning set forth in Section 1.01.

“Deed” means that certain general warranty deed whereby Current Owner or Seller conveys to Purchaser all of Seller’s right, title and interest in and to the Property, free and clear of all Liens, restrictions, encroachments and easements, except the Permitted Encumbrances.

“Disbursement Agreement” has the meaning set forth in Section 1.03(b).

“Effective Date” has the meaning set forth in the introductory paragraph of this Agreement.

“Environmental Liens” means all liens and other encumbrances imposed pursuant to any Hazardous Materials Law.

“Environmental Report” has the meaning set forth in Section 2.04.

“Event of Default” has the meaning set forth in Section 6.01.

“Existing Purchase Agreement” means that certain Purchase and Sale Agreement dated April 25, 2022 entered into among Seller, as purchaser and successor-by-assignment from Altitude International Holdings, Inc., and Current Owner, as seller, as the same may be amended or supplemented from time to time.

“FFE Lien” has the meaning set forth in Section 4.01(u).

“Franchise Agreement” means that certain TMH Worldwide Membership Agreement between Franchisor and Seller.

“Franchise Comfort Letter” has the meaning set forth in Section 5.01(g).

“Franchisor” means TMH Worldwide, LLC, a Delaware limited liability company, or its successor.

“Guarantor” means Altitude International Holdings, Inc., a New York corporation.

“Guaranty” means an unconditional guaranty of payment and performance in form and substance acceptable to Purchaser and Guarantor.

“Governmental Authority” means the United States of America, any state or other political subdivision thereof, any other entity exercising executive, judicial, regulatory or administrative functions of or pertaining to government and any corporation or other entity owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing.

“Hazardous Materials” includes: (a) oil, petroleum products, flammable substances, explosives, radioactive materials, hazardous wastes or substances, toxic wastes or substances or any other materials, contaminants or pollutants, the presence of which causes the Property to be in violation of any local, state or federal law or regulation, (including without limitation, any Hazardous Materials Law), or are defined as or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”, “toxic substances”, “contaminants”, “pollutants”, or words of similar import under any applicable local, state or federal law or under the regulations adopted, orders issued, or publications promulgated pursuant thereto, including, but not limited to: (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq.; (ii) the Hazardous Materials Transportation Act, as amended, 49 U.S.C. §1801, et seq.; (iii) the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901, et seq.; and (iv) regulations adopted and publications promulgated pursuant to the aforesaid laws; (b) asbestos in any form which is friable, urea formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of fifty (50) parts per million; (c) per- and poly-fluoroalkyl substances; (d) underground storage tanks; and (e) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority.

“Hazardous Materials Laws” includes any and all federal, state and local laws, rules, regulations, statutes, and requirements pertaining or relating to the environmental condition of the Property or to Hazardous Materials.

“Indemnified Parties” has the meaning set forth in Section 8.05.

“Insolvency Event” means (a) a Person’s (i) failure to generally pay its debts as such debts become due; (ii) admitting in writing its inability to pay its debts generally; or (iii) making a general assignment for the benefit of creditors; (b) any proceeding being instituted by or against any Person (i) seeking to adjudicate it a bankrupt or insolvent; (ii) seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency, or reorganization or relief of debtors; or (iii) seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property, and in the case of any such proceeding instituted against any such Person, either such proceeding shall remain undismissed for a period of 120 days or any of the actions sought in such proceeding shall occur; or (c) any Person taking any corporate or other formal action to authorize any of the actions set forth above in this definition.

“Inspection Period” has the meaning set forth in Section 2.07.

“Inspections” has the meaning set forth in Section 2.07.

“Lease” has the meaning set forth in Section 1.03(a).

“Lease Proof of Insurance” has the meaning set forth in Section 5.01(a)(iv).

“Legal Requirements” has the meaning set forth in Section 4.01(e).

“Letter of Intent” means that certain Letter of Intent dated July 18, 2022 between STORE Capital Corporation, on behalf of Purchaser, and Seller with respect to the Transaction, and any amendments or supplements thereto.

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction).

“Limited Guarantor” means Greg Breunich.

“Limited Guaranty” means an limit guaranty of payment and performance in form and substance acceptable to Purchaser and Limited Guarantor.

“Losses” means any and all claims, lawsuits, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, interest, charges, fees, expenses, judgments, decrees, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ fees, court costs and costs incurred in the investigation, defense and settlement of claims).

“Management Agreement” means that certain Hotel Management Agreement dated August 6, 2022 among Altitude International Holdings, Inc., Seller and Our Town Hospitality LLC (d/b/a OTH Hotels Resorts).

“Memorandum of Lease” has the meaning set forth in Section 5.01(a)(iii).

“Non-Foreign Seller Certificate” has the meaning set forth in Section 5.01(a)(vi).

“Notices” has the meaning set forth in Section 8.03.

“OFAC List” means the list of specially designated nationals and blocked Persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control and any other similar list maintained by the U.S. Treasury Department, Office of Foreign Assets Control pursuant to any Legal Requirements, including, without limitation, trade embargo, economic sanctions, or other prohibitions imposed by Executive Order of the President of the United States. The OFAC List currently is accessible through the internet website https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists.

“Opinion of Counsel” means an opinion by legal counsel to the Seller Entities regarding due authority and execution and the enforceability of the Transaction Documents to which any Seller Entities are a party, in form and substance and with such qualifications as are acceptable to Purchaser’s counsel.

“Permitted Encumbrances” means (a) the lien of any real estate taxes, water and sewer charges, not yet due and payable; (b) those recorded easements, restrictions, liens and encumbrances set forth as exceptions in the Title Commitment and in the Title Policy to be issued by Title Company to Purchaser and approved by Purchaser in its sole discretion in connection with this Agreement; and (c) the Lease.

“Person” means any natural person, firm, corporation, partnership, limited liability company, other entity, state, political subdivision of any state, the United States of America, any agency or instrumentality of the United States of America, any other public body or other organization or association.

“Professional Fees” has the meaning set forth in Section 1.05.

“Property” has the meaning set forth in Section 1.01.

“Property Condition Report” has the meaning set forth in Section 2.06.

“Purchase Price” means the amount specified in Section 1.02.

“Real Property” has the meaning set forth in Section 1.01.

“Seller Documents” has the meaning set forth in Section 2.02.

“Seller Entity” or “Seller Entities” means individually or collectively, as the context may require, Seller, Guarantor and Limited Guarantor and any Affiliate of Seller and Guarantor.

“Submerged Land Lease” means that certain Sovereignty Submerged Lands Lease Renewal and Modification Increase Square Footage File No. 560000758 issued by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida to Current Owner and Holiday Village of Sandpiper, Inc.

“Submerged Land Lease Assignment” means a written assignment agreement from Current Owner and Holiday Village of Sandpiper, Inc. to Purchaser conveying whatever right, title or interest they have to Purchaser, as the owner of the Property, of the leasehold rights and interests under the Submerged Land Lease.

“Survey” has the meaning set forth in Section 2.03.

“Title Commitment” has the meaning set forth in Section 2.01(a).

“Title Company” means First American Title Insurance Company located at 2425 E. Camelback Road, Suite 300, Phoenix, Arizona 85016, Attention: Kristin Brown, National Commercial Services, or an alternative title insurance company selected by Purchaser.

“Title Objection” has the meaning set forth in Section 2.01(d)(i).

“Title Policy” has the meaning set forth in Section 2.01(a).

“Transaction” has the meaning set forth in Section 1.01.

“Transaction Costs” means all out-of-pocket costs and expenses incurred in connection with the Transaction, including but not limited to (a) the procurement, or if the same is provided by Seller, the update of, the Property Condition Report, Environmental Report, Survey, Title Commitment, Title Policy, any title policy required by Purchaser’s lender, and all endorsements required by Purchaser and its lender, (b) the Valuation, (c) any mortgagee’s title insurance policies required by Purchaser’s lender, (d) all taxes (including stamp taxes and transfer taxes), escrow, closing, transfer and recording fees. Transaction Costs expressly exclude Professional Fees.

“Transaction Documents” means this Agreement, the Lease, the Guaranty, the Limited Guaranty, the Memorandum of Lease, the Deed, the Submerged Land Lease Assignment, the Collateral Assignment of Management Agreement, the Lease Proof of Insurance, the Disbursement Agreement, the Opinion of Counsel, the Non-Foreign Seller Certificate, the Assignment of Warranties, the UCC-1 Financing Statements, the Franchise Comfort Letter, any and all documents referenced herein and therein, and such other documents, payments, instruments and certificates as are reasonably required by Purchaser and/or the Title Company.

“UCC-1 Financing Statements” means such UCC-1 Financing Statements as Purchaser shall require with respect to the Transaction.

“UST Regulations” means 40 C.F.R. § 298 Subpart H – Financial Responsibility, or any equivalent state law, with respect to petroleum underground storage tanks (as such term is defined under 40 C.F.R. § 290.12 or any equivalent state law).

“USTs” means any one or combination of tanks and associated product piping systems used in connection with storage, dispensing and general use of Hazardous Materials.

“Valuation” has the meaning set forth in Section 2.05.

“Zoning Evidence” has the meaning set forth in Section 2.03.

EXHIBIT B

PROPERTY ADDRESS / LEGAL DESCRIPTION

Street Address: 4500 SE Pine Valley Street, Port St. Lucie, Florida 34952

Legal Description: To be provided by Seller or Title Company.

_______________, being first duly sworn deposes and states under penalty of perjury:

This affidavit is given to _______________________, a _______________, the transferee of the Property described in paragraph 1 above, for the purpose of establishing and documenting the non-foreign affidavit exemption to the withholding requirement of Section 1445 of the Code. The transferor understands that this affidavit may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.

______________________________, a

_______________

Subscribed and sworn to before me this _____ day of _____________________, 20__.

Notary Public: __________________________

(SEAL)

My Commission Expires: _________________

Schedule I
to Non-foreign Seller Certificate

PROPERTY

EXHIBIT D

ASSIGNMENT OF WARRANTIES

THIS ASSIGNMENT OF WARRANTIES (this “Assignment”), is made as of _______________________, 20__, by and between _____________________________, a ____________________________ (“Assignor”) and _____________________________, a ____________________________ (“Assignee”).

W I T N E S S E T H:

WHEREAS, pursuant to the terms of that certain Purchase and Sale Agreement, dated as of ________, 20__, by and between Assignor and Assignee (the “Purchase Agreement”), Assignor agreed to sell to Assignee, inter alia, certain real property, the improvements located thereon and certain rights appurtenant thereto, all as more particularly described in the Purchase Agreement (collectively, the “Property”). Initially capitalized terms not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement; and

WHEREAS, the Purchase Agreement provides, inter alia, that Assignor shall assign to Assignee rights to all guaranties and warranties relating to the Property and that Assignor and Assignee shall enter into this Assignment.

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto hereby agree as follows:

1. Assignment of Warranties. Assignor hereby assigns, sets over and transfers to Assignee, without recourse or representation, all of Assignor’s right, title and interest in, to and under any and all guaranties and warranties, if any, in effect with respect to all or any portion of the Property as of the date hereof, if any and if and only to the extent the same may be assigned or quitclaimed by Assignor without expense to Assignor. Assignee hereby accepts the foregoing assignment of guaranties and warranties. Notwithstanding this Assignment, if Assignor, as Lessee under the Lease as described in the Purchase Agreement, seeks to enforce a warranty for any element of the Property under the Lease in order to meet Lessee’s obligations to maintain such Property, then Assignee will cooperate with Assignor in enforcing such warranty.

2. Miscellaneous. This Assignment and the obligations of the parties hereunder shall survive the closing of the transaction referred to in the Purchase Agreement and shall not be merged therein, shall be binding upon and inure to the benefit of the parties hereto, their respective legal representatives, successors and assigns and may not be modified or amended in any manner other than by a written agreement signed by the party to be charged therewith.

3. Severability. If any term or provision of this Assignment or the application thereof to any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Assignment or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Assignment shall be valid and enforced to the fullest extent permitted by law.

4. Counterparts. This Assignment may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same agreement.

IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the date first set forth hereinabove.

Exhibit 10.2

DISBURSEMENT AGREEMENT

THIS DISBURSEMENT AGREEMENT (this “Agreement”), is made as of September 2, 2022 (the “Effective Date”), by and between STORE CAPITAL ACQUISITIONS, LLC, a Delaware limited liability company (“STORE”), whose address is 8377 E. Hartford Drive, Suite 100, Scottsdale, Arizona 85255, and ALTITUDE HOSPITALITY LLC, a Florida limited liability company (“Lessee”), whose address is 4500 SE Pine Valley Street, Port St. Lucie, Florida 34952.

Except as otherwise expressly defined herein, capitalized terms will have the meanings set forth on Exhibit A attached hereto and incorporated herein by this reference.

For and in consideration of the mutual covenants and promises hereinafter set forth, the parties hereby mutually covenant and agree as follows:

ARTICLE I

BASIC TERMS

Section 1.01 Construction Funds. $25,000,000, as set forth in Section 2.01.

Section 1.02 Commencement Date. December 1, 2022, as set forth in Section 2.02.

Section 1.03 Completion Date. On or about December 1, 2025, as set forth in Section 2.02.

Section 1.04 Number of Disbursements. No more than one (1) per calendar month, as set forth in Section 3.05.

Section 1.05 Minimum Draw Amount. $250,000, as set forth in Section 3.05.

Section 1.06 Estimated Last Date of Disbursement. On or about February 1, 2026.

Section 1.07 Capitalization Rate. The greater of (i) 8% or (ii) the sum of 5.23% plus the 15-year Swap Rate in effect four (4) Business Days prior to the date of the applicable Disbursement, as set forth in Section 3.02(c)(x).

ARTICLE II

CONSTRUCTION OF IMPROVEMENTS

Section 2.01 Lease Agreement. In connection in with that certain Lease Agreement of even date herewith by and between STORE Capital Acquisitions, LLC, a Delaware limited liability company (as “Lessor”), and Lessee (the “Lease”), (a) STORE has agreed to provide up to a maximum of $25,000,000 (the “Construction Funds”) to Lessee for completion of the property improvement plan construction and remodel work required by Franchisor under the Franchise Agreement at the Premises, and (b) Lessee has agreed to construct the Improvements with the Construction Funds, on the conditions and subject to the limitations set forth in this Agreement.

Section 2.02 General Duties. Lessee shall be solely responsible for the development, design and construction of the Improvements. Lessee shall construct the Improvements in a good and workmanlike manner and substantially in accordance with the Contract Documents, free and clear of all mechanics’ liens, materialmen’s liens and similar liens. Lessee shall commence construction of the Improvements on or before December 1, 2022 (the “Commencement Date”) and diligently pursue such construction to completion and complete such construction on or about December 1, 2025 (the “Completion Date”). The Improvements shall be constructed by Lessee in accordance with the Construction Documents and all Requirements of Governmental Authority, without any encroachments on easements, public land or adjacent land and in accordance with and without violating Applicable Requirements. The Improvements shall be owned by Lessor at all times, and Lessee shall have no interest in the Premises, except as otherwise provided in the Lease. Lessee covenants that, upon completion of the Improvements, the Premises, including fixtures and equipment located therein, will be fully equipped and operational, in good condition and repair, clean, orderly, sanitary, safe, landscaped, decorated, attractive and well-maintained. In addition to those licenses, permits, certifications and approvals which are required to commence construction of the Improvements, Lessee shall timely obtain and maintain all other consents, licenses, permits, certifications and approvals required to construct or complete the Improvements. On or before the Completion Date, Lessee shall have obtained from each Governmental Authority, and from each beneficiary of each restrictive covenant, all licenses, permits, authorizations, consents and approvals necessary for the occupancy and operation of the Improvements for their intended purpose, and as of the Completion Date such licenses, permits, authorizations, consents and approvals will be in full force and effect.

Section 2.03 Lease Requirements. Lessee shall be solely responsible for complying with the requirements set forth in the Lease for the construction of the Improvements and the operation of the business on the Premises.

Section 2.04 Construction Personnel. Lessee shall be solely responsible for investigating, hiring, training, paying, supervising and discharging all personnel required in order to perform Lessee’s obligations under this Agreement. Such personnel shall in every instance be deemed independent contractors or employees, as the case may be, of Lessee and not of Lessor or STORE, and all matters pertaining to the employment, supervision, compensation, promotion and discharge of such employees or independent contractors shall be the sole responsibility of Lessee. Lessee shall require any architects, engineers, contractors and subcontractors engaged in connection with the construction of the Improvements to perform their respective obligations under the terms of their respective agreements, and to be licensed in accordance with State law.

Section 2.05 Coordination. In connection with Lessee’s obligations under this Agreement, Lessee shall regularly apprise STORE of the progress and performance of any contractors and subcontractors and provide such oversight as may be required to assure completion of the work to be performed by them; coordinate the performance of all contractors and perform such other acts as are customarily performed by a developer to ensure timely performance by the contractors under their respective contracts; attend progress meetings to discuss procedures, progress, problems and scheduling; review and monitor safety programs for the Improvements, which safety programs shall be the responsibility of the Lessee; and conduct special inspections and obtain testing to guard against defects and deficiencies in workmanship.

Section 2.06 Transition. Lessee shall be responsible for the transition of the Improvements from the development phase to use and occupancy of the Premises by Lessee.

Section 2.07 Required Approvals. Prior to commencement of construction of the Improvements and as a condition precedent to the obligations of STORE hereunder, Lessee shall, at least ten (10) Business Days prior to the initial Request for Disbursement, deliver to STORE a copy of the Budget (which shall be approved by STORE in writing), the General Contract, the Architect’s Agreement, a complete permitted set of construction drawings and all necessary permits and approvals required to commence construction of the Improvements and STORE shall deliver written approval of such items to Lessee.

Section 2.08 Construction Monitoring. STORE, in its sole discretion, may engage a third party property inspector (“Progress Inspector”) to perform certain construction monitoring services in connection with the construction of the Improvements and the Disbursements, including reviewing all construction documents provided by Lessee pursuant to the terms hereof, Budget analysis and construction progress monitoring.

Section 2.09 Costs and Expenses. The Disbursements shall be made without any cost whatsoever to STORE. All reasonable out-of-pocket costs and expenses actually incurred by STORE pursuant to this Agreement including, but not limited to, the costs of title searches, updated title policy, new title policy if required by the applicable jurisdiction, endorsements, survey, appraisal, taxes, recording fees, Progress Inspector costs and all other reasonable expenses incurred in connection with the Disbursements and all other reasonable costs, including, but not limited to, attorneys’ fees of Lessee and STORE, shall be payable solely by Lessee. Notwithstanding the foregoing, Lessee shall not be charged a draw fee for any Disbursement.

ARTICLE III

DISBURSEMENTS

Section 3.01 Disbursement Procedures.

(a) Subject to the limitations and conditions set forth in this Agreement, STORE shall make Disbursements from the Construction Funds from time to time to pay approved costs to construct the Improvements. Disbursements will only be made, and may only be used, to pay those costs comprising the Development Price for work that has been completed prior to the delivery of the Request for Disbursement. STORE shall not be obligated to make any Disbursement for deposits or prepayment for work not yet completed or materials not yet delivered and installed at the Premises. Upon receipt and approval of the applicable Requests for Disbursement by STORE, together with a list certified by General Contractor of payees and amounts of checks to be issued by STORE in connection with such Disbursement, STORE shall disburse such funds, less the applicable Retainage, to or on behalf of Lessee within ten (10) days of receipt of STORE’s written approval of such Disbursement, but no later than fifteen (15) days from a Request for Disbursement. STORE may, in its sole discretion, determine to disburse Disbursements jointly to Lessee and General Contractor and/or subcontractors or supplier or directly to General Contractor or subcontractors or suppliers, rather than directly to Lessee, and the execution of this Agreement by Lessee shall, and hereby does, constitute an irrevocable direction and authorization to STORE to so disburse the funds.

(b) Lessee shall prepare and submit for each Disbursement, a Request for Disbursement to STORE. Each Request for Disbursement shall be submitted not less than ten (10) Business Days prior to the requested Disbursement Date and Lessee’s signature on such Request for Disbursement shall evidence Lessee’s certification to STORE that the following are true and complete as of the date the Request for Disbursement is submitted to STORE:

(i) no Event of Default has occurred under the terms of the Development Documents;

(ii) unless otherwise disclosed on the Request for Disbursement, the warranties, representations and covenants of Lessee in this Agreement and the Lease are true, correct and complete in all material respects as of the date of such Request for Disbursement and to the best of Lessee’s knowledge (as determined in accordance with the Lease) will be true, correct and complete in all material respects as of the date of the Disbursement requested such Request for Disbursement;

(iii) all policies of insurance required by this Agreement and the Lease are in full force and effect, all notices required by any Governmental Authority have been duly filed, and all fees, costs and expenses of STORE required to be paid by Lessee under the Development Documents as of the date of the Disbursement requested in connection with such Requests for Disbursement will have been paid on or before such date;

(iv) with respect to each Request for Disbursement submitted for the First Disbursement or any Interim Disbursement: (A) sufficient funds are available to complete the construction of the Improvements in accordance with the Lease, this Agreement, the Contract Documents and the Budget; (B) the portion of the Improvements constructed as of the date of such Request for Disbursement has been completed in a good and workmanlike manner and in accordance with the Contract Documents; (C) all permits, licenses, certificates and related governmental approvals required to construct the Improvements which could have been obtained as of the date of such Request for Disbursement were obtained and all permits, licenses, certificates and related governmental approvals required to complete the construction of the Improvements which will be issued subsequent to the date of such Request for Disbursement will be issued in the ordinary course of business; (D) such Request for Disbursement is true, correct and complete; and (E)(I) the percentages of completion set forth in such Request for Disbursement are correct and consistent with the construction of the Improvements completed to date; (II) the payment amounts requested in such Request for Disbursement accurately reflect the work performed since commencement of the work at the Premises and/or relate to materials and supplies that have been permanently delivered to the Premises; and (III) no work has been performed at the Premises or supplies provided to the Premises with respect to the Improvements for which payment has not been made (other than agreed to Retainages) except by contractors, subcontractors, suppliers, vendors and/or materialmen identified in such Request for Disbursement;

(v) there has been no change whatsoever in connection with the construction of the Improvements, or with the Premises generally, which would cause the Site, Utility and Building Plans to be materially inaccurate; and

(vi) with respect to the Request for Disbursement submitted for the Final Disbursement: (A) the Improvements have been completed in a good and workmanlike manner and in accordance with the Contract Documents; (B) all permits, licenses, certificates and related governmental approvals required to occupy the Premises and the Improvements for their intended purpose have been issued by the appropriate governmental agencies, including without limitation, if applicable, a certificate of occupancy; (C) no work remains to be performed on the Premises for which payment must be made; and (D) upon delivery by STORE of the Final Disbursement to those Persons described in such Requests for Disbursement, STORE shall have satisfied all of its obligations under this Agreement and, without affecting Lessee’s continuing representations, warranties, covenants, agreements and obligations under this Agreement, STORE shall have no further duties or obligations under this Agreement or under the Lease with respect to the Improvements.

Each Request for Disbursement shall also be accompanied by the following: (x) all applicable information and documentation required by this Agreement; (y) evidence that all conditions of this Agreement required to be satisfied prior to such Disbursements have been satisfied or waived; and (z) such additional information, affidavits, certificates and other documents as may be reasonably required by STORE, for making the Disbursement or by Title Company for the issuance of the required updates to the Title Policy and the completion and fulfillment of all requirements in any agreement between STORE and Title Company with respect to the subject matter of this Agreement.

If STORE disapproves all or any part of a Request for Disbursement, STORE will promptly (within no more than five (5) Business Days of the submission of the Request for Disbursement) notify Lessee of such disapproval and the basis therefor by telephone (confirmed in writing). If such Request for Disbursement is approved in writing by STORE, STORE shall disburse such amounts within ten (10) days of receipt of STORE’s written approval of such Disbursement, but no later than fifteen (15) days from a Request for Disbursement, less the applicable Retainage, in accordance with the terms and conditions of this Agreement. If any amount included in a Request for Disbursement is not approved by STORE, STORE shall not be obligated to disburse any disapproved portion of the Disbursement requested unless Lessee shall have objected to such disapproval and resolved each basis for disapproval to the satisfaction of STORE. Lessee must notify STORE of such objection and resolve each basis for disapproval to the reasonable satisfaction of STORE within ten (10) Business Days following STORE’s notification to Lessee of any disapproved portion of a Disbursement. STORE shall have no further obligation to fund such disapproved portion until Lessee resolves each basis for disapproval to the reasonable satisfaction of STORE.

(c) STORE shall withhold 10% of each approved Disbursement (the “Retainage”) and shall hold such Retainage until the time of the Final Disbursement.

Section 3.02 Conditions Precedent to Disbursements.

(a) Lessor’s Funding Obligation. The First Disbursement by STORE of any Construction Funds (not to exceed $8,000,000 prior to the Rebranding defined below in Section 3.02(c)), shall be subject to the following conditions precedent:

(i) STORE shall have received written confirmation satisfactory to STORE, in its reasonable discretion, that Lessee has first funded at least $8,000,000 (inclusive of Lessee’s construction deposit with Feenix (as defined in the Feenix Consent), as in the succeeding sentence) towards the Improvements (“Lessee’s Initial Funding”). Lessee shall provide evidence to STORE’s reasonable satisfaction that it has on deposit in a segregated account with Feenix of at least $3,000,000.00 that will be used solely to fund Lessee’s Initial Funding and will be used first to satisfy Lessee’s obligation to fund Improvements. For the avoidance of doubt, amounts on deposit with Feenix shall be owned by Feenix until such amounts have been spent on Improvements and owned by STORE pursuant to Section 2.02.

(ii) For a trailing six (6) month period, Lessee shall have maintained a CFCCR (defined below) post Capital Replacement Reserve (as defined in the Lease) and payment of management fees under the Management Agreement (as defined in the Lease) of at least 1.25x.

(iii) STORE shall have received a complete Request for Disbursement, together with supporting documentation, the adequacy and completeness of which shall be approved by STORE in writing, including, without limitation, lien waivers, affidavits, and such other documents and certificates as may be reasonably required by STORE. Each Request for Disbursement shall include a properly completed Application and Certificate for Payment (AIA Forms G702 and G703) shall also be executed by General Contractor and attached to the Request for Disbursement. Each Request for Disbursement shall include a Disbursement for eighteen (18) months of Base Monthly Rental calculated using the Applicable Cap Rate (defined below) multiplied by the applicable Disbursement amount multiplied by 1.5, and such amount shall be added to the Security Deposit.

(iv) STORE shall have the right to require an inspection of the Premises by STORE or Progress Inspector prior to each Disbursement, which inspection shall be satisfactory to STORE. If STORE determines in connection with any such inspection that extra services will be required of STORE as a result of noncompliance with the Contract Documents, as a result of deviations from acceptable construction practices, or as a result of Lessee’s failure to satisfy the requirements of any Contract Documents and/or Development Documents, Lessee shall pay, in addition to the reasonable fees for such inspection, the reasonable out-of-pocket cost of all such extra services including any additional inspections determined to be necessary or advisable by STORE. 

(v) STORE shall have received from Title Company updates to the Title Policy, dated the date of each Disbursement, showing title to the Premises in STORE, free and clear of all defects and encumbrances except those approved in writing by STORE and its counsel and those which are stated in the Title Policy, with the standard exception for construction liens deleted and together with such endorsements to the Title Policy as STORE deems appropriate or necessary. Lessee agrees to deliver or cause to be delivered such affidavits, indemnities, notices and/or other agreements as Title Company may require in order to provide the title insurance coverage required pursuant to this Agreement.

(vi) As of the date of each Request for Disbursement and the date of the Disbursement, there shall be no Event of Default under the terms of any Development Document and no event shall exist which by notice, passage of time or both would constitute an Event of Default under any of the Development Documents. Policies of insurance against fire and other hazards in accordance with applicable requirements of this Agreement and the Lease shall be in full force and effect. The warranties and representations of Lessee in this Agreement and the Lease shall be true and correct in all material respects on and as of the date of the Disbursement with the same effect as if made on such date, and Lessee shall not be in breach or default of any covenant set forth in this Agreement or the Lease.

(vii) STORE shall have received evidence satisfactory to STORE of Lessee’s receipt of all required governmental certifications and approvals and association approvals, if applicable, necessary to construct or install the Improvements. All notices, applications and filings required by any Governmental Authority shall have been duly filed. All fees, costs, and expenses required to be paid by Lessee under the Development Documents, as of the date of the Disbursement, shall have been paid or satisfied in full by Lessee as of such date.

(viii) STORE and Lessee acknowledge the initial capitalization rate for Construction Funds disbursed by STORE pursuant to this Agreement is the greater of (i) 8% or (ii) the sum of 5.23% plus the 15-year Swap Rate in effect four (4) Business Days prior to the date of the applicable Disbursement (the “Applicable Cap Rate”). With respect to the First Disbursement and each Interim Disbursement, STORE and Lessee shall have executed an amendment to the Lease increasing the “Base Annual Rental” under the Lease by amount equal to the amount of the Disbursement multiplied by the Applicable Cap Rate. With respect to the Final Disbursement, Lessor and Lessee shall have executed and delivered, at Lessor’s option, either an amendment to or an amendment and restatement of the Lease in a form substantially similar to the Lease, increasing the “Base Annual Rental” under the Lease by amount equal to the amount of the Final Disbursement multiplied by the Applicable Cap Rate.

(b) Reimbursement of Lessee Initial Funding. STORE’s obligation to reimburse Lessee’s Initial Funding (not to exceed $8,000,000) upon completion of the conversion of the Premises to “Alltra by Wyndham” pursuant to the terms of the Franchise Agreement (the “Rebranding”), shall be subject to the following conditions precedent:

(i) For a trailing twelve month period, Lessee shall have maintained a CFCCR post Capital Replacement Reserve and payment of management fees under the Management Agreement of at least 1.25x.

(ii) STORE shall have received an additional Security Deposit (as defined in the Lease) in the amount such that the total Security Deposit under the Lease equals $9,600,000.

(iii) STORE shall have received the documents set forth in Section 3.02(b)(iii) - (viii).

(c) Funding Post Rebranding. STORE’s obligation to fund up to the total Construction Funds in the amount of $25,000,000 (including the Lessor Initial Funding and the Reimbursement of Lessee Initial Funding) (“Funding Post Rebranding”) shall be subject to the following conditions precedent:

(i) For a trailing twelve (12) month period, Lessee shall have maintained a CFCCR post Capital Replacement Reserve and payment of management fees under the Management Agreement of at least 1.50x.

(ii) STORE shall have received an additional Security Deposit (as defined in the Lease) in an amount such that the total Security Deposit under the Lease equals $9,600,000.

(iii) STORE shall have received the documents set forth in Section 3.02(b)(iii) - (viii).

(d) Final Disbursement Obligations. In addition to the requirements set forth in the preceding subsections, the obligation of STORE to make the Final Disbursement shall be conditioned upon the receipt by STORE of:

(i) The Security Deposit balance shall equal eighteen (18) months of Base Annual Rental taking into account the Final Disbursement

(ii) An As-Built Survey satisfactory to STORE and Title Company, together with an additional endorsement to the Title Policy (or a new Title Policy if required by the applicable jurisdiction) confirming that the Improvements are within the boundary lines of the Land, do not encroach upon any easements or rights-of-way and do not violate any setback lines or recorded covenants, conditions or restrictions, excluding any of the foregoing set forth in the Title Policy.

(iii) Final unconditional lien waivers from all contractors, subcontractors, suppliers, vendors and/or other Persons entitled to protection under applicable lien laws. Lien waivers from the General Contractor may be contingent upon receipt of the funds constituting the Final Disbursement. If required by the lien laws of the State, a certificate certifying that the Improvements have been completed substantially in accordance with the Contract Documents, which certificate shall be in any form required by or permitted under such laws and shall be executed by any party required or permitted to execute such certificate under such laws. This requirement shall be satisfied at least five (5) Business Days prior to the anticipated date of the Final Disbursement.

(iv) Evidence satisfactory to STORE and Title Company of the issuance by all appropriate Governmental Authorities of final certificates of use and occupancy of the Improvements, if applicable. This requirement shall be satisfied at least ten (10) Business Days prior to the anticipated date of the Final Disbursement. 

(v) To the extent not previously delivered, upon STORE’s written request, copies of all documents, instruments, agreements, Insurance Policies and certificates required to be delivered pursuant to any Development Document together with any other evidence required by STORE that the Improvements have been substantially completed in accordance with the Contract Documents, in compliance with all Requirements of Governmental Authority and free of all liens. This requirement shall be satisfied at least five (5) Business Days prior to the anticipated date of the Final Disbursement.

(vi) An updated MAI appraisal of the Premises certified to STORE, which shall (i) determine that the fair market value of the Premises is at least equal to the sum of (without duplication) (x) the purchase price paid by STORE or its affiliate to acquire the Premises and (y) the amount of the Construction Funds.

Lessee shall have completed all such requirements within the time frames set forth above, but in any event, such requirements shall be completed in time for STORE to make the Final Disbursement no later than 90 days after the Completion Date.

For purposes of this Section 3.02, “CFCCR” means with respect to the twelve month period of time (or if such lookback period occurs before September 30, 2022, then the date of determination to October 1, 2022 and the applicable amounts in (i) below shall at a minimum of 9 months be annualized) immediately preceding the date of determination, the ratio calculated for such period of time, each as determined in accordance with United States generally accepted accounting principles (“GAAP”), of (i) the sum of Consolidated Net Income (excluding non-cash income), Depreciation and Amortization, Interest Expense, income taxes, Operating Lease Expense and non-cash expenses to (ii) the sum of Operating Lease Expense (excluding non-cash rent adjustments), scheduled principal payments of long term Debt, scheduled maturities of all Finance Leases, dividends and Interest Expense (excluding non-cash interest expense and amortization of non-cash financing expenses). For purposes of calculating the CFCCR, the following terms shall be defined as set forth below:

“Consolidated Net Income” shall mean with respect to the period of determination, the net income or net loss of a Person. In determining the amount of Consolidated Net Income, (i) adjustments shall be made for nonrecurring gains and losses or non-cash items allocable to the period of determination, (ii) deductions shall be made for, among other things, Depreciation and Amortization, Interest Expense, Operating Lease Expense, and (iii) no deductions shall be made for income taxes or charges equivalent to income taxes allocable to the period of determination, as determined in accordance with GAAP.

“Debt” shall mean with respect to a Person, and for the period of determination (i) indebtedness for borrowed money, (ii) subject to the limitation set forth in sub item (v) below, obligations evidenced by bonds, indentures, notes or similar instruments, (iii) obligations under leases which should be, in accordance with GAAP, recorded as Finance Leases, (iv) indebtedness or obligations of a third party utilized to acquire or is secured by any equity in such Person or any assets owned by such Person, and (v) obligations under direct or indirect guarantees in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (i) through (v) above, except for guaranty obligations of such Person, which, in conformity with GAAP, are not included on the balance sheet of such Person.

“Depreciation and Amortization” shall mean the depreciation and amortization accruing during any period of determination with respect to a Person, as determined in accordance with GAAP.

“Finance Lease” shall mean all leases of any property, whether real, personal or mixed, by a Person, which leases would, in conformity with GAAP, be required to be accounted for as a finance lease on the balance sheet of such Person. The term “Finance Lease” shall not include any operating lease.

“Interest Expense” shall mean for any period of determination, the sum of all interest accrued or which should be accrued in respect of all Debt of a Person, as determined in accordance with GAAP.

“Operating Lease Expense” shall mean the sum of all payments and expenses incurred by a Person, under any operating leases projected for the period that is six (6) or twelve (12) months following the requested Disbursement (as applicable) so that the Operating Lease Expense includes all additional Operating Lease Expenses relating to the full amount of STORE’s disbursement obligation that is $8,000,000 for Lessor’s Initial Funding, $8,000,000 for draws relating to the Funding Post Rebranding and the specific amount of the draw relating to Draws Post Rebranding , as determined in accordance with GAAP.

Section 3.03 Balancing Budget; Change Orders.

(a) If STORE shall determine, in its reasonable discretion, that (i) at any time prior to the Completion Date that the actual costs required to complete the Improvements will exceed the Budget or (ii) the Budget is not “in balance” as provided in this Section 3.03(a), STORE may, at its option, refuse to make or approve further Disbursements and may require Lessee to deposit with STORE cash or other security acceptable to STORE in its reasonable discretion in such amount as STORE deems necessary to put the Budget “in balance.” No Construction Funds shall be disbursed until all sums deposited by Lessee with STORE to keep the Budget “in balance” pursuant to this Section 3.03 have been disbursed. Such sums deposited by Lessee with STORE, shall be disbursed in the same manner as the Construction Funds but shall not constitute Construction Funds. The Budget shall be “in balance” only at such times that STORE determines, in its reasonable judgment, that (i) the unadvanced Construction Funds are at least equal to the amount that must be expended in order to complete the Improvements and all costs and other expenses contemplated hereunder, and (ii) unexpended amounts within each category or line item in the Budget are at least equal to the anticipated cost for each line item that must be expended to complete the Improvements. Any costs listed as contingencies on the Budget shall be deemed to be actual costs for the purposes of balancing. The determination as to whether the Budget is “in balance” may be made by STORE at any time, including in connection with any Request for Disbursement. Within five (5) Business Days following notice from STORE that the Budget is not “in balance,” which notice shall be accompanied by STORE’s calculations used to determine that the Budget is not “in balance” Lessee shall make the deposit required to be made pursuant to this Section 3.03(a). Any such amounts deposited with STORE shall be the next funds disbursed by STORE, subject to the terms and conditions of this Agreement.

(b) Lessee shall provide STORE with a copy of all proposed Change Orders. All material Change Orders (i.e. Change Orders which increase the Budget by more than one percent (1%)) are subject to the prior approval of STORE, which approval shall not be unreasonably withheld, conditioned or delayed. Lessee shall be responsible for the payment of all reasonable out-of-pocket fees and expenses incurred by STORE as a result of Change Orders. At the time Lessee requests STORE’s consent to a Change Order, Lessee must also notify STORE and agree to pay for all of the additional costs resulting from such Change Order if such Change Order will result in the actual costs required to complete the Improvements to be in excess of the total amount set forth in the Budget. If such Change Order will result in the actual costs required to complete the Improvements to be in excess of the total amount set forth in the Budget, Lessee shall immediately deposit funds with STORE equal to such additional cost, and STORE shall disburse such deposited funds toward payment of the Development Price prior to any further Disbursement of the Construction Funds, subject to the satisfaction of the requirements for making Disbursements set forth in this Agreement.

Section 3.04 Completion. No later than the Completion Date, Lessee shall provide Lessor copies of the unconditional lien waivers from the General Contractor (and subcontractors, if any), the final certificate of occupancy (or jurisdictional equivalent), if applicable, issued by the applicable Governmental Authority, and any affidavits, indemnity agreements and such other agreements, instruments, documents and certificates as may be reasonably required by STORE and Title Company in order for Title Company to issue a “nothing further” certificate (or the jurisdictional equivalent certificate or endorsement), if applicable, to the Title Policy.

Section 3.05 Disbursement Amounts. Each Disbursement shall be in an amount of at least $250,000 (“Minimum Draw Amount”), except that the Final Disbursement can be in an amount less than the Minimum Draw Amount. Disbursements shall be limited to no more than once per calendar month for the term of the project which is the subject of this Agreement (the “Project”).

Section 3.06 Progress Reporting. Within two (2) Business Days following the completion of each calendar quarter, Lessee shall provide a progress report of the construction completed through the end of such calendar quarter with a reconciliation of such completed work to the Project Budget. Such report shall be provided to STORE whether or not a Disbursement was requested during such calendar quarter.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Lessee represents and warrants to STORE as follows, which representations and warranties, to the extent applicable, shall be deemed made as of the date of this Agreement, each submission of a Request for Disbursement and each Disbursement:

(a) This Agreement and the Lease have been approved by Lessee and, to the extent required by applicable law or any effective restrictive covenant, respectively, each Governmental Authority;

(b) the design, layout and anticipated use of the Improvements complies with or will comply with, by the Completion Date, all applicable zoning ordinances, regulations (including, without limitation, wetlands regulations) and restrictive covenants affecting the Premises and all other Requirements of Governmental Authority and all requirements for such use have been or will have been satisfied by the Completion Date;

(c) as of the date of the First Disbursement, Lessee will have obtained all licenses, permits, authorizations, consents and approvals from Governmental Authorities and/or third parties necessary to commence construction of the Improvements, such licenses, permits, authorizations and consents are in full force and effect and will be maintained in full force and effect throughout construction of the Improvements, and Lessee has no reason to believe that all licenses, permits, certifications and approvals with respect to the Improvements to be issued subsequent to the date of this Agreement will not be issued in the ordinary course of business;

(d) the Land has adequate rights of access to public ways and all water (including domestic potable water), sanitary sewer and storm drain facilities. All public utilities necessary or convenient for the full use and enjoyment of the Premises shall be located in the public right-of-way abutting the Land or permanent easements acceptable to STORE, and if not now connected, the same shall be connected so as to serve the Premises prior to the Completion Date without passing over other property or shall be within easements which are acceptable to STORE. All roads necessary for the full utilization of the Premises for their intended purposes have either been completed or the necessary rights of way therefor have either been acquired by the appropriate Governmental Authority or have been dedicated to public use and accepted by said Governmental Authorities, and all necessary steps have been taken by Lessee and all Governmental Authorities to assure the complete construction and installation thereof prior to the Completion Date;

(e) Prior to the Effective Date, Lessee has not commenced the construction of the Improvements and has made no contract or arrangement of any kind which has given rise to or the performance of which by the other party thereto would give rise to a lien or claim of lien on the Premises;

(f) Lessee is not in default under this Agreement, the Lease or the Contract Documents, and no event has occurred and is continuing which with notice or the passage of time or both would constitute a default under this Agreement, the Lease or the Contract Documents;

(g) Other than as disclosed in the Feenix Consent, Lessee represents that it does not require and agrees that it will not avail itself of any other financial credit for the construction of the Improvements without the prior written consent of STORE; and

(h) upon completion of the Improvements, the Premises, including fixtures and equipment located therein, will be fully equipped and operational, in good repair, clean, orderly, sanitary, safe, landscaped, decorated, attractive and well-maintained.

ARTICLE V

INSURANCE

Section 5.01 Coverages. In addition to satisfying the insurance requirements in the Lease, Lessee shall obtain and maintain, and, in addition to the insurance maintained by Lessee, shall cause its General Contractor to maintain, the following insurance:

(a) builder’s risk insurance (in non-reporting form), insuring the building which includes the existing structure and new building improvements to be constructed, for not less than 100% of their full insurable hard cost replacement and all recurring soft costs; such insurance coverage to be kept in full force and effect at all times until the Completion Date;

(b) to the extent that architectural design work is required, an architect’s professional liability insurance policy obtained by Lessee’s Architect in an amount not less than $1,000,000 per occurrence and in the aggregate $1,000,000 and, in addition, shall put into effect an additional $1,000,000 excess of $1,000,000 per occurrence and in the aggregate, dedicated to the Project. If Lessee’s Architect maintains blanket professional liability insurance in an amount satisfactory to STORE, evidence of such insurance may be delivered to STORE in lieu of the policy;

(c) Commercial General Liability Insurance, including Contractual Liability (to specifically include coverage for the indemnification clause of this Agreement), Products & Completed Operations Liability (including XCU coverage), Broad Form Property Damage, Personal Injury Liability and Advertising Injury Liability, written on an occurrence form, with combined bodily injury and property damage limits of liability of no less than $2,000,000 per occurrence, $2,000,000 per location general aggregate, $2,000,000 Personal & Advertising Injury and $2,000,000 Products and Completed Operations liability with an aggregate limit per project. The limits of liability can be provided in a combination of a Comprehensive General Liability policy and an Umbrella Liability policy, which is written on a no less than follow form basis. The policy should be written on form CG00 01 04 1307 98 or its equivalent and shall not include any exclusions or limitations other than those incorporated in the standard form. Such insurance is to be primary insurance, notwithstanding any insurance maintained by the Indemnified Parties. Products and Completed Operations coverage is to contain a provision for an extension of coverage for three years beyond the completion of the Construction Work under this Agreement. This extended coverage is to have a separate aggregate limit. General Contractor is required to purchase coverage in the amount of $5,000,000 and subcontractors in the amount of $2,000,000. The Completed Operations coverage for General Contractor and subcontractors is to be extended or renewed for three (3) years after completion of construction of the Improvements.

(d) Worker’s Compensation Insurance providing statutory benefits for Lessee’s, General Contractor’s and subcontractor’s employees and Employer’s Liability coverage in an amount that is no less than $500,000; and

(e) Automobile Liability Insurance, including owned, non-owned and hired car liability insurance for combined limits of liability of $4,000,000 per occurrence. The limits of liability can be provided in a combination of an Automobile Liability policy and an Umbrella Liability policy, which is written on a no less than follow form basis;

Section 5.02 General Insurance Requirements. Lessee shall cooperate with STORE in obtaining for STORE the benefits of any insurance proceeds lawfully or equitably payable to STORE in connection with the transactions contemplated hereby, and shall reimburse STORE for any reasonable expenses incurred in connection therewith (including attorneys’ fees and expenses, and the payment by Lessee of the expense of an independent appraisal on behalf of STORE in case of a fire or other casualty affecting the Land or the Improvements). All Insurance Policies shall: (a) provide for a waiver of subrogation by the insurer as to claims against STORE, its employees and agents and provide that such insurance cannot be unreasonably cancelled, invalidated or suspended on account of the conduct of Lessee, its officers, directors, employees or agents; (b) provide that any “no other insurance” clause in the insurance policy shall exclude any policies of insurance maintained by STORE and that the insurance policy shall not be brought into contribution with insurance maintained by STORE; (c) provide that the policy of insurance shall not be terminated, cancelled or substantially modified without at least thirty (30) days’ prior written notice to STORE and to any lender covered by any standard mortgage clause endorsement; (d) Intentionally deleted; (e) be issued by insurance companies licensed to do business in the state in which the Premises is located and which are rated A:VI or better by Best’s Insurance Guide or otherwise approved by STORE; and (f) provide that the insurer shall not deny a claim because of the negligence of Lessee, anyone acting for Lessee or any tenant or other occupant of the Premises. It is expressly understood and agreed that the foregoing minimum limits of insurance coverage shall not limit the liability of Lessee for its acts or omissions as provided in this Agreement. All Insurance Policies (with the exception of worker’s compensation insurance to the extent not available under statutory law) shall designate STORE and Lessor as additional insureds as their interests may appear and shall be payable as set forth in the Lease. All such policies shall be written on a primary and non-contributory basis, with deductibles not to exceed $25,000. Any other policies, including any policy now or hereafter carried by STORE shall serve as excess coverage. Lessee shall procure policies for all insurance for periods of not less than one year, except as otherwise provided in Section 5.01(a) above with respect to builder’s risk insurance, and shall provide to STORE certificates of insurance including additional insured endorsements (CG2010 0704 and CG2037 0704) or, upon STORE’s request, duplicate originals of Insurance Policies evidencing that insurance satisfying the requirements of this Agreement is in effect at all times.

ARTICLE VI

EVENTS OF DEFAULT AND REMEDIES

Section 6.01 Events of Default by Lessee. Any one or more of the following defaults shall constitute an event of default by Lessee hereunder after the expiration of any notice and cure period provided below in this Section (each an “Event of Default”):

(a) If Lessee shall fail to pay when due any payment due under this Agreement within ten (10) days after Lessee’s receipt of notice of such non-payment;

(b) If Lessee shall fail to perform, observe or comply with any of the terms, covenants, conditions or provisions contained in the Contract Documents, beyond any applicable grace or cure period;

(c) If any representation or warranty of Lessee in this Agreement, the Lease or any of the Contract Documents was false in any material respect when made, or if Lessee makes or renders any statement or account to STORE that is false in any material respect; provided, that if such false statement was not intentional, Lessee shall have the right within the time period permitted below in the last paragraph of this Section to correct the false statement and if necessary to cure the underlying circumstance or event to avoid a breach of another covenant under this Agreement or the Lease;

(d) Subject to a Force Majeure Event as provided in Section 7.08 of this Agreement, if the construction of the Improvements is not carried on diligently, or if construction is discontinued for ten (10) Business Days consecutively;

(e) If Lessee shall agree to, or execute, any assignment, pledge, hypothecation or encumbrance of any of the Development Documents or any rights thereunder or of any Disbursement hereunder without STORE’s prior consent, subject to and except as otherwise permitted under the Lease;

(f) If a writ of execution or attachment or any similar process shall be issued or levied against all or any part of or interest in the Premises or any judgment involving monetary damages shall be entered against Lessee which shall become a lien on the Land or the Improvements or any portion thereof or interest therein and such execution, attachment or similar process or judgment is not released, bonded, satisfied, vacated or stayed within 90 days after its entry or levy; or

(g) The occurrence of an “Event of Default” under the Lease.

With respect to any default described in Subsections (b), (c) and (d) above, if such default is not willful or intentional, does not place any rights or property of STORE in immediate jeopardy, does not stop or threaten to stop construction of the Improvements, and is within the reasonable power of Lessee to cure, no Event of Default shall exist and STORE shall not exercise any of its remedies pursuant to Section 6.02 below unless STORE shall have first given Lessee written notice of such event and such default shall not have been cured within ten (10) Business Days after such notice, or within such additional time as may be reasonably necessary for Lessee to cure such default (but in no event more than 180 days) provided Lessee is diligently pursuing a cure of such default. Nothing contained herein shall grant Lessee any additional cure rights or extended cure periods under the Lease.

Section 6.02 Remedies. If an Event of Default shall occur, STORE shall have no obligation to make any further Disbursement hereunder and, at its option, may:

(a) Use, apply or retain the whole or any part of the Lessee Construction Deposit for the payment of any sum which STORE may expend or be required to expend by reason of Lessee’s default hereunder.

(b) Terminate this Agreement, except as to Lessee’s liability under this Agreement.

(c) Enter into possession of the Premises and, with or without such entry, perform any and all work and labor necessary or desirable in STORE’s sole judgment to complete the Improvements substantially in accordance with the Contract Documents and take all appropriate steps to secure and protect the Land and the Improvements. STORE shall be authorized to make such modifications and amendments to the Contract Documents as it deems necessary or appropriate, in its reasonable discretion. STORE may use all materials purchased by Lessee in the construction of the Improvements and no liability shall accrue in favor of Lessee against STORE as a result thereof. In addition, all of Lessee’s right, title and interest in and to all licenses, permits and authorizations relating to the development, construction or operation of the Land or Improvements shall be deemed assigned, transferred and set over to STORE, at the election of STORE and to the extent permitted by law, and Lessee agrees to evidence said assignment, transfer and setting over by an appropriate instrument in writing at STORE’s request. Without curing the applicable Event(s) of Default, all sums expended by STORE pursuant to this subsection shall, at STORE’s election, be deemed additional funds advanced pursuant to Section 3.03(b) above and Disbursements under this Agreement.

(d) Seek to have Lessee specifically perform its obligations under this Agreement, including completion of the Improvements substantially in accordance with the Contract Documents and otherwise in accordance with the terms of this Agreement.

(e) Enforce or avail itself of such other remedies as may be provided at law or in equity.

All powers and remedies given by this section to STORE, subject to applicable law, shall be cumulative and not exclusive of one another or of any other right or remedy or of any other powers and remedies available to STORE under the Development Documents, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements of Lessee contained in this Agreement, and no delay or omission of STORE to exercise any right or power accruing upon any Event of Default occurring shall impair any other or subsequent Event of Default or impair any rights or remedies consequent thereto. Every power and remedy given by this section or by law to STORE may be exercised from time to time, and as often as may be deemed expedient, by STORE, subject at all times to STORE’s right, in its sole judgment to discontinue any work commenced by STORE or change any course of action undertaken by STORE. Whether or not STORE elects any remedy available to STORE, STORE shall not be liable to Lessee for the manner or quality of construction of the Improvements or any failure to construct, complete or protect the Premises, or for the payment of any expenses incurred in connection with the exercise of any remedy available to STORE, or for the performance or nonperformance of any obligation of Lessee under the Development Documents.

Section 6.02 Events of Default by STORE. Any one or more of the following shall constitute an event of default by STORE hereunder (“STORE Event of Default”):

(a) If STORE shall fail to perform, observe or comply with any of the terms, covenants, conditions or provisions contained in any of the Development Documents; or

(b) If any representation or warranty of STORE in any of the Development Documents was false in any material respect when made, or if STORE makes or renders any statement or account that is false in any material respect.

With respect to any STORE Event of Default described in Section 6.03(a) above, Lessee shall not exercise any remedies unless Lessee shall have first given STORE written notice of such STORE Event of Default and such STORE Event of Default shall not have been cured within fifteen (15) days after such notice, or within such additional time as may be reasonably necessary for STORE to cure such STORE Event of Default (but in no event more than 30 days) provided STORE is diligently pursuing a cure of such STORE Event of Default. If a STORE Event of Default shall occur, Lessee may pursue any and all remedies available at law or in equity.

ARTICLE VII

MISCELLANEOUS

Section 7.01 Inspection, Audits and Information Regarding Improvements and Disbursements.

(a) Lessee shall permit STORE, Lessor, Progress Inspector and their representatives and agents, to enter upon the Land at all times and to inspect the Improvements and all materials to be used in the construction thereof, and shall cooperate and cause General Contractor to cooperate with STORE, Lessor, Progress Inspector and their representatives and agents, during such inspections, including making available working copies of the Contract Documents together with all related supplementary materials. If STORE determines in its reasonable discretion in connection with any such inspection that extra services will be required of STORE as a result of (i) noncompliance with the Contract Documents, (ii) deviations from acceptable construction practices, or (iii) Lessee’s failure to satisfy the requirements of any Contract Documents and/or Development Documents, Lessee shall pay, in addition to the reasonable fees for such inspection, the reasonable cost of all such extra services including any additional inspections reasonably determined to be necessary or advisable by STORE.

(b) Lessee shall also permit STORE, Lessor, Progress Inspector and their representatives and agents, to examine, copy and make extracts of the books, records, accounting data and other documents of Lessee that relate to compliance with the terms of this Agreement, including, without limitation, all permits, licenses, consents and approvals of all governmental authorities having jurisdiction over Lessee or the Land. All such books, records and documents shall be made available to STORE, Lessor, Progress Inspector and their representatives and agents promptly upon written demand therefor; and, at the request of STORE or Progress Inspector, Lessee shall furnish STORE, Progress Inspector and their representatives and agents with convenient facilities for the foregoing purpose.

(c) It is expressly understood and agreed that STORE, Lessor and/or Progress Inspector shall have no duty to supervise or to inspect the construction of the Improvements or any books, records, drawings, permits or approvals concerning the construction of the Improvements, and that any such inspection or review shall be for the sole purpose of determining whether or not the obligations of Lessee under this Agreement are being properly discharged and of preserving STORE’s rights hereunder or under the Development Documents. If STORE, Lessor, Progress Inspector or their agents should inspect the construction of the Improvements or any books and records, STORE, Progress Inspector, Lessor and their agents shall have no liability or obligation to Lessee or any third party arising out of such inspection with respect to the compliance of the work contemplated under the Contract Documents or related legal requirements. A review or inspection not followed by a notice of an Event of Default shall not constitute a waiver of any default then existing; nor shall it constitute an acknowledgment or representation by STORE that there has been or will be compliance with the Contract Documents, that the construction is free from defective materials or workmanship, or that there has been a waiver of STORE’s right thereafter to insist that the Improvements be constructed in accordance with the Contract Documents. STORE’s failure to inspect the construction of the Improvements or any part thereof or any books, records, drawings, permits and approvals related to the construction of the Improvements shall not constitute a waiver of any of STORE’s rights hereunder. Neither Lessee nor any third party shall be entitled to rely upon any inspection or review undertaken by STORE, Lessor or Progress Inspector, and none of STORE, Lessor and Progress Inspector owes any duty of care to Lessee or any third party to protect against, or inform Lessee or any third party of the existence of, negligent, faulty, unlawful, inadequate or defective design or construction of the Improvements.

(d) In the event STORE shall give Lessee written notification of a structural defect in the Improvements or material departure from the Contract Documents not approved by STORE, Lessee shall, commence within ten (10) Business Days of receipt of such notice, all necessary steps to cure such structural defect or departure from the Contract Documents. If such defect or departure is not cured within ten (10) Business Day period, such failure shall be an Event of Default under this Agreement and shall entitle STORE to exercise its remedies under this Agreement; provided, however, if Lessee has diligently commenced to cure such defect or departure within such ten (10) Business Day period and additional time beyond such ten (10) Business Day period is reasonably required to correct such defect or departure, an Event of Default shall not be deemed to have occurred so long as Lessee is using commercially reasonable efforts to cure such defect or departure.

Section 7.02 Mechanics’ and Materialmen’s Liens.

(a) Lessee will certify, or cause the General Contractor to certify, to STORE, Lessor and Title Company, upon request of either of them at any time, and from time to time, as to all materialmen, laborers, subcontractors, suppliers and any other parties who might or could claim statutory or common law liens as a result of furnishing material or labor to the Premises or any portion thereof or interest therein, together with evidence satisfactory to STORE, Lessor, and Title Company showing that such parties have been paid (or with respect to a party STORE pays directly will be paid from the Disbursements) all amounts then due for labor and materials. In addition, Lessee will provide or cause to be provided to Title Company all preliminary notices which are filed by laborers, subcontractors, materialmen and suppliers under Requirements of Governmental Authority, and notify STORE, Lessor and Title Company immediately in writing, if Lessee receives any notice, written or oral, from any laborer, subcontractor, materialman or supplier to the effect that said laborer, subcontractor, materialman or supplier has not been paid when due or intends to or has filed any mechanics lien for any labor or materials furnished in connection with the construction of the Improvements.

(b) If, during the construction of the Improvements, a lien is filed against the Premises for work performed on or goods and/or services provided to the Premises, STORE shall provide Title Company and Lessee with notice of the filing of such lien promptly after STORE obtains knowledge of such filing. Lessee shall have twenty (20) Business Days after delivery of STORE’s notice to cause such lien to be released from the applicable real property records or to post a bond or provide an indemnity satisfactory to Title Company which will enable Title Company to issue an endorsement to the Title Policy at the time such bond is posted or indemnity delivered insuring over such lien. If Lessee fails to cause such lien to be released or to post such a bond or deliver such an indemnity, such failure shall be an Event of Default under this Agreement and shall entitle STORE to exercise the remedies set forth in Section 6.02. If, at the time the lien is filed, an Event of Default shall have occurred and be continuing under this Agreement, the filing of the lien shall be an additional Event of Default under this Agreement and shall entitle STORE to exercise the remedies set forth in Section 6.02, and STORE shall be authorized to take corrective actions with respect to such lien.

Section 7.03 Further Assurances. STORE and Lessee shall do and execute all and such further lawful acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement as Lessee or STORE may reasonably require from time to time, provided that Lessee’s obligations shall not be enlarged or rights abridged under this Agreement, thereby.

Section 7.04 Prevailing Party. In the event of any judicial or other adversarial proceeding concerning this Agreement, to the extent permitted by law, the prevailing party shall be entitled to recover all of its reasonable attorneys’ fees and other costs in addition to any other relief to which it may be entitled.

Section 7.05 Waivers. Lessee does hereby expressly waive in favor of STORE and its assigns, to the fullest extent allowed by law, any and all exemptions from seizure provided by any applicable law, rule or regulation of any Governmental Authority. No provision of this Agreement shall be deemed waived or amended except by a written instrument setting forth the matter waived or amended and signed by the party against which enforcement of such waiver or amendment is sought. Waiver of any matter shall not be deemed a waiver of the same or any other matter on any future occasion.

Section 7.06 Force Majeure. A party’s obligation to perform under this Agreement, shall be suspended if and so long as the non-performance of such obligation shall be directly caused by a strike, lockout, Act of God, pandemic, epidemic, materials shortages or delivery delays (not as a result of the actions of Lessee) enemy action, war, national emergency, riot, fire or other similar exigency which is unforeseeable, not brought about by the lack of diligence of the non-performing party, and beyond the reasonable control of the non-performing party (the “Force Majeure Event”); provided, however, that within fifteen (15) days after the happening of the Force Majeure Event, the non-performing party shall give written notice to all other parties of the existence of and nature of the Force Majeure Event and the steps which the non-performing party has taken or will take to eliminate or overcome the Force Majeure Event; and provided, further, that the non-performing party shall exercise reasonable diligence in eliminating and overcoming the Force Majeure Event.

Section 7.07 Security Interest. To secure Lessee’s obligations to STORE under this Agreement, Lessee hereby grants to STORE a first and prior security interest, in, on and against all plans, specifications, drawings, architect’s agreements, contractor’s agreements, licenses, permits and certificates relating to the construction of the Improvements. Lessee authorizes STORE to file financing statements with respect to the security interest of STORE, continuation statements with respect thereto, and any amendments to such financing statements which may be necessitated. Lessee agrees that, notwithstanding any provision in the Uniform Commercial Code in effect in the state to the contrary, Lessee shall not file a termination statement of any financing statement filed by STORE in connection with any security interest granted under this Agreement if STORE reasonably objects to the filing of such termination statement. Lessee shall do all acts and things, shall execute and file all instruments (including security agreements, UCC financing statements, continuation statements, etc.) reasonably requested by STORE to establish, maintain and continue the perfected security interest of STORE in the collateral described above, and shall promptly on demand pay all reasonable costs and expenses of filing and recording, including the costs of any searches deemed necessary by STORE from time to time to establish and determine the validity and the continuing priority of the security interest of STORE. Lessee agrees that a carbon, photographic or other reproduction of a security agreement or financing statement shall be sufficient as a financing statement. STORE is hereby irrevocably appointed Lessee’s attorney-in-fact to take any of the foregoing actions requested of Lessee by STORE if Lessee should fail to take such actions, which appointment shall be deemed coupled with an interest.

Section 7.08 Notices. All notices, demands, designations, certificates, requests, offers, consents, approvals, appointments and other instruments given pursuant to this Agreement (collectively called “Notices”) shall be in writing and given by (a) hand delivery, (b) express overnight delivery service or (c) electronic mail message (with a copy thereof also being delivered by one of the other methods of notice in the event of a notice of default) and shall be deemed to have been delivered upon (i) receipt, if hand delivered, (ii) the next Business Day, if delivered by a reputable express overnight delivery service, or (iii) transmission, if delivered by electronic mail.

Notices shall be provided to the parties and addresses (or facsimile numbers, as applicable) specified below:

or to such other address or such other Person as either party may from time to time hereafter specify to the other party in a notice delivered in the manner provided above. Whenever in this Agreement the giving of Notice is required, the giving thereof may be waived in writing at any time by the Person or Persons entitled to receive such Notice.

Section 7.09 Assignment. The terms and conditions of the Lease shall control with respect to any sale, transfer or assignment of this Agreement by Lessee. STORE may sell, transfer or assign this Agreement at any time and without the consent of Lessee provided that STORE simultaneously sells, transfers or assigns the Lease to the same party, as may permitted under the Lease. Upon any unconditional assignment of any of STORE’s rights and interests hereunder, STORE shall automatically be relieved, from and after the date of such assignment, of liability for the performance of any obligation of STORE contained in this Agreement with respect to such rights and interests, provided that such assignee assumes that rights and obligations of STORE under this Agreement and the “Lessor” under the Lease.

Section 7.10 Time is of the Essence. The parties hereto expressly agree that time is of the essence with respect to this Agreement.

Section 7.11 Non-Business Days. If the date for delivery of a notice or performance of some other obligation of a party falls on a Saturday, Sunday or legal holiday in the State of Florida, then the date for delivery of such notice or performance shall be postponed until the next Business Day.

Section 7.12 Personal Liability. Notwithstanding anything to the contrary provided in this Agreement, it is specifically understood and agreed, such agreement being a primary consideration for the execution of this Agreement by STORE, that (a) there shall be absolutely no personal liability on the part of any shareholder, director, officer, manager, member, officer or employee of Lessee or STORE with respect to any of the terms, covenants and conditions of this Agreement, and (b) the parties waive all claims, demands and causes of action against the opposing party’s shareholders, officers, directors, managers, members, employees and agents in the event of any breach by Lessee or STORE of any of the terms, covenants and conditions of this Agreement to be performed by Lessee or STORE.

Section 7.13 Headings; Internal References. The headings of the various sections and exhibits of this Agreement have been inserted for reference only and shall not to any extent have the effect of modifying the express terms and provisions of this Agreement. Unless stated to the contrary, any references to any section, subsection, exhibit and the like contained in this Agreement are to the respective section, subsection, exhibit and the like of this Agreement.

Section 7.14 Entire Agreement. This Agreement and the Lease constitute the entire agreement between the parties with respect to the subject matter hereof, and there are no other representations, warranties or agreements, written or oral, between Lessee and STORE with respect to the subject matter of this Agreement.

Section 7.15 Forum Selection; Jurisdiction; Venue. For purposes of any action or proceeding arising out of this Agreement, the parties hereto expressly submit to the jurisdiction of all federal and state courts located in St. Lucie County, State of Florida. Lessee consents that it may be served with any process or paper by personal service within or without the State of Florida in accordance with applicable law. Furthermore, Lessee waives and agrees not to assert in any such action, suit or proceeding that it is not personally subject to the jurisdiction of such courts, that the action, suit or proceeding is brought in an inconvenient forum or that venue of the action, suit or proceeding is improper.

Section 7.16 Separability; Binding Effect; Governing Law. Each provision hereof shall be valid and shall be enforceable to the extent not prohibited by law. If any provision hereof or the application thereof to any Person or circumstance shall to any extent be invalid or unenforceable, the remaining provisions hereof, or the application of such provision to Persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby. Subject to the provisions of Section 7.09, all provisions contained in this Agreement shall be binding upon, inure to the benefit of and be enforceable by the successors and assigns of each party hereto, including, without limitation, any United States trustee, any debtor-in-possession or any trustee appointed from a private panel, in each case to the same extent as if each successor and assign were named as a party hereto. This Agreement shall be governed by, and construed with, the laws of the State of Florida, without giving effect to its conflict of laws principals.

Section 7.17 Intentionally omitted

Section 7.18 Waiver of Jury Trial and Certain Damages. THE PARTIES HERETO SHALL AND THEY HEREBY DO INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND/OR ANY CLAIM OR INJURY OR DAMAGE RELATED THERETO. THE PARTIES FURTHER WAIVE THE RIGHT TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO.

Section 7.19 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. Furthermore, the undersigned agree that transmission of a fully executed copy of this Agreement via e-mail in a “.pdf” or other electronic format shall be deemed transmission of the original Agreement for all purposes.

Section 7.20 STORE’s Relationship to Others. STORE is not a partner or joint venturer in any manner whatsoever with Lessee or any other party in the construction of the Improvements. STORE shall not be responsible for the solvency of any company issuing any policy of insurance pursuant to any of the Development Documents whether or not approved by it, or for the collection of any amounts due under any such policy, and shall be responsible and accountable only for such money as may be actually received by it, and then only in accordance with the terms of the Development Documents.

Section 7.21 Indemnification. Except for the gross negligence or willful misconduct of the Indemnified Parties, Lessee agrees to indemnify, hold harmless and defend STORE and its respective directors, officers, shareholders, employees, successors, assigns, agents, lenders, contractors, subcontractors, experts, licensees, affiliates, mortgagees, trustees and invitees, as applicable (collectively, the “Indemnified Parties”), from and against any and all claims, demands, causes of action, suits, proceedings, losses, costs, claims, liabilities, damages (and only to the extent third party claims includes these elements, consequential and punitive) and expenses, including, without limitation, attorneys’ fees caused by, incurred or resulting from the breach of any of the representations, warranties, covenants, agreements or obligations of Lessee, its officers, employees, agents, set forth in this Agreement (including but not limited to those representations set forth in each Request for Disbursement), or Lessee’s operations of or relating in any manner to the Premises, whether relating to its original design or construction, latent defects, alterations, maintenance, use by Lessee or any Person thereon, supervision or otherwise.

[Remainder of page intentionally left blank; signature page(s) to follow]

IN WITNESS WHEREOF, STORE and Lessee have entered into this Agreement as of the date first above written.

IN WITNESS WHEREOF, STORE and Lessee have entered into this Agreement as of the date first above written.

EXHIBIT A

DEFINED TERMS

“AIA” means the American Institute of Architects.

“ALTA” means the American Land Title Association.

“Applicable Requirements” means any and all (i) zoning requirements, (ii) covenants, conditions, restrictions and easements now or hereafter of record, (iii) association or other rules and regulations, (iv) setback lines, (v) applicable public or private use restrictions, or (v) other restrictions or regulations, which are applicable to Lessee or to the Premises, or to the use, manner of use, occupancy, possession, improvement, operation, maintenance, alteration, repair or restoration of the Premises, even if compliance therewith necessitates structural changes or improvements or results in interference with the use or enjoyment of the Premises.

“Architect’s Agreement” means the agreement between Lessee and Lessee’s Architect for the performance of architectural services in connection with the construction of the Improvements pursuant to AIA form B141 or B151, with such changes to such form as STORE may require and/or approve, or pursuant to such other form as STORE may approve.

“As-Built Survey” means an ALTA survey depicting the completed Improvements, which survey shall be prepared and certified in accordance with STORE’s Standard Survey Requirements, including, without limitation, the Minimum Standard Detail Requirements and Classifications for ALTA/NSPS Land Title Surveys, jointly established and adopted by ALTA and NSPS in 2016, as revised from time to time, including such Table A items as STORE shall require and depicting the location of all utilities located on or immediately adjacent to the Land.

“Budget” means the detailed budget for the Development Price prepared by Lessee and/or Lessee’s Architect and approved in writing by STORE pursuant to Section 2.07, allocating the Development Price to specific items of Hard Costs, as the same may be amended, modified or supplemented with the consent of STORE, which Budget shall not exceed the amount of the Construction Funds. STORE is hereby authorized and instructed to attach the approved Budget to this Agreement as Exhibit C.

“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of Florida or is a day on which banking institutions located in such state are closed.

“Change Orders” means any amendments, modifications or supplements to the Contract Documents, accompanied by a certificate of Lessee outlining the impact of the amendment or modification on the Development Price and the Budget, which amendments or modifications are subject to the prior approval of STORE.

“Completion Date” has the meaning set forth in Section 2.02.

“Construction Funds” has the meaning set forth in Section 2.01.

“Contract Documents” means the Architect’s Agreement (including the final drawings, specifications and other agreements and schedules for the construction of the Improvements prepared by Lessee’s Architect) and the General Contract, together with all amendments and modifications thereof and supplements thereto made by Change Orders, all of which agreements and items are subject to the approval of STORE.

“CSI” means Construction Specifications Institute.

“Development Documents” means this Agreement, the Lease, the Title Policy, the Architect’s Agreement, the General Contract and all affidavits, certifications and other documents and instruments delivered to or required by STORE to evidence the Disbursements, as from time to time amended or supplemented.

“Development Price” means an amount equal to the sum of (i) the Hard Costs, (ii) the Soft Costs, and (iii) and such other amounts as may be advanced by STORE pursuant to the terms of this Agreement, but in no event greater than the amount of the Construction Funds.

“Disbursement Date” means the date of a Disbursement.

“Disbursements” means disbursements of the Construction Funds by STORE pursuant to this Agreement. The Disbursements shall consist of the First Disbursement, the Interim Disbursements, and the Final Disbursement.

“Event of Default” means an event of default as defined in Section 6.01.

“Final Disbursement” means the final Disbursement to be made within 10 Business Days of the Request for Disbursement if approved by STORE and no later than 90 days after the Completion Date if approved by STORE, which Final Disbursement shall be subject to the satisfaction of the conditions set forth in Section 3.02 of this Agreement.

“First Disbursement” means the Disbursement to be made by STORE following satisfaction of the applicable conditions for Disbursement set forth in Section 3.02 of this Agreement.

“Franchise Agreement” means that certain TMH Worldwide, LLC Membership Agreement dated September 1, 2022 by and between Franchisor and Lessee.

“Franchisor” means TMH Worldwide, LLC, a Delaware limited liability company, or its successors and permitted assigns.

“Force Majeure Event” has the meaning set forth in Section 7.06.

“General Contract” means the construction contract between Lessee and General Contractor for the development of the Land and the construction of the Improvements, for a stipulated amount or guaranteed maximum price, pursuant to AIA form A101 or A102, with such changes to such form as STORE may require and/or approve, or pursuant to such other form as STORE may approve.

“General Contractor” means the general contractor named in the General Contract.

“Governmental Authority” means the United States of America, the state in which the Land is located, the state under the laws of which STORE or Lessee is organized or doing business, any political subdivision of any of them and any court, agency, department, commission, board, bureau or instrumentality of any of them.

“Hard Costs” means the total of all costs and expenses, other than the Soft Costs, relating to the construction of the Improvements as identified in the Budget. Costs for materials and supplies related to the Improvements shall not be approved “Hard Costs” until such time as the materials and supplies are permanently delivered to the Premises. Costs for materials and supplies that are located offsite from the Premises shall not constitute “Hard Costs” hereunder.

“Improvements” means the improvements to be constructed upon the Land in accordance with the Contract Documents.

“Indemnified Parties” has the meaning set forth in Section 7.21.

“Insurance Policies” means insurance policies as described in, and providing the insurance required by, the Lease and this Agreement.

“Interim Disbursements” means the Disbursements made subsequent to the First Disbursement and prior to the Final Disbursement, and following the satisfaction of the applicable conditions for Disbursement set forth in Section 3.02 of this Agreement. Interim Disbursements will only be made with the prior written consent of STORE.

“Land” means the parcel or parcels of real estate legally described in Exhibit B attached hereto, and all rights, privileges and appurtenances associated therewith and all improvements located thereon as of the date hereof.

“Lease” has the meaning set forth in Section 2.01.

“Lessee” has the meaning set forth in Introductory Paragraph.

“Lessee’s Architect” means the architect named in the Architect’s Agreement.

“Lessor” has the meaning set forth in Section 2.01.

“Minimum Draw Amount” has the meaning set forth in Section 3.05.

“NSPS” means the National Society of Professional Surveyors, Inc.

“Notices” has the meaning set forth in Section 7.08.

“Person” means any individual, partnership, corporation, limited liability company, trust, unincorporated organization, Governmental Authority, or any other form of entity.

“Premises” means the Land and the Improvements.

“Progress Inspector” has the meaning set forth in Section 2.08.

“Project” has the meaning set forth in Section 3.05.

“Request for Disbursement” means a properly completed statement in the form attached hereto as Exhibit D, certified to STORE by Lessee and delivered to STORE. Each Request for Disbursement shall include invoices sufficient in the judgment of STORE to substantiate all costs which are to be paid from the requested Disbursement and such lien waivers and/or affidavits and other information as Title Company may require in order to issue an update or endorsement to the Title Policy requested by STORE.

“Requirements of Governmental Authority” means any law, ordinance, order, rule or regulation of a Governmental Authority.

“Retainage” has the meaning set forth in Section 3.01(c).

“Site, Utility and Building Plans” means the site, utility and building plans delivered to STORE, which Site, Utility and Building Plans shall depict the Improvements and the utilities to be constructed pursuant to the Contract Documents.

“Soft Costs” means certain fees, costs and expenses relating to the construction of the Improvements as identified in the Budget as soft costs, including, without limitation, the cost of title insurance, the reasonable attorneys’ fees of Lessee, the cost of surveys, stamp taxes, transfer taxes, disbursement fees, escrow and recording fees and the reasonable fees and expenses of Lessee’s Architect, which shall be approved as to category and amount by STORE in its (i) reasonable discretion to the extent such fees, costs and expenses do not exceed the aggregate amount of Soft Costs shown in the Budget and (ii) sole discretion to the extent such fees, costs and expenses exceed the aggregate amount of Soft Costs shown in the Budget.

“State” means the state where the Premises is located.

“STORE” has the meaning set forth in Introductory Paragraph.

“STORE Event of Default” has the meaning set forth in Section 6.03.

“Swap Rate” shall mean the International Swap and Derivatives Association Benchmark Rate for a 15-year U.S. dollar interest rate swap for the last day of trading, as published on the last day of trading on Reuters page ISDAFIX1 (or on such other Reuters page or by such other means as shall be designated by ISDA for the purpose of publishing and disseminating ISDA Benchmark Rates for U.S. dollar interest rate swaps).

“Title Company” means First American Title Insurance Company located in Phoenix, Arizona.

“Title Policy” means the owner’s policy of title insurance issued to STORE by Title Company in connection with STORE’s acquisition of the Premises, as such Title Policy shall be updated and endorsed from time to time as contemplated by this Agreement and all other agreements between STORE and Title Company with respect to the subject matter of this Agreement.

EXHIBIT B

DESCRIPTION OF LAND and premises

Street Address: 4500 SE Pine Valley Street, Port St. Lucie, Florida 34952

Legal Description:

EXHIBIT C

COPY OF BUDGET

[*]

EXHIBIT D

FORM OF REQUEST FOR DISBURSEMENT

[*]

Exhibit 10.3

LEASE AGREEMENT

THIS LEASE AGREEMENT (this “Lease”) is made as of September 2, 2022 (the “Effective Date”), by and between STORE CAPITAL ACQUISITIONS, LLC, a Delaware limited liability company (“Lessor”), whose address is 8377 E. Hartford Drive, Suite 100, Scottsdale, Arizona 85255, and ALTITUDE HOSPITALITY LLC, a Florida limited liability company (“Lessee”), whose address is 4500 SE Pine Valley Street, Port St. Lucie, Florida 34952. Capitalized terms not defined herein shall have the meanings set forth in Exhibit A hereto.

In consideration of the mutual covenants and agreements herein contained, Lessor and Lessee hereby covenant and agree as follows:

ARTICLE I

Basic Lease Terms

Section 1.01. Property. The street address and legal description of the Property is set forth on Exhibit B attached hereto and incorporated herein.

Section 1.02. Initial Term Expiration Date. September 30, 2042.

Section 1.03. Extension Options. Four (4) extensions of five (5) years each, as described in Section 3.02.

Section 1.04. Term Expiration Date (if fully extended). September 30, 2062.

Section 1.05. Base Annual Rental. Initially $4,400,000.00, subject to adjustments as described in Article IV, and subject to additional adjustments as set forth in Section 3.01(b)(vi) of the Disbursement Agreement.

Section 1.06. Rental Adjustment. The lesser of (i) 2%, or (ii) 1.25 times the change in the Price Index, as described in Section 4.02.

Section 1.07. Adjustment Date. October 1, 2023 and annually on every October 1^st thereafter during the Lease Term (including any Extension Term).

Section 1.08. Security Deposit. $6,600,000, subject to the terms of Section 4.08.

Section 1.09. Capital Replacement Reserve. 4% of Gross Revenue each month in accordance with the terms of Section 4.09.

Section 1.10. Guarantor. Individually and collectively, Greg Breunich, an individual and ALTITUDE INTERNATIONAL HOLDINGS, INC., a New York corporation.

Section 1.11. Lessee Tax Identification No. 88-3544271.

Section 1.12. Lessor Tax Identification No. 45-2674893.

ARTICLE II

Lease of PropertY

Section 2.01. Lease. In consideration of Lessee’s payment of the Rental and other Monetary Obligations and Lessee’s performance of all other obligations hereunder, Lessor hereby leases to Lessee, and Lessee hereby takes and hires, the Property, including all of Lessor’s right, title and interest therein “AS IS” and “WHERE IS” without representation or warranty by Lessor, and subject to the existing state of title, the parties in possession, any statement of facts which an accurate survey or physical inspection might reveal, and all Legal Requirements now or hereafter in effect.

Section 2.02. Quiet Enjoyment. So long as Lessee shall pay the Rental and other Monetary Obligations provided in this Lease and shall keep and perform all of the terms, covenants and conditions on its part contained herein and subject to the rights of Lessor under Section 12.02, Lessee shall have, subject to the terms and conditions set forth herein, the right to the peaceful and quiet enjoyment and occupancy of the Property.

ARTICLE III

Lease Term; Extension

Section 3.01. Initial Term. The initial term of this Lease (“Initial Term”) shall commence as of the Effective Date and shall expire at midnight on August 31, 2042, unless terminated sooner as provided in this Lease and as may be extended as provided herein. The time period during which this Lease shall actually be in effect, including any Extension Term, is referred to as the “Lease Term.”

Section 3.02. Extensions. Unless this Lease has expired or has been sooner terminated, or an Event of Default has occurred and is continuing at the time any extension option is exercised, Lessee shall have the right and option (each, an “Extension Option”) to extend the Initial Term for the Property for four (4) additional successive periods of five (5) years each (each, an “Extension Term”), pursuant to the terms and conditions of this Lease then in effect.

Section 3.03. Notice of Exercise. Lessee may only exercise the Extension Options by giving written notice thereof to Lessor of its election to do so no later than thirty (30) days prior to the expiration of the then-current Lease Term. If written notice of the exercise of any Extension Option is not received by Lessor by the applicable dates described above, then this Lease shall terminate on the last day of the Initial Term or, if applicable, the last day of the Extension Term then in effect. Upon the request of Lessor or Lessee, the parties hereto will, at the expense of Lessee, execute and exchange an instrument in recordable form setting forth the extension of the Lease Term in accordance with this Section 3.03.

Section 3.04. Removal of Personalty. Upon the expiration of the Lease Term, and if Lessee is not then in breach hereof, Lessee may remove from the Property all personal property belonging to Lessee. Lessee shall repair any damage caused by such removal and shall leave the Property clean and in working condition, subject to normal wear and tear, casualty and condemnation. Any property of Lessee left on the Property on the thirtieth (30^th) day following the expiration of the Lease Term shall, at Lessor’s option, automatically and immediately become the property of Lessor.

ARTICLE IV

Rental and Other Monetary Obligations

Section 4.01. Base Monthly Rental. During the Lease Term, on or before the first day of each calendar month, Lessee shall pay in advance the Base Monthly Rental then in effect. If the Effective Date is a date other than the first day of the month, Lessee shall pay to Lessor on the Effective Date the Base Monthly Rental prorated by multiplying the Base Monthly Rental by a fraction, the numerator of which is the number of days remaining in the month (including the Effective Date) for which Rental is being paid, and the denominator of which is the total number of days in such month.

Section 4.02. Adjustments. During the Lease Term (including any Extension Term), on the first Adjustment Date and on each Adjustment Date thereafter, the Base Annual Rental shall increase by an amount equal to the Rental Adjustment; provided, however, that in no event shall Base Annual Rental be reduced as a result of the application of the Rental Adjustment.

Section 4.03. Additional Rental. Lessee shall pay and discharge, as additional rental (“Additional Rental”), all sums of money required to be paid by Lessee under this Lease which are not specifically referred to as Rental. Lessee shall pay and discharge any Additional Rental when the same shall become due, provided that amounts which are billed to Lessor or any third party, but not to Lessee, shall be paid within fifteen (15) days after Lessor’s demand for payment thereof or, if earlier, when the same are due. In no event shall Lessee be required to pay to Lessor any item of Additional Rental that Lessee is obligated to pay and has paid to any third party pursuant to any provision of this Lease.

Section 4.04. Rental to be Net to Lessor. The Base Annual Rental payable hereunder shall be net to Lessor, so that this Lease shall yield to Lessor the Rental specified during the Lease Term, and all Costs and obligations of every kind and nature whatsoever relating to the Property shall be performed and paid by Lessee. Lessee shall perform all of its obligations under this Lease at its sole cost and expense. All Rental and other Monetary Obligations which Lessee is required to pay hereunder shall be the unconditional obligation of Lessee and shall be payable in full when due and payable, without notice or demand, and without any setoff, abatement, deferment, deduction or counterclaim whatsoever.

Section 4.05. ACH Authorization. Upon execution of this Lease, Lessee shall deliver to Lessor a complete Authorization Agreement – Pre-Arranged Payments in the form of Exhibit C attached hereto and incorporated herein by this reference, together with a voided check for account verification, establishing arrangements whereby payments of the Base Monthly Rental are transferred by Automated Clearing House Debit initiated by Lessor from an account established by Lessee at a United States bank or other financial institution to such account as Lessor may designate. Lessee shall continue to pay all Rental by Automated Clearing House Debit unless otherwise directed by Lessor.

Section 4.06. Late Charges; Default Interest. Any delinquent Base Monthly Rental payment made beyond thirty (30) days of when due shall, in addition to any other remedy of Lessor, incur a late charge of five percent (5%) (which late charge is intended to compensate Lessor for the cost of handling and processing such delinquent payment and should not be considered interest). Any delinquent Base Monthly Rental payment made beyond five (5) days of when due and any payment of other Monetary Obligation made beyond fifteen (15) days after Lessee’s receipt of notice from Lessor of such delinquent Monetary Obligation shall bear interest at the Default Rate, such interest to be computed from and including the date such payment was due through and including the date of the payment; provided, however, in no event shall Lessee be obligated to pay a sum of late charge and interest higher than the maximum legal rate then in effect.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

Section 4.07. Holdover. If Lessee remains in possession of the Property after the expiration of the term hereof, Lessee, at Lessor’s option and within Lessor’s sole discretion, may be deemed a tenant on a month-to-month basis and shall continue to pay Rental and other Monetary Obligations in the amounts herein provided, except that the Base Monthly Rental shall be automatically increased to one hundred fifty percent (150%) of the last Base Monthly Rental payable under this Lease, and Lessee shall comply with all the terms of this Lease; provided that nothing herein nor the acceptance of Rental by Lessor shall be deemed a consent to such holding over. Lessee shall defend, indemnify, protect and hold the Indemnified Parties harmless from and against any and all Losses resulting from Lessee’s failure to surrender possession upon the expiration of the Lease Term.

Section 4.08. Deposit.

(a) Security Deposit. Lessee has paid Lessor upon the delivery of this Lease the sum of $6,600,000 (the “Security Deposit”) as security for the full and faithful performance by Lessee of each and every term, provision, covenant and condition of this Lease. If at any time an Event of Default has occurred and continuing, Lessor may, but shall not be required to, use, apply or retain the whole or any part of the Security Deposit for the payment of any Monetary Obligation (including Rental) in default or for any other sum which Lessor may reasonably expend or be required to expend by reason of such Event of Default, including any damages or deficiency in the reletting of the Property, whether such damages or deficiency accrue before or after summary proceedings or other re-entry by Lessor. Lessor shall provide Lessee with written notice of any sum which Lessor expends pursuant to this Section 4.08. Each time Lessor so uses any amount of the Security Deposit, (a) the related delinquent payment shall continue to bear interest at the Default Rate (as described in Section 4.06) until the Security Deposit is replenished as described in this Section 4.08, (b) Lessee shall replenish the Security Deposit, in the manner set forth herein. If Lessee shall fully and faithfully comply with all of the terms, provisions, covenants and conditions of this Lease, the Security Deposit, or any balance thereof, shall be returned to Lessee after the time fixed as the expiration of the Lease Term and after the surrender of possession of the Property to Lessor. Whenever and as often as the amount of the Security Deposit held by Lessor shall be diminished by Lessor’s application thereof, Lessee shall, within ten (10) days after Lessor’s request therefor, deposit additional money with Lessor sufficient to restore the Security Deposit as set forth in this Section 4.08. Lessee shall not be entitled to any interest on the Security Deposit except as provided otherwise pursuant to applicable law. In the absence of evidence satisfactory to Lessor of an assignment of the right to receive the Security Deposit, or the remaining balance thereof, Lessor may return the security to the original Lessee, regardless of one or more assignments of this Lease. In case of a sale or transfer of the fee of the Property, or any cessation of Lessor’s interest therein, whether in whole or in part, Lessor shall pay over any unapplied part of the Security Deposit to the succeeding owner of the Property and from and after such payment Lessor shall be relieved of all liability with respect thereto. The provisions of the preceding sentence shall apply to every subsequent sale or transfer of the fee of the Property, and any successor of Lessor may, upon a sale, transfer or other cessation of the interest of such successor in the Property, whether in whole or in part, pay over any unapplied part of the Security Deposit to the successor owner of the Property and shall thereupon be relieved of all liability with respect thereto. Notwithstanding anything to the contrary, provided no Event of Default exists after all notice and cure periods, the Security Deposit, or any balance thereof, shall be returned to Lessee within thirty (30) days after the termination of this Lease or the expiration of the Lease Term and after the surrender of possession of the Property to Lessor (it being agreed that the Security Deposit shall be promptly used by Lessor to cure any Event of Default existing at such time to the extent that it can be cured with the payment of money and that the remaining balance, if any, being promptly paid to Lessee).

(b) Rental Reserve. Notwithstanding the terms of Section 4.08(a) above, to the extent that (i) the balance of the Security Deposit exceeds the sum of $4,800,000, and (ii) Lessee has a negative monthly EBITDA for the preceding calendar month, Lessee may, upon written notice to Lessor at least three (3) Business Days prior to the applicable payment date of Base Monthly Rental, apply a portion of the Security Deposit to the payment of Base Monthly Rental (and sales tax due on such Base Monthly Rental); provided, however, following any such application of the Security Deposit to the payment of Base Monthly Rental, Lessee shall replenish the Security Deposit by monthly payments in an amount equal to Lessee’s positive EBITDA minus Capital Replacement Reserve Funds for a calendar month (if any), with such payments being due within three (3) Business Days following of the end of the applicable calendar month. In the event that Lessee elects to apply the Security Deposit under this subsection, Lessee shall, within three (3) Business Days of the end of each month, provide Lessor with monthly statement of operations (which shall set forth the profits and losses for the Property) in order to determine if Lessee is required to make any payment to replenish the Security Deposit. In no event shall Lessor be required to apply the Security Deposit to the payment of Base Monthly Rental pursuant to this subsection if the balance of the Security Deposit falls below $4,800,000. For purposes hereof, the term “EBITDA” shall mean for the one (1) calendar month ending on the date of determination, the sum of Lessee’s net income (loss) for such period plus, in each case to the extent previously deducted in calculating net income (loss): (i) income taxes, (ii) interest payments on all of its debt obligations (including any borrowings under short term credit facilities), (iii) all non-cash charges including depreciation and amortization and (iv) non capitalized capital expenditures.

(c) Partial Release of Security Deposit. Notwithstanding the foregoing, the requirement to provide and maintain the Security Deposit under this Section 4.08 shall be modified as follows: if at any time following the PIP Completion, for two (2) consecutive prior twelve month reporting periods of operation (which reporting periods may include periods prior to PIP Completion), Lessee has maintained a CFCCR (defined below) of at least 1.3x, any amount above $4,800,000 of the Security Deposit shall be released to Lessee; provided, however, that such release of the Security Deposit shall be conditioned upon no Event of Default having occurred and be continuing, nor any default having occurred, which, with the delivery of notice and/or the passage of time, could result in an Event of Default.

For purposes hereof,

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

“CFCCR” means with respect to the twelve month period of time immediately preceding the date of determination, the ratio calculated for such period of time, each as determined in accordance with GAAP, of (i) the sum of Consolidated Net Income (excluding non-cash income), Depreciation and Amortization, Interest Expense, income taxes, Operating Lease Expense and non-cash expenses to (ii) the sum of Operating Lease Expense (excluding non-cash rent adjustments), scheduled principal payments of long term Debt, scheduled maturities of all Finance Leases, dividends and Interest Expense (excluding non-cash interest expense and amortization of non-cash financing expenses). For purposes of calculating the CFCCR, the following terms shall be defined as set forth below:

“Consolidated Net Income” shall mean with respect to the period of determination, the net income or net loss of a Person. In determining the amount of Consolidated Net Income, (i) adjustments shall be made for nonrecurring gains and losses or non-cash items allocable to the period of determination, (ii) deductions shall be made for, among other things, Depreciation and Amortization, Interest Expense, Operating Lease Expense, and (iii) no deductions shall be made for income taxes or charges equivalent to income taxes allocable to the period of determination, as determined in accordance with GAAP.

“Debt” shall mean with respect to a Person, and for the period of determination (i) indebtedness for borrowed money, (ii) subject to the limitation set forth in sub item (v) below, obligations evidenced by bonds, indentures, notes or similar instruments, (iii) obligations under leases which should be, in accordance with GAAP, recorded as Finance Leases, (iv) indebtedness or obligations of a third party utilized to acquire or is secured by any equity in such Person or any assets owned by such Person, and (v) obligations under direct or indirect guarantees in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (i) through (v) above, except for guaranty obligations of such Person, which, in conformity with GAAP, are not included on the balance sheet of such Person.

“Depreciation and Amortization” shall mean the depreciation and amortization accruing during any period of determination with respect to a Person, as determined in accordance with GAAP.

“Finance Lease” shall mean all leases of any property, whether real, personal or mixed, by a Person, which leases would, in conformity with GAAP, be required to be accounted for as a finance lease on the balance sheet of such Person. The term “Finance Lease” shall not include any operating lease.

“Interest Expense” shall mean for any period of determination, the sum of all interest accrued or which should be accrued in respect of all Debt of a Person, as determined in accordance with GAAP.

“Operating Lease Expense” shall mean the sum of all payments and expenses incurred by a Person, under any operating leases during the period of determination, as determined in accordance with GAAP.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

Section 4.09. Capital Replacement Reserves.

(a) Deposits of Capital Replacement Reserve Funds. Lessee will establish with Lessor (or an Affiliate thereof) a deposit account (the “Capital Replacement Reserve Account”) into which Lessee will deposit the Capital Replacement Reserve Funds. During the Lease Term, on or before the tenth (10^th) Business Day of each calendar month (the “Payment Day”), Lessee shall deposit into the Capital Replacement Reserve Account, an amount equal to two percent (2%) for the first two (2) years of the Lease Term, three percent (3%) for the third (3^rd) year of the Lease Term and then four percent (4%) for the fourth (4^th) year of the Lease Term and every year thereafter, of the Gross Revenue of the Property for the month that ended prior to such Payment Day. Amounts deposited from time to time into the Capital Replacement Reserve Account pursuant to this Section are referred to herein as the “Capital Replacement Reserve Funds”. In connection herewith, Lessee shall deliver to Lessor a statement of Gross Revenue for the Property Lease contemporaneously with the applicable Capital Replacement Reserve Funds.

(b) Disbursement of Capital Replacement Reserve Funds. Provided no Event of Default is continuing, Lessee shall have the right to withdraw funds from the Capital Replacement Reserve Account subject to the following conditions: (i) Capital Replacement Reserve Funds can only be used to pay for the cost of furniture, fixtures, and equipment for the Property or real property improvements to the Property in accordance with Section 7.02 hereof, all subject to Lessor’s reasonable approval (“Approved Expenditures”); (ii) not less than five (5) Business Days prior to requesting a disbursement of funds from the Capital Replacement Reserve Account, Lessee shall provide Lessor with a written notice of such withdrawal and describe in detail satisfactory to Lessor the Approved Expenditures to be paid with such funds, including copies of invoices for all items or materials being purchased and contractor agreements to complete the relevant work; (iii) Capital Replacement Reserve Funds cannot be withdrawn more often than once per month; (iv) Capital Replacement Reserve Funds shall be disbursed within five (5) Business Days of Lessee’s request and shall be in amounts not less than $10,000.00. Lessee shall provide to Lessor within five (5) Business Days of request, evidence reasonably satisfactory to Lessor (which may include invoices, receipts, cancelled checks, Franchisor property improvement plans, and/or lien waivers) that the Capital Replacement Reserve Funds withdrawn by Lessee were used to pay the Approved Expenditures or reimburse Lessee’s direct payment of any Approved Expenditures described in Lessee’s notice to Lessor. Furthermore, in the event that the Approved Expenditures involve real property improvements or Lessor reasonably determines that the nature of the Approved Expenditures require additional conditions for disbursement, Lessee and Lessor (of an Affiliate thereof) shall enter into a Capital Reserve Disbursement Agreement for the disbursement of such funds. Lessor may, in its sole discretion, determine to disburse Capital Replacement Reserve Funds jointly to Lessee and any general contractor, subcontractors or suppliers or directly to any general contractor, subcontractors or suppliers, rather than directly to Lessee, and the execution of this Agreement by Lessee shall, and hereby does, constitute an irrevocable direction and authorization to Lessor to so disburse the funds. Lessor shall not be obligated to make disbursements or cause disbursements to be made from the Capital Replacement Reserve Fund to reimburse Lessee for the costs of routine maintenance to the Property. Return of Capital Replacement Reserve Funds. Subject to the terms below in connection with an Event of Default, the Capital Replacement Reserve Funds, or any balance thereof, shall be returned to Lessee within thirty (30) days after the termination of this Lease or the expiration of the Lease Term and after the surrender of possession of the Property to Lessor. If an Event of Default exists and is continuing, Lessor may (only to the extent that the Security Deposit has been used in its entirety), but shall not be required to, use, apply or retain the whole or any part of the Capital Replacement Reserve Funds for the payment of any Monetary Obligation (including Rental) in default or for any other sum which Lessor may expend or be required to expend by reason of such Event of Default, including any damages or deficiency in the reletting of the Property, whether such damages or deficiency accrue before or after summary proceedings or other re-entry by Lessor. Lessee shall not be entitled to any interest on the Capital Replacement Reserve Funds except as provided otherwise pursuant to applicable Law. In the absence of evidence satisfactory to Lessor of an assignment of the right to receive the Capital Replacement Reserve Funds, or the remaining balance thereof, Lessor may return the security to the original Lessee, regardless of one or more assignments of this Lease. In case of a sale or transfer of the fee of the Property, or any cessation of Lessor’s interest therein, whether in whole or in part, Lessor shall pay over any unapplied part of the Capital Replacement Reserve Funds to the succeeding owner of the Property and from and after such payment Lessor shall be relieved of all liability with respect thereto. The provisions of the preceding sentence shall apply to every subsequent sale or transfer of the fee of the Property, and any successor of Lessor may, upon a sale, transfer or other cessation of the interest of such successor in the Property, whether in whole or in part, pay over any unapplied part of the Capital Replacement Reserve Funds to the successor owner of the Property and shall thereupon be relieved of all liability with respect thereto. Notwithstanding anything to the contrary, provided no Event of Default exists after all notice and cure periods, the Capital Replacement Reserve and any other reserves or deposits held by Lessor, or any balance thereof, shall be returned to Lessee within thirty (30) days after the termination of this Lease or the expiration of the Lease Term and after the surrender of possession of the Property to Lessor (it being agreed that, subject to the terms of this Section 4.09(c), the Capital Replacement Reserve shall be promptly used by Lessor to cure any Event of Default existing at such time to the extent that it can be cured with the payment of money and that the remaining balance, if any, being promptly paid to Lessee).

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

Section 4.10. Guaranty. On or before the execution of this Lease, Lessee shall cause Guarantor to execute and deliver to Lessor the Guaranty.

ARTICLE V

Representations and Warranties of Lessee

The representations and warranties of Lessee contained in this Article V are being made to induce Lessor to enter into this Lease, and Lessor has relied upon such representations and warranties. Lessee represents and warrants to Lessor, to Lessee’s Knowledge as of the Effective Date and, subject to Section 14.02, upon assignment of this Lease by Lessee, as follows:

Section 5.01. Organization, Authority and Status of Lessee. Lessee has been duly organized or formed, is validly existing and in good standing under the laws of its state of formation and is qualified as a foreign corporation to do business in any jurisdiction where such qualification is required. All necessary corporate and appropriate action has been taken to authorize the execution, delivery and performance by Lessee of this Lease and of the other documents, instruments and agreements provided for herein. Lessee is not, and if Lessee is a “disregarded entity,” the owner of such disregarded entity is not, a “nonresident alien,” “foreign corporation,” “foreign partnership,” “foreign trust,” “foreign estate,” or any other “person” that is not a “United States Person” as those terms are defined in the Code and the regulations promulgated thereunder. The Person who has executed this Lease on behalf of Lessee is duly authorized to do so.

Section 5.02. Enforceability. This Lease constitutes the legal, valid and binding obligation of Lessee, enforceable against Lessee in accordance with its terms.

Section 5.03. Litigation. There are no suits, actions, proceedings or investigations pending, or to the best of its knowledge, threatened against or involving any Lessee Entity or the Property before any arbitrator or Governmental Authority which might reasonably result in any Material Adverse Effect.

Section 5.04. Absence of Breaches or Defaults. To Lessee’s Knowledge, Lessee is not in default under any document, instrument or agreement to which Lessee is a party or by which Lessee, the Property or any of Lessee’s property is subject or bound, which has had, or could reasonably be expected to result in, a Material Adverse Effect. The authorization, execution, delivery and performance of this Lease and the documents, instruments and agreements provided for herein will not result in any breach of or default under any document, instrument or agreement to which Lessee is a party or by which Lessee, the Property or any of Lessee’s property is subject or bound, which could reasonably be expected to result in a Material Adverse Effect.

Section 5.05. Compliance with OFAC Laws. None of the Lessee Entities, and no individual or entity owning directly or indirectly any interest in any of the Lessee Entities, is an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws or is otherwise in violation of any of the OFAC Laws; provided, however, that the representation contained in this sentence shall not apply to any Person to the extent such Person’s interest is in or through a U.S. Publicly Traded Entity.

Section 5.06. Solvency. There is no contemplated, pending or threatened Insolvency Event or similar proceedings, whether voluntary or involuntary, affecting Lessee or any Lessee Entity.

Section 5.07. Ownership. Based solely on the list set forth in the attached Schedule 5.07 provided by Lessor as of the Effective Date, to the best of Lessee’s knowledge, none of (i) Lessee, (ii) any Affiliate of Lessee, or (iii) any Person owning ten percent (10%) or more of Lessee, owns, directly or indirectly, ten percent (10%) or more of the total voting power or total value of capital stock in STORE Capital Corporation.

Section 5.08. Franchise Agreement. Lessee has provided Lessor with a true, correct and complete copy of the Franchise Agreement. At Lessor’s request from time to time, Lessee shall deliver to Lessor a fully executed, complete copy of the Franchise Agreement. The Franchise Agreement is in full force and effect, the entire interest of the franchisee thereunder is owned by Lessee, and such interest has not been assigned, transferred, mortgaged, or otherwise encumbered other than pursuant to any lien granted herein. No notice of default from Franchisor has been received by Lessee with respect to either Franchise Agreement that has not been cured, and no notice of default to Franchisor has been given that has not been cured. To the best of Lessee’s knowledge, no event has occurred and no condition exists, including with respect to any required remodeling or re-imaging, that, with the giving of notice or the lapse of time or both, would constitute a default under the Franchise Agreement. Lessee is not subject to any property or performance improvement plan or similar requirement other than as set forth under the Franchise Agreement.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

ARTICLE VI

Taxes and Assessments; UTILITIES; INSURANCE

Section 6.01. Taxes.

(a) Payment. Subject to the provisions of Section 6.01(b) below, Lessee shall pay, prior to the earlier of delinquency or the accrual of interest on the unpaid balance, or reimburse Lessor to the extent paid by Lessor, all taxes and assessments of every type or nature assessed against or imposed upon the Property, Lessee or Lessor during the Lease Term related to or arising out of this Lease and the activities of the parties hereunder, including without limitation, (i) all taxes or assessments upon the Property or any part thereof and upon any personal property, trade fixtures and improvements located on the Property, whether belonging to Lessor or Lessee, or any tax or charge levied in lieu of such taxes and assessments; (ii) all taxes, charges, license fees and or similar fees imposed by reason of the use of the Property by Lessee; (iii) all excise, franchise, transaction, privilege, license, sales, use and other taxes upon the Rental or other Monetary Obligations hereunder or the leasehold estate. Notwithstanding anything in this Section 6.01, to the contrary, Lessee shall not be obligated to pay or reimburse Lessor for any taxes based on the net income of Lessor, income, franchise, or excise taxes based upon or calculated with respect to net income, net profits, or gross receipts (including rent), and any inheritance, estate, franchise, excise, or net worth tax imposed on Lessor based upon or calculated with respect to Lessor’s interest in the Lease, total assets, net assets or capital stock. Upon written request by Lessor, Lessee shall provide Lessor with evidence reasonably satisfactory to Lessor that all taxes and assessments have been timely paid by Lessee.

(b) Noticed of Tax Bills; Right to Contest. In the event Lessor receives a tax bill or other notice from a Governmental Authority, Lessor shall forward said bill or notice to Lessee within fifteen (15) days of Lessor’s receipt thereof. Lessee may, at its own expense, contest or cause to be contested (in the case of any item involving more than $10,000, after prior written notice to Lessor, which shall be given within fifteen (15) days of Lessee’s determination to contest any matter as permitted herein), by appropriate legal proceedings conducted in good faith and with due diligence, any above-described item or lien with respect thereto, provided that (i) neither the Property nor any interest therein would be in any danger of being sold, forfeited or lost by reason of such proceedings; (ii) no Event of Default has occurred and is continuing; (iii) if and to the extent required by the applicable taxing authority and/or Lessor, Lessee posts a bond or takes other steps acceptable to such taxing authority and/or Lessor that removes such lien or stays enforcement thereof; (iv) Lessee shall promptly provide Lessor with copies of all notices received or delivered by Lessee and filings made by Lessee in connection with such proceeding; and (v) upon termination of such proceedings, it shall be the obligation of Lessee to pay the amount of any such tax and assessment or part thereof as finally determined in such proceedings, the payment of which may have been deferred during the prosecution of such proceedings, together with any costs, fees (including attorneys’ fees and disbursements), interest, penalties or other liabilities in connection therewith. Lessor shall direct and authorize Governmental Authorities to communicate with and send notices to Lessee with respect to taxes assessed against the Property, and at the request of Lessee, cooperate with Lessee and execute or join in the execution of any instruments or documents necessary in connection with any such contest or proceedings, but Lessor shall be not be required to incur any obligations and shall be reimbursed by Lessee for any Costs incurred by Lessor in connection therewith.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

Section 6.02. Utilities. Lessee shall contract, in its own name, for and pay when due all charges for the connection and use of water, gas, electricity, telephone, garbage collection, sewer use and other utility services supplied to the Property during the Lease Term. Under no circumstances shall Lessor be responsible for any interruption of any utility service.

Section 6.03. Insurance.

(a) Coverage. Throughout the Lease Term, Lessee shall maintain, with respect to the Property, at its sole expense, the following types and amounts of insurance, in addition to such other insurance as Lessor may reasonably require from time to time:

(i) Insurance against loss or damage to real property and personal property under an “all risk” or “special form” insurance policy, which shall include coverage against all risks of direct physical loss, including but not limited to loss by fire, lightning, wind, terrorism, and other risks normally included in the standard ISO special form (and shall also include National Flood in the amount of $500,000 per building on that part of the Property which is located in Flood Zone A, AE or Flood Zone V, as designated by FEMA, or otherwise located in a flood zone area identified by FEMA as a 100-year flood zone or special hazard area and Excess Flood if so determined, and earthquake insurance if the Property is located within a moderate to high earthquake hazard zone as determined by an approved insurance company set forth in Section 6.03(b)(x) below). Such policy shall also include soft costs, a joint loss agreement, coverage for ordinance or law covering the loss of value of the undamaged portion of the Property, costs to demolish and the increased costs of construction if any of the improvements located on, or the use of, the Property shall at any time constitute legal non-conforming structures or uses. Ordinance or law limits shall be in an amount equal to the full replacement cost for the loss of value of the undamaged portion of the Property and no less than $5,000,000for costs to demolish and the increased cost of construction, or in an amount otherwise reasonably specified by Lessor. Such insurance shall be in amounts not less than $30,000,000 for wind damage and $101,000,000 for all perils , with an agreed amount endorsement or without any coinsurance provision, and with sublimits satisfactory to Lessor, as reasonably determined from time to time at Lessor’s request but not more frequently than once in any 12-month period.

(ii) Commercial general liability insurance, including products and completed operation liability, covering Lessor and Lessee against bodily injury liability, property damage liability and personal and advertising injury, liquor liability coverage, including without limitation any liability arising out of the ownership, maintenance, repair, condition or operation of the Property or adjoining ways, streets, parking lots or sidewalks. Such insurance policy or policies shall contain a broad form contractual liability endorsement under which the insurer agrees to insure Lessee’s obligations under Article X hereof to the extent insurable, and a “severability of interest” clause or endorsement which precludes the insurer from denying the claim of Lessee or Lessor because of the negligence or other acts of the other, shall be in amounts of not less than $10,000,000 per occurrence for bodily injury and property damage, and $10,000,000 general aggregate per location, or such higher limits as Lessor may reasonably require from time to time, and shall be of form and substance satisfactory to Lessor. Such limits of insurance can be acquired through Commercial General liability and Umbrella liability policies.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

(iii) Workers’ compensation and Employers Liability insurance with statutorily mandated limits covering all persons employed by Lessee on the Property in connection with any work done on or about the Property for which claims for death or bodily injury could be asserted against Lessor, Lessee or the Property.

(iv) Business interruption insurance including Rental Value Insurance payable to Lessee at all locations for a period of not less than twelve (12) months. Such insurance is to follow the form of the real property “all risk” or “special form” coverage and is not to contain a co-insurance clause. Such insurance is to have a minimum of 180 days of extended period of indemnity.

(v) Automobile liability insurance, including owned, non-owned and hired car liability insurance for combined limits of liability of $4,000,000 per occurrence. The limits of liability can be provided in a combination of an automobile liability policy and an umbrella liability policy.

(vi) Comprehensive Boiler and Machinery or Equipment Breakdown Insurance against loss or damage from explosion of any steam or pressure boilers or similar apparatus, if any, and other building equipment including HVAC units located in or about the Property and in an amount equal to the lesser of 25% of the 100% replacement cost of the Property or $5,000,000.

(vii) Such additional and/or other insurance and in such amounts as at the time is customarily carried by prudent owners or tenants with respect to improvements and personal property similar in character, location and use and occupancy to the Property.

(b) Insurance Provisions. All insurance policies shall:

(i) provide for a waiver of subrogation by the insurer as to claims against Lessor, its employees and agents;

(ii) be primary and provide that any “other insurance” clause in the insurance policy shall exclude any policies of insurance maintained by Lessor and the insurance policy shall not be brought into contribution with insurance maintained by Lessor;

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

(iii) contain deductibles not to exceed $25,000;

(iv) contain a standard non-contributory mortgagee clause or endorsement in favor of any Lender designated by Lessor;

(v) provide that the policy of insurance shall not be terminated, cancelled or amended without at least thirty (30) days’ prior written notice, or in case of cancellation for non-payment, ten (10) days’ prior written notice, to Lessor and to any Lender covered by any standard mortgagee clause or endorsement;

(vi) Intentionally deleted;

(vii) be in amounts sufficient at all times to satisfy any coinsurance requirements thereof;

(viii) except for workers’ compensation insurance referred to in Section 6.03(a)(iii) above, name Lessor and any Lessor Affiliate or Lender requested by Lessor, as an “additional insured” with respect to liability insurance, and as an “additional named insured” or “additional insured” with respect to real property and rental value insurance, as appropriate and as their interests may appear;

(ix) be evidenced by delivery to Lessor and any Lender designated by Lessor of an Acord Form 28 for property, business interruption and boiler & machinery coverage (or any other form requested by Lessor) and an Acord Form 25 for commercial general liability, workers’ compensation and umbrella coverage (or any other form requested by Lessor); provided that in the event that either such form is no longer available, such evidence of insurance shall be in a form reasonably satisfactory to Lessor and any Lender designated by Lessor; and

(x) be issued by insurance companies licensed to do business in the state where the Property is located and which are rated no less than A-VII by Best’s Insurance Guide or are otherwise approved by Lessor, which approval shall not be unreasonably withheld.

(c) Additional Obligations. It is expressly understood and agreed that (i) if any insurance required hereunder, or any part thereof, shall expire, be withdrawn, become void by breach of any condition thereof by Lessee, or become void or in jeopardy by reason of the failure or impairment of the capital of any insurer, Lessee shall promptly obtain new or additional insurance reasonably satisfactory to Lessor and any Lender designated by Lessor; (ii) the minimum limits of insurance coverage set forth in this Section 6.03 shall not limit the liability of Lessee for its acts or omissions as provided in this Lease; (iii) Lessee shall procure policies for all insurance for periods of not less than one year and shall provide to Lessor and any servicer or Lender of Lessor certificates of insurance or, upon Lessor’s request, duplicate originals of insurance policies evidencing that insurance satisfying the requirements of this Lease is in effect at all times; (iv) Lessee shall pay as they become due all premiums for the insurance required by this Section 6.03; (v) in the event that Lessee fails to comply with any of the requirements set forth in this Section 6.03, within twenty (20) days of the giving of written notice by Lessor to Lessee, (A) Lessor shall be entitled to procure such insurance; and (B) any sums expended by Lessor in procuring such insurance shall be Additional Rental and shall be repaid by Lessee, together with interest thereon at the Default Rate, from the time of payment by Lessor until fully paid by Lessee upon written demand therefor by Lessor; and (vi) Lessee shall maintain all insurance policies required in this Section 6.03 not to be cancelled, invalidated or suspended on account of the conduct of Lessee, its officers, directors, managers, members, employees or agents, or anyone acting for Lessee or any subtenant or other occupant of the Property, and shall comply with all policy conditions and warranties at all times to avoid a forfeiture of all or a part of any insurance payment.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

(d) Blanket Policies. Notwithstanding anything to the contrary in this Section 6.03, any insurance which Lessee is required to obtain pursuant to this Section 6.03 may be carried under a “blanket” policy or policies covering other properties or liabilities of Lessee provided that such “blanket” policy or policies otherwise comply with the provisions of this Section 6.03.

Section 6.04. Tax Impound. Upon the occurrence and during the continuation of an Event of Default, in addition to any other remedies, Lessor may require Lessee to pay to Lessor on the first day of each month the amount that Lessor reasonably estimates will be necessary in order to accumulate with Lessor sufficient funds in an impound account (which shall not be deemed a trust fund) (the “Reserve”) for Lessor to pay any and all real estate taxes (“Real Estate Taxes”) for the Property for the ensuing twelve (12) months, or, if due sooner, Lessee shall pay the required amount promptly upon Lessor’s demand therefor. Lessor shall, upon prior written request of Lessee, provide Lessee with evidence reasonably satisfactory to Lessee that payment of the Real Estate Taxes was made in a timely fashion. In the event that the Reserve does not contain sufficient funds to timely pay any Real Estate Taxes, upon Lessor’s written notification thereof, Lessee shall, within five (5) Business Days of such notice, provide funds to Lessor in the amount of such deficiency. Lessor shall pay or cause to be paid directly to the applicable taxing authorities any Real Estate Taxes then due and payable for which there are funds in the Reserve; provided, however, that in no event shall Lessor be obligated to pay any Real Estate Taxes in excess of the funds held in the Reserve, and Lessee shall remain liable for any and all Real Estate Taxes, including fines, penalties, interest or additional costs imposed by any taxing authority (unless incurred as a result of Lessor’s failure to timely pay Real Estate Taxes for which it had funds in the Reserve). Lessee shall cooperate fully with Lessor in assuring that the Real Estate Taxes are timely paid. Lessor may deposit all Reserve funds in accounts insured by any federal or state agency and may commingle such funds with other funds and accounts of Lessor. Interest or other gains from such funds, if any, shall be the sole property of Lessor. Upon an Event of Default, in addition to any other remedies, Lessor may apply all impounded funds in the Reserve against any sums due from Lessee to Lessor. Lessor shall give to Lessee an annual accounting showing all credits and debits to and from such impounded funds received from Lessee. In case of a sale or transfer of the fee of the Property, or any cessation of Lessor’s interest therein, whether in whole or in part, Lessor shall pay over any unapplied part of the Reserve to the succeeding owner of the Property and from and after such payment Lessor shall be relieved of all liability with respect thereto.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

ARTICLE VII

MAINTENANCE; ALTERATIONS

Section 7.01. Condition of Property; Maintenance. Lessee hereby accepts the Property “AS IS” and “WHERE IS” with no representation or warranty of Lessor as to the condition thereof. Lessee shall, at its sole cost and expense, be responsible for (a) keeping all of the building, structures and improvements erected on the Property in good order and repair, free from actual or constructive waste subject to Casualty and Section 17.01; (b) subject to Section 17.01, the repair or reconstruction of any building, structures or improvements erected on the Property damaged or destroyed by a Casualty; (c) subject to Section 7.02 and Section 17.01, making all necessary structural, non-structural, exterior and interior repairs and replacements to any building, structures or improvements erected on the Property; (d) subject to Section 17.01, operating, remodeling, updating and modernizing the Property in accordance with those standards adopted from time to time on a system-wide basis for the Permitted Facility or in accordance with any property or performance improvement plan under the Franchise Agreement; (e) (i) ensuring that no party encroaches upon the Property, except to the extent disclosed on Lessor’s title policy received by Lessor on or about the Effective Date, (ii) protecting, defending, indemnifying, releasing and holding the Indemnified Parties harmless from and against any and all claims and Losses arising out of or in any way relating to any encroachments and/or activities upon the Property caused by any Person, except to the extent resulting from the gross negligence or willful misconduct of the Indemnified Parties; and (iii) prosecuting any claims that Lessee seeks to bring against any Person relating to Lessee’s use and possession of the Property; and (f) paying all operating costs of the Property in the ordinary course of business. Lessee waives any right to require Lessor to maintain, repair or rebuild all or any part of the Property or make repairs at the expense of Lessor pursuant to any Legal Requirements at any time in effect.

Section 7.02. Alterations and Improvements. During the Lease Term, Lessee shall not alter the exterior, structural, plumbing or electrical elements of the Property in any manner without the consent of Lessor, which consent shall not be unreasonably withheld or conditioned; provided, however, Lessee may undertake nonstructural alterations to the Property, individually, costing less than $250,000 without Lessor’s prior written consent. If Lessor’s consent is required hereunder and Lessor consents to the making of any such alterations, the same shall be made by Lessee at Lessee’s sole expense by a licensed contractor and according to plans and specifications approved by Lessor and subject to such other conditions as Lessor shall reasonably require. Any work at any time commenced by Lessee on the Property shall be prosecuted diligently to completion, shall be of good workmanship and materials and shall comply fully with all the terms of this Lease and all Legal Requirements. Upon completion of any alterations individually costing $250,000 or more, Lessee shall promptly provide Lessor with evidence of full payment to all laborers and materialmen contributing to the alterations. Additionally, upon completion of any alterations, Lessee shall promptly provide Lessor with (a) an architect’s certificate certifying the alterations to have been completed in conformity with the plans and specifications (if the alterations are of such a nature as would require the issuance of such a certificate from the architect); (b) a certificate of occupancy (if the alterations are of such a nature as would require the issuance of a certificate of occupancy); and (c) any other documents or information reasonably requested by Lessor. Lessee shall keep the Property free from any liens arising out of any work performed on, or materials furnished to, the Property. Lessee shall execute and file or record, as appropriate, a “Notice of Non-Responsibility,” or any equivalent notice permitted under applicable Law in the state where the Property is located which provides that Lessor is not responsible for the payment of any costs or expenses relating to the additions or alterations. Any addition to or alteration of the Property shall be deemed a part of the Property and belong to Lessor, and Lessee shall execute and deliver to Lessor such instruments as Lessor may be required to evidence the ownership by Lessor of such addition or alteration.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

Section 7.03. Encumbrances. During the Lease Term, Lessor shall not have the right to grant easements on, over, under and above the Property without the prior consent of Lessee, such consent not to be unreasonably withheld, conditioned or delayed. Lessee shall comply with and perform all obligations of Lessor under all easements, declarations, covenants, restrictions and other items of record now or hereafter encumbering the Property. Lessee shall not grant any easements on, over, under or above the Property or in any way bind Lessor without Lessor’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Lessor and Lessee shall use good faith and commercially reasonable efforts to negotiate and enter into any easements, licenses, rights-of-way, and other rights and privileges in the nature of easements, each as and when reasonably requested by Lessee in connection with the operations of the Permitted Facility and Lessor shall have any Mortgagee join in the consent (and if necessary, subordination of its lien) to such document.

ARTICLE VIII

Use of the Property; Compliance

Section 8.01. Use. During the Lease Term, the Property shall be used solely for the operation of a Permitted Facility. Except during periods when the Property is untenantable due to Casualty or Condemnation (and provided that Lessee continues to comply with the other terms and conditions of this Lease), Lessee shall at all times during the Lease Term occupy the Property and shall diligently operate its business on the Property. In the event that Lessee shall change the use of the Property or the concept or brand operated on the Property, only as may be expressly permitted herein or consented to by Lessor in writing, such consent not to be unreasonably withheld, conditioned or delayed, Lessee shall provide Lessor with written notice of any such change and a copy of the franchise agreement(s) related to such new concept or brand, if any.

Section 8.02. Compliance. Lessor shall promptly (and in any event within fifteen (15) days of receipt thereof) provide Lessee with copies of any notices, bills, correspondence or similar documents or reports received from any Governmental Authority relating to the Property, the Permitted Facility, Lessee or this Lease. Lessee’s use and occupation of the Property, and the condition thereof, shall, at Lessee’s sole cost and expense, comply with all Legal Requirements and all restrictions, covenants and encumbrances of record, and any owner obligations under such Legal Requirements, or restrictions, covenants and encumbrances of record, with respect to the Property, in either event, the failure with which to comply could have a Material Adverse Effect. Without in any way limiting the foregoing provisions, Lessee shall comply with all Legal Requirements relating to anti-terrorism, trade embargos, economic sanctions, Anti-Money Laundering Laws, and the Americans with Disabilities Act of 1990, as such act may be amended from time to time, and all regulations promulgated thereunder, as it affects the Property now or hereafter in effect. Lessee shall obtain, maintain and comply with all required licenses and permits, both governmental and private, to use and operate the Property as a Permitted Facility. Upon Lessor’s written request from time to time during the Lease Term, Lessee shall certify in writing to Lessor that to Lessee’s Knowledge Lessee’s representations, warranties and obligations under Section 5.05 and this Section 8.02 remain true and correct in all material respects and have not been breached; provided, however, that if Lessee cannot provide such certification because the representation would not be true, Lessee shall provide the certificate with a schedule of any qualifications and in the event such qualification reflects a breach of Lessee’s obligations under this Lease, Lessee shall cure such breach subject to the notice and cure rights set forth in Section 12.01. Lessee shall with reasonable promptness notify Lessor in writing if any of such representations, warranties or covenants are no longer true or have been breached to Lessee’s Knowledge. In connection with such an event, Lessee shall comply with all Legal Requirements and directives of Governmental Authorities and, at Lessor’s request, provide to Lessor copies of all notices, reports and other communications exchanged with, or received from, Governmental Authorities relating to such an event. Lessee shall also reimburse Lessor for all Costs incurred by Lessor in evaluating the effect of such an event on the Property and this Lease, in obtaining any necessary license from Governmental Authorities as may be necessary for Lessor to enforce its rights under the Transaction Documents, and in complying with all Legal Requirements applicable to Lessor as the result of the existence of such an event and for any penalties or fines imposed upon Lessor as a result thereof. Lessee will use its commercially reasonable efforts to prevent any act or condition to exist on or about the Property (present use excepted) that will materially increase any insurance rate thereon, except when such acts are required in the normal course of its business and Lessee shall pay for such increase. Lessee agrees that it will defend, indemnify and hold harmless the Indemnified Parties from and against any and all Losses caused by, incurred or resulting from Lessee’s failure to comply with its obligations under this Section, except to the extent resulting from the gross negligence or willful misconduct of any of the Indemnified Parties.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

Section 8.03. Environmental.

(a) Covenants.

(i) Lessee covenants to Lessor during the Lease Term, subject to the limitations of subsection (ii) below, as follows:

(A) All uses and operations on or of the Property, whether by Lessee or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto.

(B) There shall be no Releases caused by or at the direction of Lessee in, on, under or from the Property, except in Permitted Amounts.

(C) Lessee shall use commercially reasonable efforts to ensure there shall be no Releases by any Person in, on, under or from the Property, except in Permitted Amounts

(D) There shall be no Hazardous Materials or Regulated Substances in, on or under the Property, except in Permitted Amounts. Above and below ground storage tanks shall be properly permitted and only used as permitted.

(E) Lessee shall keep the Property or cause the Property to be kept free and clear of all Environmental Liens, whether due to any act or omission of Lessee or any other Person.

(F) Lessee shall not act or fail to act or allow any other tenant, occupant, guest, customer or other user of the Property to act or fail to act in any way that (1) materially increases a risk to human health or the environment, (2) poses an unreasonable or unacceptable risk of harm to any Person or the environment (whether on or off the Property), (3) has a Material Adverse Effect, (4) is contrary to any material requirement set forth in the insurance policies maintained by Lessee or Lessor , (5) constitutes a public or private nuisance or constitutes waste, (6) violates any Environmental Law, or (7) would result in any reopening or reconsideration of any prior investigation or causes a new investigation by a Governmental Authority having jurisdiction over the Property in connection with environmental matters.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

(G) Lessee shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to this Section 8.03, including but not limited to providing all relevant information and making knowledgeable persons available for interviews.

(ii) Notwithstanding any provision of this Lease to the contrary, an Event of Default shall not be deemed to have occurred as a result of the failure of Lessee to satisfy any one or more of the covenants set forth in subsections (A) through (E) above provided that Lessee shall be in compliance with the requirements of any Governmental Authority with respect to the Remediation of any Release at the Property.

(b) Notification Requirements. Lessee shall with reasonable promptness notify Lessor in writing upon Lessee obtaining actual knowledge of (i) any Releases or Threatened Releases in, on, under or from the Property other than in Permitted Amounts, or migrating towards the Property; (ii) any non-compliance with any Environmental Laws related in any way to the Property; (iii) any actual or potential Environmental Lien or activity use limitation; (iv) any required or proposed Remediation of environmental conditions relating to the Property required by applicable Governmental Authorities; and (v) any written notice or other written communication received by Lessee from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials, Regulated Substances or above or below ground storage tanks, or Remediation thereof at or on the Property, other than in Permitted Amounts, possible liability of any Person relating to the Property pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section. Lessee shall, upon Lessor’s written request, deliver to Lessor a certificate stating that Lessee, to Lessee’s knowledge with a reasonable duty of inquiry, is and has been in full compliance with all of the environmental representations, warranties and covenants in this Lease; provided, however, that if Lessee cannot provide such certification because the representation would not be true, Lessee shall provide the certificate with a schedule of any qualifications and in the event such qualification reflects a breach of Lessee’s obligations under this Lease, Lessee shall promptly cure such breach subject to the notice and cure rights set forth in Section 12.01.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

 

(c) Remediation. Lessee shall, at its sole cost and expense, and without limiting any other provision of this Lease, effectuate any Remediation required by any Governmental Authority of any condition (including, but not limited to, a Release or Threatened Release) in, on, under or from the Property and take any other reasonable action deemed necessary by any Governmental Authority for protection of human health or the environment. Should Lessee fail to undertake any required Remediation in accordance with the preceding sentence, Lessor, after written notice to Lessee and Lessee’s failure to promptly undertake such Remediation, shall be permitted to complete such Remediation, and all Costs incurred in connection therewith shall be paid by Lessee. Any Cost so paid by Lessor, together with interest at the Default Rate, shall be deemed to be Additional Rental hereunder and shall be immediately due from Lessee to Lessor.

(d) Indemnification. Lessee shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties from and against any and all Losses (excluding Losses resulting from the gross negligence or willful misconduct of the Indemnified Parties), including, but not limited to, all Costs of Remediation (whether or not performed voluntarily), arising out of or in any way relating to any Environmental Laws, Hazardous Materials, Regulated Substances, above or below ground storage tanks, or other environmental matters concerning the Property. It is expressly understood and agreed that Lessee’s obligations under this Section shall survive the expiration or earlier termination of this Lease for any reason.

(e) Right of Entry. In the event that Lessor has a reasonable basis to believe that a Release or a violation of any Environmental Law has occurred, Lessor and any other Person designated by Lessor, including but not limited to any receiver, any representative of a Governmental Authority, and any environmental consultant, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lessor’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Lessee shall cooperate with and provide access to Lessor and any other Person designated by Lessor. Any such assessment or investigation shall be at Lessee’s sole cost and expense.

(f) Survival. The obligations of Lessee and the rights and remedies of Lessor under this Section 8.03 shall survive the termination, expiration and/or release of this Lease.

Section 8.04. Franchisor Requirements. Lessee will timely comply with and perform all of its obligations under the Franchise Agreement, including all remodeling and re-imaging obligations, and will give Lessor prompt written notice of the occurrence of any default by Lessee or Franchisor under the Franchise Agreement and of any notice of default given to Lessee by Franchisor. Lessee will send Lessor copies of all notices given by Lessee to Franchisor concurrently with the giving of such notices to Franchisor. Lessee will keep a Franchise Agreement in full force and effect at all times during the Lease Term unless otherwise consented to by Lessor, such consent not to be unreasonably withheld, conditioned or delayed. Lessee shall promptly notify Lessor in the event that the Properties becomes subject to any property or performance improvement plan, and Lessee shall provide such information with respect to such plan as Lessor may require, including the expected expenses, required reserves and compliance requirements. If at any time an Event of Default exists or Lessor receives notice from Franchisor of a default by Licensee under the Franchise Agreement, Lessee hereby consents to Lessor providing information it obtains to Franchisor, and to Lessor obtaining from Franchisor information which Franchisor receives relating to Lessee’s operation of its business on the Properties. Lessee shall not: (a) agree to any Franchise Agreement amendment that could reasonably be expected to materially and adversely affect (i) the rights and privileges of the franchisee thereunder; or (ii) the rights, privileges, and remedies of Lessor hereunder; or (b) assign, transfer, mortgage, pledge or otherwise encumber the Franchise Agreement or any interest therein to any Person other than Lessor, except in connection with an assignment permitted under Section 14.02 and 14.03. Lessee will send Lessor a copy of all Franchise Agreement amendments, modifications, restatements or new Franchise Agreement promptly following execution thereof by all parties thereto.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

 

Section 8.05. Property Management. Lessee represents and warrants to Lessor that Lessee is a party to a management agreement with Our Town Hospitality LLC d/b/a OTH Hotels Resorts in respect to the operations of the Permitted Facility at the Property. Lessee will keep the Management Agreement in full force and effect at all times . Lessee shall not enter into any Management Agreement with respect to the Permitted Facility (i) without Lessor’s prior written consent as to the proposed manager (unless such manager is pre-approved within the definition of Manager) and the form of management agreement, which consent shall not be unreasonably withheld, conditioned or delayed, and (ii) without the required consent of Franchisor. Lessee agrees to the following terms regarding the Management Agreement:

(a) Lessee shall timely comply with and perform all obligations under the Management Agreement and will give Lessor prompt written notice of the occurrence of any default by any party under the Management Agreement;

(b) Lessee shall give Lessor prompt written notice of any bankruptcy filing by or against Manager under the Management Agreement; and

(c) Lessee shall keep a Management Agreement in full force and effect and shall not amend or modify such Management Agreement without the prior written consent of Lessor, which consent shall not be unreasonably withheld, conditioned or delayed; and

(d) Lessee shall not assign, transfer, mortgage, pledge or otherwise encumber the Management Agreement.

ARTICLE IX

additional COVENANTS

Section 9.01. Performance at Lessee’s Expense. Lessee acknowledges and confirms that Lessor may impose reasonable administrative, processing or servicing fees (it being agreed that such administrative, processing and servicing fees shall be reasonable and limited to actual out-of-pocket costs incurred, if any), and collect its reasonable attorneys’ fees, costs and expenses in connection with (a) any extension, renewal, modification, amendment and termination of this Lease requested by Lessee; (b) any release or substitution of Property requested by Lessee; (c) the procurement of consents, waivers and approvals with respect to the Property or any matter related to this Lease requested by Lessee; and (d) the review of any assignment or sublease or proposed assignment or sublease or the preparation or review of any subordination or non-disturbance agreement requested by Lessee.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

Section 9.02. Inspection. Lessor and its authorized representatives shall have the right, at all reasonable times and upon giving reasonable prior notice (except in the event of an emergency, in which case no prior notice shall be required), to enter the Property or any part thereof and inspect the same. Lessor shall use commercially reasonable efforts to avoid interfering with or disturbing the use of the Property and operations thereon by Lessee’s and Lessee’s permitted subtenants, licensees and occupants. Lessee hereby waives any claim for damages for any injury or inconvenience to or interference with Lessee’s business, any loss of occupancy or quiet enjoyment of the Property and any other loss occasioned by such entry, but, subject to Section 10.01, excluding damages arising as a result of the gross negligence or willful misconduct of the Indemnified Parties.

Section 9.03. Financial Information.

(a) Financial Statements. Within forty five (45) days after the end of each fiscal quarter and within one hundred twenty (120) days after the end of each fiscal year of Lessee and Lessee Reporting Entities, Lessee shall deliver to Lessor (i) complete consolidated financial statements that consolidate Lessee and Lessee Reporting Entities, including a balance sheet, statement of operations (which includes profits and losses for the Property) , statement of stockholders’ equity and statement of cash flows and all other related schedules for the fiscal period then ended, such statements to detail separately interest expense, income taxes, non-cash expenses, non-recurring expenses, operating lease expense and current portion of long-term debt – capital leases; (ii) income statements for the business at the Property; and (iii) the supplemental financial information set forth on Schedule 9.03. All such financial statements shall be prepared in accordance with GAAP, and shall be certified to be accurate and complete by an officer or director of each Lessee Reporting Entity. In the event that Lessee’s business at the Property is ordinarily consolidated with other business for financial statements purposes, a separate statement of operations (which includes profits and losses for the Propery) shall be provided showing separately the sales, profits and losses pertaining to the Property with interest expense, income taxes, non-cash expenses, non-recurring expenses and operating lease expense (rent), with the basis for allocation of overhead or other charges being clearly set forth in accordance with Schedule 9.03. The financial statements delivered to Lessor need not be audited, but Lessee shall deliver to Lessor copies of any audited financial statements of the Lessee Reporting Entities which may be prepared, as soon as they are available.

(b) Other Information. Notwithstanding any provision contained herein, upon request at any time, Lessee will provide to Lessor, at no additional cost or expense to Lessee, any and all financial information and/or financial statements of Lessee Reporting Entities (and in the form or forms) as reasonably requested by Lessor including, but not limited to, as requested by Lessor in connection with Lessor’s filings with or disclosures to the Securities and Exchange Commission or other Governmental Authority.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

(c) Hotel Operations. Within five (5) Business Days of the end of each calendar month, Lessee shall deliver to Lessor a Gross Revenue report for the calendar month just ended. Within forty five (45) days after the end of each fiscal quarter and within one hundred twenty (120) days after the end of each fiscal year of Lessee and Lessee Reporting Entities, Lessee shall deliver to Lessor (i) standard hotel data of rooms sold and rooms available for the Property for the fiscal period (shown fiscal year-to-date), as well as Gross Revenue breakdown of room revenue from other revenue for such period, so that occupancy ADR and RevPar statistics for such fiscal period can be calculated; (ii) the Smith Travel Research Reports for the Property for such fiscal period then ended; (iii) copies of the most recent Franchisor quality assurance or inspection reports issued to Lessee; and (iv) all Franchisor royalty billing statements for the Property for such fiscal period then ended (shown fiscal year-to-date, if available). Within ten (10) Business Days of Lessor request, Lessee will deliver to Lessor budgets and projections, including for capital expenditures, for the operation of the Property for the upcoming fiscal year (or other consecutive 12 month period), in form and content reasonably satisfactory to Lessor.

Section 9.04. OFAC Laws. Upon receipt of notice or upon actual knowledge thereof, Lessee shall promptly notify Lessor in writing if any Person owning (directly or indirectly) any interest in any of the Lessee Entities, or any director, officer, shareholder, member, manager or partner of any of such holders is a Person whose property or interests are subject to being blocked under any of the OFAC Laws, or is otherwise in violation of any of the OFAC Laws, or is under investigation by any Governmental Authority for, or has been charged with, or convicted of, drug trafficking, terrorist-related activities or any violation of the Anti-Money Laundering Laws, has been assessed civil penalties under these or related Laws, or has had funds seized or forfeited in an action under these or related Laws; provided, however, that the covenant in this Section 9.04 shall not apply to any Person to the extent such Person’s interest is in or through a U.S. Publicly Traded Entity.

Section 9.05. Estoppel Certificate. At any time, and from time to time, the parties shall, promptly and in no event later than ten (10) Business Days after a written request by the other party, execute, acknowledge and deliver a customary estoppel certificate certifying: (a) that the applicable party has accepted the Property; (b) that this Lease is in full force and effect and has not been modified (or if modified, setting forth all modifications), or, if this Lease is not in full force and effect, the certificate shall so specify the reasons therefor; (c) the commencement and expiration dates of the Lease Term; (d) the date to which the Base Monthly Rental has been paid under this Lease and the amount thereof then payable; (e) whether there are then any existing defaults in the performance of obligations under this Lease, and, if there are any such defaults, specifying the nature and extent thereof; (f) that no notice has been received of any default under this Lease which has not been cured, except as to defaults specified in the certificate; (g) the capacity of the Person executing such certificate, and that such Person is duly authorized to execute the same; (h) that neither Lessor nor any Lender or mortgagee has actual involvement in the management or control of decision making related to the operational aspects or the day-to-day operation of the Property, including any handling or disposal of Hazardous Materials or Regulated Substances; and (i) any other information reasonably requested in connection with a customary estoppel.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

ARTICLE X

RELEASE AND Indemnification

Section 10.01. Release and Indemnification. LESSEE AGREES TO USE AND OCCUPY THE PROPERTY AT ITS OWN RISK AND HEREBY RELEASES LESSOR AND LESSOR’S AGENTS AND EMPLOYEES FROM ALL CLAIMS FOR ANY DAMAGE OR INJURY TO THE FULL EXTENT PERMITTED BY LAW. LESSEE AGREES THAT LESSOR SHALL NOT BE RESPONSIBLE OR LIABLE TO LESSEE OR LESSEE’S EMPLOYEES, AGENTS, CUSTOMERS, LICENSEES OR INVITEES FOR BODILY INJURY, PERSONAL INJURY OR PROPERTY DAMAGE OCCASIONED BY THE ACTS OR OMISSIONS OF ANY OTHER LESSEE OR ANY OTHER PERSON. LESSEE AGREES THAT ANY EMPLOYEE OR AGENT TO WHOM THE PROPERTY OR ANY PART THEREOF SHALL BE ENTRUSTED BY OR ON BEHALF OF LESSEE SHALL BE ACTING AS LESSEE’S AGENT WITH RESPECT TO THE PROPERTY OR ANY PART THEREOF, AND NEITHER LESSOR NOR LESSOR’S AGENTS, EMPLOYEES OR CONTRACTORS SHALL BE LIABLE FOR ANY LOSS OF OR DAMAGE TO THE PROPERTY OR ANY PART THEREOF. LESSEE SHALL INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS EACH OF THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES (EXCLUDING LOSSES SUFFERED BY AN INDEMNIFIED PARTY ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY) CAUSED BY, INCURRED OR RESULTING FROM LESSEE’S OPERATIONS OR BY LESSEE’S USE AND OCCUPANCY OF THE PROPERTY, WHETHER RELATING TO ITS ORIGINAL DESIGN OR CONSTRUCTION, LATENT DEFECTS, ALTERATION, MAINTENANCE, USE BY LESSEE OR ANY PERSON THEREON, SUPERVISION OR OTHERWISE, OR FROM ANY BREACH OF, DEFAULT UNDER, OR FAILURE TO PERFORM, ANY TERM OR PROVISION OF THIS LEASE BY LESSEE, ITS OFFICERS, EMPLOYEES, AGENTS OR OTHER PERSONS. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT LESSEE’S OBLIGATIONS UNDER THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE FOR ANY REASON WHATSOEVER.

ARTICLE XI

Condemnation and Casualty

Section 11.01. Notification. Lessee shall promptly give Lessor written notice of (a) any Condemnation of the Property, (b) the commencement of any proceedings or negotiations which might result in a Condemnation of the Property, and (c) any Casualty to the Property or any part thereof. Such notice shall provide a general description of the nature and extent of such Condemnation, proceedings, negotiations or Casualty, and shall include copies of any documents or notices received in connection therewith. Thereafter, Lessee shall promptly send Lessor copies of all notices, correspondence and pleadings relating to any such Condemnation, proceedings, negotiations or Casualty.

Section 11.02. Total Condemnation. In the event of a Condemnation of all or substantially all of the Property, and if as a result of such Condemnation Lessee determines in the exercise of its good faith business judgment that it can no longer operate the Property as a Permitted Facility as evidenced by Lessee providing to Lessor an officer’s certificate executed by an officer of Lessee certifying to the same (such event, a “Total Condemnation”), as a result of the occurrence of any of the following: (i) access to the Property to and from the publicly dedicated roads adjacent to the Property is permanently and materially impaired such that Lessee no longer has access to such dedicated road; (ii) there is insufficient parking to operate the Property as a Permitted Facility under applicable Laws; or (iii) the Condemnation includes a portion of the building(s) such that the remaining portion is unsuitable for use as a Permitted Facility, then, in such event:

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

(a) Termination of Lease. On the date of the Total Condemnation, the Lease shall terminate; provided, however, that Lessee’s obligations to the Indemnified Parties under any indemnification provisions of this Lease and Lessee’s obligation to pay Rental and all other Monetary Obligations (whether payable to Lessor or a third party) accruing under this Lease prior to the date of termination shall survive such termination. If the date of such Total Condemnation is other than the first day of a month, the Base Monthly Rental for the month in which such Total Condemnation occurs shall be apportioned based on the date of the Total Condemnation.

(b) Net Award. Subject to Section 11.07 below, Lessor shall be entitled to receive the entire Net Award in connection with a Total Condemnation without deduction for any estate vested in Lessee by this Lease, and Lessee hereby expressly assigns to Lessor all of its right, title and interest in and to every such Net Award and agrees that Lessee shall not be entitled to any Net Award or other payment for the value of Lessee’s leasehold interest in this Lease.

Section 11.03. Partial Condemnation or Casualty. In the event of a Condemnation which is not a Total Condemnation (each such event, a “Partial Condemnation”), or in the event of a Casualty:

(a) Net Awards. All Net Awards shall be paid to Lessor.

(b) Continuance of Lease. This Lease shall continue in full force and effect upon the following terms:

(i) All Rental and other Monetary Obligations due under this Lease shall continue unabated.

(ii) Lessee shall use commercially reasonable efforts to commence and diligently prosecute restoration of the Property to substantially the same condition, as nearly as practicable, as prior to the Partial Condemnation or Casualty as reasonably approved by Lessor. Upon the written request of Lessee (accompanied by evidence reasonably satisfactory to Lessor that such amount has been paid or is due and payable and is properly part of such costs, and that Lessee has complied with the terms of Section 7.02 in connection with the restoration), Lessor shall promptly make available in installments, subject to reasonable conditions for disbursement imposed by Lessor, an amount up to but not exceeding the amount of any Net Award received by Lessor with respect to such Partial Condemnation or Casualty. Prior to the disbursement of any portion of the Net Award with respect to a Casualty, Lessee shall provide evidence reasonably satisfactory to Lessor of the payment of restoration expenses by Lessee up to the amount of the insurance deductible applicable to such Casualty. Lessor shall be entitled to keep any portion of the Net Award which may be in excess of the cost of restoration, and Lessee shall bear all additional Costs of such restoration in excess of the Net Award.

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		Lease Agreement
		File No.: 7210/02-926.1

(iii) Notwithstanding anything contained in this Section 11.03 to the contrary, if during the final twelve (12) months of the Initial Term or any Extension Term, if the Property is destroyed or damaged by a Casualty to such an extent that (i) the applicable Property is rendered unsuitable for use as a Permitted Facility, and (ii) the estimated time to rebuild such Property exceeds 180 days from the date of the Casualty, and provided that the damage or destruction is a Casualty fully insured by Lessee as required by this Lease, Lessee may terminate this Lease with respect to such Property by giving notice to Lessor within thirty (30) days after the date of such Casualty. If Lessee elects to terminate this Lease pursuant to this Section 11.03(b)(iii), Lessor shall be entitled to all insurance proceeds paid or payable under the insurance policies required to be maintained by Lessee under this Lease that are attributable to such Property, and Lessee, as a condition to the effectiveness of such termination, on or before the date of termination, (A) shall pay to Lessor the amount of the deductibles under any such insurance policies (the “Casualty Termination Payment”), and (B) execute an agreement, accepted by the insurer, whereby the parties agree that Lessor is the sole party entitled to adjust losses under such insurance policies, that all losses under such insurance policies shall be payable solely to Lessor, and insurer has no defense or offset to the payment of claims under such insurance policies and such insurance policies are in full force and effect. Upon the giving of notice by Lessee to terminate pursuant to this Section 11.03(b)(iii), and Lessee’s payment of the Casualty Termination Payment (if any), any outstanding Monetary Obligation and the prorated portion of all Rental and Monetary Obligations, this Lease shall automatically terminate (except that any obligations which expressly survive any termination of this Lease shall survive) as of the date such notice is received and the Casualty Termination Payment (if any) and other Monetary Obligations are paid.

Section 11.04. Temporary Taking. In the event of a Condemnation of all or any part of the Property for a temporary use (a “Temporary Taking”), this Lease shall remain in full force and effect without any reduction of Base Annual Rental, Additional Rental or any other Monetary Obligation payable hereunder. Except as provided below, Lessee shall be entitled to the entire Net Award for a Temporary Taking, unless the period of occupation and use by the condemning authorities shall extend beyond the date of expiration of this Lease, in which event the Net Award made for such Temporary Taking shall be apportioned between Lessor and Lessee as of the date of such expiration. At the termination of any such Temporary Taking, Lessee will, at its own cost and expense and pursuant to the provisions of Section 7.02, promptly commence and complete restoration of the Property.

Section 11.05. Adjustment of Losses. Any loss under any property damage insurance required to be maintained by Lessee shall be adjusted by Lessor and Lessee. Any Net Award relating to a Total Condemnation or a Partial Condemnation shall be adjusted by Lessor or, at Lessor’s election, Lessee. Notwithstanding the foregoing or any other provisions of this Section 11.05 to the contrary, if at the time of any Condemnation or any Casualty or at any time thereafter an Event of Default shall have occurred and be continuing, Lessor is hereby authorized and empowered but shall not be obligated, in the name and on behalf of Lessee and otherwise, to file and prosecute Lessee’s claim, if any, for a Net Award on account of such Condemnation or such Casualty and to collect such Net Award and apply the same to the curing of such Event of Default and any other then existing Event of Default under this Lease and/or to the payment of any amounts owed by Lessee to Lessor under this Lease, in such order, priority and proportions as Lessor in its discretion shall deem proper.

Section 11.06. Lessee Obligation in Event of Casualty. During all periods of time following a Casualty, Lessee shall take reasonable steps to ensure that the Property is secure and does not pose any risk of harm to any adjoining property and Persons (including owners or occupants of such adjoining property).

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

 

Section 11.07. Lessee Awards and Payments. Notwithstanding any provision contained in this Article XI, Lessee shall be entitled to claim and receive any award or payment from the condemning authority expressly granted for the taking of any personal property owned by Lessee, any insurance proceeds with respect to any personal property owned by Lessee, the interruption of its business and moving expenses (subject, however, to the provisions of Section 6.03(a)(iv) above), but only if such claim or award does not adversely affect or interfere with the prosecution of Lessor’s claim for the Condemnation or Casualty, or otherwise reduce the amount recoverable by Lessor for the Condemnation or Casualty.

ARTICLE XII

Default, Conditional Limitations,

Remedies and Measure of Damages

Section 12.01. Event of Default. Each of the following items in this Section 12.01 (after taking into account any applicable notice and cure periods) shall be an event of default by Lessee under this Lease (each, an “Event of Default”):

(a) if any representation or warranty of Lessee set forth in this Lease is false in any material respect when made, or if Lessee renders any materially false statement or account when made, provided however Lessee shall have a reasonable opportunity (in no event more than thirty (30) days after receipt of written notice by Lessor) to correct any such false representation, warranty, statement or account unless in order to correct such representation or warranty, Lessee needs to first cure the underlying reason for the qualification in which event Lessee shall have such time as my be needed so long as it is diligently pursuing the cure and in the event such qualification is the result of another breach set forth below, then such cure must be completed within the respective cure period set forth below;

(b) if any Rental due under this Lease is not paid when due and such failure continues for more than five (5) Business Days after Lessor gives Lessee notice thereof (provided, however, in no event shall Lessor be required to provide more than two (2) such notices in any given twelve (12) month period); and if any other Monetary Obligation is not paid when due under this Lease and such failure continues for more than ten (10) Business Days after Lessor gives Lessee notice thereof(provided, however, in no event shall Lessor be required to provide more than two (2) such notices in any given twelve (12) month period);

(c) if Lessee fails to pay, prior to delinquency, any taxes, assessments or other charges imposed by a Governmental Authority within thirty (30) days after Lessee’s receipt of notice of such delinquency;

(d) if Lessee vacates or abandons the Property other than temporarily for reconstruction or renovation or as set forth in Section 17.01;

(e) if there is an Insolvency Event affecting Lessee or the Guarantor;

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		Lease Agreement
		File No.: 7210/02-926.1

 

(f) if Lessee fails to observe or perform any of the other covenants, conditions or obligations of Lessee in this Lease; provided, however, if any such failure does not involve the payment of any Monetary Obligation, is not in bad faith, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Lessor shall have given Lessee notice thereof and a period of thirty (30) days shall have elapsed, during which period Lessee may correct or cure such failure, upon failure of which an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such thirty (30)-day period, as determined by Lessor in its reasonable discretion, and Lessee is diligently pursuing a cure of such failure, then Lessee shall have a reasonable period to cure such failure beyond such thirty (30)-day period, which shall in no event exceed one hundred eighty (180) days after receiving notice of such failure from Lessor. If Lessee shall fail to correct or cure such failure within such one hundred eighty (180)- day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required; and provided, however, that notwithstanding anything to the contrary, if the Property or any rights or property of Lessor is placed in immediate jeopardy, Lessor shall have the right to take such measures as may be necessary to protect the Property or Lessor’s rights, at Lessee’s expense, provided that Lessor promptly notifies Lessee of the action taken by Lessor;

(g) if a final, nonappealable judgment is rendered by a court against Lessee which has a Material Adverse Effect, and is not discharged or provision made for such discharge within ninety (90) days from the date of entry thereof;

(h) if Lessee shall begin proceedings towards its liquidation or dissolution;

(i) if the estate or interest of Lessee in the Property shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within ninety (90) days after it is made;

(j) if there is a breach or default (after the passage of all applicable notice and cure periods) under the Franchise Agreement with respect to the Property or if such Franchise Agreement terminates or expires prior to the expiration of the Lease and a substitute agreement for the terminated or expired Franchise Agreement is not entered into within sixty (60) days after such expiration or termination, which substitute agreement shall be in form and substance reasonably satisfactory to Lessor;

(k) if there is an “Event of Default” or other breach or default by Lessee under the Disbursement Agreement, after the passage of all applicable notice and cure or grace periods; or

(l) if there is a breach or default (after the passage of all applicable notice and cure periods) under the Management Agreement with respect to the Property or if such Management Agreement terminates or expires prior to the expiration of the Lease and a substitute agreement for the terminated or expired Management Agreement is not entered into within sixty (60) days after such expiration or termination, which substitute agreement shall be in form and substance reasonably satisfactory to Lessor.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

 

Section 12.02. Remedies. Upon the occurrence and during the continuation of an Event of Default, with or without notice or demand, except as otherwise expressly provided herein or such other notice as may be required by statute and cannot be waived by Lessee, Lessor shall be entitled to exercise, at its option, concurrently, successively, or in any combination, all remedies available at Law or in equity, including, without limitation, any one or more of the following:

(a) to terminate this Lease, whereupon Lessee’s right to possession of the Property shall cease and this Lease, except as to Lessee’s liability, shall be terminated;

(b) to the extent not prohibited by applicable Law, to (i) re-enter and take possession of the Property (or any part thereof), any or all personal property or fixtures of Lessee upon the Property and, to the extent permissible, Franchise Agreement, permits and other rights or privileges of Lessee pertaining to the use and operation of the Property, and (ii) expel Lessee and those claiming under or through Lessee, without being deemed guilty in any manner of trespass or becoming liable for any loss or damage resulting therefrom, without resort to legal or judicial process, procedure or action. No notice from Lessor hereunder or under a forcible entry and detainer statute or similar Law shall constitute an election by Lessor to terminate this Lease unless such notice specifically so states. If Lessee shall, during the existence of an Event of Default, voluntarily give up possession of the Property to Lessor, deliver to Lessor or its agents the keys to the Property, or both, such actions shall be deemed to be in compliance with Lessor’s rights and the acceptance thereof by Lessor or its agents shall not be deemed to constitute a termination of the Lease. Lessor reserves the right following any re-entry and/or reletting to exercise its right to terminate this Lease by giving Lessee written notice thereof, in which event this Lease will terminate;

(c) to bring an action against Lessee for any damages sustained by Lessor or any equitable relief available to Lessor and to the extent not prohibited by applicable Law, to seize all personal property or fixtures upon the Property which Lessee owns or in which it has an interest, in which Lessor shall have a landlord’s lien and/or security interest, and to dispose thereof in accordance with the Laws prevailing at the time and place of such seizure or to remove all or any portion of such property and cause the same to be stored in a public warehouse or elsewhere at Lessee’s sole expense, without becoming liable for any loss or damage resulting therefrom and without resorting to legal or judicial process, procedure or action;

(d) to relet the Property or any part thereof for such term or terms (including a term which extends beyond the original Lease Term), at such rentals and upon such other terms as Lessor, in its sole discretion, may determine, with all proceeds received from such reletting being applied to the Rental and other Monetary Obligations due from Lessee in such order as Lessor may, in its sole discretion, determine, which other Monetary Obligations include, without limitation, all repossession costs, brokerage commissions, attorneys’ fees and expenses, alteration, remodeling and repair costs and expenses of preparing for such reletting. Lessor shall use commercially reasonable efforts to relet the Property. Lessor reserves the right following any re-entry and/or reletting to exercise its right to terminate this Lease by giving Lessee written notice thereof, in which event this Lease will terminate as specified in said notice;

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		Lease Agreement
		File No.: 7210/02-926.1

(e) to accelerate and recover (discounted to present value) from Lessee all Rental and other Monetary Obligations due and owing and scheduled to become due and owing under this Lease both before and after the date of such breach for the entire original scheduled Lease Term;

(f) to recover from Lessee all Costs paid or incurred by Lessor as a result of such breach, regardless of whether or not legal proceedings are actually commenced;

(g) to immediately or at any time thereafter, and with or without notice, at Lessor’s sole option but without any obligation to do so, correct such Event of Default and charge Lessee all Costs incurred by Lessor therein. Any sum or sums so paid by Lessor, together with interest at the Default Rate, shall be deemed to be Additional Rental hereunder and shall be immediately due from Lessee to Lessor. Any such acts by Lessor in correcting Lessee’s Events of Default hereunder shall not be deemed to cure said breaches or defaults or constitute any waiver of Lessor’s right to exercise any or all remedies set forth herein;

(h) to immediately or at any time thereafter, and with or without notice, except as required herein, set off any money of Lessee held by Lessor under this Lease or any other Transaction Document or any Other Agreement against any sum owing by Lessee hereunder;

(i) to use the Security Deposit as described in Section 4.08 hereof;

(j) Without limiting the generality of the foregoing or limiting in any way the rights of Lessor under this Lease or otherwise under applicable Laws, at any time after the occurrence, and during the continuance, of an Event of Default, Lessor shall be entitled to apply for and have a receiver appointed under applicable Law by a court of competent jurisdiction (by ex parte motion for appointment without notice) in any action taken by Lessor to enforce its rights and remedies hereunder in order to protect and preserve Lessor’s interest under this Lease or in the Property and the Personalty, and in connection therewith, LESSEE HEREBY IRREVOCABLY CONSENTS TO AND WAIVES ANY RIGHT TO OBJECT TO OR OTHERWISE CONTEST THE APPOINTMENT OF A RECEIVER AFTER THE OCCURRENCE, AND DURING THE CONTINUANCE, OF AN EVENT OF DEFAULT; and/or

(k) to seek any equitable relief available to Lessor, including, without limitation, the right of specific performance.

Section 12.03. Cumulative Remedies. All powers and remedies given by Section 12.02 to Lessor, subject to applicable Law, shall be cumulative and not exclusive of one another or of any other right or remedy or of any other powers and remedies available to Lessor under this Lease, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements of Lessee contained in this Lease, and no delay or omission of Lessor to exercise any right or power accruing during the occurrence and continuation of any Event of Default shall impair any other or subsequent Event of Default or impair any rights or remedies consequent thereto. Every power and remedy given by this Section or by Law to Lessor may be exercised from time to time, and as often as may be deemed expedient, by Lessor, subject at all times to Lessor’s right in its sole judgment to discontinue any work commenced by Lessor or change any course of action undertaken by Lessor.

		STORE /Altitude Academies
		Lease Agreement
		File No.: 7210/02-926.1

 

Section 12.04. Lessee Waiver. Lessee hereby expressly waives, for itself and all Persons claiming by, through and under Lessee, including creditors of all kinds, (a) any right and privilege which Lessee has under any present or future Legal Requirements to redeem the Property or to have a continuance of this Lease for the Lease Term after termination of Lessee’s right of occupancy by order or judgment of any court or by any legal process or writ, or under the terms of this Lease; (b) the benefits of any present or future Legal Requirement that exempts property from liability for debt or for distress for rent; and (c) any present or future Legal Requirement relating to notice or delay in levy of execution in case of eviction of a tenant for nonpayment of rent.

ARTICLE XIII

Mortgage, Subordination and Attornment

Section 13.01. Liens.

(a) Lessor’s interest in this Lease and/or the Property shall not be subordinate to any liens or encumbrances placed upon the Property by or resulting from any act of Lessee, and nothing herein contained shall be construed to require such subordination by Lessor. NOTICE IS HEREBY GIVEN THAT LESSEE IS NOT AUTHORIZED TO PLACE OR ALLOW TO BE PLACED ANY LIEN, MORTGAGE, DEED OF TRUST, DEED TO SECURE DEBT, SECURITY INTEREST OR, EXCEPT AS SET FORTH IN SECTION 7.03, ENCUMBRANCE OF ANY KIND UPON ALL OR ANY PART OF THE PROPERTY OR EXCEPT AS SET FORTH BELOW, LESSEE’S LEASEHOLD INTEREST THEREIN, AND ANY SUCH PURPORTED TRANSACTION SHALL BE VOID.

(b) Notwithstanding the foregoing, Lessor acknowledges and agrees:

(i) that Lessor and FVP Servicing, LLC, a Delaware limited liability company, as administrative agent (“Feenix”) have entered into that certain Consent Agreement dated as of the Effective Date (the “Feenix Consent”), whereby Lessor has acknowledged and agreed to provide certain rights and remedies for the benefit of Feenix in connection with this Lease and Disbursement Agreement as further set forth in the Feenix Consent;

(ii) that Lessee shall have the right to obtain equipment financing, a line of credit and other similar types of financing so long as no lien in connection therewith is placed on the Property or the Personalty unless such lien is subordinated to this Lease (such permitted financing by Lessee being referred to as “Lessee Financing”). In connection with any such Lessee Financing, upon Lessee’s request, Lessor shall reasonably cooperate with Lessee at no cost to Lessor and shall provide such reasonable assurances to Lessee’s financing parties providing such Lessee Financing, that they will (i) have access to their respective collateral which does not constitute the Property or the Personalty, and (ii) have the right to remove such Collateral to the extent located at the Property within thirty (30) days after termination of this Lease; and.

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		Lease Agreement
		File No.: 7210/02-926.1

 

(iii) that upon the occurrence of an Insolvency Event of Lessor resulting in Lessor failing to fund the Disbursements under the Disbursement Agreement, Lessee may, without the consent of Lessor, mortgage or otherwise encumber the leasehold interest of Lessee in the Property pursuant to this Lease (a “Leasehold Mortgage”). In connection with the Leasehold Mortgage, Lessor shall enter into a landlord agreement with Lessee’s lender (the “Leasehold Lender”) with terms reasonably acceptable to Lessor, Lessee and the Leasehold Lender.

Section 13.02. Subordination Non-Disturbance and Attornment Agreement.

(a) Lessor, Citibank NA, as Lessor’s agent and Lessee have executed that certain Subordination and Non Disturbance Agreement dated as of the Effective Date and recorded in the county records in the county in which the Property is located (the “SNDA”) whereby the parties to the SNDA have agreed this Lease is subordinate to the lien of any Mortgage, subject to the express condition that Lessee shall have the right to remain in possession of the Property under the terms of this Lease (including the terms of the Feenix Consent) and that the Disbursement Agreement shall remain in full force and effect and shall be binding on any Successor Lessor (as defined below), notwithstanding any default under such Mortgage, or after the foreclosure of such Mortgage.

(b) As set forth in the SNDA, in the event any purchaser or assignee of any Lender at a foreclosure sale acquires title to the Property, or in the event that any Lender or any purchaser or assignee otherwise succeeds to the rights of Lessor as landlord under this Lease in connection with a foreclosure or deed in lieu of foreclosure or otherwise (in either event, a “Successor Lessor”), such Successor Lessor shall assume and shall automatically be deemed to have assumed all of Lessor’s obligations under this Lease, the Feenix Consent and Disbursement Agreement from and after the effective date of such foreclosure or deed in lieu of foreclosure and Lessee shall attorn to such Successor Lessor, shall recognize the Successor Lessor as lessor under this Lease, and this Lease (and Lessee’s rights hereunder including the rights under the Disbursement Agreement) shall continue in full force and effect as a direct lease between the Successor Lessor and Lessee. Such attornment shall in no way diminish or impair Lessee’s rights and remedies against Lessor (all of which Lessee may continue to assert against the Successor Lessor), or require Lessee to waive any default by Lessor.

Section 13.03. Execution of Additional Documents. Although no future instrument shall be required, upon request by Lessor, Lessee or Successor Lessor, the parties shall execute and deliver such additional reasonable instruments as may be reasonably required for such purposes, including obtaining an additional SNDA from any subsequent lender of Lessor (in form and substance similar to the SNDA executed as of the Effective Date), provided, however, such documents shall not increase the liabilities or obligations of Lessee nor diminish Lessee’s rights hereunder, including but not limited to the rights set forth in the Disbursement Agreement.

ARTICLE XIV

Assignment

Section 14.01. Assignment by Lessor. As a material inducement to Lessor’s willingness to enter into the transactions contemplated by this Lease (the “Transaction”) and the other Transaction Documents, Lessee hereby agrees that Lessor may, from time to time and at any time and without the consent of Lessee, engage in all or any combination of the following, or enter into agreements in connection with any of the following or in accordance with requirements that may be imposed by applicable securities, tax or other Laws: (a) the sale, assignment, grant, conveyance, transfer, financing, re-financing, purchase or re-acquisition of the Property, this Lease or any other Transaction Document, Lessor’s right, title and interest in this Lease or any other Transaction Document, the servicing rights with respect to any of the foregoing, or participations in any of the foregoing; or (b) a Securitization and related transactions; provided, however, notwithstanding anything to the contrary, any assignment of this Lease must also include an assignment of the Disbursement Agreement and any party receiving an assignment of this Lease must also receive an assignment of the Disbursement Agreement and agree to be bound by both this Lease and the Disbursement Agreement. Without in any way limiting the foregoing, the parties acknowledge and agree that Lessor, in its sole discretion, may assign this Lease or any interest herein to another Person in order to maintain Lessor’s or any of its Affiliates’ status as a REIT. In the event of any such assignment other than a security assignment, Lessee shall attorn to such assignee (so long as Lessor and such assignee notify Lessee in writing of such transfer and such assignee expressly assumes in writing the obligations of Lessor hereunder from and after the date of such assignment). At the request of Lessor, Lessee will execute such documents confirming the sale, assignment or other transfer and such other agreements as Lessor may reasonably request, provided that the same do not increase the liabilities and obligations of Lessee nor diminish Lessee’s rights hereunder. Provided that the Security Deposit and all other reserves, awards, proceeds and impounds being held by Lessor for the account of Lessee have been conveyed to the successor owner or assignee, Lessor shall be relieved, from and after the date of such transfer or conveyance in accordance with this Section 14.01, of liability for the performance of any obligation of Lessor contained herein, except for obligations or liabilities accrued prior to such assignment or sale.

Section 14.02. Assignment by Lessee. Lessee acknowledges that Lessor has relied both on the business experience and creditworthiness of Lessee and upon the particular purposes for which Lessee intends to use the Property in entering into this Lease. Lessee shall not assign, transfer, convey, pledge or mortgage this Lease or any interest herein or any interest in Lessee (other than an acquisition of the Ownership Interest by Feenix or its designee or nominee as set forth in the Feenix Consent), whether by operation of Law or otherwise, without the prior written consent of Lessor, such consent not to be unreasonably withheld, conditioned or delayed and shall be based upon the creditworthiness and industry experience of the proposed assignee or transferee. At the time of any assignment of this Lease which is approved by Lessor, the assignee shall assume all of the obligations of Lessee under this Lease pursuant to a written assumption agreement in form and substance reasonably acceptable to Lessor. Such assignee shall recertify such representations and warranties subject to any reasonable qualifications and modifications which pertain to such assignee and which exist as of the date of such assignment. Such assignment of this Lease pursuant to this Section 14.02 shall not relieve Lessee of its obligations respecting this Lease unless otherwise agreed to by Lessor. Any assignment, transfer, conveyance, pledge or mortgage in violation of this Section 14.02 shall be voidable at the sole option of Lessor. Any consent to an assignment given by Lessor hereunder shall not be deemed a consent to any subsequent assignment.

Section 14.03. No Sale of Assets. Without the prior written consent of Lessor, such consent not to be unreasonably withheld, conditioned or delayed Lessee shall not sell all or substantially all of Lessee’s assets. Any sale of Lessee’s assets in violation of this Section 14.03, shall be voidable at the sole option of Lessor. Any consent to a sale of Lessee’s assets given by Lessor hereunder shall not be deemed a consent to any subsequent sale of Lessee’s assets.

Section 14.04. Subletting.

(a) Lessee shall not sublet any or all of the Property without the prior written consent of Lessor, such consent not to be unreasonably withheld, conditioned or delayed and any purported subletting without such consent shall be void; provided, however, that Lessee may sublease, without Lessor’s consent, (a) to an Affiliate, (b) up to 5% of the land and up to 10% of the total square footage of all of the buildings on the Property in the aggregate or (c) the Preapproved Subleases, (each such sublease described in this Section 14.03, individually, a “Sublease” and collectively, “Subleases”, and each subtenant thereunder, individually a “Subtenant” and collectively, “Subtenants”) so long as each Sublease contains the following provisions: (i) the Sublease is subject and subordinate to this Lease; (ii) the Sublease shall not contain any terms inconsistent with this Lease (or if so, the terms of this Lease shall control); (iii) the rent due under any Sublease shall be fixed rent and shall not be based on the net profits of any Subtenant; (iv) unless otherwise mutually agreed upon by Lessor and the related Subtenant, the Sublease shall terminate upon the expiration or sooner termination of this Lease (including any renewals hereof), provided that the related Subtenant agrees to attorn to Lessor if Lessor elects to assume the Sublease following a termination of this Lease; and (v) Lessee shall at all times remain liable under this Lease irrespective of any Sublease.

(b) Lessee covenants and agrees that (1) Lessee shall observe and timely perform all of its obligations as the landlord or sublandlord under each Sublease in compliance with the terms thereof; (2) Lessee shall not assign all or part of any Sublease without the prior written consent of Lessor; (3) Lessee shall promptly provide Lessor with any notice of default received from Lessee by any Subtenant or any notice of default sent by Lessee to any Subtenant; (4) Lessee shall furnish Lessor with any and all information requested by Lessor reasonably necessary for a determination of the status of any Sublease; (5) Lessee shall provide Lessor with copies of any and all Subleases and/or amendments to Subleases within five (5) Business Days of execution thereof.

(c) As security for the payment and performance by Lessee of its obligations under this Lease, Lessee hereby assigns, transfers, sets over and grants to Lessor, a security interest in any and all of Lessee’s right, title and interest, powers, privileges and other benefits as landlord under the Sublease which may be exercised at any time an Event of Default exists and is continuing, including, without limitation: (a) rent and proceeds thereof; (b) the right to enter upon, take possession of and use any and all property subleased or granted by Lessee under the Sublease; (c) the right to make all waivers and agreements, to give all notices, consents and releases, to take all action upon the happening of any default giving rise to a right in favor of Lessee under the Sublease; and (d) the right to do any and all other things whatsoever which Lessee is or may become entitled to do under the Sublease. Upon the occurrence of and during the continuance of an Event of Default hereunder, Lessee agrees that, at the option of Lessor and in addition to such other rights and remedies as may be afforded to Lessor under this Lease, Lessor shall have the right, without giving notice to or obtaining the consent of Lessee, to exercise, enforce or avail itself of any of the rights, powers, privileges, authorizations or benefits assigned and transferred to Lessor pursuant to this Section 14.04, including, without limitation, the right to collect all amounts due under the Sublease. From and after the occurrence of and during the continuance of an Event of Default, Lessee does hereby irrevocably appoint Lessor as Lessee’s true and lawful attorney, with full power (in the name of Lessee or otherwise) to ask, require, demand, receive and give acquittance for every payment under or arising out of the Sublease to which Lessee is or may become entitled. Lessee declares that this appointment is coupled with an interest and shall be irrevocable by Lessee. Lessee further agrees to execute any and all other instruments deemed reasonably necessary by Lessor to further the intent of the foregoing assignment and to vest Lessor in the Sublease. Notwithstanding any provision contained in this Section 14.04, (i) Lessor shall not be obligated to perform or discharge any obligation, duty or liability under the Sublease by reason of the foregoing assignment; and (ii) Lessor shall not be liable or responsible for, and Lessee agrees to indemnify and hold Lessor harmless from and against any liability, loss, cost or damage, claim or demand against Lessor arising, directly or indirectly, from or related to the Sublease except to the extent resulting from the gross negligence or willful misconduct of any Indemnified Party.

ARTICLE XV

Notices

Section 15.01. Notices. All notices, demands, designations, certificates, requests, offers, consents, approvals, appointments and other instruments given pursuant to this Lease shall be in writing and given by any one of the following: (a) hand delivery; (b) express overnight delivery service; (c) certified or registered mail, return receipt requested; or (d) email transmission, and shall be deemed to have been delivered upon (i) receipt, if hand delivered; (ii) the next Business Day, if delivered by a reputable express overnight delivery service; (iii) the fifth (5^th) Business Day following the day of deposit of such notice with the United States Postal Service, if sent by certified or registered mail, return receipt requested; or (iv) transmission, if delivered by email transmission (if email transmission sent after 5:00pm EST, such transmission shall be deemed sent the next Business Day), provided, however, that any notices of termination or of default must also be sent by one of the other methods of delivery set forth in this Section). Notices shall be provided to the parties and addresses (or electronic mail addresses) specified below:

or to such other address or such other person as either party may from time to time hereafter specify to the other party in a notice delivered in the manner provided above.

ARTICLE XVI

LESSOR’s Lien / Security Interest

Section 16.01. Lessor’s Lien and Security Interest. Lessee agrees that Lessor shall have and hereby separately grants to Lessor, a first priority landlord’s lien, in, on and against all of Lessee’s right, title and interest in, to and under all Personalty and the Security Deposit and Capital Replacement Reserve Funds, which lien and security interest shall secure the payment of all Rental and other Monetary Obligations payable by Lessee to Lessor under the terms hereof and all other obligations of Lessee to Lessor under this Lease. Lessee agrees that Lessor may file such documents as Lessor then deems appropriate or necessary to perfect and maintain said lien and security interest, and expressly acknowledges and agrees that, in addition to any and all other rights and remedies of Lessor whether hereunder or at Law or in equity, upon the occurrence of and during the continuation of an Event of Default hereunder, Lessor shall have any and all rights and remedies granted a secured party under the Uniform Commercial Code then in effect in the state where the Property is located. Lessee covenants to promptly notify Lessor of any changes in Lessee’s name and/or organizational structure which may necessitate the execution and filing of additional financing statements; provided, however, the foregoing shall not be construed as Lessor’s consent to such changes.

Lessee hereby ratifies its authorization for Lessor or any of its Affiliates to have filed in any Uniform Commercial Code jurisdiction any initial financing statement and any amendments thereto covering the Personalty pledged herein, if filed prior to the Effective Date.

ARTICLE XVII

MISCELLANEOUS

Section 17.01. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, acts of God, pandemic, epidemic, enemy or hostile governmental action, civil commotion, fire or other casualty or event beyond the control of the party obligated to perform (each, a “Force Majeure Event”) shall excuse the performance by such party for a period equal to any such prevention, delay or stoppage, expressly excluding, however, the obligations imposed upon Lessee with respect to Rental and other Monetary Obligations to be paid hereunder.

Section 17.02. No Merger. There shall be no merger of this Lease nor of the leasehold estate created by this Lease with the fee estate in or ownership of the Property by reason of the fact that the same person, corporation, firm or other entity may acquire or hold or own, directly or indirectly, (a) this Lease or the leasehold estate created by this Lease or any interest in this Lease or in such leasehold estate, and (b) the fee estate or ownership of the Property or any interest in such fee estate or ownership. No such merger shall occur unless and until all persons, corporations, firms and other entities having any interest in (i) this Lease or the leasehold estate created by this Lease, and (ii) the fee estate in or ownership of the Property or any part thereof sought to be merged shall join in a written instrument effecting such merger and shall duly record the same.

Section 17.03. Interpretation. Lessor and Lessee acknowledge and warrant to each other that each has been represented by independent counsel and has executed this Lease after being fully advised by said counsel as to its effect and significance. This Lease shall be interpreted and construed in a fair and impartial manner without regard to such factors as the party which prepared the instrument, the relative bargaining powers of the parties or the domicile of any party. Whenever in this Lease any words of obligation or duty are used, such words or expressions shall have the same force and effect as though made in the form of a covenant.

Section 17.04. Characterization. Lessor and Lessee intend that the business relationship created by this Lease and any related documents is solely that of a long-term commercial lease between Lessor and Lessee, the Lease has been entered into by both parties in reliance upon the economic and legal bargains contained herein, and none of the agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership (de facto or de jure) between Lessor and Lessee, to make them joint venturers, to make Lessee an agent, legal representative, partner, subsidiary or employee of Lessor, nor to make Lessor in any way responsible for the debts, obligations or losses of Lessee.

Section 17.05. Disclosures.

(a) Securities Act or Exchange Act. The parties agree that, notwithstanding any provision contained in this Lease, any party (and each party’s Affiliate and each employee, representative or other agent of any party or their respective Affiliates) may disclose to any and all persons, without limitation of any kind, any matter required under the Securities Act or the Exchange Act.

(b) Lessor Advertising and Related Publications. Subject to the prior written consent of Lessee, not to be unreasonably withheld, conditioned or delayed, Lessor may use, Lessee’s name, trademarks, logos, pictures of stores and signage, and basic Transaction information (collectively “Lessee’s Information”) solely in connection with Lessor’s sales, advertising, and press release materials, including on Lessor’s website. Lessee’s consent shall be deemed authorization for the limited use of Lessee’s Information by Lessor under all applicable copyright and trademark laws.

(c) Public Disclosures. Except as required by Law, neither Lessor nor Lessee shall make any public disclosure, including press releases or any form of media release, of this Lease Agreement or any transactions relating hereto without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed.

Section 17.06. Attorneys’ Fees. In the event of any judicial or other adversarial proceeding concerning this Lease, to the extent permitted by Law, the prevailing party shall be entitled to recover all of its reasonable attorneys’ fees and other Costs in addition to any other relief to which it may be entitled. In addition, the prevailing party shall, upon demand, be entitled to all attorneys’ fees and all other Costs incurred in the preparation and service of any notice or demand hereunder, whether or not a legal action is subsequently commenced.

Section 17.07. Memorandum of Lease. Concurrently with the execution of this Lease, Lessor and Lessee are executing Lessor’s standard form memorandum of lease in recordable form, indicating the names and addresses of Lessor and Lessee, a description of the Property, the Lease Term, but omitting Rental and such other terms of this Lease as Lessor may not desire to disclose to the public.

Section 17.08. No Brokerage. Except as disclosed to in that certain Purchase and Sale Agreement between Lessor and Lessee dated on or about the date hereof, Lessor and Lessee represent and warrant to each other that they have had no conversation or negotiations with any broker concerning the leasing of the Property. Each of Lessor and Lessee agrees to protect, indemnify, save and keep harmless the other, against and from all liabilities, claims, losses, Costs, damages and expenses, including attorneys’ fees, arising out of, resulting from or in connection with their breach of the foregoing warranty and representation.

Section 17.09. Waiver of Jury Trial and Certain Damages. LESSOR AND LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LESSOR AND LESSEE, LESSEE’S USE OR OCCUPANCY OF THE PROPERTY, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, LESSOR AND LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER PARTY AND ANY OF THE AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS OR EMPLOYEES OF LESSOR OR LESSEE, AS APPLICABLE, OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY LESSOR AND LESSEE OF ANY RIGHT EITHER MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.

Section 17.10. Intentionally deleted.

Section 17.11. State-Specific Provisions. The provisions and/or remedies which are set forth on the attached Exhibit D shall be deemed a part of and included within the terms and conditions of this Lease.

Section 17.12. Time is of the Essence; Computation. Subject to Section 17.01, time is of the essence with respect to each and every provision of this Lease. If any deadline provided herein falls on a non-Business Day, such deadline shall be extended to the next day that is a Business Day.