SALE AND PURCHASE AGREEMENT
AND
ESCROW INSTRUCTIONS
DATE OF AGREEMENT: June 2, 1999
SELLER: MARIE CALLENDER PIE SHOPS, INC.
a California corporation
Address: 1100 Town & Country Road, Suite 1300
Orange, California 92868
Telephone: (714) 542-3355
PURCHASER: AEI FUND MANAGEMENT, INC. OR ASSIGNS
Address: 1300 MN World Trade Center
30 East Seventh Street
St. Paul, MN 55101
Attention: Robert P. Johnson, Pres.
Telephone: Telephone: (651) 227-7333
ESCROW AGENT: Commonwealth Land Title Insurance Company
200 West Santa Ana Boulevard, Suite 100
Santa Ana, California 92701
Atten: Debi Calmelat
Telephone: 714.835-8511
Facsimile: 714.835-4201
OPENING DATE: June 15, 1999
(To Be Inserted By Escrow Agent)
RECITALS
A. Seller is the owner of those certain real properties,
individually or collectively, listed below and legally described
on Exhibits "A-1, A-2 and A-3" ("Properties"), together with all
improvements thereon, and all the rights, easements, and
appurtenances pertaining thereto, including, without limitation,
any right, title and interest of Seller in and to adjacent
streets, alleys or rights of way:
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STORE NAME & NUMBER LOCATION PURCHASE PRICE
1. Gresham #247 Farris Road $1,620,000
Gresham, OR
2. Henderson #245 Warm Springs Road $1,720,000
Henderson, NV
3. Amarillo #261 4111 Wolfin Avenue $1,620,000.
Amarillo, TX
B. Seller desires to sell the Properties to Purchaser, and
Purchaser desires to purchase the Properties from Seller, upon
the terms and conditions set forth herein.
C. It is the intent of the parties that, contemporaneous with
the Closing, as defined in this Agreement, Seller shall lease the
Properties from the Purchaser pursuant to the terms and
conditions stated in the form lease agreement attached hereto as
Exhibit "B" ("Lease"). A separate Lease will be signed for each
Property purchased, subject only to those modifications of the
attached form which are necessary for each Lease to comply with
local laws and regulations.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Purchase and Sale; Purchase Price; Terms of Payment.
1.1 Purchase and Sale.
Seller agrees to sell and Purchaser agrees to purchase the
Properties on the terms and conditions set forth in this
Agreement and further agree that Purchaser may purchase all, some
or none of the Properties.
1.2 Purchase Price.
The purchase price which Purchaser agrees to pay for each
Property is the amount set forth in Recital A, under the heading
"Purchase Price" beside the Name, Location and Year Built for the
respective Property ("Purchase Price(s)").
1.3 Terms of Payment.
The Purchase Price shall be payable as follows:
1.3.1 Earnest Money Deposit.
Upon execution of this Agreement by both parties and receipt by
Purchaser of a copy hereof signed by Seller, $10,000 in
immediately available funds shall be deposited for each Property
(a total of $30,000) with Escrow Agent as an earnest money
deposit ("Earnest Money Deposit"). Upon receipt of the Earnest
Money Deposit, Escrow Agent shall immediately deposit same in a
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federally insured account and open an escrow account for the
transactions contemplated hereby. Any interest earned on escrowed
funds shall remain the property of, and be paid to, Purchaser.
1.3.2 Closing Payment.
An amount equal to the difference between the Purchase Price and
the Earnest Money Deposit shall be paid by Purchaser in
immediately available funds at Closing ("Closing Payment").
1.4 Rent.
The annual rental shall be an amount equal to 9.5% of the
Purchase Price (minus $20,000) for each Property, payable in
equal monthly installments. The annual rent for each Property
shall increase by five percent (5%) beginning in the sixth and
eleventh lease years.
2. Closing.
The closing of this transaction ("Closing") shall occur, at the
offices of Escrow Agent located at Commonwealth Land Title
Insurance Company ("Title Company"), attention Debi Calmelat,
unless another location is mutually agreed to by the parties, on
the date twenty (20) business days following the expiration of
the Properties Review Period ("Closing Date"). Either party may
participate in the Closing by mail.
3. Deeds.
At the Closing, Seller shall convey title to the Properties to
Purchaser by form of Warranty Deed or Specialty Warranty Deed by
which Seller acquired title to the respective Property ("Deed"),
subject only to those specific matters approved by Purchaser as
herein provided.
4. Title and Title Insurance.
4.1 Title Report.
Within seven (7) business days from the Opening Date, Escrow
Agent shall deliver a current commitment for title insurance or a
preliminary title report ("Title Report") on each Property from
Commonwealth Land Title Insurance Company ("Title Insurer") to
both Purchaser and Seller. Each such Title Report shall show the
status of title to each Property as of the date of the Title
Report and shall be accompanied by legible copies of all
documents referred to in the Title Report.
4.2 Title Review Period.
Purchaser shall have a period of time beginning upon Purchaser's
receipt of the each Title Report and copies of all documents
referred to therein and ending at 5:00 p.m., Central Standard
time, fifteen (15) business days thereafter ("Title Review
Period"), to review each Title Report and to give Seller and
Escrow Agent notice of any title exceptions which are
unacceptable to Purchaser. If Purchaser fails to deliver to
Seller notice of objections to any Title Report within such time,
such Title Report shall be deemed approved. If Purchaser gives
notice of dissatisfaction as to any exception to title as shown
in a Title Report, or any amendment thereto, Seller may, but
shall not be obligated to, attempt to eliminate the disapproved
exception from such Title Report or any amendment thereto prior
to the Closing Date. If Seller does not eliminate the disapproved
exception prior to the Closing Date, Purchaser's sole and
exclusive remedies shall be to either reject the Property covered
by the Title Report to which Seller objected by giving Seller and
Escrow Agent written notice thereof, or to close such transaction
subject to such previously disapproved exception. Notwithstanding
the foregoing, if Seller notifies Purchaser in writing of
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its election not to eliminate a disapproved exception to title,
Purchaser shall have until the earlier of the Closing Date or
five (5) business days after receiving Seller's notice of making
its election in writing as described above to either reject the
affected Property or proceed to Closing. With respect to any
amendments or updates to the Title Report or previous amendments
or updates thereto, the same provisions and procedures described
above shall apply with respect to Purchaser's review and approval
of, and Seller's option to eliminate, disapproved exceptions,
except that Purchaser shall have five (5) business days after its
receipt of the amendment or update to give its notice of
dissatisfaction to any new title exception.
As to any Property so rejected by Purchaser, Escrow Agent
shall, without further instruction from either party, return to
Purchaser the portion of the Earnest Money Deposit and any
interest earned thereon allocable to such Property ($10,000) and
as to such Property the Escrow shall terminate.
4.3 Owner's Title Policy.
As to each of the Properties not rejected by Purchaser pursuant
to Section 4.2, Seller shall cause Escrow Agent to provide
Purchaser with a standard coverage owner's policy of title
insurance ("Owner's Title Policy") at the Closing or as soon
thereafter as is reasonably possible. The Owner's Title Policy
shall be issued by the Title Insurer in the full amount of the
Purchase Price, for such Property be effective as of the Closing
Date, and shall insure Purchaser that fee simple title to such
Property is vested in Purchaser, subject only to: (i) the usual
printed exceptions and exclusions contained in such title
insurance policies; (ii) the exceptions to title approved or
deemed approved by Purchaser as provided for in Section 4.2 of
this Agreement; and (iii) any other matter approved in writing by
Purchaser or resulting from the acts of Purchaser or Purchaser's
agents. The cost of any endorsement to each Owner's Title Policy
shall be paid in full by Purchaser.
5. Feasibility Condition.
5.1 Properties Review Period.
During the period of time beginning after the Opening Date of
Escrow and after Seller has met its obligations with respect to
document delivery as defined in Section 5.4 hereof and ending at
5:00 PM Central Standard time thirty (30) business days
thereafter ("Properties Review Period"), Purchaser shall have the
right to enter upon the Properties, (if accompanied by Seller's
representative or agent) for the purpose of examination and
investigation of the Properties. Subject to Section 5.5
Purchaser, its representatives and agents shall have the right
during this Properties Review Period to conduct all testing and
examinations it deems necessary to determine the desirability of
purchasing the Properties. Purchaser shall have the right during
the Properties Review Period to cancel this Agreement with
respect to all or any Properties if it is dissatisfied, in its
sole and absolute discretion, with the results of its examination
of the Properties or any documentation related thereto, or for
any other reason. After performing any tests or examinations,
Purchaser shall promptly return the Property to the same
condition it was in prior to the testing or examination.
5.2 When Earnest Money Becomes Non-refundable.
On or before the expiration of the Properties Review Period,
Purchaser shall give written notice to Seller and Escrow Agent of
its election, as to each Property to either cancel this Agreement
or to proceed to close the transaction upon the terms and
conditions herein. If this Agreement is canceled with respect to
one or more of the Properties, but not all of them, then upon
written notice by Purchaser to the Escrow Agent, a pro-rata
portion of the Earnest Money Deposit, along with any interest
earned or accrued thereon, shall be immediately paid by the
Escrow Agent to
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the Purchaser and this Agreement and the Escrow Account shall
remain in effect for the balance of the remaining Property or
Properties. Upon expiration of the Properties Review Period if
Purchaser elects to proceed to close this transaction, as to any
Property or all of then the applicable portion of the Earnest
Money Deposit allocable to such Property or Properties shall
become nonrefundable to Purchaser, except if Seller defaults
under this Agreement, subject, however, to the provisions of
Article 4.2 of this Agreement.
5.3 Indemnification.
All entries on, and inspections or studies of, the Properties
shall be at the expense of Purchaser and Purchaser shall
indemnify and hold Seller harmless from and against any and all
liens, claims, demands, injuries, damages, losses, costs,
expenses (including all reasonable attorney fees), or liability
incurred by or asserted against the Seller or any of the
Properties as a result of any of those entries, inspections or
studies, which Purchaser's indemnification shall survive the
Closing or any termination of this Agreement.
5.4 Transfer of Documentation.
Within ten (10) business days after the Opening Date of Escrow,
Seller shall provide Purchaser with (and shall transfer upon
Closing as part of the purchase herein contemplated) copies of
any and all final existing building plans, preliminary or as-
built surveys, Phase I environmental and engineering and soils
reports, and similar non-privileged documents in the possession
of Seller (as specified in the Letter of Intent between the
parties dated March 30, 1999) and which relate to the Properties
(collectively, the "Properties Documents"). The date upon which
all of the Property's Documents have been delivered to Purchaser
shall be referred to as the "Properties Documents Delivery Date".
In any event, Purchaser shall have not less than 20 business days
after the Properties Documents Delivery Date to inspect and
approve or reject such documents.
If after the Properties Documents Delivery Date Seller supplies
(and if the same shall come to the attention of Seller, the
Seller shall so supply) any amendments, updates or corrections to
the Properties Documents, Purchaser shall have an additional five
(5) business days after the expiration of the 20-day review
period, or after the delivery of such amendments, updates or
corrections supplied by Seller, to review and approve any such
amendments, updates or corrections.
5.5 Noninterference with Business.
The Properties are presently occupied by Seller. Notwithstanding
anything to the contrary, Purchaser may not conduct any of its
tests or examinations during normal business hours except with
the prior permission of Seller. Purchaser shall conduct all such
tests and examinations so as not to interfere with Seller's
business, parking or the access of Seller's customers to the
restaurant on the respective Property. No chemicals or hazardous
substances shall be used in any testing or examination. No tools
or materials shall be left or stored in or around the Properties
during the Properties Review Period. Purchaser agrees to
indemnify Seller and hold Seller harmless from the cost,
liability, expense or injury to person or property arising out of
any violation of this Paragraph 5.5 including but not limited to
attorney fees.
5.6 Financing Conditions and Obligations.
There shall be no financing contingency connected with this
Agreement.
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6. Escrow.
6.1 Establishment of Escrow.
An escrow for this transaction shall be established with Escrow
Agent and Escrow Agent is hereby employed by the parties to
handle the escrow. This Agreement shall constitute escrow
instructions and an original or fully executed copy shall be
deposited with Escrow Agent for this purpose. Should Escrow Agent
require the execution of its standard form printed escrow
instructions, Purchaser and Seller agree to execute the same;
however, such instructions shall be construed as applying only to
Escrow Agent's employment, and if there are conflicts between the
terms of this Agreement and the terms of the printed escrow
instructions, the terms of this Agreement shall control.
6.2 Cancellation of Escrow.
If the escrow fails to close because of Seller's default, Seller
shall be liable for all customary escrow cancellation charges. If
the escrow fails to close because of Purchaser's default,
Purchaser shall be liable for all customary escrow cancellation
charges. If the escrow fails to close for any other reason,
Seller and Purchaser shall each be liable for one-half (1/2) of
all customary escrow cancellation charges.
7. Closing Costs.
7.1 Seller's Closing Costs.
Seller will pay the premium for a standard title insurance
policy, one-half (1/2) of the Escrow fee and closing costs
customarily charged to Seller in the county where the respective
Property is located.
7.2 Buyer's Closing Costs.
Buyer shall pay one-half (1/2) of the Escrow fee, the premium for
any title insurance endorsements, the additional cost of the
title insurance premium for extended owner's policy of title
insurance, and the costs of recording the Deeds. At Closing,
Seller will reimburse Purchaser for its due diligence expenses in
fixed amounts equal to $20,000 plus one and one-half percent
(1.5%) of: [the Purchase Price of each Property less $20,000] for
each Property conveyed to Purchaser upon Closing.
7.3 Other Costs.
All other closing costs for each Property shall be borne
equally by Seller and Purchaser.
7.4 Prorations.
Real estate taxes, personal property taxes and assessments, if
any, shall be prorated through escrow, as of the Closing Date,
and be based upon the latest available information. Any other
closing costs shall be paid equally by Purchaser and Seller.
8. Possession.
Possession of the Properties shall be delivered to Purchaser upon
Closing, subject to the respective Leases executed between the
parties.
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9. Brokerage.
Purchaser and Seller warrant and represent to each other that
neither has dealt with any real estate broker or salesperson in
connection with this transaction. If any person shall assert a
claim to a finder's fee, brokerage commission, or any other
compensation on account of alleged employment as a finder or
broker or performance of services as a finder or broker in
connection with this transaction, the party under whom the finder
or broker is claiming shall indemnify and hold the other party
harmless from and against any such claim and all costs, expenses
and liabilities incurred in connection with such claim or any
action or proceeding brought on such claim, including, but not
limited to, counsel and witness fees and court costs in defending
against such claim. This indemnity shall survive the Closing or
cancellation and termination of this Agreement and the escrow.
10. Remedies.
10.1 Seller's Remedies.
IN THE EVENT THE CLOSING AND THE CONSUMMATION OF THE TRANSACTION
HEREIN CONTEMPLATED DOES NOT OCCUR AS HEREIN PROVIDED BY REASON
OF ANY DEFAULT OF PURCHASER, PURCHASER AND SELLER AGREE THAT IT
WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE
DAMAGES WHICH SELLER MAY SUFFER. THEREFORE PURCHASER AND SELLER
HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE DAMAGE THAT SELLER
WOULD SUFFER IN THE EVENT THAT PURCHASER DEFAULTS AND FAILS TO
COMPLETE THE PURCHASE OF THE PROPERTY IS AND SHALL BE, AS
SELLER'S SOLE AND EXCLUSIVE REMEDY AN AMOUNT EQUAL TO PURCHASEROS
EARNEST MONEY DEPOSIT (AN AMOUNT EQUAL TO $10,000 FOR EACH SUCH
PROPERTY). THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS
NOT INTENDED AS A FORFEITURE OR PENALTY BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER. UPON DEFAULT BY
PURCHASER, THIS AGREEMENT SHALL BE TERMINATED AND NEITHER PARTY
SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER.
/s/ RPJ /s/ SJ
Purchaser's Initials Seller's Initials
10.2 Purchaser's Remedies.
IN THE EVENT THE CLOSING AND THE CONSUMMATION OF THE TRANSACTION
HEREIN CONTEMPLATED DOES NOT OCCUR AS HEREIN PROVIDED BY REASON
OF ANY DEFAULT OF SELLER, SELLER AND PURCHASER AGREE THAT IT
WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE
DAMAGES WHICH PURCHASER MAY SUFFER. THEREFORE SELLER AND
PURCHASER DO HEREBY AGREE THAT PURCHASER SHALL BE ENTITLED TO,
AND ESCROW AGENT SHALL DELIVER TO PURCHASER, THE EARNEST MONEY
DEPOSIT AND ANY INTEREST EARNED THEREON, AND A REASONABLE
ESTIMATE OF THE DAMAGE THAT PURCHASER WOULD SUFFER IN THE EVENT
THAT SELLER DEFAULTS SHALL BE, FOR ANY PROPERTY WHICH PURCHASER
HAS NOT REJECTED OR AS TO WHICH PURCHASER HAS NOT CANCELED THE
ESCROW PURSUANT TO SECTIONS 4.2 OR 5.2, AS PURCHASEROS SOLE AND
EXCLUSIVE REMEDY, THAT SELLER SHALL PAY TO PURCHASER AN AMOUNT
EQUAL TO $10,000 FOR EACH SUCH PROPERTY. THE
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PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A
FORFEITURE OR PENALTY BUT IS INTENDED TO CONSTITUTE LIQUIDATED
DAMAGES TO PURCHASER. UPON DEFAULT BY SELLER, THIS AGREEMENT
SHALL BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER
RIGHTS OR OBLIGATIONS HEREUNDER.
/S/ RPJ /s/ SJ
Purchaser's Initials Seller's Initials
11. Opening Date.
The "Opening Date" shall be the date on which the Earnest Money
Deposit, together with a fully executed copy or counterpart
copies of the Purchase Agreement are received by the Escrow
Agent. Escrow Agent is hereby instructed to enter that Opening
Date on the first page of this Agreement and return a copy to
both Seller and Purchaser.
12. Seller's Representations and Warranties.
Seller represents and warrants to Purchaser (and on the Closing
Date shall be deemed to represent and warrants) as follows:
12.1 Legal, valid and Binding.
This Agreement and all other instruments or documents executed or
delivered with this transaction each constitute legal, valid and
binding obligations of Seller, enforceable against Seller in
accordance with their respective terms.
12.2 No Approval by Governmental Authority.
No consent, approval, authorization, registration, qualification,
designation, declaration or filing with any governmental
authority is required in connection with the execution and
delivery of this Agreement by Seller.
12.3 No Conflict.
The execution, delivery and performance of this Agreement by
Seller and the consummation of the transaction contemplated
herein will not: (i) result in a breach or acceleration of or
constitute a default or event of termination under the provisions
of any agreement or instrument by which the Properties is bound
or affected; (ii) result in the creation or imposition of any
lien, charges or encumbrance, not provided for herein, on or
against the Properties or any portion thereof; (iii) to the best
of Seller's knowledge constitute or result in the violation or
breach by Seller of any judgment, order, writ, injunction or
decree issued against or imposed upon Seller.
12.4 No Lawsuits.
Seller having undertaken no independent inquiry, there are no
actions, suits, proceedings or investigations pending, to the
best of Seller's knowledge or threatened, with respect to or in
any manner affecting Seller's ownership of the Properties or
otherwise affecting any portion thereof, or which will become a
cloud on the title to the Properties or question the validity or
enforceability of the transaction contemplated herein.
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12.5 No Leases.
There will be no existing leases and/or tenancies affecting all
or any portion of the Properties as of the Closing Date, except
for the respective Leases.
12.6 No Mechanics Liens.
Seller hereby agrees to indemnify Purchaser from and against any
and all claims of third parties, including costs and reasonable
attorneys' fees and from all mechanics' liens in connection with
the Properties, whose claim or claim of lien arises from labor or
material provided to the Properties prior to Closing or pursuant
to a contract entered into with Seller prior to Closing.
12.7 Non-Foreign Affidavit.
Seller is not, and as of the Closing Date will not be, a "foreign
person" within the meaning of Internal Revenue Code Section 1445,
and Seller shall deliver to Purchaser at Closing a Non-Foreign
Affidavit pursuant to Section 1445(b)(2) of the Internal Revenue
Code ("Non-Foreign Affidavit").
13. As Is.
Except for the express representations and warranties contained
in Article 12, Seller has made no representations or warranties
of any kind, and will at the Closing make no representations or
warranties of any kind, in connection with the physical condition
of the Properties. Except for the representations and warranties
contained in Article 12 and the covenants and warranties to be
contained in the Deed, Seller shall have no responsibility,
liability or obligations subsequent to the Closing with respect
to any conditions or as to any matters whatsoever respecting in
any way the Properties, which Purchaser acknowledges is being
purchased in an OAS IS, WHERE ISO condition.
14. Risk of Loss.
If prior to the Closing any Property shall be taken entirely by
condemnation or eminent domain, this Agreement shall be
automatically canceled as to such Property, the pro-rata portion
of, the Earnest Money Deposit and any interest earned thereon
shall be returned to Purchaser, and thereupon neither party
shall, except as otherwise provided herein, have any further
liability or obligation to the other. If prior to the Closing
less than all of any Property shall be taken by condemnation or
eminent domain, then Purchaser may, at its option, cancel this
Agreement, in which event Escrow Agent shall return to Purchaser
the pro-rata portion of the Earnest Money Deposit and any
interest earned thereon, and thereupon neither party shall have
any further liability or obligation to each other as to such
Property (except as otherwise stated herein), or Purchaser may
accept title subject to the taking, in which event at the Closing
the proceeds of the award or payment shall be assigned by Seller
to Purchaser and any moneys theretofore received by Seller in
connection with such taking shall be paid over to Purchaser. In
all other regards, the risk of loss or damage to the Properties
until the Closing shall be borne by Seller, except as provided in
Section 5.3.
15. Notices.
All notices required or permitted to be given under this
Agreement shall be in writing and shall be given by personal
delivery, recognized overnight courier services or by deposit in
the United States mail, postage prepaid, certified mail, return
receipt requested, addressed to Seller and Purchaser at the
addresses set forth on the first page of this Agreement or at
such other address as
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a party may designate by notice similarly given. Notices shall be
deemed effective upon delivery; if personally delivered: on the
next business day after deposit with a recognized overnight
courier service, or on the expiration of three (3) days after
deposit in the US mail, as described above. A copy of any notice
shall be given to Escrow Agent.
Copies of any notice given to Seller shall also be given to:
Marc Lindsey Weber, Esq.
1500 Quail Street, Suite 200
Newport Beach, California 92660
Telephone Number: (949) 756-0100
Facsimile Number: (949) 756-0137
16. Miscellaneous.
16.1 Incorporation of Recitals.
The recitals of this Agreement are hereby affirmed by the parties
as true and correct and are incorporated herein by this
reference.
16.2 Waivers.
No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provision, whether or not
similar, nor shall any waiver be a continuing waiver. Except as
expressly provided in this Agreement, no waiver shall be binding
unless executed in writing by the party making the waiver. Either
party may waive any provision of this Agreement intended for its
sole benefit; however, unless otherwise provided for herein, such
waiver shall in no way excuse the other party from the
performance of any of its other obligations under this Agreement.
16.3 Construction.
This Agreement shall be interpreted according to the law of the
state where the Properties are located, and shall be construed as
a whole and in accordance with its fair meaning and without
regard to, or taking into account, any presumption or other rule
of law requiring construction against the party preparing this
Agreement or any part hereof.
16.4 Time.
Time is of the essence of this Agreement.
16.5 Attorney's Fees.
If any action is brought by either party in respect to its rights
under this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and court costs as determined by the
court.
16.6 Assignment.
Purchaser may assign its rights under this Agreement prior to
Closing without the prior written consent of Seller.
16.7 Binding Effect.
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This Agreement and all instruments or documents entered into
pursuant hereto are binding upon and shall inure to the benefit
of the parties and their respective successors and assigns.
16.8 Further Assurances and Documentation.
Each party agrees in good faith to take such further actions and
execute such further documents as may be necessary or appropriate
to fully carry out the intent and purpose of this Agreement.
16.9 Time Periods.
If the time for the performance of any obligation under this
agreement expires on a Saturday, Sunday or legal holiday, the
time for performance shall be extended to the next succeeding day
which is not a Saturday, Sunday or legal holiday.
16.10 Headings.
The headings of this Agreement are for purposes of reference only
and shall not limit or define the meaning of any provision of
this Agreement.
16.11 Entire Agreement.
This Agreement, together with all exhibits referred to herein,
which are incorporated herein are made a part hereof by this
reference and the Lease between the parties, constitutes the
entire agreement between the parties pertaining to the subject
matter contained in this Agreement. No supplement, modification
or amendment of this Agreement shall be binding unless in writing
and executed by Purchaser and Seller.
16.12 Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
16.13 Survival.
Each of the terms and provisions of this Agreement, including the
representations and warranties contained in Article 12, which are
not incorporated into the Deed, or which are not satisfied by the
execution and delivery of the Deed, or which by their nature
require the parties to perform certain
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acts subsequent to the Closing, shall survive the Closing, except
that the representations and warranties contained in Article 12
shall survive the Closing for a period of only six (6) months
only.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
SELLER:
MARIE CALLENDER PIE SHOPS, INC.,
a California corporation
By: /s/ Stephen Jennings
Its: CFO
PURCHASER:
AEI FUND MANAGEMENT, INC. (AND/OR ITS ASSIGNS)
a Minnesota Corporation
By: /s/ Robert P Johnson
Its: Pres
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ACCEPTANCE BY ESCROW AGENT
Escrow Agent hereby (a) acknowledges receipt of Buyer's Deposit
of $30,000, and a fully executed copy or counterpart copies of
this Agreement on this 15th day of June 1999, and has inserted
said date on the first page of this Agreement, and (b) hereby
agrees to establish an escrow (Escrow No. 015425-DC) and to
administer the same in accordance with the provisions hereof.
Escrow Agent further agrees to immediately deliver to Purchaser
and Seller copies or counterpart of this fully executed
Agreement.
Commonwealth Land Title Company
[changed to conform to the facts /s/ DC]
By:/s/ Debi Calmelat
Its:Escrow Officer
Marie Callender Purchase Agreement Lessee /s/ SJ Lessor /s/ RPJ
5/28/99
EXHIBIT "A-1" TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION
(Gresham, OR)
PARCEL 1:
A tract of land located in the J.P. Powell Donation Land Claim in
Section 3, Township 1 South, Range 3 East of the Willamette
Meridian, in the City of Gresham, County of Multnomal and State
of Oregon.
Beginning at the intersection of the Northerly right of way of SE
Burnside Road, with the Westerly right of way of SE 223rd Avenue,
said point being 60 feet from the centerline of SE Burnside Road
(County Road No. 2063) and 45 feet from the centerline of SE
223rd Avenue (County Road No. 3807); thence along the Northerly
right of way line of SE Burnside Road along the arc of a 11,400
foot radius curve to the right, an arc distance of 42.88 feet of
which the long chord bears North 67 10' 52" West; thence North
67 04' 24" West 431.12 feet to the true point of beginning of the
hereinafter described land; thence North 67 04'24" West along the
Northerly right of way line of SE Burnside Road, a distance of
166.00 feet; thence North 22 55' 36" East 314.07 feet to a point
on the Southwesterly right of way line of SE 223rd Avenue; thence
along the Southwesterly line of SE 223rd Avenue 93.85 feet alone
the arc of a 761.20 foot radius curve to the left through a
central angle of 7 03' 50" (the long chord bears South 89 08'00"
East 93.79 feet); thence along said Southwest right of way line
South 42 39'S5" East 148.41 feet; thence South 22 55'36" West
96.80 feet; thence North 67 04'24" West 52.00 feet; thence South
22 55'36" West 112.00 feet to the true point of beginning.
PARCEL 2:
A non-exclusive easement for ingress, egress, vehicle and
pedestrian traffic over the tracts more particularly described as
follows:
A portion of land located within a parcel, being described by
Deed recorded in Book 2417,
Page 1767, Multnomah County Deed Records; said parcel being in
the Southwest one-quarter of
Section 3, Township 1 South, Range 3 East, in the City of
Gresham, County of Multnomah and
State of Oregon, said portion being more particularly described
as follows:
Beginning at a point being the most Southwesterly corner of said
parcel, said point also being on the Northerly right-of-way line
of S.E. Burnside Street; thence leaving said Northerly right-of-
way line North 22 55'36" East 112.00 feet; thence South 67 04'24"
East 10.99 feet; thence South 22 55'36" West 112.00 feet to said
Northerly right-of-way line; thence tracing said Northerly right-
of-way line North 67 04'24" West 10.99 feet to the point of
beginning.
TOGETHER WITH a portion that begins at a point that bears South
22 55'36" West 31.67 feet from the most Northerly corner of said
parcel; thence South 45 45'15" East 60.92 feet; thence North
52 37'55" East 25.65 feet to the Southerly right-of-way line of
N.W. Fairview Drive; thence tracing said Southerly right-of-way
line South 42 39'55" East 30.18 feet; thence leaving said
Southerly right-of-way line South 52 23'08" West 16.19 feet;
thence South 36 54'33" West 115.27 feet; thence South 6 05'13"
East 22.82 feet; thence South 36 41'37" West 19.45 feet to the
Northerly right-of-way line of S.E. Burnside Street; thence
tracing said Northerly right-of-way line North 67 04'24" West
32.95 feet; thence leaving said Northerly right-of-way line North
36 42'41" East 4.70 feet; thence North 16 02'36" East 31.02 feet;
thence North 37 24'30" East 95.12 feet; thence North 45 02'30"
West 60.20 feet; thence North 22 55'36" East 27.11 feet to the
point of beginning.
Marie Callender Purchase Agreement Lessee /s/ SJ Lessor /s/ RPJ
5/28/99
EXHIBIT "A-2" TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION OF PREMISES
(Henderson, NV)
Being a division of Lot One (1) as shown upon the FINAL MAP OF
GALLERIA COMMONS (a Commercial Subdivision), as depicted in Book
79, Page 48 of Plats, Official Records, Clark County, Nevada,
also being a portion of the West Half (W 1/2) of the Southwest
Quarter (SW 1/4) of Section 3, Township 22 South, Range 62 East,
M.D.M., City of Henderson, Clark County, Nevada, more
particularly described as follows:
COMMENCING at the West Quarter Corner (W 1/4 Cor), of said
Section 3, said corner being common to Sections 3 and 4;
Thence South OO l4'06" West along the West line of said Section
3, a distance of 808.13 feet;
Thence North 88 55'32" East, a distance of 50.01 feet to a point
on the Easterly right-of-way line of Stephanie Street;
Thence South 00 14'06" West along said Easterly right-of-way
line, a distance of 585.62 feet;
Thence South 89 45'54" East, a distance of 20.00 feet to the
Point of Beginning;
Thence North 88 51'28" East, a distance of 147.22 feet;
Thence South 01 05'43" East, a distance of 108.33 feet;
Thence South 88 51'28" West, a distance of 2.92 feet;
Thence South 00 36'35" East, a distance of 179.31 feet;
Thence South 89 56'32" West, a distance of 149.41 feet;
Thence North 00 14'06" East, a distance of 284.89 feet to the
True Point of Beginning.
Marie Callender Purchase Agreement Lessee /s/SJ Lessor /s/ RPJ
5/28/99
EXHIBIT "A-3" TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION
(Amarillo, TX)
Marie Callender Purchase Agreement Lessee /s/ SJ Lessor /s/ RPJ
5/28/99
EXHIBIT "A-3" TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION
(Amarillo, Texas)
A 1.303 Acre (56,750 sq. Ft.) tract of land out of Lot 12, Block
5, Lawrence Place Unite No. 25, an Addition to the City of
Amarillo, as recorded in Volume 2328, Page 539, Official Public
Records of Potter County, said 1.303 acre tract being more
particularly described by metes and bounds as follows:
Beginning at a sawed "X" in the South right-of-way line of
Wolflin Avenue, the Northwest corner and Point of Beginning of
this tract, same being the Northwest corner of said Lote 12;
Thence N 90 00' 00" E (Base Bearing from previously recorded
plat) along the South right-of-way line of said Wolflin Avenue,
184.58 feet to 1/2 "X 24" rebar with cap stamped "S.H. PLS 4895",
the Northeast corner of this tract;
Thence S 00 00' 31" E, a distance of 157.88 feet to a 1/2" rebar
with cap stamped "S.H. PLS 4895", the Southeast corner of this
tract;
Thence S 00 05' 48" E, a distance of 150.90 feet to a 1/2" rebar
in the North right-of-way line of Interstate Highway No. 40, a
Southeast corner of this tract;
Thence N 89 12' 56" W along the North right-of-way line of said
Interstate Highway No. 40, a distance of 184.65 feet to a 1/2"
rebar with Thomas cap, the Southwest corner of this tract;
Thence N 00 02' 32" W, a distance of 306.25 feet to the Point of
Beginning of this tract;
Said tract contains a computed area of 1.303 acres (56,750 sq.
Ft) of land more or less.
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into
effective as of the _________ day of _________ , 1999 by and
between AEI Fund Management, Inc. (or its assigns) ("AEI "), a
Minnesota corporation whose principal business address is 1300
Minnesota World Trade Center, 30 East Seventh Street, St. Paul,
Minnesota 55101 ("Lessor"), and MARIE CALLENDER PIE SHOPS, INC.,
a California corporation ("Lessee"), whose principal business
address is 1100 Town & Country Road, Suite 1300, Orange,
California 92868.
WITNESSETH
WHEREAS, Lessor is the fee owner of a certain parcel of real
property and improvements located at ___________ and legally
described in Exhibit "A," which is attached hereto and
incorporated herein by reference; and
WHEREAS, Lessee desires to lease said real property and
building and improvements thereon (hereinafter referred to as the
"Leased Premises") from Lessor upon the terms and conditions
hereinafter provided;
NOW, THEREFORE, in consideration of the Rents, terms,
covenants, conditions, and agreements hereinafter described to be
paid, kept, and performed by Lessee, Lessor does hereby grant,
demise, lease, and let unto Lessee, and Lessee does hereby take
and hire from Lessor and does hereby covenant, promise, and agree
as follows:
ARTICLE 1. LEASED PREMISES
Lessor hereby leases to Lessee, and Lessee leases and takes
from Lessor, the Leased Premises subject to the conditions of
this Lease.
ARTICLE 2. TERM
A. The term of this Lease ("Term") shall be fifteen (15)
consecutive "Lease Years", as hereinafter defined, commencing on
__________________________, 1999 ("Commencement Date").
B. The first "Lease Year" of the Term shall be for a period of
twelve (l2) consecutive calendar months from the Commencement
Date. If the Commencement Date shall be other than the first day
of a calendar month, the first "Lease Year" shall be the period
from the Commencement Date to the end of the calendar month of
the Commencement Date, plus the following twelve (l2) calendar
months. Each Lease Year after the first Lease Year shall be a
successive period of twelve (l2) calendar months.
C. The parties agree that upon the request of either party, a
short form or memorandum of this Lease will be executed for
recording purposes which will set forth the actual occupancy and
termination dates of the Term and optional Renewal Terms, as
defined in Article 28 hereof, and the existence of the right of
first refusal, and that said right shall terminate when this
Lease is terminated, whichever occurs first.
ARTICLE 3. IMPROVEMENTS
A. Lessee warrants and agrees that the Building has been
constructed on the Leased Premises, and all other improvements to
the land, including the parking lot, approaches,
Marie Callender Lease Lessee /s/ SJ Lessor /s/ RPJ
5/28/99
and service areas, have been constructed in all material respects
by Lessee substantially in accordance with the plot, plans, and
specifications provided to Lessor.
B. Lessee represents that Lessee has received no notice from a
governmental agency of applicable jurisdiction that the Building
or other improvements to the land is in violation of an
applicable law, ordinance or regulation. Lessee understands, and
agrees, that if the Building contains any existing violations of
applicable law, ordinance or regulation, it shall be Lessee's
obligation to remedy the same all at Lessee's cost and expense.
C. Lessee agrees to pay, if not already paid in full, for all
architectural fees and actual construction costs incurred by
Lessee to construct the Building and other related improvements
on the Leased Premises, in the past, present or future, which
shall include, but not be limited to, plans and specifications,
general construction, carpentry, electrical, plumbing, heating,
ventilating, air conditioning, decorating, equipment
installation, outside lighting, curbing, landscaping,
blacktopping, electrical sign hookup, conduit and wiring from
building, fencing, and parking curbs for improvements made by, or
at the direction of, Lessee.
D. On the Commencement Date, Lessee shall be deemed to have
accepted Leased Premises and acknowledged that the premises are
in the condition described under this Lease.
ARTICLE 4. RENT PAYMENTS
A. Lessee shall pay as fixed rental ("Base Rent") for the
Leased Premises during the first five years of Term hereof the
sum of $___________ per year, in equal monthly installments
("Monthly Rent") of $___________.
In the sixth and eleventh Lease Years, the Base Rent due and
payable shall increase by an amount equal to five percent (5.0%)
of the Base Rent payable for the immediately prior Lease Year.
For each Renewal Term Lessee shall pay Base Rent, in monthly
installments of Monthly Rent, in the amounts as follows:
PERIOD BASE RENT
YEARS 16 THROUGH 20: 115% of the Base Rent payable in
the first full Lease Year. years one
through five.
YEARS 21 THROUGH 25: 120% of the Base Rent payable in
the first full Lease Year.
YEARS 26 THROUGH 30: 125% of the Base Rent payable in
the first full Lease Year.
The Monthly Rent shall be paid in advance to Lessor (or its
designees) on the first day of each month in equal monthly
installments, any partial month to be prorated based upon a
thirty (30) day month. Monthly Rent shall commence on the
Commencement Date.
B. Overdue Payments.
Lessee shall pay interest on all overdue payments of Rent or
other monetary amounts due hereunder at the rate of ten percent
(10%) per annum commencing seven (7) days after Lessee's receipt
of Lessor's written notice stating such Rent or other monetary
amounts are past due.
Marie Callender Lease Lessee /s/ SJ Lessor /s/ RPJ
5/28/99
ARTICLE 5. INSURANCE AND INDEMNITY
A. Lessee shall, throughout the Term or Renewal Terms, if any,
of this Lease, at its own cost and expense, procure and maintain
insurance which covers the Leased Premises and improvements
against fire, wind, and storm damage (including flood insurance
if the Leased Premises is in a federally designated flood prone
area) and such other risks (including earthquake insurance, if
the Leased Premises is located in a federally designated
earthquake zone or in an ISO high risk earthquake zone) as may be
included in the broadest form of all risk, extended coverage
insurance as may, from time to time, be available in amounts
sufficient to prevent Lessor or Lessee from becoming a co-insurer
within the terms of the applicable policies. In any event, the
insurance shall not be less than one hundred percent (100%) of
the then insurable value with commercially reasonable
deductibles, which deductibles shall, in any event, be not more
than $100,000. Additionally, replacement cost endorsements,
vandalism endorsement, malicious mischief endorsement, waiver of
subrogation endorsement, waiver of co-insurance or agreed amount
endorsement (if available) and Building Ordinance Compliance
endorsement, and Rent loss endorsements (for a period of 90 days)
shall be obtained.
B. Lessee agrees to place and maintain throughout the Term or
Renewal Terms, if any, of this Lease, at Lessee's own expense,
public liability insurance with respect to Lessee's use and
occupancy of the Leased Premises, including "Dram Shop" or liquor
liability insurance, if the same shall be or become available in
the State where the Leased Premises are located, with initial
limits of at least $2,000,000 per occurrence with $3,000,000
general aggregate (inclusive of umbrella coverage).
C. Lessee agrees to notify Lessor in writing if Lessee is
unable to procure all or some part of the aforesaid insurance. In
the event Lessee fails to provide all insurance required under
this Lease, Lessor shall have the right, but not the obligation,
to procure such insurance on Lessee's behalf, following seven (7)
business days written notice to Lessee of Lessor's intent to do
so (unless insurance then in place would lapse during such
period, or already has lapsed, in which case no notice need be
given) and Lessee may obtain such insurance during said seven (7)
day period and not then be in default hereunder. If Lessor shall
obtain such insurance, Lessee will then, within five (5) business
days from receiving written notice, pay Lessor the amount of the
premiums due or paid, together with interest thereon at 10% per
annum which amount shall be considered Rent payable by Lessee in
addition to the Rent defined at Article 4 hereof.
D. All policies of insurance provided for or contemplated by
this Article can be under Lessee's blanket insurance coverage and
shall name Lessor, Lessor's corporate general partner, and Robert
P. Johnson, any mortgagee, and Lessee as additional insured and
loss payee as their respective interests (as landlord and lessee,
respectively) may appear, and shall provide that the policies
cannot be canceled, terminated, changed, or modified without
thirty (30) days written notice to the parties. In addition, all
of such policies shall be in place on or before the Commencement
Date and contain endorsements by the respective insurance
companies waiving all rights of subrogation, if any, against
Lessor. The coverages required in this Section may be subject to
LesseeOs customary deductible or retention, but not to exceed
$100,000. All insurance companies providing coverages must be
rated "A" or better by Best's Key Rating Guide (the most current
edition), or similar quality under a successor guide if Best's
Key Rating shall cease to be published. Lessee shall maintain
legible copies of any and all policies and endorsements
Marie Callender Lease Lessee /s/ SJ Lessor /s/ RPJ
5/28/99
required herein, to be made available for Lessor's review and
photocopy upon Lessor's reasonable request from time to time. On
the Commencement Date and no less than fifteen (15) business days
prior to expiration of such policies, Lessee shall provide Lessor
with legible copies of any and all renewal Certificates of
Insurance reflecting the above terms of the Policies (including
endorsements).
Lessee agrees that it will not settle any property insurance
claims affecting the Leased Premises in excess of $250,000
without Lessor's prior written consent, such consent not to be
unreasonably withheld or delayed. Notwithstanding the foregoing,
Lessor shall consent to any settlement of an insurance claim
wherein Lessee shall confirm in writing with evidence reasonably
satisfactory to Lessor that Lessee has sufficient funds available
to complete the rebuilding of the Premises.
E. Lessee shall defend, indemnify, and hold Lessor harmless
against any and all claims, damages, and lawsuits arising after
the Commencement Date of this Lease and any orders, decrees or
judgments which may be entered therein, brought for damages or
alleged damages resulting from any injury to person or property
or from loss of life sustained in or about the Leased Premises,
unless such damage or injury results from the intentional
misconduct or the gross negligence of Lessor, its employees,
agents or contractors, and Lessee agrees to save Lessor harmless
from, and indemnify Lessor against, any and all injury, loss, or
damage, of whatever nature, to any person or property caused by,
or resulting from any act, omission, or negligence of Lessee or
any employee or agent of Lessee. In addition, Lessee hereby
releases Lessor from any and all liability for any loss or damage
caused by fire or any of the extended coverage casualties, unless
such fire or other casualty shall be brought about by the
intentional misconduct or negligence of Lessor, its employees,
agents or contractors. In the event of any loss, damage, or
injury caused by the joint negligence or willful misconduct of
Lessor and Lessee, they shall be liable therefor in accordance
with their respective degrees of fault.
F. Lessor hereby waives any and all rights that it may have to
recover from Lessee damages for any loss occurring to the Leased
Premises by reason of any act or omission of Lessee; provided,
however, that this waiver is limited to those losses for which
Lessor is compensated by its insurers, if the insurance required
by this Lease is maintained. Lessee hereby waives any and all
right that it may have to recover from Lessor damages for any
loss occurring to the Leased Premises by reason of any act or
omission of Lessor; provided, however, that this waiver is
limited to those losses for which Lessee is, or should be if the
insurance required herein is maintained, compensated by its
insurers.
ARTICLE 6. TAXES, ASSESSMENTS AND UTILITIES
A. Lessee shall be liable and agrees to pay the charges for all
public utility services rendered or furnished to the Leased
Premises, including heat, water, gas, electricity, sewer, sewage
treatment facilities and the like, all personal property taxes,
real estate taxes, special assessments, and municipal or
government charges, general, ordinary and extraordinary, of every
kind and nature whatsoever, which may be levied, imposed, or
assessed against the Leased Premises, or upon any improvements
thereon, at any time after the Commencement Date of this Lease
for the period prior to the expiration of the term hereof, or any
Renewal Term, if exercised.
B. Lessee shall pay all real estate taxes, assessments for
public improvements or benefits, and, except as otherwise
provided below, other governmental impositions, duties, and
charges of every kind and nature whatsoever which shall or may,
during the term of this Lease, be charged, laid, levied,
assessed, or imposed upon, or become a lien or liens upon the
Leased Premises or any part thereof. Such payments shall be
considered as Rent paid by Lessee in addition to the Rent defined
at Article 4 hereof. Nothing herein shall be deemed or construed
to require Lessee to pay or discharge any tax which may be levied
by any governmental authority upon the income, profits, or
business of Lessor,
Marie Callender Lease Lessee /s/ SJ Lessor /s/ RPJ
5/28/99
including rent due Lessor hereunder, or any personal property
taxes, franchise, inheritance or estate bases, or taxes upon
inheritance or right of succession which may be levied against
any estate or interest of Lessor.
C. All real estate taxes, assessments for public improvements
or benefits, water rates and charges, sewer rents, and other
governmental impositions, duties, and charges which shall become
payable for the first and last tax years of the term hereof shall
be apportioned pro rata between Lessor and Lessee in accordance
with the respective number of months during which each party
shall be in possession of the Leased Premises (or through the
expiration of the term hereof, if longer) in said respective tax
years. Lessee shall pay within 60 days of the expiration of the
term hereof Lessor's reasonable estimate of Lessee's pro-rata
share of real estate taxes for the last tax year of the term
hereof, based upon the last available tax bill. Lessor shall give
Lessee notice of such estimated pro-rata real estate taxes no
later than 75 days from the end of the term hereof. Upon receipt
of the actual statement of real estate taxes for such prorated
period, Lessor shall either refund to Lessee any over payment of
the pro-rata Lessee obligation, or shall assess and Lessee shall
pay promptly upon notice any remaining portion of the LesseeOs
pro-rata obligation for such real estate taxes.
D. Lessee shall have the right to contest or review by legal
proceedings or in such other manner as may be legal (which, if
instituted, shall be conducted solely at Lessee's own expense)
any tax, assessment for public improvements or benefits, or other
governmental imposition aforementioned, upon condition that,
before instituting such proceeding Lessee shall pay (under
protest) such tax or assessments for public improvements or
benefits, or other governmental imposition, duties and charges
aforementioned, unless such payment would act as a bar to such
contest or interfere materially with the prosecution thereof and
in such event Lessee shall post with Lessor alternative security
reasonably satisfactory to Lessor. In the event of any reduction,
cancellation, or discharge, Lessee shall pay the amount that
shall be finally levied or assessed against the Leased Premises
or adjudicated to be due and payable, and, if there shall be any
refund payable by the governmental authority with respect
thereto, Lessee shall be entitled to receive and retain the
refund, subject, however, to apportionment as provided during the
first and last years of the term of this Lease.
E. Lessor, within sixty (60) days after notice to Lessee if
Lessee fails to commence such proceedings, may, but shall not be
obligated to, contest or review by legal proceedings, or in such
other manner as may be legal, and at Lessor's own expense, any
tax, assessments for public improvements and benefits, or other
governmental imposition aforementioned, which shall not be
contested or reviewed, as aforesaid, by Lessee, and unless Lessee
shall promptly join with Lessor in such contest or review, Lessor
shall be entitled to recover the amount of such expenses from any
refund, but not more than the refund, payable by the governmental
authority with respect thereto.
F. Lessor shall not be required to join in any proceeding
referred to in this Article, unless in Lessee's reasonable
opinion, the provisions of any law, rule, or regulation at the
time in effect shall require that such a proceeding be brought by
and/or in the name of Lessor, in which event Lessor shall upon
written request, join in such proceedings or permit the same to
be brought in its name, all at no cost or expense to Lessor.
G. Within thirty (30) days after Lessor notifies Lessee in
writing that Lessor has paid such amount, Lessee shall also pay
to Lessor, as additional Rent, the amount of any sales tax or
excise tax, on Rents imposed by the State where the Leased
Premises are located.
Marie Callender Lease Lessee /s/ SJ Lessor /s/ RPJ
5/28/99
ARTICLE 7. PROHIBITION ON ASSIGNMENTS AND SUBLETTING
A. Except as otherwise expressly provided in this Article,
Lessee shall not, without obtaining the prior written consent of
Lessor, in each instance:
1. assign or otherwise transfer this Lease, or any part of
Lessee's right, title or interest therein;
2. sublet all or any part of the Leased Premises or allow
all or any part of the Leased Premises to be used or occupied by
any other Persons (herein defined as a Party other than Lessee,
be it a corporation, a partnership, an individual or other
entity); or
3. mortgage, pledge or otherwise encumber this Lease, or
the Leased Premises.
B. For the purposes of this Article:
The transfer of voting control of any class of capital stock
of any corporate Lessee or sublessee, or the transfer voting
control of the total interest in any other person which is a
Lessee or sublessee, however accomplished, whether in a single
transaction or in a series of related or unrelated transactions,
shall be deemed an assignment of this Lease, or of such sublease,
as the case may be;
1. an agreement by any other Person, directly or
indirectly, to assume Lessee's obligations under this Lease shall
be deemed an assignment;
2. any Person to whom Lessee's interest under this Lease
passes by operation of law, or otherwise, shall be bound by the
provisions of this Article.
3. each material modification, amendment or extension or any
sublease to which Lessor has previously consented shall be deemed
a new sublease; and
4. Lessee shall present the signed consent to such
assignment and/or subletting from any guarantors of this Lease,
such consent to be in form and substance reasonably satisfactory
to Lessor.
Lessee agrees to furnish to Lessor within ten (10) business
days following demand at any time such information and assurances
as Lessor may reasonably request that neither Lessee, nor, to
Lessee's knowledge, any previously permitted sublessee or
assignee, has violated the provisions of this Article.
C. If Lessee agrees to assign this Lease or to sublet all or
any portion of the Leased Premises, Lessee shall, prior to the
effective date thereof (the "Effective Date"), deliver to Lessor
executed counterparts of any such agreement with the proposed
assignee or sublessee, as applicable.
Lessor agrees that its consent to any other proposed
assignment or sublet shall not be unreasonably withheld or
delayed, provided Lessor is given prior written notice of such
sublease or assignment, accompanied by a copy of such sublease or
assignment, and the consent of Lessee (such consent to be in form
and substance satisfactory to Lessor) to such assignment or
sublet, affirming its continued liability hereunder.
Marie Callender Lease Lessee /s/ SJ Lessor /s/ RPJ
5/28/99
D. Notwithstanding anything in this Lease to the contrary,
Lessee shall have the right to assign this Lease, or sublet the
Premises or any portion thereof, without the consent of Lessor:
1. to any corporation with which Lessee may merge or
consolidate, which acquires all or substantially all of the
shares of stock or assets of Lessee or which is a parent or
subsidiary of Lessee, or which is the successor corporation in
the event of a corporate reorganization, or
2. to any person, entity, partnership, or corporation
which acquires a majority of Lessee's restaurants, or a majority
of Lessee's restaurants in the state in which the Premises are
located, or
3. to a franchisee of Lessee.
Any such assignment or sublease shall not relieve
Lessee or any guarantor of liability under this Lease unless
expressly approved in writing by Lessor.
ARTICLE 8. REPAIRS AND MAINTENANCE
A. Lessee covenants and agrees to keep and maintain in good
order, condition and repair the interior and exterior of the
Leased Premises during the term of the Lease, or any renewal
terms, and further agrees that Lessor shall be under no
obligation to make any repairs or perform any maintenance to the
Leased Premises. Lessee covenants and agrees that it shall be
responsible for all repairs, alterations, replacements, or
maintenance of, including but without limitation to or of: the
interior and exterior portions of all doors; door checks and
operators; windows; plate glass; plumbing; water and sewage
facilities; fixtures; electrical equipment; interior walls;
ceilings; signs; roof; structure; interior building appliances
and similar equipment; heating and air conditioning equipment and
any equipment owned by Lessor and leased to Lessee hereunder, as
itemized on Exhibit B attached hereto and incorporated herein by
reference and, further, agrees to replace any of such Lessor's
equipment as necessary. Lessee further agrees to be responsible
for, at its own expense, snow removal, lawn maintenance,
landscaping, maintenance of the parking lot (including parking
lines, seal coating, and blacktop surfacing), within the Leased
Premises and other similar items.
B. If Lessee refuses or neglects to commence or complete
repairs promptly and adequately, after prior written notice as
required under Article 16(B) (except in cases of emergency to
prevent waste or preserve the safety of the Leased Premises, in
which case no notice need be given), Lessor may cause such
repairs to be made, but shall not be required to do so, and
Lessee shall pay the cost thereof to Lessor within seven (7)
business days following demand. It is understood that Lessee
shall pay all expenses and maintenance and repair during the term
of this Lease. If Lessee is not then in default of this lease
beyond the applicable cure period following notice from Lessor,
Lessee shall have the right to make repairs and improvements to
the Leased Premises without the prior written consent of Lessor
if such repairs and improvements (1) are nonstructural and do not
exceed $150,000 in cost or (2) affect the structural integrity of
the Leased Premises but do not exceed One Hundred Thousand
Dollars ($100,000.00) in cost. Lessor's consent to all other
repairs or improvements shall not be unreasonably withheld or
delayed. All alterations and additions to the Leased Premises
shall be made in accordance with all applicable laws and shall
remain for the benefit of Lessor, except for Lessee's moveable
trade fixtures. In the event of making such alterations as herein
provided, Lessee further agrees to indemnify and save harmless
Lessor from all expense, liens, claims or damages to either
persons or property or the Leased Premises which may arise
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out of or result from the undertaking or making of said repairs,
improvements, alterations or additions, or Lessee's failure to
make said repairs, improvements, alterations or additions.
ARTICLE 9. COMPLIANCE WITH LAWS AND REGULATIONS
Lessee will comply with all statutes, ordinances, rules,
orders, regulations and requirements of all federal, state, city
and local governments, and with all rules, orders and regulations
of the applicable Board of Fire Underwriters which affect the use
of the improvements. Lessee will comply with all easements,
restrictions, and covenants of record against or burdening the
Leased Premises.
ARTICLE 10. SIGNS
Lessee shall have the right to install and maintain a sign
or signs advertising Lessee's business, provided that the signs
conform to law, and further provided that the sign or signs
conform specifically to the written requirements of the
appropriate governmental authorities.
ARTICLE 11. SUBORDINATION
A. Lessor reserves the right and privilege to subject and
subordinate this Lease at all times to the lien of any mortgage
or mortgages now or hereafter placed upon Lessor's interest in
the Leased Premises and on the land and buildings of which said
premises are a part, or upon any buildings hereafter placed upon
the land of which the Leased Premises are a part, provided such
mortgagee shall execute a commercially reasonable subordination,
attornment and non-disturbance agreement with Lessee. Lessor also
reserves the right and privilege to subject and subordinate this
Lease at all times to any and all advances to be made under such
mortgages, and all renewals, modifications, extensions,
consolidations, and replacements thereof, provided such mortgagee
shall execute a commercially reasonable subordination, attornment
and non-disturbance agreement. In the event that the mortgagee,
beneficiary, or any other person, acquires title to the Premises
pursuant to the exercise of any remedy provided for in the
mortgage or deed of trust, this Lease shall not be terminated or
affected by said foreclosure or sale, or any such proceeding, and
the mortgagee or beneficiary shall agree that any sale of the
Premises pursuant to the exercise of any rights and remedies
under the mortgage, deed of trust or otherwise, shall be made
subject to this Lease and the rights of the Lessee hereunder.
Lessee agrees to attorn to the mortgagee, beneficiary or such
other person as its new lessor, and the Lease shall continue in
full force and effect as a direct Lease between Lessee and
mortgagee, beneficiary or such other person, upon all the terms,
covenants, and agreements set forth in this Lease.
B. Lessee covenants and agrees to execute and deliver, upon
demand, such further reasonable instrument or instruments
subordinating this Lease on the foregoing basis to the lien of
any such mortgage or mortgages as shall be desired by Lessor and
any proposed mortgagee or proposed mortgagees, provided such
mortgagee shall execute a commercially reasonable subordination,
attornment and non-disturbance agreement with Lessee.
ARTICLE l2. CONDEMNATION OR EMINENT DOMAIN
A. If the hole of the Leased Premises are taken by any public
authority, ("Condemnor") under the power of eminent domain, or by
private purchase in lieu thereof ("Condemnation"), then this
Lease shall automatically terminate upon the date possession is
surrendered, and Rent shall be paid up to that day.
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B. Lessee shall have the right to elect to terminate the Lease
if a Condemnor by Condemnation acquires any of the following:
1. any material portion of the restaurant building,
2. in excess of fifteen percent (15%) of the parking
spaces within the Leased Premises, or
3. Any taking which would prohibit or materially interfere
with Lessee's using the Leased Premises as a
restaurant.
In the event that this Lease shall terminate or be terminated,
the Rent shall, if and as necessary, be paid up to the day that
possession of the Leased Premises was surrendered.
C. If any part of the building or more than 15% of the parking
spaces within the Leased Premises shall be so taken but Lessee
does not elect to terminate this Lease, then Lessee shall, with
the use of the condemnation proceeds which Lessor shall make
available to Lessee, but otherwise at Lessee's own cost and
expense, restore the remaining portion of the Leased Premises to
the extent necessary to render it reasonably suitable for the
purposes for which it was leased. Lessee shall make all repairs
to the building in which the Leased Premises is located to the
extent necessary to constitute the building a complete
architectural unit. Provided, further, the cost thereof to Lessor
shall not exceed the proceeds of the condemnation award, all to
be done without any adjustments in Rent to be paid by Lessee.
This Lease shall be deemed amended to reflect the taking in the
legal description of the Leased Premises.
D. All compensation for real property awarded or paid upon such
total or partial taking of the Leased Premises shall belong to
and be the property of Lessor without any participation by
Lessee, whether such damages shall be awarded as compensation for
diminution in value to the leasehold or to the fee of the
premises herein leased. Nothing contained herein shall be
construed to preclude Lessee from prosecuting any claim in such
proceedings for loss of business or goodwill, damage to or loss
of value or cost of removal of inventory, trade fixtures,
furniture, and other personal property belonging to Lessee;
provided, however, that no such claim shall diminish Lessor's
award.
E. If the Premises becomes subject to Condemnation for a period
of less than one (1) year, then this shall constitute a temporary
Condemnation, during which time all the provisions of this Lease
shall remain in full force and effect. Lessee shall be entitled
to compensation from the Condemnor if allowable or against the
total award for the taking of a construction easement, for
interruption of Lessee's business and such other relief as
provided by law as a result of any such temporary Condemnation.
ARTICLE 13. RIGHT TO INSPECT
Lessor reserves the right to enter upon, inspect and examine
the Leased Premises at any time during business hours, after
reasonable notice to Lessee, and Lessee agrees to allow Lessor
free access to the Leased Premises, after reasonable notice to
Lessee, to show the Premises. At any time within ninety (90) days
of the expiration or termination of the Lease, Lessee agrees to
allow Lessor to then place "For Sale" or "For Rent" signs on the
Leased Premises. Lessor and Lessor's representatives shall at all
times while upon or about the Leased Premises observe and comply
with Lessee's reasonable health and safety rules, regulations,
policies and procedures. Lessor agrees to indemnify and hold
Lessee, its successors, assigns, agents and employees from and
against any liability, claims, demands, cause of action, suits
and other litigation or judgments of every kind and character,
including injury to or death of any person or persons, or
trespass to, or damage to, or loss or destruction of, any
property, whether real or personal, to the extent
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resulting from the gross negligence or willful misconduct or
Lessor or Lessor's representatives while upon or about the Leased
Premises.
ARTICLE 14. USE
From and after the Commencement Date, the Leased Premises
may be used as a restaurant. In any other case, after obtaining
Lessor's prior written consent, such consent not to be
unreasonably withheld or delayed, Lessee may conduct any lawful
business from the Leased Premises. Lessee acknowledges and agrees
that any other use without the prior written consent of Lessor
will constitute a default under and a violation and breach of
this Lease.
ARTICLE 15. DESTRUCTION OF PREMISES
If, during the term of this Lease, the Leased Premises are
totally or partially destroyed by fire or other elements, then,
except as provided in Section 15.B, within a reasonable time (but
in no event longer than one hundred eighty (180) days, (subject
to events beyond Lessee's control as provided in Article 36)
Lessee shall repair and restore the improvements so damaged or
destroyed as nearly as may be practical to their condition
immediately prior to such casualty. All rents payable by Lessee
shall be abated during the period of repair and restoration to
the extent that Lessor shall be compensated by the proceeds of
the rent loss insurance required to be maintained by Lessee
hereunder.
The insurance proceeds (exclusive of Lessee's deductible)
shall be used to reimburse Lessee for the cost of rebuilding or
restoration of the Leased Premises. Risk that the insurance
company shall be insolvent or shall refuse to make insurance
proceeds available shall be with Lessee. The Leased Premises
shall be so restored or rebuilt so as to be of at least equal
size, value and substantially the same character as prior to such
damage or destruction.
If the insurance proceeds (exclusive of Lessee's deductible)
are equal to, or less than, One Hundred Fifty Thousand Dollars
($150,000), they shall be paid to Lessee for such repair and
restoration. If the insurance proceeds are greater than or equal
to One Hundred Fifty Thousand Dollars ($150,000), they shall be
deposited by Lessee and Lessor into a customary construction
escrow at a nationally recognized title insurance company, or at
Lessee's option, with Lessor ("Escrowee") and shall be made
available from time to time to Lessee for such repair and
restoration. Reimbursements shall be made to Lessee upon delivery
to Escrowee of certificates or affidavits from Lessee's general
contractor showing amounts paid for reconstruction of the
improvements. If the proceeds held by Escrowee, when added to
Lessee's deductible, are not sufficient to pay the total cost of
restoration, then Lessee shall pay the difference between such
amounts and such total restoration cost.
Any sums, including interest, not disbursed by the Escrowee
after restoration of the improvements has been completed, shall
be paid to Lessee within ten (10) days after delivery to Escrowee
of Lessee's written request therefore.
Both parties shall promptly execute all reasonable documents
and perform all acts reasonably required by the Escrowee to allow
it to perform its obligations under this paragraph.
If during the last two (2) years of the remaining term of
this Lease or any of the option terms of this Lease, if any
further options to renew remain, the Leased Premises are damaged
or destroyed to the extent of fifty (50%) percent of its
replacement cost, or damaged or destroyed such that Lessee cannot
carry on business as a casual dining
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restaurant without being closed for more than ninety (90) days,
then Lessee may elect, within 30 days of such damage, to exercise
at least one (1) option to renew this Lease so that the remaining
term of the Lease is not less than five (5) years. If Lessee does
not elect to exercise such option to renew this Lease, or if no
option to renew remains, then this Lease shall terminate on the
earlier of Lessor's receipt of the insurance proceeds payable for
the damaged improvements, and the amount of the applicable
deductible or the expiration of the term of this Lease.
ARTICLE 16. ACTS OF DEFAULT
Each of the following shall be deemed a default by Lessee
and a breach of this Lease:
A. Failure to pay the Rent or any monetary obligation herein
reserved, within five (5) business days after receipt of written
notice from Lessor to cure the failure to pay the Rent or any
monetary obligation herein reserved.
B. Failure to do, observe, keep and perform any of the other
terms, covenants, conditions, agreements and provisions in this
Lease to be done, observed, kept and performed by within thirty
(30) days after written notice from Lessor specifying such
default, or within such longer time as may be reasonably
necessary if such default cannot reasonably be cured within
thirty (30) days, if Lessee is diligently pursuing a course of
conduct capable of curing such default, but in any event such
cure period shall not exceed 180 days after written notice from
Lessor of the default hereunder.
C. The abandonment by Lessee of the Leased Premises for thirty
(30) consecutive days, the adjudication of Lessee as a bankrupt,
the making by Lessee of a general assignment for the benefit of
creditors, the taking by Lessee of the benefit of any insolvency
act or law, the appointment of a permanent receiver or trustee in
bankruptcy for Lessee property, unless the petition for
bankruptcy is dismissed within sixty (60) days after filing, or
the appointment of a temporary receiver which is not vacated or
set aside within sixty (60) days from the date of such
appointment; provided, however, that the foregoing shall not
constitute events of default so long as Lessee continues to
otherwise satisfy its obligations (including but not limited to
the payment of Rent) hereunder.
ARTICLE 17. TERMINATION FOR DEFAULT
In the event Lessee fails to cure a default within the time
allowed in Section 16 after written notice from Lessor,] and at
any time thereafter Lessor may serve a written notice upon Lessee
that Lessor elects to terminate this Lease. This Lease shall then
terminate on the date so specified as if that date had been
originally fixed as the expiration date of the term herein
granted provided, however, that Lessee shall have continuing
liability for all future rents for the remainder of the then
present term as set forth in, and to the extent of, Article 19,
notwithstanding any earlier termination of the Lease hereunder
(except where Lessee has exercised a right to terminate where
granted herein), preserving unto Lessor the benefit of its
bargained-for rental payments.
ARTICLE 18. LESSOR'S RIGHT OF RE-ENTRY
In the event that this Lease shall be terminated as
hereinbefore provided, or by summary proceedings or otherwise, or
in the event of an uncured default hereunder by Lessee, or in the
event that the premises or any part thereof, shall be abandoned
by Lessee and Rent shall not be paid or other obligations
(including but not limited to repair and maintenance obligations)
of Lessee hereunder shall not be met, then Lessor or its agents,
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servants or representatives, may immediately or at any time
thereafter, re-enter and resume possession of the premises or any
part thereof, and remove all persons and property therefrom,
either by summary dispossess proceedings or by a suitable action
or proceeding at law, or otherwise but without breach of the
peace, without being liable for any damages therefor, except for
damages resulting from Lessor's negligence or willful misconduct.
Notwithstanding anything above to the contrary, if Lessee is
still in possession of the Leased Premises, Lessor agrees to use
such legal proceedings (summary or otherwise) prescribed by law
to regain possession of the Leased Premises.
ARTICLE 19. LESSEE'S CONTINUING LIABILITY
A. Should Lessor elect to re-enter as provided in this Lease or
should it take possession pursuant to legal proceedings or
pursuant to any notice provided for by law, Lessor shall
undertake commercially reasonable efforts to mitigate Lessee's
continuing liability hereunder as such efforts may be prescribed
by law or statute (which shall include listing the Leased
Premises with a licensed commercial real estate broker and
securing the property against waste, but shall not otherwise
include the expenditure of Lessor's funds, unless the same cannot
be waived between the parties hereto as herein provided and the
same shall be required by law or statute), and in addition,
Lessor may either (i) terminate this Lease or (ii) it may from
time to time, without terminating this Lease and the contractual
obligation of Lessee to pay Rent under this Lease, make such
alterations and repairs as may be necessary to relet the Leased
Premises or any part thereof for the remainder of the original
Term or any exercised Renewal Terms, at such Rent or Rents, and
upon such other terms and conditions as Lessor may reasonably
deem advisable. Termination of Lessee's right to possession by
Court Order shall be sufficient evidence of the termination of
Lessee's possessory rights under this Lease and under any
recorded memorandum of Lease, including termination of the Right
to Market under Article 34 of this Lease.
B. Upon each such reletting, without termination of the
contractual obligation of Lessee to pay Rent under this Lease,
all Rents received by Lessor shall be applied as follows:
1. First, to the payment of any indebtedness other than
Rent due hereunder from Lessee to Lessor;
2. Second, to the payment of any costs and expenses of
such reletting, including brokerage fees and attorney's fees and
of costs of such alterations and repairs;
3. Third, to the payment of Rent and other monetary
obligations due and unpaid hereunder;
4. Finally, the residue, if any, shall be held by Lessor
and applied in payment of future Rent as the same may become due
and payable hereunder.
If such Rents received from such reletting during any month
are less than that to be paid during that month by Lessee
hereunder, Lessee shall pay any such deficiency to Lessor. Such
deficiency shall be calculated and paid monthly. No such re-entry
or taking possession of such Leased Premises by Lessor shall be
construed as an election on its part to terminate Lessee's
contractual obligations under this Lease respecting the payment
of rent and obligations for the costs of repair and maintenance
unless a written notice of such intention be given to Lessee.
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C. Notwithstanding any such reletting without termination,
Lessor may at any time thereafter elect to terminate this Lease
for any uncured breach.
D. In addition to any other remedies Lessor may have under this
Article 19, Lessor may recover from Lessee all damages it may
actually incur by reason of any uncured breach, including: the
cost of recovering and reletting the Leased Premises; reasonable
attorney's fees; and, if Landlord terminates the Lease the
present value (discounted at a rate of 8% per annum) of the
excess of the amount of Rent and charges equivalent to Rent
reserved in this Lease for the remainder of the Term over the
then reasonable Rent value of the Leased Premises (or the actual
Rents receivable by Lessor, if relet), (the Lessee bearing the
burden of proof to demonstrate the amount of rental loss for the
same period, that through reasonable efforts to mitigate damages,
could have been avoided) for the remainder of the Term, all of
which amounts shall be immediately due and payable from Lessee to
Lessor in full. In the event that the Rent obtained from such
alternative or substitute tenant is more than the Rent which
Lessee is obligated to pay under this Lease, then such excess
shall be paid to Lessor provided that Lessor shall credit such
excess against the outstanding obligations of Lessee due pursuant
hereto, if any.
E. It is the object and purpose of this Article 19 that Lessor
shall be kept whole and shall suffer no damage by way of non-
payment of Rent or by way of diminution in Rent. Lessee hereby
waives any rights of re-entry it may have or any rights of
redemption or rights to redeem this Lease upon a termination of
this Lease.
ARTICLE 20. PERSONALTY, FIXTURES AND EQUIPMENT
A. All permanent building fixtures in or on the Leased
Premises paid for by Lessor including, but not limited to,
heating system, electrical wiring, lighting system, ventilating
system, plumbing system, and air conditioning system, shall be
the property of Lessor. All other movable fixtures, trade
fixtures, equipment and all other articles of personal property
owned by Lessee shall remain the property of Lessee.
B. Lessee shall furnish and pay for any and all equipment,
furniture, movable fixtures, trade fixtures, and signs, except
for such items, if any, described in Article 20(A) above, as
owned by Lessor.
C. At the end of the term of this Lease, the property described
at Article 20(B) above which is owned by Lessee, after written
notice to Lessor given at least ten (10) business days prior to
any proposed removal, may be removed from the Leased Premises by
Lessee regardless of whether or not such property is attached to
the Leased Premises so as to constitute a "fixture" within the
meaning of the law; however, all damages and repairs to the
Leased Premises which may be caused by the removal of such
property shall be paid for by Lessee.
ARTICLE 21. LIENS
Lessee shall not do or cause anything to be done whereby the
Leased Premises may be encumbered by any mechanic's or other
liens. Whenever and as often as any mechanic's or other lien is
filed against said Leased Premises purporting to be for labor or
materials furnished or to be furnished to Lessee, Lessee shall
remove the lien of record by payment or by bonding with a surety
company authorized to do business in the state in which the
property is located, within forty-five (45) days from the date of
the filing of said mechanic's or other lien and delivery of
notice thereof to Lessee. Should Lessee fail to take the
foregoing steps within said forty-five (45) day period (or in any
event, prior to the expiration of the time within which Lessee
may bond over such lien to remove it as a
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lien upon the Leased Premises), Lessor shall have the right,
among other things, to pay said lien without inquiring into the
validity thereof, and Lessee shall forthwith reimburse Lessor for
the total expense incurred by it in discharging said lien as
additional Rent hereunder.
ARTICLE 22. NO WAIVER BY LESSOR EXCEPT IN WRITING
No agreement to accept a surrender of the Leased Premises or
termination of this Lease shall be valid unless in writing signed
by Lessor. The delivery of keys to any employee of Lessor or
Lessor's agents shall not operate as a termination of the Lease
or a surrender of the premises. The failure of Lessor to seek
redress for violation of any rule or regulation, shall not
prevent a subsequent act, which would have originally constituted
a violation, from having all the force and effect of an original
violation. Neither payment by Lessee or receipt by Lessor of a
lesser amount than the Rent herein stipulated shall be deemed to
be other than on account of the earliest stipulated Rent. Nor
shall any endorsement or statement on any check nor any letter
accompanying any check or payment as Rent be deemed an accord and
satisfaction. Lessor may accept such check or payment without
prejudice to Lessor's right to recover the balance of such Rent
or pursue any other remedy provided in this Lease. This Lease
contains the entire agreement between the parties, and any
executory agreement hereafter made shall be ineffective to change
it, modify it or discharge it, in whole or in part, unless such
executory agreement is in writing and signed by the party against
whom enforcement of the change, modification or discharge is
sought.
ARTICLE 23. QUIET ENJOYMENT
Lessor covenants that Lessee, upon paying the Rent set forth
in Article 4 and all other sums herein reserved as Rent and upon
the due performance of all the terms, covenants, conditions and
agreements herein contained on Lessee's part to be kept and
performed, shall have, hold and enjoy the Leased Premises free
from molestation, eviction, or disturbance by Lessor, or by any
other person or persons lawfully claiming the same, and that
Lessor has good right to make this Lease for the full term
granted, including renewal periods.
ARTICLE 24. PAYMENT OF COSTS AND ATTORNEYS' FEES
Each party agrees to pay and discharge all reasonable costs,
and actual attorneys' fees, including but not limited to
attorney's fees incurred at the trial level and in any appellate
or bankruptcy proceeding, and expenses that shall be incurred by
the prevailing party in enforcing by civil action the covenants,
conditions and terms of this Lease or defending against an
alleged breach, including the costs of reletting. Such costs,
attorneys fees, and expenses if incurred by Lessor shall be
considered as Rent as due and owing in addition to any Rent
defined in Article 4 hereof.
ARTICLE 25. ESTOPPEL CERTIFICATES
Either party to this Lease will, at any time, upon not less
than ten (10) business days prior request by the other party,
execute, acknowledge and deliver to the requesting party a
statement in writing, executed by an executive officer of such
party, certifying that: (a) this Lease is unmodified (or if
modified then disclosure of such modification shall be made); (b)
this Lease is in full force and effect; (c) the date to which the
Rent and other charges have been paid; and (d) to the knowledge
of the signer of such certificate that the other party is not in
default in the performance of any covenant, agreement or
condition contained in this Lease, or if a default does exist,
specifying each such default of which the signer may have
knowledge. It is intended that any such statement delivered
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pursuant to this Article may be relied upon by any prospective
purchaser or mortgagee of the Leased Premises or any assignee of
such mortgagee or a purchaser of the leasehold estate.
ARTICLE 26. FINANCIAL STATEMENTS
During the term of this Lease, Lessee will, within one
hundred twenty (120) days after the end of Lessee's fiscal year,
or sooner if available, furnish its financial statements to
Lessor. Lessee's financial statements shall include, at a
minimum, a reviewed balance sheet and statement of operations,
and do not need to be prepared by an independent certified public
accountant, but shall be prepared in conformity with generally
accepted accounting principles (hereafter "GAAP") and be
represented and warranted in writing as true and correct by the
chief financial officer or other authorized officer of Lessee.
Additionally, during the term of the Lease, upon LessorOs written
request Lessee will within furnish Lessor with Lessee's financial
statements and operating statements of the Leased Premises the
last ended fiscal quarter. Said quarterly statements do not need
to be prepared by an independent certified public accountant, but
shall be represented and warranted in writing as true and correct
by the chief financial officer or other authorized officer of
Lessee. The financial statements shall conform to GAAP, and
include, at a minimum, a balance sheet and statement of
operations.
ARTICLE 27. OPTION TO RENEW
If this Lease is not previously canceled or terminated and
if Lessee and is not then in default beyond the applicable cure
period following LandlordOs notice of default, then Lessee shall
have the option to renew this Lease upon the same conditions and
covenants contained in this Lease for three (3) consecutive
periods of five (5) years each (singularly "Renewal Term").
Annual Base Rent during each Renewal Term shall be as set forth
in Section 4.A.
The first Renewal Term will commence on the day following
the date the original Term expires and successive Renewal Terms
would commence on the day following the last day of the then
expiring Renewal Term. Except as otherwise provided in Article 15
hereof, Lessee must give ninety (90) days written notice to
Lessor of its intent to exercise this option prior to the
expiration of the original Term of this Lease or any Renewal
Term, as the case may be.
ARTICLE 28. MISCELLANEOUS PROVISIONS
A. All written notices shall be given to Lessor or Lessee by
certified mail or nationally recognized overnight mail. Notices
to either party shall be addressed to the person and address
given on the first page hereof. Lessor and Lessee may, from time
to time, change these addresses by notifying each other of this
change in writing.
B. The terms, conditions and covenants contained in this Lease
and any riders and plans attached hereto shall bind and inure to
the benefit of Lessor and Lessee and their respective successors,
heirs, legal representatives, and assigns.
C. This Lease shall be governed by and construed under the laws
of the State where the Leased Premises are situated.
D. In the event that any provision of this Lease shall be held
invalid or unenforceable, no other provisions of this Lease shall
be affected by such holding, and all of the remaining provisions
of this Lease shall continue in full force and effect pursuant to
the terms hereof.
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E. The Article captions are inserted only for convenience and
reference, and are not intended, in any way, to define, limit,
describe the scope, intent, and language of this Lease or its
provisions.
F. In the event Lessee remains in possession of the Leased
Premises after the expiration of this Lease and without the
execution of a new lease and without Lessor's written permission,
Lessee shall be deemed to be occupying the Premises as a tenant
from month-to-month, subject to all the conditions, provisions,
and obligations of this Lease insofar as the same can be
applicable to a month-to-month tenancy except that the monthly
installment of Rent shall be One Hundred Fifty percent (150%) the
amount due on the last month prior to such expiration.
G. If any installment of Rent (whether lump sum, monthly
installments, or any other monetary amounts required by this
Lease to be paid by Lessee and deemed to constitute Rent
hereunder) shall not be paid within seven (7) business days after
notice from Landlord that such payment is past due, Lessor shall
have the right to charge Lessee a late charge of $500 for any
amount of Rent installment that remains unpaid after the second
such occurrence in any 12 month period.
H. All proceeds from any conveyance of a permanent easement
shall belong solely to Lessor.
I. For the purpose of this Lease, the term "Rent" shall be
defined as Rent under Article 4, and any other monetary amounts
required by this Lease to be paid by Lessee.
J. Lessee agrees to cooperate with Lessor to allow Lessor to
obtain and use at Lessor's expense promotional photographs of the
Leased Premises.
ARTICLE 30. REMEDIES
Notwithstanding anything contained herein it is the intent
of the parties that the rights and remedies contained herein
shall not be exclusive but rather shall be cumulative along with
all of the rights and remedies of the parties which they may have
at law or equity. Notwithstanding the foregoing, Lessor hereby
waives any statutory or common law landlordOs lien on LesseeOs
personal property.
ARTICLE 31. HAZARDOUS MATERIALS INDEMNITY
Lessee covenants, represents and warrants to Lessor, its
successors and assigns, (i) that it has not used or permitted and
will not use or permit the Leased Premises to be used, whether
directly or through contractors, agents or tenants, and to the
best of Lessee's knowledge and except as disclosed to Lessor in
writing, the Leased Premises has not at any time been used for
the generating, transporting, treating, storage, manufacture,
emission of, or disposal of any dangerous, toxic or hazardous
pollutants, chemicals, wastes or substances as defined in the
Federal Comprehensive Environmental Response Compensation and
Liability Act of 1980 ("CERCLA"), the Federal Resource
Conservation and Recovery Act of 1976 ("RCRA"), or any other
federal, state or local environmental laws, statutes,
regulations, requirements and ordinances ("Hazardous Materials");
(ii) to the best of Lessee's knowledge that there have been no
investigations or reports involving Lessee, or the Leased
Premises by any governmental authority which in any way pertain
to Hazardous Materials in or at the Leased Premises (iii) to the
best of Lessee's knowledge that the operation of the Leased
Premises has not violated and is not currently violating any
federal, state or local law, regulation, ordinance or requirement
governing Hazardous Materials; (iv) to the best of Lessee's
knowledge that the Leased
Marie Callender Lease Lessee /s/ SJ Lessor /s/ RPJ
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Premises is not listed in the United States Environmental
Protection Agency's National Priorities List of Hazardous Waste
Sites nor any other list, schedule, log, inventory or record of
Hazardous Materials or hazardous waste sites, whether maintained
by the United States Government or any state or local agency; and
(v) that the Leased Premises do not contain any formaldehyde,
urea or asbestos, except as may have been disclosed in writing to
Lessor by Lessee at the time of execution and delivery of this
Lease. Lessee agrees to indemnify and reimburse Lessor, its
successors and assigns, for:
A. any loss, damage, expense or cost arising out of or
incurred by Lessor which is the result of the above covenants,
representations and warranties, and
B. any and all liability of any kind whatsoever which
Lessor may, for any cause and at any time, sustain or incur by
reason of Hazardous Materials placed or released on the Leased
Premises by Lessee, together with all reasonable attorneys'
fees, costs and disbursements incurred in connection with the
defense of any action against Lessor arising out of the above.
These covenants, representations and warranties shall be deemed
continuing covenants, representations and warranties for the
benefit of Lessor, and any successors and assigns of Lessor and
shall survive expiration or sooner termination of this Lease. The
amount of all such indemnified loss, damage, expense or cost,
shall bear interest thereon at the lesser of 10% or the highest
rate of interest allowed by law and shall become immediately due
and payable in full on demand of Lessor, its successors and
assigns.
ARTICLE 32.
Upon a third monetary default for non-payment of taxes by
Lessee which remains uncured after the expiration of any
applicable notice and cure period, Lessee shall deposit with
Lessor on the first day of each and every month, an amount equal
to one twelfth (1/12th) of the estimated annual real estate
taxes, assessments and ("Charges") due on the Leased Premises.
From time to time out of such deposits Lessor will, upon the
presentation to Lessor by Lessee of the bills therefor, pay the
Charges or at Lessee's option, will upon presentation of
receipted bills therefor, reimburse Lessee for such payments made
by Lessee. In the event the deposits on hand shall not be
sufficient to pay all of the estimated Charges when the same
shall become due from time to time or the prior payments shall be
less than the currently estimated monthly amounts, then Lessee
shall pay to Lessor on demand any amount necessary to make up the
deficiency. The excess of any such deposits shall be credited to
subsequent payments to be made for such items. If a default or an
event of default shall occur under the terms of this Lease,
Lessor may, at its option, without being required so to do, apply
any Deposit on hand to cure the default, in such order and manner
as Lessor may elect.
ARTICLE 33. NET LEASE
Notwithstanding anything contained herein to the contrary it
is the intent of the parties hereto that this Lease shall be a
net lease and that the Rent defined pursuant to Article 4 should
be a net Rent paid to Lessor.
ARTICLE 34. RIGHT TO MARKET
Lessor, for itself, its successors and assigns, hereby gives
and grants to Lessee a right of first refusal (the "Right of
First Refusal") to purchase the Leased Premises, subject to the
following terms and conditions:
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(A) DURATION OF RIGHT OF FIRST REFUSAL. The Right of First
Refusal and all rights and privileges of Lessee hereunder shall
be in force for the term of this Lease until the expiration of
Lessee's right to possession.
(B) MANNER OF EXERCISING RIGHT OF FIRST REFUSAL. If Lessor
("Selling Lessor") shall desire to sell all or any portion of its
interest in the Leased Premises (subject to the terms of this
Lease), Selling Lessor shall give Lessee written notice of
Selling Lessor's intention to sell Selling Lessor's interest
(partial or whole) in the Leased Premises. Such notice ("Lessor's
Notice") shall give Selling Lessor's name and address and state a
price at which Selling Lessor intends to sell, and will sell, a
specified portion or all of its interest in the fee simple to the
Leased Premises. If Lessee shall fail to exercise its Right of
First Refusal as set forth herein, the terms of Article 34(E)
shall apply. For twenty (20) business days following the giving
of such notice, Lessee shall have the option to purchase for cash
such portion of the fee interest of the Selling Lessor at the
price stated in the Lessor's Notice. A written notice in
substantially the following form, addressed to Selling Lessor and
signed by Lessee and given, in accordance with the provisions of
Article 29(A) hereof, within the period for exercising the Right
of First Refusal, submitted with a bank cashier's check or money
order payable to the order of Selling Lessor in the amount of
$20,000 (the "Earnest Money") shall be an effective exercise of
Lessee's Right of First Refusal, to wit:
(date)
"We hereby exercise the Right of First Refusal to purchase
such portion of the fee interest of the Selling Lessor (as set
forth in Lessor's Notice) in the property commonly known as
_______________ , pursuant to the Right of First Refusal
contained in that certain Net Lease Agreement between us
pertaining to said premises."
(C) TERMS OF SALE IF RIGHT OF FIRST REFUSAL EXERCISED. Upon
Lessee's exercise of the Right of First Refusal in accordance
with the provisions of subparagraph (B) hereof, Selling Lessor
shall be obligated to sell and convey by recordable general
warranty deed, good and indefeasible title to its interest in the
Leased Premises (or such portion thereof as set forth in Lessor's
Notice) subject only to the matters affecting title which were of
record at the time Selling Lessor came into title to the Leased
Premises and those matters which Lessee created, suffered or
permitted to accrue during the term hereof, and Lessee shall be
obligated to purchase such Lessor's interest upon the following
terms and conditions:
(i) PRICE. The price "Purchase Price" at which Selling
Lessor shall sell and Lessee shall purchase the Leased
Premises shall be the price stated in Lessor's Notice.
(ii) CLOSING. Closing shall be sixty (60) days after
the expiration of the twenty days within which Lessee
may exercise its Right of First Refusal, unless the
parties mutually agree otherwise. The Purchase Price,
less credit for the Earnest Money and any other credits
to which Lessee is entitled hereunder, shall be
tendered in cash or other certified funds by Lessee at
Closing.
(iii) EVIDENCE OF TITLE. Not less than ten (10)
days prior to closing, Selling Lessor shall obtain a
commitment for an ALTA owner's policy of title
insurance dated within thirty (30) days of the closing
date, issued by a nationally recognized title insurance
company selected by Selling Lessor (the "Title
Company") in the amount of the Purchase Price
determined pursuant to subparagraph (C)(i) above,
naming Lessee as the proposed insured, and covering the
fee simple title to the Leased Premises, and showing
Selling Lessor vested with good title to portion of
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the Leased Premises being sold, subject only to
the matters affecting title which were of record at the
time Selling Lessor came into title to the Leased
Premises and those matters which Lessee created,
suffered or permitted to accrue during the term hereof.
Such title commitment shall be conclusive evidence of
good title. If Lessee shall make objection to the
marketability of title, Selling Lessor shall have no
obligation to make title marketable, but may withdraw
Lessor's notice of intent to market the Premises.
(iv) PRORATIONS. Selling Lessor shall pay the cost of
the aforesaid title policy and any and all state and
municipal taxes imposed by law on the transfer of the
title to the Leased Premises, or the transaction
pursuant to which such transfer occurs. Water, sewer
and other utility charges, if any, which are not
metered, driveway permit charges, if any, general real
estate taxes, and other similar items, shall be
adjusted ratably as of the Closing, except to the
extent otherwise settled between the parties pursuant
to other provisions of this Lease. A prorated portion
of the Rent prepaid by Lessee for the month of closing
shall be credited toward the Purchase Price and Lessee
shall be given a credit for rent prepaid for any period
after the month in which the Closing occurs. Otherwise,
Lessee shall not receive a credit against the Purchase
Price for Rent paid hereunder.
(v) ESCROW CLOSING. At the election of Selling Lessor
or Lessee upon notice to the other party not less than
five (5) days prior to the Closing, this sale shall be
closed through an escrow with the Title Company, in
accordance with the general provisions of the usual
form of Deed and Money Escrow Agreement then is use by
said company, with such special provisions inserted in
the escrow agreement as may be required to conform with
this agreement. Upon the creation of such an escrow,
anything herein to the contrary notwithstanding, paying
of the purchase price and delivery of the deed shall be
made through the escrow. The cost of the escrow shall
be divided equally between the Selling Lessor and
Lessee. If for any reason other than Lessee's default,
the transaction fails to close, the Earnest Money shall
be returned to Lessee forthwith.
(vi) REMEDIES ON DEFAULT. If Lessee defaults under the
provisions of this subparagraph 34(C), Selling Lessor
shall have the right to annul the provisions of this
paragraph 34 by giving Lessee notice of such election,
provided that Selling Lessor has first notified Lessee
of such default and Lessee has failed to cure the same
within ten (10) days after such notice. Upon Selling
Lessor's notice of annulment in accordance herewith,
the Earnest Money shall be forfeited and paid to
Selling Lessor as liquidated damages, which shall be
Selling Lessor's sole and exclusive remedy. If Selling
Lessor defaults under the provisions of this
subparagraph 34(C) and fails to cure such default
within ten (10) days after being notified of the same
by Lessee, then in such event, (i) the Earnest Money at
Lessee's election and immediately upon its demand shall
be returned to Lessee, which return shall not, however,
in any way release or absolve Selling Lessor from its
obligations hereunder and (ii) Lessee shall be entitled
to all remedies (both legal and equitable) the law
(both statutory and decisional) of the state in which
the Leased Premises are situated provides without first
having to tender the balance of the purchase price as a
condition precedent thereof and without having to make
any election of such remedies.
Marie Callender Lease Lessee /s/ SJ Lessor /s/ RPJ
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(D) EFFECT OF RIGHT OF FIRST REFUSAL ON LEASE. If this
Right of First Refusal is exercised by Lessee and is exercisable
in Lessor's Notice as to the entire fee simple, this Lease shall
continue in full force and effect until the Closing hereinabove
specified. If the Right of First Refusal is exercised only as to
all of an undivided portion of the fee simple to the Leased
Premises, the Lease shall remain in full force and effect without
merger or termination of this Lease because of such purchase. If
such Closing fails to occur for any reason, this Lease shall
continue in full force and effect, except that if the provisions
of this paragraph 34 are annulled by Selling Lessor, in
accordance with subparagraph 34(C)(vi), by reason of a default by
Lessee, this Lease shall continue, but without the provisions of
this paragraph 34 being a part hereof.
(E) If Lessee fails to exercise its Right of First Refusal,
Selling Lessor shall be free to sell all or any portion of its
interest in the Leased Premises for nine months following the
expiration of the twenty days within which Lessee may exercise
its Right of First Refusal, provided that the Selling Lessor
giving such Lessor's Notice shall sell its interest (or a portion
thereof) for a price equal to or greater than the price (or the
pro-rata portion thereof if a portion of the Selling Lessor's
interest in the Leased Premises is sold) set forth in Lessor's
Notice. This Right of First Refusal shall survive any sale of the
Leased Premises and shall apply to any subsequent sale or
potential sale by Lessor or its successors and assigns.
ARTICLE 35. COUNTERPART EXECUTION
This agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
ARTICLE 36 FORCE MAJEURE
In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lock-outs, labor troubles,
inability to procure materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war,
military or usurped power, sabotage, terrorism, unusually severe
weather, acts of God, fire or other casualty or other reason (but
excluding
Marie Callender Lease Lessee /s/ SJ Lessor /s/ RPJ
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financial inability) of a like nature beyond the reasonable
control of the party delayed in performing work or doing acts
required under the terms of this Lease, then performance of such
act shall be excused for the period of the delay, and the period
for the performance of any such act shall be extended for a
period equivalent to the period of the delay,
IN WITNESS WHEREOF, Lessor and Lessee have respectively
signed and sealed this Lease as of the day and year first above
written.
LESSEE:
MARIE CALLENDER PIE SHOPS, INC.
a California corporation
By: _______________________________
Its: _______________________________
LESSOR:
AEI FUND MANAGEMENT, INC. (AND/OR ITS ASSIGNS)
a Minnesota corporation
By: _______________________________
Its: _______________________________
Marie Callender Lease Lessee /s/ SJ Lessor /s/ RPJ
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