ASSIGNMENT AND ASSUMPTION OF LEASE
This instrument is executed and delivered as of the 30th day
of April, 2004, pursuant to that certain Contract of Sale
("Agreement") by and between PRECO II CRIC LLC, a Delaware
limited liability company ("Assignor"), and AEI INCOME & GROWTH
FUND 25 LLC, a Delaware limited liability company ("Assignee").
1. ASSIGNMENT OF LEASE AND GUARANTY. For good and valuable
consideration, Assignor hereby assigns, sells, transfers, sets
over and conveys to Assignee, and Assignee hereby accepts such
assignment, all right, title and interest of Assignor in, to and
under (i) that certain Lease dated as of October 21, 2003, by and
between Assignor, as Landlord, and APPLE OHIO LLC, a Delaware
limited liability company ("Tenant"), as Tenant (the "Lease"),
all rights and obligations of Assignor under the Lease; and (ii)
that certain Guaranty with respect to the Lease (the "Lease
Guaranty"), executed as of October 21, 2003, by Apple American
Group LLC, a Delaware limited liability company with respect to
that certain parcel of real property located in Macedonia, Ohio,
which is more fully described on Exhibit A attached hereto. A
Memorandum of Lease dated October 21, 2003, was recorded November
17, 2003, in the Recorder's Office, Summit County, Ohio, having
Instrument No. 54976007.
2. ASSUMPTION; INDEMNITIES. Assignee hereby assumes the
obligations of Assignor under the Lease arising from and after
the Closing Date (as defined in the Agreement) and shall defend,
indemnify and hold harmless Assignor from and against any
liability, damages, causes of action, expenses, and attorneys'
fees incurred by any such indemnified party by reason of the
failure of Assignee to fulfill, perform, discharge, and observe
its obligations with respect to the Lease arising on or after the
date hereof. Assignor shall defend, indemnify and hold harmless
Assignee from and against any liability, damages, causes of
action, expenses, and attorneys' fees incurred by Assignee by
reason of the failure of Assignor to fulfill, perform, discharge,
and observe its obligations with respect to the Lease arising
before the date hereof.
3. DISCLAIMER. Except as otherwise expressly provided in the
Agreement, the Lease is assigned by Assignor and accepted by
Assignee AS IS, WHERE IS, WITHOUT ANY REPRESENTATIONS OR
WARRANTIES OF WHATSOEVER NATURE, EXPRESS OR IMPLIED, IT BEING THE
INTENTION OF ASSIGNOR AND ASSIGNEE EXPRESSLY TO NEGATE AND
EXCLUDE ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR
PURPOSE, WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE
OR BY ANY DESCRIPTION OF THE LEASE ASSIGNED HEREUNDER, AND ALL
OTHER REPRESENTATIONS AND WARRANTIES WHATSOEVER.
4. GOVERNING LAW. This instrument shall be governed and
controlled by the law of the State of Ohio.
IN WITNESS WHEREOF, the undersigned have caused this
Assignment and Assumption of Lease to be executed as of the date
first written above.
ASSIGNOR:
PRECO II CRIC LLC,
a Delaware limited liability
company
By: /s/ Marjorie S Palace
Marjorie S. Palace,
Authorized Person
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF SUFFOLK )
I, Andrea M Mullen, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY, that Marjorie S.
Palace, personally known to me to be the Authorized Person of
PRECO II CRIC LLC, a Delaware limited liability company
("Company"), and personally known to me to be the same person
whose name is subscribed to the foregoing instrument as such
Authorized Person, appeared before me this day in person and
acknowledged that she signed and delivered the said instrument as
her own free and voluntary act, and as the free and voluntary act
and deed of said Company, for the uses and purposes therein set
forth.
GIVEN under my hand and Notarial Seal this 29th day of
April, 2004.
/s/ Andrea M Mullen
Notary Public
[notary seal]
ASSIGNEE:
AEI INCOME & GROWTH FUND 25 LLC,
a Delaware limited liability
company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation,
its Managing Member
By: /s/ Robert P Johnson
Robert P. Johnson, President
STATE OF MINNESOTA )
)
COUNTY OF RAMSEY )
I, Jennifer L Schreiner, a Notary Public in and for said
County, in the State aforesaid, DO HEREBY CERTIFY, that Robert P.
Johnson, personally known to me to be the President of AEI FUND
MANAGEMENT XXI, INC., a Minnesota corporation, on its own behalf
and as the Managing Member for AEI INCOME & GROWTH FUND 25 LLC, a
Delaware limited liability company ("Company"), and personally
known to me to be the same person whose name is subscribed to the
foregoing instrument as such President, appeared before me this
day in person and acknowledged that he signed and delivered the
said instrument as his own free and voluntary act, and as the
free and voluntary act and deed of said Company, for the uses and
purposes therein set forth.
GIVEN under my hand and Notarial Seal this day of
April, 2004.
/s/ Jennifer L Schreiner
Notary Public
[notary seal]
This Instrument Prepared by:
G. Dean Reed, Esq.
Liechty & McGinnis, P.C.
7502 Greenville Avenue, Suite 750
Dallas, Texas 75231
EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1
SITUATED IN THE CITY OF MACEDONIA, COUNTY OF SUMMIT AND STATE OF
OHIO AND KNOWN AS BEING A PART OF "BLOCK G" IN W & M PROPERTIES
MACEDONIA COMMONS SUBDIVISION AS SHOWN ON THE PLAT RECORDED IN
PLAT CABINET I, SLIDES 475 THROUGH 478, INCLUSIVE, OF THE SUMMIT
COUNTY RECORDS, ALSO KNOWN AS BEING A PART OF ORIGINAL NORTHFIELD
TOWNSHIP LOT NO. 26, FURTHER BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF AKRON-
CLEVELAND ROAD (S.R. 8) WITH THE CENTERLINE OF MACEDONIA COMMONS
BOULEVARD, 80.00 FEET WIDE AND VARIABLE, AS SHOWN ON SAID PLAT OF
MACEDONIA COMMONS SUBDIVISION; THENCE NORTHEASTERLY ALONG SAID
CENTERLINE OF MACEDONIA COMMONS BOULEVARD, SAID LINE BEING THE
ARC OF A CURVE DEFLECTING TO THE LEFT, SAID CURVE HAVING A RADIUS
OF 452.50 FEET AND A CHORD OF 363.15 FEET, WHICH CHORD BEARS N.
47 DEG. 13' 12" E, 373.68 FEET TO A POINT OF TANGENCY N 23 DEG.
33' 45" E, CONTINUING ALONG SAID CENTERLINE OF MACEDONIA COMMONS
BOULEVARD, 426.67 FEET TO A POINT THEREIN; THENCE S. 66 DEG. 26'
15" E, 37.87 FEET TO A POINT IN THE SOUTHEASTERLY LINE OF SAID
MACEDONIA COMMONS BOULEVARD, WHICH LINE ALSO BEING NORTHWESTERLY
LIMITED ACCESS LINE OF INTERSTATE ROUTE 271; THENCE N. 22 DEG.
21' 20" E ALONG SAID SOUTHEASTERLY LINE OF MACEDONIA COMMONS
BOULEVARD AND NORTHWESTERLY LIMITED ACCESS LINE OF INTERSTATE
ROUTE 271, 59.67 FEET TO A POINT THEREIN, SAID POINT BEING THE
MOST SOUTHERLY CORNER OF THE AFOREMENTIONED "BLOCK G", SAID POINT
ALSO BEING THE PRINCIPAL PLACE OF BEGINNING.
COURSE NO. 1: THENCE NORTHWESTERLY, CONTINUING ALONG THE NOW
NORTHEASTERLY LINE OF MACEDONIA COMMONS BOULEVARD, SAID LINE
BEING THE ARC OF A CURVE DEFLECTING TO THE LEFT, SAID CURVE
HAVING A RADIUS OF 527.62 FEET AND A CHORD OF 380.55 FEET, WHICH
CHORD BEARS N 04 DEG. 04' 07" W, 389.32 FEET TO A POINT OF
TANGENCY;
COURSE NO. 2: THENCE N 25 DEG. 12' 26" W, CONTINUING ALONG SAID
NORTHEASTERLY LINE OF MACEDONIA COMMONS BOULEVARD, 113.98 FEET TO
A POINT OF CURVATURE;
COURSE NO. 3: THENCE NORTHWESTERLY, CONTINUING ALONG SAID
NORTHEASTERLY LINE OF MACEDONIA COMMONS BOULEVARD, SAID LINE
BEING THE ARC OF A CURVE DEFLECTING TO THE RIGHT, SAID CURVE
HAVING A RADIUS OF 437.46 FEET AND A CHORD OF 145.17 FEET, WHICH
CHORD BEARS N. 15 DEG. 39' 22" W 145.85 FEET TO A POINT THEREIN;
COURSE NO. 4: THENCE S 85 DEG. 41' 01" E, 358.39 FEET TO A POINT
IN THE AFOREMENTIONED NORTHWESTERLY LIMITED ACCESS LINE OF
INTERSTATE ROUTE 271;
COURSE NO. 5: THENCE S. 21 DEG. 56' 04" W, ALONG SAID
NORTHWESTERLY LIMITED ACCESS LINE OF INTERSTATE ROUTE 271, 285.27
FEET TO AN ANGLE POINT THEREIN;
COURSE NO. 6: THENCE S 22 DEG. 21' 20" W, CONTINUING ALONG SAID
NORTHWESTERLY LIMITED ACCESS LINE OF INTERSTATE ROUTE 271, 357.79
FEET TO THE PRINCIPAL PLACE OF BEGINNING AND CONTAINING 2.0565
ACRES, BE THE SAME MORE OR LESS, BUT SUBJECT TO ALL LEGAL
HIGHWAYS AND EASEMENT OF RECORD AND BEING ACCORDING TO A SURVEY
DATED JUNE 22, 1994 MADE BY LESLIE P. KENT, PROFESSIONAL SURVEYOR
NO. 6627 OF SEYMOUR D. WEISS & ASSOCIATES, INC., CONSULTING
ENGINEERS & SURVEYORS.
PARCEL 2
TOGETHER WITH A NON-EXCLUSIVE PERPETUAL EASEMENT FOR DRAINAGE
FACILITIES AND ACCESS AS CONTAINED IN AN EASEMENT AGREEMENT BY
AND BETWEEN APPLE AMERICAN LIMITED PARTNERSHIP OF OHIO AND W & M
PROPERTIES DATED AUGUST 3, 1994 AND RECORDED ON AUGUST 5, 1994 IN
VOLUME 1732 PAGE 837 IN THE OFFICE OF THE RECORDER OF SUMMIT
COUNTY, OHIO.
PARCEL NO. 33-10568 (PPN NF-00029-01-017)
Commonly known as: 7159 Macedonia Commons Blvd., Macedonia, OH
44056
LEASE
BETWEEN
PRECO II CRIC LLC
as Landlord,
and APPLE OHIO LLC
as Tenant
Dated: As of October 21, 2003
TABLE OF CONTENTS
1. BASIC PROVISIONS 1
2. LEASING AGREEMENT; TERM 2
3. RENT 4
4. TAXES 5
5. ENVIRONMENTAL MATTERS 6
6. COMPLIANCE WITH REQUIREMENTS 9
7. COVENANT AGAINST LIENS 9
8. USE AND ENJOYMENT 10
9. TENANT'S PROPERTY; LIEN WAIVER 12
10. ALTERATIONS; MAINTENANCE AND REPAIR 12
11. CONDEMNATION AND CASUALTY DAMAGE 14
12. INSURANCE 17
13. ASSIGNMENT AND SUBLETTING 18
14. INDEMNIFICATION 20
15. DEFAULT; REMEDIES 22
16. SURRENDER OF PREMISES 27
17. SUBORDINATION AND ATTORNMENT 28
18. ESTOPPEL CERTIFICATES 29
19. NOTICES 29
20. LEASEHOLD FINANCING 30
21. RIGHT OF FIRST REFUSAL 31
22. TENANT'S RIGHT TO SUBSTITUTE THE PREMISES 33
23. GUARANTY 36
24. MISCELLANEOUS 37
SCHEDULES AND EXHIBITS
EXHIBIT A LAND LEGAL DESCRIPTION
EXHIBIT B LANDLORD AGREEMENT
EXHIBIT C MEMORANDUM OF LEASE
EXHIBIT D GUARANTY
EXHIBIT E SUBORDINATION , NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
LEASE
THIS LEASE ("Lease") dated October .21, 2003, is made and
entered into by and between PRECO II CRlC LLC, a Delaware
limited liability company ("Landlord"), and APPLE OHIO LLC,
a Delaware limited liability company ("Tenant").
I. BASIC PROVISIONS
1.1. Premises Address: 7159 Macedonia Commoms Blvd
Macedonia, Ohio 44056
1.2. Landlord Name and Address: PRECO II CRJC LLC
One Exeter Place
Boston, MA 02116.
1.3. Tenant Name and Address: Apple Ohio LLC
6200 Oak Tree Boulevard,
Suite 250
Independence, OH 44131
Attn: Chief Financial Officer
1.4. Lease Date: October 21, 2003
1.5. Term: Twenty (20) Lease Years
1.6. Options to Extend: Four (4) periods of five
(5) Lease Years each
1.7. Exhibits: Exhibit A -Land Legal Description
Exhibit B -Landlord Agreement
Exhibit C -Memorandum of Lease
Exhibit D -Guaranty of Lease
Exhibit E -Subordination, Non-Disturbance
and Attornment Agreement
2. LEASING AGREEMENT; TERM
2.1. LEASING AGREEMENT. Landlord leases to Tenant and
Tenant leases from Landlord upon and subject to the terms
and conditions set forth in this Lease certain real estate
consisting of approximately 84,358 square feet of land, as
legally described in attached Exhibit A, together with all
easements, rights and appurtenances thereto, including, but
not limited to all of Landlord's rights, if any, to use any
common areas, parking, access drives and sidewalks in any
center of which the real estate may be a part (the "Land").
The Land is commonly known as 2250 Claremont Avenue, Ashland
("City"), Ashland County, Ohio. The Land, together with the
restaurant and other related improvements now or hereafter
thereon ("Improvements"), are referred to in this Lease as
the "Premises." The Premises are leased subject to all
restrictions, covenants, encumbrances and other matters of
record on the date of this Lease.
2.2. TERM. The term of this Lease ("Term") shall
commence ("Commencement Date") on the date set forth
opposite the signatures of the parties on the signature page
of this Lease and, unless extended or earlier terminated as
provided herein, shall expire ("Expiration Date") at
midnight on the last day of the twentieth (20th) "Lease
Year" thereafter. "Lease Year" shall me~ and refer to that
period of twelve (12) full consecutive calendar months
beginning with the first full calendar month of the Term and
each subsequent period of twelve (12) consecutive calendar
months during the Term, provided that if the Term commences
on other than the first day of a calendar month, then the
initial fractional month of the Term plus the next
succeeding twelve (12) full calendar months shall constitute
the first Lease Year of the Term and provided, further, that
if this Lease is terminated prior to the Expiration Date,
the last Lease Year may contain less than twelve (12) full
calendar months.
2.3. EXTENSION OF THE TERM. Provided that this Lease is
in full force and effect and no Event of Default has
occurred and is continuing, Tenant shall have the option to
extend the Term for up to four (4) successive periods of
five (5) Lease Years each upon all of the provisions of this
Lease, which extension options shall automatically be deemed
exercised two hundred seventy (270) days prior to the then
current Expiration Date without the requirement for any
further notice; provided, however, that Tenant shall have
the right to tem1inate this Lease (and void any such
automatic extension and all remaining extension options)
effective as of any then current Expiration Date by giving
written notice thereof to Landlord not less than two hundred
seventy (270) days before such then current Expiration Date;
and provided, further, that this Lease shall not be
automatically extended (and Tenant shall be deemed to have
given written notice of non-renewal) if on the date which is
two hundred seventy (270) days prior to the then current
Expiration Date an Event of Default has occurred and is
continuing, and in such event this Lease shall terminate on
the then current Expiration Date. If and each time this
Lease is so extended, the word "Term" shall be deemed to
include the five (5) year extension period with respect to
which the option has been exercised and the term "Expiration
Date" shall mean the last day of such five (5) year
extension period.
2.4.PREMISES LEASED " AS-IS". LANDLORD HEREBY LEASES
AND WILL LEASE AND TENANT TAKES AND WILL TAKE THE PREMISES
"AS IS" AND TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER
ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS
NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO
HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, WITH RESPECT TO ANY OF THE PREMISES, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OR REPRESENTATION AS TO ITS
FITNESS FOR USE, PURPOSE, DESIGN OR CONDITION FOR ANY
PARTICULAR USE OR PURPOSE, AS TO THE QUALITY OF THE MATERIAL
OR WORKMANSHIP THEREIN, LATENT OR PATENT, OR AS TO VALUE,
COMPLIANCE WITH SPECIFICATIONS, LOCATION, USE, CONDITION,
MERCHANTABILITY, QUALITY, DESCRIPTION, DURABILITY OR
OPERATION, IT BEING AGREED THAT ALL RISKS INCIDENT THERETO
ARE TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES THAT THE
PREMISES ARE OF ITS SELECTION AND TO ITS SPECIFICATIONS, AND
THAT THE PREMISES HAVE BEEN INSPECTED BY TENANT AND ARE
SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR DEFICIENCY
IN ANY OF THE PREMISES OF ANY NATURE, WHETHER PATENT OR
LATENT, LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR
LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, STRICT
LIABILITY IN TORT). THE PROVISIONS OF THIS SECTION 2.4 HAYE
BEEN NEGOTIATED, AND THE FOREGOING PROVISIONS ARE INTENDED
TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY
LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE
PREMISES, ARISING PURSUANT TO STATUTE, JUDICIAL DECISION,
THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW, RULE,
REGULATION OR ORDER NOW OR HEREAFTER IN EFFECT OR OTHER
WISE.
Tenant acknowledges and agrees that Tenant has examined
the title to the Premises prior to the execution and
delivery of this Lease and has found such title to be
satisfactory for the purposes contemplated by this Lease.
2.5. TRUE LEASE. Landlord and Tenant intend for this
Lease to be a true lease and not a transaction creating a
financing arrangement. Each party shall take all reasonable
steps to reflect the transaction represented hereby in all
applicable books, records and reports (including, without
limitation, income tax filings) in a manner consistent with
"true lease" treatment rather than "financing" treatment.
2.6. NON- TERMINABLE. Except as and to the extent
expressly set forth in Section 2.3 (with respect to non-
renewal of this Lease) and in Article 11 of this Lease, and
Article 22 of this Lease (provided that Tenant (or an
affiliate of Tenant) shall enter into a new Lease for the
Exchange Property), Tenant shall have no right to terminate
this Lease. Tenant shall remain obligated under this Lease
in accordance with its terms and shall not take any action
to terminate, rescind or avoid this Lease, notwithstanding
any bankruptcy, insolvency, reorganization, liquidation,
dissolution or other proceeding affecting Landlord or any
action with respect to this Lease which may be taken by any
trustee, receiver or liquidator or by any court.
3. RENT
3.1. BASE RENT. Tenant shall pay to Landlord as annual
base rent ("Base Rent") the amount set forth in column (b)
below for the corresponding Lease Years set forth in column
(a) below:
(a) Lease Year (b) Annual Base Rent (c) Monthly Base Rent
1-5 $238,673.00 $19,889.42
6-10 256,573.44 21,381.12
11-15 275,816.40 22,984.70
16-20 296,502.60 24,708.55
21-25* 318,740.28 26,561.69
26-30** 342,645.84 28,553.82
31-35*** 368,344.32 30,695.36
36-40**** 395,970.12 32,997.51
[an asterisk (*) indicates an extension period; the number
of asterisks corresponds to the respective extension
period.]
Base Rent shall be paid to. Landlord in monthly
installments ("Monthly Base Rent") in the respective amounts
set forth in column (c) above in advance on the first day of
each month for which the same is due during the Term. Rent
for any partial month shall be prorated on a per diem basis.
3.2. PAYMENT. All charges and costs payable by Tenant
to Landlord or any other third party pursuant to this Lease
in addition to Base Rent shall be considered "Additional
Rent". Base Rent and Additional Rent are sometimes referred
to collectively as "Rent." Except as otherwise specifically
provided in this Lease, all Rent shall be paid by Tenant to
Landlord without notice, demand, offset, abatement,
reduction or deduction by check payable to Landlord and sent
to Landlord at the address indicated in Section 1.2 or to
such other person, entity or place as Landlord may from time
to time designate by notice to Tenant. If required by
Landlord, Tenant shall make payments of Monthly Base Rent to
Landlord by wire transfer in immediately available federal
funds to such account in such bank as Landlord may designate
from time to time upon not less than thirty (30) days'
notice to Tenant, which account shall be the same account to
which Tenant and/or Tenant's affiliates who lease other
properties from Landlord named herein (or its affiliates)
wire transfer payments of Monthly Base Rent for at least
nine (9) other properties. Monthly Base Rent for the period
from and including the Commencement Date through and
including the last day of the first full calendar month of
the Term shall be paid in advance on the Commencement Date.
3.3. LATE PAYMENTS. If Tenant shall fail to make
payment of any installment of Base Rent or any Additional
Rent payable to Landlord (rather than to a third party)
within ten (10) days after the date when each such payment
is due, Tenant shall pay to Landlord interest at a rate
equal to the Default Rate (ashereii1after defined) on the
amount unpaid computed from the date such payment of Base
Rent or Additional Rent was due to and including the date of
payment thereof (but only with respect to amounts payable
directly to Landlord or that are not otherwise subject to an
interest or similar charge that. will be treated as Base
Rent or Additional Rent hereunder). Further, if any
installment of Monthly Base Rent is not paid within fifteen
(15) days after the date the same is due, Tenant shall pay
to Landlord, on demand, as Additional Rent. a late charge
(the "Late Charge") equal to four percent (4%) of such
overdue installment of Monthly Base Rent.
3.4. NET LEASE. This is a net lease and Base Rent,
Additional Rent and, except as otherwise expressly set forth
herein, all other sums payable hereunder by Tenant shall be
paid without defense (other than defense of prior payment),
notice, demand, setoff, counterclaim, recoupment, abatement,
suspension, deferment, diminution, deduction or reduction.
During the Term of this Lease, Tenant shall be obligated to
pay and shall be liable for all costs and expenses
associated with or arising from the use, operation,
maintenance, repair or improvements of the Premises
(regardless of whether such costs and expenses are charged
or imposed against Landlord or Tenant).
4. TAXES
4.1. As used in this Lease, the term "Premises Taxes"
shall mean all real estate, personal property, ad valorem
and other taxes and assessments, general and special, and
all other governmental charges levied, assessed or imposed
on or with respect to the Premises or which arise from the
ownership, leasing, use, occupancy or possession of all or
any portion of the Premises. Without limitation of the
foregoing, it is hereby specifically agreed that "Premises
Taxes" include all taxes and other governmental charges
assessed or levied (i) on or with respect to any Base Rent
or Additional Rent payable under this Lease, (ii) with
respect to any period prior to or during the Term, and (iii)
any interest, penalties, fines and other amounts charged for
late payment or non-payment of any Premises Taxes.
Notwithstanding the foregoing, Premises Taxes shall not
include (A) any taxes or assessments imposed on or with
respect to Tenant's Property (as defined in Section 9.1),
(B) any income, franchise or other taxes measured by
Landlord's income or profit from the Premises on a net
basis, other than any sales, use, rent occupancy or similar
taxes on or with respect to Base Rent or Additional Rent, or
(C) any gifts estate or other transfer taxes imposed on
Landlord.
4.2. PAYMENT.
(a) Tenant shall pay Premises Taxes to the
appropriate governmental authority before delinquency
and before any interest, penalties or fines may be
charged with respect thereto and shall deliver a copy
of all paid tax bills to Landlord promptly upon
request.
(b) If any Premises Taxes relate to a fiscal
period which is partly within and partly outside of the
period for which Tenant is responsible, the amount
thereof shall b~ prorated so that Tenant will be
responsible for that portion which relates to the
period prior to and after the Commencement Date and
through the Expiration Date and Landlord will be
responsible for the portion after the Expiration Date.
(c) Any refunds (including any accrued interest)
of Premises Taxes applicable to the period prior to and
during-the Term shall be the property of Tenant and to
the extent received by Landlord shall be paid over to
Tenant promptly after receipt thereof. Any refund of
Premises Taxes shall be deemed a reduction of
Additional Rent hereunder.
4.3. CONTEST. Subject to the provisions hereof, Tenant,
at its own expense, may contest Premises Taxes in any manner
permitted by law, in Tenant's name, and, whenever necessary,
in Landlord's name and Landlord will cooperate at Tenant's
sole cost and expense with Tenant and execute any documents
reasonably required for such purpose. Any such contest shall
be conducted by Tenant in good faith and at its sole cost
and expense, by appropriate proceedings which shall operate
during the pendency thereof to prevent (i) the collection
of, or other realization upon, the Premises Taxes so
contested, (ii) the sale, forfeiture or loss of the
Premises, any Base Rent or any Additional Rent to satisfy
the same, (iii) any interference with the use or occupancy
of any of the Premises, and (iv) any interference with the
payment of any Base Rent or the portion of any Additional
Rent that does riot represent the Premises Taxes being
contested under this Section 4.3. In no event shall Tenant
pursue any contest with respect to any Premises Taxes in any
manner that exposes Landlord to (i) criminal liability,
penalty or sanction, (ii) any civil liability, penalty or
sanction for which Tenant has not made provisions reasonably
acceptable to Landlord, or (iii) defeasance of its interest
the Premises. Tenant agrees that each such contest shall be
diligently prosecuted to a final conclusion. Tenant shall
pay and save Landlord harmless from and against any and all
losses, judgments, decrees and costs (including. without
limitation, attorneys' fees and expenses) in connection with
any such contest and shall, promptly after the final
determination of such contest, fully pay and discharge the
amounts which shall be levied, assessed, charged or imposed
or be determined to be payable therein or in connection
therewith, together with all penalties, fines, interest,
costs and expenses thereof or in connection therewith.
5. ENVIRONMENTAL MATTERS
5.1. DEFINITIONS. For purposes of this Lease the
following terms shall have the following meanings:
(a) "ENVIRONMENTAL LAWS" -all present and future
laws, statutes, rules, regulations, orders and other
requirements of any federal, state, local or other
governmental authority relating to the environment,
environmental protection or regulation, the emission,
disposal or discharge or the actual or threatened
release into the environment of pollutants or
contaminants or to any Hazardous Substance or HS
Activity. Without limitation of the foregoing,
Environmental Laws include each of the following, as
enacted as of the date hereof or as hereafter amended:
the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. 9601 et seq; the
Resource Conversation and Recovery Act of 1976, 42
U.S.C. 6901 et seq. the Toxic Substance Control Act, 15
U.S.C. 2601 et seq, the Water Pollution Control Act
(also knows as the Clean Water Act), 33 U.S.C. 1251 et
seq.; the Clean Air Act, 42 U.S.C. 7401 et seq.; and
the Hazardous Materials Transportation Act, 49 U.S.C.
5l01 et seq. and any similar state laws.
(b) "HAZARDOUS SUBSTANCE" -any substance defined
or classified in any Environmental Laws as a toxic or
hazardous chemical, waste, material or substance. or as
a pollutant or contaminant (including, without
limitation, petroleum or any by-product or fractions
thereof, lead, asbestos and asbestos containing
materials, polychlorinated byphenyls and radioactive or
explosive materials); and any substance which if
present requires investigation or remediation under any
Environmental Law or results in liability thereunder
for exposure thereto or discharge thereof.
(c) "HS ACTIVITY" -the generation, manufacture,
handling, transportation, usage, treatment, release,
discharge, removal, storage or disposal of any
Hazardous Substance.
5.2. TENANT OBLIGATIONS.
(a) On or after the Commencement Date, Tenant (i) shall
not conduct or knowingly permit any HS Activity in, on or
from the Premises or knowingly allow any Hazardous
Substances on the Premises, in each case, in violation of
any Environmental Laws, and (ii) shall comply or cause
compliance with all Environmental Laws applicable to
Tenant's use or occupancy of the Premises, and shall cause
the Premises to comply with all Environmental Laws; in each
case, except to the extent such violation results from, or
compliance is required as a result of, any act of Landlord
or any act or omission of any other person other than Tenant
and its members, managers, affiliates, officers, directors,
employees, contractors, representatives, agents, assignees
or subtenants (collectively, "Tenant's Parties"), or relates
to any condition existing on the Commencement Date (the
obligations of Tenant under the preceding clauses (i) and
(ii) are called "Tenant's Compliance Obligation"). Tenant
shall promptly give notice to Landlord if Tenant becomes
aware of any action, claim, suit or proceeding relating to a
violation or alleged violation of any Environmental Laws
with respect to Tenant's use or occupancy of the Premises
filed or threatened against Tenant or the Premises. If, at
any time during the Term, Hazardous Substances shall exist
in or on the Premises to which Tenant's Compliance
Obligation applies, then Tenant shall, or shall cause
responsible third parties to, promptly commence and
diligently implement all investigation, site monitoring,
containment, cleanup, removal, restoration or other remedial
work of any kind or nature (collectively, "Remedial Work")
to the extent required by Environmental Laws, and in
compliance with all Environmental Laws, all at Tenant's sole
cost and expense.
(b) Tenant agrees to indemnify, defend and hold
harmless Landlord, any Landlord Lender and their respective
managers, partners, members, officers, directors,
shareholders, employees and agents ("Landlord Indemnitees")
from and against any and all claims, demands, actions,
liabilities, damages, assessments, losses, fines, penalties,
costs and expenses, including remediation, clean-up and
detoxification costs and reasonable attorneys' fees, arising
from or related to any breach or violation by Tenant of its
obligations set forth in Section 5.2(a). The provisions of
Section 5.2 shall survive the expiration or termination of
this Lease.
(c) Upon Landlord's request, at any time after the
occurrence and during the continuance of an Event of Default
or at such other time as Landlord has reasonable grounds to
believe that Tenant is in violation of Tenant's Compliance
Obligation, Tenant shall cause an inspection or audit of the
Premises by an environmental engineer or other appropriate
consultant reasonably approved by Landlord to determine the
presence or absence of Hazardous Substances on the Premises.
If Tenant fails to effectuate the commencement of such
inspection or audit within thirty (30) days after such
request or fails to deliver a written report of such
inspection or audit to Landlord within sixty (60) days after
such request, Landlord may order the same, and Tenant hereby
grants to Landlord and its respective employees, contractors
and agents access to the Premises upon prior reasonable
notice to undertake such inspection or audit, provided that
such inspection or audit does not interfere with the conduct
of Tenant's business on the Premises, Landlord provides
Tenant certificates of insurance naming Tenant as an
additional insured and containing such types of insurance
and limits as Tenant reasonably requires, Landlord promptly
repairs any damage caused by such testing and restores the
Premises to the condition in which it existed immediately
prior to such damage at Landlord's sole cost and expense,
and Landlord shall indemnify Tenant if and to the extent
required under Section 14.2 hereof for all loss, cost,
damage, liens, claims, liabilities or expenses (including,
but not limited to, reasonable attorneys' fees, court costs
and disbursements) incurred by Tenant arising from or by
reason of such inspection or audit. The cost of such
inspection or audit shall be paid (i) by Tenant if such
inspection or audit shall confirm a violation of Tenant's
Compliance Obligation or (ii) by Landlord if such inspection
or audit does not confirm a violation of Tenant's Compliance
Obligation.
(d) Landlord and Tenant expressly agree that,
notwithstanding anything to the contrary set forth in this
Lease (including, but not limited to, the provisions of
Section l4.l hereof), except in the case of Tenant's
obligations expressly set forth under Sections 5.2(a), (b)
and (c) hereof, Tenant shall have no obligation under this
Lease (i) to defend, indemnify or hold harmless Landlord or
Landlord Indemnitees with respect to any. Hazardous
Substance, Environmental Laws or HS Activity, (ii) to engage
any environmental engineer or appropriate consultant with
respect to any Hazardous Substance, Environmental Laws or HS
Activity, (iii) to conduct any audit or inspection of the
Premises with respect to any Hazardous Substance,
Environmental Laws or HS Activity, (iv) to comply or cause
compliance with any Environmental Laws, or (v) to perform or
cause performance of any Remedial Work with respect to any
Hazardous Substance, Environmental Laws or HS Activity.
5.3. LANDLORD OBLIGATIONS.
On or after the Commencement Date, Landlord shall not
conduct any HS Activity on, about or from the Premises.
Landlord shall promptly give notice to Tenant if Landlord
becomes aware of any action, claim, suit or proceeding
relating to a violation or alleged violation of any
Envirorn11ental Laws filed or threatened against Landlord or
the Premises or if Landlord has received notice or has
actual knowledge of any HS Activity on the Premises caused
by a person other than Tenant or any Tenant Party.
6. COMPLIANCE WITH REOUIREMENTS
6.1. COMPLIANCE WITH LAW
During the Term, Tenant shall comply, and shall cause
the Premises to comply, in all material respects with and
shall correct any violation of any laws, statutes,
ordinances and other legal and insurance requirements,
whether now or hereafter in force, applicable to the
Premises or Tenant's use or occupancy of the Premises,
including without limitation, the Occupational Safety and
Health Act, as amended ("OSHA "), the Americans with
Disabilities Act of 1990, as amended (" ADA"), and, subject
to Section 5.2, all Environmental Laws. Tenant shall
procure, maintain and comply, and shall cause the Premises
to comply, with any and all permits, approvals, licenses and
other governmental authorizations required for the lawful
use, operation, maintenance and any " Alteration"
(hereinafter defined) of the Premises.
6.2. COMPLIANCE WITH PERMITTED ENCUMBRANCES
Tenant agrees that with respect to all easements,
conditions, covenants, restrictions, encumbrances or
agreements now affecting the Premises or which are hereafter
created by or consented to by Tenant (collectively, the
"Permitted Encumbrances"), Tenant shall observe, perform and
comply with, and cause the Premises to comply with, and
carry out and perform all of the obligations therein which
are to be observed and performed by the owner or any
occupant of the Premises thereunder, and shall pay all
assessments, fees, costs and expenses required to be paid by
the owner or any occupant of the Premises thereunder .
7. COVENANT AGAINST LIENS
7.1. LIENS. Tenant shall not cause, suffer or permit
any mechanic's, materialmen's judgment or other lien
("Lien") to be filed against the Premises (other than any
Lien arising due to any act or omission of Landlord or its
agents); provided that nothing herein shall be deemed to
limit the rights of Tenant Lender under Section 20.2 hereof.
If any Lien shall be filed against all or any portion of the
Premises (other than any Lien arising due to any act or
omission of Landlord or its agents), (i) Tenant shall give
notice thereof to Landlord within ten (10) business days
after the date on which Tenant first becomes aware of the
filing of any such Lien, and (ii) within forty-five (45)
days after first becoming aware of such filing, (but in any
event before any enforcement action to foreclose is taken
with respect to such Lien), Tenant, at its sole cost and
expense, shall cause the Lien to be discharged of record or
bonded over by any statutory bonding procedure sufficient to
prevent foreclosure or other enforcement of such Lien, and
shall deliver notice thereof to Landlord, failing which
Landlord shall have the right, but shall not be obligated,
to discharge the Lien without investigating the validity or
amount thereof. Tenant shall reimburse Landlord on demand
for any reasonable amounts so paid or incurred by Landlord,
including reasonable expenses and attorneys' fees incurred
in connection therewith.
Notice is hereby given that Landlord shall not be
liable for any labor, services or materials furnished or to
be furnished to Tenant, or to anyone holding any of the
Premises through or under Tenant, and that no mechanic's.
materialman's or other Liens for any such labor. services or
materials shall attach to or affect the interest of Landlord
in and to any of the Premises.
8. USE AND ENJOYMENT
8.1. Use.
(a) Unless otherwise approved in writing by
Landlord, during the Term the Premises shall be used
only for the operation of an Applebee's Restaurant, or.
If a change in use is requested by Franchisor, any
other restaurant which may be affiliated with or
franchised by Franchisor. The Premises shall be
attractive in appearance and Tenant shall conduct its
business in a lawful and reputable manner. Tenant shall
not commit waste on the Premises and shall not occupy
or use the Premises or permit the same to be used or
occupied for any purpose or in any manner that violates
any applicable legal or governmental requirement.
(b) Tenant shall continuously operate a business
pursuant to Section 8.1(a) from the Premises during the Term
of this Lease; provided, however, that if Tenant has given
Landlord notice of Tenant's intent to substitute the
Premises pursuant to Section 22 hereof, Tenant may close its
business at the Premises for a continuous period of up to
two (2) years while Tenant is arranging for an Exchange
Property. In addition, Tenant may temporarily cease its
operations at the Premises for (i) restoration, alteration
and repair obligations pursuant to the terms of its
Franchise Agreement; (ii) the performance of Alterations
permitted under this Lease; or (iii) as a result of any
emergency, casualty or event of force majeure.
(c) All garbage, trash and refuse generated from the
operation of the business conducted on the Premises shall be
placed in appropriate garbage receptacles and, at Tenant's
sole cost and expense, removed from the Premises with
sufficient frequency so as to avoid any accumulation thereof
outside of such receptacles.
8.2. EXTERIOR SIGNS, AWNINGS AND CANOPIES. Tenant, at
its sole cost and expense, may at any time and from time to
time during the Term install, alter, and/or replace any and
all exterior signs, awnings and/or canopies as Tenant may
determine, so long as they are in compliance with all
applicable laws and all Permitted Encumbrances. Tenant, at
its sole cost and expense, shall obtain all necessary
permits for all signs, awnings and canopies on the Premises
and shall maintain the same in good condition and repair.
8.3. UTILITIES. Tenant shall arrange and contract, in
its name, for and pay when due all charges for water, gas,
electricity, cable TV, telephone, trash removal, scavenger
service and other utility services used or consumed on the
Premises by Tenant or its agents during the Term, all of
which shall be separately metered and billed to Tenant.
8.4. QUIET ENJOYMENT. Landlord covenants with Tenant
that Tenant, upon paying Rent to Landlord and performing
Tenant's other covenants in this Lease, shall and may
peaceably and quietly have, hold, occupy, possess and enjoy
the Premises during the Term without any interference from
Landlord or anyone claiming by, through or under Landlord.
8.5. SIGNAGE RIGHTS, PARKING, ACCESS. Landlord
covenants with Tenant that Landlord shall not engage in any
action, or grant any rights which affect parking at the
Premises access to the Premises, means of ingress and egress
to and from the Premises, visibility to or from the
Premises, Tenant's signage at the Premises or rights to the
roof of the Premises, any telecommunications equipment or
utilities which service the Premises, Tenant's air rights
and any other rights to which Tenant may be entitled
pursuant to any easement agreements or similar agreements
affecting the Premises without Tenant's prior written
consent, which may be granted or withheld in Tenant's sole
discretion but shall not be unreasonably withheld if such
action will not materially adversely affect the conduct of
Tenant's business at the Premises. Landlord agrees to
deliver to Tenant copies of any notices Landlord receives
with respect to the aforementioned rights. Landlord agrees
that so long as no Event of Default shall have occurred and
be continuing, upon request by Tenant (and only after all
documentation reasonably required to consummate the relevant
transaction shall have been provided to Landlord), Landlord
shall (i) enter into or modify such easements, covenants,
waivers, approvals or restrictions for utilities, parking or
other matters as Tenant may desire for the operation of the
Premises (collectively, "Easements"), or (ii) dedicate or
transfer, minor non-essential unimproved portions of the
Premises for road, highway or other public purposes to the
extent such dedications or transfers are consistent with
commercially reasonable development or operation of the
Premises (the ..Dedications"); provided, that Landlord shall
be obligated to take such action only if (A) any such
Easements or Dedications do not adversely affect the value
of the Premises (other than to a de minimis extent), do not
unreasonably render the use of the Premises dependent upon
any other property or unreasonably condition the use of the
Premises upon the use of any other property, and do not
adversely affect (other than to a de minimis extent) the
use, or visibility of, or access to, the Premises, (B)
Tenant advises Landlord of the amount of the consideration,
if any, being paid for such Easements or Dedications and
that Tenant considers such consideration, if any, to be fair
under the circumstance and that such consideration, if any,
shall be paid to Landlord, (C) Tenant acknowledges in
writing that for so long as this Lease is in effect, Tenant
will perform all obligations, if any, of Landlord under the
applicable instrument and Tenant will remain obligated under
this Lease and AAG (if the Guaranty is then in effect)
acknowledges in writing that AAG will remain obligated under
the Guaranty, in each case in accordance with their
respective terms, and (D) Tenant pays all out-of-pocket
costs and expenses incurred by Landlord in connection with
said Easements or Dedications including, without limitation
reasonable attorneys' fees. Subject to the foregoing clauses
(A) through (D), Landlord shall cooperate with Tenant's
efforts to enter into any Dedications or Easements.
8.6. WARRANTIES, GUARANTIES AND INDEMNITIES. Landlord
assigns to Tenant, without recourse or warranty whatsoever,
all warranties, guaranties and indemnities, express or
implied, and similar rights which Landlord may have against
any manufacturer, seller (other than the Seller under the
Purchase and Sale Agreement from whom Landlord acquired the
Premises), engineer, contractor or builder with respect to
the Premises, including, but not limited to, any rights and
remedies existing under contract or pursuant to the Uniform
Commercial Code (collectively, the "guaranties"). Such
assignment shall remain in effect during the Term. Landlord
hereby agrees to execute and deliver at Tenant's expense
such further documents, including powers of attorney (which
shall contain indemnity agreements from Tenant to Landlord
which shall be in form reasonably satisfactory to Landlord),
as Tenant may reasonably request in order that Tenant may
have the full benefit of the assignment of guaranties
effected or intended to be effected by this Section 8.6.
Upon the occurrence of a termination of this Lease the
guaranties shall automatically revert to Landlord.
9. TENANT'S PROPERTY: LIEN WAIVER
9.1. TENANT'S PROPERTY. Landlord agrees that all (i)
furniture, fixtures, furnishings, equipment (other than
floor and wall coverings, fixtures and equipment which are
"built-ins" or constitute an integral part of the Building,
any walk-in cooler, heat, air conditioning and ventilation
systems, electrical, plumbing and mechanical systems, all of
which are owned by and are the property of Landlord),
Kitchen Equipment (as hereinafter defined), inventory,
merchandise, goods, chattels, trade fixtures, signage,
appliances display cases, supplies, tools, machinery,
security systems, computer software or other personal
property of Tenant (including, without limitation, trade
fixtures in, on, around or affixed to the Premises), (ii)
furniture, fixtures, furnishings, equipment, supplies,
tools, machinery, security systems, computer software,
signage and other personal property (including, without
limitation, trade fixtures in, on, around or affixed to the
Premises) which display the name, trade name, trademark,
service mark, logo, insignia, slogan, emblem or symbol of
Applebee's International Inc.'s ("Franchisor") or of Tenant
("Distinctive Property"), and (iii) all licenses, permits,
approvals and authorizations. if any, which are required in
connection with the operation of Tenant's business,
including, without limitation, all liquor licenses, at any
time located on the Premises (collectively, "Tenant's
Property"), shall be and at all times remain the property of
Tenant regardless of whether the same (x) is affixed to the
Improvements on the Land or the manner in which the same is
affixed (unless permanently affixed) or (y) may now or
hereafter be regarded as a fixture or as property of
Landlord by operation of law or otherwise, unless, however,
such fixtures and equipment cannot be removed without
substantial damage to any Improvements which cannot be
easily repaired. As used herein the term "Kitchen Equipment"
shall include, without limitation, kitchen fixtures (except
for sanitary plumbing fixtures), counters, stainless steel
equipment, ranges, ovens, display cases and refrigeration
equipment (excluding the walk-in cooler). Tenant shall have
the right at any time and from time to time during the Term
and, subject to the provisions of Section 16.2 below, within
fifteen (15) days after the end of the Term to remove any
Tenant's Property from the Premises.
9.2. WAIVER OF LANDLORD'S LIEN. Tenant contemplates
financing from time to time some or all of Tenant's Property
with a lender or vendor ("TE Lender") who will require a
security interest therein (those items of Tenant's Property
which are subject to such security interest being referred
to collectively as "Financed Personality"). Landlord hereby
disclaims and waives any and all liens or right which
Landlord may have to claim a lien against the Tenant's
Property for nonpayment 9f Rent or otherwise and agrees to
execute and deliver promptly upon request a waiver with
respect thereto.
10. ALTERATIONS: MAINTENANCE AND REPAIR
10.1. Alterations.
(a) ALTERATIONS. For purposes of this Lease, any
physical improvement addition, enhancement or change with
respect to all or any portion of the Premises is referred to
as an "Alteration." Tenant or Franchisor shall have the
right at any time and from time to time during the Term to
make or cause to be made any Alteration in or to the
Premises (i) without Landlord's consent, if such Alteration
is performed in order to comply with any of Tenant's
agreements with Franchisor and such Alteration does not
adversely affect any structural component of the Building
and (ii) in the case of any Alteration other than those
permitted under clause (i) above, with Landlord's prior
consent, which consent shall not be unreasonably withheld
provided that such Alteration does not (A) diminish the
value of the Premises (including, by way of example only,
but without limitation, by diminishing the utility of the
Improvements for use as a restaurant or diminishing the
useful life of the Improvements), except to a de minimis
extent, or (B) adversely affect any structural component of
the Building. Every Alteration shall be made in accordance
with all applicable laws, legal requirements and the
Permitted Encumbrances. If Tenant shall submit a request to
Landlord for Landlord's approval of an Alteration which
requires Landlord's approval, Landlord shall (x) approve
such Alteration proposed by Tenant within twenty-one (21)
days of receiving Tenant's proposal and request for approval
or (y) disapprove Tenant's proposal in writing with a
detailed explanation of its objections within twenty-one
(21) days of receiving Tenant's proposal and request for
approval. If Tenant submits a proposal to Landlord and
Landlord disapproves such proposal within the twenty-one
(21) day time period, Tenant may submit another proposal
with modifications thereto made in response to Landlord's
objections and Landlord shall so approve or disapprove same
within seven (7) days after submission of such modified
proposal. If Landlord does not approve or disapprove any
proposal or modified proposal in writing with a detailed
explanation of its objections within the applicable seven
(1) or twenty-one (21) day period, Tenant may submit to
Landlord a reminder notice, which shall state that
Landlord's failure to disapprove the applicable proposal
within seven (7) days after receipt of such reminder notice
shall be deemed to constitute Landlord's approval thereof.
If Landlord does not disapprove such proposal or modified
proposal in writing with a detailed explanation of
Landlord's objections to Tenant's modifications within seven
(7) days after receipt of Tenant's reminder notice, Landlord
shall be deemed to have approved the Alterations proposed by
Tenant.
(b) In connection with any Alteration: (i) the
Alterations to be made will be constructed using materials
of a quality and workmanship at least as good as the
original work; (ii) all such Alterations shall be performed
in a good and workmanlike manner, and shall be performed
diligently in a commercially reasonable time period subject
to force majeure in compliance with all laws, legal
requirements and the terms of all Permitted Encumbrances;
(iii) all work done in connection with any such Alteration
shall comply in all material respects with all requirements
of any insurance policies in effect with respect to the
Premises (the "Insurance Requirements"); (iv) Tenant shall
pay when due all costs and expenses of any such Alteration,
and shall discharge all liens filed against any of the
Premises arising out of the same; (v) Tenant shall procure
and pay for all permits and licenses required in connection
with any such Alteration; (vi) all such Alterations shall be
the property of Landlord and shall be subject to this Lease
(except for any Alteration which constitutes Tenant's
Property); and (vii) all Alterations shall be made under the
supervision of an architect or engineer selected by Tenant
and in accordance with plans and specifications which shall
be submitted to Landlord prior .to the commencement of the
Alterations, provided, however, Landlord shall have no right
to approve such architect, engineer, plans or
specifications, except as expressly set forth in Section
IO.I(a).
10.2. MAINTENANCE AND REPAIR. During the Term, Tenant
at its sole cost and expense, agrees to make all necessary
repairs and replacements to the Improvements as often as
required to keep and maintain the Premises in good and safe
condition and repair. Notwithstanding any provision to the
contrary, Tenant's obligations under this section shall not
include making any repair or improvement necessitated by the
act of Landlord, its agents, employees or servants. If
Tenant shall default in its obligations under this Section
10.2, Landlord may, after thirty (30) days written notice to
Tenant and failure by Tenant to perform any necessary
repairs and replacements to the Improvements within such
thirty (30) day period, enter the Premises to commence such
repairs or replacement. All reasonable sums incurred by
Landlord in connection with any such repair or replacement
shall constitute Additional Rent payable by Tenant under
this Lease and shall be paid by Tenant to Landlord within
ten (10) days of Tenant's receipt of a detailed invoice for
such charges.
11. CONDEMNATION AND CASUALTY DAMAGE
11.1. SUBSTANTIAL TAKING. If all or substantially all
of the Premises is taken or appropriated for any public or
quasi-public use or purpose by any lawful power or authority
by the exercise of the right of eminent domain or by virtue
of condemnation or other similar proceedings, including a
deed given in lieu thereof ("Taking"), other than a
temporary Taking for a period of one (1) year or less, this
Lease shall terminate as of the date possession is required
by the condemning authority and Rent and all other charges
and costs payable hereunder shall be adjusted and paid to
the effective date of termination.
11.2. OTHER TAKING. (a) If there shall be a Taking,
other than a temporary Taking for a period of one (1) year
or less, of (i) a portion of the Building, (ii) twenty
percent (20%) or more of the parking area of the Premises,
or (iii) any material part of a driveway or roadway
necessary for access to the Premises, and in Tenant's
reasonable judgment such Taking under clauses (i),(ii) or
(iii), would render the Premises (or the remainder thereof)
unsuitable for the conduct of Tenant's business, Tenant
shall have the right to terminate this Lease as of the date
possession is required by the condemning authority by giving
notice to that effect to Landlord within sixty (60) days
after notice to Tenant of the date such possession is
required. In such event, Rent and all other charges and
costs payable hereunder shall be adjusted and paid to the
effective date of termination.
(b) If only a portion of the Premises is subject to a
Taking and Tenant is not entitled to or shall not exercise
its right to terminate this Lease pursuant to Section
11.2(a) this Lease shall continue in full force and effect,
and there shall be no abatement or reduction of Rent payable
hereunder. Tenant shall make any and all repairs and
restorations to the remainder of the Premises to the extent
necessary to render the same a complete architectural unit
suitable for Tenant's use.
11.3. COMPENSATION. (a) In the event that all or any
portion of the Premises is subject to a Taking, Landlord and
Tenant shall cooperate to maximize the amount of the
recovery from the condemning authority. If the recovery from
the condemning authority is paid into a common fund or paid
only to Landlord, such recovery shall be allocated as
follows and in the following priority: (i) so long as no
Event of Default shall have occurred and be continuing, to
Tenant for the cost of any repairs required pursuant to
Section 11.2(b), subject, however, to the provisions of
Section 11.3(b) hereof; (ii) to Landlord, that portion
allocable to Land which is taken; (iii) to Landlord, that
portion allocable to Improvements which are taken; (iv) to
Tenant, that portion allocable to Tenant's Property or
Tenant's relocation and moving expenses; and (v) to
Landlord, the balance. Notwithstanding the foregoing, all
proceeds from a temporary Taking shall be (A) paid to Tenant
if this Lease is not terminated and (B) equitably allocated
between Landlord and Tenant as of the date of termination if
this Lease is terminated. The provisions of this section
shall survive any termination of this Lease pursuant to
Section 11.1 or 11.2(a).
(b) If the proceeds from a Taking, and the estimated
costs of repairs to be performed by Tenant pursuant to
Section 11.2(b), exceeds $125,000.00, then such proceeds
shall be held by Landlord or Landlord's Lender, and Landlord
shall cause the proceeds to be paid out from time to time to
Tenant as the work progresses, subject to each of the
following conditions:
(i) Each request for payment shall be made on not
less than ten (10) business days' prior notice to
Landlord, and shall be accompanied by an officer's
certificate stating (A) that no Event of Default exists
under this Lease and (B) that the sum requested is
validly required to reimburse Tenant for payments by
Tenant to complete the repair work, or is validly due
to the contractor, subcontractors, materialmen,
laborers, engineers, architects or other persons
rendering services or materials for the work (giving a
brief description of such services and materials). At
the time of disbursement, no Event of Default shall
have occurred and be continuing.
(ii) Each request for payment shall be accompanied
by waivers of lien reasonably satisfactory to Landlord
covering that part of the work for which payment or
reimbursement has been made as of the date shown on the
current request.
(iii) Landlord shall release to Tenant the amount
requested by Tenant, subject to the amount retained by
Landlord in accordance with subsection (iv) below,
within ten (10) business days of Tenant's satisfaction
of the items set forth in subsection (i) and (ii)
above. Disbursements shall be made not more frequently
than once every thirty (30) days.
(iv) Except and to the extent that Tenant is
already retaining a like amount from its contractors,
Landlord (or Landlord Lender) may retain 10% of the
proceeds as retainage until the repairs and restoration
are substantially complete.
(v) Proceeds held by Landlord in accordance with
this Section shall be held in an interest bearing
account and any interest earned on the proceed shall be
a part of the proceeds, and shall be disbursed in
accordance with this Lease Landlord shall take any
interest earned into account for purposes of
determining its federal income tax liability, if any,
and shall pay any income taxes thereon.
11.4. CASUALTY DAMAGE.
(a) If the Improvements or any portion thereof are
damaged or destroyed by fire or other casualty ("Casualty"),
and this Lease is not terminated pursuant to subsection
11.4(b) below, Tenant shall, promptly and diligently repair
such damage and restore the Improvements as nearly as
possible to the condition which existed prior to the
occurrence of such Casualty or to any comparable or improved
condition consistent with Tenant's or Franchisor's then-
current store design and this Lease shall remain in full
force and effect. Tenant promptly shall commence and
diligently pursue to completion the repair, restoration and
replacement of the damaged or destroyed Improvements, due
allowance being made for time needed to obtain permits,
adjust insurance and for delay on account of events of force
majeure. Such repair, restoration and replacement shall be
performed in accordance with all applicable laws, legal
requirements and Permitted Encumbrances. Tenant shall be
responsible for the repair or replacement of any Tenant's
Property damaged by such Casualty. As used in this Lease the
word "destroyed" shall mean completely destroyed above the
foundation, or so substantially damaged as to require
demolition to the foundation, or such other severity of
damage as may be established or imposed by applicable
governmental law or ordinance which, if suffered, would
constitute total destruction or require demolition before
repair or reconstruction may commence.
(b) If the Improvements or any portion thereof is
damaged or destroyed (i) during the last two (2) Lease Years
of the Term (or the Term as then extended) to the extent of
twenty-five percent (25%) or more of the replacement value
thereof (exclusive of the foundation) immediately prior to
such Casualty; or (ii) by a cause or peril which is not
covered by the property insurance required to be carried
pursuant to Section 12.1 (b) (excluding any cause or peril
arising from any act of Tenant or any of its members,
managers, officers, directors, employees, contractors,
agents, representatives, subtenants or assignees) or other
insurance which is then customarily being carried by a .
commercially reasonable prudent operator of a facility
similar to the Premises; then Tenant shall have the right to
terminate this Lease by giving notice to that effect
("Termination Notice") to Landlord within one hundred twenty
(120) days after the occurrence of the Casualty, in which
event termination shall be effective as of the date of .
such Casualty if the Building is destroyed and otherwise as
of the date Tenant vacates the Premises following such
Casualty.
(c) If this Lease is terminated pursuant to this
Section 11.4, Rent and all other charges and costs payable
hereunder shall be adjusted and paid to the effective date
of termination, and all proceeds of any insurance with
respect to the Premises (exclusive of Tenant's Property,
which shall be paid to Tenant) shall be paid to Landlord.
12. INSURANCE
12.1. BY TENANT. Tenant, at its sole cost and expense,
shall obtain and maintain (or cause to be obtained and
maintained, as the case may be) the following insurance
during the Term:
(a) Commercial general public liability insurance
with limits of not less than Five Million and No/100
Dollars ($5,000,000.00) per occurrence.
(b) All-risk property insurance covering all
Improvements constituting part of the Premises,
including the Building, all Alterations and other
improvements (excluding Tenant's Property), in an
amount not less than one hundred percent (100%) of the
replacement cost thereof, including (i) ordinance or
law coverage including any amounts necessary to replace
the undamaged portion of the Building, to cover cost
increases arising from changes in building codes or
other ordinances or laws and to cover costs of debris
removal, and (ii) boiler and machinery coverage;
(c) Property insurance covering Tenant's Property
in such amounts as Tenant deems necessary or desirable;
(d) A liquor liability policy with limits of not
less than Five Million and No/100 Dollars
($5,000,000.00) per occurrence and Five Million and
No/100 Dollars ($5,000,000.00) in the aggregate;
(e) Workers' compensation and employer's liability
insurance as required by applicable law;
(f) Insurance against loss or damage from
explosion of any steam or pressure boilers or similar
apparatus located in or about the Improvements in an
amount not less than the actual replacement cost of the
Improvements and equipment located within the
Improvements;
(g) If any portion of the improvements is located
in an area designated by the Federal Emergency
Management Association as having special flood and mud
slide hazards, flood insurance in the maximum available
amount; and
(h) Loss of rent insurance in amounts sufficient
to compensate Landlord for all Base Rent, Additional
Rent and other amounts payable hereunder for a period
of not less than twelve (12) months, the amount of such
coverage to be adjusted annually to reflect the Base
Rent, Additional Rent and other amounts payable during
the succeeding twelve (12) month period.
12.2. GENERAL REQUIREMENTS. All insurance (and renewals
thereof) required by this Article shall be issued by
responsible insurance carriers authorized to do business in
the State in which the Premises is located and having a
claims paying ability rating of not less than "A-.' by
Standard & Poor's Rating Services, a division of The McGraw-
Hill Companies, Inc. Each policy (and any renewal thereof)
shall expressly provide that it shall not be cancelled or
changed without at least thirty (30) days' prior written
notice to all parties insured or named therein. The
insurance described in Sections 12.1 (a) and (d) shall
include Landlord and Landlord's Lender if any, as additional
insureds. The insurance provided under Sections 12.1 (b) (f)
and (g) shall name Landlord each Landlord Lender as a loss
payee with respect to any losses, and any proceeds paid to
Landlord thereunder shall be held and disbursed by Landlord
on the same terms as those set forth in Section 11.3 (except
that proceeds from losses of less than $125,000 shall be
paid to Tenant provided that no Event of Default has
occurred and is continuing). In the event of any Tenant
financing, the interest of Landlord and Landlord's Lender,
if any, under the property insurance described in Sections
12.1(b) (f) and (g) shall be senior to the interest of any
Tenant Lender. All of the insurance required by this
Article shall be primary and noncontributing with any
insurance which may be carried by the Landlord, shall afford
coverage for all claims based on any act, omission, event or
condition which occurs or arises during the policy period,
and may be obtained by endorsement on blanket policy(ies) of
insurance carried and maintained by Tenant. Upon issuance
and each renewal thereof, Tenant shall deliver to Landlord a
certificate thereof and reasonable evidence of paid premium,
failing which Landlord shall have the right from time to
time after no less than ten (10) days' notice (except that
if any insurance required under Section 12.1 has lapsed, no
prior notice shall be necessary) to effect such insurance
for no more than one (1) year and all premiums paid by
Landlord shall be reimbursed by Tenant upon written demand.
The amount of insurance coverage required in Sections
12.1(a) and (d) above each shall be subject to increase from
time to time (but not more frequently than once every five
(5) years) and upon not less than ninety (90) days prior
notice therefor from Landlord to Tenant; provided that (y)
such additional coverage is comparable and not more than
that commonly carried by owners of similar properties in the
metropolitan vicinity of the Premises, and (z) such
additional coverage is available at commercially reasonable
rates. Landlord shall have no interest in any insurance
proceeds Tenant receives for Tenant's Property and Landlord
shall sign all documents which are necessary or appropriate
in connection with the settlement of any claim or loss by
Tenant with respect to Tenant's Property.
12.3. MUTUAL WAIVER OF SUBROGATION. Tenant agrees to
have all policies of fire and extended coverage insurance
now or hereafter carried by it with respect to the
Improvements endorsed with a clause substantially as
follows: "This insurance shall not be invalidated should the
insured waive in writing prior to a loss any or all rights
of recovery against any party for loss occurring to the
property described herein." The obligation to obtain such an
endorsement shall be subject to the availability thereof at
commercially reasonable rates. Landlord and Tenant hereby
waive all claims for recovery from each other for any loss
or damage to it or any of its property insured under valid
and collectible insurance policies to the extent of the
proceeds collected under such insurance policies.
13. ASSIGNMENT AND SUBLETTING
13.1. CONSENT REQUIRED. Except as provided in Section
13.2 below and Tenant financing pursuant to Article 20
below, Tenant shall not sell, encumber, assign or transfer
this Lease or any interest herein, nor sublet all or any
part of the Premises without the prior written consent of
Landlord which shall not be unreasonably withheld,
conditioned or delayed so long as such proposed assignee or
subtenant is a capable operator of a restaurant facility and
has a financial condition and creditworthiness sufficient to
meet the financial obligations of Tenant under this Lease.
With respect to an assignment or subletting for which
Landlord's consent is required the following provisions
shall apply:
(i) there shall be submitted to Landlord current
financial information and information regarding the
business reputation and experience regarding the
proposed assignee/sublessee
(ii) the business reputation and experience of the
proposed assignee or sublessee (or the principals or
owners thereof) shall meet or exceed generally
acceptable commercial standards for like properties;
(iii) in the case of an assignment, the proposed
assignee shall agree in writing to assume and abide by
all terms and provisions of this Lease from and after
the date of such assignment; and
(iv) no Event of Default shall have occurred and
be continuing.
Landlord agrees to respond within twenty (20) days
after receipt of Tenant's written request for Landlord's
consent (together with the information specified above and
other information reasonably requested by Landlord) to a
proposed assignment or sublet and submission of the
financial information and business qualifications of the
proposed assignee/sublessee pursuant to clauses (i) and (ii)
above. Any disapproval shall be explained in writing. If
Landlord fails to respond or explain its disapproval by the
expiration of said twenty (20) day period, Tenant may give
to Landlord a reminder notice stating that Landlord's
failure to respond within ten (10) days after receipt of
such reminder notice shall be deemed to constitute
Landlord's approval of the transaction in question, and if
Landlord shall fail to respond or explain its disapproval
within ten (10) days after receipt of such reminder notice,
the transaction which is the subject of Tenant's notice to
Landlord shall be deemed approved. Consent by Landlord to
any assignment or subletting shall not waive the necessity
for consent to any subsequent assignment or subletting for
which Landlord's consent is required by this section.
13.2. PERMITTED TRANSFER. Tenant shall have the right,
without any cost, fee or payment to Landlord (other than as
set forth in Section 13.4 below), to sublet any portion of
the Premises, or to transfer and assign Tenant's right,
title and interest in this Lease, without Landlord's prior
written consent, to the following persons and entities in
the following events (each, a "Permitted Transfer"): (i) to
Franchisor; (ii) to another licensed franchisee of
Franchisor; (iii) to a parent, subsidiary, affiliate or
division of Tenant, Apple American Group LLC ("AAG") or
their respective investors; (iv) to any entity (other than
an entity described in subpart (iii) of this Section 13.2)
that acquires, by merger, consolidation or otherwise, all or
substantially all of the membership interests in and control
of, Tenant or AAG (provided that no Event of Default shall
have occurred and be continuing); or (v) to any entity
(other than an entity described in subpart (iii) of this
Section 13.2) that acquires all or substantially all of
Tenant's assets (excluding the Distinctive Property) or
AAG's assets (provided that no Event of Default shall have
occurred and be continuing). A direct or indirect transfer
of all or any interest in AAG shall not be deemed a sale,
encumbrance, assignment or transfer of this Lease or any
interest herein. A direct or indirect transfer by AAG of all
or any interest in Tenant shall not be deemed a sale,
encumbrance, assignment or transfer of this Lease or any
interest therein; provided, that the transferee is a party
to whom, if the lessee's interest in this Lease were
transferred to such party, such transfer would constitute a
Permitted Transfer. For purposes of this Section 13.2
references to Tenant, Franchisor and AAG shall be deemed to
include their respective successors and assigns.
13.3. GENERAL PROVISIONS. In the case of any sublease
or assignment of this Lease, Tenant shall submit an executed
copy of the sublease or assignment instrument to Landlord.
Notwithstanding anything to the contrary which may be
provided in this Lease, (a) the Tenant making any assignment
or sublease shall not be released from any liability under
this Lease as a result of any assignment or sublease made
pursuant to Section 13.1 or Section 13.2(iii), and (b) the
Tenant assigning all of its right, title and interest under
this Lease (and any predecessor Tenant that has not
theretofore been released) shall be released from all future
liability under this Lease in connection with any assignment
of all of such assigning Tenant's right, title and interest
in this Lease described in subsections (i), (ii), (iv) and
(v) of Section 13.2, provided that (i) the assignee of an
assignment or transfer described in subsections (i), (ii),
and (v) of Section 13.2 assumes all obligations under this
Lease pursuant to an assignment and assumption agreement in
the form attached as Schedule 1 to the Guaranty attached as
Exhibit D hereto, and (ii) if the Tenant making the
assignment is not the originally named Tenant hereunder,
such assigning Tenant (and any predecessor Tenant that has
not theretofore been released) shall not be released in the
case of an assignment or transfer of such assigning Tenant's
right, title and interest in this Lease to (X) any entity
that acquires, by merger, consolidation or otherwise, all or
substantially all of the membership interests in and control
of, such assigning Tenant pursuant to subsection (iv) of
Section 13.2 above, or (Y) any entity that acquires all or
substantially all of such assigning Tenant's assets pursuant
to subsection (v) of Section 13.2 above, unless the assignee
or transferor will directly or indirectly hold, after giving
effect to such assignment or transfer, all or substantially
all of the assets of the originally named Tenant hereunder.
Landlord shall not be entitled to any consideration in
connection with any assignment or sublet. Unless expressly
released pursuant to the provisions of this Section 13.3, a
Tenant which assigns subleases or otherwise transfers its
interest in this Lease or the Premises shall remain fully
liable for all of the obligations, duties and liabilities of
the Tenant under this Lease following any such assignment,
sublease or other transfer.
13.4. COSTS AND FEES. Tenant shall not be obligated to
reimburse Landlord for any cost, fee or payment incurred by
Landlord or Landlord's Lender in connection with any
requests for approval of an assignment of this Lease or any
sublease of the Premises other than reasonable costs and
expenses incurred by Landlord and Landlord Lender
(including, without limitation. reasonable attorneys' fees
and disbursements).
14. INDEMNIFICATION
14.1. INDEMNIFICATION OF LANDLORD.
(i) TENANT AGREES TO DEFEND, PAY, PROTECT
INDEMNIFY, SAVE AND HOLD HARMLESS LANDLORD AND
LANDLORD'S INDEMNITEES (AS DEFINED IN SECTION 5.2(B)
ABOVE FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES,
DAMAGES, PENALTIES, COSTS, EXPENSES (INCLUDING, WITHOUT
LIMITATION REASONABLE ATTORNEYS' FEES AND
DISBURSEMENTS), CAUSES OF ACTION, SUITS, CLAIMS,
DEMANDS OR JUDGMENTS OF ANY NATURE WHATSOEVER,
HOWSOEVER CAUSED, ARISING OR ALLEGED TO ARISE FROM THE
PREMISES OR THE USE, NON-USE, OCCUPANCY, CONDITION,
CONSTRUCTION, MAINTENANCE, REPAIR OR REBUILDING OF THE
PREMISES, ANY BREACH OF THIS LEASE ON THE PART OF
TENANT OR LANDLORD'S ENFORCEMENT OF THE PROVISIONS OF
THIS LEASE, AND ANY INJURY TO OR DEATH OF ANY PERSON OR
PERSONS OR ANY LOSS OF OR DAMAGE TO ANY PROPERTY, REAL
OR PERSONAL, IN ANY MANNER ARISING THEREFROM, CONNECTED
THEREWITH OR OCCURRING THEREON, AND ANY CLAIMS,
DEMANDS, CAUSES OF ACTION, SUITS OR JUDGMENTS BY THIRD
PARTIES RESULTING FROM VIOLATIONS OR ALLEGED VIOLATIONS
BY TENANT OR ANY SUBTENANT OF ANY PROVISION OF THIS
LEASE, ANY LEGAL REQUIREMENT, ANY OTHER LEASE OR
AGREEMENT RELATING TO THE PREMISES, OR ANY OTHER
CONTRACT OR AGREEMENT TO WHICH TENANT OR ANY SUBTENANT
IS A PARTY, WHETHER OR NOT LANDLORD OR LANDLORD'S
LENDER HAS OR SHOULD HAVE KNOWLEDGE OR NOTICE OF THE
DEFECT OR CONDITIONS, IF ANY, CAUSING OR CONTRIBUTING
TO SAID INJURY, DEATH, LOSS, DAMAGE, LIABILITY,
PENALTY, COST, EXPENSE, CAUSE OF ACTION, SUIT, DEMAND,
JUDGMENT OR OTHER CLAIM; EXCEPT TO THE EXTENT THAT ANY
SUCH LIABILITY, LOSS, DAMAGE, PENALTY , COST, EXPENSE,
CAUSE OF ACTION, SUIT, CLAIM, DEMAND OR JUDGMENT IS THE
RESULT OF THE WILLFUL MISCONDUCT OR NEGLIGENCE OF
LANDLORD OR ANY LANDLORD INDEMNITEE. IN CASE ANY ACTION
OR PROCEEDING IS BROUGHT AGAINST LANDLORD OR ANY
LANDLORD'S INDEMNITEE BY REASON OF ANY SUCH CLAIM
AGAINST WHICH TENANT HAS AGREED TO DEFEND, PAY,
PROTECT, INDEMNIFY, SAVE AND HOLD HARMLESS PURSUANT TO
THE PRECEDING SENTENCE, TENANT COVENANTS UPON NOTICE
FROM LANDLORD OR ANY LANDLORD'S INDEMNITEE TO RESIST
SUCH ACTION OR PROCEEDING AND DEFEND LANDLORD AND
LANDLORD'S INDEMNITEE IN SUCH ACTION OR PROCEEDING,
WITH THE EXPENSES OF SUCH DEFENSE PAID BY TENANT, AND
LANDLORD WILL COOPERATE AND ASSIST IN THE DEFENSE OF
SUCH ACTION OR PROCEEDING IF REASONABLY REQUESTED SO TO
DO BY TENANT.
(ii) The obligations of Tenant under this Section
14.1 shall survive the termination or expiration of
this Lease.
14.2. INDEMNIFICATION OF TENANT. (i) LANDLORD AGREES TO
DEFEND, PAY, PROTECT, INDEMNIFY, SAVE AND HOLD HARMLESS
TENANT, ANY TENANT LENDER, AND THEIR RESPECTIVE MEMBERS AND
ITS AND THEIR RESPECTIVE MEMBERS, MANAGERS, OFFICERS,
EMPLOYEES. DIRECTORS, SHAREHOLDERS AND AGENTS ("TENANT
INDEMNITEES") FROM AND AGAINST ANY AND ALL LIABILITIES
LOSSES, DAMAGES, PENALTIES, COSTS, EXPENSES (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES, AND
DISBURSEMENTS), CAUSES OF ACTION, SUITS, CLAIMS, DEMANDS OR
JUDGMENTS OF ANY NATURE WHATSOEVER, HOWSOEVER CAUSED,
ARISING OR ALLEGED TO ARISE FROM ANY BREACH OF THIS LEASE ON
THE PART OF THE LANDLORD OR TENANT'S ENFORCEMENT OF THE
PROVISIONS OF THIS LEASE, AND ANY INJURY TO OR DEATH OF ANY
PERSON OR PERSONS OR ANY LOSS OF OR DAMAGE TO ANY PROPERTY,
REAL OR PERSONAL, IN ANY MANNER ARISING FROM OR CONNECTED
WITH LANDLORD'S BREACH OF THIS LEASE OR TENANT'S ENFORCEMENT
OF THE PROVISIONS OF THIS LEASE OR OCCURRING ON THE PREMISES
TO THE EXTENT CAUSED BY THE WILLFUL MISCONDUCT OR NEGLIGENCE
OF LANDLORD OR ANY LANDLORD INDEMNITEE. IN CASE ANY ACTION
OR PROCEEDING IS BROUGHT AGAINST TENANT, OR TENANT'S
INDEMNITEE BY REASON OF ANY SUCH CLAIM AGAINST WHICH
LANDLORD HAS AGREED TO DEFEND, PAY, PROTECT, INDEMNIFY, SAVE
AND HOLD HARMLESS PURSUANT TO THE PRECEDING SENTENCE,
LANDLORD COVENANTS UPON NOTICE FROM TENANT OR TENANT'S
INDEMNITEE TO RESIST SUCH ACTION OR PROCEEDING AND DEFEND
TENANT AND TENANT'S INDEMNITEE IN SUCH ACTION OR PROCEEDING,
WITH THE EXPENSES OF SUCH DEFENSE PAID BY LANDLORD, AND
TENANT WILL COOPERATE AND ASSIST IN THE DEFENSE OF SUCH
ACTION OR PROCEEDING IF REASONABLY REQUESTED SO TO DO BY
LANDLORD.
(ii) The obligations of Landlord under this
Section 14.2 shall survive the termination or
expiration of this Lease.
15. DEFAULT: REMEDIES
15.1. DEFAULT BY TENANT. Each of the following shall
constitute an Event of Default (herein so called) by Tenant
under this Lease:
(i) Tenant fails to pay any installment of Base
Rent in full under this Lease within five (5) days
after notice from Landlord that such payment was not
received when due;
(ii) Tenant fails to pay any installment of
Additional Rent in full under this Lease within ten
(10) days after notice from Landlord that such payment
was not received when due;
(iii) Tenant fails to observe or perform any other
provision of this Lease required to be observed or
performed by Tenant and does not cure such failure
within thirty (30) days after notice thereof from
Landlord; provided that if such default is not capable
of being cured within thirty (30) days and Tenant
promptly commences such cure, said thirty (30) day
period shall be extended so long as Tenant diligently
and continuously pursues such cure;
(iv) Tenant or any guarantor of Tenant's
obligations under this Lease (a "Guarantor") makes a
general assignment for the benefit of creditors;
(v) A receiver or trustee of Tenant or any
Guarantor or any of their respective assets is
appointed by entry of an order by a court of competent
jurisdiction and the same is not vacated, discharged or
dismissed within sixty (60) days thereafter;
(vi) A petition for relief is filed by Tenant or
any Guarantor under any bankruptcy or insolvency law
seeking a plan of reorganization or arrangement under
any law relating to bankruptcy, or any such petition is
filed against Tenant or any Guarantor and same is not
dismissed, discharged or vacated within sixty (60) days
thereafter;
(vii) The interest of Tenant in the Premises is
sold under execution or other legal process;
(viii) Tenant fails to maintain any insurance
required under Section 12.1 of this Lease within five
(5) days after notice from Landlord of such failure; or
(ix) Tenant assigns this Lease or subleases any
portion of the Premises in violation of Section 13 of
this Lease.
15.2. LANDLORD'S REMEDIES.
(a) Upon the occurrence of an Event of Default under
Section 15.1, Landlord shall have the following rights and
remedies, subject to the rights of Franchisor or Tenant
Lender under the provisions of Section 15.3 and Section
20.2:
(i) To terminate this Lease and Tenant's right of
possession of the Premises by giving notice of such
election to Tenant, in which event (A) Tenant shall
immediately surrender possession thereof to Landlord,
failing which Landlord may re-enter and take possession
of the Premises and expel or remove Tenant and any
other occupant(s) thereof in accordance with applicable
law ("Reentry"), and (B) Tenant shall have no further
claim thereon or hereunder;
(ii) To terminate Tenant's right of possession of
the Premises without terminating this Lease by giving
notice of such election to Tenant, in which event (A)
Tenant shall immediately surrender possession thereof
to Landlord, failing which Landlord may exercise the
right of Reentry, and (B) Landlord shall have the right
to occupy the Premises for and on account of Tenant and
to collect any unpaid rentals and other charges which
have or may thereafter become due and payable;
(iii) To exercise the rights described in clause
(ii) above and thereafter elect to terminate this Lease
and all of Tenant's rights in or to the Premises by
giving notice of such election to Tenant; or
(iv) To exercise any other right or remedy now or
hereafter existing by law or in equity.
(b) If Landlord reenters the Premises under subsection
(a)(ii) above, such reentry or any action, in unlawful
detainer or otherwise, to obtain possession of the Premises
shall not be deemed to be an election by Landlord to
terminate this Lease, or Tenant's liability to pay rent or
other charges thereafter accruing, or Tenant's liability for
damages under any provisions hereof, unless Landlord elects
to terminate this Lease by written notice to that effect
given to Tenant. Tenant covenants that the service by
Landlord of any notice pursuant to the unlawful detainer
statutes of the State in which the Premises is located and
the surrender of possession pursuant to such notice shall
not be deemed to be a. termination of this Lease, unless
Landlord elects to the contrary by written notice to that
effect given to Tenant at the time of or after the service
of any such statutory notice. If Landlord reenters or takes
possession of the Premises as aforesaid, Landlord shall have
the right, subject to the provisions of this Lease,
including without limitation, the provisions of Section
16.2, to remove therefrom all or any part of the personal
property located therein and may dispose of or place the
same in storage at a public warehouse at the expense and
risk of Tenant; provided, however, that Landlord shall not
be obligated to remove and/or dispose of any such personal
property.
(c) If Landlord elects to reenter the Premises under
subsection (a)(ii) above and takes possession of the
Premises, Landlord may, but except to the extent required by
applicable law or court order, shall not be obligated to,
relet the Premises for a term, rate and upon such other
provisions as Landlord deems appropriate. If Landlord so
reenters and takes possession of the Premises, Landlord may
decorate, repair and alter the Premises to the extent
Landlord deems appropriate for purposes of such reletting.
If Landlord is unable to so relet the Premises, then Tenant
shall pay to Landlord monthly on the first day of each month
during the period that Tenant's right to possession is
terminated, a sum equal to the Rent due under this Lease for
that month. If the Premises are relet, Landlord shall apply
the rents therefrom first to payment of Landlord's expenses
incurred by reason of Tenant's default, second, to payment
of Landlord's expenses of reletting, including without
limitation, brokerage fees and reasonable attorneys' fees,
and third, to payment of Rent due from Tenant under this
Lease. All sums expended and concessions granted to any new
tenant shall be amortized on a straight -line basis over the
term of the ne'vY lease and Tenant's liability therefor
shall be limited to that portion attributable to the
unexpired term of this Lease. If the sums received from such
reletting are insufficient to satisfy the payment of Rent
due from Tenant under this Lease for any month, Tenant shall
remain liable for the deficiency. If the sums received from
such reletting exceed the Rent otherwise due from Tenant for
any month, Tenant shall have no rights thereto except that
such excess amounts shall be applied against Rent
subsequently due under this Lease. No such reletting by
Landlord shall be considered to be (A) for Landlord's own
account unless and until Landlord notifies Tenant that this
Lease has been terminated, and (B) an acceptance of Tenant's
surrender of the Premises unless and until Landlord so
notifies Tenant
(d) In the event of any termination of this Lease or
repossession of any of the Premises after the occurrence of
an Event of Default, Tenant shall pay to Landlord Base Rent,
Additional Rent and all other sums required to be paid by
Tenant to and including the date of such termination or
repossession and, thereafter, Tenant shall, until the end of
what would have been the Term in the absence of such
termination or repossession, and whether or not any of the
Premises shall have been relet, be liable to Landlord for
and shall pay to Landlord as liquidated and agreed current
damages: (i) Base Rent, Additional Rent and all other sums
which would be payable under this Lease by Tenant in the
absence of such termination or repossession, less (ii) the
net proceeds, if any, of any reletting pursuant to Section
15.2(c), after deducting from such proceeds all of
Landlord's reasonable expenses in connection with such re
letting (including without limitation, all reasonable
repossession costs,. brokerage commissions, legal expenses,
attorneys' fees, costs of Alteration and expenses of
preparation for reletting). Tenant hereby agrees to be and
remain liable for all sums aforesaid and Landlord may
recover such damages from Tenant and institute and maintain
successive actions or legal proceedings against Tenant for
the recovery of such damages. Nothing herein contained shall
be deemed to require Landlord to wait to begin such action
or other legal proceedings until the date when the Term
would have expired had there been no such Event of Default.
(e) At any time after such termination of this Lease
pursuant to Section 15.2(a)(i) or pursuant to law, whether
or not Landlord shall have recovered any amounts under
Section 15.2(c) or 15.2(d), Landlord, at its option, shall
be entitled to recover from Tenant and Tenant shall pay to
Landlord, on demand, as and for liquidated and agreed final
damages for Tenant's default, (i) the amount by which the
Base Rent and all Additional Rent reserved hereunder for the
unexpired portion of the Term demised herein as if the Lease
had not expired or been terminated exceeds the then fair and
reasonable rental value of the Premises for the same period,
discounted to present worth at the prime rate (as defined in
Section 24.6), minus any such monthly deficiencies
previously recovered from Tenant for such unexpired portion
of the Term demised herein under Section 15.2(c), plus (ii)
all reasonable legal fees and other costs and expenses
incurred by Landlord as a result of Tenant's default under
this Lease and the exercise of any rights and remedies
hereunder.
(f) If any statute or rule of law governing a
proceeding in which such liquidated final damages provided
for in Section 15.2(e) are to be proved shall validly limit
the amount thereof to an amount less than the amount above
agreed upon, Landlord shall be entitled to the maximum
amount allowable under such statute or rule of law.
(g) Mention in this Lease of any particular remedy
shall not preclude Landlord from any other remedy at law or
in equity. No right or remedy conferred upon or reserved to
Landlord in this Lease is intended to be exclusive of any
other right or remedy; and each and every right and remedy
shall be cumulative and in addition to any other right or
remedy contained in this Lease. No delay or failure by
Landlord or Tenant to enforce its rights under this Lease
shall be construed as a waiver, modification or
relinquishment thereof. Tenant waives any rights of
redemption granted by any laws if Tenant is evicted or
dispossessed, or if Landlord obtains possession of the
Premises by reason of the violation by Tenant of any of the
terms of this Lease.
15.3. FRANCHISOR RIGHTS.
(a) Landlord agrees to send a copy of any notice of
default required or permitted to be given to Tenant under
this Lease simultaneously to Franchisor at the last address
for Franchisor furnished to Landlord by Franchisor in
writing; provided, that the failure to send such notice
shall not limit Tenant's default or Landlord's remedies with
respect thereto, or make Landlord liable for any damages. If
Franchisor has received timely notice of such default,
provided, that the failure to send such notice shall not
limit Tenant's default or Landlord's remedies with respect
thereto or impose any liability upon Landlord therefor),
Landlord agrees and consents to the curing of any default of
Tenant hereunder by Franchisor, provided that such cure is
made by Franchisor within the time set forth in Section 15.l
for Tenant's cure provided that Franchisor shall have an
additional fifteen (15) days to cure a default under
Sections 15.1 (i) and (ii), so long as Franchisor notifies
Landlord within the cure periods set forth in such. Sections
that Franchisor will cure such defaults). If Franchisor
elects to cure any Tenant default hereunder, Franchisor
shall give notice to that effect to Landlord and Tenant
simultaneously with such cure.
(b) Notwithstanding anything to the contrary stated
herein, if an Event of Default has occurred (including the
expiration of any applicable cure period), Landlord agrees
to give notice thereof to Franchisor ("Termination Notice")
and Landlord will not terminate the Lease (as permitted
hereunder) on account of such Event of Default for a period
of thirty (30) days, during which time Franchisor shall have
the right to lease the Premises upon the same terms and
conditions as this Lease, such election to be made by notice
to that effect ("Franchisor Notice") from Franchisor to
Landlord prior to the end of said 30-day period. If
Franchisor exercises such right by giving the Franchisor
Notice to Landlord by the time and in the manner set forth
in the immediately preceding sentence, then (i) Franchisor
and Landlord shall promptly execute and deliver a written
instrument to that effect; (ii) Franchisor shall become the
tenant under this Lease with all of the right~ and
obligations of tenant commencing upon, first accruing and
effective only from and after the date of the Franchisor
Notice; provided, that Tenant shall not dispute such action
by Franchisor and shall acknowledge its approval of such
action by Franchisor; (iii) Franchisor shall have no
liability, responsibility or obligation to payor otherwise
cure any default of Tenant existing prior the effective date
of exercise by Franchisor of its rights in this subsection;
provided, that if Franchisor has received notice from
Landlord of any Event of Default of Tenant under Sections
15.1 (i) or (ii). Franchisor shall pay any Rent due and
payable by Tenant accruing after the date Franchisor
receives notice of any such Event of Default; and (iv)
nothing contained herein shall restrict, limit, terminate,
waive or otherwise affect Landlord's rights against Tenant
or any guarantor on account of Tenant's default. If
Franchisor fails to exercise such right on or before the
expiration of said thirty (30) day period Landlord may
pursue any rights and remedies that it may have against
Tenant on account of Tenant's Event of Default hereunder.
Nothing contained in this section shall be deemed to
obligate Franchisor to assume this Lease, to become the
tenant hereunder or to take possession of the Premises.
(c) In the event that Franchisor becomes the tenant
under this Lease pursuant to the provisions of subsection
(b) or an assignment under Section 13.2 above, Franchisor
shall have the right at any time thereafter upon prior
notice to, but without the prior consent of Landlord, to
assign this Lease and all of its right, title and interest
as Tenant hereunder to an authorized franchisee of
Franchisor. In the event of such an assignment, Franchisor
shall be released from all liabilities and obligations of
Tenant first accruing from and after the effective date of
said assignment provided that such assignee franchisee
assumes in writing the obligations of Tenant under this
Lease and a copy thereof is furnished to Landlord.
16. SURRENDER OF PREMISES
16.1. CONDITION. Upon the expiration or earlier
termination of this Lease or the termination of Tenant's
right of possession of the Premises only, Tenant shall
surrender the Premises to Landlord in a clean, safe, good
and tenantable condition, free of debris and with all
"grease traps" and similar devices cleaned and in good
working condition, ordinary wear and tear and, if this Lease
is terminated pursuant to Section 11.4(b), damage by
Casualty excepted. All building apparatus and equipment
(other than Tenant's Property) then located on the Premises
and all Alterations and other improvements to the Premises
made during the Term, whether by Tenant or others, shall
remain on the Premises and shall be considered part of the
Premises. Tenant shall deliver all keys therefor to Landlord
at the place then fixed for the payment of Rent and shall
make known to Landlord the combination for all locks on
safes, cabinets and vaults in the Premises.
16.2. REMOVAL OF TENANT'S PROPERTY. Upon the expiration or
earlier termination of this Lease or the termination of
Tenant's right of possession of the Premises only, Tenant
shall have the right, at its sole cost and expense, for a
period of fifteen ( 15) days thereafter to remove Tenant's
Property, Distinctive Property and the Financed Personalty,
respectively, from the Premises, provided that Tenant shall
pay to Landlord Rent due under Article 3 hereof for the
actual number of days which elapse during such fifteen (15)
day period until the Tenant's Property, Distinctive Property
and the Financed Personalty, as applicable, are removed from
the Premises. If and to the extent that Tenant fails to
remove any of such property by the expiration of said
fifteen (15) day period, Landlord agrees that Tenant Lender,
TE Lender and Franchisor each shall have the right for a
period of forty (45) days thereafter to remove the same from
the Premises, provided that Tenant shall pay to Landlord
Rent due hereunder for the actual number of days which
elapse until Tenant Lender, TE Lender or Franchisor remove
the same from the Premises during such forty five (45) day
period. If and to the extent that any such property remains
on the Premises on the sixtieth (60th) day after such
termination, the same shall be deemed abandoned, and at
Landlord's option shall become the property of Landlord and
may be sold or disposed of as Land-lord may determine;
provided, however, that Landlord shall not use, suffer or
permit the use of any Distinctive Property unless the
attributes or features thereof associated with Tenant or
Franchisor are removed or obliterated. Any and all damage to
the Building caused by or resulting from the removal of
Tenant's Property, Distinctive Property or Financed
Personalty shall promptly be repaired at no cost or expense
to Landlord and Tenant shall be liable for such cost and
expense unless such repairs are made by Tenant, Franchisor
or TE Lender, as the case may be.
17. SUBORDINATION AND ATTORNMENT
17.1. SUBORDINATION. This Lease and the rights of
Tenant hereunder are expressly subject and subordinate to
the lien of any mortgage or deed of trust constituting a
lien on Landlord's fee interest in the Premises ("Landlord
Mortgage") and any renewals, extensions, modifications,
consolidations and replacements thereof, which now or
hereafter affect all or any portion of the Premises (except
to the extent that any such instrument expressly provides
that this Lease is superior to it); provided that the holder
of the Landlord Mortgage ("Landlord Lender") agrees in
writing not to disturb Tenant, Tenant's right to possession
and use of the Premises and Tenant's rights under this Lease
so long as there shall be no Event of Default on behalf of
Tenant hereunder. Tenant agrees to execute and deliver to
Landlord and any Landlord Lender at any time and from time
to time all such documents reasonably requested by Landlord
or Landlord's Lender, which are reasonably acceptable to
Tenant and Tenant's Lender, to confirm or effect such
subordination including, without limitation, an SNDA
substantially in the form attached as Exhibit E; provided
that such Landlord Lender agrees to recognize this Lease and
the rights of Tenant set forth herein for so long as there
shall be no Event of Default on behalf of Tenant hereunder.
Notwithstanding any foreclosure or sale under any Landlord
Mortgage (or transfer by deed in lieu thereof), this Lease
shall remain in full force and effect in accordance with its
terms. Landlord and any Landlord Lender shall execute within
ten (10) days after request any documentation reasonably
required by any TF Lender or Tenant Lender, which are
reasonably acceptable to Landlord and any Landlord Lender,
to confirm the priority of such lender's interests.
Notwithstanding the provisions of this Section 17.1, the
holder of any Landlord Mortgage to which this Lease is
subject and subordinate shall have the right, at its sole
option, at any time, to subordinate and subject the Landlord
Mortgage, in whole or in part, to this Lease by recording a
unilateral declaration to such effect. Tenant hereby agrees
that any Landlord Lender shall not be bound to the terms of
any material modification or amendment of this Lease entered
into after the date of such Landlord Mortgage, unless such
Landlord Lender has consented to such material modification
or amendment. Tenant hereby agrees that after the date of
such Landlord Mortgage, Tenant shall not pay to Landlord any
installment of Base Rent more than one (I) month in advance
of the due date thereof, unless Landlord Lender shall
consent to such prepayment.
17.2. ATTORNMENT. In the event of the foreclosure of
any Landlord Mortgage by voluntary agreement or otherwise,
or the commencement of any judicial action seeking such
foreclosure, Tenant will become the tenant of and attorn to
and recognize such Landlord Lender or purchaser in
foreclosure as Tenant's landlord under this Lease without
change in the provisions of this Lease. Upon request by such
successor in interest, Tenant will execute and deliver an
instrument confirming such attornment, which will recognize
this Lease and the rights of Tenant set forth herein and
shall provide that such successor in interest will not
disturb Tenant in its use of the Premises in accordance with
this Lease unless there is an Event of Default continuing
hereunder and such successor in interest would be entitled
to exercise such remedy under Section 15.2 hereof.
18. ESTOPPEL CERTIFICATES
18.1. ESTOPPEL CERTIFICATES. Within fifteen (15) days
after Written request from Landlord or Tenant to the other,
such other party shall execute and deliver an estoppel
certificate signed by an officer of such party and
certifying: the Commencement Date and expiration date of the
Term; the date to which Rent has been paid; the amount of
Rent then being paid; that this Lease is in full force and
effect and has not been modified, amended or assigned (or,
if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force
and effect); that to such party's knowledge there are no
defaults by the other party under this Lease, nor to such
party's knowledge any existing condition upon which the
giving of notice or lapse of time or both would constitute a
default (or, if such exist, stating the nature thereof);
that such party has received no notice from any insurance
company of any defects or inadequacies of the Premises; that
such party has no options or rights other than as set forth
in this Lease; and such other factual matters as the
requesting party may reasonably request. Failure to deliver
such statement within said fifteen (15) day period shall be
conclusive upon the party to whom the request was directed
that this Lease is in full force and effect, without
modification except as may be represented by the requesting
party in the draft estoppel presented, that to such party's
knowledge there are no uncured defaults in the requesting
party's performance, and that all other statements required
to be made in the estoppel letter are conclusively made.
19. NOTICES
19.1. NOTICES. All notices required or permitted to be
given under this Lease shall be in writing and shall be
deemed given on the date when personally delivered or, if
earlier, the next business day if sent by recognized
overnight air courier, or two (2) business days (or, if
earlier, when actually received) after being deposited in
the United States Mail, postage prepaid, properly addressed,
certified mail, return receipt requested, as follows:
TO LANDLORD: At the address set forth in Section 1.2,
With a copy to: Liechty & McGinnis, P.C.
7502 Greenville Avenue,
Suite 750
Dallas, Texas 75231
Attention: Lome 0. Liechty, Esq.
TO TENANT At the address set forth in Section 1.3,
With a copy to: Peter B. Loughman, Esq.
155 North Michigan Avenue,
Suite 600
Chicago, Illinois 60601
TO FRANCHISOR: Applebee's International, Inc.
4551 West 107th Street,
Suite 100
Overland Park, Kansas 66207
Attention: General Counsel
Each entity or person entitled to receive notice or a copy
thereof pursuant to this Lease (" Addressee") at any time
and from time to time may change its address for notice
purposes by giving notice of such change to all other
Addressees in any manner specified above at least fifteen
(15) days before such change of address is to become
effective.
20. LEASEHOLD FINANCING
20.1. LEASEHOLD FINANCING. Tenant shall have the right
at any time and from time to time during the Term with
notice to, but without the consent or approval of Landlord,
to grant a mortgage or other security interest ("Leasehold
Mortgage") in Tenant's interest in this Lease (the leasehold
estate created hereby), and all of Tenant's Property, all
upon the condition that all rights acquired under any such
Leasehold Mortgage shall be subject to each and all of the
covenants, conditions, terms and restrictions set forth in
this Lease. Tenant Lender's foreclosure on the Leasehold
Mortgage shall not terminate this Lease or affect any of the
covenants, conditions, terms and restrictions set forth in
this Lease as obligations of Tenant.
20.2. TENANT LENDER. If Landlord is provided written
notice of a Leasehold Mortgage and the name and address for
notice of the holder of a Leasehold Mortgage (the "Tenant
Lender"), then the rights of such Tenant Lender shall
include the following, which shall be binding on Landlord
(and any Landlord Lender). Upon recordation of the Leasehold
Mortgage and for so long thereafter as the Leasehold
Mortgage remains unsatisfied: (i) Landlord agrees to deliver
a copy of any notice of default given to Tenant under this
Lease simultaneously to Tenant Lender at its last address
furnished to Landlord in writing; provided, that the failure
to send such notice shall not limit Tenant's default or
Landlord's remedies against Tenant with respect thereto
(other than such remedies as would prevent the exercise of
Tenant Lender's rights under this Section 20.2), or impose
any liability upon Landlord for any damages therefrom; (ii)
Landlord agrees that Tenant Lender shall have the right, but
shall not be obligated, to cure any default of Tenant
hereunder provided that such cure is made by Tenant Lender
within the time provided to Tenant pursuant to Section 15.1
provided, that such Tenant Lender shall have an additional
fifteen (15) days to cure a default under Sections 15.1(i)
and 15.1(ii), so long as Tenant Lender notifies Landlord
within the cure periods set forth in such Sections that it
will cure such defaults); (iii) if Tenant Lender elects to
cure any default of Tenant hereunder, (A) Tenant Lender
shall give notice to that effect to Landlord and Tenant
simultaneously with such cure, and (B) Landlord consents to
and shall accept such cure with the same force and effect as
if made by Tenant; (iv) Landlord and Tenant each agree not
to cancel or surrender this Lease (other than due to a
default by a party which was riot cured within the
applicable cure period after notice was given to Tenant and
Tenant Lender) or amend the provisions of this Lease without
the prior written consent of Tenant Lender, which consent
shall not be unreasonably withheld or delayed; and (v) if
Landlord terminates the Lease due to an Event of Default
which Tenant Lender is unable to cure (e.g., Tenant
bankruptcy), and Tenant Lender elects by written notice to
Landlord within forty-five (45) days thereafter to continue
this Lease, Landlord agrees to enter into a new lease with
Tenant Lender on the same terms and conditions as set forth
in this Lease for the balance of the original Term,
including any remaining extension options, provided, that
the Tenant Lender shall pay to Landlord at the time of the
execution and delivery of the new lease all sums which would
at the time of the execution and delivery of the new lease
be due pursuant to this Lease but for such termination, and
shall agree in writing to cure and shall cure all other
defaults of Tenant capable of being cured by Tenant Lender
then existing under this Lease within a reasonable period of
time after entering into such new Lease. Landlord agrees
promptly to execute and deliver such documents as Tenant
Lender reasonably may request which are reasonably
acceptable to Landlord and any Landlord Lender to evidence
the provisions of this Section 20.2, including the Landlord
Agreement in the form attached hereto as Exhibit B.
21. RIGHT OF FIRST REFUSAL
21.1. RIGHT OF FIRST REFUSAL TO PURCHASE.
(a) If at any time after the first anniversary of the
Commencement Date Landlord shall receive a bona fide written
offer to purchase the Premises or any portion thereof or a
direct controlling interest in Landlord's ownership (whether
stock, partnership interests or membership interests) from a
third party which is not affiliated with Landlord, which
offer Landlord or its ownership is willing' to accept
("Outside Contract"), Landlord shall give written notice
("Sale Notice") thereof, together with a copy of such
Outside Contract, to Tenant. Tenant shall have a right of
first refusal ("Refusal Right") to purchase the Premises or
the controlling interest therein or the portion of
Landlord's ownership interests that is the subject of the
Outside Contract in accordance with the terms and provisions
thereof. If Tenant desires to exercise the Refusal Right,
Tenant shall deliver written notice to that effect to
Landlord within twenty (20) days after receipt of the Sale
Notice ("Refusal Period"). If Tenant exercises the Refusal
Right by the time and in the manner set forth in this
subsection, Landlord and Tenant shall promptly execute a
contract which includes the same material terms and
conditions as the Outside Contract ("Sale Contract") and
Tenant shall deposit when due any earnest money deposit
required thereunder. If Tenant does not execute a Sale
Contract within fifteen (15) days after Tenant's receipt of
such Sale Contract from Landlord, signed on behalf of
Landlord, or if Tenant defaults in its obligations under
such Sale Contract, then Landlord shall be free to
consummate the sale pursuant to the Outside Contract {or
another contract on substantially similar terms and
conditions).
(b) If Tenant does not exercise the Refusal Right by
the time and in the manner set forth in subsection (a)
above, then (i) the Refusal Right shall remain in full force
and effect, but not with respect to the proposed sale
pursuant to the Outside Contract, and (ii) Landlord shall be
free to consummate the sale pursuant to the Outside
Contract. If within one hundred eighty (180) days after the
expiration of the Refusal Period Landlord does not
consummate the sale pursuant to the Outside Contract, the
Refusal Right shall again be applicable, and Landlord shall
not thereafter sell the Premises or the Landlord's ownership
interests pursuant to the Outside Contract without first
offering Tenant the Refusal Right pursuant to this Section
21.1.
(c) The rights granted to Tenant under this Section 21
shall not survive the expiration or termination of this
Lease.
(d) The provisions of this Section 21 shall not apply
and Tenant shall not have any Refusal Right (i) with respect
to the sale, conveyance, assignment or other transfer (A) to
any person controlling, controlled by, or under common
control with Landlord or any of its direct or indirect
owners, (B) by gift, descent or devise, or (C) to any saJe
..<or conveyance in lieu thereof) by foreclosure or
enforcement of a lien or security interest, or (ii) at any
time that an Event of Default has occurred and is
continuing. Any conveyance of the Premises to Tenant
pursuant to this Section 21 shall be "as-is" with respect to
the physical condition of the Premises.
(e) Except as hereinafter provided, Tenant may assign
the Refusal Right which arises under this Section 21.1 to
AAG or an AAG Affiliate (as hereinafter defined) upon (and
only upon) satisfaction of all of the conditions set forth
in this Section 21.1 (e); provided, however, that if the
Refusal Right is assigned to AAG or an AAG Affiliate
pursuant to this Section 21.1 (e), then thereafter the
Refusal Right may not be subsequently assigned to or
enforced by any person or entity that is not an AAG
Affiliate. In order for Tenant to assign the Refusal Right
pursuant to this Section 21.1 (e), it must satisfy the
following conditions, and if any such conditions are not
satisfied, then any purported assignment of the Refusal
Right shall be deemed void and of no force or effect: (i)
Tenant must give Landlord thirty (30) days prior written
notice of its intent to assign the Refusal Right, together
with a certificate of a responsible officer of AAG that the
assignee is an AAG Affiliate and together with the address
of such Assignee to which Landlord is required to send the
Sale Notice contemplated by Section 21.1(a) hereof; (ii)
Landlord and Tenant shall enter into an amendment to this
Lease which deletes Section 21 from this Lease which
amendment shall be subject to the prior written approval of
the Landlord Lender, if any, and of the Tenant Lender, if
any; (iii) Landlord and Tenant shall execute an amendment to
any memorandum of lease (or similar instrument) which is of
record specifying that the Refusal Right no longer exists
under this Lease; (iv) Landlord and the assignee of the
Refusal Right shall enter into a Right of First Refusal
Agreement which provides that (A) the Refusal Right has been
assigned to AAG (or the applicable AAG Affiliate), (B) such
Refusal Right shall be on the exact terms and subject to the
same limitations as set forth in this Section 21.1, except
that AAG (or the applicable AAG Affiliate) shall have no
further right to assign the Refusal Right as contemplated by
this Section 21.1 (e), (C) such Refusal Right shall expire
at the end of the Term of this Lease or, if sooner, at such
time as this Lease may otherwise be terminated, and (D) if,
at any time that the Tenant under this Lease is not an AAG
Affiliate, AAG (or the applicable AAG Affiliate which is the
assignee of the Refusal Right) does not exercise the Refusal
Right with respect to any proposed sale, then the Refusal
Right shall thereafter terminate and be of no further force
and effect provided, that if such proposed sale is not
consummated within one hundred eighty ( 180) days after the
expiration of the Refusal Period, the Refusal Right shall
not terminate as a result of the failure to exercise the
Refusal Right with respect to such proposed sale); and (v)
AAG shall execute and deliver to Landlord, an instrument, in
form reasonably satisfactory to Landlord, acknowledging that
AAG's Guaranty of the Tenant's obligations under this. Lease
shall remain in full force and effect notwithstanding the
assignment of the Refusal Right and the amendment of this
Lease in connection therewith. As used herein, the term "
AAG Affiliate" means any entity controlling, controlled by
or under common control with AAG or its Members.
Notwithstanding the foregoing, Tenant may not assign the
Refusal Right at any time (A) after Landlord has delivered a
Sale Notice under Section 21.1(a) hereof (unless and until
the Refusal Right is revived pursuant to Section 21.1 (b)
hereof). or ( B) after an Event of Default has occurred and
is continuing under this Lease.
22. TENANT'S RIGHT TO SUBSTITUTE THE PREMISES
(a) If (x) no Event of Default has occurred and is
continuing hereunder and (y) Tenant has determined that the
Premises are not adequately profitable, then Tenant shall
have the right, at any time and from time to time during the
Term of this Lease but after the second (2nd) anniversary of
the Effective Date of this Lease, to exchange for the then
Premises another property which Tenant, or an affiliate,
parent or subsidiary of Tenant operates as an Applebee's (or
other name permitted under this Lease) restaurant
(hereinafter referred to as the "Exchange Property");
provided, that the following conditions shall have been
satisfied:
(i) Tenant shall notify Landlord in writing (the
"Substitution Notice") that Tenant has elected to
exchange the Exchange Property for the ~ Premises
pursuant to this Section 22; and
(ii) Tenant shall deliver to Landlord the
following within ninety (90) days after the delivery of
the Substitution Notice but in any event not less than
thirty (30) days prior to the closing of the exchange
contemplated by this Section 22:
(A) The street address and legal description
of the Exchange Property,
(B) An AL T AI ACSM survey of the Exchange
Property on which the improvements thereon are
shown in relation to the property lines, which
survey shall comply with the reasonable
requirements of Landlord, shall not show any
defects or encumbrances which would render title
unmarketable or would detract from the ability to
operate the Exchange Property as a restaurant, and
shall be certified to Landlord and each Landlord
Lender in a form reasonably satisfactory to
Landlord and each Landlord Lender (such survey to
be recertified at the closing of the exchange),
(C) An Appraisal of the Premises and of the
Exchange Property by a member of the American
Institute of Real Estate Appraisers, reasonably
approved in advance by Landlord, demonstrating
that as of a date after the date of the
Substitution Notice, the fair market value of the
Exchange Property is equal to or greater than the
fair market value of the Premises as of the date
of the Substitution Notice (without taking the
existence of this Lease into consideration in
either valuation), which appraisals shall be
performed using substantially the same criteria as
those used for determining the value of the
Premises at the time Landlord acquired the then
Premises,
(D) A certificate from an officer of Tenant
to the effect that the Exchange Property complies
with all material laws and legal requirements and
its intended use does not violate any covenant,
condition, restriction or agreement affecting the
Exchange Property,
(E) A certificate from an officer of Tenant
to the effect that the Exchange Property and the
operation thereof will be in compliance with this
Lease at the time of the exchange,
(F) A certificate from an officer of Tenant
to the effect that all reciprocal easement
agreements, operating agreements and similar
agreements benefiting the Exchange Property are in
full force and effect and that Tenant has not
given or received any notice of default and has no
knowledge of any default thereunder that remains
uncured,
(G) Evidence (through the delivery of
certificates or policies of insurance) that the
Exchange Property is covered by insurance as
required in this Lease with evidence that premiums
due thereon are paid in full, all as more fully
set forth in Section 12.1 of this Lease,
(H) Evidence reasonably satisfactory to
Landlord that the improvements located on the
Exchange Property are not in a flood hazard area,
(I) A commitment to issue as of the date of
such exchange, an Owner's and a Mortgagee's Policy
of Title Insurance for the Exchange Property,
containing exceptions not materially more onerous
than those in the Landlord and Landlord Lender's
Policies of Title Insurance for the Property
("Existing Policy") and with endorsements similar
in type and cost to those in effect under the
Existing Policy,
(J) Tenant's agreement to pay all reasonable
costs in connection with the exchange including,
but not limited to, recording charges, stamp
taxes, transaction and other transfer taxes, title
insurance premiums, and reasonable legal expenses
of Landlord and each Landlord Lender in effecting
the exchange (but excluding any charges for
obtaining legal opinions or amounts payable by
Landlord to Landlord Lender other than for the
reasonable out-of-pocket expenses of Landlord
Lender and excluding any income tax liability of
Landlord),
(K) A true and correct copy of each
instrument affecting title to the Exchange
Property, which instruments shall not impose
obligations or liabilities on Landlord or any
Landlord Lender substantially more burdensome than
those imposed by the Permitted Encumbrances with
respect to the Premises,
(L) An ASTM standard Phase I Environmental
Site Assessment and, if recommended in said Phase
I Environmental Site Assessment, a Preliminary
Asbestos Survey of the Exchange Pr9perty and other
appropriate testing (all not more than ninety (90)
days old at the date of the Substitution Notice),
prepared by a qualified reputable environmental
engineering firm engaged at Tenant's expense,
showing that there are no recognized environmental
conditions requiring further investigation and/or
remediation under any applicable Environmental
Laws,
(M) A certification by Tenant to Landlord and
Lender containing representations and wa1Tanties
with respect to the Exchange Property
substantially comparable (to the extent
applicable) to those made by Tenant (or any of its
affiliates) to Landlord upon Landlord's
acquisition of the then Premises,
(N) A certificate of occupancy, if available,
relating to the Exchange Property,
(0) A Tenant Estoppel Certificate and a
Subordination, Non-Disturbance and Attornment
Agreement in the form attached as Exhibit E or in
such other form as may be reasonably acceptable to
Tenant and any Landlord Lender,
(P) An undertaking by Guarantor to deliver
upon the closing of the exchange a reaffirmation
of the Guaranty with respect to the lease for such
Exchange Property, and
(Q) Such other information regarding the
Exchange Property or .the exchange transaction as
Landlord may reasonably request;
(iii) All documentation with respect to the re-
lease and exchange, including, without limitation,
appropriate amendments to this Lease (including,
without limitation, amendments to reflect the
substitution of the Exchange Property for the Premises
hereunder) or, if requested by Landlord, a new lease
with respect to the Exchange Property on exactly the
same executory terms as this Lease (except that the
term shall be for the then remaining Term hereunder and
except for any necessary state law changes), a special
warranty deed (or local equivalent) conveying title to
the Exchange Property to Landlord, a bill of sale
conveying any personal property related to the Exchange
Property, shall be substantially comparable to the
documentation utilized upon Landlord's acquisition of
the then Premises.
(b) Landlord shall cause each Landlord Lender to agree
that it will secure the release of any Mortgage on the
Premises granted by Landlord upon compliance by Tenant with
the foregoing terms and conditions; provided that such
Landlord Lender shall be entitled to a first Mortgage lien
on Landlord's interest in the Exchange Property.
(c) Tenant shall reasonably cooperate with Landlord to
structure any exchange transaction so to minimize any
potential income tax liability to Landlord by reason of
such exchange.
(d) Closing of the exchange transaction shall take
place on a date mutually acceptable to Landlord and Tenant
at the office of Landlord or through a title company escrow.
At the closing of the exchange of the Exchange Property for
the Premises, (i) Tenant shall provide evidence that the
Exchange Property is owned in fee simple by Tenant, the
Guarantor or an affiliate of Tenant and is not subject to
any mortgages, deeds of trust, security agreements or other
instruments securing the repayment of any debt or the
performance of any obligation or undertaking, or any
mechanic's, materialman's, judgment or similar liens; (ii)
Landlord shall convey the Premises to Tenant by special
warranty deed (or its local equivalent), AS IS, WHERE IS AND
WITH ALL FAULTS AND WITHOUT ANY WARRANTY, EXPRESS OR
IMPLIED, AS TO THE CONDITION OF THE PREMISES, free and clear
of any liens created or consented to by Landlord other than
(A) the same Permitted Encumbrances as set forth in the
Existing Policy or otherwise agreed to by Tenant, (B) liens
or encumbrances created or suffered by Tenant or arising by
reason of the failure of Tenant to observe or perform any of
the terms, covenants or agreements herein provided to be
observed and performed by Tenant, and (C) any installments
of Premises Taxes then affecting the Premises, and (iii)
Tenant shall convey the Exchange Property to Landlord by
Special Warranty Deed (or local equivalent) AS IS, WHERE IS
AND WITH ALL FAULTS, AND WITHOUT ANY WARRANTY , EXPRESS OR
IMPLIED, AS TO THE CONDITION OF THE PREMISES, but with all
representations and warranties required to be made by Tenant
or as hereinabove provided, subject only to such exception
as may be permitted in accordance with this Section 22.
Further, at closing Tenant shall deliver to Landlord and any
Landlord Lender (I) the amendments to lease (or new lease),
lease guaranty, Tenant Estoppel Certificate and
Subordination, Non-Disturbance and Attornment Agreement, all
as contemplated by subparagraph (a) of this Section .22,
together with such other documents, instruments and
agreements contemplated by subparagraph (a) of this Section
22 or reasonably requested by Landlord to evidence the
exchange of the Exchange Property for the Premises and the
consummation of the exchange transaction contemplated
hereby; (2) evidence reasonably satisfactory to Landlord
that the fair market value of the Exchange Property as set
forth in Appraisal referenced in Section 22(a)(ii)(C) above
has not materially reduced; (3) an opinion of counsel
stating that the lease guaranty has been duly authorized,
executed and delivered by the guarantor and is a valid,
binding and enforceable in accordance with its terms and (4)
an opinion of counsel stating that the new lease has been
duly authorized, executed and delivered by Tenant or its
affiliate. Further, Tenant shall pay all reasonable costs
and expenses of closing the exchange transaction and shall
perform all of its other obligations as contemplated by this
Section 22.
(e) Tenant's obligations under this Section 22,
including, without limitation, entering into a new lease of
the Exchange Property, may be performed by affiliates of
Tenant.
23. GUARANTY
23.1. Simultaneously with the execution of this Lease,
Tenant shall cause to be delivered to Landlord a guaranty in
the form attached hereto as Exhibit D (the "Guaranty"),
pursuant to which AAG shall guaranty Tenant's obligations
hereunder.
24. MISCELLANEOUS
24.1. LANDLORD'S INTERESTS.
(a) The term "Landlord" as used herein shall mean only
the owner or owners, at the time in question; of the fee
title to the Premises. In the event of an assignment or
transfer of this Lease by Landlord for other than security
purposes, Landlord shall cause its assignee or transferee to
assume the provisions of this Lease and Landlord shall
deliver notice of such assignment or transfer and a copy of
the effective instrument of transfer to Tenant. Tenant shall
be entitled to continue to pay rent and give all notices to
Landlord until Tenant has received the foregoing from
Landlord. From and after a sale of the Premises, Landlord
shall be released from all liability toward Tenant arising
from this Lease because of any act, occurrence or omission
of Landlord's successors occurring after the transfer of
Landlord's interest in this Lease, provided Landlord's
purchaser or assignee expressly assumes Landlord's duties
and covenants under this Lease. Nothing herein shall be
deemed to relieve Landlord of any liability for its acts,
omissions or obligations occurring or accruing up to and
including the date of such transfer.
(b) Anything contained herein to the contrary
notwithstanding, any claim based on or in respect of any
liability of Landlord under this Lease shall be enforced
only against Landlord's interest in the Premises and shall
not be enforced against Landlord individually or personally.
(c) Landlord shall have the right to sell, assign or
transfer its interest in the Premises without any prior
notice to or consent of Tenant, subject to compliance with
the provision of Section 21 of this Lease, if applicable.
24.2 SEVERABILITY .If any provision of this Lease or
the application thereof to any person or circumstance shall
be invalid or unenforceable under applicable law, such event
shall not affect, impair or render invalid or unenforceable
the remainder or any other provision of this Lease, nor
shall 11it affect the application of any provision of this
Lease to other persons or circumstances.
24.3 ENTIRE AGREEMENT. This Lease and the Exhibits
attached hereto set forth the entire agreement between
Landlord and Tenant concerning the Premises and there is no
other agreement, oral or written, between them other than
this Lease. This Lease supersedes and revokes all previous
negotiations, arrangements, letters of intent, offers to
lease, lease proposals and information conveyed, whether
orally or in writing, between the parties or their
respective representatives.
24.4 TIME. Time is of the essence of this Lease and the
performance of all obligations under this Lease.
24.5 BINDING EFFECT. This Lease shall be binding upon
and inure to the benefit of Landlord, Tenant and their
respective successors and assigns.
24.6 DEFAULT RATE. All amounts owing to one party from
the other party under this Lease for which a date of payment
is not expressly fixed shall be paid within ten (10) days
after the date the party to whom such amount is payable
delivers to the other party appropriate statements of
account. As used in this Lease, the words "Default Rate"
shall mean interest at the rate of four percent (4%) per
annum in excess of the "prime rate" from time to time
announced in The Wall Street Journal or if such publication
ceases to publish a prime rate then as announced by a
comparable publication. The Default Rate of interest shall
be computed from the date on which any payment is due from
either party to the other through and including the date
paid.
24.7 FORCE MAJEURE. Neither Landlord nor Tenant shall
be considered in default of any of the terms, covenants and
conditions of this Lease on its part to be performed, if it
fails to timely perform same and such failure is due in
whole or in part to any strike, lockout, labor trouble
(whether legal or illegal), civil disorder, restrictive
governmental laws and regulations riots, insurrections, war,
accidents, casualties, acts of God, acts caused directly or
indirectly by the other party hereto (or such party's agent,
employees or invitees) or any other cause beyond its
control. A party shall be entitled to an extension of time
equal to one (1) day for each day of delay due to force
majeure. The foregoing shall not apply to, excuse or be
invoked to justify any delay in the payment of Rent or any
other sum of money due from one party payable to the other
party.
24.8 NO WAIVER. No provision of this Lease shall be
deemed to have been waived by either party unless such
waiver is in writing signed by such party.
24.9 CAPTIONS. The captions and headings in this Lease
are inserted only as a matter of convenience and do not
define, limit, expand or describe the scope or intent of
such provisions.
24.10 SURVIVAL. The following obligations of Landlord
and Tenant shall survive the expiration or earlier
termination of this Lease: (a) any obligation permitted in
this Lease to be performed after the end of the Term; (b)
any obligation not reasonably susceptible of performance
prior to the end of the Term; and (c) any other obligation
expressly stated to survive termination.
24.11 APPLICABLE LAW. This Lease and the rights and
obligations of Landlord and Tenant hereunder shall be
governed by and construed in accordance with the laws and
judicial decisions in effect in the State in which the
Premises is located.
24.12 AMENDMENT. No amendment to the provisions of this
Lease shall be effective or enforceable unless made in
writing and signed by Landlord and Tenant.
24.13 Approvals; Consents. Every approval and consent
provided for in this Lease shall be made in writing.
24.14 RIGHTS AND REMEDIES. All rights and remedies
granted or referred to in this Lease shall be distinct,
separate and cumulative and none shall exclude any other
right or remedy of either party set forth in this Lease or
available at law or in equity.
24.15 HOLDOVER. If Tenant retains possession of the
Premises after the expiration of the Term without the
express written consent of Landlord, the monthly Base Rent
payable by Tenant for each month of the period of such
holding over shall be an amount equal to one hundred twenty-
five percent (125%) of the monthly Base Rent in effect
immediately preceding such holdover period; provided,
however, that no payment of such increased monthly Rent by
Tenant shall be deemed to extend or renew the Term. In the
event that Landlord gives written consent to Tenant to
remain in occupancy beyond the expiration of the Term, such
occupancy shall be construed to be a renewal of this Lease
for a month-to-month tenancy upon all of the terms and
conditions set forth in this Lease, except that, unless
otherwise provided in Landlord's consent, monthly Base Rent
payable by Tenant for any such period of holdover tenancy
shall be at the rate equal to one hundred percent (100%) of
the monthly Base Rent in effect immediately preceding such
holdover period.
24.16 MEMORANDUM. Landlord and Tenant agree to
complete, execute, deliver and record in the county in which
the Premises are located a short form memorandum of this
Lease substantially in the form and substance attached
hereto as Exhibit C ("Memorandum"). Tenant shall pay all
fees, taxes, costs ands expenses to record the Memorandum.
24.17 NO THIRD-PARTY RIGHTS. The terms and provisions
of this Lease shall-not be deemed to confer any rights upon,
nor obligate Landlord or Tenant to, any person or entity
other than the parties hereto, except for any Landlord
Lender, Tenant Lender, TE Lender and Franchisor if and to
the extent specifically provided herein.
24.18 LANDLORD ACCESS. Upon not less than twenty-four
(24) hours' prior notice (except in the case of an
emergency), Landlord may enter upon the Premises during
Tenant's non-peak business hours for purposes of inspection
and showing the Premises to prospective purchasers or
lenders. When entering the Premises, Landlord, its agents,
employees and/or contractors (a) shall identify themselves
to Tenant's personnel immediately upon entering the
Premises, and (b) shall not, in any way, materially or
unreasonably affect, interrupt or interfere with Tenant's
use, business or operations on the Premises or obstruct the
visibility of or access to the Premises.
24.19 DUE AUTHORITY.
(a) Landlord represents and warrants to Tenant as
follows: (i) that Landlord is a limited liability company
created, validly existing and in good standing under
Delaware law; (ii) that Landlord has full right, power and
authority to enter into and to perform its obligations under
this Lease and that no consent or approval of any third
parties is necessary in order to do so or that all such
consents and approvals have been obtained; and (iii) that
this Lease, when signed- by Landlord, is a legal, valid and
binding obligation of Landlord enforceable in accordance
with its terms.
(b) Tenant represents and warrants to Landlord as
follows: (i) that Tenant is a limited liability company
created, validly existing and in good' standing under
Delaware law; (ii) that Tenant has full right, power and
authority to enter into and to perform its obligations under
this Lease and that, except as otherwise specifically
provided herein no consent or approval of any third parties
is necessary in order to do so; and (iii) that this Lease,
when signed by Tenant, is a legal, valid and binding
obligation of Tenant enforceable in accordance with its
terms.
24.20 RELATIONSHIP OF PARTIES. Nothing contained in
this Lease shall be deemed to constitute a partnership or
joint venture between Landlord and Tenant. The relationship
of Landlord and Tenant shall only be deemed to be one of
landlord and tenant.
24.21 Preparation and Signing of Lease. This Lease has
been negotiated and reviewed by Landlord, Tenant and their
respective attorneys and/or professional advisors, all of
whom intend and believe this Lease to be the product of all
of their joint efforts, that it contains the entire
agreement between Landlord and Tenant and as such should not
and shall not be interpreted or construed in favor of or
against either Landlord or Tenant merely because of the
efforts of one party or the other in preparing this Lease.
The submission of this Lease for review or execution does
not constitute a reservation of or option for the rights
conferred herein. This Lease shall become effective only if
and when executed and delivered by both Landlord and Tenant.
24.22 BROKER. Landlord and Tenant each warrant and
represent to the other that it has not dealt with any real
estate broker, salesperson or finder in connection with this
Lease, except for CB Richard Ellis, Inc. ("Broker"). Tenant
shall be responsible for the payment of any fee, commission
or other compensation due to Broker on account of this
transaction pursuant to the terms of a separate agreement
between Landlord and Broker and Tenant shall indemnify.
defend and hold Landlord harmless from and against all such
fees, commissions and other compensation to Broker. Landlord
and Tenant each agree to indemnify, defend and hold the
other party harmless from and against any and all
liabilities and claims for commissions and fees arising out
of a breach of its representation and warranty set forth
herein.
24.23 SEPARABILITY. Each and every covenant and
agreement of Tenant contained in this Lease is, and shall be
construed to be, a separate and independent covenant and
agreement, and the breach of any covenant or agreement by
Landlord shall not discharge or relieve Tenant from its
obligation to perform the same.
24.24 MULTIPLE COUNTERPARTS. To facilitate execution,
this Lease may be executed in as many counterparts as may be
convenient or required. It shall not be necessary that the
signature or acknowledgment of, or on behalf of, each party,
or that the signature of all persons required to bind any
party, or the acknowledgment of such party, appear on each
counterpart. All counterparts shall collectively constitute
a single instrument. It shall hot be necessary in making
proof of this Lease to produce or account for more than a
single counterpart containing the respective signatures of,
or on behalf of, and the respective acknowledgments of, each
of the parties hereto. Any signature or acknowledgment page
to any counterpart may be detached from such counterpart
without impairing the legal effect of the signatures or
acknowledgments thereon and thereafter attached to another
counterpart identical thereto except having attached to it
additional signature or acknowledgment pages.
24.25 BUSINESS DAYS. All references to "business days"
contained herein are references to normal working business
days, i.e., Monday through Friday of each calendar week
exclusive of federal and national bank holidays. In the
event that any event hereunder is to occur, or a time period
is to expire, on a date which is not a business day, such
event shall occur or such time period shall expire on the
next succeeding business day.
24.26 INTERPRETATION. When the context in which words
are used in this Lease indicates that such is the intent,
words in the singular number shall include the plural and
vice versa, and words in the masculine gender shall include
the feminine and neuter genders and vice versa. Further,
references to "person" or "persons" in this Lease shall mean
and include any natural person and any corporation,
partnership, joint venture, limited liability company, trust
or other entity whatsoever. As used herein, the term
"including" shall mean "including, but not limited to".
24.27 NO MERGER OF TITLE. There shall be no merger of
this Lease nor of the leasehold estate created by this Lease
with the fee estate in or ownership of any of the Premises
by reason of the fact that the same person, corporation,
firm or other entity may acquire or hold or own, directly or
indirectly, (a) this Lease or the leasehold estate created
by this Lease or any interest in this Lease or in such
leasehold estate and (b) the fee estate or ownership of any
of the Premises or any interest in such fee estate or
ownership. No such merger shall occur unless and until all
persons, corporations, firms and other entities having any
interest in (i) this Lease or the leasehold estate created
by this Lease and (ii) the fee estate in or ownership of the
Premises or any part thereof sought to be merged shall join
in a written instrument effecting such merger and shall duly
record the same.
24.28 Financial Reporting. During the Term of this
Lease, Tenant will deliver or cause to be delivered to
Landlord the following financial information at the
following times:
(a) During any twelve (12) month period and at
Landlord's request but in no event more that two (2)
times per year, unless such request is required in
order for Landlord to obtain financing and in such
event, when reasonably necessary, within thirty (30)
days of said request, the most recent quarterly and
year-to-date consolidated balance sheets and income and
cash flow statements for the Tenant and for AAG and the
accompanying unit level profit and loss statements for
each Premises for that period; and
(b) within one hundred and twenty (120) days after
the end of each fiscal year of Tenant and AAG, annual
consolidated balance sheets and income and cash flow
statements for the Tenant and for AAG for the
immediately preceding fiscal year, all in reasonable
detail and prepared in accordance with generally
accepted accounting principles, consistently applied,
including unit level profit and loss statements for
that period for the Premises.
The annual financial statements which are to be
delivered as provided above shall have been prepared and
certified by an independent certified public accountant. All
other financial statements to be delivered pursuant to this
Section 24.28 shall be un-audited and certified to Landlord
to be reasonably true and correct by the Tenant's controller
or other officer. Landlord shall have the right, upon
reasonable advance notice, to meet with appropriate officers
of Tenant and AAG to discuss their respective affairs and
finances and the financial information delivered pursuant
hereto.
IN WITNESS WHEREOF. Landlord and Tenant have executed this
Lease as of the day and year first above written.
LANDLORD: PRECO II CRIC LLC
Date: October 21, 2003 By:/s/ Marjorie Palace
Marjorie Palace
Authorized Person
TENANT: APPLE OHIO LLC
Date: October 21, 2003 By: /s/ Lorin Cortina
Lorin M Cortina
Executive Vice
President
ACKNOWLEDGEMENTS
STATE OF ILLINOIS )
)SS
COUNTY OF CLARK )
I Belinda Loza, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY, that Marjorie
Palace personally known to me to be the Authorized Person of
PRECO II CRIC LLC, a Delaware limited liability company
("Company"), and personally known to me to be the same
person whose name is subscribed to the foregoing instrument
as such Marjorie Palace, appeared before me this day in
person and acknowledged that she signed and delivered the
said instrument as her own free and voluntary act, and as
the free and voluntary act and deed of said Company, for the
uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal this 22nd day of
October, 2003.
/a/ Belinda Loza
Notary Public
[notary seal]
STATE OF ILLINOIS )
)SS
COUNTY OF CLARK )
I Belinda Loza, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY, that Lorin M
Cortina, personally known to me to be the Executive Vice
President of APPLE OHIO LLC, a Delaware limited liability
company ("Company"), and personally known to me to be the
same person whose name is subscribed to the foregoing
instrument as such Executive Vice President, appeared before
me this day in person and acknowledged that he signed and
delivered the said instrument as his own free and voluntary
act, and as the free and voluntary act and deed of said
Company, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal this 22nd day of
October, 2003.
/a/ Belinda Loza
Notary Public
[notary seal]
EXHIBIT A LEGAL DESCRIPTION
SITUATED IN THE CITY OF MACEDONIA, COUNTY OF SUMMIT AND
STATE OF OHIO AND KNOWN AS BEING A PART OF "BLOCK G" IN W &
M PROPERTIES MACEDONIA COMMONS SUBDIVISION AS SHOWN ON THE
PLA T RECORDED IN PLAT CABINET I, SLIDES 475 THROUGH 478,
INCLUSIVE, OF THE SUMMIT COUNTY RECORDS, ALSO KNOWN AS BEING
A PART OF ORIGINAL NORTHFIELD TOWNSHIP LOT NO.26, FURTHER
BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF AKRON-
CLEVELAND ROAD (S.R. 8) WITH THE CENTERLINE OF MACEDONIA
COMMONS BOULEVARD, 80.00 FEET WIDE AND VARIABLE, AS SHOWN ON
SAID PLAT OF MACEDONIA COMMONS SUBDIVISION; THENCE
NORTHEASTERLY ALONG SAID CENTERLINE OF MACEDONIA COMMONS
BOULEVARD, SAID LINE BEING THE ARC OF A CURVE DEFLECTING TO
THE LEFT, SAID CURVE HAVING A RADIUS OF 452.50 FEET AND A
CHORD OF 363.15 FEET, WHICH CHORD BEARS N 47 DEG. 13' 12" E,
373.68 FEET TO A POINT OF TANGENCY N 23 DEG. 33' 45" E,
CONTINUING ALONG SAID CENTERLINE OF MACEDONIA COMMONS
BOULEVARD, 426.67 FEET TO A POINT THEREIN; THENCE S. 66 DEG.
26' 15" E, 37.87 FEET TO A POINT IN THE SOUTHEASTERLY LINE
OF SAID MACEDONIA. COMMONS BOULEVARD, WHICH LINE ALSO BEING
NORTHWESTERLY LIMITED ACCESS LINE OF INTERSTATE ROUTE 271;
THENCE N. 22 DEG. 21' 20" E ALONG SAID SOUTHEASTERLY LINE OF
MACEDONIA COMMONS BOULEVARD AND NORTHWESTERLY LIMITED ACCESS
LINE OF INTERSTATE ROUTE 271, 59.67 FEET TO A POINT THEREIN,
SAID POINT BEING THE MOST SOUTHERLY CORNER OF THE
AFOREMENTIONED "BLOCK G", SAID POINT ALSO BEING THE
PRINCIPAL PLACE OF BEGINNING.
COURSE NO.1: THENCE NORTHWESTERLY , CONTINUING ALONG THE NOW
NORTHEASTERLY LINE OF MACEDONIA COMMONS BOULEVARD, SAID LINE
BEING THE ARC OF A CURVE DEFLECTING TO THE LEFT, SAID CURVE
HAVING A RADIUS OF 527.62 FEET AND A CHQRD OF 380.55 FEET,
WHICH CHORD BEARS N 04 DEG. 04' 07" W , 389.32 FEET TO A
POINT OF TANGENCY;
COURSE NO.2: THENCE N 25 DEG. 12' 26" W , CONTINUING ALONG
SAID NORTHEASTERLY LINE OF MACEDONIA COMMONS BOULEVARD,
113.98 FEET TO A POINT OF CURVATURE;
COURSE NO.3: THENCE NORTHWESTERLY, CONTINUING ALONG SAID
NORTHEASTERLY LINE OF MACEDONIA COMMONS BOULEVARD, SAID LINE
BEING THE ARC OF A CURVE DEFLECTING TO THE RIGHT, SAID CURVE
HAVING A RADIUS OF 437.46 FEET AND A CHORD OF 145.17 FEET,
WHICH CHORD BEARS N. 15 DEG. 39' 22" W 145.85 FEET TO A
POINT THEREIN;
COURSE NO.4: THENCE S 85 DEG. 41' 01" E, 358:.39 FEET TO A
POINT IN THE AFOREMENTIONED NORTHWESTERLY LIMITED ACCESS
LINE OF INTERSTATE ROUTE 271;
COURSE NO.5: THENCE S. 21 DEG. 56' 04" W, ALONG SAID
NORTHWESTERLY LIMITED ACCESS LINE OF INTERSTATE ROUTE 271,
285.27 FEET TO AN ANGLE POINT THEREIN;
COURSE NO.6: THENCE S 22 DEG. 211 20" W, CONTINUING ALONG
SAID NORTHWESTERLY LIMITED ACCESS LINE OF INTERSTATE ROUTE
271,357.79 FEET TO THE PRINCIPAL PLACE OF BEGINNING AND
CONTAINING 2.0565 ACRES, BE THE SAME MORE OR LESS, BUT
SUBJECT TO ALL LEGAL HIGHWAYS AND EASEMENT OF RECORD AND
BEING ACCORDING TO A SURVEY DATED JUNE 22, 1994 MADE BY
LESLIE P. KENT, PROFESSIONAL SURVEYOR NO. 6627 OF SEYMOUR D.
WEISS & ASSOCIATES, INC., CONSULTING ENGINEERS & SURVEYORS.
PARCEL 2
TOGETHER WITH A NON-EXCLUSIVE PERPETUAL EASEMENT FOR
DRAINAGE FACILITIES AND ACCESS AS CONTAINED IN AN EASEMENT
AGREEMENT BY AND BETWEEN APPLE AMERICAN LIMITED PARTNERSHIP
OF OHIO AND W & M PROPERTIES DATED AUGUST 3, 1994 AND
RECORDED ON AUGUST 5, 1994 IN VOLUME 1732 PAGE 837 IN THE
OFFICE OF THE RECORDER OF SUMMIT COUNTY, OHIO.
PARCEL NO. 33-10568 (PPN NF-00029-01-017)
Commonly known as: 7159 Macedonia Commons Blvd., Macedonia,
OH 44056