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EXHIBIT 10.9
AGREEMENT BETWEEN LANDLORD AND LENDER
THIS AGREEMENT BETWEEN LANDLORD AND LENDER (this "Agreement") is
executed as of this 24th day of August, 1999, by Denver Pavilions, L.P., having
its principal place of business at 500 16th Street, Denver, CO 80202, being the
fee owner and landlord (the "Landlord") of certain premises described on Exhibit
A (the "Premises"), which are now occupied, in whole or in part by Cafe Odyssey,
Inc., a Minnesota corporation, having its principal place of business at 4801
West 81st Street, Suite 112, Bloomington, Minnesota 55437 (the "Lessee"), with
regard to the following:
RECITALS:
First, the Lessee has requested FAIRVIEW PARTNERS, an Ohio general
partnership ("Lender") having an address at 5807 McCray Court, Cincinnati, Ohio
45224, to make a loan or loans to the Lessee (the "Loan") pursuant to the terms
of the Loan Agreement dated August 24, 1999, (the "Loan Agreement") in the
maximum aggregate principal amount not to exceed Two Million Dollars
($2,000,000) and other security or supporting documentation executed in
conjunction therewith (all such documents, as the same may be hereafter amended,
modified, supplemented or restated, are collectively referred to herein as the
"Loan Documents");
Second, the Lender is willing to extend the Loan only upon the security
of the various Loan Documents and as further security, this Agreement for the
purpose of specifying the Lender's rights with regard to the Premises; and
Third, the Lessee has entered into that certain Lease of the Premises
with the Landlord dated May 12, 1998, for a fifteen (15) year term which will
terminate on March 15, 2014 (the "Lease");
NOW THEREFORE, in consideration of the foregoing, the reliance of the
Lender in extending the Loan, the mutual covenants and agreements hereinafter
contained and for other valuable consideration as evidenced by the Loan
Agreement and other Loan Documents, the sufficiency of which is hereby
acknowledged, the undersigned parties, intending to be legally bound, first
incorporate the foregoing Recitals and the definitions contained within them and
the heading of this Agreement into the body hereof and otherwise agree as
follows:
1. The Lease is in full force and effect and constitutes the entire
agreement between the Landlord and Lessee regarding the Premises.
2. All rents reserved in the Lease have been paid to the extent they
are payable on or before the date hereof.
3. To the best of Landlord's knowledge, there is no existing default
under the provisions of the Lease or in the performance of any of the terms,
covenants, conditions or warranties thereof on the part of the Landlord or the
Lessee thereunder to be observed or performed.
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4. Landlord waives each and every right which Landlord now has, or may
hereafter have, under the laws of the State of Minnesota, or by virtue of the
Lease, any substitute lease or rental agreement with Lessee now or hereafter in
effect, to levy or distrain upon for payment in arrears, in advance or both, or
to claim or assert title to or a lien upon, all equipment, trade fixtures,
furniture and moveable personal property owned by the Lessee including, without
limitation, counters, restaurant kitchen equipment, shelving, showcases, mirrors
and other movable personal property (excluding however, mechanical, plumbing and
electrical systems, light fixtures, floor and wall coverings and immovable
partitions) and all additions, attachments and replacements thereof (the
"Equipment") which Equipment is now on the Premises, or may hereafter be
delivered or installed thereon, and is or may hereafter become subject to any
lien, mortgage, or security interest in favor of Lender pursuant to the Loan
Documents.
5. Landlord agrees that the Equipment shall remain personal property
notwithstanding the manner or mode of its attachment to the Premises, if any,
and shall not become fixtures.
6. Landlord recognizes and acknowledges that any claim or claims that
Lender has or may hereafter have against the Equipment by virtue of any Loan
Document is superior to any lien or claim of any nature which Landlord now has
or may hereafter have to the Equipment pursuant to the Lease, by statute,
agreement or otherwise.
7. In the event of default by Lessee in the payment of any indebtedness
to the Lender, or in the performance of any of the terms and conditions of any
Loan Document or any extension or renewals thereof, Lender may remove the
Equipment, or any part thereof, from the Premises in accordance with the terms
and conditions of the Loan Documents. Landlord consents to the entry upon the
Premises for the purpose of taking possession or removal of the Equipment upon
three (3) business days prior written notice. Landlord waives opportunity for
hearing in conjunction with any taking of possession or removal of the Equipment
by Lender. Any damage caused by removal shall be repaired by Lender at its sole
cost and expense. Landlord will make no claim whatsoever to the Equipment. In
the event of any such default by Lessee, Landlord agrees that, at Lender's
option, the Equipment may remain upon the Premises for a period of one (1) month
after the receipt by Lender of written notice from Landlord directing removal,
without incurring storage charges therefor.
8. Landlord will give to Lender simultaneously with service on Lessee a
duplicate of any and all notices or demands which are required by the L&we to be
given by Landlord to Lessee All such notices and demands shall be in writing,
either delivered in hand or sent by first class mail, postage prepaid or sent by
facsimile transmission addressed as follows:
Fairview Partners
5807 McCray Court
Cincinnati, Ohio 45224
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With a required copy to:
Keating, Muething & Klekamp, P.L.L.
1400 Provident Tower
One East Fourth Street
Cincinnati, Ohio 45202
Attention: Paul V. Muething
9. Upon a default under the Lease, Lender shall have the right and
privilege of performing on behalf of Lessee any of Lessee's covenants or of
curing any defaults by Lessee or of exercising any election, option or privilege
conferred upon Lessee by the terms of the Lease and Lessee shall be bound
thereby.
10. Landlord shall not terminate the Lease or Lessee's right of
possession for any default of Lessee if, (i) with respect to a monetary default,
within a period of ten (10) days after the expiration of the period of time (if
any) within which Lessee is expressly allowed in the Lease to cure such default,
and (ii) with respect to a nonmentary default within a period of thirty (30)
days after the expiration of the period of time (if any) within which Lessee is
expressly allowed in the Lease to cure such default, Landlord has provided
notice of such default to Lender and such default is cured or caused to be cured
by Lender or, (iii) if such nonrnonetary default is not reasonably susceptible
to being cured within such thirty (30) day period within a period of sixty (60)
days after the expiration of the period of time (if any) within which Lessee is
expressly allowed in the Lease to commence to eliminate the cause of such
default, Landlord has provided notice of such default to Lender and Lender
diligently commences to cure such default within the initial thirty (30) day
period, and continues to eliminate the cause of such default within the sixty
(60) day period on behalf of Lessee; provided, however, that there shall be no
obligation on the part of Lender to cure any default. Notwithstanding the
foregoing, nothing contained in this Agreement shall prevent or otherwise delay
the exercise of any rights of the Landlord under the Lease to ameliorate or
otherwise cure the existence of any safety, health, hazardous or other emergency
related situation or condition on the Premises in accordance with the terms
currently set forth in the Lease.
11. The Lender may, at any time, and from time to time, without the
consent of Landlord, without giving notice thereof to Landlord and without
affecting or impairing the validity or effectiveness of this instrument, (i)
extend additional credit or lend additional funds to the Lessee or any of them,
(ii) modify or amend the terms of payment of any indebtedness of Tenant (or any
of them) to the Lender, or (iii) amend or modify any of the terms, conditions,
covenants and agreements set forth in the Loan Agreement or in any security
agreement, mortgage or other loan document executed in connection therewith;
provided, however, that nothing contained in the Loan Documents or in this
Agreement shall be construed to create a security interest in favor of the
Lender in and to the Lease and the leasehold rights of the Lessee thereunder or
be deemed to constitute a consent of the Landlord to any such security interest.
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12. Landlord shall have no obligation or duty to determine whether or
not the Lessee has defaulted in its obligations to the Lender, and Landlord
shall be entitled to rely, fully and without recourse by Lessee, on receipt of
written notice from Lender that the Lessee has defaulted.
13. This Agreement shall be binding upon the Landlord, the heirs,
executors, personal representatives, successors and assigns of the Landlord, and
all transferees of the Premises and shall inure to the benefit of Agent and the
Lenders, and their respective successors and assigns.
14. This Agreement may be executed in any number of counterparts and by
different parties thereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date first set forth above.
Landlord: DENVER PAVILIONS, L.P.
By: s/ William E. Denton
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Print Name: William E. Denton, Man.
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Title: for Denhill Denaw, General Partner
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Signed and acknowledged in
the presence of:
Print name: Rebecca A. Struckhoff
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Print name: Robert J. Murray
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Lessee: Cafe Odyssey, Inc., a Minnesota corporation
By: s/ Stephen D. King
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Print Name: Stephen D. King
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Title: C.E.O.
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Signed and acknowledged in
the presence of:
Print name: Gail T. King
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Print name: Roberta J. Hines
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AGREED AND ACCEPTED:
Lender: FAIRVIEW PARTNERS, an Ohio general
partnership
By: s/ T.E. Johnson
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Print Name: Timothy E. Johnson
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Title: Agent
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Signed and acknowledged in
the presence of:
Print name: Noel A. Thesing
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Print name: Carol J. Stemler
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State of Ohio )
)ss.
County of Hamilton )
On this 25th day of August, 1999, before me, a Notary Public in and for
said State, personally appeared Timothy E. Johnson, to me personally known, who,
being by me duly sworn, did say that he is an agent of Fairview Partners, an
Ohio general partnership, and that said instrument was signed on behalf of said
partnership by authority of its partners, and he acknowledged said partnership
by authority of its partners, and he acknowledged said instrument to be the free
act and deed of said partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the day and year first above written, in the County and State aforesaid.
s/ Noel Ann Thesing
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My Commission Expires:
NOTARIAL SEAL NOEL ANN THESING
STATE OF OHIO Notary Public, State of Ohio
My Commission Expires April 15, 2001
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State of Ohio )
)ss.
County of Hamilton )
BEFORE ME, the Subscriber, a Notary Public in and for said County and
State, personally appeared Stephen D. King, Chief Executive Officer of Cafe
Odyssey, Inc., a Minnesota corporation, the corporation which executed the
foregoing instrument, who acknowledged he did sign said instrument as such
officer on behalf of said corporation, and by authority of its Board of
Directors, and that the execution of said instrument is his free and voluntary
act and deed individually and as such officer, and the free and voluntary act
and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my name and affixed my
Notarial Seal this 24th day of August, 1999.
s/ Gail King
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Notary Public
NOTARIAL SEAL GAIL TONYA KING, Attorney at Law
STATE OF OHIO Notary Public, State of Ohio
My Commission Has No Expiration Date
Section 147.03
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State of California )
)ss.
County of Ventura )
On this 24th day of August, 1999, before me, a Notary Public in and for
said State, personally appeared William E. Denton, proved by satisfactory
evidence, who, being by me duly sworn, did say that he is the General Partner of
Denver Pavilions, a Colorado limited partnership, and that said instrument was
signed on behalf of said partnership, and he acknowledged said instrument to be
the free act and deed of said partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the day and year first above written, in the County and State aforesaid.
s/ Rex J. Masterson
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My Commission Expires: 6-16-01
NOTARIAL SEAL REX J. MASTERSON
COMM. #1140352
Notary Public - California
VENTURA COUNTY
My Comm. Exp. June 16, 2001
Prepared by and
Upon recordation return to:
Gail T. King, Esq.
Keating, Muething & Klekamp, P.L.L.
1400 Provident Tower
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-6584
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