ASSIGNMENT AND ASSUMPTION OF LEASE AND GUARANTY
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AND GUARANTY
("Assignment") effective as of this 29th day of December, 2006 by
and between AEI FUND MANAGEMENT XVII, INC., a Minnesota
corporation, ("Assignor") and AEI INCOME & GROWTH FUND XXII
LIMITED PARTNERSHIP, a Minnesota limited partnership and AEI
INCOME & GROWTH FUND 26 LLC, a Delaware limited liability
company, as tenants in common (together, collectively
"Assignee").
RECITALS
WHEREAS, Assignor is the owner of certain real property
located at 1516 South Washington Street, City of Crawfordsville,
Montgomery County, Indiana as more particularly described on
EXHIBIT A attached hereto and incorporated herein by this
reference (the "Property")).
WHEREAS, Assignor has leased the Property to Apple Indiana
II LLC, a Delaware limited liability company ("Apple Indiana"),
pursuant to that certain Lease Agreement dated September 21, 2006
(the "Lease"); and
WHEREAS, Apple American Group LLC., a Delaware limited
liability company ("Guarantor") has executed a Guaranty of Lease
dated September 21, 2006 (the "Guaranty"); and
WHEREAS, in connection with Assignor's conveyance of its fee
simple interest in the Property to Assignee, as tenants in
common, Assignor desires to assign its right, title and interest
in and to the Lease and the Guaranty to AEI Income & Growth Fund
XXII Limited Partnership, an undivided sixty percent (60.0%)
interest as a tenant in common; and AEI Income & Growth Fund 26
LLC, an undivided forty percent (40.0%) interest as a tenant in
common, and Assignee desires to assume Assignor's right, title
and interest in and to the Lease and the Guaranty;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Assignor
and Assignee agree as follows:
1. ASSIGNMENT. Assignor hereby gives, grants, bargains,
sells, conveys, transfers and sets over unto Assignee, its
successors and assigns, as of the date first above written (the
"Effective Date"), all of Assignor's right, title and interest in
and to the Lease and the Guaranty.
2. ACCEPTANCE OF ASSIGNMENT AND ASSUMPTION. Assignee
hereby accepts the foregoing assignment, and hereby assumes and
agrees to be bound by and perform all of Assignor's obligations
and liabilities to be performed and/or occurring under the Lease
or the Guaranty on or after the Effective Date, including,
without limitation, the obligations for return of security
deposits as provided in the Lease or the Guaranty and/or required
by law, and any and all obligations for any and all leasing
commissions, brokerage fees and similar payments which become due
and payable after the Effective Date, including, without
limitation, any and all leasing commissions, brokerage fees and
similar payments which become due and payable in connection with
the exercise of any option or right under the Lease.
3. INDEMNIFICATION. (a) Assignor hereby indemnifies
Assignee, and agrees to defend and hold harmless Assignee from
and against any and all liability, loss, damage and expense,
including without limitation reasonable attorneys' fees, which
Assignee may or shall incur under the Lease or the Guaranty by
reason of any failure or alleged failure of Assignor to have
complied with or to have performed, before the Effective Date,
the obligations of the landlord thereunder which were to be
performed before the Effective Date.
(b) Assignee hereby indemnifies Assignor, and agrees
to defend and hold harmless Assignor from and against any and all
liability, loss, damage and expense, including without limitation
reasonable attorneys' fees, which Assignor may or shall incur
under the Lease or the Guaranty by reason of any failure or
alleged failure of Assignee to comply with or perform, on or
after the Effective Date, all the obligations of the landlord
thereunder which are to be performed on or after the Effective
Date.
4. SUCCESSORS AND ASSIGNS. The terms and conditions of
this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns.
5. RETAINED RIGHTS. Assignee hereby agrees that Assignor
may, at Assignor's election and expense, proceed at law or equity
to collect any delinquent rents accruing under the Lease prior to
the Effective Date. Assignor hereby agrees that Assignee shall
have no obligation to collect any rent due prior to the Effective
Date under the Lease; provided, however, that in the event
Assignee is paid rent from a tenant that has delinquent rent
accruing prior to the Effective Date, and such payment is in
excess of current rent due and payable under the Lease and any
collection costs incurred by Assignee to collect such rents, then
Assignee agrees to pay such excess amount to Assignor as soon as
reasonably practicable after the date of receipt by Assignee.
6. MISCELLANEOUS. This Assignment shall be governed and
construed in accordance with the laws of the State of Indiana.
This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date and year first above written.
"ASSIGNOR" AEI FUND MANAGEMENT XVII, INC.
a Minnesota corporation
By: /s/ Robert P Johnson
Name: Robert P Johnson
Title: President
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing was acknowledged before me this 29th day of
December, 2006, by Robert P. Johnson, in his capacity as the
President of AEI Fund Management XVII, Inc., a Minnesota
corporation, who acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of said corporation
by authority of its board of directors on behalf of the company.
[Seal] /s/ Jennifer L Dingmann
Print Name: Jennifer L Dingmann
My Commission Expires: 1/31/2010
"ASSIGNEE" AEI INCOME & GROWTH FUND XXII
LIMITED PARNTERSHIP,
a Minnesota limited partnership
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation, its
Corporate General Partner
By: /s/ Robert P Johnson
Name: Robert P Johnson
Title: President
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing was acknowledged before me this 29th day of
December, 2006, by Robert P. Johnson, in his capacity as the
President of AEI Fund Management XXI, Inc., a Minnesota
corporation, the corporate General Partner of AEI Income & Growth
Fund XXII Limited Partnership, a Minnesota limited partnership
("Partnership"), who acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of said corporation
by authority of its board of directors on behalf of the
Partnership.
[Seal] /s/ Jennifer L Dingmann
Print Name: Jennifer L Dingmann
My Commission Expires: 1/31/2010
AEI INCOME & GROWTH FUND 26 LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation, its
Managing Member
By: /s/ Robert P Johnson
Name: Robert P Johnson
Title: President
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing was acknowledged before me this 29th day of
December, 2006, by Robert P. Johnson, in his capacity as the
President of AEI Fund Management XXI, Inc., a Minnesota
corporation, the Managing Member of AEI Income & Growth Fund 26
LLC, a Delaware limited liability company, ("Company") who
acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of said corporation by authority of its
board of directors on behalf of the Company.
[Seal] /s/ Jennifer L Dingmann
Print Name: Jennifer L Dingmann
My Commission Expires: 1/31/2010
EXHIBIT A
(Legal Description)
PARCEL 1:
Part of the Northwest Quarter of Section 8, Township 18 North,
Range 4 West, in Montgomery County, Indiana, more particularly
described as follows:
Commencing at the Northwest corner of said Northwest Quarter
Section; thence along the West line thereof, South 00 degrees 26
minutes 24 seconds East (assumed bearing) 1179.37 feet; thence
North 89 degrees 33 minutes 36 seconds East to the Easterly right-
of-way of U.S. 231 46.19 feet to the POINT OF BEGINNING of this
description; thence North 00 degrees 17 minutes 20 seconds West
on and along said Easterly right-of-way 41.38 feet to the point
of curvature of a tangent curve to the right, from which the
radius point of said curve bears North 89 degrees 42 minutes 40
seconds East 914.93 feet; thence on and along said right-of-way
Northerly along said curve an arc distance of 252.49 feet to a
point on said curve, said point being North 74 degrees 28 minutes
36 seconds West 914.93 feet from said radius point; thence
leaving said right-of-way line South 75 degrees 33 minutes 28
seconds East 79.71 feet; thence North 14 degrees 26 minutes 32
seconds East 62.16 feet; thence South 82 degrees 33 minutes 30
seconds East 16.10 feet; thence South 72 degrees 33 minutes 30
seconds East 58.14 feet; thence South 83 degrees 26 minutes 31
seconds East 49.09 feet; thence South 08 degrees 59 minutes 15
seconds East 91.19 feet to the point of curvature of a tangent
curve to the right, from which the radius point of said curve
bears South 81 degrees 00 minutes 45 seconds West 515.50 feet;
thence Southerly along said curve on an arc distance of 36.11
feet to a point on said curve, said point being North 85 degrees
01 minutes 34 seconds East 515.50 feet from said radius point, to
the point of curvature of a reverse curve to the left, from which
the radius point of said curve bears North 85 degrees 01 minutes
34 seconds East 19.50 feet; thence Southerly, Southeasterly, and
Easterly along said curve an arc distance of 28.94 feet to a
point on said curve, said point being South 00 degrees 00 minutes
00 seconds East 19.50 feet from said radius point; thence North
90 degrees 00 minutes 00 seconds East 77.54 feet; thence South 29
degrees 32 minutes 35 seconds West 184.24 feet; thence South 89
degrees 34 minutes 00 seconds West 270.81 feet to the POINT OF
BEGINNING of this description, containing 1.931 acres, more or
less.
LESS AND EXCEPT the real property conveyed by Apple American
Limited Partnership of Indiana, an Indiana limited partnership,
to the State of Indiana by Warranty Deed recorded on June 15,
2000 in Deed Record 307, page 49 in the Office of the Recorder of
Montgomery County, Indiana.
PARCEL 2:
Non-exclusive easement as set out in that certain Declaration of
Easements and Restrictions recorded July 9, 1996, in Deed Record
294, page 371, in the Office of the Recorder of Montgomery
County, Indiana.
TAX KEY #: 023-25032-00
PROPERTY ADDRESS: 1516 South Washington Street
Crawfordsville, IN 47933
LEASE
BETWEEN
AEI FUND MANAGEMENT XVII, INC
as Landlord,
and APPLE INDIANA II LLC
as Tenant
Dated as of September 21, 2006
(Crawfordsville, Indiana)
TABLE OF CONTENTS
Page
1. BASIC PROVISIONS 1
2. LEASING AGREEMENT; TERM 1
3. RENT 3
4. TAXES 5
5. ENVIRONMENTAL MATTERS 6
6. COMPLIANCE WITH REQUIREMENTS 8
7. COVENANT AGAINST LIENS 9
8. USE AND ENJOYMENT 9
9. TENANT'S PROPERTY; LIEN WAIVER 12
10. ALTERATIONS; MAINTENANCE AND REPAIR 13
11. CONDEMNATION AND CASUALTY DAMAGE 14
12. INSURANCE 17
13. ASSIGNMENT AND SUBLETTING 19
14. INDEMNIFICATION 21
15. DEFAULT; REMEDIES 23
16. SURRENDER OF PREMISES 27
17. SUBORDINATION AND ATTORNMENT 28
18. ESTOPPEL CERTIFICATES 29
19. NOTICES 30
20. LEASEHOLD FINANCING 30
21. RIGHT OF FIRST REFUSAL 31
22. [INTENTIONALLY OMITTED] 32
23. GUARANTY 32
24. MISCELLANEOUS 33
LEASE
THIS LEASE ("LEASE") dated September 21, 2006 ("EFFECTIVE
DATE"), is made and entered into by and between AEI FUND
MANAGEMENT XVII, INC., a Minnesota corporation ("LANDLORD"), and
APPLE INDIANA II LLC, a Delaware limited liability company
("TENANT").
1. BASIC PROVISIONS
1.1. Premises Address: 1516 S. Washington Street
Crawfordsville, IN 47933
1.2. Landlord Name and Address: AEI Fund Management XVII, Inc.
1300 Wells Fargo Place
30 Seventh Street East
St. Paul, Minnesota 55101
1.3. Tenant Name and Address: Apple Indiana II LLC
6200 Oak Tree Boulevard, Suite
250
Independence, OH 44131
Attn: Chief Financial Officer
1.4. Lease Date: September 21, 2006
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 1.4 acres 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 1516 South
Washington Street, Crawfordsville, ("CITY"), Montgomery County,
Indiana. 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 Effective Date 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 mean 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 terminate 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 HAVE 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 OTHERWISE.
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, 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 $223,222.00 $18,601.83
6-10 $239,963.65 $19,996.97
11-15 $257,960.92 $21,496.74
16-20 $277,307.99 $23,109.00
21-25* $298,106.09 $24,842.17
26-30** $320,464.05 $26,705.34
31-35*** $344,498.85 $28,708.24
36-40**** $370,336.27 $30,861.36
[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 (as
hereinafter 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 be 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 not
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 (a)
criminal liability, penalty or sanction, (b) any civil liability,
penalty or sanction for which Tenant has not made provisions
reasonably acceptable to Landlord, or (c) 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. 5101, 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 specifically including, but not limited to, any
condition existing on the Commencement Date, 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") (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 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 14.1 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 Environmental
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 REQUIREMENTS
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, including without limitation, ancillary
carry-out food service and the sale of beer, wine and other
alcoholic beverages, 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 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, EASEMENTS. 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, modify or
grant such easements, covenants, waivers, approvals or
restrictions for utilities, parking or other matters as Tenant
may desire for the operation of the Premises (including, without
limitation, consenting to site and common area changes affecting
access, parking, tenant mix and the like and approving uses or
users of the other properties in the vicinity of the Premises
which Tenant reasonably believes will have a positive impact on
its business at 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 or, in Tenant's reasonable judgment, will have a
positive impact on its business at 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.
If Tenant shall submit a request to Landlord for Landlord's
cooperation in connection with any such Easement or Dedication
which requires Landlord's approval or execution of any document,
Landlord shall (x) approve such Easement or Dedication, and
execute and deliver to Tenant all documents required in
connection therewith, within ten (10) days of receiving Tenant's
request for approval, or (y) disapprove Tenant's request in a
written notice with a detailed explanation of its objections
delivered to Tenant within ten (10) days of receiving Tenant's
request for approval. If Landlord fails to respond within such
ten (10) day period, Tenant's request with respect to such
Easement or Dedication shall be deemed to be approved by Landlord
hereunder and Tenant is hereby authorized and empowered to
execute and deliver on behalf of Landlord, as Landlord's attorney-
in-fact, all instruments and documents required in connection
therewith.
If Landlord timely disapproves of a Tenant request under
this Section 8.5, then Tenant may elect, by delivering written
notice to Landlord, to resolve the matter by expedited
arbitration in accordance with this paragraph. Landlord and
Tenant shall mutually select a single arbitrator within ten (10)
days after delivery of Tenant's notice of arbitration hereunder.
If the parties cannot agree upon an arbitrator within such
period, then either party may request that a qualified arbitrator
be appointed by the office of the American Arbitration
Association located nearest to the Premises. Following selection
or appointment, the arbitrator shall meet jointly with
representatives of Landlord and Tenant within twenty (20) days to
consider the parties' positions on the disputed issue and the
arbitrator shall render a written decision within two (2)
business days following such meeting. The decision of the
arbitrator shall be final, binding on the parties and
nonappealable. The arbitration shall otherwise be conducted in
accordance with the American Arbitration Association's rules for
expedited dispute resolution in effect at the time. The non-
prevailing party in any such arbitration shall pay the
arbitrator's fee and expenses.
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) fixtures,
furniture, furnishings, equipment (other than floor and wall
coverings, fixtures which are "built-ins" or constitute an
integral part of the Building, the walk-in cooler, heat, air
conditioning and ventilation systems, electrical, mechanical and
plumbing 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) fixtures, furniture, 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 PERSONALTY"). 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 of 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 consists of the demolition of the Building and
reconstruction of a new prototypical building so long as: (A)
the new building is constructed in compliance with applicable
codes and Permitted Exceptions, (B) Tenant continues to pay Rent,
(C) construction is completed within nine (9) months following
demolition of the Building, subject to extension for force
majeure events, (D) Landlord has approved in advance the
construction budget (which shall include a contingency) for the
new building, such approval not to be unreasonably withheld,
delayed or conditioned, and (E) either (y) in the case where the
Guaranty is in full force and effect prior to demolition Tenant
has provided Landlord with a commercially reasonable completion
bond for the project or such other assurance of performance as
Landlord may reasonably accept, or (z) prior to demolition the
Tenant deposits with Landlord cash (the "Deposit") sufficient to
construct the building and improvement pursuant to the approved
budget, with the Deposit being disbursed pursuant to the
Landlord's then current construction disbursement procedures;
(ii) 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 (iii) in the case of
any Alteration other than those permitted under clause (ii)
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 (7) 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 10.1(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 Sections 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 One Hundred Twenty-five Thousand Dollars ($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 ten percent (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 proceeds 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 Section 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 and Tenant shall continue to pay Rent. 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 One Hundred Twenty-five
Thousand Dollars ($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 or
Franchisor's affiliate; (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 that acquires, by merger,
consolidation or otherwise, all or substantially all of the
ownership interests in and control of, Tenant or AAG (provided
that no Event of Default shall have occurred and be continuing)
or of Franchisor; or (v) to any entity 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, 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 ownership interests in and
control of, such assigning Tenant pursuant to subsection (iv) of
Section 13.2 above other than with respect to Franchisor or
Franchisor's affiliate, 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); provided, however,
that if the assigning Tenant is Franchisor, a Franchisor
affiliate or an authorized franchisee of Franchisor (other than
the originally named Tenant hereunder), no such cost, fee or
payment shall be due or payable by such entity.
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 clause (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 clause
(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 new 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 reletting (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 15.1 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 rights 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 pay or 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 Landlord 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, together with such changes as Lender may
reasonably require; 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 TE 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 (1) 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: Winthrop & Weinstine P.A.
225 South Sixth Street
Suite 350
Minneapolis, Minnesota 55402
Attention: Jeffrey L. Leclerc
And a copy to: AEI Fund Management, Inc.
1300 Wells Fargo Place
30 Seventh Street East
St. Paul, MN 55101
Attention: Lease Management Department
TO TENANT At the address set forth in Section
1.3,
Attention: Chief Financial Officer
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 not 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 from a third party which is not
affiliated with Landlord, which offer Landlord 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 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 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 sale (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.
22. [INTENTIONALLY OMITTED]
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 provisions 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 it
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 are 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 and
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 AND FRANCHISOR 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. Landlord and Tenant
(i) acknowledge that Franchisor, its personnel and agents have
the right to enter upon the Premises for certain purposes under
the Franchise Agreement, and (ii) agree not to interfere with or
prevent such entry by Franchisor, its personnel and agents.
24.19. DUE AUTHORITY.
(a) Landlord represents and warrants to Tenant as follows: (i)
that Landlord is a corporation created, validly existing and in
good standing under Minnesota 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. 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 not 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, all of
which shall be reasonably true and correct:
(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.
24.29. MULTIPLE PERSONS OR ENTITIES. In the event that either
party shall consist of more than one person or entity, (i) the
obligations of such multiple persons or entities shall be joint
and several, and (ii) the first notice with respect to a
particular matter received by the other party from any one of the
multiple persons or entities shall be final and binding on both
parties, unless the party with multiple persons or entities
previously has designated one among them as the representative of
all, in which event only a notice from such representative shall
be final and binding on both parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Lease as of the day and year first above written.
LANDLORD: AEI FUND MANAGEMENT XVII, INC.,
a Minnesota corporation
By: /s/ Robert P Johnson
Robert P. Johnson
President
TENANT: APPLE INDIANA II LLC,
a Delaware limited liability
company
By: /s/ Lorin M Cortina
Lorin M. Cortina
Executive Vice President
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
I, Jennifer L Schriner, 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 XVII, INC., a Minnesota corporation ("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
she/he signed and delivered the said instrument as her/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 19th day of
September, 2006.
/s/ Jennifer L Schriner
Notary Public
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
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 INDIANA II 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 21st day of
September, 2006.
[SEAL] /s/ Belinda Loza
Notary Public
EXHIBIT A
Land Legal Description
PARCEL 1:
Part of the Northwest Quarter of Section 8, Township 18 North,
Range 4 West, in Montgomery County, Indiana, more particularly
described as follows:
Commencing at the Northwest corner of said Northwest Quarter
Section; thence along the West line thereof, South 00 degrees 26
minutes 24 seconds East (assumed bearing) 1179.37 feet; thence
North 89 degrees 33 minutes 36 seconds East to the Easterly right-
of-way of U.S. 231 46.19 feet to the POINT OF BEGINNING of this
description; thence North 00 degrees 17 minutes 20 seconds West
on and along said Easterly right-of-way 41.38 feet to the point
of curvature of a tangent curve to the right, from which the
radius point of said curve bears North 89 degrees 42 minutes 40
seconds East 914.93 feet; thence on and along said right-of-way
Northerly along said curve an arc distance of 252.49 feet to a
point on said curve, said point being North 74 degrees 28 minutes
36 seconds West 914.93 feet from said radius point; thence
leaving said right-of-way line South 75 degrees 33 minutes 28
seconds East 79.71 feet; thence North 14 degrees 26 minutes 32
seconds East 62.16 feet; thence South 82 degrees 33 minutes 30
seconds East 16.10 feet; thence South 72 degrees 33 minutes 30
seconds East 58.14 feet; thence South 83 degrees 26 minutes 31
seconds East 49.09 feet; thence South 08 degrees 59 minutes 15
seconds East 91.19 feet to the point of curvature of a tangent
curve to the right, from which the radius point of said curve
bears South 81 degrees 00 minutes 45 seconds West 515.50 feet;
thence Southerly along said curve on an arc distance of 36.11
feet to a point on said curve, said point being North 85 degrees
01 minutes 34 seconds East 515.50 feet from said radius point, to
the point of curvature of a reverse curve to the left, from which
the radius point of said curve bears North 85 degrees 01 minutes
34 seconds East 19.50 feet; thence Southerly, Southeasterly, and
Easterly along said curve an arc distance of 28.94 feet to a
point on said curve, said point being South 00 degrees 00 minutes
00 seconds East 19.50 feet from said radius point; thence North
90 degrees 00 minutes 00 seconds East 77.54 feet; thence South 29
degrees 32 minutes 35 seconds West 184.24 feet; thence South 89
degrees 34 minutes 00 seconds West 270.81 feet to the POINT OF
BEGINNING of this description, containing 1.931 acres, more or
less.
LESS AND EXCEPT the real property conveyed by Apple American
Limited Partnership of Indiana, an Indiana limited partnership,
to the State of Indiana by Warranty Deed recorded on June 15,
2000 in Deed Record 307, page 49 in the Office of the Recorder of
Montgomery County, Indiana.
PARCEL 2:
Non-exclusive easement as set out in that certain Declaration of
Easements and Restrictions recorded July 9, 1996, in Deed Record
294, page 371, in the Office of the Recorder of Montgomery
County, Indiana.
TAX KEY #: 023-25032-00
PROPERTY ADDRESS: 1516 South Washington Street
Crawfordsville, IN 47933