EXHIBIT 10.3
COMMERCIAL SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease") is made and effective as of the
5th day of November, 1998, by and between BASS PRO OUTDOOR WORLD, L.P., a
Missouri limited partnership ("Sublessor") and BUCK & BASS, L.P., a Missouri
limited partnership ("Sublessee"),
WITNESSETH:
The Sublessor hereby leases to the Sublessee and the Sublessee does hereby
take as Sublessee from the Sublessor a certain retail area for use as a bar and
restaurant (the "Restaurant") located on the ground level adjacent to the
Sublessor's Outdoor World location in Grapevine, Texas (the "Store"), which area
is described on Exhibit A attached hereto.
TOGETHER WITH rights of access to the property as herein described and any
easements benefiting the property and benefits in common with other users of
parking spaces (which retail area and benefits are called the "Subleased
Premises").
SUBJECT, HOWEVER, to building restrictions and zoning regulations affecting
the Subleased Premises, all covenants, restrictions, easements, rights of way
and agreements of record, rights to use all dedicated or existing roads and
parking areas in common with others, the Xxxxx Lease and all easements or rights
of use created in favor of any public utility.
AND FURTHER SUBJECT to the terms and conditions of that certain Retail
Lease by and between Grapevine Xxxxx Residual Limited Partnership, as Landlord,
and Bass Pro Outdoor World, L.P., as Tenant, dated September 22, 1997 (the
"Xxxxx Lease").
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. TERM. The term of this Sublease (the "Term") shall correspond with
the term of the Xxxxx Lease, provided, however, that in no event shall the Term
of this Sublease extend beyond the term of the Xxxxx Lease. The Term may be
shortened as provided in this Sublease, including as provided in Sections 15 and
16 hereof.
2. RENT. The Sublessee shall pay Sublessor a rent in an amount equal to
Five and one-half per cent (5-1/2%) of "Gross Sales" (as herein defined) made by
Sublessee from the Subleased Premises during each year of the term of this
Sublease less than Eleven Million Dollars ($11,000,000.00), and Six and one-half
per cent (6-1/2%) of Gross Sales made during each year of the term of this
Sublease in excess of Eleven Million Dollars ($11,000,000.00). In no event
shall the annual rent be less than Three Hundred Eighty-five Thousand Dollars
($385,000.00). The obligation to pay rent commences on the date that the Store
opens for business. Rent shall xxxxx during any time after Sublessor (or its
successors or assigns) ceases to be open for business for more than five (5)
consecutive days other than due to FORCE MAJEURE.
(a) GROSS SALES DEFINED. As used herein, the term "Gross Sales"
means the entire amount of the actual sales price of all sales of food,
beverages and merchandise conducted in or from the Restaurant, and sales by
any concessionaire or licensee in the Restaurant. "Gross Sales" shall not
include, however, any sums collected and paid out for any sales, excise or
gross receipts tax imposed upon the sale of any
food or beverages by any duly constituted governmental authority nor
shall it include the exchange of food or beverages between MBI
facilities, if any, where such exchange of food or beverages is made for
the convenient operation of MBI's business and not for the purpose of
consummating elsewhere a sale which has theretofore been made at, in or
from the Restaurant, or for the purpose of depriving the Partnership of
the benefit of a sale which otherwise would be made at, in or from the
Restaurant, nor the amount of returns to shippers or manufacturers, nor
the amount of any complimentary food, beverages or merchandise given out
at the Restaurant for promotional or other purposes, nor the amount of
any cash or credit refund made upon any sale where the merchandise sold,
or some part thereof, is thereafter returned by the purchaser and
accepted by the Partnership, nor receipts from public telephones, stamp
machines, public toilet locks or vending machines, nor sales of
furniture, equipment, property or bulk sales not in the ordinary course
of business, nor sales to employees, nor any credit card charges payable
by the Partnership.
(b) RENT DUE/ACCOUNTING. On or before the 10th day of each month,
Sublessee shall furnish to Sublessor a complete accounting of all Gross
Sales during the preceding calendar month along with sales tax reports and
such other evidence as Sublessor may request to verify Gross Sales and the
accuracy of the rent paid (the "Gross Sales Reports"). At any time upon
notice by Sublessor, Sublessee shall make available all books and records
pertaining to sales on or from the Subleased Premises for inspection and
audit by Sublessor or its representatives. At such time as the monthly
reports are made (and no later than the 10th day of each month), Sublessee
shall pay Sublessor the rent due Sublessor for the preceding month (i.e.,
the first month's rent and Gross Sales Report shall be due on or before the
10th day of the month immediately following the month in which the term
hereof begins). Sublessee shall be responsible for collecting sales tax
revenues generated with respect to Sublessee's business contemplated herein
and for reporting the same to the State of Texas. Sublessor and its
representatives shall have full and free access to all business records of
Sublessee (including the right to copy and take away any such records) at
all reasonable business hours for purposes of auditing and substantiating
the amount of Gross Sales. Sublessee shall keep, preserve and maintain all
records of Gross Sales for a period of forty-eight (48) months following
the month in which the Gross Sales were made. Each year within sixty (60)
days of the end of the fiscal year of Sublessee, Sublessee shall furnish,
at Sublessee's expense, a report by a public accounting firm acceptable to
Sublessor certifying to Sublessor the amount of Gross Sales during the
preceding fiscal year.
(c) In the event Sublessee understates the Gross Sales in any Gross
Sales Report by more than Two per cent (2%), then the Sublessor shall be
entitled to recover from Sublessee as liquidated damages an amount equal to
three (3) times the understatement. Sublessor may also recover (i) all
costs of audit related to any such understatement, and (ii) all reasonable
attorney fees and court costs incurred by Sublessor in investigating and
legally pursuing such understatement, including fees of expert witnesses.
3. PREPARATION OF SUBLEASED PREMISES.
(a) Sublessor shall deliver possession of the Subleased Premises to
Sublessee upon the full execution and delivery of this Sublease. Sublessee
shall, at its sole cost and expense, construct or cause to be constructed
and fully equip the Restaurant and any and all other improvements desired
by Sublessee and install all furniture, fixtures and equipment upon the
Subleased Premises in a first-class workmanlike manner and strictly in
accordance with plans and specifications prepared by or on behalf of
Sublessee and approved by Sublessor (whose approval shall not be
unreasonably withheld). Sublessee shall obtain all permits, certificates
and approvals necessary with respect to such work, and shall comply with
all legal requirements relating thereto.
(b) Sublessee shall not open the Restaurant for business until all
construction has been completed and a certificate of occupancy and all
other necessary permits have been issued. Sublessee shall open the
Restaurant for full business no later than May 1, 1999. Upon the issuance
of such certificates and permits, copies thereof shall be immediately
delivered to Sublessor.
(c) The interest of Sublessor in the Subleased Premises shall not be
subject to liens for improvements made by or on behalf of Sublessee.
Sublessee shall deliver to Sublessor partial and final lien waivers from
all contractors and subcontractors who supply labor and/or materials to or
for Sublessee in connection with the completion of the Restaurant. Nothing
contained in this Sublease shall be construed as a consent on the part of
Sublessor to subject Sublessor's estate in the Subleased Premises to any
lien or liability. In the event that any mechanic's, materialman's or
other lien or any notice of claim, including without limitation, a stop
notice (a "Lien") is filed against the Subleased Premises as a result of
any work, labor, services or materials performed or furnished, or alleged
to have been performed or furnished to or for the benefit of Sublessee or
to anyone holding the Subleased Premises by, through or under Sublessee,
Sublessee, at its expense, shall cause the Lien to be discharged of record
or fully bonded to the satisfaction of Sublessor within thirty (30) days
after notice of the filing thereof. If Sublessor fails to discharge or
bond against said Lien within thirty (30) days after notice of the filing
thereof, Sublessor may, in addition to any other rights or remedies
Sublessor may have, but without obligation to do so, bond against or pay
the Lien without inquiring into the validity or merits of such Lien, and
all sums so advanced, including reasonable attorneys' fees incurred by
Sublessor in defending against such lien, procuring the bond or in the
discharge of such lien, shall be paid by Sublessee on demand as additional
rent. It shall be Sublessee's continuing obligation to keep and maintain
the Subleased Premises free from any and all liens arising out of any work
performed, materials furnished or obligations incurred by or for the
benefit of Sublessee in connection with the Subleased Premises. In
addition, Sublessee shall replace any bonds posted by Sublessor pursuant
hereto with a suitable bond of equivalent amount within twenty (20) days
after Sublessor's demand therefor.
(d) In connection with Sublessee's construction of the Restaurant,
and thereafter in the event that Sublessee makes any alterations, repairs,
additions or improvements in or to the Subleased Premises, Sublessee agrees
to carry "Builder's All Risk" insurance in an amount reasonably approved by
Sublessor covering the performance of the same and such other insurance as
Sublessor may reasonably require.
4. EXPENSES. The Sublessee shall promptly pay, before any delinquency
can occur, any and all taxes, assessments and public charges levied, assessed or
imposed upon Sublessee's business or upon Sublessee's furniture, fixtures or
equipment located on the Subleased Premises, insurance, salaries, maintenance,
repairs and all other expenses connected with the use, operation and maintenance
of the Subleased Premises as provided herein. Sublessee shall (i) pay the
allocable portion of the real estate taxes and expenses relating to all common
areas respecting the Subleased Premises (including, without limitation,
maintenance, security, etc.), and (ii) provide and pay for all utilities to the
Subleased Premises. As used herein, "allocable" means the apportionment of such
taxes and expenses between the Restaurant and the Store on the basis of relative
ground floor square footage between the Store and the Restaurant. It is
intended that the Sublessor shall have no expense of any kind whatsoever during
the term of this Sublease and that the Sublessee shall be responsible for all
other expenses. Without limiting the foregoing, the Sublessee shall be
responsible for and shall promptly pay and hold the Sublessor harmless from the
following items of expense:
(a) REPAIRS AND MAINTENANCE. Sublessee shall, at its own cost and
expense, keep and maintain in good and as though new condition all aspects
of the Subleased Premises, including, without limitation, the interior
walls, floors, doors and windows, provided, however, Sublessee is not
required to refurbish to new condition items suffering ordinary wear and
tear until such time as the condition materially detracts from the
appearance or function of the Restaurant. Sublessee shall also replace any
broken glass in doors
and windows of the improvements of the area of space leased hereunder.
Sublessee shall also keep the area of space leased hereunder clean and
free from refuse.
(b) INSURANCE/INDEMNITY. At all times during the term of this
Sublease, Sublessee shall, at its sole cost and expense, keep all of
Sublessee's inventory of product, merchandise and contents and all of
Sublessee's furniture, equipment and fixtures insured against loss or
damage by fire and the hazards covered by broad-form extended coverage
clauses as well as coverage against loss of the merchandise on the
Subleased Premises due to theft or embezzlement in an amount at least equal
to the replacement value thereof. The Sublessor shall have no interest in
that portion of the insurance proceeds attributable to coverage for the
merchandise, contents or furniture owned by the Sublessee. Sublessee shall
provide, at its sole expense, a fire and extended coverage insurance policy
on the building and improvements of the Subleased Premises for the full
replacement value of all damaged property naming Sublessee as the insured
party. All insurance proceeds received under or by virtue of such policy
shall be the property of Sublessor and Sublessee shall have no interest
therein. At all times during the term of this Sublease, Sublessee shall
provide, at Sublessee's cost and expense, policies of commercial general
liability insurance insuring the Sublessor and the Sublessee against claims
for injury and wrongful death occurring upon the Subleased Premises, issued
by an insurance company acceptable to Sublessor, with minimum limits of
Three Million Dollars ($3,000,000.00) per occurrence (including contractual
and completed operations liability), and property damage insurance of a
minimum of Five Hundred Thousand Dollars ($500,000.00) showing the
Sublessor as additional insured. Sublessee will deposit copies of such
liability insurance policies with the Sublessor or furnish the Sublessor
with certificates of liability insurance prior to the occupancy of the
Subleased Premises. Sublessee shall deliver to Sublessor certificates
evidencing such insurance and each such policy shall contain a provision
providing that such policy may not be cancelled prior to the expiration
date thereof except upon not less than thirty (30) days' prior written
notice to the Sublessor. If at any time Sublessee shall fail to carry such
insurance, the Sublessor may obtain such insurance and Sublessee shall
promptly reimburse Sublessor for the cost thereof. Sublessee shall
indemnify and save Sublessor harmless from and against all liabilities,
obligations, losses, damages and claims, actions, suits and proceedings,
charges and expenses, including reasonable attorneys' fees, which may be
imposed upon or incurred by or asserted against the Sublessor in respect of
any use or condition of the Subleased Premises or attributed to
Sublessee's use, the sale of Sublessee's products or manner of the use of
the Subleased Premises, or Sublessee's operations. At all times, Sublessee
shall maintain in full force and effect full coverage worker's compensation
insurance in accordance with the laws of the state where the Subleased
Premises are located with a carrier acceptable to Sublessor and providing
such coverage to Sublessee and all of its employees, agents, servants and
contractors.
(c) OTHER. Sublessee shall pay and discharge all bills for heat, air
conditioning, light, water, sewer, service, telephone and other utility
charges to, or allocable to, the Subleased Premises. Sublessee shall not
suffer or permit any lien or encumbrance to attach to the Subleased
Premises by reason of any work done or performed or any material or
materials furnished by or to the Sublessee. Sublessee covenants to
indemnify, hold harmless and defend Sublessor from any and all such claims.
Sublessee agrees to pay to Sublessor as additional rent any amount of tax
imposed (whether upon Sublessor upon Sublessee) upon the rent payment under
this Sublease by any state, city, county or other taxing authority.
5. ABSENCE OF DUTY. Sublessee acknowledges and agrees that Sublessor has
no duty to any degree to safeguard or protect any property of Sublessee, and
Sublessee agrees to indemnify and hold Sublessor completely harmless from, and
hereby releases Sublessor from, any liability for any loss, destruction or
damage with respect thereto.
6. ASSIGNMENT AND SUB-LETTING. The Sublessee shall have no right to
assign or sub-let the Subleased Premises, or any part thereof, without first
having obtained the written consent of the Sublessor,
which consent will not be unreasonably withheld. Further, Sublessee
shall not assign or otherwise transfer, or mortgage or otherwise
encumber its rights as Sublessee under this Sublease, any furniture,
fixtures and equipment located or used in respect of the Restaurant or
any of the rights or properties of Sublessee in respect to the
Restaurant of the Subleased Premises.
7. USE OF THE PREMISES. The Subleased Premises shall be used and
occupied solely for restaurant services and no other uses and at all times shall
be used by Sublessee in compliance with all applicable laws and regulations
affecting the use of, or operations upon, the Subleased Premises nor will
Sublessee conduct any activity which increases the fire and extended insurance
coverage premium payable by Sublessor. Sublessee will not suffer or permit any
nuisance or any noxious or offensive activity to be conducted or maintained upon
the Subleased Premises. Sublessee further agrees to conduct its business to the
reasonable satisfaction of Sublessor and in a manner at least equal to any
first-class national food service operation as respects quality of food,
beverage, merchandise and customer service.
8. ALTERATIONS/SIGNS/EQUIPMENT. The Sublessee agrees not to make any
material alterations, remodeling or other changes in the structure of the
Subleased Premises and not to bore into or otherwise alter any structural
component of the building, nor make any changes in the electric wiring,
plumbing, heating or air-conditioning without having first obtained the written
consent of the Sublessor. The Sublessee may erect signs advertising its
business only in such style, appearance and location as Sublessor shall consent
to in writing, in advance. Sublessee acknowledges that it is not licensed to
utilize in any form the names, trademarks or logos of Sublessor. At the
termination of the Sublease, any and all fixtures and improvements on the
Subleased Premises shall become the property of the Sublessor at Sublessor's
option, and Sublessee agrees to peacefully and quietly surrender and yield
possession of the Subleased Premises to Sublessor in as good order, state and
condition as the same was at the commencement of this Sublease, ordinary wear
and tear excepted. Notwithstanding the above, any personal property or trade
fixtures installed by the Sublessee shall remain the property of Sublessee and
may be removed by Sublessee upon termination of this Sublease, however,
Sublessee shall repair any damage caused by such installation or removal.
9. CONDUCT/TRAINING. Sublessee agrees that it will cause its employees
to (i) present a neat, clean appearance, (ii) be thoroughly trained in customer
satisfaction and service skills, and (iii) act in a manner consistent with that
ordinarily and reasonably expected in an operation of the quality, size and type
of the Restaurant. Notwithstanding the foregoing, Sublessee acknowledges and
agrees that Sublessee's employees are under Sublessee's control, supervision and
direction and are not employees, agents, servants or contractors of Sublessor.
Sublessee shall be responsible for, and shall indemnify and hold Sublessor
harmless from, any claims by Sublessee's employees to wages, benefits,
withholdings or any other matter.
10. HOURS OF OPERATION. Sublessee agrees to be open for business on the
Subleased Premises at reasonably comparable opening times and dates as that of
Sublessor in the adjacent Outdoor World store, unless otherwise agreed to in
writing by the parties.
11. DESTRUCTION OF THE PREMISES. If the improvements on the Subleased
Premises are destroyed by fire or other casualty during the term of this
Sublease so as to render the Subleased Premises untenantable and the Subleased
Premises are not repairable within a period of ninety (90) days, then Sublessee
shall, within thirty (30) calendar days of the loss, elect to either terminate
the lease or rebuild. If Sublessee elects to rebuild, Sublessee shall utilize
the fire and extended coverage insurance proceeds, if any, to restore and equip
the Restaurant to substantially the same condition on or before the loss. If
the Sublessee elects not to rebuild and to terminate, then this Sublease shall
terminate as of the date of loss and the Sublessor and Sublessee shall have the
right to the fire and extended coverage insurance proceeds as their interests
appear in the Leased Premises, except that Sublessee shall be entitled to all
insurance proceeds on furniture, fixtures, equipment and other personal property
contents belonging to Sublessee. If the improvements on the Subleased Premises
are partially destroyed
or damaged by fire or other casualty so that the Subleased Premises are
rendered temporarily untenantable but are repairable within ninety (90)
days, then this Lease shall not be terminated or otherwise affected,
rent due hereunder shall not be abated, tolled, interrupted or
diminished and Sublessee shall utilize the fire and extended coverage
proceeds, if any, to rebuild and repair the improvements to
substantially the same condition as before the damage.
12. INSPECTION OF PREMISES BY SUBLESSOR. Sublessor shall have the right
to enter the Subleased Premises at all reasonable times for the purpose of
inspecting the same, or for exhibiting the Subleased Premises for purposes of
appraisal, inspection, sale, mortgage or re-letting or for repair in the event
of loss.
13. CONDEMNATION. If all of the Subleased Premises shall be taken in a
condemnation proceeding, or if a portion thereof shall be taken which materially
interferes with the use and operation of the Sublessee, this Sublease shall
terminate as of the date of such taking, and the Sublessee and the Sublessor
shall have rights to any proceeds of any condemnation award as their respective
interests appear in the leasehold improvements. If less than all of the
Subleased Premises shall be taken in a condemnation proceeding, but such taking
does not materially interfere with the use of the Subleased Premises by the
Sublessee, then this Sublease will continue and the rights under this Sublease
shall not change.
14. COVENANTS OF SUBLESSEE. Sublessee covenants and agrees with Sublessor
as follows:
(a) OPERATING COVENANT. Sublessee shall open the Restaurant for
business on the same date that Sublessor's Outdoor World store is open for
business and agrees to remain open during the Term of this Sublease during
all business days and hours and at all times to (i) maintain on duty a
fully trained service staff, and (ii) provide the high quality food of the
type and quality and customer service as is being provided in Sublessee's
Gaylord, Michigan Big Buck restaurant.
(b) PERFORMANCE COVENANT. The Sublessee covenants and agrees that
the Gross Sales for the first full calendar year immediately following the
opening of the Restaurant and for each calendar year thereafter shall
exceed $7,000,000.
(c) NO LIEN COVENANT. At no time and under no circumstances shall
Sublessee have the right, power or authority to encumber in any manner any
interest in the Subleased Premises, including, without limitation, any
leasehold improvements or any of the furniture, fixtures and equipment used
in or relating to the Restaurant.
(d) CUSTOMER SATISFACTION. No less frequently than each calendar
quarter during the Term, Sublessee shall, at its expense, conduct full and
complete customer surveys of customers of the Subleased Premises (the
"Surveys"). The Surveys shall be in form and content prepared by Sublessee
subject to the input and consent of Sublessor, which consent will not be
unreasonably withheld. The Surveys and tabulated results thereof shall be
furnished to Sublessor no later than thirty (30) days following the first
day each Survey was instituted.
15. DEFAULT. If Sublessee shall be adjudged a bankrupt, or if Sublessee
shall fail to keep, observe, comply with or perform any term, provision or
undertaking on the part of Sublessee required hereunder to be kept, observed,
complied with or performed (including, without limitation, the covenants of
Sublessee contained in Section 14 hereof), Sublessor may, at its option and upon
written notice to Sublessee, declare this Sublease to be immediately terminated
and all unpaid and reasonable calculable future rent over the balance of the
Term to be immediately due and payable to Sublessor. Sublessee is granting to
Sublessor a security interest in Sublessee's interest in the Sublease, the
Subleased Premises and all furniture, fixtures and equipment in the Restaurant
to secure payment of all of Sublessee's obligations to Sublessor under this
Sublease. At execution, Sublessee shall
execute such financing statements, security agreement or other documents
Sublessee may reasonably require to obtain such security interest and for the
perfection thereof. Default for non-payment of rent shall be deemed to have
occurred if the payment is not made on the date the rental payment is due and
the Sublessee shall have no right to cure said default, it being agreed that
time is of the essence with respect to the payment of rent. In the event of
default (other than for non-payment of rent) which default is not cured
within ten (10) days of default, Sublessor shall be entitled to immediate
possession of the Subleased Premises and all leasehold improvements and all
furniture, fixtures and equipment in the Subleased Premises and all further
rights of Sublessee to retain possession shall cease, and Sublessee shall
promptly remove all of its other property from the Subleased Premises. In
the event of default, Sublessee's interest in this Sublease shall terminate
and Sublessee will be considered a tenant from month to month for purposes of
an action by Sublessor to recover rent and possession and Sublessor shall be
entitled to the benefit of the most expeditious legal remedy provided by law
to evict and expel Sublessee. In the event of any such default as specified
herein, Sublessor shall also be entitled to exercise any and all other rights
and remedies available at law or in equity or otherwise in consequence of any
such default or defaults. If Sublessor is forced to utilize the courts to
enforce this Sublease, Sublessor shall be entitled to recover from Sublessee
reasonable attorney fees and court costs, in addition to the relief sought.
16. RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by
this Sublease are cumulative and the use of any one right or remedy by either
party shall not preclude or waive its right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
17. WAIVER OF DEFAULT. No waiver by the parties hereto of any default or
breach of any term, condition or covenant of this Sublease shall be deemed to be
waiver of the same or any other term, condition or covenant contained herein.
18. PRIOR AGREEMENTS SUPERSEDED. This Sublease constitutes the sole and
only agreement of the parties and supersedes any prior understandings or written
or oral agreements between the parties respecting the within subject matter.
19. NOTICES. All notices called for by this Sublease shall be given in
writing by certified mail, postage prepaid, as follows:
To the Sublessor:
Bass Pro Outdoor World, L.P.
Attention: Ms. Xxxx Xxxxxx
0000 Xxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
With Copy to:
Xxx X. Xxxxxx
Xxxxxx & Xxxxxx, L.L.P.
0000 Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
To the Sublessee:
Big Buck Brewery & Steakhouse, Inc.
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
With Copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxx and Xxxxxx, P.A.
0000 XXX Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
20. ENTIRE AGREEMENT. This agreement represents the entire agreement
between the parties and no other agreements, warranties or representations of
any kind are made by either party except as expressly contained herein. This
agreement can only be amended in writing by a document signed by both Sublessor
and Sublessee.
21. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and inure
to the benefit of the parties hereto, their respective heirs, successors and
assigns.
22. MEMORANDUM OF SUBLEASE. Either Sublessee or Sublessor may record a
Memorandum of this Sublease, in standard form and content, and each party agrees
to execute and deliver to the other such Memorandum in recordable form upon
request.
23. SECURITY AGREEMENT. The parties acknowledge that Sublessee, as a
condition which has been required by Sublessor, is concurrently executing a
Security Agreement which will secure any and all obligations of Sublessee to
Sublessor, including, without limitation, the due and punctual payment of rents
and the operating covenant.
24. GUARANTY. As a condition required by Sublessor, for and in
consideration of Sublessor's execution of this Sublease and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by Sublessee and by the "Guarantor" (as herein defined), Big Buck
Brewery & Steakhouse, Inc., a Michigan corporation ("Guarantor") unconditionally
guarantees the due and punctual payment of all rents and other sums due
(including interest and penalties) and to be paid by Sublessee pursuant to this
Sublease and the performance by Sublessee of all terms, conditions, covenants
and agreements of the Sublease, and Guarantor agrees to pay all of Sublessor's
costs, expenses and reasonable attorneys' fees incurred in enforcing the
covenants and agreements of Sublessee in the Sublease or incurred by Sublessor
in enforcing this guaranty. Guarantor waives notice of presentment, protest,
notice of protest and any and all demands for performance or any and all notices
of non-performance which might otherwise be a condition precedent to the
liability of Guarantor hereunder, and Guarantor covenants and agrees that
Sublessor may proceed directly against Guarantor, without first proceeding or
making claim or exhausting any remedy against Sublessee or pursuant to any
particular remedy or remedies available to Sublessor. The provisions of this
paragraph 24 shall be binding upon the successors and assigns of the Guarantor
and inure to the benefit of the successors and assigns of the Sublessor.
25. XXXXX LEASE. The parties acknowledge and agree that this Sublease is
subject and subordinate to the terms and conditions of the Xxxxx Lease.
26. CONDITION PRECEDENT. Neither Sublessor nor Sublessee shall have any
duty to perform under this Sublease until the conditions of Section 12.1(a) of
the Xxxxx Lease have been fully satisfied or waived in writing. Sublessor and
Sublessee agree to use all reasonable efforts to satisfy such condition
precedent.
27. WARRANTIES OF SUBLESSOR. The Sublessor warrants and represents to
Sublessee that the Xxxxx Lease furnished to Sublessee and initialed by the
Sublessor is a true copy of the Xxxxx Lease and the same remains in full force
and effect and has not been amended and that Sublessor is in compliance with the
terms and conditions thereof.
28. INDEMNIFICATION BY SUBLESSOR. Sublessor agrees to comply with all of
its obligations under the Xxxxx Lease, including the payment of all rent and
other monetary obligations thereunder, and agrees to indemnify and hold
Sublessee harmless from any loss or damage by reason of Sublessor's default
under the Xxxxx Lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands effective as
of the day and date first above written.
Sublessor: BASS PRO OUTDOOR WORLD, L.P.,
a Missouri Limited Partnership
By: BASSGEC MANAGEMENT COMPANY,
Its: General Partner
By: /s/ Xxxxx Xxxxx
--------------------------------------
Its: Executive Vice President
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Sublessee: BUCK & BASS, L.P., a Missouri
Limited Partnership
By: BBBP MANAGEMENT COMPANY,
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: Sole Incorporator
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Guarantor for purposes of
guaranteeing the obligations
of Sublessee as provided
in paragraph 24:
BIG BUCK BREWERY & STEAKHOUSE, INC.
a Michigan corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: President and CEO
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