LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into as of October
28, 1999, by and between:
(i) See Exhibit "A" ("Landlord"), and
(ii) VICORP RESTAURANTS, INC., a Colorado corporation,
With a mailing address of 000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx
00000 ("Tenant").
WITNESSETH:
Landlord leases to Tenant, for the purpose of operating a
Bakers Square Restaurant and for such other purpose as is
specifically authorized in paragraph 12(b) of this Lease (but for
no other use or purpose whatsoever) and subject to the terms and
conditions of the Rent Addendum attached hereto, and Tenant rents
from Landlord the properties described in Exhibit "A" attached
hereto and made a part thereof, together with all rights and
privileges in and about the Premises as may be necessary or
convenient to Tenant's business, inclusive of all easements
benefiting the real property described in Exhibit "A". Premises
shall include all improvements and structures whether now
existing or hereafter constructed thereon. The following
additional stipulations are thereby declared to be covenants of
this Lease and shall, unless otherwise expressly stated, be
applicable at all times throughout the term of this Lease and any
extension or renewal thereof:
1. DEFINITIONS
For purposes of this Lease, the following terms are hereby
defined to mean:
"Effective Date" shall mean the first date set forth at the
beginning of this Lease.
"Landlord" shall mean (see Exhibit "A"), its successors and
assigns.
"Lease" shall include this Lease Agreement and all
amendments hereto, if any, entered into from time to time
hereafter.
"Lease Year" shall mean a fiscal period beginning on the
Effective Date (and each anniversary thereof) and expiring
twelve (12) months thereafter.
"Rent" shall mean the Rent payable under this Lease as set
forth in the Rent Addendum attached hereto and incorporated
herein, and shall include Annual Rent (all as defined in the
Rent Addendum).
2. TERM AND RENT
(a) The term of this Lease shall begin on the Effective
Date and shall expire on a date fifteen (15) years thereafter unless
previously terminated or renewed or extended as provided herein.
(b) Rent shall be due and payable as provided in the Rent
Addendum attached hereto and incorporated herein.
3. ALTERATIONS AND IMPROVEMENTS, INVESTMENT TAX CREDIT,
MECHANIC'S LIENS, LANDLORD'S DISCLAIMER
(a) Alterations and Improvements
(i) Tenant's Property. Tenant shall be permitted to install,
use on and about, and remove from the Premises at any time and
from time to time all trade fixtures and other
personal property (exclusive of lighting, electrical,
heating and air conditioning improvements) which are
not a component of the building located or to be
located on the Premises (hereinafter referred to as the
"Tenant's Property"), all of which at all times shall
remain the property of Tenant with the right of removal
(subject to paragraph (d) below) at the expiration of
this Lease. Trade fixtures shall include: (1)
removable decor items and office equipment; (2)
building lettering, signs, signposts and sign
standards; (3) unattached food and customer service
equipment; and (4) food and customer service equipment
attached to the building by bolts and screws and/or
by utility connections, including without limitation,
walk-in refrigerators and freezers, remote
refrigeration systems, exhaust systems and hoods.
(ii) Subsequent Improvements. Tenant shall also have
the right to make any additions, alterations, changes
and improvements, structural and nonstructural,
including but not limited to construction of additional
buildings and additions to the then existing buildings,
as Tenant shall desire; provided, however, (i) Tenant
shall submit plans of all structural changes to
Landlord at least thirty (30) days in advance of the
proposed construction date, which plans shall be
subject to the Landlord's reasonable approval.
(ii)Tenant shall provide Landlord with evidence of
Tenant's financial ability to pay for such changes,
(iii) if the cost of structural changes exceeds FIFTY
THOUSAND AND NO/100 DOLLARS ($50,000.00) for the
Premises, Tenant shall post payment and performance
bonds for such work naming Landlord and Tenant as dual
obligees, (iv) all such construction shall be completed
in a workmanlike manner and in full compliance with all
building laws and ordinances applicable thereto, at
Tenant's expense, and (v) such additions, alterations,
changes and improvements shall not reduce the fair
market value of the Premises. Notwithstanding the
foregoing provisions of paragraph 3(a)(ii)(ii), no
payment or performance bonds shall be required,
provided, however: Tenant meets the minimum cash flow
and net worth requirements set forth in paragraph 4(h)
of this Lease; and (ii) Tenant has no more than One
Million Dollars ($1,000,000.00) of contracts for
construction or renovation relating to the premises
identified in Exhibit "B" attached hereto at any one
time.
(iii) Improvements Upon Termination, Subletting or
Assignment. Tenant shall have the right, at its option
and expense, to redecorate or otherwise remodel the
Premises upon any termination hereof or upon subletting
or assignment in such manner as will, without reducing
the fair market value thereof, avoid the appearance of
the Bakers Square Restaurant operated under this Lease; provided,
however, Tenant shall not impair the structural
condition of the Premises or reduce the size thereof.
All such Subsequent Improvements, Improvements upon
Termination, Subletting or Assignment, or other
additions, alterations, changes and improvements of any
type shall be deemed to be a part of the Premises.
(b) Investment Tax Credit. Landlord hereby grants Tenant
the right and privilege of applying for and receiving all
investment tax credits, if any, under the Internal Revenue Code
which may be available with respect to the building and other
improvements to be constructed. To this end, Landlord agrees to
execute all such further documents and supply such additional
information as may be required to make such election effective.
(c) Mechanic's Liens. Tenant shall not do or suffer
anything to be done whereby the Premises, or any part thereof,
may be encumbered by a mechanic's lien or similar lien, and, if,
whenever and as often as any mechanic's lien or similar lien is
filed against the Premises, or any part thereof, purporting to be
for or on account of any labor done, materials or services
furnished in connection with any work in or about the Premises,
done by, for or under the authority of Tenant, or anyone claiming
by, through or under Tenant, Tenant shall discharge the same of
record within thirty (30) days after service upon Tenant notice
of the filing thereof or such longer period as agreed to by
Landlord, in its sole discretion, (provided, however, Tenant is
diligently and in good faith attempting to discharge such lien)
or within ten (10) days after written request of Landlord,
Whichever is earlier; provided, however, Tenant shall have the
right to remove the lien by bonding same in accordance with
applicable law and to contest any such lien; provided further
that Tenant shall diligently prosecute any such contest, at all
times effectively staying or preventing any official or judicial
sale of the Premises under execution or otherwise, and, if
unsuccessful, satisfy any final judgment against Tenant adjudging
or enforcing such lien or, if successful, procuring record
satisfaction or release thereof.
(d) Landlord's Disclaimer. All of Tenant's Property placed in or
upon the Premises by Tenant shall remain the property of Tenant with the
right to remove the same at any time during the Term of this
Lease. Landlord, if requested by Tenant, agrees to execute such
documentation subordinating its lien rights (vis a vis any
equipment lender or landlord) to Tenant's personalty and to all
rights of levy for distraint for rent against same as shall be
reasonably required by any equipment lender or lessor of Tenant;
provided any damage caused by, or resulting from the removal of
any trade fixtures, equipment or other personal property shall be
promptly repaired by Tenant or the party entitled to remove same.
4. DESTRUCTION OF PREMISES; INSURANCE
(a) If the Premises are damaged or destroyed by fire, flood,
tornado or other element, or by any other casualty and such damage
or destruction does not occur within the last twenty-four (24) months
of the original or of any extended or renewed term of this Lease, this
Lease shall continue in full force and effect and Tenant shall,
as promptly as possible, restore, repair, rebuild the Premises to
substantially the same condition as it existed before the damage
or destruction, including any improvements or alterations
required to be made by any governmental body, county or city
agency, due to any changes in code or building regulations.
Tenant shall for this purpose use all, or such part as may be
necessary, of the insurance proceeds received from insurance
policies carried on the Premises under the provision of
subparagraph 4(b) here in below. If such insurance proceeds are
not sufficient to pay such costs, Tenant shall pay such deficit.
Should the Premises be damaged or destroyed by any of the foregoing
described casualties within the last twenty-four (24) months of the
original term or of any extended or renewed term of this Lease, to
the extent that they are untenantable or unsuitable, in Tenant's
opinion for continued use in the normal conduct of Tenant's business,
Tenant shall have the right, exercisable by written notice to Landlord
given within sixty (60) days after the date of such damage or destruction,
of terminating this Lease effective upon the date of such damage or
destruction. If Tenant terminates this Lease as thus provided
Landlord shall be entitled to all of the insurance proceeds on
the Premises, but not to the proceeds of insurance carried by
Tenant on Tenant's Property; provided, however, Tenant shall not
have the right to terminate this Lease unless (1) the damage or
destruction of the Premises was caused by a peril which was
insured against by the provisions of subparagraph 4(b) of this
Lease; (ii) at the time of such damage and destruction the said
insurance policies plus any Tenant deductibles to be carried by
Tenant were in the amount of the full replacement cost of such
improvements and in full force and effect; and (iii) the insurer
has confirmed coverage and its obligation to pay. The foregoing
sixty (60) day period may be extended in the reasonable
discretion of the Landlord in the event the insurer
(notwithstanding the due diligence of the Tenant) has not yet
confirmed coverage or its obligation to pay as required in
paragraph 4(a)(iii) above. If Tenant defaults in its obligation
to carry insurance in the amount required under subparagraph
4(b), then, prior to a Tenant termination of this Lease, Tenant
shall be obligated to pay toward said reconstruction or to
Landlord the difference between the amount actually carried and
the amount required to be carried under this paragraph.
(b) Tenant, at its expense and as additional rent
hereunder, shall throughout the term of this Lease and any
extension or renewal thereof, keep the Premises insured with "all
risk" coverage, including code changes, glass breakage, vandalism
and malicious mischief coverage, and builders risk (if the
Premises are to be constructed)("all risk" as such term is used
in the insurance industry) for the full replacement value, with
any deductible in excess of One Hundred Thousand Dollars
($100,000.00) to be approved by Landlord (and without any
co-insurance provision (Agreed Value endorsement)). The reference
to "code changes" herein shall mean that Tenant shall carry
"Ordinance and Law Coverage" with limits of not less than the
building value for Coverage A (loss to the undamaged portion
of the building), limits of not less than fifteen percent (15%)
of the building value for Coverage B (Demolition Cost Coverage),
and limits not less than fifteen percent (15%) of the building value for
Coverage C (Increased Cost of Construction Coverage). If Tenant
serves alcoholic beverages, or if the Premises are located in a
flood or earthquake zone (as defined in subparagraphs "(e)" and
"(f)" below), then additional coverage shall be obtained by
Tenant in amounts and in form acceptable to Landlord.
(c) Tenant shall maintain, at its own expense and as
additional Rent, public liability insurance (including product
and liquor liability) covering the Premises, for the joint
benefit of and insuring Tenant and Landlord, each with coverage
of not less than One Million Dollars ($1,000,000.00) per
occurrence, with a Two Million Dollars ($2,000,000.00) general
aggregate limit, and with umbrella liability coverage (including
product and liquor liability or "following form insurance") of
not less than Ten Million Dollars ($10,000,000.00) per
occurrence/aggregate, with any deductible in excess of One
Hundred Thousand Dollars ($100,000.00) to be approved by
Landlord. Landlord (and if Landlord is either a general or
limited partnership, all general partners) shall be named as an
additional insured.
(d) Tenant shall maintain, at its own expense, rental value
insurance covering risk of loss due to the occurrence of any of
the hazards insured against under Tenants' "all risk" coverage
insurance and providing coverage in an amount sufficient to
permit the payment of rents payable hereunder for a period (in
such case) of not less than six (6) months.
(e) In the event the Premises are located in an area
identified by the National Flood Insurance Program as an area
having "special flood hazards" (zones beginning with "A" or "V,"
Tenant shall maintain flood insurance for the full replacement
value of the Premises, with any deductible in excess of One
Hundred Thousand Dollars ($100,000.00) to be approved by
Landlord.
(f) In the event the Premises are located in a major
earthquake damage area and earthquake insurance is available,
Tenant shall maintain earthquake insurance for the full
replacement value of the Premises, with any deductible in excess
of One Hundred Thousand Dollars ($100,000.00) to be approved by
Landlord.
(g) Upon mutual agreement of the Landlord and Tenant, in
writing, all stated deductibles or self insured retentions may be
increased; provided, however, Tenant's EBITDA (as defined in
subparagraph (h) below) and audited net worth thresholds are
reasonably acceptable to the Landlord. All insurance companies
providing the coverage required under this Paragraph 4 shall
(unless prior written consent has been obtained by Landlord) be
selected by Tenant; (ii) rated A minus (A-)(ix) or better by
Best's Insurance Rating Service; (iii) licensed to write
insurance policies in the state in which the Premises is located;
and (iv) acceptable to Landlord in Landlord's reasonable
discretion. Tenant shall provide Landlord with copies of all
policies or certificates of such coverage for the insurance
coverages referenced in this Paragraph 4, and all commercial
general liability and umbrella liability policies shall name
Landlord and any mortgagee designated by Landlord as an
additional insured. All property insurance policies shall name
the Landlord as a loss payee as their interests may appear, and
shall provide that all losses shall be payable as herein
provided. All such property insurance policies of insurance
shall provide that the amount thereof shall not be reduced and
that none of the provisions, agreements or covenants contained
therein shall be modified or canceled by the insuring company or
companies without thirty (30) days prior written notice being
given to Landlord; and that all property insurance proceeds shall
be paid by check jointly payable to Landlord and Tenant. Such
policy or policies of insurance may also cover loss or damage to
Tenant's Property, and the insurance proceeds applicable to
Tenant's Property shall not be paid to Landlord or any mortgagee
but shall accrue and be payable solely to Tenant. In the event
of a casualty, Tenant shall be responsible for any deficiency
between the replacement cost of the Premises and the amount
actually paid by the insurance company.
(h) Notwithstanding the foregoing, Tenant shall have the
ongoing right during the term of this Lease to self insure
(including the right to increase all stated deductibles) for all
or a portion of the insurance required hereunder, subject,
however, to the following: (i) Tenant's earnings before interest,
taxes, depreciation and amortization ("EBITDA") shall, for Tenant's
prior fiscal year, equal or exceed the sum of Fifteen Million Dollars
($15,000,000.00) and (ii) Tenant's net worth shall at all times
equal or exceed the sum of Thirty Million Dollars ($30,000,000.00).
5. MAINTENANCE AND REPAIR; CONDITION OF PREMISES
(a) Tenant shall maintain the Premises and all buildings
and improvements thereon (interior and exterior, structural and
otherwise) in good order and repair and, subject to the
provisions of paragraph 4(a) with respect to damage within the
last twenty-four (24) months of the Lease, and paragraph 6
herein, return the Premises and all buildings and improvements
thereon at the expiration of the term of this Lease or any
extension thereof in as reasonably as good condition as when
received, ordinary wear and tear excepted.
(b) Tenant agrees that Landlord shall have no obligation
under this Lease to make any repairs or replacements (including
the replacement of obsolete components) to the Premises or the
buildings or improvements thereon, or any alteration, addition,
change, substitution or improvement thereof or thereto, whether
structural or otherwise. The terms "repair" and "replacement"
include the replacement of any portions of the Premises which
have outlived their useful life during the term of the Lease (or
any extensions thereof). Landlord and Tenant intend that the
rent received by Landlord shall be free and clear of any expense
to Landlord for the construction, care, maintenance (including
common area maintenance charges and charges accruing under
easements or other agreements relating to the Premises),
operation, repair, replacement, alteration, addition, change,
substitution and improvement of or to the Premises and any
building and improvement thereon. Upon the expiration or earlier
termination of this Lease, Tenant shall remain responsible for,
and shall pay to Landlord, any cost, charge or expense for which
Tenant is otherwise responsible for hereunder attributable to any
period (prorated on a daily basis) prior to the expiration or
earlier termination of this Lease.
(c) Tenant acknowledges and agrees that the Premises is and
shall be leased by Landlord to Tenant in its present "AS IS"
condition, and that Landlord makes absolutely no representations
or warranties whatsoever with respect to the Premises or the
condition thereof. Tenant acknowledges that Landlord has not
investigated and does not warrant or represent to Tenant that the
Premises is fit for the purposes intended by Tenant or for any
other purpose or purposes whatsoever, and Tenant acknowledges
that the Premises is to be leased to Tenant in their existing
condition, i.e., "AS IS", on and as of the Effective Date.
6. CONDEMNATION
(a) In the event that (i) any part of the building on the
Premises or (ii) such a material portion of the land constituting
a portion of the Premises (for purposes hereof, "material" shall
mean 40% or more of the land constituting a portion of the
Premises) or (iii) a material portion of the parking (where
Landlord is unable within fourteen (14) days prior to the date of
surrender to provide suitable replacement parking facilities
adjacent to the Premises) shall be taken during the term of this
Lease or any extension or renewal thereof for any public or quasi-
public use under any governmental law, ordinance, regulation or
by right of eminent domain, or shall be sold to the condemning
authority under threat of condemnation, with the result occurring
from (i), (ii) or (iii) above being that the Premises cannot
continue to be operated as the type of restaurant contemplated
herein, or if reasonable access to the adjacent roadways from the
existing or comparable curb cuts shall be taken (any of such
events being hereinafter referred to as a "taking"), Tenant shall
have the option of terminating this Lease as of a date no earlier
than the date of such taking, such termination date to be
specified in a notice of termination to be given by Tenant to
Landlord not fewer than fourteen (14) days prior to the date on
which possession of the Premises, or part thereof, must be
surrendered to the condemning authority or its designee.
(b) In the event of any taking which does not give rise to
an option to terminate or in the Event of a taking which does give
rise to an option to terminate and Tenant does not elect to terminate,
Landlord shall make its award available to Tenant and Tenant shall,
to the extent of the award from such taking (which word "award" shall
mean the net proceeds after deducting expenses of any settlement, or net
purchase price under a sale in lieu of condemnation), promptly
restore or repair the Premises and all improvements thereon
(except the items which Tenant is entitled to remove) to the same
condition as existed immediately prior to such taking insofar as
is reasonably possible. If the estimated cost of restoration or
repair shall exceed the amount of Landlord's award, Tenant shall
deposit with Landlord the amount of such excess. The award and
any excess shall be held in trust by Landlord and used, to the
extent required, for the purpose of such restoration or repair.
A just and proportionate part of the Rent payable hereunder shall
be abated from the date of such taking until ten (10) days after
Tenant has restored same and thereafter the Rent shall be reduced
in proportion to the reduction in the then rental value of the
Premises after the taking in comparison with the rental value
prior to the taking. If the award shall exceed the amount spent
or to be spent promptly to effect such restoration, repair or
replacement, such excess shall unconditionally belong to Landlord
and shall be paid to Landlord.
(c) In the event of any partial taking where this Lease is
not terminated, Tenant shall not be entitled (except for use in
reconstruction) to any part of the compensation or award given
Landlord for the taking of the fee of the Premises, but Tenant
shall have the right to recover from the condemning authority
such compensation as is specifically awarded to Tenant (i) to
reimburse Tenant for any cost which Tenant may incur in removing
Tenant's Property from the Premises and (ii) for loss of Tenant's
business.
(d) If this Lease is terminated by reason of a taking, then
Landlord shall be entitled to receive the entire award in any
such condemnation or eminent domain proceedings or purchase in
lieu thereof and Tenant hereby assigns to Landlord all of its
right, title and interest in and to all and any part of such
award, provided, however, Tenant shall be entitled to receive any
award specifically made to reimburse Tenant.
7. TAXES AND ASSESSMENTS
Tenant shall pay prior to delinquency all taxes and
assessments which may be levied upon or assessed against the
Premises and all taxes and assessments of every kind and nature
whatsoever (excluding Landlord's income tax, if any) arising in
any way from the use, occupancy or possession of the Premises or
assessed against the improvements situated thereon, together with
all taxes levied upon or assessed against Tenant's Property. To
that end, Landlord shall not be required to pay any taxes or
assessments whatsoever which relate to or may be assessed against
this Lease, the Rent and other amounts due hereunder, the
Premises, improvements and Tenant's Property. Provided, however,
that any taxes or assessments which may be levied or assessed
against the Premises for a period ending after the termination
hereof shall be prorated between Landlord and Tenant as of such
date. Within thirty (30) days after Tenant receives the paid
receipted tax bills, Tenant shall furnish Landlord with copies of
a paid receipt for such tax bills. Tenant may, at its option,
contest in good faith and by appropriate and timely legal
proceedings any such tax and assessment; provided, however, that
Tenant shall indemnify and hold harmless Landlord from any loss
or damage resulting from any such contest, and all expenses of
same (including, without limitation, all attorneys' fees, court
and other costs) are paid solely by Tenant.
8. COMPLIANCE, UTILITIES, SURRENDER
(a) Tenant at its expense shall promptly comply with all
governmental requirements, whether or not compliance therewith
shall require structural changes in the Premises; will procure
and maintain all permits, licenses and other authorizations
required for the use of the Premises or any part thereof then
being made and for the lawful and proper installation, operation
and maintenance of all equipment and appliances necessary or
appropriate for the operation and maintenance of the Premises,
and shall comply with all easements, restrictions, reservations
and other instruments of record applicable to the Premises,
including without limitation, the procuring and maintaining of
insurance required to be maintained by the owner or occupant of
the Premises. Tenant shall indemnify and save Landlord harmless
from all expenses and damages by reason of any notices, orders,
violations or penalties filed against or imposed upon the
Premises, or against Landlord as owner thereof, because of
Tenant's failure to comply with this paragraph.
(b) Tenant shall pay all charges for heat, water, gas,
sewage, electricity and other utilities used or consumed on the
Premises and shall contract for the same in its own name.
Landlord shall not be liable for any interruption or failure in
the supply of any such utility service to the Premises.
(c) Tenant shall peacefully surrender possession of the
Premises, the buildings and other improvements thereon, to
Landlord at the expiration, or earlier termination, of the
original term or any extended or renewed term of this Lease.
9. QUIET ENJOYMENT
Landlord covenants and warrants that Landlord has full power
and authority to make this Lease, and that Tenant shall have and
enjoy full, quiet and peaceful possession of the Premises, their
appurtenances and all rights and privileges incidental thereto
during the term hereof and any renewals or extensions, subject to
the provisions of this Lease and any easements, restrictions,
reservations and other instruments of record applicable to the
Premises and in existence at the time of the conveyance of the
Premises to Landlord by Tenant.
10. OPTION TO RENEW
Tenant Shall have one (1) successive ten (10) year and two
(2) successive five (5) year options (to be exercised in the
order stated) to extend this Lease for up to an additional twenty
(20) years upon the same terms, covenants, conditions and rental
as set forth herein provided that Tenant is not in default
hereunder at the commencement of such option period. Tenant may
exercise each such five (5) year option by giving written notice
to Landlord not less than six (6) months prior to the expiration
of the then current term of this Lease. Should Tenant fail to
give Landlord such timely written notice during the required
period, all remaining rights of renewal shall automatically
expire.
11. FIRST RIGHT OF REFUSAL TO PURCHASE; ECONOMIC INFEASIBILITY
(a) So long as Tenant is not in default under this Lease,
Tenant shall have the right to purchase the Premises in
accordance with the terms of this paragraph. If Landlord
receives and desires to accept a bona fide offer to purchase
(excluding any transfer to an affiliate of Landlord) the Premises
during the term of this Lease or any extension or renewal
thereof, Landlord shall serve a notice on Tenant stating the name
of such offeror with a copy of the terms and conditions of such
offer attached and Tenant shall have the right to purchase the
Premises on the same terms and conditions set forth in Landlord's
notice, provided Tenant delivers written notice to Landlord of
its election to do so within twenty (20) days after receipt of
such notice from Landlord. If Tenant does not elect to exercise
its right to purchase as aforesaid, Landlord may sell the
Premises, provided the sale is consummated with the offeror and
on the terms and conditions set forth in Landlord's notice to
Tenant. The foregoing preemptive right shall remain in existence
notwithstanding its non-exercise in respect to any sale and shall
be binding upon Landlord's successors in title.
(b) In the event the Tenant determines in its reasonable
business discretion, exercised in good faith, that the Premises
is inadequate or unprofitable for the purposes for which the same
are then used pursuant to the Lease, then Tenant may, at
Tenant's option, during the term of the Lease or any extensions
thereof, give written notice to the Landlord of its intention to
substitute another improved property having a Village Inn or
Bakers Square located thereon, which shall have a value no less
than the greater of the following: (1) the then current value of
the Premises as established by a qualified independent appraiser
(who is a member of the American Institute of Real Estate
Appraisers); or (2) Landlord's original Purchase Price for the
Premises. Such other restaurant shall be subject to Landlord's
approval and shall be subject to the approval of any then
mortgagee having an interest in the Premises. The terms of the
related lease for such substitute property shall be identical to
this Lease, except that the term shall be for the then remainder
of the term of this Lease (considering renewal options). Tenant
shall pay all reasonable costs associated with the closing to
effect the substitution. Upon Landlord's and any mortgagee's
approval of the substitution of the Premises, a closing of title
shall take place as soon as reasonably practical thereafter, but
in no event later than sixty (60) days after Tenant is notified
that the Landlord has approved the substitution. If the Landlord
and the Landlord's mortgagee (if any) do not approve such
substitute property, Tenant may submit other properties to the
Landlord for the Landlord's (and the Landlord's mortgagee, if
any) approval.
12. NONCOMPETE; CONDUCT OF BUSINESS
(a) Tenant shall not own an interest in, or operate,
another Bakers Square Restaurant within a Three (3) mile radius
of the Premises. The foregoing restriction shall not preclude
Tenant from: (i) selling its products in supermarkets and other
similar stores; (ii) operating kiosks or counters from which its
food products will be sold; or (iii) operating another Bakers
Square concept within such three (3) mile radius provided such
concept (a) does not use the word "Restaurant" in its name or
advertising or promotional materials and ( b) is not larger than
two thousand five hundred (2,500) total square feet in size and
(c) has limited table service. Violation of this covenant shall
constitute a default hereunder and, because the parties agree
that damages would not be an adequate remedy, Tenant hereby
agrees that Landlord shall be entitled to equitable relief,
including injunctive relief and specific performance in addition
to any remedy available at law.
(b) The use of the Premises shall be limited to the
operation of a Bakers Square Restaurant or an "Approved Concept"
as defined in paragraph 17(a), and Tenant shall continuously
operate such restaurant on the Premises except for temporary
closure due to repairs, Acts of God and similar matters. The
Tenant shall at all times maintain the Premises and operate its
business in compliance with all applicable regulations and
requirements of all county, municipal, state, federal and other
governmental authorities, and instruments of record affecting
the Premises which are now in force or which are enacted during
the term of the Lease.
13. DEFAULT
(a) If any one or more of the following events occur, said
event or events shall hereby be classified as a "Default":
(i) If Tenant fails to pay Interim Rent (if applicable), Annual
Rent, any additional rent, or any other charges required hereunder or in
the event there is a payment or monetary default in any other
lease for a property identified on Exhibit "A" attached hereto
between Tenant and Landlord or an affiliate of Landlord with the
(x) payment amount in default at any one time exceeding Fifty
Thousand Dollars ($50,000.00) or (y) the aggregate of payment or
monetary defaults at any one time exceeding Fifty Thousand
Dollars ($50,000.00) when same shall become due and payable, and
such failure continues for ten (10) days after written notice
from Landlord.
(ii) If Tenant shall fail to perform or observe any
term, condition, covenant, agreement, or obligation of this Lease
and such failure continues for fifteen (15) days after written
notice from Landlord (except that such fifteen (15) day period
shall be automatically extended for such additional period of
time as is reasonably necessary to cure such Default, if such
Default cannot be cured within such period, provided Tenant is in
the process of diligently curing the same).
(iii) [INTENTIONALLY DELETED]
(iv) If Tenant fails to continuously operate its business within
the premises except temporary periods of closure caused by casualty,
or (ii) temporary and reasonable periods of remodeling (not to
exceed ninety (90) days in any Lease Year without first obtaining
Landlord's written approval).
(v) If Tenant shall make an assignment for the benefit
of creditors or file a petition, in any federal or state court, in bankruptcy,
reorganization, composition, or make an application in any such
proceedings for the appointment of a trustee or receiver for all
or any portion of its property.
(vi) If any petition shall be filed under federal or
state law against Tenant in any bankruptcy, reorganization, or
insolvency proceedings, and said proceedings shall not be
dismissed or vacated within one hundred and twenty (120) days
after such petition is filed.
(vii) If a receiver or trustee shall be appointed
under federal or state law for Tenant, or any guarantor of
Tenant's obligations hereunder, for all or any portion of the
property of either of them, and such receivership or trusteeship
shall not be set aside within one hundred and twenty (120) days
after such appointment.
(b) Landlord will have the remedies set forth in subparagraphs
(c) and (d) below if Tenant commits a default.
(c) Landlord can terminate this Lease and recover
possession of the Premises by (i) notifying Tenant that Landlord elects
to terminate this Lease, or (ii) terminating Tenant's right to
possession of the Premises. For purposes hereof, reletting the
Premises or denying Tenant access to the Premises will constitute
a termination of Tenant's right to possession of the Premises;
provided, however, that acts of maintenance, efforts to the Premises,
or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest under this Lease will not constitute a termination
of Tenant's right to possession. Upon any termination, Landlord has the
right to recover from Tenant:
(1) The worth, at the time of the award, of the unpaid rent that
had been earned at the time of termination of this Lease; plus
(2) The worth, at the time of the award, of the amount by which
the unpaid rent that would have been earned after the date of
termination of this Lease until the time the award exceeds the
amount of the loss of rent that Tenant proves could have been
reasonably avoided; plus
(3) The worth, at the time of the award, of the amount by which
unpaid rent for the balance of the term after the time of award
exceeds the amount of the loss of rent that Tenant proves could
have been reasonably avoided; plus
(4) Any other amount, including court costs, and including but not
limited to, allocable overhead, alterations to the building,
leasing, construction, architectural, legal and accounting
fees necessary to compensate Landlord for all detriment
proximately caused by Tenant's default.
The phrase "worth, at the time of the award" as used in (1) and
(2) above is to be computed by allowing interest at the rate of
eighteen percent (18%) per annum, or, if less, the highest rate
allowable by law. The same phrase as used in (3) above is to be
computed by discounting the amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of the award.
(d) Landlord can continue this Lease in full force and
effect, and Landlord will have the right to collect rent when
due, as long as Landlord does not terminate this Lease as set
forth in paragraph 13(c).
(e) If this Lease shall terminate as provided hereinabove,
Landlord may re-enter the Premises and remove Tenant, its agents
and sub-tenants, together with all or any of Tenant's Property,
by suitable action at law, or by force. Tenant waives any right
to the service of any notice of Landlord's intention to re-enter
and Landlord shall not be liable in any way in connection with
any action it takes pursuant to this paragraph. Notwithstanding
such re-entry or removal, Tenant's liability under the provision
of this Lease shall survive and continue.
(f) The rights and remedies of Landlord set forth herein shall
be in addition to any other right and remedy now or hereinafter
provided by law, and all such rights and remedies shall be
cumulative. No action or inaction by Landlord shall constitute a
waiver of Default, and no waiver of Default shall be effective
unless it is in writing, signed by Landlord.
14. HOLDING OVER
In the event Tenant remains in possession of the Premises
after the expiration of this Lease, without executing a new
lease, Tenant shall occupy the Premises as a tenant from month to
month subject to all the terms hereof, but such possession shall
not limit Landlord's rights and remedies by reason thereof nor
constitute a holding over.
15. WAIVER OF SUBROGATION
Notwithstanding anything in this Lease to the contrary,
other than Tenant's obligations to repair, restore or rebuild
described in paragraph 4 hereinabove, neither party shall be
liable to the other for any damage or destruction of the property
of the other resulting from fire or other casualty covered by
insurance required of either party hereunder, whether or not such
loss, damage or destruction of property is caused by or results
from the negligence of such party (which term includes such
party's officers, employees, agents and invitees), and each party
hereby expressly releases the other from all total liability for
or on account of any said loss, damage or destruction, whether or
not the party suffering the loss is insured against such loss,
and if insured whether fully or partially. Each party shall
procure all endorsements of insurance policies carried by it
necessary to protect the other from any right of subrogation
and/or liability in the event of such loss.
16. LIEN FOR RENTS
[INTENTIONALLY DELETED]
17. ASSIGNMENT AND SUBLETTING
(a) The Tenant shall not have the right, without first
obtaining the Landlord's prior written consent, to assign or
sublet any part or all the Premises to any party for any purpose.
Landlord's consent will not be unreasonably withheld, provided,
however, (1) the Tenant remain fully liable for its obligations
under the Lease; (2) the assignee or sublessee shall be "An
Approved Tenant" (as defined below); and (3) the Premises shall
be operated as an "Approved Concept" (as defined below). The
Landlord, in its sole and absolute discretion, may withhold its
approval if the aforementioned requirements are not satisfied.
For purposes of this Lease, the term "Approved Tenant" shall
mean an assignee or sublessee who (i) has a minimum net worth of
not less than Ten Million Dollars ($10,000,000.00) at the time of
assignment or subletting; and (ii) operates not less than four
(4) full service restaurants or ten (10) fast food or "quick
serve" restaurant concepts which are Approved Concepts. For
purposes of this Lease, the term "Approved Concept" shall mean a
restaurant concept which (i) is listed in the "Top 200 Restaurant
Chains" as ranked in the most recently published edition of the
Nation's Restaurant News or similar publication selected by Landlord
at the time of such assignment; (ii) is an approved restaurant
concept by Landlord according to Landlord's then current underwriting
and credit guidelines; and (iii) does not violate Landlord's then current
concentration requirements. Notwithstanding the foregoing,
Tenant shall have the right (subject to Landlord's prior written
approval, which approval shall not be unreasonably withheld) to
sublet (but not assign) the Premises to any entity operating a
full service, sit-down restaurant concept with not more than
fifty percent (50%) of its gross sales derived from the sale of
liquor, provided: (i) Tenant sublets the Premises within the
first ten (10) Lease Years (after which period this right shall
automatically terminate); (ii) the total number of such
sublettings by Tenant (inclusive of the Premises) does not exceed
two (2) for those properties identified on Exhibit "A" attached
hereto; and (iii) the use of the Premises is not "Noxious or
Offensive," as hereinafter defined. "Noxious or Offensive" shall
be defined to mean a dance hall, off-track betting business,
billiard or pool hall, bingo parlor, massage parlor, video game
arcade, blood bank, night club, or adult book or adult video
store (which are defined as stores in which any part of the
inventory is not available for sale or rental to children under
eighteen (18) years old, because such inventory explicitly deals
with or depicts human sexuality).
No assignment or subletting shall operate to release Tenant
from its obligations under the Lease unless Tenant is
specifically released by virtue of a separate written instrument
executed by Landlord, which may be withheld in Landlord's sole
discretion.
Landlord's consent is not required for Tenant to assign this
Lease or sublet the Premises to any entity which (i) is Tenant's
parent organization, (ii) is any corporation a majority of whose
voting stock is owned, directly or indirectly, by Tenant or
Tenant's parent organization, (iii) as a result of consolidation,
merger, or other reorganization with Tenant or Tenant's parent
organization, will own all or substantially all of the voting
stock of Tenant or Tenant's parent corporation, or (iv) acquires
all or substantially all of the voting stock of Tenant or all or
substantially all of the assets of Tenant; provided, however,
that the Premises shall only be used as an Approved Concept (as
defined above), and provided further that such assignee or
sublessee shall execute and deliver to the Landlord a full and
unconditional guaranty of the obligations of Tenant.
(b) In the event of the subletting or assignment of this
Lease, any monetary consideration obtained from an assignee or
transferee (excluding, however, any monetary consideration paid
solely for Tenant's Property, as defined in paragraph 3(a)(i) of
this Lease) upon such subletting or assignment shall be paid to
Landlord. In the event of the subletting or assignment of this
Lease, if Tenant derives funds or rental income greater than what
it is paying to Landlord under this Lease, the Annual Rent
provided for herein shall be increased to that amount received by
Tenant from sublessee or assignee of this Lease. In the event of
the cessation of any such subletting or assignment, Annual Rent
shall return to the amount provided for in the Rent Addendum.
(c) Prior to any assignment allowed hereunder, Tenant shall
deliver to Landlord (i) a copy of the assignment documents
(including copies of any recorded documents), and (ii) the name,
address and telephone number of such assignee and a designated
contact person for such assignee, and (iii) a new insurance
policy and binder complying with the terms of this Lease and
naming such assignee as the tenant of the Premises.
Notwithstanding anything herein to the contrary, in the event of
any assignment of this Lease or subletting of the Premises,
Tenant shall not be released from its obligations under this
Lease unless specifically released by virtue of a separate
written instrument executed by Landlord, which may be withheld in
Landlord's sole discretion.
(d) The Landlord shall have the right without limitation
(subject to paragraph 11 hereof) to sell, convey, transfer or
assign its interest in the Premises or its interest in this
Lease, and upon such conveyance being completed all covenants and
obligations of Landlord under this Lease accruing thereafter
shall cease, but such covenants and obligations shall run with
the land and shall be binding upon the subsequent landlord or
owners of the Premises or of this Lease.
18. SUBORDINATION, NON-DISTURBANCE, ATTORNMENT, ESTOPPEL
CERTIFICATE.
(a) Upon written request of the holder of any mortgage
(which term "mortgage" shall also include deeds of trust) now or
hereafter relating to the Premises, Tenant will subordinate its
rights under this Lease to the lien thereof and to all advances
made or hereafter to be made upon the security thereof, and
Tenant shall execute, acknowledge and deliver an instrument in
the form customarily used by such encumbrance holder to effect
such subordination; provided, however, as a condition of all such
subordinations, the holder of such mortgage shall be first
required to agree with Tenant that, notwithstanding the
foreclosure or other exercise of rights under any such first or
other mortgage, Tenant's possession and occupancy of the Premises
and the improvements and its leasehold estate shall not be
disturbed or interfered with nor shall Tenant's rights and
obligations under this Lease be altered or adversely affected
thereby so long as Tenant is not in default hereunder.
(b) Notwithstanding anything set out in subparagraph (a) above
to the contrary, in the event the holder of any such mortgage
elects to have this Lease be superior to its mortgage, then upon
Tenant's being notified to that effect by such encumbrance
holder, this Lease shall be deemed prior to the lien of said
mortgage, whether this Lease is dated prior or subsequent to the
date of said mortgage, and Tenant shall execute, acknowledge and
deliver an instrument, in the form customarily used by such
encumbrance holder, effecting such priority.
(c) In the event proceedings are brought for the foreclosure of,
or in the event of the exercise of the power of sale under any
mortgage made by Landlord covering the Premises, or in the event
of delivery of a deed in lieu of foreclosure under such a
mortgage Tenant will attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as Landlord
under this Lease, and upon the request of the purchaser, Tenant
shall execute, acknowledge and deliver an instrument, in form and
substance satisfactory to such purchaser, evidencing such
attornment.
(d) Each party agrees, within fourteen (14) days after written
request by the other, to execute, acknowledge and deliver to and
in favor of any proposed mortgagee or purchaser of the Premises,
an estoppel certificate, in the form customarily used by such
proposed mortgagee or purchaser, stating, among other things (i)
whether his Lease is in full force and effect, (ii) whether this
Lease has been modified or amended and, if so, identifying and
describing any such modification or amendment, (iii) the date to
which Rent and other charges have been paid, and (iv) whether the
party furnishing such certificate knows of any default on the
part of the other party or has any claim against such party and,
if so, specifying the nature of such default or claim.
(e) Upon written demand by the holder of any mortgage covering
the Premises, Tenant shall forthwith execute, acknowledge and
deliver an agreement in favor of and in the form customarily used
by such encumbrance holder, by the terms of which Tenant will
agree to give prompt written notice to such encumbrance holder in
the event of any casualty damage to the Premises or in the event
of any default on the part of Landlord under this Lease, and will
agree to allow such encumbrance holder a reasonable length of
time after notice to cure or cause the curing of such default
before exercising Tenant's rights under this Lease, or
terminating or declaring a default under this Lease.
19. COOPERATION
(a) Landlord shall fully cooperate with Tenant throughout the
term of this Lease to secure or maintain proper zoning, building and
other permits and compliance with all applicable laws. Landlord shall
execute any petitions, requests, applications and the like as Tenant
shall reasonably request in order to obtain any permit, license,
variances and approvals which, in the reasonable judgment of
Tenant, are necessary for the lawful construction and/or
operation of Tenant's business on the Premises, provided,
however, that Tenant shall indemnify and save Landlord harmless
from any and all expenses, costs, charges, liabilities, losses,
obligations, damages and claims of any type which may be imposed
upon, asserted against or incurred by Landlord by reason of same.
(b) In the event that Tenant elects to purchase the Premises
pursuant to the terms and conditions of paragraph 11 hereof,
Landlord shall have the right, in Landlord's sole discretion, to
enter into an exchange agreement (the "Exchange Agreement") with
a qualified intermediary (the "Intermediary") in order to
effectuate a like-kind exchange of the Premises for one or more
other properties (the "Replacement Property"). In that event,
Landlord shall assign to the Intermediary all of Landlord's
right, title and interest in the written contract for purchase
and sale of the Premises entered into between Landlord and Tenant
as required by paragraph 11 hereof (the "Purchase Contract"), and
any deposit paid by Tenant in connection with the purchase of the
Premises shall be placed directly with the Intermediary, subject
to the terms and conditions of the Purchase Contract and the
Exchange Agreement. Landlord and Tenant agree that, at
Landlord's option (provided that Tenant shall incur no expense
and that there shall be no adverse effect upon the interest in
the Premises being purchased by Tenant), Tenant shall cooperate
with Landlord in effecting a like-kind exchange of the Premises
by Landlord pursuant to and in accordance with the provisions of
Section 1031 of the Internal Revenue Code of 1986, as amended,
and the Treasury Regulations promulgated thereunder, which
cooperation shall include, without limitation, Tenant's consent
to Landlord's assignment of its interest in the Purchase Contract
to the Intermediary and Tenant receiving or taking title to the
Premises from the Intermediary or another third party utilized in
the transaction in order to facilitate the like-kind exchange on
behalf of Landlord.
20. NOTICES
All notices and other communications required or permitted
to be given hereunder shall be in writing and shall be delivered
by a nationally recognized overnight courier or mailed by
registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
If to Landlord:
CNL APF PARTNERS, LP / CNL-BB Corp.
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
with copy to:
Xxxx X. Xxxxxx, Esquire
Lowndes, Drosdick, Doster, Kantor, & Xxxx, P.A.
000 Xxxxx Xxxx Xxxxx
Post Office Box 2809
Xxxxxxx, Xxxxxxx 00000
If to Tenant:
Xxxx Xxxxxxxx
VICORP RESTAURANTS, INC., a Colorado corporation
000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Any party may change its address for notices by written
notice in like manner as provided in this paragraph and such
change of address shall be effective seven (7) days after the
date notice of such change of address is given. Notice for
purposes of this Lease shall be deemed given at the date or time
of receipt or attempted delivery, as indicated on the return
receipt or the courier's records.
21. INDEMNIFICATION
Tenant does hereby indemnify and exonerate Landlord against
and from all liabilities, losses, obligations, damages,
penalties, claims, costs, charges and expenses, including
reasonable architects' and attorneys' fees, which may be imposed
upon or asserted against or incurred by Landlord by reason of any
of the following occurring:
(a) any work or thing done in respect of construction of,
in or to the Premises or any part of the improvements now or
hereafter constructed on the Premises;
(b) any use, possession, occupation, operation, maintenance or
management of the Premises or any part hereof;
(c) any failure to, or to properly, use, possess, occupy,
operate, maintain or manage the Premises or any part thereof;
(d) the condition, including environmental conditions, of the
Premises or any part thereof;
(e) any negligence on the part of Tenant or any of its
agents, contractors, servants, employees, licensees or
invitees;
(f) any accident, injury or damage to any person or
property occurring in, on or about the Premises or any part
thereof including any sidewalk adjacent thereto; or
(g) any failure on the part of Tenant to perform or comply
with any of the covenants, agreements, terms or conditions
contained in this Lease on its part to be performed or
complied with.
22. HOLD HARMLESS
Tenant agrees to hold Landlord harmless against any and all
claims, damages, accidents and injuries to persons or property
caused by or resulting from or in connection with anything in or
pertaining to or upon the Premises during the term of this Lease
or while Tenant is occupying the Premises, except if such claim,
damage, accident or injury shall be caused by the negligence of
Landlord or its agents. Landlord shall not be liable to Tenant,
Tenant's employees, agents, invitees, licensees or any other
person whomsoever for any injury to person or damage to property
on or about the Premises caused by the negligence or misconduct
of Tenant, its agents, servants or employees or of any other
person entering the building under expressed or implied
invitation by Tenant or due to any other cause whatsoever, unless
caused by the negligence or neglect of Landlord, its employees or
its authorized representatives.
23. LANDLORD'S LIABILITIES
The term "Landlord" as used in this Lease means the owner
from time to time of the Premises. Neither Landlord nor any
partner, shareholder or beneficiary thereof shall have any
personal liability with respect to any of the provisions of this
Lease and if Landlord is in default with respect to its
obligations hereunder Tenant shall look solely to the equity of
Landlord in the Premises.
24. SUCCESSORS
The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant
and their respective heirs, legal representatives, successors and
assigns.
25. ENTIRE AGREEMENT/MEMORANDUM OF LEASE
This Lease contains the entire agreement between the parties
hereto and may not be modified in any manner other than in
writing signed by the parties hereto or their successors in
interest. A memorandum of this Lease shall be executed by the
parties and shall be recorded in the official records of the
county where the Premises are located.
26. GENDER
Whenever the context hereof permits or requires, words in
the singular may be regarded as in the plural and vice-versa, and
personal pronouns may be read as masculine, feminine and neuter.
27. BROKERAGE FEES
It is understood and agreed that neither party has incurred
any real estate brokerage fees or commissions arising out of this
Lease and each party agrees to hold the other harmless from and
against all such fees and commissions incurred, and costs related
thereto including legal fees, as a result of its own conduct or
alleged conduct.
28. CAPTIONS
The captions of this Lease are for convenience only, and do
not in any way define, limit, disclose, or amplify terms or
provisions of this Lease or the scope or intent thereof.
29. LANDLORD'S RIGHT TO CURE
In the event Tenant shall fail, refuse or neglect to
perform, observe or comply with any term, condition, covenant,
agreement or obligation contained in the Lease on its part to be
performed or complied with, then Landlord may, at its sole
option, after expiration of any applicable notice and cure period
(except in case of an emergency) enter upon the Premises, if
deemed necessary by Landlord in its reasonable discretion, and/or
do whatever may be deemed necessary by Landlord in its reasonable
discretion to cure such failure by Tenant. Tenant shall pay to
Landlord within five (5) days of Landlord's request, all costs
incurred by Landlord in connection with Landlord's curing of such
failure by Tenant including, but not limited to, reasonable
attorney and paralegal fees whether or not judicial proceedings
are involved. In addition to the above costs, in the event
Landlord does not receive payment from Tenant when due hereunder,
interest at the rate of eighteen percent (18%) per annum or, if
less, the highest rate allowable by law shall be due and payable
with respect to such payment from the due date thereof until
Landlord receives such payment.
30. COMMITMENT LETTER
[INTENTIONALLY DELETED]
31. NOT A SECURITY ARRANGEMENT
The parties hereto agree and acknowledge that this
transaction is not intended as a security arrangement or
financing secured by real property, but shall be construed for
all purposes as a true lease.
32. NET LEASE
It is the intention of the parties hereto that this Lease is
and shall be treated as a triple net lease. Any present or
future law to the contrary notwithstanding, this Lease shall not
terminate (except as expressly provided in paragraph 4(a)) nor
shall Tenant be entitled to any abatement, suspension, deferment,
reduction (except as expressly provided in paragraph 6(b)
hereof), set-off, counterclaim, or defense with respect to the
rent, nor shall the obligations of Tenant hereunder be affected
by reason of: any damage to or destruction of the Premises or
any part thereof; any taking of any Premises or any part thereof
or interest therein by Condemnation or otherwise (except as
expressly provided in paragraph 6(b) hereof); any prohibition,
limitation, restriction or prevention of Tenant's use, occupancy
or enjoyment of the Premises or any part thereof (except to the
extent caused solely by the intentional wrongful conduct of
Landlord), or any interference with such use, occupancy or
enjoyment by any person or for any other reason; any title defect
or encumbrance or any matter affecting title to the Premises or
any part thereof; any eviction by paramount title or otherwise;
any default by Landlord hereunder; any proceeding relating to
Landlord; the impossibility or illegality of performance by
Landlord, Tenant or both; any action of governmental authority;
any breach of warranty or misrepresentation; any defect in the
condition, quality or fitness for use of the Premises or any part
thereof; or any other cause whether similar or dissimilar to the
foregoing and whether or not Tenant shall have notice or
knowledge of any of the foregoing. The parties intend that the
obligations of Tenant hereunder shall be separate and independent
covenants and agreements and shall continue unaffected unless
such obligations shall have been modified or terminated in
accordance with an express provision of this Lease.
33. WAIVER
No waiver by Landlord of any provision hereof shall be
deemed a wavier of any other provision hereof or of any
subsequent breach by Tenant of the same or any other provision.
Landlord's consent to, or approval of, any act shall not be
deemed to render unnecessary the obtaining of Landlord's consent
to or approval of any subsequent act by Tenant. The acceptance
of rent hereunder by Landlord shall not be a waiver of any
preceding breach by Tenant of any provision hereof, other than
the failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rent.
34. TIME OF THE ESSENCE
Landlord and Tenant agree that time shall be of the essence
of all terms and provisions of this Lease.
35. GOVERNING LAW
This Lease shall be construed in accordance with the laws of
the state in which the Premises is located.
[Signatures on Next Page]
IN WITNESS WHEREOF, Seller and Buyer have entered into this
Agreement as of the date shown hereinabove.
Signed, sealed and delivered "TENANT"
in the presence of:
VICORP RESTAURANTS, INC., a
Colorado corporation
By: /s/Xxxxxxx X. Xxxxxxxxxxxx
--------------------------
Name: /s/ Xxxxxxx Xxxxxxxx Xx. Name: Xxxxxxx X. Xxxxxxxxxxxx
------------------------- -----------------------
Xxxxxxx Xxxxxxxx, Xx. As Its: President
---------
Name: /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
STATE OF COLORADO
COUNTY OF DENVER
The foregoing instrument was acknowledged before me this
25th day of October 1999, by Xxxxxxx X. Xxxxxxxxxxxx, as
President of VICORP RESTAURANTS, INC., a Colorado corporation, on
behalf of the corporation.
/s/ Xxxx X. Xxxxxxxxxxx
-----------------------
(NOTARY SEAL) Notary Public, State of Colorado
Printed Name: Xxxx X. Xxxxxxxxxxx
-------------------
Notary Commission No. n/a
---
My Commission Expires: 8/25/2002
---------
Exhibit "A" - Legal Description
Exhibit "B" - List of Properties for Cross-Default
"LANDLORD"
CNL APF PARTNERS, LP, a
Delaware limited partnership
BY: CNL APF GP Corp., a
Delaware corporation, as general partner
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: /s/ Xxxx X. Xxxxxx Xxxx X. Xxxxxx, as President
-------------------
Xxxx X. Xxxxxx
Name: /s/ Xxxxxxxxx X. Xxxxxx
------------------------
Xxxxxxxxx X. Xxxxxx
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 25
day of October, 1999, by Xxxx X. Xxxxxx, as President of CNL APF
GP CORP., a Delaware corporation, as General Partner of CNL APF
PARTNERS, LP, a Delaware limited partnership, on behalf of the
limited partnership.
/s/ Xxx Xxxxxxx
---------------
(NOTARY SEAL) Notary Public, State of Florida
Printed Name:
Notary Commission No.
My Commission Expires:
"LANDLORD"
CNL-BB CORP., a Florida corporation
By: /s/ Xxxxxx X.Xxxxxx
Name: /s/ Xxxx X. Xxxxxx --------------------
------------------- Xxxxxx X. Xxxxxx, as
Xxxx X. Xxxxxx President
Name: /s/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me
this 26th day of October 1999, by Xxxxxx X. Xxxxxx, as
President of CNL-BB CORP., a Florida corporation, on behalf
of the corporation.
/s/ Xxxxxxxxx X. Xxxxxx
-----------------------
(NOTARY SEAL) Notary Public, State of Florida
Printed Name:
Notary Commission No.
My Commission Expires:
EXHIBIT "A"
Property Description
--------------------
Landlord Landlord
---------------- ----------------
CNL APF Partners, L.P. CNL-BB Corp.
---------------------- ------------
0000 Xxxx 000xx Xxxxxx 0000 Xxx Xxxxx Xxxx
Xxxxx, XX 00000 Xxxxxxx Xxxxx, XX 00000
0000 Xxxx 00xx Xxxxxx 00000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
0000 Xxxxxxxxxx Xxxxx Xxxxxxxxx 000 Xxxxx XxXxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000 XxXxxxxx, XX 00000
000 Xxxxxxxx Xxxx 0000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
0000 Xxxxx Xxxx 0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxx, XX 00000
0000 Xxxxxxx Xxxx Xxxxx 000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
0000 - 000xx Xxxxxx 000 Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
0000 Xxxx Xxxx Xxxxxx
Xx. Xxxxxxx, XX 00000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
0000 Xxxxxxxxxxx Xxxxxx
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00000 Xxxxxxxxx Xxxxxxxx
Xxxx Xxxxxx, XX 00000
0000 Xxxxxxx Xxxxxx
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0000 "X" Xxxxxx
Xxxxx, XX 00000
RENT ADDENDUM
TO LEASE AGREEMENT
THIS RENT ADDENDUM dated October 28, 1999, by and
between CNL-PARTNERS, a Delaware limited partnership and
CNL-BB CORP., A Florida corporation as
"Landlord", and VICORP RESTAURANTS, a Colorado corporation,
as "Tenant", for properties described on Exhibit "A", is
attached to and made a part of that certain Lease Agreement
by and between Landlord and Tenant of even date herewith
(the "Lease"). Notwithstanding any other provision to the
contrary which maybe contained in said Lease, it is
specifically agreed by and between Landlord and Tenant as
follows:
(a) Commencement of Rent. On the date thereof,
Landlord has simultaneously entered into the Lease with
Tenant pursuant to which Tenant has agreed to lease from
Landlord the Premises and all improvements now for
thereafter constructed thereon. Payment of Interim Rent
(if applicable), and Annual Rent shall commence as of the
Effective Date as provided herein, notwithstanding that the
improvements may not be constructed or complete at that
time.
(b) Interim Rent
[INTENTIONALLY DELETED]
(c) Annual Rent
(i) Beginning on the Effective Date, Tenant covenants and
agrees to pay to Landlord annual rent ("Annual Rent") in the annual amount
$2,865,615 for all locations, payable to Landlord in equal
monthly installments in the amount $238,801 for all
locations monthly in advance, on the first (1st) day of each month
(ii) Increases in Annual Rent.
Commencing at the end of the fifth (5th) Lease
Year after the Effective Date, and on each fifth (5th)
anniversary of such date thereafter during the term of this
Lease (and any extension thereof), Annual Rent shall be
increased by an amount equal to ten percent (10%) of the
Annual Rent payable during the immediately preceding Lease
Year.
(iii) Partial Months. If the date on which
Annual Rent shall be first due and payable shall fall on any
other than the first day of a calendar month, then rent for
the partial rental month shall be prorated on a per diem basis
on the first annual Rent payment and shall be paid by Tenant
to Landlord for such month.
(c) Percentage Rent
[INTENTIONALLY DELETED]
(d) Reporting. Tenant shall, during the term of this
Lease and any extensions thereto: keep books and records
reflecting its financial condition including, but not
limited to, the operation of the Premises in accordance with
generally accepted accounting principles consistently
applied. Tenant shall provide Landlord with unaudited year
end financial statements including operating statements and
balance sheets and Form 10 K's and Form 10Q's within ten
(10) days after they are generated for Tenant. Landlord
shall have the right, at its sole cost and expense, from
time to time during normal business hours and at times
reasonably convenient to Tenant, to examine such books,
records and accounts at the offices of Tenant or other
entity as is maintaining such books, records and accounts,
and to make such copies or extracts thereof as Landlord
shall desire.
(e) Sales/Use Tax. Tenant shall also pay to Landlord
any sales and use tax imposed on any Rents payable hereunder
from time to time by state law or any other governmental
entity, which sums are due monthly as to monthly rent
payments on the due date of the rent payment under this
Lease.
(f) Late Charges. In the event any installment of rent
due hereunder (including Interim Rent and Annual Rent) is
not received by Landlord within ten (10) days of its
respective due date, there shall be an automatic late charge
due to Landlord from Tenant in the amount of five percent
(5%) of such delinquent installment of rent. All such late
charges due hereunder shall be deemed additional Rent, and
are not penalties but rather are charges attributable to
administrative and collection costs arising out of such
delinquency. In addition to such late charge, in the event
Landlord does not receive Rent within ten (10) days after
the due date, interest shall be due at the lesser of
eighteen percent (18%) per annum or the maximum rate
allowable by law with respect to such payment from the due
date thereof until Landlord receives such payment.
(g) Payments of Rents. Except as provided in the
following sentence, all rent payments shall be made by check
payable to the order of Landlord and shall be sent to 000
Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000,xx to
such other place or places Landlord or its successors or
assigns, respectively, may from time to time designate in
writing. In the event Tenant is late in the payment of
Interim or Annual Rent on three (3) or more occasions, and
if Landlord shall so request, Tenant shall establish
arrangements whereby Rent is transferred by wire or other
means directly from Tenant's bank account to such account as
Landlord may designate.
(h) No Abatement. Unless otherwise stated in the
Lease, no abatement, offset, diminution or reduction (a) of
Rent, charges or other compensation, or (b) of Tenant's other
obligations under this Lease shall be allowed to Tenant or
any person claiming under Tenant, under any circumstances or
for any reason whatsoever.
Initialed for Identification:
By Landlord: /s/ Xxxx X. Xxxxxx, /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
By Tenant: /s/ Xxxxxxx X. Xxxxxxxxxxxx
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