EXHIBIT 10.48
TENANT'S ACKNOWLEDGMENT WITH INDEMNIFICATION
__________, ___________
The undersigned, _________________, a _________ corporation ("Tenant") and
_____________________________ (collectively, "Tenant's Principals), for good
and valuable consideration, the sufficiency of which is hereby acknowledged,
including the agreement by XXXXXXXXXX'S REAL ESTATE, INC. ("Landlord") to
enter into a lease agreement with Tenant covering the real property (the
"Property") described in Exhibit "A" attached hereto and incorporated herein
by reference (the "Lease"), and the agreement by XXXXXXXXXX'S, INC., a Texas
corporation ("Guarantor") to enter into that certain guaranty of the Lease
Agreement, a copy of which is attached hereto as Exhibit "B" and incorporated
herein by reference (the "Guaranty"), hereby acknowledges and agrees with
Xxxxxxxxx and Landlord as follows:
1. Tenant and Xxxxxx's Principals have reviewed carefully and
understand the provisions of the Guaranty.
2. Tenant hereby agrees that if Guarantor makes any payment on behalf
of Tenant under the Guaranty, then the following shall apply: (i) Tenant
shall, upon demand by Guarantor, immediately relinquish to Guarantor (or to
any subtenant or assignee Guarantor may have found) its right to possession
of the Property; provided, however, Tenant shall not be released from any of
its obligations and liabilities under the Lease; (ii) Tenant shall allow
Guarantor to either operate out of the Property or to sublease the Property
or assign Tenant's rights under the Lease to a third party (who may be, but
is not required to be, a Schlotzsky's franchisee), Tenant hereby agreeing
that its signature is not necessary to effectuate any such sublease or
assignment; (iii) Tenant agrees that Guarantor may terminate Tenant's rights
under the franchise agreement between Tenant and Guarantor covering the
operations out of the Property without compensation to Tenant as franchisee;
(iv) Tenant shall, upon demand by Guarantor, immediately transfer to
Guarantor subject to any debt to third parties, all ownership rights to any
and all furniture, fixtures and equipment installed or located in the
Property and owned by Tenant without any compensation to Tenant.
3. Guarantor and Landlord may from time to time amend the provisions of
the Guaranty, including increasing or decreasing the term or any guaranty
maximum, without the joinder of the Tenant and any such amendment shall not
in any manner affect any obligations of Tenant and Xxxxxx's Principals under
this Agreement.
4. Tenant and Xxxxxx's Principals each acknowledge that it or they are
not a beneficiary of any term or provision of the Guaranty and may not
enforce any provision thereof against Landlord or Guarantor. Tenant and
Xxxxxx's Principals further acknowledge that the full guaranty of the Lease
by Xxxxxx's Principals shall have no effect on the obligations of Tenant and
Tenant's Principals under Paragraph 5 below.
5. Tenant and Xxxxxx's Principals, jointly and severally, each hereby
agree to defend, indemnify and hold Guarantor harmless from and against any
and all claims, demands, liabilities and expenses (including reasonable
attorneys' fees) incurred by, asserted against or suffered by Guarantor
arising, directly or indirectly, from the execution and delivery of the
Guaranty (as may be modified pursuant to Paragraph 3 above) or from the
enforcement thereof. Should Guarantor bring suit against Tenant or Xxxxxx's
Principals concerning matters arising out of this paragraph, Guarantor shall
be entitled to recover from the other party court costs and reasonable
attorneys' fees and expenses incurred in connection with such suit.
6. Tenant acknowledges that the Lease requires that at all times during
the term of the Lease, Tenant must have no less than $________ in equity
invested in the Property ("Tenant's Minimum Equity"). Tenant shall not be
permitted to obtain any kind of financing or refinancing on the Property
which would exceed $_________ without the prior written consent of Guarantor.
Tenant hereby authorizes Landlord to communicate with and receive
information from any lender of Tenant loaning money in connection with the
Property.
7. Tenant agrees to secure its obligations under this Tenant's
Acknowledgment with Indemnification by executing a Deed to Secure Debt or
Leasehold Deed of Trust covering all of Tenant's interest as Tenant or lessee
in and to the leasehold estate in the Property. Landlord hereby consents to
the execution, delivery and recordation of such deed to secure debt and the
enforcement (if needed) thereof.
8. If any provision hereof shall be unenforceable or void for any
reason, the remaining provisions of this instrument shall be enforceable to
the greatest extent permissible under applicable law.
9. This instrument shall be construed in accordance with the laws of
the State of Texas.
10. This instrument may be executed in any number of counterparts with
the same effect as if all parties hereto had signed the same document. All
such counterparts shall be construed together and shall constitute one
instrument, but in making proof hereof it shall only be necessary to produce
one such counterpart.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of the
effective date of the Guaranty.
TENANT:
_____________ , a _______________ corporation
By:
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Name:
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Title:
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Date:
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TENANT'S PRINCIPALS:
By:
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Name:
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Title:
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Date:
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By:
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Name:
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Title:
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Date:
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LANDLORD:
XXXXXXXXXX'S REAL ESTATE, INC.,
a Texas corporation
By:
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Name:
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Title:
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Date:
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GUARANTOR:
XXXXXXXXXX'S INC., a Texas corporation
By:
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Name:
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Title:
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Date:
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