EXHIBIT 10.63
AGREEMENT
This Agreement is entered into between Big Buck Brewery & Steakhouse,
Inc. ("Big Buck") and Opry Xxxxx Limited Partnership ("Opry Xxxxx") on this
14th day of March, 2002.
WHEREAS, on November 9, 2000, Big Buck and Opry Xxxxx entered into a
commercial lease (the "Lease") for 20,046 square feet of space in a one-level
building in Opry Xxxxx (the "Demised Premises").
WHEREAS, disputes have arisen between the parties which resulted in the
initiation of litigation by Opry Xxxxx against Big Buck, including not only a
Complaint filed in Davidson County Chancery Court (the "Complaint"), but an
unlawful detainer warrant in Davidson County General Sessions Court (the
"Eviction Action"), which seeks both a monetary judgment for unpaid rent and
that legal possession of the Demised Premises be returned to Opry Xxxxx. The
Complaint and Eviction Action were both removed by Big Buck to Federal Court,
and the consolidated action is now styled OPRY XXXXX LIMITED PARTNERSHIP V.
BIG BUCK BREWERY & STEAKHOUSE, INC., United States Federal Court, Middle
District of Tennessee, Case No. 3:01-1417 (collectively the "Litigation").
WHEREAS, that portion of the Litigation concerning the Eviction Action
in which Opry Xxxxx seeks legal possession of the Demised Premises has been set
for trial on April 23, 2002 (the "Possession Trial").
WHEREAS, while the parties are still discussing a full and complete
resolution of all of the issues raised in the Litigation, including a payment by
Big Buck to Opry Xxxxx for a termination of the Lease and dismissal of the
Litigation with prejudice, the parties wish to reach an agreement, while
reserving all rights, with regard to Opry Xxxxx obtaining formal legal
possession of the Demised Premises, and thus avoiding the necessity of the
Possession Trial.
Now, therefore, for valuable consideration the parties agree as follows:
1. Big Buck hereby agrees to grant to Opry Xxxxx formal legal possession
of the Demised Premises as described in the Lease (the "Grant"). The parties
agree that the Demised Premises will be turned over to Opry Xxxxx in an "as is"
condition.
2. The parties agree that the Grant is solely for the purposes of
allowing Opry Xxxxx to: (a) mitigate some of the damages claimed against Big
Buck; (b) attempt to re-lease the Demised Premises on behalf of Big Buck; (c) if
necessary, to make necessary improvements to the Demised Premises; and (d) avoid
the Possession Trial.
3. Big Buck agrees that the Grant, any attempts by Opry Xxxxx to
re-lease the Demised Premises, make any necessary improvements to the Demised
Premises, and the resolution of the Possession Trial does not in any manner or
way constitute a formal termination of the Lease.
4. Big Buck agrees that the Grant, any attempts by Opry Xxxxx to
re-lease the Demised Premises, make any necessary improvements to the Demised
Premises, and the resolution of the Possession Trial does not in any manner
or way waive, effect or impact any right or claim that: (a) Big Buck's
monetary obligations under the Lease remain in full force and effect and all
rent and charges payable under the Lease continue to accrue; and (b) Big
Buck's
obligations to pay for any work or materials for the Demised Premises,
including an obligation to indemnify and defend Opry Xxxxx from any and all
claims or actions taken by any unpaid supplier, contractor or laborers which
can trace their contracts through to Big Buck or its general contractor;
5. Opry Xxxxx agrees that the Grant does not in any manner or way waive,
effect or impact any claim or defense which Big Buck may have that Opry Xxxxx,
after it has obtained possession of the Demised Premises, failed to use
reasonable efforts to mitigate to re-let the Demised Premises, failed to use
reasonable efforts to mitigate to re-let the Demised Premises. Opry Xxxxx does
not waive any argument it has that under the terms of the Lease
(Section 15.2 (c)) any failure to re-let the Demised Premises shall not affect
Big Buck's liability.
6. The parties agree that entering into this Agreement has created no
independent claim or cause of action, and does not constitute any admission of
liability.
7. Upon the execution of this Agreement, Opry Xxxxx will submit to the
Court a Notice that the portion of the Eviction Action in which Opry Xxxxx seeks
legal possession of the Demised Premises has been resolved by agreement, thus
avoiding the necessity of the Possession Trial. However, this Notice does not,
as set out in paragraph 4 above, waive any right or claim of Opry Xxxxx to Big
Buck's past monetary obligations under the Lease, including all rent, charges
and attorneys fees payable under the Lease.
8. Notwithstanding the Grant, the parties hereby expressly reserve any
and all rights, claims or actions they have as it pertains to the Lease and the
Litigation.
OPRY XXXXX LIMITED PARTNERSHIP
By: Opry Xxxxx, L.L.C.
Its General Partner
By: The Xxxxx Limited Partnership
Its Manager
By: The Xxxxx Corporation
Its General Partner
By: /s/ Xxxx Xxxxx
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BIG BUCK BREWERY & STEAKHOUSE,
INC.:
/s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
