RESTAURANT LEASE
TRANCHE C
U. S. RESTAURANT PROPERTIES OPERATING L. P.
("Landlord")
and
SYBRA, INC.
("Tenant")
RESTAURANT LEASE
SYBRA, INC.
TRANCHE C
THIS LEASE (the "Lease") is made and entered into this ________ day of
___, 1997, by and between U. S. RESTAURANT PROPERTIES OPERATING L. P., a
Delaware limited partnership (hereinafter called "Landlord"), and SYBRA, INC., a
Michigan corporation (hereinafter called "Tenant"). For and in consideration of
the rental and of the covenants and agreements hereinafter set forth to be kept
and performed by Tenant, Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord, the Building or Buildings and the Premises as defined
below, for the term and at the rental amount, and subject to and upon all of the
terms, covenants, and agreements hereinafter set forth.
1.0 DEFINITIONS
-----------
1.1 Building and Buildings. The word "Building or "Buildings" as used
in this Lease shall mean the forty (40) one-story restaurant buildings located
on the sites more particularly described on Exhibit A.
1.2 Personal Property. The furniture, fixtures and equipment owned by
Landlord and used by Tenant at the Premises, more particularly described on
Exhibit B.
1.3 Premises. The word "Premises" as used in this Lease shall mean the
fee or leasehold interest in the underlying ground and driveways and parking
areas outside of each Building as shown on Exhibit A.
1.4 Leased Property. The word "Leased Property" as used in this Lease
shall mean collectively, the Buildings, the Premises and the Personal Property
with respect to each Building.
1.5 Equipment. The word "Equipment" as used in this Lease shall mean
collectively, the furniture, fixtures and equipment owned by Tenant and located
in any Building or on any Premises, including, but not limited to, kitchen
equipment, signage, canopies, menus, seating, counter tops and refrigeration
equipment.
1.6 Operations. Intentionally deleted.
1.7 Taxes. The real property taxes and personal property taxes
applicable to the Leased Property and restaurant operations pursuant to Sections
5.2 and 5.3.
1.8 Franchise Agreement. The Franchise Agreement between Tenant and
Arby's Inc. d/b/a Triarc Restaurant Group, a Delaware corporation, dated
_____________________________, with respect to the restaurant operations at each
Building. The Franchise Agreements are attached hereto as Exhibit G.
1.9 Purchase Price. The purchase price for the Buildings shall be
$18,128,100.00. The Purchase Price shall be allocated to individual Buildings in
accordance with Exhibit C hereto.
1.10 Rent Reduction Amount. The product of (i) total Base Rent payable
hereunder prior to such reduction multiplied by (ii) the ratio of (A) the
portion of the Purchase Price allocated to the Building pursuant to Exhibit C
with respect to which the Rent Reduction Amount is calculated, divided by (B)
the Purchase Price.
2.0 TERM
----
2.1 The Term of this Lease shall be for a period of twenty (20) years,
commencing on the 30th day of April, 1997 (the "Rent Commencement Date") and
ending on the 30th day of April, 2017. A "Lease Year" shall commence on the Rent
Commencement Date and end 12 months thereafter.
2.2 Option to Renew Lease. Tenant shall have the option to renew the
Lease for three (3) renewal terms, with the first renewal term being for a ten
(10) year period and the next two (2) renewal terms being for periods of five
(5) years each, on the same terms and conditions as herein set forth. Tenant
shall exercise each renewal option by delivery of written notice of exercise of
such option to Landlord on or before the date six (6) months preceding the
scheduled termination date of the Lease or the current renewal period as the
case may be. If Tenant fails to exercise any renewal option, Tenant's right to
exercise any further renewal options will expire.
2.3 Acknowledgment of Commencement Date. In the event the commencement
date of the term of this Lease is other than provided for in Section 2.1, then
the Landlord and Tenant shall execute a written acknowledgment of commencement
and shall attach it hereto as Exhibit D.
3.0 RENT.
-----
Tenant shall pay to Landlord as rent for the Leased Property the sums
shown on Exhibit E, payable in advance, without deduction, offset, prior notice
or demand, in lawful monies of the United States of America.
4.0 FINANCIAL COVENANTS AND STATEMENTS.
-----------------------------------
4.1 Liquidity. Tenant represents and warrants that, as of the Rent
Commencement Date, it shall have Unencumbered Liquidity of at least
$2,750,000.00. For purposes hereof, Unencumbered Liquidity shall mean, as of the
Rent Commencement Date, the sum of (i) 75% of the cash and cash equivalents of
Tenant, plus (ii) 100% of the cash and cash equivalents of ICH Corporation
which, in either case, are not collaterally assigned in connection with any loan
in which such cash or cash equivalent represents substantially all of the
collateral for such loan. Tenant shall deliver a certificate to Landlord as of
the Rent Commencement Date evidencing compliance with this Section, which
certificate is a condition precedent to the effectiveness of this Lease.
4.2 Guaranty. ICH Corporation ("Guarantor") shall irrevocably and
unconditionally guaranty all obligations of Tenant under this Lease, and shall
execute a Guaranty Agreement in the form attached hereto as Exhibit F. If
Guarantor sells fifty-one percent (51.0%) or more of its ownership interest in
Tenant to a party ("Substitute Guarantor") which agrees to execute a guaranty
agreement substantially in the form attached hereto as Exhibit F, Guarantor
shall be released from any further liability with respect to the Guaranty
Agreement provided that (i) there is at such time no default under the Lease
beyond any applicable notice and cure period, and (ii) the Substitute Guarantor
has financial strength and payment
2
ability as of the date of the request for such substitution reasonably
acceptable to Landlord, based on the financial statements of the Substitute
Guarantor in form reasonably acceptable to Landlord.
4.3 Dividend Restriction. Guarantor (or any Substitute Guarantor) shall
not pay any dividends on its capital stock, redeem any capital stock, or engage
in any recapitalization requiring Guarantor to pay dividends or redeem its
capital stock (i) at any time prior to two (2) years after the Rent Commencement
Date, and thereafter (ii) only if, immediately after any such transaction, the
Unencumbered Liquidity is more than $2,750,000.00.
4.4 Financial Statements. During the term of this Lease, including any
renewal terms, Tenant and Guarantor (including any Substitute Guarantor) shall
deliver to Landlord annual financial statements of Tenant and Guarantor,
prepared in accordance with generally accepted accounting principles, certified
by the chief executive officer or chief financial officer of Tenant within
ninety (90) days following the close of such year. If Tenant or Guarantor has
audited financial statements available, it shall deliver such audited financial
statements to Landlord. Additionally, Tenant shall prepare and deliver to
Landlord monthly sales reports separately identifying the gross sales from each
Building subject to this Lease.
5.0 TAXES.
------
5.1 Payment of Taxes. Tenant shall pay, as additional rent hereunder,
all real property taxes applicable to the Leased Property during the term of the
Lease. Payment of taxes shall be made directly to the taxing authority prior to
the due date for such taxes (provided Tenant receives a copy of the tax xxxx at
least thirty (30) days prior to the due date), with a copy to Landlord of the
remittance within five (5) days after payment by Tenant. In the event such real
property taxes required to be paid by Tenant cover any period of time before or
after expiration of the term of this Lease, Tenant's share of such taxes shall
be equitably prorated to cover only the period of time within the fiscal tax
year during which this Lease is in effect. Landlord shall forward copies of all
tax bills within fifteen (15) days after Landlord's receipt thereof.
5.2 Definition of "Real Property Taxes". As used herein, the term "real
property tax" shall include any form of assessment, license fee, rent tax, sales
tax on rental receipts, levy, or tax imposed by any authority having the direct
or indirect power to tax, including any city, county, state, or federal
government, or any school, agricultural, lighting, drainage, or other
improvement district thereof, as against any legal or equitable interest of
Landlord in any Leased Property or in the real property of which any Premises is
a part, as against Landlord's right to rent or other income therefrom.
5.3 Personal Property Tax.
(a) Tenant shall pay prior to delinquency all taxes assessed
against and levied upon leasehold improvements, fixtures, furnishings, Personal
Property and Equipment.
(b) If any Equipment shall be assessed with Landlord's real
property, Tenant shall pay to Landlord the taxes attributable to such Equipment
within ten (10) days after receipt of a written statement setting forth the
taxes applicable to the Equipment.
5.4 If Tenant should fail to pay any taxes, assessments or governmental
charges required to be paid by it hereunder, in addition to any other remedies
provided herein, Landlord may, in its sole discretion, after ten (10) days'
prior written notice to Tenant, pay such taxes, assessments and governmental
charges.
3
Any sums so paid by Landlord shall be deemed to be additional rental owing by
Tenant to Landlord and due and payable upon demand as additional rent with
interest at the rate of twelve percent (12.00%) from the date of the payment by
Landlord.
5.5 If at any time during the term of the Lease the present method of
taxation shall be changed so that, in lieu of the whole or any part of any
taxes, assessments, levies or charges levied, assessed or imposed on real estate
and the improvements thereon there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received from Tenant
and/or any assessment, levy or charge measured by or based in whole or in part,
upon such rents, then all such taxes, assessments, levies or charges, or the
part thereof so measured or based, shall be deemed to be included with the term
taxes for the purposes hereof and shall be paid by Tenant.
5.6 Tenant may contest the amount, validity or application of any taxes
by appropriate proceedings diligently conducted in good faith provided that (a)
such proceedings shall suspend the collection thereof, (b) no part of the Leased
Property or of any rent would be subject to loss, sale or forfeiture before
determination of any contest, (c) Landlord would not be subject to any criminal
liability for failure to pay, (d) such proceedings shall not affect the payment
of rent hereunder or prevent Tenant from using any Leased Property for its
intended purposes, and (e) Tenant shall notify Landlord of any such proceedings
at which the amount of contest exceeds $10,000.00 within 20 days after the
commencement thereof, and shall describe such proceedings in reasonable detail.
Tenant will conduct all such contests in good faith and with due diligence and
will, promptly after the determination of such contest, pay and discharge all
amounts which shall be determined to be payable therein. In the event Tenant
elects to dispute and contest any taxes, it shall provide Landlord with a surety
bond in the amount of taxes in dispute.
5.7 Landlord covenants and agrees that if there shall be any refunds or
rebates of the Taxes paid by Tenant, such refunds or rebates shall belong to
Tenant. Any refunds received by Landlord shall be deemed trust funds and as such
are to be received by Landlord in trust and paid to Tenant forthwith. Tenant
will, upon the request of Landlord, sign any receipts which may be necessary to
secure the payment of any such refunds or rebates. The obligations set forth in
this Section 5.7 shall survive any termination of this Lease. Landlord will
cooperate in the execution of any documents Tenant may reasonably request in
connection with such proceedings.
6.0 USE
---
6.1 Use. The Leased Property shall be used and occupied by Tenant as an
Arby's restaurant pursuant to the Franchise Agreement, and may be used for any
other lawful purpose with Landlord's prior written consent, which shall not
unreasonably be withheld or delayed (and which may be conditioned, for
non-restaurant uses, on such use not causing any violation of a loan agreement
or other contractual commitment to which Landlord is a party). Tenant will not
do or permit any act or thing that is contrary to any legal requirement or
insurance requirement, or that impairs the value of any Leased Property or any
part thereof or that materially increases the dangers, or poses unreasonable
risk of harm, to third parties (in, on or off any Leased Property) arising from
activities thereon, or that constitutes a public or private nuisance or waste to
any Leased Property or any part thereof. Tenant shall not conduct any activity
on any Premises or use any Leased Property in any manner (i) which would cause
any Leased Property to become a hazardous waste treatment, storage or disposal
facility within the meaning of, or otherwise bring any Leased Property within
the ambit of, the Resource Confirmation and Recovery Act of 1976, 42 U.S.C. ss.
4
6901, et seq., or any similar state law or local ordinance; (ii) so as to cause
a release or threat of release of hazardous waste from any Leased Property
within the meaning of, or otherwise bring any Leased Property within the ambit
of, the Comprehensive Environmental Response Compensation and Liability Act of
1980, 42 U.S.C. ss. 9601-57, or any similar state law or local ordinance or any
other environmental law; or (iii) so as to cause a discharge of pollutants or
effluents into any water source or system, or the discharge into the air of any
emissions, which would require a permit under the Federal Water Pollution
Control Act, 33 U.S.C. ss. 1251, et seq., or the Clean Air Act, 42 U.S.C. ss.
741, et seq., or any similar state or local ordinance.
6.2 Compliance with the Law. Tenant shall, at Tenant's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders,
and requirements in effect during the term hereof, regulating the use by Tenant
of any Leased Property. Tenant shall not use or permit the use of any Leased
Property in any manner that will tend to create waste or a nuisance, or,
otherwise expose Landlord or any Leased Property to any liability.
6.3 Condition of Leased Property. Tenant hereby accepts all of the
Leased Property in their condition as of the date of the possession hereunder,
subject to all applicable zoning, municipal, county, and state laws, ordinances,
and regulations governing and regulating the use of any Leased Property, and
accepts this Lease subject thereto and to all matters disclosed thereby, and by
any exhibits attached hereto. Tenant acknowledges that neither Landlord nor
Landlord's agent has made any representation or warranty as to the suitability
of any Leased Property for the conduct of the Tenant's business.
6.4 Tenant's Covenants and Indemnity. Tenant shall not dispose of or
otherwise allow the release of any hazardous waste or materials in, on, or under
the Premises, or any adjacent property or in any improvements placed on the
Premises (other than in full compliance with all environmental laws). Tenant
represents and warrants to Landlord that Tenant's intended use of any Leased
Property does not involve the use, production, disposal or bringing onto any
Premises of any hazardous waste or materials. Tenant shall promptly comply with
all statutes, regulations and ordinances, and with all orders, decrees or
judgments of governmental authorities or courts having jurisdiction, relating to
the use, collection, treatment, disposal, storage, control, removal or clean up
of hazardous waste or materials, in, on or under any Leased Property or any
adjacent property, or incorporated in any improvements, at Tenant's expense.
After notice to Tenant and reasonable opportunity for Tenant to effect
such compliance, Landlord may, but is not obligated to, enter upon any Leased
Property and take such actions and incur such costs and expenses to effect such
compliance as it deems advisable to protect its interest in any Leased Property;
provided, however, that Landlord shall not be obligated to give Tenant notice
and an opportunity to effect such compliance if (i) such delay might result in
material adverse harm to Landlord or any Leased Property, (ii) Tenant has
already had actual knowledge of the situation and a reasonable opportunity to
effect such compliance, or (iii) an emergency exists. Whether or not Tenant has
actual knowledge of the release of hazardous waste or materials in, on or under
any Leased Property or any adjacent property as the result of Tenant's use of
any Leased Property, Tenant shall reimburse Landlord for the full amount of all
costs and expenses reasonably incurred by Landlord in connection with such
compliance activities, and such obligation shall continue even after the
termination of this Lease. Tenant shall notify Landlord immediately after Tenant
learns of any release of any hazardous waste or materials in, on or under any
Leased Property.
Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all
5
environmental claims, damages, demands, losses, liens, liabilities, obligations,
fines, penalties, charges, judgments, clean up costs, remedial actions and other
proceedings and costs and expenses (including, without limitation, attorneys'
fees and disbursements) which may be imposed on, incurred or paid by, or
asserted against Landlord or any Leased Property by reason of, or in connection
with (i) any misrepresentation or breach of warranty by Tenant, or (ii) the acts
or omissions of Tenant, or any sublessee or other person for whom Tenant would
otherwise be liable, resulting in the release of any hazardous waste or
materials, or (iii) arising directly or indirectly from or out of or in any way
connected to Tenant's use, storage, ownership, possession, or control of
hazardous substances in, on or under any Leased Property which directly or
indirectly result in the Leased Property or any other property becoming
contaminated with hazardous substances. Tenant hereby agrees upon notification
to clean up from any Leased Property or any other property any contamination
caused by its activity, including, without limitation, use, storage, ownership,
possession or control of hazardous substances in, on or under any Leased
Property, including, without limitations, any remedial action required by
applicable governmental authorities. Tenant further acknowledges that it will be
solely responsible for all costs and expenses relating to the clean up of
hazardous substances from any Leased Property or any other properties which
become contaminated with hazardous substances as a result of Tenant's activities
in, on or under any Leased Property.
The term "hazardous substances" and "hazardous waste or materials"
shall mean: Any substance or material defined or designated as a hazardous or
toxic waste, hazardous or toxic material, a dangerous, hazardous, toxic, or
radioactive substance, or other similar term, by any federal, state, or local
environmental statute, regulation, or ordinance presently in effect or that may
be promulgated in the future, as such statutes, regulations, and ordinances may
be amended from time to time including, but not limited to, the statutes listed
below:
Federal Resource Conservation and Recovery Act of 1976, 42
U.S.C. ss. 6901 et seq.
Federal Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 49 U.S.C. ss. 1801, et seq.
Federal Clean Air Act, 42 U.S.C. ss. 7401-7626.
Federal Water Pollution Control Act, Federal Clean Water Act
of 1977, 33 U.S.C. ss. 1251, et seq.
Federal Insecticide, Fungicide, and Rodenticide Act, Federal
Pesticide Act of 1978, 7 U.S.C., Paragraph 13, et seq.
Federal Toxic Substances Control Act, 15 U.S.C. ss. 2601, et
seq.
Federal Safe Drinking Water Act, 42 U.S.C. ss. 300 (f), et
seq.
6.5 Insurance Cancellation. Notwithstanding the provisions of Section
6.1 above, no use shall be made or permitted to be made of any Leased Property
nor acts done which will cause the cancellation of any insurance policy obtained
by Tenant covering any Leased Property or any other property of which any
Premises may be a part.
6
7.0 UTILITIES.
----------
Tenant shall pay prior to delinquency for all water, gas, heat, light,
power, telephone, sewage and city assessments, air conditioning, ventilation,
janitorial, landscaping, fire protection monitoring service, and all other
materials and utilities supplied to any Leased Property. Landlord has no
responsibility to maintain or pay for any utilities on any Leased Property.
8.0 MAINTENANCE AND REPAIRS; ALTERATIONS AND ADDITIONS
--------------------------------------------------
8.1 Tenant shall at its sole cost and expense keep and maintain all
Leased Property, including sidewalks, landscaping and driveways located on the
Premises, in good order and condition and repair, and shall suffer no waste with
respect thereto. Tenant shall at all times comply with the image standard
required under the Franchise Agreement. Tenant shall at its sole cost and
expense make all needed repairs to and replacements of the Leased Property,
interior and exterior, structural and nonstructural, ordinary and extraordinary,
including but not limited to any roof, air conditioning and heating systems,
replacements of cracked or broken grass, repair of parking areas and driveways,
and shall keep the plumbing units, pipes and connections free from obstruction
and protected against ice and freezing. Landlord has no responsibility to
maintain or pay for any part of the maintenance or replacement of the Leased
Property.
8.2 Surrender. On the last day of the term hereof, or on any sooner
termination, Tenant shall surrender the Leased Property to Landlord in good
condition, broom clean, ordinary wear and tear excepted. Tenant shall repair any
damage to the Leased Property caused by the removal of Tenant's Equipment
pursuant to Section 8.4 below, which repairs shall include the patching and
filling of holes thereof, the repair of structural damage of any kind or type,
the repair or replacement of all damaged mechanical equipment and all heating,
air conditioning, and ventilating equipment.
8.3 Landlord's Rights. If Tenant fails to perform Tenant's obligations
under any of the provisions of this Section 8, Landlord shall give Tenant
written notice to do such acts as are reasonably required to maintain any Leased
Property in good order and condition. If, within thirty (30) days of such
notice, Tenant fails to commence to do the work and diligently prosecute it to
completion, or, with respect to items which are not reasonably susceptible to
being remedied within such thirty (30) day period, within the period during
which the work may reasonably be completed, then Landlord shall have the right,
(but not the obligation) to do such acts and expend such funds at the expense of
Tenant as are reasonably required to perform such work satisfactorily. Any
amount so expended by Landlord shall be paid by Tenant within ten (10) days
after billing for same, with interest at twelve percent (12.00%) per annum from
the date of such work. Landlord shall have no liability to Tenant for any
damage, inconvenience, or interference with the use of any Leased Property by
Tenant as a result of performing any such work.
8.4 Alterations and Additions.
(a) Tenant shall not make any alterations to any structural
component of any Building (including, but not limited to exterior walls,
foundations, roof and ceilings), or utility installations on or about any
Premises without the express written consent of the Landlord; provided, however,
that the Landlord will not unreasonably delay or withhold consent. As used in
this section, the term "utility installations" shall include ducting, power
plants, space heaters, conduit, and wiring.
(b) Tenant shall provide Landlord with written notice of each
contractor or
7
subcontractor performing work on any Leased Property. Landlord's consent to the
selection of such contractors or subcontractors shall not be required for
construction on the Leased Property not exceeding $100,000.00. Landlord shall
have the right to approve any contractors or sub-contractors for work on any
Leased Property which is reasonably expected to exceed $100,000.00, which
approval shall not be unreasonably withheld or delayed.
(c) All alterations, changes, additions, improvements, and
utility installations (whether or not such utility installations constitute
trade fixtures of Tenant) which may be made to any Leased Property, shall at the
expiration or earlier termination of this Lease, become the property of the
Landlord and remain upon and be surrendered with the Leased Property. The
Equipment, inventory and any other personal property, to the extent owned by
Tenant, other than that which is affixed to any Building or Premises so that it
cannot be removed without material damage to such Building or Premises, shall
remain the property of the Tenant, and may be removed by the Tenant subject to
the provisions of Section 8.23, at any time during the term of this Lease when
Tenant is not in default of any of the provisions of this Lease beyond any
applicable notice and cure period.
9.0 ENTRY BY LANDLORD.
------------------
Landlord and Landlord's agents, shall have the right on reasonable
prior notice during normal business hours to enter any Building or Premises to
inspect the same or to maintain or repair the Leased Property or any portion
thereof or to show any Leased Property to prospective purchasers or lenders, or
during the last three (3) months of the term of the Lease to any prospective
Tenant. Landlord shall have the right to use any and all means which Landlord
may deem proper to open the door to any Building in an emergency of any type.
10.0 LIENS.
------
Tenant shall keep all Leased Property free from any and all liens
arising out of work performed, materials furnished, or obligations incurred by
Tenant and shall indemnify and hold harmless and defend the Landlord from any
and all liens and/or encumbrances arising out of any work performed or materials
furnished by or at the direction to the Tenant. In the event that any such lien
is imposed, Tenant shall have thirty (30) days from the date it is notified of
such imposition to cause the lien to be released of record or bonded around.
Failure to do so by Tenant shall allow Landlord, in addition to all other
remedies provided herein by law, the right, but by no means the obligation, to
cause the lien to be released by such means as it shall deem proper, including
payment of the claim giving rise to the lien. All such sums reasonably paid by
Landlord and all expenses reasonably incurred by it in connection therewith,
including attorney's fees and costs, shall be payable to Landlord by Tenant on
demand with interest at twelve percent (12.00%) per annum. Landlord shall have
the right at all times to post and keep posted on any Leased Property any
notices permitted or required by law, or which the Landlord shall deem proper,
for the protection of the Landlord and any Leased Property, and/or any other
party having an interest therein, from mechanic's and materialman's liens. The
Tenant shall give to Landlord at least ten (10) days written notice of the
expected date of commencement of any work relating to alterations and/or
additions to the Leased Property exceeding $100,000.00.
8
11.0 INDEMNITY
---------
11.1 Indemnity. Tenant shall defend, indemnify, and hold harmless
Landlord from and against any and all claims arising from Tenant's use of any
Leased Property or the conduct of its business or from any activity, work, or
thing done, permitted, or suffered by Tenant in or about any Leased Property and
shall further defend, indemnify, and hold harmless Landlord from and against any
and all claims arising from any breach, or default in the performance of any
obligation on Tenant's part to be performed under the terms of this Lease, or
arising from any act or negligence of Tenant, or any of its agents, contractors,
or employees, and from and against any and all costs, attorneys fees, expenses,
and liabilities reasonably incurred in connection with such claim or any action
or proceeding brought thereon. In case any action or proceeding be brought
against Landlord by reason of any such claim whatsoever, Tenant, upon notice
from Landlord, shall defend same at Tenant's expense by counsel reasonably
satisfactory to Landlord. However, Tenant shall not be liable for any damage or
injury occasioned by the negligence or intentional acts of Landlord or its
designated agents, contractors or employees or for consequential damages.
11.2 Exemption of Landlord from Liability. Except for intentional acts
or gross negligence of the Landlord, its agents, contractors and employees,
Landlord shall not be held liable for injury or damage which may be sustained by
the person, goods, wares, merchandise, or property of Tenant, or by any agent or
other person claiming by or under Tenant which might be caused by or resulting
from fire, steam, electricity, gas, water, or rain, which may leak or flow from
or into any part of any Leased Property, or from breakage, leakage, obstruction,
or other defects of the pipes, sprinklers, wires, appliances, plumbing, heating,
air conditioning, ventilating, or lighting fixtures of the same, whether the
said damage or injury results from conditions arising in, on, or under any
Building or Premises or upon other portions of the Property of which the
Premises are a part or from other sources. Landlord shall not be liable for any
damages arising from any act or neglect of any other tenant (if any) of any
Building or Premises, or property of which any Premises is a part. Tenant shall
defend, indemnify and hold harmless Landlord from and against any and all claims
by any person which may arise from the matters mentioned in this Section 11.2
except for intentional acts or negligence of the Landlord, its agents,
contractors and employees.
9
12.0 INSURANCE
---------
12.1 Liability Insurance. Tenant shall, at Tenant's expense, procure
and maintain at all times during the term of this Lease, a policy of
comprehensive public liability insurance insuring Landlord and Tenant against
any liability arising out of the ownership, use, occupancy, or maintenance of
any Leased Property. Such insurance shall at all times be in an amount of not
less than $3,000,000.00. The limits of such insurance shall not limit the
liability of the Tenant. All insurance required under this Section 12 shall be
with companies rated A or better in Best's Insurance Guide. Tenant shall deliver
to Landlord certificates of insurance evidencing the existence and amounts of
such insurance with loss payable clauses reasonably satisfactory to Landlord,
provided that in the event Tenant fails to procure and maintain such insurance,
Landlord may (but shall not be required to), procure same at Tenant's expense
after ten (10) days prior written notice. No such policy shall be cancelable or
subject to reduction of coverage or other modification except after thirty (30)
days prior written notice to Landlord by the insurer. All such policies shall be
written as primary policies, not contributing with and not in excess of
coverages which the Landlord may carry. Tenant shall, within twenty (20) days
prior to the expiration of such policies, furnish Landlord with renewals or
binders or Landlord, after ten (10) days' written notice, may order such
insurance and charge the cost to the Tenant, which amounts shall be payable by
Tenant on demand. Tenant shall have the right to provide such insurance coverage
pursuant to blanket policies which the Tenant may have in force, provided such
blanket policies expressly afford coverage of any Leased Property and to
Landlord as is required by this Lease.
12.2 Property Insurance. Tenant shall, at Tenant's expense, procure and
maintain at all times during the term of this Lease, the policy or policies of
insurance covering loss or damage to any Leased Property in the amount of the
full replacement value thereof, and providing protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, sprinkler leakage, flood and special extended peril (all
risk). Tenant shall pay the entire amount of such annual insurance premiums and
shall deliver to Landlord certificates of insurance evidencing such insurance
with loss payable clauses reasonably satisfactory to Landlord, provided that in
the event Tenant fails to provide and maintain such insurance, Landlord may (but
shall not be required to) procure same at Tenant's expense after ten (10) days
prior written notice. No such policy shall be cancelable or subject to reduction
of coverage or other modification except after thirty (30) days prior written
notice to Landlord by the insurer. All such policies shall be written as primary
policies, not contributing with and not in excess of coverages which the
Landlord may carry. Tenant shall, within twenty (20) days prior to the
expiration of such policies, furnish Landlord with renewals or binders or
Landlord, after ten (10) days' written notice, may order such insurance and
charge the cost to the Tenant, which amounts shall be payable by Tenant on
demand. Such insurance shall provide for payment of losses thereunder to
Landlord or the holder of a first mortgage or deed of trust on any of the Leased
Property. Any loss proceeds shall be made available for the purposes of
replacing or rebuilding the pertinent Leased Property if required under Section
13 and in which event, such funds shall be segregated from the general funds of
Landlord and any mortgagee of Landlord's interest in the Leased Property.
12.3 Waiver of Subrogation. Landlord and Tenant shall waive any and all
rights of recovery against the other or against the officers, employees, agents
and representatives of the other, on account of loss or damage occasioned to
such waiving party or its property or the property of others under its control
caused by fire or any of the extended coverage risks described above to the
extent that such loss or damage is insured. Landlord and/or Tenant shall give
notice to the insurance carrier or carriers involved that the
10
foregoing mutual Waiver of Subrogation option is contained in this Lease. The
waivers provided for in this Section 12.3 shall be applicable and effective only
in the event such waivers are obtainable from the insurance carriers concerned.
13.0 DAMAGE TO PREMISES
------------------
13.1 Partial or Total Damage-Insurance Available. In the event of
damage causing a partial or total destruction of a Building during the term of
this Lease and there is made available to the Landlord, or to any mortgagee of
Landlord's interest in the Leased Property, pursuant to Section 12.0 above,
insurance proceeds for such damage, Landlord shall repair or rebuild the damaged
Building to the condition existing immediately prior to such damage, with this
Lease to continue in full force and effect with respect to such damaged
Building. Tenant shall deposit with Landlord or make available to Landlord the
amount reasonably estimated by Landlord to be required in addition to any
available insurance proceeds to complete the repairs or reconstruction ("Tenant
Repair Deposit") within thirty (30) days after notice to Tenant by Landlord. The
amount of the Tenant Repair Deposit shall not limit Tenant's liability if
insufficient insurance is available to reconstruct the damaged Building, and
Tenant shall pay any such deficiency to Landlord within thirty (30) days after
written notice; conversely if after such reconstruction there is any balance in
the Tenant Repair Deposit, such excess will promptly be refunded to Tenant
within ten (10) days after reconstruction is completed. Provided, however, if
Landlord has not begun reconstruction or repairs within thirty (30) days after
the later of (i) receipt of available insurance proceeds or (ii) receipt of the
Tenant Repair Deposit, if any, or it is not reasonably anticipated that such
repair or reconstruction can be completed within a 180-day period after
commencement of reconstruction, Tenant may, by written notice to Landlord,
terminate this Lease as to such damaged Building, with a reduction in rent due
hereunder as provided in Section 13.4, provided that Tenant has indemnified
Landlord against any deficiency in insurance proceeds.
13.2 Repair Not Permitted. In the event that a Building may not be
repaired as required herein under applicable laws and regulations
notwithstanding the availability of insurance proceeds and any Tenant Repair
Deposit, this Lease shall be terminated as to such Building effective with the
date of the damage occurrence, with a reduction in rent due hereunder as
provided in Section 13.4, and Landlord shall be entitled to retain the insurance
proceeds and the Tenant Repair Deposit pertaining to the damaged Building.
13.3 Damage to Building or Personal Property During Last Twelve Months
of Term. In the event of any total or partial destruction to a Building
occurring during the last twelve (12) month period of the term of this Lease (or
any extension thereof), and notwithstanding the provisions of Sections 13.1
above, Landlord or Tenant shall have the right for the longer of (i) a period of
sixty (60) days following the event giving rise to the casualty or damage, or
(ii) the period fifteen (15) days following the receipt of insurance proceeds
and any Tenant Repair Deposit to elect to retain all insurance proceeds and any
Tenant Repair Deposit and to terminate this Lease as to such Building, with a
reduction in rent due hereunder as provided in Section 13.4. Provided, however,
if Tenant has properly exercised any option that it may have to renew the Lease
Term, this Section 13.3 shall be applicable to the option period.
13.4 Abatement of Rent. In the event that casualty to a Building
results in Tenant ceasing business operations at the Building, and/or in the
event of termination of this Lease with respect to a Building, the rent payable
by Tenant under this Lease shall be reduced by the Rent Reduction Amount from
11
the date of the event giving rise to such damage or casualty. If only a portion
of the Premises are affected by the casualty, but Tenant continues restaurant
operations at such damaged Building, Tenant shall be entitled to an equitable
reduction (not to exceed the Rent Reduction Amount) in rent in direct proportion
to the area of the Building which is unusable bears to the area of improvements
at such damaged Building. Tenant's obligation to resume the payment of rent and
other charges with respect to a damaged Building shall recommence on the earlier
of sixty (60) days after completion of any required construction of the Building
or the date on which Tenant first reopens for business to the public. This right
to a partial abatement of rent shall be Tenant's sole remedy as a result of any
such damage or repair. Landlord shall not be required to make any repair or
restoration of injury or damage to any Equipment or any improvement or property
installed on the Premises by or at the expense of Tenant. Such items shall be
replaced by Tenant at Tenant's sole cost and expense.
13.5 Continuation of Lease After Casualty or Condemnation.
Notwithstanding any partial or complete termination of this Lease with respect
to a damaged or condemned Building pursuant to Section 13 or 14 hereof, this
Lease shall continue in full force and effect with respect to the remaining
Leased Property, with such reduction in rent attributable to such damaged or
condemned Building as provided in Section 13 or 14 hereof.
14.0 CONDEMNATION.
-------------
14.1 Total Taking. If all, or a substantial portion of any Building or
the Premises of which such Building is located shall be taken or appropriated
for public or quasi-public use by the right of eminent domain, (with or without
litigation), or transferred by agreement in connection with such public or
quasi-public use, either Landlord or Tenant shall have the right at its option
(exercisable within thirty (30) day of the receipt of notice of such taking), to
terminate this Lease as to such Building as of the date possession is taken by
the condemning authority. A substantial portion of the Building shall be deemed
to be taken or appropriated if such taking shall have a materially adverse
effect upon the present use and operation of the affected Building or the
economic feasibility of operation thereof, or shall result in the elimination of
necessary ingress and/or egress from such Building to public roads ("Total
Taking"). In the event of a Total Taking in which this Lease is terminated with
respect to the condemned Building, the rent due under this Lease shall be
reduced by the Rent Reduction Amount from the date of such taking. In the event
of a taking which does not constitute a Total Taking ("Partial Taking"), Tenant
shall be entitled to an equitable reduction in rent (not to exceed the Rent
Reduction Amount) in direct proportion to the area of the Premises so taken
bears to the total area of the Premises leased to Tenant.
14.2 Award. No award for any Total Taking or Partial Taking shall be
apportioned, and except as provided in the next sentence, Tenant hereby assigns
to Landlord any award which may be made in such taking appropriation, or
condemnation, together with any and all rights of Tenant now or hereafter
arising in such award. Landlord has no interest, however, in any award made to
Tenant for the taking of Equipment belonging to Tenant or moving expenses; or
for the interruption of or damage to Tenant's business, or to Tenant's
unamortized cost of leasehold improvements. Any award to the Landlord by reason
of a Partial Taking (or Total Taking, if the Lease is not terminated with
respect to such condemned Building as set forth above) shall be made available
for reconstruction, and shall be segregated from the Landlord's general funds.
No temporary taking of any Building and/or of the Tenant's rights therein, or
under this Lease, shall terminate this Lease as to such Building or give Tenant
any right to any abatement of rent. Any award made for such temporary taking
shall belong entirely to Tenant.
12
15.0 ASSIGNMENT AND SUBLETTING
-------------------------
15.1 Landlord's Consent Required. Tenant shall not assign, transfer,
mortgage, pledge, hypothecate, or encumber this Lease or any interest therein,
nor permit such assignment by operation of law, and shall not sublet any Leased
Property or any part thereof, without the prior express written consent of the
Landlord, which consent shall not be unreasonably withheld or delayed. Landlord
may condition such consent upon any assignee or subtenant providing Landlord
with evidence of financial capability and restaurant operating experience
reasonably satisfactory to Landlord. Any attempt to do so without such consent
being in hand, shall be wholly void and shall constitute a breach of this Lease.
Notwithstanding the foregoing to the contrary, Tenant shall have the right to
assign this Lease with prior written notice to Landlord but without Landlord's
consent, provided that there then exists no default under this Lease, beyond any
applicable notice and cure period, to any person which is acquiring all or
substantially all of the assets of Tenant, whether by merger, sale or otherwise.
In connection with Tenant's assignment of its interest in this Lease
with respect to less than all of the Buildings in a transaction satisfying the
requirement of this Section 15.1, Landlord will cooperate with Tenant in
executing an individual lease agreement with such assignee, provided that: (i)
Tenant pays Landlord's reasonable legal fees in connection with the preparation
of such individual lease; (ii) the individual lease has identical terms to the
provisions of this Lease except for (A) the rental rate, which will be
determined by Tenant in its reasonable discretion, and which will reduce the
rental payments due hereunder by the same amount, (B) the assignee shall have no
right to purchase a Building pursuant to Section 18.22 hereof, (C) the Assignee
shall have no right to further assign or sublet the Leased Property without
Landlord's prior written consent, which consent will not be unreasonably
withheld or delayed, and (iii) Tenant shall guaranty, in form and content
reasonably satisfactory to Landlord, the assignee's payment and performance
obligation under such individual lease. Upon execution of such individual lease,
the Leased Property which is the subject of such individual lease shall no
longer be part of the Leased Property demised under this Lease or be governed by
this Lease. Concurrently with the execution of such individual lease, the
parties shall enter into an amendment to this Lease evidencing the removal of
such Leased Property from the Leased Property demised hereunder and the
corresponding reduction of the Base Rent payable hereunder, as provided above.
15.2 No Release of Tenant. No consent by Landlord to any assignment or
subletting by Tenant shall relieve Tenant of any obligations to be performed by
Tenant under this Lease, whether occurring before or after such assignment or
subletting. The consent by Landlord to any assignment or subletting shall not
relieve Tenant from the obligation to obtain Landlord's express written consent
to any other assignment or subletting, which consent will not be unreasonably
withheld or delayed. The acceptance of any rent by Landlord from any person
shall not be deemed to be a waiver by Landlord of any provision of this Lease,
or to be consent to any assignment, subletting, or other transfer.
15.3 By Landlord. This Lease shall be fully assignable by Landlord or
its assigns.
15.4 Leasehold Mortgages. Tenant and its successors and assigns are
hereby given the right by Landlord in addition to any other rights herein
granted, without Landlord's prior written consent, to mortgage its interests in
this Lease and any sublease(s) under one or more first leasehold mortgages, and
assign this Lease, and any sublease(s) as collateral security for such
Mortgage(s), upon the condition that all rights acquired under such Mortgage(s)
shall be subject to each and all of the covenants, conditions and
13
restrictions set forth in this Lease, and to all rights and interests of
Landlord herein, none of which covenants, conditions or restrictions is or shall
be waived by Landlord by reason of the right given to mortgage such interest in
this Lease, except as expressly provided herein. If Tenant or its successors and
assigns shall mortgage this leasehold, and if the holder(s) of such Mortgage(s)
shall send to Landlord a true copy thereof, together with written notice
specifying the name and address of the Mortgagee and the pertinent recording
date, if any, with respect to such Mortgage(s) (which notice provision may be
satisfied by a letter from the leasehold Mortgagee to Landlord specifying each
Building location subject to such mortgage, and that a true and correct form of
such leasehold Mortgage is attached to such letter), Landlord agrees that so
long as any such leasehold Mortgage(s) shall remain unsatisfied of record or
until written notice of satisfaction is given by the holder(s) to Landlord, the
following provisions shall apply:
(a) There shall be no cancellation, surrender or modification
of this Lease by joint action of Landlord and Tenant without the prior consent
in writing of the leasehold Mortgagee(s).
(b) Landlord shall, upon serving Tenant with any notice of
default, simultaneously serve a copy of such notice upon the holder(s) of such
leasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the same
period (plus an additional fifteen (15) days), after service of such notice upon
it, to remedy or cause to be remedied the default complained of, and Landlord
shall accept such performance by or at the instigation of such leasehold
Mortgagee(s) as if the same had been done by Tenant.
(c) Anything herein contained notwithstanding, while such
leasehold Mortgage(s) remains unsatisfied of record, or until written notice of
satisfaction is given by the holder(s) to Landlord, if any default shall occur
which, pursuant to any provision of this Lease, entitles Landlord to terminate
this Lease, and if, before the expiration of thirty (30) days from the date of
service of notice of termination upon such leasehold Mortgagee(s) such leasehold
Mortgagee(s) shall have notified Landlord of its desire to nullify such notice
and shall have paid to Landlord all rent and additional rent and other payments
herein provided for which are then in default, and shall have complied or shall
commence the work of complying with all of the other requirements of this Lease,
which are then in default and which are capable of cure by such leasehold
Mortgagee(s), and shall prosecute the same to completion with due diligence,
then in such event Landlord shall not be entitled to terminate this Lease and
any notice of termination theretofore given shall be void and of no effect.
(d) Landlord agrees that the name of the leasehold
Mortgagee(s) may be added to the "Loss Payable Endorsement" of any and all
insurance policies required to be carried by Tenant hereunder on condition that
the insurance proceeds are to be applied in the manner specified in this Lease.
(e) Landlord agrees that, in the event of termination of this
Lease by reason of any default by Tenant or rejection in bankruptcy, Landlord
will enter into a new lease of the Leased Property with the leasehold
Mortgagee(s) or its nominee(s), for the remainder of the term, effective as of
the date of such termination, at the rent and additional rent and upon the
terms, provisions, covenants and agreements as herein contained, and to the
rights, if any, of any parties then in possession of any part of the Leased
Property, provided:
(i) Said Mortgagee(s) or its nominee shall make
written request upon Landlord for such new lease within thirty (30)
days after the date of such termination and such written request is
accompanied by payment to Landlord of sums then due to Landlord under
this Lease;
14
(ii) Said Mortgagee(s) or its nominee(s) shall
thereafter pay to Landlord at the time of the execution and delivery of
said new lease, any and all sums which would at the time of the
execution and delivery thereof, be due pursuant to this Lease but for
such termination, and in addition thereto, any expenses, including
reasonable attorneys' fees, to which Landlord shall have been subjected
by reason of such default (after Landlord has applied any security held
hereunder);
(iii) Said Mortgagee(s) or its nominee(s) shall
thereafter perform and observe all covenants herein contained on
Tenant's part to be performed and shall further remedy any other
conditions which Tenant under the terminated lease was obligated to
perform under the terms of this Lease;
(iv) Such new lease shall be expressly made subject
to the rights, if any, of Tenant under the terminated lease;
(v) The tenant under such new lease shall have the
same right, title and interest in and to the buildings and improvements
on the Leased Property as Tenant had under the terminated lease.
16.0 SUBORDINATION
-------------
16.1 Subordination. At Landlord's option, this Lease shall be subject
and subordinate to all ground or underlying leases hereinafter executed
affecting any Leased Property, and to the lien of any mortgages or deeds of
trust in any amount or amounts whatsoever now or hereafter placed on or against
the land or improvements or either thereof, of which the Premises are a part,
without the necessity of the execution and delivery of any further instruments,
on the part of the Tenant, to effectuate such subordination. If any mortgagee,
trustee, or ground lessor shall elect to have this Lease prior to the lien of
its mortgage deed of trust or ground lease, and shall give written notice
thereof to Tenant, this Lease shall be deemed prior to such mortgage, deed of
trust or ground lease, on the date of the recording thereof.
16.2 Subordination Agreements. Tenant covenants and agrees to execute
and deliver upon demand, without charge, such reasonable further instruments
evidencing such subordination of this Lease to such ground or underlying leases
and to the lien of any such mortgages or deeds of trust as may be required by
Landlord.
16.3 Quiet Enjoyment. Landlord covenants and agrees with Tenant that
upon Tenant paying rent and other monetary sums due under this Lease, performing
its covenants and conditions of the Lease and upon recognizing any subsequent
lessor under a ground or underlying lease or any purchaser as Landlord, Tenant
shall and may peaceably and quietly have, hold, and enjoy the Leased Property
for the term of the Lease as against any adverse claim of Landlord or any party
subject, however, to the terms of the Lease.
16.4 Attornment. In the event any proceedings are brought for default
under any ground or underlying lease, or in the event of foreclosure or the
exercise of a power of sale under any mortgage or deed or trust made by Landlord
covering any Leased Property, the Tenant shall attorn to the lessor under the
ground or underlying lease or the purchaser upon any such foreclosure, or sale,
and recognize such lessor or purchaser as the Landlord under this Lease,
provided said lessor or purchaser expressly agrees in writing to be bound by the
terms of this Lease.
15
16.5 Non-Disturbance. Tenant's agreement to subordinate or attorn
pursuant to Section 16.1, 16.2, and 16.4 is expressly contingent upon Tenant
receiving from such ground lessor or holder of such mortgage or deed of trust a
commercially reasonable and acceptable non-disturbance agreement at no cost
to Tenant which nondisturbance agreement shall provide, among other things, that
(i) Tenant shall get the same notice, if any, given to Landlord of any default
or acceleration of any obligation or any sale in foreclosure, (ii) Tenant shall
be permitted to cure any such default on Landlord's behalf within any applicable
cure period, and Tenant shall be reimbursed by Landlord for any and all costs
incurred in effecting such cure, including without limitation out-of-pocket
costs incurred to effect any such cure (including reasonable attorneys' fees)
and (iii) so long as Tenant is not in default hereunder, Tenant shall not be
named in any foreclosure action or sale and this Lease shall not be terminated
and Tenant shall be recognized as the tenant under all of the terms of this
Lease. Landlord shall obtain from the holder of the mortgage or deed of trust
encumbering the Leased Property on the Rent Commencement Date a non-disturbance
agreement satisfying the requirements of this Section.
17.0 DEFAULT, REMEDIES
-----------------
17.1 Default. The occurrence of any of the following shall constitute a
material default and breach of this Lease by Tenant:
(a) Any failure by Tenant to pay the rent or any other monetary
sums required to be paid hereunder (where such failure continues for ten (10)
days after written notice by Landlord to Tenant);
(b) The abandonment or vacation of more than five (5) Buildings at
any one time by the Tenant or the sale by Tenant of all or a part of the
restaurant operations, unless pursuant to a permitted assignment or sublease
pursuant to Section 15;
(c) A failure by Tenant to observe and perform any other provision
of this Lease to be observed or performed by Tenant, where such failure
continues for thirty (30) days after written notice thereof by the Landlord to
the Tenant. However, if the nature of the default is such that the default
cannot be reasonably cured within the thirty (30) day period, Tenant shall not
be deemed to be in default if Tenant shall within such period of time commence
such cure and thereafter diligently prosecute the same to completion;
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt, or of a petition for reorganization
or arrangement under any law relating to bankruptcy, which is not dismissed
within ninety (90) days; the appointment of a trustee or receiver to take
possession of substantially all of the Tenant's assets located at any Premises
or of Tenant's interest in this Lease where possession is not restored to Tenant
within ninety (90) days; or the attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at any Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within ninety (90)
days;
(e) The default by Tenant under any Franchise Agreement beyond any
applicable notice and cure period;
(f) The default by Tenant under any leasehold Mortgage beyond any
applicable notice and cure period; and
16
(g) The default by Guarantor or any Substitute Guarantor under
Section 4.0 hereof.
17.2 Remedies. In the event of any such material default or breach by
Tenant, Landlord may, at any time thereafter, without limiting Landlord in the
exercise of any right or remedy at law or in equity which Landlord may have by
reason of such default or breach:
(a) Maintain this Lease in full force and effect and recover the
rent and other monetary charges as they become due, without terminating Tenant's
right to possession irrespective of whether Tenant shall have abandoned any
Leased Property. In the event Landlord elects not to terminate the Lease,
Landlord shall have the right to attempt to relet all or any portion of any
Leased Property at such rent and upon such conditions and for such a term, and
to do all acts necessary to maintain or preserve any Leased Property as Landlord
deems reasonable and necessary without electing to terminate the Lease,
including removal of all persons and property from each Leased Property;
(b) Terminate Tenant's right to possession of one or more
(including all) of all Leased Property by any lawful means, in which case this
Lease shall terminate with respect to such Leased Property (collectively the
"Terminated Leased Property") and Tenant shall immediately surrender possession
of the Terminated Leased Property to the Landlord. In such event Landlord shall
be entitled to recover possession of the Terminated Leased Property from Tenant
and those claiming through or under Tenant, and Landlord may continue the
restaurant operations itself or through an affiliate, and Tenant hereby assigns
to Landlord its right, title and interest in the following properties as
security for Landlord's remedies under this Section 17.2: (i) The Franchise
Agreement and (ii) the Equipment. In the event that Landlord or its affiliates
continue the restaurant operations with respect to any Building after a default
by Tenant hereunder, the rent due under this Lease shall be reduced by the Rent
Reduction Amount with respect to the Building or Buildings in which Landlord or
its affiliate is conducting such restaurant operations; provided, however, that
Landlord may at any time abandon such restaurant operations with respect to any
Building by delivery of thirty (30) days' written notice to Tenant, in which
event Tenant's rental obligation with respect to such Building shall be restored
in full.
Any termination of this Lease and repossession of the Terminated Leased
Property shall be without prejudice to any remedies which Landlord might
otherwise have for arrears of rent or for a prior breach of the provisions of
this Lease. In case of such termination, Tenant shall indemnify Landlord against
all costs and expenses and loss of rent (loss of rent for the Terminated Leased
Property shall be determined in accordance with Exhibit E). Items of expense for
which Tenant shall indemnify Landlord shall include the costs and expenses
reasonably incurred in collecting amounts due from Tenant under this Lease
(including attorneys' fees, litigation expenses and the like); the damages
incurred by Landlord by reason of Tenant's default, including, the cost of
recovering possession of the Terminated Leased Property, expenses of reletting
including necessary repairs of the Leased Property, excluding consequential
damages. All sums due in respect of the foregoing shall be due and payable
immediately upon notice from Landlord that a cost or expense has been incurred
without regard to whether the cost or expense was incurred before or after the
termination of this Lease. In the event proceedings are brought under the
Bankruptcy Code, including proceedings brought by Landlord which relate in any
way to this Lease including, without limitation, proceedings for the
termination, assumption or assignment thereof, or proceedings to secure adequate
protection for Landlord or proceedings involving objections to the allowance of
Landlord's claim, then Landlord shall be paid, in addition to any and all
amounts due Landlord pursuant to the terms of this Lease, such further amount as
shall be sufficient to cover all costs and expenses actually incurred by
Landlord
17
with respect to the proceeding, which costs and expenses shall include the
reasonable compensation, costs, expenses, disbursements and advances of
Landlord, its agents and attorneys.
Landlord may elect by written notice to Tenant within 60 days following
such termination to be indemnified for loss of rent by a lump sum payment
representing the difference between the amount of rent which would have been
paid in accordance with this Lease for the Terminated Leased Property for the
remainder of the Lease term (loss of rent for the Terminated Leased Property
shall be based on the Rent Reduction Amount for the Terminated Leased Property,
including all escalations of Base Rent pursuant to Exhibit E, and all taxes and
other amounts required to be paid by Tenant hereunder) and the aggregate fair
market rent of the Terminated Leased Property for the remainder of the Lease
term, estimated as of the date of the termination, both of which amounts shall
be discounted using a discount rate equal to Treasury Securities with maturity
date approximately equal to the remaining term of the Lease.
Should Landlord fail to make the election provided for above, Tenant
shall indemnify Landlord for the loss of rent by a payment at the end of each
month during the remaining Lease term representing the difference between the
rent which would have been paid in accordance with this Lease and the rent
actually received by Landlord with respect to the Premises (loss of rent for the
Terminated Leased Property shall be based on the Rent Reduction Amount for the
Terminated Leased Property, including all escalations of Base Rent pursuant to
Exhibit E, and all taxes and other amounts required to be paid by Tenant
hereunder). Without any previous notice or demand separate actions may be
maintained by Landlord against Tenant from time to time to recover any damages
which, at the commencement of any action, have then or theretofore become due
and payable to Landlord under this Article without waiting until the end of the
original term of this Lease.
In the event that this Lease shall be terminated as hereinabove
provided or by summary proceedings or otherwise, Landlord may at any time and
from time to time relet the Terminated Leased Property in whole or in part
either in its own name or as agent of Tenant for any period equal to or greater
or less than the remainder of the then current term of this Lease for any rental
which it may deem reasonable to any tenant it may deem suitable and satisfactory
and for any use and purpose which it may deem appropriate. Landlord shall use
reasonable commercial efforts to mitigate Tenant's damages hereunder on any
breach of this Lease. Upon each reletting all rentals received by Landlord from
such reletting shall be applied first to the payment of any indebtedness other
than rent due hereunder from Tenant to Landlord; second, to the payment of any
reasonable costs and expenses of such reletting and of such alterations and
repairs as are reasonably necessary for the reletting; third to the payment of
rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future rent as the same may become due and
payable hereunder. Upon a reletting of the Terminated Leased Property, Landlord
shall not in any event be required to pay Tenant any surplus of any sums
received by the Landlord in excess of the rent payable in accordance with this
Lease. Unpaid installments of rent or other monies due shall bear interest from
the date due at the rate of twelve percent (12.00%) per annum.
17.3 Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent and other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed on Landlord by the
terms of any mortgage or deed of trust covering any Leased Property.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within ten (10) days after
such amount shall be due, Tenant shall pay to Landlord a late charge equal to
three percent (3.00%) of such
18
overdue amount. The parties hereby agree that such late charge represents a fair
and reasonable estimate of the cost Landlord will incur by reason of late
payment by Tenant.
17.4 Default by Landlord. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event later than ten (10) days after written notice by Tenant to
Landlord and to the holder of any first mortgage or deed of trust covering the
Premises, whose name and address shall have been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligation, provided,
however, that if the nature of Landlord's obligation is such that more than ten
(10) days are required for performance, then Landlord shall not be in default if
Landlord commences performance within such ten (10) day period and thereafter
diligently prosecutes same to completion. Tenant agrees that any such mortgagee
or deed of trust holder shall have the right to cure such default on behalf of
Landlord within ten (10) calendar days after receipt of such notice. Tenant
further agrees not to invoke any of its remedies under this Lease until said ten
(10) days have elapsed.
18.0 MISCELLANEOUS
-------------
18.1 Estoppel Certificate.
(a) Tenant shall at any time upon not less than twenty (20) days
prior written notice from Landlord, execute, and deliver to Landlord a statement
in writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect), and the date to
which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of any Leased Property.
(b) Landlord shall at any time upon not less than twenty (20) days
prior written notice from Tenant, execute, and deliver to Tenant a statement in
writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect), and the date to
which the rent and other charges are paid in advance, if any, (ii) acknowledging
that there are not, to Landlord's knowledge, any uncured defaults on the part of
Tenant hereunder, or specifying such defaults if any are claimed, and (iii)
containing such additional information as is set forth in Exhibit H hereto. Any
such statement may be conclusively relied upon by any prospective leasehold
Mortgagee or prospective purchaser or assignee.
(c) Either party's failure to deliver the statement referenced in
Section 18.1 within such time shall be conclusive upon such party (i) that this
Lease is in full force and effect, without modification, (ii) that it has no
knowledge of any uncured defaults in the other party's performance, and (iii)
that not more than one month's rent has been paid in advance.
18.2 Transfer of Landlord's Interest. In the event of a bona fide sale
or conveyance by Landlord of Landlord's interest in any Leased Property or in
any other property in which any Premises may be a part, other than a transfer
for security purposes only, if Landlord is not in default under any provision of
this Lease, Landlord shall be relieved from and after the date specified in any
such notice of transfer of all obligations and liabilities accruing thereafter
on the part of the Landlord with respect to the transferred
19
Leased Property, provided that any funds in the hands of Landlord at the time of
transfer in which Tenant has an interest, shall be delivered to the successor of
the Landlord and provided Landlord's assignee assumes all such obligations. This
Lease shall not be affected by any such sale and Tenant agrees to attorn to the
purchaser or assignee provided all Landlord's obligations hereunder are assumed
in writing by the transferee.
In the event that less than all of the Leased Properties are sold to a
single purchaser, as a condition to such sale, the purchaser and Tenant shall
concurrently with each sale, execute and deliver to each other a new lease for
such Leased Property, which new lease shall be for the remaining term of this
Lease and shall be in the form of this Lease (each, an "Individual Lease"). The
Base Rent payable by Tenant under each Individual Lease shall be an allocable
portion of the Base Rent payable by Tenant under this Lease, as determined by
Landlord in its reasonable discretion. Landlord shall provide Tenant with no
less than thirty (30) days prior written notice of the anticipated closing date
of the sale of a Leased Property, which notice shall be accompanied by a draft
of the Individual Lease.
Subject to and effective immediately upon the transfer of title to any
Leased Property to a purchaser and the execution and delivery by such purchaser
and Tenant of the Individual Lease, such Leased Property shall thereafter no
longer be part of the Leased Property demised under this Lease or be governed by
this Lease and the Base Rent payable under this Lease shall be reduced by an
amount equal to the Base Rent payable by Tenant under the Individual Lease for
such Leased Property.
Concurrently with the sale of each Leased Property and the execution of
an Individual Lease, the parties shall enter into an amendment to this Lease
evidencing the removal of such Leased Property from the Leased Property demised
hereunder and the corresponding reduction of the Base Rent payable hereunder, as
provided above.
18.3 Captions; Attachment; Defined Terms.
(a) Captions of the paragraphs of this Lease are for convenience
only and shall not be deemed to be relevant in resolving any question of
interpretation or construction of any section of this Lease.
(b) Exhibits attached hereto, and addendums and schedules
initialed by the parties, are deemed by attachment to constitute part of this
Lease and are incorporated herein.
18.4 Entire Agreement. This instrument along with any exhibits and
attachments hereto constitutes the entire agreement between Landlord and Tenant
relative to the Leased Property. This agreement and the exhibits and attachments
may be altered, amended, or revoked only by an instrument in writing signed by
both Landlord and Tenant. Landlord and Tenant hereby agree that all prior or
contemporaneous oral agreements between and among themselves and their agents or
representatives relating to the leasing of any Leased Property are merged into
or revoked by this agreement.
18.5 Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
18.6 Time; Joint and Several Liability. Time is of the essence of this
Lease in each and every provision hereof. All the terms, covenants, and
conditions contained in this Lease to be performed by
20
either party, if such party shall consist of more than one person or
organization, shall be deemed to be joint and several, and all rights and
remedies of the parties shall be cumulative and non-exclusive of any other
remedy at law or in equity.
18.7 Waiver. No waiver by Landlord or Tenant of any provision hereof
shall be deemed a waiver of any other provision hereof or of any subsequent
breach by Tenant or Landlord of the same or any other provision. Landlord's or
Tenant's consent to or approval of any act shall not be deemed to render
unnecessary the obtaining of Landlord's or Tenant's express written consent to
or approval of any subsequent act by the Tenant or Landlord. The acceptance of
rent hereunder by Landlord shall not be a waiver of any succeeding 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
succeeding breach at the time of acceptance of such rent.
18.8 Surrender of Premises. The voluntary or other surrender of this
Lease by the Tenant, or mutual cancellation thereof, shall not work a merger,
and shall, at the option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to it
or any or all such subleases or subtenancies.
18.9 Holding Over. If Tenant remains in possession of all or any part
of any Leased Property after the expiration of the term of this Lease, with or
without the express or implied consent of the Landlord, such tenancy shall be
from month to month only, and not a renewal of this Lease or an extension for
any further term. In such case, rent and other monetary sums due hereunder shall
be payable in the amount and at the time specified in this Lease and such
month-to-month tenancy shall be subject to every other term, covenant, and
agreement contained herein.
18.10 Signs.
(a) Tenant shall have the right to erect such signs as it shall
elect, all in accordance with legal requirements.
(b) Any such signs described above shall be removed at the
expiration or earlier termination of the Lease at Tenant's expense and Tenant
shall repair any damage to any Leased Property resulting from such removal. If
Tenant fails to do so, Landlord may cause such removal and repair on Tenant's
behalf at Tenant's reasonable expense.
18.11 Reasonable Consent. Except as specifically limited elsewhere in
this Lease, wherever in this Lease Landlord and/or Tenant is required to give
its consent or approval to any action on the part of the other, such consent or
approval shall not be unreasonably withheld, delayed, conditioned or charged
for. In the event of failure to give any such consent, the other party shall be
entitled to specific performance of law and shall have such other remedies as
are reserved to it under this Lease, but in no event shall Landlord or Tenant be
responsible in monetary damages for failure to give consent unless consent is
withheld maliciously or in bad faith.
18.12 Interest on Past-Due Obligations. Except as expressly herein
provided, any amount due to Landlord not paid when due shall bear interest at
twelve percent (12.00%) per annum from the due date. Payment of such interest
shall not excuse or cure any default by Tenant under this Lease. Payment of such
interest is in addition to the late charge specified in section 17.3 of this
Lease.
21
18.13 Recording. Tenant shall not record this Lease without Landlord's
prior express written consent. Landlord and Tenant shall, at Tenant's expense,
execute and record a short form or memo of Lease promptly following the Rent
Commencement Date.
18.14 Costs of Suit.
(a) If Tenant or Landlord shall bring any action for any relief
against the other, declaratory or otherwise, arising out of this Lease,
including any suit by Landlord for the recovery of rent or possession of any
Leased Property, the prevailing party shall be entitled to an award of its
reasonable attorneys' fees and costs. Such fees and costs shall include those
fees and costs incurred at trial, on appeal, or in any bankruptcy proceeding.
(b) Should Landlord, without fault on Landlord's part, be made a
party to any litigation instituted by Tenant or by any third party against
Tenant, or by or against any person holding under or using any Leased Property
by license of Tenant, or for the foreclosure of any lien for labor, material
furnished to or for Tenant or any such other person or otherwise arising out of
or resulting from any act or transaction of Tenant, or of any such person,
Tenant covenants to defend, indemnify, and hold Landlord harmless from any
judgement rendered against Landlord or any Leased Property, or any part thereof,
and all costs and expenses, including reasonable attorney fees, incurred by
Landlord in or in connection with such litigation.
18.15 Binding Effect; Choice of Law. The parties hereto agree that all
provisions hereof are to be construed as both covenants, and conditions as
though the words importing such covenants and conditions were used in each
separate paragraph hereof. Subject to any provisions hereof restricting
assignment or subletting by the Tenant, all of the provisions hereof shall bind
and inure to the benefit of the parties hereto, their respective heirs, legal
representative, assigns, and successors. This Lease shall be governed by the
laws of the State of Texas.
18.16 Waiver of Jury Trial. EACH OF THE PARTIES HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
LEASE OR ANY EXHIBIT HERETO, OR ANY COURSE OF CONDUCT, COURSE OF DEALING OR
STATEMENTS (WHETHER VERBAL OR WRITTEN) MADE BY THE PARTIES HEREIN.
18.17 Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation, and that this Lease is binding upon said
corporation in accordance with its terms.
18.18 Representation of Landlord. Landlord represents and warrants that
(i) it holds fee or leasehold title to the Leased Property subject to the Lease
and has full power and authority to enter into this Lease; and (ii) each
individual executing this Lease on behalf of Landlord represents and warrants
that he is duly authorized to execute and deliver this Lease on behalf of the
corporate general partner of Landlord in accordance with a duly adopted
resolution of the Board of Directors of said corporation, and that this Lease is
binding upon Landlord in accordance with its terms.
22
18.19 Triple Net Lease. It is the intent of Landlord and Tenant that
this Lease shall be an absolute triple-net lease, and that all costs, expenses
or charges (including all ground lease rental payments with respect to Leased
Properties) with respect to the Leased Property are the responsibility of
Tenant.
18.20 Notices. Any notice provided or permitted to be given under this
Lease must be in writing and may be served by depositing same in the United
States mail, addressed to the party to be notified, postage prepaid and
certified, with return receipt requested, by delivering the same in person to
such party, by overnight delivery or by delivering the same by confirmed
facsimile. Notice given in accordance herewith shall be effective upon the
earlier of receipt at the address of the addressee or on the third (3rd) day
following deposit of same in the United States mail as provided for herein,
regardless of whether same is actually received. For purposes of notice, the
addresses of the parties shall be as follows:
If to Tenant: Sybra, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone No. 000-000-0000
Facsimile No. 000-000-0000
Attn: Xxxxxxx X. Xxxxxx
Copies To: Xxxxx X. Arabia
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Telephone No. 000-000-0000
Facsimile No. 000-000-0000
Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone No. 000-000-0000
Facsimile No. 212-326-0806
If to Landlord: U. S. Restaurant Properties Operating L. P.
5310 Harvest Hill Road, Xxxxx 000, Xxxx Xxx 000
Xxxxxx, Xxxxx 00000
Telephone No. 000-000-0000
Facsimile No. 000-000-0000
Either party may change its address for notice by giving ten (10) days prior
written notice thereof to the other party.
18.21 Primary Leases for Subleased Properties Controlling.
Notwithstanding anything contained herein to the contrary, with respect to
Buildings 785, 995, 899, 984, 1172, 1253, 1254, 1313, 1330, and 1434, as
designated on Exhibit C, Landlord's and Tenant's rights and obligations with
respect to such Building shall be governed by the primary lease ("Primary
Lease") of such Building between the fee owner thereof and Landlord or its
designated affiliate (as lessee), and such Primary Lease shall control over any
inconsistent provision in this Lease (other than, in case of default by Tenant
hereunder, Section 17 of this
23
Lease). Tenant shall pay to Landlord, or its designated affiliate, as additional
rent thereunder (and in addition to any amounts required to be paid pursuant to
Exhibit E) the rent required to be paid by Landlord under such Primary Lease,
plus, with respect to each such Primary Lease, $1.00 per month. Landlord shall
remit to the lessor under such Primary Lease the rental and additional rental
required thereunder, to the extent received from Tenant, but shall have no other
obligation thereunder, provided, however, Landlord shall, upon written request
of Tenant, use its best efforts (provided Tenant has indemnified Landlord
against all costs and expenses incurred in connection therewith) to cause the
landlord under such Primary Lease to comply with all covenants and
responsibilities of such landlord under the Primary Lease. Landlord agrees to
subordinate its lease with respect to Building 785 to a leasehold mortgagee, and
further agrees that if Tenant desires to engage in a sale-leaseback financing of
Building 785, it will amend the provisions of this lease as it affects Building
785 only to reasonably accommodate the requirements of such sale-leaseback
financing; provided, however, Tenant shall give Landlord thirty (30) days'
written notice of the terms of such sale-leaseback financing, and Landlord shall
have the right of first refusal to provide such sale-leaseback financing.
18.22 Purchase Option. During the initial two (2) years of this Lease,
Tenant shall have the option, by delivery of thirty (30) days written notice to
Landlord, to purchase the following Buildings: 1707, 5906, 5943, 6285, 6055,
6056, 6253, 6185, 6309, 6420 (the "Option Buildings"). The purchase option is
available only if Tenant agrees to acquire each of the Buildings subject to such
option. The purchase price shall be payable in cash in an amount equal to 102%
of the Purchase Price allocated to such Buildings on Exhibit C, with Tenant
paying all closing costs (i.e., title insurance premiums, transfer taxes,
recording costs, etc.) of acquiring the Buildings. Landlord shall convey the
Buildings by special warranty deed, subject only to such title exceptions
substantially similar to those existing upon Landlord's acquisition of the
Buildings. At closing, the Base Rent due hereunder shall be reduced by the Rent
Reduction Amount attributable to the Buildings purchased by Tenant. In the event
that Tenant does not exercise its option and Landlord receives an offer to
purchase the Option Buildings (or any one or more of such Option Buildings) that
is acceptable to Landlord, Landlord shall provide Tenant with written notice
("Notice") of all of the material terms and conditions of such offer, and shall
provide Tenant with a fifteen (15) day period from receipt of the Notice to
agree to purchase the Option Building(s) pursuant to the terms set forth in the
Notice. If Tenant does not accept such offer in the fifteen (15) day period from
receipt of the Notice, Landlord shall be entitled to sell the Option Buildings
pursuant to the terms set forth in the Notice at any time prior to the closing
date as set forth in the Notice, or as may be extended by the parties for a
period not exceeding ninety (90) days. This right of first refusal shall not
apply, however, to (i) sales of the Option Buildings to affiliates of Landlord,
(ii) consideration not payable in substantial part (i.e., more than 40%) in
cash, or (iii) sales where the Option Buildings are part of a portfolio of
properties where the Option Buildings constitute seventy-five percent (75%) or
less (in value) of the total assets transferred.
18.23 Landlord's Lien. As security for the performance of Tenant's
obligations under this Lease, Tenant grants to Landlord a lien upon and security
interest in Tenant's existing or hereafter acquired Equipment; provided,
however, that Landlord hereby does and shall continue to subordinate such lien
and security interest to any existing or future lien or security interest
granted by Tenant in or to any of the Equipment as security for indebtedness
provided by an institutional lender if (i) all or a part of such indebtedness is
used for the benefit of the business conducted by Tenant at the Leased Property
or to refinance such indebtedness existing, and (ii) such lender enters into an
Inter-Creditor Agreement with Landlord in form attached hereto as Exhibit I.
Landlord shall be entitled to exercise any and all rights and remedies at law
and in equity in connection with any rights of Landlord under this Section.
Subject to the rights of any lender described above, Tenant shall not, except in
the ordinary course of business, sell,
24
transfer or remove from the Leased Property the Equipment, unless the restaurant
location is closed, abandoned, assigned or sublet in compliance with the terms
of this Lease. Landlord shall prepare and Tenant shall execute a financing
statement to perfect the Landlord's lien and security interest.
LANDLORD:
U. S. RESTAURANT PROPERTIES OPERATING L. P.
By: U. S. RESTAURANT PROPERTIES, INC.
By: ___________________________________________
Name/Title: ___________________________________
TENANT:
SYBRA, INC.
By: ___________________________________________
Name/Title: ___________________________________
STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared _______________________________________,
______________________ of U. S. RESTAURANT PROPERTIES, INC., general partner of
U. S. RESTAURANT PROPERTIES OPERATING L. P., a Delaware limited partnership,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated,
and as the act and deed of said limited partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of _____________,
1997.
___________________________________
[SEAL] Notary Public, State of Texas
25
STATE OF ss.
ss.
COUNTY OF ss.
BEFORE ME, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared _______________________________________,
______________________ of SYBRA, INC., a Michigan corporation, known to me to be
the person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated, and as the act and deed of
said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of _____________,
1997.
___________________________________
[SEAL] Notary Public, State of
26
