(XXXXXXXX MANOR MALL, LOUISVILLE, JEFFERSON COUNTY, KENTUCKY)
SUBLEASE AGREEMENT
BY
TW-DIXIEBASH, LLC
("LESSOR")
AND
TUMBLEWEED, LLC
("LESSEE")
February 5, 1997
SUMMARY OF SELECTED SUBLEASE PROVISIONS
(XXXXXXXX MANOR MALL, LOUISVILLE, JEFFERSON COUNTY, KENTUCKY)
IMPORTANT NOTICE
THIS SUMMARY IS FOR CONVENIENCE AND REFERENCE ONLY. IT IS MERELY A SUMMARY AND,
THEREFORE, IS INCOMPLETE. FURTHERMORE, THIS SUMMARY IS SUBJECT TO THE
PROVISIONS OF THE SUBLEASE IN ITS ENTIRETY. IN THE EVENT OF ANY CONFLICT
BETWEEN THE PROVISIONS OF THIS SUMMARY AND ANY OF THE PROVISIONS OF THE
SUBLEASE, THE SUBLEASE PROVISIONS SHALL GOVERN.
Lessor . . . . . . . . . . . . . . TW-DixieBash, LLC
LESSEE . . . . . . . . . . . . . . Tumbleweed, LLC
SUBLEASE OF UNDERLYING
GROUND LEASE . . . . . . . . . . . Lessee becomes Lessor's sublessee on Ground
Lease and assumes all obligations
thereunder
SUBLEASED PREMISES . . . . . . . . Approximately 0.99 acres located in
Xxxxxxxx Manor Mall, Louisville, Jefferson
County, Kentucky (SEE EXHIBIT A for
detailed description)
TERM . . . . . . . . . . . . . . . 20 Years From Full Base Rent Commencement
Date
RENEWAL TERMS. . . . . . . . . . . None
BASE RENT BEFORE FULL BASE
RENT COMMENCEMENT DATE . . . . . . Amount equal to interest on the Total
Lessor Investment during such period at a
rate equal to the Agreed Rental Factor
BASE RENT AFTER THE FULL BASE
RENT COMMENCEMENT DATE . . . . . . $7,000 per month ($84,000 annualized)
NET CASH FLOW RENT . . . . . . . . 30% of Restaurant's net cash flow
INSURANCE. . . . . . . . . . . . . To be provided by Lessee
UTILITIES. . . . . . . . . . . . . To be provided by Lessee
REAL PROPERTY TAXES. . . . . . . . To be paid by Lessee
MAINTENANCE. . . . . . . . . . . . To be provided by Lessee
LESSEE'S OBLIGATION TO BUILD . . . Lessee to build Restaurant and Improvements
per agreed specifications and directions at
a reimbursed cost by Lessor not to exceed
$700,000 LESS Direct Lessor Expenditures
______________________________________________________________________________
Summary of Selected Provisions - Page i
SUBLEASE AGREEMENT
(XXXXXXXX MANOR MALL, LOUISVILLE, JEFFERSON COUNTY, KENTUCKY)
TABLE OF CONTENTS
1 GRANT OF SUBLEASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 SUBLEASED PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 CONSENT OF GROUND LEASE LANDLORD TO SUBLEASE; LESSOR'S ASSUMPTION OF
LESSEE'S OBLIGATIONS UNDER GROUND LEASE . . . . . . . . . . . . . . . . 1
2 TERM; HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 COMMENCEMENT AND EXPIRATION OF TERM; NO RENEWAL TERM. . . . . . . . 2
2.2 HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 RENT; NO SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 BASE RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 NET CASH FLOW RENT. . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 ADDITIONAL RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 DELINQUENT RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 SURVIVAL OF OBLIGATION TO PAY RENT. . . . . . . . . . . . . . . . . 6
4 USE OF THE SUBLEASED PREMISES; QUIET ENJOYMENT . . . . . . . . . . . . . . 7
4.1 GENERAL PURPOSES. . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 COMPLIANCE WITH LAWS. . . . . . . . . . . . . . . . . . . . . . . . 7
4.3 HAZARDS AND WASTE . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 GENERAL REPRESENTATIONS AND WARRANTIES OF LESSOR; QUIET ENJOYMENT . 7
5 INSURANCE; INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 FIRE AND HAZARD INSURANCE . . . . . . . . . . . . . . . . . . . . . 8
5.2 LIABILITY INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . 8
5.3 WORKERS' COMPENSATION AND UNEMPLOYMENT CONTRIBUTIONS. . . . . . . . 9
5.4 OTHER INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.5 CERTIFICATES OF INSURANCE . . . . . . . . . . . . . . . . . . . . . 9
5.6 WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . 9
5.7 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . .10
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Table of Contents - Page ii
SUBLEASE AGREEMENT
(XXXXXXXX MANOR MALL, LOUISVILLE, JEFFERSON COUNTY, KENTUCKY)
TABLE OF CONTENTS
6 RECONSTRUCTION AND EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . .10
6.1 CASUALTY, DESTRUCTION OR DAMAGE TO THE SUBLEASED PREMISES . . . . .10
6.2 EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . . . . . . . .12
7 UTILITIES; MAINTENANCE, ALTERATIONS AND REPAIRS; CONSTRUCTION OF SPECIFIED
BUILDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
7.1 UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
7.2 MAINTENANCE AND REPAIRS . . . . . . . . . . . . . . . . . . . . . .13
7.3 ALTERATIONS BY TENANT . . . . . . . . . . . . . . . . . . . . . . .14
7.4 MECHANICS OR MATERIALMEN'S LIENS. . . . . . . . . . . . . . . . . .15
7.5 SIGNS AND OTHER TRADE FIXTURES. . . . . . . . . . . . . . . . . . .15
7.6 LESSOR'S RIGHT OF ENTRY . . . . . . . . . . . . . . . . . . . . . .15
7.7 CONSTRUCTION OF SPECIFIED BUILDING. . . . . . . . . . . . . . . . .16
8 TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
8.1 ADDITIONAL RENT FOR REAL PROPERTY TAXES . . . . . . . . . . . . . .18
8.2 PERSONAL PROPERTY TAXES.. . . . . . . . . . . . . . . . . . . . . .18
8.3 INCOME TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . .19
9 ESTOPPEL CERTIFICATES; SUBORDINATION; ATTORNMENT . . . . . . . . . . . . .19
9.1 ESTOPPEL CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . .19
9.2 MORTGAGE SUBORDINATION. . . . . . . . . . . . . . . . . . . . . . .20
9.3 NONDISTURBANCE AGREEMENTS . . . . . . . . . . . . . . . . . . . . .20
9.4 DEFAULT OF LESSOR UNDER MORTGAGES . . . . . . . . . . . . . . . . .21
9.5 LESSEE'S NOTICE TO MORTGAGEES OF LESSOR'S DEFAULTS UNDER THIS
SUBLEASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
10 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
10.1 DEFAULT BY LESSEE; REMEDIES. . . . . . . . . . . . . . . . . . . .22
10.2 DEFAULT BY LESSOR. . . . . . . . . . . . . . . . . . . . . . . . .24
10.3 REMEDIES CUMULATIVE. . . . . . . . . . . . . . . . . . . . . . . .25
10.4 ATTORNEY FEES AND COSTS. . . . . . . . . . . . . . . . . . . . . .25
10.5 FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . . . .25
10.6 WAIVER OF CERTAIN DEFENSES . . . . . . . . . . . . . . . . . . . .25
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Table of Contents - Page iii
SUBLEASE AGREEMENT
(XXXXXXXX MANOR MALL, LOUISVILLE, JEFFERSON COUNTY, KENTUCKY)
TABLE OF CONTENTS
11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
11.1 ASSIGNMENT OR SUBLETTING . . . . . . . . . . . . . . . . . . . . .26
11.2 SUCCESSOR GROUND LEASE LANDLORD'S AND LESSOR'S LIABILITY . . . . .26
11.3 RELATIONSHIP OF THE PARTIES. . . . . . . . . . . . . . . . . . . .27
11.4 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . .27
11.5 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
11.6 NO WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
11.7 SEVERABILITY AND INVALIDITY. . . . . . . . . . . . . . . . . . . .29
11.8 CAPTIONS, HEADINGS AND SUMMARY . . . . . . . . . . . . . . . . . .29
11.9 SUCCESSORS AND PERMITTED ASSIGNS . . . . . . . . . . . . . . . . .29
11.10 GENDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
11.11 RECORDING . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
11.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . .30
11.13 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . .30
11.14 FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . . .30
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Table of Contents - Page iv
SUBLEASE AGREEMENT
(XXXXXXXX MANOR MALL, LOUISVILLE, JEFFERSON COUNTY, KENTUCKY)
INDEX OF DEFINED TERMS
--A--
Additional Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Agreed Rental Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
--B--
Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Base Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
--D--
Direct Lessor Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . 3
--F--
Full Base Rent Commencement Date . . . . . . . . . . . . . . . . . . . . . . 3
--G--
Ground Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Ground Lease Landlord. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
--L--
Lessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Lessee's Work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Lessor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Lessor Reimbursement Expenditures. . . . . . . . . . . . . . . . . . . . . . 3
--M--
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
Mortgages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
--N--
Net Cash Flow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Net Cash Flow Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Notice Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
--P--
Plans and Specifications . . . . . . . . . . . . . . . . . . . . . . . . . .16
Prime Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Project Architect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
--R--
Real Property Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Restaurant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
--S--
Specified Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Sublease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Subleased Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Substantial Portion. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
--T--
Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Total Lessor Investment. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Trade Fixtures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
______________________________________________________________________________
Index of Defined Terms - Page 5
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("SUBLEASE") is made and entered into as of the 5TH
day of FEBRUARY, 1997 by (I) TW-DIXIEBASH, LLC, a Kentucky limited liability
company (the "LESSOR"); AND (II) TUMBLEWEED, LLC, a Kentucky limited liability
company (the "LESSEE").
WITNESSETH:
IN CONSIDERATION OF the mutual covenants and agreements herein contained,
the parties agree as follows:
ARTICLE
1
GRANT OF SUBLEASE
________________________________________
1.1 SUBLEASED PREMISES
Pursuant to that certain GROUND LEASE AGREEMENT dated FEBRUARY 5,
1997 by and between Lessor, as the "Tenant," and XXXXXXXX MANOR MALL as the
"Landlord" ("GROUND LEASE LANDLORD"), a copy of which is attached hereto and
incorporated by reference herein as EXHIBIT A (as amended and subject to future
amendments, the "GROUND LEASE"), Lessor hereby subleases to Lessee, and Lessee
hereby subleases from Lessor, for the Term (as hereinafter defined), at the
rental and upon all of the conditions set forth herein, that certain real
property and all improvements thereon and fixtures and appurtenances thereto
located at XXXXXXXX MANOR MALL LOCATED IN JEFFERSON COUNTY, KENTUCKY as more
particularly described on EXHIBIT B attached hereto and made a part hereof,
INCLUDING BUT NOT LIMITED TO, any fixtures, buildings, or other improvements or
alterations constructed, added or made by Lessor or Lessee during the Term and
all of Lessor's easements and appurtenances in, over, and upon adjoining and
adjacent public and private land, xxxxxxxx, xxxxx, xxxxxxx, xxxxx and other
areas reasonably required for ingress and egress and for the installation,
maintenance, operation and service of utilities (the "SUBLEASED PREMISES").
1.2 CONSENT OF GROUND LEASE LANDLORD TO SUBLEASE; LESSOR'S ASSUMPTION
OF LESSEE'S OBLIGATIONS UNDER GROUND LEASE
Ground Lease Landlord has consented to this Sublease pursuant to
Section 10.01 of the Ground Lease. Lessee hereby assumes and shall be obligated
to perform, as sublessee under the Ground Lease, all of the rental payment and
other obligations of Lessor under the Ground Lease during the Term, and in this
regard,
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Text of Agreement - Page 1
Lessee shall, on Lessor's behalf, pay to Ground Lease Landlord all rent
amounts as specified in Section 2.01 under the Ground Lease.
ARTICLE
2
TERM; HOLDING OVER
________________________________________
2.1 COMMENCEMENT AND EXPIRATION OF TERM; NO RENEWAL TERM.
The Term of this Sublease shall commence as of the date hereof
and shall end TWENTY (20) YEARS AFTER THE FULL BASE RENT COMMENCEMENT DATE
(defined below), unless sooner terminated in accordance with the terms and
conditions set forth herein (the "TERM"). There shall be no renewal term(s).
2.2 HOLDING OVER
In the absence of a written agreement to the contrary or written
renewal of this Sublease, if Lessee remains in possession of the Subleased
Premises after the expiration of the Term or the sooner termination of this
Sublease, Lessee, at the option of Lessor, shall be deemed to be occupying the
Subleased Premises as a tenant from month-to-month at 150% of the then Base
Rent, subject to all of the conditions, provisions and obligations of this
Sublease insofar as the same are applicable to a month-to-month tenancy, and
either party may terminate such month-to-month tenancy on 30 days' notice to the
other.
ARTICLE
3
RENT; NO SECURITY DEPOSIT
________________________________________
3.1 BASE RENT
(a) DETERMINATION OF BASE RENT
In addition to paying all rent as due under the Ground
Lease (which shall be paid directly to Ground Lease Landlord on Lessor's
behalf), Lessee shall pay Lessor, pursuant to this Sublease, a minimum
guaranteed rental (the "BASE RENT") with respect to each month during the Term
determined in accordance with the following schedule (PROVIDED, HOWEVER, that
the Base Rent for any partial month during the Term shall be prorated in
accordance with the ratio of the number of days of such month within the Term to
the total number of days of such month):
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Text of Agreement - Page 2
PERIOD BASE RENT
During the Term, but Amount equal to interest on the Total Lessor
before Full Base Rent Investment (as hereinafter defined) during such
Commencement Date(2) period at a rate equal to the Agreed Rental Factor
(as hereinafter defined)
During the Term, but $7,000 per month (1)
after Full Base Rent
Commencement Date(2)
(1) Adjusted to 12% of Total Lessor Investment (as hereinafter
defined) if Total Lessor Investment is less than $700,000.00.
(2) Consistent in all respects with the Ground Lease, the FULL BASE
RENT COMMENCEMENT DATE shall mean THE EARLIER TO OCCUR OF (i) the
date Lessee first derives revenues from the sale of food and
beverages in the ordinary course of its Restaurant business upon
the Subleased Premises OR (ii) 180 days after Lessee first
commences LESSEE'S WORK (defined below).
(b) TOTAL LESSOR INVESTMENT
For all purposes of this Sublease, the term "TOTAL LESSOR
INVESTMENT" as of any date shall mean THE SUM OF (i) the amounts paid by Lessor
through such date in connection with the leasing of, and obtaining rights to,
the Subleased Premises, INCLUDING, BUT NOT LIMITED TO, "soft costs" such as
legal fees, title, environmental assessment, and survey expenses, real estate
agent and broker commissions, permit and license fees, engineering fees, and
architectural fees (the "DIRECT LESSOR EXPENDITURES"), (ii) the amounts paid by
Lessor to Lessee as reimbursement for Lessee's Work with respect to the
Specified Building as hereinafter provided (the "LESSOR REIMBURSEMENT
EXPENDITURES," AND (iii) any amounts treated as part of the Total Lessor
Investment pursuant to the provisions of Section 7.7(b) hereof. Notwithstanding
any other provision of this Sublease which might be construed to the contrary,
it is the parties' intention and agreement that the Total Lessor Investment, in
the aggregate, will not exceed the sum of $700,000.00 at any time, and at no
time shall Lessor have any obligation to pay any amount to Lessee as a Lessor
Reimbursement Expenditure to the extent that such payment would cause the Total
Lessor Investment as of such time to exceed the sum of $700,000.00.
(c) AGREED RENTAL FACTOR
For all purposes of this Sublease, the term "AGREED RENTAL
FACTOR" to be applied with respect to any funds constituting a part of the Total
Lessor Investment during any period shall mean a rate equal to THE GREATER OF
(i) the interest rate per annum paid by Lessor to a bank or other commercial
lending institution with
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Text of Agreement - Page 3
respect to such funds, if and to the extent such funds have been borrowed by
Lessor, PLUS 1% PER ANNUM, OR (ii) the interest rate per annum most recently
designated by BANK OF LOUISVILLE AND TRUST COMPANY, Louisville, Kentucky (the
"BANK"), as its "Prime Rate" in effect during such period, as the same may be
changed from time to time by the Bank during such period (the "PRIME RATE"),
PLUS 1% PER ANNUM.
(d) PAYMENT OF THE BASE RENT
Before the Full Base Rent Commencement Date, the Base Rent
shall be due and payable on a monthly basis, within FIVE (5) DAYS following
demand by Lessor setting forth the amount thereof based on the outstanding
balance of the Total Lessor Investment during the immediately preceding calendar
month and the applicable Agreed Rental Factor with respect thereto. After the
Full Base Rent Commencement Date, the Base Rent shall be due and payable in
advance on the 1st day of such month, without prior demand therefor. Unless
otherwise directed by Lessor in writing, Lessee shall pay the Base Rent due and
payable at any time to Lessor at the address for Lessor which is then applicable
as to notices under the provisions of Section 11.5 below.
3.2 NET CASH FLOW RENT
(a) DETERMINATION OF NEW CASH FLOW RENT
In addition to Base Rent, Lessee shall pay Lessor, as
additional rental with respect to each calendar year (or partial calendar year)
during the Term of this Sublease, an amount equal to THIRTY PERCENT (30%) of
Lessee's positive Net Cash Flow, if any, from any operations or activities
conducted on or related to the Leased Premises and/or the Restaurant (as
hereinafter defined) located thereon (the "NET CASH FLOW RENT"). Under no
circumstances shall Lessor have any liability to Lessee or any other person at
any time for any negative Net Cash Flow of Lessee. Nothing in this Sublease
shall be construed as creating any partnership, joint venture, agency, or
similar relationship between Lessor and Lessee, and under no circumstances shall
Lessor have any liability or responsibility whatsoever for any obligations or
liabilities of Lessee.
(b) DEFINITION OF NET CASH FLOW
The term "NET CASH FLOW" with respect to any calendar year
(or partial calendar year) during the Term shall mean Lessee's net cash flow
from store-level operations and activities conducted on or related to the Leased
Premises and/or the Restaurant (as hereinafter defined), as reflected in
Lessee's financial statements, prepared in accordance with generally acceptable
accounting practices consistently applied, BUT WITHOUT REGARD TO ANY
(i) overhead, corporate burden, or other such charges, (ii) depreciation,
amortization and other noncash types of expenditures or
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Text of Agreement - Page 4
accruals, AND (iii) financing or investment charges (OTHER THAN normal
equipment leasing charges), as the case may be, which are otherwise reflected
in such financial statements.
(c) PAYMENT OF NET CASH FLOW RENT
The portion of the Net Cash Flow Rent for each calendar
year (or partial calendar year) during the Term which is attributable to the Net
Cash Flow for each calendar quarter of such year shall be estimated as of the
end of such calendar quarter based upon the interim statement of operations for
such calendar quarter, and such estimated quarterly payment of the Net Cash Flow
Rent, if any, shall be due and payable within 15 days after the end of such
calendar quarter, without prior demand therefor. The actual Net Cash Flow Rent
for each calendar year (or partial calendar year) shall then be finally computed
upon finalization of the audited financial statements of Lessee for such year,
and the difference, if any, between the actual amount so determined and the
total of all of the estimated payments thereof previously paid to Lessor shall
be either (i) paid by Lessee to Lessor, if the finally determined amount is
greater than the aggregate estimated amounts previously paid, OR (ii) paid by
Lessor to Lessee if the finally determined amount is less than the aggregate
estimated amounts previously paid (but such obligation of Lessor to repay any
such amounts shall be limited to the aggregate of all estimated amounts
previously paid by Lessee to Lessor with respect to such calendar year (or
partial calendar year only). The Net Cash Flow Rent shall be conclusively
determined on an annual basis, and the Net Cash Flow Rent for any calendar year
(or partial calendar year) during the Term shall not be reduced or otherwise
affected by any negative Net Cash Flow of Lessee for any prior or subsequent
calendar year (or partial calendar year). Unless otherwise directed by Lessor in
writing, Lessee shall pay the Net Cash Flow Rent due and payable at any time to
Lessor at the address for Lessor which is then applicable as to notices under
the provisions of Section 11.5 below.
(d) RETAIL RESTRICTION LIMIT/FAILURE TO OPERATE
The parties acknowledge that the realization of the
benefits of the Net Cash Flow Rent are dependent upon Lessee maximizing its
gross sales and that failure to operate, or self-competition, is inconsistent
with the generation of appropriate levels of Net Cash Flow Rent. The parties
further acknowledge that Base Rent was negotiated together with, and giving
consideration to, the Net Cash Flow Rent and that self-competition or failure to
operate by Lessee will deprive Lessor of a bargained-for consideration.
Accordingly, Lessee covenants and agrees that during the Term (i) Lessee will
not, directly or indirectly, engage in any business similar to, or in
competition with, the business operated on the Subleased Premises within a
radius of TWO (2) MILES from the Subleased Premises AND (ii) Lessee shall use
its reasonable best efforts to operate its Restaurant (as hereinafter defined)
in the Subleased Premises with reasonable due diligence and efficiency so as to
maximize, to the extent
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Text of Agreement - Page 5
reasonably and economically feasible, the Net Cash Flow Rent which may be
produced by such manner of operation. Subject to matters beyond the
reasonable control of Lessee, Lessee shall carry at all times in the
Subleased Premises such inventories of food, liquor, and other goods as shall
be reasonably designed to maximize, to the extent reasonably and economically
feasible, the return to Lessor and Lessee. Lessee shall generally operate
seven days a week at such hours as are customary for similar restaurants in
the geographic area of the Subleased Premises.
3.3 ADDITIONAL RENT
In addition to Base Rent and Net Cash Flow Rent, Lessee shall
pay, as additional rent, certain amounts with respect to taxes, maintenance and
other factors as provided under other provisions of this Sublease (collectively,
the "ADDITIONAL RENT"). For all purposes of this Sublease, the term "RENT" shall
include all Base Rent, Net Cash Flow Rent, Additional Rent, and rent or other
amounts due and payable under the Ground Lease.
3.4 DELINQUENT RENT
Each unpaid installment or payment of Rent or other amount
required to be paid by Lessee to Lessor under this Sublease shall bear interest
from TEN (10) DAYS after the date on which such Rent or other amount is due and
payable at the Prime Rate plus 2% PER ANNUM; PROVIDED, HOWEVER, that the accrual
or payment of such interest shall not serve to correct any default nor affect in
any way Lessor's rights or remedies upon default.
3.5 SECURITY DEPOSIT
There shall be no security deposit required under this Sublease.
3.6 SURVIVAL OF OBLIGATION TO PAY RENT
Lessee's obligation to pay all Rent when due shall survive the
expiration or sooner termination of the Term.
ARTICLE
4
USE OF THE SUBLEASED PREMISES; QUIET ENJOYMENT
4.1 GENERAL PURPOSES
Lessee shall use or permit the use of the Subleased Premises for
a Tumbleweed-Registered Trademark- full service restaurant ("RESTAURANT") and
such other activities as are incidental thereto, and Lessee may not use or
permit the use of the Subleased
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Premises for any other use or purposes without the prior written consent of
Lessor, which approval shall not be unreasonably withheld.
4.2 COMPLIANCE WITH LAWS
Lessee, at its sole cost and expense, shall comply in all
material respects, and shall cause the Subleased Premises to comply in all
material respects, with all statutes, laws, ordinances and governmental codes,
rules and regulations now or hereafter applicable to the Subleased Premises,
INCLUDING, BUT NOT LIMITED TO, all federal, state or local environmental laws,
all fire, health or safety codes, all zoning rules and regulations, and any
laws, ordinances, codes, rules or regulations which require the making of any
structural or non-structural repairs, alterations or improvements to the
Subleased Premises.
4.3 HAZARDS AND WASTE
Lessee shall not create or permit any hazard, nuisance, menace or
waste in, on or about the Subleased Premises.
4.4 GENERAL REPRESENTATIONS AND WARRANTIES OF LESSOR; QUIET ENJOYMENT
Lessor represents and warrants to Lessee that:
(a) POWER AND AUTHORITY
Lessor is the Tenant pursuant to the Ground Lease, has the
authority to sublease the Subleased Premises to Lessee, and otherwise has full
power and authority to execute and perform its obligations under this Sublease.
(b) LIENS AND ENCUMBRANCES
During the Term, the Subleased Premises shall be free and
clear of all liens and encumbrances superior to the leasehold interests of
Lessee under this Sublease, EXCEPT (i) those liens and encumbrances of record as
of the date Lessor subleased the land from Ground Lease Landlord comprising the
Subleased Premises (or liens or encumbrances in substitution or renewal
thereof), (ii) those liens, encumbrances or mortgages which may be placed on the
Subleased Premises by or with the specific written consent of Lessor, Lessee or
Ground Lease Landlord in connection with any buildings or other improvements
required to be built by Lessee under this Sublease or the Ground Lease,
(iii) those liens or encumbrances which may be placed on the Subleased Premises
by or with the specific written consent of Lessor in compliance with the
provisions of Sections 9.2 and 9.3 hereof, (iv) existing zoning ordinances which
affect the Subleased Premises or which may hereafter exist during
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the Term, (v) easements for public utilities and easements of any public
highways, AND (vi) the lien of real estate ad valorem taxes not then due and
payable.
(c) QUIET ENJOYMENT
During the Term, PROVIDED, HOWEVER, that Lessee is not in
default under this Sublease, Lessee shall peaceably hold and have quiet
enjoyment of the Subleased Premises free from interference from anyone lawfully
claiming any interest in the Subleased Premises (but subject to the terms and
conditions of this Sublease).
(d) TAXES
All taxes on the Subleased Premises, EXCEPT current taxes
not due and payable, have been paid in full.
ARTICLE
5
INSURANCE; INDEMNIFICATION
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5.1 FIRE AND HAZARD INSURANCE
Lessee, at Lessee's expense, shall obtain and keep in force at
all times during the Term of this Sublease one or more policies of insurance
covering loss or damage to the Subleased Premises in the amount of the full
replacement value thereof. Such policies shall provide protection against all
perils included within the classifications of fire, extended coverage,
vandalism, malicious mischief and special extended perils (all risks) and shall
name Lessor and Ground Lease Landlord as an additional insured.
5.2 LIABILITY INSURANCE
Lessee, at Lessee's expense, shall obtain and keep in force at
all times during the Term of this Sublease one or more insurance policies of
comprehensive public liability insurance insuring Lessor, Ground Lease Landlord
and Lessee against all liability arising out of the ownership, use, occupancy,
or maintenance of the Subleased Premises, with policy limits of no less than
$5,000,000.00 with respect to injuries to, or death of, any persons on the
Subleased Premises, or occurrences of any property damage to third parties
caused on the Subleased Premises, whether or not caused by any of Lessee's
employees, agents, representatives, guests or invitees.
5.3 WORKERS' COMPENSATION AND UNEMPLOYMENT CONTRIBUTIONS
If the nature of Lessee's operation is such as to place any or
all of its employees under the coverage of local workers' compensation or
similar statutes and/or unemployment compensation schedules, Lessee shall also
keep in force, at
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Lessee's expense, workers' compensation or similar insurance affording
statutory coverage and containing statutory limits, and shall make all
unemployment compensation contributions required by law.
5.4 OTHER INSURANCE
Lessee shall be responsible for obtaining, at Lessee's expense,
business interruption insurance which will cover the payment of Rent and other
charges due hereunder for at least TWELVE (12) MONTHS and insurance on the
equipment, inventory, merchandise, supplies and other property of Lessee on or
about the Subleased Premises in a commercially reasonable amount. Lessee, on its
behalf and on its insurers' behalf, hereby expressly waives any and all claims
against Lessor for loss or damage to Lessee's equipment, inventory, merchandise,
supplies and other property on or about the Subleased Premises due to fire,
explosion, windstorm, or any other casualty, or due to any other cause
whatsoever, regardless whether Lessee or Lessor has procured insurance thereon
and regardless of the cause of such loss or damage, INCLUDING, BUT NOT LIMITED
TO, loss or damage resulting from the negligence of Lessor or Lessor's partners,
officers, managers, members, directors, employees, agents, or representatives.
5.5 CERTIFICATES OF INSURANCE
Lessee shall deliver to Lessor copies of the insurance policies
required under Sections 5.1 through 5.4 hereof and certificates evidencing the
existence and amounts of such insurance with loss payable clauses satisfactory
to Lessor. No such policy shall be cancelable or subject to reduction of
coverage or other modification EXCEPT after at least 10 DAYS' prior written
notice to Lessor. Lessor shall, within 10 DAYS prior to the expiration of any
policy, furnish Lessor with renewals or "binders" thereof, or Lessor may order
such insurance and charge the cost thereof to Lessee, which amount shall be
payable by Lessee to Lessor upon demand of Lessor or the applicable insurance
company.
5.6 WAIVER OF SUBROGATION
Lessor and Lessee each hereby waives any and all rights of
recovery against the other, or against the partners, officers, managers,
members, directors, employees, agents and representatives of the other, for loss
or damage to such waiving party or its property or the property of others under
its control, to the extent such damage or destruction is insured in favor of
such party against under any insurance policies in force at the time of such
loss or damage. The provisions of this Section 5.6 shall be effective during the
Term for so long as such provisions do not prohibit securing insurance coverage
from responsible insurance companies by either party after a good faith effort.
Lessor and Lessee shall give notice to its insurance carrier(s) that the
foregoing mutual waiver of subrogation is contained in this Sublease and
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attempt in good faith to cause its insurance policies with respect to the
Subleased Premises, and the property contained therein, to be endorsed to
permit the foregoing waiver of subrogation.
5.7 INDEMNIFICATION
Lessee shall indemnify Lessor and save and hold Lessor harmless
from and against any and all claims, actions, damages, liabilities, and expenses
in connection with loss of life, personal injury and/or damage to property
arising from, out of, or in connection with the occupancy or use by Lessee of
the Subleased Premises or any part thereof; PROVIDED, HOWEVER, that this
indemnification by Lessee shall not extend to acts of negligence of Lessor, or
Lessor's officers, managers, members, directors, partners, employees, agents, or
representatives, or to events or accidents which occur as a result of Lessor's
failure to perform its obligations under this Sublease. In the event Lessor
shall, without any fault on its part, be made a party to any litigation
commenced by or against Lessee, or against Lessor as a result of any action or
inaction by Lessee in connection with the Subleased Premises, then Lessee shall
protect and hold Lessor harmless and shall pay all costs, expenses, and
reasonable attorneys fees incurred or paid by Lessor in connection with such
litigation.
ARTICLE
6
RECONSTRUCTION AND EMINENT DOMAIN
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6.1 CASUALTY, DESTRUCTION OR DAMAGE TO THE SUBLEASED PREMISES
(a) OBLIGATION TO RESTORE MINOR DAMAGE
If the Subleased Premises are damaged by fire or other
casualty as to make 25% OR LESS of the rentable square footage of the buildings
constituting a part of the Subleased Premises untenantable and such loss is
fully covered by insurance obtained by Lessee as required under this Sublease,
Lessor shall repair or restore the Subleased Premises to substantially the same
condition as before the damage as soon as reasonably practicable to the extent
of available insurance proceeds.
(b) OPTIONS IF SUBSTANTIAL DAMAGE; NOTICE
If the Subleased Premises are damaged so substantially by
fire or other casualty as to make MORE THAN 25% of the rentable square footage
of the buildings constituting a part of the Subleased Premises untenantable,
Lessor shall have 30 DAYS (the "NOTICE PERIOD") from the date of such damage to
notify Lessee whether Lessor elects to repair and restore the Subleased Premises
to substantially the same condition as before the damage; PROVIDED, HOWEVER,
that if such damage to the Subleased Premises occurs at a time when the
remainder of the Term is 12 MONTHS OR
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Text of Agreement - Page 10
LESS, then, notwithstanding any other provision hereof which might be
construed to the contrary, Lessee may, at Lessee's option and upon at least
10 DAYS' prior written notice to Lessor, terminate this Sublease without
penalty or liability, upon which termination Lessee shall promptly surrender
the Subleased Premises to Lessor.
(c) LESSOR'S ELECTION NOT TO RESTORE OR FAILURE TO GIVE NOTICE
If Lessor notifies Lessee within the Notice Period that
Lessor elects not to repair or restore the Subleased Premises, or if Lessor
fails or neglects to notify Lessee within the Notice Period that Lessor plans to
repair and restore the Subleased Premises, then, in either case, Lessee may, at
its option, within 30 DAYS after the expiration of the Notice Period, terminate
this Sublease and surrender the Subleased Premises to Lessor. Unless so
terminated, this Sublease shall remain in full force and effect for the
remainder of the Term as to the usable portion of the Subleased Premises.
(d) LESSOR'S ELECTION TO RESTORE
If Lessor notifies Lessee during the Notice Period that
Lessor elects to restore and repair the Subleased Premises, then this Sublease
shall remain in full force and effect; PROVIDED, HOWEVER, that if Lessor fails
to commence such repairs and restoration within a reasonable time thereafter or
fails to pursue and implement such repairs and restoration with reasonable
diligence (subject only to events beyond Lessor's control as provided in Section
10.5 hereof, then Lessee, at Lessee's option, may cancel this Sublease and
surrender the Subleased Premises to Lessor.
(e) NO REDUCTION OF RENT
Lessee is required to obtain and maintain in full force
and effect during the Term certain business interruption or other insurance.
Accordingly, if this Sublease remains in effect following damage to the
Subleased Premises by fire or other casualty, the Rent shall not be reduced or
abated.
(f) LESSEE'S CONTINUING OBLIGATION TO INSURE
Any termination by the Lessee of the Sublease under this
Section 6.1 shall not relieve Lessee of any liabilities to Lessor regarding
Lessee's responsibility for having insured the Subleased Premises for the
benefit and interest of Lessor as provided under this Sublease.
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6.2 EMINENT DOMAIN
(a) TERMINATION OF SUBLEASE AS TO PORTION OF SUBLEASED
PREMISES TAKEN
In the event that all or any portion of the Subleased
Premises is taken under the power of eminent domain by any competent authority,
this Sublease shall terminate as to the part so taken as of the date on which
Lessee is required to yield possession thereof to the taking authority.
(b) TAKING OF LESS THAN A SUBSTANTIAL PORTION OF THE SUBLEASED
PREMISES
If the taking of a portion of the Subleased Premises is
not a Substantial Portion, then Lessor shall make all repairs, alterations and
replacements as may be necessary in order to restore the portion of the
Subleased Premises not taken to useful condition to the extent of the available
condemnation award and the Rent shall be reduced on an equitable basis to take
into account the elimination of the portion of the Subleased Premises taken.
(c) TAKING OF A SUBSTANTIAL PORTION OF THE SUBLEASED PREMISES
If the taking of a portion of the Subleased Premises
substantially impairs the usefulness of the Subleased Premises for the purposes
for which the Subleased Premises were being used by Lessee immediately prior to
the taking, then either Lessor or Lessee shall have the option to terminate this
Sublease as of the date on which Lessee is required to yield possession of the
portion taken to the taking authority, which option shall be exercised by Lessor
or Lessee by written notice delivered to the other of them on or prior to such
date. Unless this Sublease is so terminated, Lessor shall make all repairs,
alterations and replacements as may be necessary in order to restore the portion
of the Subleased Premises not taken to as useful a condition as is practicable
to the extent of available condemnation proceeds and the Rent shall be reduced
on an equitable basis to take into account the elimination of the portion of the
Subleased Premises taken.
(d) SUBSTANTIAL PORTION
For all purposes of this Sublease, the term "SUBSTANTIAL
PORTION" (i) any part of the building on the Subleased Premises, (ii) 10% OR
MORE of the parking spaces on the Subleased Premises, (iii) 15% OR MORE of the
land area demised as part of the Subleased Premises, (iv) any property which
materially and adversely affects the direct access from the Subleased Premises
to any adjacent street or highway, AND (iv) any portion of the land or
improvements, the absence of which is reasonably likely
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to have a substantial impact on the business of Lessee conducted in, on, or
from the Subleased Premises.
(e) CONTESTING TAKING; ALLOCATION OF PROCEEDS
Only Lessor shall have the right to contest any proposed
or declared taking or condemnation of any of the leasehold interests in the
Subleased Premises. All compensation awarded for taking of the leasehold
interests in the Subleased Premises shall belong to and be the property of
Lessor, PROVIDED, HOWEVER, that Lessee shall have the right to make a separate
claim for its own award for the compensation of its moving or relocation
expenses or losses relating to Lessee's Trade Fixtures (as hereinafter defined).
ARTICLE
7
UTILITIES; MAINTENANCE, ALTERATIONS AND REPAIRS;
CONSTRUCTION OF SPECIFIED BUILDING
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7.1 UTILITIES
Lessee shall timely pay for all heat, water, sewer service, gas,
electricity, telephone, cable television and other utilities and services used
in or about the Subleased Premises, and all such utilities and services, as
applicable, shall be metered to the Subleased Premises in Lessee's name.
7.2 MAINTENANCE AND REPAIRS
(a) LESSEE'S GENERAL OBLIGATION TO MAINTAIN
Lessee, at Lessee's expense, shall maintain the Subleased
Premises and all additions thereto and improvements thereof in good repair and
condition throughout the Term and shall yield up the Subleased Premises upon the
expiration or sooner termination of this Sublease in broom clean condition and
in as good and tenantable condition as the Subleased Premises were in at the
beginning of the Term or at the time later added to the Subleased Premises, as
the case may be, normal wear and tear excepted.
(b) SPECIFIC MAINTENANCE OBLIGATIONS OF LESSEE
In furtherance of, and not by way of limitation of,
Lessee's obligations under Section 7.2(a) hereof, Lessee, at Lessee's expense,
shall be responsible for all repairs, replacements and maintenance required with
respect to the Subleased Premises, INCLUDING, BUT NOT LIMITED TO, the repair
and/or replacement of (i) any burst, stopped or leaking water, gas, sewer or
other pipes or plumbing fixtures or
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equipment, (ii) any dysfunctional or malfunctioning lighting, electrical, or
heating, ventilation and air conditioning components, circuits, facilities or
systems, (iii) any fences, parking areas, sidewalks, driveways, landscaping
and signs, (iv) any sprinklers or other fire or smoke alarm or control
devices, AND (v) any foundations, structural components, exterior or interior
walls and surfaces, roofs, gutters, downspouts, ceilings, windows and doors.
(c) WAIVER OF LESSOR LIABILITY
Lessor shall not be responsible or liable to Lessee for
any loss or damage resulting from any cause whatsoever, INCLUDING, BUT NOT
LIMITED TO, any loss or damage from any burst, stopped or leaking water, gas,
sewer or other pipes or plumbing fixtures or equipment, or from any failure of
or defect in any lighting, electrical, or heating, ventilation and air
conditioning components, circuits, facilities or systems.
7.3 ALTERATIONS BY TENANT
(a) NONSTRUCTURAL INTERIOR ALTERATIONS
Without any necessity of obtaining Lessor's consent,
Lessee, at Lessee's expense, may from time to time during the Term make any
interior alterations, additions or improvements in and to the Subleased Premises
which Lessee may deem advisable and which do not affect the structural
components of any building or other improvement. Any such interior alteration,
addition or improvement shall be made in a first class workmanship manner and in
accordance with all valid requirements of municipal or other governmental
authorities.
(b) STRUCTURAL ALTERATIONS
Lessee shall not make any structural additions or other
alterations to, nor remove or demolish, any building or other improvement
constituting a part of the Subleased Premises without the prior written consent
of Lessor, which shall not be unreasonably withheld.
(c) ALTERATIONS BECOME PART OF SUBLEASED PREMISES
Lessee agrees that any and all improvements or alterations
to the Subleased Premises shall immediately become the property of the Lessor
and shall remain upon and as part of the Subleased Premises.
7.4 MECHANICS OR MATERIALMEN'S LIENS
Unless Lessee shall contest the validity thereof as hereinafter
provided, Lessee shall not allow any mechanic's, materialman's or other liens to
be filed against the Subleased Premises or any part thereof as a result of any
act of omission by
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Text of Agreement - Page 14
Lessee. Lessee may contest, by appropriate proceedings, the amount, validity
or application of any mechanic's, materialman's or other lien filed against
the Subleased Premises or any part thereof so long as (i) no part of the
Subleased Premises would be subject to loss, sale or forfeiture before
determination of such contest, (ii) Lessor is not subject to any criminal
penalty as a result of the failure to pay such lien, AND (iii) Lessee
conducts all such contests, at Lessee's expense, with due diligence and in
good faith. If required by Lessor's mortgagee, Lessee shall cause any such
lien to be discharged of record by posting a bond.
7.5 SIGNS AND OTHER TRADE FIXTURES
Lessee may construct, build, or install on the Subleased Premises
any and all racks, counters, tables, shelves, signage and other trade fixtures
and equipment of every kind or nature which might be necessary or desirable to
the Lessee's use of the Subleased Premises for permitted purposes (collectively,
the "TRADE FIXTURES"). All such Trade Fixtures shall at all times be and remain
the property of Lessee and, so long as Lessee is not in default under this
Sublease, Lessee shall have the right to remove all or any part of the Trade
Fixtures from the Subleased Premises at any time during, or upon the expiration
or sooner termination of, the Term; PROVIDED, HOWEVER, that Lessee shall repair
or reimburse Lessor for the full costs of repairing any damage to the Subleased
Premises resulting from the installation or removal of such Trade Fixtures. It
is specifically understood and agreed that all trademarks, trade names, service
marks, signs, and other marks of identification used by Lessee in Lessee's
business shall remain the exclusive property of Lessee at all times, and Lessor
shall have no right, title or interest in or to any of such trademarks, trade
names, service marks, signs or other marks of identification.
7.6 LESSOR'S RIGHT OF ENTRY
Lessor and Lessor's employees and agents shall have the right to
enter the Subleased Premises from time to time during reasonable hours and upon
reasonable notice to Lessee (or at any time with or without notice in the event
of any emergency) in order to (i) examine the Subleased Premises, (ii) make such
repairs and alterations as may be necessary for the safety and preservation of
the improvements on the Subleased Premises (the cost of which repairs and
alterations shall be borne by Lessee), but without any obligations to make any
such repairs or alterations, OR (iii) exhibit the Subleased Premises for sale or
Sublease and place one or more "For Sale or Rent" signs on the Subleased
Premises during the 6 months immediately preceding the expiration of the Term,
which signs shall not be removed by Lessee.
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7.7 CONSTRUCTION OF SPECIFIED BUILDING.
(a) LESSEE'S OBLIGATION TO CONSTRUCT SPECIFIED BUILDING.
Lessee covenants and agrees to proceed with due diligence,
at Lessee's expense, to perform Lessee's Work (as hereinafter defined) and erect
or cause to be erected on the Subleased Premises a permanent building
(containing approximately 5,400 square feet of usable space) and related
improvements and site work (collectively, the "SPECIFIED BUILDING"). The
Specified Building shall be based on, and constructed substantially in
accordance with, the 5,400 SQUARE FOOT prototype Tumbleweed restaurant plans and
designs (the "PLANS AND SPECIFICATIONS") prepared by the architectural firm of
WOLFGANG & DOERSCHLAG (the "PROJECT ARCHITECT"), SUBJECT, HOWEVER, to such
changes as may be required from time to time by reason of the specific site
location or in order to obtain building permits. All design, architectural,
engineering, excavation and construction work shall be performed in a first
class workmanship manner and in accordance with all applicable building codes
and other requirements of governmental authorities. The work necessary to
construct the specified building in accordance with the plans and specifications
is referred to herein as "LESSEE'S WORK". Unless and until the Total Lessor
Investment equals $700,000.00, Lessor shall reimburse Lessee for Lessee's
expenditures incurred in connection with the Lessee's Work. Such reimbursement
shall be made by Lessor within TEN (10) DAYS after Lessee requests such
reimbursement and submits to Lessor such receipts, invoices, architect's
certificates, contractor or subcontractor lien waivers, and/or other documents
as Lessor or any lender to Lessor may reasonably require. Lessee's Work shall be
deemed completed upon certification by the Project Architect that Lessee's Work
is substantially complete and issuance of a certificate of occupancy for the
Subleased Premises. Lessee shall indemnify Lessor and hold Lessor harmless from
and against any loss, claim, or expense, including damage to property, injuries
to person, or mechanics' or materialmen's liens arising out of the performance
of Lessee's Work by Lessee, its employees, agents, and contractors.
(b) COMMENCEMENT AND COMPLETION OF CONSTRUCTION.
Lessee agrees that the construction of the Specified
Building shall commence in the time frame specified in the Ground Lease, and
such construction shall be diligently pursued thereafter until completed. If the
Specified Building is not completed within SIX (6) MONTHS after commencement
(unless such noncompletion is due to circumstances beyond the reasonable control
of Lessee), Lessor may, at Lessor's sole option, take over the completion of the
Specified Building and all sums expended for such purpose by Lessee shall
constitute a part of the Total Lessor Investment UNLESS AND UNTIL the payment of
any such amount would cause the Total Lessor Investment to exceed $700,000.00,
in which case any such excess amount paid by Lessor shall be immediately repaid
to Lessor by Lessee upon demand.
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(c) LESSEE'S EQUIPMENT AND TRADE FIXTURES.
In addition to performing the scope of Lessee's Work,
Lessee shall be responsible for installing its equipment and Trade Fixtures,
which shall be completed as promptly as reasonably and feasibly possible
following completion of Lessee's Work.
(d) LESSEE'S PAYMENT OF EXCESS CONSTRUCTION COSTS WITHOUT
REIMBURSEMENT.
Lessor and Lessee agree that Lessor's obligation to
reimburse Lessee for the cost of the Lessee's Work shall cease at the time that
the Total Lessor Investment equals $700,000.00. In such event, Lessee shall be
required to complete Lessee's Work at Lessee's sole expense without
reimbursement from Lessor.
(e) WAIVER OF LESSOR LIABILITY WITH RESPECT TO CONSTRUCTION.
Nothing in this Sublease shall be construed in any way as
constituting Lessor as the agent of the Lessee in designing, engineering or
constructing the Specified Building or any other improvements to the Subleased
Premises. Lessee shall pay all of its contractors or subcontractors regarding
the scope of its improvements to the Subleased Premises and shall remove, if
applicable, any mechanics' liens which may be filed against the Subleased
Premises as a result of Lessee's non-payment of contract sums due to its
contractors and subcontractors. To the extent possible, all contractor's,
subcontractor's, manufacturer's, and vendor's warranties and guarantees, and any
construction or maintenance service contracts, IF ANY, with respect to any
construction, improvements, or repairs performed by or at the direction or
request of Lessee on or to the Subleased Premises shall be issued in the name
of, or otherwise be available to, both Lessee and Lessor, as their interests may
appear.
ARTICLE
8
TAXES
________________________________________
8.1 ADDITIONAL RENT FOR REAL PROPERTY TAXES
(a) LESSEE OBLIGATION TO PAY REAL PROPERTY TAXES
As Additional Rent hereunder, Lessee shall pay all Real
Property Taxes (as hereinafter defined) applicable to the Subleased Premises
during the Term, commencing with those due and payable in calendar year 1997;
PROVIDED, HOWEVER, that the Real Property Taxes for any year which are payable
by Lessee shall be subject to a prorata adjustment based upon the number of days
of said year during which the Subleased Premises are subleased to Lessee. For
all purposes of this Sublease, the
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Text of Agreement - Page 17
term "REAL PROPERTY TAXES" shall include any form of assessment, licensing,
commercial rental tax, levy, penalty, ad valorem tax, or other tax (other
than income, inheritance and estate taxes) imposed upon Lessor or Ground
Lease Landlord with respect to the Subleased Premises, or otherwise against
or with respect to the Subleased Premises, by any authority having the direct
or indirect power to tax, including any city, county, state or federal
Government, and any school, agricultural or other improvement district
thereof.
(b) NOTICE AND PAYMENT
Following receipt by Lessor of the then current bills for
Real Property Taxes due and payable in 1997 or later years during the Term,
Lessor shall forward a copy thereof to Lessee (or, alternatively, Ground Lease
Landlord shall forward a copy of such tax bills directly to Lessee). Within
THIRTY (30) DAYS after receipt of such notice from Lessor (or, alternatively,
direct notice from Ground Lease Landlord), Lessee shall pay to Lessor (or,
alternatively, directly to Ground Lease Landlord) any amount properly stated
therein to be due (SUBJECT, HOWEVER, to the prorata adjustment for any partial
year within the Term, as provided for under Section 8.1(a) hereof).
8.2 PERSONAL PROPERTY TAXES.
Lessee shall pay, prior to delinquency, all taxes assessed
against or with respect to any Trade Fixtures, furnishings, equipment, or other
personal property contained in the Subleased Premises. Any such taxes imposed
upon or otherwise payable by Lessor shall be treated and included as Real
Property Taxes which are subject to the provisions of Section 8.1 hereof.
8.3 INCOME TAXES
Nothing in this Sublease shall be construed as requiring Lessee
to pay (i) any municipal, state or Federal income taxes assessed against Lessor,
(ii) any municipal, state, or Federal capital, levy, estate, succession,
inheritance, or transfer taxes of Lessor, OR (iii) any corporate franchise taxes
imposed upon any corporate owner of the fee of the Subleased Premises.
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ARTICLE
9
ESTOPPEL CERTIFICATES; SUBORDINATION; ATTORNMENT
________________________________________
9.1 ESTOPPEL CERTIFICATE
(a) LESSEE'S OBLIGATION TO EXECUTE ESTOPPEL CERTIFICATE WHEN
REQUESTED
From time to time, upon at least TEN (10) DAYS' prior
written notice from Lessor or Ground Lease Landlord, Lessee shall execute,
acknowledge and deliver to Lessor or Ground Lease Landlord, as the case may be,
at no cost to Lessor, a statement in writing (i) certifying that, as of the date
of such statement, this Sublease and the Ground Lease are each unmodified and in
full force and effect (or, if modified at such time, stating the nature of such
modification and certifying that this Sublease or the Ground Lease, as the case
may be, as so modified, is then in full force and effect), (ii) certifying the
Base Rent Commencement Date, (ii) certifying the date to which the Rent or other
charges are then paid in advance, if any, and the amount of the Rent and other
charges paid by Tenant, AND (iii) acknowledging that, as of the date of such
statement, there are not, to Lessee's knowledge, any uncured defaults on the
part of Lessor hereunder or any uncured defaults on the part of Lessor or Ground
Lease Landlord under the Ground Lease, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by any prospective
purchaser or encumbrancer of the Subleased Premises.
(b) FAILURE OF LESSEE TO DELIVER ESTOPPEL CERTIFICATE
Lessee's failure to deliver such statement within the TEN
(10) DAY period provided for under Section 9.1(a) above shall be conclusive upon
Lessee that, as of the end of such TEN (10) DAY period (i) this Sublease is in
full force and effect, without modification except as may be represented by
Lessor; (ii) the Base Rent Commencement Date is as represented by Lessor,
(iii) there are no uncured defaults on the part of Lessor hereunder or any
uncured defaults on the part of Lessor or Ground Lease Landlord under the Ground
Lease, AND (iii) not more than one month's Base Rent (and no other amount of
Rent) has been paid in advance.
(c) LESSEE'S OBLIGATION TO FURNISH FINANCIAL AND TAX
INFORMATION TO LENDERS
If Lessor or Ground Lease Landlord desires to finance or
refinance the Subleased Premises, or any part thereof, Lessee hereby agrees to
deliver to any lender designated by Lessor or Ground Lease Landlord such
financial statements and tax returns as may be reasonably required by such
lender. All such financial statements
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Text of Agreement - Page 19
and tax returns shall be received by Lessor or Ground Lease Landlord in
confidence and shall be used only for the purpose herein set forth.
9.2 MORTGAGE SUBORDINATION
Subject to Lessor's compliance with the provisions of Section 9.3
hereof, Lessee agrees that this Sublease shall at all times be subject and
subordinate to (i) all mortgages, liens, security interests, and other
encumbrances (hereinafter sometimes referred to collectively as "MORTGAGES" and
each individually as a "MORTGAGE") against the Subleased Premises as of the date
of execution of this Sublease, INCLUDING, BUT NOT LIMITED TO, the extent to
which such Mortgages secure current and future advances made under current debts
and obligations of Lessor AND (ii) all Mortgages subsequently placed on the
Subleased Premises by or with the consent of Lessor or Ground Lease Landlord.
Subject to Lessor's compliance with the provisions of Section 9.3 hereof, Lessee
agrees that, upon written demand by Lessor and at no cost to Lessor or Ground
Lease Landlord, Lessee shall execute such documents as may be required at any
time and from time to time to effectuate and evidence such subordinations.
9.3 NONDISTURBANCE AGREEMENTS
If, as of the date of execution of this Sublease, there are any
Mortgages against the Subleased Premises, or if Lessor shall subsequently
encumber or permit the encumbrance of the Subleased Premises by any Mortgages,
Lessor or Ground Lease Landlord, as the case may be, shall have the mortgagee,
lienholder or other secured party with respect to each Mortgage execute a
nondisturbance agreement providing that, so long as Lessee is not in default
under this Sublease or the Ground Lease and continues to perform all of its
obligations under this Sublease and the Ground Lease, (i) Lessee's tenancy shall
not be disturbed, (ii) this Sublease and the Ground Lease shall not be affected
by any default under such Mortgage, AND (iii) in the event of any foreclosure or
other enforcement of such Mortgage, and notwithstanding any resulting transfer
of Lessor's rights under this Sublease or any resulting transfer of Ground Lease
Landlord's rights under the Ground Lease, the rights of Lessee under this
Sublease and the Ground Lease shall expressly survive and this Sublease and the
Ground Lease shall in all respects continue in full force and effect.
9.4 DEFAULT OF LESSOR UNDER MORTGAGES
If Lessor or Ground Lease Landlord, as applicable, defaults in
making payments under any Mortgage, or if Lessor or Ground Lease Landlord, as
applicable, is otherwise in default under any Mortgage, Lessee shall have the
right to pay any or all Rent thereafter becoming due under this Sublease, or any
rent or other amounts becoming due under the Ground Lease, as the case may be,
to the mortgagee, lienholder, or secured party under such Mortgage instead of to
Lessor or to Ground
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Text of Agreement - Page 20
Lease Landlord, as applicable, and any payments so made shall, to the extent
thereof, discharge the obligation of Lessee hereunder respecting the payment
of such Rent and/or discharge the obligation of Lessee and Lessor under the
Ground Lease respecting the payment of such rent or other amounts under the
Ground Lease, as applicable. Subject to Lessor's compliance with the
provisions of Section 9.3 hereof, Lessee shall execute an acceptance of, and
shall fully comply with the terms of, any collateral or conditional
assignment of rents executed by Lessor or Ground Lease Landlord, as
applicable.
9.5 LESSEE'S NOTICE TO MORTGAGEES OF LESSOR'S DEFAULTS UNDER THIS
SUBLEASE
Lessee will give reasonably detailed notice to any holder of a
Mortgage with respect to the Subleased Premises (PROVIDED, HOWEVER, that Lessee
has been notified in writing of the name and address of such Mortgage holder) of
any default of Lessor or Ground Lease Landlord, as the case may be, which would
entitle Lessee to terminate this Sublease or the Ground Lease, as applicable, or
reduce or xxxxx the Rent hereunder or the rent under the Ground Lease, as
applicable. Such Mortgage holder shall have the right, but not the obligation,
to cure such default within a period of THIRTY (30) DAYS after such notice (or
within such longer period of time as may reasonably be required to cure such
default if such default cannot reasonably be cured within said THIRTY (30) DAY
period), and Lessee shall not terminate this Sublease or the Ground Lease, as
the case may be, or reduce or xxxxx the Rent hereunder or the rent under the
Ground Lease, as the case may be, during such period.
9.6 ATTORNMENT
If any person shall succeed to all or any part of Lessor's or
Ground Lease Landlord's interest in the Subleased Premises, whether by purchase,
foreclosure, deed in lieu of foreclosure, power of sale, termination of
Sublease, or otherwise, and if so requested or required by such successor in
interest, Lessee shall attorn to such successor in interest and shall execute
such agreement in confirmation of such attornment as such successor in interest
shall reasonably request; PROVIDED, HOWEVER, in any such event, that such
successor to Lessor's or Ground Lease Landlord's interest shall execute a
nondisturbance agreement as described in Section 9.3 hereof.
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Text of Agreement - Page 21
ARTICLE
10
DEFAULT
________________________________________
10.1 DEFAULT BY LESSEE; REMEDIES
(a) MATERIAL DEFAULT AND BREACH BY LESSEE
The occurrence of any one or more of the following events
shall constitute a material default and breach of this Sublease by Lessee:
(i) The vacating or abandonment of the Subleased
Premises by Lessee for SIXTY (60) DAYS out of any period of 120
CONSECUTIVE DAYS during the Term.
(ii) The failure by Lessee to make any payment of Rent
or any other payment required to be made by Lessee under this
Sublease as and when due and the continuance of such failure for
a period of TEN (10) DAYS after written notice thereof to Lessee,
Lessee hereby waiving any statutory notice of default for
nonpayment of Rent.
(iii) The failure by Lessee to observe or perform any of
the covenants, conditions, or provisions of this Sublease to be
observed or performed by Lessee, OTHER THAN those described in
Section 10.1(a)(ii) above, and the continuance of such failure
for a period of THIRTY (30) DAYS after written notice thereof
from Lessor to Lessee; PROVIDED, HOWEVER, that if the nature of
Lessee's default is such that more than THIRTY (30) DAYS is
reasonably required for its cure, then Lessee shall not be deemed
to be in default if Lessee commences such cure within such THIRTY
(30) DAY period and thereafter diligently pursues such cure to
completion.
(iv) The making by Lessee of any general assignment or
general arrangement for the benefit of creditors.
(v) The filing by or against Lessee of a petition to
have Lessee adjudged a bankrupt or a petition for reorganization
or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Lessee, such action is
dismissed within SIXTY (60) DAYS).
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Text of Agreement - Page 22
(vi) The appointment of a trustee or receiver to take
possession of all or substantially all of Lessee's assets located
at the Subleased Premises or of Lessee's interests under this
Sublease, UNLESS possession is restored to Lessee within SIXTY
(60) DAYS.
(vii) The attachment, execution, or other judicial
seizure of all or substantially all of Lessee's assets located at
the Subleased Premises or of Lessee's interests under this
Sublease, unless such seizure is bonded or discharged within
SIXTY (60) DAYS.
(b) LESSOR'S REMEDIES UPON DEFAULT BY LESSEE
In the event of any material default or breach by Lessee,
as provided under Section 10.1(a) above, Lessor may at any time thereafter, with
or without additional notice or demand and without limiting Lessor in the
exercise of any right or remedy which Lessor may have by reason of such default
or breach:
(i) Terminate Lessee's right to possession of the
Subleased Premises by any lawful means, in which case this
Sublease shall terminate and Lessee shall immediately surrender
possession of the Subleased Premises to Lessor. In such event,
Lessor shall be entitled to recover from Lessee all damages
reasonably incurred by Lessor by reason of Lessee's default,
INCLUDING, BUT NOT LIMITED TO (i) the cost of recovering
possession of the Subleased Premises, (ii) the expenses of
reletting, the cost of any reasonably required new tenant
improvements and allowances, reasonable attorneys' fees, and any
real estate commissions actually paid, AND (iii) the reasonable
present value as of the date that Lessor recovers possession of
the Subleased Premises of THE EXCESS OF (A) the amount of unpaid
Rent which would have been due and payable during the balance of
the Term after such date had the Sublease not been terminated by
reason of Lessee's default, OVER (B) the amount of net rental
income reasonably estimated to be received by Lessor during such
period through reletting of the Subleased Premises. Lessor shall
exercise Lessor's best efforts to mitigate damages against Lessee
by reletting the Subleased Premises in a prompt and commercially
reasonable manner.
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Text of Agreement - Page 23
(ii) Maintain Lessee's right to possession, in which
case this Sublease shall continue in effect whether or not Lessee
shall have abandoned the Subleased Premises. In such event,
Lessor shall be entitled to enforce all of Lessor's rights and
remedies under this Sublease, including the right to recover the
Rent as it becomes due hereunder.
(iii) Require specific performance by Lessee of Lessee's
obligations under this Sublease.
(iv) Pursue any other remedy now or hereafter available
to Lessor under the laws or judicial decisions of the
Commonwealth of Kentucky.
10.2 DEFAULT BY LESSOR
(a) MATERIAL DEFAULT AND BREACH BY LESSOR
A material default and breach of this Sublease by Lessor
shall occur upon the failure by Lessor to observe or perform any of the
covenants, conditions, or provisions of this Sublease to be observed or
performed by Lessor and the continuance of such failure for a period of THIRTY
(30) DAYS after written notice thereof from Lessee to Lessor; PROVIDED, HOWEVER,
that if the nature of Lessor's default is such that more than THIRTY (30) DAYS
is reasonably required for its cure, then Lessor shall not be deemed to be in
default if Lessor commences such cure within such THIRTY (30) DAY period and
thereafter diligently pursues such cure to completion.
(b) LESSEE'S REMEDIES UPON DEFAULT BY LESSOR
In the event of any material default or breach by Lessor,
as provided under Section 10.2(a), Lessee may at any time thereafter, with or
without additional notice or demand and without limiting Lessee in the exercise
of any right or remedy which Lessee may have by reason of such default or
breach:
(i) Remedy such breach or default and deduct from the
Rent then or thereafter due under this Sublease the reasonable
costs of such remedy, including interest thereon at the Prime
Rate PLUS 2% PER ANNUM until recovered through such Rent offsets
against the Rent then or thereafter due under this Sublease.
(ii) Require specific performance by Lessor of Lessor's
obligations under this Sublease.
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Text of Agreement - Page 24
(iii) Pursue any other remedy now or hereafter available
to Lessee under the laws or judicial decisions of the
Commonwealth of Kentucky.
10.3 REMEDIES CUMULATIVE
All rights and remedies of Lessor enumerated in Section 10.1(a)
hereof and all rights and remedies of Lessee enumerated in Section 10.2(a)
hereof shall be cumulative, and none shall exclude any other right or remedy
allowed by law or equity. Said rights and remedies may be exercised and enforced
concurrently or successively from time to time at Lessor's or Lessee's option,
respectively.
10.4 ATTORNEY FEES AND COSTS
If any party shall default with respect to any of such party's
obligations under this Sublease, such defaulting party shall pay all costs,
expenses, and reasonable attorneys' fees which are incurred or paid by the other
parties to this Sublease in enforcing the covenants and agreements of the
defaulting party under this Sublease.
10.5 FORCE MAJEURE
In the event that either Lessor or Lessee shall be delayed in,
hindered in, or prevented from the performance of any act required hereunder by
reason of any strikes, lock-outs, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war, or the act, failure to act, or default of the other
party, or for other reasons beyond such party's control, then such party's
performance of such act shall be excused during the period of the delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
10.6 WAIVER OF CERTAIN DEFENSES
Should either Lessor or Lessee seek recourse to equity to enforce
any of its rights under this Sublease by specific performance, injunction, or
other equitable relief, the other party agrees to, and hereby does waive any
defense(s), which it might otherwise have that there is any adequate remedy at
law.
______________________________________________________________________________
Text of Agreement - Page 25
ARTICLE
11
MISCELLANEOUS
________________________________________
11.1 ASSIGNMENT OR SUBLETTING
Lessee shall not assign this Sublease in whole or in part or
sublease all or any portion of the Subleased Premises without the prior written
consent of Lessor, which consent shall not be unreasonably withheld; PROVIDED,
HOWEVER, that, notwithstanding the foregoing, Lessee may assign this Sublease in
whole or in part or sublease all or any portion of the Subleased Premises
without the prior written consent of Lessor to any entity controlling,
controlled by, or under common control with, Lessee. Unless otherwise agreed to
by Lessor, in the event of any assignment or sublease of this Sublease by Lessee
permitted under this Section 11.1, Lessee shall remain fully liable to Lessor in
connection with this Sublease and with respect to the Subleased Premises. Lessor
may freely assign any or all of its rights and obligations under this Sublease.
11.2 SUCCESSOR GROUND LEASE LANDLORD'S AND LESSOR'S LIABILITY
The term "Ground Lease Landlord" as used herein at any time shall
mean only the owner or owners at such time of the fee title to the Subleased
Premises and, in the event of any transfer of such title, Ground Lease Landlord
herein named (and in case of any subsequent transfers, then the transferor)
shall be relieved from and after the date of such transfer of all liability with
respect to Ground Lease Landlord's obligations under the Ground Lease thereafter
to be performed; PROVIDED, HOWEVER, that any funds in the hands of Ground Lease
Landlord or the then transferor at the time of such transfer, in which Lessee
has an interest, shall be delivered to the transferee. The obligations contained
in the Ground Lease to be performed by Ground Lease Landlord shall, subject as
aforesaid, be binding on Ground Lease Landlord's successors and assigns only
during their respective periods of ownership. The term "Lessor" as used herein
at any time shall mean only the primary tenant (as opposed to the sublessee)
under the Ground Lease and, in the event of any transfer of such rights, Lessor
herein named (and in case of any subsequent transfers, then the transferor)
shall be relieved from and after the date of such transfer of all liability with
respect to Lessor's obligations under this Sublease thereafter to be performed;
PROVIDED, HOWEVER, that any funds in the hands of Lessor or the then transferor
at the time of such transfer, in which Lessee has an interest, shall be
delivered to the transferee. The obligations contained in this Sublease to be
performed by Lessor, subject as aforesaid, shall be binding on Lessor's
successors and assigns only during their respective periods of holding such
primary leasehold interests under the Ground Lease.
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Text of Agreement - Page 26
11.3 RELATIONSHIP OF THE PARTIES
Nothing contained in this Sublease shall be deemed or construed
by the parties hereto, or by any third party, as creating the relationship of
principal and agent, partnership, joint venture, or other similar relationship
between or among any of the parties.
11.4 ENTIRE AGREEMENT
It is expressly understood and agreed by and among the parties
hereto that this Sublease and the Ground Lease set forth all the promises,
agreements, conditions and understandings between Lessor and Lessee relative to
the Subleased Premises and that there are no other promises, agreements,
conditions or understandings, either oral or written, among them other than as
are herein set forth. It is further understood and agreed that no subsequent
alteration, amendment, change or addition to this Sublease or the Ground Lease
shall be binding upon Lessor or Lessee unless reduced to writing and signed by
them, and by direct reference therein made a part hereof.
11.5 NOTICES
(a) DELIVERY OF NOTICE
All notices, demands, requests, consents, approvals,
offers, counteroffers or other communications required or permitted under this
Sublease shall be in writing and (i) delivered by personal delivery to such
intended recipient, which personal delivery shall be evidenced by a written
receipt therefor signed by such recipient, (ii) sent by United States certified,
registered or express mail, return receipt requested, postage prepaid, or by
reputable express delivery service (such as Federal Express, UPS, Airborne,
Purolator, or DHL), fees prepaid, addressed to the intended recipient thereof,
at the address listed for such party below, or at such other address as such
party shall furnish in writing to the other parties to this Sublease, OR
(iii) transmitted by fax to such intended recipient at the fax number listed for
such party below (or such other fax number as such party shall furnish in
writing to the other parties to this Sublease), receipt of which transmission
shall be confirmed by such recipient.
TO LESSOR: TW-DixieBash, LLC
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
ATTENTION: Xxxxx X. Xxxxxx, Member
Fax: (000) 000-0000
______________________________________________________________________________
Text of Agreement - Page 27
WITH COPY TO: Xxxx Xxxxx Xxxxxx & Xxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
ATTENTION: Xxxxx X. Xxxx
Fax: (000) 000-0000
TO LESSEE: Tumbleweed, LLC
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
ATTENTION: Xxxx X. Xxxxxxx, Xx. & Xxxxx X. Xxxxxxxxx,
Managers
Fax: (000) 000-0000
WITH COPY TO: Xxxx Xxxxx Xxxxxx & Xxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
ATTENTION: Xxxxx X. Xxxx
Fax: (000) 000-0000
(b) EFFECTIVE DATE OF NOTICE; RESPONSE PERIOD
All such notices, demands, requests, consents, approvals,
offers, counteroffers or other communications shall be effective upon being
personally delivered and properly receipted, TWO (2) DAYS after being properly
addressed and deposited in the United States mail or with a reputable express
delivery service or upon being transmitted by fax and properly receipted, as set
forth above. However, the time period in which a response to any such notice,
request, demand, consent, approval, offer, counteroffer or other communication
must be given shall commence to run from the date of receipt of personal
delivery, the date on the return receipt or express delivery receipt, or the
date of confirmation of receipt of the fax, as the case may be, of the notice,
request, demand, consent, approval, offer, counteroffer or other communication
by the addressee thereof; PROVIDED, HOWEVER, that if any party rejects delivery
of any such notice, request, demand, consent, approval, offer, counteroffer or
other communication properly sent by mail or express delivery service, or fails
or neglects to accept delivery after TWO (2) ATTEMPTS to so deliver by postal or
express delivery authorities, as the case may be, the time period for a response
shall commence TWO (2) DAYS following the proper mailing or depositing with the
express delivery service, as the case may be, of such notice, request, demand,
consent, approval, offer, counteroffer or other communication.
11.6 NO WAIVER
No waiver by any party of any provisions of this Sublease, nor
any default by any party, shall affect the rights of the waiving or
nondefaulting party or parties
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Text of Agreement - Page 28
thereafter to enforce such provision or to exercise any right or remedy in
the event of any other default, whether similar or dissimilar. No waiver
shall be binding unless executed in writing by the party making the waiver,
nor shall any waiver constitute a continuing waiver.
11.7 SEVERABILITY AND INVALIDITY
The invalidity or unenforceability of any provision hereof shall
not affect or impair any other provisions hereof; PROVIDED, HOWEVER, should any
provision hereof providing for the payment of any rents, compensation or
reimbursement to Lessor or Ground Lease Landlord be invalid or unenforceable,
Lessor may, at its sole option, terminate this Sublease at any time giving
Lessee TEN (10) DAYS' prior written notice of such election to terminate.
11.8 CAPTIONS, HEADINGS AND SUMMARY
The captions and headings throughout this Sublease and the
Summary at the beginning of this Sublease are for convenience and reference only
and the words contained in such captions, headings and Summary shall in no way
be held or deemed to define, limit, describe, explain, modify, amplify or add to
the interpretation, construction or meaning of any provision or the scope or
intent of this Sublease, nor in any way affect this Sublease.
11.9 SUCCESSORS AND PERMITTED ASSIGNS
Subject to the provisions of Section 11.2 hereof, the terms,
covenants and conditions of this Sublease shall inure to the benefit of, and
shall be binding upon, the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns.
11.10 GENDER
The use of any gender in this Sublease shall include all other
genders, the singular shall include the plural, and the plural shall include the
singular, as the context may require.
11.11 RECORDING
No party to this Sublease shall record this Sublease without the
other parties' prior written consent, but each party shall, upon request of any
other party, execute, acknowledge and deliver to such other party a "short form"
memorandum of this Sublease for recording purposes.
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Text of Agreement - Page 29
11.12 GOVERNING LAW
This Sublease shall be construed and interpreted in accordance
with the laws of the Commonwealth of Kentucky without regard to any conflict of
laws provisions.
11.13 COUNTERPARTS
This Sublease may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
11.14 FURTHER ASSURANCES
From time to time, at any party's request and without further
consideration, each party shall execute and deliver such further instruments,
and take such other actions as the requesting party may reasonably request, in
order to more effectively implement the transactions contemplated herein.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the day
and year first hereinabove written.
LESSOR:
TW-DIXIEBASH, LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
XXXXX X. XXXXXX, MEMBER
LESSEE:
TUMBLEWEED, LLC
By: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------------------------
XXXX X. XXXXXXX, XX., MANAGER
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
XXXXX X. XXXXXXXXX, MANAGER
EXHIBIT A: GROUND LEASE
______________________________________________________________________________
Text of Agreement - Page 30
EXHIBIT B: Legal Description of Subleased Premises
______________________________________________________________________________
Text of Agreement - Page 31
EXHIBIT A
COPY OF GROUND LEASE
[Copy of Ground Lease Attached]
______________________________________________________________________________
Exhibit A
EXHIBIT B
LEGAL DESCRIPTION OF SUBLEASED PREMISES
That certain parcel of land, together with all improvements, privileges and
appurtenances thereto and all right, title and interest, if any, of Lessor in
and to any property lying in the bed of any street, road, highway, or avenue
opened or proposed in front of, adjacent to, or adjoining such land, located in
the City of Louisville, Jefferson County, Kentucky, and being more particularly
described as follows:
______________________________________________________________________________
Exhibit B
EXHIBIT B
LEGAL DESCRIPTION OF SUBLEASED PREMISES
That certain parcel of land, together with all improvements, privileges and
appurtenances thereto and all right, title and interest, if any, of Lessor in
and to any property lying in the bed of any street, road, highway, or avenue
opened or proposed in front of, adjacent to, or adjoining such land, located in
the City of Louisville, Jefferson County, Kentucky, and being more particularly
described as follows:
Being Tract 3 as shown on minor subdivision plat approved by the Louisville
and Jefferson County Planning Commission on February 12, 1996, Docket No.
38-97, attached to and made a part of Instrument of Consolidation dated
November 6, 1996, and recorded in Deed Book 6872, Page 809, in the Office of
the Clerk of Jefferson County, Kentucky.
Being a part of the same property acquired by HOLIDAY STATION ASSOCIATES
LIMITED, a Kentucky limited partnership, by Deed dated June 29, 1995, of
record in Deed Book 6607, Page 494, in the Office of the Clerk of Jefferson
County, Kentucky.
