EXHIBIT 10.10.1
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CONSENT TO ASSIGMENT
This Consent to Assignment ("Agreement") is entered into by and
between Austins Lincoln, Inc., a Nebraska corporation ("Assignor"), Charlie's
On The Lake, Inc., a Nebraska Corporation ("Assignee") and Xxxx Xxxxx
("Xxxxx") as of the date this Agreement its fully executed by the parties for
good and valuable consideration including, but not limited to the promises
and convenants herein.
RECITALS:
A. Assignor currently operates a restaurant in Lincoln, Nebraska,
and owns certain business assets (the "Business Assets") as part of said
business. Said business is operating pursuant to a Commercial Lease entered
into March 15, 1993 (the "Commercial Lease") between Assignor as Lessee and
Xxxxx as Lessor.
B. Assignor desires to sell the Business Assets to Assignee.
C. Assignor has requested that Xxxxx consent to the Assignment of
the Commercial Lease in connection with the Assignor's sale of the Business
Assets to Assignee. Xxxxx is willing to consent to such sale and Assignment
upon the terms and conditions set forth herein below.
D. That the performance of the Lessee of the Commercial Lease has
been guaranteed by the Austins Steaks & Saloon, Inc., ("ASSI") and ASSI will
continue to guaranty the performance of the Lessee pursuant to the Lease
Guaranty originally executed by ASSI. Further, that Xxxx X. Xxxxxx, III, will
personally guaranty the performance of the Commercial Lease with the guaranty
limited to $40,000.00.
NOW, THEREFORE, it is agreed as follows:
1. CONSENT. Xxxxx hereby agrees to the Assignment of the Commercial
Lease to Assignee, effective as of the date this Assignment is fully
executed, provided that Assignor and Assignee, as applicable, satisfy the
conditions precedent set forth herein.
Assignee hereby accepts the Assignment of the Commercial Lease and
hereby specifically agrees to:
a. Assume, keep, observe and perform all the conditions, covenants
and obligations imposed on the Lessee as set forth in the
Commercial Lease;
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b. To make all payments which may hereafter become due to the
Lessor under the Commercial Lease, according to the terms and
conditions of the Commercial Lease; and
2. CONDITIONS PRECEDENT. This Agreement and Xxxxx'x consent granted
pursuant hereto, is expressly subject to and conditioned upon Assignor and
Assignee fulfilling the following conditions precedent and complying with the
balance of the terms set forth hereinafter:
a. All parties shall execute this Agreement and deliver the same to
Xxxxx.
b. All sums due and owing to Xxxxx pursuant to the Commercial Lease
up to and including the date of this Agreement shall be paid in
full.
c. That Xxxx X. Xxxxxx, III, ("Xxxxxx") execute a personal guaranty
of the performance of the Commercial Lease limited to $40,000.00.
3. ASSIGNMENT. For good and valuable consideration, the receipt of
which is specifically acknowledged, Assignor does hereby assign to the
Assignee all of the Assignor's rights, title and interest to and in the
Commercial Lease identified above
4. CONTINUING OBLIGATIONS. The Assignor acknowledges that the terms
of the Commercial Lease require that the Assignor continue to be bound to the
terms, conditions, and covenants of the Commercial Lease following the
Assignment. Assignor shall continue to be bound by said Commercial Lease.
ASSI acknowledges that it has guaranteed the performance of the
Lessee pursuant to a Lease Guaranty dated March 10, 1994, and that it will
continue to be bound to the terms, conditions, and covenants of the
Commercial Lease and the Lease Guaranty following the Assignment.
The parties acknowledge and agree that the ASSI guaranty shall
expire at the end of the Base Term of the Commercial Lease.
5. ASSIGNEE'S REPRESENTATIVES. Assignee hereby represents and
declares that the Assignee has relied wholly upon his individual judgment
regarding the facts and circumstances surrounding the investigation,
negotiation, and purchase of the business of the Business Assets and the
assumption of the terms, conditions and obligations of the Commercial Lease.
The decision to consummate the transaction by the Assignee is made without
reliance upon any statement or representation of Xxxxx and, further, Assignee
hereby releases Xxxxx and its affiliates from any action, cause of action, or
loss arising from the Assignee's investigation and purchase of the Business
Assets of the Assignor and the assumption of the obligations of the
Commercial Lease.
6. WARRANTIES. Assignor and ASSI hereby covenant, warrant and
represent to and with Assignee and Xxxxx that they will indemnify and hold
Assignee and Xxxxx harmless.
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from any and all claims or causes of action which may be made or asserted
against Assignee or Xxxxx as a result of any act or omission by anyone, if
such claim or cause of action is based upon any act or omission arising out of
ownership, operation or management of the restaurant and if such act or
failure to act occurred at any time prior to the date of the Assignment.
Assignee hereby gives Assignor and Xxxxx the same indemnifications as a result
of any act or omission by anyone or claims arising after the date of the
Assignment.
7. INDEMNIFICATION AND RELEASE. Assignor and Assignee hereby agree to
defend, indemnify and hold Xxxxx harmless from and against any claims,
demands, costs, attorney fees, or other damages or injuries which Xxxxx may
sustain as the result of any dispute arising in connection with the sale of
the Business Assets by Assignor to Assignee.
Assignor and ASSI hereby release, acquit and forever discharge Xxxxx from
any and all claims, actions, causes of action, demands, rights, damages,
costs and expenses whatsoever, which they now have or which may hereafter
accrue on account of or in any way growing out of any known or unknown,
foreseen or unforeseen acts or failures to act and the consequences thereof
arising out of the investigation, consideration, negotiation, execution of
the Commercial Lease and the Guaranty and operation of the Business to the
date of Assignment pursuant to the Commercial Lease.
8. ASSIGNMENT. Article 12 of the Commercial Lease provides for certain
rights of the Tenant to assign the Tenant's interest in the Commercial Lease.
The parties hereby acknowledge and agree that as a result of the continuing
obligation of ASSI and the Guaranty of Xxxxxx, that said Article 12.a. shall
be amended by the addition of the following:
Notwithstanding anything to the contrary contained in this
Commercial Lease, Tenant shall not voluntarily or by operation of
law, assign, mortgage, sublet or otherwise transfer all or any part
of Tenant's interest in the Commercial Lease without the consent of
Austin's Steaks & Saloon, Inc., and Xxxx X. Xxxxxx, III, so long as
said individual and corporation are Guarantors of this Commercial
Lease. Said consent may be withheld in the sole discretion of the
Guarantors.
9. NO WAIVER. Neither Xxxxx'x consent to the proposed Assignment of the
Commercial Lease by Assignor to Assignee, nor the terms of any agreement
entered into between Assignor and Assignee to which Xxxxx is not a party,
shall in any manner limit, waive, or alter any of Xxxxx'x rights or
obligations pursuant to the Commercial Lease or any guaranty thereof.
10. ENTIRE AGREEMENT. This Agreement supersedes any prior agreement,
oral or written, with respect to the subject matter hereof. The parties to
this Agreement understand and agree that no representations, warranties,
agreements, or covenants have been made with respect to this Agreement by
Xxxxx, other than those set forth herein, and that in executing this
Agreement the parties are not relying upon any representation, warranty,
agreement or covenant of Xxxxx not set forth herein.
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11. AGREEMENT LEASE. This Agreement shall, in all [illegible]
IN WITNESS WHEREOF, the [illegible]
ASSIGNOR: [illegible] [illegible]
By: /s/ [illegible] By: /s/ [illegible]
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/s/ [illegible] /s/ [illegible]
--------------------------------- ---------------------------------
[illegible] [illegible]
By: /s/ [illegible] By: /s/ [illegible]
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President [illegible]
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STATE OF NEBRASKA )
)vs.
COUNTY OF LANCASTER )
[illegible]
STATE OF NEBRASKA )
)vs.
COUNTY OF LANCASTER )
[illegible] 13th day of March [illegible]
]4[
00
XXXXX XX XXXXXXXX )
)vs.
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this
13th day of March, 1998, by Xxxx X. Xxxxxx, III, CEQ of Austins Steaks &
Saloon, Inc., a Delaware corporation.
[NOTARY] /s/
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Notary Public
STATE OF NEBRASKA )
)vs.
COUNTY OF XXXXXXX )
The foregoing instrument was acknowledged before me this
13th day of March, 1998, by Xxxx Xxxxxx, President of Charlie's On the
Lake, Inc., a Nebraska corporation.
[NOTARY]
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Notary Public
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