RESTAURANT LEASE
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▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
B.W.C. FARMS, INC.,
an Iowa corporation
as Landlord,
and
WALNUT BREWERY, INC.,
a Colorado corporation d/b/a Walnut Brewery,
as Tenant.
ARTICLE 1
SUMMARY OF FUNDAMENTAL LEASE TERMS
The following is intended as a summary of the fundamental terms of the
Lease. In the event of any conflict between this summary and the terms of the
Lease, the terms of the Lease shall control:
1.01 TENANT'S NAME: Walnut Brewery, Inc., a Colorado corporation, d/b/a
Rock Bottom Brewery
1.02 LEASED PREMISES: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.03 TENANT'S NAME AS IT
APPEARS ON LEASE,
ADDRESS AND PHONE: Walnut Brewery, Inc., a Colorado corporation, d/b/a
Rock Bottom Brewery
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▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
1.04 LANDLORD'S NAME
ADDRESS, PHONE &
FAX: B.W.C. Farms, Inc., an Iowa corporation
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
1.05 AGENT/MANAGER'S
NAME, ADDRESS,
PHONE & FAX: Same name, phone and address as no. 1.04
1.06 SQUARE FOOTAGE
LEASED: Approximately ____________ (_____) square feet.
1.07 DATE LEASE SIGNED: February 9, 1998
1.08 LEASE COMMENCEMENT
DATE: Upon closing of the sale of the
Property and Premises to Landlord as
set forth in the Purchase and Sale
Agreement between Landlord and Rock
Bottom Restaurants, Inc., dated
February 9, 1998.
1.09 DATE RENT
COMMENCES: On the day of the closing as set forth in paragraph
1.08, above.
1.10 INITIAL LEASE TERM:Fifteen (15) years.
1.11 INITIAL TERM ENDS: On the last day of the one hundred eightieth (180th)
full month after the Lease Commencement Date.
1.12 BASE RENT: Years 1-5 $230,775
6-10 $261,353
11-15 $295,982
Options 16-20 $335,200
21-25 $379,614
26-30 $429,913
31-35 $486,876
1.13 ADDITIONAL RENT: (Check applicable item(s), if any:
___X___ Tenant's Common Area Maintenance,
per the Governing Documents (as
hereinafter defined), including
Article II of the Restated
Indentures, Article VIII of the
Master Covenants and Article V of
the Supplemental Covenants
governing the Property.
___X___ Real Estate Taxes
___X___ Insurance
1.14 UTILITIES: Paid by Landlord: None
Paid by Tenant: As applicable to the
Leased Premises, heat, water, gas,
steam, telephone, sewer and
electricity consumed on the
Premises.
1.15 MAINTENANCE
RESPONSIBILITIES: Tenant shall be responsible for all maintenance and
repairs.
1.16 INSURANCE COVERAGE
REQUIRED:
By Tenant: As required by the Governing Documents (as
hereinafter defined) covering the Property, but in no event
less than $2,000,000 combined single limit of liability for
bodily injury and property damage with an annual aggregate of
$2,000,000, together with all risk property insurance
(hereinafter "Tenant's Property Insurance") covering fire and
extended coverage, vandalism and malicious mischief, sprinkler
leakage and all other perils included in a standard Special
Causes of Loss or All Risk form for no less than eighty
percent (80%) of the replacement value of all of Tenant's
property located on or within the Premises, together with the
same insurance for replacement of the Premises themselves, for
not less than one hundred percent of the replacement value of
the Premises, excluding footings and foundation, with Tenant's
customary deductibles.
By Landlord: Such insurance as Landlord's deems appropriate
to insure itself for claims for bodily injury and property
damage liability.
1.17 RENEWAL OPTIONS: Four (4) Terms of sixty (60) months each.
1.18 PARKING: As provided for pursuant to the Governing Documents
(as hereinafter defined).
1.19 DOCUMENTS TO WHICH
PROPERTY IS SUBJECT
(THE "GOVERNING
DOCUMENTS):
(i) The Declaration of Indentures for Three Fountains
which is dated as of September 26, 1985 and recorded
at Book 5502, Page 87 of the records of Polk County,
Iowa on September 27, 1985 ("Indentures");
(ii) The Restatement of Declaration of Indentures for
Three Fountains which is dated as of November 30,
1988 and recorded at Book 6007, Page 490 of the
records of Polk County, Iowa on December 8, 1988
("Restated Indentures");
(iii) The Declaration of Covenants, Conditions,
Restrictions and Easements for The Shoppes at Three
Fountains which is dated as of September 18, 1996 and
recorded at Book 7486, Page 265 of the records of
Polk County, Iowa on September 18, 1996 ("Master
Covenants"); and
(iv) The Supplemental Declaration of Covenants,
Conditions, Restrictions, and Easements for Property
to become ▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ recorded
at Book 7605, Page 427 of the records of Polk County,
Iowa on April 3, 1997 ("Supplemental Covenants")
The Indentures, Restated Indentures, Master Covenants and
Supplemental Covenants are collectively referred to herein as
the "Governing Documents").
ARTICLE 2
GRANT , TERM and OPTIONS TO EXTEND
2.01 LEASED PREMISES. Landlord demises and leases to Tenant, and Tenant leases
from Landlord, the Building outlined in red on Exhibit A and referred to as ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Leased Premises" or the
"Premises"), which is located on the real property whose legal description is
set forth in Exhibit B attached hereto (said real property and the buildings and
improvements located thereon are from time to time herein called the
"Property"). The Leased Premises consist of approximately
______________(____________) square feet within the Building and a total of
_____ (___) square feet of real property within the boundary lines of Exhibit B.
Tenant shall be entitled to occupy and use such portion of the Property to
construct and operate a patio or sidewalk cafe for the service of food and
beverages to guests. There shall be no additional Rent or Additional Rent
charged for the Patio area, but the same shall be included in the definition of
Leased Premises for purposes of insurance, Tenant maintenance and liability
matters under this Lease.
2.02 GRANT OF USE OF COMMON AREAS. The use and occupation by Tenant of the
Leased Premises shall include the use, in common with others entitled thereto,
of the common areas of The Shoppes at Three Fountains as applicable, including,
without limitation, employees' parking areas, service roads, loading facilities,
sidewalks, and customer vehicle parking areas, elevators, corridors, stairways,
and such other facilities as may be designated from time to time by Landlord,
subject, however, to the terms and conditions of this Lease.
2.03 POSSESSION/COMMENCEMENT DATE. Landlord shall deliver possession of the
Premises to Tenant in accordance with the terms of the Purchase and Sale
Agreement between Landlord and Rock Bottom Restaurants, Inc., dated February
___, 1998. The date of delivery of possession shall herein be referred to as the
Lease Commencement Date.
2.04 COMMENCEMENT OF RENTAL. Tenant's obligation to pay rent shall commence on
the Lease Commencement Date.
2.05 TERM OF LEASE. The term of this Lease shall be one hundred eighty (180)
months, commencing with the Lease Commencement Date determined in accordance
with the terms of paragraph 2.03, above. If the Lease Commencement Date is other
than the first day of the month, the first year of the Lease Term shall be
deemed to be extended to include such partial month and the following twelve
months, so as to end on the last day of the month.
2.06 OPTIONS TO RENEW. Provided Tenant shall not then be in material default
hereunder, Tenant shall have the option to extend the term of the Lease for four
(4) additional terms of sixty (60) months each upon the same terms and
conditions herein contained. To exercise its option(s) hereunder, Tenant shall
deliver notice of said election to Landlord at least Ninety (90) days prior to
the expiration of the then existing term hereof. The Rent during such
extension(s) shall be as set forth in paragraph 1.12, above.
ARTICLE 3
RENT
3.01 ANNUAL RENTAL. Annual rental hereunder shall be payable in advance in equal
monthly installments on the first day of each and every month throughout the
Lease term at the office of Landlord as set forth in paragraph 1.04 hereof, or
at such other place as Landlord shall designate to Tenant in writing, without
prior demand. Rental for any fractional month shall be prorated and likewise
payable in advance.
3.02 TAX AND INSURANCE ADJUSTMENT. Tenant shall, for each Lease Year, pay to
Landlord as additional rent real estate taxes and assessments that accrue during
the term of the Lease and all insurance for the Property. Landlord shall notify
Tenant of the amount of such assessment and Tenant shall pay Landlord such
amounts within thirty (30) days from the date of notice to it by Landlord.
Additionally, with respect to taxes:
(a) Right to Contest Assessments. Tenant may, at its expense, contest
any and all such real estate taxes in the name of and on behalf of the
Landlord.
(b) Municipal, County, State or Federal Taxes. Tenant shall pay, before
delinquency, all municipal, county and state or federal taxes assessed
against any leasehold interest of Tenant or any fixtures, furnishings,
equipment, stock-in-trade or other personal property of any kind owned,
installed or used in or on the Property.
(c) Rental Taxes. Tenant shall not be responsible for any income,
inheritance or estate taxes imposed on Landlord or the income of
Landlord.
ARTICLE 4
CONDITION OF PREMISES AT COMMENCEMENT OF LEASE
4.01 LANDLORD'S AND TENANT'S WORK. Intentionally omitted.
4.02 ACCEPTANCE OF LEASED PREMISES. Tenant's taking possession of the Premises
at the Lease Commencement Date shall be deemed to be an acceptance of the Leased
Premises.
4.03 WARRANTIES. In connection with this Lease, except as specifically set
forth in this Lease, Landlord makes no warranties or representations concerning
the condition of the Premises at the Lease Commencement Date. The Premises were
constructed by Rock Bottom Restaurants, Inc., and sold to Landlord on a
sale/leaseback transaction. The warranties with respect to the Property and
Premises are contained within the Purchase and Sale Agreement between the
Landlord and Rock Bottom Restaurants, Inc., dated February ___, 1998, and in
Landlord's warranty and covenant of quiet and peaceable possession hereinafter
set forth.
ARTICLE 5
USE OF PREMISES
AND
CONDUCT OF BUSINESS BY TENANT
5.01 USE OF PREMISES. Tenant shall use the Leased Premises for the purpose of a
brewpub and/or sit down restaurant with full service bar and entertainment,
including live and/or background music, and for any other purpose or use allowed
by state and local laws, ordinances or regulations. During the term of this
Lease and any extensions hereof, so long as Tenant operates a restaurant as
described above, neither Landlord nor its affiliates shall lease space in the
Property or in any property or premise within ten (10) miles of the Property to
any other bar and/or restaurant which operates in a similar manner specifically,
but not limited to, a "brewpub" or "brewery/restaurant" that involves the
brewing of beer on or adjacent to the property or premise in question.
5.02 CONDUCT OF BUSINESS BY TENANT. Tenant shall operate the business in the
Premises in accordance with all applicable codes, regulations, statutes and
ordinances applicable to the Premises and Tenant's business, and in accordance
with the Governing Documents and all covenants, declarations and restrictions
imposed on the Premises by the Shopping Center of which the Premises are a part,
and shall indemnify Landlord against any costs or damages which Landlord may
incur which are a result of Tenant having failed to so operate its business in
the Premises.
ARTICLE 6
COMMON AREAS
6.01 CONTROL OF COMMON AREAS BY LANDLORD. Intentionally omitted.
ARTICLE 7
ALTERATIONS, ADDITIONS, AWNINGS, BILLIARD TABLES,
GAMING DEVICES, LIENS AND SIGNAGE
7.01 ALTERATIONS AND ADDITIONS. After completion of the initial construction
project by Rock Bottom Restaurants, Inc., (Tenant's parent corporation), Tenant
shall not, without Landlord's prior written consent, either make or cause to be
made any alterations, additions, or improvements to the Property or to any
exterior signs, shades or awnings which in any one instance involve a cost in
excess of $50,000. Landlord's consent shall not be unreasonably withheld so long
as such alterations do not diminish the value of the Property, it being the
understanding and agreement of the parties that alterations or modifications
which are consistent with a commercial use of the Property or the Premises will
not be deemed to reduce the value of the Property. In the event Landlord's
consent is required under this paragraph 7.01, Tenant shall present to Landlord
plans and specifications for such work at the time approval is sought, and prior
to commencement of construction. Any plans and specifications not expressly
disapproved by Landlord, in writing, stating all reasons for such disapproval,
on or before the fifteenth (15th) day after submission by Tenant shall be deemed
approved. In any event, Landlord's consent shall not be unreasonably withheld,
conditioned or delayed so long as such alterations do not diminish the value of
the Property, it being the understanding and agreement of the parties that
alterations or modifications which are consistent with a commercial use of the
Property or the Premises will not be deemed to reduce the value of the Property.
Tenant shall appoint its own designer, architect and contractor for the any work
to be performed on the Premises or the Building by Tenant.
As a further condition to Landlord's consent to alterations, additions,
or improvements, Tenant shall, as required or permitted by Iowa law, advise all
subcontractors, suppliers, materialmen, and laborers that they shall not have
the right to file a Mechanic's Lien against the Property owned by the Landlord.
The Tenant hereby agrees to hold the Landlord harmless from any and all
liabilities of every kind and description which may arise out of or be connected
in any way with said alterations, additions, or improvements. Before commencing
any work in connection with alterations, additions, or improvements, the Tenant,
if requested by Landlord, and only in those instances when Landlord's consent is
required hereunder, shall furnish the Landlord with certificates of insurance
from all contractors performing labor or furnishing materials insuring the
Landlord against liabilities which are customarily covered by such insurance and
which may arise out of or be connected in any way with said additions,
alterations, or improvements, except such liabilities as may arise from the
negligent act or failure to act of Landlord, its agents, representatives,
employees or servants.
7.02 AWNINGS, CANOPIES, BILLIARD TABLES, SILOS, SATELLITE DISHES AND SIGNS
A. SIGNS, AWNINGS, SILOS & CANOPIES: All signs, awnings, canopies,
decorations, lettering, advertising matter, or other items installed by Tenant
shall at all times be maintained by Tenant, at its expense, in good condition
and repair. Tenant shall be allowed, but is not required, to install awnings on
the exterior of the Premises. Tenant shall be allowed, but is not required, to
install a silo on or near the Premises.
B. BILLIARD TABLES/GAMING DEVICES: Landlord has no objection to the use
of billiard/pool tables, or such gaming devices or arrangements as are permitted
by law, in the Leased Premises. Tenant shall provide such support as is
necessary for billiard/pool tables to prevent any structural damage to the
Premises from said tables.
C. SATELLITE DISHES: Landlord has no objection to the placement of
satellite reception dish(es) and equipment on the roof of the Property. Tenant
shall be responsible for the repair of any damage to the roof resulting from the
installation, maintenance, repair and/or removal of the dish(es). If the roof of
the Premises is subject to a warranty, any item installed on the roof by Tenant
shall be installed, maintained and removed in accordance with such reasonable
requirements as Landlord and/or Landlord's roofing contractor shall require so
as to maintain such warranty in full force and effect.
7.03 MECHANICS' LIENS. Tenant shall promptly pay its contractors and materialmen
for all work done and performed for Tenant, so as to prevent the assertion or
imposition of liens upon or against the Leased Premises, and should any such
lien be asserted or filed, Tenant shall bond against or discharge the same
within thirty (30) business days after receipt by Tenant of written request by
Landlord. The Tenant hereby agrees to hold the Landlord harmless from any and
all liabilities of every kind and description which may arise out of or be
connected in any way with said alterations, additions, or improvements. Tenant
is authorized, but not required, to post the property, if permissible under
local or state law, so as to prevent the assertion of liens against the
Premises. Landlord will cooperate with Tenant if Tenant elects to post the
Premises. Nothing in this paragraph 7.03 shall be construed to prohibit Tenant
from contesting any lien or amount claimed thereunder which Tenant deems
objectionable.
ARTICLE 8
MAINTENANCE OF LEASED PREMISES AND SURRENDER
8.01 MAINTENANCE, REPAIR, AND REPLACEMENT BY TENANT. Tenant shall, at its
expense, at all times repair, maintain, and replace the Building and the
Premises, and maintain the same in conformity with governmental regulations in
good order, condition, and repair, including, without limitation (a) the roof,
walls, foundation, and all structural parts; (b) the interior of the Property,
together with exterior entrances, all glass, and all window moldings, (c) all
fixtures, partitions, interior ceilings, floor coverings, and utility lines
within the Leased Premises; (d) all doors, door openers, trade equipment and
machinery, appliances, signs, and appurtenances thereof; and, (e) landscaping,
outside lighting, and parking lot, in conformity with governmental regulations
in good order, condition and repair, with Tenant failing to do so constituting a
default hereunder. The within obligations shall also include, without
limitation, Tenant's obligation to comply with and perform the requirements of:
(i) the Governing Documents, including Article III of the Restated Indentures,
Articles IV and VII of the Master Covenants and Article VII of the Supplemental
Covenants; and (ii) that certain Release executed on April 18, 1997 by Rock
Bottom Restaurants, Inc. in favor of the City of West Des Moines, Iowa and
attached as Exhibit C, both governing the Property of which the Premises are a
part. If Tenant refuses or neglects to commence or complete repairs, maintenance
or replacements promptly and adequately, Landlord may make or complete said
repairs, maintenance or replacements and Tenant shall pay the cost hereof to
Landlord upon demand.
8.02 MAINTENANCE BY LANDLORD. Intentionally omitted.
8.03 SURRENDER OF PREMISES. At the expiration of the tenancy hereby created,
Tenant shall peaceably surrender the Leased Premises, including all alterations,
additions, improvements, and repairs made thereto (but excluding, without
limitation, all trade fixtures, decorations, hoods, furniture, equipment, signs,
and other personal property, installed by Tenant), broom clean and in good
condition and repair, reasonable wear and tear, and damage by casualty,
excepted. Tenant shall remove all its trade fixtures and any of its other
property not required to be surrendered to Landlord before surrendering the
Premises as aforesaid, and shall repair any damage to the Leased Premises caused
by such removal. Any personal property remaining in the premises thirty (30)
days after the expiration of the Lease period shall be deemed abandoned by
Tenant and Landlord may claim the same and shall in no circumstances have any
liability to Tenant therefor.
ARTICLE 9
INSURANCE AND INDEMNITY
9.01 CASUALTY INSURANCE.
A. Tenant shall, at its cost and expense, at all times during the Term
of this Lease and any extensions hereof, maintain bodily injury and property
damage liability insurance covering the Building and the Premises for any
customarily insurable act or omission of Tenant, its employees, agents,
representatives, assigns, guests, invitees, persons in privity with Tenant, or
licensees. Such insurance policy shall be written for not less than $2,000,000
combined single limit of liability for bodily injury and property damage with an
annual aggregate of $2,000,000, and shall include Landlord as an Additional
Insured. Tenant shall deliver to Landlord a certificate of such insurance which
shall also contain a 30-day prior written notice of cancellation provision.
B. Tenant shall also carry during the Term of this Lease and any
extensions hereof, all risk property insurance (herein "Tenant's Property
Insurance") covering fire and extended coverage, vandalism and malicious
mischief, sprinkler leakage and all other perils included in a standard Special
Causes of Loss or All Risk form for at least one hundred percent (100%) of the
replacement value of the Building (less footings and foundations) and of all of
Tenant's property located on or within the Premises, with Tenant's customary
deductibles. Tenant shall deliver to Landlord a certificate of such insurance
which shall also contain a 30-day prior written notice of cancellation
provision. Landlord and Landlord's lender shall be named as Additional Insureds,
as their interests may appear, with respect to such insurance. Landlord agrees
it shall not have any right, title or interest in and to Tenant's Property
Insurance or any proceeds therefrom to the extent such insurance insures
Tenant's personal property.
C. The limits on such insurance shall be re-indexed no more frequently
than once every five (5) years so as to conform to the industry standard and to
the limits carried by other brewpub/restaurants operated by Tenant. Such
insurance shall be provided by a company or companies with an A.M. Best rating
of not less than A X, and authorized to do business in the State of Iowa.
D. Tenant shall also maintain such liquor liability or "dram shop"
insurance as is required by law.
E. If the requirements of the Governing Documents require insurance of
a greater amount and/or having more coverage than prescribed herein, the
requirements of the Governing Documents shall control.
9.02 INDEMNIFICATION CLAUSE. Each party hereto will indemnify, defend and hold
the other party harmless from and against any and all claims, losses, expenses,
costs, judgments, and/or demands arising from the conduct of the other party
with regard to the possession by Tenant of the Premises and/or on account of any
operation or action by Landlord or Tenant and/or from and against all claims
arising from any breach or default on the part of the other party, or any act of
negligence on behalf of the other party, its agents, contractors, servants,
employees, licensees, or invitees, or any accident, injury, or death of any
person or damage to any property in or about the Premises.
9.03 WAIVER OF SUBROGATION. Landlord and Tenant agree that if the interest or
item on which they are required to obtain insurance in connection with the
transaction contemplated hereby shall be damaged or destroyed during the term or
any extension of this Lease by a peril insurable under this Lease, and whether
or not such damage or destruction was caused by the neglect of the other party,
neither party shall have liability to the other or to any insurer of the other
for, or in respect of, such damage or destruction to the extent covered by such
insurance. The waiver of subrogation hereby set forth shall extend only to the
risks insured by the insurance policies required hereby. The foregoing language
notwithstanding, in the event property of one party is damaged or destroyed by
the negligent act or negligent failure to act of the other party, the party at
fault shall be liable to the damaged party for the "deductible" or retainage
amount applicable to the insurance policy of the damaged party.
9.04 ADDITIONAL RENT. If Tenant shall not comply with its covenants made in this
Article 9, Landlord may cause insurance as aforesaid to be issued, in such event
Tenant agrees to pay as additional rent, the premium for such insurance upon
Landlord's demand.
ARTICLE 10
UTILITIES
10.01 UTILITY CHARGES. Tenant shall be solely responsible for and promptly pay
all charges, including any deposits required by a third-party provider, for
water, gas, steam, sewer, electricity, or any other utility or service used or
consumed on the Leased Premises.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
11.01 CONSENT NOT REQUIRED. Tenant may voluntarily, or by operation of law,
assign this Lease in whole or in part, and may sublet all or any part of the
Leased Premises without the prior written consent of Landlord.
11.02 TRANSFERS PERMITTED. In the event that Tenant wishes to sublet the
premises or assign this Lease, in whole or in part, Tenant shall forthwith
notify Landlord in writing of Tenant's desire to sublet the Premises or assign
this Lease, including a summary of the proposed terms, or a copy of any offer,
as the case may be. Landlord shall have fifteen (15) days within which to accept
or reject said assignment or sublease. Any proposed sublease or assignment not
specifically disapproved by Landlord, in writing and specifying all reasons for
such disapproval and delivered to Tenant within said fifteen (15) days, shall be
deemed approved. The foregoing limitation notwithstanding, Landlord acknowledges
that Tenant is a wholly owned subsidiary of Rock Bottom Restaurants, Inc., the
shares of which are publicly traded. Sales of stock via public trading shall not
be deemed a "sale, transfer or other disposition" within the meaning of this
Article 11. Further, Tenant may sublet all or any portion of the Leased
Premises, or assign this Lease, to any corporation or other entity which is a
subsidiary of, or fifty percent (50%) or more of whose shares are owned by
Tenant or Rock Bottom Restaurants, Inc., without the consent of Landlord. In the
event of such a transfer, Tenant will notify Landlord of the name, address and
phone number of the sublessee or assignee. In addition, in the event of such a
transfer, Tenant and Guarantor shall remain liable to Landlord under the terms
of this Lease for the performance by the sublessee or assignee. Any assignment,
subletting, mortgaging or hypothecation permitted hereunder or to which the
Landlord has consented shall be by written instrument under which the assignee
or sublessee shall agree for the benefit of Landlord to be bound by and to
perform this Lease.
11.03 TRANSFERS BY LANDLORD. Landlord shall have the right to sell, convey,
transfer or assign all or any part of its interest in the real property and the
buildings of which the Leased Premises are a part or its interest in this Lease.
All covenants and obligations of Landlord under this Lease, except those already
in existence on the date of conveyance, shall cease as to Landlord upon the
execution of such conveyance, transfer or assignment, but such covenants and
obligations shall run with the land and shall be binding upon the subsequent
owner or owners thereof or of this Lease. All obligations incurred or in
existence prior to the date of transfer shall survive said transfer and remain
the obligation of Landlord.
11.04 NO RELEASE OF GUARANTOR. Any wording or implication herein to the contrary
notwithstanding, any assignment or subletting under this Article 11 shall not
operate to release or waive the obligations of Tenant or any Guarantor under
this Lease.
ARTICLE 12
GOVERNMENT REGULATIONS
12.01 GOVERNMENTAL REGULATIONS. Tenant shall, at its sole cost and expense,
comply with all of the requirements pertaining to the operation of its business
as imposed by county, municipal, state, federal and other governmental
authorities which have jurisdiction over the Premises or Tenant, now in force or
which may hereafter be in force; provided, however, requirements imposed on the
Property in general or the Leased Premises in general, and not required because
of the nature of Tenant's business, shall be complied with at the cost of
Landlord. The foregoing language notwithstanding, Tenant agrees that any
requirements of the Americans with Disabilities Act shall be met at Tenant's
expense; likewise, a requirement imposed on the Property in general or the
Leased Premises in general, and not imposed because of the nature of Tenant's
business, but compliance with which is triggered by a request by Tenant to
remodel or otherwise change the Property, and such request requires a building
permit, shall be met at the expense of Tenant.
ARTICLE 13
DESTRUCTION OF LEASED PREMISES
13.01 TOTAL OR PARTIAL DESTRUCTION. If the Leased Premises shall be partially or
totally destroyed by fire or other casualty insurable under full standard fire
and extended risk insurance, so as to become partially or totally untenantable,
the same (unless Landlord shall elect not to rebuild as hereinafter provided)
shall be repaired and restored by and at the cost of Tenant, and Rent shall
continue during such period of repair and restoration for the longer of six (6)
months or the period for which Tenant's business interruption insurance makes
payments to Tenant as a result of such destruction and interruption of Tenant's
business. Thereafter, a just and proportionate part of the rent, as provided for
hereinafter, shall be abated until the Leased Premises are so restored.
Landlord and Tenant agree to take all reasonable steps to make the proceeds of
their respective casualty insurance coverages available to Tenant so that Tenant
may fulfill its reconstruction obligations hereunder. Landlord and Tenant
additionally agree to take all reasonable steps to mutually assure that the
reconstruction proceeds so as not to trigger the "Developer's Right to
Repurchase" under Article 11.05 of the Master Covenants or Article 7.01 of the
Supplemental Covenants.
If more than one-third (1/3) of the building in which the Leased Premises are
located shall be destroyed or damaged by fire or other casualty, and if the
unexpired portion of the term of this Lease shall be two (2) years or less at
the date of the damage, then Landlord may elect not to repair or rebuild by
giving written notice within thirty (30) days after such occurrence of its
election to terminate this Lease; otherwise, Tenant shall commence and pursue
such reconstruction diligently to completion.
In the event that Landlord shall exercise the right heretofore given to
terminate, then this Lease shall cease as of the date of such damage or
destruction, and all rent or other charges payable by Tenant shall be prorated
to the date of such damage or destruction. In the event that this Lease is not
canceled, then the Rent shall continue during such period of repair and
restoration for the longer of six (6) months or the period for which Tenant's
business interruption insurance makes payments to Tenant as a result of such
destruction and interruption of Tenant's business. Thereafter, a just and
proportionate part of the rent shall be abated until the Leased Premises are so
restored.
13.02 PARTIAL DESTRUCTION OF PROPERTY. In the event that sixty percent (60) or
more of the gross leasable area in the Property shall be damaged or destroyed by
fire or other cause during the last two (2) years of the Lease, or during the
last two (2) years of any extended term, notwithstanding that the Leased
Premises may be unaffected by such fire or other cause, Landlord or Tenant shall
have the right, to be exercised by notice in writing delivered to the other
party, within thirty (30) days after said occurrence, to cancel and terminate
this Lease. Upon the giving of such notice to Tenant, the term of this Lease
shall expire as of the date of the damage, and Tenant shall vacate the Leased
Premises and surrender the same to Landlord pursuant to the terms of the lease,
allowing a reasonable period of time for the closing of Tenant's business and
the removal of Tenant's property from the premises.
ARTICLE 14
EMINENT DOMAIN
14.01 TOTAL CONDEMNATION. If the whole of the Leased Premises shall be acquired
or condemned by eminent domain for any public or quasi-public use or purpose, or
be conveyed in lieu of any such taking, or if a part of the Leased Premises
shall be so acquired or condemned, and if such partial taking or acquisition
renders the Leased Premises unsuitable for the business of Tenant, in Tenant's
reasonable business judgment, then the term of this Lease shall cease and
terminate as of the date of the taking, and all rentals shall be paid up to that
date.
14.02 PARTIAL CONDEMNATION. In the event of a partial taking, or conveyance of
the Leased Premises in lieu thereof, which is not extensive enough to render the
Leased Premises unsuitable for the business of Tenant, in Tenant's reasonable
business judgment, the Landlord, shall promptly restore the Leased Premises to a
condition comparable to its condition immediately prior to such taking (less the
portion lost in the taking), and this Lease shall continue in full force and
effect. In such case, all rents due hereunder shall, from the date of said
taking or conveyance, be abated on a fair and equitable basis to the extent of
any reduction, if any, in the area of the Leased Premises resulting from such
taking and not restored, and also taking into account the impact, if any, of the
loss of parking in the Property.
14.03 DAMAGES. In the event of any condemnation, taking, or conveyance in lieu
thereof, as hereinbefore provided, whether whole or partial, Tenant shall not be
entitled to any part of the award or price, as damages or otherwise, awarded to
Landlord for such condemnation, taking, or conveyance, except to the extent
provided in paragraph 14.04. Tenant hereby expressly waives any right or claim
to any part thereof and assigns to Landlord its interest therein; provided,
however, that where the taking is such as results in a termination of the Lease
pursuant to other provisions of this Article, then and in that event,
notwithstanding anything herein to the contrary, Landlord shall not be entitled
to that portion, if any, of an award made to or for the benefit of Tenant for
loss of Tenant's business or depreciation to and cost of removal of its stock,
trade fixtures and equipment which Tenant is entitled to remove. Tenant shall
have no claim against Landlord for the value of any unexpired term of this
Lease.
14.04 TENANT'S DAMAGES. The foregoing language notwithstanding, Tenant shall
have the right to claim and recover from the condemning authority (but not from
Landlord) such compensation as may be separately awarded to Tenant in Tenant's
own name and right on account of all damages suffered by Tenant of any nature
whatsoever, including, without limitation, court costs and attorney's fees, by
reason of the condemnation and including without limitation any cost which
Tenant may incur in removing its property from the Leased Premises or restoring
all or any portion of the Leased Premises to their former condition.
ARTICLE 15
DEFAULT OF TENANT
15.01 DEFAULT. Any one or more of the following shall constitute an "Event
of Default" under this Lease:
(a) failure of Tenant to pay any Rent, Additional Rent or other charge
due hereunder within ten (10) days after receipt by Tenant of written
notice that the same has not been paid; or ,
(b) Tenant's failure to perform any other of the terms, conditions or
covenants of this Lease to be observed or performed by Tenant for more
than thirty (30) days after receipt of written notice thereof; or, if
such performance cannot reasonably be completed within said thirty
(30)days, failure to commence the performance within said thirty (30)
days and pursue the same diligently to completion, or ,
(c) if Tenant shall file or have filed against it any bankruptcy
proceedings, or take or have taken against it in any court pursuant to
any statute, either of the United States or of any state, a petition of
bankruptcy or insolvency, or for reorganization or for the appointment
of a receiver or trustee of all or a portion of Tenant's property, or
if Tenant makes an assignment for the benefit of creditors, or
petitions for or enters into an arrangement; and shall not withdraw, or
have withdrawn, said filing or petition within sixty (60) days of the
date of filing; or ,
(d) if Tenant shall abandon the Leased Premises (other than during
periods of repair or renovation, or as a result of casualty, force
majeur, or other events beyond the reasonable control of Tenant) and
shall fail to pay sums due hereunder in a timely manner, or suffer this
Lease to be taken under any writ of execution.
If an Event of Default occurs, the Landlord shall, upon proper observance of all
requirements of law, have the right to enter the Leased Premises and take
possession thereof and of all permanent improvements thereon and may remove all
persons and property from the Leased Premises by force, summary action, or
otherwise, and such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant.
Tenant agrees to quit and deliver up possession of the Property, including
permanent improvements to the Property, when this Lease terminates.
15.02 REMEDIES. If an Event of Default occurs, the Landlord may elect to
re-enter, as herein provided, or take possession pursuant to legal proceedings
or pursuant to any notice provided for herein, and Landlord may either terminate
this Lease, or may from time to time and without terminating this Lease make
such alterations and repairs as may be reasonably and commercially necessary in
order to relet the Premises and relet said Premises or any part thereof for such
term or terms (which may be for a term extending beyond the term of this Lease)
and at such rental or rentals and upon such other terms and conditions as
Landlord in its reasonable business judgment and discretion may deem advisable.
Upon each such reletting all rentals received by Landlord from such reletting
shall be applied first to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; second to the payment of reasonable costs and
expenses of such reletting, including reasonable brokerage fees and reasonable
attorneys' fees, and of reasonable costs of such alterations and repairs; third
to the payment of rent due and unpaid hereunder; and the residue, if any, shall
be held by Landlord and applied in payment of future rent as the same may become
due and payable hereunder from Tenant. If such rentals received from such
reletting during any month are less than that to be paid during that month by
Tenant hereunder, Tenant shall be liable for the payment of such deficiency to
Landlord. Such deficiency shall be calculated and become payable monthly. No
such re-entry or the taking of possession of the Leased Premises by Landlord
shall be construed as an election on its part to terminate this Lease or to
accept a surrender thereof unless a written notice of such intention is given to
Tenant. Notwithstanding any such reletting without termination, Landlord may at
any time thereafter elect to terminate this Lease for such previous breach.
Should Landlord at any time terminate this Lease for any Event of Default, in
addition to any other remedies it may have, it may recover from Tenant the
reasonable cost of recovering the Leased Premises. Any reletting shall be done
in such reasonable and commercially prudent manner as Landlord may deem proper.
Tenant agrees that this lease is a lease of "real property in a Property" and
that a debtor in possession and/or trustee in bankruptcy acting pursuant to the
provisions of the revised bankruptcy code, may assume this lease only if, in
addition to such other conditions of this lease and of applicable law, said
debtor in possession/trustee shall provide Landlord with such written assurances
of future performance as are acceptable to Landlord. Any closing of Tenant's
business, or alteration in the size of the premises, by said debtor in
possession/trustee shall be deemed to be a material disruption in the tenant mix
and balance of the Property.
15.03 LEGAL EXPENSES. If suit shall be brought for recovery of possession of the
Leased Premises, and/or the recovery of rent or any other amount due under
provisions of this Lease, or because of the breach of any other covenant herein
contained on the part of the Tenant to be kept or performed, and the breach
shall be established, Tenant shall pay to Landlord, in addition to all other
sums and relief available to Landlord, all reasonable expenses incurred
therefor, including reasonable attorneys' fees to the maximum extent permitted
by law.
If suit shall be brought for the breach of any covenant herein contained on the
part of the Landlord to be kept or performed, and the breach shall be
established, Landlord shall pay to Tenant, in addition to all other sums and
relief available to Tenant, all expenses incurred therefor, including reasonable
attorneys' fees to the maximum extent permitted by law.
15.04 FAILURE TO PAY, INTEREST ON AMOUNT DUE. If either party at any time shall
fail to pay any taxes, assessments, or liens, or to make any payment or perform
any act required by this Lease to be made or performed by it, the party not
required to make the payment or perform the act, without waiving or releasing
the non-performing party from any obligation or default under this Lease, may
(but shall be under no obligation to) at any time thereafter make such payment
or perform such act for the account and at the expense of the non-performing
party. All sums so paid and all costs and expenses so incurred shall accrue
interest at a rate equal to the "prime" rate charged by Norwest Bank of Denver
to its best commercial customers, plus three (3) percentage points, per year,
simple, from the date of payment or incurring thereof by the party making the
payment or performing the obligation of the non-performing party and shall be
paid to the performing party upon demand.
15.05 LIMITATION ON DAMAGES. Any language in this Article 15 or in this Lease to
the contrary notwithstanding, and except as specifically provided in this
Article, neither Landlord nor Tenant shall be liable, each to the other, for
punitive, exemplary, or consequential damages as a result of the breach of such
party's obligations hereunder.
ARTICLE 16
ACCESS BY LANDLORD
16.01 RIGHT OF ENTRY. Upon forty-eight (48) hours' prior written notice,
Landlord or Landlord's agents shall have the right to enter the Leased Premises
at all reasonable times to examine the same and to make such repairs as may be
reasonably necessary and as Landlord is required to make under the terms of this
Lease, and Landlord shall be allowed to take all material into and upon said
Premises that may be required therefor without the same constituting an eviction
of Tenant in whole or in part. Nothing herein contained, however, shall be
deemed or construed to impose upon Landlord any obligation, responsibility or
liability whatsoever for the care, maintenance or repair of the building or any
part hereof, except as otherwise herein specifically provided. During the six
(6) months prior to the expiration of the term of this Lease or any renewal
term, Landlord may exhibit the Premises to prospective tenants. Except in the
case of emergency repairs necessary to prevent or mitigate damage to the
Premises or injury to persons, Landlord shall not exercise any rights under this
paragraph during Tenant's usual "busy" times, being the lunch and dinner periods
of the day.
ARTICLE 17
TENANT'S PROPERTY
17.01 TAXES ON TENANT'S PERSONAL PROPERTY. Tenant shall be responsible for and
shall pay before delinquency all municipal, county, or state taxes assessed
during the term of this Lease against any personal property of any kind owned by
or placed in, upon, or about the Leased Premises by Tenant.
17.02 LOSS AND DAMAGE. Landlord shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow, or leaks from any part of the Leased Premises,
or from the pipes, appliances or plumbing works, or from the roof, street or
subsurface, or from any other place, or by dampness or by any other cause of
whatsoever nature, and whether originating in the Leased Premises or elsewhere,
unless the same be caused by the negligent act or negligent failure to act of
Landlord, or Landlord's agents, representatives, employees, or others in privity
with Landlord. The terms of this paragraph notwithstanding, Landlord shall not
be liable by way of subrogation if the claim is barred or waived under the
waiver of subrogation provisions of this Lease. All property of Tenant kept or
stored on the Leased Premises shall be so kept or stored at the risk of the
Tenant only, and Tenant hereby holds Landlord harmless from any claims arising
out of damage to the same, including subrogation claims by Tenant's insurance
carrier, a waiver of which shall be obtained in advance by Tenant.
17.03 NOTICE BY TENANT. Tenant shall give reasonable notice to Landlord in case
of fire or accidents, or of defects in the Leased Premises or in the building of
which the Leased Premises are a part.
ARTICLE 18
NOTICE PROVISIONS
18.01 NOTICES. Any notice by Tenant to Landlord must be served either:
A. by certified mail, postage prepaid, addressed to Landlord at the
place designated for the payment of rent, or at such other address
as Landlord may designate from time to time by written notice; or,
B. by personal service upon Landlord at such address; or,
C. by nationally recognized overnight courier service to such address;
or,
D. by facsimile transmission to the facsimile number provided to Tenant
in writing.
Until otherwise notified in writing, Tenant shall pay all rent reserved herein
and all other sums required under this Lease at, and the information for notice
is:
B.W.C. Farms, Inc., an Iowa corporation
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice by Landlord to Tenant must be served either:
A. by certified mail, postage prepaid, addressed to Tenant at its
home office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, and to Tenant's General Manager at the Leased
Premises, or at such other address or addresses as Tenant may
designate from time to time by written notice to Landlord; or,
B. by personal service on Tenant at said addresses; or,
C. by nationally recognized overnight courier service to such
addresses; or,
D. by facsimile transmission to the facsimile number provided to
Landlord in writing. Tenant's facsimile number is
(▇▇▇) ▇▇▇-▇▇▇▇.
Notice via certified or registered mail shall be deemed delivered the earlier of
actual delivery or three (3) days after deposit in the mail as described above.
Notice by personal service shall be deemed delivered upon actual receipt. Notice
by nationally recognized overnight courier service shall be deemed delivered the
earlier of actual delivery or two (2) days after deposit with the courier
service. Notice by facsimile shall be deemed delivered on the date transmitted
if transmitted before 12 noon; otherwise, on the next regular business day after
the date of transmission. A business day for the purpose of this Lease means any
day other than Saturday, Sunday or the following national holidays: New Year's
Day, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Day, President's' Day, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans Day, Thanksgiving and Christmas.
Upon receipt of any communication from third parties requiring any response by
Landlord, Tenant agrees to exercise reasonable efforts to transmit said
communication to Landlord in sufficient time for Landlord to comply with the
requirements of said communication.
ARTICLE 19
SUBORDINATION, NONDISTURBANCE, ATTORNMENT,
ESTOPPEL AND PLEDGE OF TENANT'S INTEREST
19.01 SUBORDINATION OF LEASE TO LANDLORD'S LENDERS. Tenant agrees that this
Lease and the estate of Tenant hereby created may be made subject and
subordinate to the lien of any mortgage, mortgages, deeds of trust or similar
encumbrances hereafter placed upon the Leased Premises. Notwithstanding anything
set out in this Lease to the contrary, in the event the holder of any mortgage
or deed of trust elects to have this Lease superior to its mortgage or deed of
trust, then, upon Tenant being notified to that effect by such encumbrance
holder, this Lease shall be deemed prior to the lien of said mortgage or deed of
trust, whether this Lease is adopted prior to or subsequent to the date of said
mortgage or deed of trust; provided, however, neither the holder of the
encumbrance nor any person or entity claiming by or through said holder may
disrupt, terminate or otherwise interfere with Tenant's quiet possession of the
Premises so long as Tenant keeps and performs the covenants of Tenant hereunder.
The agreements herein shall be self-operative and no further instrument of
subordination shall be required. However, upon demand by the holder of any
mortgage covering all or any part of the Property, Tenant shall forthwith
execute, acknowledge and deliver an agreement in favor of and in the form
customarily used by such encumbrance holder. The foregoing language
notwithstanding, Tenant shall not be required to sign, nor presumed to have
signed or agreed to, any document hereunder which is not accurate or does not
contain in form reasonably satisfactory to Tenant language which provides that
notwithstanding the subordination of the Lease to the encumbrance in question,
neither the holder of the encumbrance nor any person or entity claiming by or
through said holder may disrupt, terminate or otherwise interfere with Tenant's
quiet possession of the Premises so long as Tenant keeps and performs the
covenants of Tenant hereunder.
Landlord reserves the right, without notice to or consent of Tenant, to assign
this Lease and/or any and all rents hereunder as security for the payment of any
mortgage loan, deed of trust loan, or other method of financing or refinancing.
If the Property is presently encumbered by a mortgage, deed of trust or other
encumbrance, it shall be a condition of Tenant's liability hereunder that
Landlord obtain from the holders of any such encumbrance(s) a non-disturbance
agreement reasonably acceptable in form and substance to Tenant, conforming with
the terms of this paragraph 19.01.
19.02 ESTOPPEL CERTIFICATE. Tenant agrees, no more frequently than once per
year, upon not less than ten (10) business days' prior notice by Landlord, to
execute, acknowledge and deliver to Landlord, a statement in writing addressed
to Landlord or other party designated by Landlord certifying that this Lease is
in full force and effect (or, if there have been modifications, that the same is
in full force and effect as modified and stating the modifications), stating the
actual commencement and expiration dates of the Lease, stating the dates to
which rent, and other charges, if any, have been paid, that the Leased Premises
have been completed on or before the date of such certificate and that all
conditions precedent to the Lease taking effect have been carried out, that
Tenant has accepted possession, that the lease term has commenced, Tenant is
occupying the Leased Premises and is open for business, and stating whether or
not to the best of Tenant's knowledge and belief there exists any default by
either party in the performance of any covenant, agreement, term, provision or
condition contained in this Lease, and, if so, specifying each such default of
which the signer may have knowledge and the claims or offsets, if any, claimed
by the Tenant, it being intended that any such statement delivered pursuant
hereto may be relied upon by Landlord or a purchaser of Landlord's interest and
by any mortgagee or prospective mortgagee of any mortgage affecting the Leased
Premises or the Property.
Landlord agrees, no more frequently than once per year, upon not less than ten
(10) business days' prior notice by Tenant, to execute, acknowledge and deliver
to Tenant, a statement in writing addressed to Tenant or other party designated
by Tenant certifying that this Lease is in full force and effect (or, if there
have been modifications, that the same is in full force and effect as modified
and stating the modifications), stating the actual commencement and expiration
dates of the Lease, stating the dates to which Rent, and other charges, if any,
have been paid, that the Leased Premises have been completed on or before the
date of such certificate and that all conditions precedent to the Lease taking
effect have been carried out, that Tenant has accepted possession, that the
lease term has commenced, Tenant is occupying the Leased Premises and is open
for business, and stating whether or not to the best of Landlord's knowledge and
belief there exists any default by either party in the performance of any
covenant, agreement, term, provision or condition contained in this Lease, and,
if so, specifying each such default of which the signer may have knowledge and
the claims or offsets, if any, claimed by the Landlord, it being intended that
any such statement delivered pursuant hereto may be relied upon by Tenant or any
person to whom Tenant may deliver such certificate.
19.03 ATTORNMENT. Tenant agrees that no foreclosure of a mortgage affecting the
Leased Premises, nor the institution of any suit, action, summary or other
proceeding against the Landlord herein, or any successor Landlord, or any
foreclosure proceeding brought by the holder of any such mortgage to recover
possession of such property, shall by operation of law or otherwise result in
cancellation or termination of this Lease or the obligations of the Tenant
hereunder, and upon the request of the holder of any such mortgage, Tenant
covenants and agrees to execute an instrument in writing satisfactory to such
party or parties or to the purchaser of the mortgaged premises in foreclosure
whereby Tenant attorns to such successor in interest. The foregoing language
notwithstanding, Tenant shall not be required to sign, nor presumed to have
signed or agreed to, any document hereunder which does not contain in form
reasonably satisfactory to Tenant language which provides that notwithstanding
the attornment document, neither the holder of the document nor any person or
entity claiming by or through said holder may disrupt, terminate or otherwise
interfere with Tenant's quiet possession of the Property or the Premises so long
as Tenant keeps and performs the covenants of Tenant hereunder.
19.04 PLEDGE OF PERSONAL PROPERTY AND/OR LEASE INTEREST. The foregoing language
notwithstanding, Landlord acknowledges that Tenant may seek financing or funding
which requires it to encumber the personal property owned by Tenant, as well as
similar property from other restaurant operations, by way of a first and prior
security interest in the collateral for the benefit of an institutional lender.
In such event, Landlord shall execute such documents as are reasonably required
by such lender to evidence subordination of Landlord's security interest, if
any, in accordance with this paragraph.
ARTICLE 20
MISCELLANEOUS PROVISIONS
20.01 ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent installments herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent.
20.02 APPLICABLE LAW. This Lease and the rights and obligations of the parties
arising hereunder shall be construed in accordance with the laws of the State of
Iowa.
20.03 CAPTIONS AND SECTION NUMBERS. The headings which have been used throughout
this Lease have been inserted for convenience of reference only and do not
constitute matter to be construed in interpreting this Lease. Words of any
gender used in this Lease shall be held and construed to include any other
gender and words in a singular number shall be held to include the plural, and
vice versa, unless the context requires otherwise. The words "herein," "hereof,"
"hereunder," and other similar compounds of the word "here" when used in this
Lease shall refer to the entire Lease and not to any particular provision or
section. If the last day of any time period stated herein shall fall on a
Saturday, Sunday, or legal holiday, then the duration of such time period shall
be extended so that it shall end on the next succeeding day which is not a
Saturday, Sunday, or legal holiday.
20.04 COVENANTS AND RESTRICTIONS. Subject to the undertakings imposed upon
Landlord pursuant to paragraph 12.01 regarding Governmental Regulations and
Article 13 regarding Destruction of Leased Premises, Tenant shall undertake to
see that the Property and the Premises and the operation of Tenant's business
thereon and therein shall at all times comply with the Governing Documents and
any other covenants, declarations or other restrictions as may be applicable to
the Property and Premises from time to time and Tenant shall bear all costs
associated with such compliance.
20.05 COUNTERPARTS. This Lease may be executed in several counterparts, each of
which shall be full effected as an original and all of which together shall
constitute one and the same instrument.
20.06 ENTIRE AGREEMENT. The Lease, the Exhibits and any Rider set forth all the
covenants, promises, agreements, conditions and understandings between Landlord
and Tenant concerning the Leased Premises and there are no covenants, promises,
agreements, conditions or understandings, either oral or written, between them
other than as herein set forth. All prior communications, negotiations,
arrangements, representations, agreements and understandings, whether oral,
written or both, between the parties hereto, and their representatives, are
merged herein and extinguished, this Lease superseding and canceling the same.
Except as herein otherwise provided, no subsequent alteration, amendment, change
or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and executed by the party against which such subsequent
alteration, amendment, change or modification is to be enforced. If any
provision contained in any Exhibit or Rider hereto is inconsistent with any
printed provisions of this Lease the provision contained in such Exhibit or
Rider shall supersede said printed provision.
20.07 EXHIBITS. All references to Exhibits contained herein are references to
Exhibits attached hereto, all of which are made a part hereof for all purposes
the same as if set forth herein verbatim, it being expressly understood that if
any Exhibit attached hereto which is to be executed and delivered contains
blanks, the same shall be completed correctly and in accordance with the terms
and provisions contained herein and as contemplated herein prior to or at the
time of execution and delivery thereof.
20.08 FACSIMILE SIGNATURES. Facsimile copies bearing copies of the signatures of
Landlord and Tenant shall be binding upon the parties until such time as each
party has received a copy of this Lease bearing original signatures.
20.09 FORCE MAJEURE. In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war, or other reason of a like nature not the fault of the party
delayed in performing work or doing acts required under the terms of this Lease,
then the time allowed for performance of such act shall be extended by a period
a equivalent to the period of such delay. The provisions of this Section 20.09
shall not operate to excuse Tenant, or Landlord as the case may be, from the
prompt payment of Rent or any other payments required by the respective parties
under the terms of this Lease.
20.10 GUARANTOR. This Lease is Guaranteed by Rock Bottom Restaurants, Inc.,
pursuant to the Guaranty attached hereto as Exhibit D.
20.11 HAZARDOUS MATERIALS: Neither Landlord nor Tenant will store, use, or
dispose of any hazardous, toxic, corrosive, explosive, reactive or radioactive
matter in, on, or about the Premises or the Property. Landlord and Tenant will
comply with all applicable environmental laws and permitting requirements
impacting the operations on the Leased Premises. Tenant shall indemnify and hold
harmless the Landlord from any claims or actions, including, without limitation,
costs, reasonable attorneys' fees and costs of remediation, arising out of
Tenant's use, storage or disposal of toxic or hazardous materials on or in the
Leased Premises.
20.12 NO PARTNERSHIP OR OTHER ASSOCIATION. Landlord does not, in any way or for
any purpose, become a partner of Tenant in the conduct of its business or
otherwise, or joint venturer or a member of a joint enterprise with Tenant.
20.13 NOTICE TO LANDLORD OF DEFAULT. In the event of any act or omission by
Landlord which would give Tenant the right to terminate this Lease, or make any
claim against Landlord for the payment of money, Tenant will not make such claim
or exercise such right until it has given written notice of such act or omission
to the Landlord, and after fifteen (15) days shall have elapsed following the
giving of such notice, during which Landlord has not commenced diligently to
remedy such act or omission or to cause the same to be remedied.
20.14 PARTIAL INVALIDITY. If any one or more of the provisions of this Lease, or
the applicability of any such provision to a specific situation, shall be held
invalid or unenforceable, such provision shall be modified to the minimum extent
necessary to make it or its application valid and enforceable, and the validity
and enforceability of all other provisions of this Lease and all other
applications of any such provisions shall not be affected thereby.
20.15 PRELIMINARY NEGOTIATIONS. This Lease is executed in conjunction with the
Purchase and Sale Agreement dated February ___, 1998, between B.W.C. Farms, Inc.
or assigns and Rock Bottom Restaurants, Inc. Tenant's obligations under this
Lease are contingent or conditioned only upon the closing of the transaction
contemplated by said Purchase and Sale Agreement. If for any reason said
transaction does not close, and Landlord does not acquire title to the Property,
the Lease shall be of no force or effect, and each party shall be released from
any obligation hereunder.
20.16 QUIET ENJOYMENT, LANDLORD'S COVENANT. Upon payment by Tenant of the rents
herein provided, and upon the observance and performance of all the covenants,
terms and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Leased Premises for the term hereby
demised without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through, or under Landlord. In that
regard, and notwithstanding any other language herein to the contrary, when
exercising its rights and performing its obligations under this Lease, Landlord
shall take no action which shall interfere with the conduct of Tenant's
business, cause inconvenience to Tenant's customers, increase Tenant's cost of
doing business or cost for common area maintenance and expenses, or change or
interfere with the ingress/egress provided to and from the Leased Premises, or
change, decrease or interfere with Tenant's signage, without Tenant's prior
written consent, which consent shall be given or withheld in Tenant's reasonable
business judgment. The within limitation shall not apply to actions taken by
Landlord to enforce its rights after a default and failure to cure by Tenant,
and shall not apply to the extent Landlord and Tenant are governed by the
Governing Documents and other rules, regulations, covenants, restrictions, etc.
applicable to the Property and the Premises.
20.17 REAL ESTATE COMMISSIONS. Landlord and Tenant warrant to each other they
have not dealt with any broker or Realtor with respect to this transaction.
20.18 RECORDING. A certificate or memorandum of this Lease, prepared by
Landlord, may at the option and expense of Landlord, be recorded. Tenant shall
execute any such certificate or memorandum which accurately reflects the general
non-monetary terms of this Lease upon request by Landlord; provided, however, no
such certificate or memorandum shall state the amount of rent or other charges
payable by Tenant to Landlord under this Lease.
20.19 TENANT'S ASSERTION OF LANDLORD'S RIGHTS. So long as Tenant is not in
default under the terms of the within Lease, Landlord assigns to Tenant, at
Tenant's expense, Landlord's right to audit the Common Area Maintenance charges
of The Shoppes at Three Fountains as provided in Article 5.02 of the Master
Covenants.
20.20 WASTE. Tenant shall not allow nor commit waste on or about the Premises.
20.21 NO WAIVER CUMULATIVE RIGHTS. The various rights and remedies contained in
this Lease shall not be exclusive of any other right or remedy, but shall,
except as specifically set forth otherwise, be cumulative and in addition to any
other remedy now or hereafter existing at law, in equity, or by statute. No
delay or omission of any exercise of any right by either party shall impair any
such right, or constitute or give rise to a waiver of any right or of any
default or any acquiescence therein. One or more waivers of any covenant or
condition of this Lease by either party shall not constitute or give rise to any
waiver of any subsequent rights under the same covenant or condition. The
consent or approval by either party to or of any act or thing requiring consent
or approval shall not be deemed to waive or render unnecessary consent to
approval of any subsequent similar act.
ARTICLE 21
HOLDING OVER; SUCCESSORS
21.01 HOLDING OVER. In the event Tenant remains in possession of the Leased
Premises after the expiration of the tenancy created hereunder, and without the
execution of a new lease, Tenant, at the option of Landlord, shall be deemed to
be occupying the Leased Premises as a tenant from month to month, at one hundred
fifty percent (150%) of the Base Rent for the last Lease Year of the term,
subject to all the other conditions, provisions and obligations of this Lease
insofar as the same are applicable to month-to-month tenancy.
21.02 SUCCESSORS AND ASSIGNS. Except as otherwise herein provided, this Lease
and all the covenants, terms, provisions and conditions herein contained shall
inure to the benefit of and be binding upon the heirs, representatives,
successors and assigns of each party hereto, and all covenants herein contained
shall run with the land and bind any and all successors in title to Landlord.
TENANT: LANDLORD:
WALNUT BREWERY, INC., B.W.C. FARMS, INC.,
a Colorado corporation, an Iowa Corporation
By:_________________________ By:_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President