EXHIBIT 10.10.2
ASSIGNMENT AND CONSENT
This Assignment and Consent ("Agreement") is given effective January
____, 1999 by the Landlord, XXXX XXXXX ("Xxxxx"), and the Guarantors,
AUSTIN'S STEAKS & SALOON, INC. ("Austin's"), a Delaware corporation, and XXXX
X. XXXXXX, III ("Xxxxxx") to the current Tenant, CHARLIE'S ON THE LAKE, INC.,
a Nebraska corporation ("COL") and the Assignee, CHARLIE'S SEAFOOD GRILL,
INC., a Nebraska corporation ("CSG").
RECITALS:
A. On or about March 10, 1994, Austin's Lincoln, Inc., a Nebraska
corporation, as Tenant, and Xxxxx, as Landlord, entered into a certain
Commercial Lease (herein referred to as the "Lease"), pertaining to real
property in Lincoln, Lancaster County, Nebraska commonly known as Xxxx 0 xxx
0, Xxxxxxxxxxxx Xxxxxxx Xxxxx 9th Addition (the "Property").
B. On or about March 16, 1998, Austin's Lincoln, Inc., a subsidiary of
Austin's, assigned to COL all of its interest as Tenant in the Lease incident
to the sale of certain Business Assets, and Xxxxxx executed a personal
guaranty of Lease limited to $40,000. The Lease had been previously
guaranteed by Austin's pursuant to the terms and provisions of a Lease
Guaranty dated March 10, 1994 in favor of Xxxxx as Landlord.
X. Xxxxx consented to the assignment referred to in paragraph B above
by a Consent to Assignment ("Prior Consent") executed on or about March 16,
1998.
D. Paragraph 12 of the Lease requires the prior written consent of
Xxxxx to any further assignment thereof, and paragraph 8 of the Prior Consent
requires the consent of Austin's and Xxxxxx to any such assignment.
E. In connection with the sale of certain Business Assets from COL to
CSG, COL now desires to further assign the Lease to CSG, and Xxxxx, Austin's
and Xxxxxx are willing to give their consent to such further assignment upon
the terms and conditions herein stated.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and consents herein contained, it is agreed as follows:
1. CONSENT BY XXXXX. Xxxxx hereby agrees and consents to the assignment
of the Lease to CSG, effective as of the date this Assignment and Consent is
fully executed, provided that COL and CSG, as applicable, satisfy the
conditions precedent set forth herein.
2. CONSENT BY AUSTIN'S. Austin's hereby agrees and consents to the
assignment of the Lease to CSG, effective as of the date this Assignment and
Consent is fully executed, provided that COL and CSG, as applicable, satisfy
the conditions precedent set forth herein.
3. CONSENT BY XXXXXX. Xxxxxx hereby agrees and consents to the
assignment of the Lease to CSG, effective as of the date this Assignment and
Consent is fully executed, provided that COL and CSG, as applicable, satisfy
the conditions precedent set forth herein.
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4. CONDITIONS PRECEDENT. This Agreement and the consents granted
pursuant hereto, is expressly subject to and conditioned upon COL and CSG
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, Austin's and Xxxxxx.
b. All sums due and owing Xxxxx pursuant to the Lease up to and
including the date of this agreement shall be paid in full.
x. Xxxxxx shall acknowledge the continued effectiveness of his personal
guaranty of the Lease limited to $40,000.
d. Xxxx Xxxxxx, principal of COL shall execute a personal guaranty of
the Lease, to be effective for a period of one year from execution,
limited to $40,000.
x. Xxxxxx'x of Lincoln, Inc. ("AOLI"), the original tenant and COL as
AOLI's assignee, shall each acknowledge, pursuant to Article 12.b of the
Lease, the neither Xxxxx'x consent to the AOLI/COL assignment of 3/16/98
nor this assignment release AOLI or COL.
5. FURTHER ASSIGNMENT. Article 12a of the Commercial Lease is hereby
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 corporation and individual are Guarantors of this Commercial
Lease. Said consent may be withheld in the sole discretion of the
Guarantors without regard to the reasonableness or unreasonableness
of any refusal to provide such consent.
6. LEASE ASSIGNMENT. For good and valuable consideration, the receipt
and sufficiency of which is hereby specifically acknowledged, COL hereby
sells, assigns, transfers and sets over unto CSG all of its right, title and
interest in, to and under the Lease and in and to the Property therein leased.
7. ASSUMPTION OF LEASE. CSG hereby accepts said assignment and hereby
specifically agrees to:
a. Assume, keep, observe and perform all the conditions, covenants and
obligations imposed on the Tenant as set forth in the Lease;
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b. To make all payments which may hereafter become due to the Landlord
under the Lease, according to the terms and conditions of the Lease; and
c. CSG hereby agrees to provide Xxxxxx with monthly financial
statements for its operations by the 25th of the following month, for a
period of one year. Should CSG achieve 70% of its business plan sales for
the first year of operations, its obligation to provide monthly statements
hereunder shall cease, but if CSG shall fail to achieve 70% of its business
plan sales during the first year of operations, monthly financial reporting
pursuant to this paragraph shall continue until it has achieved such level
of annual sales.
8. CONTINUING OBLIGATIONS. Austin's and Xxxxxx each acknowledges that
it has previously guaranteed the performance of the Lease pursuant to a
written Guaranty, and that each will continue to be bound according to the
terms, conditions, covenants and limitation of their respective Guaranty,
notwithstanding this Agreement. AOLI and COL hereby each acknowledge,
pursuant to Article 12.b of the Lease, that neither Xxxxx'x consent to the
AOLI/COL assignment of 3/16/98 nor this assignment release AOLI or COL.
9. CSG'S REPRESENTATIONS. CSG hereby represents and declares that the
CSG has relied wholly upon its individual judgement and that of its
principals 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
Lease. The decision to consummate the transaction by the CSG is made without
reliance upon any statement of representation of Xxxxx, Xxxxxx or Xxxxxx'x
and further, CSG hereby releases Xxxxx, Xxxxxx and Xxxxxx'x and the
affiliates of each of them from any action, casue of action, or loss arising
from CSG's investigation and purchase of the Business Assets of COL and
assumptions of the obligations of the Lease.
10. INDEMNITY BY COL. COL hereby covenants, warrants and represents to
end with CSG and Xxxxx that it will indemnify and hold CSG and Xxxxx harmless
from any and all claims or causes of action which may be made or asserted
against CSG or Xxxxx as a result of act or omission by anyone, if such claim
or cause of action is based upon any act of omission arising out of the
ownership, operation or management of the Business Assets and if such act or
failure to act occurred at any time prior to the date of this Assignment.
11. INDEMNITY BY CSG. CSG hereby covenants, warrants and represents to
and with COL and Xxxxx that it will indemnify and hold COL and Xxxxx harmless
from any and all claims or causes of action which may be made or asserted
against COL or Xxxxx as a result of act or omission by anyone, of such claim
or cause of action is based upon any act of omission arising out of the
ownership, operation or management of the Business Assets and if such act or
failure to act occurred at any time after the date of this Assignment.
12. JOINT INDEMNIFICATION AND RELEASE. COL and CSG hereby agree to
defend, indemnify and hold Xxxxx harmless from and against any and all
claims, demands, costs, attorney fees, or other damages or injuries which
Xxxxx may sustain as the result of any dispute arising in
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connection with this sale of the Business Assets by COL to CSG. COL and CSG
hereby 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 unforseen acts or failures
to act and the consequences thereof arising out of the investigation,
consideration, negotiations, execution of the Lease and the Guaranty and
operation of the business to the date of this Agreement.
13. NOW WAIVER. Neither Xxxxx'x consent to this proposed Assignment of
the Lease by COL to CSG, nor the terms of any agreement entered into between
COL and CSG 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 Lesse or any
guaranty thereof.
14. ESQUIRE AGREEMENT. This agreement supercedes 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 representations, warranty,
agreement, or covenant of Xxxxx not set forth herein.
IN WITNESS WHEREOF, the parties have executed this Assignment and
Consent, to be effective the date first written above.
COL:
Charlie's On The Lake, Inc.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx, President
CEC:
Charlie's On The Lake, Inc.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx, President
AUSTIN'S:
Austin's Steaks & Saloon, Inc.
By: /s/ Xxxx X. Xxxxxx III
-------------------------------------
Xxxx X. Xxxxxx III, President
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AOLL:
Austin's of Lincoln, Inc.
By: /s/ Xxxx X. Xxxxxx III
-------------------------------------
Xxxx X. Xxxxxx III, President
XXXXXX:
/s/ Xxxx X. Xxxxxx, III
-------------------------------------
Xxxx X. Xxxxxx, III
STATE OF NEBRASKA )
) ss.
COUNTY OF XXXXXXX )
The foregoing instrument was acknowledged before me this ____ day of
February, 1999 by Xxxx Xxxxxx, President of Charlie's On The Lake, Inc., a
Nebraska corporation, on behalf of the corporation.
-------------------------------------
Notary Public
STATE OF NEBRASKA )
) ss.
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 5th day of
February, 1999 by Xxxx X. Xxxxxx III, President of Austin's Steaks & Saloon,
Inc., a Delaware corporation, on behalf of the corporation.
GENERAL NOTARY-State of Nebraska /s/ Xxxxxxxx X. Xxxxxx
XXXXXXXX X. XXXXXX -------------------------------------
My Comm. Exp. July 22, 0000 Xxxxxx Xxxxxx
XXXXX XX XXXXXXXX )
) ss.
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 5th day of
February, 1999 by Xxxx X. Xxxxxx III, President of Austin's of Lincoln, Inc.,
a Nebraska corporation, on behalf of the corporation.
GENERAL NOTARY-State of Nebraska /s/ Xxxxxxxx X. Xxxxxx
XXXXXXXX X. XXXXXX -------------------------------------
My Comm. Exp. July 22, 2000 Notary Public
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STATE OF NEBRASKA )
) ss.
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 5th day of
February, 1999 by Xxxx X. Xxxxxx, III.
GENERAL NOTARY-State of Nebraska /s/ Xxxxxxxx X. Xxxxxx
XXXXXXXX X. XXXXXX -------------------------------------
My Comm. Exp. July 22, 2000 Notary Public
IN WITNESS WHEREOF, the undersigned executes this Agreement and Consent,
to be effective the date first written above.
-------------------------------------
Xxxx Xxxxx
STATE OF NEBRASKA )
) ss.
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this _____ day of
February, 1999 by Xxxx Xxxxx.
-------------------------------------
Notary Public
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SIGNATURE PAGE OF XXXX XXXXX TO THE ASSIGNMENT
AND CONSENT
IN WITNESS WHEREOF, the undersigned executes this Assignment and Consent, to
be effective the date first written above.
LANDLORD:
/s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx Xxxxx, Date Feb. 3, 0000
XXXXX XX XXXXXXXX )
) ss.
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 5th day of
February, 1999, by Xxxx X. Xxxxx, Landlord.
GENERAL NOTARY-State of Nebraska /s/ Xxxxxxx X. Xxxxxxx
XXXXXXX X. XXXXXXX -------------------------------------
My Comm. Exp. Sept. 13, 2000 Notary Public
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