Exhibit 10.45
ASSIGNMENT AND ASSUMPTION OF LEASE
This Assignment and Assumption of Lease ("Assignment") is made effective as of this 21st day of January, 2002 by and between Shells Seafood Restaurants, Inc., a Delaware corporation ("Assignor") and Famous Dave's Ribs, Inc., a
Minnesota corporation ("Assignee") with reference and respect to the following facts and circumstances:
A. LPF Corporation n/k/a LPF Limited Liability Company, a Kentucky
limited liability company(the "Landlord") is the owner of that
certain land and building which is located at 4931 Houston Road,
Florence, Kentucky and is presently known and operated as Shell's
Seafood Restaurant in Foltz Plaza (the "Property").
B. Pursuant to Articles of Merger dated December 29, 1999 and that
Agreement of Merger dated December 28, 1999, LPF Corporation was
merged into Leo Foltz Limited Liability Company, a Kentucky limited
liability company, and the name of the surviving company was
thereafter changed to LPF Limited Liability Company.
C. Mary Ellen Foltz, Landlord's predecessor in interest and Brinker
Restaurant Corporation, Assignor's predecessor in interest, entered
into a certain Lease Agreement dated effective April 24, 1993 (such
lease, as amended by documents referenced herein and by this
Assignment and Assumption of Lease, is referred to collectively as
the "Lease") for the Property, a copy of which is attached hereto as
Exhibit A.
D. The Landlord succeeded Mary Ellen Foltz as to her interest in the
fee title to the Property and her interest in the Lease by Deed
dated September 1, 1994, recorded in Book 555, Page 187 of the Boone
County Clerk's Office, Boone County, Kentucky.
E. Brinker Restaurant Corporation assigned its interest in the Lease
and the Property to Brinker Kentucky, Inc., pursuant to that certain
Assignment Agreement dated May 31, 1995 (the "Brinker Assignment"),
and Brinker Kentucky, Inc. subsequently assigned its interest in the
Lease and the Property to Assignor pursuant to that certain
Assignment, Assumption and First Amendment to Lease Agreement dated
January 27, 1997, which was subsequently amended pursuant to a
certain Amendment No. 1 to Assignment, Assumption and First
Amendment to Lease Agreement dated March 28, 1997, copies of which
are attached hereto as Exhibit B (collectively, the "Shells
Assignment").
F. The Assignor desires to assign its right, title and interest in, to
and under the Lease and the Property to Assignee, and Assignee
desires to accept
such assignment upon and subject to all of their terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing facts and circumstances, the mutual covenants and promises contained herein and after good and valuable consideration, the receipt and sufficiency of which is acknowledged by each of the parties, the parties do hereby agree to the following:
1. Definitions. Each capitalized term used in this Assignment shall have the same meaning as is ascribed to such capitalized term in the Lease, unless otherwise provided for herein.
2. Assignment and Assumption. Subject to the terms and conditions contained herein, effective as of the Assignment Effective Date (hereinafter defined) Assignor hereby assigns to Assignee all of its right, title and interest in, to and under the Lease and the Property (including all of Assignor's rights, title, and interest in and to any prepaid rents as have been paid by Assignor pursuant to the Lease and all options to renew or extend the Lease and all options to purchase the Property), and Assignee, for itself and its successors, permitted assigns and legal representatives, hereby accepts such assignment, assumes all of Assignor's obligations under the Lease, covenants and agrees to be bound by all of the provisions thereof and to perform all of the obligations of the tenant thereunder (including, without limitation, the payment as and when due of all rent) from and after the Assignment Effective Date. Such assignment and assumption is made upon, and is subject to, all of the terms, conditions and provisions of this Assignment.
3. Subsequent Sublease. Assignor and Assignee expressly acknowledge and agree that this Assignment is part of a transaction in which Assignee is subleasing the Property to Best Que, LLC, a Kentucky limited liability company, pursuant to a Sublease Agreement attached hereto as Exhibit C, and that Best Que, LLC intends to operate the Property as a "Famous Dave's" Restaurant, pursuant to a franchise agreement between Assignee and Best Que, LLC (the "Subsequent Sublease"). Assignor covenants and agrees that it will reasonably cooperate with Assignee in its efforts to convert the Property to a "Famous Dave's" bar-b-que restaurant, at no cost to Assignor.
4. Effectiveness Contingent Upon Certain Events. Assignor and Assignee expressly acknowledge, covenant and agree upon the following:
4.1. Assignee's Conditions. Assignor expressly acknowledges and agrees that unless the following conditions are satisfied in full to Assignee's satisfaction on or before a date which is forty-five (45) days after the date on which this Assignment and Assumption of Lease becomes fully executed ("Assignee's Contingency Date") the Assignee may, as its sole remedy, terminate this Assignment by notice to Assignor and Landlord on or prior to the Assignee's Contingency Date;if Assignee fails to provide such notice by such date Assignee shall be deemed to have waived both its right to terminate this Assignment due to a failure of such conditions to be satisfied and any contingency set forth herein based on such conditions: (i) the full execution and delivery of the Subsequent Sublease, and (ii) the written consent of Landlord to the
2
Subsequent Sublease, as evidenced by the Landlord's execution and delivery of the Landlord Consent attached to this Assignment.
4.2. Assignor's Conditions. Assignee expressly acknowledges and agrees that unless any one of the following conditions is satisfied in full to Assignor's satisfaction on or before a date which is forty-five (45) days after the date on which this Assignment and Assumption of Lease becomes fully executed ("Assignor's Contingency Date") the Assignor may, as its sole remedy, terminate this Assignment by notice to Assignee and Landlord on or prior to the Assignor's Contingency Date; if Assignor fails to provide such notice by such date, Assignor shall be deemed to have waived both its right to terminate this Assignment due to a failure of any of such conditions to be satisfied and any contingency set forth herein based on any of such conditions being satisfied: (i) all of Assignor's right, title and interest in and to its sublease dated as of May 30, 1997 with Shoney's, Inc. with respect to a restaurant at 3261 Village Drive, Middletown, Warren County, Ohio ("Middletown Sublease") is assigned to Assignee and Assignee assumes the Middletown Sublease and all obligations and liabilities of Assignor thereunder for the remainder of the Middletown Sublease term and the current Prime Lessor (as defined in the Middletown Sublease) has consented in writing to such assignment and assumption of the Middletown Sublease to the extent required under the Prime Lease (as defined in the Middletown Sublease), or (ii) the Middletown Sublease is terminated and Assignor is released from further liability thereunder, or (iii) Assignor's fee simple title to its real property with a street address of 3802 East 82nd Street, Indianapolis, Indiana is conveyed to Assignee, the subtenant under the Subsequent Sublease, any affiliate of either, or to any other party identified by any such parties.
4.3. Landlord's Consent. Assignor and Assignee expressly acknowledge and agree that this Assignment is contingent upon receiving the written consent of Landlord to this Assignment, as indicated by Landlord's signature on the Landlord Consent set forth after the signature of Assignor and Assignee hereto. If Landlord shall fail to deliver its written consent to this Assignment within thirty (30) days after the date hereof, then Assignor or Assignee may terminate this Assignment by notice to the other party and Landlord, such notice to be received by such parties at any time after such thirty (30) day period and prior to receipt of Landlord's written consent.
4.4. Effective Date of Assignment. If either party terminates this Assignment in accordance with subsections 4.1, 4.2 or 4.3 of this Section 4 of this Assignment, then this Assignment shall be deemed terminated and of no force or effect. Assignor and Assignee covenant and agree that the effective date of this Assignment ("Assignment Effective Date") shall be the later of the date (i) Assignee waives, or is deemed to have waived, its right to terminate this Assignment pursuant to subsection 4.1 of this Assignment; (ii) Assignor waives, or is deemed to have waived, its right to terminate this Assignment pursuant to subsection 4.2 of this Assignment, or (iii) the Landlord's written consent to this Assignment is received, as contemplated by subsection 4.3 of this Assignment. Within ten (10) days of being requested to do so by either party hereto, Assignor and Assignee covenant and agree to confirm, in writing, the Assignment Effective Date.
3
5. Condition of Property. The Property shall be delivered by Assignor to Assignee in "As Is" condition with all built-in fixtures, equipment, appliances, and all other leasehold improvements presently located thereon. All of such leasehold improvements owned by Assignor shall be and become the property of Assignee subject to no liens, conditional sales contracts, or other encumbrances except for such rights as the Landlord may have in same as provided in the Lease.
6. Assignor's Representations and Warranties. As of the date hereof, Assignor represents and warrants to Assignee, its successors and assigns, as follows:
6.1. Lease. Attached as Exhibit A and Exhibit B to this Assignment is a true and complete copy of the Lease, as pr ...