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LAND AND BUILDING LEASE

Ground Lease Agreement

LAND AND BUILDING LEASE | Document Parties: AVADO BRANDS INC | SKYLINE-FRI 12, MATTHEWS, L.P. | HOPS OF MATTHEWS, LTD. You are currently viewing:
This Ground Lease Agreement involves

AVADO BRANDS INC | SKYLINE-FRI 12, MATTHEWS, L.P. | HOPS OF MATTHEWS, LTD.

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Title: LAND AND BUILDING LEASE
Governing Law: Texas     Date: 1/9/2004
Industry: Restaurants    

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                             LAND AND BUILDING LEASE

 

                                     between

 

                         SKYLINE-FRI 12, MATTHEWS, L.P.

                         a Texas limited partnership, as

 

                                    LANDLORD

 

                                       and

 

                             HOPS OF MATTHEWS, LTD.

                          A Florida Limited Partnership

 

                                    as TENANT

 

 

 

 

 

 

 

 

                                 August 29, 2003

 

 

<PAGE>

 

 

 

                     INDEX TO MASTER LAND AND BUILDING LEASE

 

 

                                    Article

 

                                    RECITALS

 

I.               Demise of Premises                                      1

II.               Term                                                    2

III.             Rent                                                    2

IV.              Use                                                     6

V.               Acceptance of Demised Premises                           6

VI.              Alterations                                             6

VII.             Repairs and Maintenance                                 8

VIII.            Compliance with Law                                     9

IX.               Utilities                                               9

X.               Indemnity                                               9

XI.              Insurance                                              11

XII.             Damage or Destruction                                   14

XIII.            Eminent Domain                                         15

XIV.             Covenants of Landlord                                  17

XV.              Insolvency                                             18

XVI.              Default                                                19

XVII.            Unavoidable Delays, Force Majeure                      23

XVIII.           No Waiver                                              24

XIX.             Notices                                                 24

XX.              Access                                                 25

XXI.             Signs                                                  26

XXII.            Improvements and Fixtures                              26

XXIII.            End of Term                                            27

XXIV.            Holding Over                                           28

XXV.             Assignment and Subletting                              28

XXVI.            Landlord's Loan                                         29

XXVII.           Maintenance of Outside Areas                           31

XXVIII.          Certificates                                           31

XXIX.            Relationship of Parties                                32

XXX.              Recording                                              32

XXXI.            Captions and Section Numbers                           33

XXXII.           Applicable Law                                         33

XXXIII.          Entire Agreement                                        33

XXXIV.           Landlord's Liability                                   33

XXXV.            Attorney's Fees                                        34

XXXVI.           Substitution                                           34

XXXVII.          Environmental                                          34

XXXVIII.         Addenda                                                38

XXXIX.           Counterparts                                           38

 

 

Exhibit A        Location/Legal Description/Address of the Real Property

Exhibit B        Tenant's Personal Property List

Exhibit C        Tenant's Estoppel Certificate

Exhibit D        Memorandum of Lease

Exhibit E        Fixed Rent Allocation

Exhibit F        Subordination, Nondisturbance and Attornment Agreement

Exhibit G        Avado Brands, Inc. Guaranty

 

 

 

<PAGE>

 

 

 

                             LAND AND BUILDING LEASE

 

 

     THIS LAND AND BUILDING   LEASE (the   "Lease") is made and entered into as of

August 29, 2003 (the "Effective Date"), between SKYLINE-FRI 12, MATTHEWS,   L.P.,

a Texas limited   partnership("Landlord")   and Hops Of Matthews,   Ltd., a Florida

limited partnership ("Tenant").

 

                                 R E C I T A L S

 

     A. Landlord is the owner of the tract of real property (the "Real Property"

or   "Property").   The   Property   is more   particularly   described   in   Exhibit A

attached hereto and for purposes   hereof shall include all of Landlord's   right,

title and interest in and to all easements, appurtenances and rights relating to

the Real Property.

 

     B. Tenant   desires to lease from   Landlord the Property so that Tenant may,

in accordance with and subject to the terms, conditions, and restrictions of the

Lease, operate a Hops Grill & Bar restaurant at the Real Property location.   The

buildings and all   improvements   to or on the tract of Real Property,   including

but not limited to all site work, landscaping,   fixtures,   machinery,   equipment

and   systems,   utilities,   and   other   improvements,    is   referred   to   as   the

"Building".   The   personal   property   and moveable   trade   fixtures   (other than

Landlord's   Equipment,   as   defined   in Section   22.03)   located at the   Demised

Premises are owned by Tenant and/or leased from third parties including, without

limitation,   those items generally   described on Exhibit B attached hereto,   and

are not included in the definition of Building or Real Property leased to Tenant

pursuant to this Lease.

 

     C. The Property and the Building   shall be referred to either   individually

or collectively as the "Demised Premises."

 

     D. Tenant desires to lease the Demised Premises from Landlord, and Landlord

desires to lease the   Demised   Premises to Tenant,   on the terms and   conditions

hereinafter set forth.

 

     NOW,   THEREFORE,   in consideration of the lease of the Demised Premises and

the rents,   covenants and   conditions   herein set forth,   Landlord and Tenant do

hereby covenant, promise and agree as follows:

 

                                    ARTICLE I

 

                               DEMISE OF PREMISES

 

     Landlord   does hereby lease unto   Tenant,   and Tenant does hereby hire from

Landlord,   for the term   hereinafter   provided   in   Section   2.01,   the   Demised

Premises   for the use thereof by Tenant,   Tenant's   employees,   concessionaires,

licensees,   agents,   customers and invitees, which use shall be exclusive except

as otherwise provided in Section 3.06 or elsewhere herein.

 

                                   ARTICLE II

 

                                      TERM

 

     Section 2.01

 

      (a) The "Commencement Date" of this Lease shall be upon the Effective Date.

The Lease   shall   continue   for a period   of twenty   (20)   years   following   the

Effective   Date   (the   "Original   Lease   Term")   unless   sooner    terminated   as

hereinafter   provided for. The "Lease Term", as such term is used herein,   shall

mean the Original   Lease Term as extended   (or as may be   extended)   pursuant to

Section 2.02 below unless sooner terminated as hereinafter provided for.

 

     (b) This   Lease   shall be deemed to be in full   force and   effect   upon the

Effective   Date.   Tenant shall be deemed in possession   of the Demised   Premises

upon the Effective Date.

 

     Section   2.02 Tenant shall have the option to extend the term of this Lease

for up to two (2)   separate   option   periods   upon and   subject to the terms set

forth below in this Section   2.02.   The first option   period (the "First   Option

Period") shall commence at the expiration of the Original Lease Term. The second

option period (the "Second   Option   Period") shall commence at the expiration of

the First Option   Period.   The First Option Period and the Second Option Period,

are   sometimes   referred   to herein   collectively   as the "Option   Periods"   and

individually   as an "Option   Period."   Each Option   Period shall   continue for a

period of ten (10)   years   from the   commencement   date of such   Option   Period.

Except as otherwise   expressly   provided herein, all of the terms and conditions

of this Lease   applicable   to the   Original   Lease Term shall   continue to apply

during   each   Option   Period.   To   validly   extend   the Lease   Term   beyond   the

expiration of the Original   Lease Term with the First Option Period (a),   Tenant

must and shall   deliver to Landlord   written   notice of Tenant's   election to so

extend not later than one (1) year prior to the expiration of the Original Lease

Term and (b)no event   shall have   occurred   and be   continuing   which,   with the

passage of time or the giving of any required notice,   would constitute an Event

of Default (such event,   a "Default).   To validly   extend the Lease Term for the

Second   Option   Period , Tenant (x) must and shall   deliver to Landlord   written

notice of Tenant's   election to so extend not later than six (6) months prior to

the expiration of the First Option Period, and (y) shall not be in default under

any   material   term or   condition of this Lease as of the date of such notice or

the   commencement   of   the   Second   Option   Period.   Without   limiting   anything

contained in Article XXXIII hereof, time is of the essence in the performance of

each   provision of this Section 2.02.   Either party,   upon request of the other,

shall execute and   acknowledge,   in form suitable for   recording,   an instrument

confirming   any such   extension,   with Tenant   paying all   applicable   recording

costs.

 

                                       1

<PAGE>

 

                                   ARTICLE III

 

                                      RENT

 

     Section 3.01 Tenant shall pay to Landlord,   from and after the Commencement

Date and thereafter   throughout the Lease Term, the sums set forth in this Lease

as "Rent"   without prior demand   therefore   and without   offset,   deduction,   or

abatement except as may be otherwise expressly provided herein.   Notwithstanding

the foregoing,   any amounts due by Tenant to Landlord hereunder for which no due

date is expressly   specified herein (e.g., the first day of each month) shall be

due within ten (10) days   following   the giving to Tenant by Landlord of written

notice of such   amounts   due,   except   if some   other   period of time   following

written notice or demand is otherwise   expressly provided below, then such other

period shall apply.   As used herein,   "Rent" shall be deemed to include not only

Fixed Rent but also all   additional   sums   payable or owed by Tenant   under this

Lease,   including   without   limitation   as set forth in   Sections   3.05 and 3.07

("Additional Rent"). Except as otherwise expressly provided herein, in the event

of   nonpayment   by Tenant of any Rent,   Landlord   shall have the same rights and

remedies in respect thereof   regardless of whether such Rent   constitutes   Fixed

Rent or Additional   Rent.   All payments of Rent to be paid to Landlord   shall be

paid to Landlord at its election,   in one of the following   manners (which shall

be disclosed in writing to Tenant and may be changed only by a writing delivered

to Tenant):   (1) by mail at the   Landlord's   office   indicated on the first page

hereof or (2) by mail to any other place   designated   by Landlord   upon at least

thirty (30) days' prior written notice to Tenant. If the Commencement Date shall

not be the first day of a calendar month,   then the rent for such month shall be

prorated based upon a Three Hundred Sixty-Five (365) day year.

 

     Section 3.02 Intentionally left blank.

 

     Section 3.03 Fixed Rent: The "Fixed Rent" for the Demised Premises for each

month of the Lease Term prior to the fifth   anniversary of the Commencement Date

shall be   $14,687.50.   On the fifth   anniversary of the   Commencement   Date, and

thereafter,   on each fifth   anniversary of such date   throughout the Lease Term,

(i.e., the fifth, tenth and fifteenth   anniversary of the Commencement Date, and

subject to Section 2.02, the twentieth, twenty-fifth, thirtieth and thirty-fifth

anniversary of the   Commencement   Date) the monthly Fixed Rent shall increase by

ten percent (10%) over the Fixed Rent charged in the immediately preceding month

of the Lease Term,   and such increase   shall apply for the ensuing five (5) year

period.   Tenant   shall pay to   Landlord   Fixed Rent in advance,   without   demand

therefore, beginning on the Commencement Date and thereafter on the first day of

each calendar month commencing with the Commencement Date.

 

     Section 3.04 Intentionally left blank.

 

     Section 3.05 Additional Rent.

 

     (a) All "Real Estate Taxes" (as hereinafter   defined) assessed against,   or

allocable or attributable to the Demised Premises (whether accruing prior to, or

after   the   Effective   Date and   during   the Lease   Term)   shall be deemed to be

Additional   Rent and   shall be   payable   by Tenant as   contemplated   by   Section

3.05(b)   below.   Real Estate   Taxes for the last year of the Lease Term shall be

prorated   based   upon the most   recent   tax bill and   shall be paid by Tenant to

Landlord upon   termination of the Lease.   As used herein,   the term "Real Estate

Taxes" means all taxes and general and special assessments and other impositions

in lieu thereof,   as a supplement thereto and any other tax which is measured by

the value of real property and assessed on a uniform basis against the owners of

real   property,   including   excise   taxes   described in Section 3.05 (d) and any

substitution   in whole or in part of any of the foregoing due to a future change

in the method of   taxation.   Nothing   contained   in this Lease,   however,   shall

require the Tenant to pay any estate, inheritance, corporate, profits, transfer,

franchise or income tax of Landlord, nor shall any of same be deemed Real Estate

Taxes, unless same shall be specifically imposed in substitution for, or in lieu

of,   Real   Estate   Taxes,   and then only to the extent   same are   limited to the

Demised   Premises as if it were the only property owned by Landlord.   If by law,

any general or special   assessment   or like   charge may be paid in   installments

without any penalty or interest , then such   assessment may be paid by Tenant in

such   installments   and Tenant shall only be liable for the portion thereof that

is allocable or attributable to the Lease Term or any portion thereof.

 

     (b) Tenant   shall pay the Real   Estate   Taxes   directly   to the   applicable

taxing   authority   within   fifteen   (15) days   prior to the   earlier   of (i) the

delinquency   thereof, or (ii) the date that any penalty or interest would accrue

on any unpaid   installment.   Landlord   shall   have the tax bill for the   Demised

Premises sent directly by the applicable taxing authority to Tenant,   and Tenant

shall pay the tax bill directly to the collecting   authority,   and in such event

Tenant shall provide Landlord a copy of the paid receipt for each installment of

Real Estate Taxes so paid. If Tenant fails to pay the Real Estate Taxes when due

hereunder,   then Tenant shall,   in addition to all other   remedies   available to

Landlord,   reimburse Landlord for any and all penalties or interest,   or portion

thereof,   incurred by Landlord as a result of such nonpayment or late payment by

Tenant.

 

                                       2

<PAGE>

 

     (c)   Tenant   shall have the right at its own cost and   expense,   to seek an

abatement of Real Estate   Taxes or a reduction   in the   valuation of the Demised

Premises   and/or   contest   the   applicability   of any Real   Estate   Taxes to the

Demised   Premises or the   improvements   thereon Without   limiting the foregoing,

Tenant shall have the right to contest or cause to be contested,   by appropriate

legal   proceedings   conducted in good faith and with due diligence,   at Tenant's

sole cost and expense,   the amount and validity or   application,   in whole or in

part,   of any Real Estate Taxes or lien   therefore,   provided   that Tenant shall

have deposited with Landlord   adequate   reserves for the payment of the taxes as

required by Landlord   (but in no event less than the amount of Real Estate Taxes

in dispute),   unless paid in full under   protest or Tenant shall have   furnished

such security as may be required in the   proceeding.   In any instance   where any

such action or such   proceeding is being   undertaken by Tenant,   Landlord   shall

reasonably   cooperate with Tenant, at no cost or expense to Landlord,   including

participating   (at Tenant's   sole cost and expense) in any   proceeding   in which

Landlord is a necessary   party and   execute   any and all   documents   approved by

Landlord   required   in   connection   therewith.   Tenant   shall be entitled to any

refund (after the deduction   therefrom of all   reasonable   expenses   incurred by

Landlord in   connection   therewith)   of any Real Estate   Taxes and   penalties or

interest thereon received by Tenant or Landlord,   whether or not such refund was

a result of proceedings   instituted by Tenant, which have been paid by Tenant or

paid by Landlord for the benefit of Tenant and repaid to Landlord by Tenant.

 

     (d) Tenant shall pay to Landlord,   with each payment of Rent due hereunder,

all taxes imposed upon Landlord with respect to rental or other   payments in the

nature of a gross   receipts tax, sales tax,   privilege tax or the like,   whether

imposed by a federal, state or local taxing authority,   which when added to such

rental or other payment shall yield to Landlord after   deduction of all such tax

payable   by   Landlord   with   respect to all such   payments   a net   amount   which

Landlord   would have   realized   from such payment had no such tax been   imposed.

Tenant   shall have the right to   contest   any such   taxes   provided   for in this

Section 3.05(d) in accordance   with provisions   relating to contest set forth in

Section 3.05(c) above.   Notwithstanding the foregoing,   but without limiting the

preceding   obligation of Tenant to pay all taxes which are imposed on the rental

or other   payments due under this Lease,   in no event will Tenant be required to

pay any net income taxes (i.e.   taxes which are   determined   taking into account

deductions for depreciation, interest, taxes and ordinary and necessary business

expenses),   franchise taxes of Landlord, any transfer taxes of Landlord or other

tax imposed with respect to the sale, exchange or other disposition by Landlord,

in whole or in part,   of the Property or   Landlord's   interest in the Lease (not

including,   in any event,   any increase in ad valorem taxes or Real Estate Taxes

resulting from such transfer).

 

     Section 3.06 Matters of Record:   Tenant hereby accepts the Demised Premises

in   the   condition   as of the   date   of   possession   hereunder,   subject   to all

applicable   zoning,    municipal,    county,   and   state   laws,   ordinances,    and

regulations,   including   private   easements   and   restrictions,   (whether or not

evidence   thereof is recorded in the public   records),   governing and regulating

the use of the Demised   Premises,   and accepts this Lease subject thereto and to

all matters   disclosed   thereby,   and by any exhibits   attached   hereto.   Tenant

acknowledges    that   neither    Landlord   nor   Landlord's    agent   has   made   any

representation   or warranty as to the suitability of any Leased Property for the

conduct of the Tenant's business.

 

     Section 3.07   Additional   Charges:   Tenant and Landlord agree that the rent

accruing   under this Lease   shall be net to   Landlord   and that all Real   Estate

Taxes   (subject   to   contest   rights),   costs,   promotional   fees,   common   area

maintenance   fees,   expenses   and   charges of every kind and   nature,   including

reasonable   attorneys'   fees incurred by Landlord in enforcing the provisions of

this Lease,   whether or not any legal   proceedings   are   commenced   ("Additional

Charges")   arising   in   connection   with or   relating   to the   Demised   Premises

(excluding,   however,   (1) taxes other than Real Estate Taxes for which Landlord

is responsible   under Section 3.05(a),   and (2) any charges resulting solely and

directly from   Landlord's   gross   negligence or willful   misconduct   and (3) any

payments   for   interest   or   principal   under any fee   mortgage   relating to the

Demised   Premises)   which may arise or become   due at any time   during the Lease

Term) and that all Additional   Charges shall be paid by Tenant.   With respect to

any Additional Charges other than Real Estate Taxes,   Landlord shall bill Tenant

for such   charges from time to time by delivery to Tenant of a true and accurate

statement   (including   reasonable   backup   documentation)   showing in reasonable

detail the Additional   Charges.   Tenant shall pay such Additional Charges within

ten (10) days after   receipt   of such bill.   Landlord   will   provide   reasonable

cooperation   to Tenant   at   Tenant's   sole cost and   expense   in   disputing   any

Additional   Charges that are assessed   against Landlord or the Property by third

parties. Tenant hereby indemnifies, defends, protects, and saves Landlord wholly

harmless from and against any and all Additional   Charges.   As used herein,   the

term "Additional Rent" shall include, without limitation,   all of the following:

(1) any and all Additional Charges for which Tenant is responsible hereunder, or

which Tenant otherwise   assumes or agrees to pay; (2) all interest and penalties

owed to third parties that may accrue on such Additional Charges if Tenant fails

to pay them   timely;   (3) all   other   damages,   costs and   expenses   (including,

without limitation,   reasonable attorneys' fees and other legal and court costs)

which Landlord may suffer or incur in enforcing this Lease;   and (4) any and all

other   sums which may   become   due by reason of   Tenant's   default or failure to

comply with its obligations under this Lease.

 

                                       3<

<PAGE>

 

     Section   3.08 Late Charge:   In addition to all other   remedies set forth in

this Lease,   any payment of Fixed Rent due to Landlord   not received by Landlord

within ten (10) days after such   payment is due   hereunder,   and any   payment of

Additional   Rent due to Landlord   not received by Landlord   when due   hereunder,

shall be   deemed   delinquent   and cause   Tenant   to incur a late   charge of five

percent   (5%) on each   delinquent   payment   (or the   applicable   portion of such

payment that is   delinquent),   due and payable   immediately   with the delinquent

Fixed Rent or delinquent Additional Rent, as the case may be.

 

     Section 3.09 Character of Demised Premises:   From the Commencement Date and

thereafter   throughout   the Lease Term,   Tenant shall   conduct its business in a

first class and   reputable   manner   consistent   with   Tenant's   prior   operating

practices with respect to the Demised Premises.   Tenant shall open and operate a

Hops Bar & Grill   restaurant   at the Demised   Premises   continuously   during all

hours which is customary   for similarly   situated Hops Bar & Grill   restaurants,

subject to temporary closing due to casualty,   condemnation,   remodeling,   Lease

assignment   or   subletting   permitted   pursuant   to Article   XXV, or other force

majeure condition.   The character of the occupancy of the Demised Premises is an

additional consideration and inducement for the granting of this Lease.

 

      Section   3.10    Guaranty.    Avado   Brands,    Inc,   a   Georgia    corporation

("Guarantor")   shall guaranty Tenant's   obligations under this Lease pursuant to

the Guaranty   Agreement   substantially   in the form of Exhibit G, executed as of

the Effective Date.

 

                                   ARTICLE IV

 

                                       USE

 

     Tenant   may   use   the   Demised   Premises   to   operate   a Hops   Bar &   Grill

restaurant,   including   beer, wine and liquor sales,   and such other   incidental

uses   related   thereto in   Tenant's   discretion   or another   nationally   branded

restaurant   concept.   Tenant   may use the   Demised   Premises   only   for the uses

expressly   permitted under this Section,   and for no other use without the prior

written consent of Landlord,   which approval shall not be unreasonably withheld,

delayed or   conditioned.   Notwithstanding   any other   provision of this Article,

Tenant   shall not use,   or suffer or   permit   any   person or entity to use,   the

Demised   Premises or any portion   thereof   for any purpose in   violation   of any

applicable law, ordinance or regulation applicable to the Demised Premises.

 

                                    ARTICLE V

 

                         ACCEPTANCE OF DEMISED PREMISES

 

     Tenant   acknowledges   that it has   owned   the   Demised   Premises   prior   to

execution   of this   Lease and has had the   opportunity   to   perform   all   tests,

studies and   inspections   that it   desires,   and that   Tenant is   accepting   the

Demised   Premises in its AS IS   condition   existing on the date Tenant   executes

this Lease.

 

                                   ARTICLE VI

 

                                   ALTERATIONS

 

     Subject to the provisions of this Article VI, Tenant shall have no right to

make changes,   alterations   or additions   (collectively,   "Alterations")   to the

Building in excess of One Hundred Thousand Dollars   ($100,000.00)   without prior

written   consent   of   Landlord,   which   Landlord   agrees   it will   not   withhold

unreasonably;   provided,   however,   in no event   shall any   Alterations   be made

which,   after   completion,   would:   (i) reduce the value of the   Building   as it

existed   prior to the time that said   Alterations   are made;   or (ii)   adversely

affect the structural   integrity of the Building.   Such amount shall increase by

five percent (5%) on each   anniversary of the Effective Date of this Lease.   Any

and all   Alterations   made by Tenant shall be at Tenant's sole cost and expense.

Prior to the   commencement   of   construction,   Tenant shall deliver   promptly to

Landlord   detailed cost estimates for any proposed   Alterations,   as well as all

drawings,    plans   and   other   information    regarding   such   Alterations   (such

estimates,   drawings,   plans and other information are collectively   referred to

herein as the "Alteration   Information"),   Landlord's   review and/or approval of

any Alteration   Information   shall in no event constitute any   representation or

warranty of Landlord regarding (x) the compliance of any Alteration   Information

with any governmental or legal requirements,   (y) the presence of absence of any

defects in any   Alteration   Information,   or (z) the safety or quality of any of

the   Alterations   constructed in accordance   with any plans or other   Alteration

Information.   Landlord's   review   and/or   approval   of   any   of   the   Alteration

Information   shall not preclude   recovery by Landlord   against Tenant based upon

the Alterations,   the Alteration Information,   or any defects therein. In making

any and all   Alterations,   Tenant also shall   comply   with all of the   following

conditions:

 

     (a) No Alterations shall be undertaken until Tenant shall have (i) procured

and paid for,   so far as the same may be   required,   all   necessary   permits and

authorizations   of all governmental   authorities   having   jurisdiction over such

Alterations,   and (ii) delivered to Landlord at least fifteen (15) days prior to

commencing any such Alterations   written evidence   acceptable to Landlord of all

such permits and authorizations. Landlord shall, to the extent necessary (but at

no cost, expense, or risk of loss to Landlord), join in the application for such

permits or authorizations   whenever necessary,   promptly upon written request of

Tenant.

 

                                       4

<PAGE>

 

     (b) Any and all   structural   Alterations of the Building shall be performed

under the supervision of an architect and/or structural engineer.

 

     (c)   Tenant   shall   notify   Landlord   at least   fifteen   (15) days prior to

commencing any   Alterations so as to permit,   and Tenant shall permit,   Landlord

access to the Demised   Premises in order to post and keep   posted   thereon   such

notice(s)   as may   be   provided   or   required   by   applicable   law   to   disclaim

responsibility for any construction on the Demised Premises.

 

     (d)   Any   and   all   Alterations   shall   be   conducted   and   completed   in a

commercially reasonable time period (subject to the terms of Article XVII), in a

good   and   workmanlike   manner,   and in   compliance   with all   applicable   laws,

municipal   ordinances,   building   codes and   permits,   and   requirements   of all

governmental   authorities having jurisdiction over the Demised Premises,   and of

the local Board of Fire Underwriters, if any; and, within thirty (30) days after

completion   of any and all   Alterations,   Tenant   shall   obtain   and   deliver to

Landlord   a copy   of the   amended   certificate   of   occupancy   for   the   Demised

Premises, if required under applicable law or by governmental   authority. To the

extent   reasonably   practicable,   any   and all   Alterations   shall   be made   and

conducted so as not to disrupt   Tenant's   business;   provided however that major

alterations   which require   closing of the business on a temporary   basis may be

made so long as otherwise in compliance with the provisions of this Lease.

 

     (e) The cost of any and all Alterations shall be promptly paid by Tenant so

that the   Demised   Premises   at all times shall be free of any and all liens for

labor   and/or   materials   supplied   for   any   Alterations   subject   to the   next

succeeding   sentence.   In the event any such lien shall be filed,   Tenant shall,

within   five (5) days   after   receipt of notice of such   lien,   deliver   written

notice to Landlord   thereof,   and Tenant   shall,   within   thirty (30) days after

receipt   of notice of such   lien,   discharge   the same by bond or payment of the

amount due the lien   claimant.   However,   Tenant may in good faith   contest such

lien provided that within such thirty (30) day period Tenant   provides   Landlord

with a surety bond reasonably   acceptable to Landlord,   protecting   against said

lien.

 

                                   ARTICLE VII

 

                             REPAIRS AND MAINTENANCE

 

     Tenant,   at its sole cost and expense,   shall   maintain each of the Demised

Premises and each part thereof, structural and non-structural, in good order and

condition,   ordinary wear and tear and damage by casualty excepted, and, subject

to the terms and conditions of Article VI, if and as applicable,   shall make any

necessary   Repairs   thereto,   interior   and   exterior,    whether   extraordinary,

foreseen or unforeseen but subject to the casualty and   condemnation   provisions

of this Lease.   When used in this Article VII, the term "Repairs"   shall include

all   such   replacements,    renewals,   alterations,    additions   and   betterments

necessary for Tenant to properly maintain the Demised Premises in good order and

condition and in compliance   with all applicable   laws. The adequacy of, any and

all   Repairs to the Demised   Premises   required   or   conducted   pursuant to this

Article VII shall be measured by and meet,   at a minimum,   all of the   following

standards:   (1) at least equal in quality of   material   and   workmanship   to the

condition of the Demised   Premises   prior to the need for such   Repairs;   (2) at

least equal in quality of material and workmanship to the condition of buildings

and   related   facilities   of   similar   construction   and   class   in the   general

geographic area of the Demised Premises are generally maintained;   (3) avoidance

of any and all structural   damage or injury to the Building or persons   therein;

(4) any   and all   maintenance,   service,   operation   and   repair   standards   and

requirements    set   forth   by   Guarantor   for   its   (or   its    subsidiaries'   or

affiliates')   restaurants;   (5) any and all   repairs,   replacements   or upgrades

necessary   to   ensure    compliance    with   the   rules   and   regulations   of   all

governmental   agencies having jurisdiction over the Demised Premises,   including

all   Environmental   Laws (as defined   below);   and (6) no mold which inhibits or

impairs the   intended use of any Demised   Premises   shall be permitted to remain

unabated at any Demised   Premises.   Landlord   shall have no duty   whatsoever   to

maintain, replace, upgrade, or repair any portion of the Demised Premises except

in the event the damage   necessitating such repair is solely and directly caused

by the gross   negligence or willful   misconduct of Landlord.   If Tenant fails or

neglects   to commence   and   diligently   proceed   with all   necessary   Repairs or

fulfill its other   obligations   as set forth above within twenty (20) days after

receipt of notice of the need therefore or otherwise   obtaining knowledge of the

need therefore (except in emergency   situations involving risk of further damage

to the   Demised   Premises or injury to persons in which case no such time period

shall be   applicable)   and/or fails to   diligently   make such   repairs   within a

reasonable   time   period,   then   Landlord   or its agents   may enter the   Demised

Premises for the purpose of making such Repairs or fulfilling those obligations.

All costs and expenses   incurred as a consequence of Landlord's   action shall be

paid by Tenant to Landlord as   Additional   Rent within   fifteen   (15) days after

Landlord   delivers   to   Tenant   copies of   invoices   for such   Repairs   or other

obligations.   These invoices shall be prima facie evidence of the payment of the

charges to be paid by Landlord. Except in the case of emergency,   Landlord shall

give Tenant ten (10) days' written notice before taking any such action.

 

                                       5

<PAGE>

 

                                  ARTICLE VIII

 

                               COMPLIANCE WITH LAW

 

     Tenant   shall,   throughout   the Lease Term,   at its sole cost and   expense,

comply with all laws and   regulations   of federal,   state,   municipal   and local

governments,   departments, commissions and boards pursuant to law, or directives

or   orders   issued    pursuant    thereto,    including    without    limitation   all

Environmental   Laws and the Americans   With   Disabilities   Act, with respect to,

regarding, or pertaining to the Demised Premises. Notwithstanding the foregoing,

Tenant may,   subject to the terms and   conditions   of this   Section,   contest or

appeal such   requirements or orders. To the extent any such contest or appeal by

Tenant suspends any and all obligations on the part of Tenant,   Landlord, or the

Demised   Premises to comply with such   requirements or orders,   and suspends any

and all   applicability of such   requirements or orders to the Demised   Premises,

Tenant shall not be required to comply with any such laws, regulations,   orders,

requirements   or   rules.   In no   event   shall   any   such   appeals,   contests   or

proceedings   pursued by Tenant   subject   Landlord to criminal   liability   or any

civil liability. Upon final resolution of any such appeal, proceeding or contest

pursued by Tenant,   Tenant shall comply with the   judgment,   finding or order of

the governmental authority so resolving such appeal,   proceeding or contest, and

shall be liable in full for any and all   fines,   penalties,   charges or costs of

any type whatsoever which accrue during the pendency of any contest or appeal.

 

                                    ARTICLE IX

 

                                    UTILITIES

 

     Without   limiting   any of Tenant's   obligations   set forth in Article   III,

Tenant   shall be solely   responsible   for, and shall pay the cost of all utility

services provided to the Demised Premises throughout the Lease Term.

 

                                    ARTICLE X

 

                            DISCLAIMER AND INDEMNITY

 

     Section    10.01   As   used   in   this   Lease,    "Landlord    Parties"    means,

collectively,   Landlord,   Landlord's lenders, and Landlord's members,   partners,

trustees, ancillary trustees, officers, directors, shareholders,   beneficiaries,

agents, employees and independent contractors,   succesors,   assigns and lenders,

to any of the   foregoing.   To the   extent   not   prohibited   by law,   none of the

Landlord   Parties   shall be (and   Tenant   hereby   agrees that they shall not be)

liable,   under   any   circumstances   (except   only   Landlord   (and not any   other

Landlord   Parties)   in the   event   of,   and   then   only to the   extent   directly

attributable   to,   Landlord's   gross   negligence or willful   misconduct) for any

loss, injury,   death or damage to person or property   (including but not limited

to the business or any loss of income or profit   therefrom) of Tenant,   Tenant's

members,   officers,   directors,   shareholders,   agents, employees,   contractors,

customers,   invitees   or any   other   person in or about   the   Demised   Premises,

whether   the same are caused by (1) fire,   explosion,   falling   plaster,   steam,

dampness,   electricity,   gas, water,   or rain or (2) breakage,   leakage or other

defects of sprinklers, wires, appliances, plumbing fixtures, water or gas pipes,

roof, air conditioning,   lighting fixtures,   street improvements,   or subsurface

improvements or (3) theft, acts of God, acts of the public enemy,   riot, strike,

insurrection,   war, court order,   requisition or order of   governmental   body or

authority,   or (4) any act or   omission   of any other   occupant   of the   Demised

Premises or any other party,   or (5) operations in   construction of any private,

public or quasi-public work, or (6) any other cause,   including damage or injury

which   arises from the   condition   of the Demised   Premises,   from   occupants of

adjacent   property,   from the public,   or from any other sources or places,   and

regardless   of   whether   the   cause of such   damage   or   injury   or the means of

repairing   the same are   inaccessible   to   Tenant,   or which may   arise   through

repair, alteration or maintenance of any part of the Demised Premises or failure

to make any such   repair,   from any   condition   or   defect   in,   on or about the

Demised Premises including any "Environmental Conditions" (as defined in Article

XXXVII) or the presence of any mold or any   Hazardous   Materials   (as defined in

Article XXXVII), or from any other condition or cause whatsoever.

 

     Section   10.02   Tenant   hereby   fully   and   forever   releases,   discharges,

acquits,   and agrees to indemnify,   protect,   defend (with   counsel   selected by

Tenant and approved by Landlord,   such approval not to be unreasonably withheld)

and hold the Demised Premises,   and each of the Landlord Parties wholly free and

harmless of, from and against any and all claims,   demands,   actions,   causes of

action, settlements,   obligations,   duties, indebtedness,   debts, controversies,

losses,   remedies,   chooses in action,   liabilities,   costs,   penalties,   fines,

damages,   injury,   judgments,   forfeiture,   losses (including without limitation

diminution in the value of the Demised Premises) or expenses   (including without

limitation   attorneys' fees,   consultant fees,   testing and investigation   fees,

expert fees and court costs),   whether known or unknown,   whether   liquidated or

unliquidated:   (a) arising out of or in any way related to or resulting directly

or indirectly from: (i) the use,   occupancy or activities of Tenant, its agents,

employees,   contractors or invitees in or about the Demised   Premises,   (ii) any

failure   on the part of Tenant   to comply   with any   applicable   law,   including

without limitation all Environmental Laws; (iii) any default or breach by Tenant

in the   performance of any   obligation of Tenant under this Lease;   and (iv) any

other loss, injury or damage described in Section 10.01 above caused (whether by

action or omission) by Tenant, its agents,   employees,   contractors or invitees;

and   (v) in   connection   with   mold at any   Demised   Premises;   and (b)   whether

heretofore now existing or hereafter   arising out of or in any way related to or

resulting   directly or indirectly   from the presence or "Release" (as defined in

Article   XXXVII) at, on, under to or from the Demised   Premises of any Hazardous

Material;    provided,   however,   that   the   foregoing   indemnity   shall   not   be

applicable to the extent any such claims are directly   attributable to the gross

negligence or willful   misconduct of such Landlord Party. All of the personal or

any other property of Tenant kept or stored at, on or about the Demised Premises

shall be kept or stored at the risk of Tenant.

 

                                       6

<PAGE>

 

     Section   10.03   Tenant   hereby   fully   and   forever   releases,   discharges,

acquits,   and agrees to indemnify,   protect,   defend (with   counsel   selected by

Tenant and approved by Landlord,   such approval not to be unreasonably withheld)

and hold the Demised Premises, and all Landlord Parties wholly free and harmless

of, from and against any and all   claims,   demands,   actions,   causes of action,

settlements,   obligations, duties, indebtedness,   debts, controversies,   losses,

remedies,   chooses in action,   liabilities,   costs,   penalties,   fines, damages,

injury, judgments,   forfeiture,   losses (including without limitation diminution

in the value of the Demised Premises) or expenses   (including without limitation

attorneys' fees,   consultant fees,   testing and investigation   fees, expert fees

and   court   costs),   whether   known   or   unknown,    hereafter   arising,   whether

liquidated or unliquidated, arising out of or in any way related to or resulting

directly   or   indirectly   from work or labor   performed,   materials   or supplies

furnished   to or at the   request   of Tenant or in   connection   with   obligations

incurred by or   performance of any work done for the account of Tenant in, on or

about the Demised Premises.

 

     Section   10.04   Landlord   and Tenant each (a)   represent to the other party

that such   representing   party has dealt with no broker or brokers in connection

with the negotiation, execution and delivery of this Lease and (b) hereby agrees

to indemnify,   defend,   protect   (with counsel   selected by the other party) and

hold such other party   wholly free and harmless of, from and against any and all

claims or demands for any and all brokerage commissions and/or finder's fees due

or alleged to be due as a result of any agreement or purported agreement made by

such indemnifying party.

 

     Section 10.05 The provisions of this Article X shall survive the expiration

or sooner termination of this Lease.   Tenant hereby waives the provisions of any

applicable laws restricting the release of claims which the releasing parties do

not know or suspect to exist at the time of release, which, if known, would have

materially   affected Tenant's decision to agree to this release. In this regard,

Tenant hereby agrees,   represents, and warrants to Landlord that Tenant realizes

and   acknowledges   that factual matters now unknown to Tenant may hereafter give

rise to causes of action, claims, demands, debts, controversies, damages, costs,

losses and expenses which are presently unknown,   unanticipated and unsuspected,

and Tenant further   agrees,   represents   and warrants that the release   provided

hereunder has been   negotiated and agreed upon in light of that   realization and

that Tenant   nevertheless   hereby   intends to release,   discharge and acquit the

parties set forth herein above from any such unknown   causes of action,   claims,

demands, debts, controversies,   damages, costs, losses and expenses which are in

any manner set forth in or related to this Lease,   the Demised   Premises and all

dealings in connection therewith.

 

                                   ARTICLE XI

 

                                    INSURANCE

 

     Section 11.01 Tenant will maintain,   with   financially   sound and reputable

insurers, public liability, fire and extended coverage and property damage, rent

loss or business   interruption   and other types of insurance with respect to its

business and the Property   (including   all   Buildings   now existing or hereafter

erected   thereon)   against   all losses,   hazards,   casualties,   liabilities   and

contingencies   as   customarily   carried or maintained by persons of   established

reputation   engaged in similar   businesses   and as Landlord shall require and in

such amounts and for such periods as Landlord shall require.   Without limitation

of the foregoing,   Tenant shall   maintain or cause to be maintained   policies of

insurance   with   respect   to the Real   Property   in the   following   amounts   and

covering the following risks:

 

     (a) Comprehensive   "all risk" insurance covering loss or damage to the Real

Property   caused by fire,   lightning,   hail,   windstorm,   explosion,   vandalism,

malicious mischief, and such other losses, hazards, casualties,   liabilities and

contingencies   as are   normally   and   usually   covered   by "All Risk" or special

property   policies in effect   where such Real   Property   is located   endorsed to

include   all of the   extended   coverage   perils   and other   broad   form   perils,

including the standard "all risks" or Special clauses, with such endorsements as

Landlord may from time to time reasonably require including, without limitation,

building   ordinance or law coverage   sufficient to provide coverage for costs to

comply with building and zoning codes and ordinances   including demolition costs

and increased cost of construction.

 

     (b) The   policy(ies)   referred   to in   Subsection   (a) above shall be in an

amount equal to one hundred percent (100%) of the full   replacement   cost of the

Building and the furniture, fixtures and equipment at the Real Property (without

any   deduction   for    depreciation),    and   shall   contain   a   replacement   cost

endorsement   and   an   agreed   amount   or   waiver   of    co-insurance    provisions

endorsement.

 

     (c) Broad form boiler and   machinery   or   breakdown   insurance in an amount

equal to the full replacement cost of the Building at the Real Property (without

any   deduction   for   depreciation)   in which   the   boiler or   similar   vessel is

located,   and   including   coverage   against   loss or damage   from (1) leakage of

sprinkler   systems and (2) damage,   breakdown   or   explosion   of steam   boilers,

electrical machinery and equipment,   air conditioning,   refrigeration,   pressure

vessels or similar apparatus and mechanical   objects now or hereafter   installed

at the Real Property.

 

                                       7

<PAGE>

 

     (d) If the Real Property is located in area prone to geological   phenomena,

including,   but not limited   to,   sinkholes,   mine   subsidence   or   earthquakes,

insurance    covering   such   risks   in   amounts,    and   in   form   and   substance,

satisfactory to Landlord in its sole discretion.

 

     (e) Business   interruption or rent loss insurance in an amount equal to the

gross income or rentals from the Real Property for an indemnity period of twelve

(12) months, such amount being adjusted annually.

 

     (f)   During   any   period of   construction,   reconstruction,   renovation   or

alteration at the Real Property,   a complete   value,   "All Risks"   Builders Risk

form or "Course of Construction"   insurance policy in non-reporting   form and in

an amount reasonably satisfactory to Landlord.

 

     (g) Commercial   General   Liability   insurance   covering claims for personal

injury,   bodily injury, death or property damage occurring upon, in or about the

Real Property on an occurence form and in an amount not less than $1,000,000 per

occurrence   and   $2,000,000   in the   aggregate   and shall   provide   coverage for

premises and operations, liquor liability, products and completed operations and

contractual   liability,   with an   umbrella   liability   policy   in the   amount of

$25,000,000.

 

     (h) If required by applicable state laws, worker's compensation, employer's

liability insurance in an amount of $1,000,000 per accident, per employee and in

the aggregate, and in accordance with such laws, subject to the statutory limits

of the states in which the Property is located.

 

     (i) Such other insurance and endorsements, if any, with respect to the Real

Property and the operation thereof as Landlord may reasonably   require from time

to time,   provided same are customarily   required by   institutional   lenders for

similar properties in the general vicinity of the Real Property.

 

     Section 11.02 Each carrier   providing any   insurance,   or portion   thereof,

required by this Section shall be licensed to do business in the jurisdiction in

which the Real   Property   is   located,   and shall have a claims   paying   ability

rating by S&P of not less than "A" and an A.M. Best Company,   Inc. rating of not

less   than A and   financial   size   category   of not less   than   XIII.   Except as

otherwise   expressly   set forth in this Lease,   Tenant shall cause all insurance

(except general public liability and workers' compensation insurance) to contain

a   mortgagee   clause   and loss   payee   clause in favor of   Landlord's   lender in

accordance   with this Section to be payable to Landlord's   lender as a mortgagee

and not as a co-insured, as its interest may appear.

 

 

     Section 11.03 All insurance policies and renewals thereof (i) shall be in a

form   reasonably   acceptable   to Landlord,   (ii) shall provide for a term of not

less   than one   year,   (iii) if the same are   insurance   policies   covering   any

property (a) shall include a standard non-contributory   mortgagee endorsement or

its   equivalent in favor of and in form   acceptable to   Landlord's   lender,   (b)

shall contain an agreed value clause updated annually (if the amount of coverage

under such policy is based upon the   replacement   cost of the   Property) and (c)

shall   designate   Landlord's   lender as "mortgagee and loss payee." In addition,

all property   insurance   policies (except for flood and earthquake   limits) must

automatically   reinstate after each loss, and the commercial   general   liability

and umbrella policies shall contain an additional   insured   endorsement in favor

of Landlord's lender.

 

     Section 11.04 Any insurance provided for in this Article may be effected by

a blanket   policy or policies of   insurance,   or under   so-called   "all-risk" or

"multi-peril"   insurance   policies,   provided   that   the   amount   of   the   total

insurance   available with respect to the Demised Premises shall provide coverage

and   indemnity at least   equivalent to separate   policies in the amounts   herein

required,   and   provided   further   that in other   respects,   any such   policy or

policies   shall   comply   with the   provisions   of this   Article.   Any   increased

coverage   provided by   individual   or blanket   policies   shall be   satisfactory,

provided the aggregate liability limits covering the Demised Premises under such

policies shall otherwise comply with the provisions of this Article.

 

     Section 11.05 Every   insurance   policy carried by either party with respect

to the   Demised   Premises   shall (if it can be so   written)   include   provisions

waiving the insurer's   subrogation   rights against the other party to the extent

such rights can be waived by the insured   prior to the   occurrence   of damage or

loss.   Subject to the above,   each party   hereby   waives any rights of   recovery

against the other party for any direct damage or   consequential   loss covered by

said policies against which such party is protected by insurance   whether or not

such damage or loss shall have been caused by any acts or omissions of the other

party, but such waiver shall operate only to the extent such waiving party is so

protected by such insurance coverage.

 

                                       8

<PAGE>

 

     Section   11.06   Each   insurance   policy   required   to be   carried by Tenant

hereunder   shall include a provision   requiring the insurance   carrier   insuring

such   policy to provide   Landlord   with not less than   thirty   (30) days'   prior

written notice of any threatened or actual lapse,   cancellation,   reduction,   or

other material   change in such policy's   coverage or its terms. If any insurance

policy   required to be and in fact   carried by Tenant and   covering   the Demised

Premises or any part thereof is cancelled or is   threatened by the insurer to be

cancelled,   or if the coverage   thereunder   is reduced in any way by the insurer

for any   reason,   and if Tenant   fails to remedy the   condition   giving   rise to

cancellation,   threatened cancellation, or reduction of coverage within 48 hours

after notice thereof by Landlord,   Landlord may, in addition to all other rights

and remedies   available to Landlord,   enter the Demised   Premises and remedy the

condition   giving   rise   to   such   cancellation,    threatened    cancellation   or

reduction,   and Tenant shall   forthwith pay the cost thereof to Landlord   (which

cost may be collected by Landlord as Additional   Rent) and Landlord shall not be

liable for any damage or injury   caused to any   property   of Tenant or of others

located on the   Demised   Premises   as a result of any such   entry.   In the event

Tenant   fails to procure or   maintain   any policy of   insurance   required   under

Article XI,   Landlord   may, at its option,   purchase   such   insurance and charge

Tenant   all costs and   expenses   incurred   in   procuring   and   maintaining   such

insurance as Additional Rent.

 

                                   ARTICLE XII

 

                              DAMAGE OR DESTRUCTION

 

     Section 12.01 Subject to the   provisions of Section 12.04 and Section 12.05

below,   if at any time during the Lease Term,   the Demised   Premises or any part

thereof   shall be damaged or destroyed by fire or other   casualty of any kind or

nature,   Tenant shall commence within   Forty-Five (45) days after the first date

of such   damage or   destruction   and   thereafter   diligently   proceed to repair,

replace or rebuild such Demised   Premises as nearly as possible to its condition

and   character   immediately   prior   to such   damage   with   such   variations   and

Alterations   requested by Tenant as may be   permitted   under (and subject to the

provisions of) Article VI (the "Restoration Work").

 

     Section   12.02 All   property   and casualty   insurance   proceeds   payable to

Landlord or Tenant (except (i) insurance   proceeds   payable to Tenant on account

of Tenant's   trade   fixtures or inventory   and business   interruption   insurance

carried by Tenant and (ii) insurance proceeds payable from comprehensive general

public liability,   or any other liability   insurance) at any time as a result of

casualty to the Demised   Premises   shall be paid   jointly to Landlord and Tenant

for purposes of payment for the cost of the Restoration   Work,   except as may be

otherwise   expressly set forth   herein,   and advanced from time to time for such

purposes as the work   progresses upon certified   request of Tenant's   architect.

Landlord   and Tenant   shall   cooperate   in order to obtain the largest   possible

insurance   award lawfully   obtainable and shall execute any and all consents and

other   instruments and take all other actions necessary or desirable in order to

effectuate same and to cause such proceeds to be paid as hereinbefore   provided.

The   proceeds of any such   insurance   in the case of loss   shall,   to the extent

necessary,   be used first for the   Restoration   Work with the   balance,   if any,

payable to   Tenant.   If   insurance   proceeds   as a result of a   casualty   to the

Demised   Premises are insufficient to complete the Restoration Work necessary by

reason of such   casualty,   then Tenant shall promptly pay to Landlord the amount

which, in Landlord's sole discretion will be required to complete such work, and

Landlord will deposit such amount in an escrow account (or as otherwise required

by Landlord's   lender) to be used for required   Restoration   Work.   The escrowed

funds   deposited   by   Tenant   shall   first   be used in   their   entirety   for the

Restoration   Work,   and only after all such funds have been fully expended shall

the   insurance   proceeds   collected   by   reason   of such   casualty   be used   and

expended.

 

     Section 12.03 Except as provided for in Section 12.04, this Lease shall not

be affected in any manner by reason of the total or partial   destruction   to any

Demised   Premises or any part   thereof,   or any reason   whatsoever,   and Tenant,

notwithstanding any law or statute, present or future, waives all rights to quit

or surrender any Demised Premises or any part thereof. Fixed Rent and Additional

Rent required to be paid by Tenant   hereunder shall not abate as a result of any

casualty.

 

     Section 12.04

 

     (a)   Notwithstanding   Section 12.01 above,   if the Building is destroyed or

damaged in excess of Twenty-Five   percent (25%) of the replacement   cost thereof

(the Demised Premises at which the Building is located is hereafter   referred to

as the "Casualty   Property"),   exclusive of foundation and footings,   by fire or

other   insured   casualty   at any time   during the


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