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LEASE AGREEMENT

Lease Agreement

LEASE AGREEMENT | Document Parties: STONEY RIVER LLC You are currently viewing:
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STONEY RIVER LLC

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Title: LEASE AGREEMENT
Governing Law: Florida     Date: 2/2/2004
Law Firm: BASS BERRY SIMS PLC    

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                                                                    EXHIBIT 10.1

 

O'Charley's ___/__________, ____________ County, __________

 

                                 LEASE AGREEMENT

 

         THIS LEASE AGREEMENT ("Lease") is made and entered into as of ________

____, 2003 (the "Effective Date"), by and between:

 

         (i)       ______________, LP, a Delaware limited partnership, with

its principal office and place of business at CNL Center at City Commons, 450

South Orange Avenue, Orlando, Florida 32801-3336 ("Landlord"), and

 

         (ii)      ________________, a _____________________, with its principal

place of business at 3038 Sidco Drive, Nashville, Tennessee 37204 ("Original

Tenant").

 

                              W I T N E S S E T H:

 

         Landlord leases to Tenant (as hereinafter defined), for the use and

purposes whatsoever permitted in this Lease, and subject to the terms and

conditions of the Rent Addendum attached hereto, and Tenant rents from Landlord,

the following described premises, (hereinafter "Premises"): the real property

located at ______________________, __________, _________ County, ___________ and

being more particularly described in Exhibit "A" attached hereto and made a part

hereof (the "Land"), together with all (i) rights, privileges, easements,

servitudes, rights-of-way and appurtenances belonging or appurtenant to the Land

(the "Appurtenant Interests"), and (ii) all buildings, fixtures and other

improvements now or hereafter located on the Land and all right, title and

interest of Landlord in and to any improvements used in connection with or

necessary for the exercise of the Appurtenant Interests.

 

         The following additional stipulations are hereby declared to be

covenants of this Lease and shall, unless otherwise expressly stated, be

applicable at all times throughout the term of this Lease and any extension or

renewal thereof:

 

1.        DEFINITIONS

 

         In addition to the defined terms appearing elsewhere in this Lease, the

following terms shall be defined as follows for purposes of this Lease:

 

         "Annual Rent Commencement Date" shall mean the Effective Date.

 

         "Effective Date" shall mean the date set forth at the beginning of this

Lease.

 

         "Landlord" shall mean CNL FUNDING 2001-A, LP, a Delaware limited

partnership, its successors and assigns.

 

         "Lease" shall mean this Lease Agreement and all amendments hereto, if

any, entered into from time to time hereafter, together with the Rent Addendum

and Exhibits attached hereto.

 

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         "Lease Year" shall mean a fiscal period beginning on the Annual Rent

Commencement Date (and each annual anniversary thereof) and expiring on the last

day preceding the next annual anniversary of the Annual Rent Commencement Date,

provided, however, that in the event the Annual Rent Commencement Date is not

the first (1st) day of a calendar month, then the first Lease Year shall

commence on the first (1st) day of the calendar month following the Annual Rent

Commencement Date and each subsequent Lease Year shall commence on the annual

anniversary of the commencement date of the first (1st) Lease Year.

 

         "Material Taking" shall mean a Taking of the whole of the Land or a

Taking of any portion of the Premises that, in Tenant's reasonable judgment

exercised in good faith, will: (i) result in the loss of any material portion of

the building located on the Land; (ii) materially impair access to the Land; or

(iii) otherwise result in the permanent closure or removal of a portion of the

improvements (including the loss of parking spaces) located on the Premises

which can be reasonably demonstrated to have rendered uneconomical the continued

use of the Land (or the remainder thereof) for Tenant's business operations.

 

         "Rent" shall mean the rent payable under this Lease as set forth in the

Rent Addendum attached hereto and incorporated herein, and shall include Annual

Rent (as defined in the Rent Addendum), together with all other items described

in this Lease as "additional rent".

 

         "Taking" shall mean a taking of all or any part of the Premises for any

public or quasi-public use under any governmental law, ordinance, regulation or

right of eminent domain, or sale to the condemning authority under threat of

condemnation or by agreement between Landlord and/or Tenant and those authorized

to exercise such right under threat of condemnation.

 

         "Tenant" shall include the Original Tenant and its successors and any

assignee thereof pursuant to an assignment under Paragraph 16 of this Lease.

 

         "Total Cost" shall mean the greater of $_____________ or the actual

gross purchase price paid by any successor or assignee of Landlord to purchase

the Premises pursuant to a bona fide purchase and sale transaction between

unrelated parties which purchase and sale transaction relates only to the

Premises.

 

2.        TERM AND RENT

 

                  (a)       Term. The term of this Lease shall begin on the

         Effective Date and shall expire on ________________, unless previously

         terminated or renewed or extended as provided herein. As used herein,

         the "Termination Date" shall mean the last day of the initial term (as

         described above) or the last renewal term exercised by Tenant as

         described in Paragraph 10 below, as applicable.

 

                  (b)       Rent. Rent shall be due and payable as provided in

         the Rent Addendum attached hereto and incorporated herein.

 

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3.        ALTERATIONS AND IMPROVEMENTS, INVESTMENT TAX CREDIT, MECHANIC'S LIENS,

         LANDLORD'S DISCLAIMER

 

                  (a)       Alterations and Improvements.

 

                  (i)       Tenant's Property. Tenant shall be permitted to

         install, use on and about, and remove from the Premises at any time and

         from time to time all trade fixtures and other personal property

         (exclusive of lighting, electrical, and heating and air conditioning

         improvements) that are not a component of the building located or to be

         located on the Land (hereinafter referred to as the "Tenant's

         Property"), all of which at all times shall remain the property of

         Tenant with the right of removal (subject to Paragraph 3(d) below) at

          or prior to the expiration or termination of this Lease. Tenant's

         Property shall include: (1) removable decor items and office equipment;

         (2) building lettering, signs, sign posts and sign standards; (3)

         unattached food and customer service equipment; (4) food and customer

         service equipment attached to the building by bolts and screws and/or

         by utility connections, including without limitation, walk-in

         refrigerators and freezers, remote refrigeration systems, exhaust

         systems and hoods, and water heaters; and (5) Tenant's interest in any

         equipment or other item of property that is leased to Tenant pursuant

         to an equipment lease.

 

                  (ii)      Subsequent Improvements. Tenant shall also have the

         right to make any additions, alterations, changes and improvements,

         structural and nonstructural, including but not limited to construction

         of additional buildings and additions to the then existing buildings,

         as Tenant shall desire; provided, however, (x) as to any structural

         changes (but only if the cost of such change exceeds $100,000.00 (the

         "Alteration Amount")), (i) Tenant shall submit plans of all such

         changes to Landlord at least thirty (30) days in advance of the

         proposed construction date, which plans shall be subject to Landlord's

         approval which shall not be unreasonably withheld, conditional or

         delayed, (ii) Tenant shall provide Landlord with evidence of Tenant's

         financial ability to pay for such changes, and (iii) if Original Tenant

         has assigned or subleased its interest in this Lease to another party

         such assignee or sublessee shall deliver to Landlord unconditional

         payment and performance bonds for such work naming Landlord and such

         assignee or sublessee of Tenant as dual obligees, and (y) as to all

         changes, structural or non-structural, and regardless of whether any

          such change constitutes a structural change (and regardless of whether

         the cost of such change exceeds the Alteration Amount), (i) all such

         construction shall be completed in a workmanlike manner and in material

         compliance with all laws, building codes and ordinances applicable

         thereto, at Tenant's sole expense, and (ii) such additions,

         alterations, changes and improvements (whether structural or

         non-structural) shall not reduce the fair market value of the Premises.

         Notwithstanding the foregoing, the Alteration Amount shall increase to

         $150,000.00 at the expiration of the tenth (10th) Lease Year. In the

         event Landlord has reasonable cause to believe that such changes will

         reduce the fair market value of the Premises, Landlord shall designate

         an independent MAI appraiser within ten (10) days of Tenant's

         submission of plans of all changes to the Premises. Within ten (10)

         days after selection of Landlord's appraiser, Landlord shall notify

         Tenant of the determination made by Landlord's appraiser with respect

         to the anticipated fair market value of the Premises with such

         additions, alterations, changes and improvements. Tenant shall then

         have ten (10) days to dispute such determination and to

 

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         select its own independent MAI appraiser. In the event that Tenant

         fails to select its appraiser within such ten (10) day period, the

         determination of Landlord's appraiser shall constitute the anticipated

         fair market value. Within ten (10) days after selection of Tenant's

         appraiser, the two appraisers shall meet and attempt to agree as to the

         anticipated fair market value for the Premises. In the event that such

         appraisers are unable to agree as to such anticipated fair market value

         then: (i) if the difference between the two determinations is less than

         five percent (5%) of the lower determination, then the average of the

         two determinations shall be deemed to constitute the anticipated fair

         market value; or (ii) if the difference between the two determinations

         is equal to or greater than five percent (5%) of the lower

         determination, then the two appraisers shall jointly select a third

         independent MAI appraiser, which appraiser shall select which of the

         determinations of the first two appraisers shall constitute the

         anticipated fair market value. Such third appraiser shall not have the

         right to vary or modify the determinations of the appraisers selected

         by Landlord and Tenant. Any appraiser selected by Tenant or Landlord

         must have at least ten (10) years experience in appraising commercial

         real estate in the area in which the Premises is located. The

         appraisers shall not have the right to amend, modify or vary any of the

         terms of this Lease and the determination of the appraisers shall be

         final, binding and conclusive upon Landlord and Tenant. In all events,

         said fair market value shall be determined without regard or

         consideration for this Lease or rent payable hereunder. In the event

         Landlord has not granted or denied its approval of plans submitted in

         accordance with this Paragraph 3 within two (2) weeks after such plans

         have been delivered to Landlord, such plans shall be deemed approved by

         Landlord.

 

                  (iii)     Improvements Upon Termination, Subletting or

         Assignment. Subject to the requirements of this Paragraph 3, Tenant

         shall have the right, at its option and expense, to redecorate or

         otherwise remodel the Premises upon any termination hereof or upon any

         permitted subletting or assignment in such manner as will, without

         reducing the fair market value thereof, avoid the appearance of the

         O'Charley's Restaurant operated under this Lease; provided, however,

         that in addition to the other requirements of this Paragraph 3, Tenant

         shall not impair the structural condition of the improvements located

         on the Land, or reduce the size of the buildings located on the Land.

         Any dispute under this Paragraph as to whether a proposed change will

         reduce the fair market value of the Premises will be resolved by the

         same appraisal process described in subparagraph 3(a)(ii) above.

 

                  (iv)      All subsequent improvements referred to in Paragraph

         3(a)(ii) above, all improvements upon termination, subletting or

         assignment referred to in Paragraph 3(a)(iii) above, and any and all

          other additions, alterations, changes and improvements of any type by

         Tenant to the Premises (excluding Tenant's Property) shall be deemed to

         be a part of the Premises and the sole property of Landlord.

 

                  (b)       Investment Tax Credit. Landlord hereby grants Tenant

         the right and privilege of applying for and receiving all investment

         tax credits, if any, under the Internal Revenue Code of 1986, as

         amended (the "Code") that may be available with respect to the building

         and other improvements which may be constructed on the

 

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         Premises. To this end, Landlord agrees to execute all such further

         documents and supply such additional information as may be required to

         make such election effective.

 

                  (c)       Mechanic's and Other Liens. Tenant shall not do

         anything by which the Premises, or any part thereof, shall be

         encumbered by a mechanic's, materialman's, or other lien for work or

         labor done, services performed, materials, appliances, or power

         contributed, used, or furnished in or to the Premises or in connection

         with any operations or any other activity of Tenant, and, if, whenever

         and as often as any lien may be filed against the Premises, or any part

         thereof, purporting to be for or on account of any labor done,

         materials or services furnished in connection with any work in or about

         the Premises, done by, for or under the authority of Tenant, or anyone

         claiming by, through or under Tenant, Tenant shall discharge the same

         of record within thirty (30) days after service upon Tenant of written

         notice of the filing thereof; provided, however, Tenant shall have the

         right to remove the lien as an encumbrance upon the Premises by bonding

         same in accordance with applicable law and to contest any such lien;

         provided further that Tenant shall diligently prosecute any such

         contest, at all times effectively staying or preventing any official or

         judicial sale of the Premises under execution or otherwise, and, if

         unsuccessful, satisfy any final judgment against Tenant adjudging or

         enforcing such lien or, if successful, procuring record satisfaction or

         release thereof. Landlord shall, at the request of Tenant, execute or

         join in the execution of any instruments or documents necessary in

         connection with such proceedings, but Landlord shall incur no cost or

         obligation thereby.

 

                  (d)       Landlord's Disclaimer. All of Tenant's Property

         placed in or upon the Premises by Tenant shall remain the property of

         Tenant with the right to remove the same at any time during the term of

         this Lease or any extension or renewal thereof. Landlord, if requested

         by Tenant, agrees to execute a Subordination of Landlord's Lien in the

          form of Exhibit "D" attached hereto or such other documentation as may

         be reasonably required by any equipment lender or lessor of Tenant by

         which Landlord shall subordinate its lien rights to the lien rights of

         any equipment lender or lessor with respect to Tenant's Property, and

         to all rights of levy for distraint for rent against the same;

         provided, however, that any damage caused by, or resulting from the

         removal of any of Tenant's Property or other personal property

         (including the leaving of holes or other openings in the roof or

         exterior of the building on the Land) shall be promptly repaired by

         Tenant or the party entitled to remove the same. Landlord agrees that

          such equipment lender or lessor shall have a period not to exceed

         thirty (30) days after notice to such lender or lessor that a Default

         has occurred hereunder to remove such equipment (and Landlord may

         thereafter remove such equipment at such lessor's or lender's expense).

         Landlord shall be entitled to reimbursement by Tenant for its

         reasonable costs and expenses in connection with the execution of such

         documentation, and Tenant agrees to pay such reasonable costs and

         expenses as a condition precedent to Landlord's execution of such

         documents.

 

4.        DESTRUCTION OF PREMISES; INSURANCE

 

                  (a)       If the improvements located on the Land are damaged

         or destroyed by fire, flood, tornado or other element, or by any other

         casualty and such damage or destruction

 

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         does not occur within the last twenty four (24) months of the original

         or of any extended or renewed term of this Lease, or in the event

         Tenant elects not to terminate this Lease following a casualty that

         would allow Tenant to so terminate (as described below), this Lease

         shall continue in full force and effect and, unless Tenant effects an

         economic substitution as permitted in this Paragraph 4(a) and Paragraph

         36 hereof, Tenant shall, as promptly as possible, restore, repair or

         rebuild the improvements located on the Land to substantially the same

         condition as existed before the damage or destruction, as modified to

         incorporate any improvements or alterations required to be made by any

         governmental body, county or city agency, due to any changes in code or

         building regulations. Tenant shall for this purpose use all, or such

         part as may be necessary, of the insurance proceeds received from

         insurance policies required to be carried under the provisions of

         Paragraph 4(b) hereinof. If such insurance proceeds are not sufficient

         to pay such costs, Tenant shall pay such deficit. Notwithstanding the

         foregoing provisions of this Paragraph 4(a), in the event that Tenant

         has an obligation hereunder to repair or rebuild the improvements

         located on the Land as a result of a casualty and Tenant determines

         that the repair or rebuilding of such improvements is not economically

         practicable, Tenant shall have the option to elect, by written notice

         to Landlord within sixty (60) days after such casualty, to substitute

         another restaurant property for the Premises pursuant to Paragraph 36

         hereof, and in such event, (i) such substitution shall be completed

          within six (6) months after the delivery of such notice; (ii) all

         insurance proceeds payable with respect to the casualty affecting the

         Premises shall be paid to Tenant upon the completion of such

         substitution; and (iii) Tenant shall continue to pay Rent and its other

         monetary obligations hereunder and to provide general liability

         insurance pursuant to Paragraph 4(c) hereof until the substitute

         restaurant property is subject to a lease with Landlord as described in

         Paragraph 36 hereof. Should the improvements located on the Land be

         damaged or destroyed by any of the foregoing described casualties

         within the last twenty-four (24) months of the original term or of any

         extended or renewed term of this Lease, then to the extent that the

         Premises are untenantable or unsuitable, in Tenant's reasonable

         opinion, for continued use in the normal conduct of Tenant's business,

         including, without limitation, if restoration or reconstruction either

         (A) is not permitted by then existing laws or governmental regulations

         applicable to the restoration or reconstruction of the improvements on

         the Land or (B) is not economically practicable, in the reasonable

         judgment of Tenant, as a result of the cost of compliance with then

         existing laws or governmental regulations applicable to the restoration

         or reconstruction of the improvements on the Land (a "Total Loss"),

         Tenant shall have the right, exercisable by written notice to Landlord

         given within forty-five (45) days after the date of such damage or

         destruction, to terminate this Lease effective upon the date of such

         damage or destruction. If Tenant terminates this Lease as thus provided

         Landlord shall be entitled to all of the insurance proceeds on the

         Premises, but not to the proceeds of any business interruption

         insurance carried by Tenant or any insurance carried by Tenant on

         Tenant's Property; provided, however, Tenant shall not have the right

         to terminate this Lease unless (i) the damage or destruction of the

         improvements located on the Land was caused by a peril which was

         insured against as required by the provisions of Paragraph 4(b) of this

         Lease; and (ii) at the time of such damage and destruction the said

         insurance policies required to be carried by Tenant were in the amounts

         required by Paragraph 4(b) hereof (without deduction or co-insurance

         unless Tenant agrees to pay to Landlord (upon

 

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         termination hereof) the amount of any such deductible or co-insurance)

          and in full force and effect; and (iii) the insurer has confirmed

         coverage and its obligation to pay. If Tenant defaults in its

         obligation to carry insurance in the amounts required under Paragraph

         4(b), then, prior to Tenant's termination of this Lease and in addition

         to the requirements set forth in the preceding sentence, Tenant shall

         be obligated to pay toward such reconstruction or to Landlord, as the

         case may be, the difference between the amount of insurance actually

         carried and the amount required to be carried under Paragraph 4(b).

 

                  (b)       Tenant, at its expense and as additional rent

         hereunder, shall throughout the term of this Lease and any extension or

          renewal thereof, keep the improvements located on the Land insured with

         (i) "Special Form Causes of Loss" coverage (as such term is used in the

         insurance industry), at least as broad as the most current ISO Special

         Cause of Loss Form, including coverage for glass breakage, vandalism

         and malicious mischief, and builder's risk (if the improvements located

         on the Land are to be constructed or substantially refurbished or

         rebuilt pursuant to the terms of this Lease) for one hundred percent

         (100%) of the insurable replacement value with no co-insurance penalty,

         with any deductible in excess of One Hundred Thousand Dollars and

         No/100 Dollars ($100,000.00) to be approved by Landlord which approval

         of deductible shall not be unreasonably withheld, and (ii) "Ordinance

         and Law Coverage" with limits of not less than the building value for

         Coverage A (loss to the undamaged portion of the building), a limit of

         not less than fifteen percent (15%) of the building value for Coverage

         B (Demolition Cost Coverage), and a limit of not less than fifteen

         percent (15%) of the building value for Coverage C (Increased Cost of

         Construction Coverage).

 

                  (c)       Tenant, at its expense, shall throughout the term of

         this Lease and any extension or renewal thereof, maintain commercial

         general liability insurance including product liability and liquor

          liability (if alcohol is served by Tenant) covering the Premises at

         least as broad as the most commonly available ISO Commercial General

         Liability policy form (occurrence basis) covering bodily injury,

         property damage and personal and advertising injury, for the joint

         benefit of and insuring Tenant and Landlord, with limits of not less

         than One Million Dollars ($1,000,000.00) per occurrence with any

         deductible in excess of Two Hundred Fifty Thousand and No/100 Dollars

         ($250,000.00) to be approved by Landlord which approval shall not be

         unreasonably withheld, with a general aggregate of not less than Two

         Million Dollars ($2,000,000.00) and a "following form" umbrella

         liability policy or excess liability policy to include product

         liability and liquor liability (if alcohol is served by Tenant), in an

         amount of not less than Ten Million Dollars ($10,000,000.00) per

         occurrence, with any deductible in excess of Five Hundred Thousand

         Dollars ($500,000.00) to be approved by Landlord which approval shall

         not be unreasonably withheld.

 

                  (d)       [INTENTIONALLY DELETED]

 

                  (e)       In the event the Premises are located in an area

         identified by the National Flood Insurance Program as an area having

         "special flood hazards" (zones beginning with "A" or "V," Tenant shall

         maintain throughout the term of this Lease and any extension thereof,

         flood insurance for the full replacement value of the improvements

 

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         located on the Land, with any deductible in excess of Two Hundred Fifty

         Thousand and No/100 Dollars ($250,000.00) to be approved by Landlord

         which approval of deductible shall not be unreasonably withheld.

 

                  (f)       In the event the Land is located in an area

         designated as a "Zone 1 or Zone 2 Earthquake Zone" by the U.S.

          Geological Survey and earthquake insurance is available, Tenant shall,

         throughout the term of this Lease, and any extension or renewal

         thereof, maintain earthquake insurance for the full replacement value

         of the Premises with any deductible in excess of Two Hundred Fifty

         Thousand and No/100 Dollars ($250,000.00) to be approved by Landlord

         which approval shall not be unreasonably withheld.

 

                  (g)       Landlord and Tenant shall periodically (but no more

         frequently than once in any five (5) year period) and in good faith

         revise the deductible amounts from time to time due to inflation and

         changes in the insurance underwriting market.

 

                  (h)       All insurance companies providing the coverage

         required under this Paragraph 4 shall be selected by Tenant, shall be

         rated A minus (A-) or better by Best's Insurance Rating Service (or

         equivalent rating service if not available), and shall be licensed to

         write insurance policies in the state in which the Land is located.

         Tenant shall provide Landlord with copies of all policies or

         certificates of such coverage for the insurance coverages referenced in

          this Paragraph 4, and all commercial general liability and umbrella

         liability or excess liability policies shall name Landlord (and if

         Landlord is either a general or limited partnership, its general

         partners if so requested by Landlord) and any mortgagee whose name and

         address has been provided by written notice from Landlord to Tenant

         sent in accordance with this Lease as additional insured(s) thereunder.

         Any such coverage for additional insureds shall be primary and

         non-contributory with any insurance carried by Landlord or any other

         additional insured thereunder. All property insurance policies shall

         name Landlord as an additional named insured or as a loss payee as

          Landlord's interests may appear. All such policies of insurance shall

         provide that the amount thereof shall not be reduced and that none of

         the provisions, agreements or covenants contained therein shall be

         modified or canceled by the insuring company or companies without

         thirty (30) days prior written notice being given to Landlord (except

         for non-payment for which ten (10) days prior written notice will be

         provided); and that all insurance proceeds (if such payment exceeds

         $100,000.00) shall be paid by check payable to Landlord to be held in

         trust and applied pursuant to the terms of this Lease. Tenant may

         receive insurance proceeds directly if the insurance payment is

          $100,000.00 or less. Such policy or policies of insurance may also

         cover loss or damage to Tenant's Property, and the insurance proceeds

         applicable to Tenant's Property, together with the proceeds of any

         business interruption insurance maintained by Tenant, shall not be paid

         to Landlord or any mortgagee but shall accrue and be payable solely to

         Tenant. In the event of a casualty, Tenant shall be responsible for any

         deficiency between the replacement cost of the Premises and the amount

         actually paid by the insurance company.

 

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5.        MAINTENANCE AND REPAIR

 

                  (a)       Tenant shall, during the term of this Lease and any

          extension or renewals thereof, (i) maintain the Land and all buildings

         and improvements thereon (interior and exterior, structural and

         otherwise) in good order and repair, subject to normal wear and tear

         (and subject to provisions hereof relating to condemnation and

         casualty) and perform all its obligations to maintain Appurtenant

         Interests as are imposed on Landlord or Tenant by the instruments

         granting such Appurtenant Interests; (ii) not commit waste or permit

         impairment or deterioration of the Premises (normal wear and tear

         excepted and subject to the provisions hereof relating to casualty and

         condemnation); (iii) keep the Tenant's Property, including trade

         fixtures, equipment, machinery and appliances thereon so that such

         items function as originally intended and shall replace such items of

         Tenant's Property when necessary in accordance with Tenant's normal

         operations to keep such items so that such items function as originally

         intended; (iv) comply in all material respects with all laws,

         ordinances, regulations and requirements of any governmental body

         applicable to the Premises (provided, however, Tenant shall have the

         right to contest the same); (v) provide prompt notification to Landlord

         of any material adverse changes to the Premises, such as material

         changes in any environmental condition, including the presence of

         biocontaminants, such as, but without limitation mold, and shall

         promptly undertake reasonable remediation (and preventative) actions in

         connection with any such environmental condition on the Land and the

         improvements thereon (to the extent required by applicable

         environmental law); and (vi) subject to the provisions of Paragraph

         4(a) with respect to damage within the last twenty-four (24) months of

         the Lease resulting from a casualty, and Paragraph 6 herein, return the

         Premises and all buildings and improvements thereon at the expiration

         of the term of this Lease or any extension or renewal thereof in as

         reasonably as good condition as when received, subject to normal wear

         and tear (and subject to provisions hereof relating to condemnation and

         casualty) and surrender the Appurtenant Interests and shall have

         performed all of its obligations, if any, with respect to maintaining

         such Appurtenant Interests.

 

                  (b)       Tenant agrees that Landlord shall have no obligation

         under this Lease to make any repairs or replacements (including the

         replacement of obsolete components) to the Premises or the buildings or

         improvements thereon, or any alteration, addition, change, substitution

         or improvement thereof or thereto, whether structural or otherwise. The

         terms "repair" and "replacement" include, without limitation, the

         replacement of any portions of the Premises for which Tenant is

         responsible hereunder that have outlived their useful life during the

         term of this Lease (or any extensions or renewals thereof). Landlord

         and Tenant intend that the Rent received by Landlord shall be free and

         clear of any expense to Landlord for the construction, care,

         maintenance (including common area maintenance charges and charges

         accruing under easements or other agreements relating to the Premises),

          operation, repair, replacement, alteration, addition, change,

         substitution and improvement of or to the Premises. Upon the expiration

         or earlier termination of this Lease, Tenant shall remain responsible

         for, and shall pay to Landlord, any cost, charge or expense for which

         Tenant is otherwise responsible for hereunder attributable to any

         period (prorated on a daily basis) prior to the expiration or earlier

         termination of this Lease.

 

                                        9

<PAGE>

 

                  (c)       Tenant acknowledges and agrees that the Premises are

         and shall be leased by Landlord to Tenant in its present "AS IS"

         condition, and that Landlord makes absolutely no representations or

         warranties whatsoever with respect to the Premises or the condition

         thereof. Tenant acknowledges that Landlord has not investigated and

         does not warrant or represent to Tenant that the Premises are fit for

         the purposes intended by Tenant or for any other purpose or purposes

         whatsoever, and Tenant acknowledges that the Premises are to be leased

         to Tenant in their existing condition, i.e., "AS IS", on and as of the

         Effective Date.

 

6.         CONDEMNATION

 

                  (a)       In the event a Material Taking shall occur during the

         term of this Lease or any extension or renewal, then in such event,

         Tenant shall have the option of terminating this Lease as of a date no

          earlier than the date of such Material Taking, such termination date to

         be specified in a written notice of termination to be given by Tenant

         to Landlord not fewer than fourteen (14) days prior to the date on

         which possession of the Premises, or the affected part thereof, must be

         surrendered to the condemning authority or its designee.

 

                  (b)       In the event of any Taking which does not constitute

         a Material Taking or in the event Tenant does not elect to terminate

         this Lease upon the occurrence of a Material Taking, then this Lease

         shall terminate only with respect to the portion of the Premises taken

         by such Taking and Landlord shall make its award available to Tenant

         and Tenant shall, to the extent of the award from such Taking (which

         term "award" shall mean the net proceeds after deducting expenses of

         any settlement, or net purchase price under a sale in lieu of a

         Taking), promptly restore or repair the Premises (except those items of

         Tenant's Property which Tenant is permitted to remove under the terms

         of this Lease unless the award expressly includes compensation for such

         items) to substantially the same condition as existed immediately prior

         to such Taking insofar as is reasonably possible. If the estimated cost

         of restoration or repair shall exceed the amount of Landlord's award,

         Tenant shall deposit with Landlord the amount of such excess. The award

         and any excess shall be held in trust by Landlord and made available by

         Landlord to Tenant, to the extent required herein, for the purpose of

         such restoration or repair. A just and proportionate part of the Rent

         payable hereunder shall be abated from the date of such Taking until

         ten (10) days after Tenant has restored the same and thereafter the

         Rent shall be reduced in proportion to the reduction in the then rental

          value of the Premises after the Taking in comparison with the rental

         value prior to the Taking. Landlord and Tenant shall make a good faith

         determination of the rental value of the Premises after such Taking

         based upon the negative economic impact of the Taking upon the

         profitability of the business of Tenant conducted at the Premises. If

         the award (excluding any portion of the award belonging to Tenant

         pursuant to Paragraph 6(c) below) shall exceed the amount spent or to

         be spent promptly to effect such restoration, repair or replacement,

         such excess shall unconditionally belong to Landlord and shall be paid

         to Landlord.

 

                  (c)       In the event of any Taking that does not result in

         the termination of this Lease, Tenant shall not be entitled (except for

         use in reconstruction as set forth herein) to

 

                                       10

<PAGE>

 

         any part of the compensation or award given Landlord for the Taking of

         the Land, but Tenant shall have the right to recover from the

         condemning authority such compensation as is specifically awarded to

         Tenant (i) to reimburse Tenant for any Taking of Tenant's Property or

         for any cost which Tenant may incur in removing Tenant's Property from

         the Premises and (ii) for loss of Tenant's business.

 

                  (d)       If this Lease is terminated by reason of a Taking,

         then Landlord shall be entitled to receive the entire award in any such

         condemnation or eminent domain proceedings or purchase in lieu thereof

         and Tenant hereby assigns to Landlord all of its right, title and

         interest in and to all and any part of such award, provided, however,

         Tenant shall be entitled to receive any award specifically made to

         reimburse Tenant for any Taking of Tenant's Property, moving expenses

         or business losses.

 

7.        TAXES AND ASSESSMENTS

 

                   (a)       Except as set forth herein, Tenant shall pay prior to

         delinquency all taxes and assessments which may be levied upon or

         assessed against the Land and all the improvements located thereon (and

         the Appurtenant Interests to the extent levied upon or assessed against

         Tenant as the direct or indirect beneficiary of such Appurtenant

         Interests) with respect to any Lease Year and all taxes and assessments

         of every kind and nature whatsoever arising in any way from the use,

         occupancy or possession of the Land and all the improvements located

         thereon (and the Appurtenant Interests to the extent levied upon or

         assessed against Tenant as the direct or indirect beneficiary of such

         Appurtenant Interests) with respect to any Lease Year, together with

         all taxes levied upon or assessed against Tenant's Property with

         respect to any Lease Year. To that end, except as otherwise expressly

         provided below, Landlord shall not be required to pay any taxes or

         assessments whatsoever which relate to or may be assessed with respect

         to any Lease Year against this Lease, the Rent and other amounts due

         hereunder, the Premises or Tenant's Property; provided, however, that

         any taxes or assessments which may be levied or assessed against the

         Land and all the improvements located thereon (and the Appurtenant

         Interests to the extent levied upon or assessed against Tenant as the

         direct or indirect beneficiary of such Appurtenant Interests) for a

         period ending after the termination hereof shall be prorated between

         Landlord and Tenant as of such date. Landlord agrees to provide to

          Tenant, within ten (10) business days after its receipt thereof, any

         tax bills and other legal or governmental notices relating to the

         Premises that Landlord receives. Notwithstanding any terms of this

         Lease to the contrary, nothing contained in this Paragraph 7 or

         elsewhere in this Lease shall obligate Tenant to pay (i) any income,

         profit, franchise or similar tax that may be imposed upon or assessed

         against Landlord with respect to the Rent and income derived from this

         Lease under any law now in force or hereafter enacted, or (ii) to pay

         any inheritance, estate, succession, gift or any form of property

         transfer tax which may be assessed or levied against Landlord

         (excluding any real estate assessments based on value after a transfer

         to a third party).

 

                  (b)       Within thirty (30) days after Tenant receives any

         paid receipted tax bills relating to the Premises, Tenant shall furnish

         Landlord with copies thereof. Tenant may, at its option, contest in

         good faith and by appropriate and timely legal proceedings any tax or

         assessment relating to the Premises; provided, however, that Tenant

         shall

 

                                        11

<PAGE>

 

         indemnify and hold Landlord harmless from any loss or damage resulting

         from any such contest, and all expenses of the same (including, without

         limitation, all attorneys' and paralegal fees, and court and other

         costs) shall be paid solely by Tenant. Landlord shall, at the request

         of Tenant, execute or join in the execution of any instruments or

         documents necessary in connection with such contest or proceedings, but

         Landlord shall incur no cost or obligation thereby.

 

8.        COMPLIANCE, UTILITIES, SURRENDER

 

                  (a)       Tenant, at its expense shall (i) promptly comply in

         all material respects with all municipal, county, state, federal and

         other governmental requirements and regulations, whether or not

         compliance therewith shall require structural or other changes in the

         Land and the improvements thereon (and the Appurtenant Interests to the

         extent properly imposed upon Tenant as the direct or indirect

         beneficiary of such Appurtenant Interests); (ii) obtain and maintain

         all permits, licenses and other authorizations required for the use of

         the Premises or any part thereof then being made by Tenant and for the

         lawful and proper installation, operation and maintenance by Tenant of

         all equipment and appliances necessary or appropriate for the operation

         and maintenance of the Land and the improvements thereon (and the

         Appurtenant Interests to the extent properly imposed upon Tenant as the

         direct or indirect beneficiary of such Appurtenant Interests); and

         (iii) comply in all material respects with all easements, restrictions,

         reservations and other instruments of record applicable to the

         Premises, including without limitation, any requirement in such

         instruments on behalf of the owner or occupant of the Land and

         improvements thereon (and the direct or indirect beneficiary of the

         Appurtenant Interests) to obtain and maintain insurance, and whether

         now in effect or recorded during the term of this Lease, provided,

         however that Landlord shall not execute or record any easements,

         restrictions or other instruments against or affecting the Premises

         without the prior written consent of Tenant. Tenant shall indemnify and

         save Landlord harmless from all expenses and damages by reason of any

          notices, orders, violations or penalties filed against or imposed upon

         the Premises, or against Landlord as owner thereof, because of Tenant's

         failure to comply with this paragraph. Notwithstanding the foregoing,

         Tenant shall be entitled to contest any governmental requirement,

         restriction or other matter described above so long as all costs

         incurred in connection therewith are paid by Tenant.

 

                  (b)       Tenant shall pay all charges for heat, water, gas,

         sewage, electricity and other utilities used or consumed on the Land

         and the improvements thereon (and the Appurtenant Interests to the

         extent properly imposed upon Tenant as the direct or indirect

         beneficiary of such Appurtenant Interests) during the term hereof and

         shall contract for the same in its own name. Landlord shall not be

         liable for any interruption or failure in the supply of any such

         utility service to the Premises, except to the extent such interruption

         or failure results from the willful misconduct or gross negligence of

         Landlord or its agents, employees or contractors.

 

                  (c)       Tenant shall peacefully surrender possession of the

          Premises (excluding Tenant's Property), to Landlord at the expiration,

         or earlier termination, of the original term of this Lease or any

         extension or renewal thereof.

 

                                       12

<PAGE>

 

9.        QUIET ENJOYMENT

 

         Landlord covenants and warrants that Landlord has full power and

authority to enter into this Lease, and that Tenant shall have and enjoy full,

quiet and peaceful possession of the Premises, its appurtenances and all rights

and privileges incidental thereto during the term hereof and any extension or

renewal thereof, subject to the provisions of this Lease and any easements,

restrictions, reservations and other instruments of record applicable to the

Premises and in existence at the time of the conveyance of the Premises to

Landlord by Tenant or thereafter (subject, however, to the restriction on

Landlord's ability to execute and record such easements, restrictions and

instruments, as described in Paragraph 8 above). Landlord agrees to cause the

holder of any mortgage now or hereafter relating to the Premises to execute and

deliver to Tenant a Subordination and Nondisturbance Agreement in the form

contemplated by Paragraph 18.

 

10.       OPTION TO RENEW

 

         Tenant shall have four (4) successive five (5) year options to extend

the original term of this Lease for up to an additional twenty (20) years upon

the same terms, covenants, conditions and rental as set forth herein, provided

that Tenant is not in Default (as hereafter defined, beyond applicable periods

of notice and cure) hereunder at the commencement of the applicable option

period. In the event Tenant elects not to exercise the option to extend the term

hereof for the next succeeding five (5) year option period, Tenant shall give

written notice to Landlord not less than six (6) months prior to the

then-existing expiration date of the term hereof. Should Tenant fail to give

Landlord such timely written notice during the required period, this Lease shall

automatically renew for the next succeeding five (5) year option period pursuant

to the terms hereof.

 

11.       NONCOMPETE

 

         Tenant shall not own an interest in, or operate, an O'Charley's

Restaurant (other than the restaurant at the Premises or any O'Charley's

Restaurant currently operating as of the date hereof) within a one (1) mile

radius of the Land during the term of this Lease and any renewals hereof.

Violation of this covenant shall, at Landlord's option, be and constitute a

default hereunder and, because the parties agree that damages would not be an

adequate remedy, Tenant hereby agrees that Landlord shall be entitled to

equitable relief, including injunctive relief and specific performance in

addition to any remedy available at law. Tenant further agrees that the

restrictions and the duration of such restrictions set forth in this paragraph

are reasonable under the circumstances and in particular, in relation to

Tenant's restaurant business. Notwithstanding the foregoing, the requirements of

this Paragraph 11 shall not apply to (a) any O'Charley's Restaurant in which

Tenant owns an interest or operates as of the Effective Date, or (b) any other

type or concept of restaurant (other than an O'Charley's Restaurant) now or

hereafter owned or operated by Tenant.

 

12.       DEFAULT

 

                  (a)       If any one or more of the following events occur,

         said event or events shall hereby be referred to as a "Default":

 

                                       13

<PAGE>

 

                  (i)       If Tenant fails to pay Rent or any other charges

         required (x) under this Lease or at Landlord's option, under any other

         lease or agreement dated as of the date hereof or within ninety (90)

         days of the date hereof with Landlord or an affiliate of Landlord when

         same shall become due and payable, provided, however, the aggregate of

         all amounts in default under such Leases exceeds the sum of Fifty

         Thousand Dollars ($50,000.00), and (y) such failure continues for ten

         (10) days or more after written notice from Landlord. In the event of

         any such default, Landlord shall be entitled to the default interest

         rate specified in the applicable leases (if any) during the term of any

         such default, and any of Tenant's monies deposited with Landlord shall

         be immediately and irrevocably assigned to Landlord to apply to any

         obligations of Tenant owed to Landlord in any manner Landlord deems

         necessary.

 

                  (ii)      If Tenant shall fail to perform or observe any term,

         condition, covenant, agreement, or obligation required: (x) under this

         Lease or at Landlord's option, any other lease or other agreement dated

         as of the date hereof or within ninety (90) days of the date hereof

         with Landlord or an affiliate of Landlord; and (y) such failure

         continues for thirty (30) days after written notice from Landlord

         (except that such thirty (30) day period shall be automatically

          extended for such additional period of time as is reasonably necessary

         to cure such Default, if such Default cannot reasonably be cured within

         such period, provided Tenant is in the process of diligently curing the

         same).

 

                  (iii)     If Tenant fails to continuously operate its business

         upon the Land except for temporary periods of closure caused by

         casualty, condemnation, repairs, Acts of God, or temporary and

         reasonable periods of remodeling or while actively seeking to sublease

         or assign the Premises, not to exceed (in any such event) two hundred

         seventy (270) days (plus any additional period as may reasonably be

         required in order to repair or restore the Premises following a

         casualty or condemnation so long as Tenant has been diligently

         proceeding with such repair or restoration) in any Lease Year without

         first obtaining Landlord's written approval.

 

                  (iv)       If Tenant shall make an assignment for the benefit of

         creditors or file a petition, in any federal or state court, in

         bankruptcy or reorganization, or make an application in any such

         proceedings for the appointment of a trustee or receiver for all or any

         portion of its property.

 

                  (v)       If any petition shall be filed under federal or state

         law against Tenant in any bankruptcy, reorganization, or insolvency

         proceedings, and said proceedings shall not be dismissed or vacated

         within ninety (90) days after such petition is filed.

 

                  (vi)      If a receiver or trustee shall be appointed under

         federal or state law for Tenant for all or any portion of the property

         of Tenant, and such receivership or trusteeship shall not be set aside

         within ninety (90) days after such appointment.

 

Notwithstanding the foregoing, a default under any such other lease or agreement

as of the date hereof or within ninety (90) days of the date hereof with

Original Tenant that has been (x) assigned to or become the subject of a

sublease with a franchisee of Original Tenant (and provided such franchisee is

not then in monetary default under such other lease or agreement), or

 

                                       14

<PAGE>

 

(y)sold and assigned by Original Tenant to an unrelated third party, shall not

be deemed to be, or considered in determining the existence of, a Default

hereunder. Likewise, a Default hereunder shall not be deemed to be, or

considered in determining the existence of, a default under any such other lease

or agreement as of the date hereof or within ninety (90) days of the date hereof

originally with Original Tenant that has been (xx) assigned to or become the

subject of a sublease with a franchisee of Original Tenant or (yy) sold and

assigned by Original Tenant to an unrelated third party.

 

                  (b)       During the continuance of any one or more of the

         aforementioned Defaults which are not cured within the cure period

         applicable thereto, if any, Landlord shall have the right, in addition

         to any other rights and remedies, to terminate this Lease by giving

         written notice of same to Tenant. Upon such notice, this Lease shall

         cease and expire, and Tenant shall surrender the Premises to Landlord.

         Notwithstanding such termination, Tenant's liability and obligation

         under all provisions of this Lease, including the obligation to pay

          Rent and any and all other amounts due hereunder shall survive and

         continue. In lieu of Tenant's continuing obligations hereunder (and as

         final liquidated damages therefor), during the continuance of Tenant's

         Default under this Lease, Landlord may, by notice to Tenant, accelerate

         the monthly installments of Rent due hereunder for the remaining term

         of this Lease. If Landlord does accelerate the Rent due hereunder, then

         the accelerated Rent shall be equal to the Rent which accrued prior to

         the date of termination, plus the Rent that would have accrued during

         the balance of the term (not including any renewal (term(s) not

         theretofore exercised by Tenant) of the Lease (as if this Lease had not

         been terminated), less the fair rental value of the Premises for the

         corresponding period, plus any and all reasonable expenses which

         Landlord may have incurred in re-letting the Premises including, but

          not limited to, allocable overhead, reasonable alterations to the

         building to protect the integrity of existing improvements or to

         facilitate reletting of the existing improvements and the Premises,

         leasing, construction, architectural, reasonable legal and accounting

         fees. The accelerated Rent shall be discounted to present value at an

         annual interest rate equal to eight and one-half percent (8.5%). Tenant

         hereby expressly agrees that its occupation of the Premises after any

         such termination constitutes forcible detainer (or equivalent) as is

         defined by the law in force in the jurisdiction in which the Land is

         located. Tenant further agrees that in the event of a Default, any

         monies deposited by Tenant with Landlord shall be immediately and

         irrevocably assigned and released to Landlord (without further action

         by Landlord or Tenant) to be applied by Landlord against any and all of

         Tenant's obligations under this Lease, in any manner as Landlord may

         determine.

 

                  (c)       If this Lease shall terminate as provided

         hereinabove, Landlord may re-enter the Premises and remove Tenant, its

         agents and subtenants, together with all or any of Tenant's Property,

         by suitable action at law, or by force. Tenant waives any right to the

         service of any notice of Landlord's intention to re-enter and Landlord

         shall not be liable in any way in connection with any action it takes

         pursuant to this paragraph. Notwithstanding such re-entry or removal,

         Tenant's liability under this Lease shall survive and continue unless

         Tenant has paid in full the liquidated damages set forth in Paragraph

         12(b) above.

 

                                       15

<PAGE>

 

                  (d)       In case of re-entry, repossession or termination

         (following a Default) of this Lease (unless Landlord exercises its

         right to liquidated damages as described above), Tenant shall remain

         liable for Rent, any additional rent and all other charges provided for

         in this Lease for the otherwise remaining term of this Lease as and

         when due hereunder, and any and all expenses which Landlord may have

         incurred in re-entering the Premises including, but not limited to,

         allocable overhead, alterations to the building, leasing, construction,

         architectural, legal and accounting fees. Landlord shall have the

         right, but not the obligation (provided, however, that Landlord shall

         use reasonable efforts to mitigate Tenant's damages), to relet the

         whole or part of the Premises upon terms which Landlord, in its

         reasonable discretion, deems appropriate and Tenant shall be

         responsible for all expenses incurred by Landlord in reletting or

         attempting to relet and all rent collected from reletting shall be

         credited against all of Tenant's obligations hereunder.

 

                  (e)       In the event of a Default, Landlord may, at its sole

         option, enter upon the Premises, if deemed necessary by Landlord in its

         sole discretion, and/or do whatever may be deemed necessary by Landlord

         in its sole discretion to cure such Default by Tenant. Tenant shall pay

         to Landlord within five (5) days after Landlord's request, all costs

         incurred by Landlord in connection with Landlord's curing of such

         Default. In addition to the above costs, in the event Landlord does not

         receive payment from Tenant when due under this Paragraph 12(e), then

         interest at the rate of ten percent (10%) per annum or, if less, the

         highest rate allowable by law, shall be due and payable with respect to

         such payment from the due date thereof until Landlord receives such

         payment.

 

                  (f)       In the event of a Default, if Landlord engages legal

         counsel in connection with the enforcement of any of the terms and

         provisions of this Lease, then, in addition to all other sums due from

         Tenant to Landlord under this Lease, Tenant shall pay to Landlord (if

         Landlord is the prevailing party) any and all attorneys' fees,

         paralegal fees, and legal costs and expenses incurred by Landlord,

         whether or not judicial proceedings are filed, and including on appeal

         and in any bankruptcy proceedings.

 

                  (g)       Notwithstanding the foregoing, in the event Tenant

         fails (beyond any applicable cure periods set forth herein) to (1)

         maintain and keep in full force and effect any or all of the insurance

         policies required pursuant to Paragraph 4 of this Lease, or (2) pay

         when due any and all taxes and/or assessments levied or assessed

         against the Premises, then in the event Landlord does not terminate

         this Lease, and at Landlord's request and in Landlord's sole

         discretion, Tenant shall escrow funds for payment of such insurance

         premiums and taxes and assessments in the following manner:

 

                  (i)       Tenant shall immediately pay to Landlord all sums

         expended by Landlord, plus an additional ten percent (10%) thereof

         (which shall not be a penalty, but shall instead become part of the

         "Escrow Funds" described below), for purposes of: (1) bringing current

         or reinstating or purchasing the insurance required under Paragraph 4

         of this Lease; and/or (2) paying all taxes and assessments which are

         past due or currently due. Thereafter, Tenant shall pay to Landlord on

         the first (1st) business day of each month along with the monthly

         payment of Rent a sum (the "Escrow Funds") equal to one-twelfth

         (1/12th) of: (A) the yearly premium(s) for the insurance required to be

         maintained by Tenant pursuant to Paragraph 4 of this Lease; and/or (B)

         the annual taxes

 

                                        16

<PAGE>

 

         and assessments levied or assessed against the Premises as reasonably

         estimated by Landlord, based on the prior year's taxes and assessments

         levied or assessed against the Premises.

 

                   (ii)      Landlord shall apply the Escrow Funds to pay said

         insurance and/or taxes and assessments. No interest shall be payable by

         Landlord on the Escrow Funds unless required by applicable law, in

         which event all such interest shall be first applied by Landlord to pay

         such insurance premiums and/or taxes and assessments. Landlord shall

         provide to Tenant an annual accounting of the Escrow Funds in

         Landlord's normal format showing credits and debits to the Escrow Funds

         and the purpose for which each debit to the Escrow Funds was made.

 

                  (iii)     If the amount of the Escrow Funds held by Landlord at

         the time of the annual accounting thereof shall exceed the amount

         deemed necessary by Landlord to provide for the payment of such

         insurance premiums and/or taxes and assessments as they become due,

         such excess shall be credited to Tenant against the next monthly

         installment or installments of Escrow Funds due. If at any time the

         amount of the Escrow Funds held by Landlord shall be less than the

         amount deemed necessary by Landlord to pay such insurance premiums

         and/or taxes and assessments as they become due, Tenant shall pay to

         Landlord any amount necessary to make up the deficiency within thirty

         (30) days after written notice from Landlord to Tenant requesting

         payment thereof.

 

                  (iv)      The foregoing Escrow Funds arrangement shall

         terminate if Tenant fully and faithfully complies with the provisions

         of this Paragraph 11(g) for a period of twenty-four (24) consecutive

         months. Upon the termination or expiration of this Lease or upon

          termination of the foregoing Escrow Funds arrangement pursuant to the

         preceding sentence, Landlord shall promptly refund (or credit to Tenant

         against amounts due to Landlord in the case of termination due to

         Tenant's Default) any Escrow Funds held by Landlord.

 

                  (h)       The rights and remedies of Landlord set forth herein

         shall be in addition to any other right and remedy now or hereafter

         provided by law, and all such rights and remedies shall be cumulative.

         No action or inaction by Landlord shall constitute a waiver of any

         Default, and no waiver of any Default shall be effective unless it is

         in writing, signed by Landlord.

 

13.       HOLDING OVER

 

         In the event Tenant remains in possession of the Premises after the

expiration of this Lease without executing a new written lease acceptable to

Landlord and Tenant, Tenant shall occupy the Premises as a tenant from month to

month subject to all the terms hereof (except as modified by this Paragraph),

but such possession shall not limit Landlord's rights and remedies by reason

thereof nor constitute a holding over. In the event of such month to month

tenancy, the monthly installment of Rent due for each such month shall increase

to be one hundred fifty percent (150%) the monthly installment thereof which was

payable during the last month of the term of this Lease.

 

                                       17

<PAGE>

 

14.       WAIVER OF SUBROGATION

 

         Notwithstanding anything in this Lease to the contrary, other than

Tenant's obligations to repair, restore or rebuild described in Paragraph 4 of

this Lease, neither party shall be liable to the other for any damage or

destruction of the Premises resulting from fire or other casualty covered by

insurance required of either party hereunder, whether or not such loss, damage

or destruction of the Premises is caused by or results from the negligence of

such party (which term includes such party's officers, employees, agents and

invitees), and each party hereby expressly releases the other from all liability

for or on account of any said insured loss, damage or destruction, whether or

not the party suffering the loss is insured against such loss, and if insured

whether fully or partially. Notwithstanding the foregoing, the waiver and

release provisions set forth above shall not apply with respect to an action of

either party hereto that has the effect of voiding the applicable insurance


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