GROUND LEASE
BETWEEN
Miko Investments, LLC, a Tennessee limited liability company, its
successors or assigns
as LANDLORD
AND
DON PABLO'S OPERATING CORP.
as TENANT
0000 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000-0000
LOCATION
FREE STANDING SITE
GROUND LEASE
This Ground Lease ("Lease") is entered into between Landlord and Tenant who
are named below.
1. BASIC PROVISIONS
1.1 Landlord. The Landlord is Miko Investments, LLC, a Tennessee limited
liability company, its successors and assigns, whose address is 0000-00 Xxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000 ("Landlord").
1.2 Tenant. The Tenant is DON PABLO'S OPERATING CORP., an Ohio corporation,
whose address is c/o Avado Brands, Inc., Xxxxxxx at Washington, Xxxxxxx, XX
00000 ("Tenant").
2. LEASED PREMISES
2.1 Real Property. The real property consists of land located in Xxxx
County, Tennessee containing approximately 1.423 acres as more particularly
described or shown on Exhibit "A" attached hereto, and incorporated herein
("Real Property").
2.2 Appurtenant Rights. Tenant's rights hereunder shall include the right
to use, in common with others entitled thereto, any common areas, sidewalks,
pedestrian circulation areas, parking lots, ingress and egress easements,
driveways, roads and rights of way, and all easements as currently exist (if
any) that are appurtenant to the Real Property ("Appurtenant Rights").
2.3 Leased Premises. The Leased Premises includes the Real Property
described in Section 2.1 above, together with Improvements and all Appurtenant
Rights (if any) described in Section 2.2 above ("Leased Premises").
3. DATES, TERMS AND TIME PERIODS
3.1 Effective Date. The effective date of this Lease shall be the last date
of execution by a party ("Effective Date"). The last party to sign agrees that
it shall immediately notify the other party of its execution of this Lease
within one (1) business day, and provide to the other party its original
signature page within three (3) business days of execution.
3.2 Initial Term. The initial term of the Lease shall commence on the
Effective Date and end five (5) years after the Effective Date ("Initial Term")
provided, however, that the partial calendar month, if any, that occurs at the
beginning of the Initial Term shall be added to the first Lease Year for the
calculation of rent and other charges hereunder.
3.3 Lease Extension. Tenant's right and option to extend the term of this
Lease for one (1) period of five (5) years, all upon the same terms and subject
to the same conditions of this Lease ("Lease Extension") except Base Rent (as
herein defined) and other payments due Landlord. Each such additional period is
referred to as an Extension Term ("Extension Term"). Tenant's right and option
to exercise the Lease Extensions shall be subject to the following: (a) that the
then existing Lease be in full force and effect, and that Tenant not be in
default thereunder; and (b) that Tenant has given written notice to Landlord of
Tenant's exercise of each immediately upcoming option at least one hundred
eighty (180) days prior to the expiration of the then existing Term.
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3.4 Term. The Term of the Lease shall mean the Initial Term and any
Extension Terms exercised by Tenant ("Term").
4. GRANT, USE AND POSSESSION
4.1 Grant. In consideration of the rents, covenants and leases hereinafter
set forth to be paid, observed and performed by Tenant, Landlord hereby leases
and demises unto Tenant the Leased Premises, to have and to hold the same for
the Term of the Lease.
4.2 Use. Tenant intends to use the Leased Premises for the construction and
operation of a Don Pablo's Mexican Kitchen restaurant serving alcoholic
beverages ("Intended Use"). Tenant shall have the right to use the Leased
Premises for any lawful and legal use ("Tenant Use"); provided; if the Leased
Premises shall cease being used for restaurant purposes, then Tenant must obtain
the prior written consent of the Landlord, which such consent shall not be
unreasonably withheld, delayed, or conditioned.
4.3 Possession and Quiet Enjoyment. Landlord covenants to deliver to Tenant
possession of the Leased Premises, free, clear and discharged of possession or
the right of possession by any party, on or before the Possession Date. Landlord
shall assure Tenant of quiet enjoyment and possession of the Leased Premises so
long as Tenant fully performs all of its obligations under this Lease.
4.4 Exclusivity. During the continuation of this Lease, and so long as (i)
the Leased Premises are used as a Don Pablo's Mexican Kitchen restaurant serving
alcoholic beverages; and (ii) the Tenant is not in default hereunder, any
property now or hereafter owned leased or controlled by Landlord or any entity
of which Landlord owns an interest, within five (5) miles of the Leased
Premises, shall be restricted from a use similar to a Don Pablo's Mexican
Kitchen if it serves Mexican food and wine, beer or other alcoholic beverages
and said term shall specifically include, but shall not be limited to, such
concepts as "On the Border", "Cozymels", "Ninfas," "El Fenix" and other such
similar type restaurant concepts. This restriction will be included in the
Memorandum of Lease, if recorded, pursuant to Section 16.7 herein.
4.5 Subordination/Non-Disturbance. This Lease and any easement rights
granted herein or in conjunction with this Lease shall be subject and
subordinate to any mortgages that may hereafter be placed upon the Leased
Premises by Landlord or its successors or assigns, and to any and all advances
to be made thereunder, and to the interest thereon, and all renewals,
replacements, consolidation and extensions thereof, provided that the
mortgagee(s) named in said mortgage(s) delivers to Tenant a recognition and
non-disturbance Lease reasonably satisfactory to Tenant, assuring that Tenant's
rights under this Lease shall be recognized and not disturbed in the event of
foreclosure, so long as Tenant is not in default and Tenant attorns to the party
acquiring title to the Leased Premises following such foreclosure. Tenant and
Landlord shall execute and deliver, and Landlord shall ensure that Landlord's
mortgagee executes and delivers, whatever reasonable instruments may be required
for such purposes.
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5. RENT AND OTHER PAYMENTS
5.1 Base Rent.. Beginning on the Effective Date, Tenant shall pay Landlord,
at Landlord's notice address set forth in Section 16.1, or at such other place
as Landlord may hereafter designate in writing, as base rent for the Leased
Premises, the amounts set out below ("Base Rent"). All rental payments coming
due under this Lease shall be payable in monthly installments, in advance,
without notice or demand, on or before the fifth (5th) day of each and every
calendar month for the full Initial Term and all Lease Extensions exercised by
Tenant. Rent for a partial month beginning on the Effective Date or at the end
of the Initial or any Extension Term shall be prorated on the basis of a thirty
(30) day month. If Tenant shall fail to pay, within five (5) days from the date
same is due and payable, any rent or other amounts due and payable under this
Lease, then such unpaid amount shall bear interest from the due date thereof to
the date of payment at the rate of twelve percent (12 %) per annum, or at the
maximum legal rate, whichever is less.
ANNUAL RENT MONTHLY RENT
INITIAL TERM $120,000.00 $10,000.00
LEASE EXTENSIONS $132,000.00 $ 11,000.00
5.2 Taxes. Beginning on the Effective Date and continuing throughout the
Initial Term and all Extension Terms, Tenant shall pay: (1) all taxes levied
against all personal property of Tenant located on the Leased Premises; and, (2)
all business, license, rent, sales and excise taxes levied against the Tenant or
Tenant's occupancy of the Leased Premises. Landlord shall pay all real property
taxes and assessments levied against the Leased Premises and Tenant shall
reimburse Landlord for said taxes on an monthly basis, during the term of this
Lease., At the end of the calendar year there shall be a reconciliation and
within ten (10) days of Tenant's receipt of a paid tax statement from Landlord,
Tenant shall pay any shortage or Landlord shall credit (against Base Rent) any
overpayment. Real property taxes and assessments shall be prorated from the
Effective Date to the end of the Term based upon a three hundred sixty-five
(365) day year. Tenant shall have the right with Landlord's cooperation, but at
Tenant's expense, to contest any tax or assessment, and to pay in installments
where allowed by the taxing authority. Real property taxes shall not include
business, income, gross receipts, or profits taxes, estate, succession,
inheritance, transfer, corporation, or franchise taxes assessed against
Landlord.
5.3 Special Assessment. In the event of any special assessments for public
capital improvements placed on the Leased Premises, Tenant shall make monthly
payments by way of reimbursement to Landlord with the payments being based upon
the useful life of the capital improvement, provided that such assessments are
both levied and payable during the continuance of this Lease. To the extent that
such special assessments are payable in installments extending beyond the
termination or cancellation of this Lease, Tenant shall be required to pay only
those installments that are required to be paid prior to the termination,
cancellation or expiration of this Lease.
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5.4 Late Fee. Tenant covenants and agrees to pay to Landlord, from time to
time as provided in this Lease, and as "Additional Rent" a late charge of five
percent (5%) of the amount then due to be paid by Tenant hereunder if not paid
within five (5) days after the due date.
5.5 Net Lease. This Lease is a net lease and all Base Rent shall be paid
without notice, demand, counterclaim, setoff, deduction or defense and without
abatement, suspension, deferment, diminution, or reduction. Except as otherwise
provided in this Lease, this Lease shall not terminate nor shall Tenant have any
right to terminate this Lease or be entitled to the abatement of any Rent
hereunder or any reduction thereof, nor shall the obligations of Tenant under
this Lease be otherwise affected, for any reason during the Term except as
specifically provided herein. It is the purpose and intent of Landlord and
Tenant that Rent shall be absolutely net to Landlord, so that this Lease shall
yield, net, to Landlord, the Rent specified herein throughout the Term, and that
all costs, expenses and obligations of every kind or nature whatsoever relating
to the Leased Premises which may arise and become due as specified herein during
the Term shall be paid by Tenant, and that Landlord shall be indemnified and
saved harmless by Tenant from and against the same.
6. IMPROVEMENTS
6.1 Improvements. Improvements shall mean all buildings, installations,
structures, signage, utilities, lighting facilities, landscaping, sidewalks,
parking areas, drives and equipment and all their components and all
identification, advertising, and directional signs required by Tenant to be
located on the Leased Premises.
6.2 (A) Title to Tenant Improvements. Title to and ownership of all tenant
improvements during the Initial Term or any Lease Extension shall at all such
times remain in and with Tenant. Landlord acknowledges and agrees that it does
not hereby acquire any right, equity, title or interest in or to any such
improvements during continuance of this Lease. Landlord shall take such actions
as may be necessary to ensure that Tenant's said improvements remain free from
any liens and encumbrances arising by, through or under Landlord. Upon
termination or expiration of this Lease, all Tenant Improvements shall become a
part thereof and title thereto shall vest in Landlord or Landlord's successors
or assigns, except for those articles and items that Tenant is entitled to
remove pursuant to Sections 6,4 and 6.9.
(B) Title to Leased Premises. Tenant shall take such actions as may be
necessary to ensure that Landlord's said Leased Premises remain free from any
liens and encumbrances arising by, through or under Tenant. Upon termination or
expiration of this Lease, all Tenant Improvements (and the Leased Premises)
shall thereto shall vest in Landlord.
6.3 Signage. Tenant may install and maintain on the Leased Premises such
identification, advertising and directional signs and media as Tenant
determines, including a pylon sign with the maximum size and height permitted
pursuant to the appropriate governmental requirements. Tenant may place on the
windows or inside or outside walls of the Property any advertising materials,
banners, and related items, as well as its usual signs, logos, lettering and
notices normally installed in its restaurants, or used in conjunction with
Tenant's regional or national advertising campaigns . Tenant shall comply with
all laws applicable to Tenant's signs on the Leased Premises.
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6.4 Tenant's Personal Property. Trade fixtures, inventory, signs,
equipment, furniture and other personal property of whatever kind and nature
kept or installed on the Leased Premises by Tenant shall not become the property
of Landlord nor a part of the realty, no matter how affixed to the Leased
Premises, and the same may be removed by Tenant at any time and from time to
time during the Initial Term and all Extension Terms ("Tenant's Personal
Property") without any damage to the Leased Premises. All trade fixtures, signs,
equipment, furniture and other personal property of whatever kind shall be
installed and constructed so as to comply with all federal, state and local
laws. Landlord agrees to subordinate any lien it may have, statutory or
otherwise, in Tenant's Personal Property, as security for performance of any or
all of Tenant's obligations under this Lease, to the right and lien of a
conditional Landlord, equipment-lessor and any party having or acquiring a
security interest in such personal property of Tenant. Upon request of Tenant or
its assignees or any subtenant or mortgagee, Landlord shall execute and deliver
any lien subordination setting forth that Landlord subordinates its lien on any
of Tenant's Personal Property in favor of the vendor, lessor, chattel mortgagee,
or any holder or owner. Landlord shall further acknowledge that property covered
by any such subordination is personal property of Tenant and is not to be nor to
become a part of the realty, no matter how affixed thereto, and that such
property may be removed from the Leased Premises by the vendor, lessor, chattel
mortgagee, owner, or holder at any time, free and clear of any claim or lien of
Landlord and of Landlord's creditors, subject to the terms of this Lease. In no
event shall Landlord be required to subordinate its fee interest in the Leased
Premises or the Improvements.
6.5 Utilities. Tenant shall be solely responsible for and shall promptly
pay all charges for heat, water, gas, electricity and any other utility used or
consumed in or upon the Leased Premises.
6.6 Alterations. During the Initial Term and any Lease Extension, Tenant
shall have the right, at its sole cost and expense, to alter, remodel or
reconstruct any buildings and other improvements on the Leased Premises that
Tenant reasonably deems necessary or appropriate for its intended use of the
Leased Premises, provided that such alteration, remodeling or reconstruction
shall not: (i) diminish the value of the Leased Premises, (ii) violate any
codes, ordinances, or governmental regulations; and (iii) violate any insurance
carrier requirements. Notwithstanding the foregoing, any major repairs which
total more than Ten Thousand Dollars ($10,000.00) shall require Landlord's prior
consent, not to be unreasonably withheld, conditioned or delayed so long as
Tenant provides Landlord with a set of plans outlining such alterations,
remodeling or repair work.
6.7 Liens. Tenant shall not do or suffer anything to be done whereby the
Leased Premises may be encumbered by any mechanic's lien. Tenant shall, whenever
and as often as any mechanic's lien is filed that purports to attach to
Landlord's fee interest, and further purports to be for labor performed or
material furnished to Tenant, either (i) discharge the same of record within ten
(10) days after the date of filing, or (ii) contest the same by posting a bond
in good faith. Tenant shall fully indemnify and hold Landlord harmless against
any loss, cost or damage resulting therefrom. Landlord shall have the right to
post and maintain on the Leased Premises any notice of non-responsibility
provided for under applicable law. Tenant shall obtain lien waivers by any and
all contractors and subcontractors working on the Leased Premises. If Tenant
fails to keep this covenant, in addition to any other remedies available to
Landlord under this Lease or otherwise, Landlord may at its option discharge
such lien, in which event Tenant agrees to pay Landlord a sum equal to the
amount of the lien thus discharged plus Landlord's internal administrative
costs, attorneys' fees, expenses, and damages thereby caused Landlord.
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6.8 Tenant Maintenance. Except as otherwise provided in this Lease, Tenant
shall keep and maintain the Leased Premises in good order, condition and repair,
normal wear and tear excepted, and shall promptly make or cause to be made any
and all necessary or appropriate repairs, replacements, or renewals
(collectively, "Repairs"). All Repairs shall be at least equal in quality and
class to the original work. Landlord shall not be required to make or pay for
any Repairs in, on, or to the Premises during the Term
6.9 Tenant Surrender. At the expiration of the tenancy hereby created,
Tenant shall surrender the Leased Premises in as good a condition as received,
normal wear and tear and damage by acts of God and other casualties excepted,
and shall surrender all keys for the Leased Premises to Landlord at the place
then fixed for the payment of rent. Tenant shall have ten (10) days following
termination of the Lease to remove Tenant's Personal Property, before
surrendering the Leased Premises as aforesaid, and shall repair any damage to
the Leased Premises caused thereby.
7. TENANT INSURANCE
7.1 General Insurance Requirements. Tenant shall maintain at Tenant's
expense the insurance described in this Lease with insurance carriers licensed
in the state where the Leased Premises are located and rated A or better by
Best. Tenant shall provide Landlord with certificates of insurance upon request
confirming coverage and confirming that policies will not be terminated without
thirty (30) days prior notice to Landlord. Such certificates shall name Landlord
(and its mortgagee, if any) as an additional insured and loss payee thereunder.
Notwithstanding the insurance provisions of this Lease, Tenant may provide
insurance through a blanket policy with such commercially reasonable deductibles
as Tenant may determine from time to time so long as Tenant fully indemnifies
Landlord for the amount of the deductible.
7.2 Casualty Insurance. Tenant shall maintain casualty insurance on the
Leased Premises, together with endorsements for personal property in the Leased
Premises in an amount not less than one hundred percent (100%) of the
replacement value of the Improvements including but not limited to loss of rents
coverage and the costs of debris removal. The replacement value shall be
determined by Tenant's insurer. Any insurance policy shall contain a waiver by
the insurer of any right of subrogation which arises from any payment under an
insurance policy required by this Section 7.
7.3 Liability Insurance. Tenant shall maintain commercial general liability
insurance with coverage of not less than Five Million Dollars ($5,000,000.00)
which insurance shall include "dram shop" and liquor liability coverage.
Landlord shall be added to the policy as an additional insured as its interest
may appear.
7.4 Failure to Provide. If Tenant shall fail to procure and maintain any
insurance required to be carried pursuant to this Lease, then Landlord may, but
shall not be obligated to, procure and maintain the same, but at the expense of
Tenant, and Tenant shall reimburse Landlord the cost therefor on demand.
8. LEASEHOLD MORTGAGE
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8.1 Grant by Tenant. Tenant shall have the right, from time to time, to
convey or encumber by one or more mortgages, deeds of trust or other security
instruments, all or any part of its leasehold interest hereunder. Tenant shall
notify Landlord in writing of the name and address of each mortgagee, trustee or
other holder of any such security interest. Tenant may substitute one mortgagee,
trustee or other holder in the place of another, provided written notice thereof
is given to Landlord..
8.2 Landlord's Fee Interest Not Encumbered. The fee simple interest of
Landlord cannot be pledged by Tenant to any leasehold mortgage holder. Further,
Landlord shall have no liability to any such leasehold mortgage holder, or its
assignee, other than its obligations to honor the terms of this Lease.
9. LANDLORD AND TENANT OBLIGATION
9.1 Estoppel Certificate. Within ten (10) days following the request of
Tenant or Landlord , Tenant or Landlord shall execute an estoppel certificate
certifying as to certain matters pertaining to this Lease, including without
limitation, (i) that the copy of this Lease provided to the requesting party is
a true, correct and complete copy of this Lease, (ii) that this Lease is in full
force and effect as of the date of the estoppel certificate, and has not been
modified or amended except as disclosed therein, (iii) that this Lease sets
forth the entire Lease between Landlord and Tenant relating to the leasing of
the Leased Premises, (iv) the commencement date and termination date of this
Lease, (v) whether there exists any uncured or outstanding defaults or events of
default under this Lease, (vi) whether any notice of termination has been given
or received by either party with respect to the Lease, (vii) the date through
which all payments due under this Lease have been paid, (viii) the amount of
rent due and payable under this Lease, and (ix) whether there are any disputes
between Landlord and Tenant with respect to any rental due under this Lease or
with respect to any provision of this Lease. If either party requests an
estoppel certificate pursuant to this Section more than once every six (6)
months, it shall be at the requesting party's expense.
10. DAMAGE OR DESTRUCTION TO LEASED PREMISES
10.1 Casualty. In the event of any damage to or destruction of all or any
part of the Leased Premises, Tenant will promptly give written notice thereof to
Landlord generally describing the nature and extent of such damage or
destruction. There shall be no abatement of or adjustment to Rent under this
Lease as a result of any damage or destruction.
10.2 Restoration. In the event of any casualty or damage to all or any part
of the Improvements, Tenant shall, at its expense, promptly commence and
complete the restoration of the Improvements substantially to its architectural
condition as existed immediately prior to such damage or demolish and remove all
damaged Improvements and landscape the Premises. This Lease will not be
terminable by Tenant on account of casualty damage except during the last two
(2) years of the Initial Term or any extension thereof, at which time Tenant
will not be required to rebuild provided it instead razes the Improvements and
landscapes the area and Landlord receives the insurance proceeds related to such
casualty or damage. Notwithstanding any of the foregoing to the contrary, Tenant
shall be entitled to rebuild with its then current prototype design, provided
that any such prototype change is first approved by Landlord in its reasonable
discretion.
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11. EMINENT DOMAIN
11.1 Total Condemnation. If the whole of the Leased Premises shall be
acquired or condemned by eminent domain for any public or quasi-public use or
purpose, then the term of this Lease shall cease and terminate as of the date of
title vesting in such proceedings, and all rentals shall be paid up to that
date, and Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease, but such termination shall be without prejudice to
the rights of either party to receive compensation from the condemning
authority.
11.2 Partial Condemnation - Termination.If any part, but less than the
whole, of the Leased Premises shall be acquired or condemned by eminent domain
for any public or quasi-public use or purpose, and in the event that such
partial undertaking or condemnation either renders the Leased Premises
unsuitable for the business of Tenant, or affects more than twenty-five percent
(25 %) of the parking/paved area, or any part of the building, on the Leased
Premises, then Tenant shall have the right, in its reasonable discretion, to
terminate this Lease as of the date of title vesting in such proceedings, and
all rentals shall be paid up to that date. Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease, but such termination
shall be without prejudice to the rights of either party to receive compensation
from the condemning authority.
11.3 Partial Condemnation-Continuation. In the event of a partial taking or
condemnation that, in the reasonable opinion of Tenant, is not extensive enough
to render the Leased Premises unsuitable for the business of Tenant, the
recipients of the proceeds of condemnation shall promptly restore the Leased
Premises to a condition comparable to that at the time of such condemnation, to
the extent of the portion of such proceeds that is attributable to the building
and improvements on the Leased Premises; and this Lease shall continue in full
force and effect and the rental hereunder shall xxxxx in an equitable manner
based on the reduction in Tenant's ability to use the Leased Premises.
11.4 Award. Landlord and Tenant agree to request that the court in any
condemnation proceeding shall, if not prohibited by law, make separate awards to
Landlord and Tenant. This provision to the extent permitted by law shall be
construed as superseding any statutory provisions now in force or hereafter
enacted concerning condemnation proceedings. In the event such court cannot or
does not make separate awards to Landlord and Tenant, the award shall be divided
between Landlord and Tenant so that Tenant shall receive that portion of the
award which is attributable to the value of the Improvements reduced by the
value of Landlord's residual right to the reversionary interest therein upon
termination.
12. ASSIGNMENT AND SUBLETTING
12.1 Acquisition or Merger. Tenant may assign this Lease without Landlord's
consent to any corporation affiliated with Tenant, or to any corporation with
which or into which Tenant merges or consolidates, or to any corporation or
entity that acquires substantially all of the assets of Tenant's operation
within the State of Tennessee, as long as said corporation or entity has a net
worth equal to or greater than that of Tenant at the time of this Lease and so
long as Tenant remains primarily liable on the Lease.
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12.2 Assignment or Sublease. Except as provided herein, Tenant shall not
sublet or assign the Leased Premises without Landlord's prior consent, which
consent may be unreasonably withheld, conditioned or delayed in Landlord's
reasonable discretion.
12.3 Extension Term. If Tenant assigns this Lease as permitted herein and
the assignee of such assignment elects, pursuant to the terms of this Lease to
extend the Term hereof, then the Tenant shall cease to be primarily liable
hereon at the conclusion of the Base Term; provided; however, the Landlord shall
have the right, in its sole and absolute discretion, to consent to an extension
of the Term.
13. TENANT REPRESENTATIONS, WARRANTIES AND COVENANTS
Tenant represents, warrants and covenants to Landlord as follows: All of
the representations, warranties and covenants set forth in this Lease shall be
true upon the execution of this Lease, shall be deemed repeated at and as of the
Possession Date, and shall survive expiration or termination of this Lease.
13.1 Organization and Power. Tenant is a corporation duly organized,
validly existing and in good standing under the laws of the State of its
incorporation or formation and is qualified to transact business in the State
where the Leased Premises is located and has all requisite powers and all
material governmental licenses, authorizations, consents, ability and approvals
to perform its obligations hereunder.
13.2 Authorization, Execution and Disclosure. This Lease has been duly
authorized by all necessary action on the part of Tenant, has been duly executed
and delivered by Tenant, constitutes the valid and binding Lease of Tenant and
is enforceable in accordance with its terms, subject to the effect of applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar
laws affecting the rights of creditors generally. There is no other person or
entity whose consent is required in connection with Tenant's performance of its
obligations hereunder. The person executing this Lease on behalf of Tenant has
the authority to do so.
13.3 Tenant Compliance. Tenant shall comply with all laws, rules,
regulations, ordinances and orders, federal, state and local, that relate to or
may affect Tenant's use and occupancy of the Leased Premises or Landlord's
rights therein.
14.INDEMNITY
Indemnity by Tenant. Tenant shall defend, indemnify and hold harmless
Landlord from and against all losses, costs (including reasonable attorney fees
and court costs), claims, damages, liabilities and expenses, including all
expenses for remediation of environmental contamination to the Lease Premises,
where such losses, costs, claims, damages, liabilities, expenses or
environmental contamination results from or arises out of the occupancy and use
of the Leased Premises by Tenant, its employees, agents or contractors, except
any such loss, cost, claim, damage, liability, expense or contamination that
results from or arises out of the gross negligence or willful misconduct of
Landlord or Landlord's employees, agents or contractors. The obligations of
Tenant under this section shall survive any termination of this Lease and any
transfer or assignment by Landlord or Tenant of this Lease or any interest
hereunder
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15. DEFAULT AND REMEDIES
15.1 Events of Default. Each of the following occurrences shall constitute
an "Event of Default" by Tenant under this Lease: (a) Tenant fails to pay any
rental or other monetary amounts coming due hereunder within five (5) days after
the same is past due; (b) Tenant fails to perform any other of the terms,
conditions or covenants of this Lease to be observed and performed by Tenant
within twenty (20) days following Tenants receipt of written notice from
Landlord specifying the nature of such failure (or if the nature of such failure
is such that it cannot reasonably be cured or corrected within twenty (20) days,
Tenant fails to diligently commence the cure or correction of same within said
twenty (20) day period, and fails to diligently prosecute the curing or
correction until completed); and/or (c) Tenant becomes bankrupt or insolvent, or
files any debtor protection proceedings, or files or has filed against Tenant in
any court pursuant to any statute, either of the United States or of any state,
a petition in bankruptcy or insolvency or for reorganization, or Tenant makes an
assignment for the benefit of creditors or Tenant's interest hereunder or all of
its property on the Leased Premises is sequestered or taken under execution or
other legal process. No notice from Landlord shall be deemed to be a termination
of this Lease unless Landlord states in the notice that this Lease is
terminated.
15.2 Termination of Lease and Damages. Upon a default by Tenant, Landlord,
by notice to Tenant may terminate this Lease on a date specified in the notice
and may demand and recover possession of the Leased Premises from Tenant. Tenant
shall remain liable to Landlord for the following:
(a) The unpaid Rent earned at the time of termination of this Lease;
(b) The worth, at the time of the award, of the amount by which the unpaid
Rent that would have been earned after the date of termination of this Lease
until the time of award exceeds the amount of the loss of Rent that Tenant
proves could have been reasonably avoided; and
(c) The worth, at the time of the award, of the amount by which the unpaid
Rent for the balance of the Initial Term or the then current Extension Term
after the time of award exceeds the amount of the loss of Rent that Tenant
proves could be reasonably avoided;
(d) Any court costs and legal expenses reasonably incurred by Landlord as a
result of Tenant's default; and,
(e) Any and all costs associated with Landlord's reletting of the Leased
Premises, including but not limited to: reasonable leasing fees or commissions,
costs of advertising, costs of retrofitting the Leased Premises, etc.
The "worth at the time of the award," as used in subsection (b) of this
Paragraph is to be computed by allowing interest at seven percent (7%) per year.
The "worth at the time of the award," as used in subsection (c) of this
Paragraph is to be computed by discounting the amount at the discount rate of
the Federal Reserve Bank nearest to the Leased Premises at the time of the award
plus one percent (1%).
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15.3 Lease Not Terminated. Upon a default by Tenant this Lease will
continue in effect as long as Landlord does not terminate Tenant's right to
possession. While Tenant is in default, Landlord may enter and re-rent the
Leased Premises for Tenant's account, for such period, terms, and rent as are
reasonable. Tenant shall pay to Landlord the Rent due under this Lease on the
dates Rent is due, less the rent Landlord receives from any re-renting. The
Landlord shall use commercially reasonable efforts to re-rent the Leased
Premises. Notwithstanding anything contained herein, in the event of a default
by Tenant hereunder, Landlord shall be able to avail itself of all rights and
remedies at law or equity.
16. MISCELLANEOUS
16.1 Notices. Any notice, demand, request or other communication or
instrument that may be required or allowed to be given under this Lease shall be
(i) in writing and (ii) delivered in person or sent by United States Certified
Mail postage prepaid, return receipt required, or sent by a nationally
recognized overnight courier service, or by facsimile transmission (with a copy
of such facsimile sent by one of the other foregoing methods) to the addresses
and fax numbers shown below. Either party may designate another notice address
by notice to the other party, given in accordance with this Section. Notices are
effective on the earliest of the date received, the date of the delivery
receipt, or the third day after postmark, as applicable. Notice by a party's
attorney shall be deemed notice by such party.
LANDLORD Miko Investments, LLC
Attn: Mr. Xxxxxxx Xxxxx
0000-00 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 865-777.9508
With a copy to:
Xxxxx X. Xxxxxxxx
Suite F,
0000 Xxxxxxxx Xxxx, XX
Xxxxxxx, Xxxxxxx 00000
Tel: 000.000.0000
Fax: 000.000.0000
TENANT: Don Pablo's Operating Corp.
Avado Brands, Inc.
Xxxxxxx at Xxxxxxxxxx
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
cc: Xxxxxx X. Xxxxxxxx , Esquire
GravesSieffert, P.A.
000-X Xxxxx Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
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16.2 Time. Time is of the essence in this Lease. Reference to days in this
Lease, unless otherwise indicated, means consecutive calendar days including
weekends and holidays. In computing any period of time prescribed or allowed by
this Lease which begins to run on the Effective Date or any other specific date,
the Effective Date or other specific date is not to be included in computing
said time. The last day of the period so computed is to be counted, unless it is
a Saturday or Sunday or a state or federal holiday, in which event the period
runs until the end of the next day, which is neither a Saturday, Sunday or such
holiday.
16.3 No Partnership. Landlord does not in any way for any purpose become a
partner of Tenant in the conduct of its business or otherwise, or a joint
adventurer or a member of a joint enterprise with Tenant. Nothing in this Lease
shall be deemed or construed to create a relationship of principal and agent,
partnership or joint venture between Landlord and Tenant.
16.4 Amendment. This Lease may be changed only by a written amendment
executed by Landlord and Tenant.
16.5 Consents. Unless specified otherwise in the terms of this Lease,
whenever a party is asked to provide consent under this Lease, such party shall
not unreasonably withhold, condition, or delay giving the consent requested.
16.6 Partial Invalidity. If any term, covenant or condition of this Lease
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, then the remainder of this Lease, or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby; and each term, covenant or condition of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
16.7 Recording. Neither party shall record this Lease. The parties do,
however, hereby agree to join in the execution and delivery of a "Memorandum" of
this Lease for the purpose of recordation. Said Memorandum shall describe the
parties, the Leased Premises, including all appurtenances and easements (if
any), the Initial Term and the Lease Extensions, if any, the Possession Date and
the Commencement Date, and shall incorporate this Lease by reference.
16.8 Interpretation of Lease. This Lease shall be interpreted to give
effect to its fair meaning and shall be construed as though it was prepared by
both parties. This Lease contains the entire Lease of Landlord and Tenant, and
all prior negotiations, documents, and discussions are superseded by this Lease,
except for those covenants and terms which survive that certain real estate
purchase and sale agreement between Tenant and Landlord dated as of May __, 2003
for the Leased Premises. The invalidity of any provision of this Lease shall not
affect the validity of any other provision of this Lease. Paragraph headings in
this Lease are for convenience only and shall not be used in interpreting its
provisions. All terms and words used in this Lease, regardless of their number
or gender shall be deemed and construed to include any other number (singular or
plural) or any other gender (masculine, feminine or neuter), as the context of
this Lease or Section hereof may require. This Lease shall be interpreted in
accordance with the laws of the state in which the Property is located.
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16.9 References. All references to this Lease include reference to all
exhibits and amendments to this Lease. All references to the Due Diligence
Period, the Permitting Period or the date of Closing in this Lease include
references to all automatic extensions of same plus any extensions by Lease of
Landlord and Tenant. References to the Property include reference to all or a
part of the Property. References to Landlord or Tenant include, bind, and inure
to the benefit of, their officers, agents, employees, successors in interest and
permitted assignees.
16.10 Force Majeure. The time for performance of an obligation, other than
the payment of money, shall be extended for the period during which a party is
prevented from performing by the act or omission of the other party, acts of
God, weather, government, or other force or event beyond the reasonable control
of such party. The party claiming relief under this section shall give written
notice to the other party stating the specific act excusing the petitioning
party from performing and such notice must be delivered within ten (10) days of
the act.
16.11 Waiver. No right or remedy under this Lease will be waived unless the
waiver is in writing and signed by the party claimed to have made the waiver.
One waiver will not be interpreted as a continuing waiver nor deemed to be a
waiver of any subsequent breach of the same or of any other term, covenant or
condition hereof.
16.12 Attorneys' Fees. If an action is commenced to enforce any provision
of this Lease, the prevailing party as determined by a final court judgment
shall be entitled to recover from the other party such reasonable attorneys'
fees and costs incurred in the action as the court may award.
16.13 Successors and Assigns. This Lease and all of the covenants,
provisions and conditions herein contained will be binding upon and inure to the
benefit of the parties hereto and their successors and assigns.
16.14 Expiration of Offer. This offer from Tenant to Landlord shall expire
if not accepted and two (2) signed originals delivered to Tenant on or before
the tenth (10th) day after the date of execution by Tenant.
1.15 Counterparts. This Lease may be executed in two or more counterparts,
which when assembled, shall constitute one and the same Lease.
1.16 Holding Over. In the event Tenant shall hold the Leased Premises after
the expiration of a Term without the express written consent of the Landlord,
such holding shall be deemed to have created a tenancy from month to month
terminable on thirty (30) days' written notice by either party to the other,
upon a monthly rental basis, and otherwise subject to all terms and provisions
of this Lease, except such monthly rental shall be one hundred fifty percent
(150%) of the total monthly rental payable by Tenant to Landlord during the last
twelve month period of such Term.
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IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered, or
have caused their authorized representatives to execute and deliver, this Ground
Lease.
LANDLORD:
MIKO INVESTMENTS, LLC,
a Tennessee limited liability company
By: ____________________________________
Xxxxxxx Xxxxx,
Its: ________________
Date: _________________________________
TENANT:
Don Pablo's Operating Corp., an Ohio corporation
By: ____________________________________
Xxxxxxxx X. Xxxxxxx, President
Date: _________________________________
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