LEASE AGREEMENT
BY AND BETWEEN
AFTER OURS, LLC
AND
FAMILY STEAK HOUSES OF FLORIDA, INC.
DATED: JULY 12, 2002
0000 X. XXXXXX XXXXXX
XXXXX, XXXXXXX
LEASE AGREEMENT
This Lease Agreement (this "Lease") is made this 12th day of July, 2002
("Effective Date") by and between AFTER OURS, LLC ("Landlord"), whose address
for purposes hereof is 000 Xxxx Xxxx, Xxx Xxxx, Xxxxxxx 00000, and whose federal
tax identification number is 00-0000000, and FAMILY STEAK HOUSES OF FLORIDA,
INC. ("Tenant"), whose address for purposes hereof is 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxx Xxxxx, Xxxxxxx 00000.
1. DESCRIPTION OF PREMISES. Landlord leases to Tenant that certain parcel
of land located at 0000 X. Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx, together with all
improvements located thereon, and together with the Landlord's right to use
certain adjacent lands for vehicular parking, said land and parking rights being
more particularly described in Exhibit "A" attached hereto (the "Premises").
2. LEASE TERM . The term of this Lease shall be for a period of twenty
(20) years (the "Term") or until such Term shall sooner cease and expire as
hereinafter provided. The Term shall commence on July 12, 2002 (the
"Commencement Date") and shall expire at midnight on July 11, 2022. If, for any
reason, Tenant discontinues the use of the Property for the purposes rented or
any purpose, Tenant shall still remain liable for the performance of the terms
of this Lease and the payment of the rental hereunder.
3. USE. The Premises may be used for the operation of a restaurant
offering seated dining and uses ancillary thereto, and for no other purposes
without Landlord's written consent, which consent shall not be unreasonably,
withheld, conditioned or delayed.
4. RENT. The "Rent Commencement Date" shall be the Commencement Date.
Subject to adjustments as set forth herein, Tenant agrees to pay, as base annual
rent for the use of the Leased Premises, each year during the first five years
of the term hereof, the sum of $330,000.00 ("Rent" or "Base Rent"), plus
applicable sales tax, which shall be payable in twelve (12) equal monthly
installments of $27,500.00 as set forth on the Rent Schedule attached hereto as
Exhibit B. All payments due under this Lease shall be paid monthly in advance on
or before the first (1st) day of each month (the "Due Date") without reduction,
abatement or set-off (except when and as specifically provided herein), and
shall be mailed or delivered to Landlord's office at the address above (or at
such other address for the payment of rent that Landlord may give notice of to
Tenant). Any payment due and not paid within five (5) days of the Due Date shall
bear interest retroactive from the Due Date at a rate of twelve percent (12%)
per annum until paid. In addition, the Tenant shall pay Landlord a late payment
penalty in an amount equal to five
percent (5%) of the delinquent payment. If the Rent Commencement Date is other
than the first day of a calendar month, the rent for the portion of said month
shall be prorated at a daily rate based upon the base monthly rent, and shall be
payable on the Rent Commencement Date.
5. RENT ESCALATION. The annual Rent to be paid to Landlord by Tenant
shall be increased as described in Exhibit B.
6. SERVICES. Tenant shall pay before delinquency, at its sole cost and
expense, all charges for water, gas, heat, electricity, power, telephone
service, sewer service charges, and sewer rentals charged or attributable to the
Premises, and all other services or utilities used in, upon, or about the
Premises by Tenant or any of its subtenants, licensees, or concessionaires from
the Commencement Date and throughout the lease term hereof.
7. CARE AND MAINTENANCE OF PREMISES, ACCESS. Tenant shall be solely
responsible for the maintenance, repair, and replacement of the Premises
throughout the term of this Lease, including, but not limited to, the
maintenance, repair, and replacement of all improvements located on the
Premises, including the roof and structural components thereof, all plumbing,
electrical, heating, ventilation and air conditioning systems therein, and all
other improvements to the Premises, such as the asphalt paving and concrete
curbing of the parking areas and driveways, and the landscaping located on the
Premises. All of the improvements upon the Premises shall be maintained in
substantially the same condition throughout the lease term as existed on the
Effective Date of this Lease, ordinary wear and tear excepted. Landlord shall
have no responsibility whatsoever for any maintenance, repair, replacement of
the Premises or any improvements located thereon unless such is made necessary
due to the gross negligence or willful act of the Landlord.
Tenant agrees to observe and comply with all laws, ordinances, rules and
regulations of the Federal, State, County, Municipal authorities and regulations
of the Board of Fire Underwriters applicable to the Property and to the business
to be conducted by Tenant in the Property.
The Landlord shall at all reasonable times have access to the Property for
the purposes of examining the same, or for the purpose of showing the Property
to prospective purchasers or lessees; and for a period of at least twelve (12)
months prior to the expiration of the Lease or any renewal thereof, shall have
the right to post a sign on the front of the Property offering the same "To Let"
or "For Sale", which said sign the Tenant shall permit to remain without
molestation.
8. SIGNAGE
(a) SIGNS. Landlord and Tenant agree that throughout the Term and any
Renewal Terms of this Lease, Tenant and its permitted subtenants, and assignees
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may erect, maintain, repair and replace any and all signs which the Tenant and
its permitted subtenants, and assignees may desire from time-to-time on the
Premises including, without limitation, building, pylon and monument signs, so
long as (i) such signs comply in all respects and at all times with applicable
codes, ordinances, laws and statutes concerning the same, and (ii) the Tenant
and its permitted subtenants, and assignees has at its expense obtained all
necessary governmental licenses, permits, and approvals for such signs. All such
signs shall be maintained in good condition and repair at all times.
9. RENEWAL OPTION. Provided Tenant has not been in material default
hereunder beyond applicable cure periods, this Lease may be renewed by Tenant
for up to two (2) successive, five (5) year terms (the "Renewal Term(s)"), if
Tenant shall give written notice of renewal to Landlord at least twelve (12)
months prior to the end of the then-current term. Each Renewal Term shall be
subject to the same terms and conditions as the initial Term, except that Tenant
shall pay to Landlord the Base Rent provided for in Exhibit "B" of this Lease.
10. SUBLEASE AND ASSIGNMENT. Tenant shall not have the right to assign
this Lease and/or sublease all or any portion of the Premises without Landlord's
prior written consent, such consent not to be unreasonably conditioned, delayed,
or withheld. Concurrently with any request for Landlord's consent Tenant shall
pay to Landlord the sum of $750.00 for Landlord's review and processing of such
request, and Landlord shall not be obligated to review such request prior to its
receipt of the foregoing fee. Notwithstanding the foregoing, however, a change
in the ownership or control of the Tenant shall not be deemed an assignment of
this Lease for the purposes of this paragraph. In addition, in the event the
Tenant elects to sell fifty percent (50%) or more of its assets, it shall have
the right to assign this Lease in connection with such sale without the consent
of the Landlord. In the event of a permitted subletting or an assignment of this
Lease, Tenant shall not be released from liability hereunder. Consent by
Landlord to an assignment or subletting shall not be deemed consent to any
further assignment or subletting; the restrictions set forth in this paragraph
10 shall apply to any assignee or sublessee of Tenant.
11. ALTERATIONS BY TENANT. All additions, alterations, improvements and
fixtures (except Tenant's movable trade fixtures and signage) in or upon the
Premises, whether placed there by Tenant or by Landlord, shall become Landlord's
property and shall remain upon the Premises at the termination of this Lease by
lapse of time, or otherwise, without compensation or allowance or credit to
Tenant. After the Commencement Date, Tenant shall not make additions, changes,
alterations or improvements to the Premises costing more than $150,000.00 in the
aggregate, without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed. Even if Landlord's consent
is not required, Tenant shall give Landlord prior written notice specifying any
work to be done. If Landlord grants its consent, Landlord may impose reasonable
requirements as a condition of such consent including without limitation the
submission of plans and specifications for Landlord's
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prior written approval, obtaining necessary permits, obtaining insurance, prior
approval of contractor (not to be unreasonably withheld) and reasonable
requirements as to the manner and times in which such work shall be done. All
work shall be performed in a good and workmanlike manner and shall be in
accordance with plans and specifications, (approved by Landlord if approval is
required by the above provisions) and shall be made in accordance with all
applicable laws, ordinances, and codes. If any of such work may affect the
structure of the Building or interfere with Building systems or operation,
Landlord may require that such work be performed under Landlord's supervision
(but at no additional cost to Tenant for such supervision). Notwithstanding the
foregoing, upon expiration of the Term or earlier termination of the Lease,
Tenant may remove all of its personal property, furniture and trade fixtures
from the Premises, repair any damage caused to the Premises by such removal.
Such repairs shall be done in a good and xxxxxxx like manner consistent with all
applicable laws, rules and regulations. Tenant shall make such alterations to
the Premises to keep same in compliance with all applicable laws, rules and
regulations, including, without limitation, the Americans With Disabilities Act.
In the event that any governmental authority directs any modification or
alteration to the Property as the result of Tenant's occupancy, Tenant shall pay
for the cost of such modification or alteration.
12. CONSTRUCTION LIEN. In no event shall Tenant have the right or
authority to create, or permit there to be established, any contractor's,
mechanic's, materialmen's or other lien or encumbrance of any nature against
Landlord's interest in the Premises or the Building for improvements made or
caused to be performed by and at the request of Tenant. Any lien filed by any
contractor, materialman or supplier performing work requested by and for Tenant
shall attach only to Tenant's interest in the Premises for work claimed to have
been furnished for Tenant. Tenant shall, within 20 business days after Tenant
receives notice of the filing of any lien for such work, duly discharge the lien
or contest such lien by posting a bond equal to the amount of the disputed claim
with companies reasonably satisfactory to Landlord. In the event that such lien
is not released and removed or bonded within 20 business days after Tenant has
received notice thereof, Landlord, at its sole option, may take all action
necessary to release and remove or bond such lien (without any duty to
investigate the validity thereof) and Tenant shall promptly upon notice
reimburse Landlord for all reasonable sums, costs and expenses (including
reasonable attorneys' fees) incurred by Landlord in connection with such lien.
13. HAZARDOUS SUBSTANCES. Tenant shall not bring upon or permit to be
brought upon the Premises any Hazardous Substances, except normal office
supplies. Tenant shall not use the Premises for the manufacture, storage,
disposal or handling of any Hazardous Substances, and Tenant shall indemnify and
hold harmless Landlord from and against any and all loss, claim, damages,
liability, cost or expense, including reasonable attorney's fees actually
incurred at customary hourly rates, court costs and remediation costs and
expenses incurred by Landlord arising from or relating to (i) Tenant's violation
of the terms of this paragraph, and (ii) any other environmental contamination
of the Premises, including, without limitation, the costs of remediation.
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The indemnification described herein shall survive the expiration or other
termination of Tenant's leasehold interest in the Premises.
Tenant further agrees at all times during the term hereof, and upon the
termination of the terms hereof, Tenant shall comply with all applicable
environmental protection laws, rules or requirements, and shall promptly cure
all violations thereof arising from its non-compliance, including but not
limited to the preparation, delivery and/or filing with the applicable
governmental authorities and with the Landlord, of all forms, certificates,
notices, documents, plans and other writings, and the furnishing of such other
information as may be required or requested by the Landlord, its mortgagee or
any applicable governmental authority in connection with the sale, lease,
transfer, mortgaging or other disposition of the building and/or lands. It is
specifically acknowledged and agreed that the provisions of this paragraph shall
survive the termination of this Lease, regardless of the reason or cause
thereof.
14. QUIET ENJOYMENT. Landlord covenants and agrees, provided Tenant pays
all Rent and performs the terms and conditions of this Lease as and when
required, to take all necessary steps to secure to Tenant and to maintain for
the benefit of Tenant the quiet and peaceful possession and enjoyment of the
Premises and all rights appurtenant thereto, for the term hereof, without
disturbance, hindrance or molestation by Landlord or any other person claiming
title to the Premises or any part thereof by through or under Landlord, and
Landlord warrants and forever agrees to defend Tenant's interest under this
Lease against the claims of any and all persons claiming title to the Premises
or any part thereof by through or under Landlord.
15. INSURANCE. At all times during the Term of this Lease and any renewals
thereof Tenant shall obtain and thereafter keep in full force and effect:
(i) commercial general liability insurance, such insurance to insure
against liability for bodily injury and death and for property damage
in an amount not less than $2,000,000 combined single limit on a per
occurrence basis; further Tenant shall also maintain at all times
during this lease an umbrella insurance policy in an amount not less
than $10,000,000.
(ii) workmen's compensation as required by law providing statutory
benefits for all persons employed by Tenant in connection with the
Premises,
(iii) builder's risk insurance during all periods in which Tenant is
constructing alterations or additions to or within the Premises, in
reasonable amounts, and
(iv) casualty insurance coverage on the improvements located on the
Premises for the full replacement cost thereof, and with a deductible
of not more than $10,000.00. All insurance that Tenant shall be
required to
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effect pursuant to this provision shall be underwritten by insurance
companies that are licensed or authorized to do business in and shall
be in good standing with the State of Florida and rated A or better by
AM Best and Company or its equivalent. All insurance contracts that
Tenant is required to maintain under this Lease shall be issued for
terms of not less than one year and shall contain a provision that
they shall not be subject to cancellation, non-renewal or material
reduction in coverage as to the Premises unless Landlord shall be
served with a written notice not later than 30 days prior to
cancellation, non-renewal or material reduction in coverage; for
purposes of the foregoing, "material reduction in coverage" shall mean
change from "all-risk" casualty insurance coverage, or a material
increase in deductible.
16. INDEMNIFICATION/HOLD HARMLESS. Landlord, its partners,
representatives, agents, and their respective officers and employees, shall not
be liable to Tenant, or to Tenant's officers, directors, shareholders, agents,
servants, employees, customers or invitees, for any damage to person or property
in or about the Premises caused by any act, omission or neglect of Tenant and
its agents and their respective officers, directors, shareholders, and
employees, and Tenant agrees to indemnify and hold harmless Landlord from all
claims for any such damage. Tenant and its agents and their respective officers,
directors and shareholders and employees shall not be liable to Landlord or to
Landlord's partners, representatives, agents, servants, customers, or invitees
and their respective officers and employees for any damage to person or property
caused by any act, omission or neglect of Landlord, its partners,
representatives and agents and their respective officers and employees and
Landlord agrees to indemnify and hold harmless Tenant from all claims for any
such damage.
The Tenant further covenants and agrees with the Landlord that during the
term of this Lease and for such other times as the Tenant shall hold or have
access to the Property, that, (a) the Landlord and its affiliates shall not be
liable to the Tenant or to any other person for any claim, injury, loss or
damage to any person or property on or about the Property, and (b) the Tenant
will save the Landlord harmless and indemnified from and against such claim,
injury, loss or damage (including defense costs).
17. DAMAGE BY FIRE OR OTHER CASUALTY.
(a) DAMAGE. If fire or other casualty insurable under a standard fire and
extended risk policy of insurance required to be carried by Tenant covering the
Premises shall render the whole or any material portion of the Premises
untenantable, and if the Premises can reasonably be expected to be reparable
within one hundred eighty (180) days from the date of such event, then Tenant
shall repair and restore the Premises to their condition prior to the fire or
other casualty within such one hundred eighty (180) day period (subject to
delays for causes beyond Tenant's reasonable control such as delays due to
issuance of building permits or obtaining of insurance proceeds provided Tenant
diligently pursues the same) and notify Landlord in writing that it will be
doing
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so, such notice to be mailed within thirty (30) days from the date of such
damage or destruction, and this Lease shall remain in full force and effect, but
the Minimum Rent, Additional Rent and other costs for the period during which
the Premises are untenantable shall not be abated. At all times during the term
of this Lease, Tenant shall carry business interruption insurance.
(b) REPAIR AND RESTORE. Tenant shall repair and restore the Premises as
the case may be to its condition prior to the damage or destruction within that
time period reasonably necessary for such repair and restoration (subject to
delays for causes beyond Tenant's reasonable control such as delays due to
issuance of building permits or obtaining of insurance proceeds provided Tenant
diligently pursues the same) and the Minimum Rent, Additional Rent and other
costs shall not be abated during the period of such restoration and/or repair.
18. CONDEMNATION.
(a) TOTAL TAKING. If all the Premises are taken by the power of eminent
domain exercised by any governmental or quasi-governmental authority, this Lease
shall terminate as of the earlier of:
(i) the date Tenant is required to vacate the Premises, or
(ii) the date title passes to the condemning authority, and upon
either such date of termination, all Minimum Rent, Additional Rent,
and other costs due hereunder shall be paid to that date. The term
"eminent domain" shall include the taking or damaging of property by,
through, or under any governmental or quasi-governmental authority,
and any purchase or acquisition in lieu thereof, whether or not the
damaging or taking is by the government or any other person.
(b) PARTIAL TAKING. Tenant may terminate this Lease upon nine (9) months
prior written notice to Landlord for any of the following events of Partial
Taking:
(i) If more than fifteen percent (15 %) of the Rentable Square Feet of
Floor Area of the Premises shall be taken or appropriated;
(ii) The Premises, after the taking, would no longer satisfy the
requirements for a restaurant offering seated dining (based on
Tenant's standard restaurant requirements in Tenant's reasonable
business judgment);
(iii) The access to the Premises is materially adversely affected;
(iv) The visibility of the Premises is materially adversely affected;
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(v) The parking available to the Premises is materially adversely
affected, whether modified or reduced; or
(vi) If Tenant's business will otherwise be materially adversely
affected.
(c) DAMAGES. Landlord reserves all rights to the entire damage award or
payment for any taking by eminent domain. Tenant shall, however, have the right
to claim from the condemning authority all compensation that may be recoverable
by Tenant on account of any loss incurred by Tenant, including, but not limited
to, loss due to removing Tenant's merchandise, furniture, trade fixtures, and
equipment or for damage to Tenant's business, loss of business, and/or loss of
leasehold interest; provided, however, that Tenant may claim such damages only
if they are awarded separately in the eminent domain proceeding and not as part
of Landlord's damages.
19. FORCE MAJEURE. If either Landlord or Tenant is delayed or prevented
from completing the performance of any obligation under this Lease by reason of
accident, fire, act of God, public enemy, injunction, riot, strike, lockout,
insurrection, war, court order, requisition or order of governmental body or
authority, inability to procure labor or materials from normally available
sources, or by any other cause without its fault and beyond its reasonable
control (financial inability excepted), completion will be excused for the
period of such delay and the date for completion will be extended for the period
of such delay provided notice of the occurrence or encountering of such cause is
given to the other party within 10 days after such occurrence or encounter and
notice of the duration of such cause is given with 10 days after the cessation
of such cause.
20. SUBORDINATION/NON-DISTURBANCE. Tenant agrees that this Lease is
subject and subordinate to all mortgages which may now or hereafter affect or
encumber all or any portion of the property and to all renewals, modifications,
consolidations, replacements and extensions thereof; provided, however, that the
foregoing provision shall only be applicable with respect to those mortgages to
which Tenant has been provided a Subordination, Non-Disturbance and Attornment
Agreement substantially in the form attached as Exhibit C ("Non-Disturbance
Agreement"), or in such other from as may be reasonably requested by Landlord's
lender(s), providing generally that the mortgagee or any purchaser at the
foreclosure of the mortgage will not disturb Tenant's possession of the Premises
and that Tenant will attorn to such mortgagee or purchaser at foreclosure as
Landlord under the terms and conditions of this Lease upon receiving written
notice that such party has succeeded to the interest of Landlord under this
Lease. In confirmation of such subordination, Tenant shall join with any such
mortgagee and execute promptly (and, in any event, within 15 days after receipt
of a written request therefor) a Non-Disturbance Agreement. Tenant's obligation
to join with any mortgagee in the execution of a Non-Disturbance Agreement shall
be applicable with respect to all present and future mortgages to which Landlord
requests Tenant's execution of a Non-Disturbance Agreement.
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21. ESTOPPEL CERTIFICATE. Landlord and Tenant agree that they will from
time to time upon request from each other, within 15 business days after notice
from the other, execute and deliver to such persons as the requesting party
shall request, a statement certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as so modified), stating the dates which rent and other charges
payable under this Lease have been paid, stating the commencement and
termination dates of the current term of the Lease and stating whatever options
to extend there may be in the Lease, stating that Landlord or Tenant, as
applicable, is not in default hereunder to the best of such party's knowledge
after due inquiry (or if Landlord or Tenant, as applicable, have alleged a
default, stating the nature of such alleged default), and further stating such
other matters relating to the Lease as the requesting party shall reasonably
require.
22. LANDLORD DEFAULT. Landlord's failure to perform any of its obligations
under this Lease for a period of 15 days after receiving notice from Tenant is a
"Default." The notice from Tenant shall give in reasonable detail the nature and
extent of the failure.
If Landlord commits a Default, Tenant, in addition to any remedies
available under the law, may, without being obligated and without waiving the
Default, cure the Default. Landlord shall pay Tenant, upon demand, all costs,
expenses, and disbursements reasonably incurred by Tenant to cure the Default.
It is understood and agreed that Tenant's exercise of any right or remedy
to a default or breach by Landlord shall not be deemed a waiver of or to alter,
affect, or prejudice any right or remedy which Tenant may have under this Lease
or by law or in equity. Neither the payment of rent nor any other act or
omission of Tenant at any time or times shall operate as a waiver of any past or
future violation, breach, or failure to keep or perform any covenant, agreement,
term, or condition hereof, or to deprive Tenant of its available remedies, upon
the written notice provided for herein.
23. TENANT DEFAULT.
(a) It shall be a default ("Event of Default") hereunder if:
(i) Tenant shall fail to pay any rent or any other sums of money
within 5 days after receipt of written notice that the same is due;
provided, however, Landlord shall not be obligated to give Tenant
written notice of nonpayment of rent more than two (2) times in any
twelve (12) month period.
(ii) Tenant shall fail to comply with any other provision of this
Lease and after receipt of written notice, fail to correct any default
within 30 days after written notice or if such compliance cannot
reasonably be corrected within such 30 day period, then Tenant shall
not be deemed in
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Default if Tenant commences such cure within 20 days of said written
notice and diligently pursues same to completion.
(iii) the Premises shall be taken on execution or other process of law
in any action against Tenant;
(iv) Tenant shall become insolvent or unable to pay its debts as they
become due, or Tenant notifies Landlord in writing that it anticipates
either condition;
(v) Tenant takes any action, or notifies Landlord in writing that
Tenant intends, to file a petition under any section or chapter of the
Bankruptcy Code as amended, or under any similar law or statute of the
United States or any State thereof; or a petition shall be filed
against Tenant under any such statute which is not dismissed within 60
days after the filing thereof; or
(vi) a receiver or trustee shall be appointed for Tenant's leasehold
interest in the Premises or for all or a substantial part of the
assets of Tenant and not discharged within 60 days after the
appointment of a receiver or trustee.
(b) On the occurrence of any Event of Default and after the applicable
notice and cure period, and subject to terms and conditions provided herein,
Landlord may;
(i) without terminating this Lease and without entering into
possession of the Premises, continue this Lease in effect and enforce
all rights of Landlord and obligations of Tenant hereunder, including
the filing of suit for the collection of monthly rent, Operating
Expenses, and all other sums due hereunder as they accrue (including
attorneys' fees and other damages). Acts of maintenance or
preservation, efforts to relet the Premises, or the appointment of a
receiver upon Landlord's initiative to protect its interest under this
Lease shall not constitute a termination of this Lease or Tenant's
right to possession hereunder;
(ii) re-enter and repossess the Premises subject to notice to and the
rights of the FDIC and any other regulatory or governmental agency
having regulatory authority over Tenant and any and all improvements
thereon and additions thereto and remove all persons and property
therefrom either by summary dispossess proceedings or by a suitable
action or proceeding at law or in equity, or by force or otherwise,
without being liable for any damage therefor. No re-entry by Landlord
shall be deemed a termination or an acceptance of a surrender of this
Lease;
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(iii) Terminate this Lease and xxx Tenant for damages hereunder which
damages shall be an amount equal to:
(a) the sum of all amounts due hereunder to the date of
termination; plus
(b) the aggregate rent remaining over the unexpired portion of
the Term plus the reasonable cost to Landlord for any repairs and
other costs of reletting, all reduced to present value using a
discount rate equal to the interest rate of a governmental
security having a maturity closest to the then current expiration
of the Term; less
(c) the aggregate fair net rental value of the Premises over the
remaining portion of the Term provided, however, a reasonable
period of time, not to exceed twelve (12) months, may be
considered as a leasing period by which the Premises would not be
leased and therefor no income would be realized for such period
reduced to present value; plus
(d) Landlord's costs and expenses incurred in the enforcement
hereof including reasonable attorneys fees as herein provided;
(iv) relet any or all of the Premises for Tenant's account for any or
all of the remainder of the Term or for a period exceeding such
remainder, in which event Tenant shall pay to Landlord, at the times
and in the manner specified by the provisions herein the rent accruing
during such remainder, less any rent received by Landlord, with
respect to such remainder, from such reletting, as well as the cost to
Landlord of any reasonable attorney's fees actually incurred at
customary hourly rates, or for any repairs or cost of reletting or
other action (including those taken in exercising Landlord's rights
under any provision of this Lease ) taken by Landlord on account of
such Event of Default, but in no event shall Landlord be liable in any
respect for failure to relet the Premises after good faith efforts to
do so or in the event of such reletting, for failure to collect the
rent thereunder. Any sums received by Landlord on a reletting in
excess of the rent reserved for this Lease shall belong to Landlord;
(v) cure such Event of Default in any other manner (after giving
Tenant written notice of Landlord's intention to do so except in the
case of emergency), in which event Tenant shall reimburse Landlord for
all expenses reasonably incurred by Landlord in doing so (plus 10% of
such expenses to cover Landlord's administrative costs and expenses,
plus interest on all of the foregoing at the rate of twelve percent
(12%) per
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annum, which expenses and interest shall be additional rent and shall
be payable by Tenant immediately on demand therefor by Landlord;
and/or
(vi) pursue any combination of such remedies and/or any other remedy
available to Landlord on account of such Event of Default at law or in
equity.
If legal proceedings are instituted hereunder, and a compromise or
settlement thereof shall be made, it shall not be constituted as a waiver of any
subsequent breach of any covenant, condition or agreement herein contained.
All such remedies of Landlord shall be cumulative, and in addition,
Landlord may pursue any other remedies that may be permitted by law or in
equity. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
a waiver of such default.
24. HOLDING OVER. In the event of holding over by Tenant without
Landlord's written consent Tenant shall pay rent equal to 150% of the applicable
rent plus other sums due from time to time hereunder. Possession by Tenant after
the expiration of this Lease shall not be construed to extend its Term.
25. NO OFFER. The submission of this Lease by either party to the other
for review shall not be considered an offer to enter into this Lease and such
submission shall not bind either party in any way until both Landlord and Tenant
have each executed and delivered duplicate originals of this Lease.
26. NO CONSTRUCTION AGAINST DRAFTING PARTY. Landlord and Tenant
acknowledge that each of them and their respective counsel have had an
opportunity to review this Lease and that this Lease shall not be construed for
or against either party merely because such party prepared or drafted this Lease
or any particular provision thereof.
27. SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstance shall to any extent be or become illegal,
invalid or unenforceable, the remaining provisions of this Lease, or the
application of such provision to other persons or circumstances, shall not be
affected thereby and each remaining provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
28. TIME OF THE ESSENCE. Except as otherwise expressly provided herein,
time is of the essence with respect to all required acts of Tenant and Landlord
and each provision of this Lease.
29. BROKERAGE COMMISSIONS. Landlord and Tenant warrant and represent that
they have not dealt with any real estate broker or salesman in connection with
this
12
Lease except Florida Growth Realty, Inc., and Tenant shall be solely responsible
for the payment of any fees or commissions due. Landlord and Tenant further
represent they have dealt with no other person which would create any liability
for the payment of a commission by the other party. The party who breaches this
warranty shall defend, hold harmless, and indemnify the non-breaching party from
any claims or liability arising from the breach.
30. AUTHORITY TO EXECUTE LEASE. Tenant represents and warrants that this
Lease has been duly authorized, executed and delivered by and on behalf of
Tenant and constitutes the valid, binding, and enforceable agreement of Tenant
in accordance with the terms hereof. Landlord represents and warrants that
Landlord is the owner of fee simple title to the property on which the Premises
is located, this Lease has been duly authorized, executed and delivered by and
on behalf of Tenant, and constitutes the valid, binding and enforceable
agreement of Landlord in accordance with the terms hereof.
31. NOTICES. All notices, demands, consents and approvals which may be or
are required to be given by either party to the other hereunder shall be in
writing and shall be deemed to have been fully given and received upon actual
delivery (or refusal to accept delivery) to the address of all parties
designated to receive notice as set forth below or to such other place as the
party to be notified may from time to time designate by at least 10 business
days notice to the other parties. Notices, demands, consents and approvals shall
be deemed properly given only by: (a) personal delivery; or (b) sent by Federal
Express or other nationally-recognized overnight delivery service; or (c)
deposit in the United States mail certified, return receipt requested with
postage prepaid. Until changed in the manner set forth above, the addresses for
notice are as follows:
If to Landlord: After Ours, LLC
000 Xxxx Xxxx
Xxx Xxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 305-293-0518
with copy to: Xxxxxxx & Xxxxxxx, P.A.
Attention: Xxxx X. Xxxxxxx, Esquire
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to Tenant: Family Steak Houses of Florida, Inc.
Attention: Xx. Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
13
With a copy to Xxxxxx & Lane, P.A.
Attention: Xxxxxx X. Xxxx, III, Esquire
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
32. ENTIRE AGREEMENT. This Lease contains the entire agreement between the
parties hereto with respect to its subject matter and negotiations relating
thereto, and supersedes all previous letter agreements. This Lease may be
amended only by subsequent written agreement between the parties. Except for
those that are set forth in this Lease, no representations, prior written or
oral promises, warranties or agreements made by Landlord or Tenant shall be
applicable to this Lease.
33. GOVERNING LAW. This Lease shall be governed by and shall be construed
and interpreted in accordance with the laws of the State of Florida.
34. ATTORNEY'S FEES/COLLECTION COSTS. In the event Tenant or Landlord
defaults in the performance of any of the terms, covenants, agreements or
conditions contained in this Lease or in the event Landlord places the
enforcement of this Lease for the collection of any Rent due or to become due,
or the recovery of possession of the Premises in the hands of an attorney, or in
the event either party files suit against the other, with respect to the
enforcement of its rights under this Lease, Tenant and Landlord agree that the
prevailing party shall be entitled to be reimbursed by the non-prevailing party
for all reasonable attorney's fees, expert witness fees, paralegal fees and
court costs incurred by the prevailing party. All costs charged to or incurred
by Landlord in the collection of any amounts owed pursuant to this Lease,
including reasonable attorney's fees and court costs, shall be paid by Tenant;
and, at the option of Landlord, shall be deemed to be additional rent hereunder
and shall be due from Tenant to Landlord on the first day of the following
month.
35. PROPERTY TAXES AND ASSESSMENTS. Tenant shall pay on or before when due
all real property taxes and assessments or governmental impositions in lieu
thereof, be they special or otherwise of every kind and nature (including
without limitation, assessments for public improvements or benefits whether or
not commenced during the term of this Lease), water, sewer and other rents,
rates and charges, excises, levies, license fees, permit fees and other
authorization fees, public dues and all other charges (in each case whether
general or special, ordinary or extraordinary, or foreseen or unforeseen), of
every character (including all penalties or interest thereof, if incurred due to
Tenant's late payment), which at any time during or in respect of the term of
this Lease may be assessed, levied, confirmed, or imposed on or in respect of or
be a lien upon, or measured by the value or amount of (a) the Property or any
part thereof, including any personal property, any rent therefrom or any estate,
right or interest therein, or (b) any occupancy, use or possession of the
Property or any part thereof other than any franchise,
14
capital stock or similar tax of Landlord, or any income or excess profit tax of
Landlord or portion thereof determined on the basis of its general income or
revenues shall not be considered real estate taxes ("Taxes"). Landlord reserves
the right to have Tenant establish a tax escrow with Landlord. In such event
Tenant shall pay to Landlord a monthly amount reasonably determined by Landlord
to cover the next tax xxxx. If at any time there is a shortfall in said account
Tenant shall pay such shortfall to Landlord within ten (10) days of demand
therefore. Taxes for any partial year of the Lease term or any extension term
shall be prorated.
36. RADON GAS. Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risk to persons who are exposed to it over time. Levels of radon that exceed
Federal and State Guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
37. CONFIDENTIALITY. Each party hereto agrees not to disclose the economic
terms of this Lease except as each party respectively determines to be necessary
for the conduct of its business. Neither party shall issue any press releases
pertaining to this Lease or containing the economic terms of this Lease without
the prior written consent of the other party.
38. NUMBER OF EXECUTION COPIES. This Lease may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument.
39. MEMORANDUM OF LEASE. Neither Landlord nor Tenant shall permit, allow
or cause this Lease, or any amendment hereto, to be recorded in any public
registry or office of register of deeds; however, at the request of either
party, Landlord and Tenant agree to execute a recordable memorandum of this
Lease setting forth the names and addresses of the parties, a reference to the
lease with its date of execution, a specific legal description of the Premises,
the actual Commencement Date of the Lease, the term of the Lease, any renewal
Terms, which memorandum may be recorded by Tenant at Tenant's expense or by
Landlord at Landlord's expense in the appropriate public records of the county
or counties in which the Premises is situated.
40. WAIVER OF THE RIGHT TO TRIAL BY JURY. Landlord and Tenant hereby
knowingly and intentionally waive the right to trial by jury in any action or
proceeding that Landlord or Tenant may hereinafter institute against each other
with respect to any matter arising out of or related to this Lease or the
Premises.
41. COVENANT AGAINST WITHHOLDING RENTAL. Notwithstanding any other
provisions contained in this Lease or any extensions, modifications or renewals
thereof, it is understood and agreed that in the event of default in performance
of any agreement, condition, or other provisions to be performed by the
Landlord, or if for any other reason
15
Tenant might be entitled to any reimbursement from Landlord, in no event shall
Tenant deduct or withhold any such amount from rental payments due Landlord
pursuant to the rental provision of this Lease.
42. MONTHLY RENTAL STATEMENTS. The Landlord shall not be required to send
to Tenant monthly statements for rentals due or to become due under the terms
and conditions of this Lease. However, past due reminders shall be considered
notice under paragraph 23.(a)(i) hereunder.
43. PARTIAL INVALIDITY. If any term or provision of this Lease or the
application thereof to any party or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to parties or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
44. RETURNED CHECKS. For a check sent in full or partial payment of any
amounts owed pursuant to this Lease, or any rider thereto or modification
thereof, which is not honored because of insufficient funds, uncollected funds
or any other reason, there will be assessed a charge of $50.00 and all
subsequent payments shall be made by cash, bank draft, certified check or money
order.
45. DEFINITION OF AND LIABILITY OF LANDLORD. The term "Landlord" as used
in this Lease means only the owner for the time being of the Property or the
owner of a leasehold interest in the Property so that in the event of sale of
the Property or an assignment of this Lease, or a demise of the Property,
Landlord shall be and hereby is entirely freed and relieved of all obligations
of Landlord hereunder and it shall be deemed without further agreement between
the parties and such purchaser(s), assignee(s) or lessee(s) that the purchaser,
assignee or lessee has assumed and agreed to observe and perform all obligations
of Landlord hereunder. It is specifically understood and agreed that there shall
be no personal liability of Landlord in respect to any of the covenants,
conditions or provisions of this Lease. In the event of a breach or default by
Landlord of any of its obligations under this Lease, Tenant shall look solely to
the equity of Landlord in the Property for the satisfaction of Tenant's
remedies.
46. WAIVER OF COVENANT OR CONDITION. The failure of Landlord to insist
upon strict performance of any of the covenants or conditions of this Lease or
to exercise any option herein conferred in any one or more instances shall not
be construed as a waiver or relinquishment for the future of any such covenants,
conditions or options, but the same be and remain in full force and effect.
16
IN WITNESS WHEREOF, the parties hereto have duly executed multiple
counterparts of this Lease in their respective names by their respective
authorized representatives, effective as of the date set forth above.
LANDLORD:
AFTER OURS, LLC
_______________________________ By: _______________________________
Xxxx Xxxxxxx
________________________________ Manager
TENANT:
FAMILY STEAK HOUSES OF
FLORIDA, INC.
________________________________ By: _______________________________
Xxxxxx X. Xxxxxxxxx
________________________________ Vice President
17
STATE OF ______________
COUNTY OF ____________
The foregoing instrument was acknowledged before me this _____ day of July,
2002, by Xxxx Xxxxxxx, Manager of AFTER OURS, LLC. He is personally known to me
or has produced ____________ as identification.
Name: ___________________________
NOTARY PUBLIC, State and County
Aforesaid
Commission No.
My Commission Expires:
STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this _____ day of July,
2002, by Xxxxxx X. Xxxxxxxxx as Vice President, of FAMILY STEAK HOUSES OF
FLORIDA, INC., on behalf of the corporation. He is personally known to me or has
produced ____________ as identification.
Name: ___________________________
NOTARY PUBLIC, State and County
Aforesaid
Commission No.
My Commission Expires:
18
EXHIBITS
PARAGRAPH EXHIBIT
--------- -------
A Legal Description of Premises
B Rent Schedule
C Subordination, Non-Disturbance
and Attornment Agreement
19
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
(TO BE ATTACHED PRIOR TO EXECUTION)
FROM SURVEY LEGAL DESCRIPTION
EXHIBIT B
RENT SCHEDULE
(INITIAL TERM)
YEARS MONTHLY ANNUALLY
----- ------- --------
1-5 $27,500.00 $330,000.00
6-10 $30,250.00 $363,000.00
11-15 $33,275.00 $399,300.00
16-20 $36,602.50 $439,230.00
(RENEWAL TERMS)
21-25 $40,262.75 $483,153.00
26-30 $44,289.03 $531,468.30
20
EXHIBIT C
STATE OF ___________
SUBORDINATION, NON-DISTURBANCE
COUNTY OF __________ AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made as of ____________, ______, between ________
_______________, a ______________ ("Lender"), and FAMILY STEAK HOUSES OF
FLORIDA, INC. ("Tenant").
RECITALS:
1. Tenant is the lessee under the Lease Agreement dated
____________________,______, entered into by and between ___________________, a
___________________, as landlord ("Landlord"), and Tenant (as amended, the
"Lease"), covering certain land and improvements thereon or to be constructed
thereon (the "Premises") located in _______________________________, as more
particularly defined and described in the Lease; and
2. Lender has made or will make a loan to Landlord, who is the owner of
the Premises, in the principal amount of up to $ __________ (the "Loan") as
evidenced by a note in said principal amount (the "Note") and secured by a
Mortgage or Deed of Trust and an Assignment of Rents, Leases and Profits on the
Premises, which is further described on Exhibit A attached hereto and
incorporated herein by reference (the "Property") (collectively, the "Security
Documents"); and
3. Tenant desires to be assured that, if Lender should foreclose the
Security Documents, Lender agrees to recognize the leasehold estate and rights
of Tenant under the Lease and to assume and be bound to Tenant to perform the
obligations of Landlord under the Lease with the same force and effect as if
Lender were the landlord under the Lease (subject to any express exceptions
herein);
4. Lender is willing to agree that Tenant's possession of the Premises
shall not be disturbed as a result of a foreclosure of the Security Documents or
a transfer in lieu of foreclosure so long as Tenant is not in default (beyond
any period of time given Tenant to cure) under the Lease and provided Tenant
subordinates the Lease to the lien of the Security Documents and agrees to
attorn to the purchaser at the foreclosure sale or transferee taking title in
lieu of foreclosure and recognizes said purchaser or transferee as landlord
under the Lease.
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
21
of which is hereby acknowledged, Lender and Tenant do hereby mutually covenant
and agree as follows:
1. SUBORDINATION. Subject to the terms hereof, Tenant hereby subordinates
the Lease, all extensions, modifications and renewals thereof, and all of
Tenant's rights and interests thereunder, to the Security Documents and the lien
thereof, and to all modifications, renewals and extensions of the same, to the
extent of all advances heretofore or hereafter made to Landlord secured by the
Security Documents.
2. NON-DISTURBANCE AND ATTORNMENT. Provided Tenant is not in default
beyond any period of time set forth in the Lease given Tenant to cure following
any notice required by the Lease, as of the date Lender commences foreclosure
proceedings or accepts a deed in lieu of foreclosure (except that if Tenant is
in default at such date and the default is capable of cure by Tenant and Tenant
is diligently and continuously pursuing such cure to completion then such
default shall not affect Lender's obligations to Tenant hereunder), then no
default under the Security Documents, as modified, extended, increased, spread,
or consolidated, and no proceeding to foreclose the same or the acceptance by
Lender of a deed in lieu of foreclosure, or by any other manner, will disturb
Tenant's possession under said Lease and the Lease will not be affected or
extinguished thereby. In addition, Lender agrees not to name Tenant in any
proceeding instituted to foreclose the Security Documents, unless Lender is
legally obligated to do so in order to properly foreclose the same, and then
such foreclosure shall in any event be made subject to the provisions of this
Agreement. In the event of any such foreclosure or other sale to, or acquisition
of the Premises by, a third party, or by any other manner, in lieu of
foreclosure by Lender, Tenant shall attorn to Lender or such other third party,
and the Lender or such third party shall recognize the Lease as a direct lease
from Lender or such third party, and the Lender or said third party shall assume
and be bound to Tenant to perform the obligations of Landlord under the Lease,
except that neither the purchaser at such foreclosure sale nor the grantee of a
deed in lieu thereof shall (a) be liable for any previous act or omission of
Landlord under the Lease, (b) be subject to any offset, claim or defense which
shall theretofore have accrued against Landlord, unless the basis of such
offset, claim or defense remains uncured and notice thereof is given to Lender
by Tenant as provided herein, (c) have any obligation with respect to any
security deposit under the Lease unless such security deposit has been
physically delivered to Lender, or (d) be bound by any previous modification of
the Lease or by any previous prepayment of rent for a period greater than one
(1) month in advance of its due date under the Lease, unless such modification
or prepayment shall have been expressly approved in writing by Lender, such
approval, in the case of modifications, not to be unreasonably withheld,
conditioned or delayed. Lender agrees to immediately notify Tenant in writing of
any breach or default by Landlord of any of the Security Documents.
3. TERMINATION OF LEASE. Effective from and after the date of this
Agreement, Tenant will not terminate nor seek to terminate the Lease by reason
of a default under the Lease until Tenant shall have given written notice of
such default to Lender as hereinafter provided. Such notice may be given to
Lender contemporaneously
22
with Tenant giving notice to Landlord under the Lease. Tenant will allow Lender
the same period of time to cure the event of default as is allowed to Landlord
under the Lease.
4. WAIVERS TO BE IN WRITING. No modification, amendment, waiver or
release of any provision of this Agreement or of any right, obligation, claim or
cause of action arising hereunder shall be valid or binding for any purpose
whatsoever unless in writing and duly executed by the party against whom the
same is sought to be asserted.
5. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
the parties hereto, their successors and assigns; provided, however, that in the
event of the assignment or transfer of the interest of Lender, all obligations
and liabilities of Lender under this Agreement arising from or after the date of
such assignment or transfer by Lender shall terminate as to the entity that is
then Lender, and thereupon all such obligations and liabilities shall be the
responsibility of the party to whom Lender's interest is assigned or
transferred.
6. NOTICE. Notice to Lender under the Lease or this Agreement shall be
sent to Lender at the following address, or such other address as Lender shall
designate to the Tenant in writing, such new address to be effective thirty (30)
days after Tenant has received it:
_______________________________________
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, Tenant and Lender have respectively signed and sealed
this Agreement as of the day and year first above written.
FAMILY STEAK HOUSES OF FLORIDA, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
TENANT
By: _______________________________
Name: _____________________________
Title: ____________________________
LENDER
23
STATE OF ____________
COUNTY OF ___________
The foregoing instrument was acknowledged before me this _____ day of _________,
____, by as _____________________________, of
__________________________________, a ________________ corporation, on behalf of
the corporation. He/She is personally known to me or has produced ____________
as identification.
Name: ___________________________
NOTARY PUBLIC, State and County
Aforesaid
Commission No.
My Commission Expires:
STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this _____ day of
__________, 2002, by ____________________, as _______________, of FAMILY STEAK
HOUSES OF FLORIDA, INC. on behalf of the corporation. He/She is personally known
to me or has produced ____________ as identification.
Name: ___________________________
NOTARY PUBLIC, State and County
Aforesaid
Commission No.
My Commission Expires:
24
