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EXHIBIT 10-39
WRIT LIMITED PARTNERSHIP
OFFICE BUILDING LEASE
THIS AGREEMENT OF LEASE is made this 23rd day of August, 1996, by and
between the WRIT Limited Partnership ("WRIT"), hereinafter called Landlord, and
United Restaurants, Inc. T/A Grand Havana Room, hereinafter called Tenant.
WITNESSETH:
ARTICLE I PREMISES
1.1 In consideration of the rent hereinafter reserved and of the
covenants hereinafter contained, Landlord hereby leases and demises to Tenant,
and Tenant hereby leases from Landlord. Suite(s) N/A, containing approximately
8298 square feet of rentable area measured in accordance with the WDCAR
Standard Method of Measurement (January 1, 1989), on the lower level (floor(s)
of the building located at 0000 00xx Xxxxxx, XX, Xxxxxxxxxx, XX 00000,
("Building") which space is hereinafter referred to as the Premises. The
foregoing approximately of square footage shall in no way affect the basic
annual rent hereunder should any variance be found to exist between the
approximation and the actual square footage. The Premises are identified on
Exhibit "A" which is attached hereto and incorporated herein for all purposes,
The lease of the Premises includes the right, together with other tenants of
the Building and members of the public, to use the common areas of the
Building, but includes no other rights not specifically set forth herein.
Landlord reserves the right to modify the size, location, arrangement, finish
and other features of the common areas of the Building.
ARTICLE II TERM
2.1 The Lease Term shall be for fifteen (15) year(s) and six (6)
month(s) ("Term"). The Lease Term shall commence on the date Landlord delivers
possession of the Premises to Tenant ("Lease Commencement Date"). It is
presently anticipated that the Premises will be delivered to Tenant on or about
August , 1996 ("Anticipated Occupancy Date"). If the Lease Commencement Date
is not the first day of a month, then the Lease Term shall be extended to
include the partial month in which the Lease Commencement Date occurs. The
date on which the Lease Term expires shall be the Lease Expiration Date.
2.2 If Landlord is unable to give possession of the Premises on or
about the Anticipated Occupancy Date by reason of the holding over or retention
of possession of any tenant or occupant, or if repairs, improvements or
decorations of the Premises, or of the Building of which the Premises form a
part, are not completed, or for any other reason, this Lease shall not be void
or voidable and
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Landlord shall not be subject to any liability for the failure to give
possession on the Anticipated Occupancy Date. Under such circumstances the
rent reserved and covenanted to be paid herein shall not commence until the
possession of the Premises is given or the Premises are available for occupancy
by Tenant, and no such failure to fie possession on the Anticipated Occupancy
Date shall in any other respect affect the validity of this Lease or the
obligations of Tenant hereunder, nor shall same to construed in any way to
extend the Lease Term. If permission is given to Tenant to possess the
Premises or to occupy premises other than the Premises prior to the Anticipated
Occupancy Date, Tenant covenants and agrees that such occupancy shall be deemed
to be under all the terms, covenants, conditions and provisions of this Lease.
2.3 Promptly after the Lease Commencement Date is ascertained,
Landlord and Tenant shall execute a certificate substantially in the form of
Exhibit C hereto and incorporated herein for all purposes affirming the Lease
Commencement Date and the Lease Expiration Date.
ARTICLE III RENT
3.1 Tenant agrees to pay during the term hereof a basic annual
rent of see attached rent schedule:
RENT SCHEDULE
Months
1-6 -0-
7-26 $14,166.67 per month
27-65 $15,416.67 per month
66-125 $16,666.67 per month
126-186 $19,166.67
Tenant shall pay the first installment on the execution of this Lease and the
remaining installments in advance on the first day of each and every calendar
month during the Lease Term (commencing with the second month of the Term).
3.2 All rent payments shall be made payable to WRIT and delivered
to WRIT at 00000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 or to such other person and place as Landlord may hereafter designate in
writing. Such rent payments shall be paid by check (subject to collection)
drawn on a member bank of the Federal Reserve System, Fifth District.
3.3 [Intentionally Omiteed]
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3.4 Tenant shall pay to Landlord as additional rent eight point
three four percent (8/34%) (being the stipulated proportion which the rentable
area of the Premises bears to the total rentable area of the Building) of the
increase in real estate taxes (including special assessments, if any, and any
other taxes now or hereafter imposed which are in the nature of or in
substitution for real estate taxes) levied on the Building and the land (the
"Land") on which the Building is situated over the "Base Real Estate Taxes."
For purposes hereof, the Base Real Estate Taxes are stipulated to be the amount
of real estate taxes actually incurred by Landlord with respect to the Building
and the Land during calendar year 1997.
(a) In the event that the actual real estate taxes for
any calendar year during the Term, commencing January 1, 1998, and thereafter,
exceed the Base Real Estate Taxes set out above, Tenant shall pay its
proportionate share of the increase in the real estate taxes for such year over
the Base Real Estate Taxes. Any increase payable by Tenant under this
provision shall be deemed additional rent.
(b) Prior to each January 1st during the Term, Landlord
shall provide Tenant a comparison of the Base Real Estate Taxes and the
projected real estate taxes for the coming year. Commencing each January 1st
during the Term, Tenant shall pay monthly as additional rent, one-twelfth
(1/12th) of Tenant's proportionate share of any projected increase in the
annual real estate taxes over the Base Real Estate Taxes. Landlord shall,
within ninety (90) days for as soon thereafter as possible) after the close of
each calendar year, provide Tenant a statement of such year's actual real
estate taxes, showing the actual increase, if any, in the real estate taxes
over the Base Real Estate Taxes. Within thirty (30) days after Tenant's
receipt of said statement, Tenant shall pay Landlord Tenant's proportionate
share of the excess, if any, of actual real estate taxes over the projected
real estate taxes. If the amount paid by Tenant during the previous year
exceeded tenant's share of actual real estate taxes for the year, Landlord
shall refund such excess to Tenant within thirty (30) days after delivery of
the said statement of such year's actual real estate taxes.
(c) Reasonable expenses incurred by Landlord in obtaining
or attempting to obtain a reduction of real estate taxes shall be added to and
included in the annual statement of real estate taxes. Real estate taxes which
are being contested by Landlord shall nevertheless be included for purposes of
the computation of the liability of Tenant under this Paragraphs provided, that
in the event that Tenant shall have paid any amount of additional rent pursuant
to Paragraph 3.4 and Landlord shall thereafter receive a refund of any portion
of the real estate taxes on which such payment was based. Landlord shall pay
to Tenant its proportionate share of such refund less any costs incurred in
obtaining same. Landlord shall have no obligation to contest, object to, or
litigate the levying or imposition of any real estate
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taxes and may settle, compromise, consent to, waive, or otherwise determine in
its discretion any real estate taxes without consent or approval of Tenant.
3.5 Tenant shall pay to Landlord as additional rent eight point
three four percent (8.34%) (being the stipulated proportion which the rentable
area of the Premises bears to the total rentable office area of the Building)
of the increase in Operating Expenses during the Term over Initial Operating
Expenses.
(a) "Operating Expenses," as that term is used herein,
shall, subject to the provisions of Addendum Provision No. 3, mean all
expenses, costs and disbursements (but not replacement of capital investment
items or specific costs billed to and paid by specific tenants) of every kind
and nature which Landlord shall pay or become obligated to pay because of or in
connection with the ownership, management, maintenance, repair and operation of
the building including, but not limited to, the following:
(i) Cost of wages and salaries of all employees
engaged in the operation and maintenance of the Building, including
taxes, insurance and benefits:
(ii) Cost of all supplies and materials used in the
operation, maintenance and repair of the Building;
(iii) Cost of all utilities (including surcharges)
including, but not limited to, water, sewer, electricity, heating,
lighting, air conditioning and ventilating for the Building, but
excluding electricity and any other utility separately paid for by
individual tenants;
(iv) Cost of all maintenance and service
agreements for the building and the equipment used therein including,
but not limited to, access control and energy management services,
window cleaning, elevator maintenance and janitorial service;
(v) Cost of insurance relating to the Building,
including, but not limited to, the cost of casualty and liability
insurance applicable to the Building and Landlord's personal property
used in connection therewith;
(vi) Cost of repairs and general maintenance
(excluding repairs and general maintenance paid for by the proceeds of
insurance, or by Tenant or third parties, and alterations attributable
solely to particular tenant spaces within the Building;
(vii) Cost of repairs and general maintenance
(excluding repairs and general maintenance paid for by the proceeds of
insurance, or by Tenant or third parties, and alterations attributable
solely to particular tenant spaces within the Building);
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(viii) A management fee of three percent (3%) of the
gross revenues of the building;
(ix) Cost of any additional services not provided
to the Building at the Lease Commencement Date, but thereafter
provided by Landlord in the prudent management of the Building;
(x) Cost of audit and accounting services;
(xi) Cost of any capital improvements made to the
Building after the Lease Commencement Date that, in Landlord's
reasonable judgment are intended to reduce other operating expenses or
are required under any governmental law or regulation, that was not
applicable to the Building at the Lease Commencement Date, such cost
thereof to be amortized over the useful life thereof at Landlord shall
reasonably determined; provided, however, that costs of complying with
the requirements of the Americans with Disabilities Act of 1990 and
its implementing regulations applicable to the common areas of the
Building or the structure thereof, shall not be included in Operating
Expenses.
(b) Operating Expenses shall not include the following:
(i) costs of capital improvements other than as set
forth in clause (x) above;
(ii) ground rent and interest on and amortization
of mortgages;
(iii) Landlord's income, excise or franchise taxes;
(iv) salaries of Landlord's employees not engaged
in the operation, management, maintenance or repair of the Building;
(v) legal fees incurred in connection with the
leasing of the Building or in connection with disputes with other
tenants relating to the collection of rent and similar matters not
benefitting the tenants of the Building generally;
(vi) leasing commissions, advertising expenses and
other such expenses incurred in leasing or marketing the space within
the Building.
(vii) the portion of electricity and other
utilities, directly attributable to the (but not the common areas of
the Building) for which tenant pays directly.
(c) Operating Expenses for each calendar year shall be
those actually incurred, provided however, that (i) if the Building was not at
least ninety percent (90%) occupied during the entire calendar year, the
Operating Expenses shall be adjusted to project
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the Operating Expenses as if the Building were ninety percent (90%) occupied,
and (ii) Landlord shall bear the percentage of Operating Expenses allocable to
unleased space within the Building.
(d) For purposes hereof, the Initial Operating Expenses
are stipulated to be the amount of Operating Expenses actually incurred by
Landlord during calendar year 1997.
(e) In the event that the actual Operating Expenses for
any calendar year during the Term, commencing January 1, 1998 and thereafter,
exceed the Initial Operating Expenses set out above, Tenant shall pay its
proportionate share of the increase in Operating Expenses for such year over
the Initial Operating Expenses. Any increase payable by Tenant under this
provision shall be deemed additional rent.
(f) Prior to each January 1st during the Term, Landlord
shall provide Tenant a comparison of the Initial Operating Expenses and the
projected Operating Expenses for the coming year. Commencing each January 1st
during the Term, Tenant shall pay monthly as additional rent, one twelfth
(1/12th) of Tenant's proportionate share of any projected increase in the
Operating Expenses over the Initial Operating Expenses. Landlord shall, within
ninety (90) days (or as soon thereafter as possible) after the close of each
calendar year, provide Tenant a statement of such year's actual Operating
Expenses, showing the actual increase, if any, in Operating Expenses over the
Initial Operating Expenses. Within thirty (30) days after Tenant's receipt of
said statement, Tenant shall pay Landlord Tenant's proportionate share of the
excess, if any, of actual Operating Expenses over the projected Operating
Expenses. If the amount paid by Tenant during the previous year exceeded
Tenant's share of actual Operating Expenses for the year, Landlord shall refund
such excess to Tenant promptly.
3.6 Should this lease commence or terminate at any time other than
the last day of a calendar year, the amounts due as additional rent pursuant to
Paragraphs 3.31 and 3.32 for the commencement or termination year only shall be
prorated by the following fraction.
Days Under Lease
365
3.7 Tenant at its expense shall have the right during Landlord's
business hours to examine Landlord's books and records relating to the
Operating Expenses and real estate taxes of the Building for any year or years
for which additional rent becomes due; or, at Landlord's sole discretion.
Landlord will provide Tenant with an audited statement.
3.8 Tenant's obligation to pay the amounts due as additional rent
pursuant to Paragraphs 3.4 and 3.5 during the Term shall survive any expiration
or termination of this Lease by lapse of time or otherwise.
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3.9 The term "Lease Year" shall mean each period of twelve (12)
consecutive months commencing on the Lease Commencement Date, except that if
the Lease Commencement Date is not the first day of a month, then the first
Lease Year shall commence on the Lease Commencement Date and shall continue for
the balance of the month in which the Lease Commencement Date occurs and for a
period of twelve (12) calendar months thereafter and subsequent Lease Years
shall commence on the day following the last day of the preceding Lease Year.
3.10 If the Lease Term begins on other than the first day of a
month, basic annual rent from such date until the first day of the next month
shall be prorated on the basis of the actual number of days in such month and
shall be payable in advance.
3.11 All costs and expenses other than basic annual rent which
Tenant assumes or agrees to pay to Landlord pursuant to this Lease shall be
deemed to be "additional rent" and, in the event of nonpayment: thereof,
Landlord shall have the rights and remedies provided for in the event of
nonpayment of rent, including arrangement of interest and . If such
amounts of charged are not paid at the time provided in this Lease, they shall
nevertheless, if not paid when due, be collectable as additional rent with the
next installment of monthly rent thereafter falling due hereunder, but nothing
herein contained shall be deemed to suspend or delay the payment of any amount
of money or charge at the time the same becomes due and payable hereunder, or
limit any other remedy of Landlord. Basic annual rent and additional rent are
sometimes referred to collectively herein as "rent".
3.12 Tenant agrees to pay to Landlord, as additional rent, a late
fee equal to five percent (5%) of any amount due for monthly rent or other
payments due hereunder if said payments have not been received by Landlord
within five (5) days of the due date. In addition, if Landlord does not
receive such payment within thirty (30) days of such payment's due date, then
such payment and late charge shall bear interest at the rate per annum equal to
the greater of (a) eighteen percent (18%) per annum; provided, however, such
rate is not usurious or (b) the highest non-usurious rate permitted under the
laws of the jurisdiction where the Building is located from the date such
payment was due to the date of payment thereof. Such late charge and interest
shall constitute additional rent due hereunder, shall be paid with the next
monthly installment of basic annual rent coming due hereunder, shall constitute
agreed liquidated damages and not penalties, and shall be in addition to, and
not in lieu of, all other rights and remedies provided to Landlord in this
Lease, at law, or in equity.
ARTICLE IV TENANT'S TAXES
4.1 In the event that any business, rent or other taxes, or any
governmental charges that are now or hereafter levied upon Tenant's use or
occupancy of the Premises or Tenant's business at the Premises are enacted,
changed or altered so that any of such
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taxes are levied against Landlord, or the mode of collection of payment of such
taxes, Tenant shall pay any and all such taxes to Landlord upon written demand
from Landlord.
ARTICLE V SECURITY DEPOSIT
5.1 Tenant agrees to pay to Landlord at the signing of this Lease
eighteen thousand six hundred seventy and 50/100 Dollars ($18,670.50)
("Security Deposit") as security for compliance with the terms of this Lease.
Upon the occurrence of any default by Tenant, Landlord may, from time to time
in its sole discretion, without prejudice to any other remedy, use and apply
the Security Deposit to the extent necessary to make good any arrearage of rent
and any other damage, injury, expense or liability suffered by Landlord by such
default. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand as additional rent the amount so applied in order to
restore the Security Deposit to its original amount. Within approximately
forty-five (45) days after the Lease Expiration Date and after the Premises
have been timely vacated in good order and repair and inspected and the keys
returned to Landlord, then Landlord shall return said Security Deposit to
tenant, without interest, less such portion of the Security Deposit as Landlord
shall have used to satisfy Tenant's obligations under this Lease. If Landlord
transfers the Security Deposit to any transferee of the Building or Landlord's
interest therein, then said transferee shall be liable to Tenant for the return
of the Security Deposit, and Landlord shall be released from all liability for
the return of the Security Deposit. The holder of any mortgage shall not be
liable for the return of the Security Deposit unless such holder actually
receives the Security Deposit.
[ARTICLE VI - INTENTIONALLY OMITTED]
ARTICLE VII ENVIRONMENTAL COVENANTS
7.1 Tenant, its employees, agents, contractors and invitees shall,
at Tenant's own expense, comply with all Environmental Laws, a herein defined,
in connection with its use and occupancy of the Premises and shall obtain,
maintain and comply with all necessary environmental permits, approvals,
registrations and licenses.
7.2 Tenant, its employees, agents, contractors and invitees shall
not use, generate, release, manufacture, treat, refine, produce, process,
store, dump or dispose of any Hazardous Substance, as herein defined, on,
under, or about the Premises or the Building, or transport to or from the
Premises any Hazardous Substance except normal restaurant products, which
products shall be used, stored and disposed of in accordance with all
Environmental Laws.
7.3 Tenant shall, at Tenant's own expense, make all submissions
to, provide all information required by, and comply with all requirements of
all governmental authorities (the
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"Authorities" of "Authority") under the Environmental Laws. Tenant shall
provide Landlord with copies of any environmental audit prepared by or for
Tenant with respect to the Premises and any report(s) or filing(s) made by
Tenant with any Authority.
7.4 Should Landlord, any Authority or any third party demand that
a clean-up plan be prepared and that a clean-up be undertaken because of any
deposit, spill, discharge, or other increase of Hazardous Substances that
occurs as a result of Tenant's use or occupancy of the Premises, then Tenant
shall, at Tenant's own expense, prepare and submit to Landlord and any
applicable Authority the required plans and all related bonds and other
financial assurances, and Tenant shall carry out all such clean-up plans
following their approval by Landlord and all applicable Authorities.
7.5 Tenant shall promptly provide all information regarding the
use, generation, storage, transportation, or disposal of Hazardous Substances
that is requested by Landlord. If Tenant fails to fulfill any duty imposed
under this Article VI within ten (10) days, Landlord may fulfill such duty on
behalf of Tenant, at Tenant's cost and expense; and in such case, Tenant shall
cooperate with Landlord in other to prepare all documents Landlord deems
necessary or appropriate to determine the applicability of the Environmental
Laws to the Premises and Tenant's use thereof, and for compliance therewith,
and Tenant shall execute all documents promptly upon Landlord's request. No
such action by Landlord and no attempt made by Landlord to mitigate damages
under any Environmental Law shall constitute a waiver of any of Tenant's
obligations under this Article VI.
7.6 Landlord shall have the right, but not the obligation, at all
times during the Lease Term to (1) inspect the Premises; (2) enter upon the
Premises to conduct tests and investigations and take samples to determine
whether Tenant is in compliance with the provisions of this Article VI, or as
otherwise necessary; and (3) request lists of all Hazardous Substances used,
stored or located on the Premises. The cost of all such inspections, tests and
investigations shall be borne by Tenant.
7.7 Tenant's obligations and liabilities under this Article VI
shall survive the expiration or early termination of the Lease. For purposes
of this Article VI, the Building shall include the Land (as defined in Section
10.1 hereof).
7.8 Tenant shall indemnify, defend, protect and hold harmless
Landlord, the manager of the Building, and their respective officers,
directors, trustees, beneficiaries, shareholders, partners, agents and
employees from all fines, suits, procedures, claims, and actions of every kind,
and all costs associated therewith (including without limitation, attorneys'
and consultants' fees and the costs of investigation and settlement of any
claims) arising out of or in any way connected with (1) any deposit, spill,
discharge or other release of Hazardous Substances
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which arises at any time from Tenant's, its employees' agents', contractors',
or invitees' use or occupancy of the Premises or the Building; (2) any failure
to provide all information, make all submissions and take all steps required by
all Authorities under the Environmental Law; and (3) Tenant's its employees',
agents', contractors', or invitees' breach of this Article VI, whether or not
Tenant has acted negligently with respect to such Hazardous Substances.
7.9 As used in this Article VI, the term "Hazardous Substances"
means:
(a) any substance designated pursuant to Section
311(b)(2)(A) of the Federal Water Pollution Control Act:
(b) any element, compound, mixture, solution or substance
designated pursuant to Section 102 of the Comprehensive Environmental Response,
Compensation and Liability Act;
(c) any hazardous waste having the characteristics
identified under or listed pursuant to Section 3001 of the Solid Waste Disposal
Act;
(d) any toxic pollutant listed under Section 307(a) of
the Federal Water Pollution Control Act;
(e) any hazardous air pollutant listed under Section 112
of the Clean Air Act;
(f) any imminently hazardous chemical substance or
mixture with respect of which the Administrator of the United States
Environmental Protection Agency has taken action pursuant to Section 7 of the
Toxic Substances Control Act; and
(g) any substance, waste or other material considered
hazardous, dangerous or toxic under any state, local or federal law, code,
ordinance or regulation.
7.10 The term "Hazardous Substances" also includes petroleum and
petroleum products, including crude oil or any fraction thereof, which is not
specifically listed or designated as a Hazardous Substance under subsection
7.9(a) through (g) of this Article VI, as well as natural gas, natural gas
liquids, liquified natural gas and synthetic gas usable for fuel and mixtures
of natural gas and such synthetic gas.
7.11 As used in this Article VI, the term "Environmental Laws"
shall mean and refer to the entirety of the federal acts, portions of which are
referenced in Section 7.9, and all other federal and all state and local laws,
codes, ordinances, rules regulations, and directives governing the discharge,
emission or disposal of any pollutant in, to or from the Premises or the
Building or other premises or the environmental and prescribing methods for
storing, handling or otherwise managing Hazardous Substances and wastes
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including, but not limited to, the then current versions of the following
federal statutes, their state analogs, and the regulations implementing them:
the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.),
the Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. Section 9601 et seq.), the Clean Water Act (33 U.S.C. Section 1251 et
seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), and the Toxic
Substances Control Act (15 U.S.C. Section 2601 et seq.).
ARTICLE VIII MAINTENANCE OF PREMISES BY TENANT
8.1 Tenant shall not in any manner deface or injure the Premises
or the Building and will, subject to Addendum Provision No. 8, pay the cost of
repairing any damage or injury done to the Premises or the Building or any part
thereof by Tenant or Tenant's employees, agents, contractors or invitees.
Tenant agrees that it will keep the Premises and the fixtures therein in clean,
safe, sanitary and good order and condition and will, at the expiration or
other termination of the Term hereof, remove all goods and effects not the
property of Landlord and surrender and deliver up the same broom clean to
Landlord, including keys, locks and other fixtures connected therewith, in like
good order and condition as the same now is or shall be at the commencement of
the Lease Term, ordinary wear and tear and damage by the elements, fire, and
other unavoidable casualty excepted.
8.2 Maintenance and repair of equipment such a kitchen, fixtures,
separate air conditioning equipment, or any other type of special equipment,
whether installed by Tenant or by Landlord on behalf of Tenant, shall be the
sole responsibility of Tenant and Landlord shall have no obligation in
connection therewith.
8.3 In the event a balcony is part of the Premises, Tenant agrees
to keep the balcony in clean, safe, sanitary and broom-clean condition. Tenant
shall not place or put any furniture or other items on the balcony without
Landlord's prior written consent. In the event Tenant fails to obtain
Landlord's prior written consent, Landlord shall have the right to remove all
such furniture or other items not approved by Landlord. Tenant shall not use
the balcony for cooking purposes. Landlord shall have no liability for any
person or any furniture or other item which may fail from the balcony.
ARTICLE IX LANDLORD SERVICES
9.1 Landlord covenants and agrees that it will without additional
charge, furnish: water which is submetered and charged back to Tenant; elevator
services.
9.2 It is agreed that Landlord shall not be liable in any way for
any failure to furnish or in any way for any damage or inconvenience caused by
the cessation or interruption of such heating, air conditioning, electricity,
elevator, janitor or car services caused by fire accidents, strikes,
breakdowns, necessary
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maintenance, alterations, repairs, scarcity of labor or materials, acts of God
or any other causes. It is further agreed that any such failure or inability
to furnish the utilities or services required hereunder shall not be considered
an eviction, actual or constructive, of Tenant from the Premises, and shall not
entitle Tenant to terminate this Lease or to an abatement of rent payable
hereunder. If such failure to provide services continues for five (5)
consecutive days following notice from Tenant to Landlord and the restaurant
must close for this reason only, Tenant shall be entitled to an abatement of
rent until such services are repaired.
ARTICLE X LIABILITY OF LANDLORD
10.1 Landlord, its employees and agents shall not be liable to
Tenant, its employees, agents, invitees or any other person or entity claiming
through Tenant for any damage (including indirect and consequential damage),
injury, loss or claim (including claims for the interruption of or loss of
business) based on or arising out of any cause whatsoever including without
limitation the following: (a) repair to any portion of the Premises or the
Building; (b) interruption in the use of the Premises or any equipment therein;
(c) any accident or damage resulting from any use or operation (by Landlord,
Tenant or any other person or entity) of elevators or heating, cooling,
electrical, sewerage or plumbing equipment or apparatus; (d) termination of
this Lease by reason of damage to the Premises or the building; (e) fire,
robbery, theft, vandalism, mysterious disappearance or any other casualty; (f)
actions of any other tenant of the Building or of any other person or entity;
(g) failure or inability of Landlord to furnish any utility or service
specified in this Lease; and (h) leakage in any part of the Premises or the
Building, or from water, rain, ice or snow that may leak into, or flow from,
any part of the Premises or the Building, or from drains, pipes or plumbing
fixtures in the Premises or the Building. All personal property stored or
placed by tenant or its employees, agents, invitees or any other person or
entity claiming through Tenant in or about the Premises or the Building shall
be at the sole risk of Tenant, and Landlord shall not in any manner be held
responsible therefor. Landlord shall not be liable in damages, nor shall this
Lease be affected, for conditions arising or resulting from, and which may
affect the Building of which the Premises are a part, construction of
contiguous premises. Landlord assumes no liability or responsibility
whatsoever with respect to the conduct and operation of the business to be
conducted in the Premises. For purposes of this Section, the term "Building"
shall be deemed to include the land on which the Building is located ("Land").
Notwithstanding the foregoing, Landlord shall not be released from liability to
Tenant for any physical injury to any natural person caused solely by
Landlord's, or its employees' or agents' gross negligence or willful misconduct
except to the extent covered by Article XVIII of this Lease.
10.2 Tenant and Landlord shall indemnify and hold the other, its
employees and agents harmless from and against all costs,
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damages, claims, liabilities, fines, suits, expenses and damages of any kind
(including without limitation attorneys' fees and the costs of investigation
and settlement of any claims) asserted by or on behalf of any person, entity or
governmental authority against the other, directly or indirectly, based on or
arising out of (a) Tenant's use and occupancy of the Premises or the business
conducted by Tenant or Landlord, as the case may be therein, (b) any act or
omission of Tenant or Landlord or any employee, agent, or invitee of Tenant in
or on the Premises, and or any accident, injury or damage whatsoever to any
person, or the property of any person, occurring in or on the Premises unless
the same was caused by the sole gross negligence or willful misconduct of
Landlord or Tenant, its employees or Agents.
10.3 If any Landlord hereunder transfers the Building or such
landlord's interest therein, then such landlord shall not be liable for any
obligation or liability based on or arising out of any event or condition
occurring on or after the date of such transfer.
10.4 Tenant shall not have the right to offset or deduct the amount
allegedly owed to Tenant pursuant to any claim against Landlord from any rent
or other sum payable to Landlord. Tenant's sole remedy for recovering upon
such claim against Landlord shall be to institute an independent action against
Landlord. Tenant shall not seek the consolidation of any such action brought
by Tenant with any action brought by Landlord hereunder.
ARTICLE XI SIGNS
11.1 Tenant further agrees that (a) no signs, advertisements or
notices shall be inscribed, painted or affixed on any part of the outside or
inside of the Premises or Building, except on the directories and doors of
offices, and then only in such size, color and style as Landlord shall approve;
(b) Landlord has the right to prohibit any advertisement of Tenant which in
Landlord's opinion tends to impair the reputation of the Building or its
desirability as a Building for offices or for financial, insurance or other
institutions and businesses of like nature, and upon written notice from
Landlord, Tenant shall refrain from and discontinue such advertisement; (c) if
any such sign or advertisement is nevertheless exhibited by Tenant, Landlord
shall have the right to remove the same and Tenant shall be liable for any and
all expenses incurred by Landlord in said removal; (d) Landlord shall have the
right to prescribe the weigh and method of installation and position of safes
or other heavy fixtures or equipment and Tenant will not install in the
Premises any fixtures, equipment or machinery that will place a load upon any
floor exceeding the floor load per square foot area which such floor was
designed to carry; and (e) all damage done to the Building by taking in or
removing a safe or any other article of Tenant's office equipment, or due to
its being in the Premises, shall be repaired at the expense of Tenant. No
freight, furniture or other bulky matter of any description will be received
into the Building or carried in the elevators, except as approved by Landlord.
All moving of
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furniture, material and equipment shall be under the direct control and
supervision of Landlord who shall, however, not be responsible for any damage
to or charges for moving same. Tenant agrees promptly to remove from the
public area adjacent to the Building any of Tenant's merchandise there
delivered or deposited. Tenant hereby agrees to purchase a door sign in
accordance with Landlord's sign specifications. Notwithstanding the foregoing,
Landlord recognizes Tenant's desire for retail signage and Tenant recognizes
Landlord's desire to maintain the Building's first class image. Tenant shall
submit, for Landlord's approval, a detailed Signage Program. Said Signage
Program shall also be subject to all codes and ordinances of the District of
Columbia and shall not exceed its pro rata share of all retail signage for the
building.
ARTICLE XII ALTERATIONS
12.1 Tenant accepts the Premises in its "AS IS" condition.
Landlord is under no obligation to make any structural or other Alterations,
decorations, additions, improvements, renovations or other changes
(collectively "Alterations") in or to the Premises except as set forth in
Exhibit D or otherwise expressly provided in this Lease.
12.2 Tenant will not make any Alterations, structural or otherwise,
in or to the Premises or any part thereof nor install any equipment of any kind
that will require any Alterations or additions to the use of the water system,
heating system, air conditioning system, ventilation system, electrical system
or plumbing system, without the prior written consent of Landlord. Any
Alterations made by tenant shall be made: (a) in a good, workmanlike
first-class and prompt manner; (b) using new materials only; (c) by a
contractor and in accordance with plans and specifications approved in writing
by Landlord; (d) in accordance with all applicable legal requirements and
requirements of any insurance company insuring the Building or any portion
thereof, including, but not limited to, compliance with Title III of The
Americans with Disabilities Act of 1990, as amended; and (d) after Tenant has
obtained and delivered to Landlord written, unconditional waivers of mechanics'
and materialmen's liens against the Premises and the Building from all proposed
contractors, subcontractors, laborers and material suppliers for all work and
material in connection with such Alterations.
12.3 It is distinctly understood that all Alterations, including
wall to wall carpeting, upon the Premises (whether with or without Landlord's
consent), shall, at the election of Landlord, remain upon the Premises and be
surrendered with the Premises at the expiration of this Lease without
disturbance, molestation or injury. Tenant will not use any floor adhesive in
the installation of any carpeting. Should Landlord elect that Alterations upon
the Premises be removed upon termination of this Lease or upon termination of
any renewal period hereof. Tenant hereby agrees to cause same to be removed at
Tenant's sole cost and expense and should tenant fail to remove the same, then
and in such event
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Landlord may cause same to be removed at Tenant's expense and Tenant hereby
agrees to reimburse Landlord for the cost of such removal together with any
and all damages which Landlord may suffer and sustain by reason of the failure
of Tenant to remove the same.
ARTICLE XIII SUBLETTING AND ASSIGNMENT
13.1 Tenant shall not assign this Lease or any of Tenant's rights
or obligations hereunder, or sublet or permit anyone to occupy the Premises or
any part thereof, without Landlord's prior written consent, which consent shall
not be unreasonably withheld, conditioned or delayed. No assignment or
transfer of this Lease may be affected by operation of law or otherwise without
Landlord's prior written consent. The consent of Landlord to any assignment or
subletting shall not be construed as a waiver or release of Tenant from
liability for the performance of all covenants and obligations to be performed
by tenant under this Lease. The transfer, whether a single transfer or
multiple transfers, of fifty percent (50%) or more of the ownership interests
of Tenant within a twelve (12) month period shall be deemed equivalent to an
assignment or subletting requiring consent of Landlord, provided there is no
single ownership entity or related entity which then owns more than 50% of
Tenant. Any attempted assignment or subletting made without Landlord's consent
shall at the option of Landlord be deemed an Event of Default under this Lease
if not cured within thirty (30) days after notice from Landlord. Landlord's
acceptance or collection of rent from any assignee, subtenant or occupant shall
not be construed (a) as a consent to or acceptance of such assignee, subtenant
or occupant as a tenant, (b) as a waiver by Landlord of any provision hereof,
(c) as a waiver or release of Tenant from liability for the performance of any
obligation to be performed under this Lease by Tenant, or (d) as relieving
Tenant or any assignee, subtenant or occupant from the obligation of obtaining
Landlord's prior written consent to any subsequent assignment, subletting or
occupancy. Tenant hereby assigns to Landlord any rent due from any assignee,
subtenant or occupant of Tenant as security for Tenant's performance of its
obligations pursuant to this Lease; provided, however, Tenant shall have the
right to collect such rent as long as Tenant is not in default under the terms
of this Lease beyond any applicable notice and cure period. Tenant authorizes
each such assignee, subtenant or occupant to pay such rent directly to Landlord
if such assignee, subtenant or occupant receives written notice from Landlord
specifying that such rent shall be paid directly to Landlord. In the event of
default by any assignee of Tenant or any successor of Tenant in the performance
of any of the terms hereof, Landlord may proceed directly against Tenant
without the necessity of exhausting remedies against such assignee or
successor. Landlord may consent to subsequent assignments or subletting of
this Lease or amendments or modifications to this Lease with assignees of
Tenant, without notifying Tenant, or any successor of Tenant, and without
obtaining its or their consent thereto and such action shall not relieve Tenant
of liability under this Lease. Tenant shall not mortgage this Lease without
Landlord's consent, which consent may be granted
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or withheld in Landlord's reasonable discretion. All restrictions and
obligations imposed pursuant to this Lease on Tenant shall be deemed to extend
to any subtenant, assignee or occupant, or Tenant, and Tenant shall cause such
persons to comply with all such restrictions and obligations. Tenant shall pay
to Landlord a Three Hundred and no/100 Dollar ($300.00) processing fee as well
as expenses (including reasonable attorneys' fees) incurred by Landlord in
connection with Tenant's request for Landlord to give its consent to any
assignment, subletting, occupancy or mortgage, whether or not Landlord consents
thereto.
13.2 A corporate Tenant may, upon notice to Landlord, assign this
Lease to its parent or subsidiary, provided the same assignee assumes, in full,
the obligations of Tenant under this Lease or may sublease the Premises to any
such parent or subsidiary, and such assignment or sublease shall not, relieve
Tenant of its obligations hereunder. Sections 13.4 and 13.6 shall not be
applicable to any transfer made pursuant to this Section 13.2.
13.3 If at any time Tenant intends to assign, sublet or otherwise
transfer all or part of the Premises or this Lease, then tenant shall give
written notice to Landlord ("Sublease Proposal Notice") of the area proposed to
be assigned or sublet (the "Proposed Sublet Space") and the term for which
Tenant desires to sublet the Proposed Sublet Space, the name of the proposed
subtenant or assignee and such other information as Landlord shall reasonably
request.
13.4 After receipt of Tenant's Sublease Proposal Notice, Landlord
shall also have the right, in its sole and absolute but reasonable discretion,,
in addition to Landlord's rights in Section 13.1, to elect: (a) to consent to
the proposed sublease or assignment (including the character of a Sub-tenant),
(b) to reject the proposed sublease or assignment, or (d) to terminate this
Lease with respect to the Proposed Sublet Space except that, if Tenant is to
assign this Lease to an operator which intends to operate the restaurant under
the same concept and menu as the Grand Havana Room for a period of one year,
then Landlord shall not be permitted to terminate this Lease in accordance with
13.4(d) herein but its consent to such an assignment shall be required and
shall not be unreasonably withheld. If, within the first year following the
assignment the use shall change, or if the operation shall close during the one
year period following the assignment, Landlord shall have the right to
terminate this Lease in accordance with 13.4(d) herein on thirty (30) days
written notice. Landlord shall exercise such right by sending Tenant written
notice within twenty (20) days after Landlord's receipt of the Sublease
Proposal Notice. If the Proposed Sublet Space does not constitute the entire
Premises and Landlord elects to terminate this Lease with respect to the
Proposed Sublet Space, then (1) Tenant shall tender the Proposed Sublet Space
to Landlord on a date specified in Landlord's notice (which date shall not be
more than sixty (60) days after the date of such notice) as if such specified
date had been originally set forth in this Lease as the Expiration Date of the
Lease Term with
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respect to the Proposed Sublet Space, and (2) as to all portions of the
Premises other than the Proposed Sublet Space, this Lease shall remain in full
force and affect except that the basic annual rent payable pursuant to Article
III shall be reduced pro rata. Tenant shall pay all expenses of construction
required to permit the operation of the Proposed Sublet Space separate from the
balance of the Premises. If the Proposed Sublet Space constitutes the entire
Premises and Landlord elects to terminate this Lease, then (1) Tenant shall
tender the Premises to Landlord on a date specified in Landlord's notice (which
date shall not be more than sixty (60) days after the date of such notice), and
(2) the Lease Term shall terminate on such specified date. Notwithstanding
anything to the contrary in the foregoing provisions of this Section 13.4,
Landlord shall not have the right to sublease the Proposed Sublet Space or to
terminate this Lease with respect to the Proposed Sublet Space in the event
Landlord consents to an assignment of this Lease to a corporation or other
business entity into or with which Tenant shall be merged or consolidated, or
to which substantially all of the assets of Tenant may be transferred, provided
that such successor entity has assumed in writing all of the obligations and
liabilities of Tenant under this Lease.
13.5 In the event Landlord does not exercise its rights to
terminate this Lease with respect thereto, Tenant shall be entitled to seek
Landlord's consent to an acceptable assignee or subtenant for the Proposed
Sublet Space, for a sublease term no longer than that set forth in the Sublease
Proposal Notice. Such consent not to be unreasonably withheld, conditioned or
delayed. Such consent or permission pursuant to Section 13.1 may be withheld
if (a) the subtenant or assignee is of a character or engaged in a business
which is not in keeping with the standards of Landlord for the Building, (b)
the Proposed Sublet Space is not regular in shape with appropriate means of
ingress and egress and suitable for normal renting purposes, (c) in the
reasonable judgment of Landlord, the assignee or sublease does not have the
financial capacity to undertake the obligations of this Lease or the Sublease,
or (d) such a sublease or assignment would violate any term or condition of any
covenant or agreement of Landlord involving the Building, or any other tenant
lease within the Building. IN the event such Assignment or Sublease for the
assignee or subtenant designated in Tenant's Sublease Proposal Notice (which
assignment/sublease and assignee/subtenant are acceptable to and approved by
Landlord) has not been executed by Tenant submitted for within one hundred
fifty (150) days from the date of Tenant's Sublease Proposal Notice. Tenant
shall not be entitled to enter into such assignment or sublease without first
submitting a new Sublease proposal Notice to Landlord and affording Landlord an
opportunity to exercise its rights as set forth in Section 13.4, including its
subletting or termination rights.
13.6 If any sublease, assignment or other transfer (whether by
operation of law or otherwise and whether consented to or not) provides that
the subtenant, assignee or other transferee is to pay any amount in excess of
the rent and other charges due under this
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Lease (except rent, or other payments received which are attributable to the
amortization of the cost of leasehold improvements made to the sublet or
assigned portion of the Premises by Tenant for the subtenant or assignee, and
other reasonable expenses incident to the subletting or assignment, including
standard leasing commissions and any amounts reasonably allocated to the sale
of the business as a going concern and any inventory or stock or good will
related thereto), then whether such excess is in the form of an increased
monthly or annual rent, a lump sum payment, payment for the sale, transfer or
lease of Tenant's fixtures, leasehold improvements, furniture and other
personal property, or any other form (and it the subleased or assigned space
does not constitute the entire Premises, the existence of such excess shall be
determined on a pro rata basis), then Tenant shall pay to Landlord fifty
percent (50%) of any such excess as additional rent upon such terms as shall be
specified by Landlord and in no event later than ten (10) days after Tenant's
receipt thereof. tenant expressly waives any right that it might have to
retain such fifty percent (50%) of the excess pursuant to the provisions of
section 365(f) of the Bankruptcy Code. Landlord shall have the right to
inspect and audit Tenant's books and records relating to any sublease,
assignment or other transfer. Any sublease, assignment or other transfer shall
be effected on a form approved by Landlord.
ARTICLE XIV RIGHT OF ACCESS
14.1 Landlord, its employees and representatives shall have the
right at any time during the Lease Term, upon reasonable notice except in an
emergency, to enter into and upon any and all parts of the Premises during
business hours (or, in an emergency, at any hour) to (a) view, inspect, secure
and clean the Premises, (b) make repairs to the Premises or Building, or
introduce, replace, repair, alter or make new change existing connections from
any fixture, pipes, wires, ducts, conduits, or other construction thereon, (c)
remove, without being held responsible therefor, placards, signs, lettering,
window or door coverings and the like not expressly consented to or (d) show
the Premises to prospective tenants, purchasers or lenders; and Tenant shall
not be entitled to any abatement or reduction of rent by reason thereof, nor
shall such be deemed to be an actual or constructive eviction. Landlord shall
have the right to use a portion of the Premises for all necessary pipes and
unreasonably interfere with Tenant's use of the Premises. Landlord may, within
one hundred and twenty (120) days preceding the expiration of the Lease Term,
enter the Premises to place and maintain notices for letting, free from
hindrance or control of Tenant. If Tenant shall vacate the Premises during the
last month of the Lease term, Landlord shall have the unrestricted right to
enter the Premise after Tenant's moving to commence preparations for the
succeeding tenant or for any other purpose whatever, without affecting Tenant's
obligation to pay rent for the full Lease Term.
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ARTICLE XV INCREASE IN LANDLORD'S FIRE INSURANCE
15.1 Tenant will not do or permit anything to be done in the
Premises or the Building or bring or keep anything therein which shall in any
way increase the rate of fire or other insurance for said Building, or on the
property kept therein, or obstruct, or interfere with the rights of other
tenants, or in any way injure or annoy them, or those having business with
them, or conflict with the fire laws or regulations, or with any insurance
policy upon said Building or any part thereof, or with any statutes, rules or
regulations enacted or established by the appropriate governmental authority.
ARTICLE XVI TENANT'S EQUIPMENT
16.1 Tenant will not install or operate in the Premises any
electrically operated equipment or other machinery, other than typewriters,
calculators, personal computers, facsimile machines and such other electrically
operated office machinery and restaurant equipment normally used in modern
offices and restaurants, without first obtaining the prior written consent of
Landlord, who may condition such consent upon the payment by Tenant of
additional rent as compensation for such excess consumption of water and/or
electricity as may be occasioned by the operation of said equipment or
machinery. Tenant shall not install any other equipment of any kind or nature
whatsoever which will or may necessitate any changes, replacements or additions
to or require the use of the water system, plumbing system, heating system, air
conditioning system, ventilation system or the electrical system of the
Premises without the prior written consent of Landlord. Business machines and
mechanical equipment which cause noise or vibration that may be transmitted to
the structure of the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenant shall be installed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate such noise and vibration.
ARTICLE XVII CONDEMNATION
17.1 If all or any portion of the Premises or occupancy thereof
shall be permanently taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose or
sold under threat of such a taking or condemnation (collectively,
"Condemnation"), and such Condemnation shall materially and adversely affect
Tenant's use of the Premises, then this Lease shall terminate on the date
possession thereof is taken by such authority and rent shall be apportioned as
of such date. In the event of the Condemnation of any portion of the Premises
which does not materially and adversely affect Tenant's use of the Premises,
then this Lease shall continue in full force and effect as to the part of the
Premises, then this Lease shall continue in full force and effect as to the
part of the Premises not Condemned, except that as of the date possession is
taken by such authority, Tenant shall not be required to pay the basic annual
rent with
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respect to the part of the Premises Condemned. Notwithstanding anything herein
to the contrary, if twenty-five percent (25%) or more of the Land or the
Building is Condemned, then whether or not any portion of the Premises is
Condemned, Landlord shall have the right to terminate this Lease as of the date
title vests in such authority.
17.2 All awards, damages and other compensation paid by such
authority on account of such Condemnation shall belong to Landlord, and Tenant
assigns to Landlord all rights to such awards, damages and compensation.
Tenant shall not make any claim against Landlord or the authority for any
portion of such awards, damages or compensation attributable to damage to the
Premises, value of the unexpired portion of the Lease Term, loss of profits or
goodwill, leasehold improvements or severance damages. Tenant may, if allowed
by statute, seek such awards or damages for moving expenses, loss of profits
and fixtures and other equipment installed by it which do not, under the terms
of this Lease, become the property of Landlord at the termination hereof. Such
awards or damages must be made by a Condemnation court or other authority and
must be separate and distinct from any award to Landlord for the Land and
Building and shall not diminish any award of Landlord.
ARTICLE XVIII INSURANCE
18.1 Landlord agrees that it will keep the Building insured against
loss due to fire and other property risks included in standard all risk
coverage insurance policies, and covering loss of income from such property
risk, or in lieu thereof, insure the Building against loss or damage as a self
insurer, provided its net worth is greater than ten times the amount of
insurance required.
18.2 Throughout the Lease Term, Tenant shall insure the contents of
the Premises, including, without limitation, alterations, decorations,
furnishings, fixtures and equipment used or installed in the Premises by or on
behalf of Tenant, and the other personal property of Tenant in the Premises;
against loss due to fire and other property risks included in standard all risk
coverage insurance policies, in an amount equal to the replacement cost thereof
and covering loss of income from such property risk. All insurance carried by
Tenant hereunder shall be primary and not contributing with any insurance
carried by Landlord.
18.3 Landlord and Tenant agree that all insurance policies required
to be carried pursuant to Section 18.1 hereof shall either permit or contain an
express waiver of any right of recovery (by subrogation or otherwise) by the
insurance company against Tenant, and that all insurance policies required to
be carried pursuant to Section 18.2 shall either permit or contain an express
waiver of any right of recovery (by subrogation or otherwise) by the insurance
company against Landlord, its managing agent and any mortgagee of Landlord.
Each party hereby waives any and every right or cause of action for any and all
loss of, or damage to, any of its property (whether or not such loss or damage
is caused by
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the fault or negligence of the other party or anyone for whom said other party
may be responsible), which loss or damage is covered by valid and collectible
fire, extended coverage, "All Risk" or similar policies, maintained by such
party or required to be maintained by such party under this Lease, to the
extent that such loss or damage is recovered under said insurance policies or
would have been recovered if the insurance policies required hereunder had been
maintained as required pursuant to this Lease. Written notice of the terms of
said mutual waivers shall be given in each insurance carrier and said insurance
policies shall be properly endorsed, if necessary, to prevent the invalidation
of said insurance coverage by reason of said waivers.
18.4 Throughout the Lease Term, Tenant shall obtain and maintain
commercial general liability insurance on an occurrence basis protecting
against any liability occasioned by any occurrence on or about the Premises and
containing contractual liability coverage and business interruption coverage.
Such insurance shall be initially in minimum amounts of One Million Dollars
($1,000,000) per occurrence and Two Million Dollars ($2,000,000) general
aggregate and shall be for a minimum term of one (1) year.
18.5 Tenant shall also maintain throughout the Lease Term, at
Tenant's sole cost and expense, worker's compensation in statutory limits.
18.6 Each of said policies of insurance to be carried by Tenant
hereunder shall name Landlord and Landlord's managing agent as an additional
insured, and if requested by the holder of any mortgage or deed of trust
against the Building, shall also name such holder as an additional insured.
Each policy shall contain an endorsement which provides that no cancellation or
reduction of coverage may be made without first giving Landlord, Landlord's
managing agent and, if named as an additional insured, the holder of any
mortgage or deed of trust on the Building, at least thirty (30) days prior
written notice of such proposed action. All insurance policies required under
this Lease shall be issued by insurance companies licensed to do business in
the jurisdiction wherein the Building is located with a then current Xxxxxx M.
Best Company, Inc. general policy holder's rating of "A" or better and a
financial size category of Class XII or higher and which have been in business
for the past five (5) years and which are otherwise reasonably satisfactory to
Landlord. On or before the Lease Commencement Date, and thereafter not less
than fifteen (15) days prior to the expiration dates of said policy or
policies, Tenant shall provide copies of policies or certificates of insurance
(Accord 27) evidencing the coverage required by this Article XVIII. The
aforesaid insurance limits may be reasonably increased from time to time by
Landlord.
ARTICLE XIX FIRE OR CASUALTY
19.1 If the Premises or the Building are totally or partially
damaged or destroyed thereby rendering the Premises totally or
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partially inaccessible or unusable, then Landlord shall diligently repair and
restore the Premises and the Building to substantially the same condition they
were in prior to such damage or destruction; provided, however, that if (a) in
Landlord's reasonable judgment such repair and restoration cannot be completed
within two hundred seventy (270) days after the occurrence of such damage or
destruction (taking into account the time needed for effecting a satisfactory
settlement with any insurance company involved, removal of debris, preparation
of plans and issuance of all required governmental permits) or (b) twenty
percent (20%) or more of the Premises is damaged and less than six (6) months
would remain of the Term or any removal thereof upon completion of the repairs,
then Landlord or Tenant shall have the right, at its option, to terminate this
Lease as of the sixtieth (60) day after such damage or destruction by giving
written notice of termination to the other party within forty-five (45) days
after the occurrence of such damage or destruction.
19.2 If this Lease is terminated pursuant to Section 19.1 above,
then all rent shall be apportioned (based on the portion of the Premises which
is usable after such damage or destruction) and paid to the date of
termination. If this Lease is not terminated as a result of such damage or
destruction, then until such repair and restoration of the Premises are
substantially complete, Tenant shall be required to pay the basic annual rent
only for the portion of the Premises that is usable while such repair and
restoration are being made. Landlord shall bear the expenses of repairing and
restoring the premises and the building; provided, however, that Landlord shall
not be required to repair or restore the contents of the Premises, including
without limitation, alterations, decorations, furnishings, fixtures and
equipment used or installed in the Premises by or on behalf of Tenant and any
other personal property of Tenant. Tenant shall not be entitled to any
compensation or damages from Landlord for loss of the use of the whole or any
portion of the Premises or for any inconvenience or annoyance occasioned by any
such damage, repair or restoration.
19.3 Notwithstanding anything herein to the contrary, Landlord
shall not be obligated to restore the Premises or the Building and shall have
the right to terminate this Lease if (a) the holder or any mortgage fails or
refuses to make insurance proceeds available for such repair and restoration,
(b) zoning or other applicable laws or regulations do not permit such repair
and restoration, or (c) the cost of repairing and restoring the Building would
exceed fifty percent (50%) of the replacement value of the Building, whether or
not the Premises is damaged or destroyed, provided the leases of all other
tenants in the Building are similarly terminated.
ARTICLE XX DEFAULTS AND REMEDIES
20.1 Each of the following shall constitute an Event of Default:
(a) Tenant's failure to make any payment of the basic annual rent, additional
rent or any other sum within ten (10) days
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of written notice from Landlord of Tenant's failure to make such payment on
such payment's due date; (b) Tenant's failure to take possession of the
Premises within thirty (30) calendar days after delivery thereof to Tenant; (c)
Tenant's violation or failure to perform or observe any other covenant or
condition of this Lease for a period of thirty (30) days following Landlord's
written notice thereof to Tenant; (d) Tenant's abandonment or vacation of the
Premises; (e) an Event of Bankruptcy as specified in Article XXI with respect
to Tenant. Any general partner of Tenant (a "General Partner") or any
guarantor; or (f) Tenant's dissolution or liquidation.
20.2 If there shall be an Event of Default, including an Event of
Default prior to the Lease commencement Date, then Landlord shall have the
right, at its sole option, to terminate this Lease. In addition, with or
without terminating this Lease, Landlord may reenter the Premises, terminate
Tenant's right of possession and take possession of the Premises. The
provisions of this Section shall operate as a notice to quit, any other notice
to quit or of Landlord's intention to reenter the Premises being hereby
expressly waived. If necessary, Landlord may proceed to recover possession of
the Premises under and by virtue of the laws of the jurisdiction in which the
Building is located, or by such other proceedings, including reentry and
possession, as may be applicable. If Landlord elects to terminate this Lease
and/or elects to terminate Tenant's right of possession, then everything
contained in this Lease to be done and performed by Landlord shall cease,
without prejudice, however, to Landlord's right to recover from Tenant all rent
and other sums due hereunder through the Lease Expiration Date as defined in
Section 2.1. No such re-entry or taking possession of the Premises by Landlord
shall be construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to Tenant or unless the termination
thereof shall result as a matter of law or be decreed by a court of competent
jurisdiction. Whether or not this Lease and/or Tenant's right of possession is
terminated, Landlord may, but shall not be obligated to, relet the Premises or
any part thereof, alone or together with other premises, for such rent and upon
such terms and conditions (which may include concessions, free rent and
alterations of the Premises) as Landlord in its sole discretion, may determine,
but Landlord shall not be liable for, nor shall Tenant's obligations be
diminished by reason of, Landlord's failure to relet the Premises or collect
any rent due upon such reletting, it being agreed and understood that Tenant
shall retain the right to assign the Lease or sublet the Premises, subject to
the terms and conditions set forth in Article 13 of the Lease. Whether or not
this Lease is terminated, Tenant nevertheless shall remain liable for any basic
annual rent, additional rent or damage which may be due or sustained by reason
of such default, and all costs, fees and expenses including without limitation
reasonable attorneys' fees, brokerage fees, expenses incurred in placing the
Premises in rentable condition and tenant finish necessitated to obtain the new
tenant's incurred by Landlord in pursuit to its remedies and in renting the
Premises to others from time to time.
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Notwithstanding any such reletting without termination, Landlord may at any
time thereafter elect to terminate this Lease for such previous breach. Tenant
shall also be liable to Landlord for additional damages, which shall be, at
Landlord's option, either (a) or (b) below:
(a) an amount equal to the basic annual rent and
additional rent which would have become due during the remainder of the Lease
Term, less the amount of rent. If any, which Landlord receives during such
period from others to whom the Premises may be rented (other than any
additional rent payable as a result of any failure of such other person to
perform any of its obligations), which damages shall be computed and payable in
monthly installments, in advance, on the first day of each calendar month
following Tenant's default and continuing until the date on which the Lease
Term would have expired but for Tenant's default. Separate suits may be
brought to collect any such damages for any month(s), and such suites shall not
in any manner prejudice Landlord's right to collect any such damages for any
subsequent month(s), or Landlord may defer any such suit until after the Lease
Expiration Date, in which event the cause of action shall be deemed not to have
accrued until the Lease Expiration Date; or
(b) an amount equal to the present value (as of the date
of Tenant's default) of the basic annual rent and additional rent which would
have become due during the remainder of the Lease Term, less the rent received
by Landlord under any reletting of the Premises, which damages shall be payable
to Landlord in one lump sum on demand; provided that Landlord has relet the
Premises which reletting may occur at any time up to the Lease Expiration Date.
For purposes of this subsection (2), present value shall be computed by
discounting at a rate equal to one (1) whole percentage point above the
discount rate then in effect at the Federal Reserve Bank of New York.
20.3 Tenant waives any right of redemption, re-entry or restoration
of the operation of this Lease under any present or future law, including any
such right which Tenant would otherwise have if Tenant shall be dispossessed
for any cause.
20.4 If Tenant fails to perform any covenant or observe any
condition to be performed or observed by Tenant hereunder or acts in violation
of any covenant or condition hereof or fails to make any payment to any third
party, and such is not cured within the applicable notice and cure period,
Landlord may, but shall not be required to on behalf of Tenant, perform such
covenant and/or take such steps, including entering the Premises, as may be
necessary or appropriate, in which case Landlord shall have the right to
proceed immediately and all costs and expenses incurred by Landlord in so
doing, including reasonable legal fees, shall be paid by Tenant to Landlord
upon demand, plus interest thereon at the rate per annum equal to the greater
of (a) eighteen percent (18%) per annum; provided, however such rate is not
usurious or (b) the highest non-usurious rate permitted under the laws of the
jurisdiction where
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the Building is located, from the date of expenditure(s) by Landlord, as
additional rent. Landlord's proceeding under the rights reserved to Landlord
under this Section shall not in any way prejudice or waive any rights Landlord
might otherwise have against Tenant by reason of Tenant's default.
20.5 Landlord's rights and remedies set forth in this Lease are
cumulative and in addition to Landlord's other rights and remedies at law or in
equity, including those available as a result of any anticipatory breach of
this Lease. Landlord's exercise of any such right or remedy shall not prevent
the concurrent or subsequent exercise of any other right or remedy. Landlord's
delay or failure to exercise or enforce any of Landlord's rights or remedies or
Tenant's obligations shall not constitute a waiver of any such rights, remedies
or obligations.
20.6 Notwithstanding anything to the contrary contained in Section
20.1 of this Lease, in the event that Tenant fails to timely pay the basic
annual rent, Real Estate Taxes, Operating Expenses or any other sum due under
the Lease, the Landlord shall give written notice to Quantum Restaurant Group,
Inc., Peasant Holding Corporation and United Restaurants, Inc. t/a Grand Havana
Room of such failure and such parties shall have ten (10) days from the date of
such notice to cure such default, and the ten (10) day cure period contained in
Section 20.1(a) of the Lease shall not apply. Any cure by any of the entities
shall be deemed a cure by Tenant. In the event Quantum Restaurant Group, Inc.,
Peasant Holding Corporation or United Restaurants, Inc. t/a Grand Havana Room
fail to cure such default then an Event of Default shall exist under the terms
of this Lease and Landlord shall have the right to exercise any and all
remedies Landlord may have under this Lease or at law or in equity. In the
event Landlord releases Quantum Restaurant Group, Inc. and Peasant Holding
Corporation, then Landlord shall no longer be obligated to send the foregoing
notices to such entities.
All notices shall be sent pursuant to Article XXX at the following addresses:
Quantum Restaurant Group, Inc.
Xx. Xxxxxx Xxxxxxx, Chief Financial Officer
0000 Xxx Xxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxx Xxxx, XX 00000
Peasant Holding Corporation
Xx. Xxxxxx Xxxxxxx Chief Financial Officer
0000 Xxx Xxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxx Xxxx, XX 00000
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United Restaurants, Inc. t/a Grand Havana Room
Xx. Xxxxx Xxxxxxx
0000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
ARTICLE XXI BANKRUPTCY
21.1 The following shall be Events of Bankruptcy under this Lease:
(a) Tenant, a guarantor or a General Partner becoming insolvent, as that term
is defined in Title 11 of the United States Code (the "Bankruptcy Code"), or
under the insolvency laws of any state (the "Insolvency Laws"); (b) appointment
of a receiver or custodian for any property of Tenant, a guarantor or a General
Partner, or the institution of a foreclosure or attachment action upon any
property of Tenant, a guarantor or a General partner; (c) filing of a voluntary
petition by Tenant, a guarantor or a General Partner under the provisions of
the Bankruptcy Code or insolvency laws; (d) filing of an involuntary petition
against Tenant, a guarantor or a General Partner as the subject debtor under
the Bankruptcy Code or insolvency Laws, which either (i) is not dismissed
within sixty (60) days of filing, or (ii) results in the issuance of an order
for relief against the debtor; or (e) Tenant, a guarantor or a General Partner
making or consenting to an assignment for the benefit of creditors or a
composition of creditors.
[ARTICLE XXII - INTENTIONALLY OMITTED]
ARTICLE XXIII LEGAL FEES
23.1 If, as a result of any breach or default in the performance of
any of the provisions of this Lease (whether or not such default is later
cured), Landlord or Tenant uses the services of an attorney in order to secure
compliance with such provisions or recover damages therefor, or to terminate
this Lease or evict Tenant, or if Landlord or Tenant is required to defend
itself or the terms of this Lease and Landlord or Tenant uses the services of
an attorney then Tenant or Landlord shall reimburse the prevailing party upon
demand for any and all attorneys' fees and expenses so incurred by the
prevailing party with such amounts being additional rent in the event Landlord
is the prevailing party.
ARTICLE XXIV DAMAGE
24.1 All injury to the Premises or the Building caused by moving
the property of Tenant into, on, or out of the Building or the Premises and all
breakage done by Tenant, or the agents, servants, employees and visitors of
Tenant, shall be repaired by Tenant, at the expense of Tenant, unless such
damage is covered by Landlord's insurance. In the event that Tenant shall fail
to do so, then Landlord shall have the right to make such necessary repairs,
alterations and replacements (structural, nonstructural or otherwise) and any
charge or cost so incurred by Landlord shall be
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paid by thereafter falling due under the terms of this Lease. This provision
shall be construed as an additional remedy granted to Landlord and not in
limitation of any other rights and remedies which Landlord has or may have in
said circumstances.
24.2 All Personal Property of Tenant in the Premises or in the
Building shall be at the sole risk of Tenant and Tenant agrees to obtain
insurance for such Personal Property as provided in Section 18.2 of this Lease.
Landlord shall not be liable for any accident to or damage to the Personal
Property of Tenant resulting from the use or operation of elevators or of the
heating, cooling, electrical or plumbing apparatus. Landlord shall not, in any
event, be liable for damages to the Personal Property resulting from water,
steam or other causes. Tenant hereby expressly releases Landlord from any
liability incurred or claim by reason of damage to Tenant's Personal Property.
ARTICLE XXV SUBORDINATION
25.1 This Lease is subject and subordinate at all times to all
ground or underlying leases, all mortgages and/or deeds of trust, all
covenants, restrictions, easements, and encumbrances which may now or hereafter
affect such leases or the real property of which the Premises form a part, and
all future renewals, modifications, consolidations, replacements and extensions
thereof. This clause shall be self- operative and no further instrument of
subordination shall be required by any mortgagee or trustee. In confirmation
of such subordination, Tenant shall promptly execute and deliver without charge
any certificate or document that Landlord may request in a form which
recognizes this Lease and is otherwise reasonably acceptable to Tenant within
ten (10) days following Landlord's written request. Tenant hereby constitutes
and appoints Landlord as Tenant's attorney-in-fact to execute any such
certificate or certificates for and on behalf of Tenant. Provided, however,
that notwithstanding the foregoing, the party secured by any such deed of trust
shall recognize this Lease so long as Tenant is not in default hereunder beyond
any applicable notice and cure period, and in the event of any foreclosure sale
under such deed of trust, this Lease shall continue in full force and effect so
long as Tenant is not in default hereunder beyond any applicable notice and
cure period, in which event Tenant shall attorn to such party secured by such
deed of trust or purchaser as Landlord under this Lease. Upon such attornment
such party secured by such deed of trust or purchaser shall not be (a) bound by
any payment of rent or additional rent more than one (1) month in advance, (b)
bound by any amendment of this Lease made without the consent of the holder of
the deed of trust existing as of the date of such amendment, (c) liable for
damages for any breach, act or omission of any prior Landlord, or (d) subject
to any offsets or defenses which Tenant might have against any prior Landlord;
provided, however, that after succeeding to Landlord's interest, such party
secured by such deed of trust or purchaser shall perform, in accordance with
the terms of this Lease, all obligations of Landlord arising after the date of
Application of title to the Building. Tenant covenants and
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agrees that it will, at this written request of the party secured by any such
deed of trust, execute, acknowledge and deliver any instrument that has for its
purpose and effect the subordination of said deed of trust to the lien of this
Lease.
25.2 Tenant agrees that neither the cancellation nor termination of
any ground or underlying lease shall by operation of law or otherwise, result
in cancellation or termination of this Lease or the obligations of Tenant
hereunder, and Tenant covenants and agrees to attorn to such Landlord or to any
successor to Landlord's interest in such ground or underlying lease subject to
the attornment provisions set forth in Section 23.1 above. In that event, this
Lease shall continue as a direct lease between Tenant herein and such landlord
or its successor.
ARTICLE XXVI TENANT HOLDOVER
26.1 This Lease shall terminate on the Lease Expiration Date
pursuant to the terms of this Lease without the necessity of notice from either
Landlord or Tenant. Any holding over by Tenant after the Lease Expiration Date
without Landlord's written consent as provided in Section 24.2 shall be an
unlawful detainer and Tenant shall be subject to immediate eviction. During
such hold over, all the terms and conditions set forth in this Lease shall
apply rent in effect during the last month of the Lease term ("Hold Over
Rent"). In addition to paying to Landlord the Hold Over Rent, if Tenant fails
to surrender and vacate the Premises on the Lease Expiration Date, Tenant shall
indemnify and hold Landlord harmless from and against any and all loss,
liability, damages and expenses (including without limitation, attorneys' fees,
the costs of investigation and settlement of any claims) sustained or incurred
by Landlord on account of or resulting from such failure, including, without
limitation, claims made by any succeeding tenant of all or any part of the
Premises or the loss by Landlord of the rent from any succeeding tenant of all
or any part of the Premises.
26.2 If, with the written consent of Landlord, Tenant or any party
claiming by, through or under Tenant remains in possession of the Premises, or
any part thereof, after the Lease Expiration Date, Landlord shall treat such
holding over by Tenant as the creation of a month-to-month tenancy, subject to
all the terms, covenants and conditions set forth in this Lease insofar as the
same are applicable to a month-to-month tenancy, except that Tenant shall pay a
basic annual rent equal to twice the basic annual rent in effect during the
last month of the Lease Term. Tenant shall give to Landlord at least thirty
(30) days prior written notice from the first day of the month of any intention
to quit said Premises, and Tenant shall be entitled to the same thirty (30)
days prior written notice to quit said Premises, except in the event of
non-payment of rent in advance or of any breach of any other covenant by
Tenant, in which event Tenant shall not be entitled to any notice to quit, the
usual thirty (30) days notice to quit being hereby expressly waived: provided,
however, that in the event Tenant shall hold over after the expiration of the
Lease Term, and if Landlord shall
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desire to regain possession of the Premises promptly at the expiration of the
Lease Term, then at any time prior to Landlord's acceptance of rent from Tenant
on a monthly Tenant hereunder, Landlord, at its option, may forthwith re-enter
and take possession of the Premises without process, or by legal process in
force in the jurisdiction in which the Building is located.
ARTICLE XXVII WAIVER AND NOTICE
27.1 No waiver of any breach of any covenant, condition or
agreement herein contained shall operate as a waiver of the covenant, condition
or agreement itself, or of any subsequent breach thereof. No provision of this
Lease shall be deemed to have been waived by Landlord or Tenant unless such
waiver shall be in writing signed by the other party. If Landlord or Tenant
waives in writing any default, then such waiver shall not be construed as a
waiver of any subsequent, similar default or of any covenant or condition set
forth in this Lease except as to the specific circumstances described in such
written waiver. No payment by Tenant or receipt by Landlord of a lessor amount
than the monthly installments of rent herein stipulated shall be deemed to be a
payment in full of the stipulated rent nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy in this Lease provided. Landlord shall have the right
to apply tenant's payments to any balance or arrearage Tenant has outstanding.
Landlord's re-entry and acceptance of keys shall not be considered an
acceptance of a surrender of this Lease.
ARTICLE XXVIII WAIVER OF JURY TRIAL
28.1 LANDLORD, TENANT, AND ALL GUARANTORS AND GENERAL PARTNERS OF
TENANT AGREE TO AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY
OF SAID PREMISES AND/OR ANY CLAIM OF INJURY OR DAMAGE, AND ANY STATUTORY
REMEDY.
28.2 Tenant consents to service of process and any pleading
relating to any such action at the Premises: provided, however, that nothing
herein shall be construed as requiring such service at the Premises. Landlord,
Tenant, all guarantors and all General Partners of Tenant waive any objection
to the venue of any action filed in any court situated in the jurisdiction in
which the Building is located and waive any right under the doctrine of forum
non conveniens or otherwise, to transfer any such action filed in any such
court to any other court.
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ARTICLE XXIX LIMITATION OF LIABILITY OF LANDLORD
29.1 Pursuant to Article 3 of the Declaration of Trust of
Washington Real Estate investment Trust dated November 18, 1960, as amended,
nothing in this Lease shall be construed in any event whatsoever is impose any
personal liability upon, the trainees, officers or the shareholders of the
Washington Real Estate Investment Trust, as Landlord herein in contract, tort,
or otherwise. Anything contained in this Lease to the contrary
notwithstanding, Tenant agrees that Tenant shall look solely to Landlord's
equity in the Building for the collection of any judgment (or other judicial
process) requiring the payment of money by Landlord in the event of any default
or breach by Landlord with respect to any of the terms and provisions of this
Lease to be kept, observed and performed by Landlord subject, however, to the
prior rights of any ground or underlying landlords or any mortgagee of all or
any part of the Building or the Premises, and no other assets of Landlord shall
be subject to levy, execution or other judicial process for the satisfaction of
Tenant's claim.
ARTICLE XXX NOTICES
30.1 All notices required hereunder by either party to the other
shall be sent by recognized overnight courier with receipt therefor (such as
Federal Express). Notices to Landlord shall be sent to Washington Real Estate
Investment Trust ("WRIT"), 00000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Chief Financial Officer, Notices to
Tenant shall be sent to the Premises and to: United Restaurants, Inc., 0000
Xxxxxxxx Xxxx., Xxx Xxxxxxx, XX 00000, ATTN: Xxxxx Xxxxxxx. Tenant hereby
elects domicile at the Premises for the purpose of all notices, writs of
summons, or other legal documents, or process, in any suit, action, or
proceeding which Landlord may undertake under this Lease.
ARTICLE XXXI CERTAIN RIGHTS RESERVED BY LANDLORD
31.1 Landlord hereby reserves to itself and its successors and
assigns the following rights (all of which are hereby consented to by Tenant):
(a) to change the street address and/or name of the Building and/or the
arrangement and/or location of entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets, or other public parts of the Building,
(b) to control and operate the public portions of the Building and the public
facilities, as well as facilities furnished for the common use of the tenants,
in such a manner as it deems best for the benefit o tenants generally, to
erect, use and maintain pipes and conduits in and through the Premises, and (c)
to grant to anyone the exclusive right to conduct any particular business or
undertaking in the Building. Landlord may exercise any or all of the foregoing
rights without being deemed to be guilty of an eviction, actual or
constructive, or a disturbance or interruption of the business of Tenant or of
Tenant's use or occupancy of the Premises.
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ARTICLE XXXII BROKER
32.1 Landlord recognizes GSC Real Estate Group and as a sub-agent
to GSC, Xxxxx, Xxxx Xxxxxx ("Broker(s)") as the sole Broker(s) procuring this
Lease and shall pay said Broker(s) a commission therefor pursuant to a separate
agreement between said Broker(s) and Landlord. Landlord and Tenant each
represent and warrant to one another that except as set forth herein neither of
them has employed any broker, agent or finder in carrying on the negotiations
relating to this Lease, Landlord shall indemnify and hold Tenant harmless, and
Tenant shall indemnify and hold Landlord harmless, from and against any claim
or claims for brokerage or other commissions arising from or out of any breach
of the foregoing representation and warranty by the respective indemnitors.
ARTICLE XXXIII ESTOPPEL CERTIFICATE
33.1 Tenant shall from time to time, within ten (10) days after
Landlord shall have requested the same of Tenant, execute, acknowledge and
deliver to Landlord a written instrument in recordable form and otherwise in
such form as required by Landlord (a) certifying that this Lease is in full
force and effect and has not been modified, supplemented or amended in any way
(or, if there have been modifications, supplements or amendments thereto, that
it is in full force and effect as modified, supplemented or amended and stating
such modifications, supplements and amendments); (b) stating the rent payable
and dates to which the rent and other charges hereunder have been paid by
Tenant; (c) stating whether or not to the best knowledge of Tenant, Landlord is
in default in the performance of any covenant, agreement or condition contained
in this Lease, and if so, specifying each such default of which Tenant may have
knowledge; (d) stating the Lease Commencement Date and Lease Expiration Date,
including any optional renewals; and (e) stating any other fact or certifying
any other condition reasonably requested by Landlord or requested by any
mortgages or prospective mortgagee or purchaser of the Building or Land or of
any interest therein. In the event that Tenant shall fail to return a fully
executed copy of such certificate to Landlord within the foregoing ten (10) day
period, then Tenant shall be deemed to have approved and confirmed all of the
terms, certifications and representations contained in such certificate, and
Tenant irrevocably authorizes and appoints Landlord as its attorney-in-fact to
execute such certificate on behalf of Tenant. Any such statement delivered
pursuant hereto may be relied upon by any owner of the Building or the Land,
any mortgagee or prospective mortgagee or purchaser of the Building, Land or
any interest therein or any prospective assignee of any mortgagee.
ARTICLE XXXIV RULES AND REGULATIONS
34.1 Tenant will:
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(a) not strip, overload, damage or deface the Premises or
hallways, stairways, elevators, parking facilities or other approaches thereto,
of said Building, or the fixtures therein or used therewith, nor permit any
hole to be made in any of the same:
(b) not suffer or permit any trade or occupation to be
carried on or use made of the Premises which shall be unlawful, noisy,
offensive, or injurious to any person or property, or such as to increase the
danger of fire or affect or make void or voidable any insurance on said
Building, or which may render any increased or extra premium payable for such
insurance, or which shall be contrary to any law or ordinance, rule or
regulation from time to time established by any public authority;
(c) not move any furniture or equipment into or out of
the Premises except at such times as Landlord may from time to time designate;
(d) not place upon the interior or exterior of the
Building or any window or any part thereof or door of the Premises any placard,
sign, lettering, window covering, drapes or any other item which Landlord in
its sole discretion deems unsuitable, except such and in such place and manner,
as shall have been first approved in writing by Landlord;
(e) park vehicles only in the are from time to time
designated by Landlord; Landlord reserves the right to determine the number of
parking spaces that shall be used by Tenant;
(f) not install a television antenna or air condition on
the roof, in the windows or upon the exterior of the Premises;
(g) use and allow to be used all plumbing within the
Premises and the Building only for the purposes for which it was designed, and
no foreign substance of any kind shall be thrown therein;
(h) not use any space in the Building for the sale of
goods t the public at large or for the sale at auction of goods or property of
any kind;
(i) not place additional locks or bolts of any kind on
any of the doors or windows, and shall not make any change in any existing lock
or locking mechanism therein, without Landlord's prior written consent;
(j) not use the Premises for lodging or sleeping or for
any immoral or illegal purpose;
(k) not construct, maintain, use or operate within the
Premises any electrical device, writing or apparatus in connection with a loud
speaker system or other sound system without Landlord's prior written consent
and Tenant shall not construct, maintain, use
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or operate any such loud speaker or sound system outside of the Premises;
(l) not obstruct or encumber or use for any purpose other
than ingress and egress to and from the premises any sidewalk, entrance,
passage, court, elevator, vestibule, stairway, corridor, hall or other part of
the Building not exclusively occupied by Tenant;
(m) comply with all rules or regulations from time to
time established by the appropriate insurance rating organization;
(n) comply with all rules or regulations from time to
time established by Landlord for the operation and maintenance of the Building;
and
(o) not manufacture any commodity therein, without the
prior written consent of Landlord.
34.2 It is understood that employees of Landlord are prohibited as
such from receiving any package or other articles delivered to the Building for
Tenant and that should any such employee receive any such packages or articles,
he or she in so doing shall be the agent of Tenant and not of Landlord.
ARTICLE XXXV FINANCIAL STATEMENTS
35.1 Tenant agrees to provide to Landlord within fourteen (14) days
of Landlord's request the most recent audited (or certified to be true an
correct by the President and Chief Financial Officer) annual financial
statements of Tenant, including balance sheets, income statements, and
financial notes ("Statements"). Tenant consents that Landlord may release the
Statements to Landlord's trustees, officers, employees, subsidiaries,
affiliates, lenders, advisors, joint venture partners, or potential purchasers
of the Building for the purpose of evaluating Tenant's financial condition with
respect to performance under the Lease of to any third party pursuant to any
order of any governmental agency or court. Landlord agrees to keep the
Statements confidential and not to release the statements to third parties
except as set forth herein.
[ARTICLE XXXVI - Intentionally Omitted]
ARTICLE XXXVII QUIET ENJOYMENT
37.1 If Tenant pays all the rent herein reserved and performs and
observes all of the other terms, covenants and conditions of this Lease on
Tenant's part to be performed and observed hereunder, Tenant shall, during the
Term, peaceably and quietly have, hold and enjoy the Premises without
molestation or hindrance by Landlord or any party claiming through or under
Landlord, subject to the provisions of this Lease.
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ARTICLE XXXVIII MISCELLANEOUS
38.1 No Representations. Tenant acknowledges that neither Landlord
nor any broker, agent or employee of Landlord has made any representations or
promises wit respect to the Premises or the Building except as herein expressly
set forth, and no rights, privileges, easements or licenses are being acquired
by Tenant except as herein expressly set forth.
38.2 No Partnership. Nothing contained in this Lease shall be
deemed or construed to create a partnership or joint venture of or between
Landlord or Tenant, or to create any other relationship between the parties
hereto other than that of landlord and tenant.
38.3 Authority. Landlord and Tenant covenant each for itself, that
each has full right, power and authority to enter into this Lease upon the
terms and conditions herein set forth. If tenant signs as a corporation, each
of the persons executing this Lease on behalf of Tenant does hereby covenant
and warrant that Tenant is a duly authorized and existing corporation,
qualified to do business in the state in which the Building is located, that
the corporation has full right and authority to enter into this lease, and that
each and both persons signing on behalf of the corporation were authorized to
do so; and that the name and address of Tenant's resident agent in the
jurisdiction where the Building is located is . Tenant shall advise
Landlord in writing if the name and address of its resident agent is changed
during the Term hereof.
38.4 Additional Rent. All other costs and expenses which Tenant
assumes or agrees to pay to landlord pursuant to this Lease shall be deemed to
be "additional rent" and, in the event of nonpayment thereof, Landlord shall
have all the rights and remedies provided for in the case of nonpayment of
rent, including assessment of interest and late fees. If such amounts or
charges are not paid at the time provided in this Lease, they shall
nevertheless, if not paid when due, be collectable as additional rent with the
next installment of rent thereafter falling due hereunder, but nothing herein
contained shall be deemed to suspend or delay the payment of any amount of
money or charge at the time the same becomes due and payable hereunder, or
limit any other remedy of Landlord.
38.5 Force Majeure. If Landlord is in any way delayed or prevented
from performing any of its obligations under this Lease due to fire, acts of
God, governmental act or failure to act, strike, labor dispute, inability to
procure materials or any other cause beyond Landlord's reasonable control
(whether similar or dissimilar to the foregoing events), then the time for
performance of such obligation shall be excused for the period of such delay or
prevention.
38.6 No Recording. This Lease shall not be recorded in any office
legally established for the purpose of giving public notice
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of real estate records and any attempt to do so may be treated by Landlord as
an Event of Default under this Lease. In the event Tenant does record this
Lease or any memorandum thereof, Tenant, by such act, irrevocably constitutes
and appoints Landlord as its special attorney-in-fact to execute any and all
documents required to remove the Lease or any memorandum thereof from the
public records.
38.7 Governing Law. This Lease is governed under the laws of the
jurisdiction in which the Building is located.
38.8 Captions. Section headings are used for convenience and shall
not be considered when construing this Lease.
38.9 Severability. If any term or provision of this Lease or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those to which it
is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforceable to the fullest extent
permitted by law.
38.10 Tenant Liability. If two or more individuals, corporations,
partnerships or other persons (or any combination of two or more thereof) shall
sign this Lease as Tenant, the liability of each such individual, corporation,
partnership or other persons to pay the rent and perform all other obligations
hereunder shall be deemed to be joint and several.
38.11 Time is of the Essence. Time is of the essence of each
provision of this Lease.
38.12 Entire Agreement. This Lease contains the entire agreement of
the parties in regard to the Premises and this Lease and no representations,
inducements or agreements, oral or otherwise, between the parties not contained
in this Lease shall be of any force or effect. This Lease may not be amended,
modified or changed in whole or in part in any manner other than by an
agreement in writing duly signed by both parties hereto.
38.13 Benefit and Burden. The provisions of this lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and each of
their respective heirs, executors, administrators, successors, and assigns.
Landlord may freely assign its interest hereunder.
38.14 Gender and Number. Feminine or neuter pronouns shall be
substituted for those of the masculine form, and the plural shall be
substituted for the singular number, in any place or placed herein in which the
context may require such substitution or substitutions. Landlord herein for
convenience has been referred to in the neuter form.
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38.15 Survival. Tenant's liabilities existing as of the expiration
or earlier termination of the Lease Term shall survive such expiration or
earlier termination.
38.16 Submission of Lease. The submission of this Lease for
examination does not constitute a or an option for lease, and the
same shall not be effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
38.17 Parking. Landlord hereby grants Tenant a license to use
unreserve parking spaces. Tenant shall pay Landlord, in advance, a monthly
parking fee without abatement, deduction, offset, demand or counterclaim for
the foregoing parking spaces in the amount of
per space per month. The foregoing fee is subject to increase on an
annual basis. Tenant agrees to comply and shall cause its officers, employees,
agents and contractors to comply with all rules and regulations promulgated by
Landlord with respect to the parking of vehicles.
38.18 Addendum. Yes.
SEE ATTACHED ADDENDUM FOR ADDITIONAL PROVISION OF THIS LEASE.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed under seal by a duly authorized officer, intending to be legally bound
hereby, as of the day and year first above written. The covenants of Tenant
are joint and several obligations of each party signing as Tenant, and, when
the parties signing as
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Tenant are partners, shall be the obligation of the firm and of the individual
members thereof.
WITNESS/ATTEST: TENANT:
/s/ Xxxxxxx Xxxxxx UNITED RESTAURANTS, INC.
T/A GRAND HAVANA ROOM
Printed Name: Xxxxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxx (SEAL)
Title:
By: (SEAL)
Printed Name:
Title:
Social Security Number:
Federal Tax Identification
Number:
WITNESS/ATTEST: LANDLORD:
/s/ WRIT LIMITED PARTNERSHIP
By: WASHINGTON REAL ESTATE
INVESTMENT TRUST,
General Partner
By: /s/ (SEAL)
Printed Name:
Title: SVP & CFO
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ADDENDUM
THIS ADDENDUM TO LEASE ("Addendum") is entered into this 23rd of
August, 1996 by and between the WASHINGTON REAL ESTATE INVESTMENT TRUST
("Landlord") and UNITED RESTAURANTS, INC., T/A GRAND HAVANA ROOM ("Tenant").
RECITALS:
WHEREAS, Landlord and Tenant are parties to an Office Building Lease
dated ("Lease") whereby Tenant leased certain premises consisting
of approximately 8298 square feet of space ("Premises") and known as LOWER
LEVEL, 0000 00XX XXXXXX, XX, XXXXXXXXXX, XX 00000.
WITNESSETH:
NOW THEREFORE, in consideration of Ten Dollars ($10.00) in hand paid
by each party to the other, the mutual promises herein contained, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged, and intending to be legally bound, the parties agree as follows.
1. The recitals contained above are true to the best of
the parties' knowledge and are incorporated by reference herein.
2. Any term used herein that is defined in the Lease
shall have the same meaning as specified in the Lease unless otherwise
specifically provided herein.
3. The following new Articles are hereby added to the
Lease:
Article XXXIX USE OF THE PREMISES AND OPERATION OF BUSINESS
39.1 Permitted Use. Tenant will use and occupy the Premises solely
for the following express use(s) and purpose(s) and for no other use or
purposes: sit-down, white tablecloth restaurant, cigar club and the incidental
sale of related gift items such as pens, private humidors, and similar related
items, it being agreed and understood that Tenant may use that portion of the
Premises located on street level for the retail sale of cigars and related
items to the general public ("Permitted Use") and only in accordance with
applicable zoning and other municipal regulations and for no other purpose
whatsoever. Tenant shall not change such Permitted Use in any manner
whatsoever and shall not make any substantial change or modification in the
method by, or in the manner in which Tenant conducts his business in the
Premises without the prior written approval of Landlord. Tenant
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acknowledges and agrees that the Permitted Use of the Premises has been
precisely defined to achieve a balanced and diversified group of tenants,
merchandise and services at the Building. Accordingly, it is understood and
agreed that without Landlord's prior written consent, Tenant shall not sell any
products, offer any services or undertake any line of business which is not in
conformity with the Permitted Use of the Premises. Tenant shall pay to
Landlord, as additional rent, any additional costs incurred by Landlord as a
result of Tenant's Permitted Use or any other xxx or purpose of the Premises.
Tenant will not use or occupy the Premises for any unlawful purpose or that
would violate Tenant's certificate of occupancy, or for any purpose that would
constitute a nuisance or unreasonable annoyance to Landlord or any other
tenants of the Building, and Tenant will comply with all present and future
laws, ordinances, regulations, and orders of the United States of America, the
state in which the Building is located, and any other public or quasi-public
authority having jurisdiction over the Building.
39.2 Trade Name: Tenant will conduct business in the Premises in
the trade name of GRAND HAVANA ROOM.
39.3 Operation of Business: Tenant Agrees (1) except as herein
otherwise provided, to continuously and uninterruptedly occupy and use the
entire Premises during the entire Term and any Renewal Term(s) for the uses
herein specified (without consideration of the profitability of the business)
and to conduct Tenant's business therein in a reputable manner; (2) to remain
open for business at least for lunch and for dinner during all such days,
nights and hours as may reasonably be designated by Landlord from time to time
on ten (10) days' prior written notice to Tenant (it being agreed and
understood however that subject only to any applicable laws Tenant may remain
open for business for any hours and on any days that it wishes); however,
Tenant hereby acknowledges, consents and agrees that any and/or all services,
facilities and access by the public to the Premises and/or to the Building may
be suspended in whole or in part, or during any periods of actual or threatened
civil commotion, insurrection or other circumstances beyond Landlord's control,
when Landlord, in Landlord's reasonable judgment, shall deem the suspension of
such services, facilities and access necessary for the protection and/or
preservation of persons and/or property; (3) to maintain displays of
merchandise in the display windows, if any; (4) to keep the display windows and
signs, if any, well lighted during such hours and days as the Building is
lighted by Landlord, including periods in addition the business hours of
Tenant, if in Landlord's judgment such lighting is necessary or desirable; (5)
to keep and maintain the Premises and Tenant's personal property and signs
therein or thereon and the exterior and interior portions of all windows, doors
and all other glass or plate glass in a neat, clean, sanitary and safe
condition and good repair, promptly replacing any glass that is broken or
cracked; (6) to warehouse, store or stock in the Premises only such goods,
wares and merchandise as Tenant intends
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to offer for sale at retail; (7) to apply for, secure, maintain and comply with
all licenses or permits which may be required for the conduct by Tenant of the
business herein permitted to be conducted in the Premises and to pay, if, as
and when due, all license and permit fees and charges of a similar nature in
connection therewith; (8) neither to solicit business nor to distribute
advertising matter in the parking or other Common Areas or facilities of the
Building except as permitted in writing by Landlord; (9) not to conduct any
auction, distress, fire or bankruptcy sale or any going-out-of-business sale
(whether real or fictitious); (10) not to represent or advertise that it
regularly or customarily sells merchandise at manufacturer's, distributor's,
wholesale, warehouse, discount, fire sale, bankruptcy sale or similar prices
other than at retail, but nothing contained herein shall restrict Tenant from
determining the selling price of its own merchandise or preclude the conducting
of periodic seasonal, promotional or clearance sales; (11) not to conduct any
catalogue, telephone or mail-order sales in or from the Premises except of
merchandise permitted pursuant to Article 41.3 of this Lease; and (12) not to
park or permit to be parked any of Tenant's trucks, employee vehicles or any of
Tenant's delivery vehicles in the parking areas, except armored vehicles and
not to load or unload, or permit to be loaded or unloaded, any trucks or
delivery vehicles in any portion of the Building other than in places
designated for such purposes by Landlord.
XL REPAIRS
40.1 Landlord shall keep and maintain the roof and other exterior
portions of the Premises (exclusive of doors, windows, glass, showcases and
storefronts) in good repair, provided that Tenant shall give Landlord written
notice of the necessity for such repairs, and provided that the damage thereto
shall not have been caused by Tenant, its agents, contractors, invitees or
employees, in which event Tenant shall be responsible therefore and shall
promptly repair such damage. The provisions of this Section 40 shall not apply
in the case of damage or destruction by fire or other casualty or by eminent
domain. Except as provided in this Article 40.1, Landlord shall have no
obligation or liability for repair or maintenance of the Premises, or any part
thereof, nor shall Landlord be under any liability to repair, maintain or
replace any electrical, plumbing heating, air conditioning or other mechanical
installation, nor shall Landlord be obligated to make any improvements of any
kind upon the Premises, or to make any repairs, replacements or improvements to
any equipment, facilities or fixtures contained therein, all of which shall be
the responsibility of Tenant as provided in Article 40.1.
40.2 Tenant, at Tenant's sole cost and expense, shall keep the
interior of the Premises, including but not limited to all doors, windows and
glass, including glass walls, electrical, plumbing, heating, air conditioning
and other mechanical installations and equipment used by or in connection with
the Premises in clean, safe
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and sanitary condition and in good order and repair, including replacement
thereof, and promptly replace any plate glass which may be broken or damaged
with glass of like kind and quality, and will suffer no waste or injury
thereto, and quit and surrender the Premises at the expiration of the Term in
as good condition as when received, except for ordinary wear and tear. Without
limitation of the generality of the foregoing, Tenant, at Tenant's sole cost
and expense, shall promptly make all repairs and replacements to (i) any pipes,
lines, ducts, wires or conduits contained within the Premises, (ii) Tenant's
signs, (iii) any heating, air conditioning, electrical, ventilating or plumbing
equipment installed in or serving the Premises, (iv) all glass window panes and
doors, and (v) any other mechanical systems serving the Premises. Tenant shall
be responsible, at Tenant's sole cost and expense, for providing all
janitorial, cleaning, pest and termite control services for the Premises. All
such services shall be provided in accordance with standards customarily
maintained for similar shopping centers and Tenant shall maintain, at Tenant's
sole coast and expense, service contracts therefor. Tenant shall provide
Landlord with a copy of a fully executed maintenance contract covering heating,
ventilation and air conditioning equipment within the Premises and Tenant
agrees to keep such contract in force during the Term of this Lease. Such
contract shall be with a contractor licensed to do business in the jurisdiction
in which the Building is located and approved by Landlord, and shall cover all
parts and labor. Tenant ill not overload the electrical wiring and will not
install any additional electrical wiring or plumbing unless it has first
obtained Landlord's written consent thereto, and if such consent is given,
Tenant will install all such wiring or plumbing at its own cost and expense.
Tenant will repair promptly, at its own expense, any damage to the Premises or
Building caused by bringing into the premises or the Building any property for
Tenant's use or by the installation, use or removal of such property,
regardless of fault or by whom such damage shall be caused, unless caused by
Landlord's, its agents', employees' or contractors' gross negligence or willful
misconduct.
40.3 In the event Tenant shall not proceed promptly and diligently
to make any repairs or perform any obligation imposed upon it by the preceding
Articles within seven (7) days after receiving written notice from Landlord to
make such repairs or perform such obligation, then and in such event Landlord
may, at its option, enter the Premises and do and perform the things specified
in said notice at Tenant's cost and expense, without liability on the part of
landlord for any loss or damage resulting from any such action by Landlord, and
Tenant agrees to pay, as additional rent, promptly upon demand any cost or
expense incurred by Landlord in taking such action, plus twelve percent (12%)
for overhead and administration.
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XLI UTILITIES
41.1 Tenant, at its own expense, shall arrange with the appropriate
utility companies for the provision of any and all utilities. Tenant shall pay
promptly when due the charges for all utility services rendered or furnished to
the Premises, including, without limitation, heat, water, sewer, telephone, gas
and electricity (whether by meter or sub-meter). Landlord will provide and
maintain the necessary mains and electrical conduits to bring water, gas and
electricity to the perimeter of the Premises. Under no circumstances shall
Landlord be liable to Tenant in damages or otherwise (i) if any utility shall
become unavailable from any public utility company, public authority or any
other person or entity supplying or distributing such utility, or (ii) for any
interruption in service of electricity, water, sewer, gas, heat, ventilation,
telephone or air conditioning caused by fire, accidents, strikes, breakdowns,
necessary maintenance, alterations, repairs, acts of God or any other causes;
and the foregoing shall not constitute a termination of this Lease or an actual
or constructive eviction and shall not entitle Tenant to terminate this lease
or to an abatement of rent payable hereunder.
XLII COMPLIANCE WITH LAWS
42.1 Tenant shall comply with all present and future laws, rules,
regulations, orders, directions and requirements of all governmental
departments, bodies, bureaus, agencies and officers, and with all rules,
directions, requirements and recommendations of fire departments, the local
board of fire underwriters and other fire insurance rating organizations for
the area in which the Building is situated, pertaining to the Premises or the
use and occupancy thereof, including the making of such alterations,
modifications and improvements as may be so required. In the event Tenant
shall fail or neglect to comply with any of the aforesaid laws, rules,
regulations, orders, directions, requirements or recommendations, Landlord or
its agents may enter the Premises and take all such action and do all such work
in or to the Premises as may be necessary in order to comply with such laws,
rules, regulations, orders, directions, requirements or recommendations, and
Tenant shall reimburse Landlord promptly upon demand for the expense incurred
by Landlord in taking such action and performing such work. Tenant shall not
do or suffer to be done, or keep or suffer to be kept, anything in, upon or
about the Premises which will contravene Landlord's policies insuring against
loss or damage by fire or other hazards, including but not limited to public
liability, or which will prevent Landlord from procuring such policies in
companies reasonably acceptable to Landlord; and if anything done, omitted to
be done or suffered to be done by Tenant, or kept or suffered by Tenant to be
kept in, upon or about the premises shall cause the cost of fire or other
insurance on the Premises or other property of Landlord in the Building, in
companies reasonably acceptable to landlord, to be increased,
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Tenant will pay the amount of such increase promptly upon Landlord's demand.
42.2 Tenant shall also make such alterations, modifications,
additions, installations or improvements to the Premises as may be required for
the safety and health of Tenant's employees pursuant to the Xxxxxxxx-Xxxxxxx
Occupational Safety and Health Act of 1970 (OSHA), as the same may be amended
or implemented from time to time; but no such alterations, modifications,
additions, installations or improvements, or any other alteration,
modification, addition, installation or improvement Tenant may wish to make,
shall be made unless Landlord shall first have given written approval of the
plans and specifications therefor, and shall have been protected, to Landlord's
satisfaction, against any cost or damage incident thereto, and unless Tenant
shall first have secured al necessary building and other permits; and all
thereof, when made, shall become the property of Landlord and shall remain upon
and be surrendered with said Premises as a part thereof at the end of the Term
of this Lease. Landlord agrees that it will not unreasonably withhold its
consent to any such alterations, modifications, additions, installations or
improvements. If Tenant should make any thereof without Landlord's consent,
Tenant hereby agrees to indemnify Landlord from any liability which may devolve
upon Landlord as a consequence thereof.
XLIII TRASH
43.1 Tenant, at its sole cost and expense, shall keep the Premises
clean, both inside and outside, and will remove all refuse from the premises
and from adjacent areas, all at its own expense. Tenant will not burn any
trash or garbage of any kind in the premises, or the Building, nor permit
refuse, rubbish or garbage to accumulate or fire hazard to exist about the
Premises or the Building. Tenant shall arrange for and maintain a commercial
type trash container of adequate size at the rear of the Premises and arrange
for adequate, regular pickup of trash and garbage, the location of which shall
be approved by Landlord. if Tenant's Premises is designed to keep trash
indoors, no trash shall be stored outside Tenant's Premises.
XLIV MECHANICS LIENS
44.1 Tenant covenants not to suffer or permit any mechanics' or
materialmen's liens (or a petition to establish such lien) or other similar
liens to be filed against the Premises, the fee estate or any leasehold
interest in the Building or any part thereof by reason of work, labor, services
or materials supplied or claimed to have been supplied to Tenant or anyone
holding the Premises or any part thereof through or under Tenant. If any such
lien shall at any time be filed, Tenant shall, within thirty (30) days after
receiving notice of the filing thereof, cause the same to be discharged or
record by payment, deposit, bond, order of a court of competent jurisdiction or
otherwise bonded off. Tenant
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shall also defend on landlord's behalf and at Tenant's sole cost and expense
any action, suit or proceeding for the enforcement of any such lien, and Tenant
shall pay as additional rent any damages and satisfy and discharge any judgment
entered thereon and indemnify and save Landlord harmless from any fees, costs,
expenses, claims or damages resulting therefrom.
XLV ROOF AND WALLS
45.1 Landlord shall have the exclusive right to use all or any part
of the roof and side walls of the Premises and the Building for any purpose, to
erect additional stores or other structures over or adjacent to all or any part
of the Premises or the Building, and to erect and maintain in connection with
the construction thereof temporary scaffolds and other aids to construction on
the exterior of the Premises or the Building; provided, however, that access to
the interior of the Premises shall not be denied and that there shall be no
encroachment upon the interior of the Premises.
XLVI EXCAVATION
46.1 If any excavation shall be made upon land adjacent to the
premises, Tenant shall permit the party authorized to cause such excavation to
be made to enter upon the Premises for the purpose of doing such work as such
party may deem necessary to preserve the wall of the building of which the
Premises form a part from damage and to support the same by proper foundations
and shoring, and Tenant hereby waives all claims for inconvenience,
disturbance, loss of business or other damages against Landlord therefor and
without in any manner affecting Tenant's obligations under this
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Lease, nor shall the same constitute any ground for an abatement of any rent
hereunder.
IN WITNESS WHEREOF, Landlord and Tenant have executed under seal and
delivered this Addendum under Seal on the date first above written.
WITNESS/ATTEST: TENANT:
/s/ UNITED RESTAURANTS, INC.
T/A GRAND HAVANA ROOM
/s/ Xxxxx Xxxxxxx
WITNESS/ATTEST: LANDLORD:
/s/ WASHINGTON REAL ESTATE
INVESTMENT TRUST
By: /s/ (SEAL)
By: (SEAL)
Name: Xxxxx X. Finger
Title: Sr. V.P. & CFO
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LEASE ADDENDUM
This LEASE ADDENDUM ("Addendum") is made to the Restaurant Lease and
Exhibits dated as of August 23, 1996 (collectively, the "Lease"), by and
between WASHINGTON REAL ESTATE INVESTMENT TRUST ("Landlord") and UNITED
RESTAURANTS, INC. T/A GRAND HAVANA ROOM ("Tenant").
Tenant and Landlord hereby agree that notwithstanding anything
contained in the Lease to the contrary, the provisions set forth below will be
deemed to be a part of the Lease and shall supersede, to the extent
appropriate, any contrary provision in the Lease. All references in the Lease
and in this Addendum shall be construed to mean the Lease and Exhibits, as
amended and supplemented by this Addendum. All defined terms used in this
Addendum, unless specifically defined in this Addendum, shall have the same
meaning as such terms have in the Lease.
1. Contingencies. Tenant may terminate the Lease, upon written
notice to Landlord, if Tenant is unable to obtain any governmental approvals,
consents, permits or licenses of any kind (collectively, the "Permits")
required in order to construct and operate on the Premises a private club with
complete dining facilities including the sale and consumption of alcoholic
beverages and the sale and the smoking of cigars on site (the "Private Club").
Tenant shall diligently pursue the acquisition of the Permits. If Tenant fails
to obtain any of the Permits Landlord shall be so notified and shall have
ninety (90) days after receipt of such notice to obtain the Permits on behalf
Tenant at Tenant's sole cost and expense; provided, however, in no event shall
Tenant be obligated hereunder for any such costs in excess of $15,000.00.
Tenant shall diligently work Landlord to obtain the Permits. Furthermore, if
at any time during the term of this Lease Tenant, through no fault of its own,
loses the permits necessary to operate the Private Club as described in the
first sentence of this Addendum Provision No. 1 (including, without limitation,
as the result of any kind of governmental determination or finding that
Tenant's use of the Premises for the Private Club constitutes a private club of
the type that may not hold a license for the on-site sale of alcoholic
beverages), then Tenant may, by written notice to Landlord, terminate this
Lease. Any termination by Tenant pursuant to this Addendum Provision No. 1
shall be effective as of the date (the "Effective Date") set forth in Tenant's
notice to Landlord. On or before the Effective Date, Tenant shall vacate the
Premises and return possession thereof to Landlord and from and after the
Effective Date neither party shall have any further liability under this Lease
except that Landlord shall promptly return any prepaid rent or security deposit
to Tenant.
2. Furniture, Fixtures and Equipment. During the entire term of
this Lease Tenant shall have, at no additional cost and expense to Tenant, the
exclusive right to use all of the furniture,
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fixtures and equipment listed in Exhibit D attached to the lease (the "FF&E"),
but Landlord shall make no representation to the accuracy of Exhibit D.
Landlord represents and warrants that it has full power and authority to permit
Tenant such exclusive use, free of all prior rights or encumbrances, and
Landlord shall indemnify Tenant and hold Tenant harmless with respect to any
claims or damages suffered by Tenant because of any misrepresentation by
Landlord or because of any prior claims made with respect thereto. If Tenant
wants to remove any of the FF&E from the Premises during the term of the Lease,
then Tenant must first offer any such FF&E to Landlord before removing same.
Upon the expiration or earlier termination of the Lease all of the then
remaining FF&E in the Premises shall be surrendered to Landlord in its then
as-is condition.
3. Exclusions from Operating Expenses.
(a) Notwithstanding anything to the contrary in the
definition of Operating Expenses and Taxes set forth in the Lease, Operating
Expenses and Taxes shall not include the following, except to the extent
specifically permitted by a specific exception to the following:
(i) Expenses in connection with services or other
benefits which are provided to some tenants in the Building but not to
Tenant or for which Tenant is charged for directly;
(ii) Costs incurred by Landlord due to the
violation by Landlord or any tenant of the terms and conditions of any
lease of space in the Building;
(iii) Amounts paid to Landlord or to subsidiaries
or affiliates of Landlord for goods and/or services in or to the
Building to the extent such amounts exceed the costs of such goods
and/or services rendered by unaffiliated third parties on a
competitive basis;
(iv) Landlord's general corporate overhead and
general and administrative expenses;
(v) Any compensation paid to clerks, attendants
or other persons in commercial concessions operated by Landlord or in
the parking garage of the Building or wherever Tenant is granted its
parking privileges and/or all fees paid to any parking facility
operator (on or off Site);
(vi) The cost of any electric power directly used
by any other tenant in the Building;
(vii) Services and utilities provided, taxes
attributable to, and costs incurred in connection with the operation
of the retail and restaurant operations in the Building, except to the
extent that (xx) the square footage of
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such operations is included in the rentable square feet of the
Building for purposes of calculating Tenant's proportion of increases
in real estate taxes and Operating Expenses and (yy) the services,
utility and tax costs for such operations do not materially exceed the
cost which would have been incurred had the retail and/or restaurant
space been used for general office purposes;
(viii) Costs incurred in connection with upgrading
the Building to comply with disability, life, fire and safety codes,
ordinances, statutes, or other laws in effect prior to the
Commencement Date, including, without limitation, the ADA, including
penalties or damages incurred due to such non-compliance;
(ix) Tax penalties incurred as a result of
Landlord's negligence, inability or unwillingness to make payments
and/or to file any tax or informational returns when due;
(x) Costs arising from the gross negligence or
fault of other tenants or Landlord or its agents, or any vendors,
contractors, or providers of materials or services selected, hired or
engaged by Landlord or its agents including, without limitation, the
selection of Building materials;
(xi) Notwithstanding any contrary provision of the
Lease, including, without limitation, any provision relating to
capital expenditures, any and all costs arising from the presence of
hazardous materials or substances (as defined by Applicable Laws in
effect on the date the Lease is executed) in or about the Premises,
the Building or the Site including, without limitation, hazardous
substances in the ground water or soil, not placed in the Premises,
the Building or the Site by Tenant;
(xii) Costs arising from Landlord's charitable or
political contributions;
(xiii) Costs arising from latent defects in the
base, shell or core of the Building or improvements installed by
Landlord or repair thereof;
(xiv) Costs for sculpture, paintings or other
objects of art;
(xv) Costs (including in connection therewith all
attorneys' fees and costs of settlement judgments and payments in lieu
thereof) arising from claims, disputes or potential disputes in
connection with potential or actual claims litigation or arbitrations
pertaining to Landlord and/or the Building and/or the Site;
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(xvi) Costs associated with the operation of the
business of the partnership or entity which constitutes Landlord as
the same are distinguished from the costs of operation of the
Building, including partnership accounting (as distinguished from
Building accounting) and legal matters, costs of defending any
lawsuits with any mortgagee (except as the actions of Tenant may be in
issue), costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Building, costs of any
disputes between Landlord and its employees (if any) not engaged in
Building operation, disputes of Landlord with Building management, or
outside fees paid in connection with disputes with other tenants;
(xvii) Costs of any "tap fees" or any sewer or water
connection fees for the benefit of any particular tenant in the
Building;
(xviii) Costs incurred in connection with any
environmental clean-up, response action, or remediation on, in, under
or about the Premises or the Building, including but not limited to,
costs and expenses associated with the defense, administration,
settlement, monitoring or management thereof;
(xix) Any expenses incurred by Landlord for use of
any portions of the.Building to accommodate events including, but not
limited to shows, promotions, kiosks, displays, filming, photography,
private events or parties, ceremonies, and advertising beyond the
normal expenses otherwise attributable to providing Building services,
such as lighting and HVAC to such public portions of the Building in
normal Building operations during standard Building hours of
operation;
(xx) Any entertainment or dining expenses for any
purpose;
(xxi) Any flowers, gifts, balloons, etc. provided
to any entity whatsoever, to include, but not limited to, Tenant,
other tenants, employees, vendors, contractors, prospective tenants
and agents;
(xxii) Any cleaning provided to any space in the
Building other than the common areas thereof;
(xxiii) Any "validated" parking for any entity;
(xxiv) Any "finders fees", brokerage commissions,
job placement costs or job advertising cost, other than with respect
to employees stationed at the Building;
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(xxv) The cost of any magazine, newspaper, trade or
other subscriptions;
(xxvi) Intentionally omitted;
(xxvii) The cost of any "tenant relations" parties,
events or promotion not consented to by an authorized representative
of Tenant in writing;
(xxviii) "In-house" legal and/or accounting fees; and
(xxix) Any other expenses which, in accordance with
generally accepted accounting principles, consistently applied, would
not normally be treated as Operating Expenses by comparable landlords
of Comparable Buildings.
(b) In the event any facilities, services or utilities
used in connection with the Building are provided from another building owned
or operated by Landlord or vice versa or jointly to one or more of Landlord's
buildings, the costs incurred by Landlord in connection therewith shall be
allocated to Operating Expenses by Landlord on or reasonably equitable basis.
(c) Landlord further agrees that since one of the
purposes of Operating Expenses and the gross up provision is to allow Landlord
to require Tenant to pay for the costs attributable to its Premises, Landlord
agrees that (i) Landlord will not collect or be entitled to collect Operating
Expenses from all of its tenants in an amount which is in excess of one hundred
percent (100%) of the Operating Expenses actually paid by Landlord in
connection with the operation of the Building, and (ii) Landlord shall make no
profit from Landlord's collections of Operating Expenses. All assessments and
premiums which are not specifically charged to Tenant because of what Tenant
has done, which are payable over more than one (1) year and/or are allocable to
more than one (1) year, shall, for purposes of calculating Tenant's proportion
on increases in real estate taxes, be deemed paid by Landlord in the maximum
number of installments permitted by law.
(d) Each time Landlord provides Tenant with an actual
and/or estimated statement of Operating Expenses, such statement shall be
itemized on a line item by line item basis, showing the applicable expense for
the applicable year and the year prior to the applicable year.
4. Audit Right. In the event of any dispute regarding the amount
due as Tenant's Pro Rata Share of Taxes or Operating Expenses pursuant to Lease
Sections 3.4 or 3.5, Tenant shall have the right, after reasonable notice and
at reasonable times, to inspect and photocopy Landlord's accounting records at
Landlord's office. If, after such inspection and photocopying, Tenant
continues to dispute the amount of its Pro Rata Share of Taxes or Operating
Expenses, Tenant, or an agent which shall be a Certified
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Public Accountant designated by Tenant, shall be entitled to audit and/or
review Landlord's records to determine the proper amount of its Pro Rata Share
of Taxes or Operating Expenses. If such audit or review reveals that Landlord
has overcharged Tenant, then within thirty (30) days after the results of such
audit are made available to Landlord, Landlord shall reimburse Tenant the
amount of such overcharge plus interest thereon at the Interest Rate. If the
audit reveals that Tenant was undercharged, then within thirty (30) days after
the results of the audit are made available to Tenant, Tenant shall reimburse
Landlord the amount of such undercharge plus interest thereon at the Interest
Rate. If Landlord desires to contest such audit results, Landlord may do so by
submitting the results of the audit to arbitration pursuant to the then-current
rules and procedures of the American Arbitration Association within thirty (30)
days of receipt of the results of the audit, and the arbitration shall be final
and binding upon Landlord and Tenant. Tenant agrees to pay the cost of such
audit, provided that if the audit reveals that Landlord's determination of
Tenant's Pro Rata Share of Taxes or Operating Expenses as set forth in any
statement sent to Tenant was in error in Landlord's favor by more than four
percent (4%), Landlord shall pay the cost of such audit. Landlord shall be
required to maintain records of all Taxes and Operating Expenses for the
entirety of the three-year period ("Review Period") following Landlord's
delivery to Tenant of each statement setting forth Tenant's Pro Rata Share
thereof. The payment by Tenant of any amounts pursuant to Lease Sections 3.4
or 3.5 shall not preclude Tenant from questioning the correctness of any
statement provided by Landlord at any time during the Review Period, but the
failure of Tenant to object thereto prior to the expiration of the Review
Period shall be conclusively deemed Tenant's approval of the statement.
Notwithstanding anything herein to the contrary, Tenant shall have no right to
audit during any time when Tenant is not current with regard to all amounts due
under this Lease, including any disputed amounts.
5. Intentionally Omitted.
6. Removal of Property. Notwithstanding anything to the contrary
set forth in the Lease, all articles of personal property and all business and
trade fixtures, machinery and equipment, furniture and movable partitions owned
by Tenant or installed by or on behalf of Tenant in the Premises shall remain
the property of Tenant, and may be removed by Tenant at any time during the
Term of the Lease as long as Tenant is not in default hereunder with any
applicable cure period having expired. If Tenant fails to remove all of its
effects from the Premises upon the expiration or earlier termination of the
Lease for any cause whatsoever, Landlord may, at its option, any time after
five (5) days' written notice to Tenant of its intention to remove such
effects, remove, store, dispose of or sell such effects in any manner that
Landlord shall choose without liability to Tenant for loss thereof, and Tenant
shall pay Landlord upon demand any and all expenses incurred in connection with
such removal, including court costs, attorneys' fees, and
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reasonable storage charges incurred while such effects were in Landlord's
possession.
7. Abatement of Rent When Tenant Is Prevented From Using
Premises. In the event that Tenant is reasonably prevented from using, and
does not use, the Premises or any portion thereof, for three (3) consecutive
business days or ten (10) days in any twelve (12) month period (the
"Eligibility Period") as a result of (a) any damage or destruction to the
Premises, (b) any repair, maintenance or alteration performed by Landlord after
the Commencement Date and required by the Lease, which prevents Tenant's use of
the Premises, (c) any failure by Landlord to provide Tenant with services or
access to the Premises for five (5) days following notice to Landlord, (d)
because of an eminent domain proceeding, or (e) because of the presence of
hazardous substances in, on or around the Premises, the Building or the Site
which could, in Tenant's business judgment and taking into account the
standards, guidances and recommendations included in applicable laws with
respect to hazardous substances, pose a health risk to occupants of the
Premises, then Tenant's Rent shall be abated or reduced, as the case may be,
after expiration of the Eligibility Period for such time that Tenant continues
to be so prevented from using, and does not use, the Premises or a portion
thereof, in the proportion that the rentable area of the portion of the
Premises that Tenant is prevented from using, and does not use, bears to the
total rentable area of the Premises. However, in the event that Tenant is
reasonably prevented from conducting, and does not conduct, its business in any
portion of the Premises for a period of time in excess of the Eligibility
Period, and the remaining portion of the Premises is not sufficient to allow
Tenant to effectively conduct its business therein, and if Tenant does not
conduct its business from such remaining portion, then for such time after
expiration of the Eligibility Period during which Tenant is so prevented from
effectively conducting its business therein, the Rent for the entire Premises
shall be abated; provided, however, if Tenant reoccupies and conducts its
business from any portion of the Premises during such period, the Rent
allocable to such reoccupied portion, based on the proportion that the rentable
area of such reoccupied portion of the Premises bears to the total rentable
area of the Premises, shall be payable by Tenant from the date such business
operations commence. If Tenant's right to abatement occurs because of an
eminent domain taking and/or because of damage or destruction to the Premises
or Tenant's property, Tenant's abatement period shall continue until Tenant has
been given sufficient time and sufficient access to the Premises to rebuild the
portion of the Premises it is required to rebuild, to install its property,
furniture, fixtures, and equipment to the extent the same shall have been
removed as a result of such damage or destruction and to move in over one (1)
weekend. To the extent Tenant is entitled to abatement because of an event
covered by Lease Articles XIX (Fire or Casualty) or XVII (Condemnation) then
the Eligibility Period shall not be applicable.
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8. Insurance Obligations, Allocation of Risks and Minimizing
Duplication of Insurance Coverage. Notwithstanding anything to the contrary
set forth in the Lease, because Landlord is required to maintain insurance on
the Building and Tenant compensates Landlord for such insurance as part of
Tenant's pro rata share of expenses and because of the existence of waivers of
subrogation set forth in Lease Section 18.3, Landlord hereby indemnifies and
holds Tenant harmless from any loss, cost, liability, damage or expense
(including, but not limited to penalties, fines and actual attorneys' fees and
costs) to any property outside of the Premises to the extent such loss, costs,
liability, damage or expenses are covered by such insurance, even if resulting
from the negligent acts, omissions, or willful misconduct of Tenant or those of
its agents, contractors, servants, employees or licensees. Similarly, since
Tenant must carry insurance pursuant to Lease Article XVIII (Insurance) to
cover its personal property within the Premises, Tenant hereby indemnifies and
holds Landlord harmless from any loss, cost, liability, damage or expense
(including, but not limited to, penalties, fines and actual attorneys' fees and
costs) to any property within the Premises to the extent such loss, costs,
liability, damage or expenses are covered by such insurance, even if resulting
from the negligent acts, omissions or willful misconduct of Landlord or those
of its agents, contractors, servants, employees or licensees. In the event the
Premises and/ or the Building are damaged or destroyed and such damage or
destruction is covered by insurance obtained by Landlord and not covered by
insurance obtained by Tenant, Landlord shall use the proceeds of its insurance
to repair the damage or destruction to the Premises and/or the Building,
subject to any rights either Landlord or Tenant may have to terminate the Lease
in the event such damage or destruction occurs.
9. Entry by Landlord. Notwithstanding anything to the contrary
set forth in the Lease, Landlord and/or those acting on Landlord's behalf may
only enter the Premises upon reasonable prior notice to Tenant, except in cases
of emergency, in which case no such notice shall be required. In any event,
any such entry shall be accomplished as expeditiously as reasonably possible
and in a manner so as to cause as little interference to Tenant as reasonably
possible.
10. Access to Building and Parking. Tenant shall be granted
access to the Building, the Premises, and the parking provided to the Building
twenty-four (24) hours per day, seven (7) days per week, every day of the year.
11. Default by Landlord. Landlord shall be in default in the
performance of any obligation required to be performed by Landlord under the
Lease if Landlord has failed to perform such obligation within thirty (30) days
after the receipt of notice from Tenant specifying in detail Landlord's failure
to perform; provided, however, that if the nature of Landlord's obligation is
such that more than thirty (30) calendar days are required for its
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performance, Landlord shall not be deemed in default if it shall commence such
performance within thirty (30) days and thereafter diligently pursues the same
to completion. Upon any such default by Landlord, Tenant may exercise any of
its rights provided in law or at equity and shall have the right, but not the
obligation, to cure any such default by Landlord if Landlord falls to commence
to cure such default within the prescribed cure period and thereafter
diligently prosecute such cure to completion .
12. Landlord BankruptcY Proceeding. In the event that the
obligations of Landlord under this Lease are not performed during the pendency
of a bankruptcy or insolvency proceeding involving the Landlord as the debtor,
or following the rejection of this Lease in accordance with Section 365 of the
United States Bankruptcy Code, then notwithstanding any provision of this Lease
to the contrary, Tenant shall have the right to set off against Rents next due
and owing under this Lease (a) any and all damages caused by such
non-performance of Landlord's obligations under this Lease by Landlord,
debtor-in-possession, or the bankruptcy trustee, and (b) any and all damages
caused by the non-performance of Landlord's obligations under this Lease
following any rejection of this Lease in accordance with Section 365 of the
United States Bankruptcy Code.
13. Non-Disturbance Agreement.
(a) Landlord represents and warrants that there are no
ground lessors, mortgage holders or lien holders on the real property of which
the Premises form a part (each, a "Superior Mortgagee") in existence as of the
execution and delivery of this Lease.
(b) Landlord agrees to provide Tenant with commercially
reasonable non-disturbance agreement(s) in favor of Tenant from any Superior
Mortgagee(s) of Landlord who later come(s) into existence at any time prior to
the expiration of the Term of the Lease, as it may be extended, in
consideration of, and as a condition precedent to, Tenant's agreement to be
bound by Lease Article XXV (Subordination). Said non-disturbance agreements
shall be in recordable form and may be recorded at Tenant's election and
expense.
14. Estoppel Certificate. Landlord hereby agrees to provide to
Tenant an estoppel certificate signed by Landlord, containing the same types of
information, and within the same periods of time, as are set forth in Article
XXXIII (Estoppel Certificate), except such changes as are reasonably necessary
to reflect that the estoppel certificate is being granted and signed by
Landlord to Tenant or Tenant's lender, assignee or sublessee, rather than from
Tenant to Landlord or to a lender or purchaser.
15. Rules and Regulations. Landlord agrees that the Rules and
Regulations of the Building shall not be changed, revised or
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enforced in any unreasonable way by Landlord, nor enforced or changed by
Landlord in such a way as to interfere with the purposes permitted under the
Lease. In the event any other tenant or occupant of the Building fails to
comply with the Rules and Regulations, and such non-compliance unreasonably
interferes with Tenant's use of the Premises, Landlord shall use reasonable
efforts to cause such other tenants and/or occupants comply with the Rules and
Regulations.
16. Tenant's Right to Make Repairs. Notwithstanding any provision
set forth in the Lease to the contrary, if Tenant provides written notice (or
oral notice in the event of an emergency such as damage or destruction to or of
a structural component, or any Building Systems or telecommunications system of
or in the Premises or the Building (including, but not limited to, damage to
the roof, or exterior window or door)) to Landlord of an event or circumstance
which requires the action of Landlord with respect to repair and/or
maintenance, and Landlord fails to provide such action within a reasonable
period of time, given the circumstances, after the receipt of such notice, but
in any event not later than twenty-one (21) days after receipt of such notice,
then Tenant may proceed to take the required action upon delivery of an
additional ten (10) business days' notice to Landlord specifying that Tenant is
taking such required action (provided, however, that such additional notice
shall not be required in the event of an emergency), and if such action was
required under the terms of the Lease to be taken by Landlord and was not taken
by Landlord within such ten (10) day period, then Tenant shall be entitled to
prompt reimbursement by Landlord of Tenant's reasonable costs and expenses in
taking such action plus interest thereon at the Interest Rate. The "Interest
Rate" is defined as the lesser of (a) the rate publicly announced from time to
time, by the largest (as measured by deposits) chartered bank operating in
California, as its prime rate, reference rate or other similar benchmark rate,
plus two percent (2%) or (b) the maximum rate permitted by law. In the event
Tenant takes such action, and such work will affect the Building Systems or the
telecommunication system (including, without limitation, any intrabuilding
network cable) or the structural integrity of the Building, Tenant shall use
only those contractors used by Landlord in the Building for work on such
systems unless such contractors are unwilling or unable to perform, or timely
perform, such work, in which event Tenant may utilize the services of any other
qualified contractor which normally and regularly performs similar work in
comparable buildings. Furthermore, if Landlord does not deliver a detailed
written objection to Tenant within thirty (30) days after receipt of an invoice
by Tenant of its costs of taking action which Tenant claims should have been
taken by Landlord, or if Landlord delivers to Tenant, within thirty (30) days
after receipt of Tenant's invoice, a written objection to the payment of such
invoice, setting forth with reasonable particularity Landlord's reasons for its
claim that such action did not have to be taken by Landlord pursuant to the
terms of the Lease or that the charges are excessive (in which case
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Landlord shall pay the amount it contends would not have been excessive), or
that the repairs were not performed correctly, then in either such case Tenant
shall not be entitled to any deduction from Rent, but as Tenant's sole remedy,
Tenant may proceed to claim a default by Landlord or, if elected by either
Landlord or Tenant, the matter shall proceed to resolution by the selection of
an arbitrator to resolve the dispute, which arbitrator shall be selected and
qualified pursuant to the then current procedures and practices of the American
Arbitration Association, and whose costs shall be paid for by the losing party,
unless it is not clear that there is a "losing party," in which event the costs
of arbitration shall be shared equally. If Landlord fails to pay Tenant the
amount of any award made to Tenant in any such arbitration proceeding within
thirty (30) days after such award, then Tenant shall be entitled to deduct from
the Rent payable by Tenant under the Lease the unpaid amount of any such award.
17. Alterations and Improvements. Tenant is granted the right to
make non-structural alterations and improvements to the Premises, as long as
(a) Tenant pays for the entire cost of such alterations and improvements, (b)
Tenant agrees to remove said alterations and improvements upon the expiration
or termination of the Lease, if requested by Landlord at the time the
alterations and improvements are approved by Landlord, and (c) such alterations
and improvements will not adversely affect the structural integrity of the
Premises and/or the Building. Any time Tenant proposes to make such
alterations and/or improvements, Tenant shall provide Landlord with ten (10)
days' notice of the proposed alterations and/or improvements, together with the
plans and specifications, and Landlord shall grant its approval within such ten
(10) day period, unless Landlord reasonably determines that such alterations
and/or improvements would adversely affect the structural integrity of the
Premises and/or the Building or would [?] affect the exterior appearance of the
Building.
18. Consent/Duty to Act Reasonably. Except for any reference to
the words "sole" or "absolute" and except for matters (a) which involve
security for the Building, (b) which will have an adverse effect on the (i)
structural integrity of the Building or (ii) the Building's plumbing, heating,
life safety, ventilating, air-conditioning, mechanical or electrical systems
("Building Systems"), or (c) which could affect the exterior appearance of the
Building, whereupon in each such case Landlord's duty is to act in good faith
and in compliance with the Lease, any time the consent of Landlord or Tenant is
required, such consent shall not be unreasonably withheld, conditioned or
delayed.
19. Right to Terminate.
(a) Notwithstanding anything in either Lease Article XIX
(Fire or Casualty) or XVII (Condemnation) to the contrary, and except as
expressly set forth in Subsection (b) immediately below,
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in the event that Tenant is notified or becomes aware of the fact that, within
nine (9) months of any of the following:
(i) damage or destruction to the Premises and/or
the Building or any part thereof so as to interfere substantially with
Tenant's use of the Premises and/or the Building;
(ii) a taking by eminent domain or exercise of
other governmental authority of the Premises and/or the Building or
any part thereof so as to interfere substantially with Tenant's use of
the Premises and/or the Building;
(iii) the inability of Landlord to provide services
to the Premises and/or the Building so as to interfere substantially
with Tenant's use of the Premises and/or the Building; or
(iv) any discovery of hazardous substances in, on
or around the Premises, the Building not placed in, on or around the
Premises, the Building by Tenant, that may, considering the nature and
amount of the substances involved, interfere with Tenant's use of the
Premises (each of the items set forth in provision (a)(i), (ii), (iii)
and (iv) being referred to herein as a "Trigger Event"),
Tenant cannot be given reasonable use of, and access to, a fully repaired,
restored, safe and healthful Premises and Building (except for minor
"punch-list" items which will be repaired promptly thereafter), and the
utilities and services pertaining to the Premises and the Building, all
suitable for the efficient conduct of Tenant's business therefrom, then Tenant
may elect to exercise an ongoing right to terminate the Lease upon ten (10)
days' written notice sent to Landlord at any time within a period of ninety
(90) days following the particular Trigger Event. If Landlord can deliver a
fully repaired, restored, safe and healthful Premises within nine (9) months of
the occurrence of such Trigger
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Event, then such termination shall be deemed rescinded without prejudice to any
future exercise of such termination right.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Lease Addendum on the date first above written.
TENANT:
UNITED RESTAURANTS, INC.
T/A GRAND HAVANA ROOM
By: /s/
Its:
LANDLORD:
WASHINGTON REAL ESTATE
INVESTMENT TRUST
By: /s/
Its:
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