Exhibit 10.12
OFFICE LEASE
THE XXXXXX COMPANY,
A COLORADO LIMITED PARTNERSHIP
as Landlord
AND
GOOD TIMES RESTAURANTS, INC
A NEVADA CORPORATION
as Tenant
INDEX TO OFFICE LEASE
Section Page No.
DEFINITIONS 3
TERM 5
RENT 6
INSURANCE 7
OPERATING EXPENSES 8
REPAIRS AND MAINTENANCE 9
FIXTURES, PERSONAL PROPERTY AND
ALTERATIONS, PAYMENT OF TAXES 10
USE OF PREMISES 11
DAMAGE AND DESTRUCTION 13
EMINENT DOMAIN 14
DEFAULT 15
ASSIGNMENT AND SUBLETTING 16
ESTOPPEL CERTIFICATE, ATTORNMENT AND
SUBORDINATION 18
NOTICES 19
SUCCESSORS BOUND 19
TENANT FINISH/ MOVING ALLOWANCE
REIMBURSEMENT 19
MISCELLANEOUS 20
OFFICE LEASE
THIS OFFICE LEASE ("Lease"), dated January 1, 1998, is made by and
between THE XXXXXX COMPANY, a Colorado limited partnership ("Landlord") and
GOOD TIMES RESTAURANTS, INC., a Nevada corporation ("Tenant") for office space
in 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, 00000 ("Building") located in the
City of Golden, County of Jefferson, State of Colorado, described more
particularly on the legal description attached hereto as Exhibit "A" and
incorporated herein by this reference.
In consideration of the mutual covenants contained in this Lease,
Landlord and Tenant agree as follows:
1. DEFINED TERMS, EXHIBITS, PREMISES, COMMON AREAS, LANDLORD'S RESERVED
RIGHTS AND RENTABLE AREA
1.01 Defined Terms.
(a) Annual Base Rent (which includes ordinary common area
maintenance costs :
Years 1 through 3:
$43,628.00 per year ($13.00 x 3356 square feet =
$43,628.00)
(b) Building: The improvements located on the property
described on Exhibit "A".
(c) Common Areas: Areas within and without the Building
used by Landlord, Tenant and other tenants, including without limitation,
ingress, egress, parking areas, lobbies, hallways, restrooms, breakrooms,
fitness room, conference room, meeting rooms, and work spaces; provided,
however certain areas of the Building shall be excluded from Tenant's use
during the term hereof, including, without limitation the Board of Directors
meeting room (except for Tenant's use for Board of Directors meetings at
times approved in advance by Landlord) and other areas as directed from
time-to-time by Landlord. Tenant's use of Common Areas shall be subject to
the rules, regulations and requirements promulgated by Landlord, including
without limitation, use of the fitness room.
(d) Commencement Date: April 1, 1998.
(e) Landlord: The Xxxxxx Company, a Colorado limited
partnership.
(f) Lease Year: Each twelve (12) month period commencing
on April 1, 1998 and ending March 31 of the following year.
(g) Monthly Base Rent: Month 1 through 36: $3,636.00.
(h) Permitted Uses: Office and administrative uses.
(i) Premises: The usable space shown on the plans
attached hereto as Exhibit "B".
(j) Premises Address:
Suite: 100
Street Address: 000 Xxxxxxxxx Xxxxxx
City and State: Xxxxxx, Xxxxxxxx 00000
County: Jefferson
(k) Prepaid Rent: First Month's Rent: N/A
(l) Rentable Square Feet of the Building: N/A
(m) Rentable Square Feet of Premises: 3,356
(n) Scheduled Term Commencement Date: April 1, 1998.
(o) Initial Security Deposit: N/A
(p) Tenant's Address prior to Term Commencement Date:
0000 Xxxxx Xxxxx, Xxx. 000
Xxxxxxxxxxx, Xxxxxxxx, 00000
(q) Term: Twelve(12)months commencing on the Commencement
Date, with options to extend the Term for two additional 12 month periods
pursuant to Article 2.02 hereinbelow.
The foregoing provisions constitute the defined terms ("Defined Terms").
Each reference in this Lease to Article 1.0 I or the Defined Terms shall be
construed to incorporate the applicable Defined Terms. Other terms may be
defined hereinbelow.
1.02. Exhibits. The Exhibits hereinbelow are or will be attached
to this Lease after the signature and by reference thereto are incorporated
herein:
Exhibit A Building Legal Description
Exhibit B Premises Floor Plan
1.03. Premises. Landlord leases the Premises to Tenant, and
Tenant leases the Premises from Landlord, subject to the provisions of this
Lease ("Option"). If the Tenant fails to exercise either option, Tenant must
vacate the Premises at the expiration of the then current Term. In the event
the Tenant falls to exercise the first option to extend the Term, the second
option -ranted to Tenant hereunder shall immediately terminate and be null and
void.
2.03 Early Termination. Notwithstanding, any other provision of
this Lease, in the event Tenant shall sell substantially all of its assets or
merge with a third party entity, which sale and merger occurs during extended
Term of this Lease, Tenant may early terminate this Lease upon ninety (90)
days prior written notice to Landlord.
3. RENT
3.01. Base Rent. The annual base rent shall be the Annual Base
Rent set forth in Article 1.01(a), payable in equal monthly installment equal
to the Monthly Base Rent set forth in Article 1.01 Tenant shall pay the
monthly Base Rent to Landlord in advance upon the first day of each calendar
month of the Term, starting on the Commencement Date at Landlord's address or
at such other place designated by Landlord in a notice to Tenant, without any
prior demand therefore and without any deduction, abatement, or set off
whatsoever. If the Term shall commence or end on a day other than the first
day of a calendar month, then Tenant shall pay, upon the commencement date of
the Term and first day of the last calendar month, a pro rata portion of the
Monthly Base Rent, prorated on a per them basis, with respect to the portions
of the fractional calendar month included in the Term. Upon executing this
Lease, Tenant shall pay the first full Monthly Base Rent owing hereunder along
with Tenant's Security Deposit as provided in Article 3.03 below.
3.02. Late Payment. If any installment of Monthly Base Rent is
not paid within ten (10) days after the same is due hereunder, Tenant shall
pay to Landlord a late payment charge equal to five percent (5%) of the amount
of such delinquent payment of Monthly Base Rent in addition to the installment
of Monthly Base Rent then owing regardless of whether or not a notice of
default or notice or termination has been given by Landlord. This provision
shall not relieve Tenant from payment of Monthly Base Rent at the time and in
the manner herein specified.
3.03. Security Deposit. Upon executing this Lease, Tenant shall
not be required to deposit any Security Deposit with Landlord. However, at
any time during the Lease if Tenant shall be in default of any monetary or
non-monetary obligation hereunder, Landlord may require the Tenant to pay to
the Landlord a Security Deposit equal to two (2) months of Monthly Base Rent.
The Security Deposit shall secure Tenant's obligations under this Lease to pay
Monthly Base Rent and other monetary amounts owed, to maintain the Premises
and repair damages thereto, to insure surrender of the Premises to Landlord in
clean condition and repair upon termination of this Lease, and to discharge
Tenant's other obligations hereunder. Landlord may use and commingle the
Security Deposit with other funds of Landlord. No interest shall accrue nor
be payable by Landlord to 'I'enant for the Security Deposit. If Tenant fails
to perform Tenant's obligations hereunder, Landlord may, but without any
obligation to do so, apply all or any portion of the Security Deposit toward
the Tenant's unfulfilled obligations. If Landlord does so apply any portion
of the Security Deposit, Tenant, upon dei-nand by Landlord, shall immediately
pay Landlord a sufficient amount in cash to restore the Security Deposit to
the full original amount. Tenant's failure to forthwith remit to Landlord a
sufficient amount in cash to restore the Security Deposit to the original sum
deposited within five (5) days after receipt of such demand, shall constitute
an Event of Default. Upon termination of this Lease. if Tenant has then
performed all of Tenant's obligations hereunder, Landlord shall return
Security Deposit to Tenant. If Landlord sells or otherwise transfers
Landlord's rights or interest Xxxxxx this Lease, Landlord may deliver the
Security Deposit to the transferee, whereupon Landlord shall be released from
any further liability toTenant with respect to the Security Deposit.
4. INSURANCE
4.01. All Risk Coverage. DLirina the Term, Landlord shall
procure and maintain in full force and effect with respect to the Premises a
policy or policies of all risk insurance with deductible in an amount as
Landlord may unilaterally determine, (including sprinkler, vandalism and
malicious mischief coverage, and any other endorsements required by the holder
of any fee or leasehold mortgage) in an amount equal to one hundred percent
(100%) of the full insurance replacement value (replacement cost new,
including debris removal, and demolition) thereof.
4.02. Public Liability. Tenant shall, at its own cost and
expense, keep and maintain in full force during the Term a policy or policies
of comprehensive public liability insurance, written by an insurance company
approved by Landlord in the form customary to the locality, insuring Tenant's
activities with respect to the Premises and/or Building against loss, damage,
or liability for personal injury or death of any person or loss or damage
toproperty occurring in, upon or about the Premises covering bodily injury in
the amounts of Three Million and No/100 Dollars $3,000,000.00) per person and
Three Million and No/100 Dollars ($3,000,000.00) per occurrence and covering
property damage in the amount of One Million and No/100 ($1,000,000.00);
provided, however, that if at any time during the Term, Tenant shall have in
full force and effect a blanket policy of public liability insurance with the
same coverage for the Premises as described above, as well as coverage of
other premises and properties of Tenant, or in which Tenant has some interest,
such blanket insurance shall satisfy the requirement hereof.
4.03. Rental Abatement Insurance. Tenant shall keep and maintain
in full force and effect during the Term, rental abatement insurance against
abatement or loss of rent in case of fire or other casualty, in an amount at
least equal to the amount of the Monthly Base Rent payable by Tenant during
one year next ensuing, as reasonably determined by Landlord.
4.04. Insurance Certificates. Landlord shall be named as an
additional insured on all such policies set forth in Article 4. Tenant shall
furnish to Landlord, upon the date of commencement of this Lease and
thereafter as requested by Landlord, a certificate of insurance issued by the
insurance carrier of each policy of insurance carried by Tenant pursuant
hereto. Said certificates shall expressly provide that such policies shall
not be cancelable or subject to reduction of coverage or otherwise be subject
to modification except after thirty (30) days from prior written notice to all
the parties names as insured. Landlord, its Successors and assigns, and any
nominee of Landlord holding any interest in the Premises and BLIlidin(y.
including, without limitation, any ground lessor and the holder of any fee or
leasehold mort-age shall be names as insureds under each such policy or
insurance maintained by Tenant pursuant to this Lease.
4.05. Tenant's Failure. If Tenant fails to maintain any insurance
required in this lease, Tenant shall be liable for any loss or cost resulting
from said failure. This Article 4.05 shall not be deemed to be a waiver of
any Landlord's rights and remedies under any other section of this Lease.
4.06. Waiver of Subrogation. Any policy or policies of fire,
extended coverage or similar casualty insurance, which either party obtains in
connection with the Premises, or Tenant's personal property therein, shall, to
the extent the same can be obtained without undue expense, include a clause or
endorsement denying the insurer any rights of subrogation against the other
party to the extent rights have been waived by the insured prior to the
occurrence of injury or loss. Landlord and Tenant waive any rights of
recovery against the other for injury or loss due to hazards covered by
insurance containing such a waiver of subrogation clause or endorsement to the
extent of the injury or loss covered thereby.
4.07. Tenant's Property and Fixtures. Tenant shall assume the risk
of damage to any furniture, equipment, machinery goods, supplies, or fixtures
which are to remain the property of Tenant or as to which Tenant retains the
right of removal from the Premises.
4.08. Indemnification of Landlord. Tenant shall indemnify and hold
Landlord harmless from and against (i) any and all liability, penalties,
losses, damages, costs and expenses, demands, causes of action, claims, or
judgments arising from or growing out of any injury to any person or persons
or any damace to any property as a result of any accident or other occurrence
during the Term occasioned in any way as a result of Tenant's or Tenant's
officers, employees, agents, servants, subtenants, concessionaires, licensees,
contractors or invitees use, maintenance, occupation or operation of the
Premises during the Term, and (ii) from and against all legal costs and
charges, including attorneys' fees, incurred in or about any of such matters
and the defense of any action arising out of the same or in discharging the
Building, the Premises and Common Areas or any part thereof from any and all
liens, charges or judgments which may accrue or be placed thereof by reason of
any act or omission of the Tenant; provided, however, that Tenant shall not be
required to indemnify Landlord for any damage or injury of any kind arising as
the result of Landlord'swillful misconduct.
5. OPERATING EXPENSES
5.01. Services and Utilities. So long as Tenant is not in default
under this Lease, Landlord shall provide:(i) to the Premises during normal
business hours, as defined from time-to-time by Landlord, electricity, gas,
water, lighting, janitorial services, elevator services, heating, ventilating,
and air conditioning and other Building, services required in Landlord's
reasonable judgment for the comfortable use and occupancy of the Premises;
and, (ii) to the Common Areas durin- the normal business hours, utilities and
maintenance as required in Landlord's reasonable judgement for the comfortable
use and occupancy thereof. Landlord shall not be liable for, and Tenant shall
not be entitled to, any reduction or abatement of Monthly Base Rent on account
of any failure on the part of Landlord to delivery the services and utilities
provided in this Lease unless the same results from the willful misconduct of
Landlord, nor shall Landlord be liable under any circumstances for any and all
loss or injury to property, however occurring, incidental to any failure to
furnish any utilities or services.
5.02. Special Services.
(a) Additional Services. In the event Landlord provides
utilities, elevator, heating, air conditioning, and/or janitorial services to
Tenant beyond the current services related to the operation and management of
the Building or at times other than during the business hours, Tenant shall
pay to Landlord for such special services as Additional Rent (i) the cost of
such services, plus (ii) a reasonable fee to Landlord for providing such
services in the amount of ten percent (I 0%) of such costs. Any non-routine
or additional janitorial services of Building areas such as lunchrooms, test
kitchen, conference rooms, etc. which result solely from Tenant's
extraordinary use thereof, shall be on a special basis (except with respectto
the removal of trash from trash receptacles or cleaning incidental to normal
cleaning).
(b) Utility Consumption. If Tenant is likely to or does
consume quantities of electricity, water, or gas in excess of the amount
customarily consumed by users of office space, Landlord shall have the right,
at Tenant's sole cost and expense, to install separate metering for such
utilities or to separately charge Tenant for any quantity of such utilities
consumed by Tenant beyond the amounts cutomarily consumed by office users.
Any such charges made by Landlord to Tenant shall be reasonably deten-nined by
Landlord and shall promptly be paid by Tenant to Landlord as Additional Rent.
Notwithstanding anything to the contrary contained herein, Tenant shall not
consume quantities of such utilities in excess of the amounts customarily
consumed by users of office space without obtaining Landlord's prior written
consent thereto.
6. REPAIRS AND MAINTENANCE
6.01. Repairs and Maintenance. Tenant shall, at Tenant's
own expense, maintain the Premises in a clean and safe condition. Ordinary
repairs shall be performed by Tenant at its own expense, except that Landlord
shall keep and maintain all walls, ceilings, and subfloors of the Premises in
good repair. Notwithstandina the provisions hereof, however, Tenant shall be
responsible for directly reimbursing Landlord for the cost of any repairs
performed by Landlord to the extent that such repairs are necessitated by
damage caused by Tenant's negligence or willful misconduct.
6.02. Inspection of Premises. Landlord, governmental
agencies and appropriate authorities, as applicable, at reasonable times, may
enter the Premises to complete construction undertaken by Landlord on the
Premises or Building; to inspect, clean or repair the same; to inspect the
performance by Tenant of the terms and conditions hereof and to affix
reasonable signs and displays; to show the Premises to prospective purchasers,
tenants and lenders, and for all other purposes as Landlord shall reasonably
deem necessary.
6.03. Liens. Tenant shall promptly pay and discharge all
claims for work or labor done, supplies furnished or services rendered at the
request of Landlord, and shall keep the Premises and Building free and clear
of all mechanic's and materialmen's liens in connection therewith. Landlord
shall have the right to post or keep posted on the Premises, or in the
immediate vicinity thereof, any notices of non responsibility for any
construction, alteration, or repair of the Premises by Tenant. If any such
lien is filed, Landlord may, but shall not be required to, take such action or
pay such amount as may be necessary to remove such lien; and, Tenant shall pay
to Landlord as Additional Rent any such amounts expended by Landlord within
five (5) days after notice is received from Landlord of the amount expended by
Landlord.
7. FIXTURES, PERSONAL PROPERTY AND ALTERATIONS, PAYMENT OF
TAXES
7.01. Fixtures and Personal Property. Tenant, at Tenant's
expense, may install any necessary trade fixtures, equipment, and furniture in
the Premises, provided that such items are installed and are removable without
damage to the structure of the Building. Landlord reserves the unilateral
right to approve or disapprove of curtains, draperies, shades, paint, or other
interior improvements. Such improvements must be submitted for Landlord's
written approval prior to installation, or Landlord may remove or replace such
items at Tenant's sole expense. Said trade fixtures, equipment and furniture
shall remain Tenant's property and shall be removed by Tenant upon expiration
of the Term or earlier termination of this Lease. Tenant shall repair, at
Tenant's sole expense, all damage caused by the installation or removal of
trade fixtures, equipment, furniture, or temporary improvements. If Tenant
falls to remove the foregoing items on termination of this Lease, Landlord may
keep and use them or remove any or all of them and cause them to be stored or
sold in accordance with applicable law.
7.02. Alterations, Tenant shall not make or allow to be made any
alterations, additions or improvements to the Premises, either at the
inception of this Lease or subsequently during the Term, without obtaining the
prior written consent of Landlord which consent shall not be unreasonably
withheld. Tenant shall deliver to Landlord full and complete plans and
specifications of all such alterations, additions or improvements, and no such
work shall be commenced by Tenant until Landlord has given its written
approval thereof. Landlord does not expressly or implicitly covenant or
warrant that any plans or specifications submitted by Tenant are safe or that
the same comply with any applicable laws, lawful ordinances, etc. Further,
Tenant shall indemnify and hold Landlord harmless from any loss, cost, or
expense, including attorneys' fees and costs, incurred by Landlord as a result
of any defects in design, materials, or workmanship resulting from Tenant's
alterations, additions, or improvements to the Premises. All alterations,
additions and improvements shall remain the property of Tenant until
termination of this Lease, at which time they shall be and become the property
of Landlord. All repairs, alterations, additions, and restoration by Tenant
hereinafter required or permitted shall be done in a good and workmanlike
manner and in compliance with all applicable laws and lawful ordinances,
bylaws, regulations and orders of any federal, state, county, municipal or
other public authority and of the insurers of the Building. Tenant shall not
permit liens of any kind to be imposed upon the Premises or Building and
Tenant shall discharge of record of such liens within
five (5) days after written notice thereof. Tenant shall reimburse Landlord
for Landlord's reasonable claims for reviewing and approving or disapproving
plans and specifications for any alterations proposed by Tenant. Tenant shall
require that any contractors used by Tenant carry a comprehensive liability
policy covering bodily injury in the amounts of Three Million and No/ 100
Dollars ($3,000,000.00) per person and Three Million and No/ 100 Dollars
($3,000,000.00) per occurrence and covering, property damage in the amount of
One Million and No/100 Dollars ($I,000,000.00). Landlord may require proof on
such insurance prior to commencement of any work on the Premises.
8. USE OF PREMISES.
8.01. General. The Premises shall be used for the Permitted
Uses consistent with any limitation imposed upon Landlord by any governmental
authority, covenants, conditions and restrictions of record affecting the
Building or lender. By commencing occupancy of the Premises, Tenant accepts
the Premises in the condition existing as of the date of such entry, subject
to all applicable municipal, county, state, and federal statutes, laws, and
ordinances, including ordinances and regulations governing and relating to the
use, occupancy, and possession of the Premises (collectively "Regulations").
Except for pre-existing violations, Tenant shall, at Tenant's sole expense,
comply with all Regulations now in force or which may hereafter be in force
relating to the Premises and the use of the Premises, and Tenant shall secure
any permits. Furthermore, Tenant agrees, by Tenant's entry, that Tenant has
conducted an investigation of the Premises and the acceptability of the
Premises for Tenant's use, to the extent that such investigation might affect
or influence Tenant's execution of this Lease. Tenant acknowledges that
Landlord has made no representations or warranties in connection with the
physical condition of the Premises or Tenant's use of the same upon which
Tenant has relied directly or indirectly for any purpose, except as may be set
forth herein. Tenant shall not commit waste, interfere with any other tenants
in the Building, over load the floors or structure of the Building subject the
Premises to any use which would damage the Premises, or raise or violate any
insurance coverage required by this Lease or take any action that would impair
parking or alter parking spaces. Tenant shall strictly comply with all
statutes, laws, ordinances, rules, regulations, and precautions now or
hereafter mandated or advised by any federal, state, local, or other
governmental agency with respect to the use, generation, storage, or disposal
of hazardous, toxic, or radioactive materials (collectively "Hazardous
Materials"). Landlord shall have the right at all reasonable times to inspect
the Premises and to conduct tests and investigations to determine whether
Tenant is in compliance with the foregoing provision, the costs of all such
inspections, tests, and investigations to be borne by Tenant. As herein used,
Hazardous Materials shall include, but not be limited to, those substances
defined as "hazardous substances," "hazardous materials......hazardous
wastes," "toxic substances," or other similar designations in the
comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended 42 U. S. C. Section 9601 et seq.; the Resource Conversation and
Recovery Act, 42 U. S. C. Section 690 1, et seq.; the Hazardous Tenant shall
pay to Landlord a sum equal to the reasonable cost of performing any
obligations required of Tenant by this Lease ,with respect to the surrender of
the Premises, including, without limitation, repairs and maintenance, and upon
such payment Tenant shall be excused from any such obligations. If a
temporary condemnation is for an established period which extends beyond the
Term, the Lease shall terminate as of the date of occupancy by the condemning
authority, and the damages shall be as provided In Articles 10.03 and 10.04
hereinabove and Rent shall be adjusted to the date of occupancy.
11. DEFAULT
11.01 Events of Default. In addition to other provisions of
this Lease, the occurrence of any of the following events shall constitute an
"Event of Default" on the part of the Tenant upon notice from Landlord:
(a) Vacation or Abandonment. Vacation or abandonment of
the Premises; provided, that Tenant shall be deemed to have vacated or
abandoned the Premises if Tenant fails for any reason to use the Premises for
a Permitted Use for a period of ten (10) consecutive days without Landlord's
prior written consent;
(b) Payment. Failure to pay any installment of Monthly
Base Rent, Additional Rent, or other monies due and payable hereunder upon the
date when said payment is due, the failure continuing for a period of ten (10)
days;
(c) Performance. Default in the performance of any of
Tenant's covenants, agreements or obligations hereunder (except default in the
payment of Monthly Base Rent, Additional Rent or other monetary obligation),
the default continuing for thirty (30) days after written notice thereof from
Landlord;
(d) Assignment. A general assignment by Tenant for the
benefit of creditors;
(e) Bankruptcy. The filing of a voluntary petition by
Tenant, or the filing of an involuntary petition by any of Tenant's creditors
seeking the rehabilitation, liquidation or reorganization of Tenant under any
law relating, to bankruptcy, insolvency or other relief of debtors;
(f) Receivership . The appointment or a receiver or
other custodian to take possession of substantially all of Tenant's assets or
of the Tenant's leasehold interest;
(g) Insolvency, Dissolution, Etc. Tenant shall become
insolvent or unable to pay its debts, or shall fail generally to pay its debt
as they become due; or any court shall enter a decree or order directing the
winding up or liquidation of tenant or of substantially all of its assets or
Tenant shall take an action toward the dissolution or winding up of its
affairs or the cessation or suspension of its use of the Premises; or,
(h) Attachment. Attachment, execution, or other
judicial seizure of substantially all of Tenant's assets or the Tenant's
leasehold interest.
11.02 Landlord's Remedies. Upon the occurrence of any of
the Events of Default of this Lease, Landlord shall have the option to pursue
any one or more of the following, remedies without any notice or demand
whatsoever:
(a) Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant fails to so
surrender the Premises, Landlord may, without prejudice to any other remedy
which it may have for possession of the Premises or arrearages in Monthly Base
Rent, enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying such Premises or any part
thereof, without being liable for prosecution or any claim for damages
therefore. Tenant shall pay to Landlord on demand the amount of all loss and
damages which Landlord may suffer by reason of such termination, whether
through inability to relet the Premises on satisfactory terms or otherwise.
(b) Enter upon and take possession of the Premises,
without termination of this Lease and without being liable for prosecution or
for any claim for damages therefore, and expel or remove Tenant and any other
person who may be occupying the Premises or any party thereof Landlord may
relet the Premises and receive the Monthly Base Rent therefore. Tenant agrees
to pay to Landlord the monthly or on demand from time-to-time any deficiency
that may arise by reason of any such relenting. In determining the amount of
such deficiency, the brokerage commission, attorneys' fees, remodeling
expenses, and other costs of relenting shall be subtracted from the amount of
rent received under such reletting.
(c) Enter upon the Premises without terminating this
Lease and without being liable for any prosecution or for any claim for
damages therefore, and do whatever Tenant is obligated to do under the terms
of this Lease. Tenant agrees to pay Landlord on demand for expenses which
Landlord may incur in this effecting compliance with Tenant's obligations
under this Lease, together with interest thereon at the highest legal rate per
annum from the date expended until paid. Landlord shall not be liable for any
damages resulting to Tenant from such action, whether caused by negligence of
Landlord or otherwise.
Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the other remedies herein provided by any other
remedies provided in law or equity, nor shall pursuit of any remedy herein
provided constitute a forfeiture or waiver of any Monthly Base Rent due to
Landlord or of any damages accruing to Landlord by reason of violation of any
of the terms, conditions, and covenants herein contained.
12. ASSIGNMENT AND SUBLETTING
12.01. Assignment and Subletting: Prohibition. Tenant shall
not assign, mortgage, pledge, or otherwise transfer this Lease. in whole or in
part, nor sublet or permit occupancy by any party other than Tenant of all or
any part of the Premises, without the prior written consent of Landlord in
each instance. Tenant shall submit each proposed assignment or sublease
agreement to Landlord for Landlord's approval. No assignment or subletting by
Tenant shall relieve Tenant of any obligation under this Lease, including
Tenant's obligations to pay Monthly Base Rent hereunder. Any purported
assignment or subletting contrary to the provisions hereof without consent
shall be void. The consent of Landlord to any assignment or subletting shall
not constitute a waiver of the necessity for such consent to any subsequent
assignment or subletting. As Additional Rent hereunder, Tenant shall
reimburse Landlord for reasonable attorneys' fees and other expenses incurred
by Landlord in connection with any request by Tenant for consent to assignment
or subletting.
12.02. Bonus Rental. If for any assignment or sublease,
Tenant receives rent or other consideration, either initially or over the term
of the assignment or sublease, in excess of the Monthly Base Rent called for
hereunder, or in any case of the sublease or a portion of the Premises, in
excess of such Monthly Base Rent fairly allocable to such portion, after
appropriate adjustments to assure that all other payments called for hereunder
are appropriately taken into account, Tenant shall pay to Landlord, as
Additional Rent hereunder, one hundred percent (100%) of the excess of each
such payment of rent or other consideration received by Tenant promptly after
its receipt.
12.03. Scope. The prohibition against assigning or subletting
contained in this Article shall be construed to include a prohibition against
any assignment or subletting by operation of law. If this Lease shall be
assigned, or if the underlying beneficial interest of Tenant is transferred,
or if the Premises or any part thereof shall be sublet or occupied by anybody
other than Tenant, Landlord may collect rent from the assignee, subtenant, or
occupant and apply the net amount collected to the Monthly Base Rent herein
reserved and apportion any excess rent so collected in accordance with the
terms of the immediately preceding paragraph, but no such assignment,
subletting, occupancy, or collection shall be deemed a waiver of this
covenant, of the acceptance of the assignee, subtenant or occupant as tenant,
or a release of Tenant from the further performance by Tenant of covenants on
the part of Tenant herein contained. No assignment or subletting shall affect
the continuing primary liability of Tenant (which, following assignment, shall
be joint and several with the assignee), and Tenant shall not be released from
performing any of the terms, covenants, and conditions of this Lease.
12.04. Waiver. Notwithstanding any assignment or sublease, or
any indulgences, waivers, or extensions of time granted by Landlord to any
assignee or sublesses, or failure by Landlord to take action against any
assignee or sublessee, Tenant waives notice of any default of any assignee or
sublessee and agrees that Landlord may, at its option, proceed against Tenant
without having taken action against or joined such assignee or sublessee,
except that Tenant shall have the benefit of any indulgences, waivers, and
extensions of time granted to any such assignee or sublessee.
12.05. Release. Landlord shall have the right at any time to
convey all or any portion of or interest in the Building. Whenever Landlord
conveys any interest in the Building, Landlord shall be automatically released
form the further performance of covenants on the part of Landlord herein
contained, and from any and all further liability, obligations, costs and
expense, demands, causes of action, claims or judgments arising from or
growing out of, or connected with this Lease after the effective date of said
release. The effective date of said release shall be the date the assignee
executes an assumption of such an assignment whereby the assignee expressly
agrees to assume all of Landlord's obligations, duties, responsibilities, and
liabilities with respect to this Lease. If requested, Tenant shall execute a
form of release and any such other documentation as may be required to further
effect the provisions of this Article 12.
13. ESTOPPEL CERTIFICATE, ATTORNMENT AND SUBORDINATION
13.01. Estoppel Certificate. Within ten (10) days after being
required therefor by Landlord, or if on any sale, assignment or hypothecation
by Landlord of Landlord's interest in the Building, or any part thereof, an
estoppel letter shall be required from Tenant, Tenant shall deliver, in
recordable form, a certificate to any proposed mortgages or purchasers, and
toLandlord, certifying (or stating any contrary statements with specificity)
as follows: (i) that to Tenant's best knowledge, there is no outstanding and
uncured Event of Default under this Lease, and that this Lease is in full
force and effect; (ii) that no modifications have been made in this Lease
since the original execution of the same, if there have been modifications,
stating the modifications; (iii) the expiration date of this Lease; (iv) the
date through which Monthly Base Rent has been paid; (v) that Tenant has
noclaims, defenses, or offsets to any action for collection of rents
thereafter accruing under this Lease; and (vi) no more than one month's
Monthly Base Rent has been paid in advance. In addition, such certificate
shall contain such other information as Landlord may reasonably require.
Tenant's failure to deliver said statement in a timely manner shall be
conclusive upon Tenant that the above-referenced matters are true with respect
to this Lease.
13.02. Attornment. Tenant shall (i) in the event any proceedings are
brought for the foreclosure of, or in the event of exercise of the power of
sale under any mortgage or deed of trust made by the Landlord, its successors
or assigns, encumbering the Premises, or any part thereof, or (ii) in the
event of termination of a ground lease, if any, or (iii) in the event of a
sale or conveyance by Landlord of all or any party of the Building, and if so
requested, attorn to the purchaser upon such foreclosure, sale or conveyance,
or upon any grant of a deed in lieu of a foreclosure, and recognize such
purchaser as the Landlord under this Lease.
13.03. Subordination. The rights of Tenant hereunder are and shall
be, at the election of the mortgagee, subject and subordinate to the lien of
such mortgage, or the lien resulting from any other method of financing or
refinancing, now or hereafter in force against the Building, and to all
advances made or hereafter to be made upon the security thereof; provided,
however, that notwithstanding such subordination, so long as Tenant is not in
default under any of the terms, covenants, and conditions of this Lease,
neither this Lease nor any of the rights of Tenant hereunder upon Tenant's
covenanting that Tenant is not in default hereunder shall be terminated or
subject to termination by any trustee's sale, any action to enforce the
security, or by any proceeding or action in foreclosure. If requested, Tenant
agrees to execute whatever documentation may be required to further effect the
provisions of this Article.
(a) During the original Term of this Lease, Landlord
shall have no right to relocate Tenant within the Building. However, in the
event Landlord desires to relocate Tenant within the Building, Landlord shall
provide Tenant with written notice thereof no less than sixty (60) days prior
to the expiration of the then current Tern of this Lease. It is the intention
that this notification be provided to Tenant in connection with Tenant's
decision to extend the Term of this Lease pursuant to Article 2.02
hereinabove. In the event the Landlord relocates the Tenant within the
Building, Landlord shall provide Tenant with reasonably similar space (which
shall be contiguous in nature) elsewhere within the Building and of
approximately the same size and condition as the Premises.
(b) In the event Landlord requires the Tenant to relocate
within the Building during any extended Term of the Lease, Landlord shall pay
all Tenant's reasonable costs associated in connection therewith including,
without limitation, interoffice moving expenses and computer or telephone
rewiring costs.
(c) In the event Landlord moves Tenant to such new space,
then this Lease and each and all of the terms and conditions hereof shall
remain in full force and effect and thereupon be deemed applicable to such new
space except that a revised floor plan shall become part of this Lease and
shall reflect the location of the new space.
17.03. No Light, Air, or View Easement. Any diminution or
shutting off of light, air, or view by any structure which may be erected on
lands adjacent to or in the vicinity of light, air, or view by any structure
which may be erected the Building shall in no way affect this Lease: or impose
any liability on Landlord.
17.04. Limitation of Landlord's Liability. The obligations of
Landlord under this Lease shall not constitute personal ablations of the
individual partners, directors, officers, or shareholders of Landlord, and
Tenant shall took solely to the real estate that is the subject of this Lease
and to no other assets of Landlord for satisfaction of any liability in
respect of this Lease and shall not seek recourse against the individual
partners, directors, officers, or shareholders of Landlord or any of their
personal assets for such satisfaction.
17.05. Time. Time is of the. essence of every provision hereof.
00.00.Xxxxxxxx's Fees. In any action or proceeding which the
Landlord or the Tenant may be required to prosecute to enforce its respective
rights hereunder, the unsuccessful party therein agrees to pay all costs
incurred by the prevailing party therein, including reasonable attorneys' fees
to be fixed by the court, and said costs and attorneys' fees shall be made a
part of the judgment in said action.
17.07. Binding Arbitration. The parties hereto agree to settle all
disputes hereunder with binding arbitration. Should there ever be a dispute
of the terms and conditions of this Lease, such dispute shall be settled by
binding arbitration with the Judicial Arbitrators Group, or such similar
organization in the Denver metropolitan area. Any such dispute must be
submitted to arbitration on or before thirty (30) days of the date of which
the dispute began and such arbitration must be concluded within sixty (60)
days from the date of submission unless otherwise mutually agreed by the
parties hereto. The arbitration shall be conducted by a sole arbitrator and
the cost and expense thereof shall be borne equally by the parties; provided,
however, the associated cost and expenses, including, without limitation,
reasonable attorneys fees, shall be borne solely by the parties thereto,
except to the extent as otherwise set forth in this Lease,
17.08. Captions and Article Numbers. The captions, article
numbers, and table of contents appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe, or describe the
scope or intent or such sections or articles of this Lease nor in any way
affect this Lease.
17.09. Severability. if any term, covenant, condition, or provision
of this Lease, or the application thereof to any person or Circumstance, shall
to any extent be held by a court or competent jurisdiction to be invalid,
void,,3r unenforceable, the remainder of the terms, covenants, conditions, or
provisions of this Lease, or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in no way be
affected, impaired, or invalidated.
17.10. Applicable Law. This Lease, and the rights and obligations
of the parties hereto, shall be construed and enforced in accordance with the
laws of the State of Colorado.
17.11. Holding Over. Should Tenant, or any of its successors in
interest, hold over the Premises, or any part thereof, after the expiration of
the term of this Lease, unless otherwise agreed to in writing, such holding
over shall constitute and be construed as tenancy from month-to-month only, at
a monthly rent eqlal to one hundred ten percent (I I 0%) of the Monthly Base
Rent owed during the final year of the Term of this Lease as the same may be
extended from time-to-time. This inclusion of the preceding sentence shall
not be construed as Landiord's permission for Tenant to hold over.
17.12. Surrender. Upon the expiration or earlier termination of
this Lease, Tenant shall surrender the Premises to Landlord in good order,
condition, and repair, except for reasonable wear and tear or as otherwise
provided herein. Tenant shall not commit or allow any waste or damage to be
committed on any portion of the Premises or Building. All property that
Tenant is required to surrender shall become Landlord's property upon the
termination of this Lease. Landlord may cause any of said personal property
that is not removed from the Premises within thirty (30) days after the date
of any termination of this Lease to be removed from the Premises and stored at
Tenant's expense, or4 at Landlord's election, said personal property
thereafter shall belong to Landlord without the payment of any consideration,
subject to the rights of any person holding a perfected security interest
therein.
17.13. Rules and Regulations. At all times during the Term, Tenant
shall comply with rules and regulations ("Rules and Regulations") as
promulgated by Landlord which shall, by this reference, become part of the
provisions of this Lease for the Buildinc, and the Common Areas.
17.14. No Nuisance. Tenant shall conduct its business and control
its agents, employees, invitees and visitors in such a manner as not to create
any nuisance, or interfere with, annoy or disturb any other tenant or Landlord
in its operation of the Building.
17.15. Landlord's Right to Perform. Upon Tenant's failure to
perform any obligation of Tenant hereunder, including, without limitation,
payment of Tenant's insurance premiums, charges of contractors who have
supplied materials or labor to the Premises, etc., Landlord shall have the
right to perform such obligation of Tenant on behalf of Tenant and/or to make
payment on behalf of Tenant to such parties. Tenant shall reimburse Landlord
the reasonable cost of Landlord's perfon-ning such obligation on Tenant's
behalf, including reimbursement of any amounts that may be expended by
Landlord plus interest at the maximum rate permitted by law, as Additional
Rent.
17.16. Mortgage Protection. No act or failure to act on the part of
the Landlord which would entitle Tenant under the terms,of this Lease, or by
law, to be relieved of Tenant's obligations hereunder or to terminate this
Lease, shall result in a release of such obligations or a termination of this
Lease unless (a) Tenant has given notice by certified mail to any beneficiary
of a deed of trust or mortgage covering the Premises whose address shall have
been furnished to Tenant, and (b) Tenant offers such beneficiary or mortgagee
a reasonable opportunity to cure the default, including time to obtain
possession :)f the Premises by power of sale or of judicial foreclosure, if
such should prove necessary to effect a cure.
17.17. Notification of Mortgaizee, Landlord hereby advises and
notifies Tenant that Landlord's current lender/mortgagee is;set forth
hereinbelow, Pursuant to the loan documents between Landlord and the
lender/mortoragee, lender/mortgagee has certain rights and interests in the
Building and this Lease pursuant to such loan documents. Landlord's
performance hereunder may be subject to the requirements of the
lender/mortgagee. The name and address of the lender/mortgagee is as follows:
Standard Life & Accident Insurance Company
0 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx 00000-0000
Attn: Mortgage and Real Estate Investment Department
17.18. Nonliability. Landlord shall not be in default hereunder
or be liable for any damages directly or indirectly resulting from nor shall
the Monthly Base Rent herein reserved be abated by reason of (i) the
interruption of use of the Premises as a result of the installation of any
equipment in connection with the Premises or Building or (ii) any failure to
furnish or delay in furnishing any services required to be provided by
Landlord when such failure or delay is caused by accident or any condition
beyond the reasonable control of Landlord or by the making of necessary
repairs or improvements to the Premises or to the Building, or the limitation,
curtailment, rationing, or restriction on use of water or electricity, gas, or
any other form of energy of any other service or utility whatsoever serving
the Premises or the Building. Landlord shall use reasonable efforts to remedy
any interruption in the furnishing of such services. Construction, interim,
permanent financing or refinancing for the Building, any lender shall request
reasonable modifications in this Lease as a condition to such financing,
Tenant will not unreasonably withhold, delay, or defer its consent thereto,
provided that such modifications do not increase the obligations of Tenant
hereunder or materially adversely affect the leasehold interest hereby created
or Tenant's rights hereunder.
17.19. Modification Required by Lender. If, in connection with
obtaining construction, interim, permanent financing or refinancing for the
Building, any lender shall request reasonable modifications in this Lease as a
condition to such financing, Tenant will not unreasonably withhold, delay, or
defer its consent thereto, provided that such modifications do not increase
the obligations of Tenant hereunder or materially adversely affect the
leasehold interest hereby created or Tenant's rights hereunder.
17.20. Recording. Neither Landlord nor Tenant shall record this
Lease nor a short form memorandum thereof without the. prior written consent
of the other.
17.21. Entire Agreement. This Lease, including all Exhibits
attached hereto, sets forth all covenants, promises, agreements, conditions,
and understandings between Landlord and Tenant concerning the Premises,
Building and Common Areas, and there are no covenants, promises, agreements,
conditions, or understandings, either oral or written, between Landlord and
Tenant other than as are herein set forth. Except as herein otherwise
provided, no subsequent alteration, amendment, change, or addition to this
Lease shall be binding upon Landlord or Tenant unless reduced to writing and
signed by Landlord and Tenant.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first
above written.
LANDLORD
THE XXXXXX COMPANY,
a Colorado limited partnership
By: THE ERIE COUNTY INVESTMENT CO.,
An Ohio corporation
General Partner
By: /s/ Xxxxx X. Xxxxxx
___________________
Xxxxx X. Xxxxxx, President
TENANT
GOOD TIMES RESTAURANTS INC.
A Nevada corporation
By: /s/Xxxx X. Xxxxxx
_________________
Xxxx X. Xxxxxx, President
1.04. Common Areas. Time-to-time made by Landlord, Tenant
shall Subject to reasonable rules and regulations from tenants to use the
Common Area.
1.05. Landlords Reserved Rights in Common Areas. Landlord
reserves the right from time-to-time:
(a) To install, use, maintain, repair, and replace pipes, ducts,
conduits, wires, and appurtenant meters and equipment for service to other
parts of the Building above the ceiling services, below), the floor surfaces,
within the walls and in the central core areas, and to relocate any pipes,
ducts, conduits, wires, and appurtenant meters and equipment included in the
Premises which are so located'or located elsewhere outside the Premises;
(b) To change the lines of the lot on which the Building stands
("Lot") and to redesign and re-stripe the parking facilities around
theBuilding and make other reasonable changes and grant other rights thereto
including, without limitation, the granting of easements, rights of way and
right.- of ingress and egress, and similar rights to users of parcels adjacent
to the Lot;
(c) Facility. To alter, relocate, and eliminate any other Common
Areas or facility; and
(d) Parking. Landlord reserves the right to grant exclusive use
to portions of the parking areas to Landlord or to I enants and any other
parties with whom Landlord may contract.
1.06. Rentable Area. The total rentable floor space in the
Building shall be the Rentable Square Feet of the Building. The total
rentable floor space in the Premises shall be the Rentable Square Feet of the
Premises as set forth on Exhibit B.
2. TERM
2.01 Commencement of Term. This Lease shall commence on April 1,
1998, and continue through March 31, 1999, unless earlier terminated as set
forth hereinbelow; provided, however, Tenant may take possession of the
Premises anytime prior to April 1, 1998 free of any Monthly Base Rent during
such early occupancy.
2.02 0ptions to Extend. Landlord hereby grants to Tenant, two
separate options to extend the term of this Lease. Each option shall allow
the Tenant to extend the Term of the Lease for an additional twelve (12)
months f@om the date of the expiration of the then current Term. If Tenant
desires to exercise either or both options, Tenant must provide written notice
thereof to Landlord on or before the thirtieth (30th) day prior to expiration
of the then current Term Materials Transportation Act, 49 U. S. C. Section I
1801 , et. seq.; and any other governmental statutes, laws, ordinances, rules,
regulations, and precautions. Tenant shall not cause, or allow anyone else
under the control of Tenant to cause, any Hazardous Materials to be used,
generated, stored, or disposed of on or about the Premises, Lot, or Building
without the prior written consent of Landlord, which consent may be withheld:
in the sole discretion of Landlord, and which consent may be revoked at
anytime. Tenant's indemnification of Landlord pursuant to Article 4.08,
above, shall extend to all liability, including all foreseeable and
unforeseeable consequential damages, directly or indirectly arising out of the
use, generation, storage, or disposal of Hazardous Materials by Tenant
including, without limitation, the ciost of any required or necessary repair,
cleanup, or detoxification and the preparation of any closure or other
required plans, whether such action is required or necessary prior to or
following the termination of this Lease, to the full extent that such action
is attributable, directly or indirectly, to: the use, generation, storage, or
disposal of Hazardous Materials by Tenant. Neither the written consent by
Landlord to the use, generation, storage, or disposal of Hazardous Materials
nor the strict compliance by Tenant with all statutes, laws, ordinances,
rules, regulations, and precautions pertaining to Hazardous Materials shall
excuse Tenant from Tenant's obligation of indemniflcation pursuant to this
subsection. Tenant's obligations pursuant to the foregoing indemnity shall
survive the termination of this Lease.
8.02 Signs. Tenant shall not install any sign on the Premises or
Building; provided, however, that Landlord shall installlfor Tenant an
identifying sign in the lobby of the Buildings in conformance with the current
Building signage. Any sign placed by Landlord for the benefit of Tenant on
the Premises or Building!shall be installed at the Tenant's sole cost and
expense, and shall contain only Tenant's name, or the name of any affiliate
Tenant actually occupying the Premises, and no advertising matter. Tenant
shall remove any such sign upon termination of this Lease and shall return the
Premises to their condition prior to the placement or erection of said sign.
8.03. Parking Access. In addition to the general obligation of
Tenant to comply with laws and without limitation there:)f, Landlord shall not
be liable to Tenant nor shall this Lease be affected if any parking privileges
appurtenant to the Premises are impaired by reason for any moratorium,
initiative, referendum, statute, regulation, or other governmental decree or
action which could in any manner prevent or limit the parking rights of Tenant
hereunder.
8.04. Floor Plan . Tenant shall not place a load upon any floor of
the Premises which exceeds the load per square foot which such floor is
designed to carry and which is then allowed by law.
8.05. Deliveries. All deliveries to and from the Premises shall be
made at the location(s) designated by Landlord during the time periods
specified by Landlord and so as to cause the minimum amount of interference
with the business of other tenants.
9.0 DAMAGE AND DESTRUCTION
9.01. Reconstruction. If the Premises are damaged or
destroyed during the Term, Landlord shall, to the extent that insurance
proceeds are available therefor and are not applied by any lender against
payment of an existing loan on the Building or lot, except as hereinafter
provided, diligently repair or rebuild them to substantially the condition in
which they existed immediately prior to such damage or destruction; provided,
however, that any damage which is estimated in good faith by Landlord to be
under Two Thousand and No/I 00 Dollars ($2,000.00), regardless of how such
damage occurred, shall be deemed to constitute "ordinary repairs and
maintenance" and shall be repaired by Tenant at its own expense, regardless of
the availability of any insurance proceeds relating thereto. In the event
that any damage or destruction occurs that is to be repaired by Landlord
hereunder, and the insurance proceeds available to Landlord therefore under
the insurance policies required in Article 4 hereof are insufficient to cover
the costs of such repair, Landlord shall notify Tenant in writing that such
proceeds are insufficient, whereupon Tenant may elect to pay the difference
between the cost of such repairs and the available insurance proceeds by
giving written notice of such election to Landlord within ten (10) days after
Tenant's receipt of Landlord's notice. If Tenant does not deliver such notice
to Landlord within the ten (10) day period, Tenant shall be deemed to have
elected not to pay such difference, and Landlord shall have the right, in its
sole discretion, either to proceed to repair the Premises, or to terminate
this Lease by delivering written notice of such termination to Tenant. Nothing
contained in this Article 9 shall be construed in any event to obligate
Landlord to make ordinary repairs and maintenance that are to be performed by
Tenant at its own expense pursuant to this Article 9.0 1, except to the extent
that such repairs relate to the walls, ceilings, and subfloors of the Premises
that are to be maintained and repaired by Landlord at Tenant's expense
pursuant to Article 6.01 of this Lease.
9.02 Rent Abatement. Rent due and payable hereunder shall be
abated proportionately, but only to the extent of any proceeds received by
Landlord from rental abatement insurance described in Article 4.03
hereinabove, during any period in which, by reason of any such damage or
destruction, Landlord reasonably determines that there is substantial
interference with the operation of Tenant's business in the Premises, having
regard to the extent to which Tenant may be required to discontinue its
business in the Premises. Such abatement shall continue for the period
commencing with such damage or destruction and ending with a substantial
completion by Landlord of the work of repair or reconstruction which Landlord
is obligated or undertakes to do. If it shall be deten-nined that continuation
of business is not practical pending reconstruction, Monthly Base Rent due and
payable hereunder shall xxxxx to the extent of proceeds from rental abatement
insurance until reconstruction is substantially completed or until business is
totally or partially resumed, whichever is the earlier.
9.03. Excessive Damage or Destruction. If the Building is destroyed
to the extent that the Landlord determines that it cannot, with reasonable
diligence, be fully repaired or restored by Landlord within ninety (90) days
after the date of the dama-e or destruction, Landlord may terminate this
Lease. Notwithstanding the fact that the Premises have been damaged or
destroyed, Landlord shall determine whether the Building can be fully repaired
or restored within the ninety (90) day period, and Landlord's determination
shall be binding upon Tenant. Landlord shall notify Tenant of its
determination, in writing, within fortv five (45) days after the date of the
damage or destruction.
10. EMINENT DOMAIN
10.01 Total Condemnation. If the whole of the Premises is
acquired or condemned by eminent domain, inversely condemned or sold in lieu
of condemnation for any public or quasi public use or purpose ("Condemned"),
then the Term shall terminate as of the date of title vesting in such
proceeding, and Monthly Base Rent shall be adjusted as of the date of such
termination. Landlord and Tenant shall immediately notify the other party of
any such occurrence.
10.02. If any part of the Premises is partially Condemned, and such
partial condemnation renders the Premises unusable for the business of the
Tenant, as reasonably determined by Landlord and Tenant, or in the event a
substantial portion of the Building is Condemned, as reasonably determined by
Landlord, then the Term shall terminate as of the date of title vesting in
such proceeding and Monthly Base Rent shall be adjusted to the date of
termination. If such condemnation is not sufficiently extensive to render the
Premises unusable for the business of Tenant as reasonably determined by
Landlord and Tenant, or less than a substantial portion of the Building is
Condemned, then Landlord shall promptly restore the Premises to a condition
comparable to its condition immediately prior to such condemnation less the
portion thereof listed in such condemnation, and this Lease shall continue in
full force and effect except that after the date of such title vesting the
Monthly Base Rent shall be appropriately reduced as reasonably determined by
Landlord on a pro rata basis. Landlord's obligation to restore the Premises
to their original condition shall be subject to the limitation that Landlord
shall not be required to spend an unreasonable amount of money to do so, as
exclusively determined by Landlord.
10.03. Landlord's Award. If the Premises are wholly or partially
Condemned, then, subject to the provision of Article 10.04 below, Landlord
shall be entitled to the entire award paid for such condemnation, and Tenant
waives any right or claim to any part thereof from Landlord or the condemning
authority.
10.04. Tenant shall have the right to claim and recover from the
condemning authority, but not from Landlord, such compensation as may be
separately awarded or recoverable by Tenant in Tenant's own right on account
of any and all costs or loss to which Tenant might incur removing Tenant's
merchandise, furniture, fixtures, leasehold improvements, equipment and
business interruption to a new location.
10.05. Term. If the whole or any part of the Premises shall be
Condemned for any temporary public or quasi public use or purpose, this Lease
shall remain in full force and effect and Tenant shall be entitled to receive
for itself such portion or portions of any award made for such use with
respect to the period of the taking which is within the Term. If a temporary
condemnation remains in force at the expiration or earlier termination of the
Lease,
