Exhibit 10.11
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease") made and entered into this 20th day of
October, 2003, by and between XXXX XXXXX, successors or assigns (hereinafter
referred to as "Lessor" or "Landlord"), and XXXXXXXXX ONE GROUP,INC.DBA XXXXX'
RIBS ("Lessee" or "Tenant"), whose address is 0000 XXXXXXXXX XXXX, Xxxxx,
Xxxxxxx collectively, the "the "Parties"), which Parties for and in
consideration of the payments and their mutual covenants contained herein set
forth do hereby agree as herein specified.
Article 1. GRANT AND TERM.
1.1 Premises. In consideration of the rents, covenants and agreements
herein set forth, Landlord hereby leases to Tenant and Tenant hereby rents from
Landlord those certain premises located at 0000 XXXXXXXXX XXXX; consisting of
1886 sq. ft. ("Building").
1.2 Tenant hereby accepts the Premises ????as is , without any
representation or warranty of any kind, either express or implied, on behalf of
Landlord. Said premises extend to the exterior faces of all walls. Landlord
reserves the use of the walls and roof and the space immediately under the roof,
including the right therein to install, maintain, use, repair and replace pipes,
ducts, conduits and wires in locations which will not materially interfere with
Tenant's use thereof.
1.3 Title, Quiet Enjoyment of Premises. Landlord warrants that it has
lawful title and/or underlying ground lease rights to execute this Lease and
agrees, if Tenant shall perform all of Tenants agreements herein specified,
Tenant shall, subject to the terms and conditions of this Lease, have the
peaceable and quiet enjoyment and possession of the Premises without any manner
or hindrance from Landlord or any persons lawfully claiming through Landlord.
Tenant shall not commit or suffer to be committed any waste upon all or any
portion of the Premises or any nuisance or other act or thing which may disturb
the quiet enjoyment of any surrounding property owners.
1.4 Initial Rental Term. The term of this lease shall be for a period
of Three years and 11 days commencing on the Commencement Date October 20, 2003
and ending October 31, 2006. Three years and 11 days after such date (the
"Term"). If the Commencement Date is other than the 1st day of a calendar month,
the 1st Lease Year shall be the period of time from said Date to the end of the
month in which said Date shall fall, plus the following twelve (12) calendar
months. Each Lease Year thereafter shall be a successive period of twelve (12)
calendar months.
1.5 Options to Renew. The Tenant will have Three (3) options to renew
this lease on the same terms and conditions with a 6% increase in rent at the
beginning of each term. Each option shall be exercised by tenant no later than
120 days prior to expiration of each term by notification in writing to the
Landlord..
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Article 2. RENTS, DEPOSITS: October 20, 2003-October 3 1,2003 shall be
rent free. Tenant shall have insurance in place and pay own utility bills.
2.1 Rent. Tenant shall pay rent to Landlord during the term in monthly
installments on the first of each month, starting November 1,2003 in the amount
of:
Annual Rent Schedule
Monthly Sales Tax Total Monthly Annual Base
Years 1,2 and 3 $3000.00 $210.00 $3210.00 $36000.00
A Security Deposit in the amount of $ 3210 shall be paid on execution
of this lease. Tenant gives Landlord permission to commingle these
funds.
Should the commencement of the Term fall on a day other than the first
of the month, then Tenant shall pay minimum rent for the fractional
month commencing on the first day of the Term and ending on the last
day of the month in which the Term commenced on a per diem basis.
Tenant's obligation to pay rent and additional rent shall commence on
Novemberl,2003. Minimum Rent and all other sums due hereunder as rent
shall be prorated to account for partial months during the Term. Rent
shall be payable without demand on the first day of each calendar
month to Xxxx Xxxxx, 0000 X. Xxxxxxxxx Xxx., Xxxxx Xxxxxxx 00000.
2.2 Annual Adjustment to Minimum Rent. NA
2.3 Additional Rent. Tenant shall pay as "Additional Rent"/maintenance
all other sums and charges required to be paid by Tenant pursuant to the terms
of this Lease.
2.4 Past Due Rent. If the Tenant shall fail to pay within five (5)
days after the same is due and payable, any Minimum Rent, Additional Rent, Rent
or any other amounts or charges provided for in this Lease, there shall become
due and payable, in addition, an amount equal to ten percent (5%) of the amount
past due to cover the Landlord's additional costs in handling delinquent
charges. Lessor reserves the right to refuse acceptance of Rent and late charges
five (5) days after Lessor has served Lessee with written notice to Lessee to
correct a default in the payment of charges due hereunder.
2.5 Deposit. At the commencement of the term of this Lease, Lessee
shall pay to Lessor a deposit equal to one (1) months' Minimum Rent as security
for the performance by Lessee of all the terms, covenants, and conditions of
this Lease. Landlord may commingle such funds and landlord will not owe Tenant
any interest on such amount when the applicable rental or charge is due.
Article 3. REAL ESTATE TAXES. Landlord shall be responsible for
payment of Real Estate Taxes.
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Article 4. CONDUCT OF BUSINESS BY TENANT.
4.1 Use of Premises. Landlord gives Tenant the exclusive right to use
the building as a restaurant and takeout.. Landlord warrants that, as of the
date of lease execution, there will be no lease restrictions, operating
covenants or deed restrictions that would now or at any time in the future
prohibit or restrict Tenant from conducting business as a restaurant. Landlord
will hold Tenant harmless against any legal action caused by private
restrictions, warrants and covenants. Tenant shall not suffer or permit all or
any part of the Premises to be used for any other business or purpose or by any
other person without the prior written consent of Landlord.
4.2 Tenant Minimum Hours of Operation. Tenant shall be open a minimum
of 5 days a week.
4.3 Governmental Regulation. Tenant, at its expense, shall comply with
all federal, state and local laws, ordinances, orders, rules, regulations, all
agreements and covenants of public record pertaining to all or any portion of
the Premises now or hereafter in force, including without limitation, the
Americans with Disabilities Act, with respect to the Premises. Without limiting
the foregoing, Tenant shall be required to affect any structural repair,
improvement, alteration or other change to the Premises and improvements thereon
by reason of any such laws, ordinances, rules, regulations, covenants or
agreements, but only with Landlord's prior written approval.
Article 5. SECURITY. If Tenant defaults for any reason or vacates or
abandons the premises for any reason during the first three (3) years of the
lease the Tenant will pay the sum of Ten Thousand dollars ($10,000) to the
Landlord for the FF&E, (furniture, fixtures and equipment), that the Landlord is
selling to them, as referred to in EXHIBIT A, THE XXXX OF SALE.
Article 6. MAINTENANCE OF PREMISES.
6.1 Maintenance by Tenant. Tenant shall at all times at Tenant's
expense keep the Premises and all improvements located thereon (including,
without limitation, all glass, windows, floors, partitions, doors, fixtures,
equipment and appurtenances thereof, lighting, heating, plumbing fixtures and
air conditioning equipment), in good order and repair, and in a clean and
sanitary condition, and shall make all necessary repairs, ordinary and
extraordinary, foreseen and unforeseen, including all necessary replacements,
alterations, additions and betterments, using material and equipment of like
kind and quality to the original improvements not designated as Landlord's
obligation. Tenant shall be responsible for all repair and maintenance within
and without the Premises, including plate glass and/or replacement of 1-I VAC if
necessary, with the exception that during the first three (3) years repair of
HVAC by tenant shall be limited to $200 per incident, provided that Tenant has
taken out an annual maintenance policy with a reputable air conditioning
company. HYAC shall be delivered in good working order. This policy will be
required throughout all lease terms and a copy of same shall be delivered to
Landlord. Tenant will also be responsible for maintaining any landscaping.
6.2 Maintenance by Landlord. Landlord shall be responsible for
maintaining the structure, roof and parking lot. Landlord shall not be
responsible for reasonable wear and tear or
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6.4 Delivery at Expiration. Upon the expiration of the tenancy hereby
created, Tenant shall surrender the Premises in the same condition as existing
upon delivery of possession thereof under this Lease, reasonable wear and tear
excepted, including all equipment and FF& E owned by the Landlord, on the
premises at the start of the lease and available for use of the tenant, that
shall be on an inventory list to be made a part of this lease as Exhibit A and
attached hereto, and shall surrender all keys for the Premises to Landlord at
its place then fixed for the payment of rent. Tenant shall remove all trade
fixtures added by them, and any alterations or improvements before surrendering
the Premises as aforesaid and shall repair any damage to the Premises or
building caused thereby. Tenant's obligation to observe or perform this covenant
shall survive the expiration or termination of the Term of this Lease.
Article 7. FIXTURES, ALTERATIONS, REPLACEMENTS, IMPROVEMENTS.
Tenant agrees that Landlord and its agents may inspect the Premises at any
reasonable time and that Landlord may make such repairs or improvements to the
Premises or any part of the Building that Landlord may deem desirable or
necessary which Tenant has not agreed herein to do or has failed to do. In the
event of an emergency, Landlord shall have the right to enter the Premises
without Tenant's permission if Tenant is not immediately available. Tenant
further agrees that during ninety (90) days preceding the Term termination,
Landlord or its agents shall have the right to show the Premises to potential
tenants, and to place various notices on the Premises offering the Premises to
such tenants,
7.1 Approval by Landlord. Tenant shall not, without the prior written
approval of Landlord, not to be unreasonably withheld, install or permit to be
installed any fixture or improvement or make any alterations, replacement or
repair upon the Premises or building, including signs, electrical apparatus, or
cutting or drilling into any part of the Premises or building or securing any
fixtures, apparatus or equipment of any kind to any part of the Premises or
building.Tenant shall present to Landlord plans and specifications for such work
at the time approval is sought, and when approval is granted, shall cause all
work to be done according to said plans and specifications, in compliance with
all codes, ordinances, rules and regulations of any authority, and in a neat and
workmanlike manner. The cost of repair of any damage resulting from any approved
work shall be borne by the Tenant. All alterations, replacements and
improvements permanently affixed to the Premises by Tenant shall become the
property of the Landlord upon termination of this Lease or any extension and
shall remain on the Premises in absence of a written agreement of the Landlord
to the contrary. Upon expiration of this Lease, any property belonging to the
Tenant which the Tenant has failed to remove from the Premises shall become the
property of the Landlord if Landlord elects or Tenant shall be liable for the
cost of removal thereof
7.2 Tenant Improvements. After completion of the Tenant's Work,
Tenant may make non-structural improvements, additions, alterations or changes
to the interior of the Leased Premises, or any part thereof not in excess of
$~QQ~ with out the prior written consent of Landlord, which will not be
unreasonably withheld, Tenant shall not make structural alterations without the
consent of Landlord, which consent shall be in Landlord's sole and absolute
discretion. Tenant agrees to indemnify and save harmless the Landlord from all
liens, claims or demands arising out of any work performed, materials furnished,
or obligations incurred, by or for Tenant, upon the Premises during the Term.
Tenant shall promptly pay all contractor and
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materialmen working on the Premises on his account, so as to minimize the
possibility of a lien attaching to any of the Building, including the Premises.
Should any such lien be made or filed, Tenant shall notify Landlord immediately
and bond against or discharge the same within 14 days after such lien is made or
filed.Tenant's Work and other Tenant improvements, additions, alterations or
changes to the Premises shall be done in a good and workmanlike manner and done
strictly in accordance with the laws and ordinances related thereto and shall
comply with the Americans with Disabilities Act and Chapter 553, Florida
Statutes, as each may be amended from time to time. Tenant shall require any
contractor performing work on the Premises to obtain and maintain, at no expense
to Landlord, in addition to worker's compensation insurance, as required by the
state of Florida, all risk builder's insurance, naming the Landlord as loss
payee, in the amount of the replacement cost of the applicable work (or such
other amount reasonably required by Landlord) and commercial general liability
insurance on an occurrence basis with a minimum combined single limit of
Three-hundred thousand dollars($300,000) and such other insurance that is
required by Landlord. Tenant shall further submit the names of all contractors,
sub-contractors, and other entities utilized for the work for Landlord's
approval prior to commencement of any work. In performing the work of any such
alterations, additions or changes, Tenant shall have the work performed in a
manner that will not obstruct the access to the Property of any other tenant of
Landlord. Tenant, if not in default of this Lease, may remove any work made by
Tenant pursuant to this section upon the termination of this Lease provided
Tenant repairs any damage caused by such removal.
7.3 Liens. The interest of Landlord in the Premises shall not be
subject in any way to any liens, including construction liens, for improvements
to or other work performed with respect to the Premises by or on behalf of
Tenant. Tenant shall have no power or authority to create any lien or permit any
lien to attach to the present estate, reversion, or other estate of Landlord (or
the interest of any ground lessor) in the Premises and all mechanics, material
men, contractors, artisans, and other parties contracting with Tenant or its
representative or privies with respect to the premises or any part of the
Premises are hereby charged with notice that they must look to the Tenant to
secure payment of any xxxx for work done or material furnished or for any other
purpose during the term of the Lease. The foregoing provisions are made with
express reference to Section 713.10, Florida Statutes. Notwithstanding for the
foregoing provisions, Tenant, at its expense, shall cause any lien filed against
the Premises for work or materials claimed to have been furnished to Tenant to
be discharged of record or properly transferred to a bond pursuant to Section
713.24, Florida Statues, within ten (10) days after notice thereof to Tenant.
Article 8. INSURANCE AND INDEMNITY.
8.1 Liability Insurance. Tenant will keep in force at its own expense
throughout the term of this Lease, comprehensive public liability insurance with
respect to the Premises and business operated by Tenant in such companies and in
such form as are acceptable to Landlord with minimum limits of One Million
Dollars ($1,000,000.00), combined bodily injury and property damage liability.
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8.2 Casualty Insurance. Tenant shall keep in force at its own expense
throughout the term of this Lease all risk property insurance covering fire and
extended coverage, vandalism and malicious mischief, sprinkler leakage, and
other perils of direct physical loss or damage insuring the improvements and
betterments located on the Premises and all appurtenances thereto for the full
replacement value thereof.
8.3 Indemnity by Tenant. Tenant shall indemnify, save harmless and
defend Landlord from and against any and all suits, claims, actions, damages,
liability and expense, including attorneys' fees arising from or out of the
occupancy or use by Tenant of the Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its officers, agents,
servants, contractors, employees or invitees.
8.4 Employer's Liability Insurance. Tenant shall, throughout the term
of this Lease, maintain such worker's compensation or employer's liability
insurance as may be required by law and shall indemnify and hold harmless the
Landlord against any loss, claim or demand of employees, agents, contractors and
subcontractors of the Tenant.
8.5 Certificate of Insurance. Tenant will have all policies required
under this Lease endorsed to show the LANDLORD as AN ADDITIONAL NAMED INSURED
AND LOSS PAYEE with respect to occurrences upon the Premises. Failure to provide
such certificate to Landlord and to otherwise carry the required insurance under
this Lease in effect at all times shall be a default hereunder.
Article 9. ASSIGNMENT AND SUBLETTING.
The granting of this Lease to the Tenant by Landlord upon the terms
and provisions set forth herein is strictly personal to Tenant, and Tenant
agrees that Tenant's financial credit, integrity, the manner of conducting
business on the Premises, and the relationship between the parties hereto,
constitute material inducements to Landlord's entering into and accepting this
Lease. Therefore, this Lease and the obligations due thereunder may not be
assumed, sold, conveyed, transferred, sublet, assigned or otherwise disposed of,
directly or indirectly, without the prior written consent of Landlord, which may
be withheld or given in its sole discretion. Consent by Landlord to any
assignment, subletting or other transfer shall not constitute a waiver of the
necessity for such consent to any subsequent assignment, subletting or transfer.
Notwithstanding any assignment, sublease or other Tenant and all guarantors of
this Lease, if any, shall remain fully liable on their original Lease, and shall
not be released from performing any of the original terms, covenants and
conditions of this Lease unless released in writing by the Landlord. The
enforceability of the rights of the Landlord as set forth herein are a condition
precedent to the grant of this Lease and Tenant acknowledges that Landlord would
not enter into this Lease without these rights. Any reference in this Lease to
sub-tenants, licensees, heirs, executors, administrators, successors and assigns
notwithstanding, Tenant agrees not to assign this Lease or to sublet the whole
or any part of the Premises, or to permit any other person to occupy same or any
part thereof without prior written consent of Landlord. Any assignment or
sub-letting, even with Landlord's consent, shall not relieve Tenant from
liability for payment of Rent or other sums; or from the obligation to keep and
be bound by the agreements of this Lease. Notwithstanding anything to the
contrary in the previous paragraph, Tenant may assign this Lease to a qualified
franchisee of Xxxxx' Ribs or other similarly viable assignee with Landlord's
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written consent, not to be unreasonably withheld, which assignment shall release
Tenant and Guarantors from all duties and liabilities hereunder. The guaranty
must be replaced by the new entity.
Article 10. EVENTS OF DEFAULT/REMEDIES.
10.1 Default. Tenant shall be deemed in default of its obligations
under this Lease upon the occurrence of any of the following:
a. Tenant's failure to pay Rent upon the date that such sums
are due and owing after five (5) days written notice'
b. Tenant's failure to perform any other covenant, promise, or
obligation of this Lease, other than the payment of Rent, for a period of more
than fifteen (15) days after written notice thereof by Landlord to Tenant,
except that this fifteen (15) day period shall be extended for a reasonable
period of time if the alleged default is not reasonably capable of cure within
said fifteen (15) day period and Tenant proceeds to diligently cure the default
and the default does not unreasonably interfere with or disturb other tenants of
the Building;
c. The bankruptcy of, or appointment of a receiver or trustee
for, Tenant under the Bankruptcy Code, 11 U.S.C., Section 101 et seq
("Bankruptcy Code"). Tenant covenants and agrees that if, at any time, Tenant
becomes a debtor under the Bankruptcy Code or is adjudged bankrupt or insolvent
under the laws of any state, or makes a general assignment for the benefit of
creditors, or if a receiver of Tenant's property in the Premises is appointed
and shall not be discharged within thirty (30) days of such appointment, then
Landlord may, at its option, declare this Lease terminated and shall forthwith
be entitled to immediate possession of the Premises except that if any such
proceedings are pursuant to the Bankruptcy Code, then Landlord shall be entitled
to all rights and remedies accorded landlords, including without limitation
those set forth in said Bankruptcy Code.
d. Tenant or any guarantor of Tenant's obligations under this
Lease voluntarily petitions for relief under, or otherwise seeks the benefit of,
any bankruptcy, reorganization, or insolvency law;
e. The sale of Tenant's interest under this Lease by execution
or other legal process;
f. Tenant's abandonment of the Premises during the term of
this Lease;
g. Tenant's vacating or closing the Premises during the term
of this Lease;
h. The seizure, sequestration or impounding by virtue or under
authority of any legal proceeding of any of the personal property or fixtures of
Tenant used in or incident to the operation of the Premises;
i. Tenant's making an assignment of this Lease for the benefit
of creditors;
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j. Any sale, transfer, assignment, subleasing, concession,
license, or other disposition prohibited under Article 9 hereof; or
k. Tenant shall do or permit to be done anything that creates
a lien upon the Premises and shall fail to obtain the release of any such lien
or to transfer the lien to bond as required herein.
10.2 Remedies. In the event of any default hereunder, Landlord, in
addition to all other remedies that Landlord may have at law or in equity, shall
be entitled to exercise any one or more of the following remedies:
a. Terminate Tenant's right to possession under this Lease and
re-enter and take possession of the Premises, remove Tenant's personal property
therefrom and store the same at Tenant's expense, and relet or attempt to relet
the Premises at such rental and upon such terms and conditions as Landlord may,
in its sole discretion, deem best under the circumstances. Landlord shall not be
deemed to have thereby accepted a surrender of the Premises and Tenant shall
remain liable for all Rent due under this Lease and for all damages suffered by
Landlord because of Tenant's breach of this Lease. At anytime during such
repossession or reletting, Landlord may, by delivering written notice to Tenant,
elect to exercise its option under the following subparagraph to accept a
surrender of the Premises, terminate or cancel this Lease and retake possession
and occupancy of the Premises on behalf of Landlord.
b. Declare this Lease to be terminated and re-enter upon and
take possession of the Premises without notice to Tenant, whereupon the term
hereby granted and all right, title and interest of Tenant in the Premises shall
terminate. Such termination shall be without prejudice to Landlord's right to
collect from Tenant any Rent that may have accrued prior to such termination,
together with all damages suffered by Landlord because of Tenant's breach of
this Lease.
c. Declare all Rent due and to become due under this Lease to
be immediately due and payable. Should Tenant fail to pay any such Rents or
other monetary obligations when due, then interest shall accrue from five (5)
days after the due date at the rate of eighteen percent (18%) per annum, but not
greater than the maximum rate permitted by law, together with any other charges
allowed under this Lease to cover Landlord's extra expense involved in
collecting such delinquency. All rights and remedies of Landlord specified
herein are cumulative and none shall exclude any other rights or remedies
allowed by law or equity,
10.3 Force Majeure, Destruction of Premises. If either Party shall be
delayed or prevented from the performance of any act required by this Lease by
reason of strikes, utility failures, restrictive laws, riots, acts of God or
other similar reasons not the fault of the non-performing Party, then the
performance time for such act shall be extended for a period equivalent to the
period of such delay. The provisions of this Paragraph shall not operate to
excuse Tenant from prompt payment of Rent or other charges hereunder. If the
Premises s shall be
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totally or partially damaged by fire or other casualty, Tenant shall immediately
undertake to repair the Premises to substantially the same condition as existed
prior to such casualty, and the Rent shall not be abated; however, if the
Premises are substantially or totally destroyed by fire or other casualty,
Landlord shall have the option of terminating this Lease upon thirty (30) days
prior written notice to Tenant, whereupon Landlord shall be entitled to all
insurance proceeds payable as a result of such casualty. Landlord shall not
liable for any inconvenience or interruption of business of Tenant occasioned by
fire or other casualty.
Article 11. SURRENDER OF PREMISES, HOLDING OVER, SUCCESSORS.
11.1 Surrender. Tenant agrees to deliver up and surrender to Landlord
possession of the Premises upon termination of this Lease, in as good condition
and repair as the same shall be at the Term commencement or may have been put by
Landlord during the continuance thereof; ordinary wear and tear excepted.
Nothing herein shall be construed as relieving Tenant of any of its maintenance,
repair or replacement obligations under this Lease.
11.2 Holding Over. In the event Tenant remains in possession of all or
any part of the Premises after the expiration of the Term or fails to completely
remove its personal property, then Tenant shall be deemed to be occupying the
Premises as a tenant from month to month at a monthly rental equal to twice the
sum of (i) the monthly installment of Minimum Rent payable during the last month
of the term or any extension or renewal that was in effect, and (ii) one-twelfth
(1/12) of all items of Additional Rent or other charges payable or paid during
the last Lease Year. Such continued occupancy shall not defeat Landlord's rights
to regain possession of the Premises.
11.3 Successors. All rights and liabilities herein given to or imposed
upon, the parties hereto shall insure to the benefit of and be binding upon
their respective heirs, executors, administrators, successors and assigns, and
if there shall be more than one Tenant, they shall all be bound jointly and
severally by the terms, covenants and agreements herein. No rights, however,
shall inure to the benefit of any assignee of Tenant unless the assignment to
such assignee has been approved by Landlord in writing as provided elsewhere in
this Lease.
Article 12. CONDEMNATION.
If the whole of the Premises or such a portion thereof as will make
the Premises unusable for the purpose leased, as determined by Landlord, be
condemned or taken in any manner for public use, then in either event the term
hereby granted shall cease and come to an end as of the date of the vesting of
title in such public authority. Landlord shall be entitled to the entire award
for such taking except for any separate claim of the Tenant for injury, damage
or destruction of Tenant's business accomplished by such taking. If a portion of
the Premises is condemned or taken and this Lease is not terminated as
aforesaid, this Lease will not be terminated and shall continue without any
abatement of Rent. In no event shall Landlord be liable to Tenant for any
business interruption, diminution in use or for any value of any unexpired term
of this Lease.
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Article 13. Hazardous Substances
The term "Hazardous Substances", as used in this Lease, shall include,
without limitation, flammables, explosives, radioactive materials, asbestos,
polychlorinated biphenyls (PCB's), chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products and substances
declared to be hazardous or toxic under any law or regulation now or hereafter
enacted or promulgated by any government authority. Tenant shall not cause or
permit any Hazardous Substance to be used, stored, generated, or disposed of on,
in or about the Premises in violation of any law, rule or regulation. If any
Hazardous Substance is used, stored, generated, or disposed of; or has been
used, stored, generated or disposed of after the Possession Date on, in, or
about the Premises, or if the Premises become contaminated in any manner, Tenant
shall indemnify, defend and hold harmless Landlord from any and all claims,
demands, actions, damages, fines, judgments, penalties, costs (including
attorneys', consultants', and experts' fees), liabilities, losses (including
without limitation, any decrease in value of the Premises, damages due to loss
or restriction of rentable or usable space, or any damages due to adverse impact
on marketing of Premises), and expenses arising during or after the term of this
Lease, arising as a result of such contamination. Tenant's sole cost and
expense, cure all matters reported therein. Furthermore, Tenant shall provide to
Landlord such additional information as Landlord may request regarding matters
covered by any Periodic Audit or the Termination Audit. The provisions of this
entire Article shall survive the expiration or earlier termination of this
Lease.
Article 14. RADON GAS.
The following notification is provided pursuant to Section 404.056(5),
Florida Statutes: "Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks
to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit."
Article 15. GUARANTY.
The undersigned Guarantors, jointly and severally,
unconditionally guarantee to Landlord that all sums stated in this
Lease to be payable by Tenant will be promptly paid as due and payable
in accordance with the provisions thereof; and that Tenant will
perform and observe each and every covenant, agreement, term and
condition in this Lease to be performed or observed by Tenant. The
Guaranty shall be irrevocable, and in all events shall be
unconditional and absolute, and if for any reason any such sums, or
any part thereof; shall not be paid promptly when due, Guarantors will
immediately pay the same to Landlord pursuant to and in accordance
with the provisions of this Lease regardless of any defenses or rights
of set-off or counterclaim which Tenant may have or assert, regardless
of whether Landlord shall have taken any steps to enforce any rights
against Tenant or any other person to collect such sum, or any part
thereof; and regardless of any other condition or contingency.
Guarantors also agree to pay to Landlord such further amount as shall
be sufficient to cover the cost and expense of collecting such sums,
or part thereof; or of otherwise enforcing this Guaranty, including,
in any case
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reasonable compensation to its attorneys for all services rendered in
that connection. Upon Tenant's failure to perform or observe any
covenant, agreement, term or condition in this Lease to be performed
or observed by Tenant, Guarantors will promptly perform and observe
the same or cause the same promptly to be performed or observed. This
Guaranty expressly extends through all renewal periods.
Article 16. MISCELLANEOUS.
16.1 Waiver. The waiver by Landlord of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any previous
breach by Tenant of any term, covenant, or condition of this Lease, other than
the failure of the Tenant to pay the particular rental so accepted, whether or
not Landlord had knowledge of such previous breach at the time of acceptance of
such rent. No covenant, term or condition of this Lease shall be deemed to have
been waived by Landlord, unless Landlord waives the same in writing.
16.2 Entire Agreement. This Lease and any incorporated attachments
contain all the agreements between the Parties and cannot be modified in any
manner other than by agreement signed by the Parties. The agreements herein
shall be binding upon and inure to the benefit of the heirs, executors,
administrators, successors and assigns of the Parties. Each agreement, term and
provision of this Lease shall be construed to be a promise, covenant and
condition. If Tenant is a corporation, partnership or other entity, the
person(s) signing this Lease on behalf of such entity hereby warrants that he
has full authority from such entity to sign this Lease and obligate the entity
hereunder, and the said person(s) and the entity shall be jointly and severally
liable for all rent and any and all other amounts that may be due and owing to
Landlord under the terms of this Lease, including attorneys' fees and costs.
This Lease and the Exhibits attached hereto and forming a part hereof set forth
all the covenants, promises, agreements, conditions and understandings between
Landlord and Tenant concerning the Premises and there are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between them other than 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
them.
16.3 Notices. Any xxxx, statement, notice, communication or payment
which Landlord or Tenant may desire or be required to give to the other party
shall be in writing and shall be sent to the other party by 24-hour guaranteed
courier or by registered or certified mail to the address specified in the first
paragraph of this Lease, or to such other address as either party shall have
designated to the other by like notice, and the time of the rendition of such
shall be when same is deposited in an official United States Post Office,
postage prepaid or with said courier.
16.4 Landlord's Liability. Notwithstanding anything to the contrary
contained in this Lease, in the event of any default or breach by Landlord with
respect to any of the terms, covenants or conditions of this Lease to be
observed, honored or performed by Landlord, Tenant
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shall look solely to Landlord's ownership interest in the Premises for the
collection of any judgment (or any other judicial procedures requiring the
payment of money by Landlord) and no other property or assets of Landlord shall
be subject to levy, execution or other procedures for satisfaction of Tenant's
remedies.
16.5 Broker. NO BROKER Except as specifically identified in this
Section, Landlord and Xxxxxxx each represent to the other that they have not
dealt, directly or indirectly, in connection with the leasing of the Premises,
with any broker or person entitled to claim a commission or leasing fees.
Landlord and Xxxxxxx each shall indemnify and hold each other harmless from any
loss, liability, damage, or expenses (including without limitation reasonable
attorneys' fees) arising from any claim for a commission or leasing fee arising
out of this transaction made by any unidentified broker or other person with
whom such party has dealt.
16.6 Consent Not Unreasonably Withheld. Except as otherwise
specifically provided, whenever consent or approval of Landlord or Tenant is
required under the terms of this Lease, such consent or approval shall not be
unreasonably withheld or delayed. Tenants sole remedy if Landlord unreasonably
withholds or delays consent or approval shall be an action for specific
performance, and Landlord shall not be liable for damages. If either party
withholds any consent or approval, such party shall on written request deliver
to the other party a written statement giving the reasons therefor.
16.7 Parties. Nothing in this Lease shall be deemed or construed so as
to create the relationship of principal and agent, partnership, joint venture or
of any association between the Parties, it being agreed that neither the
computation of Rent nor any other Lease provision nor any act of the Parties
shall be deemed to create any relationship between the Parties other than that
of Landlord and Tenant. The words "Landlord" and "Tenant" shall mean each Party
named as the Landlord or Tenant in Section 1.0 and if there shall be more than
one, any notice required or permitted by this Lease may be given by or to anyone
thereof; and shall have the same force and effect as if given by or to all
thereof. The use of the neuter singular pronoun to refer to either Party shall
be deemed a proper reference even though such Party may be an individual,
partnership, corporation, trust, or a group of two or more of any of the same.
The necessary grammatical changes required to make the provisions of this Lease
apply in the plural tense where there is more than one, as aforesaid, and to
either corporations, partnerships, individuals, trustees, males or females,
shall, in all instances, be assumed as though in each case fully expressed.
16.8 Applicable Law. This Lease shall be construed by and controlled
under the laws of the State of Florida. Exclusive venue for any action related
to this Lease shall be in and for the state courts located in Hillsborough
County, Florida.
16.9 Construction of Lease. Landlord and Tenant acknowledge that each
party and its counsel have reviewed and negotiated this Lease and that the rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Lease or
in any amendments, modifications or exhibits hereto.
Page 12 of 16 TENANT
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16.10 Section and Paragraph Numbers and Captions. The section and
paragraph numbers and captions contained herein are for convenience only and are
not a part of this Lease.
16.11 Time Is of the Essence. Time is of the essence with respect to
all of the obligations of Tenant under this Lease.
16.12 Jury Waiver, Counterclaims. Tenant waives the right to trial by
jury in any action, proceeding or counterclaim involving any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenants use or occupancy of the Premises or involving the
right to any statutory relief or remedy. Tenant hereby waives the right to
interpose any counterclaim of any nature in any summary proceeding or action
instituted by Landlord against Tenant or in any action instituted by Landlord
for unpaid rent or additional rent under this Lease. THE WAIVERS SET FORTH IN
THIS SECTION ARE MADE KNOWLINGLY, INTENTIONALLY AND VOLUNTARILY BY TENANT.
TENANT FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS FIAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS LEASE AND IN THE MAKING OF
THIS WAIVER BY INDEPENDENT COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT
HAS HAD THE OPPORTUNITY TO DISCUSS THESE WAIVERS WITH COUNSEL. THIS PROVISION IS
A MATERIAL INDUCEMENT TO LANDLORD IN AGREEING TO ENTER INTO THIS LEASE.
16.13 Attorneys' Fees. Should Tenant cause Landlord to incur legal
fees to enforce any of the provisions of this Lease or reply to letters or other
communications from Tenants attorney, Tenant shall reimburse Landlord for such
attorneys' fees within three (3) days of receipt of demand from Landlord
requesting such reimbursement. Landlord may collect such legal fees from the
Tenant's security deposit and Tenant shall replenish the security deposit to its
prior amount. In connection with any suit collection activity, suit, action, or
other proceeding, including arbitration or bankruptcy, arising out of or in any
manner relating to this Lease, the prevailing party shall be entitled to recover
reasonable attorneys' fees. All references in this Lease to attorneys' fees
shall be deemed to include all legal assistants' and paralegals' fees and shall
include all fees incurred through all post-judgment and appellate levels and in
connection with bankruptcy proceedings.
16. 14 Confidentiality: Tenant shall not disclose the terms of this
Lease to any third party without the Landlord's prior written consent.
16.15 Landlord hereby agrees to indemnify Tenant against any and all
claims arising prior to this date as signed below.
16.16 IN WITNESS WHEREOF, Landlord and Tenant have executed this
document as of the date hereinabove written, each acknowledging receipt of an
executed copy hereof.
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WITNESSES: LANDLORD:
XXXX XXXXX
Name: Xxxxxxx XxXxxxx
Name: Xxxx Hornplaid By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Landlord
Date: 10/20/03
WITNESSES: TENANT:
XXXXXXXXX ONE GROUP, INC. DBA
XXXXX' RIBS
Name: Xxxxxxx XxXxxxx
Name: Xxxx Hornplaid By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title President
Date: 10/20/03
Page 14 of 16 TENANT
RaginRibs LANDLORD
GUARANTORS
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WITNESSES: GUARANTORS
Name: Xxxxxxx XxXxxxx Name Xxxxx Xxxxxxxx
Date: 10/20/03 Title: President
Date: 10/20/03
Name: Name
Date: Title:
Date
Page 15 of 16 TENANT
RaginRibs LANDLORD
XXXX OF SALE
Received from, XXXXXXXXX ONE GROUP, INC, DBA XXXXX' Ribs (hereafter referred to
as "TENANT"), the sum of Ten dollars ($10) Dollars, as consideration, the sum of
which is hereby acknowledged by XXXX XXXXX, the Owner of the Premises,
(hereafter referred to as "LANDLORD") as having been paid for all of the FF&E
Furniture, fixtures and equipment currently on the premises.
2. If Tenant defaults for any reason or vacates or abandons the premises
for any reason during the first three (3) years of the lease the
Tenant will pay the sum of Ten Thousand dollars ($10,000) to the
Landlord for the FF&E (furniture, fixtures and equipment)
The undersigned Tenant hereby acknowledged that he has thoroughly read and
approved each of the provisions contained in this XXXX OF SALE, agrees to
the terms and conditions specified, and has received a copy.
Tenant- XXXXXXXXX ONE GROUP, INC Date 10/20/03
By: Xxxxx Xxxxxxxx, President
ACCEPTANCE
Landlord acknowledges that he has read and understands the provisions of this
Agreement, agrees to the terms and conditions specified, and acknowledges
receipt of a copy and the consideration amount.
Landlord - Xxxx Xxxxx Date 10/20/03
