Exhibit 10.05
LEASE AGREEMENT
by and between
FAMILY STEAK HOUSES OF FLORIDA, INC.
and
XXXXXXXX'X BUFFET, INC.
Dated September 27, 2002
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx
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LEASE AGREEMENT
This Lease Agreement (this "Lease") is made as of September 27, 2002
("Effective Date") by and between FAMILY STEAK HOUSES OF FLORIDA, INC.,
("Landlord"), whose address for purposes hereof is 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxx Xxxxx, Xxxxxxx 00000, and XXXXXXXX'X BUFFET, INC., a Tennessee
corporation doing business in Florida as Xxxxxxxx'x Buffet of Tennessee, Inc.
("Tenant"), whose address for purposes hereof is 000 Xxxxxxx Xxxxx, 0xx Xxxxx,
Xxxxxxxxx, Xxxxxxx 00000.
1. Description of Premises. Landlord leases to Tenant that certain parcel
of land located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx, together
with all improvements and furniture, fixtures and equipment located thereon as
of the Commencement Date, said land being more particularly described in Exhibit
"A" attached hereto (the "Premises").
2. Lease Term. The term of this Lease shall be for a period of ten (10)
years (the "Term") or until such Term shall sooner cease and expire or shall be
extended or renewed as hereinafter provided. The Term shall commence on the
earlier to occur of: (i) the date upon which Tenant takes possession of the
Premises, or (ii) the later of (a) 30 days after Tenant's construction plans are
approved or deemed to be approved by Landlord and Landlord's lender of (b)
November 1, 2002 (the "Commencement Date") and shall expire at midnight on
October 31, 2012. Notwithstanding the foregoing, however, the obligations
of the Tenant hereunder are contingent upon receipt of a non-disturbance
agreement (the "NDA") from GE Capital Franchise Finance Corporation, the lender
holding an existing mortgage upon the Premises, in form reasonably satisfactory
to Tenant. In the event the NDA is not received by Tenant on or before the
Commencement Date, Tenant may, at its option, (i) elect to terminate this Lease
by giving written notice to Landlord within five (5) days after the Commencement
Date, whereupon this Lease shall terminate, the security deposit and first
month's rent shall be returned to the Tenant, and the parties shall be relieved
from further rights, duties, and obligations hereunder, or (ii) elect to extend
the time for receipt of the NDA for an additional thirty (30) days upon written
notice to Landlord given within five (5) days after the Commencement Date,
retaining the right to terminate this Lease for failure to obtain the NDA at the
end of such thirty (30) day period in the same manner as aforesaid.
3. Use. The Premises may be used for the operation of a buffet or full
service restaurant offering seated dining and uses ancillary thereto which may
include take-out and drive-through service, and for no other purpose. Landlord
represents and warrants that, and Tenant's obligations under this Lease are
conditioned upon the current zoning of the Premises permitting Tenant to operate
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the Premises as a buffet restaurant with no fewer seats than permitted for the
Ryan's Family Steak House restaurant that most recently operated in the
Premises.
4. Rent. The "Rent Commencement Date" shall be the Commencement Date.
Subject to adjustments as set forth herein, Tenant agrees to pay, as base annual
rent for the use of the Leased Premises, each year during the first five years
of the term hereof, the sum of $84,000.00 ("Rent" or "Base Rent"), which shall
be payable in twelve (12) equal monthly installments of $7,000.00, plus
applicable sales tax, as set forth on the Rent Schedule attached hereto as
Exhibit B. All payments due under this Lease shall be paid monthly in
advance on or before the first (1st) day of each month (the "Due Date") without
reduction, abatement or set-off, and shall be mailed or delivered to Landlord's
office at the address above (or at such other address for the payment of rent
that Landlord may give notice of to Tenant). Any payment due and not paid
within seven (7) business days after receipt of written notice of nonpayment
shall bear interest retroactive from the Due Date at a rate of ten percent (10%)
per annum until paid. If the Rent Commencement Date is other than the first day
of a calendar month, the rent for the portion of said month shall be prorated at
a daily rate based upon the base monthly rent, and shall be payable on the Rent
Commencement Date. If the Rent Commencement Date is later than November 1, the
first "year" of the Term shall be reduced accordingly and still have an ending
date of October 31. Within five (5) business days after the full execution of
this Lease, Tenant shall pay to Landlord the amount of one month's rent, which
shall be applied as the first month's rent; and any excess payment attributable
to a Rent Commencement Date other than the first day of the month shall be
credited against the second month's rent.
5. Net Lease / Other Charges. Tenant acknowledges and agrees that it is
the purpose and intent of Landlord and Tenant that this Lease be a so-called
"Net Lease" that is completely carefree to Landlord and therefore, except as may
otherwise be expressly set out in this Lease, Tenant shall be responsible to
pay, or promptly reimburse Landlord for paying, all costs, charges, expenses and
outlays of any nature whatsoever arising from or relating to the Premises which
arise or become due during the term of this Lease (herein, "Other Charges"),
specifically including without limitation (i) all general property taxes and
assessments, special improvement taxes or assessments, privilege taxes, excise
taxes, business and occupation taxes, taxes upon or measured by rent,
assessments for public improvements or otherwise, levies, fees, water and sewer
charges, and all other governmental impositions and charges of every kind and
character which are now or may hereafter be levied upon or assessed against the
Premises; (ii) all taxes levied against any equipment, inventory, trade fixtures
or other personal property located in the Premises, without regard to whether
Landlord or Tenant shall own title to same; (iii) expenses incurred by Landlord
in correction of any violation of any covenant or other obligation of Tenant to
be performed under this Lease; and (iv) all applicable federal, state or local
sales taxes which may, at any time during the term of this Lease, be imposed on
the Base Rent or any other monetary charges which Tenant is required to pay to
Landlord under this Lease; provided, however, in no event shall Tenant be
responsible for paying any payments of principal or interest required under any
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mortgage encumbering the Premises or any income or similar taxes imposed upon
Landlord. At the request of Landlord, Tenant shall pay any Other Charges
directly to any governmental authority or other third party to whom such charges
are due, on or before the later of (i) ten (10) days following Tenant's receipt
of notice of such outstanding charges, or (ii) ten (10) days prior to the due
date of such charges. Tenant shall pay any Other Charges payable to Landlord
(in reimbursement for costs and expenses incurred by Landlord) on or before the
later of (a) ten (10) days following Tenant's receipt of notice of such charges,
or (b) with Tenant's next monthly installment of Base Rent due on the first day
of the first calendar month following Tenant's receipt of such notice.
6. Late Fees / Interest. The term "Rent" or "rent" as used in this lease
shall mean and refer to collectively to the Base Rent plus all Other Charges,
and in the event of any non-payment of any of the Other Charges by Tenant,
Landlord shall have in addition to all other rights and remedies, all of the
rights and remedies provided for herein or by law with respect to non-payment of
Base Rent. Without waiver, limitation or prejudice to the foregoing, as a
material inducement for Landlord's entry into this Lease, Tenant agrees that if
any payment of Rent is not received by Landlord within ten (10) days following
the due date therefor, or Tenant's check for same shall not be honored for any
reason, then, because the actual damages resulting from late payments and
dishonored checks are difficult to fix, Tenant shall pay Landlord as liquidated
damages for each such late payment or dishonored check a late fee in an amount
equal to five percent (5%) of the amount of the overdue payment. In addition,
beginning three (3) business days following Tenant's receipt of written notice
of any past due Rent, Landlord may charge interest on the said past due Rent
until paid at a rate equal to the lesser of eighteen percent (18%) or the
maximum rate allowed by law (herein, the "Default Rate").
7. Rent Escalation
.. The annual Rent to be paid to Landlord by Tenant shall be increased as
described in Exhibit B.
8. Services. Tenant shall pay before delinquency, at its sole cost and
expense, all charges for water, gas, heat, electricity, power, telephone
service, sewer service charges, and sewer rentals charged or attributable to the
Premises, and all other services or utilities used in, upon, or about the
Premises by Tenant or any of its subtenants, licensees, or concessionaires from
the Commencement Date and throughout the lease term hereof.
9. Taxes. Tenant shall be responsible for the payment of all ad valorem
taxes and assessments levied against the Premises during the Lease term. The
Landlord shall forward a copy of the ad valorem tax xxxx and any xxxx for any
assessment levied against the Premises to the Tenant for payment. The Tenant
shall pay the same before delinquency, and shall furnish the Landlord with a
copy of its check in payment of said xxxx. In the event any xxxx for ad valorem
taxes or assessments is not paid before delinquency at any time during the Lease
term, the Landlord may pay the same and shall be entitled to recover the cost
thereof from the Tenant as Other Charges hereunder. In addition, on January 31
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of the final year of the Lease term, or any Renewal Term, as the case may be,
the Tenant shall pay to the Landlord on demand the Tenant's prorata share of the
ad valorem taxes and any outstanding and unpaid assessments for that calendar
year as Other Charges hereunder.
10. Care and Maintenance of Premises. Tenant shall be solely responsible
for the maintenance, repair, and replacement of the Premises throughout the term
of this Lease, including, but not limited to, the maintenance, repair, and
replacement of all improvements located on the Premises, including the roof and
structural components thereof, all plumbing, electrical, heating, ventilation
and air conditioning systems therein, and all other improvements to the
Premises, such as the asphalt paving and concrete curbing of the parking areas
and driveways, and the landscaping located on the Premises. Landlord shall have
no responsibility whatsoever for any maintenance, repair, replacement of the
Premises or any improvements located thereon unless such is made necessary due
to the gross negligence or willful act of the Landlord. Without limitation, the
foregoing shall apply with respect to any modifications or replacements required
to be made to the Premises at any time during the term in order to comply with
any ADA or other governmental requirements. Tenant shall maintain the Premises
in good condition and repair at all times, and Tenant shall allow only licensed
and insured contractors to perform any electrical repairs, repairs to the roof
or structural components of the Premises or any repairs to any portion of the
heating, ventilating and air conditioning system. Tenant shall plan and perform
all substantial repairs in accordance with the requirements of Section 13
hereof.
11. Signage. Landlord and Tenant agree that throughout the Term and any
Renewal Terms of this Lease, Tenant and its permitted subtenants, and assignees
may erect, maintain, repair and replace any and all signs which the Tenant and
its permitted subtenants, and assignees may desire from time-to-time on the
Premises including, without limitation, building, pylon and monument signs, so
long as such signs comply in all respects and at all times with applicable
codes, ordinances, laws and statutes concerning the same, and (ii) the Tenant
and its permitted subtenants, and assignees has at its expense obtained all
necessary governmental licenses, permits, and approvals for such signs. All
such signs shall be maintained in good condition and repair at all times.
12. Renewal Option. So long as no default then exists hereunder, this
Lease may be renewed by Tenant for two (2) successive, five (5) year terms (the
"Renewal Term(s)"), if Tenant shall give written notice of renewal to Landlord
at least 90 days prior to the end of the then-current term, provided that no
Event of Default exists at the time of such Notice or occurs prior to the
commencement of the Subject Renewal Term. Each Renewal Term shall be subject to
the same terms and conditions as the initial Term, except that Tenant shall pay
to Landlord the Base Rent provided for in Exhibit "B" of this Lease.
13. Sublease and Assignment. Tenant shall not assign, sublease, transfer,
pledge, or encumber this Lease or any interest therein without Landlord's prior
written consent. For purposes hereof the transfer of all or a controlling
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interest in Tenant shall not constitute an assignment of this Lease. Any attempt
at assignment, sublease, or other transfer or encumbrance by Tenant in violation
of the terms and covenants of this paragraph shall be void. Landlord's consent
to a particular assignment, subletting, transfer, pledge, or encumbrance shall
not obviate the necessity of Landlord's consent to any future assignment,
subletting, transfer, pledge, or encumbrance, Landlord retaining the right to
consent to each and every of same.
14. Alterations by Tenant. It is understood and agreed that Tenant, at its
expense, will alter and remodel the premises to Tenant's standards to convert
the building to a Xxxxxxxx'x Buffet restaurant. Prior to the construction of
any improvements, Tenant shall submit to the Landlord for the Landlord's consent
and for the consent of Landlord's lender plans and specifications for Tenant's
alterations and improvements (the "Plans"), such consent not to be unreasonably
conditioned, delayed, or withheld. Landlord shall respond to the Plans within
twenty (20) days following receipt. If Landlord fails to respond within said
twenty (20) day period, the Plans shall be deemed approved by Landlord. Tenant
acknowledges that the Landlord has no control over the timing of the approval or
disapproval of the Plans by Landlord's lender. In the event the lender
disapproves the Plans, or in the event the lender fails to respond to the plans
within forty-five (45) days following receipt, the Tenant may at its option
elect to terminate this Lease and receive a refund of all deposits and rent that
may have been paid to Landlord. After completion of Tenant's initial alterations
and remodeling, all additions, alterations, improvements and fixtures (except
Tenant's merchandise, personal property, furniture, equipment, movable trade
fixtures and signage) in or upon the Premises, whether placed there by Tenant or
by Landlord, shall become Landlord's property and shall remain upon the Premises
at the termination of this Lease by lapse of time, or otherwise, without
compensation or allowance or credit to Tenant. After the Commencement Date,
Tenant shall not make additions, changes, alterations or improvements to the
Premises costing more than $10,000.00 in the aggregate, without the prior
written consent of Landlord. Even if Landlord's consent is not required, Tenant
shall give Landlord prior written notice specifying any work to be done. If
Landlord grants its consent, Landlord may impose reasonable requirements as a
condition of such consent including without limitation the submission of plans
and specifications for Landlord's prior written approval, obtaining necessary
permits, obtaining insurance, prior approval of contractor (not to be
unreasonably withheld) and reasonable requirements as to the manner and times in
which such work shall be done. All work shall be performed in a good and
workmanlike manner and shall be in accordance with plans and specifications
(approved by Landlord if approval is required by the above provisions). If any
of such work may affect the structure of the Building or interfere with Building
systems or operation, Landlord may require that such work be performed under
Landlord's supervision (but at no additional cost to Tenant for such
supervision). Notwithstanding the foregoing, upon expiration of the Term or
earlier termination of the Lease, Tenant may remove all of its personal
property, furniture and fixtures from the Premises, repairing any damage caused
to the Premises by such removal.
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15. Construction Lien. In no event shall Tenant have the right or
authority to create, or permit there to be established, any contractor's,
mechanic's, materialmen's or other lien or encumbrance of any nature against
Landlord's interest in the Premises or the Building for improvements made or
caused to be performed by and at the request of Tenant. Any lien filed by any
contractor, materialman or supplier performing work requested by and for Tenant
shall attach only to Tenant's interest in the Premises for work claimed to have
been furnished for Tenant. Tenant shall, within 20 business days after Tenant
receives notice of the filing of any lien for such work, duly discharge the lien
or contest such lien by posting a bond equal to the amount of the disputed claim
with companies reasonably satisfactory to Landlord. In the event that such lien
is not released and removed or bonded within 20 business days after Tenant has
received notice thereof, Landlord, at its sole option, may take all action
necessary to release and remove or bond such lien (without any duty to
investigate the validity thereof) and Tenant shall promptly upon notice
reimburse Landlord for all reasonable sums, costs and expenses (including
reasonable attorneys' fees) incurred by Landlord in connection with such lien.
16. Hazardous Substances. Tenant shall not bring upon or permit to be
brought upon the Premises any Hazardous Substances, except normal office and
restaurant supplies. Tenant shall not use the Premises for the manufacture,
storage, disposal or handling of any Hazardous Substances, except normal office
and restaurant supplies, and Tenant shall indemnify and hold harmless Landlord
from and against any and all loss, claim, damages, liability, cost or
expense, including reasonable attorney's fees actually incurred at customary
hourly rates, court costs and remediation costs and expenses incurred by
Landlord arising from or relating to Tenant's violation of the terms of this
paragraph.
17. Quiet Enjoyment. Landlord covenants and agrees, provided Tenant pays
all Rent and performs the terms and conditions of this Lease as and when
required, to take all necessary steps to secure to Tenant and to maintain for
the benefit of Tenant the quiet and peaceful possession and enjoyment of the
Premises and all rights appurtenant thereto, for the term hereof, without
disturbance, hindrance or molestation by Landlord or any other person claiming
title to the Premises or any part thereof, and Landlord warrants and forever
agrees to defend Tenant's interest under this Lease against the claims of any
and all persons other than those claiming by, through or under Tenant.
18. Insurance. At all times during the Term of this Lease and any renewals
thereof Tenant shall obtain and thereafter keep in full force and effect, (i)
commercial general liability insurance, such insurance to insure against
liability for bodily injury and death and for property damage occurring on, in
or about the Premises in an amount not less than Three Million Dollars
($3,000,000.00) combined single limit on a per occurrence basis, (ii) workmen's
compensation as required by law providing statutory benefits for all persons
employed by Tenant in connection with the Premises, (iii) builder's risk
insurance during all periods in which Tenant is constructing alterations or
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additions to or within the Premises, in reasonable amounts, (iv) fire, windstorm
and extended risk casualty insurance coverage on the improvements located on the
Premises for the full replacement cost thereof and with replacement cost
endorsement, and with a deductible of not more than Ten Thousand Dollars
($10,000.00); and (iv) at all times that Tenant is selling alcoholic beverages
for consumption within the Premises, liquor liability insurance in the minimum
amount of One Million Dollars ($1,000,000.00) covering the Premises and Tenant's
use thereof. All insurance that Tenant is required to maintain pursuant to this
Section shall (a) name Landlord as an additional insured; (b) be underwritten by
insurance companies maintaining an A.M. Best Company rating of "A-VIII" or
better and that are licensed or authorized to do business in and shall be in
good standing with the State of Florida; (c) be issued for terms of not less
than one year; and (d) shall contain a provision that they shall not be subject
to cancellation, non-renewal or material reduction in coverage as to the
Premises unless Landlord shall be served with a written notice not later than
thirty (30) days prior to cancellation, non-renewal or material reduction in
coverage (for purposes of the foregoing, "material reduction in coverage" shall
include without limitation any change from "all-risk" casualty insurance
coverage, or a material increase in deductible). Tenant shall deliver Landlord
certificates evidencing it has the required insurance coverages prior to the
Commencement Date, and Tenant shall deliver renewal certificates thereof to
Landlord prior to the expiration of each such policy. The insurance coverages
required to be maintained by Tenant shall be subject to increase by Landlord
from time to time as necessary in order to maintain a prudent level of insurance
coverage as evidenced by the prevailing practices of landlords and tenants of
similarly situated commercial properties and/or to comply with reasonable
insurance requirements that may hereafter be imposed by any existing or
hereafter arising mortgagee of Landlord's interest in the Premises. In the
event Tenant shall fail to maintain any of the insurance coverages required
hereby, then, without prejudice to any other rights or remedies available to
Landlord under this Lease, at law or in equity, Landlord shall have the right,
but no obligation, to immediately obtain such insurance on behalf of Tenant and
Tenant shall promptly reimburse Landlord for all costs Landlord shall incur in
connection therewith. Further, Tenant hereby agrees to indemnify and hold
harmless Landlord from all loss, cost or expenses which Landlord shall suffer or
incur as a result of any failure by Tenant to maintain the minimum amounts of
insurance coverages required under this Section.
19. Indemnification/Hold Harmless. Landlord, its partners,
representatives, agents, and their respective officers and employees, shall not
be liable to Tenant, or to Tenant's officers, directors, shareholders, agents,
servants, employees, customers or invitees, for any damage to person or property
in or about the Premises caused by any act, omission or neglect of Tenant and
its agents and their respective officers, directors, shareholders, and
employees, and Tenant agrees to indemnify and hold harmless Landlord from all
claims for any such damage. Tenant and its agents and their respective
officers, directors and shareholders and employees shall not be liable to
Landlord or to Landlord's partners, representatives, agents, servants,
customers, or invitees and their respective officers and employees for any
damage to person or property caused by any act, omission or neglect of Landlord,
its partners, representatives and agents and their respective officers and
employees and Landlord agrees to indemnify and hold harmless Tenant from all
claims for any such damage.
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20. Damage By Fire Or Other Casualty.
(a) Reparable Damage. If fire or other casualty insurable under a standard
fire and extended risk policy of insurance required to be carried by Tenant
covering the Premises shall render the whole or any material portion of the
Premises untenantable, and if the Premises can reasonably be expected to be
reparable within one hundred eighty (180) days from the date of such event,
subject to the Landlord's lender's right to apply the proceeds of Tenant's
insurance to its mortgage encumbering the Premises, the Tenant shall repair and
restore the Premises to their condition prior to the fire or other casualty
within such one hundred eighty (180) day period (subject to delays for causes
beyond Tenant's reasonable control such as delays due to issuance of building
permits or obtaining of insurance proceeds provided Tenant diligently pursues
the same) and notify Landlord in writing that it will be doing so, such notice
to be mailed within thirty (30) days from the date of such damage or
destruction, and this Lease shall remain in full force and effect, but the
Minimum Rent, Additional Rent and other costs for the period during which the
Premises are untenantable shall be abated.
(b) Irreparable Damage. If fire or other casualty insurable under a
standard fire and extended risk policy of insurance required to be carried by
Tenant covering the Premises shall render the whole or any material portion of
the Premises untenantable and the Premises cannot reasonably be expected to be
reparable within one hundred eighty (180) days from the date of such event, or
if an uninsurable casualty shall render the whole or any portion of the Premises
untenantable, then Landlord or Tenant, by notice in writing to the other, mailed
within thirty (30) days from the date of such damage or destruction, may
terminate this Lease effective upon a date within thirty (30) days from the date
of such notice. The Minimum Rent, Additional Rent, and all other costs shall be
abated for the period during which the Premises are untenantable. Upon
termination, all prepaid rents and/or deposits shall be returned to Tenant, any
and all insurance proceeds payable on account of such casualty shall be paid
over or assigned to the Landlord (subject to the right of Landlord's lender to
any such proceeds), and neither Landlord nor Tenant shall have any other future
obligations or responsibilities under this Lease.
(c) Repair and Restore. If Landlord or Tenant does not terminate this
Lease pursuant to its rights herein, subject to the Landlord's lender's right to
apply any insurance proceeds to its mortgage encumbering the Premises, then
Tenant shall repair and restore the Premises as the case may be to its condition
prior to the damage or destruction within that time period reasonably necessary
for such repair and restoration (subject to delays for causes beyond Tenant's
reasonable control such as delays due to issuance of building permits or
obtaining of insurance proceeds provided Tenant diligently pursues the same)
and the Minimum Rent, Additional Rent and other costs shall be abated during the
period of such restoration and/or repair. Notwithstanding anything set forth
herein to the contrary, in no event shall any rent or other payments be due to
Landlord until such time as Tenant can conduct its business from the Premises in
a reasonable, prudent and businesslike manner, without any interference
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resulting from reconstruction activities or the condition of the Premises. At
its option, the Landlord may notify the Tenant that it has elected to perform
all work repairing and restoring the Premises following a casualty, such notice
to be given within thirty (30) days from the date the damage or destruction to
the Premises occurred. Should the Landlord give the Tenant notice of its
election to perform such work, the Tenant shall promptly pay over or assign to
the Landlord all insurance proceeds payable on account of the casualty or
destruction, and the Landlord shall apply such proceeds to the repair and
restoration of the Premises performed by it.
21. Condemnation.
(a) Total Taking. If all the Premises are taken by the power of eminent
domain exercised by any governmental or quasi-governmental authority, this Lease
shall terminate as of the earlier of (i) the date Tenant is required to vacate
the Premises, or (ii) the date title passes to the condemning authority, and
upon either such date of termination, all Minimum Rent, Additional Rent, and
other costs due hereunder shall be paid to that date. The term "eminent domain"
shall include the taking or damaging of property by, through, or under any
governmental or quasi-governmental authority, and any purchase or acquisition in
lieu thereof, whether or not the damaging or taking is by the government or any
other person.
(b) Partial Taking. Tenant may terminate this Lease upon written notice to
Landlord for any of the following events of Partial Taking:
(i) If more than five percent (5 %) of the Rentable Square Feet of
Floor Area of the Premises shall be taken or appropriated;
(ii) The Premises, after the taking, would no longer satisfy the
requirements for a restaurant offering seated dining (based on Tenant's
standard restaurant requirements in Tenant's reasonable business
judgment);
(iii) The access to the Premises is adversely affected;
(iv) The visibility of the Premises is adversely affected;
(v) The parking available to the Premises is adversely affected, whether
modified or reduced; or
(vi) If Tenant's business will otherwise be adversely affected.
If tenant does not elect to terminate the Lease in the event of a Partial
Taking, the parties agree that rental due under the Lease shall be equitably
reduced in consideration of the Partial Taking. Landlord is obligated to make
Tenant whole (including, but not limited to, parking, access and visibility)
during and after the construction period.
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(c) Damages. Landlord reserves all rights to the entire damage award or
payment for any taking by eminent domain. Tenant shall, however, have the
right to claim from the condemning authority all compensation that may be
recoverable by Tenant on account of any loss incurred by Tenant, including,
but not limited to, loss due to removing Tenant's merchandise, furniture,
trade fixtures, and equipment or for damage to Tenant's business, loss of
business, and/or loss of leasehold interest; provided, however, that Tenant
may claim such damages only if they are awarded separately in the
eminent domain proceeding and not as part of Landlord's damages.
22. Force Majeure. If either Landlord or Tenant is delayed or prevented
from completing the performance of any obligation under this Lease by reason of
accident, fire, act of God, public enemy, injunction, riot, strike, lockout,
insurrection, war, court order, requisition or order of governmental body or
authority, inability to procure labor or materials from normally available
sources, or by any other cause without its fault and beyond its reasonable
control (financial inability excepted), completion will be excused for the
period of such delay and the date for completion will be extended for the period
of such delay provided notice of the occurrence or encountering of such cause is
given to the other party within 10 days after such occurrence or encounter and
notice of the duration of such cause is given with 10 days after the cessation
of such cause. However, in no event shall the provisions of this paragraph be
applicable to extend or delay the ultimate date for the completion of
construction of the Premises or the date for delivery of possession of the
Premises to Tenant, as specified herein.
23. Subordination. This Lease is and shall be subject and subordinate to
any mortgage, deed of trust, or other lien created by Landlord whether presently
existing or hereafter arising upon the Premises, and to any renewals,
refinancings, and extensions thereof, but Tenant agrees that any such mortgagee
shall have the right at any time to subordinate such mortgage, deed of trust, or
other lien to this Lease on such terms and subject to such conditions as such
mortgagee may deem appropriate in its discretion. Tenant agrees that it will
from time to time upon request by Landlord execute and deliver to such persons
as Landlord shall request a statement in recordable form certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the Lease is in full force and effect as modified) stating
the dates to which Rent and other charges payable under this Lease have been
paid, stating that Landlord is under default hereunder (or if Tenant alleges a
default, stating the nature of such alleged default) and further stating such
other matters as Landlord or its mortgagee shall reasonably require. Tenant
agrees that it shall attorn to any purchaser or mortgagee of the Premises from
and after the acquisition thereof by purchaser or mortgagee. Provided, however,
the said subordinations and attornment shall be subject to and conditioned upon
the agreement that Tenant's rights as Tenant hereunder shall not be disturbed so
long as no Event of Default has occurred and is continuing under the terms of
the Lease. Provided further, and notwithstanding the foregoing, Landlord agrees
that its rights under this Lease, including without limitation any contractual
or statutory landlord's lien on any property of Tenant, shall be subordinate to
the lien(s) of any lender(s) that may attach to or may hereafter be placed upon
11
Tenant's furniture, trade fixtures and equipment, which subordination shall
apply to any and all advances of funds made by such lender(s) and all renewals,
replacements and extensions thereof; and Landlord agrees that the lien of any
such lender as to the Tenant's furniture, trade fixtures, and equipment shall be
deemed to be prior and superior to any contractual or statutory landlord's lien
regardless of the dates or the record priority of any applicable documents or
instruments.
24. Estoppel Certificate. Landlord and Tenant agree that they will from
time to time upon request from each other, within 15 business days after notice
from the other, execute and deliver to such persons as the requesting party
shall request, a statement certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as so modified), stating the dates which rent and other charges
payable under this Lease have been paid, stating the commencement and
termination dates of the current term of the Lease and stating whatever options
to extend there may be in the Lease, stating that Landlord or Tenant, as
applicable, is not in default hereunder to the best of such party's knowledge
after due inquiry (or if Landlord or Tenant, as applicable, have alleged a
default, stating the nature of such alleged default), and further stating such
other matters relating to the Lease as the requesting party shall reasonably
require.
25. Landlord's Default. Landlord's failure to perform any of its
obligations under this Lease for a period of twenty (20) days after receiving
notice from Tenant specifying in reasonable detail the nature and extent of such
default, or if the default so specified shall be of such a nature that the same
cannot reasonably be cured or remedied within said twenty (20) day period and
Landlord shall fail to promptly commence and thereafter continuously and
diligently prosecute the cure or remedy of such default to completion. then
Landlord shall be in "Default" hereunder.
If Landlord commits a Default, Tenant, in addition to any remedies
available under the law, may, without being obligated and without waiving the
Default, with additional five (5) business day notice to Landlord, cure the
Default on behalf of Landlord. Landlord shall pay Tenant, upon demand, all
costs, expenses, and disbursements incurred by Tenant to cure the Default. If
such payment is not rendered within thirty (30) days of demand, Tenant may
deduct all such costs and expenses from the rent next coming due. If Tenant
elects not to cure the Default by Landlord, Landlord shall remain responsible to
cure the Default and liable to Tenant for any direct damages suffered by Tenant
as a consequence of Landlord's failure to cure the Default.
It is understood and agreed that Tenant's exercise of any right or remedy
to a default or breach by Landlord shall not be deemed a waiver of or to alter,
affect, or prejudice any right or remedy which Tenant may have under this Lease
or by law or in equity. Neither the payment of rent nor any other act or
omission of Tenant at any time or times after the happening of any Default shall
operate as a waiver of any past or future violation, breach, or failure to keep
or perform any covenant, agreement, term, or condition hereof, or to deprive
Tenant of its right to pursue or exercise at any time any option, right or
12
remedy that Tenant may have under any term or provision of this Lease, at law or
in equity.
26. Tenant Default. It shall be a default ("Event of Default") hereunder
if (i) Tenant shall fail to pay any rent or any other sums of money within ten
(10) business days after receipt of written notice that the same is due; (ii)
Tenant shall fail to comply with any other provision of this Lease and after
receipt of written notice, fail to promptly commence and thereafter continue
with diligence to correct any default within thirty (30) days after written
notice or the additional time, if any, that is reasonably necessary; (iii) the
Premises shall be taken on execution or other process of law in any action
against Tenant; (iv) Tenant shall become insolvent or unable to pay its debts
as they become due, or Tenant notifies Landlord in writing that it anticipates
either condition; (v) Tenant takes any action, or notifies Landlord in writing
that Tenant intends, to file a petition under any section or chapter of the
Bankruptcy Code as amended, or under any similar law or statute of the United
States or any State thereof; or a petition shall be filed against Tenant under
any such statute which is not dismissed within 60 days after the filing thereof;
or (vi) a receiver or trustee shall be appointed for Tenant's leasehold interest
in the Premises or for all or a substantial part of the assets of Tenant and not
discharged within 60 days after the appointment of a receiver or trustee.
On the occurrence of any Event of Default and after the applicable notice
and cure period, and subject to terms and conditions provided herein, Landlord
may;
(i) without terminating this Lease and without entering into possession of
the Premises, continue this Lease in effect and enforce all rights of Landlord
and obligations of Tenant hereunder, including the filing of suit for the
collection of monthly rent, Other Charges, and all other sums due hereunder as
they accrue (including attorneys' fees and other damages). Acts of maintenance
or preservation, efforts to relet the Premises, or the appointment of a receiver
upon Landlord's initiative to protect its interest under this Lease shall not
constitute a termination of this Lease or Tenant's right to possession
hereunder;
(ii) re-enter and repossess the Premises and remove all persons and
property therefrom either by summary dispossess proceedings or by a suitable
action or proceeding at law or in equity, or by force or otherwise, without
being liable for any damage therefor. No re-entry by Landlord shall be deemed a
termination or an acceptance of a surrender of this Lease;
(iii) Terminate this Lease and xxx Tenant for damages hereunder which
damages shall be an amount equal to (A) the sum of all amounts due hereunder to
the date of termination; plus (B) the aggregate rent remaining over the
unexpired portion of the Term plus the reasonable cost to Landlord for any
repairs and other costs of reletting, all reduced to present value using a
discount rate equal to the interest rate of a governmental security having a
maturity closest to the then current expiration of the Term; less (C) the
13
aggregate fair net rental value of the Premises over the remaining portion of
the Term provided, however, a reasonable period of time, not to exceed six (6)
months, may be considered as a leasing period by which the Premises would not be
leased and therefor no income would be realized for such period reduced to
present value; plus (D) Landlord's costs and expenses incurred in the
enforcement hereof including reasonable attorneys fees as herein provided;
(iv) relet any or all of the Premises for Tenant's account for any or all
of the remainder of the Term or for a period exceeding such remainder, in which
event Tenant shall pay to Landlord, at the times and in the manner specified by
the provisions herein the rent accruing during such remainder, less any rent
received by Landlord, with respect to such remainder, from such reletting, as
well as the cost to Landlord of any reasonable attorney's fees actually incurred
at customary hourly rates, or for any repairs or cost of reletting or other
action (including those taken in exercising Landlord's rights under any
provision of this Lease ) taken by Landlord on account of such Event of Default,
but in no event shall Landlord be liable in any respect for failure to relet the
Premises after good faith efforts to do so or in the event of such reletting,
for failure to collect the rent thereunder. Any sums received by Landlord on a
reletting in excess of the rent reserved for this Lease shall belong to
Landlord;
(v) cure such Event of Default in any other manner (after giving Tenant
written notice of Landlord's intention to do so except in the case of
emergency), in which event Tenant shall reimburse Landlord for all expenses
reasonably incurred by Landlord in doing so, plus interest at the Default Rate,
which expenses and interest shall be additional rent and shall be payable by
Tenant immediately on demand therefor by Landlord; and/or
(vi) pursue any combination of such remedies and/or any other remedy
available to Landlord on account of such Event of Default at law or in equity.
If legal proceedings are instituted hereunder, and a compromise or
settlement thereof shall be made, it shall not be constituted as a waiver of any
subsequent breach of any covenant, condition or agreement herein contained.
All such remedies of Landlord shall be cumulative, and in addition,
Landlord may pursue any other remedies that may be permitted by law or in
equity. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
a waiver of such default.
27. Security Deposit. Tenant shall deliver to Landlord the sum of $7,000.00
(the "Security Deposit") to be held by the Landlord without interest as security
for Tenant's faithful performance of this Lease. Landlord may co-mingle the
Security Deposit with Landlord's other funds, and Landlord may from time to time
without prejudice to any other remedy use the Security Deposit to the extent
necessary to make good any arrearages of Rent or to satisfy any other covenant
or obligation of Tenant hereunder. Following any such application of the
14
Security Deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit from its original amount. If Tenant is
not in default at the expiration or sooner termination of this Lease, the
balance of the Security Deposit remaining after any such application shall be
returned by Landlord to Tenant. If Landlord transfers its interest in the
Premises during the term of this Lease, Landlord shall assign the Security
Deposit to the transferee and thereafter Landlord shall have no further
liability for the return of such deposit.
28. Holding Over. In the event Tenant or anyone claiming under Tenant shall
remain in possession of the Premises after the expiration or earlier termination
of the Lease term, Tenant shall liable for all damages suffered by Landlord as a
consequence of Tenant's failure to timely surrender possession of the Premises
to Landlord, including without limitation, any loss of a new tenant or damages
required to be paid to a new tenant in connection with Landlord's failure to
timely deliver possession of the Premises to such new tenant as a result of
Tenant's failure to timely surrender possession of the Premises to Landlord.
Without limitation on the foregoing, and not as liquidated damages in any way,
in the event of such holding over by Tenant without Landlord's written consent,
Tenant shall be deemed to be occupying the Premises subject to all of the terms
of this Lease which may be applicable to such continued occupancy and at a
monthly Base Rent equal to one hundred fifty percent (150%) of the Base Rent in
effect during the last full calendar month of the Lease term plus other sums due
from time to time hereunder.
29. No Offer. The submission of this Lease by either party to the other
for review shall not be considered an offer to enter into this Lease and such
submission shall not bind either party in any way until both Landlord and Tenant
have each executed and delivered duplicate originals of this Lease.
30. No Construction Against Drafting Party. Landlord and Tenant
acknowledge that each of them and their respective counsel have had an
opportunity to review this Lease and that this Lease shall not be construed for
or against either party merely because such party prepared or drafted this Lease
or any particular provision thereof.
31. Severability. If any provision of this Lease or the application
thereof to any person or circumstance shall to any extent be or become illegal,
invalid or unenforceable, the remaining provisions of this Lease, or the
application of such provision to other persons or circumstances, shall not be
affected thereby and each remaining provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
32. Time of the Essence. Except as otherwise expressly provided herein,
time is of the essence with respect to all required acts of Tenant and Landlord
and each provision of this Lease.
15
33. Brokerage Commissions. Landlord and Tenant warrant and represent that
they have not dealt with any real estate broker or salesman in connection with
this Lease except Xxxxxxxx, Xxxxxxx & Grunthal Real Estate Services, Inc. and
Landlord shall be solely responsible for the payment of any fees or commissions
due. Landlord and Tenant further represent they have dealt with no other person
which would create any liability for the payment of a commission by the other
party. The party who breaches this warranty shall defend, hold harmless, and
indemnify the non-breaching party from any claims or liability arising from the
breach.
34. Authority to Execute Lease. Tenant represents and warrants that this
Lease has been duly authorized, executed and delivered by and on behalf of
Tenant and constitutes the valid, binding, and enforceable agreement of Tenant
in accordance with the terms hereof. Landlord represents and warrants that
Landlord is the owner of fee simple title to the property on which the
Premises is located, this Lease has been duly authorized, executed and delivered
by and on behalf of Tenant, and constitutes the valid, binding and enforceable
agreement of Landlord in accordance with the terms hereof.
35. Notices. All notices, demands, consents and approvals which may be or
are required to be given by either party to the other hereunder shall be in
writing and shall be deemed to have been fully given and received upon actual
delivery (or refusal to accept delivery) to the address of all parties
designated to receive notice as set forth below or to such other place as the
party to be notified may from time to time designate by at least 10 business
days notice to the other parties. Notices, demands, consents and approvals
shall be deemed properly given only by: (a) personal delivery; or (b) sent by
Federal Express or other nationally-recognized overnight delivery service; or
(c) deposit in the United States mail certified, return receipt requested with
postage prepaid. Until changed in the manner set forth above, the addresses for
notice are as follows:
If to Tenant: Xxxxxxxx'x Buffet, Inc.
000 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with copy to: Xxxxxxxxx Xxxxx, PLLC
Attention: Xxxxxxx X. Xxxxxx, Esquire
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Landlord: Family Steak Houses of Florida, Inc.
Attention: Xx. Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
16
Telephone: 000-000-0000
Telecopier: 000-000-0000
With a copy to Xxxxxx & Lane, P.A.
Attention: Xxxxxx X. Xxxx, III, Esquire
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to Mortgagee: GE Capital Corporation
Attention: Xxxxxxx Xxxxx
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Telephone: 000-000-0000
Telecopier: 000-000-0000
36. Entire Agreement. This Lease contains the entire agreement between the
parties hereto with respect to its subject matter and negotiations relating
thereto, and supersedes all previous letter agreements. This Lease may be
amended only by subsequent written agreement between the parties. Except for
those that are set forth in this Lease, no representations, prior written or
oral promises, warranties or agreements made by Landlord or Tenant shall be
applicable to this Lease.
37. Governing Law. This Lease shall be governed by and shall be construed
and interpreted in accordance with the laws of the State of Florida.
38. Attorney's Fees. In the event Tenant or Landlord defaults in the
performance of any of the terms, covenants, agreements or conditions contained
in this Lease or in the event Landlord places the enforcement of this Lease for
the collection of any Rent due or to become due, or the recovery of possession
of the Premises in the hands of an attorney, or in the event either party files
suit against the other, with respect to the enforcement of its rights under
this Lease, Tenant and Landlord agree that the prevailing party shall be
entitled to be reimbursed by the non-prevailing party for all reasonable
attorney's fees, expert witness fees, paralegal fees and court costs incurred by
the prevailing party or as otherwise may be determined by arbitration under
Section 55 hereof.
39. Arbitration. If a dispute arises under this Lease relative to an issue
which this Lease provides should be arbitrated, including but not limited to
apportionment, valuation, rental rates for options or extension periods and set-
off provisions, and the parties to this Lease are unable to reach a mutually
acceptable resolution, the parties shall proceed to resolve the dispute in the
manner herein provided. Either party shall notify the other in writing of its
position, and in the case of a monetary dispute, the amount acceptable to it.
Such notification shall also include the names and addresses of three (3)
17
persons residing in the State of Florida with experience in commercial real
estate matters, who have agreed to serve as arbitrator in accordance with the
provisions of this Arbitration section, any one of which is acceptable to the
notifying party to serve as arbitrator. Within ten (10) business days following
such notifications, the party notified shall advise the other party, in writing,
of its position, and in the case of a monetary dispute, the amount acceptable to
it. Such notification shall also include the names and addresses of three (3)
persons residing in the of Florida with experience in commercial real estate
matters, who have agreed to serve as arbitrator in accordance with the
provisions of this Arbitration section, any one of which is acceptable to the
notifying party to serve as arbitrator. Once the parties have notified each
other as provided, the written position submitted by each party cannot
subsequently be revised by the submitting party, nor can substitutions be made
to the lists of names accompanying the notifications. If within ten (10) days
after both parties have been notified of their respective positions, the parties
are unable to reach a mutually acceptable resolution, then the parties shall
select one person from all of the names submitted who shall be appointed as the
arbitrator. If, within the time specified, the parties are unable to mutually
agree on the person to serve as arbitrator, either party may apply to the
presiding judge of the District Court of Xxxxx County, Florida to select the
arbitrator from the list of names initially submitted by both parties. Within
five (5) days following selection of the arbitrator each party shall furnish the
arbitrator with its written position as set forth in the notification originally
furnished. Each party may also include at this time any information, data
and/or reports, supportive of its position. The arbitrator may request
additional information, data or reports from the parties or others if the
arbitrator so desires. Within ten (10) business days following appointment, the
arbitrator shall notify both parties in writing of the arbitrator's decision
which shall be the position of one of the parties. Such decision shall not
deviate in any way from the position initially stated by the party whose
position has been selected by the arbitrator, it being the intent that the
arbitrator shall select the position of one of the parties. If either of the
parties shall fail to furnish the arbitrator its position within the time and in
the manner as herein specified, the arbitrator shall consider such party's
position to be identical to the position of the other. The decision of the
arbitrator shall be final and shall be binding upon the parties and effective as
of the date of notification to the parties of the arbitrator's decision. The
party whose position is not selected by the arbitrator as the decision shall
promptly pay to the arbitrator the total fees and expenses of the arbitrator.
Notwithstanding the foregoing, this Section shall not apply for instances of the
non-payment of Rent or disputes with respect to Rent.
40. Radon Gas. Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risk to persons who are exposed to it over time. Levels of radon that exceed
Federal and State Guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
41. Confidentiality. Each party hereto agrees not to disclose the economic
terms of this Lease except as each party respectively determines to be necessary
18
for the conduct of its business or as may be required by a court of law or
governmental authority. Neither party shall issue any press releases pertaining
to this Lease or containing the economic terms of this Lease without the prior
written consent of the other party.
42. Number of Execution Copies. This Lease may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument.
43. Memorandum of Lease. Neither Landlord nor Tenant shall permit, allow
or cause this Lease, or any amendment hereto, to be recorded in any public
registry or office of register of deeds; however, at the request of either
party, Landlord and Tenant agree to execute a recordable memorandum of this
Lease setting forth the names and addresses of the parties, a reference to the
lease with its date of execution, a specific legal description of the Premises,
the actual Commencement Date of the Lease, the term of the Lease, and any
renewal Terms, which memorandum may be recorded by Tenant at Tenant's expense or
by Landlord at Landlord's expense in the appropriate public records of the
county or counties in which the Premises is situated.
44. Waiver of the Right to Trial by Jury. Landlord and Tenant hereby
knowingly and intentionally waive the right to trial by jury in any action or
proceeding that Landlord or Tenant may hereinafter institute against each other
with respect to any matter arising out of or related to this Lease or the
Premises.
45. Discontinued Operations. In the event Tenant shall at any time during
the term of this Lease discontinue its business operations in the Premises
Building for a period of sixty (60) days or longer, and the reason for Tenant's
discontinuation of business is not due to (a) the repairing or remodeling of the
Premises Building, (b) a casualty loss, (c) union or labor difficulties, or (d)
any other reason beyond the reasonable control of Tenant [financial ability
excluded], then Landlord may (but shall not be obligated to) terminate this
Lease by giving Tenant written notice of Landlord's election to so terminate the
Lease (a "Termination Notice"). Any such Termination Notice shall set forth a
date (the "Termination Date") not less than thirty (30) days nor more than one
hundred twenty (120) days after the date of the Termination Notice. Tenant may
void the Termination Notice by (A) within ten (10) days following Tenant's
receipt of the Termination Notice, notifying Landlord in writing of Tenant's
intent to promptly recommence its business operations in the Premises Building,
and (B) recommencing its business operations in the Premises Building within
thirty (30) days following its receipt of Landlord's Termination Notice. Unless
Tenant shall so effectively void the Termination Notice, this Lease shall
terminate as of the Termination Date as if such date were the date originally
fixed herein for the termination of this Lease.
46. Transfer of Title. In the event Landlord shall hereafter sell, convey,
assign, transfer or exchange Landlord's interest in the Premises, including a
transfer pursuant to a foreclosure or delivery of deed in lieu of foreclosure or
a transfer by operation of law (herein, a "Transfer"), (i) such Transfer of
19
Landlord's interest in the Premises shall be subject to the terms and conditions
of this Lease, (ii) Tenant's tenancy hereunder shall not be disturbed so long as
Tenant shall not be in default under this Lease beyond any applicable grace or
cure period, (iii) Tenant shall recognize and attorn to such purchaser, assignee
or transferee, (iv) Landlord shall be, without further agreement between
Landlord and Tenant, or between Landlord or Tenant and the transferee,
released and relieved of all covenants and obligations of Landlord under this
Lease arising or to be performed after the date of such Transfer, and (v) Tenant
shall look solely to such successor in interest of Landlord for performance of
such obligations.
47. Not a Partnership. The provisions of this Lease are not intended to
create, nor shall they be interpreted in any way to create, a joint venture, a
partnership or any similar relationship between Landlord and Tenant. In
particular, Landlord does not, in any way or for any purpose, become a partner
of Tenant in the conduct of Tenant's business, or otherwise.
48. Financial Statement. Forty-five (45) days after the end of each fiscal
quarter, Tenant shall deliver to the Landlord's mortgagee (the "Lender"), a
profit and loss statement for its business conducted at the Premises, and within
one hundred twenty (120) days after the end of the Tenant's fiscal year, the
Tenant shall deliver to the Lender, a balance sheet and profit and loss
statement for the fiscal period then ended. All such financial statements shall
be prepared in accordance with generally accepted accounting principals
consistently applied from period to period and shall be certified to be accurate
and complete by the chief financial officer or other appropriate officer of the
Tenant. The Lender shall use commercially reasonable efforts to ensure that
such financial information supplied by the Tenant remain confidential.
IN WITNESS WHEREOF, the parties hereto have duly executed multiple
counterparts of this Lease in their respective names by their respective
authorized representatives, effective as of the date set forth above.
LANDLORD:
FAMILY STEAK HOUSES OF
FLORIDA, INC.
_______________________________ By:___________________________
_______________________________ Name:_________________________
Title:________________________
[CORPORATE SEAL]
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TENANT:
XXXXXXXX'X BUFFET, INC.,
doing business in Florida as Xxxxxxxx'x
Buffet of Tennessee, Inc.
________________________________ By:________________________________
Name:______________________________
________________________________ Title:______________________________
[CORPORATE SEAL]
21
STATE OF ______________
COUNTY OF ____________
The foregoing instrument was acknowledged before me this _____ day of
_________, 2002 by ____________________ as _____________________________,
FAMILY STEAK HOUSES OF FLORIDA, INC., on behalf of the corporation. He is
personally known to me or has produced ____________ as identification.
Name:_________________________
NOTARY PUBLIC, State and County
Aforesaid
Commission No.
My Commission Expires:
STATE OF ______________
COUNTY OF ____________
The foregoing instrument was acknowledged before me this _____ day of
_________, 2002, by ____________________ as _____________________________, of
XXXXXXXX'X BUFFET, INC. on behalf of the corporation. He is personally known to
me or has produced ____________ as identification.
Name:__________________________
NOTARY PUBLIC, State and County
Aforesaid
Commission No.
My Commission Expires:
22
EXHIBITS
Paragraph Exhibit
A Legal Description of Premises
B Rent Schedule
23
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
A portion of the Xxxxxx Y Xxxxxx Xxxxx, Section 38, Township 2 South, Range 29
East, Xxxxx County, Florida being more particularly described as follows:
Commence at the Southwest corner of Xxx 00, Xxxxx 00, as shown on the Xxxxx
Xxxxxx Plat No. 2 of Florida Beach, as recorded in Plat Book 11, Page 61 of the
current public records of Xxxxx County, Florida; thence North 89 deg 29 min 50
sec East, along the Northerly line of the 20 foot alley as shown on said plat
and its Easterly prolongation and the Southerly line of those lands described in
Official records Volume 1659, Page 53, of the Current public records of said
County, a distance of 714.22 feet to the Southeast corner of Xxx 00, Xxxxx 00 as
shown on said plat; thence North 00 deg 30 min 10 sec West along the Easterly
line of said Lot 24, a distance of 82.00 feet to the Southerly right of way line
of Xxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx Xx. 00 (as per J.T.A. Right of Way Map
Project No 72100-3178, dated 7/29/66 and as described and recorded in Official
Record Volume 2668, Page 781 of the current public records of said County);
thence along said Southerly right of way line, run the following three courses
and distances: Course No. 1: North 89 deg 29 min 50 sec East, 80.00 feet;
Course No. 2: North 85 deg 12 min 29 sec East, 240.67 feet; Course No. 3: North
89 deg 29 min 50 sec East, 315.00 feet to the centerline of Xxxxxx Trail as
shown on the Plat of Xxxxx Ferrar Plat No. 2 of Florida Beach; and the Point of
Beginning; thence Southerly along said centerline, also being the Easterly
boundary of said Xxxxx Xxxxxx Plat No. 2 of Florida Beach, run the following two
courses and distances: Course No. 1: South 00 deg 30 min 10 sec East, 133.48
feet to the point of curvature of a curve to the left; Course No. 2: Southerly
along the arc of said curve being concave Easterly and having a radius of
1796.05 feet, an arc distance of 258.37 feet, said are being subtended by a
chord bearing and distance of South 04 deg 37 min 26 sec East, 258.15 feet;
thence North 80 deg 00 min 18 sec East, 127.11 feet; thence North 87 deg 08 min
51 sec East, 100.00 feet; thence South 83 deg 03 min 09 sec East, 24.43 feet to
the Westerly line of those lands described and recorded in Official Records
Volum 4454, Page 62 of said current public records; thence Northerly along said
Westerly line of last said lands and along the arc of a curve concave Easterly
and having a radius of 1546.05 feet, an arc distance of 236.51 feet, said arc
being subtended by a chord bearing and distance of North 04 deg 53 min 07 sec
West, 236.28 feet to the point of tangency of said curve; thence North 00 deg 30
min 10 sec West and continuing along the Westerly line of last mentioned lands,
133.48 feet to the aforementioned Southerly right of way line of Atlantic
Boulevard; thence South 89 deg 29 min 50 sec West, along last said line, 250.00
feet to the Point of Beginning.
24
Together with the rights and privileges set forth in Non-exclusive Mutually
Reciprocal Roadway Easement for Ingress and Egress and Parking Easement recorded
in Official Records Volume6220, page 1086 as amended in Official Records Volume
6269, page 1436, current public records of Xxxxx County, Florida, more
particularly described as follows:
A portion of the Xxxxxx X. Xxxxxx Xxxxx, Section 38, Township 2 South, Range 29
East, Xxxxx County, Florida, being more particularly described as follows:
COMMENCE at the Southwest corner of Xxx 00, Xxxxx 00, as shown on the plat of
Xxxxx Xxxxxx Plat No. 2, of Florida Beach, as recorded in Plat Book 11, Page 61,
of the Current Public Records of Xxxxx County, Florida; thence North 89 deg 29
min 50 sec East, along the Northerly line of the 20 foot alley as shown on said
plat and its Easterly prolongation and the Southerly line of those lands
described in Official Records Volume 1659, Page 53, of the Current Public
Records of said County, a distance of 714.22 feet to the Southeast corner of Xxx
00, Xxxxx 00, as shown on said plat; thence North 00 deg 30 min 10 sec West
along the Easterly line of said Lot 24, a distance of 82.00 feet to the
Southerly right of way line of Xxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx Xx. 00 (as per
J.T.A. Right of Way Map Project No. 72100-3178, dated 7/29/66 and as described
and recorded in Official Records Volume 2668, Page 781 of the Current Public
Records of said County); thence along said Southerly right of way line run the
following three courses and distances: Course No 1: North 89 deg 29 min 50 sec
East, 80.00 feet; Course No. 2: North 85 deg 12 min 29 sec East, 240.67 feet;
Course No 3: North 89 deg 29 min 50 sec East, 315.00 feet to the centerline of
Xxxxxx Trail as shown on the plat of Xxxxx Xxxxxx Plat No. 2 of Florida Beach;
thence Southerly along said centerline, also being the Easterly boundary of said
Xxxxx Xxxxxx Plat No. 2 of Florida Beach; run the following two courses and
distances: Course No. 1: South 00 deg 30 min 10 sec East, 133.48 feet to the
point of curvature of a curve to the left; Course No. 2: Southerly along the arc
of said curve being concave Easterly and having a radius of 1796.05 feet, an arc
distance of 258.37 feet, said arc being subtended by a chord bearing and
distance of Fouth 04 deg 37 min 26 sec East, 258.15 feet for a POINT OF
BEGINNING; thence North 80 deg 00 min 18 sec East, 127.11 feet; thence North 87
deg 08 min 51 sec East, 100.00 feet; thence South 83 deg 03 min 09 sec East,
24.42 feet to the Westerly line of those lands described and recorded in
Official Records Volume 4454, Page 62 of said Current Public Records; thence
Southerly along said Westerly line of last said lands and along the arc of a
curve concave Easterly and having a radius of 1546.05 feet, an arc distance of
58.46 feet, said arc being subtended by a chord bearing and distance of South 10
deg 21 min 03 sec East, 58.45 feet; thence South 89 deg 29 min 50 sec West,
parallel to said Southerly right of way line of Atlantic Boulevard, a distance
of 242.00 feet; thence North 37 deg 55 min 39 sec West, a distance of 24.87 feet
to said curved Easterly boundary and the arc of said curve, a distance of 16.12
feet, said arc being subtended by a chord bearing and distance of North 09 deg
00 min 08 sec West, 16.12 feet to the POINT OF BEGINNING.
25
EXHIBIT B
RENT SCHEDULE
(Initial Term)
Years Monthly Annually
1-5 $7,000.00 $84,000.00
6-10 $7,700.00 $92,400.00
(Renewal Term)
11-15 $8,470.00 $101,640.00
16-20 $9,317.00 $111,804.00
NOTE: The above amounts do not include applicable Florida sales tax.
Tenant shall pay such sales tax with each installment of rent.
26
