LEASE
This lease made effective as of the 1st day of October, 1997, by and
between Riverfront Capital Business Trust, a Pennsylvania business trust,
having its principal offices at Suite 602, 0000 Xxxxx Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, XX 00000, hereinafter called Landlord, and Ruby Tuesday, Inc.,
a Georgia corporation having its principal offices at 0000 Xxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxx, 00000, hereinafter called Tenant.
WITNESSETH:
1. PREMISES. Landlord hereby leases to Tenant the space
outlined and cross-hatched on the floor plans designated Exhibit A,
attached hereto and made a part hereof, such space referred to
hereinafter as the Premises and consisting of approximately 49,954 total
rentable square feet of the second floor and basement in a building
("Building") located at 0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000.
2. USE. To be used and occupied by the Tenant for offices and
office equipment and all other uses incidental and related hereto.
3. TERM. The Term of this Lease shall commence on October 1,
1997 and shall continue for a period of ten years, ending on September
30, 2007.
4. EXTENSION PERIODS. Provided that Tenant is not in default hereof,
Tenant may, at its option, extend this Lease for two (2), additional
five (5) year periods, subject to rent escalations and provisions as
hereinafter set forth, and otherwise upon the same terms and
conditions contained herein, by giving notice to the Landlord of its
intention to extend, at least six (6) months prior to the end of the
Term.
5. BASE RENT. During the entire initial term hereof, Tenant
shall pay to Landlord as base rent the sum of SIX MILLION TWO HUNDRED
FORTY-FOUR THOUSAND TWO HUNDRED FIFTY AND NO/100 Dollars
($6,244,250.00). The Base Rent shall be payable as follows:
The monthly installment of $52,035.42 shall be paid in
advance, without notice, on or before the first day of each month
during the term.
6. BASE RENT FOR EXTENSION PERIODS. The Base Rental during the
First and Second Extension Periods shall be an amount equal to the
prevailing fair market rental value of the Premises as determined by
reference to comparable space in the Building, and in comparable
buildings, for comparable tenants, in the City of Mobile, Alabama, at
the time of commencement of each extension period, but in no event
shall the Base Rental for the first year of any Extension Term be less
than one hundred ten percent (110%) of the Base Rent plus any
Operating Rent, as hereinafter defined, or additional rent being paid
by Tenant during the year prior to Tenant's exercise of its option to
extend the Lease. In the event Tenant exercises either of its options
as provided for in this Lease, Landlord shall, within thirty (30) days
after receipt of Tenant's extension notice, send to Tenant Landlord's
written evaluation ("Landlord's Evaluation") for the prevailing fair
market rental value of the Premises as of the time of commencement of
the extension period. Within thirty (30) days thereafter, Tenant
shall send to Landlord a notice ("Tenant's Acceptance or Rejection
Notice") stating either (i) Tenant's agreement with Landlord's
Evaluation, in which event said amount shall be the Base Rent payable
by Tenant for the five (5) year term of the extension period plus any
Operating Rent, as hereinafter defined, or additional rent being paid
by Tenant at the time the option to extend is exercised or (ii)
Tenant's rejection of Landlord's evaluation. If Tenant and Landlord
cannot agree on the fair market rental value within sixty (60) days
after Landlord's receipt of the extension notice, the value shall be
determined by a qualified appraiser mutually agreeable to Landlord and
Tenant. If Landlord and Tenant cannot agree on an appraiser, each
shall select an appraiser and the two appraisers shall select a third.
The majority vote of the appraisers shall control.
7. RENTS IN DEFAULT. If any installment or payment of Rent is
not received by Landlord within ten (10) days following the day such
installment or payment was due, then Tenant shall pay Landlord a
charge of Five (5%) Percent for each such late installment or payment,
the same being a non-exclusive remedy hereunder. Late rental payments
also shall bear interest at the rate of twelve percent (12%) per
annum.
8. OCCUPANCY.
(a) Beginning October 1, 1997, Landlord shall deliver to Tenant and
Tenant shall accept the Premises containing approximately 49,954
rentable square feet.
(b) Except as otherwise may be provided for in this Lease, Tenant
shall take occupancy of the space in its As-Is condition.
9. OPERATING EXPENSES. In addition to the Base Rent payable by
Tenant, Tenant will pay to Landlord, as additional rent, an amount
equal to the increase in operating expenses, as hereinafter defined,
for each of the lease years over the operating expenses, for the first
lease year (October 1, 1997, through September 30, 1998, hereinafter
referred to as the Base Lease Year) times 45% (Tenant's Proportionate
Share). Lease Year shall mean the period beginning October 1 of each
year and ending on September 30 of the following year. The additional
rent due pursuant to this section is hereinafter referred to as
Operating Rent.
During September of each year, or as soon after September as practicable,
Landlord will give Tenant notice of Landlord's estimate of any Operating
Rent due for the next Lease Year. The Tenant will pay 1/12th of the
estimated Operating Rent at the time Base Rent is payable. The estimated
Operating Rent payments will begin October 1 of each year and continue
through September 30 of the following year.
As soon as practicable after the end of each Lease Year, Landlord will
deliver to Tenant a statement of the actual Operating Rent for that Lease
Year. If Landlord's statement shows that Tenant owes an amount that is
less than the estimated Operating Rent payments made by Tenant for such
Lease Year, Landlord will credit such excess first against any sums then
owed by Tenant to Landlord and then against the next payments of rental.
If Landlord's statement shows that Tenant owes more than the estimated
Operating Rent payments made by Tenant for such Lease Year, Tenant will
pay the deficiency to Landlord within thirty (30) days after delivery of
the statement.
The termination of this Lease will not affect the obligations of Landlord
and Tenant pursuant to this section be performed after termination.
"Operating expenses" are defined as all direct expenses of operating and
maintaining the land, building, and Premises in a manner deemed
reasonable and appropriate and for the best interest of the tenants in
the building, including, but not limited to, the following:
(a) All costs and expenses directly related to the land, building, and
Premises for operating and cleaning the Tenant's space in the
building, and common areas , and for removing snow, ice and debris,
and costs of fire and extended coverage and liability insurance.
(b) All costs and expense, other than those of a capital nature, of
replacing paving, curbs, walkways, landscaping (including
replanting and replacing flowers and other planting), common and
public lighting facilities in the building and on the land.
(c) Power for lighting common and public areas; power and fuel used in
lighting, heating, ventilating and air-conditioning the building;
water used by the occupants of the building.
(d) Normal maintenance of mechanical and electrical equipment,
including heating ventilating and air-conditioning equipment in the
building, but excluding capital expenditures.
(e) Window cleaning and janitor service, including janitor equipment
and supplies for the common and public areas.
(f) Maintenance of elevators, restrooms, lobbies, hallways and other
common and public areas of the building.
(g) Real estate taxes levied or assessed against the building,
improvements and the land.
Operating expenses as defined herein shall be accounted for by Landlord
using generally accepted accounting principles and methods consistently
applied.
Taxes for the Base Lease Year shall be the general real estate taxes,
special assessments and any other taxes that may be imposed in lieu of or
partially in lieu of general real estate taxes, payable in the base year
of this Lease. Taxes for subsequent calendar years shall be deemed to be
the taxes payable in the respective calendar year, even though the levy
or assessment thereof may be for a different year, and shall include
general real estate taxes, special assessments, and any other taxes that
may be imposed in lieu of or partially in lieu of general real estate
taxes.
Operating expenses shall not include capital expenditures for which the
Landlord is reimbursed or indemnified (either by an insurer, condemnor,
tenant or otherwise); expenses incurred in leasing or procuring new
tenants (including, without limitation, lease commissions, advertising
expenses and expenses of renovating space for new tenants); interest or
amortization payments on any mortgage or mortgages, and rental under any
ground or underlying lease or leases; wages, salaries or other
compensation paid to any executive employees above the grade of building
manager; wages, salaries or other compensation paid for clerks or
attendants in concessions or newsstands operated by the Landlord;
expenses in connection with maintaining and operating any garage operated
by the Landlord; the cost of any work or service performed for or
facilities furnished to the Tenant or other tenants at the Tenant's cost;
and any cost or expense representing an amount paid to a corporation
related to Landlord which is in excess of the amount which would be paid
in the absence of such relationship.
10. MAINTENANCE AND IMPROVEMENTS
(a) Tenant agrees to maintain the Premises in good condition, normal
wear and tear expected, and shall not allow or commit any waste
with respect to the Premises. Tenant shall repair at its expense
any damage to the Premises or building resulting from acts or
neglect of Tenant or Tenant's agents, employees, patrons or
invitees. The Premises shall not be altered, changed, nor any
additions or improvements made without prior written consent of
Landlord. Unless otherwise provided in writing, all such work
shall be done by or under the direction of Landlord at Tenant's
expense, and any alterations, physical additions, or improvements,
except movable office furniture and trade fixtures, shall become
the property of Landlord and shall be surrendered to Landlord upon
termination of this Lease; provided, however, that Tenant shall
remove all such alterations, additions and improvements if
Landlord so requests.
(b) Landlord shall perform all maintenance and make all repairs and
replacements to the structural portions of the Premises and to
the parking facilities and other common areas as designated by
Landlord.
11. SERVICES. The Landlord shall furnish to Tenant the following
services, utilities, supplies, and facilities:
(a) Access to the Premises 24 hours a day, seven days a week.
(b) Subject to availability from public utility services, heat,
ventilation and air-conditioning from 6:00 a.m. to 7:00 p.m.,
each business day and on Saturdays from 8:00 a.m. to 5:00 p.m.
and air conditioning in Tenant's computer area, as shown on
Exhibit "A" highlighted in yellow and referred to as Computer
Room, twenty-four (24) hours per day, seven (7) days per week.
Any additional HVAC usage by Tenant shall be considered overtime
usage and Tenant will be billed accordingly for such usage.
(c) Cleaning and janitorial service, including removal of refuse and
rubbish and furnishing washroom supplies as deemed necessary by
Landlord.
(d) Electricity for lighting and for operation of the Tenant's
Premises.
(e) Provisions, installation and replacement of all necessary light
bulbs, tubes and ballasts.
(f) Maintenance of the driveways and parking facilities and
other common area serving the Premises.
(g) Pest extermination and control.
(h) Use, as a paying customer, of the building's cafeteria as long as
Landlord, at Landlord's option, makes available or operates same.
12. CASUALTY. In the event any portion of the Premises, the
common areas, or the building of which the Premises are a part are
damaged by fire or other casualty, Landlord may, at Landlord's option,
elect to repair and restore, and Landlord shall perform such acts
within a reasonable period of time. In the event Landlord elects not
to repair or restore, then Landlord shall, within ninety (90) days
following such casualty, notify Tenant of its election not to repair
or restore, and this Lease shall thereby be canceled and terminated
and Tenant shall have no further responsibility for rental owed
hereunder from and after the date of the casualty.
13. INSURANCE.
(a) From the date Tenant first enters upon the Premises for any purpose
and thereafter throughout the Term of this Lease, Tenant shall
obtain and keep in force, at Tenant's expense, insurance for the
full insurable value of Tenant's trade fixtures, furnishings,
equipment and all other items of personalty of Tenant located on or
within the Premises. Tenant agrees and recognizes that Landlord
has no obligation hereunder or otherwise to insure any personal
property or other contents within the Premises, and that such
insurance must be procured and kept in force by Tenant at Tenant's
expense. Tenant will keep in force at Tenant's expense from the
date Tenant first enters upon the Premises for any purpose and
thereafter, so long as this Lease remains in effect, public
liability insurance with respect to the Premises, the land and the
building ( including parking and the sidewalk), in form
satisfactory to Landlord, in companies reasonably approved by
Landlord, insuring Landlord and Tenant as named insured and having
minimum limits of $1,000,000.00 on account of bodily injuries to or
death of one person, and $1,000,000.00 on account of bodily
injuries to or death of more than one person as a result of any one
accident or disaster and $1,000,000.00 property damage. Tenant
will deposit a photocopy of the policy or policies of such
insurance or certificates thereof with Landlord prior to Tenant's
entering upon the Premises for any purpose. Each policy or
certificate of insurance shall include assumed contract coverage
and shall be endorsed to provide that the same may not be canceled
or modified except upon not less than the (10) day's prior written
notice by the insurer to Landlord and to any mortgagee or trustee
under deed of trust named as an insured. If Tenant does not comply
with this Section, Landlord may, at its option , cause insurance to
be issued. In such event, Tenant agrees to pay the premiums for
such insurance promptly upon Landlord's demand.
(b) Landlord will carry fire and extended coverage insurance, insuring
the building in such amounts that Landlord reasonably deems
necessary. Landlord shall also carry public liability insurance
with respect to the building and the sidewalks and parking areas
with policy limits in an amount that Landlord reasonably deems
necessary.
14. CONDEMNATION. If at any time during the term, the whole of the
building of which the Premises are a part, or the Premises, be taken
under any statute or by right of eminent domain, then this Lease shall
terminate and the Landlord shall be entitled to all damages awarded as
a result of the condemnation. Tenant shall be permitted to remove
such of its trade fixtures and equipment as Tenant has installed in
the Premises and Tenant has no further responsibility for the rent.
15. SIGNS. Tenant shall be permitted to maintain Tenant's
existing monument type sign in its present location and size.
16. DEFAULT. If ( i ) the Tenant shall fail to pay any rental or
other sum of money due hereunder within ten (10) days after its due
date, or (ii) if the Tenant shall default in the performance of any of
its other obligations and if such default shall continue for thirty
(30) days after notice thereof is received or refused by Tenant from
Landlord (except that if the Tenant cannot cure such default within
said thirty (30) days period, this period shall be extended for a
reasonable additional time, provided that the Tenant commences to cure
such default within said thirty (30) days and proceeds with due
diligence thereafter to effect such cure), or (ii) if the Tenant shall
file a petition in bankruptcy court or be adjudicated bankrupt or
insolvent according to law, or shall make an assignment for the
benefit of creditors, then the Landlord may, in addition to all other
remedies available to Landlord at equity or law, accelerate all rental
hereunder, lawfully enter the Premises and repossess the same as the
former estate of the Landlord and expel the Tenant and those claiming
under the Tenant without being deemed guilty of any manner of trespass
and without prejudice to any other remedies which the Landlord may
have. Upon entry as aforesaid, Landlord may, in addition to any other
remedies available to Landlord, either terminate this Lease Agreement
or it may from time to time without terminating this Lease Agreement,
make such alterations and repairs as may be necessary in order to
relet the Premises, and relet the Premises for such term and at such
rentals and upon such other terms and conditions as the Landlord may
deem advisable. In the event of such reletting, all rentals received
by Landlord shall be applied, first, to the payment of any cost and
expenses of such reletting, including to the expense of alterations
and repairs; second, to the payment of any indebtedness other than
rental due hereunder from the Tenant to the Landlord; third, to the
payment of rental due and unpaid hereunder, and the residue, if any,
shall be held by the Landlord and applied in payment of future rental
due and unpaid hereunder. If such reletting shall yield rentals
insufficient for any month to pay the rental due by the Tenant
hereunder for that month, the Tenant shall be liable to the Landlord
for the deficiency and the same shall be paid monthly. No such re-
entry or taking possession of the Premises by the Landlord shall be
construed as an election or terminate this Lease unless a written
notice of such intention be given by the Landlord to the Tenant at the
time of such re-entry; but, notwithstanding any such re-entry and re-
letting without termination, the Landlord may at any time thereafter
elect to terminate this Lease for such previous breach. In the event
of any termination of Landlord, whether before or after re-entry,
Landlord may recover from the Tenant damages incurred by reason of
such breach, including the cost of recovering the Premises and all
rental owed for the remainder of the term. If the Landlord defaults
in performance or observance of any provision of this Lease, the
Tenant shall give the Landlord notice specifying in what manner the
Landlord has defaulted and, except as otherwise stipulated in this
Lease, if such default shall not be cured by the Landlord within
thirty (30) days after the delivery of such notice (except that if the
Landlord cannot cure such default within said thirty (30) day period,
this Period shall be extended for a reasonable additional time,
provided that the Landlord commences to cure such default within the
thirty (30) day period and proceeds diligently thereafter to effect
such cure) the Tenant shall have such remedies to which it may be
entitled under this Lease and under law or equity.
17. HOLDOVER. If the Tenant remains in the Premises beyond
expiration of the term of this Lease, or any extension or renewal
thereof, such holding over in itself shall not constitute a renewal or
extension of this Lease, but in such event, a tenancy from month to
month at 150% of the then current total monthly rent being paid by
Tenant.
18. ASSIGNMENT AND SUBLETTING. The Tenant may not assign this
lease or sublet all or any part of the Premises without the prior
written consent of Landlord; provided, however, that no such
assignment or sublease shall release Tenant from its obligations or
liabilities hereunder.
19. QUIET ENJOYMENT. The Tenant, on paying the rent and
performing the covenants of this Lease on its part to be performed,
may peaceably and quietly have, hold and enjoy the Premises for the
term of this Lease.
20. SUBORDINATION. This Lease shall be subordinate to all matters of
public record from time to time and mortgages on the property on which
the Premises is located, whether now existing or hereafter entered
into by Landlord. Upon request by Landlord, Tenant shall execute all
estoppel, attornment, subordination and similar instruments if this
Lease or any part of the land or building are to be assigned or
conveyed.
21. RULES AND REGULATIONS. The Tenant shall abide by and observe
the reasonable rules and regulations as promulgated by the Landlord
from time to time for the operation, safety, security, maintenance and
otherwise for the building in which the Premises are located.
22. COUNTERPARTS. This Lease is executed in several
counterparts, each of which shall be deemed to be an original, and all
counterparts shall constitute one and the same instrument. This Lease
shall not be binding and in effect until a counterpart has been
executed by the duly authorized representative of the Landlord and the
Tenant and delivered by each party hereto to the other.
23. MEMORANDUM OF LEASE. Neither this Lease, nor a memorandum or
short form thereof, shall be recorded without Landlord's prior written
consent.
24. TRANSFER BY LANDLORD. In the event of any sale, assignment,
transfer or conveyance of the Building in which the Premises are
located and the Lease by Landlord, Landlord shall be relieved of its
obligations under this Lease, both those arising before and after such
transfer, provided such transferee assumes all such obligations.
25. APPLICABLE LAW. This Lease shall be governed in accordance
with the laws of the State of Alabama.
26. BINDING EFFECT. This lease shall inure to the benefit of and
will be binding upon Landlord's successors and assigns. This Lease
will inure to the benefit of and will be binding upon the Tenant's
successors and assigns so long as the succession or assignment is
permitted by the terms of this Lease.
27. ENTIRE AGREEMENT. This Lease contains the entire agreement of
the parties and may not be modified except by an instrument in writing
which is signed by both parties.
28. NOTICES. Any notices, demand or request under this Lease
shall be in writing, shall be addressed as hereinafter provided and
delivered by hand or by registered or certified mail (return receipt
requested) or delivered by private express mail service and shall be
deemed effective upon receipt or refusal. Any notice, demand or
request by Landlord to Ruby Tuesday, Inc., shall be addressed to Ruby
Tuesday, Inc., at its address stated in the preamble hereto, Attention
Xxxx Xxxxx, until otherwise directed by Ruby Tuesday, Inc. Any notice,
demand or request by Ruby Tuesday, Inc. to Landlord shall be addressed
to Xx. Xxxx X. Hoppper, Riverfront Capital Business Trust, at its
address stated in the preamble hereto.
29. IDEMNIFICATION. Except to the extent that such event is
covered by a policy of insurance required to be kept hereunder,
Landlord shall indemnify, defend and hold harmless Tenant, its
directors, officers, employees, contractors, successors and assign
from any loss, damages, and cost of defense ( including reasonable
attorneys' fees and court costs) arising our of (i) property damage or
bodily injury including death to any person, occurring on or about the
land or building, to the extent caused by the negligence or
intentional misconduct of Landlord, its agents or employees, and (ii)
any breach of any provisions of this Lease by Landlord.
Except to the extent that such event is covered by a policy of insurance
required to be kept hereunder, Tenant shall idemnify, defend and hold
harmless Landlord, its directors, officers, employees, contractors,
successors and assigns from any loss, damages, and cost of defense
(including reasonable attorneys' fees and court cost) arising our of (i)
property damage or bodily injury, including death to any person,
occurring on or about the land or building, to the extent caused by the
negligence or intentional misconduct of Tenant, its agents or employees,
and/or (ii) any breach of any provision of this lease by Tenant.
Except as set forth in this section, in no event shall either party be
liable to the other for any indirect, consequential or incidental
damages, including loss of goodwill or loss of profits.
30. AGENCY DISCLOSURE. Landlord and Tenant warrant and represent
to one another that neither has dealt with any other real estate brokers
except for Metcalfe & Company, Inc. regarding this Lease nor has created
any obligations that might give rise to a claim for commissions made by
any other broker.
IN WITNESS WHEREOF, the parties have executed this Lease effective on the
date first above written, but executed on the dates appearing together
with their signatures below.
LANDLORD
Riverfront Capital Business Trust
ATTEST:
By: /s/ J. Xxxxxxx Xxxxxx
By: X.X. Xxxxxxx
As Its: Trustee
Date: 9/29/97
TENANT
Ruby Tuesday, Inc.
ATTEST:
By: /s/ J. Xxxxxxx Xxxxxxxxxx
BY: J. Xxxxxxx Xxxxxxxxxxx
Assistant Secretary
As Its: C.F.O.
Date: 9/26/97
STATE OF ALABAMA
COUNTY OF MOBILE
I, Xxxxxxxx X. Xxxxxx a Notary Public in and for said County in said
State, hereby certify that Xxxxxx X. Xxxxxxx, whose name as a Trustee of
Riverfront Capital Business Trust, a Pennsylvania business trust, is
signed to the forgoing instrument and who is known to me, acknowledged
before me on this date, that he , being informed of the contents of said
instrument and as such Trustee and with full authority, executed the
same voluntarily for and as the act of said trust.
Given under my hand and official seal the 29th day of September, 1997.
Xxxxxxxx X. Xxxxxx
NOTARY PUBLIC
My commission expires:
STATE OF ALABAMA
COUNTY OF MOBILE
I, Xxx X. Xxxxx a Notary Public in and for said County in said State,
hereby certify that J. Xxxxxxx Xxxxxxxxxx, whose name as Chief Financial
Officer of Ruby Tuesday, Inc. a Georgia Corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on
this date, that he being informed of the contents of said instrument and
as such officer and with full authority, executed the same voluntarily
for and as the act of said corporation.
Given under my hand and official seal this the 26th day of September,
1997.
/s/ Xxx X. Xxxxx
NOTARY PUBIC
My commission expires:
May 4, 1998
