FLORIDA RETAIL LEASE AGREEMENT
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THIS FLORIDA RETAIL LEASE AGREEMENT (the "Lease"), is made and entered into
on the ______ day of ___________________, 2002, between E.D.I. II INVESTMENTS,
INC., A FLORIDA CORPORATION ("Landlord") whose offices are located at 0000 Xxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 and FAMILY STEAK HOUSES OF FLORIDA,
INC., A FLORIDA CORPORATION, D/B/A RYAN'S GRILL, BUFFET & BAKERY ("Tenant"),
whose offices are located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, XX 00000.
SECTION 1 - DEFINITIONS.
1.1 AFFILIATE. "Affiliate" means an officer or director, with regard to a
Tenant, which is a corporation, any entity wholly owned by, or under common
control of Tenant, and any person or entity having a relationship described in
Internal Revenue Code Section 267(b) (including any ownership attribution
provisions contained in other subsections of Section 267, and the regulations
promulgated thereunder), to the Tenant.
1.2 APPLICABLE PERCENTAGE. "Applicable Percentage" means Five and no/100
percent (5.0%).
1.3 BASE RENT. "Base Rent" means the sums set forth or determined below,
subject to change as set forth in Section 1.11 hereinbelow, payable in advance
monthly installments as follows:
LEASE YEARS ANNUAL BASE RENT MONTHLY BASE RENT
Lease Year No. 1 to Lease Year No. 5 $227,325.00 $18,943.75
Lease Year No. 6 to Lease Year No. 10 $250,057.50 $20,838.12
Lease Year No. 11 to Lease Year No. 15 $275,063.25 $22,921.93
The Base Rent due for the first month of the Lease Term (hereafter
defined), in the amount of TWENTY THOUSAND TWO HUNDRED SIXTY-NINE AND 81/100
DOLLARS ($20,269.81), including applicable state sales tax, shall be due and
payable and shall be paid to Landlord by Tenant on the Commencement Date. The
payment of monthly installments of Base Rent shall commence on the Commencement
Date.
1.4 BROKER. Tenant represents to Landlord and Landlord represents to Tenant
that the only Brokers involved in this transaction are Diab Realty, Inc. and the
STZ Company ("Brokers"). Said Brokers shall be due a commission pursuant to a
separate agreement by and between Diab
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Realty, Inc. and Landlord and a Co-Brokerage Agreement between Diab Realty, Inc.
and STZ Company.
1.5 BUILDING GRADE. "Building Grade" means the type, brand and/or quality
of mate rials Landlord designates from time to time to be the minimum quality to
be used on the Property or the exclusive type, grade or quality of material to
be used on the Property.
1.6 COMMENCEMENT DATE. "Commencement Date" means one hundred fifty days
(150) after the date Landlord shall deliver a building pad as specified in
Exhibit "J" attached hereto for the construction of the Tenant Improvements, as
defined hereinafter, on the Premises, or the opening for business, whichever
shall occur first. At any time after the Commencement Date, upon demand by
Landlord, Tenant shall execute and deliver to Landlord a written certificate in
the form provided by Landlord affirming the date of the Commencement Date.
1.7 COMMON AREAS. "Common Areas" means those areas devoted to the common
use or benefit of tenants generally and/or the public (except where the context
shall indicate to the contrary), including mechanical, electrical and telephone
installations and wiring, if any, and also includes the "Exterior Common Areas"
described in Subsection 1.9.
1.8 ESTIMATED MONTHLY OPERATING EXPENSES. "Estimated Monthly Operating
Expenses" for the first Lease Year of the Lease Term, or until it shall be
adjusted as provided in Subsection 19.2 hereof, means the sum of FOUR THOUSAND
FIFTY-NINE AND 37/100 DOLLARS ($4,059.37) per month, based upon estimated
initial year Operating Expenses of FOUR AND 50/100 ($4.50) per square foot of
Net Rentable Area per annum.
1.9 EXTERIOR COMMON AREAS. "Exterior Common Areas" means the portion of
the Property which is not located within the Premises or other improved
structures and which is provided or maintained for the common use and benefit of
Landlord and other tenants of the Property generally and the employees, invitees
and licensees of Landlord and such tenants; including, without limitation, the
roof, exterior walls (but not glass, plate glass or doors), and foundations of
the building or buildings containing the Premises and all other premises used,
rented, or held for rent by Landlord on the Property, all parking areas, drives,
sidewalks and landscaped areas, and retention ponds.
1.10 GROSS RECEIPTS FLOOR. "Gross Receipts Floor" for any Lease Year during
the Lease Term shall be Three Million Five Hundred Thousand and no/100 Dollars
($3,500,000.00).
1.11 LANDLORD IMPROVEMENTS. "Landlord Improvements" means those
improvements to the Property that the Landlord shall provide pursuant to the
site plan prepared by Xxxxx and Xxxxx Engineering, Inc. as in Preliminary Site
Plan attached hereto as Exhibit "B" . Landlord Improvements shall provide for
the construction of a compacted building pad (the "Pad") as specified in Exhibit
"J"
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attached hereto for Tenant to build said Premises with site work and parking for
the entire Property, including the retention area required by the City of
Orlando for the development of said Property. Landlord Improvements shall
include the construction of no less than one hundred eighty (180) parking
spaces, and shall be in compliance with parking requirements of City of Orlando.
All parking spaces shall be available to all tenants on the Property for their
non-exclusive use. Landlord will provide those utilities identified on the
attached Exhibit "I" to within five feet (5') of the Pad. Tenant shall pay all
hookup fees, impact fees, and all deposits pertaining to Tenant Improvements.
Tenant shall construct the Premises, together with Tenant's restaurant
operation, pursuant to the terms of the Work Schedule attached hereto as Exhibit
"D" and a Development Agreement of even date between Landlord and Tenant ( the
"Development Agreement") a true and correct copy of which is attached hereto as
Exhibit "C". Pursuant to the terms and conditions of said Development Agreement
and the Work Schedule, Landlord shall provide Seven Hundred Fifty Thousand and
no/100 Dollars ($750,000.00) as Tenant Improvement Allowance for the
construction of the Tenant's Improvements; provided, further, in the event
Tenant shall request additional investment on the part of the Landlord for
completion of the Tenant Improvements, Landlord shall provide an additional sum
not to exceed $400,000.00 solely for the construction of approved Tenant
Improvements (the "Supplemental Tenant Improvement Allowance"). Landlord shall
have forty-five (45) days from the date Tenant delivers a written request for
the Supplemental Tenant Improvement Allowance, to fund said Supplemental Tenant
Improvement Allowance. In the event Tenant shall request the advancement of sums
from the Landlord under the Supplemental Tenant Improvement Allowance, said
sum(s) shall be repaid under the terms of this lease, as part of the "Base
Rent", and shall increase the "Base Rent" pursuant to the following formula:
upon the "Commencement Date" the sum funded by the Landlord under the
Supplemental Tenant Improvement Allowance shall be determined and multiplied by
14%. Said product shall then be added to the "Annual Base Rent" described in
Section 1.3 hereinabove and shall be paid monthly in advance, as part of and in
addition to the "Monthly Base Rent" described in Section 1.3 hereinabove.
Thereafter the monthly rental payment shall equal the sums of the Annual Base
Rent (Section 1.3) plus the Supplemental Tenant Improvement Allowance divided
(/) by twelve (12). Landlord shall not be required to pay for any equipments,
systems, fixtures, or property, or for any improvements or alterations which
either (i) do not conform to the plans and specifications approved in accordance
with the terms of the Work Schedule, or (ii) in the aggregate, exceed the sum of
Seven Hundred Fifty Thousand and 00/100 Dollars ($750,000.00) as provided in the
Work Schedule. Tenant shall be required to, and shall, at its sole costs and
expense, install all equipments, partitions, systems, fixtures, and property,
and make any and all improvements or alterations which shall be necessary for
completion of the Building Standard Improvements and for Tenant's use of the
Premises for the Permitted Use, which shall either (i) not be included in the
approved plans and specifications, or (ii) when added to all other sums incurred
or expended by Landlord, exceed the sum of Seven Hundred Fifty thousand and
00/100 Dollars ($750,000.00). Prior to the delivery of the Building Pad to
Tenant, Landlord shall furnish to Tenant a copy of a loan commitment letter from
a institutional lender evidencing a loan in an amount equal to the Tenant
Improvement Allowance and the Supplemental Tenant Improvement Allowance.
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1.12 LEASE TERM. "Lease Term" means a term commencing on the Commencement
Date and expiring at 11:59 P.M. on the last day of the Fifteenth (15th) Lease
Year.
1.13 LEASE YEAR. "Lease Year" means the period beginning on the
Commencement Date and expiring at 11:59 P.M. on the last day of the calendar
year which shall contain the Commencement Date, with regard to the first Lease
Year. Any subsequent Lease Year shall mean the period of twelve (12) consecutive
calendar months commencing immediately upon the expiration of the preceding
Lease Year.
1.14 MINIMUM COVERAGE. "Minimum Coverage" means the minimum required
coverage for insurance against bodily injury and property damage, which, for
purposes hereof, shall be no less than TWO MILLION DOLLARS ($2,000,000) per
person, TWO MILLION DOLLARS ($2,000,000) per occurrence, with umbrella coverage,
per occurrence in the amount of TEN MILLION DOLLARS ($10,000,000.00) and ONE
MILLION DOLLARS ($1,000,000) for property damage.
1.15 NET RENTABLE AREA. "Net Rentable Area" of the Premises means the gross
area measured from the unfinished outside surface of the outer exterior walls of
the Premises, to the midpoint of any walls separating portions of the Premises
from those of adjacent tenants, and to the unfinished Common Area side of walls
separating the Premises from Common Areas. Net Rentable Area of the Property
means the other gross area within the outside surface of the outer exterior
walls of all improvements now or hereafter constructed on the Property,
excluding Common Areas. Upon completion of construction of the Premises, the Net
Rentable Area of the Premises shall be determined by Landlord's architect in
accordance with BOMA standards, and the result of such measurement shall be
certified by Landlord's architect in writing to Landlord. Notwithstanding the
foregoing, Tenant shall construct the Premises such that the Net Rentable Area
shall not be less than ten thousand eight hundred twenty-five square feet
(10,825 sq. ft.). In the event the Premises contains more than 10,825 square
feet, the Base Rent and Tenant's Operating Expense Percentage shall be increased
accordingly (i.e., the Base Rent as set forth in section 1.3 is based upon a Net
Rentable Area of 10,825 square feet. By way of illustration only, if the Net
Rentable Area is determined to be 10,925 square feet, the annual Base Rent for
Lease Year No. 1 to Lease Year No. 5 would be increased by $2,100.00 ($21 per
square foot x 100 additional square feet)). Notwithstanding the foregoing,
however, Base Rent shall not increase as a result of added square feet within
the Premises to accommodate the subtenant under the Timeshare Lease, a copy of
which is attached as Exhibit "E." In the event Tenant's architect determines
that the Premises contains less than 10,825 square feet, there shall be no
reduction to Base Rent, and the Net Rentable Area of the Premises for the
purposes of determining Tenant's Operating Expense Percentage shall be deemed to
be 10,825 square feet.
1.16 OPERATING EXPENSE PERCENTAGE. "Operating Expense Percentage" for
purposes of computing Tenant's proportionate share of the operating expenses for
the Property means the
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percentage, rounded to the nearest 1/100th of a percent (0.01%), and derived by
dividing the Net Rentable Area of the Premises by the Net Rentable Area
buildable upon the Property. The Operating Expenses Percentage of the Premises
is currently unknown as it is subject to increases of the leasable area of the
Premises and to increases or decreases in the gross leasable area of the
Property.
1.17 PERMITTED USE. "Permitted Use" shall mean the initial use of the
Premises only as a Ryan's Grill, Buffet and Bakery, serving breakfast, lunch and
dinner, and subject to the terms of of Section 4.1 below, as a Tourist
Information Attraction Ticket and any other use permitted under the Timeshare
Lease, a copy of which is attached hereby as Exhibit "E" and {and} for no other
purposes whatsoever. If the Tenant, after having commenced operations as a
Ryan's Grill, Buffet and Bakery shall thereafter determine that it shall be in
its best interest to change the name or concept of the Restaurant, the Premises
may then be used as a sit-down family restaurant or as a dinner house provided
that the new Permitted Use shall not be the same as any business activity then
conducted on the Property by the Landlord or any other tenant of the Property.
The type of restaurant which the Tenant may operate in the Premises shall not be
a fast food restaurant. Notwithstanding the foregoing to the contrary, Tenant
shall have the right to discontinue breakfast service in Tenant's sole
discretion.
1.18 PREMISES. "Premises" means a building pad on the Property to be leased
to Tenant, together with a free-standing building to be constructed thereon. The
Premises are depicted and outlined on the site plan attached as Exhibit "B". The
Premises are estimated to contain approximately Ten Thousand Eight Hundred
Twenty-Five (10,825) square feet of "Net Rentable Area" (as defined below).
1.19 PROPERTY. "Property" means the real property located at 0000
Xxxxxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000, and more particularly described on the
attached Exhibit "A", together with all site work improvements to be constructed
by Landlord as Landlord's Improvements.
1.20 RENEWAL TERMS. "Renewal Terms" means two (2) successive option terms
of ten (10) years each, available to Tenant in accordance with the provisions of
Section 33 hereof.
1.21 REQUIRED BUSINESS HOURS. "Required Business Hours" means the hours
between 8:00 A.M. and 10:00 P.M., Monday - Sunday.
1.22 SECURITY DEPOSIT. [INTENTIONALLY OMITTED]
1.23 TENANT IMPROVEMENTS. "Tenant Improvements" means those improvements to
the Premises and to the Property, sometimes referred as Building Standard
Improvements, which the Tenant agrees to construct on behalf of the Landlord in
accordance with the Development Agreement and Work Schedule attached hereto as
Exhibits "C" and "D", respectively, which "Tenant Improvements" shall be of a
consistent nature and character as Tenant has constructed on sites
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similar to the Property and of a character consistent with Tenant's previously
constructed "Ryan's Grill, Buffet & Bakery" restaurant facilities constructed in
the State of Florida.
SECTION 2 - LEASE GRANT.
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Subject to and upon the terms herein set forth, Landlord leases to
Tenant and Tenant leases from Landlord the Premises, together with the right for
Tenant and Tenant's employees, customers and invitees to use the sidewalks,
common driveways for ingress and egress and parking areas of the Property.
SECTION 3 - LEASE TERM.
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3.1 LENGTH OF TERM. This Lease shall continue in force during a period
beginning on the Commencement Date and continuing until the expiration of the
Lease Term, unless this Lease is sooner terminated or extended to a later date
under any other term or provision of this Lease. If Landlord shall give
possession of the Premises to the Tenant prior to the Commencement Date, such
possession by Tenant shall be subject to all covenants, agreements, terms, and
conditions of this Lease, other than the obligation to pay Base Rent.
3.2 ACCEPTANCE OF POSSESSION. Tenant agrees to accept possession of the
Premises at the Commencement Date.
3.3 DELIVERY OF PREMISES. Tenant shall use diligent effort to obtain all
necessary governmental permits for the construction of the Tenant Improvements
within one hundred twenty (120) days of the date of this Lease (the"Permit
Period"). In the event all necessary permits for the Tenant Improvements have
not been obtained on or before the expiration of the Permit Period, then Tenant,
upon written request, shall be granted, up to three (3), thirty (30) day
extensions of the Permit Period. Tenant shall promptly notify Landlord when all
permits have been obtained by Tenant. Thereafter, Landlord shall construct and
deliver the Landlord Improvements at Landlord's expense. Tenant shall accept the
Landlord Improvements in writing when Landlord has constructed the building pad
as specified in Exhibit "J" and the other Landlord Improvements are
substantially completed in the reasonable opinion of Landlord. If there are any
unfinished items to be completed (except for the building pad) that do not
interfere with the construction of the Tenant Improvements, then Tenant shall
accept the Premises. Landlord agrees that any unfinished or punch list items
shall be completed prior to the Commencement Date. Tenant shall thereafter
construct the Tenant Improvements pursuant to the terms of the Development
Agreement and Work Schedule attached hereto as Exhibits "C" and "D",
respectively. Landlord shall pay the sum of Seven Hundred Fifty Thousand and
no/100 Dollars ($750,000.00) representing Landlord's portion of the costs of the
Tenant's Improvements. Thus, Tenant shall be responsible for the completion of
the Tenant Improvements, and unless it shall be caused solely by the Landlord's
default under the Development Agreement, Landlord shall have no liability for
the failure or inability of the Premises to be ready for
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use by Tenant at any particular time. If Landlord shall default under the
Development Agreement, Tenant shall have the right to pursue any and all
remedies provided therein, but shall not have the right to cancel or terminate
this Lease, nor to pursue any claims for damages for or on account of any delay
in delivery of the Premise under this Lease, except that the one hundred fifty
(150) day period set forth in Section 1.6 for determining the Commencement Date
shall be extended one day for each day of delay in completion of the Landlord
Improvements attributable solely to Landlord's default under the Development
Agreement.
SECTION 4 - USE.
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4.1 USE OF PREMISES. The Premises shall be used for the Permitted Use set
forth in Subsection 1.17 hereof, and for no other purpose whatsoever. Without
limiting the foregoing restriction, Tenant, unless specifically and explicitly
authorized pursuant to the terms of Subsection 1.17, shall not sell or solicit
the sale of, lease or solicit the lease of, nor permit any other person to sell
or solicit the sale of, or lease or solicit the lease of, in, about, or from the
Premises, any attraction tickets, time share resort units, recreational vehicle
or campground lots, condominium or resort units or facilities, or similar
products in, about, or from the Premises provided, however, that the Landlord,
and those persons authorized by the Landlord, may engage in such activities in
the Premises pursuant to the terms of a certain Timeshare Sublease of even date
herewith entered into between the Landlord as Sub-Tenant and the Tenant as
Sub-Landlord, a true and correct copy of which is attached hereto as Exhibit "E"
(the "Timeshare Lease"). Nor shall Tenant sell any T-Shirts, sweatshirts,
nightshirts, jerseys, or beach cover-ups, any souvenirs or gift items relating
or otherwise pertaining to Florida, Orlando, Florida, the Central Florida area,
Xxxx Disney World, Epcot, Universal Studios, or any other tourist attraction
located in the Central Florida area, or any characters, logos, or graphic images
depicting such location, or attraction, or any persons, characters, buildings,
or structures commonly associated with such geographic area, or attraction.
Without the express prior written consent of the Landlord, the Tenant shall not
display any merchandise or showcases outside of the Premises, nor maintain any
other obstruction outside of the Premises. The Tenant shall not use or permit
the use of the Exterior Common Areas for gatherings, solicitations, or
demonstrations, regardless of whether such solicitation or demonstration shall
be for profit or nonprofit purposes.
4.2 LAWFUL USE. The Premises shall not be used for any illegal purposes or
in violation of any regulation of any governmental body, or in any manner to
create any nuisance or trespass, or to make void or voidable any insurance or
increase the rate of insurance on the Premises or the Property. Tenant shall
comply with all applicable laws, ordinances, rules and regulations of any
governmental entity, agency or authority having jurisdiction of the Premises or
Tenant's use of the Premises, regardless of when they become effective,
including, without limitation, the Americans with Disabilities Act, all
provisions pertaining to air and water quality, Hazardous Materials (as
hereinafter defined), waste disposal, air emissions, and other environmental
matters, and all recorded covenants, conditions, and restrictions applicable to
the Property. For purposes hereof, Hazardous Materials shall include, but not be
limited to, substances defined as "Hazardous Substances",
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"Hazardous Materials", or "Toxic Substances": in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 USC Section
9601, et seq.; The Hazardous Materials Transportation Act, 49 USC Section 1801,
et seq.; The Resource Conservation and Recovery Act, 42 USC Section 6901, et
seq.; any substance regulated under any similar Florida statutory or regulatory
provision, and in the regulations adopted and publications promulgated pursuant
to said laws. If Tenant receives notice of any claim of violation of any law,
ordinance, rule, or regulation applicable to the Premises or Tenant's use
thereof, Tenant shall immediately notify Landlord thereof. Tenant shall not do
or permit anything to be done in or about the Premises, which will obstruct or
interfere with the rights of other persons in the Property. The Tenant shall
keep the Premises and the adjoining sidewalk neat and clean at all times, and
shall store all trash, garbage, rubbish and other debris generated by the
operation of the Premises within the container to be provided by the Tenant for
such purpose. The Tenant shall not burn any trash of any kind in or about the
Premises, nor shall the Tenant permit rubbish, refuse, or garbage to accumulate,
nor permit any fire or health hazard to exist on or about the Premises. Tenant
shall comply with the Building Rules adopted and amended by the Landlord from
time to time and will cause all of its agents, employees, invitees and guests to
do so. All changes to such rules will be furnished by Landlord to Tenant in
writing. A copy of the current Building Rules is attached hereto as Exhibit "H".
4.3 BUSINESS OPERATION. The Tenant shall, during the term of this Lease,
continuously and diligently use the Premises for the Permitted Use, carrying on
therein the Tenant's business. The Tenant shall maintain on the Premises a
sufficient supply of goods and equipment and shall employ such personnel as may
be necessary to assure the successful operation of the Tenant's business. The
Tenant shall keep the Premises open and available for business activity therein
during such periods and hours as are customary in the county where the Premises
are located for businesses of a like character. Without limiting the foregoing,
except when prevented by strikes, fire, casualty, or other causes beyond the
Tenant's reasonable control, the Tenant shall be required in any event to be
open during Required Business Hours, as specified in Subsection 1.21.
4.4 TENANT'S EXCLUSIVE. Landlord agrees that while Tenant shall not be in
default under the terms hereof beyond any notice and cure period, and while
Tenant shall be operating as a Ryan's Grill, Buffet and Bakery, the Landlord
shall neither lease for operation by another, nor operate itself on the
Property, those uses set forth on Exhibit "G" ("Prohibited Uses"). This
provision, however, shall not preclude Landlord from leasing any space within
the Property to other restaurants, provided the same are not listed on Exhibit
"G". Nor shall this provision preclude the Landlord from permitting other
tenants within the Property to sell or to include in their menus products sold
by the Tenant. Nothing herein shall prohibit Landlord from leasing space to any
such operation, and that operation's selling such products or services shall not
be deemed a violation of this provision. Furthermore, in the event Landlord
shall cause to be constructed a free-standing restaurant building on that
portion of the Property identified on the Site Plan, Exhibit "B", as Phase II,
Landlord agrees that said building shall not exceed a leasable area of six
thousand five hundred (6,500) square feet unless Landlord provides additional
parking in the Property. If the Premises shall cease to be used as
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Ryan's Grill, Buffet, and Bakery at any time, then the provisions and
restrictions imposed by this Subsection 4.4 will automatically terminate,
without notice, as if it were never made a part of this Lease.
SECTION 5 - RENT
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5.1 OBLIGATION TO PAY. Tenant shall pay to Landlord without any set-off or
deduction whatsoever, the Base Rent and all other money as shall become due to
the Landlord from time to time hereunder, as additional rent, all of which are
sometimes herein collectively called "rent".
5.2 TIME OF PAYMENT. Except for any sums of advance rent which shall be
due and payable at the time or times specified in Subsection 1.3 hereof, the
Base Rent for each month, together with any adjustments thereto as are set forth
elsewhere herein, shall be due and payable on the first day of each calendar
month during the Lease Term and during any extensions or renewals thereof.
Tenant agrees to pay all such sums in advance, and without demand.
5.3 PLACE OF PAYMENT. Tenant shall pay the Base Rent and all other rent to
Landlord at Landlord's address provided on the first page hereof (or such other
address as may be designated by Landlord in writing from time to time).
5.4 PRORATION FOR PARTIAL MONTH. If the term of this Lease commences on a
day other than the first day of a calendar month, then on the Commencement Date
Tenant shall pay Landlord an additional installment of rent for such month,
which additional installment shall be an amount equal to (i) the sum of one
month's Base Rent and one month's Estimated Monthly Operating Expenses,
multiplied by (ii) a fraction, the numerator of which shall be the number of
days between the Commencement Date and the last day of the said calendar month,
both inclusive, and the denominator of which shall be the total number of days
in said calendar month.
5.5 SALES OR RENTAL TAX. Tenant shall pay all sales or rental taxes levied
or assessed against all rent payments due under this Lease simultaneously with
each rent payment required, whether Base Rent or additional rent.
5.6 INFLATION RENT. The Base Rent shall adjust each five (5) lease years
by multiplying the Base Rent times (x) one hundred ten percent (110.0%). At the
end of each five (5) year period, the then Base Rent (including any adjustments
to the Base Rent from prior five (5) year lease terms) shall increase by ten
percent (10.0%) over the Base Rent (as modified) for the prior five (5) year
period. By way of example, the Base Rent for Lease Years Six (6) through Ten
(10) shall be Two Hundred Fifty Thousand Fifty-Seven and 50/100 Dollars
($250,057.50) for each Lease Year and the Base Rent for Lease Years Eleven (11)
through Fifteen (15) shall be Two Hundred Seventy-Five Thousand Sixty-Three and
25/100 Dollars ($275,063.25) for each Lease Year. The base Rent, as
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adjusted for each five (5) year cycle, shall be automatically adjusted during
the term of the Lease and any option terms and shall be payable in monthly
installments as provided in this Lease.
5.7 PERCENTAGE RENT. In addition to the payment of Base Rent and all other
sums required under the terms of this Lease, Tenant covenants and agrees to pay
Landlord as additional rent for each Lease Year for the term hereof, on the
Gross Receipts made in such Lease Year from Tenant's business or businesses
conducted in, on, at, from or arising out of the use of the Premises, the excess
of (i) the product of the Applicable Percentage, as defined in Subsection 1.2
hereof, multiplied by the excess of Gross Receipts for such Lease Year over the
"Gross Receipts Floor" less the difference between the Inflation Rent less the
Base Rent. The said excess shall be hereinafter referred to as "Percentage
Rent". For example, assume that Gross Receipts in the Sixth (6th) Lease Year are
Four Million and no/Dollars ($4,000,000.00) and the Base Annual Rent is Two
Hundred Twenty-Seven Thousand Three Hundred Twenty-Five and no/100
($227,325.00), the Percentage Rent would be calculated as follows:
Estimated Gross Receipts 6th Lease Year $4,000,000.00
Less Gross Receipts Floor 3,500,000.00
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Balance $ 500,000.00
Times (x) Applicable Percentage 0.05
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Percentage Rent Adjustment $ 25,000.00
Less Percentage Rent 6th Lease Year
Less Base Rent
($250,057.50 - $227,325.00 = $22,732.50) 22,732.50
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Percentage Rent 6th Lease Year $ 2,267.50
Such Percentage Rent, if any, shall be due and payable to Landlord,
together with applicable sales, use, or rental tax thereon as required by law,
within thirty (30) days following each Lease Year.
5.8 GROSS RECEIPTS. "Gross Receipts" means the total gross receipts from
all businesses conducted by Tenant or any other person in, on, at, or from the
Premises. Without limiting the foregoing, gross receipts shall specifically
include the total gross receipts for all goods, wares, foodstuffs, and
merchandise of all kinds sold or rented, the actual charges for all admissions
or donations, and the actual charges for all services performed by Tenant or by
any assignee, sub-tenant, licensee or concessionaire in, on, at, from, or
arising out of the use of the Premises, whether at wholesale or retail, whether
for cash or credit, or otherwise, and including the value of all consideration
other than money received for any of the foregoing, without reserve or deduction
for inability or failure to collect, including but not limited to sales,
rentals, admissions, and services: (i) where the orders therefor originate in,
on, at, from, or arising out of the use of the Premises, whether delivery or
performance is made from the Premises or from some other place, and regardless
of the
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place of bookkeeping for, payment of, or collection of any account; or (ii) made
or performed by mail, telephone, telegraph, or facsimile transmission orders
received or filled in, on, at, or from the Premises; or (iii) made or performed
by means or mechanical or other vending devices in the Premises; or (iv) which
Tenant or any assignee, sub-tenant, licensee, or concessionaire, in the normal
and customary course of its business, would credit or attribute to its
operations in, on, at, from, or arising out of the use of the Premises or any
part thereof. Any deposit accepted or retained by Tenant shall be included in
Gross Receipts. Each installment or credit sale or rental shall be treated as a
sale or rental for the full price in the month during which such sale or rental
is made, irrespective of whether or when Tenant receives payment therefor. The
sale of a gift certificate from the Premises and gift certificates sold from off
the Premises shall be included in Gross Receipts in the month in which the
certificate is redeemed or traded for food, merchandise, admission, or services
at or from the Premises. No franchise, capital stock tax, tax based upon assets
or net worth, or gross receipts tax, and no income or similar tax based on
income or profit shall be deducted from Gross Receipts.
The following shall be excluded from Gross Receipts: (i) any exchange
of inventory or merchandise between facilities of Tenant if such exchanges shall
be made solely for the convenient operation of Tenant's business, and not for
the purpose of consummating a sale made in, on, at, from, or arising out of the
use of the Premises; (ii) returns to shippers, suppliers, or manufacturers;
(iii) sales or rentals for which a cash or credit refund has been given to the
customer in the amount of such refund, for transactions otherwise included in
Gross Receipts (but not store credits or chain coupons); (iv) sales of fixtures,
machinery and equipment which are not stock in trade, inventory, or property
held for sale, trade, or rental in the ordinary course of business, after use
thereof in the conduct of Tenant's business on the Premises; (v) amounts
collected from customers and paid by Tenant to any government for any sales, use
or excise tax; (vi) insurance proceeds paid to Tenant pursuant to insurance
which Tenant maintains to compensate Tenant for damage or loss to its inventory,
stock in trade, fixtures, machinery and equipment stored in the Premises; (vii)
commissions or deposits from toy machines within the Premises; and (viii) sales
made by the Subtenant under the Timeshare Agreement. In recognition of the fact
that this Lease provides for a Percentage Rent based on Gross Receipts made by
Tenant in, on, at, from, or arising out of the use of the Premises, Tenant
agrees (to the extent that it is lawful so to agree) that neither Tenant nor any
Affiliate of Tenant, directly or indirectly, shall own, be employed by, operate,
manage, or have any interest in, any other Ryan's restaurant or any restaurant
concept similar a restaurant concept permitted under Subsection 1.17 hereof,
within two (2.0) miles radius of the Premises. If this covenant shall be
violated, Landlord (in addition to Landlord's other remedies) shall include an
amount equal to one hundred percent (100%) of the Gross Receipts of such same or
similar business in the Gross Receipts transacted in the Premises for the
purpose of computing Percentage Rent due hereunder, as though said Gross
Receipts had actually been derived from the Premises, and Tenant shall comply
with the provisions of this Section in respect of such same or similar business.
5.9 GROSS RECEIPTS STATEMENT. Tenant shall submit to Landlord on or before
the forty-fifth (45th) day following the end of each Lease Year a statement
showing the amount of Gross
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Receipts for the Lease Year. If Tenant shall have audited or reviewed financial
statements prepared by a certified public accountant for any portion of its
business, then such statement shall be furnished to Landlord. The statement
shall show in reasonable detail the amount of Gross Receipts made during such
Lease Year, and the amount of Percentage Rent due to Landlord pursuant to
Section 5.7 hereof for such Lease Year. Whether or not the Tenant shall have
audited or reviewed financial statements prepared for Tenant by an independent
certified public accountant, the statement shall be signed by the chief
financial officer of Tenant, under oath and such chief financial officer shall
affirm that the statement accurately represents the Tenant's Gross Receipts as
defined in this Lease for such Lease Year.
5.10 AUDITS. Tenant agrees to record and report all Gross Receipts in
accordance with generally accepted accounting principals, consistently applied,
and to maintain sufficient records, which accurately reflect all transactions.
Such records shall include but shall not be limited to: sales and use tax
returns and allowance details, sales journals or daily sales reports, and a
complete general ledger. Documentation of specific exclusions must be
maintained. Said records shall be preserved by Tenant for two (2) years
following the Lease Year to which such records relate. Tenant shall make
available to Landlord Tenant's business records of its Gross Receipts upon
reasonable notice. Landlord may, at its own expense, examine and audit Tenant's
records for the purpose of ascertaining the amount of such Gross Receipts during
any Lease Year. Landlord may conduct such audit at any time after Tenant shall
have furnished its statement of Gross Receipts for the Lease Year. If such audit
shall reveal that Percentage Rent shall have been underpaid, Tenant shall
immediately pay the Landlord such additional Percentage Rent as shall be
revealed to be due by the audit. If such audit shall reveal that Percentage Rent
shall have been overpaid, Tenant shall be entitled to a credit against the next
installment of Base Rent due to Landlord (or a refund if the Lease shall have
expired without renewal), equal to the excess of the overpaid Percentage Rent
over the costs to Landlord of the audit. If the audit shall reveal that
Percentage Rent shall have been underpaid by an amount equal to or greater than
three percent (3%) of the Percentage Rent paid by Tenant, then Tenant shall, in
addition, upon demand, pay Landlord's costs of such audit. If any audit shall
reveal an understatement equal to fifteen percent (15%) or more of the Gross
Receipts initially reported by Tenant, Landlord, in addition to all other
remedies hereunder, shall have the right to terminate this Lease upon thirty
(30) days notice to Tenant.
5.11 CONFIDENTIALITY. Landlord agrees that all financial information
provided by Tenant shall remain confidential, and shall not be divulged or
published by Landlord, except to current or future mortgagees of all or part of
the Property, prospective purchasers of all or part of the Property, and
Landlord's accountants, attorney's and other agents or representatives acting on
behalf of Landlord with regard to the Property. Moreover, this provision shall
not be construed to prohibit Landlord from placing of record any information
relating to Tenant's finances in any litigation between the parties with regard
to the determination, collection, or both, of amounts of Percentage Rent due to
Landlord hereunder.
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SECTION 6 - SERVICES TO BE FURNISHED BY LANDLORD.
-------------------------------------------------
6.1 SERVICES. Subject to reimbursement as provided in Section 19 hereof,
Landlord agrees to furnish Tenant the foll owing services ("Services") at the
proper season. Routine maintenance, repairs, cleaning, and electric lighting
service for all Common Areas and Exterior Common Areas of the Property in the
manner and to the extent consistent with similar tourist retail properties in
the surrounding area along the north end of International Drive.
6.2 BEST EFFORTS. Landlord shall in no way be liable for cessation of any
of the Services of Subsection 6.1 caused by strike, accident or breakdown, nor
shall Landlord be liable for damages from any of the fixtures or equipment in
the Property being out of repair, or for injury to person or property, caused by
any defects in the electrical equipment, heating, ventilating and air
conditioning system, or water apparatus. Landlord shall not be liable for any
damages arising out of failure to furnish the Services enumerated in Subsection
6.1. Cessation of any of the Services of Subsection 6.1 shall not be considered
to be an eviction or disturbance of Tenant's use of the Premises, nor shall this
Lease or any of the provisions be deemed invalidated by such cessation. Landlord
agrees, however, to use its best efforts to restore the Services provided herein
as quickly as possible. Should any of the equipment or machinery used in the
provision of Services for any cause cease to function properly, Tenant shall
have no claim for offset or abatement of rent or damages on account of an
interruption in Service occasioned thereby or resulting there from.
6.3 AVAILABILITY OF UTILITIES. Landlord's obligation to furnish light to
Common Areas and Exterior Common Areas shall be conditioned upon the
availability of adequate energy sources. Landlord shall have the right to reduce
lighting within the Property as required by any mandatory fuel or energy
conservation or allocation statute, regulation, order or program.
6.4 EXCLUSIVE OBLIGATIONS. Except as otherwise expressly provided herein,
Landlord shall not be required to maintain, to make any repairs or replacements
to, or to provide any services or supplies to, the Premises.
SECTION 7 - GRAPHICS.
---------------------
7.1 STANDARD GRAPHICS. Landlord shall provide Tenant with a proposed
monopole sign plan for the Property within forty-five (45) days from the
execution hereof. Tenant shall have ten (10) days to review and satisfy itself
with said sign. Thereafter, Tenant agrees to share such a freestanding monopole
sign with other tenants in the Property and Tenant shall have the option to
place its sign on the highest point of such shared sign, but under the sign that
identifies the Property, as shall be depicted on the Sign Schedule attached
hereto as Exhibit "F". Tenant shall pay its prorata share of the cost of said
sign. If the same shall be permitted by law without reducing the signage
otherwise available to the Property and without interfering with the permitting
and construction of such monopole signs for the Property, Landlord shall permit
and shall use commercially reasonable
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efforts to assist Tenant to apply for its own monopole signage to be used for
advertising Tenant's business. Landlord shall not be responsible for any cost or
expense relating to the Tenant's separate monopole sign. Tenant must obtain said
sign permit, if any, by Commencement Date. If Tenant fails to obtain a sign
permit by Commencement Date as provided herein, then Tenant shall be deemed to
have waived its right to construct a separate monopole sign. Provided that the
foregoing shall be permitted as described herein, Tenant shall place such sign
at Tenant's sole cost at a location mutually acceptable to Landlord and Tenant
and Tenant's sign shall be of such material, type and size as shall be approved
by Landlord.
7.2 STORE FRONT SIGN. In addition to the free-standing monopole sign,
Tenant may construct, at Tenant's sole cost and expense, a sign or signs and
canopy on the exterior portion of the Premises advertising Tenant's business in
the Premises, if and as such shall be approved by appropriate governmental
authorities. Said sign or signs shall be of such size, shape, and design, and
shall be in such location on the Property, as shall be approved by the Landlord.
Under no circumstance shall any sign advertise anything other than Tenant's
business conducted on the Premises, or which Landlord shall reasonably determine
to be obscene, vulgar, or offensive.
7.3 APPROVAL OF LANDLORD. Except as specifically authorized elsewhere
herein, the Tenant shall not place or suffer to be placed or maintained on the
exterior portion of any door, roof, wall, or window of the Premises, or any
other portion of the Property, any sign, or advertising matter or other thing of
any kind, without first obtaining the Landlord's prior written approval and
consent, which Landlord shall not unreasonably withhold, provided that the
foregoing shall not limit the Tenant's right to place signs on the interior
surfaces of the Premises' windows and doors and to place advertising materials
and signs in the interior of the Premises. Under no circumstance shall any sign
be erected by or for Tenant, which shall advertise anything other than Tenant's
business conducted on the Premises, or which Landlord shall determine to be
obscene, vulgar, or offensive. The Tenant further agrees to maintain any such
sign, awning, canopy, decoration, lettering, advertising matter or other thing
as may be approved, in good condition and repair at all times and to remove same
at the end of the term if so requested by the Landlord.
SECTION 8 - REPAIRS AND ALTERATIONS BY TENANT.
----------------------------------------------
8.1 REPAIRS AND MAINTENANCE. Tenant accepts the Premises in their present
condition, subject to completion of the Landlord and Tenant Improvements. Tenant
will, at Tenant's sole expense, maintain and take good care of the Premises and
the fixtures, equipment and appurtenances which serve them, will suffer no
active or permissive waste or injury thereof. Tenant agrees, at Tenant's expense
to promptly repair (making replacements where necessary) any injury or damage to
the Premises. Tenant also agrees, at Tenant's expense to promptly repair (making
replacements where necessary) any injury or damage to other portions of the
Property caused by the misuse or neglect thereof by Tenant, Tenant's employees,
agents, invitees, or licensees. All such repairs and replacements shall be of a
quality equal to original installations. If Tenant fails to make such repairs
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or replacements within thirty (30) days of Landlord's demand, Landlord may, at
its option, make repairs or replacements, and Tenant shall repay the cost
thereof to Landlord on demand as additional rent. Subsequent to the Commencement
Date, the Landlord shall have no obligation to maintain, make any repairs,
replacements, improvements, or alterations whatsoever to the Premises other than
maintaining in good order and repair during the Lease Term the Common Areas and
Exterior Common Areas, including, but not limited to, the roof, exterior walls
(but not glass, plate glass or doors), and foundations of the building or
buildings containing the Premises and all other premises rented or held for rent
by Landlord on the Property, and paved parking areas, provided that damage
thereto shall not have been caused by the negligence or fault of the Tenant, its
employees, servants or invitees, or by burglary or attempted burglary of the
Premises, in which event the Tenant shall be responsible for all repairs and
maintenance. Landlord's expenses of repairs, maintenance, and replacements of
Common Areas and Exterior Common Areas shall be included in Operating Expenses
described in Subsection 19.4 hereof, for which Tenant shall be obligated to pay
its pro rata share as provided in Section 19. The Tenant shall service, keep and
maintain, making replacements where necessary, the interior of the Premises and
all fixtures and systems serving the Premises, including, without limitation,
all wiring, piping, fixtures, doors, equipment, heating, air conditioning,
plumbing, and electrical systems and appurtenances, in good order and repair
during the term of this Lease and any renewal terms and shall replace all glass
windows or doors damaged or broken during the Lease Term. All replacements shall
be Building Standard. Tenant shall be required to maintain a heating and air
conditioning maintenance contract for the Premises with professionals reasonably
acceptable to Landlord. Notwithstanding anything contained herein to the
contrary, however, Landlord and Tenant agree that (1) Tenant shall be solely
responsible at Tenant's cost for maintaining and repairing Exterior Common Areas
specific to and immediately surrounding the Premises (including, without
limitation, all walls, floors, roofing and other portions of the building
improvements located on the Premises, and (2) Tenant shall not be charged for
Operating Expenses which relate to Landlord's maintenance and repair of Exterior
Common Areas specific to and immediately surrounding the premises of other
tenants of the Property, but such exclusion shall in no way be extended to an
exclusion for charges relating to Exterior Common Areas of the Property which
are utilized by all tenants of the Property (including, without limitation the
monopole signs (for the benefit of the entire Property), streets, alleys, areas,
area-ways, passages or sidewalks located on the Property).
8.2 ALTERATIONS AND ADDITIONS. Except for ordinary repairs and maintenance
performed by Tenant pursuant to Section 8.1 above, Tenant will not, without
Landlord's written consent make any exterior or structural interior alterations,
additions or improvements in or about the Premises. Landlord shall not
unreasonably withhold its consent, and if Landlord's consent shall be granted,
Tenant shall, at its sole cost and expense, obtain all appropriate governmental
permits, licenses, and approvals prior to beginning any such work in the
Premises, shall have all required inspections made thereafter, and all
improvements shall be made in accordance with the plans and specifications
submitted to and approved by Landlord, and each and every provision of
applicable laws, regulations, codes, and legal requirements. All alterations,
additions or improvements (including,
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but not limited to, carpets, drapes and drapery hardware) made or installed in
the Premises by or for Tenant, or by the Landlord for Tenant's benefit, shall
become the property of Landlord upon the expiration or earlier termination of
this Lease. Nevertheless, provided that Landlord notifies Tenant at the time of
Landlord's approval of any improvements, alterations or additions that Landlord
may require such improvements, alterations or additions be removed by Tenant,
Landlord reserves the right to require Tenant, at Tenant's expense: (i) to
remove any additions made to the Premises by or for Tenant, or by Landlord for
Tenant's benefit; and (ii) to repair all injury done by or in connection with
installation or removal of said additions. Tenant shall not remove the walk-in
cooler and freezers HVAC system, hood and ventilation systems from the Premises.
Tenant further agrees to do so prior to the expiration or earlier termination of
this Lease, or within ten (10) days after notice from Landlord, whichever shall
be later.
8.3 REMOVAL OF PERSONAL PROPERTY. Immediately upon the expiration or
earlier termination of this Lease, if Tenant shall have performed all
obligations imposed and shall have paid all sums of rent which have or may come
due hereunder, such that the property of Tenant shall be no longer be subject to
Landlord's lien for rent, Tenant shall remove all Tenant's personal property,
with the exception of the walk-in freezer, hood and ventilation system for stove
or grill and all fire extinguishing systems from the Premises and Tenant shall
repair all injury done by or in connection with the installation or removal of
said property, and shall surrender the Premises (together with all keys and
other access devices to the Premises and Property) in as good a condition as
they were at the beginning of the Term, reasonable wear and tear excepted. All
property of Tenant remaining on the Premises thereafter shall be deemed
conclusively abandoned and may, at the election of Landlord, either be retained
as Landlord's property or be removed by Landlord, and Tenant shall reimburse
Landlord for the cost of removing the same, which shall be in addition to
Landlord's right to require Tenant to remove any improvements or additions made
to the Premises by Tenant pursuant to Subsection 8.2.
8.4 CONTRACTORS AND BONDS. In doing work of any nature in, to, or about
the Premises, Tenant will use only duly licensed contractors or workmen approved
by Landlord. Notwithstanding the foregoing, however, the foregoing approval
right of Landlord shall not apply to any subcontractors of the general
contractor. Tenant shall have the right to use Tenant's affiliate, Steak House
Construction Company, as the general contractor for the initial construction of
the Premises, provided such general contractor shall be licensed by all
appropriate governmental agencies and bonded as set forth elsewhere in this
Agreement. As a condition to approval of any Tenant alterations or additions,
Landlord may, but shall have no obligation to, require Tenant to provide a bond
against any potential claims of lien for materials or labor to be furnished to
the Premises on Tenant's behalf, proof of availability of cash for payment of
all said improvements, or both, and may impose such additional conditions,
restrictions, or requirements as Landlord shall deem to be necessary or
appropriate to assure the Tenant's compliance with this Lease or to reduce or
avoid interference of the work with the businesses of the Landlord and other
tenants on the Property.
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SECTION 9 - PARKING AND EXTERIOR COMMON AREAS.
----------------------------------------------
9.1 USE OF EXTERIOR COMMON AREAS. During the term of this Lease, Tenant
shall have the nonexclusive use in common with Landlord, other occupants of the
Property, their agents, employees, guests and invitees, of the common automobile
parking areas, driveways, and footways, which are part of the Exterior Common
Areas, subject to the Building Rules governing the use thereof as prescribed
from time to time as provided in Section 4. Building Rules may designate certain
areas for Tenant and employee parking, for parking of trucks and delivery
vehicles, and for loading and unloading merchandise, equipment, and supplies for
the Premises, and as ingress, egress, drives, walks and fire lanes. Tenant shall
require its employees to park in the areas designated as employee parking as
shown on the Preliminary Site Plan. Landlord reserves the right to have Tenant's
employees vehicles towed if they shall be parked on the Property other than in
designated employee parking areas, and Tenant shall defend, indemnify, and hold
harmless Landlord from and against any claims and liabilities on account of any
such towing. Landlord reserves the right to change the location of Tenant's
employee parking provided that such change does not reduce the amount of parking
available to the Property.
9.2 RESERVED PARKING. No specific designated parking spaces shall be
assigned to Tenant unless otherwise agreed by Landlord and Tenant in writing.
Landlord agrees that during the term of this Lease Agreement, it will not grant
any other party an exclusive use of any of the parking area.
9.3 CHANGES TO COMMON AREAS. Landlord reserves the right, in its sole
discretion, to modify, change, alter, increase or diminish the size, location
and use of all Common Areas and Exterior Common Areas, provided that at all
times there will be no less than 180 parking spaces available for use of the
Property and provided that no change shall materially affect the visibility of
Tenant improvement from International Drive. Landlord may lease or let portions
thereof to other tenants, licenses, or concessionaires, for use in their trades
or business, with or without additional improvements, whether permanent or
temporary, Tenant shall have no claim or set-off for any alterations to the
Common Areas and Exterior Common Areas in compliance with this Subsection.
SECTION 10 - ENTRY BY LANDLORD.
-------------------------------
Landlord reserves the right, but shall have no obligation, and Tenant
shall permit Landlord, its agents and representatives, to enter into and upon
any part of the Premises at all reasonable hours (and in emergencies at all
times) to inspect the condition, occupancy or use; to show the Premises to
prospective purchasers, mortgagees, tenants or insurers; or to clean or make
repairs, alterations or additions to the Premises or the Property, and Landlord
shall have the right to take and store any necessary equipment and materials
therein during such repairs, alterations, and additions. Tenant shall not be
entitled to any abatement or reduction of rent by reason of this right of entry.
Tenant hereby waives any claim for damages for any injury or inconvenience to,
or
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interference with, Tenant's business, any loss of occupancy or quiet enjoyment
of the Premises, or any other loss occasioned thereby. Landlord shall have the
right to use any and all means that Landlord may deem necessary or proper to
open the doors in an emergency, in order to obtain entry to any portion of the
Premises, and any entry to the Premises or portions thereof obtained by Landlord
by any of said means, or otherwise, shall not, under any circumstances, be
construed or deemed to be a forcible or unlawful entry into, or a detainer of,
the Premises, or an eviction, actual or constructive, of Tenant from the
Premises or any portion thereof. Except in the case of emergency, Landlord and
its agents shall be accompanied by Tenant or its agents, and Tenant shall make
itself or its agents available for such purpose on demand during Required
Business Hours.
SECTION 11 - ASSIGNMENT AND SUBLETTING.
---------------------------------------
11.1 LANDLORD'S CONSENT. Tenant shall not assign, sublease, transfer,
pledge or encumber this Lease, the Premises, or any interest therein (including
the granting of any concessions, licenses or other rights to persons or entities
other than Tenant's employees to occupy the Premises for business or other
income-producing activities), without Landlord's prior written consent, which
consent shall not be unreasonably withheld provided that (1) the proposed
Transferee has a net worth equal to or greater than that of Tenant as of the
Commencement Date and as of the date of the proposed assignment, subletting or
other transfer, (2) the Transferee proposes to operate on the Premises a full
service restaurant, which is not out of character and not conflicting with, or
cause any default on the part of the Landlord with respect to the terms of any
other lease(s) it has entered into with respect to any other portion(s) of the
Property, and (3) Landlord is reasonably satisfied with all other information
provided as set forth in Subsection 11.2 below. Any such attempted assignment,
sublease or other transfer or encumbrance by Tenant in violation of the terms
and covenants of this Subsection shall be void. For purposes hereof, if Tenant
shall be a corporation, partnership, limited partnership, or other entity other
than a natural person, the transfer, sale, or other disposition of fifty percent
(50%) or more of the stock, partnership interest, or other beneficial interest
in such entity, shall not be deemed an assignment of this Lease. If Tenant's
interest in the Premises and this Lease is transferred to an Affiliate or to
another entity as part of a transaction by which such other entity shall acquire
the Premises and all other restaurants operated by Tenant, then the Landlord's
consent shall be granted, provided that the Tenant shall first provide to
Landlord all information required under the terms of Subsection 11.2 hereof, the
acquiring entity shall first assume and agree to pay all obligations of the
Tenant hereunder, and the Tenant shall first reaffirm their continuing
obligations for the Tenant's performance under the terms of this Lease.
11.2 NOTICE. If Tenant shall desire Landlord's consent to any subletting,
assignment, or other transfer, Tenant shall give Landlord thirty (30) days prior
written notice thereof. Written notice shall not be deemed to have been given to
Landlord until Tenant shall have provided Landlord each of the following:
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18
(a) The name, address, and telephone number of the proposed new
tenant or transferee of the stock, partnership, or other beneficial interest in
Tenant ("Transferee");
(b) A description of the space to be sublet or assigned;
(c) A copy of the fully executed sublease, assignment, or other
agreement deemed an assignment, sublease, transfer, pledge, or encumbrance of
the Lease, the Premises, or any interest therein (which agreement shall be
contingent upon Landlord's written consent); or a summary of the business terms
if the transfer shall consist only of a transfer of an interest in the Tenant;
(d) The nature and character of business of the new tenant or
Transferee, and years of experience in such business;
(e) The proposed use of the Premises by the new tenant or Transferee;
(f) Current financial information on the proposed new tenant or
Transferee; and
(g) Such other information as Landlord shall reasonably request.
11.3 NOTICE OF OBJECTION. Landlord shall notify Tenant no later than thirty
(30) days after receipt of the last item provided by Tenant pursuant to
Subsection 11.2 of Landlord's consent or objection to the proposed assignment,
sublease, transfer, pledge, or encumbrance. If Landlord shall not notify Tenant
of its objection by the end of said thirty (30) day period, Landlord shall be
deemed to have consented thereto. Landlord's consent shall not be unreasonably
withheld.
11.4 TRANSFERS WITHOUT CONSENT. If Tenant shall assign, sublease, transfer,
pledge, or encumber the Lease, the Premises, or any interest therein, without
Landlord's prior written consent, such assignment, sublease, transfer, pledge,
or encumbrance shall be an Event of Default. If Tenant or such new tenant or
Transferee shall knowingly provide, or allow to be provided, any false or
misleading information to Landlord pursuant to Subsection 11.2, Tenant, such new
tenant, or Transferee, or all of them, as the case may be, shall be deemed to
have committed an Event of Default. Landlord may collect rent from any such new
tenant or Transferee and apply the amount so collected to rent herein reserved,
and the same shall not be deemed to constitute or effect a waiver, consent,
ratification, or estoppel as to Landlord's right to treat such assignment,
sublease, transfer, pledge, encumbrance, or provision of false or misleading
information, as an Event of Default. Nor shall it constitute acceptance of the
new tenant or Transferee, or a release of the performance of the covenants on
Tenant's part to be performed as are herein contained.
11.5 CONSENT REQUIRED FOR EACH TRANSFER. The giving of consent by the
Landlord to any sublease, assignment, transfer, pledge, or encumbrance shall not
release Tenant from the performance of its covenants and obligations hereunder.
No consent given shall obviate the need for
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19
Landlord's prior written consent to any other or additional assignment,
sublease, transfer, pledge, or encumbrance of the Lease, the Premises, or any
interest therein, by Tenant, any new tenant, or Transferee.
11.6 FIRST REFUSAL. If Tenant shall notify Landlord of its intention to
assign this Lease or sublet all or any portion of the Premises, or if Tenant
shall become involved in bankruptcy proceedings under the Bankruptcy Code of the
United States, as the same may be amended from time to time, and the bankruptcy
trustee or debtor in possession shall intend to assign this Lease or sublet the
Premises, Landlord shall have the right of first refusal to reacquire the Lease
on the same terms and conditions as may be contained in any bona fide offer made
by any third party, which offer the Tenant or trustee or debtor intends to
accept.
SECTION 12 - MECHANIC'S LIEN.
-----------------------------
12.1 NO RIGHT TO CREATE LIENS. Tenant will not, and has no right, power, or
authority to, permit any mechanic's lien or liens to be placed upon the Premises
or the Property. Nothing in this Lease shall be deemed or construed in any way
as constituting the consent or request of Landlord, express or implied, to any
person for the performance of any labor or the furnishing of any materials to
all or part of the Premises or the Property, nor as giving Tenant any right,
power, or authority to contract for or permit the rendering of any services or
the furnishing thereof that would or might give rise to any mechanic's or other
liens against the Premises or the Property. This Lease, and all other Leases
with regard to the Property, prohibits the imposition of any lien upon the
Property or the Premises for any work or materials provided to, for, or at the
request of the Tenant or any other tenant on the Property. All "Lienors"
performing work on behalf of the Tenant are hereby notified that the Landlord's
interest in the Land shall not, under any circumstances, be subject to liens for
improvements made by the Tenant, and Tenant shall notify each of its contractors
of this provision prior to the commencement of construction, pursuant to Florida
Statutes 713.10, and further, Landlord shall file, in the public records, a
Memorandum of Lease, in accordance with Section 713.10, Florida Statutes.
12.2 EFFECT OF LIEN. If any lien is claimed against the Premises or the
Property for services or materials provided at the request, or for the benefit,
of Tenant, then, in addition to any other right or remedy of Landlord, Landlord
may, in its sole discretion, elect to (i) discharge the same, and any amount
paid by Landlord for such purposes shall be paid by Tenant to Landlord within
ten (10) days after Landlord's demand therefore; or (ii) notify Tenant that the
filing of such lien or claim of lien is an Event of Default.
SECTION 13 - PROPERTY INSURANCE.
--------------------------------
13.1 LANDLORD HAZARD INSURANCE. Landlord shall maintain and pay for fire
and extended coverage insurance on the Property and the Premises, including such
rental loss insurance as
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Landlord shall deem necessary, and the costs thereof shall be reimbursed
pursuant to Section 19 hereof. Payments for losses thereunder shall be made
solely to Landlord or the mortgagees of Landlord as their interests shall
appear, and Tenant shall have no claim thereto.
13.2 TENANT HAZARD INSURANCE. Tenant shall maintain at its expense, in an
amount equal to full replacement cost, fire and extended coverage insurance on
all of its personal property, including removable trade fixtures, located in the
Premises, naming Landlord as a mortgagee/secured party. Tenant's insurance shall
be written by one or more responsible insurance companies acceptable to
Landlord, and licensed to do business in the state in which the Premises are
located.
13.3 PROOF OF INSURANCE. At the time of execution hereof, and thereafter
prior to the expiration date of each policy, Tenant shall provide Landlord with
current certificates of insurance evidencing Tenant's insurance coverage for the
next twelve (12) months in compliance with Sections 13 and 14 hereof, including
the insurer's agreement pursuant to Subsection 13.4, on forms which shall
neither disclaim the insurer's liability to the Landlord for reliance upon their
content, nor permit the insurer to alter the terms of the insurance coverage
without ten (10) days prior written notice to the Landlord. Tenant shall deliver
to Landlord a true and correct copy of Tenant's original hazard and liability
insurance policies upon receipt by Tenant, but in no event later than thirty
(30) days after the date of expiration or termination of the Tenant's prior
policy.
13.4 NOTICES BY TENANT'S INSURER. Tenant shall obtain the agreement of
Tenant's insurers to notify Landlord at least ten (10) days prior to
cancellation, expiration, or material modification of any insurance coverage
required of Tenant pursuant to Sections 13 and 14 hereof.
13.5 WAIVER OF LIABILITY. Tenant hereby waives any and all rights of
recovery against Landlord for or arising out of damage to or destruction of any
property of Tenant from causes then included under standard fire and extended
coverage insurance policies or endorsement, and Tenant covenants and agrees with
Landlord that it will obtain a waiver from the carrier of its insurance on the
Premises releasing such carrier's subrogation rights as against Landlord.
SECTION 14 - LIABILITY INSURANCE.
---------------------------------
14.1 COMPREHENSIVE GENERAL LIABILITY. Tenant shall, at its own expense,
maintain a policy or policies of comprehensive general liability insurance, with
respect to its activities on or about the Property, with the premiums thereon
paid for on or before due date, issued by and binding upon an insurance company
licensed in the state where the Premises are located, approved by Landlord. Such
insurance shall afford minimum protection not less than the Minimum Coverage
specified in Subsection 1.14 hereof. Landlord and any other entity so designated
by Landlord, and any holder of a lien encumbering the Property designated to
Tenant by Landlord, shall be named as an additional insured under Tenant's
policy of comprehensive general liability insurance. Not more frequently than
once every three (3) years Landlord may require that the Minimum Coverage is
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increased to an amount that is commercially reasonable for similar properties in
the general geographic area. In addition, if any institutionalized lender
requires an increase in the per occurrence insurance coverage, the Tenant agrees
to provide said increase.
14.2 NO THEFT INSURANCE. Landlord shall not be required to maintain
insurance against thefts within the Premises or on or about the Property.
SECTION 15 - ASSUMPTION OF RISK.
--------------------------------
15.1 WAIVER OF LIABILITY. Landlord shall not be liable to Tenant or
Tenant's customers, licensees, agents, guests or employees for any injury or
damages to its, his or their persons or property by any cause whatsoever,
including, but not limited to, acts or omissions of any other tenant in the
Property, construction defects, water, rain, sleet, snow, fire, storms,
negligence (specifically including the Landlord's own negligence), crimes and
intentional torts and accidents, breakage, stoppage, or leaks of gas, water,
heating, sewer pipes, boilers, wiring or plumbing, any equipment or apparatus,
or any other defect in, on or about the Premises or the Property, unless such
injury or damages are caused solely by the willful misconduct or gross
negligence of Landlord.
15.2 INDEMNIFICATION. Tenant expressly assumes all liability for or on
account of any such injury, loss or damage referred to in Section 15.1 above
(specifically including Landlord's own negligence), and will at all times,
indemnify, defend, and save Landlord harmless from and against all liability,
damage, or expense caused by or arising out of any such injury, loss or damage
to persons or property upon the Premises or the Property, including, but not
limited to, costs and attorneys fees. Tenant's insurance, pursuant to Subsection
14.1 shall insure against such liability of Tenant, but Tenant's obligations
hereunder shall not be limited to the amount of such insurance. If Tenant shall
cause or permit any Hazardous Materials to be brought upon, kept, or used in or
about the Property, or if the presence of Hazardous Materials in the Property
caused or permitted by Tenant results in contamination of the Property, or if
contamination of the Premises by Hazardous Materials otherwise occurs as the
result of any action or inaction of Tenant, its agents, employees, customers, or
contractors, then Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all claims, judgments, damages, penalties, fines,
costs, liabilities or losses (including, without limitation, diminution in value
of the Premises and the Property, damages for the loss or restriction on use of
any portion of the Premises or the Property, damages arising from any adverse
impact on marketing of rentals in the Premises and the Property, sums paid in
settlement of claims, attorneys' fees, consultant fees, and expert fees, costs
incurred in connection with any investigation of site conditions or any
clean-up, remedial, removal, or restoration work required by any Federal, state,
or local governmental agency or political subdivision) which arise during or
after the Lease Term as a result of such contamination. Without limiting the
foregoing, if the presence of any Hazardous Materials on the Property caused or
permitted by Tenant results in any contamination of the Property, Tenant shall
promptly take all actions at its sole cost as are necessary to return the
Property to the condition existing prior to the introduction of such Hazardous
Material; provided that
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Landlord's approval of such action shall first be obtained, which approval shall
not be unreasonably withheld so long as such actions would not potentially have
any adverse material long term effect on the Property. All provisions for
indemnification and cure contained in this Subsection 15.2 shall survive the
expiration or earlier termination of this Lease.
SECTION 16 - CASUALTY DAMAGE.
-----------------------------
16.1 NOTICE. If the Premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give prompt written notice thereof to Landlord.
16.2 LANDLORD'S TERMINATION RIGHT. If the Premises shall be so damaged
that, in Landlord's sole opinion, it shall not be economical to repair or
reconstruct the damaged Premises, or in the event any mortgagee of Landlord's
should require that the insurance proceeds payable as a result of a casualty to
the Property or the Premises be applied to the payment of the mortgage debt, or
in the event of any material uninsured loss to Property or the Premises,
Landlord may, at its option, terminate this Lease by notifying Tenant in writing
of such termination within ninety (90) days after the date of such damage. In
the event this Lease is terminated by Landlord as provided in this Subsection,
rent and all other sums due hereunder accruing subsequent to the date of the
casualty shall xxxxx.
16.3 LANDLORD'S OBLIGATION TO REBUILD. If Landlord does not elect to
terminate this Lease pursuant to Subsection 16.2, Landlord and Tenant shall
commence and proceed with reasonable diligence to restore the Premises to
substantially the same condition in which it was immediately prior to the
happening of the casualty. Landlord's obligation to restore the Premises shall
not exceed the proceeds of insurance actually received by Landlord as a result
of such casualty and directly relating to the Premises.
16.4 NO BUSINESS LOSS DAMAGES. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the repair thereof. There shall be no
abatement or diminution of rent on account of any such damage or repair unless
Landlord shall have terminated the Lease pursuant to Section 16.2 above.
SECTION 17 - CONDEMNATION.
--------------------------
17.1 TAKING OF PROPERTY OR PREMISES. If the whole or substantially the
whole of the Property or the Premises should be taken for any public or
quasi-public use, by right of eminent domain or otherwise, or if it should be
sold in lieu of condemnation (a "Taking"), then this Lease shall terminate as of
the earlier of the date on which physical possession of the Property or the
Premises, or such part thereof as shall be taken, is taken by the condemning
authority, or the date title is vested in the condemning authority.
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17.2 PARTIAL TAKING. If part of the Property, but less than the whole or
substantially the whole of the Property or the Premises is thus taken or sold,
Landlord (whether or not the Premises are affected thereby) may terminate this
Lease if Landlord determines, in Landlord's reasonable opinion, that the
operation of the remaining Property would be unlawful or uneconomical, by giving
written notice thereof to Tenant, in which event this Lease shall terminate as
of the earlier of the date when physical possession of such portion of the
Property is taken by the condemning authority, or the date title is vested in
the condemning authority. If any partial Taking of the Property shall be to such
an extent as to render the Permitted Use of the Premises unlawful or
uneconomical, then Tenant may terminate this Lease by written notice to Landlord
within thirty (30) days after such Taking.
17.3 RENT ADJUSTMENT. If this Lease is not so terminated upon any such
Taking, the Base Rent payable hereunder shall be diminished in proportion to the
portion of the Premises taken or conveyed, and Landlord shall, to the extent
Landlord deems it to be feasible, restore the Property and the Premises to
substantially its former condition, but in no event shall Landlord be required
to spend for such work any amount in excess of the amount received by Landlord
specifically as compensation for such costs of restoration in the proceedings
related to the Taking.
17.4 PROCEEDS. All amounts awarded upon a taking of any part or all of the
Property or the Premises, shall belong to Landlord, and Tenant shall not be
entitled to, and expressly waives all claim to, any such compensation.
17.5 TENANT'S BUSINESS LOSSES. Tenant shall be entitled to claim
independently against the condemning authority any damages expressly referable
to Tenant's business as the same may be permitted by law, provided such claim
shall not reduce any award payable to Landlord.
SECTION 18 - EVENTS OF DEFAULT/REMEDIES.
----------------------------------------
18.1 EVENTS OF DEFAULT BY TENANT. The happening of any one or more of the
following listed events (Events of Default) shall constitute a breach of this
Lease by Tenant: (a) the failure of Tenant to pay any rent or any other sums of
money due hereunder if such failure shall continue for a period of three (3)
days after written notice; (b) the failure of Tenant to comply with any other
provision of this Lease or any other agreement between Landlord and Tenant (all
of which terms, provisions, and covenants shall be deemed material) within ten
(10) days after written notice; provided, however, that if the failure does not
pose a threat to the health or safety of any person and if the nature of the
failure is such that more than ten days would be reasonably required to cure the
failure, then Tenant shall not be in default provided that Tenant commences to
cure the default within such ten-day period and thereafter Tenant diligently
cures such failure or default within thirty (30) days after the written notice,
and provided, however, that if the Tenant shall have failed to comply with any
provision of this Lease on two (2) or more occasions within any twelve (12)
month period, and if notice thereof shall have been provided by Landlord, no
notice or opportunity for cure shall be required with respect to any subsequent
noncompliance with the Lease; (c) the taking of the
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leasehold on execution or other process of law in any action against Tenant; (d)
the failure of Tenant to accept the Premises, to promptly move into, complete
any tenant improvements to, take possession of, and to operate its business in
the Premises after the Commencement Date, or if Tenant ceases to do business in
or abandons any substantial portion of the Premises, other than on account of
force majeure; (e) Tenant becoming insolvent or unable to pay its debts as they
become due, or Tenant's notice to Landlord that it anticipates either condition;
(f) the filing of any bankruptcy or similar proceeding by or against Tenant
under any applicable law; (g) the appointment of a receiver or trustee for
Tenant's leasehold interest in the Premises or for all or a substantial part of
the assets of Tenant; (i) the death or dissolution of the Tenant; and (h) any
other act or omission designated as an Event of Default in this Lease. The
notices to Tenant required, and the opportunities for cure provided, under this
Subsection 18.1 are the exclusive notice requirements and cure periods available
to Tenant for any breach of this Lease, and Tenant hereby waives all other or
additional notice requirements, cure periods, and rights of redemption imposed,
created, provided, or otherwise allowed by law.
18.2 REMEDIES. Upon the occurrence of any Event of Default by Tenant,
whether enumerated in Subsection 18.1 or not, other than an Event of Default
identified in item (a) of Subsection 18.1, if Tenant fails to cure any such
default within ten (10) days of written notice from Landlord (or such greater or
lessor period of time as shall be specified elsewhere herein for Tenant's
compliance with specific duties or obligations), or if the default is of such a
nature that it shall not be reasonably possible to cure such default within ten
(10) days after written notice, if Tenant shall fail to commence action
reasonably calculated to cure such default within ten (10) days after written
notice from Landlord, or shall thereafter fail to pursue the cure of the default
to completion continuously and with diligence, Landlord shall have the option at
Landlord's election then, or at any time thereafter, to pursue any one or more
of the following remedies:
(a) Landlord may give Tenant written notice of Landlord's intention
to terminate this Lease on the date of such notice or any later date specified
therein, whereupon all Tenant's right, title and interest in and to this Lease
and the Premises shall cease and this Lease shall be terminated, except as to
Tenant's liability for rent, costs, attorneys' fees, and other sums hereunder.
Thereupon, Landlord shall be entitled to recover all sums of unpaid rent through
the date of termination. Landlord shall also recover from Tenant, in one or more
actions, all sums of rent coming due during that portion of the remaining Lease
Term (or any applicable extension or renewal thereof) as they would have come
due under the terms of this Lease, on a monthly basis, or at the scheduled
expiration of the said Lease Term (or any applicable extension or renewal
thereof), or, at Landlord's option, to recover against Tenant as damages for
loss of the bargain, and not as a penalty, an aggregate sum which, at the time
of such termination of this Lease, represents the excess, if any, of the
aggregate of the rent and all other sums payable by Tenant hereunder that would
have accrued for the balance of the Lease Term (or any applicable extension or
renewal thereof) over the aggregate rental value of the Premises for the balance
of such Lease Term (or any applicable extension or renewal thereof), both
discounted to present worth at the rate of six percent (6%) per annum, together
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with all costs of eviction, removal, storage, repairs, and collection which may
be incurred by Landlord. In determining the aggregate rental value of the
Premises, actual or reasonably estimated expenses for brokerage commissions,
legal expenses, repair and tenant improvement costs, rent holidays, and periods
of lease-up vacancy shall be taken into account.
(b) Landlord may reenter and take possession of the Premises or any
part thereof, and expel Tenant and those claiming through or under Tenant, and
remove the effects of both or either, using such force as may be necessary
without being liable for prosecution therefore, without being deemed guilty of
any manner of trespass, and without prejudice to any remedies for arrears of
rent or preceding breaches of covenants or conditions. Should Landlord elect to
re-enter as provided herein or pursuant to legal proceedings, Landlord may, from
time to time, without terminating this Lease, relet the Premises or any part
thereof in Landlord's or Tenant's name, but for the account of Tenant, for such
term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Lease) and on such
conditions and upon such other terms (which may include, but shall not be
limited to, concessions of free Rent and alteration and repair of the Premises)
as Landlord, in its sole discretion, may determine, and Landlord may collect and
receive the rents therefore. Landlord shall in no way be responsible or liable
for any failure to relet the Premises, or any part thereof, or for any failure
to collect any rent due upon such reletting. No such re-entry or taking
possession of the Premises by Landlord shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention is given to Tenant. No notice or lack thereof, from Landlord hereunder
or under a forcible entry and detainer statute or similar law shall constitute
an election by Landlord to terminate this Lease unless such notice specifically
so states. Landlord reserves the right following any such re-entry and/or
reletting to exercise its right to terminate this Lease by giving Tenant such
written notice, in which event this Lease will terminate as specified in said
notice. In the event that Landlord does not elect to terminate this Lease, but
on the contrary, elects to take possession hereunder, Tenant shall pay to
Landlord: (i) the rent and other sums as herein provided, which would be payable
hereunder if such repossession had not occurred, less (ii) the net proceeds, if
any, of any reletting of the Premises after deducting all Landlord's expenses in
connection with such reletting, including, but without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
expenses of employees, alteration and repair costs and expenses of preparation
for such reletting. If, in connection with any reletting, the new lease term
extends beyond the existing term, or the premises covered thereby include other
premises not part of the Premises, a fair apportionment of the rent received
from such reletting and the expenses incurred in connection therewith as
provided above will be made in determining the net proceeds from such reletting.
(c) Landlord may enter upon the Premises and do whatever Tenant is
obligated to do under the terms of this Lease (and Tenant shall reimburse
Landlord on demand for any expenses which Landlord may incur in effecting
compliance with Tenant's obligations under this Lease, and Landlord shall not be
liable for any damages resulting to the Tenant from such action).
(d) Landlord may pursue any other remedy provided by law or in
equity.
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Upon the occurrence of an Event of Default identified in subparagraph
(a) in Subsection 18.1, Landlord shall immediately have the option, at
Landlord's election to pursue any remedy set forth in subparagraphs (a) through
(d) of this Subsection 18.2 without notice to Tenant or any further opportunity
to cure. If Tenant shall commit or allow to occur any Event of Default
identified in subparagraphs (b) through (h) of Subsection 18.1 and Tenant shall
thereafter, and within twelve (12) months of the prior Event of Default, commit
or allow to occur the same or any substantially similar Event of Default, then
the periods provided for Tenant to cure such later default shall be reduced from
ten (10) days to three (3) days after written notice. The notice to Tenant
required under this Lease are the exclusive notice requirements upon the
occurrence of any Event of Default by Tenant, and are in lieu of any other
notice requirements imposed by applicable law. Tenant hereby waives all other or
additional notice requirements imposed by law, specifically including those set
forth in chapter 83 of the Florida Statutes.
18.3 PERCENTAGE RENTS, OPERATING EXPENSES, AND BASE RENT ADJUSTMENTS UPON
DEFAULT. In determining the rents due to Landlord under Subsection 18.2 in the
Event of Default, if Percentage Rent shall have been paid or payable by Tenant
during the two (2) Lease Years prior to the Event of Default, then the
Percentage Rent for the Lease Year in which the Event of Default shall occur
shall be conclusively presumed to be equal to the average Percentage Rent
payable with respect to the said two (2) preceding Lease Years. For purposes of
Subsection 18.2, if at the time a calculation of sums due to the Landlord shall
be required, the actual amounts of the Base Rent adjustment under Subsection
5.6, or Tenant's share of Operating Expenses under Section 19, or both, shall
not be definitely determinable for any current or future Lease Year or Lease
Years, such amounts shall be conclusively presumed to equal the last amount
which was definitely determinable.
18.4 EFFECT OF TERMINATION. Tenant agrees that upon the occurrence of an
Event of Default, and after notice from Landlord to Tenant in accordance with
the provisions of Subsection 18.2 that the Landlord has elected to terminate
this Lease, each, every and all rights and claims of Tenant in and to this Lease
and the Premises shall immediately terminate, cease, and expire. Tenant agrees
that such termination shall be deemed to have been in accordance with the terms
of the Lease effective as of the date specified in such notice. In the event
that the Tenant shall thereafter seek protection under any provision of the
United States Bankruptcy Code, the Tenant shall have no interest in the Lease or
the Premises, no proceedings by the Landlord for recovery of physical possession
of the Premises shall be subject the terms of any automatic stay entered
incident to the filing of such petition after delivery of such notice of
termination, and any attempt by the Tenant to assert that the Lease, or any
purported interest of the Tenant in or to the Premises, is an asset of the
Tenant, shall be conclusively presumed to be made in bad faith and a fraud upon
the court.
18.5 REMEDIES CUMULATIVE. All the remedies of Landlord in the event of
Tenant default shall be cumulative and, in addition, Landlord may pursue any
other remedies permitted by law or in
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equity. Forbearance by Landlord to enforce one or more of the remedies upon an
Event of Default shall not constitute a waiver of such default.
18.6 EVENT OF DEFAULT BY LANDLORD. If Tenant asserts that Landlord has
failed to meet its obligations under this Lease, Tenant shall give written
notice (Notice of Default), to Landlord specifying the alleged failure to
perform, and Tenant shall send by certified mail, return receipt requested, a
copy of such Notice of Default to any mortgage holder (provided that Tenant has
been previously advised of the address of the mortgage holder, by Assignment of
Rents or otherwise). If Landlord shall not begin the cure of any failure of
Landlord to meet its obligations under this Lease within thirty (30) days of
receipt of the Notice of Default, and thereafter pursue such cure to completion,
then Landlord shall be in default. If Landlord shall have failed to begin and
pursue the cure of such failure within the time set forth above, then the
mortgagees shall have an additional thirty (30) days within which to cure such
failure, or if such failure cannot be cured within that time, then such
additional time as may be necessary if within such thirty (30) days any
mortgagee has commenced and is diligently pursuing the remedies necessary to
cure such failure, including, but not limited to, commencement of foreclosure
proceedings, if necessary, to effect such a cure, in which event the mortgagees,
as assignees of Landlord, shall not be considered to be in default while such
remedies are being so diligently pursued. Tenant agrees, as bargained for
consideration for this Lease, that unless and until Tenant shall have provided
each and every of the notices specified in this Subsection 18.6, and unless and
until any and all times for cure set forth in this Subsection 18.6 shall have
expired, Landlord shall not be deemed to have breached, or to be in default
under, any term or provision of this Lease, or any obligation imposed by law
upon the Landlord. In no event shall Tenant have the right to terminate or
rescind this Lease as a result of Landlord's default as to any covenant or
agreement contained in this Lease, or as a result of the breach of any promise
or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives
all remedies of self-help, set-off, termination, rescission, specific
performance, and injunctive relief, and hereby agrees that Tenant's remedies for
default hereunder and for breach of any promise or inducement shall be limited
to a suit for damages only.
SECTION 19 - OPERATING EXPENSES.
--------------------------------
19.1 PAYMENTS OF OPERATING EXPENSES. Tenant shall pay to Landlord, as
additional rent, his proportionate share of Landlord's Operating Expenses for
the Property. During the initial calendar year in the Lease Term, and until
adjusted as provided in Subsection 19.2, Tenant shall pay to Landlord each
month, in advance, on the first day of each month, the Estimated Monthly
Operating Expenses set forth in Subsection 1.8 hereof. When actual annual
Operating Expenses are determined, Landlord shall make the adjustments described
in Subsection 19.3 to reconcile the sum of Tenant's payments of Estimated
Monthly Operating Expenses for the year with Tenant's proportionate share of
actual Operating Expenses for the year.
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19.2 CALCULATION OF ACTUAL OPERATING EXPENSES. On the first day of February
next after the Commencement Date and each subsequent February 1st, or as soon
thereafter as the necessary information can reasonably be secured, Landlord
shall calculate the amount of actual Operating Expenses for the calendar year
immediately preceding. The actual Operating Expenses for the first calendar year
that the Property is occupied by tenants shall be annualized if such initial
occupancy occurs after the first day of January. The actual Operating Expenses
so determined shall be multiplied by the Operating Expense Percentage set forth
in Subsection 1.16 hereof in determining Tenant's proportionate share. From time
to time Landlord, in its reasonable discretion, shall increase or decrease the
Estimated Monthly Operating Expenses payable by Tenant so as to more accurately
reflect the actual Operating Expenses for the year, and upon providing notice to
Tenant of the amount of the new Estimated Monthly Operating Expenses, such
amount shall be the revised Estimated Monthly Operating Expenses allocable to
the Premises until subsequently adjusted hereunder. Landlord agrees that for
purposes of determining the Tenant's actual share of Annual Operating Expenses,
"Controllable Expenses" shall not increase at a greater annual rate than five
percent (5%), compounded annually. "Controllable Expenses" shall mean and refer
to those items of Operating Expenses excluding the items referred to in
Subparagraphs (c), (d), and (e) of Subsection 19.4 hereof.
19.3 ANNUAL ADJUSTMENT. At the time that the Landlord computes the actual
Operating Expenses, as provided in Subsection 19.2, Landlord shall determine
what adjustment, if any, shall be required to reconcile the Estimated Monthly
Operating Expenses paid during the preceding calendar year pursuant to
Subsection 19.2 with the actual Operating Expenses for such preceding calendar
year. If the product of the actual Operating Expenses multiplied by the
Operating Expense Percentage shall exceed the sum of the Estimated Monthly
Operating Expenses paid by Tenant for such calendar year, Tenant shall pay
Landlord within thirty (30) days of Landlord's demand therefore an amount equal
to the amount of such excess. If the sum of the Estimated Monthly Operating
Expenses paid by Tenant for such year shall exceed the product of the actual
Operating Expenses multiplied by the Operating Expense Percentage, Tenant shall
be allowed a credit against the next installment or installments of rent and
Estimated Monthly Operating Expenses coming due equal to such excess.
Appropriate adjustment shall be made to all amounts computed pursuant to this
Subsection to reflect Tenant's proportionate share of actual Operating Expenses
for any calendar year during which the entire Premises were not rented to Tenant
pursuant to this Lease. The obligations of Landlord and Tenant pursuant to this
Subsection shall survive the expiration or prior termination of this Lease. Any
amount which would otherwise be credited to rent by Landlord hereunder shall be
refunded to Tenant if the Lease shall have expired, after deducting therefrom
any other amounts which may be due to Landlord from Tenant. Landlord, upon
request, shall deliver to Tenant, in reasonable detail, the materials that make
up the actual Operating Expenses. Tenant shall have the right to audit said
materials at its own expense provided Tenant furnished Landlord sixty (60) day
written notice of its intention to audit said accounts. The written notice must
be received by Landlord within sixty (60) days from the date Tenant receives the
aforementioned materials from Landlord. The audit must be conducted at
Landlord's office. If the Tenant does not request an audit
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
29
and / or back up materials within six (6) months of receipt of the actual
Operating Expenses, then Tenant is deemed to have waived its right to audit the
actual Operating Expenses for that specific year. Landlord and Tenant agree that
any discrepancy in the Operating Expenses that is discovered by an audit, that
is within four (4%) percent of the actual total aggregate expense on the
Operating Expenses, shall be considered an acceptable margin of error and no
adjustment will be made between Landlord and Tenant.
19.4 OPERATING EXPENSES. It is intended that during the term of this Lease
the Base Rent shall be absolutely net to Landlord of all expenses of Landlord
incident to the Property and this Lease. "Operating Expenses" shall mean those
items of cost and expense paid or incurred by, or on behalf of, Landlord for
management, maintenance, repairs, replacements, and operation of the Property
and the personal property of Landlord used in the maintenance, repair, and
operation of the Property, including, but not limited to: (a) wages, salaries,
and fees along with related employment taxes, insurance benefits and
reimbursable expenses; (b) all operation, management, maintenance, inspection,
repairs, painting, replacements, upkeep and servicing of the Property and the
equipment therein or thereon, including all supplies, equipment, tools, and
materials used therein and thereon and service contracts; (c) water, power, fuel
and other utilities; (d) premiums and other charges with respect to insurance;
(e) all taxes and assessments and governmental charges and fees imposed upon the
Property and any other property used therein (including, without limitation, any
ad valorem real property or personal property taxes, special or general
assessments, occupancy, gross receipts or rental taxes imposed upon and paid by
Landlord, but not income or franchise tax or any other taxes imposed or measured
by Landlord's income or profits unless the same is in lieu of real estate taxes,
and not sales or rental taxes on rent which Landlord separately collects from
Tenant pursuant to Subsection 5.5); (f) the reasonable management fee paid to
any management company managing the Property for the Landlord, provided that if
Landlord self-manages the Property, Landlord shall be entitled to receive a
reasonable management fee (provided that any management fee whether paid to any
management company or reserved by Landlord shall not exceed four percent (4%) of
gross rents received by Landlord from the Property); and (g) reasonable reserves
or expenditures for paving, painting, roofing, HVAC, and other similar capital
expenditures made by Landlord for necessary replacements to maintain the
Property in Building Standard Condition, not to exceed three percent (3%) of the
total Base Annual Rent from the entire Property, annually. In no event shall the
term "Operating Expenses" include:
1. The cost of any repairs, alterations, additions, changes,
replacement and other items done to the Property, which under
generally accepted accounting principals, are classified as
capital expenditures or capital improvements.
2. Payments of principal and interest or other finance or other
finance charges, made on any debt, including without limitation,
and debt secured by a mortgage on the Property.
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
30
3. Non-cash items, such as deductions or depreciation, amortization
of debts or obsolescence of the Property, equipment or any
improvements related hereto.
4. Leasing and/or brokerage commissions, attorney's fees, costs,
disbursements and other expenses incurred in connection with
negotiations of leases with tenants of the Property or
disbursements or litigation with any such parties.
5. Costs or expenses relating to another tenant's or occupant's
space which were incurred in rendering any service or benefit to
such tenant or occupant that landlord was not required to
provide, or were for a service or benefit in excess of the
service or benefit that Landlord is required to provide Tenant
hereunder.
6. Income, excess profits or franchise taxes, inheritance taxes,
transfer taxes and fees or other such taxes imposed on or
measured by the income of Landlord from the operation of the
Property.
7. The cost, of repairing or restoring the property, or any part
thereof, that may be damaged or destroyed by any casualty or
affected by condemnation awards are recovered or are adequate for
such purpose.
8. All costs, concessions (including, without limitation rent
abatement and construction allowances) and expenses incurred in
leasing or procuring new tenants or retaining old tenants,
including, without limitation, advertising, printing supplies and
promotional expenses, leasing commissions and expenses for
preparation of leases or renovating space for new or old tenants,
or in enforcing the terms of any lease of space in the Property
or in connection with any change in the name of the Property.
9. The cost of all the items, goods and services, including
utilities sold and supplied to tenants and the occupants of the
Property, for which Tenant, occupant, or other third party,
including insurers, directly reimburses Landlord.
10. The cost of installing, operating and maintaining any specialty
service, such as but not limited to, an observatory, broadcasting
facility, satellite dish antennae, luncheon club retail store,
sundry shop newsstand, car wash, concession, athletic or
recreational club.
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
31
11. Any Payment of or an account of fee (s) paid to any person or
entity in connection with the termination of any management
person, entity, consultant or third party retained to provide
services to the Property.
12. Any costs or expenses incurred in connection with the sale,
financing, refinancing, mortgaging, syndicating or change of
ownership of the Property or any other part thereof, including
without limitation, brokerage commissions, attorneys and
accountant's fees, closing costs, title insurance premiums,
appraisals, marketing studies, transfer taxes, "points" and
interest charges.
13. Any insurance premium to the extent that the Landlord is entitled
to be reimbursed therefore by any other tenant of the Property
other than as a part of the Operating Expenses.
14. Any amount paid as a penalty as a result of a willful violation
of Law by Landlord or resulting from the negligence or the
willful misconduct of any tenant of the Property.
15. All Liabilities, damages, awards and judgments for injury or
death to persons and for property damage rising from the
ownership or operation of the Property, and all court costs,
attorney's fee's, paralegal fee's, expert witness fees and
disbursements incurred in connection therewith.
16. The cost of any items for which Landlord is reimbursed by
insurance or which is otherwise recovered from third parties,
however nothing herein shall be construed to exclude from
Operating Expenses any funds expended to cover the reasonable
deductible under any policy of insurance maintained in connection
with the Property.
17. Any cost or expense otherwise constituting an Operating Expense,
except for management fees provided for in Section 19.4 of the
Lease which is paid to any related party or affiliate of Landlord
or any general partner of Landlord and which is in excess of what
is reasonable for comparable service from an independent party of
comparable experience and skill.
18. Any payment made pursuant to a lease or similar arrangement
relating to any asset or other item, excluding replacement items,
the cost of which if the same were purchased, would be
depreciated or amortized as capital expenditure in accordance
with generally accepted accounting principals,
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32
wheresuch lease or other arrangement is essentially a financed
purchase of such asset or item.
19. Charitable and political contributions of Landlord.
20. Salaries, wages, and other compensations paid (directly or
indirectly) to partners, officers, directors, shareholders, or
other owners, or principals of Landlord and executives of
Landlords or those of its affiliates not principally engaged in
performing services at the Property.
Tenant shall not be required to pay for any reserves as set forth in item
19.4(g) in the foregoing paragraph at any time when the reserve is equal to or
greater than an amount equal to ten percent (10%) of the total Base Annual Rent
received from the Property. Should the reserves fall below ten (10%0 percent of
the total Base Annual Rent, then Landlord may collect additional reserves.
19.5 NO WAIVER. Failure of Landlord to furnish a statement of actual
Operating Expenses or to give notice under Subsection 19.2 or 19.3 in a timely
manner shall not prejudice or act as a waiver of Landlord's right to furnish
such statement or give such notice at a subsequent time or to collect any
adjustments for any preceding period. Not more frequently than once each Lease
Year, Tenant shall be entitled to have an audit of the Operating Expenses
performed, and if any discrepancy shall be revealed, appropriate adjustments
shall be made between Landlord and Tenant.
SECTION 20 - PEACEFUL ENJOYMENT.
--------------------------------
Tenant shall, and may peacefully enjoy the Premises against all persons
claiming by, through or under Landlord, subject to the other terms hereof,
provided that Tenant pays the rent and other sums herein required to be paid by
the Tenant and performs all of Tenant's covenants and agreements in this Lease.
SECTION 21 - HOLDING OVER.
--------------------------
If Tenant holds over without Landlord's written consent after expiration or
other termination of this Lease, or if Tenant continues to occupy the Premises
after termination of Tenant's right of possession pursuant to the provisions of
Subsection 18.2, Tenant shall be deemed to be a trespasser, and shall be liable
to Landlord for damages for such holdover throughout the entire hold-over
period, equal to double the Base Rent which would have been payable had the term
of this Lease continued through the period of such holding over by the Tenant.
No possession of the Premises by Tenant after this Lease shall have expired or
been terminated shall be construed to extend the term of this Lease unless
Landlord has consented to such possession in writing.
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33
SECTION 22 - SUBORDINATION, ATTORNMENT, AND TENANT ESTOPPEL.
------------------------------------------------------------
22.1 SUBORDINATION. This Lease is and shall continue to be subject and
subordinate to any first mortgage, whether presently existing or hereafter
arising upon the Property or Premises, and to any renewals, modifications,
refinancing or extensions thereof. This clause shall be self-operative, and no
further instrument of subordination shall be required; however, at any time and
from time to time Tenant shall execute any instrument subordinating this Lease
and agreeing to attorn to the holder of any such first mortgage, as Landlord
shall require, provided however that Tenant's obligation shall be contingent
upon said lender granting Tenant a non-disturbance agreement is a standard
commercially reasonable form. The failure of Tenant to provide the complete and
executed instrument of subordination described herein within ten (10) days after
request by Landlord therefore shall constitute an Event of Default. In the event
a mortgage encumbers the Property or the Premises on or before the Commencement
Date, Landlord shall provide to Tenant a subordination, non-disturbance and
attornment agreement on the part of the lender in a commercially reasonable
form.
22.2 LANDLORD ATTORNEY-IN-FACT. If Tenant should fail to execute any
subordination or other agreement required by this Subsection promptly as
requested, Tenant hereby irrevocably constitutes Landlord as its
attorney-in-fact to execute such instrument in Tenant's name, place and stead,
it being agreed that such power is one coupled with an interest, but the
execution of such instrument by Landlord shall not waive the breach of this
Lease occasioned by Tenant's failure to provide such an instrument.
22.3 ESTOPPEL LETTER. Tenant agrees that it will from time to time, upon
request by Landlord, execute and deliver to such persons as Landlord shall
designate 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 same is in full force and effect as so modified), stating the dates to
which rent and other charges payable under this Lease have been paid, stating
that Landlord is not in default hereunder (or if Tenant alleges a default,
stating the nature of such alleged default), stating the amount of any security
deposit or advance rent held by Landlord under this Lease, providing that Tenant
shall be estopped to deny any matter set forth in said statement, and further
stating such other matters as Landlord, or such persons as Landlord shall
designate, shall reasonably require. The failure of Tenant to provide the
complete and executed statement described herein within ten (10) days after
request by Landlord therefore shall constitute an Event of Default.
22.4 ATTORNMENT. Tenant shall, in the event of the sale or assignment of
all Landlord's interest in the Property or Premises, or in the event that any
proceedings shall be brought for the foreclosure of any mortgage made by
Landlord covering the Property or the Premises, attorn to the purchaser and
recognize the purchaser as Landlord under this Lease.
22.5 FINANCIAL INFORMATION. Tenant agrees that it will from time to time,
upon request by Landlord, provide Landlord financial statements and such other
documents and information, in such
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
34
form as Landlord shall direct, as Landlord shall require as to Tenant's
financial condition, and such statements and other documents and information
shall be certified to be correct by an officer of Tenant. Landlord agrees to
keep all such information confidential, and to use its best efforts to prevent
the disclosure of same to competitors of Tenant; provided, however, that Tenant
expressly authorizes Landlord to disclose all such information to any
prospective purchaser of the Property or the Premises, and to any prospective
lender of Landlord whose loan would be secured by an assignment of Landlord's
interest in this Lease, the rents hereunder, the Property, the Premises, or all,
or any combination, of the above. Tenant agrees to provide such financial
statements and other documents and information to Landlord within ten (10) days
after Landlord's request therefore.
SECTION 23 - LANDLORD'S LIEN.
-----------------------------
23.1 GRANT OF LIEN. Tenant hereby grants to Landlord a lien and security
interest on all property of Tenant now or hereafter placed in or upon the
Premises, and such property shall be and remain subject to such lien and
security interest of Landlord for payment of all rent and other sums agreed to
be paid by Tenant herein. Notwithstanding the foregoing, the Landlord agrees
that its lien shall be subordinate to the lien from any lending institution,
supplier, or leasing company, if the security interest of such lending
institution, supplier or leasing company has its origin a commercially
reasonable arms-length transaction, whereby Tenant acquired such equipment,
furniture, or other tangible personal property. Upon written request by Tenant,
Landlord shall execute a subordination agreement, consistent with, and
confirming the foregoing.
23.2 SECURITY AGREEMENT. The provisions of this subsection relating to such
lien and security interest shall constitute a security agreement under and
subject to the Uniform Commercial Code of the State of Florida so that Landlord
shall have and may enforce a security interest on all property of Tenant now or
hereafter placed in or on the Premises, in addition to and cumulative of the
Landlord's liens and rights provided by law or by the other terms and provisions
of this Lease.
23.3 FINANCING STATEMENTS. Tenant agrees to execute as debtor such
financing statement or statements and such other documents as Landlord may now
or hereafter request in order to protect or further perfect Landlord's security
interest. Notwithstanding the above, Landlord shall neither sell nor withhold
Tenant's business records from Tenant.
SECTION 24 - ATTORNEYS' FEES.
-----------------------------
Tenant will pay upon demand, as additional rent in addition to the
rents and other sums agreed to be paid hereunder, all collection and court costs
incurred by Landlord, and Landlord's reasonable attorneys' fees incurred for the
collection of unpaid rents, or the enforcement, defense or interpretation of
Landlord's rights under this Lease. Such fees and costs shall be due and payable
to Landlord, if Landlord prevails in such litigation, at trial, on appeal, in
bankruptcy proceedings, and in post-judgment collection or enforcement
proceedings, including costs and attorneys fees incurred in
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
35
establishing and recovering costs and attorney's fees, whether in the main
action or in a separate action brought solely for recovery of such costs and
attorneys fees. Any judgment entered in any such suit, action, or proceedings
shall provide for the retention of jurisdiction for the award of all Landlord's
post-judgment costs and attorneys fees. Landlord shall also be entitled to
recover from Tenant reasonable attorney's fees and costs incurred incident to
the preparation or review of documents or materials in connection with any
proposed assignment and subletting by Tenant, any financing by Tenant, or any
modification or amendment to this Lease.
SECTION 25 - NO IMPLIED WAIVER.
-------------------------------
25.1 NO WAIVER. The failure of Landlord to insist at any time upon the
strict performance of any covenant or agreement or to exercise any option,
right, power or remedy contained in this Lease shall not be construed as a
waiver or a relinquishment thereof for the future.
25.2 PARTIAL PAYMENTS. No payment by Tenant or receipt by Landlord of a
lesser amount than the entire amount claimed by Landlord to be due under this
Lease shall be deemed to be other than a partial payment. No endorsement or
statement on any check or any letter accompanying any check or payment shall be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without waiving Landlord's right to collect the entire amount claimed to be due
and owing to Landlord, or pursue any other remedy provided in this Lease. No
acceptance of any payment of rent or other sum shall constitute a waiver by
Landlord of any other default or breach on the part of Tenant, or preclude
Landlord from exercising any rights it may have on account of such default or
breach.
SECTION 26 - PERSONAL LIABILITY OF LANDLORD.
--------------------------------------------
The liability of Landlord to Tenant for any default by Landlord under
this Lease shall be limited to the interest of Landlord in the Premises, and
Tenant agrees to look solely to Landlord's interest in the Premises (or the
proceeds thereof) for the recovery of any judgment from the Landlord, it being
intended that Landlord shall not be personally liable for any judgment or
deficiency.
SECTION 27 - SECURITY DEPOSIT. INTENTIONALLY DELETED
----------------------------------------------------
SECTION 28 - FORCE MAJEURE.
---------------------------
Whenever a period of time is herein prescribed for the taking of any
action by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation of such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, governmental
laws, regulations or restrictions, lending institution requirements, or any
other cause whatsoever beyond the control of Landlord. Landlord shall not be
liable to Tenant, Tenant's employees, agents, customers, guests, licensees, or
invitees for any loss or damage to any
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
36
property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition, or order
of governmental body or authority or by any other cause beyond the control of
Landlord. Nor shall Landlord be liable for any damage or inconvenience, which
may arise through repair or alterations of any part of the Property or Premises.
SECTION 29 - RELATIONSHIP OF PARTIES.
-------------------------------------
Nothing contained in this Lease shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between Landlord and
Tenant, it being understood and agreed that neither the method of computation of
rent, nor any other provision contained herein, nor any acts of the parties
herein shall be deemed to create any relationship between the parties hereto
other than the relationship of Landlord and Tenant.
SECTION 30 - UTILITIES.
-----------------------
The Tenant shall, at its own cost and expense, pay all charges
(together with any applicable taxes or assessments thereon) for utilities
serving the Premises. Such utilities shall include, without limitation, as
applicable, water, gas, electricity, air conditioning, heat, sewer, refuse
collection, telephones, and any other utility charges or similar items in
connection with the use or occupancy of the Premises. If any utilities shall not
be separately metered to the Premises by the applicable utility, Tenant may be
billed monthly by Landlord for Tenant's share of such utility service, as
determined by Landlord, in addition to Tenant's monthly Operating Expenses
pursuant to Section 19 hereof. Payment shall be due and payable upon receipt of
the billing by Tenant.
SECTION 31 - MISCELLANEOUS.
---------------------------
31.1 SEVERABILITY. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease or the application of such
term or provision to the persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
31.2 RECORDATION. Tenant agrees not to record this Lease but Landlord may
record this Lease at its sole discretion. The parties shall execute a memorandum
of lease, which Landlord shall record in the Public Records of Orange County,
Florida. The memorandum shall identify the Premises, the parties and the term of
the Lease, and shall contain any notices relating to construction or mechanics'
lien law, as Landlord desires. Tenant waives the right to file a notice of lis
pendens against the Property, the Premises, and any interest therein or any part
thereof. The filing of a notice of lis pendens by or on behalf of Tenant shall
be an event of default by Tenant, for which no notice or opportunity to cure
shall be provided, notwithstanding any contrary provision of this Lease.
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
37
31.3 GOVERNING LAW. This Lease and the rights and obligations of the
parties hereto are governed by the laws of the State of Florida.
31.4 TIME OF PERFORMANCE. Except as expressly otherwise herein provided,
time is of the essence of this Lease.
31.5 TRANSFERS BY LANDLORD. Landlord shall have the right to transfer and
assign, in whole or in part, all its rights and obligations hereunder and in the
Property and the Premises referred to herein, and in such event and upon such
transfer, Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to such successor in interest of Landlord for the
performance of such obligations accruing after such transfer.
31.6 BROKER. Tenant represents that Tenant has not dealt with any real
estate broker, sales person, finder, or any other person who may be entitled, or
claim to be entitled to a commission in connection with this Lease, except the
Brokers identified in Subsection 1.4 hereof, and no such other person initiated
or participated in the negotiation of this Lease, or showed the Premises or
Property to Tenant. Tenant agrees to indemnify and hold harmless Landlord from
and against any liabilities and claims for commissions and fees arising out of a
breach of the foregoing representation.
31.7 EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered a copy of
this Lease to Tenant for Tenant's review only, and the delivery hereof does not
constitute an offer to Tenant or an option to lease. This Lease shall not be
effective unless and until a copy executed by both Landlord and Tenant is
delivered to and accepted by Landlord.
31.8 SECTION HEADINGS. The section or subsection headings are used for
convenience of reference only and do not define, limit or extend the scope or
intent of the paragraphs.
31.9 DEFINITIONS. The definitions set forth in Section 1 are hereby made
part of this Lease.
31.10 EXHIBITS. The following exhibits are attached hereto and incorporated
herein and made a part of this Lease for all purposes:
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
Exhibit "A" Property Legal Description
Exhibit "B" Preliminary Site Plan
Exhibit "C" Development Agreement
Exhibit "D" Work Schedule
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38
Exhibit "E" Timeshare Lease Agreement
Exhibit "F" Sign Schedule
Exhibit "G" Restricted Uses
Exhibit "H" Building Rules
Exhibit "I" Utilities
Exhibit "J" Pad
31.11 NOTICES. The Tenant shall pay the rent and shall forward all notices
to Landlord at 0000 Xxxxx Xxxxxxxxx., Xxxxx 000, Xxxxxxx, XX 00000, or at such
other place as Landlord may hereafter designate in writing. The Landlord shall
forward all notices to Tenant at the address of Tenant indicated on the first
page hereof. Any notice provided for in this Lease must, unless otherwise
expressly provided herein, be in writing, and may, unless otherwise expressly
provided, be given or be served by depositing the same in the United States
mail, postage pre-paid, registered or certified, and addressed to the party to
be notified, with return receipt requested, or by delivering the same, in person
or by Federal Express or other nationally recognized courier service, to such
address. Any notice to Tenant delivered to the Premises or other address
specified for the Tenant shall be complete when delivered to any agent or
employee of Tenant therein. Notice deposited in the mail in the manner
hereinabove indicated shall be effective upon receipt, unless such mail is
unclaimed, refused, rejected, or undeliverable due to a change of address, in
which event notice shall be effective five (5) days after the date of mailing.
Notice sent by Federal Express or other nationally recognized courier service in
the manner hereinabove indicated shall be effective upon receipt, unless such
notice is unclaimed, refused, rejected, or undeliverable due to a change of
address, in which event notice shall be effective on the date delivery is first
attempted, as set forth on the records of the courier service.
31.12 INTEREST. Interest at the highest contract rate allowable by law
shall accrue upon all sums due Landlord from Tenant, whether rent or otherwise,
from the date that each such sum shall be due and payable to Landlord until it
shall be paid in full.
31.13 APPLICATION OF PAYMENTS. Tenant waives the right to direct
application of payments due hereunder, and Landlord shall have the right to
apply any payment hereunder made to any sum then claimed by Landlord to be due
and owing by Tenant, whether Tenant shall have specifically directed the
application of such payment or not.
31.14 AUTHORITY OF REPRESENTATIVES. Tenant and the individuals signing this
Lease on its behalf represent to Landlord that the individual or individuals
executing this Lease is or are authorized to do so by the board of directors of
Tenant, if Tenant shall be a corporation, and by the partners or other governing
body or persons, if not a corporation, and that the execution and delivery of
this Lease is legal, valid, and binding upon Tenant.
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
39
31.15 NUMBER AND GENDER. Whenever used herein, the singular number shall
include the plural and the plural shall include the singular and the use of one
gender shall include all genders. Any individuals identified as Tenant herein
shall be jointly and severally liable for the performance by Tenant of all
Tenant's obligations hereunder, and any notice provided to one shall constitute
notice to all.
31.16 AMENDMENT AND ENTIRE AGREEMENT. The provisions of this Lease and the
attached Exhibits, constitute the entire agreement between Landlord and Tenant,
and supersede and revoke all prior agreements, representations, warranties,
negotiations, promises, covenants, agreements, assurances, understandings,
brochures, letters of intent, and information conveyed or provided, between or
among the parties concerning the Premises, the Property, or the obligations of
any party hereunder, whether oral or written ("Representations and Agreements").
There are no other Representations and Agreements which are not set forth herein
between the parties, or their respective representatives, or any other person,
including, without limitation, the Broker, if any, purporting to represent the
Landlord or the Tenant. The Tenant acknowledges that it has not been induced to
enter into this Lease by any Representations and Agreements not set forth in
this Lease, it has not relied upon any such Representations and Agreements, no
such Representations and Agreements shall be used in the interpretation or
construction of this Lease, and the Landlord shall have no liability for any
consequences arising as a result of any such Representations and Agreements.
This Lease may only be modified or amended by an agreement in writing executed
by the parties hereto.
31.17 DUPLICATE ORIGINALS. This Lease may be executed in duplicate, and
each such executed duplicate shall constitute an original.
31.18 LATE PAYMENTS AND RETURNED CHECKS. If any payment of rent or other
sums due hereunder from Tenant shall not be made to Landlord within five (5)
days of the due date fixed in this Lease, then for each such occurrence Tenant
shall pay to Landlord an additional sum equal to five percent (5%) of the late
payment. If any check, draft or money order presented by Tenant to Landlord in
payment of rent or other sums due hereunder shall not be honored and shall be
returned, whether for insufficient funds or otherwise, then for each such
occurrence Tenant shall pay to Landlord an additional sum equal to One Hundred
And No/100 Dollars ($100). The above amounts shall be payable in addition to all
other amounts which may be due by Tenant hereunder, and the Landlord's rights
thereto shall be in addition to all other remedies it may have hereunder. The
above amounts shall constitute agreed liquidated damages for Landlord for its
expense and inconvenience incurred by reason of such late payments or returned
checks, the amounts of which may be impossible to determine with specificity,
and shall not be a penalty.
31.19 RIGHT TO DEDICATE TO OR VACATE CONDOMINIUM. Landlord, and any other
owner of the Property, shall have the right to dedicate all or part of the
Property, including the Premises, to condominium ownership, or to impose
restrictive covenants upon all or part of the Property, or to
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
40
vacate any declaration of condominium, or restrictive covenants affecting the
Property. Tenant's right in and to the Premises and the Property shall
automatically be subordinate to any dedication of condominium or declaration of
restrictive covenants now or hereafter imposed by Landlord or such owners,
provided that nothing therein shall prohibit the use of the Premises for its
Permitted Use for so long as Tenant shall not be in default hereunder. Tenant
agrees that the execution hereof shall be its written subordination agreement or
consent to vacation; however, Tenant further agrees that it shall execute a
separate written subordination agreement or consent to vacation evidencing the
agreements of this subsection within five (5) days after written demand by
Landlord.
31.20 SHOPPING CENTER LEASE. This is a Lease of real property in a
"Shopping Center" within the meaning of Section 365 (b) (3) of the Bankruptcy
Code, 11 USC Section 365 (b) (3).
31.21 CONSTRUCTION. Landlord and Tenant agree that the terms hereof were
negotiated by and between the parties, that both parties may be viewed as the
drafters of this Lease, and that ambiguities shall not be construed against
either party as the drafter.
31.22 WAIVER OF JURY TRIAL. Landlord and Tenant hereby mutually waive any
and all rights which any one of them may have to request a jury trial in any
proceeding at law or in equity in any court of competent jurisdiction relating
to, or arising out of, or in connection with any rights or obligations created
under the terms of this Lease Agreement or the relationship between Landlord and
Tenant created hereunder and by operation of law.
31.23 ADDENDA. One or more Addenda may be attached hereto, and if executed
and attached to this Lease, shall supersede and control any conflicting
provisions of this Lease.
SECTION 32 [DELETED INTENTIONALLY]
SECTION 33 - RENEWAL.
---------------------
Provided that the Tenant shall not be in default in any of the terms,
covenants and conditions of this Lease, Landlord agrees that Tenant shall have
the right and option to renew the term of this Lease for the Renewal Terms. The
first such renewal term, if exercised, shall commence upon the expiration of the
Lease Term. Each subsequent Renewal Term, if exercised, shall commence upon the
expiration of the preceding Renewal Term. In order to exercise the option to
renew the term of this Lease for the first Renewal Term, Tenant must give
Landlord written notice of its intention to do so not less than one hundred
eighty (180) days prior to the expiration of the Lease Term. In order to
exercise each subsequent Renewal Term option, Tenant must have first exercised
each prior option to renew and, in addition, must give Landlord written notice
of its intention to exercise such subsequent Renewal Term option not less than
one hundred eighty (180) days prior to the expiration of the preceding Renewal
Term. In the event that Tenant fails to deliver said written notice of renewal
to the Landlord, as specified hereinabove, then the option granted Tenant
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
41
hereunder to renew this Lease shall terminate and be null and void and this
Lease shall terminate on the last day of the Lease Term, or on the last day of
the last properly exercised Renewal Term, whichever shall be applicable. In
interpreting the Lease Agreement during any Renewal Term as to which the Tenant
shall have properly exercised its renewal option, those provisions of the Lease
Agreement which make reference to the Lease Term shall be interpreted, where the
context shall so permit, to mean and include the Renewal Term as to which such
renewal option shall have been exercised, provided that under no circumstances
shall this be construed to provide Tenant more than the number of Renewal Terms
set forth in Subsection 1.20 hereof. During each Renewal Term the rights of
Landlord and Tenant shall be governed by the terms and conditions of this Lease
Agreement, and during the Renewal Terms the Base Rent specified in Subsection
1.3 of the Lease Agreement, and Percentage Rent shall continue to be due to
Landlord as provided in Subsection 5.7 of the Lease Agreement.
[LANDLORD'S INITIALS ______] [TENANT'S INITIALS ______]
42
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts as of the day and year first above written.
"LANDLORD"
SIGNED, SEALED AND DELIVERED E.D.I. II INVESTMENTS, INC., A FLORIDA
IN THE PRESENCE OF: CORPORATION
___________________________________ BY:_________________________________
(_________________________________) XXXXXXXX XXXX
PRINT NAME BELOW SIGNATURE AS ITS: VICE PRESIDENT
___________________________________
(_________________________________)
PRINT NAME BELOW SIGNATURE
"TENANT"
FAMILY STEAK HOUSES OF FLORIDA, INC.,
A FLORIDA CORPORATION, D/B/A RYAN'S
GRILL, BUFFET & BAKERY
__________________________________ BY:_________________________________
(_________________________________) XXXXXX X. XXXXXXXXX
PRINT NAME BELOW SIGNATURE AS ITS: CHIEF FINANCIAL OFFICER
___________________________________
(_________________________________)
PRINT NAME BELOW SIGNATURE
43
LEGAL DESCRIPTION
-----------------
Lots 4 and 5, Florida Center Unit 21, as recorded in Plat book 7, Page 82 of the
Public Records of Orange County, Florida, less the Northerly 8 feet for Road
right-of-Way of International Drive.
EXHIBIT "A"
44
