INDEX TO BUSINESS LEASE
PROPERTY: 2200 BUILDING
LANDLORD: XXXXXX XXXXXXXXX
2200 N.W. 2nd Avenue
Boca Raton, FL
TENANT: CLASSIC RESTAURANTS INTERNATIONAL, INC.
0000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
ARTICLE I -DEFINITION 2
ARTICLE II -EXHIBITS 3
ARTICLE III -PREMISES 3
ARTICLE IV -COMMON AREAS 4
ARTICLE V -IMPROVEMENTS 4
ARTICLE VI -PLANS 6
ARTICLE VII -USE 6
ARTICLE VIII -TERM 7
ARTICLE IX -RENTAL COMMENCEMENT DATE 8
ARTICLE X -RENTAL 9
ARTICLE XI -SECURITY DEPOSIT 9
ARTICLE XII -ADDITIONAL RENT 10
ARTICLE XIII -SIGNS 11
ARTICLE XIV -REPAIRS AND ALTERATIONS 12
ARTICLE XV -LIENS 13
ARTICLE XVI -INDEMNITY AND INSURANCE 14
ARTICLE XVII -GENERAL RULES AND REGULATIONS 17
ARTICLE XVIII -SUBORDINATION AND ATTORNMENT
BY TENANT 18
ARTICLE XIX -RIGHTS OF LANDLORD 19
ARTICLE XX -ASSIGNMENT AND SUBLETTING 20
ARTICLE XXI -DAMAGE OR DESTRUCTION 21
ARTICLE XXII -CONDEMNATION 22
ARTICLE XXIII -DEFAULT 24
ARTICLE XXIV -NOTICES 26
ARTICLE XXV -MISCELLANEOUS 26
EXHIBIT "A" -RADON 33
EXHIBIT "B" -GUARANTY 34
ADDENDUM "A" -OPTION TO PURCHASE 35
ADDENDUM "B" -OPTION TO RENEW 36
1
LEASE
THIS INDENTURE OF LEASE MADE AND ENTERED INTO AT Palm
Beach, Florida, this 7TH day of OCTOBER, 1992, by and between
XXXXXX XXXXXXXXX, hereinafter called "LANDLORD", and CLASSIC
RESTAURANTS INTERNATIONAL, INC., a Florida corporation,
hereinafter called "TENANT", whose mailing address is: 0000 XXXXX
XXXXXX XXXXX XXXXXXXXX, XXXXX 000, XXXXX XXXXX, XX 00000.
W I T N E S S E T H
Section 1.1 - DEFINED TERMS
Wherever used in this Lease, the following terms shall
be construed to mean as follows:
(a) "PROPERTY" shall mean those buildings, land and
common areas which are owned by the landlord and known as the
2200 Property located at 0000 X.X. 2nd Avenue, Boca Raton,
Florida, consisting of a two story multi use facility.
(b) "PREMISES" shall mean the entire first floor of the
building.
(c) "COMMON AREAS" shall mean all that vacant, landscape
or improved area in said Property provided for by the Landlord
for the common or joint use and benefit of the tenants and
occupants of the Property, their employees, agents, servants,
customers, and other invitees, including without limitation, the
parking areas, driveways, aisles, sidewalks, loading docks,
passageways, stairs, ramp, and other common service areas subject
to the conditions hereinafter set forth.
(d) "LEASE YEAR" as used herein shall mean each
consecutive twelve-month period beginning with the 1ST day of
DECEMBER, 1992, and each anniversary date thereof. The First
Lease Year shall also include any period of time for which Tenant
is obligated to pay rent between the Rental Commencement Date and
the commencement date of the Term. Said period of time shall be
known as the "FIRST PARTIAL LEASE YEAR."
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ARTICLE II
EXHIBITS
Section 2.1 - EXHIBITS
The following exhibits are attached hereto and made a
part of this Lease:
EXHIBIT "A" - RADON GAS
EXHIBIT "B" - GUARANTY
ADDENDUM "A" - OPTION TO PURCHASE
ADDENDUM "B" - OPTION TO RENEW [check mark]
ARTICLE III
PREMISES
Section 3.1 - PREMISES
In consideration of the payment of all Rentals and the
performance of the covenants as hereinafter set forth, the
Landlord demises unto Tenant, and Tenant leases form Landlord,
subject to all conditions, easements and encumbrances of record,
for the Term and upon the terms and conditions set forth in this
Lease, the Premises described as follows:
(a) Address 0000 X.X. 2ND AVENUE, BOCA RATON, FLORIDA
(b) The entire first floor of the building containing
approximately 8,500 square feet plus Patio area of approximately [check mark]
2,000 square feet.
Section 3.2 - LANDLORD'S RESERVATION
Landlord reserves to itself the roof and exterior walls
of the building containing the Premises and of the Premises, and
reserves the right to place, maintain, repair and replace utility
lines, pipes, ducts, conduits, wires and tunneling and the like
in, over, under and through the Premises as are reasonably
necessary or advisable for the servicing of the Premises or of
other portions of the Property development in locations which
will not materially interfere with Tenant's use of its Premises.
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ARTICLE IV
COMMON AREAS
Section 4.1 - USE COMMON AREAS
(a) Landlord grants to Tenant and its agents, employees
and customers, a non-exclusive licence to use the common areas in
common with other tenants, their agents, employees and customers
during the Term of this Lease and any renewal period thereof,
subject to the exclusive control and management thereof at all
times by Landlord and subject further to the rights of Landlord
as set forth in Section 4.2 herein.
(b) No tenant, organization, individual, or any other
entity shall use the Common Areas for any other purpose than
herein designated, nor shall anyone have the right to authorize
the use of any of the Common Areas except the Landlord herein.
Section 4.2 - MANAGEMENT AND OPERATION OF COMMON AREAS
(a) Landlord will operate and maintain or will cause to
be operated and maintained, the Common Areas in a manner deemed
by Landlord to be reasonable and appropriate and in the best
interest of the Property. Landlord will have the right to (1)
establish, modify and enforce reasonable and uniform rules and
regulations with respect to the Common Areas; (2) to enter into,
modify and terminate easements and other agreements pertaining to
the use and maintenance of the parking areas and other Common
Areas; (3) to provide for employee parking and formulate rules
and regulations for the same; (4) to close all or any portion of
said parking areas or other Common Areas to such extent as may in
the opinion of the Landlord be necessary to prevent a dedication
thereof or the accrual of any right to any person or to the
public thereof; (5) to close temporarily any or all portions of
the Common Areas for repair or refurbishing; (6) to discourage
non-customer parking; (7) to do such other acts in and to said
areas and improvements as in the exercise of good business
management, Landlord shall deem to be advisable.
(b) All expenses in connection with the said maintenance
and operation of the Common Areas shall be charged to and paid
for by the Landlord.
ARTICLE V
IMPROVEMENTS
Section 5.1 - TENANT'S IMPROVEMENT
(a) Tenant shall at its own expense:
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(i) Construct the remainder of said Premises
and installations therein as shown in Tenant's Plan and/or
Specifications as approved by the Landlord, or Landlord's
Architect. Any installation to be made or work to be performed by
the Tenant on or for the Premises shall be first approved in
writing by the Landlord prior to commencement of any work by
Xxxxxx.
(ii) Secure all permits and licenses necessary
for the construction of any its installations and the prosecution
of its work, and Tenant shall comply with all laws and
regulations relating to the conduct of said work. However, in the
event that it is necessary for the Landlord to secure such [check mark]
building or remodeling permits, Landlord shall do the same with [marking]
all costs to be borne by Tenant.
(iii) Provide and pay for all water, sewer,
electricity, heat and other utility used by Tenant or its agents
for construction work on its Premises.
(iv) From the commencement of construction to
the termination thereof, Tenant shall obtain on behalf of itself,
or any of its contractors or subcontractors, all necessary
insurance protection including, but not limited to, Builder's
Risk Insurance in an amount equal to the contract price of
Tenant's improvements, Workmen's Compensation, as required by
State statute, Employers Liability Insurance, in the amount of
$100,000.00, or any other employee benefit insurance required by
State or Federal law. The Landlord shall be named a party
beneficiary in any of said policies.
(v) All materials, equipment and appliances
used in construction and all trade fixtures installed shall be
new and first quality items.
Section 5.2 - TENANT'S TRADE FIXTURES
All trade fixtures, signs and apparatus (as
distinguished from leasehold improvements) owned by tenants and
installed in the Premises shall remain the property of Tenant and
shall be removable at any time, including upon the expiration of
the term; provided Tenant shall not at such time be in default of
any terms or covenants of this Lease; and provided further that
Tenant shall repair any damage to the Premises caused by the
removal of said fixtures. If Tenant is in default, Landlord shall
have the benefit of any applicable lien on Tenant's property
located in or on the Premises as may be permitted under the laws
of Florida, and in the event such lien is asserted by Landlord in
any manner or by operation of law, Tenant shall not remove or
permit the removal of said property until the lien has been
removed and all defaults have been cured.Any of Tenant's property
not removed by Tenant may be
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construed by Landlord as abandoned by Tenant or Landlord may
order Tenant to remove said items or have the same removed at
Xxxxxx's expense.
Section 5.3 - CONSTRUCTION LIEN
Nothing in this Lease contained shall be deemed or
construed in any way as constituting the consent or request of
Landlord, express or implied by interference or otherwise, to any
contractor, subcontractor, laborer or materialman for the
specific performance of any labor or the furnishing of any
materials or equipment for any specific improvement, alteration
to or repair of the Premises or any part thereof, nor as giving
Tenant any right, power or authority to contract for or permit
the rendering of any services or the furnishing of any materials
on behalf of the Landlord that would give arise to the filing of
any lien against the Premises or the Property.
ARTICLE VI
SUBMISSION OF PLANS
Tenant shall prepare, at its sole cost and expense,
complete plans and specifications for all of Tenant's work and
shall submit such Plans and Specification to Landlord or
Landlord's designated representative for approval prior to
commencement of any work.
ARTICLE VII
USE
Section 7.1 - USE
Tenant shall use and occupy the Premises solely for
restaurant, lounge, supper club, and\or dinner theater.
Section 7.2 - PROHIBITIONS ON USE
(a) Tenant shall not use or permit or suffer the
Premises, or any part thereof, to be used by anyone else or for
any other business or purpose than that specifically defined and
permitted by this Section.
(b) Tenant shall not permit the Premises to be used in
any way which will injure the reputation of, be a nuisance,
annoyance, or do damage to, the other tenants of the Property or
the Landlord, including, without limitation, the sale of material
and merchandise objectional to Landlord and the use of audio
devices, machinery and equipment creating noise or the committing
of acts which will disturb, impair or interfere with the use and
enjoyment of the other tenants of their respective Premises
within the Property.
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(c) Xxxxxx agrees not to use or allow said Premises to
be used for any auction, fire, bankruptcy or "going out of
business" sales therein.
(d) Tenant shall not use the Premises in violation of
any State law, County or City Ordinances.
Section 7.3 - HOURS OF OPERATION
Tenant will operate the business during the normal hours
of Dinner Theater operation in accordance with City, County, and [check mark]
State laws governing such operation. The business will operate at
least five days each week based on seasonal trends.
Section 7.4 - MANNER OF OPERATION OF BUSINESS
(a) Xxxxxx agrees that the above business is to be
conducted in a reputable manner, in keeping with good practices
as established in the trade. Tenant shall keep upon said Premises
an adequate staff of employees and a full and complete stock of
merchandise during business hours throughout the Term of this
Lease so as to insure a maximum volume of business in and from
its Premises.
(b) Xxxxxx agrees to assume full responsibility at its
own cost to keep and maintain the Premises neat, clean, in proper
repair and decor, and free from waste and offensive odors, and in
an orderly and sanitary condition, free of vermin, rodents, bugs
and other pests. Tenant shall daily insure that the parking lot
and common areas are free of trash and\or debris CAUSED BY [check mark]
TENANT'S CUSTOMERS at Tenant's expense. If Tenant fails to
properly maintain the parking lot, Landlord shall have the right
to engage said service as is reasonably required to insure
compliance with the cost to be reimbursed by Xxxxxx as Additional
Rent.
ARTICLE VIII
TERM
Section 8.1 - TERM
The Term of this lease shall be for a period of FIVE (5)
years, commencing on DECEMBER 1, 1992, and expiring on NOVEMBER [check mark]
31, 1997.
Section 8.2 - HOLDING OVER
If, at the expiration of the Term of this Lease or any
renewal thereof, Tenant continues to occupy the Premises with or
without the Landlord's consent, the tenancy under this Lease
shall become month-to-month terminable by either party on thirty
(30) days written notice. The Tenant shall be subject to all the
conditions
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of the previous Lease excepting the Term thereof, and shall be
further subject to any changes which Landlord has given Tenant,
in writing, during any thirty (30) day period for the following
thirty (30) day period.
Section 8.3 - TERMINATION
(a) This Lease shall terminate at the end of the Term
without the necessity of any notice from either Landlord or
Tenant to terminate the same, and Tenant hereby waives notice to
vacate or quit the Premises and agrees that Landlord shall be
entitled to the benefit of all provisions under this Lease
respecting the summary recovery of possession of the Premises
from a tenant holding over to the same extent as if statutory
notice has been given.
(b) For the period of three (3) months prior to the
Term, Landlord shall have the right to display on the exterior of
the Premises the customary sign "For Rent" and during such
period, Landlord may show the Premises and all parts thereof to
prospective Tenants during normal business hours.
(c) Xxxxxx shall deliver and surrender to Landlord
possession of the Premises upon the expiration of this Lease or
its termination in any way, in as good condition and repair as
the same shall be at the commencement of said Lease, except
ordinary wear and tear and casualty loss covered by insurance
proceeds.
(d) The Tenant shall have no right to quit the Premises,
cease to operate its business, cancel or terminate this Lease
except as said right is expressly granted to the Tenant herein.
(e) This Lease shall terminate in the event that the
business operated by Tenant shall be closed for a period of [check mark]
sixteen (16) consecutive days, whereupon such continuous closing
shall be deemed an abandonment of the Premises.
ARTICLE IX
RENTAL COMMENCEMENT DATE
Section 9.1 - COMMENCEMENT DATE
(a) The date upon which the Tenant shall be obligated to
commence the payment of rent and all additional charges shall be
known as the "Rental Commencement Date" and such "Rental
Commencement Date" shall be November 15, 1992.
(b) Should Tenant's obligation to pay rent commence on a
day other than the first day of a calendar month, the Rental
Commencement Date for the purpose of this Section shall be the
first day of the calendar month next following and the Tenant
shall be liable for rent and all other charges due for said
previous
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partial month on a Per Diem basis. Payment of said rent and
charges shall be due and payable on the Rental Commencement Date.
ARTICLE X
RENTAL
Section 10.1 - FIXED RENT
(a) Tenant hereby covenants and agrees to pay to the
Landlord, without deduction or set-off and without demand, at its
office or such other place as Landlord may, from time to time,
designate, as Fixed Rent for the Premises, the sum of $ 84,000.00
per annum, payable in equal monthly installments of $ 7,000.00
(plus 1\24th of the Real Estate Taxes, 1\2 of the electricity,
1\2 of Waste Disposal, and 1\2 of water as hereinafter set
forth).
(b) A late charge of ten (10%) of the payment due will
be payable by Tenant on all payments received later that ten (10)
days after the payment is due. [check mark]
(c) Should any government taxing authority acting under
any present or future law, ordinance, or regulation, levy,
assess, or impose a tax excise and/or assessment (other than an
income or franchise tax) upon the Tenant for rentals payable by
Tenant to Landlord, either by way of substitution for or in
addition to any existing tax on land and buildings or otherwise,
Tenant shall be responsible for and shall pay such tax, excise
and/or assessment, or shall reimburse the Landlord for the amount
thereof, as the case may be. In addition, Tenant shall pay any
tax now or hereafter levied on said rent such as the presently
existing sales tax.
(d) The Landlord by execution hereof, hereby
acknowledges the receipt of the sum of Twenty Thousand Three
Hundred Two and 60\100 Dollars ($20,302.60) plus the sum of Seven
Thousand and no\100 Dollars ($7,000.00) as set forth for the
Security Deposit in Section 11.1 below which represents the first
and last months' rents along with the rent for the period of
November 15, 1992 to November 30, 1992 together with one and one
half (1 1\2) months of real estate taxes ($1,752.60).
ARTICLE XI
SECURITY DEPOSIT
Section 11.1 - DEPOSIT
Tenant, concurrently with the execution of this Lease,
has deposited with Landlord the sum of $7,000.00 receipt of which
is hereby acknowledged by the Landlord, as a "Security Deposit".
Said deposit shall be held by Landlord without liability for
interest
9
as security for the faithful performance by Tenant of all the
terms of this Lease.
Section 11.2 - USE AND RETURN OF DEPOSIT
If any of the rents herein reserved or any other sum
payable by Tenant to Landlord shall be overdue and unpaid or
should Landlord make payment on behalf of the Tenant or Tenant
shall fail to perform any of the terms of this Lease, then
Landlord may, at its option and without prejudice to any other
remedy which Landlord may have on account thereof, appropriate
and apply said entire deposit or so much thereof as may be
necessary to compensate Landlord toward the payment of Fixed Rent
or loss or damage sustained by Landlord due to such breach on the
part of Tenant and Tenant shall forthwith upon demand restore
said security to the original sum deposited. Should Tenant comply
with all of said terms and promptly pay all of the rentals as
they fall due and all other sums payable by Tenant to Landlord,
said deposit shall be returned in full to Tenant at the end of
the Term.
Section 11-3 - BANKRUPTCY
In the event of Bankruptcy or other debtor-creditor
proceedings against Tenant such security deposit shall be deemed
to be applied first to the payment of rent and other charges due
Landlord for all periods prior to filling of such proceedings.
Section 11.4 - TRANSFER OF DEPOSIT
Landlord may deliver the funds deposited hereunto by
Xxxxxx to the purchaser of Landlord's interest in the Premises in
the event that such interest be sold and thereupon shall be
discharged from any further liability with respect to such
deposit. This provision shall also apply to any subsequent
transferees.
ARTICLE XII
ADDITIONAL RENT
Section 12.1 - STATUS OF CHARGES
In addition to all rentals provided for by this Lease,
the Tenant agrees to pay to Landlord as hereinafter provided, the
additional charges as described in this Section for the purposes
as hereinafter set forth and shall be subject to all provisions
of this Lease and of law as to default in the payment of rent.
Section 12.2 - UTILITIES AND OTHER OPERATING CHARGES
(a) Tenant shall pay one half of the electricity, water,
trash removal and one hundred percent (100%) of any additional
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trash pickups on a monthly basis. Landlord shall invoice Tenant
for such sums. [check mark]
Section 12.3 - DAMAGES
The Landlord shall not be liable to Tenant in damages or
otherwise if any one or more of said utility services or
obligations hereunder is interrupted or terminated because of
necessary repairs, installations, construction and expansion, [check mark]
[notation]5.1 or by reason of governmental regulation, statute,
ordinance, restriction or decree, or any other cause beyond
Landlord's reasonable control. No such interruption or
termination of utility service shall relieve Tenant from any of
its obligations under this Lease.
Section 12.4 - REAL ESTATE TAXES
(a) For each Calendar Year or part thereof, during the
Term of this Lease, or any renewal term thereof, Tenant shall pay
to Landlord one half (1\2) of the real estate taxes and
assessments levied and assessed for any such calendar year upon
the, building, and all other improvements (Real Estate Taxes) of
the Property as previously defined. Such payments shall be made
monthly representing 1\24th of the existing Real Estate Taxes
assessed.
(b) Within forty-five (45) days after the end of each
Calendar Year, the Landlord shall furnish Tenant with a written
statement of the actual amount of said Real Estate Taxes and of
Tenant's proportionate share thereof for the preceding Calendar
Year. Landlord shall, upon request of Xxxxxx, furnish to Tenant a
copy of the Real Estate Tax bill upon which such statement is
based. Within fifteen (15) days after receipt of said statement
by the Tenant, the Tenant shall pay to the Landlord any
deficiency due the Landlord.
ARTICLE XIII
SIGNS
Section 13.1 - TENANT'S OBLIGATIONS
Tenant shall only erect such signs that have been
reasonably approved by the Landlord and shall satisfy the
requirements of all governmental authorities. Said signs shall be
maintained in good condition by the Tenant. Tenant shall obtain
all permits and licenses for its sign. Tenant shall not exhibit
or affix any other type of sign, decal, advertisement, notice,
other writing, awning, antenna or other projection to or on the
roof or the outside walls or windows of the Premises or the
building of which the Premises are a part, without Landlord's
written approval.
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ARTICLE XIV
REPAIRS AND ALTERATIONS
Section 14.1 - REPAIRS BY LANDLORD
(a) Landlord shall keep the roof, structural portions,
the exterior of the Premises, parking lot and other Common Areas,
in good and tenable condition and repair during the Term of this
Lease. However, if the need for such repair is directly or
indirectly attributable to or results from the Tenant or its
agents operation or acts, or is Tenant's responsibility, then, in
such case, Tenant does hereby agree to and shall reimburse
Landlord for all costs and expenses incurred by Landlord in
respect to such repairs.
(b) As used in this Section, the expression "structural
portion and exteriors of the Premises" shall not be deemed to
include store front or store fronts, plate glass, window cases or
window frames, doors or door frames. It is understood and agreed
that Landlord shall be under no obligation to make any repairs,
alterations, renewals, replacements or improvements to and upon
the Premises or the mechanical equipment exclusively serving the
Premises at any time except as this Lease expressly provides.
(c) Landlord shall not in any way be liable to Tenant
for failure to make repairs as herein specifically required of
Landlord unless Xxxxxx has previously notified Landlord in
writing of the need for such repairs and Landlord has failed to
commence said repairs within a reasonable period of time,
following receipt of the Tenant's written notification, and has
not diligently pursued said repairs to completion.
(d) The costs of maintaining the HVAC system for the
Premises shall be borne equally by the Landlord and the Tenant.
Section 14.2 - REPAIRS BY TENANT
(a) It shall be Tenant's sole responsibility, at its own
expense, to keep and maintain the interior of its Premises in
good condition and repair. All repairs to the Premises or any
installation, equipment or facilities therein or thereabout,
other than those repairs required to be made by Landlord pursuant
to Section 15.1, shall be made by Tenant. Said repairs shall
include, but not be limited to, all necessary painting and
decorating, the maintenance, repair and replacement of the
heating, electrical and air conditioning systems, plumbing and
sewer systems, under the slab and elsewhere which exclusively
serves the subject Premises, store fronts, window and other
glass, entrance and service doors and window frames, and any
other mechanical or operational installations, exclusively
serving the Premises.
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(b) All repairs and replacements required as a result of
damage caused by fire and other casualty covered by the insurance
of the parties hereto shall be made by the respective parties.
All such repairs and replacements shall be in quality and class
equal to the original work or item.
(c) Notwithstanding anything contained herein, the
Tenant shall, at Tenant's sole cost, repair or replace all glass
contained in Tenant's Premises, including but not limited to,
glass in doors, storefronts and windows.
Section 14.3 - ALTERATIONS AND REMODELING
(a) The Tenant, at its own expense, shall have the right
during the Term of this Lease, or any renewal thereof, to make
such interior alterations, changes and improvements to the
Premises as the Tenant may deem necessary for its use and
business, provided, however, that any major building or changes
in the heating, ventilating and air conditioning systems shall
not be made without Landlord's consent and such consent shall not
be unreasonably delayed or withheld. All such alterations,
changes and improvements, except trade fixtures, shall become the
property of the Landlord upon installation and shall remain upon
and be surrendered with the Premises upon termination of this
Lease.
(b) Tenant further agrees not to make any alterations,
additions or changes to any storefront or sign, the exterior
walls or roof of the Premises, nor shall Tenant erect any
mezzanine or increase the size of the same if one is initially
constructed or increase the size of the Premises unless and until
the written consent of Landlord shall first have been obtained,
said consent shall not be unreasonably delayed or withheld.
Tenant shall be directly responsible for any and all damages
resulting from any violation of the provisions of this Section.
ARTICLE XV
LIENS
Section 15.1 - INDEMNIFICATION BY TENANT
Tenant shall indemnify and save harmless the Landlord
against all loss, liability, costs, attorney's fees, damages or
interest charges as a result of any Mechanic's Lien or any other
lien caused to be filed against the Property, the Premises or
Tenant's Leasehold estate herein as a result of acts or omissions [check mark]
of the Tenant or its agents, contractors and employees, and the
Tenant shall, within thirty (30) days of the filing of any such
Lien and written notice given to Tenant, remove, pay or cancel
said Lien or secure the payment of any such Lien or Liens by bond
or other acceptable security.
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Section 15.2 - TENANT'S RIGHT OF CONTEST
Tenant shall have the right at all times and at its own
expense to contest and defend on behalf of the Tenant or Landlord
any action involving the collection, validity or removal of such
Lien or Liens, upon giving adequate security to the Landlord for
payment of such Lien.
ARTICLE XVI
INDEMNITY AND INSURANCE
Section 16.1 - MUTUAL INDEMNIFICATION
Landlord and Xxxxxx shall indemnify and save each other
harmless from legal action, damages, loss, liability and any
other expense in connection with loss of life, bodily or personal
injury or property damage arising from or out of the use or
occupancy of their respective Premises or the Property occasioned
wholly or in part by any contractors, employees or persons
claiming through them.
Section 16.2 - TENANT'S INSURANCE
Tenant covenants and agrees that from and after the date
of delivery of the Premises from Landlord to Tenant, and during
the term of this Lease or any renewal thereof, Tenant will carry
and maintain, at its sole cost and expense, the following types
of insurance, in the amounts specified and in the form
hereinafter provided for:
(a) PUBLIC LIABILITY INSURANCE - Tenant shall keep in
full force and effect Public Liability Insurance and Products
Liability Insurance in respect to the use and occupation of its
Premises, naming both Landlord and Tenant as insured in the
amount of $500,000.00 per person and $1,000,000.00 per occurrence
on account of personal injury to or death of one or more persons
and $100,000.00 on account of damage to property, and shall
deposit a copy of the policy or policies of such insurance, or a
certificate or certificates thereof, with Landlord. [check mark]
(b) TENANT'S IMPROVEMENTS AND BETTERMENTS - Tenant shall
at all times during the Term hereof maintain in full force and
effect, All Risk Coverage policy or policies of insurance naming
both Landlord and Tenant as insured parties as their interests
shall appear, covering all of Tenant's improvements and
betterments in Tenant's Premises now existing or to be added, to
the extent of ninety percent (90%) of their full replacement
costs as updated from time to time during the Term of this Lease.
In the event that Xxxxxxxx has made a contribution to Xxxxxx's
improvements and betterments, then Xxxxxxxx's insured interest
shall not be less than the amount of said contribution.
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Said policy or policies shall provide protection against
any peril included within the classification "All Risk Coverage",
together with insurance coverage against sprinkler damage (if the
Premises are sprinklered), vandalism and malicious mischief.
The proceeds of Tenant's policy to the extent of the
cost of any damage or loss to the Premises shall be used for the
repair and replacement of the property damaged or destroyed.
Landlord shall have the right to approve the plans and
specifications. In the event Tenant's failure to commence, within
fourteen (14) days after Landlord's approval of the plans for
repair, and to diligently proceed to reconstruct or repair its
portion of the damaged or destroyed Premises to its former
condition prior to said casualty, then Landlord shall have the
full control of the insurance proceeds and has a right to make
all necessary repairs and if the proceeds are not sufficient to
cover the repairs, the Tenant shall be liable for all additional
costs.
(c) TENANT ALTERATIONS - In the event that Tenant shall
make alterations, additions or improvements to the Premises,
Xxxxxx agrees to keep and maintain such All Risk Insurance
necessary to cover any such alteration, addition or improvement.
It is expressly understood and agreed that none of such
alterations, additions or improvements shall be insured by
Landlord under Xxxxxxxx's insurance nor shall Landlord be
required under any provisions for reconstruction of the Premises
to either reinstall, repair or replace any such alterations,
improvements or additions.
(d) ADDITIONAL HAZARDS - Tenant agrees it will not keep,
use, sell or offer for sale in or upon the Premises any article
which may be prohibited by the Standard Form of All Risk
Insurance Policy. IF TENANT'S BUSINESS IS RESPONSIBLE FOR ANY [check mark]
INCREASE in premiums for All Risk Coverage Insurance, Tenant
agrees to pay any increase that may be charged during the Term of
this Lease or renewal period thereof on the amount of any
Insurance which may be carried by the Landlord on said Premises.
Said additional premiums shall be payable by Tenant to Landlord
upon ten (10) days written notice to Xxxxxx.
(e) Tenant may maintain any of its required Insurance
under Blanket Policies of Insurance covering said Premises and
any other Premises of Tenant, or companies affiliated with
Tenant.
(f) The above mentioned Insurance Certifications are to
be provided by Xxxxxx, for a period of not less than one (1)
year, and that thirty (30) days prior to the expiration of any
said policy of Insurance, the Tenant will deliver to the Landlord
notice of any change or cancellation or renewal or new policy to
take the place of the policy expiring, with the further
understanding that should the Tenant fail to furnish said notice
or policies as is provided in this Lease, and at the times herein
provided, the Landlord may
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obtain such insurance and the premiums on such insurance shall be
paid by the Tenant to the Landlord upon demand. Tenant shall
notify Landlord forthwith in the event of any damage to persons
or property occurring on the Premises from fire, accident, or any
other casualty. The deductible portions of Insurance shall be
first approved by Landlord as to the "amount of deductible"
insurance carried by the Tenant.
Section 16.3 - LANDLORD'S INSURANCE
Landlord covenants and agrees that from and after the
date of delivery of the Premises, from Landlord to Tenant, and
during the term of this Lease or any renewal thereof, Landlord
will carry and maintain, subject to Section 16.3 (c) hereof, the
following types of insurance, in the amounts specified and in the
form hereinafter provided for.
(a) PUBLIC LIABILITY INSURANCE - Landlord shall keep and
maintain in full force and effect Public Liability Insurance with
minimum limits of $500,000.00 per person and $1,000,000.00 per
occurrence on account of bodily injury to or death of one or more
persons and $100,000.00 on account of damage to property.
(b) ALL RISK COVERAGE - Landlord shall, at all times,
keep and maintain in full force and effect All Risk Coverage
policy or policies of insurance covering the roof, structural
portions and perimeter walls of the Premises (excluding Tenant's
fixtures, merchandise, personal property, wall coverings and
betterments and any other item included in Tenant's insurance) in
an amount not less than ninety percent (90%) of full replacement
cost (exclusive of the cost of excavations, foundations and
footings) updated from time to time during the term of this Lease
or the amount of such insurance which Landlord's mortgage lender
may require Landlord to maintain, whichever is the greater,
providing protection against any peril generally included within
the classification "All Risk Coverage", together with insurance
against sprinkler damage, (if Premises are sprinklered),
vandalism and malicious mischief.
(c) Landlord's obligation to carry the insurance
provided for herein may be brought with the coverage of a
so-called blanket policy or policies of insurance carried and
maintained by Landlord, provided that the coverage afforded will
not be reduced or diminished by reason of the use of such blanket
policy of insurance. In the event the insurance rates shall
increases during the term hereof, Tenant shall pay fifty percent
(50%) of any such increase. exception: IF INCREASE CAUSED By
UPSTAIRS TENANTS, LESSEE SHALL NOT BE LIABLE.
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Section 16.4 - WAIVER OF SUBROGATION
(a) Neither party shall be liable to the other party or
to any insurance company (by way of subrogation or otherwise)
insuring the other party for any loss or damage to any building,
structure, or other tangible property even though such loss and
damage may have been occasioned by the negligence of such party,
its agents or employees, except to the extent of the lower of any
deductible amount, if any, of the All Risk Casualty Insurance
policy required of either of the parties herein.
(b) If, by reason of the foregoing, either party shall
be unable to obtain any such insurance, such waiver shall be
deemed not to have been made by such party and, provided further,
that if either party shall be unable to obtain such insurance
without the payment of any additional premium therefore, then,
unless the party claiming the benefit of such waiver shall agree
to pay such party for the cost of such additional premium within
thirty (30) days after notice setting forth such requirement and
the amount of the additional premium, such waiver shall be of no
force and effect between such parties.
(c) This waiver shall be in full force and effect only
with respect to loss or damage occurring during such times as
each party's respective policies and the right to remain insured
shall not be invalidated by this waiver.
Section 16.5 - LANDLORD NOT RESPONSIBLE FOR ACTS OF OTHERS
Landlord shall not be responsible or liable to Tenant,
or those claiming by, through or under Tenant, for any loss or
damage to their person or property resulting from the acts or
omissions of persons occupying space adjoining or adjacent to the
Premises or connected to the Premises or any other part of the
Property caused by the following acts, which include, but are not
limited to, breaking, bursting, stoppage or leaking of electrical
cables and wires, water, gas, sewer or steam pipes.
ARTICLE XVII
GENERAL RULES AND REGULATIONS
Section 17.1 - UNIFORMITY
Tenant, as a covenant and condition of this Lease agrees
to comply with and perform the rules and regulations of the
Landlord. Furthermore, Xxxxxx agrees that Xxxxxxxx has the right
at any time to change and/or impose reasonable rules and
regulations governing the conduct desirable to protect the
general welfare and safety of the people, property, and business
within the Property. In addition, the Tenant agrees to comply
with the rules and regulations set forth herein.
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Section 17.2 - EXTRA HAZARDOUS CONDITIONS
Xxxxxx agrees not to use the Premises in a manner which
will create extra hazardous conditions nor use said Premises in
violation of any law, ordinance or regulation.
Section 17.3 - OBSTRUCTION OF PASSAGEWAYS
Xxxxxx agrees not to obstruct the passageways,
driveways, approachways, walks, roadways, exits and entries in,
to, from and through the Common Areas and all other parts of the
Property used in common with other tenants.
ARTICLE XVIII
SUBORDINATION AND ATTORNMENT BY TENANT
Section 18.1 - SUBORDINATION BY TENANT TO THIRD PARTIES
Xxxxxx agrees that upon the request of Xxxxxxxx, in
writing, it will subordinate this Lease and the lien hereof to
any present or future ground lease or mortgage to a bank,
insurance company, similar financial institution or other entity,
public or private, that may become necessary or desirable from
time to time irrespective of the time of execution of said Xxxxx
or the time of recording of any such mortgage or mortgages.
Tenant shall subordinate this Lease, provided that the holder of
any such mortgage or ground lease, shall enter into an agreement
with Tenant in recordable form, that in the event of foreclosure
or other right asserted under the mortgage or ground lease by the
holder or any assignee thereof, this Lease and the right of
Tenant hereunder shall continue in full force and effect and
shall not be terminated or disturbed unless the Tenant is in
default under this Lease.
Section 18.2 - ATTORNMENT TO TENANT
(a) Xxxxxx agrees that if the mortgagee or the holder of
any ground lease or any person claiming under said Mortgage or
ground lease, shall succeed to the interest of Landlord in this
Lease, the Tenant shall recognize and attorn to said mortgage or
person as Landlord under the terms of this Lease.
(b) Xxxxxx agrees that it will, upon the request of
Xxxxxxxx, execute, acknowledge and deliver any and all
instruments necessary or desirable to give effect or notice of
such subordination and failure of the Tenant to execute any such
document or instrument on demand shall constitute a default by
Tenant under the terms of this Lease. The word "mortgage" as used
herein includes mortgages, deeds of trust or other similar
instruments and modifications,
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consolidations, extensions, renewals, replacements and
substitutes thereof.
Section 18.3 - LANDLORD AS ATTORNEY-IN-FACT FOR TENANT
If Tenant within ten (10) days after submission of such
instrument fails to execute the same, Landlord is hereby
authorized to execute the same as attorney-in-fact for Tenant.
ARTICLE XIX
RIGHTS OF LANDLORD
Section 19.1 - LANDLORD'S RIGHT TO REPAIR
Landlord, or its authorized agents, after reasonable
written notice to Tenant, may go upon and inspect the Premises or
any portion of the Property, and, if necessary shall, after ten
(10) days written notice to Tenant, make those needed repairs
which are the Tenant's obligation to perform and which Xxxxxx has
failed to do. Said work performed shall be chargeable to the
Tenant and shall be due and payable forthwith upon notice of said
costs.
Section 19.2 - LANDLORD'S RIGHT TO AFFIX SIGN
Landlord has a right to install or place upon, or affix
to the roof and exterior walls of the Premises, equipment,
non-competitive signs, displays, antennas and other object or
structure of any kind, provided the same shall not materially
impair the structural integrity of the building or interfere with
Xxxxxx's occupancy.
Section 19.3 - LANDLORD'S RIGHT TO MAKE PAYMENT ON
BEHALF OF TENANT
Landlord has a right to make payments on behalf of the
Tenant where Tenant defaults in its payments or obligations under
the terms of this Lease. Said payments by the Landlord shall be
considered as an "Additional Charge" and be payable on demand.
ARTICLE XX
ASSIGNMENT AND SUBLETTING
Section 20.1 - LANDLORD'S CONSENT REQUIRED
(a) The Tenant, Xxxxxx's legal representatives or
successors in interest to any part or the whole of the Premises,
shall not mortgage, pledge, encumber, franchise, assign or in any
manner transfer this Lease, voluntarily or involuntarily, by
operation of law or otherwise., nor shall the Tenant permit the
Premises or any part thereof to be sublet, used or occupied for
the conduct of any business by any third person or business
entity, or for any purpose
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other than is herein authorized, without the prior written
consent of the Landlord.
(b) It is expressly agreed between the parties hereto
that as a condition to granting any such consent, if such consent
is given, the assignee or subtenant shall agree to pay as Fixed
Rent for the Premises, any increase in the prevailing market
rental per square foot for similar Premises in commercial
shopping centers over the Fixed Rent set forth in this Lease.
(c) Any consent by Xxxxxxxx to any assignment or
subletting, or other operation by a concessionaire, or licensee,
shall not constitute a waiver of the necessity for such consent
under any subsequent assignment of subletting or operation by a
concessionaire or licensee.
(d) Reference anywhere else in this Lease to an assignee
or subtenant shall not be considered as a consent by the Landlord
to such assignment or subletting nor as a waiver against the same
except as specifically permitted in this Section.
Section 20.2 - INSOLVENCY PROCEEDINGS
In the event an assignment of the Premises is caused
through the operation of law due to Xxxxxx's voluntary or
involuntary entering into any type of insolvency proceedings
under the U.S. Bankruptcy Code, said assignment shall be subject
to any and all conditions contained in Section 365 of said Code
or any other section pertaining to the termination, assumption,
assignment and rejection of executory contracts for leases.
Section 20.3 - TRANSFER OF CORPORATE SHARES
A change in the control of a Tenant, other than a
corporation which is listed on a national security exchange as
defined in the Securities Exchange Act of 1934 and as amended,
whether said change of control shall consist of the transfer of
stocks, the sale of assets or any agreement creating a right in
anyone other than the original shareholders of said corporate
Tenant, excepting to members of the immediate family of said
original shareholders, to conduct the Tenant's business, without
the prior consent, in writing, of Landlord to said change in
control or operation, shall constitute an attempted assignment or
subletting in violation of this Section and shall be null and
void and of no effect. Such consent shall not be unreasonably
withheld and no changes shall be made in the Lease until the end
of Term.
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Section 20.4 - TRANSFER OF OTHER BUSINESS INTERESTS
If Tenant is a partnership, general or limited, or any
other type of business entity other than a corporation, and if at
any time during the term hereof of any extension or renewal [check mark]
thereof, the person or persons who at the time of the execution [markings]
of this Lease owns or own the general partners' interest, such
cessation of ownership shall constitute an assignment of this
Lease for all purposes of this Section (except as a result of
transfers by bequests or inheritance).
Section 20.5 - ACCEPTANCE OF RENT BY LANDLORD
If this Lease be assigned, or if the Premises, or any
part thereof, be subleased or occupied by anybody other than
Tenant with or without the Landlord's consent, Landlord may
collect from assignee, subtenant or occupant, any rent or other
charges payable by Tenant under this Lease and apply the amount
collected to the rent and other charges herein reserved, but such
collection by Landlord shall not be deemed a waiver of the
provisions of this Lease, nor an acceptance of this assignee,
subtenant or occupant, as a Tenant of the Premises.
Section 20.6 - NO RELEASE OF TENANT'S LIABILITY
No assignment or subletting or any other transfer by
Tenant, either with or without Landlord's consent, required or
otherwise, during the term of this Lease or any renewal period
thereafter shall release the Tenant from any liability under the
terms of this Lease nor shall the Tenant be relieved of the
obligation of performing any of the terms, covenants and
conditions of this Lease.
ARTICLE XXI
DAMAGE OR DESTRUCTION
Section 21.1 - LANDLORD'S OBLIGATION TO REPAIR AND
RECONSTRUCT
(a) If the Premises shall be damaged by fire or other
casualty insurable under standard extended coverage insurance but
are thereby rendered untenable in whole or in part, Landlord
shall cause the Premises to be repaired in accordance with
Section (d) herein and the rent shall not be abated. If, by
reason of such occurrence, the Premises shall be rendered
untenable only in part, Landlord shall cause the Premises to be
repaired in accordance with Section (d) herein, and only the
Fixed Rent shall be abated proportionately as to the portion of
the Premises rendered untenable until the Premises so repaired is
reopened for business.
(b) If the Premises shall be rendered wholly untenable
by reason of such occurrence and the remainder of the term of the
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Lease (hereinafter called the "residual term") is two (2) years
or more, Landlord shall cause the Premises to be repaired in
accordance with Section (c) herein (subject to reasonable delays
occasioned by adjustment of losses with insurance carriers or for
any cause beyond Landlord's control), and the Fixed Rent shall be
abated, and upon delivery of possession of the restored Premises
to Tenant, this Lease shall thereupon continued for the residual
term and any renewal or extension thereof.
(c) If Landlord is required or elects to repair or
reconstruct the Premises under the provisions of this Article 22,
its obligations shall be limited to those repairs to the Premises
which were Landlord's obligation to perform for Tenant at the
commencement date of this Lease. Tenant, at Tenant's expense,
shall promptly perform all repairs and restoration not required
to be done by Landlord and shall promptly refixture and
reconstruct the Premises and recommence business in all parts
thereof.
(d) Tenant shall not be entitled to any compensation or
damages, other than stated herein, from Landlord for the loss of
the use of the whole or any part of the Premises or damage to
Xxxxxx's personal property or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
Section 21.2 - LANDLORD'S OPTION TO TERMINATE
If the Premises are (1) rendered wholly untenable, or
(2) damaged as a result of any cause which is not covered by
Landlord's insurance or (3) damaged or destroyed in whole or in
part during the last two years of the Term, or if the Property is
damaged to the extent of fifty percent (50%) or more of the Gross
Leasable Area thereof, therein any of such events, Landlord may
elect to terminate this Lease by giving to Tenant notice of such
election within ninety (90) days after the occurrence of such
event. If such notice is given, the rights and obligations of the
parties shall cease as of the date of such notice, and Rental
(other than Rent due Landlord by reason of Tenant's failure to
perform any of its obligations hereunder) shall be adjusted as of
the date of such termination.
Section 21.3 - DEMOLITION OF LANDLORD'S PROPERTY
If the Property is so substantially damaged that it is
reasonably necessary, in Landlord's judgment, to demolish a
portion of the said Property, including the Premises for the
purpose of reconstruction, Landlord may demolish the Premises, in
which event Xxxxxx's rent and other charges shall be abated until
Xxxxxx's Premises are restored.
22
ARTICLE XXII
CONDEMNATION
Section 22.1 - EFFECT OF TAKING
(a) In the event the whole or any part of the Premises,
Property or Common Areas shall be taken for public or
quasi-public use or condemnation under eminent domain, this Lease
shall terminate as to the part so taken on the date possession is
yielded to the condemning authority.
(b) In the event the portion of the Premises so taken
substantially impairs the usefulness of the Premises for the
purposes hereinbefore granted to the Tenant, either party may
terminate the Lease by written notice within thirty (30) days
prior to the actual physical taking.
(c) For the purpose of this Article, a voluntary sale or
conveyance in lieu of condemnation, but under threat of
condemnation, shall be deemed an appropriation or taking under
the power of eminent domain.
(d) If this Lease is not terminated as above provided
following any of such actual takings, then the Landlord shall, at
its expense make all necessary repairs or alterations to the
basic building and exterior work so as to constitute the
remaining Premises as complete architectural units and
proportionate allowance shall be made in the fixed rental and
additional changes based on proportion of the Premises remaining
as compared to the original Premises.
Section 22.2 - COMPENSATION AND AWARDS
All compensation awarded for any taking of the fee and
the leasehold, or any part thereof, shall belong to and be the
property of the Landlord. Tenant hereby assigns to the Landlord
all right, title and interest of Tenant in and to any award made
for leasehold damages and/or diminution in the value of Tenant's
leasehold estate. Tenant shall have the right to claim such
compensation as may be separately awarded or allocated by reason
of the cost or loss to which Tenant might be put in removing
Xxxxxx's merchandise, fixtures, leasehold improvements and
equipment. Compensation as used in this Section shall mean any
award given to the Landlord for such taking in excess of, and
free and clear of, all prior claims of the holders of any
mortgages or other security interests.
Section 22.3 - CONDEMNATION OR BREACH OF LEASE
Any such appropriation or condemnation proceedings shall
not operate as or be deemed an eviction of Tenant or a breach of
Landlord's covenant for quiet enjoyment.
23
ARTICLE XXIII
DEFAULT
Section 23.1 - ACTS OF DEFAULT
Landlord, in addition to all other remedies given to
Landlord in law or in equity may, be written notice to Tenant,
terminate this Lease, or without terminating this Lease, re-enter
the Premises by summary proceedings or otherwise, and may
dispossess the Tenant in any of the following circumstances:
(a) In the event Tenant shall be in default in the
payment of Fixed Rent, or any Additional Charge or Charges, or in
the payment of any other sums of money required to be paid by
Tenant to Landlord under this Lease, or as reimbursement to
Landlord for sums paid by Xxxxxxxx on behalf of Tenant in the
performance of the covenants of this Lease, and said acts,
default or omissions are not cured within fifteen (15) days from [check mark]
due date. ----
(b) In the event Tenant shall be in default in the
performance of any other covenants, terms, conditions,
provisions, rules and regulations of this Lease excepting those
items listed in the above section (a) and if such default is not
cured within thirty (30) days after written notice thereof is
given by the Landlord, excepting such defaults that cannot be
cured completely within such thirty (30) day period and Tenant,
within said thirty (30) day period, promptly commences to proceed
with diligence and in good faith to remedy such default.
(c) Subject to Section 365 of the U.S. Bankruptcy Code,
the filing of a petition proposing the adjudication of Tenant or
Guarantor of Tenant's obligation hereunder as a bankrupt or
insolvent or the reorganization of Tenant or any such Guarantor
or an arrangement by Tenant or any such Guarantor with its
creditors, whether pursuant to the Federal Bankruptcy Code or any
similar federal or state proceeding and such action is dismissed
with thirty (30) days after the date of its filing.
(d) The sale of Tenant's interest in the Premises under
attachment, execution or similar legal process.
(e) The making by Tenant or any such Guarantor of an
assignment for the benefit of creditors.
(f) If the Tenant shall vacate the Premises or shall
fail to operate its business on the days and hours required, or
fails to continuously occupy and conduct Tenant's business in the
Premises.
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Section 23.2 - ABANDONMENT
Other than for the period that business shall close
annually for two weeks, in the event that the premises shall not
be occupied for fifteen (15) consecutive days, then such shall be
deemed an abandonment of the premises without any notice as may
be required under this section.
Section 23.3 - REMEDIES
Landlord, in addition to all other remedies given to
Landlord in law or in equity may, by written notice to Tenant,
terminate this Lease, or without terminating this Lease re-enter
the Premises by summary proceedings or otherwise, and may
dispossess the Tenant in any of the following circumstances.
(a) In the event of such re-entry, Landlord shall have
the right to remove all persons therefrom, to recover the
possession thereof by legal proceedings or otherwise, and to use
such force to enter and regain possession thereof as Landlord
shall deem proper without being liable to any civil action or
criminal prosecution therefore. No such re-entry by Landlord
shall be deemed a termination of this Lease or an acceptance of a
surrender of this Lease. In event of such re-entry the Landlord
shall have the right to relet or subdivide the Premises for any
period equal to or greater or less than the remainder of the
original Term of this Lease, for any rental which it may deem
reasonable, to any other Tenant which Landlord may select and for
any use and purpose which Landlord may designate.
(b) In the event of a default by Xxxxxx, of any of the
terms, provisions, covenants, conditions, rules and regulations
of this Lease, Landlord shall have the right to an injunction and
the right to invoke any remedies available to Landlord, which
rights are declared to be cumulative and concurrent. No
termination of this Lease, nor any taking or recovering of
possession of the Premises shall deprive Landlord of any of its
remedies or actions against Tenant for past or future rent, nor
shall the bringing of any action for rent or other default be
construed as a waiver of the right to obtain possession of the
Premises.
Section 23.4 - DAMAGES
(a) If this Lease is terminated by Landlord pursuant to
this Article XXIV, Xxxxxx nevertheless, shall remain liable for
any rental and additional charges which may be due or sustained
prior to such termination and reasonable costs, fees and expenses
incurred by Landlord in pursuant of its remedies hereunder.
(b) In the event of a reletting, Landlord may apply the
rent therefrom first to the payment of Landlord's reasonable
expenses
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including but not limited to attorney's fees incurred, expense of
reletting, repairs, brokerage fees, subdividing, renovation or
alteration of the Premises and then to the payment of rent and
all other sums due from Tenant hereunder, Tenant shall remain
liable for any deficiency.
Section 23.5 - REPEATED DEFAULT
(a) Notwithstanding anything to the contrary set forth
in this Lease, if Tenant shall be in default in the timely
payment of any rent or any additional charges due Landlord from
Tenant or the payment of any other money due Landlord from Tenant
under the terms of this Lease, any such default shall be repeated
two (2) times in any period of twelve (12) consecutive months,
then, notwithstanding that such default shall have been cured
within the applicable periods, as provided in this Lease, any
further similar default within said twelve (12) month period
shall be deemed to be a repeated Event of Default.
(b) In the event of a Repeated Event of Default,
Landlord, without giving Tenant any notice and without affording
Tenant an opportunity to cure the default, may terminate this
Lease forthwith without notice to Tenant.
ARTICLE XXIV
NOTICES
Section 24.1 - NOTICES TO TENANT AND LANDLORD
Any notice or consent required to be give by or on
behalf of either party upon the other shall be in writing and
shall be given by mailing such notice or consent by Registered or
Certified Mail, Return receipt Requested, addressed to the
Landlord at 0000 X.X. 2ND AVENUE, BOCA RATON, FL
and either party may designate a substitute address at any later
time hereafter. Any such notice shall be deemed given when mailed
as in this Section provided, or delivered personally, or by
facsimile, to the Parties and Authorized Agents and/or Officers.
ARTICLE XXV
MISCELLANEOUS
Section 25.1 - ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser
amount than any payment of rent herein stipulated shall be deemed
to be other than on account of the earliest stipulated rent, nor
shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment
without
26
prejudice to Landlord's right to recover the balance of such rent
or pursue any other remedy provided for in this Lease or
available at law or in equity.
Section 25.2 - COMPLETE AGREEMENT
This Lease contains the entire agreement between the
parties hereto, and no agent, representative, salesman or
affiliate of Landlord hereto has authority to make or has made
any statement, agreement or representation, either oral or
written, in connection herewith, modifying, adding or changing
the terms and conditions herein set forth. No dealings between
the parties or custom shall be permitted to contradict various
additions to or modify the terms hereof. No modification of this
Lease shall be binding unless such modification shall be in
writing and signed by the parties hereto.
Section 25.3 - CONSENTS
Neither Landlord nor Tenant shall unreasonably withhold
approval, or consent when required from either party under the
terms of this Lease (except where otherwise stated herein)
provided, however, that Landlord shall not have deemed to have
unreasonably withheld such approval or consent if its Mortgagee
shall refuse to permit Landlord to grant such consent.
Section 25.4 - COMPLIANCE WITH GOVERNMENTAL AUTHORITIES
Tenant, at its own expense, shall comply with all valid
requirements of the Fire Underwriters Association and all duly
constituted governmental authority and further shall comply with
any Federal, State, County or local law or ordinance applicable
to the use and occupancy of the Premises for any repairs or work
performed on said Premises by the Tenant. The Tenant will
indemnify Landlord and save Landlord harmless from any against
any penalty, damage or charge imposed for any violation by
Xxxxxx, its Assignees, subtenants, licensees, agent and employees
of any said requirements.
Section 25.5 - EFFECTIVE DATE OF LEASE
Submission of this instrument for examination or
execution by Xxxxxx does not constitute a reservation of nor
option for Lease, and this instrument shall not become effective
as a lease or otherwise until execution by and delivery to both
Landlord and Tenant. This Lease shall only become effective and
binding upon the parties in establishing the relationship of
Landlord and Xxxxxx as of the date first written above, but not
earlier than the date Landlord executes this Lease.
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Section 25.6 - ESTOPPEL CERTIFICATE BY TENANT
Tenant agrees at any time, upon not less than ten (10)
days prior written request by the Landlord, to execute,
acknowledge and deliver to Landlord a written statement
certifying that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that the same is in
full force as modified and stating the modifications), the dates
to which the basic rent and other charges have been paid in
pursuance to this Lease and such other certification concerning,
the Lease as may be reasonably required by Landlord or Landlord's
Mortgagee. Xxxxxx further agrees that said statement may be
relied upon by any prospective purchaser of the fee, mortgagee or
assignee of any mortgage on the fee of the Premises. If Tenant
within 10 days after submission of such instrument fails to
execute the same, Xxxxxxxx is hereby authorized to execute the
same as attorney-in-fact for Tenant.
Section 25.7 - FORCE MAJEURE
Landlord and/or Tenant shall be excused for the period
of delay in the performance of any of their obligations
hereunder, except their respective obligation to pay any sums of
money due under the terms of this Agreement, and shall not be
considered in default, when prevented from so performing by cause
of causes beyond Landlord's or Tenant's control, including, but
not limited to, all labor disputes, civil commotion, war, fire,
or other casualty, governmental regulations, statutes,
ordinances, restrictions or decrees, or through acts of God.
Section 25.8 - INTERPRETATION
The law of the State of Florida shall govern the
validity, performance and enforcement of this Lease. If any part
of this Lease shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect or
impair any other provision.
The parties hereto confirm that all of the terms and
covenants contained herein were prepared by both parties hereto
and all negotiations, consideration, representations and
understandings between the parties are incorporated herein, and
may be modified or altered only by agreement, in writing, between
the parties.
Section 25.9 - MEMORANDUM OF LEASE
This Lease shall not be recorded, but a Memorandum of
Lease describing the property herein demised giving the term of
this Lease and renewal rights, if any, and referring to this
Lease, shall be executed by Landlord and Tenant in recordable
form at the request of either party, and may be recorded by
either party.
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Section 25.10 - QUIET ENJOYMENT
Landlord hereby covenants and agrees that if Tenant
shall perform all of the covenants and agreements herein
stipulated to be performed on Tenant's part, Tenant shall at all
times during the continuance hereof have the peaceful and quiet
enjoyment and possession of the Premises without any manner of
hindrance from Landlord or any person or persons lawfully
claiming the Premises, save and except in the event of the taking
of said Premises by public or quasi-public authority as
hereinbefore provided.
Section 25.11 - RENT DEMAND
Every demand for rent due wherever and whenever made
shall have the same effect as if made at the time if falls due
and at the place of payment, and after the service of any notice
or commencement of any suit, or final judgment therein, Landlord
may receive and collect any rent due, and such collection or
receipt shall not operate as a waiver or nor affect such notice,
suit or judgment.
Section 25.12 - SECTION HEADINGS
The Section Headings and Title Headings contained herein
are for convenience only and do not define, limit, or amplify the
contents of such Sections.
Section 25.13 - SUCCESSORS AND ASSIGNS
The conditions, covenants and agreements contained in
this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns. All covenants
and agreements of this Lease shall run with the land.
Section 25.14 - TRANSFER OF LANDLORD'S INTEREST
The Landlord shall be liable under this Lease only while
the Owner of the Premises, and if Landlord should sell or
otherwise transfer Landlord's interest in the Premises upon an
undertaking by the purchaser, or transferee, to be responsible
for all of the covenants and undertakings of Landlord, Tenant
agrees that Landlord shall thereafter have no liability to Tenant
under this Lease or any Modification or Amendment thereof, or
extensions or renewals thereof, except for such liabilities which
might have occurred prior to the date of such sale or transfer of
Landlord's interest.
29
Section 25.15 - WAIVER OF LANDLORD
(a) Landlord shall have the right at all times to
enforce the covenants, conditions and legal rights or remedies of
this Lease in strict accordance with the terms hereof,
notwithstanding any conduct or custom on the part of the Landlord
in refraining from so doing at any time or times. No failure by
the Landlord to insist upon the strict performance of any term or
condition of this Lease or to exercise any right or remedy
available, legal or equitable, or a breach thereof, and no
acceptance of full or partial rent during the continuance of any
such breach shall constitute a waiver of such breach or any such
term, condition or right.
(b) No term or condition of this Lease required to be
performed by the Tenant, and no breach thereof, shall be waived,
altered or modified except by a written instrument executed by
the Landlord.
(c) A waiver by Landlord in respect to any other tenant
of this Property in which the Premises are located shall not
constitute a waiver in favor of any other tenant, nor shall the
waiver of the breach of any condition be claimed, if pleaded to
excuse a future breach of the same condition or covenant or any
other condition, covenant, provision, rule and regulation of this
Lease.
Section 25.16 - BROKERAGE COMMISSION
Landlord (Optionor), by the execution of this Agreement,
xxxxxx agrees to pay a fee to XXXXXX REALTY, INC. (60%) AND XXXX [check mark]
X. XXXXXX (40%) as Broker/Agent, in the amount of six percent
(6%) of the first year's rent and annually thereafter unless
Tenant shall be in default herein. However, Landlord shall pay to
Broker six percent (6%) of all rent received after the first year
and, further, and in addition thereto, to pay a commission to
said Xxxxxx/Agent in the amount of Six Percent (6%) of the
purchase price, as hereinabove set forth, in the event that the
Option to Purchase is exercised, said commission to be paid at
the closing of the transaction and delivery of the Warranty Deed.
In the event that Xxxxxx shall exercise said Option to Purchase
prior to the end of any lease year for which Xxxxxx has been paid
a Rental Commission Broker/Agent, by execution hereof, hereby
agrees that the rental fee paid in advance shall be prorated
accordingly and a credit shall be given against the commission to
be paid to Broker/Agent at closing, as herein set forth.
Section 25.17 - FURNITURE, FIXTURES, AND EQUIPMENT
An inventory is to be taken with ten (10) days of the
date of this Lease. The remaining furniture, fixtures, and
equipment on the property shall be the property of the Landlord
and Landlord
30
shall be responsible for removing the remaining furniture,
fixtures, and equipment which is not on the inventory.
ARTICLE XXVI
CONDITIONS PRECEDENT
This Lease, Option, and Sales Agreement are contingent
upon the premises and the property conforming to all City,
County, and State zoning, parking, health regulations and the
issuance of an occupational license for a 300 seat dinner
theater. If the license can not be obtained within fifteen (15)
days of the date of execution by both parties of this Lease,
unless otherwise agreed this Lease is null and void and all
deposits shall be returned. Such conditions shall be waived upon
the taking of possession of the Demised Premises.
IN WITNESS WHEREOF, the parties hereto have executed
these presents, the day and year first written above.
Signed in the presence of:
LANDLORD:
/s/Xxxx Xxxxxxx /s/Xxxxxx Xxxxxxxxx
XXXXXX XXXXXXXXX
-------------------------
TENANT:
CLASSIC RESTAURANTS
INTERNATIONAL, INC.
/s/Xxxxx Xxxxxxxx BY:/s/Xxxx Xxxxxx
XXXX XXXXXX, President
-------------------------
REALTORS:
_________________________ XXXXXX REALTY INC.
_________________________ BY:/s/Xxxxxxx Xxxxx
XXXXXXX XXXXX, Broker
/s/Xxxx Xxxxxxx X.X. XXXXXX
_________________________ BY:/s/X.X. Xxxxxx
X. X. Xxxxxx
\work\ssr\wentwort\lease
/s/Xxxxx X. Xxxx
[markings] , SECT
31
EXHIBIT "A"
RADON GAS
Radon gas is a natural occurring gas that, when it has
accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels
of radon that exceed federal and state guidelines have been found
in Florida. Additional information regarding radon and radon
testing may be obtained from you county public health unit.
32
EXHIBIT "B"
GUARANTY BY PARENT CORPORATION
For value received and in consideration for and as an
inducement to Landlord making the within Lease with Tenant, the
undersigned, on behalf of itself, its legal representatives,
heirs, successors and assigns, jointly and severally, absolutely
and unconditionally guarantees to Landlord, Xxxxxxxx's successors
and assigns, the full performance and observance of all the
provisions therein provided to be performed and observed by
Xxxxxx, without requiring any notice of non-payment,
non-performance, or non-observance, or proof, or notice, or
demand, whereby to charge the undersigned therefore, all of which
the undersigned expressly agrees that the validity of this
agreement and the obligations of the undersigned guarantor
hereunder shall not be terminated, affected or impaired by reason
of the assertion by Landlord against Tenant of any of the rights
or remedies reserved to Landlord pursuant to the provisions of
the within Lease. The undersigned further agrees that this
guaranty shall remain and continue in full force and effect as to
any renewal, modification or extension of the Lease. As a further
inducement to Landlord to make this Lease and in consideration
thereof, Landlord and the undersigned agree that, in any action
or proceeding brought by either Landlord or the undersigned
against the other on any matters whatsoever arising out of, or by
virtue of the terms of this Lease or of this guaranty, Landlord
and the undersigned shall, and do hereby absolutely and
unconditionally, waive trial by jury. In the event the Landlord
incurs any expenses in the enforcement of this guaranty, whether
legal action be instituted or not, the undersigned agrees to be
liable for same (including without limitation, reasonable
attorney's fees) and to pay same promptly on demand by Landlord.
The undersigned acknowledges receipt of a complete copy of the
Lease with all Exhibits and other attachments, if any.
Date: _______________________
Witnesses: CROWN RESOURCES, INC., a
Georgia corporation
__________________________ By:________________________
, President
--------------------------
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ADDENDUM "A"
OPTION TO PURCHASE
Landlord hereby grants to Tenant an Option to Purchase
the Premises at any time Tenant may elect prior to June 1, 1994,
at a price of One Million Three Hundred Thousand and no\100
($1,300,000.00), provided Tenant shall have fully performed all
of the terms and conditions of this Agreement and shall have made
all payments required hereunder to that time. Said Option to
Purchase may be exercised at any time before June 1, 1994 by the
giving of forty five (45) days prior written notice to Landlord
of such intention to exercise such Option; provided, however,
that shall Tenant not give notice to Landlord on or before June
1, 1994 of its intention to exercise such Option, then, in such
event, such Option to Purchase shall be deemed not to have been
exercised, all rights granted hereunder shall be forfeited.
In the event of Xxxxxx's exercise of the Option to
Purchase, as herein provided, Landlord agrees to convey the
Premises to Tenant by statutory Warranty Deed, free and clear of
all encumbrances, excepting taxes and assessments accruing
subsequent to closing which, under the Agreement, are to be
prorated as of the date of closing and those matters of record,
including any existing mortgages. The closing shall occur
pursuant to the Standards of Real Estate Practice generally in
effect in Palm Beach County, Florida at the time of closing, in
accordance with the Deposit, Receipt and Contract for Sale and
Purchase as attached hereto as Exhibit "1":
As consideration for the granting of this Option to
Purchase by Landlord to Tenant, Tenant shall have paid to
Landlord the sum of Twenty Five Thousand and no\100 Dollars
($25,000.00), as set forth in said Contract.
Signed in the presence of:
LANDLORD:
/s/Xxxx Xxxxxxx /s/Xxxxxx Xxxxxxxxx
__________________________ XXXXXX XXXXXXXXX
TENANT:
CLASSIC RESTAURANTS
INTERNATIONAL, INC.
/s/Xxxxx Xxxxxxxx By:/s/Xxxx Xxxxxx
XXXX XXXXXX, President
--------------------------
[marking] /s/Xxxxxx X. Xxxx
34
ADDENDUM "B"
OPTION TO RENEW
Provided Tenant shall not be in default herein, Landlord
hereby grants to Tenant an Option to Renew the Lease under the
same terms and conditions as this Lease with the exception of
rents for an additional five (5) years. The rent during this
additional five (5) year period shall be adjusted by applying the
cost of living index used by HUD to adjust rents. Said Option to
Renew must be exercised sixty (60) days prior to the expiration
date of this Lease by written notice to Landlord of such
intention to exercise such Option; provided, however, that should
Tenant not give notice to Landlord on or before October 2, 1997
of its intention to exercise such Option, then, in such event,
such Option to Renew shall be deemed not to have been exercised,
and all rights granted hereunder shall be forfeited.
Signed in the presence of:
LANDLORD:
/s/Xxxx Xxxxxxx /s/Xxxxxx Xxxxxxxxx
XXXXXX XXXXXXXXX
-----------------------------
TENANT:
CLASSIC RESTAURANTS
INTERNATIONAL, INC.
/s/Xxxxx Xxxxxxxx By:/s/Xxxx Xxxxxx
XXXX XXXXXX, President
-----------------------------
/s/Xxxxxx X. Xxxx
35
ADDENDUM "C"
This Addendum "C" to that certain Lease dated the 7th
day of October, 1992, xxxxxxx XXXXXX XXXXXXXXX, as Landlord, and
CLASSIC RESTAURANTS INTERNATIONAL, INC., as Tenant, amends and
modifies the same as hereinafter set forth:
1. That Article I, Definitions, Section 1.1 (a) be
modified to provide that the Property shall also include
furniture, fixtures, and equipment located in the Premises
excluding the bars and appurtenances thereto and the sound and
lighting and other electronic equipment. Such tangible personal
property shall remain the Property of the Landlord subject to the
Lease herein.
2. That Article XXV, Miscellaneous, Section 25.17 shall
be amended to provide that the requirement to take an inventory
is hereby moot and that the furniture, fixture and equipment
located in the Premises shall be part of the Property leased by
the Landlord to the Tenant excluding the bars and appurtenances
thereto and the sound, lighting and other electronic equipment.
3. Other than hereinabove set forth, said Lease
Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed
these presents this 15 day of OCTOBER, 1992.
Signed in the presence of:
LANDLORD:
_____________________________ /s/Xxxxxx Xxxxxxxxx
XXXXXX XXXXXXXXX
-----------------------------
TENANT:
CLASSIC RESTAURANTS
INTERNATIONAL, INC.
_____________________________ BY:/s/Xxxx Xxxxxx
XXXX XXXXXX, President
-----------------------------
\ssr\wentwort\addendum.c
36
