(TRI-COUNTY TUMBLEWEED, CINCINNATI, OHIO)
LEASE AGREEMENT
BY
XXXXXX LLC
("LESSOR")
AND
TUMBLEWEED, LLC
("LESSEE")
SUMMARY OF SELECTED LEASE PROVISIONS
(TRI-COUNTY TUMBLEWEED, CINCINNATI, OHIO)
IMPORTANT NOTICE
----------------
THIS SUMMARY IS FOR CONVENIENCE AND REFERENCE ONLY. IT IS MERELY A SUMMARY AND,
THEREFORE, IS INCOMPLETE. FURTHERMORE, THIS SUMMARY IS SUBJECT TO THE PROVISIONS
OF THE LEASE IN ITS ENTIRETY, AND IN THE EVENT OF ANY CONFLICT BETWEEN THE
PROVISIONS OF THIS SUMMARY AND ANY OF THE PROVISIONS OF THE LEASE, THE LEASE
PROVISIONS SHALL GOVERN.
LESSOR............................. XXXXXX, LLC
LESSEE............................. TUMBLEWEED, LLC
LEASED PREMISES.................... Approximately 1.5978 acres located on
Princeton Pike, Springdale, Ohio
(SEE EXHIBIT A FOR DETAILED DESCRIPTION)
INITIAL TERM....................... 11-YEARS
RENEWAL TERMS...................... FOUR 5-YEAR Renewal Periods
BASE INITIAL TERM (BEFORE $1,625,000
RENT "CEILING" REACHED).......... NO RENT DUE OR ACCRUED
INITIAL TERM (AFTER $1,625,000
"CEILING" REACHED, BUT BEFORE
REVENUE PRODUCING BUSINESS
OPERATIONS COMMENCED)......... AMOUNT PER MONTH equal to THE PRODUCT OF
(I) $1,625,000, TIMES (II) STOCKYARDS
PRIME RATE PLUS 1% PER ANNUM, TIMES
(III) THE QUOTIENT OF (A) THE NUMBER
OF DAYS IN SUCH MONTH, DIVIDED BY
(B) 365.
INITIAL TERM (AFTER REVENUE
PRODUCING BUSINESS
OPERATIONS COMMENCED)......... $15,557.42 PER MONTH ($186,689.04
annualized) (*)
RENEWAL TERMS................. $15,557.42 PER MONTH ($186,689.04
annualized) (*)
PLUS CPI Increase (Based on Increase in CPI for Last Year of
Preceding Initial Term or Renewal
Term OVER CPI for Second-to-Last Year)
PERCENTAGE RENT............... 5% of Lessee's Annual Gross Sales OVER
$2,100,000.00
(*) Base Rent will be adjusted to 11.49% of costs, if Lessor's Total Investment
is less than $1,625,000
- i -
INSURANCE..................... To be provided by Lessee
UTILITIES..................... To be provided by Lessee
REAL PROPERTY TAXES........... To be paid by Lessee
MAINTENANCE................... To be provided by Lessee
RIGHT OF FIRST REFUSAL........
Lessee has right of first refusal at
time of proposed sale, exchange, or
other disposition of Leased Premises by
Lessor
LESSOR'S OBLIGATION TO BUILD.. Lessor to build restaurant building
per Lessee's specifications and
directions at a cost, including land
cost and Deemed Interest Factor, not
to exceed $1,625,000
-ii-
LEASE AGREEMENT
(TRI-COUNTY TUMBLEWEED, CINCINNATI, OHIO)
TABLE OF CONTENTS
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ARTICLE/SECTION PAGE
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1 GRANT OF LEASED PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 COMMENCEMENT AND EXPIRATION OF TERM.. . . . . . . . . . . . . . . . 1
2.2 HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 RENT; SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 BASE RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 PERCENTAGE RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 ADDITIONAL RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 DELINQUENT RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 SURVIVAL OF OBLIGATION TO PAY RENT. . . . . . . . . . . . . . . . . 6
4 USE OF THE LEASED PREMISES; QUIET ENJOYMENT. . . . . . . . . . . . . . . . 6
4.1 GENERAL PURPOSES. . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.2 COMPLIANCE WITH LAWS. . . . . . . . . . . . . . . . . . . . . . . . 6
4.3 HAZARDS AND WASTE . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 GENERAL REPRESENTATIONS AND WARRANTIES OF LESSOR; QUIET ENJOYMENT . 7
5 INSURANCE; INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 FIRE AND HAZARD INSURANCE . . . . . . . . . . . . . . . . . . . . . 8
5.2 LIABILITY INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . 8
5.3 WORKERS' COMPENSATION AND UNEMPLOYMENT CONTRIBUTIONS. . . . . . . . 8
5.4 OTHER INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.5 CERTIFICATES OF INSURANCE . . . . . . . . . . . . . . . . . . . . . 9
5.6 WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . 9
5.7 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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LEASE AGREEMENT
(TRI-COUNTY TUMBLEWEED, CINCINNATI, OHIO)
TABLE OF CONTENTS
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ARTICLE/SECTION PAGE
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6 RECONSTRUCTION AND EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . . 10
6.1 CASUALTY, DESTRUCTION OR DAMAGE TO THE LEASED PREMISES. . . . . . . 10
6.2 EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7 UTILITIES; MAINTENANCE, ALTERATIONS AND REPAIRS; CONSTRUCTION OF
SPECIFIED BUILDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.1 UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.2 MAINTENANCE AND REPAIRS . . . . . . . . . . . . . . . . . . . . . . 13
7.3 ALTERATIONS BY TENANT . . . . . . . . . . . . . . . . . . . . . . . 13
7.4 MECHANICS OR MATERIALMEN'S LIENS. . . . . . . . . . . . . . . . . . 14
7.5 SIGNS AND OTHER TRADE FIXTURES. . . . . . . . . . . . . . . . . . . 14
7.6 LESSOR'S RIGHT OF ENTRY . . . . . . . . . . . . . . . . . . . . . . 15
7.7 CONSTRUCTION OF SPECIFIED BUILDING. . . . . . . . . . . . . . . . . 15
8 TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.1 ADDITIONAL RENT FOR REAL PROPERTY TAXES . . . . . . . . . . . . . . 17
8.2 PERSONAL PROPERTY TAXES.. . . . . . . . . . . . . . . . . . . . . . 17
8.3 INCOME TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9 ESTOPPEL CERTIFICATES; SUBORDINATION; ATTORNMENT . . . . . . . . . . . . . 18
9.1 ESTOPPEL CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . 18
9.2 MORTGAGE SUBORDINATION. . . . . . . . . . . . . . . . . . . . . . . 18
9.3 NONDISTURBANCE AGREEMENTS . . . . . . . . . . . . . . . . . . . . . 19
9.4 DEFAULT OF LESSOR UNDER MORTGAGES . . . . . . . . . . . . . . . . . 19
9.5 LESSEE'S NOTICE TO MORTGAGEES OF LESSOR'S DEFAULTS UNDER THIS LEASE 19
10 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.1 DEFAULT BY LESSEE; REMEDIES. . . . . . . . . . . . . . . . . . . . 20
10.2 DEFAULT BY LESSOR. . . . . . . . . . . . . . . . . . . . . . . . . 22
10.3 REMEDIES CUMULATIVE. . . . . . . . . . . . . . . . . . . . . . . . 23
10.4 ATTORNEY FEES AND COSTS. . . . . . . . . . . . . . . . . . . . . . 23
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LEASE AGREEMENT
(TRI-COUNTY TUMBLEWEED, CINCINNATI, OHIO)
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ARTICLE/SECTION PAGE
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10.5 FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.6 WAIVER OF CERTAIN DEFENSES . . . . . . . . . . . . . . . . . . . 23
11 RIGHT OF FIRST REFUSAL. . . . . . . . . . . . . . . . . . . . . . . . . 23
11.1 EXERCISE OF RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . 23
11.2 FAILURE TO EXERCISE RIGHT OF FIRST REFUSAL . . . . . . . . . . . 24
11.3 TRANSFER OF EQUITY INTERESTS IN LESSOR . . . . . . . . . . . . . 24
11.4 TRANSFERS TO RELATED PARTIES EXCLUDED. . . . . . . . . . . . . . 24
12 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
12.1 ASSIGNMENT OR SUBLETTING . . . . . . . . . . . . . . . . . . . . 25
12.2 SUCCESSOR LESSOR'S LIABILITY . . . . . . . . . . . . . . . . . . 25
12.3 RELATIONSHIP OF THE PARTIES. . . . . . . . . . . . . . . . . . . 25
12.4 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 25
12.5 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
12.6 NO WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
12.7 SEVERABILITY AND INVALIDITY. . . . . . . . . . . . . . . . . . . 27
12.8 CAPTIONS, HEADINGS AND SUMMARY . . . . . . . . . . . . . . . . . 27
12.9 SUCCESSORS AND PERMITTED ASSIGNS . . . . . . . . . . . . . . . . 28
12.10 GENDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.11 RECORDING . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.13 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.14 FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . . 28
-v-
--A--
ADDITIONAL RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
--B--
BANK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
BASE RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
--C--
CEILING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CPI INCREASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CPI INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
--G--
GROSS SALES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
--I--
INITIAL TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
--L--
LEASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
LEASED PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
LESSEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
LESSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 25
--M--
MORTGAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
MORTGAGES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
--N--
NOTICE PERIOD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
--P--
PERCENTAGE RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
--R--
REAL PROPERTY TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
RENEWAL TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
RENEWAL TERMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
--S--
SPECIFIED BUILDING . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
STATED PORTION OF THE BASE RENT. . . . . . . . . . . . . . . . . . . . . 3
STOCKYARDS PRIME RATE. . . . . . . . . . . . . . . . . . . . . . . . . . 4
SUBSTANTIAL PORTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
--T--
TOTAL LESSOR INVESTMENT. . . . . . . . . . . . . . . . . . . . . . . . . 3
TRADE FIXTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
- 6 -
LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT ("LEASE") is made and entered into as of the ___
day ________, 1995 by (I) XXXXXX LLC, a Kentucky limited liability company,
(the "LESSOR"); and (II) TUMBLEWEED, LLC, a Kentucky limited liability
company (the "LESSEE").
WITNESSETH:
----------
IN CONSIDERATION OF the mutual covenants and agreements herein
contained, the parties agree as follows:
ARTICLE
1
GRANT OF LEASED PREMISES
----------------------------------------------------
1.1 PREMISES
Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, for the term, at the rental and upon all of the conditions set forth
herein, that certain real property and all improvements thereon and fixtures
and appurtenances thereto located at ______ PRINCETON PIKE, SPRINGDALE, OHIO
4______, as more particularly described on EXHIBIT A attached hereto and made
a part hereof, including, but not limited to, any fixtures, buildings, or
other improvements or alterations constructed, added, or made by Lessor or
Lessee during the Term (as hereinafter defined) in accordance with the
provisions of this Lease and all of Lessor's easements and appurtenances in,
over, and upon adjoining and adjacent public and private land, xxxxxxxx,
xxxxx, xxxxxxx, xxxxx and other areas reasonably required for ingress and
egress and for the installation, maintenance, operation and service of
utilities (the "LEASED PREMISES").
ARTICLE
2
TERM
----------------------------------------------------
2.1 COMMENCEMENT AND EXPIRATION OF TERM.
(a) INITIAL TERM
The initial term of this Lease shall commence as of the date
hereof and shall end on the LAST DAY OF THE 132ND MONTH AFTER THE FULL BASE RENT
COMMENCEMENT DATE (defined below), unless sooner terminated in accordance with
the terms and conditions set forth herein (the "INITIAL TERM").
- 1 -
(b) RENEWAL TERMS
The term of this Lease shall be automatically renewed for
successive additional periods of 60 months each (collectively, the "RENEWAL
TERMS" and each individually, a "RENEWAL TERM") upon the expiration of the
Initial Term and each of the first three Renewal Terms (the Initial Term and
all Renewal Terms are collectively referred to as the "TERM"), unless at
least 120 days prior to the expiration of the Initial Term or any Renewal
Term Lessee gives written notice to Lessor that the Term will end at the
expiration of such period. This Lease shall not be renewable at the end of
the fourth Renewal Term unless amended in writing to provide for such renewal.
2.2 HOLDING OVER
In the absence of a written agreement to the contrary or written
renewal of this Lease, if Lessee remains in possession of the Leased Premises
after the expiration of the Term or the sooner termination of this Lease,
Lessee, at the option of Lessor, shall be deemed to be occupying the Leased
Premises as a tenant from month-to-month at 150% of the then Monthly Base
Rent, subject to all of the conditions, provisions and obligations of this
Lease insofar as the same are applicable to a month-to-month tenancy, and
either party may terminate such month-to-month tenancy on 30 days' notice to
the other.
ARTICLE
3
RENT; SECURITY DEPOSIT
----------------------------------------------------
3.1 BASE RENT
(a) DETERMINATION OF BASE RENT
Lessee shall pay to Lessor a minimum guaranteed rental
(the "BASE RENT") with respect to each month during the Term determined in
accordance with the following schedule (PROVIDED, HOWEVER, that the Base Rent
for any partial month during the Term shall be prorated in accordance with
the ratio of the number of days of such month within the Term to the total
number of days of such month):
---------------------------------------------------------------
PERIOD BASE RENT
---------------------------------------------------------------
Initial Term (before No rent due or accrued
$1,625,000 Ceiling
reached)
---------------------------------------------------------------
Initial Term (after Amount per month equal to THE
$1,625,000 Ceiling PRODUCT OF (I) $1,625,000, TIMES
reached, but before (II) Stockyards Prime Rate PLUS 1%
Full Base Rent per annum, TIMES (III) THE QUOTIENT
---------------------------------------------------------------
- 2 -
---------------------------------------------------------------
Commencement OF (A) the number of days in such
Date(2) month, DIVIDED BY (B) 365
---------------------------------------------------------------
Initial Term(2) $15,557.42 per month (1)
---------------------------------------------------------------
Renewal Term $15,557.42 per month
(1) PLUS CPI Increase
---------------------------------------------------------------
(1) Adjusted to 11.49% of Total Lessor Investment (as
hereinafter defined) if Total Lessor Investment is less
than $1,625,000.
(2) FULL BASE RENT COMMENCEMENT DATE shall mean the earlier to
occur of (a) the date Lessee first derives revenues from the
sale of food and beverages in the ordinary course of its
restaurant business upon the Leased Premises or (b) 30 days
after completion of LESSOR'S WORK (defined below)
(b) CPI INCREASE
(i) For all purposes of this Agreement, the term
"CPI INCREASE" with respect to each Renewal Period shall mean an amount WHICH
BEARS THE SAME RATIO TO the Stated Portion of the Base Rent (as hereinafter
defined) with respect to such Renewal Period AS the CPI Index (as hereinafter
defined) for the last year of the Term immediately preceding such Renewal
Term BEARS TO the CPI Index for the second-to-last year of the Term preceding
such Renewal Term.
(ii) For all purposes of this Agreement, the term
"STATED PORTION OF THE BASE RENT" with respect to the Base Rent for any
Renewal Period shall mean the portion of such Base Rent determined without
regard to any CPI Increase (I.E., the fixed dollar amount of the Base Rent as
set forth in the schedule set forth above with respect to such Renewal
Period).
(iii) For all purposes of this Agreement, the term "CPI
INDEX" for any year shall mean the simple average CONSUMER PRICE INDEX FOR
ALL ITEMS AND MAJOR GROUP FIGURES FOR ALL URBAN CONSUMERS, as published by
the Bureau of Labor Statistics, U.S. Department of Labor, with respect to
such year. Accordingly, (A) if such consumer price index is published
monthly, the CPI Index will be the simple average of the 12 indices so
published, (B) if such consumer price index is published quarterly, the CPI
Index will be the simple average of the 4 indices so published, and (C) if
such consumer price index is published only annually, the CPI Index will be
the index so published. If there is no such consumer price index published
with respect to any year, then its successor (or if no such successor exists,
the most comparable index thereto) shall be used and applied on a reasonably
consistent and equitable basis.
(c) TOTAL LESSOR INVESTMENT
For all purposes of this Lease , the term "TOTAL LESSOR
INVESTMENT" shall mean THE SUM OF (I) the amount paid by Lessor to acquire
the land constituting a part of the Leased Premises including any "soft
costs" such as legal fees, title and survey expenses, permit and license fees
and architect fees, (II) the amounts expended by Lessor to build the
Specified Building as hereinafter provided, AND (III) an amount equal to
interest on the amounts expended by Lessor pursuant to the foregoing clauses
(I) and (II) from the dates of such expenditures until
- 3 -
THE FIRST TO OCCUR OF (A) actual monetary Base Rent being required to be paid
pursuant to Section 3.1((a)) above, OR (B) the Total Lessor Investment equals
$1,625,000 (the "CEILING"), such interest equivalent amount to be computed
based on a rate per annum equal to the Stockyards Prime Rate PLUS 1% per
annum during such period. For all purposes of this Lease, the term
"STOCKYARDS PRIME RATE" during any period shall mean the interest rate per
annum most recently designated by STOCK YARDS BANK AND TRUST COMPANY,
Louisville, Kentucky (the "BANK"), as its "Prime Rate" in effect at the
beginning of such period and as the same may be changed from time to time by
the Bank during such period.
(d) PAYMENT OF THE BASE RENT
The Base Rent for the first month of the Term shall be
due and payable in advance upon execution of this Lease, and the Base Rent
for each month of the Term thereafter shall be due and payable in advance on
the 1st day of such month, without prior demand therefor. Unless otherwise
directed by Lessor in writing, Lessee shall pay the Base Rent due and payable
at any time to Lessor at the address for Lessor which is then applicable as
to notices under the provisions of Section 12.5 below.
3.2 PERCENTAGE RENT
(a) DETERMINATION OF PERCENTAGE RENT
In addition to the Base Rent, Lessee shall pay to Lessor,
as a percentage rental (the "PERCENTAGE RENT") with respect to each year (or
partial year) during the Term of this Lease, an amount equal to FIVE PERCENT
(5%) of THE EXCESS, IF ANY, OF Lessee's Gross Sales during such year, OVER
$2,100,000.00 (which amount shall be prorated for any partial lease year).
(b) DEFINITION OF GROSS SALES
The term "GROSS SALES" with respect to any year (or
partial year) during the Term shall mean the aggregate gross sales price of
all food, beverages and merchandise sold in, from, or with respect to the
Leased Premises, whether for cash, on credit, or otherwise, EXCLUDING,
HOWEVER, (I) any rental tax, sales tax, gross receipts tax, or similar tax by
whatever name called, the amount of which is determined by the amount of
sales made, and which Lessee may be required to collect and account for to
any governmental agency, (II) any transfers of food or beverages made by
Lessee from the Leased Premises to any other stores, warehouses, or
commissaries of Lessee or its affiliated companies or franchisees without
xxxx-up or xxxxx profit, and that are unrelated to sales generated from the
Leased Premises, (III) any credits or refunds made to customers as a courtesy
or for food or beverages returned, exchanged or deemed unsatisfactory, (IV)
any returns of food or beverages to suppliers or manufacturers, and (V) the
net amount of any discounts allowed to customers, including discounts
resulting from the issuance to customers of trading stamps, receipts or
coupons for food or beverages.
- 4 -
(c) RECORD OF SALES
Lessee shall keep complete and accurate books and records
of its Gross Sales, which books and records shall be kept for at least two
years by Lessee at Lessee's address hereinafter designated for notices. At
the time that the Percentage Rent is due and payable with respect to each
year (or partial year) during the Term, Lessee shall submit to Lessor a
written statement of the Gross Sales of Lessee with respect to such year (or
partial year). Such statement of Gross Sales shall be treated as confidential
by Lessor and shall be conclusive unless Lessor, within 90 days after receipt
of such statement, shall cause an audit of applicable records to be commenced
by a certified public accountant engaged and paid by Lessor, which audit
shall thereafter be pursued by such certified public accountant with
reasonable diligence; PROVIDED, HOWEVER, that if such audit discloses a
discrepancy greater than 10% of the amount of Gross Sales with respect to
which Lessee paid Lessor Percentage Rent, then Lessee shall reimburse Lessor
for the costs of such audit together with interest at the Stockyards Prime
Rate per annum as to any underpayment of the Percentage Rent.
(d) PAYMENT OF PERCENTAGE RENT
The Percentage Rent with respect to each year (or partial
year) during the Term of this Lease shall be due and payable within 60 days
after the end of such year (or partial year), without prior demand therefor.
Unless otherwise directed by Lessor in writing, Lessee shall pay the
Percentage Rent due and payable at any time to Lessor at the address for
Lessor which is then applicable as to notices under the provisions of Section
12.5 below.
(e) RETAIL RESTRICTION LIMIT/FAILURE TO OPERATE
The parties acknowledge that the realization of the
benefits of a percentage rent lease are dependent upon Lessee maximizing its
gross sales and that failure to operate or self-competition is inconsistent
with the generation of maximum gross sales. The parties further acknowledge
that Base Rent was negotiated together with and giving consideration to the
Percentage Rent rate and base and that self-competition or failure to operate
by Lessee will deprive Lessor of a bargained-for consideration. Accordingly,
Lessee covenants and agrees that during the Term and any extensions or
renewals thereof (a) Lessee will not, directly or indirectly, engage in any
business similar to or in competition with the business operated on the
Leased Premises within a radius of two miles from the Leased Premises
(provided, however, a "food court" type of restaurant shall not be deemed to
be competitive with the business operated on the Leased Premises) and (b)
Lessee shall use its reasonable best efforts to operate its restaurant
business in the Leased Premises with reasonable due diligence and efficiency
so as to maximize to the extent reasonably and economically feasible the
Gross Sales which may be produced by such manner of operation. Subject to
matters beyond the reasonable control of Lessee, Lessee shall carry at all
times in the Leased Premises a stock of merchandise of such size, character,
and quality as shall be reasonably designed to maximize to the extent
reasonably and economically feasible the return to Lessor and Lessee. Lessee
shall generally operate seven days a week at
- 5 -
such hours as are customary for similar restaurants in the geographic area of
the Leased Premises.
3.3 ADDITIONAL RENT
Lessee shall pay, as additional rent, certain amounts with
respect to taxes, maintenance, and other factors as provided under other
provisions of this Lease (collectively, the "ADDITIONAL RENT"). For all
purposes of this Lease, the term "RENT" shall include all Base Rent,
Percentage Rent, and Additional Rent.
3.4 DELINQUENT RENT
Each unpaid installment of Rent or other amount required to be
paid by Lessee to Lessor under this Lease shall bear interest from 10 days
after the date on which such Rent or other amount is due and payable at the
Prime Rate plus 2% per annum.
3.5 SECURITY DEPOSIT
There shall be no security deposit required under this Lease.
3.6 SURVIVAL OF OBLIGATION TO PAY RENT
Lessee's obligation to pay all Rent when due shall survive the
expiration or sooner termination of the Term.
ARTICLE
4
USE OF THE LEASED PREMISES; QUIET ENJOYMENT
----------------------------------------------------
4.1 GENERAL PURPOSES
Lessee shall use or permit the use of the Leased Premises for a
restaurant and such other activities as are incidental thereto, and may not
use or permit the use of the Leased Premises for any other use or purposes
without the prior written consent of Lessor, which approval shall not be
unreasonably withheld.
4.2 COMPLIANCE WITH LAWS
Lessee, at its sole cost and expense, shall comply in all
material respects, and shall cause the Leased Premises to comply, in all
material respects, with all statutes, laws, ordinances, and governmental
codes, rules, and regulations now or hereafter applicable to the Leased
Premises, including, without limitation, all federal, state, or local
environmental laws, all fire, health, or safety codes and all zoning rules
and regulations and including, without limitation, those which require
- 6 -
the making of any structural or non-structural repairs, alterations, or
improvements to the Leased Premises.
4.3 HAZARDS AND WASTE
Lessee shall not create or permit any hazard, nuisance, menace,
or waste in, on or about the Leased Premises.
4.4 GENERAL REPRESENTATIONS AND WARRANTIES OF LESSOR; QUIET ENJOYMENT
Lessor represents and warrants to Lessee that:
(a) POWER AND AUTHORITY
Lessor owns the Leased Premises in fee simple and has
full power and authority to execute and perform its obligations under this
Lease.
(b) LIENS AND ENCUMBRANCES
During the Term, the Leased Premises shall be free and
clear of all liens and encumbrances superior to the leasehold interests of
Lessee under this Lease, EXCEPT (I) those liens and encumbrances of record
(other than mortgages) as of the date Lessor obtained the land comprising a
part of the Leased Premises (or liens or encumbrances in substitution or
renewal thereof), (II) those liens and encumbrances which may be placed on
the Leased Premises by or with the specific written consent of Lessor and
Lessee in connection with any buildings or other improvements required to be
built by Lessor or Lessee under this Lease, (III) those liens or encumbrances
which may be placed on the Leased Premises by or with the specific written
consent of Lessor in compliance with the provisions of Sections 9.2 and 9.3
hereof, (IV) existing zoning ordinances which affect the Leased Premises or
which may hereafter exist during the Term, and (V) easements for public
utilities and easements of any public highways, and (vi) the lien of real
estate ad valorm taxes not then due and payable.
(c) QUIET ENJOYMENT
During the Term, PROVIDED, HOWEVER, that Lessee is not in
default under this Lease, Lessee shall peaceably hold and have quiet
enjoyment of the Leased Premises free from interference from anyone lawfully
claiming any interest in the Leased Premises (but subject to the terms and
conditions of this Lease).
(d) TAXES
All taxes on the Leased Premises, except current taxes
not due and payable, have been paid in full.
- 7 -
ARTICLE
5
INSURANCE; INDEMNIFICATION
----------------------------------------------------
5.1 FIRE AND HAZARD INSURANCE
Lessee, at Lessee's expense, shall obtain and keep in force at
all times during the Term of this Lease one or more policies of insurance
covering loss or damage to the Leased Premises in the amount of the full
replacement value thereof. Such policies shall provide protection against all
perils included within the classifications of fire, extended coverage,
vandalism, malicious mischief and special extended perils (all risks) and
shall name Lessor as an additional insured.
5.2 LIABILITY INSURANCE
Lessee, at Lessee's expense, shall obtain and keep in force at
all times during the Term of this Lease one or more insurance policies of
comprehensive public liability insurance insuring Lessor and Lessee against
all liability arising out of the ownership, use, occupancy, or maintenance of
the Leased Premises, with policy limits of no less than $5,000,000.00 with
respect to injuries to, or death of, any persons on the Leased Premises, or
occurrences of any property damage to third parties caused on the Leased
Premises, whether or not caused by any of Lessee's employees, agents,
representatives, guests or invitees.
5.3 WORKERS' COMPENSATION AND UNEMPLOYMENT CONTRIBUTIONS
If the nature of Lessee's operation is such as to place any or
all of its employees under the coverage of local workers' compensation or
similar statutes and/or unemployment compensation schedules, Lessee shall
also keep in force, at Lessee's expense, workers' compensation or similar
insurance affording statutory coverage and containing statutory limits, and
shall make all unemployment compensation contributions required by law.
5.4 OTHER INSURANCE
Lessee shall be responsible for obtaining, at Lessee's expense,
business interruption insurance which will cover the payment of Rent and
other charges due hereunder for at least twelve months and insurance on the
equipment, inventory, merchandise, supplies and other property of Lessee on
or about the Leased Premises in a commercially reasonable amount. Lessee, on
its behalf and on its insurers' behalf, hereby expressly waives any and all
claims against Lessor for loss or damage to Lessee's equipment, inventory,
merchandise, supplies and other property on or about the Leased Premises due
to fire, explosion, windstorm, or any other casualty, or due to any other
cause whatsoever, regardless whether Lessee has procured insurance thereon
and regardless of the cause of such loss or damage, including, without
limitation, loss or damage resulting from the negligence of Lessor or
Lessor's partners, officers, managers, members, directors, employees, agents
and representatives.
- 8 -
5.5 CERTIFICATES OF INSURANCE
Lessee shall deliver to Lessor copies of the insurance policies
required under Sections 5.1 and 5.2 hereof and certificates evidencing the
existence and amounts of such insurance with loss payable clauses
satisfactory to Lessor. No such policy shall be cancelable or subject to
reduction of coverage or other modification except after 10 days' prior
written notice to Lessor. Lessor shall, within 10 days prior to the
expiration of any policy, furnish Lessor with renewals or "binders" thereof,
or Lessor may order such insurance and charge the cost thereof to Lessee,
which amount shall be payable by Lessee to Lessor upon demand of Lessor or
the applicable insurance company.
5.6 WAIVER OF SUBROGATION
Lessor and Lessee each hereby waives any and all rights of
recovery against the other, or against the partners, officers, managers,
members, directors, employees, agents and representatives of the other, for
loss or damage to such waiving party or its property or the property of
others under its control, to the extent such damage or destruction is insured
against under any insurance policies in force at the time of such loss or
damage. The provisions of this Section 5.6 shall be effective during the Term
for so long as such provisions do not prohibit securing insurance coverage
from responsible insurance companies by either party after a good faith
effort. Lessor and Lessee shall give notice to its insurance carrier(s) that
the foregoing mutual waiver of subrogation is contained in this Lease and
attempt in good faith to cause its insurance policies with respect to the
Leased Premises, and the property contained therein, to be endorsed to permit
the foregoing waiver of subrogation.
5.7 INDEMNIFICATION
Lessee shall indemnify Lessor and save and hold Lessor harmless
from and against any and all claims, actions, damages, liabilities, and
expenses in connection with loss of life, personal injury and/or damage to
property arising from, out of, or in connection with the occupancy or use by
Lessee of the Leased Premises or any part thereof; PROVIDED, HOWEVER, that
this indemnification by Lessee shall not extend to acts of negligence of
Lessor, or Lessor's officers, managers, members, directors, partners,
employees, agents, or representatives, or to events or accidents which occur
as a result of Lessor's failure to perform its obligations under this Lease.
In the event Lessor shall, without any fault on its part, be made a party to
any litigation commenced by or against Lessee, or against Lessor as a result
of any action or inaction by Lessee in connection with the Leased Premises,
then Lessee shall protect and hold Lessor harmless and shall pay all costs,
expenses, and reasonable attorneys fees incurred or paid by Lessor in
connection with such litigation.
- 9 -
ARTICLE
6
RECONSTRUCTION AND EMINENT DOMAIN
----------------------------------------------------
6.1 CASUALTY, DESTRUCTION OR DAMAGE TO THE LEASED PREMISES
(a) OBLIGATION TO RESTORE MINOR DAMAGE
If the Leased Premises are damaged by fire or other
casualty as to make 25% or less of the rentable square footage of the
buildings constituting a part of the Leased Premises untenantable and such
loss is fully covered by insurance obtained by Lessee as required under this
Lease, Lessor shall repair or restore the Leased Premises to substantially
the same condition as before the damage as soon as reasonably practicable to
the extent of available insurance proceeds.
(b) OPTIONS IF SUBSTANTIAL DAMAGE; NOTICE
If the Leased Premises are damaged so substantially by
fire or other casualty as to make more than 25% of the rentable square
footage of the buildings constituting a part of the Leased Premises
untenantable, Lessor shall have 30 days (the "NOTICE PERIOD") from the date
of such damage to notify Lessee whether Lessor elects to repair and restore
the Leased Premises to substantially the same condition as before the damage;
PROVIDED, HOWEVER, that if such damage to the Leased Premises occurs at a
time when the remainder of the Term is 12 months or less, then,
notwithstanding any other provision hereof which might be construed to the
contrary, Lessee may, at Lessee's option and upon at least 10 days prior
written notice to Lessor, terminate this Lease without penalty or liability,
upon which termination Lessee shall promptly surrender the Leased Premises to
Lessor.
(c) LESSOR'S ELECTION NOT TO RESTORE OR FAILURE TO GIVE NOTICE
If Lessor notifies Lessee within the Notice Period that
Lessor elects not to repair or restore the Leased Premises, or if Lessor
fails or neglects to notify Lessee within the Notice Period that Lessor plans
to repair and restore the Leased Premises, then, in either case, Lessee may,
at its option, within 30 days after the expiration of the Notice Period,
terminate this Lease and surrender the Leased Premises to Lessor. Unless so
terminated, this Lease shall remain in full force and effect for the
remainder of the Term as to the usable portion of the Leased Premises.
(d) LESSOR'S ELECTION TO RESTORE
If Lessor notifies Lessee during the Notice Period that
Lessor elects to restore and repair the Leased Premises, then this Lease
shall remain in full force and effect; PROVIDED, HOWEVER, that if Lessor
fails to commence such repairs and restoration within
- 10 -
a reasonable time thereafter or fails to pursue and implement such repairs
and restoration with reasonable diligence (subject only to events beyond
Lessor's control as provided in Section 10.5 hereof, then Lessee, at Lessee's
option, may cancel this Lease and surrender the Leased Premises to Lessor.
(e) REDUCTION OF RENT
To the extent that this Lease remains in effect following
damage to the Leased Premises by fire or other casualty, the Rent for the
time period commencing on the date of the damage and ending on the date on
which Lessor completes repair and restoration of the Leased Premises as
provided under Section 6.1((a)) hereof shall be reduced on an equitable basis
to take into account the elimination of the portion of the Leased Premises
made untenantable by such fire or other casualty; PROVIDED, HOWEVER, that the
Rent shall not be reduced or abated if the damage or destruction of the
Leased Premises, whether total or partial, is the result of the negligence of
Lessee, or Lessee's officers, managers, members, directors, partners, agents,
employees, representatives, guests or invitees
(f) LESSEE'S CONTINUING OBLIGATION TO INSURE
Any termination by the Lessee of the Lease under this
Section 6.1 shall not relieve Lessee of any liabilities to Lessor regarding
Lessee's responsibility for having insured the Leased Premises for the
benefit and interest of Lessor as provided under this Lease.
6.2 EMINENT DOMAIN
(a) TERMINATION OF LEASE AS TO PORTION OF LEASED PREMISES
TAKEN
In the event that all or any portion of the Leased
Premises is taken under the power of eminent domain by any competent
authority, this Lease shall terminate as to the part so taken as of the date
on which Lessee is required to yield possession thereof to the taking
authority.
(b) TAKING OF LESS THAN A SUBSTANTIAL PORTION OF THE LEASED
PREMISES
If the taking of a portion of the Leased Premises is not
a Substantial Portion, then Lessor shall make all repairs, alterations and
replacements as may be necessary in order to restore the portion of the
Leased Premises not taken to useful condition to the extent of the available
condemnation award and the Rent shall be reduced on an equitable basis to
take into account the elimination of the portion of the Leased Premises taken.
(c) TAKING OF A SUBSTANTIAL PORTION OF THE LEASED PREMISES
If the taking of a portion of the Leased Premises
substantially impairs the usefulness of the Leased Premises for the purposes
for which the Leased Premises were being used by Lessee immediately prior to
the taking, then either Lessor or Lessee shall have the option to terminate
this Lease as of the date on which Lessee is required to yield possession of
the portion taken to the taking authority, which option shall be exercised by
Lessor or Lessee by
- 11 -
written notice delivered to the other of them on or prior to such date.
Unless this Lease is so terminated, Lessor shall make all repairs,
alterations and replacements as may be necessary in order to restore the
portion of the Leased Premises not taken to as useful a condition as is
practicable to the extent of available condemnation proceeds and the Rent
shall be reduced on an equitable basis to take into account the elimination
of the portion of the Leased Premises taken.
(d) SUBSTANTIAL PORTION
For all purposes of this Agreement, the term "SUBSTANTIAL
PORTION" (I) any part of the building on the Leased Premises, (II) 10% or
more of the parking spaces on the Leased Premises, (III) 15% or more of the
land area demised as part of the Leased Premises, (IV) any property which
materially and adversely affects the direct access from the Leased Premises
to any adjacent street or highway, and (IV) any portion of the land or
improvements, the absence of which is reasonably likely to have a substantial
impact on the business of Lessee conducted in, or, or from the Leased
Premises.
(e) CONTESTING TAKING; ALLOCATION OF PROCEEDS
Only Lessor shall have the right to contest any proposed
or declared taking or condemnation of the fee of and leasehold in the Leased
Premises. All compensation awarded for taking of the fee of and the leasehold
in the Leased Premises shall belong to and be the property of Lessor,
provided that Lessee shall have the right to make a separate claim for its
own award for the compensation of its moving or relocation expenses or losses
relating to Lessee's Trade Fixtures.
ARTICLE
7
UTILITIES; MAINTENANCE, ALTERATIONS AND REPAIRS;
CONSTRUCTION OF SPECIFIED BUILDING
----------------------------------------------------
7.1 UTILITIES
Lessee shall timely pay for all heat, water, sewer service, gas,
electricity, telephone and other utilities and services used in or about the
Leased Premises, and all such utilities and services, as applicable, shall be
metered to the Leased Premises in Lessee's name.
7.2 MAINTENANCE AND REPAIRS
(a) LESSEE'S GENERAL OBLIGATION TO MAINTAIN
Lessee, at Lessee's expense, shall maintain the Leased
Premises and all additions thereto and improvements thereof in good repair
and condition throughout the Term and shall yield up the Leased Premises upon
the expiration or sooner termination of this Lease in broom clean condition
and in as good and tenantable condition as the Leased Premises were in at
-12-
the beginning of the Term or at the time later added to the Leased Premises,
as the case may be, normal wear and tear excepted.
(b) SPECIFIC MAINTENANCE OBLIGATIONS OF LESSEE
In furtherance of, and not by way of limitation of,
Lessee's obligations under Section 7.2((a)) hereof, Lessee, at Lessee's
expense, shall be responsible for all repairs, replacements and maintenance
required with respect to the Leased Premises, including, but not limited to,
the repair and/or replacement of (I) any burst, stopped or leaking water,
gas, sewer or other pipes or plumbing fixtures or equipment, (II) any
dysfunctional or malfunctioning lighting, electrical, or heating, ventilation
and air conditioning components, circuits, facilities or systems, (III) any
fences, parking areas, sidewalks, driveways, landscaping and signs, (IV) any
sprinklers or other fire or smoke alarm or control devices and (V) any
foundations, structural components, exterior or interior walls and surfaces,
roofs, gutters, downspouts, ceilings, windows and doors.
(c) WAIVER OF LESSOR LIABILITY
Lessor shall not be responsible or liable to Lessee for
any loss or damage resulting from any cause whatsoever, including, but not
limited to, any loss or damage from any burst, stopped or leaking water, gas,
sewer or other pipes or plumbing fixtures or equipment, or from any failure
of or defect in any lighting, electrical, or heating, ventilation and air
conditioning components, circuits, facilities or systems.
7.3 ALTERATIONS BY TENANT
(a) NONSTRUCTURAL INTERIOR ALTERATIONS
Without any necessity of obtaining Lessor's consent,
Lessee, at Lessee's expense, may from time to time during the Term make any
interior alterations, additions, or improvements in and to the Leased
Premises which Lessee may deem advisable and which do not affect the
structural components of any building or other improvement. Any such interior
alteration, addition, or improvement shall be made in a first class
workmanship manner and in accordance with all valid requirements of municipal
or other governmental authorities.
(b) STRUCTURAL ALTERATIONS
Lessee shall not make any structural additions or other
alterations to, nor remove or demolish, any building or other improvement
constituting a part of the Leased Premises without the prior written consent
of Lessor, which shall not be unreasonably withheld.
(c) ALTERATIONS BECOME PART OF LEASED PREMISES
Lessee agrees that any and all improvements or
alterations to the Leased Premises shall immediately become the property of
the Lessor and shall remain upon and as part of the Leased Premises.
- 13 -
7.4 MECHANICS OR MATERIALMEN'S LIENS
Unless Lessee shall contest the validity thereof as hereinafter
provided, Lessee shall not allow any mechanic's, materialman's, or other
liens to be filed against the Leased Premises or any part thereof as a result
of any act of omission by Lessee. Lessee may contest, by appropriate
proceedings, the amount, validity or application of any mechanic's,
materialman's, or other lien filed against the Leased Premises or any part
thereof so long as (I) no part of the Leased Premises would be subject to
loss, sale or forfeiture before determination of such contest, (II) Lessor is
not subject to any criminal penalty as a result of the failure to pay such
lien, and (III) Lessee conducts all such contests, at Lessee's expense, with
due diligence and in good faith. If required by Lessor's mortgagee, Lessee
shall cause any such lien to be discharged of record by posting a bond.
7.5 SIGNS AND OTHER TRADE FIXTURES
Lessee may construct, build, or install on the Leased Premises
any and all racks, counters, tables, shelves, signage, and other trade
fixtures and equipment of every kind or nature which might be necessary or
desirable to the Lessee's use of the Leased Premises for permitted purposes
(collectively, the "TRADE FIXTURES"). All such Trade Fixtures shall at all
times be and remain the property of Lessee, and, so long as Lessee is not in
default under this Lease, Lessee shall have the right to remove all or any
part of the Trade Fixtures from the Leased Premises at any time during, or
upon the expiration or sooner termination of, the Term; PROVIDED, HOWEVER,
that Lessee shall repair or reimburse Lessor for the full costs of repairing
any damage to the Leased Premises resulting from the installation or removal
of such Trade Fixtures. It is specifically understood and agreed that all
trademarks, trade names, service marks, signs, and other marks of
identification used by Lessee in Lessee's business shall remain the exclusive
property of Lessee at all times, and Lessor shall have no right, title, or
interest in or to any of such trademarks, trade names, service marks, signs,
or other marks of identification.
7.6 LESSOR'S RIGHT OF ENTRY
Lessor and Lessor's employees and agent shall have the right to
enter the Leased Premises from time to time during reasonable hours and upon
reasonable notice to Lessee (or at any time with or without notice in the
event of any emergency) in order to (I) examine the Leased Premises, (II)
make such repairs and alterations as may be necessary for the safety and
preservation of the improvements on the Leased Premises (the cost of which
repairs and alterations shall be borne by Lessee), but without any
obligations to make any such repairs or alterations, or (III) exhibit the
Leased Premises for sale or lease and place one or more "For Sale or Rent"
signs on the Leased Premises during the 6 months immediately preceding the
expiration of the Term, which signs shall not be removed by Lessee.
- 14 -
7.7 CONSTRUCTION OF SPECIFIED BUILDING.
(a) LESSOR OBLIGATION TO CONSTRUCT SPECIFIED BUILDING.
Lessor covenants and agrees to proceed with due diligence, at Lessor's
expense and without reimbursement by Lessee (UNLESS AND UNTIL the Total
Lessor Investment totals $1,625,000) to erect or cause to be erected on the
Leased Premises a permanent building (containing approximately 7,000 square
feet of usable space) and related improvements and site work (collectively,
the "SPECIFIED BUILDING"). The Specified Building shall be based on, and
constructed strictly in accordance with, the modified prototype "maxi"
Tumbleweed restaurant plans and designs as reflected in those certain plans
and specifications with respect to the Leased Premises dated
_____________________ (the "Plans and Specifications") prepared by the
architectural firm of XXXXX & XXXXX, (the "Project Architect"), SUBJECT,
HOWEVER, to such changes as may be required from time to time by Lessee
provided that such changes are consistent with the overall design and do not
unreasonably delay the scheduled completion of construction and subject to
any changes necessary to obtain building permits. All design, architectural,
engineering, excavation and construction work shall be performed in a first
class workmanship manner and in accordance with all applicable building codes
and other requirements of governmental authorities. The work necessary to
construct the specified building in accordance with the plans and
specifications is referred to herein as "LESSOR'S WORK." Lessor's Work shall
be deemed completed upon certification by the Project Architect that Lessor's
Work is substantially complete and issuance of a certificate of occupancy for
the Leased Premises. By opening the Leased Premises for business, and except
as otherwise noted to Lessor in writing at or prior to the time of opening,
Lessee shall be deemed to have (a) accepted the Leased Premises, (b)
acknowledged that the same are in the condition called for hereunder, and (c)
agreed that the obligations of Landlord imposed hereunder with respect to
Lessor's Work have been fully performed.
(b) COMMENCEMENT AND COMPLETION OF CONSTRUCTION.
Lessor agrees that the construction of the Specified Building
shall commence within 30 days after the plans and specifications have been
approved for construction purposes by Lessee and a building permit has been
issued by applicable governmental authorities, and such construction shall be
diligently pursued thereafter until completed. If the Specified Building is
not completed within 6 months after commencement (unless such noncompletion
is due to circumstances beyond the reasonable control of Lessor), Lessee may,
at Lessee's sole option, take over the completion of the Specified Building
and all sums expended for such purpose by Lessee (EXCEPT to the extent that
any such amount, when paid by Lessor, would cause the Total Lessor Investment
to exceed $1,625,000) shall be repayable to Lessee by Lessor upon demand.
(c) LESSEE'S WORK
- 15 -
Lessee shall be responsible for installing its equipment
and Trade Fixtures ("Lessee's Work"). Lessee shall commence Lessee's Work as
promptly as reasonably and feasibly possible after Lessor has notified Lessee
that Lessor's Work has progressed to the point where Lessee's Work may be
commenced. Lessee shall be permitted access to the Leased Premises in order
to perform Lessee's Work provided that Lessee's Work shall be performed in
such a manner as not to unreasonably interfere with Lessor's Work. Lessee
shall indemnify Lessor and hold Lessor harmless from and against any loss,
claim, or expense, including damage to property, injuries to person, or
mechanics' or materialmen's liens arising out of the performance of Lessee's
Work by Lessee, its employees, agents, and contractors.
(d) LESSEE'S PAYMENT OF EXCESS CONSTRUCTION COSTS.
Lessor and Lessee agree that Lessor's obligation to pay
for the construction of the Specified Building shall not exceed an amount
which would cause the Total Lessor Investment to exceed $1,625,000. Any
amounts in excess of Lessor's obligations which are necessary in order to
construct the Specified Building in accordance with the plans and
specifications, as approved by Lessee, shall be paid by Lessee when due.
(e) WAIVER OF LESSEE LIABILITY WITH RESPECT TO CONSTRUCTION.
Nothing in this Lease shall be construed in any way as
constituting the Lessor as the agent of the Lessee in designing, engineering,
or constructing the Specified Building or any other improvements to the
Leased Premises. Lessee shall not be answerable or accountable in any way
for any loss or damage arising from the negligence or carelessness of Lessor
or Lessor's contractor or any of their subcontractors, officer, directors,
partners, employees, agents, or representatives by reason of Lessor's
constructing said improvements pursuant to the terms of this Lease. Lessor
shall pay all of its contractors or subcontractors regarding the scope of its
improvements to the Leased Premises and shall remove, if applicable, any
mechanics' liens which may be filed against the Leased Premises as a result
of Lessor's non-payment of contract sums due to its contractors and
subcontractors. Lessor shall further assign, transfer or otherwise convey to
Lessee any of its or its contractor's or subcontractor's manufacturer's or
vendor's performance warranties or quality of construction guarantees, or any
construction or maintenance service contracts, with respect to the scope of
construction or repairs as performed by Lessor on or to the Leased Premises.
- 16 -
ARTICLE
8
TAXES
----------------------------------------------------
8.1 ADDITIONAL RENT FOR REAL PROPERTY TAXES
(a) LESSEE OBLIGATION TO PAY REAL PROPERTY TAXES
As Additional Rent hereunder, Lessee shall pay all Real
Property Taxes (as hereinafter defined) applicable to the Leased Premises
during the Term, commencing with those due and payable in calendar year 1995;
PROVIDED, HOWEVER, that the Real Property Taxes for any year which are
payable by Lessee shall be subject to a prorata adjustment based upon the
number of days of said year during which the Leased Premises are leased to
Lessee. For all purposes of this Lease, the term "REAL PROPERTY TAXES" shall
include any form of assessment, licensing, commercial rental tax, levy,
penalty, ad valorem tax, or other tax (other than income, inheritance and
estate taxes) imposed upon Lessor with respect to the Leased Premises, or
otherwise against or with respect to the Leased Premises, by any authority
having the direct or indirect power to tax, including any city, county, state
or federal Government, and any school, agricultural or other improvement
district thereof.
(b) NOTICE AND PAYMENT
Following receipt by Lessor of the then current bills for
Real Property Taxes due and payable in 1995 or later years during the Term,
Lessor shall forward a copy thereof to Lessee. Within 30 days after receipt
of such notice from Lessor, Lessee shall pay to Lessor any amount properly
stated therein to be due (SUBJECT, HOWEVER, to the prorata adjustment for any
partial year within the Term, as provided for under Section 8.1((a)) hereof).
8.2 PERSONAL PROPERTY TAXES.
Lessee shall pay, prior to delinquency, all taxes assessed
against or with respect to any Trade Fixtures, furnishings, equipment, or
other personal property contained in the Leased Premises. Any such taxes
imposed upon or otherwise payable by Lessor shall be treated and included as
Real Property Taxes which are subject to the provisions of Section 8.1 hereof.
8.3 INCOME TAXES
Nothing in this Lease shall be construed as requiring Lessee to
pay (I) any municipal, state or Federal income taxes assessed against Lessor,
(II) any municipal, state, or Federal capital, levy, estate, succession,
inheritance, or transfer taxes of Lessor, or (III) any corporate franchise
taxes imposed upon any corporate owner of the fee of the Leased Premises.
- 17 -
ARTICLE
9
ESTOPPEL CERTIFICATES; SUBORDINATION; ATTORNMENT
----------------------------------------------------
9.1 ESTOPPEL CERTIFICATE
(a) LESSEE'S OBLIGATION TO EXECUTE ESTOPPEL CERTIFICATE WHEN
REQUESTED
From time to time, upon at least 10 days prior written
notice from Lessor, Lessee shall execute, acknowledge and deliver to Lessor,
at no cost to Lessor, a statement in writing (I) certifying that, as of the
date of such statement, this Lease is unmodified and in full force and effect
(or, if modified at such time, stating the nature of such modification and
certifying that this Lease, as so modified, is then in full force and
effect), and the Base Rent Commencement Date, (II) certifying the date to
which the Rent and other charges are then paid in advance, if any, and the
amount of the Rent and other charges paid by Tenant, and (III) acknowledging
that, as of the date of such statement, there are not, to Lessee's knowledge,
any uncured defaults on the part of Lessor hereunder, or specifying such
defaults if any are claimed. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Leased Premises.
(b) FAILURE OF LESSEE TO DELIVER ESTOPPEL CERTIFICATE
Lessee's failure to deliver such statement within the 10
day period provided for under Section 9.1((a)) above shall be conclusive upon
Lessee that, as of the end of such 10 day period (I) this Lease is in full
force and effect, without modification except as may be represented by
Lessor; (II) there are no uncured defaults on the part of Lessor hereunder;
and (III) not more than one month's rent has been paid in advance.
(c) LESSEE OBLIGATION TO FURNISH FINANCIAL AND TAX
INFORMATION TO LENDERS
If Lessor desires to finance or refinance the Leased
Premises, or any part thereof, Lessee hereby agrees to deliver to any lender
designated by Lessor such financial statements and tax returns as may be
reasonably required by such lender. All such financial statements and tax
returns shall be received by Lessor in confidence and shall be used only for
the purpose herein set forth.
9.2 MORTGAGE SUBORDINATION
Subject to Lessor's compliance with the provisions of Section 9.3
hereof, Lessee agrees that this Lease shall at all times be subject and
subordinate to (I) all mortgages, liens, security interests, and other
encumbrances (hereinafter sometimes referred to collectively as "MORTGAGES"
and each individually as a "MORTGAGE") against the Leased Premises as of the
date of execution of this Lease, including, but not limited to, the extent to
which such Mortgages
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secure current and future advances made under current debts and obligations
of Lessor, and (II) all Mortgages subsequently placed on the Leased Premises
by or with the consent of Lessor. Subject to Lessor's compliance with the
provisions of Section 9.3 hereof, Lessee agrees that, upon written demand by
Lessor and at no cost to Lessor, Lessee shall execute such documents as may
be required at any time and from time to time to effectuate and evidence such
subordinations.
9.3 NONDISTURBANCE AGREEMENTS
If, as of the date of execution of this Lease, there are any
Mortgages against the Leased Premises, or if Lessor shall subsequently
encumber or permit the encumbrance of the Leased Premises by any Mortgages,
Lessor shall have the mortgagee, lienholder or other secured party with
respect to each Mortgage execute a non-disturbance agreement providing that,
so long as Lessee is not in default under this Lease and continues to perform
all of its obligations under this Lease, (I) Lessee's tenancy shall not be
disturbed, (II) this Lease shall not be affected by any default under such
Mortgage, and (III) in the event of any foreclosure or other enforcement of
such Mortgage, and notwithstanding any resulting transfer of Lessor's rights
under this Lease, the rights of Lessee under this Lease shall expressly
survive and this Lease shall in all respects continue in full force and
effect.
9.4 DEFAULT OF LESSOR UNDER MORTGAGES
If Lessor defaults in making payments under any Mortgage, or if
Lessor is otherwise in default under any Mortgage, Lessee shall have the
right to pay any or all Rent thereafter becoming due under this Lease to the
mortgagee, lienholder, or secured party under such Mortgage instead of to
Lessor, and any payments so made shall, to the extent thereof, discharge the
obligation of Lessee hereunder respecting the payment of such Rent. Subject
to Lessor's compliance with the provisions of Section 9.3 hereof, Lessee
shall execute an acceptance of, and shall fully comply with the terms of, any
collateral or conditional assignment of rents executed by Lessor.
9.5 LESSEE'S NOTICE TO MORTGAGEES OF LESSOR'S DEFAULTS UNDER THIS
LEASE
Lessee agrees that Lessee will give reasonably detailed notice to
any holder of a Mortgage with respect to the Leased Premises (PROVIDED,
HOWEVER, that Lessee has been notified in writing of the name and address of
such Mortgage holder) of any default of Lessor which would entitle Lessee to
terminate this Lease or reduce or xxxxx the Rent hereunder. Such Mortgage
holder shall have the right, but not the obligation, to cure such default
within a period of 30 days after such notice (or within such longer period of
time as may reasonably be required to cure such default if such default
cannot reasonably be cured within said 30 day period), and Lessee shall not
terminate this Lease or reduce or xxxxx the Rent hereunder during such
period.
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9.6 ATTORNMENT
If any person shall succeed to all or any part of Lessor's
interest in the Leased Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of lease, or otherwise, and
if so requested or required by such successor in interest, Lessee shall
attorn to such successor in interest and shall execute such agreement in
confirmation of such attornment as such successor in interest shall
reasonably request; provided, however, in any such event, that such successor
to Lessor's interest shall execute a nondisturbance agreement as described in
Section 9.3 hereof.
ARTICLE
10
DEFAULT
10.1 DEFAULT BY LESSEE; REMEDIES
(a) MATERIAL DEFAULT AND BREACH BY LESSEE
The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Lessee:
(i) The vacating or abandonment of the
Leased Premises by Lessee for 60 days out of any period
of 120 consecutive days during the Term.
(ii) The failure by Lessee to make any
payment of Rent or any other payment required to be
made by Lessee under this Lease as and when due and the
continuance of such failure for a period of 10 days
after written notice thereof to Lessee, Lessee hereby
waiving any statutory notice of default for nonpayment
of Rent.
(iii) The failure by Lessee to observe or
perform any of the covenants, conditions, or provisions
of this Lease to be observed or performed by Lessee,
other than those described in Section 10.1((a))((ii))
above, and the continuance of such failure for a period
of 30 days after written notice thereof from Lessor to
Lessee; PROVIDED, HOWEVER, that if the nature of
Lessee's default is such that more than 30 days is
reasonably required for its cure, then Lessee shall not
be deemed to be in default if Lessee commences such
cure within such 30 day period and thereafter
diligently pursues such cure to completion.
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(iv) The making by Lessee of any general
assignment or general arrangement for the benefit of
creditors.
(v) The filing by or against Lessee of a
petition to have Lessee adjudged a bankrupt or a
petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a
petition filed against Lessee, such action is dismissed
within 60 days).
(vi) The appointment of a trustee or receiver
to take possession of all or substantially all of
Lessee's assets located at the Leased Premises or of
Lessee's interests under this Lease, unless possession
is restored to Lessee within 60 days.
(vii) The attachment, execution, or other
judicial seizure of all or substantially all of
Lessee's assets located at the Leased Premises or of
Lessee's interests under this Lease, unless such
seizure is bonded or discharged within 60 days.
(b) LESSOR'S REMEDIES UPON DEFAULT BY LESSEE
In the event of any material default or breach by Lessee,
as provided under Section 10.1((a)) above, Lessor may at any time thereafter,
with or without additional notice or demand and without limiting Lessor in
the exercise of any right or remedy which Lessor may have by reason of such
default or breach:
(i) Terminate Lessee's right to possession
of the Leased Premises by any lawful means, in which
case this Lease shall terminate and Lessee shall
immediately surrender possession of the Leased Premises
to Lessor. In such event, Lessor shall be entitled to
recover from Lessee all damages reasonably incurred by
Lessor by reason of Lessee's default, including, but
not limited to, (I) the cost of recovering possession
of the Leased Premises, (II) the expenses of reletting,
the cost of any reasonably required new tenant
improvements and allowances, reasonable attorneys'
fees, and any real estate commissions actually paid,
and (III) the reasonable present value as of the date
that Lessor recovers possession of the Leased Premises
of THE EXCESS OF (A) the amount of unpaid Rent which
would have been due and payable during the balance of
the Term after such date had the Lease not been
terminated by reason of Lessee's default, OVER (B) the
amount of net rental income reasonably estimated to be
received by Lessor during such period through reletting
of the Leased Premises. Lessor shall exercise Lessor's
best efforts to mitigate damages
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against Lessee by re-letting the Leased Premises in a prompt
and commercially reasonable manner.
(ii) Maintain Lessee's right to possession,
in which case this Lease shall continue in effect
whether or not Lessee shall have abandoned the Leased
Premises. In such event, Lessor shall be entitled to
enforce all of Lessor's rights and remedies under this
Lease, including the right to recover the Rent as it
becomes due hereunder.
(iii) Require specific performance by Lessee
of Lessee's obligations under this Lease.
(iv) Pursue any other remedy now or hereafter
available to Lessor under the laws or judicial
decisions of the State of Ohio.
10.2 DEFAULT BY LESSOR
(a) MATERIAL DEFAULT AND BREACH BY LESSOR
A material default and breach of this Lease by Lessor
shall occur upon the failure by Lessor to observe or perform any of the
covenants, conditions, or provisions of this Lease to be observed or
performed by Lessor and the continuance of such failure for a period of 30
days after written notice thereof from Lessee to Lessor; PROVIDED, HOWEVER,
that if the nature of Lessor's default is such that more than 30 days is
reasonably required for its cure, then Lessor shall not be deemed to be in
default if Lessor commences such cure within such 30 day period and
thereafter diligently pursues such cure to completion.
(b) LESSEE'S REMEDIES UPON DEFAULT BY LESSOR
In the event of any material default or breach by Lessor,
as provided under Section 10.2((a)), Lessee may at any time thereafter, with
or without additional notice or demand and without limiting Lessee in the
exercise of any right or remedy which Lessee may have by reason of such
default or breach:
(i) Remedy such breach or default and deduct
from the Rent then or thereafter due under this Lease
the reasonable costs of such remedy, including interest
thereon at the Prime Rate plus 2% per annum until
recovered through such Rent offsets offsets against the
Rent then or thereafter due under this Lease.
(ii) Require specific performance by Lessor
of Lessor's obligations under this Lease.
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(iii) Pursue any other remedy now or hereafter
available to Lessee under the laws or judicial
decisions of the State of Ohio.
10.3 REMEDIES CUMULATIVE
All rights and remedies of Lessor enumerated in Section 10.1((a))
hereof and all rights and remedies of Lessee enumerated in Section 10.2((a))
hereof shall be cumulative, and none shall exclude any other right or remedy
allowed by law or equity. Said rights and remedies may be exercised and
enforced concurrently or successively from time to time at Lessor's or
Lessee's option, respectively.
10.4 ATTORNEY FEES AND COSTS
If any party shall default with respect to any of such party's
obligations under this Lease, such defaulting party shall pay all costs,
expenses, and reasonable attorneys' fees which are incurred or paid by the
other parties to this Lease in enforcing the covenants and agreements of the
defaulting party under this Lease.
10.5 FORCE MAJEURE
In the event that either Lessor or Lessee shall be delayed in,
hindered in, or prevented from the performance of any act required hereunder
by reason of any strikes, lock-outs, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war, or the act, failure to act, or default of the other
party, or for other reasons beyond such party's control, then such party's
performance of such act shall be excused during the period of the delay and
the period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
10.6 WAIVER OF CERTAIN DEFENSES
Should either Lessor or Lessee seek recourse to equity to enforce
any of its rights under this Lease by specific performance, injunction, or other
equitable relief, the other party agrees to, and hereby does waive any
defense(s), which it might otherwise have that there is any adequate remedy at
law.
ARTICLE
11
RIGHT OF FIRST REFUSAL
--------------------------------
11.1 EXERCISE OF RIGHT OF FIRST REFUSAL
During the Term, if (I) Lessor shall receive a bona fide offer to
purchase or otherwise acquire all or any part of the Leased Premises and
Lessor shall desire to accept such offer, or (II) Lessor shall make an offer
to sell or otherwise dispose of all or any part of the
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Leased Premises, then, EXCEPT as otherwise provided under Section 11.4 below,
Lessor shall grant Lessee the right to purchase or acquire such interests in
the Leased Premises at the price and on the other terms and conditions of the
offer so made. Lessor shall give written notice to Lessee of any such offer,
which notice shall attach a true and correct copy of the offer, if in
writing, or otherwise shall describe in detail all of the terms and
conditions of the offer. Lessee shall have a period of ten (10) days after
such notice is given within which to exercise Lessee's right of first refusal
under this Article 11 by giving written notice of such exercise to Lessor.
Notwithstanding anything herein which might be construed to the contrary, the
closing of Lessee's acquisition of all or any portion of the Leased Premises
pursuant to this Article 11 shall occur no sooner than 30 days after Lessee's
exercise of Lessee's right of first refusal. The foregoing right of first
refusal shall be subordinate to the lien of any mortgage on the Leased
Premises, but shall apply in the event of any sale by foreclosure or
otherwise by the mortgagee.
11.2 FAILURE TO EXERCISE RIGHT OF FIRST REFUSAL
If Lessee shall fail or neglect to timely exercise Lessee's right
of first refusal after receipt of the notice from Lessor provided for under
Section 11.1, then Lessee's right of first refusal as to the offer set forth
in such notice from Lessor shall expire and Lessor may sell or otherwise
dispose of the Leased Premises to the person who made such offer upon the
terms and conditions thereof (all as described in Lessor's notice to Lessee).
Any such sale or other disposition shall be subject to all of the terms,
conditions, and covenants of this Lease and any present or future leases of
the Leased Premises (including the right of first refusal rights provided for
under this Article 11 as to any subsequent offers).
11.3 TRANSFER OF EQUITY INTERESTS IN LESSOR
If Lessor is a corporation, joint venture, partnership, or
limited liability company, the transfer of any or all of the equity interests
in such entity shall be subject to right of first refusal rights in favor of
Lessee under terms and conditions substantially similar to those set forth in
the other provisions of this Article 11.
11.4 TRANSFERS TO RELATED PARTIES EXCLUDED
Notwithstanding any other provision of this Article 11 which
might be construed to the contrary, Lessee shall be given notice of any
proposed transfer, for nominal or no consideration, of all or any part of the
Leased Premises or of the equity interests described in Section 11.3 to any
Related Party with respect to Lessor, BUT Lessee shall have no right of first
refusal rights with respect to such proposed transfers. For all purposes of
this Lease, the term "RELATED PARTY" with respect to Lessor shall mean (I)
any entity controlling, controlled by, or under common control with Lessor,
(II) any owner of the equity interests in Lessor, if Lessor is an entity,
(III) any individual related by blood or marriage to Lessor, if Lessor is an
individual, or to the owners of the equity interests in Lessor, if Lessor is
an entity, and (IV) any entity the equity interests of which, or the
beneficial interests in which, are owned by any of the individuals or
entities described in the foregoing clauses of this sentence.
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ARTICLE
12
MISCELLANEOUS
-------------------------
12.1 ASSIGNMENT OR SUBLETTING
Lessee shall not assign this Lease in whole or in part or
sublease all or any portion of the Leased Premises without the prior written
consent of Lessor, which consent shall not be unreasonably withheld;
PROVIDED, HOWEVER, that, notwithstanding the foregoing, Lessee may assign
this Lease in whole or in part or sublease all or any portion of the Leased
Premises without the prior written consent of Lessor to any entity
controlling, controlled by, or under common control with, Lessee. Unless
otherwise agreed to by Lessor, in the event of any assignment or sublease of
this Lease by Lessee permitted under this Section 12.1, Lessee shall remain
fully liable to Lessor in connection with this Lease and with respect to the
Leased Premises. Lessor may freely assign any or all of its rights and
obligations under this Lease.
12.2 SUCCESSOR LESSOR'S LIABILITY
The term "Lessor" as used herein at any time shall mean only the
owner or owners at such time of the fee title to the Leased Premises and, in
the event of any transfer of such title, Lessor herein named (and in case of
any subsequent transfers, then the transferor) shall be relieved from and
after the date of such transfer of all liability with respect to Lessor's
obligations under this Lease thereafter to be performed; PROVIDED, HOWEVER,
that any funds in the hands of Lessor or the then transferor at the time of
such transfer, in which Lessee has an interest, shall be delivered to the
transferee. The obligations contained in this Lease to be performed by Lessor
shall, subject as aforesaid, be binding on Lessor's successors and assigns
only during their respective periods of ownership.
12.3 RELATIONSHIP OF THE PARTIES
Nothing contained in this Lease shall be deemed or construed by
the parties hereto, or by any third party, as creating the relationship of
principal and agent, partnership, or joint venture between or among any of
the parties.
12.4 ENTIRE AGREEMENT
It is expressly understood and agreed by and among the parties
hereto that this Lease sets forth all the promises, agreements, conditions
and understandings between Lessor and Lessee relative to the Leased Premises
and that there are no other promises, agreements, conditions or
understandings, either oral or written, among them other than as are herein
set forth. It is further understood and agreed that no subsequent alteration,
amendment, change or
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addition to this Lease shall be binding upon Lessor or Lessee unless reduced
to writing and signed by them, and by direct reference therein made a part
hereof.
12.5 NOTICES
(a) DELIVERY OF NOTICE
All notices, demands, requests, consents, approvals,
offers, counteroffers or other communications required or permitted under
this Lease shall be in writing and (I) delivered by personal delivery to such
intended recipient, which personal delivery shall be evidenced by a written
receipt therefor signed by such recipient, (II) sent by United States
certified, registered or express mail, return receipt requested, postage
prepaid, or by reputable express delivery service (such as Federal Express,
UPS, Airborne, Purolator, or DHL), fees prepaid, addressed to the intended
recipient thereof, at the address listed for such party below, or at such
other address as such party shall furnish in writing to the other parties to
this Lease, or (III) transmitted by fax to such intended recipient at the fax
number listed for such party below (or such other fax number as such party
shall furnish in writing to the other parties to this Lease), receipt of
which transmission shall be confirmed by such recipient.
TO LESSOR: Xxxxxx, LLC
Attn: Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Fax: (502) ____________________
WITH COPY TO: Xxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxx & Heyburn
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Fax (000) 000-0000
TO LESSEE: Tumbleweed, LLC
A Kentucky Limited Liability Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
ATTENTION: Xxxx X. Xxxxxxx, Xx. & Xxxxx X.
Xxxxxxxxx, Managers
Fax: (000) 000-0000
WITH COPY TO: Xxxx & Xxxxxx, P.S.C.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
ATTENTION: Xxxxx X. Xxxx
Fax: (000) 000-0000
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(b) EFFECTIVE DATE OF NOTICE; RESPONSE PERIOD
All such notices, demands, requests, consents, approvals,
offers, counteroffers or other communications shall be effective upon being
personally delivered and properly receipted, two (2) days after being properly
addressed and deposited in the United States mail or with a reputable express
delivery service or upon being transmitted by fax and properly receipted, as set
forth above. However, the time period in which a response to any such notice,
request, demand, consent, approval, offer, counteroffer or other communication
must be given shall commence to run from the date of receipt of personal
delivery, the date on the return receipt or express delivery receipt, or the
date of confirmation of receipt of the fax, as the case may be, of the notice,
request, demand, consent, approval, offer, counteroffer or other communication
by the addressee thereof; PROVIDED, HOWEVER, that if any party rejects delivery
of any such notice, request, demand, consent, approval, offer, counteroffer or
other communication properly sent by mail or express delivery service, or fails
or neglects to accept delivery after two (2) attempts to so deliver by postal or
express delivery authorities, as the case may be, the time period for a response
shall commence two (2) days following the proper mailing or depositing with the
express delivery service, as the case may be, of such notice, request, demand,
consent, approval, offer, counteroffer or other communication.
12.6 NO WAIVER
No waiver by any party of any provisions of this Lease, nor any
default by any party, shall affect the rights of the waiving or nondefaulting
party or parties thereafter to enforce such provision or to exercise any right
or remedy in the event of any other default, whether similar or dissimilar. No
waiver shall be binding unless executed in writing by the party making the
waiver, nor shall any waiver constitute a continuing waiver.
12.7 SEVERABILITY AND INVALIDITY
The invalidity or unenforceability of any provision hereof shall
not affect or impair any other provisions hereof; PROVIDED, HOWEVER, should any
provision hereof providing for the payment of any rents, compensation or
reimbursement to Lessor be invalid or unenforceable, Lessor may, at its sole
option, terminate this Lease at any time giving Lessee 10 days' prior written
notice of such election to terminate.
12.8 CAPTIONS, HEADINGS AND SUMMARY
The captions and headings throughout this Lease and the Summary at
the beginning of this Lease are for convenience and reference only and the words
contained in such captions, headings and Summary shall in no way be held or
deemed to define, limit, describe, explain, modify, amplify or add to the
interpretation, construction or meaning of any provision or the scope or intent
of this Lease, nor in any way affect this Lease.
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12.9 SUCCESSORS AND PERMITTED ASSIGNS
Subject to the provisions of Section 12.2 hereof, the terms,
covenants and conditions of this Lease shall inure to the benefit of, and shall
be binding upon, the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns.
12.10 GENDER
The use of any gender in this Lease shall include all other
genders, the singular shall include the plural, and the plural shall include the
singular, as the context may require.
12.11 RECORDING
No party to this Lease shall record this Lease without the other
parties' prior written consent, but each party shall, upon request of any other
party, execute, acknowledge and deliver to such other party a "short form"
memorandum of this Lease for recording purposes.
12.12 GOVERNING LAW
This Lease shall be construed and interpreted in accordance with
the laws of the State of Ohio without regard to any conflict of laws
provisions.
12.13 COUNTERPARTS
This Lease may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
12.14 FURTHER ASSURANCES
From time to time, at any party's request and without further
consideration, each party shall execute and deliver such further instruments,
and take such other actions as the requesting party may reasonably request, in
order to more effectively implement the transactions contemplated herein.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the day
and year first hereinabove written.
LESSOR:
/s/ Xxxxxx X. Xxxxxx XXXXXX, LLC
-------------------------------
WITNESS
By: /s/ Xxxxxx X. Xxxxxx
------------------------------- -------------------------------
WITNESS XXXXXX X. XXXXXX, MEMBER
LESSEE:
/s/ Xxx Gru??? TUMBLEWEED, LLC
-----------------------
WITNESS
/s/ Xxx Xxxxx BY: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------- ------------------------------
WITNESS XXXX X. XXXXXXX, XX., MANAGER
BY: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
XXXXX X. XXXXXXXXX, MANAGER
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EXHIBIT A
LEGAL DESCRIPTION OF LEASED PREMISES
That certain parcel of land, together with all improvements, privileges and
appurtenances thereto and all right, title and interest, if any, of Lessor in
and to any property lying in the bed of any street, road, highway, or avenue
opened or proposed in front of, adjacent to, or adjoining such land, located in
the City of Springdale, Xxxxxxxx County, Ohio, being a portion of Xxxxxxxx
County Auditors Parcel 000-00-00, and being more particularly described as
follows:
SITUATE in Section 00, Xxxx 0, Xxxxxx Xxxxx 0, Xxxxxxxxxxx Xxxxxxxx,
Xxxx of Springdale, Xxxxxxxx County, Ohio, and being more particularly
described as follows:
COMMENCING at a point in the west line of Princeton
Pike at the southeast corner of Xxx 0 xx Xxx-Xxxxxx
Xxxxxxxxxxx Xxxx, Xxxxx A, as recorded in Plat Book
210, page 57, Xxxxxxxx County Recorder's Office, said
point being South 01DEG. 00' 00" West, 527.64 feet
along the east line of Section 12 and North 65DEG. 12'
00" West, 43.72 feet from the intersection of the
centerlines of Princeton Pike and Tri-County Parkway
and said east line of Section 12;
THENCE along the west line of Xxxxxxxxx Xxxx, Xxxxx
00XXX. 00' 00" West, 129.64 feet to the True Point of
Beginning; THENCE, continuing along the same, South
01DEG. 00' 00" West, 181.00 feet to a point; THENCE,
North 89DEG. 00' 00" West, 415.34 feet to a point;
THENCE, North 01DEG. 00' 00' East, 21.96 feet to a
point; THENCE, North 24DEG. 48' 00" East, 173.82 feet
to a point; THENCE, South 89DEG. 00' 00" East, 345.00
feet to The Point of Beginning.
CONTAINING 1.5978 acres of land, more or less, and
being subject to all legal easements and rights-of-way
on record.
