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Exhibit 10.55
ROADHOUSE GRILL/Jacksonville, ▇▇▇▇▇ County, Florida
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into as of September 15th, 1998, by
and between:
(i) CNL APF PARTNERS, LP, a Delaware limited partnership, with principal office
and place of business at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Landlord"), and (ii) ROADHOUSE GRILL, INC., a Florida corporation, with a
mailing address of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant").
WITNESSETH:
Landlord leases to Tenant, for the purpose of developing, constructing and
operating a ROADHOUSE GRILL Restaurant and for no other use or purpose
whatsoever and subject to the terms and conditions of the Rent Addendum and
Construction Addendum attached hereto, and Tenant rents from Landlord the
following described premises, (hereinafter "Premises") located at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and being more
particularly described in Exhibit "A" attached hereto and made a part hereof,
together with all rights and privileges in and about the Premises as may be
necessary or convenient to Tenant's business, inclusive of all easements
benefitting the real property described in Exhibit "A". Premises shall include
all improvements and structures whether now existing or hereafter constructed
thereon.
The following additional stipulations are hereby declared to be covenants of
this Lease and shall, unless otherwise expressly stated, be applicable at all
times throughout the term of this Lease and any extension or renewal thereof:
1. DEFINITIONS
For purposes of this Lease, the following terms are hereby defined to mean:
"Effective Date" shall mean the first date set forth at the beginning of this
Lease.
"Landlord" shall mean CNL APF PARTNERS, LP, a Delaware limited partnership, its
successors and assigns.
"Lease" shall include this Lease Agreement and all amendments hereto, if any,
entered into from time to time hereafter.
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"Lease Year" shall mean a fiscal period beginning on the Effective Date (and
each anniversary thereof) and expiring twelve (12) months thereafter.
"Rent" shall mean the Rent payable under this Lease as set forth in the Rent
Addendum attached hereto and incorporated herein, and shall include Interim Rent
and Annual Rent (all as defined in the Rent Addendum).
2. TERM AND RENT
(a) TERM. The term of this Lease shall begin on the Effective Date and shall
expire on a date thirteen (13) years thereafter unless previously terminated or
renewed or extended as provided herein.
(b) RENT. Rent shall be due and payable as provided in the Rent Addendum
attached hereto and incorporated herein.
3. ALTERATIONS AND IMPROVEMENTS, INVESTMENT TAX CREDIT, MECHANIC'S LIENS,
LANDLORD'S DISCLAIMER
(a) Tenant shall be permitted to install, use on and about, and remove from the
Premises at any time and from time to time all trade fixtures and other
personal property (exclusive of lighting, electrical, heating and air
conditioning improvements) which are not a component of the building located or
to be located on the Premises (hereinafter referred to as the "Tenant's
Property"), all of which at all times shall remain the property of Tenant with
the right of removal (subject to paragraph (d) below) at the expiration of this
Lease. Trade fixtures shall include: (1) removable decor items and office
equipment; (2) building lettering, signs, sign posts and sign standards; (3)
unattached food and customer service equipment; and (4) food and customer
service equipment attached to the building by bolts and screws and/or by
utility connections, including without limitation, walk-in refrigerators and
freezers, remote refrigeration systems, exhaust systems and hoods. Tenant shall
also have the right, at its option and expense, to redecorate or otherwise
remodel the Premises upon any termination hereof or upon subletting or
assignment in such manner as will, without reducing the fair market value
thereof, avoid the appearance of the ROADHOUSE GRILL Restaurant operated under
this Lease; provided, however, Tenant shall not impair the structural condition
of the Premises or reduce the size thereof. Tenant shall have the right to make
any additions, alterations, changes and improvements, structural and
nonstructural, including but not limited to construction of additional
buildings and additions to the then existing buildings, as Tenant shall desire;
provided, however, (i) Tenant shall submit plans of all structural changes to
Landlord at least thirty (30) days in advance of the proposed construction
date, (ii) Tenant shall provide Landlord with evidence of Tenant's financial
ability to pay for such changes, (iii) if the cost of structural changes
exceeds TEN THOUSAND AND NO/l00 DOLLARS ($l0,000.00), Tenant shall post payment
and performance bonds for such work naming Landlord and Tenant as dual
obligees, (iv) all such construction shall be completed in a workmanlike manner
and in full compliance with all building laws and ordinances applicable
thereto, at Tenant's expense, and (v) such additions, alterations, changes and
improvements shall not reduce the fair market value of the Premises. All such
additions, alterations, changes and improvements shall be deemed to be a part
of the Premises.
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(b) Landlord hereby grants Tenant the right and privilege of applying for and
receiving all investment tax credits, if any, under the Internal Revenue Code
which may be available with respect to the building and other improvements to
be constructed. To this end, Landlord agrees to execute all such further
documents and supply such additional information as may be required to make
such election effective.
(c) Tenant shall not do or suffer anything to be done whereby the Premises, or
any part thereof, may be encumbered by a mechanic's lien or similar lien, and,
if, whenever and as often as any mechanic's lien or similar lien is filed
against the Premises, or any part thereof, purporting to be for or on account
of any labor done, materials or services furnished in connection with any work
in or about the Premises, done by, for or under the authority of Tenant, or
anyone claiming by, through or under Tenant, Tenant shall discharge the same of
record within ten (10) days after service upon Tenant of notice of the filing
thereof; provided, however, Tenant shall have the right to remove the lien by
bonding same in accordance with applicable law and to contest any such lien;
provided further that Tenant shall diligently prosecute any such contest, at
all times effectively staying or preventing any official or judicial sale of
the Premises under execution or otherwise, and, if unsuccessful, satisfy any
final judgment against Tenant adjudging or enforcing such lien or, if
successful, procuring record satisfaction or release thereof.
(d) All of Tenant's Property placed in or upon the Premises by Tenant shall
remain the property of Tenant with the right to remove the same at any time
during the term of this Lease. Landlord, if requested by Tenant, agrees to
execute such documentation subordinating its lien rights (vis a vis any
equipment lender or landlord) to Tenant's personalty and to all rights of levy
for distraint for rent against same as shall be reasonably required by any
equipment lender or lessor of Tenant; provided any damage caused by, or
resulting from the removal of any trade fixtures, equipment or other personal
property shall be promptly repaired by Tenant or the party entitled to remove
same.
4. DESTRUCTION OF PREMISES; INSURANCE
(a) If the Premises are damaged or destroyed by fire, flood, tornado or other
element, or by any other casualty and such damage or destruction does not occur
within the last twenty-four (24) months of the original or of any extended or
renewed term of this Lease, this Lease shall continue in full force and effect
and Tenant shall, as promptly as possible, restore, repair or rebuild the
Premises to substantially the same condition as it existed before the damage or
destruction. Tenant shall for this purpose use all, or such part as may be
necessary, of the insurance proceeds received from insurance policies carried
on the Premises under the provision of subparagraph 4(b) hereinbelow. If such
insurance proceeds are not sufficient to pay such costs, Tenant shall pay such
deficit. Should the Premises be damaged or destroyed by any of the foregoing
described casualties within the last twenty-four (24) months of the original
term or of any extended or renewed term of this Lease, to the extent that they
are untenantable or
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unsuitable, in Tenant's opinion for continued use in the normal conduct of
Tenant's business, Tenant shall have the right, exercisable by written notice
to Landlord given within thirty (30) days after the date of such damage or
destruction, of terminating this Lease effective upon the date of such damage
or destruction. If Tenant terminates this Lease as thus provided Landlord shall
be entitled to all of the insurance proceeds on the Premises, but not to the
proceeds of insurance carried by Tenant on Tenant's Property; provided,
however, Tenant shall not have the right to terminate this Lease unless (i) the
damage or destruction of the Premises was caused by a peril which was insured
against by the provisions of subparagraph 4(b) of this Lease; (ii) at the time
of such damage and destruction the said insurance policies to be carried by
Tenant were in the amount of the full replacement cost of such improvements
(without deduction or co-insurance) and in full force and effect; and (iii) the
insurer has confirmed coverage and its obligation to pay. If Tenant defaults in
its obligation to carry insurance in the amount required under subparagraph
4(b), then, prior to a Tenant termination of this Lease, Tenant shall be
obligated to pay toward said reconstruction or to Landlord the difference
between the amount actually carried and the amount required to be carried under
this paragraph.
(b) Tenant, at its expense and as additional rent hereunder, shall throughout
the term of this Lease and any extension or renewal thereof, keep the Premises
insured with "all risk" coverage, including code changes, glass breakage,
vandalism and malicious mischief coverage, and builder's risk (if the Premises
are to be constructed) ("all risk" as such term is used in the insurance
industry) for the full replacement value, with any deductible to be approved by
Landlord (and without any co-insurance provision (Agreed Value endorsement)).
If Tenant serves alcoholic beverages, or if the Premises are located in a flood
or earthquake zone, then additional coverage shaI1 be obtained by Tenant in
amounts and in forms acceptable to Landlord. Tenant shall provide Landlord with
copies of such policies or certificates of such coverage, and the policy or
policies shall name Landlord and any mortgagee designated by Landlord as an
additional insured (or, if elected by Landlord, loss payee) and shall provide
that all losses shall be payable as herein provided. All such policies of
insurance shall provide that the amount thereof shall not be reduced and that
none of the provisions, agreements or covenants contained therein shall be
modified or cancelled by the insuring company or companies without thirty (30)
days prior written notice being given to Landlord; and that all insurance
proceeds shall be paid by check payable to Landlord. Such policy or policies of
insurance may also cover loss or damage to Tenant's Property, and the insurance
proceeds applicable to Tenant's Property shall not be paid to Landlord or any
mortgagee but shall accrue and be payable solely to Tenant. In the event of a
casualty, Tenant shall be responsible for any deficiency between the
replacement cost of the Premises and the amount actually paid by the insurance
company.
(c) Tenant shall maintain, at its own expense and as additional Rent, public
liability insurance and liquor liability insurance covering the Premises, for
the joint benefit of and insuring Tenant and Landlord, each with coverage of
not less than $2,000,000.00 per occurrence, with any deductible to be approved
by Landlord, and with a general aggregate limit of not less than
$10,000,000.00, per occurrence in excess of the general liability and liquor
liability coverages required above. Landlord (and if Landlord is either a
general or limited partnership, all general partners) shall be named as an
additional insured (or, if elected by Landlord, loss payee).
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All such policies of insurance shall provide that the amount thereof shall not
be reduced and that none of the provisions, agreements or covenants contained
therein shall be modified or canceled by the insuring company or companies
without thirty (30) days prior written notice being given to all parties to
this Lease. A copy of the policy or certificate of such insurance shall be
delivered to Landlord.
(d) Tenant shall maintain, at its own expense, business interruption insurance
for not less than six (6) months coverage for each occurrence, with any
deductible to be approved by Landlord. All such policies of insurance shall
provide that Landlord is additional insured (or, if elected by Landlord, loss
payee); and that the amount thereof shall not be reduced and that none of the
provisions, agreements or covenants contained therein shall be modified or
cancelled by the insuring company or companies without thirty (30) days prior
written notice being given to all parties to this Lease. A copy of the policy
or certificate of such insurance shall be delivered to Landlord.
(e) All insurance companies providing the coverage required under this
Paragraph 4 shall be selected by Tenant and shah be rated A minus (A-) or
better by Best's Insurance Rating Service, shall be licensed to write insurance
policies in the state in which the Premises is located, and shall be acceptable
to Landlord in Landlord's reasonable discretion.
5. MAINTENANCE AND REPAIR
(a) Tenant shall maintain the Premises and all buildings and improvements
thereon (interior and exterior, structural and otherwise) in good order and
repair and, subject to the provisions of paragraph 4(a) with respect to damage
within the last twenty-four (24) months of the Lease, and paragraph 6 herein,
return the Premises and all buildings and improvements thereon at the
expiration of the term of this Lease or any extension thereof in as reasonably
as good condition as when received, ordinary wear and tear excepted.
(b) Tenant agrees that Landlord shall have no obligation under this Lease to
make any repairs or replacements (including the replacement of obsolete
components) to the Premises or the buildings or improvements thereon, or any
alteration, addition, change, substitution or improvement thereof or thereto,
whether structural or otherwise. The terms "repair" and "replacement" include
the replacement of any portions of the Premises which have outlived their
useful life during the term of the Lease (or any extensions thereof). Landlord
and Tenant intend that the rent received by Landlord shall be free and clear of
any expense to Landlord for the construction, care, maintenance (including
common area maintenance charges and charges accruing under easements or other
agreements relating to the Premises), operation, repair, replacement,
alteration, addition, change, substitution and improvement of or to the
Premises and any building and improvement thereon. Upon the expiration or
earlier termination of this Lease, Tenant shall remain responsible for, and
shall pay to Landlord, any cost, charge or expense for which Tenant is
otherwise responsible for hereunder attributable to any period (prorated on a
daily basis) prior to the expiration or earlier termination of this Lease.
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6. CONDEMNATION
(a) In the event that the whole or any material part of the building on the
Premises or such a material portion of the land (for purposes hereof,
"material" shall mean more than 20% of the building on the Premises or more
than 40% of the land) shall be taken during the term of this Lease or any
extension or renewal thereof for any public or quasi-public use under any
governmental law, ordinance, regulation or by right of eminent domain, or shall
be sold to the condemning authority under threat of condemnation with the
result that the Premises cannot continue to be operated as the type of
restaurant contemplated herein or if all reasonable access to the adjacent
roadways from the existing or comparable curb cuts shall be taken (any of such
events being hereinafter referred to as a "taking"), Tenant shall have the
option of terminating this Lease as of a date no earlier than the date of such
taking, such termination date to be specified in a notice of termination to be
given by Tenant to Landlord not fewer than fourteen (14) days prior to the date
on which possession of the Premises, or part thereof, must be surrendered to
the condemning authority or its designee.
(b) In the event of any taking which does not give rise to an option to
terminate or in the event of a taking which does give rise to an option to
terminate and Tenant does not elect to terminate, Landlord shall make its award
available to Tenant and Tenant shall, to the extent of the award from such
taking (which word "award" shall mean the net proceeds after deducting expenses
of any settlement, or net purchase price under a sale in lieu of condemnation
but shall exclude the value of Landlord's reversionary interest), promptly
restore or repair the Premises and all improvements thereon (except the items
which Tenant is entitled to remove) to the same condition as existed
immediately prior to such taking insofar as is reasonably possible. If the
estimated cost of restoration or repair shall exceed the amount of Landlord's
award, Tenant shall deposit with Landlord the amount of such excess. The award
and any excess shall be held in trust by Landlord and used, to the extent
required, for the purpose of such restoration or repair. A just and
proportionate part of the Rent payable hereunder shall be abated from the date
of such taking until ten (10) days after Tenant has restored same and
thereafter the Rent shall be reduced in proportion to the reduction in the then
rental value of the Premises after the taking in comparison with the rental
value prior to the taking. If the award shall exceed the amount spent or to be
spent promptly to effect such restoration, repair or replacement, such excess
shall unconditionally belong to Landlord and shall be paid to Landlord.
(c) In the event of any partial taking where this Lease is not terminated,
Tenant shall not be entitled (except for use in reconstruction) to any part of
the compensation or award given Landlord for the taking of the fee of the
Premises, but Tenant shall have the right to recover from the condemning
authority such compensation as is specifically awarded to Tenant (i) to
reimburse Tenant for any cost which Tenant may incur in removing Tenant's
Property from the Premises and (ii) for loss of Tenant's business.
(d) If this Lease is terminated by reason of a taking , then Landlord shall be
entitled to receive the entire award in any such condemnation or eminent domain
proceedings or purchase in lieu thereof and Tenant hereby assigns to Landlord
all of its right, title and interest in and to all and any part of such award,
provided, however, Tenant shall be entitled to receive any award specifically
made to reimburse Tenant.
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7. TAXES AND ASSESSMENTS
Tenant shall pay prior to delinquency all taxes and assessments which may be
levied upon or assessed against the Premises and all taxes and assessments of
every kind and nature whatsoever arising in any way from the use, occupancy or
possession of the Premises or assessed against the improvements situated
thereon, together with all taxes levied upon or assessed against Tenant's
Property. To that end, Landlord shall not be required to pay any taxes or
assessments whatsoever which relate to or may be assessed against this Lease,
the Rent and other amounts due hereunder, the Premises, improvements and
Tenant's Property. Provided, however, that any taxes or assessments which may
be levied or assessed against the Premises for a period ending after the
termination hereof shall be prorated between Landlord and Tenant as of such
date. Within thirty (30) days after Tenant receives the paid receipted tax
bills, Tenant shall furnish Landlord with copies of a paid receipt for such tax
bills. Upon demand by Landlord, Tenant shall deliver-and pay over to Landlord
such additional sums as are necessary to satisfy any deficiency in the amount
necessary to pay the taxes before the same become due. Tenant may, at its
option, contest in good faith and by appropriate and timely legal proceedings
any such tax and assessment; provided, however, that Tenant shall indemnify and
hold harmless Landlord from any loss or damage resulting morn any such contest,
and all expenses of same (including,, without limitation, all attorneys' fees,
court and other costs) are paid solely by Tenant.
8. COMPLIANCE, UTILITIES, SURRENDER
(a) Tenant at its expense shall promptly comply with all governmental
requirements, whether or not compliance therewith shall require structural
changes in the Premises; will procure and maintain all permits, licenses and
other authorizations required for the use of the Premises or any part thereof
then being made and for the lawful and proper installation, operation and
maintenance of all equipment and appliances necessary or appropriate for the
operation and maintenance of the Premises, and shall comply with all easements,
restrictions, reservations and other instruments of record applicable to the
Premises. Tenant shall indemnify and save Landlord harmless from all expenses
and damages by reason of any notices, orders, violations or penalties filed
against or imposed upon the Premises, or against Landlord as owner thereof,
because of Tenant's failure to comply with this paragraph.
(b) Tenant shall pay all charges for heat, water, gas, sewage, electricity and
other utilities used or consumed on the Premises and shall contract for the
same in its own name. Landlord shall not be liable for any interruption or
failure in the supply of any such utility service to the Premises.
(c) Tenant shall peacefully surrender possession of the Premises, the buildings
and other improvements thereon, to Landlord at the expiration, or earlier
termination, of the original term or any extended or renewed term of this
Lease.
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9. QUIET ENJOYMENT
Landlord covenants and warrants that Landlord has full power and authority to
make this Lease, and that Tenant shall have and enjoy full, quiet and peaceful
possession of the Premises, their appurtenances and all rights and privileges
incidental thereto during the term hereof and any renewals or extensions,
subject to the provisions of this Lease and any easements, restrictions,
reservations and other instruments of record applicable to the Premises and in
existence at the time of the conveyance of the Premises to Landlord by Tenant.
10. OPTION TO RENEW
Tenant shall have two (2) successive ten (l0) year options to extend this Lease
for up to an additional twenty (20) years upon the same terms, covenants,
conditions and rental as setforth herein provided that Tenant is not in default
hereunder at the commencement of such option period. Tenant may exercise each
such ten (10) year option by giving written notice to Landlord not less than
six (6) months prior to the expiration of the then current term of this Lease.
Should Tenant fail to give Landlord such timely written notice during the
required period, all remaining rights of renewal shall automatically expire.
11. FIRST RIGHT OF REFUSAL TO PURCHASE; OPTION TO PURCHASE
(a) So long as Tenant is not in default under this Lease, Tenant shall have the
right to purchase the Premises in accordance with the terms of this paragraph.
If Landlord receives and desires to accept a bona fide offer to purchase
(excluding any transfer to an affiliate of Landlord) the Premises during the
term of this Lease or any extension or renewal thereof, Landlord shall serve a
notice on Tenant stating the name of such offeror with a copy of the terms and
conditions of such offer attached and Tenant shall have the right to purchase
the Premises on the same terms and conditions set forth in Landlords notice,
provided Tenant delivers written notice to Landlord of its election to do so
within twenty (20) days after receipt of such notice from Landlord. If Tenant
does not elect to exercise its right to purchase as aforesaid, Landlord may
sell the Premises, provided the sale is consummated with the offeror and on the
terms and conditions set forth in Landlord's notice to Tenant. The foregoing
preemptive right shall remain in existence notwithstanding its non-exercise in
respect to any sale and shall be binding upon Landlord's successors in title.
(b) Tenant shall have the option to purchase the Premises at any time after the
seventh (7th) Lease Year, as follows:
(i) Tenant shall exercise its option hereunder by giving written notice in
writing to Landlord in accordance with the requirements of paragraph 20 of this
Lease. At the time of the exercise of the option, Tenant shall also pay to
Landlord (or if required by Landlord, to the qualified intermediary described
in Paragraph 19(b) of this Lease Agreement) a non-refundable deposit of FIVE
HUNDRED AND NO/100 DOLLARS ($500.00).
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(ii) The purchase price to be paid by Tenant shall be the greater of (A) the
fair market value of the Premises as of the date of the exercise of the option,
as determined by an appraisal of an M.A.I. qualified appraiser selected by
Landlord, or (B) Landlord's cost for the Premises, plus Twenty percent (20%).
(iii) The closing pursuant to the option shall be held in the office of
Landlord's attorneys on or before a date which is thirty (30) days after
Landlord and Tenant have received the above-mentioned appraisal from the
appraiser, or at such other place as shall be acceptable to Landlord.
(iv) Tenant shall receive a credit for the deposit required under (i) above and
the balance of the purchase price shall be paid at closing in cash, by
cashier's check on cleared local funds or by wire transfer to Landlord's
account.
(v) All expenses of closing shall be paid by Tenant.
(vi) The option granted to Tenant pursuant to this subparagraph (b) may not be
exercised at any time while Tenant shall then be in default under any term or
condition of this Lease. The option granted to Tenant pursuant to this
subparagraph (b) shall terminate and become null and void in the event Tenant's
right of first refusal becomes operative, Tenant fails to exercise such right
of first refusal, and the offer triggering such right of first refusal closes.
(c) Tenant's rights and options granted in (a) and (b) above shall be subject
and subordinate to any rights or options currently of record or those existing
under Tenant's franchise agreement, if any.
12. NONCOMPETE
Tenant shall not own an interest in, or operate, another ROADHOUSE GRILL
Restaurant within a three (3) mile radius of the Premises. Violation of this
covenant shall constitute a default hereunder and, because the parties agree
that damages would not be an adequate remedy, Tenant hereby agrees that
Landlord shall be entitled to equitable relief, including injunctive relief and
specific performance in addition to any remedy available at law.
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13. DEFAULT
(a) If any one or more of the following events occur, said event or events
shall hereby be classified as a "Default":
(i) If Tenant fails to pay Interim Rent (if applicable), Annual Rent, any
additional rent, or any other charges required hereunder or under any other
lease with Landlord or an affiliate of Landlord when same shall become due and
payable, and such failure continues for ten (10) days after written notice from
Landlord.
(ii) If Tenant shall fail to perform or observe any term, condition, covenant,
agreement, or obligation of this Lease or any other lease with Landlord or an
affiliate of Landlord, and such failure continues for fifteen (15) days after
written notice from Landlord (except that such fifteen (15) day period shall be
automatically extended for such additional period of time as is reasonably
necessary to cure such Default, if such Default cannot be cured within such
period, provided Tenant is in the process of diligently curing the same).
(iii) If Tenant fails to continuously operate its business within the Premises
except for temporary periods of closure caused by casualty, or temporary and
reasonable periods of remodeling, not to exceed ninety (90) days in any Lease
Year without first obtaining Landlord's written approval, which shall not be
unreasonably withheld.
(iv) If Tenant shall make an assignment for the benefit of creditors or file a
petition, in any federal or state court, in bankruptcy, reorganization,
composition, or make an application in any such proceedings for the appointment
of a trustee or receiver for all or any portion of its property.
(v) If any petition shall be filed under federal or state law against Tenant in
any bankruptcy, reorganization, or insolvency proceedings, and said proceedings
shall not be dismissed or vacated within thirty (30) days after such petition
is tiled.
(vi) If a receiver or trustee shall be appointed under federal or state law for
Tenant, or any guarantor of Tenant's obligations hereunder, for all or any
portion of the property of either of them, and such receivership or trusteeship
shall not be set aside within thirty (30) days after such appointment.
(b) Upon the happening of any one or more of the aforementioned Defaults which
are not cured within the cure period applicable thereto, if any, Landlord shall
have the right, in addition to any other rights and remedies, to terminate this
Lease by giving written notice of same to Tenant. Upon such notice, this Lease
shall cease and expire, and Tenant shall surrender the Premises to Landlord.
Notwithstanding such termination, Tenant's liability and obligation under all
provisions of this Lease, including the obligation to pay Rent and any and all
other amounts due hereunder shall survive and continue. In addition, in the
event of Tenant's Default under this Lease, Landlord may, by notice to Tenant,
accelerate the monthly installments due hereunder for the remaining term of
this Lease, in which event such amount, together with any sums then in
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arrears, shall immediately be due and payable to Landlord. Tenant hereby
expressly agrees that its occupation of the Premises after default constitutes
forcible detainer (or equivalent) as is defined by the law in force in the
jurisdiction in which the Premises are located.
(c) If this Lease shall terminate as provided hereinabove, Landlord may reenter
the Premises and remove Tenant, its agents and sub-tenants, together with all
or any of Tenant's Property, by suitable action at law, or by force. Tenant
waives any right to the service of any notice of Landlord's intention to
reenter and Landlord shall not be liable in any way in connection with any
action it takes pursuant to this paragraph. Notwithstanding such re-entry or
removal, Tenant's liability under the provision of this Lease shall survive and
continue.
(d) In case of re-entry, repossession or termination of this Lease, Tenant
shall remain liable for Rent, any additional rent and all other charges
provided for in this Lease for the otherwise remaining term of this Lease, and
any and all expenses which Landlord may have incurred in re-entering the
Premises including, but not limited to, allocable overhead, alterations to
building, leasing, construction, architectural, legal and accounting fees. In
addition, Tenant shall pay to Landlord any and all attorneys' fees, legal costs
and expenses incurred with respect-to enforcement of the provisions hereof.
Landlord shall have the right, but not the obligation, to relet the whole or
part of the Premises upon terms which Landlord, in its sole discretion, deems
appropriate and Tenant shall be responsible for all expenses incurred by
Landlord in re-letting or attempting to re-let and all rent collected for
reletting shall be credited against all of Tenant's obligations hereunder.
(e) The rights and remedies of Landlord set forth herein shall be in addition
to any other right and remedy now or hereinafter provided by law, and all such
rights and remedies shall be cumulative. No action or inaction by Landlord
shall constitute a waiver of a Default, and no waiver of Default shall be
effective unless it is in writing, signed by Landlord.
14. HOLDING OVER
In the event Tenant remains in possession of the Premises after the expiration
of this Lease, without executing a new lease, Tenant shall occupy the Premises
as a tenant from month to month subject to all the terms hereof, but such
possession shall not limit Landlord's rights and remedies by reason thereof nor
constitute a holding over.
15. WAIVER OF SUBROGATION
Notwithstanding anything in this Lease to the contrary, other than Tenant's
obligations to repair, restore or rebuild described in paragraph 4 hereinabove,
neither party shall be liable to the other for any damage or destruction of the
property of the other resulting from fire or other casualty covered by
insurance required of either party hereunder, whether or not such loss, damage
or destruction of property is caused by or results from the negligence of such
party (which term includes such party's officers, employees, agents and
invitees), and each party hereby expressly releases the other from all total
liability for or one account of any said loss, damage or destruction, whether
or not the party suffering the loss is insured against such loss, and if
insured
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whether fully or partially. Each party shall procure all endorsements of
insurance policies carried by it necessary to protect the other from any right
of subrogation and/or liability in the event of such loss.
16. LIEN FOR RENTS
As security for Tenant's payment of Rent and all other payments required to be
made by Tenant hereunder (including, by way of illustration only, taxes, damage
to the Premises, court costs, and attorneys' fees) Tenant hereby grants to
Landlord a lien upon all of Tenant's Property now or hereafter located upon the
Premises. The lien herein provided shall be subordinate to the lien of any
chattel mortgage, collateral assignment or security interest given by Tenant to
any seller of such property. If default is made by Tenant in the payment of any
sum which may become due hereunder and said sum is not paid within ten (10)
days after written notice is given by Landlord to Tenant for Tenant's default,
Landlord may enter upon the Premises and take possession of Tenant's Property,
or any part thereof, and may sell all or any part of Tenant's Property at
public or private sale in one or successive sales, with or without notice, to
the highest bidder for cash and on behalf of Tenant. Landlord may sell and
convey Tenant's Property, or any part thereof, to such bidder, delivering to
such bidder all of Tenant's title and interest in such property sold to him.
The proceeds of such sale shall be applied by Landlord toward the costs thereof
and then toward the payment of all sums when due by Tenant to Landlord
hereunder.
17. ASSIGNMENT AND SUBLETTING
(a) The Tenant shall not have the right, without first obtaining Landlords
prior written consent which will not be unreasonably withheld, to assign or
sublet any part or all of the Premises to any party for any purpose. A change
in ownership of the controlling interest of Tenant shall also constitute an
assignment subject to this subparagraph. Landlord, without being deemed
unreasonable, may withhold its consent to any proposed assignment or subletting
where (i) the financial capacity of such assignee or subtenant is materially
less than that of Tenant or (ii) such assignee or subtenant does not intend to
operate a national or regionally recognized restaurant on the Premises or (iii)
even if such assignee or subtenant intends to operate a restaurant on the
Premises, the type of restaurant or the operating history of such assignee or
subtenant or the operating history of such type of restaurant reflects an
inability to generate Gross Sales (as such term is defined in the Rent
Addendum) and potential sales growth equal to or greater than that of the
Tenant. Even if such consent to assignment or subletting is given by Landlord,
such assignment or subletting shall not relieve Tenant of its liability for the
continued performance of all terms, covenants and conditions of this Lease,
including without limitation the payment of all rent, additional rent and other
charges thereunder. Likewise, as a condition of any such assignment by Tenant,
the assignee shall be required to execute and deliver to Landlord, upon the
effective date of such assignment, an agreement, in recordable form, whereby
such assignee assumes and agrees to discharge all obligations of Tenant under
this Lease.
(b) In the event of the subletting or assignment of this Lease, any monetary
consideration obtained from an assignee or transferee upon such subletting or
assignment shall be paid to Landlord. In the event of the subletting or
assignment of this lease, if Tenant derives funds or
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rental income greater than what it is paying to Landlord under this Lease, the
Annual Rent provided for herein shall be increased to that amount received by
Tenant from sublessee or assignee of this Lease.
(c) Prior to any assignment allowed hereunder, Tenant shall deliver to Landlord
(i) a copy of the assignment documents (including copies of any recorded
documents), and (ii) the name, address and telephone number of such assignee
and a designated contact person for such assignee, and (iii) a new insurance
policy and binder complying with the terms of this Lease and naming such
assignee as the tenant of the Premises. Notwithstanding anything herein to the
contrary, in the event of any assignment of this Lease or subletting of the
Premises, Tenant shall not be released from its obligations under this Lease
unless specifically released by virtue of a separate written instrument
executed by Landlord, which may be withheld in Landlord's sole discretion.
(d) The Landlord shall have the right without limitation (subject to paragraph
11 hereof) to sell, convey, transfer or assign its interest in the Premises or
its interest in this Lease, and upon such conveyance being completed all
covenants and obligations of Landlord under this Leases accruing thereafter
shall cease, but such covenants and obligations shall run with the land and
shall be binding upon the subsequent landlord or owners of the Premises or of
this Lease.
18. SUBORDINATION, NON-DISTURBANCE, ATTORNMENT, ESTOPPEL CERTIFICATE.
(a) Upon written request of the holder of any mortgage (which term "mortgage"
shall also include deeds of trust) now or hereafter relating to the Premises,
Tenant will subordinate its rights under this Lease to the lien thereof and to
all advances made or hereafter to be made upon the security thereof, and Tenant
shall execute, acknowledge and deliver an instrument in the form customarily
used by such encumbrance holder to effect such subordination; provided,
however, as a condition of all such subordinations, the holder of such mortgage
shall be first required to agree with Tenant that, notwithstanding the
foreclosure or other exercises of rights under any such first or other
mortgage, Tenant's possession and occupancy of the Premises and the
improvements and its leasehold estate shall not be disturbed or interfered with
nor shall Tenant's rights and obligations under this Lease be altered or
adversely affected thereby so long as Tenant is not in default hereunder.
(b) Notwithstanding anything set out in subparagraph (a) above to the contrary,
in the event the holder of any such mortgage elects to have this Lease be
superior to its mortgage, then upon Tenant's being notified to that effect by
such encumbrance holder, this Lease shall be deemed prior to the lien of said
mortgage, whether this Lease is dated prior or subsequent to the date of said
mortgage, and Tenant shall execute, acknowledge and deliver an instrument, in
the form customarily used by such encumbrance holder, effecting such priority.
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(c) In the event proceedings are brought for then foreclosure of, or in the
event of the exercise of the power of sale under any mortgage made by Landlord
covering the Premises, or in the event of delivery of a deed in lieu of
foreclosure under such a mortgage Tenant will attorn to the purchaser upon any
such foreclosure or sale and recognize such purchaser as Landlord under this
Lease, and upon the request of the purchaser, Tenant shall execute, acknowledge
and deliver an instrument, in form and substance satisfactory to such
purchaser, evidencing such attornment.
(d) Each party agrees, within seven (7) days after written request by the
other, to execute, acknowledge and deliver to and in favor of any proposed
mortgagee or purchaser of the Premises, an estoppel certificate, in the form
customarily used by such proposed mortgagee or purchaser, stating, among other
things (i) whether this Lease is in full force and effect, (ii) whether this
Lease has been modified or amended and, if so, identifying and describing any
such modification or amendment, (iii) the date to which Rent and other charges
have been paid, and (iv) whether the party furnishing such certificate knows of
any default on the part of the other party or has any claim against such party
and, if so, specifying the nature of such default or claim.
(e) Upon written demand by the holder of any mortgage covering the Premises,
Tenant shall forthwith execute, acknowledge and deliver an agreement in favor
of and in the form customarily used by such encumbrance holder, by the terms of
which Tenant will agree to give prompt written notice to such encumbrance
holder in the event of any casualty damage to the Premises or in the event of
any default on the part of Landlord under this Lease, and will agree to allow
such encumbrance holder a reasonable length of time after notice to cure or
cause the curing of such default before exercising Tenant's rights under this
Lease, or terminating or declaring a default under this Lease.
19. COOPERATION
(a ) Landlord shall fully cooperate with Tenant throughout the term of this
Lease to secure or maintain proper zoning, building and other permits and
compliance with all applicable laws. Landlord shall execute any petitions,
requests, applications and the like as Tenant shall reasonably request in order
to obtain any permit, license, variances and approvals which, in the reasonable
judgment of Tenant, are necessary for the lawful construction and/or operation
of Tenant's business on the Premises, provided, however, that Tenant shall
indemnify and save Landlord harmless from any and all expenses, costs, charges,
liabilities, losses, obligations, damages and claims of any type which may be
imposed upon, asserted against or incurred by Landlord by reason of same.
(b) In the event that Tenant elects to purchase the Premises pursuant to the
terms and conditions of paragraph 11 hereof, Landlord shall have the right, in
Landlords sole discretion, to enter into an exchange agreement (the "Exchange
Agreement") with a qualified intermediary (the "Intermediary") in order to
effectuate a like-kind exchange of the Premises for one or more other
properties (the "Replacement Property"). In that event, Landlord shall assign
to the Intermediary all of Landlords right, title and interest in the written
contract for purchase and sale
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of the Premises entered into between Landlord and Tenant as required by
paragraph I1 hereof (the "Purchase Contract"), and any deposit paid by Tenant
in connection with the purchase of the Premises shall be placed directly with
the Intermediary, subject to the terms and conditions of the Purchase Contract
and the Exchange Agreement. Landlord and Tenant agree that, at Landlord's
option, Tenant shall cooperate with Landlord in effecting a like-kind exchange
of the Premises by Landlord pursuant to and in accordance with the provisions
of Section 1031 of the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder, which cooperation shall include,
without limitation, Tenant's consent to Landlords assignment of its interest in
the Purchase Contract to the Intermediary and Tenant receiving or taking title
to the Premises from the Intermediary or another third party utilized in the
transaction in order to facilitate the like-kind exchange on behalf of
Landlord.
20. NOTICES
All notices and other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by a nationally recognized
overnight courier or mailed by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
If to Landlord: CNL APF PARTNERS, LP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Lowndes, Drosdick, Doster, ▇▇▇▇▇▇ & ▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Post Office Box 2809
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Tenant: ROADHOUSE GRILL INC., a Florida corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Any party may change its address for notices by written notice in like manner
as provided in this paragraph and such change of address shall be effective
seven (7) days after the date notice of such change of address is given. Notice
for purposes of this Lease shall be deemed given when it shall have been
deposited in the mail, or with a nationally recognized over-night courier, by
the party who is giving such notice with sufficient postage prepaid.
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21. INDEMNIFICATION
Tenant does hereby indemnify and exonerate Landlord against and from all
liabilities, losses, obligations, damages, penalties, claims, costs, charges
and expenses, including reasonable architects' and attorneys' fees, which may
be imposed upon or asserted against or incurred by Landlord by reason of any of
the following occurring:
(a) any work or thing done in respect of construction of, in or to the Premises
or any part of the improvements now or hereafter constructed on the Premises;
(b) any use, possession, occupation, operation, maintenance or management of
the Premises or any part thereof;
(c) any failure to, or to properly, use, possess, occupy, operate, maintain or
manage the Premises or any part thereof;
(d) the condition, including environmental conditions, of the Premises or any
part thereof;
(e) any negligence on the part of Tenant or any of its agents, contractors,
servants, employees, licensees or invitees;
(f) any accident, injury or damage to any person or property occurring in, on
or about the Premises or any part thereof including any sidewalk adjacent
thereto; or
(g) any failure on the part of Tenant to perform or comply with any of the
covenants, agreements, terms or conditions contained in this Lease on its part
to be performed or complied with.
22. HOLD HARMLESS
Tenant agrees to hold Landlord harmless against any and all claims, damages,
accidents and injuries to persons or property caused by or resulting from or in
connection with anything in or pertaining to or upon the Premises during the
term of this Lease or while Tenant is occupying the Premises, except if such
claim, damage, accident or injury shall be caused by the negligence of Landlord
or its agents. Landlord shall not be liable to Tenant, Tenant's employees,
agents, invitees, licensees or any other person whomsoever for any injury to
person or damage to property on or about the Premises caused by the negligence
or misconduct of Tenant, its agents, servants or employees or of any other
person entering the building under expressed or implied invitation by Tenant or
due to any other cause whatsoever, unless caused by the negligence or neglect
of Landlord, its employees or its authorized representatives.
23. LANDLORD'S LIABILITIES
The term "Landlord" as used in this Lease means the owner from time to time of
the Premises. Neither Landlord nor any partner, shareholder or beneficiary
thereof shall have any personal
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liability with respect to any of the provisions of this Lease and if Landlord
is in default with respect to its obligations hereunder Tenant shall look
solely to the equity of Landlord in the Premises.
24. SUCCESSORS
The covenants, conditions and agreements contained in this Lease shall bind and
inure to the benefit of the Landlord and Tenant and their respective heirs,
legal representatives, successors and assigns.
25. ENTIRE AGREEMENT/MEMORANDUM OF LEASE
This Lease contains the entire agreement between the parties hereto and may not
be modified in any manner other than in writing signed by the parties hereto or
their successors in interest. A memorandum of this Lease shall be executed by
the parties and shall be recorded in the official records of the county where
the Premises are located.
26. GENDER
Whenever the context hereof permits or requires, words in the singular may be
regarded as in the plural and vice-versa, and personal pronouns may be read as
masculine, feminine and neuter.
27. BROKERAGE FEES
It is understood and agreed that neither party has incurred any real estate
brokerage fees or commissions arising out of this Lease and each party agrees
to hold the other harmless from and against all such fees and commissions
incurred, and costs related thereto including legal fees, as a result of its
own conduct or alleged conduct.
28. CAPTIONS
The captions of this Lease are for convenience only, and do not in any way
define, limit, disclose, or amplify terms or provisions of this Lease or the
scope or intent thereof.
29. LANDLORD'S RIGHT TO CURE
In the event Tenant shall fail, refuse or neglect to perform, observe or comply
with any term, condition, covenant, agreement or obligation contained in the
Lease on its part to be performed or complied with, then Landlord may, at its
sole option, enter upon the Premises, if deemed necessary by Landlord in its
sole discretion, and/or do whatever may be deemed necessary by Landlord in its
sole discretion to cure such failure by Tenant. Tenant shall pay to Landlord
within five (5) days of Landlord's request, all costs incurred by Landlord in
connection with Landlord's curing of such failure by Tenant including, but not
limited to, reasonable attorney and paralegal fees whether or not judicial
proceedings are involved. In addition to the above costs, in the event Landlord
does not receive payment from Tenant when due hereunder, interest at the
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rate of eighteen percent (18%) per annum or, if less, the highest rate
allowable by law shall be due and payable with respect to such payment from the
due date thereof until Landlord receives such payment.
30. COMMITMENT LETTER
That certain commitment letter dated April 23, 1998 is hereby incorporated
herein by reference and the terms and conditions thereof shall survive closing
with respect to the transaction contemplated by this Lease. In the event any
terms of the commitment letter are inconsistent with the terms contained in
this Lease, the terms of this Lease shall control.
31. NOT A SECURITY ARRANGEMENT
The parties hereto agree and acknowledge that this transaction is not intended
as a security arrangement or financing secured by real property, but shall be
construed for all purposes as a true lease.
32. NET LEASE
It is the intention of the parties hereto that this Lease is and shall be
treated as a triple net lease. Any present or future law to the contrary
notwithstanding, this Lease shall not terminate (except as expressly provided
in paragraph 4(a)) nor shall Tenant be entitled to any abatement, suspension,
deferment, reduction (except as expressly provided in paragraph 6(b) hereof),
setoff, counterclaim, or defense with respect to the rent, nor shall the
obligations of Tenant hereunder be affected by reason of: any damage to or
destruction of the Premises or any part thereof; any taking of any Premises or
any part thereof or interest therein by Condemnation or otherwise (except as
expressly provided in paragraph 6(b) hereof); any prohibition, limitation,
restriction or prevention of Tenant's use, occupancy or enjoyment of the
Premises or any part thereof, or any interference with such use, occupancy or
enjoyment by any person or for any other reason; any title defect or
encumbrance or any matter affecting title to the Premises or any part thereof;
any eviction by paramount title or otherwise; any default by Landlord
hereunder; any proceeding relating to Landlord; the impossibility or illegality
of performance by Landlord, Tenant or both; any action of governmental
authority; any breach of warranty or misrepresentation; any defect in the
condition, quality or fitness for use of the Premises or any part thereof; or
any other cause whether similar or dissimilar to the foregoing and whether or
not Tenant shall have notice or knowledge of any of the foregoing. The parties
intend that the obligations of Tenant hereunder shall be separate and
independent covenants and agreements and shall continue unaffected unless such
obligations shall have been modified or terminated in accordance with an
express provision of this Lease.
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33. WAIVER
No waiver by Landlord of any provision hereof shall be deemed a wavier of any
other provision hereof or of any subsequent breach by Tenant of the same or any
other provision. Landlords's consent to, or approval of, any act shall not be
deemed to render unnecessary the obtaining of Landlord's consent to or approval
of any subsequent act by Tenant. The acceptance of rent hereunder by Landlord
shall not be a waiver of any preceding breach by Tenant of any provision
hereof, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
34. TIME OF THE ESSENCE
Landlord and Tenant agree that time shall be of the essence of all terms and
provisions of this Lease.
35. GOVERNING LAW
This Lease shall be construed in accordance with the laws of the state in which
the Premises is located.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be
executed the day and date first above written.
"LANDLORD"
Signed, Sealed and Delivered
in the presence of: CNL APF PARTNERS, LP, a
Delaware limited partnership
BY: CNL APF GP CORP., a
Delaware corporation, as general
partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as President
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 3rd day of September,
1998, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as President of CNL APF GP CORP., a Delaware
corporation, as General Partner of CNL APF PARTNERS, LP, a Delaware limited
partnership, on behalf of the corporation and limited partnership. He is
personally known to me and did not take an oath.
Printed Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of Florida
Commission Number: CC478289
My Commission Expires: July 6, 1999
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"TENANT"
ROADHOUSE GRILL, INC., a
Florida corporation
By: ▇▇▇▇▇▇ ▇▇▇▇▇
As its: CFO
The foregoing was executed before me on September 3, 1998, by ▇▇▇▇▇▇ ▇▇▇▇▇, as
CFO of ROADHOUSE GRILL, INC., a Florida corporation, on behalf of the
corporation. He/she is personally known to me or produced _________ as
identification and did not take an oath.
Printed Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Notary Public, State of Florida
Commission Number: CC746620
My Commission Expires: May 31, 2002
(NOTARY SEAL)
-▇▇-
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
CONSTRUCTION ADDENDUM
THIS CONSTRUCTION ADDENDUM, executed as of September 15 1998, by and
between CNL APF PARTNERS, LP, a Delaware limited partnership with principal
office and place of business at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ("Landlord"), and ROADHOUSE GRILL, INC., a Florida corporation, with a
mailing address of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ("Tenant"), is attached to and made a part of that certain Lease Agreement
by and between Landlord and Tenant of even date herewith (the "Lease").
PRELIMINARY STATEMENT
Landlord has acquired the real property described in Exhibit "A"
attached to the Lease which constitutes a portion of the Premises and has leased
the same to Tenant under the terms of the Lease. Landlord desires to construct
or have constructed certain improvements on the Premises and is entering into
this Construction Addendum with Tenant for the purpose of setting forth the
terms and conditions under which Tenant shall serve as developer in connection
with the Project (as that term is defined hereinbelow). NOW, THEREFORE, it is
agreed, by and between the parties hereto as follows:
1. DEFINITIONS. Capitalized terms used in the Lease shall have the
same meaning in this Construction Addendum unless otherwise defined. In addition
to those terms defined elsewhere in this Construction Addendum, as used herein
the following terms shall have the meaning indicated:
"Project" shall mean construction of the building- and all necessary
site improvements on the Premises for the initial use as a ROADHOUSE GRILL
Restaurant by Tenant who is Tenant under the Lease. Such building and
improvements shall be completed in accordance with the plans and specifications
approved by Landlord and Tenant prior to Landlord's acquisition of the Premises,
which approval shall not be unreasonably withheld, delayed or conditioned.
"Construction Period" shall mean the period beginning on the Effective
Date and ending on the earliest of (i) one hundred eighty (180) days after the
Effective Date; (ii) the date a certificate of occupancy for the Premises is
issued; (iii) the date the ROADHOUSE GRILL Restaurant opens for business on the
Premises; and (iv) the date Tenant receives from Landlord its final funding of
the construction costs for the Project under this Construction Addendum.
2. AUTHORIZATION. INDEPENDENT CONTRACTOR. Landlord hereby engages
Tenant as an independent contractor and authorizes Tenant to enter upon the
Premises and to undertake
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responsibilities, duties, obligations, rights and authority expressly herein set
forth and, subject to the provisions hereof, Tenant hereby accepts such
appointment and agrees to perform and fully discharge all of its duties,
responsibilities and obligations herein set forth diligently, promptly and in
full compliance with the provisions hereof.
3. CO-TENANT AND SUB-AGENTS. Tenant may delegate the performance of any
of its responsibilities hereunder to one or more contractors, subcontractors,
consultants, co-developers or sub-agents; provided, however, that no such
delegation shall relieve Tenant of its duties, responsibilities and obligations
hereunder. responsibilities, responsibilities, duties, obligations, rights and
authority expressly herein set forth and, subject to the provisions hereof,
Tenant hereby accepts such appointment and agrees to perform and fully discharge
all of its duties, responsibilities and obligations herein set forth diligently,
promptly and in full compliance with the provisions hereof.
4. SPECIFIC DUTIES AND OBLIGATIONS. Tenant shall be responsible for the
complete development and construction of the Project and shall deliver a
turn-key facility to Landlord. In that connection, Tenant's duties, obligations
and responsibilities include, but shall not be limited to the following:
(a) PROJECT DESIGN. Procuring all necessary architectural and
engineering services related to the site work, design and engineering related to
the Project, any and all engineering and impact studies or reports related to
the development of the Project, and processing and obtaining all required
Governmental approvals.
(b) LICENSES AND PERMITS. Obtaining all licenses, permits and
approvals required to prepare the site for development, to permit construction
of the Project and to operate it for its intended purposes. Such licenses,
permits and approvals shall include, but shall not be limited to, water
management district approvals, approvals required under any franchise agreement,
financing agreement or any instrument of record, building, permits, certificates
of occupancy, and any other required Governmental consents or approvals. The
building permit must be obtained within one hundred eighty (180) days of the
Effective Date.
(c) GENERAL CONTRACTOR, CONSTRUCTION CONTRACTS AND PURCHASE
ORDERS. Negotiating, all necessary construction contracts, for the benefit of
Landlord, relating, to the development and construction of the Project. All
construction contracts and purchase orders for work, material or equipment shall
be entered into between Tenant and the contractors or vendors selected and shall
be satisfactory in form and substance to Landlord, Tenant and legal counsel for
Landlord and Tenant, including a payment and performance bond from the general
contractor by a surety company or companies which are acceptable to Landlord in
the amount of the general construction contract. The general construction
contract and construction/trade cost breakdown shall be approved by Landlord
prior to Landlord's purchase of the property. The general construction contract
shall contain provisions for a ten percent (10%) retainage and submission to
Landlord of all underlying contracts with and invoices (required only if a
cost-plus contract) from rnaterialmen and subcontractors. All change orders to
such contract must be approved in writing by Landlord. Tenant shall cause its
general contractor to submit (and the general construction contract shall so
provide) all subcontracts to Landlord prior to commencement of construction.
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(d) CONSTRUCTION COORDINATION. Coordinating all aspects of
construction of the Project to completion. Tenant shall monitor the progress of
construction and the compliance by all contractors with the provisions of their
construction contracts, through periodic on-site visits and inspections and
through written and other reports from the architect, contractors and other
construction supervisory personnel. Tenant shall keep Landlord advised from time
to time of the progress of construction. Tenant shall review and approve all
contractor and other payment requests made from time to time and shall review
all such requests to ensure compliance with the construction contract and the
terms hereof. Tenant shall determine which, if any, contractor or subcontractor
is in default under the provisions of its applicable contract or subcontract,
and what measures should be taken in connection therewith.
(e) FUNDING. Financing to be provided by Landlord hereunder
shall be limited to all actual "hard" construction costs of the Project together
with approved "soft" costs (to the extent set forth herein), exclusive of any
developer's fee. "Soft" costs submitted by Tenant for inclusion in the Total
Cost shall not include any internal overhead cost of Tenant or internal profit,
but may include fees incurred in connection with the construction financing
costs and construction services provided by an entity unrelated to Tenant and
acceptable to Landlord. "Hard" construction costs are limited to site
improvement costs, building structure, doors, wall and floor tile, windows, drop
ceiling, plumbing, electrical and HVAC. "Hard" construction costs shall not
include signs, all covering, other than tile, counters, floor covering (other
than tile), or any other items which may be financed as "equipment." Landlord's
funding shall be disbursed to Tenant monthly against draw requests submitted by
Tenant to Landlord. Each such draw request shall be submitted on AIA, Forms
G-702 and G-703 (or other forms approved by Landlord), shall be prepared in
accordance with Landlord's instructions and shall be received by Landlord no
later than the twenty-fifth (25th) day of each month. Each draw request shall be
accompanied by all supporting documentation required by Landlord (including
partial lien waivers from the general contractor and all subcontractors waiving
all lien rights through the date of the last draw request, and copies of
invoices for "soft" costs which may be reimbursable). If properly prepared and
documented requests are received by the twenty-fifth (25th) day of a month,
Landlord shall pay proper amounts reflected in such request by the tenth (10th)
day of the following month. The funds to be advanced by Landlord pursuant to
this Construction Addendum shall at no time in the aggregate exceed
$1,811,746.89 (the "Funding Limitation"), minus the purchase price Landlord paid
at closing for the acquisition of the Premises, including Landlord's acquisition
costs and closing costs. Tenant shall be solely responsible for the full and
timely payment of any and all costs of developing the Project which exceed the
Funding Limitation determined hereinabove. If, at any time after the date
hereof, there exists any unpaid costs in excess of the Funding Limitation, then
Landlord shall have the right to immediately stop funding under this
Construction Addendum until such time as Tenant has funded such excess costs and
has provided Landlord with evidence that such excess costs have been paid in
fall by Tenant. Tenant shall obtain no construction financing for the Project
which is secured by a lien on the Project. Construction financing shall not
include equipment financing.
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(f) GENERAL CONSTRUCTION MATTERS. Tenant shall commence
construction as soon as practicable after the date hereof and, after
commencement and subject to Paragraph 8 hereinbelow, shall diligently complete
the Project within one hundred eighty (180) days thereafter in a first-class,
workmanlike manner and in conformity with all applicable governmental laws,
ordinances, rules, orders, regulations and other requirements and in substantial
compliance with the plans and specifications approved by Landlord, Tenant's
franchisor and the final working drawings. Notwithstanding the foregoing,
Landlord agrees to consider reasonable written requests from Tenant for
extensions of time to complete the Project beyond the one hundred eighty (180)
day period.
All of Tenant's records pertaining to the construction of the
Project shall be available for inspection and copying by Landlord and its agents
and employees during normal business hours. Following completion of the Project,
Tenant shall execute such documents and instruments as Landlord may request (in
form and substance reasonably satisfactory to Landlord and Tenant) to evidence
Landlord's ownership of and title to all improvements on the Premises
comprising, in the aggregate, the Project and shall assign to Landlord all
warranties relating to the work and/or materials performed at or incorporated
into the Project.
Tenant shall as part of the construction and development work
engage an inspecting architect or engineer suitable to Landlord to make monthly
inspections and to certify all draw requests to Landlord. Such certification
shall include a statement of work done if not reasonably ascertainable from the
draw request and shall be accompanied by color photographs in no less than 3
1/2" by 5" formats showing the construction work completed as of the inspection
date. Such photographs shall be taken from such vantage points as are required
to clearly show all work done and once vertical construction has commenced shall
show all elevations. The final draw request shall be accompanied by: (1) the
contractor's affidavit of completion and proof of payment of all subcontractors
and all materialmen; (2) an assignment of all manufacturer's warranties for any
material, equipment or workmanship installed as a part of the Project; (3) an
ALTA as-built survey of completed Project certified to Landlord and Tenant, and
any title company designated by Landlord; (4) Certificate(s) of Occupancy for
the Project issued by the appropriate regulatory agencies; and (5) a complete
certified final set of plans, specifications and working drawings for the
Project as completed. At the time such draw request is submitted to Landlord,
Landlord shall order or cause to be ordered an update search or endorsement to
its title insurance policy for the Premises, which must show no additional
matters of record through a then current date (except for matters which have
been previously accepted by Landlord).
No approvals or inspections made, given or conducted by Landlord shall
relieve Tenant of any duties, responsibilities, obligations or liabilities
hereunder.
5. DEVELOPMENT FEE. Neither Tenant nor any affiliate shall receive a
development or construction supervision fee for its services hereunder. A
licensed general contractor shall be entitled to reasonable, normal and
customary overhead and profit in connection with the performance
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of its services under a general construction contract. Said profit shall include
reasonable, normal and customary superintendent compensation.
6. GENERAL. With respect to matters not specifically related to the
Premises or its development, this Construction Addendum shall be governed by the
laws of the state where the Premises is located. All captions and section
headings used herein are for convenience and ease of reference only and do not
constitute part of this instrument. The Preliminary Statement set forth at the
beginning of this Construction Addendum is hereby incorporated herein by
reference and is deemed to constitute an integral part of this instrument.
7. LANDLORD'S RIGHT TO COMPLETE CONSTRUCTION ON TENANT'S DEFAULT.
Except for delays caused by events not within the control of Tenant, failure to
continuously prosecute to completion the construction of the Project within two
hundred seventy (180) days following the date hereof shall constitute a default
by Tenant hereunder. If, after ten (10) days notice to Tenant, any such default
shall not have been remedied, then Landlord may, if it elects to do so, either:
(a) take over construction of the Project and, at its option, complete such
construction or cause the same to be completed, or (b) terminate the Lease and
this Construction Addendum, in which case Tenant shall be required to purchase
the Premises from Landlord (subject to all liens, claims or encumbrances not
placed on the Premises by Landlord) at a price equal to Landlord's purchase
price of the Premises, plus all sums disbursed to Tenant pursuant to this
Construction Addendum, plus all Interim Rent due under the Lease, plus all fees,
costs and expenses paid by Landlord in connection with its purchase of the
Premises, plus interest on all such sums accruing, from the date of disbursement
thereof at the rate of ten percent (10%) per annum. Closing of such purchase and
sale shall take place within thirty (30) days following the date of Landlord's
notice of default to Tenant.
8. FORCE MAJEURE. The time for completion of the Project shall be
extended by the period of time, if any, that construction is delayed by virtue
of labor unrest, materials shortage, natural disaster, weather, Acts of God, and
other causes beyond the reasonable control of Tenant; provided, however, that no
such extension shall be permitted with respect to any delay unless written
notice of the delay specifying the cause of the delay and the expected time of
the delay is delivered to Landlord within fifteen (15) days after such delay is
encountered.
9. ENTIRE AGREEMENT. This Construction Addendum and the Lease of which
this Construction Addendum is a part constitute the entire agreement of Landlord
and Tenant with respect to the development of the Premises, and supersedes any
prior or contemporaneous agreement with respect thereto. No amendment or
modification of this Construction Addendum shall be binding, upon the parties
unless made in writing and signed by both Landlord and Tenant.
[Signatures on Next Page]
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Construction
Addendum to be executed and sealed as of the date first above written.
"LANDLORD"
Signed, Sealed and Delivered CNL APF PARTNERS, LP, a Delaware
in the presence of: limited partnership
BY: CNL APF GP CORP., a Delaware
corporation, as general partner
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as President
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 3rd day of
September 1998, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as President of CNL APF GP CORP., a
Delaware corporation, as General Partner of CNL APF PARTNERS, LP, a Delaware
limited partnership, on behalf of the corporation and limited partnership. He is
personally known to me and did not take an oath.
Notary Signature
Printed Name
Notary Public, State of Florida
Commission Number:_________________
My Commission Expires:_____________
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Commission Number CC478289
Expires July 6, 1999
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"TENANT"
ROADHOUSE GRILL, INC., a Florida
corporation
By:
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
As Its: CFO
STATE OF FLORIDA
COUNTY OF BROWARD
The foregoing was executed before me on September 3, 1998 by ▇▇▇▇▇▇
▇▇▇▇▇ as CFO of ROADHOUSE GRILL, INC., a Florida corporation, on behalf of the
corporation. He/She is personally known to me or produced ________________ as
identification and did not take an oath.
(NOTARY SEAL)
Printed Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Notary ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇
Expires: MAY 31, 2002
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