EXHIBIT 6.5CE
VALLEY RANCH LEASE
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GROUND LEASE
THIS LEASE ("Lease") is made and entered into this day of , 1996
("Effective Date") by and between MacArthur Partners, Ltd. (hereinafter called
"Landlord") and Fresh 'N Lite, Inc. (hereinafter called "Tenant").
1. DEMISED PREMISES: Landlord, for and in consideration of the covenants
hereinafter contained and made on the part of the Tenant, does hereby demise and
lease unto Tenant, and Tenant does hereby lease from Landlord, the parcel of
land ("Land") which is located in Irving, County of Dallas, State of Texas,
containing approximately 36,000 square feet, not including roads or public right
of ways, being more particularly described in Exhibit A attached hereto and made
a part hereof, together with and subject to Landlord's easement rights and
appurtenances thereto, together with and subject to the rights of ingress,
egress and parking over, across and upon the Land for the entire term of this
Lease, and all improvements now located thereon, and all easements and
appurtenances in Landlord's adjoining and adjacent land, highways, roads,
streets, lanes, whether public or private, reasonably required for the
installation, maintenance, operation and service of sewers, water, gas,
drainage, electricity and other utilities and for drive-ways and approaches to
and from abutting highways for the use and benefit of the above described parcel
of real estate including the improvements to be erected thereon (the Land,
together with the improvements to be erected thereon are sometimes referred to
herein collectively as the "Premises"). Tenant acknowledges that it is leasing
the Land subject to all easements, including any of record, for rights of
ingress, egress and parking over, across and upon the Land for the benefit of
all adjoining landowners. Tenant will be doing business as Fresh N' Lite Cafe
and Grill.
2. LEASE TERM:
a. Primary Term. The term of this Lease shall commence on the Effective
Date and end on the last day of the month in which the twentieth anniversary of
the Rent Commencement Date occurs. As used herein the term "Rent Commencement
Date" shall mean the earlier of (i) July 15, 1996 or (ii) the date upon which
the Fresh N' Lite Restaurant (the "Restaurant") is open for business to the
public. When the term hereof is ascertainable and specifically fixed, or
otherwise agreed to by Landlord and Tenant, Landlord and Tenant shall enter into
a recordable supplement to the Lease Memorandum, which shall specify the actual
date for the expiration of the original term of this Lease and the Rent
Commencement Date. If for any reason, Landlord and Tenant do not enter into such
a supplemental agreement, the Rent Commencement Date shall be July 15, 1996.
b. Option to extend. Landlord does hereby grant to Tenant the right,
privilege and option to extend this Lease for a period of five (5) years from
the date of expiration of the original term of this Lease, upon the same terms
and conditions except rental as herein contained, upon notice in writing to
Landlord of Tenant's intention to exercise said option, given at least six (6)
months prior to the expiration of the original term of this Lease. In the event
that Tenant shall have exercised said first extension option, Landlord does
hereby grant to Tenant the right, privilege and option again to extend this
Lease for an additional period of five (5) years after expiration of the first
extension period; upon the same terms and conditions except rental as herein
contained, upon notice in writing to Landlord of Tenant's intention to exercise
said option, given at least six (6) months prior to the expiration of the first
extension period. Notwithstanding any provision of this paragraph 2 to the
contrary, Tenant shall not be entitled to exercise either such extension option
if at the time of exercise Tenant shall be in default of any of its covenants or
agreements under this Lease.
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3. RENTAL: Tenant agrees to pay as rental for the use and occupancy of the
Premises, at the times and in the manner hereinafter provided, the following
sums of money:
"Base Annual Rental": Tenant, in consideration of said demise, does
hereby covenant and agree with Landlord to pay to Landlord annualized rents (but
payable monthly) as follows:
Term Base Annual Rental Monthly Rental
Years 1-5 $43,500.00 $3,625.00
Years 6-10 $50,000.00 $4,166.66
Years 11-15 $56,000.00 $4,666,66
Years 16-20 $63,000.00 $5,250.00
First Renewal Term Market Rate (hereinafter defined) but not to
exceed $85,000.00
Second Renewal Term Market Rate
in advance, without notice or invoice from Landlord, upon the first day of every
month during the term hereof commencing upon the Rent Commencement Date and
ending upon termination of this Lease. In the event the Rent Commencement Date
shall be a date other than the first day of a month then the Base Annual Rental
for the period from such Rent Commencement Date until the first day of the month
next following shall be prorated accordingly. Tenant's duty and obligations to
pay the Base Annual Rental is a separate and independent covenant of Tenant
separate and apart from and not contingent upon Landlord's performance or
failure to perform its obligations under this Lease and Tenant's remaining
obligations under this Lease.
As used herein, the term "Market Rate" shall mean the fair market
rental rate of the Premises determined in accordance with the following
provisions of this paragraph. Not later than thirty (30) days after Landlord
shall receive written notice of Tenant's exercise of an extension option,
Landlord shall give Tenant written notice (the "Market Rate Notice") of the
Market Rate for the applicable extension period. In the event that Tenant shall,
in good faith, disagree with the Market Rate set forth in the Market Rate
Notice, Tenant shall, within ten (10) days after receipt of the Market Rate
Notice, provide Landlord with written notice containing Tenant's good faith
opinion of Market Rate together with substantiation in reasonable detail of the
basis for Tenant's opinion (said notice herein called "Tenant's Notice"). Should
Tenant fail to give Tenant's Notice within such ten-day period, Tenant shall be
deemed to have approved the Market Rate set forth in the Market Rate Notice,
which shall thereupon become the Market Rate for the applicable extension
period. In the event that Tenant timely gives Tenant's Notice, Tenant and
Landlord shall negotiate in good faith to establish Market Rate by mutual
agreement; provided, however, should Tenant and Landlord fail to reach agreement
within ten (10) days after receipt by Landlord of Tenant's Notice, then Market
Rate shall be determined by appraisal as hereinafter provided. Landlord and
Tenant shall jointly select one(1) Qualified Appraiser (hereinafter defined). If
the parties do jointly select one Qualified Appraiser, the Qualified Appraiser
so selected shall be instructed to promptly determine the Market Rate. If the
parties fail to jointly select one Qualified Appraiser within ten (10) days
after a written request by either party to make the joint selection, Landlord
and Tenant shall each select one Qualified Appraiser. If either party fails to
select a Qualified Appraiser within ten (10) days after written notice the other
party that the other party has selected a Qualified Appraiser, then the Market
Rate shall
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be the rate designated by the other party in the Market Rate Notice or Tenant's
Notice, as the case may be. The two Qualified Appraisers so selected shall be
instructed to promptly determine, independent of the other, the Market Rate. If
two Qualified Appraisers are selected, and either Qualified Appraiser fails to
deliver a written report to Tenant and Landlord with its determination of Market
Rate within fifteen (15) days after the first Qualified Appraiser has delivered
its written determination of Market Rate to Tenant, Landlord and the other
Qualified Appraiser, then market Rate shall be the Market Rate as determined by
the first Qualified Appraiser. If two Qualified Appraisers are selected and the
difference between the two amounts of their determinations of Market Rate timely
made does not exceed five percent (5%) of the lesser of such amounts, then the
Market Rate shall be the average of the Market Rates determined by each of the
two Qualified Appraisers. If two Qualified Appraisers are selected and the
difference between the two amounts of their determinations of Market Rate timely
made exceeds five percent (5%) of the lesser of such amounts, then the two
Qualified Appraisers shall select a third Qualified Appraiser, who shall
promptly determine the Market Rate. In the event that the two Qualified
Appraisers fail to select a third Qualified Appraiser within ten (10) days after
written notice to both of them of the need for a third Qualified Appraiser, then
Landlord and Tenant shall promptly apply to the local office of the American
Arbitration Association for the appointment of a third Qualified Appraiser. Of
the three appraisals, the appraisal which differs most in terms of dollar amount
from the average of the three appraisals shall be excluded and the average of
the remaining two appraisals shall be the Market Rate. The determination of
Market Rate by appraisal as hereinabove provided shall be final and binding on
the parties; provided, however, in no event shall (i) Market Rate in the first
extension period be less than Base Annual Rent in years 16-20; and (ii) Market
Rate in the second extension period be less than Base Annual Rate in the first
extension period. If the procedure set forth above is implemented and if for any
reason whatsoever (including, without limitation, the institution of any
judicial or other legal proceeding by either party), the Market Rate for such
extension period shall be the Market Rate set forth by Landlord in the Market
Rate Notice until such time as Market Rate is finally determined, and Landlord
and Tenant shall, by appropriate payment to the other, correct any overpayment
or underpayment which may have been made prior to such final determination. If
one Qualified Appraiser is jointly selected, the parties shall each pay one-half
of the fees and expenses of such Qualified Appraiser. If two or more Qualified
Appraisers are selected, each of Landlord and Tenant shall pay the fees and
expenses of the Qualified Appraiser selected by it, and they shall each pay
one-half of the fees and expenses of the third Qualified Appraiser, if any. A
"Qualified Appraiser" as used herein shall be an M.A.I. appraiser having at
least ten (10) years experience in appraising commercial real estate similar in
character to the Premises in Dallas County, Texas.
All sums of money due under the terms of this Lease including Base
Annual Rental shall be paid or mailed to:
Mac ▇▇▇▇▇▇ Partners, Ltd. Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or to such other payee or address as Landlord may designate, in writing, to
Tenant.
4. COVENANTS AND REPRESENTATIONS: Landlord hereby represents that all water and
gas mails, electric power lines, telephone lines, fire protection utilities,
fire sprinkler systems, sanitary and storm sewers (the "Utilities") are located
at the property line, in the public right-of-way, of the Premises and are
available and meet the specifications set forth on Exhibit B attached hereto and
made a part hereof (the "Utilities Specifications").
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Tenant shall pay when due all bills for water, heat, gas, telephone and
electricity and other Utilities used on the Premises and shall all connection
charges, capital recovery fees, utility expansion charges, tax fees, sewer
rents, sewer charges and all other similar fees and charges associated
therewith.
5. CONSTRUCTION PERMITS - ZONING:
a. Promptly after the Effective Date, Tenant at its cost, shall submit
to the appropriate governmental authorities all necessary applications to cause
the Premises to be rezoned to permit the sale of liquor by the drink on the
Premises (the "Zoning Condition") and Tenant shall diligently prosecute such
application to completion prior to July 16, 1996 (the "Contingency Period"), and
Landlord shall have exercised reasonable efforts to cooperate with Tenant. In
the event that Tenant shall not have satisfied the Zoning Condition prior to
expiration of the Contingency Period, Tenant may terminate this Lease by written
notice to Landlord given at any time prior to the end of the Contingency Period.
b. During the Contingency Period, Tenant shall, at its expense, apply
for and prosecute diligently any and all licenses, permits and other
administrative approvals required by any applicable governmental authority for
the construction, ownership and operation of the Restaurant on the Premises (the
"Permit Condition"). In the event that Tenant shall not have satisfied the
Permit Condition prior to the end of the Contingency Period or Tenant may
terminate this Lease by written notice to the Landlord given at any time prior
to the end of the Contingency Period.
c. During the Contingency Period Landlord at its expenses (i) shall
prepare and submit to the appropriate governmental authorities all necessary
subdivision plants and dedications to cause the Land to comply with all
governmental ordinances and regulations applicable to the subdivision of the
property of which the Land is a part for sale, lease, and development and (ii)
shall diligently prosecute the same to completion, approval, and filing in the
real property records of Dallas County, Texas (the "Platting Condition"). In the
event that Landlord shall not have satisfied the Platting Condition prior to the
expiration of the Contingency Period, Tenant may terminate this Lease by written
notice to Landlord given at any time prior to the end of the Contingency Period.
d. Tenant at its expense shall apply for and prosecute diligently such
approvals as may be required for the use of construction materials acceptable to
Tenant for the construction of the Restaurant on the Premises. In the event that
Tenant shall not have satisfied this condition within thirty (30) days after the
Effective Date, Tenant may terminate this Lease by written notice to Landlord
given prior to the expiration of the 30-day period.
6. TAXES:
a. Landlord represents and warrants that all taxes on the Land, except
current taxes not delinquent, have been paid in full. Landlord, after receipt of
any tax notice or ▇▇▇▇ on the Premises, shall promptly furnish Tenant with a
copy of such document. Landlord, at its expense, shall cause the Land to be
subdivided into a separate tax parcel.
b. Tenant covenants and agrees to pay directly to the taxing authority
or authorities, before they become delinquent, all ad valorem real property
taxes, special assessments, impact fees, user fees, development fees, land use
exactions or any other fees, levies or charges affecting the Premises levied,
assessed, accrued or payable for the period commencing on the Rent Commencement
Date and continuing for the remainder of the term.
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c. Tenant shall pay without abatement, deduction or setoff all personal
property taxes, general and special assessments and other charges of every
description levied on or assessed against all personal property located on the
Premises during the term of this Lease. Except for those taxes being diligently
contested in good faith by appropriate proceedings, Tenant shall make all such
payments directly to the charging authority before delinquency and before any
fine, interest or penalty shall become due or be imposed by operation of law for
their non-payment.
d. If by law any tax to be paid by Tenant may be paid in installments,
Tenant may elect to pay such tax in installments as it becomes due during the
term hereof.
e. If Tenant desires to contest the validity or amount of any taxes or
assessments for which Tenant is responsible under this Lease and gives Landlord
written notice of this intention, then Tenant may contest the assessment or tax
without being in default hereunder; provided, however, that Tenant shall post a
bond with Landlord or otherwise provide for the payment of such taxes or
assessments in a manner reasonably acceptable to Landlord, so that Landlord may
insure the payment of such taxes or assessment if Tenant's contest of such tax
or assessment shall fail. Landlord agrees to cooperate with any such effort by
Tenant; provided, Landlord shall not be obligated to incur any expense in
connection with such content. In no event will Tenant permit the Premises to be
forfeited to any taxing authority. Landlord may pay directly to the taxing
authority, or direct the holder of any bond or escrow deposit to pay, any unpaid
taxes, assessments or charges, together with penalties and interest thereon if
Tenant is not in good faith pursuing a protest of such taxes, assessments or
charges or to prevent the sale of the Premises by applicable taxing authorities
as a consequence of Tenant's failure to pay any such amounts accruing during the
term. if Landlord pays all or any portion of such taxes, assessments or charges,
Tenant shall, upon demand, pay to Landlord, as additional rental, hereunder, the
amount so paid by Landlord together with interest thereon from the date paid by
Landlord until repaid by Tenant at the rate per annum (the "Default Rate") equal
to the lesser of (i) the maximum non-usurious rate allows by Texas law or (ii)
the prime rate announced from time to time by Texas Commerce Bank National
Association, its successors or assigns, plus five percent (5%).
f. Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all claims, costs, expenses, damages, liabilities, fines and
penalties incurred by Landlord in connection with, arising out of or resulting
from the imposition of any taxes, assessments or other charges for which Tenant
is responsible under this Paragraph 6.
7. LIENS AND ENCUMBRANCES: Tenant shall not permit any lien to be filed against
the Premises on account of non-payment or dispute with respect to labor or
materials furnished in connection with construction or any subsequent repairs,
modifications or additions thereto, nor shall Tenant permit any judgment, lien
or attachment to lie against the Premises for any reason. Should any lien of any
nature be against the Premises Tenant shall within twenty (20) days cause such
lien to be paid and discharged. Tenant may in good faith and at Tenant's expense
contest the validity of any such asserted lien, claim or demand, in which event
Tenant shall bond around such lien or claim in accordance with Texas law. In no
event shall Tenant have any right, authority or power to bind Landlord or any
interest of Landlord in the Land for any claim for labor or material or for any
other charge or expense incurred in the construction or alteration of
improvements on the Land.
In the event that Tenant, any subtenants or assigns acquire personal
property to be installed and used upon the Premises subject to a conditional
sales contract, chattel mortgage or other security agreement, Landlord agrees to
execute and deliver to any such secured creditor a waiver of any lien Landlord
may have upon such personal property. Such waiver will be on a form reasonably
acceptable
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to Landlord authorizing the secured creditor to enter upon the Premises and
remove such personal property in the event of default under the terms of the
security agreement. Tenant agrees to indemnify, defend, and hold Landlord
harmless from and against any claims, causes of action, damages, expenses
(including attorneys' fees) and loss incident to, resulting from, or in any way
arising out of Tenant's failure to keep the Premises free from liens and
encumbrances described in this Paragraph 7.
Any memo of lease shall contain a notice no contractor, materialman or
laborer may filed any liens impacting the fee title to the property. Any such
lien shall on the face of such claim shall be asserted solely against the
leasehold interest of the Tenant.
Landlord represents and warrants that all assessments made on the Land
under the Permitted Exceptions have been paid in full.
8. INSURANCE:
a. Tenant covenants and agrees at its own expense to insure and keep
insured the improvements constructed by Tenant on the Premises against
"insurable risks" for not less than ninety percent (90%) of "actual replacement
cost" in responsible insurance companies licensed in the state in which the
Premises are located. Subject to the terms of Paragraph 17 hereof, such
insurance to be made payable in case of loss to Tenant and Landlord as named
insured, with the insurer agreeing to give Landlord thirty (30) days notice of
cancellation. "Insurance risks" shall mean those risks covered by the Texas
Standard Form Fire and Extended Coverage Policy (including fire and direct loss
by windstorm, hurricane, hail, explosion, riot, civil commotion, smoke, aircraft
and land vehicles) sonic shock wave and leakage from fire protective equipment.
"Actual replacement cost" shall be confirmed from time to time (but not more
frequently than once in any twelve (12) calendar months) at the request of
Landlord by one of the insurers.
b. Tenant shall also maintain and keep in force for the mutual benefit
of Landlord and Tenant comprehensive general public liability insurance against
claims for personal injury, death, or property damage occurring in on or about
the Premises or sidewalks or premises adjacent to the Premises to afford
protection to the limit of not less than $1,000,000.00 in respect to injury or
death of a single person and to the limit of not less than $2,000,000.00 in
respect to any one accident and to the limit of $500,000.00 in respect to
property damage.
c. In the event that either party shall at the times indicated below
deem the limits of such insurance to be excessive or insufficient in accordance
with commercially reasonable standards for similar properties in the area of the
Premises, the proper and reasonable limits for such insurance to be maintained
in force shall be determined by arbitration in accordance with the rules of the
American Arbitration Association. The limits of insurance hereinabove provided
shall be reviewed on the fifth anniversary of the Effective Date and on each
third anniversary thereafter and shall be adjusted, if necessary, so that the
amount of such coverage is at all times generally equal to the limits described
herein measured in 1995 U.S. Dollars and otherwise in accordance with
commercially reasonable standards for similar properties in the area of the
Premises.
d. Tenant shall secure an appropriate clause in, or an endorsement to,
each policy of insurance required to be provided by it hereunder pursuant to
which the respective insurance companies waive subrogation and rights of
recovery or permit the insured to agree with the Landlord to waive any claim it
might have against Landlord. The waiver of subrogation or permission for waiver
of any such claim shall extend to the agent of each party hereto and their
respective contractors and employees and,
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in the case of Tenant, shall also extend to all persons occupying or using all
or any part of the improvements from time to time. So long as the applicable
insurance policy includes a waiver of subrogation and agreement to waive
liability and insofar as may be permitted by the terms of the insurance policies
carried by it, both Landlord and Tenant hereby release the other with respect to
any claim (including a claim for negligence) which it might otherwise have
against the other party hereto for loss, damage or destruction with respect to
its property or injury to persons by fire or other casualty or other occurrence
to the extent such loss, damage or destruction is paid by insurance proceeds.
9. USE AND RESTRICTION:
a. Tenant shall use the Premises solely for the construction,
operations, maintenance and repair of an approximately 5,000 square foot full
service restaurant with drive-through window or pick up service. Without
Landlord's prior written consent, Tenant may not use the Premises for any other
purpose.
b. All times during the term of this Lease, Tenant shall continuously
operate the Restaurant on the Premises, provided Tenant may, in the exercise of
its sole discretion, determine the hours and days of regular operation of the
Restaurant. Temporary cessation of operation for remodeling, alteration or
repair of the improvements shall not constitute an abandonment or vacation of
the Premises by Tenant.
c. All times during the term of this Lease, Tenant shall be
responsible, at its sole cost and expense, to comply with any and all laws,
rules, regulations, orders, ordinances and other similar matters of any
applicable governmental authority having jurisdiction over the Premises and the
occupancy and operation of the Restaurant thereon.
d. Provided that Tenant has performed all of its covenants and
obligations under this Lease and is not otherwise in default hereunder, Landlord
agrees during the term of this Lease and any extension periods that Landlord
will refrain from leasing land owned by Landlord adjacent to the Premises to any
restaurant whose primary gross sales (being defined as 80% or more) are derived
from the sale of health oriented foods.
10. LEASE IMPROVEMENTS:
a. Tenant shall, at Tenant's sole cost, risk and expense, construct,
erect and diligently pursue completion of the Restaurant on the Premises. The
Restaurant shall be constructed in a good and workmanlike manner in accordance
with plans and specifications approved by Landlord as hereinafter provided and
in accordance with all applicable laws, regulations, ordinances, rules,
standards and guidelines of any governmental authority having jurisdiction over
construction of improvements on the Premises.
b. Prior to the commencement of construction, Landlord shall have the
right to approve Tenant's plans and specifications for all improvements and any
subsequent alterations to the Premises, which approval shall not be unreasonably
withheld. Tenant's plans and specifications shall include plans and
specifications for any buildings or structures to be constructed on the Land,
site plans showing parking areas and driveways and plans and specifications for
any exteriors signage and landscaping. Tenant's plans and specifications will be
fashioned similarly to the existing prototype store at Frankford and Preston,
with the exception of materials necessary for uniformity per request of City. If
Landlord fails
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to respond to Tenant's written request for approval within thirty (30) days
after receipt of Tenant's final construction plans and specifications,
Landlord's approval shall be deemed granted.
c. Tenant shall have the right to change its exterior signage provided
such signage does not impact the visibility of other signage on Landlord's
adjacent property and complies with the sign ordinances of the City of Irving
and make interior nonstructural alterations and improvements to the Premises
without the consent of Landlord. Tenant shall have the right to remove any such
no-structural alterations at any time during the term of this Lease, or any
extension or renewal thereof provided Tenant repairs all damage to the Premises
as a result of such removal within a reasonable time.
d. Throughout the term of this Lease, Tenant shall, at its sole cost
and expense, provide security for the Premises and repair and maintain the
Premises (including parking area, sidewalks and drives) in first class condition
and repair in accordance with all applicable laws, rules, ordinances, orders,
and regulations of any federal, state, county, municipal, and other governmental
entities having jurisdiction over the Premises (including parking area,
sidewalks and drives) in first class condition and repair in accordance with all
applicable laws, rules, ordinances, orders, and regulations of any federal,
state, county, municipal, and other governmental entities having jurisdiction
over the Premises, and all applicable rules, orders, and regulations of the
insurance underwriting board having jurisdiction over the insurance companies
insuring all or any part of the Premises. Tenant shall, at its sole cost and
expense, diligently and promptly make or cause to be made all necessary repairs
and replacements to the Premises to maintain or comply with the foregoing
sentence. Landlord shall not be required to furnish any services or facilities
or make any repairs to the Premises. without diminishing the foregoing
obligations of Tenant, should Tenant fail to make any necessary repairs within
thirty (30) days after notification by Landlord of such failure, Landlord may,
but shall in no event be required to, make such repairs for Tenant's benefit,
and the expense thereof shall constitute additional rent which shall be
immediately paid by Tenant to Landlord upon demand together with interest at the
Default Rate from the date of expenditure by Landlord to the date of repayment
by Tenant. In addition, Landlord shall have any and all other remedies provided
hereunder for a default by Tenant should Tenant fail to comply with the
foregoing.
e. Tenant shall be responsible for, and shall bear all costs and
expenses associate with, any and all alterations to the Premises which may be
required by the Americans With Disabilities Act of 1990 (the "ADA"), and for the
accommodation of disabled individuals who may be employed from time to time by
Tenant, or any disabled customers, clients, guests, or invitees or sublessees.
Tenant shall indemnify, defend and hold Landlord harmless from and against any
and all liability incurred arising from the failure of the Premises to conform
with the ADA, including the cost of making any alterations, renovations or
accommodations required by the ADA or any government enforcement agency, or any
courts, and any and all fines, civil penalties, and damages awarded against
Landlord resulting from the violation of the ADA, and all reasonable legal
expenses and court costs incurred in defending claims made under the ADA,
including without limitation reasonable consultants' and attorneys' fees,
expenses and court costs. The terms and provisions of this paragraph shall
survive the termination or expiration of this Lease.
f. Notwithstanding any provision of this Lease to the contrary,
Landlord and Tenant agree that Tenant shall have performed substantial
completion of construction of the Restaurant in conformity with the plans and
specifications approved by Landlord within nine (9) months from the Effective
Date of this Lease. Tenant's failure to comply with this obligation shall
constitute a default by Tenant of its covenants and obligations under this Lease
and will entitle Landlord to its remedies in the event of defaults as provided
in this Lease and under applicable law.
g. Except as otherwise provided in this Lease with respect to Tenant's
right to remove certain personal property and trade fixtures, all improvements
to the Premises at the expiration or earlier
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termination of the Lease shall, without compensation to Tenant, become
Landlord's property free and clear of all claims to or against such improvements
by Tenant or anyone claiming, by, through or under Tenant.
h. At Landlord' sole cost and expense, Landlord will, prior to
commencement of construction by Tenant, (i) remove from the Land all existing
improvements and (ii) complete any site grading and/or other preparation
necessary for drainage from the Premises to be compatible with the drainage plan
for Landlord's adjacent property.
i. Landlord will provide to Tenant specifications for parking lot
lights so that parking lot lights on the Premises and on Landlord's adjacent
property will be the same. Tenant shall install and maintain parking lot lights
on the Premises in accordance with such specifications.
j. At all times during the term, Tenant shall install and maintain in a
neat and attractive condition landscaping and seasonal plantings around the
Restaurant building. Tenant's landscape plan from time to time in effect shall
be subject to Landlord's prior written approval.
11. ASSIGNMENT AND SUBLETTING:
Tenant shall not assign or in any manner transfer this Lease or any
estate or interest therein, or sublet the Premises or any part thereof or for
any license, concession or other right of occupancy or any portion of the
Premises without the prior written consent of Landlord. Landlord agrees that it
will not withhold consent in a wholly unreasonable and arbitrary manner;
however, in determining whether or not to grants its consent, Landlord shall be
entitled to take into considerations factors such as Landlord's desired tenant
mix, the reputation and net worth of the proposed transferee. In addition,
Landlord shall also be entitled to charge Tenant a reasonable fee for processing
Tenant's request. Consent by Landlord to one or more assignments or sublettings
shall not operate as a waiver of Landlord's rights as to any subsequent
assignments and sublettings.
If Tenant is a corporation, partnership or other entity and if at any
time during the term of this Lease the person or persons who own a majority of
either the outstanding voting rights or the outstanding ownership interests of
Tenant at the time of the execution of this lease cease to own a majority of
such voting rights or ownership interests (except as a result of transfer by
devise or decent), such cessation or loss of majority voting rights or ownership
interests shall constitute a transfer or assignment subject to the immediately
preceding paragraph. The loss of a majority of such voting rights or ownership
interest shall not apply, however, if at the time of the execution of this
Lease, Tenant is a corporation and the outstanding voting share of capital stock
of Tenant are listed on a recognized security exchange or over-
the-counter-market or if Tenant is a corporation and the corporation issues
additional shares for the purpose of raising capital for the corporation and not
for the purpose of avoiding the restriction on assignment and transfer provided
in the immediately foregoing paragraph and the person or persons who own a
majority of the outstanding voting rights at the time of execution of this Lease
continue to have the controlling interest in the corporation.
Any assignee or sublessee of an interest in and to this Lease shall be
deemed by acceptance of such assignment or sublease or by taking actual or
constructive possession of the Demised Premises to have assumed all of the
obligations set forth in or arising under this Lease. Such assumption shall be
effective as of the earlier of the date of such assignment or sublease or the
date on which the assignee or sublessee obtains possession of the Premises.
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Notwithstanding any assignment or subletting, Tenant and any guarantor
of Tenant's obligations under this Lease shall at all times remain fully
responsible and liable for the payment of the rent herein specified and for
compliance with all of its other obligations under this Lease (even if future
assignments and sublettings occur subsequent to the assignment or subletting by
Tenant, and regardless of whether or not Tenant's approval has been obtained for
such future assignments and sublettings). Moreover, in the event that the rental
due and payable by a sublessee (or a combination of the rental payable under
such sublease plus any bonus or other consideration therefor or incident
thereto) exceeds the rental payable under this Lease, or if with respect to a
permitted assignment, permitted license or other transfer by Tenant permitted by
Landlord, the consideration payable to Tenant by the assignee, licensee or other
transferee exceeds the rental payable under this Lease, then Tenant shall be
bound and obligated to pay Landlord all such excess rental and other excess
consideration with ten (10) days following receipt thereof by Tenant from such
sublessee, assignee, licensee or other transferee as the case may be. Finally,
in the event of an assignment or subletting, it is understood and agreed that
all rentals paid to Tenant by an assignee or sublessee shall be received by
Tenant in trust for Landlord, to be forwarded immediately to Landlord without
offset or reduction of any kind; and upon election by Landlord such rentals
shall be paid directly to Landlord as specified in Section 3 of this Lease (to
be applied as a credit and offset to Tenant's rental obligation).
Subject to Section 12 of this Lease, Tenant may mortgage, pledge or
otherwise encumber its interest in this Lease, provided in no event, shall any
such mortgage, pledge or encumbrance attach to or become a lien on the Premises
or any interest therein other than the leasehold interest and other rights
granted to Tenant under this Lease.
In the event of the transfer and assignment by Landlord of its interest
in this Lease and Premises to a person expressly assuming Landlord's obligations
under this Lease, Landlord shall thereby be released from any further
obligations hereunder, and Tenant agrees to look solely to such successor in
interest of the Landlord for performance of such obligations. Any security given
by Tenant to secure performance of Tenant's obligations hereunder may be
assigned and transferred by Landlord to such successor in interest and Landlord
shall thereby be discharged of any further obligation relating thereto.
12. MORTGAGING OF LEASEHOLD ESTATE:
In the event that Tenant shall mortgage its leasehold estate and the
mortgagee or holders of the indebtedness secured by the leasehold mortgage or
trust deed shall notify Landlord in the manner hereinafter provided for the
giving of notice of the execution of such mortgage or must deed and name the
place for service of notice upon such mortgage or holder of indebtedness, then,
in such event, Landlord hereby agrees for the benefit of such mortgagees or
holder of indebtedness from time to time:
a. That Landlord will give to any such mortgagee or holder of
indebtedness simultaneously with service on Tenant a duplicate of any and all
notices or demands given by Landlord to Tenant from time to time asserting a
breach by Tenant of any of its obligations under this Lease.
b. That such mortgagee or holder of indebtedness shall have the
privilege of performing any of Tenant's covenants hereunder or of curing any
default by Tenant hereunder or of exercising any election, option or privilege
conferred upon Tenant by the terms of this Lease within the time period set
forth in Paragraph 13.a.
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c. That, except for the right to terminate contained in Paragraph 5 of
this Lease, no right, privilege or option to cancel or terminate this Lease
available to Tenant shall be deemed to have been exercised effectively unless
joined in by any such mortgagee or holder of the indebtedness.
13. DEFAULT:
a. The following shall be events of default hereunder: (1) Tenant fails
to pay when due any of the Base Annual Rent or other amount provided herein to
be paid by Tenant, (2) Tenant fails to promptly keep and perform any other
covenant in this Lease; provided further, however, Landlord shall, prior to
taking any action for such an event of default, given Tenant notice specifying
the default(s), and Tenant shall have fifteen (15) days after receipt of said
notice to correct any non-monetary default, or (3) Tenant vacates or abandons
all or a portion of the Premises. If Tenant fails to correct said default(s)
within the specified time periods, Landlord may terminate this Lease by written
notice to Tenant and re-enter the Premises and take possession thereof, re-take
possession but not terminate this Lease, and exercise such other rights and
pursue such other remedies and damages against Tenant as a result of Tenant's
breach as provided by law or in equity. No act by or on behalf of Landlord under
this Paragraph 13.a shall constitute a termination of this Lease unless Landlord
gives Tenant written notice of termination. Landlord shall not have any
obligation to relet the Premises.
b. In the event Landlord consent to an assignment or sublease of this
Lease or the Premises, and should any default occur requiring notice as
hereinbefore provided in this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ agrees that it will use
reasonable efforts to furnish Tenant with a copy of such notice at the same time
that it is sent to such assignee or sublessee. In the event that such default is
not corrected by such assignee or sublessee during the specified time periods,
Tenant shall have an additional period of ten (10) days to correct such default,
and upon correction of such default, Tenant shall have the right and option to
resume actual possession of the Premises as Tenant hereunder for the unexpired
term of this Lease.
c. Should there be any default or breach of this Lease on the part of
Landlord, Tenant shall give Landlord written notice thereof, and Landlord shall
correct such breach or default within thirty (30) days after such notice. Should
Landlord fail to correct such breach or default, Tenant may pursue any legal or
equitable remedy to which it is entitled.
d. Should Tenant fail to perform any covenant or obligation required by
this Lease to be kept or performed by it, Landlord may, but shall not be
obligated to, perform any such covenant or obligation. Tenant shall, upon
demand, reimburse Landlord for any amount incurred by Landlord in the
performance of any such covenant or obligation together with interest thereon at
the Default Rate from the date of expenditure by Landlord to the date of
reimbursement by Tenant.
14. HOLDING OVER:
In the event Tenant continues to occupy the Premises after the last day
of the term hereby created, or after the last day of any extension of said term,
and the Landlord elects to accept rent thereafter, a tenancy from month to month
shall be created (and not for any longer period) at one hundred fifty percent
(150%) of the immediately prior month's rent.
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15. CONDEMNATION:
a. In the event all of the fee title to the Land is taken or condemned
by any competent authority, this Lease will terminate as of the earlier of the
date of possession of the Premises by the condemning authority or the date of
the title transfer. Tenant shall have the right to prosecute its claim for an
award based on the leasehold estate and Landlord shall have the right to
prosecute its claim for an award based on the value of Landlord's reversionary
interest in the Premises taking into account the leasehold estate created by
this Lease, the amount of rental paid and to be paid by Tenant hereunder and all
of the other terms and provisions of this Lease. In the event a substantial
portion, as defined in the immediately succeeding paragraph, of the Premises is
taken or condemned by any competent authority, Tenant shall have the right (i)
to terminate the Lease as of the earlier of the transfer of title or the date of
the taking of possession by the condemning authority, in which event any
unearned rent paid or credited will be refunded by Landlord to Tenant, or (ii)
to continue the Lease in full force and effect with a reduced fixed rental
commensurate with the reduced area and/or reduced utility of the Premises as
mutually determined in lieu of the amount of Base Annual Rent hereinabove
provided, which reduced rental will become effective upon the earlier of the
date of title transfer or the date of such taking. Tenant shall elect between
these rights and give notice to Landlord of its election within sixty (60) days
after the date when possession of the pertinent portion of the Premises is
required by the condemning authority. In the event less than a substantial
portion of the Premises is taken by the condemning authority, then the Ease Rent
shall be reduced as in (ii) above.
b. A "substantial portion", as used in the foregoing Subparagraph a, is
defined to be any of the following: (i) any part of the Restaurant building;
(ii) fifteen percent (15%) or more of the parking area; (iii) fifteen percent
(15%) or more of the Land; (iv) loss through the taking of condemnation of
direct access from the Premises to any adjacent street or highway; or (v) a
portion of land or improvements the absence of which would have a substantial
adverse impact on Tenant's business conducted on or from the Premises.
c. If any award is made for the condemning or taking of all or any part
of the Premises during the original term of this Lease or any of the extension
periods, then Landlord and Tenant shall share in any award made for condemning
or taking the improvements to the extent of their interest in the Premises. The
respective interests of Landlord and Tenant in any such award shall be as set
forth in the second sentence of Paragraph 15.a above.
d. Termination of the Lease because of condemnation shall be without
prejudice to the rights of either Landlord or Tenant to recover from the
condemnor compensation and damages for the injury and loss sustained by them as
a result of such taking and Tenant shall have the right to make a claim against
the condemning authority for loss of profits or damage to its business by the
taking or condemnation.
16. COVENANT OF TITLE AND QUIET ENJOYMENT:
Landlord covenants that Landlord is well seized of and has good title
to the Premises free and clear of all liens, encumbrances and restrictions,
except as may be shown by a current title commitment for the Land. Landlord
warrants and will defend the title to the Premises against any person claiming
by, through or under Landlord but not otherwise. If, at any time, Landlord's
title or right to receive rent hereunder is disputed, or there is a change of
ownership of Landlord's estate by act of the parties or operation of law, Tenant
may withhold rent thereafter accruing until Tenant is furnished proof
satisfactory to it as to the party entitled thereto.
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17. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS:
a. If the building on the Premises shall be wholly or partially damaged
or destroyed by fire or other casualty prior to the last five (5) years of the
original term of this Lease, Tenant shall restore the Premises to the same
condition as prior to the damage. Insurance proceeds will be made available to
Tenant for that purpose, but it is understood and agreed that if the cost of the
restoration exceeds the amount of the insurance recovery, the Tenant will pay
such excess. In no event will rent ▇▇▇▇▇ during any period of untenantability.
b. If the building on the Premises shall be damaged or destroyed by
fire other casualty during the last five (5) years of the original term of this
Lease, or during any option period of this Lease, to the extent of fifty percent
(50%) or more of the actual replacement cost of the building (herein called
"substantial damage", Tenant may, at Tenant's option, to be evidenced by notice
given to Landlord within thirty (30) days after the occurrence of such damage or
destruction, elect to terminate this Lease as of the date of the damage or
destruction and, in such event, all of the insurance proceeds shall be paid over
to the Landlord. The extent of damage or destruction shall be determined by an
independent architect mutually acceptable to Landlord and Tenant. If the
building suffers less than substantial damage or if the building suffers
substantial damage and Tenant does not terminate the Lease by written notice to
Landlord within the time period specified above, Tenant shall restore the
Premises to the same condition as prior to the damage. Insurance proceeds will
be made available to Tenant for that purpose, but it is understood and agreed
that if the cost of restoration exceeds the amount of the insurance recovery,
the Tenant will pay such excess. In no event will rent ▇▇▇▇▇ during any period
of untenantability.
c. In the event that Tenant is obligated by the terms and provisions
hereof to repair, restore or reconstruct the building or other improvements
situated on the Premises but fails to commence to do so within six (6) months
following the casualty event and thereafter diligently prosecute the same to
completion within twelve (12) months following such casualty, Landlord may
terminate this Lease by written notice to Tenant, such termination to be
effective immediately.
18. TRADE FIXTURES: Landlord agrees that all trade fixtures, machinery,
equipment, furniture or other personal property of whatever kind and nature kept
or installed on the Premises by Tenant or its subtenants shall not become the
property of Landlord or a part of the realty (if not permanently affixed to the
Premises or ordinarily considered a part of the realty such items which would
ordinarily be considered a part of the realty to include but not limited to
lighting fixtures installed in the ceiling, plumbing and the HVAC system) and
may be removed by Tenant or its subtenants, in their discretion, at any time and
from time to time during the entire term of this Lease and any renewals,
provided Tenant shall first and promptly repair any damage to Premises resulting
from the removal. Upon request of Tenant or Tenant's assignees or subtenants,
Landlord shall execute and deliver any real estate consent or waiver forms
submitted by any vendors, landlords, chattel mortgagees or holders or owners of
any trade fixtures, machinery, equipment, furniture or other personal property
of any kind and description kept or installed on the Premises by any subtenant
setting forth the fact that Landlord waives, in favor of such vendor, lessor,
chattel mortgagee or any holder or owner, any lien, claim, interest or other
right therein superior to that of such vendor, landlord, chattel mortgagee,
owner or holder. Landlord shall further acknowledge that property covered by
such consent to waiver forms is personal property and is not to become a par of
the realty no matter how affixed thereto and that such property may be removed
from the Premises by the vendor, Landlord, chattel mortgagee, owner or holder at
any time upon default by the Tenant or subtenant in the terms of such chattel
mortgage or other similar documents, free and clear of any claim or lien of
Landlord, provided Tenant shall first and promptly repair any damage to Premises
resulting from the removal.
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19. NON-DISTURBANCE AND ATTORNMENT:
a. If at the execution of this Lease there are any present mortgage(s),
Lien(s) or encumbrance(s) against the Premises, Landlord shall have the
mortgagee(s), lienholder(s) or other secured party(ies), as a further condition
precedent to the Rent Commencement Date, execute nondisturbance agreement(s)
providing that such holder(s) will recognize Tenant's Lease of the Land and will
not disturb Tenant's quiet possession of the Land as long as Tenant is not in
default of any of the provisions of this Lease. Before Landlord shall have the
right to further encumber the Land or seek any modification or extension of
existing encumbrances, Landlord must first secure for Tenant's benefit a written
non-disturbance agreement, in the form set forth above, and accordingly, Tenant
will then execute and deliver such further instruments subjecting this Lease to
the lien of any such loan or mortgage and agreeing to attorn to said
mortgagee(s) based on their priority as shall be required by such mortgagee.
b. If Landlord defaults in making payment under any mortgage or
mortgages, or if Landlord is in breach or in default of any such mortgage or
mortgages in any respect, Tenant shall have the right and option to make all
rental payments thereafter becoming due under this Lease to the mortgagee in
lieu of Landlord, upon notice therefrom, and payments so made shall discharge
the obligation of Tenant hereunder respecting the payment of Base Annual Rent.
20. LANDLORD'S RIGHT OF ACCESS:
Landlord, its employees, agents and representatives, shall have the
right to enter upon the Premises at any time for the purpose of making
inspections or performing any work which Landlord elects to undertake (although
it shall have no obligation whatsoever to do so) made necessary by reason of
Tenant's default hereunder; provided, however, that, excepting cases of an
emergency or unless Landlord obtains the Tenant's prior consent, Landlord shall
not enter the Premises without notification to Tenant at least twenty-four (24)
hours in advance.
21. INDEMNITY:
Except for the claims, rights, recovery and causes of action that
Landlord has released in Paragraph 8.d. above, Tenant shall indemnify, defend,
and hold Landlord, its employees, partners, directors, officers, agents,
invitees and contractors, harmless from and against all claims, causes of
action, damages, losses, costs, and expenses (including attorneys' fees)
resulting or arising from or in connection with any and all injuries or death of
any person or damage to any property caused or alleged to have been caused by
any acts, omissions, or negligence of Tenant, its employees, officers,
directors, agents, customers, invitees, or guests, or any parties contracting
with Tenant relating to the Premises including, without limitation,
environmental conditions caused during the term of this Lease. The foregoing
shall not apply to the gross negligence or willful misconduct of Landlord. This
paragraph 21 shall survive the expiration or termination of this Lease.
22. RECORDING:
Tenant and Landlord agree to execute and record a short form or
memorandum of this Lease in the form attached hereto as Exhibit C and made a
part hereof. The cost of all documentary stamps, or
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conveyancing, transfer tax and recording fees shall be paid equally by the
parties hereto. Tenant may not record a copy of this Lease. Tenant's recordation
of the Lease shall constitute a default hereunder.
23. EVIDENCE OF TITLE:
Within thirty (30) days after the Effective Date, Tenant at Tenant's
expense shall apply for leasehold title insurance, from a title company
acceptable to Tenant in the amount of not less than One Hundred and Fifty
Thousand and no/100 ($150,000) dollars, or that is required by law, or the title
insurer, effective as of the date hereof, showing good and indefeasible title in
fee simple in Landlord subject only to the liens and encumbrances set forth on
Exhibit D attached hereto and made a part hereof (the "Permitted Exceptions").
If such report discloses any conditions, restrictions, liens, encumbrances,
easements or covenants other than the Permitted Exceptions, Landlord shall have
sixty (60) days from the date of issuance of such title report, binder or
commitment to cure such defects and to furnish a title report, binder or
commitment showing such defects cured or removed. If such defects in title are
not so cured within sixty (60) days, Tenant may, at its option, given written
notice to Landlord within five (5) days thereafter terminating this Lease. In
the event this Lease is so terminated, all monies, deposits and instruments
shall be returned to the respective parties. Immediately upon final execution of
the Lease, Landlord shall deliver to Tenant's title company, if so required, all
prior title evidence in Landlord's possession.
24. BORING AND PERCOLATION CONTINGENCIES:
Tenant shall have the right, within thirty (30) days from the date
hereof, to perform such boring and percolation tests as may be required to
determine the physical characteristics, including the water table of substrata,
of the Premises. Tenant agrees to keep the results of such surveys, studies,
tests, or borings confidential and, in the event Tenant terminates this
Agreement based on such results, Tenant will deliver the originals and all
copies of such results to Landlord. Tenant covenants and agrees that the
Premises shall not be damaged or impaired in any way as a result of such
activities on the Premises, and hereby agrees to indemnify, defend, and hold
Seller harmless from and against any and all claims, causes of action, damages
and expenses (including attorneys' fees) incident to resulting from, or in any
way arising out of Tenant's or Tenant's agents' or representatives', presence
in, on, or about the Premises, or out of any such test, inspection, or study
conducted by Tenant on the Premises without regard to the underlying cause or
causes of such claims, causes of action, damages or expenses. Such indemnity
shall survive the term of this Lease or any termination hereof. Landlord shall
furnish to Tenant copies of the results of any core samples which Landlord has
in its possession.
25. SURVEY:
Tenant may order a current certified topographical survey of the Land
by a licensed surveyor within thirty (30) days from the Effective Date.
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26. ENVIRONMENTAL MATTERS:
Landlord shall furnish to Tenant a copy of any phase one environmental
site assessment of the Land in Landlord's possession. Tenant shall have the
right to conduct an environmental audit of the Premises, at its cost, within
thirty (30) days after the Effective Date. Such audit shall be conducted
pursuant to standard quality control assurance procedures reasonably
satisfactory to Landlord and Tenant. Tenant shall have fifteen (15) days after
receipt of the audit to determine whether the audit discloses condition(s)
which, in Tenant's reasonable opinion, make the Premises unsuitable for its
purposes. If Tenant fails to advise Landlord that it is dissatisfied with the
condition of the Premises within such fifteen (15) day period, Tenant shall be
deemed to have approved the condition of the Premises. Notwithstanding anything
stated elsewhere in this Lease, if Tenant is not satisfied with the condition of
the Premises and so timely notifies Landlord as set forth hereinabove, this
Lease shall terminate and neither party shall have any further liability or
responsibility thereunder and, in such event, Landlord shall return to Tenant
all sums deposited by Tenant with Landlord pursuant to the terms of this Lease.
Tenant hereby indemnifies, defends, and holds Landlord harmless from any
damages, costs, losses, claims, or causes of action relating to or in any way
arising out of such environmental audits allowed by this paragraph. Tenant
hereby agrees that no activity will be conducted on the Premises that will
produce any environmentally hazardous or sensitive substances or which violate
any statute o fa governmental or quasi-governmental authority relating to
pollution or protection of the environment ("Hazardous Substance"). Tenant shall
be responsible for obtaining any required permits in paying any fees and
providing any testing required by any governmental agency and the Premises will
not be used in any manner for the storage of any Hazardous Substances except for
the storage of such materials that are used in the ordinary course of Tenant's
business and are stored in a manner and location meeting all applicable laws.
Tenant will not install any underground storage tanks of any type and will not
allow any surface or subsurface conditions to exist or come into existence that
constitute or with the passage of time may constitute a public or private
nuisance or a Hazardous Substance. If hazardous materials are brought onto or
found on the Property, same shall be immediately removed with proper disposal,
and all required cleanup procedures shall be diligently undertaken pursuant to
all applicable laws by Tenant. Landlord hereby agrees to indemnify and hold
Tenant harmless from any expense, cleanup costs, or other damage from any
Hazardous Substance or other condition on the Premises that violates any state
or federal statute or regulation and which Hazardous Substance or condition
existed prior to the date of this Lease due to an act or omission of Landlord.
Tenant hereby agrees to indemnify and hold harmless Landlord from any expense,
cleanup costs, or other damage from any Hazardous Substance or other existing
condition on the Premises that violates any state or federal statute or
regulation and which Hazardous Substance or condition was created on or
subsequent to the date of this Lease due to an act or omission of Tenant. The
terms of this paragraph 26 shall survive the expiration or termination of this
Lease.
27. NOTICES:
Notices or demand required to be given or served by either party to
this Lease by the other party shall be deemed to have duly given or served only
if in writing and either personally delivered or deposited in the U.S. Mail,
Certified Mail, return receipt requested, postage prepaid, addressed as follows:
To The Landlord At: MacArthur Partners, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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With a copy to: Liddell, Sapp, Zivley, Hill & ▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
To The Tenant At: Naman, Howell, ▇▇▇▇▇ & ▇▇▇, P.C.
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Such addresses may be changed from time to time by either party by
serving notices as provided above. Notwithstanding anything herein to the
contrary, Landlord shall be under no obligation or duty to provide notices to
any mortgagee, Tenant, subtenant, or other party unless such party has provided
to Landlord in writing its name and address and statement of interest as it
pertains to this Lease.
28. ENTIRE AGREEMENTS: MODIFICATION; SEVERABILITY:
This Lease contains the entire agreement between the parties hereto and
no representations, inducements, promises or agreements, oral or otherwise,
entered into prior to the execution of this Lease, will alter the covenants,
agreements and undertakings herein set forth. This Lease shall not be modified
in any manner, except by an instrument in writing executed by the parties. If
any term or provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby and each term and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
29. NUMBER AND GENDER:
All of the terms and words used in this Lease, regardless of the number
and gender in which they were used, shall be deemed and construed to include any
other number (singular or neuter), as the context or sense of this Lease or any
paragraph or clause hereof may require, the same as if the words had been fully
and properly written in the number and gender.
30. APPLICABLE LAW:
This Lease shall be construed and interpreted in accordance with the
laws of the State of Texas, and venue for any actions in connection herewith
shall lie in Dallas County, Texas.
31. ADDITIONAL PROVISIONS:
1. Net Lease. Landlord shall not be required to make any expenditure, incur any
obligation (other than those expressly set forth in this Lease), or incur any
liability of any kind whatsoever in connection with this Lease or Tenant's
financing, ownership, construction, maintenance, operation or repair of the
Premises. It is expressly understood and agreed that this is a completely net
lease intended to assure Landlord the rent herein reserved on an absolute net
basis, excluding taxes on Landlord's income, if any, franchise taxes and the
like.
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2. Nonmerger of Fee and Leasehold Estates. Notwithstanding any other provision
of this Lease to the contrary, if both Landlord's and Tenant's estates in the
Premises or the improvements or both become vested in the same owner, this Lease
shall nevertheless not be, destroyed by application of the doctrine of merger or
any contrary provision of this Lease construable as requiring merger except at
the express written election of the owner.
3. Estoppel Certificate. At any time and from time to time, within thirty (30)
days after notice of request by Landlord or Tenant, the other party shall
execute, acknowledge and deliver to the other or to such recipient as the notice
shall direct, a statement certifying that this Lease is unmodified and in full
force and effect, or, if there have been modifications, that it is in full force
and effect as modified in the manner specified in the statement. The statement
shall also state the dates to which the rent and any other charges have been
paid in advance and that there are no defaults hereunder, or if there are,
specifying those defaults with particularity. The statement shall be such that
it can be relied on by any auditor, creditor, commercial banker and investment
banker and by any prospective purchaser or encumbrancer of the Premises or all
or any part or parts of Tenant's or Landlord's respective interests under this
Lease.
4. Exhibits. The following Exhibits A-D are incorporated herein for all
purposes:
Exhibit A - Description of Land
Exhibit B - Utilities Specifications
Exhibit C - Lease Memorandum
Exhibit D - Permitted Exceptions
Reference to "this Lease" includes matters incorporated by
reference.
Upon satisfaction of the Platting Condition, the description of the
Land according to the subdivision plat of the Land will be substituted
as Exhibit A to this Lease and as Exhibit A to the Lease Memorandum,
which shall then be re-executed, acknowledged, and filed for record.
5. No Partnership, Joint Venture or Principal-Agent Relationship. Nothing in
this Lease or any acts of the parties hereto shall be construed to create the
relationship of principal and agent, or of partnership, or of joint venture, or
of any association between the parties.
6. Time of Essence. Time is of the essence with respect to the performance of
each of the terms, provisions, covenants and conditions contained in this Lease.
7. Binding Effect. Subject to the limitation on Tenant's ability to assign this
Lease or sublet the Premises without Landlord's prior written consent, each and
all of the covenants and conditions of this Lease shall be binding on and shall
inure to the benefit of the heirs, successors, executors, administrators,
assigns and personal representatives of the respective partes.
8. Commissions. Landlord shall pay a commission to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
pursuant to a separate agreement between Landlord and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Except as provided in the preceding sentence, Landlord and Tenant represent and
warrant to each other that there are no brokers or finders fees or commissions
due in respect of the transaction entered into under this Lease. Landlord and
Tenant each indemnify and agree to hold the other harmless from any claims for
real estate, leasing commissions or finders fees in respect of the transaction
entered into under this Lease alleged to be due because of any act of the
indemnifying party and from any loss, liability, damage, cost or expense
(including attorney's fees) of defending or settling such claims.
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9. Execution in Counterparts. This Lease, or the memorandum of this Lease, or
both, may be executed in two or more counterparts, each of which shall be an
original, but all of which shall constitute one and the same instrument.
10. Attorneys' Fees. In the event that at any time during the term of this
Lease, either Landlord or Tenant shall institute any action or proceeding
against the other relating to the provisions of this Lease, or any default
hereunder, the unsuccessful party in such action or proceeding shall reimburse
the successful party for reasonable attorneys' fees and expenses incurred
therein. Such reimbursement obligation shall include all reasonable legal fees
and expenses incurred prior to trial, at trial and at all levels of appeal and
post-judgment proceedings.
11. Ingress and Egress and Parking Easements. Tenant shall not construct any
curb, fence, barrier or other improvement on the Premises, and Landlord shall
not construct any curb, fence, barrier or other improvement on Landlord's
adjacent property which would prevent vehicular ingress and egress to and from
the Premises from and to Landlord's adjacent property. Tenant and Landlord
hereby grant o each other and to their respective customers, tenants and
invitees over, along, and across the parking and driveway areas of the Premises
and Landlord's adjacent property, respectively, the non-exclusive right during
the term of this Lease for vehicular ingress and egress to and from the Premises
from and to Landlord's adjacent Property and for the parking of motor vehicles
in designated parking areas.
Landlord and Tenant intend that the right hereby granted to Tenant on
Landlord's adjacent property be sufficient for it to be an insured right or
estate pursuant to the leasehold title insurance policy obtained by Tenant in
accordance with Section 23. If required by the Title issuing agent, Landlord and
Tenant agree to amend this Lease for this purpose.
12. Landlord's Landscape Area. A twenty-foot strip of land along and adjacent to
MacArthur boulevard and Valley Ranch Pkwy. South shall be designated as
"Landlord's Landscape Area." Landlord shall, at its expense, install and
maintain landscaping in Landlord's Landscape Area in a neat and attractive
condition.
13. Tenant's Duty to Surrender: At the expiration or earlier termination of this
Lease, Tenant shall surrender to Landlord possession of the Premises, but
specifically excluding Tenant's trade fixtures and other personal property which
Tenant is permitted to remove pursuant to Paragraph 18. tenant shall leave the
surrendered Premises in good condition. All property that Tenant is not required
to surrender but that Tenant abandons shall, at Landlord's election, become
Landlord's property at termination of the Lease. If Tenant fails to surrender
the Premises at the expiration or earlier the expiration or earlier termination
of this Lease, Tenant shall defend and indemnify Landlord from all liability and
expense resulting from the delay or failure to surrender, including, without
limitation, claims made by any succeeding tenant founded on or resulting from
Tenant's failure to surrender.
14. Advance Payment of Rent: Upon the execution of this Lease, Tenant has
deposited with Landlord $3,625.00 as security for the faithful performance and
observance by Tenant of the terms, provisions, agreements, covenants and
conditions of this Lease and shall be considered an advance payment of the first
month's rent, to be applied as such, on the date specified within this Lease as
the rent commencement date (Article 2.a).
If this Lease is terminated by Landlord or Tenant pursuant to any
provision hereof allowing termination prior to the Rent Commencement Date, all
payments made by Tenant to Landlord shall be refunded to Tenant.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease to
become effective as of the date first written above.
LANDLORD: MacArthur Partners, Ltd., a
Texas limited partnership
By: ▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇ Partners, Ltd., a
Texas limited partnership
General Partner
By: Hanover Development Company, a
Texas corporation
General Partner
By:
Name:
Title:
TENANT: Fresh 'N Lite, Inc.
By:
Name:
Title:
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[INSERT EXHIBIT "A"]
125
[INSERT EXHIBIT "A-1"]
D
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EXHIBIT "B"
UTILITY SPECIFICATIONS
Water................................Two (2) inch line
Sanitary Sewer.....................Eight (8) inch line
Gas.................................Four (4) inch line
Electricity.................... Switch gear at MacArthur
& Valley Ranch Road
INITIALS:
Landlord:
Tenant:
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[INSERT EXHIBIT "C"]
128
[INSERT EXHIBIT "D"]
129
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease to become
effective as of the date first written above.
LANDLORD: MacArthur Partners, Ltd., a
Texas limited partnership
By: Windsor/MacArthur Partners, Ltd., a
Texas limited partnership
By: Hanover Development Company, a
Texas corporation, its
General Partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
TENANT: Fresh 'N Lite, Inc.
By:
▇▇▇▇ ▇▇▇▇▇▇▇
President
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MEMORANDUM OF GROUND LEASE
THIS MEMORANDUM OF GROUND LEASE ("Memorandum") made as of the ___ day
of __________________________, 1996, by and between FRESH N' LITE, INC., a Texas
corporation ("Tenant"), and MacARTHUR PARTNERS, LTD. ("Landlord").
WITNESSETH:
1. Premises. Landlord and Tenant have entered into a Ground Lease (the
"Lease") dated ____________________, 1996 whereby Tenant has leased from
Landlord the parcel of land in Irving, Dallas County, Texas, containing
approximately ___ square feet, more particularly described in Exhibit A attached
hereto and made a part hereof. It is contemplated that Tenant will construct
improvements on such land and operate a business therein under the name "Fresh
N' Lite Cafe and Grill." Landlord has further granted to Tenant a non-exclusive
right during the term of the Lease for vehicular ingress and egress to and from
the Premises from and to Landlord's adjacent property described in Exhibit B
attached hereto and made a part hereof and for the parking of motor vehicles in
designated parking areas.
2. Term and Renewal options. The term of the Lease is for twenty (20)
years after the Rent Commencement Date (as defined in the Lease). When the exact
Rent Commencement Date is determined, the parties agree to execute a recordable
supplement to this Memorandum which will set forth such date. If the parties
fail to execute such a supplement, the Rent Commencement Date shall be as
specified in the Lease. If the Lease is still in full force and effect, and if
Tenant shall not be in default under the terms of the Lease, Tenant shall have
two (2) successive options to renew the term for five (5) years each, as
provided in the Lease.
3. Incorporation of Lease. This Memorandum is for informational
purposes only and nothing contained herein shall be deemed to in any way to
modify or otherwise affect any of the terms and conditions of the Lease, the
terms of which are incorporated herein by reference. This instrument is merely a
memorandum of the Lease and is subject to all of the terms, provisions and
conditions of the Lease. In the event of any inconsistency between the terms of
this Memorandum and the terms of the Lease, the terms of the Lease shall
prevail.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease
as of the day and year first above written.
TENANT:
FRESH N' LITE, INC., A Texas corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, Fresh N' Lite, Inc.
Title: President
131