THIS LEASE is made and entered into this __________ day of , 19 , by and between
, with its office and principal place of business at
, (hereinafter referred to as "Landlord"), and ______________________________________________, with its office and principal place of business at
, (hereinafter referred to as "Tenant").
1. DESCRIPTION OF PREMISES. Landlord hereby leases to Tenant
and Tenant hires from Landlord, for the term and according to the covenants and conditions contained herein, all that certain land together with the improvements thereon at
of _____________________, County of ______________________, State of ___________________, more particularly described
in Exhibit "A", attached hereto and made a part of this
Lease, together with those appurtenances and easements thereunto belonging, as shown on the Survey, attached hereto as Exhibit "B", and made a part of this Lease, (all of the foregoing hereinafter referred to as the "Premises).
2. ASSIGNMENT OF LEASES. If applicable, Landlord hereby
assigns to Tenant all of Landlord's right, title and interest in and to all of the leases (or subleases)
affecting the Premises now in existence for the term of this Lease. In regard to any such leases, Tenant shall have all the rights of a lessor including the right to terminate,
the right to receive the rent, and the right to extend, any such lease for a term not exceeding the expiration date of the term or any extended term, of this Lease. Tenant agrees to indemnify and hold Landlord harmless for any claim, loss or liability that may arise out of any such lease and
Tenant assumes any duty or liability to any of its franchisees, licenses, tenants or subtenants created by any such lease.
3. TERM. The term of this lease shall be __________________
(_____) years, commencing on ________________________ and ending on ________________________. Providing the Tenant is not in default hereunder, the Tenant shall have one (l), _____________ (_____) year option upon the same terms and conditions herein specified, except that the rent for said option period shall be in the amount of _______________ ________________________________________ ($______________) Dollars per year. In order to exercise the option to renew the within Lease as aforesaid, Tenant shall notify the Landlord at least six (6) months prior to the expiration of the within Pro herein and the Tenant is not in default hereunder, the Tenant shall have an additional _______________(____) year option upon the same terms and conditions herein, except that the rent for sale option period shall be in the amount of
($ ___________) Dollars per year. In order to exercise the election to renew the
within Lease aforementioned, Tenant shall notify the
Landlord at least six (6) months prior to the expiration of the within Lease, or any extension hereof, as to its intention to so exercise this option.
4. SECURITY DEPOSIT. Tenant will, upon execution hereof,
deposit with the Landlord the sum of Dollars ($ ___________ ),
an amount which is equal to two (2) months' minimum base rental, as security for the full and faithful performance
of every provision of this Lease, including but not limited to provisions relating to the payment of rent, additional rent, percentage rent, property taxes, and insurance or any other sums due and payable hereunder or any of the actions required hereunder to be taken by Tenant, Landlord may use, apply, or retain all or any part of the security deposit for the payment of any rents, additional rents or other sum in default, or for the payment of any other amount which Landlord may spend or become obligated to spend by reason
of Tenant's default. If any portion of the security deposit is so used or applied, Tenant shall, within five (5) days after written demand therefor, deposit cash with Landlord
in an amount sufficient to restore the security deposit to its original amount, and Tenant's failure to do so shall be deemed a material breach of this Lease. Landlord shall not be required to keep the security deposit separate from its general funds and Tenant shall not be entitled to interest on such deposit.
If, at any time, the monthly minimum base rental is increased, Tenant shall deposit with Landlord, as additional security, an amount equal to twice the increase. Such additional funds received shall be subject to the same
terms and conditions as provided herein above.
a. Minimum Annual Base Rent. The minimum Annual Base
Rental shall be
Dollars ($ ), payable to Landlord during the full term hereof in twelve (12) equal installments of
Dollars ($ _____________ ), payable on the first day of each calendar month.
b. Percentage Rental. In addition to the minimum monthly
rental agreed to be paid by Tenant, Tenant shall and will pay to Landlord, as additional rent, at the time and in the manner specified in this Lease, an amount equal to _________________ (______%) per cent of the amount of Tenant's GROSS SALES made in, upon or from the buildings on the Premises during each calendar year of the term hereof, less the aggregate amount of the monthly rental previously paid by the Tenant for said calendar year. The Percentage Rental shall be paid quarterly, based upon GROSS SALES during such quarterly period. In the event the quarterly payments of Percentage Rent do not, in the aggregate, equal the Percentage Rental when calculated on an annual basis, then an adjustment shall be made within twenty (20) days after the end of each year of the term hereof and the party owing money shall promptly pay the amount owed to the other party. Percentage Rental shall be paid quarterly on the 15th day of the month immediately following each quarterly period in which the GROSS SALES are made. Notwithstanding expiration or sooner termination of this Lease, Tenant shall pay Landlord the Percentage Rental on the 15th day of the month immediately following expiration or sooner termination for the last quarterly period of the term of this Lease or fraction thereof. For purposes of computing Percentage Rental for the first and last
quarterly periods of the term of this Lease, if either are less than a full calendar quarter, the pro-rated minimum rental for such fractional period shall be deducted from the percentage of sales realized during such fractional period.
Together with the quarterly Percentage Rental, Tenant shall furnish Landlord with a written statement setting forth the total GROSS SALES made in, upon, through, or from, the leased Premises for the period covered by such Percentage Rental. Tenant also shall, upon Landlord's request, submit to Landlord true and complete copies of Tenant's quarterly state retail sales tax returns at the time they are furnished to the state. Landlord agrees to hold in confidence all gross sales figures, and other information obtained from Tenant's records. Landlord shall have the right, at its sole cost and expense, to audit the gross receipts of Tenant and the procedures incident thereto. Should Landlord determine that there is a variance between the reported gross sales and actual gross sales during any period such that such reported gross sales are less than actual gross sales or that any such variance is willful, the same shall be deemed a material breach of this Lease. In any case wherein it is determined that a variance exists between actual and reported gross sales and by reason thereof an incorrect amount of Percentage Rental was paid to
Landlord, Landlord or Tenant, as the case may be, shall forthwith pay to Tenant or Landlord such excess or deficiency and in the case of a deficiency, Tenant shall also pay to Landlord the cost incurred by Landlord in connection with said audit. As used herein, the term "GROSS SALES" means the selling price of or rental charges for all merchandise sold or delivered to customers in, at, on, or from any part of the leased Premises and the charges for all services
of any sort sold or performed in, at, on or from any part of the leased Premises and shall include sales and charges for cash or credit, regardless of collections in the case of the latter, but shall exclude returns and refunds in fact made by the Tenant, and the amount of any city, county, state or
federal sales, luxury or excise tax on such sales which is both added to the selling price, or absorbed therein, and paid to the taxing authority by Tenant.
A sale shall be deemed to be made in the demised Premises if an order therefor is secured or received in the leased Premises, whether or not such order is filled in the leased Premises or elsewhere.
The Tenant shall keep full, complete and proper books, records, and accounts of its daily gross sales, both for cash and on credit, for each separate department and concession at any time operated in the said premises. The Landlord and his agents and employees, upon reasonable notice, shall have the right at any and all times, during regular business hours,
to examine and inspect all of the books and records of the Tenant, including any sales tax reports, pertaining to the business of the Tenant conducted in, upon or from the said premises which Tenant shall produce upon demand by Landlord or Landlord's agents for the purpose of investigating and verifying the accuracy of any statement of gross sales.
If the first day upon which rent becomes payable is other than the first date of any calendar month, the rent for the balance of said month shall be prorated and paid by Tenant on a daily rate based upon a thirty (30) day month.
6. THE BUSINESS. Tenant shall continuously, during the entire
term hereof, including any extension, conduct and carry on Tenant's restaurant business in the demised Premises, and shall keep the Premises open for business and cause Tenant's business to be conducted therein during the usual business hours of each and every business day as is customary for businesses of like character, in the county in which the leased Premises are located, to be open for business; provided, however, that this provision shall not apply if the demised Premises should be closed and the business of Tenant temporarily discontinued therein on account of strikes, lockouts, damage to the building or equipment, or any cause beyond the reasonable control of Tenant, whether of the same or any other nature, or closed for not more than three (3) days out of respect of the memory of any deceased officer or employee of Tenant or the relative of any such officer or employee.
7. USE OF PREMISES. Tenant shall occupy and use the Premises
for the purpose of conducting thereon a restaurant business, for incidental purposes related thereto, or for any other legally permissible business or commercial venture; provided, however, that Tenant shall not use the Premises in such a manner as to violate any applicable law, rule, ordinance or regulation of any governmental body, or in violation of the certificate of occupancy issued for the leased Premises. Tenant shall, upon five (5) days' written notice from Landlord, discontinue any use of the leased Premises which is declared by any governmental authority having jurisdiction, or by the Landlord, to be in violation of law or said certificate of occupancy or which imposes any additional duty upon Tenant or Landlord with respect to the leased Premises or with respect to the use or occupation thereof.
8. ZONING, DISCLAIMER OF WARRANTIES AND CONDITION OF PREMISES.
Landlord makes no warranties or representations of any kind concerning the condition of the leased Premises or its fitness for the use intended by Tenant, or as to its
zoning, and hereby disclaims any personal knowledge with
Tenant accepts all real and personal property, if any, leased herein "AS IS", in its present condition without any warranty of Landlord whatsoever, express or implied, in
fact or by law. The foregoing acceptance "AS IS" applies to the Premises, whether or not it has been inspected,
fixtures which are readily visible to inspection, fixtures within the Premises which are not visible to inspection, including, but not limited to, the plumbing, electrical, heating and air conditioning systems, or personal property, if any.
9. TAXES, ASSESSMENTS, UTILITIES AND INSURANCE. It is
expressly understood and agreed that this is a triple net
a. TAXES. Tenant, at Tenant's sole cost, shall, as due,
make all payments of property taxes, assessments, and governmental charges, on both real and personal
property, during the entire term hereof. This shall include any taxes accrued during the term hereof, even though they are not billed until after the expiration of this Lease. All taxes, assessments, and governmental charges due from Tenant shall be payable to Landlord in equal monthly installments with the rent payment, beginning on the commencement date of this Lease and continuing on the first day of each month for the balance of the term, and shall be based upon the prior year's assessments but shall be subject to adjustment for the actual amount due for the current year. Any additional sums owed by Tenant to Landlord because of such adjustment shall be due with
the next succeeding month's minimum monthly base rental payment.
For the purposes of this section, "Property
Taxes" shall mean real property taxes, personal property taxes, occupancy taxes, assessments upon the property and the improvements which may be imposed by any governmental authority or agency, and any tax on
or measured by the rentals imposed wholly or partly in lieu thereof, but shall not include any net income, franchise, capital stock, estate or inheritance taxes, except as hereinafter provided. If, at any time during the term of this Lease, the method of taxation in effect on the date of this Lease shall be so changed that the whole or any part of the ad valorem real property taxes now imposed, assessed or levied shall be replaced, in whole or in part, as revenue sources by one or more replacement taxes which are measured or calculated by or based, in whole or in part, upon the land, the improvements or on the rents derived therefrom and imposed upon Landlord, then Tenant shall bear the expense of and reimburse Landlord therefor. Tenant reserves the right to contest in good faith any such taxes, assessments, or charges and in such event shall indemnify and hold Landlord harmless from any cost, expense, or penalties in connection therewith.
b. Utilities. Tenant shall pay directly to the applicable
company the cost of all utilities consumed on the Premises, including but not limited to power, electricity, gas, water, garbage disposal, sewer services, and telephone.
c. Insurance. Tenant, at its sole cost, agrees that it
will procure and keep in full force throughout the term hereof, at a minimum, the following types and amounts of insurance:
i. Public Liability: Personal Injury in the amount
of $500,000 per person, and $l,000,000 per occurrence; Property Damage in the amount of $50,000 per occurrence.
ii. Casualty: Fire and Extended Coverage for 100% of replacement cost of buildings, leasehold improvements and furnishings, fixtures and equipment, excluding foundation and excavation costs.
iii. Business Interruption: In order to assure the payment of the rent and taxes hereunder, Tenant
shall obtain business interruption insurance coverage, naming Landlord as a coinsured, that shall include an increment sufficient to cover the rent and taxes payable hereunder for at least sixteen (16) weeks. Tenant shall assign to Landlord the proceeds of any proof of loss under such business interruption policy to the extent of the rent and taxes payable hereunder for the period of the loss, together with any other sums due Landlord from Tenant.
Notwithstanding any damage or destruction of the leased Premises, rent, taxes, and any other sums payable hereunder shall not abate, although the leased Premises are closed for restoration.
Such insurances shall be procured from an
insurer authorized to do business in the state in which the leased Premises are located and approved in writing by Landlord; shall provide primary and not excess coverage; name Landlord as an additional insured; waive subrogation rights, if any, which the insurer may have against Landlord; and require that Landlord be given at least sixty (60) days prior written notice before any such insurance may be canceled or changed with respect to the parties, coverage, limits of liability or costs of insurance.
Tenant may, at its option, bring its obligations to insure under this section within the coverage of any so-called blanket policy or policies of insurance which it may now or hereafter carry, by appropriate amendment, rider, endorsement, or otherwise; provided, however,
that the interest of Landlord shall thereby be as fully protected as it would be otherwise if this option to Tenant to use blanket policies were not permitted.
Tenant shall, prior to the commencement of the term hereof, deliver to Landlord a copy of such policy or policies, or certificate of insurance in the case of blanket coverage, together with satisfactory evidence that the policy is in full force and effect on the commencement date of this Lease.
In the event that Tenant fails to maintain any of the above required insurance coverages, the Landlord may, upon giving to Tenant ten (10) days notice, procure any or all of said insurance coverage, as Tenant's agent, and pay the premium therefor, and Tenant shall be liable to pay such premiums to Landlord immediately upon notice of payment thereof and failure to pay same shall be deemed a breach of the Tenant's covenant to pay rent hereunder.
10. INDEMNIFICATION OF LANDLORD. It is understood and agreed that Tenant releases Landlord from, and indemnifies Landlord against, all claims, demands, charges, liens, causes of action, and proceedings, of every kind and nature, connected with the person or property of Tenant, arising directly from the use of the leased Premises or any public sidewalk, by anyone other than an agent or representative of Landlord.
11. ALTERATIONS AND IMPROVEMENTS. Any alterations or improvements to the leased Premises shall require the prior written approval of the Landlord. Upon receiving written approval of the Landlord, Tenant may, provided the value of the premises is not thereby impaired, make improvements to the premises or may install or replace equipment, lighting, partitioning or furnishings within the premises at its sole cost and expense as may be required by the business conducted therein and such installations shall remain the property of Tenant and may be removed from the premises at any time during the term or at the termination of Tenant's occupancy hereunder, provided that any damage caused by such removal shall be repaired by Tenant. Tenant may elect not to remove any or all of such improvements and installations, in which case the same shall become the property of Landlord upon Tenant's surrender of the premises. Tenant agrees that any and all alterations or additions shall be made in compliance with the building codes and ordinances, laws and regulations applicable to the premises. Should a building or other permit or permits are required by Tenant to accomplish said improvements, Landlord agrees to execute all documents required to obtain said permits including dedication documents if such are required to obtain said permits.
In addition, Tenant further agrees to provide Landlord with fifteen (15) days advance written notice of its intention to perform any work on the leased Premises which may give rise to any mechanic's lien, which notice will include the names and addresses of the contractor(s) who will perform said work. Tenant shall also post and record
a notice of nonresponsibility. Upon completion of said
work, Tenant will record a notice of completion in accordance with the laws of this state and provide Landlord with a copy of same within five (5) days after recordation.
12. MAINTENANCE. Tenant shall keep the interior and exterior
of the buildings and appurtenances, including the parking areas, the roof, and all building systems, including, but not limited to, plumbing, electrical, heating and cooling systems, which are a part of the demised premises, in good working order, repair and condition at Tenant's sole cost and expense throughout the term of this Lease.
Tenant shall, further, at its sole cost, perform all necessary repairs and maintenance required hereunder, and/or which are made necessary by the use or misuse of the leased Premises by Tenant or its agents, employees, or representatives, or by any other persons while in or about the leased Premises. All such work shall be at least equal in quality to the original work.
If, at any time during the term hereof, it shall be required by any governmental agency, as a condition to doing business on the leased Premises, that certain repairs or improvements be made, or fixtures or equipment be furnished or replaced, according to plans and specifications prescribed by such agency, Tenant shall bear the full cost thereof, with no reimbursement from Landlord.
13. ASSIGNMENT. Tenant may not assign this lease in whole or
in part, or sublet the Premises, without first obtaining
the prior written consent of Landlord, which consent shall not be unreasonably withheld.
Landlord, in granting or denying its consent hereunder, shall be entitled to consider, as a condition to granting its approval as to any proposed assignee or sublessee, the credit, character and business or professional standing of such proposed assignee or sublessee; whether the occupation of such proposed assignee or sublessee shall be consistent with the terms and conditions of this Lease; and whether such proposed assignee or sublessee agrees to be bound and directly responsible for all of the Tenant's past, present, and future obligations hereunder. The consent of Landlord to any such assignment or subletting shall in no event be construed as releasing Tenant from its past, present and future liabilities and obligations hereunder.
14. CONDEMNATION. If any part of the premises shall be taken
or condemned for a public or quasi-public use, and a part thereof remains which is reasonably suitable for the use of the premises made by Tenant immediately prior to such condemnation, this lease shall, as to the part so taken, terminate as of the date that possession shall vest in the condemnor and the rent payable hereunder shall be adjusted so that the Tenant shall be required to pay for the remainder of the term only such portion of such rent as the value of the part remaining after the condemnation bears to the value of the entire premises at the date of condemnation. If all of the premises are taken or condemned, or if so much of the premises is taken or condemned that, in the reasonable judgment of Tenant, the aforesaid use by Tenant shall be substantially impaired, this lease shall, at Tenant's option, thereupon terminate. In the event of such termination, no further rent shall accrue hereunder from the date that Tenant notifies
Landlord of such fact and any prepaid rent shall be
refunded to Tenant. In the event of a dispute between Landlord and Tenant under this clause, the matter shall be submitted to arbitration in accordance with the rules of the American Arbitration Association. Landlord shall be exclusively entitled to any and all compensation, damage, income, rent, awards and any other interest therein whatsoever which may be paid or made in connection therewith and Tenant shall have no claim whatsoever against Landlord for the value of the unexpired term or otherwise; provided, however, that Tenant shall be entitled to any award made expressly for and only for the unamortized portion of any and all improvement costs of Tenant.
15. TRANSFER OF INTEREST IN CORPORATION. In the event that the Tenant is a corporation, then, when either the responsible operational officer of the Tenant shall be replaced by another person as the responsible operational officer; or there shall be a cumulative transfer of over fifty (50%) percent of equity interest in the Tenant within any two (2) year period, then such transfer or change of control shall constitute an assignment as set out herein above.
In addition, Tenant shall advise Landlord and thereafter keep Landlord advised of the names, addresses and titles of the officers, directors and resident agent of the corporation in the state in which the Premises are
located, the names and addresses of the shareholders and the number of shares issued to each, and the address of the principal office of the corporation.
TENANT shall reimburse LANDLORD for all insurance premiums connected with or applicable to the Leased Premises for whatever insurance policy the LANDLORD, at its sole and
exclusive option, should select.
16. DEFAULTS. The occurrence of any of the following shall constitute a default and material breach of this Lease:
a. The abandonment of the leased Premises by Tenant.
Abandonment is herein defined to include, but is not limited to, any absence by Tenant from the leased Premises for five (5) days or longer;
b. A failure by Tenant to pay the rent, including
Percentage Rental, additional rent or to make any other payment required to be made by Tenant hereunder on the date such payment is due and owing;
c. The making by Tenant of any general assignment for the
benefit of creditors; the filing by or against or of a petition for reorganization or arrangement under any law relating to bankruptcy, unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days; the appointment of a trustee
or receiver to take possession of substantially all of Tenant's assets located at the leased Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the leased Premises or of Tenant's interest in this lease, where such seizure is not discharged within thirty (30) days.
d. The closing of the business of Tenant on the leased
Premises for a period of five (5) or more consecutive days without the written consent of the Landlord; and
e. A failure of Tenant to comply with any of the terms,
covenants or conditions of this Lease.
17. REMEDIES. In the event of any such default or breach by Tenant, as provided herein, wherein such default is not cured after Landlord has given five (5) days' notice to Tenant in writing, in the event of a default in the payment of money, or 15 days in the event of a default for any other reason, Landlord, at any time thereafter, at Landlord's option and without limiting the Landlord in the exercise of any other rights or remedy which Landlord may have at law or in equity by reason of such default or breach, with or without notice or demand, may:
a. Reenter the leased Premises with or without process of
law and take possession of the same and of all equipment and fixtures of Tenant therein, and expel or remove Tenant and all other parties occupying the leased Premises, using such force as may be reasonably necessary to do so, without being liable to any prosecution for such reentry or for the use of such force, and without terminating this Lease, at any time and from time to time, to relet the leased Premises or any part thereof for the account of Tenant, for such term, upon such conditions and at such rental as Landlord may deem proper. In such event Landlord may receive and collect the rent from such reletting and apply it against any amounts due from Tenant hereunder, including, without limitation, such expenses as Landlord may have incurred in recovering possession of the leased Premises, placing the same in
good order and condition, altering or repairing the same for reletting, and all other expenses, commission and charges, including attorney's fees, which Landlord may have paid or incurred in connection with such repossession and reletting. Landlord may execute any lease made pursuant hereto in Landlord's name or in the name of the Tenant, as Landlord may see fit, and the Tenant thereunder shall be under no obligation to see to the application by Landlord of any rent collected by Landlord, nor shall Tenant have any right to collect any rent thereunder. Whether or not the leased Premises are relet, Tenant shall pay Landlord all amounts required to be paid by Tenant up to the date of Landlord's reentry, and thereafter Tenant shall pay Landlord, until the end of the term hereof, the amount of all rent and other charges required hereunder, less the proceeds of such reletting as provided herein. Such payments by Tenant shall be due at such times as are provided elsewhere in this Lease, and Landlord need not wait until the termination of this Lease to recover them by legal action or otherwise. Landlord shall not, by any reentry or other act, be deemed to have terminated this Lease or the liability of Tenant for the total rent hereunder unless Landlord shall give Tenant written notice of Landlord's election to terminate this lease.
b. Give written notice to Tenant of Landlord's election to
terminate this lease, reenter the leased Premises, with or without process of law, and take possession of the same and of all equipment and fixtures therein, and expel or remove Tenant and all other parties occupying the leased Premises, using such force as may be reasonably necessary to do so, without being liable to any prosecution for such reentry or for the use of
such force. In such event, Landlord shall thereupon
be entitled to recover from Tenant:
i. the worth at the time of award of any unpaid rent
which had been earned at the time of such
ii. the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss Tenant proves could have been reasonably avoided; plus
iii. the worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award, exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus
iv. any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease, or which, in the ordinary course of things, would be likely to result therefrom. As used in Subsection i and ii above, the "worth at the time of award" is computed by allowing interest at the rate of ten percent (10%) per annum. As used in Subsection iii above, the "worth at the time of award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of _____________ at the
time of award, plus one percent (l%).
18. NON-DEFAULT OF TENANT. It is understood and agreed that in the event of any change in, or transfer of title of Landlord in or to the demised Premises, or any part thereof, whether voluntary or involuntary, or by the act of Landlord or by operation of law, Tenant shall be under no obligation to
pay rents thereafter accruing until notified in writing by Landlord of such change in title and given satisfactory proof thereof, and that the withholding of such rents in the meantime shall not be in any sense a default upon the part of Tenant.
19. DESTRUCTION OF BUILDING. If the building on said premises shall be damaged or rendered untenantable by fire or other casualty, the Tenant shall promptly repair or replace said building so that Tenant may continue in occupancy, and rent shall not abate as a result of any such damage. Tenant shall have the access to any insurance proceeds available
by reason of such damage or destruction to the building. It is further understood and agreed that in case of any damage or destruction occurring during the last five (5) years of the original term of this lease, or during any extension of the term, to the extent of 50% or more of the insurable value of the building, Tenant may at Tenant's option, to be evidenced by notice in writing given to Landlord within thirty (30) days after the occurrence of such damage or destruction, in lieu of repairing or replacing said building, elect to terminate this lease as of the date of the damage or destruction, in which event Landlord shall be entitled to receive the proceeds of any insurance representing the insured value of the building exclusive of any such proceeds which are attributable to the personal property of tenant, which such latter proceeds shall belong to Tenant.
20. LIABILITY FOR DAMAGES. Tenant, as a material part of the consideration to be rendered to the Landlord, hereby waives all claims against the Landlord for damage to goods, wares and merchandise, in, upon, or about the Premises, and for injuries to persons in or about the Premises from any cause arising at any time.
21. COVENANTS AGAINST LIENS; INSPECTION. Tenant covenants that Tenant will not suffer nor will Tenant suffer to be attached, any lien or claim of lien upon the leased Premises or any part thereof by reason of any act or omission on the part of Tenant, its agents or employees, whether arising
out of any work performed, materials furnished, taxes owed, or obligations incurred by Tenant, or otherwise. Should the leased Premises at any time hereafter be subjected to any such lien, then Tenant shall within fifteen (15) days after written notice to Tenant of the existence of said lien, cause said lien to be bonded or discharged and otherwise shall save Landlord harmless on account thereof. Tenant must further provide notice of this restriction in a place visible to all within and about the leased Premises.
Tenant shall indemnify and save Landlord harmless from and against any lien or claim of lien attached to or upon the Premises or any part thereof by reason of any act or omission on the part of Tenant.
Landlord, or Landlord's agents, shall at all reasonable times have the right to enter upon the demised Premises for the purpose of inspecting the same, showing the same to
prospective purchasers, or tenants, if necessary, and for any other reason deemed necessary, or desirable, by Landlord, and for the purpose of posting or keeping posted notices of non-responsibility or any or all forms of notice reasonably necessary or proper to protect Landlord or the Premises against mechanic's or materialmen's liens, or charges, or other liens or charges which might or could arise out of the use of the Premises by Tenant, or the construction of the improvements or the making of alterations or repairs to the Premises.
22. CONTEST OF LIENS AND ENCUMBRANCES BY TENANT. Tenant shall have the right to contest, in good faith, and by appropriate legal proceedings, the validity or amount of any
mechanic's, laborer's, materialman's lien or other claimed lien or encumbrance, and in such event, shall indemnify and hold Landlord harmless from any cost and expense in connection therewith.
23. FIXTURES AND PERSONAL PROPERTY. All restaurant and other equipment and fixtures, presently the property of Landlord, located on the leased Premises, and more particularly described in Exhibit "C", attached hereto, shall remain the property of Landlord and shall, at all times, remain on the leased Premises. It is agreed that all furniture, fixtures and equipment installed by Tenant in the premises shall at all times be and remain personal property, regardless of the method in which the same is affixed to the premises and may be removed by Tenant at the expiration or sooner termination of this Lease. Tenant shall, at its expense, repair any damage to the building caused by such removal.
24. SIGNS. Tenant may affix, erect and maintain on the premises such signs or advertisements as Tenant shall deem
reasonably necessary to the conduct of its business;
provided, however, that the cost of erection and maintenance of any such sign or advertisement shall be the responsibility of Tenant. At the expiration of this Lease, Tenant may, at its option, remove all such signs.
25. COVENANT OF QUIET ENJOYMENT. Landlord covenants and agrees to and with Tenant that at all times, when Tenant is not in default under this Lease, and during the term of this Lease, Tenant's quiet and peaceable enjoyment of the premises shall not be disturbed or interfered with by Landlord or any person claiming by, through, or under Landlord.
26. TIME OF ESSENCE. Time is hereby expressly declared to be of the essence of this Lease and all covenants, agreements, conditions and obligations herein contained.
27. SURRENDER. At the expiration of the term or any extension of the term of this Lease, Tenant agrees to quit and surrender the possession of the premises to Landlord in as good condition as at the commencement hereof, excepting reasonable wear and tear, damage by acts of God and the elements, and the perils covered by a standard form Fire Insurance Policy with extended coverage endorsement or any peril insured against.
28. HOLDING OVER. Any holding over by Tenant after expiration of the term hereof or any extension thereof shall be construed as a tenancy from month to month, subject to all the conditions of this Lease and at the rental rate effective as of the last month of the term expired. Either
party may terminate such month to month tenancy by giving
to the other thirty (30) days written notice of its intention to terminate. The provisions of this paragraph do not affect Landlord's right of reentry or of any rights of Landlord hereunder or as otherwise provided by law.
29. RIGHTS OF PARTIES. Either Landlord or Tenant may from time to time at its option exercise all rights or remedies which either may have at law or in equity and nothing herein contained shall be construed as in any way abridging of waiving such rights or remedies; and any consent, waiver, compromise or indulgence by one party hereto of or under
any of the provisions of this Lease, or as to any breach or default hereunder by the other party hereof, shall not constitute or be construed as a waiver of the former party's right to enforce performance of the conditions and terms hereof at all other times.
30. SUBORDINATION. Tenant agrees upon request of Landlord to subordinate this Lease and its rights hereunder to the lien of any mortgage, deed of trust or other voluntary hypothecation charged against the premises or any land, building or improvements included therein, or of which the premises are a part, or any portion or portions thereof,which mortgage, deed of trust, or other voluntary hypothecation is to be recorded. Tenant further agrees to execute at any time and from time to time such documents as may be required to effectuate such subordination; provided, however, that Tenant shall not be required to effectuate such subordination or other consents hypothecating any interest in the premises unless the mortgagee, beneficiary or hypothecary creditor named in such mortgage or deed of trust shall first agree in writing that so long as Tenant is not in default of any of the terms, covenants or conditions of this Lease, neither this Lease nor any of the rights of Tenant hereunder shall be terminated or modified or be subject to termination or modification by virtue of any provision of such mortgage, deed of trust or other hypothecation, or any sale of the premises upon foreclosure or other exercise of remedies by such mortgagee, beneficiary or hypothecary creditor.
31. AFFIDAVIT AND MEMORANDUM OF LEASE. At the option of Landlord, simultaneously with the execution and acknowledgement of this Lease, the parties shall execute an "Affidavit and Memorandum of Lease" for recording purposes. In no event shall such "Affidavit and Memorandum of Lease" set forth the rental or other charges payable by the Tenant under this Lease, and such "Affidavit and Memorandum of Lease" shall expressly state that it is executed pursuant to the provisions contained in this Lease and is not
intended to vary the terms and conditions of this Lease. In the event that Landlord or Tenant shall terminate and
cancel this Lease pursuant to the provisions contained
herein for any cause other than Landlord's breach thereof, Tenant shall prepare, execute, in recordable form, and deliver to Landlord, a release and cancellation of this Lease.
32. NOTICES. Any written notice provided to be given hereunder to Landlord shall be given to Landlord at the above address and any notice given to Tenant shall be addressed to Tenant at Tenant's office and principal place of business. Such notice shall be given by U.S. Mail, certified or registered, return receipt requested, properly addressed and postage prepaid. The address of either party may be
changed by written notice to the other.
33. BINDING FUTURE PARTIES. Each and all of the terms and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal and legal representatives, successors and assigns.
34. CONSTRUCTION OF WORDS. Wherever the singular number is used herein, the same may include the plural if the context so requires, and any gender used herein may likewise include any other gender.
35. PARAGRAPH AND SECTION HEADINGS. Paragraph and Section headings contained herein are for convenience only and shall in no way limit or restrict the interpretation to be placed upon any word or phrase following each heading.
36. NO ORAL MODIFICATION. This instrument contains the entire agreement made between the parties and may not be modified orally or in any manner other than by an agreement in writing signed by all the parties hereto or their
respective successors in interest.
37. BROKERAGE. Landlord and Tenant each represent and warrant to the other that neither of them have entered into any agreement with any person, firm or corporation, or become indirectly a party to any such agreement, and that neither of them has taken any other action or is aware of any facts that could result in the assertion of any claim against the other party for the payment of any commission or brokerage or finder's fee in connection with the execution of this lease.
38. ATTORNEY'S FEES. In the event that Landlord retains counsel for any purpose required pursuant to this Lease, including but not limited to obtaining possession of the leased Premises or recovering any sum due under this Lease, Tenant shall pay to Landlord all costs and expenses including reasonable attorney's fees incurred by Landlord, whether or not suit is filed. Should Landlord be named as a defendant in any suit brought against Tenant or Landlord, arising out of Tenant's occupancy hereunder, Tenant shall pay to Landlord, Landlord's costs and expenses incurred in defense of such suit, including the reasonable attorney's fees of Landlord.
39. INTEREST. In the event Landlord is required or permitted
to advance monies on behalf of Tenant, or in the event that Tenant shall fail to pay the rent, additional rent or other sums hereunder, the monies so advanced and the sums which Tenant shall have failed to pay shall bear simple interest at the rate of twelve (12%) percent per annum or the
maximum rate of interest permitted under the laws of this
state, if said maximum rate is less than twelve (12%) percent per annum from the date of such advance or the date upon which such sums were due, as the case may be.
40. COUNTERPARTS. This lease may be executed in any number of counterparts which, when taken together, shall be deemed to be an original.
41. LEASE NOT BINDING. This lease shall not be deemed binding or in effect until fully executed by both Tenant and Landlord.
42. GOVERNING LAW. All matters pertaining to this Agreement (including its interpretation, application, validity, performance and breach), shall be governed by, construed and enforced in accordance with the laws of the State of
. The parties herein waive trial by jury and
agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in
County, State of . In the event that
litigation results from or arises out of this Agreement or the performance thereof, the parties agree to reimburse the prevailing party's reasonable attorney's fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled. In such event, no action shall be entertained by said court or any court of competent jurisdiction if filed more than one year subsequent to the date the cause(s) of action actually accrued regardless of whether damages were otherwise as of said time calculable.
43. WAIVER BY TENANT. Tenant hereby waives any and all right to assert affirmative defenses or counterclaims in any eviction action instituted by Landlord with the exception of an affirmative defense based upon payment of all amounts claimed by Landlord not to have been paid by Tenant. Any other matters may only be advanced by a separate suit instituted by Tenant.
44. NOTICE ON RADON GAS. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in this state. Additional information regarding radon and radon testing may be obtained from your county public health unit.
45. RELIANCE ON FINANCIAL STATEMENT. Tenant shall furnish concurrently with the execution of this lease, a financial statement of Tenant prepared by an accountant. Tenant, both in corporate capacity, if applicable, and individually, hereby represents and warrants that all the information contained therein is complete, true, and correct. Tenant understands that Landlord is relying upon the accuracy of the information contained therein. Should there be found
to exist any inaccuracy within the financial statement
which adversely affects Tenant's financial standing, or should Tenant's financial circumstances materially change, Landlord may demand, as additional security, an amount equal to an additional two (2) months' rent, which additional security shall be subject to all terms and conditions herein, require a fully executed guaranty by a third party acceptable to Landlord, elect to terminate this Lease, or hold Tenant personally and individually liable hereunder.
IN WITNESS WHEREOF, the parties have duly executed this lease the day and year first above written. Individuals signing on behalf of a principal warrant that they have the authority to bind their principals.
Signed, sealed and delivered in the presence of:
STATE OF ___________________
COUNTY OF ___________________
The foregoing instrument was acknowledged before me, this
_________________ day of ____________________, 19 _____.
______________________________ Notary Public
(SEAL) State of _____________________
My Commission Expires: ______________________________
STATE OF ___________________
COUNTY OF ___________________
The foregoing instrument was acknowledged before me, this
_________________ day of ____________________, 19 _____.
______________________________ Notary Public
(SEAL) State of _____________________
My Commission Expires: ______________________________
The following described real property, together with all
which has a street address as follows:
EXHIBIT "B" (Attach copy of survey)