HomeMy WebLinkAbout2023-034AAGREEMENT OF LEASE
THE AGREEMENT OF LEASE ("Lease") made and entered into as of the Lease Date
by and between Indian River County, a political subdivision of the State of Florida, whose address
is 1801 277t' Street, Vero Beach, Fl 32960, hereinafter "Landlord" and Flow Smart Five
Sebastian, LLC, a Florida limited liability company, whose address is 8245 Boone Boulevard,
Suite 650, Vienna, VA 22182, hereinafter, "Tenant".
SECTION 1
BASIC LEASE PROVISIONS
1.01 The following basic lease provisions are an integral part of this Lease and as
referred to in other Sections of this Lease.
(a) Lease Date: April 13, 2023 (which shall be the date on which
the last party hereto executes this lease).
fib) Landlord: Indian River County,
A Political Subdivision of the State of Florida
(c) Tenant: Flow Smart Five Sebastian, LLC, a Florida limited
liability company
Tenant's Address: 8245 Boone Boulevard
Suite 650
Vienna, VA 22182
rye,) Leased Premises: The Leased Premises contains approximately 3,200
square feet of floor area (which floor area is
determined by measuring from the exterior face of
exterior walls and from the center of interior party
walls). The dimensions of the Leased Premises are
approximate. The Leased Premises is located within
the Center, and the Center is located at 1929 -1931
US Highway 1, Sebastian, Florida 32958.
fn Original Term and Options: Original Term: Ten (10) Years beginning on the
Rent Commencement Date.
Renewal Term: Two (2) consecutive five (5) year
options
(g) Minimum Monthly Rent: Tenant shall pay Landlord rent by the 11 calendar
day of each month during the Term, the minimum
monthly rent ("Minimum Monthly Rent")
Years
Rent/SF
Annual Rent
Minimum Monthly
Rent
1-5
$15.00
$48,000.00 + sales tax
$4,000.00 + sales tax
6-10
$16.50
$52,800.00 + sales tax
$4,400.00 + sales tax
11-15 (151 option)
$18.15
$58,080.00 + sales tax
$4,840.00 + sales tax
16-20 (2"d option)
$19.96
$63,888.00 + sales tax
$5,324.00 + sales tax
Security Deposit: Two months rent.
fi
Trade Name: Five Guys
Broker: Colliers International Florida LLC
SECTION 2
DEFINED TERMS
"Calendar Year" shall mean each calendar year wholly or partially within the Term.
"Center" shall mean the entire parcel of land, which is, labeled as Sebastian Corners Retail
Center, LLC on Exhibit "A" hereto which is located at and includes 1919 - 1939 US Highway 1,
Sebastian, Indian River County, Florida 32958 and which contains approximately eighteen
thousand (18,000) square feet of leasable floor area.
"Commencement of the Term" shall mean the Rent Commencement Date.
"Common Areas" shall mean all of the automobile parking areas, driveways, and footways,
landscaped areas, loading facilities and other areas and facilities in the Center which are designated
as Common Areas from time to time by Landlord.
"Common Area Maintenance Expenses" Shall include all costs, expenses and expenditures
(including capital expenses) of operating and maintaining the Common Areas and the Center in a
manner deemed reasonable and appropriate by Landlord, including, but not limited to: all costs and
expenditures incurred in repairing, lighting, cleaning, painting, striping, surfacing and resurfacing,
policing and providing security services; the costs and expenditures of insurance, including the Cost
of insurance on the Center; the costs and expenditures of removal of snow, ice, rubbish, and debris;
the costs and expenditures of regulating traffic; the costs and expenditures of the replacement of
paving, curbs, walkways, landscaping, drainage and lighting facilities; the costs and expenditures for
legal and accounting services, and for other professional and consulting services; the costs and
expenditures for Utilities; the costs and expenditures of planting, replanting, and replacing flowers
and shrubbery; the costs and expenditures, including counsel and appraisal fees, incurred in
connection with any appeals of any Taxes; management fees paid by Landlord; costs associated with
any restrictive covenant; and an administrative fee to Landlord relative to the operation of the
2
Common Areas equal to fifteen percent (15%) of the foregoing costs. Common Area Maintenance
Expenses shall not include:(i) leasing commissions payable by Landlord; (ii) depreciation on the
Center or equipment therein; (iii) the costs of special services or utilities separately charged to
individual tenants of the Center; (iv) rents under any ground lease or any other underlying lease
wherein Landlord is the lessee; (v) interest or principal payments on any financing for the Center
and Common Areas, including permit, license and inspection fees, (vi) the cost of any work or
alterations performed by Landlord incurred in renovating, improving, decorating, painting or re-
decorating vacant tenant space or space of other tenants in the Center; (vii) any costs for which
Landlord is reimbursed by insurance proceeds or condemnation awards; (viii) any costs for which
Landlord is reimbursed by tenant(s) of the Center (other than as part of such other tenant's share of
Common Area Maintenance Expenses); (ix) professional fees incurred by Landlord in the
preparation of leases or in disputes with tenants of the Center; (x) costs and expenses associated
with the cleanup of any hazardous waste substances required by law to be removed or neutralized
to the extent not caused by Tenant; (xi) taxes due as a result of or in connection with the sale of the
Center or underlying land or any recordation or transfer taxes; or (xi) costs incurred by Landlord
in undertaking a major and comprehensive renovation of the entire Center.
"Cost of Insurance on the Center" shall be the sum of all premiums payable under all policies of
insurance carried by Landlord in connection with the Center or which cover any one or more of the
buildings or other improvements in the Center and the costs incurred by Landlord to repair any damage
by fire or other casualty to the Center, to the extent that such cost was not covered by Landlord's
insurance policies by reason of deductible amounts set forth therein. In the event that Landlord shall,
at any time during the Term, insure the Center or any part thereof or any buildings or improvements
therein under a "package policy" or a policy of "blanket coverage" insuring other property not in the
Center in addition thereto, the amount of the premiums payable under such policy which are attributable
to the Center and the buildings and improvements therein shall be determined by Landlord on an
equitable basis and such amount shall be included in the Cost of insurance on the Center for the
purposes hereof.
"Effective Rate" shall mean the rate per annum which is the lesser of. (a) three hundred
(300) basis points in excess of the Prime Rate or (b) the maximum rate permitted by law.
"Environmental Statutes" shall mean all Laws concerning the protection of public safety or
the environment, including, but not limited to, those relating to the generation, use, handling,
treatment, storage, transportation, release, emissions, disposal, remediation or presence of any
material including Solid Waste, Hazardous Waste, Hazardous Substances or Hazardous Materials.
"Governmental Authorities" shall mean all federal, state, and municipal governmental
entities and all departments, commissions, boards and officers thereof.
"Hazardous Substances, Solid Waste, Hazardous Waste, and Hazardous Materials" will
have the meanings defined in any Environmental Statute and shall in this Lease collectively be
called Hazardous Substances.
"Landlord's Address for Notices" shall mean the following address:
Indian River County
Board of County Commissioners
Attn: Public Works Director
1801 27th Street
Vero Beach, FL 32960
"Landlord's Address for Pam" shall mean the following address:
Indian River County
Board of County Commissioners
Attention: Finance
1801 27th Street
Vero Beach, FL 32960
"Landlord's Work" shall mean the work to be completed by Landlord as described in 6.01.
"Laws" shall mean all current and future federal, state, and municipal statutes, ordinances,
regulations, order, directives, and other requirements of law or common law and of all departments,
commissions, boards, and officers of Governmental Authorities (as amended from time to time).
"Lease" shall mean this Lease Agreement.
"Lease Date" shall mean Upon unconditional approval and mutual execution of lease document
(Board of County Commission approval) and delivery of space by Landlord to Tenant.
"Leased Premises" shall mean unit 1929 of the Center (indicated as vacant or former Las
Palmas on Exhibit A).
"Minimum Hours" shall mean the same hours and days that uses similar to the Authorized
Use are conducted in the area of the Center, but in any event, no less than the Special Minimum
Hours.
"Recorded Agreements" shall mean all agreements, covenants, easements, restrictions or
other matters now of record or hereafter placed of record.
"Rent" shall mean all Minimum Monthly Rental, Additional rent and other sums payable
by Tenant under this Lease.
"Rent Commencement Date" shall mean the date which is one hundred fifty (150) days
the date that Tenant receives all permits, variances and governmental approvals necessary to
construct Tenant's store pursuant to Five Guys specifications and operate Tenant's store in the
Premises. RE: Notwithstanding the foregoing, rent and all additional charges shall commence not
later than the date on which Tenant opens for business to the public.
".Special Minimum Hours" shall mean eight (8) hours a day, six (6) days a week.
"Taxes" shall mean:
(a) All levies, taxes (including payments required to be made in lieu of taxes,
including sales tax on rental payments), regular assessments, special assessments, charges, liens,
licenses and permit fees, and charges for public utilities, imposed, assessed or charged on or with
respect to Landlord or the Leased Premises or the Center by any Governmental Authority or
under any Law or Recorded Agreement; and
(b) All other charges, imposts or burdens of whatsoever kind and nature, whether or
not particularized by name and whether general or special, ordinary or extraordinary, foreseen or
unforeseen, which at any time during the Term may be created, levied, assessed, imposed or charged
upon or with respect to the Leased Premises, the Center, or any improvements made thereto, or on
any part of the foregoing or any appurtenances thereto, or directly upon this Lease or the Rent, or
amounts payable by any subtenant or other occupants of the Leased Premises or the Center, or upon
or with respect to the leasing, operation, use or occupancy of the Leased Premises or the Center, or
upon this transaction or any documents to which Tenant is a party or successor in interest, or against
Landlord because of Landlord's estate or interest herein, by any Governmental Authority, or under
any Law, including, among others, all special tax bills, and general, special or other assessments and
liens or charges made on local or general improvements or under any governmental or public power or
authority whatsoever, and transit taxes, taxes based upon the receipt of Rent including gross receipts or
sales taxes applicable to the receipt of Rent, and personal property taxes imposed upon the fixtures,
machinery, equipment, apparatus, furniture, and other personal property used in connection with the
Leased Premises and/or the Center. The term "Taxes" shall not include any net income or excess profit
taxes assessed against Landlord, or any corporation capital stock and franchise taxes imposed upon
Landlord; provided, however, that, if at any time prior to the expiration of the Term, any net income
tax, assessment, levy or charge shall be imposed upon Landlord or the Leased Premises or the Center
in lieu of, in place of, or in addition to any other tax or other charge included in the definition of Taxes
set forth above, and shall be measured by or based upon net income or profits derived from real estate
(as distinguished from net income or profits generally), then such new tax, assessment, levy or charge
shall be included in "Taxes" to the extent that such new tax, assessment, levy or charge would be
payable if the Center were the only property of Landlord subject thereto and the income and profits
received by Landlord from the Center were the only income and profits of Landlord.
"Tenant's Final Plans" shall mean the plans and specifications as approved by Landlord as
described in Section 6.03(a).
"Tenant Permits" shall mean the applicable building permits required to commence
construction of the Tenant's Work.
"Tenant's Pro Rata Share" shall mean a fraction, the numerator of which shall be the number
of square feet of leasable floor area of the Leased Premises, and the denominator of which shall be
the number of square feet of leasable floor area of the Center, which is estimated to be 17.77%;
"Tenant's Pro Rata Share of Common Area Maintenance Expenses" for each Calendar Year
shall be equal to the total amount of the Common Area Maintenance Expenses for such Calendar
Year multiplied by Tenant's Pro Rata Share.
"Tenant's Pro Rata Share of Insurance" for each Calendar Year shall be equal to the total amount
of the Cost of Insurance on the Center for such Calendar Year multiplied by Tenant's Pro Rata Share.
"Tenant's Pro Rata Share of Taxes" for each Calendar Year shall be equal to the total amount
of Taxes for such Calendar Year multiplied by the Tenant's Pro Rata Share.
"Tenant's Work" shall mean the work to be completed by Tenant as described in Sections 6.02
and 6.03.
"Utilities" shall mean heat, sewer, water, electricity, and any other utilities provided to, or
used or consumed in or on the Leased Premises.
SECTION 3
GRANT: TERMS
3.01 Grant.
(a) Landlord hereby leases the Leased Premises to Tenant; and Tenant hereby
rents the Leased Premises from Landlord.
(b) In addition, Tenant shall have the non-exclusive right to use the Common Areas, in
common with all others designated from time to time by Landlord as being entitled to such use; subject,
however, to the terms and conditions of this Lease and to rules and regulations for the use thereof as
prescribed from time to time by Landlord. Landlord may at any time: withdraw or add areas to the
Common Areas and/or the Center; alter the Common Areas and/or the Center; construct or remove
buildings or other improvements upon or from the Common Areas and/or the Center; and grant
easements within the Common Areas and/or the Center (provided that at all times adequate parking
facilities are available for common use of, and access and visibility to, the Leased Premises is not
obstructed in a material and substantial manner).
(c) Tenant shall have the right to reserve up to two parking stalls near the front of the
store entrance for Tenant's carryout and third -party delivery service pickup. (Pending City of Sebastian
approval)
(d) Tenant, if permitted by the City of Sebastian, may seat and serve its customers in
the outdoor seating area ("Outdoor Seating Area") which shall be exclusively reserved for Tenant. The
boundaries of the outdoor seating area (which shall consist of a portion of the current parking area in
the Center) shall be developed as part of Tenant's plans for improvements to be made to the Premises
which will be submitted to the Landlord for approval and after said approval, be submitted for approval
to the City of Sebastian. The Outdoor Seating Area shall not be included as additional square footage
in the Lease and shall not be the source of additional rent.
3.02 Term. The Term shall mean the Initial Term (as set forth in Section 1.01(f) herein) and
any Renewal Term (as defined below). The Tenant shall notify the Landlord ninety (90) days prior to
the termination date of the Lease of their decision to either exercise the first renewal option or end the
lease upon the original termination date (whether it be the Initial Term or a Renewal Term). The
Tenant shall notify the Landlord ninety (90) days prior to the termination date of the first option of
their decision to either exercise the second renewal option or end the lease upon the first option
termination date
3.03 Original Termination Date. The Original Termination Date shall be ten (10) years from
the Rent Commencement Date.
3.04 Term Extension Options. Provided that Tenant is not in default hereunder beyond any
applicable notice and cure period at the time of exercise, that Tenant has not been in default hereunder
beyond any applicable notice and cure period during the preceding twenty-four (24) months and that
the original Tenant hereunder has not assigned this Lease or sublet the Leased Premises (except as
permitted herein), Tenant shall have and is hereby granted two (2) separate and consecutive options
to extend the Term upon the terms, covenants, conditions and provisions set forth herein for two (2)
consecutive five (5) year periods ("Renewal Term"); provided that at the time an option to renew is
exercised, the Term shall be in effect. Such Extension Option shall be exercisable by Tenant giving
written notice to Landlord of its intention to exercise the same at least ninety (90) days prior to the
expiration of the then current Term. Upon receipt by Landlord of such notice, provided that Tenant
shall then have the right to exercise such option, the Term shall be extended in accordance with the
provisions hereof, without the necessity of any further act or documentation by Landlord or Tenant.
In no event shall Tenant have any right or option to extend or renew the Term beyond ten (10) years
from the expiration date of the Initial Term. In the event Tenant fails to exercise any such option within
the timeframe and in the manner aforesaid (regardless of whether such failure shall be a result of
Tenant's not having the right to exercise such option), then this right and option shall terminate and be
null and void, and the Term shall terminate in accordance with the provisions set forth elsewhere
herein.
3.05 Memorandum of Lease. If requested by Landlord, Tenant agrees to execute a
Memorandum of Lease. Landlord shall prepare and may record the Memorandum, whereupon
Landlord shall pay all costs, fees, taxes and other expenses of executing, delivering and recording
the Memorandum. Tenant agrees not to record this Lease and in the event that Tenant records this
Lease or any memorandum thereof, such recordation shall be deemed an event of default hereunder.
3.06 Letter Agreement and Collateral Assignment of Lease. Landlord agrees Exhibit B,
Letter Agreement to Supplement the Five Guys Lease Agreement, and Exhibit C, Collateral
Assignment of Lease and the Consent thereto are incorporated herein and Landlord and Tenant
agree to sign documents in substantially the form attached hereto in connection with the execution
of this Lease.
SECTION 4
RENT
4.01 Minimum Monthly Rental. Tenant shall pay the Minimum Monthly Rental to Landlord
during the Term. Tenant shall pay to Landlord a pro rata portion of the Minimum Monthly Rental
for the partial month, if any, immediately following the Rent Commencement Date. The payment for
the fractional month, if any, and for the first (1 st) full month of the Term, shall be due and payable
on the Rent Commencement Date, and without, any right of notice, demand, deduction or setoff, the
subsequent installments of Minimum Monthly Rental shall be due and payable in advance on the
first (1 st) day of each month thereafter, commencing with the first (1 st) day of the first (1 st) full
month after the Rent Commencement Date.
(a) Rent Abatement. Tenant's Base Rent shall abate for One -Hundred and Eighty (180) days
following the Rent Commencement Date.
4.02 Utilities- Tenant shall be responsible for all utilities starting at the Lease Date, throughout the
term of the lease.
4.03 Pro Rata Share of Common Area Maintenance Expenses, Taxes and Insurance. Commencing
on the Rent Commencement Date, Tenant shall pay to Landlord throughout the Term, as additional
rent, for each Calendar Year, upon presentation by Landlord to Tenant of bills for: (a) Tenant's Pro
Rata Share of Common Area Maintenance Expenses (b) Tenant's Pro Rata Share of Taxes; and (c)
Tenant's Pro Rata Share of Insurance. Tenant's Pro Rata Share of Common Area Maintenance
Expenses, Taxes and Insurance is estimated to be 17.77%. Anything in this Lease to the contrary
notwithstanding, Tenant's Pro Rata Share of Common Area Maintenance Expenses, Taxes and
Insurance and any merchants' association fees shall not exceed $4.03 per square foot of the Leased
Premises during the first year of this Lease. Tenant, at its cost, shall be entitled to audit the Common
Area Maintenance Expenses. If the Common Area Maintenance Expenses expenses charged to
Tenant exceed the amount of the Common Area Maintenance Expenses entitled to be charged to
Tenant by Landlord by more than 5% for the first year, then Landlord shall reimburse Tenant for the
costs of the audit and for any amounts overpaid by Tenant.
4.04 Installments. Landlord may collect Tenant's Pro Rata Share of Common Area
Maintenance Expenses, Tenant's Pro Rata Share of Taxes and/or Tenant's Pro Rata Share of Insurance
(collectively, "Share") for any Calendar Year in monthly installments, in the following manner.
Landlord may, at any time prior to or during a Calendar Year, submit to Tenant Landlord's reasonable
estimate of the Share for such Calendar Year. Such estimate may be revised from time to time during
such Calendar Year. If Landlord shall submit to Tenant such estimate, Tenant shall pay the amount of
such estimate in equal monthly installments, in advance, on or before the first (1st) day of each
calendar month during such Calendar Year so that the full amount of such estimate shall have been
paid upon the expiration of such Calendar Year. If Landlord shall collect monthly estimated payments
on account of the Share for any Calendar Year monthly, pursuant to this Section, then, within one
hundred twenty (120) days following the expiration of such Calendar Year, Landlord shall furnish to
Tenant a written statement showing the actual amount of the Share for such Calendar Year and the
payments theretofore made by Tenant. If the payments made by Tenant shall exceed the Share, Tenant
shall be entitled to a credit against the next due payments of Tenant's Pro Rata Share of Common Area
Maintenance Expenses in the amount of such excess. If the Share shall exceed the payments made by
Tenant, Tenant shall pay to Landlord the deficiency within ten (10) days after Landlord shall submit
the aforesaid statement to Tenant.
4.05 Payment of Rentals. All Rent shall be paid by Tenant to Landlord in advance on the
first (1 St) day of each month during the Term at Landlord's Address for Payment, without any right
of notice, demand, deduction or setoff. In case of controversy, Tenant shall have the burden of
proving payment of the controverted item(s) of Rent.
4.06 Late Payments. If Tenant shall fail timely to pay to Landlord any installment of Rent
on the date on which such sum is due (regardless of the provisions of Section 15.01(a), below),
Tenant shall pay to Landlord either or both (at Landlord's option) of the following: (a) interest on
such late payment from the due date thereof to the date of receipt of payment by Landlord at a rate
per annum equal to the Effective Rate, and (b) a late charge of Five Cents ($.05) for each dollar so
overdue.
4.07 Security Deposit. The Security Deposit., if any, shall be collateral security for the
performance by Tenant of its obligations under this Lease. The Security Deposit shall be returned
to Tenant after the expiration of the Term, provided Tenant shall have timely performed all of
Tenant's obligations under this Lease. Landlord may use, apply or retain the whole or any part of
the Security Deposit to the extent required for the payment of any Rent as to which Tenant is in
default or on account of any sum which Landlord may expend by reason of Tenant's default. In the
event that Landlord shall apply all or any part of the Security Deposit on account of Tenant's default
under this Lease, Tenant shall replenish the Security Deposit within three (3) days of any request by
Landlord to do so. No interest shall be paid on the Security Deposit. In the event of a sale of the
Leased Premises, Landlord shall have the right to transfer the Security Deposit to the purchaser; and
Landlord shall thereupon be released from all liability for the return thereof, and Tenant agrees to
look solely to the purchaser for the return of the Security Deposit.
SECTION 5
USE OF PREMISES: OCCUPANCY
5.01 Use of the Leased Premises. The Leased Premises shall be used for a food service
establishment (restaurant) that serves primarily hamburgers, hot dogs, non-alcoholic beverages and
other menu items typical to a Five Guys restaurant, which cooks food for on and off premise
consumption, and for no other purpose. Tenant shall not serve alcoholic beverages of any type,
without Landlords's written permission. Tenant shall have the exclusive right to sell hamburgers,
cheeseburgers, french fries and other complimentary items, for on- and off -premises consumption at the
Shopping Center. Tenant's exclusive shall not pertain to tenants whose sale of such items constitutes ten
percent (10%) or less of their gross revenue. Full-service restaurants that take customers' orders at their
table and delivers food to their table are also exempt from Tenant's exclusive.
5.02 Hazardous Substances.
fa,) Compliance with Law. All operations and activity at the Leased Premises
shall be conducted by Tenant in compliance with all Environmental Statutes. Tenant shall maintain
all permits or approvals and shall timely submit all reports and other documents required by
Environmental Statutes. Tenant, at its sole cost and expense, shall be responsible for and shall
comply with all Environmental Statutes having jurisdiction over the Leased Premises and the
Center with respect to the presence or removal of Hazardous Substances that were installed by,
stored or brought on the Leased Premises or the Center by Tenant or its employees, subtenants,
assignees, contractors, agents or customers.
(i) This is to include but not limited to compliance with Section 303 of
the Indian River County Code for Grease Trap Interceptors. Section 303.22 of the Indian River
County Code requires a grease trap interceptor be maintained at least once every six (6) months
and cannot be altered unless determined by the environmental health director.
Information Transfer. Tenant shall provide to Landlord: (i) all applications and
other documents submitted to any governmental agency relating to Environmental Statutes; (ii) all
permits, licenses and approvals obtained under Environmental Statutes; and (iii) any
correspondence, notice of violation, or other document received by Tenant relating to
Environmental Statutes.
(c) Handling of Hazardous Substances. Tenant shall not cause or allow the use,
generation, handling or storage of Hazardous Substances in, on or under the Leased Premises. Should
any release of Hazardous Substances occur at the Leased Premises, the Tenant shall immediately take all
measures necessary to contain, remove and dispose of the Leased Premises all materials released or
contaminated by the release, and remedy and mitigate all threats to public health or the environment
relating to such release. When conducting any such measures and when using and handling Hazardous
Substances, the Tenant shall comply with Environmental Statutes
Tanks. Tenant shall obtain prior written approval of the Landlord for the Installation
of any storage tank, whether above or underground, at the Leased Premises, and will comply with all
applicable laws and regulations concerning its installation, operation and closure. Upon termination of
this Lease, Landlord shall have the option of requiring that Tenant, at Tenant's sole cost and expense,
perform tests relating to and/or remove any tank installed by Tenant and any associated contaminated
material.
"' General Compliance. The provisions of this Section 5.02 shall not be
construed as limiting in any respect the covenants and obligations of Tenant under Section 6.07
hereof.
(f Landlord's Entry for Inspection. Tenant agrees to permit Landlord and its
authorized representatives to enter, inspect and assess, the Leased Premises, at reasonable times, for
the purpose of determining Tenant's compliance with the provisions of this Section 5.02. Such
inspections and assessments may include obtaining samples and performing tests of soil, surface water,
groundwater or other media.
5.03 Continuous Occupancy. Tenant shall: (i) occupy the Leased Premises promptly upon the
Commencement of the Term; (ii) open for business to the public on or before the Rent Commencement
Date; and (iii) thereafter throughout the Term, continuously use the entire Leased Premises under the Trade
Name for the Authorized Use in an efficient, businesslike and reputable manner. Tenant shall conduct its
business in the Leased Premises throughout the Tenn at least during the Minimum Hours.
5.04 Additional Agreements. Throughout the Term, Tenant agrees:
(a) Not to use or operate any machinery or equipment that is harmful to the
Leased Premises.
(b) Except as otherwise permitted in the Letter Agreement to Supplement the Five
Guys Lease Agreement attached as Exhibit B, not to do or Permit, or suffer to be done or permitted,
any act or thing, or permit any noise, odor, sound, vibration or disturbance whereby, or in consequence
whereof, the rights of other occupants of space in the Center will be obstructed or interfere with, or
other tenants in the Center will in any other way be injured or annoyed.
(c) Not to install a satellite dish, antennae, or other object on any portion of the Center,
the building in which the Leased Premises is located, the Leased Premises, including, but not limited to,
the roof of the Leased Premises, or in or around the Center without the prior written approval from
the Landlord. Requests for any such installation should be made to Landlord in writing in
accordance with Section 20.01 hereof.
Ud,) Not to install, affix or permit the installation of, any public telephones,
newspaper machines, vending machines, signage, kiosks, outdoor selling areas (whether seasonal
or permanent) or any other obstruction on the exterior walls of the Leased Premises or placed on
the sidewalks in front of, or surrounding the Leased Premises or on any other portion of the Center.
U Not to use or permit to be used, any sign, banner or object for marketing
purposes (i.e. GRAND OPENING or SALE), whether temporary or permanently affixed without
Landlord's prior written consent which consent may be withheld in Landlord's sole discretion.
Tenant shall pay and be solely responsible for any fine, charge, expense, liability or claim in
connection with any violation of this Section 5.04(e).
5.05 Tenant's Exclusive Use. Except as otherwise specifically set forth in this Section 5.05,
from and after the date of this Lease and for so long as Tenant is not in default under this Lease,
10
Landlord shall not enter into any Lease for any space at the Center which permits the primary use
of the premises leased therein for a Restaurant that serves the same type of food as the Tenant.
SECTION 6
LANDLORD'S WORK AND TENANT'S WORK, MAINTENANCE, REPAIRS AND
ALTERATIONS
6.01 Landlord's Work. Landlord will deliver Premises in As -is condition. Landlord shall be
responsible for any repairs initially required for the HVAC system to be in good working order (the
"Landlord's Work"). Landlord shall have the exclusive right to determine the structural, mechanical
and other standard details and specifications of Landlord's Work, including but not limited to, the type
of materials and the manufacturer and supplier thereof. Landlord's obligation to perform the Landlord's
Work is conditioned upon receipt of all necessary permits and approvals therefor.
6.02 Tenant's Work. Tenant shall perform all work not specifically designated as Landlord's
Work which is necessary to complete the Demised Premises in accordance with Tenant's Final Plans,
in the manner set forth in this Lease, and which is necessary for the Demised Premises to be ready to
open for business with the public by the Rent Commencement Date, and all such work shall be done
by Tenant at Tenant's own cost and expense. All such work as well as any remodeling pursuant to
Section 6.05 of this Lease and all other work, which is not specifically designated as Landlord's Work
is herein collectively referred to as "Tenant's Work."
6.03 Construction Procedures. The Leased Premises shall be designed and installed in accordance
with all requirements of all Laws, Landlord's fire insurance underwriter and the requirements of any
Governmental Authorities having jurisdiction thereof. The design, character and materials of the storefront
and all aspects of the design and construction of the interior of the Leased Premises shall be subject to the
approval of Landlord.
fa,) Construction Schedule. Tenant shall initially construct the Leased Premises
in accordance with the plans and specifications referred to below, such work to be completed by the
Rent Commencement Date. Not later than thirty (30) days after the Lease Date, Tenant shall deliver
to Landlord detailed plans and specifications of Tenant's Work (which shall include complete
storefront and interior work design plans, building signage plans, a reflective ceiling plan, a fixture
and merchandising layout plan, cooling and heating load calculations, electrical panel board
schedules and loads and such other details as may be required by Landlord) prepared by Tenant's
licensed architect. Landlord shall review such plans and specifications and advise Tenant of any
changes required by Landlord within twenty (20) business days of Landlord's receipt of the plans and
specifications. Tenant shall promptly revise such plans and specifications to incorporate Landlord's
required changes and deliver revised plans to Landlord within twenty (20) days after being advised
of Landlord's changes. Landlord may, within twenty (20) business days of Landlord's receipt of the
revised plans and specifications, require further changes to such plans and Tenant shall similarly
revise and resubmit the same to Landlord within an additional period of twenty (20) days, and this
procedure shall continue until all of Tenant's plans and specifications have been approved by
Landlord. Tenant's plans and specifications as completely approved by Landlord shall be referred to
herein as "Tenant's Final Plans". Upon Tenant's receipt of any and all necessary permits and/or
approvals, Tenant shall promptly commence Tenant's Work in accordance with Tenant's Final Plans.
All of Tenant's Work shall be completed at Tenant's sole cost and expense. All such work shall be
promptly commenced and thereafter continued with due diligence to the end that it shall be fully
11
completed and the Leased Premises opened for business in accordance with the provisions of this
Lease. Tenant shall perform no work in the Leased Premises until such plans and specifications have
been approved by Landlord.
Lb.) Construction Procedures and Requirements. In performing Tenant's Work,
Tenant shall (or cause its contractor to) comply with the following requirements:
(i) In addition to, and not in lieu of the other policies of insurance required by
this Lease, at all times between the start and completion of Tenant's Work (such period is herein referred
to as "Tenant's Construction Period"), Tenant, at its own cost and expense, shall cause Tenant's contractor
to maintain in effect with a responsible insurance company, a policy of all risk builder's risk insurance in
the standard form for the State of Florida. Said insurance shall cover the full replacement value of all
work done and fixtures and equipment installed or to be installed at the Leased Premises by Tenant,
without coinsurance and with a deductible clause not to exceed Five Thousand Dollars ($5,000.00).
(ii) In addition to, and not in lieu of the other policies of insurance required by
this Lease, at all times during Tenant's Construction Period, Tenant, at its own cost and expense, shall
cause Tenant's contractor to maintain in effect with a responsible insurance company a policy of
comprehensive liability insurance or (at Landlord's option) commercial general liability insurance (on
an occurrence basis). Said insurance shall protect against claims for personal injury (including death)
and property damage. With limits not less than Five Million Dollars ($5,000,000.00) in respect of
personal injury (including bodily injury and death) and Two Million Dollars ($2,000,000.00) for
property damage.
(iii)At all times during Tenant's Construction Period, Tenant's contractors and
subcontractors shall maintain in effect worker's compensation insurance as required by the laws
of the State of Florida.
(iv) Repair and/or reconstruction of all or any portion of Tenant's Work
damaged or destroyed by any casualty occurring during Tenant's Construction Period shall be
commenced by Tenant as soon as possible after such casualty; provided that if all or any portion
of Landlord's Work is also damaged or destroyed by such casualty, Landlord shall notify Tenant
when repairs or reconstruction of Landlord's Work is substantially completed and, upon receipt of
such notice, Tenant shall promptly pursue such repair and/or reconstruction to completion.
(v) Any approval or consent by Landlord of any or all of Tenant's criteria,
systems, plans, specifications or drawings shall neither constitute an assumption of responsibility
by Landlord for any aspect of such criteria, systems, plans, specifications or drawings including,
but not limited to, their accuracy or efficiency nor obligate Landlord in any manner with respect to
Tenant's Work and Tenant shall be solely responsible for any deficiency in design or construction
of all portions of Tenant's Work.
(vi) Subject to the terms of this Lease, Tenant shall obtain and pay for all
necessary permits and shall pay all other fees required by public authorities or utility companies with
respect to Tenant's Work.
(vii) Tenant shall maintain the Leased Premises and the Common Areas
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(as defined in the Lease) adjoining the same, to the extent used by Tenant, in a clean and orderly
condition during construction and may not use any space within the Center (except the Leased
Premises) for storage of material or equipment.
(viii) At any time and from time to time during the performance of
Tenant's Work, Landlord, Landlord's agent, Landlord's architect and/or Landlord's general contractor
may enter upon the Leased Premises and inspect the work being performed by Tenant and after ten
(10) days' notice to Tenant (except in the case of emergency) take such steps as are required by
Tenant's approved plans or by Laws to assure the proper performance by Tenant of Tenant's Work
in accordance with the approved plans and/or to protect the building and/or any leased premises
adjacent to the Leased Premises. In addition, Tenant's Work shall be performed in a thorough first-
class and workmanlike manner, shall incorporate only new or like new materials as approved by
Landlord on Tenant's plans and specifications as approved by Landlord, and new materials or like -
new materials at any other time during the Term and shall be in good and usable condition at the date
of completion.
(ix) Tenant's Work shall be coordinated with all work being performed or to be
performed by Landlord and other occupants of the Center such that Tenant's Work will not
interfere with the operation of the Center or interfere with or delay the completion of any other
construction within the Center.
(c) Construction Information. Prior to opening the Leased Premises for business
with the public, Tenant shall supply to Landlord the following:
(i) Properly issued permanent occupancy certificates, occupational
licenses and any other certificates evidencing acceptance or approval of the Leased Premises by
appropriate governmental authorities.
(ii) A set of as -built plans and specifications for Tenant's Work prepared
and sealed by Tenant's architect, together with names and addresses of Tenant's electrical, plumbing,
and other contractors.
(d) Construction Disputes. Any disagreement or dispute which arises between
Landlord and Tenant concerning Tenant's Work and which cannot be settled without the involvement of
a third party, the dispute shall be submitted to an independent architect, whose determination shall be
final and binding in resolving such dispute; provided, in the event Landlord and Tenant are unable to
agree upon the identity of such independent architect, then Landlord and Tenant shall each select one (1)
architect (with each party being responsible for the cost of the architect selected by such party) and the
two (2) selected architects shall select a third (architect and the decision of a majority of the architects
shall control and be final and binding on both Landlord and Tenant Landlord and Tenant shall each be
responsible for one-half ('/2) of the cost of said third (3'd) architect.
(e) Permit Contingency. Tenant will have the right to terminate the Lease if it is
unable to obtain all permits, variances and governmental approvals ("Permits") needed for the lawful
construction of its store built pursuant to Five Guys specifications and operation of its store within one
hundred twenty (120) days after the date Tenant's plans have been approved by Landlord. So long as Tenant
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is diligently endeavoring to obtain all Permits, Tenant shall not be required to exercise its termination right
until the applicable authority has made a final decision and all appeals of the decision have been exhausted.
Landlord will cooperate with Tenant and will execute any necessary applications for such Permits. Tenant
shall be required to submit plans for Landlord approval within 30 days after the Lease Date. Tenant shall
apply for permits within 30 days following Landlord's approval of Tenants plans.
6.04 Maintenance and Repairs. Tenant shall at its own expense, throughout the Term take good
care of the Leased Premises and keep it in good order, condition and repair and in compliance with all
Laws and Recorded Agreements, and promptly make all repairs necessary to maintain such good order,
condition, repair and compliance. Landlord shall at its own expense, throughout the Term take good care
of the the roof, exterior walls, Common Areas and structural foundations of the Center and keep it
in good order, condition and repair and in compliance with all Laws and Recorded Agreements, and
promptly make all repairs necessary to maintain such good order, condition, repair and compliance. The
term "repairs" shall include replacements, renewals and additions. All repairs made by Tenant shall be
equal to or exceed in quality and usefulness of the original building and such other original
improvements as may from time to time be located upon the Leased Premises. Tenant shall keep and
maintain the Leased Premises in a clean and orderly condition, and free of accumulations of dirt, rubbish,
snow, ice and water; and shall promptly remove from the Leased Premises and from the Center all trash,
which may accumulate in connection with any activity by Tenant. Tenant shall cause a reputable pest
control service to regularly service the Leased Premises so as to protect the Leased Premises from
infestations of pests, vermin, and rodents
6.05 Alteration and RemodelW . Tenant shall not, without first obtaining Landlord's prior written
consent, make any alterations, improvements or additions to the Leased Premises; except that Tenant
may, without the prior consent of Landlord, make minor non-structural interior alterations and
improvements to the interior of the Leased Premises up to five hundred dollars ($500) in cost; provided,
however, that any alteration, improvement or addition made by Tenant, including both those that do and
do not require Landlord's prior written consent, shall not affect or impair the structure of the building nor
reduce its value, and shall not disturb or annoy the occupants of any adjoining stores; and Tenant shall
give to Landlord at least thirty (30) days prior written notice of any such alteration, improvement or
addition. Except as otherwise provided in this Section 6.05, all alterations, improvements, additions,
repairs and other property attached to or used in connection with the Leased Premises or any part thereof
made or installed by Tenant shall immediately upon completion or installation thereof be and become
part of the Leased Premises and the property of Landlord without payment therefor by Landlord, and
shall be surrendered to Landlord upon the expiration or earlier terniination of the Tenn. Provided,
however, that Tenant agrees that all removable trade fixtures and personal property installed by Tenant
in the Leased Premises shall be removed by Tenant at the termination of the Term. Tenant agrees that it
will at its own cost and expense forthwith repair any and all damage done by the removal of any fixtures,
trade fixtures and personal property. Tenant shallobtain a permit for all improvements, alteration, or
additions to the Leased Premises that requires a permit even if under the five hundred dollar ($500)
amount and shall provide a copy of said permit to the Landlord. If the cost of the work exceeds
$100,000 but is less than $200,000, prior to the making of any alterations or changes or the
performance of any construction or work performed or authorized by Tenant which may give rise
to a mechanic's lien, Tenant shall provide to Landlord in form and substance acceptable to Landlord
a public construction bond, letter of credit or cash escrow deposit in the amount of the cost of the
work as assurance that payment for the same will be made by Tenant.
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6.06 Mechanic's Liens:
(a) Tenant hereby completely and fully indemnifies Landlord, and agrees to defend
(with counsel acceptable to Landlord) and hold Landlord harmless from and against, any
mechanic's lien or other lien or claim in connection therewith
(b) No liens shall be filed against the Leased Premises for any work performed as
the Landlord is a governmental entity.
(c) If the laws of the State of Florida provide a procedure for the limitation of the
right of any contractor, subcontractor or materialman to file a lien against the Leased Premises
for work performed, such as, but not limited to, the filing of the construction contract or
performance or payment bond, Tenant shall, prior to the making of any alterations, additions or
improvements to the Leased Premises, cause such procedure to be complied with.
6.07 Compliance. Tenant shall, throughout the Term, at Tenant's sole cost and expense,
promptly comply with all Laws and Recorded Agreements and the recommendations or
requirements of all insurance companies, relating to the Leased Premises, the use thereof the
sidewalks, parking areas, curbs and access ways adjoining the Leased Premises. Without limiting
the generality of the foregoing. Tenant shall keep in force all licenses, consents and permits
necessary for the lawful use and occupancy of the Leased Premises for the Authorized Use and
Tenant shall pay all personal property taxes, income taxes, license fees, and other impositions
which are or may be assessed, levied or imposed upon Tenant in connection with Tenant's use and
operation of its business at the Leased Premises.
SECTION 7
TAXES
7.01 Personal Property Taxes. Tenant shall pay all personal property and non -ad valorem
taxes levied by any Governmental Authority with respect to Tenant's property located on the
Leased Premises. Tenant shall pay all sales taxes levied by any Governmental Authority with
respect to the Leased Premises and/or Rent payable under this Lease, and hold the Landlord
harmless with respect thereto.
SECTION 8
Indemnity and Insurance
8.01 Indemnity and Release.
(a) Indemnification by Tenant. Tenant agrees to indemnify, defend (with counsel
acceptable to Landlord) and save harmless Landlord. from and against any and all claims by or on behalf
of any party arising from the occupancy, conduct, operation or management of the Leased Premises or
from any work or thing whatsoever done on or about the Leased Premises or the Center, or arising from
any breach or default on the part of Tenant pursuant to the terms of this Lease, or under the provisions
of any Law, or arising from any act, neglect or negligence of Tenant, or any of its agents, contractors,
servants, employees, or licensees, or arising from any accident, injury or damage whatsoever caused to
any party, occurring during the Term, in or about the Leased Premises or the Center or any part thereof,
and from and against all costs, expenses and liabilities incurred in connection with any such claim or
action or proceeding brought thereon (including, without limitation, the fees of attorneys, investigators
and experts); and in case any action or proceeding be brought against Landlord by reason of any such
15
claim, Tenant upon notice from Landlord covenants at Tenant's cost and expense to resist or defend such
action or proceeding or to cause it to be resisted or defended by an insurer. Tenant shall not, however, be
liable for damages or injury occasioned by the gross negligence or willful misconduct of Landlord, or its
agents, employees, or servants, unless such damage or injury arises from perils against which Tenant is
required by this Lease to insure.
02 Release. Landlord, its principals, agents, employees and contractors, shall not be
liable for, and Tenant hereby releases Landlord, its principals, agents, employees and contractors from,
all claims for loss of life, personal injury or damage to property or business sustained by Tenant or any
person claiming by, through or under Tenant resulting from any fire, accident, occurrence or condition
in or upon the Leased Premises or the Center or any part thereof including, but not limited to, any such
claims for loss of life, personal injury or damage resulting from defect, latent or otherwise, in the Leased
Premises or the Center, any defect in or any failure of any equipment, machinery, utilities, appliances,
or apparatus in the Leased Premises or the Center, falling of fixtures or other items, leakage of water,
snow or ice, broken glass, or any other similar event or any act of other tenants or occupants of the
Center or any act or omission (including negligent acts or omissions) of Landlord, its principals, agents,
servants and employees unless such claims are a result of Landlord's failure to fulfill its maintenance
obligations under Section 6.04, above.
fc) Waiver of Subro ag tion. Each of the parties hereto hereby releases the other and the
other's partners, agents and employees, to the extent of each party's insurance coverage, from any and
all liability for any loss or damage which may be inflicted upon the property of such releasing party
even if such loss or damage shall be brought about by the fault or negligence of the other party, its
partners, agents or employees; provided, however, that this release shall be effective only with respect
to loss or damage occurring during such time as the appropriate policy of insurance shall contain a
clause to the effect that this release shall not affect said policy or the right of the insured to recover
thereunder. If any policy does not permit such a waiver, and if the party to benefit therefrom requests
that such a waiver be obtained, the other party agrees to obtain an endorsement to its insurance policies
permitting such waiver of subrogation if it is available. If an additional premium is charged for such
waiver, the party benefiting therefrom, if it desires to have the waiver, agrees to pay to the other the
amount of such additional premium promptly upon being billed therefor.
8.02 Insurance by Tenant
(a) Tenant shall keep in force, at Tenant's sole cost and expense, with responsible
insurance companies acceptable to Landlord authorized to do business in the State of and throughout
the Term and during such other times as Tenant occupies the Leased Premises or any part thereof:
(i) Insurance (on an occurrence basis) against claims for personal injury
(including death) and property damage and with broad -form contractual liability coverage. under
a policy of comprehensive general liability insurance or (at Landlord's option) commercial general
liability insurance, with limits not less than Five Million Dollars ($5,000,000.00) in respect of
personal injury (including bodily injury and death) and Two Million Thousand Dollars
($2,000,000.00) for property damage.
(ii) Workers' compensation or similar insurance affording statutory
coverage and containing statutory limits.
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(iii) Fire insurance, with such extended coverage endorsements
including, but not limited to, vandalism, malicious mischief, sprinkler leakage, plate and other glass
coverage, and other endorsements as Landlord may from time -to -time require, covering all of Tenant's
stock in trade and other improvements to the extent of at least one hundred percent (100%) of their
replacement cost. The property damage insurance required hereunder shall not contain the "care,
custody and control" exclusion.
(iv) Business interruption insurance in an amount equal to one hundred
(100%) percent of the Rent and. if requested by Landlord, products liability insurance in such
amounts as Landlord may reasonably require.
(b) Tenant shall deposit with Landlord certificates of insurance evidencing the policies
of insurance required under this Section, as well as copies of such policies (if requested by Landlord),
together with satisfactory evidence of the payment of the premium or premiums required thereunder,
prior to the date Tenant first enters upon the Demised Premises (but in no event later than the
Commencement of the Term). Said policies of insurance shall name as insured parties the Landlord
(and, at Landlord's direction, any managing agent) and the holder of any Mortgage and shall provide
that they shall not be cancelable without thirty (30) days prior written notice to Landlord and the holder
of such Mortgage. At least fifteen (15) days prior to the expiration of any such policy, Tenant shall
deposit with Landlord certificates of insurance evidencing a renewal policy, as well as a copy of any
such renewal policy, together with satisfactory evidence of payment by Tenant of the premium or
premiums required thereunder. Should the Tenant default on an insurance payment, the insurance
company shall notify the Landlord upon said default. Should the Tenant fail to cure the default on the
insurance payment causing cancellation of the insurance coverage the default shall constitute a breach
of this lease and the Landlord at their sole discretion can terminate the Lease.
(c) The Landlord shall be listed as an additional insured on all policies of
insurance required by this lease.
8.03 Increase in Insurance Rate. Tenant will not do or keep anything in the Leased Premises
which will violate the provisions of any policy of insurance or which will prevent procuring
insurance with companies acceptable to Landlord. If anything done, omitted to be done or suffered
to be done by Tenant shall cause the • insurance rate on any insurance for the Center to be increased,
then Tenant shall pay the entire amount of any increase in premiums resulting therefrom on demand
and as additional rent.
SECTION 9
SIGNAGE
9.01 Signs. Tenant shall, at its sole cost and expense, construct all necessary signs in and
upon the Leased Premises properly to conduct its marketing activities, provided that Tenant
shall have first submitted to Landlord plans for each such sign and further provided that
Landlord shall have approved such; provided, however, the signage set forth as Exhibit D
attached hereto, is approved by Landlord. Tenant shall be solely responsible for obtaining sign
permits and for ensuring that all signs and the installation thereof conform to the requirements
of all Laws and Recorded Agreements. The availability of signs and sign permits is not a
condition to the obligations of Tenant under this Lease Tenant shall, at Tenant's sole cost and
expense, maintain its signs in good order, condition and repair throughout the Term. Tenant
shall pay to Landlord upon demand Tenant's Pro Rata Share of the cost of maintaining any:
17
pylon or monument sign at the Center. Tenant shall be permitted, at its sole cost and expense,
to install a sign in compliance with this Section 9.01 on such pylon or monument sign at a
location thereon to be determined by Landlord.
SECTION 10
UTILITIES
10.01 Tenant's Responsibility for Utilities Consumed. Tenant shall make application
for, be responsible for, and promptly pay all charges for all Utilities consumed at the Leased
Premises.
10.02 Utility Interruption. Landlord shall not be liable for any interruption or impairment
in the supply of Utility service, nor shall any interruption or impairment constitute a breach by
Landlord of the terms and conditions of this Lease nor shall any interruption or impairment
constitute a ground for an abatement of Rent. Tenant shall not at any time overburden or exceed
the capacity of any Utility services which are supplied to the Leased Premises.
10.03 Alternative Billing. If the authority or authorities supplying Utilities servicing the
Leased Premises provide that the bills therefor be rendered to Landlord, then Tenant shall
reimburse Landlord for the amount of each such bill upon request by Landlord.
10.04 HVAC. Tenant shall, at its own expense maintain a heat, ventilation and air condition
("HVAC'D maintenance contract with a third (31) party person or entity employed in the business
of servicing HVAC units of the type serving the Leased Premises and which is fully licensed to
repair such units in the State of Florida, which person or entity shall service the HVAC unit(s) at
the Leased Premises on a regular basis (not less than semi-annually), which service shall include,
but shall not be limited to, changing belts, filters and all other parts as required. Such person or
entity shall perform emergency repairs on the HVAC units(s) and keep a detailed record of all
services performed and prepare a yearly service report to be furnished to the Tenant at the end of
each Calendar Year. Tenant shall furnish to Landlord at the end of each Calendar Year a copy of
such yearly service report. A copy of the HVAC maintenance contract described above shall be
provided by Tenant to Landlord on or prior to the Commencement of the Term, together with proof
that the annual premium for such contract has been paid. Tenant shall notify Landlord in writing
of any person or entity contracted by Tenant to provide preventative maintenance or repairs to the
HVAC unit(s) serving the Leased Premises.
SECTION 11
ASSIGNMENT AND SUBLETTING
11.01 Assignment and Subletting
(a) Assignment and subletting to another entity will be subject to the exclusive use
clauses in place at that time. Tenant shall not transfer the Premises in whole or in part, or permit
occupancy of all or any part of the Premises by anyone other than Tenant (the foregoing are referred
to as "Transfer" or "Transfers") without first procuring the consent of the Landlord, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, Tenant shall not be required to
obtain Landlord's consent to assign this Lease to: (a) the parent of majority-owned subsidiary or
affiliate of Tenant; (b) a person or entity acquiring the assets of at least twenty-five (25) stores of
Tenant in a single transaction or (c) any entity resulting from a (i) merger (ii) consolidation, (iii)
initial public offering, or (iv) sale of substantially all of Tenant's assets, or (d) a franchisee of Tenant
18
or a franchisee of an affiliate of Tenant ("Franchisee") (each of the foregoing, a "Permitted
Assignment"). In the event of a Permitted Assignment, Tenant shall be released from obligations
throughout the Term of the Lease, and any renewal thereof. Any attempt to Transfer, without the
Landlord's consent in such Transfer where such consent is required, shall be void and confer no
rights upon any third person. All further language pertaining to this issue shall be discussed within
the formal lease negotiations.
(b) If, without Landlord's consent, Tenant assigns this Lease, or sublets all or any
portion of the Leased Premises, any profits derived by Tenant from the assignment or subletting
shall be paid by Tenant to Landlord and Tenant shall deliver to Landlord a written agreement in
which the assignee or subtenant agrees, for the benefit of Landlord, to assume, be bound by, and
perform all of the obligations of Tenant under this Lease.
(c) 11.02 Violation. If this Lease is assigned, Landlord may collect Rent from the
assignee. If the Leased Premises or any part thereof is sublet or occupied by any person other than
Tenant and in the event of Tenant's uncured default, Landlord may collect Rent from such subtenant or
occupant. Landlord's collection of Rent pursuant to the provisions of this Section 11.02 shall not in any
event be deemed to be a waiver of any default by Tenant in having assigned this Lease or sublet all or
any portion of the Leased Premises without the prior written consent of Landlord.
11.03 Bankruptcy Assignment. Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code, 11 U.S.C. 101 et.sea., shall be deemed without further act
or deed to have assumed all of the obligations arising under this Lease on or after the date of such
assignment. Any such assignee shall upon demand execute and deliver to Landlord an instrument
confirming such assumption.
11.04 Bankruptcy Assignment - Payment of Consideration for Assignment. If this Lease is
assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. et.sea.,
ninety percent (90%) of any and all monies or other considerations payable or otherwise to be delivered
in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any monies or other considerations constituting Landlord's
property under the preceding sentence not paid or delivered to Landlord shall be held in trust for the
benefit of Landlord and promptly be paid or delivered to Landlord.
SECTION 12
EASEMENTS. AND ESTOPPEL CERTIFICATES
12.01 Easements by Landlord. Landlord shall have the right to grant easements over the
Center without the joinder of Tenant so long as such easements do not adversely affect Tenant's
business or access to the Premises; and the rights of Tenant under this Lease shall be subject and
subordinate thereto.
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12.02 Tenant's Certificate: Additional Documents
(a) Tenant agrees at any time and from time to time, within ten (10) days after
Landlord's written notice, to execute, acknowledge and deliver to Landlord a written instrument in
recordable form certifying the commencement and ending dates of the Term, 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 and stating the modifications) and the dates to which Monthly Minimum Rental have
been paid in advance, if any, and stating whether or not Landlord is in default in the performance of any
agreement contained in this Lease and if so, specifying each such default and such other information as
Landlord shall reasonably request; and agreeing that Tenant will give to the holder (or proposed holder)
of any Mortgage a copy of any notice of default it sends to Landlord and will provide to such holder a
reasonable time in which to effect a cure of same. Tenant agrees that any such statement delivered
pursuant to this Section may be relied upon by any prospective purchaser of the fee or any mortgagee
thereof or any assignee of Landlord's interest in this Lease or of any Mortgage
(b) Within ten (10) days after the date of the execution of this Lease, and within ten
(10) days after the date of a request by Landlord to Tenant, Tenant shall deliver to Landlord (and
Tenant shall cause the Guarantor, if any, to deliver to Landlord), the following documents in
connection with Tenant and in connection with the Guarantor, if any:
(i) Financial statements for the three (3) fiscal annual periods most recently
ended prior to the date of the request, which financial statements shall; be prepared, audited and
certified to by Tenant's regularly engaged independent certified public accountants; be prepared in
accordance with generally accepted accounting principles consistently applied; and contain a
balance sheet of Tenant showing all assets and liabilities (both absolute and contingent) and a
statement of Tenant's profits and loss.
(ii) If applicable, a Good Standing Certificate issued by the appropriate
governmental authority confirming that Tenant and/or the Guarantor is and remains a corporation,
partnership or company (whichever, if any, are applicable) duly formed and in good standing under
the laws of the State of its incorporation and/or formation.
(iii) If applicable, a copy of an appropriate resolution of the board of directors of
Tenant and/or the Guarantor authorizing the proper officers to execute and deliver this Lease and the
Guaranty for and on behalf of Tenant and/or the Guarantor; and an incumbency certificate confirming
the duly authorized and elected officers and directors of Tenant and/or the Guarantor; both duly certified
as being true, complete and correct by the Secretary of Tenant and/or the Guarantor.
(iv) If applicable, a copy (certified as true and correct) of the partnership
agreement, by-laws and/or operating agreement of Tenant and/or the Guarantor reflecting the
authorization of the parties executing this Lease and/or the Guaranty to execute and deliver this
Lease and/or the Guaranty for and on behalf of Tenant and/or the Guarantor.
(c) At any time during the Term, Landlord may (by notice) furnish a statement to
Tenant which sets forth all payments made by Tenant to Landlord during the period specified in such
notice. Within twenty (20) days after receiving such statement, Tenant shall: (a) affirm such statement
in writing to Landlord; or (b) if Tenant disputes such statement, notify Landlord thereof and specify
in detail the basis of such dispute (including supplying reasonable written evidence in support thereof).
20
Such statement shall be conclusively binding upon Tenant if Tenant fails to timely affirm or dispute
such statement, or if Tenant's written evidence does not support its dispute.
SECTION 13
CONDEMNATION
13.01 Whole or Partial Taking. In the event the whole or any portion of the Leased
Premises shall be taken by any public authority under the power of eminent domain, this Lease
shall terminate as of the date of such taking.
13.02 Sharing of Condemnation Proceedings. All compensation awarded for such taking
of the fee and the leasehold shall belong to and be the property of the Landlord; provided, however, that
the Landlord shall not be entitled to any portion of the award attributable to the Leased Premises made to
the Tenant for the cost of moving or removal of its stock and fixtures (provided that such award to Tenant
does not reduce the compensation which would otherwise be awarded to Landlord).
SECTION 14
DAMAGE BY FIRE OR OTHER CASUALTY
14.01 Destruction of Leased Premises
(a) If the Leased Premises shall be damaged or destroyed by fire or other casualty, then
Tenant shall promptly give notice thereof to Landlord; and, except as hereinafter otherwise provided,
Landlord shall, to the extent that rent insurance is received by Landlord and to the extent permitted by
the holder of any Mortgage on the Leased Premises or the Center, within a reasonable time thereafter,
repair or restore the Leased Premises to substantially the same condition it was in prior to the casualty.
If Landlord is required to repair the Leased Premises pursuant to the provisions of this Section 14.01,
its obligations shall be limited to Landlord's Work, excluding, however, all work, alterations, fixtures,
or signs installed by or for Tenant and all floor coverings, furniture, equipment and decorations;
and Tenant shall, at Tenant's sole cost and expense, promptly perform all repairs and restoration to
the Leased Premises not required to be done by Landlord and shall promptly reenter the Leased
Premises and commence its business in all parts thereof upon its repair and restoration.
(b) If the damage to the Leased Premises should be so extensive as to render the whole
or any portion thereof untenantable and unsuitable for use and occupancy by Tenant, a just proportion of
the Minimum Monthly Rental, according to the nature and extent of the injury to the Leased Premises,
shall be suspended or abated until the Leased Premises shall be repaired or restored by Landlord as
aforesaid; provided, however, that the amount of such abatement or suspension shall in no event exceed
the amount of rent insurance paid to Landlord and the obligation of Tenant otherwise to perform under
this Lease shall not be affected or abated by reason of such damage or destruction.
(c) If during the last two (2) years of the Term the Leased Premises shall be damaged
or destroyed to the extent of twenty percent (20%) or more of its insurable value, or if the proceeds of
Landlord's insurance as the result of any damage to the Leased Premises by fire or other casualty shall be
insufficient fully to pay the cost of the repair thereto or if at any time the buildings in the Center shall be
damaged or destroyed as to the extent of fifty percent (50%) or more of their insurable value, then in any
such event, either Landlord or Tenant may terminate this Lease by notice to the other within thirty (30)
days after such damage or destruction. In the event of any terniination of this Lease pursuant to the
provisions of this Section, the termination shall become effective as of the date of the fire or other casualty,
a just proportion of the Minimum Monthly Rental, according to the nature and extent of the injury to the
21
Leased Premises shall be suspended or abated until the time of termination and Minimum Monthly Rental
shall be apportioned as of the date of the fire or other casualty.
SECTION 15
EVENTS OF DEFAULT
15.01 In the event any of the following shall occur:
(a) Tenant fails to pay any installment of Rent within five (5) days after notice of the
occurrence thereof from Landlord; or
(b) Tenant is in default of any of its other obligations or is otherwise in breach under this
Lease and Tenant fails to commence to cure any such default within fifteen (15) days after notice of the
occurrence thereof from Landlord and thereafter fails to complete the cure of such default with due
diligence within thirty (30) days after notice of the occurrence thereof from Landlord; or
(c) Tenant or Guarantor is adjudicated a bankrupt; or
(d) Tenant or Guarantor has a receiver in equity appointed for all or substantially
all of its property and such appointment is not vacated within thirty (30) days; or
(e) Tenant or Guarantor files a voluntary petition for reorganization or arrangement;
or
(f) Tenant or Guarantor has a trustee in reorganization appointed for its property; or
(g) Tenant or Guarantor files a voluntary petition in bankruptcy; or
(h) Tenant or Guarantor files an answer admitting bankruptcy or agreeing
to reorganization or arrangement; or
0) Tenant or Guarantor makes an assignment for the benefit of creditors; or
(k) Tenant permits its leasehold interest hereunder to be sold pursuant to execution;
then and in any such event. Landlord may, in addition to such other rights and remedies, which are
provided for by law or equity or elsewhere in this Lease:
(A) Accelerate the whole or any part of the Rent and other charges,
payments, costs and expenses herein agreed to be paid by Tenant for the entire unexpired balance
of the Term. Such amount if so accelerated shall, in addition to any Rent already due and payable,
be deemed due and payable as if, by the terms and provisions of this Lease, such accelerated Rent
and other charges, payments, costs and expenses were on that date payable in advance.
(B) If permissible under applicable laws, enter the Demised
Premises and without further demand or notice, proceed to sale of the goods, chattels and personal
property there found and levy the Rent; and Tenant shall pay all costs and officers' commissions,
including watchmen's wages and sums chargeable to Landlord, and in such case all costs, officers'
commissions and other charges shall immediately attach and become part of the claim of Landlord
for Rent.
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(C) Reenter the Leased Premises and remove all persons and all or any
property therefrom, either by summary dispossession proceedings or by any suitable action or
proceeding at law, or by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and repossess and enjoy the Leased Premises, together with all other installations
of Tenant. Upon recovering possession of the Leased Premises by reason of or based upon or arising
out of a default on the part of Tenant, Landlord may, at Landlord's option, either terminate this Lease
or make such alterations and repairs as may be necessary in order to re -let the Leased Premises; and
re -let the Leased Premises or any part or parts thereof, either in Landlord's name or otherwise, for a
term or terms which may at Landlord's option be less than or exceed the period which would
otherwise have constituted the balance of the Term and at such rent or rents and upon such other
terms and conditions as in Landlord's sole discretion may seem advisable and to such person or
persons as may in Landlord's discretion seem best; upon each such re -letting all rents received by
Landlord from such re -letting shall be applied: first, to the payment of any indebtedness other than
Rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of
such re -letting, including brokerage fees and attorneys' fees and all costs of such alterations and
repairs; third, to the payment of Rent due and unpaid hereunder; and the residue, if any, shall be held
by Landlord and applied in payment of future Rent as it may become due and payable hereunder. If
such rentals received from such re -letting during any month shall be less than that to be paid during
that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency
shall be calculated and paid monthly. No such reentry or taking possession of the Leased Premises
or the making of alterations and/or improvements thereto or the re -letting thereof shall be construed
as an election on the part of Landlord to terminate this Lease unless written notice of such intention
be given to Tenant. Tenant, for Tenant and Tenant's successors and assigns, hereby irrevocably
constitutes and appoints Landlord, as their agent to collect the rents due and to become due under all
subleases of the Leased Premises or any parts thereof without in any way affecting Tenant's
obligation to pay any unpaid balance of Rent due or to become due hereunder. Notwithstanding
any such re -letting without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach.
(D) To terminate this Lease and the Term hereby created without any
right on the part of Tenant to waive the forfeiture by payment of any sum due or by other performance
of any condition, term or covenant broken. Whereupon Landlord shall be entitled to recover, in addition
to any and all sums and damages for violation of Tenant's obligations hereunder in existence at the time
of such termination, damages for Tenant's default in an amount equal to the amount of the Rent reserved
for the balance of the Term, as well as all other charges, payments, costs and expenses herein agreed to
be paid by Tenant, all discounted at the rate of six percent (6%) per annum to their then present worth,
less the fair rental value of the Leased Premises for the remainder of said Term, also discounted at the
rate of six percent (6%) per annum to its then present worth, all of which amount shall be immediately
due and payable from Tenant to Landlord
(E) To proceed as a secured party under the provisions of the
Uniform Commercial Code against the property in which Landlord has been granted a security
interest pursuant to this Section 15.01.
(F) In the event of a breach or threatened breach by Tenant of any of
the covenants or provisions hereof Landlord shall have the right of injunction and the right to
23
invoke any remedy allowed at law or in equity as if reentry, summary proceedings and other
remedies were not herein provided for.
(G) No right or remedy herein conferred upon or reserved to Landlord
is intended to be exclusive of any other right or remedy herein or by law provided but each shall be
cumulative and in addition to every other right or remedy given herein or now or hereafter existing at
law or in equity or by statute.
(H) If permitted by applicable law, Tenant expressly waives:
1. The benefit of all laws, now or hereafter in force, exempting
any goods on the Leased Premises or elsewhere from levy or sale in any legal proceeding taken by
Landlord to enforce any rights under this Lease.
2. The right to delay execution on any real estate that may
be levied upon to collect any amount which may become due under the terms and conditions of
this Lease and any right to have the same appraised.
3. All of the following: (A) the requirement under Section
83.12 of the Florida Statutes that the plaintiff in his distress for rent action file a bond payable to the
Tenant in at least double the sum demanded by the plaintiff, it being understood that no bond shall be
required in any such action; (B) the right of Tenant under Section 83.14 of the Florida Statutes to
replevy distrained property; (C) the right of counterclaim in any action brought by Landlord against
Tenant for damages or for possession of the Leased Premises due to nonpayment of Rent; and (D) the
notice requirement set forth in Section 83.20 of the Florida Statutes.
(I) For the purpose of calculating the "accelerated Rent" payable
under paragraph (A) of this Section and the "Rent reserved for the balance of the Term" for the
purposes of paragraph (D) of this Lease (but without discounting as provided therein), the amount
payable as Tenant's Pro Rata Share of Taxes, Tenant's Pro Rata Share of Insurance and Tenant's
Pro Rata Share of Common Area Maintenance Expenses for the balance of the Term shall be equal
to the sum of the highest amount paid or payable by Tenant in any Calendar Year for each of the
foregoing items multiplied by the number of Calendar Years (including any fractional Calendar
Year) remaining in the Term.
O As security for the obligations of Tenant under this Lease,
Tenant does hereby assign, transfer and set over unto Landlord all of the rights, title and interest of
Tenant in and to any subleases of the Leased Premises. The assignment provided for in this paragraph
shall in no event be deemed: to constitute consent by Landlord to any sublease by Tenant nor an
agreement by Landlord to accept any subtenant as a tenant of Landlord in the event of a termination of
this Lease nor in any manner as a waiver by Landlord of the provisions and limitations herein; or to
constitute an agreement by Landlord to perform any of the obligations of Tenant under any sublease of
the Leased Premises. Until the occurrence of an event of default by Tenant under this Lease, Tenant may
continue to collect the rent and other sums payable under the sublease(s) assigned hereby; but from and
after the occurrence of an event of default, all such rent and other sums shall be paid to Landlord and
applied by Landlord on account of Rent and other sums due by Tenant to Landlord pursuant to this
24
Lease. A statement by Landlord to any subtenant that an event of default by Tenant has occurred under
this Lease shall be conclusive evidence of such fact and shall be (and may be) relied upon by the
subtenant in making payments to Landlord. No subtenant shall be liable to Tenant for any payment made
by the subtenant to Landlord pursuant to the paragraph. No sublease shall be valid or effective unless it
shall expressly restate therein the provisions of this paragraph.
(K) Tenant hereby grants to Landlord a security
interest under the Uniform Commercial Code in all of tenant's good and property about the Leased
Premises. Said Security interest shall secure unto Landlord the payment of all rent and charges
collectible or reserved hereunder which shall become due under the provisions of this Lease.
Tenant hereby agrees to execute, upon request of Landlord, such statements as may be required
under the provision of the said Uniform Commercial Code to perfect Landlord's security interest
in Tenant's goods and property about the Leased Premises. Notwithstanding the foregoing,
Landlord agrees to execute a reasonable waiver or subordination agreement from any leasing
company or lender who finances the purchase of any furniture and equipment Tenant uses at the
Premises.
(L) In the event of any default by Tenant of any of its obligations
under this Lease, Tenant shall immediately pay to Landlord, upon demand, an amount equal to all
reasonable attorneys' fees and court costs incurred by Landlord in enforcing its rights and remedies
under this Lease, whether or not an administrative and/or judicial action is commenced by Landlord
against Tenant by reason of such default.
15.02 Default by Landlord. Landlord shall not be in default of any of its obligations in
this Lease unless Landlord or the holder of any Mortgage on the Center shall have failed to
commence to perform such obligation within thirty (30) days after notice by Tenant to Landlord
and to such mortgagee properly specifying wherein Landlord has failed to perform any such
obligation or shall have failed to proceed thereafter with reasonable diligence to complete such
performance.
15.03 Curing Tenant's Defaults. If Tenant shall be in default of any of its obligations under
this Lease, Landlord may (but shall not be obligated to do so), in addition to any other rights it may
have in law or equity or under this Lease, cure such default on behalf of Tenant, and Tenant shall
reimburse Landlord upon demand for any reasonable sums paid or costs incurred by Landlord in
curing such default, together with interest at the Effective Rate from the respective dates of
Landlord's making of the payments and incurring of the costs, on all sums advanced by Landlord
as aforesaid, which sums and costs together with interest thereon shall be deemed additional rent
payable under this Lease.
15.04 Waiver of Breach. The waiver by Landlord or Tenant of any breach of any term,
covenant or conditions contained in this Lease, shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition contained in this Lease.
SECTION 16
INSPECTION RIGHTS
16.01 Landlord's Right to Inspect. Landlord and the holder of any Mortgage, and each of
their agents, shall have the right to enter the Leased Premises at all times to examine same and to
show them to prospective purchasers or tenants, and to make such repairs, alterations.
25
improvements or additions as Landlord may deem necessary or desirable. At any time within
nine(9) months prior to the expiration of the Term, Landlord shall have the right to display on the
exterior of the Demised Premises a customary "For Rent" sign.
SECTION 17
Quiet Enjoyment
17.01 Landlord's Covenant of Quiet Enjoyment. Landlord covenants that upon Tenant
complying with the terms, covenants and conditions of this Lease, Tenant may peaceably and
quietly have, hold and enjoy the Leased Premises for the Term without hindrance or interruption
by Landlord or by any other person or persons claiming under Landlord.
SECTION 18
Holding Over
18.01 Rent for Holding Over Period. If Tenant shall continue to occupy the Leased
Premises after the end of the Term without Landlord's written consent, then Landlord shall be
entitled to recover from Tenant either damages to compensate Landlord for the losses suffered by
Landlord as a result of such holding over or, at Landlord's option, compensation for such use and
occupancy, at a rate per month equal to one hundred fifty percent (150%) of the Rent in effect for
the month immediately preceding such expiration or earlier termination, on the terms and
conditions in effect immediately prior thereto. Neither Landlord's demand nor Landlord's receipt
of the aforesaid compensation for use and occupancy shall be deemed to provide Tenant with any
right to any use, occupancy or possession of the Leased Premises either for the period for which
such compensation has been demanded or paid or for any time before or after such period. The
provisions of this Section 18.01 shall not be deemed to limit or constitute a waiver of any other
rights or remedies of Landlord provided herein or at law.
SECTION 19
CONDITION AND RETURN OF PREMISES
19.01 Condition of Title and Leased Premises. Tenant agrees that the Leased Premises, the
Common Areas and all other parts of the Center, the title to the Leased Premises and the Center, the
zoning classification of the Leased Premises and the Center, and the uses of the Leased Premises
permitted by applicable Laws have been examined by Tenant; that Tenant accepts the Leased Premises
and the Common Areas in there "As -Is", "Where Is" state and condition; that Tenant accepts its rights
under this Lease subject to all of the foregoing; and that Landlord has made no representation,
covenant or warranty, express or implied, in fact or in law, with respect thereto.
19.02 Liability for Return of Leased Premises. At the expiration of the Term, Tenant shall
surrender the Leased Premises in the same or better condition as the Leased Premises were in upon
delivery of possession to the Tenant under this Lease, reasonable wear and tear and loss by
condemnation and insured casualty excepted.
SECTION 20
GENERAL
20.01 Notices. Any notice provided for in this Lease shall be given by written instrument,
personally delivered or sent by United States certified or registered mail, return receipt requested or
26
with a nationally recognized overnight carrier (such as Federal Express), each with postage and/or
delivery charges prepaid, to Landlord at Landlord's Address for Notices and to Tenant at Tenant's
Address (as set forth in Section 1.01 (d) above). All notices shall be deemed to have been given
when deposited in the United States mail or with such overnight carrier or when personally
delivered, as aforesaid any notice may be given on behalf of any party by its counsel.
20.02 Partial Invalidity. If any provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such provision to persons or circumstances other than those to which
it is held invalid or unenforceable, shall not be affected thereby and each provision of this Lease
shall be valid and enforced to the fullest extent permitted by law.
20.03 Entire Agreement. This Lease constitutes the entire agreement between the parties
with respect to the subject matter hereof and all prior negotiations are merged into this Lease. Any
amendment, change or addition to this Lease shall be made only in writing and signed by both
parties.
20.04 Successors in Interest. The terms and conditions of this Lease shall be binding upon,
and shall inure to the benefit of, the parties and their respective successors and assigns, subject
however to the provisions of Section 11.01.
20.05 Headings. The section headings in this Lease are for convenience of reference only,
and shall not be construed or held in any way to explain, modify, amplify or add to the
interpretation, construction or meaning of this Lease.
20.06 Applicable Law. This Lease shall be governed by the laws of the state of Florida.
20.07 Definition of Landlord. The word "Landlord" is used herein to include the Landlord
and any subsequent owner of the Leased Premises as well as their respective successors and assigns,
each of whom shall have the same rights, remedies, powers, authorities and privileges as it would
have had, had it originally signed this Lease as Landlord; but any Landlord, whether or not named
herein, shall have no liability under this Lease after it ceases to hold title to the Leased Premises,
except for obligations which may have theretofore accrued; or if it never acquires title to the Leased
Premises. If Landlord is in breach or default with respect to Landlord's obligations or otherwise under
this Lease, Tenant shall look solely to the interest of Landlord in the Center for satisfaction of
Tenant's remedies. Neither Landlord, nor any partner in Landlord, shall have any personal liability
with respect to any of the provisions of this Lease. Landlord's affiliated companies, officers, directors,
agents or employees shall not be liable to the Tenant for indirect, special, incidental, consequential,
punitive or reliance damages arising under or in connection with this Lease or the performance of
Landlord's obligations hereunder, or from any breach or partial breach of the provisions of this Lease
or arising out of any act or omission of employees, servants, agents or invitees of Landlord whether
based on breach of contract, breach of warranty, negligence or any other theory of liability. It is
expressly understood and agreed that Landlord's liability, and the liability of any partner in Landlord,
under the terms, covenants, conditions, warranties, and obligations of this Lease shall in no event
exceed the loss of Landlord's interest in the Center.
27
20.09 Brokers in Connection with Lease. Tenant represents and warrants to Landlord that
other than the Broker, if any, Tenant has had no dealings, negotiations or consultations with respect
to the Leased Premises or this transaction with any broker or finder, and that no broker or finder
called the Leased Premises to Tenant's attention for lease or took part in any dealings, negotiations
or consultations with respect to the Leased Premises or this Lease. Tenant agrees to indemnify,
defend and save the Landlord harmless from and against all costs, fees (including, without
limitation, reasonable attorney's fees and court costs), expenses, liabilities and claims incurred or
suffered as a result of breach of its representation and warranty set forth above.
20.11 No Partnership. Any intention to create a partnership or joint venture relationship
between Landlord and Tenant is hereby expressly disclaimed; and no relationship other than that
of Landlord and Tenant is intended between the parties hereto.
20.12 Effect of Statements Submitted by Landlord. Tenant's failure to object to any
statement, invoice or billing rendered by Landlord within a period of thirty (30) days after receipt
thereof shall constitute Tenant's acquiescence with respect thereto.
20.13 Documents and Instruments. In connection with a request by Tenant for Landlord to
review, prepare, execute, deliver, consent to and/or approve a document or instrument, Tenant shall
pay Landlord for Landlord's reasonable costs and expenses incurred therefor.
20.14 Counterparts. This Lease may be executed in one or more counterparts, all of which
shall be deemed to be an original.
20.15 Tenant's Signature. If Tenant consists of more than one (1) party, each such party's
liability shall be joint and several.
20.16 Time of the Essence. Time is of the essences of the Lease and all provisions hereof.
20.17 Force Majeure. In the event that Landlord or Tenant shall be delayed, hindered in or
prevented from the performance of any act required hereunder (other than the payment of money) by
reason of strikes, labor troubles, inability to procure materials, failure of power, riots, insurrection,
terrorist activity, weather conditions, the failure to act or default of the other party, by war or other
reason beyond its control, whether similar or dissimilar to any of the foregoing, then. The performance
of any such act shall be extended for a period equivalent to the period of such delay In the event that
Landlord or Tenant shall be delayed, hindered in or prevented from the performance of any act required
hereunder (other than the payment of money) by reason of strikes, labor troubles, inability to procure
materials, failure of power, riots, insurrection, terrorist activity, weather conditions, the failure to act or
default of the other party, by war or other reason beyond its control, whether similar or dissimilar to
any of the foregoing, then. The performance of any such act shall be extended for a period equivalent
to the period of such delay.
20.18 OFAC Compliance.
(a) Tenant represents and warrants that (i) Tenant and each person or entity owning an
interest in Tenant is (A) not currently identified on the Specially Designated Nationals and Blocked
Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury
28
"OFAC" and/or on any other similar list maintained by OFAC pursuant to any authorizing statute,
executive order or regulation (collectively, the "List" , and (B) not a person or entity with whom a
citizen of the United States is prohibited to engage in transactions by any trade embargo, economic
sanction, or other prohibition of United States law, regulation, or Executive Order of the President of
the United States, (ii) none of the funds or other assets of Tenant constitute property of, or are
beneficially owned, directly or indirectly, by any Embargoed Person (as hereinafter defined), (iii) no
Embargoed Person has any interest of any nature whatsoever in Tenant (whether directly or indirectly),
(iv) none of the funds of Tenant have been derived from any unlawful activity with the result that the
investment in Tenant is prohibited by law or that the Lease is in violation of law, and (v) Tenant has
implemented procedures, and will consistently apply those procedures, to ensure the foregoing
representations and warranties remain true and correct at all times. The term "Embargoed Person"
means any person, entity or government subject to trade restrictions under U.S. law, including but not
limited to, the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et sea., The Trading
with the Enemy Act, 50 U.S.C. App. 1 et sea., and any Executive Orders or regulations promulgated
thereunder with the result that the investment in Tenant is prohibited by law or Tenant is in violation
of law.
(b) Tenant covenants and agrees (i) to comply with all requirements of law relating to
money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect, (ii)
to immediately notify Landlord in writing if any of the representations, warranties or covenants set forth
has a reasonable basis to believe that they may no longer be true or have been breached, (iii) not to use
funds from any "Prohibited Person" (as such term is defined in the September 24, 2001 Executive Order
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism) to make any payment due to Landlord under the Lease and (iv) at the request of
Landlord, to provide such information as may be requested by Landlord to determine Tenant's
compliance with the terms hereof.
(c) Tenant hereby acknowledges and agrees that Tenant's inclusion on the List at any
time during the Lease Term shall be a material default of the Lease. Notwithstanding anything herein
to the contrary, Tenant shall not permit the Leased Premises or any portion thereof to be used or
occupied by any person or entity on the List or by any Embargoed Person (on a permanent, temporary
or transient basis), and any such use or occupancy of the Premises by any such person or entity shall
be a material default of the Lease. Tenant hereby acknowledges and agrees that Tenant's inclusion on
the List at any time during the Lease Term shall be a material default of the Lease. Notwithstanding
anything herein to the contrary, Tenant shall not permit the Leased Premises or any portion thereof to
be used or occupied by any person or entity on the List or by any Embargoed Person (on a permanent,
temporary or transient basis), and any such use or occupancy of the Premises by any such person or
entity shall be a material default of the Lease.
20.19 Waiver of Certain Landlord Lien Rights. Tenant shall have the right to finance and to
secure under the Uniform Commercial Code or otherwise, inventory trade fixtures. :furnishings,
furniture, equipment, machinery, and other personal property located at the Leased Premises which is
not owned or leased by Landlord. Landlord hereby waives any and all statutory and common law lien
rights which Landlord may have relating to Tenant's personal property and all rights of distraint against
such property. Landlord agrees to execute such written waiver and release of liens as Tenant may
reasonably require. Notwithstanding the foregoing, if Tenant fails to remove any such items at the
expiration or earlier termination of this Lease, such items shall become the property of Landlord.
29
20.20 DRAFTS NOT BINDING. THE SUBMISSION OF A DRAFT, OR MARKED UP
DRAFT, OF THIS LEASE BY ONE PARTY TO ANOTHER IS NOT INTENDED BY
EITHER PARTY TO BE AN OFFER TO ENTER INTO A LEGALLY BINDING LEASE
WITH RESPECT TO THE LEASED PREMISES. THE PARTIES SHALL BE LEGALLY
BOUND WITH RESPECT TO THIS LEASE ONLY IF AND WHEN EACH OF
LANDLORD AND TENANT HAS FULLY EXECUTED AND DELIVERED TO THE
OTHER A COUNTERPART OF THIS LEASE.
[Balance of Page is Intentionally Left Blank; Signatures Appear on Next Page]
30
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Agreement of
Lease as of the Effective Date.
BOARD OF COUNTY COMMISSIONERS
INDIAN RIVER COUNTY, FLORIDA
BY:
Josep arma , innan
BCC Approved: February 7, 2023
Attest: Jeffrey R. Smith, Clerk of Court and
Comptroller
By:
�p Cle
TENANT
FLOW SMART FIVE SEBASTIAN, LLC
By:
Nicol4 1 . uzakulics
Authorized Representative
31
Approved as to form and legal sufficiency
0-
,K-pk
William K. De raal
Deputy County Attorney
Approved:
By
ae C. Zito
Interim County Administrator
FLOW SMART FAT -9E04
STIAN, LLC
By:
Sheri
Authorized Representative
FLOW SMART FIVX SEICIAN, LLC
EXHIBIT A
Sebastian Corners Retail Center, LLC
FIVE GUYS
BURGERS and FRIE5
Exhibit A: The Premises
u_ -e lgh*gy No. I
1� 1!11111ulilllIIIIL)
11 _j �. E
it I MW at.. C"ty oMMI WOMIN tis
t•.00 se R1 North County
�f Admeustradve CHFim
include:
__.. Tex Collector
• Clerk of Court
• Veteran ServKes
(� ( Property Appraiser
Mites
Vacant
(Former Las Palmas)
3.200 SF Available
Ro•• i in 17 ctu
EXHIBIT B
LETTER AGREEMENT TO SUPPLEMENT THE FIVE GUYS@ LEASE AGREEMENT
FIVE GUYS'
DATE
Attn:
(the "Tenant", "Lessee" or "Second Party" as further defined in the Lease)
Attn :
(the "Landlord", "Lessor" or "First Party" as further defined in the Lease)
RE: LETTER AGREEMENT TO SUPPLEMENT THE FIVE GUYS@ LEASE AGREEMENT
This letter (this 'Letter") supplements that
governing the FIVE GUYS@ restaurant located at
"Premises"). Notwithstanding any understanding
otherwise, the undersigned agree as follows:
certain "Lease Agreement" (the "Lease")
(the
to the contrary contained in the Lease or
Use of Premises: The Landlord acknowledges that the Premises will be used for the
operation of a FIVE GUYS@ restaurant, a fast casual restaurant chain primarily selling
hamburgers, all -beef hot dogs, fresh -cut french fries, milkshakes, and related
accompaniments for onsite and/or offsite consumer consumption.
• Signage: Subject to compliance with any applicable laws and governmental regulations, the
signage package attached as Appendix 1 to this Letter includes the interior and exterior signage
approved for use at the Premises by the Landlord.
Cooking Matters: The Tenant will take all necessary steps to ensure that smells caused by
preparation, cooking, and refuse of food shall not rise to the level of a legal nuisance to the
Landlord or any of the tenants or other occupiers of the adjoining property. The Tenant will
comply with all applicable laws in respect of the storage, preparation, and cooking of food on
the Premises. The Landlord acknowledges customary odors and smoke associated with the
operation of a FIVE GUYS@ restaurant and that the presence of such odors and smoke will not
constitute a breach of the Lease or a violation of any rules or regulations of the Landlord or
otherwise be deemed noxious or offensive.
Music: The Tenant will take all necessary steps to ensure that the music played on the
Premises shall not rise to the level of a legal nuisance to the Landlord or any of the tenants or
other occupiers of the adjoining property. The Tenant will comply with all applicable laws in
respect of the type and decibel level (volume) of the music played on the Premises. The Landlord
acknowledges customary in-store music associated with the operation of a FIVE GUYS°
restaurant and that the playing of such music on the Premises will not constitute a breach
of the Lease or a violation of any rules or regulations of the Landlord or otherwise be deemed
noxious or offensive.
Notices of Default: In furtherance of the provisions included in the Collateral Assignment of
Lease and the Consent to Collateral Assignment of Lease attached as Appendix 2 to this Letter
(together, the "Collateral Assignment Documents"), the Landlord agrees to email a copy
of any notice of default delivered to the Tenant using the following address:
leasing@fiveguys.com. The Collateral Assignment Documents are acknowledged and agreed
to by the undersigned for purposes of the FIVE GUYS° brand owner, Five Guys Franchisor,
LLC (the "Franchisor"), a third party beneficiary of this Letter. Further, the Collateral
Assignment Documents are hereby incorporated by reference and, notwithstanding
any understanding to the contrary, are fully enforceable.
Parties agree that the Lease, this Letter, and the documents referenced herein
constitute the entire, full and complete agreement between the Landlord and the Tenant
concerning the Premises and will supersede all prior related agreements. This Letter and any
disputes arising out of, or in connection with, this Letter will exclusively be subject to the relevant
provisions of the Lease governing such matters (including, without limitation, the governing law
and dispute resolution provisions of such Lease).
TENANT:
LANDLORD:
Acknowledged and Agreed:
By:
Name:
Title: Authorized Signatory for and on
behalf of:
EXHIBIT C
COLLATERAL ASSIGNMENT OF LEASE
FOR VALUE RECEIVED, the undersigned ("Assignor") assigns, transfers and sets over to FIVE
GUYS FRANCHISOR, LLC, a Delaware limited liability company (together with its affiliates, "Assignee"), all
of Assignor's right and title to and interest in that certain "Lease" governing the FIVE GUYS® located at
(the "Lease"). This assignment is for collateral
purposes only and, except as specified in this document, Assignee shall have no liability or obligation of any
kind whatsoever arising from or in connection with this assignment or the Lease unless and until (i) Assignee
takes possession of the premises, (ii) the Lease demises according to the terms of this document, and (iii)
Assignee expressly assumes Assignor's obligations under the Lease.
Assignor represents and warrants to Assignee that it has full power and authority to assign the Lease and
that Assignor has not previously assigned or transferred and is not otherwise obligated to assign or transfer any
of its interest in the Lease or the premises it demises.
Upon Assignor's default under the Lease or under the "Franchise Agreement" for the FIVE GUYS®
Restaurant located on the premises governed by the Lease (the "Franchise Agreement"), the Assignee has the
right to take possession of the premises the Lease demises and expel Assignor from the premises. In that event,
Assignor shall have no further rights, title to, or interest in the Lease but shall remain liable to Assignee for any
past due rental payments or other charges Assignee is required to pay Lessor to effectuate the assignment this
document contemplates.
Assignor agrees that it shall not suffer or permit any surrender, termination, amendment or modification
of the Lease without Assignee's prior written consent. Throughout the term of the Franchise Agreement,
Assignor agrees that it shall elect and exercise all options to extend the term of or renew the Lease not less than
thirty (30) days before the last day upon which the option must be exercised, unless Assignee agrees otherwise in
writing. In the event Assignor fails to elect to extend or renew the Lease as required, Assignor appoints Assignee
as its true and lawful attorney-in-fact with the authority to exercise the extension or renewal options of the Lease
in the name, place and stead of Assignor for the sole purpose of effecting such extension or renewal.
ASSIGNEE:
FIVE GUYS FRANCHISOR, LLC
By:
Name:
Title:
ASSIGNOR:
FLOW SMA
TIAN, LLC
Signatory
CONSENT TO COLLATERAL ASSIGNMENT AND AGREEMENT OF LESSOR
The undersigned Lessor under the Lease:
(a) Agrees to notify Assignee in writing of and upon Assignor's failure to cure any
default by Assignor under the Lease;
(b) Agrees that Assignee shall have the right, but not the obligation, to cure any default
by Assignor under the Lease within thirty (30) days after Assignee's receipt of notice of such
default;
(c) Consents to the attached Collateral Assignment and agrees that, in the event
Assignee (i) elects to take possession of the premises following a default by Assignor, and (ii)
confirms to Lessor in writing that it has assumed the Lease as tenant, Lessor shall fully recognize
Assignee as the tenant under the Lease so long as Assignee agrees to cure any then -existing default
by Assignor under the Lease within the thirty (30) day period noted in section (b) above; and
(d) Agrees that Assignee may further assign the Lease to, or enter into a sublease with,
a third -party person, firm or corporation who agrees to assume the tenant's obligations under the
Lease and is reasonably acceptable to Lessor (and upon such assignment, Assignee shall have no
further liability or obligation under the Lease as assignee, tenant or otherwise, other than to certify
that the additional assignee or sublessee operates the premises the Lease demises as a FIVE
GUYS® Restaurant).
Dated: April 13, 2023 LESSOR:
Indian River County, a political subdivision of the State of Florida
M
Name: William K. DeBraal, Esquire
Title:
FIVE GUYS' - Letter Agreement to Supplement Lease Agreement - Flow Smart Five Sebastian, LLC