Exhibit 10.2.3
CELEBRITY SQUARE
BROADWAY AT THE BEACH
Myrtle Beach, South Carolina
LEASE BETWEEN
XXXXXXXXX & XXXXXX COMPANY, INC.
And
NEWRIDERS, INC
d/b/a/ EASYRIDERS CAGE
ARTICLE I
Basic Lease Terms and Definitions
1.1 Basic Lease Terms
a. "Broadway at the Beach"
b. "Celebrity Square"
c. "Celebrity Square Area"
d. "Landlord's Building"
e. "Premises"
f. "Term"
g. "Commencement Date"
h. "Termination Date"
i. "Permitted Use"
j. "Annual Basic Rental
k. "Annual Common Area Maintenance Charges"
1. "Advance Rental"
m. "Annual Marketing and Advertising Fund Contribution"
n. (INTENTIONALLY DELETED)
o. (INTENTIONALLY DELETED)
p. "Tenant Notice Address"
q. "Tenant Trade Name"
r. "Retail Radius Restriction"
s. (INTENTIONALLY DELETED)
t. "Landlord's Floor Area"
u. "Tenant's Floor Area"
v. "Common Areas"
w. "Default Rate"
1.2 Additional Defined Terms
1.3 Attachments
ARTICLE II
Premises
2.1 Demise
ARTICLE III
Term
3.1 Term
3.2 Termination
3.3 Holding Over
ARTICLE IV
Use
4.1 Prompt Occupancy and Use
4.2 Storage and Office Areas
4.3 Tenant's Trade Name
4.4 Store Hours
ARTICLE V
Rental
5.1 Rentals Payable
5.2 Annual Basic Rental
5.3 Annual Percentage Rental
5.4 "Rental Year" Defined
5.5 "Gross Sales" Defined
5.6 Statements of Gross Sales
5.7 Tenant's Records
5.8 Payment of Rental
5.9 Advance Rental
ARTICLE VI
Taxes
6.1 Tenant to Pay Proportionate Share of Taxes
6.2 Payment of Proportionate Share of Taxes
6.3 "Tax Year" Defined
6.4 Taxes on Rental
ARTICLE VII
Improvements
7.1 Tenant's Improvements
7.2 Effect of Opening for Business
7.3 Mechanic's Liens
7.4 Tenant's Trade Fixtures
ARTICLE VIII
Operations
8.1 Operations by Tenant
8.2 Signs and Advertising
8.3 Painting and Displays by Tenant
8.4 Trash Removal
ARTICLE IV
Repairs and Alterations
9.1 Repairs to be Made by Landlord
9.2 Repairs to be Made by Tenant
9.3 Damage to Premises
9.4 Alterations by Tenant
9.5 Changes and Additions to Celebrity Square
9.6 Roof and Walls
ARTICLE X
Common Areas
10.1 Use of Common Areas
10.2 Management and Operation of Common Areas
10.3 Employee Parking Areas
10.4 Tenant to Share Expense of Common Areas
10.5 Landlord's Operating Costs
ARTICLE XI
Marketing and Advertising
11.1 Marketing and Advertising Fund
11.2 Tenant's Contribution to Marketing and Advertisin
11.3 (INTENTIONALLY DELETED)
11.4 "Promotion Year" Defined
11.5 (INTENTIONALLY DELETED)
ARTICLE XII
Utilities
12.1 Water, Electricity, Telephone, Sanitary Sewer and Air
12.2 Water and Sewer Charges
12.3 Fire Protection Sprinkler System
12.4 Discontinuances and Interruptions of Utility Services
12.5 Landlord's Right to Alter Utilities
ARTICLE XIII
Indemnity and Insurance
13.1 Indemnity by Tenant
13.2 Landlord Not Responsible for Acts of Others
13.3 Tenant's Insurance
13.4 Tenant's Contractor's Insurance
13.5 Policy Requirements
13.6 Increase in Insurance Premiums
13.7 Waiver of Right of Recovery
13.8 Tenant to Pay Proportionate Share of Insurance Costs
13.9 Tenant's Failure to Comply
13.10 (INTENTIONALLY DELETED)
ARTICLE XIV
Damage and Destruction
14.1 Landlord's Obligation to Repair and Reconstruct
14.2 Landlord's Option to Terminate Lease
14.3 Demolition of Landlord's Building
14.4 Insurance Proceeds
ARTICLE XV
Condemnation
15.1 Effect of Taking
15.2 Condemnation Awards
ARTICLE XVI
Assignments and Subletting
16.1 Landlord's Consent Required
16.2 Transfer of Corporate Shares
16.3 Acceptance of Rent from Transferee
ARTICLE XVII
Default
17.1 "Event of Default" Defined
17.2 Remedies
17.3 Damages
17.4 Assignment in Bankruptcy
ARTICLE XVIII
Subordination and Attornment
18.1 Subordination
18.2 Mortgagee's Unilateral Subordination
18.3 Attornment
ARTICLE XIX
Notices
19.1 Sending of Notices
19.2 Notice to Mortgagees
ARTICLE XX
Quiet Enjoyment
20.1 Warranty
ARTICLE XXI
Miscellaneous
21.1 Retail Restriction Limit
21.2 Estoppel Certificates
21.3 Inspections and Access by Landlord
21.4 Memorandum of Lease
21.5 Remedies Cumulative
21.6 Successors and Assigns
21.7 Compliance with Laws and Regulations
21.8 Captions and Headings
21.9 Joint and Several Liability
21.10 Broker's Commission
21.11 No Discrimination
21.12 No Joint Venture
21.13 No Option
21.14 No Modification
21.15 Severability
21.16 Third Party Beneficiary
21.17 Corporate Tenants
21.18 Applicable Law
21.19 Time of Essence
21.20 Performance of Landlord's Obligations by Mortgagee
21.21 Waiver of Jury Trial
21.22 Landlord's Option to Terminate Lease
21.23 Limitation on Right of Recovery Against Landlord
21.24 Force Majeure
21.25 Air Rights
21.26 Rules and Regulations
21.27 (INTENTIONALLY DELETED)
21.28 Hazardous Materials
21.29 Compliance with the Americans With Disabilities Act
21.30 No Inducements or Representations
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made as of the 24th day of January, 1997 by
and between XXXXXXXXX & XXXXXX COMPANY, INC., a South Carolina corporation
("Landlord") and NEW RIDERS, INC., a Nevada corporation, d/b/a EASYRIDER CAFE
("Tenant").
FOR AND IN CONSIDERATION of the mutual covenants and agreements herein
contained, the parties hereto do covenant and agree as follows.
ARTICLE I
Basic Lease Terms and Definitions
1.1 Basic Lease Terms
The terms set out and defined in this Section, whenever used in this Lease
with the first letter of each word capitalized, shall have only the meanings
set forth in this section, unless such meanings are expressly modified,
limited or expanded elsewhere in this Lease.
a. "Broadway at the Beach" is the registered trade name of a mixed use real
estate project being developed by Landlord. The project may include but may
not be limited to retail stores, restaurants, theaters, entertainment
facilities, night clubs, bars, amusements and any other uses deemed
appropriate by the Landlord. The Landlord may include any land it owns or
acquires in this development but makes no representation that any specific
land will be so included or that any specific use will be made of any area.
Tenant shall acquire no rights whatsoever to such name, shall not use it in
any manner without Landlord's written permission, and shall discontinue any
permitted use immediately upon Landlord's request.
b. "Celebrity Square": The Celebrity Square Area and any adjacent parcel
or parcels of land more particularly described in Schedule "B" and known as
"Broadway at the Beach Celebrity Square."
C. "Celebrity Square Area": That certain parcel of land owned or
controlled by Landlord situated in the City of Myrtle Beach, State of South
Carolina, more particularly described in Schedule "B", and upon the opening
for business with the public of any expansion of the Celebrity Square Area,
the term "Celebrity Square Area" shall include the property used for such
expansion. Such expansion shall include only those areas specifically
designated as a part of Broadway at the Beach Celebrity Square and shall not
include any adjacent development unless so designated by Landlord.
d. "Landlord's Building": The structure(s) owned by or to be constructed
by Landlord in the location shown on Schedule "A", as the same may be altered,
reduced, expanded or replaced from time to time. Schedule "A" is attached for
the purpose of graphically depicting the location of the Premises within
Landlord's Building, and the matters appearing thereon, other than the
location and configuration of the Premises, whether indicated graphically or
in writing do not confer on Tenant any rights of use, access, or continued
existence or any obligation of Landlord to continue to maintain such
structures, areas, or matters in the configuration shown or depicted.
Landlord's Building may in fact be multiple buildings.
e. "Premises": Tenant's portion of Landlord's Building shown on Schedule
"A" having a Floor Area of approximately 8,259 square feet of enclosed area
plus a patio area of approximately 700 square feet,
TENANT /s/ MP LANDLORD /s/ DPW
Said patio area more particularly shown on Schedule A-1 attached hereto. The
Premises shall also include the Outdoor Motorcycle Display Area (as
hereinafter defined).
f. "Term": The period of ten (10) years, as further defined in Section
3.1, extending from the commencement date through the termination date.
g. "Commencement Date": The commencement shall be the earlier of April 1,
1997 or the date Tenant opens for business.
h. "Termination Date": Midnight, March 31, 2007 or on such earlier date
as this Lease Agreement shall be terminated by either party as permitted
herein.
i. "Permitted Use": Tenant shall use the Premises under Tenant's Trade
Name (as hereinafter described) solely for the purpose of conducting the
Permitted Use as such term is hereinafter defined; and shall not use or permit
or suffer the use of the Premises for any other business or purpose. As used
herein, Permitted Use shall mean the operation of a restaurant/night club
known as the EasyRider Cafe similar in operation to other EasyRider Cafes. The
Permitted Use shall also include in conjunction with the operation of an
EasyRider Cafe (i) The sale of EasyRider Cafe apparel and merchandise which
displays the Easy Rider Cafe logo or name or other merchandise related to
Tenant's motorcycle/hot rod theme (ii) The display within the Premises of one
or more motorcycles and motorcycle accessories; (iii) The display within the
area designated as the outdoor motorcycle display area on Schedule A-1 (the
"Outdoor Motorcycle Displays") of not more than three (3) motorcycles; (iv)
The operation of licensed gaming machines and video machines; and (v) live
entertainment. Dancing and the implementation of cover charges, admission
fees, door charges or similar charges shall be permitted on the Premises so
long as Landlord does not reinstate The Celebrity Square admissions policy as
set forth on the Admissions Rider attached hereto as amended by the Landlord
from time to time. Landlord in its sole discretion reserves the right to
institute an admissions policy for Celebrity Square and to amend the terms of
said admissions policy from time to time. In the event Landlord reinstates an
admissions policy for Celebrity Square dancing and the charging of admission
fees, cover charges, door charges or similar charges shall no longer be
permitted on the Premises unless Tenant elects in writing to be subject to the
admissions policy for Celebrity Square. Notwithstanding, Tenant may request
Landlord's approval for Special Events as set forth in Section 3 of the
General Rider attached hereto and incorporated herein which consent will not
be unreasonably withheld.
j. "Annual Basic Rental": Tenant shall pay in advance on the first day of
each month beginning on the Commencement Date base rent in accordance with the
following schedule:
Commencement Date thru 3/31/98: $12,044.38 per month
4/1/98 thru 3/31/99: $13,248.21 per month
4/1/99 thru 3/31/00: $14,570.25 per month
4/1/00 thru 3/31/02: $17,481.55 per month
4/1/02 thru 3/31/07: $20,991.63 per month
k. "Annual Common Area Maintenance Fee": Tenant shall pay in
advance on the first day of each month beginning on the Commencement Date CAM
in accordance with the following schedule:
TENANT /s/ MP LANDLORD /s/ DPW
Commencement Date thru 12/31/97: $1,376.50 per month
1/1/98 thru 3/31/07: CAM shall be increased
annually in accordance
the Consumer Price In
(See Section 10.4)
l. "Advance Rental": The sum of $12,044.38. See Section 5.9.
m. "Annual Marketing and Advertising Fund Contribution": Tenant shall
pay in advance on the first day of each month beginning on the Commencement
Date the Annual Marketing and Advertising Contribution in accordance with the
following schedule:
Commencement Date thru 12/31/97: $1,376.50 per month
1/1/98 thru 3/31/07: The Annual Marketing Fund
and Advertising Fund
Contribution shall be
increased annually in
accordance with the
Consumer Price Index.
(See Section 11.2)
n. (INTENTIONALLY DELETED)
o. "Annual Percentage Rental": (See Section 5.3) From the Commencement
Date through March 31, 2002 a sum equal to 7.5% of the amount by which Gross
Sales exceeds the natural breakpoint and from April 1, 2002 through March 31,
2007 a sum equal to 6% of the amount by which Gross Sales exceeds the natural
breakpoint.
p. "Tenant Notice Address": 0000 X. Xxxxxxx, #000, Xxxxxx, XX 00000.
See Section 19.1.
q. "Tenant Trade Name": Easyrider Cafe. Tenant shall not change Tenant's
Trade Name of its business operated in the Premises without the written
consent of Landlord.
r. "Retail Radius Restriction": Within five (5) miles of the Celebrity
Square. See Section 21.1.
s. (INTENTIONALLY DELETED)
t. "Landlord's Floor Area": The aggregate amount of square feet of
leasable floor area in Landlord's Building, which, with respect to any such
floor area which has been leased to any rent-paying tenant, shall be
determined in accordance with the provisions of any lease applicable thereto
and which, with respect to any floor area not so leased, shall consist of all
such leasable floor area in Landlord's Building designed for the exclusive use
and occupancy of rent-paying tenants, which shall exclude Common Areas, kiosks
and temporary vendors, mezzanine areas and areas used for management and
promotion offices and storage.
u. "Tenant's Floor Area": That portion of Landlord's Floor Area
constituting the Premises which shall be measured (a) with respect to the
front and rear width thereof, from the exterior face of the adjacent exterior
or corridor wall, or, if none, to the center of the demising partition, and
(b) with respect to the depth thereof, from the exterior front face of the
Premises to the exterior face of the rear exterior wall, or corridor wall, or,
if neither, to the center of the rear demising partition;
TENANT /s/ MP LANDLORD /s/ DPW
and in no case shall there be any deduction for columns or other structural
elements within any tenant's premises.
v. "Common Areas": Those areas and facilities, if any, which may be
furnished by Landlord, now or hereafter, in or near the Celebrity Square for
the non-exclusive general common use of tenants, and other occupants of the
Celebrity Square, their officers, agents, employees and customers, including
(without limitation) all parking areas, access roads, employee parking areas,
truckways, driveways, loading docks and areas, delivery passages, package
pick-up stations, sidewalks, malls, roofs, and sprinklers in Common Areas,
courts, ramps, landscaped and planted areas, retaining walls, stairways,
escalators, elevators, bus stops, first aid stations, sewage treatment
facilities, if any, lighting facilities, comfort stations or rest rooms, civic
center, meeting rooms, ticketing facilities and other similar areas,
facilities or improvements.
w. "Default Rate": An annual rate of interest equal to the lesser of (i)
the maximum rate of interest for which Landlord may lawfully collect upon
default or the contract rate if otherwise not provided in the State in which
the Celebrity Square is situate, or (ii) eighteen percent (18%).
1.2 Additional Defined Terms
The following additional terms are defined in the places in this Lease noted
below:
TERM SECTION
---- --------
"Additional Rental" 5.1
"Casualty" 14.1
"Consumer Price Index" 11.2
"Event of Default 17.1
"Gross Sales" 5.5
"Landlord's Operating Costs" 10.5
"Laws and Regulations" 8.1
"Mortgage" 18.1
"Mortgagee" 18.1
"Ready for Occupancy" 7.2
"Rental" 5.1
"Rental Year" 5.4
"Special Event" General Rider
"Taxes" 6.1
"Tax Year" 6.3
1.3 Attachments
The following documents are attached hereto, and such documents, as well as
all drawings and documents prepared pursuant thereto, shall be deemed to be a
part hereof:
General Rider
Schedule "A" - Drawing of Celebrity Square Area including Landlord's
Building and Tenant's Premises.
Schedule "A-1" - Drawing denoting maximum patio perimeter limits.
Schedule "A-2" - Drawing denoting the motorcycle parking area.
Schedule "B" - Legal Description of Celebrity Square Area.
Schedule "C" - Landlord's and Tenant's construction obligations with respect
to the Premises.
TENANT /s/ MP LANDLORD /s/ DPW
Schedule "D" - Rules and Regulations.
Schedule "F" - Definition of "Adult".
Entertainment Rider.
Admissions Rider.
ARTICLE II
Premises
2.1 Demise
Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord, the
Premises. Notwithstanding anything to the contrary contained herein, if basic
construction is complete, the Premises have been inspected by Tenant who shall
be deemed to have accepted the same as existing as of the date Landlord
delivers the Premises to Tenant for completion of all work required of it,
subject to completion of Landlord's construction obligations, if any, provided
for in Schedule "C".
ARTICLE III
Term
3.1 Term
The term shall commence on the earlier to occur of (a) April 1, 1997, or (b)
Tenant's opening of its business in the Premises, and shall be for the number
of years set forth in Section 1.1.f., plus the part of a month, if any, from
the date of the commencement of the Term through the last day of the month
immediately prior to the first full calendar month in the Term, and end on the
Termination Date set out in Section 1.1.h.
The taking of possession of the Premises by Tenant shall be conclusive
evidence against Tenant that, except for the completion of items of Landlord's
work which are to be done pursuant to the Lease, (i) the Premises are suitable
for the purpose for which leased, (ii) the Premises and each and every part
and appurtenance thereof are in good and satisfactory condition. To the best
of Landlord's knowledge and belief, Landlord's Building was constructed in
accordance with all applicable laws, ordinances and building codes.
3.2 Termination
Unless terminated sooner as hereinafter provided, this Lease shall terminate
on the stated Termination Date or at the end of any extension or renewal
thereof, without the necessity of any notice from either Landlord or Tenant to
terminate the same. Tenant hereby agrees that if it fails to surrender the
Premises at the end of the Term, or any renewal thereof, or earlier
termination as provided in this Lease, Tenant will be liable to Landlord for
any and all damages which Landlord shall suffer by reason thereof, and Tenant
will indemnify Landlord against all claims and demands made by any succeeding
tenants against Landlord, founded upon delay by Landlord in delivering
possession of the Premises to such succeeding tenant caused by Tenant's
holding over.
3.3 Holding 0ver
If Tenant shall be in possession of the Premises after the Termination Date,
in the absence of any agreement extending the Term hereof, or Landlord's
demand to Tenant to sooner vacate the Premises, the tenancy under this Lease
shall become one from month to month terminable by either party on thirty (30)
days prior written notice, at a monthly rental equal to twice the sum of (i)
the monthly installment of Annual Basic Rental payable during the last month
of the Term and (ii) one twelfth (1/12th) of the average Annual Percentage
Rental payable hereunder for the last three (3) Rental Years, or with respect
to a term of less than three (3) years, each complete
TENANT /s/ MP LANDLORD/s/
Rental Year preceding termination. Tenant shall also pay all other charges
payable under the terms of the Lease, prorated for the period during which
Tenant remains in possession. Such tenancy shall also be subject to all other
conditions, provisions and obligations of this Lease. Tenant shall not
interpose any counterclaim or counterclaims in a summary proceeding or other
action based on holdover.
ARTICLE IV
Use
4.1 Prompt Occupancy and Use
Tenant shall occupy the Premises upon commencement of the Term and thereafter
will continuously use the Premises for the Permitted Use and for no other
purpose whatsoever.
4.2 Storage and Office Areas
Tenant shall use only such minor portions of the Premises for storage and
office purposes as are reasonably required therefor to operate a
restaurant/nightclub within the Celebrity Square. In no event can office and
storage exceed fifty percent (50%) of the space.
4.3 Tenant's Trade Name
Unless otherwise approved in writing by Landlord, Tenant shall conduct
business in the Premises only in Tenant's Trade Name.
4.4 Store Hours
Tenant shall cause its business to be conducted and operated in good faith and
in such manner as shall assure the transaction of a maximum volume of business
in and at the Premises. Unless other hours are designated or approved by
Landlord in writing, Tenant shall cause the Premises to be open at 11 a.m.,
local time, and shall remain open until such minimum time as Landlord may from
time to time prescribe for all tenants seven (7) days per week. Landlord shall
set closing hours based upon seasonal factors. The Celebrity Square shall be
closed for business on Thanksgiving Day and Christmas Day, but Landlord may
permit Tenants to be open on such holidays. Landlord, in its sole discretion,
shall have the right to reduce or eliminate operating Hours on any or all of
New Year's Day, Thanksgiving Eve and Christmas Eve. If Tenant shall fail to
operate during all such hours, in addition to constituting an Event of Default
hereunder, Tenant shall be required to pay, for each hour that Tenant shall
fail to be open, liquidated damages equal to the greater of Fifty and No/100
Dollars ($50.00) or ten percent (10%) of Tenant's average hourly Gross Sales
computed for the month immediately preceding the month in question. If Tenant
shall request Landlord's approval of the opening of the Premises for business
for periods exceeding those specified above and Landlord shall approve such
request, Tenant shall pay for any additional costs incurred by Landlord in
connection with Tenant's opening the Premises for business during such
additional hours, including but not limited to, any additional amounts of
Landlord's Operating Costs, additional costs of heating, ventilating and air-
conditioning the Common Areas and the Premises, and additional utilities
furnished to the Premises by Landlord.
ARTICLE V
Rental
5.1 Rentals Payable
Tenant covenants and agrees to pay to Landlord as rental ("Rental") for the
Premises, the following:
(a) the Annual Basic Rental specified in Section 1.1.j, commencing the
earlier of April 1, 1997 or the date Tenant opens for business; plus
TENANT /s/ MP LANDLORD /s/ DPW
(b) the Annual Percentage Rental specified in Section 1.1.o; plus:
(c) all additional sums, charges, or amounts of whatever nature to be
paid by Tenant to Landlord in accordance with the provisions of this Lease,
whether or not such sums, charges or amounts are referred to as additional
rental (collectively referred to as "Additional Rental");
provided, however, that the Annual Basic Rental shall be adjusted
proportionately (on a per diem basis) for any Rental Year of more or less than
twelve (12) calendar months.
5.2 Annual Basic Rental
Annual Basic Rental shall be payable without prior demand in equal monthly
installments in advance on the first day of each full calendar month during
the Term, the first such payment to include also any prorated Annual Basic
Rental for the period from the date of the commencement of the Term to the
first day of the first full calendar month in the Term.
5.3 Annual Percentage Rental
Until Tenant's Gross Sales exceed the natural break point, the natural break
point shall be monitored by Tenant on a monthly basis. If the cumulative
monthly sales exceed the natural break point, in addition to the payment of
Annual Basic Rental the Tenant shall begin paying Annual Percentage Rental on
a monthly basis the following month. Effective with the Rental Year following
the Rental Year that the Tenant pays Percentage Rental, the Tenant will be
billed an estimated Annual Percentage Rental equal to the previous Rental
Year's Annual Percentage Rental paid, payable in increments of one-twelfth
(1/12) on the first of each month. Fifteen (15) days after the close of each
Rental Year, the Tenant shall report its Gross Sales and pay any additional
Annual Percentage Rental due. If Tenant paid excess Annual Percentage Rental
during the preceding Rental Year, such excess amount shall be credited to
Annual Percentage Rental due in the then current Rental Year. At the end of
the Term including any extensions, the Landlord shall reimburse Tenant for any
over payment in the preceding Rental Year. If there is a partial Rental Year
(as hereinafter defined) at the beginning and end of the term, the natural
break point and Annual Percentage Rental shall be prorated for such periods.
5.4 "Rental Year" Defined
The first full Rental Year shall commence on the first day of January 1998 and
end on December 31, 1998; thereafter, each Rental Year shall be the successive
calendar years. Any portion of the Term prior to January 1, 1998, or remaining
at the end of the last full Rental Year shall constitute the first and final
Rental Year, respectively, and all Rental shall be apportioned therefor.
5.5 "Gross Sales" Defined
"Gross Sales" means the sum of the actual sales prices of all goods, wares and
merchandise sold, leased, licensed, or delivered, food and beverages sold, and
the actual charges for all services performed by Tenant or by any subtenant,
licensee or concessionaire in, at, from or arising out of the use of the
Premises, whether for wholesale, retail, cash, credit, or trade-ins or
otherwise, without reserve or deduction for inability or failure to collect.
Gross Sales shall not include the proceeds of sales from charity events, to
the extent that such proceeds are donated by Tenant to qualified Internal
Revenue Service approved charitable organizations within sixty (60) days of
the event.
5.6 Statements of Gross Sales
Tenant shall deliver to Landlord all South Carolina sales tax reports
simultaneous with filing with the South Carolina Tax Commission, which shall
serve as Tenant's Statement of Gross Sales for Landlord's purposes.
TENANT/s/ LANDLORD /s/ DPW
5.7 Tenant's Records
Tenant covenants and agrees that the business upon the Premises shall be
operated so that a duplicate sales slip, invoice or non-resettable cash
register receipt, serially numbered, or such other device for recording sales
as Landlord approves, shall be issued with each sale or transaction, whether
for cash, credit or exchange.
For the purpose of permitting verification by Landlord of any amounts due as
Rental, Tenant will keep and preserve for at least three (3) years, and during
the Term shall keep at the Premises, a general ledger, required receipts and
disbursement journals and such sales records and other supporting
documentation together with original or duplicate books and records which
shall disclose in detail all information required to permit Landlord to verify
Tenant's Gross Sales and which shall conform to and be in accordance with
generally accepted accounting principles. At any time or from time to time
after twenty-four (24) hours' advance notice to Tenant, Landlord or any
Mortgagee, their agents and accountants, shall have the right during business
hours to make any examination or audit of such books and records which
Landlord or such Mortgagee may desire. If such audit shall disclose a
liability in any Rental Year for Rental in excess of the Rental theretofore
paid by Tenant for such period, Tenant shall promptly pay such liability. In
addition, if such audit shall disclose that Tenant has either under-reported
Gross Sales by five percent (5%) or more during any Rental Year or that Tenant
has underpaid by three percent (3%) or more any Rental payable by Tenant the
amount of which is based on Gross Sales, then in such event, in addition to
being an Event of Default hereunder, Tenant shall promptly pay the cost of
audit and interest at the Default Rate on all additional Annual Percentage
Rental then payable, accounting from the date such additional Annual
Percentage Rental was due and payable. If such audit shall disclose that
Tenant's records, in Landlord's reasonable determination, are inadequate to
reflect accurately Tenant's Gross Sales, Landlord shall have the right to
retain a consultant to prepare and establish a proper recording system in
which Tenant can determine Gross Sales, using books and records in a form
prescribed by such consultant and Tenant shall pay to Landlord as Additional
Rental the costs, consultant's fees and any other charges relating thereto. In
the event such audit shall disclose that Tenant has under paid Annual
Percentage Rent by five percent (5%) or more, the Landlord shall have the
right to terminate this Lease by giving Tenant thirty (30) days notice.
5.8 Payment of Rental
Tenant shall pay all Rental when due and payable, without any setoff,
deduction or prior demand therefor whatsoever. If Tenant shall fail to pay any
Rental within seven (7) days after the same is due, Tenant shall be obligated
to pay a late payment charge equal to the greater of One Hundred and No/1 00
Dollars ($100.00) or five percent (5%) of any Rental payment not paid when due
to reimburse Landlord for its additional administrative costs, In addition,
any Rental which is not paid within seven (7) days after the same is due shall
bear interest at the Default Rate from the first day due until paid. Any
Additional Rental which shall become due shall be payable, unless otherwise
provided herein, with the next monthly installment of Annual Basic Rental.
Rental and statements required of Tenant shall be paid and delivered to
Landlord at its notice address set out in Section 19.1 or at such other place
as Landlord may, from time to time, designate in a notice to Tenant. Any
payment by Tenant or acceptance by Landlord of a check for a lesser amount
than shall be due from Tenant to Landlord shall be treated as a payment on
account. The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or
remedies which Landlord may have against Tenant.
5.9 Advance Rental
Landlord acknowledges receipt from Tenant of an amount equal to the Advance
Rental, the same to be held as security for the performance by Tenant of all
obligations imposed under this Lease which Tenant is required to perform. If
Tenant shall fail to perform such obligations, Landlord shall be entitled to
apply the
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Advance Rental, pro tanto, against any damages which it may sustain by reason
of Tenant's failure to perform such obligations, but such application shall
not preclude Landlord from recovering greater damages if the same can be
established. Otherwise, if Tenant shall faithfully perform all such
obligations, then the Advance Rental shall be applied, pro tanto, by Landlord
against the Rental last becoming due hereunder.
ARTICLE VI
Taxes
6.1 Tenant to Pay Proportionate Share of Taxes
Tenant shall pay in each Tax Year during the Term, as Additional Rental, a
proportionate share of all real estate taxes, ad valorem taxes and
assessments, general and special assessments, taxes on real estate rental
receipts, taxes on Landlord's gross receipts, or any other tax imposed upon or
levied against real estate or upon owners of real estate as such rather than
persons generally, including taxes imposed on leasehold improvements which are
assessed against Landlord, payable with respect to or allocable to the
Celebrity Square Area, including all land, Landlord's Building and all other
buildings and improvements situated thereon, together with the reasonable cost
(including fees of attorneys, consultants, and appraisers) of any negotiation,
contest or appeal pursued by Landlord in an effort to reduce any such tax,
assessment or charge, and all of Landlord's administrative costs in relation
to the foregoing, all the foregoing being collectively referred to herein as
"Taxes". Tenant's proportionate share of Taxes for any Tax Year shall be
computed by multiplying the amount of such Taxes by a fraction, the numerator
of which shall be Tenant's Floor Area and the denominator of which shall be
Landlord's Floor Area. For the Tax Year in which the Term commences or
terminates, the provisions of this Section shall apply, but Tenant's liability
for its proportionate share of any taxes for such year shall be subject to a
pro rata adjustment based upon the number of days of such Tax Year falling
within the Term.
6.2 Payment of Proportionate Share of Taxes
Tenant's proportionate share of Taxes shall be paid by Tenant in equal monthly
installments in such amounts as are estimated and billed for each Tax Year by
Landlord during the Term, each such installment being due on the first day of
each calendar month. If at any time during a Tax Year it shall appear that
Landlord has underestimated Tenant's proportionate share of Taxes, it may xxxx
Tenant for any deficiency which may have accrued during such Tax Year and
thereafter the monthly installment payable by Tenant shall also be adjusted.
Within one hundred twenty (120) days after Landlord's receipt of tax bills for
each Tax Year, or such reasonable (in Landlord's determination) time
thereafter, Landlord will notify Tenant of the amount of Taxes for the Tax
Year in question, and the amount of Tenant's proportionate share thereof. Any
overpayment or deficiency in Tenant's payment of its proportionate share of
Taxes for each Tax Year shall be adjusted between Landlord and Tenant, and
Landlord and Tenant hereby agree that Tenant shall pay Landlord or Landlord
shall credit to Tenant's account (or, if such adjustment is at the end of the
Term, pay Tenant), as the case may be, within thirty (30) days of the
aforesaid notification to Tenant, such amount necessary to effect such
adjustment. The failure of Landlord to provide such notification within the
time prescribed above shall not relieve Tenant of its obligations hereunder.
6.3 "Tax Year" Defined
The term "Tax Year" means each twelve (12) month period (deemed, for the
purpose of this Section, to have 365 days) established as the real estate tax
year by the taxing authorities having lawful jurisdiction over the Celebrity
Square Area.
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6.4 Taxes on Rental
In addition to Tenant's proportionate share of Taxes, Tenant shall pay to the
appropriate agency any and all sales, excise and other taxes (not including,
however, Landlord's income taxes) levied, imposed or assessed by the State in
which the Celebrity Square is situate or any political subdivision thereof or
other taxing authority upon any Rental payable hereunder. Tenant shall also be
solely responsible for and pay within the time provided by law all taxes
imposed on its inventory, furniture, trade fixtures, apparatus, leasehold
improvements (installed by or on behalf of Tenant), equipment and any other of
Tenant's personal or other property.
ARTICLE VII
Improvements
7. 1 Tenant's Improvements
(a) Within thirty (30) days after execution of this Lease, Tenant shall,
at its sole cost and expense, submit to Landlord its plans for improvements
to the Premises and, after approval thereof by Landlord, shall complete all
improvements and other work to be performed by it pursuant to such plans
and the manner set out in Schedule "C". Tenant will be permitted by Landlord
to enter the Premises in accordance with Schedule "C" for the purpose of
performing its obligations under Schedule "C" and for the purpose of
installing its fixtures and other equipment, provided (i) Tenant shall have
obtained Landlord's prior written approval of the plans and specifications for
such work; and (ii) Tenant shall have deposited with Landlord the policies or
certificates of insurance required in Section 13.5. Tenant's activities shall
be conducted so as not to unreasonably interfere with Landlord's construction
activities or the business of other tenants or their tenancies, Tenant shall
maintain the Premises in a clean and orderly condition during construction
and merchandising. All trash which may accumulate in connection with
Tenant's construction activities shall be removed daily from the Celebrity
Square Area by Tenant at its expense. During such period, Tenant shall
perform all duties and obligations imposed by this Lease, including, without
limitation, those provisions relating to insurance and indemnification, saving
and excepting only the obligation to pay Rental (other than any Additional
Rental arising out of failure of Tenant to perform its obligations under this
Lease), which obligation shall commence when the Term commences.
(b) (INTENTIONALLY DELETED)
7.2 Effect of Opening for Business
By opening for business, Tenant shall be deemed to have: (a) accepted the
Premises, (b) acknowledged that the Premises are "Ready for Occupancy"
hereunder, and (c) agreed that the obligations of Landlord under Schedule "C"
have been fully performed except for defects in Landlord's work of which
Tenant notifies Landlord in writing prior to Tenant's opening for business.
7.3 Mechanic's Liens
No work performed by Tenant pursuant to this Lease, whether in the nature of
erection, construction, alteration or repair, shall be deemed to be for the
immediate use and benefit of Landlord so that no mechanic's or other lien
shall be allowed against the estate of Landlord by reason of any consent given
by Landlord to Tenant to improve the Premises. Tenant shall pay promptly all
persons furnishing labor or materials with respect to any work performed by
Tenant or its contractor on or about the Premises. In the event any mechanic's
or other lien shall at any time be filed against the Premises by reason of
work, labor, services, or materials performed or furnished, or alleged to have
been performed or furnished, to Tenant or to anyone holding the Premises
through or under Tenant, Tenant shall forthwith cause the same to be
discharged of record or bonded to the satisfaction of Landlord, If
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Tenant shall fail to cause such lien forthwith to be so discharged or bonded
after being notified of the filing thereof, then, in addition to any other
right or remedy of Landlord, Landlord may bond or discharge the same by paying
the amount claimed to be due, and the amount so paid by Landlord including
reasonable attorney's fees incurred by Landlord either defending against such
lien or in procuring the discharge of such lien, together with interest
thereon at the Default Rate, shall be due and payable by Tenant to Landlord as
Additional Rental.
7.4 Tenant's Trade Fixtures
All trade fixtures and apparatus (as distinguished from leasehold
improvements) owned by Tenant and installed in the Premises by Tenant at its
expense shall remain the property of Tenant and shall be removable at any
time, including upon the expiration of the Term; provided Tenant shall not at
such time be in default of any terms or covenants of this Lease; and provided
further that Tenant shall repair any damage to the Premises caused by the
removal of said trade fixtures and apparatus. Tenant shall provide Landlord
with a list of the trade fixtures owned by Tenant and shall update such list
as needed from time to time.
ARTICLE VIII
Operations
8.1 Operations by Tenant
Tenant agrees that the Premises shall be used and occupied by Tenant only for
those uses permitted by Section 1.1.i of this Lease, and Tenant agrees to use
and maintain the Premises in compliance with all applicable laws, decrees,
ordinances, orders, rules and regulations of all governmental bodies (federal,
state, county and/or parish and municipal) (hereinafter collectively referred
to as "Laws and Regulations") from time to time in force which shall affect
(a) Tenant's use of the Premises, (b) the manner or conduct of Tenant's
business or operation of Tenant's installations, equipment or other property
therein, (c) any cause or condition created by or at the instance of Tenant,
and Tenant shall pay all the costs, expenses, fines, penalties and damages
which may be imposed upon Landlord by reason of or arising out of Tenant's
failure to fully and promptly comply with and observe such laws or which
Landlord may incur as a result of Tenant's breach of the above covenants.
Notwithstanding the aforesaid, the Tenant shall have no obligation to repair
the Premises on account of any defect in the construction of the Premises
which breaches any applicable codes, laws or regulations governing the
Premises applicable prior to the date of this Lease or the date Tenant
commenced to occupy the Premises, whichever date is earlier. Tenant shall give
prompt notice to Landlord of any notice Tenant receives of the violation of
any Laws and Regulations of any such governmental body with respect to the
Premises or the use or occupancy thereof. If Landlord shall be required under
this Lease or pursuant to Laws and Regulations to take measures to comply with
Laws and Regulations affecting the Premises, Landlord may, at Landlord's
option, elect to terminate this Lease by giving not less than thirty (30)
days' notice thereof to Tenant unless Tenant shall give evidence satisfactory
to Landlord within fifteen (15) days after the giving by Landlord of such
notice of termination, that Tenant has commenced steps reasonably calculated
to comply with Laws and Regulations at Tenant's sole cost and expense. Tenant
shall not, at any time, leave the Premises vacant, but shall, in good faith,
continuously throughout the Term of this Lease conduct and carry on the type
of business for which the Premises are leased.
Tenant agrees not to use or to allow or permit the Premises to be used for any
purpose prohibited by any Laws and Regulations and Tenant agrees not to commit
waste or suffer or permit waste to be committed or to allow or permit any
nuisance on or in the Premises. Tenant will not occupy or use nor permit any
portion of the Premises to be occupied or used for any business or purpose
that Landlord may deem disreputable in any manner. Tenant will continuously
conduct Tenant's business in and occupy the Premises, and will control
Tenant's agents, employees and invitees in such a manner so as not to create
any nuisance or interfere with, annoy or disturb any of the other tenants in
Landlord's Building or Landlord in Landlord's management of Landlord's
Building. Notwithstanding anything to the
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contrary contained herein, Tenant shall not use the Premises or allow or
permit the same to be used in any way or for any purpose that Landlord may
deem to be extra hazardous on account of the possibility of fire or other
casualty or which will increase the rate of fire or other casualty or which
will increase the rate of fire or other insurance for Landlord's Building or
the contents thereof, or which may render Landlord's Building uninsurable at
normal rates by responsible insurance carriers authorized to do business in
the State of South Carolina or which may render void or voidable any insurance
on Landlord's Building or the contents thereof. Tenant shall not violate, or
permit the violation of, any condition imposed by any insurance policy then
issued in respect of Landlord's Building and/or the Celebrity Square Area and
shall not do, or permit anything to be done, or keep or permit anything to be
kept in the Premises which would subject Landlord to any liability or
responsibility for any personal injury or death or property damage, or which
would result in the cancellation of, or limit the assertion of any defense by
the insured, in whole or claims under any policy of insurance in respect of
Landlord's Building, or the Celebrity Square Area. In the event that by reason
of Tenant's acts or conduct of business there shall be an increase in the rate
of insurance on Landlord's Building or the contents thereof, then Tenant
hereby agrees to pay such increase.
In regard to the use and occupancy of the Premises, Tenant will at its
expense: (a) keep the inside and outside of all glass in the doors and windows
of the Premises clean; (b) keep all exterior store surfaces of the Premises
clean; (c) replace promptly any cracked or broken glass of the Premises with
glass of like grade and quality; (d) maintain the Premises in a clean, orderly
and sanitary condition and free of insects, rodents, vermin and other pests,
including cleaning, repairing or replacing as needed all floor covering within
the public areas of the Premises; (e) keep any garbage, trash, rubbish or
other refuse in rat-proof containers within the interior of the Premises until
removed; (f) have such garbage, trash, rubbish and refuse removed on a daily
basis; (g) keep all mechanical apparatus free of vibration and noise which may
be transmitted beyond the Premises; (h) comply with all laws, ordinances,
rules and regulations of governmental authorities and all recommendations of
Landlord's fire insurance rating organization now or hereafter in effect; (i)
comply with and observe all rules and regulations established by Landlord from
time to time which apply generally to all nightclub tenants in the Celebrity
Square Area; (j) conduct its business in all respects in a dignified manner in
accordance with high standards of nightclub operation consistent with the
quality of operation of the Celebrity Square Area as determined by Landlord;
and (k) provide top quality live entertainment consistent with the terms of
the Entertainment Rider attached hereto.
In regard to the use and occupancy of the Premises and the Common Areas,
Tenant will not: (l) place or maintain any merchandise, trash, refuse or
other articles in any vestibule or entry of the Premises, on the footwalks or
corridors adjacent thereto or elsewhere on the exterior of the Premises so as
to obstruct any driveway, corridor, footwalk, parking area, mail or any other
Common Area; (m) use or permit the use of any objectionable advertising
medium, such as, without limitation, loudspeakers, phonographs, public address
systems, sound amplifiers, reception of radio or television broadcasts within
the Celebrity Square, which is in any manner audible or visible outside of the
Premises; (n) permit undue accumulations of or burn garbage, trash, rubbish or
other refuse within or without the Premises; (o) cause or permit objectionable
odors to emanate or to be dispelled from the Premises; (p) solicit business in
the parking area or any other Common Area; (q) distribute handbills or other
advertising matter to, in or upon any automobiles parked in the parking areas
or in any other Common Area; (r) permit the parking of vehicles so as to
interfere with the use of any driveway, corridor, footwalk, parking area, mall
or other Common Areas; (s) receive or ship articles of any kind outside the
designated loading areas for the Premises; (t) use the mall, corridor or any
other Common Area adjacent to the Premises for the sale or display of any
merchandise or for any other business, occupation or undertaking; (u) conduct
any auction, fire or bankruptcy sale; (v) use or permit the use of any portion
of the Premises for any unlawful purpose or for any activity of a type which
is not generally considered appropriate; or (w) place a load upon any floor
which exceeds the floor load which the floor was designed to carry.
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Tenant acknowledges that it is Landlord's intent that the Celebrity Square
Area be operated in a manner which is consistent with the highest standards of
decency and morals prevailing in the community which it serves. Toward that
end, Tenant agrees that it will not operate or allow to be operated any event,
entertainment or promotional activity considered to be "adult", lewd or
suggestive, as defined in Schedule "F" attached hereto. Without limiting the
generality of the foregoing, Tenant will not allow events, entertainment or
activities such as wet t-shirt contests, mud wrestling or other similar type
activity. Tenant's employees shall be dressed in attire considered to be in
good taste and not provocative or suggestive. Tenant acknowledges that
Landlord does not provide and has no responsibility for security within the
Premises. Security within the Premises is solely the responsibility of Tenant.
8.2 Signs and Advertising
Tenant will not place or suffer to be placed or maintained on the exterior of
the Premises or in any part of Landlord's Building any sign, advertising
matter or any other thing of any kind, and will not place or maintain any
decoration, letter or advertising matter on the glass of any window or door of
the Premises or interior sign visible from outside the Premises without first
obtaining Landlord's prior written approval. Tenant will, at its sole cost and
expense, maintain such sign, decoration, lettering, advertising matter or
other thing as may be permitted hereunder in good condition and repair at all
times. Under no circumstances shall Tenant be permitted to place hand-lettered
advertising on the exterior of the Premises or any glass of any window or door
of the Premises. Notwithstanding the aforesaid, Tenant may utilize a hand
lettered display board on the Premises which display board promotes daily food
and drink specials provided said display board is tasteful in appearance and
in accordance with the high quality of the operation of Celebrity Square.
8.3 Painting and Displays by Tenant
Tenant will not paint or decorate any part of the exterior of the Premises, or
any part of the interior visible from the exterior thereof, without first
obtaining Landlord's written approval.
8.4 Trash Removal
Tenant shall keep any garbage, trash, rubbish, or other refuse in rat-proof
containers within the interior of the Premises. The procedure to be followed
by Tenant in storing, disposing and removal of such refuse shall be in
accordance with rules and regulations prescribed from time to time by
Landlord.
ARTICLE IX
Repairs and Alterations
9.1 Repairs to be Made by Landlord
Landlord, at its expense, will make, or cause to be made structural repairs to
exterior walls, structural columns and structural floor which collectively
enclose the Premises (excluding, however, all doors, door frames, storefronts,
windows and glass); provided Tenant shall give Landlord notice of the
necessity for such repairs. Notwithstanding the foregoing, if the necessity
for such repairs shall have arisen from or shall have been caused by the
negligence or willful acts of Tenant, its agents, concessionaires, officers,
employees, licensees, invitees or contractors, to the extent such damage is
not covered by proceeds from hazard insurance actually maintained or required
to be maintained by Landlord hereunder, Landlord may make or cause the same to
be made, but shall not be obligated to do so, and Tenant agrees to pay to
Landlord promptly upon Landlord's demand, as Additional Rental, the cost of
such repairs, if made, with interest thereon at the Default Rate until paid.
In the event Landlord elects not to make such repairs caused by Tenant's
negligence, Landlord may require Tenant to make such repairs at Tenant's sole
cost and expense.
TENANT /s/ MP LANDLORD /s/ DPW
9.2 Repairs to be Made by Tenant
All repairs to the Premises or any installations, equipment or facilities
therein, other than those repairs required to be made by Landlord pursuant to
Section 9.1 or Section 14.1, shall be made by Tenant at its expense. Without
limiting the generality of the foregoing, Tenant will keep the interior of the
Premises, together with all electrical, plumbing, heating, ventilating, air-
conditioning, and other mechanical installations therein (other than items to
be repaired by Landlord pursuant to Section 9.1), in good order and repair and
will make all replacements from time to time required thereto at its expense;
and will surrender the Premises at the expiration of the Term or at such other
time as it may vacate the Premises in as good condition as when received,
excepting depreciation caused by ordinary wear and tear, damage by Casualty
(other than such damage by Casualty which is caused by the negligence of
Tenant, its agents, concessionaires, officers, employees, contractors,
licensees or invitees, and which is not wholly covered by Landlord's hazard
insurance policy), unavoidable accident or Act of God. Tenant will not
overload the electrical wiring serving the Premises or within the Premises,
and will install at its expense, subject to the provisions of Section 9.4, any
additional electrical wiring which may be required in connection with Tenant's
apparatus. Any damage or injury sustained by any person because of mechanical,
electrical, plumbing or any other equipment or installations, whose
maintenance and repair shall be the responsibility of Tenant shall be paid for
by Tenant, and Tenant shall indemnify and hold Landlord harmless from and
against all claims, actions, damages and liability in connection therewith,
including but not limited to attorney's and other professional fees, and any
other cost which Landlord might reasonably incur.
In the event the Premises (including the Premises' electrical, plumbing,
heating, ventilating, air conditioning and other mechanical installations) are
not properly maintained in a timely manner by Tenant, Landlord may provide
such maintenance and/or perform such repairs as it deems necessary and Tenant
agrees to pay to Landlord promptly upon Landlord's demand, as Additional
Rental, the cost thereof with interest thereon at the Default Rate until paid.
9.3 Damage to Premises
Tenant will repair promptly at its expense any damage to the Premises, except
those repairs required to be made by Landlord pursuant to Section 9.1 and
Section 14. 1, and, upon demand, shall reimburse Landlord as Additional Rental
for the cost of the repair of any damage elsewhere in the Celebrity Square,
caused by or arising from the installation or removal of property in or from
the Premises, regardless of fault or by whom such damage shall be caused
(unless caused by Landlord, its agents, employees or contractors). If Tenant
shall fail to commence such repairs within five (5) days after notice to do
so from Landlord, Landlord may make or cause the same to be made and Tenant
agrees to pay to Landlord promptly upon Landlord's demand, as Additional
Rental, the cost thereof with interest thereon at the Default Rate until paid.
9.4 Alterations by Tenant
Tenant will not make any alterations, renovations, improvements or other
installations in excess of $ 25,000,00 in, on or to the Premises or any part
thereof (including, without limitation, any alterations of the store front or
signs, structural alterations, or any cutting or drilling into any part of the
Premises or any securing of any fixture, apparatus, or equipment of any kind
to any part of the Premises) unless and until Tenant shall have caused plans
and specifications therefor to have been prepared, at Tenant's expense, by an
architect or other duly qualified person and shall have obtained Landlord's
approval thereof. If such approval is granted, Tenant shall cause the work
described in such plans and specifications to be performed, at its expense,
promptly, efficiently, competently and in a good and workmanlike manner by
duly qualified or licensed persons or entities using first grade materials,
without interference with or disruption to the operations of tenants or other
occupants of the Celebrity Square. All such work shall comply with all
applicable governmental codes, rules, regulations, and ordinances.
TENANT /s/ MP LANDLORD/s/
9.5 Changes and Additions to Celebrity Square
Landlord reserves the right at any time and from time to time (a) to make or
permit changes or revisions in its plan for the Celebrity Square or the
Celebrity Square Area including additions to, subtractions from,
rearrangements of, alterations of, modifications of or supplements to the
building areas, walkways, parking areas, driveways or other Common Areas, (b)
to construct other buildings or improvements in the Celebrity Square Area and
to make alterations thereof or additions thereto and to build additional
stories on any such building or buildings and to build adjoining same and (c)
to make or permit changes or revisions in the Celebrity Square or the
Celebrity Square Area, including additions thereto, and to convey portions of
the Celebrity Square Area, including additions thereto, and to convey portions
of the Celebrity Square Area to others for the purpose of constructing thereon
other buildings or improvements, including additions thereto and alterations
thereof. Notwithstanding anything contained in this Lease to the contrary,
Landlord shall not materially impair the visibility of the Premises nor
materially limit Tenant's access to the Premises or the motorcycle parking
area.
9.6 Roof and Walls
Landlord shall have the exclusive right to use all or any part of the roof of
the Premises for any purpose; to erect additional stories or other structure
over all or any part of the Premises; to erect in connection with the
construction thereof temporary scaffolds and other aids to construction on the
exterior of the Premises, provided that access to the Premises shall not be
denied; and to install, maintain, use, repair and replace within the Premises
pipes, ducts, conduits, wires and all other mechanical equipment serving other
parts of the Celebrity Square Area, the same to be in locations within the
Premises as will not unreasonably deny Tenant's use thereof. Landlord may make
any use it desires of the side or rear walls of the Premises, provided that
such use shall not encroach on the interior of the Premises, and provided such
encroachment does not materially impair the visibility of the storefront of
the Premises nor materially limit Tenant's access to the Premises or the
motorcycle parking area. Tenant agrees to give Landlord access to the Premises
for the purposes of this Section 9.6.
ARTICLE X
Common Areas
10.1 Use of Common Areas
Landlord grants to Tenant and its agents, employees and customers a non-
exclusive license to use the Common Areas in common with others during the
Term, subject to the exclusive control and management thereof at all times by
Landlord, the rights of the Landlord to designate up to 150 parking spaces for
the exclusive use of another tenant from time to time, and subject, further,
to the rights of Landlord set forth in Sections 9.5 and 10.2.
10.2 Management and Operation of Common Areas
Landlord will operate and maintain or will cause to be operated and maintained
the Common Areas in a manner deemed by Landlord to be reasonable and
appropriate and in the best interests of the Celebrity Square. Landlord will
have the right (i) to establish, modify and enforce reasonable rules and
regulations with respect to the Common Areas; (ii) to enter into, modify and
terminate easement and other agreements pertaining to the use and maintenance
of the parking areas and other Common Areas; (iii) Landlord reserves the right
for non-exclusive parking for special events so long as such use does not
materially adversely effect Tenant's business; (iv) to close all or any
portion of said parking areas or other Common Areas to such extent as may, in
the opinion of Landlord, be necessary to prevent a dedication thereof or the
accrual of any rights to any person or to the public therein; (v) to close
temporarily any or all portions of the Common Areas; (vi) to discourage non-
customer parking; (vii) to do and perform such other acts in and to said areas
and improvements as, in the exercise of good business judgment, Landlord shall
determine to be advisable.
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10.3 Employee Parking Areas
Notwithstanding any other provision of this Lease, Tenant and Tenant's
employees shall park their cars only in areas specifically designated for this
purpose by Landlord from time to time. Tenant further agrees that upon notice
from Landlord, Tenant will within five (5) days furnish to Landlord the
automobile license numbers assigned to Tenant's car and the cars of all of
Tenant's employees. In the event that Tenant or any of Tenant's employees fail
to park their cars in the designated parking areas, the Landlord may at its
option charge the Tenant, and Tenant agrees to pay Landlord as additional rent
the sum of Ten Dollars ($10.00) per day per car parked in any area other than
those designated for Tenant and employee Parking as distinguished from public
parking areas.
10.4 Tenant to Share Expense of Common Areas
In each Rental Year, Tenant will pay Landlord, as Additional Rental, the
Annual Common Area Maintenance Fee. The Annual Common Area Maintenance Fee
shall be paid by Tenant in monthly installments beginning on the Commencement
Date. The Annual Common Area Maintenance Fee shall be adjusted annually for
the Rental Year beginning January 1, 1998 and as of the first day of each
Rental Year thereafter, in the same proportion as the Consumer Price Index for
all Urban consumers published by the Bureau of Labor Statistics of the United
States Department of Labor.
10.5 The term "Landlord's Operating Costs" shall mean all costs and
expenses incurred by Landlord in operating and maintaining the Common Areas
pursuant to Section 10.2 including all costs and expenses of operating,
maintaining, repairing, lighting, signing, cleaning, painting, striping,
policing any security of the Common Areas. Landlord's Operating Costs shall
include, but not be limited to, cost of uniforms, equipment and employment
taxes; alarm, systems; insurance, including, without limitation, liability
insurance for personal injury, death and property damage, insurance against
fire, extended coverage, theft or other casualties, workmen's compensation
insurance covering personnel, fidelity bonds for personnel, insurance against
liability for assault and battery, defamation and claims of false arrest
occurring on and about the Common Areas, plate glass insurance for glass, if
any, exclusively serving the Common Areas; maintenance of sprinkler systems
serving the Common Areas; maintenance of sprinkler systems serving the
Celebrity Square Area; removal of snow, ice, trash and debris; regulation of
traffic including employee parking areas, tram systems and shuttles for
employees and visitors; surcharges levied upon or assessed against parking
spaces or areas, payments toward mass transit or car pooling facilities or
otherwise as required by Federal, State or local governmental authorities;
costs and expenses in connection with maintaining Federal, State or local
governmental ambient air and environmental standards; the cost of any capital
item purchased which reduces Landlord's Operating Costs (such cost to be
amortized over the useful life of the item plus interest at the Default Rate);
the cost of all materials, supplies and services purchased or hired therefor;.
operation of public toilets and other project amenities; installing and
renting of signs; fire protection; maintenance, repair and replacement of
utility systems serving the Common Areas, including, but not limited to,
water, sanitary sewer and storm water lines and other utility lines, pipes and
conduits; costs and expenses of maintenance and repair to the roofs and plate
glass, if any; costs and expenses of maintaining and operating sewage
treatment facilities, if any; costs and expenses of inspecting and
depreciation of machinery and equipment used in the operation, heating,
cooling, ventilating and maintenance of the Common Areas, if any and personal
property taxes and other charges incurred in connection with such equipment;
costs and expenses of repair or replacement of paving, curbs, walkways,
landscaping, drainage pipes, ducts, conduits and similar items, and lighting
facilities; costs and expenses of planting, replanting and replacing flowers,
shrubbery and planters; costs and expenses incurred in the rental of music
program services and loudspeaker systems, if any, including furnishing
electricity therefor; costs of providing light and power to the Common Areas;
costs of providing energy to heat, ventilate and air-condition areas in which
the Common Areas are located and the maintenance, repair and replacement of
such equipment; cost of water services, if any, furnished by Landlord for the
non-exclusive use of all tenants;
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parcel pick-up and delivery services; and administrative costs attributable to
the Common Areas for on-site personnel, including the General Manager,
Assistant General Manager, clerical, bookkeepers and other administrative
personnel, cost associated with the operation of Celebrity Square ticket
office or kiosk and management office including tickets, office equipment,
office supplies and accounting supplies, reasonable allocation of expenses of
off site personnel engaged in functions related to Landlord's Operating Costs
(including accounting or bookkeeping services), and an overhead cost equal to
five percent (5%) of the total Landlord's Operating Costs set forth above.
Such costs and expenses shall not include depreciation (other than
depreciation as above specified). Such costs shall not include salaries or
expenses of Landlord's supervisory personnel unless located in or for
Celebrity Square and devoting substantially full time to supervision of
operations of Celebrity Square, including administration of the ticket office
and sales therefrom. Notwithstanding the foregoing, such costs and expenses
shall not include matters separately reimbursed under any other provision of
this Lease.
ARTICLE XI
Marketing and Advertising
11.1 Marketing and Advertising Fund
Landlord will maintain a bank account, separate from all of its other bank
accounts, into which Landlord shall deposit the Annual Marketing and
Advertising Fund Contributions paid by Tenant pursuant to Section 11.2 as well
as similar contributions which Landlord may receive from time to time from
other tenants of the Celebrity Square Area (the aggregate of such funds on
hand from time to time being referred to herein as the "Marketing and
Advertising Fund"). The Marketing and Advertising Fund shall be used by
Landlord to pay all costs and expenses associated with the formulation and
carrying out of an ongoing program for the promotion of the Celebrity Square,
which program may include, without limitation, special events, shows,
displays, signs, marquees, decor, seasonal events, institutional advertising
for the Celebrity Square Area and other activities within the Celebrity Square
to attract customers; and to pay part of all costs and expenses when deemed
beneficial for advertising arranged by Landlord on Tenant's behalf when
Tenant's advertising is part of a Celebrity Square cooperative advertising
event and the same right is provided to all other tenants within the Center.
In addition, Landlord may use the Marketing and Advertising Fund to defray the
costs of administration of the Marketing and Advertising Fund, including
(without limitation) the salary of a promotion and advertising director and
related administrative personnel, rent and insurance. Landlord shall not be
responsible for the content of any advertising copy supplied by Tenant, and
Tenant shall indemnify, hold harmless and defend Landlord from and against any
actions, claims or demands of others arising out of the use of any such
advertising copy. Upon reasonable notice, Landlord shall make available for
Tenant's inspection, during normal business hours at Landlord's office,
Landlord's records relating to the contributions to and disbursements from the
Marketing and Advertising Fund. Tenant shall fully cooperate with Landlord and
the other tenants of the Celebrity Square in promoting the use of such trade
names and slogans as may be adopted for the Celebrity Square and in all
promotional and advertising campaigns.
11.2 Tenant's Contribution to Marketing and Advertising Fund
In each Promotion Year, Tenant shall pay to Landlord the Annual Marketing and
Advertising Fund Contribution. The Annual Marketing and Advertising Fund
Contribution shall be paid by Tenant in monthly installments, with each
installment being due on the first day of each month beginning on the
Commencement Date. The Annual Marketing and Advertising Fund Contribution
shall be adjusted annually as of the first day of each year beginning January
1, 1998 and each Promotion Year during the Term, in the same proportion as the
Consumer Price Index for all Urban Consumers (U.S. City Average) published by
the Bureau of Labor Statistics of the United States Department of Labor (the
"Consumer Price Index") most recently reported as of such adjustment date
bears to the Consumer Price Index reported for the first full calendar month
of the Term, all such adjustments to be apportioned for
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fractional years. The Annual Marketing and Advertising Fund Contribution for
any Promotion Year shall be prorated if Tenant opens the Premises for business
after the commencement of any such Promotion Year. If during the Term the
Consumer Price Index is changed or discontinued, Tenant and Landlord shall
agree upon a comparable index, formula or other means of measurement of the
relative purchasing power of the dollar and such substitute index, formula or
other means shall be utilized in place of the Consumer Price Index as if it
had been originally designated in this Lease.
11.3 (intentionally Deleted)
11.4 "Promotion Year" Defined
"Promotion Year" means each calendar year or portion thereof occurring during
the Term.
11.5 (Intentionally Deleted)
ARTICLE XII
Utilities
12.1 Water, Electricity, Telephone, Sanitary Sewer and Air Conditioning.
Landlord will provide at points in or near the Premises the facilities
necessary to enable Tenant to obtain for the Premises water, electricity,
telephone and sanitary sewer service. Tenant shall not at any time over burden
or exceed the capacity of the mains, feeders, ducts, conduits, or other
facilities by which such utilities are supplied to, distributed in or serve
the Premises. If Tenant desires to install any equipment which shall require
additional utility facilities or utility facilities of a greater capacity than
the facilities provided by Landlord, such installation shall be subject to
Landlord's prior written approval of Tenant's plans and specifications
therefor. If such installation is approved by Landlord and if Landlord
provides such additional facilities to accommodate Tenant's installation,
Tenant agrees to pay Landlord, on demand, the cost for providing such
additional utility facilities or utility facilities of greater capacity.
Tenant shall pay for all water, sanitary sewer, electricity and telephone
service required by or used by Tenant in the Premises. Landlord may supply any
or all of the above-named services, except electricity and telephone service,
to the Premises and Tenant agrees to pay Landlord in accordance with the terms
of this Article XII and the Schedule(s) referred to herein. With respect to
water and sanitary sewer, Tenant shall pay to Landlord therefore in accordance
with the provisions of Section 12.2.
12.2 Water and Sewer Charges
Water and sanitary sewer service shall be supplied to the Celebrity Square by
municipal utility or public companies serving the area in which the Celebrity
Square is located.
12.3 Fire Protection Sprinkler System
The fire protection sprinkler system and sprinkler heads in the Premises shall
be maintained by Tenant and shall remain the property of Landlord at the
termination of this Lease. Any modifications or additions required to the
existing sprinkler system within the Premises shall be at Tenant's sole cost
and expense.
12.4 Discontinuances and Interruptions of Utility Services
Landlord reserves the right to cut off and discontinue, without notice to
Tenant, furnishing any utility services furnished by Landlord at any time when
Tenant has failed to pay timely any amount (whether as Rental or otherwise)
due under this Lease. Landlord shall not be liable for any damages resulting
from or arising out of
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any such discontinuance and the same shall not constitute a termination of
this Lease or an eviction of Tenant. Landlord shall not be liable to Tenant in
damages or otherwise (i) if any utility shall become unavailable from any
public utility company, public authority or any other person or entity
(including Landlord) supplying or distributing such utility, or (ii) for any
interruption in any utility service caused by the making of any necessary
repairs or improvements or by any cause beyond Landlord's reasonable control,
and the same shall not constitute a termination of this Lease or an eviction
of Tenant.
12.5 Landlord's Right to Alter Utilities
Landlord, at its sole discretion, reserves and shall at all times, have the
right to alter utilities and equipment serving the Celebrity Square and Tenant
agrees to execute and deliver to Landlord without delay such documentation as
may be required to effect such alteration.
Landlord reserves the right, without any liability to Tenant and without
affecting Tenant's covenants and obligations hereunder, to stop or interrupt
or reduce any of the services listed in this Section or to stop or interrupt
or reduce any other services, required of Landlord under this Lease, whenever
and for so long as may be necessary, by reason of (i) accidents, emergencies,
strikes or the occurrence of any of the other events of force majeure, (ii)
the making of repairs or changes which Landlord is required or is permitted by
this Lease or by law to make or in good xxxxx xxxxx necessary, (iii)
difficulty in securing proper supplies of fuel, steam, water, electricity, or
(iv) any other cause beyond Landlord's reasonable control, whether similar or
dissimilar to the foregoing. Landlord does not warrant that the services
provided for in this Lease will be free from interruption or stoppage
resulting from the above causes, and specifically no reduction, interruption
or stoppage of any such services for any reason, shall ever be construed as an
eviction of Tenant nor shall the same cause any abatement of the rent payable
hereunder or in any manner or for any purpose relieve Tenant from any of
Tenant's obligations hereunder, and in any event, Landlord shall not be liable
for any loss, cost or damage, direct or consequential, of any nature arising
in connection with interruption or stoppage of any of such services or for any
damage to persons or property resulting therefrom; provided, however, Landlord
agrees to use reasonable diligence to resume the service or to cause the same
to be resumed.
ARTICLE XIII
Indemnity and Insurance
13.1 Indemnity by Tenant
Tenant assumes full responsibility for the Premises and shall indemnity, hold
harmless and defend Landlord, its agents, servants and employees from and
against any and all claims, actions, damages, liabilities and expenses,
including, but not limited to, attorney's and other professional fees and
defense costs, (i) arising from any loss of life, personal injury and/or
damage to any person or property occurring in, on, or about the Premises or
(ii) arising from any loss of life, personal injury and/or damage to any
person or property occurring outside of the Premises and resulting from any
act, omission, or negligence of Tenant, its contractors, licensees, agents or
employees, in whole or in part, except to the extent that such injury or
damage is attributable to the negligent acts or omissions of Landlord.
13.2 Landlord Not Responsible for Acts of Others
Landlord shall not be responsible or liable to Tenant, or to those claiming
by, through or under Tenant, for any loss or damage which may be occasioned by
or through the acts or omissions of persons occupying space adjoining the
Premises or any part of the premises adjacent to or connecting with the
Premises or any other part of the Celebrity Square, or otherwise, or for any
loss or damage resulting to Tenant, or those claiming by, through or under
Tenant, or its or their property, from the breaking, bursting, stoppage or
leaking of electrical cable and wires, and water, gas, sewer or steam pipes.
To the maximum extent permitted by law, Tenant agrees to use and occupy the
Premises and to use such other portions of the Celebrity Square as Tenant is
herein given the right to use, at Tenant's own risk.
13.3 Tenant's Insurance
At all times after the execution hereto, the Tenant shall carry or cause to be
carried at its expense non-deductible worker's compensation insurance in the
amount required by applicable statutes and policies of insurance against
public liability and property damage, including, without limitation,
commercial general liability, employer's liability, employee's vehicle
liability coverages and insurance against assumed or contractual liability
under this Lease (collectively the "Tenant's Liability Insurance")
specifically naming the Landlord, as an additional insured, with a combined
single limit of at least $2,000,000.00.
Tenant's Liability insurance shall also include any specific coverages that
Landlord requires due to the specific nature of Tenant's use of Premises
(i.e., "dram shop" or liquor liability" coverage for a Tenant whose allowable
use includes the sale of alcoholic beverages).
13.4 Tenant's Contractor's Insurance
Tenant shall require any contractor performing work on the Premises to carry
and maintain, at no expense to Landlord, non-deductible policies of insurance
in the same manner as Tenant is required under 13.3.
13.5 Policy Requirements
The company or companies writing any insurance which Tenant and/or Tenant's
contractor is required to carry and maintain or cause to be carried or
maintained pursuant to Sections 13.3 and 13.4 as well as the form of such
insurance shall at all times be subject to Landlord's approval and any such
company or companies shall be licensed to do business in the State of South
Carolina and have a Best rating or at least B+. Public liability and all-risks
property and casualty insurance policies evidencing such insurance shall name
Landlord and any other entities designated by Landlord as additional insureds
and shall also contain a provision by which the insurer agrees that such
policy shall not be canceled except after thirty (30) days' written notice to
Landlord or its designee. Each such policy, or a certificate thereof, shall be
deposited with Landlord by Tenant promptly upon commencement of Tenant's
obligation to procure the same. If Tenant shall fail to perform any of its
obligations under Sections 13.3, 13.4, or 13.5, Landlord may perform the same
and the cost of same together with Landlord's administrative costs shall be
deemed Additional Rental and shall be payable upon Landlord's demand.
13.6 Increase in Insurance Premiums
Tenant will not do or suffer to be done, or keep or suffer to be kept,
anything in, upon or about the Premises which will violate Landlord's policies
of hazard or liability insurance or which will prevent Landlord from procuring
such policies in companies acceptable to Landlord. If anything done, omitted
to be done or suffered by Tenant to be kept in, upon or about the Premises
shall cause the rate of fire or other insurance on the Premises or on other
property of Landlord or of others within the Celebrity Square to be increased
beyond the minimum rate from time to time applicable to the Premises or to any
such property for the use or uses made thereof, Tenant will pay, as Additional
Rental, the amount of any such increase upon Landlord's demand.
13.7 Waiver of Right of Recovery
Neither Landlord nor Tenant shall be liable to the other party or to any
insurance company (by way of subrogation or otherwise) insuring the other
party for any loss or damage to any building, structure or other tangible
property or liability for personal injury, or losses under workmen's
compensation laws and benefits, even though such loss or damage might have
been occasioned by the negligence of such
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party, its agents or employees. However, if by reason of the foregoing waiver,
either party shall be unable to obtain any such insurance, such waiver shall
be deemed not to have been made by such party.
13.8 Tenant to Pay Proportionate Share of Insurance Costs
In each Rental Year Tenant shall pay Landlord, as Additional Rental, a
proportionate share of Landlord's cost of maintaining all insurance with
respect to Landlord's Building, including, without limitation, all-risks
property and casualty insurance, flood insurance and rent insurance. Such
insurance may be carried at the discretion of Landlord in such amounts and
companies as Landlord shall determine.
Tenant's proportionate share of such costs for any Rental Year shall be
computed by multiplying Landlord's insurance costs for the Rental Year in
question by a fraction, the numerator of which shall be Tenant's Floor Area,
and the denominator of which shall be Landlord's Floor Area. Such
proportionate share shall be paid by Tenant in monthly installments in such
amounts as are estimated and billed by Landlord during each twelve (12) month
period commencing and ending on dates designated by Landlord, each installment
being due on the first day of each calendar month. If at any time during such
twelve (12) month period, it shall appear that Landlord has underestimated
Tenant's proportionate share of Landlord's insurance costs for such twelve
(12) month period, Landlord may re-estimate Tenant's proportionate share of
Landlord's insurance costs and may xxxx Tenant for any deficiency which may
have accrued during such twelve (12) month period and thereafter the monthly
installment payable by Tenant shall also be adjusted. Within six (6) months,
or such reasonable time (in Landlord's determination) after the end of each
such twelve (12) month period, Landlord shall deliver to Tenant a statement of
such insurance costs for such twelve (12) month period. Any overpayment or
deficiency in Tenant's payment of its proportionate share of such insurance
costs shall be adjusted between Landlord and Tenant, and Tenant shall pay
Landlord or Landlord shall credit to Tenant's account or (if such adjustment
is at the end of the Term) pay Tenant, as the case may be, within thirty (30)
days of receipt of such statement, such amounts as may be necessary to effect
such adjustment. Upon reasonable notice, Landlord shall make available for
Tenant's inspection at Landlord's office during normal business hours,
Landlord's records relating to such insurance costs for such preceding twelve
(12) month period. The failure of Landlord to provide the statement called for
hereunder within the time prescribed shall not relieve Tenant of its
obligations hereunder.
13.9 Tenant's Failure to Comply.
If Tenant fails to comply with the foregoing requirements relating to
insurance, Landlord may obtain such insurance and Tenant shall pay to Landlord
immediately on demand the premium cost thereof.
13.10 (Intentionally Deleted)
ARTICLE XIV
Damage and Destruction
14.1 Landlord's Obligation to Repair and Reconstruct
If the Premises shall be damaged by fire, the elements, accident or other
casualty (any of such causes being referred to herein as a "Casualty"), but
the Premises shall not be thereby rendered wholly or partially untenantable,
Landlord shall promptly cause such damage to be repaired and there shall be no
abatement of Rental. If, as the result of Casualty, the Premises shall be
rendered wholly or partially untenantable, then, subject to the provisions of
Section 14.2, Landlord shall cause such damage to be repaired and, provided
such damage is not caused by the negligence of Tenant, its agents,
concessionaires, officers, employees, contractors, licensees or invitees, all
Rental (other than any Additional Rental due Landlord by reason of Tenant's
failure to perform any of its obligations hereunder) shall be abated
proportionately as to the portion of the Premises rendered untenantable
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during the period of such untenantability. All such repairs shall be made at
the expense of the Landlord, subject to Tenant's responsibilities set forth
herein. Landlord shall not be liable for interruption to Tenant's business or
for damage to or replacement or repair of Tenant's personal property
(including, without limitation, inventory, trade fixtures, floor coverings,
furniture and other property removable by Tenant under the provisions of this
Lease) or to any leasehold improvements installed in the Premises, all of
which damage, replacement or repair shall be undertaken and completed by
Tenant promptly.
14.2 Landlord's Option to Terminate Lease
If the Premises are (a) rendered wholly untenantable, or (b) damaged as a
result of any cause which is not covered by Landlord's insurance or (c)
damaged or destroyed in whole or in part during the last three (3) years of
the Term, or if Landlord's Building is damaged to the extent of fifty percent
(50%) or more of Landlord's Floor Area, then, in any of such events, Landlord
may elect to terminate this Lease by giving to Tenant notice of such election
within ninety (90) days after the occurrence of such event. If such notice is
given, the rights and obligations of the parties shall cease as of the date of
such notice, and Rental (other than any Additional Rental due Landlord by
reason of Tenant's failure to perform any of its obligations hereunder) shall
be adjusted as of the date of such termination.
14.3 Demolition of Landlord's Building
If Landlord's Building shall be so substantially damaged that it is reasonably
necessary, in Landlord's judgment, to demolish such Building for the purpose
of reconstruction, Landlord may demolish the same in which event the Rental
shall be abated to the same extent as if the Premises were rendered
untenantable by a Casualty.
14.4 Insurance Proceeds
If Landlord does not elect to terminate this Lease pursuant to Section 14.2,
Landlord shall, subject to the prior rights of any Mortgagee, disburse and
apply any insurance proceeds received by Landlord to the restoration and
rebuilding of Landlord's Building in accordance with Section 14.1 hereof. All
insurance proceeds payable with respect to the Premises (excluding proceeds
payable to Tenant pursuant to Section 13.3) shall belong to and shall be
payable to Landlord.
ARTICLE XV
Condemnation
15.1 Effect of Taking
If the whole or any part of the Premises shall be taken under the power of
eminent domain, this Lease shall terminate as to the part so taken on the date
Tenant is required to yield possession thereof to the condemning authority.
Landlord shall make such repairs and alterations as may be necessary in order
to restore the part not taken to useful condition and all Rental (other than
any Additional Rental due Landlord by reason of Tenant's failure to perform
any of its obligations hereunder) shall be reduced in the same proportion as
the portion of the Floor Area of the Premises so taken bears to Tenant's Floor
Area. If the aforementioned taking renders the remainder of the Premises
unsuitable for the Permitted Use, either party may terminate this Lease as of
the date when Tenant is required to yield possession by giving notice to that
effect within thirty (30) days after such date. If twenty percent (20%) or
more of Landlord's Floor Area in the Celebrity Square Area is taken as
aforesaid, Landlord may elect to terminate this Lease as of the date on which
possession thereof is required to be yielded to the condemning authority, by
giving notice of such election within ninety (90) days after such date. If any
notice of termination is given pursuant to this Section, this Lease and the
rights and obligations of the parties hereunder shall cease as of the date of
such notice and Rental (other than any Additional Rental due Landlord by
reason of Tenant's failure
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to perform any of its obligations hereunder) shall be adjusted as of the date
of such termination.
15.2 Condemnation Awards
All compensation awarded for any taking of the Premises or the Celebrity
Square Area or any interest in either shall belong to and be the property of
Landlord, Tenant hereby assigning to Landlord all rights with respect thereto;
provided, however, nothing contained herein shall prevent Tenant from applying
for reimbursement from the condemning authority (if permitted by law) for
moving expenses, or the expense of removal of Tenant's trade fixtures, or loss
of Tenant's business good will, but if and only if such action shall not
reduce the amount of the award or other compensation otherwise recoverable
from the condemning authority by Landlord or the owner of the fee simple
estate in the Celebrity Square Area.
ARTICLE XVI
Assignments and Subletting
16.1 Landlord's Consent Required
Tenant will not assign this Lease, in whole or in part, nor sublet all or any
part of the Premises, nor license concessions or lease departments therein,
nor pledge or secure by mortgage or other instruments this Lease, without
first obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld. This prohibition includes, without limitation, (i) any
subletting or assignment which would otherwise occur by operation of law,
merger, consolidation, reorganization, transfer or other change of Tenant's
corporate or proprietary structure; (ii) an assignment or subletting to or by
a receiver or trustee in any Federal or State bankruptcy, insolvency, or other
proceedings; (iii) the sale, assignment or transfer of all or substantially
all of the assets of Tenant, with or without specific assignment of Lease; or
(iv) the change in control in a partnership. Consent by Landlord to any
assignment or subletting shall not constitute a waiver of the requirement for
such consent to any subsequent assignment or subletting, nor shall such
consent be deemed to release Tenant or any Guarantor from liability under this
Lease except to the extent such consent specifically provides in writing.
Tenant shall pay to Landlord, as Additional Rental, the sum of Five Hundred
and No/100 Dollars ($500.00) to cover Landlord's administrative costs,
overhead and counsel fees, plus all out-of-pocket expenses, in connection with
such assignment or subletting consented to by Landlord and any and all
additional costs and expenses incurred hereunder. The parties of this Lease
agree that it shall be deemed to be reasonable under this Lease and under
applicable law for Landlord to withhold consent to an assignment of the Lease
or the subletting of the Premises where one or more of the following apply:
(i) The transferee is a character or reputation or engaged in a business
which is not consistent with the quality of operation of the Celebrity Square
Area or would be a significantly less prestigious occupant of the Premises
than Tenant.
(ii) The transferee is not a party of at least equivalent credit-
worthiness as the Tenant.
(iii) The transferee is not a party with at least equivalent experience
in operating an EasyRider Cafe.
16.2 Transfer of Corporate Shares
If Tenant is a corporation or is a partnership with a corporate general
partner that controls a majority interest or voting control of the partnership
(other than a corporation the outstanding voting stock of which is listed on a
"national securities exchange", as defined in the Securities Exchange Act of
1934) and if at any time after execution of this Lease any part or all of the
corporate shares shall be transferred by sale, assignment, bequest,
inheritance, operation of law or other
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disposition (including, but not limited to, such a transfer to or by a
receiver or trustee in Federal or State bankruptcy, insolvency, or other
proceedings) so as to result in a change in the present control of said
corporation by the person or persons now owning a majority of said corporate
shares, Tenant shall give Landlord notice of such event within fifteen (15)
days from the date of such transfer. In such event and whether or not Tenant
has given such notice, Landlord may elect to terminate this Lease at any time
thereafter by giving Tenant notice of such election, in which event this Lease
and the rights and obligations of the parties hereunder shall cease as of a
date set forth in such notice. In the event of any such termination, all
Rental (other than any Additional Rental due Landlord resulting from Tenant's
failure to perform any of its obligations hereunder) shall be adjusted as of
the date of such termination.
16.3 Acceptance of Rent from Transferee
The acceptance by Landlord of the payment of Rental following any assignment
or other transfer prohibited by this Article shall not be deemed to be a
consent by Landlord to any such assignment or other transfer nor shall the
same be deemed to be a waiver of any right or remedy of Landlord hereunder.
ARTICLE XVII
Default
17.1 "Event of Default" Defined
Any one or more of the following events shall constitute an "Event of
Default":
(a) The sale of Tenant's interest in the Premises under attachment,
execution or similar legal process; or if Tenant is adjudicated a bankrupt or
insolvent under any State bankruptcy or insolvency law or an order for relief
is entered against Tenant under the Federal Bankruptcy Code and such
adjudication or order is not vacated within ten (10) days.
(b) The commencement of a case under any chapter of the Federal
Bankruptcy Code by or against Tenant or any guarantor of Tenant's obligations
hereunder, or the filing of a voluntary or involuntary petition proposing the
adjudication of Tenant or any guarantor a bankrupt or insolvent, or the
reorganization of Tenant or any such guarantor, or an arrangement by Tenant
or any guarantor with its creditors, unless the petition is filed or case
commenced by a party other than Tenant or any such guarantor and is
withdrawn or dismissed within thirty (30) days after the date of its filing.
(c) The admission in writing by Tenant or any guarantor of Tenant's
obligations hereunder of its inability to pay its debts when due.
(d) The appointment of a receiver or trustee for the business or property
of Tenant or any guarantor of Tenant's obligations hereunder, unless such
appointment shall be vacated within ten (10) days of its entry,
(e) The making by Tenant or any guarantor of Tenant's obligations
hereunder of an assignment for the benefit of its creditors, or if in any
other manner. Tenant's interest in this Lease shall pass to another by
operation of law.
(f) The failure of Tenant to pay any Rental or other sum of money within
seven (7) days after the same is due hereunder. Tender of Rentals due after
legal action has been commenced against Tenant for non-payment of Rental shall
not be a defense to such action.
(g) Default by Tenant in the performance or observance of any covenant or
agreement of this Lease (other than a default involving the payment of
money), which default is not cured within ten (10) days after the giving of
notice thereof by Landlord, unless such default is of such nature that it
cannot be cured within such ten (10) day period, in which case no Event of
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Default shall occur so long as Tenant shall commence the curing of the default
within such ten (10) day period and shall thereafter diligently prosecute the
curing of same; provided, however, if Tenant shall default in the performance
of any such covenant or agreement of this Lease two (2) or more times in any
twelve (12) month period, that notwithstanding such defaults have each been
cured by Tenant, any further similar default shall be deemed an Event of
Default without the ability for cure.
(h) The vacating or abandonment of the Premises by Tenant at any time
during the Term of this Lease or closing the Premises as a retail sales store
for a period in excess of thirty (30) days unless such closing is for the
purpose of renovation, repair or permitted alterations.
(j) The occurrence of any other event described as constituting an "Event
of Default" elsewhere in this Lease.
17.2 Remedies
Upon the occurrence and continuance of an Event of Default, Landlord, without
notice to Tenant in any instance (except where expressly provided for below)
may:
(a) With such judicial process as may be required by law, enter the
Premises and take possession of any and all goods, inventory, equipment,
fixtures and all other personal property of Tenant situated in the Premises
without liability for trespass or conversion, and may sell all or any part
thereof at public or private sale. Tenant agrees that five (5) days notice of
any public sale and five (5) days prior notice of the date after which any
private sale shall be held shall constitute reasonable notice. The proceeds of
any such sale shall be applied, first, to the payment of all costs and
expenses of conducting the sale or caring for or storing said property,
including all attorneys' fees; second, toward the payment of any indebtedness,
including (without limitation) indebtedness for Rental, which may be or may
become due from Tenant to Landlord; and third, to pay the Tenant, on demand in
writing, any surplus remaining after all indebtedness of Tenant to Landlord
has been fully paid.
(b) With such judicial process as may be required by law, perform, on
behalf and at the expense of Tenant, any obligation of Tenant under this Lease
which Tenant has failed to perform and of which Landlord shall have given
Tenant notice, the cost of which performance by Landlord, together with
interest thereon at the Default Rate from the date of such expenditure, shall
be deemed Additional Rental and shall be payable by Tenant to Landlord upon
demand.
(c) Elect to terminate this Lease and the tenancy created hereby by
giving notice of such election to Tenant, and may with judicial process
reenter the Premises, and may remove Tenant and all other persons (if Tenant
is still in possession) and property from the Premises, and may store such
property in a public warehouse or elsewhere at the cost of and for the account
of Tenant and without Landlord being deemed guilty of trespass or becoming
liable for any loss or damage occasioned thereby.
(d) Exercise any other legal or equitable right or remedy which it may
have.
Notwithstanding the provisions of clause (b) above and regardless of whether
an Event of Default shall have occurred, Landlord may exercise the remedy
described in clause (b) without any notice to Tenant if Landlord, in its good
faith judgment, believes it would be injured by failure to take rapid action
or if the unperformed obligation of Tenant constitutes an emergency.
Any reasonable costs and expenses incurred by Landlord (including attorneys'
fees) in enforcing any of its rights or remedies under this Lease shall be
deemed to be Additional Rental and shall be repaid to Landlord by Tenant upon
demand.
TENANT /s/ MP LANDLORD /s/ DPW
17.3 Damages
If Tenant's right of possession under this Lease is terminated by Landlord
pursuant to Section 17.2, Tenant nevertheless shall remain liable for any
Rental and damages which may be due or sustained by Landlord and all
reasonable costs, fees and expenses including, but not limited to, attorneys'
fees, costs and expenses incurred by Landlord in pursuit of its remedies
hereunder, or in renting the Premises to others from time to time and
additional damages which shall be an amount or amounts equal to the Rental
which, but for termination of Tenant's rights of possession under this Lease,
would have become due during the remainder of the Term, less the amount or
amounts of rental, if any, which Landlord shall receive during such period
from others to whom the Premises may be rented (other than any Additional
Rental received by Landlord as a result of any failure of such other person to
perform any of its obligations to Landlord).
If this Lease is terminated pursuant to Section 17.2, Landlord may relet the
Premises or any part thereof, alone or together with other premises, for such
term or terms (which may be greater or less than the period which otherwise
would have constituted the balance of the Term) and on such terms and
conditions (which may include concessions or free rent and alterations of the
Premises) as Landlord, in its absolute discretion, may determine, but Landlord
shall not be liable for, nor shall Tenant's obligations hereunder be
diminished by reason of, any failure by Landlord to relet the Premises or any
failure by Landlord to collect any rent due upon such reletting.
17.4 Assignment in Bankruptcy
In the event of an assignment by operation of law under the Federal Bankruptcy
Code, or any State bankruptcy or insolvency law and Landlord elects not to
terminate or is stayed from termination of Tenant's rights of possession under
this Lease, the assignee shall provide Landlord with adequate assurance of
future performance of all of the terms, conditions and covenants of the Lease,
which shall include, but which shall not be limited to, assumption of all the
terms, covenants and conditions of the Lease by the assignee and the making by
the assignee of the following express covenants to Landlord:
(a) That assignee has sufficient capital to pay the Rental and other
charges due under the Lease for the entire Term; and
(b) That Annual Percentage Rental due under the Lease will not decline
substantially from the highest Annual Percentage Rental paid by Tenant prior
to such bankruptcy or insolvency proceedings; and
(c) That assumption of the Lease by the assignee will not cause Landlord
to be in violation or breach of any provision in any other lease, financing
agreement or operating agreement relating to the Celebrity Square; and
(d) That such assignment and assumption by the assignee will not
substantially disrupt or impair any existing tenant mix in the Celebrity
Square.
ARTICLE XVIII
Subordination and Attornment
18.1 Subordination
Unless a Mortgagee (as hereinafter defined) shall otherwise elect as provided
in section 18.2, Tenant's rights under this Lease are and shall remain subject
and subordinate to the operation and effect of
(a) any lease of land only or of land and buildings in a sale-leaseback
transaction involving the Premises, or
(b) any mortgage, deed of trust or other security instrument constituting
a mortgage lien upon the Premises,
TENANT /s/ MP LANDLORD /s/ DPW
whether the same shall be in existence at the date hereof or created
hereafter, any such lease, mortgage, deed of trust or other security
instrument being referred to herein as a "Mortgage" and the party or parties
having the benefit of the same, whether as lessor, mortgagee, trustee or
noteholder, being referred to herein as "Mortgagee". Tenant's acknowledgment
and agreement of subordination provided for in this Section is self-operative
and no further instrument of subordination shall be required; however, Tenant
shall execute such further assurances thereof as shall be requisite or as may
be requested from time to time by Landlord or a Mortgagee.
Notwithstanding any other provisions of this Lease to the contrary, no
subordination of this Lease and no obligation of Tenant to attorn shall be
effective unless the Mortgagee delivers to Tenant a binding written
undertaking enforceable by and for the benefit of Tenant under applicable law,
that this Lease and Tenant's rights hereunder shall continue undisturbed while
Tenant is not in default beyond express periods for cure.
18.2. Mortgagee's Unilateral Subordination
If a Mortgagee shall so elect by notice to Tenant or by the recording of
unilateral declaration of subordination, this Lease and Tenant's rights
hereunder shall be superior and prior in right to the Mortgage of which such
Mortgagee has the benefit, with the same force and effect as if this Lease had
been executed, delivered and recorded prior to the execution, delivery and
recording of such Mortgage, subject, nevertheless, to such conditions as may
be set forth in any such notice or declaration.
18.3 Attornment
If any person shall succeed to all or part of Landlord's interest in the
Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power
of sale, termination of lease, or otherwise, and if so requested or required
by such successor in interest, Tenant shall attorn to such successor in
interest and shall execute such agreement in confirmation of such attornment
as such successor in interest shall reasonably request; provided that any such
successor in interest shall be deemed by reliance on this Section 18.3 to have
agreed that it shall not disturb possession by Tenant of the Premises except
as provided in this Lease and such successor in interest will acknowledge such
non-disturbance agreement in any confirmation of attornment as it requests.
ARTICLE XIX
Notices
19.1 Sending of Notices
Any notice, request, demand, approval or consent given or required to be given
under this Lease shall be in writing and shall be deemed to have been given as
follows:
(i) If intended for Landlord, on the third day following the day on which the
same shall have been mailed by United States registered or certified mail,
return receipt requested, with all postage charges prepaid, addressed to
Landlord at each of the following address: Xxxxxxxxx & Xxxxxx Company,
Inc., 0000 Xxx Xxxxxx, Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000; with a copy to
Landlord's management office in the Celebrity Square, except that payment
of Rental and sales reports shall be delivered to Landlord's main office.
(ii) If intended for Tenant, the third day following the day on which the
same shall have been mailed by the United States registered or certified mail,
return receipt requested, with all postal charges prepaid, addressed to Tenant
at the Tenant Notice Address with a copy to the Premises.
TENANT /s/ MP LANDLORD /s/ DPW
Either party may, at any time, change its Notice Address and for the above
purposes by sending a notice to the other party stating the change and setting
forth the new address.
19.2 Notice to Mortgagees
If any Mortgagee shall notify Tenant that it is the holder of a Mortgage
affecting the Premises, no notice, request or demand thereafter sent by Tenant
to Landlord shall be effective unless and until a copy of the same shall also
be sent to such Mortgagee in the manner prescribed in Section 19.1 and to such
address as such Mortgagee shall designate.
ARTICLE XX
Quiet Enjoyment
20.1 Warranty
Landlord warrants that it has full right and authority to lease the Premises
upon the terms and conditions herein set forth; and the Tenant shall
peacefully and quietly hold and enjoy the Premises for the full Term hereof so
long as it does not default in the performance of any of its covenants
hereunder.
ARTICLE XXI
Miscellaneous
21.1 Retail Restriction Limit
Except for a sales and service store which store sells Easy Rider apparel and
other merchandise (and does not contain restaurant, bar or cafe)Tenant agrees
that Tenant (and if Tenant is a corporation or partnership, its officers,
directors, stockholders, any affiliates or partners) shall not, directly or
indirectly, operate, manage or have any interest in any other store (unless in
operation on the date of this Lease) or business which is similar to or in
competition with the Permitted Use within the Retail Radius Restriction except
in other properties owned and/or operated by Landlord.
'21.2 Estoppel Certificates
At any time and from time to time, within ten (10) days after Landlord shall
request the same, Tenant will execute, acknowledge and deliver to Landlord and
to such Mortgagee or other party as may be designated by Landlord, a
certificate in the acceptable form with respect to the matters required by
such party and such other matters relating to this Lease or the status of
performance of obligations of the parties hereunder as may be reasonably
requested by Landlord. In the event that Tenant falls to provide such
certificate within ten (10) days after request therefor by Landlord, Tenant
shall be deemed to have approved the contents of any such certificate
submitted to Tenant by Landlord and Landlord is hereby authorized to so
certify. Said certificate shall be considered delivered to the Landlord and
Mortgagee or other designated party when it has been transmitted in accordance
with Section 19.1 of this Lease. Any Guarantor of this Lease shall be obliged
to deliver said certificates as outlined above.
21.3 Inspections and Access by Landlord
Tenant will permit Landlord, its agents, employees and contractors to enter
all parts of the Premises during Tenant's business hours to inspect the same
and to enforce or carry out any provision of this Lease, including, without
limitation, any access necessary for the making of any repairs which are
Landlord's obligation hereunder; provided that, in an emergency situation,
such access shall be at any time upon Landlord's oral request.
21.4 Memorandum of Lease
TENANT /s/ MP LANDLORD /s/ DPW
This Lease shall not be recorded.
The parties hereby agree that, upon the request of either party, each will
execute, acknowledge and deliver a short form or memorandum of this Lease in
recordable form. Recording, filing and like charges and any stamp, charge for
recording, transfer or other tax shall be paid by the Tenant. In the event of
termination of this Lease, within thirty (30) days after written request from
Landlord, Tenant agrees to execute, acknowledge and deliver to Landlord an
agreement removing such short form of lease from record. If Tenant fails to
execute such agreement within said thirty (30) day period or fails to notify
Landlord within said thirty (30) day period of its reasons for refusing to
execute such agreement, Landlord is hereby authorized to execute and record
such agreement removing the short form of lease from record. These provisions
shall survive any termination of this Lease.
21.5 Remedies Cumulative
No reference to any specific right or remedy shall preclude Landlord from
exercising any other right or from having any other remedy or from maintaining
any action to which it may otherwise be entitled at law or in equity. No
failure by Landlord to insist upon the strict performance of any agreement,
term, covenant or condition hereof, or to exercise any right or remedy
consequent upon a breach thereof, and no acceptance of full or partial rent
during the continuance of any such breach, shall constitute a waiver of any
such breach, agreement, term, covenant or condition. No waiver by Landlord of
any breach by Tenant under this Lease or of any breach by any other tenant
under any other lease of any portion of the Celebrity Square shall affect or
alter this Lease in any way whatsoever.
21.6 Successors and Assigns
This Lease and the covenants and conditions herein contained shall inure to
the benefit of and be binding upon Landlord, its successors and assigns, and
shall be binding upon Tenant, its successors and assigns and shall inure to
the benefit of Tenant and only such assigns of Tenant to whom the assignment
of this Lease by Tenant has been consented to by Landlord. Upon any sale or
other transfer by Landlord of its interest in the Premises, Landlord shall be
relieved of any obligations under this Lease occurring thereafter.
21.7 Compliance with Laws and Regulations
Tenant, at its sole cost and expense, shall comply with and shall cause the
Premises to comply with (a) all federal, state, county, municipal and other
governmental statutes, laws, rules, orders, regulations, and ordinances
affecting the Premises or any part thereof, or the use thereof, including, but
not limited to, those which require the making of any structural, unforeseen
or extraordinary changes, whether or not any such statutes, laws, rules,
orders, regulations or ordinances which may be hereafter enacted involve a
change of policy on the part of the governmental body enacting the same, and
(b) all rules, orders and regulations of the National Board of Fire
Underwriters or Landlord's fire insurance rating organization or other bodies
exercising similar functions in connection with the prevention of fire or the
correction of hazardous conditions which apply to the Premises.
21.8 Captions and Headings
The Article and Section captions and headings are for convenience of reference
only and in no way shall be used to construe or modify the provisions set
forth in this Lease.
21.9 Joint and Several Liability
If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) shall sign this Lease
as Tenant, the liability of each such individual, corporation, partnership or
other business association to pay rent and perform all other obligations
hereunder shall be deemed
TENANT /s/ MP LANDLORD /s/ DPW
to be joint and several, and all notices, payments and agreements given or
made by, with or to any one of such individuals, corporations, partnerships or
other business associations shall be deemed to have been given or made by,
with or to all of them. In like manner, if Tenant shall be a partnership or
other business association, the members of which are, by virtue of statute or
federal law, subject to personal liability, the liability of each member shall
be joint and several.
21.10 Broker's Commission
Each of the parties represents and warrants that there are no claims for
brokerage commissions or finders' fees in connection with the execution of
this Lease, and agrees to indemnify the other against, and hold it harmless
from, all liability arising from any such claim based on the alleged act or
representation of such party, including, without limitation, the cost of
counsel fees in connection therewith.
21.11 No Discrimination
It is intended that the Celebrity Square shall be developed so that all
prospective tenants thereof, and all customers, employees, licensees and
invitees of all tenants shall have the opportunity to obtain all the goods,
services, accommodations, advantages, facilities and privileges of the
Celebrity Square without discrimination because of race, creed, color, sex,
age, national origin or ancestry. To that end, Tenant shall not discriminate
in the conduct and operation of its business in the Premises against any
person or group of persons because of the race, creed, color, sex, age,
national origin or ancestry of such person or group of persons.
21.12 No Joint Venture
Any intention to create a joint venture or partnership relation between the
parties hereto is hereby expressly disclaimed. The provisions of this Lease in
regard to the payment by Tenant and the acceptance by Landlord of a percentage
of admissions sales or Gross Sales of Tenant and others is a reservation for
rent for the use of the Premises.
21.13 No Option
The submission of this Lease for examination does not constitute a reservation
of or option for the Premises, and this Lease shall become effective only upon
execution and delivery thereof by both parties.
21.14 No Modification
This writing is intended by the parties as a final expression of their
agreement and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations and representations between the parties having
been incorporated herein. No course of prior dealings between the parties or
their officers, employees, agents or affiliates shall be relevant or
admissible to supplement, explain or vary any of the terms of this Lease.
Acceptance of, or acquiescence in, a course of performance rendered under this
or any prior agreement between the parties or their affiliates shall not be
relevant or admissible to determine the meaning of any of the terms of this
Lease. No representations, understandings or agreements have been made or
relied upon in the making of this Lease other than those specifically set
forth herein. This Lease can be modified only by a writing signed by the party
against whom the modification is enforceable.
21.15 Severability
If any term or provision, or any portion thereof, of this Lease, or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances, other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
TENANT /s/ MP LANDLORD /s/ DPW
21.16 Third Party Beneficiary
Nothing contained in this Lease shall be construed so as to confer upon any
other party the rights of a third party beneficiary except rights contained
herein for the benefit of a Mortgagee.
21.17 Corporate Tenants
In the event Tenant is a corporation, the persons executing this Lease on
behalf of Tenant hereby covenant and warrant that: Tenant is a duly
constituted corporation qualified to do business in the state in which the
Celebrity Square is located; all Tenant's franchises and corporate taxes have
been paid to date; all future forms, reports, fees and other documents
necessary for Tenant to comply with applicable laws will be filed by Tenant
when due; and such persons are duly authorized by the board of directors of
such corporation to execute and deliver this Lease on behalf of the
corporation. Further, Tenant shall submit to Landlord a copy of its corporate
resolutions authorizing the execution of the Lease at the time it submits the
executed Leases to Landlord.
21.18 Applicable Law
This Lease and the rights and obligations of the parties hereunder shall be
construed in accordance with the laws of the state in which the Celebrity
Square is located.
21.19 Time of Essence
Time is of the essence of this Lease.
21.20 Performance of Landlord's Obligations by Mortgagee
Tenant shall accept performance of any of Landlord's obligations hereunder by
any Mortgagee.
21.21 Waiver of Jury Trial
Landlord and Tenant hereby mutually waive any and all right which either may
have to request a jury trial in any proceeding at law or in equity in any
court of competent jurisdiction.
21.22 Landlord's Option to Terminate Lease
Notwithstanding any provision herein to the contrary, if for any reason
whatsoever the Premises shall not be Ready for Occupancy as of one (1) year
following the execution of this Lease Agreement, Landlord may elect to
terminate this Lease by giving notice of such election to Tenant. If such
notice is given, this Lease and the rights and obligations of the parties
hereunder shall thereupon cease and terminate without need for the execution
of any further or other instrument, but, if Landlord shall request, Tenant
shall execute an instrument, in recordable form, whereby Tenant releases and
surrenders all right, title and interest which it may have in and to the
Premises under this Lease or otherwise.
21.23 Limitation on Right of Recovery Against Landlord
Tenant acknowledges and agrees that the liability of Landlord under this Lease
shall be limited to its interest in the Celebrity Square and any judgments
rendered against Landlord shall be satisfied solely out of the proceeds of
sale of its interest in the Celebrity Square. No personal judgment shall lie
against Landlord upon extinguishment of its rights in the Celebrity Square and
any judgments so rendered shall not give rise to any right of execution or
levy against Landlord's assets. The provisions hereof shall inure to
Landlord's successors and assigns including any Mortgagee. The foregoing
provisions are not intended to relieve Landlord from the performance of any of
Landlord's obligations under this Lease, but only to limit the personal
liability of Landlord in case of recovery of a judgment against Landlord; nor
shall the foregoing be deemed to limit Tenant's rights to obtain injunctive
relief or
TENANT /s/ MP LANDLORD /s/ DPW
specific performance or to avail itself of any other right or remedy which may
be awarded Tenant by law or under this Lease.
21.24 Force Majeure
In the event Landlord or Tenant shall be delayed, hindered or prevented from
the performance of any act required hereunder, by reason of governmental
restrictions, scarcity of labor or materials, strikes, fire, or any other
reasons beyond its control, the performance of such act shall be excused for
the period of delay, and the period for the performance of any such act shall
be extended for the period necessary to complete performance after the end of
the period of such delay. Notwithstanding anything herein contained to the
contrary, the provisions of this Section 21,24 shall not be applicable to
Tenant's obligations to pay rent or any other sums, monies, costs, charges or
expenses required to be paid by Tenant subsequent to the Commencement Date.
21.25 Air Rights
Notwithstanding anything to the contrary contained in this Lease, Landlord
reserves to itself, its successors and assigns and specifically reserves from
the demise hereunder any rights to use, dispose and/or further develop those
rights commonly referred to as "air rights" or "development rights". Nothing
herein contained shall prevent Landlord from using, selling, leasing or
developing such rights during the Term of this Lease, provided that any such
use, sale, leasing or development shall be accomplished with minimal
inconvenience to Tenant. Unless actual usable space of Tenant is actually
taken by Landlord for its use, sale, leasing or development of such rights,
the rent payable hereunder shall not be reduced or abated during the Term of
this Lease.
21.26 Rules and Regulations
The rules and regulations described in Schedule D attached hereto and made a
part hereof, for the Landlord's Building and the Premises which Landlord may
hereafter from time to time, reasonably adopt and promulgate for the
government and management of the Landlord's Building and Premises are hereby
made a part of this Lease and shall, during the Term thereof be in all things
observed and performed by Tenant and by Tenant's employees and agents.
21.27 (INTENTIONALLY DELETED)
21.28 Hazardous Materials
Tenant warrants that no substances or materials which are or may be governed
or regulated by any governmental authority as hazardous waste, hazardous
substances, pollutants or contaminants will be used on, stored on, or
deposited on the Demised Premises. Further, Tenant warrants that Tenant does
not and will not engage in any activity which would involve the use of the
Premises for the storage, use, treatment, transportation or disposal of any
chemical, material or substance which is regulated as toxic or hazardous or
exposure to which is prohibited, limited or regulated by any Federal, state,
county, regional, local or other governmental authority. Tenant shall, and
does hereby agree to, hold harmless and indemnify Landlord from all actions,
claims, liability, loss and/or damage, including reasonable attorney's fees,
arising from the breach of warranties contained in this Article. These
provisions shall survive the date of termination of the Lease.
21.29 Compliance with the Americans with Disabilities Act
Tenant shall comply with all of the applicable provisions of the Americans
with Disabilities Act and shall not discriminate against anyone on the basis
of disability. The Premises shall be accessible to individuals with
disabilities so that an individual shall have full and equal enjoyment of all
goods and services if the individual does not pose a direct threat to the
health or safety of others. Additionally, all alterations must be made
accessible to people with disabilities to the maximum extent feasible.
TENANT /s/ MP LANDLORD /s/ DPW
In the event any claims, grievances, complaints or concerns are made to the
Tenant alleging a failure to comply with the Americans with Disabilities Act,
the Tenant shall immediately notify the Landlord. Tenant shall indemnify and
hold harmless the Landlord from all matters relating to the Americans with
Disabilities Act including any and all claims, actions, or proceedings
involving the Landlord. The Tenant shall indemnify Landlord for all expenses,
charges, fines, penalties, damages, judgments, attorney's fees, expert fees,
witness fees, compliance costs and expenses, and any other expenses incurred
by the Landlord as a result of any matters associated with the Americans with
Disabilities Act.
21.30 No Inducements or Representations
This Lease (including its exhibits) contains the complete and exclusive
agreement of Landlord and Tenant and Landlord and Tenant acknowledge and agree
that all negotiations, understandings, considerations and representations and
inducements between them have been fully incorporated in this Lease as they
intended. No negotiations, understandings, considerations, inducements or
representations between Landlord and Tenant not incorporated in this Lease
shall be of any force and effect. The provisions of this Lease may be modified
only by a writing signed by Landlord and Tenant and not by any other act or
conduct of theirs. Tenant warrants that it has conducted its own due diligence
as to all matters related to its decision to enter into this Lease and
expressly acknowledges that it has not executed this Lease in reliance upon
any representations by Landlord, its agent for leasing or management purposes,
or any other representative or affiliate of Landlord concerning the occupancy
or continued occupancy of the Celebrity Square, the number of existing or
future tenants in the Celebrity Square, the nature of any business conducted
by any existing tenants or to be conducted by any future tenants of the
Celebrity Square, projected vehicular or pedestrian traffic for the Celebrity
Square, or projected sales for the Celebrity Square or for Tenant or any other
tenants of the Celebrity Square.
Continued Next Page
TENANT /s/ MP LANDLORD /s/ DPW
The parties acknowledge that all Riders, Schedules and other attachments
hereto are a part hereof and are incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Lease Agreement under their respective seals as of
the day and year first above written.
LANDLORD:
XXXXXXXXX & XXXXXX COMPANY, INC.
WITNESSES:
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx X Xxxxxx
----------------------- ---------------------------------
Xxxxxxx X. Xxxxxx
President & CEO
/s/ Xxxxxx Xxxxx Ap /s/ Xxxxxxxx X. Xxxx
----------------------- ---------------------------------
Xxxxxxxx X. Xxxx
Secretary
TENANT:
NEW RIDERS, INC.
d/b/a EASYRIDER CAFE
WITNESS /s/ Xxxxxxx X. Xxxxxxx
Xxx X. -----------------------------
---------------------
(WITNESS #1) Name: Xxxxxxx X. Xxxxxxx
Title: Pres. + CEO
/s/ Xxxxxxx
---------------------
(WITNESS #2)
LANDLORD
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF HORRY )
PERSONALLY appeared before me the undersigned witness who, on oath,
deposes and says that (s)he saw the within-named LANDLORD, by its proper
officers hereunto duly authorized, sign the foregoing document, and that
deponent with the other witness whose name is subscribed above witnessed the
execution thereof.
/s/ Xxxxx X. Xxxxxxx
---------------------
Witness #1
SWORN TO BEFORE ME THIS 20th
day of February, 1996
/s/Xxxxxx Xxxxx AP (L.S.)
------------------
Notary Public for South Carolina
My Commission Expires: September 23, 0000
XXXXXX
XXXXX XX XXXXXXXXXX)
) 'PROBATE
COUNTY OF FRESNO )
PERSONALLY appeared before me the undersigned witness who, on oath,
deposes and says that (s)he saw the within-named TENANT, by its proper
officers hereunto duly authorized, sign the foregoing document, and that
deponent with the other witness whose name is subscribed above witnessed the
execution thereof.
/s/ Xxx X.
-------------------
Witness #1
SWORN TO BEFORE ME THIS 31st
day of January 1997
/s/ XXXXXXX X. XXXX (L.S.)
GENERAL RIDER
The provisions of this General Rider are made a part of the Lease to
which it is attached as if fully set forth in the body thereof. In the event
of a direct conflict between any terms of the Lease and this General Rider,
the terms of this Rider shall control.
1) Amusements and Video Games: Tenant is aware that the Landlord has a
Division within the Landlord's company engaged in the amusement and video
game business. Tenant agrees that should the Tenant elect to place
amusements and/or video games within the Premises, Tenant shall utilize the
Landlord's company to supply such amusements and/or video games
providing that Landlord can supply the type amusements and/or video games
the Tenant desires at competitive rates in the market. Tenant shall notify
Landlord from time to time of its requirements for amusements and video
games or of any offers and the terms thereof from third party suppliers of
amusements and video games and Landlord shall thereafter have a
reasonable time to bid on Tenant's amusement and video game requirements
or match the offers from third party vendors.
2) Motorcycle Parking: Landlord shall cooperate with Tenant in
designating and designing an area in close proximity to Stool Pigeons which
motorcycle parking area is more specifically shown on Schedule A-2 hereto for
use for motorcycle parking for customers of Tenant and others. Tenant shall be
responsible at its sole expense for constructing all improvements to the
motorcycle parking area. Prior to commencing construction, Tenant shall at
its sole cost and expense have prepared and submit to Landlord for its prior
written approval complete plans and specifications for all improvements to be
located on the motorcycle parking area. All signage designating the
motorcycle parking area or directing motorcyclist to the same shall be
subject to the prior written approval of the Landlord and such signage shall
be the sole cost and expense of the Tenant. Landlord agrees to cooperate
with Tenant in erecting such directional signage; however, Landlord reserves
the right in its sole discretion to approve the number and location of said
signs. Furthermore, all such signage and the improvements to the
motorcycle parking area shall be in accordance with all the requirements of
applicable laws, ordinances and codes.
3) Special Events: Tenant may host special events, as determined by
Landlord in its sole discretion (a "Special Event"), from time to time. A
"Special Event" shall be live entertainment consisting of a nationally known
and recognized entertainer, celebrity, comedian, actor, musician, band or
performer or other nationally known and recognized act of the type for which
a fee, door charge, minimum charge or similar charge can be charged and
collected. To obtain Special Event status, the Tenant shall notify Landlord in
writing at least seven (7) days prior to such event requesting the Special
Event status for the date(s) and time(s) specified therein. The notice shall
describe the event with specificity and list the names of the entertainers,
celebrities, performers and/or acts for such Special Event. Landlord shall
have the right to approve or disapprove the proposed Special Event, in its
sole discretion. All revenues to Tenant related to a Special Event shall be
included in Gross Sales as defined in Section 5.5. Tenant shall be
responsible for negotiating and paying all admissions taxes or similar taxes
payable as a result of such Special Event.
Cross-Default. Landlord and Tenant further agree that a default under
this Entertainment Rider shall be deemed a default under the Lease.
LANDLORD:
XXXXXXXXX & XXXXXX COMPANY, INC.
Initials /s/
TENANT:
Initials
ENTERTAINMENT RIDER
In order to promote the entertainment and celebrity theme of Celebrity
Square and Broadway at The Beach, each Anchor Tenant In Celebrity Square shall
offer to Its patrons top quality, live entertainment throughout the term of
the Lease as set forth herein.
Live Entertainment. Live entertainment shall be top quality
entertainment compatible with the overall theme of Celebrity Square and
Broadway at The Beach and shall include musicians, bands, celebrity
appearances and known performers, and such other forms of live entertainment
as Landlord shall approve in its sole discretion. In no event shall any such
entertainment constitute "adult" entertainment as defined In Schedule "F"
attached hereto. Disc jockeys, televisions, juke boxes and similar types of
audio-video equipment shall not be deemed live entertainment. Tenant shall
provide such live entertainment at least [n/a days per Rental Year].
Special Events. Anchor Tenants may host special events, as determined by
Landlord in its sole discretion (a "Special Event"), from time to time. A
"Special Event" shall be live entertainment consisting of a nationally known
and recognized entertainer, celebrity, comedian, actor, musician, band
or performer or other nationally known and recognized act of the type for
which a premium fee can be charged and collected. If any Anchor Tenant
sponsors a Special Event, the General Admission Tickets as set forth in the
Admissions Rider will not be applicable to such Anchor Tenant's Night Club
during the date(s) and time(s) of such Special Event, For admission into the
Anchor Tenant's Night Club (for an amount greater than that charged for a
General Admission Ticket), hosting a Special Event, patrons must purchase
Special Event Tickets as set forth in the Admissions Rider. Such Special Event
Tickets shall be sold at a premium fee and shall admit patrons only into the
Night Club of the Anchor Tenant hosting the Special Event. General Admission
Tickets may still be purchased but will exclude the Night Club hosting the
Special Event. To obtain Special Event status, the Anchor Tenant hosting such
event shall notify Landlord In writing at least fifteen (15) days prior to
such event requesting the Special Event status for the date(s) and time(s)
specified therein. The notice shall describe the event with specificity and
list the names of any and all nationally known and recognized entertainers,
celebrities, performers and/or acts for such Special Event. Special Event
Ticket sales shall be shared between such applicable Anchor Tenant and
Landlord as set forth in the Admissions Rider.
Entertainment Budget. During each Rental Year, Tenant shall expend at
least [n/a Dollars] on quality live entertainment as required herein (the
"Entertainment Expense"). The Entertainment Expense shall be adjusted
annually, as of the first day of each Rental Year during the Term, in the same
proportion as the Consumer Price Index most recently reported as of such
adjustment date bears to the Consumer Price Index reported for the first full
calendar month of the Term. Tenant shall preserve original or duplicate books
and records at such Tenant's Notice Address which shall disclose all
information required to determine Tenant's live entertainment expenditures.
Upon advance notice, Landlord, its agents and accountants, shall have the
right to audit such books and records. If the audit discloses noncompliance by
Tenant for any Rental Year in question, Tenant, in addition to the remedies
contained in this Lease, shall pay to Landlord a sum equal to Landlord's cost
of the audit, which sum shall be deemed to be Additional Rental, plus as
liquidated damages, a sum equal to the amount by which Tenant's actual
expenditures for live entertainment as required above shall be less than
Tenant's required minimum Entertainment Expense for such period, plus interest
at the Default Rate calculated for the full Rental Year plus such additional
time thereafter until the amounts are paid In full. Landlord shall have the
right to off-set such amounts against Tenant's proportionate share of the
Shared Fees for all ticket sales and deduct those amounts from the next
payment(s) due to Tenant under the provision of the Admissions Rider. Of such
amounts paid by Tenant or off-set by Landlord, Landlord shall retain the cost
attributable to the audit and interest on the amounts due, calculated at the
Default Rate. The remaining amount, representing the difference between the
Entertainment Expense minimum requirement amount and the actual amount spent
by Tenant on live entertainment for such period shall be shared as follows:
(1) forty percent (40%) shall be deposited Into the Promotion and Advertising
Fund for Celebrity Square for the benefit of all tenants; (ii) forty percent
(40%) shall be shared equally between the other Anchor Tenants which met the
Entertainment Expense minimum requirements for such period; and (iii) twenty
percent (20%) shall be retained by Landlord.
Gross Sales from Entertainment. In addition to the items set forth in
Section 5.5 of the Lease, gross sales shall also include all revenue, cover
charges, admission fees, door charges and similar charges together with all
revenue, proceeds from entertainment, special events and the like.
Notwithstanding the aforesaid, gross sales shall not include the proceeds of
sales from charity events to the extent that such proceeds are donated by
Tenant to qualified Internal Revenue Service approved charitable organizations
within sixty (60) days of the event.
Incorporation. Landlord and Tenant agree that this Entertainment Rider to
the Lease is incorporated herein and made part and parcel of the Lease between
Landlord and Tenant to which is attached.
Cross-Default. Landlord and Tenant further agree that a default under
this Entertainment Rider shall be deemed a default under the Lease.
LANDLORD: XXXXXXXXX & XXXXXX COMPANY, INC.
Initials /s/
-----
TENANT:
NEW RIDERS, INC.
---------------
Initials
ADMISSIONS RIDER
Celebrity Square at Broadway At The Beach is a distinct area established
by Landlord upon which will be located various night club venues and other
enterprises that would complement its entertainment theme (collectively,
"Night Clubs" or individually, "Night Club"). A primary purpose for the
establishment of the various Night Clubs is to promote Celebrity Square to a
broad range of prospective patrons and thereby benefit all tenants located in
Celebrity Square. Celebrity Square will consist of a number of Anchor Tenants
and certain other smaller compatible tenants. An "Anchor Tenant" in Celebrity
Square shall be defined as a Night Club within the Celebrity Square area that
would typically charge a cover charge or admission fee and shall not include
any restaurant.
Admission Tickets. Entrance to each Anchor Tenant Night Club will be only
by an admission ticket purchased by the prospective patron. The exclusive
sales booth for these admissions tickets will be located as shown on Schedule
"A" or as may be determined by Landlord from time to time in its discretion.
The ticketing office(s) in Celebrity Square shall be constructed and operated
by Landlord at Landlord's expense. Landlord shall have the sole and exclusive
right to sell, solicit, distribute, control and account for admissions fees.
Three (3) classes of tickets will be offered:
(1) General Admission: A general admission ticket may be purchased that
will permit each individual patron to enter all Night Clubs in Celebrity
Square, except those hosting a Special Event (as defined in the Entertainment
Rider) ("General Admission Ticket"). In the event of a Special Event, the
General Admission Ticket price may be reduced in an amount as determined by
Landlord.
(2) Single Admission: At the patron's option, a ticket may be purchased
which will allow admission to only one specific Night Club ("Single Admission
Ticket"). All such Single Admission Tickets shall be purchased at the same
price, as determined by Landlord.
(3) Special Event: If an Anchor Tenant sponsors a Special Event (as
defined in the Entertainment Rider), a patron may purchase a special event
ticket which will allow admission into the Anchor Tenant Night Club hosting
the Special Event only ("Special Event Ticket"). However, at the option of any
Anchor Tenant Night Club, patrons with a Special Event Ticket may be admitted
into that Anchor Tenants Night Club, for that date(s) only, without purchasing
any additional Admission Ticket (such Anchor Tenant shall not be entitled to
any portion of the Special Event Ticket revenues).
Tenant covenants and agrees that it will not permit free or discounted
admissions at its Premises. Admission shall be only by ticket purchased
pursuant hereto.
Tenant Audits; Penalties. Tenant acknowledges that all Anchor Tenants
participating in the ticketing activities described in this Admissions Rider
depend upon each Anchor Tenant complying with all rules and regulations
established herein or pursuant hereto. To enforce the provisions of this
Admissions Rider, Landlord may establish such audit programs as are reasonably
designed to insure the compliance of the Anchor Tenants with the provisions
hereof. If Tenant violates the admissions program, Tenant shall pay a penalty
to Landlord of Five Hundred and 00/100 Dollars ($500.00) for the first
violation, One Thousand and 00/100 Dollars ($1,000.00) for the second
violation, and Two Thousand and 00/100 Dollars ($2,000.00) for the third
violation. The Landlord may set-off against Tenants proportionate share of the
Shared Fees (as defined herein) and deduct such penalty from the next payments
due Tenant under the provisions hereof. For more than three (3) violations, in
addition to collecting the maximum penalty, Landlord, at its option, may
terminate this Lease upon thirty (30) days written notice to Tenant.
Association. Landlord shall establish for purposes of making
recommendations regarding admission fee pricing, group discount programs,
local programs, and any other pricing structures, the Celebrity Square
Association ("Association"). The Association shall consist of one (1)
representative of the Landlord and one (1) representative from each Anchor
Tenant in Celebrity Square. The power and the authority of the Association
shall be limited to an advisory capacity which will assist the Landlord in
operating Celebrity Square to its optimal profitability by making
recommendations, which recommendations shall not be binding on Landlord.
Landlord shall have final approval on the pricing and packaging of all
admission fees to Celebrity Square. Landlord may elect to establish a limited
free or reduced admission program which will be evenly administered as to all
tenants of Celebrity Square. Landlord may solicit the advise of the
Association in formulating such policy.
Revenue Sharing. Tenant acknowledges that the rental charged by the
Landlord for the Premises anticipates the Landlord's sharing of revenues from
the ticket sales. The receipts of the sale of the admissions tickets shall be
shared as follows:
(1) General Admission: For General Admission Ticket sales, Landlord shall
retain twenty percent (20%) of gross receipts, and the remaining gross
receipts shall be shared ("Shared Fees") by the Anchor Tenants in Celebrity
Square (except for any Anchor Tenant hosting a Special Event, as set forth
below). Tenant shall receive on a bi-weekly basis, Tenant's proportionate
share of the Shared Fees collected. Tenant's proportionate share of Shared
Fees for any time period shall be computed by multiplying the amount of such
Shared Fees by a fraction, the numerator of which shall be, Tenant's Floor
Area and the denominator of which shall be Anchor Tenants' Floor Area. The
total square footage of all Anchor Tenants shall be known as the "Anchor
Tenants' Floor Area".
(2) Single Admission: As for Single Admission Ticket sales, the
applicable Anchor Tenant shall be entitled to eighty percent (80%) of the
gross receipts thereof, and Landlord shall retain twenty percent (20%). No
other tenants shall share in the proceeds derived from such Single Admission
Tickets.
(3) Special Event: As for Special Event Ticket sales, the applicable
Anchor Tenant shall be entitled to eighty percent (80%) of the gross receipts
thereof, and Landlord shall retain twenty percent (20%). No other tenants
shall share in the proceeds derived from such Special Event Tickets. Any
Anchor Tenant hosting a Special Event shall be entitled to receive its
proportionate share of the proceeds from the sale of the Special Event Tickets
only and shall not be entitled to receive any portion of the Shared Fees for
the General Admission Tickets attributable to the date(s) of any such Special
Event.
Landlord Audits. An independent accounting, auditing company approved by
Landlord and the Association shall be retained to review and audit all
procedures and accounting performed by Landlord and operations of the
ticketing office sales. For the purpose hereof, gross receipts shall be all
receipts for the sale of General Admission Tickets, Single Admission Tickets
or Special Event Tickets, respectively, less any and all admissions taxes,
sales taxes, and other similar taxes, fees or assessments.
No Liability of Landlord. It is understood and acknowledged by Tenant
that in selling such admissions tickets, Landlord does not undertake, in any
form or fashion, participation in the operation of Tenant's business. Further,
Landlord is not responsible nor will assume or be construed as assuming any
responsibility for identifying any person whose admission to Tenant's Night
Club might be inappropriate by reason of any factor including, but not limited
to, patron's age or physical condition (e.g., intoxication). Tenant
acknowledges that the admission and policing of its Night Club is its sole
responsibility. Tenant shall indemnify, defend and hold harmless Landlord, its
officers, directors, agents, servants and employees from and against any and
all claims, actions, liabilities, losses, demands, expenses, and attorneys'
fees and costs which relate to our arise from the admission of patrons to
Celebrity Square in any respect whatsoever, including, without limitation, any
of the foregoing, which relate to or arise from the consumption of any
alcoholic beverage in Celebrity Square.
Incorporation. Landlord and Tenant agree that this Rider to the Lease is
incorporated herein and made part and parcel of the Lease between Landlord and
Tenant to which is attached.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this General Rider under their respective seals as of
the day and year first above written.
LANDLORD:
XXXXXXXXX & XXXXXX, COMPANY, INC.
Initials /s/
TENANT:
NEW RIDERS, INC.
d/b/a EASYRIDER CAFE
Initials /s/
