Loading...
RESOLUTION 91-20223 RESOLUTION NO. 91-20223 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH TO AUTHORIZE THE MAYOR AND THE CITY CLERK TO EXECUTE A CONSENT OF LESSOR TO A SUBLEASE AGREEMENT BETWEEN SPECIALTY RESTAURANTS CORPORATION AND SOUTH POINTE HOSPITALITY, INC. DATED NOVEMBER 8, 1990. WHEREAS, on or about February 8, 1985, the City of Miami Beach and Specialty Restaurants Corporation entered into a lease for premises situated in South Pointe Park for a restaurant commonly known as Crawdaddy's Restaurant (the "Lease") ; and WHEREAS, Specialty Restaurants Corporation has requested the City to approve a sublease of the restaurant to South Pointe Hospitality, Inc. with the understanding that Specialty Restaurant Corporation shall continue to be liable to the City in all respects under the terms and conditions of the lease dated November 8, 1985. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Clerk are hereby authorized to execute a Consent of Lessor to the sublease agreement between Specialty Restaurant Corporation and South Pointe Hospitality, Inc. dated November 8 , 1990, provided that the Lease shall continue in full force and effect and Specialty Restaurants Corporation shall continue to be liable to the City in all respects under the terms and conditions of the lease dated November 8 , 1985. PASSED and ADOPTED this 9th day of January , 1991. ATTEST: Z414;c7 City Clerk PNB: lm FORM APPROVED LEGAL DEPT. Die . SUBLEASE AGREEMENT THIS SUBLEASE AGREEMENT (hereinafter referred to as "Sublease" ) made and executed this 1,/Zday of November, 1990, by and among Specialty Restaurants Corporation, a California corporation, (hereinafter referred to as "Sublessor" ) , and South Pointe Hospitality, Inc. , a Florida corporation (hereinafter referred as "Sublessee" ) , and Mr. and Mrs. Arthur Forgette, individuals (hereinafter referred to as "Guarantors" ) . RECITALS: WHEREAS, Sublessor is a Lessee under that certain Lease Agreement (hereinafter referred to as "Master Lease" ) , dated the 8th day of February, 1985, as amended, between Sublessor as Lessee and The City of Miami Beach, a municipal corporation, as Lessor, of certain premises situated at South Point Park, No. 1 Washington Ave. , Miami Beach, Florida, and commonly known and described as the Crawdaddy' s Restaurant, and more particularly described in Exhibit "A" (Master Lease) attached hereto and by this reference is incorporated by reference as though set forth in full at this point; WHEREAS, Sublessor has constructed certain buildings structures and improvements on the leasehold g ' estate and has installed in or on the improvements certain furniture, fixtures, and equipment; WHEREAS, Sublessor desires to sublease to Sublessee the premises commonly known as the Crawdaddy' s Restaurant facility; and, WHEREAS, Sublessee shall purchase from Sublessor certain inventories from the subleased premises. NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein contained, Sublessor does hereby sublease to Sublessee the premises under the following terms, covenants and conditions hereinafter set forth and Sublessee covenants, as a material part of the consideration of this Sublease, to keepand perform each and all of said terms, covenants and conditions by it to be kept and performed. ARTICLE I. THE SUBLEASED PREMISES. A. Sublessor hereby demises and subleases to Sublessee, and Sublessee subleases and takes from Sublessor, at such monetary consideration and upon the terms and conditionst hereinafter set forth, the restaurant facility commonly known as the Crawdaddy' s Restaurant (herein aftar referred to as the "Subleasedy Premises" ) and defined in Exhibit "A" attached herein and by this reference incorporated herein. CrawMiami.sub 1 B. All improvements made by Sublessee during the sublease term, and all additions, alterations and replacements to, on or of improvements mprovements shall become and remain a part of the Subleased Premises, subject to the use and occupancy of Sublessee hereunder, and none of the same shall be incumbered, transferred, removed or altered, except as otherwise provided in this Sublease. ARTICLE II . SUBLEASE TERM. The term of this Sublease shall commence upon the date of occupancy by the Sublessee, and terminate midnight on the 8th day of February 2004, unless extended by prior written agreement between Sublessor and Sublessee, which written agreement must be entered into on or before December 8, 2003. ARTICLE III. RENT. A. Rental Commencement Date. The Rental Commencement Date shall be the date of commencement of operations of the Subleased Premises. B. Monthly Rent. Sublessee covenants and agrees to pay to Sublessor monthly rent for the restaurant facility according to the following g 1 . Minimum Rent. a. Effective as of the Rental Commencement Date and until June 27, 1991, the Minimum Monthly Rent shall be Seventeen Thousand Dollars ($17, 000) per month; however, the Minimum Monthly Rent for November 13, ] 990, until November 22 1990, shall be prorated; ' b. Minimum Monthly Rent from June 28, 1991 through June 25, 1992, shall be Twenty Thousand Dollars ( $20, 000) per month; c. From and after June 26, 1992, the Minimum Monthly Rent shall be calculated by taking percent - seventY (75%) of the total rent paid in the prior twelve montheriod and d dividing said sum by twelve ( 12) . Said Minimum MonthlyRent calculation shall be adjusted annuallythereafter; however, in no event shall the Minimum Monthly Rent be less than the amountaid in the prior twelve ( 12) month period. p 2. Percentage Rent. a. Effective as of the Rental Commencement Date and until December 27, 1991, Sublessee covenants and agrees to pay to Sublessor eight percent (8%) of all conducted r gross sales on or from the Subleased Premises or the Minimum Monthly Rent, as stated above, whichever is greater; CrawMiami.sub 2 b. From December 28, 1991, through June 27, 1991, Sublessee agrees to 9 pay to Sublessor ten percent ( 10) of all gross sales conducted on or from the Subleased Premises or the Minimum Monthly Rent, as stated above, whichever is greater; c. From June 28, 1991, and until June 25, 1992, Sublessee covenants and agrees to pay to Sublessor twelveercen p t ( 12%) of all gross sales conducted on or from the Subleased Premises or the Minimum Monthly Rent, as stated above, whichever is greater; d. From June 26, 1992, and until June 24, 1993, Sublessee covenants and agrees to g pay to Sublessor twelve and one half percent ( 12. 5%) of all gross sales conducted on or from the Subleased Premises or the Minimum Monthly Rent, as stated above whichever is greater; and, ' e. From and after June 25, 1993, Sublessee covenants and agrees to pay to Sublessor thirteen percent130 all gross sales conducted on percent ( 13% ) of or from the Subleased Premises or the Minimum Monthly Rent, as stated above, whichever isreater. g • 3. Minimum/Percentage Rent. It is agreed between Sublessor and Sublessee that any renegotiation in Minimum Rent or Percentage Rentursuant to the terms and provisions of the Master Leasep over the amounts to Sublessor at the execution date of this Sublease shall be assumed and paid by the Sublessee. 4. Additional Rent. It is agreed between Sublessor and Sublessee that Sublessee shall pay to Sublessor as Additional Rent an amount to fifty equal percent ( 50%) of any and all net profit ( "PBT" ) generated from the Subleased Premises. In calculatingg PBT, there shall be no deduction for a management fee, auto leasingtravel membership fees or dues and an y other , expense, non-operating expense, and the allowed salary expense for the unit General Manager shall not be greater than Forty-Two Thousand Dollars ($42, 000) . Only reasonable and legitimate expenses can be deducted operations. This Additional Rent shallagainst not be included in calculating the annual Minimum Monthly Rent seventy ° adjustment. percent t ( 70 0) 5. Payment of Rent. a. Minimum Monthly Rent shall be paid monthlyin advance and Percentage Rent due above the Minimum paid by the 15th dayof the followingRent shall be month. The additional rent ( 50% PBT) shall be paid by the fifteenth ( 15th) dayfollowing ollowing the end of each quarter of the Sublease Term; b. Sublessee shall be required to use, in CrawMiami.sub 3 calculating Minimum and Percentage Rent, the same reporting period that coincides with Sublessor' s quarterly and fiscal year end. The quarterly reporting period is based upon a four (4) week/four (4) week/five ( 5 ) week period and the fiscal year ends on the fourth Thursday of June. c. Sublessee acknowledges that this Sublease Agreement is net/net/net to Sublessor; however, Sublessor shall remain liable for the payment of the rent obligation due to the Master Lessor, except any increases in Percentage or Minimum Rent under the Master Lease Agreement attached hereto as Exhibit "A" and by this reference incorporated herein; d. On or before the 15th day of the month following the end of each month of the Sublease Term, Sublessee shall compute the amount of Sublessee ' s Gross Receipts, as defined herein, for such preceding month and shall prepare a statement certified by an officer of Sublessee, in detail satisfactory to Sublessor, setting forth said Gross Receipts and any and all minimum and percentage amounts due with respect to such month and shall deliver to Sublessor such statement together withY a ment in p full of the rental provided for therein; e. The Percentage Rent and Additional Rent shall be computed on a cumulative annualized basis with anyresulting g credit due at the end of the year being paid either directlyto the Sublessee or Sublessee shall begiven a credit against future Percentage Rental payments; and, f. On or before the fifteenth ( 15th) day of the month following the end of each quarter of the Sublease Term, Sublessee shall compute any and all net "PBT"rofit P ( "PBT" ) generated from the Subleased Premises, as defined herein, for suchrecedin g quarter and shall prepare a statement certifiedp f by an officer of Sublessee, in detail satisfactory to Sublessor, settingforth said PBT generated from the Subleased Premises, if any, and shall thereafter deliver said statement to Sublessor. 6. Gross Sales. The term "Gross Sales" as used herein means the aggregate amount of all receipts, charges, revenues, income and other sums received, regardless of the type or nature, whether in cash or on credit, for all food, beverage, alcoholic beverage and other merchandise sold or servicesperformed g in, at or from any part of the Subleased Premises or derived from the use of the Subleased Premises as provided for in this Sublease, bySublessee whether under anyone acting on Sublessee ' s behalf, a lease, license or concession from Sublessee or otherwise. "Gross Sales" shall also include the gross receipts from all mechanical or other vending devices placed in or on the Subleased Premises bySublessee or under any authority from Sublessee. Gross Sales shall include income from games subleased by Sublessee. There shall be further included within "Gross Receipts" any additional sums required to gross be included in the calculation of q g s receipts or gross sales CrawMiami.sub 4 upon which a percentage rent payable to Sublessor under the Master Lease is computed. Notwithstanding the foregoing, the term "gross receipts" as used herein shall not include, or, if included, there shall be deducted therefrom to the extent of such inclusion, the amount of any of the following, provided that such amounts are also excluded from any definition of gross sales or gross P receipts upon P which percentage rent payable by Sublessor under the Master Lease is computed: a. Sales tax, gross receipts taxes and other similar taxes now or hereafter imposed upon the sale of food, merchandise or services, but only if collected separately from the selling price of food, merchandise or services and collected from customers; b. Receipts from the sale of waste or scrap materials resulting from Sublessee ' s operations on the premises; c. The cost or value of meals or discounts given to employees; for which no payment is received payroll deduction made and no other consideration is received by Sublessee. d. The cost or value of food and beverage used for entertainment and promotion purposes; and e. The amount of any gratuities given by patrons to employees of Sublessee. 7. Interest and Late Charges. If Sublessee shall fail to pay, within ten ( 10) days, from the date any monetary obligations are due anda abl hereunder, such unpaid amounts shall bear interest at ten P y t percent ( 10%) on a basis of a 360 day year and actual days elapsed.Y p Said prime rate shall be equivalent to the prime rate announced publicl yfrom time to time by Sublessor' s principal bank. Sublessee hereby acknowledges that late payment by Sublessee to Sublessor of rent and other sums due hereunder will cause Sublessor to incur costs not contemplated by this lease, the exact amount of which will be extremely difficult to ascertain. Such costs may include, but are not limited to, processing and accounting charges, s attorne ' fees and late charges which may be imposed on SublessorY P by the terms of the Master lease. Accordingly, if any installment of rent or any other sum due from Sublessee shall not be received bySublessor within fifteen ( 15) days after such amount t shall be due, Sublessee u shall, in addition, pay to Sublessor a late charge computed follows: five percent (5%) of such g p as overdue installment or sum. The parties hereby agree and acknowledge that such late charge represents a fair and reasonable estimate of the g costs Sublessor will incur by reason of late payment by Sublessee. Acceptance of any such late charge by Sublessor shall in P no event constitute a waiver of Sublessee's default with respect to such overdue amount, nor prevent Sublessor from exercising any of the other rights and Failure to enforce granted or reserved hereunder. g this provision for any overdue payment shall in no event constitute a CrawMiami.sub 5 waiver of Sublessor' s rights to enforce this provision with respect to any subsequent overdue payment. p 8. Records and Accountings. During the term hereof, Sublessee shall perform each of the following: a. Sublessee shall keep, and shall require its subtenants, licensees and concessionaires, if any, to keepand maintain at the Sublessee 's corporate offices, or at such other place as Sublessor may approve in writing, on a fiscal year basis, ending on the fourth Thursday of June, complete and accurate books of account and records of, but not limited to, all purchases and receipts of merchandise, inventories and all sales and other transactions from which Sublessee ' s gross receipts at, upon or from the Subleased Premises can be determined. p Sublessor and Master Lessor, and their agents and employees shall have the right at any and all reasonable times duringregular ge g business hours to examine and inspect all of said books, records and accounts, includingall sales tax reports and federal and state income tax returns pertaining to that business conducted in, upon or from said premises, and Sublessee 's inventory for the purpose ofinvestigating and verifying the accuracy of any statement of gross receipts and operating income (PBT) as hereinabove provided for. Sublessee shall keep for at lease three (3 ) years followingthe of each calendar year all original sales end g books and records as would normally be required to be kept and examined by an independent certified public accountant in accordance withp generally accepted accounting principles. b. The Sublessee shall be required to submit to Sublessor on or before the ninetieth ( 90th) day followingthe end of the fiscal year, a certified audit of Sublessee ' s gross receipts and expenses. Said certified audit shall be prepared Kerr, and Forster, at Sublessee 's p by Pannell, expense or by such other CPA firm approved by Sublessor, which approval shall not be unreasonably withheld. c. The acceptance by Sublessor of payments of percentage rental and operating income (PBT) shall be without t out prejudice to Sublessor' s right to examine Sublessee ' s books and records of its gross receipts, operating incomePBT ( ) , and inventories of merchandise on the Subleased Premises in order to verify the same. Upon a yearly basis, and upon no less than ten ( 10) days prior written notice to Sublessee, Sublessor may a special audit or limited review to cause be made of Sublessee ' s business affairs and records relating to the Subleased Premises, for any period covered by this Sublease within three3 ( ) years of the date of such notice. Such audit or limited review shall be made by an independent certified public accountant selected by Sublessor, from one of the following firms: Arthur Anderson & Co. ; Coopers & Lybrand; Ernst & Ernst; Haskins & Sells; Peat, Marwich & Mitchell; Price Waterhouse & Co. ; Pannell, Kerr & Forster; and Touche, Ross & Co. The results of any such special audit or CrawMiami.sub �j limited reviewperformed shall be binding on the parties, and except as provided in Subparagraph (C) below, the cost of such audit shall be paid and divided equally between Sublessor and Sublessee. d. If it shall be determined as a result of such audit or limited review that there has been a deficiency in the payment of any monetary obligations provided for herein, then such deficiency shall become immediately due and payable together with interest at the rate of ten percent ( 10%) , as defined in Article III, Section 7, from the date on which said payment should have been made. If the audit or limited review discloses a deficiency for the period covered by the audit or limited review in excess of three percent (3%) of the amount which the independent certified public accountant determines should have been paid for said period, Sublessee shall also pay toSublessor, in addition to such sums, the entire cost of said audit or limited review. If the audit or limited review discloses a deficiency for the period covered by the audit or limited review in excess of five percent ( 5%) of the amount which the independent certified public accountant determines should have been paid for such period, Sublessor may, in addition terminate this Sublease. ' 9. Payment. The monetary obligations herein provided shall be paid without offset or deduction by Sublessee to Sublessor in such coin and currency of the United States as at the time ofY a ment p is legal tender for public and private debts, except asp rovided by separate agreement of the parties. ARTICLE IV. TAXES. A. Payment by Sublessee. In addition to the monetary obligations herein before and hereafter provided, Sublessee shall, commencing on the date of occupancy through the termination date of this Sublease, as provided for in Article II hereof, pay and discharge ( as the same shall become due and payable) all taxes, assessments, levies, license fees and other governmental imposition, chargeses or penalties, general, special, ordinary, extraordinary and otherwise of every kind and character which are levied, charged, assessed or imposed during the term hereof against the Subleased Premises and all interests therein and all improvements and otherro ert p p Y thereon, including personal property, whether owned by Sublessor, Sublessee or the Sublessor under the Master lease, or to which either of them may become liable in relation thereto by virtue of the terms of the Master lease or otherwise includingwithout limitation, any tax which mayat any time be levied or imposed upon rentals under this lease or otherwise in respect of the Subleased Premises, which is not in the nature of a net income or excess profits tax to Sublessor (collectively, all of the foregoing are g g referred to as "Impositions" ) , not later than thirty (30) days Y prior to the delinquency date thereof. Sublessee hereby agrees to CrawMiami.sub 7 protect and hold harmless Sublessor, Sublessor and the lease Premises and all improvements in, on or about the same from all liability for any and all such Impositions, together with any interest, penalties or other sums thereby imposed, and from any sale or other proceeding to enforce payment thereof. During said term Sublessee shall cause all Impositions levied upon or imposed on any personal property situated in, on, or about the Subleased Premises to be levied or assessed separately form said leased Premises and not as a lien thereon, and Sublessee shall be responsible for and shall pay prior to delinquency all such Impositions levied, imposed or assessed during the lease term. Sublessee shall give written notice to Sublessor of payments of all Impositions five ( 5 ) days after the date that Sublessee makes such payments and shall, upon written request of the Sublessor, furnish a copy of the receipted tax bill or other proof of said payment, to the Sublessor. B. Proration. All impositions for the first and last full years of the term of this Sublease shall be prorated between the Sublessor and Sublessee on the basis of the tax fiscal years involved. C. Payment by Sublessor. In the event that Sublessee fails to pay any Imposition required to be paid by it hereunder, Sublessor may at its option, pay the same, together with all penalties P ' and interest which may have been added thereto by reason of any delinquencyor default. Any such amounts so paid bythe Sublessor, together with interest thereon at the rate of ten percent ( 10%) as defined in Article I I I Section 7 from the date of payment ' by Sublessor until paid by Sublessee, shall become immediately due and payable as additional rent by the Sublessee to the Sublessor. Any such payment shall not be deemed to be a waiver of any other rights of Sublessor hereunder or to create in Sublessor the obligation to make anyfuture payments. ARTICLE V. UTILITIES. A. Payment by Sublessee. During the term hereof, Sublessee shall pay all es for water charges ( and distribution thereof) , sewage, gas, electricity, heat, telephone service, air conditioning, garbage removal, and all other utilities and services supplied to the Subleased Premises, regardless of the kind or nature, directly to the suppliers of such services. If any such charges are not paid when due, Sublessor shall have the right, but not the obligation, to pay the same, and any amounts so paid by Sublessor, together with interest thereon at the rate of ten ( 10%) as defined in Article III, Section 7 shall thereupon become due to Sublessor from Sublessee. ' B. Utility Contracts and Agreements. CrawMiami.sub 8 Sublessee shall not enter into any contract or agreement relating to the Subleased Premises with any city, county or any governmental agency or body or public utility with reference to sewer lines or connections, water lines or connections, irrigation lines or connections, street improvements, g p s, including but not limited to, curbs, gutters, parkways and street lightingor utility connections, lines or easement g g� s, without the prior written consent of Sublessor, nor shall Sublessee alter or relocate anyof the foregoing without Sublessor' s prior written consent. ARTICLE VI. USE AND SUBLESSEE' S OPERATIONS. A. Use. During the Sublease Term, Sublessee shall use and occupy the Subleased Premises and all buildings, structuresother g and other improvements and facilities constructed and installed thereon only as a first-class restaurant, banquet facility, and cocktail lounge and no other purpose unless expressly consented to by Sublessor in writing at Sublessor' s sole discretion. Sublessee is hereby granted for the Sublease Term the non-exclusive and non-assignable right to operate the restaurant facility on the Subleased Premises under the name and style without any additional royalty for its use. Y Y B. Continuous Operations. Sublessee hereby covenants and agrees during the Sublease Term to conduct and operate the Subleased Premises (restaurant facility) for a minimum of three hundred (300) dayser year for - lunch and three hundred sixty-five (365) p Y days for dinner. The normal business hours for the Subleased Premises (restaurant facility) shall be similar to other first-class restaurants in the immediate area. ARTICLE VII. MAINTENANCE, REPAIR AND ALTERATION. A. Net Sublease. This Sublease is a "net" Sublease and it is the intent that, except as expressly provided to the contrary, all expenses arising in connection with the upkeep, repair, maintenance alteration or operation of the Subleased Premises shall be h, e the responsibility of the Sublessee. B. Maintenance, Repair and Alteration of the Subleased Premises. Sublessor shall incur no expense, nor have any obligations of any kind whatsoever in connection with the maintenance, repair or alterations of the Subleased Premises nor any other improvements required to be maintained, repaired or altered by Sublessee hereunder, and Sublesseep expressly waives the benefit of any statute now or hereafter in effect which would CrawMiami.sub 9 otherwise afford Sublessee the right to make repairs or alterations at Sublessor's expense or to terminate this Sublease because of Sublessor' s failureto keep the Subleased Premises in good order, condition, and repair. It is specifically agreed between Sublessor and Sublessee that Sublessee' s obligation to keep the Subleased Premises in first class order, condition and repair extends to every part of the improvements constituting a part of the Subleased Premises, including, without limitation, all plumbing, heating, air conditioning, ventilating, electrical and lighting facilities and equipment, fixtures, interior and exterior walls, ceiling, roof, floors and floor coverings, windows doors, plate glass, entrances landscaping and vestibules located within the Subleased Premises. Sublessee shall paint the interior and exterior walls as often as may be requiredto keep the Subleased Premises neat and attractive, but shall obtain Sublessor's prior written approval in the event paint colors will be changed which approval shall not be unreasonably withheld. C. Surrender of Subleased Premises. On the last day of the term hereof, or any sooner termination, Sublessee shall surrender the Subleased Premises and Equipment to Sublessor in good order and repair, broom clean, ordinary wear and tear excepted. Sublessee shall repair any damage g to the Subleased Premises occasioned by the removal of any trade fixtures, furnishings and equipment owned by Sublessee, which repair shall include the patching and filling of holes and repair of structural damage. Any property not removed from the Subleased Premises within thirty (30) days after the time Sublessee vacates the Subleased Premises shall become the property of Sublessor. D. Sublessor' s Right to Maintain. In addition to any other rights and remedies under this lease, or provided by law, Sublessor shall at its option, in the case of a default or breach of any covenant contained in this ARTICLE VII, have the right to enter the Subleased Premises, or any portion thereof, and perform or haveperformed, . any maintenance, repair or alteration watering or husbandry contemplated under this Article and required to be performed by Sublessee and in such event Sublessor' s cost of doing or procuring the same, together with interest thereon at the rate of ten ( 10%) percent as specified in Article III, Section 7, shall be at once due and payable from Sublessee to Sublessor as additional rent under this Sublease. ARTICLE VIII. INDEMNITY AND EXCULPATION. A. Indemnity. Neither Sublessor nor Master Lessor shall be liable for, and Sublessee hereby waives, all claims against Sublessor and Master Lessor for damage to any property, or injury, illness, or death of any person in, upon, or about the Subleased Premises and/or the real property arising at any time and from any cause whatsoever other than damages proximately caused by reason of the CrawMiami.sub 10 willful misconduct of Sublessor or its agents and employees. Further, Sublessee shall indemnify, defend, and protect Sublessor and Master Lessor and hold Sublessor and Master Lessor harmless from any and all loss, cost, damage, expense and liability (including without limitation, court costs and reasonable attorney's fees) incurred in connection with or arising from any cause, on or about the Subleased Premises, including, without limiting the generality of the foregoing: (i) any default by Sublessee in the observance or performance of any of the terms, covenants or conditions of this Sublease on Sublessee's part to be observed or performed; (ii) the use or occupancy of the Subleased Premises by Sublessee or any person claiming by, through or under Sublessee; (iii) the condition of the Subleased Premises from any cause whatsoever; or (iv) any acts, omissions or negligence of Sublessee or any person claiming by, through or under Sublessee, or of the contractors, agents, servants, employees, visitors or licensees of Sublessee or any such person, in, on or about the Subleased Premises or the real property, including without limitation, any acts, omissions or negligence in the making or performance of any alterations. Sublessee further agrees to indemnify and save Sublessor, Master Lessor, Sublessor's and Master Lessor's agents from and against any and all loss, cost, liability, damage and expense including, without limitation, reasonable attorney's fees, incurred in connection with or arising from any claims by any persons by reason of injury to persons or damage to property occasioned by any use, occupancy, condition, occurrence, happening, act, omission or negligence referred to in the preceding sentence. The provisions of this Section shall survive the expiration or sooner termination of this Sublease with respect to any claims or liabilityoccurringp• prior to such expiration or termination. B. Indemnity by Sublessor. Sublessor shall indemnify, defend, and protect Sublessee and hold Sublessee harmless from any and all loss, costs, damage, g . expense and liability (including without limitation, court costs and reasonable attorney' s fees) incurred in connection with or arising from any cause, on or about the Subleased Premises, prior to the date Sublessee takes possession of the Subleased Premises. ARTICLE IX. INSURANCE. A. Fire Insurance. During theterm of this Sublease, Sublessee shall, at its expense, keep all buildings and other improvements on the Subleased Premises insured against loss or damage by fire, with extended coverage endorsement or its equivalent with such approve, and in amounts not less than Two Million Dollars ($2, 000, 000) on the restaurant facility, to cover the replacement of the buildings and other improvements insured, including all furniture, fixtures, equipment and other personal property placed and used by Sublessee upon the Subleased Premises, CrawMiami.sub 11 willful misconduct of Sublessor or its agents and employees. Further, Sublessee shall indemnify, defend, and protect Sublessor and Master Lessor and hold Sublessor and Master Lessor harmless from any and all loss, cost, damage, expense and liability (including without limitation, court costs and reasonable attorney's fees) incurred in connection with or arising from any cause, on or about the Subleased Premises, including, without limiting the generality of the foregoing: (i) any default by Sublessee in the observance or performance of any of the terms, covenants or conditions of this Sublease on Sublessee's part to be observed or performed; (ii) the use or occupancy of the Subleased Premises by Sublessee or any person claiming by, through or under Sublessee; (iii) the condition of the Subleased Premises from any cause whatsoever; or (iv) any acts, omissions or negligence of Sublessee or any person claiming by, through or under Sublessee, or of the contractors, agents, servants, employees, visitors or licensees of Sublessee or any such person, in, on or about the Subleased Premises or the real property, including without limitation, any acts, omissions or negligence in the making or performance of any alterations. Sublessee further agrees to indemnify and save Sublessor, Master Lessor, Sublessor's and Master Lessor's agents from and against any and all loss, cost, liability, damage and expense including, without limitation, reasonable attorney's fees, incurred in connection with or arising from any claims by any persons by reason of injury to persons or damage to property occasioned by any use, occupancy, condition, occurrence, happening, act, omission or negligence referred to in therecedin pg sentence. The provisions of this Section shall survive the expiration or sooner termination of this Sublease with respect to any claims or liabilityoccurringp• prior to such expiration or termination. B. Indemnity by Sublessor. Sublessor shall indemnify, defend, and protect Sublessee and hold Sublessee harmless from any and all loss, costs, damage, g . expense and liability (including without limitation, court costs and reasonable attorney' s fees) incurred in connection with or arising from any cause, on or about the Subleased Premisesprior to the date Sublessee takes possession of the Subleased Premises. ARTICLE IX. INSURANCE. A. Fire Insurance. During theterm of this Sublease, Sublessee shall, at its expense, keep all buildings and other improvements on the Subleased Premises insured against loss or damage by fire, with extended coverage endorsement or its equivalent with such approve, and in amounts not less than Two Million Dollars ($2, 000, 000) on the restaurant facility, to cover the replacement of the buildings and other improvements insured, including all furniture, fixtures, equipment and other personal property placed and used by Sublessee upon the Subleased Premises, CrawMiami.sub 11 with loss payable thereunder to Sublessor and the Master Lessor under the Master Lease in accordance with their respective interests therein. For purposes of the fire insurance to be provided under this paragraph, Sublessor and Sublessee initially fix full replacement value. B. Liability Insurance. Sublessee shall, at its cost and expense, at all times during the term of this lease, maintain in force for thejoint comprehensive of Sublessor and Master Lessor, a broad formJ coverage policy of public liability insurance by the terms of which Sublessee or invitee of Sublessee or any other person enteringupon or using the Subleased Premises, or anystructure a thereon, or any part thereof, is insured for acts or injuries arising from the use and occupancy of the Subleased premise thereof is waived. Such insurance policy or policies shall be maintained on the minimum basis of $2,000, 000, for the restaurant facility, for bodilyinjury to or death of one person, $3, 000, 000 bodily injury 000 for h or death in any one accident and $200, 000 for damage to property, such policyor policies shall include, but shall not be limited to, the following coverages: 1 ) contractors ' protective coverage; 2) auto and auto non-ownership; 3) full blanket contractual; 4) broad form and occurrence property damage; and 5) liquor law liability. Each three (3 ) Y years Sublessee and Sublessor shall re-evaluate the scope of coverage and the p g policy limits of such insurance ( including Fire Insurance) and, if Sublessor shall so request: 1 ) the scope of coverage shall be expanded to include such otherp coverage of the type and in limits as is customarily carried by persons engaged in enterprises similar to that of Sublessee, and 2 ) the limits of coverage shall be increased or decreased by a percentage equal to the percentage rise or decline in the g q Consumer Price Index ( all items) of the Bureau of Labor Statistics since the date on which such limits were last set. C. Workers ' Compensation. Sublessee shall, at its cost and expense, at all times during the term of this Sublease, maintain in force workers ' o kers ' compensation insurance as required by applicable statute. D. Policy Form and Evidence of Coverage. All policies of insurance provided for herein shall be written as primary policies (without "contribution" or "solely in excess of coverage carried by Sublessor" provisions) with companies, on forms, and with loss payable clauses satisfactory to Sublessor (such companies must have at a minimum a "General" of i of B+ p cy holder's rating ), and shall waive all rights of subrogation which the insurer might otherwise have, if any, against Sublessor sor or Sublessor and shall further contain an endorsement requiring q g thirty (30) days ' written notice to Sublessor and the Master Lessor under the Master Lease prior to cancellation or change in the coverage, scope or amount of anysuch g policy. All policies of insurance required to be maintained hereunder shall name Sublessor and the Master Lessor under the Master Lease as insureds thereunder e CrawMiami.sub 12 as their respective interests may appear. Immediately following the commencement of the term hereof, Sublessee shall supply Sublessor with a true and correct copy of all such policies or a certificate of insurance reflecting the coverage required hereby together with satisfactory evidence showing that all premiums thereon have been paid, and thereafter, as additional premiums become due, Sublessee shall supply Sublessor with satisfactory evidence that said premiums have been paid. Notwithstanding anything to the contrary contained within this provision, Sublessee ' s obligations to carry insurance as provided herein may be brought within the coverage of a so-called "blanket" policy or policies of insurance carried and maintained by Sublessee. In no event shall the limits of such insurance policies be considered as limiting the liability of Sublessee under this lease. Nothing contained herein shall ever be construed as rendering Sublessor personally liable for the payment of any insurance premiums but if at any time during the continuance of this Sublease, Sublessee shall fail, refuse or neglect to procure any policies of insurance, Sublessor may procure or renew such insurance and the amount or amounts of money paid as the premium or premiums thereunderp lus interest at ten percent ( 10%) as described in Article III, Section 7, shall be immediately due. ARTICLE X. DAMAGE OR DESTRUCTION. A. Sublessee's Duty to Restore. If during the term hereof the buildings or any appurtenant structure or other improvement constituting P a part of the Subleased Premises, or any part thereof, shall be damaged or destroyed by fire or other casualty, this g Sublease shall continue in full force and effect and Sublessee shall, at its sole cost and expense, repair or restore the same according to the original plans thereof or according to such modified plans as shall bereviousl P y approved in writing by Sublessor, and such work of repair or restoration shall be commenced within one hundredp twenty ( 120) days after the damage or loss occurs and shall be completed with due diligence, but not later than one year after such work is commenced, and such work shall be otherwise done in accordance with the requirements of the provisions hereof pertainingto the construction of improvements upon the p Subleased Premises, and all insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration, and if 1 ) there are no insurance proceeds or 2) the same shall be insufficient for said purpose, Sublessee shall make upthe deficiency out of its own funds. Should Sublessee fail or refuse to make the repairs or restoration as hereinabove provided, such failure or refusal shall constitute a default under the covenants and conditions hereof and all insurance proceeds so collected shall be forthwith paid over to and be retained by Sublessor for its own account, and Sublessor may, but shall not be required to, use and apply the same for and to the repair or restoration of said Subleased Premises and Sublessor may, at its option, terminate this Sublease as elsewhere provided herein. Such election by Sublessor shall be in addition to all other rights provided by this lease, CrawMiami.sub 13 at Law or in Equity. B. Effect of Destruction. The destruction of improvements upon the Subleased Premises rendering the Subleased Premises either entirelyclosed or more than 50% unusable shall effect a fifty fifty percent ( 50%) reduction in Minimum Rent for a period not to exceed six ( 6 ) months. ARTICLE XI . SUBLESSOR'S APPROVAL. A. Sublessor' s Consent to Improvements. Neither Sublessee, its employees, agents, licensees or contractors shall, without first obtaining Sublessor ' s written consent, make or install any alterations, improvements, additions or fixtures which affect the design or appearance of the exterior portions of the Subleased Premises or which materially affect the interior portions thereof, or which affect any structural, mechanical or electrical component of any structures or improvements comprising part of the Subleased Premises, or which require the approval of the Sublessor under the Master Lease. B. Approval of Plans and Specifications. Prior to the commencement of any construction or material repair or alternation of any building, structure or improvements ( including landscaping) upon the Subleased Premises, alllans p and specifications shall be submitted to Sub].essor and if required the Master Lease to the Master Lessor, q by for written approval thereof, which approval shall not be unreasonably withheld. C. Liabilities. Sublessor shall not be liable for any damages, loss or prejudice incurred or claimed on account of ( 1 ) the approval or disapproval of any plans, drawings and specifications; or2 ( ) the development of any improvements to the Subleased Premises. By approving plans, drawings and specifications, Sublessor assumes no liability or responsibility therefor, or for any defect in any improvement constructed from suchplans, . drawings and specifications; and Sublessee shall indemnify and hold Sublessor free and harmless from any damage, loss or prejudice claimedn a d from all costs, expenses and other charges arising therefrom and in connection therewith. D. Signs and Advertisements. Sublessee shall not erect or install any exterior sign, advertising media or window or door lettering without Sublessor' s and Master Lessor' s prior written consent. ARTICLE XII. CONDITION OF SUBLEASED PREMISES. CrawMiami.sub 14 A. Inspection. By execution of this Agreement in the space provided, Sublessee acknowledges receipt and delivery of possession of the Subleased Premises and that Sublessee has examined in detail the Subleased Premises prior to the execution and delivery of this Sublease and has found the same to be satisfactory for all purposes hereunder. Sublessee is subleasing the Subleased Premises in its "AS IS" present condition and state of repair. Sublessor makes no representation or warranty, express or implied, with respect to the condition of the Subleased Premises or its fitness or availability for any particular use and Sublessor shall not be liable for any latent or patent defect therein. B. Representation of Use. Sublessee acknowledges that no representations or warranties of any kind, express or implied, have been given or made by Sublessor, or its agents or employees, in connection with the Subleased Premises or any portion of the Subleased Premises, dealing with its physical condition, adequacy for intended purpose or use, nor in connection with the operation, use, business or profit potential of the Subleased Premises except as specifically and expressly set forth in this Sublease. ARTICLE XIII. LIENS AND CLAIMS. A. Hold Harmless. Sublessee shall not suffer or permit to be enforced against the Subleased Premises, or any part thereof, or any improvements thereon, any mechanics' , materialmen' s, contractors ' or subcontractors ' or other liens arising from or any claim for damage growing out of, the work of any construction, repair, restoration, replacement or improvement, or any other claim or demand howsoever the same may arise, except as provided in Article XV, but Sublessee shall pay or cause to be paid and released, or shall at Sublessee ' s cost post bond and release, all of said liens, claims or demands before any action is brought to enforce the same against said Subleased Premises; and Sublessee agrees to indemnify and hold Sublessor and said Subleased Premises free and harmless from all liability for any and all such liens, claims and demands, together with reasonable attorneys' fees and all costs and expenses in connection therewith. Notwithstanding anything to the contrary hereinabove contained, if Sublessee shall in good faith contest the validity of any such lien, claim or demand, then Sublessee shall, at its sole expense, defend itself and Sublessor against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before the enforcement thereof against Sublessor or the Subleased Premises, upon the condition that if Sublessor shall require, Sublessee shall furnish to Sublessor a surety bond satisfactory to Sublessor in an amount equal to such contested lien, claim or demand and any interest or penalty thereon, indemnifying Sublessor against liability for the same, and holding the Subleased Premises free from the effect of such lien or claim CrawMiami.sub 15 or if Sublessor shall request, Sublessee shall procure and record the bond provided for in the Applicable stature, providingfor bond freeing the Subleased Premises from the a effect of such liens or claims or action thereon. B. Notice by Sublessee. Without in any manner limiting the Sublessee ' s other obligations hereunder, before the commencement of any construction of anybuilding, structure work or g, or other improvement on the Subleased Premises, or of any repairs, alterations, additions, replacement or restoration in and about said Subleased Premises herein provided, Sublessee shall give to Sublessor as written notice thereof, specifying the nature and location of the intended work and the expected date of commencement thereof. Sublessor reserves e ves the right at any time and from time to time toost and maintain p aintain on the Subleased Premises such notices as may be necessary to protect Sublessor against liabilityfor s. all such liens and claims. C. Sublessor Paying Claims. In the event Sublessee shall fail to pay and discharge a or cause to be paid and discharged, when due and g assessment or other ch payableany tax, argeupon or in connection with the Subleased Premises, or any lien or claim for labor or material ater�al employed or used in any claim for damages arisingout of construction, repair, restoration, replacement, the p acement, maintenance and use of said Subleased Premises and the improvements thereon, judgment on a contested lien or claim, or anyinsuranceor any premium or expense in connection with said Subleased Premises, or any claim, charge or demand which Sublessee other has agreed to pay or cause to be paid under the covenants and conditions of this Sub 10 days Sublease, and if Sublessee, within ten ( 10) after the date of a written notice from Sublessor so to do, shall fail toa and discharge y the same, then, in addition to any remedies specified herein, Sublessor may, at its option, pay any of the aforementioned sums or discharge any action therefore or judgment , o r settle thereon, and all costs, expenses and other sums incurred or paid bySublessor • connection with anyof the foregoing in shall be paid by Sublessee to Sublessor upon demand, together with interest thereon at the rate of ten ( 10%),, as specified in Article III, Section 7, from the date incurred or paid, as additional rent hereunder. ARTICLE XIV SUBORDINATION OF SUBLEASE. A. Notice and Consent. Sublessee accepts this Sublease subject and subordinate to any mortgage, deed of trust or lien, easement and other matters of record pertaining to or affecting the Subleased P including without limitation, the Master Lease and any rem1ses, amendments, renewals and extensions hereof, and all matters which an inspection and survey of the Subleased Premises would disclose. Sublessee agrees upon demand to execute all such further instruments as Sublessor may request in order to waive, relinquish and q subordinate CrawMiami.sub 16 this Sublease on such terms as are herein stated. Sublessee may encumber hypothecate or pledge its leasehold interest to an established lending institution only with Sublessor' s consent, which consent shall not be unreasonably withheld. ARTICLE XV. EMINENT DOMAIN. A. Definition of Terms. The term "total taking" as used in this Article means the taking of the entire Subleased Premises under theP ower of eminent domain or a taking of so much of said Subleased Premises as to render the remainder thereof unsuitable for its intended purpose despite any possible repair or restoration. The term "partial taking" means the taking of a portion only of said Subleased Premises which does not constitute a total taking as above defined. The term "taking" means any taking or damage of or to all or any part of the Subleased Premises, or any interest therein, by reason of any exercise of the power of eminent domain, whether by condemnation proceedings, or otherwise, or any transfer of all or any part of the Subleased Premises, or any interest therein, including any avoidance of an exercise of the power of eminent domain. B. Total Taking. If during the term hereof there shall be a total taking, then the leasehold estate of Sublessee in andto the Subleased d Premises shall cease and terminate as of the date of the date the actual physical possession thereof shall be taken. At Sublessee ' s option, upon thirty (30) days written notice to Sublessor, Sublessee may terminate this Sublease in the event of reduction of gross revenues in excess of 25% for a period of ninety (90) days which said reduction is the direct result of public notice of this imminence of condemnation. C. Partial Taking. If during said term there shall be a partial takingof the Subleased Premises, this Sublease shall terminate as to the portion of said Subleased Premises taken upon the date upon which actual possession of said portion ofp said Subleased Premises is taken pursuant to said eminent domain proceedings, but said Sublease shall continue in force and effect as to the remainder of said Subleased Premises. If a portion only of said Subleased Premises is condemned and such taking shall not materiallyprevent Sublessee fromconductingoperations,its said then this Sublease shall continue in force and effect as to the portion of said Subleased Premises not condemned, without any reduction or adjustment of rental hereunder. D. Allocation of Award. All compensation and damages awarded for the taking of the Subleased Premises or any portion thereof shall, except as CrawMiami.sub 17 otherwise herein provided, belong to and be the sole property of Sublessor, but Sublessee shall be compensated for the market value (if any) of Sublessee 's leasehold herein, including the value of any unexpired term of this Sublease; provided, further, that Sublessee shall be entitled to any award that may be made for the taking of or injury to any improvements installed or constructed on the Subleased Premises at the expense of Sublessee, or on account of any cost or loss Sublessee may sustain in the removal of Sublessee' s fixtures, equipment and furnishings, or as a result of any alterations, modifications or repairs which maybe reasonably required by Sublessee in order to place the remaining portion of the Subleased Premises not so condemned in a suitable condition for the continuance of Sublessee' s tenancy. E. Effect of Termination. If this Sublease is terminated, in whole or inpart, pursuant to anyof the provisions of this ARTICLE XV, all rentals and other charges payable by Sublessee to Sublessor hereunder and attributable to the Subleased Premises taken, shall be aid upto P the date upon which actual physical possession shall be taken by the condemnor, or as provided in Article XV(B) , ( ) , and the parties shall thereunder be released from all further liability in relation thereto. ARTICLE XVI. DEFAULTS: REMEDIES. A. Defaults. The occurrence of any one or more of the followingevents shall constitute a default and breach of this Sublease and of all other Subleases in existence between the parties or their affiliates at other restaurant locations: 1. The vacating or abandonment of the Subleased Premises, except that said Subleased Premises may be closed up forty-five (4 5) days for the purpose of remodeling to once every two (2) years, which said closure shall not be considered an Event of Default; 2. The failure to cure within ten ( 10) days after written notice of any monetary obligation or Y g the failure to cure within thirty (30) days after written notice of any obligation required to be made bySublessee non-monetary hereunder, as to, and when due; provided, however, that if the nature of Sublessee ' s non- monetary obligation is such that more than thirty (30) days arerequired for performance and cure, then Sublessee shall not be in default if Sublessee commences performance with said thirty day period and thereafter diligently (30) prosecutes the same to completion. Any monetary or non-monetary obligation not cured for the Crawdaddy's Restaurant facility shall be deemed an "Event of Default" for any other restaurant facility subleased by Sublessee; Subless • 3. The failure to observe or perform anyof covenants, conditions or provisions of this the Sublease or the Master CrawMiami.sub 18 otherwise herein provided, belong to and be the solero ert of Sublessor, but Sublessee shall be compensated p p y p ed for the market value (if any) of Sublessee' s leasehold herein, includingthe value of any unexpired term of this Sublease; provided, further, that Sublessee shall be entitled to any award that may be made for the taking of or injury to any improvements installed or constructed on the Subleased Premises at the expense of Sublessee, or on account of any cost or loss Sublessee may sustain in the removal of Sublessee' s fixtures, equipment and furnishings, or as a result of any alterations, modifications or repairs which maybe reasonably required by Sublessee in order to place the remaining portion of the Subleased Premises not so condemned in a suitable condition for the continuance of Sublessee ' s tenancy. E. Effect of Termination. If this Sublease is terminated, in whole or inart pursuant to any of the provisions of this ARTICLEn XV, all rentals and other charges payable by Sublessee to Sublessor hereunder and attributable to the Subleased Premises taken, shall bepaid the date upon which actual physical up to P y possession shall be taken by the condemnor, or as provided in Article XV(B) , and the ' partes shall thereunder be released from all further liabilityin relation thereto. elation ARTICLE XVI. DEFAULTS: REMEDIES. A. Defaults. The occurrence of any one or more of the followingevents shall constitute a default and breach of this Sublease and of all other Subleases in existence between the parties or ' affiliates at other restaurant locations: their 1. The vacating or abandonment of the Subleased Premises, except that said Subleased Premises maybe closed forty-five (45) days for the purpose up to p p se of remodeling once every two (2) years, which said closure shall not be considered an Event of Default; 2. The failure to cure within ten ( 10) written notice of anymonetary days after Y obligation or the failure to cure within thirty (30) days after written notice of any obligation required to be made bySublessee non-monetary hereunder, as to, and when due; provided, however, that if the nature of Sublessee ' s non- monetary obligation is such that more thanssee s thirty (30) days are requiredfor performance and cure, then Sublessee shall default if Sublessee commences performancenot be in with said thirty (30) day period and thereafter diligently prosecutes the same to completion. Any monetary or non-monetary obligation not cured the Crawdaddy's Restaurant facility for shall be deemed an "Event of Default" for any other restaurant facility subleased by Sublessee; Subl • 3. The failure to observe or perform anyof h covenants, conditions or provisions the of this Sublease or the Master CrawMiami.sub 18 Lease to be observed or performed by Sublessee after notice and cure period having been given; 4. By virtue of the importance of the personal operation and management of the Subleased Premises by Sublessee in order that the good will associated with the Subleased Premises not be adversely affected, (i) the making by Sublessee of any general assignment, or general arrangement for the benefit of creditors; ( ii ) the filing by or against Sublessee of a petition to have Sublessee adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Sublessee, the same is dismissed within sixty ( 60) days, shall each also constitute a default hereunder; 5. The breach or default by any guarantor under any agreement guaranteeing Sublessee ' s performance hereunder or the breach or default of Sublessee or any guarantor under any pledge or security agreement securingSublessee ' s obligations hereunder, unless such breach or default is cured under the terms of such guarantee agreement; and, 6. Failure by Sublessee to keep the restaurant facility open for a minimum of three hundred (300) daysper Y year for lunch and three hundred sixty-five (365 ) days for dinner, which combination shall meet or may exceed the requirements of the Master Lease. B. Remedies. In the event of any such default or breach by Sublessee, after all notices have been given and cure periods having expired, ed,Sublessor may at any time thereafter with or without notice or demand and without limiting Sublessor in the exercise of anyright right or remedy which Sublessor may have by reason of such default or breach, exercise the following remedies: 1. Sublessor can continue this Sublease in full force and effect, and the Sublease will continue in effect as long as Sublessor does not terminate Sublessee ' s right toossession Sublessor shall have the right to collectp and g all monetary amounts when due. During the period Sublessee is in default, Sublessor can enter the Subleased Premises and relet it, or anyart of p it, to third parties for Sublessee's account. Sublessee shall be liable immediately to Sublessor for all costs Sublessor incurs in reletting the Subleased Premises, including, without limitation, o , broker' s commissions, expenses of remodelingthe Subleased Premises, required bythe reletting b eased and like costs. Reletting can be for a period shorter or longer than the remainingterm of this Sublease. Sublessee shall pay to the Sublessor the monetary obligations due under this Sublease on the dates theydue, areless the rent Sublessor receives from a reletting. No act bySublessor sor allowed by this paragraph shall terminate this Sublease unless Sublessor notifies Sublessee that Sublessor elects to terminate this Sublease. CrawMiami.sub 19 2. Sublessor can terminate Sublessee ' s right to possession of the Subleased Premises at any time after notices have been given and cure periods having expired. No act by Sublessor other than giving notice to Sublessee shall terminate this Sublease. Acts of maintenance, efforts to relet the Subleased Premises, or the appointment of a receiver on Sublessor' s initiation to protect Sublessor's interest under this Sublease shall not constitute a termination of Sublessor' s right to recover from Sublessee: a. The worth, at the time of award, of the unpaid rent that had been earned at the time of termination of this Sublease; b. The worth, at the time of the award, of the amount by which the unpaid rent that would have been earned after the date of termination of this Sublease until the time of award exceeds the amount of the loss of rent that Sublessee proves could have been reasonably avoided; c. The worth, at the time of the award, of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of the loss of rent that Sublessee proves could have been reasonably avoided, and d. Any other amount, and court costs, necessary to compensate Sublessor for all detriment proximately caused by Sublessee's default. "The worth, at the time of the award, " as used in (A) and (B) of this paragraph, is to be computed by allowing interest at the rate of ten ( 10%) percent as defined in Article III, Section 7. "The worth at the time of the award, as referred to in (C) of this paragraph, is to be computed by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one percent ( 1%) . 3. Sublessor, at any time after Sublessee commits a default, can cure the default at Sublessor' s cost. If Sublessor, at any time, by reason of Sublessee ' s default, pays any sum or does any act that requires the payment of any sum, the sum paid by Sublessor shall be due immediately from Sublessee to Sublessor at the time the sum is paid, and if paid at a later date shall bear interest at the rate of ten ( 10%) percent as defined in Article III, Section 7 from the date the sum is paid by Sublessor until Sublessor is reimbursed by Sublessee. The sum, together with interest on it, shall be additional rent. 4. Sublessor may pursue any right or remedy available to it under any guarantee agreement, security agreement or pledge agreement given in connection with this Sublease. C. Default by Sublessor. CrawMiami.sub 20 Sublessor shall not be in default unless Sublessor fails to perform obligations required of Sublessor within a reasonable time, but in no event later than thirty (30) days after written tten notice by Sublessee specifying wherein Sublessor has failed to perform such obligation; provided, however, that if the nature of Sublessor' s obligation is such that more than thirty30 performance ( ) days are required for P ce then Sublessor shall not be in default if Sublessor commences performance within such thirty30( ) day period and thereafter diligently prosecutes the same to completion. D. Cumulative Rights. All rights, options and remedies of Sublessor and Sublessee under this Sublease shall be cumulative and non- exclusive, and Sublessor shall have the right toanY one or ursue all of such remedies, or any remedyp which may be provided by law, whether or not stated in this Sublease. E. No Waiver by Sublessor. No failure by Sublessor to insist upon the strict performance of any term hereof or to exercise any right, power or remedy consequent upon a breach thereof and no acceptance orpartial P ce of full payment of an monetary obligation during the continuance of any such breach, shall constitute a waiver of any No waiver of any breach shall affect such term. or alter this lease, which shall continue in full force and effect with respect then existing or subsequent breach. uent bre . p to any other F. Time of Essence. Time is of the essence of the Sublease with respect the performance bythe to parties of their obligations hereunder. ARTICLE XVII. ASSIGNMENT AND SUBLETTING. A. Sublessor' s and Master Lessor' s Approval. Sublessee may assign this Sublease or sublet all of the leasehold interest created hereunderor part written consent of Sublessor only with the prior and Master Lessor, which consent ma not be unreasonably withheld. Sublessor and SublesseeY Sublessor reserves the right to condition agree that g such consent upon the following, among other things: (a) Sublessor' s determination the assignee is aperson, firm minat�on that or corporation whose financial responsibility is reasonably satisfactory and who has demonstrated an ability to operate a first class restaurant generating a gross receipts volume sufficient to produce percentage amount not less than the averageg rentals in an of such rentals theretofore generated by Sublessee or an assignee or sublessee of or both, with respect to such SubleasedSublessee, Premises during the three (3) calendar years immediately precedingSublessee ' s s request for approval; (b) there is no existing default on theart of Sublessee ublessee in the performance or observance i of any of the covenants and conditions of this Sublease; (c) any assignment or sublease shall CrawMiami.sub 21 be in writing, duly executed and acknowledged by Sublessee and the assignee or sublessee, in form satisfactory to Sublessor, and provides that the assignee or sublessee will assume and agree to carryout and g perform all of the terms, covenants and conditions of this lease on the part of Sublessee to be carried out and performed; (d) an executed original of such assignment or sublease shall be delivered to Sublessor, and (e) the prior written consent therefore is obtained from the Department of Alcoholic Beverage Control, if required. Sublessor's consent tog any assignment or sublease under this paragraph shall not release Sublessee from any obligations under this Sublease arisingbefore or after the effective date of such assignment or sublease. No assignment or subleaseany wa shall in constitute, g Y or be construed as constituting, a novation of the leasehold estate created hereunder, or a release of Sublessee from any of its duties or obligations arising hereunder. The consent bySublessor g o to any assignment or subletting shall not be construed to relieve Sublessee from obtaining the written consent of Sublessor to anyfurther assignment or subletting. Notwithstanding g the foregoing, if it is determined that Sublessor may only withhold its consent to assignment or sublease by recourse to considerations of "reasonableness", then Sublessee ' s sole remedy shall be to have the proposed assignment or subletting declared as valid as if Sublessor' s consent had been given thereof, provided, however, individual guarantors are substituted and Sublessor consents and d reasonably approves such substituted individual(s) financial condition. B. Attornment. Sublessee shall insert in each sublease permitted under the provisions of this Article a provision to the effect that subject and subordinate ( a) such sublease is to all of the terms and provisions of this Sublease and to the rights of Sublessor hereunder, (b) in the event this Sublease shall terminate before the expiration of such sublease, the sublessee thereunder will, Sublessor's option, attorn to Sublessorat and waive any right the sublessee may have to terminate the sublease or to surrender e der possession thereunder, as a result of the termination of this Sublease and (c) in the event the sublessee thereunder receives a written notice from Sublessor stating that Sublessee is in default e cult under this Sublease, sublessee shall thereafter be obligated all rentals accruingunder said g to pay sublease directly to the party giving such notice, or as such party may direct. ARTICLE XVIII. NEGATION OF PARTNERSHIP Nothing contained herein shall be construed in any manner to make Sublessor, a partner of Sublessee in the conduct of its business, or otherwise, or a joint venturer or a member of a joint enterprise with Sublessee. The provisions of this lease relating to override royalty's and other percentage provided g based calculations hereunder are p ed solely for the purpose of providing a method whereby the rental which is payable hereunder is to be measured and ascertained. CrawMiami.sub 22 ARTICLE XIX. HOLDING OVER The Sublease shall terminate and become null and void without further notice upon the expiration of the leasehold term herein specified, and any holding over by Sublessee after the expiration of said term shall not constitute a renewal hereof or give Sublessee any rights hereunder or in or to the Subleased Premises. Such holding over shall constitute only a month-to-month tenancy, subject to all applicable terms of this Sublease. ARTICLE XX. STATUTES AND REGULATIONS. Sublessee shall at all times in the performance of its obligations set forth elsewhere in the Sublease fully comply with any law, ordinance, and regulation, federal, p r g al, state, county or municipality, now or hereafter in force, applicable to the Subleased Premises or the use or occupancy thereof. Sublessee in the performance of its obligations under this Sublease shall comply to the Sublease with any and all rules and regulations applicable d d Premises issued by the Board of Fire Underwriters, or byother body hereinafter constituted exercisingsimilar any functions, and by insurance companies writing policies covering the Subleased Premises. Sublessee shall pay all costs, expenses, claims, fines, penalties, and damages that may be imposed because of the failure of Sublessee to comply with this Article, and shall indemnify Sublessor from all liability arisingfrom such non-compliance. Sublessee shall promptly notify Sublessor of anynotice of violation received byit. ARTICLE XXI . WASTE AND NUISANCE. Sublessee shall not commit or suffer to be committed any waste upon the Subleased Premises, or any nuisance or act or thing which may disturb any property owner in the vicinity of the Subleased Premises. ARTICLE XXII. OBSERVANCE OF MASTER LEASE. Sublessee's interests under this Sublease are subject and subordinate to all limitations and terms contained in the Master Lease. Sublessee expressly agrees to observe all requirements and limitations and perform all obligations imposed upon Sublessor under the Master g Lease during the term of this Sublease. Nothing contained herein shall be deemed or interpreted p eted to affect Sublessee's obligation to do so. Such observance shall not reduce or mitigate Sublessee 's obligations hereunder, should this Sublease call for additional performance or observance. In the event, however, that the Master Lease contains Sublessee ' s essee s requirements and covenants which are more restrictive, onerous additional than or to the requirements and covenants or Sublessee hereunder, Sublessee shall observe and all of such requirements and covenants contained in the Master Lease. ARTICLE XXIII. OTHER ACTIVITIES OF SUBLESSOR. CrawMiami.sub 23 Sublessee acknowledges and understand that Sublessor's business activities or those of Sublessor's affiliates may include a variety of activities and operations which may be in competition with Sublessee's business activities. Nothing contained herein shall be construed to prevent or impair Sublessor or Sublessor's affiliates ability to engage in such activities now or in the future in any manner whatsoever, and the engagement by Sublessor or such affiliates in such activities shall in no event release Sublessee from its obligations hereunder or operate to reduce the extent of such obligations. ARTICLE XXIV. FURTHER ACTS. Sublessee agrees to join with Sublessor, if Sublessor shall so request, at Sublessee's sole cost and expense, in the performance of all further acts, and the execution of all further documents and instruments, necessary or appropriate in the view of Sublessor to effectuate the consummation of the transactions herein described and to obtain any and all approvals or permits in connection therewith. ARTICLE XXV. PAYMENTS AND NOTICES. All monetary obligations payable by Sublessee to Sublessor hereunder or under the Master Lease shall be paid to Sublessor at its business office or at such other place as Sublessor may hereafter designate in writing. All notices, requests, demands, or other communications hereunder shall be in writing, and shall be deemed to be duly given (i) on the date of delivery if delivered in person, (ii) one day after the mailing if mailed by United States mail, certified or registered, with return receipt requested, or (iii) on the date of delivery if otherwise actually delivered. A. If to Sublessor, to: B. If to Sublessee, to: Specialty Restaurants Corp. South Pointe Hospitality, 2099 S. State College Blvd. Inc. , a Florida Corporation Suite 300 c/o Crawdaddy's Restaurant Anaheim, California 92806 #1 Washington Avenue Miami Beach, FL 33139 Attn: President Attn: President With Copy to Legal Dept. Attn: General Counsel or such other address or addresses as Sublessor or Sublessee may have furnished to any other parties in writing, and C. If to Master Lessor, to: City of Miami Beach City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager CrawMiami.sub 24 or such other address or addresses as Master Lessor may have furnished to Sublessor and Sublessee in writing. ARTICLE XXVI. SEVERABILITY AND APPLICABLE LAW. Whenever possible, each paragraph of this lease shall be interpreted in such manner as to be effective and valid under applicable law, but if any paragraph or portion thereof shall be prohibited or invalid under applicable law, such paragraph or portion thereof shall be ineffective to the extent of such paragraph or the remainder of this Sublease. This Sublease has been made and entered into in the State of Florida and the laws of said State will govern the validity and interpretation hereof and the performance hereunder by the parties hereto. ARTICLE XXVII. ATTORNEYS ' FEES AND COST. In the event of the bringing of any action or suit by a party hereto against the other party hereto, by reason any breach of any of the covenants, conditions or provisions on the part of the other party hereto arising out of this Sublease, then and in that event the party in whose favor final judgment shall be entered shall be entitled to have and recover from the other party expenses of suit, including all costs and reasonable attorneys ' fees. ARTICLE XXVIII. ENTIRE AGREEMENT. This Sublease embodies the entire understanding of the parties and there are no further or other agreements or understandings, written or oral, in effect between theP arties governing the sublease of the Subleased Premises, unless expressly p Y herein may be amended or modified only by an instrument of equal formality, signed by the parties hereto. ARTICLE XXIX. SUCCESSION OF INTEREST. All of the agreements, terms provisions and conditions of this Sublease shall be binding upon and inure to the benefits of the parties hereto and their respective heirs, successors and assigns. ARTICLE XXX. CAPTIONS. The captions used in this Sublease are for the convenience of reference only, and do not form apart of this Sublease. ARTICLE XXXI. STATEMENT OF ISSUE. Sublessee shall, at any time and from time to time, upon not less than ten (10) days prior written notice by Sublessor, execute, acknowledge and deliver to Sublessor a statement in writing certifying that this Sublease is unmodified and in full force and effect (or, if there has been any modification thereof, CrawMiami.sub 25 that the same is in full force and effect as modified and stating the modification or modifications) and that Sublessor is not in default, except as specified in such statement, in regard to any of its covenants or obligations under this lease, and further setting forth the dates to which all monetary obligations hereunder have _been paid in advance, if any, and such other statements relating to delivery acceptance of the Subleased Premises as Sublessor' s lender, lienor, encumbrancer or purchaser may require. Sublessee represents and warrants that anysuch q statement delivered pursuant to this Article will be accurate and bindingupon Sublessee and may be relied upon byanysuch p person and Sublessee shall be taken to have waived any defaults by Sublessor occurring before the date of such statement and not set forth therein therein. ARTICLE XXXII. INSPECTION. Sublessor hereby reserves the right, through its authorized agents, at any time during the term of this Sublease, to enter upon the Subleased Premises and any part thereof to inspect the same and to observe the operations of Sublessee on said Premises. ARTICLE XXXIII. EXHIBITS. All exhibits referred to herein are incorporated by reference and made a part hereof. ARTICLE XXXIV. FORCE MAJEURE. Except as hereinafter in this Article provided, the performance of any act by Sublessor or Sublessee hereunder maybe delayed or suspended at any time while, but only s o long as, either party is hindered in or prevented from performance byacts of God, the elements, war, rebellion, strikes, lockouts, or any other cause beyond the reasonable control of such party; provided, hod that nothing hereinabove contained in this Article shall modify,f , impair or in any manner apply to any provisions of this Sublease relative to the payment of any monetary obligations hereunder. ARTICLE XXXV. COUNTERPART EXECUTION. This Sublease may be executed in counterparts, and when so executed, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. ARTICLE XXXVI. BANQUET DEPOSITS. Upon occupancy of the Subleased Premises, Sublessor shall prepare a complete accounting regarding anyBanquet q Booking Dates, Banquet Deposits, Gift Certificates, and Coupons Outstanding held by Sublessor, if any should exist. The Banquet Deposits, fif any, for functions that are booked through December 31, 1990, shall be released to Sublessee on the date of occupancy of the Subleased Premises. Any Banquet Deposits held by Sublessor for events after December 31, 1990, shall be released to Sublessee on January 1, CrawMiami.sub 26 1991. The Gift Certificates and Coupons Outstanding, if shall any, be released to Sublessee upon presentment to Sublessor of the cancelled Certificate or Coupon. Any deposits held bySublessor shall be paid over to Sublessee without liability for interest. ARTICLE XXXVII. SECURITY AGREEMENT. A. All property of every kind or nature now, or hereafter, placed upon the Subleased Premises by Sublessee, includingbut not limited to all furnishings and equipment gand all liquor licenses or other licenses or permits, shall be additional securityfor benefit of Sublessor for the faithful the performance of all of Sublessee ' s obligations under this Sublease. Sublessee shall a 1 execute and Sublessor may file, Financing Statements and Security Agreements upon execution of this Sublease, and from time to time hereafter as Sublessee adds or utilizes propertyat the Subleased eased Premises, for purposes of perfecting this security interest. B. The foregoing notwithstanding, Sublessor agrees to provide lien waivers as required to equipment g q q pment lessors or other financing institutions for the purchase or lease of furniture and equipment so that such lenders to lessor shall be able to perfect purchase money securityinterests in P ect the financed property. As a condition to the execution by Sublessor of such lien waivers, Sublessee agrees that to the extent that the new furniture or equipment replaces existing furniture or equipment, ro property beingit shall either store the p p y replaced for the benefit of Sublessor, or make other arrangements for such property to Sublessor, includingthe return p p Y suitable of said stored equipment to the Subleased Premises. ARTICLE XXXVIII. USURY. If for any reason, the rate of interest called for in this Sublease is determined to be usurious or ' unenforceable, then, in that event, otherwise Sublessor shall be entitled to the maximum interest allowable by law. Payment of such interest shall not excuse or cure any default by Sublesseeunder this ' Sublease. ARTICLE XXXIX. MONETARY OBLIGATIONS DEEMED RENT. Any monetary obligation of Sublessee to Sublessor under the terms of this Sublease or the Master Lease deemed to be rent. shall be ARTICLE XXXX. QUITCLAIM. At the expiration, or earlier termination of this Sublease, Sublessee shall execute, acknowledge, and deliver toSublessor, within 10 days after written demand from Sublessor any quitclaim, deed, or document reasonably requested by any reputable title company to remove the cloud of this Sublease from of the real propertysubject ect to o the title this Sublease. All title insurance or surveys desired by Sublessee in exercising this Sublease CrawMiami.sub 27 Agreement in either fashion shall be at Sublessee ' s sole expense. ARTICLE XXXXI. FF&E/INVENTORY/LIQUOR LICENSE. A. Furniture, Fixtures and Equipment. All furniture, fixtures, and equipment shall be inventoried by the parties and included in the Minimum Monthly Rental; however, Sublessee shall have the obligation to return and replace, if necessary, all furniture, fixtures and equipment in their present condition, except for ordinary wear and tear. B. Operating Inventories. The Operating Inventories, including, but not limited to, china, silver, and glass ware, pots, pans, linen, food, and beverage shall be inventoried by an authorized agent of Sublessor and Sublessee, without cost to Sublessor. The Operating Inventories (except food and beverage) shall be sold at Sublessor' s s cost with a twenty percent (20%) discount. The food and beverage inventory shall be sold at Sublessor' s cost withoutg discount. Any operating inventory that has been purchased for the Subleased Premises four (4) weeks prior to the date of occupancyshall be sold at cost without discount. The food and beverage inventory shall be limited to an amount equal to the average inventorylevel for the Subleased Premises three (3 ) months prior to the date of occupancy. Any amount in excess over the average inventory level for food and beverage shall be paid in cash by the Sublessee on the date of occupancy. The amount due for all inventoried items shall be evidenced by a Promissory Note, in favor of Sublessorh t e principal balance of this Promissory Note outstandingshall bear interest at the rate of prime rate ( as designated from time to time by California Federal Bank) plus one percent ( IA) per annum from rom and after the date of occupancy. Said principal and interest shall be repaid in equal consecutive monthly installments amortized over a three (3) year period with such payments commencing on December on the 1, 1990, and shall continue thereafterh first day of each calendar month until the entire principal balance, and any interest due hereunder, shall be accrued paid in full. The entire principal balance and any accrued interest shall beaid not than thirty-six (36) months after the date of occp later occupancy. C. Liquor License. The Liquor License existing at the Subleased Premises shall be sold at its fair market value, if any. The fair market a ket value shall be established by comparing the sale or transfer of an identical liquor license within the last ninety ( 90) dayperiod. p • The fair market value established, if any, shall be added to and become a part of the Promissory Note created for the Operating Inventories. D. Deposits/House Banks. It is agreed between the parties that Sublessee shall CrawMiami.sub 28 purchase for cash upon occupancy of the Subleased Premises, Sublessor' s House Banks, and any and all Landlord, Vendor, or Utility Deposits. E. Inspection and Inventory. All furniture, fixtures, and equipment shall inventoried by an authorized agent of Sublessorbe g and Sublessee and shall be attached as Exhibit "B" and by this reference incorporated herein. Sublessee shall have the obligation g tion to return and replace, if necessary, all furniture, fixtures, and equipment ' Exhibit "B" attached hereto, in first class listed on condition at the termination of the Lease Term or any extensions authorized agent of Sublessor thereof. An and Sublessee shall also conduct a thorough inspection of the restaurant building, structures, and improvements with Sublessee having the obligation to return to first class condition and appearance, the buildin improvements. g, structures, and ARTICLE XXXXII. SUBLEASE APPROVAL/LIQUOR LICENSE TRANSFER. The parties agree that this Sublease is contingent ge t upon receiving approval of the Sublease Agreement from Lessor and the transfer of the the Master existing liquor license for the Subleased Premises. ARTICLE XXXXIII. BROKERAGE FEES. Sublessor and Sublessee acknowledge that no It is understood are involved in this transaction. g and agreed that there should be no real estate brokerage • finder's fees, or other like fees commissions, or charges to be paid in connection with this Sublease. ARTICLE XXXXIV. COVENANT OF GOOD FAITH The parties mutually agree that each shall be by the covenant of good faith and fair bound dealing. The Sublessor, when its consent is required, shall not unreasonably • withhold same. ARTICLE XXXXV. ENFORCEABILITY OF AGREEMENT. The parties mutually agree that this Sublease, the relationshipof the and parties, shall be construed, inter reted and enforced in accordance with the laws of the p and the Courts of the State of Florida, State of Florida shall have exclusive jurisdiction over the interpretation andenforcement of this s Sublease Agreement. ARTICLE XXXXVI. QUIET ENJOYMENT. The Sublessor covenants and warrants Sublessee shall have quiet en 'o en that the � t and undisputed possession of the Subleased � Premises so long as Sublessee faithfully obligations hereunder. performs its CrawMiami.sub 29 ARTICLE XXXXVII. ADDITIONAL GUARANTEE. It is agreed between the parties that Mr. and Mrs. Arthur Forgette shall each individually and unconditionally guarantee the full performance of this Sublease Agreement by Sublessee; however, at any time Mr. and Mrs. Arthur Forgette may be released of this Guarantee by performing the following: A. By giving Sublessor a minimum one hundred eighty ( 180) days advance notice of termination; B. Pay any and all arrearages, including, but not limited to, rent, vendors, and utilities; and, C. Return the Subleased Premises, including, but not limited to, the furniture, fixtures, equipment, building, structures, landscaping, floor coverings, and improvements all in first class condition and appearance. ARTICLE XXXXVIII. CAPITAL REPLACEMENT FUND. The parties agree that the Sublessee shall have the option, within the first twenty-four (24) months of the Sublease Term, to commence to deposit into an interest bearing Capital Replacement Fund, held by the Sublessor, on a monthly basis, an amount equal to two percent (2%) of the gross sales from the restaurant facility. This fund shall be exclusively used for capital expenditures. The expenditures shall be agreed to by the parties on a quarterly basis and if a dispute shall arise as to the application of said reserve funds, the matter shall be set for arbitration with the cost to be apportioned equally between the parties. The parties acknowledge that Sublessee is required to maintain the restaurant facility in a first-class condition and appearance; however, in the event that Sublessee exercises his option to maintain a Capital Replacement Fund, said funds shall be deemed to discharge his duty of maintaining and returning the Subleased Premises in a first-class condition and appearance. Furthermore, the monthly contribution to the Capital Replacement Fund shall be allowed as a deduction in computing net profit ( "PBT" ) under Article III, Additional Rent. The Capital Fund deposit shall be paid by the 15th day of the following month along with the Percentage Rent, if any. ARTICLE XXXXIX. REPAIR OF PUBLIC STAIRWAYS. Sublessor and Sublessee agree that the issues regarding any and all public stairways at the restaurant facility shall be dealt with between the parties either as an amendment to this Sublease Agreement or under separate cover. ARTICLE L. AIR CONDITIONING REPAIR. The parties agree that Sublessee shall submit a bid to repair the air conditioning system to Sublessor within fifteen CrawMiami.sub 30 (15) days of the execution date of this Agreement, ' be approved byboth ar g which bid shall parties. Sublessor shall contribute the amount of Eleven Thousand Dollars ($11, 000) toward the repair of said air rconditioning repair pursuant to the approved bid. Said Eleven Thousand Dollars ($11, 00) payment shall be made to Sublessee upon completion of the air conditioning repair work pursuant to the approved bid. IN WITNESS WHEREOF, the parties hereto have executed foregoing Sublease as of the date the first above written. Sublessor: SPECIALTY RESTAURANTS CORPORATION a California corporation (Th By: Cat>t 1exthatt-A•„ David C. Tallichet, Jr. President Sublessee: SOUTH POINT HOSPITA ITY, INC. a Florida •r•o : ,, on By: Arth r Fo gette, Presi• -n, CONSENT OF LESSOR The undersigned is the Lessor in the Master Lease in the foregoingSublease and described . hereby consents to the Sublease of the premises described in the Sublease to South Pointe • Inc. , waivingnone of lute Hospitality, his rights under the Master Lease as to the Lessee or under the Sublease as to the Sublessee; and provided further that the Master Lease , shall continue in full force and effect and that the Lessee shall continue to be underliable to the Lessor in all respects the terms and conditions of the Master Lease. LESSOR, MASTER LEASE: ATTEST: THE CITY OF MI/ I I : ;'f CH CITY CLERK Arrt 71-).bycwv __ FORM APPROVED By: IYOR LEGAL DEPT. ey . CrawMiami,sub 31 7?‘/9/ Date GUARANTEE IN CONSIDERATION of Specialty Restaurants Corporation, a California corporation, entering into the Sublease Agreement dated November 414P, 1990, with South Pointe Hospitality, Inc. a Florida Y corporation, as Sublessee, Mr. and Mrs. Arthur For Forgette, as Guarantors, jointly and severally unconditionally guarantee and promise toa p Y Specialty Restaurants Corporation, or order, on demand, in lawful money of the United States, any and all indebtedness of South Pointe Hospitality, Inc. (hereinafter called "Subtenant" ) to Specialty Restaurants Corporation. The word "indebtedness" is used herein in its most comprehensive sense and includes any and all advances, debts, obligations, and liabilities of Subtenant or any one or more of them, heretofore, now, or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether Subtenant may be liable individually or jointly with others, or whether recovery upon such indebtedness may be or hereafter become barred by any statute of limitations, whether such indebtedness may be or hereafter become otherwise unenforceable. This is a continuing guaranty relating to any indebtedness, including that arising under successive transactions which shall either continue the indebtedness or from time to time renew it after it has been satisfied. This guaranty shall not apply to any indebtedness created after actual receipt of Specialty Restaurants Corporation of written notice of its revocation as to future transactions. Any payment a ment by Guarantors shall not reduce their maximum obligation hereunder unless written notice to that effect be actually received by Specialty P y Restaurants Corporation at or prior to the time of such payment. The obligations hereunder are joint and several, and independent of the obligations of Subtenants, andp a separate action or actions may be brought and prosecuted against Guarantors whether action is brought against Subtenants or whether Subtenants beg joined in any such action or actions; and Guarantors waive the benefit of any statute of limitations affecting their liability hereunder or the enforcement thereof. Guarantors authorize Specialty Restaurants Corporation, without notice or demand and without affecting their liability hereunder, from time to time to (a) renew, compromise, extend, accelerate, or otherwise change the time for payment of, or otherwise change the terms of the indebtedness or any part thereof, including increase or decrease of the rate of interest thereon; (b) take and hold security for theYm a ent of P this guaranty or the indebtedness guaranteed, and exchange, enforce, , waive, and release any such security; (c) apply such security and direct the order or manner of sale thereof as Specialty Restaurants Corporation in its discretion may determine; and (d) release or substitute any one or more of the endorsers or guarantors. Specialty Restaurants Corporation may without notice assign this guaranty in whole or in part. 32 Guarantors waive any right to require Specialty Restaurants oration to (a) proceed against Subtenant; (b) proceed against or exhaust any security held from Subtenants; or (c) pursue Restaurantsp any other remedy in Specialty Corporation's power whatsoever. Subtenants waive any defense arising by reason of anydisability other defense of Subtenants or or by reason of the cessation from any cause whatsoever of the liability of Subtenants. Until all indebtedness of Subtenants to Specialty Restaurants Corporation shall beaid in p full, even though such indebtedness is in excess of Guarantors ' liability hereunder, Guarantors shall have no right of subrogation, and remedywhichg waive any right to enforce any Specialty Restaurants Corporation now has or may hereafter have against Subtenants, and waive anybenefit benefit of, and any right to participate in any security now or hereafter held by Specialty Restaurants Corporation. Guarantors waive allresen m performance, noticesp t ents, demands for perf , of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this guaranty and of the existence, p creation, or incurring of new or additional indebtedness. In addition to all liens upon, and rights of setoff against ro g the moneys, securities, or other property of Guarantors given to Specialty Restaurants Corporation by law, Specialty Restaurants Corporation on and right shall have a lien upon g t of setoff against all moneys, securities, and other property of Guarantors now or hereafter in the ' possession of or on deposit with Specialty Restaurants Corporation, whether held in a general or special account or deposit, or for safekeeping otherwise; and every such lien and right p g or g of setoff may be exercised without demand upon or notice to Guarantors. No lien or right fight of setoff shall be deemed to have been waived by anyact conduct or on the part of Specialty Restaurants Corporation, or b neglect to Y any g exercise such right of setoff or to enforce such lien, or byanydelayin • and every right of setoff and so doing, lien shall continue in full force and effect until such right of setoff or lien is specifically ' released by an instrument in p ly waived or wiring executed by Specialty Restaurants Corporation. Any indebtedness of Subtenants now or hereafter held by is hereby subordinated to the Guarantors indebtedness of Subtenants to Specialty Restaurants Corporation; and such indebtedness of Subtenants Specialty Restaurants to Guarantors if S P y Corporation so requests shall be collected, enforced, and received by Guarantors as trustees for Specialty Restaurants Corporation and be paid over to Specialty Restaurants Corporation on account of the indebtedness of Subtenants to Specialty Restaurants Corporation but without reducingor affecting any manner the liabilityof in Guarantors under the other provisions of this guaranty. Where any one or more of Subtenants are corporations partnerships it is not necessaryfor Specialty p ons or Restaurants Corporation to inquire into the powers of Subtenants or the officers, directors, partners, or agents acting or purporting to act on their behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder. Guarantors agree to pay a reasonable attorney' s fee and all other 33 costs and expenses which may be incurred by Specialty Restaurants Corporation in the enforcement of this guaranty. Any married woman who signs this guarantee hereby expressly agrees that recourse may be had against her separate property for all her obligations under this guaranty. In all cases where there is but a single Subtenant or a single Guarantor, then all words used herein in the plural shall be deemed to have been used in the singular where the context and construction so require; and when there is more than one Subtenant named herein, or when this guaranty is executed by more than one Guarantor, the word "Subtenants" and the word "Guarantors" respectively shall mean all and any one or more of them. IN WITNESS WHEREOF, the parties hereto have executed this Guarantee as of November 2 , 1990. Art r orgette Gua a.' or Spouse 34 OPIGINAL RESOT,UTION NO. 91-20223 To authorize the Mayor and the City Clerk to execute a consent of lessor to a sub- lease agreement between Specialty Restaurants Corporation and South Pointe Hospitality, Inc. dated November 8, 1990.