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Home My WebLink AboutMB Redevelopment Inc. Letter . - " ,. ,~. .' /" "..- ~ MB REDEVEl.OPMENT. INC. 667 Madison Avenue New York, NewYor!< 10021-8087 August . 1999 Gables Professional Realty, Inc. 300 Aragon Avenue, Suite 205 Coral Gables, Florida 33134 Gentlemen/Ladies: This will confirm our agreement regarding your services as a broker in connection w~h the proposed sublease (the "Sublease") between MB Redevelopment, Inc., as the sublandlord ("MB"), and Abkey No. 17, Inc., a Florida corporation d/b/a FuddrucKers Bar & Grill (or Fuddruckers) ("Subtenant"), for retail space to be situated in a municipal parking garage at an area bounded by Washington and Collins Avenues in the proximity of 16th Street, Miami Beach, Florida (the 'Premises"), being leased by MB from Miami Beach Redevelopment Agency, Inc. (the "Agency") pursuant to a Retail Space Master Lease (the "Master Lease"). All defined terms in this letter shall have the same meaning as in the Sublease, except If otherwise noted. 1. Subject to the conditions and limitatIOns hereinafter set forth, the commission (the 'Commlssion") for your services in connection with the foregoing shall be an amount equal to (8) six (6%) percent of the aggregate of lt1e Minimum Rent paid by Subtenant to MB from the Rent Commencement Date through the expiration of the fifth (5th) Sublease Year, and (b) four and one-half (4.5%) percent of the aggregate of the Minimum Rent from the beginning of the sixth (6th) Sublease Year through the expiration of the Initial Term of the Sublease. The term "Minimum Rent' shall exclude additional rent or other charges of any type or nature whatsoever paid or payable by Su blenant under the Sublease including amounts payable on account of increases In real estate taxes, operating expenses, any escalations, utility payments or other charges for any services, if any. 2. Your right to the payment of the Commission shall be subject to the following conditions and limitations: (a) The Commission shall be deemed eamed and payable to you only if and when, and not unless and until, all of the following condltlons have been fulfilled: (I) the Sublease for the Premises is executed by both MB and Subtenant (Ii) the Sublease is approved by the Agency in accordance with the terms of the Master Lease; (iii) Subtenant has taken ac;tual possession of the Premises for the use and purposes specified in the Sublease; (Iv) all conditions specifled In the Sublease for commencement of Subtenants business operatlons have been fulfilled: and (v) Subtenant has commenced its business operations at the Premises. (b) Subsequent to Subtenants taking possession of the Premises, should Subtenants possessiOn of the Premises terminate for any reason whatsoever, you shall be entitled only to the portion of the Commission paid through such date of termination. . (el The Agency and MB each reserves the right, In its sole discretion without any liability to you, to refuse to enter into any lease or negotiation with Subtenant or any other party, determine MI990890.018 .' ,.,...... 'Gables ProfessiOnal Realty, In(.. ?age 2 alltenns and conditions of any proposed Sublease or lease, and refuse to sublet the Premises or pennit Subtenant to take possession of the Premises for any reason whatsoever. 3. The Commission shall be payable to you as follows: (a) one-third of the Commission upon the Sublease being executed by both parties and approved by the Agency (it being understood and agreed that such payment constitutes a payment in advance of your eaming the Commission, and that no part of the Commission has been eamed until all of the conditions specified in paragraph 2(a) above have been fulfilled); and (b) one-third of the Commission following the Subtenanfs commencement of Minimum Rent payments; and (c) one-third of the Commission in six (6) months fallowing the Subtenanfs commencement of Minimum Rent payments. You agree that if, subsequent to the execution of the Subiease by both parties, Subtenant fails to take possession Of the Premises and commence its business operations at the Premises, any portion of the Commission paid to you shall be immediately refunded, inasmuch as the conditions for your earning the Commission would not have .been fulfilled in accordance with paragraph 2(a), The Commission due under this agreement shall be adjusted automatically to reflect the provisions of this paragraph 3. 4. Subject to the conditions and limitations hereinafter set forth in this paragraph 4, if Subtenant should timely exercise the Renewal Option in strict accordance with the terms of the Sublease, you shall receive an additional commission (the "Additional Commissionj equal to three (3%) percent of the aggregate of the Minimum Rent paid by Subtenant to MB from the Rent Commencement Date of the Renewal Term through the expiration of the Renewal Term. "Minimum Renr shall have the meaning set forth in paragraph 1 of this letter. (a) Your right to the payment of the Additional Commission shall be subject to the following conditions and limitations: (i) The Additional Commission shall be deemed earned and payable to you only if and when, and not unless and until, Subtenant shall have timely given the Renewal Notice in strict accordance with tI1e terms of the Sublease. (II) SUbsequent to Subtenanfs timely exercise of the Renewal Option, should SubtenanfS possession of the Premises terminate for any reason whatsoever, you shall be entitled only to the portion of the Addillonal Commission paid through such date of tennination. (b) The Additional Commission shall be payable to you as follows: (i) one-half Of the Additional Commission by no later than thirty (30) days after the Rent Commencement Date of the Renewal Term; and (ii) one-half of the Additional Commission by no later than six (6) months after the Rent Commencement Date of the Renewal Tenn. 5. You shall not be entitled to, nor shall there be payable, any commission or fee in the event of: (a) any extension or renewal of the original term of the Sublease, unless such extension or renewal is the result of Subtenanfs timely exercise of the Renewal Option in strict accordance with the terms of tI1e Sublease; or (b) any expansion of the Premises, whether or not the addillon results from Subtenanfs exercise of an option to expand contained in the Sublease; or (c) any of the transactions described in (a) and (b), above. involving any parent, subsidiary, or affiliate of Subtenant 6. You represent and warrant that you are and will be, to the best of your knowledge, the only broker or finder involved in obtaining a subtenant for the Premises. You hereby agree to indemnify and hold the Agency, MB, the City of Miami Beach, and their respective affiliates, agents, and employees, harmless from and against any liability or expense, including reasonable attorneys' fees, arising directly or MI990690.016 Gables Professional Realty, I,... Page 3 indirectly out of any person claiming to have acted with, bY, or through you as a broker, co-broker, subagen~ or finder in connection with the Sublease and the transactions contemplated thereunder. 7. If you should deal, or in any way communicate with, any other broker or finder in connection with the Premises (including without limitation Mayer Development Group, Inc.), such broker or finder shall be deemed to be a co-broker. You agree that MB shall not be liable for the payment of any Commission or other amount whatsoever to any eo-broker, it being expressly recognized and agreed that ME shall be Obligated only for a single Commission payable to you pursuant to this Agreement In such even~ you shall be responsible for payment of a commission or fee to the co-broker pursuant to separate agreement between you and the co-broker, and you hereby indemnify and hold the Agency, MS, the City of Miami Beach, and their respective affiliates, agents, and employees harmless from and against any liability or expense, including reasonabie attomeys' fees, arising directly or Indirectly out of any claim brought by such co-broker. 8. You hereby represent that you are a dUly licensed real estate broker and will remain so throughout the receipt of any commission. 9. This letter agreement is the entire agreement and understanding between MB and you, and there are no additional agreements or understandings of any kind, either wlitten or oral, which relate to this agreement This agreement supersedes all prior agreements relating to the subject matter hereof. This agreement may be amended or waived only by an instrument in writing signed by the party against whom the enforcement of such amendment or waiver is sought You may not assign any of your rights under this agreement without the prior written consent of MB and the Agency. This agreement shall be construed in accordance with and govemed by the laws of Rorida. Please confirm your agreement to the foregoing by signing the enclosed copies of this letter in the space provided beiow and retuming them to the undersigned. Very truly yours. G'; Malino President Agreed To: GABL.ES PR ~: er Cainzos Title: President Dale: Auqust 17. 1999 MI990690.016