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EXHIBIT 10.2
HIGHLAND PARK SITE
LEASE AGREEMENT
This Lease is made effective January 1, 1996, by S&D Land Holdings,
Inc., a Minnesota corporation ("Landlord"), and Famous Dave's of Minneapolis,
Inc., a Minnesota corporation ("Tenant").
RECITALS:
A. S&D Land Holdings, Inc. ("S&D") is the fee owner of
approximately 2.3 acres of vacant land legally described as ("Premises"):
Parcel 1: Lots 2, 3 and 4, Block 1, Hathaway Addition
Parcel 2: Lots 1, 2 and 3, Block 1, Oasis Addition to St. Paul
Parcel 3: Lots 1, 2 and 3, Block 1, Major's Addition, Ramsey
County, Minnesota and that part of the Northeasterly 1/2 of
Leland Street, vacated, lying between the extensions across
said street of the Northwesterly line of said Lot 1 and the
Southeasterly line of said Lot 3
Parcel 4: That part of vacated alley adjacent to Lot 3, Block
1, Oasis Addition to St. Paul, accruing thereto
which Premises is located in Ramsey County, Minnesota.
B. Landlord desires to lease the Premises to Tenant and Tenant
desires to lease the Premises from Landlord.
C. Tenant desires to construct a barbeque restaurant on the
Premises.
NOW, THEREFORE, the parties agree as follows:
1. Lease Agreement. Landlord hereby leases the Premises to
Tenant and Tenant hereby leases the Premises from Landlord subject to the terms
and conditions contained herein.
2. Term. The term of this Lease shall commence January 1, 1996
("Commencement Date") and, unless earlier terminated or extended as provided
herein, shall terminate on December 31, 2005 ("Initial Term").
3. Extended Term. Tenant shall have the option to extend the
term of this Lease for two terms of five (5) years ("Extended Term") by giving
Landlord written notice not later than (60) days prior to the expiration of the
Initial Term of this Lease so long as Tenant is not in default in the
performance of any covenant, agreement or condition hereunder. If Tenant fails
to give such 60 day
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written notice, it shall be deemed to have waived its right to the Extended
Terms and shall vacate the Premises at the expiration of the Initial Term.
4. Rent. Tenant will pay rent of $3,741.66 per month ("Rent") to
Landlord commencing on the Commencement Date and payable in advance on the
first day of each month thereafter during the first Lease year. Rent shall be
increased on January 1, 1997 and each succeeding January 1st thereafter until
the expiration of the Initial Term or any Extended Term according to the
following computation:
Each January 1st, Rent for such calendar year will be
increased (but not decreased) by the percentage difference
between the Consumer Price Index published by the Bureau of
Labor Statistics of the United States Department of Labor,
U.S. City Average, All items and Major Group Figures for Urban
Wage Earners and Clerical Workers (1982-84=100) ("CPI") for
the preceding month of December and the CPI for the base year.
For purposes of this Lease, the base year is 1995 ("Base
Year") and the price index for the Base Year shall mean the
average of the monthly indexes for each of the twelve months
(12) of the Base Year. In no event should the Rent payable in
any year be reduced during the next subsequent year due to a
decrease in the CPI.
5. Additional Rent. Tenant shall pay before penalty attaches,
all costs of maintenance, repairs, utilities, real estate and any other taxes,
insurance and any and all other expenses necessary in connection with the
operation or maintenance of the Premises ("Additional Rent").
6. Development and Use of Premises.
a. Tenant may construct and develop the Premises into a
restaurant/entertainment facility ("Improvements") at Tenants sole cost and
expense and in accordance with all Legal Requirements. Construction of the
Improvements shall not commence until Landlord has approved the plans and
specifications thereof. Landlord shall proceed with diligence to review the
plans and specifications and immediately notify Tenant of its approval or
disapproval. Tenant, at its cost and expense, shall obtain Builders Risk and
workers compensation insurance during construction of the Improvements. Tenant
shall comply with the requirements set forth in Section 9 in connection with
construction of Improvements.
b. Tenant may use and occupy the Premises solely for
restaurant/entertainment purposes and for no other purpose unless Tenant has
first obtained Landlord's written consent. Tenant shall not use or occupy the
Premises for any unlawful purpose, and will comply with all present and future
laws, statutes, ordinances, orders, rules, codes, regulations, decrees and
requirements of all governmental units (including any agency, department,
commission, board, bureau or subdivision thereof) having jurisdiction over the
Premises (collectively "Legal Requirements").
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c. Landlord, its agents, contractors or employees may
enter the Premises at reasonable hours to inspect the Premises and at any time
in response to an emergency.
7. Assignment and Subletting.
a. There shall be no Assignment or Subletting of the
Premises by Tenant without in each case, obtaining the prior written consent of
Landlord, which consent may be granted or withheld in Landlord's sole
discretion.
b. Landlord shall have the right to transfer and assign,
in whole or in part, all of its rights and obligations hereunder.
8. Maintenance and Repair.
a. Tenant shall, at all time during the term of this
Lease, at its sole cost and expense, keep and maintain the Premises (including
without limitation all Improvements, fixtures, and equipment on the Premises)
in good order, repair and condition, and will make all repairs and replacements
including, but not limited to heating, ventilating and air conditioning
systems, structural components of the Improvements, down spouts, fire sprinkler
system, dock bumpers, lawn maintenance, pest control and extermination, and
trash pick-up and removal. Tenant shall repair and pay for any destruction
caused by any act or omission of Tenant or Tenant's agents, employees,
invitees, licensees or visitors, but shall not be obligated to pay for
destruction to the Premises caused by the negligence of Landlord, its agents or
employees.
b. Tenant agrees to maintain, at Tenant's sole cost and
expense all Improvements, fixtures and equipment installed in the Premises; to
use the Premises in a prudent and orderly manner; to suffer no waste or injury
to the Premises or any Improvements or fixtures therein; and at the expiration
or other termination of this Lease, to surrender the same with all Improvements
in first class condition, except for ordinary wear and tear and destruction by
insured casualty.
c. In the event Tenant fails to make the repairs or
maintain the Premises as required hereunder, Landlord may make such repairs or
perform such maintenance items at the expense of Tenant which expense shall be
collected as Additional Rent.
9. Alterations; Signs; Equipment.
a. Tenant will not make or permit anyone to make any
alterations, decorations, additions or improvements, structural or otherwise,
in or to the Premises without first obtaining the prior written consent of
Landlord which consent shall not be unreasonably withheld or delayed. All
alterations, decorations, additions or improvements shall be made in accordance
with all Legal Requirements and insurance guidelines and shall be performed in
a good and workmanlike manner by contractors approved by Landlord.
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b. Upon completion of any alterations, decorations,
additions or Improvements, Tenant shall deliver to Landlord evidence of
payment, contractors' affidavits and full and final lien waivers for all labor,
services, or materials performed or supplied in connection with such
alteration, decoration, addition or Improvement. Tenant shall indemnify,
defend (at Landlord's request and with counsel approved by Landlord) and hold
Landlord harmless from and against all losses, costs, damages, claims,
liabilities, causes of action and expenses (including attorneys' fees and
disbursements, whether suit is commenced or not) arising out of or relating to
any alterations, decorations, additions or Improvements that Tenant or any of
its contractors make to the Premises, including any occasioned by the filing of
any mechanic's, material supplier's, construction or other liens or claims (and
all costs or expenses associated therewith) asserted, filed or arising out of
any such work. Without limiting the generality of the foregoing, Tenant shall
repair or cause to be repaired at its expense all damage caused by any of its
contractors, subcontractors or their employees or agents. Tenant shall
reimburse Landlord for any costs incurred by Landlord to repair any damage
caused by any of Tenant's contractors. Tenant shall also reimburse Landlord
upon demand for any costs Landlord may incur to have an engineer review all
mechanical, structural, electrical, plumbing and life safety systems installed
by any of Tenant's contractors.
c. All alterations, decorations, additions or
Improvements in or to the Premises made by Tenant shall become the property of
Landlord upon the expiration or termination of this Lease and shall remain upon
and be surrendered with the Premises as a part thereof without disturbance or
injury, unless Landlord requires specific items thereof to be removed by Tenant
at Tenant's sole cost and expense, in which event Tenant shall remove the same
prior to the expiration or termination of this Lease and shall repair any
damage caused thereby.
d. Tenant shall not place or maintain any sign,
advertisement or notice on any part of the outside of the Premises or any area
visible from outside the Premises, without first obtaining the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. All signage approved by Landlord shall be in conformance with all
Legal Requirements.
10. Casualty and Insurance.
a. Substantial Destruction. If the Premises should be
totally destroyed by fire or other casualty so that rebuilding cannot
reasonably be completed within ninety days after such destruction, Tenant's
obligations to pay Rent and Additional Rent shall abate from the date of such
destruction and either Landlord or Tenant shall have the right to terminate
this Lease by giving written notice thereof to each other within thirty (30)
days after the date of such destruction.
b. Partial Destruction. If the Premises should be
partially damaged by fire or other casualty, and rebuilding or repairs can
reasonably be completed within ninety days from the date of the destruction
(without taking into account the availability of funds or insurance proceeds),
this Lease shall not terminate, and Tenant shall at its sole risk and expense
proceed with reasonable diligence to rebuild or repair the building or other
improvements to substantially the same condition in which they existed prior to
the destruction. There shall be no abatement of Rent or Additional
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Rent following such destruction. In the event that Tenant fails to complete
the necessary repairs or rebuilding within one hundred eighty (180) days from
the date of the destruction (force majeure excepted), Landlord may at its
option terminate this Lease by delivering written notice of termination to
Tenant, whereupon all rights and obligations under this Lease shall cease to
exist.
c. Insurance. Tenant shall maintain at its expense
standard fire and extended coverage, or "all risk" policy of insurance covering
one hundred percent (100%) replacement cost on (i) the Premises, (ii) all of
its personal property, including removable trade fixtures, located in the
Premises and (ii) all of the Improvements and any improvements (including
fixtures) made by, for or on behalf of Tenant. Landlord shall be named as an
additional loss payee with respect to the insurance described herein.
Tenant shall maintain commercial general liability occurrence
policy insurance with the premiums thereon fully paid on or before the due
dates which affords minimum protection (which may be affected by primary and/or
excess coverage) of not less than $2,000,000 combined single limit provided
Tenant shall carry such greater limits of coverage as Landlord may deem
reasonable from time to time. Landlord shall be named as an additional insured
on Tenant's policy. Tenant shall deliver to Landlord certificates evidencing
maintenance of the insurance required herein.
d. Insurance Carrier. Any insurance required under this
Section shall be issued by a company authorized to do business in the State of
Minnesota and having an A.M. Best & Company, Inc. rating of A or higher and a
financial size category of not less than X and shall require thirty (30) days
advance notice to Landlord before cancellation or alteration. Tenant shall
deliver to Landlord certificates evidencing maintenance of the insurance
required herein.
e. Waiver of Subrogation. Landlord and Tenant each
hereby waive and release each other from any loss or damages arising from any
cause covered by insurance against each other, their agents, officers and
employees, by any reason, regardless of cause or origin, including the
negligence or willful misconduct of Landlord or Tenant and their agents,
officers and employees. Tenant agrees to immediately give its insurance
company which has issued policies of insurance covering all risk of direct
physical loss, written notice of the terms of the mutual waivers contained in
this section and to have the insurance policy properly endorsed, if necessary,
to prevent the invalidation of the insurance coverages by reason of the mutual
waivers.
11. Condemnation.
a. Total Taking. If, by exercise of the right of
eminent domain or by conveyance made in response to the threat of the exercise
of that right (in either case a "taking"), all of the Premises are taken or if
so much of the Premises are taken that the Premises (even if the restorations
described in subparagraph (b) were to be made) cannot be used by Tenant for the
purposes for which they were used immediately before the taking, this Lease
will end on the earlier of the vesting of title to the Premises in the
condemning authority, or the taking of possession of the Premises by the
condemning authority (in either case the"Ending Date"). If this Lease ends
according to this
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subparagraph (a), prepaid rent will be appropriately prorated to the Ending
Date. The award in a taking subject to this subparagraph (a) will be allocated
according to subparagraph (d).
b. Partial Taking. If, after a taking, so much of the
Premises remains that the Premises can be used for substantially the same
purposes for which they were used immediately before the taking, (i) this Lease
will end on the Ending Date as to the part of the Premises that is taken, (ii)
prepaid rent will be appropriately allocated to the part of the Premises that
is taken and prorated to the Ending Date, (iii) beginning on the day after the
Ending Date, Rent for so much of the Premises as remains will be reduced in the
proportion of the floor area of the building remaining after the taking to the
floor area of the building before the taking, (iv) at its cost, Tenant will
restore so much of the Premises as remains to a sound architectural unit
substantially suitable for the purposes for which they were used immediately
before the taking, using good workmanship and new first class materials, all
according to Section 9, (v) upon the completion of restoration according to
clause (iv), Landlord will pay Tenant the lesser of the net award made to
Landlord on account of the taking (after deducting from the total award,
attorneys', appraisers' and other costs incurred in connection with obtaining
the award, and amounts paid to the holders of mortgages affecting the Premises)
or Tenant's actual out-of-pocket cost of restoring the Premises, and (vi)
Landlord will keep the balance of the net award.
c. Tenant's Award. In connection with any taking
subject to subparagraph (a) or (b), Tenant may prosecute its own claim by
separate proceedings against the condemning authority for damages legally due
to it (such as the loss of fixtures that Tenant was entitled to remove, and
moving expenses) only so long as Tenant's award does not diminish or otherwise
adversely affect Landlord's award.
d. Allocation of an Award for a Total Taking. If this
Lease ends according to subparagraph (a), the condemnation award will be paid
in the order in this subparagraph to the extent it is sufficient:
i. First, Landlord will be reimbursed for its
attorneys' fees, appraisal fees, and other costs incurred in prosecuting the
claim for an award;
ii. Second, Landlord will be paid for lost Rent
and the value of the reversion (excluding any future Extended Terms) as of the
Ending Date;
iii. Third, Tenant will be paid its adjusted book
value as of the date of the taking of its improvements (excluding trade
fixtures) made to the Premises. In computing its adjusted book value,
improvements will be conclusively presumed to have been depreciated or
amortized for federal income tax purposes over their useful lives with a
reasonable salvage value;
iv. Fourth, the balance will be divided equally
between Landlord and Tenant.
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12. Default.
a. Any one of the following events shall constitute an
event of default ("Event of Default"):
i. Tenant shall fail to pay any installment of
Rent and/or Additional Rent as herein provided, and such default shall continue
for a period of five (5) days after notice from Landlord;
ii. Tenant shall violate or fail to perform any
of the other conditions, covenants or agreements herein made by Tenant and such
default shall continue for thirty (30) days after notice from Landlord;
provided, however, that if the nature of such default is such that Tenant can
cure the default, but not within thirty (30) days, then the Event of Default
shall be suspended for a period not in excess of thirty (30) additional days so
long as Tenant commences to cure the default within said thirty (30) day period
and thereafter diligently and continuously prosecutes the curing of the default
to completion with such additional thirty (30) day period, and so long as
continuation of the default does not create material risk to the Premises or to
persons using the Premises;
iii. Tenant shall fail to commence occupancy of
the Premises promptly upon the Commencement Date or shall vacate or abandon the
Premises or any portion thereof at any time during the Initial Term or any
Extended Terms thereof; or
iv. If (1) the interest of Tenant under this
Lease shall be levied upon under execution or other legal process, (2) any
petition shall be filed by or against Tenant to declare Tenant bankrupt or to
delay, reduce or modify Tenant's debts or obligations, (3) Tenant shall be
declared insolvent according to law, or (4) any assignment of Tenant's property
shall be made for the benefit of creditors, or a receiver or trustee is
appointed for Tenant or its property (provided that no such levy, execution,
legal process or petition filed against Tenant shall constitute a breach of
this Lease if Tenant shall vigorously contest the same by appropriate
proceedings and shall remove or vacate the same within thirty (30) days from
the date of its creation, service or filing).
v. If Tenant is a partnership or other entity
and Tenant shall be dissolved or otherwise liquidated, except in connection
with a merger, consolidation or other reorganization resulting in continuation
of Tenant's business substantially as previously conducted, then Landlord may
treat the occurrence of any one or more of the foregoing events as a breach of
this Lease and thereupon, at Landlord's option, may have any one or more of the
following described remedies in addition to all other rights and remedies
provided at law or in equity.
b. If an Event of Default shall have occurred and be
continuing:
i. Landlord may terminate this Lease and
forthwith repossess the Premises and be entitled to recover as damages a sum of
money equal to the total of (i) the cost of recovering the Premises (including
attorneys' fees, disbursements of counsel and any costs of suit),
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(ii) the unpaid Rent earned at the time of termination, plus interest thereon
at the Interest Rate, (iii) the present value (discounted at the rate published
from time to time as the discount rate for the Federal Reserve Bank of
Minneapolis) of the balance of the Rent and/or Additional Rent for the
remainder of the Term less the present value (discounted at the same rate) of
the amount Tenant reasonably demonstrates that Landlord would in all likelihood
receive from leasing the Premises to another tenant for said period, taking
into account the cost of reletting, the then-current market conditions, the
time the Premises was vacant and other similar costs, and (iv) any other sum of
money and damages owed by Tenant to Landlord.
ii. Landlord may terminate Tenant's right of
possession (without terminating this Lease) and may repossess the Premises by
unlawful detainer suit or otherwise, without thereby releasing Tenant from any
liability hereunder and without demand or notice of any kind to Tenant and
without terminating this Lease, in which event Landlord may, but shall be under
no obligation to do so, relet the same for the account of Tenant for such rent
and upon such terms as shall be satisfactory to Landlord. For the purpose of
such reletting Landlord is authorized to decorate or to make any repairs,
changes, alterations or additions to the Premises as may be reasonably
necessary or desirable in Landlord's judgment, and (i) if Landlord shall fail
or refuse to relet the Premises, or (ii) if the same are relet and a sufficient
sum shall not be realized from such reletting (after first deducting therefrom,
for retention by Landlord), the unpaid Rent due hereunder earned but unpaid at
the time of reletting plus interest thereon at the Interest Rate, the cost of
recovering possession (including attorneys' fees, disbursements of counsel and
any costs of suit), all of the costs and expenses of such decorations, repairs,
changes, alterations and additions, the expense of such reletting and the cost
of collection of the rent accruing therefrom) to satisfy the Rent provided for
in this Lease to be paid, then (i) Tenant shall pay to Landlord as damages if
the Premises are not relet, a sum equal to the amount of the Rent reserved in
this Lease for such period or periods, plus the cost of recovering possession
of the Premises (including attorneys' fees and any costs of suit), the unpaid
Rent earned at the time of repossession plus interest thereon at the Interest
Rate, and the costs incurred in any attempt by Landlord to relet the Premises,
or (ii) if the Premises have been relet, the Tenant shall satisfy and pay any
such deficiency. Any such payments due Landlord shall be made upon demand
therefor from time to time and Tenant agrees that Landlord may file suit to
recover any sums falling due under the terms of this Section 12 from time to
time. No delivery to or recovery by Landlord of any portion due Landlord
hereunder shall be any defense in any action to recover any amount not
theretofore reduced to judgment in favor of Landlord, nor shall such reletting
be construed as an election on the part of Landlord to terminate this Lease
unless a written notice of such intention be given to Tenant by Landlord.
Notwithstanding any such reletting without termination, Landlord may at any
time thereafter elect to terminate this Lease for such previous breach.
c. In the event of a breach by Tenant of any of the
agreements, conditions, covenants or terms hereof, Landlord shall have the
right of injunction to restrain the same and the right to invoke any remedy
allowed by law or in equity whether or not other remedies, indemnities or
reimbursements are herein provided. The rights and remedies given to Landlord
in this Lease are
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distinct, separate and cumulative remedies, and no one of them, whether or not
exercised by Landlord, shall be deemed to be in exclusion of any of the others.
d. In the interest of minimizing the time and expense of
any litigation between the parties hereto, Landlord and Tenant each hereby do
waive the right to trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
and/or any claim of injury or damage, or for the enforcement of any remedy.
e. In addition to all other remedies of Landlord,
Landlord shall be entitled to reimbursement upon demand of all attorneys' fees
and disbursements of counsel incurred by Landlord in connection with any Event
of Default, whether suit is initiated or not.
f. Landlord shall in no event be considered to be in
default of Landlord's obligations hereunder until the expiration of a
reasonable time after notice of default from Tenant.
13. Landlord's Right to Cure Defaults; Late Payments.
If Tenant defaults in the making of any payment, or in the doing of
any act herein required to be made or done by Tenant, or does or suffers any
act prohibited herein, then Landlord may, but shall not be required to, make
such payment or do such act, or correct any damage caused by such prohibited
act and enter the Premises as appropriate in connection therewith. Tenant
shall reimburse Landlord on demand for all costs and expenses incurred by
Landlord in curing any such default plus a charge of ten percent (10%) of the
amount of such costs and expenses, together with interest thereon at the
Interest Rate from the date such sums are incurred by Landlord.
Notwithstanding the foregoing, the making of any such payment or the doing of
any such act by Landlord shall not operate to cure such default or to estop
Landlord from the pursuit of any remedy to which Landlord would otherwise be
entitled. If any installment of Rent is not paid by Tenant when due and
payable: (i) a one-time late charge in the amount of five percent (5%) of the
delinquent installment shall become immediately due and payable as compensation
to Landlord for administrative costs; and (ii) the unpaid balance due Landlord
shall bear interest at the Interest Rate from the date such installment became
due and payable to the date of payment thereof by Tenant, and such interest
shall constitute Additional Rent hereunder which shall be immediately due and
payable.
14. Covenant of Quiet Enjoyment. Subject to other terms of this
Lease, if Tenant shall pay the rent and comply with the terms and conditions of
this Lease to be performed by Tenant, Tenant shall, during the Term hereby
created, freely, peaceably and quietly occupy and enjoy the full possession of
the Premises, provided Landlord shall not be liable for any breach of such
covenants resulting from the actions or inaction of the Landlord.
15. Indemnification, Waiver and Release.
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a. Indemnification. Tenant shall indemnify and hold
Landlord, its officers, directors, shareholders, agents and employees harmless
from and against any and all demands, claims, fines, damages, losses,
liabilities, liens, judgments and expenses (including, without limitation,
attorneys' fees and court costs) incurred in connection with or arising from:
(i) the use or occupancy of the Premises by Tenant or any person claiming under
Tenant; (ii) any activity, work or thing done or permitted or suffered by
Tenant to be done in or about the Premises; (iii) any acts, omissions or
negligence of Tenant or any person claiming under Tenant or the contractors,
agents, employees, invitees or visitors of Tenant or any such person; (iv) any
breach, violation or nonperformance by Tenant, any person claiming under Tenant
or the employees, agents, contractors, invitees, or visitors of Tenant, (v) any
injury or damage to the person, property or business of Tenant, its employees,
agents, contractors, invitees, visitors, or any other person entering upon the
Premises under the express or implied invitation of Tenant; or (vi) any
actions taken by Landlord to enforce the foregoing right of indemnification
against Tenant, except if any of the above-listed events are the result of the
gross negligence or willful misconduct of Landlord, its directors, officers,
shareholders, agents or employees. If any action or proceeding is brought
against Landlord, its officers, shareholders, agents or employees by reason of
any such claim, Tenant, upon notice from Landlord, shall defend the claim at
Tenant's expense with counsel reasonably satisfactory to Landlord.
b. Waiver and Release. Tenant waives and releases all
claims against Landlord, its officers, shareholders, agents and employees with
respect to all matters arising out of Tenant's use and occupancy of the
Premises, except if the result of the gross negligence or wilful misconduct of
Landlord, its directors, officers, shareholders, agents or employees.
16. Mutual Estoppel. Either party may request from the other
party, an estoppel certificate to be executed in recordable form and to any
person designated in a written request which (a) ratifies this Lease; (b)
states the commencement and termination dates; and (c) certifies (i) that this
Lease is in full force and effect and has not been assigned, modified,
supplemented or amended (except by such writings as shall be stated), (ii) that
all conditions under this Lease to be performed have been satisfied (stating
exceptions, if any), (iii) that no defenses or offsets against the enforcement
of this Lease exist (or stating those claimed): (iv) as to advance rent, if
any, paid by Tenant, (v) the date to which Rent has been paid, (vi) the amount
of security deposited with Landlord, and such other information as may
reasonably be requested. Persons receiving such estoppel certificates shall be
entitled to rely upon them.
17. Hazardous Waste. Tenant shall not, without the prior written
consent of Landlord, cause or permit, knowingly or unknowingly, any Hazardous
Material (hereinafter defined) to be brought or remain upon, kept, used,
discharged, leaked, or emitted in or about, or treated at the Premises. As
used in this Lease, "Hazardous Material(s)" shall mean any hazardous, toxic or
radioactive substance, material, matter or waste which is or becomes regulated
by any federal, state or local law, ordinance, order, rule, regulation, code or
any other governmental restriction or requirement, and shall include asbestos,
petroleum products and the terms "Hazardous Substance" and "Hazardous Waste" as
defined in the Comprehensive Environmental Response, Compensation
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and Liability Act, as amended 42 U.S.C. Section 9601 et seq. ("CERCLA"), and
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section
6901 et seq. ("RCRA"). To obtain Landlord's consent, Tenant shall prepare and
"Environmental Audit" for Landlord's review. Such Environmental Audit shall
list: (1) the name(s) of each Hazardous Material and a Material Safety Data
Sheet (MSDS) as required by the Occupational Safety and Health Act; (2) the
volume proposed to be used, stored and/or treated at the Premises; (3) the
purpose of such Hazardous Material; (4) the proposed on-premises storage
location(s); (5) the name(s) of the proposed off-premises disposal entity; and
(6) an emergency preparedness plan in the event of a release. Additionally,
the Environmental Audit shall include copies of all required federal, state,
and local permits concerning or related to the proposed use, storage, or
treatment of any Hazardous Material(s) at the Premises. Tenant shall submit a
new Environmental Audit whenever it proposes to use, store, or treat a new
Hazardous Material at the Premises or when the volume of existing Hazardous
Materials to be used, stored, or treated at the Premises expands by ten percent
(10%) during any thirty (30) day period. If Landlord, in its reasonable
judgment, finds the Environmental Audit acceptable, then Landlord shall deliver
to Tenant Landlord's written consent. Notwithstanding such consent, Landlord
may revoke its consent upon: (1) Tenant's failure to remain in full compliance
with applicable environmental permits and/or any other requirements under any
federal, state, or local law, ordinance, order, rule, regulation, code or any
other governmental restriction or requirement (including but not limited to
CERCLA and RCRA) related to environmental safety, human health, or employee
safety; (2) the Tenant's business operations pose or potentially pose a human
health risk to other tenants; or (3) the Tenant expands its use, storage, or
treatment of any Hazardous Material(s) in a manner inconsistent with the safe
operation of a shopping center. Should Landlord consent in writing to Tenant
bringing, using, storing or treating any Hazardous Material(s) in or upon the
Premises, Tenant shall strictly obey and adhere to any and all federal, state
or local laws, ordinances, orders, rules, regulations, codes or any other
governmental restrictions or requirements (including but not limited to CERCLA
and RCRA) which in any way regulate, govern or impact Tenant's possession, use,
storage, treatment or disposal of said Hazardous Material(s). In addition,
Tenant represents and warrants to Landlord that (1) Tenant shall apply for and
remain in compliance with any and all federal, state or local permits in regard
to Hazardous Materials; (2) Tenant shall report to any and all applicable
governmental authorities any release of reportable quantities of any Hazardous
Material(s) as required by any and all federal, state or local laws,
ordinances, orders, rules, regulations, codes or any other governmental
restrictions or requirements; (3) Tenant, within five (5) days of receipt,
shall send to Landlord a copy of any notice, order, inspection report, or other
document issued by any governmental authority relevant to the Tenant's
compliance status with environmental or health and safety laws; and, (4) Tenant
shall remove from the Premises all Hazardous Materials at the termination of
this Lease.
18. Governing Law. The provisions of this Lease shall be governed
by the laws of the State of Minnesota. This Lease may not be amended except in
writing signed by all of the parties. No waiver of any provision hereunder
shall be effective unless in writing signed by the party waiving its rights.
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19. Complete Agreement. This Lease constitutes the entire
agreement between Landlord and Tenant, and there are no other oral or written
agreements or inducements between them with respect to the Premises.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease
Agreement as of the date first written above.
S&D LAND HOLDINGS, INC.,
a Minnesota corporation
By_______________________________
Its______________________________
FAMOUS DAVE'S OF MINNEAPOLIS, INC.,
a Minnesota corporation
By________________________________
Its_______________________________
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