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EXHIBIT 10.4
ROSEVILLE SITE
SUBLEASE AGREEMENT
This Sublease is made effective January 1, 1996, by S&D Land Holdings,
Inc., a Minnesota corporation ("Sublandlord"), and Famous Dave s of
Minneapolis, Inc., a Minnesota corporation ("Subtenant").
RECITALS:
A. S&D Land Holdings, Inc. ( S&D ) has assumed the obligations
of Lessee under that certain Agreement of Lease dated November 29, 1972 and
Tenant under that certain Agreement Concerning Sublease dated March
19, 1987 (hereinafter, collectively Lease ). H. Richard Knutson and Jane
E. Knutson are the fee owners and Landlords ( Owner ) under said Lease
covering the real estate located at 2131 North Snelling Avenue in the City of
Roseville, Ramsey County, Minnesota ( Property ).
B. A restaurant building and parking lot ( Improvements ) are located
upon the Property (together the Property and Improvements are referred
to as Premises ).
C. Sublandlord desires to sublease the Premises to Subtenant
and Subtenant desires to sublease the Premises from Sublandlord.
NOW, THEREFORE, the parties agree as follows:
1. Lease Agreement. This Sublease incorporates all of the terms and
conditions of the Lease and Subtenant shall abide by all of the terms
thereof. In the event the terms and conditions of the Lease are inconsistent
with the Sublease, the Sublease shall control, provided however in no event
shall the obligations of the Subtenant under this Sublease be less than the
obligations of Sublandlord under the Lease. This Sublease is subject to all
terms, conditions and requirements of the Lease. Except as otherwise
provided in this Sublease, all defined terms in the Lease shall have the
same meaning in this Sublease. The terms and conditions of the Lease shall
be construed and apply to this Sublease as though the Landlord under the
Lease were the Sublandlord under this Sublease and the Tenant under the
Lease were the Subtenant under this Sublease. Sublandlord shall have all of
the rights and remedies against the Subtenant that the Landlord has against
the Sublandlord. Subtenant shall indemnify and hold Sublandlord harmless
from and against all liability arising out of the use and/or possession of
the Premises by the Subtenant and any violation of the Lease or this
Sublease by Subtenant. Subtenant represents that it has read the Lease and
is familiar with the terms and conditions thereof.
2. Sublease Agreement. Sublandlord hereby subleases the Premises to
Subtenant and Subtenant hereby subleases the Premises from Sublandlord subject
to the terms and conditions contained herein.
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3. Term. The term of this Sublease shall commence January 1, 1996
(Commencement Date ), and unless earlier terminated or extended as provided
herein, and shall terminate on May 31, 2003 ( Initial Term ).
4. Renewal Term.
a. Sublandlord shall exercise its option to extend the Third
Extended Term in accordance with the provisions contained in Article 3 of
the Agreement of Lease.
b. Subtenant has the right to extend the Sublease for one (1) five
year term ( Renewal Term ) by giving Sublandlord at least four hundred thirty
(430) days advance written notice ( Renewal Notice ) of its election to so
extend. In such event, Sublandlord shall immediately exercise its option to
extend the Fourth Extended Term in accordance with the provisions contained in
Article 3 of the Agreement Concerning Sublease.
5. Rent.
a. Subtenant will pay rent of Six Thousand Eight Hundred Fifty
dollars ($6,850) per month ( Rent ) to Sublandlord commencing on the
Commencement Date and payable in advance on the first day of each month
thereafter during the first Sublease year. Rent shall be increased on
January 1, 1997 and each succeeding January 1st thereafter until the
expiration of the Initial Term or any Renewal 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 Sublease, 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.
6. Additional Rent.
a. Subtenant agrees to pay all Rent required to be paid under
the Lease in the amounts and at the times specified therein;
b. Subtenant 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
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connection with the operation or maintenance of the Premises (the amount
specified in this section being referred to as Additional Rent ).
7. Use.
a. Subtenant may use and occupy the Premises solely for
restaurant/entertainment purposes and for no other purpose unless
Subtenant has first obtained Sublandlord s written consent. Subtenant
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").
b. Sublandlord, 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.
8. Assignment and Subletting.
a. There shall be no Assignment or Subletting of the Premises by
Subtenant without in each case, obtaining the prior written consent of
Sublandlord, which consent may be granted or withheld in Sublandlord's sole
discretion.
b. Sublandlord shall have the right to transfer and assign, in
whole or in part, all of its rights and obligations hereunder.
9. Maintenance and Repair.
a. Subtenant shall, at all time during the term of this
Sublease, 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.
Subtenant shall repair and pay for any destruction caused by any act or
omission of Subtenant or Subtenant's agents, employees, invitees, licensees
or visitors, but shall not be obligated to pay for destruction to the
Premises caused by the negligence of Sublandlord, its agents or employees.
b. Subtenant agrees to maintain, at Subtenant'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 Sublease, to surrender the
same with all improvements in the same order and condition in which they
were on the Commencement Date, or in such better condition as they may
thereafter be put, except for ordinary wear and tear and destruction by insured
casualty.
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c. In the event Subtenant fails to make the repairs or maintain
the Premises as required hereunder, Sublandlord may make such repairs or
perform such maintenance items at the expense of Subtenant which
expense shall be collected as Additional Rent.
10. Alterations; Signs; Equipment.
a. Subtenant 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 Sublandlord 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 Sublandlord.
b. Upon completion of any alterations, decorations, additions or
improvements, Subtenant shall deliver to Sublandlord 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. Subtenant shall
indemnify, defend (at Sublandlord's request and with counsel approved by
Sublandlord) and hold Sublandlord 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 Subtenant 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, Subtenant shall repair or cause to
be repaired at its expense all damage caused by any of its contractors,
subcontractors or their employees or agents. Subtenant shall reimburse
Sublandlord for any costs incurred by Sublandlord to repair any damage
caused by any of Subtenant's contractors. Subtenant shall also
reimburse Sublandlord upon demand for any costs Sublandlord may incur to
have an engineer review all mechanical, structural, electrical, plumbing and
life safety systems installed by any of Subtenant's contractors.
c. All alterations, decorations, additions or improvements
in or to the Premises made by Subtenant shall become the property of
Sublandlord upon the expiration or termination of this Sublease and shall
remain upon and be surrendered with the Premises as a part thereof without
disturbance or injury, unless Sublandlord requires Subtenant to demolish the
Improvements at Subtenant's sole cost and expense, in which event Subtenant
shall demolish the same prior to the expiration or termination of this
Sublease and shall repair any damage to the Property caused thereby.
d. Subtenant 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 Sublandlord, which consent shall not be unreasonably withheld
or delayed. All signage approved by Sublandlord shall be in conformance
with all Legal Requirements.
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11. 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, Subtenant's
obligations to pay Rent and Additional Rent shall abate from the date of
such destruction, and either Sublandlord or Subtenant shall have the right to
terminate this Sublease 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
Sublease shall not terminate, and Subtenant 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 Rent following such destruction. In the event that
Subtenant fails to complete the necessary repairs or rebuilding within one
hundred eighty (180) days from the date of the destruction (force majeure
excepted), Sublandlord may at its option terminate this Sublease by
delivering written notice of termination to Subtenant, whereupon all rights
and obligations under this Sublease shall cease to exist.
c. Insurance. Subtenant 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 Subtenant.
Sublandlord and Owner shall be named as an additional loss payee with respect
to the insurance described herein.
Subtenant 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 Two Million dollars ($2,000,000)
combined single limit provided Subtenant shall carry such greater limits of
coverage as Sublandlord may deem reasonable from time to time. Sublandlord
and Owner shall be named as an additional insured on Subtenant's policy.
Subtenant shall deliver to Sublandlord 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 Sublandlord and Owner before cancellation or
alteration. Subtenant shall deliver to Sublandlord and Owner certificates
evidencing maintenance of the insurance required herein.
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e. Waiver of Subrogation. Sublandlord and Subtenant 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 Sublandlord or Subtenant and their
agents, officers and employees. Subtenant 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.
12. 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
Subtenant for the purposes for which they were used immediately before the
taking, this Sublease 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"). 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 Sublease will end on the Ending Date as to the part of the Premises that
is taken, (ii) 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, (iii) at its cost, Subtenant 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 Sections 9 and 10, (iv) upon the completion of restoration according
to clause (iv), Sublandlord will pay Subtenant the lesser of the net award
made to Sublandlord on account of the taking (after deducting from the
total award, attorney's , appraiser's and other costs incurred in connection
with obtaining the award, and amounts paid to the holders of mortgages
affecting the Premises) or Subtenant's actual out-of-pocket cost of
restoring the Premises, and (v) Sublandlord will keep the balance of the net
award.
c. Subtenant's Award. In connection with any taking subject to
subparagraph (a) or (b), Subtenant 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 Subtenant was entitled to remove,
and moving expenses) only so long as Subtenant's award does not diminish or
otherwise adversely affect Sublandlord's award.
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d. Allocation of an Award for a Total Taking. If this
Sublease 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, Sublandlord will be reimbursed for its attorneys'
fees, appraisal fees, and other costs incurred in prosecuting the claim for
an award;
ii. Second, Sublandlord will be paid for lost Rent and
Additional Rent and the value of the reversion (excluding any future
Renewal Term) as of the Ending Date;
iii. Third, Subtenant will be paid its adjusted book value
as of the date of the taking of Subtenants 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
Sublandlord and Subtenant.
13. Default.
a. Any one of the following events shall constitute an event of
default ("Event of Default"):
i. Subtenant 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 Sublandlord;
ii. Subtenant shall violate or fail to perform any of the
other conditions, covenants or agreements herein made by Subtenant and such
default shall continue for thirty (30) days after notice from Sublandlord;
provided, however, that if the nature of such default is such that
Subtenant 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 Subtenant 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. Subtenant 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 Renewal Term
thereof; or
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iv. If (1) the interest of Subtenant under this Sublease
shall be levied upon under execution or other legal process, (2) any
petition shall be filed by or against Subtenant to declare Subtenant bankrupt
or to delay, reduce or modify Subtenant's debts or obligations, (3)
Subtenant shall be declared insolvent according to law, or (4) any assignment
of Subtenant's property shall be made for the benefit of creditors, or
a receiver or trustee is appointed for Subtenant or its property (provided
that no such levy, execution, legal process or petition filed against
Subtenant shall constitute a breach of this Sublease if Subtenant
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 Subtenant is a partnership or other entity and Subtenant
shall be dissolved or otherwise liquidated, except in connection with a
merger, consolidation or other reorganization resulting in continuation
of Subtenant's business substantially as previously conducted, then Sublandlord
may treat the occurrence of any one or more of the foregoing events as a
breach of this Sublease and thereupon, at Sublandlord'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. Sublandlord may terminate this Sublease 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), (ii) the
unpaid Rent and Additional Rent earned at the time of termination, plus
interest thereon at the then prevailing 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 Subtenant reasonably demonstrates
that Sublandlord 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 Subtenant to Sublandlord.
ii. Sublandlord may terminate Subtenant's right of
possession (without terminating this Sublease) and may repossess the
Premises by unlawful detainer suit or otherwise, without thereby releasing
Subtenant from any liability hereunder and without demand or notice of any
kind to Subtenant and without terminating this Sublease, in which event
Sublandlord may, but shall be under no obligation to do so, relet the same
for the account of Subtenant for such rent and upon such terms as shall be
satisfactory to Sublandlord. For the purpose of such reletting
Sublandlord is authorized to decorate or to make any repairs, changes,
alterations or additions to the Premises as may be reasonably necessary or
desirable in Sublandlord's judgment, and (i) if Sublandlord 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 Sublandlord), the unpaid Rent and
Additional Rent due hereunder earned but unpaid at the time of reletting
plus interest thereon at the then prevailing interest rate, the cost of
recovering possession (including attorneys' fees,
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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 and Additional Rent provided for in this
Sublease to be paid, then (i) Subtenant shall pay to Sublandlord as
damages if the Premises are not relet, a sum equal to the amount of the Rent
and Additional Rent reserved in this Sublease 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 and Additional Rent earned at
the time of repossession plus interest thereon at the then prevailing
interest rate, and the costs incurred in any attempt by Sublandlord to
relet the Premises, or (ii) if the Premises have been relet, the Subtenant
shall satisfy and pay any such deficiency. Any such payments due Sublandlord
shall be made upon demand therefor from time to time and Subtenant agrees that
Sublandlord may file suit to recover any sums falling due under the terms of
this Section 13 from time to time. No delivery to or recovery by
Sublandlord of any portion due Sublandlord hereunder shall be any defense
in any action to recover any amount not theretofore reduced to judgment in
favor of Sublandlord, nor shall such reletting be construed as an election on
the part of Sublandlord to terminate this Sublease unless a written notice of
such intention be given to Subtenant by Sublandlord. Notwithstanding any
such reletting without termination, Sublandlord may at any time
thereafter elect to terminate this Sublease for such previous breach.
c. In the event of a breach by Subtenant of any of the
agreements, conditions, covenants or terms hereof, Sublandlord 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 Sublandlord in this Sublease are distinct,
separate and cumulative remedies, and no one of them, whether or not exercised
by Sublandlord, 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, Sublandlord and Subtenant 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
Sublease, the relationship of Sublandlord and Subtenant, Subtenant'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 Sublandlord, Sublandlord
shall be entitled to reimbursement upon demand of all attorneys' fees and
disbursements of counsel incurred by Sublandlord in connection with any
Event of Default, whether suit is initiated or not.
f. Sublandlord shall in no event be considered to be in default
of Sublandlord's obligations hereunder until the expiration of a
reasonable time after notice of default from Subtenant.
14. Sublandlord's Right to Cure Defaults; Late Payments.
If Subtenant defaults in the making of any payment, or in the doing of
any act herein required to be made or done by Subtenant, or does or
suffers any act prohibited herein, then Sublandlord may,
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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. Subtenant shall reimburse Sublandlord on demand
for all costs and expenses incurred by Sublandlord 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 then prevailing interest
rate from the date such sums are incurred by Sublandlord.
Notwithstanding the foregoing, the making of any such payment or the doing of
any such act by Sublandlord shall not operate to cure such default or to
estop Sublandlord from the pursuit of any remedy to which Sublandlord would
otherwise be entitled. If any installment of Rent or Additional Rent is not
paid by Subtenant 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 Sublandlord for
administrative costs; and (ii) the unpaid balance due Sublandlord shall bear
interest at the then prevailing interest rate from the date such installment
became due and payable to the date of payment thereof by Subtenant, and
such interest shall constitute Additional Rent hereunder which shall be
immediately due and payable.
15. Covenant of Quiet Enjoyment. Subject to other terms of this
Sublease, if Subtenant shall pay the Rent and Additional Rent and comply
with the terms and conditions of this Sublease to be performed by Subtenant,
Subtenant shall, during the term hereby created, freely, peaceably and
quietly occupy and enjoy the full possession of the Premises, provided
Sublandlord shall not be liable for any breach of such covenants resulting from
the actions or inaction of the Sublandlord.
16. Indemnification, Waiver and Release.
a. Indemnification. Subtenant shall indemnify and hold
Sublandlord, 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 Subtenant or
any person claiming under Subtenant; (ii) any activity, work or thing done or
permitted or suffered by Subtenant to be done in or about the Premises; (iii)
any acts, omissions or negligence of Subtenant or any person claiming under
Subtenant or the contractors, agents, employees, invitees or visitors of
Subtenant or any such person; (iv) any breach, violation or nonperformance
by Subtenant, any person claiming under Subtenant or the employees,
agents, contractors, invitees, or visitors of Subtenant, (v) any injury or
damage to the person, property or business of Subtenant, its employees,
agents, contractors, invitees, visitors, or any other person entering upon
the Premises under the express or implied invitation of Subtenant; or
(vi) any actions taken by Sublandlord to enforce the foregoing right
of indemnification against Subtenant, except if any of the above-listed
events are the result of the gross negligence or willful misconduct of
Sublandlord, its directors, officers, shareholders, agents or employees.
If any action or proceeding is brought against Sublandlord, its officers,
shareholders, agents or employees by reason of any such claim,
Subtenant, upon notice from Sublandlord, shall defend the claim at
Subtenant s expense with counsel reasonably satisfactory to Sublandlord.
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b. Waiver and Release. Subtenant waives and releases all claims
against Sublandlord, its officers, shareholders, agents and employees with
respect to all matters arising out of Subtenant's use and occupancy of the
Premises, except if the result of the gross negligence or wilful
misconduct of Sublandlord, its directors, officers, shareholders, agents
or employees.
17. 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 Sublease; (b)
states the commencement and termination dates; and (c) certifies (i) that
this Sublease 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 Sublease to be performed
have been satisfied (stating exceptions, if any), (iii) that no defenses or
offsets against the enforcement of this Sublease exist (or stating those
claimed): (iv) as to advance rent, if any, paid by Subtenant, (v) the date
to which Rent and Additional Rent have been paid, (vi) the amount of
security deposited with Sublandlord, and such other information as may
reasonably be requested. Persons receiving such estoppel certificates
shall be entitled to rely upon them.
18. Hazardous Waste. Subtenant shall not, without the prior written
consent of Sublandlord, 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 Sublease, "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 and Liability Act, as amended 42 U.S.C.
# 9601 et seq. ("CERCLA"), and the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. # 6901 et seq. ("RCRA"). To obtain Sublandlord's
consent, Subtenant shall prepare and Environmental Audit for Sublandlord'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. Subtenant 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 Sublandlord, in
its reasonable judgment, finds the Environmental Audit acceptable, then
Sublandlord shall deliver to Subtenant Sublandlord's written
consent. Notwithstanding such consent, Sublandlord may revoke its consent
upon: (1) Subtenant'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
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environmental safety, human health, or employee safety; (2) the Subtenant's
business operations pose or potentially pose a human health risk to other
tenants; or (3) the Subtenant expands its use, storage, or treatment of
any Hazardous Material(s) in a manner inconsistent with the safe operation of
a shopping center. Should Sublandlord consent in writing to Subtenant
bringing, using, storing or treating any Hazardous Material(s) in or upon the
Premises, Subtenant 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 Subtenant's
possession, use, storage, treatment or disposal of said Hazardous
Material(s). In addition, Subtenant represents and warrants to Sublandlord
that (1) Subtenant shall apply for and remain in compliance with any and
all federal, state or local permits in regard to Hazardous Materials; (2)
Subtenant 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)
Subtenant, within five (5) days of receipt, shall send to Sublandlord a copy
of any notice, order, inspection report, or other document issued by any
governmental authority relevant to the Subtenant's compliance status with
environmental or health and safety laws; and, (4) Subtenant shall remove from
the Premises all Hazardous Materials at the termination of this Sublease.
19. Governing Law. The provisions of this Sublease shall be governed
by the laws of the State of Minnesota. This Sublease 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.
20. Complete Agreement. This Sublease constitutes the entire
agreement between Sublandlord and Subtenant, and there are no other oral or
written agreements or inducements between them with respect to the Premises.
21. Counterparts. This Sublease may be executed in two or more
counterparts, each of which shall be an original but one of which shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Sublease
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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