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Filing# 157998216 E-Filed 09/23/2022 07:39:15 AM
IN THE CIRCUIT COURT OF
THE SEVENTEENTH JUDICIAL
CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
LRF1 CROSSROADS SQUARE, LLC,
Landlord/Plaintiff, CASE NO.
V.
ISLANDS IN THE PINES
RESTAURANT, LLC and AUDLEY
RUSSELL;
TenanVDefendants.
COMPLAINT FOR EVICTION AND DAMAGES
FOR BREACH OF COMMERCIAL LEASE
Plaintiff,LRF1 CROSSROADS SQUARE, LLC, a Delaware limited liability
company, sues Defendants, ISLANDS IN THE PINES RESTAURANT, LLC, a Florida
limited company, and
liability AUDLEY RUSSELL, and in support thereof, states as
follows:
GENERAL ALLEGATIONS
1. LRF1 CROSSROADS SQUARE, LLC, a Delaware company
limited liability
at
("Landlord"), all material times has been doing business in Broward County, Florida,
and has been the owner of the subjectproperly located at 160-162 North UniversityDrive
(Space Nos. 160 and 162), Pembroke Pines, Broward County, Florida 33024
("Premises").
2. ISLANDS IN THE PINES RESTAURANT, LLC ("Tenant"),at all material
times was a company doing business in
Florida limited liability Broward County, Florida,
and leased the Premises in Broward County, Florida.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/23/2022 07:39:13 AM.****
3. AUDLEY RUSSELL at
("Guarantor"), all material times was a resident of
Broward County, Florida.
4. As over this action, and
a result of the foregoing,this Court has jurisdiction
the venue is proper in Broward County pursuant to Sections 47.011 and 47.051, Florida
Statutes.
FACTS
5. Landlord owns the Premises.
6. Tenant obtained possession of the Premises as follows:
a. Landlord's predecessor in interest, United Investors Pembroke, Inc.
and Tenant's predecessor
("United"), in interest,Rickardo A. Lyn and
Cheleta D. Lyn ("Lyn"),entered into a certain lease dated June 22,
1999 ("Original
Lease");
b. The Lease was assigned by Lyn to Progressors Enterprise, LLC
("Progressors")by an Assignment and Assumption of Lease dated
November 24,2004 ("Assignment);
c. The Lease was assigned by Progressors to Tenant and amended by
a certain First Lease Amendment Agreement dated February 12,
2009 ("First
Amendment");
d. The Lease was further amended by a certain Second Lease
Amendment Agreement dated March 29, 2012 ("Second
Amendment");
e. The Lease was further amended by a certain Third Lease
Amendment Agreement dated September 28, 2015 ("Third
2
Amendment").
A copy of the Lease and Amendments are attached hereto as composite Exhibit 'LIA"
the "Lease").
(collectively
7. Equity One was the successor by merger to the original Iessor, United.
Landlord purchased the Premises from Equity One on or about November 9, 2018 and
assumed the Lease with Tenant.
8. Tenant agreed to pay Landlord rent in accordance with the Lease.
9. Tenant has breached the Lease failingto pay rent timely since August of
2021. Despite making some partialpayments, Tenant has remained in arrears over the
last year. Accordingly, Tenant owes past-due rent in the amount of $49,988.62 through
September of 2022. A copy of the Lease Ledger is attached as Exhibit "B."
10. Tenant's actions are a material breach of the Tenant's Lease.
11. On or about September 14, 2022, Landlord served Tenant with a 3-day
written notice via overnight deliveryand demanding payment of rent due or delivery of
possession of the Premises on or before September 19, 2022, but Tenant refused to do
either. A copy of the 3-day notice is attached as Exhibit "C."
12. As the Complaint,
of the date of filing Tenant has refused to pay rent or
vacate the Premises.
13. In total,Tenant owes Landlord past due rent in the amount of $49,988.62
through September 2022. Rent, includingmonthly pass throughs, sales tax and late fees,
will continue to accrue.
14. Ail conditions precedent to the bringing of this cause of action have been
satisfied,performed and/or waived.
3
15. Landlord has retained the undersigned law firm to represent itin this matter
and is obligated to pay them a reasonable fee for their services. Landlord is entitled to
reasonable attorney fees in accordance with §83.231, Florida Statutes, and pursuant to
the terms of the Lease.
COUNT I - EVICTION
16. Landlord re-allegesand incorporatesparagraphs 1 through 15 as though
fullyset forth herein.
17. This is an action for the eviction of a commercial tenant pursuant to Section
83.21, Florida Statutes.
18. Tenant's failure to pay rent as set forth above constitutes a material default
and breach of the Lease.
19. Pursuant to Section 16.02 of the Original Lease, as a result of Tenant's
material default and breach of the Lease, Landlord is entitled to evict Tenant from the
Premises and take possession of the Premises.
20. Landlord is entitled to eviction and recovery of possession of the Premises
pursuant to the Lease and Chapter 83 of the Florida Statutes.
WHEREFORE, Landlord, LRF1 CROSSROADS SQUARE, LLC, respectfully
requests this Court to conduct summary procedure and:
a) Enter an Order of Final Judgment for Possession of the Premises located
at 160-162 North UniversityDrive (Space Nos. 160 and 162), Pembroke
Pines, Florida, against Tenant, ISLANDS IN THE PINES RESTAURANT,
LLC, and ANY OTHER PERSONS IN POSSESSION;
b) Issue a Writ of Possession for the Premises;
4
c) Issue an award of reasonable attorneys'fees and costs incurred in this
action; and
d) For such other and further relief this Court deems just and equitable.
COUNT Il - BREACH OF COMMERCIAL LEASE
21. Landlord re-allegesand incorporates paragraphs 1 through 15 as though
fullyset forth herein.
22. This is an action for damages for breach of a commercial lease.
23. breached
Tenant has materially to
its obligations Landlord under the Lease
to pay rent as set
by failing forth above.
24. Tenant's failure to pay rent and related charges is a material breach of the
Lease.
25. Landlord has been harmed by Tenant's breach of the Lease.
26. Tenant owes Landlord $49,988.62 for past due rent. In addition,Landlord
declares all remaining rent under the Lease to be due and payable.The accelerated base
rent under the Lease, plus sales tax, is $133,044.53. The total amount due and owing to
Landlord from Tenant for arrears and future rent is $183,033.15, plus monthly pass
throughs and late fees.
WHEREFORE, Landlord, LRF1 CROSSROADS SQUARE, LLC, demands
judgment against ISLANDS IN THE PINES RESTAURANT, LLC, for compensatory
damages, pre-judgment interest,post-judgment interest,costs and reasonable attorneys'
fees, and for such other and further relief this Court deems justand equitable.
5
COUNT Ill- BREACH OF LEASE GUARANTEE
27. Landlord re-allegesand incorporatesparagraphs 1 through 15 and 21
through 26 as though fullyset forth herein.
28. This is an action for damages for breach of the commercial lease guarantee.
29. The Assignment which
included a guarantee ("Guarantee") was agreed to
A copy of the Guarantee
and executed by Audley Russell ("Guarantor"). is attached
hereto as Exhibit "D".
30. The Guarantee was ratified by Guarantor in the First,Second and Third
Amendments.
31. Guarantor has materiallybreached his obligationsto Landlord under the
Guarantee by failingto pay rent as set forth above.
32. Guarantor's failure to pay rent and late charges is a material breach of the
Guarantee.
33. Landlord has been harmed by Guarantor's breach of the Guarantee.
34. Guarantor owes Landlord for arrears and future rent in the sum of
$183,033.15, plus monthly pass throughs and late fees, which is due immediately and
payable to Landlord pursuant to the Guarantee.
WHEREFORE, Landlord, LRF1 CROSSROADS SQUARE, LLC, demands
judgment against AUDLEY RUSSELL, for compensatory damages, pre-judgment
interest,post-judgmentinterest,costs and reasonable attorneys'fees;
and for such other
6
and further relief this Court deems justand equitable.
Dated iEr.E
y of September, 2022.
1111???
this,
THEODORE D. ESTES, ESQ.
Florida Bar No. 600660
EDWARD F. BRUNICARDI, ESQ.
FloridaBar No. 055471
636 West Yale Street
Orlando, Florida 32803
MOD 426-9500
Fax: (407) 426-8030
E-Mail: tdestes@divineestes.com
ebrunicardi@divineestes.com
aweaver@divineestes.com
Attorney for Landlord/Plaintiff
7
'D
.0
SHOPPING CENTER LEASE CONTRACT
BY AND BETWEEN
I
UNITED INVESTORS PEMBROKE, INC.
LANDLORD
AND
RICKARDO LYN AND
CHELETA LYN
TENANT
AELBIO
A
,
EXHIBIT "A"
(,
D 0
LEASE CONTRACT SUMMARY
The followingis a summary of some of the provisionsof the Lease Contract attached hereto and made a
part hereof. In the event of a conflict between the
provisions of this Summary and the Lease Contract, the
provisions of the Lease Contract shall govern and control.
1. Landlord and UNI1ED INVESTORS PEMBROKE, INC.
Notice Address: 5847 San Felipe, Suite 850, Houston, Texas 77057-3008
2 Tenant: RICKARDO A. LYN AND CHELETA D. LYN
Trade Name: ISLANDS IN THE PINES, INC.
Tax ID or SS#: Rickardo A. Lyn 264-85-0125
Cheleta D. Lyn 263-99-9636
Notice Address: 661 N.W. 156th Avenue, Pembroke Pines, FL 33028 and
shopping center
premises
Tenant BillingAddress: 661 N.W. 156th Avenue, Pembroke Pines, FL 33028 and shopping center
premises
Owner Residence 661 N.W. 156th Avenue, Pembroke Pines, FL 33028
Address:
Telephone Number 954-450-2132
Current Business:
Fax Number: 954-450-2893
3. Lease Guarantor: ISLANDS WTHEPMES PESTAURANTIU.
Tax ID or SS#: 65- 09147M
Address: 661 NW 156 AVC , MDMKRP.NES,
Ft,33028
Telephone #:
954-450- 232
954-450- 2893
Fax Number:
4 Leased Premises: Approximate 1500 square footage as shown on Exhibit "A", located at,
SuitE#111 02. N.ORTXVNIVER?SITY-FNVE
5.
MbROIU 8.Nes,R.'33024
Tenant's Pro-Rata Share: Point Forty-Nine Percent (.49%) of Shopping Center, which currentlyincludes
an aggregate of 1,500 square feet of gross leasable area C'GLA"). Tenant's Pro-Rata Share shall be
modified from time to time to reflect any changes in the aggregate GLA ofthe
Shopping Center.
6 Lease Term: Sixty(60) months and any partialperiod followingCommencement Date.
I
-86130199
Commencement Datdi---'Di*-iiois6ssion
.
is
conveyed to Tenant. tent commencement on the sixtieth
(60th) day after Landlq:-dconveys possession to Tenant or the date lenantopens for business, whichever
occurssooner.
?<0**,f< GORWHMTMOMFJ
COM.DAH8@99
Termination Date: Sixt* (60) months after CotnmlncementDate.
4642HO4 81344
Holdovcr Rent: 150% of minimum percentage rent, common area payment, tax payment,
rent,
insurance payment, marketing
payment and mail payment payable for the last
Aua .1'k/90
month of the existingterm.
boAOB:.YZ.
XSGEONF
IEEGDEGNIE-CDYA,iGJLI',6
PRDrAG. Minimum Rent: $111,512.76 total Lease Contract Minimum Rents.
Bill
8/30-8/3,/99
BD/Ig
Payable in equal successive monthly installments as follows:
$112.91 $1,750.00 per month Year 1 8/31/00
8/30/99-
$ 1,750.OOper month
$1,837.50 per month Year 3 4/,/01-P/31/02
$ 1,929.38 per month
Year 4 9/1/02-8/3,/03
$2,025.85 per month Year 5 9/1/03-8/3,/04
8 Percentage Rent: A sum equal to (0%) of all "Gross Sales" (as defined in Section 4 02) in excess of
the "Breakpoint" during each Lease Year; pro-rated for any partial Lease Year. Lease Year shall be the
calendar year. Initial Breakpoint shall be $0.
9 Security Deposit: $5,250.00, of which $1,750.00 shall be applied to the first month's Minimum Rent
and additional charges.
10. Additional Charges (initialmonthly estimated payments per Section 22.02 ofthe Lease Contract:
Bil/AMG ?S.uR--5?E----030.3131/
Common Area t
Maintenance Payment: $178.75 per month ($1.43 x sf) 1154
Tax Payment: $181.25 per month ($1.45 x sf)
Insurance Payment: $77.50 per month ($ .62 x sf) 5.00
Water: $N/A per month
Trash: $N/A per month
Other: $N/A per month
11. Permitted Use: a full service. sit-down. takeout or deliveryCaribbean/American Restaurant and
for no other use. Tenant shall not use the Demised Premises as a fast food/quick service Italian Re§taurant:
12 Tenant Insurance
Coverage Required: $2,000,000.00
13. Late Charges: Ten cents ($0,10) for each One Dollar ($1.00) so past due (See Section 25.10)
14 Special Provisions: See Exhibit F for specialprovisions.
15. Renewal Term(s) Qn@ (llfive-ynrzo*timJSUC-Olw.- 8/31/09
7911/04-
9/I/04-3/I@ 2127 50
Renewal Rents: 5% annual increases.
O,/OS- 8/3406 2233.33-
Notice Required: Six (6)
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. THE WITHIN LEASE CONTRACT SHALL BECOME EFFECTIVE ONLY UPON EXECUTION AND DEL,VERY BY
ALL PARTIES HERETO ON OR BEFORE
INDEX TO LEASE CONTRACT
I-PREMISES
I.01 Demise of Premises
1.02 Measurement of Premises
Il-CONSTRUCTION WORK
2.01 Construction Work
III-TERM
3.01 Term and Commencement
3.02 Vested Rights
IV-RENTAL
4.01 Payment ofRental
4.02 Percentage Rental
4.03 Rentals to be paid without demand
V-UTILITIES
5.01 Utilities Provided to Premise
5.02 Utility Responsibility
Vl-USE
6.01 Use of Premise
6.02 Merchants Association/Marketing Fund
6.03 Tenant's Continuous Operation and Occupancy
6.04 Tenant's Trash and Rubbish
6.05 Landlord Required Key and Locking Devices
VII-COMMON AREA
7.01 Description of Common Area
7.02 Tenant's Business Within Lease Premises
7.03 Tenant Loading and Delivery of Products
7.04 Leased Premises and Common Area
Vlll-ASSIGNMENT & SUBLETT]NG
8.01 Assignment & Subletting
8.02 Tenant's Stock Transfer
8.03 No Waiver of Rights by Landlord
IX-REPAIR &MAINTENANCE
9.01 Landlord's Required Repairs
9.02 Tenant's Required Repairs
9.03 Surrender of Premises at Lease Termination
9.04 Landlord's Right to Inspect
9.05 Tenant to Keep Property Free of Liens
X-ADDITIONS & FIXTURES
10.01 Tenant Alterations
10 02 Removable Trade Fixtures
10.03 Taxes on Tenant's Leasehold Interest &Fixtures
XI-FIRE & DESTRUCTION of PREMISES
11.01 Damage and Destruction of Premises
11.02 Landlord's Rights
11.03 Continuation of Lease &
Reconstruction
XII-LIABILITY & INDEMNITY
0 0
12.0 I Tenant Indemnification of Landlord
12.02 Tenant's Required Property Insurance
12.03 Tenant's Required LiabilityInsurance
12.04 Tenant's Required Policy Administration
XIII-DIVERSION of SALES
13.01 Diversion of Sales
XIV-SECURITY DEPOSIT
14.01 Tenant's Required SecurityDeposit
XV-LANDLORD'S LIEN
15.01 Landlord's Lien
15.02 Landlord's Rights
XVI-DEFAULT, REMEDIES, & DETERMINATION of DAMAGE
I 6.01 Events of Default
16.02 Landlord's Remedies
16.03 Tenant's Liabilities
16.04 Tenant's Calculation ofGross Sales
16.05 Tenant's Remedies
16.06 Attorney's Fees
16.07 Landlord and Tenant Affiliates
XVII-NON-WAIVER
17.01 Non-Waiver
XVIII-LANDLORD-TENANT RELATION
18.01 Landlord-Tenant Relation
XIX-EMINENT DOMAIN
19.01 Eminent Domain
19.02 Landlord's Right
19.03 Condemnation Awards
I 9.04 Condemnation & Lease Termination
19.05 Voluntary Conveyance
XX-HOLDING OVER
20.01 Holder Rents and Other Charges
20.02 Notice to Terminate Holdover
20.03 Holdover Rental Distribution
XXI-LANDLORD'S MORTGAGEE
21.01 Subordination of Lease to Mortgage
21.02 Landlord's Mortgagee & Mortgage Defined
21.03 Landlord's Default
21.04 Landlord and Tenant Covenants
21.05 Estoppels and Notices
21.06 Landlord's Leasehold Interest Rights
XXII-ADD]TIONAL RENTS
22.01 Common Area Operating Costs, Taxes, & Insurance
22.02 Common Area, Tax, & Insurance Payment
22.03 Tenant Direct Payments
22.04 Rent Sales Tax
22.05 Landlord May Combine Related Properties
XXHI-NOTICE
23.01 Notice Addresses of Landlord and Tenant
XXIV-TENANT'S SIGNS
24.01 Tenant's Signs & Their Operation
..
0 0
XXV-TERMINOLOGY and MISCELLANEOUS
25.01 Lease Document Gender/Numbers Provisions
25.02 Landlord's Right to Entry
25.03 Counterclaims
25.04 Appointment of Receiver
25.05 Time is ofthe Essence
25.06 Independent Covenants
25.07 Consequential Damages
25.08 Location of ObligationPerformance
25.09 Rights & Obligations under an Assignment or Sublease
25. I0 Late Charges
25.11 Independent Covenant for Maintenance and Repair
25.12 Tenant Acceptance of Premises
25.13 Joint and Several Liabilityby Tenant Entities
25.14 Notice of Relocation
25.15 Landlord's Legal Status
XXVI-TENANT'S BANKRUPTCY
26.01 Tenant's Bankruptcy
26.02 Adequate Assurance by Tenant
26.03 Legal Lease Assignment
26.04 Real Property Definition for Bankruptcy
26.05 Constitution of Rent
26.06 Landlord's Right to Receive Rents
26.07 Lease Assignment
XXVII-ENTIRE AGREEMENT
27.01 Entire Agreement
EXECUTION BLOCKS
EXHIBITS:
EXHIBIT A SITE PLAN/PREMISES
EXHIBIT B CONSTRUCTION AGREEMENT - LANDLORD'S WORK
EXHIBIT C CONSTRUCTION AGREEMENT - TENANTS WORK
EXHIBIT D TENANT SIGN SPECIFICATIONS
EXHIBIT E HEATING AND AIR CONDITIONING MAINTENANCE PROVISIONS
EXHIBIT F SPECIAL PROVISIONS
ARTICLE XXIII - RIDER 1 OPTION TO RENEW
COMMENCMENT FORM
RADON GAS ADDENDUM
0 0
LEASE CONTRACT
THIS LEASE CONTRACT entered into by and between UNITED INVESTORS PEMBROKE, INC.,
with principal place of business in Houston, Harris County, Texas, hereinafter called Landlord and RICKARDO
LYN AND CHELETA LYN, hereinafter called Tenant.
WITNESSETH:
ARTICLE I
Premises
Section 1.0 ]. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord the leased
premises (the "Leased Premises") which shall be a portion of a building, which portion contains or will contain
approximately 1,500 square feet of floor area, situated or to be situated substantially in the location which is shown
outlined or hatched on the plat designated Exhibit "A", which is annexed hereto and incorporated by reference
herein andmade a part hereof for all purposes, such building to be constructed or being constructed on part of the
of property described in Exhibit "B", which is annexed hereto and incorporated by reference herein and
tract
made a part hereof for all purposes. The land described in Exhibit "B" (and any additional land from time to time
designated by Landlord) and any existing and future buildings, parking area, sidewalks, service area and other
improvements now existingor hereafter erected thereon are sometimes herein referred to as the "Shopping Center".
Landlord reserves the right to place in,under, over or through the Leased Premises pipes, wires, lines,and facilities
serving other areas of the Shopping Center provided such right is exercised in a manner which does not
unreasonably interfere with Tenant's conduct of its business at the Leased Premises.
Section 1.02. In determining the floor area of the Leased Premises, distances shall be measured from
the exterior face of walls and the centerline of all partitionwalls, which separate the Leased Premises
all exterior
from any interior area. Walls separating the Leased Premises from a mall area or corridor walls shall be deemed to
be exterior walls ofthe Leased Premises.
ARTICLE II
Construction Work
Section 2.01. The Leased Premises shall be constructed in accordance with the Construction Rider
attached hereto and incorporated by reference herein for all purposes.
ARTICLE III
Term
Section 3.01. The term of this Lease shall commence the date Landlord conveys possession. The Rent
Commencement Date ("RentCommencement Date") shall be sixty (60) days after tender of possession of the
Leased Premises to Tenant by Landlord, or (ii)on the date upon which Tenant opens for business in the Leased
Premises, whichever occurs sooner. The term of this Lease shall terminate on the last day of the sixtieth (60th) full
calendar month after its Rent Commencement Date, unless sooner terminated in accordance with the terms and
conditions hereinafter set forth. At the request of Landlord from time to time made, Tenant will execute one or more
memoranda or letters statingthe commencement and termination dates of the Lease. During the last ninety (90) days
of the lease term, Landlord shall have the right to place signs on the storefront or windows of or otherwise in the
Leased Premises advertisingit for rent.
Section 3.02. Notwithstanding the fact that the lease term will commence at a date subsequent to the
execution of this instrument by Landlord and Tenant, such parties intend that each shall have vested rights
immediately upon the signing of this instrument and that this instrument shall be fully binding and in full force and
effect from and after execution hereof by Landlord and Tenant. In the event that the lease term shall not have, in
fact,commenced within two (2) years from the date hereof (and if this Lease shall not theretofore have been
cancelled by Landlord as herein permitted), then, in addition to all the other rights and remedies of Landlord set
forth herein, this Lease shall thereupon be automatically null and void and of no further force and effect, and neither
party shall have any further obligation or liability
hereunder.
0 O
ARTICLE IV
Rental
Section 4.01. As "Minimum Rent", Tenant covenants and agrees to pay to Landlord, to its lockbox, in
Dallas, Texas, at P.O. Box 200144, Dallas, Texas 75320-0144 or at such other address as Landlord may from time
to time designate in writing, the sum of One Thousand Seven Hundred Fifty and 00/100 Dollars ($1,750.00) plus a
pro rata portion thereof for any partialmonth occurring at the commencement of the term of this Lease if such
commencement be other than the first day of a calendar month), such sum to be payable in equal monthly
installments of One Thousand Seven Hundred Fifty and 00/100 Dollars ($1,750.00) per month for the first Lease
Year, the sum of One Thousand Seven Hundred Fifty and 00/100 Dollars ($1,750.00) per month for the second
Lease Year, the sum of One Thousand Eight Hundred Thirty-Seven and 50/100 Dollars ($1,837.50) per month for
the third Lease Year, the sum of One Thousand Nine Hundred Twenty-nine and 38/100 Dollars ($1,929.38) for the
fourth Lease Year, and the sum of Two Thousand Twenty-six and 50/100 Dollars ($2,026.50) for the fifth Lease
Year. All such Minimum Rent payments shall be made due, and payable on the first day of each calendar month,
monthly in advance, for each and every month in the term of this Lease. Upon commencement of the term of this
Lease, Tenant will pay Landlord Minimum Rent for the first full calendar month of the lease term; but if the lease
term does not commence on the first day of a calendar month, Tenant will, in lieu of a full month's Minimum Rent,
pay in advance a pro rata part of such sum as Minimum Rent for such partialmonth.
Section 4.02.
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Tenant shall report to Landlord Tenant's annual Gross Sales. The term "Gross Sales" includes all
moneys or things of value received or receivable, including lease or rental revenue (without deductions for
uncollectibles)by Tenant, its sublessees, licensees or concessionaires or others, for merchandise sold or services
performed or business conducted (includinginterest, time-price differential, finance charges and service charges
on time-payment sales, credit sales or lay-a-way sales) itt about or from the Leased Premises (including, without
limitation, orders received in person or by mail, telephone or telegraph),including transactions in which delivery
is made customer at the Leased Premises but the order is taken elsewhere, transactions in which the order is
to the
taken at the Leased Premises but delivery is made elsewhere, receipts from mechanical and other vending
machines, deposits not refunded to purchasers, and revenues, fees, and/or commissions received from the sale of
lottery tickets. The term "Gross Sales" shall also include sales made.over or through the Internet (or similar facility)?
and filled from or through the Leased Premises and sales made over or through the Internet and filled from or
through a central distribution point located within 150 miles of the Leased Premises (a "CDP"), provided,however,
that if such sales are filled from or through such CDP and other stores affiliated with Tenant are also serviced from
or through the same CDP only an aliquot portion of such Internet sales shall be deemed allocated to the Leased
Premises for purposes of determining Gross Sales. "Aliquot portion" shall mean the ratio determined by diving
Gross Sales without regard to sales from or through the CDP by aggregate sale filled from or through such CDP.
The term "Gross Sales" shall not include (i)governmental excise or sales taxes added to the selling price of
the item and paid by the Tenant directly to the Government, or (ii)refunds or allowances to customers not in excess
of the originalsellingprice of the item, or (iii)transfers or exchanges of merchandise to another of Tenanfs stores
made in the regular course of Tenant's business and not for the purpose of avoiding consummation of a sale in the
Leased Premises, or (iv) returns to shippers or manufacturers, or (v) sales of Tenanfs "Removable Trade Fixtures
"as hereinafter defined) after use by Tenant in the Leased Premises. Under no circumstances shall there be
any deduction from Gross Sales by reason of Tenanfs being liable to pay any franchise tax, capital stock tax, income
tax or similar or dissimilar tax based upon Tenanfs income, capitalstructure, or profits.
All Gross Sales will be recorded either (i)through modern cash registersfrom which a cash receipt shall be
given to each customer for each purchase or (ii)in such other manner as may be approved in writing by Landlord.
Tenant shall accurately maintain full and adequate records and books of account on all business operations in or
about the Leased Premises. All books of account, records, daily cash register total slips,sales slips and Federal
income tax returns relatingto Tenant's operation in or about the Leased Premises will be retained by Tenant for a
period of three (3) years after preparation, and will be open to inspection by Landlord (or its representative)at all
reasonable times. Tenant shall also furnish Landlord copies of any financial statements of Tenant that are prepared
during the term of this Lease.
The term "Lease Year", as used herein, shall, in the case of the first Lease Year, mean the period which
commences with the date of commencement of the lease term and terminates on the la?tday of the calendar year in ?
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which the Lease Tenn commences. Thereafter, the term Lease Year shall mean calendar year.
The last Lease Year of the lease term shall be the period, which commences on January I of the year,
which the Lease terminates and ends on the Lease termination date.
I
Within days after the end of each Lease Year, Tenant will deliver to Landlord a statement
fifteen (15)
signed by Tenant (if Tenant is an individual),or a general partner of Tenant (if Tenant is a partnership) or a
responsible corporate officer ofTenant (ifTenant is a corporation) accuratelysettingforth the amount of Gross sales
S?eFeen;age-Re?
made during sueh each month, itemized in reasonable detail. a,+w#NenempeFaneeuelrtheFewi*h--par-any
Tenant will furnish to Landlord a
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foregoing-,Fe*Gie#&-Iis:Gof, accurately showing Gross Sales for the preceding Lease Year itemized in reasonable
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Section 4.03. All rent (includingboth Minimum Rent *) and other sums hereunder
provided to be paid by Tenant shall be due and payable by Tenant without demand, deduction, abatement or off-set
except as expressly provided herein. Rent shall be deemed past due if not received on or before its due date for any
reason whatsoever or if a rental payment is made by check, which is, returned for insufficient funds. Past due rent
and other past due payments shall bear interest from the due date at the rate of twelve percent (12%) per annum (or,
at Landlord's option, the highest non-usurious rate permitted by law) from the date due until paid.
All other sums and charges of whatsoever nature required to be paid by Tenant to Landlord pursuant to the
terms of this Lease (including,without limitation,all payments set fbrth in Article XXII, below entitled "Additional
Rent") constitute additional rent (whether or not same be designated "Additional Rent") and failure by Tenant to
timely pay such other sums or charges may be treated by Landlord as a failure by Tenant to pay Minimum Rent.
ARTICLE V
Utilities
Section 5.01. Tenant will at its own cost and expense pay for all water, sanitary sewer, gas, electricity
and other utilities used in the Leased Premises and and hold Landlord harmless from any charge or liability
will save
for same. Such payments shall be made directlyto the supplierof any utility separatelymetered (or sub-metered or
supplied) to the Leased Premises and on such equitable basis as may be determined by Landlord with respect to any
such utilities which are metered or shared by Tenant in common with other occupants of the Shopping Center.
Tenant will, upon request of Landlord, from time to time during the term hereof, furnish to Landlord copies of
Tenanfs water and sanitary sewer bills.
Section 5.02. No
interruption or malfunction of any utilityservices (including, without I imitation,
interruption of such as a result of the enactment or promulgation, regardless of the ultimate validity or
utilities
enforceability thereof, of any federal,state or local law, statute, ordinance, decree, order, guideline or regulation
now or hereafter enacted or promulgated by any governmental, quasi-governmental, regulatory or executive
authority) shall constitute an eviction or disturbance of Tenant's use and possession of the Leased Premises or a
breach by Landlord of any of its obligations hereunder or render Landlord liable for any damages (including,
without lim itation, consequential or special damages) or entitle Tenant to be relieved from any of its obligations
hereunder (including the obligation to pay rent) or grant Tenant any right of off-set or recoupment. In the event of
any such interruption of any such services, Landlord shall use reasonable diligence to restore such service in any
circumstances in which such interruptionis caused by Landlord's fault.
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ARTICLE VI
Use
Section 6.01. Tenant will use the Leased Premises solely for the following purpose: a full service, sit-
down. takeout or delivery Caribbean/American Restaurant and for no other use. Tenant shall not use the Demised
Premises as a fast food/quick service Italian Restaurant. Tenant will not use or permit use ofthe Leased Premises for
any other purpose without the written consent of Landlord. Such store will be advertised as and operated under the
name Islands in the Pines Restaurant, Inc. unless and until the majority of the stores Tenant (or its parent
corporation, if Tenant is a corporation) is now or hereafter so operating should change their names, in which event
the Leased Premises will be advertised as and operated under such new name. Tenant, at its own expense: will
comply with all Federal, State, municipal and other laws, codes, ordinances, rules and regulationsapplicable to the
Leased Premises and the business conducted therein by Tenant; will install,remove and alter such fixtures,
equipment and facilities in, and make such alterations to, the Leased Premises as may be necessary so to comply;
will comply with such regulations as Landlord may promulgate regarding sanitation, cleanliness and other matters
(not inconsistent with any other provision of this instrument), including without limitation removal of garbage,
trash and other waste; and will furnish and maintain an adequate number of fire extinguishersin good operating
condition as may be reasonably required by Landlord, and in any event not less than one such extinguisher
for each floor or level of the Leased Premises. Tenant will not engage in any activityor permit any nature of
construction by Tend or any other condition at the Leased Premises which would cause Landlord's fire and
extended coverage insurance to be canceled, or the rate therefor increased (or at Landiord's option will upon demand
pay any such increase);will comply with such safety recommendations (specifically but not limited to the storage,
handling, and the use of hazardous substances), and loss prevention and loss reduction recommendations as
Landlord or Landlord's insurance carriers (or both) may, from time to time, request.
The term "Hazardous Substances," as used in this lease shall mean pollutants, contam inants, toxic or
hazardous wastes, or any other substances, the removal of which is required, or the use of which is restricted,
prohibited or penalized by any "Environmental Law," which term shall mean any federal, state or local law or
ordinance relatingto pollutionor protection of the environment. Tenant hereby agrees that (i)no activity will be
conducted on the Premises that will produce any Hazardous Substance, except for such activities that are part of the
I ordinary course of Tenant's business activities (the "Permitted Activities"), provided said permitted Activities are
conducted in accordance with all Environmental Laws and have been approved in advance in writing by Landlord;
(ii) the Premises will not be used in any manner for the storage of any Hazardous Substances except for the
temporary storage of such materials that are used in the ordinary course of Tenant's business (the "Permitted
Materials") provided such Permitted Materials are properly stored in a manner and location meeting all
Environmental Laws and approved in advance by Landlord, (UD no portion of the Premises will be used
in writing
as a l
Preview
Filing# 157998216 E-Filed 09/23/2022 07:39:15 AM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA LRF1 CROSSROADS SQUARE, LLC, Landlord/Plaintiff, CASE NO. V. ISLANDS IN THE PINES RESTAURANT, LLC and AUDLEY RUSSELL; TenanVDefendants. COMPLAINT FOR EVICTION AND DAMAGES FOR BREACH OF COMMERCIAL LEASE Plaintiff,LRF1 CROSSROADS SQUARE, LLC, a Delaware limited liability company, sues Defendants, ISLANDS IN THE PINES RESTAURANT, LLC, a Florida limited company, and liability AUDLEY RUSSELL, and in support thereof, states as follows: GENERAL ALLEGATIONS 1. LRF1 CROSSROADS SQUARE, LLC, a Delaware company limited liability at ("Landlord"), all material times has been doing business in Broward County, Florida, and has been the owner of the subjectproperly located at 160-162 North UniversityDrive (Space Nos. 160 and 162), Pembroke Pines, Broward County, Florida 33024 ("Premises"). 2. ISLANDS IN THE PINES RESTAURANT, LLC ("Tenant"),at all material times was a company doing business in Florida limited liability Broward County, Florida, and leased the Premises in Broward County, Florida. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/23/2022 07:39:13 AM.**** 3. AUDLEY RUSSELL at ("Guarantor"), all material times was a resident of Broward County, Florida. 4. As over this action, and a result of the foregoing,this Court has jurisdiction the venue is proper in Broward County pursuant to Sections 47.011 and 47.051, Florida Statutes. FACTS 5. Landlord owns the Premises. 6. Tenant obtained possession of the Premises as follows: a. Landlord's predecessor in interest, United Investors Pembroke, Inc. and Tenant's predecessor ("United"), in interest,Rickardo A. Lyn and Cheleta D. Lyn ("Lyn"),entered into a certain lease dated June 22, 1999 ("Original Lease"); b. The Lease was assigned by Lyn to Progressors Enterprise, LLC ("Progressors")by an Assignment and Assumption of Lease dated November 24,2004 ("Assignment); c. The Lease was assigned by Progressors to Tenant and amended by a certain First Lease Amendment Agreement dated February 12, 2009 ("First Amendment"); d. The Lease was further amended by a certain Second Lease Amendment Agreement dated March 29, 2012 ("Second Amendment"); e. The Lease was further amended by a certain Third Lease Amendment Agreement dated September 28, 2015 ("Third 2 Amendment"). A copy of the Lease and Amendments are attached hereto as composite Exhibit 'LIA" the "Lease"). (collectively 7. Equity One was the successor by merger to the original Iessor, United. Landlord purchased the Premises from Equity One on or about November 9, 2018 and assumed the Lease with Tenant. 8. Tenant agreed to pay Landlord rent in accordance with the Lease. 9. Tenant has breached the Lease failingto pay rent timely since August of 2021. Despite making some partialpayments, Tenant has remained in arrears over the last year. Accordingly, Tenant owes past-due rent in the amount of $49,988.62 through September of 2022. A copy of the Lease Ledger is attached as Exhibit "B." 10. Tenant's actions are a material breach of the Tenant's Lease. 11. On or about September 14, 2022, Landlord served Tenant with a 3-day written notice via overnight deliveryand demanding payment of rent due or delivery of possession of the Premises on or before September 19, 2022, but Tenant refused to do either. A copy of the 3-day notice is attached as Exhibit "C." 12. As the Complaint, of the date of filing Tenant has refused to pay rent or vacate the Premises. 13. In total,Tenant owes Landlord past due rent in the amount of $49,988.62 through September 2022. Rent, includingmonthly pass throughs, sales tax and late fees, will continue to accrue. 14. Ail conditions precedent to the bringing of this cause of action have been satisfied,performed and/or waived. 3 15. Landlord has retained the undersigned law firm to represent itin this matter and is obligated to pay them a reasonable fee for their services. Landlord is entitled to reasonable attorney fees in accordance with §83.231, Florida Statutes, and pursuant to the terms of the Lease. COUNT I - EVICTION 16. Landlord re-allegesand incorporatesparagraphs 1 through 15 as though fullyset forth herein. 17. This is an action for the eviction of a commercial tenant pursuant to Section 83.21, Florida Statutes. 18. Tenant's failure to pay rent as set forth above constitutes a material default and breach of the Lease. 19. Pursuant to Section 16.02 of the Original Lease, as a result of Tenant's material default and breach of the Lease, Landlord is entitled to evict Tenant from the Premises and take possession of the Premises. 20. Landlord is entitled to eviction and recovery of possession of the Premises pursuant to the Lease and Chapter 83 of the Florida Statutes. WHEREFORE, Landlord, LRF1 CROSSROADS SQUARE, LLC, respectfully requests this Court to conduct summary procedure and: a) Enter an Order of Final Judgment for Possession of the Premises located at 160-162 North UniversityDrive (Space Nos. 160 and 162), Pembroke Pines, Florida, against Tenant, ISLANDS IN THE PINES RESTAURANT, LLC, and ANY OTHER PERSONS IN POSSESSION; b) Issue a Writ of Possession for the Premises; 4 c) Issue an award of reasonable attorneys'fees and costs incurred in this action; and d) For such other and further relief this Court deems just and equitable. COUNT Il - BREACH OF COMMERCIAL LEASE 21. Landlord re-allegesand incorporates paragraphs 1 through 15 as though fullyset forth herein. 22. This is an action for damages for breach of a commercial lease. 23. breached Tenant has materially to its obligations Landlord under the Lease to pay rent as set by failing forth above. 24. Tenant's failure to pay rent and related charges is a material breach of the Lease. 25. Landlord has been harmed by Tenant's breach of the Lease. 26. Tenant owes Landlord $49,988.62 for past due rent. In addition,Landlord declares all remaining rent under the Lease to be due and payable.The accelerated base rent under the Lease, plus sales tax, is $133,044.53. The total amount due and owing to Landlord from Tenant for arrears and future rent is $183,033.15, plus monthly pass throughs and late fees. WHEREFORE, Landlord, LRF1 CROSSROADS SQUARE, LLC, demands judgment against ISLANDS IN THE PINES RESTAURANT, LLC, for compensatory damages, pre-judgment interest,post-judgment interest,costs and reasonable attorneys' fees, and for such other and further relief this Court deems justand equitable. 5 COUNT Ill- BREACH OF LEASE GUARANTEE 27. Landlord re-allegesand incorporatesparagraphs 1 through 15 and 21 through 26 as though fullyset forth herein. 28. This is an action for damages for breach of the commercial lease guarantee. 29. The Assignment which included a guarantee ("Guarantee") was agreed to A copy of the Guarantee and executed by Audley Russell ("Guarantor"). is attached hereto as Exhibit "D". 30. The Guarantee was ratified by Guarantor in the First,Second and Third Amendments. 31. Guarantor has materiallybreached his obligationsto Landlord under the Guarantee by failingto pay rent as set forth above. 32. Guarantor's failure to pay rent and late charges is a material breach of the Guarantee. 33. Landlord has been harmed by Guarantor's breach of the Guarantee. 34. Guarantor owes Landlord for arrears and future rent in the sum of $183,033.15, plus monthly pass throughs and late fees, which is due immediately and payable to Landlord pursuant to the Guarantee. WHEREFORE, Landlord, LRF1 CROSSROADS SQUARE, LLC, demands judgment against AUDLEY RUSSELL, for compensatory damages, pre-judgment interest,post-judgmentinterest,costs and reasonable attorneys'fees; and for such other 6 and further relief this Court deems justand equitable. Dated iEr.E y of September, 2022. 1111??? this, THEODORE D. ESTES, ESQ. Florida Bar No. 600660 EDWARD F. BRUNICARDI, ESQ. FloridaBar No. 055471 636 West Yale Street Orlando, Florida 32803 MOD 426-9500 Fax: (407) 426-8030 E-Mail: tdestes@divineestes.com ebrunicardi@divineestes.com aweaver@divineestes.com Attorney for Landlord/Plaintiff 7 'D .0 SHOPPING CENTER LEASE CONTRACT BY AND BETWEEN I UNITED INVESTORS PEMBROKE, INC. LANDLORD AND RICKARDO LYN AND CHELETA LYN TENANT AELBIO A , EXHIBIT "A" (, D 0 LEASE CONTRACT SUMMARY The followingis a summary of some of the provisionsof the Lease Contract attached hereto and made a part hereof. In the event of a conflict between the provisions of this Summary and the Lease Contract, the provisions of the Lease Contract shall govern and control. 1. Landlord and UNI1ED INVESTORS PEMBROKE, INC. Notice Address: 5847 San Felipe, Suite 850, Houston, Texas 77057-3008 2 Tenant: RICKARDO A. LYN AND CHELETA D. LYN Trade Name: ISLANDS IN THE PINES, INC. Tax ID or SS#: Rickardo A. Lyn 264-85-0125 Cheleta D. Lyn 263-99-9636 Notice Address: 661 N.W. 156th Avenue, Pembroke Pines, FL 33028 and shopping center premises Tenant BillingAddress: 661 N.W. 156th Avenue, Pembroke Pines, FL 33028 and shopping center premises Owner Residence 661 N.W. 156th Avenue, Pembroke Pines, FL 33028 Address: Telephone Number 954-450-2132 Current Business: Fax Number: 954-450-2893 3. Lease Guarantor: ISLANDS WTHEPMES PESTAURANTIU. Tax ID or SS#: 65- 09147M Address: 661 NW 156 AVC , MDMKRP.NES, Ft,33028 Telephone #: 954-450- 232 954-450- 2893 Fax Number: 4 Leased Premises: Approximate 1500 square footage as shown on Exhibit "A", located at, SuitE#111 02. N.ORTXVNIVER?SITY-FNVE 5. MbROIU 8.Nes,R.'33024 Tenant's Pro-Rata Share: Point Forty-Nine Percent (.49%) of Shopping Center, which currentlyincludes an aggregate of 1,500 square feet of gross leasable area C'GLA"). Tenant's Pro-Rata Share shall be modified from time to time to reflect any changes in the aggregate GLA ofthe Shopping Center. 6 Lease Term: Sixty(60) months and any partialperiod followingCommencement Date. I -86130199 Commencement Datdi---'Di*-iiois6ssion . is conveyed to Tenant. tent commencement on the sixtieth (60th) day after Landlq:-dconveys possession to Tenant or the date lenantopens for business, whichever occurssooner. ?<0**,f< GORWHMTMOMFJ COM.DAH8@99 Termination Date: Sixt* (60) months after CotnmlncementDate. 4642HO4 81344 Holdovcr Rent: 150% of minimum percentage rent, common area payment, tax payment, rent, insurance payment, marketing payment and mail payment payable for the last Aua .1'k/90 month of the existingterm. boAOB:.YZ. XSGEONF IEEGDEGNIE-CDYA,iGJLI',6 PRDrAG. Minimum Rent: $111,512.76 total Lease Contract Minimum Rents. Bill 8/30-8/3,/99 BD/Ig Payable in equal successive monthly installments as follows: $112.91 $1,750.00 per month Year 1 8/31/00 8/30/99- $ 1,750.OOper month $1,837.50 per month Year 3 4/,/01-P/31/02 $ 1,929.38 per month Year 4 9/1/02-8/3,/03 $2,025.85 per month Year 5 9/1/03-8/3,/04 8 Percentage Rent: A sum equal to (0%) of all "Gross Sales" (as defined in Section 4 02) in excess of the "Breakpoint" during each Lease Year; pro-rated for any partial Lease Year. Lease Year shall be the calendar year. Initial Breakpoint shall be $0. 9 Security Deposit: $5,250.00, of which $1,750.00 shall be applied to the first month's Minimum Rent and additional charges. 10. Additional Charges (initialmonthly estimated payments per Section 22.02 ofthe Lease Contract: Bil/AMG ?S.uR--5?E----030.3131/ Common Area t Maintenance Payment: $178.75 per month ($1.43 x sf) 1154 Tax Payment: $181.25 per month ($1.45 x sf) Insurance Payment: $77.50 per month ($ .62 x sf) 5.00 Water: $N/A per month Trash: $N/A per month Other: $N/A per month 11. Permitted Use: a full service. sit-down. takeout or deliveryCaribbean/American Restaurant and for no other use. Tenant shall not use the Demised Premises as a fast food/quick service Italian Re§taurant: 12 Tenant Insurance Coverage Required: $2,000,000.00 13. Late Charges: Ten cents ($0,10) for each One Dollar ($1.00) so past due (See Section 25.10) 14 Special Provisions: See Exhibit F for specialprovisions. 15. Renewal Term(s) Qn@ (llfive-ynrzo*timJSUC-Olw.- 8/31/09 7911/04- 9/I/04-3/I@ 2127 50 Renewal Rents: 5% annual increases. O,/OS- 8/3406 2233.33- Notice Required: Six (6) ?zy????iFY FIBF-.8?.B.7? 246285 UY107-QW3..iOX monthlP4or to e*irdtion of exrstind ici'ht. 2585.99 -Z./G-8/3./09 ZIAO.4. 211*Ad4 0 0 . THE WITHIN LEASE CONTRACT SHALL BECOME EFFECTIVE ONLY UPON EXECUTION AND DEL,VERY BY ALL PARTIES HERETO ON OR BEFORE INDEX TO LEASE CONTRACT I-PREMISES I.01 Demise of Premises 1.02 Measurement of Premises Il-CONSTRUCTION WORK 2.01 Construction Work III-TERM 3.01 Term and Commencement 3.02 Vested Rights IV-RENTAL 4.01 Payment ofRental 4.02 Percentage Rental 4.03 Rentals to be paid without demand V-UTILITIES 5.01 Utilities Provided to Premise 5.02 Utility Responsibility Vl-USE 6.01 Use of Premise 6.02 Merchants Association/Marketing Fund 6.03 Tenant's Continuous Operation and Occupancy 6.04 Tenant's Trash and Rubbish 6.05 Landlord Required Key and Locking Devices VII-COMMON AREA 7.01 Description of Common Area 7.02 Tenant's Business Within Lease Premises 7.03 Tenant Loading and Delivery of Products 7.04 Leased Premises and Common Area Vlll-ASSIGNMENT & SUBLETT]NG 8.01 Assignment & Subletting 8.02 Tenant's Stock Transfer 8.03 No Waiver of Rights by Landlord IX-REPAIR &MAINTENANCE 9.01 Landlord's Required Repairs 9.02 Tenant's Required Repairs 9.03 Surrender of Premises at Lease Termination 9.04 Landlord's Right to Inspect 9.05 Tenant to Keep Property Free of Liens X-ADDITIONS & FIXTURES 10.01 Tenant Alterations 10 02 Removable Trade Fixtures 10.03 Taxes on Tenant's Leasehold Interest &Fixtures XI-FIRE & DESTRUCTION of PREMISES 11.01 Damage and Destruction of Premises 11.02 Landlord's Rights 11.03 Continuation of Lease & Reconstruction XII-LIABILITY & INDEMNITY 0 0 12.0 I Tenant Indemnification of Landlord 12.02 Tenant's Required Property Insurance 12.03 Tenant's Required LiabilityInsurance 12.04 Tenant's Required Policy Administration XIII-DIVERSION of SALES 13.01 Diversion of Sales XIV-SECURITY DEPOSIT 14.01 Tenant's Required SecurityDeposit XV-LANDLORD'S LIEN 15.01 Landlord's Lien 15.02 Landlord's Rights XVI-DEFAULT, REMEDIES, & DETERMINATION of DAMAGE I 6.01 Events of Default 16.02 Landlord's Remedies 16.03 Tenant's Liabilities 16.04 Tenant's Calculation ofGross Sales 16.05 Tenant's Remedies 16.06 Attorney's Fees 16.07 Landlord and Tenant Affiliates XVII-NON-WAIVER 17.01 Non-Waiver XVIII-LANDLORD-TENANT RELATION 18.01 Landlord-Tenant Relation XIX-EMINENT DOMAIN 19.01 Eminent Domain 19.02 Landlord's Right 19.03 Condemnation Awards I 9.04 Condemnation & Lease Termination 19.05 Voluntary Conveyance XX-HOLDING OVER 20.01 Holder Rents and Other Charges 20.02 Notice to Terminate Holdover 20.03 Holdover Rental Distribution XXI-LANDLORD'S MORTGAGEE 21.01 Subordination of Lease to Mortgage 21.02 Landlord's Mortgagee & Mortgage Defined 21.03 Landlord's Default 21.04 Landlord and Tenant Covenants 21.05 Estoppels and Notices 21.06 Landlord's Leasehold Interest Rights XXII-ADD]TIONAL RENTS 22.01 Common Area Operating Costs, Taxes, & Insurance 22.02 Common Area, Tax, & Insurance Payment 22.03 Tenant Direct Payments 22.04 Rent Sales Tax 22.05 Landlord May Combine Related Properties XXHI-NOTICE 23.01 Notice Addresses of Landlord and Tenant XXIV-TENANT'S SIGNS 24.01 Tenant's Signs & Their Operation .. 0 0 XXV-TERMINOLOGY and MISCELLANEOUS 25.01 Lease Document Gender/Numbers Provisions 25.02 Landlord's Right to Entry 25.03 Counterclaims 25.04 Appointment of Receiver 25.05 Time is ofthe Essence 25.06 Independent Covenants 25.07 Consequential Damages 25.08 Location of ObligationPerformance 25.09 Rights & Obligations under an Assignment or Sublease 25. I0 Late Charges 25.11 Independent Covenant for Maintenance and Repair 25.12 Tenant Acceptance of Premises 25.13 Joint and Several Liabilityby Tenant Entities 25.14 Notice of Relocation 25.15 Landlord's Legal Status XXVI-TENANT'S BANKRUPTCY 26.01 Tenant's Bankruptcy 26.02 Adequate Assurance by Tenant 26.03 Legal Lease Assignment 26.04 Real Property Definition for Bankruptcy 26.05 Constitution of Rent 26.06 Landlord's Right to Receive Rents 26.07 Lease Assignment XXVII-ENTIRE AGREEMENT 27.01 Entire Agreement EXECUTION BLOCKS EXHIBITS: EXHIBIT A SITE PLAN/PREMISES EXHIBIT B CONSTRUCTION AGREEMENT - LANDLORD'S WORK EXHIBIT C CONSTRUCTION AGREEMENT - TENANTS WORK EXHIBIT D TENANT SIGN SPECIFICATIONS EXHIBIT E HEATING AND AIR CONDITIONING MAINTENANCE PROVISIONS EXHIBIT F SPECIAL PROVISIONS ARTICLE XXIII - RIDER 1 OPTION TO RENEW COMMENCMENT FORM RADON GAS ADDENDUM 0 0 LEASE CONTRACT THIS LEASE CONTRACT entered into by and between UNITED INVESTORS PEMBROKE, INC., with principal place of business in Houston, Harris County, Texas, hereinafter called Landlord and RICKARDO LYN AND CHELETA LYN, hereinafter called Tenant. WITNESSETH: ARTICLE I Premises Section 1.0 ]. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord the leased premises (the "Leased Premises") which shall be a portion of a building, which portion contains or will contain approximately 1,500 square feet of floor area, situated or to be situated substantially in the location which is shown outlined or hatched on the plat designated Exhibit "A", which is annexed hereto and incorporated by reference herein andmade a part hereof for all purposes, such building to be constructed or being constructed on part of the of property described in Exhibit "B", which is annexed hereto and incorporated by reference herein and tract made a part hereof for all purposes. The land described in Exhibit "B" (and any additional land from time to time designated by Landlord) and any existing and future buildings, parking area, sidewalks, service area and other improvements now existingor hereafter erected thereon are sometimes herein referred to as the "Shopping Center". Landlord reserves the right to place in,under, over or through the Leased Premises pipes, wires, lines,and facilities serving other areas of the Shopping Center provided such right is exercised in a manner which does not unreasonably interfere with Tenant's conduct of its business at the Leased Premises. Section 1.02. In determining the floor area of the Leased Premises, distances shall be measured from the exterior face of walls and the centerline of all partitionwalls, which separate the Leased Premises all exterior from any interior area. Walls separating the Leased Premises from a mall area or corridor walls shall be deemed to be exterior walls ofthe Leased Premises. ARTICLE II Construction Work Section 2.01. The Leased Premises shall be constructed in accordance with the Construction Rider attached hereto and incorporated by reference herein for all purposes. ARTICLE III Term Section 3.01. The term of this Lease shall commence the date Landlord conveys possession. The Rent Commencement Date ("RentCommencement Date") shall be sixty (60) days after tender of possession of the Leased Premises to Tenant by Landlord, or (ii)on the date upon which Tenant opens for business in the Leased Premises, whichever occurs sooner. The term of this Lease shall terminate on the last day of the sixtieth (60th) full calendar month after its Rent Commencement Date, unless sooner terminated in accordance with the terms and conditions hereinafter set forth. At the request of Landlord from time to time made, Tenant will execute one or more memoranda or letters statingthe commencement and termination dates of the Lease. During the last ninety (90) days of the lease term, Landlord shall have the right to place signs on the storefront or windows of or otherwise in the Leased Premises advertisingit for rent. Section 3.02. Notwithstanding the fact that the lease term will commence at a date subsequent to the execution of this instrument by Landlord and Tenant, such parties intend that each shall have vested rights immediately upon the signing of this instrument and that this instrument shall be fully binding and in full force and effect from and after execution hereof by Landlord and Tenant. In the event that the lease term shall not have, in fact,commenced within two (2) years from the date hereof (and if this Lease shall not theretofore have been cancelled by Landlord as herein permitted), then, in addition to all the other rights and remedies of Landlord set forth herein, this Lease shall thereupon be automatically null and void and of no further force and effect, and neither party shall have any further obligation or liability hereunder. 0 O ARTICLE IV Rental Section 4.01. As "Minimum Rent", Tenant covenants and agrees to pay to Landlord, to its lockbox, in Dallas, Texas, at P.O. Box 200144, Dallas, Texas 75320-0144 or at such other address as Landlord may from time to time designate in writing, the sum of One Thousand Seven Hundred Fifty and 00/100 Dollars ($1,750.00) plus a pro rata portion thereof for any partialmonth occurring at the commencement of the term of this Lease if such commencement be other than the first day of a calendar month), such sum to be payable in equal monthly installments of One Thousand Seven Hundred Fifty and 00/100 Dollars ($1,750.00) per month for the first Lease Year, the sum of One Thousand Seven Hundred Fifty and 00/100 Dollars ($1,750.00) per month for the second Lease Year, the sum of One Thousand Eight Hundred Thirty-Seven and 50/100 Dollars ($1,837.50) per month for the third Lease Year, the sum of One Thousand Nine Hundred Twenty-nine and 38/100 Dollars ($1,929.38) for the fourth Lease Year, and the sum of Two Thousand Twenty-six and 50/100 Dollars ($2,026.50) for the fifth Lease Year. All such Minimum Rent payments shall be made due, and payable on the first day of each calendar month, monthly in advance, for each and every month in the term of this Lease. Upon commencement of the term of this Lease, Tenant will pay Landlord Minimum Rent for the first full calendar month of the lease term; but if the lease term does not commence on the first day of a calendar month, Tenant will, in lieu of a full month's Minimum Rent, pay in advance a pro rata part of such sum as Minimum Rent for such partialmonth. Section 4.02. the--feltewing; Ge#eFFG-*HheeiA@AeHeAFFe?i-?e-+h*-2Bfeal?WZ?u?4n?+2;eage-,ee?Ha?-he,D-Ae?e#ne* 1 Pefeea?gedten#due#he#-be-eale#Jed?.end-paid-men#*4?eemmeneing-e*4 themeindepef:?eUel-6easeYeaF-eieWedditieneW@fess..&&1es: ln--the-epe 4ha?4*e-MinHmlm-Rei?I-#ef-ei?ease-YeaF-.Ghal#-6e-fedueed-.ebeted*-ee-6en degease-in-th+D,4-um-Renti?a,aMe4Mai*?6ease-#eaAR-Ue4ent-4hat-any-6ea*#ea--ai-e-4eGG G. may--ber-feMA?-suehl.ea?eyeeF. Tenant shall report to Landlord Tenant's annual Gross Sales. The term "Gross Sales" includes all moneys or things of value received or receivable, including lease or rental revenue (without deductions for uncollectibles)by Tenant, its sublessees, licensees or concessionaires or others, for merchandise sold or services performed or business conducted (includinginterest, time-price differential, finance charges and service charges on time-payment sales, credit sales or lay-a-way sales) itt about or from the Leased Premises (including, without limitation, orders received in person or by mail, telephone or telegraph),including transactions in which delivery is made customer at the Leased Premises but the order is taken elsewhere, transactions in which the order is to the taken at the Leased Premises but delivery is made elsewhere, receipts from mechanical and other vending machines, deposits not refunded to purchasers, and revenues, fees, and/or commissions received from the sale of lottery tickets. The term "Gross Sales" shall also include sales made.over or through the Internet (or similar facility)? and filled from or through the Leased Premises and sales made over or through the Internet and filled from or through a central distribution point located within 150 miles of the Leased Premises (a "CDP"), provided,however, that if such sales are filled from or through such CDP and other stores affiliated with Tenant are also serviced from or through the same CDP only an aliquot portion of such Internet sales shall be deemed allocated to the Leased Premises for purposes of determining Gross Sales. "Aliquot portion" shall mean the ratio determined by diving Gross Sales without regard to sales from or through the CDP by aggregate sale filled from or through such CDP. The term "Gross Sales" shall not include (i)governmental excise or sales taxes added to the selling price of the item and paid by the Tenant directly to the Government, or (ii)refunds or allowances to customers not in excess of the originalsellingprice of the item, or (iii)transfers or exchanges of merchandise to another of Tenanfs stores made in the regular course of Tenant's business and not for the purpose of avoiding consummation of a sale in the Leased Premises, or (iv) returns to shippers or manufacturers, or (v) sales of Tenanfs "Removable Trade Fixtures "as hereinafter defined) after use by Tenant in the Leased Premises. Under no circumstances shall there be any deduction from Gross Sales by reason of Tenanfs being liable to pay any franchise tax, capital stock tax, income tax or similar or dissimilar tax based upon Tenanfs income, capitalstructure, or profits. All Gross Sales will be recorded either (i)through modern cash registersfrom which a cash receipt shall be given to each customer for each purchase or (ii)in such other manner as may be approved in writing by Landlord. Tenant shall accurately maintain full and adequate records and books of account on all business operations in or about the Leased Premises. All books of account, records, daily cash register total slips,sales slips and Federal income tax returns relatingto Tenant's operation in or about the Leased Premises will be retained by Tenant for a period of three (3) years after preparation, and will be open to inspection by Landlord (or its representative)at all reasonable times. Tenant shall also furnish Landlord copies of any financial statements of Tenant that are prepared during the term of this Lease. The term "Lease Year", as used herein, shall, in the case of the first Lease Year, mean the period which commences with the date of commencement of the lease term and terminates on the la?tday of the calendar year in ? 2 MP 0 0 . which the Lease Tenn commences. Thereafter, the term Lease Year shall mean calendar year. The last Lease Year of the lease term shall be the period, which commences on January I of the year, which the Lease terminates and ends on the Lease termination date. I Within days after the end of each Lease Year, Tenant will deliver to Landlord a statement fifteen (15) signed by Tenant (if Tenant is an individual),or a general partner of Tenant (if Tenant is a partnership) or a responsible corporate officer ofTenant (ifTenant is a corporation) accuratelysettingforth the amount of Gross sales S?eFeen;age-Re? made during sueh each month, itemized in reasonable detail. a,+w#NenempeFaneeuelrtheFewi*h--par-any Tenant will furnish to Landlord a statement signed and sworn to br4he-Gameioa:46-wU-is-t-ign-Ihe-monthl,-stntemem-*sales-aeeerding-?e-Iho W - foregoing-,Fe*Gie#&-Iis:Gof, accurately showing Gross Sales for the preceding Lease Year itemized in reasonable detail. en+w#4-een*empe?eneeusl,4he??w*peranreddi*ienal-8eEeen*age-Ren4-d-feF-seeh-6ea*e*eae--ghe? meh#etement-FeAeet-anerpaymenbeA-Pefeentage-RenfeMueh-Lease-Ye shal?-b?+GFedi?in*4?e-AFG*-PeFeemage-Ren*-pa??aW?*4he4*ens?g?-i?ease?ap-4,eaGe-yea?6.: I 6andle?e,r?*anr--4imeGrhe--udi*-mede-eAeny-s-statem-;-ma?amine4:enant+sales m*-?pe,:t*?WeRent+i?-IeFy-meemenMI-rend-etheHeleval-eeFd?-AMueh-peNedran+RGGeplanee-eAhe ii??ioi??ib?iitiHiimiliii@?iifiliiAiji?ii.?ii?iimiii?Oiiiifmiii@iFiiki?Piig?igieiiidi *heees?eAhe?awdit-Ghalkbe-beme?by-?6andleFd.tHUeeswehe,:?di?hew64ha64?ean?e-§;e-nwas-i*-e?F**hm eA. ee*e:-geeh-audik--A-n?d*by.?Iandle?a,-be-Fe?eifed*6endle?--,4Hne-eMimes-deping-4&0?m?u*ines? heuF&.?designated-b??6endlefd?,Ipen-?hfee?0*4ay?pFiep4w?ef-Ue--ienant: ln-4he?ent-4?enant-?ile-4e-eubmit-404?andleFd-i;6??08+-eE--GFeGG-Sele5*aeeeFdenee-wilh-4he-tetme Wenenl-1-6ease?-P?emige-?ing-*heeamel-d-eft?he4mmedia?elrp-ding-6ea*----sueh-gum-? be4mmedie?e?-?*-pa*1+-*enan+4e-6@Rd?-A+-anrtime--aAe?:*4ate-epen-mhie?ueh-6*a-Bt Ghewld4 a--beeR-submitted.-6andleFd-5haIW-4he?ighHe?-ad?Wienen*t?eekG--?feeeFd5*?I?enant!§-§01-9* ?U*AUUUEUUt*ImUaU*Ua.LU?4UC*UU4,Ug;U; dweie#ewing--sweh?audit-sha??-beimmediately-dwe.and--pa?abie: Gempien.eAhe-PeFeemage?R-halk?be4nade-GepaFa?aR44ndependenllr?ep-eaeIA,ease-Yeapekhe m. Section 4.03. All rent (includingboth Minimum Rent *) and other sums hereunder provided to be paid by Tenant shall be due and payable by Tenant without demand, deduction, abatement or off-set except as expressly provided herein. Rent shall be deemed past due if not received on or before its due date for any reason whatsoever or if a rental payment is made by check, which is, returned for insufficient funds. Past due rent and other past due payments shall bear interest from the due date at the rate of twelve percent (12%) per annum (or, at Landlord's option, the highest non-usurious rate permitted by law) from the date due until paid. All other sums and charges of whatsoever nature required to be paid by Tenant to Landlord pursuant to the terms of this Lease (including,without limitation,all payments set fbrth in Article XXII, below entitled "Additional Rent") constitute additional rent (whether or not same be designated "Additional Rent") and failure by Tenant to timely pay such other sums or charges may be treated by Landlord as a failure by Tenant to pay Minimum Rent. ARTICLE V Utilities Section 5.01. Tenant will at its own cost and expense pay for all water, sanitary sewer, gas, electricity and other utilities used in the Leased Premises and and hold Landlord harmless from any charge or liability will save for same. Such payments shall be made directlyto the supplierof any utility separatelymetered (or sub-metered or supplied) to the Leased Premises and on such equitable basis as may be determined by Landlord with respect to any such utilities which are metered or shared by Tenant in common with other occupants of the Shopping Center. Tenant will, upon request of Landlord, from time to time during the term hereof, furnish to Landlord copies of Tenanfs water and sanitary sewer bills. Section 5.02. No interruption or malfunction of any utilityservices (including, without I imitation, interruption of such as a result of the enactment or promulgation, regardless of the ultimate validity or utilities enforceability thereof, of any federal,state or local law, statute, ordinance, decree, order, guideline or regulation now or hereafter enacted or promulgated by any governmental, quasi-governmental, regulatory or executive authority) shall constitute an eviction or disturbance of Tenant's use and possession of the Leased Premises or a breach by Landlord of any of its obligations hereunder or render Landlord liable for any damages (including, without lim itation, consequential or special damages) or entitle Tenant to be relieved from any of its obligations hereunder (including the obligation to pay rent) or grant Tenant any right of off-set or recoupment. In the event of any such interruption of any such services, Landlord shall use reasonable diligence to restore such service in any circumstances in which such interruptionis caused by Landlord's fault. 3 0 0 ARTICLE VI Use Section 6.01. Tenant will use the Leased Premises solely for the following purpose: a full service, sit- down. takeout or delivery Caribbean/American Restaurant and for no other use. Tenant shall not use the Demised Premises as a fast food/quick service Italian Restaurant. Tenant will not use or permit use ofthe Leased Premises for any other purpose without the written consent of Landlord. Such store will be advertised as and operated under the name Islands in the Pines Restaurant, Inc. unless and until the majority of the stores Tenant (or its parent corporation, if Tenant is a corporation) is now or hereafter so operating should change their names, in which event the Leased Premises will be advertised as and operated under such new name. Tenant, at its own expense: will comply with all Federal, State, municipal and other laws, codes, ordinances, rules and regulationsapplicable to the Leased Premises and the business conducted therein by Tenant; will install,remove and alter such fixtures, equipment and facilities in, and make such alterations to, the Leased Premises as may be necessary so to comply; will comply with such regulations as Landlord may promulgate regarding sanitation, cleanliness and other matters (not inconsistent with any other provision of this instrument), including without limitation removal of garbage, trash and other waste; and will furnish and maintain an adequate number of fire extinguishersin good operating condition as may be reasonably required by Landlord, and in any event not less than one such extinguisher for each floor or level of the Leased Premises. Tenant will not engage in any activityor permit any nature of construction by Tend or any other condition at the Leased Premises which would cause Landlord's fire and extended coverage insurance to be canceled, or the rate therefor increased (or at Landiord's option will upon demand pay any such increase);will comply with such safety recommendations (specifically but not limited to the storage, handling, and the use of hazardous substances), and loss prevention and loss reduction recommendations as Landlord or Landlord's insurance carriers (or both) may, from time to time, request. The term "Hazardous Substances," as used in this lease shall mean pollutants, contam inants, toxic or hazardous wastes, or any other substances, the removal of which is required, or the use of which is restricted, prohibited or penalized by any "Environmental Law," which term shall mean any federal, state or local law or ordinance relatingto pollutionor protection of the environment. Tenant hereby agrees that (i)no activity will be conducted on the Premises that will produce any Hazardous Substance, except for such activities that are part of the I ordinary course of Tenant's business activities (the "Permitted Activities"), provided said permitted Activities are conducted in accordance with all Environmental Laws and have been approved in advance in writing by Landlord; (ii) the Premises will not be used in any manner for the storage of any Hazardous Substances except for the temporary storage of such materials that are used in the ordinary course of Tenant's business (the "Permitted Materials") provided such Permitted Materials are properly stored in a manner and location meeting all Environmental Laws and approved in advance by Landlord, (UD no portion of the Premises will be used in writing as a l