Lease for First Floor Space
WAREHOUSE SPACE LEASE AGREEMENT
THIS WAREHOUSE SPACE LEASE AGREEMENT ("Lease") is made as of
December 1, 1994, by and between JACKSONVILLE CENTER, INC., a
Florida corporation, whose address is 000 X. Xxxx Xxxxxx, Xxxxx,
Xxxxxxx 00000 ("Landlord"), and XXXXX & XXXX TERMINAL WAREHOUSE
COMPANY, INC., a Florida corporation, whose address is 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Tenant").
W I T N E S S E T H:
ARTICLE 1.
LEASED PREMISES
The Landlord hereby leases and rents unto the Tenant and the
Tenant hereby hires and takes from the Landlord the following
described property ("Leased Premises"):
Approximately 596,676 square feet of space designated as
Sections 1.2, 1.3, 1.4, 1.5, 1.6 and 1.7, and
constituting a portion of a building (the "Building")
included in facility known as One Imeson Center (the
"Property"), located at One Xxxxxx Xxxx Xxxxxxxxx,
Xxxxxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000. The legal
description of the Property and a Site Plan depicting the
location of the Leased Premises are attached hereto as
Exhibit A. During the Term (as herein defined), Tenant
shall also be entitled to (i) the exclusive use of that
portion of the parking lot located on the Property
labeled on the Site Plan as "Tenant Parking," and (ii)
the non-exclusive use, in conjunction with Landlord and
other tenants of the Property, of the access drive shown
on the Site Plan.
ARTICLE 2.
TERM
Section 2.1 Base Term. The base term of this Lease shall be
thirteen (13) months commencing on December 1, 1994, and ending on
December 31, 1995, unless renewed or extended as provided herein,
on the terms and conditions as set forth herein.
Section 2.2 Options to Renew. Landlord shall provide Tenant
with one (1) three (3) month option to renew this Lease, provided
Tenant is not in default under this Lease and Tenant gives Landlord
one hundred twenty (120) days' prior written notice of Tenant's
intent to exercise the renewal option. The base rent will be the
same as the base term. The base term and, if Tenant's renewal
option is properly and timely exercised, the renewal term are
together referred to herein as the "Term".
ARTICLE 3.
RENT AND OTHER CHARGES
Section 3.1 Base Rent. Tenant hereby covenants and agrees to
pay Base Rent of $111,876.75 per month for each and every month
during the Term payable in advance commencing on December 1, 1994
and continuing on the first day of each and every month during the
Term in lawful United States currency, together with any and all
sales or use taxes levied upon the use or occupancy of the Leased
Premises and any rent or other charges payable hereunder. Base
Rent shall be paid without set off or deduction to Landlord at its
address above or such other address as Landlord directs in writing.
To defray the additional expenses involved in collecting and
handling delinquent payments, if any, Base Rent or other payment
due under this Lease is not received by Landlord within ten (10)
days of the due date of such payment, Tenant shall pay in addition
to such payment a late charge equal to 5% of the payment which is
past due. Tenant acknowledges that this charge is made to
compensate Landlord for additional costs incurred by Landlord as a
result of Tenant's failure to pay when due, and is not a payment
for the extension of the rent due date. Landlord's failure to
insist upon the payment of the late charge shall not be deemed a
waiver of Landlord's right to collect such late charge for any
future delinquencies.
Section 3.2 Additional Rent. All charges payable by Tenant
under the terms of this Lease other than Base Rent are called
"Additional Rent." Unless this Lease provides otherwise, all
Additional Rent shall be paid with the next monthly installment of
Base Rent. The term "rent" shall mean Base Rent and Additional
Rent.
Section 3.3 Operating Expenses. In addition to Base Rent
payable under paragraph 3.1 above, Tenant agrees to pay as
Additional Rent its pro-rata share of the "Operating Expenses"
(hereinafter defined) for the Building and, to the extent
applicable, to the Property. The pro-rata share of Operating
Expenses ("Share") to be paid by Tenant shall be 34.79% (596,676
divided by 1,715,000) of the Operating Expenses. Tenant's Share of
Operating Expenses shall include no less than $.40 per square foot
per year (which amount consists of $.23 per square foot for Real
Property Taxes [as herein defined], $.07 per square foot for
insurance and $.10 per square foot for common area maintenance
charges) and an additional amount for Tenant's use of the telephone
system in the Building. Landlord shall deliver monthly invoices to
Tenant for Tenant's Share of Operating Expenses, and such invoices
shall be due and payable within ten (10) days of receipt. From
time to time during the Term, Landlord shall send a statement of
Operating Expenses to Tenant for any portion of the Term that has
expired providing in reasonable detail a statement of all Operating
Expenses incurred in the operation of the Property along with the
amount representing Tenant's Share thereof. Tenant shall be given
a credit against its Share of future Operating Expenses payable for
any overpayment of Operating Expense that have been paid up to the
time of said statement. If Tenant has underpaid, then the balance
due shall be paid to Landlord by Tenant within thirty (30) days of
the date of said statement unless the statement is rendered at the
end of the Term in which case any overage due the Landlord will be
paid by check at the time the Leased Premises are delivered to
Landlord by Tenant. Concurrent with the invoice described above,
Landlord shall also provide an estimate of the Operating Expenses
and a statement of the estimated monthly Operating Expense payable
by Tenant as additional rent under the terms of this Lease.
Tenant's liability for its Share of Operating Expenses shall
commence on the date of Tenant's actual occupancy of the Leased
Premises, without regard to the date the payment of Base Rent
commences.
"Operating Expenses" shall mean all expenses incurred by
Landlord, including but not limited to, Real Property Taxes (as
hereinafter defined), Insurance Premiums (as hereinafter defined),
Security Services (as hereinafter defined), compliance with
governmental and quasi-governmental requirements, lighting,
landscaping, an allowance for Landlord's overhead costs, and the
cost of all water and sewer, electrical and all other utilities
charges that are not separately metered to tenants. However,
"Operating Expenses" shall exclude all expenses incurred by
Landlord in performance of its obligations under Section 5.3 below.
Furthermore, the term "Operating Expenses" does not include the
cost of any capital improvement to the Building or the Property
other than the reasonable amortized cost of capital improvements
which result in the reduction of Operating Expenses. Moreover, the
term "Operating Expenses" shall not include repairs, restoration or
other work occasioned by fire, windstorm, or other casualty, income
and franchise taxes of Landlord, expenses incurred in leasing to or
procuring of tenants, leasing commissions, expenses for the
renovation of space for new tenants, interest or principal on any
mortgage or indebtedness of Landlord, or depreciation allowance or
expense.
If the nature of Tenant's business within the Leased Premises
is such that additional costs are incurred by Landlord for
insurance, cleaning, or other Operating Expenses, Tenant agrees to
pay as additional rent to Landlord on demand the amount of such
additional costs.
Section 3.4 Taxes.
A. Definition of "Real Property Taxes". "Real Property
Taxes" means: (i) any fee, license fee, license tax, business
license fee, commercial rental tax, levy, charge, assessment
(including all special assessments), penalty or tax imposed by any
taxing authority against the Building, the Property or land upon
which the Property is located; (ii) any tax on the Landlord's
right to receive, or the receipt of, rent or income from the
Property or against Landlord's business of leasing the Property;
(iii) any tax or charge for fire protection, streets, sidewalks,
road maintenance, refuse or other services provided to the Property
by any governmental agency; and (iv) any charge or fee replacing
any tax previously included within the definition of real property
tax. "Real Property Taxes" does not, however, include Landlord's
federal or state income, franchise, inheritance or estate taxes.
B. Joint Assessment. If the Property is not separately
assessed, Tenant's Share of Real Property Taxes payable shall be
determined by Landlord from the assessor's worksheets or other
reasonably available information.
C. Personal Property Taxes.
(i) Tenant shall pay all taxes charged against
trade fixtures, furnishings, equipment or any other personal
property belonging to Tenant. Tenant shall use its best efforts to
have personal property taxes assessed separately from the Property.
(ii) If any of Tenant's personal property is
taxed with the Property, Tenant shall pay Landlord the taxes on the
personal property within fifteen (15) days after Tenant receives a
written statement from Landlord for such personal property taxes.
Section 3.5 Utilities. Tenant shall pay, directly to the
appropriate supplier, the cost of all telephone and refuse disposal
services supplied to the Leased Premises (other than the charge for
use of the existing telephone system in the Building as set forth
in Section 3.3). With respect to all other services or utilities,
Landlord shall make a reasonable determination of Tenant's share of
the cost of such utilities and services and Tenant shall pay such
share to Landlord.
Section 3.6 Insurance.
A. Liability Insurance. During the Term, Tenant shall
maintain a policy of comprehensive public liability insurance with
an insurer licensed in Florida and rated "A" or better by A. M.
Best and naming Landlord as an additional insured, at Tenant's sole
cost and expense, insuring Landlord against liability arising out
of the ownership, use, occupancy or maintenance of the Leased
Premises and Property and containing a cross-liability endorsement
and a severability of interests clause. The initial amount of such
insurance shall be at least $5,000,000 per occurrence and
$5,000,000 aggregate coverage. Such coverage requirement does not
constitute any recommendation by Landlord as to appropriate limits
of coverage, but is merely Landlord's minimum requirement.
B. Hazard Insurance. During the Term, Landlord shall
maintain policies of insurance covering loss of or damage to the
Property in such amount or percentage of replacement value as
Landlord or its insurance advisor deems reasonable in relation to
the age, location, type of construction and physical conditions of
the Property and the availability of such insurance at reasonable
rates. Tenant shall, at Tenant's sole cost and expense, maintain
insurance coverage for Tenant's fixtures, equipment or building
improvements installed by Tenant in or on the Property for the full
replacement value thereof. Tenant shall not do or permit to be
done anything which invalidates any such insurance policies.
C. Payment of Premiums; Insurance Policies. As part of
Operating Expenses, as described in Section 3.3 of this Lease,
Tenant shall pay its share of "Insurance Premiums" for the
insurance policies maintained by Landlord on the Building or on the
Property, as the case may be. Tenant shall pay for any increase in
the Insurance Premiums caused by Tenant's acts, omissions, use or
occupancy of the Property.
D. Workers' Compensation. Tenant shall carry workers'
compensation coverage in the minimum required statutory amount
insuring all eligible employees of Tenant on the Property.
E. Tenant's Insurance Policies. The amount of any
insurance coverage required to be carried by Tenant hereunder shall
not limit Tenant's liability nor relieve Tenant of any obligation
hereunder. Landlord shall be listed as additional insured and/or
loss payee on each such policy, as appropriate. Each policy shall
contain a provision which prohibits cancellation or modification of
the policy except upon thirty (30) days' prior written notice to
Landlord. Tenant shall deliver a copy of each such policy or
certificate (or a renewal thereof) to Landlord prior to the
Commencement Date and shall deliver to Landlord a copy of a
replacement policy or certificate thirty (30) days prior to the
expiration of any policy during the Term. If Tenant fails to
maintain such policy, Landlord may elect to maintain such insurance
at Tenant's expense, to be paid by Tenant upon presentation of
Landlord's xxxx therefor.
Section 3.7 Security. Landlord shall contract with an
independent contractor to provide security services for the
Property (the "Security Services"). Such security services shall
be for 24 hours per day or such lesser period as Landlord and
Tenant may agree and shall include appropriate operation by the
independent contractor of the guard shack located on the Property.
Tenant agrees and acknowledges that Landlord shall have no
liability for any act or negligence of such independent contractor
and that Landlord has agreed to enter into such contract for
Security Services as an accommodation to Tenant. Notwithstanding
Tenant's Share of Operating Expenses, as defined in Section 3.3,
Tenant shall pay as Additional Rent eighty percent (80%) of the
cost of the Security Services, or in the event that Landlord enters
into one or more other leases with third parties for portions of
the Property, such lesser proportion of the cost of the Security
Services as Landlord and Tenant may agree based on the relative
benefit from the Security Services derived by Landlord, Tenant and
other third-party tenants of the Property.
ARTICLE 4.
USE OF PROPERTY
Section 4.1 Permitted Uses. Tenant may use the Property only
for the following Permitted Use so long as such use is in
compliance with all applicable governmental laws, ordinances, rules
and regulations: warehouse operations and distribution.
Section 4.2 Manner of Use. Tenant shall not cause or permit
the Leased Premises, Building or Property to be used in any way
which constitutes a violation of any law, ordinance, or
governmental regulation or order, or which annoys or interferes
with the rights of tenants of the development of which the Leased
Premises, Building and Property are a part, or which constitutes a
nuisance or waste. Tenant shall obtain and pay for all permits
required for Tenant's occupancy of the Leased Premises, Building
and Property for the Permitted Use and shall promptly take all
actions necessary to comply with all applicable statutes,
ordinances, rules, regulations, orders and requirements regulating
the use by Tenant of the Leased Premises, Building and Property,
including, without limitation, the Occupational Safety and Health
Act and the Americans with Disabilities Act of 1990.
Section 4.3 Hazardous Substances. Tenant agrees not to
generate, store, use, treat or dispose of, nor to allow, suffer or
permit the generation, storage, use treatment or disposal of, any
"Hazardous Waste" or "Hazardous Substance" (as those terms are
defined in Resource Conversation and Recovery Act, 42 U.S.C.
Section 6901 et seq., as amended ("RCRA") or the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sections 9601 et seq., as amended ("CERCLA"), and any rules and
regulations now or hereafter promulgated under either of such acts)
or any pollutant or other contaminant on, in, from or about the
Leased Premises, Building or the Property, except in strict
accordance with applicable laws and regulations and following
notice of same to Landlord. Tenant shall and hereby does indemnify
and hold Landlord harmless from and against any and all loss,
damages, expenses, fees, claims, costs and liabilities (including,
but not limited to, attorney's fee and costs of litigation) arising
out of or in any manner related to the "release" or "threatened
release" of, and for any clean-up responsibility imposed upon owner
under any federal, state or local law, ordinance, rule or
regulations now or hereafter in effect, with respect to, any
"Hazardous Waste" or "Hazardous Substance", or any pollutant, or
other contaminant or environmental condition on, in, from or about
the Leased Premises, Building or the Property of any portion
thereof, which release or threatened release or pollutant or
environmental condition arises out of or is in any manner related
to use or occupancy of the Leased Premises, Building or Property by
Tenant, its agents or lessees.
Section 4.4 Signs and Auctions. Tenant shall not place any
signs upon the outside walls or roof of the Leased Premises or
Building except with the written consent of the Landlord. Any and
all approved signs placed on or within the Leased Premises,
Building or Property by Tenant shall be maintained in compliance
with the rules and regulations governing such signs as promulgated
by Landlord from time to time, and the Tenant shall be responsible
to Landlord for any damage caused by installation, use, or
maintenance of said signs. Tenant agrees upon removal of said
signs to repair all damage incident to such removal. Tenant shall
not conduct or permit any auctions or sheriff's sales at the Leased
Premises, Building or Property.
Section 4.5 Indemnity. Tenant shall indemnify Landlord
against and hold Landlord harmless from any and all costs, claims,
actions, damages or liability including expenses in connection with
loss of life, personal injury loss or damage including property
damage, arising from: (a) Tenant's use of the Leased Premises,
Building or Property; (b) the conduct of Tenant's business or
anything else done or permitted by Tenant to be done in or about
the Leased Premises, Building or Property; (c) any breach or
default in the performance of Tenant's obligations under this
Lease; (d) any misrepresentation or breach of warranty by Tenant
under this Lease; or (e) other acts or omissions of Tenant. Tenant
shall defend Landlord against any such cost, claim, action, damage
or liability at Tenant's expense with counsel reasonably acceptable
to Landlord or, at Landlord's election, Tenant shall reimburse
Landlord for any legal fees or costs incurred by Landlord in
connection with any such claim.
Section 4.6 Landlord's Access. Landlord or its agents may
enter the Leased Premises at all reasonable times to show the
Leased Premises to potential buyers, investors or tenants or other
parties or for any other purpose Landlord deems necessary.
Landlord shall give Tenant prior notice of such entry, except in
the case of an emergency. Landlord may place customary "For Sale"
or "For Lease" signs on the Leased Premises, Building or Property
as Landlord deems necessary.
Section 4.7 Quiet Possession. If Tenant pays the rent and
complies with all other terms of this Lease, Tenant may occupy and
enjoy the Leased Premises for the full Term, subject to the
provisions of this Lease.
Section 4.8 Rules and Regulations. Tenant shall also comply
with Landlord's reasonable rules and regulations respecting the
management, care and safety of the Property, including parking
areas, landscaped areas, walkways, hallways and other facilities
provided for the common use and convenience of other occupants.
ARTICLE 5.
CONDITION OF LEASED PREMISES; MAINTENANCE,
REPAIRS AND ALTERATIONS
Section 5.1 Acceptance of Leased Premises. Tenant
acknowledges that it has thoroughly inspected the Leased Premises
and Tenant hereby accepts the Leased Premises in their existing
condition with all faults, subject to the performance by Landlord
of the obligations described on Exhibit B attached hereto and made
a part hereof and Landlord's obligations under Section 5.3.
Landlord makes no warranties or representations whatsoever as to
the fitness of the Leased Premises for a particular purpose.
Section 5.2 Exemption of Landlord from Liability. Landlord
shall not be liable for any damage or injury to the person,
business (or any loss or income therefrom), goods, wares,
merchandise or other property of Tenant or to Tenant's employees,
invitees, customers or any other person in or about the Leased
Premises, Building or Property, whether such damage or injury is
caused by or results from: (a) fire, steam, electricity, water, gas
or rain; (b) the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures of any other cause; (c) conditions arising in or
about the Leased Premises, Building or Property or from other
sources or places; or (d) any act or omission of any other tenant
of the Property. Landlord shall not be liable for any such damage
or injury even though it is the cause of, or, though the means of
repairing such damage or injury are not accessible to Tenant.
Notwithstanding the foregoing, nothing in this Section 5.2 shall
relieve Landlord from liability for Landlord's gross negligence or
Landlord's failure to perform its obligations under this Lease.
Section 5.3 Landlord's Obligations. Subject to the
provisions of Article 6 regarding damage, destruction and
condemnation, and except for damage caused by any act or omission
of Tenant, Landlord shall at its expense keep the foundation, roof
and structural portions of exterior walls of the Building in good
order, condition and repair. However, Landlord shall not be
obligated to maintain or repair windows, doors, plate glass or the
surfaces of walls. Landlord shall not be obligated to make any
repairs under this Section 5.3 until a reasonable time after
receipt of a written notice from Tenant specifying the need for
such repairs.
Section 5.4 Tenant's Obligations.
A. Subject to the provisions of Article 6 regarding
damage, destruction and condemnation and subject to the items
existing on the date of this Lease as specified on Exhibit C
attached hereto and made a part hereof for which items Tenant shall
have no maintenance or repair responsibility, Tenant shall at its
expense throughout the Term maintain in good order, condition and
repair the Leased Premises, including, but not limited to,
nonstructural, interior, exterior, landscaped areas, systems and
equipment, electric lights, lamps, doors, floor coverings, truck
doors, plumbing work, and fixtures. Landlord shall use reasonable
efforts to extend to Tenant the benefit from warranties on such
items, if any, that have been made by Landlord's contractors or
vendors. If any portion of the Leased Premises or any system or
equipment in the Leased Premises which Tenant is obligated to
repair cannot be fully repaired, Tenant shall promptly replace the
same, regardless of whether the benefit of such replacement extends
beyond the Term. In addition, Tenant shall, at Tenant's expense,
repair any damage to the roof, foundation or structural portions or
walls caused by Tenant's acts or omissions or occurring in
connection with Tenant's use and possession of the Leased Premises.
Landlord and Tenant intend that, at all times during the Term,
Tenant shall maintain the Leased Premises in an attractive, first
class and fully operative condition.
B. All of Tenant's obligations to maintain and repair
shall be accomplished at Tenant's sole expense. If Tenant fails to
maintain and repair the Leased Premises as required by this Section
5.04, Landlord may, on ten (10) days' prior notice (except that no
notice shall be required in case of emergency), enter the Leased
Premises and perform such maintenance or repair on behalf of the
Tenant. In such cases, Tenant shall reimburse Landlord immediately
upon demand for all costs incurred in performing such maintenance
or repair.
Section 5.5 Alterations, Additions, and Improvements.
A. Tenant shall not make any alterations, additions, or
improvements to the Leased Premises, Building or Property without
Landlord's prior written consent. Landlord may require Tenant to
provide demolition and/or lien and completion bonds in form and
amount satisfactory to Landlord for any alterations, additions or
improvements that Landlord approves. Tenant shall promptly remove
any alterations, additions, or improvements constructed in
violation of this subparagraph of Section 5.5 upon Landlord's
written request. All alterations, addition and improvements will
be accomplished in a good and workmanlike manner at Tenant's sole
expense, in conformity with all applicable laws and regulations by
a licensed and bonded contractor approved in advance by Landlord.
Upon completion of any such work, Tenant shall provide Landlord
with "as built" plans, copies of all construction contracts, and
proof of payment for all labor and materials.
B. Tenant shall pay when due all claims for labor and
materials furnished to the Leased Premises, Building or Property.
Tenant shall give Landlord at least ten (10) days' prior written
notice of the commencement of any work on the Leased Premises,
Building or Property. The fee interest of Landlord in the Leased
Premises, the Building and the Property shall not be subject to
liens for improvements made by Tenant. Landlord and Tenant agree
that Tenant will not have authority to create or suffer any lien
for labor or materials on Landlord's interest in the Leased
Premises, the Building or the Property, and all contractors,
subcontractors, materialmen, mechanics, laborers and others
contracting with Tenant, and/or any subtenant of Tenant and/or any
other occupant(s) of the Leased Premises, for the construction,
installation, alteration or repair of any improvements to the
Leased Premises are hereby charged with notice that they must look
only to Tenant and to Tenant's interest in the Leased Premises to
secure the payment of any charges for work done and/or materials
furnished at the Leased Premises. Notwithstanding the foregoing,
if, for whatever reason, any mechanic's or other lien shall be
filed against the Leased Premises or any other part of the Building
or the Property, purporting to be for labor or material furnished
or to be furnished at the request of Tenant or anyone claiming
under Tenant, then Tenant shall at its expense cause such lien to
be discharged of record by payment, bond or otherwise as allowed by
law, within ten (10) days after the filing thereof. If Tenant
shall fail to cause the lien to be discharged of record within such
ten (10) day period, Tenant shall be in Default under this Lease
and (without waiving such Default) Landlord, in addition to any
other rights and remedies it may have under this Lease, may, but
shall not be obligated to, cause such lien to be discharged by
payment, bond or otherwise, without investigation as to the
validity thereof or as to any offsets or defenses thereto, and
Tenant shall, within ten (10) days after request, reimburse
Landlord for all amounts paid and incurred, including attorneys'
fees and interest thereon at the rate of 18% per annum or such
higher rate as may be permitted by law, from the respective dates
of Landlord's payments. For adequate separate consideration
received on the execution hereof, on request Tenant also shall
otherwise indemnify, protect, defend and hold harmless Landlord and
its agents against any claim or damage resulting therefrom or in
any way connected therewith. Landlord may elect to record and post
notices of non-responsibility on the Leased Premises, the Building
or Property, with respect to any such liens.
Section 5.6 Condition Upon Termination. Upon the termination
of the Lease, Tenant shall surrender the Leased Premises to
Landlord, broom clean and in the same condition as received except
for ordinary wear and tear which Tenant was not otherwise obligated
to remedy under any provision of this Lease. However, Tenant shall
not be obligated to repair any damage which Landlord is required to
repair under Article 6. In addition, Landlord may require Tenant
to remove any alterations, additions or improvements (whether or
not made with Landlord's consent) prior to the termination of the
Lease and to restore the Leased Premises, Building or Property to
its prior condition all at Tenant's expense. All alterations,
additions and improvements which Landlord has not required Tenant
to remove shall become Landlord's property and shall be surrendered
to Landlord upon the termination of the Lease, except that Tenant
may remove any of Tenant's machinery or equipment which can be
removed without material damage to the Leased Premises or Property.
Tenant shall repair, at Tenant's expense, any damage to the Leased
Premises, Building or Property caused by the removal of any such
machinery or equipment. In no event, however, shall Tenant remove
any of the following materials or equipment without Landlord's
prior written consent: any power wiring or power panels; lighting
or lighting fixtures; wall coverings; drapes, blinds or other
window coverings; carpets or other floor coverings; heaters, air
conditioners, or any other heating or air conditioning equipment;
fencing or security gates; or other similar building operating
equipment and decorations.
ARTICLE 6.
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 6.1 Partial Damage to Leased Premises or Property.
A. Tenant shall notify Landlord in writing immediately
upon the occurrence of any damage to the Leased Premises, Building
or Property.
B. If the Leased Premises, Building or Property are
only partially damaged and if the proceeds received by Landlord
from insurance policies carried by it with respect to the Leased
Premises, Building and Property are sufficient to pay for the
necessary repairs, this Lease shall remain in effect and Landlord
shall repair the damage within a reasonable time. If the insurance
proceeds received by Landlord are not available to Landlord or
sufficient to pay the entire cost of repair, or if the damage was
due to a cause not covered by insurance policies which Landlord
maintains, Landlord may elect either to (a) repair the damage as
soon as reasonably possible in which case this Lease shall remain
in full force and effect so long as Landlord diligently pursues
said repairs, or (b) terminate this Lease as of the date the damage
occurred. Landlord shall notify Tenant within ninety (90) days
after receipt of notice of the occurrence of the damage whether
Landlord elects to repair the damage or terminate this Lease. If
Landlord elects to terminate the Lease, Tenant may elect to
continue this Lease in full force and effect, in which case Tenant
shall repair any damage to the Leased Premises, Building and
Property. Tenant shall pay the cost of such repairs, except that,
upon satisfactory completion of such repairs, Landlord shall
deliver to Tenant any insurance proceeds received by Landlord for
the damage repaired by Tenant. Tenant shall give Landlord written
notice of such election within ten (10) days after receiving
Landlord's termination notice.
Section 6.2 Total or Substantial Destruction. If the Leased
Premises or Property is totally or substantially destroyed by any
cause whatsoever, or if the Building is substantially destroyed
(even though the Leased Premises or Property is not totally or
substantially destroyed), at Landlord's option this Lease shall
terminate as of the date the destruction occurred regardless of
whether Landlord receives any insurance proceeds. Landlord shall
notify Tenant of such election within thirty (30) days after the
occurrence of such total or substantial destruction.
Section 6.3 Temporary Reduction of Rent. If the Leased
Premises is destroyed or damaged and Landlord or Tenant repairs or
restores the Leased Premises pursuant to the provisions of this
Article 6, the Base Rent payable during the period of such damage,
repair and/or restoration shall be reduced according to the
percentage of the Leased Premises that is rendered wholly
untenantable. Except for such possible reduction in Base Rent,
Tenant shall not be entitled to any compensation, reduction, or
reimbursement from Landlord as a result of any damage, destruction,
repair, or restoration of or to the Leased Premises, Building or
Property.
Section 6.4 Waiver. Tenant waives the protection of any
statute, code, or judicial decision which grants a Tenant the right
to terminate a lease in the event of substantial destruction of the
Leased Premises, Building or the Property. Tenant agrees that the
provisions of Section 6.2 above shall govern the rights and
obligations of Landlord and Tenant in the event of any substantial
or total destruction to the Leased Premises, Building or Property.
Section 6.5 Condemnation. If all of any portion of the
Leased Premises is taken under the power of eminent domain or sold
under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or
sold on the date the condemning authority takes title or
possession, whichever occurs first. If more than twenty percent
(20%) of the floor area of the Leased Premises is taken, either
Landlord or Tenant may terminate this Lease as of the date the
condemning authority takes title or possession, by delivering
written notice to the other within ten (10) days after receipt of
written notice of such taking (or in the absence of such notice,
within ten (10) days after the condemning authority takes
possession). If neither Landlord nor Tenant terminates this Lease,
this Lease shall remain in effect as to the portion of the Leased
Premises not taken, except that the Base Rent shall be reduced in
proportion to the reduction in the floor area of the Leased
Premises. Any Condemnation award or payment shall be distributed
in the following order: (a) first, to any ground lessor, mortgagee
or beneficiary under a deed of trust encumbering the Property, the
amount of its interest in the Property; (b) second, to Tenant only
the amount of any award specifically designated for loss of or
damage to Tenant's trade fixtures or removable personal property,
and tenant improvements paid for by Tenant; and (c) third, to
Landlord, the remainder of such award, whether as compensation for
reduction in the value of the leasehold, the taking of the fee, or
otherwise. If this Lease is not terminated, Landlord shall repair
any damage to the Leased Premises caused by the Condemnation,
except that Landlord shall not be obligated to repair any damage
for which Tenant has been reimbursed by the condemning authority.
If the severance damages received by Landlord are not sufficient to
pay for such repair, Landlord shall have the right to either
terminate this Lease or make such repair at Landlord's expense.
ARTICLE 7.
ASSIGNMENT AND SUBLETTING
Section 7.1 Landlord's Consent Required. Tenant shall not
mortgage or assign its interest under this Lease or sublet the
Leased Premises of any portion thereof without the prior written
consent of Landlord, which consent shall not unreasonably be
withheld. No assignment or subletting shall relieve Tenant of its
obligations under this Lease.
ARTICLE 8.
DEFAULTS; REMEDIES
Section 8.1 Defaults.
A. Events of Default. The happening of any of the
following listed events shall constitute a breach of this Lease and
event of default ("Default") by Tenant:
1. Tenant fails to pay any rent payable under this
Lease on or before the due date thereof;
2. Tenant fails to fully and properly perform any
act required of it in the performance of this Lease, or otherwise
fails to comply with any term or provision hereof within fifteen
(15) days' written notice;
3. Tenant or any of its creditors files any
petition or pleading to declare Tenant a bankrupt of the
adjudication in bankruptcy of Tenant under any bankruptcy law or
act;
4. The appointment by any court or under any law
of a receiver, trustee, or other custodian of the property, assets,
or business of Tenant;
5. The assignment by Tenant of all or any part of
its property or assets for the benefit of its creditors;
6. The levy, execution, attachment or taking of
property, assets or of the leasehold interest of Tenant by process
of law or otherwise in satisfaction of any judgment, debt or claim;
or
7. Any event of Default under that certain
Warehouse Space Lease Agreement of even date herewith by and
between Landlord and Tenant for Sections 2.6 and 2.8 in the
Building.
Section 8.2 Remedies.
A. Remedies. Upon the happening of any Default,
Landlord, if it shall so elect, may (i) terminate this Lease and
resume possession of the Leased Premises for Landlord's own
purposes; (ii) collect each installment of rent when the same
matures; (iii) accelerate rents for the remainder of the Term of
this Lease; (iv) extend such sums or perform such actions as it
deems advisable to cure such Default and hold Tenant liable for the
cost thereof, and (v) enter the Leased Premises with process of law
and terminate Tenant's right of possession and release the Leased
Premises to any person, firm, or corporation, and upon such terms
and conditions as Landlord may deem advisable, as agent of Tenant
or otherwise, for whatever rent it can obtain, in which event
Tenant shall remain liable for the rent reserved herein, and all
other obligations hereunder. Landlord shall apply the proceeds of
such re-leasing (i) first to the payment of expenses that Landlord
may incur in the entering and re-leasing, and (ii) then to the
payment of the rent due by Tenant and the fulfillment of Tenant's
covenants and obligations hereunder. In this case of any
deficiency, Tenant shall remain liable. Tenant agrees that
Landlord may file suit to recover any sums due to Landlord under
this section from time to time and that such suit or recovery of
any amount due Landlord, or election to terminate Tenant's right to
possession only without terminating lease, Landlord may at its
option enter into the Leased Premises, remove Tenant's signs and
other evidences of tenancy, and take and hold possession; provided,
however, that such entry and taking shall not terminate this Lease
or release Tenant in whole or in part from Tenant's obligation to
pay rent hereunder for the full term or for any other obligation of
Tenant under this Lease.
B. Attorneys' Fees and Costs. In the event that
Landlord or Tenant fail to perform any of the covenants and
conditions of this Lease and it becomes necessary for either party
to employ an attorney or other agent to enforce any of the
provisions of this Lease, whether suit be brought or not, the
prevailing party shall be entitled to recover its reasonable
attorneys' fees and all costs, including such fees and costs on
appeal or in bankruptcy, from the other party.
C. No Waiver by Landlord. Nothing herein contained
shall be deemed to be a waiver by Landlord of its statutory lien to
rent, and the remedies, rights and privileges of Landlord in the
case of Default of Tenant as set forth above shall not be
exclusive, and in addition thereto, Landlord may also exercise and
enforce all its rights at law or in equity which it may otherwise
have as a result of Tenant's Default hereunder. Landlord is herein
specifically granted all of the rights of a secured creditor under
the Uniform Commercial Code with respect to the property in which
Landlord has been granted a security interest by Tenant.
ARTICLE 9.
PROTECTION OF LENDERS
Section 9.1 Subordination. This Lease shall be subject and
subordinate at all times to the terms of any ground or underlying
leases which now exist or may hereafter be executed affecting the
Leased Premises under which Landlord shall claim, and to the liens
of any mortgages or deeds of trust in any amount or amounts
whatsoever now or hereafter existing encumbering the Leased
Premises, Building or Property, without the necessity of having
further instruments executed by the Tenant to effect such
subordination. So long as the Tenant shall pay the rent due and
comply with, abide by, and discharge the terms, conditions,
covenants, and obligations on its part to be kept and performed
hereunder, the peaceable possession of Tenant in and to the Leased
Premises for the Term shall not be disturbed in the event of the
foreclosure of any such mortgage or deed of trust or in the event
of a termination of any ground or underlying leases affecting the
Leased Premises.
Section 9.2 Attornment. If Landlord's interest in the
Property is acquired by any ground lessor, beneficiary under a deed
of trust, mortgagee, or purchaser at a foreclosure sale, Tenant
shall attorn to the transferee of or successor to Landlord's
interest in the Leased Premises or Property and recognize such
transferee or successor as Landlord under this Lease. Tenant
waives the protection of any statute or rule of law which gives or
purports to give Tenant any right to terminate this Lease or
surrender possession of the Leased Premises or Property upon the
transfer of Landlord's interest.
Section 9.3 Signing of Documents. Tenant shall sign and
deliver any instrument or documents necessary or appropriate to
evidence or confirm any such attornment and subordination. Such
documents may contain such provisions as are customarily required
by any ground lessor or deed of trust holder or mortgagee. Tenant
hereby makes, constitutes and irrevocably appoints Landlord, or any
transferee or successor of Landlord, the Tenant's attorney-in-fact
to execute and deliver any such instrument or document if Tenant
fails to do so within ten (10) days of receiving a written request
therefor.
Section 9.4 Estoppel Certificates. Tenant shall from time to
time, upon not less than ten (10) days' prior written request by
Landlord or any mortgagee or ground lessor of the Property, deliver
to Landlord or such mortgagee or ground lessor a statement in
writing certifying: (1) that this Lease is unmodified and in full
force and effect or, if there have been modifications, that this
Lease, as modified, is in full force and effect; (2) the amount of
Base Rent then payable under this Lease and the date to which rent
has been paid; (3) that Landlord is not in default under this
Lease, or, if in default, a detailed description of such
default(s); (4) that Tenant is or is not in possession of the
Leased Premises, as the case may be; and (5) such other information
as may be requested.
ARTICLE 10.
MISCELLANEOUS PROVISIONS
Section 10.1 Waiver of Subrogation. Landlord and Tenant each
hereby waive any and all rights of recovery against the other, or
against the officers, employees, agents or representatives of the
other, for loss of or damage to its property or the property of
others under its control, if such loss or damage is covered by any
insurance policy in force (whether or not described in the Lease)
at the time of such loss or damage. Upon obtaining the policies of
insurance described herein, Landlord and Tenant shall give notice
to the insurance carrier or carriers of the foregoing mutual waiver
of subrogation.
Section 10.2 Landlord's Liability: Certain Duties.
A. As used in the Lease, the term "Landlord" means only
the current owner or owners of the fee title to the Leased
Premises, Building or Property or the leasehold estate under a
ground lease of the Leased Premises, Building or Property at the
time in question. Each Landlord is obligated to perform the
obligations of Landlord under this Lease only during the time such
Landlord owns such interest or title. Any Landlord who transfers
its title or interest is relieved of all liability with respect to
the obligations of Landlord under this Lease to be performed on or
after the date of transfer, provided that such transfer is not for
the primary purpose of avoiding such obligations. However, each
Landlord shall deliver to its transferee all funds previously paid
by Tenant if such funds have not yet been applied under the terms
of this Lease. Tenant agrees that it shall look solely to the
estate and property of the Landlord in the Property for collection
of any judgment (or other judicial process) requiring the payment
of money by Landlord of its obligations under this Lease subject to
the prior rights of any ground or underlying holder of any mortgage
covering the Property or Landlord's interest therein.
B. Landlord shall not be in default under this Lease
unless Landlord (or such ground lessor, mortgagee or beneficiary)
fails to cure or diligently pursue a cure of such nonperformance
within thirty (30) days after receipt of Tenant's notice or such
longer time as is reasonably necessary provided that such cure is
commenced within such thirty (30) days period and thereafter
pursued with reasonable diligence.
Section 10.3 Security Deposit. Upon the execution of this
Lease, Tenant shall deposit with Landlord a letter of credit in the
amount of $111,876.75 in form and content and issued by a bank
satisfactory to Landlord in Landlord's sole and unrestricted
discretion (the "Letter of Credit") to secure the faithful
performance by Tenant of all the terms, covenants and conditions in
this Lease on the part of Tenant to be fulfilled, kept, observed
and performed, including without limitation, such terms, covenants
and conditions which become applicable upon expiration or
termination of the Term. In the event of any Default and without
prejudice to any other remedy or remedies which Landlord may have
on account thereof, Landlord may draw upon or demand payment on the
Letter of Credit to the full extent of the credit regardless of the
amount required to cure such Default, whereupon Landlord shall
apply all or a portion of the proceeds of the Letter of Credit to
cure such Default. Landlord shall deliver to Tenant a copy of any
such written demand. Upon such application, Tenant shall pay
Landlord the amount so applied, which shall be added to the
balance, if any, of such proceeds from the Letter of Credit, as a
security deposit so that the amount of Landlord's security shall be
restored to $111,876.75, with the understanding that (a) such
security deposit or any portion thereof not previously applied, or
from time to time such other portions thereof, may be applied to
the curing of any default that may then exist, without prejudice to
any other remedy or remedies which Landlord may have on account
thereof, and upon such application, Tenant shall pay Landlord on
demand the amount so applied, which shall be added to the security
deposit so the same shall be restored to the original $111,876.75
amount; (b) that should the Leased Premises be conveyed by Landlord
the security deposit or any portion thereof not previously applied
may be turned over to Landlord's grantee, and if the same be turned
over as aforesaid, Tenant hereby releases Landlord from any and all
liability with respect to the security deposit and/or its
application or return, and Tenant agrees to look to such grantee
for such application or return; (c) that Landlord or its successor
shall not be obligated to hold the security deposit as a separate
fund, but on the contrary may commingle the same with its other
funds; (d) that if Tenant shall faithfully fulfill, keep, and
perform and observe all of the covenants, conditions, and
agreements in this Lease set forth and contained on the part of
Tenant to be fulfilled, kept, performed and observed, the security
deposit or the part or portion thereof not previously applied or
the Letter of Credit, if not drawn upon to the full extent of the
credit, shall be returned to the Tenant without interest no later
than thirty (30) days after the expiration of the Term of this
Lease or any renewal or extension thereof, provided Tenant has
vacated the Leased Premises and surrendered possession thereof to
Landlord at the expiration of said term or any extension or renewal
thereof as provided herein; (e) in the event that Landlord
terminates this Lease or Tenant's right to possession, Landlord may
apply the security deposit and/or proceeds from the Letter of
Credit against all damages suffered to the date of such termination
and/or may retain the security deposit and/or proceeds from the
Letter of Credit to apply against such damages as may be suffered
or shall accrue thereafter by reason of Tenant's default; and (f)
in the event any bankruptcy, insolvency, reorganization or other
credit-debtor proceedings shall be instituted by or against Tenant,
or its successors or assigns, the security deposit and/or proceeds
from the Letter of Credit shall be deemed to be applied first to
the payment of any rents and/or other charges due Landlord for all
periods prior to the institution of such proceedings, and the
balance, if any, may be retained or paid to Landlord in partial
liquidation of Landlord's damages.
Section 10.4 Severability. A determine by a court of
competent jurisdiction that any provision of this Lease or any part
thereof is illegal or unenforceable shall not cancel or invalidate
the remainder of such provision or this Lease, which shall remain
in full force and effect.
Section 10.5 Interpretation. The captions of the Articles or
Sections of this Lease are to assist the parties in reading this
Lease and are not a part of the terms or provisions of this Lease.
Whenever required by the context of this Lease, the singular shall
include the plural and the plural shall include the singular. The
masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions
of Tenant the term "Tenant" shall include Tenant's agents,
employees, contractors, invitees, successors or others using the
Leased Premises, Building or Property with Tenant's expressed or
implied permission.
Section 10.6 Incorporation of Prior Agreements;
Modifications. This Lease is the only agreement between the
parties pertaining to the lease of the Leased Premises, Building or
Property and no other agreements are effective. All amendments to
this Lease shall be in writing and signed by all parties. Any
other attempted amendment shall be void.
Section 10.7 Notices. All notices required or permitted
under this Lease shall be in writing and shall be personally
delivered or sent by certified mail, return receipt requested,
postage prepaid. Notices to Tenant and Landlord shall be delivered
to the party's respective address specified above. All notices
shall be effective upon delivery or attempted delivery. Either
party may change its notice address upon written notice to the
other party. Written notice of any Default with respect to
Tenant's duties and obligations hereunder shall be given by
Landlord to:
Xxxx Xxx Knit Products Division
Xxxx Xxx Corporation
Xxxx Xxxxxx Xxx 0000
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
With an informational copy to:
Xxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Esquire
Xxxx Xxx Corporation shall have the right, but not the obligation,
to cure any such Default in its sole discretion within ten (10)
days after such notice is deposited in a U.S. Postal Service
receptacle, postage prepaid and properly addressed.
Section 10.8 Radon Gas Notice. Radon is a naturally
occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing
may be obtained from your county public health unit.
Section 10.9 Waivers. All waivers must be in writing and
signed by the waiving party. Landlord's failure to enforce any
provision of this Lease or its acceptance of rent shall not be a
waiver and shall not prevent Landlord from enforcing that provision
or any other provision of this Lease in the future. No restrictive
endorsement or statement on a payment check from Tenant or in a
letter accompanying a payment check shall be binding on Landlord.
Landlord may, with or without notice to Tenant, negotiate such
check without being bound to the conditions of such restrictive
endorsement or statement.
Section 10.10 No Recordation. Tenant shall not record this
Lease or memorandum of this Lease.
Section 10.11 Joint and Several Liability. All parties
signing this Lease as Tenant shall be jointly and severally liable
for all obligations of Tenant.
Section 10.12 Force Majeure. If Landlord cannot perform any
of its obligations due to events beyond Landlord's control, the
time provided for performing such obligations shall be extended by
a period of time equal to the duration of such events. Events
beyond Landlord's control include, but are not limited to, acts of
God, war, civil commotion, labor disputes, strikes, fire, floor or
other casualty, shortages of labor or material, government
regulation or restriction and weather conditions.
Section 10.13 Execution of Lease. This Lease may be executed
in counterparts, and, when all counterpart documents are executed,
the counterparts shall constitute a single binding instrument. The
delivery of this Lease by Landlord to Tenant shall not be deemed to
be an offer and shall be binding upon either party until executed
and delivered to both parties.
Section 10.14 Holding Over. Any holding over by the Tenant
after the expiration of this Lease shall be construed as a Tenancy
at Sufferance, unless such occupancy is with the prior written
consent of the Landlord, in which event the Tenant will be a tenant
from month to month, upon the same terms and conditions of this
Lease. Acceptance by the Landlord of rent after such termination
shall not constitute a renewal.
Section 10.15 Time. Time is of the essence of this Lease.
ARTICLE 11.
BROKERS
Tenant covenants, represents and warrants that Tenant had no
dealings or negotiations with any broker or agent other than
Phoenix Realty Group, Inc. in connection with the consummation of
this Lease. Landlord agrees to pay all commissions due to Phoenix
Realty Group, Inc. Tenant and Landlord covenant and agree to hold
each other harmless and indemnify each other from and against any
and all costs, expenses (including reasonable attorneys' fees
before trial, at trial, on appeal and in bankruptcy) or liability
for any compensation, commissions, or charges claimed by any broker
or agent with respect to this Lease or the negotiation thereof.
ARTICLE 12.
CONFIDENTIALITY
Tenant and its officers, directors, employees, agents and
representatives shall not disclose the subject matter or terms of
the transaction contemplated by this Lease unless prior written
consent to such disclosure is obtained from Landlord, which consent
may be withheld at Landlord's sole discretion.
ARTICLE 13.
EXHIBITS
All exhibits attached hereto shall be deemed to be a part
hereof and are hereby incorporated.
ARTICLE 14.
COLLATERAL ASSIGNMENT
Tenant shall collaterally assign all its rights under this
Lease to Xxxx Xxx Knit Products ("SLKP"), which is a division of
Xxxx Xxx Corporation, a Maryland corporation ("SLC"), to secure
Tenant's obligations under that certain Warehouse Services
Agreement dated effective as of December 1, 1994, by and between
Tenant and SLKP. Landlord hereby acknowledges and consents to such
collateral assignment provided that if SLKP shall exercise its
rights under the collateral assignment, SLKP or an assignee of SLKP
("Assignee") shall be required, within the ten (10) day notice and
cure period described in Section 10.7 and prior to taking
possession of the Leased Premises, to assume in writing all duties
and obligations of Tenant under this Lease accruing or arising from
and after the date of assumption of this Lease and to provide
assurances satisfactory to Landlord that all obligations of SLKP
under this Lease are obligations of SLC. In the event SLKP or its
Assignee shall not have assumed this Lease and provided such
assurances within the ten (10) day notice and cure period or the
Default specified in Landlord's written notice to SLC shall not
have been cured within the time period allowed by Landlord, neither
SLC nor SLKP shall have any further rights with respect to this
Lease. If SLKP elects to appoint an Assignee to assume this Lease,
such Assignee shall have a net worth of no less than Five Million
Dollars ($5,000,000.00) and shall be approved by Landlord in
writing, which approval shall not unreasonably be withheld or
delayed. In no event shall SLKP be construed as the tenant under
this Lease prior to SLKP's assumption of this Lease, nor shall SLKP
be liable for any of Tenant's duties and obligations under this
Lease accruing or arising prior to SLKP's assumption of this Lease.
IN WITNESS WHEREOF, Tenant and Landlord have caused this Lease
to be duly executed in duplicate as of the date first above written
by their respective duly authorized officers or agents.
Signed, sealed and delivered
in the presence of: LANDLORD:
JACKSONVILLE CENTER, INC., a
Florida corporation
/S/ X. XXXXX WEBB_____________ By:__/S/ ARIS NEWTON__________
Name:_W. Xxxxx Webb___________ Name:_Aris Newton__________
Title:_President___________
/S/ R. PARK NEWTON____________
Name:_R. Park Newton__________
TENANT:
XXXXX & XXXX TERMINAL WAREHOUSE
COMPANY, INC., a Florida
corporation
/S/ X. Xxxxx Webb_____________ By:_/S/ XXXXXX DUKE___________
Name:_W. Xxxxx Webb___________ Name:_Thomas Duke__________
Title:_President___________
/S/ R. PARK NEWTON____________
Name:_R. Park Newton__________
2257-004-240298.08
EXHIBIT A
LEGAL DESCRIPTION AND SITE PLAN OF PROPERTY
EXHIBIT B
IMPROVEMENTS
Landlord's Work: Prior to commencement of the Term,
Landlord will, at Landlord's sole cost
and expense, clean the mezzanine office
in section 1.2 and the restroom/break
room areas in sections 1.2, 1.3, 1.5 and
1.7.
Tenant Improvements: Notwithstanding the provisions of Section
5.5, Landlord will allow locations to be
painted on the floors of the Leased
Premises and guard rails installed for
the area under the mezzanine in Section
1.3.
EXHIBIT C
EXCEPTED ITEMS
