STANDARD INDUSTRIAL LEASE
Date of Lease: April 17, 1998
Landlord: B-K-N Corporation, an Ohio corporation
Tenant: Fix-Corp International, Inc., a Delaware corporation
Premises: As shown on EXHIBIT "A", which Premises include a parking area
and that certain building (the "Building") located at 000
Xxxxxxxxx 000xx Xxxxxx, Xxxxx Xxxxx Xxxxx, Xxxxxxx
Rentable Area of Premises: 65,000 square feet which is stipulated and agreed by
the parties.
Commencement Date: The date Landlord obtains fee simple title to the Premises
evidenced by a fully executed Closing Statement. Landlord
shall deliver possession of the Premises to Tenant on the
Commencement Date.
Expiration Date: 10 years after Commencement Date
Lease Term: 10 years
Base Rent
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PERIOD $/PSF ANNUAL MONTHLY
Entire Lease Term $4.50 $292,500.00 $24,375.00
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Security Deposit: $ 48,750.00, payable within 120 days of demand pursuant to the
Promissory Note in the form attached hereto as EXHIBIT "D".
Permitted Use of Premises: Manufacture of vertical blinds and plastic pallets
in a closed loop injection molding process or any other business purpose
provided that such use does not violate any applicable laws or regulations
("Permitted Use")
Tenant's Address for Notices:
Tenant: Fix-Corp International, Inc.
The Premises
Landlord's Address for Notices:
B-K-N Corporation
The Spectrum Building, Suite 219
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
With copies to:
Holland & Knight LLP
Xxx Xxxx Xxxxxxx Xxxx.
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
ATTENTION : Xxxx X. Xxxxxxxxx Esq.
Amount of General Comprehensive Liability Insurance: $ 1,850, 000.00
Tenant's Real Estate Broker: Xxxxxx and Janus Insurance Agency
Tenant's Real Estate Broker:
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Landlord's Real Estate Broker: Xxxxxxx & Xxxxxxxxx of Florida, Inc.
IF THIS LEASE IS NOT EXECUTED BY LANDLORD AND TENANT ON OR BEFORE APRIL 17,
1998, IT SHALL BE NULL, VOID AND OF NO FORCE AND EFFECT.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease
and agree to the attached Lease Terms
as of this 17th day of April, 1998.
WITNESSES: "LANDLORD"
/s/ Xxxx Xxxxxx B-K-N CORPORATION, an Ohio corporation
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/s/ X. Xxxxx By: /s/ S. Xxxxxx Xxxx
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(As to Landlord) Name:
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Title: Chairman
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(SEAL)
WITNESSES: "TENANT"
/s/ Xxxxxx X. Xxxxx FIX-CORP International, Inc., an
----------------------------------- Delaware corporation
/s/ Xxxx Xxxxxxxxx By: /s/ Xxxx X. XxXxxxxxxxxx
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(As to Tenant) Name: Xxxx X. XxXxxxxxxxxx
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Title: Vice President
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(SEAL)
LEASE TERMS
1. PREMISES
Landlord leases to Tenant and Tenant leases from Landlord the Premises
described herein, and attached hereto as EXHIBIT "A" and by this reference
incorporated herein ("Premises"). The Premises is leased and Tenant accepts the
Premises in its "as-is" condition. Tenant acknowledges that Landlord has no
obligation to repair or improve the Premises or contribute to the cost of same.
Notwithstanding the foregoing, Landlord agrees to pay Tenant the amount of any
credits designated for maintenance and repair of the Building, which Landlord
receives from the Seller of the Premises ("Seller") at the time of Landlord's
purchase of the Property. Tenant agrees to immediately perform all such repairs
and maintenance not performed by Seller and described in the Purchase and Sale
Agreement between Seller and Landlord. It is hereby agreed by both parties that
security of the Premises is the sole responsibility of the Tenant and that the
Landlord has no liability for breach of security to the Premises.
2. RENT
A. RENT. Commencing with the ninth month of the Lease Term, and
until the Expiration Date, Tenant will pay as the base rent for the Premises
("Base Rent") the amounts set forth above, with same being payable without
demand, setoff or deduction, in advance, on or before the first day of each
month, in equal monthly installments of the amounts set forth above plus
applicable sales and other such taxes as are now or later enacted. Base Rent
also includes all non-controllable expenses for the Premises, except that all
non-controllable expenses shall be paid when due, commencing with the
Commencement Date, through the Expiration Date. Non-controllable expenses means
real estate taxes and assessments, insurance costs, utility costs and any other
costs regarding the Premises. The term "Rent" shall refer collectively to Base
Rent and Additional Rent. The term "Additional Rent" is sometimes used herein to
refer to any and all other sums payable by Tenant hereunder. Any Rent payable
for a portion of a month shall be prorated based upon the number of days in the
applicable calendar month.
B. LATE CHARGE. Tenant covenants and agrees to pay a liquidated
late charge in the amount of ten percent (10%) of the amount due for any payment
not paid within 3 days of its due date.
3. SECURITY DEPOSIT
Tenant, concurrently with the execution of this Lease, has delivered
to Landlord a Promissory Note for the Security Deposit in the form attached
hereto as EXHIBIT "D". If Tenant fails to faithfully perform the terms and
conditions of this Lease, Landlord, at Landlord's option, may at any time apply
the Security Deposit or any part thereof toward the payment of the Rent and/or
Additional Rent and/or toward the performance of Tenant's obligations under this
Lease; in such event, within five (5) days after notice, Tenant will deposit
with Landlord cash sufficient to restore the Security Deposit to its original
amount. The Security Deposit is not liquidated damages. Landlord will return the
unused portion of the Security Deposit to Tenant within thirty (30) days after
the Expiration Date if Tenant is not in violation of any of the provisions of
this Lease. Landlord may (but is not obligated to) exhaust any or all rights and
remedies against Tenant before resorting to the Security Deposit. Landlord will
not be required to pay Tenant any interest on the Security Deposit nor hold same
in a separate account.
4. USE
Tenant will use and occupy the Premises solely for a Permitted Use, as
defined herein. Tenant will not commit waste upon the Premises nor suffer or
permit the Premises or any part of them to be used in any manner, or suffer or
permit anything to be done in or brought into or kept in the Premises or the
Building, which would: (i) violate any law or requirement of public
authorities, (ii) annoy or offend other tenants or their patrons or interfere
with the normal operations of plumbing or other mechanical or electrical systems
of the Building or (iii) constitute a public or private nuisance.
5. UTILITY SERVICES
A. GENERAL. The Tenant shall pay directly all charges for electric,
telephone and any other utilities used or consumed in the Premises. If Tenant
requires utility services in addition to or in excess of those currently
provided to the Premises, Tenant shall pay all costs of bringing such services
to the Premises and for the use of such services, but Tenant shall not bring
additional utilities or utility services to the Premises without the express
written consent of Landlord.
B. INTERRUPTION OF SERVICES. It is understood and agreed that
Landlord does not warrant that any of the services referred to above will be
free from interruption. Tenant acknowledges that any one or more of such
services may be
suspended by reason of accident or repairs, alterations or improvements
necessary to be made, or by reason of operation of law, or other causes beyond
the control of Landlord. No such interruption at discontinuance of service will
be deemed an eviction or a disturbance of Tenant's use and possession of the
Premises or any part thereof, or render Landlord liable to Tenant for damages or
abatement of Rent or relieve Tenant from the responsibility of performing any of
Tenant's obligations under this Lease.
6. TENANT'S REPAIRS AND MAINTENANCE
During the Lease Term, Tenant will repair, maintain, and replace, if
necessary, the entire Premises including any equipment outside of and
exclusively serving the Premises. Tenant agrees to promptly perform, at Tenant's
cost, all repairs, abatement, remediation and improvements to correct all
matters, outlined in the inspection report ("Inspection Report") attached as
EXHIBIT "B", and in the Phase I ("Phase I") attached as EXHIBIT "C" and
undertake to bring the Premises into compliance with all applicable laws and
regulations to Landlord's satisfaction.
7. TENANT'S ALTERATIONS
During the Lease Term, Tenant will make no alterations, additions or
improvements in or to the Premises of any kind of nature (any and all of such
alterations, additions or improvements are collectively referred to in this
Lease as the "Alteration(s)"), without the prior written comment of Landlord,
which consent shall not be unreasonably withheld. At Landlord's option, Landlord
may, at the expiration of the Lease Term, require Tenant, at Tenant's expense,
to remove Alterations made by or on behalf of Tenant and to restore the Premises
to their original condition.
8. ASSIGNMENT AND SUBLETTING
A. Except as provided below with respect to assignment of this Lease
following Tenant's bankruptcy, Tenant will not assign this Lease, nor sublet all
of the Premises, nor license concessions or lease departments therein, nor
pledge or encumber by mortgage or other instruments its interest in this Lease
(each individually and collectively referred to in this Section as a "transfer")
without first obtaining the consent of Landlord, which consent Landlord may
withhold in its sole and absolute discretion, except as provided below. This
prohibition includes, without limitation, any subletting or assignment which
would otherwise occur by operation of law, merger, consolidation,
reorganization, transfer or other change of Tenant's corporate, partnership or
propriety structure. Any transfer to or by a receiver or trustee in any federal
or state, bankruptcy, insolvency, or similar proceeding shall be subject to, and
in accordance with, the provisions described below. Consent by Landlord to any
transfer shall not constitute a waiver of the requirement for such consent to
any subsequent transfer.
B. Landlord shall be entitled to arbitrarily withhold its consent to
any transfer described in 8(A) above, unless all of the following conditions are
satisfied, in which event, Landlord agrees that it shall not unreasonably
withhold its consent to the transfer in question:
(i) In Landlord's reasonable judgment, the proposed
assignee or subtenant or occupant is engaged in a business or activity, which is
a Permitted Use;
(ii) The proposed assignee or subtenant or occupant is a
reputable person/entity of good character and with sufficient financial worth to
meet its obligations under the sublease or lease, and Landlord has been
furnished with reasonable proof thereof;
(iii) The form of the proposed sublease or instrument of
assignment or occupancy shall be reasonably satisfactory to Landlord, and shall
comply with the applicable provisions of this Paragraph; and
(iv) The proposed subtenant or assignee or occupant shall
not be entitled, directly or indirectly, to diplomatic or sovereign immunity and
shall be subject to the service of process in, and the jurisdiction of the
courts of the State of Florida.
(v) Such transferee shall assume in writing, in a form
acceptable to Landlord, all of Tenant's obligations hereunder and Tenant shall
provide Landlord with a copy of such assumption/transfer document;
(vi) Tenant to which the Premises were initially leased
shall continue to remain liable under this Lease for the performance of all
terms, including but not limited to, payment of Rent due under this Lease; and
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(vii) Tenant shall give notice of a requested transfer to
Landlord, which notice shall be accompanied by (a) a conformed or photostatic
copy of the proposed assignment or sublease, the effective or commencement date
of which shall be at least 60 days after the giving of such notice, (b) a
statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Premises, (c) current financial information with respect to the proposed
assignee or subtenant, including, without limitation, its most recent financial
report and (d) such other information as Landlord may reasonably request.
C. Notwithstanding anything contained herein to the contrary,
Tenant may sublease portions of the Premises pursuant to commercially
reasonable subleases and uses which are not prejudicial to Landlord, with the
consent of Landlord, which consent shall not be unreasonably withheld.
9. TENANT'S INSURANCE COVERAGE
A. GENERAL. Tenant agrees that, at all times during the Lease Term
(as well as prior and subsequent thereto if Tenant or any of Tenant's Agents
should then use or occupy any portion of the Premises), it will keep in force,
with an insurance, company licensed to do business in the State of Florida, and
at least A-rated in the most current edition of Best's Insurance Reports and
acceptable to Landlord, (i) without deductible, comprehensive general liability
insurance, including coverage for bodily injury and death, property damage and
personal injury and contractual liability as referred to below, in the amount of
not less than the amount set forth at the beginning of this Lease, combined
single limit per occurrence for injury (or death) and damages to property, (ii)
with deductible of not more than Five Thousand Dollars ($5,000.00), insurance on
an "All Risk or Physical Loss" basis, including sprinkler leakage vandalism,
malicious mischief, fire and extended coverage, covering all of the Premises and
all improvements to the Premises, fixtures, furnishings, removable floor
coverings, equipment, signs and all other decoration or stock in trade, in the
amounts of not less than the full replacement value thereof, and (iii) workmen's
compensation and employer's liability insurance, if required by statute. Such
policies will: (i) include Landlord and such other parties as Landlord may
reasonably designate as additional insureds, (ii) be considered primary
insurance, (iii) include within the terms of the policy or by contractual
liability endorsement coverage insuring Tenant's indemnity obligations under
paragraphs 12 and 25H, and (v) provide that it may not be cancelled or changed
without at least thirty (30) days prior written notice from the company
providing such insurance to each party insured thereunder. Tenant will also
maintain throughout the Lease Term worker's compensation insurance with not less
than the maximum statutory limits of coverage.
B. EVIDENCE. The insurance coverages to be provided by Tenant will
be for a period of not less than one year. At least fifteen (15) days prior to
the Commencement Date, Tenant will deliver to Landlord original certificates of
all such paid-up insurance; thereafter, at least fifteen (15) days prior to the
expiration of any policy Tenant will deliver to Landlord such original
certificates as will evidence a paid-up renewal or new policy to take the place
of the one expiring.
10. WAIVER OF RIGHT OF RECOVERY
Except as provided in paragraphs 6, 12 and 25, neither Landlord nor
Tenant shall be liable to the other for any damage to any building, structure or
other tangible property, or any resulting loss of income, or losses under
worker's compensation laws and benefits, even though such loss or damage might
have been occasioned by the negligence of such party, its agents or employees.
The provisions of this paragraph shall not limit the indemnification for
liability to third parties pursuant to Section 12. As used in this paragraph
10, "damage" refers to any loss, destruction or other damage.
11. DAMAGE OR DESTRUCTION BY CASUALTY OR EMINENT DOMAIN
If by fire or other casualty or by eminent domain the Premises are
damaged or destroyed, Landlord will have the option of terminating this Lease or
any renewal thereof by serving written notice upon Tenant within one hundred and
eighty (180) days from the date of the casualty or taking and any prepaid Rent
or Additional Rent will be prorated as of the date of the destruction or taking
and the unearned portion of such Rent will be refunded to Tenant without
interest. If Landlord elects to restore the Premises, all Base Rent paid in
advance shall be apportioned as of the date of damage or destruction and all
such Base Rent as above described thereafter accruing shall be equitably and
proportionately adjusted according to the nature and extent of the destruction
or damage, pending substantial completion of rebuilding, restoration or repair.
Tenant will have no claim to the condemnation award. Landlord shall not be
liable for interruption to Tenant's business or for damage to or replacement or
repair of Tenant's personal property (including, without limitation, inventory,
trade fixtures, floor coverings, furniture and other property removable by
Tenant under the provisions of this Lease) or to any leasehold improvements
installed in the Premises by or on behalf of Tenant, all of which damage,
replacement or repair shall be undertaken and completed by Tenant promptly.
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12. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION
A. PERSONAL PROPERTY. All personal property placed or moved into
the Building will be at the sole risk of Tenant or other owner. Landlord will
not be liable to Tenant or others for any damage to person or property arising
from Environmental Defaults, as hereafter defined, theft, vandalism, HVAC
malfunction, the bursting or leaking of water pipes, any act or omission of any
cotenant or occupant of the Building or of any other person, or otherwise.
B. LIMITATIONS. Notwithstanding any contrary provision of this
Lease: (i) Tenant will look solely (to the "extent insurance coverage is not
applicable or available) to the interest of Landlord (or its successor as
Landlord hereunder) in the Premises for the satisfaction of any judgment or
other judicial process requiring the payment of money as a result of any
negligence or breach of this Lease by Landlord or its successor or of Landlord's
managing agent (including any beneficial owners, partners, corporations and/or
others affiliated or in any way related to Landlord or such successor or
managing agent) and Landlord has no personal liability hereunder of any kind,
and (ii) Tenant's sole right and remedy in any action or proceeding concerning
Landlord's reasonableness (where the same is required under this Lease) will be
an action for declaratory judgment and/or specific performance.
C. INDEMNITY. Tenant agrees to indemnify, defend and hold harmless
Landlord and its agents from and against all claims, causes of actions,
liabilities, judgments, damages, losses, costs and expenses, including
reasonable attorneys' fees and costs, including appellate proceedings and
bankruptcy proceedings, incurred or suffered by Landlord and arising from or in
any way connected with the Premises or the use thereof or any acts, omissions,
neglect or fault of Tenant or any of Tenant's Agents, including, but not limited
to, any breach of this Lease or any death, personal injury or property damage
occurring in or about the Premises or the Building or arising from Environmental
Defaults, as hereafter defined. Tenant will reimburse Landlord upon request for
all costs incurred by Landlord in the interpretation and enforcement of any
provisions of this Lease and/or the collection of any sums due to Landlord under
this Lease, including collection of agency fees, and reasonable attorneys' fees
and costs, regardless of whether litigation is commenced, and through all
appellate actions and proceedings, including bankruptcy proceedings, if
litigation is commenced. The foregoing claims, causes of actions, liabilities,
judgments, damages, losses, costs and expenses shall include but not be limited
to any of same arising from Tenant's failure to comply with any of the
requirements of Americans with Disabilities Act ("ADA") within the Premises.
This indemnification shall survive termination of the Lease.
13. COMPLIANCE WITH LAWS AND PROCEDURES
Tenant, at its sole cost, will promptly comply and promptly cause the
Premises and Building to come into compliance with all applicable laws,
guidelines, rules, regulations and requirements, whether of federal, state, or
local origin, applicable to the Premises and the Building, including, but not
limited to, Environmental Laws as defined herein and the Americans with
Disabilities Act, 42 U.S.C. Section 12101 et seq, and Tenant shall indemnify,
defend, and hold harmless Landlord from, and against any and all claims, costs,
losses, damages, expenses or liability arising from its failure to comply with
same.
14. RIGHT OF ENTRY
Upon not less than 24 hours verbal notice to Tenant, Landlord and its
agents will have the right to enter the Premises during all reasonable hours to
make necessary repairs to the Premises. In the event of an emergency, Landlord
or its agents may enter the Premises at any time, without notice, to appraise
and correct the emergency condition. Said right of entry will, after reasonable
notice, likewise exist for the purpose of removing placards, signs, fixtures,
alterations, or additions which do not conform to this Lease. Landlord or its
agents will have the right to exhibit the Premises at any time to prospective
tenants within one hundred and eighty days (180) before the Expiration Date of
the Lease.
15. DEFAULT
A. EVENTS OF DEFAULT BY TENANT. If (1) Tenant vacates, abandons or
surrenders all or any part of the Premises prior to the Expiration Date, or (2)
Tenant fails to fulfill any of the terms or conditions of this Lease or (3) the
appointment of a trustee or a receiver to take possession of all or
substantially all of Tenant's assets occurs, or if the attachment, execution or
other judicial seizure of all or substantially all of Tenant's assets located at
the Premises, or of Tenant's interest in this Lease, occurs, or (4) Tenant or
any of its successors or assigns or any guarantor of this Lease ("Guarantor")
should file any voluntary petition in bankruptcy, reorganization or arrangement,
or an assignment for the benefit of creditors or for similar relief under any
present or future statute, law or regulation relating to relief of debtors, or
(5) Tenant or any of its successors or assigns or any Guarantor should be
adjudicated bankrupt or have an involuntary petition in bankruptcy,
reorganization or arrangement filed against it, or (6) Tenant shall permit,
allow or suffer to exist any lien, judgment, writ, assessment, charge,
attachment or execution upon Landlord's or Tenant's
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interest in this Lease or to the Premises, and/or the fixtures, improvements and
furnishings located thereon; then, Tenant shall be in default hereunder.
B. TENANT'S GRACE PERIODS. If (1) Tenant fails to pay Rent,
Additional Rent on the date due or (2) Tenant fails to cure any other default
within thirty (30) days after notice from Landlord specifying the nature of such
default (unless such default is of a nature that it cannot be completely cured
within said thirty (30) day period and steps have been diligently commenced to
cure. or remedy it within such thirty (30) day period and are thereafter pursued
with reasonable diligence and in good faith, in which case Tenant shall have up
to another thirty (30) days to cure), then Landlord shall have such remedies as
are provided under this Lease and/or under the laws of the State of Florida.
C. REPEATED LATE PAYMENT. Regardless of the number of times of
Landlord's prior acceptance of late payments and/or late charges, (i) if
Landlord notifies Tenant twice in any 6-month period that Base Rent or any
Additional Rent has not been paid when due, then any other late payment within
such 6-month period shall automatically constitute a default hereunder and (ii)
the mere acceptance by Landlord of late payments in the past shall not,
regardless of any applicable laws to the contrary, thereafter be deemed to waive
Landlord's right to strictly enforce this Lease, including Tenant's obligation
to make payment of Rent on the exact day same is due, against Tenant.
D. LANDLORD'S DEFAULT. If Tenant asserts that Landlord has failed
to meet any of its obligations under this Lease, Tenant shall provide written
notice ("Notice of Default") to Landlord specifying the alleged failure to
perform, and Tenant shall send by certified mail, return receipt requested, a
copy of such Notice of Default to any and all mortgage holders, provided the
Tenant has been previously advised of the address(es) of such mortgage
holder(s). Landlord shall have a thirty (30) day period after receipt of the
Notice of Default in which to commence curing any non-performance by Landlord,
and Landlord shall have as much time thereafter to complete such cure as is
necessary so long as Landlord's cure efforts are diligent and continuous. If
Landlord has not begun the cure within thirty (30) days of receipt of the Notice
of Default, or Landlord does not thereafter diligently and continuously attempt
to cure then Landlord shall be in default under this Lease. If Landlord is in
default under this Lease, then the mortgage holder(s) shall have an additional
thirty (30) days, after receipt of a second written notice from Tenant, within
which to cure such default or, if such default cannot be cured within that time,
then such additional time as may be necessary so long as their efforts am
diligent and continuous.
16. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT
A. LANDLORDS OPTIONS. If Tenant is in default of this Lease,
Landlord may, at its option, in addition to such other remedies as may be
available under Florida law:
(1) terminate this Lease and Tenant's right of possession; or
(2) terminate Tenant's right to possession but not the Lease
and/or proceed in accordance with any and all provisions of paragraph B below.
B. LANDLORD'S REMEDIES.
(1) Landlord may without further notice reenter the Premises
either by force or otherwise and dispossess Tenant by summary proceedings or
otherwise, as well as the legal representative(s) of Tenant and/or other
occupant(s) of the Premises, and remove their effects and hold the Premises as
if this Lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end; and/or
at Landlord's option,
(2) All Rent and Additional Rent for the balance of the Term
will, at the election of Landlord, be accelerated and the present worth of same
for the balance of the Lease Term, net of amounts actually collected by
Landlord, shall become immediately due thereupon and be paid, together with all
expenses of every nature which Landlord may incur such as (by way of
illustration and not limitation) those for attorneys' fees, brokerage,
advertising, and refurbishing the Premises in good order or preparing them for
re-rental; and/or at Landlord's option,
(3) Landlord may re-let the Premises or any part thereof, either
in the name of Landlord or otherwise, for a term or terms which may at
Landlord's option be less than or exceed the period which would otherwise have
constituted the balance of the Lease Term, and may grant concessions or free
rent or charge a higher rental than that reserved in this Lease; and/or at
Landlord's option,
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(4) Tenant or its legal representative(s) will also pay to
Landlord as liquidated damages any deficiency between the Rent and all
Additional Rent hereby reserved and/or agreed to be paid and the net amount, if
any, of the rents collected on amount of the lease or leases of the Premises for
each month of the period which would otherwise have constituted the balance of
the Lease Term.
C. LANDLORD'S REMEDIES IN BANKRUPTCY.
(1) Anything contained herein to the contrary notwithstanding,
if termination of this Lease shall be stayed by order of any court having
jurisdiction over any proceeding described in subparagraph A. of this Paragraph,
or by federal or state statute, then, following the expiration of any such stay,
or if Tenant or Tenant as debtor-in possession or the trustee appointed in any
such proceeding (being collectively referred to as "Tenant" only for the
purposes of this Paragraph) shall fail to assume Tenant's obligations under this
Lease within the period prescribed therefor by law or within fifteen (15) days
after entry of the order for relief or as may be allowed by the Court, or if
Tenant shall fail to provide adequate protection of Landlord's right, title and
interest in and to the Premises or adequate assurance of the complete and
continuous future performance of Tenant's obligations under this Lease,
Landlord, to the extent permitted by law or by leave of the court having
jurisdiction over such proceeding, shall have the right, at its election, to
terminate this Lease on fifteen (15) days' notice to Tenant and upon the
expiration of said fifteen (15) day period this Lease shall cease and expire as
aforesaid and Tenant shall immediately quit and surrender the Premises as
aforesaid. Upon the termination of this Lease as provided above, Landlord,
without notice, may re-enter and repossess the Premises using such force for
that purpose as may be necessary without being liable to indictment, prosecution
or damages therefor and may dispossess Tenant by summary proceedings or
otherwise.
(2) For purposes of the preceding paragraph (1), adequate
protection of Landlord's right, title and interest in and to the Premises, and
adequate assurance of the complete and continuous future performance of Tenant's
obligations under this Lease shall include, without limitation, the following
requirements:
(i) that Tenant comply with all of its obligations under
this Lease;
(ii) that Tenant pay to Landlord, on the first day of
each month occurring subsequent to the entry of such order, or the effective
date of such stay, a sum equal to the amount by which the Premises diminished in
value during the immediately proceeding monthly period, but, in no event, an
amount which is less than the aggregate Rent payable for such monthly period;
(iii) that Tenant continue to use the Premises in the
manner originally required by this Lease;
(iv) that Landlord be permitted to supervise the
performance of Tenant's obligations under this Lease;
(v) that Tenant pay to Landlord within fifteen (15) days
after entry of such order or the effective date of such stay, as partial
adequate protection against future diminution in value of the Premises and
adequate assurance of the complete and continuous future performance of Tenant's
obligations under this Lease, an additional security deposit in an amount
acceptable to Landlord;
(vi) that Tenant has and will continue to have
unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that sufficient funds will be
available to fulfill the obligations of Tenant under this Lease;
(vii) that if Tenant assumes this Lease and proposes to
assign the same (pursuant to Title 11 U.S.C. Section 365, or as the same may be
amended) to any person who shall have made a bona fide offer to accept an
assignment of this Lease on terms acceptable to such court having competent
jurisdiction over Tenant's estate, then notice of such proposed assignment,
setting forth (x) the name and address of such person, (y) all of the terms and
conditions of such offer, and (z) the adequate assurance to be provided Landlord
to assure such person's future performance under this Lease, including, without
limitation, the assurance referred to in Title 11 U.S.C. Section 365(b) (3), as
it may be amended, shall be given to Landlord by Tenant no later than fifteen
(15) days after receipt by Tenant of such offer, but in any event no later than
thirty (30) days prior to the date that Tenant shall make application to such
court for authority and approval to enter into such assignment, and assumption,
and Landlord shall thereupon have the prior right and option, to be exercised by
notice to Tenant given at any time prior to the effective date of such proposed
assignment to accept, or to cause Landlord's designee to accept, an assignment
of this Lease upon the same terms and conditions and for the same
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consideration, if any, as the bona fide offer made by such person less any
brokerage commissions which may be payable out of the commission to be paid by
such person for the assignment of this Lease; and
(viii) that if Tenant assumes this Lease and proposes to
assign the same, and Landlord does not exercise its option pursuant to Paragraph
(vii) of this Paragraph, Tenant hereby agrees that:
(A) such assignee shall have a net worth not less
than the net worth of Tenant as of the Commencement Date, or such Tenant's
obligations under this Lease shall be unconditionally guaranteed by a person
having a net worth equal to Tenant's net worth as of the Commencement Date;
(B) such assignee shall not use the Premises
except subject to all the restrictions contained in this Lease;
(C) such assignee shall assume in writing all of
the terms, covenants and conditions of this Lease including, without limitation,
all of such terms, covenants and conditions respecting the Permitted Use and
payment of Rent;
(D) such assignee shall indemnify Landlord
against, and pay to Landlord the amount of, any payments which Landlord may be
obligated to make to any Mortgagee by virtue of such assignment; and
(E) if such assignee makes any payment to Tenant,
or for Tenant's account, for the right to assume this Lease (including, without
limitation, any lump sum payment, installment payment or payment in the nature
of rent over and above the Rent payable under this Lease), Tenant shall pay
over to Landlord one-half of any such payment.
17. LIENS
A. GENERAL. In accordance with the applicable provisions of the
Florida Mechanic's Lien Law and specifically Florida Statutes, Section 713. 10,
no interest of Landlord whether personally or in the Premises, or in the
underlying land or Building of which the Premises are a part or the leasehold
interest aforesaid shall be subject to liens for improvements made by Tenant or
caused to be made by Tenant hereunder. Further, Tenant acknowledges that
Tenant, with respect to improvements or alterations made by Tenant or caused to
be made by Tenant hereunder, shall promptly notify the contractor making such
improvements to the Premises of this provision exculpating Landlord's liability
for such liens.
B. DEFAULT. Notwithstanding the foregoing, if any mechanic's lien
or other lien, attachment, judgment, execution, writ, charge or encumbrance is
filed against the Building or the Premises or this leasehold, or any
alterations, fixtures or improvements therein or thereto, as a result of any
work action or inaction done by or at the direction of Tenant or any of Tenant's
Agents, Tenant will discharge same of record (by statutory bond or otherwise)
within ten (10) days after the filing thereof, failing which Tenant will be in
default under this Lease. In such event, without waiving Tenant's default,
Landlord, in addition to all other available rights and remedies, without
further notice may discharge the same of record by payment, bonding or
otherwise, as Landlord may elect, and upon request Tenant will reimburse
Landlord for all costs and expenses so incurred by Landlord plus interest
thereon at the rate of eighteen percent (18%) per annum.
18. NOTICES
Notices to Tenant under this Lease will be addressed to Tenant and
mailed or delivered to the Premises. Notices to Landlord under this Lease (as
well as the required copies thereof) will be addressed to Landlord (and its
agents) and mailed or delivered to the address set forth above. Notices will be
personally delivered or given by registered or certified mail, return receipt
requested. As used herein, personal delivery includes delivery by overnight
courier. Notices delivered personally will be deemed to have been given as of
the date of delivery and notices given by mail will be deemed to have been given
forty-eight (48) hours after the time said properly addressed notice is placed
in the mail. Each party may change its address from time to time by written
notice given to the other as specified above.
19. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION; ATTORNMENT
Landlord has the unrestricted right to convey, mortgage and refinance
the Premises, or any part thereof. Tenant agrees, within seven (7) days after
notice, to execute and deliver to Landlord or its mortgagee or designee, such
instruments as Landlord or its mortgagee may require, certifying the amount of
the Security Deposit and whether this Lease is in full force and
7
effect, and listing any modifications. This estoppel certificate is intended to
be for the benefit of Landlord, any purchaser or mortgagee of Landlord, or any
purchaser or assignee of Landlord's mortgage. The estoppel certificate will
also contain such other information as Landlord or its designee may request.
This Lease is and at all times will be subject and subordinate to all present
and future mortgages or ground leases which my affect the Premises, and to all
recastings, renewals, modifications, consolidations, replacements, and
extensions of any such mortgage(s), and to all increases and voluntary and
involuntary advances made thereunder. If any mortgagee of the Premises comes
into possession or ownership of the Premises, or acquires Landlord's interest by
foreclosure of the mortgage or otherwise, upon the mortgagee's request Tenant
will attorn to the mortgagee. The foregoing will be self-operative and no
further instrument of subordination will be required.
20. TRANSFER BY LANDLORD
If Landlord's interest in the Premises terminates by reason of a bona
fide sale or other transfer, Landlord will, upon transfer of the Security
Deposit to the new owner, thereupon be released from all further liability to
Tenant under this Lease.
21. SURRENDER OF PREMISES; HOLDING OVER
A. SURRENDER. Tenant agrees to surrender the Premises to Landlord
on the Expiration Date (or sooner termination, of the Lease Term pursuant to
other applicable provisions hereof) in as good condition as they were at the
commencement of Tenant's occupancy, ordinary wear and tear, and damage by fire
and windstorm excepted.
B. RESTORATION. In all events, Tenant will promptly restore all
damage caused in connection with any removal of Tenant's personal property.
Tenant will pay to Landlord, upon request, all damages that Landlord may suffer
on account of Tenant's failure to surrender possession as and when aforesaid and
will indemnify Landlord against all liabilities, costs and expenses (including
all reasonable attorneys' fees and costs if any) arising out of Tenant's delay
in so delivering possession, including claim of any succeeding tenant.
C. HOLDOVER. If Tenant shall be in possession of the Premises after
the expiration of the Term,, in the absence of any agreement extending the Term,
the tenancy under this Lease shall become one from month to month, terminable by
either party on thirty (30) days' prior notice, and shall be subject to all of
the terms and conditions of this Lease as though the Term had been extended from
month to month, except that the Base Rent payable hereunder for each month
during said holdover period shall be equal to twice the monthly installment of
Base Rent payable during the last month of the Term.
D. NO SURRENDER. No offer of surrender of the Premises, by delivery
to Landlord or its agent of keys to the Premises or otherwise, will be binding
on Landlord unless accepted by Landlord, in writing, specifying the effective
surrender of the Premises. At the expiration or termination of the Lease Term,
Tenant shall deliver to Landlord all keys to the Premises and make known to
Landlord the location and combinations of all locks, safes and similar items.
No receipt of money by Landlord from Tenant after the Expiration Date (or sooner
termination) shall reinstate, continue or extend the Lease Term, unless Landlord
specifically agrees to same in writing signed by Landlord at the time such
payment is made by Tenant.
22. MANDATORY ARBITRATION.
ANY CONTROVERSY OR CLAIM BETWEEN THE PARTIES HERETO, INCLUDING, BUT
NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS LEASE, INCLUDING ANY
CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING
ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION
SERVICES, INC. (J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE
EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY
ARBITATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO
THIS LEASE MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS LEASE APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN MIAMI-DADE
COUNTY, FLORIDA, AND ADMINISTERED BY ENDISPUTE, INC., D/B/A/J.M.S./ENDISPUTE WHO
WILL APPOINT AN ARBITRATOR; IF J.A.M.S./ENDISPUTE IS UNABLE OR LEGALLY PRECLUDED
FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION
WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE
DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR SHALL
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ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH
HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS LEASE SHALL BE DEEMED TO
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS LEASE OR TO LIMIT THE RIGHT OF LANDLORD
TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT
LIMITED TO) INJUNCTIVE RELIEF. LANDLORD MAY OBTAIN SUCH PROVISIONAL OR
ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION
PROCEEDING BROUGHT PURSUANT TO THIS LEASE. THE INSTITUTION OR MAINTENANCE OF AN
ACTION FOR PROVISIONAL OR ANCILLARY REMEDIES SHALL NOT CONSTITUTE A WAIVER OF
THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE
THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
23. QUIET ENJOYMENT
In accordance with and subject to the terms and provision of this
Lease, Landlord warrants that it has full right to execute and to perform under
this Lease and to grant the estate demised and that Tenant, upon Tenant's
payment of the Rent and performing all of the terms, conditions, covenants, and
agreements contained in this Lease, shall peaceably and quietly have, hold and
enjoy the Premises during the full Lease Term.
24. ENTIRE AGREEMENT
This Lease, together with its exhibits fully incorporated into this
Lease by this reference, contains the entire agreement between the parties
hereto regarding the subject matters referenced herein and supersedes all prior
and written agreements between them regarding such matters. This Lease may be
modified only by an agreement in writing dated and signed by Landlord and Tenant
after the date hereof.
25. HAZARDOUS MATERIALS
A. REPRESENTATIONS. Tenant represents, warrants and covenants that
(1) the Premises will not be used for any dangerous, noxious or offensive trade
or business and that it will not cause or maintain a public or private nuisance
there, (2) it will not bring, suffer, allow, generate, beat, store, use or
dispose of Hazardous Substances at the Premises, (3) it shall insure that its
operations at all times comply with all Environmental Laws (as hereinafter
defined), (4) it shall cause the Premises to come into compliance and shall
maintain compliance with all applicable Environmental Laws and (5) Tenant will
keep the Premises free of any lien imposed pursuant to any Environmental Laws.
B. REPORTING REQUIREMENTS. Tenant warrants that it will promptly
deliver to the Landlord, (i) copies of any documents received from the United
States Environmental Protection Agency and/or any state, county or municipal
environmental or health agency concerning the condition of the Premises or
Tenant's operations upon the Premises; (ii) copies of any documents submitted
by the Tenant to the United States Environmental Protection Agency or any state,
county or municipal environmental or health agency concerning the condition of
the Premises or its operations on the Premises, including but not limited to
copies of permits, licenses, annual filings, registration forms and, (iii) upon
the request of Landlord, Tenant shall provide Landlord with evidence of
compliance with Environmental Laws.
C. TERMINATION, CANCELLATION, SURRENDER. At the expiration or
earlier termination of this Lease, Tenant shall surrender the Premises to
Landlord free of any and all Hazardous Substances and in compliance with all
Environmental Laws and to the complete satisfaction of Landlord. Landlord may
require at Tenant's sole expense at the end of the term, a clean-site
certification, environmental audit or site assessment. Tenant's obligations
under paragraphs 6, 13 and paragraph 25 herein extend to any and all Hazardous
Substances in, on or under the Premises regardless of source and irrespective of
whether the Hazardous Substances pre-dated Tenant's occupancy of the Premises.
D. ACCESS AND INSPECTION. Landlord shall have the right but not the
obligation, at all times during the term of this Lease to (i) enter upon and
inspect the Premises, (ii) conduct tests and investigations and take samples to
determine whether Tenant is in compliance with the provisions of this Article,
and (ii) request lists of all Hazardous Substances used, stored or located on
the Premises; the cost of all such inspections, tests and investigations to be
borne by Tenant. Promptly upon the written request of Landlord, from time to
time, Tenant shall provide Landlord, at Tenant's expense, with an environmental
site assessment or environmental audit report prepared by an environmental
engineering firm acceptable to Landlord to assess with a reasonable degree
9
of certainty the presence or absence of any Hazardous Substances and the
potential costs in connection with abatement, cleanup, or removal of any
Hazardous Substances found on, under, at, or within the Premises. Tenant will
cooperate with Landlord and allow Landlord and Landlord's representatives access
to any and all parts of the Premises and to the records of Tenant with respect
to the Premises for environmental inspection purposes at any time. In
connection therewith, Tenant hereby agrees that Landlord or Landlord's
representatives may perform any testing upon or of the Premises that Landlord
deems reasonably necessary for the evaluation of environmental risks, costs, or
procedures, including soils or other sampling or coring.
E. VIOLATIONS - ENVIRONMENTAL DEFAULTS. Tenant shall give to
Landlord immediate verbal and follow-up written notice of any actual or
threatened spills, releases or discharges of Hazardous Substances on the
Premises, caused by the acts or omissions of Tenant or its agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors.
Tenant covenants to promptly investigate, clean up and otherwise remediate any
spill, release or discharge of Hazardous Substances caused by the acts of
omissions of Tenant or its agents, employees, representatives, invitees,
licensees, subtenants, customers or contractors at Tenant's sole cost and
expense; such investigation, clean up and remediation to be performed to the
satisfaction of Landlord and after Tenant has obtained Landlord's written
consent. Tenant shall return the Premises to the condition existing prior to
the introduction of any such Hazardous Substances. Landlord reserves the right
to require the cleanup of Hazardous Substances to levels beyond that required by
Environmental Laws.
(1) In the event of (a) a violation of an Environmental Law, (b)
a release, spill or discharge of a Hazardous Substance on or from the Premises,
or (c) the discovery of an environmental condition requiring response, or (d) an
emergency environmental condition (collectively "Environmental Defaults"),
Landlord shall have the right, but not the obligation, to immediately enter the
Premises, to supervise and approve any actions taken by Tenant to address the
violation release or environmental condition; and in the event Tenant fails to
immediately address such violation, release, or environmental condition, or if
the Landlord deems it necessary, then Landlord may perform, at Tenant's expense,
any lawful actions deemed necessary by Landlord to address or cure to Landlord's
satisfaction the violation, release, or environmental condition.
(2) Landlord has the right, but not the obligation to cure any
Environmental Defaults, has the right to suspend some or all of the operations
of the Tenant until it has determined to its sole satisfaction that appropriate
measures have been taken, and has the right to terminate this Lease upon the
occurrence of an Environmental Default.
F. ADDITIONAL RENT. Any expenses which the Landlord incurs, which
are to be at Tenant's expense pursuant to this Article, will be considered
Additional Rent under this Lease and shall be paid by Tenant on demand by
Landlord.
G. ASSIGNMENT AND SUBLETTING. Notwithstanding anything to the
contrary in this Lease, the Landlord may condition its approval of any
assignment or subletting by Tenant to an Assignee or Subtenant that in the sole
judgment of the Landlord does not create any additional environmental exposure.
H. INDEMNIFICATION. Tenant shall indemnify, defend (with counsel
approved by Landlord) and hold Landlord and Landlord's affiliates, shareholders,
directors, officers, employee's and agents harmless from and against any and all
claims, judgments, damages (including consequential damages), penalties, fines,
liabilities, losses, suits, administrative proceedings, costs and expenses of
any kind or nature, known or unknown, contingent or otherwise, which arise out
of or in anyway related to (1) Hazardous Substances in, on or under the
Premises, (2) the acts or omissions of Tenant, its agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors
during or after the term of this Lease (including, but not limited to,
attorneys', consultant, laboratory and expert fees and including without
limitation, diminution in the value of the Premises, damages for the loss or
restriction on use of rentable or usable space or any amenity of the Premises
and damages arising from any adverse impact on marketing of space), arising from
or related to the use, presence, transportation, storage, disposal, spill,
release or discharge of Hazardous Substances on or about the Premises and (3)
breach of any condition, obligation or representation under paragraph 25
herein. This indemnification shall survive the termination of the Lease.
I. DEFINITIONS.
(1) "Hazardous Substance" means, (i) asbestos and any asbestos
containing material and any substance that is then defined or listed in, or
otherwise classified pursuant to, any Environmental Laws or any applicable laws
or regulations as a "hazardous substance", "hazardous material", "hazardous
waste", "infectious waste", "toxic substances", "toxic pollutant" of any other
formulation intended to define, list, or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, or Toxicity Characteristic
Leaching Procedure (TCLP) toxicity, (ii) any petroleum and drilling fluids,
produced waters, and other wastes associated with the exploration,
10
development or production of crude oil, natural gas, or geothermal resources and
(iii) petroleum products, polychlorinated biphenyls, urea formaldehyde, radon
gas, radioactive material (including any source, special nuclear, or by-product
material), and medical waste.
(2) "Environmental Laws" collectively means and includes all
present and future laws and any amendments (whether common law, statute, rule,
order, regulation or otherwise), permits and other requirements or guidelines of
governmental authorities applicable to the Premises and relating to the
environment and environmental conditions or to any Hazardous Substance
(including, without limitation, CERCLA, 42 U.S.C. Section 9601, et. seq, the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901, et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the
Federal Water Pollution Control Act, 33 U.S.C. Section 1251, et seq., the Clean
Air Act, 33 U.S.C. Section 7401, et seq., the Clear Air Act, 42 U.S.C. Section
741, et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601-2629, the
Safe Drinking Water Act, 42 U.S.C. Section 300f-300j, the Emergency Planning and
Community Right-To-Know Act, 42 U.S.C. Section 1101, et seq., and any so-called
"Super Fund" or "Super Lien" law, or any law requiring the filing of reports and
notices relating to hazardous substances, environmental laws administered by the
Environmental Protection Agency, and any similar state and local laws and
regulations, all amendments thereto and all regulations, orders, decisions, and
decrees now or hereafter promulgated thereunder concerning the environment,
industrial hygiene or public health or safety.)
J. RADON. RADON GAS: Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risk 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.
26. PURCHASE OPTION
X. XXXXX OF OPTION. Landlord grants to Tenant an option to purchase
the Premises under the terms set forth herein (the "Option").
B. PURCHASE PRICE. Tenant shall have the option to purchase the
Premises at the fixed price of U.S. $2,127,500.00 cash payable at closing. The
total purchase price, adjusted as set forth herein, is payable as follows:
(1) Tenant shall deposit the sum of Two Hundred Thousand Dollars
($200,000) with Landlord with its written notice of the exercise of the Option
(the "Option Deposit").
(2) At closing, Tenant shall deliver to Landlord (or the
designated escrow agent for the closing) the remainder of the purchase price,
together with all other funds required from Tenant hereunder, by certified wire
transfer.
Notwithstanding the foregoing, if Landlord obtains a written offer to
purchase the Premises during the Exercise Period from a third party unaffiliated
with Tenant for a purchase price less than $2,127,500.00 on terms and conditions
which Landlord would like to accept, then Landlord shall give Tenant notice
("Landlord's Notice") of the terms and conditions of such proposed sale. If
Tenant fails to notify Landlord within three (3) business days from the date of
Landlord's Notice that Tenant wishes to purchase the Premises on such terms and
conditions, Tenant shall have waived any and all rights it may have under this
paragraph to purchase the Premises. If Tenant notifies Landlord within three
(3) business days from the date of Landlord's Notice that Tenant accepts such
terms and conditions, then Tenant shall be deemed to have exercised its Option
hereunder and Tenant shall immediately deliver the Option Deposit to Landlord
and otherwise comply with this paragraph.
C. OPTION TERM. This Option shall commence an the Commencement Date
and shall continue until 90 days prior to the expiration of the fifth (5th) year
of the Lease Term (the "Exercise Period"). So long as no default exists
hereunder, Tenant may exercise its option at any time during the Exercise Period
by executing and delivering to Landlord written notice of Tenant's exercise of
the Option together with the Option Deposit. If Tenant fails to deliver such
notice and Option Deposit to Landlord within the Exercise Period, this Option
shall terminate. If after proper exercise of this Option, Tenant defaults in
its further obligations under this Xxxxxxxxx 00, Xxxxxxxx shall retain the
Option Deposit as its exclusive remedy hereunder and this Agreement shall
thereafter immediately terminate.
D. TITLE. Within fifteen (15) days after Tenant's exercise of this
Option, Tenant shall obtain at Tenant's cost, a binder or commitment of a
reputable title insurance company for a fee title insurance policy in favor of
Tenant, which commitment shall be in the standard form customarily used by such
title insurance company, shall be in the face amount equal to the purchase
price, and shall contain no exceptions other than exceptions to Landlord's title
existing on the Commencement Date or created by Tenant's sets or failure to
perform its obligations under this Lease. Landlord shall provide affidavits and
assurances required by the
11
title insurance company for deleting the mechanics' lien and parties in
possession exceptions. Tenant shall have ten (10) days after receipt of the
title insurance commitment in which to examine the same and to notify Landlord
that title is or is not acceptable, and if not acceptable, to describe the title
defects and encumbrances. If the title to the Premises is acceptable, closing
shall take place as provided herein. If the title is not acceptable, Landlord
shall have a period of time not to exceed sixty (60) days from the delivery of
the notice in which to remove the title defects and encumbrances, and Landlord
shall in good faith exercise all reasonable diligence and efforts to do so,
except that Landlord shall not be obligated to prosecute a quiet title action,
or institute any type of legal proceedings, or any defects caused by Tenant.
Tenant may waive any title defects and encumbrances not removed within the
sixty-day period. When all unwaived title defects and encumbrances have been
removed or cured, and Landlord has given Tenant proof thereof within the time
specified above or extended, closing shall take place within ten (10) days
thereafter. If Landlord does not remove the unwaived title defects and
encumbrances after the exercise of all reasonable diligence and efforts to do so
within the time specified above or extended, Landlord shall notify Tenant in
writing, stating the reasons therefor, and within ten (10) days thereafter
Tenant either shall, (1) waive the title defects and encumbrances and proceed
with closing or (2) withdraw from the transaction, release Landlord and
terminate the obligations of the parties hereunder.
E. CLOSING. Subject to Landlord's obligation to convey acceptable
title, closing shall take place forty-five (45) days after Tenant's exercise of
the Option at the law offices of Holland & Knight LLP, Xxx Xxxx Xxxxxxx
Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, or at such other place as the parties
may agree. Tenant shall pay the Florida documentary stamp tax required by law
with respect to the deed. Tenant shall pay all real estate taxes accrued during
the time of Landlord's ownership of the Premises for the year of closing.
Landlord shall convey by special warranty deed in recordable form.
F. SURVEY. After exercise of the Option, Tenant, at its sole cost,
may obtain a survey of the Premises. Any encroachment, setback violation, or
other violation shown thereon shall constitute a title defect and shall be
subject to the title corrective responsibilities of Landlord as provided in the
Section entitled "TITLE".
G. FIRPTA COMPLIANCE. Landlord represents to Tenant that Landlord
is not a "foreign person" as that term is defined in Section 7701 of the
Internal Revenue Code of 1954, as amended. Landlord will deliver to Tenant, at
closing, an affidavit attesting to that fact and showing Landlord's federal
taxpayer identification number.
27. MISCELLANEOUS
A. If any term or condition of this Lease or the application thereof
to any person or circumstance is, to any extent, invalid or unenforceable, the
remainder of this Lease, or the application of such term or condition to persons
or circumstances other than those as to which it is held invalid or
unenforceable, is not to be affected thereby and each term and condition of this
Lease is to be valid and enforceable to the fullest extent permitted by law.
B. Submission of this Lease to Tenant does not constitute an offer,
and this Lease becomes effective only upon execution and delivery by both
Landlord and Tenant. Tenant acknowledges that this Lease is specifically
conditioned upon Landlord obtaining a fee title interest in the Premises.
C. Tenant acknowledges that it has not relied upon any statement,
representation, prior or contemporaneous written or oral promises, agreements or
warranties, except such as are expressed herein.
D. Each party represents and warrants that it has not dealt with any
agent or broker in connection with this transaction except for the agents or
brokers specifically set forth above with respect to each Landlord and Tenant.
If either party's representation and warranty proves to be untrue, such party
will indemnify the other party against all resulting liabilities, costs,
expenses, claims, demands and causes of action, including reasonable attorneys'
fees and costs through all appellate actions and proceedings, if any. The
foregoing will survive the end of the Lease Term.
E. Neither this Lease nor any memorandum hereof will be recorded by
Tenant.
F. This Lease does not create, nor will Tenant have, any express or
implied easement for or other rights to air, light or view over or about the
Premises or any part thereof.
G. Landlord reserves the right, but has no obligation, to use,
install, monitor, and repair pipes, ducts and conduits within the walls,
columns, and ceilings of the Premises.
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H. It is acknowledged that each of the parties hereto has been fully
represented by legal counsel and that each of such legal counsel has contributed
substantially to the content of this Lease. Accordingly, this Lease shall not
be more strictly construed against either party hereto by reason of the fact
that one party may have drafted or prepared any or all of the terms and
provisions hereof.
I. Landlord makes no representations (express or implied) concerning
the Premises, including but not limited to, (i) the availability or
unavailability of licenses, permits or utilities for Tenant's Permitted Use;
(ii) the suitability of the Premises for Tenant's Permitted Use; and (iii)
whether the Premises comply with and Tenant's Permitted Use of the Premises are
permitted under all applicable laws and regulations, including applicable zoning
and land use laws and regulations (including but not limited to parking
requirements) and ADA. In all cases, Tenant shall be obligated to comply with
applicable laws and regulations and this Lease shall nevertheless remain in full
force and effect. Tenant acknowledges and agrees that Tenant is solely
responsible for performing all due diligence relating to the Premises, that
Tenant is satisfied with the Premises, and Tenant is not relying on any
statements or disclosures by Landlord relating to the Premises.
J. Notwithstanding anything to the contrary in this Lease, if
Landlord cannot perform any of its obligations due to events beyond the
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, hurricanes and floods
and other acts of God, war, civil commotion, labor disputes, strikes, fire,
flood or other casualty, shortages of labor or material, government regulation
or restriction and weather conditions.
K. Tenant agrees to pay, before delinquency, all taxes assessed
during the Lease Term agreement (i) all personal property, trade fixtures, and
improvements located in or upon the Premises and (ii) the occupancy interest of
Tenant in the Premises.
L. No waiver of any provision of this Lease by either party will be
deemed to imply or constitute a further waiver by such party of the same or any
other provision hereof. The rights and remedies of Landlord under this Lease or
otherwise are cumulative and are not intended to be exclusive and the use of one
will not be taken to exclude or waive the use of another, and Landlord will be
entitled to pursue all rights and remedies available to landlords under the laws
of the State of Florida. Landlord, in addition to all other rights which it may
have under this Lease, hereby expressly reserves all rights in connection with
the Building or the Premises not expressly and specifically granted to Tenant
under this Lease and Tenant hereby waives all claim for damages, loss, expense,
liability, eviction or abatement it has or may have against Landlord on account
of Landlord's exercise of its reserved rights.
M. No receipt of money by Landlord from Tenant at any time, or any
act, or thing done by, Landlord or its agent shall be deemed a release of Tenant
from any liability whatsoever to pay Rent, Additional Rent, or any other sums
due hereunder, unless such release is in writing, subscribed by a duly
authorized officer or agent of Landlord and refers expressly to this Section.
Any payment by Tenant or receipt by Landlord of less than the entire amount due
at such time shall be deemed to be on account of the earliest sum due. No
endorsement or statement on any check or any letter accompanying any check or
payment shall be deemed an accord and satisfaction. In the case of such a
partial payment or endorsement, Landlord may accept such payment, check or
letter without prejudice to its right to collect all remaining sums due and
pursue all of its remedies under the Lease.
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