Exhibit 10.21
AMENDMENT TO LEASE AGREEMENT
THIS AMENDMENT TO LEASE AGREEMENT (this "Amendment") is made effective
as of November 6, 2003, by and between G & G Holdings, Inc., a Florida
corporation ("G&G"), and Empire Financial Holding Company, a Florida corporation
("Empire Financial").
W I T N E S S E T H:
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WHEREAS, G&G and Empire Financial (as a result of an assignment by
Empire Financial Group, Inc.) are parties to that certain Lease Agreement, dated
August 13, 1999, as amended on October 14, 2000 and March 28, 2002 (the "Lease
Agreement" and capitalized terms defined in the Lease Agreement shall have the
same meaning when used in this Amendment), for office space located at 0000 Xxxx
Xxxxx Xxxx 000, Xxxxxxxx, Xxxxxxx 00000; and
WHEREAS, G&G and Empire Financial desire to amend the Lease Agreement
for the purpose of modifying, certain provisions of the Lease Agreement,
including, without limitation (i) the Term, (ii) the Rent, (iii) the Leaseable
Square Feet of Premises, (iv) the Tenant's ability to terminate the Lease
Agreement, (v) the Tenant's payment of Operating Expenses and (vi) Landlord's
remedies on default.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENTS.
(a) The section entitled "Basic Lease Information" of the
Lease Agreement is hereby amended by deleting the "Leaseable Square Feet of
Premises" provision in its entirety and substituting therefor a new "Leaseable
Square Feet of Premises" provision to read as follows:
"Leaseable Square Feet of Premises: 2,860 square feet, or 15%,
constituting space "A" ("Space A"), 2,259 square feet, or 12%,
constituting space "B" ("Space B") and 2,163 square feet, or
11%, constituting space "C" ("Space C"), each as delineated in
the survey attached hereto as ANNEX I. In addition, without
the payment of any additional Rent, the Tenant shall be
entitled to two reserved parking spaces adjacent to the
Building's rear entrance and unreserved parking spaces at the
rear of the Building for its employees, clients and guests."
(b) The section entitled "Basic Lease Information" of the
Lease Agreement is hereby amended by deleting the "Lease Expiration Date"
provision in its entirety and substituting therefor a new "Lease Expiration
Date" provision to read as follows:
"Lease Expiration Date: April 30, 2005."
G&G:________ Empire Financial:________
(c) Section (a) of the "Term and Rent" section of the Lease
Agreement is hereby amended by deleting Section (a) in its entirety effective as
of November 1, 2003 and substituting therefor a new Section (a) to read as
follows:
"Tenant agrees to pay Landlord base rent ("Base Rent") for
each of Space A, Space B and Space C in the amounts set forth
below, payable in advance in equal monthly installments, for
each and every calendar month of the Term of this Lease:
Total Annual Base Rent Monthly Base Rent
---------------------- -----------------
Space A: $53,625.00 $4,468.75
Space B: $42,356.25 $3,529.69
Space C: $40,556.25 $3,379.69
Notwithstanding any other provision of this Lease Agreement,
the Landlord agrees that the Tenant shall have the right to
set-off any payment owing to the Landlord to the extent of any
and all payments or other obligations due to but not yet
received by the Tenant or any affiliate of the Tenant from the
Landlord, Advantage Trading Group, Inc., Xxxxxxx X. Xxxxx or
the Xxxxxxx X. Xxxxx First Revocable Trust.
(d) Section (d)(i) and (ii) of the "Term and Rent" section of
the Lease Agreement is hereby amended by deleting Section (d)(i) and (ii) in its
entirety effective as of November 1, 2003. The Landlord and Tenant agree that no
adjustment shall be made at year end to the estimate of Operating Expenses paid
by the Tenant for the current year as was contemplated by such Section (d)(ii).
(e) Section (f)(i) of the "Term and Rent" section of the Lease
Agreement is hereby amended by deleting Section (f)(i) in its entirety effective
as of October 31, 2003.
(f) Immediately following the section of the Lease Agreement
entitled "Security Deposit" and immediately preceding the section of the Lease
Agreement entitled "Use of Premises", a new section entitled "Use of Building"
shall be inserted to read as follows:
"Landlord agrees that provided (i) this Lease is then in full
force and effect and (ii) the business being conducted in a
majority of the premises is financial services, Landlord will
not enter into any lease of space in the commercial office
building located at 0000 Xxxx Xxxxx Xxxx 000, Xxxxxxxx,
Xxxxxxx 00000 to a Financial Services Company (as defined
below), other than Advantage Trading Group, Inc. which shall
not provide retail brokerage services in the Building during
the term of this Lease. For the purposes of this Lease,
"Financial Services Company" shall mean a broker-dealer,
investment adviser or any entity whose business shall consist
of the sale, trading or clearing of securities."
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G&G:________ Empire Financial:________
(g) The "Alterations, Improvements and Signs" section of the
Lease Agreement is hereby amended by adding the following sentence immediately
after the first sentence of such section:
"Notwithstanding anything in the Lease Agreement to the
contrary, upon termination of this Lease Agreement for any
reason whatsoever, the Landlord agrees to post for not less
than 90 days after termination of the Lease Agreement, signs
supplied by the Tenant and reasonably acceptable to the
Landlord, both on the outside of the Building and at
appropriate locations in the common areas of the Building,
which signs shall contain information regarding the Tenant's
new business location."
(h) The "Utilities, Sales Tax, Property Taxes and Insurance"
section of the Lease Agreement is hereby amended by deleting the first paragraph
thereof in its entirety effective as of November 1, 2003 and substituting
therefor a new paragraph to read as follows:
"Notwithstanding the deletion of Sections (d)(i), (d)(ii) and
(f)(i), Tenant agrees that it will be responsible for the
payment of all utilities utilized by Tenant (including,
without limitation, water, sewer, telephone and electric), as
well as the payment of all sales taxes on the Base Rent and
Additional Rent due to the State of Florida (based upon the
Seminole County, Florida sales tax rate) and Tenant's
proportionate share of the ad valorem real property taxes for
the Property, which proportionate share the parties agree is
15% for Space A, 12% for Space B and 11% for Space C of the
total ad valorem real property taxes for the Property.
Further, the parties agree that Tenant will pay to Landlord,
on a monthly basis, its proportionate share of the Landlord's
actual out-of-pocket costs of operating the common areas of
the Property, including, without limitation, utilities,
maintenance costs and insurance, which proportionate share the
parties agree is 15% for Space A, 12% for Space B and 11% for
Space C. From time to time upon reasonable notice to the
Landlord, Tenant shall have the right to inspect the
Landlord's books and records pertaining to the payment of the
actual out-of-pocket costs of operating the common areas of
the Property."
(i) The "Entry for Inspection and Repairs" section of the
Lease Agreement is hereby amended by deleting the first paragraph thereof in its
entirety and substituting therefor a new paragraph to read as follows:
"Landlord, accompanied by an executive officer of Tenant,
shall have the right to enter the leased premises for
inspection from 4:30 P.M. to 6:00 P.M., Monday through Friday,
by giving Tenant 24 hours written notice, and, whenever
necessary, obtain a time compatible with Tenant, to make
repairs and alterations to the premises. Except as provided in
the immediately preceding sentence, Landlord shall not for any
reason whatsoever enter the leased premises."
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G&G:________ Empire Financial:________
(j) Immediately following the section of the Lease Agreement
entitled "Repairs, Alterations and Cleaning" and immediately preceding the
section of the Lease Agreement entitled "Tenant Duties", a new section entitled
"Keys, Locks and Premises Security" shall be inserted to read as follows:
"(a) Landlord shall provide, and Tenant shall possess, the
original keys, and all known copies of such keys, to all
exterior and interior locks of the premises. Landlord shall
not the right to nor shall possess any such keys during the
Term of this Lease.
(b) Tenant, at its own expense, shall have the right to (i)
hire a security guard and post such security guard on the
premises at all times and (ii) install a security system
and/or video cameras to protect the premises."
(k) The "Landlord's Remedies on Default" section of the Lease
Agreement is hereby amended by deleting the first sentence of this paragraph in
its entirety and substituting therefor a new first sentence to read as follows:
"If Tenant defaults in the payment of Rent, or defaults in the
performance of any of the other covenants or conditions of
this Lease, Landlord may give Tenant notice of such default
and if Tenant does not cure any rent default within seven
days, or such other default within 30 days, after receipt of
such notice (or if such other default is of such nature that
it cannot be completely cured within such period, if Tenant
does not commence such curing within 30 days and thereafter
proceeds with reasonable diligence and in good faith to cure
such default), then Landlord may take suitable and reasonable
legal action to remedy such default; provided, however, that
absent a court order issued by the appropriate court following
a legal proceeding where both Landlord and Tenant were
present, Landlord shall not have the right, and shall not
seek, for any reason whatsoever, to actually evict,
constructively evict or utilize self-help to prevent Tenant
from occupying, utilizing or quietly enjoying any or all of
the leased premises."
(l) Immediately following the section of the Lease Agreement
entitled "Landlord's Remedies on Default" and immediately preceding the section
of the Lease Agreement entitled "Deficiency", a new section entitled
"Termination" shall be inserted to read as follows:
"TERMINATION
Notwithstanding anything in the Lease Agreement to the
contrary, Tenant, in its sole discretion, may at any time
during the Term of this Lease terminate this Lease with
respect to Space A, Space B or Space C or any combination
thereof, without any payment or penalty, by giving Landlord at
least 60 days' prior written notice; provided, that if such
notice does not concern the termination of all of Space A,
Space B and Space C, this
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G&G:________ Empire Financial:________
Lease shall remain in full effect with respect to each other
Space not previously terminated in writing."
2. NO DEFAULT. The Landlord acknowledges and agrees that the Lease is
currently in full force and effect, that, subject to the accuracy of the
representation made by the Xxxxx First Revocable Trust and Xxxxx X. Xxxxx in
Section 2.1 of that certain Stock Purchase Agreement, dated as of even date
herewith, by and among Xxxxxxx X. Xxxxx, the Xxxxx First Revocable Trust and
Xxxxx X. Xxxxx, the Tenant is not in default in the payment of Base Rent or
Additional Rent through October 31, 2003 or in the performance of any of the
other covenants or conditions contained in the Lease Agreement and that all
existing Tenant signage has been approved by the Landlord.
3. NOTICES. Pursuant to the terms of the Lease Agreement, the Tenant
hereby notifies the Landlord that the Tenant designates the following name and
address for the giving of all notices under the Lease Agreement, which name and
address shall remain effective until the Tenant designates a new name and
address in the manner permitted by the Lease Agreement:
Empire Financial Holding Company
0000 Xxxx Xxxxx Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Chief Executive Officer
4. EFFECTIVE DATE. This Amendment shall be effective as of the date
hereof and from and after the date hereof, each reference in the Lease Agreement
to "this Agreement," "hereto", "hereunder" or words of like import, and all
references to the Lease Agreement in any and all agreements, instruments,
documents, notes, certificates and other writings of every kind and nature shall
be deemed to mean the Lease Agreement as modified and amended by this Amendment.
5. NO OTHER MODIFICATIONS. Except as otherwise expressly modified by
the terms and provisions of this Amendment, the Agreement shall remain in full
force and effect, and is hereby in all respects confirmed and ratified by the
parties hereto; and, except as expressly provided herein, nothing in this
Amendment will be construed as a waiver of any of the rights or obligations of
the parties under the Agreement.
6. GOVERNING LAW. This Amendment shall be deemed a contract made under
the laws of the State of Florida and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and to be performed entirely within such State.
7. COUNTERPARTS. This Amendment may be executed in counterparts and by
different parties hereto in separate counterparts each of which, when so
executed and delivered, shall be deemed to be an original and all of which when
taken together, shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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G&G:________ Empire Financial:________
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
G & G HOLDINGS, INC., a Florida corporation
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
President
EMPIRE FINANCIAL HOLDING COMPANY,
a Florida corporation
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Chief Executive Officer
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