INDENTURE OF LEASE
between
XXXXXX XXXXXX
- and -
THE XXXXX GROUP, INC.
---------------------------------
Dated as of January 1, 1995
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 PREMISES AND TERM OF LEASE.................................. 1
ARTICLE 2 POSSESSION AND CONDITION OF PREMISES........................ 2
ARTICLE 3 RENT........................................................ 2
ARTICLE 4 IMPOSITIONS AND UTILITIES................................... 3
ARTICLE 5 INSURANCE.................................................... 6
ARTICLE 6 DAMAGE OR DESTRUCTION AND
USE OF CASUALTY INSURANCE PROCEEDS........................... 9
ARTICLE 7 CONDEMNATION................................................ 10
ARTICLE 8 ASSIGNMENT AND SUBLETTING................................... 12
ARTICLE 9 REPAIRS AND MAINTENANCE..................................... 13
ARTICLE 10 CHANGES, ALTERATIONS AND ADDITIONS.......................... 13
ARTICLE 11 GOVERNMENTAL REQUIREMENTS
AND INSURANCE REQUIREMENTS.................................. 14
ARTICLE 12 DISCHARGE OF LIENS; BONDS................................... 15
ARTICLE 13 REPRESENTATIONS............................................. 16
ARTICLE 14 INDEMNIFICATION OF LANDLORD................................. 16
ARTICLE 15 RIGHT OF ACCESS............................................. 17
ARTICLE 16 SELF-HELP................................................... 18
ARTICLE 17 PERMITTED USE; NO UNLAWFUL OCCUPANCY........................ 19
ARTICLE 18 EVENTS OF DEFAULT, CONDITIONAL LIMITATIONS,
REMEDIES, ETC............................................... 19
ARTICLE 19 NOTICES..................................................... 25
ARTICLE 20 SUBORDINATION............................................... 26
ARTICLE 21 SALE OPTION................................................. 27
ARTICLE 22 CERTIFICATE BY TENANT AND LANDLORD.......................... 28
-i-
ARTICLE 23 CONSENTS AND APPROVALS...................................... 28
ARTICLE 24 SURRENDER AT END OF TERM.................................... 29
ARTICLE 25 QUIET ENJOYMENT............................................. 29
ARTICLE 26 INVALIDITY OF CERTAIN PROVISIONS............................ 29
ARTICLE 27 RECORDING OF MEMORANDUM..................................... 30
ARTICLE 28 WAIVER OF TRIAL BY JURY..................................... 30
ARTICLE 29 BROKER...................................................... 30
ARTICLE 30 MISCELLANEOUS............................................... 31
ACKNOWLEDGMENTS
EXHIBIT A
EXHIBIT B
-ii-
THIS INDENTURE OF LEASE made as of the 1st day of January, 1995,
between XXXXXX XXXXXX ("Landlord"), having an office c/o Four M Corporation,
000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, and THE XXXXX GROUP, INC.
("Tenant"), a Delaware corporation, having an office at 00-00 Xxxxx Xxxxxx
Xxxxxx, Xx. Xxxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
ARTICLE 1
---------
PREMISES AND TERM OF LEASE
--------------------------
SECTION 1.01. Landlord, for and in consideration of the rentals to be
paid and all of the terms, covenants and agreements hereinafter set forth, to
be kept, observed and performed by Tenant, does hereby demise and lease to
Tenant and Tenant does hereby hire and take from Landlord, subject to the
terms, covenants, conditions and reservations hereof, and the Exhibits annexed
hereto and made a part hereof:
All that certain lot, piece or parcel of land, with the buildings
and improvements thereon, situate, lying and being in the City of
Jacksonville, County of Xxxxx and State of Florida bounded and
described as set forth in Exhibit A annexed hereto and made a
part hereof.
TOGETHER WITH fixtures, appurtenant to, attached to or used in
connection with the operation of said premises; and
TOGETHER WITH all easements, appurtenances and other rights and
privileges now or hereafter belonging or appertaining to said premises. All of
the foregoing property leased to Tenant pursuant to this Section 1.01 is here
called the "Premises".
SUBJECT ONLY TO the encumbrances and conditions of title set forth on
Exhibit B annexed hereto and made a part hereof (the "Permitted Exceptions").
TO HAVE AND TO HOLD the Premises unto Tenant, for a term of twenty
(20) years (the "Term") (or until such Term shall sooner cease and expire as
hereinafter provided) commencing on January 1, 1995 (the "Commencement Date")
and expiring on December 31, 2014 both dates inclusive, unless sooner
terminated in accordance with the terms of this Lease.
ARTICLE 2
---------
POSSESSION AND
CONDITION OF PREMISES
---------------------
Tenant acknowledges and represents to Landlord that it has inspected
and examined, or caused to be inspected and examined, the Premises and that it
is familiar with the physical condition and state of repair thereof, and Tenant
does hereby agree to accept same in its existing condition and state of repair
and Landlord shall have no obligation to do any work or make any installation,
repair or alteration of any kind to or in respect thereof. Tenant acknowledges
and agrees that, except as otherwise expressly set forth in this Lease, no
representations, statements, or warranties, express or implied, as to
condition, fitness for a particular use or otherwise, have been made by or on
behalf of Landlord.
ARTICLE 3
---------
RENT
----
SECTION 3.01. Tenant shall pay rent at the net rent per annum (herein
sometimes called the "Base Rent") of One Hundred Sixty-Six Thousand Eight
Hundred ($166,800) Dollars commencing on the lst day of January, 1995, and
continuing through and including December 31, 2014, in equal monthly
installments of Thirteen Thousand Nine Hundred ($13,900) Dollars, as increased
pursuant to Section 3.02 below. Tenant agrees to pay the Base Rent in lawful
money of the United States which shall be legal tender in payment of all debts
and dues, public and private, at the time of payment, in equal monthly
installments aforesaid in advance on the first day of each month during the
Term, at the office of Landlord or such other place as Landlord may designate
by notice, without any set-off or deduction whatsoever.
SECTION 3.02.
(a) Commencing on the first day of January, 1996, and as of the first
day of each year thereafter for the remainder of the Term (said date and each
anniversary thereof being herein called an "Adjustment Date"), the Base Rent
shall be increased automatically by an amount (the "Increase") equal to the
product derived by multiplying the Base Rent in effect on the day preceding
such Adjustment Date by the percentage (the "Current CPI Percentage") by which
the Consumer Price Index in effect on each such Adjustment Date shall exceed
the Consumer Price Index in effect on the first day of the year immediately
preceding such Adjustment Date (the Current CPI Percentage being equal to the
fraction, the numerator of which shall be the Consumer Price Index on the
relevant Adjustment Date less the Consumer Price Index on the first day of
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the year immediately preceding such Adjustment Date, as the case may be, and
the denominator of which shall be the Consumer Price Index on the first day of
the year immediately preceding Adjustment Date, as the case may be).
(b) As used herein, "Consumer Price Index" shall mean the Consumer
Price Index published by the Bureau of Labor Statistics of the United States
Department of Labor for All Urban Consumers, the Northeastern United States
Area, or any successor index thereto, all items (1982-84=100). In the event
that the Consumer Price Index is converted to a different standard reference
base or otherwise revised in the terms or number or kind of items contained
therein or otherwise, the determination of the increased Base Rent shall be
made with the use of such conversion factor, formula or table for converting
the Consumer Price Index as may be published by the Bureau of Labor Statistics
or, if said bureau shall not publish the same, then with the use of such
conversion factor, formula or table as may be published by Prentice Hall, Inc.
or any other nationally recognized publisher of similar statistical
information, or if a conversion factor, formula or table is unavailable,
Landlord shall use any other method to adjust the Consumer Price Index, or any
successor thereto, to the figure that would have been arrived at had the manner
of computing the Consumer Price Index in effect on the Commencement Date not
been altered. If the Consumer Price Index ceases to be published on a monthly
basis, then the shortest period for which the Consumer Price Index is published
which includes the relevant months shall be used. If the Consumer Price Index
ceases to be published, and there is no successor thereto, such other index as
Landlord and Tenant shall agree upon in writing shall be substituted for the
Consumer Price Index. If Landlord and Tenant cannot agree on an index within
sixty (60) days after the Consumer Price Index ceases to be published then the
increases contemplated herein shall be established by arbitration.
ARTICLE 4
---------
IMPOSITIONS AND UTILITIES
-------------------------
SECTION 4.01.
(a) Tenant covenants and agrees to bear, pay and discharge, as
additional rent hereunder, any and all of the following items (collectively,
"Impositions"):
(i) real estate taxes and assessments; (ii) personal property
taxes, if any; (iii) occupancy and rent taxes; (iv) water, water
meter and sewer rents, rates, and charges; (v) license and
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permit fees; (vi) any fines, penalties, and other similar or like
governmental charges applicable to the foregoing, together with
any interest or costs with respect to the foregoing incurred by
reason of Tenant's failure to comply with the terms hereof; and
(vii) any other governmental levies, fees, rents, assessments, or
taxes and charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, of any kind and nature
whatsoever;
which at any time during the Term are (A) assessed, levied, confirmed or
imposed upon the Premises or any part thereof, and/or any personal property,
equipment or other facility used in the operation thereof; or (B) imposed upon
Tenant by the terms of this Lease. Each such Imposition, or installment
thereof, during the Term to be paid shall be paid directly to the taxing
authority not later than the date on which any fine, penalty, interest, or cost
may be added thereto or imposed by law for the nonpayment thereof; provided,
however, that if by law any Imposition, at the option of the taxpayer, may be
paid in installments (whether or not interest shall accrue on the unpaid
balance of such Imposition), Tenant may exercise the option to pay the same in
such installments, in which event Tenant shall pay only such installment
payments as shall become due prior to the date herein definitely fixed for the
expiration of the Term, unless this Lease is terminated by reason of Tenant's
default in which event all such installment payments, including those which
otherwise would be payable by Tenant subsequent to the termination of this
Lease shall be paid by Tenant to Landlord prior to such date, and such
obligation shall survive the termination of the Term.
(b) Nothing herein contained shall require Tenant to pay any
municipal, state or federal income or franchise taxes imposed upon Landlord,
whether based upon the income or capital of Landlord, or any municipal, state,
or federal succession, transfer or gift taxes of Landlord; provided,
nevertheless, that if at any time during the Term the present method of
taxation or assessment shall be changed so that in substitution for, or in lieu
of an addition to, the whole or any part of the taxes, assessments or other
charges now levied, assessed or imposed on real estate or the improvements
thereon, there shall be levied assessed or imposed wholly or partially a
franchise tax, capital levy or other tax on real estate as such, or on the use
and occupancy thereof, or if any such tax or charge, or any part thereof,
howsoever called, shall be measured by or based on the Premises, then all such
taxes, assessments, levies or charges or the part thereof so measured or based
shall be deemed to be included within the definition of the term "Impositions"
for the purpose of this Lease.
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SECTION 4.02. Any Imposition which Tenant is required to bear, pay or
discharge under this Lease, relating to a fiscal period of a taxing authority,
a part of which period is included within the Term and a part of which is
included in a period of time after the expiration of the term shall (whether or
not such Imposition shall be assessed, levied, confirmed, imposed upon or in
respect of or become a lien upon the Premises, or shall become payable, during
the Term) be apportioned between Landlord and Tenant as of the expiration of
the Term, so that Tenant shall pay that portion of such Imposition which is
attributable to that part of such fiscal period included in the Term and
Landlord shall pay or cause to be discharged the remainder thereof; provided,
however, that if a termination of this Lease results from any default by
Tenant, Tenant shall not be entitled to any such apportionment.
SECTION 4.03. Tenant, after prior notice to Landlord in each instance,
shall have the right, at its sole cost and expense and free of any expense to
Landlord, to contest the amount or validity, in whole or in part, of any
Imposition which Tenant is required to bear, pay or discharge under this Lease
by appropriate proceedings, instituted promptly and in good faith and conducted
diligently; provided, however, that:
(a) neither the Premises nor any part thereof, would, by reason of
such postponement or nonpayment, in the reasonable judgment of Landlord, be in
danger of being forfeited or lost; and
(b) Tenant continues to prosecute such proceeding diligently to final
adjudication. Upon the termination of such proceedings, it shall be the
obligation of Tenant to pay the amount of such Imposition or the part thereof
as finally determined in such proceedings, the payment of which may have been
deferred during the prosecution of such proceedings, together with interest,
penalties or other liabilities in connection therewith.
SECTION 4.04. Any certificate, advice or xxxx issued by the
appropriate official designated by law to make or issue the same or to receive
payment of any Imposition, of non-payment of such Imposition, shall be prima
facie evidence that such Imposition is due and unpaid at the time or date
stated therein. Landlord, upon request of Tenant, shall furnish Tenant with a
copy of any such certificate, advice or xxxx.
SECTION 4.05. Tenant covenants and agrees to pay or cause to be paid
directly to the respective utility company(ies), as additional rent hereunder,
as and when same shall become due and payable, all charges for utilities,
including, without limitation, air conditioning, heat, gas, steam, hot water,
electricity, light and power furnished to the Premises, Tenant, or any other
occupant of the Premises.
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ARTICLE 5
---------
INSURANCE
---------
SECTION 5.01.
(a) Throughout the Term, Tenant, at its sole cost and expense, shall
provide and maintain in force or cause to be provided and maintained in force
in respect of the Premises, all of the following:
(i) Insurance against loss or damage or injury or destruction to
or of any building(s) now or hereafter erected on the Premises
resulting from fire or from any hazard included in the so-called
standard extended coverage endorsement, in an amount not less
than the full replacement value of the building(s) and other
improvements at the Premises, which policies shall provide that
the loss, if any, be payable to Landlord, except as otherwise
provided herein;
(ii) General liability insurance against liability for bodily
injury and property damage in amounts not less than $1,000,000
per occurrence, $3,000,000 annual aggregate, and such policies
shall name Landlord as an additional insured;
(iii) If and when the Premises contain a boiler, boiler insurance
in an amount not less than $500,000 and such policy or policies
shall insure both Landlord and Tenant, as their interests may
appear, except as otherwise provided herein; and
(iv) Rental insurance utilizing "all risk" coverage to cover
liability for continuing rental payments hereunder in an amount
necessary to provide full coverage for not less than one year of
Base Rent and Impositions hereunder, and naming Landlord as an
additional insured.
(b) Prior to the commencement of any Material Improvement (as
hereinafter defined), and until completion thereof, Tenant shall provide and
maintain in force or cause to be provided and maintained in force, in addition
to the insurance coverages described in subsection (a) of this Section 5.01:
6
(i) Owner's and Contractor's Protective Liability insurance
naming Tenant as an insured and Landlord, and the general
contractor, if any, as additional insureds, for a combined single
limit of not less than $1,000,000 for bodily injury, personal
injury and property damage; and
(ii) Builder's Risk Insurance (standard "all risk" or equivalent
coverage) written on a completed value (non-reporting) basis,
naming Tenant as an insured, and Landlord and the general
contractor, if any, and all subcontractors employed by Tenant or
the general contractor, if any, as additional insureds, as their
respective interests may appear.
(c) Landlord may require that, in the case of property insurance set
forth in Sections 5.01(a) and (b), the holder(s) ("Fee Mortgagee") of any
mortgage(s) now or hereafter covering the Premises be named as mortgagee under
a mortgagee endorsement, as its interest may appear, under such policies.
(d) Upon any failure of Tenant to procure and deliver to Landlord any
of the policies of insurance or, in lieu thereof, certificates evidencing same,
required hereunder, at least ten (10) days before the expiration of the prior
insurance policies, if any, or to pay the premiums therefor, Landlord may
procure such insurance and pay the premiums therefor, and any sums paid by
Landlord shall be and become and are hereby declared to be additional rent
under this Lease and Tenant shall pay Landlord the annual premiums therefor
within five (5) days after delivery of Landlord's statement setting forth the
amount due.
(e) The term "Material Improvement" shall mean the making of an
Improvement (as defined in Section 10.01) the estimated cost of which, as
determined by a reputable contractor, or as set forth in a construction
agreement with a reputable contractor, will exceed $250,000.
SECTION 5.02.
(a) All insurance required by any provision of this Lease shall be
issued by responsible insurance companies licensed to do business in the State
of Florida. All policies referred to in this Lease shall be procured, or caused
to be procured, for periods of not less than one (1) year. Certificates of
insurance evidencing the insurance required to be maintained pursuant to this
Lease
7
shall be delivered to Landlord on or before the Commencement Date, and
certificates of insurance evidencing new or renewal policies replacing any
policies expiring during the Term shall be delivered to Landlord at least ten
(10) days before the date of expiration of any policy.
(b) Tenant and Landlord shall cooperate in connection with the
collection of any insurance proceeds that may be due in the event of loss and
Tenant and Landlord shall execute and deliver such proofs of loss and other
instruments which may be required for the purpose of obtaining the recovery of
any such insurance proceeds.
(c) All adjustments of claims with insurers under the property and
casualty insurance policies which are required to be carried hereunder by
Tenant shall be made by Tenant.
(d) Tenant shall not violate or permit to be violated any of the
conditions or provisions of any such policies procured by it and Tenant shall
timely perform and satisfy or cause to be performed and satisfied the written
requirements of the companies writing such policies so that at all times
companies of good standing shall be willing to write and/or continue such
insurance.
(e) Every policy of insurance required to be obtained by Tenant
hereunder shall provide, to the extent obtainable, that no cancellation shall
be effective until at least ten (10) days after written notice thereof to
Landlord and any Fee Mortgagee(s).
(f) Each property and casualty insurance policy and every policy
insuring an economic loss resulting from any risks covered by any such property
and casualty insurance (whether or not required to be carried hereunder), shall
contain a clause or endorsement, if obtainable (whether or not additional
premium shall be charged therefor), whereby the insurance company waives all
rights of subrogation against Landlord and Tenant, or consents to the release
of liability among all such parties. The parties hereby release each other from
any and all liability for loss or damage covered by such insurance under a
policy containing such a clause or endorsement to the extent of any proceeds
paid thereunder.
(g) Any insurance required by this Article 5 may be effected by
policies of blanket insurance which may cover other property not included, as
well as property included, in the Premises, provided that the amount of the
total insurance allocated to the Premises shall be specified either in any such
policy or in a written statement from the insurer or its agent, and, provided
further, that in all other respects any such policy shall substantially comply
with the other provisions of this Article.
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ARTICLE 6
---------
DAMAGE OR DESTRUCTION AND
USE OF CASUALTY INSURANCE PROCEEDS
----------------------------------
SECTION 6.01.
(a) If all or any part of the Premises shall be damaged or destroyed
in whole or in part by fire or other casualty of any kind or nature, ordinary
or extraordinary, foreseen or unforeseen, Tenant shall give Landlord immediate
notice thereof, and Tenant shall promptly repair, restore, replace and rebuild
(collectively "Restore"), or cause to be restored, the damaged or destroyed
Premises at least to the extent of the value, quality and condition existing
immediately prior to such occurrence, or with such changes or alterations
thereto as may be made at Tenant's election in conformity with and subject to
the terms and conditions of Article 10 or as may be required by any
governmental authorities.
(b) If all or substantially all of the Premises are damaged or
destroyed or rendered wholly unusable by fire or other casualty, then, in any
such event, Landlord may elect to terminate this Lease by notice ("Landlord's
Notice") to Tenant given within sixty (60) days after the occurrence of such
fire or casualty specifying a date for the termination of the Term, which date
shall not be more than sixty (60) days after the giving of Landlord's Notice,
and upon the date specified in Landlord's Notice, this Lease and the Term shall
terminate and expire and the rental payable by Tenant hereunder shall be
apportioned and paid to the date of such termination. If Landlord elects to
terminate this Lease and the Term pursuant hereto, (i) the insurance proceeds
under the insurance policies required by any provision of this Lease insuring
against damage to or destruction of the Premises by fire or other casualty
shall be paid to Landlord, subject to the rights of the holder(s) of the Fee
Mortgage(s), and Tenant hereby waives, releases and relinquishes any and all
rights or claims to such proceeds, and (ii) Tenant shall have no obligation to
Restore.
SECTION 6.02.
(a) Provided no Event of Default shall exist hereunder, and subject to
the rights of any Fee Mortgagee(s), Landlord shall pay over to Tenant in a
single installment, promptly after receipt by Landlord, any insurance proceeds
received by Landlord in connection with damage and destruction to the Premises
from insurance maintained or caused to be maintained by Tenant (other than
rental insurance proceeds), but in no event to any extent or in any sum
exceeding the amount actually received or collected by Landlord in connection
with such damage or destruction of the Premises; provided, however, that before
paying such proceeds over to Tenant, Landlord shall first be entitled to
reimburse itself therefrom to
9
the extent, if any, of the reasonable expenses (including reasonable attorneys'
fees and disbursements) paid or incurred by Landlord in the collection of such
proceeds. The insurance proceeds paid over to Tenant shall be held and applied
to Restoration to the extent required therefor, any excess to be retained by
Tenant for its own account.
(b) If the insurance proceeds shall be insufficient for the purpose of
paying for any Restoration, Tenant shall nevertheless be required to make the
Restoration and pay any additional sums required to complete the same in the
manner prescribed by this Article 6.
SECTION 6.03. Tenant shall perform such Restoration or cause the same
to be performed in accordance with all Governmental and Insurance Requirements
(as hereinafter defined) applicable thereto.
SECTION 6.04. Except as provided in subsection (b) of Section 6.01,
this Lease shall not terminate, be forfeited or otherwise affected in any
manner, and, except to the extent of the proceeds of rent insurance payable to
Landlord, there shall be no reduction or abatement of the rental payable
hereunder, by reason of damage to or destruction of the Premises or any part
thereof or otherwise. It is the intention of Landlord and Tenant that the
foregoing is an "express agreement to the contrary" as provided in the
applicable laws, if any, of the State of Florida and shall govern and control
in lieu thereof.
ARTICLE 7
---------
CONDEMNATION
------------
SECTION 7.01.
(a) If at any time during the Term, the whole or substantially all of
the Premises shall be taken for any public or quasi-public purpose by any
lawful power or authority by the exercise of the right of condemnation or
eminent domain or by agreement between Landlord and those authorized to
exercise such right, this Lease and the Term shall terminate on the date of
taking (as hereinafter defined) and the rental payable by Tenant hereunder
shall be apportioned and paid to the date of taking.
(b) If the whole or substantially all of the Premises shall be taken
or condemned as provided in this Article, the aggregate of all awards and/or
damages (collectively, the "award") in respect of such taking (other than any
separate awards made to Tenant for loss of trade fixtures and/or relocation
expenses) shall be paid out and distributed to Landlord.
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(c) In case of any taking and whether or not this Lease shall
terminate by reason thereof, each of the parties agrees to execute any and all
documents that may be required in order to effect and facilitate the collection
of the award for the taking.
SECTION 7.02. For purposes of this Article 7, the following terms
shall have the following meanings:
(a) "substantially all of the Premises" shall be deemed to mean such
portion of the Premises as, when so taken, would, in the judgment of Tenant
reasonably exercised, leave remaining a portion of the Premises which, due
either to the area so taken or the location of the part so taken in relation to
the part remaining, would not, under economic conditions or under zoning or
other applicable laws or building regulations then existing or prevailing, and
after performance of all covenants, agreements, terms and provisions herein to
be performed by Tenant, accommodate a new or reconstructed building of a
character, type and size which could be used for the uses hereunder at the date
of such taking.
(b) "date of taking" shall be deemed to be the date on which the whole
or substantially all of the Premises, or a part thereof, as the case may be,
shall have vested in any lawful condemning authority, or the date on which
actual possession thereof is acquired, whichever shall be earlier.
SECTION 7.03.
(a) If less than substantially all of the Premises shall be taken,
this Lease and the Term shall continue (except that this Lease shall terminate
in respect of the portion of the Premises taken and the Base Rent shall be
reduced proportionately). Tenant shall proceed diligently to Restore any
remaining part of the building on the Premises not so taken so that the same
shall be a complete, self-contained architectural unit and, to the extent
practicable, of a size and condition substantially similar to the size and
condition existing immediately prior to such taking, in good condition and
repair.
(b) In the event of any taking of less than substantially all of the
Premises that results in Restoration of the Premises being required of Tenant
hereunder, then the award in respect of such taking shall be paid out and
distributed promptly after receipt by Landlord as follows:
(i) there shall first be paid to Tenant in a single installment
an amount equal to the estimated cost of such Restoration as may
be required hereunder, to be held and applied by Tenant for such
purpose; and
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(ii) next, subject to the rights of the Fee Mortgagee(s) there
shall be paid to Landlord the remainder of the award, if any.
(c) Such Restoration shall be performed in accordance with and subject
to the provisions of Articles 6 and 11.
(d) Each of the parties agrees to execute any and all documents that
may be required in order to effect and facilitate collection of the award.
SECTION 7.04. In case of any governmental action, not resulting in the
taking or condemnation of any portion of the Premises but creating a right to
compensation therefor, such as the change of grade or widening of any street
upon which the Premises abut, this Lease shall continue in full force and
effect without reduction or abatement of rental and the entire award therefor
shall belong to Landlord. Tenant hereby waives any and all claims, and releases
and relinquishes all of its interest in and to any award, damages or other
compensation of any kind resulting from or predicated upon a change of grade or
street widening (except any separate award made to Tenant for loss of trade
fixtures and/or relocation expenses).
SECTION 7.05. It is the intention of Landlord and Tenant that the
provisions of this Article 7 shall constitute an "express agreement to the
contrary" as provided in the applicable laws, if any, of the State of Florida
and shall govern and control in lieu thereof.
ARTICLE 8
---------
ASSIGNMENT AND SUBLETTING
-------------------------
SECTION 8.01. Tenant, with the consent of Landlord which shall not be
unreasonably withheld or delayed, may at any time and from time to time, sublet
the Premises or any part thereof. If the Premises are sublet, Tenant shall
deliver to Landlord a duplicate original of said agreement of subletting.
Tenant, with the consent of Landlord which shall not be unreasonably withheld
or delayed, upon complying with the provisions of this Section, may, at any
time assign this Lease or Tenant's interest in the Premises. Such assignment of
lease by Tenant shall be ineffective unless Tenant delivers to Landlord, within
five (5) days after the execution and delivery of such assignment, a duplicate
original of said assignment in recordable form and an instrument executed by
the assignee providing that the assignee assumes and agrees to perform each and
every provision of this Lease on the part of Tenant to be performed with the
same force and effect as if the assignee in said
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assignment was named as the original Tenant hereunder. Each and every
subsequent assignment of this Lease by Tenant shall comply with the provisions
of this Section. Notwithstanding the foregoing, Tenant, without the consent of
Landlord but otherwise upon complying with the provisions of this Section, may,
at any time and from time to time, sublet the Premises or any part thereof or
assign this Lease or Tenant's interest in the Premises to an Affiliate. An
"Affiliate" shall mean, for the purposes hereof, any person or entity, which,
directly or indirectly, controls, or is controlled by or is under common
control with, Tenant or any principal of Tenant (or any permitted successor of
Tenant or any principal of such successor). The words "control," "controlled
by," or "under common control with" shall mean, for purposes hereof, the
possession of the power to direct or cause the direction of the management and
policy of such entity, whether through the ownership of voting interests or
securities or contract. An affiliate shall also mean any person who is a
principal of Tenant.
ARTICLE 9
---------
REPAIRS AND MAINTENANCE
-----------------------
Throughout the Term, Tenant, at its sole cost and expense, covenants
and agrees to take good care of the Premises, and fixtures and other equipment
therein or serving the same and the appurtenances thereto, and all grounds,
facilities, curbs and other paved walkways and areas, and Tenant agrees to put,
keep and maintain all of the foregoing in a safe, sound and lawful order and
condition, and make all repairs thereto and therein, interior and exterior,
ordinary and extraordinary, foreseen and unforeseen, as shall be necessary to
keep and maintain the same in such safe and sound order and condition and in
compliance with all Governmental and Insurance Requirements. Tenant shall not
commit or suffer, and shall use reasonable precaution to prevent waste, damage
or injury to the Premises or any part thereof.
ARTICLE 10
----------
CHANGES, ALTERATIONS AND ADDITIONS
----------------------------------
SECTION 10.01. Tenant, with the consent of Landlord which shall not be
unreasonably withheld or delayed, may at any time or times during the Term, at
its own cost and expense, make any alterations, rebuildings, replacements,
changes, additions and improvements in, to or at the Premises and to the
buildings from time to time thereon (singly or collectively, the
"Improvement"), provided that any Improvement shall be performed in compliance
with the requirements set forth below:
13
(a) Any Improvement shall be made and completed promptly (unavoidable
delays excepted), in a good and workmanlike manner, in substantial compliance
with all applicable permits and authorizations and all Governmental and
Insurance Requirements. Upon completion of any such Improvement, Tenant shall
furnish or cause to be furnished to Landlord, promptly following the issuance
thereof, copies of any approvals of any applicable governmental authority
and/or Board of Fire Underwriters or Insurance Services Office, if normally
issued, evidencing that the same has been performed and completed substantially
in accordance with all Governmental Requirements and Insurance Requirements.
(b) The cost of any Improvement shall be paid so that the Premises
shall at all times be free of liens for labor and materials supplied or claimed
to have been supplied to the Premises, and if any such lien shall at any time
be filed, Tenant shall cause the same to be vacated or discharged in accordance
with the provisions of Article 15.
SECTION 10.02. Notwithstanding the foregoing, Tenant, without the
consent of Landlord but otherwise in compliance with Section 10.01, may at any
time or times during the Term make (i) Improvements the cost of which is not in
excess of $50,000 or (ii) Improvements in connection with any maintenance and
repair pursuant to Article 9 or any Restoration.
SECTION 10.03. Title to all additions, alterations, improvements and
replacements made by Tenant to the Premises, including without limitation, the
Improvements, shall forthwith vest in Landlord, without any obligation by
Landlord to pay any compensation therefor to Tenant or those claiming by,
through or under Tenant.
ARTICLE 11
----------
GOVERNMENTAL REQUIREMENTS
AND INSURANCE REQUIREMENTS
--------------------------
SECTION 11.01. Tenant, at Tenant's sole cost and expense, shall comply
with (i) any and all present and future laws, rules, orders, ordinances
(including zoning ordinances), regulations and requirements applicable to the
Premises, or any part thereof, now or hereafter enacted or promulgated by any
Federal, state or municipal governmental authority having jurisdiction over the
Premises (collectively, "Governmental Requirements"), and (ii) all requirements
of insurance authorities or companies and the Board of Fire Underwriters or
Insurance Services Office affecting the Premises or any parts thereof
(collectively, "Insurance Requirements").
14
SECTION 11.02. Notwithstanding anything to the contrary contained in
this Lease, Tenant shall have the right to contest the validity or
applicability of any Governmental Requirements or Insurance Requirements
affecting the Premises by appropriate legal or administrative proceedings and
Tenant shall be entitled to postpone compliance with the obligation being
contested so long as (i) no Event of Default shall have occurred and is
continuing hereunder; (ii) Tenant shall give Landlord prior written notice of
the commencement of such contest; (iii) noncompliance shall not subject
Landlord to any criminal penalty or to prosecution for a crime; and (iv) the
Premises shall not be in danger of being sold, forfeited or lost and the
Certificate of Occupancy shall not be in danger of being suspended by reason of
such contest.
ARTICLE 12
----------
DISCHARGE OF LIENS; BONDS
-------------------------
SECTION 12.01. Tenant shall not create, suffer or permit to be created
or to remain, any mechanic's, laborer's, materialman's lien upon the Premises.
SECTION 12.02. If any mechanic's, laborer's or materialman's lien at
any time shall be filed or permitted to exist against the Premises or any part
thereof, by reason of any work, labor or services performed or materials
furnished, or claimed to have been performed or furnished to or on behalf of
Tenant or those claiming under Tenant, Tenant, within twenty (20) days after
receipt of notice of filing thereof, shall cause the same to be vacated or
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to cause such lien to be
vacated or discharged within the period aforementioned, Landlord, in addition
to any other right or remedy of Landlord hereunder, may, upon ten (10) days'
prior notice to Tenant, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings, and in any such event, Landlord
shall be entitled, if it shall so elect, to compel the prosecution of an action
for the foreclosure of such lien by the lienor and to pay the amount of the
judgment in favor of the lienor with interest, costs and allowances. Any amount
so paid by Landlord, and all reasonable costs and expenses, including, but not
limited to, reasonable attorneys' fees and disbursements, incurred by Landlord
in connection therewith, shall constitute additional rent payable by Tenant
under this Lease and shall be paid by Tenant to Landlord on demand.
SECTION 12.03. Nothing contained in this Lease shall be deemed or
construed in any way as constituting the consent or request of Landlord,
express or implied, by inference or other-
15
wise, to any contractor, subcontractor, laborer or materialman for the
performance of any labor or services or the furnishing of any materials for any
specific improvement, alteration to or repair of the Premises or any part
thereof, nor as giving Tenant any right, power or authority to contract for or
permit the rendering of any labor or services or the furnishing of materials
that would give rise to the filing of any lien against the estate or interest
of Landlord in the Premises. Notice is hereby given, and Tenant shall cause all
construction agreements to which it is a party to provide, that Landlord shall
not be liable for any work or other services performed or to be performed at
the Premises for Tenant or for any materials furnished or to be furnished at
the Premises to Tenant, that the contractor performing any work or services
and/or furnishing any materials to the Premises for or on behalf of Tenant
shall not look to Landlord for the payment therefor, and that no mechanic's or
other lien for such work, services or materials shall attach to or affect the
estate or interest of Landlord in and to the Premises.
ARTICLE 13
----------
REPRESENTATIONS
---------------
SECTION 13.01. Landlord represents that it owns the Premises and that
the execution and delivery of this Lease have been duly authorized by all
necessary and proper action on the part of Landlord.
SECTION 13.02. Tenant represents that the execution and delivery of
this Lease have been duly authorized by all necessary and proper action on the
part of Tenant.
ARTICLE 14
----------
INDEMNIFICATION OF LANDLORD
---------------------------
SECTION 14.01. Tenant, subject to the provisions of Section 7.02(f),
agrees to indemnify and save Landlord harmless from and against any and all
claims, obligations, liabilities, suits, actions, proceedings, judgments,
damages, costs, charges and expenses, including, without limitation, reasonable
attorneys' fees and disbursements, imposed upon or incurred by Landlord by
reason of any of the following occurring during the Term, unless resulting from
any act, omission or negligence of Landlord, or Landlord's agents or employees:
(a) any use, non-use, possession, occupation, repair, alteration,
condition, operation, maintenance or management of the
16
Premises or any part thereof, or the streets and sidewalks abutting
the same by Tenant, or its agents or employees;
(b) any act, omission or negligence on the part of Tenant or its
agents;
(c) any accident, injury (including death) or damage to any person or
property occurring in, on or about the Premises or any part thereof or the
streets or sidewalks abutting the same; or
(d) any lien or claim which may be asserted against the Premises or
any part thereof, arising from any failure by Tenant to perform its obligations
under this Lease.
SECTION 14.02. The obligations of Tenant under this Article 14 shall
not be limited or affected in any way by the limits of insurance required to be
carried or caused to be carried by Tenant hereunder or by the absence in any
case of covering insurance or by the failure or refusal of any insurance
carrier to perform any obligation on its part under insurance policies
affecting the Premises, or any parts thereof.
SECTION 14.03. If any claim, action or proceeding is made or brought
against Landlord by reason of any event with respect to which Tenant has
indemnified Landlord hereunder, then, Landlord shall promptly notify Tenant and
Tenant, at its sole cost and expense, shall resist or defend such claim, action
or proceeding, in Landlord's name if necessary, by the attorneys for Tenant's
insurance carrier (if such claim, action or proceeding is covered by insurance)
or otherwise by such attorneys as Tenant shall select and Landlord shall
approve, which approval shall not be unreasonably withheld or delayed. Nothing
herein contained shall prohibit Landlord, at its own expense, from
participation in such claim, action or proceeding with counsel of its own
choice.
SECTION 14.04. The provisions of this Article 14 shall survive the
termination or expiration of the Term in respect of any occurrence prior to the
termination or expiration of the Term.
ARTICLE 15
----------
RIGHT OF ACCESS
---------------
Upon reasonable notice to Tenant, Tenant shall permit Landlord and its
agents and representatives to enter the Premises at all reasonable times (or at
any time and without notice in the case of an emergency) for the purpose of (a)
inspecting the same, and (b) making any necessary repairs thereto and
performing any other work therein pursuant to Article 16.
17
ARTICLE 16
----------
SELF-HELP
---------
SECTION 16.01. If at any time Tenant shall fail to pay, in accordance
with the provisions hereof, any Imposition for which it is obligated hereunder,
or to take out, pay for, maintain or deliver any of the insurance policies
required of it herein or certificates evidencing same, or to perform any other
act on its part to be made or performed under this Lease, then Landlord,
without waiving or releasing Tenant from any obligation contained in this Lease
and in addition to any and all other remedies Landlord may have hereunder, may
(but shall be under no obligation to), upon the giving of notice to Tenant of
such failure and the continuance of such failure by Tenant for fifteen (15)
days after the giving of such notice (except that shorter notice, to the extent
feasible, or no notice, need be given in the case of an emergency, or in cases
when any insurance policy described in Article 7 would lapse in less than ten
(10) days) or if such failure cannot be cured within said fifteen (15) days,
the failure of Tenant to commence to cure within said fifteen (15) days or to
diligently and continuously thereafter prosecute such cure:
(a) pay or cause to be paid any Imposition required to be paid by
Tenant pursuant to the provisions hereof; or
(b) take out, pay for and maintain any of the insurance policies
provided for herein; or
(c) pay any other sums, costs, expenses, charges, payments or deposits
payable by Tenant hereunder, or perform any other act on Tenant's part to be
made or performed as in this Lease set forth, and Landlord may enter upon the
Premises for such purpose and take all such action thereon as may be necessary
therefor.
SECTION 16.02. All sums paid by Landlord and all reasonable costs and
expenses incurred by Landlord in connection with the performance of any act
permitted by Section 16.01 shall be paid by Tenant to Landlord as additional
rent on demand. Any payment or performance by Landlord pursuant to the
foregoing provisions of this Article 16 shall not be nor be deemed to be a
waiver or release of the breach or default of Tenant with respect thereto or of
the right of Landlord to terminate this Lease, institute summary proceedings
and/or take such other action as may be permissible hereunder or otherwise if
an Event of Default by Tenant shall have occurred.
18
ARTICLE 17
----------
PERMITTED USE; NO UNLAWFUL OCCUPANCY
------------------------------------
SECTION 16.01. During the Term, Tenant may use and occupy the Premises
for light manufacturing, warehouse and distribution purposes or any other
lawful purpose.
SECTION 16.02. Tenant shall not use or occupy, nor permit or suffer
the Premises or any part thereof, to be used or occupied for any unlawful
purpose.
ARTICLE 18
----------
EVENTS OF DEFAULT,
CONDITIONAL LIMITATIONS, REMEDIES, ETC.
---------------------------------------
SECTION 18.01. The occurrence at any time during the Term of any one
or more of the events set forth in subsections (a), (b) or (c) of this Section
18.01 shall constitute an "Event of Default" hereunder:
(a) if Tenant shall fail to pay in full any installment of Base Rent,
any item of additional rent, or any other payment required to be paid by Tenant
under this Lease, when the same shall become due and payable hereunder, and
such default shall continue for a period of ten (10) days after notice thereof
from Landlord to Tenant; or
(b) (i) if Tenant shall abandon the Premises in its entirety and such
default shall continue for a period of thirty (30) days after
notice; or
(ii) if Tenant shall fail to keep, observe or perform any of the
other terms, covenants, conditions or agreements of this Lease on
Tenant's part to be kept, observed or performed, and such default
shall continue for a period of thirty (30) days after notice
thereof by Landlord to Tenant specifying such default (unless
such default requires work to be performed, acts to be done or
conditions to be removed which cannot by their nature reasonably
be performed, done or removed, as the case may be, within such
thirty (30) day period, then if Tenant shall not have commenced
curing the same within such thirty (30) day period or shall
thereafter fail diligently and continuously to prosecute the same
to completion); or
(c) (i) if Tenant is generally not paying its debts as such debts
become due, within the meaning of such
19
phrase under Title 11 of the United States Code, or shall admit
in writing that it is unable to pay its debts as such debts
become due; or
(ii) if Tenant shall make an assignment for the benefit of
creditors; or
(iii) if Tenant shall file a voluntary petition under Title 11 of
the United States Code, as the same may be amended, or if such a
petition is filed against Tenant and an order is entered as a
result of such petition, or if Tenant shall file any petition or
answer seeking, consenting to or acquiescing in any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or
future federal bankruptcy code or any other present or future
applicable federal or state or other statute or law, or shall
seek or consent to or acquiesce in the appointment of any
custodian, trustee, receiver, sequestrator, liquidator or other
similar official of Tenant or of all or any substantial part of
its property or of the Premises or any interest of Tenant
therein, or if Tenant shall take any action in furtherance of any
action described in subdivisions (i), (ii) or (iii) of this
Section 18.01(c); or
(iv) if within ninety (90) days after the commencement of any
proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future federal bankruptcy
code or any other present or future applicable federal or state
statute or law, such proceeding shall not have been dismissed, or
if within ninety (90) days after the appointment, without the
consent or acquiescence of Tenant, of any custodian, trustee,
receiver, assignee, sequestrator, liquidator or any other similar
official of Tenant or of all or any substantial part of its
properties or of the Premises or any interest of Tenant therein,
such appointment shall not have been vacated or stayed on appeal
or otherwise, or if within sixty (60) days after the expiration
of any such stay, such appointment shall not have been vacated.
SECTION 18.02.
(a) Upon the occurrence of any of the Events of Default set forth in
Section 18.01(c), Landlord may at any time thereafter serve upon Tenant a ten
(10)-day notice of termination of this
20
Lease and upon the expiration of such ten (10)-day period, this Lease and the
Term shall cease, terminate and expire as fully and completely as if the
expiration of such ten (10)-day period were the date herein definitely fixed
for the end and expiration of the Lease and the Term, and Tenant immediately
shall quit and surrender the Premises; or if such termination shall be
proscribed by any law applicable to the proceeding or stayed by order of any
court having jurisdiction over the proceeding, then, following the expiration
of any stay, or if the trustee appointed in any such proceeding, Tenant or
Tenant as debtor-in-possession shall fail to assume this Lease in its entirety
and all of the covenants thereof within the period prescribed therefor by law
or as may be allowed by the court, and/or said trustee, Tenant or Tenant as
debtor-in-possession shall fail to provide adequate protection of Landlord's
right, title and interest in and to the Premises and adequate assurances 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 the proceeding, shall have the right, at its election, to
terminate this Lease on ten (10) days' notice to Tenant, Tenant as debtor-in-
possession or said trustee, and upon the expiration of said ten (10)-day period
this Lease shall cease and expire as fully and completely as if such date were
the date herein definitely fixed for the end and expiration of this Lease and
the Term, and thereupon neither Tenant nor any subtenant or other person
claiming through or under Tenant or by virtue of any statute or order of any
court shall be entitled to the possession of the Premises, or any part thereof,
and Landlord, in addition to the other rights and remedies given pursuant to
this Article, or by virtue of any other provision in this Lease contained, or
by virtue of any statute or rule of law, may retain or receive as partial
liquidated damages any rental, or other moneys received by it from Tenant or
others on behalf of Tenant.
(b) If this Lease shall terminate and expire pursuant to the
provisions of Section 18.02(a) Landlord shall be entitled to prove and recover
in any such bankruptcy, insolvency, receivership, reorganization or dissolution
proceeding all arrears in rental and, in addition thereto as liquidated damages
an amount equal to the maximum allowed by statute or rule of law in effect at
the time when and governing the proceedings in which such damages are to be
proved, whether or not such amount be greater or less than the amount referred
to in subsection (a) of this Section 18.02.
SECTION 18.03.
(a) Upon the occurrence of any of the Events of Default set forth in
Section 18.01(b), Landlord may at any time thereafter and during the
continuance of any such Event of Default serve upon Tenant a ten (10)-day
notice of termination of this Lease and upon the expiration of such ten
(10)-day period, this Lease and the Term
21
shall cease, end and expire as fully and completely as if the expiration of
such ten (10)-day period were the date herein definitely fixed for the end and
expiration of this Lease and the Term, and thereupon Tenant and any subtenant
or other person claiming through or under Tenant shall quit and surrender the
Premises to Landlord, but Tenant shall remain liable as hereinafter provided.
(b) If the notice provided for in Section 18.03(a) shall have been
given, and the Term shall have expired as aforesaid, or if any of the Events of
Default set forth in Section 18.01(a) shall occur, then and in any of such
events Landlord may, without further notice, re-enter and repossess the
Premises, using such force for that purpose as may be lawful and necessary
without being liable to indictment, prosecution or damages therefor, and may
dispossess Tenant and any subtenant or other person claiming through or under
Tenant by summary proceedings or otherwise and remove their effects and hold
the Premises as of Landlord's former estate as if this Lease had not been made,
and Tenant hereby waives the service of notice of intention to reenter or to
institute legal proceedings to that end.
SECTION 18.04. If this Lease and the Term shall have terminated and
expired as provided in Section 18.03(a), or if Landlord shall have re-entered
the Premises and/or shall have dispossessed Tenant by summary proceedings or
otherwise as provided in Section 18.03(b):
(a) Tenant shall pay to Landlord all rental payable under this Lease
to the date upon which this Lease and the Term shall have terminated, expired
and come to an end or to the date of re-entry upon the Premises by Landlord, as
the case may be;
(b) Landlord may repair, renovate, remodel and/or alter the Premises
or any part thereof in such manner as Landlord may reasonably deem necessary or
advisable to relet the Premises without thereby relieving Tenant of any
liability under this Lease or otherwise affecting any such liability, and/or
Landlord may let or relet the Premises or any parts thereof for the whole or
any part of the remainder of the Term or for a longer period, in Landlord's
name or as agent of Tenant, at such rental and upon such terms and conditions
as Landlord shall deem reasonable, to any tenant it may deem suitable and for
any use or purpose it may deem appropriate, and out of any rent and other sums
collected or received as a result of such reletting Landlord shall: first, pay
to itself all reasonable costs and expenses of terminating this Lease,
re-entering, retaking, repossessing and repairing the Premises, the reasonable
costs and expenses of such renovations, remodeling and/or alterations of the
Premises or any part thereof as reasonably required to prepare the Premises for
reletting, and the reasonable cost and expense of removing all persons and
22
property therefrom, including in such costs reasonable attorneys' fees and
disbursements; second, pay to itself the reasonable costs and expenses
sustained in securing any new tenants and other occupants, including in such
costs, brokerage commissions, reasonable attorneys' fees and disbursements and
other expenses of preparing the Premises or any part thereof for reletting and,
if Landlord shall maintain and operate the Premises, the reasonable cost and
expense of operating and maintaining the Premises, and third, pay to itself any
balance remaining on account of amounts due and owing from Tenant to Landlord
hereunder. Any rents or other sums received by Landlord on a reletting in
excess of the rental reserved in this Lease shall belong solely to Landlord.
Nothing in this Article shall in any way affect Landlord's duty, hereby
confirmed, to mitigate damages by using reasonable efforts to re-let the
Premises at the fair market value.
(c) Tenant shall be liable for and shall pay to Landlord, as damages,
any deficiency (the "Deficiency") between the Base Rent reserved in this Lease
for the period which otherwise would have constituted the unexpired portion of
the Term and the net amount, if any, of rents collected under any reletting
effected pursuant to Section 18.04(b) for any part of such period (after first
deducting from the rents collected under any such reletting all of the payments
to Landlord described in Section 18.04(b)); any such Deficiency shall be paid
by Tenant in installments on the days specified in this Lease for the payment
of installments of Base Rent, and Landlord shall be entitled to recover from
Tenant such Deficiency installment(s) as the same shall arise, and no suits or
actions to collect the amount or amounts of any Deficiency for any period shall
prejudice Landlord's right to collect the Deficiency for any subsequent period
by a similar suit or action.
SECTION 18.05. No termination of this Lease pursuant to Section
21.03(a), and no re-entry or taking of possession by Landlord and/or reletting
of the Premises or any part thereof pursuant to Sections 18.03(b) and 18.04(b),
shall relieve Tenant of its liabilities and obligations under this Article 18,
all of which shall survive such expiration, termination, re-entry, repossession
or reletting.
SECTION 18.06. Suit or suits for the recovery of damages, or for a sum
equal to any installment or installments of rental payable hereunder or any
Deficiency or other sums payable by Tenant to Landlord pursuant to this Lease,
may be brought by Landlord from time to time at Landlord's election, and
nothing herein contained shall be deemed to require Landlord to await the date
whereon this Lease and the Term would have expired by limitation had there been
no Event of Default by Tenant, re-entry or termination.
SECTION 18.07. Tenant waives any and all right of redemption provided
by any law or statute now in force or hereafter enacted or
23
otherwise, or re-entry or repossession or to restore the operation of this
Lease in case Tenant shall be dispossessed by a judgment or by warrant of any
court or judge or in case of reentry or repossession by Landlord or in case of
any expiration or termination of this Lease. The terms "enter," "re enter,"
"entry" or "re-entry," as used in this Lease are not restricted to their
technical legal meaning.
SECTION 18.08. No failure by Landlord to insist upon the strict
performance of any agreement, term, covenant or condition of this Lease or to
exercise any right or remedy consequent upon a breach thereof, and no
acceptance of full or partial rental during the continuance of any such breach,
shall constitute a waiver of any such breach or of such agreement, term,
covenant or condition. No agreement, term, covenant or condition of this Lease
to be performed or complied with by Tenant, and no breach thereof, shall be or
be deemed to be waived, altered or modified except by a written instrument
executed by Landlord. No waiver of any breach shall affect or alter this Lease,
but each and every agreement, term, covenant and condition of this Lease shall
continue in full force and effect with respect to any other then existing or
subsequent breach thereof.
SECTION 18.09. Each right and remedy of Landlord provided for in this
Lease, shall be cumulative and shall be in addition to every other right or
remedy provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the
exercise by Landlord of any one or more of the rights or remedies provided for
in this Lease, or now or hereafter existing at law or in equity or by statute
or otherwise shall not preclude the simultaneous or later exercise by Landlord
of any or all other such rights or remedies.
SECTION 18.10.
(a) Tenant shall pay to Landlord all reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees and disbursements,
incurred by Landlord in any action or proceeding to which Landlord may be made
a party by reason of any act or omission of Tenant, provided that such act or
omission does not result from any act or omission of Landlord.
(b) Tenant shall also pay to Landlord all reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, incurred by Landlord in enforcing any of the covenants and
provisions of this Lease or incurred in any action or proceeding brought by
Landlord against Tenant on account of the provisions hereof, provided Landlord
shall prevail in such action or proceeding, and all such costs, expenses and
reasonable attorneys' fees and disbursements may be included in and form a
24
part of any judgment entered in any action or proceeding brought by Landlord
against Tenant on or under this Lease.
ARTICLE 19
----------
NOTICES
-------
SECTION 19.01. Whenever it is provided herein or prescribed by law
that notice, demand, request, consent, approval or other communication shall or
may be given to or served upon either of the parties hereto such notice,
demand, request, consent, approval or other communication shall be in writing
and, unless otherwise prescribed by law or governmental regulation, shall be
effective for any purpose only if delivered personally against receipt therefor
or sent by registered or certified mail, postage prepaid, return receipt
requested, to the parties at the respective addresses set forth below, or to
such other addresses as either party may from time to time designate by like
notice given to the other.
(a) If to Tenant:
THE XXXXX GROUP, INC.
00-00 Xxxxx Xxxxxx Xxxxxx
Xx. Xxxxxx, Xxxxxxx 00000
Attn: President
(b) If the Landlord:
C/O FOUR M CORPORATION
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
SECTION 19.02. Every notice, demand, request, consent, approval or
other communication hereunder shall be deemed to have been given or served on
the date personally delivered or three (3) business days after the date that
the same shall have been deposited in the United States mails postage prepaid,
in the manner aforesaid, except that a notice of change of address shall be
deemed to have been given only when received by the addressee.
25
ARTICLE 20
----------
SUBORDINATION
-------------
SECTION 20.01. This Lease, the leasehold estate of Tenant created
hereby and all rights of Tenant hereunder shall be subject and subordinate to
any and all Fee Mortgage(s) which may now or hereafter cover all or any part of
the Premises and to all renewals, modifications, consolidations, replacements
and extensions thereof. Tenant agrees that the Fee Mortgagee(s), shall have no
duty, liability or obligation to perform any of the obligations of Landlord
under this Lease, but in the event of Landlord's default with respect to any
such obligation, Tenant will give any Fee Mortgagee(s) whose name and address
have been furnished Tenant in writing for such purpose notice of Landlord's
default and allow such Fee Mortgagee(s) thirty (30) days following receipt of
such notice for the cure of said default before invoking any remedies Tenant
may have by reason thereof. If any Fee Mortgagee(s) shall elect to have this
Lease superior to the lien of its Fee Mortgage and shall give written notice
thereof to Landlord and Tenant, this Lease shall be deemed prior to such Fee
Mortgage, notwithstanding the relative dates of the documentation or
recordation thereof.
SECTION 20.02. Subject to the non-disturbance provisions of paragraph
20.03, Tenant agrees to attorn to any Fee Mortgagee(s) or any other party who
acquires ownership of the Premises by reason of a foreclosure of a Fee
Mortgage, and that in the event of such foreclosure, such new owner shall: (i)
be liable for any act or omission of any prior lessor or with respect to events
occurring prior to acquisition of ownership, (ii) be subject to any offsets or
defenses which Tenant may have against any prior lessor, or (iii) be bound by
prepayment of more than one (1) month's rent.
SECTION 20.03. With respect to any Fee Mortgage entered into by
Landlord after the execution of this Lease, Tenant's subordination of this
Lease shall be subject to receiving assurance (a "non-disturbance agreement")
from the Fee Mortgagee(s) that Tenant's possession of the Premises and this
Lease, will not be disturbed so long as Tenant is not in default thereof and
attorns to the record owner of the Premises.
SECTION 20.04. The agreements contained in this paragraph 20 shall be
effective without the execution of any further documents; provided, however,
that, upon written request from Landlord or a Fee Mortgagee(s) in connection
with a sale, financing or refinancing of the Premises, Tenant and Landlord
shall execute such further writings as may be reasonably required to separately
document any such subordination or non-subordination, attornment and/or
nondisturbance agreement as is provided for herein.
26
ARTICLE 21
SALE OPTION
Tenant hereby grants Landlord the option (the "Sale Option") to sell
and convey the Premises to Tenant for a purchase price (the "Purchase Price")
of One Million Five Hundred Thousand ($1,500,000) Dollars; provided, however,
that the Purchase Price shall be increased in proportion to the increase, if
any, by which the Base Rent shall have increased from the Commencement Date to
the Closing Date (as hereinafter defined). The Sale Option shall be exercisable
only by Landlord's giving Tenant notice thereof from and after January 1, 1998
and on or before July 31, 2006, time being of the essence. The closing of title
(the "Closing") shall take place at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx, at
10:00 a.m. on the date which shall be forty-five (45) days following the date
of Landlord's notice or if said date shall not be a business day, the first
business day thereafter (the date on which the Closing takes place being called
the "Closing Date"), or at such other time and place as shall be agreed to by
Landlord and Tenant. Title to the Premises shall be conveyed by Landlord to
Tenant by special warranty deed free and clear of all liens and encumbrances
other than the Permitted Exceptions. The Purchase Price shall be payable upon
the Closing as follows:
(a) Three Hundred Fifty Thousand ($350,000) Dollars shall be payable
by unendorsed certified or bank check drawn to the order of Landlord or
Landlord's designee(s), or by wire transfer to account(s) designated by
Landlord;
(b) if on the Closing Date, the Premises shall be encumbered by a Fee
Mortgage(s), at Landlord's election, an amount equal to the outstanding
principal balance secured thereby, shall be payable by Tenant's accepting title
to the Premises subject thereto and assuming the payment and performance of all
obligations to be performed thereunder, and under the promissory note(s)
secured thereby (collectively, the "Assumed Fee Mortgage"), from and after the
Closing Date; and
(c) the balance of the Purchase Price shall be payable by Tenant's
Promissory Note in such amount. Tenant's Promissory Note shall (i) be for a
term of seven (7) years following the Closing Date; (ii) be repayable in
eighty-four (84) equal monthly installments in an amount not to exceed the
monthly installment of Base Rent in effect on the day preceding the Closing
Date, commencing on the first day of the month following the Closing Date and
on the first day of each succeeding month, applied first to the payment of
interest calculated on the outstanding principal balance thereof at the rate
per annum equal to two (2) percentage points above the prime rate in effect as
of the Closing Date, as published in the New York Times, and then in reduction
of principal.
27
Notwithstanding the foregoing, if such payments shall not be sufficient to
fully satisfy such Promissory Note, the eighty-fourth (84th) and final
installment shall be in an amount equal to the outstanding principal balance of
such Promissory Note, together with interest accrued thereon; (iii) be secured
by a Mortgage or Deed of Trust covering the Premises, subject only to the
Permitted Exceptions and the Assumed Fee Mortgage, if applicable; (iv) if
applicable, Landlord shall have the right to incorporate the outstanding
principal balance of Tenant's Promissory Note in the Assumed Fee Mortgage; and
(v) subject to the foregoing, be in form and content reasonably satisfactory to
Landlord and Tenant.
ARTICLE 22
----------
CERTIFICATES BY TENANT AND LANDLORD
-----------------------------------
Tenant and Landlord agree, at any time and from time to time upon not
less than ten (10) days' prior notice by the other, to execute, acknowledge and
deliver to the other (or any other parties specified by the other) a statement
certifying (i) that this Lease is unmodified and in full force and effect (or
if there have been any modifications, or supplements that the same, as modified
and/or supplemented, is in full force and effect and stating the modifications
and/or supplements), (ii) the date(s) to which the Base Rent has been paid,
(iii) whether to the best knowledge of the person executing such certificate
there is then any existing default in the performance of the other party's
obligations under this Lease and, if so, specifying each such default, and (iv)
whether to the best knowledge of the person executing such certificate there
then exist any set-offs or defenses to the enforcement of this Lease by
Landlord or any claims by Tenant against Landlord, and it being intended that
any such statement may be relied upon by the other party and/or such third
parties as the other party shall have designated.
ARTICLE 23
----------
CONSENTS AND APPROVALS
----------------------
All consents and approvals which may be given under this Lease shall,
as a condition of their effectiveness, be in writing. The granting of any
consent or approval by Landlord to the performance of any act by Tenant
requiring the consent or approval of Landlord, under any of the terms or
provisions of this Lease shall relate only to the specified act or acts thereby
consented to or approved and, unless otherwise specified, shall not be deemed a
waiver of the necessity for such consent or approval for the same or any
similar act in the future, and/or the failure on the part of Landlord to object
to any such action taken by Tenant without the
28
consent or approval of Landlord, shall not be deemed a waiver of its right to
require such consent or approval for any further similar act. Whenever the
consent of Landlord is required hereunder, Landlord agrees not to unreasonably
withhold or delay such consent.
ARTICLE 24
----------
SURRENDER AT END OF TERM
------------------------
SECTION 24.01. On the last day of the Term or upon any sooner
termination of this Lease, or upon a re-entry by Landlord upon the Premises
pursuant to Article 18 hereof, Tenant agrees that it shall well and truly
surrender and deliver up to Landlord the Premises, together with all additions,
alterations and improvements thereto, in good order, and in the condition and
state of repair in which Tenant is obligated to maintain the same pursuant to
Article 9, reasonable wear and tear excepted, free and clear of all subleases,
occupancies, liens and encumbrances.
SECTION 24.02. Nothing in this Lease shall be construed to give
Landlord title to or to prevent Tenant's removal of trade fixtures and moveable
furniture, furnishings and equipment installed in the Premises by Tenant.
ARTICLE 25
----------
QUIET ENJOYMENT
---------------
Landlord covenants that, if and so long as no Event of Default shall
have occurred and be continuing hereunder, Tenant shall and may (subject,
however, to the terms and conditions of this Lease), peaceably and quietly
have, hold and enjoy the Premises during the Term without molestation or
disturbance by or from Landlord or any person claiming by, through or under
Landlord.
ARTICLE 26
----------
INVALIDITY OF CERTAIN PROVISIONS
--------------------------------
If any term or provision of this Lease, or the application thereof to
any person or circumstances shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
29
ARTICLE 27
----------
RECORDING OF MEMORANDUM
-----------------------
Landlord and Tenant, upon the written request of the other, shall join
in the execution of a Memorandum of this Lease and of any amendments or
supplements to this Lease in proper form for recording, setting forth such
provisions, other than the rental terms, as shall be required by law or
requested by either party to give notice of the existence of this Lease, such
amendment or supplement and the provisions thereof. Either party may cause such
Memorandum to be recorded, and the party causing such Memorandum to be recorded
shall pay and discharge all costs and fees in connection therewith.
ARTICLE 28
----------
WAIVER OF TRIAL BY JURY
-----------------------
To the fullest extent permitted by law, Landlord and Tenant do hereby
waive and will waive all rights to trial by jury on any cause of action,
proceeding or counterclaim directly or indirectly arising out of or in any way
connected with this Lease, the Premises, Tenant's use and occupancy of the
Premises or any matters whatsoever arising out of or in any way connected with
this Lease. The provisions of this Lease relating to waiver of a jury trial
shall survive the expiration of the Term.
ARTICLE 29
----------
BROKER
------
Tenant and Landlord acknowledge, represent and warrant to each other
that it has not dealt with any broker in respect of this Lease or the Premises.
As a special inducement for the execution and delivery of this Lease by the
other, Landlord and Tenant hereby covenant and agree forever to defend,
indemnify and hold the other and its successors and assigns harmless from and
against any and all claims, demands or judgments (and for all expenses,
including, but not limited to, reasonable counsel fees and expenses incurred by
the other in connection therewith) for any commissions, fees or other
compensation of any kind by or in favor of any broker or other party, claiming
to have brought the availability of the Premises to the attention of the
indemnifying party and/or claiming to have dealt with the indemnifying party in
connection with this Lease.
30
ARTICLE 30
----------
MISCELLANEOUS
-------------
SECTION 30.01. The captions of this Lease are for convenience of
reference only and in no way define, limit or describe the scope or intent of
this Lease or in any way affect this Lease.
SECTION 30.02. The Table of Contents is for convenience of reference
only and is not to be deemed or construed in any way as part of this Lease or
as supplemental thereto or amendatory thereof. All references herein to
Articles, Sections, subsections or subdivisions, shall, unless the context
shall clearly evidence a contrary intention, refer to the Articles, Sections,
subsections and subdivisions of this Lease.
SECTION 30.03. Any reference herein to any one gender, masculine,
feminine or neuter, includes the other two, and the singular includes the
plural and vice versa, unless the context requires otherwise. The use herein of
the words "successors and assigns" or "successors or assigns" of Landlord or
Tenant shall be deemed to include the heirs, legal representatives and assigns
of any individual Landlord or Tenant.
SECTION 30.04. If more than one party is named as or becomes Landlord
or Tenant hereunder, Landlord or Tenant, as the case may be, may require the
signatures of all such other parties in connection with any notice to be given
or action to be taken by the other party hereunder, unless such other parties
designate otherwise in form satisfactory to the relying party. Each person or
entity named as Landlord or Tenant shall be jointly and severally liable for
all obligations of such party hereunder. Any notice by Landlord to any party
named as Tenant or by Tenant to any party named as Landlord shall be sufficient
and shall have the same force and effect as though given to all parties named
as Tenant or Landlord, as the case may be.
SECTION 30.05. The term "Landlord" on the date as of which this Lease
is delivered, shall mean Xxxxxx Xxxxxx, but thereafter "Landlord" shall mean
the holder of landlord's interest in this Lease at the time in question so that
if Xxxxxx Xxxxxx, or any successor to its interest hereunder ceases to have any
interest in the Premises or there is any transfer or transfers of Landlord's
interest in the Premises, the transferor shall be and hereby is entirely freed
and relieved of all agreements, covenants and obligations of Landlord hereunder
to be performed on or after the date of such transfer, and it shall be deemed
and construed without further agreement between the parties or their successors
in interest or between the parties and the person who acquires Landlord's
interest in this Lease that such person has assumed and agreed to carry out any
and all agreements, covenants and
31
obligations of Landlord hereunder accruing from and after the date of such
transfer.
SECTION 30.06. This Lease or any of its provisions may not be waived,
changed, modified or terminated orally, but only by a written instrument of
waiver, change, modification or termination executed by the party against whom
enforcement of any such waiver, change, modification or termination is sought.
SECTION 30.07. This Lease shall be governed by and construed in
accordance with the internal laws of the State of Florida without giving effect
to any principles of conflict of laws.
SECTION 30.08. The agreements, terms, covenants and conditions herein
contained shall be binding upon, and shall inure to the benefit of, Landlord
and Tenant and their respective successors and assigns.
SECTION 30.09. This Lease contains the entire agreement between the
parties and supersedes all prior written and oral agreements and understandings
with respect hereto between Landlord and Tenant.
SECTION 30.10. This Lease may be executed in multiple counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
32
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease of
the day and year first above written.
/s/ Xxxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx
THE XXXXX GROUP, INC.
By: /s/ X.X. Xxxx
---------------------------
X.X. Xxxx
Chief Executive Officer
33
STATE OF NEW YORK )
: ss.:
COUNTY OF WESTCHESTER )
On the 17 day of March, 1995, before me personally came Xxxxxx Xxxxxx
to me known to be the individual described in and who executed the foregoing
instrument, and acknowledged that he executed the same.
/s/ Xxxxxxx Arco
-------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF WESTCHESTER )
On the 17 day of March, 1995, before me personally came X.X. Xxxx, to
me known, who, being by me duly sworn, did depose and say that he resides at
No. 00 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx 00000, that he is the Chief
Executive Officer of The Xxxxx Group, Inc., the corporation described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the board of directors of said corporation,
and that he signed his name thereto by like order.
/s/ Xxxxxxx Arco
-------------------------
Notary Public
