EXHIBIT 10.2
FIRST AMENDMENT TO LEASE AGREEMENT
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This First Amendment to Office Lease (the "Amendment") is made as of
the 30th day of April, 1997, by and between ARBORS ASSOCIATES, LTD., a Florida
limited partnership (the "Landlord") and ORIOLE HOMES CORP., a Florida
corporation (the "Tenant").
RECITALS
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I. Landlord and Tenant entered into that certain Office Lease dated May
10, 1991 (the "Lease") with respect to office space at 0000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx.
II. Landlord and Tenant are desirous of amending and modifying the
Lease on the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and conditions contained in this Amendment and other good and valuable
considerations, the receipt and sufficiency of which are acknowledged, the
parties to this Amendment, intending to be legally bound, agree to amend the
Lease as follows:
I . Incorporation of Recitals. The parties warrant and represent that
the foregoing recitals are accurate and correct and incorporate them in this
Amendment. Capitalized terms used but not otherwise defined in this Amendment
shall have the same meanings given to such terms in the Lease, unless otherwise
specifically indicated or unless the context clearly indicates to the contrary.
2. The Term is extended for an additional sixty (60) calendar months,
commencing January 1, 1998, and expiring December 31, 2002. "Extension Term", as
used in this Amendment, shall mean the sixty (60) month Lease Term commencing
January 1, 1998.
3. Deletion Space Commencement Date. The "Deletion Space Commencement
Date" is August 31, 1997.
4. Deletion of Space. (a) Effective upon the Deletion Space
Commencement Date, the space delineated on EXHIBIT "A" attached to this
Amendment and made a part of this Amendment (the "Deletion Space") shall be
deleted from the Premises. The Rentable Area of the Deletion Space is 2,832
rentable square feet and the Rentable Area of the Premises after deletion of the
Deletion Space is 19,655 rentable square feet (the "Remaining Space"). These
square footage amounts constitute a material part of the economic basis of this
Amendment and the Lease and the consideration to Landlord in entering into this
Amendment and shall not be adjusted without the mutual agreement of Landlord and
Tenant. From and after the Deletion Space Commencement Date,
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whenever the term Premises is used in the Lease, or this Amendment, such term
shall refer to the remaining 19,655 rentable square feet of space.
(b) On or prior to the Deletion Space Commencement Date, Tenant shall
vacate the Deletion Space and surrender possession of the Deletion Space to
Landlord in accordance with the provisions of the Lease, as if the Deletion
Space Commencement Date was the original expiration date of the Lease Term as to
the Deletion Space, and Tenant shall execute any documents reasonably required
by Landlord in connection with the deletion. Tenant shall deliver exclusive
possession of the Deletion Space to Landlord: (i) broom clean and vacant of any
and all of the Tenant Property; (ii) with the construction of the demising walls
substantially completed; and (iii), with all building systems (such as HVAC,
electrical, and plumbing) and utilities fully installed so that they service
both the Deletion Space and the Remaining Space.
(c) Tenant shall separate the Deletion Space from the Remaining Space,
by, including, but not limited to, installing demising walls and separating all
building systems and utilities servicing the Premises so that both the Remaining
Space and the Deletion Space are separately usable as independent premises. All
other provisions of the Lease shall be deemed to be appropriately modified to
reflect the deletion of the Deletion Space from the Premises. Otherwise, the
Remaining Space shall continue to be leased pursuant to all the applicable
terms, covenants, and conditions of the Lease.
5. Tenant Improvements. (a) Tenant is currently in possession of the
Premises, is fully familiar with the physical condition of the Premises, and
shall accept the Premises for the Extension Term in its existing "as is," "where
is," and "with all faults" condition, subject to Landlord's maintenance and
repair obligations as set forth in the Lease.
(b) Tenant shall, at its sole cost and expense, perform all work
necessary or desirable in connection with the deletion of the Deletion Space
from the Premises and Tenants continuing occupancy of the Remaining Space (the
"Tenant Improvements"). Within twenty-one (21) days after the date of this
Amendment, Tenant shall furnish to Landlord, for Landlord's written approval, a
permit set (final construction drawings) of plans and specifications for the
Tenant Improvements (the "Plans"). The Plans shall include the following: fully
dimensioned architectural plan; electric/telephone outlet diagram; reflective
ceiling plan with light switches; mechanical plan; furniture plan; electric
power circuitry diagram; plumbing plans; all color and finish selections; all
special equipment and fixture specifications; and fire sprinkler design
drawings.
(c) The Plans will be prepared by a licensed architect and the
electrical and mechanical plans will be prepared by a licensed professional
engineer. The architect and engineer will be subject to Landlord's approval,
which shall not be unreasonably withheld. The Plans shall comply with all
applicable laws, ordinances, directives, rules, regulations, and other
requirements imposed by any and all governmental authorities having or asserting
jurisdiction over the Premises. Landlord shall review the Plans and either
approve or disapprove them, in Landlord's sole discretion, within five (5)
business days of receipt. Should Landlord disapprove them, Tenant shall make any
necessary modifications and resubmit the Plans to Landlord in final form within
ten (10) days following receipt
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of Landlord's disapproval of them. The approval by Landlord of the Plans or the
supervision by Landlord of any work performed an behalf of Tenant shall not: (i)
imply Landlord's approval of the Plans as to quality of design or fitness of any
material or device used; (ii) imply that the Plans and specifications are in
compliance with any codes or other requirements of governmental authority (it
being agreed that such compliance is solely Tenants responsibility); or (iii)
impose any liability on Landlord to Tenant or any third party. The Tenant
Improvements shall be constructed by a general contractor selected and paid by
Tenant. Tenant shall cooperate as reasonably necessary so that its general
contractor will cause the Tenant Improvements to be completed promptly and with
due diligence. The Tenant Improvements shall be performed in accordance with the
Plans and shall be done in a good and workmanlike manner using new materials.
All such work shall be done in compliance with all other applicable provisions
of the Lease and with all applicable laws, ordinances, directives, rules,
regulations, and other requirements of any governmental authorities having or
asserting jurisdiction over the Premises. Prior to the commencement of any work
by Tenant, Tenant shall furnish to Landlord certificates evidencing the
existence of builder's risk, comprehensive general liability, and workers
compensation insurance complying with the requirements set forth in the
Insurance section of the Lease. Any damage to any part of the Building which
occurs as a result of the Tenant Improvements shall be promptly repaired by
Tenant.
d) Tenant shall also insure compliance with the following requirements
concerning construction:
i. Tenant and all construction personnel shall abide by
Landlord's reasonable job site rules and regulations and fully cooperate with
Landlord's construction representatives in coordinating all construction
activities in the Building, including, but not limited to, reasonable rules and
regulations concerning working hours, parking, and use of the construction
elevator.
ii. All transportation of construction materials shall be on
the padded construction elevator only.
iii. Tenant shall be responsible for cleaning up any refuse or
other materials left behind by construction personnel at the end of each work
day.
iv. Tenant shall deliver to Landlord all forms of approval
provided by the appropriate local governmental authorities to certify that the
Tenant Improvements have been completed and the Premises are ready for
occupancy, including, but not limited to, a final, unconditional certificate of
occupancy.
v. Upon completion of the Tenant Improvements, Tenant's
general contractor shall review the Premises with Landlord and Tenant.
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6. Fixed Annual Rent. The Fixed Annual Rent (stated monthly and
excluding sales tax) during the Extension Term shall be:
PERIOD RATE PER SQUARE FOOT MONTHLY RENT
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01/01/98 - 12/31/98 $ 9.50 $15,560.21
01/01/99 - 12/31/99 $ 9.98 $16,346.41
01/01/00 - 12/31/00 $10.48 $17,165.37
01/01/01 - 12/31/01 $11.00 $18,017.08
01/01/02 - 12/31/02 $11.55 $18,917.94
7. Tenant's Proportionate Share. Throughout die Extension Term,
Tenant's Proportionate Share of Operating Costs shall be Twenty-Nine and Twelve
One Hundredths percent (29.120%).
8. Operating Expenses. Tenant's cap on "controllable" Operating Costs
provided in Section 9.D. of the Lease is deleted from the Lease.
9. Option to Renew. Exhibit "G" shall be deleted in its entirety and
replaced with the following:
A. Tenant shall have the option to extend the Term for an
additional period of sixty (60) months, with respect to the Premises then being
demised under the Lease upon the same terms and conditions as provided in the
Lease (unless hereafter changed or modified by a mutual agreement in writing),
except that, for the extended term:
(1) upon exercise of this option to extend the Term,
the Lease, as extended, shall not contain any further option to extend as
provided in this paragraph;
(2) the Fixed Annual Rent shall be determined in
accordance with Subparagraphs C and D, but in no event shall it be less the
Fixed Annual Rent payable with respect to the twelve (12) month period
immediately preceding the expiration of the original term of the Lease; and
(3) Landlord shall have no obligation to perform any
alteration or preparatory or other work in and to the then demised Premises and
Tenant shall take or continue possession thereof in its "as is" condition.
B. The exercise of the option set forth in this paragraph
shall only be effective upon, and in strict compliance with, the following terms
and conditions:
(1) Written notice of such election (the "Extension
Notice") shall be given by Tenant to Landlord not later than nine (9) months
prior to the expiration date of the initial term
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of the Lease. Time shall be of the essence in connection with the exercise of
any election by Tenant under this paragraph.
(2) At the time of Tenant giving Landlord written
notice of its election to extend the Term and upon the expiration of the initial
term, the Lease shall be in full force and effect and Tenant shall not be in
default under any of the terms, covenants, and conditions of the Lease beyond
any applicable grace period.
(3) No portion of the Premises is sublet to anyone at
the expiration date of the initial Term of the Lease.
(4) The Lease has not been assigned by Tenant at the
expiration date of the initial Term of the Lease.
C. The Fixed Annual Rent, exclusive of any sales and use
taxes, shall be a sum equal to the fair and reasonable market rental value of
the Premises for such extended term, taking into account the rentals at which
leases are being concluded for comparable space in the Building Project and in
comparable buildings in the Delray Beach/Boca Raton, Florida area at such time
and for such a term and taking into account the terms and conditions of the
Lease (the "Fair Market Rental Value" or the "Value").
(1) Within thirty (30) days after receipt of the
Extension Notice, Landlord shall advise Tenant of the applicable Fixed Annual
Rent for the extended term. Tenant, within thirty (30) days after the date on
which Landlord advises Tenant of the applicable Fixed Annual Rent for the
extended term, shall either (i) give Landlord final binding written notice
("Binding Notice") of Tenant's exercise of its option, or (ii) if Tenant
disagrees with Landlord's determination of the Fair Market Rental Value, provide
Landlord with written notice of rejection (the "Rejection Notice"). If Tenant
fails to provide Landlord with either a Binding Notice or Rejection Notice
within such thirty (30) day period, Tenants election of the option to extend the
Lease shall, at Landlord's option, be null and void and of no further force and
effect. If Tenant provides Landlord with a Binding Notice, Landlord and Tenant
shall enter into an Amendment to the Lease extending the Term in accordance with
the terms and conditions of this paragraph.
(2) If Tenant provides Landlord with a Rejection
Notice, Landlord and Tenant shall work together in good faith to agree upon the
Fair Market Rental Value for the Premises during the extended term. Upon
agreement, Landlord and Tenant shall enter into an Amendment to the Lease
extending the Term in accordance with the terms and conditions of this
paragraph.
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(3) If Landlord and Tenant cannot agree on the Value
within thirty (30) days after receipt of the Rejection Notice, Tenant shall have
the option to withdraw its election to extend the Term by giving Landlord
written notice of such withdrawal within ten (10) days after the expiration of
such thirty (30) day period. If Tenant elects to withdraw its election to
extend, Tenants right to extend the Term shall be null and void and of no
further force and effect.
(4) If Landlord and Tenant cannot agree on the Value
within thirty (30) days after receipt of the Rejection Notice and, in addition,
Tenant does not elect to withdraw its election to extend the Term, Landlord and
Tenant, within twenty (20) days after the expiration of the thirty (30) day
period, shall each simultaneously submit to the other, in a sealed envelope, its
good faith estimate of the Value (collectively referred to as the "Estimates").
If the higher of such Estimates is not more than one hundred five (105%) percent
of the lower of such Estimates, then the Fair Market Rental Value shall be the
average cf the two Estimates. If the higher of such Estimates is more than one
hundred five (105%) percent of the lower of such Estimates, Landlord and Tenant,
within seven (7) days after the exchange of Estimates, shall each select an MAN
appraiser with experience in commercial real estate activities, including at
least ten (10) years experience in appraising office space in the local area in
which the Building Project is located. Upon selection, Landlord's ind Tenant's
appraisers shall work together in good faith to agree upon which of the two
Estimates most closely reflects the Fair Market Rental Value. The estimate that
is selected by such appraisers shall be binding upon both Landlord and Tenant.
If either Landlord or Tenant fails to appoint an appraiser within the seven (7)
day period referred to above, the appraiser appointed by the other party shall
be the sole appraiser for the purposes of this section. If the two (2)
appraisers cannot agree upon which of the two (2) Estimates most closely
reflects the Value within twenty (20) days after their appointment, then, within
ten (10) days after the expiration of the twenty (20) period, the two (2)
appraisers shall select a third appraiser meeting the criteria stated above.
Once the third appraiser has been selected, then, as soon thereafter as
practical but in any case within fourteen (14) days, the third appraiser shall
make his determination as to which of the Estimates most closely reflects the
Fair Market Rental Value. The determination by the third appraiser shall be
rendered in writing to both the Landlord and Tenant and shall be final and
binding upon them. If the third appraiser believes that expert advice would
materially assist him, he may retain one or more qualified persons to provide
such expert advice. The parties shall share equally in the cost of the third
appraiser and of any experts retained by the third appraiser. Any fees of any
counsel or experts engaged directly by Landlord or Tenant, including the
appraisers selected by Landlord and Tenant, however, shall be borne by the party
retaining such counsel or expert.
(5) Upon a determination of the Value pursuant to the
preceding procedure, Landlord and Tenant shall enter into an Amendment to the
Lease extending the Lease Term in accordance with the terms and conditions of
this paragraph.
(6) If at the date of commencement of the extended
term, the Fixed Annual Rent shall not have been determined, then, pending such
determination, Tenant shall pay to Landlord Fixed Annual Rent at a sum equal to
(i) the Fixed Annual Rent payable for the immediately preceding twelve (12)
month period plus (ii) thirty-three (33%) percent thereof (the "Temporary
Rate"). After a determination of Fixed Annual Rent is made (x) if such rate is
greater
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than the Temporary Rate, Tenant shall promptly pay to Landlord the difference
between the rent theretofore paid at the Temporary Rate and the greater rate, as
determined or (y) if such rate is less than the Temporary Rate, Landlord shall
promptly pay to Tenant the difference between the rent theretofore paid at the
Temporary Rate and the lesser rate, as determined.
D. The Fixed Annual Rent payable for the second year and all
subsequent years of the extension period shall be calculated by multiplying the
Fixed Annual Rent payable for the immediately preceding year by one hundred and
five (105%) percent, with each such adjustment in Fixed Annual Rent being
effective as of the anniversary date of the Commencement Date occurring in the
applicable year.
10. First Opportunity - Expansion of Premises. Section 54 of the Lease
is deleted.
11. Ratification. Except as modified by this Amendment, the Lease shall
remain otherwise unmodified and in full force and effect and the parties ratify
and confirm the terms of the Lease as modified by this Amendment. Landlord and
Tenant each certify that each has no offsets, defenses, or-claims with respect
to its obligations under the Lease. All future references to the Lease shall
mean the Lease as modified by this Amendment.
12. Tenant's Representations. Tenant represents and warrants as
follows:
(a) Tenant is duly organized, validly existing, and in good
standing under the laws of the state of Florida.
(b) Tenant has full power to execute, deliver, and perform its
obligations under this Amendment.
(c) The execution and delivery of this Amendment, and the
performance by Tenant of its obligations under this Amendment, have been duly
authorized by all necessary action of Tenant, and do not contravene or conflict
with any provisions of Tenant's Articles of Incorporation or By-laws or any
other agreement binding on Tenant.
(d) The individual executing this Amendment on behalf of
Tenant has authority to do so.
(e) The scroll seal set forth immediately below the signature
of the individual executing this Amendment on Tenants behalf has been adopted by
the corporation as its seal for the purpose of execution of this Amendment and
such seal has been affixed to this Amendment as the seal of the corporation and
not as the personal or private seal of the officer executing this Amendment on
behalf of the corporation.
12. Landlord's Representation. The scroll seal set forth immediately
below the signature of the individual signing this Amendment on Landlord's
behalf has been adopted by the corporation as its seal for the purpose of
execution of this Amendment and such seal has been affixed to this
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Amendment as the seal of the corporation and not as the personal or private seal
of the officer executing this Amendment on behalf of the corporation.
13. Binding on Landlord. Submission of this Amendment by Landlord is
not an offer to enter into this Amendment but rather a solicitation for such an
offer by Tenant. Landlord shall not be bound by this Amendment until Landlord
has executed it and delivered it to Tenant.
14. Broker. Landlord and Tenant represent and warrant that they have
neither consulted nor negotiated with any broker or finder with respect to this
Amendment. Landlord and Tenant agree to indemnify, defend, and save the other
harmless from and against any claims for fees or commissions from anyone with
whom they have dealt in connection with this Amendment including attorneys' fees
incurred in connection with the defense of any such claim.
15. Benefit and Binding Effect. This Amendment shall be binding upon
and inure to the benefit of the parties to this Amendment, their legal
representatives, successors, and permitted assigns.
16. Amendment. This Amendment may not be changed, modified, or
discharged in whole or in part except by an agreement in writing signed by both
parties to this Amendment.
17. Construction of Language. This Amendment has been negotiated at "at
arm's length" by and between Landlord and Tenant, each having the opportunity to
be represented by legal counsel of its choice and to negotiate the form and
substance of this Amendment. Therefore, this Amendment shall not be more
strictly construed against either party by reason of the fact that one Party may
have drafted any or all of the provisions of this Amendment.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this First
Amendment to Lease Agreement as of the date first above stated.
WITNESSES: LANDLORD:
/s/ Xxxxx X. Xxxxxxx ARBORS ASSOCIATES, LTD.,
a Florida limited partnership
XXXXX X. XXXXXXX
Print or type name By: BFC/ARBOR ASSOCIATES, LTD.,
Florida limited partnership, general partner
By: BFC/ARBOR ASSOCIATES, INC.,
a Florida corporation, general partner
/s/ Xxxxxxx Xxxx By: /s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx,
XXXXXXX XXXX Vice President
Print or type name
(CORPORATE SEAL)
TENANT:
/s/ Xxxxxxxxx Xxxxxxxxx ORIOLE HOMES CORP.,
a Florida corporation
XXXXXXXXX XXXXXXXXX
Print or type name
/s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxx
Print or type name
Its: CEO
(CORPORATE SEAL)
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