SECOND AMENDED AND RESTATED LEASE
Between
V.P.I. PROPERTIES ASSOCIATES
d/b/a V.P.I. PROPERTIES ASSOCIATES, LTD.
(Lessor)
and
AMERICAN TECHNICAL CERAMICS (FLORIDA), INC.
(Tenant)
Effective as of May 16, 2000
TABLE OF CONTENTS
SECTION Page
------- ----
1. THIS LEASE............................................................. 1
2. PREMISES LEASED........................................................ 1
3. TERM ................................................................. 2
4. RENT ................................................................. 2
5. NO RENEWAL OPTIONS..................................................... 4
6. TAXES AND ASSESSMENTS.................................................. 5
7. USE ................................................................. 6
8. REPAIR AND MAINTENANCE OF PREMISES..................................... 6
9. UTILITIES.............................................................. 7
10. INDEMNIFICATION....................................................... 7
11. INSURANCE............................................................. 7
12. CASUALTY.............................................................. 10
13. CONDEMNATION.......................................................... 11
14. SIGNS................................................................. 12
15. ALTERATIONS........................................................... 12
16. REMOVAL OF TRADE FIXTURES............................................. 13
17. INSPECTION OF PREMISES................................................ 13
18. LIENS0................................................................ 13
19. OPTION TO PURCHASE.................................................... 13
20. INVESTMENT CREDIT..................................................... 17
21. ASSIGNMENT AND SUBLETTING............................................. 17
22. CONDITIONAL LIMITATIONS - DEFAULT PROVISIONS.......................... 18
23. OBLIGATIONS UNDER AGREEMENT........................................... 21
24. ESTOPPEL CERTIFICATES................................................. 21
25. SURRENDER OF POSSESSION............................................... 22
26. SEPARABILITY.......................................................... 22
27. MEMORANDUM OF LEASE................................................... 22
28. NOTICE................................................................ 22
29. SUCCESSION............................................................ 23
30. RIGHT OF FIRST OFFER.................................................. 23
SECOND AMENDED AND RESTATED LEASE
THIS SECOND AMENDED AND RESTATED LEASE, entered into as of the 16 day
of May, 2000 between V.P. I. PROPERTIES ASSOCIATES, a New York limited
partnership, qualified to do business in the State of Florida under the name
V.P.I. Properties Associates, Ltd. and having its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ herein called "Lessor," and
AMERICAN TECHNICAL CERAMICS (FLORIDA), INC., a Florida corporation and having
its offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
herein called "Tenant."
RECITALS
A. Lessor and Tenant entered into an agreement of lease effective as
of October 1, 1980 and amended it by Amendment of Lease dated June
20, 1994 (collectively, the "Initial Lease");
▇. ▇▇▇▇▇▇ and Tenant amended the Initial Lease and restated it in
full in one unified document by Amended and Restated Lease, dated
as of July 1, 1996, and amended it by First Amendment to Amended
and Restated Lease, dated as of May 1, 1998, and amended it by
Second Amendment to Amended and Restated Lease, dated as of May 1,
1998 (as so amended, the "Existing Lease");
▇. ▇▇▇▇▇▇ and Tenant want to further amend the Existing Lease and
restate it in full in one unified document.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. THIS LEASE. This Second Amended and Restated Lease is intended to and hereby
does amend and restate the Existing Lease in such a fashion as to render this
document (the "Lease") the fully integrated instrument setting forth the
understandings of the parties in full without reference back to the Existing
Lease or the Initial Lease. The leasehold estate created by the Initial Lease
and thereafter the Existing Lease remains uninterrupted, but the agreements
between Lessor and Tenant with respect thereto are governed entirely by this
Lease.
2. PREMISES LEASED.
(a) Lessor hereby leases to Tenant and Tenant hereby rents from Lessor
all that piece, parcel or tract of land situate and lying and being in ▇▇▇▇▇
County, Florida, as more particularly described in EXHIBIT A attached hereto and
made a part hereof, together with the buildings and improvements constructed and
to be constructed thereon, including all improvements located thereon, and
together with all rights, easements and appurtenances to the same belonging or
usually held and
enjoyed therewith. The land and all such buildings, improvements, rights,
easements and appurtenances are hereinafter sometimes referred to as the "leased
premises."
(b) Lessor hereby agrees to make available to Tenant up to $1,800,000
to construct on the leased premises one or more buildings (the "New
Construction") pursuant to plans and specifications to be approved by Lessor.
Tenant shall effect such construction in accordance with all applicable laws and
the provisions of this Lease. Lessor shall be the owner of the New Construction
and all other improvements located on the leased premises.
3. TERM. This Lease shall be for a term commencing on October 1, 1980, and
expiring September 30, 2010 (the "Term").
4. RENT.
(a) (i) As payments on account of rent for the properties leased
hereunder, and having made all requested payments of rent, supplemental rent and
other charges owed to Lessor through May 31, 2000, Tenant hereby unconditionally
promises to pay to Lessor as rent the sum of $502,404.24 per annum ("Fixed
Rent"). All such payments shall be made in immediately available funds, at such
place as Lessor shall designate at any time in writing to Tenant, in equal
monthly installments in advance on the first day of each and every remaining
calendar month during the Term, with any necessary adjustments being paid by the
Tenant (or credited against future payments of Fixed Rent) as promptly as
practicable (but in no event more than 30 days) after the end of the applicable
lease year.
(ii) (A) Effective as of each date (each a "Substantial Completion
Date") on which Tenant occupies or could occupy any building to be constructed
in connection with the New Construction, Fixed Rent shall be increased to the
Fair Market Rent (as hereinafter defined).
(B) Within thirty (30) days after each Substantial Completion
Date, Tenant shall choose an appraiser (the "Appraiser") to determine the fair
market rent of the leased premises (the "Fair Market Rent"). The identity of the
Appraiser shall be subject to the approval of Lessor, such approval not to be
unreasonably withheld or delayed.
(C) The Appraiser shall determine the Fair Market Rent as soon as
reasonably practicable, taking into consideration all factors determined by the
Appraiser to be relevant. The Appraiser's determination of the Fair Market Rent
shall be binding upon the parties. Tenant shall pay all fees and expenses of the
Appraiser.
(D) Until such time as the Appraiser shall have determined the
Fair Market Rent, Tenant shall pay Fixed Rent in accordance with Lessor's good
faith estimate of Fair Market Rent. Upon the determination of Fair Market Rent
by the Appraiser, Lessor or Tenant, as the case may be, shall pay to the
other the amount of any overpayment or underpayment made based on Lessor's
estimate.
(E) The provisions of this Section 4(a)(ii) shall apply upon
substantial completion of each building to be constructed in connection with the
New Construction. Lessor and Tenant may delay engaging the Appraiser until
substantial completion of more than one building, in which event Lessor's good
faith estimate of Fair Market rent shall be adjusted upon substantial completion
of each additional building.
(iii) On the first anniversary of the first day of the calendar month
in which the Substantial Completion Date shall occur (the "First Escalation
Date"), Fixed Rent shall be increased by the percentage increase, if any, in the
CPI (hereinafter defined) for the last reported month available to the public on
the first day of the calendar month (the "CPI Change Month") preceding the
calendar month in which the First Escalation Date shall occur as compared to the
CPI for the same month in the previous calendar year (the "Base CPI").
Thereafter, on each anniversary of the First Escalation Date, Fixed Rent shall
be increased by the percentage increase, if any, in the last reported month
available to the public on the first day of the CPI Change Month of the next
preceding lease year as compared to the Base CPI. On or before the fifteenth
(15th) day of each CPI Change Month during the Term, Lessor shall provided
Tenant with written notice of the amount to be used in calculating Fixed Rent
for the next succeeding lease year and the calculation for determining such
amount. Notwithstanding the result of any calculation of Fixed Rent hereunder,
in no event shall Fixed Rent for any lease year be less than Fixed Rent for the
preceding lease year. By way of example only, if the last Substantial Completion
Date is November 15, 2000, then (A) the First Escalation Date shall be November
1, 2001, (B) the CPI Change Month shall be October, (C) the Base CPI shall be
the CPI for the last reported month available to the public on October 1, 2000,
and (D) Fixed Rent shall be increased each November 1 by the percentage increase
in the CPI from the Base CPI to the CPI for the last reported month available to
the public on the October 1 of the calendar year in which such November 1 date
occurs.
(iv) As used herein "CPI" means the Consumer Price Index for All Urban
Consumers published by the Bureau of Labor Statistics of the United States
Department of Labor, [Northeastern United States Area], All Items (1982-84=100),
or any successor index thereto, appropriately adjusted. In the event that the
CPI is converted to a different standard reference base or otherwise revised,
the determination of adjustments provided for herein shall be made with the use
of such conversion factor, formula or table for converting the CPI 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 ▇▇▇▇▇▇▇▇-▇▇▇▇, Inc., or any other nationally recognized
publisher of similar statistical information. If the CPI ceases to be published,
and there is no successor thereto, such other index as Lessor and Tenant shall
agree upon in writing shall be substituted for the CPI. If Lessor and Tenant are
unable to agree as to such substituted index, such matter shall be submitted to
the American Arbitration Association or any successor organization for
determination in accordance with the regulations and procedures thereof then
obtaining for commercial arbitration.
(v) Notwithstanding anything contained herein to the contrary, in no
event shall the monthly payments in respect of Fixed Rent under this Lease be
less than the monthly payments of principal and interest due and payable by the
Lessor under the Mortgage Documents (as hereinafter defined).
(b) Tenant shall pay any and all sales or rental taxes becoming due in respect
of the rents payable under this Lease.
(c) Notwithstanding anything to the contrary in this Lease, Tenant hereby
unconditionally promises to make payments on account of rent under SUBSECTION
4(A). Tenant agrees that its obligation to make payments of said payment on
account of rent is absolute and unconditional, and shall not be subject to any
defense, reduction, diminution or postponement or any right of setoff,
counterclaim, crossclaim, recoupment or abatement, or otherwise, for any reason
whatsoever, whether arising out of any breach of the obligations of the Lessor
or arising out of or in connection with this Lease or otherwise or out of any
indebtedness or liability at any time owing to Tenant by the Lessor or arising
from any other matter, event or condition of any kind. Tenant will not suspend
or discontinue any such payment on account of rent payments for any cause,
including without limitation failure to complete the construction and equipping
of the leased premises, any defect in the condition of the leased premises or
any part thereof, failure of consideration, failure of or a defect in title to
the leased premises or any part thereof, eviction or constructive eviction, any
breach or representation or warranty, destruction of or damage to the leased
premises, commercial frustration of purpose, any change in the tax or other
laws, ordinances, rules, regulations, orders or other actions of the United
States of America, the State of Florida or any subdivision, agency or
instrumentality of either, or any default in the performance of any agreement,
express or implied, or in the payment or performance of any duty, liability or
obligation arising out of or in connection with this Lease or otherwise. Nothing
contained in this SUBSECTION 4(C) shall be construed to release the Lessor from
any of its obligations contained in this Lease. If Lessor defaults in the
observance or performance of any of its obligations under this Lease, Tenant may
institute such action against Lessor as Tenant may deem necessary to compel
observance and performance, provided that no such action shall violate Tenant's
agreements under this SUBSECTION 4(C).
5. NO RENEWAL OPTIONS. There are no renewal options hereunder for the leased
premises.
6. TAXES AND ASSESSMENTS.
(a) Tenant shall at all times during the Term, as additional rent, pay before
delinquency all real estate taxes and any and all special assessments and all
other charges levied upon or against the leased premises or any interest
therein, which become payable during the term hereof, including any tax,
assessment or charge that now or hereafter may be levied, assessed or imposed
upon Lessor or the leased premises based upon or arising out of its leasing, use
or operation of the leased
premises. Tenant's obligation to pay taxes, special assessments and other
charges shall be contingent upon and subject to the following provisions and
conditions:
(1) Tenant may take the benefit of the provisions of any statute
or ordinance permitting any special assessment to be paid over a period of time,
and Tenant shall be obligated to pay only the installments of such special
assessments as shall become due and payable during the term hereof.
(2) Tenant shall pay only its pro rata share of taxes, special
assessments (or instruments thereof), other charges which become due and payable
during the years in which the term of this Lease commences and ceases, such pro
rata share to be calculated by multiplying the amount due and payable by the
ratio which the number of months of the term of this Lease occurring during the
then current tax year bears to the entire number of months in that tax year.
(b) Nothing herein contained shall be construed to require Tenant to
pay any franchise or income tax assessed against Lessor or to require Tenant to
pay any tax upon the sale, transfer or assignment of the title or estate of
Lessor in the leased premises.
(c) Tenant may, at its expense and in its own name, or in the name of
Lessor, or in both names, as may be necessary, in good faith, contest any such
taxes, assessments and other charges to the same extent as Lessor shall be
entitled to contest the same under the Mortgage. As used herein, the term
"Mortgage" means any mortgage on Lessor's interest in the leased premises,
including, without limitation, that certain Amended and Restated Mortgage and
Security Agreement dated as of the date hereof made by the Lessor in favor of
Bank of America, N.A., successor to ▇▇▇▇▇▇▇ Bank, N.A., in the aggregate
principal amount of $4,667,474.83, the term "Mortgagee" means the holder of any
such Mortgage, and the term "Mortgage Documents" means the Mortgage and any
other documents and instruments evidencing and/or securing the indebtedness
secured by the Mortgage, as the same may be amended from time to time.
Notwithstanding the other provisions of this SECTION 6, Lessor may
require that Tenant deposit with Lessor or with the Mortgagee as security an
amount sufficient in the sole judgment of Lessor to pay any such tax, assessment
or other charge, and all interest and penalties in connection therewith, and all
other amounts which are or might become a charge or lien on the leased premises
or any part thereof in any such proceedings. If at any time Lessor shall deem
the money so deposited to be insufficient security, Tenant shall, upon demand,
deposit with Lessor or the Mortgagee, as the case may be, such additional moneys
as in the judgment of Lessor shall be sufficient to pay all such items. Upon
conclusion of the proceedings or at such other times as Lessor shall direct, the
moneys so deposited shall be applied to the payment of such tax, assessment,
charge or lien, and to the interest and penalties in connection therewith, and
any charges accruing in such proceedings, and the balance, if any, shall be paid
to Tenant if Tenant is not in default under this Lease. In the event money
deposited hereunder shall be insufficient for such payments, Tenant shall
forthwith pay over to or at the direction of Lessor the balance required for
such payments.
(d) All refunds received as a result of the overpayment of, and all
funds received as a result of a rebate of any tax, special assessment or other
charge or deriving from any proceeding contesting the validity of such tax,
special assessment or other charge, to the extent attributable to items paid by
Tenant, shall belong to Tenant.
(e) Tenant shall furnish to Lessor, within 45 days after the date when
any tax, special assessment or other charge is payable, copies of the official
receipts or other proof satisfactory to Lessor evidencing payment thereof.
7. USE. The leased premises shall be used by Tenant, Tenant's parent
corporation, American Technical Ceramics Corp., a Delaware corporation ("ATC"),
and/or any wholly-owned subsidiary of either Tenant or ATC, as a facility for
the manufacture or processing of electric components and for research and
product development relating thereto. Tenant shall not use or occupy the leased
premises or permit the same to be used or occupied contrary to any statute,
rule, order, ordinance or regulation applicable thereto or in any manner which
would violate any certificate of occupancy affecting the same, or which would
cause structural injury to the improvements or cause the value or usefulness of
the leased premises or any part thereof to diminish or which would constitute a
public or private nuisance or waste.
8. REPAIR AND MAINTENANCE OF PREMISES. Tenant agrees that, beginning on the date
it takes possession of the leased premises and continuing throughout the term of
this Lease, at its sole cost and expense, it will keep and maintain the leased
premises, including without limitation any altered, rebuilt or additional
buildings, structures, equipment, machinery, fixtures, furnishings and other
personal property, improvements and appurtenances thereto, in good repair and
appearance, and will with reasonable promptness make all structural and
nonstructural, foreseen and unforeseen, and ordinary and extraordinary changes,
repairs, and replacements of every kind and nature which may be required to be
made upon or in connection with the leased premises or any part thereof in order
to keep and maintain the leased premises in such good repair and appearance. All
such changes, repairs and replacements shall be of first class quality
sufficient for the proper maintenance and operation of the leased premises.
Tenant shall not permit the accumulation of waste or refuse matter, nor permit
anything to be done on the leased premises which would invalidate or prevent the
procurement of any insurance policies which may at any time be required pursuant
to the provisions of SECTION 11. Lessor shall not be required to maintain,
repair or rebuild or to make any alterations, replacements or renewals of any
nature or description in or to the leased premises or any part thereof, whether
ordinary or extraordinary, structural or nonstructural, foreseen or unforeseen,
or to maintain the leased premises or any part thereof in any way, and Tenant
hereby expressly waives any right to make repairs at the expense of Lessor which
may be provided for in any statute or law in effect at the time of the execution
of this lease or any statute or law which may thereafter be enacted.
9. UTILITIES. Tenant shall pay for all gas, electricity, water, sewer, heat and
other utilities used in and about the leased premises.
10. INDEMNIFICATION. Tenant agrees to pay, and to protect, indemnify and save
harmless Lessor from and against any and all liabilities, obligations, losses,
damages, costs, penalties, expenses (including all attorney's fees and expenses
of Tenant and Lessor), causes of action, suits, claims, demands or judgments of
any nature whatsoever arising from (i) any accident or injury to, or the death
of, any person, or any damage to property on the leased premises or upon
adjoining sidewalks, streets or ways, or in any manner growing out of or
connected with the use, non-use, condition or occupancy of the leased premises
or any part thereof or of adjoining sidewalks, streets or ways, (ii) violation
of any agreements or conditions of this lease and of any contracts, agreements,
restrictions, statutes, laws, ordinances or regulations or other documents
(whether or not recorded) affecting the leased premises or any part thereof or
the ownership, occupancy or use thereof, or (iii) any tortious act or omission
on the part of Tenant or of any of its agents, contractors, sublessees,
licensees or invitees. In case any action, suit or proceeding is brought against
Lessor by reason of any occurrence herein described, Tenant will at its own
expense defend such action, suit or proceeding with counsel satisfactory to
Lessor.
11. INSURANCE.
(a) During such time as Lessor is required by the Mortgage Documents to carry
the insurance described therein, the Tenant shall perform the Lessor's
obligations thereunder. In addition to any parties named as co-insureds in the
Mortgage Documents, the Lessor shall also be designated as a co-insured.
(b) After the Mortgage has been terminated, Tenant will maintain at all times
from the date Tenant is deemed to have taken possession of the leased premises
insurance on the leased premises of the following character:
(i) insurance against loss or damage by fire, lighting, windstorm, hail,
explosion, aircraft, smoke, vandalism, malicious mischief, vehicle damage and
other risks from time to time included under "extended coverage" policies and
such other risks as are or shall customarily be insured against with respect to
property that is similar to the leased premises, in amounts sufficient to
prevent Tenant and Lessor from becoming a co-insurer of any loss under the
applicable policies, but in any event in amounts not less than the full
insurable value of the leased premises. The term "full insurable value," as used
herein, means actual replacement value;
(ii) general public liability insurance against claims for bodily injury, death
or property damage occurring on, in or about the leased premises and the
adjoining streets, sidewalks and passageways, such insurance to afford
protection to Tenant and Lessor of not less than a single limit of $1,000,000
with respect to bodily injury or death resulting from any one accident, and not
less than $1,000,000 with respect to property damage; all such insurance may be
maintained under general contractual liability policies, which policies shall
cover the obligations of Tenant under
(iii) SECTION 11 hereof;
(iv) workmen's compensation insurance covering all persons employed in
connection with any work done on or about the leased premises in connection with
which claims for death or bodily injury could be asserted against Tenant,
Lessor, any Mortgagee or the leased premises; and
(v) such other insurance on the leased premises as Lessor may from time to time
reasonably request to protect the leased premises in such amounts and against
such other insurable hazards which at the time are commonly obtained in the case
of property similar to the leased premises, including rent insurance, war risk
insurance (when and to the extent obtainable from the United States Government
or any agency thereof) and boiler and pressure vessel insurance.
Such insurance shall be written by companies of recognized financial
standing approved by Lessor authorized to do an insurance business in the state
in which the leased premises are located, and such insurance shall be in form
acceptable to Lessor and shall name as the insured parties thereunder Tenant and
the Lessor, as their interests may appear. The Lessor shall not be required to
prosecute any claim against any insurer or to contest any settlement proposed by
any insurer; provided, however, that Tenant may, at its sole cost and expense,
prosecute any such claim or contest any such settlement, and in such event
Tenant may bring any such prosecution or contest in the name of Lessor, Tenant
or both, and Lessor will join therein at Tenant's written request upon the
receipt by Lessor of an indemnity from Tenant against any and all costs,
liabilities and expenses in connection with such prosecution or contest. In any
case in which Tenant may be entitled to reimbursement of any expense or to
payment of any sum by Lessor, Tenant shall be entitled to participate in any
proceeding to determine the amount of any such sum, and no settlement with the
insurer shall be made without the consent of Tenant.
So long as there is a Mortgage or similar lien on the leased premises,
every such insurance policy referred to in CLAUSES (I) and (IV) of SUBSECTION
11(B) shall bear a noncontributory mortgagee endorsement in favor of the
Mortgagee, and loss under any such policy shall be made payable to the
Mortgagee, provided, however, that the net proceeds under policies carried
pursuant to SUBSECTIONS (I) AND (IV) above shall be applied in the manner
provided in SECTION 12 hereof, and the net proceeds under policies carried
pursuant to SUBSECTIONS (II) AND (III) above shall be applied toward the
extinguishment or satisfaction of the liability with respect to which such
proceeds have been paid. Every such policy shall contain, to the extent
obtainable, an agreement by the insurer that it will not cancel such policy
except after 10 days' prior written notice to Lessor and that any loss otherwise
payable thereunder shall be payable notwithstanding any act or negligence of
Lessor or Tenant which might, absent such agreement, result in a forfeiture of
all or a part of such insurance payment and notwithstanding (i) the occupation
or use of the leased premises for purposes more hazardous than permitted by the
terms of such policy; (ii) any foreclosure or other action or proceeding taken
pursuant to any provision of the mortgage or similar instrument upon the
happening of an event of default, as defined therein, or (iii) any change in
title or ownership of the leased premises.
Tenant shall deliver to Lessor promptly after the execution and
delivery of this Lease, the original or duplicate policies or certificates of
the insurers evidencing all the insurance which is then required to be
maintained by Tenant hereunder, and Tenant shall, within 30 days prior to the
expiration of any such insurance, deliver other original or duplicate policies
or other certificates of insurers evidencing the renewal of such insurance.
Should Tenant fail to effect, maintain or renew any insurance provided for in
this SECTION 11, or to pay the premium therefor, or to deliver to Lessor and any
Mortgagee any of such policies or certificates, then and in any such event
Lessor, at its option but without obligation so to do, may procure such
insurance, and any sums expended by Lessor them to procure any such insurance,
together with interest thereon at 15% per annum from date of payment to date of
reimbursement by Tenant, shall be additional rent hereunder and shall be repaid
by Tenant within 30 days after receipt of bills therefor.
Tenant shall not obtain or carry separate insurance concurrent in form
or contributing in the event of loss with that required in this SUBSECTION 11(B)
to be furnished by Tenant unless Lessor is included therein as a named insured,
with loss payable as in this Lease provided. Tenant shall immediately notify
Lessor whenever any such separate insurance is obtained and shall deliver the
policy or policies or certificates evidencing the same to Lessor.
12. CASUALTY.
(a) If the leased premises or any part thereof shall be damaged or destroyed by
fire or any other cause, Tenant shall immediately notify Lessor and the
Mortgagee of such destruction or damage and, subject to the further provisions
of this SECTION 12, Tenant shall repair the damage and restore the leased
premises to not less than the same quality and condition as existed immediately
before the casualty. Tenant expressly waives the provisions of any present or
future law relating to such damage or destruction and agrees that the provisions
of this Lease shall control the rights of Lessor and Tenant.
(b) Subject to the further provisions of this SECTION 12, there shall be no
abatement of rent pending repairs or rebuilding occasioned by any casualty,
except to the extent to which Lessor shall have received a net sum as proceeds
of any rent insurance with respect to such casualty.
(c) If and to the extent any Mortgagee makes the proceeds of any casualty
insurance policy available to Lessor, and provided no default hereunder shall
exist at the time, Lessor shall make such proceeds available to Tenant for any
restoration work required by this SECTION 12. If no Mortgage shall then be in
effect, Lessor shall make any such proceeds available to Tenant in accordance
with standard construction lending practice.
(d) If and to the extent any Mortgagee does not make any casualty
insurance proceeds available for restoration (the amount not being made
available being referred to herein as the "Deficiency"), Lessor shall have the
right, but not the
obligation, to provide to Tenant funds in the amount of the Deficiency, whether
by refinancing or otherwise. Lessor shall notify Tenant, within thirty (30) days
of receipt of notice that the Mortgagee is not making all such proceeds
available for restoration, of whether Lessor intends to provide the Deficiency.
(e) If (i) Lessor notifies Tenant that Lessor does not intend to
provide funds in the amount of the Deficiency, or (ii) the entire leased
premises or any substantial portion of the leased premises which is sufficient
to render the remaining portion thereof unsuitable for Tenant's continued use or
occupancy in Tenant's reasonable judgment shall be damaged or destroyed by any
casualty, then Tenant shall have the right to terminate this Lease by written
notice given to Lessor within ninety days of learning of Lessor's intent with
respect to the Deficiency or the occurrence of the casualty, whichever is later.
Such notice shall be signed by an authorized employee of Tenant, and shall: (A)
specify such termination date, which shall be the first day of any month
occurring not less than 30 days after the delivery of such notice; and (B)
contain a certification by Tenant, signed by an authorized employee, to the
effect that the leased premises have suffered such a casualty. In such event,
this Lease and all obligations hereunder shall terminate on such termination
date, but only upon payment by Tenant of all rent and other sums due and payable
by it under this Lease to and including such termination date.
13. CONDEMNATION.
(a) If the leased premises or any part thereof shall be taken by condemnation or
other eminent domain proceedings (a "Taking"), Lessor or Tenant shall
immediately notify the other and the Mortgagee of such proceedings. Tenant
expressly waives the provisions of any present or future law relating to such
Taking and agrees that the provisions of this Lease shall control the rights of
Lessor and Tenant.
(b) Tenant hereby irrevocably assigns to Lessor any award or payment to which it
may be or become entitled by reason of any taking of the leased premises or a
part thereof, in or by condemnation or other eminent domain proceedings pursuant
to any law, general or special, or by reason of the temporary requisition of the
use or occupancy of leased premises or any part thereof, by any governmental
authority, civil or military, whether the same shall be paid or payable in
respect of Tenant's leasehold interest hereunder or otherwise. Lessor shall be
entitled to participate fully in any such proceedings at Tenant's cost and
expense.
(c) If and to the extent any Mortgagee makes the award from any Taking (the
"Award") available to Lessor, and provided no default hereunder shall exist at
the time, Lessor shall make such Award available to Tenant for any restoration
work required by this SECTION 13. If no Mortgage shall then be in effect, Lessor
shall make any such Award available to Tenant in accordance with standard
construction lending practice.
(d) If and to the extent any Mortgagee does not make any Award
available for restoration (the amount not being made available being referred to
herein
as the "Deficiency"), Lessor shall have the right, but not the obligation, to
provide to Tenant funds in the amount of the Deficiency, whether by refinancing
or otherwise. Lessor shall notify Tenant, within thirty (30) days of receipt of
notice that the Mortgagee is not making all such proceeds available for
restoration, of whether Lessor intends to provide the Deficiency.
(e) If (i) Lessor notifies Tenant that Lessor does not intend to
provide funds in the amount of the Deficiency, or (ii) the entire leased
premises shall be taken (including any transfer in lieu thereof) in or by
condemnation or other eminent domain proceedings pursuant to any law, general or
special, or any substantial portion of the leased premises which is sufficient
to render the remaining portion thereof unsuitable for Tenant's continued use or
occupancy shall be taken in or by any such proceedings, then Tenant shall have
the right to terminate this Lease by written notice given to Lessor within
ninety days of learning of Lessor's intent with respect to the Deficiency or the
effective date of the taking, whichever is later. Such notice shall be signed by
an authorized employee of Tenant and shall (A) specify such termination date,
which shall be the first day of any month occurring not less than 30 days after
the delivery of such notice; and (B) if less than the entire leased premises
shall have been taken, contain a certification by Tenant, signed by an
authorized employee, to the effect that the portion of the leased premises so
taken is sufficient to fulfill the conditions set forth in this SUBSECTION
13(E). In such event, this Lease and all obligations hereunder shall terminate
on such termination date, but only upon payment by Tenant of all rent and other
sums due and payable by it under this Lease, to and including such termination
date.
(f) If this Lease is not terminated as provided in SUBSECTION 13(E),
then this Lease shall continue in full force and effect and Tenant shall
promptly and diligently after any such taking and at its cost and expense (but
with the funds made available by Lessor) either restore and rebuild the leased
premises to a condition substantially equivalent to their condition prior to
such condemnation or eminent domain proceedings or such temporary taking or
replace the leased premises by the acquisition, construction and installation of
land, improvements, fixtures, furnishings, machinery, equipment and other
personal property fully adequate to replace the leased premises or the portions
thereof so lost or taken; provided, however, that if the cost of such
replacement or restoration and rebuilding would exceed the net condemnation
award, Tenant shall have the right to terminate this Lease upon notice as
provided in SUBSECTION 13(E).
(g) Effective as of the date of any permanent Taking following which
this Lease remains in effect, Fixed Rent shall be reduced in an amount
proportionate to the amount of usable building area Taken. If the use or
occupancy of the entire leased premises or any part thereof shall be temporarily
Taken by any government authority, civil or military, then Fixed Rent shall be
reduced during such temporary Taking by the amount of the Award therefor,
amortized on a monthly basis over the term of the temporary Taking.
(h) For the purposes of this Lease, all amounts paid pursuant to any
agreement with any condemning authority which has been made in settlement of any
condemnation or other eminent domain proceeding affecting the leased premises
shall be deemed to constitute an Award made in such proceeding.
14. SIGNS. Tenant shall have the right to use the exterior of any building on
the leased premises, including the roof, for the purpose of erecting or panting
thereon or attaching thereto a sign or signs advertising Tenant's business,
provided such sign or signs shall not injure any such building and that any sign
attached to any such building shall be in conformity with all applicable laws,
ordinances, rules or regulations. If not previously removed, Tenant shall remove
any such sign or signs upon the termination of this Lease. Any defacement or
damage to the leased premises caused by the removal of such sign or signs shall
be repaired promptly by Tenant at its expense.
15. ALTERATIONS. Subject to any limitation contained in the Mortgage during the
period the Mortgage is in effect, Tenant shall have the right at its own expense
to make such alterations, additions, installations, changes and improvements in
and upon the leased premises as may be necessary for Tenant's purposes, provided
such alterations, additions, installations, changes and improvements shall not
adversely affect the market value of the leased premises or change the character
of the leased premises, nor permanently injure the buildings or diminish their
value. Tenant shall have the right to remove any such alterations, additions,
installations, changes and improvements to the leased premises made by Tenant,
provided that any damage to the leased premises caused thereby will be fully
repaired by Tenant at its expense. In the event Tenant fails to remove any of
such alterations, installations, changes or improvements which Tenant has the
right to remove prior to the termination of this lease, Tenant shall be deemed
to have abandoned the same and thereupon the same shall become the property of
Lessor.
16. REMOVAL OF TRADE FIXTURES. If no default or event of default hereunder has
happened and is continuing, Tenant may at any time during the term hereof remove
from the leased premises any trade fixtures, machinery or equipment belonging to
Tenant or third partes, provided that Tenant shall repair at its expense any
damage to the leased premises caused by such removal.
17. INSPECTION OF PREMISES. Tenant shall permit the Mortgagee, the Lessor and
their duly authorized representatives to enter upon the leased premises at all
reasonable times during business hours for the purpose of inspecting the leased
premises. If any such inspection discloses the need for repairs or replacements
which Tenant is obliged to make under the provisions of this Lease, Tenant shall
make the same promptly.
18. LIENS. Tenant shall commit no act which shall in any way encumber the title,
estate or interest of, the Mortgagee or the Lessor in and to the leased
premises.
19. OPTION TO PURCHASE.
(a) Tenant shall have the one-time option to purchase the leased
premises for its fair market value (the "PURCHASE OPTION") provided that:
(i) This Lease shall be in full force and effect without default
beyond applicable grace periods on the part of Tenant;
(ii) Tenant shall give Lessor written notice (the "OPTION NOTICE")
of its election to exercise the Purchase Option not later than one (1) year
prior to the expiration of the Term, time being of the essence;
(iii) The Purchase Option, in the sole and absolute discretion of
Lessor, shall be inapplicable, null, void and of no further force and effect if,
either as of the time of the giving of the Option Notice or as of the Closing
Date, Tenant shall be in default under any of the terms and conditions of this
Lease; and
(iv) Tenant shall, as of the date of the Option Notice and the
Closing Date, be in actual occupancy of an amount of space equal to at least 90%
of the leased premises.
(b) The purchase price for the leased premises payable by Tenant
to Lessor shall be either:
(i) an amount equal to the "FAIR MARKET VALUE" (as defined and
determined in this SECTION 19), which determination shall be as of the date of
the Option Notice; or
(ii) the price determined and submitted with the Option Notice,
(the "PRICE DETERMINATION NOTICE"). If Lessor shall dispute Tenant's
determination of such price and shall be unable to resolve such dispute with
Tenant, then Lessor shall initiate the arbitration process provided for herein
by designating its arbitrator in a notice (the "LESSOR'S ARBITRATION NOTICE") to
Tenant (which notice must specify the name, address and telephone number of the
person designated to act as an arbitrator on its behalf) given to Tenant no
later than thirty (30) days after Tenant shall have delivered the Price
Determination Notice. The determination of the Fair Market Value of the leased
premises shall then be made in accordance with the provisions of SUBSECTION (C)
hereof. If Lessor fails to deliver the Arbitration Notice as provided above,
then Tenant's determination of the purchase price in the Price Determination
Notice shall be final and conclusive.
(c) "FAIR MARKET VALUE" shall mean the fair market value of the leased
premises based upon the following factors:
(i) that Lessor and Tenant are typically motivated;
(ii) that Lessor and Tenant are well informed and well advised and
each is acting in what it considers its own best interest;
(iii) that a reasonable time under then existing market conditions
is allowed for exposure of the leased premises on the open market;
(iv) that in the event the leased premises or any portion thereof
have been destroyed or damaged by fire or other casualty, such damage has been
fully restored;
(v) that Tenant will incur no moving or storage costs;
(vi) that Tenant will incur no holdover or termination charges
with respect to any existing leases;
(vii) that market rents then being charged for comparable space in
other similar office buildings are being charged at the leased premises;
(viii) that the leased premises is considered free and clear of
this Lease;
(ix) that the leased premises is being purchased in "as is"
condition and Lessor is not obligated to perform any work or make any
improvements of any kind whatsoever; and
(x) that the leased premises is being sold "subject to" all
matters of record other than any Mortgage or other lien placed on the leased
premises by Lessor.
(d) Within thirty (30) days after Tenant's receipt of Lessor's
Arbitration Notice, Tenant shall give notice to Landlord specifying the name,
address and telephone number of the person designated to act as an arbitrator on
Landlord's behalf ("Tenant's Arbitration Notice"). If Tenant fails to deliver
the Tenant's Arbitration Notice within the time above specified, then Lessor
shall provide an additional notice to Tenant requiring Tenant's appointment of
an arbitrator within fifteen (15) days after Tenant's receipt thereof. If Tenant
fails to deliver the Tenant's Arbitration Notice within such fifteen (15) day
period, then Landlord's arbitrator shall be appointed in the same manner as if
both arbitrators cannot agree on the appointment of a third arbitrator as set
forth in SUBSECTION (F) below.
(e) If Tenant designates an arbitrator within the time period specified
above, the two arbitrators so chosen shall meet within thirty (30) days after
Landlord's arbitrator is appointed, and shall exchange sealed envelopes each
containing such arbitrator's written determination of the Fair Market Value.
Neither arbitrator shall be
bound by nor shall either arbitrator make any reference to the determination of
the Purchase Price which was previously furnished by Tenant to Lessor. The Fair
Market Value specified by Lessor's arbitrator shall herein be called "Lessor's
Submitted Value" and the Fair Market Rent specified by Tenant's arbitrator shall
herein be called "Tenant's Submitted Value". Copies of such written
determinations shall promptly be sent to both Lessor and Tenant. Any failure of
either such arbitrator to exchange such determinations shall be deemed
acceptance of the other party's arbitrator's determination as the Fair Market
Value, if, and only if, such failure persists for ten (10) days after notice to
the party for whom such arbitrator is acting.
(f) If the higher determination of Fair Market Value for the space in
question is not more than 105% of the lower determination of such Fair Market
Value, then the Fair Market Value for such space shall be deemed to be the
average of the two determinations. If, however, the higher determination is more
than 105% of the lower determination, then within ten (10) days after the date
the arbitrators submitted their respective Fair Market Value determinations, the
two arbitrators shall together appoint a third arbitrator. In the event of their
being unable to agree upon such appointment within thirty (30) days after the
submission of the respective arbitrators' determinations to Lessor and Tenant,
the third arbitrator shall be selected by the parties themselves if they can
agree thereon within a further period of fifteen (15) days. If the parties do
not so agree, then either party, on behalf of both and on notice to the other,
may request such appointment of an arbitrator meeting the requirements set forth
in SUBSECTION (H) below by the American Arbitration Association located in
Jacksonville, Florida or, if it does not then exist, such successor organization
as may then exist. Such third arbitrator shall, within thirty (30) days after
his appointment, make his own determination of the Fair Market Value and send
copies of this determination promptly to both Lessor and Tenant and their
arbitrators. Whichever of Lessor's Submitted Value or Tenant's Submitted Value
shall be closer to the determination of such third arbitrator shall be averaged
with the amount of the determination of the third arbitrator and the result will
conclusively be deemed to be the Fair Market Value.
(g) Each party shall pay the fees and expenses of the arbitrator
appointed by or for such party, and the fees and expenses of the third
arbitrator and all other expenses (not including the attorneys' fees, witness
fees and similar expenses of the parties, which shall be borne separately by
each of the parties) of the arbitration shall be borne by the parties equally.
(h) Each of the arbitrators selected as herein provided must be a
professional employee or principal of an unaffiliated respectable company
engaged in the business of real estate brokerage and/or consulting operating in
the greater Jacksonville area with at least ten (10) years' experience in the
sales of improved industrial and commercial property.
(i) Each arbitrator shall certify to Lessor and Tenant whether or not,
in the previous three (3) years, the arbitrator or his or her company have (x)
been retained by Lessor or Tenant, and/or (y) been involved in an adversarial
arbitration or
litigation proceeding with either Lessor or Tenant. Lessor and Tenant reserve
the right to reject any arbitrator for good cause within ten (10) business days
after receipt of the certification provided above.
(j) The arbitration shall be conducted, to the extent consistent with
this SECTION 19, in accordance with the then prevailing rules of the American
Arbitration Association (other than the American Arbitration Association rules
relating to the appointment of arbitrators), or such other procedures as are
agreed to by the arbitrators or the parties hereto. In rendering such decision
and award, the arbitrators shall not add to, subtract from or otherwise modify
the provisions of this Lease. Judgment may be had on the decision and award of
the arbitrator(s) so rendered in any court of competent jurisdiction.
(k) In the event the arbitration process is continuing at the end of
the Term, Tenant may remain in possession until the closing under this SECTION
19 of the purchase by Tenant of the leased premises at the same rental being
charged by Lessor in the last month of the Term.
(l) Within ten (10) days after the determination of the purchase price
for the leased premises, Lessor and Tenant shall diligently and in good faith
negotiate and execute a formal contract of sale for the leased premises. If
Lessor and Tenant do not succeed in so negotiating and executing such formal
contract of sale within such ten (10) day period, the Purchase Option shall then
and thereupon be extinguished. Time is and shall be of the essence with respect
to all of the time periods set forth in this SECTION 19.
(m) Lessor shall not be deemed to have failed to negotiate such formal
contract of sale in good faith by requiring, among other things, (a) that the
purchase price be paid by wire transfer or good certified or cashier's check,
(b) that Tenant take title to the leased premises in "as is" condition and
"subject to" all matters of record other than any mortgage or other lien placed
on the leased premises by Lessor, and (c) that Tenant deposit in escrow with
Lessor's counsel a down payment equal to ten (10%) percent of the sales price
forfeitable as liquidated damages in the event of Tenant's default under such
contract of sale.
(n) The closing of the purchase of the leased premises by Tenant shall
occur on a business date fixed by Tenant which is prior to the 45th day
following the determination of the purchase price for the leased premises.
(o) Neither the Purchase Option nor a memorandum thereof shall be
recorded against the leased premises.
20. INVESTMENT CREDIT.
To the extent permissible by law, the Lessor agrees to elect and take
all other action necessary to pass on to the Tenant any investment credits
allowable for federal, state and local income tax purposes in regard to any item
of property leased hereunder.
21. ASSIGNMENT AND SUBLETTING.
(a) Tenant may not assign this Lease or sublet the leased premises or any part
thereof without the prior written consent of Lessor. No assignment or sublease
made as permitted by this SECTION 21 shall affect or reduce any of the rights of
Lessor or obligations of Tenant hereunder, and all the obligations of Tenant
hereunder shall continue in full force and effect as the obligations of a
principal and not as the obligations of a guarantor or surety, to the same
extent as though no assignment or subletting had been made. Neither this Lease
nor the term hereby demised shall be mortgaged or otherwise encumbered by
Tenant. Tenant shall, within 10 days after the execution and delivery of any
such assignment or sublease, deliver a conformed copy thereof to Lessor.
(b) Tenant hereby irrevocably assigns to Lessor all rents and other sums due or
to become due under any sublease of all or any portion of the leased premises
entered into pursuant to this Lease, provided that so long as no Event of
Default shall have occurred or be continuing hereunder and Lessor shall not have
given notice of such default to Tenant, Tenant shall have the right to collect
and receive such rents and other sums for its own uses and purposes. Upon the
occurrence of any Event of Default hereunder, if Lessor shall give notice of
such default to Tenant, Lessor shall have absolute title to such rents and other
sums and the absolute right to collect and receive the same.
22. CONDITIONAL LIMITATIONS - DEFAULT PROVISIONS.
(a) Any of the following occurrences and acts shall constitute an Event of
Default under this Lease:
(i) if Tenant at any time during the term of this Lease (and regardless of the
pendency of any bankruptcy, reorganization, receivership, insolvency or other
proceedings, in law, in equity or before any administrative tribunal, which have
or might have the effect of preventing Tenant from complying with the terms of
this Lease), shall (a) fail to make when due any payment of rent herein required
to be paid by Tenant, or (b) fail to make when due any payment of additional
rent or any other sum herein required to be paid by Tenant, or (c) fail to
observe or perform any of Tenant's other covenants, agreements or obligations
hereunder, and if any such failure shall continue as to (b) above for 10 days
after Lessor shall have given Tenant notice of such failure, or as to (c) above
for 30 days after Lessor shall have given Tenant notice specifying such failure
(or if such default cannot be cured by the payment of money and cannot, with due
diligence, be cured within such 30 day period owing to causes beyond the control
of Tenant, if Tenant shall fail to proceed promptly to cure the same and
thereafter prosecute the curing of such default with diligence and continuity),
or
(ii) if any Event of Default shall occur under the Mortgage or any of the
Mortgage Documents as a result of any act or omission of Tenant, or
(iii) if Tenant or ATC shall file a petition in bankruptcy or for reorganization
or for an arrangement pursuant to any present or future federal
bankruptcy act or under any similar federal or state law, or shall be
adjudicated a bankrupt or insolvent or shall make an assignment for the benefit
of its creditors or shall admit in writing its inability to pay its debts
generally as they become due, or if a petition or answer proposing the
adjudication of Tenant or ATC as a bankrupt or its reorganization under any
present or future federal bankruptcy act or any similar federal or state law
shall be filed in any court and such petition or answer shall not be discharged
or denied within 90 days after the filing thereof, or
(iv) if a receiver, trustee or liquidator of Tenant or ATC or of all or
substantially all of the property of Tenant or ATC or of the leased premises
shall be appointed in any proceeding brought by Tenant or ATC, or if any such
receiver, trustee or liquidator shall be appointed in any proceeding brought
against Tenant or ATC and shall not be discharged within 90 days after such
appointment or if Tenant or ATC shall consent to or acquiesce in such
appointment, or
(v) if at any time the leased premises shall have been abandoned or left
substantially unoccupied for 30 consecutive days, or
(vi) if the interest of Tenant in the leased premises or part thereof shall be
levied upon or attached in any proceeding and such process shall not be vacated
or discharged within 90 days after such levy or attachment.
(b) This Lease and the Term and estate hereby granted are subject to the
limitation that whenever an event of default shall have happened and be
continuing, then Lessor shall have the right at its election, then or at any
time thereafter while any such event of default shall continue and regardless of
and notwithstanding the fact that Lessor has or may have some other remedy
hereunder or by virtue hereof, in law or in equity, to give Tenant written
notice of Lessor's intention to terminate the Term on a date specified in such
notice, and upon the giving of any such notice, the Term and the estate hereby
granted shall expire and terminate upon the date so specified in said notice as
fully and completely and with the same force and effect as if the date specified
in such notice were the date hereinbefore fixed for the expiration of the Term,
and all rights of Tenant hereunder shall expire and terminate, but Tenant shall
remain liable as hereafter provided. In the event any such notice is given,
Lessor shall have the immediate right of re-entry and possession of the leased
premises and the right to remove all persons and property therefrom. Should
Lessor elect to re-enter as herein provided or should Lessor take possession
pursuant to legal proceedings or pursuant to any notice provided for by law,
Lessor may from time to time relet the leased premises or any part thereof for
such term or terms and at such rental or rentals and upon such terms and
conditions as Lessor may deem advisable, with the right to make alterations in
and repairs of the leased premises.
(c) In the event of any termination of the Term as in this SECTION 22 above
provided or as otherwise permitted by law, Tenant shall then peaceably quit and
surrender the leased premises to Lessor, and Lessor may, without further notice,
enter upon, re-enter, possess and repossess the same by force, summary
proceedings, ejectment or otherwise and again have, repossess and enjoy the same
as if this Lease
had not been made, and in any such event, neither Tenant nor any person claiming
through or under Tenant by virtue of any statute or of an order of any court
shall be entitled to possession or to remain in possession of the leased
premises, but shall forthwith quit and surrender the leased premises, and
Lessor, at its option, shall forthwith, notwithstanding any other provisions of
this Lease to the contrary, be entitled to recover from Tenant (in lieu of all
other claims for damages on account of such termination) as and for liquidated
damages an amount equal to the excess of all the rents reserved hereunder for
the unexpired portion of this Lease discounted to the then present worth over
the fair rental value of the leased premises at the time of termination for such
unexpired portion. The discount rate to be used in discounting reserve rents and
in determining such fair rental value shall be the Prime Rate of Bank of
America, N.A. in effect at the time the calculation pursuant to this SUBSECTION
(C) shall be required to be made. Nothing herein contained shall, however, limit
or prejudice the right of Lessor, in any bankruptcy or reorganization or
insolvency proceedings, to prove for and obtain as liquidated damages by reason
of such termination an amount equal to the maximum allowed by any bankruptcy or
reorganization or insolvency proceedings, or to prove for and obtain as
liquidated damages by reason of such termination an amount equal to the maximum
allowed by any 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 shall be greater, equal to, or less than the amount of the excess
referred to above.
(d) If Lessor shall re-enter and obtain possession of the leased premises by
reason of or following an event of default, Lessor shall have the right, without
notice, to repair or alter the leased premises in such manner as to Lessor may
seem necessary or advisable so as to put the leased premises in good order and
to make the same rentable, and shall have the right, at Lessor's option to relet
the leased premises or any part thereof, and Tenant agrees to pay to Lessor on
demand all expenses incurred by Lessor in obtaining possession, and in altering,
repairing and putting the leased premises in good order and condition, and in
reletting the same, including reasonable fees of attorneys, architects and other
experts, and also any other reasonable and legitimate expenses or commissions,
and Tenant further agrees to pay to Lessor upon each rental payment date
following the date of such re-entry to and including the date set forth in
SECTION 3 hereof for the expiration of the Term in effect immediately prior to
such re-entry the sums of money which would have been payable by Tenant as rent
hereunder on said rent payment dates if Lessor had not re-entered and resumed
possession of the leased premises, deducting only the net amount of rent, if
any, which Lessor shall actually receive (after deducting from the gross
receipts the expenses, costs and payments of every kind of Lessor which in
accordance with the terms of this Lease would have been borne by Tenant) in the
meantime from and by any reletting of the leased premises, and Tenant hereby
agrees to be and remain liable for all sums otherwise payable by Tenant under
this Lease including, but not limited to, the expenses of Lessor aforesaid, as
well as for any deficiency aforesaid, and Lessor shall have the right from time
to time to begin and maintain successive actions or other legal proceedings
against Tenant for the recovery of such deficiency or damages or for a sum equal
to any installment or installments of rent or additional rent and any other sums
payable hereunder, and to recover the same
upon the liability of Tenant herein provided, which liability it is expressly
covenanted shall survive the issuance of any action to secure possession of the
leased premises. Nothing herein contained shall be deemed to require Lessor to
wait to begin such action or other legal proceedings until the date when this
Lease would have expired by limitation had there been no such event of default.
(e) If under any of the preceding provisions of this SECTION 22, Lessor shall be
entitled to give Tenant a notice of termination of the Term, Lessor, without
giving such notice of termination, and notwithstanding the continuance of the
Term and notwithstanding that Lessor may have re-entered or taken possession of
the leased premises pursuant to this SECTION 22, shall have, to the extent
permitted by law, all the rights, powers and remedies given to Lessor by the
preceding provisions of this SECTION 22, and Tenant shall have the obligations
imposed upon it by such provisions. No such re-entry or taking of possession of
the leased premises by Lessor shall be construed as an election on Lessor's part
to terminate the Term unless a written notice of such intention be given to
Tenant or unless such termination be decreed by a court of competent
jurisdiction.
(f) The words "enter," "re-enter" or "re-entry" are not restricted to their
technical legal meaning.
(g) No right or remedy herein conferred upon or reserved to Lessor is intended
to be exclusive of any other right or remedy, and each and every right and
remedy shall be cumulative and in addition to any other right or remedy given
hereunder, or now or hereafter existing at law or in equity or by statute. The
failure of Lessor to insist at any time upon the strict performance of any of
the covenants or agreements or to exercise any option, right, power or remedy
contained in this Lease shall not be construed as a waiver or a relinquishment
thereof for the future. The receipt by Lessor of any rent, any additional rent
or any other sum payable hereunder with knowledge of the breach of any covenant
or agreement contained in this Lease shall not be deemed a waiver of such
breach, and no waiver by Lessor of any provision of this Lease shall be deemed
to have been made unless expressed in writing and signed by Lessor. In addition
to other remedies provided in this Lease, Lessor shall be entitled, to the
extent permitted by law, to injunctive relief in case of the violation, or
attempted or threatened violation, of any of the covenants, agreements,
conditions or provisions of this Lease or to a decree compelling performance of
any of the covenants, agreements, conditions or provisions of this Lease, or to
any other remedy allowed to Lessor at law or in equity.
(h) In the event either Lessor or Tenant shall be in default in the performance
of any obligations under this Lease and an action shall be brought for the
enforcement thereof, the prevailing party shall be entitled to reimbursement of
all the expenses incurred in connection therewith, including reasonable
attorneys' fees.
23. OBLIGATIONS UNDER AGREEMENT. Notwithstanding anything herein to the
contrary, Tenant hereby agrees to perform any and all obligations, duties and
covenants of the Lessor under the Mortgage in a timely and efficient manner,
provided;
however, that the payments required to be made under such Mortgage when paid by
Tenant shall be credited toward Tenant's obligations to pay rent hereunder. Said
credits shall be made against Tenant's obligations in the order in which they
come due starting with the obligations which come due at the earliest time.
24. ESTOPPEL CERTIFICATES. Tenant will, at any time and from time to time, upon
not less than 20 days' prior request by Lessor or the Mortgagee, execute,
acknowledge and deliver to Lessor or the Mortgagee, as the case may be, a
statement in writing, executed by an authorized employee, certifying that this
Lease is unmodified and in full effect (or, if there have been modifications,
that this Lease is in full effect as modified, and setting forth such
modifications) and the dates to which the rent, additional rent and other sums
payable hereunder have been paid, and either stating that to the knowledge of
the signer of such certificate no default exists hereunder or specifying each
such default of which the signer may have knowledge; it being understood and
intended that any such statement by Tenant may be relied upon by Lessor or the
Mortgagee or by any prospective purchaser of the leased premises.
25. SURRENDER OF POSSESSION. Upon the expiration or earlier termination of this
Lease, Tenant shall peaceably leave and surrender the leased premises to Lessor
in the same condition in which the leased premises were originally received from
Lessor at the commencement of the Term, except as improved, repaired, rebuilt,
restored, altered or added to as provided in or required by any provision of
this Lease and except for ordinary wear and tear and in the case of termination
pursuant to SECTION 12 OR 13, except for the condemned portion or the damage
giving rise to such termination, as the case may be. Tenant shall remove from
the leased premises on or prior to such expiration or earlier termination all
property situated thereon which is not owned by Lessor, including, without
limitation, Tenant's trade fixtures, and at its sole cost and expense shall on
or prior to such expiration or earlier termination, repair any damage caused by
such removal. Property not so removed shall become the property of Lessor, which
may thereafter cause such property to be removed from the leased premises and
disposed of, but the cost of any such removal and disposition as well as the
cost of repairing any damage caused by such removal shall be borne by Tenant.
26. SEPARABILITY. Each and every covenant and agreement contained n this Lease
shall be for all purposes construed to be a separate and independent covenant
and agreement and the breach of any such covenant or agreement by Lessor shall
not to any extent discharge or relieve Tenant from Tenant's obligation to
perform each and every covenant and agreement of this Lease to be performed by
Tenant. If any term or provision of this Lease or the application thereof to any
person or circumstance shall to any extent be found invalid and unenforceable by
a court of competent jurisdiction, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those to which it is invalid or unenforceable, shall no be affected thereby, and
each term and provision of this Lease shall be valid and shall be enforced to
the extent permitted by law.
27. MEMORANDUM OF LEASE. This Lease shall not be recorded, but the parties
agree, at the request of either of them, to execute a Memorandum of Lease for
recording, containing, inter alia, the names of the parties, the legal
description of the leased premises and the Term.
28. NOTICE. Whenever under this Lease a provision is made for notice of any
kind, it shall be deemed sufficient notice and service thereof if such notice is
in writing and is delivered or sent by: (i) certified mail, postage prepaid,
return receipt requested, (ii) nationally recognized overnight carrier or (iii)
telecopier facsimile, with "hard" copy to follow by one of the methods in (i) or
(ii) above addressed to the address of the party in question first above written
and to the Mortgagee at such address as is designated in the Mortgage Documents,
or to such other address as either party or the Mortgagee may designate by
notice pursuant to this Section. Notices shall be deemed given either one
business day after delivery to the overnight carrier, the day of delivery and
receipt if delivered by fax (or the first business day thereafter if the day of
delivery and receipt is not a business day) or three business days after being
mailed as provided in clause (i) above. Notices under this Lease may be given by
the attorneys for the respective parties.
29. SUCCESSION. All of the covenants, agreements, conditions and undertakings in
this Lease shall extend and inure to and be binding upon the successors in
interest and the assigns of the respective parties hereto.
30. RIGHT OF FIRST OFFER.
(a) Provided that this Lease shall be in full force and effect without
default on the part of Tenant, and that the leased premises are for sale, Lessor
shall first give to Tenant notice of Lessor's willingness to sell the leased
premises to Tenant for the sales price set forth in such notice (the "Price
Notice"). Tenant shall have 15 days after Lessor gives the Price Notice to agree
to purchase the leased premises for such price or reject the Price Notice. If
Tenant does not return a copy of the Price Notice to Lessor indicating thereon
Tenant's unconditional agreement to so purchase within such 15-day period, the
Price Notice shall be deemed rejected. If Tenant rejects or is deemed to have
rejected the Price Notice, Lessor shall be free to sell the leased premises to
any other person or entity at the price stated in the Price Notice or at any
higher price and on such commercially comparable terms as may have been set
forth in the Price Notice. If, however, Lessor does not convey the leased
premises to such other person within 150 days after the date Lessor gave the
Price Notice, and if the leased premises are for sale, Lessor shall again offer
the leased premises to Tenant by Price Notice as provided herein, and Tenant
shall have the same right to agree to purchase the leased premises or reject the
Price Notice. In the event Tenant agrees to purchase the leased premises as
provided herein, Lessor and Tenant shall diligently and in good faith negotiate
and execute a formal contract of sale for the leased premises within ten (10)
business days after such agreement is given to Tenant. If Lessor and Tenant do
not succeed in so negotiating and executing such formal contract of sale within
such ten (10) day period, or if Lessor shall convey the leased premises within
the 150-day period as aforesaid, this right of first offer shall then and
thereupon be extinguished. Time is and shall be of the essence with respect to
all of the time periods set forth in this SUBSECTION 30(A).
(b) Lessor shall not be deemed to have failed to negotiate such formal
contract of sale in good faith by requiring, among other things, (a) that the
purchase price be paid by wire transfer or good certified or cashier's check,
(b) that Tenant take title to the leased premises in "as is" condition and
"subject to" all matters of record other than any mortgage or other lien placed
upon the leased premises by Lessor, and (c) that Tenant deposit in escrow with
Lessor's counsel a down payment equal to ten (10%) percent of the sales price
forfeitable as liquidated damages in the event of Tenant's default under such
contract of sale.
(c) The closing of the purchase of the leased premises by Tenant shall
occur on a business date fixed by Tenant which is prior to the 90th day
following the giving by Lessor of the operative Price Notice.
(d) Neither this right of first offer nor a memorandum hereof shall be
recorded against the leased premises.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the date first written above.
V.P.I. PROPERTIES ASSOCIATES, d/b/a
V.P.I. PROPERTIES ASSOCIATES, LTD.,
(Lessor)
By
Name:
Title:
AMERICAN TECHNICAL CERAMICS
(FLORIDA), INC., (Tenant)
By
Name:
Title:
The undersigned hereby guarantees performance by AMERICAN TECHNICAL
CERAMICS (FLORIDA), Inc. of its obligations under this Lease.
AMERICAN TECHNICAL CERAMICS CORP.
By
Name:
Title:
STATE OF FLORIDA )
)
COUNTY OF ▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this 16th day of
May, 2000, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner of V.P.I. Properties
Associates, a New York limited partnership, qualified to do business in the
State of Florida under the name V.P.I. Properties Associates, Ltd., on behalf of
the partnership.
Notary Public, State of Florida
at Large.
NOTARIAL SEAL) My Commission Expires: _____
STATE OF NEW YORK )
)
COUNTY OF SUFFOLK )
The foregoing instrument was acknowledged before me this 16th day of
May, 2000, by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President - Administration of American
Technical Ceramics (Florida), Inc., a Florida corporation, on behalf of the
corporation.
Notary Public, State of New York
at Large.
NOTARIAL SEAL) My Commission Expires: _____
STATE OF NEW YORK )
)
COUNTY OF SUFFOLK )
The foregoing instrument was acknowledged before me this 16th day of
May, 2000, by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President - Administration of American
Technical Ceramics Corp, a Delaware corporation, on behalf of the corporation.
Notary Public, State of New York
at Large.
NOTARIAL SEAL) My Commission Expires: _____
EXHIBIT A
A part of Tract "E" as shown on map of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇'▇ Subdivision, Plat
Book 7, Page 10 of the Current Public Records of ▇▇▇▇▇ County, Florida, more
particularly described as follows: Commence at the Southwest corner of Section
24, Township 2 South, Range 27 East; thence South 88 degrees 24 minutes 18
seconds West, 110 feet to the Westerly right-of-way line of Corporate Square
Boulevard as established for a width of 100 feet thence South 01 degrees 32
minutes 58 seconds East along the said Westerly right-of-way line, 63.43 fee to
the point of curve of a curve to the right, said curve having a radius of 750
feet, thence along the arc of said curve and along said right-of-way line an arc
distance of 431.13 feet, said curve having a chord bearing and distance of South
14 degrees 55 minutes 07 seconds West, 425. 22 feet to the point of tangency of
said curve; thence continue along said Westerly right-of-way line South 31
degrees 23 minutes 11 seconds West, 113.62 feet to the point of curve of a curve
to the left, said curve having a radius of 1,350 feet; thence along the arc of
said curve and along said right-of-way line an arc distance of 925. 69 feet,
said curve having a chord bearing and distance of South 11 degrees 44 minutes 33
seconds West, 907.66 feet; thence continue along the arc of said curve and along
said right-of-way line an arc distance of 80.08 feet, said curve having a chord
bearing and distance of South 09 degrees 36 minutes 03 seconds East, 80.07 feet,
to the intersection with a curve concave Easterly having a- radius of 60 feet;
thence Southerly along and around said curve an arc distance of 71. 80 feet,
said curve having a chord bearing and distance of South 12 degrees 44 minutes 05
seconds East, 67.59 feet, to an intersection with the aforesaid Westerly
right-of-way line of Corporate Square Boulevard, said Westerly right-of-way line
being in a curve concave Easterly having a radius of 1,350 feet; thence
Southerly along and around said curve an arc distance of 18.13 feet, said curve
having a chord bearing and distance of South 14 degrees 33 minutes 14 seconds
East, 18.13 feet to the Point of Beginning. From said Point of Beginning, run
thence North 75 degrees 03 minutes 41 seconds East, 17.78 feet to the
intersection with a curve concave Northerly having a radius of 60 feet; thence
Easterly along and around said curve an arc distance of 70. 32 feet, said curve
having a chord bearing and distance of North 75 degrees 03 minutes 41 seconds
East, 66.36 feet; thence North 75 degrees 03 minutes 41 seconds East, 15.85
feet; thence Southerly along and around a curve concave Easterly having a radius
of 1,250 feet an arc distance of 15.26 feet, said curve having a chord bearing
and distance of South 15 degrees 17 minutes 18 seconds East, 15.26 feet; thence
North 88 degrees 26 minutes 48 seconds East, 289.50 feet to an intersection with
the Westerly line of lands described in Official Records Volume 3458, Page 363;
thence South 02 degrees 09 minutes 19 seconds East along the Westerly line of
said lands, 200.28 feet to the Southwest corner of said lands; thence North 88
degrees 26 minutes 34 seconds East, along the Southerly line of said lands,
99.85 feet to the Southeast corner of said lands; thence South 02 degrees 07
minutes 47 seconds East, along the Westerly line of Southside Estates Unit No.
4, as recorded in Plat Book 18, Pages 79, 79A and 79B, 426.8 feet: thence South
87 degrees 52 minutes 13 seconds West, 328.0 feet; thence North 02 degrees 07
minutes 47 seconds West, 539.8 feet; thence South 87 degrees 52 minutes 13
seconds West, 143.92 feet; thence North 14 degrees 33 minutes 14 seconds West,
85.89 feet to the Point of Beginning. Said parcel contains, 4.5838 acres more or
less.
