SUB-LEASE AGREEMENT
By and Between
Xxxx Hospitality, Inc. III
as Landlord
and
Janus Industries, Inc.
as Sub-Tenant
Dated as of: April 24, 1997
Property location: 0000 Xxxxxxxxx Xxxxxxxxx, X.X.
Xxxx Xxxxx, Xxxxxxx 00000
Condominium Xxxxx 000, 000, 000, 000 and part of 235
for 2,280 Square Feet
TABLE OF CONTENTS
Page
----
Article 1 - Premises ......................................... 2
Article 2 - Term ............................................. 2
Article 3 - Rent ............................................. 3
Article 4 - Possession; Quiet Enjoyment ...................... 5
Article 5 - Use of Premises .................................. 5
Article 6 - Taxes ............................................ 6
Article 7 - Insurance ........................................ 6
Article 8 - Indemnification .................................. 7
Article 9 - Utilities and Services; Parking .................. 7
Article 10 - Premises "As Is" ................................. 8
Article 11 - Repairs and Maintenance .......................... 8
Article 12 - Alterations ...................................... 9
Article 13 - Trade Fixtures ................................... 9
Article 14 - Mechanics' Liens ................................. 9
Article 15 - Damage and Destruction ........................... 10
Article 16 - Condemnation ..................................... 10
Article 17 - Environmental Provisions.......................... 11
Article 18 - Signs and Advertising............................. 12
Article 19 - Entry by Landlord................................. 12
Article 20 - Assignment and Subletting......................... 12
Article 21 - Subordination; Estoppel........................... 14
Article 22 - Default........................................... 14
Article 23 - Return of Premises; Holdover...................... 17
Article 24 - Notices........................................... 17
Article 25 - Broker's Commission............................... 18
Article 26 - Limitation of Landlord's Liability................ 18
Article 27 - Rules and Regulations............................. 18
Article 28 - Recording of Sub-lease........................... 19
Article 29 - Miscellaneous..................................... 19
Exhibits
Exhibit A - Premises
SUB-LEASE AGREEMENT
Summary of Sub-Lease Terms
Premises Address: 0000 Xxxxxxxxx Xxxxxxxxx, X.X.
Square Footage: 2,280 Square Feet
Term: 24 months, commencing April 24, 1997 and expiring
April 23, 1999.
Option: None.
Rent: $5.75 rent per square foot per year, payable in
equal monthly installments of $1,092.50, plus
$2.25 condo fees per square foot per year, payable
in equal monthly installments of $427.50
(hereinafter referred to as "Base Rent") plus
applicable taxes on both of these amounts.
Deposit:
$1,520.00 (one month's rent and condo fees)
Sub-Leasehold Improvements: As is condition.
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Sub-Lease AGREEMENT
This Sub-Lease AGREEMENT ("Sub-Lease"), dated as of this 24th day of April,
1997, is made by and between Xxxx Hospitality, Inc. III, an Ohio corporation,
having an address at 0000 Xxxxxxxxx Xxxxxxxxx, X.X., Xxxx Xxxxx, Xxxxxxx 00000
("Landlord"), and Janus Industries, Inc., a Delaware corporation, having an
address at 0000 Xxxxxxxxx Xxxxxxxxx, X.X. Xxxx Xxxxx, Xxxxxxx 00000
("Sub-Tenant").
Article 1 - Premises
Section 1.01. Landlord hereby leases to Sub-Tenant, and Sub-Tenant hereby leases
from Landlord, for the term and subject to the covenants, agreements and
conditions hereinafter set forth, an undivided interest in those certain
premises located at 0000 Xxxxxxxxx Xxxxxxxxx, X.X. identified as Premises (the
"Premises") outlined in yellow on Exhibit A attached hereto currently being
leased by Landlord from The Xxxx Group of Boca, the Owner of the Premises.
Section 1.02. The rentable area of the Premises is agreed to be 2,280 square
feet. The Premises are a portion of the building (the "Building") located at
0000 Xxxxxxxxx Xxxxxxxxx X.X. in Boca Raton, Florida and are known as
condominium units 231, 232, 233, 234 and part of 235 (collectively the
"Property").
Section 1.03. Landlord hereby grants to Sub-Tenant the nonexclusive right to use
the common areas associated with the Building (the "Common Areas"), which are
defined herein as all areas and facilities outside the Premises contained in or
related to the Building that are provided for the general use and convenience of
Sub-Tenant and of other tenants of rental space in the Building and their
respective agents, invitees and customers. The Common Areas shall include,
without limitation, pedestrian walkways, restrooms, stairways, landscaped areas,
sidewalks, service corridors, throughways and private roads servicing the
Building. The Common Areas shall also include the parking facilities servicing
the Building (the "Parking Area").
Article 2 - Term
Section 2.01. The term (the "Initial Term") of this Sub-Lease shall have
commenced on April 24, 1997 (the "Commencement Date") and shall expire on April
23, 1999 (the "Expiration Date"), subject to an earlier termination upon default
(as hereinafter provided).
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Article 3 - Rent
Section 3.01. Commencing on the Commencement Date and continuing through the
Expiration Date, Sub-Tenant agrees to pay to Landlord annual rent ("Base Rent")
for the use of the Premises, in lawful money of the United States in the amount
of $8.00 per square foot, payable in equal monthly installments of $1,520.00.
All installments of Base Rent shall be payable on the first day of each month in
advance.
Section 3.02. In addition to Base Rent, Sub-Tenant shall pay as additional rent
(hereinafter called "Additional Rent") Sub-Tenant's Pro Rata Share (fifty
percent (50%)) (a) of all real estate taxes and assessments of any kind relating
to the Property excluding condominium fees which have been included in the Base
Rent and (b) of all Operating Costs (as hereinafter defined) incurred by the
Landlord. Landlord shall deliver to Sub-Tenant from time to time written
estimates with respect to Additional Rent payable hereunder. Sub-Tenant shall
pay such amounts upon receipt of such statements. As soon as reasonably
practicable after the end of each calendar year, Landlord shall deliver to
Sub-Tenant a reasonably detailed statement setting forth the items included in
Additional Rent for such prior calendar year. If Sub-Tenant shall have paid less
than the amount set forth in such statement, Sub-Tenant shall pay the balance
shown on such statement to Landlord within thirty (30) days after the date of
such statement. If Sub-Tenant shall have paid more than the amount set forth in
such statement, Landlord shall credit such amount against future payments of
Additional Rent. Additional Rent and Base Rent are herein collectively referred
to as "Rent".
For purpose of this Sub-Lease, the term "Operating Costs" shall mean all costs
incurred and expenditures of whatever nature made by Owner and/or Landlord
(including costs and expenditures for outside contractors, and contractors who
may be affiliated with Owner and/or Landlord to the extent that the contracts
are at reasonable rates consistent with the type and quality of the services
rendered) in the operation and management, for repairs, replacements, and
improvements, or for cleaning and maintenance of the Property including, without
limitation, parking areas, driveways and walkways on or related to the Property,
related equipment, facilities and appurtenances, elevators, and cooling and
heating equipment owned by the Owner and/or Landlord. Operating Costs shall
include, but not be limited to, the following:
(i) sales, federal social security, unemployment and old age taxes and
contributions and state unemployment taxes and contributions accruing to and
paid on account of all employees who are employed on account of the Property
(other than employees of independent contractors);
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(ii) all charges, costs, expenses and rates connected with or for or on
account of (a) water supplied to the Property and all sewer use charges, (b)
heat, ventilation, air conditioning, and security services supplied to the
Property, (c) janitorial expenses and the cleaning of the Property, surrounding
areaways and windows, whether performed by Owner and/or Landlord's employees or
by persons or firms under contract with Owner and/or Landlord or Owner and/or
Landlord's managing agent, (d) upkeep and maintenance of all elevators in the
Property (if any), (e) the upkeep, maintenance and replacement of landscaping,
plant material and decoration inside and outside of the Property, (f) the
maintenance and cleaning of all parking area, driveways and walkways, (g) the
shoveling, plowing and removal of snow, ice, rubbish and debris from the
Property, (h) the painting and general repair of the Property, (i) building
supplies, (j) general office and administrative expenses (including without
limitation a management fee, office expenses and supplies, and date processing),
(k) legal and accounting expenses and (l) licenses, permits and other
governmental charges;
(iii) all wage and salary costs including the cost of all employee benefits
for all employees who are employed on account of the Property and all management
fees or expenses, whether based upon rents or otherwise; and the imputed costs
equal to the loss of rent by Owner for making available to the managing agent
space for an office within the Property; and
(iv) all charges, costs, expenses and rates connected with electric current
supplied to the Property, including the cost of electric current for any
elevators, lights, air conditioning, heating, and electrical alarm systems but
not including electric current which is either paid for directly to the utility
by the user/tenant or separately billed by and paid to the Landlord relating to
the user/tenant's individual consumption;
(v) premiums for fire, casualty, rent loss, liability and all other
insurance as may from time to time be carried by Owner in connection with the
Property, (as deemed appropriate by Owner) excluding premiums paid by tenants;
(vi) all other expenses or costs which, in accordance with generally
accepted accounting principles would be considered as an expense of operating,
managing, maintaining or repairing the Property.
Section 3.03. It is the purpose and intent of Landlord and Sub-Tenant that the
Rent shall be absolutely net to Landlord and that Sub-Tenant shall pay, without
notice or demand, and without abatement, deduction or setoff, and shall hold
harmless and indemnify Landlord from and against all costs, charges, duties,
rates, licenses and permit fees, real and personal property taxes, levies and
assessments, insurance premiums, and expenses relating to the Premises which may
arise or become due during the Sub-Lease
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Term, other than (a) expenses incurred by or at the instance of Landlord which
Sub-Tenant does not agree to pay or reimburse Landlord for under the provisions
of this Sub-Lease and (b) payment of any amounts secured by liens on the
Premises created by Landlord. In the event of any nonpayment of any of the
foregoing, Landlord shall have, in addition to all other rights and remedies,
all of the rights and remedies provided for herein or by law in the case of
nonpayment of net rent.
Section 3.04. All payments of Rent required to be made hereunder shall be made
payable to and sent to Landlord at the address set forth in Article 19 hereof.
Section 3.05. A late fee of 5% of the overdue amount will be charged for Rent
received after the third day of the month for payments of Base Rent or after the
thirty-third day after the statement is sent by Landlord for Additional Rent.
Section 3.06. Upon execution of this Sub-Lease, Sub-Tenant shall deposit with
Landlord the sum of $1,520.00 (the "Deposit"), which shall be held as a security
for Sub-Tenant's performance as herein provided. In no event shall the Security
Deposit be considered a measure of liquidated damages. All or any part of the
Security Deposit may be applied by Landlord in full or partial satisfaction of
any default by Sub-Tenant. If all or any part of the Security Deposit is so
applied, Sub-Tenant upon demand will restore the Security Deposit to its full
amount. At the expiration of the Sub-Lease and upon the satisfaction by
Sub-Tenant of its obligations hereunder the balance of the Security Deposit, and
any accrued interest thereon, will be paid over to Sub-Tenant.
Article 4 - Possession: Quiet Enjoyment
Section 4.01. Landlord shall, on or before the Commencement Date, deliver
possession of the Premises to Sub-Tenant, including completed leasehold
improvements as set forth in Article 10 hereof, in good condition and repair,
and in material compliance with all governmental codes, laws, ordinances,
regulations and requirements applicable to the Premises and to Sub-Tenant's use
thereof.
Section 4.02. Landlord covenants and agrees to keep Sub-Tenant in quiet
possession and enjoyment of the Premises during the Term, and warrants that it
has full power and authority to lease the Premises to Sub-Tenant for the Term.
Article 5 - Use of Premises
Sub-Tenant shall be permitted to use the Premises for the purposes of general
office use (the "Permitted Use"). In the event Sub-Tenant is prohibited from
using the Premises for the Permitted Use
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for any reason other than the willful acts or negligence of Sub-Tenant,
Sub-Tenant shall have the right to terminate this Sub-Lease upon thirty (30)
days written notice to Landlord, whereupon Landlord shall promptly refund or
cause to be refunded to Sub-Tenant any advance Rent, the Deposit and/or other
monies paid by Sub-Tenant.
Article 6 - Taxes
Section 6.01. Sub-Tenant shall pay before delinquency all taxes that become
payable during the Initial Term or the Term which are levied or assessed upon
Sub-Tenant's equipment, furniture, fixtures and Sub-Tenant's other personal
property installed or located in or on the Premises.
Section 6.02. Landlord shall cause Owner to pay before delinquency all real
property and/or rental taxes which are now or hereafter imposed upon the
Property and/or the Building by any governmental agency or authority having
jurisdiction over the Property, or any net income, franchise, estate,
inheritance or transfer or any net income, franchise, estate, inheritance or
transfer tax imposed upon the Property and/or Building, subject to whatever
rights. Landlord shall be reimbursed by the Sub-Tenant for payment of all or a
portion of such taxes as provided in Article 3.
Article 7 - Insurance
Section 7.01. Sub-Tenant shall maintain, throughout the Term, a policy of
comprehensive liability insurance, naming Landlord as an additional name
insured, against all claims in connection with Sub-Tenant's Permitted Use or
occupancy of the Premises. Such policies shall have limits of liability of not
less than $1,000,000 for personal injury or death of any one person, not less
than $1,000,000 for any one incident, and not less than $50,000 for property
damage. Sub-Tenant shall furnish Landlord, upon written demand therefor, a copy
of such policy or a certificate evidencing such insurance. Such insurance policy
shall provide at least thirty (30) days cancellation notice to Landlord.
Section 7.02. Landlord shall cause Owner to maintain, throughout the Term (a) a
policy of comprehensive liability insurance with respect to the Property, and
(b) policies of insurance covering damage to the Building, excluding
Sub-Tenant's fixtures, or equipment, in the amount of the full replacement value
thereof, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief, and
"all risk". Landlord shall cause Owner to furnish to Sub-Tenant, upon written
demand therefor, a copy of such policies or a certificate evidencing such
insurance.
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Section 7.03. Landlord and Sub-Tenant hereby mutually waive their respective
rights of recovery against each other for any loss of, or damage to, either
party or its property, where such loss or damage is insured by an insurance
policy required to be in effect at the time of such loss or damage; and they
further mutually agree that their respective insurance companies shall have no
right of subrogation against the other on account thereof. Each party shall
obtain any special endorsements, if required by its insurer, whereby the insurer
waives its rights of subrogation against the other party hereto. The provisions
of this Article 7 shall not apply in those instances in which waiver of
subrogation would cause either party's insurance coverage to be voided or
otherwise made uncollectible.
Article 8 - Indemnification
Section 8.01. Sub-Tenant shall hold Landlord harmless from and defend Landlord
against any and all claims or liability for any injury or damage to any person
or property whatsoever: (a) occurring in, on, or about the Premises; and (b)
occurring in, on, or about the Building, when such injury or damage shall be
caused in part or in whole by the act, neglect, fault, or omission of and duty
with respect to the same, by Sub-Tenant, its agents, employees, or invitees.
Section 8.02. Landlord shall hold Sub-Tenant harmless from and defend Sub-Tenant
against any and all claims or liability for any injury or damage to any person
or property whatsoever occurring in, on, or about the Premises, when such injury
or damage shall be caused in part or in whole by the act, neglect, fault, or
omission of any duty with respect to the same, by Landlord, its agents,
employees or invitees.
Article 9 - Utilities and Services; Parkinq
Section 9.01. Landlord shall cause water and sewage service to be furnished to
the Premises for the use of Sub-Tenant. Sub-Tenant shall reimburse Landlord for
Sub-Tenant's Pro Rata Share (fifty percent (50%)) of the cost of such water and
sewage service as provided in Article 3 hereof. Sub-Tenant shall, at its sole
cost and expense, pay or cause to be paid all charges (including any deposits)
for gas, electricity, telephone or other services or utilities furnished to the
Premises or to Sub-Tenant with respect to its operation therein during the Term
to the extent that such utilities shall be separately metered and/or directly
billed to Sub-Tenant by the respective utilities. To the extent that any such
utilities are metered and/or billed to more than one Tenant (including
Sub-Tenant) Sub-Tenant shall pay its Pro Rata Share of such amounts.
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Section 9.02. Sub-Tenant shall have the right to park vehicles in accordance
with the parking requirements of the city or town in which the Premises are
located free of charge and on an unreserved basis, in that portion of the
Parking Area located adjacent to the Premises. Landlord may from time to time
establish reasonable rules and regulations for the Parking Area, and Sub-Tenant
agrees to observe the same upon being advised thereof. Any and all parking of
motor vehicles in said Parking Area shall be at the risk of the owner of the
same.
Article 10 - Premises "As Is"
Sub-Tenant accepts the Premises "as is" based upon Sub-Tenant's own
investigation with no representation from Landlord.
Article 11 - Repairs and Maintenance
Section 11.01. Subject to the provisions in this Sub-Lease requiring Sub-Tenant
to reimburse Landlord for Sub-Tenant's Pro Rata Share of the cost of such
repairs and maintenance and except as provided in Section 11.02, Landlord shall
cause Owner to do the following:
(a) Maintain, in good condition and repair during the Term all structural
components of the Property, including, without limitation, the foundation, roof,
exterior walls of the Building, and the plumbing, electrical, heating and
air-conditioning systems which are a part of and/or service the Premises except
for those owned by the Sub-Tenant;
(b) Maintain and keep clean all Common Areas, including the Parking Area,
remove snow therefrom with reasonable dispatch when required, provide adequate
lighting and drainage for the Parking Area during normal business hours, and
maintain all landscaping in a neat and orderly condition; and
(c) Cause trash and refuse to be removed daily or as often as is reasonably
necessary from the Building so as to avoid unreasonable accumulations of the
same.
Section 11.02. Sub-Tenant, as its sole expense, shall do the following:
(a) Make on a Pro Rata Share (fifty percent (50%)) all interior repairs to
the Premises during the Term which are necessary to keep the Premises in
substantially as good condition as on the Commencement Date, reasonable wear and
tear and damage by fire or other casualty excepted;
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(b) Be responsible on a Pro Rata Share (fifty percent (50%)) for providing
janitorial services to the Premises consistent with those provided in buildings
similar in quality to the Building.
Article 12 - Alterations
Sub-Tenant shall make no alterations, installations, additions or improvements
("additions") in or to the Premises in excess of $5,000, without the prior
written consent of Landlord. The additions shall be made only by contractors or
mechanics approved by Landlord at Sub-Tenant's expense. Sub-Tenant shall install
and maintain the interior decoration and appearance in a first class manner.
Notwithstanding the foregoing, Landlord may disapprove any additions or
decorative changes which in the opinion of Landlord's architect harm the
architectural integrity of the Building or conflict with the use of the rest of
the Building. All such permanent additions shall be deemed to be part of the
Building and to belong to Owner at the end of the Term.
Article 13 - Trade Fixtures
All equipment (other than exhaust vents and fans and heating, air conditioning
and ventilating system), business and office machines, furniture and other items
of personal property (except additions including without limitation walls,
floors, ceilings, wiring, plumbing, sewerage, and water pipes and lines) owned
or installed by Sub-Tenant in the Premises at its expense shall remain the
property of Sub-Tenant, (and any taxes thereon and risk of loss shall be borne
by Sub-Tenant, and may be removed by Sub-Tenant at any time provided that
Sub-Tenant shall at its expense, repair any damage, holes or openings caused or
occasioned by such removal whether by Sub-Tenant or Landlord as hereafter
provided and provided that during the Term such removal does not adversely
affect the appearance of the Premises). Any such personal property of the
Sub-Tenant left upon the Premises at the end of the Term may, at the election of
Landlord and after reasonable notice to Sub-Tenant, (a) be removed at
Sub-Tenant's expense and sold, stored or discarded; or (b) be deemed to have
been abandoned and belong to the Landlord.
Article 14 - Mechanic's Liens
Sub-Tenant shall keep the Property, the Building and the Premises free from and
promptly remove any mechanic's liens and indemnify, defend, and hold Landlord
harmless from any and all liability or expense of any kind and description which
may arise out of or be connected in any way with Sub-Tenant's additions.
Landlord's consent to the construction of additions shall not be deemed to be
such consent of the Landlord or acknowledgement that its estate is
9
holden for the payment for such additions as would bind the interest of the
Landlord under applicable mechanic's lien law.
Article 15 - Damage and Destruction
Section 15.01 If the Premises are damaged by fire, earthquake, act of God or the
elements, Landlord shall cause Owner to repair the same, subject to the
provisions of this Section hereinafter set forth and provided such repairs can
be made within ninety (90) days under applicable state, federal and city and
county laws and regulations. This Sub-Lease shall remain in full force and
effect, except that if there shall be damage to the Premises and such damage is
not the result of the negligence or willful misconduct of Sub-Tenant or
Sub-Tenant's agents, employees or invitees, a proportionate reduction in Rent
shall be allowed Sub-Tenant in the for such part of the Premises as shall be
rendered unusable by Sub-Tenant in the conduct of its business during the time
such part is so unusable. If such repairs cannot be made within ninety (90)
days, either Landlord or Sub-Tenant may, upon written notice to the other within
ninety (90) days after the date of such fire or other casualty, repair or
restore such damage, this Sub-Lease continuing in full force and effect but the
Rent to be proportionately reduced as hereinabove provided. If Landlord elects
not to make such repairs which cannot be made within ninety (90) days, then
either Landlord or (provided the damage affects the Premises or Common Areas
necessary to Sub-Tenant's occupancy) Sub-Tenant may, by written notice to the
other given not less than sixty (60) days and not more than ninety (90) days
after the date of such fire or other casualty, terminate this Sub-Lease as of
the date of such fire or other casualty.
Section 15.02. Landlord shall not be required to repair any injury or damage by
fire, earthquake, act of God or the elements, or to make any repairs or
replacements, of any improvements installed in the Premises by Sub-Tenant,
except for the portion of such improvements the cost of which was borne by
Landlord; and Sub-Tenant shall, at Sub-Tenant's sole cost and expense, repair
and restore its portion of such improvements.
Section 15.03. In the event the Premises or the Building is totally destroyed or
rendered wholly unusable for Sub-Tenant's Permitted Use, this Sub-Lease shall
terminate and Sub-Tenant shall only be liable for Rent up to the date of such
total destruction.
Article 16 - Condemnation
If the Premises and/or the Building, or any portion thereof, are taken or
condemned under the power of eminent domain, or by purchase in lieu of such
taking or condemnation, and as a result thereof the use and enjoyment of the
Premises by Sub-Tenant are
10
materially impaired, Sub-Tenant may, at its sole option, but without prejudice
to any rights and claims which it may otherwise have on account of such taking,
condemnation or sale, terminate this Sub-Lease upon written notice to Landlord.
If Sub-Tenant does not elect to terminate this Sub-Lease, the Rent reserved for
the remainder of the Term shall be reduced in proportion to the portion of the
Premises taken, condemned or sold, having due regard to the nature and extent of
the injury caused thereby to the Premises and to Sub-Tenant's Permitted Use
thereof, and such reduction in Rent shall be without prejudice to any rights and
claims which Sub-Tenant may otherwise have on account of such taking or
condemnation or sale. Landlord reserves to itself, and Sub-Tenant assigns to
Landlord, all rights to damages accruing on account of any taking under the
power of eminent domain or by reason or any act or any public or quasi-public
authority for which damages are payable. Sub-Tenant agrees to execute such
instruments of assignment as may be reasonably required by Landlord in any
proceeding, except it is agreed and understood, however, that Landlord does not
reserve to itself, and Sub-Tenant does not assign to Landlord, any damages
specifically payable for Sub-Tenant's trade fixtures, furniture, moving
expenses, and/or Sub-Tenant's leasehold improvements.
Article 17 - Environmental Provisions
Section 17.01. Sub-Tenant represents, warrants and covenants that it has
obtained, is in compliance with, and will continue to comply with all permits,
licenses and other authorizations which are required under all environmental
laws and regulations, including laws relating to emission, discharges, releases
or threatened releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment (including, without
limitation, air, surface water, groundwater, or land), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes, except to the extent failure to have
any such permit, license or authorization does not have a material adverse
effect on the financial condition, operations, prospects, or business of the
Sub-Tenant.
Section 17.02. Sub-Tenant shall comply with the requirements of all material
federal, state, and local environmental laws relating to the Premises; shall
immediately notify the Landlord in the event of any material spill, pollution or
contamination affecting the Premises from oil, friable asbestos, hazardous
waste, hazardous material, or other waste or material regulated or limited by
applicable federal, state, or local environmental law or regulation ("Hazardous
Material"); and shall immediately forward to the Landlord any notices relating
to such matters received from any governmental agency.
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Section 17.03. Sub-Tenant shall immediately contain and remove at its sole cost
and expense any Hazardous Material found on the Premises if caused by Sub-Tenant
or anyone acting under Sub-Tenant; such work must be done in compliance with
applicable laws.
Section 17.04. Sub-Tenant will indemnify, defend, and hold the Landlord harmless
from and against any claim, cost, damage (including without limitation
consequential damages), expense (including without limitation reasonable
attorneys' fees and expenses), loss, liability, or judgement now or hereafter
arising as a result of any claim for environmental cleanup costs, any resulting
damage to the environment and any other environmental claims against the
Sub-Tenant, the Landlord, or the Premises relating to any act or failure to act
by Sub-Tenant or anyone claiming under Sub-Tenant. The provisions of this
Section 17.04 shall continue in effect and shall survive (among other events)
any termination or expiration of this Sub-Lease.
Article 18 - Signs and Advertising
Sub-Tenant shall not place any sign on or around the Premises without the
advance written consent of Landlord. Signs identifying the Building or any
owners or Tenants therein shall not be deemed to be advertising.
Article 19 - Entry by Landlord
Landlord and its agents shall have the right to enter into and upon the Premises
at all reasonable times for the purpose of examining and exhibiting the same,
for making any necessary repairs or alterations thereto, for the purpose of
supplying any service, or building maintenance to be provided by Landlord
hereunder; provided however, that Landlord shall advise Sub-Tenant a reasonable
time in advance thereof, and, provided further, that the operations of
Sub-Tenant shall not be interfered with unreasonably thereby.
Article 20 - Assignment and Subletting
Section 20.01. Sub-Tenant will not assign, sublet, pledge, mortgage, or
otherwise transfer this Sub-Lease or the whole or any part of the Premises
without in each instance having first received the express written consent of
Landlord. In any case where Landlord shall consent to an assignment or
subletting, Sub-Tenant shall remain primarily liable for Sub-Tenant's
obligations hereunder. In the event that the Premises are sublet or this
Sub-Lease is assigned, Landlord shall be paid and have the benefit of any and
all rentals and payments in excess of the rental rates and other amounts
required to be paid by Sub-Tenant pursuant to this Sub-Lease. It shall be a
condition to the validity of any
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assignment or subletting that the terms of any sublease or assignment shall not
be more favorable than the terms of this Sub-Lease and shall not be more
favorable than the terms which Landlord is then offering for new rental space in
the Building or for existing rental space in the Building which will be coming
available. The transfer of a majority interest in the capital stock of any
corporate Sub-Tenant or a majority of the interest in any partnership
Sub-Tenant, however accomplished, and whether in a single transaction or in a
series of related or unrelated transactions, shall be deemed an assignment of
this Sub-Lease.
Section 20.02. If Sub-Tenant (which term for the purposes of this Section 20.02
shall mean the authorized representative of Sub-Tenant's estate in Bankruptcy)
assumes this Sub-Lease and proposes to assign the same pursuant to the
provisions of the Bankruptcy code, 11 U.S.C. 101 et seq., or any future statute
in amendment or in substitution thereof (the "Bankruptcy Code") to any person or
entity who shall have made a bona fide offer to accept an assignment of this
Sub-Lease on terms acceptable to the Sub-Tenant, then notice of such proposed
assignment, setting forth
(i) the name and address of such person or entity, (ii) all of the terms
and conditions of such offer, and (iii) adequate assurance to be provided
Landlord to assure such person's or entity's future performance under this
Sub-Lease, including, without limitation, the assurance referred to in
Section 365 (b) (3) of the Bankruptcy Code, shall be given to Landlord by
Sub-Tenant no later than twenty (20) days after receipt by the Sub-Tenant,
but in any event no later than ten (10) days prior to the date that
Sub-Tenant shall make application to a court of competent jurisdiction for
authority and approval to enter into such assignment and assumption.
Landlord shall thereupon have the prior right and option, to be exercised
by notice to Sub-Tenant at any time prior to the effective date of such
proposed assignment, to accept an assignment of this Sub-Lease upon the
same terms and conditions and for the same consideration, if any, as the
bona fide offer made by such person or entity, less any brokerage
commissions which may be payable out of the consideration to be paid by
such persons or entity for the assignment of this Sub-Lease.
In the event this Sub-Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, then any and all monies or other
consideration paid, payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Sub-Tenant
or of the estate of Sub-Tenant within the meaning of the Bankruptcy Code. Any
and all monies or other considerations constituting Landlord's
13
property under the preceding sentence not paid or delivered to Landlord shall be
held in trust for the benefit of Landlord and shall be promptly paid to or
turned over to Landlord.
Any person or entity to which this Sub-Lease is assigned, pursuant to the
provisions of the Bankruptcy Code, shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Sub-Lease on and after
the date of such assignment. Any such assignee shall, upon demand, execute and
deliver to Landlord an instrument confirming such assumption.
Article 21 - Subordination; Estoppel
Section 21.01. This Sub-Lease will be subject and subordinate to any mortgage of
the Premises now existing or hereafter executed by Owner or its successors and
assigns. Such subordination is automatic and is effective without any further
act of Sub-Tenant, but Sub-Tenant hereby agrees from time to time on request
from Landlord to execute and deliver any instruments that may be required by any
lender to confirm the subordination provided for herein. Any mortgagee may elect
that this Sub-Lease shall have priority over its mortgage, and upon notification
of such election by such mortgagee to Sub-Tenant, this Sub-Lease shall be deemed
to have priority over such mortgage whether this Sub-Lease is dated prior to or
subsequent to the date of such mortgage. Sub-Tenant hereby appoints Landlord,
with full power of substitution, as Sub-Tenant's attorney-in-fact (which
appointment shall be irrevocable and shall be deemed to be coupled with an
interest) to execute and deliver any such instrument for and in the name of
Sub-Tenant.
Section 21.02. Sub-Tenant, within ten (10) days after written request from
Landlord shall furnish a written certificate stating whether this Sub-Lease is
in full force and effect, if any amendments have been executed, if any default
exist by Landlord or by Sub-Tenant hereunder and the nature of any alleged
default, if Sub-Tenant is then claiming any offsets, counterclaims or defenses
to this Sub-Lease, and any other matter which may be reasonably requested.
Article 22 - Default
Section 22.01. If any of the following shall occur, Sub-Tenant shall be deemed
in default of this Sub-Lease: (a) if Sub-Tenant shall fail to pay any Rent or
other sum when and as the same becomes due and payable and such failure shall
continue for more than ten (10) days; (b) if Sub-Tenant shall fail to perform
any of the other duties required to be performed by Sub-Tenant under this
Sub-Lease and such failure shall continue for more than thirty (30) days after
receipt of written notice thereof from Landlord; provided, however, that if such
cannot reasonably be performed within such thirty (30) day period, Sub-Tenant
shall have such
14
additional time as is reasonably necessary to perform such duty; (c) if
Sub-Tenant shall make a general assignment for the benefit of creditors, admit
in writing its inability to pay its debts as they become due, file a petition in
bankruptcy, have an order of relief entered against it, or file or have filed
against Sub-Tenant a petition seeking any reorganization, receivership,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation.
Section 22.02. In the event of default, to the extent not prohibited by
applicable law it will be lawful for the Landlord thereupon, or at any time
thereafter, upon written notice of termination to Sub-Tenant, and with or
without process of law (forcibly if necessary) enter into and upon the Premises
or any part thereof in the name of the whole or mail a notice of termination
addressed to Sub-Tenant at the Premises, and repossess the same as of Landlord's
former estate and expel Sub-Tenant and those claiming through or under
Sub-Tenant and remove its and their effects (forcibly, if necessary) without
being deemed guilty of any manner of trespass and without prejudice to any
remedies which might otherwise be used for arrears of rent or prior breach of
covenant, and upon such entry or mailing as aforesaid this Sub-Lease shall
terminate, Sub-Tenant hereby waiving all statutory rights (including without
limitation rights of redemption, if any, to the extent such rights may be
lawfully waived) and Landlord, without notice to Sub-Tenant, may store Tenant's
effects, and those of any person claiming through or under Sub-Tenant at the
expense and risk of Sub-Tenant, and, if Landlord so elects, may sell such
effects at public auction or private sale and apply the next proceeds to the
payment of all sums due to Landlord from Sub-Tenant if any, and pay over the
balance, if any, to Sub-Tenant.
Section 22.03. Upon the termination of this Sub-Lease under any provision
contained in Section 22.01, Sub-Tenant shall nevertheless remain liable for all
Rent then due and payable hereunder as of the date of the termination of this
Sub-Lease, together with all damages due or sustained by Landlord prior to such
termination or arising as a result of events or conditions occurring or in
existence during the term hereof and prior to or after such termination, and all
reasonable costs, fees and expenses incurred by Landlord in pursuit of, or in
the collection of its remedies hereunder or under any law, or in leasing or
attempting to lease all or any portion of the Premises to others from time to
time (including, without limitation, all repossession costs, brokerage
commissions, reasonable attorney's fees in connection with the foregoing
matters, and all costs of such alterations, repairs, and decorations as
Landlord, in its reasonable judgement, considers necessary or advisable in
connection with such reletting)(all such rent, damages, costs, fees and expenses
being referred to herein as the "Termination Damages") and, in addition thereto,
additional damages (the "Liquidated Damages"), which, at the election of
Landlord, shall be either of the following:
15
(a) an amount or amounts equal to all Rent which, but for termination,
would have been payable to Landlord over the remainder of the Term, reduced by
the amount of Rent, if any, which the Landlord shall actually receive from time
to time during such period from others to whom the Premises may be rented from
time to time. The Landlord shall not be obligated to attempt to collect any
rental or other payment obligation from any other person renting all or any
portion of the Premises by litigation or otherwise. Such Liquidated Damages
shall be computed and payable in monthly installments, with interest on any
amount in arrears at the rate of two percent (2%) per annum in excess of the
Xxxxxxx Bank Prime Rate, in arrears, on the first day of each calendar month
following termination of the Sub-Lease and shall continue to become due and
payable in monthly installments until the date on which the Term would have
expired but for such termination; and any and all amounts due and payable
hereunder, including any amount in arrears, shall be a continuing liability of
Sub-Tenant thereafter, and interest thereon shall accrue at the rate of two
percent (2%) per annum in excess of the Xxxxxxx Bank Prime Rate, until
Sub-Tenant shall discharge same by payment to Landlord of the amount due, and
any suit or action brought from time to time to collect any such Liquidated
Damages for any month or months shall not in any manner prejudice the right of
Landlord to collect any Liquidated Damages for any subsequent month or months by
a similar proceeding; or
(b) an amount equal to the present value (as of the date of such
termination) of all Rent which, but for termination of this Sub-Lease, would
have become due during the remainder of the Term, reduced by an amount equal to
the fair rental value of the Premises over the remainder of the Term, as
determined by an independent real estate appraiser named by Landlord, in which
case such Liquidated Damages shall be payable to Landlord in one lump sum on
demand made by Landlord at any time and shall bear interest at the rate of two
percent (2%) per annum in excess of the Xxxxxxx Bank Prime Rate from the date of
termination until paid. For purposes of this clause (ii), present value shall be
computed by the application of a discount rate equal to the discount rate in
effect at the Federal Reserve Bank nearest to the location of the Premises as of
the date of determination.
Section 22.04. In addition, if this Sub-Lease is terminated, Landlord may, but
shall have no obligation to, relet the Premises or any part thereof, alone or
together with other premises, for such term or terms (which may be greater or
less than the period which would have constituted the balance of the Term) and
on such terms and conditions (which may include concessions for free rent and
alterations of the Premises) as Landlord, in its uncontrolled discretion, may
determine, but Landlord shall not be liable for, nor shall Sub-Tenant's
obligations hereunder be diminished by reason of, failure by Landlord to relet
the Premises or any failure by Landlord to collect any rent due upon such
reletting, and Sub-
16
Tenant, to the extent Sub-Tenant may lawfully do so, hereby waives all right to
require Landlord to relet the Premises.
Section 22.05. Nothing contained in this Sub-Lease shall, however, limit or
prejudice the right of Landlord to prove for and obtain in proceedings under any
federal or state laws relating to bankruptcy or insolvency or reorganization or
arrangement by reason of the termination of this Sub-Lease, 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, the damages are to be proved, whether or
not the amount be greater than the amount of the loss or damages referred to
above.
Section 22.06. Any and all rights and remedies which Landlord may have under
this Sub-Lease, and at law and equity, shall be cumulative and shall not be
deemed inconsistent with each other, and any two or more of all such rights and
remedies may be exercised at the same time insofar as permitted by law.
Section 22.07. The waiver by either party of any default shall not be deemed to
be a waiver of any subsequent default under the same, or under any other term,
covenant or condition of this Sub-Lease. The subsequent acceptance of any Rent
by Landlord shall not be deemed to be a waiver of any preceding default by
Sub-Tenant under any term, covenant or condition of this Sub-Lease, other than
the failure of Sub-Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding default at the time of acceptance of such
Rent.
Article 23 - Return of Premises; Holdover
Section 23.01. At the expiration or other termination of the Term, Sub-Tenant
will remove from the Premises its property and that of all claiming under it and
will peaceably yield up to Landlord the Premises in as good condition in all
respects as the same were at the commencement of this Sub-Lease, except for the
ordinary wear and tear, damage by the elements, by any exercise of the right of
eminent domain or by any public or other authority, or damage not caused by
Sub-Tenant and with respect to which Sub-Tenant is not required to maintain
insurance hereunder.
Section 23.02. If Sub-Tenant remains in possession of the Premises after the
expiration of the Term, said tenancy shall be month-to-month pursuant to Section
23.02, and should Landlord at any time decline to accept the Rent at the rate
specified herein, Sub-Tenant's holding over thereafter will be deemed to be as a
Tenant-at-sufferance.
Article 24 - Notices
All notices which are required to be given by either party hereunder shall be in
writing, sent by certified or registered
17
mail, postage prepaid, return receipt requested, and addressed to the parties at
the following addresses:
LANDLORD: Xxxx Hospitality, Inc. III
0000 Xxxxxxxxx Xxxxxxxxx X.X.
Xxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, President
(000) 000-0000
SUB-TENANT: Janus Industries, Inc.
0000 Xxxxxxxxx Xxxxxxxxx X.X.
Xxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx, President
(000) 000-0000
or to such other addresses and to such other persons as the parties may from
time to time designate in writing. The time of giving of any such notice shall
be deemed to be three (3) days after such notice is mailed.
Article 25 - Broker's Commissions
The parties represent no brokers were involved in this transaction.
Article 26 - Limitation of Landlord's Liability
Sub-Tenant shall neither assert nor seek to enforce any claim for breach of this
Sub-Lease against any of Landlord's assets other than Landlord's interest in the
Property and in the rents, issues and profits thereof. No partner, trustee,
stockholder, officer, director, employee or beneficiary of Landlord shall be
personally liable under the Sub-Lease, and Sub-Tenant shall look solely to
Landlord's interest as the landlord in the Property in pursuit of its remedies
upon an event of default hereunder so that the general assets of Landlord and of
the individual partners, trustees, stockholders, officers, employees or
beneficiaries of the Landlord shall not be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Sub-Tenant. In the
event Landlord sells or otherwise transfers its interest in the Property (or a
part thereof which includes the Premises), then from and after such sale or
other transfer Landlord shall be released from liability hereunder and
Sub-Tenant shall look solely to the interests in the Property of Landlord's
transferee for the performance of all of the obligations of Landlord hereunder.
18
Article 27 - Rules and Regulations
Sub-Tenant shall abide by the rules and regulations from time to time
established by Landlord with respect to the Building and the Property. In the
event that there shall be conflict between such rules and regulations and the
provisions of this Sub-Lease, the provisions of this Sub-Lease shall control.
Article 28 - Recording of Sub-Lease
The parties hereto agree that this Sub-Lease shall not be recorded, but the
Landlord and Sub-Tenant hereby agree upon request of either party to enter into
a notice of lease in recordable form, setting forth the names of the parties
describing the Premises, specifying the Term, and such other provisions, except
rental provisions, with respect to the Sub-Lease as will put on notice any third
party of the existence of this Sub-Lease.
Article 29 - Miscellaneous
Section 29.01. The words "Landlord" and "Sub-Tenant", as used herein, shall
include the plural as well as the singular. Words used in the masculine gender
herein shall include feminine and neuter forms thereof.
Section 29.02. The covenants and conditions contained herein shall be binding
upon and inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties hereto.
Section 29.03. The article headings in this Sub-Lease are for convenience only,
and shall not limit or otherwise affect the meaning of any provisions hereof.
Section 29.04. Time is of the essence in each and every provision of this
Sub-Lease.
Section 29.05. The invalidity or unenforceability of any provision of this
Sub-Lease shall not affect any other provision hereof.
Section 29.06. Should either party hereto commence an action against the other
to enforce any obligation under this Sub-Lease, the prevailing party shall be
entitled to recover reasonable attorneys' fees and expenses from the other.
Section 29.07. This Sub-Lease shall be construed and enforced in accordance with
the laws of the State of Florida.
Section 29.08. This Sub-Lease constitutes the entire agreement between the
parties hereto and may not be modified in any manner other than by written
agreement, executed by all of the parties
19
hereto or their successors in interest. No prior understanding or representation
of any kind made before the execution of this Sub-Lease shall be binding upon
either party unless incorporated herein.
IN WITNESS WHEREOF, the parties hereto have executed this Sub-Lease as of
the date first set forth above:
LANDLORD: Xxxx Hospitality, Inc. III,
an Ohio corporation
By: /s/ Xxxxx X. Xxxx
-------------------------
Xxxxx X. Xxxx, President
SUB-TENANT: Janus Industries, Inc.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Xxxxx Xxxxxx, President
20
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this day of __________, 1997
by Xxxxx X. Xxxx, as President of Xxxx Hospitality, Inc. III, an Ohio
corporation. He is personally known to me or has produced a Florida driver's
license as identification and did take an oath.
Notary Public:
Signature:_________________________
Print Name:________________________
State of______________ at Large
(Notarial Seal) My Commission expires:
STATE OF NEW JERSEY )
) SS:
COUNTY OF ESSEX )
The foregoing instrument was acknowledged before me this 17th day June, 1997 by
Xxxxx Xxxxxx, as President of Janus Industries, Inc., a Delaware corporation. He
is personally known to me or has produced a driver's license as identification
and did take an oath.
Notary Public:
Signature: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
------------------------
State of NJ at Large
---------
(Notarial Seal) My Commission expires: 1-23-2000
XXXXXXX X. XXXXXXXX
Notary Public of New Jersey
My Commission Expires Jan. 23, 2000
21
EXHIBIT A
[FLOOR PLAN OMITTED]
