LEASE
THIS LEASE made as of the Lease Date by and between Landlord and Tenant.
W I T N E S S E T H:
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ARTICLE I
TERMS/PREMISES
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Section 1.01 Terms.
Landlord Name
and Address: Xxxxxxxxxx Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
Tenant Name
and Address: Imagica Entertainment, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx
Tenant Trade Name: Imagica Entertainment
Permitted Use: Warehouse/Fabrication of banners for promotional events
Tenant Tax I.D.
Number 00-0000000
Premises: 0000 X.X. 00xx Xxxxxx, Xxxxx Xxxxxxx, as more particularly
described on Exhibit A attached hereto
Lease Date: Commencement Date
Commencement Date: Effective Date
Rental
Commencement Date: The earlier of (a) the date the tenant shall open for
business or obtain a Certificate of Occupancy or business
license (b) after receipt of construction permit, or (c)
after the date of this lease (d) 90 days from lease signing.
Lease Expiration
Date: December 31, 2014, subject to earlier termination and
Tenant's option to extend the term as set out below
Rent: See Schedule "A" attached
Initial Security
Deposit $7,000.00
Broker None
Section 1.02 Premises.
In consideration of the rents, covenants and agreements made by Tenant,
Landlord leases to Tenant the Premises.
Section 1.03 Terms and Commencement.
(a) The term of this Lease shall commence on the Commencement Date. The
term of this Lease shall end on the Lease Expiration Date without any further
notice.
ARTICLE II
RENT
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Section 2.01 Payment of Rent.
Tenant shall pay to Landlord, Minimum Rent in equal monthly installments,
in advance on the first day of each and every calendar month as provided in
Schedule "A". Tenant hereby covenants and agrees to pay to Landlord "Minimum
Rent", and other charges, as herein provided which are deemed rent hereunder and
collectively herein called "Rent", without any prior demand, deduction or setoff
whatsoever. Rent shall be paid to the Landlord, at Landlord's Address, or at
such other place or person as may be designated in writing from time to time by
Landlord. Minimum Rent shall adjust as set out herein on each anniversary of the
Rental Commencement Date.
Any payment not received by Landlord by the date it is due shall be
considered late and a default of the terms hereof.
If Rent is not received by Landlord by ten (10) days after it is due, it
shall be subject to an automatic late charge of 10% of such Rent. After default,
all such charges, along with the late Rent, shall be paid in the form of a
cashier's check, certified check or money order. Acceptance of the Rent or any
portion thereof without the automatic late charge shall not constitute a waiver
of such charges. The payments set out herein are compensation to the Landlord
for risk and effort relating to failure to make timely payment by Tenant and are
not interest. In addition to the payments set out herein any amount due from
Tenant to Landlord hereunder which is not paid when due shall bear interest at
the highest rate of interest allowed by law (but not to exceed eighteen percent
per annum) from the date due until paid unless otherwise specifically provided
herein, but the payment of such interest shall not excuse or cure any default by
Tenant under this Lease.
If Tenant's Rent check is returned for any reason, any applicable late
charge shall continue to accrue and Tenant shall be in default of its
obligations hereunder. Landlord's attempt to redeposit a returned check shall
not be a waiver of the default resulting from the returned check and payment
shall be deemed received when the check is accepted for payment. Returned checks
must be redeemed by cashier's check or money order. In the event more than two
(2) Rent checks are returned, in any 12 month period, then the next 12 Rent
payments must be paid by cashier's check, certified check or money order.
The first rental payment date shall be due on the Rental Commencement Date.
If the Rental Commencement Date is a day other than the first day of the
calendar month, then Tenant shall pay on the first payment date a pro rata
portion of the fixed Minimum Rent and Additional Rent prorated on per diem basis
with respect to the fractional calendar month.
Section 2.02 Security Deposit.
Landlord acknowledges receipt from Tenant of the Initial Security Deposit.
Tenant agrees to execute such documents as reasonably requested by Landlord
to perfect such interest. Tenant shall deliver to Landlord on or before the
Rental Commencement Date a Security Deposit in the amount of $300,000 (the
"Additional Security Deposit"). The Initial Security Deposit and any additional
Security Deposit delivered to Landlord hereunder shall, without interest, be
refunded to Tenant after termination of this Lease, Landlord, at its sole
option, may apply all or part of such Security Deposit to cure any default.
Tenant shall promptly restore any deficiency in the Security Deposit. Tenant
waives the benefit of any law requiring the Security Deposit to be held in
escrow or in trust, and the Security Deposit may be commingled with Landlord's
other fund.
Notwithstanding anything to the contrary contained herein Tenant shall not
be required to deliver to Landlord the Additional Security Deposit if on or
before the Rental Commencement Date, Tenant delivers to Landlord evidence that
it has spent in excess of $300,000 on Building Improvements as hereinafter
defined and that all Building Improvements have been paid for in full. Land1ord
acknowledges a portion of $300,000 will be paid by Landlords funds pursuant to a
separate agreement between Landlord and Tenant.
Provided, Tenant shall have made all payments and performed all its
obligations as set out herein, the Security Deposit, without interest, shall be
refunded to Tenant after termination of this Lease. Landlord, at its sole
option, may apply all or part of such Security Deposit to cure any default.
Tenant shall promptly restore any deficiency in the Security Deposit. Tenant
waives the benefit of any law requiring the Security Deposit to be held in
escrow or in trust, and the Security Deposit may be commingled with Landlord's
other fund.
Section 2.03 Rent.
All other amounts due Landlord by Tenant under this Lease shall be deemed
Rent hereunder including without limitation any monies paid or any expenses
incurred by Landlord in correction of any violation or any covenant of Tenant,
the amounts paid or incurred shall be considered additional rent payable by
Tenant with the first installment of rent thereafter to become due and payable,
and may be collected or enforced as provided in this Lease.
Section 2.04 Sales Taxes.
Tenant shall pay to Landlord or to the appropriate agency any and all
sales, excise, transfer and other taxes (not including, however, Landlord's
income taxes) levied, imposed or assessed by any taxing authority upon this
Lease or Rent payable hereunder.
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ARTICLE III
TAXES
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Section 3.01. Personal Property Taxes.
Tenant shall pay all personal property taxes levied by any federal, state,
municipal or other authority ("governmental Authority") with respect to its
property located on the Premises.
Section 3.02. Ad Valorem Taxes; Charges and Assessments; and Utility Charges.
(a) In addition to the Minimum Rent referred to above, Tenant shall pay
(and shall provide to Landlord written evidence of such payment) throughout the
term of this Lease, as additional rent hereunder, before any fine, penalty,
interest or cost may be added and taking full advantage of all discounts
theretofore the non-payment thereof or on such earlier date as may be required
by the holder of any mortgage secured by the Premises, but in any event by the
due date thereof:
(i) all ad valorem, levies, taxes (to the extent installments are
allocable to the period during the term hereof), (to the extent
such payments are required to be made in lieu of taxes),
assessments, liens, licenses and permit fees, and charges for
public utilities imposed, assessed or charged on or with respect
to Landlord or the Premises by any Governmental authority or
under any law, ordinance, or regulation of any governmental
Authority ("Law"); and
(ii) any assessments, charges, levies or other impositions imposed,
assessed or charged on or with respect to Landlord or the
Premises pursuant to the terms and provisions of any agreement,
covenant, easement, restriction, declaration binding or effecting
the Premises, or otherwise required by Governmental Authority
(all such terms and provisions referred to in this subsection
(ii) being herein collectively called "recorded agreements");
provided that Tenant shall not be obligated to perform under any
agreements entered into by Landlord from and after the date
hereof.
(iii)All other charges, imports or burdens of whatever kind and
nature under any Governmental or public power or authority
whatsoever for services rendered to Tenant during the term hereof
("Utility Charges"), if, however, at any time during the term
hereof, the methods of taxation prevailing at the Commencement
Date shall be altered so that, by virtue of new legislation which
either specifically provides or demonstrates by its legislative
history that the taxes or fees therein levied, assessed or
imposed are in lieu of or a substitute for the whole or any part
of the taxes then levied, assessed or imposed on real estate and
the improvements thereon, or there shall be levied, assessed and
imposed (a) a tax, wholly or partially as a capital levy or
otherwise, on the rents received therefrom, (b) a tax measured by
or based in whole or in part upon the Premises and imposed upon
Landlord, or (c) a tax or license fee measured by the rent
payable to Landlord hereunder, then to the extent that Landlord
shall be required to pay any such tax which is attributable to
the Premises, Tenant shall pay and discharge the amount thereof
related to the Premises.
All of the items specified in clauses (i), (ii) and (iii) of the
preceding sentence are hereinafter collectively referred to as
"Taxes".
(b) Notwithstanding the provisions of the previous paragraph of this
Article, the term "Taxes" and the obligation of Tenant to pay Taxes, shall not
include any municipal, state or federal taxes assessed against inheritance, or
transfer taxes upon Landlord, or any franchise, taxes imposed upon any
corporation, or any net income, net profits or net revenue tax, assessment or
charge imposed upon the net rent received by Landlord under this Lease.
(c) All Taxes that become payable for the first and last tax years during
the term shall be apportioned between Landlord and the Tenant in such a manner
that Tenant shall only be obligated to pay Taxes applicable to the term. In the
initial year of the Lease Tenant shall be responsible for all taxes relating to
the period from and after the execution of this Lease.
(d) If any holder of Mortgage on the Premises requires monthly escrow of
Taxes, Tenant shall make such payments on behalf of Landlord to such mortgage
holder upon notice of its address and shall receive a credit for amounts paid to
such mortgage holder against amount due under Section 3.02(a).
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ARTICLE 1V
IMPROVEMENTS, REPAIRS AND ALTERATIONS
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Section 4.01 Tenant's Work.
Landlord shall not be responsible for any improvements to the Premises.
Tenant takes the Premises in "AS IS" condition. Tenant, at its own cost and
expense, shall be responsible for all improvements necessary to prepare the
Premises to open for its Permitted Use including, without limitation, trade
fixtures, furnishing and equipment, connection and submetering of all utilities
to the space including without limitation water, as well as any improvements
Tenant is otherwise authorized to make during the term of the Lease
(collectively "Tenant's Work"). All Tenant's Work shall be diligently performed
in a good and workmanlike fashion. Before any such improvements are made, Tenant
shall submit its plans, drawings, specifications, the name of its general
contractor together with its insurance coverage for Landlord's approval which
shall not be unreasonably withheld. Tenant shall be responsible for the
reasonable cost of professionals retained by Landlord to review said plans,
drawings and specifications. Landlord shall not xxxx up the cost of said review
by professionals and the cost of such review shall not exceed $2,500.00. Tenant
may not do any work, as part of Tenant's Work which requires permits without
Landlord's approval. If Tenant's Work is not completed as required herein,
subject to Notice and Cure provisions as provided herein, Landlord may enter
upon the Premises and do what is required to complete Tenant's Work, including
without limitation, proceeding with Tenant's contracts, contractors and
equipment. Landlord shall have no liability to Tenant for any loss or damage
resulting from such action and Tenant shall pay to Landlord upon demand any
expense incurred in taking such action. Any work done by Landlord in the
Premises on the Tenant's behalf shall upon Landlord's request, be paid for by
the Tenant in advance.
Section 4.02 Plan for Tenant Work Schedule
Within thirty (30) days after the Effective Date, Tenant, at Tenant's sole
cost and expense shall cause to be prepared and delivered to Landlord for
Landlord's approval three (3) copies of detailed plans of the interior of the
Premises showing all improvements Tenant intends to make. The Landlord shall
promptly notify the Tenant of the respects, if any, in which the plans are
disapproved and Landlord will xxxx its comments thereon. Tenant shall, within
twenty (20) days after Landlord's request, at its sole cost and expense, make
the revisions necessary to incorporate Landlords's comments and deliver the
revised plans to Landlord for Landlord's approval. The Landlord's approval shall
be evidenced by the Landlord causing one (1) set of the plans to be initialed on
its behalf and returned to Tenant. After the Landlord has approved the plans,
then, within twenty (20) days thereafter, at the Tenant's sole cost and expense,
Tenant shall cause to be prepared and delivered to Landlord, four (4) sets of
working drawings and specifications (the "working drawings") prepared by a
registered and licensed architect approved by the Landlord indicating the
specific requirements of Tenant's space. The Landlord shall promptly notify
Tenant of the respects, if any, in which the working drawings fail to conform to
the approved preliminary plans or are otherwise unacceptable and Tenant shall
promptly make any revisions necessary to correct such matters and obtain
Landlord's approval. The Landlord's approval shall be evidenced by the Landlord
causing one (1) set of the working drawings to be initialed on its behalf and
returned to Tenant.
After Landlord's approval of the working drawings, no material changes
shall be made therein except with the prior written consent of Landlord. All
construction work necessitated by any change shall be performed at the expense
of Tenant. As part of the consideration to induce Landlord to enter into this
Lease but not a requirement of Landlord or Tenant under this Lease, Tenant
covenants and represents that Tenant's Work for base building which includes
interior and exterior improvements, electrical, mechanical and plumbing work
exclusive of trade fixtures, equipment, millwork and signage (the base building
work excluding the items set out being sometimes referred to herein as the
"Building Improvements") shall be not less than $300,000 which shall be free of
all liens and third party financing which relates to or can attach to the
Premises. Other then trade fixtures, all Building Improvements and other
improvements placed in the Premises shall upon installation belong to Landlord.
Tenant shall provide Landlord with evidence of such expenditures and that the
Building Improvements have been fully paid for. For purposes of this section
material shall be defined as any change which requires approval of the building
department, decreases of the cost of the work to be performed or changes the
dimension or esthetics of the premises.
Tenant's general contractor shall be subject to Landlord's approval and shall
provide a completion bond for all work to be performed.
Contemporaneous with the execution of this Lease, Landlord, Tenant and Advance
Homestead Title, Inc. shall enter into an Escrow Agreement in the form attached
hereto as Exhibit "B" and Tenant shall contemporaneously fund such Escrow.
A default under the Escrow Agreement shall be a default hereunder, pursuant to
the terms of the Escrow Agreement Landlord will make a contribution to the cost
of Tenants's work. Tenant agrees that if Tenant defaults in its obligations
under this Lease, that in addition to any other damages provided for herein the
amount of Landlord's contribution shall be paid to Tenant.
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Section 4.03 Landlord's Duty to Repair.
None. Landlord shall not be responsible to keep or maintain any portion of
the Premises. It is the intention of the parties that Tenant shall have full and
complete responsibility for maintenance and repair of the Premises. Landlord
shall not be called upon to make any other improvements or repairs of any kind
upon the Premises and appurtenances.
Section 4.04 Tenant's Duty to Repair.
Tenant shall keep and maintain in good order, condition and repair
(including any such replacement and restoration as is required for that purpose)
the Premises and every part thereof and any and all appurtenances thereto
wherever located ("Repairs"), including, without limitation, the roof, structure
and HVAC system and any sidewalks, parking areas, curbs and access ways upon or
adjoining the premises, and keep them in good condition and repair and in
compliance with all of the terms and provisions of all laws and any recorded
agreements, and promptly at Tenant's own cost and expense make all repairs
necessary to maintain such good condition, repair and compliance, whether such
repairs be interior or exterior, structural or non-structural, ordinary or
extraordinary, foreseen or unforeseen. The term "repairs" shall include
replacements and renewals when necessary to maintain the Premises in as good
condition and repair as of the date of completion of Tenant's Work and in
compliance with all laws and recorded agreement, and all such repairs made by
Tenant shall be of good quality and usefulness equal or greater than existing
equipment when installed. Tenant shall keep and maintain all portions of the
Premises in a commercially reasonable manner, in a clean and orderly condition,
free of accumulation of dirt, rubbish, snow, ice and water.
Section 4.05 Alterations.
Other than Repairs, Tenant's Work and the installation of unattached trade
fixtures and furniture, Tenant shall not make any alteration of, or addition or
improvement (collectively "Alterations") to the Premises without obtaining the
Landlord's prior written consent.
Section 4.06 Mechanic's Liens.
All Alterations, Repairs, and Tenant's Work (hereinafter collectively
"Improvements") shall become the property of the Landlord upon installation and
shall not be removed by Tenant unless otherwise required to do so.
No Improvements performed by Tenant pursuant to this Lease, shall be deemed
to be required by or for the immediate use and benefit of Landlord. No Notice of
Commencement, mechanic's or other lien shall be allowed against the estate of
Landlord by reason of any consent given by Landlord to Tenant to make any
Improvements. Tenant shall pay promptly all persons furnishing labor or
materials with respect to any Improvements. In the event any Notice of
Commencement, mechanic's or other lien shall at any time be filed against any
portion of the Premises by reason of work, labor, services or materials
performed or furnished, or alleged to have been performed or furnished, to
Tenant or to anyone holding the Premises through or under Tenant, Tenant shall
immediately cause the same to be discharged of record or bonded to the
satisfaction of Landlord. If Tenant shall fail to cause such lien to be
discharged or bonded immediately after being notified of the filing thereof,
then, in addition to any other right or remedy of Landlord, Landlord may bond or
discharge the same by paying the amount claimed to be due, and the amount so
paid by Landlord including reasonable attorney's fees incurred by Landlord
either in defending against such lien or in procuring the bonding or discharge
of such lien, together with interest thereon, shall be due and payable by Tenant
to Landlord.
ARTICLE V
CONDUCT OF BUSINESS BY TENANT
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Section 5.01 Operations.
Tenant shall conduct its business at all times in a first class and
business like manner. The Premises shall be used and occupied by Tenant solely
for the Permitted Use and for no other use. Tenant will conduct its business
under Tenant's Trade Name and no other name. Landlord acknowledges Tenant does
business under multiple fictitious names and consents to the use of such names
provided Tenant remains unchanged and Landlord is notified in advance of such
names. Landlord acknowledges Tenant has advised Landlord of its use of the
following names: Banner Barn, IMEA.
Tenant shall not violate and shall comply with all laws, ordinances, rules
and regulations of all governmental authorities having jurisdiction over the
Premises, and with such standards established and recommendations, made from
time-to-time or requirements of all carriers of insurance on the Premises and
any Board of Underwriters, Rating Bureau or similar body standards which are
applicable to the Premises or the use and occupancy thereof by Tenant. Tenant
will not allow the Premises to be used for any illegal or immoral purpose.
Tenant shall, at Tenant's sole cost and expense, make all changes to the
Premises which are or hereafter may be required in order to comply with the
foregoing. Tenant shall employ, at Tenant's sole cost and expense, such pest
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extermination at such times as is necessary to keep the Premises free from pests
and vermin. Tenant shall not commit or suffer to be committed any waste upon the
Premises. Tenant shall not allow or permit any occurrence which constitutes a
nuisance, or otherwise interferes with the safety, comfort or convenience of
Landlord, or anyone lawfully using the Premises. Tenant shall have no claim
against Landlord for any damages nor shall any of Tenant's obligations hereunder
be affected should the use and occupancy of the Premises for the Permitted Use
be prohibited or impaired by reason of act of any governmental authority.
Section 5.02 Utilities.
Tenant shall be solely responsible for all utilities used or consumed in
the Premises.
Section 5.03 Increased Cost of Insurance.
Tenant will not use or occupy the Premises or do or permit anything to be
done which will violate the provisions of any casualty, liability or other
insurance carried by Landlord or will prevent Landlord from obtaining such
insurance with carriers acceptable to Landlord. If Tenant shall use or occupy
the Premises or do or permit anything to be done which increases the cost, of
any casualty, liability or other insurance coverage carried by Landlord, the
Tenant shall pay the cost of any such increase in premiums on demand.
Section 5.04 Signs.
All signs shall comply with applicable ordinances or other governmental
restrictions. The determination of such governmental restrictions and the prompt
compliance therewith shall be the responsibility of the Tenant. All signs of
Tenant shall be in good taste and shall conform to the standards of design
motif, decor and all other criteria from time-to-time established by Landlord
for the Premises.
Section 5.05 Surrender.
On the Lease Expiration Date, Tenant shall surrender all keys to the
Premises to Landlord and shall deliver the Premises clean and neat and in the
same condition and repair which they are required to be kept by Tenant
throughout the term hereof, except to the extent Tenant is required by Landlord
or is permitted to and does elect to remove any Improvements. Prior to the
expiration of the lease term, Tenant shall remove all its trade fixtures from
the Premises and repair any damage to the Premises caused by removal of trade
fixtures or Improvements required or permitted to be removed hereunder. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of the lease term. Any items remaining in the Premises on the
Lease Expiration Date shall be deemed abandoned for all purposes and shall
become the property of Landlord and the latter may dispose of the same without
liability of any type or nature.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
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Section 6.01 Indemnification.
Tenant indemnifies Landlord and saves Landlord harmless from and against
any and all claims, actions, damages, liability and expense (including but not
limited to attorneys' fees and disbursements) in connection with the loss of
life, personal injury or damage to property or business arising from, related
to, or in connection with the occupancy or use of the Premises.
Section 6.02 Landlord Not Responsible for Acts of Others.
Landlord shall not be responsible or liable to Tenant, or to those claiming
by, through or under Tenant, for any loss or damage which may be occasioned by
or through the acts or omissions of persons occupying or using any other part of
the Premises, or otherwise, or for any loss or damage resulting to Tenant, or
those claiming by, through or under Tenant, or its or heir property, from any
defect in the construction or maintenance of the Premises, the Premises or any
utility line serving the Premises. To the maximum extent permitted by law,
Tenant agrees to use and occupy the Premises, at Tenant's own risk.
Section 6.03 Required Insurance.
(a) At all times after the execution of this Lease, Tenant shall carry and
maintain at Tenant's sole cost and expense:
(i) Comprehensive public liability insurance with respect to the
Premises and the sidewalks immediately adjacent thereto with
minimum limits of Two Million Dollars ($2,000,000) on account of
personal injuries to or death per occurrence; and comprehensive
property damage insurance with minimum limits of Two Million
Dollars ($2,000,000) per occurrence.
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(ii) Fire insurance, with such extended coverage endorsements
including but not limited to, vandalism, malicious mischief,
sprinkler leakage, water damage, plate and other glass coverage,
and other endorsements as Landlord may from time-to-time
reasonably require, covering all of Tenant's stock in trade
Improvements and Signs to the extent of at least one hundred
percent (100%) of their replacement cost.
(iii) Business Interruption Insurance for not less then one (1) year.
(iv) If and to the extent required by law, workmen's compensation or
similar insurance in form and amounts required by law.
(v) From the inception of any construction, the Tenant will cause
"builder's risk" insurance policies to be written, in compliance
with the provisions of this Article
(vi) Flood insurance if required.
Landlord may increase amount or type of insurance to amounts or types generally
required by Landlord's of similar tenant's in the area.
(b) The company or companies writing any insurance which Tenant is required
to carry and maintain as well as the form of such insurance shall at all times
be subject to Landlord's insurance requirements and to Landlord's approval. Any
such company or companies shall be licensed to do business where the Premises is
located. Such insurance shall name Landlord and/or its designee as additional
insured and contain a provision by which the insurer agrees that such policy
shall not be canceled except after thirty (30) day's written notice to the
additional insured(s). Promptly upon commencement of Tenant's obligation to
procure the same, Tenant shall deposit with Landlord evidence that the insurance
required to be maintained by Tenant hereunder is in full force and effect. If
Tenant shall fail to perform any of its obligations with regard to obtaining or
evidencing its obtaining insurance, Landlord may immediately perform the same
and the cost of same shall be payable upon Landlord's demand.
Section 6.04 No Concurrent Insurance.
Tenant shall not take out separate insurance on the Premises concurrent in
form or contributing, in the event of loss, with that required to be furnished
by Tenant, or increase the amounts of any existing insurance by securing an
additional policy or additional policies without naming Landlord and all other
persons and entities then required to be named as additional insured pursuant
hereto as additional insured parties thereunder.
Section 6.05 Waiver of Subrogation.
Each party agrees that, in the event that the contents of the Premises or
any other property of either party shall be damaged or destroyed by fire or
other insured casualty, the rights, if any, of one party, against the other
party or its principals, agents, servants or employees with respect to such
damage or destruction are waived; and that, if available, all policies of fire
and/or extended coverage or other insurance covering the property of each party,
shall contain a clause or endorsement providing in substance that the insurance
shall not be prejudiced if the insured have waived right or recovery from any
person or persons prior to the time of loss or damage, if any.
ARTICLE VII
EMINENT DOMAIN/CASUALTY
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Section 7.01 Eminent Domain
(a)(i) In the event of a taking by any public or quasi-public authority
under the power of eminent domain, condemnation or expropriation or in
the event of a conveyance in lieu thereof (which events are herein
collectively referred to as a "Taking") of the whole or substantially
all of the Premises, then this Lease shall terminate as of the date of
such Taking or such earlier date as Landlord notifies Tenant. Landlord
shall be entitled to receive all compensation from any such authority.
A. In the event of a Taking of less than substantially all of the
Premises this Lease shall continue in full force and effect
without limitation or abatement except as specifically provided
herein.
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(ii) In the event less than substantially all of the Premises but more then
twenty percent (20%) or more of the parking or the building on the
Premises shall be taken by public authority under the power of eminent
domain, Landlord or Tenant shall have the option to terminate this
Lease by written notice within fifteen (15) days of such taking.
B. In the event of a partial taking of less then twenty percent
(20%) of the parking or the building on the Premises, or any
other taking where this Lease is not terminated, this Lease shall
continue in effect as to the remainder of the Premises, and if
the actual space within the building on the Premises is
decreased, then the monthly rental shall be proportionately
decreased.
(b) Tenant hereby irrevocably assigns to Landlord any award, compensation
to which Tenant may become entitled by reason of Tenant's interest in the
Premises if the use, occupancy or title of the Premises or any part thereof, is
taken, requisitioned or sold in, by or on account of any actual or threatened
eminent domain proceeding or other action by any person or entity having the
power of eminent domain ("Condemnation")
All awards, compensations on account of any Condemnation are herein collectively
called "Compensation" Landlord may appear in any such proceeding or action to
negotiate, prosecute and adjust any claim for any compensation and Landlord
shall collect any such Compensation. Tenant shall not be entitled to participate
in any such proceeding, action, negotiation, prosecution or adjustment.
Notwithstanding anything to the contrary contained in this Section 7.01, if
permissible under applicable law, any separate compensation made to Tenant for
its moving and relocation expenses, anticipated loss of business profits, loss
of goodwill or equipment and other severable property paid for by Tenant and
which are not part of the Premises, shall be paid directly to and shall be
retained by Tenant if and to the extent such separate compensation shall not
reduce the Compensation otherwise payable to Landlord pursuant hereto. All
Compensation shall be applied pursuant to this Section 7.01, and all such
Compensation (less the expense of collecting such Compensation) is herein called
the "Net Proceeds." All Compensation received by Landlord or Tenant shall be
deposited with Landlord.
Section 7.02 Casualty
If the Premises or any portion thereof shall be damaged or destroyed by
fire or other casualty, then Tenant shall promptly give notice thereof to
Landlord; and, except as hereinafter otherwise provided, Tenant shall, within a
reasonable time thereafter, repair or restore the Premises to substantially the
same condition they were in prior to the casualty, and there shall be no
abatement of rent. It is agreed and understood that if during the last year of
the term of this Lease the Premises shall be damaged or destroyed as aforesaid
to the extent of twenty (20%) percent or more of its insurable value, Landlord
or Tenant, at either party's election, may terminate this Lease by notice to the
other party within thirty (30) days after such damage or destruction. In the
event of any termination of the term of this Lease pursuant to the provisions of
this Section, Tenant shall assign all applicable insurance proceeds to Landlord
and remit to Landlord the amount of any shortfall between insurance proceeds and
cost of reconstructing the Premises, including without limitation, any
deductibles. The termination shall become effective on the fifteenth day after
the giving of the notice of termination. Landlord's approval is required for all
plans, specifications, contractor and schedule of construction. Such approval
not to be unreasonably withheld.
ARTICLE VIII
ASSIGNMENTS AND SUBLETTING
--------------------------
Section 8.01 Landlord's Consent Required
Tenant will not voluntarily, involuntarily, by operation of law or
otherwise assign, sublet, license, mortgage or otherwise transfer this Lease in
whole or in part, or permit the Premises or any part thereof to be used or
occupied by others without first obtaining the consent of Landlord, such consent
shall not be unreasonably withheld, provided it may be a condition of Landlord's
approval of any assignment, sublet, license, mortgage or other transfer that
Landlord be reimbursed for Landlord's contribution to Tenant improvements in the
amount of $150,000. Tenant acknowledges it shall be reasonable for Landlord to
require financial confirmation of any prospective assignee, sublessee, licensee
or other transferee and to require the guaranty of the principals of such
organization.
Consent by Landlord to any assignment or subletting shall not constitute a
waiver of the requirement for such consent to any subsequent assignment or
subletting. No consent by Landlord to an assignment shall release Tenant from
its obligations under this Lease, except as specifically provided herein.
8
Section 8.02 Transfer of Ownership of Tenant.
If Tenant is a corporation limited liability company or a partnership and
if at any time after execution of this Lease any part or all of any interest in
Tenant shall be transferred by sale, assignment, bequest, inheritance, operation
of law or other disposition (including a transfer to or by a receiver or trustee
in Federal or State bankruptcy, insolvency, or other proceedings), so as to
result in a change in the control of Tenant, shall constitute an assignment of
this Lease for all purposes. Tenant shall provide a current list of beneficial
owners of Tenant and the percentage ownership of each beneficial owner as of the
Lease Commencement Date and as subsequently requested by Landlord.
Section 8.03 Acceptance of Rent from Transferee.
The acceptance by Landlord of the payment of Rent following any assignment
or other transfer prohibited by this Article shall not be deemed to be a consent
by Landlord to any such assignment or other transfer nor shall the same be
deemed to be a waiver of any right or remedy of Landlord hereunder.
Section 8.04 Assignments of Rights.
As security for the obligations of Tenant under this Lease, Tenant does
hereby assign, transfer and set over unto Landlord all of the rights, title and
interest of Tenant in and to any sublease by Tenant. Neither an assignment by
Tenant nor an agreement by Landlord to accept any subtenant as a tenant of
Landlord in the event of a termination of this Lease nor in any manner as a
waiver by Landlord of the provisions and limitations or to constitute an
agreement by Landlord to perform any of the obligations of Tenant under any
sublease of the Premises. Tenant shall indemnify, defend, save and hold Landlord
harmless of and from any and all loss, cost, expense or liability pursuant to
any sublease. Until the occurrence of default by Tenant under this Lease, Tenant
may continue to collect the rent and other sums payable under the sublease(s)
assigned hereby; but from and after the occurrence of an event of default all
such rent and other sums shall be paid to Landlord and applied by Landlord on
account of rent and other sums due by Tenant to Landlord pursuant to this and
shall be (and may be) relied upon by the subtenant in making payments to
Landlord. No subtenant shall be liable to Tenant for any payment made by the
subtenant to Landlord pursuant to the paragraph. No sublease shall be valid or
effective unless it shall expressly restate therein the provisions of this
paragraph.
ARTICLE IX
ESTOPPEL AND SUBORDINATION
--------------------------
Section 9.01 Execution of Estoppel Certificate.
Tenant shall, at any time, and from time-to-time, within five (5) days
after written request by Landlord, execute, acknowledge and deliver to Landlord
a written instrument in recordable form: (i) ratifying this Lease; (ii)
confirming the Commencement Date and the expiration date of the term hereof;
(iii) certifying that this Lease is in full force and effect and has not been
assigned, modified, supplemented or amended, except by such writings as shall be
stated therein and attached thereto; (iv) certifying that to the best knowledge
of the signer of such certificate, all conditions and agreements in this Lease
to be satisfied or performed by Landlord have been satisfied and performed
(except as shall be stated) and certifying that Landlord is not in default under
this Lease and that there are no defenses or offsets against the enforcement of
this Lease by Landlord (or stating the defaults and/or defenses claimed by
Tenant); (v) certifying the amount of security deposit, advance rent, if any,
paid by Tenant and the date to which rent has been paid and (vi) any other
information which Landlord shall require. Tenant agrees that any such statement
may be relied upon by any prospective purchaser of the Premises or any interest
therein or any Mortgagee or prospective Mortgagee of the Premises of any
interest therein or any assignee of Landlord's interest in this Lease or any
part thereof.
Section 9.02 Subordination.
Tenant hereby subordinates all of its right, title and interest in and
under this Lease to the lien of any mortgage or mortgages, or the lien resulting
from any other method of financing or refinancing, now or hereafter in force
against the real estate and/or buildings of which the Premises is a part or
against any buildings hereafter placed upon said real estate of which the
Premises is a part. Any Lender of Landlord may elect to subordinate its loan to
this Lease. Landlord agrees to obtain a subordination nondisturbance agreement
from any future Lender in such Lender's standard form.
Section 9.03 Attornment.
Tenant shall, in the event any proceedings are brought for the foreclosure
of or in the event of exercise of the power of sale under any mortgage made by
Landlord covering the Premises, attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as the Landlord under this
Lease.
9
ARTICLE X
TENANT DEFAULTS, REMEDIES
-------------------------
Section 10.01 Default.
In the event the Premises becomes deserted, or stands vacant, or if Tenant
defaults, in the payment of rent or in the performance of any covenant,
agreement, obligation, or in the event the Tenant or any Guarantor shall become
insolvent, or file a petition in voluntary bankruptcy, or have an involuntary
petition in bankruptcy filed against it, Landlord may at Landlord's option and
without notice to Tenant, which is hereby expressly waived, immediately or at
any time thereafter exercise the remedies set out herein or available at law or
in equity.
Section 10.02 Remedies.
Following the occurrence of a default hereunder Landlord may:
A. Declare this lease terminated and this Lease shall expire as fully and
completely as if that day were the date herein originally fixed for the
expiration of the term and Tenant shall quit and surrender the Premises to
Landlord, but Tenant shall nevertheless continue to remain liable
hereunder.
B. Accelerate all or any of the Rent due for the unexpired balance of the
term of this Lease.
C. Re-enter the Premises and remove all persons and all or any property
therefore by any suitable action or proceedings at law or in equity, or by
force or otherwise, without being liable for any prosecution therefor or
damages therefrom, and repossess and enjoy the Premises, together with all
additions, alterations and improvements. Such re-entry shall not relieve
Tenant from the obligation to make the rental payments required by this
Lease at the time and in the manner provided herein. Upon such re-entry
Landlord may acting in good faith, but shall not be required to, repair,
remodel and/or change the character of the Premises as Landlord may see
fit, and/or at any time relet the Premises in whole or in part, as the
agent of Tenant, or otherwise, in the name of Landlord or of Tenant, as
Landlord shall see fit, and Landlord may receive the rents therefor,
applying the same first to the payment of such reasonable expenses as
Landlord may have incurred in entering, dispossessing, reletting, repairing
or altering the Premises and then to the fulfillment of the covenants of
Tenant herein, including but not limited to, the rental payments required
hereunder, retaining any balances until the date the term of this Lease
would otherwise have expired as security for the payment of all obligations
of Tenant which may arise and be unpaid during such period. If Landlord,
after such re-entry shall be unable to obtain sufficient rent from the
Premises to pay the amount of expenses herein above specified in addition
to the payment of the rent required hereunder, and fulfillment of the
covenants of Tenant herein, Tenant shall pay to Landlord such difference at
the end of each month during the remainder of the term. In attempting to
relet the Premises, Landlord shall acting reasonably be the sole judge as
to whether or not a proposed tenant is suitable and acceptable.
D. Cure the default at Tenant's cost and expense.
Landlord shall not, by receiving partial payments of rent in arrears, be deemed
to have waived any rights herein for non-payment of rent, or for any other
default on the part of Tenant. In addition to all of the remedies granted
Landlord in this respect, Landlord shall also have the right to invoke any
remedy allowed at law or equity to enforce Landlord's rights hereunder or any of
them, as if re-entry and other remedies were not herein provided for.
Tenant specifically waives its right to assert any counter claims in any action
brought by Landlord for eviction, such waiver shall not limit or preclude
Tenants ability to assert such rights in a separate action. All remedies
available to the Landlord hereunder and at law are and shall be non exclusive
and cumulative.
Section 10.03 Notice to Tenant.
Notwithstanding anything herein above stated, Landlord agrees that Landlord
will not exercise any right or remedy provided for in this Lease or allowed by
law because of any default of Tenant, unless Landlord shall have first given
written notice thereof to Tenant and Tenant, within a period of five (5) days
thereafter shall have failed to pay the sum or sums due if the default consists
of the failure to pay money, or if the default consists of something other than
the failure to pay, Tenant shall have failed within ten (10) days thereafter to
cure such default, provided, however, that no such notice from Landlord shall be
required nor shall Landlord be required to allow any part of the said notice
period if Tenant shall have filed a petition in bankruptcy or made an assignment
for the benefit of creditors or shall otherwise initiate proceedings for the
appointment of a receiver of Tenant's assets, or if a receiver or trustee is
appointment for Tenant or the Guarantor and such appointment and such
receivership or trusteeship is not terminated within thirty (30) days and
provided further that Landlord shall not be required to give any notice with
regard to a default of the same character called for by this Section 10.03 more
than two (2) times in any twelve (12) month period.
10
If the performance of any covenant, agreement, obligation or undertaking
(exclusive of payment or monetary obligations of Lessee hereunder) required
hereunder is delayed, hindered or prevented by reason of strikes, lock-outs,
labor troubles, wars, civil commotions, Acts of God, governmental restrictions
or regulations or interferences, fires or other casualty, or any circumstances
beyond the control of the party obligated or permitted under the terms hereof to
do or perform the same, the performance of such covenant, agreement, obligation
or undertaking shall be excused and extended and shall not be an Event of
Default for the period of such delay, hindrance or prevention.
ARTICLE XI
MISCELLANEOUS
-------------
Section 11.01 Landlord's Right of Entry.
Landlord reserves the right at all reasonable times during the term of this
Lease for Landlord or Landlord's agents to enter the Premises for the purpose of
inspecting and examining the same, and to show the same to prospective
purchasers or tenants, and to make such repairs, alterations, improvements or
additions as Landlord may deem reasonably necessary. During the one hundred
twenty (120) days prior to the expiration of the term of this Lease or any
renewal term, Landlord may exhibit the Premises to prospective tenants or
purchasers, and place upon the Premises the usual notices advertising the
Premises for sale or lease, as the case may be, which notices Tenant shall
permit to remain thereon without molestation.
Section 11.02 Landlord's Exculpatory Clause.
It is specifically understood and agreed that there shall be no personal
liability of Landlord in respect to any of the covenants, conditions, or
provisions of this lease. In the event of a breach or default by Landlord of any
of its obligations under this lease, Tenant shall look solely to any right of
offset allowed by law against any amounts due hereunder or to the equity of the
Landlord in the Premises for the satisfaction of Tenant's remedies, it being
understood and agreed that the exculpation of Landlord (and its successors and
assigns) shall be absolute.
In the event of any transfer or transfers of Landlord's interest in the
Premises, the transferor shall be automatically relieved of any and all
obligations and liabilities on the part of the Landlord accruing from and after
the date of such transfer.
Section 11.03 Landlord's Defaults.
Landlord shall in no event be in default in the performance of any of its
obligations in this Lease contained unless and until Landlord or the holder of
any mortgage on the Premises shall have failed to commence to perform such
obligation within thirty (30) days after notice by Tenant to Landlord and to
such mortgagee properly specifying wherein Landlord has failed to perform any
such obligation or shall have failed to proceed thereafter with reasonable
diligence to complete such performance.
Section 11.04 Landlord's Covenant.
Upon payment by Tenant of the rents herein provided, and upon the
observance and performance of all the covenants, terms and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and quietly
enjoy the Premises for the term hereby demised without hindrance or interruption
by Landlord or any other person or persons lawfully or equitably claiming by,
through or under the Landlord, subject, nevertheless, to the terms and
conditions of this Lease, and any mortgages to which this Lease is subordinate.
Section 11.05 Rules and Regulations.
Tenant agrees to comply with and observe all written rules and regulations
established by Landlord from time to time which are constant with rules and
regulations promulgated by the Landlord for similar properties. Landlord shall
provide Tenant with copies of any new rules and regulations, or modifications to
the same, at least thirty (30) days prior to the effective date of such rules
and regulations. Tenant's failure to keep and observe said rules and regulations
shall constitute a breach of the terms of this Lease in the manner as if the
same were contained herein as covenants.
Section 11.06 Notices.
Any notice, demand, request or other instrument which may be or is required
to be given under this Lease shall be given by United States certified mail,
return receipt requested, postage prepaid or by overnight courier service which
provides receipt upon delivery and shall be addressed (a) if to Landlord, at its
principal place of business or at such other address as Landlord may designate
by written notice, from time to time, and (b) if Tenant at the Premises or at
such other address as Tenant shall designate by written notice, from time to
time. All notices shall be deemed given when deposited, properly addressed, in
the United State mail, as herein provided, regardless of whether such notice is
undelivered or the addressee should refuse to accept delivery thereof for any
reason. Notice provided by any other means shall be effective upon delivery to
the address set out above.
11
Section 11.07 Recording.
Tenant shall not record this Lease without the written consent of Landlord.
Section 11.08 Furnishing of Financial Statements.
Upon Landlord's written request, in order to aid Landlord in the sale,
financing or refinancing the Premises, Tenant shall promptly furnish Landlord,
within thirty (30) days of request from Landlord, financial statements
reflecting the financial condition of Tenant and any guarantors.
Section 11.09 Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly rent herein stipulated or any other amount required to be paid under
this Lease shall be deemed to be other than on account of the amount payable by
the Tenant, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction and
Landlord shall accept such check or payment without prejudice to Landlord's
right to recover the balance of the amount due or pursue any other remedy in
this Lease provided.
Section 11.10 Laws to Govern.
This Lease shall be governed by, and construed in accordance with, the laws
of Florida. If any provision of this Lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this Lease shall not be affected thereby and each provision of the
Lease shall be valid and enforceable to the fullest extent permitted by the law.
Section 11.11 Successors.
All rights and liabilities herein given to, or imposed upon, the respective
parties hereto shall extend to and bind the several respective heirs,
administrators, successors and assigns of the said parties; and if there shall
be more than one Tenant, they shall all be bound jointly and severally by the
terms, covenants and agreements herein. No rights, however, shall inure to the
benefits of any assignee of Tenant unless the assignment to such assignee has
been approved by Landlord in writing as provided in this Lease.
Section 11.12 Time of Essence.
It is understood and agreed between the Landlord and Tenant that time is of
the essence with respect to all terms and provisions of this Lease.
Section 11.13 Waiver of Jury Trial.
Both Landlord and Tenant agree to and do hereby waive trial by jury in any
action, proceeding or counter-claim brought by either of the parties hereto
under or in connection with this Lease.
Section 11.14 Entire Lease.
It is expressly understood and acknowledged by and between the parties
hereto that this Lease and the Riders and s attached hereto and forming apart
hereof as forth all of the promises, agreements, conditions and understandings
between Landlord and Tenant relating to the Premises and the demise, and that
there are no promises, agreements, conditions or understandings, either oral or
written, between them other than are herein set forth. It is further understood
and agreed that, except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon Landlord or
Tenant unless reduced to writing and signed by them.
Section 11.15 Brokers.
Each party represents and warrants to the other party that it has had no
dealings, negotiations or consultations with respect to the Premises or this
transaction with any broker or other intermediary other than the Broker and that
no other broker or other intermediary called the Premises to Tenant's attention
for lease. In the event that any broker or finder other than the Broker claims
to have submitted the Premises or any other space in the Premises to Tenant or
for Landlord, to have induced Tenant to lease the Premises or to have taken part
in any dealings, negotiations, or consultations with respect to the Premises,
the Premises or this transaction, each party shall be responsible for and will
indemnify and save harmless the other party from and against any and all costs,
fees (including, without limitation, attorney's fees), expenses, liabilities and
claims incurred or suffered by the other party as a result thereof.
12
Section 11.16 Construction.
It is the intent of the parties hereto that if any term, covenant or
condition of this Lease is capable of two constructions, one of which would
render the provision void and the other of which would render the provision
valid, then the provision shall have the meaning which shall render it valid.
Printed parts of this Lease shall be as binding upon the parties hereto as other
parts hereof. parts of this Lease which are written or typewritten shall have no
grater force or effect than and shall not control parts which are printed, but
all parts shall be given equal effect. Tenant declares that Tenant has read and
understands all parts of this Lease, including all printed parts hereof.
Section 11.17 Attorneys' Fees
In the event of any controversy arising under or relating to the
interpretation or implementation of this Lease or any breach thereof, the
prevailing party shall be entitled to payment for all costs and attorneys' fees
(both trial and appellate) incurred in connection therewith.
ARTICLE XII
ENVIRONMENTAL LAWS AND HAZARDOUS WASTE COMPLIANCE
-------------------------------------------------
Section 12.01 Compliance.
Tenant acknowledges the Premises are clean from any environmental
contamination at the commencement of the term and that Tenant has had the
opportunity to inspect the Premises and obtain any and all environmental
inspections Tenant believes are necessary or appropriate.
Tenant shall strictly comply, at its sole cost and expense, with any and
all applicable federal, state and local environmental laws, rules, regulations,
permits and orders affecting the Premises and the business operation of Tenant
conducted in the Premises, whether now in effect or as may be promulgated
hereafter, and as may be amended from time to time (hereinafter referred to as
"Environmental Laws"), and Tenant shall obtain and strictly comply with, at its
sole cost and expense, all federal, state and local permits and other
governmental approvals in connection with Tenant's use and occupancy of the
Premises.
Section 12.02 Hazardous Materials.
Without limiting the generality of Section 12.01, Tenant, at its sole cost
and expense, shall strictly comply with any and all applicable Environmental
Laws relating to the recycling, reuse, storage, handling, disposal and presence
of any "Hazardous Materials" (as hereinafter defined) in or about the Premises.
Tenant shall not permit or allow any "Hazardous Materials" in or about the
Premises except when necessary in the operation of Tenant's business. As used in
this Section, the term "Hazardous Material(s)" shall mean any substances defined
as or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "toxic substances," "contaminants" or other pollution
under any applicable Environmental Laws. Tenant shall not permit or allow, and
shall take all actions necessary to avoid, the occurrence of any spills of
Hazardous Materials in or about the Premises. Tenant shall promptly advise
Landlord in writing immediately upon becoming aware of:
(i) the existence of any spills, releases or discharges of Hazardous
Materials that occur in or about the Premises, on or away from the
Premises as the result of any use of the Premises, and of any existing
or threatened violation of this Section;
(ii) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened by any
governmental authority with respect to the Premises from time to time
under any applicable Environmental Laws;
(iii)any and all claims made or threatened by any non governmental party
against Tenant or the Premises relating to damage, contribution,
costs, recovery, compensation, loss or injury resulting from any
Hazardous Materials or any violation of applicable Environmental Laws;
and
13
(iv) Tenant's discovery of any occurrence or condition on any real property
adjoining or in the immediate vicinity of the Premises that could
cause the Premises or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of
the Premises under any Environmental Laws.
Section 12.03 Waste Discharge.
Without limiting the generality of Section 12.01, at all times during the
term of this Lease and any renewals or extension hereof, Tenant, at its sole
cost and expense, shall comply with any and all applicable laws, regulations,
ordinances, permits and orders regulating the type and quantity of waste that
may be discharged into the sanitary sewer system serving the Premises. Tenant
agrees to limit its discharges of waste into the sanitary sewer system to
"Domestic Waste Water," as such term is defined by Rule 17-6.030(22) of the
Florida Administrative Code as amended from time to time, or as the term may be
defined by other laws, regulations, ordinances, permits or orders presently in
effect or hereafter enacted, as such laws, regulations, ordinances, permits or
orders may be amended from time to time. In no event, however, shall Domestic
Waste Water be construed to mean or include any "Non-Domestic Waste Water" that
has undergone "Pretreatment" as the latter term is defined in Rule 17-6.030(63)
of the Florida Administrative Code or as defined by other laws, regulations,
ordinances, orders or permits presently in effect or hereafter enacted, as such
laws, regulations, ordinances, orders or permits may be amended from time to
time.
Section 12.04 Environmental Claims.
Without Landlord's prior written consent, Tenant shall not enter into any
settlement, consent or compromise with respect to any "Environmental Claim(s)",
as hereinafter defined, provided, however, the Landlord's prior consent shall
not be necessary for Tenant to take any remedial action if order by a court of
competent jurisdiction or if the presence of Hazardous Materials at the Premises
poses an immediate, significant threat to the health, safety or welfare of any
individual otherwise requires an immediate remedial response. As used in this
Section, "Environmental Claim(s)" shall mean any claim(s) or cause(s) of action
resulting from the failure of Tenant or the Premises to comply with any
Environmental law relating to Hazardous Materials, industrial hygiene, or
environmental conditions. In any event, Tenant shall promptly notify Landlord of
any action so taken.
Section 12.05 Energy Efficiency.
Tenant is advised that pursuant to Florida Statutes section 553.996, Tenant
may have the energy efficiency rating of the building determined.
Section 12.06 Radon Gas.
Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over a period of time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from the Public
Health Unit of the County in which the Premises is located.
LANDLORD:
XXXXXXXXXX XXXXXX
/s/ on file
----------------------- ---------------------------
By: /s/ on file
----------------------- ---------------------------
AS TO LANDLORD Its: President
---------------------------
TENANT:
IMAGICA ENTERTAINMENT, INC.
14
ESCROW AGREEMENT
----------------
THIS ESCROW AGREEMENT ("Escrow Agreement") is made and entered into between
IMAGICA ENTERTAINMENT, INC. ("Tenant") and XXXXXXXXXX XXXXXX ("Landlord").
Tenant and Landlord are hereinafter collectively referred to as "Principals" and
ADVANCE HOMESTEAD TITLE, INC., is hereinafter referred to as "Escrow Agent".
Principals desire that Escrow Agent hold certain property as described on
EXHIBIT "A" hereto ("Escrowed Property") pursuant to the Escrow Instructions
described on EXHIBIT "B" hereto, ("Instructions").
Escrow Agent has agreed to act as escrow agent for the Escrowed Property on
the terms and conditions set forth in the "General Conditions of Escrow" as
described in "EXHIBIT C" hereto.
In consideration of the covenants and agreement herein set forth and other
good and lawful consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree that the
Escrowed Property shall be held and disbursed in accordance with the
Instructions, subject to the General Conditions of Escrow, incorporated herein
by reference.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed this -- day of March, 1999.
PRINCIPALS:
LANDLORD:
/s/ Xxxxxxxxxx Xxxxxx
----------------------------
XXXXXXXXXX XXXXXX
TENANT:
IMAGICA ENTERTAINMENT, INC.
----------------------------
By: /s/ Signature on file
----------------------------
It: President
----------------------------
ESCROW AGENT:
ADVANCE HOMESTEAD TITLE, INC.
By: /s/ Xxxxx Xxxxx
----------------------------
Authorized Agent
EXHIBIT "A" TO ESCROW AGREEMENT
"ESCROWED PROPERTY"
The sum of Three Hundred Thousand Dollars ($300,000.00), One Hundred Fifty
Thousand Dollars ($150,000.00) paid by Tenant to Escrow Agent and One Hundred
Fifty Thousand Dollars ($150,000.00), pursuant to Paragraph 4 of that certain
Lease by and between the Principals for the premises known as 0000 XX 00xx
Xxxxxx, Xxxxx, Xxxxxxx. Said Escrowed Property is hereby received by Escrow
Agent (subject to clearance) and shall be held in an interest bearing account.
Tenant's FEI Number is 00-0000000.
EXHIBIT "B" ESCROW AGREEMENT
----------------------------
"INSTRUCTIONS"
--------------
The following constitutes Instructions to Escrow Agent regarding the
folding and disbursement of the Escrowed Property:
Landlord and Tenant are parties to the certain Lease for the property
located on l42O XX. 00xx Xxxxxx, Xxxxx, Xxxxxxx, and in accordance with Article
4 of the Lease between Landlord and Tenant, Tenant has agreed to perform certain
construction work for the Premises, known as "Tenant's Work," and further,
Tenant has covenanted that a certain portion of Tenant's Work for the Base
Building, specifically defined as "Building Improvements," shall be at a cost
not less than Three Hundred Thousand Dollars ($300,000.00). The parties have
agrees that Tenant shall escrow One Hundred Fifty Thousand Dollars ($150,000.00)
with Escrow Agent and Landlord will contribute and deposit with Escrow Agent One
Hundred Fifty Thousand Dollars ($150,000.00). Tenant estimates and has
represented to Landlord that it will spend not less than Three Hundred Thousand
Dollars ($300,000.00) for "Building Improvements," as defined in the Lease and
the parties agree that the Escrowed Property may be disbursed by Escrow Agent as
follows:
1. Tenant agrees that a request for disbursement of these Escrowed
Property shall be only for "Hard Costs" which shall be defined as
follows: the actual cost and expense to Tenant for the "Building
Improvements" but excluding therefrom all costs and expense of Tenant
pertaining to architectural fees, engineering fees, attorney's fees,
permit fees and any interest costs of Tenant or penalties or late fees
associated with the cost of the "Building Improvements"; "Hard Costs"
are specifically deemed to include payments to Tenant's general
contractor and its subcontractors, materialmen, and laborers, as
pertains to the installation and construction of the "Building
Improvements."
2. Tenant shall submit to Landlord and Escrow Agent a written request for
a disbursement of monies as are permitted in accordance with the
provisions hereof which request shall specify the party or parties to
be paid and the costs of the Work for which the disbursed funds are
intended to pay, and each request shall be accompanied by a personal
notarized certification ("Certification") of Xxxxxx Xxxxxxxxx and the
general contractor confirming said costs together with estimated
budget to complete remaining work.
3. Upon receipt of such written request and Certification, Escrow Agent
shall after confirming the disbursement with Landlord and determining
the balance of escrow funds are sufficient to complete the remaining
work, make the disbursement either to Tenant or directly to the party
to be paid such cost, and Escrow Agent shall have no duty to inquire
as to any information set forth in the application ro Certification.
4. Contemporaneously with each disbursement by Escrow Agent, Tenant shall
deliver, or cause to be delivered, to Escrow Agent (with copy to
Landlord) an originally executed partial release of lien, executed by
the party or parties identified in Tenant's Certification providing
the Work for which such disbursement is to be paid as set forth in
Tenant's Certification for such disbursement.
5. Any interest earned on the Escrowed Property shall be disbursed as
part of the Escrow.
6. To the extent any portion of the Escrow is not disbursed by September
30, 1999 any balance of such funds shall be paid to Landlord.
EXHIBIT "C"
-----------
GENERAL CONDITIONS OF ESCROW
----------------------------
Except as specifically modified by written agreement executed by all
parties hereto and accepted by Escrow Agent, these General Conditions of Escrow
shall apply to this Escrow and the Escrowed Property received hereunder:
I. Escrow
A. Escrow Agent shall not be deemed to have knowledge of any matter
or thing unless and until Escrow Agent has actual knowledge or
has actually received written notice of such matter or thing and
Escrow Agent shall not be charged with any constructive notice
whatsoever.
B. In the event instructions from Principals would require Escrow
Agent to expend any monies or incur any cost, Escrow Agent shall
be entitled to refrain from taking any action until it received
payment for such costs.
C. Principals acknowledge and agree that nothing in this Escrow
Agreement shall prohibit Escrow Agent from (1) serving in a
similar capacity on behalf of others or (2) acting in the
capacity of attorneys for one or more Principals in connection
with any matter.
II. Release of Escrowed Property
A. Escrow Agent agrees to release the Escrowed Property in
accordance with the terms and conditions set forth in the
Instructions, and this Escrow Agreement.
B. If all or any portion of the Escrowed Property delivered to
Escrow Agent is in the form of a check or in any form other than
cash, Escrow Agent shall deposit same as required but shall not
be liable for the non-payment thereof nor responsible to enforce
collection thereof. If such check or other instrument other than
cash representing the Escrowed Property is returned to Escrow
Agent unpaid, Escrow Agent shall notify the applicable Principals
for further instructions.
III. Liability of Escrow Agent
It is agreed that the duties of Escrow Agent are purely ministerial in
nature and shall be expressly limited to the safekeeping of the Escrowed
Property and for the disposition of same in accordance with the Instructions,
and this Escrow Agreement. Each Principal hereby indemnifies Escrow Agent and
holds it harmless from and against any and all claims, liabilities, damages,
costs, penalties, losses, actions, suits or proceedings at law or in equity, or
any other expenses, fees, or charges of any character or nature, which it may
incur or with which it may be threatened directly or indirectly arising from or
in any way connected with this Escrow Agreement or which may result from Escrow
Agent's complying with the Instructions, and in connection therewith,
indemnifies Escrow Agent arising any and all expenses, including attorneys' fees
and the cost of defending any action, suit, or proceeding or resisting any
claim, whether or not litigation is instituted. Escrow Agent shall be vested
with a lien on all Escrowed Property held hereunder which is deliverable to
Principals under the terms of this Escrow Agreement, for indemnification,
attorneys' fees, court costs arising from any suit, interpleader or otherwise,
or other expenses, fees or charges of any character or nature, which may be
incurred by Escrow Agent by reason of disputes arising between Principals and/or
any third party as to the correct interpretation of this Escrow Agreement
hereunder, or otherwise, with the right of Escrow Agent, regardless of the
instructions aforesaid and without the necessity of instituting any action, suit
or proceeding, to hold the Escrowed Property until and unless said additional
expenses, fees and charges shall be fully paid.
IV. Disputes
A. In the event Escrow Agent is joined as a party to a lawsuit by
virtue of the fact that it is holding the Escrowed Property,
Escrow Agent shall, at its option, either (1) tender the Escrowed
Property to the registry of the appropriate court or (2) disburse
the Escrowed Property in accordance with the court's ultimate
disposition of the case, and Principals hereby, jointly and
severally, indemnify and hold Escrow Agent harmless from and
against any damages or losses in connection therewith including,
but not limited to, reasonable attorneys; fees and court costs at
all trial and appellate levels.
B. In the event Escrow Agent tenders the Escrowed Property to the
registry of the appropriate court and files and action of
interpleader naming the Principals and any affected third parties
of whom Escrow Agent has received actual notice, Escrow Agent
shall be released and relieved from any and all further
obligations and liability hereunder or in connection herewith and
Principals hereby, jointly and severally, indemnify and hold
Escrow Agent harmless from and against any damages or losses
arising in connection therewith including, but not limited to,
all costs and expenses incurred by Escrow Agent in connection
with the filing of such action including, but not limited to,
reasonable attorneys' fees and court costs at all trial and
appellate levels.
V. Term of Agreement
A. This Escrow Agreement shall remain in effect unless and until it
is canceled in any of the following manners:
1. Upon written notice given by all Principals of cancellation
of designation of Escrow Agent to act and serve in said
capacity, in which event, cancellation shall take effect no
earlier than five (5) days after notice to Escrow Agent of
such cancellation; or
2. Escrow Agent may resign as escrow agent at any time upon
giving notice to Principals of its desire to so resign;
provided, however, that resignation of Escrow Agent shall
take effect no earlier than five (5) days after the giving
of notice of resignation; or
3. Upon compliance with all escrow provisions as set forth in
this Escrow Agreement and in the Instructions.
B. In the event Principals fail to agree to a successor escrow agent
within the period described herein above, Escrow Agent shall have
the option: i) to deposit all of the Escrowed Property held
hereunder into the registry of an appropriate court and request
judicial determination of the rights between Principals, by
interpleader or other appropriate action, and Principals hereby,
jointly and severally, indemnify and hold escrow Agent harmless
from and against any damages or losses in connection therewith
including, but not limited to, reasonable attorneys' fees and
court costs at all trial and appellate levels; or ii) continue to
act as Escrow Agent until a successor is appointed. Escrow Agent
shall be deemed to have elected to continue to act as Escrow
Agent until successor is appointed or money is deposited in the
Court Registry.
C. Upon termination of the duties of Escrow Agent in either manner
set forth in subparagraphs 1. and 2. of Paragraph A. of this
Article V., Escrow Agent shall deliver all of the Escrowed
Property to the newly appointed escrow agent designated by the
Principals, and, except for rights of Escrow Agent specified in
Paragraph A. of Article III. of this Escrow Agreement, Escrow
Agent shall not otherwise have the right to withhold Escrowed
Property from said newly appointed escrow agent.
D. Escrow Agent shall not be bound by any modification, cancellation
or rescission of this Escrow Agreement unless in writing and
signed by all Principals and Escrow Agent. In no event shall any
modification of this Escrow Agreement, shall affect the rights or
duties of Escrow Agent, be binding on Escrow Agent unless it
shall have given is prior written consent.
VI. Notices
All notices, certificates, requests, demands, materials and other
communications hereunder shall be in writing and deemed to have been duly given
(1) upon delivery by hand to the appropriate address of each Principal or Escrow
Agent as set forth in this Escrow Agreement or in the Documents, if any, or (2)
on the third business day after mailing by United States registered or certified
mail, return receipt requested, or Federal Express, next day delivery, or
similar service, postage prepaid to such address. All notices to the parties
shall be addressed to the person hereinafter indicated at the following address:
Tenant: Landlord:
------- ---------
Imagica Entertainment, Inc. Xxxxxxxxxx Xxxxxx
0000 X.X. x0xx Xxxxxx x/x Xxxxxx Xxxxxxxxxxxxx
Xxxxx, XX 00 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
With copy to:
Xxxxxxx Xxxxx, Esquire With copy to:
0000 Xxxx Xxxxxx Xxxxx Xxxxxx, Xxx.
Xxxxxxxx, XX 00000 0000 XX Xxxxxxxxx Xxxx., Xxxxx 000X
Xxxx Xxxxx, XX 00000
Escrow Agent:
Advance Homestead Title, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
VII. Choice of Law and Venue
This Escrow Agreement shall be governed by and construed in accordance with
the laws of the State of Florida. In the event any action, suit or proceeding is
instituted as a result of any matter or thing affecting this Escrow Agreement
the parties hereto hereby designate Palm Beach County, Florida, as the proper
jurisdiction and the venue in which same is to the instituted.
VIII. Cumulative Rights
No right, power or remedy conferred upon Principals or Escrow Agent by this
Escrow Agreement is exclusive of any other right, power or remedy, but each and
every such right, power or remedy shall be cumulative and concurrent and shall
be in addition to any other right, power or remedy Principals or Escrow Agent
may have under the Escrow Agreement or now or hereafter existing at law, in
equity or by statute, and the exercise of one right, power or remedy by
Principals or Escrow Agent shall not be construed or considered as a waiver of
any other right, power or remedy.
IX. Binding Agreement
This Escrow Agreement shall be binding upon the Principals and Escrow Agent
and their respective successors and assigns.
X. Escrow Agent Fees
The fees and costs of Escrow Agent for acting hereunder shall be paid by
Tenant.
SCHEDULE "A"
------------
BASE RENT
---------
RENTAL COMMENCEMENT DATE PER ANNUM MONTHLY
------------------------ --------- -------
December 31, 2000 $ 75,000 $6,250
January 1, 2001 - December 31, 2003 $ 90,000 $7,500
January 1, 2004 - December 31, 2004 $100,000 $8,333.33
January 1, 2005 and each January 1 thereafter CPI increase as provided in the
Lease.
The Minimum Rent shall adjust on the first day of the day of the month occurring
one year after the Commencement Date, and each year thereafter. The increase
shall be determined based on the change in the Consumer Price Index, under "All
cities" from the base month and year (December 1998) to current December. The
increase shall be not less than a three percent (3%) increase or more than a
five percent (5%) per year increase on a cumulative basis from the initial
Minimum Rent. In no event shall Minimum Rent paid in any year be reduced in the
following year by application of this Article.
EXHIBIT "A"
Commence at the NW corner of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx,
XXXXXXXXXX XXXX, Xxxx xx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxx, thence S.02 degrees
01'30''W. 112.01 feet along the West boundary of said Section 19 to a cross in
the brass plate of a found 8 inch octagon concrete monument; thence continuing
S.02 degrees 01'3O''W. 879.17 feet to a 4 X 4 concrete monument; thence East
777.09 feet; thence S.00 degrees 30'30''W. 228.43 feet to the Point of
Beginning, (1) thence continuing S.00 degrees 30'30''W. 171.57 feet; thence West
382.00 feet; thence N.00 degrees 30'30''E. 171.57 feet; thence East 382.0O feet
to the Point of Beginning;
AND
Commence at the NW corner of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 22 East,
thence S.02 degrees 0l'30''W. 112.01 feet to an 8 inch octagonal concrete
monument being the NE corner of the airport; thence continue S.02 degrees
01'30''W. 879.17 feet to a 4 X 4 concrete monument; thence East 420.09 feet to a
Point of Beginning; thence continue East 357 feet; thence S.00 degrees 30'30''W.
228.43 feet; thence West 382 feet; thence N.0 degrees 30'30''E. 203.43 feet to a
point of curve; said curve being concave having a radius of 25 feet; thence
continue around said curve to the Point of Beginning.
