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EXHIBIT 10.7
FORM OF
LEASE
THIS LEASE (the "Lease"), dated as of ______ day of February, 2000,
("Lease") is by and between AUTONATION USA CORPORATION, A FLORIDA CORPORATION
(hereinafter referred to as "Landlord"), and ANC RENTAL CORPORATION, A DELAWARE
CORPORATION (hereinafter referred to as "Tenant").
TERMS
For good and valuable consideration received by each party from the
other, the parties covenant and agree as follows:
1. PREMISES
(a) LANDLORD'S AUTHORITY. Landlord represents and warrants that it is
the sole fee owner of the land described on EXHIBIT A attached hereto, together
with all buildings (one multi-story office building and one restaurant
building), improvements, facilities and fixtures located on the land, and any
easements, rights of access and other property rights necessary to allow Tenant
unobstructed use and occupancy of the foregoing (collectively, the "Premises").
The Premises have an address of 000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000. Landlord represents and warrants that it has full right and
authority to lease the Premises to Tenant and to enter into this Lease on the
terms and conditions set forth herein, that no person or entity other than
Landlord has any right of possession in or to the Premises except as set forth
on SCHEDULE 1, and that the provisions of this Lease do not conflict with or
violate the provisions of existing agreements between Landlord and third
parties.
(b) LEASE OF PREMISES. Landlord hereby leases the Premises to Tenant,
and Tenant hereby leases the Premises from Landlord. The Premises are leased to
Tenant together with all appurtenances, rights and privileges in or otherwise
pertaining thereto.
(c) LANDLORD'S ACCESS. Landlord and its authorized agents or
representatives shall have reasonable access to the Premises during Tenant's
normal business hours and at all hours in the event of an emergency.
(d) The parties acknowledge that in addition to the Tenant, the
Premises are presently demised by Xxxxxxxx & Associates, Inc. d/b/a Downtown
Photo ("Existing Lease"). The parties acknowledge that this Lease is intended to
be primary lease and, during the Term, the Tenant shall be the lessor under the
Existing Lease. Accordingly, the Landlord does hereby assign to Tenant all of
Landlord's right, title and interest in the Existing Lease and the Tenant hereby
assumes the obligations thereunder. Upon any termination of this Lease, the
Tenant shall be deemed to have reassigned to Landlord all of Tenant's right,
title and interest in the Existing Lease and any "New Leases" (as hereinafter
defined), to the extent Landlord does not elect to have same terminated. The
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parties agree that with respect to any subleases which hereinafter are entered
into by Tenant ("New Leases"), then to the extent that the terms of such New
Leases extend beyond the Term the Lease, the Landlord shall not be obligated to
recognize any of the New Leases and shall be entitled to terminate any of the
New Leases upon any termination of this Lease unless prior to the termination of
this Lease, the Landlord has entered into a non-disturbance agreement with the
tenant under such New Lease.
2. TERM
(a) LEASE COMMENCEMENT. The term of this Lease shall commence on
January 1, 2000 (the "Commencement Date").
(b) INITIAL TERM. The initial term of this Lease (the "Initial
Term") shall be the period of time following the Commencement Date equal to (i)
ten (10) years, PLUS (ii) the period of time commencing on January 1, 2000 and
ends on a date which is the earlier of (x) the first day of the month following
the sale or other transfer of AutoNation USA Corporation's interest in the
Premises, or (y) September 1, 2000. For example, if AutoNation USA Corporation
sold its interest in the Premises on June 30, 2000, the Initial Term shall be
ten (10) years, six (6) months. Hereinafter, "Term" shall mean the Initial Term
and any extension thereof. The parties hereto agree that when the termination
date of the Lease is determined, they will execute a Term Expiration Agreement
in the form attached hereto as EXHIBIT B.
(c) EXTENSION TERMS.
(i) EXTENSION TERMS. Provided Tenant is not in Default at
the time of exercise beyond any applicable notice and cure period, Tenant shall
have the option to extend the original Term of this Lease, subject to all of the
provisions of this Lease, for two (2) additional periods of five (5) years each
(individually, an "Extension Term" and collectively the "Extension Terms"), each
such period commencing upon the expiration of the Term then in effect. Then Base
Rent payable by Tenant during any Extension Term shall be determined as set
forth in SCHEDULE 2. With respect to each such Extension Term, Tenant may
exercise its option hereunder by giving Landlord written notice (in the manner
prescribed by Section 24(i) hereof) of Tenant's exercise of said option to
extend at any time not less than one hundred eighty (180) days before the end of
the Term then in effect. After the exercise of any option to extend, all
references in this Lease to the Term hereof shall be considered to mean the Term
as extended, and all references to the end of the Term shall be considered to
mean the end of the Term as extended. If requested by Tenant, Landlord shall
execute such documents as Tenant shall from time to time reasonably request to
evidence the dates of the extended Term. If Tenant exercises its option by
giving appropriate notice, the Term of this Lease shall be automatically
extended upon the same terms and conditions set forth herein (except for Base
Rent to be established pursuant to SCHEDULE 2) for the applicable Extension Term
without execution of an extension or renewal Lease or any other document but in
no event may the Term be extended beyond ten (10) years after the Initial Term.
(ii) CONDITIONS OF EXTENSION. Tenant's right to exercise
the option to extend for each Extension Term is subject to satisfaction of the
following conditions precedent: (i) this Lease shall be in effect at the time
notice of exercise of an option to extend is given and on the last day of the
Term of the Lease prior to its extension; (ii) Tenant shall not be in default at
the time notice of exercise of the option is given or on the last day of the
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Term of the Lease prior to its extension beyond any applicable notice and cure
period; and (iii) the notice of exercise of the option to extend shall be
delivered in accordance with the requirements set forth in this Section. The
options to extend the Term provided in this Section shall immediately and
automatically terminate and shall be of no further force or effect in the event
that this Lease is terminated.
3. RENT
(a) INITIAL TERM. During the initial Term, Tenant shall pay to Landlord
base rent in the annual amount of Twelve Dollars ($12.00) times the gross
rentable square footage of the Premises, subject to adjustment under the terms
of subparagraph 3(a) below (as adjusted from time to time, "Base Rent"). For
purposes of calculating Base Rent, the parties have agreed that the gross
rentable square footage of the Premises is 160,896 square feet, which was
measured in accordance with the Standard Method for Measuring Floor Area in
Office Buildings, ANSI 265.1 - 1996, as promulgated by the Building Owners and
Managers Association (BOMA) International. The annual Base Rent, until the first
adjustment set forth below, is therefore One Million Nine Hundred Thirty
Thousand Seven Hundred Fifty-Two Dollars and 00/100 ($1,930,752.00) and is
payable in equal monthly installments of One Hundred Sixty Thousand Eight
Hundred Ninety-Six Dollars and 00/100 ($160,896.00) each. Base Rent plus any
Additional Rent due under this Lease shall be considered Rent as that term is
used in Florida Statute Chapter 83 and is hereinafter sometimes referred to as
"Rent." Rent shall be paid to Landlord at 000 X.X. 0xx Xxxxxx, 00xx Xxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Corporate Real Estate. Base Rent for any
partial months at the beginning or end of the Term shall be apportioned based on
the number of days in such partial months. Base Rent for the first month shall
be due and payable on the Commencement Date. Thereafter, Base Rent shall be due
on the first (1st) day of each month. For purposes of this Lease, the first
"Lease Year" shall be the time period commencing on the Commencement Date and
continuing until the first anniversary of the Commencement Date. Each subsequent
Lease Year shall be the twelve month period commencing upon expiration of the
prior Lease Year.
(b) BASE RENT ADJUSTMENTS. The Base Rent provided in the preceding
paragraph shall be adjusted on the 6th anniversary of the Commencement Date. On
the sixth (6th) anniversary of the Commencement Date, the Base Rent shall be
increased for the remainder of the Initial Term, to the annual amount of Two
Million One Hundred Twenty-Three Thousand Eight Hundred Twenty-Seven and 20/100
Dollars ($2,123,827.20), payable in equal monthly installments of One Hundred
Seventy-Six Thousand Nine Hundred Eighty-Five and 60/100 Dollars ($176,985.60).
(c) LATE RENT. Rent payments are due on the first (1st) day of the
month and shall be considered late if received after the fifteenth (15th) day of
the month. In the event that Tenant fails to make any Rent payment on or before
the fifteenth (15th) day of the month, Tenant shall pay a late charge in the
amount of 5% of the Base Rent due. Except as otherwise provided in this Lease,
Rent payments are due without notice or demand and without setoff or deduction.
(d) PAYMENT WITHOUT NOTICE OR DEMAND. The Base Rent called for in this
Lease shall be paid to Landlord without notice or demand, and without
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counterclaim, offset, deduction, abatement, suspension, deferment, diminution or
reduction, except as may be expressly set forth herein.
(e) SALES TAX. In addition to the Base Rent, Additional Rent and
any other sums or amounts required to be paid by Tenant to Landlord hereunder,
Tenant shall also pay to Landlord, simultaneously with such payment of such
Rents or other sums or amounts, the amount of any applicable sales, use or
excise tax on any such rents or other sums or amounts so paid by Tenant to
Landlord, levied, imposed or assessed by the State of Florida or other
governmental authority.
(f) ADDITIONAL RENT. In addition to the foregoing, all other
payments to be made by Tenant to Landlord hereunder shall be deemed, for purpose
of securing collection thereof, to be "Additional Rent" hereunder, whether or
not same be designated as such and shall be due and payable as and when required
in this Lease, and Landlord shall have the same rights and remedies upon
Tenant's failure to pay same as a the non-payment of Rent.
4. NET LEASE, OPERATING EXPENSES AND TAXES.
(a) It is the intent that the Rent provided for in this Lease
shall be an absolute net return to Landlord so that this Lease shall yield to
Landlord the net Basic Annual Rent specified in this Lease and that all costs,
expenses and obligations of every kind and nature whatsoever, whether general or
special, ordinary or extraordinary, that may be necessary in connection with the
use, occupancy or operation of the Premises shall be paid by Tenant. All
provisions of this Lease are to be construed in light of the intent that this be
a "Absolute Triple Net Lease"; provided, however, the Tenant shall not be
obligated to pay any income or franchise taxes which may be levied against
Tenant and Landlord shall have certain reimbursement obligations to Tenant as
specifically set forth in this Lease.
(b) SERVICES. The parties hereby acknowledge and agree that it
shall be the Tenant's obligation and responsibility to obtain or cause to be
available any and all services necessary for its utilization of the Premises.
Landlord shall not be obligated to provide any services or perform any act
whatsoever to Tenant or with respect to the Premises, except as expressly set
forth herein.
(c) MAINTENANCE. Tenant shall have the right and obligation to
manage the Premises and generally operate, maintain and repair the Premises in
the normal course of business in a first class manner consistent with other
similar office buildings in Broward County, Florida (including, without
limitation, the repair, replacement, removal and maintenance of the roof, all
structural components of the Building, all plumbing, equipment, water pipes,
sewer pipes, drains, fixtures, structures, surfacing, paving, driveways,
landscaping, lighting, electrical, heating, air conditioning, cooling,
refrigeration equipment, and all other equipment, apparatus and appurtenants to
the Premises). The Tenant will keep the Premises in a clean, healthful and safe
condition in accordance with and in compliance with all applicable laws,
ordinances and other governmental regulations, orders and directions during the
Term. Any damage to or destruction of the Premises shall be promptly repaired,
restored and replaced by Tenant as provided in this Lease. Except as otherwise
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provided in this Lease, Tenant shall be responsible for and shall pay all costs
and expenses in connection with the operation, maintenance, and repair of the
Premises during the Term hereof.
(d) TAXES. The Tenant covenants and agrees to pay prior to any
fine or penalty or cost which may be added thereto for the non-payment thereof:
all real estate and personal property taxes, assessments (whether general or
special) or otherwise during the Term hereof against: (i) all furniture,
fixtures, equipment and other personal property installed or located upon the
Premises; (ii) the Premises, including, without limitation, ad valorem taxes and
assessments; (iii) all alterations, additions, betterments or improvements of
whatever kind or nature made by Tenant to the Premises; and (iv) the rentals
payable hereunder by Tenant to Landlord (other than Landlord's federal or state
income taxes thereon) (collectively, "Taxes"). Notwithstanding anything
contained in this Lease to the contrary, the Tenant shall have the right from
time to time to contest or protest by legal proceedings any Taxes, assessments
(special or otherwise) or governmental or quasi-governmental impositions,
charges or fees and to institute such proceedings in the name of Landlord as
Tenant may deem reasonably necessary, provided that any expenses incurred by
reason thereof shall be borne by Tenant and such proceedings shall be conducted
free of all expenses to Landlord and in such manner as the Premises shall not be
subject to enforcement action and/or penalties as the result of the failure to
pay such Taxes. If, as and when and to the extent Tenant contests or protests
such Taxes, assessments, impositions, charges or fees, the Tenant's obligation
to pay such Taxes, assessments, impositions, charges or fees that are subject to
such proceedings shall be held in abeyance until a ruling is rendered, provided
that the Premises are in danger of being forfeited or lost, the Tenant shall be
obligated to tender payment of such Taxes, assessments, impositions, charges or
fees that are subject to the proceedings in order to obviate any potential
forfeiture or loss.
In the event Landlord's lender requires the escrow of such Taxes, and
upon sixty (60) days prior written notice from Landlord, Tenant shall deposit
with Landlord or a depository designated by Landlord, in addition to the payment
of Rent due under the terms of this Lease, monthly, on the first day of each
month during the Term, a sum equal to all Taxes, special assessments, water and
sewer rents or assessments and other charges imposed by law against the Premises
and all personal property thereon ("Impositions") next due on the Premises and
all personal property therein and thereon (all as reasonably estimated by
Landlord) divided by the number of months to elapse before one month prior to
the date which such Imposition will first become due and payable (with maximum
discount, if applicable). An adjustment in the amount of the aforesaid monthly
deposit shall be made commencing with the first monthly deposit due after the
date in which any change in the amount of the Imposition becomes ascertainable.
If the funds so deposited by Landlord are insufficient to pay in full, when due,
all Impositions as aforesaid, the Tenant shall, within ten (10) days of receipt
of written demand therefore from Landlord or its agent, deposit such additional
funds with Landlord or the depository as may be necessary to pay all such
Impositions in full. If the funds so deposited exceed the amounts required to be
paid such items, such excess shall be applied on account of any subsequent
deposit(s) required hereunder. Notwithstanding anything to the contrary
contained in this Lease, all deposit(s) required hereunder for Impositions shall
be held by Landlord or said depository in trust without accrual or without any
obligation to pay interest thereon or for the segregation thereof. When this
Lease and the Term hereof have finally expired and all sums due from Tenant to
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Landlord have been fully paid, any remaining deposits shall be promptly paid to
Tenant. Landlord shall make or cause the depository to make, any such
application of the aforesaid deposits without any direction or request to do so
by Tenant.
Tenant shall maintain complete and accurate books and records detailing
all expenses paid by it in connection with the maintenance and repair of the
Premises for not less than the preceding three (3) years. Tenant shall keep the
books and records at the Premises or shall make the same available to Landlord
at the Premises upon the prior request of Landlord. Landlord and its
representatives shall have the right, at its own expense, to examine, audit and
copy, during normal business hours, the Tenant's books and records pertaining to
Premises. The foregoing provisions shall survive termination or expiration of
this Lease.
5. REPAIRS AND MAINTENANCE.
Tenant shall, at its expense, maintain the Premises in a first class
condition consistent with other similar office buildings in Broward County,
Florida. The Tenant shall, at its own expense, xxxxx any nuisance pertaining to
the use of the Premises and shall comply with all existing and hereinafter
enacted laws, fire codes and requirements of applicable governmental and
quasi-governmental authorities and requirements and recommendations of insurance
underwriters with respect to the Premises or the use and occupancy thereof
arising from a violation thereof by: (a) Tenant's utilization of the Premises;
(b) the manner of conduct of Tenant's business or the installation of or the
operation of its properties on any portion of the Premises; (c) any cause or
condition created by or through Tenant; or (d) the breach of any of Tenant's
obligations under this Lease. The Tenant shall, at its expense, among other
things, make all repairs, replacements, removals and maintenance of the Premises
(including, but not limited to, the roof, all structural components of the
Building, all plumbing, equipment, water pipes, sewer pipes, gas pipes, drains,
fixtures, structures, surfacing, paving, driveways, landscaping, lighting,
electrical, heating, air conditioning, cooling and refrigeration equipment and
all other equipment and apparatus pertaining to the Premises) and shall keep the
Premises in a neat, healthful and safe condition and in accordance and in
compliance with all applicable laws, ordinances and other governmental
regulations, ordinances and directions during the Term. Any damage to or
destruction to the Premises shall be properly and timely repaired, restored and
replaced by Tenant.
6. USE
(a) PERMITTED USES. Tenant may use and occupy the Premises for all
lawful uses for Class A office and retail buildings.
(b) AS IS. Tenant represents that it has inspected the Premises
and is familiar with the condition of each portion thereof and accepts the same
in its present "AS IS" condition. The Landlord shall not be required to make any
alterations, repairs or improvements of any kind whatsoever to prepare the
Premises for Tenant's occupancy. LANDLORD MAKES NO REPRESENTATION WHATSOEVER
REGARDING THE PREMISES OR TENANT'S USE OR OCCUPANCY THEREOF AND TENANT HEREBY
WAIVES, RELEASES, RENOUNCES AND LANDLORD DISCLAIMS ANY GUARANTIES AND ANY
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IMPLIED OR EXPRESSED WARRANTIES OF MERCHANTABILITY, TENANTABILITY, HABITABILITY,
FITNESS OR FITNESS FOR A PARTICULAR PURPOSE (INCLUDING, WITHOUT LIMITATION, ANY
CLAIM FOR ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING THEREFROM).
LANDLORD HAS NOT MADE, NOR HAS TENANT RELIED UPON ANY REPRESENTATION AS TO
CONDITION, SAFETY OR SECURITY OF THE PREMISES.
7. ALTERATIONS
Tenant may make interior, non-structural alterations in the Premises
which do not affect building systems and which do not exceed Twenty-Five
Thousand Dollars ($25,000) ("Permitted Alterations") without Landlord's consent.
Tenant may not make alterations which are not Permitted Alterations ("Other
Alterations") without Landlord's prior written consent or approval, which
consent or approval shall not be unreasonably withheld, conditioned or delayed.
All alterations made by Tenant shall be made at Tenant's sole cost and expense,
including all costs and expenses incurred in obtaining any required governmental
consents, permits or approvals. Tenant may perform all alterations with
contractors and subcontractors of Tenant's own choosing. Landlord will cooperate
with Tenant's efforts to obtain any governmental permits or approvals or
consents required therefor.
Prior to performing any Other Alterations, Tenant shall furnish
Landlord with plans and specifications, which shall be subject to Landlord's
prior written approval, which shall not be unreasonably withheld, conditioned or
delayed. Landlord shall notify Tenant within ten (10) business days after
receipt of such plans and specifications if Landlord does not approve of them
and shall specify what it finds unacceptable. In such event, Tenant shall cause
the plans and specifications to be revised to remove or correct the work not
approved by Landlord and shall resubmit revised plans and specifications for
approval. If the Landlord does not notify Tenant of its objections within ten
(10) business days after receiving the plans and specifications, Landlord shall
be deemed to have approved them. Tenant shall construct all alterations in
accordance with the plans and specifications approved by Landlord, using new and
first-class materials and in compliance with all applicable laws, rules,
regulations and orders of governmental authorities. Tenant shall obtain and
furnish Landlord with copies of all certificates, permits and approvals relating
to the alterations that may be required by any governmental authority for the
issuance of a certificate of occupancy or other approval of the Premises, or by
the local or national Board of Fire Underwriters or similar bodies having
jurisdiction.
At all times while Tenant and Tenant's contractors and subcontractors
are constructing Other Alterations, they shall, at their sole cost and expense,
effect and maintain or cause to be maintained, with insurance companies
reasonably acceptable to and approved by Landlord, the following insurance
coverages: (a) builder's "all risk" insurance policy (broad form) covering the
full replacement cost of the Alterations and materials and supplies delivered
and/or stored in the Premises for the purpose of being incorporated into the
Alterations, (b) comprehensive general liability insurance in form and amount
reasonably satisfactory to Landlord, (c) workers' compensation coverage in
compliance with the Florida Workers' Compensation Act and employer's liability
insurance with a limit of not less than $1,000,000 per occurrence for any one
accident/disease, and (d) a contractor's equipment floater with limits
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sufficient to replace- all equipment used in conjunction with the Alterations.
All property insurance required under this Section shall contain waivers of
subrogation in favor of Landlord and all liability insurance shall designate
Landlord as an additional insured. Certificates of insurance evidencing
compliance with these insurance requirements shall be delivered to Landlord on
or before commencement of the Other Alterations.
Tenant shall construct at its sole cost and expense any Alterations
with diligence and continuity and in a good and workmanlike manner and shall:
(i) comply with all laws, ordinances and governmental regulations, including the
regulations of any board of fire underwriters in its construction of such
alterations; and (ii) indemnify and hold Landlord harmless from all loss, cost
and expense, including, but not limited to, reasonable attorneys' fees and court
costs through all trial and appellate levels on account of Tenant's construction
of the Alterations or any injury to persons or damage to property occasioned
thereby.
The Tenant shall provide Landlord with all applicable partial releases
of lien executed by contractors, subcontractors and materialmen contemporaneous
with the payment or draw request under Tenant's construction contract. The
Tenant shall obtain and shall provide Landlord with general contractor's final
contractor's affidavit, releases and indemnities contemporaneous with final
payment to be made to the general contractor and all subcontractors and
materialmen.
All alterations, improvements and additions made by Tenant shall
immediately become the property of Landlord and shall remain on the Premises at
the expiration or earlier termination of the Lease, except Landlord, upon
written notice to Tenant, may require that the Tenant remove any such
alterations, improvements and additions made by Tenant upon any termination of
the Lease, whereupon the Tenant shall remove at its sole cost and expense on or
before the termination of this Lease.
Any installations by Tenant on the roof of the building(s) which
comprise a portion of the Premises, or work which might affect the roof must be
accomplished in coordination with Landlord and Landlord's roofing contractor so
as to preserve the roof warranty covering the building(s); any costs arising
from damage to the roof membrane resulting from the activities of Tenant shall
be the responsibility of Tenant.
8. SIGNAGE
Tenant, at its expense and subject to its obtaining any required
governmental permits and approvals, may place, maintain, repair and replace
within the Premises such signs as Tenant deems appropriate or necessary.
Landlord shall cooperate with Tenant's efforts to obtain any permit, approval or
consent necessary or desirable in connection with the installation of any sign.
Landlord shall, at its expense, remove its existing signage from the Premises
within thirty (30) days after written notice from Tenant, failing which Tenant
shall have the right to immediately remove all such signage at Landlord's
expense. Landlord shall reimburse Tenant for the cost of such removal within
thirty (30) days of receipt of documentation from Tenant evidencing the
reasonable cost incurred by Tenant in removing such signage.
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9. PERSONAL PROPERTY
For purposes of this Lease, the term "Tenant's Property" shall mean all
office furniture and equipment, movable partitions, communications equipment,
inventory, and other articles of movable personal property owned or leased by
Tenant and located in the Premises, but shall not include the any permanently
attached fixtures ("Landlord's FF&E"). All Tenant's Property shall be and remain
the property of Tenant throughout the Term of this Lease and may be removed by
Tenant at any time during the Term. All Landlord's FF&E shall be and remain the
property of Landlord throughout the Term of this Lease, unless specifically
purchased by and conveyed to Tenant after the Commencement Date, and may not be
removed from the Premises without Landlord's prior consent. On or prior to the
expiration of this Lease, Tenant shall remove all Tenant's Property from the
Premises without leaving any noticeable damage to the Premises, but shall leave
Landlord's FF&E in the Premises. If Tenant leaves noticeable damage to the
Premises as a result of Tenant's removal of Tenant's Property, or if Tenant has
noticeably damaged Landlord's FF&E (excluding reasonable wear and tear),
Landlord shall give Tenant written notice and Tenant shall have fifteen (15)
days thereafter to remove or repair such damage, after which time, Landlord may
repair such damage and Tenant shall reimburse Landlord for all costs and
expenses reasonably incurred by Landlord in repairing such damage.
Notwithstanding the foregoing, any built-in items placed on the Premises by
Tenant shall become a part of the Premises and the property of Landlord.
10. QUIET ENJOYMENT
Landlord covenants that Tenant shall and may, at all times during the
Term during such period of time as Tenant is current and in good standing of its
obligations under this Lease, peaceably and quietly have, hold, occupy, and
enjoy the Premises, free of any claim or other action by Landlord or anyone
claiming by, through or under Landlord.
11. LIENS
(a) TENANT LIENS. Tenant shall not (i) by any failure to act or by any
act, other than the mere hiring of a material or service provider, allow any
materialman's or construction liens, or (ii) by any act or failure to act allow
any other liens, deeds of trust, mortgages, or other encumbrances, to be placed
on the whole or any portion of the Premises during the Term. If a materialman's
or construction lien shall be filed, Tenant may contest it in good faith but
must, within thirty (30) days after the lien is filed, cause the lien to be
released of record by payment, bond, order of a court of competent jurisdiction
or otherwise. If Tenant fails to release the lien of record within the 30-day
period, Landlord may remove the lien by paying the full amount, bonding the lien
or in any other manner Landlord deems appropriate, without investigating the
validity of the lien and regardless of the fact that Tenant may contest the
propriety or amount of the lien and Tenant, upon demand, shall reimburse
Landlord for all costs incurred by Landlord in connection with such discharge,
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including attorney's fees and disbursements. Notwithstanding anything to the
contrary in this Lease, the interest of Landlord in the Premises shall not be
subject to liens for improvements made by or for Tenant, whether or not the same
shall be made or done in accordance with any agreement between Landlord and
Tenant, and it is specifically understood and agreed that in no event shall
Landlord or the interest of Landlord in the Premises be liable for or subjected
to any mechanic's, materialmen's or laborer's liens for improvements or work
made by or for Tenant. This Lease specifically prohibits the subjecting of
Landlord's interest in the Premises to any mechanic's, materialmen's or
laborer's liens for improvements made by Tenant or for which Tenant is
responsible for payment under the terms of this provision. Tenant shall advise
its contractors, subcontractors, materialmen and any other lienors of this
Provision. In the event any notice or claim of lien shall be asserted of record
against the interest of Landlord in the Premises or Building or the site on
which it is located on account of or growing out of any improvement or work done
by or for Tenant, or any person claiming by, through or under Tenant, for
improvements or work the cost of which is the responsibility of Tenant.
All persons to whom these presents may come are put on notice of the
fact that Tenant shall never, under any circumstances, have the power to subject
the interest of Landlord in the Premises, or any portion of the Premises, to any
mechanics' or materialmen's lien or liens of any kind. All persons who may
hereafter, during the continuance of this Lease, furnish work, labor, services
or materials to the Premises, upon the request or order of Tenant, or any person
claiming under, by or through Tenant, must look wholly to the interest of
Tenant, and not to that of Landlord. Landlord shall be permitted to post on and
affix to the Premises or record in the public records a notice of
non-responsibility therefor.
(b) LANDLORD LIENS. This Lease shall be subject and subordinate to
any mortgage which may now or hereafter affect the Premises, and any renewals,
modifications, consolidations, replacements or extensions thereof, provided that
Landlord shall obtain from its mortgagee a written agreement with Tenant that
provides that so long as Tenant shall not be in default of its obligations under
this Lease beyond any applicable notice and cure period: (a) Tenant shall not be
joined as a defendant in any proceeding which may be instituted to foreclose or
enforce the mortgage, and (b) Tenant's possession and use of the Premises in
accordance with the provisions of this Lease shall not be affected or disturbed
by reason of the subordination of this Lease to, or any modification of or
default, under the mortgage.
(c) ATTORNMENT. In the event that the holder or any successor or
transferee of a holder (collectively, a "Mortgagee") of any ground lease or
underlying lease, mortgage, deed of trust or other lien, encumbrance or
indenture (collectively, a "Mortgage") succeeds to the rights of Landlord under
this Lease, whether through foreclosure, the acceptance of a deed in lieu of
foreclosure or any possession, surrender, assignment, judicial action or any
other action taken by Mortgagee, and in all other matters concerning any
Mortgage, the following shall apply:
(1) Tenant shall attorn to, and be liable to and
recognize Mortgagee or such other party (or such person as Mortgagee or such
other party may direct) as Tenant's new Landlord for the balance of the term of
the Lease, upon and subject to all the terms and conditions of this Lease and
any non-disturbance agreement between Tenant and any such Mortgagee. Such
successor in interest will not be bound by:
(A) any payment of rent for more than one month in advance;
(B) any amendment or modification of this Lease made without its
written consent (provided Tenant is notified in advance in writing of the
existence of such Mortgagee); or
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(C) any claim against Landlord arising prior to the date
on which such successor succeeded to Landlord's interest, provided Tenant is
notified in advance in writing of the existence of such Mortgagee and notice of
such claim has not been provided to Mortgagee.
(d) SELF OPERATIVE. The provisions of paragraph 11(b) and (c)
above will be self-operative and no further instrument of subordination will be
required in order to effect it. Nevertheless, Tenant will execute, acknowledge
and deliver to Landlord, at any time and from time to time, upon demand by
Landlord, such documents as may be reasonably requested by Landlord, any ground
lessor or underlying lessor or any mortgagee, or any holder of a deed of trust
or other instrument described in this Paragraph, to confirm or effect any such
subordination, provided that such instrument also contains nondisturbance
provisions reasonably acceptable to Tenant, consistent with the provisions of
Section 11(c)(2).
Nothing in Section 11(b) or (c) above shall impair the recourse which
Tenant might otherwise have against Landlord, to the extent permitted hereunder,
subject to the limitations of this Lease.
12. INSURANCE
(a) BUILDING INSURANCE. Throughout the Term, Tenant shall keep the
buildings and improvements included in the Premises, as well as Tenant's
personal property and Landlord's FF&E, insured for the "full replacement value"
thereof against loss or damage by perils customarily included under standard
"all-risk" policies with a deductible not in excess of Ten Thousand and 00/100
Dollars ($10,000.00), together with extended coverage, flood, vandalism,
malicious mischief, and hurricane endorsement. Each such policy of insurance
shall provide that the same will not be canceled without at least thirty (30)
days prior written notice to Landlord. On or before the Commencement Date,
Tenant shall deliver to Landlord certificates of insurance, showing that the
insurance required to be maintained pursuant to the foregoing provisions of this
Section 13(a) is in force and will not be modified or canceled without thirty
(30) days prior written notice being furnished to Landlord. Thereafter, not less
than thirty (30) days prior to the expiration or termination of each such
policy, Tenant shall furnish to Landlord certificates showing renewal of, or
substitution for, policies that expire or are terminated during the Term of the
Lease. In the event of any casualty the insurance proceeds shall be made
available for restoration purposes as provided in SECTION 15 hereof.
(b) TENANT'S LIABILITY INSURANCE. Throughout the Term, Tenant
shall maintain commercial general liability insurance, including a contractual
liability endorsement, and personal injury liability coverage in respect of the
Premises and the conduct or operation of its business therein, naming Landlord
as an additional insured, with a combined single limit for bodily injury and
property damage liability of not less than $2,000,000 in any one occurrence.
Each such policy of insurance shall provide that the same will not be canceled
without at least thirty (30) days prior written notice to Landlord. On or before
the Commencement Date, Tenant shall deliver to Landlord certificates of
insurance, showing that the insurance required to be maintained pursuant to the
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foregoing provisions of this Section 13(b) is in force and will not be modified
or canceled without thirty (30) days prior written notice being furnished to
Landlord. Thereafter, not less than thirty (30) days prior to the expiration or
termination of each such policy, Tenant shall furnish to Landlord certificates
showing renewal of, or substitution for, policies that expire or are terminated
during the Term of the Lease.
(c) OTHER INSURANCE. During the Term, Tenant shall, at its
expense, also secure and maintain the following policies of insurance to wit:
(i) workers' compensation insurance as required by law; (ii) during the course
of construction of any improvements, including, but not limited to, Alterations
and until completion thereof, builder's risk insurance on a "all risk" basis on
a comprehensive value form for replacement value covering the interest of
Landlord and Tenant (and their respective contractors, subcontractors and
Landlord's mortgagees) and all work incorporated into the Premises and all
materials and equipment in or about the Premises; (iii) business interruption
insurance with respect to the Premises in an amount of coverage reasonably
sufficient to pay, if necessary, the Rent and other charges under this Lease for
the period of time not less than one (1) year. Landlord (and its mortgagees)
shall be additionally named insured under any such policies procured by Tenant.
(d) REQUIREMENTS. All such policies required to be maintained
hereunder shall be written by insurance companies licensed to do business in the
State of Florida and having a rating of "A" Class IX or better by Bests
Insurance Key Rating Guide published by A.M. Best Company. All insurance
provided for in this Section 13 shall be effected under valid and enforceable
occurrence insurance policies issued by insurers of recognized responsibility
which are licensed to do business in the State of Florida (and reasonably
acceptable to Landlord). Each policy of insurance shall have attached thereto an
endorsement that such policy shall not be cancelled or materially changed
without at least thirty (30) days' prior written notice to Landlord, and any
mortgagee of the Premises, and that no act or thing done by Tenant shall
invalidate the policy as against Landlord or any mortgagee of the Premises.
Before the Commencement Date, the Tenant obtaining such insurance shall deliver
certificates thereof (with receipts or other evidence of full payment of the
premiums thereon and a copy of such policy) to the Landlord, and thereafter, not
less than thirty (30) days prior to the expiration of each insurance policy
required to be furnished pursuant hereto, the party obtaining the same shall
deliver to the other party a renewal certificate thereof, together with receipts
therefor. Tenant and Landlord shall cooperate with each other in expediting the
obtaining of insurance recoveries. All such insurance shall also contain such
other endorsements as any first mortgagee of the Premises shall reasonably
request.
(e) SUBROGATION. Landlord and Tenant each hereby release each
other from liability to the extent of insurance maintained or required to be
maintained hereunder. Landlord and Tenant shall each obtain from their
respective insurers under all policies of insurance maintained by either of them
at any time during the Term hereof insuring or covering the Premises, a waiver
of all rights of subrogation which the insurer of the party might otherwise
have, if at all, against the other party.
13. INDEMNIFICATION
(a) TENANT'S INDEMNIFICATION. Except as may otherwise be provided
in this Lease, Tenant shall indemnify and hold harmless Landlord, its employees,
officers, directors, managers, agents, shareholders, partners or other owners
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from and against any and all third-party claims arising from or in connection
with: (i) the conduct or management of the Premises or of any business thereon,
or any condition created in or about the Premises during the term of this Lease,
unless created by Landlord, its employees, officers, directors, managers,
agents, shareholders, partners or other owners, invitees or contractors, or any
person or entity acting at the instance of Landlord; (ii) any act, omission or
negligence of Tenant or any of its subtenants or licensees or its employees,
officers, directors, managers, agents, shareholders, partners or other owners,
invitees or contractors; or (iii) any accident or injury or damage whatever, not
caused by Landlord or any person or entity acting at the instance of Landlord
occurring in, at or upon the Premises.
(b) LANDLORD'S INDEMNIFICATION. Except as may otherwise be
provided in this Lease, Landlord shall indemnify and hold harmless Tenant, its
employees, officers, directors, managers, agents, shareholders, partners or
other owners from and against any and all third-party claims arising from or in
connection with any act, omission or negligence of Landlord or any of its
employees, managers, agents or contractors pertaining to the Premises, unless
caused by the negligence or misconduct of Tenant.
14. ENVIRONMENTAL MATTERS
(a) TENANT OBLIGATIONS. During the Initial Term and any Extension
Term, Tenant shall not do anything during the Term that violates any
Environmental Law (defined below). Tenant shall indemnify, defend and hold
harmless Landlord, its employees, officers, directors, managers, agents,
shareholders, partners or other owners, from and against any and all losses,
claims, suits, damages, judgments, penalties and liability including, without
limitation, (i) all out-of-pocket litigation costs and reasonable attorneys'
fees, (ii) all damages (including consequential damages), directly or indirectly
arising out of the use, generation, storage, release or threatened release or
disposal of Hazardous Materials by Tenant or any of its subtenants or licensees
or its employees, officers, directors, managers, agents, shareholders, partners
or other owners, invitees or contractors, and (iii) the cost of and the
obligation to perform any required or necessary repair, clean-up, investigation,
removal, remediation or abatement, and the preparation of any closure or other
required plans, to the full extent that any of the foregoing is attributable to
the use, generation, storage, release or threatened release or disposal of
Hazardous Materials by Tenant or any of its subtenants or licensees or its
employees, officers, directors, managers, agents, shareholders, partners or
other owners, invitees or contractors.
(b) LANDLORD OBLIGATIONS. Landlord shall indemnify, defend and
hold harmless Tenant, its employees, officers, directors, managers, agents,
shareholders, partners or other owners, from and against any and all losses,
claims, suits, damages, judgments, penalties, and liability including, without
limitation, all (i) out-of-pocket litigation costs and reasonable attorneys'
fees, (ii) all damages, including consequential damages, directly or indirectly
arising out of the release or disposal of Hazardous Materials on, under or in
the Premises, or any violation of Environmental Laws, caused by Landlord, or
which occurred prior to the Commencement Date of this Lease.
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(c) DEFINITION. For the purpose of this Section 15, Hazardous
Materials shall include but not be limited to substances defined as "hazardous
substances," "hazardous materials," or "toxic substances" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601, ET SEQ.; the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801 ET SEQ.; the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, ET SEQ.; the Occupational Safety and Health Act of 1970, as
amended; the common law; and any and all state, local or federal laws, rules,
regulations, policies, guidances and orders pertaining to environmental, public
health or welfare matters, as the same may be amended, interpreted or
supplemented from time to time (collectively, the "Environmental Laws"). Any
terms mentioned in this Lease which are defined in any applicable Environmental
Laws shall have the meanings ascribed to such terms in such laws, provided,
however, that if any such laws are amended so as to broaden any term defined
therein, such broader meaning shall apply subsequent to the effective date of
such amendment.
(d) SURVIVAL. The provisions of this Section 15 shall survive
the expiration or sooner termination of this Lease.
15. DAMAGE AND CONDEMNATION
(a) CASUALTY. In connection with any casualty pertaining to the
Premises:
(1) In the event that the improvements or any portion
thereof, shall be damaged or destroyed by fire, the elements or other casualty,
whether such damage or destruction renders the Premises unfit for the use
contemplated hereby or not, this Lease shall continue in full force and effect,
all Rent and Additional Rent due under this Lease shall continue to be promptly
paid by Tenant; and Tenant, at Tenant's sole cost and expense, and as
expeditiously as possible, shall restore, repair and replace the Premises and
all portions thereof to a condition at least as good as existed immediately
prior to such damage or destruction.
(2) The building insurance proceeds under the policies
maintained by Tenant shall be applied toward the cost of all repairs and
restoration Tenant is required to make under this Section 15.
(3) If the Premises are so damaged by fire, explosion,
wind storm or other casualty as to be made untenable, whereupon fifty percent
(50%) or more of the improvements on such Premises are damaged during the last
two (2) lease years of the term, then the Tenant may elect to terminate this
Lease upon giving written notice thereof to Landlord within thirty (30) business
days of such casualty, whereupon such termination Tenant shall pay to Landlord
within thirty (30) calendar days after giving such written notice of termination
in currently available funds a sum equal to the equal fair market value of the
Premises immediately prior to the casualty less the sums payable to Landlord as
property damage insurance proceeds (not including any business interruption or
loss of rent payments payable by reason of such casualty) and all proceeds
payable under such insurance shall be paid to Landlord.
(b) CONDEMNATION. In connection with any condemnation of the
Premises:
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(1) If at any time during the Term of this Lease all or
substantially all of the Premises shall be taken in the exercise of the power of
eminent domain by any sovereign, municipality or other public or private
authority, then this Lease shall terminate on the date of vesting of title in
such authority and any prepaid Rent shall be apportioned as of said date.
Substantially all of the Premises shall be deemed to have been taken if, in
Landlord's and Tenant's reasonable judgment, the remaining portion of the
Premises shall not be of sufficient size to permit the construction and
operation of buildings thereon substantially of a size of the existing
buildings.
(2) If less than all or substantially all of the Premises
shall be taken in the exercise of the power of eminent domain by any sovereign,
municipality or other public or private domain by any sovereign, municipality or
other public or private authority, then this Lease shall continue in force and
effect and Tenant shall proceed with reasonable diligence at its own expense to
carry out any necessary repairs and restoration so that the remaining portion of
the Premises shall constitute a complete structural unit or units which can be
operated on an economically feasible basis under the provisions of this Lease.
All of such repair and restoration shall be carried out by Tenant in strict
accordance with the restoration provisions of Article 15(c) of this Lease. The
award or awards for any partial taking shall be paid to Landlord and shall be
disbursed for the repair and restoration of the Premises in accordance with
Article 15(c).
(3) The award or awards for any taking of all or
substantially all of the Premises shall be paid to Landlord, provided that
Tenant shall have the right to pursue its own separate award for the value,
immediately prior to such taking, of loss of equipment, loss of business, loss
of its leasehold interest, and moving expenses, to the extent the foregoing does
not reduce any award to be received by Landlord.
(4) If the temporary use of the whole or any part of the
Premises shall be taken at any time during the Term of this Lease in the
exercise of the power of eminent domain by any sovereign, municipality or other
authority, the Term of this Lease shall not be reduced or affected in any way
and Tenant shall continue to pay in full the Rent, and the entire award for such
taking shall be paid to Landlord, to be applied and disposed of as hereinafter
provided. Landlord shall credit against the next Rent payment due from Tenant
that portion of said award paid for the use and occupancy of the Premises. That
portion of such award which compensates for physical damage to the Premises
occasioned by such taking shall be held by Landlord, and used to reimburse
Tenant for costs of restoration and repair of the portion of the Premises so
damaged. Tenant shall perform all of such restoration and repair in accordance
with the terms of Section 15(c).
(c) ESCROW. In connection with Tenant's repair after damage by
casualty or condemnation, the following shall be applicable:
(1) Whenever Tenant shall be required to carry out any
work of demolition, restoration, repair, replacement or rebuilding pursuant to
this Lease after fire or other casualty loss or a condemnation, Landlord or a
depository designated by Landlord shall be entitled to receive the applicable
insurance proceeds and condemnation award or awards for reimbursement to the
Tenant for the required work, to be disbursed by Landlord in its reasonable
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discretion as construction progresses; provided, however, that Landlord shall be
entitled to apply all or any portion of such proceeds to cure Tenant's defaults
hereunder prior to the commencement of such work and Landlord shall be entitled
to any surplus thereof.
(2) Tenant shall obtain Landlord's prior written approval
(not to be unreasonably withheld) or delayed of Tenant's plans and budget, and
shall provide Landlord with true and correct certified copies of all legally
required permits and/or other approvals for construction, and, with evidence,
reasonably satisfactory to Landlord, that Tenant has sufficient funds earmarked
for such work to complete the same (the completion of which is hereby expressly
guaranteed by Tenant). All work shall be carried out in accordance with the
terms of Article 7, including, without limitation, the terms thereof which
require the work to be performed in a good and workmanlike manner, in compliance
with all applicable laws and ordinances, and shall be completed lien-free and in
compliance with all title, zoning, building, and other applicable restrictions.
If at any time Tenant shall fail or neglect to supply sufficient workmen or
sufficient materials of proper quality, or fail in any other respect to
prosecute such work of demolition, restoration, repair, replacement or
rebuilding with diligence and promptness, then Landlord may give to Tenant
written notice of such failure or neglect, and if such failure or neglect
continues for ten (10) days after such notice, then, if Landlord so requests in
Landlord's sole discretion, Tenant shall assign all construction contracts for
the reconstruction to Landlord, and Landlord, in addition to all other rights
which Landlord may have, may enter upon the Premises, provide labor and/or
materials, cause the performance of any contract and/or do such other acts and
things as Landlord may deem advisable to prosecute such work, in which event
Landlord shall be entitled to reimbursement of its costs and expenses out of any
insurance proceeds, condemnation award or awards and any other monies held by
Landlord (or such depository) for application to the cost of such work, in
accordance with the restoration provisions hereof. All costs and expenses
incurred by Landlord in carrying out such work for which Landlord is not
reimbursed out of insurance proceeds, condemnation award or awards or other
monies held by Landlord (or such depository), shall be borne by Tenant and shall
be payable by Tenant to Landlord as Additional Rent upon demand, which demand
may be made by Landlord from time to time as such costs and expenses are
incurred, in addition to any or all damages to which Landlord shall be entitled
hereunder.
(3) Unless this Lease is terminated, of the insurance
proceeds made available to Landlord shall be remitted by Landlord to a bank or
trust company selected by Landlord in reimbursement of Landlord or Tenant, as
the case may be, for the cost of repair and reconstruction, as the same
progresses and any excess remaining after completion of the repair and
reconstruction shall be paid to Landlord, as Landlord's sole and absolute
property; and
16. DEFAULT BY LANDLORD
Notwithstanding any other provision of this Lease, if Landlord by any
act or omission is in breach or default of this Lease and such breach or default
continues for a period of thirty (30) consecutive days after Tenant notifies
Landlord in writing thereof, or such default is not capable of being cured
within such thirty (30) and if Landlord shall not have commenced to cure same
within such thirty (30)-day period and is preceding to cure same diligently
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within a reasonable period of time, not to exceed an additional ninety (90)
days, Tenant shall have all remedies available to Tenant at law or in equity
against Landlord but Tenant shall not be entitled to punitive or consequential
damage.
17. DEFAULT BY TENANT
(a) EVENTS OF DEFAULT. If:
(i) Tenant shall default in the due and punctual payment
of the Rent, insurance premiums, impositions or any other amounts or rents due
under this Lease or any part thereof, and such default shall continue for
fifteen (15) days after written notice to Tenant (provided that with respect to
the requirements of Section 21 hereof, no cure period shall be applicable); or
(ii) Tenant shall default in the performance or in
compliance with any of the other covenants, agreements or conditions contained
in this Lease and such default shall not be cured within thirty (30) days after
receipt by Tenant of written notice from Landlord or, if such default is not
capable of being cured within thirty (30) days, then if Tenant shall not have
commenced to cure the same within such thirty (30) day period and proceeded
diligently to cure the same within a reasonable period not to exceed an
additional ninety (90) days; or
(iii) Tenant shall file a voluntary petition in bankruptcy
or under Chapter VII or XI of the Federal Bankruptcy Act or any similar law,
state or federal, whether now or hereafter existing, or an answer admitting
insolvency or inability to pay its debts, or fail to obtain a vacation or stay
of involuntary proceedings within ninety (90) days after the involuntary
petition is filed; or Tenant shall be adjudicated a bankrupt, or a trustee or
receiver shall be appointed for Tenant or for all of its property or the major
part thereof in any involuntary proceedings, or any court shall have taken
jurisdiction of the property of Tenant or the majority part thereof in any
involuntary proceeding for reorganization, dissolution, liquidation or winding
up of Tenant, and such trustee or receiver shall not be discharged or such
jurisdiction relinquished or vacated or stayed on appeal or otherwise within
ninety (90) days; or Tenant shall make an assignment for the benefit of its
creditors;
(b) LANDLORD'S REMEDIES UPON DEFAULT. If any such event referred
to in clauses 17(a)(i) through (a)(iii) above (any such event being an "Event of
Default"), Landlord shall have the remedies with respect to the Premises as set
forth below:
Upon the occurrence of an Event of Default by Tenant, then
Landlord shall be entitled to the following remedies and any other remedies
granted by law, or by equity, all or any of which shall be available to Landlord
upon default except as otherwise provided:
(i) Landlord may terminate this Lease by giving written
notice of termination to Tenant, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to so surrender the
Premises, then Landlord may, without prejudice to any other remedy it has for
possession of the Premises or arrearages in rent or other damages, re-enter and
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take possession of the Premises and expel or remove Tenant and any other person
occupying the Premises or any part thereof, in accordance with applicable law;
no such re-entry shall be viewed as an election of remedies;
(ii) Landlord may re-enter and take possession of the
Premises without terminating the Lease in accordance with applicable law, and
relet the Premises and apply the Rent received to the account of Tenant. In the
event Landlord so re-enters and takes possession of the Premises as set forth
above, Landlord agrees to use reasonable efforts to relet the Premises for a
commercially reasonable rate at the time of such reletting. No reletting by
Landlord is considered to be for Landlord's own account unless Landlord has
notified Tenant in writing that this Lease has been terminated. In addition, no
such reletting is to be considered an acceptance of Tenant's surrender of the
Premises unless Landlord so notifies Tenant in writing.
(iii) If this Lease is terminated by Landlord, Landlord
shall be entitled to recover from Tenant as damages the worth at the time of
such termination of the excess, if any, of the amount of rent reserved in this
Lease for the balance of the term of this Lease (which shall be calculated on
the then current rent under this Lease), in excess of the then reasonable rental
value of the Premises for the same period, plus all costs and expenses of
Landlord, including court costs, reasonable attorneys' fees, and reletting
costs, caused by Tenant's default.
(iv) If Tenant shall default in making any payment
required to be made by Tenant, or shall default in the performance of any
obligations of Tenant under this Lease, Landlord may, but shall not be obligated
to, make such payment or, on behalf of the Tenant, expend such sums as may be
necessary to perform such obligations. All sums so expended by Landlord shall
bear interest at the Stipulated Rate, and shall be repaid by Tenant to Landlord
on demand as additional rent due pursuant to the terms of this Lease. No such
payment or expenditure by Landlord shall be deemed a waiver of Tenant's default,
nor shall it affect any other remedy of Landlord by reason of such default.
(v) In the event of a breach by Tenant or Landlord of any
of the terms, covenants, conditions or agreements hereof, Landlord or Tenant
shall have the right of injunction to restrain the same and the right to invoke
any remedy allowed by law or in equity or by statute or otherwise as if specific
remedies were not herein provided, subject to the limitations otherwise provided
in this Lease.
(vi) The rights and remedies given to Landlord and Tenant in
this Lease are distinct, separate and cumulative, and no one of them, whether or
not exercised by Landlord or Tenant, shall be deemed to be in exclusion of any
of the others herein or now or hereafter existing by law or in equity or by
statute or otherwise, except to the extent otherwise provided herein. The
exercise, or beginning of the exercise, by Landlord or Tenant of any one or more
of the rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by Landlord or Tenant of any or all other rights
or remedies.
(vii) All costs incurred by either party in connection with
any amounts and damages owing by the other party pursuant to the provisions of
this Lease or in connection with any effort to enforce any provision of this
Lease, including reasonable attorneys' fees and court costs from the date any
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such matter is turned over to an attorney (including on appeal), whether or not
one or more actions are commenced, shall be recoverable by the prevailing party.
18. SURRENDER; HOLDOVER
At the end of the Term or upon termination of this Lease, whichever
first occurs, Tenant shall quit and surrender possession of the Premises to
Landlord in good operating condition, normal wear and tear excepted. Tenant
shall not be obligated to remove any alterations to the Premises that were
approved by Landlord unless Landlord shall notify Tenant of Landlord's desire
for such alteration to be removed. If Tenant remains in possession of the
Premises after the end of the Term, then Tenant shall be deemed to be a tenant
from month to month only, under all of the same terms and conditions of this
Lease then in effect, except as to the duration of the Term and Base Rent, which
shall be in the amount of 150% of the monthly Base Rent payable by Tenant to
Landlord during the last month of the Initial Term. In addition, Tenant shall
also be responsible for all reasonable damages, costs and expenses incurred by
Landlord during such period of holdover, which are attributable directly to
Tenant's continued possession of the Premises.
19. BROKERAGE
Landlord and Tenant each represents and warrants to the other that it
had no conversations, negotiations or agreements with any broker or finder
concerning the consummation of this Lease. Landlord and Tenant shall each
indemnify and hold harmless the other from and against any claims for brokerage
commissions or finder's fees (together with all related expenses, including,
without limitation, reasonable attorneys' fees) resulting from or arising out of
any conversations or negotiations had by it with, or any agreement between it
and, any broker or finder in connection with this Lease.
20. ASSIGNMENT AND SUBLETTING
Tenant shall not assign this Lease or sublet all or any portion of the
Premises or pledge or mortgage Tenant's interest in this Lease without
Landlord's prior, written consent, which consent shall not be unreasonably
withheld, conditioned or delayed and pursuant to an assignment/sublet agreement
in form reasonably acceptable to Landlord. In the event of an assignment or
subletting of all or any portion of the Premises (other than with respect to an
affiliate controlled by Tenant or in connection with a merger or consolidation
of Tenant), then the Tenant shall, in consideration therefore, pay Landlord in
Additional Rent an amount equal to one-half of the "Assignment Profit" (as
hereinafter defined) and one-half of the "Sublease Profit" (as hereinafter
defined) as the case may be. Notwithstanding any assignment of Tenant's interest
under this Lease or Tenant's subletting of all or any portion of the Premises,
Tenant shall not be released and shall remain primarily liable for all of the
obligations required to be performed by the tenant under this Lease. In
addition, no consent by Landlord shall be required in connection with an
assignment, sublet or other transfer of all or any portion of the Premises or
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Tenant's interest in this Lease to an affiliate controlled by Tenant, or in
connection with a merger or consolidation of Tenant. This Lease contains no
provision restricting, purporting to restrict or referring in any manner to (a)
a change in control or change in stockholders, directors, management or
organization of Tenant, or any subsidiary, affiliate or parent of Tenant, (b) to
the issuance, sale, purchase, public offering, disposition or recapitalization
of the capital stock of Tenant, or any subsidiary, affiliate or parent of
Tenant, or (c) to a merger, amalgamation or consolidation of Tenant or Tenant's
parent or any subsidiary, affiliate or parent of Tenant or Tenant's parent.
The term "Assignment Profit" shall mean an amount equal to all sums and
other considerations paid to Tenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture, furnishings or
other personal property, less, in the case of a sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of Tenant's
federal income tax returns).
The term "Sublease Profit" shall mean in any Lease Year of the Term of
this Lease: (i) any rents, additional charges or other consideration payable
under the sublease to Tenant by the subtenant which is in excess of the Base
Rent accruing during such Lease Year of the Term of this Lease in respect to the
subleased space (at the rate per square foot payable by Tenant hereunder)
pursuant to the terms hereof; and (ii) all sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture or other
personal property, less, in the case of the sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of Tenant's
federal income tax returns, which net unamortized amount shall be deducted from
the sums paid in connection with such sale in equal monthly installments over
the balance of the term of the sublease (each such monthly deduction to be in an
amount equal to the quotient of the net unamortized amount, divided by the
number of months remaining in the term of this Lease). The sums payable under
this Section 20 shall be paid to Landlord as and when paid by the subtenant to
Tenant.
21. PARKING
As of the date of this Lease, Landlord has been paying $29,812.50 to
the City of Fort Lauderdale (the "City") on a monthly basis in exchange for the
City's delivery to Landlord on a monthly basis of 625 parking passes, each of
which entitles the holder to park for one month at no additional charge in a
parking space in a designated area of the City parking garage located
immediately east of the Premises. Landlord has no formal written agreement with
the City regarding this arrangement. During the Term, for as long as the City
continues to provide such parking passes for the Premises, Tenant shall continue
to purchase as many parking passes as the City will sell to Tenant which shall
be for the exclusive use of Tenant. Tenant agrees to pay the City for the
parking passes and obtain the same by the fifteenth (15th) day of each month,
and provide notice to Landlord as to the number and cost of all such passes
obtained by the twentieth (20th) of each month prior to the month such passes
are due, Tenant will provide a receipt from the City evidencing the payment for
such spaces, upon the request of Landlord. Unless Landlord elects otherwise
(which election shall beat the sole discretion of Landlord and upon 24 hours
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written notice to Tenant), Tenant will continue to pay the City for the passes
on a monthly basis, and Tenant will pick up the passes from the City on a
monthly basis. If during the Term hereof Landlord elects by written notice to
Tenant to assume full responsibility for obtaining such parking passes, Landlord
will purchase such parking passes from the City and immediately provide all of
them to Tenant for its exclusive use, provided Tenant reimburses Landlord for
the actual cost of the passes (which amounts shall be deemed Additional Rent
hereunder) within ten (10) days of demand. Landlord makes no representations or
warranties as to the continued availability of any of such parking passes from
the City in the future nor as to the number or cost of such passes or the
location within the City garage designated for use by the pass holders. Tenant
releases and agrees not to seek recourse against Landlord on account of any
loss, cost or expense incurred by Tenant in the event the City no longer makes
some or all of the parking passes available for use by occupants of the
Premises. In addition, Tenant shall not be held liable or responsible by
Landlord or its mortgagee or any other party for any failure by the City to
issue such parking spaces to Tenant, either in whole or in part, provided Tenant
(if obligated to do so) attempted to obtain such parking passes available as set
forth herein.
24. MISCELLANEOUS
(a) GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the State of Florida.
(b) CERTAIN DEFINITIONS.
"INCLUDING" means including without limitation.
"TENANT INDEMNITEE" means any individual, a partnership, a
corporation, an association, a limited liability company, a joint stock company,
a trust, a joint venture, an unincorporated organization, or a governmental
entity (or any department, agency, or political subdivision thereof), or any
other entity recognized under the laws of any state (i) of which Tenant is a
direct or indirect subsidiary of any tier, or that directly or indirectly
controls Tenant, (ii) that is a direct or indirect subsidiary of any tier of
Tenant or that Tenant directly or indirectly controls, or (iii) that is under
direct or indirect common control with Tenant, and all officers, directors, and
representatives thereof.
(c) INDEMNIFICATION MATTERS INVOLVING THIRD PARTIES. With respect
to the obligation of either party to indemnify pursuant to this Lease:
(i) If any third party shall notify any person or entity
entitled to indemnification under this Lease (the "Indemnified Party") with
respect to any matter (a "Third Party Claim") which may give rise to a claim for
indemnification against another party (the "Indemnifying Party"), then the
Indemnified Party shall promptly notify the Indemnifying Party thereof in
writing; provided, however, that no delay on the part of the Indemnified Party
in notifying the Indemnifying Party shall relieve the Indemnifying Party from
any obligation hereunder unless, and then solely to the extent, the Indemnifying
Party thereby is prejudiced.
(ii) An Indemnifying Party will have the right to defend
the Indemnified Party against the Third Party Claim with counsel of its choice
satisfactory to the Indemnified Party so long as (A) the Indemnifying Party
notifies the Indemnified Party in writing, within fifteen (15) days after the
Indemnified Party has given notice of the Third Party Claim, that the
Indemnifying Party will indemnify the Indemnified Party from and against the
entirety of any adverse consequences the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of, or caused by the Third
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Party Claim, (B) the Indemnifying Party provides the Indemnified Party with
evidence acceptable to the Indemnified Party that the Indemnifying Party will
have the financial resources to defend against the Third Party Claim and fulfill
its indemnification obligations hereunder, (C) the Third Party Claim involves
only money damages and does not seek an injunction or other equitable relief,
(D) settlement of, or an adverse judgment with respect to, the Third Party Claim
is not, in the good faith judgment of the Indemnified Party, likely to establish
a precedential custom or practice adverse to the continuing business interests
of the Indemnified Party and (E) the Indemnifying Party conducts the defense of
the Third Party Claim actively and diligently.
(iii) So long as the Indemnifying Party is conducting the
defense of the Third Party Claim in accordance with clause (ii) above, (A) the
Indemnified Party may retain separate co-counsel at its sole cost and expense
and participate in the defense of the Third Party Claim, (B) the Indemnified
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent of the
Indemnifying Party, not to be withheld unreasonably, and (C) the Indemnifying
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent of the
Indemnified Party, not to be withheld unreasonably.
(iv) If, in the reasonable judgment of the Indemnified
Party, any of the conditions in clause (ii) above is or becomes unsatisfied,
however, (A) the Indemnified Party may defend against, and consent to the entry
of any judgment or enter into any settlement with respect to, the Third Party
Claim in any manner it may deem appropriate (and the Indemnified Party need not
consult with, or obtain any consent from, any Indemnifying Party in connection
therewith), (B) the Indemnifying Party will reimburse the Indemnified Party
promptly and periodically for the costs of defending against the Third Party
Claim (including attorneys' fees and expenses), and (C) the Indemnifying Party
will remain responsible for any damages, penalties, fines, costs and expenses,
including attorney's fees, the Indemnified Party may suffer resulting from,
arising out of, relating to, or caused by the Third Party Claim to the fullest
extent provided in this Lease.
(d) CONSENTS AND APPROVALS. If, pursuant to any provision of this
Lease, the consent or approval of either party is required to be obtained by the
other party, then, unless otherwise provided herein, the party whose consent or
approval is required shall not unreasonably withhold, condition or delay such
consent or approval.
(e) RIGHTS AND REMEDIES. All rights and remedies of either party
expressly set forth herein are intended to be cumulative and not in limitation
of any other right or remedy set forth herein or otherwise available to such
party at law or in equity. Notwithstanding the foregoing, in no event shall
either party be liable to the other for consequential or punitive damages,
except as otherwise provided in this Lease.
(f) NO WAIVER. The failure of either party to seek redress for a
breach of, or to insist upon the strict performance of any covenant or condition
of this Lease, shall not prevent a subsequent act which would have originally
constituted a breach from having all the force and effect of an original breach.
The receipt by Landlord of Rent with knowledge of the breach of any covenant of
this Lease by Tenant shall not be deemed a waiver of such breach and no
provision of this Lease shall be deemed to have been waived by Landlord unless
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such waiver is in writing and signed by Landlord. The payment by Tenant of Rent
with knowledge of the breach of any covenant of this Lease by Landlord shall not
be deemed a waiver of such breach and no provision of this Lease shall be deemed
to have been waived by Tenant unless such waiver is in writing and signed by
Tenant.
(g) SUCCESSORS AND ASSIGNS. Each and all of the terms and
agreements herein contained shall be binding upon and inure to the benefit of
the parties hereto, and their heirs, legal representatives, successors and
assigns. Any sale or transfer of the Premises by Landlord during the Term shall
be made by an instrument that expressly refers to this Lease as a burden upon
the Premises.
(h) RECORDING. Tenant may not record this Lease. At Tenant's
request, Landlord will cooperate with Tenant in the execution and recording of a
memorandum of lease in the form attached hereto as EXHIBIT "C" ("Memorandum").
Upon any termination of this Lease, Tenant agrees that it will execute such
documents as Landlord may request evidencing that this Lease has been terminated
and canceling the Memorandum of record. The Tenant does hereby indemnify and
hold the Landlord harmless for any loss, cost or expense, including, but not
limited to, attorneys' fees and court costs through all trial and appellate
levels as a result of Tenant's breach of its obligations set forth in this
paragraph. The provisions of this paragraph shall survive any termination of
this Lease.
(i) NOTICES. All notices required hereunder shall be in writing
and shall be effective when delivered to the address set forth below (or to such
other addresses as either party may subsequently designate).
(i) if to Tenant to:
ANC Rental Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Corporate Real Estate
with a copy (which shall not constitute notice) to:
Akerman, Senterfitt & Xxxxxx, P.A.
Las Olas Centre II
000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx
(ii) if to Landlord:
AutoNation USA Corporation
000 X.X. 0xx Xxxxxx, 00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Corporate Real Estate
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with a copy (which shall not constitute notice) to:
AutoNation, Inc.
000 X.X. 0xx Xxxxxx, 00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Real Estate Legal Department
Telecopy: (000) 000-0000
(j) ENTIRE AGREEMENT; MODIFICATIONS. This Lease contains the entire
agreement between the parties concerning the matters set forth herein and may
not be modified orally or in any manner other than by an agreement in writing
signed by all the parties hereto or their respective successors in interest.
Further, this Lease supersedes any and all prior lease(s) for the Premises that
may have been entered into by the parties.
(k) JOINT AND SEVERAL OBLIGATIONS. If Landlord includes more than one
person or entity, the obligations shall be joint and several of all such persons
and entities.
(l) RADON DISCLOSURE. The following disclosure is required by Florida
law: "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 over 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 your county health unit."
(m) ESTOPPEL CERTIFICATE. Each party agrees, at any time and from time
to time as requested by the other party, or as requested by Landlord's mortgagee
or purchaser of the Premises, to execute and deliver to the other a statement
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same are in full force and effect as
modified and stating the modifications), certifying the dates to which the Base
Rent and Additional Rent have been paid, stating whether or not to the knowledge
of such party the other party is in default in performance or any of its
obligations under this Lease, and, if so, specifying each such default, and
stating whether or not any event has occurred which, with the giving of notice
or passage of time, or both, would constitute such a default, and, if so,
specifying each such event. Tenant also shall include in any such statements
such other information concerning this Lease as Landlord, its mortgagee or
potential purchaser of the Premises may reasonably request.
(n) ATTORNEYS' FEES. In the event that at any time during the Term of
this Lease either Landlord or Tenant shall institute any action or proceeding
against the other relating to the provisions of this Lease, or any default
hereunder, the unsuccessful party in such action or proceeding agrees to
reimburse the successful party for the reasonable expenses of attorneys' fees
and paralegal fees and disbursements incurred therein by the successful party.
Such expenses incurred prior to trial and at all levels of appeal and post
judgment proceedings.
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(o) LIMITATION OF RIGHT OF RECOVERY. In the event of a breach or
default by Landlord of any of its obligations under this Lease, Tenant shall
look solely to Landlord's equity interest in the Premises for the satisfaction
of Tenant's remedies. It is specifically understood and agreed that there shall
be no personal liability of Landlord or any member, director, officer,
shareholder, partner, trustee, beneficiary, employee or agent of Landlord with
respect to any of the covenants, conditions or provisions of this Lease.
(p) PAYMENT OR PERFORMANCE. Landlord shall have the right, upon ten
(10) days prior written notice to Tenant (or without notice in case of emergency
or in order to avoid any fine, penalty, or cost which may otherwise be imposed
or incurred, or without notice given the circumstances in connection with the
issuance of parking passes pursuant to this Lease), to make any payment or
perform any act required of Tenant under any provision in this Lease, and in
exercising such right, to incur necessary and incidental costs and expenses,
including reasonable attorney's fees. Nothing herein shall imply any obligation
on the part of Landlord to make any payment or perform any act required of
Tenant, and the exercise of the right to do so shall not constitute a release of
any obligation, waiver of any default or obligation of Landlord to make any
similar payment or perform any similar act in the future. All payments made, and
all costs and expenses incurred in connection with Landlord's exercise of the
right set forth in this Section, shall be reimbursed by Tenant within ten (10)
days after receipt of a xxxx setting forth the amounts so expended, together
with interest at the Stipulated Rate from the date such sums are incurred by
Landlord. Any such payments, costs and expenses made or incurred by Landlord
shall be treated as Additional Rent owed by Tenant.
(q) ACCESS: Landlord and its agents shall have the right, upon
reasonable prior notice to Tenant, to enter upon the Premises for the purpose of
making any repairs therein or thereto which are considered reasonably necessary
by Landlord, in such a manner as not to unreasonably interfere with Tenant in
the conduct of Tenant's business on the Premises; and in addition, Landlord and
its agents shall have the right to enter the Premises at any time in cases of
emergency, upon providing Tenant such reasonable notice given the circumstances
of the emergency. Upon reasonable prior notice to Tenant and during normal
business hours, Landlord and its agents shall have the right to enter and/or
pass through the Premises to examine the Premises and show them to prospective
purchasers or mortgagees of the Premises, provided all such entries set forth
herein by Landlord, its agents or prospective Purchasers or mortgagees shall be
at the sole liability of Landlord, and shall be conducted in such a manner so as
not to interfere with Tenant's use and enjoyment of the Premises.
(r) NOTICE TO MORTGAGEE. Upon the prior written request of Landlord,
Tenant shall provide simultaneous notice to the holder of any mortgage on the
Premises of any notice claiming Landlord is in default of this Lease. Such
mortgagee shall be specifically identified by Landlord to Tenant in writing. In
no event, however, shall Tenant's rights or remedies hereunder be limited or
restricted as a result of providing such notice, it being the intent of the
parties that while Tenant shall have the obligation to provide such notice to
Landlord's mortgagee, Tenant shall not be prohibited or restricted in seeking
any remedies against Landlord as a result thereof.
(SIGNATURE PAGES FOLLOW)
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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as
of the day and year first above written.
SIGNED, SEALED AND DELIVERED LANDLORD:
IN THE PRESENCE OF:
AUTONATION USA CORPORATION,
a Florida corporation
By:
---------------------------------- ------------------------------
PRINT NAME OF WITNESS BELOW:
Name:
----------------------------
Title:
---------------------------------- ----------------------------
PRINT NAME OF WITNESS BELOW:
TENANT:
ANC RENTAL CORPORATION,
a Delaware corporation
By:
---------------------------------- ------------------------------
PRINT NAME OF WITNESS BELOW:
Name:
----------------------------
Title:
---------------------------------- ----------------------------
PRINT NAME OF WITNESS BELOW:
STATE OF FLORIDA )
) ss:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this ____ day of
____________, 2000, by ______________________, ________________ of
__________________________, a ____________________ corporation, on behalf of the
corporation. He/she is personally known to me or has produced
____________________ (type of identification) as identification.
---------------------------------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
---------------------------------------------------------
(Print, Type or Stamp Commissioned Name of Notary Public)
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STATE OF FLORIDA )
) ss:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this ____ day of
____________, 2000, by ______________________, ________________ of
__________________________, a ____________________ corporation, on behalf of the
corporation. He/she is personally known to me or has produced
____________________ (type of identification) as identification.
---------------------------------------------------------
NOTARY PUBLIC, STATE OF ______________
---------------------------------------------------------
(Print, Type or Stamp Commissioned Name of Notary Public)
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