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EXHIBIT 10.60
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease") is entered into as of the 1st day
of January, 1998, by and between XXXXXXXXX CAPITAL CORPORATION (herein called
"Lessee") and BRASSIE GOLF CORPORATION ("Brassie").
W I T N E S S E T H:
WHEREAS, Brassie has heretofore entered into that certain Lease with Tampa
City Center Associates (the "Landlord") dated July 1, 1997 (the "Lease"),
whereby Brassie agreed to lease from the Landlord certain premises located on
the 25th floor of the Tampa City Center Building, Tampa, Florida (the
"Premises"); and
WHEREAS, the Lessee desires to sublease the said Premises from Brassie.
NOW, THEREFORE, in consideration of the premises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEMISE, DESCRIPTION, USE, TERM, AND RENT
Brassie hereby subleases to Lessee, and Lessee hereby subleases from the
Brassie, office space comprised of approximately 4,140 square feet, as more
further described in Exhibit A attached hereto and made a part hereof (the
"Leased Premises"), to be used only for office purposes and uses normally
incident thereto and for no other purpose, for the term of thirty-two (32)
months commencing on January 1, 1998 and ending on August 31, 2000, for the
monthly rental set forth below and payable as specified in Article 2 hereof:
ARTICLE 2
RENT
Lessee shall pay to Brassie monthly rent in the amount of $5,520.00 (plus
applicable Florida state sales tax) as rent for the Leased Premises during the
term hereof, in monthly installments as set forth in Article 1 hereof. All such
sums are due and payable in advance on the first day of each and every calendar
month during such term, commencing on April 1, 1998, at Xxx Xxxxx Xxxx Xxxxxx,
Xxxxx 000, Xxxxx, Xxxxxxx 00000, or at such other place as Brassie may designate
in writing. All payments shall be without set off or deduction, except as
otherwise expressly provided herein. The foregoing rental rate is inclusive of
all current operating expenses charged by Landlord to Brassie and any additional
increases to the operating expenses and any other additional charges whatsoever.
Except as set forth in the last sentence of this paragraph, any additional
charges beyond the rates as outlined above shall be the
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sole responsibility of Brassie. The rental rates shall constitute the sole
charge due and payable for the occupancy by Lessee, except for evening and
weekend utility and HVAC charges, and other incremental usage charges incurred
by Lessee (which shall be billed to Lessee upon Brassie's receipt of an invoice
therefor from Landlord) and late fees or other charges due to Lessee's default.
ARTICLE 3
THE LEASE
All of the terms and provisions of the Lease are incorporated by reference
as if fully rewritten herein, and Lessee shall be entitled to all of the
benefits, and subject to all of the conditions and obligations of, Brassie as
lessee under the Lease, except as otherwise provided herein.
ARTICLE 4
INSURANCE AND RISK OF LOSS
4.1 (a) All personal property belonging to the Lessee or to any other
person, located in or about the Leased Premises or the surrounding building and
premises, shall be at the sole risk of the Lessee or such other person, and
neither the Landlord, Brassie nor their agents shall be liable for the theft or
misappropriation thereof, or for any damage or injury thereto, or for any damage
or injury to the Lessee or other persons or to any of their respective property
caused by fire, water, snow, frost, steam, heat, cold, dampness, falling
plaster, sewers or sewage, gas, odors, noise, the bursting or leaking of pipes,
plumbing, electrical writing or equipment or fixtures of any kin, or of any
other extended coverage perils, or by any act or neglect of any other tenant or
occupant of the building, or of any other person or caused in any manner
whatsoever.
Lessee shall, during the entire term of the Sublease, carry and keep or
cause to be kept in force, at its expense, written by one or more responsible
insurance companies licensed to do business in the State of Florida, insurance
naming Lessee, Brassie and Landlord as the certificate holder, for personal
injury and property damage liability (public liability insurance) upon the
Leased Premises in the amount of at least $1,000,000 for combined single limit
bodily injury and property damage liability, and will provide a Certificate of
Insurance to Brassie within thirty (30) days after the execution of this
Sublease and within thirty (30) days of each renewal date of said insurance. It
is further agreed that no cancellation or material change in the Lessee's
policies shall become effective except upon thirty (30) days prior written
notice to Brassie and Landlord.
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(b) The Lessee will protect, indemnify and save harmless the Landlord
and Brassie from all losses, costs or damages sustained by reason of any act or
other occurrence causing injury or harm to any person or property whatsoever,
resulting directly or indirectly from the Lessee's use of the Leased Premises or
any part thereof.
4.2 If Lessee shall fail to secure or maintain insurance as required by
Section 4.1, above, at any time during the term hereof, Brassie shall be
permitted, but not required, to obtain such insurance in Lessee's name or as the
agent of Lessee and shall be compensated by Lessee for the cost thereof.
4.3 If the Leased Premises or the building in which it is situated become
untenantable due to fire, flood or other casualty, and if the Landlord
terminates the Lease, then this Sublease shall terminate and rent shall be
abated for the unexpired portion of this Sublease, effective as of the date of
such termination. If the Landlord does not terminate the Lease, but undertakes
to repair, restore or rehabilitate the building or the Leased Premises, the rent
payable hereunder during said period shall not be abated.
ARTICLE 5
WASTE AND NUISANCE
Lessee shall not commit, or suffer to be committed, any waste on the Leased
Premises, nor shall it maintain, commit, or permit the maintenance or commission
of any nuisance on the Leased Premises for any unlawful purpose.
ARTICLE 6
POSSESSION AND QUIET ENJOYMENT
6.1 Brassie shall, on the commencement date of the term of this Sublease as
hereinabove set forth, place Lessee in possession of the Leased Premises and
shall secure Lessee in the quiet enjoyment thereof against all persons lawfully
claiming the same under the Bank during the entire Sublease term.
6.2 This Sublease shall be subordinate, at the option of the Landlord, to
any mortgages placed by the Landlord upon the building or land of which of the
Premises is a part, or the underlying leasehold interest. Lessee agrees to
execute a subordination agreement in the format requested.
6.3 During the entire term hereof, Lessee shall remain in possession of the
Leased Premises and operate its business therefrom during regular working hours.
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ARTICLE 7
POSSESSION AND QUIET ENJOYMENT
In the event that any future mortgagee of Brassie or Landlord requires that
certain modifications be made to this Sublease, Lessee agrees to execute any and
all documents reasonably necessary to effect such modifications; provided,
however, that nothing contained in this Article 7 shall be construed as Lessee's
agreement to a modification which in any way (i) increases Lessee's financial
obligations hereunder including, but not limited to, rent; (ii) affects the size
or location of the Leased Premises; or (iii) prevents Lessee from deriving any
of the material benefits of this Sublease.
ARTICLE 8
SURRENDER OF LEASED PREMISES
8.1 Lessee shall, without demand therefor and at its own cost and expense,
within ten (10) days after the expiration or sooner termination of the term
hereof, remove all property belonging to the Lessee and all alterations,
additions, or improvements, and fixtures which by the terms of the Lease the
Lessee is permitted to remove, repair all damage to the Premises caused by such
removal, and restore the Premises to the condition it was in prior to the
installation of the property so removed. Any property not so removed shall be
deemed to have been abandoned by Lessee and may be retained or disposed of by
the Bank or the Landlord, as applicable.
8.2 Lessee agrees to and shall, on the expiration or sooner termination of
the term hereof, promptly surrender and deliver the Leased Premises to Brassie
without demand therefor in good condition, ordinary wear and tear and damage by
the elements, fire, or act of God, or by other cause beyond the reasonable
control of Lessee, excepted.
ARTICLE 9
CONDEMNATION
If during the term of this Sublease the Leased Premises should be taken for
any public or quasi-public use under any law, ordinance, or regulation or by
right of eminent domain, or should be sold to the condemning authority under
threat of condemnation, this Sublease shall terminate and the rent shall be
abated during the unexpired portion of this Sublease, effective as of the date
of the taking of the Leased Premises by the condemning authority. Lessee agrees
that Brassie shall have all rights to any leasehold interest in the event of any
condemnation, and Lessee hereby assigns to Brassie all of its right, title and
interest to any such award. Lessee shall, however, be entitled to claim, prove
and receive in such condemnation proceedings such award as may be allowed for
fixtures and other equipment installed by it but only if such award shall be in
addition
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to the award for the land and building (or portion thereof) containing the
Leased Premises.
ARTICLE 10
OPTION TO RENEW
Lessee shall have no option to renew this Sublease.
ARTICLE 11
DEFAULTS AND REMEDIES
If Lessee shall allow the rent to be in arrears, or shall remain in default
under any other condition of this Sublease for a period of fifteen (15) days
after written notice from Brassie, or shall remain in default under the terms of
the Lease beyond any applicable grace period set forth therein, or if the Leased
Premises shall become vacant or abandoned, or should any person other than
Lessee secure possession of the Leased Premises, or any part thereof, by
bankruptcy proceedings, or other operation of law in any manner at whatsoever,
Brassie may, at its option, without notice to Lessee, terminate this Sublease
or, in the alternative, Brassie may re-enter and take possession of the Leased
Premises and remove all persons and property therefrom, without being deemed
guilty of any manner of trespass, and re-let the Premises or any part thereof
for all or any part of the remainder of said term to a party satisfactory to
Brassie and the Landlord, and at such monthly rental as the Brassie may with
reasonable diligence be able to secure. Should Brassie be unable to relet, or
should such monthly rental be less than the rental Lessee was obligated to pay
under this Sublease, plus the expense of re-letting, then Lessee shall pay the
amount of such deficiency to the Brassie within ten (10) days of demand
therefor. Brassie shall have no duty to mitigate damages hereunder.
It is expressly agreed that in the event of default by Lessee hereunder,
Brassie shall have a lien upon all goods, chattels, or personal property of any
description belonging to Lessee which are placed in, or become a part of, the
Leased Premises, as security for rent due and to become due for the remainder of
the term hereof, which lien shall not be in lieu of or in way affect any
statutory lessor's lien given by law, but shall be cumulative thereto; and a
security interest in all such personal property placed in the Premises for such
purposes. This shall not prevent the sale by Lessee, of any merchandise in the
ordinary course of business free of such lien of Brassie. In the event Brassie
exercises the option to terminate this Sublease, re-enter and occupy or re-let
the Leased Premises as provided in the preceding paragraph, then Brassie may
take possession of all of Lessee's property on the Leased Premises and sell the
same at public or private sale after giving Lessee reasonable notice of the time
and place of any public sale or of the time after which any private sale is to
be made, for cash or on credit, or for such prices and terms as Brassie deems
best, with or without having the property present at such sale.
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The proceeds of such sale shall be applied first to the necessary and
property expenses of removing, storing, and selling such property, then to the
payment of any rent due or to become due under this Sublease, with the balance,
if any, to be paid be Lessee.
All rights and remedies of Brassie under this Sublease shall be cumulative,
and none shall exclude any other right or remedy at law. Such rights and
remedies may be exercised and enforced concurrently and whenever and as often as
occasion therefor arises.
ARTICLE 12
INSPECTION
Lessee shall permit the Landlord, and their agents to enter into and upon
the Leased Premises at all reasonable times for the purpose of inspecting the
same or for the purpose of maintaining or making repairs or alterations to the
building.
ARTICLE 13
ASSIGNMENT AND SUBLEASE
Lessee shall not assign or convey this Sublease or any interest hereunder;
allow any transfer hereof or any lien upon the Lessee's interest by operation of
law; sublet the Leased Premises or any part thereof; or permit the use or
occupancy of the Leased Premises or any part thereof by anyone other than
Lessee.
ARTICLE 14
MISCELLANEOUS
14.1 All notices to be given under this Sublease shall be given by
certified or registered mail. return receipt requested, addressed to the proper
party as follows:
Brassie: 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Lessee: 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
14.2 This Sublease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors, and assigns when permitted hereby. All Lessees
shall be jointly and severally liable hereunder.
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14.3 This Sublease shall be construed under and in accordance with the laws
of the State of Florida.
14.4 In case any one or more of the provisions contained in this Sublease
shall for any reason be held to be invalid, illegal, or unenforceable, no other
provision hereof shall be affected thereby and this Sublease shall be construed
as if such invalid, illegal or unenforceable provision had never been contained
herein.
14.5 This Sublease constitutes the sole and only agreement of the parties
hereto and supersedes any prior understandings or written or oral agreements
between the parties respecting the subject matter hereof.
14.6 No amendment, modification, or alteration of the terms hereof shall be
binding unless the same shall be in writing, dated subsequent to the date
hereof, and duly executed by the parties hereto.
14.7 The rights and remedies provided by this Sublease are cumulative and
the use of any one right or remedy by either party shall not preclude or waive
its right to use any or all other remedies. Said rights and remedies are given
in addition to any other rights the parties may have by law, statute, ordinance,
or otherwise.
14.8 No waiver by the parties hereto of any default or breach of any term,
condition, or covenant of this Sublease shall be deemed to be a waiver of any
other breach of the same or any other term, condition, or covenant contained
herein.
14.9 In the event or Lessee breaches any of the terms of this Sublease
whereby the party not in default employs attorneys to protect or enforce its
rights hereunder and prevails, then the defaulting party agrees to pay the other
party reasonable attorneys' fees so incurred by such other party.
14.10 Neither Brassie nor the Lessee shall be required to perform any term,
condition, or covenant in this Sublease so long as such performance is delayed
or prevented by any acts of God, strikes, lock-outs, material or labor
restrictions by any governmental authority, civil riot, floods, or any other
cause not reasonably within the control of the Lessee and which by the exercise
of due diligence such party is unable, in whole or in part, to prevent or
overcome.
14.11 Time is of the essence of this Sublease.
Signed and acknowledged
in the presence of:
BRASSIE GOLF CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx,
Its CEO
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XXXXXXXXX CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx,
Its CEO
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 6th day of
January, 1998, by XXXXXX X. XXXXXXX, as CEO of BRASSIE GOLF CORPORATION, a
__________ corporation, on behalf of the corporation. He is personally known to
me.
/s/ Xxxxxxx Xxxxxx
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NOTARY PUBLIC
Name: Xxxxxxx Xxxxxx
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Serial #: CC 427596
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My Commission Expires: 12/19/98
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STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 6th day of
January, 1998, by XXXXX X. XXXXXXXX, as CEO of XXXXXXXXX CAPITAL CORPORATION, a
__________ corporation, on behalf of the corporation. He is personally known to
me.
/s/ Xxxxxxx Xxxxxx
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NOTARY PUBLIC
Name: Xxxxxxx Xxxxxx
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Serial #: CC 427596
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My Commission Expires: 12/19/98
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CONSENT
The undersigned, TAMPA CITY CENTER ASSOCIATES ("Landlord"), being the
landlord under that certain Lease dated as of February 21, 1985, as amended,
hereby consents and approves of the Sublease of the office space leased
thereunder Brassie Golf Corporation ("Brassie") to Xxxxxxxxx Capital
Corporation ("Subtenant") (Brassie and Subtenant collectively, "Lessee").
By its execution hereof, Landlord does not release Brassie from its
primary liability under the Lease. Notwithstanding any provision of the
Sublease, the terms and conditions of the Lease remain unamended and in full
force and effect, and any inconsistent agreement between Brassie and Subtenant
in the sublease shall not be binding on Landlord. By granting its consent to
the sublease, Landlord does not waive the terms and conditions of paragraph 17
of the Lease, and such terms and conditions shall apply to any further proposed
assignment or proposed subletting.
In the event the Lease between the undersigned and Brassie is terminated,
Landlord hereby agrees that this Sublease shall continue for the balance of the
term stated herein with the same force and effect as if Landlord and Lessee
entered into this Sublease, under the same terms and conditions, including
those incorporated by reference from the Lease.
Signed in the presence of: TAMPA CITY CENTER ASSOCIATES
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxx Print Name: Xxxxxx Xxxxxxxxx
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Its: President
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/s/ Xxxxx X. Xxxxxx
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Print Name: Xxxxx X. Xxxxxx
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