AMENDMENT
TO
AMENDED AND RESTATED LEASE AGREEMENT
THIS AMENDMENT is made as of the 10th day of December 1999 by and between
GROVE ISLE ASSOCIATES LTD., a Florida limited partnership ("Lessor") and
WESTGROUP GROVE ISLE ASSOCIATES LTD., a Florida limited partnership ("Lessee").
WHEREAS
A. Lessor and Lessee are the parties to that certain Amended and Restated
Lease Agreement (the "Lease") dated as of November 19, 1996. Any and all initial
capitalized terms used, but not defined herein, shall have the meanings given to
them in the Lease.
B, The parties now desire to amend the Lease in certain respects as more
particularly set forth below.
NOW, THEREFORE, in consideration of Ten and No/00 Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1 . The foregoing recitals are true and correct and are incorporated herein
by this reference. This Amendment shall be deemed part of, but shall take
precedence over and supersede any provisions to the contrary contained in the
Lease. All initial capitalized terms used in this Amendment shall have the same
meaning as set forth in the Lease unless otherwise provided.
2. In consideration of Lessee's substantial efforts in improving the leased
premises and investing capital beyond the amounts required by this Lease, Lessor
agrees to reduce the amount of Base Rent due and payable by the amount of Four
Hundred Eighty Thousand Dollars ($480,000.00) ("Reduced Rent"), which Reduced
Rent shall result in reduction in the installments of Base Rent only over the
following periods of time:
(a) $100,000.00 Lessee shall be excused from making the December
1999 Base Rent payment in the amount of $73,333.33
and shall be allowed to reduce the January, 2000
Base Rent payment by the amount of $26,667.00.
(b) $20,000.00 Base Rent for each month from and including
February 2000 through and including August 2001
shall be reduced each month by $20,000.00 (19
months).
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Amendment to Amended and
Restated Lease Agreement
122099
Notwithstanding the foregoing, the agreement to afford Lessee the Reduced
Rent amount and for Lessor to accept rental payments offset by the Reduced Rent
shall automatically terminate in the event of any default by Lessee under the
terms of the Lease, and thereafter, Lessee shall be obligated to make payments
without any reduction for the Reduce Rent.
3. Lessee agrees that as Lessee avails itself of the Reduced Rent, Lessor's
Capital Investment increases. Inasmuch as Base Rent is determined based upon the
amount of Lessor's Capital Investment, Lessee agrees that Base Rent shall
increase with each increment of Reduced Rent. For example, after Lessee's use of
the initial $100,000.00 of the Reduced Rent (increasing Lessor's Capital
Investment by $100,000.00), annual Base Rent shall increase from $880,000.00 to
$888,000.00 (or from $73,333.33 to $74,000.00 per month). Notwithstanding
anything provided in the Lease, Base Rent shall be adjusted monthly to reflect
changes in Lessor's Capital Investment through the immediately preceding month.
Accordingly, after fully utilizing the Reduced Rent (increasing Lessor's Capital
Investment to $11,480,000.00), annual Base Rent will be $918,400.00 (subject to
adjustment in accordance with paragraph 4 below).
4. In addition to any other changes to Base Rent, commencing with the Lease
Year commencing January 1, 2002 [and during each Lease Year thereafter during
the remainder of the Term (and any extensions or renewals thereof)], annual Base
Rent shall be increased (but not decreased) in accordance with changes in the
Consumer Price Index-U.S. city average for urban wage earners and clerical
workers, 1982-84 equals 100, all items, as promulgated by the U.S. Department of
Labor, Bureau of Labor Statistics ("CPI"). The annual Base Rent shall be
increased each Lease Year by adding thereto an amount equal to the product of
(i) the then applicable annual Base Rent and (ii) a fraction, the numerator of
which is the CPI for the Calculation Date applicable to the affected Lease Year
(the "Applicable Calculation Date") minus the CPI for October 1, 1999 and the
denominator of which is the CPI for October 1, 1999. In no event shall the
annual Base Rent for the applicable Lease Year as adjusted pursuant to this
paragraph ever decrease below the annual Base Rent as adjusted pursuant to this
paragraph for the immediately prior Lease Year. In the event of an adjustment to
the annual Base Rent in accordance with a change in the CPI, Lessor shall notify
Lessee in writing of the increase to the annual Base Rent for the applicable
Lease Year and the increased amount of the new monthly installments due with
respect thereto. Within ten (10) days of receiving such written notice, Lessee
shall pay to Lessor all increases to the annual Base Rent owed for all months
which have elapsed in the then current Lease Year. If a substantial change is
made in the method of establishing the CPI or a change is made to the base year
used by the Bureau of Labor Statistics in computing the CPI, then the CPI shall
be adjusted to a figure as nearly equivalent as possible to the figure that
would have resulted had no change been made in the method of establishing the
CPI. In the event that the CPI (or a successor or substitute index) becomes
unavailable, then a comparable index published by a governmental or other
nonpartisan entity evaluating the same
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Amendment to Amended and
Restated Lease Agreement
122099
information theretofore used in establishing the CPI shall be used in lieu of
the CPI.
5. Commencing with the Lease Year commencing January 1, 2002 [and during
each Lease Year thereafter during the remainder of the Term (and any extensions
or renewals thereof)], the amount of Participation Rent payable to Lessor shall
be reduced by the amount by which Base Rent was increased solely as a result of
CPI increases for that Lease Year. The amount by which Participation Rent may be
reduced shall be reviewed on an annual basis, and to the extent that the CPI
increases for a year are greater than the amount of Participation Rent payable
during that Lease Year, Lessee shall be excused for payment of Participation
Rent for said year, but may not carry over any amount by which the CPI increase
exceeds Participation Rent. By way of example only, if annual Base Rent for 2002
increases as a result of CPI increases by $45,000.00 and Participation Rent
payable in 2002 is $30,000.00, then, in such event, Lessee shall be excused from
payment of Participation Rent in 2002 because the CPI increase for the Lease
Year exceeds the amount of Participation Rent otherwise payable. Lessee shall
not, however, be entitled to a credit in any other year for the additional
$15,000.00 of CPI increase in 2002 for which Lessee did not receive an offset
against Participation Rent for 2002. If instead, the annual CPI increase for
2002 was $20,000.00, then Lessee would be obligated for payment of Participation
Rent in 2002 of $10,000.00 (the $30,000.00 of Participation Rent that was
otherwise payable, less a credit for the $20,000.00 of CPI increase), payable as
provided in the Lease.
6. The second sentence of Section 5.1 of the Agreement is hereby amended to
read in its entirety as follows:
The Termination Payment" means fifty percent (50%) of the amount by
which the value of the Demised Premises on the Termination Date
exceeds $11,480,000.00.
7. Signatures of the parties hereto on copies of this instrument
transmitted by facsimile machine shall be deemed originals for all purposes
hereunder, and shall be binding upon the parties hereto. This instrument may be
executed in any number of counterparts and by the separate parties hereto in
separate counterparts, each of which when taken together shall be deemed to be
one and the same instrument.
8. Except as specifically modified hereby, all of the provisions of the
Lease which are not in conflict with the terms of this Amendment shall remain in
full force and effect.
THE REMAINDER OF THIS PAGE IS BLANK
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Amendment to Amended and
Restated Lease Agreement
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
Witnessed by: LESSOR:
GROVE ISLE ASSOCIATES, LTD., a Florida
limited partnership
By: Courtland Investments, Inc., a Delaware
corporation its sole general partner
/s/ By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxxx Title: President
(Corporate Seal)
LESSEE:
WESTGROUP GROVE ISLE ASSOCIATES,
LTD., a Florida limited partnership
/s/ By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
/s/ Xxxxxxxxx Xxxxx Title: President, Westgroup Partner, Inc.
ITS General Partner
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Amendment to Amended and
Restated Lease Agreement
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