Exhibit 10.71
LEASE
THIS LEASE, made and entered into as of the 9TH day of DECEMBER, 2005, and
between Landlord as hereinafter defined and Tenant as hereinafter defined.
W I T N E S S E T H
In consideration of the rent to be paid, the mutual covenants and
agreements herein contained, and of other good and valuable considerations, the
receipt and legal sufficiency of which are hereby acknowledged by both parties
hereto, Landlord hereby demises and rents unto Tenant, and Tenant hereby leases
from Landlord, certain premises now existing in Landlord's property named below
and described in Exhibit "A" attached hereto, upon the terms, covenants and
conditions hereinafter contained.
ARTICLE I
FUNDAMENTAL LEASE PROVISIONS AND EXHIBITS
Section 1.1 FUNDAMENTAL LEASE PROVISIONS.
A. Property: 000-000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000
B. LANDLORD: Xxxxxxx Family Partnership I
C. TENANT: xXXXXXXXXXX.XXX, INC.
D. LEASED PREMISES: 000 XXXX XXXXXXX XXXX, XXXXXXX, XXXXXXX 00000
E. SIZE/DIMENSIONS: 30,000 square feet
F. PERMITTED USES: General Offices
G. LEASE TERM: 7 Years. Commencing the 9TH day of DECEMBER, 2005 and
Terminating midnight 31ST DAY of DECEMBER, 2012.
H. OPTIONS: See Rider.
I. RENT SCHEDULE: See Exhibit "C"
(All rents shall be plus applicable Florida rental tax.)
J. RENT COMMENCEMENT DATE: December 9, 2005.
K. LEASE COMMENCEMENT DATE: December 9, 2005.
L. RENTAL PAYMENT PLACE: Xxxxxxx Family Partnership I, c/o X X
Management, Inc. 000 X. Xxxxxx Xxx., Xxxxx 000, Xxxxxxxxxx, XX 00000
1
M. PRORATA SHARE: 48.4% representing the percentage of the total
rentable space in the Industrial Building represented by the number
of rentable square feet in the Leased Premises.
N. COMMON AREA MAINTENANCE CONTRIBUTION: $ N/A per year plus any
applicable Florida rental tax. * See Exhibit C
O. REAL ESTATE TAX CONTRIBUTION: $ N/A per year plus any applicable
Florida rental tax.
P. INSURANCE CONTRIBUTION: $ N/A per year plus any applicable Florida
rental tax.
Q. SECURITY DEPOSIT: $75,000 (see Exhibit "C") Security Deposit to be
held in Synovus Bank in an interest bearing account.
2
Section 1.2 EFFECT OF REFERENCE TO A FUNDAMENTAL LEASE PROVISION. Each
reference in this Lease to any of the Fundamental Lease Provisions contained in
Section 1.1 shall be construed to incorporate all of the terms provided under
each such Fundamental Lease Provisions as hereinafter amplified.
Section 1.3 EXHIBITS. The exhibits listed in this section and attached to
this Lease are incorporated herein by reference and are to be construed as a
part hereof.
Exhibit A. Legal Description.
Exhibit B. Hazardous Materials
Exhibit C. Rent Schedule
Exhibit D. Tenant/Landlord Work Schedule
Exhibit E. Renewal Option
Exhibit F. Sign Criteria
ARTICLE II
LEASED PREMISES AND TERM
Section 2.1 COVENANTS OF LANDLORD'S AUTHORITY. Landlord represents and
covenants that: (1) prior to commencement of the Lease Term, it will have either
good title to or a valid leasehold interest in the land and building of which
the leased premises form a part, and (2) upon performing all of its obligations
hereunder, Tenant shall peacefully and quietly have, hold and enjoy the premises
for the term of this lease.
Section 2.2 LEASED PREMISES. For the purpose of this lease, Leased
Premises shall extend to the exterior faces of all walls or to the building line
where there is no wall, or the center line of those walls separating the Leased
Premises from other leased premises in the building, together with the
appurtenances specifically granted in this lease, but reserving and excepting to
Landlord the use of the exterior walls and the roof and the obligation to
install, maintain, use, repair and replace pipes, ducts, conduits, and wires
leading through the Leased Premises in locations which will not materially
interfere with Tenant's use thereof and serving other parts of the building.
Section 2.3 TERM. The term of this lease shall commence on the date set
forth in Article I, Section 1.1 G. and shall continue for the period set forth
therein. The fractional month, if any, between the commencement of the Lease
Term and the end of the month in which the Lease Term begins is hereinafter
referred to as the "Fractional Month".
Section 2.4 STATEMENT AS TO LEASE TERM. After the commencement and
termination dates of the
3
Lease Term shall have been determined as provided in Section 2.3, Tenant, at
Landlord's request, shall from time to time execute, acknowledge and deliver
written statements to the extent such statements are applicable or accurate in
recordable form: (1) ratifying this lease; (2) specifying the commencement and
termination dates of the Lease Term; (3) certifying that this lease is in full
force and effect and has not been assigned, modified, supplemented or amended
(except by such writings as shall be so stated); (4) that all conditions under
this lease to be performed by Landlord have been satisfied or stating those not
performed; (5) that there are no defenses or offsets against the enforcement of
the lease by Landlord or specifying any such defenses; (6) the date to which the
rental has been paid; (7) the number of square feet of floor space in the Leased
Premises; and (8) that no rental has been paid in advance or specifying any such
advance rental.
ARTICLE III
RENTALS
Section 3.1 FIXED MINIMUM ANNUAL RENT. Tenant shall pay to Landlord,
without demand and without deduction or set-off, at the rental payment place, or
such other address for the rental payment place as Landlord by notice in writing
to Tenant may from time to time direct, as follows: Fixed Rent shall be payable
at the annual rate provided in Article I, Section 1.1 I (Exhibit C), for each
year of the Lease Term, in equal monthly installments in advance on the first
day of each month during the Lease Term. If payment is more than five (5) days
late, a late fee of 10% is assessed on midnight of the fifth day. The Fixed Rent
for a Fractional Month (if any) shall be apportioned on a per diem basis,
calculated on the basis of a thirty (30) day month, and shall be payable on the
commencement of the Lease Term.
ARTICLE IV
COMMON AREAS, THEIR USE AND CHARGES
Section 4.1 COMMON AREAS. Landlord shall make available within the demised
premises such common areas, including but not limited to, parking areas,
driveways, truck ways, delivery passages, loading docks, pedestrian sidewalks
and ramps, access and egress roads, landscaped and planted areas, and other
facilities as Landlord in its sole discretion shall deem appropriate. It is
hereby expressly understood and agreed by Landlord and Tenant that Landlord
shall operate, manage, equip, light, repair and maintain said common areas for
their intended purposes in good repair and working order, and Landlord reserves
the right to change from time to time the size, location, nature and use of any
common areas, to installations therein, and to move and remove the same.
Section 4.2 USE OF COMMON AREAS. Tenant and its concessionaires, officers,
employees, agents, customers and invitees shall have the non-exclusive right, in
common with Landlord and all others to whom Landlord has or may hereafter grant
rights, to use the common areas as designated from time to time by Landlord
subject to such reasonable rules and regulations as Landlord my from time to
time impose, including the designation of specific areas in which cars owned by
Tenant, its concessionaires, officers, employees and agents must be parked.
There are currently a total of 197 parking spaces on the property. As long as
Promedica is the other tenant, their parking space allocation per their current
lease will remain @ 40 spaces. eAUTO will be allocated 157 parking spaces. eAUTO
agrees that at anytime in the future if the Lessor enters into a lease agreement
with a new tenant for the 32,000 SF space currently occupied by Promedica, that
eAUTO will accept a reduction to 133 parking spaces. Tenant agrees after notice
thereof to abide by such rules and regulations and to use its best efforts to
cause its concessionaires, officers, employees, agents, customers and invitees
to conform thereto. Landlord may at any time close temporarily any common area
to make repairs or changes, to prevent the acquisition of public rights in such
areas or to discourage non-customer parking; and Landlord may do such other acts
in and to the common areas as in its
4
judgment may be desirable to improve the convenience thereof provided that
Landlord shall not unduly interfere or disrupt Tenant's business. Tenant shall
upon request furnish the Landlord the license numbers of the cars operated by
Tenant and its concessionaires, officers, employees, agents, customers and
invitees, to use any part of the parking area and other common areas. Neither
Tenant nor Tenant's employees, concessionaires or agents shall solicit business
in the parking or other common area or distribute any handbills or other
advertising matter in such areas or place any such handbills or advertising
matter in or any automobiles parked therein without Landlord's written consent.
Landlord reserves the right to grant to third persons the non-exclusive
right to cross over and use in common with Landlord and all tenants of the
property the common areas designated from time to time by Landlord.
ARTICLE V
UTILITY SERVICES
Section 5.1 UTILITIES. Tenant shall promptly pay for all public utilities
rendered or furnished to the Leased Premises from and after the date lease
commences of the Leased Premises (irrespective of whether Tenant shall have
opened for business in the Leased Premises), including but not limited to water,
gas, electricity and sewer charges and all taxes thereon. Landlord, at its
election, may install re-registering meters and collect any and all charges
aforesaid from Tenant, making returns to the proper public utility company or
governmental unit, provided that Tenant shall not be charged more than the rates
it would be charged for the same services if furnished direct to the Leased
Premises by such companies or governmental units.
Section 5.2 FURNISHING OF UTILITY SERVICES. Any utility or related
service, including a privately owned sewerage disposal system, which Landlord
elects to provide or cause to be provided to the Leased Premises may be
furnished by any agent employed by Landlord or by an independent contractor
selected by Landlord, and Tenant shall accept the same therefrom to the
exclusion of all other suppliers so long as the rates charged by the Landlord or
by the supplier or such utility or related service, caused by or necessitated by
repairs or improvements, or by hazards beyond the reasonable control of
Landlord, shall not give rise to a right or cause of action by Tenant against
Landlord in damages or otherwise.
ARTICLE VI
REPAIRS AND MAINTENANCE
Section 6.1 REPAIRS BY LANDLORD. Landlord shall make and pay for all
repairs to the exterior of the building which the Leased Premises are a part,
including but not limited to repairs to roof (including drains, downspouts,
pipes and conduits leading to the Leased Premises from utility installments,
sidewalks, malls, parking areas, curbs and exterior structural walls and roof).
If Landlord is required to make any repairs by reason of Tenant's negligent acts
or omission to act, Landlord may add the cost of such repairs to the rent which
shall thereafter become due.
Section 6.2 REPAIRS AND MAINTENANCE BY TENANT. Tenant shall make and pay
for all repairs to the interior of the Leased Premises and shall replace all
things necessary to keep the same in good state of repair, such as all fixtures,
furnishings, lighting, doors and store signs of Tenant. Tenant shall also
maintain, replace and keep in good repairs all air-conditioning, plumbing,
heating and electrical installations and floor surfaces within the Leased
Premises. Tenant shall at all times keep the Leased Premises (including
5
maintenance and cleaning of exterior entrances, all glass and show window
moldings, signs and bulkheads) and all partitions, doors, floor surfaces,
fixtures, equipment and appurtenances thereof in good order, condition and
repair, and in a reasonably satisfactory condition of cleanliness (including
damage by unavoidable casualty excepted), and Tenant shall make such other
necessary repairs in and to the Leased Premises not specified in Section 6.1
hereof as the responsibility of Landlord, In addition to the foregoing, Tenant
shall install, repair, replace and maintain fire extinguishers and other fire
preventive equipment in the Leased Premises in accordance with the
recommendations or requirements of Landlord's fire engineer or Landlord's fire
insurance carrier or in accordance with any future recommendations of Landlord's
fire engineer or fire insurance carrier, and in accordance with applicable
governmental codes (including the Occupational Safety and Health Act).
Tenant shall reimburse Landlord for actual costs for repairs if Tenant
refuses or neglects to repair as required.
Tenant will be responsible for ADA conformance within the Leased Premises.
Section 6.3 INSPECTION. Landlord or its representatives shall have the
right to enter the Leased Premises at reasonable hours of any business day
during the Leased Term to ascertain if the premises are in proper repair and
condition.
Section 6.4 SIDEWALKS. Tenant agrees to use reasonable diligence to keep
the sidewalks and outside areas immediately adjoining the premises clean, and at
all times to broom-clean or otherwise keep said sidewalks and outside areas free
of trash, litter or obstructions of any kind.
Section 6.5 REPLACEMENT OF GLASS. At the commencement of the Lease Term
all glass in the Leased Premises shall be in good condition and undamaged.
Tenant will, at its own expense, replace all glass thereafter broken or damaged.
ARTICLE VII
USE OF LEASED PREMISES
Section 7.1 USE OF LEASED PREMISES. Tenant covenants and agrees to use the
Leased Premises only for the permitted uses set forth in Article I, Section 1.1
F., and for no other purpose.
The Leased Premises and all building and improvements thereon shall,
during the Lease Term, be used only and exclusively for lawful and moral
purposes and no part of the Leased Premises or improvements thereon shall be
used in any manner whatsoever for any purposes in violation of the laws,
ordinances, regulations or orders of the United States, or of the State, County
and/or City where the premises are located or the Fire Insurance Rating
Organization and/or the Board of Fire Insurance Underwriters, or any duly
constituted subdivision, department or board thereof. Tenant shall comply with
all such laws, ordinances, regulations, or orders now in effect or hereafter
enacted or passed during the Lease Term insofar as the Leased Premises and any
signs of Tenant are concerned, and shall make at Tenant's own cost and expense,
all repairs, additions and alterations to the Leased Premises ordered or
required by such authorities, whether in order to meet the special needs of
Tenant, or by reason of the occupancy of Tenant, or otherwise.
Section 7.2 RULES AND REGULATIONS. Tenant's use of the Leased Premises
shall be subject, at all times during the Lease Term, to Landlord's right to
adopt from time to time, modify and/or rescind reasonable
6
rules and regulations not in conflict with any of the express provisions hereof
governing the use of the parking areas, malls, walks, driveways, passageways,
signs, exteriors or buildings, lighting and other matters affecting other
tenants in and the general management and appearance of the property of which
the Leased Premises are a part, but no such rule or regulation shall
discriminate against Tenant. Tenant agrees to comply with all such Rules and
Regulations upon notice to Tenant from Landlord. Tenant also agrees to the
following:
(a) All loading and unloading of goods shall be done only at such time, in
the areas, and through the entrances designated for such purposes by Landlord.
(b) The delivery or shipping of merchandise, supplies and fixtures to and
from the Leased Premises shall be subject to such rules and regulations as in
the judgement of Landlord are necessary for the proper operation of the Leased
Premises.
(c) All garbage and refuse shall be kept in the kind of container
specified by Landlord, or duly constituted public authority, and shall be placed
outside of the Leased Premises prepared for collection in the manner and at the
times and places specified by Landlord. If Landlord shall provide or designate a
service for picking up refuse and garbage, Tenant shall use same at Tenant's
cost. Tenant shall pay the cost of removal of any Tenant's refuse or rubbish and
maintain all common loading areas in a clean manner satisfactory to the
Landlord.
(d) No aerial shall be erected on the roof or exterior walls of the Leased
Premises or on the grounds without, in each instance, the written consent of
Landlord, Any aerial so installed without such written consent shall be subject
to removal without notice at any time.
(e) No loudspeakers, televisions, phonographs, radios or other devices
shall be used in a manner so as to be heard or seen outside of the Leased
Premises without the prior written consent of Landlord.
(f) Tenant shall maintain the inside of the Leased Premises at a
temperature sufficiently high to prevent freezing of water in pipes and fixtures
inside the Leased Premises.
(g) The plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no foreign substance of any kind shall
be deposited therein, and the expense of any breakage, stoppage or damage
resulting from a violation of this provision shall be borne by Tenant.
(h) Tenant, at its expense, shall employ the services of a reputable
termite and pest extermination contractor at regular intervals as Landlord may
require.
(i) Tenant shall not burn any trash or garbage of any kind in or about the
Leased Premises, or within one mile of the outside property line.
(l) Tenant will not place or suffer to be placed or maintained on any
exterior door, wall or window of the Leased Premises any sign, awning or canopy,
or advertising matter or other thing of any kind, and will not place or maintain
any decoration, lettering, advertising matter or other thing except as may be
approved by the Landlord.
(m) Tenant agrees that it will erect on the facade of its premises an
identification sign in accordance
7
with the sign criteria set forth by the Landlord within 30 days following its
opening for business.
(m) Notwithstanding anything hereinabove to the contrary, Tenant agrees to
comply with any modifications, additions, new rules and regulations for the use
and occupancy of the Leased Premises, as the Landlord, in its full discretion,
from time to time promulgates for the best interests of the property. Landlord
shall have no liability for violation by any other Tenant of the property of any
rules and regulations, nor shall such violation or the waiver thereof excuse
Tenant from compliance.
Section 7.3 SIGNS, AWNINGS, AND CANOPIES. Landlord may erect and maintain
such suitable signs as it, in its sole discretion may deem appropriate to
advertise the property. Tenant may erect and maintain on the exterior of the
Leased Premises only flat wall signs and under-canopy signs which shall be of
such size and type and in such locations as Landlord may approve. Tenant shall
keep insured and shall maintain such signs in good condition and repair at all
times. If any damage is done to Tenant's signs, Tenant shall repair it within
five (5) days or Landlord shall have the right to repair such signs and xxxx
Tenant for cost of the repairs.
Tenant will not place or suffer to be placed or maintained on any exterior
door, wall, or window of the Leased Premises, any sign, awning, or canopy, or
advertising matter or other thing of any kind, and will not place or maintain
any decoration, lettering or advertising matter on either the interior or
exterior glass of any window or door of the Leased Premises without first
obtaining Landlord's written approval and consent. Tenant further agrees to
maintain such sign, awning, canopy, decoration, lettering, advertising matter or
other things as may be approved by Landlord in good condition and repair at all
times.
Section 7.4 NOISE, OBSTRUCTION, AND NUISANCES. Tenant covenants that it
will not (i) create or maintain, or allow others to create or maintain, any
nuisances, including without limiting the foregoing general language, loud
noises, sound effects, offensive odors and smoke or dust in or about the
premises; (ii) place or maintain any signs in any parking area serving the
Leased Premises; (iii) commit any waste; or (iv) maintain or allow to be
maintained any excessively bright lights, changing, flashing, flickering, or
lighting devices or similar devices, the effect of which will be visible from
the exterior of the Leased Premises.
ARTICLE VIII
TENANT'S BUSINESS OPERATIONS
Section 8.1 RELATIONSHIP OF THE PARTIES. Nothing herein contained shall be
deemed or construed as creating the relationship of principal and agent or of
partnership or joint venture between the parties hereto; it being understood and
agreed that neither the method of computing rent nor any other provisions
contained herein nor any acts of the parties hereto shall be deemed to create
any relationship between the parties other than that of Landlord and Tenant.
8
ARTICLE IX
ADDITIONS, ALTERATIONS, AND TRADE FIXTURES
Section 9.1 BY LANDLORD. Landlord hereby reserves the right at any time to
make alterations or additions to the building in which the Leased Premises are
contained and to build additional stories thereon. Landlord also reserves the
right to construct other buildings or improvements on the property or common
areas from time to time and to make alterations thereof or additions thereto and
to build additional stories on any such building or buildings so constructed,
provided such construction will not be part of the CAM per 4.1 (d).
Section 9.2 BY TENANT. Tenant may from time to time, at its own expense,
alter, renovate or improve the interior of the Leased Premises provided the same
be performed in a good and workmanlike manner, in accordance with accepted
building practices and so as not to weaken or impair the strength or
substantially lessen the value of the building in which the Leased Premises are
located. No changes, alterations or improvements affecting the exterior of the
Leased Premises shall be made by Tenant without the prior written approval of
Landlord. Any work done by Tenant under the provisions of this Section shall not
interfere with the use by the other tenants of their premises in the property.
All alterations, decorations, additions and improvements made by Tenant,
or made by Landlord on Tenant's behalf as provided in this lease, shall remain
the property of the Tenant for the Lease Term or any extension or renewal
thereof, but they shall not be removed from the Leased Premises without the
prior written consent of Landlord.
Upon termination of this lease or upon the termination of any renewal term
thereof, Tenant shall remove such alterations, decorations, additions and
improvements and restore the Leased Premises as provided in Section 9.5, and if
Tenant fails to do so and moves from the Leased Premises, all such alterations,
decorations, additions and improvements shall become the property of Landlord.
Section 9.3 INDEMNITY AND INSURANCE. Tenant shall indemnify and hold
Landlord harmless from any and all claims for damages or otherwise based upon or
in any manner growing out of any alterations or construction undertaken by
Tenant under the terms of this lease, including all costs, damages, expenses,
court costs and attorney fees incurred in or resulting from claims made by other
tenants or premises in the property, their agents, employees, patrons and
invitees.
Before undertaking any alterations or construction, Tenant shall obtain
and pay for a public liability policy insuring Landlord and Tenant against any
liability which may arise on account of such proposed alteration or construction
work in limits of not less then $500,000.00 for any one person, $1,000,000.00
for more than one person in any one accident and $100,000.00 for property
damage, and a certificate or copy of such policy shall be delivered to Landlord
prior to the commencement of such proposed work. Tenant shall also maintain at
all times fire insurance with extended coverage in the name of Landlord and
Tenant as their interest may appear in an amount adequate to cover the cost of
replacement of all alterations, decorations, additions or improvements in and to
the Leased Premises, and all trade fixtures therein, in the event of fire or
extended coverage loss. Tenant shall deliver to Landlord certificates of such
fire insurance policies, which shall contain a clause requiring the insurer to
give Landlord ten (10) days notice of cancellation of such policies.
9
Section 9.4 MECHANIC'S LIENS. If by reason of any alterations, repair,
labor performed or materials furnished to the Leased Premises for or on behalf
of Tenant, any mechanic's or other lien shall be filed, claimed, perfected or
otherwise established as provided by law against the Leased Premises, Tenant
shall discharge or remove the lien by bonding or otherwise within thirty (30)
days after notice from Landlord to Tenant of the filing of same.
Section 9.5 TRADE FIXTURES. Provided Tenant is not in default hereunder,
Tenant shall have the right, at the termination of this lease, to remove any and
all trade fixtures, equipment and other items of personal property not
constituting a part of the freehold which it may have stored or installed in the
Leased Premises, including but not limited to counters, shelving, showcases,
chairs, and movable machinery purchased or provided by Tenant and which are
susceptible to being moved without damage to the building, provided this right
is exercised before the lease is terminated or during the ten (10) day period
immediately following such termination and provided that Tenant shall repair any
damage to the Leased Premises caused thereby. The right granted Tenant in this
Section 9.5 shall not include the right to remove any plumbing or electrical
fixtures or equipment, heating or air conditioning equipment, floor coverings
(including wall-to-wall carpeting) glued or fastened to the floors or any
paneling, tile, or other materials fastened or attached to the walls or
ceilings, all of which shall be deemed to constitute a part of the freehold,
and, as a matter of course, shall not include the right to remove any fixture or
machinery that was furnished or paid for by the Landlord. Buildings shall be
left in a broom-clean condition. If Tenant shall fail to remove its trade
fixtures or other property at the termination of this lease or within ten (10)
days thereafter, such fixtures and other property not removed by Tenant shall be
deemed abandoned by Tenant, and, at the option of Landlord shall become the
property of Landlord.
ARTICLE X
TAXES AND INSURANCE
Section 10.1 TENANT'S TAXES. Tenant covenants and agrees to pay promptly
when due all taxes imposed upon its business operation and its personal property
situated in the Leased Premises.
Section 10.2 TENANT'S PARTICIPATION IN REAL ESTATE TAXES. Landlord will
pay all real property taxes, which may be levied or assessed by any lawful
authority against the land and improvements in the property.
Section 10.3 LIABILITY INSURANCE. Lessee shall procure and keep in force
during the term hereof, without expense to Lessor, $1,000,000 umbrella insurance
coverage in the name of Lessee (and naming Lessor as an additional insured)
against any liability to the public resulting from any occurrence in or about
the premises and any building or improvements thereon to indemnify against the
claims of any person or persons for any damage, whether personal or property
damage. True copies of said policies or certificates thereof (showing the
premiums thereon to have been paid) shall be delivered to Lessee promptly upon
Lessor's request therefore. All such policies shall provide that they shall not
be cancelable by the insurer without first giving at least ten (10) days written
notice to Lessor. List as additional insured: Xxxxxxx Family Partnership I, c/o
X.X. Management, Inc., 000 Xxxxx Xxxxxx Xxx., Xxxxx 000, Xxxxxxxxxx, Xxxxxxx
00000.
Section 10.4 INCREASE IN FIRE INSURANCE PREMIUM. Tenant agrees that it
will not keep, use, sell or offer for sale in or upon the Leased Premises any
article, which may be prohibited by the standard form of fire insurance policy.
Tenant agrees to pay any increase in premiums for fire and extended coverage
insurance which may be carried by Landlord on the Leased Premises or the
building of which they are a part,
10
resulting from the type of merchandise sold or services rendered by Tenant in
the Leased Premises, whether or not Landlord has consented to the same. In
determining whether increased premiums are the result of Tenant's use of the
Leased Premises, a schedule, issued by the organization making the insurance
rate on the Leased Premises, showing the various components of such rate, shall
be conclusive evidence of the several items and charges which make up the fire
insurance rate on the Leased Premises.
Tenant shall not knowingly use or occupy the Leased Premises or any part
thereof, or suffer or permit the same to be used or occupied for any business or
purpose deemed extra-hazardous on account of fire or otherwise. In the event
Tenant's use and/or occupancy causes any increase or premium for the fire,
boiler and/or casualty rates on the Leased Premises or any part thereof above
the rate for the least hazardous type of occupancy legally permitted in the
Leased Premises, Tenant shall pay such additional premium on the fire, boiler
and/or casualty insurance policies. Tenant shall also pay in such event, any
additional premium on the rent insurance policy that may be carried by Landlord
for its protection against rent loss through fire. Bills for such additional
premiums shall be rendered by Landlord to Tenant at such times as Landlord may
elect, and shall be due from and payable by Tenant when rendered, and the amount
thereof shall be deemed to be, and be paid as, additional rent, but such
increases in the rate of insurance shall not be deemed a breach of this covenant
by Tenant.
Tenant shall pay as additional rent hereunder its Prorata Share of the
total premiums for liability and fire and extended coverage insurance (including
"Difference in Conditions" coverage) carried by Landlord with respect to the
property. Such amount shall be payable in advance on the first day of each
month, based on Landlord's actual estimate thereof from time to time. Following
each calendar year, Landlord shall furnish Tenant with a statement of the actual
amount of such expense for said period, and appropriate adjustment and payment
shall be made for any excess or deficiency. The initial monthly payment due
hereunder shall be the amount provided in Article I, Section 1.1.P. If the Lease
Term ends on any date other than December 31 of any year, Tenant's obligation
for the period commencing January 1 during such year and ending on the last day
of the Lease Term shall be prorated on a per diem basis and shall be payable by
Tenant notwithstanding that the premiums payable during such year have not been
determined as the end of the Lease Term.
Section 10.5 TENANT'S INSURANCE. During the Lease Term, Tenant, at its own
cost and expense, shall keep all furniture, fixtures, inventory and equipment,
whether supplied or owned by Tenant or by Landlord, and all glass forming a part
of the Leased Premises, including but not limited to plate glass, insured to the
extent of its full insurable value against loss or damage by fire and windstorm,
with extended coverage. Tenant shall also carry business interruption coverage
in amounts sufficient to pay the Fixed Rent hereunder. Tenant agrees that this
insurance and all other insurance carried by Tenant shall contain a waiver of
subrogation against Landlord. Tenant shall deliver certified copies of all
insurance policies to Landlord together with proof that the premiums have been
paid.
ARTICLE XI
DAMAGES, DESTRUCTION OR CONDEMNATION OF THE LEASED PREMISES
Section 11.1 DAMAGE OR DESTRUCTION BY FIRE OR OTHER CASUALTY. If the
Leased Premises is damaged or destroyed by fire, flood, tornado, or by the
elements, or through any casualty, or otherwise, after the commencement of the
Lease Term, this lease shall continue in full force and effect, and Landlord at
its expense shall promptly restore, repair or rebuild the Leased Premises
including but not limited to the store
11
front, to the same condition as it existed when the possession of the Leased
Premises were turned over to the Tenant at the commencement of the Lease Term,
within (90) days after such damage or destruction. In the event Landlord fails
to restore the Leased Premises as aforesaid, Tenant's sole remedy against
Landlord shall be to terminate this lease as of the date of such casualty. Rent
and additional rent, if any, shall xxxxx from the date of such damage or
destruction until ten (10) days after Landlord has repaired or restored the
building in the manner and in the condition provided in this Section and
notified Tenant of such fact.
In the event that a part only of the Leased Premises is untenantable or
incapable of use for the normal conduct of Tenant's business therein, a just an
proportionate part of the rent shall be abated from the date of such damage
until (10) days after Landlord has completely repaired same and notified Tenant
of such fact.
In the event that the Leased Premises shall be damaged in whole or in
substantial part within the last twenty-four (24) months of the Lease Term or
within the last twenty-four (24) months of the last renewal term, if renewals
are provided for herein, Landlord or Tenant shall have the option, exercisable
within ninety (90) days following such damage, of terminating this lease,
effective as of the date of mailing notice thereof.
No damage or destruction to the Leased Premises shall allow Tenant to
surrender possession of the Leased Premises nor affect Tenant's liability for
the payment of rent or any other covenant contained herein, except as may be
specifically provided in this lease. Notwithstanding any of the provisions
herein to the contrary, Landlord shall have no obligation to rebuild the
premises unless the damage or destruction is a result of a casualty covered by
Landlord's insurance policy.
Tenant shall give to Landlord prompt written notice of any damage to or
destruction of any portion of the Leased Premises resulting from fire or other
casualty.
Section 11.2 LOSS OR DAMAGE TO TENANT'S PROPERTY. Landlord shall not be
liable for any damage to property of Tenant or of others located on the Leased
Premises, nor for the loss of or damage to any property of Tenant, or of others
by theft or otherwise. Landlord shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or leaks from any part of the Leased Premises or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatsoever
nature. Landlord shall not be liable for any such damage caused by other tenants
or persons in the Leased Premises, occupants of property adjacent to the Leased
Premises, or public or quasi-public work.
Landlord shall not be liable for any latent defect in the Leased Premises or in
the building of which they form a part. All property of Tenant kept or stored on
the Leased Premises shall be so kept or stored at the risk of Tenant only, and
Tenant shall hold Landlord harmless from any claims arising out of damage to the
same, including subornation claims by Tenant's insurance carriers, unless such
damage shall be caused by the willful act or gross neglect of Landlord.
Section 11.3 CONDEMNATION. In the event the entire Leased Premises shall
be appropriated or taken under the power of eminent domain by any public or
quasi-public authority, this lease shall terminate and expire as of the date of
such taking, and Landlord and Tenant shall thereupon be released from any
further liability hereunder.
In the event more than fifteen percent (15%) of the floor area of the
Leased Premises shall be
12
appropriated or taken under the power of eminent domain by any public or
quasi-public authority, Tenant and Landlord shall have the right to cancel and
terminate this lease as of the date of such taking upon giving Landlord and
Tenant notice of such election within thirty (30) days after the receipt by
Tenant from Landlord of notice that said Leased Premises have been so
appropriated or taken. In the event of such cancellation, Landlord and Tenant
shall thereupon be released from any further liability under this lease.
Immediately after any appropriation or taking, Landlord shall give Tenant notice
thereof. If this lease shall not be terminated as provided in this section, then
Landlord shall restore the building and the monthly rental specified in this
Lease shall be ratably reduced according to the area of the leased premises
which is taken.
All compensation awarded or paid upon such a total or partial taking of
the Leased Premises shall belong to and be the property of Landlord without any
participation by Tenant; provided, however, that nothing contained herein shall
be construed to preclude Tenant from prosecuting any claim directly against the
condemning authority in such condemnation proceedings for loss of business,
and/or depreciation to, damage to, and/or cost of removal of, and/or for the
value of stock and/or trade fixtures, furniture and other personal property
belonging to Tenant; provided further, that no such claim shall diminish or
otherwise adversely affect Landlord's award or the award(s) of any and all
ground and underlying lessor(s) and mortgagee(s).
ARTICLE XII
DEFAULT BY TENANT AND REMEDIES
Section 12.1 DEFAULT. If Tenant fails to pay any rental due hereunder or
if Tenant defaults in fulfilling any of the covenants of this lease, Landlord
may give Tenant notice thereof. If payment is more than five (5) days late, a
late fee of 10% is assessed on midnight of the fifth day. If such default is not
remedied within five (5) days following such notice, all of Tenant's rights
under this lease shall terminate, and Tenant shall immediately quit and
surrender the premises to Landlord, but Tenant shall continue liable for the
payment of rent and other sums due hereunder. If the nature of the default is
such that it cannot reasonably be cured within the period of ten (10) days and
work thereon shall be commenced within the period and diligently prosecuted to
completion, Tenant's rights under this lease shall not terminate as a result of
such default being thus cured or corrected.
If at any time during the term there shall be filed by or against Tenant
or against any successor tenant then in possession, in any court pursuant to any
statute either of the United States or of any state, a petition (i) in
bankruptcy, (ii) alleged insolvency, (iii) for reorganization, (iv) for the
appointment of a receiver, or (v) for an arrangement under the Bankruptcy Act,
or if a similar type of proceeding shall be filed, Landlord may terminate
Tenant's rights under this lease by notice in writing to Tenant, and thereupon
Tenant shall immediately quit and surrender the Leased Premises to Landlord, but
Tenant shall continue liable for the payment of rent and all other sums due
hereunder.
Section 12.2 LANDLORD'S RIGHTS ON DEFAULT. If Tenant's rights under this
lease shall have terminated as above, Landlord may immediately, or at any time
thereafter, re-enter the Leased Premises and remove all persons and all or any
property therefrom, by a suitable action or proceeding at law, or by force or
otherwise possess and enjoy the premises, together with all additions,
alterations and improvements, and Landlord may, at its option, repair, alter,
remodel and/or change the character of the premises as it may deem fit and/or at
any time relet the Leased Premises or any part or parts thereof, as the agent of
Tenant or otherwise. The exercise by Landlord
13
of any right granted in the sentence immediately preceding shall not relieve
Tenant from the obligation to make all rental payments, and to fulfill all other
covenants required by this lease, at the time and in the manner provided herein,
and if Landlord so desires, all current and future rent and other monetary
obligations shall become due and payable. Tenant throughout the remaining term
hereof shall pay Landlord, no later than the last day of each month during the
term, the then current excess, if any, of the sum of the unpaid rentals over the
proceeds, if any, received by landlord from such reletting, if any. Landlord
shall not be required to relet the Leased Premises. The Landlord shall make
reasonable effort to relet the Leased Premises. If Landlord attempts to relet
the Leased Premises, Landlord shall be the sole judge as to whether or not a
proposed tenant is suitable and acceptable. Landlord's expenses incurred in
connection with such repair, alteration, remodeling or change, together with any
other expenses incurred by it in connection with the reletting of the Leased
Premises (including but not limited to brokerage fees, if any) shall be deemed
additional rentals payable hereunder.
In the event of a breach by Tenant of any of the covenants or provisions
hereof, Landlord shall have, in addition to any other remedies which it may
have, the right to invoke any remedy allowed at law or in equity to enforce
Landlord's rights or any of them, as if re-entry and other remedies were not
herein provided for.
Section 12.3 NON-WAIVER PROVISIONS. The failure of Landlord to insist upon
a strict performance of any of the terms, conditions and covenants herein shall
not be deemed to be a waiver of any rights or remedies that Landlord may have
and shall not be deemed a waiver of any subsequent breach or default in the
terms, conditions and covenants herein contained except as may be expressly
waived in writing.
The maintenance of any action or proceeding to recover possession of the
Leased Premises, or any installment or installments of rent or any other monies
that may be due or become due from Tenant to Landlord, shall not preclude
Landlord from thereafter instituting and maintaining subsequent actions or
proceedings for the recovery of possession of the premises or of any other
monies that may be due or become due from Tenant. Any entry or re-entry by
Landlord shall not be deemed to absolve or discharge Tenant from liability
hereunder.
Section 12.4 LANDLORD'S EXPENSES. If Tenant shall at any time be in
default hereunder, and if Landlord shall deem it necessary to engage attorneys
to enforce Landlord's rights hereunder, the determination of such necessity to
be in the sole discretion of Landlord, Tenant will reimburse Landlord for the
reasonable expenses incurred thereby, including but not limited to court costs
and reasonable attorney's fees. Notwithstanding, the above, in the event of
litigation, the non-prevailing party shall be liable for all attorney's fees
incurred by both the prevailing party and the non-prevailing party. If Tenant's
rights hereunder are not terminated, the amount of such expenses shall be deemed
to be additional rent hereunder and shall forthwith be due and payable by Tenant
to Landlord.
ARTICLE XIII
MORTGAGE FINANCING AND SUBORDINATION
Section 13.1 SUBORDINATION. This lease and all of Tenant's rights
hereunder are and shall be subordinate to any mortgages or deed of trust, which
Landlord may place upon the property. However, Tenant shall, upon request or
either Landlord or the holder of any mortgage or deed of trust on the property,
execute any documents expressly subordinating this lease to any mortgage or
mortgages now or hereafter placed upon the Landlord's interest in the premises
or future additions thereto, and Tenant shall execute and
14
deliver upon demand, such further instruments subordinating this lease to the
lien of any such mortgage or mortgages, provided such subordination shall be
upon the express condition that this lease shall be recognized by the mortgagees
and that the rights of Tenant shall remain in full force and effect during the
term of this lease and any extension thereof, notwithstanding any default by the
mortgagors with respect to the mortgages or any foreclosure thereof, so long as
Tenant shall perform all of the covenants and conditions of this lease. Tenant
agrees to execute all agreements required by Landlord's mortgagee or any
purchaser at a foreclosure sale or sale in lieu of foreclosure by which
agreements tenant will attorn to the mortgagee or purchaser.
Section 13.2 PRIMING THE LEASE. Any mortgagee may at its option elect to
subordinate the lien of its mortgage to this lease by executing and causing to
be recorded in the place where a deed to the property would be required to be
recorded, an instrument evidencing such subordination.
ARTICLE XIV
OTHER PROVISIONS
Section 14.1 INDEMNITY. Tenant during the term hereof shall indemnify and
save harmless Landlord from and against any and all claims and demands whether
for injuries to persons or loss of life, or damage to property, occurring within
the Leased Premises arising out of the use and occupancy of the Leased Premises
by Tenant, its agents, contractors, employees, servants, lessees or
concessionaires, excepting however such claims and demands, whether for injuries
or persons or loss of life, or damage to property, caused by acts or omissions
of Landlord or arising out of the use of the Common Facilities as defined in the
lease. If, however, any liability arises in the common area because of
negligence of Tenant, Tenant's agents, employees, contractors, invitees, or
visitors, then in such event Tenant shall hold Landlord harmless. Tenant shall
also pay all costs, expenses, and reasonable attorney's fees that may be
incurred or paid by Landlord in enforcing the covenants and agreements of this
Lease.
Section 14.2. DEFINITIONS AND LIABILITY OF LANDLORD. The term "Landlord"
as used in this lease means only the owner for the time being of the building in
which the Leased Premises are located or the owner of a leasehold interest in
the building and/or the land thereunder so that in the event of sale of the
building or an assignment of this lease, or a demise of the building and/or
land, Landlord shall be and hereby is entirely freed and relieved of all
obligations of Landlord hereunder and it shall be deemed without further
agreement between the parties and such purchaser(s), assignee(s), or lessee(s)
that the purchaser, assignee or lessee has assumed and agreed to observe and
perform all obligations of Landlord hereunder.
It is specifically understood and agreed that there shall be no personal
liability on Landlord in respect to any of the covenants, conditions or
provisions of this lease; in the event a breach or default by Landlord of any of
its obligations under this lease, Tenant shall look solely to the equity of
Landlord in the property for the satisfaction of Tenant's remedies.
Section 14.3 ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease
or sublet the Premises without the prior written consent of Lessor, which
consent will not be unreasonably withheld.
It is understood, however, that any such assignee shall be considered as
the tenant of the Lessor, and Lessor shall recover and be entitled to all rents
to be paid by such assignee notwithstanding that such rents may exceed the rent
provided for hereunder.
Any such assignment or sublease, whether by operation of law or otherwise,
made without Lessor's prior written consent shall entitle Lessor to declare
Tenant in default hereunder with the same force and
15
effect as though all rentals due and to become due hereunder were due and
payable and payment thereof had been refused by Tenant.
Notwithstanding any of the above, the Lessee shall remain as Guarantor
under this Lease.
Section 14.4 NOTICES. Whenever notice shall or may be given to either of
the parties by the other, each such notice shall be registered or certified mail
to Landlord, Xxxxxxx Family Trust I, c/o X X Management, Inc., 000 X. Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000.
Notice to Landlord shall be addressed as specified in Article I, Section
1.1. B., and notice to Tenant shall be addressed as specified in Article I,
Section 1.1 D., or in each case, to such other address as either may from time
to time designate in writing to the other. Any notice under this lease shall be
deemed to have been given at the time it is placed in the mail with sufficient
postage prepaid.
Section 14.5 INTEREST ON LATE PAYMENTS. See Addendum attached hereto.
Section 14.6 SHORT FORM LEASE. Tenant agrees not to record this lease
without the express written consent of Landlord and further agrees to execute,
acknowledge and deliver at any time after the date of this lease, at the request
of Landlord, a short form lease suitable for recording.
Section 14.7 TENANT'S NOTICE TO LANDLORD OF DEFAULT. Should Landlord be in
default under any of the terms of this lease, Tenant shall give Landlord prompt
written notice thereof in the manner specified in Section 14.4 and Tenant shall
allow Landlord a reasonable length of time (in any event, not less than thirty
(30) days from the date of such notice) in which to cure such default.
Section 14.8 SURRENDER OF LEASED PREMISES AND HOLDING OVER. At the
expiration of the tenancy hereby created, Tenant shall surrender the Leased
Premises in the same condition as the Leased Premises were in upon delivery of
possession thereof to Tenant, reasonable wear and tear excepted, and damage by
unavoidable casualty excepted to the extent that the same is covered by
Landlord's fire insurance policy with extended coverage endorsement, and Tenant
shall surrender all keys for the Leased Premises to Landlord at the place then
fixed for the payment of rent and shall inform Landlord of all combinations of
locks, safes and vaults, if any, in the Leased Premises. Tenant shall remove all
its trade fixtures as specified in Section 9.5 and any alterations or
improvements, before surrendering the Leased Premises, and shall repair any
damage to the Leased Premises caused thereby. Tenant's obligations to observe or
perform this covenant shall survive the expiration, whether or not with the
consent or acquiescence of Landlord, shall be deemed to be that of a tenancy at
will and in no event from month to month or from year to year, and it shall be
subject to all the terms, covenants and conditions of this lease applicable
thereto, and no extension or renewal of this lease shall be deemed to have
occurred by such holding over. Any holding over after the expiration of the
term, with the express or implied consent of Lessor shall be construed to be a
tenancy from month to month only, at 200% of the rental per month as paid during
the last month of the term and upon all other terms and conditions as are herein
set forth.
Section 14.10 SECURITY DEPOSITS. Tenant, contemporaneously with the
execution of this lease, has deposited with Landlord the Security Deposit as
defined in Section 1.1 Q. above; receipt of which is hereby acknowledged by
Landlord. This deposit shall be held by Landlord with liability for interest as
security for
16
the faithful performance by Tenant of all of the terms, covenants, and
conditions of this lease by Tenant to be kept and performed during their term.
If at any time during the term of this lease any of the rent shall be overdue
and unpaid, or any other sum payable by Tenant to Landlord shall be overdue and
unpaid, then Landlord may at its option appropriate and apply the entire
Security Deposit, or so much thereof as may be necessary, to compensate the
Landlord for loss or damage sustained or suffered by Landlord due to such breach
on the part of Tenant. Should the entire deposit, or any portion thereof, be
apportioned and applied by landlord for the payment of overdue rent or other
sums due and payable to Landlord by Tenant, then Tenant shall upon the written
demand of Landlord, remit to Landlord as additional rental a sufficient amount
in cash to restore said security to the original sum deposited, and Tenant's
failure to do so within five (5) days after receipt of such demand shall
constitute a breach of this lease. Should Tenant comply with all of the terms
covenants and conditions and shall promptly pay all of the rental herein
provided for as it falls due, and all other sums payable by Tenant to Landlord,
the Security Deposit shall be returned in full to Tenant at the end of this
lease or upon the earlier termination of this lease.
Section 14.11 ENTIRE AND BINDING AGREEMENT. This Lease contains all of the
agreements between the parties hereto, and it may not be modified in any manner
other than by agreement in writing signed by all the parties hereto or their
successors in interest. The terms, covenants and conditions contained herein
shall inure to the benefit of and be binding upon Landlord and Tenant and their
respective successors and assigns, except as may be otherwise expressly provided
in this lease.
Section 14.12 PROVISIONS SEVERABLE. If any term or provision of this lease
or the application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this lease, or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable shall not be affected thereby and each term and
provision of this lease shall be valid and be enforce to the fullest extent
permitted by law.
Section 14.13 CAPTIONS. The captions contained herein are for convenience
and reference only an shall not be deemed as a part of this lease or construed
as in any manner limiting or amplifying the terms and provisions of this lease
to which they relate.
Section 14.14 RIDER. A rider consisting of SIX (6) page(s) with Exhibits
lettered A,B,C,D,E,F is annexed hereto and made a part hereof.
IN WITNESS THEREOF, Landlord and Tenant have duly executed this lease as of the
day and year first above written, each acknowledging receipt of an executed copy
hereof.
Signed, sealed and delivered LANDLORD
in the presence of: Xxxxxxx Family Partnership I, Ltd.
/s/ By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------- ---------------------------------
Witness Xxxxxx X. Xxxxxxxxx, as agent for
17
Xxxxxxx Family Partnership I, Ltd.
/s/
----------------------
Witness
Signed, sealed and delivered TENANT
in the presence of:
/s/ By: /s/ Xxxx Xxxxxx
---------------------- ----------------------
Witness
xXXXXXXXXXX.XXX
/s/ XXXX XXXXXX, PRESIDENT / CEO
---------------------- ----------------------------
Witness Print Name
18
