EXHIBIT 10.17
LEASE AGREEMENT
THIS AGREEMENT OF LEASE, by and between PORT 95-4, LTD. a
Florida limited partnership, (hereinafter referred to as the
"Landlord") and INTERNATIONAL AIRLINE SUPPORT GROUP, INC., a
Delaware corporation (hereinafter referred to as the "Tenant").
WITNESSETH, That in consideration of the mutual covenants
and agreements herein contained, it is agreed by and between
Landlord and Tenant as follows:
1. Basic Lease Provisions and Definitions. This Paragraph
1 is an integral part of this Lease and all of the terms hereof
are incorporated into this Lease in all respects. In addition to
the other provisions which are elsewhere defined in this Lease,
the following, whenever used in this Lease, shall have the
meanings set forth in this Paragraph, unless such meanings are
expressly contradicted, limited or expanded elsewhere herein:
1. DATE OF LEASE: As of this 26th day of March, 1997.
2. LANDLORD'S MAILING ADDRESS: 0000 X. X. 00xx
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxx 00000
3. TENANT'S CORPORATE MAILING ADDRESS: 0000 Xxxxxxx
Xxxx, Xxxxx 000, Xxxxxxx, XX 00000
4. INTENTIONALLY DELETED.
5. PRE-PAID RENT, SECURITY DEPOSITS (Par. 12):
$30,000.00 as Security Deposit
6. DEMISED PREMISES: See Exhibit A attached hereto
and made a part hereof; together with all improvements
therein such premises are deemed to be 29,520 sq. ft. in
Building 4, located at 0000 X.X. 00xx Xxxxxx, Xxxxxxxxx,
Xxxxxxx.
7. LEASE TERM: ("Lease Term" or "term of this Lease")
(Par. 3): five (5) years. The commencement date of the
Lease Term is June 1, 1997 (the "Lease Commencement Date")
or upon receipt of a Certificate of Occupancy for the
warehouse portion of the Demised Premises from the City of
Hollywood Building, Dept., whichever occurs later.
8. MINIMUM RENT (Par. 4):
(1) During the first (1st) lease year ("Base Rent
Year"), (to-wit: June 1, 1997 through May 31, 1998 or the first
twelve months from the Rent Commencement Date as herein defined),
the minimum rent due the Landlord (the "Rent" or "Minimum Rent")
shall be in the amount of ONE HUNDRED NINETY-ONE THOUSAND EIGHT
HUNDRED EIGHTY AND NO/100 DOLLARS ($191,880.00) per annum,
consisting of $152,028.00 as "Base Rent" and $39,852.00 as
"Expenses," payable in advance, at the rate of FIFTEEN THOUSAND
NINE HUNDRED NINETY AND NO/100 DOLLARS ($15,990.00) per month,
together with applicable Florida sales and/or rent taxes thereon,
the payment of such Rent to commence on June 2, 1997 (the "Rent
Commencement Date") or one (1) day after the Lease Commencement
Date.
(2) Beginning the second lease year (to-wit: June
1, 1998 through May 31, 1999 or the second twelve months from the
Rent Commencement Date as herein above defined), the Rent due
Landlord annually for the Demised Premises shall be One Hundred
Ninety-Six Thousand Four Hundred Forty and Eighty-four Cents
($196,440.84) consisting of $156,588.84 as "Base Rent" and
$39,852.00 as "Expenses," plus any increased Expenses pursuant to
paragraph 1 (h)(3) below, payable monthly, in advance, at a rate
of Sixteen Thousand Three Hundred Seventy Dollars and Seven Cents
($16,370.07), plus any applicable sales and/or rent taxes
thereon; beginning the third lease year (to-wit: June 1, 1999
through May 31, 2000 or the third twelve months from the Rent
Commencement Date as herein above defined), the Rent due Landlord
annually for the Demised Premises shall be Two Hundred One
Thousand One Hundred Thirty-eight Dollars and Sixty Cents
($201,138.60), consisting of $161,286.60 as "Base Rent" and
$39,852.00 as "Expenses," plus any increased Expenses pursuant to
Paragraph 1 (h)(3) below, payable monthly, in advance, at a rate
of Sixteen Thousand Seven Hundred Sixty-One Dollars and Fifty-
Five Cents ($16,761.55), plus any applicable sales and/or rent
taxes thereon; beginning the fourth lease year (to-wit: June
1,2000 through May 31, 2001 or the fourth twelve months from the
Rent Commencement Date as herein above defined), the Rent due
Landlord annually for the Demised Premises shall be Two Hundred
Five Thousand Nine Hundred Seventy-Seven Dollars and Twenty-Four
Cents ($205,977.24) consisting of $166,125.24 as "Base Rent" and
$39,852.00 as "Expenses," plus any increased Expenses pursuant to
Paragraph 1 (h)(3) below, payable monthly, in advance, at a rate
of Seventeen Thousand One Hundred Sixty-Four Dollars and Seventy-
Seven Cents ($17,164.77), plus any applicable sales and/or rent
taxes thereon; beginning the fifth lease year (to-wit: June 1,
2001 through May 31, 2002 or the fifth twelve months from the
Rent Commencement Date as herein above defined), the Rent due
Landlord annually for the Demised Premises shall be Two Hundred
Ten Thousand Nine Hundred Sixty-One Dollars and Eight Cents
($210,961.08), consisting of $171,109.08 as "Base Rent" and
$39,852.00 as "Expenses," plus any increased Expenses pursuant to
Paragraph 1 (h)(3) below, payable monthly, in advance, at a rate
of Seventeen Thousand Five Hundred Eighty Dollars and Nine Cents
($17,580.09), plus any applicable sales and/or rent taxes
thereon.
(3) For the purpose of this Lease, "Expenses"
shall be defined as all reasonable expenses for operation,
repair, replacement and maintenance as necessary to keep the
Premises, the building of which the Demised Premises is a part
(the "Building"),. and the common areas surrounding the Building,
driveways, and parking areas associated therewith in good order,
condition and repair, including, but not limited to, utilities
for the common areas of and relating to the Building, Real
Property Taxes, insurance, expenses associated with the driveways
and parking areas (including sealing, restriping and trash
removal), security systems, lighting facilities, landscaped
areas, walkways, directional signage, curbs, drainage strips, and
water and sewer lines. Expenses shall not include costs for
capital expenditures, repairs or replacements, which under sound
accounting principles and practices should be classified as
capital expenditures; the cost of acquisition of new land or
construction of new buildings; depreciation on Landlord's
original investment; lease concessions; lease takeover
obligations; the cost of repair or other work, including
rebuilding occasioned by fire, windstorm, or other casualty or
condemnation; any expenses representing an amount paid to a
related corporation, entity, or person which is in excess of the
amount which would be paid in the absence of such relationship;
any cost to the extent that Landlord is entitled to be reimbursed
by any other tenant; the cost of any items for which Landlord is
reimbursed by insurance or otherwise compensated by parties other
than tenants of the Building; any cost, fines, or penalties due
to Landlord's violation of any governmental rule or authority;
all costs and expenses associated with the removal and clean up
of Hazardous or Toxic Substances, unless caused by Tenant; costs
incurred due to violations by Landlord of any of the terms and
conditions of this Lease. Landlord hereby represents that the
Base Rent Year Expenses referenced in this Lease represent a pro-
rata portion of expenses related to the Building allocable, and
allocated, in a fair manner, to Tenant's pro-rata portion
thereof. For the Base Rent Year, the Expenses payable by the
Tenant, shall be $ 1.35 per square foot of the Demised Premises
(the "Base Rent Year Expenses"). In the event the Expenses
incurred by Landlord for the Demised Premises or Building in any
lease year during the Lease Term after the Base Rent Year exceed
an amount equal to $ 1.35 per square foot of the Demised
Premises, Tenant will pay to Landlord such additional amount per
square foot of the Demised Premises (the "Additional Expenses")
as additional rent hereunder. Such payment shall be in addition
to the $ 1.35 per square foot payment, not in lieu thereof. In
any lease year after the Base Rent Year in which the Expenses
incurred by Landlord for the Demised Premises or Building exceed
an amount equal to $ 1.35 per square foot of the Demised
Premises, within a reasonable time after the end of such lease
year, Landlord shall submit to Tenant a statement of the actual
amount of Expenses for such lease year, and the actual amount
owed by Tenant, and Tenant shall pay such amount, in twelve (12)
installments, with the next twelve (12) payments of Rent
hereunder. Provided however, in no event shall the Expenses be
reduced below $ 1.35 per square feet of the Demised Premises, nor
shall the Additional Expenses be increased more than three
percent (3 %) over the "controllable" Base Rent Year Expenses for
the second lease year or more than three percent (3%) over the
sum of the "controllable" Base Rent Year Expenses and any
Additional Expenses ("controllable" only) for the prior lease
year. Notwithstanding the three percent (3%) cap as herein
identified, any wrongful or negligent acts by Tenant, its agents,
employees, contractors resulting in an increased cost thereafter
to Landlord, then the three percent (3%) cap does not apply to
that portion of the controllable Expenses, if incurred after the
wrongful or negligent act. During the 60-day period after Tenant
receives notice from Landlord that Landlord desires to collect
Expenses in excess of the Base Rent Year Expenses, Tenant shall
have the right to review and audit Landlord's records concerning
Expenses at Landlord's location stated in Paragraph 1 lb) above.
If such audit reveals that Landlord has overstated Expenses by
more than two percent (2%), then Landlord shall immediately
refund the overpayment to Tenant and shall, in addition,
immediately reimburse Tenant for all costs of such audit Tenant's
professional fees. In the event that Landlord has overstated
expenses by less than two percent (2%), then Landlord shall
immediately refund the overpayment to Tenant, but Landlord shall
not be liable for any costs incurred in connection with the
audit.
(4) Expenses shall not include:
(2) Costs of special services rendered to
individual tenants;
(3) Interest and principal payments on loans or
indebtedness secured by the Building;
(4) Costs of improvements for other tenants of
the Building;
(5) Legal fees, brokerage commissions,
advertising costs, or other related expenses incurred
by Landlord in connection with the leasing of space to
individual tenants in the Building;
(6) Repairs, alterations, additions,
improvements, or replacements made to rectify or
correct any defect in the original design, materials or
workmanship of the Building or common areas;
(7) Damage and repairs necessitated by the gross
negligence or willful misconduct of Landlord, or its
employees, contractors or agents;
(8) Executive salaries or salaries of service
personnel to the extent that such service personnel
perform services not in connection with the management,
operation, repair or maintenance of the Building;
(9) Landlord's general overhead expenses;
(10) Legal fees, accountants' fees and other
expenses incurred in connection with disputes with
tenants or other occupants of the Building or
associated with the enforcement of the terms of any
leases with tenants or the defense of Landlord's title
to or interest in the Building or any part thereof;
(11) Costs (including permit, license and
inspection fees) incurred in renovation or otherwise
improving, decorating or painting, or altering space
for individual tenants or vacant space in the Building;
(12) Costs incurred due to a violation by Landlord
or any other tenant of the Building of the terms and
conditions of a lease;
(13) Ground rental payments;
(14) The costs of alterations to the Premises or
the premises of other tenants of the Buildings, or work
furnished by Landlord; without charge as an inducement
for a tenant to lease space leg., free rent,
improvement allowances);
(15) Income or franchise taxes or other such taxes
unless imposed in lieu of Taxes imposed or measured by
the income of Landlord from the operation of the
Buildings;
(16) Legal expenses incurred in connection with
tenant(?) leases including, without limitation,
negotiations with prospective tenants and enforcing
provisions of this Lease or other leases in the
Buildings; and
(17) Debt costs or the costs of financing or
refinancing.
9. PERMITTED USE (Par. 9): The Tenant shall use the
Demised Premises solely as follows: aircraft engine repairs
and aircraft engine parts storage.
2. Demised Premises. Landlord leases to Tenant and Tenant
rents from Landlord a portion of the real property described and
shown on Exhibit "A" (the "Site Plan"), together with the
equipment and other improvements located therein.
It is expressly understood and agreed that the Demised
Premises together with all equipment, structures and improvements
therein and any and all fixtures, accessories and utilities
located therein or thereon, are delivered to Tenant and accepted
by Tenant in an AS-IS and WHERE-IS condition and repair and that
the Landlord makes no warranties, representations or guarantees
of any kind, nature or sort, express or implied with respect to
the Demised Premises, including but not limited to, any and all
fixtures, equipment, improvements, accessories and utilities
located in or upon the Demised Premises, unless stated to the
contrary herein.
3. Term/Commencement Dated. The term of this Lease, shall
be for the number of years in the Lease Term set forth in
Paragraph 1 (g) hereof, following the commencement thereof unless
sooner terminated or extended as hereinafter provided.
4. Rent. Minimum Rent: Tenant agrees to pay to Landlord
during the Lease Term, without previous demand therefor and
without any setoffs or deductions whatsoever, the Minimum Rent,
in advance, on the first day of each and every calendar month
throughout the Lease Term together with any and all applicable
Florida sales and/or rent taxes thereon ("Taxes"). In the event
the Rent Commencement Date is after June 1, 1997, or other than
the first day of a calendar month, the Minimum Rent (as well as
all additional rents and charges reserved under this Lease) for
the portion of the then current calendar month shall be prorated
on the basis of a thirty (30) day month and shall be due and paid
immediately on the Rent Commencement Date.
5. Additional Rent. The Landlord shall receive the rents,
additional rents and all sums payable by the Tenant under this
Lease free of all taxes, expenses, charges, damages and
deductions of any nature whatsoever and the Tenant covenants and
agrees to pay all sums which except for this Lease would have
been chargeable against the Demised Premises and payable by the
Landlord. The Tenant shall, however, be under no obligation to
pay interest on any mortgage on the fee of the Demised Premises,
any franchise, capital or income tax payable by the Landlord, or
any gift, inheritance, transfer estate or succession tax by
reason of any present or future law which may be enacted during
the term of this Lease. All taxes, charges, costs and expenses
which the Tenant is required to pay hereunder, together with all
interest that shall accrue thereon in the event of the Tenant's
failure to pay such amounts and all damages, costs and expenses
which the Landlord may incur by reason of any default of the
Tenant or failure on the Tenant's part to comply with the terms
of this Lease shall be deemed to be additional rent and in the
event of nonpayment by the Tenant, the Landlord shall have all
the rights and remedies with respect thereto as a Landlord for
the nonpayment of the Rent.
Landlord, at its election, shall have the right (but not the
obligation) to pay for or perform any act which requires the
expenditure of any sums of money by reason of the failure or
neglect of Tenant to perform any of the provisions of this Lease
within the grace period, if any, applicable thereto, and in the
event Landlord shall at its election pay such sums or perform
such acts requiring the expenditure of monies, Tenant agrees to
reimburse and pay Landlord, upon demand, all such sums, which
shall be deemed for the purpose of securing the collection
thereof to be additional rent hereunder and payable by Tenant as
such.
6. Past Due Rents Minimum Rent is due and payable on, the
first day of each and every month during the term of this Lease.
Provided Landlord has not exercised his right to evict Tenant as
a result of non-payment of the Minimum Rent as herein provided, a
late charge of five percent (5%) of the rent due shall be imposed
on each and every payment of the rent not received by the
Landlord prior to the fifth (5th) day of each month. The late
charge is not a penalty, but liquidated damages to defray
administrative and related expenses due to such late payment of
rent. The late charge shall be immediately due and payable to the
Landlord without further notice or demand. The provisions herein
for late charge shall not be construed to extend the date for
payment of any sums required to be paid by Tenant hereunder or to
relieve Tenant of its obligation to pay all such sums at the time
or times herein stipulated. Notwithstanding the imposition of
such late charge pursuant to this paragraph, Tenant shall be in
default under the Lease if any or all payments required to be
made by Tenant are not made at the time therein stipulated
(subject to any applicable cure or grace period) and neither the
demand nor collection by Landlord of such late charges shall be
construed as a cure for such default on the part of the Tenant.
7. Place of Payments or Statements. All payments required
to be paid by Tenant to Landlord shall be made payable to the
Landlord or its designee, and all such payments, statements and
reports required to be rendered by Tenant to Landlord shall be
delivered to the Landlord's mailing address, or at such other
place as Landlord may from time to time designate in writing,
without the necessity of any prior demand for same.
1.
8. Tenant's Work. Except as expressly provided on the
Schedule of Landlord's Work, attached hereto as Exhibits "B" and
"C", any additional work, repairs, improvements, fixtures and
equipment for the Demised Premises shall be performed and
installed by Tenant at its sole cost and expense. Tenant
acknowledges that Tenant, as an inducement to Landlord to enter
into this lease, has covenanted and agreed and does hereby
covenant and agree to adequately prepare the Demised Premises for
the operation of the Permitted Use, all in accordance with the
terms and provisions of this Lease, and in addition, Tenant shall
fully equip the Demised Premises with all trade equipment and any
other equipment necessary for the operation of Tenant's Business
at its sole cost and expense (any such work performed by or on
behalf of Tenant during the term of this Lease or any extension
thereof being herein referred to as "Tenant's Work"). Landlord
warrants that all of Landlord's work will be done in a good and
workmanlike manner, in accordance with all laws, rules, orders,
governmental regulations (including ADA) and free from material
defects.
9. Use of Premises. Tenant shall use the Demised Premises
solely for the purpose of conducting the Permitted Use as set
forth in Paragraph 1 (i) and strictly in accordance with all
laws, statutes and ordinances applicable thereto. Tenant shall
not use or permit or suffer the use of the Demised Premises for
any other business purpose without the Landlord's prior written
consent, which shall not be unreasonably withheld.
10. Laws. Permits, Licenses, Waste, Nuisance. Tenant
shall, at its own expense and cost: (a) comply with all
governmental laws, ordinances, orders and regulations affecting
the Demised Premises now in force or which hereafter may be in
force (including without limitation, all environmental laws and
regulations); (b) apply for, secure, maintain in good standing
and comply with all licenses, permits and franchise agreements
which are or maybe required for the conduct by the Tenant of the
Tenant's operations and/or business herein permitted to be
conducted in the Demised Premises and to pay if, as, and when
due, all license, permit and franchise fees and charges in
connection therewith; (c) comply with and execute all rules,
requirements and regulations of the Board of Fire Underwriters,
Landlord's insurance companies and other organizations
establishing insurance rates; (d) not suffer, permit or commit
any waste or nuisance; and (e) not conduct any auction, distress,
fire or bankruptcy sale in or upon the Demised Premises.
Anything to the contrary notwithstanding, none of the obligations
in this Section 10 shall be interpreted to impose upon Tenant the
obligation to repair or correct any defect in the Landlord's
Work.
11. Assignment and Subletting. Tenant shall not assign,
sublet, mortgage or encumber this Lease, in whole or in part, or
sublet all or any portion of the Demised Premises or assign this
Lease or any part thereof without the prior written consent of
the Landlord. The Landlord shall be entitled to consider all
factors which it deems relevant to any requested consent to
subletting or assignment, including, but not limited to, the
following: (a) the financial responsibility of the proposed sub-
Tenant or assignee; (b) the business reputation, experience and
acumen of the proposed sub-Tenant or assignee in the field of the
Permitted Use and (c) the need for alteration and/or repair of
the Demised Premises; however, in no event shall such sub-tenant
or assignee be an existing occupant or Affiliate of such occupant
(as hereinafter defined) of the Building or Complex (of which the
Premises is a part). If such consent be obtained then, such
subletting or assignment, as the case may be, shall be subject to
and conditioned upon the following: (i) at the time of any such
proposed subletting or assignment, Tenant shall not be in default
under any of the terms, provisions or conditions of this Lease;
(ii) the sub-Tenant or assignee shall occupy the Demised Premises
and conduct its business in accordance with the Permitted Use;
(iii) if the minimum rent, additional rents or other rents or
charges required to be paid by any such sub-Tenant or assignee
exceeds the rentals and/or charges reserved hereunder, then
Tenant shall pay to Landlord monthly such excess, which shall be
deemed additional rent; (iv) Tenant and its assignee or sub-
Tenant shall execute, acknowledge and deliver to Landlord a fully
executed counterpart of a written assignment of lease or
sublease, as the case may be, duly consented to by Tenant's
guarantor, if any, by the terms of which: (1) in case of an
assignment, Tenant will assign to such assignee Tenant's entire
interest in this Lease, together with all prepaid rents and
rights to the Security Deposit hereunder, and the assignee will
accept said assignment and assume and agree to perform, directly
for the benefit of Landlord, all of the terms, covenants and
conditions of this Lease on Tenant's part to be performed
hereunder; or (2) in case of a subletting, the sublease and the
sub-Tenant's interest therein will in all respects be subject and
subordinate to all of the terms, covenants and conditions of the
Lease and the sub-Tenant thereunder will agree to be bound by and
to perform all of the terms, covenants and conditions of this
Lease on Tenant's part to be performed hereunder, except the
payment of rent, additional rents and other charges reserved
hereunder, which Tenant shall continue to pay to Landlord; iv)
notwithstanding any such assignment of subletting under the terms
of this Paragraph, both Tenant and its guarantor, if any, will
acknowledge that, notwithstanding such assignment or sublease and
the consent of Landlord thereto, both Tenant, and its guarantor,
if any, will not be released or discharged from any liability
whatsoever under this Lease and will continue to be fully liable
thereon. The consent by Landlord to any assignment or subletting
shall not constitute a waiver of the necessity of such consent to
any subsequent assignment or subletting. This prohibition
against any assignment or subletting shall be construed to
include a prohibition against any assignment or subletting by
operation of law. If this Lease be assigned or if the Demised
Premises or any part thereof be occupied by anybody other than
Tenant, Landlord may collect rent from the assignee, or occupant
and apply the net amount collected to the rent herein reserved,
but no such assignment, underletting, occupancy or collection
shall be deemed waiver of the provisions of the acceptance of the
assignee, sub-Tenant or occupant as Tenant, or as a release of
Tenant from the further performance by Tenant of the provisions
on its part to be observed or performed herein. Notwithstanding
any assignment or sublease, Tenant shall remain fully liable and
shall not be released from performing any of the terms of this
Lease. If Tenant or Tenant's controlling shareholder or
controlling partner, if any and as the case may be, or Tenant's
guarantor, it' any, is a corporation or partnership, and if at
any time during the term of this Lease the person or persons who,
on the Date of Lease, own or owns fifty (50%) percent or more of
such corporation's voting shares or a general partner's interest
in such partnership, as the case may be, or if Tenant's
guarantor, if any, ceases to own fifty (50%) percent or more of
such corporation's voting shares or a general partner's interest
in such partnership or if same is dissolved, then upon such
occurrence there shall be deemed to be an assignment of this
Lease, which assignment shall require the prior written consent
of Landlord, as more particularly set forth above. This
subsection (c), shall not be applicable to any corporation, all
the outstanding voting stock of which is listed on a national
securities exchange (as defined in the Securities Exchange Act of
1934, as amended). For the purposes hereof, an Affiliate means a
corporation or other business entity that directly or indirectly
controls, is controlled by, or is under common control with such
occupant.
12. Security Deposit.
1. Tenant has deposited with Landlord the Security
Deposit of $30,000.00, the receipt whereof, if by check
subject to collection, is hereby acknowledged, and said
Security Deposit shall be held by Landlord, as security for
the full and faithful performance by Tenant of each and
every term, covenant and condition of this Lease on the part
of Tenant to be observed and performed. Such Security
Deposit shall not be mortgaged, assigned, transferred or
encumbered by Tenant without the prior written consent of
Landlord. Any such act on the part of Tenant shall be
without force and effect, shall not be binding upon
Landlord, and, at the option of Landlord, shall constitute
an Event of Default under Paragraph 22 hereof.
2. At any time during the pendency of an uncured
Event of Default by Tenant under this Lease, the Landlord
may, at its option, and without notice to Tenant or
prejudice to any other remedy which Landlord may have on
account thereof, appropriate and apply said entire Security
Deposit or so much thereof as may be necessary to compensate
Landlord toward the payment of such rents or other sums due
from Tenant, or towards any loss, damage or expense
(including without limitation, administrative costs and
attorneys' fees) sustained by Landlord resulting from such
default on the part of Tenant; and in such event Tenant
shall forthwith upon demand and without any setoffs or
deductions whatsoever restore said Security Deposit to the
original sum deposited. In the event Tenant shall fully and
faithfully comply with all of the terms, covenants and
conditions of this Lease and promptly pay all of the rentals
as they fall due and all other sums payable by Tenant to
Landlord, said Security Deposit shall be returned in full to
Tenant, within thirty (30) days following the date of the
expiration of the term hereof and the surrender of the
Demised Premises by Tenant in compliance with the provisions
of this Lease.
3. In the event any bankruptcy, insolvency,
reorganization or other creditor-debtor proceedings shall be
instituted by or against Tenant, or its successors or
assigns, or any guarantor of Tenant hereunder, such Security
Deposit shall be deemed to be applied first to the payment
of any rents and/or other charges due Landlord for all
periods prior to the institution of such proceedings and the
balance, if any, of such Security Deposit may be retained by
Landlord in partial satisfaction of Landlord's damages.
4. Landlord may deliver the Security Deposit to the
purchaser of Landlord's interest in the Demised Premises in
the event that such interest be sold or transferred and
thereupon Landlord shall be discharged and released from all
further liability with respect to such Security Deposit or
the return thereof to Tenant; Tenant agrees to look solely
to the new Landlord for the return of said Security Deposit,
and this provision shall also apply to any subsequent
transferees, provided that new Landlord or transferee
assumes, in writing, Landlord's obligation under this Lease.
No holder of a mortgage or deed of trust, or Landlord under
a ground or underlying lease, if any, to which this Lease is
or may be subordinate, shall be responsible in connection
with the Security Deposit hereunder, unless such mortgagee
or holder of such deed of trust or Landlord shall have
actually received same.
13. Repairs.
1. Except as expressly provided on the Schedule of
Landlord's Work attached hereto as Exhibit "B", "C", or
under "B." herein, Landlord shall not be required to make
any repairs or improvements of any kind or nature whatsoever
upon or to the Demised Premises or improvements therein.
2. Landlord's Repairs - Landlord, during the lease
term shall, at its expense, be obligated to repair and
maintain the following: the roof; all structural components
of the Demised Premises; pipes and plumbing; electrical;
sewage facilities; driveways; parking areas, paved areas and
sidewalks; foundations and subfloor; and exterior walls.
Tenant shall give Landlord written notice of any needed
repairs which are the obligation of the Landlord. Tenant's
Repairs - Tenant, during the lease term shall, at its
expense, maintain and repair all interior components of the
Demised Premises, the ventilation and air conditioning, and
bay doors. Tenant further agrees that all damages or injury
done to or on the Demised Premises by Tenant or by any
person, other than Landlord or Landlord's agents, servants,
employees, invitees, licensees, and contractors, shall be
repaired by Tenant at its expense. Tenant agrees at the
expiration of the lease term or upon the earlier termination
thereof, to surrender the Demised Premises in good condition
and repair, reasonable wear and casualty excepted. All
repairs shall be made within fifteen (15) days after notice
from the other party, unless such repair cannot reasonably
be completed within said fifteen (15) day period, in which
case the party obligated to make such repair shall commence
the repair within said fifteen (15) day period and
diligently continue steps to finish such repair in a timely
manner.
3. Tenant agrees to make no alterations, improvements
or additions in or to the Demised Premises, nor to install
any equipment therein (other than trade fixtures) without,
in each instance, obtaining Landlord's prior written
approval thereof, which consent Landlord shall not
unreasonably withhold. Any such alterations, improvements
or additions shall be made in accordance with the terms and
provisions of Paragraph 8 hereof. Notwithstanding the
foregoing, Tenant shall be permitted to make non-structural
interior alterations, improvements or repairs without the
Landlord's prior written approval, provided that the cost of
same will not exceed Ten Thousand ($10,000.00) Dollars in
the aggregate during any calendar year. At the time such
approval is sought, Tenant shall submit to Landlord plans
and specifications for such work and the name of the
contractor who Tenant proposes to engage to perform the
same. After having obtained Landlord's written approval, as
aforesaid, and prior to the commencement of any such work,
Tenant agrees to deliver to Landlord the approval of any and
all governmental authorities and departments having
jurisdiction thereof together with a policy or certificate
of worker's compensation insurance in statutory limits from
Tenant's contractor and, if the cost of the proposed work
shall exceed $25,000.00, evidence of the maintenance by
Tenant of all other insurance coverages to be maintained by
Tenant hereunder. Such work may thereupon be commenced and
shall be diligently prosecuted to completion in a first
class workmanlike manner in accordance with such approved
plans and specifications and in accordance with all
applicable laws and ordinances as well as rules and
requirements of Landlord's insurance carriers, subject,
however, to Tenant's obligation to insure such assumed
liability under Tenant's Comprehensive General Liability
Policy.
14. Failure to Repair. If Tenant (a) refuses to or
neglects to make repairs required of Tenant by this Lease, or (b)
if Landlord is required to make any repairs by reason of Tenant's
negligent acts or omissions, Landlord shall have the right, but
shall not be obligated, to make such repairs, on behalf of and
for the account of Tenant. In such event, such work shall be paid
for by Tenant as additional rent promptly upon receipt of a xxxx
therefor.
15. Covenant Against Liens. Notwithstanding any other
provisions of this Lease, Landlord and Tenant expressly
acknowledge and agree that the interest of Landlord in and to, or
any part, including without limitation, the Demised Premises,
shall not be subject to liens for any work, labor, services
performed or materials supplied, or claimed to have been
performed or supplied, or any other lien cognizable under Chapter
713, Florida Statutes (collectively herein "Liens"), by Tenant,
or Tenant's contractors, subcontractors (including sub-
contractors), laborers and material suppliers supplying labor
and/or material for the Demised Premises (collectively herein
"Contractors"). Upon the execution of this Lease, Tenant
acknowledges that Landlord, at Landlord's sole option and cost,
may then or thereafter record among the Public Records of Broward
County, Florida the Lease or short form thereof (to which Tenant
shall joint in the execution, at Landlord' s request), or such
other memorandum in form and substance satisfactory to Landlord,
in Landlord's sole discretion, setting forth the contents of this
Paragraph or any other matter for the purpose of insulating the
interest of Landlord from any and all such Contractor's Liens,
without mitigating or otherwise affecting any other provisions of
this Lease. Tenant hereby acknowledges that Landlord shall
further be permitted to do or perform any act necessary or
appropriate, in Landlord's sole discretion, to prevent the filing
of any Lien against the Demised Premises or any part thereof.
In addition to the foregoing and not in lieu thereof, Tenant
shall do all things necessary to prevent the filing of any Liens
against the Demised Premises or the interest of Landlord or the
interest of any mortgagees or holders of any deed of trust
covering the Demised Premises or any ground or underlying
Landlords therein, if any, by reasons of any work, labor,
services, or materials performed or supplied or claimed to have
been performed or supplied to Tenant, or anyone holding the
Demised Premises, or any part thereof, by, through or under
Tenant. If any such Lien shall at any time be filed, Tenant shall
cause the same to be vacated and canceled of record within thirty
(30) days after the date of the filing thereof. If any such Lien
shall be filed notwithstanding the provisions of this Paragraph,
then, in addition to any other right or remedy of Landlord
resulting from Tenant's said default, Landlord may, but shall not
be obligated to, contest such Lien or vacate or release the same
either by paying the amount claimed to be due or by procuring the
release of such Lien by giving security or in such other manner
as may be prescribed by law. Tenant shall repay to Landlord, as
additional rent hereunder on demand, all sums disbursed or
deposited by Landlord pursuant to the foregoing provisions of
this Paragraph, including Landlord's costs and expenses and
attorneys' fees incurred in connection therewith; however,
nothing contained herein shall imply any consent or agreement on
the part of Landlord or mortgagees or holder of deeds of trust or
any ground or underlying Landlords, if any, of the, Demised
Premises to subject their respective estates or interests to
liability under any mechanics' or other lien law, whether or not
the performance or the furnishing of such work, labor, services,
or materials to Tenant or anyone holding the Demised Premises, or
any part thereof, by, through or under Tenant, shall have been
consented to by Landlord and/or any of such parties.
16. Utility Charges. Landlord shall not be liable in the
event of any interruption in the supply of any utilities, unless
such interruption is caused by the gross negligence or
intentional misconduct of Landlord or its agents. In the event
that such interruption is caused by the gross negligence or
intentional misconduct of Landlord or its agents, Landlord's
liability shall be limited to the abatement of rent for the
period of such interruption. Tenant agrees that it will not
install any equipment which will exceed or overload the capacity
of any utility facilities, and if any equipment installed by
Tenant shall require additional utility facilities, the same
shall be installed at Tenant's sole cost and expense in
accordance with plans and specifications to be approved in
writing by Landlord. Tenant shall be solely responsible for and
shall promptly pay all charges for use or consumption for heat,
air conditioning, sewer, water, gas, electricity or any other
utility services, including trash removal.
17. Taxes. If at any time during the term of this Lease,
any additional sales tax or excise on rents or other tax on
Tenant's consideration for occupancy of the Demised Premises,
however described except any ad valorem, estate, inheritance,
real estate, capital stock, capital gains, income (or any new
taxes or amendments to existing taxes imposed in replacement
thereof) or excess profits taxes imposed upon Landlord is levied
or assessed against Landlord by any taxing authority on account
of Landlord's interest in this Lease or the rents and other
charges expressly reserved hereunder, as a substitute in whole or
in part, or in addition to, the Taxes herein before described,
Tenant agrees to pay Landlord, as additional rent hereunder, the
amount of such tax or excise on rents, and other charges, but
only to the extent of the amount thereof which is assessed or
imposed as a direct result of Landlord's ownership of this Lease
or the rentals reserved hereunder. In the event any such tax or
excise on rents and other charges, or other tax, however
described, is levied and assessed directly against Tenant by any
taxing authority on account of Tenant's interest in this Lease or
the leasehold estate hereby created or the rents and other
charges to be paid by Tenant hereunder, then Tenant shall be
responsible therefor and agrees to pay the same before
delinquency; or should any taxing authority require that any such
tax or excise on rents and other charges, or other tax, however
described, for which Tenant is responsible hereunder, be paid by
Tenant, but collected by Landlord, for and on behalf of such
taxing authority and from time to time forwarded by Landlord to
such taxing authority, then the same shall be paid by Tenant to
Landlord at such times as such taxing authority shall require and
be collectible by Landlord and the payment thereof enforced in
the same fashion as provided for the enforcement of payment of
rents and other charges hereunder and for the purpose of
enforcing payment thereof shall be deemed additional rent
hereunder. Tenant at all times shall be responsible for and shall
pay, before delinquency, all taxes assessed by any taxing
authority against any personal property of any kind owned,
installed or used by Tenant in or about the Demised Premises or
the rents and other charges paid by Tenant hereunder.
18. Indemnity.
1. Tenant shall indemnify, defend and protect
Landlord and save Landlord harmless from suits, actions,
damages, liability and expense in connection with loss of
life, bodily or personal injury or property damage arising
from or out of any occurrence in, upon or at or from the
Demised Premises or the occupancy or the use by Tenant of
the Demised Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its
agents, contractors, employees, servants, licensees,
suppliers or concessionaires; and
2. Tenant shall store its property in and shall
occupy the Demised Premises at its own risk, and releases
Landlord, to the full extent permitted by law, from all
claims of every kind resulting in loss of life, personal or
bodily injury or property damage; and
3. Landlord shall not be responsible or liable at any
time for any loss or damage of Tenant's merchandise or
equipment, fixtures or other personal property of Tenant or
to Tenant 's business; and
4. Landlord shall not be responsible or liable to
Tenant or to those claiming by, through or under Tenant for
any loss or damage to either the person or property of
Tenant that may be occasioned by or through the acts of
omissions of persons occupying adjacent, connecting or
adjoining premises unless Landlord shall occupy such
adjacent, connecting or adjoining premises; and
5. Landlord shall not be responsible or liable for
any injury, loss or damage to any person or to any property
of Tenant or other person caused by or resulting from
bursting, breakage, or by or from leakage, steam, running or
the overflow of water or sewage in any part of the Demised
Premises or for any injury or damages caused by or resulting
from acts of God or the elements, or for any injury or
damage caused by or resulting from any defect or negligence
in the occupancy, construction (other than latent
construction defects and only to the extent that Tenant is
not insured against any injuries, loss or damage incurred as
a result thereof), operation or use of any of the Demised
Premises, building, machinery, apparatus or equipment by any
person or by or from the acts of negligence of any occupant
of the Demised Premises.
6. Tenant shall give prompt written notice to
Landlord in case of damage, fire or accidents on the Demised
Premises or in the building thereon, or defects therein or
in any fixtures or equipment.
1.
7. In case Landlord shall, without fault on its part,
be made a party to any litigation commenced by or against
the Tenant, then the Tenant shall protect and hold the
Landlord harmless and shall pay all of said other parties'
costs, expenses and reasonable attorney's fees.
8. No toxic or hazardous waste, substances or
materials or other environmentally detrimental materials,
including, without limitation, asbestos and those toxic or
hazardous waste substances or materials now or hereafter
defined, listed or contemplated under Federal, State or
local environmental or hazardous waste laws (collectively
referred to hereinafter as "Hazardous or Toxic Substances")
shall be used, stored or generated upon the Demised Premises
or in connection with or arising out of the operation of
Tenant's business upon the Demised Premises, except as
permitted by applicable laws. Tenant shall immediately
advise Landlord in writing of the existence, use, storage or
disposition of any Hazardous or Toxic Substances in, upon,
or under the Demised Premises, or the adjoining lands.
Landlord shall have the right, but not the obligation, to
enter the Demised Premises at all times to inspect for the
presence of Hazardous or Toxic Substances. Tenant agrees
that in the event Hazardous or Toxic Substances are found to
exist in, upon or under the Demised Premises, as a result of
the actions or inactions of Tenant, its agents, employees or
invitees, Landlord may, in its sole discretion, require that
Tenant, at Tenant's sole cost and expense, take all steps
necessary to clean up, remove, decontaminate, detoxify,
resolve or otherwise treat the Hazardous or Toxic
Substances.
In addition to the foregoing, in the event Hazardous or
Toxic Substances are found in, upon or under the Demised
Premises, as a result of the actions or inactions of Tenant,
its agents, employees or invitees, Landlord or Landlord's
agents, designees or employees shall have the right, but not
the obligation, and without liability to Tenant for any loss
or damage that may accrue to Tenant's stock or business by
reason thereof, to take such actions as Landlord deems
necessary or advisable, in its sole judgment, to clean up,
remove, decontaminate, detoxify, resolve or otherwise treat,
any such Hazardous or Toxic Substances. All costs and
expenses incurred by Landlord in the exercise of any such
rights shall be payable by Tenant upon demand. Tenant
agrees to indemnify, defend and hold Landlord harmless from
and against any and all losses, damages, claims, orders,
decrees, judgments, expenses and costs (including attorneys'
fees), incurred by or imposed upon Landlord or its mortgagee
in connection with or arising out of (i) Tenant's breach of
the covenants and obligations under this Paragraph 18; or
(ii) Tenant's use, storage, disposition, treatment or
removal of any Hazardous or Toxic Substance in, upon or
under the Demised Premises, or the adjoining lands. In no
event shall the treatment or removal of Hazardous or Toxic
Substances within the Demised Premises, or the adjoining
lands constitute an eviction of Tenant, in whole or in part.
9. Each party shall also pay all costs, expenses and
reasonable attorney's fees that may be incurred or paid by
the other party in enforcing the terms of this Lease.
1.
Notwithstanding anything contained in this Xxxxxxxxx
00, Xxxxxxxx shall not be relieved of any liability for
occurrences resulting from the willful or negligent acts or
omissions of the Landlord or resulting from the Landlord's
failure to comply with its responsibilities under this
Lease.
The provisions of this Paragraph 18 shall survive the
termination of the Lease.
19. Insurance. Tenant agrees to secure and keep in full
force and effect from and after the date Landlord delivers
possession of the Demised Premises to Tenant and throughout the
term of this Lease at Tenant's sole cost and expense (with
coverage to commence at the time Tenant takes possession of the
Demised Premises, or at the commencement of the term of this
Lease, whichever occurs earlier),
1. Comprehensive general liability insurance on an
occurrence basis with minimum single limits of liability and
of bodily injury in an amount of Three Million and No/100
($3,000,000.00) Dollars, and Five Hundred Thousand
($500,000.00) Dollars with respect to damage to property;
and
2. In the event Tenant fails to obtain or maintain
the insurance required hereunder, Landlord may, at its
option, obtain same and any costs incurred by Landlord in
connection therewith shall be deemed additional rent to be
paid by Tenant and payable as such; and
3. If the Lease be canceled for the Tenant's default
at any time while there remains outstanding any obligation
from any insurance company to pay for damage or any part
thereof, then the claim against the insurance company shall,
upon the cancellation of the within Lease, be deemed
immediately to be and become the absolute and unconditional
property of the Landlord.
4. Certificate of Insurance is required naming
Landlord as an additionally insured to assure Landlord that
the Tenant has adequate liability and personal property
coverage. Any increase in cost of insurance premiums to
Landlord as a result of operations of Tenant will be borne
by Tenant, or Tenant may provide for the benefit of Landlord
an insurance policy on the same terms and conditions as the
original provided by Landlord.
20. Insured's Waiver, Notice. Any insurance procured by
Tenant as herein required shall be issued in the name of Tenant
by a reputable and responsible company satisfactory to Landlord
and licensed to do business in the State of Florida, shall name
Landlord as an additionally insured, and shall contain
endorsements that
1. such insurance may not be canceled or amended with
respect to Landlord without thirty (30) days written notice
by registered mail to Landlord by the insurance company;
2. Tenant shall be solely responsible for payment of
Premiums, and Landlord shall not be required to pay any
premiums for such insurance.
3. Any insurance herein required to be procured by
Tenant shall contain an express waiver of any right of
subrogation by the insurance company against Landlord within
ten (10) days of issuance of such policy by the insurance
company. The minimum limits of any insurance coverage
required herein shall not limit Tenant's liability under
this Lease, including, without limitation, Paragraph 18
hereof.
21. Bankruptcy, Assignment, Receivership and Insolvency.
1. Tenant agrees that the continued occupancy of the
Demised Premises in the manner and upon the terms set forth
in this Lease are of a special importance to the commercial
viability of the Demised Premises and, accordingly, agrees
that in the event this Lease is not canceled and terminated
as set forth in subparagraph lB) below following the
occurrence of any of the contingencies therein described,
then Tenant, and the trustee in bankruptcy or other
representative of Tenant, or, in the event of an assignment,
Tenant's assignee, shall, prior to the assumption of this
Lease by such representative or trustee or assignee, provide
adequate assurance to Landlord: (i) of the source of rents
and other consideration payable under this Lease; (ii) that
assumption or assignment of this Lease will not breach
substantially any provision in any other lease, financing
agreement, or master agreement relating to the Demised
Premises; (iii) of the continued use of the Demised Premises
in accordance with the Permitted Use only; (iv) that the
quality of goods to be sold in the Demised Premises will not
decline; (v) that Tenant's suppliers of merchandise or goods
for sale in the Demised Premises are willing to continue to
furnish such merchandise and goods as are of the same
quality and caliber as theretofore sold in the Demised
Premises; (vi) of the source of funds necessary to pay for
Tenant's merchandise and goods to be sold in the Demised
Premises, all on a current basis and (vii) of such other
matters as Landlord may reasonably require at the time of
such assumption or assignment. Tenant agrees that the
furnishing of assurances in accordance with the foregoing or
as may be directed by a court of competent jurisdiction
shall not be deemed to waive any of the covenants or
obligations of Tenant set forth in this Lease. In the event
that any person assuming this Lease or taking the same by
assignment shall desire to make alterations to the Demised
Premises, Landlord may further require adequate assurance,
by lien and completion bond, cash deposit or such other
means as Landlord may approve, of the source of payment for
the estimated cost of any work to be performed in connection
therewith, and Landlord may require the delivery prior to
the commencement thereof of waivers of lien from all
contractors, subcontractors, laborers or material suppliers
engaged to perform such alterations or to supply materials
therefor. Notwithstanding the foregoing, such alterations
shall be subject in all respects to the rights and
obligations of Landlord and Tenant hereunder relating to
such alterations.
2. If at any time after the Date of Lease (whether
prior to the commencement of or during the term of this
Lease) (i) any proceedings in bankruptcy, insolvency or
reorganization shall be instituted against Tenant pursuant
to any Federal or State law now or hereafter enacted, or any
receiver or trustee shall be appointed of all or any portion
of Tenant's business or property, or any execution or
attachment shall issue against Tenant or any of Tenant's
business or property or against the leasehold estate created
hereby, and any of such proceedings, process or appointment
be not discharged and dismissed within thirty (30) days from
the date of such filing, appointment or issuance; or (ii)
Tenant shall be adjudged as bankrupt or insolvent, or Tenant
shall make an assignment for the benefit of creditors, or
Tenant shall file a voluntary petition in bankruptcy or
petitions for (or enters into) an arrangement for
reorganization, composition or any other arrangement with
Tenant's creditors under any Federal or State law now or
hereafter enacted, or this Lease or the estate of Tenant
herein shall pass to or devolve upon, by operation of law or
otherwise, anyone other than Tenant (except as herein
provided), the occurrence of any one of such contingencies
shall be deemed to constitute and shall be construed as a
repudiation by Tenant of Tenant's obligations hereunder and
shall cause this Lease ipso facto to be canceled and
terminated effective as soon as permitted by then applicable
law without thereby releasing Tenant; and upon such
termination Landlord shall have the immediate right to re-
enter the Demised Premises and to remove all persons and
property therefrom; this Lease shall not be treated as an
asset of Tenant's estate, and neither Tenant nor anyone
claiming by, through or under Tenant by virtue of any law or
any order of any court shall be entitled to the possession
of the Demised Premises or to remain in the possession
thereof. Upon the termination of this Lease, as aforesaid,
Landlord shall have the right to retain as partial damages,
and not as a penalty, any prepaid rents and any Security
Deposit, and Landlord shall also be entitled to exercise
such rights and remedies to recover from Tenant as damages
such amounts as are specified in Paragraph 22 hereof, unless
any statute or rule of law governing the proceedings in
which such damages are to be proved shall lawfully limit the
amount of such claims capable of being so proved, in which
case Landlord shall be entitled to recover, as and for
liquidated damages, the maximum amount which may be allowed
under any such statute or rule of law.
22. Default.
1. If this Lease be assigned or the Demised Premises
be sublet, either voluntarily or by operation of law, except
as herein provided, or if Tenant shall fail (i) to pay,
within five (5) days, when due, any rental or other sum
payable hereunder; or (ii) to keep, observe or perform any
of the other terms, covenants and conditions herein to be
kept, observed and performed by Tenant for more than fifteen
(15) days after written notice shall have been sent to
Tenant specifying the nature of such default (or such
greater length of time as may be reasonably required to cure
such default provided that within such fifteen (15) day
period Tenant has commenced and thereafter diligently
continues steps to cure the default), then and in any one or
more of such events are not timely cured (herein sometimes
referred to as an "Event of Default"), Landlord shall have
the immediate right to re-enter the Demised Premises, either
by summary proceedings, by force or otherwise and to
dispossess Tenant and all other occupants therefrom and
remove and dispose of all property therein or, at Landlord's
election, to store such property in a public warehouse or
elsewhere at the cost and for the account of Tenant, all
without service of any further notice of intention to re-
enter and with or without resort to legal process (which
Tenant hereby expressly waives) and without Landlord being
deemed guilty of trespass or becoming liable for any loss or
damage which may be occasioned thereby. Upon the occurrence
of any such Event of Default, Landlord shall also have the
right, at its option, in addition to and not in limitation
of any other right or remedy, to terminate this Lease by
giving Tenant a written three (3) days' notice of
cancellation and upon the expiration of said three (3) days,
this Lease and the term hereof shall end and expire as fully
and completely as if the date of expiration of such three
(3) day period were the date herein definitely fixed for the
end and expiration of this Lease and the term hereof and
thereupon, unless Landlord shall have theretofore elected to
re-enter the Demised Premises, Landlord shall have the
immediate right of re-entry, in the manner aforesaid, and
Tenant and all other occupants shall quit and surrender the
Demised Premises to Landlord, but Tenant shall remain liable
as hereinafter provided; however, that if Tenant shall
default:
(1) In the timely payment of any rental or other
sum payable hereunder and any such default shall continue or be
repeated for three (3) consecutive months, or for a total of five
(5) months in any period of twelve (12) months, or
(2) In the performance of any other covenants of
this Lease more than six (6) times, in the aggregate, in any
period of twelve (12) months, then, notwithstanding that such
defaults shall have been cured within the period after notice as
above provided, any further default shall be deemed to be
deliberate, and Landlord thereafter may serve said written three
(3) day notice of cancellation without affording to Tenant an
opportunity to cure such further default, as long as Landlord
does so in accordance with Florida Statutes.
2. If by reason of the occurrence of any such Event
of Default, the term of this Lease shall end before the date
therefor originally fixed herein, or Landlord shall re-enter
the Demised Premises, or Tenant shall be ejected,
dispossessed, or removed therefrom by summary proceedings or
in any other manner, Landlord at any time thereafter may, in
Landlord's sole discretion, relet the Demised Premises, or
any part or parts thereof, either in the name of Landlord or
as agent for Tenant, for a term or terms which, at
Landlord's option, may be less than or exceed the period of
the remainder of the term hereof or which otherwise would
have constituted the balance of the term of this Lease and
grant market level concessions or free rent. Landlord shall
receive the rents from such reletting and shall apply the
same, first, to the payment of any indebtedness other than
rent due hereunder from Tenant to Landlord; second to the
payment of such reasonable expenses as Landlord may have
incurred in connection with re-entering, ejecting, removing,
dispossessing, reletting, altering, repairing, redecorating,
subdividing, or otherwise preparing the Demised Premises for
reletting, including reasonable brokerage and attorney's
fees; and the residue, if any, Landlord shall apply to the
fulfillment of the terms, covenants and conditions of Tenant
hereunder, and Tenant hereby waives all claims to the
surplus, if any. Tenant shall be and hereby agrees to be
liable for and to pay Landlord any deficiency between the
rent, additional rents and other charges reserved herein and
the net avails, as aforesaid, of reletting, if any, for each
month of the period which otherwise would have constituted
the balance of the term of this Lease. Tenant hereby agrees
to pay such deficiency on an accelerated basis or at
Landlord's sole option, in monthly installments on the rent
days specified in this Lease, and any suit or proceeding
brought to collect the deficiency for any month, either
during the term of this Lease or after any termination
thereof, shall not prejudice or preclude in any way the
rights of Landlord to collect the deficiency for any
subsequent month by a similar suit or proceeding. Landlord
shall in no event be liable in any way whatsoever for the
failure to relet the Demised Premises or, in the event of
such reletting, for failure to collect the rents reserved
thereunder. Landlord is hereby authorized and empowered to
make such repairs, alterations, decorations, subdivision or
other preparations for the reletting of the Demised premises
as Landlord shall deem fit, advisable and necessary, without
in any way releasing Tenant from any liability hereunder, as
aforesaid. Landlord shall have a valid and subsisting lien
for the payment of all rentals, charges and other sums to be
paid by Tenant and reserved hereunder (including all costs
and expenses incurred by Landlord in recovering possession
of the Demised Premises and the reletting thereof as
provided under this Paragraph, which shall be deemed to be
rent) upon Tenant's goods, merchandise, inventory, accounts,
wares, equipment, signs, fixtures, furniture and other
personal property situated in the Demised Premises ("Lien
Property"), and such property shall not be removed therefrom
without the prior written consent of Landlord until the
arrearages in rent as well as any and all other sums of
money then due to Landlord hereunder shall have first been
paid and discharged. Tenant agrees and acknowledges that
this Lease also serves as a security agreement under Article
9 (F.S. 679 et seq.) of the Uniform Commercial Code to
impose a lien upon the Lien Property to secure the payment
of all rentals charges and other sums to be paid by Tenant
and reserved hereunder and Tenant agrees to execute,
acknowledge and deliver to Landlord such financing
statements and other instruments as Landlord may request in
order to commemorate the foregoing within ten (10) days
after Landlord's request therefor. Tenant empowers Landlord
as Tenant's attorney-in-fact, coupled with an interest,
irrevocably and with power of substitution to execute and
file, to the extent permitted by law from time to time in
effect during the term of this lease, any financing
statement, any amendment thereto or any continuation
statement which Landlord may deem necessary to perfect,
protect or enforce the foregoing provisions. Landlord agrees
to subordinate its Landlords lien to the lien of a
commercial third party lender within ten (10) days of
written request from Tenant.
Upon the occurrence of an Event of Default by Tenant,
Landlord may, in addition to any other remedies provided
herein or by law, enter upon the Demised Premises and take
possession of any and all goods, merchandise, inventory
wares, equipment, signs, fixtures, furniture and other
personal property of Tenant situated in the Demised Premises
without liability for trespass or conversion, and sell the
same with or without notice at public or private sale, with
or without having such property at the sale, at which
Landlord or its assigns may purchase, and apply proceeds
thereof, less any and all reasonable expenses connected with
the taking of possession and the sale of the property, as a
credit against any sums due by Tenant to Landlord; Tenant
agrees to pay any deficiency forthwith, after demand.
Landlord, at its option, may foreclose said lien in the
manner provided by law. The lien herein granted to Landlord
shall be in addition to any Landlord's lien that may now or
at any time hereafter be provided by law.
3. No such re-entry or taking possession of the
Demised Premises by Landlord shall be construed as an
election on its part to terminate this Lease unless a
written notice of such intention be given to Tenant or
unless the termination thereof shall result as a matter of
law or be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this
Lease for such previous breach or default
4. In the event this Lease is terminated pursuant to
the foregoing provisions of this Paragraph or terminates
pursuant to the provisions of this paragraph, Landlord may
recover from Tenant all damages it may sustain by reason of
Tenant's default, including the reasonable cost of
recovering the Demised Premises and reasonable attorney's
fees and upon so electing and in lieu of the damages that
may be recoverable under subdivision (B) above, Landlord
shall be entitled to recover from Tenant, as and for
Landlord's damages, an amount equal to the difference
between the Minimum Rent, additional rents (including taxes
and insurance) and other charges reserved hereunder for the
period which otherwise would have constituted the balance of
the term of this Lease and the then present rental value of
the Demised Premises for such period, both discounted at the
rate of eight (8%) percent per annum to present worth, all
of which shall immediately be due and payable by Tenant to
Landlord. In determining the rental value of the Demised
Premises the rental realized by any reletting, if such
reletting be accomplished by Landlord within a reasonable
time after the termination of this Lease, shall be deemed
prima facie to be the rental value, but if Landlord shall
not undertake to relet or having undertaken to relet, has
not accomplished reletting, then it will be conclusively
presumed that the rents reserved under this Lease represent
the rental value of the Demised Premises for the purposes
hereof (in which event Landlord may recover from the Tenant,
the full total of all rents and additional charges due
hereunder, discounted to present value as herein before
provided). Landlord shall be obliged, however to account to
Tenant for the Minimum Rent and additional rents received
from persons using or occupying the Demised Premises during
the period representing that which would have constituted
the balance of the term of this Lease, but only at the end
of said period and only if Tenant shall have paid to
Landlord its damages as provided herein, and, only to the
extent of sums recovered from Tenant as Landlord's damage,
the Tenant waiving any claim to any surplus. Nothing herein
contained, however, shall limit or prejudice the right of
Landlord to prove and obtain as damages by reason of such
termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or
less than the amounts referred to in this Paragraph.
5. During the continuance of any uncured Event of
Default, Landlord shall have the right to injunctive relief
as if no other remedies were provided herein to such breach.
6. The rights and remedies herein reserved by or
granted to Landlord are distinct, separate and cumulative,
and the exercise of any one of them shall not be deemed to
preclude, waive or prejudice Landlord's right to exercise
any or all others.
7. If Tenant shall suffer any Event of Default
hereunder prior to the date fixed as the commencement of any
renewal or extension of this Lease, if any, whether by a
renewal option herein contained or by separate agreement,
Landlord may cancel such option or agreement for renewal or
extension of this Lease, upon two (2) days written notice to
Tenant, provided that such notice is given prior to Tenant
curing such Event of Default.
8. In the event that Landlord should bring suit for
the possession of the Demised Premises, for the recovery of
any sum due hereunder, or because of the breach of any
covenant of this Lease, or for any relief against Tenant,
declaratory or otherwise, or should Tenant bring any suit
for any relief against Landlord, declaratory or otherwise,
arising out of this Lease, the prevailing party shall
recover from the other party, costs, expenses and reasonable
attorney's fees that the prevailing party may have incurred
in connection therewith at all levels of proceedings.
9. Tenant agrees that the venue and/or jurisdiction
for any legal actions brought by Landlord pursuant to this
Paragraph shall be in Broward County, Florida.
10. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY
AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT CREATED HEREBY, THE TENANT'S USE OR
OCCUPANCY OF THE DEMISED PREMISES, AND/OR ANY CLAIM FOR
INJURY OR DAMAGE.
11. In the event Landlord commences any action or
proceeding for non-payment of rent, additional rents or
other charges due hereunder, the Tenant shall pay into the
court registry the amount alleged in the complaint as
unpaid, or if such amount is contested, such amount as is
determined by the court, and any rent accruing during the
pendency of the action, when due. The Tenant must pay the
amount alleged in the complaint into the court registry on
or before the date on which his answer to the claim is due.
If the Landlord is in danger of loss of the Demised Premises
or other hardship resulting from the loss of rental income
from the Demised Premises, the Landlord may apply to the
court for disbursement of all or part of the funds so held
in the court registry. Failure of the Tenant to pay the rent
into the court registry pursuant to this section shall be
deemed an absolute waiver of the Tenant's defenses. In such
case, the Landlord is entitled to an immediate default
without further notice or hearing thereon.
23. Destruction. If the Demised Premises shall be damaged,
in whole or in part, by fire or other casualty insured under
Landlord's insurance policies, then upon Landlord's receipt of
the insurance proceeds, Landlord shall, if possible, render said
Demised Premises tenantable by repairs within one hundred eighty
(180) days from the date of the Damage. If said Demised Premises
are not or cannot be rendered tenantable within said time, it
shall be optional with either party hereto to cancel this Lease,
and in the event of such cancellation, or not, the rent shall be
paid only to the date of such fire or casualty. The cancellation
herein mentioned shall be evidenced in writing. In the event the
Lease is not canceled, Tenant shall when possible repair, restore
or replace Tenant's trade fixtures, personal property,
decorations, signs and contents in or upon the Demised Premises
in a manner and to at least a condition equal to that existing
prior to their damage or destruction.
Tenant shall not be entitled to and hereby waives all claims
against Landlord for any compensation or damage for loss of use
of the whole or any part of the Demised Premises and/or for any
inconvenience or annoyance occasioned by any such damage,
destruction, repair or restoration.
24. Condemnation.
1. Total: If the whole of the Demised Premises or
such part hereof as will render the remainder untenantable
shall be acquired or taken by eminent domain for any public
or quasi public use or purpose or by private purchase in
lieu thereof, then the Lease and the term thereof shall
automatically cease and terminate as of the date of title
vesting in such proceeding.
2. Partial: (i) If any part of the Demised Premises
shall be taken and such partial taking shall render that
portion not so taken unsuitable for the purposes for which
the Demised Premises were leased, or (ii) if more than one-
fourth (1/4th) of the existing parking spaces are so taken
and Landlord cannot re-assign the same number of alternate
spaces to Tenant, then Landlord and Tenant shall each have
the right to terminate the Lease by written notice given to
the other within sixty (60) days after the date of title
vesting in such proceeding. If any part of the Demised
Premises shall be so taken and the Lease shall not be
terminated, as aforesaid, then the Lease and all of the
terms and provisions thereof shall continue in full force
and effect except that the Minimum Rent shall be thereafter
reduced in the same proportion that the remaining leasable
area of the Building upon the Demised Premises bears to
original leasable area of the Building.
3. As used herein, the amount received by Landlord
shall mean that portion of the award in condemnation
received by Landlord from the condemning authority which is
free and clear of all prior claims or collections by the
holders of any mortgages or deeds of trust or any ground or
underlying Landlords
4. If the Lease is terminated as provided in this
paragraph, all rents shall be paid by Tenant up to the date
that possession is so taken by public authority, and
Landlord shall make an equitable refund of any rents paid by
Tenant in advance and not yet earned.
5. All damages or compensation awarded or paid for
any such taking, whether for the whole or a part of the
Demised Premises or any part of the buildings or
improvements thereon, shall belong to and be the property of
Landlord without any participation by Tenant, whether such
damages or compensation shall be awarded or paid for
diminution in value of the fee or in the leasehold estate
created hereby, and Tenant hereby expressly waives and
relinquishes all claims to such award or compensation or any
part thereof and of the right to participate in any such
condemnation proceedings against the Landlord; provided,
however, that nothing herein contained shall be construed to
preclude Tenant from prosecuting any claim directly against
the condemning authority, but not against Landlord, for the
value of or damages to and/or for the cost of removal of
Tenant's movable trade fixtures and other personal property
which under the terms of the Lease would remain Tenant's
property upon the expiration of the term of this Lease, as
may be recoverable by Tenant in Tenant's own right, or for
other such claims separately cognizable to Tenant, provided
further that no such claim shall diminish or otherwise
adversely affect Landlord's award. Each party agrees to
execute and deliver to the other all instruments that may be
required to effectuate the provisions of this Paragraph.
25. Access to Premises. Landlord shall have the right to
enter the Demised Premises during normal business hours to
inspect or to exhibit the same to prospective purchasers,
mortgagees, Tenants and tenants and to make such repairs,
additions, alterations or Improvements Landlord may deem
reasonably necessary. Landlord shall be allowed to take all
material into and upon said Demised Premises that may be required
theretofore without the same constituting an eviction of Tenant
in whole or in part, and the rents reserved shall not xxxxx while
said work is in progress by reason of loss or interruption of
Tenant's business or otherwise; Tenant shall have no claim for
damages. If Tenant shall not be personally present to permit an
entry into said premises when for any reason an entry therein
shall be permissible, Landlord may enter the same by a master key
or by the use of force without rendering Landlord liable therefor
and without in any manner affecting the obligations of this
Lease. The provisions of this paragraph shall not be construed
to impose upon Landlord any obligation whatsoever for the
maintenance or repair of the building or any part thereof.
During the six (6) months prior to the expiration of this Lease
or any renewal term, Landlord may place upon the Demised Premises
signs indicating that -- the Demised Premises are available for
rent or sale, which Tenant shall permit to remain thereon, except
as otherwise provided for in this Lease.
26. Subordination. Subject to this Section 26, this Lease
is subject and subordinate to each and every mortgage, deed of
trust and/or ground lease which may now or hereafter affect the
Demised Premises (collectively referred to as a "Mortgage") and
to all renewals, extensions, supplements, amendments,
modifications, consolidations and replacements thereof or
thereto, substitutions therefor, and advances made under a
Mortgage. Tenant agrees to execute within fifteen (15) days
written request from Landlord a commercially reasonable
subordination, in favor of the holder of any such mortgage or
deed of trust (hereinafter a "Mortgagee") or the landlord
pursuant to any ground lease, provided said subordination
provides that said Mortgagee (as hereinafter defined) will agree
not to disturb Tenant's right to possession of the Demised
Premises, so long as Tenant is not in default (beyond any
applicable cure or grace period) under the terms of this Lease.
If Tenant shall fail to execute such subordination within said
fifteen (15) day period, the subordination shall be self-
operative upon delivery by the Mortgagee to the Tenant of a
statement whereby the Mortgagee agrees not to disturb Tenant's
right to possession of the Demised Premises, so long as Tenant is
not in default (beyond applicable cure or grace period)
hereunder.
If at any time prior to the expiration of the term hereof,
the Demised Premises are sold or a mortgagee receives possession
or control of the Landlord's interest hereunder, then Tenant
agrees, at the election and upon demand of Landlord, or any such
owner or mortgagee in possession, to attorn, from time to time,
to any such owner, Landlord or mortgagee, upon the then executory
terms and conditions of this Lease, for the remainder of the term
originally demised in this Lease, provided that such owner,
Landlord or mortgagee, as the case may be, or receiver caused to
be appointed by any of the foregoing, shall then be entitled to
possession of the Demised Premises. The provisions of this
subsection shall inure to the benefit of Landlord or a mortgagee,
and shall be self-operative upon any such demand, and no further
instrument shall be required to give effect to said provisions.
Tenant, however, upon demand of Landlord or a mortgagee, agrees
to execute, from time to time, instruments in confirmation of the
foregoing provisions of this subsection, satisfactory to Landlord
or mortgagee, acknowledging such attornment and setting forth the
terms and conditions of its tenancy. Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact to
execute any such certificates for and on behalf of Tenant.
Nothing contained in this subsection shall be construed to impair
any right otherwise exercisable by Landlord or a mortgagee.
Anything to the contrary notwithstanding, in the event that
Tenant and a Mortgage enter into a Subordination Non-Disturbance
and Attornment Agreement ("SNDA"), the terms of said SNDA shall
control over the terms of this section, with regards to the
rights and obligations of Tenant and said Mortgagee.
27. Quiet Enjoyment. Tenant, upon paying the rents and
performing all of the terms on its part to be performed, shall
peaceably and quietly enjoy the Demised Premises subject,
nevertheless, to the terms of this Lease and to any mortgage or
agreements to which this Lease is subordinated.
28. End of Term. At the expiration of this Lease, Tenant
shall surrender the Demised Premises broom clean and in the same
condition as it was in upon the completion of the Landlord's
Work, reasonable wear and tear and renovations as herein
contemplated excepted, and shall deliver all keys and
combinations to locks, safes and vaults to Landlord. Within
thirty (30) days of surrendering said premises, Tenant shall
remove all its personal property and equipment, and (except as
previously agreed to in writing by Landlord and Tenant) all trade
fixtures, alterations, additions and decorations, and shall
repair any damage caused thereby. Tenant's obligations to perform
this provision shall survive the end of the term of this Lease.
If Tenant fails to remove its property upon the expiration of
this Lease, the said property shall be deemed abandoned and shall
become the property of Landlord, and if Landlord elects to remove
same, Tenant shall be liable for all costs incurred in connection
therewith. If the Demised Premises be not surrendered as and when
aforesaid, Tenant shall indemnify Landlord against all loss or
liability resulting from the delay by Tenant in so surrendering
the same, including, without limitation, any claims made by any
succeeding occupant founded on such delay. Tenant's obligations
under this Paragraph shall survive the expiration or sooner
termination of the term of this lease
29. Holding Over. Any holding over after the expiration of
this term or any renewal term shall be construed to be a tenancy
from month to month at the rents herein specified (prorated on a
monthly basis) and shall otherwise be on terms herein specified
so far as applicable. In the event such holding over is without
the written consent of Landlord, Tenant shall be obligated to pay
double the monthly rent and charges set forth herein.
30. No Waiver. Failure of Landlord to insist upon the
strict performance of any provision or to exercise any option or
any rules and regulations shall not be construed as a waiver for
the future of any such provision, rule or option. The receipt by
Landlord of rent with knowledge of the breach of or default under
any provisions of this Lease shall not be deemed a waiver of such
breach or default. No provision of this Lease shall be deemed to
have been waived by Landlord unless such waiver is in writing
signed by Landlord. No payment by Tenant or receipt by Landlord
of a lesser amount than the monthly rent shall be deemed to be
other than on account of the earliest rent then unpaid nor shall
any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of
such rent or pursue any other remedy provided in this Lease or
under the laws of the State of Florida.
31. Relationship of Parties. Nothing contained in this
Lease shall be deemed to constitute or be construed to create the
relationship of principal and agent, partnership, joint venturers
or any other relationship between the parties hereto, other than
the relationship of Landlord and Tenant.
32. Notices. Any notice, demand, request or other
instrument which may be or are required to be given under this
Lease shall be delivered in person or sent by United States
Certified or Registered Mail, postage prepaid, or by overnight
courier such as Federal Express, and shall be addressed:
1. If to Landlord at the address herein above given;
and
2. if to Tenant, at the address set forth in 1 (c).
Either party may designate such other address as shall be
given by written notice. Any notice mailed in accordance herewith
shall be deemed received three (3) business days from the date of
mailing.
33. Recording. Tenant shall not record this Lease or a
memorandum thereof without the prior written consent of Landlord.
34. Partial Invalidity. If any provision of this Lease or
application thereof to any person or circumstance to any extent
be invalid, the remainder of this Lease or the application of
such provision to persons or circumstances other than those as to
which it is held invalid shall not be affected thereby and each
provision of this Lease shall be valid and enforced to the
fullest extent permitted by law.
35. Brokerage. Landlord and Tenant each represent and
warrant to the other that neither has had any dealings with any
person, firm, broker or finder in connection with the negotiation
of this Lease other than GODART PROPERTIES (the "Broker"), and no
other broker or person, firm or entity is entitled to any
commission or finder's fee in connection with this transaction
(except for the Broker). Landlord and Tenant do each hereby
indemnify, defend, protect and hold the other harmless from and
against any costs, expenses or liability for compensation,
commission or charges which may be claimed by any broker, finder
or other similar party by reason of any actions of the
indemnifying party. Landlord agrees to pay to the Broker the
commission for its services in accordance with a separate
agreement between the Landlord and the Broker.
36. Provisions Binding, Etc. Except as otherwise expressly
provided, all provisions herein shall be binding upon and shall
inure to the benefit of the parties, their legal representatives,
successors and assigns. Each provision to be performed by Tenant
shall be construed to be both a covenant and a condition, and if
there shall be more than one Tenant, they shall all be bound
jointly and severally, by these provisions. In the event of any
sale of the Demised Premises or this Lease, Landlord shall be
entirely relieved of all obligations hereunder, provided such
transferee assumes, in writing, all obligations of the Lease
hereunder.
37. Entire Agreement, Etc. This Lease and the Addenda,
Exhibits or Riders (if attached) set forth the entire agreement
between the parties; any prior conversations or writings are
merged herein and extinguished. No subsequent amendment to this
Lease shall be binding upon Landlord or Tenant unless reduced to
writing and signed by both parties. Submission of this Lease for
examination does not constitute an option for the Demised
Premises and becomes effective as a lease only upon execution and
delivery thereof by both Landlord and Tenant. If any provision
contained in an Addendum is inconsistent with the printed
provision of this Lease, the provision contained in said Addendum
shall supersede said printed provision. The captions, numbers and
index appearing herein are inserted only as a matter of
convenience and are not intended to define, limit, construe or
describe the scope or intent of any paragraph, nor in any way
affect this Lease.
38. Definitions. The term "Landlord" as used in this Lease
shall mean only the owner or the mortgagee in possession for the
time being of the land and building (or the owner of a lease of
the building) of which the Demised Premises forms a part, so that
in the event of any sale or sales of said land and building, or
of the underlying lease or ground lease thereof, or in the event
of a lease of said building, Landlord shall be and hereby is
entirely freed and relieved of all covenants and obligations on
its part to be performed hereunder, and it shall be deemed and
construed without further agreement between the parties or their
successors in interest or between the parties and the purchaser
at any such sale, or the said Tenant of the building, that the
purchaser or the Tenant of the building has assumed and agreed to
carry out any and all covenants and obligations of Landlord
hereunder.
39. Estoppel Certificate by Tenant/Financial Statements.
From time to time, within ten (10) days next following Landlord's
request, Tenant shall deliver to Landlord a written statement
(prepared by Landlord at Landlord's expense) executed and
acknowledged by Tenant in form satisfactory to Landlord (a)
stating that this Lease is then in full force and effect and has
not been modified (or if modified, setting forth all
modifications), (b) setting forth the date to which the Minimum
Rent, additional rent and other charges hereunder have been paid,
(c) stating whether or not, to the best knowledge of Tenant,
Landlord is in default under this Lease, and, if Landlord is in
default, setting forth the specific nature of all such defaults,
(d) certifying that Tenant has accepted possession of the Demised
Premises, and (e) as to any other reasonable matters requested by
Landlord.
40. Guaranty. This paragraph has been omitted in its
entirety
41. Limitation of Liability. Tenant shall look solely to
Landlord's interest in the Demised Premises for the satisfaction
of any judgment or decree requiring the payment of money by
Landlord, based upon any default under this Lease, and no other
property or asset of Landlord shall be subject to levy, execution
or other enforcement procedure for the satisfaction of such
judgment or decree.
42. Captions and Headings. Captions and Article headings
contained in this Lease are for convenience and reference only
and in no way define, describe, extend or limit the scope or
intent of this Lease nor the intent of any provision hereof.
43. Counterparts. This Lease may be executed in one or
more counterparts, each of which shall be deemed to be an
original but all of which shall constitute one and the same
agreement.
44. Gender. All terms and words used in this Lease,
regardless of the number and gender in which used, shall be
deemed to include any other gender or number as the context or
the use thereof may require.
45. Interpretation. This Lease shall not be construed more
strictly against one party than against the other merely by
virtue of the fact that it may have been prepared by counsel for
one of the parties, it being recognized that both Landlord and
Tenant have contributed substantially and materially to the
preparation of this Lease. Wherever used in this Lease, "any"
means "any and all"; "include" and "including" each are without
limitation; "indemnify" means that the indemnitor will defend,
indemnify and hold the indemnitee harmless against any claims,
demands, losses or liabilities asserted against or incurred by,
the indemnitee to any third party because of the subject matter
of the indemnity; "may not" other negative forms of the verb
"may" each are prohibitory; and "will", "must", "should" each are
mandatory. Unless this Lease expressly or necessarily requires
otherwise (ii) any time period measured in "days" means
consecutive calendar days, except that the expiration of any time
period measured in days that expires on a Saturday, Sunday or
legal holiday automatically will be extended to the next business
day; (ii) any action is at the sole expense of the party required
to take it; (iii) the scope of any indemnity includes any costs
and expenses, including reasonable attorneys' fees, incurred in
defending any indemnified claim, or in enforcing the indemnity,
or both.
46. Time of the Essence. Time is of the essence of this
Agreement.
47. Corporate Tenant. If Tenant is or will be a
corporation, the persons executing this Lease on behalf of Tenant
hereby covenant, represent and warrant that Tenant is a duly
incorporated or a duly qualified (if a foreign corporation)
corporation and authorized to do business in the State of
Florida; and that the person or persons executing this Lease on
behalf of Tenant is an officer or are officers of such Tenant,
and that he or they as such officers were duly authorized to sign
and execute this Lease. Upon request of Landlord to Tenant,
Tenant shall deliver to Landlord documentation satisfactory to
Landlord evidencing Tenant's compliance with the provisions of
this Paragraph.
48. Radon Gas. Radon is a naturally occurring radioactive
gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed
to it over 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 public health unit.
49. Automatic Renewal Term(s). Provided there is not then
an uncured Event of Default at the time the renewal term is
scheduled to commence, Tenant is hereby granted two (2) five-year
options to renew this Lease (the "Option Lease Terms") under the
same terms and conditions as the initial five-year term with the
Minimum Rent due Landlord for the Demised Premises for the
initial lease year of the initial Option Lease Term equal to Two
Hundred Sixteen Thousand Ninety-Four Dollars and Forty-Four Cents
($216,094.44) per annum, consisting of $176,242.44 as "Base Rent"
and $39,852.00 as "Expenses," payable in advance, at a rate of
Eighteen Thousand Seven Dollars and Eighty-Seven Cents
($18,007.87) per month, plus any increased Expenses pursuant to
Paragraph 1 (h)(3), plus any applicable sales and/or rent taxes
thereon; the Base Rent due Landlord shall increase three percent
(3%) annually as per Xxxxxxxxx 0, Xxxxxxx x, (0) above. Tenant
shall give Landlord written notice of Tenant's intention not to
exercise these options at least one hundred eighty (180) days
prior to the end of the initial term or the first Option Lease
Term, as the case may be (Certified mail, return receipt
requested). If such notice is not received by Landlord within
said time period, the Lease shall be automatically renewed as is
stated above, at Landlord's option.
50. Refuse Prevention. Tenant will not place or maintain
any garbage, trash, rubbish, debris, or any other refuse in any
vestibule or entry of the Demised Premises; on the pathways or
corridors adjacent thereto; or elsewhere on the exterior of the
Demised Premises, which shall include, without limitation,
sidewalks, alleyways and courtyards. Tenant also will not cause
or permit odors of any kind to emanate from the Premises.
51. Delayed Occupancy. If Landlord cannot deliver
possession of the Demised Premises to Tenant by the Lease
Commencement Date, the Lease shall not be void or voidable, nor
shall Landlord be liable to Tenant for any loss or damage
resulting therefrom; in that event the term of this Lease shall
be amended to commence on the date when Landlord can deliver
possession, and all corresponding dates of the Lease shall be
adjusted accordingly in conjunction with paragraph 1 (g) above.
If as a result of such postponement, the term would begin on
other than the first day of a month, the commencement date shall
be the first day of that month; however, the Tenant shall pay
rent pro-rated for such partial month's occupancy in conjunction
with paragraph 4. above. Anything to the contrary
notwithstanding, in the event that Landlord has not delivered
possession of the Demised Premises prior to May 15, 1997,
Landlord agrees to make available to Tenant, under the same terms
and conditions set forth herein, thirteen thousand (13,000)
square feet of warehouse space within the Port 95-3 building
which is owned by an affiliate of Landlord. Upon the commencement
of the Lease Term, all of Tenant's rights in and to the premises
in the Port 95-3 building shall terminate. In the event that
Landlord has not obtained a Certificate of Occupancy for the
warehouse portion of the Demised Premises with ninety (90) days
from the date of this Lease, (the "Anticipated Delivery Date")
Landlord shall give the Tenant a credit against Rent equal to
$85.93 for every day beyond the Anticipated Delivery Date until a
Certificate of Occupancy for the warehouse portion of the Demised
Premises has been obtained. In the event that Landlord has not
obtained a Certificate of Occupancy for the warehouse portion of
the Demised Premises prior to one hundred eighty (180) days from
the date of this Lease (the "Termination Date"), Tenant shall
have the option of either (i) terminating the Lease or (ii)
extending the Termination Date for an additional forty five (45)
days. Tenant shall notify Landlord in writing of its decision
within five (5) business days of the Termination Date. If Tenant
fails to notify Landlord of its decision within five (5) days of
the Termination Date, then Landlord shall have the option of
terminating the Lease or extending the Termination Date.
Landlord will obtain a Certificate of Occupancy for the office
portion of the Demised Premises and will deliver occupancy of
said portion to the Tenant within thirty (30) days after
commencement of the Lease Term (the "Office Completion Date"). In
the event the office portion is not completed by the Office
Completion Date, Tenant shall be entitled to a credit against
Rent of $25.00 for every day beyond the Office Completion Date
until delivery of possession of the office portion to the Tenant.
52. No Presumption Against Drafter. Landlord and Tenant
understand, agree, and acknowledge that i) this Lease has been
freely negotiated by both parties; and ii) that, in any
controversy, dispute, or contest over the meaning,
interpretation, validity, or enforceability of this Lease or any
of its terms or conditions, there shall be no interference,
presumption, or conclusion drawn whatsoever against either party
by virtue of that party having drafted this Lease or any portion
thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
instrument for the purpose herein expressed, this 26th day of
March, 1997.
Signed, sealed and delivered in PORT 95-4, LTD., a Florida
limited partnership
the presence of:
As to Landlord: By: KELSY PORT 95-4, LTD., a
Florida limited
partnership, General
Partner
_________________________________
By: KELSY PORT 95-4, INC.,
a Florida corporation,
General Partner
________________________________
By: /s/ Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxxx,
Xx.,
President
As to Tenant: INTERNATIONAL AIRLINE SUPPORT
GROUP, INC., a Delaware
corporation
________________________________
By: /s/ X.X. Xxxx
Xxxxxxx X. Xxxx, CEO
________________________________
