Exhibit 10.1
COMMERCIAL LEASE
1. PARTIES. This Lease, dated the 13th day of June, 2006, is made by and between
SAND BAR PROPERTIES, LLC, a Florida Limited Liability Company, (herein called
the "Lessor") and ALLIANCE DISTRIBUTORS HOLDING INC., a Delaware corporation,
(herein called the "Lessee"). Lessor and Lessee are sometimes collectively
referred to as "the Parties".
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor for
the term, at the rental, and upon all of the conditions set forth herein that
certain real property situated in Miami-Dade County, State of Florida, commonly
known as 0000 XX 000 Xxxxx, Xxxxx, Xxxxxxx 00000, and described as warehouse and
office space. Said property, including the land, parking areas, loading bays,
and all improvements thereon and appurtenances thereto, including, but not
limited to shelving, and every other installation currently located at the
Premises, is herein called "the Premises".
3. TERM. The term of this Lease shall be for five (5) years commencing on the
1st day of June, 2006, and ending on the 31st day of May, 2011, unless sooner
terminated pursuant to any provision hereof.
4. RENT. Lessee shall pay to Lessor for the Premises monthly payments of rent,
in advance without offset, demand or deduction whatsoever on the 1st day of each
and every month as follows:
$4,700.00 commencing June 1, 2006 until May 31, 2008 ($112,800.00)
$4,794.00 commencing June 1, 2008 until May 31, 2009 ($57,528.00)
$4,889.88 commencing June 1, 2009 until May 31, 2010 ($58,678.56)
$4,987.68 commencing June 1, 2010 until May 31, 2011 ($59,852.16)
for a total of $288,858.72.
All rental payment shall be accompanied by payment for monthly Condominium
Maintenance fees (presently $600.00 per month, 1/12 of the annual Real Property
Tax (presently $800.00 per month and all applicable sale taxes (presently 7%)
Rent shall be payable in lawful money of the United States to Lessor at: 0000 XX
00 Xxxxxxx, Xxxxx, Xxxxxxx 00000. Rent shall be prorated to the date possession
is delivered.
5. DEPOSITS: SECURITY AND RENTS
5.1 Lessee shall deposit with Lessor upon execution hereof the sum
of Fourteen Thousand Three Hundred Eighty Seven Dollars and 68/100 ($14,387.68)
as first month's rent, last month's rent, and security for Lessee's faithful
performance of Lessee's obligations hereunder. If Lessee fails to pay rent or
other charges due hereunder, or otherwise defaults with respect to any
provision(s) of this Lease, Lessor may use, apply or retain all or any portion
of said deposit for payment of any rent or other charge in default or for the
payment of any other sum to which Lessor may become obligated by reason of
Lessee's default, after giving Lessee notice of such default and a three (3)
working day right to cure, or to compensate Lessor for any loss or damage which
Lessor may suffer thereby. If Lessor so uses or applies all or any portion of
said deposit, Lessee shall within ten (10) days after written demand therefor,
deposit cash with Lessor in an amount sufficient to restore said deposit to the
full amount hereinabove stated, and Lessee's failure to do so shall be a
material breach of this Lease. Lessor shall not be required to keep said deposit
separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not theretofore
been applied by Lessor, shall be returned, without payment of interest or other
increment for its use, to Lessee at the expiration of the term hereof, and after
Lessee has vacated the Premises. No trust relationship is created herein between
Lessor and Lessee with respect to said Security Deposit.
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If Lessee tenders a rent check which is returned by Lessee's bank for any
reason, all future rent payments shall be made by cashier's check only.
Any rental payment more than five (5) days late must be accompanied by a
five per cent (5%) late charge to be accepted by Lessor.
6. USE.
6.1 USE. The Premises shall be used and occupied only as a warehouse
and distribution center with offices, or any other use sanctioned by the
Condominium Association which is reasonably comparable and for no other
purposes. To the best of Landlords knowledge, the aforesaid intended use is a
legal use.
6.2 COMPLIANCE WITH LAW. Lessee shall, at Lessee's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders,
covenants and restrictions of record, and requirements in effect during the term
or any part of the term hereof, regulating the use by Lessee of the Premises.
Lessee shall not use nor permit the use of the Premises in any manner that will
tend to create waste or a nuisance and agrees to strictly adhere to the
Condominium rules and regulations, a copy of which has been provided to Lessee.
Notwithstanding the foregoing, Lessee shall not be required to make any capital
or other improvements to the Premises, provided Lessee uses the Premises as set
forth in 6.1.
6.3 CONDITION OF PREMISES.
(a) Lessee is in possession of the premises and acknowledges that
Lessor has delivered the Premises to Lessee in a condition entirely satisfactory
to Lessee.
(b) Lessee hereby accepts the Premises in their condition existing
as of the Lease commencement date or the date that Lessee takes possession of
the Premises, whichever is earlier, subject to all applicable zoning, municipal,
county, and state laws, ordinances, and regulations governing and regulating the
use of the Premises, and any covenants or restrictions of record, and accepts
this Lease subject thereto. Except as set forth herein, Lessee acknowledges that
neither Lessor nor Lessor's agent (if any) has made any representation or
warranty as to the present or future suitability of the Premises for the conduct
of Lessee's business.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
(a) Lessee hereby accepts the premises in the condition it is in at
the beginning of this lease and agrees to maintain said premises in the same
condition, order and repair as it exists at the commencement of said term,
excepting only reasonable wear and tear arising from the use thereof under this
agreement, and to make good to said Lessor immediately upon demand, any damage
to water apparatus, or electric lights or any fixture, appliances or
appurtenances of said premises, or of the building, caused by any act or neglect
of Lessee, or of any person or persons in the employ or under the control of the
lease.
(b) If Lessee fails to perform Lessee's obligations under this
Paragraph or under any other paragraph of this Lease, Lessor may at Lessor's
option enter upon the Premises after three (3) days prior written notice to
Lessee (except in the case of emergency, in which case no notice shall be
required), perform such obligations on Lessee's behalf and put the Premises in
good order, condition, and repair, and the cost thereof together with interest
thereon at the maximum rate then allowable by law shall be due and payable as
additional rent to Lessor together with Lessee's next rental installment.
(c) On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same condition
as acknowledged hereinabove, ordinary wear and tear excepted, clean and free of
debris. Lessee shall repair any damage to the Premises occasioned by the
installation or removal of its trade fixtures, furnishings, and equipment.
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7.1 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written consent, make
any alterations, improvements, additions, in, on, or about the Premises. Lessee
shall make no change or alteration to the exterior of the Premises nor the
exterior of the building(s) on the Premises without Lessor's prior written
consent. Lessor may require that Lessee remove any or all of said alterations,
improvements, additions, or utility installations at the expiration of the term
and restore the Premises to their prior condition. Should Lessee make any
alterations, improvements, additions, or utility installations without the prior
written approval of Lessor, Lessor may require that Lessee remove any or all of
the same. (b) Unless Lessor requires their removal, all alterations,
improvements, additions, which may be made on the Premises, shall become the
property of Lessor and remain upon and be surrendered with the Premises at the
expiration of the term. Notwithstanding the provisions of this Paragraph,
Lessee's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises,
shall remain the property of Lessee and may be removed by Lessee subject to the
provisions of this Paragraph.
8. INSURANCE: INDEMNITY.
(a) LIABILITY INSURANCE Lessee shall obtain at Lessee's expense and
keep in full force during the term of this Lease a policy of Combined Single
Limit Bodily Injury and Property Damage Insurance insuring Lessor against any
liability arising out of the ownership, use, occupancy, or maintenance of the
Premises and all areas appurtenant thereto in an amount not less than
$1,000,000.00 per occurrence.
(b) INSURANCE POLICIES. Insurance required hereunder shall be in
companies holding a "General Policyholders Rating" of at least B plus, or such
other rating as may be required by a lender having a lien on the Premises, as
set forth in the most current issue of "Best Insurance Guide". Lessee shall not
do or permit to be done anything which shall invalidate the Lessor's insurance
policies.
(c) INDEMNITY. Lessee shall indemnify and hold harmless Lessor from
and against any and all claims arising from Lessee's use of the Premises, or
from the conduct of Lessee's use of the Premises, or from the conduct of
Lessee's business or from any activity, work, or things done, permitted, or
suffered by Lessee in or about the Premises and shall further indemnify and hold
harmless Lessor from and against any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease, or
arising from any negligence of the Lessee, or any of Lessee's agents,
contractors, employees, and from and against all costs, attorney's fees,
expenses, and liabilities incurred in the defense of any such claim or any
action or proceeding brought thereon; and in case any action or proceeding be
brought against Lessor by reason of any such claim, Lessee upon notice from
Lessor shall defend the same at Lessee's expense by counsel satisfactory to
Lessor. Lessee, as a material part of the consideration to Lessor, hereby
assumes all risk of damage to property or injury to persons in, upon, or about
the Premises arising from any cause, and Lessee hereby waives all claims in
respect thereof against Lessor.
(d) EXEMPTION OF LESSOR FROM LIABILITY. Except for Lessor's gross
negligence, Lessee hereby agrees that Lessor shall not be liable for injury to
lessee's business or any loss of income therefrom or for damage to the goods,
wares, merchandise, or other property of Lessee, Lessee's employees, invitee,
customers, or any other person in or about the Premises, nor shall Lessor be
liable for injury to the person of Lessee, Lessee's employees, agents, or
contractors, whether such damage or injury is caused by or from fire, steam,
electricity, gas water or rain, or from any other cause, whether the said damage
or injury results from conditions arising upon the Premises or upon other
portions of the building of which the Premises are a part, or from other sources
or places and regardless of whether the cause of such damage or injury or the
means of repairing the same is inaccessible to Lessee. Except for Lessor's
intentional acts, Lessor shall not be liable for any damages arising from any
act or neglect of any other tenant, if any, of the building in which the
Premises are located.
9. DAMAGE OR DESTRUCTION
(a) In the event the premises shall be destroyed or so damaged or
injured by fire or other casualty during the life of this agreement, whereby the
same shall be rendered untenantable, then the Lessor shall have the right to
render said premises tenantable by repairs within ninety days therefrom. If said
premises are not rendered tenantable within said time, it shall be optional with
either party hereto to cancel this lease, and in the event of such cancellation
the rent shall be paid only to the date of such fire or casualty. The
cancellation herein mentioned shall be evidenced in writing.
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(b) WAIVER. Lessor and Lessee waive the provisions of any statutes
which relate to termination of leases when leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
(c) It is expressly agreed and understood by and between the parties
to this agreement that Lessor shall not be liable (except for Lessor's own
intentional acts or gross negligence) for any damage or injury by water, which
may be sustained by the said tenant or other person or for any other damage or
injury resulting from the carelessness, negligence, or improper conduct on the
part of any other tenant or agents, or employees, or by reason of the breakage,
leakage, or obstruction of the water, sewer, or soil pipes, roof, walls or other
water leakage or wind damage in or about the said building.
10. TAXES.
Lessee shall pay, prior to delinquency, all taxes assessed against
and levied upon trade fixtures, furnishings, equipment, and all other personal
property of Lessor and Lessee contained in the Premises.
11. UTILITIES. Lessee shall pay for water, gas, heat, light, power, telephone,
trash disposal and other utilities and services supplied to the Premises,
together with any taxes thereon and shall carry such services solely in Lessee's
name.
12. ASSIGNMENT AND SUBLETTING Lessee shall not voluntarily or by operation of
law assign, transfer, mortgage, sublet, or otherwise transfer or encumber all or
any part of Lessee's interest in this Lease or in the Premises without Lessor's
prior written consent, which Lessor shall not be unreasonably withheld, however,
Lessor may require additional security and personal guarantees. Lessor shall
respond to Lessee's request for consent hereunder in a timely manner and any
attempted assignment, transfer, mortgage, encumbrance, or subletting without
such consent shall be void and shall constitute a breach of this Lease.
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13. DEFAULTS: REMEDIES.
13.1 DEFAULTS. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent, if notice to
Lessee that payment was not received, and a three (3) working day right of
Lessee to cure.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Lessee, where such failure shall continue for a period of ten (10) days after
written notice hereof from Lessor to Lessee.
(d) (i) The making by Lessee of any general arrangement or
assignment for the benefit of creditors; (ii) Lessee becomes a "debtor" as
defined in 11 U.S.C. ss..101 or any successor statute thereto (unless, in the
case of a petition filed against Lessee, the same is dismissed within 60 days);
(iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within 30
days; or (iv) the attachment, execution, or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within thirty (30)
days. Provided, however, in the event that any provision of this Paragraph is
contrary to any applicable law, such provision shall be of no force or effect.
13.2 REMEDIES. In the event of any such material default or breach
by Lessee, Lessor may at any time thereafter, with or without notice or demand
and without limiting Lessor in the exercise of any right or remedy which Lessor
may have by reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event Lessor
shall be entitled to recover from Lessee all damages incurred by Lessor by
reason of Lessee's default including, but not limited to, the cost of recovering
possession of the Premises; expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and any
real estate commission actually paid; the worth at the time of award by the
court having jurisdiction thereof of the amount by which the unpaid rent for the
balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee proves could be reasonably avoided.
(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event, Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent.
Lessor may accelerate all rent due pursuant to this Lease and declare all rent
immediately due and payable in the event Lessee has defaulted on the payment of
rent and remains in default for five (5) days after actual receipt of written
notice.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the State of Florida. Unpaid
installments of rent and other unpaid monetary obligations of Lessee under the
terms of this Lease shall bear interest form the date due at the maximum rate
then allowable by Law.
13.3 DEFAULT BY LESSOR. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but in
no event later than 30 days after written notice of Lessee to Lessor and to the
holder of any first mortgage or deed of trust covering the Premises whose name
and address shall have theretofore been furnished to Lessee in writing,
specifying wherein Lessor has failed to perform such obligation; provided,
however, that if the nature of Lessor's obligation is such that more than thirty
(30) days are required for performance, then Lessor shall not be in default if
Lessor commences performance within such thirty (30) day period and thereafter
diligently prosecutes the same to completion.
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14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(all of which are herein called "condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. Any award for the taking of all or any part
of the Premises under the power of eminent domain or any payment made under
threat of the exercise of such power shall be the property of Lessor, whether
such award shall be made as compensation or diminution in value of the leasehold
or for the taking of the fee, or as severance damages.
15. BROKER'S FEE. Both parties represent to the other that the only real estate
brokers that have been engaged by them in connection with this transaction are
EAG Realty and GM Realty which will be compensated by Lessor in accordance with
a separate agreement.
16. ESTOPPEL CERTIFICATE.
(a) Lessee shall at any time upon not less than ten (10) day's prior
written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrance of the Premises.
(b) At Lessor's option, Lessee's failure to deliver such statement
within such time shall be a material breach of this Lease or shall be conclusive
upon Lessee (i) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (ii) that there are no
uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance or such failure may be considered by
Lessor as a default by Lessee under this Lease.
(c) If Lessor desires to finance, refinance or sell the Premises, or
any part thereof, Lessee hereby agrees to deliver to any lender or purchaser
designated by Lessor such financial statements of Lessee as may be reasonably
required by such lender or purchaser. Such statements shall include the past
three (3) years' financial statements of Lessee. All such financial statements
shall be received by Lessor and such lender or purchaser in confidence and shall
be used only for the purposes herein set forth.
17. SEVERABLE COVENANTS. All of the provisions of this Lease are to be construed
as covenants, even though not expressed as such. If any such provision is held
or rendered illegal or unenforceable, it shall be considered separate and
severable from this Lease, and the remaining provision of this Lease shall
remain in full force and bind the parties as though the illegal or unenforceable
provisions had never been included in this Lease.
18. TIME OF ESSENCE. The parties acknowledge that as to the performance of each
and every provision and covenant hereof, that time is of the essence.
19. ADDITIONAL RENT. Any and all monetary obligations of Lessee to Lessor under
the terms of this Lease shall be deemed to be rent.
20. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective.
This Lease may be modified in writing only, signed by the parties in interest at
the time of the modification. Except as otherwise stated in this Lease, Lessee
hereby acknowledges that neither Lessor nor any of its agents have made any oral
or written warranties or representations to Lessee relative to the condition or
use by Lessee of said Premises; and Lessee acknowledges that Lessee assumes all
responsibility regarding the Occupational Safety Health Act, the legal use and
adaptability of the Premises and the compliance thereof with all applicable laws
and regulations in effect during the term of this lease except as otherwise
specifically stated in this Lease.
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21. WAIVERS. No waiver by Lessor or any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to, or approval of any act,
shall not be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act by Lessee. The acceptance of rent hereunder by
Lessor shall not be deemed a waiver of any preceding breach by Lessee of any
provision hereof, other than the failure of Lessee to pay the particular rent so
accepted, regardless of Lessor's knowledge of such preceding breach at the time
of acceptance of such rent.
22. RECORDING. Neither this Lease, any copy hereof, nor memorandum of this Lease
shall be recorded by any party for any purpose.
23. HOLDING OVER. If Lessee, with Lessor's consent, remains in possession of the
Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month upon all the provisions of this
Lease pertaining to the obligations of Lessee.
24. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other remedies at
law or in equity.
25. COVENANTS AND CONDITIONS. Each provision of this Lease performable by Lessee
shall be deemed both a covenant and a condition.
26. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof restricting
assignment or subletting by Lessee, this Lease shall bind the parties, their
personal representatives, successors and assigns. This Lease shall be governed
by the laws of the State of Florida.
27. SUBORDINATION.
(a) This Lease, at Lessor's option, shall be subordinate to any
ground lease, mortgage, deed of trust, or any other hypothecation or security
now or hereafter placed upon the real property of which the Premises are a part
and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease subordinate to the lien of any
mortgage, deed of trust, or ground lease, as the case may be. Lessee's failure
to execute such documents within ten (10) days after written demand shall
constitute a material default by Lessee hereunder, or at Lessor's option, Lessor
shall execute such documents on behalf of Lessee as Lessee's attorney-in-fact.
Lessee does hereby make, constitute, and irrevocably appoint Lessor as Lessee's
attorney-in-fact and in Lessee's name, place and stead, to execute such
documents in accordance with this Paragraph.
28. ATTORNEY'S FEES. If either party brings an action to enforce the terms
hereof or declare rights hereunder, the prevailing party in any such action, on
trial or appeal, shall be entitled to its reasonable attorneys' fees to be paid
by the losing party as fixed by the court.
29. LESSOR'S ACCESS. Lessor and Lessor's agents shall have the right to enter
the Premises at any reasonable time(s), upon twenty-four (24) hour prior notice,
for the purpose of inspecting the same, showing the same to prospective
purchasers, lenders or lessees, and making such alterations, repairs,
improvements or additions to the Premises or to the building of which they are a
part as Lessor may deem necessary or desirable. Lessor may at any time place on
or about the Premises any ordinary "For Sale" signs and Lessor may at any time
during the last 120 days of the term hereof place on or about the Premises any
ordinary "For Lease" signs, all without rebate or rent or liability to Lessee.
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30. SIGNS. Lessee shall not place any sign upon the Premises without Lessor's
prior written consent
31. MERGER. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination by Lessor, shall not work a merger
and shall, at the option of Lessor, terminate all or any existing subtenancies
or may, at the option of Lessor, operate as an assignment to Lessor of any or
all of the subtenancies.
32. CONSENTS. Wherever in this Lease the consent of one party is required to an
act of the other party, such consent shall not be unreasonably withheld.
33. QUIET POSSESSION. Upon Lessee paying the rent for the Premises and observing
and performing all of the covenants, conditions, and provisions on Lessee's part
to be observed and performed hereunder, Lessee shall have quiet possession of
the Premises for the entire term hereof subject to all of the provisions of this
Lease.
34. 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. Lessor makes no
representations regarding Radon Gas, and Lessee agrees to take such actions as
may be necessary to protect Lessee and its employees, agent, invitees and other
persons who may enter upon the Premises.
35. NOTICES. Notices required hereunder shall be deemed sufficient is sent by
United States Mail, postage prepaid, by certified mail, return-receipt
requested, to the parties at the addresses as follows:
As to Lessor: c/o Xxxx X. Xxxxxxxxx, P.A.
0000 Xxxxx Xx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
As to Lessee: Alliance Distributors Holding Inc.
00-00 000xx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxx 00000
or to such other addresses as the parties may give notice in the future. Notices
shall be deemed effective as of the date it is received, refused or the date the
post office returned the undelivered notice to the sender.
36. NON-FORFEITURE OR WAIVER. The rights of Lessor under the foregoing shall be
cumulative, and failure on the part of Lessor to exercise promptly any rights
given hereunder shall not operate to forfeit or waive any of the said rights.
37. OTHER PROVISIONS.
(a) Lessee shall bear the expense of purchasing and installing a
security gate on the second floor to secure separation from
adjoining space.
(b) Lessee shall bear the expense of providing and installing either
cinder block or a security gate to seal the warehouse opening to the
ground level.
(c) Upon termination of the Lease, at Lessor's option, Lessee will bear
the expense of restoring the premises to the condition that existed
prior to the occurrence of (a) and/or (b).
(d) This Lease is conditioned upon and shall only take effect upon
Lessor delivering to Lessee's Lender a duly acknowledged and
executed Landlord's Subordination in the form annexed hereto.
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Witnesses: LESSOR:
SAND BAR PROPERTIES, LLC
a Florida Limited Liability Company
-------------------------- -----------------------------------
(Witness Signature) By XXXXXX XXXXX, President
Print name:
--------------------------
(Witness Signature)
Print name:
LESSEE:
-------------------------- ALLIANCE DISTRIBUTORS HOLDING INC.
(Witness Signature) a Delaware corporation
Print name:
--------------------------
(Witness Signature) By: XXXXX XXXXXX, President and
Print name: Chief Operating Officer
LANDLORD'S SUBORDINATION
Agreement executed and delivered as of this June 9th, 2006 by SAND BAR
PROPERTIES LLC, having an address at c/o Xxxx X. Xxxxxxxxx, P.A., 0000 Xxxxx Xx
Xxxx Xxxxxxxxx, Xxxxx 000,Xxxxx Xxxxxx, Xxxxxxx 00000 (the "Landlord"), in favor
of XXXXXXXXX & XXXXXXXXX, INC., 0000 Xxxxxxxx, Xxx Xxxx, XX ("Lender")
WITNESSETH:
WHEREAS, Landlord is the owner of, or the holder of a lessor interest in
the premises located at Miami-Dade County, State of Florida, commonly known as
0000 XX 000 Xxxxx, Xxxxx, Xxxxxxx 00000 (the "Leased Premises"), which Leased
Premises (or a portion thereof) have been leased by Landlord to ALLIANCE
DISTRIBUTORS HOLDING INC. (the "Tenant"), a corporation organized under the laws
of the State of Delaware and having a place of business at 00-00 000xx Xxxxxx,
Xxxxxxx Xxxxx, XX 00000 under a certain written lease between Landlord and
Tenant dated June 13th, 2006 (the "Lease");
WHEREAS, to secure Tenant's obligations to Lender (the "Obligations")
under and as defined in a Financing Agreement dated November 11, 2004 between
Lender and Tenant or executed by Tenant in favor of Lender (the "Agreement"),
Tenant has granted Lender a security interest in all of Tenant's now owned and
hereafter acquired inventory and equipment and the proceeds thereof, as such
terms are defined in the Uniform Commercial Code as in effect from time to time
in the state in which the Leased Premises are located, including any inventory
or equipment that is or may hereafter be located on and or affixed to the Leased
Premises (the "Collateral"); provided that in no event shall the term Collateral
include any personal property whichis part of the air conditioning, mechanical,
plumbing and electrical systems relating to the Leased Premises;
NOW, THEREFORE, to induce Lender to continue to extend financial
accommodations secured by the Collateral, Landlord hereby agrees as follows:
1. Landlord hereby subordinates in favor of Lender, so long as any
Obligations are outstanding, any and all liens, claims, rights of distraint,
distress or levy or other rights which Landlord now has or may hereafter have
under the statutory or nonstatutory provisions of the laws now or hereafter in
effect in the State in which the Leased Premises are located, or pursuant to the
Lease or otherwise, to levy, distrain, seize or otherwise make any claim upon
any of the Collateral, for rent (in arrears, in advance or both), or for any
other cause or reason to claim or assert title to any the Collateral
(hereinafter, a "Landlord Interest") and agrees that any security interest that
Lender has or may hereafter have in the Collateral is and will be superior and
prior to the Landlord Interest.
2.Landlord hereby agrees that regardless of the manner of attachment to
the Leased Premises, the Collateral shall not be deemed a part of the realty,
but shall remain personal property, and regardless of any law, statute, the
Lease, or other provision to the contrary, Lender and its successors and assigns
shall retain all rights of removal of any or all of the Collateral, free and
clear of the Landlord Interest, after default or the occurrence of an event of
default by Tenant in the performance or payment of any of the Obligations or any
other default under the Agreement or other agreements between Tenant and Lender
or executed by Tenant in favor of Lender or evidencing, guaranteeing or granting
collateral security for the Obligations (the Agreement and such other agreements
being hereinafter referred to as the "Financing Agreements").
3.Following any default by Tenant in its obligations to Landlord under
the Lease or any default by Tenant in payment or performance of any of the
Obligations or any other breach by Tenant under the Financing Agreements (a
"Borrowing Default"), Lender may at its option but shall not be obligated to
enter upon and remain on the Leased Premises for a period of up to ninety (90)
days for the purpose of removing the Collateral from the Leased Premises and/or
preparing the Collateral for sale and holding a foreclosure sale of the
Collateral on the Leased Premises. Such 90 day period (the "Initial Occupancy
Period") shall commence on the earlier to occur of (i) seven (7) days after
Lender gives Landlord written notice of Lender's election to remove the
Collateral from the Leased Premises and/or hold a foreclosure sale of the
Collateral on the Leased Premises based on a Borrowing Default; or (ii) seven
(7) days after Landlord gives Lender written notice of a default by Tenant under
the Lease (a "Lease Default") except that if Lender is unable to enter upon the
Leased Premises as the result of legal restraint by any party, the Occupancy
Period shall not be deemed to commence until such legal restraint is lifted.
Landlord agrees to give Lender written notice of any Lease Default at the same
time and in the same manner that Landlord gives such notice to Tenant.
Following the lapse of the Initial Occupancy Period, Lender may at its
option remain on the Leased Premises but Landlord may upon seven (7) days
written notice to Lender, terminate Lender's occupancy of the Leased Premises
subsequent to the end of the Initial Occupancy Period, at which time Lender will
be required to vacate the Leased Premises.
During the period of Lender's occupancy of the Leased Premises pursuant to
the terms hereof (i) Lender shall pay Landlord rent on the entire Leased
Premises based on the same rental terms as provided to the Tenant; (ii) Landlord
shall have no obligation to maintain security for the area occupied by Lender,
and will not be liable in any way for any harm or loss to the Collateral; and
(iii) Lender may either remove the Collateral directly or hold a foreclosure
sale of the Collateral on the Leased Premises and arrange for the removal of the
Collateral from the Leased Premises by the purchasers of such Collateral. Lender
shall reimburse Landlord for the reasonable and necessary cost of the repair of
any damage to the Leased Premises caused by removal of the Collateral from the
Leased Premises or the preparation for sale and/or sale of the Collateral while
on the Leased Premises.
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The sale and/or removal of the Collateral by Lender shall be free and
clear of any Landlord Interest but without prejudice to any claim the Landlord
may have to proceeds of the Collateral remaining after application of such
proceeds to payment in full of the Obligations.
Nothing contained herein is intended to (i) obligate Lender to enter upon
the Leased Premises for the purpose of removing or selling the Collateral; or
(ii) constitute an assumption by Lender of the Lease or impose on Lender any
obligations of Tenant under the Lease except for the obligation to pay rent
during the period of Lender's occupancy of the Leased Premises.
4.Lender may at any time, in its sole discretion in each instance,
without affecting the validity of this agreement of waiver and subordination,
renew, extend and/or modify any of the Obligations and/or any of the terms and
conditions of any of the Financing Agreements without the consent of, and
without giving notice thereof to, Landlord.
5. Landlord waives notice of acceptance by Lender of this agreement of
waiver and subordination. Landlord also waives notice of any and all loans,
advances and financial accommodations at any time granted by Lender, the payment
of which Tenant is liable for as principal, guarantor, surety or otherwise.
Landlord represents that no default or event of default by Tenant has occurred
and is continuing under the Lease. Landlord agrees that Landlord shall, if
requested to do so by Lender, make, execute and deliver any further documents or
instruments reasonably required by Lender to give effect to the within waiver
and subordination of any lien or claim by Landlord against the Collateral.
6.This Agreement shall remain in force and effect so long as any
Obligations of Tenant are outstanding to Lender, and this Agreement shall inure
to the benefit of Lender and its successors and assigns, and shall be binding
upon Landlord and its successors and assigns.
7.Any notice required or permitted to be given pursuant to the terms
hereof shall be deemed given when actually received at the address of each party
set forth below:
Landlord: SAND BAR PROPERTIES LLC
0000 XX 00 Xxxxxxx, Xxxxx, XX 00000
Tenant: ALLIANCE DISTRIBUTORS HOLDING INC.
00-00 000xx Xxxxxx, Xxxxxxx Xxxxx XX 00000
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Lender: XXXXXXXXX & XXXXXXXXX, INC.
0000 Xxxxxxxx, Xxx Xxxx, XX
In witness whereof the parties have executed below.
XXXXXXXXX & XXXXXXXXX, INC.
By:_______________________
Title: _____________________
SAND BAR PROPERTIES LLC
By:________________________
Name: _____________________
Title: ______________________
By its execution below, Tenant hereby agrees that a Lease Default shall
constitute a default under the Financing Agreement.
ALLIANCE DISTRIBUTORS HOLDING, INC.
By: __________________________
Xxx Xxxxxx
Chief Executive Officer
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ACKNOWLEDGMENTS
STATE OF FLORIDA )
: ss.:
COUNTY OF DADE )
On the ___ day of June in the year 2006 before me, the undersigned,
personally appeared _____________________, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
---------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF ______________)
On the ___ day of ________ in the year 2006 before me, the undersigned,
personally appeared _____________________, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
---------------------------------------
Notary Public
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STATE OF NEW YORK )
: ss.:
COUNTY OF ________ )
On the ___ day of ____________ in the year 2006 before me, the
undersigned, personally appeared ________________________, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
--------------------------------------
Notary Public
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