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EXHIBIT 10.32
33188600-3
LEASE AGREEMENT - XXXXXX XXXXX XX XXXXXXXX XXXXXX
XXXXXXXX: FOUNTAIN ASSOCIATES I, LTD.,
a Florida limited partnership
TENANT: ANCHOR GLASS CONTAINER CORPORATION
RENTABLE
SQ. FT.: Approximately One Hundred Thousand Square Feet
TERM: Ten Years
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TABLE OF CONTENTS
Paragraph Page
1. Premises and Term .................................................. 5
2. Possession.......................................................... 6
3. Rental.............................................................. 7
4. Sales Tax and Real Estate Taxes..................................... 8
5. Use................................................................. 9
6. Acceptance of Premises.............................................. 9
7. Tenant's Care....................................................... 10
8. Destruction or Damage to Premises .................................. 12
9. Default by Tenant - Landlord's Remedies............................. 13
10. Landlord's Liability................................................ 17
11. Assignment and Subletting........................................... 17
12. Condemnation........................................................ 19
13. Inspections and Access to Premises.................................. 22
14. Subordination and Lease Amendment .................................. 22
15. Indemnity........................................................... 24
16. Tenant's Insurance.................................................. 24
17. Remedies Cumulative................................................. 25
18. Holding Over........................................................ 25
19. Entire Agreement - No Waiver........................................ 26
20. Waiver of Jury Trial................................................ 26
21. Headings............................................................ 26
22. Notices............................................................. 26
23. Heirs and Assigns - Parties......................................... 27
24. Attorneys' Fees..................................................... 28
25. Time of Essence..................................................... 28
26. Building Specifications............................................. 28
27. Standard Tenant Allowance........................................... 28
28. Arbitration......................................................... 28
29. Rules and Regulations............................................... 28
30. Broker and Indemnity................................................ 29
31. Space Planning...................................................... 29
32. Identification of Building, Road and Project........................ 29
33. Quiet Enjoyment..................................................... 29
34. Force Majeure....................................................... 30
35. Relationship of the Parties......................................... 30
36. Corporate Tenant.................................................... 30
37. Miscellaneous ...................................................... 30
38. Survey and Title Insurance.......................................... 30
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39. Saving Provision.................................................... 31
40. Effectiveness of Lease.............................................. 31
41. Limited Partnership Landlord........................................ 31
42. Assignment of Voting Rights......................................... 31
43. Default by Landlord................................................. 31
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Exhibit A: Description of the Premises
Exhibit B: Plans and Specifications
Exhibit C: Description of the Development
Exhibit D: Building Specifications
Exhibit E: Standard Tenant Allowance
Exhibit F: Tenant Improvement Critical Date Schedule
Exhibit G: Rent Formula
Exhibit B: Project Cost Budget
Exhibit 1: Building Option Agreement
Exhibit J: Standard of Maintenance for the Building
Exhibit K: List of Items for which there is no
Landlord's Lien
Exhibit L: Subordination, Non-Disturbance and
Attornment Agreement
Exhibit M: Land Option Agreement
Exhibit N: Option Agreement for Parking Easement
Exhibit O: Memorandum of Lease
Exhibit P: Collateral Assignment of Option Agreement
for Parking Easement
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LEASE AGREEMENT - ANCHOR PLACE AT FOUNTAIN SQUARE
THIS LEASE is made this 31 day of March, 1988, by and between
FOUNTAIN ASSOCIATES I, LTD., a Florida limited partnership (the "Landlord"),
whose address is: c/x Xxxxxx Management Company, 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxx, Xxxxx, Xxxxxxx 00000, and ANCHOR GLASS CONTAINER CORPORATION, a
Delaware corporation (the "Tenant"), whose address is: One Anchor Place, 0000
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000-0000.
1. PREMISES AND TERM
Landlord for and in consideration of the rents hereinafter reserved, of
the covenants, agreements and conditions hereinafter set forth, to be kept or
performed on the part of Tenant, hereby leases to Tenant, and Tenant hereby
rents and leases from Landlord the premises described in Exhibit A attached
hereto and incorporated herein by reference (the "Premises"), the two-story
atrium building (the "Building") containing approximately One Hundred Thousand
(100,000) square feet of rentable space located on the Premises and surface
parking spaces for use by Tenant for the term of this Lease. The parties agree
that between Four Hundred Fifteen (415) and Four Hundred Twenty-Three (423)
surface parking spaces are to be constructed. Landlord shall supply Tenant with
a copy of the Plans and Specifications for the improvements to be constructed on
the Premises by Landlord and Tenant shall initial the same indicating Tenant's
approval of the Plans and Specifications. The Plans and Specifications will be
attached to this Lease as Exhibit B and incorporated herein by reference. The
improvements to be constructed by Landlord shall be completed in substantial
accordance with the specifications set forth in Exhibit B attached hereto and
incorporated herein by reference and the other items of work and materials, if
any, as may be required under the terms of any work letter which may be executed
between Landlord and Tenant in connection with this Lease. Notwithstanding the
foregoing, Landlord shall have the right to make upgrades to the Plans and
Specifications which do not affect the structure of the Building provided that
such upgrades do not exceed the cost of Fifteen Thousand Dollars ($l5,000.00)
per occurrence and Two Hundred Thousand Dollars ($200,000.00) in the aggregate.
Landlord shall not have the right to make any downgrades to the Plans and
Specifications if such downgrades materially affect the quality of the
improvements.
The Landlord also grants to the Tenant the nonexclusive right to use the
areas in the FOUNTAIN SQUARE DEVELOPMENT which are designated by Landlord as
common areas to be used by all tenants and occupants of the FOUNTAIN SQUARE
DEVELOPMENT (the "Development") in common with Landlord and the tenants and
occupants of the Development (their agents, employees, and invitees), for a term
to commence on the 25th day of November, 1988, and to end at midnight on the
24th day of November, 1998, such period being the term of this Lease (the
"Term"). The
Development is more particularly described in Exhibit C attached hereto and
incorporated herein by reference. The date specified above for the commencement
of the Term, or, if Landlord cannot deliver the Premises for possession by
Tenant on such date, then the date when Landlord can deliver the Premises for
possession by Tenant is hereinafter referred to as the commencement date (the
"Commencement Date"). For the purposes of this Paragraph, the Premises shall be
deemed delivered
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for possession by Tenant as soon as Landlord has substantially completed
Landlord's work as described in Exhibit D and Exhibit E attached hereto and
incorporated herein by reference. Landlord's architect shall determine whether
the Landlord's work has been substantially completed and if the inspector for
the lender who is providing financing for the improvements to be constructed on
the Premises informs the lender that the improvements have been substantially
completed and if the Landlord's architect issues a certificate that Landlord's
work has been substantially completed, then this shall be dispositive of the
issue. Landlord's work shall be deemed substantially complete notwithstanding
the fact that (a) minor or insubstantial details of Landlord's work, mechanical
adjustment, or decoration remain to be performed, or ( b) portions of Landlord's
work have not been completed because under good construction scheduling practice
such work should be done after still incomplete finishing or other work to be
done by or on behalf of Tenant is completed, or (c) upgrades not affecting the
structure of the Building and not exceeding the cost of Fifteen Thousand Dollars
($15,000.00) per occurrence and Two Hundred Thousand Dollars ($200,000.00) in
the aggregate have been made to the Landlord's work, or (d) downgrades not
materially affecting the quality of the improvements. By occupying the Premises
the Tenant shall be conclusively deemed to have accepted the same as complying
fully with all of Landlord's covenants and obligations set forth herein, subject
to the punch list items (the "Punch List Items") which will be identified by
Anchor prior to occupancy.
2. POSSESSION.
Notwithstanding the date of the commencement of the Term as set forth in
Paragraph 1 herein, if for any reason Landlord cannot deliver possession of the
Premises to Tenant on said date because the Premises are not ready for
occupancy, or for any other reason or cause, Landlord and its agents shall not
be subject to any liability therefor, nor shall such failure affect the validity
of this Lease or the obligations of Tenant (except that the Lease shall
terminate ten (l0) years from the Commencement Date) if Landlord delivers
possession of the Premises to Tenant on or before January 1, 1989. If Landlord
does not deliver the Premises to Tenant on or before January l, 1989, (the
"Completion Penalty Date") for reason other than Landlord being delayed as a
result of: (1) Tenant's failure to comply with the Tenant Improvement Critical
Date Schedule described in Exhibit F attached hereto and incorporated herein by
reference; or (2) reasons of Force Majeure as described in Paragraph 34 of this
Lease; then Landlord will be assessed a penalty (the "Late Completion Penalty")
in the amount of Two Thousand One Hundred Dollars ($2,100.00) per day for each
day that Landlord fails to deliver the Premises to Tenant after the Completion
Penalty Date. The Lease shall terminate ten (10) years from the Commencement
Date. The Late Completion Penalty shall be deducted from the Monthly Rental. The
required commencement date of November 25, 1988, and the Completion Penalty Date
of January 1, l989, shall be extended by the number of days that Landlord is
delayed in delivering possession of the Premises by virtue of (1) Tenant's
failure to comply with the Tenant Improvement Critical Date Schedule set forth
in Exhibit F attached hereto and incorporated herein by reference or (2)
Landlord's delay by reason of Force Majeure as described in Paragraph 34 of this
Lease. If Landlord is so delayed the expiration of the term of the Lease shall
be likewise extended by the number of days of such delay and Tenant shall occupy
the Premises for a ten year term from the extended required Commencement Date
unless earlier terminated as provided in this Lease. Notwithstanding the
foregoing, in the event Landlord cannot deliver possession of the Premises to
Tenant on or before May 31, 1989, Tenant may cancel this Lease by giving written
notice to Landlord within twenty (20) days, in which event the parties hereto
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shall be discharged from all obligations hereunder. After the determination of
the Commencement Date, Tenant agrees, upon demand of Landlord, to execute,
acknowledge, and deliver to Landlord an instrument, in a form satisfactory to
Landlord, which sets forth the Commencement Date and the end of the Term and
acknowledges that the improvements constructed on the Premises have been
completed.
3. RENTAL
(a) Tenant shall pay to Xxxxxx Management Company, managing agent
for Landlord, or to any successor thereto named by Landlord, at the address
described above or at such other place as Landlord may designate in writing,
without notice or demand and without deduction, abatement, counterclaim, or
set-off whatsoever, except as may be expressly noted and authorized under the
terms of this Lease, annual rental at the rate based on the formula set forth in
Exhibit G and Exhibit H both attached hereto and incorporated herein by
reference (the "Rent Formula") payable in lawful money of the United States in
equal monthly installments (the "Monthly Rental"). The Monthly Rental includes
among other items all Debt Service payable to the Lender as defined herein. The
first Monthly Rental and sales tax thereon as set forth in Paragraph 4 herein,
shall be paid by Tenant to Landlord on the Commencement Date. Notwithstanding
the foregoing, the Tenant may use a portion of the Rent credit as defined in
Paragraph 3(f) of this Lease to apply to the Monthly Rental. All subsequent
Monthly Rentals shall be due in advance on the first day of each calendar month
during the Term, beginning with the month next succeeding the First Month, as
defined herein, and with any sales, privilege or rental tax as provided in
Paragraph 4 herein. The term "Lease Year", as used herein, (i) shall mean the
twelve (12) month period beginning with the Commencement Date as defined in
Paragraph 1 hereof, and each twelve (12) month period thereafter occurring
during the Term of this Lease, and (ii) in the event the Lease expires or
terminates on a date other than the date set forth in Paragraph 1 hereof, then
the term "Lease Year" shall also mean the period from the end of the preceding
Lease Year to the date of said expiration or termination of this Lease.
Notwithstanding anything to the contrary contained herein, in the event the
Commencement Date is other than the first day of a calendar month, then Tenant
shall pay to Landlord on the Commencement Date a sum equal to the per diem
Monthly Rental for the month in which the Commencement Date shall occur (the
"First Month") multiplied by the number of days from the Commencement Date to
the last day of the First Month, both inclusive. In the event this Lease
terminates on a day, other than the date specified in Paragraph 1 hereof, the
Monthly Rental and any Additional Rental, as herein defined shall be equitably
adjusted.
(b) Tenant agrees that any other sums due Landlord from Tenant under
the terms of this Lease, except for the Monthly Rental, shall be considered as
additional rental from Tenant (the "Additional Rental"). As used herein the term
"Rent" shall include the Monthly Rental, Additional Rental and such other
payments as are set forth herein. Rent payments are deemed to be paid when
received by Landlord.
(c) It is understood and agreed that Tenant's obligation to pay the
Additional Rental shall, for the purposes of the default provision hereof,
entitle Landlord to all remedies provided herein and at law or equity on account
of Tenant's failure to pay Rent.
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(d) Any delay or failure of Landlord in computing or billing for
Additional Rental shall not constitute a waiver or in any way impair the
continuing obligation of the Tenant to pay such Additional Rental.
(e) Landlord and Tenant agree that during the Term of this Lease,
Tenant will pay when due, any and all charges that Landlord is required to pay
in connection with the operation of the Premises including but not limited to
those charges under the Declaration of Protective Covenants, Building Standards
and Easements of Fountain Square. It is expressly acknowledged and agreed to by
the parties that Tenant will be allowed to use the common areas to be used by
all tenants and occupants of the Development (the "Common Areas").
(f) Notwithstanding the terms set forth in this paragraph, Landlord
agrees that tenant shall receive a credit for Monthly Rental of approximately
One Million and No/100 Dollars ($1,000,000.00) as adjusted in accordance with
Exhibit G attached hereto and incorporated herein by reference, which is to be
applied towards the Monthly Rental but not the Additional Rental due under this
Lease (the "Rent Credit"). The "Rent Credit" shall be amortized over the term of
the Lease in the event of a default by Tenant of the terms of the Lease. For
example, if Tenant defaults after the sixth year of the Lease then Tenant shall
pay Landlord the sum of Four Hundred Thousand Dollars ($400,000.00) for the Rent
Credit that was used but not amortized over the last four years of the Lease and
Tenant shall pay such other sums that are due to Landlord pursuant to the terms
of paragraph 9 of this Lease.
4. SALES TAX AND REAL ESTATE TAXES
Along with and in addition to each Monthly Rental payment and Additional
Rental payment under this Lease, Tenant shall pay to Landlord the sales or
privilege tax required by Florida Statutes Section 212.031 and any amendment or
replacements thereof. Tenant shall also pay as Additional Rental during the term
of this Lease all ad valorem and real estate taxes and/or assessments levied or
assessed by any lawful authority against the Premises or any improvements
thereto at least ten (10) days before such real estate taxes and/or assessments
are due. Landlord agrees to promptly furnish to Tenant all bills for ad valorem
and real estate taxes and/or assessments levied or assessed by any lawful
authority against the Premises. Tenant shall supply evidence satisfactory to
Landlord that such taxes and assessments have been paid. During the last Lease
Year Landlord shall estimate the taxes referred to in this Paragraph and Tenant
shall pay one-twelfth (1/12) thereof monthly in advance on the first day of each
calendar month during the Term. After the end of the last Lease Year or the
calendar year whichever occurs last, Landlord shall furnish Tenant a statement
of the actual taxes and there shall be an adjustment between Landlord and Tenant
with payment to or repayment by Landlord, as the case may require, to the end
that Landlord shall receive the entire amount of the taxes and assessments for
such Lease Year. If either fails to pay any balance due to the other party
within ten (10) days of receipt of such statement, then the party who is
entitled to receive such payments shall be entitled to all remedies provided at
law or in equity on account of such failure to pay the balance due.
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5. USE
The Premises shall be used and occupied by Tenant solely for the purpose
of general business offices and for no other business or purpose without the
written consent of Landlord. Tenant's use of the Premises shall not violate the
Certificate of Occupancy for the Premises or for the Building, nor any
ordinance, law or regulation of any governmental body now in force. Tenant is
responsible for obtaining the proper permits for its proposed use of the
Premises and verifying that zoning will permit that type of use. Tenant agrees
to conduct its business in the manner and according to the generally acceptable
business principles of the business or profession in which Tenant is engaged.
Tenant further agrees that its use of the Premises will not (i) create a
nuisance, disturbance, or annoyance to Landlord or any other tenant of the
Development, or (ii) vitiate any insurance policies held by Landlord or Tenant.
6. ACCEPTANCE OF PREMISES
The taking of possession of the Premises by Tenant at the Commencement
Date shall be conclusive evidence as against the Tenant that Tenant accepts the
same "as is" subject to the satisfaction of the Punch List Items, and that the
Premises and the Building were in good and satisfactory condition for the use
intended at the time such possession was taken. Neither Landlord nor Landlord's
agents have made any representations or promises with respect to the physical
condition of the Building or the Premises, the rents, leases, expenses of
operation, or any other matter or thing affecting or relating to the Premises
except as herein expressly set forth, and no rights, easements or licenses are
acquired by Tenant by implication or otherwise except as expressly set forth in
the provisions of this Lease and the Building Option Agreement executed between
the parties of even date herewith more particularly described in Exhibit I ("The
Building Option Agreement"). Landlord and Tenant shall execute a memorandum of
the Building Option Agreement in recordable form which may at Tenant's sole
option be recorded in the official records of Hillsborough County, Florida at
Tenant's expense. Tenant will inspect the Premises and sign an Acceptance of
Premises on the Commencement Date and be thoroughly acquainted with the
condition of the Premises. Unless expressly stated herein to the contrary,
Landlord has no obligation to repair, improve, or add to the Premises prior to
Tenant's occupancy thereof and Tenant shall, at its sole cost and expenses and
in compliance with the provisions of Paragraph 7(b) hereof, be responsible for
any changes, alterations, repairs, or decorations to the Premises prior to its
occupancy thereof. Landlord agrees that it will cause the general contractor to
furnish a payment and performance bond with a multi obligee rider in favor of
Tenant, Landlord and the lender who is providing financing for improvements to
be constructed on the Premises ("Lender"), a surety in an amount acceptable to
the lender. Landlord shall negotiate all warranties and assign to Tenant at the
Commencement Date all warranties that are assignable with respect to any
improvements located on the Premises including but not limited to the Building.
During the construction of the Building, Landlord shall comply with the building
codes, regulations and laws in existence in the municipality, county and/or
state which has jurisdiction over Landlord's work.
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7. TENANT'S CARE
(a) Tenant will, at Tenant's expense, keep the Premises and the
improvements constructed thereon and the fixtures and appurtenances therein,
including but not limited to the Building, the roof and structure of the
Building, the lighting, heating, plumbing, fixtures and air conditioning
equipment located in the Building in good order and repair, and in a clean and
sanitary condition, and shall perform all required maintenance as set forth in
Exhibit J and any other maintenance that is necessary to comply with this Lease
whether preventive or otherwise and all necessary repairs, ordinary and
extraordinary, foreseen and unforeseen, including all necessary replacements and
alterations required. All of the aforesaid maintenance and repairs and
replacements shall be of quality or class equal to the original work or
construction, and shall be made in accordance with the provisions of Paragraph
7(b) hereof. If Tenant fails after ten (10) days' notice thereof to proceed with
due diligence to make the repairs and replacements required to be made by
Tenant, the repairs may be made by Landlord, at the expense of Tenant and the
expenses thereof incurred by Landlord plus fifteen percent (l5%) for overhead,
shall be collectible by Landlord as Additional Rental after rendition of a xxxx
or statement therefor. There shall be no abatement of rent or rent allowance to
Tenant for diminution of rental value and no liability on the part of Landlord
by reason of inconvenience, annoyance or injury to business arising from
Landlord, Tenant or others making, or failing to make, any repairs, alterations,
additions or improvements in or to any portion of the Premises, or in or to
fixtures, appurtenances, or equipment thereof.
(b) Tenant will not, without Landlord's written consent, make
alterations, additions or improvements in or about the Premises, including, but
not limited to the Building and will not do anything to or on the Premises which
will increase the rate of fire insurance. Landlord shall not unreasonably
withhold its consent if the alternations, additions or improvements are located
in the Building and provided that such alterations, additions or improvements
are consistent with the high quality of the Premises and the Development. It is
expressly understood and agreed that Landlord is not requiring Tenant to make
any such improvements to the Premises, and no improvements by Tenant shall be
deemed improvements in accordance with an agreement between the parties, within
the meaning of the Florida Mechanics' Lien Law. All contractors, subcontractors,
mechanics, laborers, materialmen, and others who perform any work, labor or
services, or furnish any materials, or otherwise participate in the improvement
of the Premises shall be and are hereby given notice that Tenant is not
authorized to subject Landlord's interest in the Premises to any claim for
mechanics', laborers' and materialmen's liens, and all persons dealing directly
or indirectly with Tenant may not look to the Premises as security for payment.
Tenant shall save Landlord harmless from and against all expenses, liens, claims
or damages to either property or person which may or might arise by reason of
the making of any such additions, improvements, alterations and/or
installations. Tenant shall comply with the building codes, regulations and laws
now or hereafter to be made or enforced in the municipality, county and/or state
which have jurisdiction over such work. All alterations, additions or
improvements of a permanent nature made or installed by Tenant to the Premises
shall become the property of Landlord at the expiration of this Lease, unless
Landlord, in writing to Tenant no later than twenty (20) days prior to the end
of the Lease, elects to relinquish its right thereto. In such event, Tenant
shall remove the same at its sole cost and expense and shall repair any damage
to the Premises caused by said removal and shall restore the Building to its
original condition. Tenant further agrees to do the foregoing prior to the
expiration of the Term. Prior
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to making any alterations Tenant (i) shall submit to Landlord detailed plans and
specifications (including layout, architectural, mechanical and structural
drawings) for each proposed alteration and shall not commence any such
alteration without first obtaining Landlord's written approval of such plans and
specifications, (ii) shall, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies, and
(iii) shall furnish to Landlord duplicate original policies of worker's
compensation (covering all persons to be employed by Tenant, and Tenant's
contractors and subcontractors in connection with such alteration) and
comprehensive public liability (including property damage coverage) insurance in
such form, with such companies, for such periods and in such amounts as Landlord
may require, naming Landlord and its agents as additional insured. Upon
completion of such alteration, Tenant, at Tenant's expense, shall obtain
certificates of final approval of such alteration required by any governmental
or quasi-governmental bodies and shall furnish Landlord with copies thereof. All
materials and equipment to be incorporated in the Premises as a result of all
alterations shall be new and first quality and shall be of a class equal to the
original work or construction; no such materials or equipment shall be subject
to any lien, encumbrance, chattel mortgage or title retention or security
agreement. Tenant shall not, at any time prior to or during the term, directly
or indirectly employ, or permit the employment of, any contractor, mechanic or
laborer in the Premises, whether in connection with any alteration or otherwise,
if such employment will interfere or cause any conflict with other contractors,
mechanics, or laborers engaged in the construction, maintenance or operation of
any part of the Development by Landlord, Tenant or others. In the event of any
such interference or conflict, Tenant, upon demand of Landlord, shall cause all
contractors, mechanics or laborers causing such interference or conflict to
leave the Development immediately. Landlord will use reasonable efforts to
attempt to schedule when contractors, mechanics or laborers will be present at
the Development so that there will not be interference or conflict with the
Tenants, contractors, mechanics or laborers. All alterations to which Landlord
has consented shall be at Tenant's sole cost and expense. Tenant shall not
employ any contractors, subcontractors, employees, mechanics or laborers without
Landlord's prior written consent which consent may be arbitrarily withheld by
Landlord.
(c) No later than seven (7) days after the last day of the Term,
Tenant will remove all Tenant's personal property and repair all injury done by
or in connection with installation or removal of said property and surrender the
Premises and all improvements located therein whether or not paid for by Tenant
(together with all keys to the improvements located on the Premises) in as good
a condition as they were at the beginning of the Term, wear and tear as
described below and damage covered by insurance proceeds which insurance
proceeds were received by Landlord or used to reduce the outstanding debt on the
Premises incurred by Landlord, excepted. Landlord and Tenant agree that it is
the intent of this Lease that Tenant return the improvements in as good a
condition as they were at the beginning of the Term provided that the wear and
tear that would result even if all periodic and preventive maintenance that is
expected to be performed in a first class office facility were timely performed
for the improvements. All property of Tenant remaining on the Premises seven (7)
days after expiration of the Term shall be deemed conclusively abandoned and may
be removed by Landlord, and Tenant shall reimburse Landlord for the cost of
removing the same, subject however, to Landlord's right to require Tenant to
remove any improvements or additions made to Premises by Tenant pursuant to the
preceding subparagraph (b).
(d) In doing any work related to the installation of Tenant's
furnishings, fixtures, or equipment in the Premises, Tenant will use only
contractors, subcontractors, employees, mechanics
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and laborers approved by Landlord. Tenant shall promptly remove any lien for
material or labor claimed against the Premises by such contractors,
subcontractors, employees, mechanics and laborers, if such claim should arise
and hereby indemnifies and holds Landlord harmless from and against any and all
costs, expenses or liabilities incurred by Landlord as a result of such liens.
(e) Tenant shall not install or operate in the Premises any
equipment whatsoever which will or may necessitate any changes, replacements or
additions to the water system, plumbing system, heating system, air-conditioning
system or the electrical system for the Premises without the prior written
consent of Landlord which consent may be arbitrarily withheld nor shall Tenant
employ any contractors, subcontractors, employees, mechanics or laborers to make
the change without Landlord's prior written consent which consent may be
arbitrarily withheld.
(f) Tenant agrees that all personal property brought into the
Premises by Tenant, its employee, licensees and invitees shall be at the sole
risk of Tenant, and Landlord shall not be liable for theft thereof or for any
damages thereto; such theft or damage being in the sole responsibility of
Tenant.
8. DESTRUCTION OR DAMAGE TO PREMISES
(a) If the Premises are totally destroyed (or are so substantially
damaged as to be untenantable) by storm, fire, earthquake, or other casualty,
Rent shall not be abated or be prorated from the date of such damage or
destruction; however, Landlord shall promptly determine whether the Premises can
be restored within a reasonable time period from the date of such casualty. In
the event the Landlord determines in its sole discretion that the Premises
cannot be restored within a reasonable time period from the date of such
casualty even if Tenant uses the insurance proceeds received pursuant to the
provisions of this Lease, this Lease may be terminated upon written notice from
Landlord to the Tenant given not more than forty-five (45) days following the
date of the casualty and Landlord shall receive all of the insurance proceeds.
If Landlord terminates this Lease under this Paragraph, Tenant shall surrender
possession of the Premises on the date of termination and Landlord shall refund
to Tenant all advance Rent and other payments or credits made by Tenant to or on
behalf of Landlord for the period following the termination date.
Notwithstanding the foregoing, Landlord shall have no right to terminate this
Lease in the event the cost of restoration is less than fifty percent (50%) of
the replacement cost of the improvements located on the Premises. In the event
that the cost to repair the damage will cost an amount less than fifty percent
(50%) of the replacement cost of the improvements located on the Premises or in
the event such notice of termination is not given, then this Lease shall remain
in full force and effect and Landlord shall make the net insurance proceeds
received available to Tenant for repair and restoration of the damaged property,
provided that (1) there is not then in existence an event of default under the
terms of the Lease, and (2) Landlord has approved Tenant's detailed plans and
specifications (including layout, architectural, mechanical and structural
drawings) for restoring the Premises and (3) Landlord has approved Tenant's
contractors, subcontractors, employees, mechanics and laborers who will be
restoring the Premises and (4) Tenant has deposited with Landlord or the Lender
prior to the commencement of the repair and new restoration an amount equal to
the difference of the cost to restore the
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Premises as reasonably determined by Landlord and the sums made available by
Landlord on account of such net insurance proceeds.
If the damage to the improvements on the Premises is so extensive that the
repair and restoration of the improvements on the Premises is impractical or if
applicable governmental regulations prohibit the reconstruction of the
improvements on the Premises as originally constructed and Tenant receives the
insurance proceeds then, Tenant, within a reasonable time after the insurance
proceeds are made available to Tenant, shall construct substitute improvements
on the Premises consistent with the then applicable government regulations and
with plans and specifications approved by Landlord in writing, which approval
shall not be unreasonably withheld or delayed and Tenant shall remit the balance
of the insurance proceeds to Landlord.
(b) If the improvements on the Premises are damaged but not rendered
wholly untenantable by any of the events set forth in subparagraph (a) above,
Rent shall not xxxxx or be prorated; however, Tenant shall restore the
improvements on the Premises as quickly as practicable. Landlord shall make the
insurance proceeds available to Tenant to restore the improvements. on the
Premises provided that the conditions set forth in Paragraph 8(a) for use of the
insurance proceeds are satisfied prior to the commencement of the restoration.
(c) Landlord shall not be required to make any insurance proceeds
available for repair or replacement of any improvements installed in the
Premises by or for Tenant, other than the Building and the parking facilities,
nor shall Landlord be responsible for the replacement of Tenant's furniture and
furnishings. Tenant shall, at Tenant's sole cost and expense, repair and restore
such improvements to their original condition.
(d) In the event the Premises are damaged or destroyed and if the
following conditions are satisfied and if the net insurance proceeds which are
to repair or restore the Premises are not given to Tenant within twenty (20)
days after Tenant's written request then Tenant shall have the right to
terminate this Lease. The conditions that must be satisfied are the following:
(1) there is not then in existence an event of default under the terms of the
Lease, (2) Landlord has approved detailed Plans and Specifications (including
layout, architectural, mechanical and structural drawings) for restoring the
Premises, (3) Landlord has approved Tenant's contractors, subcontractors,
employees, mechanics or laborers who will be restoring the Premises and (4)
Tenant is willing to deposit with Landlord or the Lender prior to the
commencement of the repair and new restoration an amount equal to the difference
of the cost to restore the Premises as reasonably determined by Landlord and the
sums made available by Landlord on account of such net insurance proceeds.
9. DEFAULT BY TENANT - LANDLORD'S REMEDIES
(a) Upon the happening of any one or more of the following events,
Tenant shall be in default under the terms of this Lease:
(l) Tenant's failure to pay any installment of the 1 Monthly
Rental within three (3) days after the same becomes due and payable under this
Lease;
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(2) Tenant's failure to pay any Additional Rental within ten
(10) days after the same becomes due and payable under this lease.
(3) After the occurrence of the event described in
subparagraph a(l) or a(2) above twice in any twelve-month period, Tenant's
failure to pay any installment of Rent or any other sum due hereunder on or
before the date on which the same becomes due and payable;
(4) Tenant's failure to perform or observe some term or
condition of this Lease which, because of its character, would immediately
jeopardize Landlord's interest (such as, but without limitation, failure to
maintain insurance);
(5) Tenant's failure to perform or observe any other term or
condition contained in this Lease and Tenant's failure to commence within thirty
(30) days after notice from Landlord to Tenant thereof the curing of such term
or condition and Tenant's failure to promptly and diligently complete the curing
of same;
(6) The filing of a petition by or against Tenant for
adjudication as a debtor within the meaning of Chapter 7 or Chapter 13 or other
provisions of the Bankruptcy Act, as now or hereafter amended or supplemented,
or for reorganization or arrangement within the meaning of Chapter 11 of the
Bankruptcy Act, or the filing of any petition by or against Tenant under any
future bankruptcy act or insolvency law for the same or similar relief and the
failure to have such petition removed within thirty (30) days;
(7) The dissolution or liquidation, or the commencement of any
action or proceeding for the dissolution or liquidation, of Tenant, whether
instituted by or against Tenant or the appointment of a receiver or trustee, or
the commencement of any action or proceeding for the appointment of a receiver
or Trustee, of the property of Tenant;
(8) The taking possession of the property of Tenant by a
governmental officer or agency pursuant to statutory authority for the
dissolution, rehabilitation, reorganization or liquidation of Tenant;
(9) Tenant's making an assignment for the benefit of
creditors, whether voluntary or involuntary;
(10) Tenant's interest under this Lease being sold or taken
under execution or other legal process;
(11) Tenant's vacating or abandoning the Premises;
Notwithstanding anything contained herein, if the Lender grants Landlord a
longer grace period for any item described above except subparagraph (a)(l) and
(a)(2), then Tenant shall have the same grace period that is granted to
Landlord.
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(b) Upon Tenant's default or breach of the Lease as described in
subparagraph (a) above, Landlord, at its discretion, may then exercise any one
or more of the following options:
(1) Terminate this Lease, remove all persons and property from
the Premises by summary proceedings or otherwise, and take possession of the
Premises, all without prejudice to Landlord's right to collect from Tenant any
rent or other sum which became payable to Landlord prior to such termination,
together with all damages suffered by Landlord resulting from Tenant's default
hereunder;
(2) Landlord, as Tenant's agent, without termination of this
Lease, upon Tenant's default or breach of this Lease, as set forth in
subparagraph (a) above, may at Landlord's option, evidenced by written notice to
Tenant, terminate Tenant's right to possession and enter upon and rent the
Premises at the best price obtainable by reasonable effort, without
advertisement, and by private negotiations and for any term Landlord deems
proper. Tenant shall upon receipt of such notice surrender possession if the
Premises to Landlord and remove all of Tenant's property therefrom; and Landlord
may forthwith re-enter the Premises and repossess itself thereof; and remove all
persons and property therefrom, using such force as may be necessary without
being guilty of trespass, forcible entry or detainer or other tort. Tenant shall
be liable to Landlord for the deficiency, if any, between the amount of all Rent
reserved in this Lease and the net rent, if any, collected by Landlord in
reletting the Premises (the "Net Rent"), which deficiency shall be due and
payable by Tenant for the period in which Rent reserved in the Lease would have
been due and payable. Net Rent shall be computed by deducting from gross rents
collected all reasonable expenses and costs of whatever nature incurred by
Landlord in reletting, including, but not limited to attorneys' fees, broker's
commissions and the cost of renovating or remodeling the Premises.
(3) In the event Landlord elects to terminate this Lease as
hereinabove provided, Landlord may, in addition to any other remedies it may
have, recover from Tenant all damages Landlord may incur by reason of such
default, including the cost of recovering the Premises, reasonable attorneys'
fees, a pro rata portion of the Rent Credit described in Paragraph 3 and any
other cash concession (which shall be amortized over the Term of this Lease) and
including the worth at the time of such termination of the excess, if any, of
the amount of Rent reserved in this Lease for the remainder of the Term over the
then reasonable rental value of Premises for the remainder of the Term, all of
which amounts shall be immediately due and payable from Tenant to Landlord. The
term "reserved" as applied to Rent shall mean any and all payments to which
Landlord is entitled hereunder during the entire Term of this Lease.
(4) Landlord may declare the entire remaining unpaid Rent for
the Lease Year in which the default occurred and other charges due hereunder for
the Lease Year in which the default occurred to be immediately due and payable,
and take such action available to Landlord to recover and collect the same. On
the first day of each subsequent Lease Year, Landlord may declare the entire
remaining unpaid Rent for that Lease Year and other charges due hereunder for
that Lease Year to be immediately due and payable, and take such action
available to Landlord to recover and collect the same after Landlord uses
reasonable efforts to mitigate its damage.
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(5) Landlord may exercise any and all rights and privileges
and pursue any remedy that Landlord may have under the laws of the State of
Florida.
(c) Any installment of Rent herein required to be paid by Tenant
which is not paid when due, shall bear interest at the lower of (i) four percent
(4%) over the prime rate announced by Southeast Bank, N.A. as its prime lending
rate (but not necessarily the best or lowest rate charged borrowing customers of
Southeast Bank, N.A. at its principal office) as such rates change from time to
time or (ii) the maximum rate of interest permitted by applicable law, from the
due date until paid, as a late charge for the purpose of reimbursing Landlord
for expenses incurred by reason of such failure by Tenant and not as penalty
therefore. The interest so charged shall be collectible as Additional Rental.
(d) All of Landlord's rights and remedies after a default by Tenant,
whether expressly stated above or whether available at law or in equity, shall
be deemed separate and cumulative, and the exercise of any one right or the
pursuit of any one remedy shall not preclude Landlord from exercising any other
right or pursuing any other remedy.
(e) Landlord shall have, upon default in payment of Rent by Tenant,
a lien in the principal amount of Rent in default, upon the furniture,
machinery, equipment, fixtures and property usually kept on the Premises other
than such furniture, machinery, equipment, fixtures and property that is leased
from third parties and other than those items set forth in Exhibit K attached
hereto and incorporate herein by reference, regardless of whether Tenant or
another has possession of the property mentioned. If in accordance with the
provisions of this Lease, Tenant assigns or sublets all or any part of the
Premises, Landlord also shall have a lien for rent on the described property of
the assignee or sublessee.
(f) All agreements, covenants, conditions and provisions to be
performed or observed by Tenant under this Lease shall be at its sole cost and
expense and without any abatement of Rent. If Tenant shall fail to pay any sum
of money other than Rent, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder, Landlord may, but
shall not be obligated so to do, and without waiving or releasing Tenant from
any obligations of Tenant, make any such payment or make any such other act on
Tenant's part to be made or performed as this Lease provides. All sums so paid
by Landlord and all necessary incidental costs shall be deemed Additional Rental
hereunder and shall be payable to Landlord on demand, together with interest
thereon at the lower of (i) four percent (4%) over the prime rate announced by
Southeast Bank, N.A. as its prime commercial lending rate (but not necessarily
the best or lowest charged borrowing customers of Southeast Bank, N.A. as such
rates change from time to time or (ii) the maximum rate of interest permitted by
applicable law, from the date of expenditure by Landlord to the date of
repayment by Tenant, and Landlord shall have (in addition to any other right or
remedy of Landlord) the same rights and remedies in the event of nonpayment
thereof by Tenant as in the case of default by Tenant in the payment of Rent.
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l0. LANDLORD'S LIABILITY
The term "Landlord" as used in this Lease shall mean only the owner or
mortgagee in possession for the time being of the Premises so that in the event
of sale of said Premises or leasehold interest or an assignment of this Lease,
Landlord and all of the general partners and limited partners of Landlord shall
be and are hereby entirely freed and relieved of all obligations of Landlord
subsequently accruing. It is specifically understood and agreed that there shall
be no personal liability of Landlord or any of the general partners or limited
partners of Landlord in respect of any covenant, condition or provisions of this
Lease; in the event of a breach or default by Landlord or any of its obligations
under this Lease, Tenant shall look solely to the equity of the Landlord in the
Premises for the satisfaction of Tenant's remedies. Notwithstanding the
foregoing, Landlord shall have personal liability during the period of time that
the Building is being constructed (the "Construction Period). In addition,
Tenant shall have the right to xxx for specific performance and to xxx for
injunctive relief during the Term of this Lease; however, Landlord, its general
partners and limited partners have no personal liability for any monetary award
to Tenant or expend any money to comply with a judgment of specific performance
to Tenant during the term of this Lease except during the Construction Period.
11. ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord which
consent may be arbitrarily withheld, assign all of this Lease except in the case
of a merger by Tenant with another entity provided that the surviving entity has
a minimum net worth at least equal to the net worth of Anchor Glass Container
Corporation as of December 31, l987, as reflected in its Annual Report; however
Tenant may, without the prior written consent of Landlord, sublet the unoccupied
space within the Premises. Tenant shall submit to Landlord a written request for
the consent of the Landlord to the assignment which request shall be accompanied
by the name of the assignee, a copy of the fully executed assignment which
assignment shall be solely conditioned upon Landlord's consent thereof except as
provided above, a description of the nature and character of the business of the
proposed assignee, the proposed use of the Premises, current financial
information on the assignee, and such additional information as Landlord may
reasonably request. Consent by Landlord to one assignment shall not destroy or
waive this provision, ant all later assignments shall likewise be made only upon
the prior written consent of Landlord. Subtenants or Assignees shall become
liable directly to Landlord for all obligations of Tenant hereunder without
relieving Tenant of its liability under this Lease except in those cases in
which Landlord has given its prior written consent to the assignment. In the
event that Tenant merges with another entity that has a minimum net worth as
described herein, the surviving entity shall remain liable for the term of this
Lease. It is expressly understood and agreed to that Tenant may not merge with
another entity unless the surviving entity will have a minimum net worth at
least equal to Anchor Glass Container Corporation's net worth as of December 31,
1987, as reflected in its Annual Report.
Tenant agrees that the instrument by which any assignment consented to by
Landlord or subletting is accomplished shall expressly provide that the assignee
or subtenant will perform and observe all the agreements, covenants, conditions
and provisions to be performed and observed
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by Tenant under this Lease as and when performance and observance is due and
that Landlord will have the right to enforce such agreements, covenants,
conditions and provisions directly against such assignee or subtenant. Tenant
shall in all cases remain responsible for the performance by any subtenant of
all such agreements, covenants, conditions and provisions. Any assignment or
subletting without an instrument containing the foregoing provision shall be
void and shall, at the option of the Landlord, constitute a default that
entitles Landlord to terminate this Lease.
In the event Tenant notifies Landlord of Tenant's intent to assign this
Lease, and if Tenant provides Landlord with the required information as stated
above, Landlord shall within thirty (30) days from receipt of such notice (i)
consent to such proposed assignment, or (ii) refuse such consent, or (iii) elect
to cancel this Lease. In the event of Landlord's election to cancel this Lease,
Tenant shall have ten (10) days from receipt of such notice in which to notify
Landlord of Tenant's acceptance of such cancellation or Tenant's desire to
remain in possession of the Premises under the terms and conditions and for the
remainder of the Term of this Lease. In the event Tenant fails to so notify
Landlord of Tenant's election to accept termination or to continue as Tenant
hereunder. such failure shall be deemed an election to terminate and such
termination shall be effective as of the end of the ten (10) days from the date
of Landlord's notice. In the event this Lease is either cancelled or an
assignment or sublease is made as herein provided, Tenant shall reimburse
Landlord for all of the necessary legal and accounting services required in
order to accomplish such cancellation or assignment.
The following are additional conditions and restrictions upon assignment
or subletting by Tenant:
(i) Tenant shall have no right to assign this Lease or sublet the
whole or any part of the Premises to any party who is dealing with or has dealt
with Landlord or Landlord's agents with respect to space available for rent in
the Development within six (6) months immediately preceding Tenant's notice.
(ii) Any sublease shall be expressly subject and subordinate to all
of the terms and provisions of this Lease;
(iii) Tenant agrees not to list or otherwise publicly advertise the
Premises for assignment or subletting at a rental rate less than (a) the rate of
the monthly rent then payable hereunder for the Premises or (b) the rate at
which Landlord is then offering comparable space in the Development (and
Landlord agrees, upon written request from Tenant, to advise Tenant of such
rate), whichever is higher; and
(iv) Tenant agrees not to offer to assign nor sublet to a party
which is already a tenant in the Development or to a subsidiary, an affiliate,
or a parent of a tenant in the Development.
(v) If Tenant shall assign all or a portion of the Premises for a
rental in excess of the total Rent stipulated herein, which is or may become due
and owing, then Tenant shall pay to Landlord as Additional Rental all of such
excess amount after deducting Tenant's reasonable out-of-pocket expenses paid to
third parties which expenses were incurred directly with the
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negotiation or execution of this assignment. In addition, Tenant shall also pay
to Landlord, as Additional Rental, all other profit, gain, or consideration
realized by Tenant in connection with the assignment after deducting Tenant's
reasonable out-of-pocket expenses paid to third parties which expenses were
incurred directly with the negotiation or execution of this Assignment or
Sublease.
(vi) Such subletting or assignment shall not cause Landlord any
cost, and if Landlord incurs any cost whatsoever, then Tenant agrees to pay the
same as Additional Rental.
(vii) With respect to subletting less than all the Premises, Tenant
at its sole cost and expense, shall provide and permit reasonable means of
ingress to and egress from the space sublet by Tenant.
If Landlord terminates this Lease as set forth herein, Landlord may, if it
elects, enter into a new lease covering the Premises with the intended assignee
on such terms and conditions as Landlord and such person may agree, or enter
into a new lease covering the Premises, with any other person; in such event,
Tenant shall not be entitled to any portion of the profit, if any, which
Landlord may realize on account of such termination and reletting, nor shall
Tenant be entitled to a finder's fee, broker's commission, or any such other
fee. From and after the date of such termination of this Lease, Tenant shall
have no further obligation to Landlord hereunder with respect to these Premises,
except for matters occurring or obligations arising hereunder prior to the date
of such termination.
If Tenant's interest in this Lease is assigned or if the Premises or any
part thereof are subject to, or occupied by, or used by, any one other than
Tenant, Landlord may, after default by Tenant, accept from any assignee,
sublessee or any one who claims a right to the interest of Tenant under this
Lease or who occupies any part or the whole of the Premises the payment of Rent
and/or the performance of any of the other obligations of Tenant under this
Lease, but such acceptance shall not be deemed to be a waiver by Landlord of the
breach by Tenant of the provisions of this Paragraph 11, nor a recognition by
Landlord that any such assignee, sublessee, claimant or occupant has succeeded
to the rights of Tenant hereunder, nor a release by Landlord of Tenant from
further performance by Tenant of the covenants on Tenant's part to be performed
under this Lease except as otherwise provided herein; provided, however, that
the net amount of rent collected from any such assignee, sublessee, claimant or
occupant shall be applied by Landlord to the Rent to be paid hereunder.
12. CONDEMNATION
If the temporary use of the whole or any part of the Premises shall be
taken at any time during the Term for any public or quasi-public purpose by any
lawful power or authority or by the exercise of the right of condemnation or
eminent domain or by agreement in lieu of condemnation between those authorized
to exercise such right, the Terms of the Lease shall not be affected in any way
and Tenant shall continue to pay Rent and Additional Rent hereunder and be
subject to the other provisions of this Paragraph and, except as hereinafter
provided, Tenant shall be entitled to receive any award or payment for such
temporary use during the Term but not after the Term, provided that the lender
who is financing the improvements (the "Lender") does not require that such
award or payment be applied to reduce the Lender's loan provided in this
paragraph. If such taking results in
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changes or alterations in the Premises which would necessitate an expenditure,
after repossession, to repair the Premises to their former condition and such
award or payment includes an amount to compensate for such expenditure and is
made prior to the expiration of this Lease, then the amount of such award or
payment specified as compensation for the expenses of such repair shall be
applied towards such repair, provided that (a) there is not then in existence a
default under this Lease, (b) Tenant shall deposit with Landlord or the Lender,
prior to the commencement of any such repair, an amount equal to the difference
between the cost to repair the Premises and the net proceeds from the
condemnation, and (c) Landlord has approved Tenant's detailed plans and
specifications (including layout, architectural, mechanical and structural
drawings) for restoring the Premises, and (d) Landlord has approved Tenant's
contractors, subcontractors, employees, mechanics and laborers who will be
restoring the Premises, and (e) the Lender does not require that such award or
payment be applied to reduce the outstanding balance of the Lender's loan.
If the whole of the Premises shall be condemned, or purchased in lieu of
condemnation, by any competent authority, for any public purpose, then, the Term
of this Lease shall cease and terminate from the time when the possession shall
be required for such use or purpose and the Rent including unearned prepaid
rent, if any, shall be apportioned accordingly.
(a) If any part of the Premises shall be taken or condemned or
purchased in lieu thereof by any competent authority for any public purpose,
provided the balance of the Premises remaining cannot be effectively utilized by
Tenant for office space even if the condemnation proceeds are used to restore or
repair the Premises, then Tenant shall have the option to cancel this Lease
(effective as of the time that possession shall be required for such public use
or purpose) by Tenant, giving Landlord written notice within twenty (20) days
after receipt of notice of the condemnation from Landlord or from the
governmental authorities, whichever occurs first, or in the absence of such
notice, within a reasonable time after the taking occurs. If Tenant is entitled
to exercise said option to terminate and does so, all rents shall be prorated to
the date Tenant is required to give up possession. In the event Tenant is not
entitled to cancel the Lease, or if it is entitled to do so but does not
exercise its option, Landlord shall make the net proceeds from the condemnation
available to Tenant for repair and restoration of the Premises, provided that
(a) there is not then in existence a default under this Lease, and (b) Tenant
shall deposit with Landlord or the Lender, prior to the commencement of any such
repair and restoration, an amount equal to the difference between the cost to
repair and/or restore the Premises and the net proceeds from the condemnation
and (c) Landlord has approved Tenant's detailed Plans and Specifications
(including layout, architectural, mechanical and structural drawings) for
restoring the Premises, and (d) Landlord has approved Tenant's contractors,
subcontractors, employees, mechanics and laborers who will be restoring the
Premises, and (e) the condemnation award is not used to acquire or construct
replacement parking as described below, and (f) the condemnation award is less
than fifty percent (50%) of the replacement costs of the improvements located on
the Premises, and (g) Lender does not require that such condemnation award or
payment be applied to reduce the outstanding balance of the Lender's loan.
Tenant shall be able to terminate this Lease if Tenant does not receive the
condemnation proceeds provided that (a) there is not then an existence of
default under this Lease, and (b) Tenant is willing to deposit with Landlord or
the Lender prior to the commencement of any such repair or restoration an amount
equal to the difference between the cost to repair and/or restore the Premises
and the net proceeds from the condemnation and (c) Landlord has approved
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Tenant's detailed Plans and Specifications for repairing and restoring the
Premises and (d) Landlord has approved Tenant's contractors, subcontractors,
employees, mechanics and laborers who will be repairing or restoring the
Premises and (e) the condemnation award is not used to acquire or construct
replacement parking as described below. In the event the Lease is not cancelled,
Tenant will be responsible for the Rent as heretofore set forth to the date of
such taking or purchase; after which date the Rent herein reserved shall be
reduced proportionately as the usable floor area of the remaining leased space
in the Building compares to the usable floor area of the leased space in the
Building before such taking or purchase. Notwithstanding the foregoing, the
parties agree that in the event the parking spaces located on the Premises are
taken by condemnation or purchase in lieu of condemnation, then Landlord shall
be entitled to the condemnation award for the parking spaces taken. Landlord
shall exercise its rights to purchase an easement for parking spaces under the
Option Agreement for Parking Easement described in Exhibit N within three (3)
months of the condemnation or purchase in lieu of condemnation. Landlord shall
provide replacement grade surface parking spaces or such other form of parking
as agreed to by Landlord and Tenant on the northern portion of the property that
is contiguous to the south boundary of the Building and if Landlord promptly
commences to provide such replacement parking and completes such replacement
parking within 180 days after receiving the proceeds that it is entitled to
receive from the competent authority, then Tenant shall not have the right to
cancel this Lease and the Rent shall not be reduced. Landlord covenants and
agrees that it will provide replacement grade surface parking or such other form
of parking as agreed to by Landlord and Tenant in a customary and usual
configuration which replacement parking shall be as convenient to the Building
as the existing parking that was taken by the condemnation or purchase in lieu
of condemnation. Landlord further covenants and agrees that the replacement
grade surface parking spaces or such other form of parking as agreed to by
Landlord and Tenant shall be of equal size, quality and workmanship as the
parking spaces that were taken by virtue of the condemnation or purchase in lieu
of condemnation. Landlord will replace such parking spaces that were taken in
the condemnation or purchase in lieu of condemnation at the rate of one parking
space for each parking space that is lost in the taking. For example, in the
event forty parking spaces were lost in the taking, then Landlord shall furnish
forty replacement parking spaces to Tenant. Landlord and Tenant agree that the
cost of providing replacement parking spaces shall be paid for as follows:
Landlord shall first use the condemnation proceeds allocated for the parking
spaces which were taken in the condemnation to purchase and construct the
replacement parking spaces. In the event that the condemnation proceeds are not
sufficient to cover the cost of acquiring the land and constructing replacement
grade surface parking spaces or such other form of parking as is agreed to by
Landlord and Tenant, then Landlord will pay the excess cost.
(b) Landlord agrees to notify Tenant of the pendency of any
condemnation proceeding that Landlord is aware of. Tenant shall have the right
to be present in any negotiations and proceedings concerning proposed
condemnation or purchase in lieu of condemnation. Landlord agrees to consult
with Tenant and Tenant's attorneys and experts and cooperate with them in
formulating a defense of such condemnation or purchase in lieu of condemnation.
(c) Landlord and Tenant hereby agree that any award or proceeds
resulting from a condemnation or purchase in lieu thereof of the whole or part
of the Premises shall belong solely to Landlord, and Tenant hereby waives any
right to make any claim therefor as the result of this
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Lease; provided, however, that Tenant shall not be prevented from pursuing any
claim that Tenant has under the laws of the State of Florida against the
condemning authority, so long as such claim will not diminish Landlord's award.
13. INSPECTIONS AND ACCESS TO PREMISES
Tenant is hereby given the right to inspect the Premises during the
construction of the improvements if Tenant gives reasonable notice to Landlord
provided that Tenant and its agents do not interfere with any contractor,
subcontractor, mechanic, laborer, materialman or any other person who is
performing any work, labor or services on the Premises during said construction
period provided that Tenant's mere inspection shall not be deemed acceptance of
the Premises. Tenant hereby releases Landlord and its agent and agrees to
indemnify and save Landlord and its agents harmless from and against any and all
claims, liabilities, damages, suits and expenses of all kinds or nature,
including reasonable attorney's fees and disbursements, which may be imposed
upon or incurred by or served against Landlord by reason of an injury to Tenant
or any agent of Tenant who is inspecting the improvements during the
construction period.
Landlord or Landlord's agents shall have the right to enter the Premises
and all improvements located thereon at all reasonable times subsequent to
reasonable notice to Tenant except in the case of an emergency in which case no
notice is required, to examine the Premises and all improvements located thereon
to determine whether Tenant has complied with the Standard of Maintenance for
the Building described in Exhibit J, to survey the Premises and all improvements
located thereon, to show to prospective purchasers, mortgagees or lessees of the
Premises, and to make such decoration, repairs, alterations, improvements or
additions as Landlord may deem necessary or desirable to the Premises or to any
part thereof or which Landlord may elect to perform following Tenant's failure
to make repairs or perform any work which Tenant is obligated to perform under
this Lease, or for the purpose of complying with laws, regulations or other
requirements of governmental authorities. Landlord shall be allowed to take all
material into and upon the Premises that may be required in connection with said
activity without the same constituting an eviction or constructive eviction of
Tenant in whole or in part and the Rent shall not xxxxx while said activity is
being conducted, by reason of loss or interruption of the business of Tenant, or
otherwise. Nothing herein contained, however, shall be deemed or construed to
impose upon Landlord any obligation, responsibility or liability whatsoever, for
the care, supervision or repair of the Premises or any part thereof, other than
as herein provided.
14. SUBORDINATION AND LEASE AMENDMENT
This Lease shall be subject and subordinate to any mortgages which may now
or hereafter affect this Lease or the Premises and to all renewals, extensions,
supplements, amendments, modifications, consolidations and/or replacement of the
mortgages provided that Tenant is given the right of nondisturbance of all
rights and interest in the Lease as long as Tenant is not in default of the
Lease. Landlord and Tenant covenant and agree that they will use their best
efforts to have any lender who has a loan on the Property that is superior to
Tenant's interest under this Lease execute a subordination and nondisturbance
agreement substantially in the form set forth in Exhibit L attached hereto and
incorporated herein by reference. The subordination clause shall be
self-operative and no further instrument of subordination shall be required to
make the interest of any mortgagee
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of any mortgage superior to the interest of Tenant hereunder. However, in
confirmation of the subordination set forth in this Paragraph 14, Tenant shall,
at Landlord's request, execute and deliver such further instruments as may be
desired by any holder of a mortgage and this shall be a default of this Lease if
Tenant is unable to provide such certificate or certificates within ten (10)
days of Landlord's written request. In the event Landlord's mortgagee shall
reasonably require any changes in or additions to this Lease, Tenant hereby
agrees to amend this Lease to effect such changes or additions and Landlord
shall bear the full expense of the preparation and recording of the necessary
written instruments; provided, however, nothing in this Paragraph 14 shall
obligate Tenant to agree to any change in the amount of Rent required of Tenant
hereunder, or to any change in the term of this Lease.
At any time and from time to time but on not less than ten (10) days prior
written request by Landlord, Tenant will execute, acknowledge and deliver to
Landlord, promptly upon request, an estoppel certificate certifying:
(a) That this Lease is unmodified and in full force and effect (or,
if there have been modifications, that this Lease is in full force and effect as
modified, and stating the date and nature of each modification);
(b) The date, if any, to which rent and other sums payable hereunder
have been paid, and the amount of security deposit and prepaid rent, if any;
(c) That no notice has been received by Tenant of any default which
has not been cured except as to default specified in such certificate;
(d) That Landlord is not in default hereunder, except as to default
specified in such certificate, nor is there now any fact or condition which,
with notice or lapse of time or both, will become a default;
(e) Such other estoppel matters as may be reasonably requested by
Landlord or any actual or prospective purchaser or mortgage lender. Any such
certificate may be relied upon by any actual or prospective purchaser, mortgagee
or beneficiary under any deed or mortgage of the Premises or any part thereof;
Landlord agrees that Tenant may rely on a notice sent by Landlord
indicating that there is a new owner of the premises, Tenant agrees, at the
election and upon written demand of any owner of the Premises or the Building,
or of any mortgagee in possession of the Premises or the Building, to attorn,
from time to time, to any such owner 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, lessor 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 Premises and agrees to grant Tenant the right of
nondisturbance as long as Tenant is not in default of the Lease. The provisions
of this subparagraph shall inure to the benefit of any such owner or 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 any such owner or mortgagee, agrees to execute, from time to time,
instruments in confirmation of the foregoing provisions of this subparagraph,
satisfactory to
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any such owner or mortgagee, acknowledging such attornment and setting forth the
terms and conditions of its tenancy. Nothing contained in this subparagraph
shall be construed to impair any right otherwise exercisable by any such owner
or mortgagee.
Landlord agrees that it will consult with Tenant in negotiating any
renewal, extension, supplement, amendment, modification, consolidation and/or
replacement of the existing mortgage if the Tenant's rent would increase as a
result of said renewal, extension, supplement, amendment, modification,
consolidation and/or replacement of the mortgage.
15. INDEMNITY
Tenant covenants and agrees to indemnify and save Landlord and its agents
harmless from and against any and all claims, liabilities, fines, damages,
penalties, suits, and expenses of all kinds or nature, including reasonable
attorneys' fees and disbursements, which may be imposed upon or incurred by or
asserted against Landlord by reason of or arising out of any damages or injuries
to goods, wares, merchandise and property, any work done in or about the
Premises or the improvements on the Premises by Tenant, or its agents,
licensees, invitees, or employees, or any negligence by tenant or its agents,
licensees, invitees, or employees, or any breach by Tenant of the terms and
conditions of this Lease, or any personal injury or loss of life in, upon, or
about the Premises, the improvements on the Premises or any part thereof,
including, but not limited to any Common Areas or parking lots used by the
occupants of the Premises arising for any reason whatsoever during the term of
this Lease by virtue of an act of Tenant, its agents, invitees, licensees, or
employees, except such as may be the result of the gross negligence or willful
default of Landlord, its agents, employees or contractors. The provisions of
this Paragraph 15 shall survive the termination of this Lease with respect to
any damages, death or injury occurring prior to termination.
16. TENANT'S INSURANCE
The Tenant covenants to provide on or before the Commencement Date and
keep in force during the Term of this Lease, a comprehensive general liability
insurance policy insuring the Landlord and Tenant against bodily injury,
property damage and personal injury. This policy shall be in the amount of Six
Million Dollars ($6,000,000) with respect to bodily injury and property damage.
The policies shall be written by a good and solvent insurance company qualified
to do business in the State of Florida and approved by Landlord and shall
include the Landlord as an additional named insured. Landlord agrees that it
will approve an insurance company that has a rating of A-, A, or A+ by A. M.
Best. A Certificate of Insurance complying with the requirements set forth above
shall be delivered to Landlord prior to the Commencement Date. Tenant shall also
deliver to Landlord upon, Landlord's written request, evidence of payment for
said insurance and all renewals thereto. Tenant shall renew said 25 policy prior
to the expiration date thereof from time to time, and furnish said renewals to
Landlord. Such policy and certificate of insurance shall contain an endorsement
that the insurer will not cancel or terminate or materially change the policy
without first giving Landlord thirty (30) days written notice.
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Tenant shall keep the Building and all other improvements on the Premises
insured against loss by fire, lightning and other risks which at the time are
included under "extended coverage" endorsements and flood insurance if the
Premises is located in a flood zone or if required by Lender or not less than
the full replacement cost thereof as determined by Landlord. Such policy(ies)
shall include Landlord as an additional named insured and additional loss payee.
Tenant shall further deposit a certificate of insurance complying with the
requirements of this Paragraph, together with satisfactory evidence of the
payment of the required premium or premiums thereof with Landlord at or prior to
the date Tenant commences occupancy of the Premises. All policies shall be
written by a good and solvent insurance company qualified to do business in the
State of Florida and approved by Landlord. Landlord agrees that it will approve
an insurance company that has a rating of A-, A or A+ by A. M. Best. All
policies of insurance to be carried by Tenant and the certificate of insurance
shall contain an endorsement that the policies shall not be subject to
cancellation, termination or material change except after thirty (30) days prior
written notice to Landlord, and shall name any other person that Landlord
requests as the insured as their interest may appear. Tenant shall renew said
policies prior to the expiration date thereof from time to time, and furnish
said renewals to Landlord. The proceeds of any insurance shall be applied in
accordance with the terms of Paragraph 8 of this Lease to either (a) the
replacement, restoration or repair of the damaged improvements located on the
Premises; or (b) to Landlord to compensate Landlord for its loss.
Notwithstanding anything contained herein, if the Lender's insurance
requirements, including but not limited to evidence of payment of premiums,
amount of insurance and type of insurance are different, then Lender's
requirements shall be substituted in this paragraph with the exception that
Landlord shall also be named as an additional payee, or additional insured as
the case may be.
17. REMEDIES CUMULATIVE
The rights given to Landlord herein are in addition to any rights that may
be given to Landlord by a statute or under law.
18. HOLDING OVER
Tenant acknowledges that possession of the Premises must be surrendered to
Landlord at the expiration or sooner termination of the Term of this Lease.
Tenant agrees to indemnify and save Landlord harmless against all costs, claims,
loss or liability resulting from delay by Tenant in so surrendering the Premises
in the condition set forth in Paragraph 7(c) of this Lease, including without
limitation, any claims made by a succeeding tenant founded on such delay. The
parties recognize and agree that the damage to Landlord resulting from any
failure by Tenant to timely surrender possession of the Premises as aforesaid
will be extremely substantial, will exceed the amount of the Monthly Rental and
Additional Rental theretofore payable hereunder, and will be impossible to
accurately measure. Tenant therefore agrees that if possession of the Premises
is not surrendered to Landlord within 24 hours after the date of the expiration
or sooner termination of the Term of this Lease, then Tenant shall pay to
Landlord for each month and for each portion of any month during which Tenant
holds over in the Premises after the expiration or sooner termination of the
Term of this Lease, without the express written consent and approval of
Landlord, a sum equal to two times the aggregate of that portion of the Monthly
Rental and Additional Rental which was payable under this Lease during the last
month of the Term hereof. It is expressly understood and agreed to by the
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parties that Tenant will not be deemed in possession of the Premises solely as a
result of Tenant removing its personal property or repairing all injury done in
connection with installation or removal of said property within seven (7) days
after the last day of the term of this Lease. Nothing herein contained shall be
deemed to permit Tenant to retain possession of the Premises after the
expiration or sooner termination of the Term of this Lease. The aforesaid
provision of this Article shall survive the expiration or sooner termination the
term of this Lease.
19. ENTIRE AGREEMENT - NO WAIVER
This Lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein, shall be of any force or effect. The failure of
either party to insist in any instance on strict performance of any covenant or
condition hereof, or to exercise any option herein contained, shall not be
construed as a waiver of such covenant, condition or option in any other
instance. This Lease cannot be changed or terminated orally but only by an
agreement in writing signed by both parties hereto.
20. WAIVER OF JURY TRIAL
Landlord and Tenant each hereby waives all right to trial by jury in any
claim, action, proceeding or counterclaim by either party against the other on
any matters arising out of or in any way connected with the Lease, the
relationship of Landlord and Tenant and/or Tenant's use of occupancy of the
Premises.
21. HEADINGS
The headings in this Lease are included for convenience only and shall not
be taken into consideration in any construction or interpretation of this Lease
or any of its provisions.
22. NOTICES
(a) Any notice by either party to the other shall be valid only if
in writing and shall be deemed to be duly given only if delivered personally or
sent by courier service, by overnight delivery service, or by registered or
certified, postage prepaid, mail addressed to the following addresses:
To Tenant: Anchor Glass Container Corporation
One Anchor Place
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Xx. Xxxxxxx X. Xxxxxxx
Chairman, Chief Executive
Officer and President
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With a copy to: Holland and Knight
X.X. Xxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esquire
To Landlord: Fountain Associates I, Ltd.
c/x Xxxxxx Management Company
0000 Xxxxxxxx Xxxxxxxx Xxxxxxxx
Xxxxx, Xxxxxxx 00000
With a copy to: Annis, Mitchell, Xxxxxx, Xxxxxxx &
Roehn, P.A.
Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Or at such other address for either party as that party may designate by notice
to the other; notice shall be deemed given, if delivered personally, upon
delivery thereof, or if sent by courier service, overnight delivery service or
if mailed, upon the posting thereof.
(b) Tenant hereby appoints as its agent to receive service of all
dispossessory or distraint proceedings, the person in charge of Premises at the
time of occupying Premises; and if there is no person occupying same, then such
service may be made by attachment thereof on the main entrance of the Premises
or at the maintenance of the Building.
23. HEIRS AND ASSIGNS - PARTIES
(a) The provisions of this Lease shall bind and inure to the benefit
of the Landlord and Tenant, and their respective successors, heirs, legal
representatives, and assigns, it being understood that the term "Landlord" as
used in this Lease, means only the owner or the lessee for the time being of the
Premises, so that in the event of any sale or sales of said property or of any
lease thereof, the Landlord and the general partners and limited partners of
Landlord named herein shall be and hereby are entirely freed and relieved of all
covenants and obligations of Landlord hereunder accruing thereafter, and it
shall be deemed without further agreement that the purchaser, or the lessee, as
the case may be, has assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder during the period such party has possession of
the Premises. Tenant shall be bound to any such succeeding party Landlord for
performance by Tenant of all the terms, covenants, and conditions of this Lease
and agrees to execute any attornment agreement not in conflict with the terms
and provisions of this Lease at the request of any such succeeding Landlord.
Landlord covenants and agrees that it will not sell the Premises or assign the
Lease (other than an assignment to the lender who is providing construction
financing) before Landlord's work as described in Exhibit D and Exhibit E of the
Lease is substantially completed.
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(b) The parties "Landlord", and "Tenant", and pronouns relating
thereto, as used herein, shall include male, female, singular and plural,
corporation, partnership or individual, as may fit the particular parties.
24. ATTORNEY'S FEES
If any Rent owing under this Lease is collected by or through an attorney
at law, Tenant shall pay as Additional Rental all reasonable attorneys' fees
incurred by Landlord as a result of any breach or default by Tenant under this
Lease.
25. TIME OF ESSENCE
Time is of the essence of this Lease.
26. BUILDING SPECIFICATIONS
Landlord at its sole cost and expense will design and construct the
Building in substantial accordance with the specifications described in Exhibit
D annexed hereto and made a part hereof. Any additions, changes or upgrades to
these specifications requiring payment will be paid for by Tenant within five
(5) days after Landlord submits a xxxx to Tenant for the additions, changes or
upgrades. Landlord shall also construct between four hundred fifteen (415) and
four hundred twenty three (23) surface grade parking spaces adjacent to the
Building for the purpose of accommodating Tenant, Tenant's invitees and
employees.
27. STANDARD TENANT ALLOWANCE
Landlord at its sole cost and expense will design and install the items
specified in Exhibit E attached hereto and incorporated herein by reference
which are worth approximately Nine Hundred Twelve Thousand and No/100 Dollars
($912,000.00). Tenant will receive a credit for those items listed on Exhibit E
that it does not use (the "Tenant Credit"). The Tenant Credit may be used by
Tenant to select other items to be installed in the Building or Tenant at
Tenant's option may receive a payment for the unused Tenant Credit provided that
this is permitted by the Lender.
28. ARBITRATION
In the event both parties agree, all claims and disputes arising out of
this Lease or the breach thereof shall be decided by arbitration in accordance
with the rules of the American Arbitration Association then existing unless the
parties mutually agree otherwise.
29. RULES AND REGULATIONS
Tenant shall observe and comply with such reasonable rules and regulations
as Landlord may prescribe upon written notice to Tenant for the safety, care and
cleanliness of the Building and Premises, and the comfort, quiet enjoyment and
convenience of other occupants of the Development.
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30. BROKER AND INDEMNITY
Tenant and Landlord each warrant and represent to the other party that it
has negotiated this Lease directly with the other party and has not authorized
or employed, or acted by implication to authorize or to employ, any real estate
broker or salesman to act for it in connection with this Lease. Tenant shall
hold Landlord harmless from and indemnify and defend Landlord against any and
all claims by any real estate broker or salesman, other than brokers dealt with
by Landlord, if any, and Landlord shall hold Tenant harmless from and indemnify
and defend Tenant against any and all claims by any real estate broker,
salesman, other than brokers dealt with by Tenant, for a commission or finder's
fee as a result of Tenant and Landlord entering into this Lease.
31. SPACE PLANNING
Landlord will provide basic space planning services which include
engineering and construction drawings for Building Standard Tenant Fitup
Requirements. If space programming and high finish design services are required,
Landlord will arrange for such services to Tenant at Tenant's expense. Tenant
shall pay for such services within (5) days after Landlord submits a xxxx to
Tenant for such services.
32. IDENTIFICATION OF BUILDING. ROAD AND PROJECT
The Building shall be the corporate headquarters of Tenant. Tenant shall
identify the Building as Anchor Place at Fountain Square or a name similar
thereto approved by Lender using the "Anchor" name by installing appropriate
signs on the Premises. In the event that Tenant merges with another entity, then
Tenant can change the name of the Building. The location and design of the signs
must be approved by Landlord prior to the installation of the signs. Landlord
will use the name of Anchor Place at Fountain Square or such other name after a
merger by Tenant that Tenant reasonably requests when referring to the Building.
Landlord will use its best efforts to name the road located in the Development
which connects Memorial Highway with Independence Parkway with a name that
includes the word "Anchor". Landlord shall cause the Developer of the Project to
not change the name of the Project now known as Fountain Square nor to rename
the Project after another tenant or any other person or entity as long as Tenant
occupies substantially all of the Premises.
33. QUIET ENJOYMENT
Provided Tenant has performed all of the terms, covenants, agreements and
conditions of this Lease, including the payment of Rent and all other sums due
hereunder, Tenant shall peaceably and quietly hold and enjoy the Premises
against Landlord and all persons claiming, by through or under Landlord, for the
term herein described, subject to the provisions and conditions of this lease.
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34. FORCE MAJEURE
This Lease and the obligation of Tenant to pay Rent hereunder and perform
all of the other covenants and agreements hereunder on the part of Tenant to be
performed shall not be affected, impaired or excused because Landlord is unable
to fulfill any of its obligations under this Lease expressly or impliedly to be
performed by Landlord or if Landlord is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reason of catastrophic events, casualties and/or acts of God. Whenever
a period of time is herein prescribed for action to be taken by Landlord, there
shall be excluded from the computation for any such period of time, any delays
due in part or in whole by any of the aforementioned reasons.
35. RELATIONSHIP OF THE PARTIES
Nothing contained herein shall be deemed or construed by the parties
hereto, nor any third party, as creating the relationship of principal and agent
or of partnership or of joint venture between the parties hereto, it being
understood and agreed that neither the method of computation of rent, nor any
other provision contained herein, nor any acts of the parties herein, shall be
deemed to create any relationship between the parties hereto other than the
relationship of landlord and tenant.
36. CORPORATE TENANT
Each person executing this Lease on behalf of Tenant does hereby covenant
and warrant that (i) Tenant is duly incorporated and validly existing on the
laws of its state of incorporation, (ii) Tenant has and is qualified to do
business in Florida, (iii) Tenant has full corporate right and authority to
enter into this Lease and to perform all Tenant's obligations hereunder, and
(iv) each person (and both of the persons if more than one signs) signing this
Lease on behalf of the corporation is duly and validly authorized to do so.
37. MISCELLANEOUS
The following exhibits will also need to be executed simultaneously with
the execution of this Lease:
(a) Exhibit M: Land Option Agreement
Exhibit N: Option Agreement for Parking Easement
Exhibit O: Memorandum of Lease
Exhibit P: Collateral Assignment of Option Agreement for Parking
Easement
38. SURVEY AND TITLE INSURANCE
Contemporaneously with the execution of this Lease, Landlord will deliver
to Tenant a leasehold title insurance commitment for the Premises and a survey
of the Premises. The cost of the leasehold title insurance policy issued
pursuant to the terms of the aforedescribed title insurance commitment shall be
paid for by Tenant.
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39. SAVING PROVISION
If any provision of this Lease, or its application to any situation shall
be invalid or unenforceable to any extent, the remainder of this Lease, or the
application thereof to situations other than that as to which it is invalid or
unenforceable, shall not be affected thereby, and every provision of this Lease
shall be valid and enforceable to the fullest extent permitted by law.
40. EFFECTIVENESS OF LEASE
This Lease shall have no binding force or effect and shall neither confer
any rights nor impose any obligations, including brokerage obligations, on
either Landlord or Tenant unless and until both Landlord and Tenant shall
execute this Lease and executed counterparts of this Lease shall have been
delivered to both Landlord and Tenant.
41. LIMITED PARTNERSHIP LANDLORD
Each person executing this Lease on behalf of Landlord does hereby
covenant and warrant that (i) Landlord is duly organized and validly existing
under the laws of the State of Florida; (ii) Landlord has and is qualified to do
business in Florida; (iii) Landlord has full right and authority to enter into
this Lease and to perform all of Landlord's obligations hereunder; and (iv) each
person (and both of the persons if more than one signs) signing this Lease on
behalf of the limited partnership is duly and validly authorized to do so.
42. ASSIGNMENT OF VOTING RIGHTS
In consideration of the execution of this Lease for the Premises, Landlord
does hereby assign to Tenant all of its right in the Class A voting membership
in Fountain Square Property Owners Association, Inc. received by virtue of
Landlord's ownership in the Premises so long as Tenant is not in default of this
Lease. Notwithstanding the foregoing, it is expressly understood and agreed to
that the voting membership has or will be collaterally assigned to any Lender
that is providing financing for the improvements located on the Premises.
Fountain hereby covenants and agrees that this Assignment of voting right is
subordinate, subject and inferior to the rights of any Lender to exercise the
right to vote on any Fountain Square Property Owners Association, Inc. matter in
the event there is a default under the collateral assignment of voting rights
given to Lender with respect to the Premises.
43. DEFAULT BY LANDLORD
If Landlord files a voluntary petition in bankruptcy for adjudication as a
bankrupt or insolvent or Landlord files a petition or answer seeking or
acquiescing to any reorganization arrangement,
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composition, readjustment, or similar relief under any law or regulation
relating to bankruptcy, insolvency or other relief for debtors.
IN WITNESS WHEREOF. the parties have hereunto set their hands and seals.
as of the day and year first above written.
Signed, sealed and delivered TENANT:
in the presence of:
ANCHOR GLASS CONTAINER
CORPORATION
____________________________
Witness as to Tenant
By: /s/ X.X. Xxxxxxx
____________________________ ____________________________
Witness as to Tenant
Vice President
Its:________________________
LANDLORD:
FOUNTAIN ASSOCIATES I, LTD.,
a Florida limited partnership
____________________________ By: TWC SIXTY, INC., its
Witness as to Landlord General Partner
By: /s/ Xxxx Xxxxxx
____________________________ ____________________________
Witness as to Landlord
004-20-1088-164 President
Its:________________________
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