AGREEMENT OF LEASE BY AND BETWEEN
XXXXXXX X. XXXXXXX, AS LANDLORD, AND
XXXXXXXX'X, INC. OF FLORIDA, AS TENANT
Table of Contents
Page
1. Reference Data and Definitions..................................... 1
2. Demise, Use, Rent and Term......................................... 2
3. Commencement of Term............................................... 3
4. Holding Over....................................................... 3
5. Improvements....................................................... 4
6. Real Estate Taxes.................................................. 6
7. Lease Tax.......................................................... 7
8. Tenant Utilities................................................... 8
9. Payment of Rent; Interest.......................................... 8
10. Quiet Enjoyment.................................................... 10
11. Signage............................................................ 10
12. Use................................................................ 10
13. Assignment and Subletting.......................................... 10
14. Fire or Other Casualty............................................. 11
15. Landlord's Right to Enter.......................................... 15
16. Insurance.......................................................... 16
17. Representations and Warranties of Landlord......................... 19
18. Representations and Warranties of Tenant........................... 23
19. Repairs and Condition of Premises.................................. 25
20. Compliance with Law................................................ 27
21. Mechanics' Liens................................................... 28
22. Recordation of Memorandum of Lease................................. 28
23. Default/Remedies of Landlord....................................... 29
24. Default/Remedies of Tenant......................................... 32
25. Remedies Cumulative................................................ 33
26. Excepted from Premises............................................. 33
27. Lease Subordinated................................................. 33
28. Paramount Lease.................................................... 35
29. Condemnation....................................................... 36
30. Notices............................................................ 37
31. Definitions........................................................ 38
32. Estoppel Certificate............................................... 40
33. Brokers............................................................ 41
34. Whole Agreement.................................................... 42
35. Security Interest.................................................. 42
36. Extension Option................................................... 43
37. WAIVER OF JURY TRIAL............................................... 43
38. Miscellaneous...................................................... 44
Exhibits
EXHIBIT A - The Leased Premises.............................................
i
AGREEMENT OF LEASE
AGREEMENT (hereinafter referred to as "the Lease"), made and
effective the 15th day of December, 1995, by and between XXXXXXX X. XXXXXXX
(hereinafter "Landlord"), and XXXXXXXX'X, INC. OF FLORIDA, a Florida
corporation, (hereinafter "Tenant").
1. Reference Data and Definitions. Any reference in this
Lease to the following subjects including any reference contained in the
Articles and Exhibits indicated by parentheticals, shall incorporate therein the
data stated for the subject(s) in this Article 1:
LANDLORD'S ADDRESS: 0 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: None
WITH AN ADDITIONAL COPY TO:
Hamden X. Xxxxxx, III, Esquire
000 X. Xx. Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TENANT'S ADDRESS: 0000 Xxxxx Xxxxxxx Xxxx
Xxxxx, XX 00000
Telephone:
Facsimile:
WITH AN ADDITIONAL COPY TO:
Cozen and X'Xxxxxx
The Atrium
0000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LEASED PREMISES: All of that parcel of real property
and the 78,000 +\- square foot
commercial building constructed on
it located at 0000 Xxxxx Xxxxxxx
Xxxx, Xxxxxxxx Xxxxxx, Xxxxx, XX
00000, more particularly described
on Exhibit "A", attached to and
forming a part of this Lease.
(Article 2)
BUILDING RENTABLE AREA: 78,000 +\- rentable square feet.
COMMENCEMENT DATE: December 15, 1995 (Article 2)
TERM: Three (3) years (Article 2)
EXTENSION OPTIONS: Three (3) consecutive (Article 36)
EXTENSION PERIOD: One (1) year each (Article 36)
TERMINATION DATE: 11:59 p.m. on December 31, 1998,
ANNUAL FIXED RENT: $312,000.00 plus applicable Florida State Sales Tax
(Article 2, Article 36)
MONTHLY FIXED RENT: $26,000.00 plus applicable Florida State Sales Tax
(Article 2, Article 36)
PERMITTED USE: A textile manufacturing plant, related and
affiliated warehouse and office use, and such other and additional
lawful related purposes.
SECURITY DEPOSIT: None
IN CASE OF CONFLICT BETWEEN THE PROVISIONS OF THIS ARTICLE 1 AND
THE PROVISIONS SET FORTH ELSEWHERE IN THIS LEASE, SUCH PROVISIONS
ELSEWHERE SHALL CONTROL.
2
2. Demise, Use, Rent and Term. In consideration of the mutual
covenants set forth in this Lease, and of the rent provided for herein, Landlord
hereby leases to Tenant and Tenant hereby hires and takes from Landlord, for the
term and subject to the provisions hereof, the Leased Premises in Article 1
above (the parcel of land herein referred to separately as the "Land", the
commercial building herein referred to separately as the "Building" and
collectively herein referred to as the "Premises"); this demise being for a term
(herein referred to as the "Term") beginning on the Commencement Date and
ending, without the necessity of notice from either party to the other, on the
Termination Date, for the Annual Fixed Rent, lawful money of the United States
of America, payable from and after the Commencement Date in equal monthly
installments, each in the amount of 1/12 of the Annual Fixed Rent, in advance on
or before the first day of each calendar month during the Term. Rent Year 1
shall commence on the Commencement Date, and shall terminate on the day before
the first anniversary of the Commencement Date if the Commencement Date is the
first day of a month (or the day before the first day of the first month
occurring after the first anniversary of the Commencement Date if the
Commencement Date is not the first day of a month). The remaining Rent Years
shall be the successive one year periods after Rent Year 1. If the Commencement
Date is other than the first day of a month, rent (including Annual Fixed Rent
and any additional rent) from such date until the first day of the following
month shall be prorated and shall be payable (together with the rent for the
first full calendar month after the Commencement Date) on the Commencement Date.
3. Commencement of Term.
(a) The Term shall commence on December 15, 1995
(herein referred to as the "Commencement Date").
4. Holding Over. If Tenant or any person claiming through
Tenant shall continue to occupy the Premises after the expiration or earlier
termination of the Term or any renewal of the Term with or without Landlord's
prior written consent, such holding over shall not be deemed to extend the Term
or to renew the Lease, but the tenancy thereafter shall be from month-to-month
only, at the rental in effect during the last month of the immediately-
preceding Term, subject to being terminated by either party at the end of any
month, upon thirty (30) days' prior written notice and subject to all of the
other terms and conditions of this Lease.
3
5. Improvements.
(a) In reliance upon Landlord's representation and
warranty that all mechanical systems and structural components of the Building
are in good condition, working order and fully operative, without the necessity
for any capital improvements or major repairs, Tenant, by entering into
possession of the Premises, accepts the Premises subject to the foregoing
representation and warranty of Landlord, except: (a) as provided elsewhere by
the provisions of this Lease, and (b) for latent defects as to which Tenant
specifically reserves, and does not waive, all claims, rights and remedies it
may have at law, in equity or by contract.
(b) During the initial Term of the Lease, and any
extension or renewal of it, Tenant has the right, at its own expense, and
without the prior written consent and approval of Landlord or any mortgagee of
the Premises, to make alterations and improvements to the Premises which may be
necessary for carrying on Tenant's business. Provided, however, that Tenant
shall not, without the prior written consent of Landlord, make any additions,
alterations or improvements to the Building which would substantially alter or
change the architectural or structural character of the Building. At the
expiration or earlier termination of the Lease all such leasehold improvements
and alterations shall become the property of the Landlord, unless Landlord shall
have given Tenant written notice at least ninety (90) days before the expiration
or earlier termination of the Lease to remove such improvements and alterations.
4
(c) Tenant shall obtain all permits and
authorizations required for the prosecution of alterations and improvements, and
shall comply with the requirements of all applicable insurance coverage in
prosecuting the work. To the extent that any additional risk is created by
Tenant's performance of alterations and improvements, Tenant will obtain
appropriate insurance coverage to protect Landlord and Tenant, as their
interests may appear, against such additional risk during the construction
period.
(d) Tenant shall hold harmless, indemnify and defend
Landlord against all claims or liability attributable to mechanics' or similar
lien claims, arising out of Tenant's construction of alterations and
improvements to the Building.
(e) Notwithstanding anything in this Article to the
contrary, at the expiration or earlier termination of this Lease all personal
property of Tenant, including, but not limited to, goods, wares, inventory,
furniture, fixtures, equipment and machinery shall be and remain property of
Tenant, and, provided that Tenant is not then in default under the Lease, Tenant
shall have the right and shall be permitted to remove such personal property
from the Premises. Personal property of Tenant specifically excludes any
alteration or improvement that is permanently affixed to the Building,
including, but not limited to, walls, floors, carpeting, ceilings and
partitions. To the extent that the removal of Tenant's personal property may
cause any damage to the Building, Tenant shall repair the damage, restoring the
damaged area to its condition immediately preceding removal of Tenant's personal
property.
5
(f) The maintenance and/or repair of mechanical
systems in the Building are not to be construed as alterations or improvements
within the scope of this Article.
6. Real Estate Taxes.
(a) All Real Estate Taxes, as hereafter defined,
shall be paid by Landlord, including any increase in real estate taxes
attributable to Tenant's leasehold improvements. Provided, however, that Tenant
shall reimburse Landlord for any increase in real estate taxes attributable
solely to Tenant's leasehold improvements within fifteen (15) business days
after Tenant's receipt from Landlord of an invoice for such increase accompanied
by a copy of Landlord's original Real Estate Tax Xxxx, evidence of payment of
Real Estate Taxes, and a separate calculation from the applicable taxing
authority stating that portion of any Real Estate Tax increase specifically
attributable to Tenant's leasehold improvements. Notwithstanding the foregoing,
Tenant reserves the right to contest and to protest the validity and/or amount
of any such increase, and any recovery credit, reduction or remittance achieved
by Tenant shall be the exclusive property of and shall be paid directly to
Tenant. The term "Real Estate Taxes" shall mean all real estate taxes and
assessments, general or special, ordinary or extraordinary, foreseen or
unforeseen, and ad valorem taxes (other than "Lease Taxes" as defined in Article
7 below) assessed or imposed upon the Premises. If, due to a future change in
the method of taxation, any franchise, income, profit or other tax, however
designated, shall be levied or imposed in substitution, in whole or in part, for
(or in lieu of) any tax or addition or increase in any tax which would otherwise
be included within the definition of Real Estate Taxes, such other tax shall be
deemed to be included within Real Estate Taxes as defined herein.
6
7. Lease Tax. If federal, state or local law now or hereafter
imposes any tax, assessment, levy or other charge (other than any income tax)
directly or indirectly upon Landlord with respect to this Lease or the value of
it, or upon the Tenant's use or occupancy of the Premises, or upon the rent
(including, but not limited to applicable state sales tax attributable to the
Lease), additional rent or any other sums payable under this Lease or upon this
transaction (all of which are herein called "Lease Taxes"), Tenant shall pay to
Landlord, as additional rent within ten (10) business days after Tenant's
receipt of a xxxx from Landlord, the amount of the Lease Taxes, unless Tenant
shall be prohibited by law from paying the same, in which event, Landlord shall
be entitled, at its election, to terminate this Lease by written notice to
Tenant.
7
8. Tenant Utilities. Tenant shall make application for,
obtain directly, pay for and be solely responsible for all utilities consumed at
the Premises, including, but not limited to, all water, gas, telephone service,
garbage and trash collection, and electricity used or consumed by Tenant, and
hold harmless Landlord against any charge, lien, claim or demand arising out of
Tenant's use or consumption of such utilities.
8
9. Payment of Rent; Interest. Without any demand therefor and
without setoff or deduction (except as otherwise expressly provided in the
Lease), Tenant shall pay to Landlord the Annual Fixed Rent and all additional
rent and all other sums due hereunder, at the times and in the manner herein
provided, to Landlord at the address set forth in Article 1, above, or to such
other person and at such other place as Landlord may from time to time designate
in writing. If any payment or any part of a payment to be made by Tenant to
Landlord pursuant to the terms of this Lease shall become overdue for a period
in excess of five (5) days after such payment is due (such due date to include
any grace period granted or established by notice from Landlord to Tenant as
provided in this Lease), Tenant shall pay interest on the payment overdue from
the date when such payment or part of a payment was due at the rate of twelve
percent (12%), (the "Lease Interest Rate") or, if there shall be a maximum
amount rate permitted by law, such lesser amount or rate as represents the
maximum amount or rate Landlord lawfully may charge with respect to Tenant in
such circumstances. Nothing herein shall be construed as waiving any rights of
Landlord arising out of any default of Tenant, by reason of Landlord's imposing
or accepting such interest; the right to collect interest is separate and apart
from any rights relating to remedies of Landlord after default by Tenant.
Without limiting the generality of the foregoing, if Tenant shall be in default
in the performance of any of its obligations hereunder, Landlord may (but shall
not be obligated to do so), in addition to any other rights it may have in law
or equity, cure such default on behalf of Tenant, and Tenant shall reimburse
Landlord within ten (10) days after demand for all costs reasonably and
necessarily incurred by Landlord (supported by invoices providing in reasonable
detail and explanation of all services rendered, and costs incurred) in curing
such default, including, without limitation, reasonable attorneys' fees and
other legal expenses, together with interest thereon at the Lease Interest Rate,
which costs and interest thereon shall be deemed to be additional rent
hereunder. If Landlord fails to submit to Tenant the requisite documentary
support, Tenant's obligation to make payment within such time-frame shall be
deferred until the requisite documentary support is delivered to and approved by
Tenant, which approval shall not be unreasonably conditioned, withheld or
delayed, and shall be deemed to have been given within ten (10) business days
after Tenant's receipt of the requisite documentary support if Tenant's
objection or approval is not given sooner. Tenant's covenant to pay the Annual
Fixed Rent and additional rent is independent of any other covenant, agreement,
term or condition of this Lease.
9
10. Quiet Enjoyment. Upon paying to Landlord Rent and all
other charges provided for under this Lease, and observing and keeping all
covenants, agreements and conditions of this Lease, Tenant shall quietly have
and enjoy the Premises during the Term of this Lease, and any renewal or
extension of it, without hindrance or molestation by Landlord or anyone claiming
by, through or under Landlord.
11. Signage. Tenant shall have the right to install signage
at the Premises and on the Building identifying Tenant, displaying its logo,
identifying the location of the Premises, and otherwise regulating the day to
day operation of Tenant's business at and from the Premises. Such signage shall
be built and installed in accordance with all applicable state, county and local
codes. At the expiration or earlier termination of this Lease, Tenant shall
remove the signage installed and repair any damage caused by such removal.
12. Use. Tenant shall not use or occupy, or permit to be used
or occupied, the Premises or any part thereof, other than for the Permitted Use
specified in Article 1.
10
13. Assignment and Subletting. Tenant shall not mortgage,
pledge or encumber this Lease. Tenant may assign this Lease, or sublet or
underlet all or any portion of the Premises, provided that in each instance
Tenant (i) first notifies Landlord in writing that it desires to assign the
Lease, sublet or underlet the Premises a portion of it, providing the terms of
the proposed assignment or sublease; and (ii) first obtains the written consent
of Landlord which consent Landlord shall not unreasonably withhold, condition or
delay. The foregoing conditions for assignment or subletting shall not apply to
an assignment or subletting by operation of law. In the event that Landlord
grants its consent to any assignment of the Lease or subletting of the Premises,
no such assignment will be valid unless the assignee shall execute and deliver
to Landlord an assumption of liability agreement in form satisfactory to
Landlord, and no such subletting will be valid unless the subtenant first enters
into a written agreement with Landlord, in such form and with such terms,
covenants and conditions as may be reasonably required by Landlord. No consent
by Landlord to an assignment or subletting shall constitute a consent to any
further assignment of this Lease or subletting of all or any portion of the
Premises. Further, Landlord's consent to an assignment or subletting shall not
release Tenant from its primary obligation to pay the Annual Rent and all rent
and other sums payable by Tenant under the Lease and to perform all other
obligations to be performed by Tenant under the Lease.
11
14. Fire or Other Casualty.
(a) If the Building and/or other improvements on the
Premises (including mechanical systems and/or equipment used in the operation of
the Building) are damaged or destroyed by fire or other casualty, Landlord
shall, at its sole cost and expense, promptly and diligently commence and
prosecute to completion the repair, rebuilding, restoration or replacement
(hereafter generically "restoration") of the Building and/or other improvements
on the Premises, so as to restore them within sixty (60) days after such
casualty, to their respective conditions immediately before such damage or
destruction. Provided however, that if such fire or other casualty occurs (i)
during the last six (6) months of the then-current Term of this Lease, which
Term Tenant has not extended pursuant to express provision of this Lease, and it
will take more than sixty (60) days to restore the damage or destruction
measured from the date of the fire or other casualty, or (ii) renders all or a
substantial portion of the Building untenantable, Landlord shall have the right
to terminate this Lease (with equitable prorations of Rent for Tenant's
possession of any tenantable portion of the Premises from and after the date of
casualty and before the effective date of termination) by giving Tenant written
notice within thirty (30) days after the date of the fire or other casualty, and
the Lease shall be deemed to be terminated as of the date Tenant receives
Landlord's notice, but affording Tenant sufficient time and opportunity to
remove its property from the Premises; and neither party shall have any further
liability to the other under the Lease except for obligations which were accrued
and unpaid as of the date of the casualty, subject to appropriate set-offs, if
any. For the purposes of this Article, thirty percent (30%) or more of the floor
area of the Building shall be deemed to be a substantial portion of the
Building. Landlord and Tenant agree that any deviation plus or minus two percent
(2%) from the definition of "substantial portion of the Building", shall be
deemed to be a de minimis deviation and the provisions of this subparagraph
shall remain operative. If such notice is given, Landlord shall have no
obligation to restore. If Landlord fails to give written notice of termination
within such thirty (30)-day period, Landlord shall be deemed to have elected to
restore such damage in accordance with this Article. Under all circumstances,
Rent shall equitably xxxxx as to those portions of the Building that are
untenantable, from time to time, as a result of such fire or other casualty.
12
It shall be Landlord's responsibility to obtain its
mortgagee's release of insurance proceeds for the purpose of making repairs and
Landlord's consent not to apply any portion of insurance proceeds to the
mortgage loan except if the insurance proceeds exceed the cost of repairs and
restoration.
13
(b) If the Building and/or other improvements on the
Premises (including mechanical systems and/or equipment used in the operation of
the Building) are damaged or destroyed by fire or other casualty, Tenant shall
have the right to terminate this Lease in accordance with the provisions of this
subparagraph. If the damage or destruction (i) occurs within the last six (6)
months of the then-current Term of this Lease, which Term Tenant has not
extended pursuant to express provisions of this Lease, and will take more than
sixty (60) days to restore measured from the date of the fire or other casualty,
or (ii) renders all or a substantial portion of the Building untenantable,
Tenant may terminate this Lease by giving Landlord written notice thirty (30)
days after the date of fire or other casualty, and the Lease shall be deemed to
be terminated as of the date Landlord receives Tenant's notice, but affording
Tenant sufficient time and opportunity to remove its property from the Premises.
If the commencement or substantial completion of the restoration of the Premises
does not occur, or in Landlord's reasonable judgment (of which Tenant shall be
given notice within thirty (30) days after the fire or other casualty) will not
occur, within sixty (60) days after the fire or other casualty, Landlord shall
notify Tenant in writing (which notice shall include Landlord's reasonable
estimate of the date of substantial completion of the restoration), and Tenant
shall have the right to terminate this Lease effective as of the date of
Landlord's notice to Tenant, but affording Tenant sufficient time and
opportunity to remove its property from the Premises, by giving written notice
of termination within fifteen (15) business days after its receipt of Landlord's
notice. In the event of any termination pursuant to this subparagraph; neither
party shall have any further liability to the other under the Lease except for
obligations which were accrued and unpaid as of the date of the casualty,
subject to appropriate set-offs, if any. If Tenant does not terminate this lease
as provided above, and the substantial completion of the restoration does not
occur by the estimated date of substantial completion contained in Landlord's
notice, within ten (10) business days after a determination is made that
substantial completion will not occur by the estimated date, Landlord shall
provide Tenant a second written notice estimating the extended date of
substantial completion and Tenant shall again have the right, exercisable by
written notice given with ten (10) business days after the receipt of Landlord's
notice, to terminate the Lease within the fifteen (15)-day time period set forth
above. In each instance in which Tenant elects not to exercise its right to
terminate as provided in this subparagraph, that right to terminate, following
the same procedure and schedule, shall arise again if substantial completion has
not occurred by the estimated date of substantial completion set forth in the
notice upon which Tenant's previous election not to terminate was based.
14
15. Landlord's Right to Enter. Tenant will permit Landlord,
its agents, employees and any other persons authorized by Landlord in writing,
to enter the Premises at reasonable times during Tenant's normal operating
hours, which times have been mutually agreed upon by Landlord and Tenant, and
after Landlord's first having given Tenant at least twenty-four (24) hours'
prior written notice (except in the event of an emergency, in which case prior
written notice shall not be required), to inspect and exhibit the Premises and
to make alterations, improvements or repairs to the Building that may reasonably
be necessary to the operation, preservation or maintenance of the Building;
provided, however, that such entry by Landlord shall not deprive Tenant of or
interfere with Tenant's use of the Premises and/or operation of its business in
and from the Premises.
15
16. Insurance.
(a) Throughout the Term of this Lease and any
renewal or extension of it, Landlord shall carry commercial general liability
insurance endorsed for contractual liability covering Landlord and having limits
of not less than $3,000,000 per occurrence and annual aggregate limit for bodily
injury, and $1,000,000 per occurrence and annual aggregate limit for property
damage. Landlord's liability policy shall name Tenant as an additional insured
and provide that it shall not be cancelled or changed without at least thirty
(30) days' prior written notice to Tenant. Landlord's policy(ies) shall be
issued by insurers of recognized responsibility licensed to do business in
Florida, and certificates of such insurance certified by the insurer shall be
supplied to Tenant. All premiums for Landlord's insurance and any endorsements
to such coverage shall be the responsibility of and shall be paid for by
Landlord.
(b) Tenant will not knowingly do or commit, or
suffer or permit to be done or committed, any act or thing as a result of which
any policy of insurance of any kind on or in connection with the Building or the
Premises, or any part thereof, shall become void or suspended, or the insurance
risk on the Building or the Premises or any part thereof shall (in the opinion
of the insurer or proposed insurer) be rendered materially more hazardous. If it
is determined that (in the opinion of the insurer or proposed insurer) conduct
of the Tenant caused the insured risk on the Building or the Premises, or any
part thereof, to be materially more hazardous with a resulting increase in
premium, Tenant shall pay as additional rent the amount of any increase of
premiums for such insurance within thirty (30) days after receiving a xxxx for
the increase in premium supported by documentation evidencing the determination
of materially increased hazard and resulting increase in premium.
Notwithstanding anything to the contrary in this subparagraph, Tenant shall have
the right to contest any determination of materially increased hazard and
resulting increase in premium. To the extent that Tenant's contest is
successful, any rebate or refund of premium shall be paid directly to Tenant, or
paid over by Landlord to Tenant within ten (10) days after Landlord's receipt of
the rebate or refund.
16
(c) Tenant shall obtain and maintain all-risk, fire
and extended coverage upon the Building, and all alterations, additions,
improvements (leasehold or otherwise) and decorations in, or and to the
Building. Such coverage shall include full replacement cost coverage and an
agreed amount endorsement, and shall provide for a deductible of no more than
$5,000. The premium for such coverage shall be paid by Landlord either within
five (5) business days after Landlord's receipt of an invoice from Tenant, or by
Tenant's deduction of the premium from the monthly installment of rent, at
Tenant's option. Payment of the deductible shall be solely the responsibility of
Landlord, and shall be paid by Landlord to Tenant within five (5) business days
after Landlord's receipt of Tenant's written demand for payment.
17
(d) Throughout the Term of this Lease and any
renewal or extension of it, Tenant shall maintain, at Tenant's expense, (i) all
risk, fire and extended coverage insurance against hazards to Tenant's personal
property located on or in the Premises up to their full replacement cost, and
(ii) a policy or policies of comprehensive general public liability insurance,
endorsed for contractual liability, having such limits of not less than
$3,000,000 per occurrence and annual aggregate limit for bodily injury, and
$1,000,000 per occurrence and annual aggregate limit for property damage. Such
policies shall name Landlord as an additional insured and provide that they
shall not be cancelled or changed without at least thirty (30) days' prior
written notice to Landlord. All of Tenant's policies shall be issued by insurers
of recognized responsibility licensed to do business in Florida, and
certificates of such insurance certified by the insurers shall be supplied to
Landlord. All premiums for Tenant's insurance and any endorsements to such
coverage shall be the responsibility of and shall be paid for by Tenant.
(e) Notwithstanding anything in this Lease to the
contrary, each party hereby releases the other party, its agents and employees,
to the full extent that the releasing party is or is required under this Lease
to be insured, from any and all liability for any loss or damage which may be
inflicted upon the property of such party, notwithstanding that such loss or
damage shall have arisen out of the negligent or other tortious act or omission
of the other party, its agents or employees. Each and every policy of property
insurance of the party so releasing shall contain a clause either (i) that such
release shall not affect the policy or the right of the insured to recover
thereunder, or (ii) an express waiver of the insurer's rights of subrogation.
18
17. Representations and Warranties of Landlord.
(a) Landlord represents and warrants that:
(1) The mechanical systems serving and/or
delivering services and/or utilities to the Building
(including, but not limited to heating, ventilation, air
conditioning, plumbing, and electrical systems) have been
maintained continuously by Landlord, its agents, employees or
independent contractors, and that those systems are and on
the Commencement Date will be in good condition, working
order and fully operative.
(2) The current zoning classification of the
Premises is "C-2", and the construction of the Building on
the Land, and Tenant's operation of its business from and use
of the Building does not violate any zoning, subdivision,
building or similar laws, codes, ordinances, orders,
regulations or recorded plats, and there are no presently
outstanding and uncured notices of violations;
(3) Landlord has not received notice of any
condemnation proceeding or other proceedings in the nature of
eminent domain ("Taking"), and no Taking has been threatened.
(4) The Building was constructed in
accordance with, and complies with, all applicable federal,
state and local laws, ordinances, codes, rules, orders,
regulations or requirements. Landlord has no knowledge of any
defective condition, structural or otherwise, with respect to
the Building.
19
(5) The Premises and all activities and
conditions at the Premises have been in compliance with the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. ss.ss.9601 et seq., as amended from
time to time ("CERCLA"), the Resource Conservation and
Recovery Act, 42 U.S.C. ss.ss.6901 et seq., as amended from
time to time ("RCRA"), and the Clean Water Act, 33 U.S.C.
ss.ss.7401 et seq., as amended from time to time, the Toxic
Substances Control Act, 15 U.S.C. ss.ss.2601 et seq., as
amended from time to time, and with all other federal, state
and local environmental statutes, ordinances, regulations,
orders and requirements of common law, regarding and
including, without limitation: the discharge, emission or
release of any Contaminant (hereinafter defined) to the air,
soil, surface water or ground water; the discharge of any
dredge or fill material to a wetland or other water of the
United States (as hereinafter defined); the storage,
treatment, disposal or handling of any Contaminant; or the
construction, operation, maintenance or repair of aboveground
or underground storage tanks (collectively, "Environmental
Laws").
(6) No Contaminant that may require
remediation under Environmental Laws is present on, over or
under or is migrating from the Premises. The term
"Contaminant" shall mean any "hazardous substance",
"pollutant or contaminant" as defined pursuant to CERCLA or
the Spill Act, "petroleum" as defined pursuant to RCRA or the
Spill Act or any material containing petroleum, any
polychlorinated biphenyls (PCBs) or substances containing
PCBs, any urea formaldehyde foams, or any asbestos or
materials containing asbestos.
20
(7) Neither radon nor any radon progeny is
present at any area of the Premises in excess of 4
picocuries/liter.
(8) Neither Landlord, nor any prior tenant
of the Premises, has generated, stored, treated, disposed of,
discharged, released, emitted or otherwise handled any
Contaminant on, over, under, from or in any manner affecting
the Premises. For the purposes of this paragraph only,
"Contaminant" shall not include construction materials (other
than asbestos, polychlorinated biphenyls or urea formaldehyde
foam), office equipment, fuel and other similar products
contained in vehicles and cleaning solutions and other
maintenance materials that are customarily used or stored
incidental to and are reasonably necessary for the operation
or maintenance of the Building.
(9) With the exception of a single
underground storage tank identified in the Phase I Report by
Atlanta Testing & Engineering, No. 9042-1 dated June 28,
1991, no underground or above ground storage tanks are
present at the Premises.
21
(10) No civil, criminal or administrative
proceeding is pending or threatened relating to Environmental
Laws or Contaminants on, over, under, from or affecting the
Premises. Neither Landlord, nor its agents has received any
notice of violation or potential liability regarding the
Premises or activities thereon relating to Environmental Laws
or Contaminants on, over, under, from or affecting the
Premises and Landlord has no reason to believe that any such
notice or notices will be received, nor does Landlord have
reason to know of circumstances that would give rise to such
notice or notices or proceedings in the future. Landlord has
not entered into any consent order, consent decree,
administrative order, judicial order or settlement relating
to Environmental Laws or Contaminants on, over, under,
migrating from or affecting the Premises.
(11) All services necessary for the
operation of Tenants's business at and from the Building
(including, but not limited to, electricity, gas, water,
sanitary sewer and other requisite utilities) are available,
installed and servicing the Building.
(b) The foregoing representations and warranties are
true and correct as of the date of this Lease, shall be true and correct at and
as of the Commencement Date in all respects as though such representations and
warranties were made both at and as of the date of this Lease, and at and as of
the Commencement Date; and shall survive the expiration or earlier termination
of this Lease.
22
(c) Landlord shall hold harmless, indemnify and
defend Tenant of, from and against any liability, claim, cause of action,
demand, suit, proceeding, judgment, loss, penalty, fine, damages, costs and
expenses (including, without limitation attorneys' fees and court costs) or the
like asserted against or incurred by Tenant, arising out of or relating to the
breach of any representation or warranty of Landlord, and/or arising out of or
relating to the existence or non-existence of any condition as to which Landlord
delivered its representation and warranty to Tenant. Notwithstanding any
provision of this Lease to the contrary, it is understood and agreed that the
remedy of indemnity pursuant to this subparagraph and Tenant's remedies at law
may be inadequate in the case of any breach by Landlord of its representations
and warranties, and Landlord agrees that Tenant shall be entitled to equitable
relief and to the remedy of specific enforcement, to the extent necessary and
appropriate. Landlord's obligations pursuant to this subparagraph shall survive
expiration or earlier termination of this Lease.
18. Representations and Warranties of Tenant.
(a) Tenant represents and warrants that:
(1) Tenant will not engage in activities at
the Premises that violate the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C.
ss.ss.9601 et seq., as amended from time to time ("CERCLA"),
the Resource Conservation and Recovery Act, 42 U.S.C.
ss.ss.6901 et seq., as amended from time to time ("RCRA"),
and the Clean Water Act, 33 U.S.C. ss.ss.7401 et seq., as
amended from time to time, the Toxic Substances Control Act,
15 U.S.C. ss.ss.2601 et seq., as amended from time to time,
and with all other federal, state and local environmental
statutes, ordinances, regulations, orders and requirements of
common law, regarding and including, without limitation: the
discharge, emission or release of any Contaminant
(hereinafter defined) to the air, soil, surface water or
ground water; the discharge of any dredge or fill material to
a wetland or other water of the United States (as hereinafter
defined); the storage treatment, disposal or handling of any
Contaminant; or the construction, operation, maintenance or
repair of aboveground or underground storage tanks
(collectively, "Environmental Laws").
23
(2) Tenant will not discharge any
Contamination that may require remediation under
Environmental Laws. The term "Contaminant" shall mean any
"hazardous substance", "pollutant or contaminant" as defined
pursuant to CERCLA or the Spill Act, "petroleum" as defined
pursuant to RCRA or the Spill Act or any material containing
petroleum, any polychlorinated biphenyls (PCBs) or substances
containing PCBs, any urea formaldehyde foams, or any asbestos
or materials containing asbestos.
(3) Tenant will not generate, store, treat,
dispose of, discharge, release, emit or otherwise handle any
Contaminant on, over, under, from or in any manner affecting
the Premises. For the purposes of this paragraph only,
"Contaminant" shall not include construction materials (other
than asbestos, polychlorinated biphenyls or urea formaldehyde
foam), office equipment, fuel and other similar products
contained in vehicles and cleaning solutions and other
maintenance materials that are customarily used or stored
incidental to and are reasonably necessary for the operation
or maintenance of the Building.
24
(b) Tenant shall hold harmless, indemnify and defend
Landlord of, from and against any liability, claim, cause of action, demand,
suit, proceeding, judgment, loss, penalty, find, damages, cost and expenses
(including, without limitation attorneys' fees and court costs) or the like
asserted against or incurred by Landlord, arising out of or relating to the
breach of any representation or warranty of Tenant, and/or arising out of or
relating to the existence or non-existence of any condition as to which Tenant
delivered its representation and warranty to Landlord. Notwithstanding any
provision of this Lease to the contrary, it is understood and agreed that the
remedy of indemnity pursuant to this subparagraph and Landlord's remedies at law
may be inadequate in the case of any breach by Tenant of its representations and
warranties, and Tenant Agrees that Landlord shall be entitled to equitable
relief and to the remedy of specific enforcement, to the extent necessary and
appropriate. Tenant's obligations pursuant to this subparagraph shall survive
expiration or earlier termination of this Lease.
19. Repairs and Condition of Premises.
(a) Landlord shall be responsible to maintain,
repair and replace the foundations, roofs, exterior walls, bearing walls, and
structural components (including, but not limited to, beams and columns) of the
Building, and all components specifically excepted from the Premises pursuant to
Article 26 of this Lease. During the Term of this Lease, Tenant shall keep the
Building, and at the expiration or other termination of this Lease, Tenant shall
leave the Building, in good order and condition, ordinary wear and tear, damage
by fire or other casualty and repairs to be performed by Landlord under this
Lease alone excepted; and for that purpose and except as stated, Tenant will
make all necessary repairs and replacements that are not the responsibility of
Landlord under this Lease.
25
To the extent that the cost of any such repair or replacement
exceeds $10,000, Tenant shall first obtain Landlord's consent, which Landlord
shall not unreasonably withhold, condition or delay.
(b) Notwithstanding anything to the contrary in this
Lease or in this Article specifically, from and after the date on which the
aggregate cost to Tenant to repair or maintain each separate of the electrical,
plumbing and heating systems equals $5,000, and the aggregate cost to Tenant to
repair or maintain the ventilation and air conditioning system equals $15,000,
any repair or maintenance for that particular system shall be deemed to be a
capital repair and the cost of such repair and/or maintenance in excess of that
amount shall be deemed to be a capital expense, to be borne by and paid by
Landlord exclusively.
(c) During the Term of this Lease, and at its
expiration or earlier termination, Tenant shall remove all dirt, rubbish, waste
and refuse from the Premises, and at the termination of the Term will also have
removed or caused to be removed all of its property from the Premises, so that
Landlord may again have and repossess the Premises.
26
20. Compliance with Law. Tenant agrees to comply with those
laws, ordinances, notices, requirements, orders, regulations and recommendations
of Federal, State, or local authorities or of the Board of Fire Underwriters or
any insurance organizations, associations or companies, relating to Tenant's
particular use of the Premises and any property owned by Tenant and located on
the Premises or within the Building, the violation of which will have a material
adverse impact on the use, condition or value of the Premises; and not to engage
knowingly in activities at the Premises in violation of the Environmental Laws.
Tenant shall use its good faith efforts to give Landlord prompt written notice
of any accident on the Premises or in the Building and of any breakage, defect
or failing in any of the systems or equipment servicing the Premises. Landlord
shall comply with all legal requirements relating to the use, occupancy and
condition of the Building; and covenants that it will cause the Building to
conform to all applicable legal requirements as the same may change from time to
time. Landlord represents and warrants that the Building has been constructed
and maintained in accordance with all applicable laws, ordinances, notices,
requirements, orders, regulations, codes and recommendations of Federal State or
local authorities, such that Tenant shall be able to obtain and maintain all
necessary permits to use and occupy the Building in the operation of Tenant's
business.
27
21. Mechanics' Liens.
(a) The parties do not intend that the Landlord's
interest in the Premises is to be subject to liens for improvements made by
Tenant to or upon the Premises. Tenant shall promptly pay all contractors and
materialmen for work done or services, material, equipment or supplies furnished
at the request of Tenant, so as to minimize the possibility of a claim being
asserted or a lien attaching to the Premises or any portion of it. If any such
lien or claim shall be filed, Tenant shall promptly after receipt of written
request from Landlord, cause the same to be discharged of record by payment,
deposit, bond or otherwise. If Tenant shall fail to cause such lien or claim to
be discharged promptly after written request from Landlord, then, in addition to
any other right or remedy it may have, Landlord may, but shall not be obligated
to, contest such lien or claim, or to discharge it by payment, deposit, bond or
otherwise. Any cost incurred by Landlord in contesting such lien claim, or
causing it to be discharged shall be recoverable by Landlord from Tenant as
additional rent pursuant to the terms of this Lease.
22. Recordation of Memorandum of Lease. Either party may
record a memorandum or so called "short form" of this Lease. The cost and
expense of preparing and recording any such memorandum or "short form" of Lease
shall be paid by the party desiring that such memorandum or "short form" of
Lease be recorded.
28
23. Default/Remedies of Landlord.
(a) If any of the following shall occur, such
occurrence shall constitute a default under this Lease (and the term "default"
whenever used in this Lease shall refer only to the circumstance that exists
after the giving of notice and the expiration of any cure or grace period
provided in this Lease):
(i) Tenant does not pay in full when due any
installment of Rent or any other sum payable by Tenant to
Landlord under this Lease whether or not included as Rent
under this Lease, and the failure continues for ten (10) days
after Tenant receives written notice from Landlord specifying
such failure;
(ii) Tenant fails to perform or comply with
any obligation imposed upon Tenant under this Lease (other
than the payment of money) and such failure continues for
thirty (30) days after Tenant's receipt of written notice
from Landlord specifying such failure, or such longer period
as may be necessary if such failure cannot reasonably be
cured within thirty (30) days even with the exercise of
reasonable and diligent effort, but Tenant has commenced
curative action within ten (10) days after Tenant's receipt
of notice, and diligently and continuously pursues such
curative action to completion.
(iii) Tenant abandons the Premises;
29
(iv) Tenant becomes the subject of
commencement of an involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, or there is
filed a petition against Tenant seeking reorganization,
arrangement, adjustment or composition of or in respect of
Tenant under the Federal bankruptcy laws as now or hereafter
constituted, or under any other applicable federal or state
bankruptcy, insolvency, reorganization or other similar law,
and the case is not dismissed within ninety (90) days after
filing;
(v) Tenant commences a voluntary case or
institutes proceedings to be adjudicated a bankrupt or
insolvent, or consents to the institution of bankruptcy or
insolvency proceedings against it, under the Federal
bankruptcy laws as now or hereafter constituted, or any other
applicable Federal or state bankruptcy or insolvency or other
similar law;
(vi) A receiver, conservator or similar
officer is appointed by a court of competent jurisdiction to
take charge of all or a substantial part of Tenant's
property, and that officer is not discharged and possession
of Tenant's property is not restored to Tenant within ninety
(90) days after appointment;
(vii) Tenant makes any assignment for the
benefit of creditors;
(viii) Tenant's interest in the Premises or
under this Lease is the subject of levy under execution,
attachment or other similar process of law and such actin is
not cancelled or discharged within ninety (90) days after its
occurrence.
(b) In any such event, and at the sole option of
Landlord, Landlord may pursue the following remedies:
(i) Re-enter and repossess the Premises,
remove any property located in or on the Premises and store
such property in a public warehouse or other secure place at
the cost and expense of Tenant, giving Tenant twenty-four
(24) hours' prior written notice; or
30
(ii) Re-let the Premises or any part of it
for Tenant's account; or
(iii) Bring any action against Tenant to
recover the amount of any payment owing by Tenant to Landlord
as such payment becomes due; or
(iv) Terminate this Lease by giving Tenant
prior written notice of termination without relieving Tenant
of any liability or obligations for payments that became due
before termination; or
(v) only as an alternative remedy to the
foregoing, and not in conjunction with or cumulatively with
the foregoing remedies, Landlord may accelerate the rental
due from Tenant to Landlord for the remainder of the
then-current term, with the commensurate obligation on the
part of Landlord to make all reasonable efforts to obtain and
lease the Premises to a substitute tenant, including
prospective substitute tenants produced by Tenant having
reasonably satisfactory credit, and to give credit to Tenant
against such accelerated obligation for payments received
from such substitute tenant, in mitigation of Tenant's
damages.
(c) No waiver by Landlord of any breach by Tenant of
any of Tenant's obligations, agreements or covenants in this Lease shall be a
waiver of any subsequent breach or of any obligation, agreement or covenant, nor
shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a
waiver by Landlord of any rights and remedies with respect to such or any
subsequent breach.
31
As used in this Section, the "Term" shall include the term of
this Lease and any renewals or extensions the Lease to which Tenant shall have
become bound.
24. Default/Remedies of Tenant.
(a) If Landlord shall be in default under this Lease
including, but not limited to its failure to perform any of its duties or
obligations under this Lease, for thirty (30) days after receipt of written
notice from Tenant (unless such default is not capable of cure within thirty
(30) days, in which event Landlord shall have failed to commence curing such
default within such thirty (30)-day period and diligently prosecuted such
curative action to completion), in addition to any other rights Tenant may have
at law or in equity, Tenant may but shall not be obligated to cure such default
on behalf of Landlord. Landlord shall reimburse Tenant upon demand for all
reasonable out-of-pocket costs and expenses incurred by Tenant in curing such
default, including, without limitation, reasonable attorneys' fees and other
legal expenses, together with interest thereon at the Lease Interest Rate
accruing and payable until the date on which such costs and expenses are
indefeasibly paid in full.
(b) If the cure provided for under subparagraph (a)
above involves a payment of Tenant for Landlord's account, then Tenant may
offset the amount of such payment (plus interest at the Lease Interest Rate)
against Rent payable by Tenant under this Lease.
32
(c) If Landlord's default is such that Tenant's
occupancy of the Premises and/or its operation of its business from the Premises
is materially adversely affected, Tenant shall have the right to terminate this
Lease by giving Landlord prior written notice of intention to terminate, and the
Lease shall be deemed to be terminated as of the date specified in Tenant's
notice.
25. Remedies Cumulative. Except as expressly provided
elsewhere in this Lease, the remedies of the parties set forth in this Lease are
cumulative and are in addition to and not exclusive of any other remedy given to
them respectively in this Lease or which may be permitted by law.
26. Excepted from Premises. All ducts, pipes, conduits, wires
or other equipment used in the operation of the Building and/or providing
services or utilities to the Building, or any part of it, and any space occupied
by them, whether or not within the Building, are excepted and reserved from the
Premises and any obligation on the part of Tenant to maintain or repair the
Premises, and Tenant shall not remove or tamper with the same and will permit
Landlord to enter the Premises consistent with the provisions elsewhere in this
Lease, to service, replace, remove or repair the same.
33
27. Lease Subordinated; Non-Disturbance and Attornment.
(a) Tenant agrees that this Lease shall be subject
and subordinate to the lien of any mortgage, deed of trust and/or other
encumbrance previously or hereafter placed by Landlord upon the Premises or the
Building, and of all renewals, modifications, consolidations, replacements and
extensions thereof (all of which are hereafter referred to collectively as a
"mortgage"), automatically and without the necessity of any further action on
the part of Tenant to effectuate such subordination; provided, that before the
Commencement Date of this Lease and thereafter, within fifteen (15) days after
Landlord's grant or creation of any additional or substitute mortgage, Landlord
shall have obtained and delivered to Tenant in recordable form, an agreement
from the holder of any such mortgage to which this Lease is or may be
subordinate, a non-disturbance agreement containing a covenant binding upon the
mortgagee, its successors and assigns, that so long as Tenant is not in default
under the Lease, or if Tenant is in default under the Lease, so long as Tenant's
time to cure such default has not expired, this Lease shall not be terminated or
modified in any respect whatsoever, nor shall Tenant's right under the Lease or
its occupancy of the Premises be disturbed or affected by reason of such
mortgage or any foreclosure action or other proceeding that may be instituted in
connection with such mortgage, and that Tenant shall not be named as a defendant
in any such foreclosure action or other proceeding. Provided that the foregoing
conditions are met, Tenant shall, within ten (10) days after the receipt of
written request by any person who acquires Landlord's estate by foreclosure or
otherwise, attorn to such person, provided such person assumes in writing
Landlord's obligations under this Lease and agrees in writing not to disturb
Tenant's rights under the Lease or its occupancy of the Premises, and further
shall execute, acknowledge and deliver, within ten (10) days after the receipt
of written request by Landlord or any mortgage holder, such further instruments
evidencing such subordination, and such further instruments evidencing such
attornment obligation, as may be reasonably requested by such holder, subject to
the satisfaction of the foregoing provisions of this Article regarding non
disturbance of Tenant.
34
(b) Notwithstanding anything the contrary contained
in the foregoing provisions of this Article, the holder of any mortgage may at
any time subordinate its mortgage to the operation and effect of this Lease,
without the necessity of obtaining Tenant's consent thereto, by giving notice of
the same in writing to Tenant, and thereupon this Lease shall be deemed to be
prior to such mortgage without regard to their respective dates of execution,
delivery and/or recordation, and in that event such holder shall have the same
rights with respect to this Lease as though this Lease shall have been executed,
delivered and recorded prior to the execution and delivery of such mortgage.
35
28. Paramount Lease. Subject to the provisions of Article 27,
above, requiring that Tenant receive a reciprocal agreement of non-disturbance,
if Landlord is or becomes lessee of the Building or the Land, then Tenant agrees
that Tenant's possession shall be that of a subtenant and subordinate to the
interest of Landlord's lessor, its heirs, personal representatives, successors
and assigns (such lessor and other persons being hereafter collectively referred
to as the "Overlessor"). If Landlord's tenancy shall terminate by expiration,
forfeiture or otherwise, Tenant agrees, subject to the provisions of Article 26,
above, to attorn to Overlessor and to recognize Overlessor as Tenant's landlord
upon the terms and conditions of this Lease for the balance of the Term of this
Lease and any extensions or renewals of this Lease. Provided that Tenant
receives an appropriate and acceptable agreement of non-disturbance, Tenant
agrees within ten (10) days after its receipt of a written request from Landlord
or any Overlessor, to execute, acknowledge and deliver, such further instruments
reasonably requested evidencing such subordination of Tenant's right, title and
interest under this Lease to the interests of Overlessor, and such further
instruments of attornment, reasonably requested by such Overlessor. All such
instruments shall be prepared at the sole cost and expense of Landlord or the
Overlessor, and Tenant shall not be required to incur any cost or expense in
executing or delivering such instruments. Unless and until the provisions of
Article 26, above, are met, requiring that Tenant receive a reciprocal agreement
of non-disturbance, neither this Article nor any of its provisions shall be
effective or enforceable against Tenant.
36
29. Condemnation. If the whole or a substantial part of the
Premises is taken or condemned for a public or quasi-public use under any
statute or by right of eminent domain by any competent authority or sold in lieu
of such taking or condemnation, such that in the reasonable opinion of Tenant
the continued conduct of Tenant's business (as it existed before the taking) is
not practicable, this Lease shall terminate automatically on the date that the
right to possession shall vest in the condemning authority (the "Taking Date")
with Rent being adjusted to the Taking Date. Tenant, at its own expense, shall
be entitled to claim and to receive a separate award for damages resulting from
such condemnation, taking or sale, including, but not limited to moving and
related expenses, and such other awards and/or entitlements as may otherwise be
provided by law.
30. Notices.
(a) All notices, demands, requests or other
communications from each party to the other required, desired or permitted under
this Lease shall be in writing, given in compliance with this Article and,
unless and until otherwise specified in a written notice by the party to whom
notice is intended to be given, shall be sent to the parties at their respective
addresses set forth in Article 1, above.
Notices may be given on behalf of any party by its legal
counsel.
(b) Each notice, demand, request or other
communication shall be given (i) by hand delivery, against a written receipt of
delivery, or (ii) by registered or certified mail of the United States Postal
Service, return receipt requested, postage prepaid, or (iii) by an overnight
courier service guaranteeing next business-day delivery or (iv) via telecopier
or facsimile transmission to the facsimile number listed in Article 1 above,
provided, however, that if such communication is given via telecopier or
facsimile transmission, an original counterpart of such communication shall
concurrently be sent in either the manner specified in clause (i) or clause
(iii) above.
37
(c) Each notice, demand, request or other
communication shall be deemed to have been received (i) upon actual receipt by
the addressee, if given by hand delivery; (ii) within two (2) business days
after the date of deposit at any main or branch United States post office
(evidenced by United States Post Xxxx) if sent pursuant to subparagraph (b) (ii)
above, (iii) the next business day if sent pursuant to subparagraph (b)(iii)
above, and (iv) upon electronic confirmation of receipt if sent pursuant to
subparagraph (b)(iv) above, provided all conditions for valid transmission
pursuant to subparagraph (b)(iv) above are met.
31. Definitions.
(a) Definition of "Landlord". The word "Landlord" is
used herein to include the Landlord named in Article 1 above and any subsequent
owner of Landlord's interest in the Premises as well as their respective heirs,
personal representatives, successors and assigns, each of whom shall have the
same rights, remedies, powers, authorities and privileges as it would have had
it originally signed this Lease as Landlord, but no such person, whether or not
named herein, shall have any liability hereunder after it ceases to hold such
interest unless otherwise provided in this Lease.
38
(b) Definition of "Tenant". As used herein, the term
"Tenant" shall be deemed to refer to each and every person named in Article 1
above, and to such person's heirs, personal representatives, successors and
assigns, each of whom shall have the same obligations, liabilities, rights and
privileges as it would have possessed had it originally executed this Lease as
the Tenant.
(c) Definition of "Fair Market Rent". The term "fair
market rent" shall mean the fair market rental value determined as follows: The
fair market rental value of the Building shall be determined by Landlord and
designated by notice from Landlord to Tenant, taking into consideration the
fixed or base rental rates being quoted by other landlords for other buildings
in comparable areas of Pinellas County of the same quality, condition and level
of amenities, in either case as adjusted on account of pertinent differences
such as the location, rentable square footage, length of term, leasehold
improvements, the date the particular rental rates under consideration became
effective, applicable distinctions between "gross leases" and "net leases",
items payable by tenants, any other adjustments (including by way of indices) to
base rental, and any other term or condition relevant in making such evaluation,
subject to the limitations in Article 36, below. Landlord's determination of
fair market rental value shall be final and binding unless Tenant submits that
determination to the American Arbitration Association located in Tampa, Florida
within thirty (30) days after Tenant's receipt of that determination. In the
event that Tenant does submit that determination for arbitration, the fair
market rental value shall be determined within sixty (60) days after submission
by a panel of three arbitrators under the Commercial Arbitration Rules of the
American Arbitration Association, whose determination shall be based upon the
factors prescribed by this subparagraph; and subject to the limitations in
Article 36, below; and the award rendered by the arbitrators shall be final,
conclusive and binding. Until such an award is rendered, Tenant's rental
payments shall be made based on the Annual Fixed Rent for the immediately
preceding Term subject to later adjustment upon rendering of the award.
39
32. Estoppel Certificate.
(a) The parties agree that from time to time, within
fifteen (15) business days after written request from the other, to execute,
acknowledge and deliver to and in favor of any proposed or existing mortgagee or
purchaser of the premises or any encumbrance holder, or any proposed and
permitted assignee of Tenant's interest in this Lease or sublessee of Tenant, a
written estoppel certificate in recordable form certifying (i) whether the Lease
is in full force and effect; (ii) whether the Lease has been modified,
supplemented or amended and if so, stating such modifications, supplements and
amendments); (iii) the date to which the rent and other charges arising under
the Lease have been paid; (iv) the amount of any prepaid rent or credits due
Tenant, if any; (v) if applicable, that Tenant has accepted possession, and has
entered into occupancy, of the Premises, and the Commencement Date and the
corresponding expiration date; and (vi) whether or not, to the best knowledge of
the signer of such certificate, there has been a default on the part of the
other party in the performance of any covenant, agreement or condition contained
in this Lease and specifying, if any, each such unsatisfied condition and each
such default of which the signer may have knowledge. Any certification delivered
pursuant to the provisions of this Article may recite that it is intended to be
relied upon by the recipient.
40
(b) The failure of either party to execute,
acknowledge and deliver the estoppel certificate requested in accordance with
the provisions of this Article within the fifteen (15)business-day period above
shall constitute an acknowledgement by that party, which may be relied upon by
the recipient of the estoppel certificate, of the truth of such facts and
conditions as shall have been requested to be certified.
33. Brokers. Tenant and Landlord, respectively, represent and
warrant to each other that they have dealt with no broker, agent or other
intermediary who might be entitled to receive a commission in connection with
this Lease and that no such broker or other intermediary brought the Building
and/or the Premises to Tenant's attention, or, to the best of their knowledge,
otherwise participated in bringing about this Lease, and they respectively agree
to pay any commission, fee or charge due to any broker or other intermediary
claiming by, through or under them respectively, who introduced Tenant and
Landlord or brought the Building and/or the Premises to Tenant's attention or
otherwise participated in bringing about this Lease. Landlord and Tenant agree
respectively to indemnify each other with respect to any breach of the
representations and warranties contained in this Article.
41
34. Whole Agreement. This Lease and all riders and exhibits
attached to it and forming part of it set forth all of the promises, agreements,
warranties, representations and understandings between Landlord and Tenant
relative to the Premises and this leasehold. There are no promises, agreements,
conditions, warranties, representations or understandings, either oral or
written, between them other than as set forth in this Lease. Except as herein
otherwise provided, no subsequent alteration, amendment, understanding or
addition to this Lease shall be binding upon Landlord or Tenant unless reduced
to writing and signed by both them.
35. Security Interest. Notwithstanding that Landlord may have
a statutory lien for Rent against personal property of Tenant located on or in
the Building, Landlord agrees that within five (5) business days after its
receipt of a written request for the execution of a Landlord's Waiver in favor
of any vendor, lessor or party providing financing for any personal property of
Tenant located or to be located on or in the Building, Landlord will execute and
deliver the requested Landlord's Waiver to Tenant or otherwise in accordance
with Tenant's written instructions.
42
36. Extension Option.
(a) Tenant shall have three (3) options to extend
the Term of this Lease for one (1) additional period of one (1) year each
(individually, an "Extension Period"). The option for each additional one (1)
year term may be exercised by Tenant giving written notice to Landlord not later
than the date one hundred twenty (120) days before the then-current Termination
Date. Except as stated below in this Article, all of the terms and conditions of
this Lease in effect immediately prior to an Extension Period shall pertain
equally in all respects during that Extension Period.
(b) Within thirty (30) days after receipt by
Landlord of the notice from Tenant prescribed in subparagraph (a) above,
Landlord shall determine, in accordance with the provisions of Article 31 of
this Lease, the Fair Market Rent for the subject Extension Period, which in any
event shall not be less than the Annual Fixed Rent for the immediately preceding
Term, and shall not exceed a three percent (3%) increase above the Annual Fixed
Rent for the immediately preceding Term, and shall notify Tenant in writing of
the Fair Market Rent.
37. WAIVER OF JURY TRIAL. LANDLORD AND TENANT HEREBY MUTUALLY
WAIVE ANY RIGHTS WHICH EITHER OF THEM MAY HAVE TO REQUEST A JURY TRIAL IN ANY
PROCEEDING AT LAW OR IN EQUITY IN ANY COURT OF COMPETENT JURISDICTION.
43
38. Miscellaneous
(a) Governing Law. This Agreement shall be governed
by and construed under the laws of the State of Florida.
(b) Modification. This Lease may not be changed or
modified unless such change or modification is in writing and signed by both
Landlord and Tenant.
(c) Counterparts. This Lease may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears on it, and all of which shall together
constitute one and the same instrument. This Lease shall be binding when one or
more counterparts of it, individually or taken together, shall bear the
signatures of all of the parties reflected on this Lease as the signatories.
(d) No Waiver. Neither the failure nor any delay on
the part of either party to this Lease to exercise any right, remedy, power or
privilege under this Lease shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any one occurrence be construed as a waiver of any right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party granting that
waiver.
(e) Interpretation. No provision of this Lease shall
be interpreted for or against either party because that party or that party's
legal representative or counsel drafted such provision.
44
(f) Time. Time is of the essence of this Lease. In
computing the number of days for purposes of this Lease, all days shall be
counted, including Saturdays, Sundays and holidays; provided, however, that if
the final day of any time period provided in this Lease, shall end on a
Saturday, Sunday or legal holiday, then the final day shall extend to 5:00 p.m.
of the next full business day. For the purposes of this provision, the term
"holiday" shall mean a day other than a Saturday or Sunday on which banks in the
state in which the Real Property is located are or may elect to be closed.
(g) Severability. If any provision contained in this
Lease shall, to any extent, be invalid or unenforceable, the remainder of this
Lease (and the application of such provision to persons or circumstances, if
any, other than those in respect of which it is invalid or unenforceable) shall
not be affected by such invalidity or unenforceability, and each and every other
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
(h) Headings. The headings appearing in connection
with various portions of this Lease are for convenience only. They are not
intended to indicate all of the subject matter in the text and they are not to
be used in interpreting this Lease nor for any other purpose in the event of any
controversy. As used herein (a) the term "person" shall be deemed to mean a
natural person, a trustee, a corporation, a partnership and any other form of
legal entity; (b) all references in the singular or plural number shall be
deemed to have been made, respectively, in the plural or singular number as
well; (c) each and every document or other writing which is referred to herein
as being attached hereto or is otherwise designated herein as an exhibit hereto
is hereby made a part hereof.
45
(i) Binding Effect. This Lease shall be binding
upon and inure to the benefit of Landlord and Tenant, and their respective,
heirs, permitted successors and assigns, and legal representatives.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have executed or caused this Agreement of Lease to be
executed the day and year first written above.
Landlord:
WITNESS:
(Seal)
/s/ By: /s/ Xxxxxxx X. Xxxxxxx
------------------------- -----------------------
Xxxxxxx X. Xxxxxxx
WITNESS:
/s/
-------------------------
Tenant:
WITNESS: Xxxxxxxx'x, Inc. of Florida, a
Florida corporation
/s/ By: /s/ Xxxxxx X. Xxxxxxx
------------------------- -----------------------
Vice President
WITNESS:
Attest:
-----------------------
(Ass't Sec'y/Treasurer)
46
EXHIBIT "A"
47
