Exhibit 10.14
LEASE AGREEMENT
By and Between
The Xxxx Group of Boca
as Landlord
and
Janus Hotels and Resorts, Inc.
as Tenant
Dated as of: January 1, 2002
Property location: 0000 Xxxxxxxxx Xxxxxxxxx, X.X.
Xxxx Xxxxx, Xxxxxxx 00000
Condominium Xxxxx 000, 000, 000, 000 and part of 235
for 2,280 Square Feet
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TABLE OF CONTENTS
Page
Article 1-Premises................................................ 2
Article 2-Term.................................................... 2
Article 3-Rent.................................................... 3
Article 4-Possession; Quiet Enjoyment............................. 5
Article 5-Use of Premises......................................... 5
Article 6-Taxes................................................... 6
Article 7-Insurance............................................... 6
Article 8-Indemnification......................................... 7
Article 9 -Utilities and Services; Parking........................ 7
Article 10-Premises "As Is"....................................... 8
Article 11-Repairs and Maintenance................................ 8
Article 12-Alterations............................................ 9
Article 13 -Trade Fixtures........................................ 9
Article 14-Mechanics' Liens....................................... 9
Article 15-Damage and Destruction................................. 10
Article 16-Condemnation........................................... 10
Article 17-Environmental Provisions............................... 11
Article 18-Signs and Advertising.................................. 12
Article 19-Entry by Landlord...................................... 12
Article 20-Assignment and Subletting.............................. 12
Article 21-Subordination; Estoppel................................ 14
Article 22-Default................................................ 14
Article 23-Return of Premises; Holdover.......................... 17
Article 24-Notices................................................ 17
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Article 25-Broker's Commission.................................... 18
Article 26-Limitation of Landlord's Liability..................... 18
Article 27-Rules and Regulations.................................. 18
Article 28-Recording of Lease..................................... 19
Article 29-Miscellaneous.......................................... 19
Exhibits
Exhibit A - Premises
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LEASE AGREEMENT
This LEASE AGREEMENT ("Lease"), dated as of this 1st day of January, 2002, is
made by and between The Xxxx Group of Boca, a Florida General Partnership,
having an address at 0000 Xxxxxxxxx Xxxxxxxxx, X.X., Xxxx Xxxxx, Xxxxxxx 00000
("Landlord"), and Janus Hotels and Resorts, Inc., a Delaware corporation, having
an address at 0000 Xxxxxxxxx Xxxxxxxxx, X.X. Xxxx Xxxxx, Xxxxxxx 00000
("Tenant").
Article 1 - Premises
Section 1.01. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, for the term and subject to the covenants, agreements and conditions
hereinafter set forth, those certain premises located at 0000 Xxxxxxxxx
Xxxxxxxxx, X.X. identified as Premises (the "Premises") outlined in yellow on
Exhibit A attached hereto.
Section 1.02. The rentable area of the Premises is agreed to be 2,280 square
feet. The Premises are a portion of the building (the "Building") located at
0000 Xxxxxxxxx Xxxxxxxxx X.X. in Boca Raton, Florida and are known as
condominium units 231, 232, 233, 234 and 235 (collectively the "Property").
Section 1.03. Landlord hereby grants to Tenant the non-exclusive right to use
the common areas associated with the Building (the "Common Areas"), which are
defined herein as all areas and facilities outside the Premises contained in or
related to the Building that are provided for the general use and convenience of
Tenant and of other tenants of rental space in the Building and their respective
agents, invitees and customers. The Common Areas shall include, without
limitation, pedestrian walkways, restrooms, stairways, landscaped areas,
sidewalks, service corridors, throughways and private roads servicing the
Building. The Common Areas shall also include the parking facilities servicing
the Building (the "Parking Area").
Article 2 - Term
Section 2.01. The term (the "Initial Term") of this Lease shall have commenced
on January 1, 2002 (the "Commencement Date") and shall expire on December 31,
2004 (the "Expiration Date"), subject to an earlier termination upon default (as
hereinafter provided).
Article 3 - Rent
Section 3.01. Commencing on the Commencement Date and continuing through the
Expiration Date, Tenant agrees to pay to Landlord annual rent ("Base Rent") for
the use of the Premises, in lawful money of the United States in the amount of
$16.00 per square foot, payable in equal monthly installments of $3,040.00.
All installments of Base Rent shall be payable on the first day of each month in
advance.
Section 3.02. In addition to Base Rent, Tenant shall pay as additional rent
(hereinafter called "Addition Rent") Tenant's Pro Rata Share (as hereinafter
defined) (a) of all real estate taxes and assessments of any kind relating to
the Property excluding condominium fees which have been included in the Base
Rent and (b) of all Operating Costs (as hereinafter defined) incurred by the
Landlord. Landlord shall deliver to Tenant from time to time written estimates
with respect to Additional Rent payable hereunder and shall deliver to Tenant
monthly statements for an amount equal to 1/12 of such estimated Additional
Rent. Tenant shall pay such amounts upon receipt of such statements. As soon as
reasonably practicable after the end of each calendar year, Landlord shall
deliver to Tenant a reasonably detailed statement setting forth the items
included in Additional Rent for such prior calendar year. If Tenant shall have
paid less than the amount set forth in such statement, Tenant shall pay the
balance shown on such statement to Landlord within thirty (30) days after the
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date of such statement. If Tenant shall have paid more than the amount set forth
in such statement, Landlord shall credit such amount against future payments of
Additional Rent. Additional Rent and Base Rent are herein collectively referred
to as "Rent".
For purpose of this Lease, the term "Operating Costs" shall mean all costs
incurred and expenditures of whatever nature made by Landlord (including costs
and expenditures for outside contractors, and contractors who may be affiliated
with Landlord to the extent that the contracts are at reasonable rates
consistent with the type and quality of the services rendered) in the operation
and management, for repairs, replacements, and improvements, or for cleaning and
maintenance of the Property including, without limitation, parking areas,
driveways and walkways on or related to the Property, related equipment,
facilities and appurtenances, elevators, and cooling and heating equipment owned
by the Landlord. Operating Costs shall include, but not be limited to, the
following:
(i) sales, federal social security, unemployment and old age taxes and
contributions and state unemployment taxes and contributions accruing to and
paid on account of all employees who are employed in, about or on account of the
Property (other than employees of independent contractors);
(ii) all charges, costs, expenses and rates connected with or for or on
account of (a) water supplied to the Property and all sewer use charges, (b)
heat, ventilation, air conditioning, and security services supplied to the
Property, (c) janitorial expenses and the cleaning of the Property, surrounding
areaways and windows, whether performed by Landlord's employees or by persons or
firms under contract with Landlord or Landlord's managing agent, (d) upkeep and
maintenance of all elevators in the Property (if any), (e) the upkeep,
maintenance and replacement of landscaping, plant material and decoration inside
and outside of the Property, (f) the maintenance and cleaning of all parking
area, driveways and walkways, (g) the shoveling, plowing and removal of snow,
ice, rubbish and debris from the Property, (h) the painting and general repair
of the Property, (i) building supplies, (j) general office and administrative
expenses (including without limitation a management fee, office expenses and
supplies, and date processing), (k) legal and accounting expenses and (l)
licenses, permits and other governmental charges;
(iii) all wage and salary costs including the cost of all employee
benefits for all employees who are employed in, about or on account of the
Property and all management fees or expenses, whether based upon rents or
otherwise; and the imputed costs equal to the loss of rent by Landlord for
making available to the managing agent space for an office within the Property;
and
(iv) all charges, costs, expenses and rates connected with electric
current supplied to the Property, including the cost of electric current for any
elevators, lights, air conditioning, heating, and electrical alarm systems but
not including electric current which is either paid for directly to the utility
by the user/tenant or separately billed by and paid to the Landlord relating to
the user/tenant's individual consumption;
(v) premiums for fire, casualty, rent loss, liability and all other
insurance as may from time to time be carried by Landlord in connection with the
Property, (as deemed appropriate by Landlord) excluding premiums paid by
tenants;
(vi) all other expenses or costs which, in accordance with generally
accepted accounting principles would be considered as an expense of operating,
managing, maintaining or repairing the Property.
Section 3.03. It is the purpose and intent of Landlord and Tenant that the Rent
shall be absolutely net to Landlord and that Tenant shall pay, without notice or
demand, and without abatement, deduction or setoff, and shall hold harmless and
indemnify Landlord from and against all costs, charges, duties, rates, licenses
and permit fees, real and personal property taxes, levies and assessments,
insurance premiums, and expenses relating to the Premises which may arise or
become due during the Lease Term, other than (a) expenses incurred by or at the
instance of Landlord which Tenant does not agree to pay or reimburse Landlord
for under the provisions of this Lease and (b) payment of any amounts secured
by liens on the Premises created by Landlord. In the event of any nonpayment of
any of the foregoing, Landlord shall have, in addition to all other rights and
remedies, all of the rights and remedies provided for herein or by law in the
case of nonpayment of net rent.
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Section 3.04. All payments of Rent required to be made hereunder shall be made
payable to and sent to Landlord at the address set forth in Article 19 hereof.
Section 3.05. A late fee of 5% of the overdue amount will be charged for Rent
received after the third day of the month for payments of Base Rent or after the
thirty-third day after the statement is sent by Landlord for Additional Rent.
Section 3.06. Upon execution of this Lease, Tenant shall deposit with Landlord
the sum of None (the "Deposit"), which shall be held as a security for Tenant's
performance as herein provided. In no event shall the Security Deposit be
considered a measure of liquidated damages. All or any part of the Security
Deposit may be applied by Landlord in full or partial satisfaction of any
default by Tenant. If all or any part of the Security Deposit is so applied,
Tenant upon demand will restore the Security Deposit to its full amount. At the
expiration of the Lease and upon the satisfaction by Tenant of its obligations
hereunder the balance of the Security Deposit, and any accrued interest thereon,
will be paid over to Tenant.
Article 4 - Possession: Quiet Enjoyment
Section 4.01. Landlord shall, on or before the Commencement Date, deliver
possession of the Premises to Tenant, including completed leasehold improvements
as set forth in Article 10 hereof, in good condition and repair, and in material
compliance with all governmental codes, laws, ordinances, regulations and
requirements applicable to the Premises and to Tenant's use thereof.
Section 4.02. Landlord covenants and agrees to keep Tenant in quiet possession
and enjoyment of the Premises during the Term, and warrants that it has full
power and authority to lease the Premises to Tenant for the Term.
Article 5 - Use of Premises
Tenant shall be permitted to use the Premises for the purposes of general office
use (the "Permitted Use"). In the event Tenant is prohibited from using the
Premises for the Permitted Use for any reason other than the willful acts or
negligence of Tenant, Tenant shall have the right to terminate this Lease upon
thirty (30) days written notice to Landlord, whereupon Landlord shall promptly
refund or cause to be refunded to Tenant any advance Rent, the Deposit and/or
other monies paid by Tenant.
Article 6 - Taxes
Section 6.01. Tenant shall pay before delinquency all taxes that become payable
during the Initial Term or the Term which are levied or assessed upon Tenant's
equipment, furniture, fixtures and Tenant's other personal property installed or
located in or on the Premises.
Section 6.02. Landlord shall pay before delinquency all real property and/or
rental taxes which are now or hereafter imposed upon the Property and/or the
Building by any governmental agency or authority having jurisdiction over the
Property, or any net income, franchise, estate, inheritance or transfer or any
net income, franchise, estate, inheritance or transfer tax imposed upon the
Property and/or Building, subject to whatever rights. Landlord shall be
reimbursed by the Tenant for payment of all or a portion of such taxes as
provided in Article 3.
Article 7 - Insurance
Section 7.01. Tenant shall maintain, throughout the Term, a policy of
comprehensive liability insurance, naming Landlord as an additional name
insured, against all claims in connection with Tenant's Permitted Use or
occupancy of the Premises. Such policies shall have limits of liability of not
less than $1,000,000 for personal injury or death of any one person, not less
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than $1,000,000 for any one incident, and not less than $50,000 for property
damage. Tenant shall furnish Landlord, upon written demand therefor, a copy of
such policy or a certificate evidencing such insurance. Such insurance policy
shall provide at least thirty (30) days cancellation notice to Landlord.
Section 7.02. Landlord shall cause to be maintained, throughout the Term (a) a
policy of comprehensive liability insurance with respect to the Property, and
(b) policies of insurance covering damage to the Building, excluding Tenant's
fixtures, or equipment, in the amount of the full replacement value thereof,
providing protection against all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief, and "all risk". Landlord
shall furnish Tenant, upon written demand therefor, a copy of such policies or a
certificate evidencing such insurance.
Section 7.03. Landlord and Tenant hereby mutually waive their respective rights
of recovery against each other for any loss of, or damage to, either party or
its property, where such loss or damage is insured by an insurance policy
required to be in effect at the time of such loss or damage; and they further
mutually agree that their respective insurance companies shall have no right of
subrogation against the other on account thereof. Each party shall obtain any
special endorsements, if required by its insurer, whereby the insurer waives its
rights of subrogation against the other party hereto. The provisions of this
Article 7 shall not apply in those instances in which waiver of subrogation
would cause either party's insurance coverage to be voided or otherwise made
uncollectible.
Article 8 - Indemnification
Section 8.01. Tenant shall hold Landlord harmless from and defend Landlord
against any and all claims or liability for any injury or damage to any person
or property whatsoever: (a) occurring in, on, or about the Premises; and (b)
occurring in, on, or about the Building, when such injury or damage shall be
caused in part or in whole by the act, neglect, fault, or omission of and duty
with respect to the same, by Tenant, its agents, employees, or invitees.
Section 8.02. Landlord shall hold Tenant harmless from and defend Tenant against
any and all claims or liability for any injury or damage to any person or
property whatsoever: (a) occurring in, on or about the Property other than the
Premises; and (b) occurring in, on, or about the Premises, when such injury or
damage shall be caused in part or in whole by the act, neglect, fault, or
omission of any duty with respect to the same, by Landlord, its agents,
employees or invitees.
Article 9 - Utilities and Services; Parking
Section 9.01. Landlord shall cause water and sewage service to be furnished to
the Premises for the use of Tenant. Tenant shall reimburse Landlord for Tenant's
Pro Rata Share of the cost of such water and sewage service as provided in
Article 3 hereof. Tenant shall, at its sole cost and expense, pay or cause to be
paid all charges (including any deposits) for gas, electricity, telephone or
other services or utilities furnished to the Premises or to Tenant with respect
to its operation therein during the Term to the extent that such utilities shall
be separately metered and/or directly billed to Tenant by the respective
utilities. To the extent that any such utilities are metered and/or billed to
more than one tenant (including Tenant) Tenant shall pay its Pro Rata Share of
such amounts.
Section 9.02. Tenant shall have the right to park vehicles in accordance with
the parking requirements of the city or town in which the Premises are located
free of charge and on an unreserved basis, in that portion of the Parking Area
located adjacent to the Premises. Landlord may from time to time establish
reasonable rules and regulations for the Parking Area, and Tenant agrees to
observe the same upon being advised thereof. Any and all parking of motor
vehicles in said Parking Area shall be at the risk of the owner of the same.
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Article 10 - Premises "As Is"
Tenant accepts the Premises "as is" based upon Tenant's own investigation with
no representation from Landlord.
Article 11 - Repairs and Maintenance
Section 11.01. Subject to the provisions in this Lease requiring Tenant to
reimburse Landlord for Tenant's Pro Rata Share of the cost of such repairs and
maintenance and except as provided in Section 11.02, Landlord shall do the
following:
(a) Maintain, in good condition and repair during the Term all
structural components of the Property, including, without limitation, the
foundation, roof, exterior walls of the Building, and the plumbing, electrical,
heating and air-conditioning systems which are a part of and/or service the
Premises except for those owned by the Tenant;
(b) Maintain and keep clean all Common Areas, including the Parking
Area, remove snow therefrom with reasonable dispatch when required, provide
adequate lighting and drainage for the Parking Area during normal business
hours, and maintain all landscaping in a neat and orderly condition; and
(c) Cause trash and refuse to be removed daily or as often as is
reasonably necessary from the Building so as to avoid unreasonable accumulations
of the same. Section 11.02. Tenant, as its sole expense, shall do the following:
(a) Make all interior repairs to the Premises during the Term which are
necessary to keep the Premises in substantially as good condition as on the
Commencement Date, reasonable wear and tear and damage by fire or other casualty
excepted;
(b) Be responsible for providing janitorial services to the Premises
consistent with those provided in buildings similar in quality to the Building.
Article 12 - Alterations
Tenant shall make no alterations, installations, additions or improvements
("additions") in or to the Premises in excess of $5,000, without the prior
written consent of Landlord. The additions shall be made only by contractors or
mechanics approved by Landlord at Tenant's expense. Tenant shall install and
maintain the interior decoration and appearance in a first class manner.
Notwithstanding the foregoing, Landlord may disapprove any additions or
decorative changes which in the opinion of Landlord's architect harm the
architectural integrity of the Building or conflict with the use of the rest of
the Building. All such permanent additions shall be deemed to be part of the
Building and to belong to Landlord at the end of the Term.
Article 13 - Trade Fixtures
All equipment (other than exhaust vents and fans and heating, air conditioning
and ventilating system), business and office machines, furniture and other items
of personal property (except additions including without limitation walls,
floors, ceilings, wiring, plumbing, sewerage, and water pipes and lines) owned
or installed by Tenant in the Premises at its expense shall remain the property
of Tenant, (and any taxes thereon and risk of loss shall be borne by Tenant, and
may be removed by Tenant at any time provided that Tenant shall at its expense,
repair any damage, holes or openings caused or occasioned by such removal
whether by Tenant or Landlord as hereafter provided and provided that during the
Term such removal does not adversely affect the appearance of the Premises). Any
such personal property of the Tenant left upon the Premises at the end of the
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Term may, at the election of Landlord and after reasonable notice to Tenant, (a)
be removed at Tenant's expense and sold, stored or discarded; or (b) be deemed
to have been abandoned and belong to the Landlord.
Article 14 - Mechanic's Liens
Tenant shall keep the Property, the Building and the Premises free from and
promptly remove any mechanic's liens and indemnify, defend, and hold Landlord
harmless from any and all liability or expense of any kind and description which
may arise out of or be connected in any way with Tenant's additions. Landlord's
consent to the construction of additions shall not be deemed to be such consent
of the Landlord or acknowledgement that its estate is holden for the payment for
such additions as would bind the interest of the Landlord under applicable
mechanic's lien law.
Article 15 - Damage and Destruction
Section 15.01 If the Premises are damaged by fire, earthquake, act of God or the
elements, Landlord shall forthwith repair the same, subject to the provisions of
this Section hereinafter set forth and provided such repairs can be made within
ninety (90) days under applicable state, federal and city and county laws and
regulations. This Lease shall remain in full force and effect, except that if
there shall be damage to the Premises and such damage is not the result of the
negligence or willful misconduct of Tenant or Tenant's agents, employees or
invitees, a proportionate reduction in Rent shall be allowed Tenant in the for
such part of the Premises as shall be rendered unusable by Tenant in the conduct
of its business during the time such part is so unusable. If such repairs cannot
be made within ninety (90) days, either Landlord or Tenant may, upon written
notice to the other within ninety (90) days after the date of such fire or other
casualty, repair or restore such damage, this Lease continuing in full force and
effect but the Rent to be proportionately reduced as hereinabove provided. If
Landlord elects not to make such repairs which cannot be made within ninety (90)
days, then either Landlord or (provided the damage affects the Premises or
Common Areas necessary to Tenant's occupancy) Tenant may, by written notice to
the other given not less than sixty (60) days and not more than ninety (90) days
after the date of such fire or other casualty, terminate this Lease as of the
date of such fire or other casualty.
Section 15.02. Landlord shall not be required to repair any injury or damage by
fire, earthquake, act of God or the elements, or to make any repairs or
replacements, of any improvements installed in the Premises by Tenant, except
for the portion of such improvements the cost of which was borne by Landlord;
and Tenant shall, at Tenant's sole cost and expense, repair and restore its
portion of such improvements.
Section 15.03. In the event the Premises or the Building is totally destroyed or
rendered wholly unusable for Tenant's Permitted Use, this Lease shall terminate
and Tenant shall only be liable for Rent up to the date of such total
destruction.
Article 16 - Condemnation
If the Premises and/or the Building, or any portion thereof, are taken or
condemned under the power of eminent domain, or by purchase in lieu of such
taking or condemnation, and as a result thereof the use and enjoyment of the
Premises by Tenant are materially impaired, Tenant may, at its sole option, but
without prejudice to any rights and claims which it may otherwise have on
account of such taking, condemnation or sale, terminate this Lease upon written
notice to Landlord. If Tenant does not elect to terminate this Lease, the Rent
reserved for the remainder of the Term shall be reduced in proportion to the
portion of the Premises taken, condemned or sold, having due regard to the
nature and extent of the injury caused thereby to the Premises and to Tenant's
Permitted Use thereof, and such reduction in Rent shall be without prejudice to
any rights and claims which Tenant may otherwise have on account of such taking
or condemnation or sale. Landlord reserves to itself, and Tenant assigns to
Landlord, all rights to damages accruing on account of any taking under the
power of eminent domain or by reason or any act or any public or quasi-public
authority for which damages are payable. Tenant agrees to execute such
instruments of assignment as may be reasonably required by Landlord in any
proceeding, except it is agreed and understood, however, that Landlord does not
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reserve to itself, and Tenant does not assign to Landlord, any damages
specifically payable for Tenant's trade fixtures, furniture, moving expenses,
and/or Tenant's leasehold improvements.
Article 17 - Environmental Provisions
Section 17.01. Tenant represents, warrants and covenants that it has obtained,
is in compliance with, and will continue to comply with all permits, licenses
and other authorizations which are required under all environmental laws and
regulations, including laws relating to emission, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial, toxic
or hazardous substances or wastes into the environment (including, without
limitation, air, surface water, groundwater, or land), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes, except to the extent failure to have
any such permit, license or authorization does not have a material adverse
effect on the financial condition, operations, prospects, or business of the
Tenant.
Section 17.02. Tenant shall comply with the requirements of all material
federal, state, and local environmental laws relating to the Premises; shall
immediately notify the Landlord in the event of any material spill, pollution or
contamination affecting the Premises from oil, friable asbestos, hazardous
waste, hazardous material, or other waste or material regulated or limited by
applicable federal, state, or local environmental law or regulation ("Hazardous
Material"); and shall immediately forward to the Landlord any notices relating
to such matters received from any governmental agency.
Section 17.03. Tenant shall immediately contain and remove at its sole cost and
expense any Hazardous Material found on the Premises if caused by Tenant or
anyone acting under Tenant; such work must be done in compliance with applicable
laws.
Section 17.04. Tenant will indemnify, defend, and hold the Landlord harmless
from and against any claim, cost, damage (including without limitation
consequential damages), expense (including without limitation reasonable
attorneys' fees and expenses), loss, liability, or judgement now or hereafter
arising as a result of any claim for environmental cleanup costs, any resulting
damage to the environment and any other environmental claims against the Tenant,
the Landlord, or the Premises relating to any act or failure to act by Tenant or
anyone claiming under Tenant. The provisions of this Section 17.04 shall
continue in effect and shall survive (among other events) any termination or
expiration of this Lease.
Article 18 - Signs and Advertising
Tenant shall not place any sign on or around the Premises without the advance
written consent of Landlord. Landlord agrees to maintain a uniformity of all
Signage for the Building and shall not permit advertising matter of any kind to
be placed on the Building. Signs identifying the Building or any owners or
tenants therein shall not be deemed to be advertising.
Article 19 - Entry by Landlord
Landlord and its agents shall have the right to enter into and upon the Premises
at all reasonable times for the purpose of examining and exhibiting the same,
for making any necessary repairs or alterations thereto, for the purpose of
supplying any service, or building maintenance to be provided by Landlord
hereunder; provided however, that Landlord shall advise Tenant a reasonable time
in advance thereof, and, provided further, that the operations of Tenant shall
not be interfered with unreasonably thereby.
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Article 20 - Assignment and Subletting
Section 20.01. Tenant will not assign, sublet, pledge, mortgage, or otherwise
transfer this Lease or the whole or any part of the Premises without in each
instance having first received the express written consent of Landlord. In any
case where Landlord shall consent to an assignment or subletting, Tenant shall
remain primarily liable for Tenant's obligations hereunder. In the event that
the Premises are sublet or this Lease is assigned, Landlord shall be paid and
have the benefit of any and all rentals and payments in excess of the rental
rates and other amounts required to be paid by Tenant pursuant to this Lease. It
shall be a condition to the validity of any assignment or subletting that the
terms of any sublease or assignment shall not be more favorable than the terms
of this Lease and shall not be more favorable than the terms which Landlord is
then offering for new rental space in the Building or for existing rental space
in the Building which will be coming available. The transfer of a majority
interest in the capital stock of any corporate Tenant or a majority of the
interest in any partnership Tenant, however accomplished, and whether in a
single transaction or in a series of related or unrelated transactions, shall be
deemed an assignment of this Lease.
Section 20.02. If Tenant (which term for the purposes of this Section 20.02
shall mean the authorized representative of Tenant's estate in Bankruptcy)
assumes this Lease and proposes to assign the same pursuant to the provisions of
the Bankruptcy code, 11 U.S.C. 101 et seq., or any future statute in amendment
or in substitution thereof (the "Bankruptcy Code") to any person or entity who
shall have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to the Tenant, then notice of such proposed assignment, setting forth
(i) the name and address of such person or entity, (ii) all of the
terms and conditions of such offer, and (iii) adequate assurance to be
provided Landlord to assure such person's or entity's future
performance under this Lease, including, without limitation, the
assurance referred to in Section 365 (b) (3) of the Bankruptcy Code,
shall be given to Landlord by Tenant no later than twenty (20) days
after receipt by the Tenant, but in any event no later than ten (10)
days prior to the date that Tenant shall make application to a court of
competent jurisdiction for authority and approval to enter into such
assignment and assumption. Landlord shall thereupon have the prior
right and option, to be exercised by notice to Tenant at any time prior
to the effective date of such proposed assignment, to accept an
assignment of this Lease upon the same terms and conditions and for the
same consideration, if any, as the bona fide offer made by such person
or entity, less any brokerage commissions which may be payable out of
the consideration to be paid by such persons or entity for the
assignment of this Lease.
In the event this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, then any and all monies or other
consideration paid, payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and shall be promptly paid to or turned over to
Landlord. Any person or entity to which this Lease is assigned, pursuant to the
provisions of the Bankruptcy Code, shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall, upon demand, execute and
deliver to Landlord an instrument confirming such assumption.
Article 21 - Subordination; Estoppel
Section 21.01. This Lease will be subject and subordinate to any mortgage of the
Premises now existing or hereafter executed by Landlord or its successors and
assigns. Such subordination is automatic and is effective without any further
act of Tenant, but Tenant hereby agrees from time to time on request from
Landlord to execute and deliver any instruments that may be required by any
lender to confirm the subordination provided for herein. Any mortgagee may elect
that this Lease shall have priority over its mortgage, and upon notification of
such election by such mortgagee to Tenant, this Lease shall be deemed to have
priority over such mortgage whether this Lease is dated prior to or subsequent
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to the date of such mortgage. Tenant hereby appoints Landlord, with full power
of substitution, as Tenant's attorney-in-fact (which appointment shall be
irrevocable and shall be deemed to be coupled with an interest) to execute and
deliver any such instrument for and in the name of Tenant.
Section 21.02. Tenant, within ten (10) days after written request from Landlord
shall furnish a written certificate stating whether this Lease is in full force
and effect, if any amendments have been executed, if any default exist by
Landlord or by Tenant hereunder and the nature of any alleged default, if Tenant
is then claiming any offsets, counterclaims or defenses to this Lease, and any
other matter which may be reasonably requested.
Article 22 - Default
Section 22.01. If any of the following shall occur, Tenant shall be deemed in
default of this Lease: (a) if Tenant shall fail to pay any Rent or other sum
when and as the same becomes due and payable and such failure shall continue for
more than ten (10) days; (b) if Tenant shall fail to perform any of the other
duties required to be performed by Tenant under this Lease and such failure
shall continue for more than thirty (30) days after receipt of written notice
thereof from Landlord; provided, however, that if such cannot reasonably be
performed within such thirty (30) day period, Tenant shall have such additional
time as is reasonably necessary to perform such duty; (c) if Tenant shall make a
general assignment for the benefit of creditors, admit in writing its inability
to pay its debts as they become due, file a petition in bankruptcy, have an
order of relief entered against it, or file or have filed against Tenant a
petition seeking any reorganization, receivership, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation.
Section 22.02. In the event of default, to the extent not prohibited by
applicable law it will be lawful for the Landlord thereupon, or at any time
thereafter, upon written notice of termination to Tenant, and with or without
process of law (forcibly if necessary) enter into and upon the Premises or any
part thereof in the name of the whole or mail a notice of termination addressed
to Tenant at the Premises, and repossess the same as of Landlord's former estate
and expel Tenant and those claiming through or under Tenant and remove its and
their effects (forcibly, if necessary) without being deemed guilty of any manner
of trespass and without prejudice to any remedies which might otherwise be used
for arrears of rent or prior breach of covenant, and upon such entry or mailing
as aforesaid this Lease shall terminate, Tenant hereby waiving all statutory
rights (including without limitation rights of redemption, if any, to the extent
such rights may be lawfully waived) and Landlord, without notice to Tenant, may
store tenants effects, and those of any person claiming through or under Tenant
at the expense and risk of Tenant, and, if Landlord so elects, may sell such
effects at public auction or private sale and apply the next proceeds to the
payment of all sums due to Landlord from Tenant if any, and pay over the
balance, if any, to Tenant.
Section 22.03. Upon the termination of this Lease under any provision contained
in Section 22.01, Tenant shall nevertheless remain liable for all Rent then due
and payable hereunder as of the date of the termination of this Lease, together
with all damages due or sustained by Landlord prior to such termination or
arising as a result of events or conditions occurring or in existence during the
term hereof and prior to or after such termination, and all reasonable costs,
fees and expenses incurred by Landlord in pursuit of, or in the collection of
its remedies hereunder or under any law, or in leasing or attempting to lease
all or any portion of the Premises to others from time to time (including,
without limitation, all repossession costs, brokerage commissions, reasonable
attorney's fees in connection with the foregoing matters, and all costs of such
alterations, repairs, and decorations as Landlord, in its reasonable judgement,
considers necessary or advisable in connection with such reletting)(all such
rent, damages, costs, fees and expenses being referred to herein as the
"Termination Damages") and, in addition thereto, additional damages (the
"Liquidated Damages"), which, at the election of Landlord, shall be either of
the following:
(a) an amount or amounts equal to all Rent which, but for termination,
would have been payable to Landlord over the remainder of the Term, reduced by
the amount of Rent, if any, which the Landlord shall actually receive from time
to time during such period from others to whom the Premises may be rented from
time to time. The Landlord shall not be obligated to attempt to collect any
rental or other payment obligation from any other person renting all or any
portion of the Premises by litigation or otherwise. Such Liquidated Damages
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shall be computed and payable in monthly installments, with interest on any
amount in arrears at the rate of two percent (2%) per annum in excess of the
Xxxxxxx Bank Prime Rate, in arrears, on the first day of each calendar month
following termination of the Lease and shall continue to become due and payable
in monthly installments until the date on which the Term would have expired but
for such termination; and any and all amounts due and payable hereunder,
including any amount in arrears, shall be a continuing liability of Tenant
thereafter, and interest thereon shall accrue at the rate of two percent (2%)
per annum in excess of the Xxxxxxx Bank Prime Rate, until Tenant shall discharge
same by payment to Landlord of the amount due, and any suit or action brought
from time to time to collect any such Liquidated Damages for any month or months
shall not in any manner prejudice the right of Landlord to collect any
Liquidated Damages for any subsequent month or months by a similar proceeding;
or
(b) an amount equal to the present value (as of the date of such
termination) of all Rent which, but for termination of this Lease, would have
become due during the remainder of the Term, reduced by an amount equal to the
fair rental value of the Premises over the remainder of the Term, as determined
by an independent real estate appraiser named by Landlord, in which case such
Liquidated Damages shall be payable to Landlord in one lump sum on demand made
by Landlord at any time and shall bear interest at the rate of two percent (2%)
per annum in excess of the Xxxxxxx Bank Prime Rate from the date of termination
until paid. For purposes of this clause (ii), present value shall be computed by
the application of a discount rate equal to the discount rate in effect at the
Federal Reserve Bank nearest to the location of the Premises as of the date of
determination.
Section 22.04. In addition, if this Lease is terminated, Landlord may, but shall
have no obligation to, relet the Premises or any part thereof, alone or together
with other premises, for such term or terms (which may be greater or less than
the period which would have constituted the balance of the Term) and on such
terms and conditions (which may include concessions for free rent and
alterations of the Premises) as Landlord, in its uncontrolled discretion, may
determine, but Landlord shall not be liable for, nor shall Tenant's obligations
hereunder be diminished by reason of, failure by Landlord to relet the Premises
or any failure by Landlord to collect any rent due upon such reletting, and
Tenant, to the extent Tenant may lawfully do so, hereby waives all right to
require Landlord to relet the Premises.
Section 22.05. Nothing contained in this Lease shall, however, limit or
prejudice the right of Landlord to prove for and obtain in proceedings under any
federal or state laws relating to bankruptcy or insolvency or reorganization or
arrangement by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater than the amount of the loss or damages referred to above.
Section 22.06. Any and all rights and remedies which Landlord may have under
this Lease, and at law and equity, shall be cumulative and shall not be deemed
inconsistent with each other, and any two or more of all such rights and
remedies may be exercised at the same time insofar as permitted by law.
Section 22.07. The waiver by either party of any default shall not be deemed to
be a waiver of any subsequent default under the same, or under any other term,
covenant or condition of this Lease. The subsequent acceptance of any Rent by
Landlord shall not be deemed to be a waiver of any preceding default by Tenant
under any term, covenant or condition of this Lease, other than the failure of
Tenant to pay the particular Rent so accepted, regardless of Landlord's
knowledge of such preceding default at the time of acceptance of such Rent.
Article 23 - Return of Premises; Holdover
Section 23.01. At the expiration or other termination of the Term, Tenant will
remove from the Premises its property and that of all claiming under it and will
peaceably yield up to Landlord the Premises in as good condition in all respects
as the same were at the commencement of this Lease, except for the ordinary wear
and tear, damage by the elements, by any exercise of the right of eminent domain
or by any public or other authority, or damage not caused by Tenant and with
respect to which Tenant is not required to maintain insurance hereunder.
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Section 23.02. If Tenant remains in possession of the Premises after the
expiration of the Term, said tenancy shall be month-to-month pursuant to Section
23.02, and should Landlord at any time decline to accept the Rent at the rate
specified herein, Tenant's holding over thereafter will be deemed to be as a
tenant-at-sufferance.
Article 24 - Notices
All notices which are required to be given by either party hereunder shall be in
writing, sent by certified or registered mail, postage prepaid, return receipt
requested, and addressed to the parties at the following addresses:
LANDLORD: The Xxxx Group of Boca
0000 Xxxxxxxxx Xxxxxxxxx X.X.
Xxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Partner (000) 000-0000
TENANT: Janus Hotels and Resorts, Inc.
0000 Xxxxxxxxx Xxxxxxxxx X.X.
Xxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Chairman of the Board
(000) 000-0000
or to such other addresses and to such other persons as the parties may from
time to time designate in writing. The time of giving of any such notice shall
be deemed to be three (3) days after such notice is mailed.
Article 25 - Broker's Commissions
The parties represent no brokers were involved in this transaction.
Article 26 - Limitation of Landlord's Liability
Tenant shall neither assert nor seek to enforce any claim for breach of this
Lease against any of Landlord's assets other than Landlord's interest in the
Property and in the rents, issues and profits thereof. No partner, trustee,
stockholder, officer, director, employee or beneficiary of Landlord shall be
personally liable under the Lease, and Tenant shall look solely to Landlord's
interest as the landlord in the Property in pursuit of its remedies upon an
event of default hereunder so that the general assets of Landlord and of the
individual partners, trustees, stockholders, officers, employees or
beneficiaries of the Landlord shall not be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Tenant. In the
event Landlord sells or otherwise transfers its interest in the Property (or a
part thereof which includes the Premises), then from and after such sale or
other transfer Landlord shall be released from liability hereunder and Tenant
shall look solely to the interests in the Property of Landlord's transferee for
the performance of all of the obligations of Landlord hereunder.
Article 27 - Rules and Regulations
Tenant shall abide by the rules and regulations from time to time established by
Landlord with respect to the Building and the Property. In the event that there
shall be conflict between such rules and regulations and the provisions of this
Lease, the provisions of this Lease shall control.
Article 28 - Recording of Lease
The parties hereto agree that this Lease shall not be recorded, but the Landlord
and Tenant hereby agree upon request of either party to enter into a notice of
lease in recordable form, setting forth the names of the parties, describing the
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Premises, specifying the Term, and such other provisions, except rental
provisions, with respect to the Lease as will put on notice any third party of
the existence of this Lease.
Article 29 - Miscellaneous
Section 29.01. The words "Landlord" and "Tenant", as used herein, shall include
the plural as well as the singular. Words used in the masculine gender herein
shall include feminine and neuter forms thereof.
Section 29.02. The covenants and conditions contained herein shall be binding
upon and inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties hereto.
Section 29.03. The article headings in this Lease are for convenience only, and
shall not limit or otherwise affect the meaning of any provisions hereof.
Section 29.04. Time is of the essence in each and every provision of this Lease.
Section 29.05. The invalidity or unenforceability of any provision of this Lease
shall not affect any other provision hereof.
Section 29.06. Should either party hereto commence an action against the other
to enforce any obligation under this Lease, the prevailing party shall be
entitled to recover reasonable attorneys' fees and expenses from the other.
Section 29.07. This Lease shall be construed and enforced in accordance with the
laws of the State of Florida.
Section 29.08. This Lease constitutes the entire agreement between the parties
hereto and may not be modified in any manner other than by written agreement,
executed by all of the parties hereto or their successors in interest. No prior
understanding or representation of any kind made before the execution of this
Lease shall be binding upon either party unless incorporated herein.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the date first set forth above:
LANDLORD: The Xxxx Group of Boca,
a Florida general partnership
By:
------------------------------
Xxxxx X. Xxxx, Partner
TENANT: Janus Hotels and Resorts, Inc.,
a Delaware corporation
By:
-------------------------------
Xxxxx X. Xxxx, Chairman of the Board
15
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this ______ day of January,
2002, by Xxxxx X. Xxxx, as General Partner of The Xxxx Group of Boca, a Florida
General Partnership. He is personally known to me or has produced a Florida
driver's license as identification and did take an oath.
Notary Public:
Signature:______________________________
Print Name:_____________________________
(Notarial Seal) My Commission expires:
STATE OF _______________)
) SS:
COUNTY OF_______________)
The foregoing instrument was acknowledged before me this ______ day of January,
2002 by Xxxxx X. Xxxx, as Chairman of the Board of Janus Hotels and Resorts,
Inc., a Delaware corporation. He is personally known to me or has produced a
Florida driver's license as identification and did take an oath.
Notary Public:
Signature:______________________________
Print Name:_____________________________
(Notarial Seal) My Commission expires:
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