Exhibit 10.10
THIS LEASE made the lst day of December, 1980 between STARKOFF ASSOCIATES,
a Florida general partnership, hereinafter referred to as "Lessor", and CRC
PRESS, INC., a Florida corporation, hereinafter referred to as "Lessee",
WITNESSETH:
ARTICLE 1
DEFINITIONS; MISCELLANEOUS
SECTION 1.01: For the purpose of this lease, unless the context otherwise
plainly requires, the following words and phrases shall have the following
meanings:
(a) "Basic Rent" refers not only to the rental specified in Sec. 2.03 (a)
but also to the adjustments thereto, if any, made pursuant to Sec. 2.03 (b) and
(c);
(b) "Demised Premises" shall mean, collectively, the Land and Structures,
unless a different meaning is plainly stated;
(c) "Event of Default" shall have the meaning set forth in Article 15
hereof;
(d) "Fee Mortgage" shall mean any Mortgage constituting a lien upon all or
any interest in the Land or the Structures, or both, to which this lease is
subordinate;
(e) "Fee and Leasehold Mortgage" shall mean a Fee Mortgage which is also a
Leasehold Mortgage;
(f) "Institution" shall mean a bank; a savings and loan association; a
trust company; an insurance company; a college, university or other educational
institution not for profit (organized under the laws of Florida, New York,
Massachusetts,
1
Connecticut, Pennsylvania or New Jersey); or a governmental or public employees'
welfare, pension, profit-sharing, endowment or retirement fund, plan or system;
provided that any such institution shall, if acting as a Trustee, be included in
this definition only if the beneficiary of the trust is itself an Institution;
(g) "Institutional" shall mean originally payable to, and at all times
held by, an Institution;
(h) "Land" shall mean the real property situated, lying and being in the
County of Palm Beach, Florida, described on Exhibit "A" annexed to and made a
part hereof;
(i) "Lease Year" shall mean a one-year period beginning on the Use Date or
an anniversary thereof;
(j) "Leasehold Mortgage" shall mean any pledge, assignment or security
agreement constituting a lien on the rental, proceeds and avails of this Lease;
(k) "Mortgage" shall include either or both an indenture of mortgage and a
deed of trust, held by an Institution;
(l) "Mortgagee" shall mean the then holder of a Mortgage;
(m) "Property" shall mean the Demised Premises and the fixtures, machinery
and equipment to which Section 13.03B applies, collectively;
(n) "Structures" shall mean the buildings, parking facilities and other
improvements described in Article 13, as from time to time repaired, added to
and altered pursuant to this Lease, and personal property described in Paragraph
B of Section 13.03;
2
(o) "Termination of this Lease" shall mean the expiration of the Lease
Term, or to the termination of the term of this Lease prior to its expiration
pursuant to the provisions hereof, whichever first occurs;
(p) "Unencumbered" shall mean without regard to any mortgage or lien or
claim, and without regard to this Lease or any lease or tenancy; and
(q) "Use Date" shall mean the date of this instrument.
SECTION 1.02: No discretion, right, authority or power referred to
anywhere in this instrument as that of a mortgagee or mortgage holder shall
benefit, apply to or refer to other than an Institutional Mortgagee.
SECTION 1.03: No mortgage encumbering any or all of the Land, Structures,
or rentals, proceeds and avails of this Lease, or any interest in the same,
shall be made or binding as against Lessee unless it is an Institutional
Mortgage at all times.
Neither Lessee's interest in this Lease or in any new lease made pursuant
to Section 15.07 hereof or any renewal hereof or thereof nor the leasehold
estate created hereby or thereby shall be subject or subordinate to the lien of
any mortgage subsequent hereto during the term of this Lease except to the
extent Lessee and the then holder of any Mortgage shall have expressly in signed
writing subordinated this Lease thereto. Any mortgage which is subject and
subordinate to this Lease or to any new lease made pursuant to Section 15.07
hereof, or to any renewal hereof or thereof, shall continue to be so
notwithstanding any agreement hereafter made modifying or
3
amending this Lease or any such new lease or any renewal hereof or thereof,
provided, however, that any such modification or amendment which is made after
any mortgage shall have been recorded and which shall (i) reduce the amount of
the Basic Rent payable hereunder or (ii) relieve Lessee from the obligation to
make payment of any imposition (as such term is used or defined in Sections 3.01
and 3.02 hereof) or to take out, pay for or maintain any of the insurance
provided in Article 4 hereof, or (iii) shorten the terms or extend the payment
dates hereof or of any such new lease, or (iv) amend Article 9 hereof, shall to
the extent necessary to protect the then holder of said Mortgage not be binding
upon a holder for value of the Fee Mortgage or purchaser at foreclosure of so
much of the Demised Premises as is subject to any such Fee Mortgage, or upon the
grantee in any deed given in lieu of the foreclosure of a Fee Mortgage, or their
successors or assigns, and any such purchaser or grantee shall to the extent
necessary to protect their interests be entitled to enforce this Lease or any
such new lease or renewal hereof or thereof in accordance with its terms prior
to any such modification or amendment.
SECTION 1.04: No consent or approval of Lessor's anywhere in this Lease
referred to shall be unreasonably delayed or denied.
ARTICLE 2
DEMISED PREMISES - LEASE TERM - BASIC AND ADJUSTED RENTS, NET
SECTION 2.01: Lessor, for an in consideration of the rents, covenants and
agreements hereinafter reserved and contained to be
4
paid, kept and performed by Lessee, its successors and assigns, has demised and
leased, and by these presents does demise and lease, unto Lessee, and Lessee
does hereby take and hire, upon and subject to the covenants and agreements
hereinafter expressed, the Demised Premises, AS IS as of the Use Date;
TO HAVE AND TO HOLD the Demised Premises unto Lessee, its successors and
assigns, for a term (the Lease Term) from the date hereof until July 31, 2006.
SECTION 2.02: Lessor covenants and agrees that Lessee, upon paying the
Basic Rent, additional rent and all other charges herein provided for and upon
observing and keeping all of the covenants, agreements and provisions of this
Lease on its part to be observed and kept, shall lawfully and quietly hold,
occupy and enjoy the Demised Premises during the term of this Lease without
hindrance or molestation by or from anyone claiming by, through or under Lessor.
SECTION 2.03: Lessee covenants to pay to Lessor in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, at the offices of Lessor in Palm
Beach County, Florida, or at such place in said county as Lessor may from time
to time designate in writing, a net annual basic rental (the "Basic Rent") over
and above all other and additional payments to be made by Lessee as hereinafter
provided, during the term of this Lease as follows:
(a) Commencing as of the Use Date, Basic Rent in the amount of TWO HUNDRED
FORTY THOUSAND DOLLARS ($240,000.00) per year,
5
payable in equal monthly installments, the first installment to be paid on the
Use Date and thereafter monthly in advance.
(b) Beginning five (5) years after the Use Date, the annual Basic Rent
shall be increased or decreased once each year so as to correspond to changes in
the cost of living as conclusively established by the statistics published by
the U.S. Department of Labor, Bureau of Labor Statistics, designated "Consumer
Price Index-U.S. city average--all consumers (1967 = 100) (hereinafter such
Index is referred to as the CPI) taking the month of the 5th anniversary of the
Use Date as the base and the first month of the one-year period to be adjusted
as the then current standard.
In the event such statistics are no longer practically available or
can no longer be meaningfully correlated to the base figure, the parties shall
agree on a substitute method, failing which the matter shall be arbitrated under
Article 22.
(c) Whether increases or decreases shall be made shall in all events be
determined by, and shall proportionately correspond to, increases and decreases
in the CPI. Any language above (or elsewhere in this Lease) notwithstanding, no
decrease in the annual Basic Rent shall ever be made which reduces it to less
than TWO HUNDRED FORTY THOUSAND DOLLARS ($240,000.00) per year.
(d) Lessee shall pay prior to their becoming delinquent any and every
sales and other tax, assessment, charge, levy or other imposition on this Lease
or on, or measured by, the rentals called for by this Lease, subject to Section
3.02.
SECTION 2.04: Lessor and Lessee intend that the Basic Rent shall be paid
to Lessor absolutely net, without notice or demand,
6
and without abatement, reduction or set-off of any amount whatsoever, except as
otherwise expressly provided in this Lease. All costs, expenses and obligations
of every kind and nature whatsoever relating to the Demised Premises and the
use, operation or occupancy thereof shall be paid by Lessee (except as provided
in Section 3.02 hereof) and Lessee agrees to indemnify and to save Lessor
harmless from and against the same. No specific provision, in Section 3.01 or
elsewhere in this Lease, shall limit the generality of the foregoing unless such
limitation is express, and not by implication, interpretive principle or other
non-express means.
ARTICLE 3
PAYMENT OF TAXES, ASSESSMENTS, ETC.
SECTION 3.01: Lessee covenants and agrees to pay (subject to Section
1.02), and to pay prior to the time when any fine, penalty, interest or cost may
be added thereto for non-payment or late payment thereof, all ad valorem real
estate taxes and tangible personal property taxes (including but not limited to
1980 taxes in full); all assessments, water and sewer rates and charges, and all
other governmental charges, general and special, ordinary and extraordinary,
unforeseen as well as foreseen, of any kind and nature whatsoever which are or
may become against the Property (or the sidewalks or streets in front of or
adjoining the Demised Premises) or any part thereof (all of which taxes,
assessments, water and sewer rates or charges, and other governmental charges
are in this Lease sometimes referred to as "impositions"), which are assessed,
levied, confirmed, imposed,
7
become a lien, or become payable during the Lease Term; provided however, that
if, by law, any such imposition may at the option of the payer be paid in
installments (whether or not interest shall accrue on the unpaid balance of such
imposition), Lessee may exercise the option to pay the same (and any interest
which accrues prior to the expiration of the Lease Term on the unpaid balance of
such imposition) in installments and, if said option be thus exercised, Lessee
shall pay only such installments thereof as may become due during the Lease Term
as the same respectively become due and shall make such installment payments
prior to the time any fine, penalty, interest or cost may be added thereto for
the non-payment or late payment of any such installment and interest; and
provided further, that any imposition relating to a fiscal period of the taxing
authority, a part of which period is included within the Lease Term and a part
of which is included in a period of time after the termination of this Lease,
other than a termination of this Lease pursuant to Article 15 hereof, shall
whether or not such imposition shall be assessed, levied, confirmed, imposed or
become a lien upon the Demised Premises, or shall become payable, during the
Lease Term, be adjusted between Lessor and Lessee as of the expiration of the
Lease Term, so that Lessor shall pay that portion of such imposition which that
part of such fiscal period included in the period of time after the Lease Term
bears to such fiscal period, and Lessee shall pay the remainder thereof.
8
Any fine, charge, cost, penalty, interest, fee or expense arising out of
Lessee's non-payment or late payment shall be borne by Lessee.
SECTION 3.02: Nothing in this Lease contained shall require Lessee to pay
any income tax, excess profits tax, or revenue tax of Lessor, nor any stamp or
transfer tax of Lessor's (except on this Lease itself). No tax, assessment,
charge or levy of the character hereinabove in this Section 3.02 described be
deemed to be included within the term "imposition" as defined in Section 3.01 of
this Article.
SECTION 3.03: Lessee covenants, upon request of Lessor, to furnish to
Lessor for inspection by it or by the holder of any Fee Mortgage (or both)
within thirty (30) days after the date when any imposition is payable, official
receipts of the appropriate taxing authority, or other evidence satisfactory to
Lessor and such holder, evidencing the full payment thereof.
SECTION 3.04: Lessee shall have the right to contest the amount or
validity (or both), in whole or in part, of any imposition by appropriate
proceedings, and Lessor agrees not to withhold unreasonably its joinder therein
or its consent to proceedings in Lessor's name, as and if required for effective
contest.
Notwithstanding the provisions of Section 3.01 or 3.03 of this Article,
except as may be required by a Leasehold Mortgage or by a Fee Mortgage, Lessee
may postpone or defer payment of such imposition if and while engaged in bona
fide contest of it, or may pay under protest and seek refund, as its discretion
deems
9
best, provided Lessee shall have bonded or otherwise secured payment of same so
as to prevent loss or diminution of Lessor's estate, in a manner and to an
extent reasonably satisfactory to Lessor.
Lessor shall not ultimately be subjected to any liability for the payment
of any costs or expenses (which shall include but not be limited to reasonable
attorneys' fees, if the same are required) in connection with any such contest
or proceeding, and Lessee covenants to indemnify and save harmless Lessor from
any such costs or expenses. Lessee shall be entitled promptly to any refund of
any such imposition and penalties or interest thereon, which have been paid by
Lessee, or which have been paid by Lessor and for which Lessor has been fully
reimbursed.
ARTICLE 4
INSURANCE
SECTION 4.01: At all times Lessee shall at its expense keep the Demised
Premises insured (either without coinsurance requirements or in amounts
sufficient to prevent Lessor or Lessee from becoming a coinsurer within the
terms of the applicable policies) for the mutual benefit of Lessor and Lessee as
named insureds, as their interests may appear, against
(a) loss or damage by fire, vandalism, malicious mischief and such other
risks as may be included in the standard form of extended coverage insurance
from time to time available, in an amount not less than one hundred per cent
(100%) of the then full insurable value of the Structures;
10
(b) loss or damage from leakage or malfunction of sprinkler systems now or
hereafter installed in the Structures, in such amount(s) as Lessor may
reasonably require; and
(c) loss or damage by explosion of steam boiler, air conditioning
equipment, pressure vessels or similar apparatus, now or hereafter installed in
the Structures; in such limits of liability with respect to any one accident as
may reasonably be requested by Lessor from time to time, but not less than ONE
HUNDRED THOUSAND DOLLARS ($100,000.00);
(d) flood damage, in coverages and amounts satisfactory to Lessor, while
(i) the Demised Premises are identified by HUD as a special hazard area, and
(ii) such insurance is available under the 1968 Flood Insurance Act; and
(e) such other hazards and in such amounts as Lessor or the holder of a
Leasehold Mortgage may reasonably require.
SECTION 4.02: At all times Lessee shall also at its expense maintain:
(a) Lessor's rental insurance for a period of at least six (6 months from
the date of damage or destruction of any of the Structures; and
(b) Business interruption insurance sufficient to provide Lessee six (6)
month's income; and
(c) for the mutual benefit of Lessor and Lessee as named insureds, as
their interest may appear, insurance against claims for personal bodily injury
or property damage, under a policy of general public liability insurance, with
such limits as may reasonably be requested by Lessor from time to time, but not
less
11
than TWO HUNDRED FIFTY THOUSAND/ONE MILLION DOLLARS ($250,000.00/ $1,000,000.00)
in respect of bodily injury or death, and ONE HUNDRED THOUSAND DOLLARS
($100,000.00) for property damage.
SECTION 4.03: Except as may be more strictly required by a Mortgagee, the
term "full insurable value" shall mean the then actual replacement cost of the
Structures (excluding foundation and excavation costs) less physical
depreciation, and said "full insurable value" shall be determined at the written
request of Lessor by an architect, appraiser or appraisal company nominated by
any one of the insurers, reasonably acceptable to Lessor, selected and paid by
Lessee, but such determination shall not be required to be made more frequently
than once every three (3) years. In the event of a dispute between Lessor and
Lessee as to the limits of insurance which may be requested by Lessor pursuant
to Section 4.01 or 4.02, or in the event of a dispute between Lessor and Lessee
as to the character of any hazards which Lessor may require Lessee to insure
against as provided in Section 4.01 hereof, or as to the limits of such
insurance, such dispute shall be determined by arbitration in the manner
provided in Article 22 hereof.
SECTION 4.04: All insurance provided for under this Lease shall be
effected under valid enforceable policies issued by insurers licensed to do
business in the State of Florida. The original policies shall be delivered to
the holder of the senior Mortgage constituting a lien on the Structures (alone
or together with other property), if any, or if there be none, to Lessor. At
least ten (10) days prior to the expiration date of any policy
12
the original renewal policy for such insurance shall be delivered by Lessee to
the holder of the original of the expiring policy, together with the
satisfactory evidence of payment of the premium on such policy. To the extent
obtainable, all such policies shall contain agreements by the insurers that (i)
any loss shall be payable to the parties and to the holder(s) of any Mortgage on
all or any part of the Demised Premises to whom loss may be payable as in this
Lease provided, as their interests may appear, notwithstanding any act or
negligence of Lessee which might otherwise result in forfeiture of said
insurance; (ii) such policies shall not be cancelled except upon ten (10) days
prior written notice to each named insured and loss payee; and (iii) the
coverage afforded thereby shall not be affected by the performance of any work
in or about the Demised Premises.
SECTION 4.05: Subject to the provisions and limitations hereinafter set
forth in this Section 4.05 and Sections 4.06 and 4.07 hereof, all policies of
the character referred to in Section 4.01 of this Article shall also provide, if
required by either party hereto, for any loss thereunder to be payable to the
then holder(s) of the Fee and Leasehold Mortgage(s), Leasehold Mortgage(s), and
Fee Mortgage(s) (if any) or the property insured, as the respective interests of
such holders may appear. The loss, if any, under said policies referred to in
said Section 4.01 shall be adjusted with the insurance companies by Lessee and
such Mortgagees, except that in the event of casualty resulting in damage or
destruction exceeding $100,000.00 in the aggregate, no adjustment shall be made
with the insurance companies without
13
the prior approval of Lessor, unless the senior Leasehold Mortgagee (or if none,
the senior Fee Mortgagee) shall have agreed to the amount of the adjustment, in
which event Lessor's prior approval shall not be required.
SECTION 4.06: Except as may be required by the terms of any Leasehold
Mortgage (1) the loss, if any, under all policies of the character referred to
in Section 4.01 hereof shall be payable (a) in the case of any particular
casualty resulting in a loss payment not exceeding $100,000.00, to Lessee, or
(b) in case of any particular casualty resulting in a loss payment in excess of
$100,000.00, to a bank with trust powers or a trust company, as insurance
trustee (the "Insurance Trustee") to be designated by Lessor in a notice given
to the insurance companies and to Lessee promptly following notice to Lessor of
the magnitude of the loss payment, which Insurance Trustee company shall have
its principal office in the State of Florida and have a trust assets under
management, according to its then most current published statement, in excess of
$50,000,000.00; and (2) all policies of the character aforesaid shall expressly
provide that loss thereunder shall be adjusted and paid as provided in Section
4.05 and this Section 4.06.
Lessee shall forthwith upon receipt notify Lessor of any loss payment in
excess of $50,000.00 received by Lessee.
SECTION 4.07: Any loss paid under any insurance policy to Lessee shall be
held by Lessee for application to the cost of restoring, repairing, replacing,
or rebuilding the Structures.
14
Any loss so paid to the Insurance Trustee shall be disbursed by it in accordance
with the provisions of Article 11 hereof.
SECTION 4.08: Nothing in this Article shall prevent Lessee from taking out
insurance of the kind and in the amount provided for under any section hereof
under or as part of a blanket insurance policy or policies (copies of which
shall be delivered to Lessor) which contains other coverages or covers other
properties owned or operated by Lessee as well as the Demised Properties.
SECTION 4.09: The gross premium on all insurance policies (other than
non-required coverages under any policy of blanket insurance of the kind
referred to in Section 4.08 of this Article) in force at the termination of this
Lease pursuant to Article 15 hereof shall be pro rated between Lessor and
Lessee, except that Lessor, at its option, may require Lessee to cancel such
policies in which event Lessee shall be entitled to receive the unexpired
premiums, if any, payable as a result of such cancellation.
ARTICLE 5
LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS-ADDITIONAL RENT
SECTION 5.01: Lessee covenants and agrees that if it shall at any time
fail to pay any imposition in accordance with the provisions of Article 3, or to
take out, pay for, maintain or deliver any of the insurance policies provided
for in Article 4, or fail to cause any lien of the character in Article 12
referred to be discharged as therein provided, or shall fail, within the time
limited in clause (b) of Section 15.01 hereof after the
15
notice therein specified of any default has been given thereunder, to perform
any other act on its part to be performed, then Lessor may, in addition to all
other remedies in this Lease provided, without further notice or demand upon
Lessee and without waiving or releasing Lessee from any obligations of Lessee in
this Lease contained, (a) pay any imposition payable by Lessee pursuant to the
provisions of Article 3, or (b) take out, pay for and maintain any of the
insurance policies provided for in Article 4, or (c) discharge any lien of the
character referred to in Article 12 as therein provided, or (d) perform any
other act on Lessee's part to be performed as in this Lease provided; provided,
however, that so long as a Leasehold Mortgage or Fee and Leasehold Mortgage
shall be outstanding,
(i) Lessor shall not take any action of the character specified in
the foregoing clauses (a), (b), (c) or (d) (except in the case of emergency, or
threatened lapse of insurance) until after the expiration of the time limited in
Section 15.03 after the notice therein specified has been given to the Leasehold
Mortgagee or Fee Mortgagee, and
(ii) with respect to any action of the character specified in the
foregoing clause (d), Lessor shall not take any such action (except in the case
of an emergency or threatened lapse of insurance) if the holder of a Leasehold
Mortgage or a Fee Mortgage, prior to the expiration of the time limited in
Section 15.03 hereof, shall have given the notice provided for in clause (a) of
said Section 15.03 and shall have delivered the instrument provided for in
clause (b) of said Section 15.03.
16
All sums so paid by Lessor and all necessary incidental costs and
expenses paid or incurred by Lessor in connection with the performance of any
such act by Lessor, together with interest thereon at the rate of eighteen per
centum (18%) per annum from the date of making of such expenditure by Lessor,
shall be payable to Lessor on demand, or at the option of Lessor may be added to
any installment of Basic Rent then due or thereafter becoming due under this
Lease, and Lessee covenants to pay any such sum or sums with interest as
aforesaid.
SECTION 5.02: All sums which may become payable to Lessor by Lessee as in
this Article provided; all sums payable by Lessee for impositions pursuant to
Article 3 or insurance premiums pursuant to Article 4; and all other charges and
expenses of whatsoever nature which Lessee assumes or agrees to pay pursuant to
this Lease, shall be deemed additional rent hereunder, and in the event of the
non-payment of any such sums by Lessee, Lessor shall have (in addition to any
other right or remedy of Lessor) the same rights, security and remedies as in
the case of default by Lessee in the payment of the Basic Rent.
ARTICLE 6
COVENANTS AGAINST WASTE AND ABOUT MAINTENANCE AND REPAIR OF THE
DEMISED PREMISES
SECTION 6.01: Lessee shall not cause or permit any waste, damage or injury
to the Structures or any overloading of any floor therein.
SECTION 6.02: Lessee, at its sole expense, shall keep the Demised Premises
and the adjoining sidewalks and curbs clean and
17
in good condition, free of accumulations of dirt and rubbish and shall make all
repairs (including structural repairs) and replacements necessary to maintain
the Demised Premises in a condition appropriate for buildings of similar
construction, use and class in their neighborhood, provided that in any event
Lessee shall make all repairs necessary to avoid any structural damage or injury
to the Structures. Lessor shall not be required to furnish any services or
facilities, or to make any repairs or alterations, whatsoever to the Demised
Premises, and Lessee hereby assumes the full and sole responsibility for the
condition, operation, repair, replacement, maintenance and management of the
Demised Premises.
SECTION 6.03: Neither party shall remove or permit the removal of any of
the permanent furnishings, fixtures or other property or equipment and
constituting a part of the Structures unless other property at least equal in
utility and value shall be promptly substituted therefor. Nothing herein shall
impair or limit Lessor's distraint or other remedies for a default on Lessee's
part.
SECTION 6.04: Lessee shall allow any person, municipality or agency
authorized by law and proposing to excavate upon the land or street adjoining
the Demised Premises to enter the Demised Premises and shore up any walls
thereon during any such excavation to the extent required. Lessee shall at its
expense, repair or cause to be repaired, any damage to any part of the Demised
Premises resulting from any excavation, construction work or other work of a
similar nature which may be done on any
18
property or street adjacent to the Demised Premises; and Lessor hereby assigns
to Lessee any and all rights to xxx for and recover, against any party causing
such damage, (i) the expenses and other damages incurred by Lessee because of
the provisions of this Section and (ii) any and all damages resulting to the
Demised Premises, or any part thereof, from such shoring up, excavation,
construction work, or other work of a similar nature.
ARTICLE 7
COMPLIANCE WITH ORDERS, ORDINANCES, ETC.
SECTION 7.01: Lessee covenants throughout the term of this Lease, at
Lessee's sole cost and expense, promptly to cause the Demised Premises to
comply, with (i) all laws and ordinances, and the orders, rules, regulations and
requirements of all federal, state, county and municipal governments and
appropriate departments, commissions, boards and officers thereof; (ii) all
policies of public liability, fire and other insurance at any time in force with
respect to the Demised Premises or any part thereof; (iii) all requirements of
any Fee or Leasehold Mortgage; and (iv) the orders, rules and regulations of the
local board of fire underwriters, or any other body hereafter constituted
exercising similar functions, foreseen or unforeseen, ordinary as well as
extraordinary, which may be applicable to (or to the use of) (i) any or all of
the Property, or (ii) the sidewalks, curbs, and xxxxxx adjoining the Demised
Premises, or (iii) both.
SECTION 7.02: Lessee shall have the right to contest by appropriate legal
proceedings, in the name of Lessee or Lessor or both, without cost or expense to
Lessor, the validity or
19
application of any law, ordinance, order, rule, regulation or requirement of the
nature herein referred to, and Lessee may postpone compliance therewith until
the final determination of any proceedings, provided that all such proceedings
shall be prosecuted with all due diligence and dispatch, and Lessee shall hold
Lessor harmless from any loss or injury by reason of such non-compliance or
delay. Lessor agrees to execute and deliver any papers which may be necessary to
permit Lessee to effectively contest the validity or application of any such
law, ordinance, order, rule, regulation or requirement.
ARTICLE 8
DAMAGE TO OR DESTRUCTION OF THE STRUCTURES
SECTION 8.01: Lessee covenants that in case of damage to or destruction of
the Structures, or any part thereof, by fire or any other cause, similar or
dissimilar, insured or uninsured, Lessee will promptly, at its sole cost and
expense, but subject to reimbursement to the extent provided in Article 11
hereof, restore, repair, replace or rebuild the Structures as nearly as possible
to the condition, quality and class they were in immediately prior to such
damage or destruction, or with such changes or alterations as Lessee shall elect
to make in conformity with Article 10 hereof. Such restoration, repairs,
replacement or rebuilding shall be commenced promptly and prosecuted with
reasonable diligence.
If at any time during the last ten (10) years of the term hereby granted,
or during any renewal thereof, the Structures shall be so damaged by fire or
other casualty that the cost of
20
restoration shall exceed 50% of the replacement value thereof, valued as of
immediately prior to such damage, then Lessee at its election, (but provided
Lessee shall have received at the time the written consent of the holder of
every then Leasehold and Fee Mortgage, and shall have delivered a true copy of
each such consent to Lessor) may within ninety (90) days of such damage, give
notice of Lessee's election to terminate this Lease, in which event this Lease,
any renewal, any option under it, and any right to renew or extend it shall
cease and come to an end on the date of the termination set forth in such notice
with the same force and effect as if such date were the date originally fixed
for the expiration of the term herein demised, and the rent shall be apportioned
and paid to the time of such termination, PROVIDED that, if the then Lessor
derives its title by, through or under a Leasehold Mortgage or a Fee and
Leasehold Mortgage, Lessee may not terminate this Lease without the then
Lessor's consent. In the event of such termination, Lessee shall have no
obligation to repair or rebuild and the entire insurance proceeds shall be and
remain the outright property of Lessor. If Lessor and Lessee are unable to agree
as to whether the damage is sufficiently substantial to vest the aforesaid
option in Lessee, then such dispute shall be resolved according to Article 22,
and the time for the Lessee to exercise the option to cancel shall be extended
to twenty (20) days after a final determination has been made by the
arbitrators.
21
ARTICLE 9
CONDEMNATION
SECTION 9.01: If at any time during the term of this Lease, there shall be
a total taking or a substantially total taking, actual or constructive, of the
fee title to the Demised Premises in condemnation proceedings or by any right of
eminent domain, this Lease shall terminate on the date of such taking and the
rent and other charges payable by Lessee hereunder shall be apportioned and paid
to the date of such taking. For the purposes of the Article the term
"substantially total taking" shall mean a taking (other than a temporary taking)
of such scope that the untaken portion of the Land is insufficient to permit the
construction thereon, according to then applicable laws, of a complete, rentable
office building, capable of producing a proportionately fair and reasonable net
annual income to an owner thereof, after the payment of (i) all operating
expenses thereof, (ii) the Basic Rent (if and as reduced as in Section 9.04
provided), (iii) additional rent and other charges herein reserved, and (iv) the
annual debt service charges for interest and amortization payable under every
then Fee and Leasehold Mortgage, and after performance of all covenants and
agreements herein provided to be performed by Lessee. As used above, the term
"operating expenses" shall be deemed to exclude depreciation, income taxes and
any franchise taxes of Lessee.
A "partial taking" shall be any taking other than a temporary, total
or substantially total taking.
22
In the event of a dispute between Lessor and Lessee as to whether or
not there has been a "partial taking" or a "substantially total taking" within
the meaning above set forth, such dispute shall be determined by arbitration in
the manner provided in Article 22 hereof.
SECTION 9.02: In the event of a partial taking, this Lease shall not
terminate or be affected in any way, except as provided in Section 9.04 hereof.
After payment in full of all Mortgages to which this Lease is subject or
subordinate, in accordance with their respective priorities, to the extent they
are required by the then holder to be paid in such event, (i) Lessor shall be
entitled to that portion of the condemnation proceeds as shall equal the fair
market value of the part of the Demised Premises so taken, plus consequential
damages, if any, to the portion of the Demised Premises not so taken, plus
interest thereon at the then legal rate, less amounts paid against such
mortgages as encumber Lessor's estate or interest, and the balance of the award,
if any, plus consequential damages to Lessee, if any, shall be Lessee's, and
(ii) proceeds of the award shall be paid, if $100,000.00 or less, in trust to
Lessee for application by Lessee to the cost of restoring, altering, repairing,
replacing or rebuilding the Structures, but if in excess of $100,000.00, to a
bank or trust company designated by Lessee which shall have the same
qualifications as the insurance trustee referred to in the case of the payment
of proceeds of insurance pursuant to Section 4.06. The portion of the
condemnation proceeds so paid to such
23
bank or trust company shall be disbursed by it in accordance with the provisions
of Article 11 hereof.
SECTION 9.03: To the extent condemnation proceeds are made available after
compliance with all mortgages to which this Lease is subject, in the event of a
partial taking, Lessee, at its sole cost and expense, but subject to
reimbursement as provided in Article 11 hereof, and whether or not the
condemnation proceeds shall be sufficient for the purpose, shall proceed with
due diligence to restore, repair, replace or rebuild the remaining part of the
Structures to as substantially the same as their former condition as is
feasible, or with such changes or alterations as Lessee may elect to make in
conformity with Article 10 hereof, but in any event so as to constitute a
complete, rentable building.
SECTION 9.04: In the event of a partial taking, this Lease shall terminate
as to the portion of the Demised Premises so taken and the Basic Rent for the
balance of the term of this Lease, from the effective date of such taking, shall
be equitably reduced by mutual agreement between the parties and in the event of
their inability to agree upon the amount of such equitable reduction, then by
submission to arbitration in the manner provided for in Article 22 hereto. Until
the amount of the reduction of the Basic Rent shall have been determined, Lessee
shall pay Lessor a proportion of the basic Rent corresponding to the ratio of
the enclosed square feet of office space remaining useable to the total number
of original square feet of office space, and upon such determination the
differential between the
24
amount so paid and the amount so determined shall be promptly paid.
SECTION 9.05: If, at any time during the term of this Lease, the whole or
any part of the Demised Premises, or of Lessee's leasehold estate under this
Lease, shall be taken in condemnation proceedings or by any right of eminent
domain for use or occupancy not in excess of one year's duration (a "temporary
taking") the foregoing provisions of this Article shall not apply and Lessee
shall continue during such temporary taking to pay, in the manner and at the
same times herein specified, the original Basic Rent, unadjusted, plus all other
charges payable by Lessee hereunder, and, except only to the extent that Lessee
may be prevented from doing so pursuant to the terms of the order of the
condemning authority, Lessee shall perform all of the other terms, covenants,
conditions and obligations hereof upon the part of Lessee to be performed and
observed, as though such taking had not occurred. In the event of any such
taking of the character described in this Section 9.05 and the payment of a lump
sum award therefor for the entire period of such taking, then the amount of such
award, whether paid by way of damages, rent, cost of restoration, or otherwise,
shall be paid to be a bank or trust company selected by Lessor as Trustee, to be
held in escrow, as the case may be, to secure the performance of Lessee's
obligations hereunder upon the terms and conditions as follows:
(a) Lessee and Lessor shall agree upon a reasonable amount of such award
to be held for the cost of repair, maintenance and
25
restoration of the Demised Premises upon the termination of any such temporary
taking (or failing such agreement the parties shall resolve the question under
Article 22) and such amount shall be paid to Lessee in accordance with the
provisions of Article 11;
(b) Moving expenses and other damages awarded to Lessee alone shall be
paid over to Lessee, to the extent remaining proceeds are sufficient; and
(c) The balance of such award, if any, shall then be divided into equal
parts, one part for each calendar month or major fraction thereof cumulatively
representing the period for which the award was made, and the Trustee shall pay
to Lessor, and Lessor shall credit against the rent then due, one part as so
determined on the first day of each month during the period of such temporary
taking. Any excess of such balance or of such payments over the rent otherwise
payable for the period involved shall be paid to Lessee.
SECTION 9.06: Any other language to the contrary notwithstanding, in the
event a partial taking leaves a portion of the Demised Premises which is
inadequate to house (i) Lessee's then business operation, or (ii) some part or
parts of said operation which it is economically feasible for Lessee to house
separately from the remainder of said operation, (bearing in mind, inter alia,
the extent (if any) to which Lessee's condemnation proceeds shall have
compensated such economic unfeasibility) then Lessee may vacate the remaining
premises and freely sublease them and Lessor shall have the rebuilding
26
discretions and responsibilities herein referred to as those of Lessee.
Nothing herein shall excuse Lessee from payment of rent, whether or not
reduced under Section 9.04.
ARTICLE 10
CHANGES AND ALTERATIONS BY LESSEE
SECTION 10.01: Subject to the requirements of any Leasehold Mortgage,
Lessee shall have the right, at any time and from time to time, during the term
of this Lease at its expense to make or permit such changes and alterations,
structural or otherwise, to the Structures as Lessee shall deem necessary or
desirable, and Lessor agrees to subordinate this Lease to reasonable
Institutional Mortgage financing, payable by Lessee, of such changes or
alterations. Such changes, alterations, demolition or new construction (herein
collectively referred to as "changes and alterations" or "changes or
alterations") shall be made in all cases subject to the following conditions
which Lessee covenants to observe and perform:
(a) An integrated program of related changes or alterations shall for all
purposes hereof be deemed a single change or alteration;
(b) No change or alteration shall be undertaken until Lessee shall have
procured and paid for, so far as the same may be required, from time to time,
all municipal and other governmental permits and authorizations of the various
municipal departments and governmental subdivisions having jurisdiction,
27
and Lessor agrees to join the application for such permits and authorizations
whenever such action is necessary;
(c) Any structural change or alteration costing $50,000.00 or more, shall
be conducted under the supervision of an architect or engineer licensed as such
in the State of Florida selected by Lessee;
(d) In the case of a change or alteration involving partial or total
demolition and the construction of a new building or portion, Lessee shall,
prior to the commencement of demolition establish to the reasonable satisfaction
of Lessor that (1) such new building or portion will be (A) physically and
esthetically integrated with the remainder of the structures; and (B) of value
and utility not substantially less than the value of the building or portion to
be demolished; and (2) payment for all costs, fees and expenses incident to such
change or alteration is secured;
(e) All work done in connection with any change or alteration shall be
done in a good and workmanlike manner and in compliance with local building and
zoning laws and with all laws, ordinances, orders and requirements of all
federal, state, county and municipal governments and the appropriate
departments, commissions, board and officers thereof;
(f) The cost of any such change or alteration shall be paid in cash or its
equivalent, so that the Demised Premises shall at all time be free of liens for
labor and materials supplied or claim to have been supplied;
28
(g) The work of any change or alteration shall be prosecuted with
reasonable dispatch, unavoidable delays excepted; and
(h) Workmen's compensation insurance covering all persons employed in
connection with the work and with respect to whom death or bodily injury claims
could be asserted against Lessor, Lessee or the Demised Premises and general
liability and property damage insurance (which may be effected by endorsement,
if obtainable, on the insurance then being carried pursuant to Article 4 hereof)
for the mutual benefit of Lessee and Lessor with limits of not less than those
required to be carried pursuant to said Article 4 shall be maintained by Lessee
at Lessee's sole cost and expense at all times when any work is in process in
connection with any change or alteration.
SECTION 10.02: Lessee covenants that in performing any work on, repairs
to, or restoration, replacement or rebuilding of, any of the Structures required
to be performed by Lessee pursuant to the provisions of Article 6, Article 7,
Article 8, or Article 9, Lessee will observe and perform, insofar as the nature
of such work, repairs, restoration, replacement or rebuilding make such
observation and performance appropriate, the conditions relating to changes and
alterations set forth in Section 10.01 of this Article.
SECTION 10.03: Anything herein to the contrary notwithstanding, Lessee
shall not make any changes in that part of the premises which then has been
improved for the parking of motor vehicles so as to decrease the number or
utility of motor
29
vehicle parking spaces without Lessor's prior written consent, which consent
shall not be unreasonably withheld or delayed.
SECTION 10.04: The provisions of this Section 10 shall not authorize any
action which is contrary to any then existing Fee or Leasehold Mortgage, and
shall not be binding upon one who (or upon the successors or assigns of one who)
having been previously a mortgagee, has become Lessor under this Lease by
foreclosure or by deed or assignment in lieu of foreclosure.
ARTICLE 11
DISBURSEMENTS OF DEPOSITED MONIES
SECTION 11.01: All sums of the character referred to in Sections 4.05,
9.02, 9.05, or 10.01 hereof, (hereinafter collectively referred to as "Deposited
Sums") paid to or deposited with a bank or trust company (herein called the
"Depositary") shall, subject to the provisions of the laws of the State of
Florida, be disbursed in the manner hereinafter provided.
SECTION 11.02: From time to time as any change or alteration of the
character described in Section 10.01 progresses, or as the restoration,
alteration, repairs, replacement or rebuilding of the Structures or any portion
thereof damaged or destroyed by fire or any other cause, or not taken in a
proceeding of the character described in Section 9.02 or 9.05 hereof,
(hereinafter collectively referred to as the "Work") progresses, disbursement of
any monies of the character referred to in Section 11.01 hereof shall be made in
payment for the work upon receipt by the Depositary of the following:
30
A. A certificate signed by an architect or engineer licensed as such in
the State of Florida selected by Lessee dated not more than fifteen (15) days
prior to the application for such disbursement, setting forth in substance the
following:
1. That the sum then requested to be disbursed is justly due to
contractors, subcontractors, materialmen, engineers, architects or other persons
(whose names and addresses shall be stated) who have rendered and furnished
certain labor and materials for the Work and giving a brief description of such
services and materials and the principal subdivisions or categories thereof and
the several amounts so paid or due to each of said persons in respect thereof,
and stating the progress of the Work up to the date of said certificate;
2. Whether and to what extent the sum then requested has previously
been paid by Lessor, or if the same be unknown to the certificate maker, that
the same is unknown;
3. That the sum then requested to be disbursed, plus all sums
previously disbursed, does not exceed the cost of the Work insofar as actually
accomplished up to the date of such certificate;
4. Assurances satisfactory to Lessor that the balance of the
Deposited sums will be sufficient to pay in full for the completion of the Work,
failing which assurances Lessor shall be entitled to receive other assurances
satisfactory to it of payment in full for completion thereof;
5. That no part of the cost of the services and materials described
in the foregoing subparagraph A 1 has been or
31
is being, in any previous or then pending application, made the basis for the
disbursement of any part of the Deposited Sums or has been paid out of insurance
monies not required to be paid to the Depositary; and
6. That except for the amounts, in any, stated in said certificate
pursuant to the foregoing subparagraph A 1 to be due for services or materials,
there is no outstanding indebtedness known to the person signing the
certificate, after due inquiry, which is then due and payable for work, labor,
services and materials in connection with the Work, which, if unpaid, might
become the basis of a vendor's, mechanic's, laborer's, or materialman's
statutory or similar lien upon Lessee's leasehold estate or Lessor's interest in
the Demised Premises or any part thereof.
B. A certificate signed by Lessee dated not more than ten (10) days prior
to the application for such disbursement, setting forth in substance, to the
best knowledge of Lessee, after due inquiry, that all materials and all property
described in the certificate furnished pursuant to the foregoing subparagraph A
(hereinafter said certificate) and every part thereof, are free and clear of all
mortgages, liens, charges or encumbrances, except encumbrances specified in said
certificate, if any, securing indebtedness due to persons whose names and
addresses and the several amounts due them shall be stated in said certificate,
which encumbrances will be discharged upon payment of such indebtedness; and
32
C. A current certificate of a lawyer or title company reasonably
satisfactory to Lessor showing that there has not been filed, with respect to
the Demised Premises, or any part thereof, or any interest therein or in this
Lease, any vendor's, mechanic's, laborer's, or materialman's statutory or
similar lien which has not been discharged of record, except such as will be
discharged upon payment of the amount then requested to be disbursed.
Upon compliance with the foregoing provisions of this Section, the
Depositary shall, out of the Deposited Sums, disburse to the persons named in
said certificate to be due to them and shall then disburse to Lessee the amounts
stated in said certificate to have been paid by Lessee.
SECTION 11.03: Upon receipt by the Depositary of (a) a certificate signed
by an officer of either Lessor or Lessee, dated not more than ten (10) days
prior to the application for such disbursement, setting forth in substance the
following: (i) that the Work has been completed in full; (ii) that all amounts
which Lessee is or may be entitled to have disbursed to Lessee of others under
the foregoing provisions of this Section on account of services rendered or
materials furnished in connection with the Work have been disbursed under said
provisions; (iii) that all amounts for whose payment Lessee is or may become
liable in respect of the Work have been paid in full; and (iv) that no Event of
Default has occurred which has not been remedied and (b) a current lawyer's
search or a certificate of a title company reasonably satisfactory to Lessor
showing that
33
there has not been filed with respect to Lessee's leasehold estate of Lessor's
interest in the Demised Premises or any part thereof, any vendor's, mechanic's,
laborer's or materialman's statutory or similar lien which has not been
discharged of record, then the whole balance of the Deposited Sums not
theretofore disbursed pursuant to the foregoing provisions of this Section shall
be disbursed to the then holder of any Leasehold Mortgage, and then any Fee
Mortgage, in order of lien seniority, as a reduction in the principal of said
mortgage(s), or if there be no such mortgage, to Lessor.
SECTION 11.04: If an Event of Default shall have occurred and be uncured
at the time proposed for any disbursement of the Deposited Sums or any part
thereof, Lessor may notify the Depositary thereof and thereupon the Depositary
shall have not further right or obligation to disburse any of the Deposited Sums
to Lessee as herein provided, but shall disburse the same to or for the account
of the Mortgagee who shall have delivered the instrument referred to in Section
15.03 hereof, or in the event of the termination of this Lease, who shall have
obtained a new lease pursuant to Section 15.07 hereof, or, if any such Mortgagee
shall not have elected within the period specified in said Section 15.07 to
obtain such new lease; to Lessor upon Lessor's direction so to do.
SECTION 11.05: Lessor and Lessee agree that the Depositary shall have the
right to deduct from the Deposited Sums prior to any disbursement thereof
pursuant to Section 11.02 hereof its
34
reasonable charge for acting as Depositary hereunder, which charge shall be
ultimately borne by Lessee.
SECTION 11.06: In the event there is then a Mortgage on Lessor's interest
in this Lease, or on the Demised Premises, all certificates and assurances
required by Section 11.02 shall be subject to the approval of the then holder of
the most senior of such Mortgages. In the event a Mortgagee has become Lessor
under this Lease, through foreclosure or assignment or deed in lieu of
foreclosure, all certificates and, assurances required under Section 11.02 shall
also be subject to the then Lessor's approval.
SECTION 11.07: Any other provision notwithstanding, disbursements by the
Depositary shall comply with all terms of and procedures under the Mechanic's
Lien Law as then amended and in effect, so as to keep the Demised Premise free
of lien claims, and Lessee shall furnish proofs of such compliance to Lessor.
ARTICLE 12
MECHANIC'S LIENS
SECTION 12.01: Lessor's estate shall not be subject to claim of lien as a
result of any action or inaction by Lessee, Lessee having no power to encumber
Lessor's estate, (and Lessee shall not cause, suffer or permit any mechanic's
liens to be filed against the Demised Premises, nor against Lessee's leasehold
interest therein) by reason of work, labor, services, or materials supplied or
claimed to have been supplied to Lessee or to anyone holding any interest in the
Demised Premises, or any part thereof, through or under Lessee, whether or not
the work,
35
labor, services or materials are authorized under this Lease as change or
alteration, Work, or otherwise. If claim of any mechanic's lien thus prohibited
shall at any time be filed, and if Lessee shall fail to cause the same to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise within 60 days of filing of such claim then, in lieu
of any other right or remedy of Lessor, Lessor may but shall not be obligated
to, discharge the same either by paying the amount claimed to be due or by
procuring the discharge of such lien by deposit or by bonding proceedings, and,
in the latter event Lessor shall be entitled, if Lessor so elects, to compel the
prosecution of an action to resolve all issues with respect to such mechanic's
lien and to pay the amount of the judgment in favor of the lienor (if any) with
interest, costs and allowances. If Lessor shall pay, bond off or otherwise
procure discharge of such lien then the amount so paid by Lessor shall be
repaid, forthwith upon Lessor's demand, by Lessee to Lessor with interest at the
rate of eighteen per cent (18%) from Lessor's payment to the date of Lessee's
repayment, together with reasonable attorney's fees, if any, incurred by Lessor
in connection therewith.
Nothing in this Lease contained shall be deemed or construed in any way as
constituting the consent or request of Lessor, express or implied by inference
or otherwise, to any contractor, subcontractor, laborer or materialman, for the
performance of any labor or the furnishing of any materials for any specific
improvement, alteration to or repair of the Demised Premises or
36
any part thereof, nor as giving Lessee a right, power or authority to contract
for or permit the rendering of any services or the furnishing of any materials
under circumstances that would give rise to the filing of any mechanic's liens
against Lessor's interest in the Demised Premises or in this lease.
ARTICLE 13
BUILDING, LAWFUL USE, INSPECTION AND
SURRENDER OF DEMISED PREMISES
SECTION 13.01: The parties acknowledge that Lessee is in possession of the
Demised Premises, free and clear of any and all tenancies or occupancies other
than Lessee's.
The parties agree that at Lessor's expense there has been a multi-storied,
24,000-square-foot (approximately) office building and related improvements
constructed on the Land, substantially in accordance with plans, sketches and
specifications marked for CRC Press office building (collectively the "Plans")
prepared by Schwab & Xxxxxx, Architects of Palm Beach, Florida, and dated May
18, 1978, as revised, copies of which are in the possession of Lessee.
SECTION 13.02: The Structures shall be maintained substantially as built
(subject to Article 10) in a good and workmanlike manner. There shall be no
substantial changes in the construction of the Structures except for such
changes, repairs, alterations and additions as are authorized or required by
this Lease as from time to time modified; or as are requested or required by:
37
(a) the governmental authorities or insurance underwriters having
jurisdiction thereover, or
(b) either or both of the holder of a permanent (i) Leasehold Mortgage or
(ii) Fee Mortgage to which the lease is subordinate.
Lessor shall under no circumstances be liable for any cost or expense of
such repairs, restorations, alterations or improvements.
SECTION 13.03: A. At all times during this Lease, and upon either
termination of this Lease (for any reason and in any manner) or the expiration
of this Lease, Lessor shall be the sole owner, as between the parties, of the
Structures and of any and every improvement and Alteration then upon the Land,
all without consideration other than the express terms of this Lease.
X. Xxxxxx shall as between the parties be the sole
owner of all fixtures, machinery and equipment which are not the subject of
separate, written agreement between the parties and which are then customarily
used in connection with operation and maintenance of the Demised Premises (as
distinct from operation of Lessee's business on the Demised Premises). Subject
to Section 6.03 hereof, Lessee shall be unrestricted in its freedom to acquire,
replace, maintain and trade in or otherwise transfer any and every such fixture,
machinery and equipment as appropriate in the ordinary course of operation of
the Demised Premises. Nothing herein shall include or refer to personalty which,
by the terms of any sublease approved by Lessor, is to remain the subtenant's
property.
38
ARTICLE 14
ASSIGNMENT OR ENCUMBRANCE OF LEASEHOLD; SUBLEASING
SECTION 14.01: Lessee shall have the right, from time to time, to mortgage
this Lease and the leasehold estate hereby created, or any combination of them,
to an Institutional Mortgagee. The execution and delivery of any such mortgage
shall not be deemed to constitute an assignment or transfer of this Lease so as
to require prior consent of Lessor.
SECTION 14.02: Except as provided in Section 14.01, Lessee may not,
without the prior written consent of Lessor, which consent shall not be
unreasonably withheld or delayed, assign or transfer this Lease or Sublease any
part of the Demised Premises to any persons, firms, corporations, or other
entity, except to an Exempt Assignee, as that term is hereinafter defined. As to
any assignment or transfer, whether with the approval of the Lessor or to an
Exempt Assignee, Lessee shall deliver to Lessor on Lessor's demand, (a) a
duplicate original of the instrument or instruments of transfer of this Lease in
recordable form, containing the name and address of the transferee thereof, and
(b) an instrument of assumption by said transferee of all of Lessee's
obligations under this Lease, failing which assumption such assignment or
transfer shall be void.
SECTION 14.03: No assignment or transfer or sublease shall release Lessee
from any of its obligations under this Lease.
SECTION 14.04: "Exempt Assignee" shall refer only to persons, firms,
corporations or any other entities becoming co-venturers with Lessee and jointly
and severally liable with
39
Lessee, or such entities of which Lessee owns or controls not less than 51% of
all beneficial interests therein. Exempt Assignees may assign or transfer their
respective interests to each other in the manner above specified for assignments
by Lessee to Exempt Assignees without any such assignment constituting a
violation of Section 14.02.
ARTICLE 15
DEFAULT PROVISIONS-TERMINATION-REMEDIES
SECTION 15.01: In case one or more of the following events (herein called
an "Event of Default") shall have occurred:
(a) failure in the payment of the Basic Rent or in payment of any item of
(or obligation which Lessor must or may treat as) additional rent or in payment
of any part thereof, and such default shall continue for a period of thirty (30)
days after written notice thereof, specifying such default, shall have been
given to Lessee; or
(b) default shall be made in the performance of any other covenant or
agreement on the part of Lessee to be performed hereunder, and such default
shall continue for a period of sixty (60) days after written notice thereof
specifying such default shall have been given to Lessee; provided, however, in
the case of a default which cannot with due diligence be remedied within a
period of sixty (60) days, if Lessee proceeds with due diligence as promptly as
reasonably possible after the service of such notice to prosecute the remedying
of such default, the period of time after the giving of such notice within which
to remedy the
40
default shall be extended for such period as may be necessary to remedy the same
with due diligence; or
(c) if, pursuant to an order, judgment or decree entered by (or
proceedings in) any court of competent jurisdiction:
(i) a receiver, trustee or liquidator of Lessee or of all or a
substantial part of Lessee's assets shall be appointed and not be
removed within thirty (30) days after such appointment;
(ii) Lessee shall be, and continue for thirty (30) consecutive days
to have been adjudicated bankrupt or insolvent;
(iii) a petition seeking reorganization of the Lessee or an
arrangement with creditors or to take advantage of any insolvency or
bankruptcy law shall be approved, and as a result of any or all of
(i), (ii) or (iii) the obligation of Lessee to pay the Basic Rent or
any item of additional rent shall be modified or abrogated; or
(iv) this Lease or any of the obligations of Lessee hereunder are
disaffirmed by any trustee in or out of bankruptcy, or by any
receiver or liquidator of Lessee appointed in any proceeding by any
court of competent jurisdiction (regardless of whether or not such
trustee, receiver or liquidator shall continue in possession of the
Demised Premises or shall pay an amount for the use and occupancy
thereof which may be
41
equal to or in excess of the Basic Rent and all items of additional
rent payable by Lessee hereunder)
then Lessor may, at its option, give to Lessee a notice of election to end the
term of this Lease at the expiration of five (5) days from the date of service
of such notice, (provided Lessor has also served any such in conformity with the
provisions of Article 21 hereof) and if such notice of election is given, then,
at the expiration of said five (5) days the term of this Lease and all right,
title and interest of Lessee hereunder, and any and every option of any nature
hereunder, shall expire as fully and completely as if that day were the date
herein specifically fixed for the final expiration of the term of this Lease,
and Lessee will then quit and surrender the Demised Premises to Lessor, but
Lessee shall remain liable as hereinafter provided.
SECTION 15.02: If Lessor shall become entitled to serve a notice of
election to end the term of this Lease upon the occurrence of an Event of
Default, Lessor will, before serving such notice, give to the holder of any
Leasehold Mortgage and any Fee Mortgage, a prior notice that a specified default
remains unremedied and that Lessor is entitled to serve such notice, and the
holder of the Leasehold Mortgage or Fee Mortgage shall have the right to remedy
any such default within the time Lessee could have remedied the same had the
date of such Event of Default been the date of such prior notice. Such prior
notice may be given simultaneously with or at any time after the notice of
default to Lessee.
42
SECTION 15.03: In case of the occurrence of an Event of Default (other
than an Event of Default of the character specified in Section 15.01(a) hereof)
Lessor agrees that if, within twenty (20) days after the prior notice referred
to in Section 15.02 hereof is given by Lessor to the holder of a Leasehold
Mortgage or Fee Mortgage, such holder shall:
(a) notify Lessor of its election to proceed with due diligence promptly
to acquire possession of the Demised Premises, or to foreclose its mortgage, or
otherwise to eliminate Lessee's interest in this Lease; and
(b) deliver to Lessor an instrument in writing duly executed and
acknowledged wherein the holder of the Leasehold Mortgage or Fee Mortgage agrees
that:
(i) during the period that such holder shall be in possession of the
Demised Promises, including possession through a judicially appointed officer,
and during the pendency of any such foreclosure or other proceedings and until
the interest of the lessee in this Lease shall terminate, it will pay or cause
to be paid to Lessor all sums from time to time becoming due under this Lease
for Basic Rent or any item of, or treated as, additional rent; and
(ii) if final delivery of possession of the Demised Premises shall
be made to such holder, whether voluntarily or pursuant to any foreclosure or
other proceedings or otherwise, such holder shall, promptly following such
delivery of possession, thenceforth perform or cause to be performed in full all
the covenants and agreements herein contained on Lessee's part to be performed;
then Lessor will postpone the service of notice of election to end the term of
this Lease as in Section 15.01 hereof provided for such period or periods of
time as may be necessary for such holder, with the exercise of due diligence, to
extinguish lessee's interest in this Lease, as aforesaid, and to perform or
cause to be performed all of the said covenants and agreements herein contained,
as aforesaid. Upon such final extinguishment of lessee's interest in this lease
and such performance by such
43
holder or such nominee, or by any purchaser of the Lease pursuant to any
foreclosure proceeding, both (i) Lessor's right to serve a notice of election to
end the term of this Lease as in Section 15.01 hereof provided, based upon the
occurrence of any such Event of Default, and (ii) the existence of any such
Event of Default which cannot with the exercise of due diligence be remedied by
such holder or its nominee or by such purchaser, shall thereupon be irrevocably
waived.
SECTION 15.04: Upon the termination of this lease, Lessee shall surrender
to Lessor the Demised Premises in good order and repair, reasonable wear and
tear excepted and also except as Lessee may have been prevented from maintaining
the Structures in good order and repair by occupation of the Structures by any
sovereign or agent who shall have lawfully taken the temporary use thereof and
shall then be in possession thereof. Upon such termination, Lessee shall also
deliver to Lessor all leases, lease files, plans, specifications, drawings,
contracts, records, registers and all other papers and documents which may be
necessary or of substantial aid for the proper operation and management of the
Demised Premises in their then form.
SECTION 15.05: Upon the expiration or termination of the term of this
Lease, pursuant to any of the provisions of this Article or otherwise, it shall
be lawful for Lessor, without formal demand or notice of any kind, to re-enter
the Demised Premises by summary dispossess proceedings or any other action or
proceedings authorized by due process of law, or by force, changing of locks,
erection of barricades or otherwise, and to
44
remove Lessee therefrom without being liable for any damages therefor.
SECTION 15.06: Nothing in this Lease shall limit the right of Lessor to
recover possession of the Demised Premises for non-payment of the Basic Rent or
any item of (or treated as) additional rent pursuant to any summary proceeding
or other proceeding or remedy available to it by statute or other law at any
time after (i) the occurrence of an Event of Default of the character specified
in Section 15.01(a) hereof and (ii) the expiration of the period within which
the holder of the Leasehold Mortgage or Fee Mortgage shall be entitled to remedy
such default.
SECTION 15.07: In case of the termination of this Lease, Lessor shall give
prompt notice thereof to the holder of any Leasehold Mortgage. Lessor shall, on
written request of such holder, made at any time within forty (40) days after
the giving of such notice by Lessor, enter into a new lease of the Demised
Premises with such holder, or its designee, within twenty (20) days after
receipt of such request, which new lease shall be effective as of the date of
such termination of this Lease for the remainder of the term of this Lease, at
the same rent and upon the same terms, covenants, conditions and agreements as
are herein contained and not previously fully and finally performed, provided
that the holder of such Leasehold Mortgage shall:
(a) contemporaneously with the delivery of such request, pay to Lessor all
the installments of Basic Rent and all items of
45
(or treated as) additional rent which are due and unpaid through the termination
of this Lease;
(b) pay to Lessor at the time of the execution and delivery of said new
lease any and all sums for Basic Rent and additional rent which would (had this
lease not been terminated) have been due hereunder from the date of termination
of this Lease to and including the date of the execution and delivery of said
new lease, less the net amount of all sums received by Lessor from any leases of
the Demised Premises up to the date of commencement of such new lease; and
(c) on or prior to the execution and delivery of said new lease, agree in
writing that promptly following the delivery of such new lease, such holder or
its designee will thereupon with due diligence perform or cause to be performed
all of the covenants and agreements herein contained on Lessee's part to be
performed, whether thenceforth or, to the extent that Lessee shall have failed
to perform the same, prior to the date of delivery of such new lease.
Nothing contained herein shall be deemed to impose any obligation on
the part of Lessor to deliver physical possession of Demised Premises to such
holder of a Leasehold Mortgage unless Lessor at the time of the execution and
delivery of such new lease shall have obtained physical possession thereof.
SECTION 15.08: In the event of termination of this Lease by Lessor, Lessor
shall be entitled (i) to accelerate and recover from Lessee all rent for the
remainder of the original term, to the extent not paid by a new lessee (under
Paragraph 15.07 or
46
otherwise), and (ii) to recover from Lessee all costs and expenses of reletting,
including but not limited to any expense incurred by the Lessor in performing
any of the work which is the obligation of the Lessee hereunder and any expenses
(including but not limited to reasonable attorneys' fees) incurred by the Lessor
for the repossession, repair, or remodeling of the premises following
repossession, and reasonable brokerage commissions incurred in such reletting.
SECTION 15.09: Pursuit of any remedy provided for in this lease shall not
preclude pursuit of any other remedy provided elsewhere in this lease or by law,
nor shall the pursuit of any remedy constitute a forfeiture or waiver of (i) any
rent due to the Lessor hereunder or (ii) any damage accruing to the Lessor by
reason of violation by the Lessee of any of the terms, provisions and covenants
herein contained.
ARTICLE 16
INDEMNIFICATION OF LESSOR
SECTION 16.01: Lessee agrees to indemnify and save harmless Lessor against
and from any and all claims by or on behalf of any person arising from the
conduct or management of, or from any work or thing whatsoever done in or on,
the Demised Premises, and will further indemnify and save Lessor harmless
against and from any and all claims arising during the term of this Lease from
any condition of the Demised Premises or any street, curb or sidewalk adjoining
the Demised Premises, or of any vaults, passageways or space therein or
appurtenant thereto, or arising from any breach or default on the part of Lessee
in
47
the performance of any covenant or agreement on the part of Lessee to be
performed, pursuant to this Lease, or arising from any act or negligence of
Lessee, or any subtenant or occupant of the Structures or any part thereof, or
of Lessee's or occupants' agents, contractors, servants, employees or licensees,
or arising from any accident, injury or damage whatsoever caused to any person
or property occurring during the term of this Lease in or about the Demised
Premises, or upon or under the sidewalks, and the land adjacent thereto, and
from and against all judgments, costs, fees, expenses and liabilities incurred
in or about any such claim or action or proceeding brought thereon.
ARTICLE 17
RENEWAL PRIVILEGES
SECTION 17.01: There shall be no privilege to Lessee of renewal of the
term of this Lease. The parties may or may not subsequently agree to renewal
rights in Lessee; renewal thereunder shall be subject to all terms of this lease
pertaining to renewal not specifically modified in writing as part of such
subsequent agreement. There is no understanding or obligation with respect to
such subsequent agreement or the discussion or negotiation thereof.
ARTICLE 18
LIMITATION OF LESSOR'S LIABILITY
SECTION 18.01: The term "Lessor" as used in this Lease so far as covenants
or obligations on the part of Lessor are concerned shall be limited to mean and
include the owner or owners, at the time in question, of the fee title to the
Demised
48
Premises. In the event of any transfer or transfers of the title to such fee
title, the Lessor herein named (and in case of any subsequent transfers or
conveyances the then grantor) shall be automatically freed and relieved from and
after the date of such transfer or conveyance of all liability as respects the
performance of any covenants or obligations on the part of Lessor contained in
this Lease thereafter to be performed, provided that any funds in the hands of
such Lessor or the then grantor at the time of such transfer, in which Lessee
has an interest, shall be turned over to the then transferee or grantee and any
amount due and payable therefrom to Lessee shall be paid to Lessee, and provided
further that upon any such transfer, the grantee or transferee shall be deemed
to have expressly assumed, subject to the limitations of this Article, all of
the terms, covenants and conditions in this Lease contained on the part of
Lessor thereafter to be performed, it being intended hereby that the covenants
and obligations contained in this Lease on the part of Lessor shall, subject as
aforesaid, be binding on Lessor and its successors and assigns, but only during
and in respect of their respective periods of ownership.
ARTICLE 19
INVALIDITY OF PARTICULAR PROVISIONS
SECTION 19.01: If any term or provision of this Lease or the application
thereof to any person or circumstance, shall to any extent be invalid or
49
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby. Each term and provision of this
lease shall be valid and be enforced to the fullest extent permitted by law.
ARTICLE 20
CERTIFICATES OF LESSOR AND LESSEE
SECTION 20.01: Each party agrees at any time and from time to time, upon
not less than twenty (20) days prior notice by the other party or by the holder
of any Fee or Leasehold Mortgage, to execute, acknowledge and deliver to the
other party and to the holder of such mortgage, a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the Lease is in full force and effect as
modified and stating the modifications) and the dates to which the Basic Rent
has been paid, and stating whether or not to the best knowledge of the party
signing such statement the other party is in default in keeping, observing or
performing any term, covenant, agreement, provision, condition or limitation
contained in this Lease (or if in default, specifying each such default), it
being intended that any such statement delivered pursuant to this Section may be
relied upon by the requesting party, any prospective purchaser of the fee title,
assignee or subtenant of Lessee, holder or prospective holder of any mortgage,
or assignee of any such mortgage(s), but reliance on such statement may not
extend to any default as to which the party making the statement shall have had
no occasion to acquire actual knowledge with reasonable diligence.
50
ARTICLE 21
NOTICES
SECTION 21.01: Any notice, demand or request which, under the terms of
this Lease or under any statute, must be given or made by the parties hereto,
must be in writing, and must be given or made by personal service or by mailing
the same by registered or certified mail addressed to Lessor at 0000 Xxxxxx
Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, and to Lessee at the Demised
Premises. Any mailed notice given hereunder shall be deemed delivered when
deposited in a United States general or branch office, properly sealed or
enclosed, registered or certified, postage and mailing charges prepaid. If
requested in writing by the holder of any Fee or Leasehold Mortgage (which
request shall be made in the manner hereinabove provided for notices between the
parties hereto and shall specify and address to which notices or demands shall
be given or made) any such notice or demand shall also be given or made in the
manner herein specified and contemporaneously to such holder. Either party, and
the holder of the Leasehold Mortgage (which request shall be made in the manner
hereinabove provided for notices between the parties hereto and shall specify an
address to which notices or demands shall be given or made) any such notice or
demand shall also be given or made in the manner herein specified and
contemporaneously to such holder. Either party, and the holder of the Leasehold
Mortgage or Fee and Leasehold Mortgagee who shall have made the request
hereinabove referred to, may designate by notice in writing given in the manner
herein
51
specified a new or other address to which such notice or demand shall thereafter
be so given or made. No Event of Default predicated on the giving of any notice
to Lessee shall be complete unless such notice shall have been given
contemporaneously therewith to each holder of a Fee or Leasehold Mortgage who
shall have made a request for notices and demands as above provided.
SECTION 21.02: If at any time there shall be more than one Leasehold
Mortgage or Fee Mortgage, the holder of each Mortgage having a first lien on the
Fee or Leasehold (or both) shall be vested with the rights under Sections 15.02,
15.03 and 15.07 of Article 15 hereof to the exclusion of the holder of any
mortgage junior thereto; provided, however, that if the holder of a Mortgage
prior in lien to any other Mortgage shall fail or refuse to exercise the rights
set forth in said Sections of said Article 15, each holder of a Mortgage in the
order of the priority of their respective liens shall have the right to exercise
such rights and provided further, however, that with respect to the right of the
holder of a Mortgage under Section 15.07 hereof to request a new lease, such
right shall, notwithstanding the limitation of time set forth in said Section,
be extended serially for 20-day periods to the holder(s) of each junior
Leasehold Mortgage. Mortgage in the order of the priority of their liens, until
a holder exercises such right (or until all holders of such Leasehold Mortgages
shall not have timely exercised such right).
52
ARTICLE 22
DISPUTES; COUNSEL FEES
SECTION 22.01: In the event of any dispute required by this Lease to be
submitted to and settled by arbitration, then such dispute shall be determined
in the City of Boca Raton, Florida, by binding arbitration in accordance with
the Commercial Arbitration Rules then obtaining of the American Arbitration
Association, or, if such Association shall not then be in existence, such other
organization, if any, as shall then have become the successor of said
Association, and in accordance with the then prevailing laws of the State of
Florida relating to arbitration. If allowed by the tribunal having jurisdiction,
Lessee and Lessor shall each appoint a fit and impartial person as arbitrator,
and the tribunal a third and last arbitrator.
SECTION 22.02: If the matter involves an appraisal of the value of the
Demised Premises or the leasehold estate or any other portion thereof or
interest therein, then each arbitrator so selected by a party (if any) shall be
a person who has had not less than five (5) years' experience in appraising
commercial real estate in Palm Beach County, Florida.
SECTION 22.03: The fees of the arbitrators and the expenses incident to
the arbitration proceedings, including costs of making a record, shall be borne
equally by the parties. The fees and expenses of counsel for the respective
parties and witnesses shall be paid by the respective party engaging such
counsel or calling such witness.
53
SECTION 22.04: If either or both parties shall fail diligently to proceed
with any matter which is the subject of arbitration hereunder, the holder of the
Leasehold Mortgage (or, if none, the Fee Mortgage) prior in lien among such
holders who wish to do so shall have the right, in place and stead of such party
or parties, to cause arbitration of said dispute as herein provided and any
award made in said arbitration proceeding shall be binding upon the parties with
the same force and effect as if the parties had proceeded with said arbitration.
SECTION 22.05: In any litigation arising out of or relating to this Lease,
the prevailing party shall be entitled to its reasonable counsel fees, as well
as all other costs and expenses.
SECTION 22.06: Any reference in this Article or elsewhere in this lease to
counsel fees, attorney fees, or words of like import, shall include fees in all
proceedings, in or out of court, at all levels, hearing, trial and appellate.
ARTICLE 23
REMEDIES - NO WAIVER - CHANGES - JURY TRIAL WAIVER
SECTION 23.01: The specified remedies to which either party may resort
under the terms of this Lease are cumulative and are not intended to be
exclusive of each other or of any other remedies or means of redress to which a
party may be lawfully entitled in case of any breach or threatened breach, by
the other party, of any provision of this Lease.
In addition to the other remedies in this Lease provided, each party shall
be entitled to the restraint by injunction of
54
the violation, or attempted or threatened violation, of any of the covenants,
conditions or provisions of this Lease.
SECTION 23.02: One or more failures of a party to insist upon strict
performance of the covenants, conditions or other terms of this Lease, or to
exercise any option conferred anywhere in this lease upon such party in any one
or more instances, shall not be construed as a waiver or relinquishment for the
future by such party of any covenants, conditions, options or terms, but the
same shall be and remain in full force and effect. The acceptance by Lessor of
rent with or without knowledge of the breach of any covenant hereof shall not be
deemed a waiver of such breach. No waiver by a party of any provision hereof
shall be deemed to have been made, nor shall voluntary surrender of the Demised
Premises prior to July 31, 2006, be valid unless expressly agreed to in writing.
This Lease shall not be modified by any simultaneous or subsequent implied
agreement or by course of dealing, custom or usage hereafter arising, all of the
terms of the contract between Lessor and Lessee having been fully set forth
herein.
SECTION 23.03: Except in the case of any action, proceeding or
counterclaim brought by either of the parties against the other for personal
injury or property damage, Lessor and Lessee hereby waive a trial by jury of any
and all issues arising in any action or proceeding or counter claim between the
parties hereto or their successors arising out of or in any way connected with
this Lease, or any of its provisions, or Lessee's use or occupancy of the
Demised Premises, or any claim of injury
55
or damage. Lessee hereby expressly reserves the right to interpose its then
grievances, causes and claims (if any) as against Lessor in any action or
proceeding for distress, termination of this Lease, removal of Lessee or other
possessory remedy brought by Lessor against Lessee pursuant to this Lease.
SECTION 23.04: This Lease cannot be changed orally but only by an
agreement in writing executed and acknowledged by Lessor and Lessee.
ARTICLE 24
INTERPRETATION
SECTION 24.01: Neither the Table of Contents nor the Article numeration
nor the headings of Articles shall affect interpretation of this Lease. The
parties agree they have not relied on the presence or absence of such Table or
headings, or of any language in either of them, in understanding or agreeing to
this Lease, but the same are merely conveniences and not intended to be a
comprehensive index, notice or summary of the contents of this Lease.
ARTICLE 25
PARKING; OPTION TO LEASE
SECTION 25.01: The parties acknowledge that Lessor presently intends, but
is not bound to Lessee or to anyone else, to construct upon so much of Tract A
of the plat of "STARKOFF ASSOCIATES, a Florida general partnership", according
to the plat thereof recorded in Plat Book 35, Page 101, of the Public Records of
Palm Beach County, Florida, as is not described on Exhibit A hereto, an office
building having a design and usability
56
compatible with the Structures (the "new building"), Lessor hereby grants to
Lessee an option to lease up to one-third (1/3) of net rentable space in such
new building for the rental of $14.00 per square foot of space rented, which
rental shall be net of expenses and taxes to the same extent as the rentals
under the within Lease are net to Lessor, and shall be subject to adjustment for
changes in the CPI in the same manner, to the same extent, and at the same
times, as the Basic Rent under the within Lease is required to be adjusted under
Section 2.03 of the foregoing Lease. Computations of area rented shall be by the
same method as such computations pertaining to the Demised Premises were made.
SECTION 25.02: The option hereby granted shall apply only to contiguous
space, and must be exercised by notice in writing to Lessor, delivered to Lessor
within sixty (60) days after Lessor shall have furnished Lessee a copy of the
plans and specifications for the new building and notified Lessee in writing
that the new building and related improvements are under contract to be
constructed. Lessee shall have the right to inquire, at any time prior to the
time it is required to exercise its option, as to Lessor's best estimate of the
completion date of the new building.
SECTION 25.03: Lessee shall, if and to the extent the foregoing option is
not exercised, have the right to rent such contiguous space in the new building
upon said terms at any time within two (2) years of issuance of certificate of
occupancy for
57
the new building while the same shall not be subject to any lease with a third
party.
SECTION 25.04: Any and all leases of space in said new building by and
between the parties shall be upon Lessor's then standard lease form for said new
improvements, except as expressly modified by written agreement between the
parties, including but not limited to the foregoing provisions of this Article.
SECTION 25.05: Lessor reserves the right to use so much of the Demised
Premises as may be necessary to carry on construction of such additional
improvements from time to time, but shall use commercially reasonable best
efforts not to interfere with the operations of Lessee in the Structures. Lessor
further reserves the right to connect said new building and the Structures by
landscaping, sidewalks, walkways at the first or second story level and other
means reasonably believed by Lessor to facilitate the then current or future
value, use or rental of the Structures and the new building. Lessor further
reserves the right to afford to occupants of the new building parking rights on
any and all of the Land, provided that Lessor must also provide to Lessee
parking rights on the Land in connection with its use and occupancy of the
Structures on terms at least as favorable as those afforded any tenant in the
new building. Lessee agrees to enter into any support, easement, cross-parking
and related agreements which may reasonably be required by Lessor or the holder
of any Fee Mortgage or Leasehold Mortgage, or the holder of any mortgage on such
new building and additional improvements,
58
the land upon which they are placed or in connection with which they are used,
or any lease of space in the new building.
SECTION 25.06: Unless and until such new improvements shall be
constructed, Lessee shall have the exclusive use of any and all parking spaces
on the Land, or upon the abutting land described in Section 25.01. It is the
intention and agreement of the parties that, even if additional improvements are
constructed on abutting land, the parking on such abutting land and the parking
on the Land shall be usable by tenants in any and all improvements (whether the
Structures or new building) consistent with then applicable laws and
regulations, the requirements of any Fee or Leasehold Mortgage, and the best
interests of tenants in the Structures and new building, as reasonably
determined by Lessor.
ARTICLE 26
ENCUMBRANCES
SECTION 26.01: No part of the Land, the Structures, or any interest under
this Lease, shall be subject to or encumbered by any lien other than impositions
not due or an Institutional Mortgage as defined in this Lease.
ARTICLE 27
PETITION FOR ZONING CHANGES
SECTION 27.01: Lessee is hereby authorized and empowered, for an on behalf
of Lessor and as the attorney in fact of Lessor, to execute on Lessor's behalf a
consent to petition for any zoning change relating to the Land or the
Structures, or both, where the zoning change is required for the purpose of
59
authorizing the operation of the Land and Structures for any purpose of Lessee's
not inconsistent with the terms of this Lease, or to join in any petition for a
release from restrictive covenants which interfere with the operation or
improvement of the Land or Structures (or both) for such purpose.
ARTICLE 28
COVENANTS TO BIND AND BENEFIT THE RESPECTIVE PARTIES
SECTION 28.01: It is further covenanted and agreed by and between the
parties hereto that the covenants and agreements herein contained shall bind and
inure to the benefit of Lessor and Lessee and their respective heirs, executors,
administrators, representatives, successors and assigns.
ARTICLE 29
ERASURES
SECTION 29.01: Erasures initialled by the parties hereto or intialled
interlineations, if any, were made prior to the execution and acknowledgment of
this Lease.
ARTICLE 30
RECORDATION
SECTION 30.01: The parties hereto agree not to record this Lease but to
execute and acknowledge before a Notary Public in a summary form sufficient for
recording in the Public Record of
60
Palm Beach County, Florida, a certificate as to the existence of this Lease.
IN WITNESS WHEREOF, this Lease has been duly executed by Lessor and Lessee
the day and year first above written.
Witnesses as to Lessor: STARKOFF ASSOCIATES, a Florida
General Partnership
/s/ Xxxxxx X. Xxxxxx BY:/s/ X.X. Xxxxxxxx
-------------------------- ------------------------------------
Managing Partner
/s/ Xxxxxxx Xxxxxxx
--------------------------
Witnesses as to Lessee: CRC PRESS, INC., a Florida
Corporation
/s/ Xxxxxx X. Xxxxxx BY:/s/ X.X. Xxxxxxxx
-------------------------- ------------------------------------
President
/s/ Xxxxxxx Xxxxxxx
--------------------------
61
