EXHIBIT 10.8
FORM OF
LEASE TO BE ENTERED INTO
WITH WHOLLY OWNED
SUBSIDIARY OF TDA
LEASE
Between
39 ACRE CORP.
Landlord,
and
EAGLE SUPPLY, INC.
Tenant.
Dated as of _________________, 1996
TABLE OF CONTENTS
SECTION 1. Term........................................................ -1-
SECTION 2. Fixed Rent.................................................. -1-
SECTION 3. Taxes....................................................... -3-
SECTION 4. Use......................................................... -4-
SECTION 5. Compliance with Laws........................................ -5-
SECTION 6. No Landlord Warranties...................................... -6-
SECTION 7. Assignment; Subletting...................................... -7-
7.1 Landlord's Consent Required................................. -7-
7.2 Tenant's Application (Assignment and Sublease).............. -7-
7.3 Recapture................................................... -7-
7.4 Collection/Effect of Transfer............................... -8-
7.5 Waiver...................................................... -8-
7.6 Implied Assignment.......................................... -9-
7.7 Assumption by Trustee In Bankruptcy For Tenant.............. -9-
7.8 Attorneys' Fee Related to Transfer.......................... -9-
7.9 Landlord's Right to Assign.................................. -9-
SECTION 8. Required Insurance.......................................... -9-
SECTION 9. Maintenance and Repairs..................................... -10-
SECTION 10. Damage; Use of Insurance Proceeds........................... -11-
SECTION 11. Alterations................................................. -12-
SECTION 12. Eminent Domain.............................................. -14-
SECTION 13. Right of Entry.............................................. -15-
SECTION 14. Subordination; Attornment; Estoppel Certificate............. -16-
SECTION 15. Installations; Tenant's Property............................ -17-
SECTION 16. Indemnification............................................. -18-
SECTION 17. No Liens; Adjacent Excavation............................... -19-
SECTION 18. Surrender of Premises....................................... -21-
SECTION 19. Quiet Enjoyment............................................. -21-
SECTION 20. Written Notices............................................. -21-
SECTION 21. Real Estate Brokers......................................... -21-
SECTION 22. Defaults; Remedies.......................................... -22-
22.1 Events of Default........................................... -22-
22.3 Right of Landlord to Cure Tenant's Default.................. -24-
22.4 Right of Reentry............................................ -24-
22.5 Waivers..................................................... -25-
22.6 Jurisdiction................................................ -25-
SECTION 23. Memorandum of Lease......................................... -26-
SECTION 24. Miscellaneous............................................... -26-
SECTION 25. Right of First Refusal...................................... -27-
SECTION 26. Radon Gas................................................... -27-
Schedule "A" Description of the Premises................................. -29-
Schedule "B" Required Insurance.......................................... -30-
Schedule "C" Permitted Encumbrances...................................... -32-
LEASE
LEASE, made as of ______________________, 1996 between 39 ACRE CORP., a New
York corporation, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Landlord") and
EAGLE SUPPLY, INC., 0000 X. Xxxxxxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, a Florida
corporation, ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord is the owner of the building located in the County of
________, City of __________________ and State of Florida having an address of
_____________________________, and more particularly described in Schedule "A"
(the "Premises"), which the parties acknowledge contains approximately
___________________ square feet; and
WHEREAS, in this Lease, unless and except as otherwise specifically
provided, any reference to the "Premises," means the entire Premises and/or any
portion or part thereof, together with all alterations, additions,
installations, and improvements thereto now or hereafter existing, and all
Installations (as defined below); and
WHEREAS, Landlord desires to lease to Tenant, and Tenant desires to hire
from Landlord, the Premises, upon the terms, covenants, conditions, and
provisions set forth below.
NOW, THEREFORE, in consideration of the rents and agreements set forth
herein, and intending to be legally bound hereby, Landlord and Tenant agree as
follows;
SECTION 1. Term. Upon the terms, covenants, conditions, and provisions
hereinafter set forth, Landlord hereby leases the Premises to Tenant, and Tenant
hereby rents the Premises from Landlord, for a term commencing the day and year
first above written (the "Commencement Date") and expiring on _________________
(or upon such earlier date as this Lease may otherwise expire in accordance with
the terms, covenants, conditions, and provisions hereinafter set forth referred
to herein as the "Term").
SECTION 2. Fixed Rent.
2.1 For the first five (5) years of the Term, Tenant shall pay fixed rent
("Fixed Rent") for the premises at the annual rate of
________________________________________________ Thousand ($_________________)
Dollars, payable in monthly installments of
_________________________________________________________ Thousand
($____________________) Dollars per month, payable on the first day of each
month, commencing on the day and year first above written and up to and
including ____________________________________________. For the second five (5)
years of the Term, which will commence on ____________, 2001, the Fixed Rent
shall be increased to an amount obtained by multiplying the Fixed Rent by a
fraction, the numerator of which fraction shall be the CPI (as hereinafter
defined) for the third month immediately preceding the Commencement Date and the
denominator of which shall be the CPI for the third month immediately preceding
the commencement date of the second five (5) years of the term.
The Fixed Rent, as adjusted, shall be the per annum Fixed Rent for each year
during the second five (5) years of the Term and shall be payable each year in
equal monthly installments on the first day of each month.
As used herein, the term "CPI" means the Consumer Price Index, All Cities,
All Items, All Urban Consumers (1982-84 = 100) published by the Bureau of Labor
Statistics or other governmental agency then publishing the CPI (or if such CPI
is no longer published, the index most closely comparable to the CPI).
2.2 Tenant shall pay, as additional rent ("Additional Rent"), all sums of
money, costs, real estate tax escalations, Taxes, expenses or charges, interest,
or fees (including, but not limited to, attorneys' fees) of every kind or amount
whatsoever (other than Fixed Rent) which Tenant assumes or agrees to pay to
Landlord, or which otherwise become due and payable by Tenant under this Lease.
Landlord shall have the same rights and remedies for Tenant's failure to pay any
Additional Rent as for Tenant's failure to pay Fixed Rent.
2.3 Tenant shall pay Fixed Rent and Additional Rent to Landlord at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at such other address as Landlord may
designate by Written Notice from time to time), in lawful money of the United
States of America, promptly when due and payable, without notice or demand and
without any setoff or counterclaim whatsoever (except and unless as otherwise
specifically provided in this Lease).
2.4 Landlord and Tenant intend and agree that Landlord shall receive Fixed
Rent and Additional Rent free of all charges, expenses, damages and deductions
of any and every kind whatsoever (and that Tenant shall pay and bear each and
every charge, expense, and/or damage whatsoever) which, except for execution and
delivery of this Lease, would (or will) be charged against the Premises and
payable by Landlord.
2.5 If Tenant fails to make any payment whatsoever required by this Lease
(other than Fixed Rent), or if Tenant otherwise defaults in the performance of
any term, covenant, condition or provision of this Lease, at Landlord's sole
option (but without obligation to do so) Landlord may:
(a) make any such payment; and/or
(b) take such action as Landlord deems necessary to perform and
fulfill such term, covenant, condition or provision.
Tenant shall reimburse Landlord, upon Landlord's demand by Written Notice, for
Landlord's payment and/or for all amounts paid or incurred by Landlord to
perform and fulfill such term, covenant, condition, or provision (including, but
not limited to, attorneys' fees), together with interest thereon at the Lease
Interest Rate from the date of Landlord's demand.
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2.6 In this Lease, Fixed Rent and Additional Rent are sometimes referred to
collectively as "Rents".
2.7 In addition to the Fixed Rent and Additional Rent payable under this
Lease, Tenant shall pay to Landlord, with each installment of Fixed Rent and
Additional Rent, as set forth herein, all sales or use taxes as may from time to
time be provided by law.
SECTION 3. Taxes.
3.1 In this Lease "Taxes" shall mean any and all of the following imposed
by any Government Entity upon or with respect to the Premises and/or the use,
occupancy, possession, operation and/or maintenance of the Premises:
(i) any personal property taxes;
(ii) all occupancy and rent taxes;
(iii) all real property taxes and assessments;
(iv) all water, water meter, sewer rents, rates and charges, and
all costs and charges (if any) for installing, repairing, or
replacing water meters;
(v) all excises, levies, licenses and permit fees;
(vi) all service charges, it any, with respect to police and fire
protection, security, or street maintenance and lighting;
(vii) all fees and charges for construction, maintenance,
occupancy or use of any vault, passageway or space in, on or
over or under the street or sidewalks adjacent to the
Premises, or for the construction, maintenance or use of any
part of the building covered by this Lease within the limits
of any street;
(viii) all other levies, fees, rents, assessments, taxes and
charges, general or special, ordinary or extraordinary,
foreseen or unforeseen, of any kind or nature whatsoever;
and
(ix) all fines, penalties and similar governmental charges, if
any, applicable to the foregoing, and all interest or costs
with respect thereto.
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(However, "Taxes" shall not include franchise, corporation, inheritance,
succession or income taxes of Landlord unless the same are levied as substitutes
for taxes described in (1) through (ix) above.)
3.2 Any Tax covering any fiscal period of the taxing authority which
includes a period after the expiration of the Term shall be apportioned between
Landlord and Tenant.
3.3 Tenant shall deliver to Landlord receipts of the appropriate taxing
authority evidencing payment within thirty (30) days after a Tax is due and
payable.
3.4 To the extent permitted by Laws, Tenant may contest, at Tenant's
expense and by appropriate proceedings, the amount or validity of any Tax, in
whole or in part (and to the extent permitted by Laws, Tenant may defer payment
of any such Tax during such contest); provided, however, that:
(a) Tenant shall first deliver to Landlord a surety company bond in
form and substance satisfactory to Landlord in an amount
equivalent to one hundred fifty per cent (150%) of the contested
Tax, which bond shall provide for payment of the contested Tax in
full (together with all costs, penalties and interest) within ten
(10) days after a final determination if and to the extent that
Tenant's contest is unsuccessful;
(b) Tenant shall pay all Taxes before the time when the Premises
might be forfeited by reason of non-payment;
(c) Tenant shall conduct the contest diligently; and
(d) Tenant shall advise Landlord regularly as to the status of the
contest.
3.5 A certificate or report of a title insurance company licensed to do
business in Florida or the certificate or report of the pertinent Governmental
Entity, shall be prima facie
(a) as to non-payment, that a Tax was duly assessed and became a lien
against the Premises and was unpaid as of the date of such
certificate or report; or
(b) as to payment, that a Tax was duly paid as of the date of such
certificate or report.
SECTION 4. Use.
4.1 Tenant may use and occupy the Premises for any lawful purpose permitted
by the Certificate of Occupancy.
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4.2 Tenant shall not:
(a) disfigure or deface the Premises or suffer the same to be done;
(b) obstruct or permit the obstruction of the street or sidewalk
adjacent to the Premises;
(c) do anything or suffer anything to be done, upon the Premises
which will be liable to cause structural injury to the Premises;
(d) permit the accumulation of waste or refuse matter in or about the
Premises;
(e) use the Premises (or suffer the same to be used) for any purpose
deemed extra-hazardous on account of fire risk; and/or
(f) whether with respect to an Alteration or otherwise, undertake or
permit any work or construction of any kind which would reduce
the value or character of the Premises.
SECTION 5. Compliance with Laws.
5.1 As used in this Lease:
(a) "Law" means each and every law, rule, regulation, order,
ordinance, statute, requirement, code, or executive mandate of
any kind whatsoever, present or future, used by any Government
Entity applicable to or affecting the Premises, and/or the use,
occupancy, possession, operation, and/or maintenance of the
Premises; and
(b) "Government Entity" means the United States, the State of
Florida, City ______________________, the County of
___________________________, and any and every other agency,
department, commission, rule making body, bureau, instrumentality
and/or political subdivision of government of any kind
whatsoever, now existing or hereafter created, now or hereafter
having jurisdiction over the premises, and/or the use, occupancy,
possession, operation and/or maintenance of the Premises.
5.2 At Tenant's expense, Tenant shall comply with all Laws. The parties
intend and agree that Tenant shall bear all costs and expenses of complying with
Laws and (to the extent permitted by Laws) that Landlord shall have no
obligation whatsoever to comply with Laws.
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5.3 To the extent permitted by Laws, Tenant may contest, at Tenant's
expense and by appropriate proceedings, the validity or affect of any Law (and
Tenant may defer compliance during such contest); provided, however, that:
(a) Tenant shall first delivery to Landlord a surety company bond in
form and substance satisfactory to Landlord in an amount
equivalent to one hundred fifty per cent (150%) of the cost of
full compliance with the contested Law, which bond shall provide
for the payment of all costs of compliance with such Law and
shall indemnify Landlord against all loss, cost, penalties and
interest (including, but not limited to, attorneys' fees) which
Landlord may suffer by reason of failure to comply (or delay in
complying) with such Law;
(b) Tenant shall conduct the contest diligently; and
(c) Tenant shall advise Landlord regularly as to the status of the
contest.
SECTION 6. No Landlord Warranties.
6.1 Tenant has inspected the Premises, knows the condition thereof, and
agrees to accept the same "AS IS" on the Commencement Date. Tenant acknowledges
that Landlord has made no representations or warranties whatsoever with respect
to the Premises (unless and except as expressly set forth in this Lease).
6.2 Tenant accepts and assumes full and sole responsibility for the
condition, operation, maintenance, and management of the Premises during the
Term. Tenant agrees that:
(a) Landlord shall have no obligation whatsoever to improve, repair,
alter, decorate, or rebuild in preparation for Tenant's use and
occupancy or at any time during the Term;
(b) Landlord shall have no responsibility whatsoever for any defect
in, or change in the condition of, the Premises, including but
not limited to structural defects and repairs, which shall also
be the sole responsibility of Tenant; and
(c) Landlord shall have no responsibility to provide or furnish any
services or utilities or any kind whatsoever to or for Tenant or
the Premises.
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SECTION 7. Assignment; Subletting.
7.1 Landlord's Consent Required
Tenant shall not voluntarily or by operation of law assign, license,
franchise, transfer, mortgage, hypothecate, or otherwise encumber (collectively
"Transfer") all or any part of this Lease or any interest therein, and shall not
sublet, franchise, change ownership or license (also included as a "Transfer")
all or any part of the Premises, without first obtaining the prior written
consent of Landlord. Any attempted Transfer without such consent being first had
and obtained shall be wholly void and shall confer no rights upon any third
parties. Without in any way limiting Landlord's right to refuse to give such
consent for any other reason or reasons, Landlord hereby reserves the right to
refuse to give such consent if in Landlord's sole discretion (i) the quality of
the business operation conducted on the Premises is or may in any way be
adversely affected during the Term of the Lease by such proposed Transfer, (ii)
the financial net worth of a proposed new tenant is less than that of Tenant, or
(iii) the proposed new tenant is a governmental agency or instrumentality
thereof. Furthermore, Landlord hereby reserves the right to condition Landlord's
consent to any Transfer upon Landlord's receipt from Tenant of a written
agreement, in form and substance acceptable to Landlord, pursuant to which
Tenant shall pay over to Landlord all rent or other consideration received by
Tenant from any such subtenant or assignee, either initially or over the term of
the assignment or sublease, in excess of the Rents called for hereunder, or, in
case of the sublease of a portion of the Premises, in excess of such rent fairly
allocable to such portion, after appropriate adjustments to assure that all
other payments called for hereunder are taken into account (the "Transfer
Premium"). Consent by Landlord to any Transfer of the Premises or any interest
therein shall not be a waiver of Landlord's rights under this Section 7.1 as to
any subsequent Transfer.
7.2 Tenant's Application (Assignment and Sublease)
In the event that Tenant desires at any time to Transfer the Premises or
any portion thereof, Tenant shall submit to Landlord at least sixty (60) days
prior to the proposed effective date of the Transfer ("Proposed Effective
Date"), in writing: (a) a request for permission to Transfer, setting forth the
Proposed Effective Date, which shall be no less than sixty (60) nor more than
ninety (90) days after the sending of such notice; (b) the name of the proposed
subtenant or assignee or other party; (c) the nature of the business to be
carried in the Premises after the Transfer: (d) the terms and provisions of the
proposed Transfer; (e) a copy of all existing executed and/or proposed
documentation pertaining to the Transfer; and (f) current financial statements
(audited, if available) of Tenant and the proposed subtenant or assignee; and
such additional information that Landlord may reasonably request in order to
make a reasoned judgment.
7.3 Recapture
If Tenant proposes to assign this Lease, Landlord may, at its option,
exercisable upon written notice to Tenant within thirty (30) days after receipt
of the notice from Tenant set forth
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in paragraph 7.2 above, elect to recapture the Premises and terminate this
Lease. If Tenant proposes to sublease all or part of the Premises, Landlord may,
at its option exercisable upon written notice to Tenant, within thirty (30) days
after receipt of the notice from Tenant set forth in paragraph 7.2 above, elect
to recapture such portion of the Premises as Tenant proposes to sublease and,
upon such election by Landlord, this Lease shall terminate as to the portion of
the Premises recaptured. In the event a portion only of the Premises is
recaptured, the Fixed Rent under this Lease shall be proportionately reduced. If
Landlord does not elect to recapture pursuant to this paragraph 7.3, Tenant may
thereafter enter into a valid assignment or sublease with respect to the
Premises provided Landlord, pursuant to this paragraph 7, consents thereto, and
provided further that (a) such assignment or sublease is executed within ninety
(90) days after notification to Landlord of such proposal, and (b) the rental
therefrom is not more than that stated in such notification.
7.4 Collection/Effect of Transfer
If this Lease be assigned, or if the Premises or any part thereof be sublet
or occupied by anybody other than Tenant, Landlord may collect Rents from the
assignee, subtenant or occupant and apply the net amount collected to the Rents
herein reserved and retain any excess Rents so collected, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver of
Tenant's covenant set forth in the first sentence of paragraph 7.1 above, nor
shall such assignment, subletting, occupancy or collection be deemed an
acceptance by Landlord of the assignee, subtenant or occupant as tenant, or a
release of Tenant or any guarantor from the further performance by Tenant of
covenants on the part of Tenant herein contained, or affect the continuing
primary liability of Tenant hereunder (which, following any assignment, shall be
joint and several with the assignee). If Landlord consents to a Transfer, (i)
the terms and conditions of this Lease shall in no way be deemed to have been
waived or modified, (ii) such consent shall not be deemed consent to any further
Transfer by either Tenant or a transferee, (iii) Tenant shall deliver to
Landlord, promptly after execution, an original executed copy of all
documentation pertaining to the Transfer in form reasonably acceptable to
Landlord, and (iv) Tenant shall furnish upon Landlord's request a complete
statement, certified by an independent certified public accountant, or Tenant's
chief financial officer, setting forth in detail the computation of any Transfer
Premium Tenant has derived and shall derive from such Transfer. Landlord or its
authorized representatives shall have the right at all reasonable times to audit
the books, records and papers of Tenant relating to any Transfer, and shall have
the right to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found understated, Tenant shall within thirty (30) days after
demand, pay the deficiency, and if understated by more than two percent (2%),
Tenant shall pay Landlord's costs of such audit.
7.5 Waiver
Notwithstanding any assignment or sublease, or any indulgences, waivers or
extensions of time granted by Landlord to assignee or sublessee, or any failure
by Landlord to take action against any assignee or sublessee, Tenant waives
notice of any default of any assignee or sublessee and agrees that Landlord may,
at Landlord's option, proceed against Tenant without
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having taken action against or joined such assignee or sublessee, except that
Tenant shall have the benefit of any indulgences, waivers and extensions of time
granted to any such assignee or sublessee.
7.6 Implied Assignment
If Tenant hereunder is a corporation, an unincorporated association or a
partnership, the transfer, merger, assignment or hypothecation of any stock or
interest in such corporation, association or partnership in the aggregate in
excess of twenty-five percent (25%) shall be deemed an assignment within the
meaning and provisions of this paragraph 7; provided, however, that: (a) an
assignment of any such stock or interest with respect to a corporation or
partnership whose shares or partnership interests are publicly traded, (b) an
assignment or sublease to any corporation which controls, is controlled by or is
under common control with Tenant, or (c) an assignment or sublease by a
shareholder or member to his spouse or children, are all excepted from the
foregoing provision.
7.7 Assumption by Trustee In Bankruptcy For Tenant
In the event that Tenant files any type of petition in bankruptcy or has
such petition filed against it, and Landlord cannot elect to terminate this
Lease pursuant to law, and in the event that the trustee or receiver appointed
by the bankruptcy court assumes or adopts this Lease and fails or refuses to
give Landlord adequate assurance of compliance with this Lease pursuant to law,
then Landlord shall have the right to terminate this Lease within thirty (30)
days after gaining knowledge of such failure to give such adequate assurances,
or within thirty (30) days after receipt of written notice from said trustee or
receiver of refusal to give such adequate assurances, whichever is earlier.
7.8 Attorneys' Fee Related to Transfer
Landlord may make reasonable charges to Tenant for any reasonable
attorneys' fees or expenses incident to any documentation relating to any
proposed Transfer by Tenant.
7.9 Landlord's Right to Assign
Landlord's right to assign its interest under this Lease shall in all
events remain unqualified and unrestricted.
SECTION 8. Required Insurance.
8.1 In this Lease, "Required Insurance" means the insurance coverages
specified in Schedule "B". At Tenant's expense, Tenant shall secure and keep in
force all Required Insurance at all times during the Term of this Lease.
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8.2 All Required Insurance shall be evidenced by valid and enforceable
policies issued by companies licensed to do business in the State of Florida.
(Each policy providing Required Insurance is referred to in this Lease as an
"Insurance Policy".) Tenant shall deliver copies of all Insurance Policies (with
evidence of full payment) to Landlord upon the execution and delivery of this
Lease. Thereafter Tenant shall deliver copies of all renewal or replacement
Insurance Policies (with evidence of full payment) to Landlord not more than
thirty (30) days after the expiration date of the applicable Required Policy.
Each copy of each Insurance Policy shall be accompanied by a Certificate of
Insurance naming the Landlord as an additional insured and, in addition, shall
provide that the same shall not be cancelled except after thirty (30) days prior
Written Notice to Landlord (whether or not such provision is obtainable only by
payment of additional premium). No Insurance Policy shall contain any
endorsement permitting cancellation for default in payment of a loan financing
the premium. Each Insurance Policy shall include a standard mortgagee clause
without contribution pursuant to which all loss or losses are payable to any
mortgagee (or mortgagees) designated by Landlord from time to time.
8.3 Tenant shall not secure separate insurance concurrent in form or
contributing in the event of loss with any Insurance Policy required under this
Lease unless Landlord is included as a named insured with loss payable to
Landlord. Tenant shall give Landlord Written Notice promptly upon securing any
such separate insurance, specify the insurer and full particulars of applicable
policies.
8.4 All policies of insurance carried by Landlord and Tenant shall include,
if available without additional premium, a waiver by the insurer of all right of
subrogation against the Landlord or Tenant in connection with any loss or damage
thereby insured against. Neither party (nor its agents, employees or guests)
shall be liable to the other for loss or damage caused by any risk covered by
such insurance, to the extent that policies are obtainable with waiver of
subrogation. If insurance policies with such waivers are available only at extra
premium, the insured party will give Written Notice to the other party, who mail
pay the extra premium for such waiver within thirty (30) days after giving of
such Written Notice and the insured party will then secure the waiver of
subrogation. If the release of either Landlord or Tenant in this Section
contravenes any law respecting exculpatory agreements, the party purportedly
released hereunder shall not be released, but such party's liability shall be
secondary to that of the other party's insurer.
SECTION 9. Maintenance and Repairs.
9.1 At Tenant's sole cost and expense:
(a) Tenant shall keep the Premises clean and safe;
(b) Tenant shall maintain the Premises in good condition and repair
(reasonable wear and tear excepted); and
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(c) In furtherance (and not in limitation of (a) and (b) above),
Tenant shall maintain the class and character of the Premises as
existing on the date hereof.
9.2 At Tenant's sole cost and expense, Tenant shall make all repairs,
renewals, replacements, additions, improvements and Restorations of every kind
or nature whatsoever (structural or otherwise and whether or not required after
damage or otherwise) necessary to keep and maintain the Premises in the
condition described in Section 9.1.
9.3 At Tenant's sole cost and expense, Tenant shall keep clear and free
from dirt, snow, ice, rubbish, obstructions and encumbrances, all sidewalks,
sidewalk railings, gutters and alleys adjoining the Premises, and any vaults
used by Tenant.
9.4 All work by Tenant shall be of good quality and shall comply in all
respects with the requirements of Section 11.
SECTION 10. Damage; Use of Insurance Proceeds.
10.1 In this Lease:
(a) "Damage" means any and all damage or destruction to or of the
Premises resulting from fire, casualty, or any other cause
whatsoever; and
(b) "Restoration" (or "to Restore") means and includes any and all
repairs, restorations, rebuilding, reconstruction, alterations,
improvements or replacements of every kind.
10.2 Tenant shall notify Landlord in writing of any Damage as promptly as
reasonably possible after Tenant receives notice of the same.
10.3 In case of Damage, and regardless of the amount thereof or the
estimated cost of Restoration, at Tenant's sole cost and expense and whether or
not insurance proceeds (if any) are sufficient for the purpose, Tenant shall
promptly undertake and complete Restoration of the Premises at least to the
extent of the value and as nearly as possible to the condition and character
described in, and required under, Section 9.1. If Tenant fails to Restore with
reasonable diligence, or, having commenced, fails to complete Restoration with
reasonable diligence in accordance with this Lease, Landlord may (but shall not
be obligated to) undertake and/or complete Restoration at Tenant's expense; and
all costs and expenses of any kind whatsoever expanded by Landlord for such
Restoration shall be Additional Rent payable by Tenant upon demand (by Written
Notice), with interest at the Lease Interest Rate from the date of Landlord's
demand.
10.4 If any sum of money becomes payable under any Insurance Policy by
reason of Damage, Landlord shall permit Tenant (subject to the requirements of
any mortgage then a lien
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on the Premises) to use the available insurance proceeds (after deducting all
expenses of collecting the same) for Restoration upon the following conditions.
(a) Tenant shall not be in default then or thereafter in payment of
any Rents whatsoever due and payable under this Lease; and
(b) Tenant shall comply with each and every requirement of Section
13, and all other applicable provisions of this Lease in
connection with the Restoration and all work relating thereto.
SECTION 11. Alterations.
11.1 In this Lease, "Alterations" shall mean:
(a) any demolition or replacement of the Promises; and/or
(b) any material alteration, construction, improvement, or
modification of or to the Premises; and/or
(c) any addition to the Premises; and/or
(d) any work affecting the structure or exterior of the Premises.
In (b) above, "material" shall mean reasonably estimated to require an
expenditure in excess of Twenty-Five Thousand Dollars ($25,000.00).
11.2 Tenant shall not undertake any Alteration, whether voluntarily or in
connection with a Restoration required by this Lease, unless Tenant complies
with all of the following requirements:
(a) Tenant shall not commence any Alteration without the prior
written consent of Landlord;
(b) Tenant shall cause all necessary designs, plans and
specifications for a proposed Alteration to be prepared at
Tenant's expense by a licensed architect (or engineer if
appropriate) and shall submit the same to Landlord for Landlord's
written approval; provided however, that Landlord's approval (if
given) shall not imply that the Alteration is properly designed
or complies with Laws,
(c) Tenant shall procure or cause to be procured all permits,
approvals, consents, licenses and filings of any kind required by
Laws;
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(d) Tenant shall obtain (and pay any additional costs for) the
consent of any insurer to such Alteration if required to keep any
Insurance Policy in full force and effect;
(e) Tenant shall undertake, prosecute, and complete all work in
connection with the Alteration continuously and expeditiously and
in a good and workmanlike manner; and Tenant shall incorporate in
the Alteration only new materials (and equipment, if applicable)
of the best quality specified in the plans and specifications as
approved by Landlord;
(f) Tenant agrees that the Alteration:
(i) will be of good quality and free from faults and defects,
latent or otherwise;
(ii) will be free and clear of all liens and encumbrances of any
kind whatsoever;
(iii) will conform to the plans and specifications as approved by
Landlord;
(iv) will be fit for the intended use and purpose; and
(v) will be of such character as not to reduce the value of the
Premises below its value immediately before commencement of
the Alteration.
11.3 If the estimated cost of any Alteration exceeds Twenty-Five Thousand
Dollars ($25,000.00), before commencing any work with respect to such
Alteration, Tenant shall, at Tenant's sole cost and expense:
(a) deliver to Landlord the following, each in form satisfactory to
Landlord and each issued by a surety company previously approved
in writing by Landlord:
(i) a payment bond guaranteeing to Landlord and/or Landlord's
assigns Tenant's timely payment for all labor, services,
materials and equipment furnished in connection with the
Alteration of any portion thereof (and to all persons or
firms furnishing the same);
(ii) contractor's comprehensive general public liability
insurance in an amount not less than Five Million Dollars
($5,000,000) for bodily injury or death and not less than
Five Million Dollars
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($5,000,000) for property damage, which shall cover
operations-premises liability, contractor's protective
liability on the operations of all subcontractors, completed
operations, explosions, collapse, underground damage,
contractual liability, and automobile liability (owned and
not owned);
(iii) if the Alteration will involve foundation, excavation, or
demolition work, an endorsement that such operations are
covered under the insurance described in (ii) above and that
the "XCU Exclusions" have been deleted;
(iv) owner's protective insurance written under a comprehensive
general liability policy form (separate from the
contractor's comprehensive general liability policy required
by (ii) above), naming Landlord and any mortgagee(s)
designated by Written Notice from Landlord to Tenant as
their respective interests may appear, in an amount not less
than Five Million Dollars ($5,000,000) for bodily injury and
death and not less that Five Million Dollars ($5,000,000)
for property damage;
(v) builder's risk insurance on an "all risk" basis including
(but not limited to) flood, earthquake, collapse and theft,
written on a completed value (non-reporting basis) naming
Landlord and any mortgagee(s) designated by Written Notice
from Landlord to Tenant as their respective interests may
appear (and if any off-site storage location is used,
covering, for actual replacement value, all materials and
equipment on or about any such off-site storage location
intended for use with respect to the Premises); and
(vi) such other insurance in such amounts as Landlord may
reasonably require from time to time, provided that such
insurance shall be customarily required by prudent owners of
similar buildings for similar construction projects.
SECTION 12. Eminent Domain.
If the whole or any substantial part of the Premises, including the land or
parking area serving the Premises, shall be taken by any legally constituted
authority for public quasi-public use, eminent domain or by private purchase in
lieu thereof, Landlord shall have the right to terminate this Lease as of the
date possession is required to be surrendered to the authority. If more than
twenty-five percent (25%) of the rentable square feet of the Premises is taken
for a period in excess of one hundred eighty (180) days, and provided the
balance of the Premises remaining cannot be effectively utilized by Tenant for
the purposes that Tenant is currently using
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the Premises (it being understood that a reduction of the available square
footage does not in and of itself operate to terminate the Lease unless it
renders the Premises untenantable by Tenant), Tenant shall have the option to
terminate this Lease effective as of the date possession is required to be
surrendered to the authority. If this Lease is terminated pursuant to the terms
of this paragraph 12, all Fixed Rent and Additional Rent shall be prorated to
the date Tenant gives up possession of the Premises. In the event the Lease is
not terminated pursuant to the terms of this paragraph 12, then Tenant shall be
responsible for Fixed Rent and Additional Rent to the date of such taking or
purchase; after which date Fixed Rent shall be reduced proportionately as the
usable floor area of the remaining Premises compares to the usable floor area of
the Premises before such taking or purchase. Landlord shall be entitled to the
entire award from the condemning authority for each and every interest of
Landlord in this Lease and the Premises. However, Tenant shall have the right to
seek an award from the condemning authority effecting such condemnation or
purchase for the value of alterations made to the Premises by Tenant, moving
expenses and other damages suffered by Tenant as a result of any such
condemnation or transaction in lieu of condemnation, provided that Landlord's
interests in the condemnation award are not thereby diminished.
SECTION 13. Right of Entry.
13.1 Tenant authorizes Landlord and/or Landlord's authorized representative
or agent to enter the Premises at all times during usual business hours on
reasonable notice but at any time in case of emergency (and by force if
necessary in such event):
(a) to inspect the Premises; and/or
(b) (if Landlord so desires, but without obligation to do so) to
perform any maintenance or to make any repair to the Premises
required under Section 9 which Tenant has failed to perform or
make (and Landlord may keep and store all necessary materials,
tools, supplies and equipment on the Premises during and in
connection with such maintenance or repairs).
13.2 Landlord shall not be liable (and Tenant shall not be entitled to any
abatement or adjustment of Fixed Rent or Additional Rent) for inconvenience,
annoyance, disturbance, loss of business or other damage of any kind whatsoever
to Tenant by reason of Landlord's entry on, or work in, the Premises pursuant to
Section 13.1 (or of bringing or storing materials, tools, supplies and equipment
into, on, or through the Promises during or in connection with the same).
However, Landlord shall repair any damage to property caused by willful acts or
negligence of Landlord, or Landlord's employees or contractors.
13.3 Tenant agrees to permit Landlord and/or any authorized representative
or agent of Landlord to enter the Premises at all reasonable times during usual
business hours on reasonable notice to exhibit the Premises in connection with:
(a) any prospective sale of the Building;
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(b) any prospective securing, refinancing, or assignment of any
mortgage and/or
(c) during the final twelve (12) months of the Term, any prospective
lessee of the Premises.
13.4 If, during the last month of the Term, Tenant shall have removed all
of Tenant's Property therefrom, Landlord may (at Landlord's option but without
any liability to do so) immediately enter and alter, renovate and redecorate the
Premises, without abatement or adjustment of Fixed Rent or Additional Rent or
incurring liability to Tenant for any compensation; and such acts shall have no
affect upon this Lease.
SECTION 14. Subordination; Attornment; Estoppel Certificate.
14.1 This Lease and Tenant's estate hereunder are and shall be subject and
Subordinate in every respect to all Permitted Encumbrances specified in Schedule
"C". This subordination shall be self-operative; and no further instrument of
subordination shall be required by any party to whom (or to whose interest) this
Lease and Tenant's estate are subordinate. In furtherance (and not in
limitation) of the foregoing, Tenant shall execute and deliver promptly any
certificate or instrument evidencing such subordination which Landlord may
request.
14.2 Upon request of any present or future fee owner, mortgagee, or ground
lessor succeeding to the rights of Landlord hereunder (any such person, a "New
Landlord"), whether through conveyance pursuant to sale, possession, foreclosure
action, expiration or any earlier termination of any ground lease, or otherwise,
Tenant shall attorn to and recognize New Landlord as "Landlord" under this Lease
(as the same may then have been amended or modified); and Tenant shall promptly
execute and deliver any instrument which New Landlord may reasonably request to
evidence such attornment. Upon such attornment, this Lease (as the same may then
have been amended or modified) shall continue in full force and effect as, or as
it were, a direct lease between New Landlord and Tenant; except, however, that
Now Landlord shall not:
(a) be liable for any previous act or omission of Landlord under this
Lease, or any claim which shall have previously accrued to Tenant
against Landlord; or
(b) be bound by any prepayment to Landlord of more than one month's
Fixed Rent, unless such prepayment shall have been expressly
approved in writing by New Landlord.
14.3 From time to time, upon Landlord's request, Tenant shall execute,
acknowledge and deliver to Landlord a written statement (each such, an "Estoppel
Certificate") certifying that, except as specifically disclosed in such Estoppel
Certificate and as of the date thereof:
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(a) there are no agreements other than the Lease (and no
modifications of the Lease) in effect between Tenant and Landlord
(or any other party) with respect to the Premises;
(b) the Lease is valid and in full force and effect and Tenant has no
setoffs. Claims for defenses of any kind whatsoever to
enforcement of the Lease;
(c) Tenant has no claim, demand, cause of action or right to
institute any legal proceeding against Landlord arising out of or
by virtue of the Lease or by reason of Tenant's occupancy and use
of the Premises;
(d) Landlord is not in default in the performance of any of
Landlord's obligations (if any) under the Lease; and Tenant has
not given any notice of default to Landlord.
In each Estoppel Certificate Tenant shall certify, also, the amount of annual
Fixed Rent then payable under the Lease, the amount (and elements) of Additional
Rent then payable, and the dates to which Tenant has paid the same. Tenant
acknowledges and agrees that a prospective purchaser or mortgagee of Landlord's
interest in this Lease or the Premises (or the assignee of any such mortgagee)
may rely upon Tenant's Estoppel Certificate.
SECTION 15. Installations; Tenant's Property.
15.1 In this Lease the following terms shall have the following meanings:
(a) "Installations" means all fixtures, machinery and equipment of
every kind whatsoever installed or incorporated in or upon the
Premises, and all alterations, modifications, or improvements of
every kind whatsoever in or upon the Premises other than Tenant's
Property. "Installations" shall include (but not limited to)
machinery; equipment; engines; boilers; elevators; escalators;
heating; ventilating and air conditioning equipment; ducts;
pipes; conduits wiring, and fittings; plumbing equipment and
fixtures; window fixtures; and sprinkler equipment.
(b) "Tenant's Property" means all furniture, movable equipment,
computers, business trade and equipment and fixtures, office
machinery, and other articles of personal property installed or
located in the Premises by Tenant which can be removed without
permanent damage to the Premises.
15.2 All Installations installed by Tenant in or upon the Premises (whether
at Tenant's expense or otherwise) shall become, upon installation, part of the
Premises and Landlord's property and shall be surrendered to Landlord at the end
of the Term or other expiration of this Lease. However, by Written Notice to
Tenant not less than thirty (30) days prior to the end of the Term (or within
thirty (30) days after any other termination of this Lease) Landlord may
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require Tenant to remove any Installations installed by Tenant without
Landlord's prior written consent.
15.3 Prior to the end of the Term (or other expiration of this Lease), at
Tenant's sole cost and expense, Tenant shall;
(a) remove all of Tenant's Property from the Premises;
(b) remove from the Premises all Installations designated by Landlord
for removal pursuant to 15.2; and
(c) repair all damage to the Premises caused by any such removal.
15.4 All Installations and/or Tenant's Property which this Section requires
Tenant to remove from the Premises shall be deemed abandoned property if not
removed as and when required under this Lease (hereinafter "Abandoned
Property"). At Landlord's election, Landlord may retain as Landlord's property
all (or any part) of any Abandoned Property; and/or, without liability of any
kind whatsoever to Tenant, Landlord may remove, sell, destroy or otherwise
dispose of all (or any part of) Abandoned Property. Tenant shall reimburse
Landlord, upon demand, for all costs incurred by Landlord to remove Abandoned
Property from the Premises and/or to repair any damage to the Premises caused by
or related to removal of Abandoned Property, with interest at the Lease Interest
Rate from the date of Landlord's demand.
SECTION 16. Indemnification.
16.1 In this Lease "Landlord's Affiliates" means:
(i) any corporation controlling Landlord and any parent
corporation controlling the same (whether directly or
indirectly);
(ii) any corporation controlled by Landlord and any corporation
controlled by the same (whether directly or indirectly);
(iii) any person, firm, or corporation which acquires
substantially all of the assets or capital stock of Landlord
or any corporation into which Landlord may be merged or with
which Landlord may be consolidated; and
(iv) all shareholders, directors, officers, employees, and agents
of Landlord and of every corporation referred to in (i),
(ii) and (iii) above.
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For purposes of this Section, "control" means the ownership of more than twenty
per cent (20%) of the common stock of a corporation or of the beneficial
ownership of an unincorporated enterprise.
16.2 Landlord and Landlord's Affiliates shall not be liable to Tenant for
any injury or damage to persons or property resulting from any cause of
whatsoever nature (unless caused by or due to the willful acts or negligence of
Landlord or Landlord's Affiliates).
16.3 In furtherance (and not in limitations of the terms, covenants,
conditions, and provisions of this Lease, Tenant agrees to indemnify Landlord
and Landlord's Affiliates and hold Landlord and/or Landlord's Affiliates
harmless from and against all loss, liability, obligation, damage, penalty,
cost, charge and expense of any kind whatsoever (including, but not limited to,
attorneys' fees), whensoever asserted or occurring, which Landlord and/or
Landlord's Affiliates may incur or pay out, or which may be asserted against
Landlord and/or Landlord's Affiliates:
(a) in whole or in part by reason of any failure of or by Tenant to
perform or comply with any and all of the terms, covenants,
conditions and provisions of this Lease; and/or
(b) in whole or in part by reason of any work or thing of whatsoever
kind done in, on or about the Premises of the building(s) by
Tenant or Tenant's employees, contractors, agents, or licensees
(including, but not limited to, construction, alterations,
repairs, or similar acts of any kind whatsoever, and whether or
not authorized by this Lease); and/or
(c) in whole or in part by reason of any negligence or willful act or
omission of Tenant or Tenant's employees, contractors, agents or
licensees; and/or
(d) in whole or in part by reason of any injuries to persons or
property occurring in, on, or about the Premises caused by Tenant
or Tenant's employees, contractors, agents, or licenses
(provided, however, that this (d) shall not apply to injuries to
persons or property caused by willful acts or negligence of
Landlord or Landlord's Affiliates).
SECTION 17. No Liens; Adjacent Excavation.
17.1 Tenant covenants and agrees to advise all contractors and person's
supplying labor, material or services in connection with such work of the
provisions of this Section 17.1. Landlord's interest in the Premises shall not
be subject to liens for improvements made by Tenant, and Tenant shall have no
power or authority to create any lien or permit any lien to attach to Tenant's
leasehold or to the estate, reversion or other estate of Landlord in the
Premises. All contractors, artisans, mechanics and laborers and other persons
supplying materials or labor or contracting with Tenant with respect to the
Premises or any part thereof,
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or any party entitled to claim a construction lien under the laws of Florida
(whether same shall proceed in law or in equity) are hereby charged with notice
that they shall look solely to Tenant to secure payment of any amounts due for
work done or material furnished to Tenant relating to the Premises, or for any
other purpose during the term of this lease.
Tenant shall indemnify Landlord against any loss or expenses incurred as a
result of the assertion of any such lien, and Tenant covenants and agrees to
transfer any claimed or asserted lien to a bond or such other security as may be
permitted by law within ten (10) days of the assertion of any such lien or claim
of lien. In the event Tenant fails to transfer such lien to bond or other
security within such ten (10) day period then, in addition to its other remedies
specified in this Lease, Landlord shall have the right to discharge the lien or
to transfer the lien claimed to bond or other security permitted by law and in
any such event Tenant shall pay all costs so incurred by Landlord immediately
upon demand therefor. Tenant shall advise all persons furnishing designs, labor,
materials or services to the Premises in connection with Tenant's improvement(s)
thereof of the provisions of this section.
Tenant has received the sum of Fifty and No/100 Dollars ($50.00) from
Landlord as consideration for the indemnification agreements of Tenant set forth
in this paragraph 17 and other provisions of this Lease.
17.2 If any excavation shall be commenced upon property adjacent to the
Premises, unless Tenant obtains a court order preventing or limiting such
excavation (and/or the manner or method thereof), Tenant shall:
(a) afford the persons lawfully authorized to undertake such
excavation the right to enter upon the Premises in a reasonable
manner to do such work as may be necessary to preserve any walls
or structures of the Premises from injury or damage and to
support the same by proper foundations; and, if requested by
Tenant, such entry and work shall be done in the presence of a
representative of Tenant, who shall be designated by Tenant by
Written Notice promptly upon Landlord's request; and
(b) undertake all such work, at Tenant's sole cost and expense, as
may be necessary to preserve any of the walls or structures of
the Premises from injury or damage and to support the same by
proper foundations.
Tenant shall not, by reason of any such excavation or work, have any claim
against Landlord for damages or for indemnify or for abatement or reduction of
any Rents payable by Tenant hereunder.
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SECTION 18. Surrender of Premises.
Upon expiration of the Term or other termination of this Lease, Tenant
shall peaceably and quietly leave and yield over to Landlord the Premises broom
clean, in the condition required under the terms, covenants, conditions, and
provisions of this Lease.
SECTION 19. Quiet Enjoyment.
Upon paying Fixed Rent and Additional Rent and otherwise observing all
terms, covenants, conditions and provisions of this Lease, Tenant shall and may
lawfully and quietly hold and enjoy the Premises during the Term of this Lease
without hindrance, ejection, molestation or interruption.
SECTION 20. Written Notices.
All notices, requests, demands, elections, consents, approvals and other
communication hereunder must be in writing (each such, a "Written Notice") and
addressed as follows (or to any other address which either party may designate
by Written Notice):
If to Landlord:
39 ACRE CORP.
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxxxx X. Xxxxxxxx
If to Tenant:
Eagle Supply, Inc.
0000 X. Xxxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxxxx
Any written Notice required by this Lease to be given or made within a
specified period of time, or on or before a date certain, shall be deemed to
have been duly given only if delivered by hand or mailed by first class,
registered mail, return receipt requested, postage and fees prepaid. A written
Notice sent by registered mail (as above) shall be deemed given when mailed. All
other Written Notices shall be deemed given when received.
SECTION 21. Real Estate Brokers.
21.1 No broker brought about this transaction. Tenant agrees to indemnify
and hold Landlord harmless from and against any commission or fee claimed by any
with whom Tenant
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has dealt in connection with the negotiation and execution of this Lease or any
matter whatsoever pertaining or related thereto, as well as all expenses which
Landlord incurs to defend against any such commission or fee (including, but not
limited to, attorneys, fees).
SECTION 22. Defaults; Remedies.
22.1 Events of Default
The following events shall be deemed to be events of default by Tenant
under this Lease:
22.1.1 Non-Payment of Rent
Tenant shall fail to pay any installment of Fixed Rent, Additional Rent or
any other charge or assessment required of Tenant pursuant to the terms hereof
within three (3) days after Tenant's receipt of Landlord's notice of said
failure.
22.1.2 Non-Compliance With Lease
22.1.2.1 Except as set forth in paragraph 22.1.2.2, below, Tenant
shall fail to comply with any term, provision, covenant or warranty made under
this Lease by Tenant, other than as described in paragraph 22.1.1 above, and
Tenant shall not cure such failure within thirty (30) days after Landlord's
notice thereof to Tenant. In the event Tenant cannot comply with such term,
provision, covenant or warranty within said thirty (30) day period, Tenant shall
not be in default if Tenant is making a diligent effort to comply with such
term, provision, covenant or warranty, and Tenant reimburses Landlord for
Landlord's reasonable out-of-pocket expenses resulting from Tenant's failure to
comply with said term, provision, covenant or warranty within said thirty (30)
day period and Tenant completes the cure of the default.
22.1.2.2 The failure by Tenant to observe or perform according to
the provisions of paragraphs 4, 7, or 14 of this Lease where such failure
continues for more than five (5) days after notice from Landlord.
22.1.3 Insolvency
Tenant or any guarantor of this Lease shall become insolvent, or shall
make a transfer in fraud of creditors or shall make an assignment for the
benefit of creditors.
22.1.4 Petitioning for Relief Under Bankruptcy Code
Tenant or any guarantor of this Lease shall file a petition under any
chapter of the federal bankruptcy act, as amended, or under any similar law or
statute of the United States or any state.
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22.1.5 Adjudged Bankrupt
There shall be filed against Tenant or any guarantor of this Lease an
involuntary petition in bankruptcy or insolvency or a similar proceeding, and
such filing or proceeding shall not be dismissed within ninety (90) days.
22.1.6 Appointment of a Receiver
A receiver or trustee shall be appointed for the Premises or for all
or substantially all of the assets of Tenant or any guarantor of this Lease.
22.1.7 Vacating Premises
Tenant's vacating or abandoning the Premises (it being expressly
agreed that Tenant's failure to occupy the Premises for thirty (30) consecutive
days without Landlord's prior approval shall be deemed an abandonment or
vacation of the Premises).
22.1.8 Sale by Legal Process
Tenant's interest under this Lease being sold under execution or other
legal process.
22.1.9 Modification by Operation of Law
Tenant's interest under this Lease being modified or altered by any
unauthorized assignment or subletting or by operation of law.
22.1.10 Impounding by Legal Proceeding
Any of the goods or chattels of Tenant used in, or incident to, the
operation of Tenant's business in the Premises being seized, sequestered, or
impounded by virtue of, or under authority of, any legal proceeding.
22.1.11 Failure to Take Occupancy of Premises
Tenant's failure to take occupancy of the Premises when same is
tendered by Landlord to Tenant, unless Fixed Rent has been prepaid to cover the
applicable period of non-occupancy.
In the event of the occurrence of any of the events described in paragraph
22.1, Landlord, at its election, may exercise one or more of the following
options, the exercise of any of which shall not be deemed to preclude the
exercise of any others herein listed or otherwise provided by statute or general
law at the same time or at subsequent times or actions:
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22.2.1 Take Possession of Premises
Reenter and retake possession of the Premises and relet or attempt to
relet the Premises on behalf of Tenant at such rent and under such terms and
conditions as Landlord may deem best under the circumstances for the purpose of
reducing Tenant's liability. Landlord shall not be deemed to have terminated
this Lease or thereby accepted a surrender of the Premises, and Tenant shall
remain liable for all Fixed Rent, Additional Rent, or other sums due under this
Lease and for all damages suffered by Landlord by reason of Tenant's breach of
any of the covenants of the Lease.
22.2.2 Terminate Lease
Declare this Lease in writing to be terminated, ended and null and
void, and reenter upon and take possession of the Premises, whereupon all right,
title and interest of Tenant in the Premises shall end.
22.2.3 Accelerate Payment of Rent
Accelerate and declare the entire remaining unpaid Fixed Rent and
Additional Rent for the balance of the Term of this Lease to be immediately due
and payable forthwith, and may, at once, take legal action to recover and
collect the present value of the same.
22.3 Right of Landlord to Cure Tenant's Default
If: (a) Tenant defaults in the making of any payment or in the doing of any
act herein required to be made or done by Tenant; or (b) Tenant defaults in the
making of payment to any third party, or doing any act required to be made or
done by Tenant for or on behalf of said third party relating to the Premises,
then Landlord may, but shall not be required to, make such payment or do such
act, and charge the amount of the expense thereof, if made or done by Landlord,
with interest thereon at the lesser of the rate of eighteen percent (18%) or the
maximum rate allowable by law, from the date paid by Landlord to the date of
payment thereof by Tenant. Such payment and interest shall constitute Additional
Rent hereunder due and payable with the next monthly installment of Fixed Rent;
but the making of such payment or the taking or such action by Landlord shall
not operate to cure such default or to stop Landlord from the pursuit of any
remedy to which Landlord would otherwise be entitled.
22.4 Right of Reentry
No reentry or retaking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention be given to Tenant, nor shall pursuit of any remedy
herein provided constitute a forfeiture or waiver of any Fixed Rent, Additional
Rent or other monies due to Landlord hereunder or of any damages accruing to
Landlord by reason of the violations of any of the terms, provisions and
covenants herein contained. Landlord's acceptance of Fixed Rent or Additional
Rent or other monies
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following any event of default hereunder shall not be construed as Landlord's
waiver of such event of default. No forbearance by Landlord of action upon any
violation or breach of any of the terms, provisions, and covenants herein
contained shall be deemed or construed to constitute a waiver of the terms,
provisions, and covenants herein contained. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall not
be deemed or construed to constitute a waiver of any other violation or default.
Legal actions to recover for loss or damage that Landlord may suffer by reason
of termination of this Lease or the deficiency from any reletting as provided
for above shall include the expense of repossession or reletting, including
brokerage commissions, and any repairs or remodeling undertaken by Landlord
following repossession.
22.5 Waivers
THE PARTIES HERETO SHALL, AND THEY HEREBY DO, WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THIS LEASE, THE BUILDING, AND/OR CLAIM OF INJURY OR DAMAGE. In
the event Landlord commences any proceeding to enforce this Lease or the
landlord/tenant relationship between the parties, or for nonpayment of Fixed
Rent, Additional Rent or additional monies due Landlord from Tenant under this
Lease, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceedings. In the event Tenant must, because of
applicable court rules, interpose any counterclaim or other claim against
Landlord in such proceedings, Landlord and Tenant covenant and agree that, in
addition to any other lawful remedy of Landlord, upon motion of Landlord, such
counterclaim or other claim asserted by Tenant shall be severed out of the
proceedings instituted by Landlord (and, if necessary, transferred to a court of
different jurisdiction), and the proceedings instituted by Landlord may proceed
to final judgment separately and apart from and without consolidation with or
reference to the status of each counterclaim or any other claim asserted by
Tenant.
22.6 Jurisdiction
The parties hereto agree that all suits for any and every breach of this
Lease shall be instituted and maintained only in the courts of competent
jurisdiction in the county or municipality in which the Premises are located. In
the event it shall become necessary (as determined by Landlord) for Landlord at
any time to institute or defend any legal action or proceedings of any nature
for the enforcement of, or as regards this Lease, or any of the provisions
hereof, or any of Landlord's statutory or common law rights as concern Tenant,
or to employ an attorney therefor, Tenant agrees to pay all court costs,
including without limitation attorneys' fees, paralegals fees and sales tax on
such fees and costs, incurred by Landlord, whether (a) a lawsuit is filed or
not; (b) at all trial and appellate levels; and (c) in all bankruptcy
proceedings.
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SECTION 23. Memorandum of Lease.
If either requests by Written Notice, Landlord and Tenant shall execute and
acknowledge a memorandum of this Lease sufficient for recording but otherwise
containing only the information required for such purpose by the applicable
recording law. Such memorandum shall not in any event be deemed to change,
affect or alter any of the terms, covenants, conditions or provisions of this
Lease.
SECTION 24. Miscellaneous.
24.1 This Lease shall be construed and enforced in accordance with, and
governed by, the laws of the State of Florida. This Lease embodies the entire
agreement and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof. This Lease
may not be modified or amended or any term or provision hereof waived or
discharged except in writing signed by the party against whom such amendment,
modification, waiver or discharge is sought to be enforced. Subject to Section
7, all the terms of this Lease, whether so expressed or not, shall be binding
upon the respective successors,, assigns and legal representatives of the
parties hereto and shall inure to the benefit of and be enforceable by the
parties hereto and their respective successors, assigns and legal
representatives. The headings of this Lease are for purposes of reference only
and shall not limit or otherwise affect the meaning thereof. This Lease may be
executed in reverse counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.
24.2 In this Lease, "Lease Interest Rate" means an annual rate of interest
two (2) percentage points higher than the prime lending rate of Chase Manhattan
Bank, N.A., New York, New York in effect during any period to which the Lease
Interest Rate shall apply. If no such prime rate can be identified, the Lease
Interest Rate shall be fifteen per cent (15%) per annum. However, in no event
shall the Lease Interest Rate exceed the maximum rate of interest permitted by
Laws for any loan by Landlord to Tenant.
24.3 Any liability of Landlord and/or Landlord's and/or Affiliates for
damages or otherwise under or with respect to this Lease shall be limited to
Landlord's interest in the Premises and the proceeds of any Insurance Policies
and/or Awards actually collected by Landlord. Landlord and Landlord's Affiliates
shall have no personal liability in excess of the foregoing; and no other
property or assets of Landlord or Landlord's Affiliates shall be subject to
levy, execution or any other procedure whatsoever for the satisfaction of
remedies.
24.4 Tenant is hereby given the option to terminate this Lease during the
remaining Term, at any time after the first anniversary of the commencement date
of the Term of this Lease, under the conditions hereinafter set forth, which
option may be exercised only as follows and providing that this Tenant is not
then in default. Upon written notice to the Landlord, sent or delivered as
hereinbefore provided, the Tenant may notify the Landlord that it intends to
terminate this Lease and vacate the Premises at a specified date in the future,
which date shall
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be not less than six (6) months after the date on which the said notice is sent
or delivered. Any such notice which purports to terminate this Lease as of a
date less than six (6) months after the sending or delivery of said written
notice shall be null and void and shall not be effective to terminate this Lease
as of any date. On or prior to the date specified by the Tenant in its notice,
Tenant shall vacate the Premises and the end of the Term of this Lease shall be
deemed to have been reached. In the event Tenant fails to vacate possession of
the Premises in accordance with its notice, Landlord may, at its option, either:
(a) treat the Lease as having come to the end of the Term; or (b) deem the
Tenant as leaving defaulted in exercising its option to terminate, in which
event the Term will continue as if the Tenant had not sought to exercise the
option to terminate. All obligations of the Tenant which are intended to survive
the Term shall survive the termination of this Lease by the exercise of this
option by the Tenant, including any default arising after the date of the
Tenant's aforesaid notice. The termination of the Term will not relieve the
Tenant of any obligations hereunder except for obligations which accrue after
the exercise of the option to terminate and the timely vacating of the Premises
by the Tenant in accordance with its notice to terminate.
24.5 If Tenant defaults in the performance of any of the covenants of this
Lease and by reason thereof Landlord employs the services of attorneys to
enforce performance of the covenants by Tenant, to evict Tenant, to collect
monies due by Tenant or to perform any other service based upon said default,
then, in any of said events, Tenant agrees to pay reasonable attorneys' fees and
all reasonable expenses and costs incurred by Landlord pertaining thereto and in
enforcement of any remedy available to Landlord including, without limitation,
any and all pretrial, trial, appellate and post-judgment proceedings.
SECTION 25. Right of First Refusal. If Landlord shall receive from any
third party, other than one controlled by any of Landlord's Affiliates, an
acceptable bona fide offer to purchase Premises, it shall submit a written copy
of such offer to Tenant, giving Tenant thirty (30) days within which to elect to
meet such offer. If Tenant elects to meet the terms and conditions of such
offer, it shall give Landlord Written Notice of the election within thirty (30)
days thereafter. If Tenant shall fail to make such election within such period
of time, Landlord shall be free to sell the Premises to such third party in
accordance with the terms and conditions of the foregoing offer.
SECTION 26. Radon Gas. Landlord hereby provides the following notice to
Tenant as required by Florida law:
Radon is a naturally occurring radioactive gas that when it has accumulated
in a building in sufficient quantities, may present health risks to persons who
are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
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IN WITNESS WHEREOF, THIS LEASE HAS BEEN DULY EXECUTED ON THE DAY AND
YEAR FIRST ABOVE WRITTEN.
EAGLE SUPPLY, INC.
_________________________ By:_________________________________
Print Name:______________
Name:_______________________________
Title:______________________________
Print Name:______________
39 ACRE CORP.
_________________________ By:_________________________________
Print Name:______________
Name:_______________________________
_________________________ Title:______________________________
Print Name:______________
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Schedule "A"
Description of the Premises
[INSERT TO COME]
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Schedule "B"
Required Insurance
In this Lease "Required Insurance" means:
(a) coverage insuring the Premises against loss or damage by fire,
windstorm, tornado, hail and all other hazards covered by the usual
extended coverage and "all risk" endorsements then commercially
available (including, without limitation, and specifically, damage by
water to the extent available) in an amount sufficient to prevent
Tenant or Landlord from becoming a co-insurer under provisions of
applicable policies of insurance, but in any event in an amount not
less than eighty percent (80%) of the actual replacement value thereof
(including the cost of debris removal, but excluding foundations and
excavations);
(b) insurance against liability for bodily injury and death and property
damage and boiler insurance as follows:
(i) comprehensive general public liability insurance containing the
so-called "occurrence" clause (which shall include specifically
the Premises and all parking areas, streets, bridges, alleys,
vaults and sidewalks appurtenant to the Premises);
(ii) the insurance against liability for bodily injury and death shall
be in an amount not less than Five Million Dollars ($5,000,000)
for any occurrence, and for property damage shall be in an amount
not less than Two Hundred Thousand Dollars ($200,000) for any
occurrence; and
(iii) with respect to any boilers on the Premises, boiler insurance
shall be in an amount not less than eighty per cent (80%) of the
actual replacement value of the Premises (including the cost of
debris removal, but excluding foundations and excavations).
(c) workers' compensation as required by law covering all persons employed
at the Premises;
(d) demolition and increased cost of construction coverage, in an amount
not less than fifteen per cent (15%) of the value of the Premises;
(e) rent insurance with "all risk" coverage in an amount at least equal to
the aggregate of Rents to be paid by Tenant during the last year of
the Term;
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(f) with respect to any sprinkler system in the Premises, sprinkler
leakage insurance in amounts approved by Landlord (which approval
shall not be unreasonably withheld or delayed); and
(g) other insurance in such amounts as Landlord may reasonably require
from time to time against such other insurance hazards as at the time
are commonly insured against in the case if similarly situated
properties.
Each Insurance Policy shall be accompanied by a Certificate of Insurance
which shall be delivered to the Landlord and which shall name the Landlord as an
additional insured and shall provide that the same shall not be cancelled except
after thirty (30) days prior Written Notice to Landlord (whether or not such
provision is obtainable only by payment of additional premium). No Insurance
Policy shall contain any endorsement permitting cancellation for default in
payment of a loan financing the premium. Each Insurance Policy shall include a
standard mortgagee clause without contribution pursuant to which all loss or
losses are payable to any mortgagee (or mortgagees) designated by Landlord from
time to time.
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Schedule "C"
Permitted Encumbrances
The following are "Permitted Encumbrances" to which this Lease is and shall be
subject and subordinate:
(a) any and all mortgages now or at any time hereafter constituting liens
on or against the Premises;
(b) zoning regulations and ordinances of the City of __________ which are
not violated by existing structures;
(c) any federal, state or local laws, ordinances, regulations and/or
orders whatsoever governing environmental quality or land use now or
hereafter in effect;
(d) consents by Landlord or any former owner for the erection of any
structure or structures on, under or above any street or streets on
which the Premises abut;
(e) encroachments of xxxxxx, areas, cellar steps, trim, and cornices, if
any, upon any street or highway;
(f) utility company rights, licenses, and/or easement to maintain poles,
lines, wires, towers, stations, cables, pipes, boxes and/or other
fixtures or installations presently serving, crossing, existing, or
granted on, under or with respect to the Premises;
(g) right, lack of right or restricted right of any owner of the Premises
to construct or maintain a vault or vaulted area in or under the
sidewalks abutting the Premises; and any licensing statute, ordinance,
or regulation, and/or the terms of any license pertaining thereto and
the rights, if any, of the City of __________ with respect to vaults
under the sidewalk beyond the building line of the Premises;
(h) existing or future designation of the Premises (or any portion
thereof) as an historic landmark, or designation of a district in
which the Premises are located as an historic district, and all
related restrictions applicable to the Premises;
(i) all other covenants, restrictions, easements, reservations or other
agreements (if any) of record against the Premises;
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(j) any certificate of occupancy (or amended certificate of occupancy)
issued with respect to the Premises, whether or not the same conforms
to the present condition, use or configuration of the Premises; and
(k) any and all laws, rules, regulations, codes, ordinances, statutes,
requirements, or directives of any kind whatsoever, present or future,
of or issued by any government entity whatsoever (including, but not
limited to, federal, state, county, and municipal governments), and
any and every violation or claimed violation of the same, affecting,
applicable to, or filed against the Premises, and/or the use,
occupancy and/or operation thereof.
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