EXHIBIT 10.11
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BUSINESS PROPERTY LEASE
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1. PARTIES.
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The Lease dated for reference purposes only, as of the 2nd day of
October, 1995, is made between LBJ PROPERTIES, a Florida General Partnership,
Landlord and hereinafter referred to as "LANDLORD"; and ▇▇▇'▇ ACQUISITION CORP.,
INC., Tenant and hereinafter referred to as "TENANT."
2. PREMISES.
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Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, that certain business property space described as follows: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, as outlined on the floor plan attached hereto
and made a part hereof, which the parties agree contains approximately 2,500
square feet of rentable space, hereinafter referred to as the "PREMISES" or
"DEMISED PREMISES," for the term hereinafter stated, for the rents hereinafter
reserved, all upon and subject to the terms, conditions and covenants
hereinafter reserved, all upon and subject to the terms, conditions and
covenants hereinafter proved. Any reference to this Business Property Lease
hereinafter shall be referred to as the "LEASE."
3. TERM.
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(a) INITIAL TERM. The initial term of this Lease shall be for a period of
five (5) years, and shall commence on October 2, 1995 and terminate at
5:00 P.M. on October 2, 2000.
(b) RENEWAL TERM. Providing this Lease is in full force and effect, Tenant
shall have the option to extend the term of this Lease for the Demised
Premises at the end of the initial five (5) year term for one period of
five (5) years beyond the initial term. The notification by Tenant to
exercise this option to renew this Lease for a subsequent five (5) year
term shall be made to Landlord, in writing, not less than One Hundred
Eighty (180) days prior to the expiration of the initial term. The
extended five (5) year term shall be upon the same terms, provisions,
covenants, and conditions as are contained in this Lease, except
otherwise set forth in this Lease as to payment of periodic rent and
such other provisions in this Lease which by its terms are only
applicable to the initial term. Tenant may not effectively exercise a
renewal option at any time that there exists an event of default or fact
or circumstance which, with the passage of time or the giving of notice
or both could become an event of default.
4. RENT.
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The rent reserved under this Lease for the initial term hereof shall be
and consist of:
(a) fixed monthly rent for the first five (5) years in the amount of
$18.00 per square foot, based on a square footage of 2,500 square feet for the
Demised Premises which shall not include Tenant's share of the proportionate
expenses identified in paragraph sixteen (16), and which shall be payable in
accordance with the terms thereof. Tenant's payment for the five (5) year/60
month initial term shall be Two Hundred Twenty Five Thousand $225,000.00)
dollars payable monthly at the rate of Three Thousand Seven Hundred Fifty
($3,750.00) Dollars per month plus applicable taxes as hereinafter defined in
this paragraph at subsection (d). Tenant shall pay the first month's rent upon
execution of this Lease;
(b) fixed monthly rent shall be increased annually, on the 2nd day of
October of each consecutive year, by an amount equal to the consumer price index
or four (4%) percent whichever is less and which shall be hereinafter referred
to adjusted rent, and shall be payable, in advance, on the first day of each and
every next consecutive calendar month thereafter during the term of this Lease.
For the purpose hereof, the consumer price index shall mean the Consumer Price
Index for Urban Wage Earners and Clerical Workers (Revised Series) (CPI-W)
Miami, Florida Region, All Items (November, 1977 = 100) issued by the Bureau of
Labor Statistics of the United States Department of Labor in the Current Labor
Statistics Section of the monthly Labor Review (final publication only);
(c) fixed monthly rent for the five (5) year option extension shall be
based annually upon the adjusted rental of the previous year, which adjusted
rental shall be increased by an amount equal to the consumer price index or four
(4%) percent whichever is less, and shall be payable, in advance, on the first
day of each and every next consecutive calendar month thereafter during the
extended term of this Lease;
(d) all taxes in the nature of sales, use or similar taxes, now or
hereafter assessed or levied by any taxing authority upon the payment of fixed
rent or additional rent, as hereinafter defined, and which the Landlord is
required or permitted to collect from Tenant, payable simultaneously with the
payment of fixed rent or additional rent;
(e) additional rent consisting of all such other sums of money as shall
become due from and payable by Tenant to Landlord hereunder (for default in
payment of which Landlord shall have the same remedies as for a default in
payment of fixed rent), all to be paid to Landlord in lawful money of the United
States of America.
(f) Tenant shall have a ten (10) day grace period on all rent payable
hereunder.
5. SECURITY DEPOSIT.
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Tenant, simultaneously with the execution of this Lease, has deposited
with Landlord the sum of Three Thousand Seven Hundred Fifty ($3,750.00) Dollars,
the receipt of which is hereby acknowledged (checks subject to collection),
which sum shall be retained by Landlord as security for the payment of rents by
Tenant and for Tenant's faithful performance of its obligations under this
Lease. Landlord, at Landlord's option, may, after Tenant has been provided ten
(10) days to cure any default, apply said sum or any part thereof toward the
payment of the rents and any other sum payable by Tenant under this Lease,
and/or toward the performance of each and every of Tenant's covenants under this
Lease shall thereby be discharged only pro tanto and Tenant shall remain liable
for any amounts that such sum shall be insufficient to pay. Landlord may exhaust
any or all rights and remedies against Tenant before resorting to said sum, but
nothing herein contained shall required or be deemed to required Landlord to do
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so. In the event this deposit shall not be utilized for any of such purposes,
then such deposit shall be returned by Landlord to Tenant within fifteen (15)
days after the expiration of the term of this Lease, less an amount, if any,
determined by Landlord to be reasonably necessary for the fulfillment of
Tenant's obligations that survive the term of this Lease, which amount shall be
immediately returned to Tenant upon fulfillment of such obligations. Promptly,
after five (5) days' notice of demand by Landlord, Tenant shall deposit with
Landlord such additional sum as may be necessary to replace any amounts expended
therefrom by Landlord pursuant to the provisions hereof, so that there shall
always be a security deposit with other funds and Landlord shall not be required
to pay Tenant any interest on said security deposit.
6. USE.
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The Tenant will use and occupy the premises for a retail and wholesale
pharmacy and sundry business and for no other purpose. Any other use and
occupancy must be approved by Landlord, in advance and in writing. Such approval
will not by unreasonably withheld by Landlord.
7. NO ASSIGNMENT.
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Tenant shall not either voluntarily or by operation of law assign,
transfer, mortgage, pledge, or otherwise encumber or dispose of this Lease
during the term thereof, or sublet the demised premises or any part thereof or
permit the premises to be occupied by any other person without the written
consent of Landlord first obtained in each case, and which consent shall not be
unreasonably withheld to an assignee maintaining the same use of the business
premises. Any attempted assignment, transfer, subletting, mortgage, pledge or
other disposition of this Lease or any other interest therein without such prior
written consent shall be voidable at the option of Landlord and shall constitute
a default under this Lease. If this Lease be assigned, or if the demised
premises or any part thereof be sublet or occupied by anybody other than the
Tenant, the Landlord may, at Landlord's option, after default by the Tenant,
collect rent from the assignee, subtenant or occupant and apply the net amount
collected to the rent herein reserved, but no such collection shall be deemed a
waiver of this covenant, or the acceptance of the assignee, subtenant or
occupant as Tenant or a release of the Tenant from the further observance and
performance by the Tenant of the covenants herein contained.
8. MAINTENANCE.
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(a) Landlord. Landlord will keep the roof, structural bearing walls,
the HVAC system, including all duct work, and the exterior walls of the building
of the demised premises in good repair and tenantable condition, unless the need
for such maintenance and repairs are caused in part or in whole by the act,
neglect, fault, or omission of any duty by the Tenant, its agents, servants,
employees or invitees, in which case Tenant shall pay to Landlord the reasonable
cost of such maintenance and repairs. Landlord shall not be liable for any
failure to make any such repairs or to perform any maintenance unless such
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failure shall persist for thirty (30) days after written notice of the need of
such repairs or maintenance is given to Landlord by Tenant. Except as provided
in Article thirteen (13) hereof for fire and other casualty, and except for
Landlord's failure to timely repair as provided in this paragraph, there shall
be no abatement of rent and no liability of Landlord by reason of any injury to
or interference with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the Building or the premises
or in or to fixtures, appurtenances and equipment therein. Tenant waives the
right to make repairs at Landlord's expense under any law, statute or ordinance
now or hereafter in effect, within the initial one hundred and thirty (30) days,
however, thereafter Tenant may make those repairs that Landlord had been
notified of in writing and failed to repair, in accordance with reasonable and
customary building standards, and reduce from the next successive payments of
rent the costs of those repairs.
(b) TENANT. Tenant will, at Tenant's sole cost and expense, keep all
other parts of the demised premises in good repair and tenantable condition
during the term of this Lease and will replace at Tenant's expenses any and all
incandescent and fluorescent lighting and ballast, any and all scratched or
broken glass or doors, and any and all overhead doors, partition walls, plumbing
and other mechanical or electrical equipment in and about said premises. Tenant
will at the termination of this Lease by lapse or time or otherwise, return said
premises to Landlord in as good condition as when received, loss by fire or
windstorm and ordinary wear excepted.
(c) ALTERATIONS. Tenant will make no material alterations, additions,
installations, substitutions, or improvements in or to the premises without the
written consent, and such consent shall not be unreasonably withheld, of the
landlord which consent shall be subject to and upon such terms and conditions as
Landlord may require and stipulate in such consent, including, without
limitation, (a) physical and spatial limitation, (b) governmental approvals, (c)
payment, (d) bonding, (e) subcontractors.
9. ACCEPTANCE OF PREMISES.
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Tenant having examined the premises is familiar with the condition
thereof and relying solely on such examination will take them in their present
condition, unless otherwise expressly agreed upon in writing. Tenant's having
taken possession of the premises shall be conclusive evidence that the premises
were in good order and satisfactory condition on the day Tenant took possession.
No promise of the Landlord to alter, remodel, or improve the premises and no
representation respecting the condition of the premises has been made by the
Landlord to the Tenant, unless contained herein or made a part hereof, and
Tenant will make no claim on account of any representations whatsoever, whether
made by any officer or other representative of Landlord or which may be
contained in any circular, or advertisement relating to the premises, unless the
same is specifically set forth in this Lease.
10. SECURITY.
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Tenant acknowledges that Tenant is solely responsible for the security
of persons and property both within the demised premises and immediately outside
the Premises and other common areas designated for the Tenant's use. Tenant
agrees to indemnify and hold Landlord harmless from any loss, cost or damage to
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person or property occurring on or about the premises or common areas and to the
extent practicable to purchase insurance to protect against such losses and
naming both Landlord and Tenant as parties insured thereby, insuring the parties
against any such claim.
11. INDEMNIFICATION AND INSURANCE.
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(a) Indemnification. Neither Landlord nor any agent or employee of
Landlord shall be liable to Tenant for any injury or damage to Tenant or to any
other persons or for damage, or loss (by theft or otherwise) of, any property of
Tenant or of any other person, irrespective of the cause of such injury,
damages, or loss, unless caused by or due to the negligence of Landlord, its
agents or employees without comparative negligence on the part of Tenant, it
being understood that no property, other than such as might normally be brought
upon or kept in the premises as an incident to the reasonable use of the
premises for the purposes herein permitted, will be brought upon or be kept in
the premises.
Tenant shall indemnify and save harmless Landlord and its agents
against and from any and all claims arising from the conduct or management of
the demised premises or of any business therein, or any work or thing whatsoever
done, or any condition created or permitted to exist (other than by Landlord for
Landlord's or Tenant's account) in or about the demised premises during the term
of this Lease or during the period of time, if any, prior to the commencement of
the term hereof that Tenant may have been given access to the demised premises,
or arising from any negligent or otherwise wrongful act or omission of Tenant or
any of its subtenants or its or their employees, agents or contractors, and all
costs, expenses and liabilities incurred in or in connection with each such
claim or action or proceeding brought thereon.
Tenant shall carry reasonable and customary public liability insurance,
in amount of One Million ($1,000,000.00) Dollars and with companies and on forms
reasonably acceptable to Landlord, naming both Landlord and Tenant as parties
insured thereby, insuring the parties against any such claim. All such policies
of insurance shall provide for not less than ten (10) days' notice to Landlord
as a condition precedent to cancellation. Such policy shall be delivered to
Landlord. Tenant shall provide Landlord with evidence of payment of renewal
premiums or replacement of policy and payment of premiums not later than ten
(10) days prior to the expiration of any such policy.
(b) INSURANCE PREMIUMS. Landlord shall at all times during the term
hereof maintain in effect a policy or policies of insurance covering the Demised
Premises, providing protection against any peril included within the
classification "Fire and Extended Coverage," and at Landlord's option, flood
insurance, insurance against sprinkler damage, vandalism, malicious mischief,
earthquake damage and abatement or loss of rent in case of said insured
casualties. Tenant shall not be obligated, responsible or liable to reimburse
Landlord throughout the term of this Lease for any costs and expenses incurred
by Landlord for such insurance.
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12. DESTRUCTION OR DAMAGE.
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In the event that the demised premises shall be destroyed or damaged or
injured by fire or other casualty during the term of this Lease, whereby all or
a part thereof shall be rendered untenantable, then Landlord shall have the
right to make such premises tenantable by repair within sixty (60) days
therefrom subject to extension for delays faced by Landlord due to adjustment of
insurance proceeds, labor trouble, governmental controls, so called Acts of God,
or any other cause beyond Landlord's reasonable control, but not to exceed
ninety (90) days. If in Landlord's sole opinion, which must be rendered within
thirty (30) days of the damage the premises are not capable of being rendered
tenantable within said time or if in fact the premises are not rendered
tenantable within said time either party shall have the option to cancel this
Lease, by written notice to the other, and in the event of such cancellation the
rental shall be paid only to the date of such fire or casualty and paid rent
refunded. During any time that the demised premises are untenantable due to
causes set forth in this paragraph, the rent or a just and fair proportion
thereof shall be abated.
No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the demised premises or of the building pursuant
to this paragraph. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's use and occupancy.
Notwithstanding any of the following provisions of this paragraph, if
Landlord, or the lessor of any superior lease or the holder of any superior
mortgage, as defined hereinafter, is unable to collect all of the insurance
proceeds (including rent insurance proceeds) applicable to damage or destruction
of the demised premises or the building by fire or other cause, by reason of
some action or inaction on the part of Tenant or any of its employees, agents or
contractors, then, without prejudice to any other remedies which may be
available against Tenant, there shall be no abatement of Tenant's rent, but the
total amount of such rents not abated (which would otherwise have been abated)
shall not exceed the amount of the uncollected insurance proceeds.
Landlord will not carry separate insurance of any kind on Tenant's
property, and except as provided by law or by reason of its fault or its breach
of any of its obligations hereunder, shall not be obligated to repair any damage
thereto or replace the same.
13. COMPLIANCE WITH LAWS, INSURANCE.
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Tenant shall during the entire term of this Lease, comply with all
statutes, ordinances, rules, orders, regulations, and requirements of the
federal, State, County and City Government, and of any and all their Departments
and Bureaus, applicable to said premises, and shall also comply with all rules,
order, and regulations of the Southeastern Underwriters Association for the
prevention of fires, all at Tenant's own cost and expense. If, by reason of any
failure of Tenant to comply with the provisions of this paragraph after five (5)
days' notice to cure, the rate of fire insurance with extended coverage on the
building or equipment or other property of Landlord shall be higher than it
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otherwise would be, Tenant shall reimburse Landlord at the higher rate. Tenant
shall reimburse Landlord, within five (5) days after written demand, for that
part of the premiums for fire insurance and extended coverage paid by Landlord
because of such failure on the part of Tenant.
14. ADDITIONAL RENT - COMMON AREA MAINTENANCE.
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(a) UTILITIES. In addition to all rentals herein specified, Tenant's
proportionate share shall be fifty (50%) of all utilities, used or consumed in
or upon the Demised Premises, which shall include all electric power usage and
charges, water usage and charges, and any garbage or trash collection fee
imposed by any governmental authority, any Agency designated to collect such
garbage or trash, as and when the charges therefor shall become due and payable.
(b) REAL PROPERTY TAXES. Tenant agrees to pay to the Landlord
throughout the term of this Lease, Tenant's Proportionate Share of all real
estate taxes and all assessments which may be levied against Landlord by the
local tax authorities and other governmental agencies. Tenant's proportionate
share of real estate taxes shall be fifty (50%) percent of any increase over the
base year which shall be 1995. Tenant will pay its proportionate share of real
estate taxes after the end of each calendar year Landlord when the Landlord
delivers to Tenant a computation of the Tenant's proportionate Share for the
prior calendar year based upon the base year of 1995. Tenant shall pay said
additional rent to Landlord within thirty (30) days after Landlord presents to
Tenant its proportionate share.
For the purposes of this Lease, the term "real estate taxes" shall
include all real estate taxes, assessments, water and sewer rents (except water
meter charges and sewer rent based thereon) and other governmental impositions
and charges of every kind and nature whatsoever, extraordinary as well as
ordinary, general and special, foreseen and unforeseen, and each and every
installment thereof (including any interest on amounts which may be paid in
installments) which shall or may, during the Lease term, be levied, assessed,
imposed, become due and payable, or liens upon, or arising in connection with,
the use, occupancy or possession of or become due and payable out of, or for,
the entire demise premises or any part thereof, and all costs incurred by
Landlord in contesting or negotiating the same with governmental authority.
Tenant hereby waives any right it may have by statute or otherwise to protest
real estate taxes so long as Landlord is contesting or negotiating the same with
the governmental authority. Nothing herein contained shall be construed to
include as a tax which shall be the basis of real estate taxes, any inheritance,
estate succession, transfer gift, franchise, corporation, income or profit tax
or capital levy that is or may be imposed upon Landlord; provided, however, that
if, any time after the date hereof the methods of taxation shall be altered so
that in lieu of or as a substitute for the whole or any part of the taxes now
levied, assessed or imposed on real estate as such, there shall be levied,
assessed or imposed (a) a tax on the rents received from such real estate, or
(b) a license fee measured by the rents receivable by Landlord or any portion
thereof, or (c) a tax or license fee imposed upon Landlord which is otherwise
measured by or based in whole or part upon any portion thereof. In addition to
the foregoing, should any governmental authority acting under any existing or
future law, ordinance or regulation, levy, assess or impose a tax, excise and/or
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assessment upon or against this Lease, the execution hereof and/or the Minimum
Rent, Percentage Rent and other charges payable by Tenant to Landlord whether by
way of substitution for or in addition to any existing tax or otherwise, and
whether or not evidenced by documentary stamps or the like, Tenant shall be
responsible for and shall pay such tax, excise and/or assessment, or shall
reimbursed Landlord for the amount thereof, as the case may be, after Tenant has
received thirty (30) days' written notification.
(c) Common area maintenance (CAM) includes real estate taxes, power and
electric usage, water usage, garbage and trash removal as above stated. The
assessment as rent for any increase in real estate taxes will be based upon 1995
as the base year. Therefore, there will be no assessment of real estate taxes
included in the CAM for the year 1995. Based upon the 1994 payments of electric
charges, water charges, garbage and trash removal the CAM will be approximately
$3.80 per square foot charges as additional rent. This additional rent will be
presented to the Tenant subsequent to the end of this year and each consecutive
year hereafter for Tenant's proportionate. An accounting will be provided when
the Landlord provides the statement of additional rent to Tenant.
15. DEFAULT, LANDLORD'S REMEDIES.
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All rights and remedies of the Landlord herein enumerated shall be
cumulative, and none shall exclude another or any other right or remedy provided
by law.
(a) If any voluntary or involuntary petition or similar pleading under
any section of any bankruptcy act shall be filed by or against Tenant, or any
voluntary or involuntary proceeding in any Court or tribunal shall be instituted
to declare Tenant insolvent or unable to pay Tenant's debts, then and in any
such event Landlord may, if Landlord so elects, but not otherwise, and with or
without notice of such election, and with or without entry or other action by
Landlord, forthwith terminate this Lease.
(b) If the Tenant defaults in the payment of rent or in the prompt and
full performance of any provisions of this Lease, or if the leasehold interest
or the Tenant's business or fixtures of Tenant are levied upon under execution
or attached by process of law, of if the Tenant makes an assignment for the
benefit of creditors, or if a receiver is appointed for any property of the
Tenant, or if the Tenant abandons the premises (abandoning shall be defined as
vacating, deserting, or surrendering the property) then and in any such event
the Landlord may, if the Landlord so elects, but not otherwise, and after three
(3) days' written notice thereof to Tenant, forthwith terminate this Lease and
Tenant's right to possession of the demised premise or terminate only Tenant's
right to possession hereunder. Whether or not Landlord so elects, Tenant agrees
to pay interest to Landlord on any past due payment of rent unless such payment
is made within ten days from the due date, at the interest rate of twelve (12%)
percent per annum.
(c) Upon any termination of this Lease, whether by lapse of time or
otherwise the Tenant shall surrender possession and vacate the premises
immediately, and deliver possession thereof to the Landlord, and hereby grants
to the Landlord full and free license to enter into and upon the premises in
such event with or without process of law to expel or remove the Tenant and any
others who may be occupying or within the premises and to remove any and all
property therefrom, using such force as may be necessary, without being deemed
in any manner guilty of trespass, eviction or forcible entry or detainer, and
without relinquishing the Landlord's rights to rent or any other right given to
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the Landlord hereunder or by operation of law. The Tenant expressly waives the
service of any demand for the payment of rent or for possession and the services
of any notice of the Landlord's election to terminate this Lease or to re-enter
the Landlord's election to terminate this Lease or to re-enter the Premises,
except as provided for in subparagraph (b) of this paragraph, and agrees that
the failure to cure any simple breach of any covenants or provisions of this
Lease within thirty (30) days after Tenant has been given written notice of said
Breach shall, of itself, without the service of any further notice or demand
whatsoever, constitute an unlawful detainer by Tenant of the premises within the
meaning of the Statutes of the State of Florida.
(d) If the Tenant abandons the premises or otherwise entitles the
Landlord so to elect, and the Landlord does elect to terminate the Tenant's
right to possession only, without terminating the Lease, the Landlord may at the
Landlord's option enter into the premises, remove the Tenant's signs and other
evidence of tenancy, and take and hold possession thereof without such entry and
possession terminating the Lease or releasing the Tenant, in whole or in part
from the Tenant's obligation to pay the rent hereunder for the full term, and in
any such case the Tenant shall pay forthwith to the Landlord a sum equal to the
entire amount of the rent reserved under paragraphs four (4) and sixteen (16) of
the Lease for the residue of the stated term plus any other sums then due
hereunder. Upon and after entry into possession without termination of the
Lease, the Landlord may, but need not, relet the premise or any part thereof for
the account of the Tenant to any person, firm or corporation other than the
Tenant for such rent, for such time and upon such terms as the Landlord in the
Landlord's sole discretion shall determine; however the Landlord shall use
reasonable commercial and community standards, nevertheless, the Landlord shall
not be required to accept any tenant offered by the Tenant or to observe any
instructions given by the Tenant about such reletting. In any such case, the
Landlord may make repairs, alterations and additions in or to the premises, and
redecorate the same to the extent deemed by the Landlord necessary or desirable
in order to restore the premises to their condition when the Tenant accepted the
premises, and the Tenant shall, upon demand, pay the cost thereof, together with
the Landlord's expenses of the reletting, including that portion of the leasing
commission paid by Landlord and applicable to the unexpired term of this Lease.
If the consideration collected by the Landlord upon any such reletting for the
Tenant's account is not sufficient to pay monthly the full amount of the rent
reserved in this Lease, together with the costs of leasing commissions actually
paid to obtain such reletting, repairs, alterations, additions, and
redecorating, Tenant agrees to pay the amount of each monthly deficiency within
five (5) days after written notification to Tenant; and if the consideration so
collected from any such reletting is more than sufficient to pay the full amount
of the rent reserved herein, together with the costs and expenses of the
Landlord, the Landlord, at the end of the stated term of Lease, shall account
for the surplus to the Tenant.
(e) Tenant hereby irrevocably appoints Landlord as agent and
attorney-in-fact of Tenant, to enter upon the premises in the event of default
by Tenant in the payment of any rent herein reserved, or in the performance of
any term, covenant or condition herein contained to be kept or performed by
Tenant, and to remove any and all furniture and personal property whatsoever
situated upon the premises. Any and all property which maybe removed from the
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premises by the Landlord pursuant to the authority of this Lease or of law to
which the Tenant is or may be entitled, may be handled, removed or stored by
Landlord at the risk, cost and expense of Tenant, and Landlord shall in no event
be responsible for the value, preservation or safekeeping thereof. Tenant shall
pay to Landlord, upon demand, all expenses incurred in such removal and all
storage charges against such property so long as the same shall be in Landlord's
possession or under landlord's control. Landlord may place such property in
storage for the account of, and at the expense of Tenant, and if Tenant fails to
pay the cost of storing such property after it has been stored for a period of
ninety (90) days or more, Landlord may sell any or all or such property in such
manner and at such time and places as Landlord in his sole discretion may deem
proper, without notice to or demand upon Tenant for the payment of any part of
such charges or the removal of any of such property and shall apply the proceeds
of such sale first to the cost and expenses of such sale, including reasonable
attorney's fees; second, to the payment of the costs and charges of storing any
property; third, to the payment of any other sums of money which may then or
thereafter be due to Landlord from Tenant under any of the terms hereof; and
fourth, the balance, if any, to Tenant. The removal and storage of Tenant's
property, as above provided, shall not constitute a waiver of Landlord's lien
thereon.
16. SUBORDINATION.
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(a) AUTOMATIC SUBORDINATION. This Lease, and all rights of Tenant
hereunder, are and shall be subject and subordinate to all ground leases,
overriding leases and underlying leases affecting the demised premises now or
hereafter affect the demised premises and to each and every advance made or
hereafter to be made under such mortgages, and to all renewals, modifications,
replacements and extensions of such leases and mortgages and spreaders and
consolidations of such mortgages (which leases and mortgages are sometimes
collectively referred to herein for convenience as the "superior lease' or
"superior mortgage"). This paragraph shall be self-operative and no further
instrument of subordination shall be required to make it effective. However,
Tenant shall promptly execute and deliver any instrument reasonably requested to
evidence such subordination. Nothing contained within this paragraph shall have
the effect of altering or modifying Tenant's rights under this lease.
(b) NOTICE. Tenant agrees that in the event of any act or omission by
the Landlord which would give Tenant the right to terminate this Lease or to
claim a partial or total eviction, Tenant shall not exercise any such right
until he has notified in writing the holder of any such mortgage which at the
time shall be a lien on the demised premises or the underlying lessor, if any of
such act or omission, and shall have given such mortgages or underlying lessor
ten days opportunity to cure said breach.
(c) ATTORNMENT. If the lessor of any such lease or the holder of any
such mortgage shall succeed to the rights of Landlord under this Lease, then at
the request of such party succeeding to Landlord's rights and upon such
successor Landlord's written agreement to accept Tenant's attornment, Tenant
shall attorn to such successor Landlord and will execute such instruments as may
be necessary or appropriate to evidence such attornment. Upon such attornment,
this Lease shall continue in full force and effect as, or as if it were, a
direct lease between the successor Landlord and Tenant upon all the terms,
conditions and covenants as are set forth in this Lease and shall be applicable
10
after such attornment except that the successor Landlord shall not (i) be liable
for any previous act or omission of Landlord under this Lease, (ii) be subject
to any offset, not expressly provided for in this Lease, which shall have
theretofore accrued to Tenant against Landlord and (iii) be bound by any
previous modification of this Lease, not expressly provided for in this Lease,
or by any previous prepayment of more than one month's fixed rent unless such
modification or prepayment shall have been expressly approved in writing by such
Landlord or such holder through or by reason of which the successor Landlord
shall have succeeded to the rights of Landlord under this Lease.
(d) CERTIFICATE. Tenant shall deliver to Landlord or to its mortgagee,
or auditors, or prospective purchaser, or the owner of the fee when requested by
Landlord, a certificate to the effect that this Lease is in full force and that
Lessor is not in default therein, or stating specifically any exceptions
thereto. Failure to give such a certificate within ten (10) business days after
written request shall be conclusive evidence that the Lease is in full force and
effect and Landlord is not in default, and in such event, Tenant shall be
estopped from asserting any defaults known to Tenant at that time.
17. WAIVER.
------
The failure of either the Landlord or Tenant to insist in any one or
more instances upon the strict performance of any one or more of the obligations
of this Lease, or to exercise any right or election herein contained, shall not
be construed as a waiver or relinquishment for the future of the performance of
such one or more obligations of this Lease or of the right to exercise such
election, but the same shall both continue and remain in full force and effect
with respect to any subsequent breach, act or omission.
18. WAIVER OF TRAIL BY JURY.
-----------------------
Landlord and Tenant hereby waive trial by jury in a summary proceeding
or in any action based upon nonpayment of rent or failure of Tenant to pay any
other payment defined hereunder as additional rent as required of Tenant.
However, nothing contained herein shall be deemed a waiver by Tenant or Landlord
of a trial by jury of any action, proceeding or counterclaim brought by either
of the parties hereto against the other on any matter arising out of or in any
way connected with this lease, the relationship of Landlord and Tenant, or
Tenant's use or occupancy of the premise Tenant further agrees that it shall not
interpose any counterclaim or counterclaims in any summary proceedings based on
non payment of rent.
19. RULES AND REGULATIONS.
---------------------
It is mutually agreed that all the rules and regulations included with
this instrument shall be and arc hereby made a part of this Lease, and Tenant
covenants and agrees that it and its employees, servants and agents will at all
times observe, perform and abide by said rules and regulations as they exist and
as they may be amended hereafter from time to time.
11
20. LIENS.
-----
Tenant further agrees that Tenant will pay all of Tenant's contractors,
subcontractors, mechanics, laborers, materialmen and all others, and will
indemnify Landlord against all reasonable legal costs and reasonable charges,
bond premiums for release of liens, and reasonable counsel fees reasonably
incurred in the commencement or defense of any suit by the Landlord to discharge
any liens, judgments, or encumbrances against the premises caused or suffered by
Tenant. It is understood and agreed between the parties hereto that the costs
and charges above referred to shall be considered as rent due under this Lease
payable upon demand.
The Tenant shall not have any authority to create any liens for labor
or material on the Landlord's interest in the above-described property, and all
persons contracting with the Tenant for the doing of any work or the furnishing
of any materials on or to the premises, and all materialmen, contractors,
mechanics, and laborers, are hereby charged with notice that they must look to
the Tenant only to secure the payment of any ▇▇▇▇ for work done or material
furnished during the term of this Lease.
21. TRANSFER BY LANDLORD.
--------------------
In the event that the interest or estate of Landlord in the premises
shall terminate by operation of law or bona fide sale of the premises or by
execution or foreclosure sale, or for any other reason, then and in any such
event Landlord shall be released and relieved from all liability and
responsibility as to obligations to be performed by Landlord hereunder or
otherwise. In such event Landlord's successor, by acceptance of rent from Tenant
hereunder, and receipt of Tenant's security deposit shall become liable and
responsible to Tenant in respect to all such obligations of Landlord under this
Lease. However, Landlord shall not be relieved from any liability or
responsibility as to any claim that occurred prior to Landlords termination by
operation of law or bona fide sale of the premises or by execution or
foreclosure sale, or for any other reason.
22. CONDEMNATION.
------------
In the event any portion of the demised premises is taken by any
condemnation or eminent domain proceeding or should the demised premises be
conveyed in lieu of such a taking and this Lease continues in force as to any
part of the demised premises, as hereinafter provided, the base monthly rental
herein specified to be paid shall be ratably reduced according to the area of
the demised premises which is actually taken, as of the date of such taking, and
tenant shall be entitled to no other consideration by reason of such taking, and
any damages whatsoever suffered by Tenant and occasioned by such taking shall
not entitle Tenant to share to and extend in any and all income, rent, awards or
any interest therein whatsoever which may be made in connection with such a
taking and Tenant does hereby relinquish and assigns to Landlord all Tenant's
rights and equities in and to any such income, rent, awards or any interest
therein. Nothing contained herein shall interfere with any rights that tenant
may have independently against the condemning authority.
In the event of a partial taking of the building, either by
condemnation, eminent domain or conveyance in lieu thereof, Landlord or Tenant
may elect to terminate this Lease if the remaining area of the building shall
13
not be reasonably sufficient for Landlord or Tenant to continue feasible and
economical operation of the remaining portion of the building, and, in the event
of a partial taking of the demised premises, Tenant may elect to terminate this
Landlord if the remaining area of the demised premises shall not be reasonably
sufficient for Tenant to continue feasible operation of its business. Either
party hereto shall give notice of such election to the other not later than
thirty (30) days after (i) notice of such taking is given by Landlord to Tenant,
or (ii) the date of the taking, whichever occurs later. Upon the giving of such
notice this Lease shall terminate on the date of service of such notice, and the
rents apportioned to the part of the demised premises so taken shall be prorated
and adjusted as of the date of the taking and the rents apportioned to the
remainder of the demised premises shall be prorated and adjusted as of such
termination date.
Should all the demised premises be so taken, this Lease shall terminate
as of the date of such a taking and in that event Tenant shall be entitled to no
damages or any consideration by reason of such taking, except the cancellation
and termination of Tenant's obligations under this Lease as of the date of said
taking.
23. PEACEFUL POSSESSION.
-------------------
So long as Tenant pays all of the fixed rent and additional rent and
charges due hereunder and performs all of Tenant's other obligations hereunder
Tenant shall peaceably and quietly have, hold and enjoy the demised premise
throughout the term of the Lease, without interference or hindrance by Landlord
or any person claiming by, through or under Landlord.
24. ACCESS, CHANGES IN BUILDING FACILITIES NAME.
-------------------------------------------
Except for the inside surfaces of all walls, windows and doors bounding
the demised premises, all of the building, including exterior building walls,
core corridor walls and doors and any core corridor entrance, any terraces or
roofs adjacent to the demised premises, and any space in or adjacent to the
demised premises used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks or other building facilities, and the use
thereof, as well as access thereto through the demised premises for the purpose
of operation, maintenance, decoration and repair, are reserved to Landlord,
notwithstanding Tenant's obligations to maintain and repair as elsewhere set
forth herein, which obligations are not negated by Landlord's reservation and
right of access set forth herein.
Tenant shall permit Landlord to install, use and maintain pipes, ducts
and conduits within the demising walls, bearing columns and ceilings of the
demised premises.
Landlord and Landlord's agent shall have the right, upon request, to
enter or pass through the demised premises or any part thereof, at reasonable
times during reasonable hours and upon reasonable notice (i) to examine the
demised premises and to show them to the fee owners, lessors of superior leases,
holders of superior mortgages, or prospective purchasers, mortgagees or lessees
of the building as an entirety, and (ii) for the purpose of making such repairs
or changes in or to the demised premises or in or to the building or its
13
facilities as may be provided for by this Lease or any may be mutually agreed
upon by the parties or as Landlord may be required to make by law in order to
repair and maintain the building or its fixtures or facilities. Landlord shall
be allowed to take all materials into and upon the demised premises that may be
required for such repairs, changes or maintenance, without liability to
Landlord. Landlord shall use best efforts to complete repairs in such a manor so
as not to unreasonably interfere with tenant's quiet enjoyment of the premises.
Landlord shall also have the right to enter on and/or pass through the demised
premises, or any part thereof, at such times as such entry shall be required by
circumstances of emergency affecting the demised premises or the building.
During the period of eighteen (18) months prior to the end of the term
hereof, Landlord may exhibit the demised premises to prospective tenants, upon
advance and proper notification to Tenant.
Landlord reserves the right, at any time after completion of the
building, without incurring any liability to Tenant therefor, to make such
changes in or to the building and the fixtures and equipment thereof, as well as
in or to the street entrances, halls, passages, elevators, loading docks and
stairways thereof, as it may deem necessary or desirable. In other than any
situation which Landlord deems it necessary to preserve, secure, or reduce
further damage, the Landlord shall provide Tenant with five (5) days' written
notice prior to commencement of said repairs to Tenant's premises.
Landlord may adopt any name for the building. Landlord reserves the
right to change the name or address of the building at any time.
25. SURRENDER, HOLDING OVER.
-----------------------
On the last day of the term of this Lease, or upon any earlier
termination of this Lease, or upon any re-entry by Landlord upon the demised
premises, Tenant shall peaceably and without notice of any sort, quit and
surrender the demised premises to Landlord in good order, condition and repair,
except for ordinary wear and tear and such damage or destruction as landlord is
required to repair or restore under the terms of this Lease, and Tenant shall
remove all of the Tenant's property therefrom. Tenant specifically agrees, that
in the event Tenant retains possession and does not so quit or surrender the
demised premises to Landlord, then Tenant shall pay to Landlord (i) all
reasonable damages that Landlord may suffer on account of Tenant's failure to so
surrender and quit the demised premises, and Tenant will indemnify and save
Landlord harmless from and against any and all claims made by any succeeding
tenant of the demised premises against Landlord on account of delay of Landlord
in delivering possession of the demised premises to said succeeding tenant to
the extent that such delay is occasioned by the failure of Tenant to so quit and
surrender said premises and (ii) rent for each month or any applicable portion
of a month of such holding over at twice the amount payable for the month
immediately preceding the termination of this Lease, during the time the Tenant
thus remains in possession. The provisions of this paragraph do not waive any of
the Landlord's rights of re-entry or any other right under the terms of this
Lease. If Tenant shall fail to surrender the premises as herein provided, no new
tenancy shall be created and Tenant shall be guilty of unlawful detainer. No
surrender of this Lease or of the premises shall be binding on the Landlord
unless acknowledged by Landlord in writing.
14
26. CONSTRUCTION, APPLICABLE LAW.
----------------------------
The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in masculine gender include the
feminine and neuter. If there be more than one Landlord or Tenant, the
obligations imposed hereunder upon the Landlord or Tenant shall be joint and
several. The section headings or titles in this Lease are not a part hereof and
shall have no effect upon the construction or interpretation of any part hereof.
This Lease shall be construed and enforced under the laws of the State of
Florida. Should any provisions of this Lease be illegal or unenforceable under
such laws, it or they shall be considered severable and this Lease and its
conditions shall remain in force and be binding upon the parties hereto just as
though the illegal or unenforceable provisions had never been included herein.
27. BROKER.
------
Landlord and Tenant covenants, warrants and represents, each to the
other, that there were not conversations or negotiations concerning the renting
of the demised premises with any broker(s). Each party agrees to hold the other
harmless from and against, and agrees to defend at it own expense, any and all
claims for a brokerage commission arising out of any alleged conversation or
negotiations had by such party with any person.
28. NOTICES.
-------
Any notice, statement, demand or other communication required or
permitted to be made by either party to the other, pursuant to this Lease or
pursuant or any applicable law, shall be in writing and shall be deemed to have
been properly given and made if sent by registered or certified mail, return
receipt requested, addressed to the other party at the address hereinafter set
forth or at such other address as may hereafter be designated by either party by
notice to the other and shall be deemed to have been given or made on the day so
mailed. Either party may, by notice given as aforesaid, designate a different
address or addresses or notices, statements, demands or other communications
intended for it.
Notice to Landlord: LBJ PROPERTIES
▇▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Notice to Tenant: ▇▇▇'▇ ACQUISITION CORP.
▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
29. ENTIRE AGREEMENT.
----------------
The undersigned hereby acknowledges that the Lease Agreement contains
the entire agreement between the parties hereto and all previous negotiations
leading hereto, and it may be modified only by agreement in writing signed and
sealed by the Landlord and Tenant.
15
IN WITNESS WHEREOF, The Landlord and Tenant have duly signed and
executed these presents at the City of Miami, Dade County, Florida on this 2nd
day of October, 1995.
Signed, Sealed and Delivered in the LANDLORD:
Presence of:
LBJ PROPERTIES, a Florida general
partnership
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- ----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, General Partner
---------------------------------
(As to Landlord)
TENANT:
▇▇▇'▇ ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
----------------------------------
(As to Tenant)
ATTEST:
----------------------------
Secretary
16
RULES AND REGULATIONS
---------------------
1. The sidewalks, entrances, passages, stairways, corridors, or halls shall not
be obstructed or encumbered by any Tenant or used for any purpose other than
ingress and egress to and from the Demised Premises.
2. No awnings or other projections shall be attached to the outside walks of the
building without the prior written consent of the Landlord. No curtains, blinds,
shades or screens shall be attached to or hung in, or used in connection with,
any window or door of the Demised Premises, without the prior written consent of
the Landlord. Such awnings, projections, curtains, blinds, shades, screens, or
other fixtures must be of a quality, type, design and color, and attached in the
manner approved by the Landlord.
3. No sign, advertisement, notice, or other lettering shall be exhibited,
inscribed, painted, or affixed by any Tenant on any part of the outside or
inside of the Demised Premises or building without the prior written consent of
the Landlord. In the event of the violation of the foregoing by any Tenant,
Landlord may remove same without any liability, and may charge the expense
incurred by such removal to the Tenant or Tenants violating this rule. Interior
signs on doors and directory table shall be inscribed, painted or affixed at the
expense of the Tenant, and shall be of a size, color, and style acceptable to
the Landlord.
4. The doors that reflect or admit light and air into the halls, passageways, or
other public places in the building shall not be covered or obstructed by any
Tenant, nor shall any parcels or other materials be placed in the doorways.
5. The water and was closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were constructed and so sweepings,
rubbish, rags or other substances shall be thrown therein. All damages resulting
from any misuse of the fixtures shall be borne by the Tenant who, or whose
servants, employees, agents, visitors, or licensees, shall have caused the same.
6. No Tenant shall ▇▇▇▇, paint, drill into, or in any way deface any part of the
demised premises or the building of which they form a part. No boring, cutting,
or stringing of wires shall be permitted, except with prior written consent of
the Landlord, and as it may direct.
7. No animals of any kind shall be maintained or kept in or about the premises,
by the Tenant. No Tenant shall cause or permit any unusual or objectionable
odors to be produced upon or permeate from the demised premises.
8. No Tenant shall make, or permit to be made, any objectionable or disturbing
noises or disturb or interfere with occupants of this neighboring buildings or
Premises or those having business with them, whether by the use of any musical
instrument, radio, unmusical noise, or in any other way. No Tenant shall throw
anything out of the doors, windows, or skylights, or down the passageways.
9. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any change be made in existing locks
or the mechanism thereof, unless Landlord shall first be provided means of
access in case of emergency. Each Tenant must, upon termination of his tenancy,
restore to the Landlord all keys of offices and toilet rooms either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of any
keys so furnished, such Tenant shall pay to the Landlord the cost of thereof.
10. No Tenant shall occupy or permit any portion of the premise demised to him
to be used for manufacturing, for residential purposes or for the possession,
storage, manufacture, or sale of liquor or unlicensed narcotics.
11. The premises shall not be used for gambling, lodging or sleeping or for any
immoral or illegal purposes.
12. Canvassing, soliciting, and peddling in the building is prohibited and each
Tenant shall cooperate to prevent the same.
13. The Landlord specifically reserves the right to refuse admittance to the
building after hours, or on Sundays or on legal holidays, to any person or
persons who cannot furnish satisfactory identification, or to any person or
persons who, for any other reason in the Landlord's judgment, would be denied
access to the premise .
14. No Tenant, nor any of the Tenant's servants, employees agents, visitor, or
licensees, shall at any time bring or keep upon the demised premises any
inflammable, combustible, or explosive fluid, chemical, or substance.
15. The Landlord reserves the right to make such other and further reasonable
rules and regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Premises, and for the preservation of good
order therein, and any such other of further rules and regulations shall be
binding upon the parties hereto with the same force and effect as if they had
been inserted herein at the time of the execution hereof.
16. The Tenant assumes all risk of any damage to Tenant's property that may
occur by reason of water or the bursting or leaking of any pipes or waste water
about said premises or from any act of negligence of any co-tenant or occupants
of the building, or for any other person, or fire, or hurricane, or other act of
God, or from any cause whatsoever. The Landlord shall not be liable for any
water damage whatever.
2