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EXHIBIT 10.24
REALTY LEASE
THIS REALTY LEASE ("Lease") is made and entered into as of
September 5, 1996, by and between Interior Design Services, Inc., a Florida
corporation ("Landlord") and Catalina Marketing Corporation, a Delaware
corporation ("Tenant").
WITNESSETH:
Landlord and Tenant hereby covenant and agree as follows:
1. Premises
1.1 Premises. Landlord owns real property and improvements
located at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("11200
Realty"), which includes a single story section of the building currently used
as a warehouse consisting of approximately 54,859 rentable square feet
("Warehouse"). Upon and subject to the terms, covenants and conditions
hereunder, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord approximately 20,500 rentable square feet on the west end of the
Warehouse, as shown on the floorplan of the Warehouse attached hereto as Exhibit
A and incorporated herein ("Premises"), together with the parking areas
identified as "Tenant Parking" on Exhibit A. Tenant shall cooperate with
Landlord in the use of such Tenant Parking areas so as to provide Landlord with
unobstructed access to the Warehouse dock doors identified on Exhibit A.
1.2 Condition of the Premises. Tenant acknowledges that it has
been given the opportunity to inspect the Premises prior to the Commencement
Date (as defined in Section 2.1 below). Landlord leases the Premises to Tenant
and Tenant accepts the Premises from Landlord on the Commencement Date in "as
is" condition, without any representation or warranty as to any patent or latent
defects or of habitability or fitness for a particular purpose. Notwithstanding
the foregoing, Landlord shall be responsible for ensuring that the Premises
comply with the requirements of the American with Disabilities Act, 42 U.S.C.
12101, except to the extent that any Tenant Improvement Work or Alterations (as
those terms are hereinafter defined) made to the Premises by Tenant may initiate
the need for such compliance, in which event, Tenant shall be responsible for
such compliance.
2. Term
2.1 Term. This Lease term (the "Primary Term") shall commence
on November 1, 1996 ("Commencement Date") and expire on November 30, 2003
("Expiration Date"), unless the Term shall sooner terminate or be extended as
hereinafter provided.
2.2 Early Occupancy. Tenant may occupy the Premises commencing
September 15, 1996 ("Early Occupancy Period") provided that during the Early
Occupancy Period, Tenant shall perform all of its obligations set forth in this
Lease, but Tenant's obligation to pay Monthly Rent (as defined in Section 3.1
below) shall not commence until November 1, 1996.
2.3 Tenant's Option to Renew. Tenant shall have the option to
renew this Lease for one additional term of five (5) years commencing at the end
of the Primary Term, which option Tenant may only exercise by giving Landlord
written notice not less than one hundred eighty (180) days prior to the
expiration of the Primary Term, and provided no event of default under Article
17 has occurred and is continuing on or after the date of Tenant's notice. Such
renewal term shall be on the same terms and conditions as the Primary Term,
except that Monthly Rent payable during
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the renewal term shall be as follows:
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Year Rent
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December 1, 2003 - November 30, 2004 $7,109.94
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December 1, 2004 - November 30, 2005 $7,216.59
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December 1, 2005 - November 30, 2006 $7,324.84
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December 1, 2006 - November 30, 2007 $7,434.72
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December 1, 2007 - November 30, 2008 $7,546.24
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The terms "Term" or "Term of this Lease," as used in this Lease, shall include
the Primary Term as well as the renewal term, if exercised.
2.4 Tenant's Expansion Option.
Tenant shall have the Right of First Opportunity to Lease on
any available space in the Warehouse ("Additional Space"). When the Additional
Space becomes available, Landlord shall notify Tenant in writing of such
availability and Tenant shall be granted ten (10) business days in order to
accept or reject the offer in writing. Failure to respond within ten (10)
business days shall be deemed a rejection of such Additional Space. If Tenant
rejects such Additional Space, Landlord shall then be free to lease such
Additional Space to others on such terms and conditions as Landlord may chose,
and Tenant shall have no further rights with respect to such Additional Space.
As to any Additional Space, if warehouse space ("Additional
Warehouse Space"), during the first twelve (12) months for which any such
Additional Warehouse Space is included within this Lease ("Initial Period For
Additional Warehouse Space"), the rental rate to be paid for the Additional
Warehouse Space ("Additional Warehouse Space Rental Rate") shall be the then
current per square foot rate paid by Tenant for the warehouse portion of the
Premises under this Lease,which rate shall then subsequently increase annually
by one and one-half percent (1 1/2%) from and after the conclusion of the
Initial Period For Additional Warehouse Space.
As to any Additional Space, if office space ("Additional
Office Space"), during the first twelve (12) months for which any such
Additional Office Space is included within this Lease ("Initial Period For
Additional Office Space"), the rental rate to be paid for the Additional Office
Space ("Additional Office Space Rental Rate") shall be the then current market
rate per square foot for comparable office space situated in St. Petersburg,
Florida, which rate shall then subsequently increase annually by one and
one-half percent (1 1/2%) from and after the conclusion of the Initial Period
For Additional Office Space.
The lease term of the Additional Space shall be co-terminous
with the Term and Tenant shall lease the Additional Space in as-is condition.
3. Rent
3.1 From and after the Commencement Date, Tenant shall pay to
Landlord monthly base rent ("Monthly Rent") as follows:
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Year Rent
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November 1, 1996 - November 30, 1997 $6,406.25
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December 1, 1997 - November 30, 1998 $6,502.34
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December 1, 1998 - November 30, 1999 $6,599.88
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December 1, 1999 - November 30, 2000 $6,698.88
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December 1, 2000 - November 30, 2001 $6,799.36
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December 1, 2001 - November 30, 2002 $6,901.35
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December 1, 2002 - November 30, 2003 $7,004.87
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Monthly Rent shall be payable on or before the first day of each calendar month,
in advance, at the address specified for Landlord in Section 21 below, or such
other place as Landlord shall designate, without any prior demand therefor and
without any abatement, deduction or setoff whatsoever except to the extent of
Landlord's breach of its obligations hereunder. In addition, Tenant shall pay
Landlord all state and local sales taxes and surtaxes payable with respect to
rents, which shall be paid together with each installment of Monthly Rent.
3.2 Notwithstanding any other provisions of this Lease, if
Tenant shall fail to pay any Monthly Rent by the date five (5) days after the
date it is due and payable, such unpaid amount shall be subject to a late
payment charge equal to five percent (5%) of such unpaid amount in each instance
to cover Landlord's additional administrative costs resulting from Tenant's
failure. Such late payment charge has been agreed upon by Landlord and Tenant,
after negotiation, as a reasonable estimate of the additional administrative
costs and detriment to Landlord's ability to meet its own obligations relating
to the Warehouse in a timely manner that will be incurred by Landlord as a
result of any such failure by Tenant, the actual cost thereof in each instance
being extremely difficult, if not impossible, to determine. Such late payment
charge shall constitute liquidated damages to compensate Landlord for its
damages resulting from such failure to pay and shall be paid to Landlord
together with such unpaid amounts; provided, however, that the payment of such
charges shall not constitute a waiver of any default by Tenant hereunder.
3.3 Notwithstanding any other provisions of this Lease, any
installment of Monthly Rent not paid to Landlord by the date five (5) days after
the date when due hereunder, shall bear interest from the date due or from the
date of expenditure by Landlord for the account of Tenant, until the same have
been fully paid, at a rate ("Default Rate") equal to the lesser of (a) two
percent (2%) above the Prime Rate of interest published in the Wall Street
Journal, or (b) the highest rate permitted by law. The payment of such interest
shall not constitute a waiver of any default by Tenant hereunder.
4. Reservation of Rights
4.1 Landlord reserves the right, from time to time, to grant
such easements, rights and dedications as Landlord deems necessary or desirable,
and to cause the recordation of parcel maps and covenants, conditions and
restrictions affecting the Premises, provided they do not unreasonably interfere
with the use and enjoyment of the Premises by Tenant. At Landlord's
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request, Tenant shall join in the execution of any such documents. The Premises
may be known by any name that Landlord may choose, which name may be changed
from time to time in Landlord's sole discretion.
4.2 Tenant hereby acknowledges that Landlord shall have no
obligation whatsoever to provide guard services or other security measures for
the benefit of the Premises or the Warehouse. Tenant assumes all responsibility
for the protection of Tenant, its employees, suppliers, shippers, customers and
invitees and the property of Tenant and of Tenant's employees, suppliers,
shippers, customers and invitees from acts of third parties. Nothing herein
contained shall prevent Landlord, at Landlord's sole option, from providing
security protection for the Premises or any part thereof, and in such event
Tenant shall comply with Landlord's security procedures.
5. Conduct of Business by Tenant
5.1 During the Term, Tenant shall use and occupy the Premises
solely for general business office and computer service activities and storage
related to such permitted use. Tenant shall not use the Premises for any other
use or uses without Landlord's prior written consent, which may be withheld in
Landlord's sole and absolute discretion.
5.2 Tenant shall not use or occupy, or permit the use or
occupancy of, the Premises or any part thereof for any use other than the use
specifically set forth in Section 5.1, or in any manner that, in Landlord's
judgment, would adversely affect or interfere with (a) any services required to
be furnished by Landlord to Tenant, or (b) the proper and economical rendition
of any such service.
5.3 Tenant will not cause any Hazardous Substance (as defined
in this Section 5.3) to be brought, kept or stored on or about the Premises that
violates any applicable law, rule, regulation or ordinance, and Tenant will not
engage in or permit any other person to engage in any activity, operation or
business upon the Premises that involves the use, generation, manufacture,
refining, transportation, treatment, storage, handling or disposal of any
Hazardous Substance that would or could result in Tenant, Landlord or the
Premises to be in violation of any law, statute, ordinance or regulation or rule
law pertaining to Hazardous Substances, health, industrial hygiene or the
environment. Tenant shall be liable for all clean-up of the Premises due to any
violation of this Section 5.3 by Tenant. "Hazardous Substance" shall include,
without limitation, those substances, materials and wastes that are or become
regulated under applicable local, state or federal law, or the United States
government, or which are classified as hazardous or toxic under federal, state
or local laws or regulations. Tenant shall indemnify, defend and hold harmless
Landlord of, from and against, any and all loss, cost, liability, claim, cause
of action, right of action, damage and expense, including, without limitation,
penalties, fines and counsel fees, arising from or related to Tenant's violation
of this Section 5.3, which indemnity shall survive the expiration or sooner
termination of this Lease.
6. Improvements to the Premises
6.1 Tenant shall have the right to perform (or cause to be
performed), at its sole cost and expense, the work outlined and generally
described in Exhibit B ("Tenant Improvement Work"). Landlord shall have the
right to approve the plans and specifications for the Tenant Improvement Work
which approval shall not be arbitrarily or unreasonably withheld. Tenant shall
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obtain all required permits and approvals, and provide Landlord with all copies
thereof prior to commencement of any Tenant Improvement Work. Landlord shall not
arbitrarily or unreasonably withhold or delay approval of any nonstructural,
interior alterations, revisions or supplements to the "Tenant Improvement Work"
provided that Tenant complies with the requirement of Section 7 in all respects.
7. Alterations and Tenant's Property
7.1 Tenant shall make no alterations, installations, additions
or improvements whether structural or non-structural, including without
limitation Tenant's Improvement Work (collectively "Alterations") in or to the
Premises without Landlord's prior written consent, which shall not be
unreasonably withheld or delayed. Tenant shall submit such information as
Landlord may require, including without limitation, (a) plans and specifications
for the Alterations, (b) permits, licenses and bonds and (c) evidence of
insurance coverage in such types and amounts and from such insurers as Landlord
deems satisfactory. All Alterations shall be done at Tenant's expense, in
compliance with all applicable laws, regulations and permits as more fully
described in Section 10.1 below, at such times and in such manner as will not
unnecessarily interfere with activities on the adjacent property, and only by
such contractors or mechanics as are approved in advance by Landlord, which
approval will not be unreasonably withheld. In no event shall any Alterations
affect the structure of the Premises or its exterior appearance, except as
approved in writing by Landlord.
7.2 All appurtenances, fixtures, improvements, additions and
other property attached to or installed in the Premises, whether by Landlord or
by or on behalf of Tenant, and whether at Landlord's expense or Tenant's
expense, or at the joint expense of Landlord and Tenant, shall be and remain the
property of Landlord. Any furnishings and personal property installed in the
Premises that are removable without material damage to the Premises, whether the
property of Tenant or leased by Tenant, are herein sometimes called "Tenant's
Property." Any replacements of any property of Landlord, whether made at
Tenant's expense or otherwise, shall be and remain the property of Landlord.
Tenant shall not install any machines or equipment that would compromise the
structural integrity of the Premises without Landlord's prior written consent,
which consent may be conditioned upon such terms as Landlord may require.
7.3 Any of Tenant's Property remaining on the Premises at the
expiration or sooner termination of the Term shall be removed by Tenant at
Tenant's cost and expense, and Tenant shall, at its cost and expense, repair any
damage to the Premises caused by such removal. Any of Tenant's Property not
removed from the Premises prior to the expiration or sooner termination of the
Term shall, at Landlord's option, become the property of Landlord, or Landlord
may remove such Tenant's Property, and Tenant shall pay to Landlord Landlord's
cost of removal with ten (10) days after delivery of a ▇▇▇▇ therefor.
7.4 Landlord shall have the right at all times to post and
keep posted on the premises any notices permitted or required by law, or that
Landlord shall deem proper, for the protection of Landlord, the Premises, and
any other party having an interest therein, from construction liens, and Tenant
shall give to Landlord at least ten (10) business days' prior notice of
commencement of any construction on the Premises, including in connection with
any Alteration or otherwise.
8. Repairs
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8.1 Tenant, at Tenant's cost and expense, shall make all
repairs and replacements as and when Landlord deems necessary to preserve in
good working order and condition the Premises and every part thereof except for
the parts of the Premises Landlord must repair under Section 8.3 below. Without
limiting the foregoing and to the extent that the following are exclusive to
Tenant and are not shared with Landlord, any other tenant or any third party,
Tenant shall be responsible for windows, doors, interior walls, and plumbing,
electrical, sprinkler, security, lighting (including light bulb replacement),
heating, ventilating and air conditioning systems. If any of the foregoing are
shared with Landlord, or any other tenant or third party, Tenant shall only be
responsible for its proportionate share of such cost and expense unless such
cost and expense is a) attributable to Tenant's negligent or intentional act, in
which case Tenant shall be solely liable, or b) attributable to the negligent or
intentional act of Landlord, other tenants or third parties (excluding agents,
customers, employees, principals, consultants, assigns, subtenants or invitees
of Tenant), in which case Tenant shall not be liable for any such cost or
expense.
8.2 All repairs and replacements made by or on behalf of
Tenant or any person claiming through or under Tenant shall be made and
performed (a) at Tenant's cost and expense and at such time and in such manner
as Landlord may designate, (b) by contractors or mechanics approved by Landlord,
(c) so that same shall be at least equal in quality, value and utility to the
original work or installation, and in accordance with all applicable laws and
regulations of governmental authorities having jurisdiction over the Premises.
Landlord shall endeavor to respond to any request for approval complying with
the foregoing requirements within five (5) business days after receipt of the
same.
8.3 Landlord, at Landlord's cost and expense, shall make all
repairs and replacements as and when Landlord reasonably deems necessary to the
foundation, exterior walls, structural members and roof (except to the extent
that repairs to the roof may be attributable to Tenant Improvement Work or
Alterations) of the Premises, as well as the parking lots, walkways, driveways,
landscaping, fences and signs.
8.4 Landlord, at its sole cost and expense, shall be
responsible for all customary and normal landscaping services for the Premises.
9. Liens
9.1 All work performed by Tenant on the Premises prior to the
Commencement Date and during the Term shall be performed without cost, expense
or liability of any nature to Landlord or the Warehouse, and all costs and
expenses incurred in connection therewith shall be paid for entirely by Tenant.
Tenant shall and does hereby indemnify and hold harmless Landlord and the
Warehouse from and against any lien or claim of lien against the fee title to
the Warehouse arising out of any work performed by or for Tenant or any party
holding under Tenant, or otherwise arising out of the exercise of Tenant's
rights under this Lease. Without limiting the generality of the foregoing,
neither the Tenant nor anyone claiming by, through or under Tenant, including
without limitation contractors, subcontractors, materialmen, mechanics and
laborers, shall have any right to file or place any construction lien of any
sort whatsoever upon the interest of Landlord in the Warehouse, and, on the
contrary, any such lien is hereby specifically prohibited. All parties with whom
the Tenant may deal are hereby put on notice that the Tenant has no power to
subject the interest of the Landlord in the Warehouse to any claim or lien of
any kind or character, and all such persons so dealing with Tenant must look
solely to the Tenant for payment, and not to the
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Landlord's interest in the Warehouse or any other asset of Landlord. The
foregoing prohibition shall be incorporated in a short form lease between the
parties hereto which shall be executed contemporaneously herewith and may be
recorded at the option of Landlord or Tenant. Tenant shall forthwith cause any
lien filed against the Warehouse to be immediately canceled, released and
extinguished, and Tenant shall and does hereby indemnify Landlord against any
such lien and shall and does hereby agree to pay any and all costs, charges and
expenses, including reasonable attorneys' fees, incurred in connection with the
prosecution or defense of any suit in connection therewith. If Tenant shall not,
within ten (10) days following the imposition of any such lien, cause same to be
released of record by payment or posting of a proper bond, Landlord shall have,
in addition to all other remedies provided herein and by law, the right but not
the obligation to cause such lien to be released by such means as it shall deem
proper, including without limitation payment of the claim giving rise to such
lien. All such sums paid by Landlord and all expenses incurred by it in
connection therewith shall be payable to it by Tenant with interest at the
Default Rate from the date of payment and shall be due and payable to Landlord
by Tenant on demand.
10. Compliance with Laws and Insurance Requirements
10.1 In addition and not in derogation of Tenant's obligations
under Section 5.3 above, Tenant, at Tenant's cost and expense, shall comply with
all laws, codes, orders and regulations of federal, state, county and municipal
authorities, and with all directions, pursuant to law, of all public officers,
that shall impose any duty upon Landlord or Tenant with respect to the Premises
or the particular use or occupancy thereof by Tenant. Any Alteration or other
work or installation made or performed by or on behalf of Tenant or any person
claiming through or under Tenant pursuant to the provisions of this Article 10
shall be made in conformity with, and subject to the provisions of Section 7.1.
In the event and to the extent that any such requisite compliance does not arise
from or result from any particular use of the Premises by Tenant, AND the said
alteration or other work or installation ("Work") necessary to achieve and
satisfy such requisite compliance has a projected useful life greater than the
then remaining Term of the Lease (not including the renewal option), ("Remaining
Term"), THEN the Tenant shall be obligated to pay only a portion of the cost of
the Work, which portion shall be that fraction of which the numerator is the
number of months in the Remaining Term and the denominator is the projected
useful life of the Work, in months.
10.2 Tenant shall not do anything, or permit anything to be
done, in or about the Premises that shall: (a) invalidate or be in conflict with
the provisions of any fire or other insurance policies covering the Premises or
any property located therein, (b) result in a refusal by fire insurance
companies of good standing to insure the Premises or any such property in
amounts reasonably satisfactory to Landlord, (c) subject Landlord to any
liability or responsibility for injury to any person or property by reason of
any business operation being conducted in or about the Premises, or (d) be in
violation of any certificate of occupancy for the Warehouse. Tenant, at Tenant's
sole expense, shall comply with all rules, orders, regulations and requirements
of its insurance policy. If Tenant's particular or peculiar use of the Premises
causes any increase in the fire insurance rates applicable to the Premises or
property located therein on the Commencement Date or at any time thereafter,
Tenant shall be responsible for such increase and shall pay the same to Landlord
upon request.
11. Subordination
11.1 Without the necessity of any additional document being
executed by Tenant
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for the purpose of effecting a subordination, Tenant agrees that this Lease
shall be subject and subordinate at all times to (a) all ground leases or
underlying leases that may now exist or hereafter be executed affecting the
Premises, and (b) the lien of any mortgage or deed of trust that may now exist
or hereafter be executed in any amount for which the Premises, any ground leases
or underlying leases, or Landlord's interest or estate in any of such items is
specified as security. Notwithstanding the foregoing, Landlord shall have the
right to subordinate or cause to be subordinated to this Lease any such ground
leases or underlying leases or any such liens. If any ground lease or underlying
lease terminates for any reason or any mortgage or deed of trust is foreclosed
or a conveyance in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination to this Lease of any ground lease, underlying
lease or lien, attorn to and become the Tenant of the successor in interest to
Landlord at the option of such successor in interest. Tenant covenants and
agrees to execute and deliver, upon demand by Landlord and in the form requested
by Landlord and not reasonably objected to by legal counsel for Tenant, any
additional documents evidencing the subordination of this Lease with respect to
any such ground leases or underlying leases or the lien of any such mortgage or
deed of trust. Notwithstanding the foregoing, any subordination of this Lease
shall be conditioned upon Tenant's being furnished a nondisturbance agreement in
connection therewith, in form and content reasonably satisfactory to legal
counsel for Tenant.
12. Right to Cure
12.1 Landlord shall not be deemed to be in default in the
performance of any obligation required to be performed by it hereunder unless
and until it has failed to perform such obligation within thirty (30) calendar
days after written notice by Tenant to Landlord specifying the nature of
Landlord's failure to perform such obligation; provided, however, that if the
nature of Landlord's obligation is such that more than thirty (30) days are
required for its performance, then Landlord shall not be deemed to be in default
if it shall commence such performance within such thirty (30) day period and
thereafter shall diligently prosecute the same to completion. All rights to cure
provided to Landlord under this Section 12.1 shall also be accorded to any
mortgagee or beneficiary under a deed of trust encumbering the Premises. Except
to the extent resulting from the act or neglect of Landlord, Landlord shall not
be liable for any injury or damage to persons or property resulting from loss,
theft, fire, explosion, falling plaster, cessation or variation or shortage or
interruption of services or utilities, steam, gas, electricity, earthquake, acts
of god, rain or water or dampness from any source or any other cause whatsoever.
Without limiting the generality of the foregoing, in no event shall Landlord be
liable for damages by reason of lost profits, business interruption or other
consequential damages.
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13. Destruction
13.1 If the Premises shall be damaged by fire (or by other
casualty insured against by Landlord's fire and extended coverage insurance
policy covering the Premises), and if Tenant shall give prompt notice to
Landlord of such damage, Landlord, at Landlord's expense, shall repair such
damage and restore the Premises to substantially the condition it was in prior
to such fire or casualty; provided, however, that Landlord shall have no
obligation to repair any damage to or to replace Tenant's Property, Alterations
or any other property or effects of Tenant. Except as otherwise provided in this
Article 13, if the entire Premises shall be rendered untenantable by reason of
any such damage, Monthly Rent shall ▇▇▇▇▇ for the period from the date of such
damage to the date when such damage to the Premises shall have been repaired. If
only a part of the Premises shall be rendered untenantable, Monthly Rent shall
▇▇▇▇▇ for such period in the proportion that the area of the part of the
premises so rendered untenantable bears to the total area of the Premises;
provided however, that if the part of the Premises which had not been rendered
untenantable is considered by Tenant to be inadequate or insufficient for
efficient use by Tenant, and the area rendered untenantable cannot reasonably be
restored by Landlord within ninety (90) days after the occurrence of such fire
or casualty to substantially the same condition it was in prior to such fire or
casualty then Tenant may terminate this Lease immediately upon written notice to
Landlord. Notwithstanding the foregoing, if, prior to the date when all of such
damage shall have been repaired, any part of the Premises so damaged shall be
rendered tenantable and shall be used or occupied by Tenant or any person or
persons claiming through or under Tenant, then the amount by which Monthly Rent
shall ▇▇▇▇▇ shall be equitably apportioned for the period from the date of any
such use or occupancy to the date when all such damage shall have been repaired.
13.2 Notwithstanding the provisions of Section 13.2, if during
the Term, the Premises (whether or not the Premises shall have been damaged or
rendered untenantable) shall be so damaged by fire or other casualty that, in
Landlord's opinion, it is impractical to restore the Premises, then, in any of
such events, Landlord, at Landlord's option, may give to Tenant, within sixty
(60) days after such fire or other casualty, thirty (30) days' notice of
termination of this Lease and, in the event such notice is given, this Lease and
the Term shall terminate effective upon the date of the occurrence of such
casualty with the same effect as if such date were the Expiration Date; and
Monthly Rent shall be apportioned as of such date and any prepaid portion of
Monthly Rent for any period after such date shall be refunded by Landlord to
Tenant, provided Tenant is not otherwise in default hereunder.
13.3 Notwithstanding anything contained in this Article 13 to
the contrary, in no event shall Landlord be required to spend for any repair,
replacement or reconstruction of the Premises an amount greater than the
insurance proceeds actually received by Landlord as a result of the fire or
other casualty causing such loss, damage or destruction, plus the amount of any
deductible.
13.4 Nothing contained in this Lease shall relieve Tenant of
any liability to Landlord or to its insurance carriers that Tenant may have
under law or under the provisions of this Lease in connection with any damage to
the Premises or the Warehouse by fire or other casualty.
13.5 Notwithstanding the provisions of Section 13.1, if any
such damage is due to the fault or neglect of Tenant, any person claiming
through or under Tenant, or any of their employees, suppliers, shippers,
customers or invitees, then there shall be no abatement of Monthly Rent by
reason of such damage.
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14. Eminent Domain
14.1 If all or substantially all of the Premises or the
Warehouse is damaged, condemned or taken in any manner for public or
quasi-public use, including but not limited to a transfer, conveyance or
assignment made in anticipation of or in lieu thereof, either temporarily or
permanently (a "Taking"), this Lease shall automatically terminate as of the
earlier of the date of the vesting of title or the date of dispossession of
Tenant as a result of such Taking (the "Taking Date"). If less than all or
substantially all of the Premises is so condemned or taken, this Lease shall
automatically terminate only as to the portion of the Premises so taken as of
the Taking Date provided, however, if a Taking would require, in the opinion of
Landlord, a substantial alteration or reconstruction of the remaining portions
of the Premises or the Warehouse, this Lease may be terminated by Landlord, as
of the Taking Date, by written notice to Tenant within sixty (60) days following
notice to Landlord of the Taking Date; provided further that if the portion of
the Premises remaining after said taking is, in the reasonable opinion of
Tenant, insufficient or inadequate for continued use by Tenant, Tenant may
terminate this Lease on notice to the Landlord.
14.2 Landlord shall be entitled to the entire award in the
Taking, including, without limitation, any award made for the value of or
damages to the leasehold estate created by this Lease. No award for any partial
or entire Taking shall be apportioned, and Tenant hereby assigns to Landlord
any award that may be made in connection with any such Taking, whether for the
value of the property taken or for damages, together with any and all rights
of Tenant now or hereafter arising in or to same or any part thereof; provided,
however, that nothing contained herein shall be deemed to give Landlord any
interest in, or to require Tenant to assign to Landlord, any award made to
Tenant specifically for its relocation expenses, the taking of personal
property and fixtures belonging to Tenant, or the interruption of or damage to
Tenant's business if such award is made separately to Tenant and not as part
of the damages recoverable by Landlord. Tenant shall fully cooperate with and
assist Landlord in establishing and pursuing any claims Landlord may have
relating to any Taking, and without limiting the foregoing, (i) Tenant shall
upon Landlord's request file a "Disclaimer of Interest" in any litigation
pertaining to a Taking, (ii) Tenant shall not assert any defenses or file any
motions, including but not limited to, motions to dismiss, or counterclaims,
in any such litigation, and (iii) Tenant shall be bound by any negotiations
for the settlement, pre-suit or otherwise, of any litigation, which
negotiations shall be conducted by Landlord on behalf of both Landlord and
Tenant, and shall be binding on Tenant.
14.3 In the event of a partial Taking that does not result in
a termination of this Lease as to the entire Premises pursuant to Section 14.1,
the Monthly Rent shall ▇▇▇▇▇ in proportion to the portion of the Premises taken
by such condemnation or other taking.
14.4 If all or any portion of the Premises is taken for a
limited period of time, this Lease shall remain in full force and effect and
Tenant shall continue to perform all terms, conditions and covenants of this
Lease; provided, however, the Monthly Rent shall ▇▇▇▇▇ during such limited
period in proportion to the portion of the Premises that is rendered
untenantable and unusable as a result of such Taking. Landlord shall be entitled
to receive the entire award made in connection with any such temporary Taking,
whether for the value of the property taken or for damages. Provided however
that all costs incurred by Tenant in obtaining, relocating to, additional
charges, vacating, and moving back to the Premises during such limited period of
time, are to be paid by Landlord.
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14.5 Landlord may, without any obligation to Tenant, agree to
sell and/or convey to a condemnor the Premises, or any portion thereof sought by
the condemnor, free from this Lease and the rights of Tenant hereunder, without
first requiring that any action or proceeding be instituted or, if instituted,
pursued to a judgment.
15. Assignment and Subletting
15.1 Tenant shall not directly or indirectly, voluntarily or
by operation of law, sell, assign, encumber, pledge or otherwise transfer or
hypothecate all or any part of the Premises or Tenant's leasehold estate
hereunder (collectively, "Assignment"), or permit the Premises to be occupied by
anyone other than Tenant or sublet the Premises or any portion thereof
(collectively, "Sublease") without Landlord's prior written consent in each
instance, which consent shall not be unreasonably withheld; provided however,
that any such transaction between Tenant and any entity controlling, controlled
by, or under common control with Tenant shall not constitute such prohibited
assignment or sublease.
15.2 If Tenant desires at any time to enter into an Assignment
of this Lease or a Sublease of the Premises or any portion thereof, it shall
first give written notice to Landlord of its desire to do so, which notice shall
contain (a) the name of the proposed assignee, subtenant or occupant, (b) the
nature of the proposed assignee's, subtenant's or occupant's business to be
carried on in the Premises, (c) the terms and provisions of the proposed
Assignment or Sublease, and (d) such financial information as Landlord may
reasonably request concerning the proposed assignee, subtenant or occupant.
Tenant shall reimburse Landlord for Landlord's reasonable counsel fees incurred
in connection with the processing and documentation of any requested Assignment
of this Lease or Sublease of the Premises.
15.3 No consent by Landlord to any Assignment or Sublease by
Tenant shall relieve Tenant of any obligation to be performed by Tenant under
this Lease, whether arising before or after the Assignment or Sublease. The
consent by Landlord to any Assignment or Sublease shall not relieve Tenant of
the obligation to obtain Landlord's express written consent to any other
Assignment or Sublease. Any Assignment or Sublease that is not in compliance
with this Article 15 shall be void and, at the option of Landlord, shall
constitute a material default by Tenant under this Lease. The acceptance of
Monthly Rent by Landlord from a proposed assignee or sublessee shall not
constitute the consent by Landlord to such Assignment or Sublease.
15.4 Any sale or other transfer, including transfer by
consolidation, merger or reorganization, of a majority of the voting stock of
Tenant, if Tenant is a corporation, or any sale or other transfer of a majority
of the partnership interests in Tenant, if Tenant is a partnership, shall be an
Assignment for purposes of this Article 15. As used in this Section 15.4, the
term "Tenant" shall also mean any entity that has guaranteed Tenant's
obligations under this Lease, and the prohibition hereof shall be applicable to
any sales or transfers of the stock or partnership interests of said guarantor.
15.5 Each assignee, sublessee, or other transferee, shall
assume, as provided in this Section 15.5, all obligations of Tenant under this
Lease and shall be and remain liable jointly and severally with Tenant for the
payment of Monthly Rent, and for the performance of all the terms, covenants,
conditions and agreements herein contained on Tenant's part to be performed for
the Term; provided, however, that the assignee, sublessee, or other transferee
shall be liable to Landlord for rent only in the amount set forth in the
Assignment or Sublease. No Assignment shall
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be binding on Landlord unless the assignee or Tenant shall deliver to Landlord a
counterpart of the Assignment and an instrument that contains a covenant of
assumption by the assignee satisfactory in substance and form to Landlord,
consistent with the requirements of this Section 15.5, but the failure or
refusal of the assignee to execute such instrument of assumption shall not
release or discharge the assignee from its liability as set forth above.
16. Utilities
16.1 Tenant shall pay for all electricity (to be separately
metered at Landlord's cost), telephone and trash removal and janitorial services
supplied to the Premises. All such utilities shall be separately metered and
Tenant shall make such payments when due directly to the utility company
providing such service. Tenant shall have all utility bills for services
provided under this Section 16.1 transferred to its name prior to taking
occupancy of the Premises. Landlord shall be responsible for water and sanitary
sewer charges related to the Premises.
16.2 If any governmental entity promulgates or revises any
statute, ordinance or building, fire or other code or imposes mandatory or
voluntary controls or guidelines on Landlord or the Premises or any part
thereof, relating to the use or conservation of energy, water, gas, light or
electricity or the reduction of automobile or other emissions or the provision
of any other utility or service provided with respect to this Lease, or in the
event Landlord is required to make alterations to the Premises or any other part
of the Premises in order to comply with such mandatory or voluntary controls or
guidelines, Landlord may, in its sole discretion, require Tenant to comply with
such mandatory or voluntary controls or guidelines or Landlord may, in its sole
discretion, make such alterations to the Premises. The portion of the costs
incurred by Landlord in connection with such laws, ordinances, guidelines or
controls that is attributable to the Premises, shall be amortized over the
useful life of such alterations, and Tenant shall pay such amortization during
the Term as additional rent hereunder. Such compliance and the making of such
alterations shall in no event entitle Tenant to any damages, relieve Tenant of
the obligation to pay the full Monthly Rent reserved hereunder or constitute or
be construed as a constructive or other eviction of Tenant.
17. Default
17.1 The failure of Tenant to perform or observe any term,
covenant, condition or representation made under this Lease shall constitute a
default hereunder by Tenant upon the expiration of the appropriate grace period
hereinafter provided. Tenant shall have a period of five (5) business days after
notice of nonpayment to cure any default in the payment of Monthly Rent,
provided that after Landlord has given two (2) such notices to Tenant in any
twelve (12) month period, Tenant shall only have a period of ten (10) days after
the due date to cure any such failure, without any requirement of notice from
Landlord to Tenant of such failure; provided, however, that the obligation of
Tenant to pay a late charge pursuant to Section 3.2 or interest pursuant to
Section 3.3 shall commence as of the date ten (10) days after the due date of
the Monthly Rent. Tenant shall have a period of thirty (30) days from the date
of written notice from Landlord within which to cure any other default under
this Lease; provided, however, that with respect to any default other than the
payment of Monthly Rent that cannot reasonably be cured within thirty (30) days,
the default shall not be deemed to be uncured if Tenant promptly commences to
cure within thirty (30) days from Landlord's notice and continues to prosecute
diligently the curing thereof to completion within a reasonable time.
17.2 Upon the occurrence of a default by Tenant that is not
cured by Tenant
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within the grace periods specified in Section 17.1 hereof, Landlord shall have
the following rights and remedies in addition to all other rights and remedies
available to Landlord at law or in equity:
(a) The right to accelerate all Monthly Rent due
under the Lease for the remainder of the Term and to recover from Tenant the
following:
(i) all unpaid Monthly Rent which had been
earned at the time of such acceleration;
(ii) the unpaid Monthly Rent which would
have been earned after such acceleration until the time of
entry of judgment;
(iii) the worth at the time of award of the
amount of Monthly Rent for the balance of the Term. The "worth
at the time of award" of the amounts referred to in this
Section 17.2(a) shall be computed by discounting such amount
at the discount rate of the Federal Reserve Bank of Atlanta at
the time of award plus one percent (1%); and
(iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused
by Tenant's failure to perform its obligations under this
Lease or which in the ordinary course of things would be
likely to result therefrom.
(b) The right to continue this Lease in effect
and to enforce all of its rights and remedies under this Lease, including the
right to recover Monthly Rent as it becomes due, for as long as Landlord does
not terminate Tenant's right to possession. Acts of maintenance or preservation,
efforts to relet the Premises or the appointment of a receiver upon Landlord's
initiative to protect its interest under the Lease shall not constitute a
termination of Tenant's right to possession.
(c) The right to terminate this lease by giving
notice to Tenant in accordance with applicable law without waiving any right to
damages for breach of this Lease.
(d) The right and power to re-rent and lease
("New Lease") the Premises or any part thereof for such term or terms (which may
extend beyond the Term) and at such rent and such other terms as Landlord can
reasonably obtain, with the right to make alterations in and repairs to the
Premises. Upon each such subletting, Tenant shall be immediately liable for
payment to Landlord of any monthly deficiency between the monthly rental payable
hereunder and the rent to be received by Landlord pursuant to the New Lease, in
addition to the cost of such re-letting and such alterations and repairs
incurred by Landlord. No taking possession of the Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease unless a
written notice of such intention is given to Tenant. Notwithstanding any such
re- letting, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach.
18. Insolvency or Bankruptcy
18.1 The appointment of a receiver to take possession of all
or substantially all of the assets of Tenant, which if involuntary is not
dismissed within thirty (30) days after the commencement thereof, or an
assignment by Tenant for the benefit of creditors, or any action
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voluntarily taken by or instituted against Tenant under any insolvency,
bankruptcy, reorganization, moratorium or other debtor relief act or statute,
whether now existing or hereafter amended or enacted, or if Tenant shall admit
in writing its inability to pay its debts or shall generally not be paying its
debts as they mature, shall at Landlord's option constitute a breach of this
Lease by Tenant. Upon the happening of any such event or at any time thereafter,
this Lease shall terminate five (5) days after written notice of termination
from Landlord to Tenant. In no event shall this Lease be assigned or assignable
by operation of law or by voluntary or involuntary bankruptcy proceedings or
otherwise, and in no event shall this Lease or any rights or privileges
hereunder be an asset of Tenant under any bankruptcy, insolvency, reorganization
or other debtor relief proceedings.
19. Fees and Expenses; Indemnity
19.1 If Tenant shall default in the performance of its
obligations under this Lease, Landlord, at any time thereafter and without
notice, may remedy such default for Tenant's account and at Tenant's expense,
without thereby waiving any other right or remedies of Landlord with respect to
such default.
19.2 Tenant shall indemnify, defend and hold harmless Landlord
and Landlord's agents of, from and against any and all Claims incurred in
connection with or arising from any cause whatsoever in, on or about the
Premises and Tenant Parking, including, without limiting the generality of the
foregoing, (a) any default by Tenant in the observance or performance of any of
the terms, covenants or conditions of this Lease on Tenant's part to be observed
or performed, (b) the use or occupancy or manner of use or occupancy of the
Premises by Tenant or any person claiming through or under Tenant, (c) the
condition of any portion of the Premises that is the responsibility of Tenant or
any occurrence or happening on the Premises from any cause whatsoever, or (d)
any act, omission or negligence of Tenant or any person claiming through or
under Tenant, or of the employees, suppliers, shoppers, customers or invitees of
Tenant or any such person, in, on or about the Premises or the Warehouse,
whether prior to, during, or after the expiration of, the Term including,
without limitation, any act, omission or negligence in the making or performing
of any Alterations, all of the foregoing except to the extent caused by the act
or negligence of Landlord or any third party (excluding agents, customers,
employees, principals, consultants, assigns, subtenants or invitees of Tenant);
and Landlord shall otherwise indemnify, defend and hold harmless Tenant from all
such claims.
19.3 Landlord shall not be responsible for or liable to Tenant
for any loss or damage that may be occasioned by or through the acts or
omissions of persons occupying adjoining premises (other than Landlord) or any
part of the premises adjacent to or connected with the Premises or any other
part of the Premises or for any loss or damage resulting to Tenant or its
property from burst, stopped or leaking water, gas, sewer or steam pipes or for
any damage to or loss of property within the Premises from any causes
whatsoever, including theft, all of the foregoing except to the extent caused by
the act or negligence of Landlord.
19.4 Except where a longer or shorter period is specifically
provided for in this Lease for a particular expenditure, Tenant shall pay to
Landlord, within ten (10) days after delivery by Landlord to Tenant of bills or
statements therefor: (a) sums equal to all expenditures made and monetary
obligations incurred by Landlord including, without limitation, expenditures
made and obligations incurred for reasonable counsel fees, in connection with
the remedying by Landlord for Tenant's account pursuant to the provisions of
Section 19.1; (b) sums equal to all Claims referred to
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in Section 19.2; and (c) sums equal to all expenditures made and monetary
obligations incurred by Landlord, including, without limitation, expenditures
made and obligations incurred for reasonable counsel fees, in collecting or
attempting to collect the Monthly Rent, or any other sum of money accruing under
this Lease or in enforcing or attempting to enforce any rights of Landlord under
this Lease or pursuant to law. Tenant's obligations under this Section 19.4
shall survive the expiration or sooner termination of the Term.
20. Access to Premises
20.1 Landlord reserves and shall have the right at all times
upon twenty-four (24) hours written notice and during regular business hours
(except in case of emergency) to enter the Premises to inspect same, to show the
Premises to prospective purchasers, mortgagees or tenants, and to alter, improve
or repair the Premises and any other portion of the Premises, without abatement
of Monthly Rent, and may for that purpose erect, use and maintain scaffolding,
pipes, conduits and other necessary structures in and through the Premises where
reasonably required by the character of the work to be performed, provided that
the entrance to the Premises shall not be blocked thereby, and further provided
that the business of Tenant and the use and enjoyment of the Premises by Tenant
shall not be interfered with unreasonably. Tenant otherwise hereby waives any
claim for damages for any injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned thereby unless caused by Landlord's intentional acts.
Tenant will provide Landlord with a contact person or persons who, on behalf of
Tenant, will be available on a twenty-four (24) hour, seven (7) day per week
basis, to unlock the Premises to allow Landlord access thereto within thirty
(30) minutes in the event of an emergency.
21. Notices
21.1 Except as otherwise expressly provided in this Lease,
any bills, statements, notices, demands, requests or other communications given
or required to be given under this Lease shall be effective only if rendered or
given in writing, sent simultaneously by facsimile transmission to the numbers
herein specified and by registered or certified mail return receipt requested,
by nationally recognized overnight courier or delivered personally, (a) to
Tenant at 11300 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
Facilities Manager, facsimile number 813/570-8507, or (b) to Landlord at ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn.: Chief
Financial Officer, facsimile number 813/222-0792 or (c) to such other address
as either Landlord or Tenant may designate as its new address for such purpose
by notice given to the other in accordance with the provisions of this Section
21.1. Any such ▇▇▇▇, statement, notice, demand, request or other communication
shall be deemed to have been rendered or given two (2) days after the date when
it shall have been mailed as provided in this Section 21.1 if sent by
registered or certified mail, or upon the date personal delivery or delivery by
nationally recognized overnight courier is made. If Tenant is notified of the
identity and address of Landlord's mortgagee or beneficiary under a deed of
trust, or ground or underlying lessor, Tenant shall give to such mortgagee,
beneficiary or ground or underlying lessor notice of any default by Landlord
under the terms of this Lease in writing sent by registered or certified mail
return receipt requested, and such mortgagee, beneficiary or ground or
underlying lessor shall be given a reasonable opportunity to cure such default
prior to Tenant's exercising any remedy available to it.
22. No Waiver; No Oral Modification
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22.1 No failure by Landlord to insist upon the strict
performance of any obligation of Tenant under this Lease or to exercise any
right, power or remedy consequent upon a breach thereof, no acceptance of full
or partial Monthly Rent during the continuance of any such breach, and no
acceptance of the keys to or possession of the Premises prior to the termination
of the Term by any employee of Landlord shall constitute a waiver of any such
breach or of such term, covenant or condition or operate as a surrender of this
Lease. No payment by Tenant or receipt by Landlord of a lesser amount than the
aggregate of all Monthly Rent then due under this Lease shall be deemed to be
other than on account of the first items of such Monthly Rent then accruing or
becoming due, unless Landlord elects otherwise; and no endorsement or statement
on any check, no letter accompanying any check or other payment of Monthly Rent
in any such lesser amount and no acceptance of any such check or other such
payment by Landlord shall constitute an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such Monthly Rent or to pursue any other legal remedy.
22.2 Neither this Lease nor any term or provision hereof may
be changed, waived, discharged or terminated orally, and no breach thereof shall
be waived, altered or modified, except by a written instrument signed by the
party against which the enforcement of the change, waiver, discharge or
termination is sought. No waiver of any breach shall affect or alter this Lease,
but each and every term, covenant and condition of this Lease shall continue in
full force and effect with respect to any other then existing or subsequent
breach thereof.
22.3 The review, approval, inspection or examination by
Landlord of any item to be reviewed, approved, inspected or examined by Landlord
under the terms of this Lease or the exhibits attached hereto shall not
constitute the assumption of any responsibility by Landlord for either the
accuracy or sufficiency of any such item or the equality or suitability of such
item for its intended use. Any such review, approval, inspection or examination
by Landlord is for the sole purpose of protecting Landlord's interests in the
Premises and under this Lease, and no third parties, including, without
limitation, Tenant or any person or entity claiming through or under Tenant, or
the contractors, agents, servants, employees, visitors or licensees of Tenant or
any such person or entity, shall have any rights hereunder.
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23. Tenant's Certificates
23.1 Tenant, at any time and from time to time upon not less
than ten (10) days' prior written notice from Landlord, will execute,
acknowledge and deliver to Landlord and, at Landlord's request, to any
prospective purchaser, ground or underlying lessor, beneficiary under a deed of
trust or mortgagee of any part of the Premises, a certificate of Tenant stating:
(a) that Tenant has accepted the Premises (or, if Tenant has not done so, that
Tenant has not accepted the Premises and specifying the reasons therefor), (b)
the Commencement and Expiration Dates of this Lease, (c) that this Lease is
unmodified and in full force and effect (or, if there have been modifications,
that the Lease, as modified is in full force and effect and stating the
modifications), (d) whether or not there are then existing any defenses against
the enforcement of any of the obligations of Tenant under this Lease (and, if
so, specifying the same), (e) whether or not there are then existing any
defaults by Landlord in the performance of its obligations under this Lease
(and, if so, specifying same), (f) the dates, if any, to which the Monthly Rent
and other charges under this Lease have been paid, and (g) any other information
that may reasonably be required by any of such persons. It is intended that any
such certificate of Tenant delivered pursuant to this Section 23.1 may be relied
upon by Landlord and any prospective purchaser, ground or underlying lessor,
beneficiary or mortgagee of any part of the Premises.
24. Tax on Tenant's Personal Property
24.1 At least ten (10) days prior to delinquency, Tenant shall
pay all taxes levied or assessed upon Tenant's equipment, furniture, fixtures
and other personal property located in or about the Premises. If the assessed
value of Landlord's property is increased by the inclusion therein of a value
placed upon Tenant's equipment, furniture, fixtures or other personal property,
Tenant shall pay to Landlord, upon written demand, the taxes so levied against
Landlord, or the proportion thereof resulting from said increase in assessment.
25. Authority
25.1 If Tenant signs as a corporation or a partnership, each
of the persons executing this Lease on behalf of Tenant does hereby covenant and
warrant that Tenant is a duly authorized and existing entity, that Tenant has
and is qualified to do business in Florida, that Tenant has full right and
authority to enter into this Lease, and that each and every person signing on
behalf of Tenant is authorized to do so. Upon Landlord's request, Tenant shall
provide Landlord with evidence satisfactory to Landlord confirming the foregoing
covenants and warranties.
26. Broker
26.1 Both parties represent and warrant to each other that no
broker was involved in the negotiations relating to this Lease. Landlord and
Tenant shall indemnify, defend and hold harmless each other of, from and
against, any and all claims, arising from or related to any breach of this
Section 26.1, which indemnity shall survive the expiration or sooner termination
of this Lease.
27. Liability of Landlord
27.1 The liability of Landlord hereunder or in connection with
the Warehouse or the Premises shall be limited to its interest in the Warehouse,
and in no event shall any other assets
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of Landlord be subject to any claim arising out of or in connection with the
Lease or the Premises.
28. Attorneys' Fees
28.1 If either Landlord or Tenant fails to perform any of its
obligations under this Lease or in the event a dispute arises concerning the
meaning or interpretation of any provision of this Lease, the basis of the
dispute shall be settled by judicial proceeding and the defaulting party or the
party not prevailing in such dispute, as the case may be, shall pay any and all
costs and expenses incurred by the other party in enforcing or establishing its
rights hereunder, including without limitation, court costs and attorneys' fees.
29. Surrender and Holding Over
29.1 Upon the expiration or sooner termination of the Term,
Tenant will quietly and peacefully surrender to Landlord the Premises in the
condition in which they are required to be kept as provided in Section 8.1,
ordinary wear and tear excepted.
29.2 Any holding over after the expiration of the Term with
the consent of Landlord shall be construed to be a tenancy from month to month
at double the Monthly Rent herein specified (prorated on a monthly basis),
unless Landlord shall specify a different rent in its sole discretion, and shall
otherwise be on the terms and conditions herein specified as far as applicable.
30. Quiet Enjoyment
30.1 Upon Tenant's paying the Monthly Rent and performing all
of Tenant's obligations under this Lease, Tenant may peacefully and quietly
enjoy the Premises during the Term as against all persons or entities lawfully
claiming by or through Landlord.
31. Insurance
31.1 Tenant shall carry at its expense and maintain in
force during the Term the following insurance:
(a) Commercial General Liability Insurance
(including protective liability coverage on operations of independent
contractors engaged in construction and also blanket contractual liability
insurance) on an "occurrence" basis for the benefit of Tenant and Landlord as
additional insured against claims for "bodily injury" liability including
without limitation bodily injury, death or property damage liability with a
limit of not less than Three Million Dollars ($3,000,000.00) in the event of
"bodily injury" to any number of persons or of damages to property arising out
of any one "occurrence;" such insurance may be furnished under a "primary"
policy and an "umbrella" policy, provided that it is primary insurance and not
excess over or contributory with any insurance in force for Landlord; and such
insurance shall provide for a waiver of the insurer's right of subrogation
against Landlord;
(b) Insurance against loss or damage by fire and
such other risks and hazards (excluding earthquake and flood) as are insurable
under present and future standard forms of fire and extended coverage insurance
policies, to the personal property, furniture, furnishings and fixtures
belonging to the Tenant located in the Premises for not less than one hundred
percent
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(100%) of the actual replacement value thereof. Such insurance shall provide for
a waiver of the insurer's right of subrogation against Landlord;
(c) Fire, extended coverage and vandalism and
malicious mischief insurance on Tenant's improvements and property within the
Premises in an amount not less than the full replacement value thereof without
Tenant being deemed a co-insurer under the terms of the applicable policy, and
against such additional periods and for such other amounts as may from time to
time be required by Landlord without deduction for physical depreciation
thereof. Such insurance on the Premises shall contain the "Replacement Cost
Endorsement;"
(d) Business interruption insurance against loss
of income by reason of any hazard covered under the insurance required under
subsections (c) and (d) of this Section for the benefit of Landlord as loss
payee, in an amount sufficient to avoid any co-insurance penalty, but in any
event for not less than one (1) year's Monthly Rent from the Premises.
31.2 All such insurance shall name Landlord as additional
insured, shall be effected under policies issued by insurers, shall be approved
by Landlord (such approval not to be unreasonably withheld) and shall provide
that Landlord shall receive thirty (30) days' written notice from the insurer
prior to any cancellation or change of coverage.
31.3 Tenant shall deliver copies of policies of such insurance
or certificates thereof to Landlord on or before the Commencement Date, and
thereafter at least thirty (30) days before the expiration dates of expiring
policies; and, in the event Tenant shall fail to procure such insurance, or to
deliver such policies or certificates, Landlord may, at its option and after
written notice to Tenant and a reasonable opportunity for Tenant to cure,
procure same for the account of Tenant, and the cost thereof shall be paid to
Landlord as Additional Rent within ten (10) days after delivery to Tenant of
bills therefor. Nothing contained in this Article 31 shall in any way limit the
extent of Tenant's liability under any of the other provisions of this Lease.
31.4 Landlord shall maintain hazard insurance on the Warehouse
in conformity with the requirement of any mortgage, deed of trust or ground
lease now or hereafter encumbering the Premises or, if no such mortgage, deed of
trust or ground lease exists, such insurance shall conform to the industry
standard for types and amounts of insurance coverage for similar type properties
in the St. Petersburg, Florida market. Landlord shall cause its hazard insurance
on the Warehouse to provide for a waiver of the insurer's right of subrogation
against Tenant.
32. Short Form of Lease
32.1 If requested by Landlord or Tenant, the other party shall
execute and acknowledge a memorandum of lease and the requesting party may
record such memorandum of lease in the county where the Premises are located. If
such memorandum is requested by Tenant, Tenant shall simultaneously execute, and
deliver into escrow with Landlord's attorney, a recordable termination of such
memorandum to be released to Landlord upon delivery to such attorney of
Landlord's sworn statement that the Lease has been terminated.
33. Waiver of Jury Trial
33.1 Landlord and Tenant hereby waive trial by jury in any
action or proceeding
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brought by either of the parties hereto against the other on any matters
arising out of or connected with this Lease, the relationship of Landlord and
Tenant and Tenant's use or occupancy of the Premises.
34. Right of First Refusal to Purchase
34.1 If Landlord, at any time during the Term of this Lease
shall receive any bona fide offer for the purchase of the 11200 Realty or the
Warehouse, which offer Landlord shall be ready and willing to accept, then
Tenant shall have the first right to purchase 11200 Realty or the Warehouse at
the same price, and upon the same terms and conditions as shall be contained in
such offer. Landlord shall inform Tenant in writing immediately upon the receipt
of any written offer which Landlord shall be ready and willing to accept and
shall also inform Tenant immediately upon Landlord's execution of any listing
agreement for the sale of 11200 Realty or the Warehouse. Landlord shall deliver
to Tenant a copy of such offer and Tenant shall have five (5) business days,
from and after the receipt of the copy of such offer from Landlord, in which to
elect to purchase 11200 Realty or the Warehouse at the same price and on the
same terms and conditions as contained in such offer, by giving Landlord written
notice thereof, and such notice by Tenant shall create a binding purchase
agreement between the parties hereto upon the same price, terms and conditions
of the offer.
If Tenant shall elect not to purchase the 11200 Realty or the
Warehouse or shall fail to give Landlord notice within the time provided for
herein, then Landlord may sell 11200 Realty or the Warehouse but only at the
same price, terms and conditions specified in the copy of the offer Landlord
submitted to Tenant. If 11200 Realty or the Warehouse is not sold by Landlord on
the terms set forth in the offer delivered to Tenant, Landlord shall submit all
subsequent offers to Tenant, in the manner provided herein, prior to making any
subsequent sale of 11200 Realty or the Warehouse. This Right of First Refusal
shall terminate upon the sale of 11200 Realty or the Warehouse by Interior
Design Services, Inc. to any third party.
35. Miscellaneous
35.1 Use of Terms
The words "Landlord" and "Tenant" as used herein all
include the plural as well as the singular. Words used in the neuter gender
include the masculine and feminine. If there is more than one Tenant, the
obligations under this Lease imposed on Tenant shall be joint and several. The
captions preceding the articles of this Lease have been inserted solely as a
matter of convenience, and such captions in no way define or limit the scope or
intent of any provision of this Lease.
35.2 Binding Effect
The terms, covenants and conditions contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and, except as
otherwise provided herein, their respective personal representatives and
successors and assigns; provided, however, upon the sale, assignment or transfer
by Landlord (or by any subsequent landlord) of its interest in the Warehouse,
including any transfer by operation of law, Landlord (or subsequent landlord)
shall be relieved of all obligations or liabilities under this Lease, and all
obligations or liabilities shall be binding upon the grantee, assignee or other
transferee of such interest, and any such grantee, assignee or
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transferee, by ccepting such interest, shall be deemed to have assumed such
obligations and liabilities. Tenant shall promptly execute all instruments
requested by Landlord or its successor acknowledging such sale, transfer or
assignment.
35.3 Severability
If any provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, and in Landlord's opinion such invalid or unenforceable provision
does not affect a material benefit or right hereunder, the remainder of this
Lease, or the application of such provision to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each provision of this Lease shall be valid and be enforced to the
full extent permitted by law.
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35.4 Florida Law
This Lease shall be construed and enforced in
accordance with the laws of the State of Florida.
35.5 Execution by Landlord
Submission of this instrument for examination or
signature by Tenant in the absence of signature by Landlord does not constitute
a reservation of or an option for lease, and it is not effective as a lease or
otherwise until execution and delivery by both Landlord and Tenant.
35.6 Merger
This instrument, including the exhibits hereto, which
are made a part of this Lease, contains the entire agreement between the
parties, and all prior negotiations and agreements are merged herein. Neither
Landlord nor Landlord's agents have made any representations or warranties with
respect to the Premises, the Warehouse, or this Lease except as expressly set
forth herein, and no rights, easements or licenses are or shall be acquired by
Tenant by implication or otherwise unless expressly set forth herein.
35.7 No Signs
Except that Tenant may use exterior signage similar
to that which it uses at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ to indicate its presence in the
Premises, Tenant shall not place any sign upon the Premises without Landlord's
prior written consent, which consent shall not be unreasonably withheld. Under
no circumstances shall Tenant place a sign on any roof of the Premises.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed by their duly authorized officers as of the date first written above.
WITNESSES: INTERIOR DESIGN SERVICES, INC., a Florida
corporation
----------------------------------- By:
---------------------------------
----------------------------------- Its:
--------------------------------
CATALINA MARKETING CORPORATION, a
Delaware corporation
----------------------------------- By:
---------------------------------
----------------------------------- Its:
--------------------------------
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STATE OF FLORIDA
COUNTY OF _________________________
The foregoing instrument was acknowledged before me this ______ day of
_______________, 1996 by _________________________, as _________________________
of INTERIOR DESIGN SERVICES, INC., a Florida corporation, on behalf of the
corporation. He/she is personally known to me or has produced
___________________________________________ as identification and did/did not
take an oath.
-----------------------------
-----------------------------
(Name typed/printed)
STATE OF _________________________
COUNTY OF ________________________
The foregoing instrument was acknowledged before me this _____ day of
_________________________, 1996 by _________________________, as _______________
of CATALINA MARKETING CORPORATION, a Delaware corporation, on behalf of the
corporation. He/she is personally known to me or has produced
___________________________________________ as identification and did/did not
take an oath.
-----------------------------
-----------------------------
(Name typed/printed)
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