Florida-Miami-2335 NW 107th Avenue Lease - Miami Free Zone Corp. and Take to Auction.com Inc.
COMMERCIAL LEASE AGREEMENT
LESSOR
MIAMI FREE ZONE CORPORATION
2305 N.W. 107TH Avenue
Miami, Florida 33172
Tel: (305) 591-4300
Fax: (305) 591-1808
LESSEE
TAKE TO AUCTION.COM, INC.
Mr. Albert Friedman
President & Chief Executive Office
2335 N.W. 107th Avenue, Box 40
Miami, Florida 33172
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LEASE AGREEMENT
THIS AGREEMENT OF LEASE is made and executed as of this 4th day of
August 1999, by and between MIAMI FREE ZONE CORPORATION, with its principal
office at 2305 N.W. 107th Avenue, Miami, Florida 33172 (the Lessor) and Take to
Auction.Com, Inc., with its principal office at 2335 N.W. 107 Avenue, Miami,
Florida 33172, (the Lessee).
WITNESSETH
WHEREAS, Lessor is the licensee under a grant from the United States
Department of Commerce to the Greater Miami Foreign-Trade Zone, Inc., of the
privilege of establishing, operating and maintaining a foreign-trade zone upon
certain real property situated in Dade County, Florida, the legal description of
which is provided in Exhibit "A" attached hereto and incorporated herein by
reference.
NOW THEREFORE, the Lessor and Lessee agree as follows:
ARTICLE I - PREMISES
A. In consideration of the payment of rents and other charges provided
for herein and the performance of the covenants hereinafter set forth, the
Lessor hereby leases to the Lessee, and Lease hereby rents from Lessor, those
certain premises (the "Premises") described in Exhibit "A," attached hereto and
made a part hereof, and containing approximately 2,138 square foot of Floor Area
as illustrated in Exhibit "A", attached hereto and made a part hereof and
identified as pertaining to this Lease Agreement by the signatures or initials
of Lessor and Lessee. The street address of the Zone, of which the Premises is a
part, is 2335 N.W. 107th Avenue, Miami, Florida 33172. Lessor and Lessee
acknowledge that the Premises may be under construction or remodeling at the
date on which the Lease is executed.
B. Lessee is further granted the non-exclusive right in common with
other tenants of the Zone to use, and to permit its customers to use, public or
common lobbies, parking areas, roadways, hallways, stairways, escalators,
elevators and sanitary facilities in or adjacent to the Zone; provided, however,
that upon receipt of notice duly given by Lessor, such rights shall be subject
to reasonable rules and regulations from time to time established by Lessor.
Lessor may from time to time, upon giving notice thereof of Lessee, alter,
substitute and, as required by circumstances, proscribe the use of any one or
more of the subject areas or facilities.
Lessor expressly reserves the right, at Lessor's sole cost and
expense, to remove Lessee from the Premises and to relocate Lessee in some other
space of Lessor's choosing of approximately the same dimensions and size within
the Zone, which other space shall be decorated by Lessor at Lessor's expense.
Lessor shall have the right, in Lessor's sole discretion, to use such
decorations and materials from the existing Premises, or other materials, so
that the
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space in which Lessee is relocated shall be comparable in its interior design
and decoration to the Premises from which the Lessee is removed; provided
however, that if the Lessor exercises its election to remove and relocate Lessee
in other space within the Zone, which is at that time leasing for a higher rate
of Base Rent, then Lessee shall not be required to pay the differences between
the Base Rent of the Premises and the higher Base rent of the space in which
Lessee is relocated; provided further, that if Lessee is removed and relocated
in other space within the Zone which is then leasing at a Base Rent less than
the Base Rent of the Premises at that time, Lessee's Base Rent shall be reduced
to the Base Rent then being charged for the space in which Lessee has been
relocated. Nothing herein contained shall be construed to relieve Lessee, or
imply that Lessee is relieved of the liability for or obligation to pay general
services charges due by reason of the provisions of Article 4 of this Lease, the
provisions of which Article shall be applied to the space to which Lessee is
moved. Lessee agrees that Lessor's exercise of its election to remove and
relocate Lessee shall not terminate this Lease or release Lessee, in whole or in
part, from Lessee's obligation to pay the rents and perform the covenants and
agreements for the full Lease term.
C. Notwithstanding anything provided herein to the contrary, Lessee
agrees that Lessor shall have the right to place in the Premises (but in such
manner as to reduce to a minimum interference with Lessee's use of the Premises)
utility lines, pipes, structural members and the like to serve the Premises or
other tenants of the Zone, and to place, maintain and repair such utility lines,
pipes and the like, in, over and upon the Premises.
D. Lessee shall be further entitled to 2 parking spaces to be
designated by Lessor. If the Lessee should desire parking spaces in addition to
those provided above, such additional spaces, if available as determined by
Lessor, shall be at Lessee's sole cost and expense at rates determined from time
to time by Lessor.
E. The premises are further described as:
Building Two, Showroom 22 with app. 1,069 sq. ft.
Building Two, Showroom 23 with app. 1,069 sq. ft.
ARTICLE 2 - TERM OF LEASE
A. The term of this Lease shall be for a period for One (1) full year
commencing on August 16, 1999 (Commencement Date) and terminating on August 15,
2000 (Termination Date). Lessee shall have the right to review the terms of this
Lease for early termination upon the giving written notice of intention to
terminate by February 16, 2000, at which time they will have thirty (30) days to
vacate the premises (Lessor and Lessee accept to give each other notification by
way of an advanced written notice by February 16, 2000 of its intention of early
termination of the lease.)
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ARTICLE 3 - RENT
A. Lessee hereby covenants and agrees to pay Lessor as Base Rent for
the Premises the sum o Four Thousand Five Hundred Eleven and 18/100 Dollars
($4,511.18) per annum in equal monthly installments of Three Hundred Seventy
Five and 93/100 Dollars ($375.93) each, all in advance, on the first day of
every calendar month during the term hereof. If the term of this Lease commences
on a day other than the first day of a month, Lessee shall pay Base Rent equal
to one-thirtieth of the month Base Rent multiplied by the number of rental days
of such fractional month. If any installment of Base Rent or other additional
charges accruing under the Lease becomes overdue, a late charge of five percent
of the amount so overdue may be charged by the Lessor for the purpose of
defraying expenses incident to handling the delinquent payment.
B. Commencing August 15th, 2000 and annually thereafter, the Base Rent
provided above shall be increased by an amount equal to any percentage increase
in the cost of living as computed unde the Consumer Price Index for all Urban
Consumers published by the Bureau of Labor Statistics, U.S. Department of Labor
(the Index). For this purpose, the increase shall be applied if the Index in the
month of September is higher than the Index for September of the prior year. The
amount of increase shall be determined by multiplying the Base Rent payable
during the year in question by a fraction, the numerator of which is the Index
during the month of September and the denominator of which is the Index as of
September of the prior year. The amount of rent as then increased shall be paid
in equal monthly installments beginning immediately. Notwithstanding the
foregoing, the additional rent as computed under this paragraph shall not be
decreased by any year in which the Index decreases, but shall remain the same
during the ensuing year. These provisions shall be applied during the remaining
and any extended term of this Lease.
C. All rents and other charges called for herein shall be payable only
in legal tender of the United States of America. All payment of rent and other
charges shall be made to Lessor without notice or demand at such place as the
Lessor may from time to time designate in writing. Unless charged by the Lessor
as provided herein, all such amounts shall be addressed to Treasurer, Miami Free
Zone Corporation, 2305 N.W. 107th Avenue, Miami, Florida 33172. The extension of
time for the payment of any installment of rent or the acceptance by the Lessor
of any money other than legal tender of the United States shall not be a waiver
of the right of the Lessor to insist on having all other payments of rent made
at the time and in the manner provided above.
D. (1) Lessee has deposited with the Lessor the sum of One Thousand One
Hundred Twenty Seven and 80/100 Dollars ($1,127.80) as a security deposit, the
receipt whereof by check, subject to collection, is hereby acknowledged. Said
deposit shall be held by Lessor, without liability for interest thereon, as
security for the full and faithful performance by Lessee of each and every term,
covenant and condition of this Lease on the part of Lessee to be observed and
performed. The security deposit shall not be mortgaged, assigned, transferred or
encumbered by Lessee without the written consent of Lessor and any such act on
the part of Lessee shall be without force and effect and shall not be binding
upon Lessor. No interest shall
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be paid of said deposit. The Security Deposit will be returned to the Lessee
upon the proper return of the premises, all keys, passes and Zone Identification
materials as per Article 15 herein.
(2) If any of rents herein reserved or any other sum payable
by Lessee to Lessor is overdue and unpaid or if Lessor makes payments on behalf
of Lessee or if Lessee fails to perform any of the terms of this Lease, then
Lessor may, at its option, and without prejudice to any other remedy which
Lessor may have on account for the payment of the rents or other sums due from
Lessee, or towards any loss, damage or expense sustained by Lessor resulting
from such default on the part of Lessee; and in such event Lessee fully and
faithfully complies with all the terms, covenants and conditions of this Lease
and promptly pays all of the rentals as they fall due and all other sums payable
by Lessee to Lessor, the deposit shall be returned in full to Lessee following
the date of the expiration of the term hereof and the surrender of the Premises
by Lessee in compliance with the provisions of this Lease.
(3) If the bankruptcy, insolvency, reorganization or other
creditor-debtor proceedings are instituted by or against Lessee, or its
successors or assigns, or any guarantor of Lessee hereunder, the security
deposit shall be applied first to the payment of any rents and/or other charges
due Lessor for all periods prior to the institution of such proceedings and the
balance, if any, of such security deposit may be retained by Lessor in partial
liquidation of Lessor's damages.
(4) Lessor may deliver the security deposited by Lessee
hereunder to the purchaser of Lessor's interest in the Premises is such interest
is sold or transferred, and thereupon Lessor shall be discharged and released
from all further liability with respect to the deposit or the return thereof to
Lessee, and Lessee agrees to look solely to the new Lessor for the return of the
security deposit. This provision shall also apply to any subsequent transferees.
No holder of a mortgage or deed of trust or Lessor under a ground or underlying
lease to which this lease is or may be subordinate shall be responsible in
connection with the security deposited hereunder, unless such mortgagee or
holder of such deed of trust or Lessor has actually received the security
deposited hereunder.
E. In addition to the Base Rent, the Other Charges set forth in Article
4, below, and any and all other payments to be made by Lessee hereunder, for the
purpose of securing the collection thereof, shall be deemed to be additional
rent hereunder, whether or not designated as such, and shall be due and payable
on demand or together with the next succeeding installment of rent, whichever
first occurs. Lessor shall have the same rights and remedies upon Lessee's
failure to pay the same as for the non-payment of the rent. Lessor, at its
election, shall have the right (but not the obligation) to pay for or perform
any act which requires the expenditure of any sums of money by reason of the
failure or neglect of Lessee to perform any of the provisions of this Lease
within the grace period, if any, applicable thereto, and if Lessor elects to pay
such sums or perform such acts requiring the expenditure of monies, Lessee
agrees to repay Lessor, upon demand, all such sums, which shall be deemed to be
additional rent hereunder and be payable by Lessee as such.
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ARTICLE 4 - REAL ESTATE TAXES AND OTHER CHARGES.
A. (1) For the purpose of this Article, the term "Other Charges" covers
Lessee's proportionate share of the General Services which include, but are not
limited to, all real estate taxes, assessments, water and sewer charges, sales
and/or rent taxes, applicable Florida Sales and Use taxes general liability
insurance, Foreign Trade Zone bonds and administration, computer services,
security and surveillance, daily trash removal, common area electricity,
lighting, maintenance, cleaning and repair, parking, special assessments, other
governmental impositions and charges of every kind and nature whatsoever,
extraordinary as well as ordinary, foreseen and unforeseen, and each and every
installment thereof which shall or may, during the lease term, be levied,
assessed, imposed, become due and payable out of, or for, the Miami Free Zone or
any part thereof, and all costs incurred by Lessor in contesting, litigation or
negotiating the same with the governmental authority. Lessee agrees to pay its
proportionate share of the amount of real estate taxes which, during the term of
this Lease and any renewal or extension thereof, exceeds the amount payable by
Lessor for the first year the Miami Free Zone was assessed as improved property.
Lessee's proportionate share of the real estate taxes shall be computed by
multiplying the total amount of the excess real estate each year by a fraction,
the numerator or which shall be the Floor Area of the Premises and the
denominator of which shall be the total rentable floor area of all buildings in
the Miami Free Zone as of the beginning of the calendar year in which such taxes
are paid. Lessee hereby waives any right it may have by statute or otherwise to
protest real estate taxes to any public taxing authority.
(2) 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 Lessor; provided, however, that , if
at any time after the date hereof of the methods of taxation shall be altered so
that in lieu, of, as a substitute for or in addition to 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, (i) a tax on the rents received from such real
estate, or (ii) a license fee measured by the rents receivable by Lessor which
is otherwise measured by or based in whole or in part upon the Zone, or any
portion thereof, or (iii) an income or franchise tax, then the same shall be
included in the computation of real estate taxes hereunder, computed as if the
amount of such tax or fee so payable were that due if the Zone were the only
property of Lessor subject thereto.
B. For each year in which there is an excess in taxes Lessee shall pay
Lessor monthly one-twelfth of the amount of the Lessee's proportionate tax
liability based on the actual taxes for the preceding calendar year. Lessor
shall notify Lessee in writing of the actual amount due by Lessee for the
preceding calendar year when determined. Any amount paid by Lessee which exceeds
the true amount due shall be credited on the next succeeding payment due
pursuant to this Section. If Lessee has paid less than the true amount due,
Lessee shall pay the difference within ten days of receipt of notice from
Lessor. If the term of this Lease begins or ends other than on the first or last
day of a calendar year, these charges shall be billed and adjusted on the basis
of such fraction of a calendar year. Should the taxing authorities include in
such real estate taxes, machinery, equipment, fixtures, inventory or other
personal property or
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assets of the Lessee, then Lessee shall also pay its proportionate share of the
entire real estate taxes for such items.
C. (1) All costs and expenses of every kind and nature paid or incurred
by Lessor (including amounts determined as reasonable and appropriate reserves)
in operating, managing, equipping, providing security for, policing (including
U.S. Customs Services) and, to the extent provided by Lessor, lighting,
repairing, replacing, maintaining, heating and air conditioning (if the Zone
includes common areas, which are enclosed), landscaping and gardening all areas
within the Zone, shall be paid by Lessee, as hereinafter provided. Such costs
and expenses shall likewise include (but shall not be limited to) water and
sewer charges; premiums for workmen's compensation and similar insurance; wages,
unemployment taxes, social security taxes, and personal property taxes and
assessments; fees for required licenses and permits; supplies; reasonable
depreciation of equipment and administrative costs equal to 15% of the total
costs of operation and maintaining the Zone (such 15% factor shall not be
applied against operating reserves); but there shall be excluded costs of
equipment properly chargeable to capital account and depreciation of the
original cost of constructing buildings and other capital improvements within
the Zone. In addition, Lessee shall pay its share of the amount by which annual
premiums for public liability, property damage or five insurance exceed the
annual premiums for such insurance payable by Lessor during the first annual
premium period ending in calendar year 1979.
(2) Lessee's share of such costs and expenses shall be
computed on a monthly basis by multiplying the whole of such costs and expenses
by a fraction, the numerator of which is the total Floor Area in the Premises
and the denominator of which is the total gross square footage of all Lessees
within the Zone benefiting from such costs and expenses, as reasonably
determined by Lessor.
(3) Payment on account of Lessee's share shall be made monthly
in arrears, and at the times and in the fashion herein provided for the payment
of Base Rent. Lessor shall have the same rights and remedies for the non-payment
by Lessee of any amounts due hereunder as Lessor has hereunder for the failure
of Lessee to pay the Base Rent.
ARTICLE 5 - LESSOR'S WORK AND APPROVAL OF LESSEE'S PLANS AND SPECIFICATIONS.
Lessor covenants and agrees to construct the Premises substantially in
accordance with its construction obligations set forth in Exhibit "B" entitled
"Design Manual and Lease Criteria", which is attached hereto and incorporated
herein by reference. Lessor shall commence and complete its construction in the
Premises as soon as may practically be done, but Lessor shall not liable in any
manner whatsoever for its failure to do so.
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ARTICLE 6 - LESSEE'S WORK AND APPROVAL OF LESSEE'S PLAN AND SPECIFICATIONS.
A. Lessee covenants and agrees, after Lessor notifies Lessee in writing
that the shell of the Premises is ready for commencement of Lessee's work, to
commence and to promptly complete its construction work and installation of
fixtures with all due diligence in accordance with its construction obligations
set forth in Exhibit "B" and in accordance with its Preliminary Plans and
Specifications and its Working Plans and Specifications, as provided for herein.
If Lessee neglects, fails or refuses to promptly commence its work as aforesaid
and thereafter neglects, fails or refuses to diligently proceed with and
complete its work, then Lessor, after 30 days' notice to Lessee, may (1)
complete Lessee's work at Lessee's expense and thereupon commence the term of
this Lease, (2) commence hereunder notwithstanding the non completion of
Lessee's work, (3) declare this Lease canceled and of no further force and
effect, or (4) declare this Lease in default and accelerate all rents reserved
hereunder.
B. Lessee may, with the written consent of Lessor enter the Premises
for preliminary work prior to the completion of Lessor's work, provided that
Lessee's work shall be done in such manner so as not to interfere with the
completion of Lessor's Work.
C. Lessee shall furnish to Lessor all certificates and approval with
respect to work done by Lessee or on Lessee's behalf that may be required from
any authority for the issuance of a certificate of occupancy and that lessor
shall have no responsibility or liability whatsoever for any loss or damage to
any such fixtures or equipment installment or left in the Premises and Lessee's
entry on and occupancy of the Premises prior to the commencement of this Lease
shall be governed by and subject to all the provisions, covenants and conditions
to this Lease other than those requiring the payment of Rent and other charges.
D. Lessee must furnish Preliminary Plans and Specifications
incorporating the Lessee's construction obligations under Exhibit "B" for
Lessor's prior approval within 30 days after Lessor provided Lessee with outline
plans for the Premises. Within 60 days after approval by Lessor of Lessee's
Preliminary Plans and Specifications, Lessee shall submit Working Plans and
Specifications for Lessor's review and prior approval. All Preliminary Plans and
Specifications and Working Plans and Specifications and other architectural or
engineering drawings submitted or to be submitted by Lessee to Lessor shall
comply with Exhibit "B".
E. Lessee agrees not to place or suffer to be placed or to maintain on
the exterior of the Premise any sign, awning, advertising matter on the glass of
any window or door of the Premises without first obtaining the Lessor's written
approval thereof. Lessee further agrees to maintain such sign, awning,
decoration, lettering, advertising matter or other thing as may be approved in
good condition and repair at all times.
F. Any contractor or workman used to perform Lessee's work under
Exhibit "B" shall be dismissed from the job by Lessor or Lessor's architect if,
in the reasonable judgment of Lessor or Lessee shall exonerate, indemnify and
hold harmless the Lessor or Lessor's architect from any loss, cost, damage or
liability incurred by reason of any such demand.
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G. Lessor may, at any time require any contractor retained by Lessee to
do work on the Premises to furnish a payment bond for the benefit of Lessor or
Lessee.
H. Lessor may contract, at Lessee's expense, to have any of Lessee's
work done which directly affects the structural or other elements of the
Premises which Lessor has agreed to provide Lessee or other tenants of the Zone.
ARTICLE 7 - USE OF PREMISES
A. The Premises shall be occupied and used solely for the purpose
of:
Office Use. Exhibition of electronics, watches and general
merchandise
B. Lessee covenants and agrees to:
(1) conduct no sales to the public upon the Premises.
(2) store all trash and refuse in appropriate containers
within the Premises and to attend to the regular
disposal thereof in the manner designated by Lessor.
(3) refrain from burning any trash or rubbish within the
Premises or the Zone.
(4) use a refuse disposal service provided or approved by
the Lessor.
(5) keep the Premises in a clean and safe condition.
(6) prevent the Premises from becoming or being used in
any way which may be a nuisance to the Lessor or to
any Lessee in the Zone.
(7) abide by all reasonable rules and regulations from
time to time established by the Lessor.
C. Lessee covenants and agrees not to use or occupy or suffer or permit
the Premises or any part thereof to be used or occupied for any purpose contrary
to law or the rules or regulations of any public authority or the requirements
of any insurance underwriters or rating bureaus or in any manner so as to
increase the cost of insurance to the Lessor over and above the normal cost of
such insurance for the use above permitted for the type and location of the
building of which the Premises are a part. Lessee will, on demand, reimburse
Lessor for all extra premiums caused by Lessee's use of the Premises, whether or
not Lessor has consented to such use. Lessee shall at its sole expense promptly
comply with all present and future laws, regulations or rules of any county,
state, federal and other governmental authority and any bureau and department
thereof, and of the National Board of Fire Underwriters or any other body
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exercising similar functions which may be applicable to the Premises, including
the making of any required structural changes thereto. If Lessee shall install
any electrical equipment that overloads the lines in the Premises, Lessee shall
at its own expense make whatever changes are necessary to comply with the
requirements of the insurance underwriters and governmental authorities having
jurisdiction there over.
ARTICLE 8 - SPECIAL REQUIREMENTS
A. The Lessee shall pay all costs, expenses, claims, fines, penalties,
and damages, including attorneys' fees and court costs, whether or not judicial
or administrative proceedings are initiated, that may be paid or incurred by
Lessor because of the failure of the Lessee to comply with U.S. Customs
regulations, and the Lessee shall indemnify the Lessor from all liability
arising from such non-compliance. Upon termination of the lease, if there are
any discrepancies which may give rise to claim for duties, taxes, liquidated
damages, penalties or other charges by U.S. Customs, the Lessor shall continue
to have a lien on Lessee's property and inventory in an amount sufficient to
protect the Lessor against such claims.
B. Lessee agrees that it will adopt and utilize the inventory control
procedure required by the Lessor and by the United States Customs Service,
maintained by Lessor under supervision of the United States Customs Service.
Lessee shall pay Lessor for the use of said inventory control procedures and
systems, including computer services rendered at such rates as the Lessor may
reasonably establish, from time to time.
C. Lessor, as the operator of the Zone, is required to submit periodic
reports to the Foreign-Trade Zones Board and the United States Customs Service
or may be required to perform other acts as the operator of the foreign-trade
zone in compliance with other governmental regulations. Lessee hereby agrees to
fully comply in the creation and maintenance of procedures, systems, regulations
or programs which Lessor may, in its reasonable discretion, deem necessary to
ensure compliance with all governmental requirements. Notwithstanding the
foregoing, Lessor shall not be responsible for compliance by Lessee with the
applicable customs laws and regulations, and shall bear no responsibility for
the payment of any penalties assessed for Lessee's failure to comply with any
customs laws and regulations. Lessee agrees to hold Lessor harmless from any
liability arising from Lessee's failure to comply with customs laws and
regulations.
D. Lessee agrees that all liability for duties, taxes or penalties due
any agency of the United States government and arising from Lessee's use of the
Premises shall be borne by Lessee, including any duty, taxes or penalties on
merchandise which is pilfered, lost or not accounted for to the satisfaction of
the U.S. Customs Service for which Lessee may be liable. Lessee agrees to hold
Lessor harmless from the cost of any such assessment of duties, taxes or
penalties.
E. Lessee agrees that it will be bound by the provisions of
Foreign-Trade Zone No. 32 Tariff No. 1 attached hereto as Exhibit "C" and which
is incorporated herein by reference, any
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changes thereto or revisions or reissue thereof, and all Regulations promulgated
based thereon, during the term of this Lease and any extensions thereof.
F. Lessee agrees to keep the Premises open for business during all
hours of United States Customs Service operation in the Zone.
G. Lessor shall have no liability to Lessee for any failure of or delay
by the United States Customs Service in providing personnel to perform Customs
services at the Zone, even if such failure or delay restricts or prohibits
movement of goods into or out of the Zone.
ARTICLE 9 - ALTERATIONS
Lessee covenants and agrees not to make or permit to be made any
alterations, improvements and/or additions of any kind or nature to the Premises
or any part thereof except by and with written consent of Lessor first had and
obtained. All alterations, improvements and additions to the Premises shall be
made in accordance with the provisions of Exhibit "B" and all applicable laws
and shall at once when made or installed be deemed to have attached to the
freehold and to have become the property of Lessor and shall remain for the
benefit of Lessor at the end of the term or other expiration of this Lease in as
good order and condition as they were when installed, reasonable wear and tear
excepted. If prior to the termination of this Lease, or within 15 days
thereafter, Lessor so directs, Lessee shall promptly remove the additions,
improvements, fixtures and installations which were placed in the Premises by
Lessee and which are designated in said notice. Lessee shall repair any damage
occasioned by such removal and in default thereof Lessor may effect said
removals and repairs at Lessee's expense. In the event of making such
alterations, improvements and/or additions as herein provided, Lessee further
agrees to indemnify and save harmless the Lessor from all expenses, liens,
claims or damages to either persons or property arising out of or resulting from
the undertaking or making of said alterations, additions and improvements.
Lessor may, at any time, require any contractor retained by Lessee to make any
alternations in the Premises to furnish a payment bond for the benefit of Lessor
and Lessee.
ARTICLE 10 - MAINTENANCE OF PREMISES, INDEMNITY AND INSURANCE
A. (1) Lessor covenants and agrees to keep and maintain the roof (said
term excluding the suspended ceiling) and structural portions of the Premises
except for any damage thereto caused by any negligence (whether by act or
omission) of Lessee, its employees, agents, invitees, licensees, assignees or
contractors, in which event such damages shall be promptly repaired at the sole
cost and expense of Lessee. Other than as herein provided Lessor shall not be
responsible to make any other improvements or repairs of any kind, in or upon
the Premises.
(2) Lessee covenants and agrees to keep and maintain in good
order, condition and repair (which repair shall mean replace if necessary) the
Premises and every part thereof, except as hereinbefore provided, including but
without limitation, the exterior and interior
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portions of all doors, door checks, security gates, windows, glass, utility
facilities, plumbing and sewage facilities within the Premises or under the
floor slab including free flow up to the main sewer line, fixtures, heating,
air-conditioning (including exterior mechanical equipment), exterior utility
facilities and exterior electrical equipment serving the Premises and interior
walls, floors and ceilings, including compliance with applicable building codes
relating to fire extinguishers. If Lessee refuses or neglects to commence or
complete repairs promptly and adequately Lessor may, but shall not be required
to do so, make or complete said repairs and Lessee shall pay the cost thereof to
Lessor upon demand.
B. (1) Lessee hereby agrees to defend, pay, indemnify and save free and
harmless Lessor, and/or any fee owner or ground or underlying Lessors of the
Zones, from and against any and all claims, demands, fines, suites, actions,
proceedings, orders, decrees and judgments of any kind or nature by or in favor
of anyone whomsoever and from and against any and all costs and expenses,
including attorneys' fees, resulting from or in connection with loss of life,
bodily or personal injury or property damage arising, directly or indirectly out
of or from or on account of any occurrences in, upon, at or from the Premises or
occasioned wholly or in part through the use and occupancy of the Premises or
any improvements therein or appurtenances thereto, or by any act or omission of
Lessee or any subtenant, concessionaire or licensee or Lessee, or their
respective employees, agents, contractors, or invitees in, upon, at or from the
Premises or its appurtenances or any common areas of the Zone. It is agreed that
the indemnification provided for herein shall survive the termination of the
Lease.
(2) Lessee and all those claiming by, through or under Lessee
shall store their property in and shall occupy and use the Premises any
improvements therein and appurtenances thereto and all other portions of the
Zone solely at their own risk and Lessee and all those claiming by, through or
under Lessee hereby release Lessor, to the full extent permitted by law, from
all claims of every kind, including loss of life, personal or bodily injury,
damage to merchandise, equipment, fixtures or other property, or damage to
business or for business interruption, arising, directly or indirectly, out of
or from or on account of such occupancy and use or resulting from any present or
future conditions or state of repair thereof.
(3) Lessor shall not be responsible or liable at any time to
Lessee, or to those claiming by, through or under Lease, for any loss of life,
bodily or personal injury, or damage, loss or injury to property or business, or
for business interruption, that may be occasioned by or through the acts,
omissions or negligence of Lessee, it agents, servants and/or employees, or of
any other persons, or any other tenants or occupants of any portion of the Zone.
(4) Lessor shall not be responsible or liable at any time for
any defects, latent or otherwise, in any buildings or improvements in the Zone
or any of the equipment machinery, utilities, appliances or apparatus therein,
nor shall Lessor be responsible or liable at any time for loss of life, or
injury or damage to any person or to any property or business of Lessee, or
those claiming by, through, or under Lessee, caused by or resulting from the
bursting, breaking, leaking, running, seeping, overflowing or backing up of
water, steam, gas or sewage, in any part of the Premises or caused by or
resulting from Acts of God or the elements, or resulting from any defect or
negligence in the occupancy, construction, operation or use of any buildings or
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improvements in the Zone, including the Premises, or any of the equipment,
fixtures, machinery, appliances or apparatus therein.
(5) Lessee shall give prompt notice to Lessor in case of fire
or other casualty or accidents in the Premises or in the building of which the
Premises form a part or of any defects therein or in any of its fixtures,
machinery or equipment.
(6) In case Lessor, without fault on its part, shall be made a
party to any litigation commenced by or against Lessee, then Lessee shall
indemnify and hold lessor harmless therefrom and shall pay Lessor all costs and
expenses, including reasonable attorneys' fees, which Lessor may sustain by
reason thereof.
(7) Lessee expressly acknowledges that all of the foregoing
provisions of this Article shall apply and become effective from and after the
date Lessor shall deliver possession of the Premises to Lessee in accordance
with the terms of this Lease.
C. (1) Lessor's insurance: All the construction work described in
Exhibit "B" hereof, whether performed or paid for by Lessor or Lessee (including
all alterations, additions or improvements to the Premises made, with Lessor's
written consent, subsequent to the initial construction thereof) shall be
insured by Lessor against fire and such other risks as are, from time to time,
included in standard extended coverage endorsements and/or, at Lessor's option,
other special broad form coverages in amounts equal to at least 90% of the sound
insurable value thereof (including any increase in value thereof resulting from
increased construction costs), subject to deductibles. Subject to Lessee's
compliance with the applicable insurance requirements set forth in Exhibit "B"
hereof, Lessee shall carry such insurance with respect to Lessee's work in the
Premises (including any such subsequent alterations, additions, or improvements)
from and after the date of the commencement of such work.
(a) Comprehensive General Liability Insurance on an
occurrence basis with minimum limits of liability in an amount of $1,000,000 for
bodily injury, personal injury or death to any one person and $1,000,000 for
bodily injury, personal injury or death to more than one person and $500,000
with respect to damage to property, including water damage and sprinkler leakage
legal liability; Lessee shall, at Lessee's expense, cause to be excluded form
such liability insurance the "Care, Custody and Control Exclusion";
(b) Property Insurance covering loss or injury to
Lessee's merchandise, equipment fixtures or other property stored in the
Premises, however caused, in an amount adequate to cover the full replacement
value thereof, it being fully understood that Lessor is not an insurer of
Lessee's property, and it is the intent of the parties hereto that any losses
sustained by Lessee will be compensated for by insurance procured by Lessee for
its own property. In the event Lessee does not procure such insurance to protect
its own property, Lessor shall not be liable or responsible to Lessee, or those
claiming by, through or under Lessee for damage, loss, or injury to Lessee's
property, whether occasioned by or through the acts, omissions or negligence of
Lessor, its agents, servants or employees or any other persons, or any tenants
or occupants of any portion of the Zone;
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(c) Fire insurance, with extended coverage and
vandalism and malicious mischief endorsements, in an amount adequate to cover
the full replacement value of all fixtures and contents in the Premises in the
event of fire or other casualty;
(d) Plate glass insurance covering all plate glass in
the Premises;
(e) If there is a boiler or air-conditioning
equipment serving the Premises (whether installed in, adjoining, above or
beneath the same) Broad Form Boiler and Machinery Insurance in the amount of
$100,000; and
(f) Any and all insurance procured by the Lessee
whether it be to cover loss of property, liability or any other event or
circumstance, must contain a waiver of subrogation rights as against the Lessor
and any of its agents, servants and/or employees, it being the intent hereof
that any claims for damages to property or person of any type or nature shall be
borne by the Lessee's insurance company and/or the Lessee without recourse
against the Lessor, its agents, servants and/or employees.
(3) All Comprehensive General Liability insurance to be
procured by Lessee in pursuance of this Article and Exhibit "B" hereof shall be
issued in the names and for the benefit of Lessor, its designee(s) and Lessee by
one or more responsible insurance companies satisfactory to Lessor and licensed
to do business in Florida; and at Lessee's option, such insurance may be carried
under a blanket policy covering the Premises and any other of Lessee's stores,
offices, warehouses or other facilities. All policies of insurance mentioned in
Section C(2) of this Article shall contain the following endorsements:
(a) that such insurance may not be canceled or
amended with respect to Lessor except upon 15 days prior written notice from the
insurance company to Lessor sent by certified or registered mail;
(b) that Lessee shall be solely responsible for the
payment of all premiums under such policy and that Lessor shall have no
obligation for the payment thereof;
(c) that in the event of payment of any loss covered
by such policy, Lessor shall be paid first by the insurance company of its loss;
(d) an express waiver of any right of subrogation by
the insurance company against Lessor, the Lessee hereby expressly waiving any
such right of subrogation for any reason or occurrence whatsoever and for any
and all purposes, Lessee hereby waiving any and all claims of subrogation that
otherwise may inure to the benefit of Lessee's insurance company by operation of
law, common law or contract; and
(e) Lessee agrees to deliver to Lessor Certificates
or Memoranda of Insurance of all policies of insurance to be procured by Lessee
within 10 days of the inception of such policies and, at least 10 days prior to
the expiration of any such policy, Lessee shall deliver
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to Lessor Certificates or Memoranda of Insurance evidencing the renewal thereof.
The minimum limits of any insurance coverage to be maintained by Lessee
hereunder shall not limit Lessee's liability under the indemnity contained in
this Article or elsewhere hereunder.
D. Lessee shall not stock, use or sell or permit or suffer to be
stocked, used or sold any article or do anything in or about the Premises which
may be prohibited by or violate any of Lessor's insurance policies or the rules
and regulations of the fire Insurance Rating Organization having jurisdiction or
any similar body, or which will increase any insurance rates and premiums on the
Premises, the building of which it forms a part and/or other building or
improvements in the Zone. If as a result of:
(1) any failure of Lessee, or anyone claiming by, through or
under Lessee, to comply with the foregoing sentence of this Section D, or
(2) the use and occupancy of the Premises by Lessee or anyone
claiming by, through or under Lessee, whether or not Lessor has consented to the
same or,
(3) Lessee's failure to use and/or continuously to occupy and
operate Lessee's business in the Premises in the manner provided for in this
Lease, or
(4) Lessee's abandonment of the Premises,
the insurance rates applicable to any policies of insurance carried by Lessor
covering the Zone property or the rental income to be derived therefrom shall be
increased, Lessee agrees to pay Lessor within 10 days after Lessor's written
demand therefor, as additional rent hereunder, the entire portion of the
premiums for said insurance which shall be attributable to such higher rates.
In determining whether any increase in such rates is the result of any of the
aforementioned acts or omissions of Lessee or anyone claiming by, through or
under Lessee, a schedule or rule book issued by the applicable rating
organization or the rating procedures or rules of Lessor's insurance companies
shall be conclusive evidence of the several items and charges which make up the
insurance rates and premiums on the Premises and the Zone. If any such insurance
carried by Lessor shall be canceled by the insurance carrier as a result of the
aforementioned acts or omissions of Lessee or anyone claiming by, through or
under Lessee, Lessee agrees to indemnify and hold Lessor harmless from all
damages costs and expenses which Lessor may sustain by reason thereof.
E. Lessee agrees and warrants that with respect to all employees
working in Lessee's leased area and all business activities engaged in by
Lessee, Lessee shall be solely responsible for complying with all federal, state
and local health laws.
ARTICLE 11 - COMMON AREAS
All common areas and other common facilities (hereinafter collectively called
"Common Areas") made available by Lessor in or about the Zone shall be subject
to the exclusive control
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and management of Lessor, expressly reserving unto Lessor, without limitation,
the right to erect and install structures, equipment or facilities within the
enclosed portions or the parking or other areas. "Common Areas" (as initially
constructed or as the same may at any time thereafter be enlarged or reduced)
shall mean all areas, space, facilities, equipment, signs and special services
from time to time made available by Lessor for the common and joint use and
benefit of Lessor, the Lessee and other tenants and occupants of the Zone, and
their respective employees, agents, subtenants, concessionaires, licensees,
customers and other invitees, which may include (but shall not be deemed a
representation as to their availability), the sidewalks, parking areas, access
roads, driveways, landscaped areas, truck service ways, tunnels, loading docks,
pedestrian malls (enclosed or open), courts, stairs, ramps, elevators,
escalators, comfort and first aid stations and public washrooms. Lessor hereby
expressly reserves the right, from time to time: to construct, maintain and
operate lighting and other facilities, equipment and signs on all of said Common
Areas; to regulate the same; to change the area; level; location and arrangement
of the parking areas and other facilities forming a part of said Common Areas;
to build multi-story parking facilities; to restrict parking by tenants and
other occupants of the Zone and their employees, agents, subtenants,
concessionaires and licensees; to enforce parking charges (by operation of
meters or otherwise), to close temporarily all or any portion of the Common
Areas for the purpose of making repairs or changes thereto and to discourage
non-customer parking; and to establish, modify and enforce reasonable rules and
regulations with respect to the Common Areas and the use to be made thereof.
Lessor shall operate, manage, equip, police, light and maintain the common Areas
in such manner as Lessor, in its sole discretion may from time to time
determine, and Lessor shall have sole right and exclusive authority to employ
and discharge all personnel with respect thereto. Lessee is hereby given a
license (in common with all others to whom Lessor has or may hereafter grant
rights) to use, during the term of this Lese, the Common Areas of the Zone as
they may now or at any time during the term of this Lease exist, provided,
however that if the size, location or arrangement of such Common Areas or the
type of facilities at any time forming a part thereof be changed or diminished,
Lessor shall not be subject to any liability therefor, nor shall Lessee be
entitled to any compensation or diminution or abatement of rent therefor, nor
shall such change or diminution of such areas be deemed a constructive or actual
eviction. In order to establish that the Zone and any portion thereof is and
will continue to remain private property and to prevent a dedication thereof or
the accrual of any rights to any person or to the public therein, the Lessor
hereby reserves the unrestricted right, in the Lessor's sole discretion, to
close all or any portion of the Zone owned, leased or controlled by Lessor to
the general public for one day in each calendar year, and in connection
therewith, to seal off all entrances to the Zone, or any portion thereof. Lessee
hereby acknowledges, consents and agrees that any and/or all service, facilities
and access by the public to the Premises and/or to the Zone may be suspended in
whole or in part on legal holidays, on such other days as amy be declared by
local, state or federal authorities as days of observance, and/or during any
periods of actual or threatened civil commotion, insurrection or other
circumstances beyond Lessor's control when Lessor, in Lessor's reasonable
judgment, shall deem the suspension of such services, facilities and access
necessary for the protection and/or preservation of persons and/or property.
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ARTICLE 12 - MECHANICS LIEN OR CLAIMS
Lessee shall do all things reasonably necessary to prevent the filing of any
mechanics' or other liens against the Premises or any other portion of the Zone
or the interest of the Lessor or any ground or underlying Lessors therein or the
interest of any mortgagees or holders of any deed of trust covering the Zone by
reason of any work, labor, services or materials performed or supplied or
claimed to have been performed or supplied to Lessee, or anyone holding the
Premises, or any part thereof, through or under Lessee. If any such lien shall
at any time be filed, Lessee shall either cause the same to be vacated and
canceled or record within 10 days after the date of the filing thereof, or, if
the Lessee in good faith determines that such lien should be contested, Lessee
shall furnish such security, by surety bond or otherwise, as may be necessary or
be prescribed by law to release the same as a lien against the real property and
to prevent any foreclosure of such lien during the pendency of such contest. If
Lessee shall fail to vacate or release such lien in the manner and within the
time period aforesaid then, in addition to any other right or remedy of Lessor
resulting from Lessee's said default, Lessor may, but shall not be obligated to
, vacate or release the same either by paying the amount claimed to be due or by
procuring the release of such lien by giving security or in such other manner as
may be prescribed by law. Lessee shall repay to Lessor, as additional rent
hereunder on demand, all sums disbursed or deposited by lessor pursuant to the
foregoing provisions of this Section, including Lessor's cost and expense of
attorneys' fees incurred in connection therewith. However, nothing contained
herein shall imply any consent or agreement on the part of Lessor or any ground
or underlying Lessors or mortgagees or holders of deeds of trust of the Zone to
subject their respective estates or interest to liability under any mechanics'
or other lien law, whether or not the performance or the furnishing of such
work, labor, services or materials to Lessee or anyone holding the Premises, or
any part thereof, through or under Lessee, shall have been consented to by
Lessor and/or any of such parties.
ARTICLE 13 - DESTRUCTION
If the Premises are partially damaged by fire or other casualty insured under
Lessor's insurance policies, then upon Lessor's receipt of the insurance
proceeds, Lessor shall, except as otherwise provided herein, repair and restore
the same (exclusive of Lessee's fixtures, decorations, signs and contents)
substantially to the condition thereof immediately prior to such damage or
destruction, limited, however, to the extent of the insurance proceeds received
by Lessor therefor. If by reason of such occurrence:
(1) the Premises are rendered wholly untenantable, or
(2) the Premises are damaged in whole or in part as a result
of a risk which is not covered by Lessors insurance policies, or
(3) the Premises are damaged in whole or part during the last
three years of the term (or of any renewal term) hereof, or
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(4) the building of which the Premises form a part of all of
the buildings which then comprise the Zone is or are damaged (whether or not the
Premises are damaged) to an extent of 50% or more of the then replacement value
thereof, or
(5) any or all of said buildings or the Common Areas of the
Zone are damaged (whether or not the Premises are damaged) to such an extent
that the Zone cannot in the sole judgment of the Lessor be operated as an
integral unit, then or in any such events, Lessor may elect either to repair the
damage as aforesaid, or to cancel this Lease by written notice of cancellation
given to Lessee within 180 days after the date of such occurrence, and thereupon
this Lease shall cease and terminate with the same force and effect as though
the date set forth in the Lessor's said notice were the date herein fixed for
the expiration of the Term hereof and Lessee shall vacate and surrender the
Premises to Lessor. Upon the termination of this Lease, as aforesaid, Lessee's
liability for the rents reserved hereunder shall cease as of the effective date
of the termination of this Lease, as aforesaid, Lessee's liability for the rents
reserved hereunder shall cease as of the effective date of the termination of
this lease, subject, however, to the provisions for the prior abatement of rent
hereinafter set forth. Unless this Lease is terminated by Lessor, as aforesaid,
this Lease shall remain in full force and effect and the Parties waive the
provisions of any law to the contrary, the Lessee shall repair, restore or
replace Lessee's fixtures, decorations, signs, and contents in the Premises in a
manner and to at least a condition equal to that existing prior to their damage
or destruction and the proceeds of all insurance carried by Lessee on said
property shall be held in trust by Lessee for the purposes of such repair,
restoration or replacement. If by reason of such fire or other casualty the
Premises are rendered wholly untenantable the fixed rent shall be fully abated,
or if only partially damaged such rent shall be abated proportionately as to
that portion of the Premises rendered untenantable, in either event (unless
Lessor shall elect to terminate this Lease, as aforesaid) until 15 days after
notice by Lessor to Lessee that the Premises have been substantially repaired
and restored or until Lessee's business operations are restored in the entire
Premises, whichever shall occur sooner. Lessee shall continue the operation of
Lessee's business in the Premises or any part thereof not so damaged during any
such period to the extent reasonably practicable from the standpoint of prudent
business management and, except for such abatement of the Rent as hereinabove
set forth, nothing herein contained shall be construed to abate Lessee's
obligations for the payment of any additional rents and charges reserved
hereunder. If such damage or other casualty shall be caused by the negligence of
Lessee or of Lessee's subtenants, concessionaires, licensees, contractors or
invitees or their respective agents or employees, there shall be no abatement of
rent. Except for the abatement of the Rent hereinabove set forth, Lessee shall
not be entitled to and hereby waives all claims against Lessor for any
compensation or damage for loss of use of the whole or any part of the Premises
and/or for any inconvenience or annoyance occasioned by any such damage,
destruction, repair or restoration. The provisions of any statute or other law
which may be in effect at the time of the occurrence of any such damage or
destruction, under which a Lease is automatically terminated or a Lessee is
given the right to terminate a Lease upon the occurrence of any such damage or
destruction, are hereby expressly waive by Lessee.
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ARTICLE 14 - ACCESS TO PREMISES
A. Lessee agrees to permit Lessor or Lessor's agents to inspect or
examine the Premises at any reasonable time and to permit Lessor to make such
repairs, alterations, improvements or additions in the Premises or to the
building of which Lessee has covenanted herein to do and has failed so to do or
which Lessor may be obligated or may desire to undertake, without the same being
construed as an evidence of Lessee in whole or in part and the rent shall in no
wise abate while such repairs, alterations, improvements or additions are being
made by reason of loss or interruption of the business of Lessee because of the
prosecution of such work. Lessor shall have the right to enter the Premises and
to exhibit same to prospective tenants and/or mortgagees.
B. Lessee agrees to permit U.S, Customs agents to enter the Premises at
any reasonable time, without notice, for the purpose of examining the same.
ARTICLE 15 - SURRENDER OF PREMISES
A. Lessee covenants and agrees to deliver up and surrender to the
Lessor possession of the Premises upon expiration of this Lease, or its earlier
termination as herein provided, broom clean and in as good condition and repair
as the same shall be at the commencement of the term of this Lease, or may have
been put by the Lessor during the continuances thereof, ordinary wear and tear
and damage by fire or the elements beyond Lessee's control excepted.
B. Lessee shall on Lessor's written directions and at Lessor's option
at Lessee's expense remove all property of Lessee and all alterations, additions
and improvements as to which Lessor shall have made the election hereinabove
provided, repair all damage to the Premises caused by such removal and restore
the Premises to the condition in which they were prior to the installation of
the articles so removed. Any property not so removed at the expiration of the
term hereof and as to which Lessor shall have not made said election, shall be
deemed to have been abandoned by Lessee and may be retained or disposed of by
Lessor, as Lessor shall desire. Lessee's obligation to observe or perform this
covenant shall survive the expiration or termination of this Lease.
ARTICLE 16 - UTILITIES
A. Lessee covenants and agrees to pay for all utility services rendered
or furnished to the Premises, including heat, water, gas, electricity, sewer
rental, sewage treatment facilities and the like, together with all taxes levied
or other charges on such utilities. If Lessor shall supply any such services, or
if any such services are required to be paid for by Lessor under a master meter,
Lessee will purchase same from Lessor at charges not in excess of the charges
for the service in question made by any publicly utility corporation or
governmental agency supplying such utilities in the area plus an additional 10%
for Lessor's costs as may be incurred in connection therewith. Any such charges
for service supplied by Lessor shall be due and payable
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within 10 days after billing therefor are rendered to Lessee. Lessor shall have
the same rights for non-payment of such charges as it would have under this
Lease for non-payment of rent. In no event shall Lessor be liable for the
quality, quantity, failure or interruption of such service to the Premises.
B. Lessor may, with notice to Lessee, or without notice in the case of
an emergency, cut off and discontinue gas, water, electricity and any or all
other utilities whenever such discontinuance is necessary in order to make
repairs or alterations. No such action by Lessor shall be construed by Lessee to
terminate this Lease, nor shall Lessor be in any way responsible or liable for
such action.
ARTICLE 17 - ASSIGNMENT AND SUBLETTING
A. Lessee covenants and agrees not to assign this Lease or to sublet
the whole or any part of the Premises, or to permit any other persons to occupy
same without the written consent of the Lessor, references elsewhere herein to
assignees notwithstanding. If the Lessee requests permission to either assign
this Lease, or to sublet the whole or any part of the Premises, or this Lease is
deemed to be assigned pursuant to Paragraph B of this Article, then Lessor may
elect to do one of the following:
(1) consent on such reasonable terms and conditions as
Lessor may deem advisable or
(2) withhold consent in its sole and absolute discretion
Any such assignment or subletting even with the consent of Lessor, shall not
relieve Lessee from liability for payment of rent or other sums herein provided
or from the obligation to keep and be bound by the terms, conditions and
covenants of this Lease. The acceptance of rent from any other person shall not
be deemed to be a waiver of any of the provisions of this Lease or to be a
consent to the assignment of this Lease or subletting of the Premises.
B. If Lessee is a corporation, then any transfer of this Lease from
Lessee by merger, consolidation or liquidation or any change in ownership or
power to vote of a majority of its outstanding voting stock shall constitute an
assignment for the purpose of this Lease.
C. An assignment for the benefit or creditors or by operation of law
shall not be effective to transfer any rights to assignee without the written
consent of the Lessor first having been obtained.
D. Lessor may assign this Lease, or the rents due hereunder, at any
time.
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ARTICLES 18 - CONDEMNATION
A. If the whole of the Premises or such part thereof as will render the
remainder untenantable shall be acquired or taken by eminent domain for any
public or quasi-public use or purpose or by private purchase in lieu thereof,
then this Lease and the term hereof shall automatically cease and terminate as
of the date of title vesting in such proceedings.
B. If any part of the Premises shall be so taken and such partial
taking shall render that portion not so taken unsuitable for the purposes for
which the Premises were leased, then Lessor and Lessee shall each have the right
to terminate this Lease by written notice given to the order within 60 days
after the date of title vesting in such proceeding. If any part of the Premises
shall be so taken and this Lease shall not be terminated, as aforesaid, then
this Lease and all of the terms and provisions thereof shall continue in full
force and effect, except that the Rent shall be reduced in the same proportion
that the floor area of the Premises taken (including basement and mezzanine
space, if any) bears to the original floor are demises, and Lessor shall, upon
receipt of the award in condemnation, make all necessary repairs or alterations
(exclusive of Lessee's fixtures, decorations, signs and contents) to restore the
portion of the Premises remaining to as near its former condition as the
circumstances will permit, and to the building of which the Premises from part
to the extent necessary to constitute the portion of the building not so taken a
complete arquitectural, unit; provided, however, that Lessor, in any event,
shall not be required to spend for such repair and alteration work an amount in
excess of the respective amounts received by Lessor as damages for the taking of
such part of the Premises and of the building of which it forms a part, and
Lessee, at Lessee's expense, shall make all necessary repairs and alterations to
Lessee's trade fixtures, decorations, signs, and contents.
C. As used herein, the amount received by Lessor shall mean that
portion of the award in condemnation received by Lessor from the condemning
authority which is free and clear of all prior claims or collections by the
holders of any mortgages or deeds of trust or any ground of underling Lessors.
D. If more than 20% of the floor area of the building of which the
Premises forms a part or of the Zone shall be taken as aforesaid, Lessor shall
have the right, by written notice given to Lessee, to terminate this Lease, such
termination to be effective as of the date of title vesting in such proceedings.
E. If this Lease is terminated as provided in this Article all rents
shall be paid by Lessee up to the date that Possession is so taken by public
authority and Lessor shall make an equitable refund of any rents paid by Lessee
in advance and not yet earned.
F. All damages or compensation awarded or paid for any such taking,
whether for the whole or a part of the Premises or any part of the land,
building and improvements constituting the Zone, shall belong to and be the
property of Lessor without any participation by lessee, whether such damages or
compensation shall be awarded or paid for diminution in value of the fee or any
interest of Lessor in any ground or underlying lease covering the Zone or in the
leasehold estate created hereby, and Lessee hereby expressly waives and
relinquishes all claims
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to such award or compensation or any part thereof and of the right to
participate ;in any such condemnation proceedings against the owners of any
interest in the Zone; provided, however, that noting herein contained shall be
construed to preclude Lessee from prosecuting any claim directly against the
condemning authority, but not against Lessor, for the value of or damages to
and/or for the cost of removal of Lessee's movable fixtures and other personal
property which under the terms of the Lease, as may be recoverable by Lessee in
Lessee's own right, provided further that no such claim shall diminish or
otherwise adversely affect Lessor's award. Each Party agrees to execute and
deliver to the other all instruments that may be required to effectuate the
provisions of this Article.
ARTICLE 19 - DEFAULT BY LESSEE
A. If at any time after the date of Lease (whether prior to the
commencement of or during the Term of this Lease):
(1) any proceedings in bankruptcy, insolvency or
re-organization shall be instituted against Lessee pursuant to any federal or
state law now or hereafter enacted, or any receiver or trustee shall be
appointed for all or any portion of Lessee's business or property, or any
execution or attachment shall issue against Lessee or any of Lessee's business
or property or against the leasehold estate created hereby, and any such
proceedings, process or appointment be not discharged and dismissed within 30
days from the date of such filing, appointment or issuance; or
(2) Lessee shall be adjudged a bankrupt or insolvent, or
Lessee shall make an assignment for the benefit of creditors, or Lessee shall
file a voluntary petition in bankruptcy or petitions for (or enters into) an
arrangement or for reorganization, composition or any other arrangement with
Lessee's creditors under any federal or state law now or hereafter enacted, or
this Lese or the estate of the Lessee herein shall pass to or devolve upon, by
operation of law or otherwise, anyone other than Lessee (except as herein
provided), the occurrence of any one of such contingencies shall be deemed to
constitute and shall be construed as a repudiation by Lessee of Lessee's
obligations hereunder and shall cause this Lease ipso facto to be canceled and
terminated, without thereby releasing Lessee; and upon such termination Lessor
shall have the immediate right to re-enter the Premises and to remove all
persons and property therefrom and this Lease shall not be treated as an asset
of the Lessee's estate and neither the Lessee nor anyone claiming by, through or
under Lessee by virtue of any law or any order of any court shall be entitled to
the possession of the Premises or to remain in the possession thereof. Upon the
termination of this Lease, as aforesaid, Lessor shall have the right at its
option to retain as partial damages, and not as a penalty, any prepaid rents and
any security deposited by Lessee hereunder and Lessor shall also be entitled to
exercise such rights and remedies to recover from Lessee as damages such amounts
as are specified in this Article, unless any statute or rule of law governing
the proceedings in which such damages are to be proved shall lawfully limit the
amount of such claims capable of being so proved, in which case Lessor shall be
entitled to recover, as and for liquidated damages, the maximum amount which may
be allowed under any such statute or rule of law. As used herein the term
"Lessee" shall be deemed to include Lessee and its successors and assigns and
the guarantor of the Lessee's obligations under this Lease, if any.
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B. (1) If this Lease be assigned or the Premises be sublet, either
voluntarily or by operation of law, except as herein provided, or if Lessee
shall fail (i) to pay, when due, any rental or other sum payable hereunder
within five days after the same are due; or (ii) to correct any default with
respect to Article 8 hereof within five days after written notice of such
default shall have been given to Lessee; or (iii) to keep, observe or perform
any of the other terms, covenants and conditions herein to be kept, observed and
performed by Lessee for more than five days after written notice shall have been
given to Lessee specified (other than a default under subdivision (i) hereof)
shall be of such nature that the same cannot be reasonably cured or remedied
within said five day period, if Lessee shall not in good faith have commenced
the curing or remedying of such default within such five day period and shall no
thereafter continuously and diligently proceed therewith to completion; (iv) or
if Lessee shall make default with respect to any other lease between Lessor and
Lessee, then and in any one or more of such events *herein sometimes referred to
as an "Event of Default"), Lessor shall have the immediate right to re-enter the
Premises, either by summary proceedings, by force or otherwise and to dispossess
Lessee and all other occupants therefrom and remove and dispose of all property
therein or, at Lessor's election, to store such property in a public warehouse
or elsewhere at the cost and for the account of Lessee, all without service of
any notice of intention to re-enter with or without resort to legal process
(which Lessee hereby expressly waives) and without Lessor being deemed guilty of
trespass or becoming liable for any loss or damage which may be occasioned
thereby. Upon the occurrence of any such Event of Default, Lessor shall also
have the right, at its option, in addition to and not in limitation of any other
right or remedy, to terminate this Lease by giving Lessee a written three days'
notice of cancellation and upon the expiration of said three days, this Lease
and the Term hereof shall end ad expire as fully and completely as if the date
of expiration of such three day period were the date herein definitely fixed for
the end and expiration of this Lease and the Term hereof and thereupon, unless
Lessor shall have theretofore elected to reenter the Premises, Lessor shall have
the immediate right of re-entry, in the manner aforesaid, and Lessee and all
other occupants shall quit and surrender the Premises to Lessor, but Lessee
shall remain liable as hereinafter provided; provided, however that if Lessee
shall default (-i-) in the timely payment of any rental or other sum payable
hereunder and any such default shall continue or be repeated for two consecutive
months, or for a total of four months in any period of 12 months, or (-ii-) in
the performance of any other covenant of this Lease more than six times, in the
aggregate, in any period of six months, then, notwithstanding that such defaults
shall have been cured within the period after notice as above provided, any
further similar default shall be deemed to be deliberate and Lessor thereafter
may serve said written three day notice of termination without affording to
Lessee an opportunity to cure such further default.
(2) If by reason of the occurrence of any such Event of
Default, the Term of this Lease shall end before the date thereof originally
fixed herein, or Lessor shall re-enter the Premises, or Lessee shall be ejected,
dispossessed, or removed therefrom by summary proceedings or in any other
manner, whether or not specifically enumerated in this Lese, or if the Premises
become vacant, deserted or abandoned, Lessor at any time thereafter may relet
the Premises, or any part or parts thereof, either in the name of Lessor or as
agent for Lessee, for a term or terms which may, at Lessor's option, be less
than or exceed the period of the remainder of the term hereof or which otherwise
would have constituted the balance of the term of this
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Lease, and grant concessions of free rent. Lessor shall receive the rents from
such reletting and shall apply the same, first, to the payment of any
indebtedness other than rent due hereunder from Lessee, to Lessor; second to the
payment of such expenses as Lessor may have incurred in connection with
re-entering, ejecting, removing, dispossessing, reletting, altering, repairing,
redecorating, subdividing, or otherwise preparing the Premises for reletting,
including brokerage and attorneys' fees; and the residue, if any, Lessor shall
apply to the fulfillment of the terms, covenants and conditions of Lessee
hereunder and Lessee hereby waives all claims to the surplus, if any. Lessee
shall be and hereby agrees to be liable for and to pay Lessor any deficiency
between the rent, additional rents and other charges reserved herein and the net
rentals, as aforesaid, of reletting, if any, for each month of the period which
otherwise would have constituted the balance of the term of this Lease. Lessee
hereby agrees to pay such deficiency in monthly installments on the rent days
specified in this Lese and any suit or proceeding brought to collect the
deficiency for any month, either during the Term of this Lease or after any
termination thereof, shall not prejudice or preclude in any way the rights of
Lessor to collect the deficiency for any subsequent month by a similar suit or
proceeding. Lessor shall in no event be liable in any way whatsoever for the
failure to relet the Premises or , in the event of such reletting, for failure
to collect the rents reserved thereunder. Lessor is hereby authorized and
empowered to make such repairs, alterations, decorations, subdivisions or other
preparations for the reletting of the Premises as Lessor shall deem fit,
advisable and necessary, without in any way releasing Lessee from any liability
hereunder, as aforesaid. Lessor shall have a lien for the payment of all sums to
be paid by Lessee hereunder (including all expenses incurred by Lessor in
recovering possession of the Premises and the reletting thereof, which shall be
deemed to be rent) upon all of Lessee's property, which shall be in addition to
any landlord's lien that may now or at any time hereafter be provided by law.
(3) No such re-entry or taking possession of the Premises by
Lessor shall be construed as an election on its part to terminate this Lease
unless a written notice of such intention be given to Lessee or unless the
termination thereof shall result as a matter of law or be decreed by a court of
competent jurisdiction. Notwithstanding any such reletting without termination,
Lessor may at any time thereafter elect to terminate this Lease for such
previous breach.
(4) If this Lease is terminated pursuant to the foregoing
provisions of this Article, Lessor may recover from Lessee all damages it may
sustain by reason of Lessee's default, including the cost of recovering the
Premises and attorneys' fees and upon so electing and in lieu of the damages
that may be recoverable under subparagraph B(2) above (measured by the monthly
deficiency, if any) shall be entitled to recover form Lessee, as and for
liquidated damages, and not as a penalty, an amount equal to the difference
between the rent, additional rents and other charges reserved hereunder for the
period which otherwise would have constituted the balance of the Term of this
Lease and the rental value of the Premises at the time of such election, for
such period, both discounted at the rate of four percent per annum to present
worth, all of which shall immediately be due and payable by Lessee to Lessor. In
determining the rental value of the Premises, the rental realized by any
reletting, if such reletting be accomplished by Lessor within a reasonable time
after the termination of this Lease, shall be, deemed prima facie to be rental
value. Nothing herein contained, however, shall limit or
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prejudice the right of Lessor to prove and obtain as liquidated damages by
reason of such termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, the governing the proceedings
in which, such damages are to be provided, whether or not such amount be
greater, equal to, or less than the amounts referred to in subparagraph B(2) of
this Article.
(5) If Lessee is declared in default of this Lease by reason
of the occurrence of any Event of Default, then Lessor may immediately or at any
time thereafter terminate Lessee's access to the Alternate Inventory Control
System maintained by Lessor under the supervision of the United States Customs
Service.
(6) The Parties hereby waive trial by jury in any action,
proceeding or counterclaim brought by either Party against the other on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Lessor and Lessee created hereby, the Lessee's use or occupancy
of the Premises, and/or any claim for injury or damage. In the event Lessor
commences any action or proceeding for non-payment of rent, additional rents or
other charges due hereunder, Lessee agrees not to interpose any counterclaim of
any nature or description in any such action or proceedings. The foregoing,
however shall not be construed as a waiver of Lessee's right to assert such
claim in a separate action or proceeding instituted by Lessee.
(7) Lessee hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event Lessee
shall be evicted or dispossessed from the Premises for any cause, or Lessor
re-enters the Premises following the occurrence of any Event of Default
hereunder, or this Lease is terminated by the expiration date thereof originally
fixed herein.
(8) In the event of any breach or threatened breach by Lessee
of any of the terms and provisions of this Lease, Lessor shall have the right to
injunctive relief as if no other remedies were provided herein for such breach.
The rights and remedies herein reserved by or granted to
Lessor are distinct, separate and cumulative, and the exercise of any of them
shall not be deemed to preclude, waive or prejudice Lessor's right to exercise
any or all others.
(9) Lessee hereby expressly waives any right to assert a
defense based on merger and agrees that neither the commencement of any action
or proceeding, nor the settlement thereof, nor the entry of judgment therein
shall bar Lessor from bringing any subsequent actions or proceeds from time to
time.
(10) If Lessee shall default hereunder prior to the date fixed
as the commencement of any renewal or extension of this Lease, whether by a
renewal option herein contained or by separate agreement, Lessor may cancel such
option or agreement for renewal or extension of this Lease upon two days'
written notice to Lessee.
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(11) Wherever in this Lease the Lessor has reserved or is
granted the right to "re-entry" into the Premises the use of such word is not
intended, nor shall it be construed to be limited to its technical legal
meaning.
(12) In the event that Lessor should bring suit for the
possession of the Premises, for the recovery of any sum due under, or because of
the breach of, any covenant of this Lease, or for any other relief against
Lessee, declaratory or otherwise, or should Lessee bring any suit for any relief
against Lessor, declaratory or otherwise, arising out of this Lease, and Lessor
should prevail in any such suit, Lessee agrees to pay Lessor all costs, expenses
and reasonable attorneys' fees that Lessor may have incurred in connection
therewith, which shall be deemed to have accrued on the commencement of such
suit and shall be enforceable whether or not such suit is prosecuted to
judgment. Nothing contained in this Article shall be deemed or construed to
require Lessor to give notices herein provided for prior to the commencement of
a summary proceeding for non-payment or rent, it being intended that any such
notice or notices are for the sole and only purpose of creating a conditional
limitation or a condition precedent hereunder to which this Lease shall
terminate and Lease shall become a hold-over tenant.
ARTICLE 20 - DEFAULT BY LESSOR
A. Lessor shall in no event be charged with default in the performance
of any of its obligations hereunder unless and until Lessor shall have failed to
perform such obligations within 60 days (or such additional time as is
reasonably required to correct any such default) after notice to Lessor by
Lessee properly specifying wherein Lessor has failed to perform any such
obligations.
B. If the holder of record of any mortgage covering the Premises shall
have given prior written notice to Lessee that it is the holder of a mortgage
and that such notice includes the address at which notices to such mortgages are
to be sent, then Lessee agrees to give the holder of record of such mortgagee
notice simultaneously with any notice given to Lessor to correct any default of
Lessor and hereinabove promises and agrees that the holder of record of such
mortgage shall have the right, within 60 days after receipt of said notice, to
correct or remedy such default before Lessee may take any action under this
Lease by reason of such default. Any notice of default given Lessor shall be
null and void unless simultaneous notice has been given to said mortgagee.
ARTICLE 21 - ESTOPPEL CERTIFICATE, ATTORNMENT AND SUBORDINATION
A. This lease is subject and subordinate to each and every ground or
underlying lease of the Zone or any part thereof heretofore or hereafter made by
Lessor (all of the foregoing collectively being the "Superior Leases") and to
each and every trust indenture and mortgage (collectively the "Mortgages") which
may now or hereafter affect the Zone or any part thereof or any such Superior
Lease and the leasehold interest created thereby, and to all renewals,
extensions, supplements, amendments, modifications, consolidations and
replacements thereof or
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thereto, substitutions therefor, and advances made thereunder. This clause shall
be self-operative and no further instrument of subordination shall be required
to make the interest of any Lessor under a Superior Lease, or trustee or
mortgagee of a Mortgage superior to the interest of Lessee hereunder. In
confirmation of such subordination, however, Lessee shall execute promptly any
certificate that Lessor may request and Lessee hereby irrevocably constitutes
and appoints Lessor as Lessee's attorney-in-fact to execute any such certificate
or certificates for and on behalf of Lessee. However, should any Lessor under
such Superior Lease or any mortgagee under any such Mortgage request that this
lease be made superior, rather than subordinate, to any such Superior Lease
and/or Mortgage, then Lessee, within 10 days following Lessor's written request
therefor, agrees to execute and deliver, without charge, any and all documents
(in form acceptable to Lessor and such Lessors or mortgagees) effectuating such
priority. Lessee covenants and agrees that, except as expressly provided herein,
Lessee shall not do anything that would constitute a default under any Superior
Lease or Mortgage, or omit to do anything that Lessee is obligated to do under
the terms of this lease so as to cause Lessor to be in default under any of the
foregoing.
B. If at any time prior to the expiration of the term hereof, any
Superior Lease shall terminate or be terminated for any reason, Lessee agrees,
at the election and upon demand of any owner of the Zone or the Lessor under any
such other Superior Lease, or of any mortgagee in possession of the Zone, to
attorn, from time to time, to any such owner, Lessor or mortgagee, upon the then
executory terms and conditions of this Lease, for the remainder of the term
originally demised in this Lease, provided that such owner, Lessee or mortgagee,
as the case may be, or receiver caused to be appointed by any of the foregoing,
shall then be entitled to possession of the Zone. The provisions of this
subsection B shall inure to the benefit of any such owner, Lessor or mortgagee,
shall apply notwithstanding that, as a matter of law, this Lease may terminate
upon the termination of any such Superior Lease, and shall be self-operative
upon any such demand, and no further instrument shall be required to give effect
to said provisions. Lessee, however, upon demand of any such owner, Lessor or
mortgagee, agrees to execute, from time to time, instruments in confirmation of
the foregoing provisions of this subsection B, satisfactory to any such owner,
Lessor or mortgagee, acknowledging such attornment and setting forth the terms
and conditions of its tenancy. Nothing contained in this subsection B shall be
construed to impair any right otherwise exercisable by any such owner, Lessor or
mortgagee.
C. From time to time, within seven days next following Lessor's
request, Lessee shall deliver to Lessor a written statement executed and
acknowledged by Lessee, in form satisfactory to Lessor,
(1) stating that this lease is then in full force and effect
and has not been modified (or if modified, setting forth all modifications),
(2) setting forth the date to which the Rent, additional rent
and other charges hereunder have been paid,
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(3) stating whether or not, to the best knowledge of Lessee,
Lessor is in default under this Lease, and, if Lessor is in default, setting
forth the specific nature of all such defaults,
(4) certifying that Lessor has completed construction of the
Premises,
(5) certifying that Lessee has accepted possession of the
Premises, and
(6) as to any other matters requested by Lessor, Lessee
acknowledges that any statement delivered pursuant to this sub-section C may be
relied upon by any purchaser or owner of the Zone, or Lessor's interest in the
Zone or any Superior Lease, or by any mortgage of a Mortgage, or by any assignee
of any mortgagee of a mortgage, or any Lessor under any Superior Lease.
D. This Lease shall not be recorded without the prior written consent
of Lessor. Upon the request of Lessor, Lessee agrees to execute a short form of
this Lease which may be recorded in Lessor's sole discretion.
E. If any lending institution with which Lessor has negotiated or may
negotiate interim or long-term financing for the Zone does not approve the
financial and credit rating of Lessee for purposes of such financing, or if any
such lending institution shall require a change or changes in this Lease as a
condition of its approval of this Lease for such financing, and if within 30
days after notice from lessor:
(1) Lessee fails or refuses to supply or execute assurances
and/or guarantees which are stated by Lessor as indicated to be necessary to
secure the approval of Lessee's financial and credit rating by any such lending
institution, or
(2) if Lessee fails or refuses to execute with Lessor the
amendment or amendments to this Lease accomplishing the change or changes which
are stated by Lessor to be needed in connection with approval of this Lease for
purposes of such financing, Lessor shall have the right to cancel this Lease at
any time prior to the commencement of Lessee's work, as described in Article 6
hereof. In the event of cancellation by Lessor hereunder, this Lease shall be
and become null and void with no further liability or obligation on the part of
either party hereto.
ARTICLE 22 - HOLDING OVER
If Lessee remains in possession of all or any part of the Premises
after the expiration of the term o9f this Lease or any renewal thereof, the
Lessee shall be deemed a Lessee of the Premises at sufferance, subject to all of
the terms and provisions hereof, except only as to the terms of this Lease;
provided, that the rent payable during such period as Lessee continues to hold
the Premises or any part thereof shall be at twice the highest annual rate of
Base Rent and additional rent theretofore paid under this Lease.
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ARTICLE 23 - QUIET ENJOYMENT
If Lessee pays the Base Rent and other charges herein provided and
performs all of the covenants and agreements herein stipulated to be performed
on the Lessee's part, Lessee shall, at all times during said term, have the
peaceable and quiet enjoyment and possession of the Premises without any manner
of hindrance from Lessor or any person lawfully claiming through Lessor, except
as to such portion of the Premises as shall be taken under the power of eminent
domain.
ARTICLE 24 - SECURITY AGREEMENT
A. For valuable consideration and as security for the payment of rent
and other charges reserved hereunder whether due or otherwise hereunder, Lessee
hereby grants to Lessor a first security interest in the following described
collateral: (1) All inventory in the Premises during the term of this Lease; (2)
All equipment and other personalty placed in the Premises during the term of
this Lease; and (3) All proceeds of said inventory, equipment and personalty.
B. Upon the happening of any of the following events or conditions,
namely: (1) Default in the payment of rent or performance of any of the
obligations or of any covenant or liability contained or referred to herein; (2)
Making of any levy, seizure or attachment of the collateral; and (3) Death,
dissolution, termination of existence, insolvency, business failure, appointment
of a receiver, assignment for the benefit or creditors by or the commencement of
any proceeding under any bankruptcy or insolvency laws by or against Lessee or
any guarantor or surety for Lessee; thereupon, or any time thereafter (such
default not having previously been cured) Lessor shall then have all the
remedies of a secured party under the laws of the State of Florida, including
without limitation thereto, the right to take possession of the collateral and
for that purpose Lessor may enter upon the Premises and remove the same
therefrom. Lessor will give Lessee at least 10 days' prior written notice of any
public sale thereof or of the date after which any private sale or any other
intended disposition is to be made, and at any such sale the Lessor may purchase
the collateral.
C. This security agreement and the first security interest and
collateral created hereby shall be terminated when all of the rent and other
charges becoming due during the term of this Lease or extension thereof have
been paid in full.
ARTICLE 25 - REIMBURSEMENT
All terms, covenants and conditions herein contained, to be performed
by Lessee, shall be performed at its sole expense and if Lessor shall pay any
sum of money or do any act which requires the payment of money, by reason of the
failure, neglect or refusal of Lessee to perform
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such term, covenant or condition, the sum of money so paid by Lessor shall be
payable by Lessee to Lessor with the next succeeding installment of rent.
ARTICLE 26 - TITLES OF ARTICLES
The titles of the articles throughout this Lease are for convenience
and reference only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this instrument.
ARTICLE 27 - NOTICES
Any notices, request, demand, approval, consent or other communication
which Lessor or Lessee may be required to give to the other Party shall be in
writing and shall be mailed to the other Party at the address specified on page
1 hereof, or to the Premises if such communication is to the Lessee, or to such
other address as either Party shall have designated to the other. The time of
the rendition of notice to Lessee by Lessor shall be hen same is mailed, postage
prepaid. The time of the rendition of notice to the Lessor shall be upon receipt
by Lessor.
ARTICLE 28 - DEFINITIONS
1) "Zone" shall mean the real estate located in Dade County, Florida, described
in Exhibit "D" which is attached hereto and incorporated herein by reference,
and all improvements thereon.
2) "Floor Area" shall mean the actual number of square feet of floor space of
all floors, basements and mezzanines of the Premises without deduction or
exclusion for any space occupied or used by columns, stairs or other interior
construction or equipment within the exterior faces of exterior walls, except
party walls (walls shared by separate tenants), in which case the center of the
wall in questions shall be used instead of the exterior face thereof.
3) As used in this Lease and when required by context, each number (singular or
plural) shall include all numbers, and each gender shall include all genders;
and unless the context otherwise requires, the word "person" shall include
"corporation, firm or association".
4) "Lessor" so far as covenants or obligations on the part of Lessor are
concerned, shall be limited to mean and include only the owner (or Lessee of the
ground or underlying lease of which this Lease is a sublease) for the time being
of the Zone, buildings and the land on which they stand. If the Zone or the
ground or underlying lease, be sold or transferred, the seller (or assignor of
the ground or underlying lease of ;which this lease is a sublease) shall be
automatically and entirely released of all covenants and obligations of this
Lese from and after the date of such conveyance or transfer, provided the
purchaser has assumed and agreed to carry out all covenants and obligations of
Lessor hereunder, it being intended hereby that the
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covenants and obligations contained in this Lease to be performed on the part of
the Lessor shall be binding upon Lessor, its successors and assigns, only during
their respective successive periods of ownership. Notwithstanding anything to
the contrary provided in this Lease, it is specifically understood and agreed by
Lessor and Lessee that there shall be absolutely no personal liability on the
part of the Lessor or its successor with respect to any of the terms, conditions
and covenants of this Lease, and that Lessee shall look solely to the interest
of Lessor in the Zone for the satisfaction of each and every remedy of Lessee in
the event of any breach by Lessor of any terms, conditions and covenants of this
Lease to be observed or performed by Lessor.
5) "Term" shall mean the period specified under article 2 of this Lease.
ARTICLE 29 - INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Lease or the application thereof to
any person or circumstance shall to any extent, be invalid or unenforceable, the
remainder of this Lease or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lese shall be valid and be enforced to the fullest extent permitted by law.
ARTICLE 30 - PROVISIONS BINDING
A. the submission of this document for examination and negotiation does
not constitute and offer to lease, or a reservation for or option for the
Premises. This document shall become effective and binding only upon the
execution and delivery hereof by both Lessor and Lessee.
B. Except as herein otherwise expressly provided, the terms and
provisions hereof shall be binding upon and shall inure to the benefit of the
heirs, executors, administrators, successors and permitted assigns,
respectively, of the Lessor and the Lessee. Each term and each provision of this
Lease shall be construed to be both an independent covenant and a condition. The
reference contained to successors and assigns of Lessee is not intended to
constitute a consent to assignment by Lessee, but has reference only to those
instances in which Lessor may have given written consent to a particular
assignment.
ARTICLE 31 - RELATIONSHIP OF PARTIES
Nothing contained in this Lease shall be deemed or construed by the
Parties hereto or by any third party to create the relationship of principal and
agent or of partnership or of joint venture or of any association whatsoever
between Lessor and Lessee, it being expressly understood and agreed that neither
the computation of rent nor any other provisions contained in
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this lease nor any act or acts of the Parties hereto shall be deemed to create
any relationship between Lessor and Lessee other than the relationship of
landlord and tenant.
ARTICLE 32 - NO WAIVER
The failure of Lessor to insist upon the strict performance of any
provision of this Lease, or the failure of Lessor to exercise any right, option
or remedy hereby reserved shall not be construed as a waiver for the future of
any such provision, right, option or remedy or as a waiver of a subsequent
breach thereof. The consent or approval by Lessor of any act by Lessee requiring
Lessor's consent or approvals shall not be construed to waive or render
unnecessary the requirement for Lessor's consent or approval of any subsequent
similar act by Lessee. The receipt by Lessor of rent with knowledge of a breach
of any provision of this Lease shall not be deemed to have been waived unless
such waiver shall be in writing signed by Lessor. No payment by Lessee or
receipt by Lessor of a lesser amount than the rents and/or other charges hereby
reserved shall be deemed to be other than on account of the earliest rents
and/or charges then unpaid, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment by Lessee be deemed in accord
and satisfaction and Lessor may accept such check or payment without prejudice
to lessor's right to recover the balance of such rents and/or other charges due
or Lessor may pursue any other remedy in this Lease provided, and no waiver by
lessor in favor of any other Lessee or occupant of the Zone shall constitute a
waiver in favor of the lessee herein.
ARICLE 33 - BROKERAGE
Lessee covenants, warrants and represents to Lessor that there were no
brokers instrumental in consummating this Lease and that no conversation or
prior negotiations were had by Lessee with any other broker concerning the
renting of the Premises. Lessee agrees to protect, indemnify, save and keep
harmless the Lessor against and from all claims, loss, cost, damage or expense,
including attorneys' fees, arising out of or from any claims for brokerage
commissions or finders fees resulting from any conversation or negotiations had
by Lessee with any broker or any other person.
Lessor shall be excused for the period or periods of delay in the
opening of the Zone or in the performance of any of Lessor" obligations,
hereunder when delayed, hindered or prevented from so doing by any cause or
causes beyond Lessor's control, which shall include, without limitation, all
delays caused by Lessee, labor disputes, riots, civil commotion or insurrection,
war or war-like operations, invasion, rebellion, military or usurped power,
sabotage, governmental restrictions, regulations or controls, inability o obtain
any materials, services or financing, fire, unusual or extreme weather
conditions or other casualties, or acts of God. If as a result of any such
events Lessor shall be unable to exercise any right or option within any time
limit provided therefor in this Lease, such time limit shall be deemed extended
for a period equal to the duration of such event.
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ARTICLE 34 - FORCE MAJEURE
Lessor shall be excused for the period or periods of delay in the
opening of the Zone or in the performance of any of Lessor's obligations,
hereunder when delayed, hindered or prevented from so doing by any cause or
causes beyond Lessor's control, which shall include, without limitation, all
delays caused by Lessee, labor disputes, riots, civil commotion or insurrection,
war or war-like operation, invasion, rebellion, military or usurped power,
sabotage, governmental restrictions, regulations or controls, inability o obtain
any materials, services or financing, fire, unusual or extreme weather
conditions or other casualties, or acts of God. If as a result of any such
events Lessor shall be unable to exercise any right or option within any time
limit provided therefor in this Lease, such time limit shall be deemed extended
for a period equal to the duration of such event.
ARTICLE 35 - RADON GAS
Pursuant to Section 404.056(8) of the Florida Statutes, Lessor is
required to notify Lessee of the following:
Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines
have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained
from your county public health unit.
ARTICLE 36 - CHOICE OF LAW
This Agreement is made pursuant to, and is and shall be subject and
interpreted according to the laws of the State of Florida.
ARTICLE 37 - LITIGATION & ATTORNEYS FEES
Any litigation between the parties arising out of this Lease shall be
in the courts of the State of Florida in Miami-Dade County, Florida. In the
event of any such litigation the prevailing party shall be entitled to recover
all costs incurred, such costs to include without limitation reasonable
attorney's fees, including attorney's fees on appeal and in any bankruptcy
proceedings, ad this provision shall survive the termination of this lease
agreement.
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ARTICLE 38 - HAZARDOUS MATERIALS
Lessee for itself, its employees and agents, agrees that it shall
strictly comply with all statutes, laws, ordinances, rules, regulations, and
precautions now or hereafter mandated by any federal, state, local or other
governmental agency with respect to Lessee's use, generation, storage, or
disposal of hazardous, toxic, or radioactive materials (collectively "Hazardous
Materials") at the Premises. Lessee does expressly covenants to defend, hold
harmless and indemnify Lessor of and from all liability, directly of indirectly
arising out of the use, generation, storage, or disposal of hazardous materials
in violation of applicable environmental laws, statues or regulations by Lessee
or its agents, employees, officers or invitees, including, without limitation
the cost of any required or necessary repair, cleanup or detoxification and the
preparation of any closure or other required plans. Lessees obligations pursuant
to the foregoing indemnity shall survive the termination of this Lease. Lessee
shall provide Lessor with reasonable access, upon reasonable notice, to Lessee's
records concerning the use and storage of such materials at the Premises.
As required by Law, Lessor hereby notifies the Lessee of Section
24-12.1 of the code of Metropolitan Miami Dade County which deals with the
protection of the potable water supply wells in the area of the Miami Free Zone
which is located within the cone of influence of the "Northwest Wellfield."
Further information is available from the Department of Environmental Resources
Management located at 33 S.W. 2nd Avenue, Miami, Florida 33130 (Tel:
305-372-6789).
ARTICLE 39 - TRANSLATIONS AND SUMMARIES
No summary or translation of this Lease shall be binding on Lessor, and
only the terms of this Lease shall be binding on Lessor and Lessee.
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IN WITNESS WHEREOF, the respective parties have hereunto set their
hands and seals and caused these presents to be executed as of the day and year
first written above.
Signed, sealed and delivered in the presence of:
Lessor:
MIAMI FREE ZONE CORPORATION
(Witness)_______________________
(Witness)_______________________ By: /s/ German Leiva
----------------------------------------
German Leiva, President
(Witness)_______________________ Lessee:
TAKE TO AUCTION.COM, INC.
(Witness)_______________________ By: /s/ Albert Friedman
----------------------------------------
Albert Friedman, President and
Chief Executive Officer
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STATE OF FLORIDA )
) SS
COUNTY OF DADE )
On this 4th day of August, 1999, before me personally appeared German
Leiva who being by me duly sworn, did depose and say that he is the President of
Miami Free Zone Corporation, the Florida Corporation described in and which
executed the foregoing instrument, as Lessor; and that he signed his name
thereto in said capacity.
/s/ Gabriela Zangroniz
---------------------------------
Notary Public
State of Florida at Large
STATE OF FLORIDA )
) SS
COUNTY OF DADE )
On this 4th day of August, 1999, before me personally appeared Mr.
Albert Friedman to me known, who being by me duly sworn did depose and say that
he is the president and Chief Executive Officer of Take to Auction.Com, Inc.,
the corporation described in and which executed the foregoing instrument, as
Lessee; and that he signed his name thereto in said capacity.
/s/ Gabriela Zangroniz
---------------------------------
Notary Public
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