Florida-Fort Myers-12901 McGregor Boulevard Lease - Bridge Plaza Partnership and The Furst Group Inc.
LEASE AGREEMENT
THIS LEASE executed in 3 counterparts (with each counterpart being deemed
to be an original document) and made and entered into as of the 4th day of
November 1998, (hereinafter called "Lease Date"), by and between BRIDGE PLAZA
PARTNERSHIP (hereinafter called "Landlord"), and THE FURST GROUP, INC.
(hereinafter called "Tenant"); Landlord and Tenant having the following notice
address on the date of this Lease:
Landlord: BRIDGE PLAZA PARTNERSHIP
2340 Periwinkle Way, Suite J-3
Sanibel Island, Florida 33957
(941) 395-1111
Tenant: THE FURST GROUP, INC.
Furst Commerce Center
459 Oakshade Road
Shamong, NJ 08088
(941) 481-2199
FUNDAMENTAL LEASE PROVISIONS
----------------------------
Certain Fundamental Lease Provisions are set forth in this Section and
represent the agreement of the parties hereto, subject to further definition and
elaboration as set forth in the Lease Agreement:
(a) Tenant's Trade Name: THE FURST GROUP
(b) Lease Terms:
Commencement Date: February 1, 19999
Lease Expiration Date: January 31, 2002
(c) Premises: 12901 McGregor Boulevard, Unit 1A,
Fort Meyers, Florida
(d) Area of the Premises: 12,420 - 11, 787 square feet of air
conditioned area plus 633 square
feet covered area square feet
(e) Minimum Rent: $95,013.00 per year - year 1
$7,917.75 per month - year 1
An amount equal to the first year's
annual Minimum Rent
multiplied by 104% - year 2
An amount equal to the first year's
monthly Minimum Rent
multiplied by 104% - year 2
An amount equal to the second
year's annual Minimum Rent
multiplied by 104% - year 3
An amount equal to the second
year's monthly Minimum Rent
multiplied by 104% - year 3
(f) Additional Rent:
Common Area Costs and Expenses: See 2.02
Tax Impositions: See 2.02
Insurance Costs: See 2.02
(g) Security Deposit: $9,500.00
(h) Permitted Use: Telecommunication Services
(i) Address of Shopping Center: 12901 McGregor Boulevard,
Fort Meyers, FL
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INDEX
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ARTICLE I - TERM: PAGE
----
1.01 Term of This Lease 4
ARTICLE II - TENANT PAYMENT:
---------------
2.01 Minimum Rent 4
2.02 Cost and Expenses, Tax Impositions, and
Insurance Costs 4
2.03 Utilities 5
2.04 Amounts due Upon Termination 6
2.05 Security Deposit 6
ARTICLE III - TENANT COVENANT:
----------------
3.01 Use 6
3.02 Painting and Decorating 7
3.03 Signs and Displays 7
3.04 Rubbish Removal 7
3.05 Passageways 7
3.06 General Insurance Requirements 7
3.07 Plate Glass 7
3.08 Insurance Restrictions 7
3.09 Indemnification of Landlord 8
3.10 Alterations of Tenant 8
3.11 Repairs and Maintenance by Tenant 9
3.12 Transfers, Assignment and Subletting 9
3.13 Voting Control 9
ARTICLE IV - DEFAULTS BY TENANT:
--------------------
4.01 Events of Default 9
4.02 Remedies Upon Default 10
4.03 Damages Upon Termination 11
4.04 Landlord's Self Help 11
ARTICLE V - DEFAULTS BY TENANT:
--------------------
5.01 Subordination of Lease 11
5.02 Tenant's Attornment 11
5.03 Instruments to Carry Out Intent 11
ARTICLE VI - ESTOPPEL CERTIFICATE:
----------------------
6.01 Tenant's Agreement to Deliver 12
6.02 Failure of Tenant to Provide 12
ARTICLE VII - MECHANIC'S LIENS:
-----------------
7.01 No Liens Permitted 12
7.02 Prompt Payment 12
7.03 Posting of Notices 12
ARTICE VIII - COMMON AREAS:
-------------
8.01 Use of Common Areas 12
8.02 Alteration of Common Areas 12
8.03 Employee Parking 13
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ARTICLE IX - LANDLORD OBLIGATIONS:
---------------------
9.01 Repairs by Landlord 13
9.02 Damage or Destruction 13
9.03 Condemnation 13
9.04 Quiet Enjoyment and Transfer of Tenants 13
ARTICLE X - ADDITIONAL COVENANTS:
---------------------
10.01 Right of Entry 14
10.02 Surrender of Premises 14
10.03 Late Charges 14
10.04 All Notices in Writing 14
ARTICLE XI - MISCELLANEOUS:
--------------
11.01 Attorney's Fees 14
11.02 Time of Essense 14
11.03 Holding Over 15
11.04 Waiver 15
11.05 Successors and Assigns 15
11.06 Headings, Captions and References 15
11.07 Landlord and Tenant Relationship 15
11.08 No estate by Tenant 15
11.09 Delay in Delivery of Premises 15
11.10 Entire Agreement and No Offer 16
11.11 Representations 16
11.12 Jurisdiction 16
11.13 Landlord's Liability 16
11.14 Execution by Agent 16
11.15 Corporate Tenants 16
11.16 Accord and Satisfactions 16
11.17 Recording 16
11.18 Radon Gas 16
11.19 Hazardous or Toxic Materials 16
Exhibit A Rules and Regulations
Exhibit B Additional Lease Provisions
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THIS LEASE AGREEMENT made and entered into as of the Lease Date by and between
Landlord and Tenant.
In consideration of the rents hereinafter reserved and in consideration of
the mutual covenants and agreements hereinafter contained, and the sum of TEN AN
NO/100 DOLLARS ($10.00) and other valuable consideration each to the other paid,
the receipt and adequacy whereof are hereby acknowledged, Landlord hereby leases
and demises unto Tenant, and Tenant hereby leases from Landlord, those certain
premises (hereinafter referred to as "Premises") consisting of the store space
having a rentable area of approximately the Area of the Premises defined in the
Fundamental lease Provisions. The Area of the Premises has been calculated on
the basis of the rentable area attributable to the Premises and is hereby
stipulated for all purposes to be the number of square feet stated in the
definition of the Area of premises, whether the same should be more or less as a
result of variations arising out of actual construction and completion of the
Premises for occupancy or otherwise. The Premises is located within the Shopping
Center composed of those buildings and improvements now or hereafter constructed
on that parcel of land at the address of the Shopping Center and/or on any
additional land acquired by Landlord and made a part of the Shopping Center
which land and additional land is hereinafter called the "Land".
The Fundamental Lease Provisions appearing on the face page of this Lease
are an integral part of this Lease and are incorporated herein by reference.
Each of the Fundamental Lease Provisions shall be deemed a definition of an
essential term of this Lease and whenever any such term shall appear in this
Lease, it shall be deemed to have the meaning therefore set forth in the
Fundamental Lease Provisions and shall be limited by the provisions of this
Lease applicable thereto.
ARTICLE I
TERM
----
1.01 Term of this Lease. The term of this Lease (sometimes herein called
the "Term") shall mean the period starting on the first day of the Tenant
occupying the Premises or the Commencement Date as set forth in clause (b) on
page 1, whichever is earlier, and subject to the other terms and conditions of
this Lease, ending at 12:00 o'clock midnight on the Lease Expiration Date set
forth in clause (b) on page 1. "Lease Year" means each successive twelve (12)
month period from January 1, and the next succeeding December 31; and if the
Term ends on other than a December 31, it also means the period beginning on the
last January 1 of the Term and ending on the last day of the Term. "Rent Year"
means either a Lease Year or a Partial lease Year, as the case may be.
ARTICLE II
TENANT PAYMENTS
---------------
Tenant covenants and agrees to pay Landlord, as rental for the Premises,
rent in accordance with the provisions set forth hereinbelow. Tenant further
covenants and agrees to pay, as hereinafter set forth, common area costs and
expenses, tax impositions, insurance costs, late charges and other charges
required to be paid by Tenant by the provisions of this Lease, all of which are
hereinafter sometimes collectively referred to as "costs" and shall not be
deemed a part of the rents. Such costs shall, for the purposes of the default
provisions hereof, be deemed additional rent due from Tenant and any default in
the prompt payment thereof shall entitle Landlord to exercise any or all of the
remedies provided for herein and at law or at equity, on account of Tenant's
failure to pay rent. It is further agreed that such costs shall not be deemed
rent as that term is construed relative to government wage, price and rent
control or analogous governmental actions affecting the amount of rent which
Landlord may charge Tenant. For the purposes of this Lease, the term Tenant's
Proportionate Share shall mean (for each calendar year during the term of this
Lease during which Tenant is required to make a specified payment of common area
costs and expenses and insurance costs) the total costs of said costs for the
Shopping Center multiplied by a fraction the numerator of which is the Area of
the Premises and the denominator of which is the total square footage of the
Shopping Center.
2.01 Minimum Rent. Tenant shall pay to Landlord without notice or demand
during the Term, at the Address of Landlord or at such other place as Landlord
may direct from time to time by notice to Tenant, the Annual Minimum Rent in
equal monthly installments of the Monthly Minimum Rent as set forth in the
Fundamental Lease Provisions payable in advance on or before the first day of
each calendar month during the Term, without abatement, offset or deduction of
any kind or for any reason. Installments of Minimum Rents due for any period
less than one (1) calendar month for which Tenant is obligated to pay rent shall
be prorated on a per diem basis with respect to such fractional calendar month.
2.02 Common Area Costs and Expenses Tax Impositions, and Insurance Costs.
(a) For each calendar year during the Term of this Lease, Tenant shall pay to
Landlord, as additional rent, Tenant's Proportionate Share of common area costs
and expenses, tax impositions and insurance costs paid or incurred by Landlord
and which shall be charged to the operation, maintenance and management of the
Shopping Center and its common
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areas. Tenant's Proportionate Share of each such item shall be paid in advance
whether or not actually incurred by Landlord in monthly installments estimated
by Landlord and subsequently adjusted as provided below for any deficiency (or
excess) resulting from actual costs exceeding (or falling short of) estimated
payments. Landlord may revise its estimate and may adjust such monthly payment
at the end of any calendar month. The first such installment shall be due and
payable by Tenant on the Rent Commencement Date (prorated for the remaining
number of day in the calendar year); and subsequent installments shall
thereafter be due and payable on the first (1st) day of each successive calendar
month during the Term. After the end of each calendar year, Landlord shall
deliver to Tenant a statement certifying the actual costs of each such item for
the estimated period just ended and a statement estimating the costs of each
such item for the calendar year thereafter. On or before the due date for the
installment of Minimum Rent next due following receipt of each such statement,
Tenant shall pay any deficiency resulting from the actual costs exceeding
estimated payments for the period just ended. Landlord shall credit any excess
payment made by Tenant for the preceding period against future payments of
Tenant's Proportionate Share of each such item. If the Term shall end on a date
other than the last day of a month, the charges to Tenant with respect to each
such item for that month shall be prorated on a daily basis.
(b) The term "common area costs and expenses" shall mean and include all
amounts paid or incurred by Landlord for operation, managing and maintaining the
common areas of the Shopping Center in a manner deemed by Landlord reasonable
and appropriate and for the best interest of the Shopping Center, including,
without limitation, all costs and expenses of : (i) operating, repairing,
maintaining, lighting, and cleaning the common areas of the Shopping Center;
(ii) paying all personnel employed on a part time basis or full time basis in
the operation, maintenance or repair of the common areas of the Shopping Center;
(iii) removing rubbish and debris from the common areas of the Shopping Center,
(iv) inspection, maintenance, operation of machinery and equipment used in the
operation and maintenance of the common area facilities; (v) all paved parking
and other areas serving the Shopping Center; and all walkways, landscaping, and
lighting facilities; (vi) all utilities used in connection with the operation,
repair and maintenance of common area facilities; (vii) leasing or renting
equipment used in connection with the operation repair and maintenance of common
area facilities. It is acknowledged and agreed that for the purposes of this
Lease, the "common areas" of the Shopping Cneter shall mean exteriors and all
utilities underground or other wise forming part of the Shopping Center and all
paved parking areas, driveways, sidewalks, passages, loading docks and all other
areas not specifically designated to be under the exclusive control of any
single tenant.
(c) The term "tax impositions" shall mean and include all assessments or
charges paid or incurred by Landlord for public betterments or improvements,
fire or water line taxes, ad valorem real estate and/or personal property taxes,
or any other tax on rents or real estate as such (other than income taxes
thereon) from time to time directly or indirectly assessed or imposed upon the
Shopping Center and/or the Land upon which it is situated and/or the property,
furniture, fixtures, and equipment used in the operation, maintenance or repair
of the Shopping Center and its common areas, including all costs and fees paid
or incurred by Landlord in contesting, or in negotiating with the public
authorities as to the amount of such assessments, charges or taxes or the basis
upon which the same shall be assessed. The foregoing provisions to the contrary
notwithstanding, it is understood and agreed that any and all assessments or
charges for the public betterments or improvements, ad valorem real estate taxes
or other taxes on business property as such from time to time made to the
Premises by Tenant or under its direction or with respect to any property of
Tenant therein shall be born and paid entirely by Tenant and if any of said
items of any portion thereof shall be paid by Landlord, Tenant shall reimburse
Landlord for the same immediately upon receipt by Tenant of written demand
therefor from Landlord.
(d) The term "insurance costs" shall mean and include all amounts paid or
incurred by Landlord for all insurance which may be maintained by Landlord from
time to time with respect to the Shopping Center, the common areas thereof and
the management, operation and maintenance thereof, including, but not limited
to, all risk fire and extended coverage insurance, rental loss insurance,
general liability insurance, automobile insurance, workmen's compensation
insurance, insurance against liability for defamation and claims for false
arrest, and plate glass insurance.
(e) Notwithstanding the language referenced in Article 2.02 (a), (b), (c),
an (d) regarding common area costs and expenses, tax impositions, and insurance
costs to be paid by the Tenant, the amount the Tenant shall pay to the Landlord
as Tenant's additional rent for common area costs and expenses, tax impositions,
(excluding tax on rent), and insurance costs shall never be less than an annual
sum of $17, 680.50 for year 1 of the Lease and said minimum amount shall
increase each year thereafter 4% from the previous year.
2.03 Utilities (a) Tenant shall promptly pay for all utilities and other
services (including, but not limited to water, sewer service charges, garbage or
trash removal, fuels, including natural gas, and electricity, including
electricity for any heating in the Premises) furnished to and/or used in or at
the
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Premises for any purpose. Landlord may, if it so elects, furnish one or more of
said utility services to Tenant, provided that furnishing thereof by Landlord
is not prohibited by law, rule or regulation of such utility or of any
governmental agency having jurisdiction with respect thereto, and, in such
event, Tenant shall purchase the use of such service as it is tendered and shall
pay on demand as additional rent the rates established therefor by Landlord,
which rates shall not exceed the rates which would have been charged for the
same service if furnished by the appropriate local utility company. Landlord
may at any time discontinue the furnishing of any one or more of such utility
services without obligation to Tenant other than to permit Tenant to connect the
Premises to the public utility, if any, furnish such discontinued service.
(b) Landlord shall not be liable for any interruption or curtailment
whatsoever in the furnishing of utility services or other services to the
Premises whether or not the same are furnished by Landlord, which is due to
fire, accidents, strikes, acts of God or other casualties, conditions or causes
beyond Landlord's control or which is necessary or proper in order to make
alterations, improvements or repairs. Landlord reserves, and shall at all times
have, the right to cut off and discontinue on ten (10) days written notice to
Tenant all utility services inn the event Tenant has failed to pay amounts due
from Tenant to landlord under any provision of this Lease and fails to cure such
default within said ten (10) day notice period.
2.04 Amounts Due Upon Termination. Notwithstanding any expiration or
termination of this Lease (except in the case of cancellation by mutual
agreement) Tenant's obligation to pay minimum Rent, Tenant's Proportionate Share
of all common area costs and expenses, insurance costs and utility charges under
this Lease shall continue and shall cover all periods up to the Lease Expiration
Date. Tenant's obligation to pay any and all such amounts under this Lease and
Landlord's and Tenant's obligations to make the adjustments referred to above
shall survive any expiration or termination of this Lease.
2.05 Security Deposit. Tenant has concurrently with the execution of this
Lease, deposited with the Landlord the sum set forth for the Security Deposit in
the Fundamental Lease Provisions as security for the full and faithful
performance of each and every provision of this Lease to be performed by Tenant.
If Tenant defaults with respect to any provision of this Lease by it to be
performed, Landlord may, in addition to any other remedy it may have, use, apply
or retain all or any part of the Security Deposit for the payment of any rent or
any other sum in default, or for the payment of any other amount which Landlord
may spend or become obligated to spend by reason of Tenant's default or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any proportion of the Security Deposit is so used
or applied, Tenant shall, within five (5) days after written demand therefor,
deposit cash with Landlord in an amount sufficient to restore the Security
Deposit to its original amount. Landlord shall not be required to keep the
Security Deposit separate from its general funds and Tenant shall not be
entitled to interest on such deposit. If Tenant shall fully and faithfully
perform each provision of this Lease to be performed by it, the Security Deposit
or any balance thereof shall be returned to Tenant only upon the expiration of
the full stated term of this Lease and after payment by Tenant of all sums due
or to become due Landlord under any provisions of this Lease, it being the
intention of the parties that such sum of money shall secure Landlord not only
as to default by Tenant prior to termination but as to any deficiency in the
sums to be paid by Tenant to Landlord for the full stated term hereof. In the
even of a sale, lease or other transfer of the Shopping Center, Landlord shall
have the right to transfer the Security Deposit to the vendee, lessee or
transferee, and Landlord shall thereupon be released form all liability for the
return of such Security Deposit; and this provision shall apply to every
transfer or assignment made of the Security Deposit to a new landlord. The
Security Deposit shall not be assigned or encumbered by Tenant without the
written consent of Landlord, and any such assignment or encumbrance shall be
void.
ARTICLE III
TENANT COVENANTS
----------------
3.01 Use. Tenant shall not use, occupy or operate the whole or any part of
the Premises for any purpose other than that set forth under Permitted Use in
the Fundamental Lease Provisions; nor shall Tenant permit the same to be used
for any other purpose. Tenant shall further use the Premises in accordance with
the Rules and Regulations from time to time adopted by Landlord and in such
manner as will not interfere with or infringe on, the rights of other tenants in
the Shopping Center. A copy of such Rules and Regulations presently in effect
are attached hereto as Exhibit A and by this reference made a part hereof.
Tenant shall not use or occupy the Premises in violation of any law, ordinance,
regulation or other directives of any governmental authority having jurisdiction
hereof, not permit a nuisance to be created or maintained therein. Tenant shall
not maintain or permit any coin operated or vending machines within or about the
Premises without the prior written consent of Landlord. During the term hereof,
Tenant shall be in continuous use, occupancy and operation of the entire
Premises, shall conduct business in the Premises for the purposes herein stated
and shall not vacate or abandon the Premises or allow the same to appear vacated
or abandoned. Tenant shall conduct its business in the Premises under the trade
name set forth under Tenant's Trade Name in the Fundamental Lease Provisions,
and under no other name or trade name unless first approved in writing by
Landlord. Tenant shall not allow any odor or sound produced or originating in
the Premises to be detectable
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outside the Premises and shall, at its sole expense, exhaust and/or filter all
such odors in such manner that they cannot be detected outside the Premises and
sound proof the wall of the Premises in such manner that such sounds cannot be
heard outside the Premises. Tenant shall not, under any circumstances, conduct
in the Premises of the Shopping Center any auction or bankruptcy sale or fire
sale or going-out-of business sale or any similar liquidation sale, it being
agreed that the same are inconsistent and in conflict with and would be
detrimental to the interest of Landlord and Tenant.
3.02 Painting and Decorating. Tenant shall paint and keep the Premises,
including the storefront thereof, in good repair, but Tenant shall not paint or
change the decorative or architectural treatment of the storefront, the interior
or the exterior of the Premises without Landlord's written consent. Tenant shall
promptly remove, upon order from Landlord, any decoration or architectural
changes which has been applied to, or installed upon, the Premises without
Landlord's written consent or take such other action with reference thereto as
Landlord may direct.
3.03 Signs and Displays. Tenant shall not place or permit to be placed or
maintain any sign, awning advertising matter, decoration, lettering or other
thing of any kind on the interior or the exterior of the Premises or on the
glass of any window or door of the Premises without first obtaining Landlord's
written approval thereof. Tenant shall promptly remove, upon order from
Landlord, any sign, awning, advertising matter or other thing of any kind which
has been applied to, or installed upon, the interior or exterior of the Premises
without Landlord's written consent or take such other action with reference
thereto as Landlord may direct. Tenant shall maintain displays of merchandise in
such a manner as shall be visible from Tenant's storefront and shall take such
other action with respect thereto as Landlord shall direct. Tenant's exterior
sign shall remain lit during such hours of each day as shall be determined from
time to time by written policies of Landlord designed to provide for general
uniformity with respect to the lighting of exterior signs. The Landlord has the
right, but not the obligation to erect a sign advertising Tenant's business on
or immediately adjacent to the Premises. The Tenant shall reimburse the Landlord
for the cost of said sign.
3.04 Rubbish Removal. Tenant, at its own expense, shall keep the Premises
clean, both inside and outside, and shall remove all rubbish, garbage and other
refuse from the Premises and place it in containers which shall be provided and
located by Landlord within the service areas of the Shopping Center.
3.05 Passageways. Tenant shall neither encumber nor obstruct the
passageways adjoining the Premises or in other areas of the Shopping Center, nor
allow the same to be obstructed or encumbered in any manner, including, but not
limited to the use of same for displays, advertising or the sale of merchandise.
3.06 General Insurance Requirement. During the Term, Tenant shall, at its
own cost and expense, carry with companies satisfactory to Landlord,
comprehensive public liability insurance in the joint names of Landlord and
Tenant covering the Premises and the use and occupancy thereof in such amount or
amounts as may be reasonably required by Landlord from time to time but in no
event less than One Million Dollars ($1,000,000.00) combined single limit for
any one occurrence. Tenant shall also keep in force, at its own cost and expense
set forth herein, fire, extended coverage, and water damage insurance insuring
the Tenant's property including, but not limited to, betterments and
improvements made by Tenant, Tenant's inventory, trade fixtures, furnishings and
other personal property whether or not removable by Tenant, in an amount
sufficient to cover the full replacement cost of such property. Tenant hereby
waives any claim or right of action which it may have against Landlord for loss
or damage covered by any insurance required to be maintained by it pursuant to
the terms of this Lease and covenants and agrees that it will obtain a waiver in
writing from the carrier of such insurance releasing such carrier's subrogation
rights as against Landlord. In addition, Tenant shall keep in force workman's
compensation or similar insurance to the extent required by law. Tenant shall
deliver said policies or certificates thereof to Landlord before entering the
Premises; and thereafter thirty (30 days prior to the expiration of any existing
policy of insurance. Should Tenant fail to obtain or maintain in effect the
insurance called for herein or to pay the premiums therefor or to deliver said
policies, certificates or duplicates thereof to Landlord, Tenant shall indemnify
and hold Landlord harmless from all loss or damage incurred by Landlord arising
out of such failure; and Landlord may, at its election and in addition to any
other remedy available to Landlord, procure said insurance and pay the requisite
premiums therefor, in which even Tenant shall pay to Landlord on demand as
additional rent all sums so expended by Landlord. Tenant shall cause each
insurer under the policies required hereunder to agree by endorsement on the
policy issued by it or by independent instrument furnished to Landlord that it
will give Landlord thirty (30) days prior written notice before the policy or
policies in question shall be altered or canceled.
3.07 Plate Glass. Tenant shall replace, at is sole cost and expense, any
and all plate and other glass in or about the Premises damaged or broken from
any cause whatsoever.
3.08 Insurance Restrictions. Tenant shall not, without Landlord's written
consent, use the Premises or the Shopping Center in any manner which will
increase the insurance premium costs or invalidate any insurance policies
carried on the Premises or on other parts of the Shopping Center, nor shall
Tenant do
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or cause to be done or permit or keep on the Premises or in the Shopping Center
anything which will have a like effect upon any such insurance policies. If,
because of anything done, caused to be done, permitted or omitted by Tenant or
its agents, servants, employees (whether or not acting in the scope and course
of their employment), licensees, assignees or undertenants, the premium rate for
any kind of insurance in effect on the Shopping Center or any part thereof shall
be raised, or if Landlord should consent to a use or occupancy of the Premises
by Tenant which shall cause an increase in the premium rate for such insurance,
Tenant shall pay Landlord on demand as additional rent the amount of any such
increase in premium which Landlord shall pay for such insurance. If Landlord
shall demand that Tenant remedy such condition which caused any such increase in
an insurance premium rate, unless Landlord has otherwise consented to the
condition in writing, Tenant shall remedy such condition within five (5) days
after receipt of such demand. All property kept, stored, maintained or permitted
within the Premises by Tenant shall be at Tenant's sole risk.
3.09 Indemnification of Landlord. Tenant agrees to indemnify and defend
Landlord and to save harmless Landlord, and the tenants, licensee, invitees,
agents, servants and employees of Landlord against and from any and all claims
by or on behalf of any person, firm or corporation arising by reason of injury
to person or property occurring on the Premises or by reason of any breach,
violation or nonperformance of any thing growing out of the occupancy or use of
the Premises by Tenant or anyone holding or claiming to hold through or under
Tenant. Tenant agrees to pay Landlord promptly for all damage to the Shopping
Center or the Premises and for all damage to tenants or occupants of the
Shopping Center caused by Tenant's misuse or neglect of the Shopping Center or
of the Premises or of its or their apparatus and appurtenances and Tenant agrees
in any event to reimburse and compensate landlord as additional rent within five
(5) days of rendition of any statement to Tenant by Landlord for expenditures
made by Landlord or for fines sustained or incurred by Landlord due to
nonperformance or noncompliance with or breach or failure to observe any term,
covenant or condition of this Lease upon Tenant's part to be kept, observed,
performed or complied with. Landlord shall not be liable to Tenant for any
damage by or from any act or negligence of any co-tenant or other occupant of
the Shopping Center or by any owner or occupancy of adjoining or contiguous
property. Neither Landlord not its agents shall be liable to Tenant or to any
person, firm or corporation claiming through or under Tenant for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, glass, electricity, water, rain or snow or leaks from any part of the
Shopping Center or from the pipes, appliances or plumbing works or from the
roof, street or sub-surface or from any other place or by dampness or by other
cause of whatever nature, unless caused by or due to the negligence of Landlord,
its agents, servants or employees acting in the course and scope of their
employment. Landlord shall not be liable to Tenant or to any person, firm or
corporation claiming through or under Tenant for any latent defects in the
Premises or in the Shopping Center.
3.10 Alterations by Tenant. (a) Tenant shall make no alterations, additions
or improvements to the Premises or to the exterior, the structure, or the
storefront thereof or the signs thereon without the prior written consent of the
Landlord. Any request by Tenant for Landlord's consent to any such proposed
alterations, additions and improvements shall in each instance be accompanied by
plans and specifications for the proposed work prepared and submitted to
Landlord in accordance with such requirements as Landlord may reasonably impose.
All such alterations, additions and improvements (excluding personal property
and movable business fixtures of Tenant no part of the cost of which shall have
been paid by Landlord) made by, for or at the direction of Tenant, shall become
the property of Landlord and shall remain upon and be surrendered with the
Premises as a part thereof at the expiration or earlier termination of this
Lease or at such time as the Landlord shall re-enter and take possession of the
Premises without terminating this Lease pursuant to the provisions of 4.02
hereof; provided, however, that Landlord shall have the right to require Tenant
to remove any of such alterations, additions, or improvements and to restore the
Premises to the condition in which they were at the commencement of Tenant's
occupancy thereof and such right shall be exercised by Landlord by giving notice
to tenant at any time prior to or not later than thirty (30) days after the
expiration or earlier termination of this Lease. Upon receipt of such notice,
Tenant, at Tenant's sole cost and expense, shall comply with the requirements
specified in such notice on or before the expiration or earlier termination of
the Lease or within five (5) days after receipt of such notice by Tenant,
whichever is later.
(b) Tenant shall make no penetration of any floor, wall, overhead structure
or roof of the Premises or any other part of the Shopping Center without
Landlord's prior written consent to the plans and specifications therefor and
for the repair of each such penetration all in such detail as Landlord may
require. Subject to such consent and to Tenant's compliance with such other
requirements as Landlord may impose, Tenant shall make and repair any such
penetration in strict compliance with the approved plans and specifications and
Landlord's requirements with respect thereto. Landlord shall have no obligation
to consent to any such penetration; but, if it shall so consent, then
notwithstanding such consent, Tenant shall indemnify and hold Landlord harmless
from any damage, loss, cost or expense arising out of the existence of any such
penetration even if the same was made and required in compliance with plans,
specifications and requirements approved by Landlord.
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(c) Landlord shall have no obligation to make any alterations, improvements
or repairs to the Premises other than those, if any, herein specifically
provided for.
3.11 Repairs and Maintenance by Tenant. Tenant shall, at Tenant's own cost
and expense, keep and maintain the Premises and appurtenances thereto (including
replacements as necessary) and every part thereof, in good order and repair
except portions of the Premises to be repaired by Landlord pursuant to Section
9.01 hereof. Tenant shall also keep the heating, cooling, and ventilation,
water, sewer, electrical and sprinkler systems within or serving the Premises in
good order and repair and Tenant shall be liable for any damaged due or
attributable to Tenant's failure to perform or cause such maintenance or repairs
to be performed. Throughout the Term, Tenant shall enter into and maintain, at
its expense, a maintenance contract with the service contractor designated from
time to time by Landlord which contract shall provide for and Tenant shall
through such contractor perform or cause to be performed routine maintenance on
the heating, cooling and ventilating system serving the Premises including, but
not limited to, timely changing of filters (at least quarterly), adjustment and
inspection of air handling mechanisms, control equipment, inspection,
maintenance and performance of necessary lubrication, testing and other such
normal maintenance procedures. In addition, throughout the term of this Lease,
Tenant shall enter into and maintain, at its expense, a pest control contract
with the pest control contractor designated from time to time by Landlord which
contract shall provide for and Tenant shall, through such contractor, perform or
cause to be performed, not less frequently than quarterly, routine pest control
and examination of and preventive treatment for vermin, insects and wood
destroying organisms. All damage or injury to the Premises or the Shopping
Center, or the common areas, caused by any act or negligence of Tenant, it
agent, employees, licensee, invitees or visitors, shall be promptly repaired by
Tenant. Landlord may make such repairs which are not promptly made by Tenant and
charge Tenant for the cost thereof, and Tenant hereby agrees to pay such amount
to Landlord together with interest thereon at the highest legal rate not to
exceed eighteen (18%) percent per annum from the date of such repairs as
additional rent on demand. Tenant shall have no right to make repairs at the
expense of Landlord, or to deduct the cost thereof from the rent due hereunder.
3.12 Transfer, Assignment and Subletting. Tenant shall not sell, pledge or
hypothecated this Lease or sublet the Premises or any part thereof without the
prior written consent of Landlord in each such instance. Consent of Landlord to
one assignment or subletting shall not destroy or operate as a waiver of the
prohibitions contained in this section as to future assignments or subleases and
all such later assignments or subleases shall be made only with Landlord's prior
written consent. In the event any assignment of this Lease or subletting of the
Premises or any part thereof is made by Tenant whether or not the same is
consented to by Landlord, Tenant shall remain liable to Landlord for payment of
all rent herein provided for and for the faithful performance of all of the
covenants and conditions of this Lease by an assignee or sublesee to the same
extent as if the lease had not been assigned or the Premises sublet. If this
Lease shall be assigned or the Premises or any portion thereof sublet by a
rental that exceeds all rentals to be paid to Landlord hereunder, attributable
to the Premises or portion thereof so assigned or sublet, then and in such event
any such excess shall be paid over to Landlord by Tenant. If Tenant shall
request Landlord's consent to an assignment of this Lease or a subletting of the
Premises or any portion thereof, it shall do so by written notice to Landlord
naming the proposed assignee or subtenant, designating any portion of the
Premises to be sublet and setting forth the other terms and conditions of such
proposed assignment or subletting. Thereupon, and at any time thereafter,
Landlord shall, at its election upon notice to Tenant and without limitation,
have the right to refuse to consent to such subletting or assignment; or enter
into a direct lease with such proposed assignee or subtenant; and/or terminate
this Lease as to the portion of the Premises designated in such notice from
Tenant to Landlord, the area of the Premises shall be reduced by the area of the
portion of the Premises so designated by Tenant, the Rent shall each be reduced
in the same proportion as the area of the Premises shall be reduced, and Tenant
shall upon request of Landlord execute an instrument in recordable form prepared
by Landlord documenting the same.
3.13 Voting Control. If Tenant is a corporation and if the entity or person
or persons who own a majority of its voting shares at the time of the execution
hereof cease to own a majority of such shares at any time hereafter, except as a
result of transfers by gift, bequest or inheritance, Tenant shall so notify
Landlord. In the event of such change of ownership, whether or not Tenant has
notified Landlord thereof, Landlord may, at its option, terminate this Lease by
notice to Tenant effective immediately upon giving of such notice. This section
shall not apply if and so long as Tenant is a corporation the outstanding voting
stock of which is listed on a recognized security exchange.
ARTICLE IV
DEFAULTS BY TENANT
------------------
4.01 Events of Default. This lease is made upon the condition that Tenant
shall punctually and faithfully perform all of the covenants, conditions and
agreements by it to be performed as in this Lease set forth. The following shall
each be deemed to be an event of default (each of which is sometimes referred to
herein as an "Event of Default"):
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(i) if Tenant shall fail to pay rent or any other charge or sum to be paid
by Tenant to Landlord when due in accordance with the terms of this Lease, and
such default shall continue for a period of three (3) days;
(ii) if Tenant shall fail to open its business in the premises to the
public within fifteen (15) days of the Lease Commencement Date; or
(iii) if Tenant shall fail to keep or perform or abode by any other
requirement, term, condition covenant or agreement of this Lease or of the Rules
and Regulations now in effect or hereafter adopted or of any notice given Tenant
by Landlord pursuant to the terms of this Lease and such default shall continue
for a period of ten (10) days after notice to Tenant of such default; or
(iv) if Tenant (or, if Tenant is a partnership, if any partner in Tenant)
or any guarantor of this Lease shall file a petition in bankruptcy or take or
consent to any other action seeking any such judicial decree or shall file any
debtor proceeding or a petition for an arrangement or for corporate
reorganization or shall make any assignment for the benefit of its creditors or
shall admit in writing its inability to pay its debts generally as they become
due or in any court of competent jurisdiction shall enter a decree or order
adjudicating it bankrupt or insolvent or if any trustee or receiver for Tenant
or for any substantial part of its property be appointed or if any person shall
file a petition for involuntary bankruptcy against Tenant and if its property be
appointed or if any person shall file a petition for involuntary bankruptcy
against Tenant and such appointment or petition shall not be stayed or vacated
within sixty (60) days of entry thereof or if Tenant's interest hereunder shall
pass to another by operation of law in any other manner; or
(v) if Tenant's interest in this Lease or the Premises shall be subjected
to any attachment, levy or sale pursuant to any order or decree entered against
Tenant in any legal proceeding and such order or decree shall not be vacated
within fifteen (15) days of entry thereof; or
(vi) if Tenant shall vacate or abandon the Premises or shall fail to
strictly comply with its agreement in Section 3.01 above.
(vii) If Tenant fails to timely execute and deliver the instruments
referenced in Article V.
(viii) If Tenant fails to timely execute and deliver the Estoppel
Certificates referenced in Article VI.
4.02 Remedies Upon Default. Landlord may treat any Even of Default as a
breach of this Lease. Landlord's failure to insist upon strict performance of
any covenant, term or condition of this Lease or to exercise any right or remedy
it has herein shall not be deemed a waiver or relinquishment for the future of
such performance, right or remedy. In addition to any and all other rights or
remedies of Landlord in this Lease or by law or in equity provided, Landlord
shall have the following rights and remedies if any Events of Default shall
occur.
(i) Landlord shall have the right to continue this Lease in full force and
effect, and the right to enter the Premises without notice to vacate (any right
to which is hereby waived by Tenant) and terminate Tenant's possession of the
Premises (and Tenant's right to possess same) and relet the same, including
without limitation the right to change any or all locks on the Premises and
remove all persons and all property therefrom, by any suitable action or
proceeding at law, or by force or otherwise, all without being liable for
forcible entry, trespass or other tort and without being liable for any
prosecution therefrom or damages resulting therefrom. Tenant shall be liable
immediately to Landlord for all costs Landlord shall incur in reletting the
Premises and Tenant shall pay to Landlord all rent and other charges due under
this Lease on the date that the same are due, less the rent Landlord receives
from any reletting.
(ii) Landlord, with or without terminating this Lease, may immediately, or
at any time thereafter, re-enter the Premises and cure any Event of Default
and/or correct or repair any condition which shall constitute a failure on
Tenant's part to perform any obligation to be performed by it under this Lease
and Tenant shall pay Landlord on demand any and all costs of expenses paid or
incurred by Landlord in making any such cure, correction or repair.
(iii) No course of dealing between Landlord and Tenant or any delay on the
part of Landlord in exercising any rights it may have under this Lease shall
operate as a waiver of any of the rights of Landlord hereunder nor shall any
waiver of a prior default operate as a waiver of any subsequent default or
defaults and no express waiver shall affect any condition, covenant, rule or
regulation other than the one specified in such waiver and that one only for the
time and in the manner specifically stated.
(iv) In the event of any re-entry of the Premises and/or changing of the
locks on the Premises and/or termination of this Lease by Landlord pursuant to
any of the provisions of this Lease, Tenant hereby waives all claims for damages
which may be caused by such re-entry or changing of locks or termination by
Landlord, and Tenant shall save Landlord harmless from any loss, cost (including
legal expenses and reasonable attorneys'
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fees) or damages suffered by Landlord by reason of such re-entry or changing of
locks or termination and no such re-entry or changing of locks or termination
shall be considered or construed to be a forcible entry.
4.03 Damages Upon Termination. If Landlord elects to terminate this Lease
as provided hereinabove, Landlord may recover from Tenant damages computed with
the following formula in addition to its other remedies:
(i) the worth at the time of judgment of any unpaid rent (an any additional
sum) which has been earned at the time of such termination; plus
(ii) the worth at the time of judgment of the amount by which the unpaid
rent (and any additional sum payable hereunder) which would have been earned
after termination until the time of judgment exceeds the amount of such rental
loss Tenant proves could have been reasonably avoided; plus
(iii) the worth at the time of judgment of the amount by which the unpaid
rent (any additional sum payable hereunder) for the balance of the Term after
the time of judgment exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this lease or which in the ordinary course of things would be likely to
result therefrom including, without limitation, the cost of repairing the
Premises and reasonable attorneys' fees; plus
(v) at Landlord's election, such other amounts in addition to, or in lieu
of, the foregoing as may be permitted from time to time by applicable law.
Damage shall be due and payable from the date of termination. As used in this
Section, the phrase "worth at the time of judgment" is computed by adding to the
past rent due or discounting from unpaid future rent interest at the rate of
eighteen percent (18%) per annum (herein called the "Default Rate").
4.04 Landlord's Self-Help. In addition to Landlord's rights of self-help
set forth elsewhere in this Lease, if Tenant, at any time, fails to perform any
of its obligations under this Lease in a manner reasonably satisfactory to
Landlord, Landlord shall have the right, but not the obligation, upon giving
Tenant at least three (3) days prior written notice of its election to do so
(except in the event of an emergency, in which case no prior notice shall be
required) to perform such obligations on behalf of and for the account of Tenant
and to take all such action to perform such obligations . In such event,
Landlord's costs and expenses incurred with respect thereto shall be paid for by
Tenant as Additional Rent immediately upon demand therefor, with interest
thereupon, at the Default Rate and including the date Landlord performs such
work. The performance by Landlord of any such obligation shall not constitute a
release of waiver of Tenant therefrom.
ARTICLE V
SUBORDINATION AND ATTORNMENT
----------------------------
5.01 Subordination of lease. Tenant does hereby subordinate its right under
this Lease to any lease wherein Landlord is the lessee and to the lien of any or
all mortgages or deeds of trust, regardless of whether such lease, mortgages or
deeds of trust now exist or may hereafter be created with regard to all or any
part of the Shopping Center, and to any and all advances to be made thereunder,
and to the interest thereon, and all modifications, consolidations, renewals,
replacements and extensions thereof, provided the lessor, mortgagees, or
trustees shall agree to recognize this Lease in the event of termination of the
Lease or foreclosure under the mortgages or deeds of trust, if Tenant is not in
default under this Lease. Such subordination shall be effective without the
execution of any further instrument. Tenant also agrees that any lessor,
mortgagee or trustee may elect to have this Lease prior to any lease or lien of
its mortgage or deed of trust, and in the event of such election and upon
notification by such lessor, mortgagee or trustee to Tenant to that effect, this
Lease shall be deemed prior lien to the said lease, mortgage or deed of trust,
whether this Lease is dated prior to, or subsequent to, the date of said lease,
mortgage or deed of trust.
5.02 Tenant's Attornment. In the event of sale or assignment of Landlord's
interest in the Premises or in the event the Landlord mortgages the Premises or
Shopping Center or in the event of any proceeding brought for the foreclosure of
the Shopping Center in the event of the exercise of the power of sale under any
mortgage or deed of trust covering the Premises or in the event of termination
of any lease in a sale-leaseback transaction wherein Landlord is the lessee,
Tenant shall attorn to and recognize such purchaser or assignee or mortgagee as
Landlord under this Lease.
5.03 Instruments to Carry Out Intent. Tenant Agrees that, upon request of
Landlord or any such lessor, mortgagee or trustee, Tenant shall execute and
deliver whatever instruments may be required for such purposes and to carry out
the intent of this Article. In the event Tenant fails to do so within five (5)
days
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after request in writing, Tenant does hereby make, constitute and irrevocably
appoint Landlord as its attorney-in-fact, coupled with an interest, in its name,
place and stead to sign and deliver such instruments as if the same had been
signed and delivered by Tenant.
ARTICLE VI
ESTOPPEL CERTIFICATES
---------------------
6.01 Tenant's Agreement to Deliver. From time to time and within five (5)
days after request in writing therefor from Landlord, Tenant agrees to execute
and deliver to Landlord, or to such other addressee or addressees as Landlord
may designate (and Landlord and any such addressee may rely thereon), a
statement in writing in such form and substance as is satisfactory to Landlord,
certifying to all information as is requested by Landlord.
6.02 Failure of Tenant to Provide. In the event that Tenant fails to
provide an estoppel certificate as required in Section 6.01 above within five
(5) days after Landlord's written request therefor, Tenant does hereby
irrevocably appoint Landlord as attorney-in-fact of Tenant, coupled with an
interest, in Tenant's name, place and stead to sign and deliver the estoppel
certificate as if the same had been signed and delivered by Tenant.
ARTICLE VII
MECHANIC'S LIENS
----------------
7.01 No Liens Permitted. Tenant will not permit to be created, or to remain
undischarged, any lien, encumbrance or charge (arising out of any work done or
materials or supplies furnished by a contractor, subcontractor, mechanic,
laborer or materialmen or any mortgage, conditional sale, security agreement or
chattel mortgage, or otherwise by or for Tenant) which might be or become a lien
or encumbrance or charge upon the Shopping Center or any portion thereof or the
income therefrom. Tenant will not suffer any other matter or thing whereby the
estate, rights and interests of Landlord in the Shopping Center or any portion
thereof might be impaired. If any lien or notice of lien on account of an
alleged debt of Tenant or Tenant's contractor to work on the Premises shall be
filed against the Shopping Center or any portion thereof, Tenant shall, within
ten (10) days after demand from Landlord, cause the same to be discharged for
record by payment, deposit, bond, order of court of competent jurisdiction or
otherwise. If Tenant shall fail to cause such lien or notice of lien to be
discharged within the period aforesaid, then, in addition to any other right or
remedy Landlord may, but shall not be obligated to, discharge such lien by
deposit or by bonding proceedings and in any such event Landlord shall be
entitled, if Landlord so elects, to compel the prosecution of an action for the
foreclosure of such lien by the lienor and to pay the amount of the judgment in
favor of the lienor with interest, costs and allowances. Any amount paid by
Landlord and all costs and expenses, including attorney's fees, incurred by
Landlord in connection therewith, shall constitute Additional Rent payable by
Tenant under this Lease and shall be paid by Tenant to Landlord's demand.
Nothing herein contained shall obligate Tenant to pay or discharge any lien
created by Landlord.
7.02 Prompt Payment. Tenant shall pay promptly all persons furnishing labor
or materials with respect to any work performed by Tenant or Tenant's contractor
in the Premises. No work which Landlord permits Tenant to do shall be deemed to
be for immediate use and benefit of Landlord so that no mechanic's or other lien
shall be allowed against the estate of Landlord by reason of any consent given
by Landlord to Tenant to improve the Premises.
7.03 Posting of Notices. Landlord shall have the right to post and keep
posted in the Premises notices of non-responsibility, or such other notices as
Landlord may deem to be proper for the protection of Landlord's interest in the
Premises.
ARTICLE VIII
COMMON AREAS
------------
8.01 Use of Common Areas. As long as Tenant is not in default hereunder,
Tenant shall be entitled to the use, in accordance with the Rules and
Regulations contained in Exhibit A and in common with other tenants, of the
common areas of the Shopping Center, as same may be constituted from time to
time; provided that the Landlord may amend Exhibit A and make or grant such
departure therefrom at such times and in such manner as Landlord in its sole
discretion may deem appropriate; and further provided that the use of the common
areas by Tenant shall be subject to the terms and conditions contained herein
and to such other reasonable rules and regulations for the use thereof as may be
prescribed by Landlord from time to time.
8.02 Alteration of Common Area. It is acknowledged and agreed that Landlord
may, in its sole discretion, at any time or from time to time, relocate or
rearrange or alter or modify the common areas or any part thereof provided only
that after any such change the common areas then available for Tenant's use and
enjoyment shall be substantially equivalent to those so available prior to such
change.
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8.03 Employee Parking. Tenant agrees that it shall cause all of its
employees, agents and contractors to utilize that portion of the parking areas
of the Shopping Center designed by Landlord for employee parking from time to
time and shall prohibit such persons from using other parking areas of the
Shopping Center.
ARTICLE IX
LANDLORD OBLIGATIONS
--------------------
9.01 Repairs by Landlord. Landlord agrees to keep in good order the common
areas of the Shopping Center (exclusive of the storefront of the Premises or any
plate or other glass in or about the Premises) provided that the cost of the
same shall be included in common area costs and expenses. Except as otherwise
provided in this Lease, Landlord gives to Tenant exclusive control of the
Premises and shall be under no obligation to inspect or repair any part of said
Premises. Tenant shall at once report in writing to Landlord any defective
conditions known to Tenant which Landlord is required to repair, and failure to
so report such defective condition shall make Tenant responsible to Landlord for
the repair of such defective condition and for any liability, cost or expense
incurred by Landlord by reason of failure to so report such defective condition.
Landlord shall have a reasonable time after receipt of notice from Tenant to
commence and complete repairs required of Landlord hereunder.
9.02 Damage or Destruction. (a) In the event that before or during the term
of this Lease, the Premises or the Shopping Center shall be damaged by fire or
other casualty which renders the Shopping Center, the Premises or any part of
the Shopping Center or the Premises untenantable, Landlord within thirty (30)
days of such fire or casualty or of receipt of written notice from Tenant of
such damage (whichever shall last occur) shall have the right to either (i)
serve written notice upon Tenant of Landlord's intent to repair said damage or
(ii) if said damage renders so much of either of the Premises or of the Shopping
Center untenantable that repair would not be feasible as determined in
Landlord's sole discretion, or if said damage shall have been occasioned by the
act or omission of Tenant, its invitees, servants, agents or employee, serve
written notice upon Tenant that this Lease is terminated. If Landlord shall so
terminate this Lease, such termination shall be effective as of the date
therefor set forth in Landlord's notice to Tenant. If Landlord shall elect to
repair such damage, such repairs shall be commenced within thirty (30) days of
notice to Tenant of such election and such repairs shall be completed within one
hundred eight (180) days of notice to Tenant of such election. During the period
of repair, the Rent shall be reduced to an amount which bears the same ratio to
the same as the portion of the Premises then available for the use bears to the
entire Premises. Upon completion of such repair, the Rent and such charges shall
thereafter be paid as if no fire or casualty had occurred.
(b)The other provisions of this Section 9.02 notwithstanding, Landlord
shall have no obligation to replace or repair any property in the Shopping
Center or on the Premises belonging to Tenant or to any one claiming through or
under Tenant nor shall Landlord have any obligation hereunder to replace or
repair any property on the Premises which Landlord shall have the right to
require Tenant to remove from the Premises or any alteration, addition or
improvement made to the Premises by, for, or at the direction of Tenant.
9.03 Condemnation. In the event the whole or any part of the Shopping
Center shall be taken by eminent domain or in any manner for public use, the
Landlord may, at its option, terminate this Lease and the estate hereby granted
by giving written notice of such termination to Tenant, and upon the giving of
such written notice by Landlord, the estate hereby granted and all rights of
Tenant hereunder shall expire as of the earlier of the date when title to or the
right to possession of the Shopping Center or a part thereof shall vest in or be
taken by public authority as aforesaid; and any rent or other charges paid for
any period beyond said date shall be repaid to Tenant. Tenant shall not be
entitled to any part of any award or payment which may be paid to Landlord or
made for Landlord's benefit in connection with such public use and Tenant shall
have no claim or rights as against landlord for the value of any unexpired term
of this Lease. Tenant may, however, claim and receive from the condemning
authority, if legally payable, compensation for Tenant's relocation costs and/or
business interruption provided that the same shall not reduce amounts otherwise
payable to Landlord. It is agreed however, that the widening of streets abutting
the land shall not affect this lease, provided that no part of the Shopping
Center is so taken.
9.04 Quiet Enjoyment and Transfer of Tenants. Tenant shall, subject to the
provisions hereof and of Section 5.01 dealing with subordination, peaceably and
quietly enjoy the Premises during the term hereof without hindrance or
interruption by Landlord so long as Tenant performs and observes all of the
terms, covenants and conditions to be performed and observed by Tenant hereunder
and pays all sums due from Tenant for rent, additional rent, costs, charges or
reimbursement or for sums advanced by Landlord on Tenant's behalf in accordance
with the provisions hereof; provided, however, Landlord shall have the right,
after having given Tenant thirty (30) days written notice of its intention to do
so, to transfer and remove Tenant and all property in the Premises from the
Premises to any other available premises in the shopping Center substantially
equal in size and area. Landlord shall bear the expense of any renovations or
alterations necessary to make the necessary to make the new space substantially
conform in layout and appointment with the original Premises.
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ARTICLE X
ADDITIONAL COVENANTS
--------------------
10.01 Right of Entry. Landlord shall have the right to enter and to grant
licenses to enter and/or pass through the Premises at any time and for such
lengths of time s Landlord shall deem reasonable (a) to inspect the Premises;
(b) to exhibit the Premises to prospective tenants or purchasers of the Shopping
Center; (c) to make alterations or repairs to the Premises or to the Shopping
Center (including the installation and repair of utility lines, including
sprinkler lines, which may pass through the premises to service other areas of
the Shopping Center and to store necessary materials, tools and equipment for
such alterations or repairs; (9d) for any purpose which Landlord deems necessary
for the operation and maintenance of the Shopping Center and the general welfare
and comfort of its tenants; (9e) for the purpose of removing from the Premises
any placards, signs, fixtures, alteration or additions not permitted by this
Lease, or (9f) to abate any condition which constitutes a violation of any
requirement, covenant or condition of this Lease or of the Rules and Regulation
or of any notice given Tenant by Landlord in accordance with the terms of this
Lease. No such entry by Landlord shall in any manner affect Tenant's obligations
and covenants under this Lease and no such entry shall of itself render Landlord
liable for any loss of, or damage to, the property of Tenant.
10.02 Surrender of Premises. At the end of the Term or upon any earlier
termination of this Lease or Tenant's right to possess the Premises, Tenant
shall vacate and surrender possession of the Premises to Landlord broom clean
and in good order and condition as the Premises were at the time Landlord shall
have delivered possession thereof to Tenant, ordinary wear and tear, damage by
fire or other casualty not caused by Tenant, its servants, agents or employees
and (subject to the provisions of Section 3.10 of this Lease) alterations,
additions and improvements to the Premises consented to in writing by Landlord
excepted. Tenant shall have no right (except as it may be obligated to do so
pursuant to Section 3.10 hereof) to remove any betterments and improvements
whether made by Tenant or Landlord including, but not limited to, floor and wall
coverings, lighting, cooling and ventilating, plumbing and other such fixtures,
partitions, alterations, improvement, systems and all such similar apparatus and
equipment. If not in default, Tenant shall, however, have the right at the end
of the term hereof, to remove any furniture, trade fixtures or other personal
property placed in the Premises, provided that Tenant promptly repairs any
damage to the Premises caused by such removal and provided further that all such
removal and/or repairs are completed by the normal expiration date of the term
10.03 Late Charges. In the event that Tenant fails to pay an sum due under
any provisions of this Lease (including, without limitation, rentals, costs,
charges, additional rentals or reimbursements) when due as herein provided,
then, such sum shall bear interest at the highest legal rate not to exceed
eighteen percent (18%) per annum calculated from said due date. The payment of
such interest shall not excuse or cure any default by Tenant under this Lease.
Tenant shall, in addition, pay a late charge of $50.00 for processing of late
payments; it being understood that a payment shall be considered late if not
received by Landlord when due in accordance with the terms of this Lease. Such
interest and late charges shall be considered additional rental under the
provisions hereof, the non-payment of which shall be considered a default on the
part of the Tenant and shall entitle Landlord to exercise all of its rights and
privileges hereunder.
10.04 All Notices in Writing. Any notice or demand or statement which by
any provision of this Agreement is required or allowed to be given either party
to the other shall be in writing and shall be deemed to have been sufficiently
given for all purposes when made by personal delivery or sent in the United
States mail as certified or registered mail, return receipt requested, postage
prepaid and addressed (a) if to Tenant, to the Address of Tenant, and (b) if to
Landlord, to the Address of Landlord or to such other place as Landlord may from
time to time designate in a notice to Tenant. Tenant hereby appoints as its
agent for service or process in all dispossessory, distraint and summary
ejectment proceedings which may be brought against it by Landlord, any employee
of Tenant occupying the Premises: provided that if no employee of Tenant is
occupying the Premises, then Tenant agrees that such service may be made by
attachment thereof to the main entrance to the Premises.
ARTICLE XI
MISCELLANEOUS
-------------
11.01 Attorney's Fees. Tenant shall pay reasonable attorney's fees of
Landlord in the event Landlord is required to use the services of an attorney
for the enforcement against Tenant of any of the terms, covenants or provision
hereof.
11.02 Time of Essence. Each of Tenant's covenants herein is a condition and
time is of the essence with respect to the performance of every provision of
this Lease and the strict performance of each shall be a condition precedent to
Tenant's rights to remain in possession of the Premises or to have this Lease
continue in effect.
14
<PAGE>
11.03 Holding Over. Should Tenant, with or without Landlord's written
consent, hold over after the termination of this Lease, Tenant shall become a
tenant at will and shall be bound by each and all of the terms herein provided
as may be applicable to such tenancy at will. Any such holding over shall not
constitute an extension of this Lease by law or otherwise. During such holding
over, Tenant shall pay rent (including minimum rent, common area maintenance
costs and expenses, tax impositions, insurance costs, promotional costs and
other charges hereunder), at that rate equal to two hundred fifty percent (250%)
of the rate or rates then applicable under the provisions of this Lease.
11.04 Waiver. No waiver by Landlord of any provision of this Lease shall be
deemed to be a waiver of any other provision hereof or of any subsequent or
continuing breach by Tenant of the same or any other provision. Landlord's
consent to or approval of any act by Tenant shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval of any subsequent
act. No agreement to accept Tenant's surrender of the Premises shall be valid
unless in writing and signed by Landlord. No employee of Landlord or Landlord's
agents shall have any power to accept the keys to the Premises prior to the
termination of this Lease, and the delivery of the keys to any such employee
shall not operate as a termination of the Lease or surrender of the Premises.
11.05 Successors and Assigns. Except as otherwise provided in this Lese,
all of the covenants, conditions, and provisions of this Lease shall be binding
upon, and shall inure to, the benefit of the parties hereto and their respective
heirs, personal representatives, executors, administrators, successors and
assigns, when permitted hereunder; it is understood and agreed, however, that
the term "Landlord", as used in this Lease means only the owner or the lessor
for the time being of the Shopping Center of which the Premises are apart, so
that in the event of any sale or sales of said property or of any lease thereof,
the Landlord named herein shall be and hereby is entirely freed and relieved of
all covenants and obligations of Landlord hereunder accruing thereafter; and it
shall be deemed, without further agreement, that the purchaser or the lessor, as
the case may be, has assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder during the period such party has possession of
the land and Shopping Center.
11.06 Headings, Captions and References. The article and section captions
contained in this Lease are for convenience only and do not in any way limit or
amplify any term or provision hereof. The terms "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular, the neuter shall
include the masculine and feminine genders and, if there be more than one
tenant, the obligations herein imposed upon Tenant shall be joint and several.
11.07 Landlord and Tenant Relationship. Nothing herein contained shall be
deemed or construed by the parties hereto, nor by any other party, as creating
the relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of computation of rent, nor any other provision contained herein, know
any acts of the parties hereto, shall be deemed to create any relationship
between the parties hereto other than set forth in Section 11.08 hereinbelow.
11.08 No Estate by Tenant. This Lease shall create the relationship of
Lessor and Lessee between Landlord and Tenant; no estate shall pass out of
Landlord, and this Lease shall not be subject to levy and/or sale and shall not
be assignable by Tenant except as provided in Section 3.12 hereof.
11.09 Delay in Delivery of Premises. Notwithstanding anything to the
contrary contained in this Lease, Landlord shall not be liable in any manner to
Tenant for damages or any other claim resulting from failure to deliver the
Premises or for any delay in commencing or completing any work Landlord is to
perform regarding the Premises or with respect to the Landlord's Building, or
any other part or all of the Shopping Center, and Tenant takes the Premises
as-is unless the Landlord is required to perform Landlord's Work as specified in
Exhibit "B", and Tenant hereby waives all such liability; provided that in the
event the Commencement Date shall not have occurred within six (6) months after
the date hereof, then this Lease shall automatically become null and void
(except that Landlord shall return to Tenant the Security Deposit) and both
parties hereto shall be relieved of all obligations hereunder, in which event
each party shall, at the other's request, execute an instrument in recordable
form containing a release or surrender of all right, title and interest in and
to this Lease.
11.10 Entire Agreement and No Offer. This Lease constitutes the entire
agreement, intent and understanding between the parties hereto with respect to
the subject matter hereof, and no prior or contemporaneous agreement or
understanding with regard to any matter shall be effective for any purpose
unless reduced in writing herein. No provision of this Lease (including this
specific provision) may be amended or added to except by an agreement in writing
signed by the parties hereto of their respective successors in interest. The
submission of this Lease for examination or consideration by Tenant shall not
constitute an offer to lease by Landlord nor a reservation of space, and this
Lease shall be effective only upon execution and delivery hereof by both
Landlord and Tenant.
15
<PAGE>
11.11 Representations. Tenant acknowledges that neither Landlord's agents,
employees or contractors have made any representations or promises with respect
to the Premises, the Shopping Center, or this Lease except as expressly set
forth herein, and that Tenant shall have no claim, right or cause of action
based on, or attributable to, any representation or promise allegedly made by
Landlord, its agents, employees or contractors which is not expressly set forth
herein.
11.12 Jurisdiction. The laws of the State of Florida shall govern the
interpretation, validity, performance and enforcement of this Lease and the
venue for any action involving this Lease shall be Lee County, Florida.
11.13 Landlord's Liability. Tenant shall look solely to the estate and
property of Landlord in the Shopping Center for the satisfaction of Tenant's
remedies for collection of a judgment or other judicial process requiring the
payment of money by Landlord in the event of any default or breach by Landlord
of any terms, covenants and conditions of this Lease to be observed an/or
performed by Landlord, and no other property or assets of Landlord, its owners,
managers, partners or agents shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies.
11.14 Execution by Agent. It is acknowledged and agreed that if this Lease
is executed by an agent on behalf of Landlord, such agent is acting solely in
his or its capacity as agent for Landlord; and neither such agent nor its
officers, directors, shareholders or employees shall have any liability under
this Lease for any act or omission on Landlord hereunder, and Tenant shall look
solely to Landlord with respect to all covenants and agreements of Landlord
contained in this Lease.
11.15 Corporate Tenants. In the event Tenant is a corporation, the persons
executing this Lease on behalf of Tenant hereby covenant and warrant that:
Tenant is a duly constituted corporation qualified to do business in the State
of Florida; all Tenant's franchises and corporate taxes have been paid to date;
all future forms, reports, fees and other document necessary for Tenant to
comply with applicable laws will be filed by Tenant when due; and such persons
are duly authorized by the governing body of such corporation to execute and
deliver this Lease on behalf of the corporation.
11.16 Accord and Satisfaction. No payment by Tenant or receipt by Landlord
of a lesser amount than the Minimum Rent or any Additional Rent or other charge
stipulated herein shall be deemed to be other than on account of the earliest
stipulated Minimum Rent or Additional Rent or other Charge, as the case may be,
nor shall any endorsement or statement or any check or any letter accompanying
any such check or payment be deemed an accord and satisfaction; and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such amount due or pursue any other remedy provided for in this
Lease or available at law or in equity.
11.17 Recording. This Lease shall not be recorded. Contemporaneously with
the execution of this Lease or at any time hereafter, at the request of either
party herein, a Memorandum of Lease shall be executed by the parties hereto and
recorded, with the cost of preparation and recordation of the said Memorandum to
be borne by the party requesting the said Memorandum.
11.18 Radon Gas. 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
health department.
11.19 Hazardous or Toxic Material. The Tenant shall not handle, store,
transport or dispose of hazardous or toxic materials within the Premises or in
or on the Shopping Center and its common areas without the written consent of
the Landlord. If Tenant does, with or without the Landlord's knowledge or
written consent, handle store, transport or dispose of hazardous or toxic
materials within the Premises or in or on the Shopping Center or its common
areas then the Tenant must handle, store, transport or dispose of said hazardous
or toxic materials in accordance with all applicable federal, state and local
rules regulations, ordinances and statutes and the Landlord specifically does
not in this sentence waive the requirements of the preceding sentence.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease
Agreement and have hereunto set their seals and/or adopted as their seals
respectively the word SEAL appearing beside their execution below; all as of the
Lease Date set forth in the Fundamental Lease Provisions.
WITNESSES TENANT:
THE FURST GROUP, INC.
/s/ /s/ Wayne C. Phipps (Seal) Date 10/30/98
----------------- ------------------------
Wayne C. Phipps
/s/ Chief Executive Officer
-----------------
LANDLORD:
BRIDGE PLAZA PARTNERSHIP
A Florida general Partnership
By: It's General Partner:
/s/ BRIDGE PLAZA RATLIFF, INC.,
----------------- A Florida Corporation
BY: /s/ Robert Lee Ratliff III (Seal) Date
/s/ --------------------------- 11/4/98
----------------- ROBERT LEE RATLIFF III
President
17
<PAGE>
EXHIBIT "A"
-----------
RULES AND REGULATIONS
---------------------
TENANT SHALL:
-------------
A. Keep the inside and outside of the Premises and all glass, doors, and
windows of the Premises clean.
B. Keep all exterior surfaces of the Premises clean.
C. Replace promptly at Tenant's expense, with glass of like kind and quality
and any plate glass or window of the Premises which may become cracked or
broken.
D. Maintain the Premises at Tenant's expense in a clean, orderly and
sanitary condition free of offensive odors, insects, rodents, vermin and other
pests.
E. Keep rubbish, garbage, trash and other refuse in proper containers in the
interior of the Premises and cause same to be removed on a regular basis at
Tenant's expense. If Tenant is a restaurant or food service operator, Tenant
shall as required by Landlord install garbage disposal equipment or a
refrigerated wet garbage storage facility within the Premises and contract for
daily removal of same. In the event Tenant fails to pay for such service
Landlord shall have the right to make payments on Tenant's behalf in which event
Tenant shall pay such sums as are advanced by Landlord as additional rent to
Landlord upon demand.
F. Comply with all applicable laws, ordinances and regulations of
governmental authorities or any agencies thereof, and further to comply with all
recommendations of any public or private agency having authority over insurance
rates with respect to the use or occupancy of the Premises by Tenants.
G. Keep all mechanical apparatus free of vibration and noise which may be
transmitted beyond the Premises.
H. Conduct its business in a dignified manner in accordance with high
standards of operation so as to assure the transaction of a maximum volume of
business in and at the Premises.
I. Schedule all deliveries to the Premises or the Shopping Center in advance
to minimize interference with business operation during normal business hours.
<PAGE>
TENANT SHALL NOT:
------------------
A. Place or maintain merchandise or other articles in any vestibule or entry
of the premises, on the footwalks adjacent hereto, or elsewhere in the exterior
or common areas of the Shopping Center.
B. Use or permit the use of any apparatus for sound reproduction or
transmission including, but not limited to, loudspeakers, phonographs, public
address systems, sound amplifiers and radios or any musical instruments in any
manner that sounds so produced are audible or visible outside the Premises.
C. Permit undue accumulation of garbage, trash, rubbish or other refuse
within or without the Premises.
D. Cause or permit objectionable odors or food odors to emanate or be
dispelled from the Premises.
E. Solicit business in the parking area or other common areas of the
Shopping Center.
F. Distribute handbills or other advertising matter to any persons or in or
upon any automobiles in the parking areas or in any other common areas of the
Shopping Center.
G. Permit the parking or standing of delivery vehicles to interfere with
the use of any driveway walk, parking area, mall or other common areas of the
Shopping Center.
H. Cause or permit the loading or unloading of merchandise, supplies or
other property outside the area designated therefor by Landlord as a "Loading
Area" or permit the parking or standing outside of any such area by delivery
vehicles or other vehicles or equipment engaged in loading or unloading.
EXHIBIT "B"
-----------
ADDITIONAL LEASE PROVISIONS
---------------------------
1. Option to Renew. The LEASE shall include a renewal option of three (3)
years:
RENEWAL OPTION:
The exercise of the RENEWAL OPTION shall extend the term of the LEASE for a
three year period (from February 1, 2002, through January 31, 2005) upon the
condition that there is no default in the performance of any terms of the LEASE
by the Tenant at the time of notice of the election to extend is given by TENANT
or at the commencement of such RENEWAL OPTION extended term. The RENEWAL OPTION
shall terminate if the TENANT materially defaults in the performance of any
terms of the Lease during the initial Term of the LEASE.
TENANT shall give LANDLORD a minimum of one hundred fifty (150) days
written notice prior to the expiration of the initial Term of the LEASE as to
TENANT'S intention to exercise the three (3) year RENEWAL OPTION, failing which
the RENEWAL OPTION to extend shall expire.
The rent during the Option Period shall be a sum of $102,767.00 per year -
$8,565.00 per month.
2. Construction of Premises
A. Landlord's Work. Landlord shall perform the work referenced in the
drawings prepared by Associates in Architecture and Planning, Inc.which has been
initialed by the Landlord and the Tenant and dated October 10, 1998.
<PAGE>
B. Tenant's Work. Tenant shall perform all other work required to operate
the Tenant's business on the Premises excluding the work described as Landlord's
Work in the previous paragraph.
THE FURST GROUP, INC.
BY: /s/ Wayne C. Phipps
-------------------------
WAYNE C. PHIPPS
Chief Executive Officer
BRIDGE PLAZA PARTNERSHIP,
A Florida general partnership
BY: It's General Partner:
BRIDGE PLAZA RATLIFF, INC.,
a Florida Corporation
BY: /s/ Robert Lee Ratliff III
-------------------------
ROBERT LEE RATLIFF III
President
<PAGE>
RESOLUTION OF THE BOARD OF DIRECTORS
-----------------------------------------
I, SUZANNE M. BRINN, do hereby certify that I am the duly elected Secretary
of THE FURST GROUP, INC., "Corporation", that the following is a true and
correct copy of a resolution adopted by the Board of Directors of the
Corporation at a meeting of said Board of Directors held in accordance with the
By-Laws of the Corporation on the 18th day of October 1998, and that said
resolution is now in full force and effect:
RESOLVED: That the Chief Executive Officer, President, Vice President, the
Secretary, and/or the Treasurer of the Corporation be, and they hereby are
authorized and direct to negotiate, execute and deliver on behalf of the
Corporation a lease agreement with BRIDGE PLAZA PARTNERSHIP (Landlord), whereby
the Corporation will lease certain business premises 12901 McGregor Boulevard,
Unit 1A, Fort Myers, Florida, on terms and conditions which shall be determined
by said officers to be advisable and in the best interests of the Corporation,
and the conclusive evidence of their approval thereof shall be a lease executed
and delivered by said officer.
IN WITNESS WHEREOF, I have affixed my name as Secretary of the Corporation
this, the 30th day of October, 1998.
/s/ Suzanne M. Brinn
-------------------------------
SUZANNE M. BRINN, SECRETARY
(Corporate Seal)