LEASE BETWEEN
INTERNATIONAL SOLUBLES
AND
SUNCOR OF HEATHROW, LTD.
FOR
SPACE #262
AT
MARKET SQUARE SHOPPING CENTER
HEATHROW, FLORIDA
81
<PAGE>
LEASE
THIS LEASE is made and entered into as of the 20th day of June, 2000, by
and between SUNCOR OF HEATHROW, LTD., the address of which is 160 International
Parkway, Suite 280, Heathrow, Florida 32746, (Landlord or Lessor) and
INTERNATIONAL SOLUBLES CORPORATION, the address of which is 120 International
Parkway, Suite 262, Heathrow, Florida 32746, (Tenant or Lessee).
ARTICLE I. GRANT AND TERM
SECTION 1.01. LEASED PREMISES. Landlord, in consideration of the rent to be
paid and the covenants to be performed by Tenant, does hereby demise and lease
unto Tenant, and Tenant hereby rents from Landlord, those certain premises in
the retail development commonly known as Market Square Shopping Center
(hereinafter referred to as "Shopping Center"), and having 2,293 square feet of
floor area. Said development is shown on the site plan marked Exhibit "A"
attached hereto and made a part hereof, such "Leased Premises" being
cross-hatched thereon and known as Suite Number 262. The legal description of
the Shopping Center is more particularly described on Exhibit "B" attached
hereto and made a part hereof.
The exterior walls and roof of the Leased Premises and the area beneath or
above said premises are not demised hereunder and the use thereof together with
the right to install, maintain, use, repair and replace pipes, ducts, conduits,
wires and structural elements leading through the Leased Premises in locations
which will not materially interfere with Tenant's use thereof and serving other
parts of the Shopping Cerrter are hereby reserved unto landlord.
Tenant hereby agrees that it is leasing the premises in their as-is
condition. Tenant, at its sole cost and expense, shall be responsible to
complete any and all improvements or modifications necessary in order to make
the premises ready for Tenants occupancy.
SECTION 1.02. COMMENCEMENT AND ENDING DAY OF TERM. The term of this Lease
shall commence on June 20, 2000 and continue thereafter on a month-to-month
basis. Tenant or Landlord may terminate the Lease upon sixty (60) days prior
written notice to the other of its intention to do so.
ARTICLE II. RENT AND OTBER CHARGES
SECTION 2.01. MINIMUM RENT. (a) The minimum monthly rental shall be an
amount equal to Two Thousand Eight Hundred Sixty-Six and 25/100 Dollars
($2,866.25).
(b) The term "Lease Year" as used herein shall mean consecutive twelve (12)
month periods commencing on the commenencement date (if such date falls on the
first day of a calendar month) or on the first day of the calendar month
following the commencement date (if the commencement date does not fall on the
first day of a calendar month).
(c) Should the term of this Lease cormmence on a day other than the first
day of a calendar month, then the rental for such month shall be pro-rated upon
a daily basis based upon a thirty (30) day calendar month.0
SECTION 2.02. ADDITIONAL RENT. In addition to the minimum rent hereinabove
provided, and commencing at the same time as the minimum rental obligation
conunences hereunder, Tenant agrees to pay to Landlord additional rent as set
forth below:
(a) CAM. During the term of this lease, Tenant shall pay a pro-rata share
of all the expenses incurred in connection with the operation and maintenance of
the common areas of the Shopping Center, hereinafter referred to as "Tenant's
CAM Tenant's share of the CAM shall be determined by the square footage leased
by Tenant compared to the square footage of the Shopping Center. Initally,
Tenant shall pay to Landlord $2.00 per square foot leased by Tenant per year in
equal monthly installments, which amount shall be redited to Tenant's share of
82
<PAGE>
CAM. Tenant shall also pay, within thirty (30) days of being billed for same,
the difference between the amount paid by Tenant under this paragraph and
Tenant's share of CAM for annual expcnses actually paid by Landlord. For the
convenience of the Tenant, the monthly amount payable by Tenant under trust
paragraph may be increased in the event of an increase in CAM costs payable by
Landlord for the Shopping Center.
(b) REAL ESTATE TAXES. During the term of this Lease, Tenant shall pay its
pro-rata share of all annual real estate taxes assessed against the Shopping
Center (hereinafter referred to as "Tenants Share of Taxes"). In the event that
a portion of the Shopping Center is separately assessed for the purpose of
billing real estate taxes directly to an anchor tenant, Tenant's Share of Taxes
shall be determined by the square footage leased by Tenant compared to the
square footage of that portion of the Shopping Center not separately assessed
for the purpose of billing real estate taxes directly to an anchor tenant.
Initially, Tenant shall pay to Landlord $1.00 per square foot leased by Tenant
per year in equal monthly installments of, which amount shall be credited to
Tenant's Share of Taxes, Tenant shall also pay, within thirty (30) days of being
billed for same, the difference between the amount paid by Tenant under this
paragraph and Ten=t's Share of Taxes of real estate taxes actually paid by
Landlord. For the convenience of Tenant the monthly amount payable by Tenant
under this paragraph may be increased in the event of an increase in real estate
taxes payable by Landlord for the Shopping Center.
(c) INSURANCE. During the term of this Lease, Tenant shall pay its pro-rata
share of all annual insurance premiums billed for insurance coverage for the
benefit of the Shopping Center (hereinafter referred to as "Tenant's Share of
Insurance"). In the event an anchor tenant of the Shopping Center pays insurance
premiums for its leased space directly to an insurance carrier. Tenant's Share
of Insurance shall be determined by the square footage leased by Tenant compared
to the square footage of that portion of the Shopping Center not leased to such
anchor tenant. Initially, Tenant shall pay to Landlord $.25 per square foot
leased by Tenant per year in equal monthly installments, which amount shall be
credited to Tenant's Share of Insurance. Tenant shall also pay, within thirty
(30) days of being billed for same, the difference between the amount paid by
Tenant under this paragraph and Tenant's Share of Insurance for annual insurance
premiums actually paid by Landlord. For the convenience of Tenant, the monthly
amount payable by Tenant under this paragraph may be increased in the event of
an increase in insurance premiums payable by Landlord for the Shopping Center.
SECTION 2.02.1. COMM0N AREA. (a) The term "common area", as used in the
Lease, shall mean the parking areas, roadways, pedestrian sidewalks, truck ways,
loading docks, delivery areas, landscaped areas, public bathroom and comfort
stations and all other areas or improvements which may be provided by the
Landlord for the convenience and use of the tenants of the Shopping Center, and
their respective subtenants, agents, employees, customers, invites, and any
other licensees of Landlord- The use and occupancy by the Tenant of the Leased
Premises shall include the use, in common with all others to whom Landlord has
granted or may hereafter grant rights to use the same, of the common areas
located within the Shopping Center, and of such other facilities as may be
designated from time to time, subject, however, to reasonable rules and
regulations for the use thereof as prescribed from time to time by the Landlord.
Landlord may include the parking areas, roadways and landscaped areas located on
property adjacent and contiguous to the Shopping Center in common areas. Tenant
and its employees shall park their cars only in areas specifically designated
from time to time by Landlord for that purpose. Automobile license numbers of
employees' cars shall be furnished to Landlord upon Landlord's request. After
giving Tenant no less than five (5) days prior written notice, Landlord may at
any time, close temporarily any common area to make repairs or changes, to
prevent the acquisition of public rights in such area or to discourage
non-customer parkin; and may do such other acts in and to the common areas as in
its judgment may be desirable to improve the convenience thereof. Landlord shall
use its best efforts to interfere with Tenant's conduct of business.
(b) Landlord reserves the right, from time to time, to utilize portions of
the comxnon areas for outdoor shows, displays, the leasing of kiosks or such
other uses which in Landlord's judgment tend to attract the public. Further,
landlord reserves the right to utilize the lighting standards and other areas in
the parking lot for advertising purposes.
83
<PAGE>
SECTION 2.03, UTILITY CHARGES. Tenant shall be solely responsible for and
promptly pay all charges for water, gas, heat, electricity, sewer and any other
utility used upon or furnished to the Leased Premises. Utility deposits shall be
the sole responsibility of the Tenant. If Landlord shall elect to supply any of
the foregoing utilities used upon or furnished to the Leased Premises. Tenant
agrees to purchase and pay for same as additional rent, within ten (10) days of
the presentation by Landlord to Tenant of bills, therefore, at the applicable
rates filed by the utility company serving the area with the proper regulatory
authority and in effect from time to time covering such services. The obligation
of the Tenant to pay for such utilities shall commence as of the date on which
possession of the premises is delivered to Tenant.
SECTION 2.04. TAXES ON TENANTS PROPERTY. Tenant shall be responsible for
and shall pay before delinquency all municipal county, state and federal taxes
assessed during the term of this Lease against any leasehold interest or
personal property of any kind, owned by or placed in, upon or about the Leased
Premises by the Tenant.
SECTION 2.05. ADDITIONAL PAYMENTS. Tenant shall pay any and all sums of
money or charges required to be paid by Tenant under this Lease promptly when
the same are due, without any deductions or set-off whatsoever. All such amounts
or charges shall be payable to Landlord at the place where the minimum rental is
payable.
SECTION 2.06. LATE CHARGES. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs, include, but are not limited to,
processing and accounting charges and late charges which may be imposed upon
Landlord by temis of any mortgage or trust deed covering the premises.
Accordingly, if any installment of rent or any sum due from Tenant shall not be
received by Landlord or Landlords designee within ten (10) days after said
amount is due, then Tenant shall pay to Landlord a late charge equal to five
percent (5%) of such overdue amount, plus any attorneys' fees incurred by
Landlord by reason of Tenant's failure to pay rent and/or other charges when due
hereunder. The parties hereby agree that such late charges represent a fair and
reasonable estimate of the cost that Landlord will incur by reason of the late
payment by Tenant. Acceptance of such late charges by the Landlord shall, in no
event, constitute a waiver of Tenants default with respect to such overdue
amount, nor prevent Landlord from exercising any of the other rights and
remedies granted hereunder.
SECTION 2.07. ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction and Landlord shall
accept such check or payment without prejudice to Landlords right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
SECTION 2-08. CALENDAR YEAR. The term "calendar year" as used in this Lease
shall be deamed to mean a period of twelve (12) consecutive months from Januaxy
1 to December 31.
SECTION 2.09- FURNISHING OF FINANCIAL STATEMENT. Upon Landlord's written
request, Tenant and any guarantor(s) of this Lease shall promptly furnish
Landlord, from time to time, financial statements reflecting Tenant's and
guarantor's current financial condition.
ARTICLE III USE OF PREMISES
AND CONDUCT OF BUSINESS BY TENANT
SECTION 3.01. USE OF PREMISES. Tenant shall use and occupy the Leased
Premises durmg the continuance of this Lease for the purpose of general oflice,
and for no other purpose or purposes without the prior written consent of
Landlord.
SECTION 3.02. CHANGE OF NANE. Tenant agrees (a) to operate the business
in the Leased Premises under the name of International Solubles, and (b) not to
change the advertised name or character of the business operated in the Leased
84
<PAGE>
Premises without the prior written approval of Landlord, which approval shall
not be unreasonably withheld, and (c) to refer to the Shopping Center as the
Market Square Shopping Center in designating the location of the Leased Premises
in all nenvspaper and other advertising and in all other references to the
location of the Leased Prenuses.
SECTION 3.03. SOLICITATION OF BUSINESS. Tenant and Tenants' employees and
agents shall not solicit business in the parking or other conunon areas nor
shall Tenant distribute any handbills or other advertising matter in the parking
area or in other conunon areas-
SECTION 3.04. OPERATON OF BUSINESS. Tenant agrees to operate one hundred
percent (100%) of the Leased Premises during the entire term of this Lease
unless prevented from doing so because of fire, accident or acts of God, and to
conduct its business at all times in a high class and reputable manner,
maintaing at all times a full staff of employees and a full and complete stock
of merchandise. Tenant shall promptly comply with all laws and ordinances and
lawful orders and regulations affecting the Premises hereby leased and the
cleanliness, safety, occupancy and use of same. No auction, liquidation,
going-out-of-business, fire or bankruptcy sales may be conducted in the Leased
Premises without the prior written consent of Landlord. Tenant agrees that it
operate and keep the leased Premises open for business for a minimum of five (5)
days a week and from the hours of 8:00 a.m. to 5:00 p.m. each day and vall
conduct such business in a lawful manner and in good faitk and will not do any
act tending to injure the reputation of the Shopping Center.
SECTION 3.05. CARE OF PREMISES. Tenant shall keep the Leased Premises
(including the service areas adjacent thereto, show windows and signs) orderly,
neat, safe and clean and free from rubbish and dirt at all times and shall store
all trash and garbage at Tenant's expense. Tenant shall not burn any trash or
garbage at any time in or about the Shopping Center. If Landlord shall provide
any services or facilities for such pick up, then Tenant shall be obligated to
use the same and shall pay a proportionate share of tile actual costs thereof
within thirty (30) days after being billed therefore.
SECTION 3.06. WASTE OR NUISANCE. Tenant shall not commit or suffer to be
committed any waste upon the Leased Premises or any nuisance or other act or
thing which may disturb the quiet enjoyment of any other Tenant in the building
in which the Leased Premises may be located, or in the Shopping Center. Tenant
shall not use or permit to be used, any medium that might constitute a nuisance,
such as loud speakers, sound amplifiers, phonographs, radios, televisions or any
other sound-producing device which will carry sound outside the Leased Premises.
No flashiing light will be used without prior written approval by Landlord.
SECTION 3.07. INSTALLATION BY TENANT. Tenant shall not make or cause to be
made any alterations, additions or improvements to the Leased Premises, or
install or cause to be installed any exterior signs, floor covering, interior or
exterior lighting, plumbing fixtures, shades, canopies or awnings or make any
changes to the store front, mechanical, electrical or sprinkler systems without
the prior written approval of Landlord. Tenant shall present to the landlord
plans and specifications for such work at the time approval is sought.
SECTION 3.08. REMOVAL BY TENANT. All alterations, decorations, additions
and improvements made by Tenant shall be deemed to have attached to the
leasehold and to have become the property of Landlord upon such attachment. Upon
expiration of this Lease or any renewals hereof, the Tenant shall not remove any
of such alterations, decorations, additions and improvements except trade
flxtures installed by Tenant may be removed if all rents due herein are paid in
full and Tenant is not otherwise in default hereunder and Tenant shall promptly
remove same and repair any damage to the Leased Premises caused by such removal
at the expiration or termination of the Lease. If Tenant is in default, Landlord
shall have a lien on said fixtures as security against loss or damage resulting
from any such default by Tenant and said fixtures shall not be removed by Tenant
SECTION 3.09. SIGNS. Tenant will not place or cause to be placed or
maintained any sign or advertising matter of any kind anywhere within the
Shopping Center except in the interior of the Leased Premises without the pnor
written approval of Landlord. Such consent shall not be unreasonably withheld.
No installation change, alterations, or modification of any exterior sign shall
be undertaken without Landlord's prior wntten approval. No symbol, design, name,
mark or insignia
85
<PAGE>
adopted by the Landlord for the Shopping Center shall be used without the prior
written consent of Landlord. All signs located in the interior of any store
shall be in good taste so as not to detract from the general appearance of the
store and the Shopping Center. Tenant further agrees to maintain in good
condition and repair at all times any such sign or advertising matter of any
kind which has been approved by Landlord for use by Tenant
SECTION 3.10. RULES AND REGULATIONS. Tenant agrees to comply with and
observe all rules and regulations established by Landlord from time to time,
provided the same are reasonable and shall apply uniformly to all tenants of the
Shopping Center. Tenant's failure to keep and observe said rules and regulations
shall constitute a breach of the terms of this Lease in the manner as if the
same were contained herein as covenants. In the event such Rules and Regulations
arc already in existence, they are attached hereto as Exhibit "D".
SECTION 3.11. QUIET ENJOYMENT. Upon payment by the Tenant of the rents
herein provided, and upon the observance and performance of all the covenants,
terms and conditions of Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the, Leased Premises for the term hereby
demised without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under the Landlord,
subject, nevertheless, to the terms and conditions of this Lease, and any
mortgages to which this Lease is subordinate.
SECTION 3.12. LOSS AND DAMAGE. The Landlord shall not be responsible or
liable to the Tenant for any loss or damage that may be occasioned by or through
the acts or omissions of persons occupying adjoining premises or any part of the
Premises adjacent to or connected with the Leased Premises or any part of the
building of which the Leased Premises are a part, or for any loss or damage
resulting to the Tenant or its property from bursting, stoppage or leaking
water, gas, sewer or steam pipes or for any darnav within the Leased Premises
from any cause whatsoever.
SECTION 3.13. NOTICE BY TENANT. Tenant shall give immediate notice to
Landlord in case of fire or accidents in the Leased Premises or in the building
of which the Leased Premises are a part or of defects therein or in any fixtures
or equipment.
SECTION 3.14. RIGHT OF ENTRY. Landlord or Landlords agent shall have the
right to enter the Leased Premises at all reasonable times to examine the same
and to show them to prospective purchasers or mortgagees of the Shopping Center,
and to make such repairs, alterations, improvements or additions as Landlord may
deem necessary or desirable, and Landlord shall be allowed to take all material
into and upon the Leased Premises that may be required therefore without the
same constituting an eviction of Tenant in whole or in part and the rent
reserved shall in no ways abate while said repairs, alterations, improvements,
or additions are being made, by reason of loss or interruption of business or
otherwise.
SECTION 3.15. CHANGES AND ADDITIONS. Landlord hereby reserves the right at
any time, and from time to time, to make alterations or additions to, and to
build additional stories on the building in which the Leased Premises are
located and to build adjoining the same. Landlord also reserves the right at any
time, and from time to time, to construct other buildings and improvements in
the Shopping Center and to enlarge the Shopping Center, and to make alterations
therein or additions therefore, and to build additional stories on any building
or buildings within the Shopping Center, and to any building adjoining thereto
and to construct decks or elevated parking facilities. The purpose of the
attached site plan is to show the approximate location of the Leased Premises
within the Shopping Center and Landlord reserves the right at any time to
relocate the various buildings, parking areas and other common areas shown on
said site plan Landlord shall, at all times, exercise such steps as am
reasonable to minimize the interference with Tenant's continued business
operation as usual.
SECTION 3-16. RADON DISCLOSURE. Radon is a nayurally occurring radioactive
gas that, when it has accumwated 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 Florida. Additional
information regarding radon and radon testing may be obtained from your County
Public Health Unit. landlord shall not be held responsible for any radon that
may be found on or about the demised premises.
86
<PAGE>
SECTION 3.17. HAZARDOUS SUBSTANCES. The term "hazardous materials" as used
in the Lease shall mean and refer to any pollutant, contaminant, toxic or
hazardous waste (including, but not limited to, asbestos, Polychlorinated
Biphenyls and petroleum products) or any other substance, the removal or
remediation of which is required, or the generation, use or handling of which is
restricted, prohibited, regulated or penalized by an "Environmental Laws", which
term shall mean any federal, state or local law, rule, regulation or ordinance
relating to pollution or protection of the environment or hereafter enacted,
including but not limited to, the Comprehensive Environmental Response
Compensating and Liability Act of 1980, the Resource Conservation and Recovery
Act and the Superfumd Amendments and ReauthorLzation Act of 1986. Tenant hereby
agrees that (i) the Leased Premises will at all times be operated in full
compliance with the Environmental Laws; (ii) no activity will be conducted on
the Leased Premises that will generate any hazardous materials except for
activities that are part of the ordinary course of Tenant's business activities
and which are specifically described in this Lease (the "Permitted Activities"),
provided said activities have been approved in advance in writing by landlord
and are conducted in accordance with all Environmental Laws and provided further
that Tenant has fully disclosed to Landlord in writing the existence, extent and
nature of any such hazardous materials which Tenant is legally authorized and
empowered to maintain on, in or under the Leased Premises or to use in
connection therewith, and provided further that Tenant has obtained and will
maintain all licenses, permits and approvals required with respect thereto and
is in full compliance with all the terms, conditions and requirements of such
licenses, permits and approvals; (iii) the Leased Premises will not be used in
any manner for the storage of any hazardous materials except for the temporary
storage of such materials in accordance with applicable law that are used in the
ordinary course of Tenant's business and which are described by quantities in
Schedule "A" attached hereto (the "Permitted Materials"), provided such
permitted materials are properly stored in a manner and location meeting all
Enviromnental Laws and the same is approved in advance in writing by Landlord;
(iv) Tenant has not and will not mix or dispose of any hazardous materials on or
within the Leased Premises; (v) Tenant will not install any underground tanks of
any type within the Leased Premises or on any part of the property; (vi)Tenant
will not allow any surface or subsurface conditions to exist or come into
existence that constitute, or with the passage of time may constitute, a public
or private nuisance or a violation of any Environmental Law, (vii) Tenant will
not permit any hazardous materials to be brought or found or located, the same
shall be immediately removed by Tenant or caused to be removed by Tenant, with
proper packaging, labeling, transportation and disposal and all required cleanup
and remediation procedures shall be diligently undertaken by Tenant and at
Tenant's sole cost and expense pursuant to all Environmental Laws. In additiom
violation of any of the foregoing conditions shall be and constitute a default
under this Lease entitling Landlord to terminate this Lease. Any such
termination shall not, however, relieve Tenant of its obligations to comply with
the terms of this provision regarding the removal of hazardous materials or of
the indemnification provided herein. In addition, if Tenant fails to comply with
any of the covenants of this subparagraph, or fails to comply with any
Environmental Laws, Landlord, at Tenant's sole cost and expense, may immediately
commence remedial action to restore the Leased Premises to all environmentally
sound condition. Tenant agrees to immediately notify Landlord of (a) any
significant release of hazardous materials, or other chemicals or substances;
and (b) the receipt of any pertinent notices or communications from any
governmental authority. Tenant further agrees to provide Landlord with a letter
of certification from time to time upon the request of Landlord and on each
anniversary of this Lease, certifying that Tenant has complied with all
applicable errviromnental laws and requirements and the requirements of all
applicable agencies and that no contamination has occurred or exists within the
Leased Premises or on the property as a result of Tenants, activities, Without
in anyway limiting the obligations of the Tenant, Landlord reserves the right to
enter and inspect the Leased Premises and conduct any testing, samples, borings
and analysis which Landlord, in its sole discretion, may deem necessary. Tenant
further covenants and agrees that it shall not cause or allow any lien to be
recorded against the Leased Premises as a consequence of, or in any way related
to, the presence, remediation or disposal of any hazardous materials in or
relating to the Lcased Premises or the property, or related in any way to the
activities of Tenant, including any mechanics,' materialmans', suppliers'
laborers' liens or any state, federal or local environmental liens relating to
such matters.
Tenant hereby agrees to indemnify and hold harmless Landlord from and
against any and all
87
<PAGE>
losses, costs, damages, claims, penalties, fines, suits, liabilities and
expenses, including cleanup costs, attorney fees, consultants or experts' fees
and expenses of every kind and nature incurred or suffered by or asserted
against Landlord directly or indirectly as a result of or on account of (i) the
location on the Leased Premises or the property of any hazardous material, the
storage of which or the exposure to which is prohibited, limited or regulated by
any Environmental Law or any federal, state, county, regional or local
governmental unit, agency or authority for which storage or exposure, even if
not so prohibited, limited or regulated, may pose a hazard to the health and
safety of the occupants of the property or to that of the owners or occupants of
real property adjacent hereto, or (ii) the failure by Tenant to comply with any
applicable Environmental Laws; or (iii) any warranty or representation made by
Tenant in this paragraph being false or untrue in any material respect. Tenant's
obligation hereunder shall not be limited to any extent by the term of this
Lease, and, as to any act of occurrence prior to the expiration of the term
hereof, whether terminated by Landlord or other expiration pursuant to the terms
hereof and, as to any act or occurrence prior to the expiration of the term
hereof which gives rise to liability hereunder, shall continue, survive or
remain in full force and effect notwithstanding the expiration ofthe terms
hereof.
(a) TENANTS' RESTRICTIONS - Tenant shall not cause or permit to occur:
(i) Any violation of any federal, state or local law, ordinance or regulation
now or hereafter enacted, related to environmental conditions on, under or about
the Premises or arising from Tenants use or occupancy of the Premises, including
but not limited to, soil and ground and water conditions; or
(ii) The use, generation, release, manufacture, refining, production,
processing, storage or disposal of any hazardous substance without Landlord's
prior written consent, wlnch consent may be withdrawn, conditioned or modified
by Landlord in its sole and absolute discretion in order to insure compliance
with all applicable laws (herein defined), as such laws way be enacted or
amended from time to time.
(b) ENVIRONMENTAL CLEAN-UP
(i) Tenant shall at Tenant's own expense, comply with all laws regulating the
use, generation, storage, transportation or disposal of hazardous substance (the
"Law").
(ii) Tenant shall, at Tenant's own expense, make all submissions to, provide all
information required by and comply with all requirements of all governmental
authorities (the "Authorities") under the Laws.
(iii) Should any Authority or any third party demand a cleanup plan be prepared
or undertaken because of any deposit, spill, discharge or other release of
hazardous substances that occurs during the term of this Lease, at or from the
Premises or which arises at any time from Tenants use or occupancy of the
Premises, Tenant shall, at Tenant's own expense, prepare and submit the required
plans and all related bonds and other financial assurances and Tenant shall
carry out all such cleanup plans.
(iv) Tenant shall promptly provide all information regarding the use,
generation, storage, importation or disposal of hazardous substances required by
Landlord. If Tenant fails to fulfill any duty imposed under this Paragraph
within thirty (30) days following its request, Landlord may proceed with such
efforts and in such case, Tenant shall cooperate with Landlord in order to
prepare all documents Landlord deems necessary or appropriate to determine the
applicability of thelaws to the Premises and Tenant's use thereof and for
compliance therewith and Tenant shall execute all documents promptly upon
Landlord's request and any expenses incurred by Landlord shall be payable by
Tenant as Additional Rent. No such action by Landlord and no attempt made by
Landlord to mitigate damages under any Law shall constitute a waiver of any of
Tenant's obligations under this Paragraph. Tenants' obligations and liabilities
under this Paragraph shall survive the expiration of this Lease.
TENANTS INDENMNITY.
88
<PAGE>
(i) Tenant shall indemnify, defend and hold harmless Landlord, its respective
Officers, directors, beneficiaries, shareholders, partners, agents and employees
from all fines, suits, procedures, claims, and activities of every kind and all
costs associated therewith including attorneys' and consultants' fees, arising
out of or in any way connected with any deposit, spill, discharge or hazardous
substances that occur during the term of this Lease, at or from the Leased
Premises which arises out of Tenant's use or occupancy of the Premises or from
Tenant's failure to provide all information, niake all submissions and take all
steps required by all Authorities under the Laws and all other environmental
laws.
(ii) Tenant's obligation and liabilities under this Paragraph shall survive the
expiration or other termination of this Lease.
ARTICLE IV. MAINTENANCE OF LEASED PREMISES
SECTION 4.01. LANDLORDS OBLIGATIONS FOR MAINTENANCE. Landlord shall keep
and maintain the foundation exterior walls, and roof of the building in which
the Leased Premises are located and the structural portions of the Leased
Premises which were originally installed by Landlord, exclusive of doors, door
frames, door checks, windows, and exclusive of window frames located in exterior
building walls, in good repair except that Landlord shall not be called upon to
make such repairs occasioned by the act or negligence of Tenant, its agents,
employees, invitees, licensees or contractors, except to the extent that
Landlord is reimbursed therefore under any policy of insurance permiting waiver
of subrogation in advance of loss. Landlord shall not be called upon to make any
other improvements or repairs of any kind upon said premises and appurtenances,
except as may be required under Articles X and XI hereof
SECTION 4.02. TENANT'S OBLIGATIONS FOR MAINTENANCE.
(a) Except as provided in Section 4.01 of this Lease, Tenant shall keep and
maintain in good order, condition and repair (including replacement of parts and
equipment, if necessary) the Leased Premises and every part thereof and any and
all appurtenances thereto wherever located, including, but without limitation,
the exterior and intexior portion of all doors, door checks, windows, plate
glass, store front, all plumbing and sewage facilities within the Leased
Promises, all fixtures, heating, air conditioning, sprinkler and electrical
systems which service the leased Premises, and all walls, floors and ceilings.
Tenant, upon accepting the Leased Premises, will provide to Landlord a copy of a
heating and air conditioning preventative maintenance contract from a certified
contractor.
(b) Tenant shall keep and maintain the Leased Premises in a clean, sanitary
and safe condition in accordance with the laws of the State of Florida and in
accordance with all directions, rules and regulatins of health officer, fire
marshal, building inspector, or other proper officials of the governmental
agencies having jurisdiction, at the sole cost and expense of Tenant, and Tenant
shall comply with all requirements of law, ordinance and otherwise, affecting
the Leased Premises. If Tenant refuses or neglects to commence and to complete
repairs promptly and adequately, Landlord may, but shall not be required to,
make and complete said repairs and Tenant shall pay the cost thereof to Landlord
upon demand. At the time of the expiration of the tenancy created herein, Tenant
shall surrender the Leased Premises in good condition, reasonable wear and tear,
loss by fire or other unavoidable casualty excepted.
(c) Tenant shall keep and maintain the Leased Premises and all other parts
of the Shopping Center free from any and all liens arising out of any work
performed, materials fumished or obligations incurred by or for Tenant, and
agrees to bond against or discharge any mechanics or materialmaws lien within
thirty (30) days after written request therefore by Landlord. Tenant shall
reimburse Landlord for any and all costs and expenses which may be incurred by
Landlord by reason of the filing of any such liens and/or the removal of same
such reimbursement to be made within thirty (30) days after receipt by Tenant
from landlord of a statement setting forth the amount of such costs and
expenses. The failure of Tenant to pay any such amount to Landlord within said
thirty (30) day period shall carry with it the same consequences as failure to
pay any installment of rental. In no event shall the interest of landlord in all
or any part of the Premises or the building be subjert to any mechanics',
materialmen's, laborers' or other statutory or common law lien for improvements
or work made or done by or at the instance of Tenant, whether or not the same
89
<PAGE>
shall be made or done with the consent of Landlord or by the agreement between
Tenant and Landlord. All persons dealing with or contracting with Tenant or any
contractor of Tenant are hereby put on notice of the foregoing provision.
ARTICLE V. ASSIGNMENT AND SUBLETTING
SECTION 5.01. ASSIGNMENT AND SUBLETING. (a) Tenant shall not assign this
Lease, sublet all or any part of the Leased Premises or otherwise transfer its
interest in the Lease without the prior written consent of Landlord, which
consent shall not be unreasonably withheld. In no event shall any assignment or
sublease of the Leased Premises release or relieve Tenant or any Guarantor of
this Lease from any of their obligations under this Lease, and they shall remain
liable under the Lease as though no assignment or sublease had taken place.
(b) If, at any time, during the term of this Lease, any part or all of its
outstanding voting stock, if Tenant is a corporation, or any interest in the
partnership, if Tenant is a partnership, shall be transferred by sale,
assignment, bequest, inheritance, operation of law or other dispositions so as
to result in a change in the present effective voting control of Tenant by the
person or persons owning a majority of said outstanding voting stock or a
majority interest in the partnership, as the case may be, on the date of this
Lease, then such event shall constitute an assignment for the purposes of this
Lease.
(c) In the case of any permitted assignment or sublease, any proposed
assignee or subtenant of Tenant shall assume Tenants obligations hereunder and
deliver to Landlord an assumption agreement in form satisfactory to Landlord at
least ten (1O) days prior to the effective date of the assignment. The consent
by Landlord to an assignment or subletting and the assumption of Tenant's
obligations by an approved assignee shall not in any way be construed to relieve
Tenant or any other occupant of the Leased Premises from obtaining the express
written consent of Landlord to any further assignment or subletting.
(d) Tenant shall pay to Landlord, Landlord's administrative costs, overhead
and attorneys' fees incurred, in connection with such assignment or subletting.
The acceptance of rent from any other person shall not be deemed to be a waiver
of any of the provisions of the Lease or to be a consent to the assignment of
this Lease or the subletting of the Leased Premises.
ARTICLE VI. INSURANCE, INDEMNITY
SECTION 6.01. LIABILITY INSURANCE. Tenant shall, during the entire term
hereof, keep in full force and effect, a policy, of public liability and
property damage insurance with respect to the Leased Premises; and the business
operated by Tenant and any subtenants of Tenant in the Leased Premises including
steam boiler insurance, if Applicable, in which the limits of public liability
shall be not less than $1,000,000.00 per person and $1,000,000.00 for more than
one person in any one accident and in which the limit of property damage
liability shall not be less than $100,000.00. The policy shall name Landlord or
any other parties in interest designated by Landlord as additional insured(s)
and shall contain a clause that the insurer will not cancel or change the
insurance without first giving the Landlord thirty (30) days prior written
notice. Such insurance may be furnished by Tenant under any blanket policy
carried by it or under a separate policy therefore. A copy of the paid-up policy
evidencing such insurance or a certificate of insurer ccxfifying to the issuance
of such policy shall be delivered to Iandlord prior to commencement of term of
this Lease and upon renewals not less than thirty (30) days prior to the
expiration of such coverage.
SECTION 6.02. PROPERTY INSURANCE. (a) Landlord agrees, during the term
hereof, to carry insurance against fire, vandalism, malicious mischief and such
other perils as are from time to time included in a standard extended coverage
endorsement.
(b) Tenant agrees to carry, at its expense, insurance against fire,
vandalism, malicious mischiefs and such other perils as are from time to time
included in a standard extended coverage endorsement, insuring Tenant's
merchandise, trade fixtures, furnishishings, equipment and all other items of
personal property of Tenant located on or within the Leased Premises, in an
amount equal to not less than eighty percent (80%) of the actual replacement
costs thereof and to furnish Landlord with a certificate evidencing such
coverage.
90
<PAGE>
(c) Tenant shall not carry any stock of goods or do anything in or about
the Leased Premises which will in any way tend to increase the insurance rates
on said premises and/or the building of which they are a part. If Tenant
installs any electrical equipment that overloads the lines in the Leased
Premises, Tenant shall, at its own expense, make whatever changes are necessary
to comply with the requirements of the insurance underwriters and governmental
authorities having jurisdiction.
SECTION 6.03. COVENANT TO HOLD HARMLESS. Tenant will indemnify Landlord and
save it harmless from and against any and all claims, actions, damages,
liability and expense in connection with loss of life, personal injury and/or
damage to property, arising from or out of any occurrences in, upon or at the
Leased Premises, provided, however, that Tenant shall not indemnify Landlord
against the acts and/or omissions of Landlord, its agents, employees, invitees,
licensees or contractors. For the purpose hereof, the Leased Premises shall
include the service areas adjoining the same and the loading platform area
allocated to the use of the Tenant. In case Landlord shall be made a party to
any litigation conunenced by or against Tenant, then Tenant shall protect and
hold Landlord harmless and shall pay all costs, expenses and reasonable
attorneys' fees incurred or paid by Landlord in connection with such litigation.
ARTICLE VII. ESTOPPEL LETTER, ATTORNMENT
AND SUBORDINATION
SECTION 7.01. ESTOPPEL LETTER. Tenant agrees within ten (10) days after
receipt of written request therefore by Landlord to execute in recordable form
and deliver to Landlord a statement, in writing, certifying among other items
required by Landiord or third parties, (a) that this Lease is in full force and
effect, (b) the date of commencement of the term of this Lease, (c) that rent is
paid currently without any offset or defense thereto, (d) the amount of rent, if
any, paid in advance, and (e) that there are no uncured defaults by Landlord or
stating those claimed by Tenant, provided that, in fact such facts are accurate
and ascertainable.
SECTION 7.02. ATTORNMENT. Tenant shall, in the event any proceedings are
brought for the foreclosure of or in the event of exercise of the power of sale
under any mortgage made by Landlord covering the Leased Premises, attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as the
Landlord under this Lease.
SECTION 7.03. SUBORDINATION. Tenant agrees that this Lease shall, at the
request of the Landlord, be subordinate to all mortgages or deeds of trust that
may hereafter be placed upon said premises and to any and all advances to be
made thereunder, and to the interest thereon, and all renewals, replacements and
extensions thereof. Tenant also agrees that any mortgagee or trustee may elect
to have the Lease a prior lien to its mortgage or deed of trust, and in the
event of such election and upon notification by such mortgagee or trustee to
Tenant to that effect, this Lease shall be deemed prior to the said mortgage or
deed of trust, whether this Lease is dated prior to or subsequent to the date of
said mortgage or deed of trust Tenant agrees, that upon request of Landlord, any
mortgagee or any trustee it shall execute whatever instruments may be required
to carry out the intent of this Section.
SECTION 7.04. REMIDIES. Upon failure of the Tenant to execute any of the
above instruments within fifteen (15) days of written request to do so by
Landlord, Tenant hereby irrevocably appoints Landlord as attorney-in-fact for
the Tenant with full power and authority to execute and deliver in the name of
the Tenant any such instruments.
ARTICLE VIII BANKRUPTCY OR INSOLVENCY
SECTION 8.01. TENANT'S INTEREST NOT TRANSFERABLE. Neither this Lease, nor
any interest therein nor any estate thereby created shall pass to any trustee or
receiver or assignee for the benefit of creditors or otherwise by operation by
law.
91
<PAGE>
SECITON 8.02. TENANT'S OBLIGATION TO AVOID CREDITORS'PROCEEDINGS. Tenant or
Tenant's Guarantor, if any, shall not cause or give cause for the institution of
legal proceedings seeking to have Tenant or Tenant's Guarantor, if any,
adjudicated bankrupt, reorganized or rearranged under the bankruptcy laws of the
United States, and shall not cause or give cause for the appointment of a
trustee or receiver for the assets of Tenant or Tenant's Guarantor, if any, and
shall not make any assignment for the benefit of creditors or become or be
adjudicated insolvent. The allowance of any petition under the bankruptcy law,
or the appointment of a trustee or receiver of Tenant or Tenant's Guarantor, if
any, or its assets, shall be conclusive evidence that Tenant caused, or gave
cause therefore, unless such allowance of the petition, or the appointment of a
trustee or receiver, is vacated within thirty (30) days after such allowance or
appointment. In the event the estate created hereby shall be taken in execution
or by other process of law, or if Tenant or Tenant's Guarantor, if any, shall be
adjudicated insolvent or bankrupt pursuant to the provisions of any state or
federal insolvency or bankruptcy act, or if a receiver or trustee of the
property of Tenant or Tenant's Guarantor, if any, shall be appointed by reason
of the insolvency or inability of Tenant or Tenant's Guarantor, if any, to pay
its debts or if any assignment shall be made of the property of Tenant or
Tenant's Guarantor, if any, for the benefits of creditors, then and in any such
events, Lanord may at its option terminate this lease and all rights of Tenant
hereunder, by giving to Tenant notice in writing of the election of Landlord to
so terminate.
SECTION 8.03. UNENFORCEABILITY. In the event any of the provisions of fts
Article are unenforceable under applicable bankruptcy laws, Landlord shall be
entitled to exercise any and all remedies available to Landlord pursuant to such
laws.
ARTICLE IX. DEFAULT OF THE TENANT
SECTION 9.01. LANDLORD'S RIGHTS UPON DEFAULT. In the event Tenant fails to
pay any rental or other charges due hereunder, or in the event Tenant fails to
perform any other of the terms, conditions or covenants of this Lease to be
observed or performed by Tenant, or if Tenant shall abandon the Leased Premises,
or permit this Lease to be taken under any writ of execution, each of said
events shall constitute a default of Tenant. Tenant shall have thirty (30) days
after written notice of default, other than any default in the payment of any
monetary obligations, within which to cure the same or failing to cure, the
Landlord, besides other rights or remedies it may have, shall have any and all
ofthe following rights:
(a) To re-enter and remove all persons and property from the Leased
Premises, and such property rnay be removed and stored in public warehouse or
elsewhere at the cost of and for the account of Tenant, all with service of
notice or resort to legal process and without being deemed guilty of trespass,
or becoming liable for any loss or damage which may be occasioned thereby
Landlord's entry into the Leased Premises shall not be construed a termination
of this lease, and this Lease may not be terminated in the event of default
except by a written instrument posted by Landlord on the entrance to the Leased
Premises.
(b) Terminate the Lease and relet the Leased Premises for account of the
Landlord or in the sole discretion of Landlord, relet the Leased Premises for
the account of the Tenant without such termination. In the event that the Leased
Premises are let for the account of the Tenant, Tenant shall continue to be
liable for the deficiency between the sums actually received by Landlord as a
result of such letting and the sum that would be due for the same period from
Tenant according to the terms of this Lease.
SECTION 9.02. RIGHT TO RELET. Should landlord elect to re-enter, as herein
provided or should it take possession pumuant to legal proceedings or pursuant
to any notice provided for by law, it may either terminate this Lease or it may
from time to time, without terminating this Lease, make such alterations and
repairs as may be necessary in order to relet the Leased Premises, and relet
said Premises or any part thereof for such term or terms (which may be for a
term extending beyond the term of the Lease) and at such rental or rentals and
upon such other terms and conditions as Landlord in its sole discretion may deem
advisable. Upon each such reletting all rentals and other sums received by
Landlord from such relctting shall be applied, first, to the payment of any
indebtedness other than rent due hereunder from Tenant to landlord; second, to
the payment of any costs and expenses of such reletting, including reasonable
brokerage fees and attorneys' fees and of
92
<PAGE>
costs of such alterations and repairs; third, to the paynent of rent and other
charges due and unpaid hereunder, and the residue, if any, shall be held by
Landlord and applied in payment of future rent as the same may become due and
payable hereunder. If such rentals and other sums received from such reletting
during any month be less than that to be Paid during that month by Tenant
hereunder, Tenant shall pay such deficiency to Landlord. Such deficiency shall
be calculated and paid monthly. No such re-entry or taking possession of the
Leased Premises by Landlord shall be construed as an election on its part to
terminate this Lease for any breach, in addition to any other remedies it may
have, it may recover from Tenant all damages it may incur by reason of such
breach, including the cost of recovering the Leased Premises, reasonable
attorneys' fees, and including the worth at the time of such termination of the
excess, if any, of the amount of rent and charges equivalent to rent reserved in
this Lease for the remainder of the stated term over the then reasonable rental
value of the Leased Premises for the remainder of the stated term, all of which
amounts shall be payable monthly from Tenant to Landlord. In determining the
rent which would be payable by Tenant thereunder, subsequent to default, the
annual rent for each year of the unexpired term shall be equal to the average
annual minimum and percentage rents, if any, paid by Tenant from the
commencement of the term to the time of default, or during the preceding three
(3) fial calendar years, whichever period is shorter.
SECTION 9.03. LEGAL EXPENSES. In the event that it shall become necessary
for either Landlord or Tenant to employ the services of attorneys to enforce any
of their respective rights under this Lease or to collect any sums due to them
under this Lease or to remedy the breach of any covenant of this Lease on the
part of the other to be kept or performed, the non-prevailing party (Tenant or
Landlord as the case may be) shall pay to the prevailing party's attorneys for
such services at all trial and appellate levels and post judgment proceedings
and such prevailing party shall also have and recover from the non-prevailing
party (Landlord or Tenant as the case may be) all other costs and expenses of
such suit and any appeal thereof or with respect to any post judgment
proceedings.
SECTION 9.04. SECURITY DEPOSIT. The Landlord herewith acknowledges receipt
of Three Thousand Seven Hundred Thirty-one and 38/100 Dollars ($3,731.38) which
it is to retain as security for the payment of rent (whether accrued or to
accrue and whether becoming due before or after termination of this Lease) and
for the faithful performance of all covenants, conditions and agreements of this
Lease, but in no event shall the Landlord be obliged to apply the same upon
rents or other charges in arrears or upon damages for the Tenant's failure to
perform the said covenants, conditions and agreements; the Landlord may so apply
the security, at its option and the Landlord's right to the possession of the
Leased Premises for nonpayment of rent or for any other reason shall not in any
event be affected by reason of the fact that Landlord holds this security. The
said sum, if not applied toward the payment of rent in arrears or toward payment
of damages suffered by the Landlord by reason of the Tenant's breach of the
covenants, conditions and agreements of this Lease shall be returned to the
Tenant without interest within thirty (30) days after Tenant has vacated the
premises and delivered possession to the landlord and Landlord has accepted
same. In the event that the Landlord retakes possession of the Leased Premises
because of the Tenant's default or because of Tenant's failure to carry ouit the
covenants, conditions and agreements of this Lease, the Landlord may apply the
said security upon all damages suffered to the date of said repossession and may
retain the said security to apply upon such damages as may be suffered or shall
accrue thereafter by reason of the Tenant's default or breach.
SECTION 9.05. CUMULATIVE REMEDIES. The rights and remedies given to
LaNdlord by this Lease shall be deemed to be cumulative and in addition to such
other rights and remedies as may be prescribed under the laws of the
jurisdiction where the Leased Premises are situated, and no one of such rights
and remedies shall be exclusive at law or in equity of the right and remedies
which Landlord might otherwise have by virtue of a default under its Lease, and
the exercise of one such right or remedy by Landlord shall not impair Landlords
standing to exercise any other right or remedy.
ARTICLE X. DESTRUCTION OF LEASED PREMISES
SECTION 10.01. RECONSTRUCTION OF DAMAGED PREMISES, In the event the Leased
Premises shall be partially or totally destroyed by fire or other casualty
93
<PAGE>
insured under the insurance carried by Landlord pursuant to this Lease, as to
become partially or totally imtenantable, the damage to the Leased Premises
shall be promptly repaired by Landlord, unless Landlord shall elect not to build
as hereinafter provided, and a just and proportionate part of the fixed minimum
rental and all other charges shall be abated until so repaired. In no event
shall Landlord be required to repair or replace Tenant's merchandise, trade
fixtures, furnishings or equipment. If more than thirty-five percent (35%) of
the Leased Premises or more than thirty-five percent (35%) of the floor area of
the building in which the leased Premises are located shall be destroyed by fire
or other casualty, or if, during the last one (1) year of the term hereof, more
than twenty-five percent (25%) of the Leased Premises or of the floor area of
the building in which the Leased Premises are located shall be damaged or
destroyed by fire or other casualty, then Landlord may elect either to repair or
rebuild the Leased Premises or the building of which the Leased Premises are a
part, as the case may be, or to terminate this by giving written notice to
Tenant of its election to so terminate, such notice to be given within ninety
(90) days after the occurrence of such damage or destruction. If Landlord is
required or elects to repair or rebuild the Leased Premises as herein provided,
Tenant shall repair or replace its merchandise, trade fixtures, furnishing and
equipment in a manner and to at least a condition equal to that prior to its
damage or destruction.
SECTION 10.02. WAIVER OF SUBROGATION. Eacb party hereto does hereby remise,
release and discharge the other party hereto and any officer, agent, employee or
representative of such party, of and from any liability whatsoever hereafter
arising from loss, damage, or injury caused by fire or other casualty for such
insurance (permitting waiver of liability and containing a waiver of
subrogation) is carried by the injured party at the time of such loss, damage or
injury to the extent of any recovery by the injured party under such insurance.
SECTION 10.03. FLOOR AREA "Floor Area" as used in this Lease means with
respect to the Leased Premises and with respect to each store area separately
leased, the number of square feet of floor space on all floor levels in the
Leased Premises, including any mezzanine space, measured from the exterior faces
of exterior walls, store fronts, corridors and service areas, and the center
line of party walls. No deduction or exclusion from floor area shall be made by
reason of columns, stairs, shafts or other interior construction or equipment.
ARTICLE XI. EMINENT DOMIAIN
SECTION 11.01. TOTAL CONDENINATION OF LEASED PREMISES. If the whole of the
Leased Premises shall be taken by any public authority under the power of
eminent domain, then the term of this Lease shall cease as of the day possession
shall be taken by such public authority and the rent shall be paid up to that
day with proportionate refund by Landlord of such rent as may bave been paid in
advance for a period subsequent to the date of the takings.
SECTION 11.02. PARTIAL CONDEMNATION. If any part of the Leased Premises
shall be taken under eminent domain, or if less than the whole but more than
forty percent (40%) of the common areas shall be taken under eminent domai
Landlord and Tenant shall each have the right to terminate this lease and
declare the some null and void, by written notice of such intention to the other
party within ten (10) days after such taking. In the event neither party
exerrcises said right of termination, the Lease shall cease only on the part so
taken as of the day possession shall be taken by such public authority and
Tenant shall pay rent up to that day, with appropriate rcflmd by landlord of
such rent as may have been paid in advance for a period subsequent to the date
of the taking, and thereafter all the terms herein provided shall continue in
effect, except that the fixed minimum annual rental shall be reduced in
proportion to the amount of the Leased Premises taken and Landlord shall, at its
own cost and expense, make all the necessary repairs or alterations to the basic
building as originally installed by Landlord, so as to constitute the remaining
Leased Premises a complete architectural unit. In the event neither party has
the right to terminate the Lease, as provided above, then the provisions of this
Lease shall remain in full force and effect.
SECTION 11.03. LANDLORD'S AND TENANT'S DAMAGES. All damages awarded for
such taking under the power of eminent domain, whether for the whole or a part
of the leased Premises, shall belong to and be the property of Landlord whether
such damages shall be awarded as compensation for diminution in value to the
Leasehold or to the fee of the Premises and Tenant hereby waives all rights it
may have to an award for the value of its leasehold hereunder,
94
<PAGE>
provided, however, that Landlord shall not be entitled to the award made for
depreciation to, and cost of removal of Tenaufs stock and fixtures.
ARTICLE XII. MISCELLANEOUS
SECTION 12.01. WAIVER. One or more waivers of any covenant or condition by
Landord shall not be construed as a waiver or subsequent breach of the same
covenant or condition, and the consent or approval by Landlord to or of any act
by Tenant requiring Landlord's consent or approval shall not be deemed to render
unnecessary Landlord's consent or approval to or of any subsequent similar act
by Tenant. No breach of a covenant or condition of this Lease shall be deemed to
have been waived by Landlord, unless such waiver be in writing and signed by
Landlord.
SECTION 12.02. ENTIRE AGREEMENT. This Lease and the Exhibits and Addenda,
if any, attached hereto and forming a part hereof, set forth all the covenants,
promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Leased Premises and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them other than
are herein set forth. No alteration amendment, change or addition to this Lease
shall be binding upon Landlord or Tenant unless reduced to writing and signed by
each party.
SECTION 12.03. INTERPRETATION AND USE OF PRONOUNS. Nothing contained herein
shall be deemed or construed by the parties hereto, nor by any third 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, nor
any acts of the parties herein, shall be deemed to create any relationship
between the parties hereto other than the relationship of landlord and Tenant.
Whenever herein the singular number is used, and the same shall include the
plural, and the masculine gender shall include the feminine and neuter genders.
SECTION 12.04. DELAYS. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of this
Lease, then performance of such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay. The party entitled to such
extension hereunder shall give written notice as soon as possible to the other
party hereto of its claim of right to such extension and the reason(s)
therefore. The provisions of this Section shall not operate to excuse Tenant
from prompt payment of rent, or any other payments required by the terms of this
Lease.
SECTION 12.05. NOTICES. Any notice, demand, request, or other instrument
which may be or is required to be given under this Lease shall be sent by United
States certified mail, return receipt requested, postage prepaid and shall be
addressed (a) if to Landlord, at the address first hereinabove given, or at such
other address as Landlord may designate by written notice, and (b) if to Tenant,
at the address first bereinabove given, or at such other address as Tenant shall
designate by written notice. All lease payments shall be directed to Landlord at
the address first hereinabove given.
SECTION 12.06. CAPTIONS AND SECTION NUMBERS. The captions, section numbers
and article numbers, appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such sections or articles of this Lease, nor in any way affeot this
Lease.
SECTION 12.07- BROKERS COMMISSION. Each of the parties represents and
warrants that there are no claims for brokerage commissions in connection with
the execution of this Lease, except by Suncor Properties, Inc., who is the agent
and representative of Landlord. Each of the parties agrees to indemnify the
other against and hold it harmless from all liabilities arising from any such
claim including without limitation, the cost of counsel fees in connection
therewith).
95
<PAGE>
SECTION 12.08. RECORDING. Tenant shall not record this Lease without the
written consent of Landlord, however, upon the request of either party hereto,
the other party shall join in the execution of a memorandum or so-called
"Short-form" of this Lease for the purposes of recordation. Said memorandum or
short form of this Lease shall describe the parties, the Leased Premises, the
terim of this Lease, any special provisions, shall provide that the interest of
the Landlord shall not be subject to liens for improvements made by the Tenant,
and shall incorporate this Lease by reformce.
SECTION 12.09. TRANSFER OF LANDLORD'S INTEREST. In the event of any
transfer or transfers of Landlord's interest in the Leased Premises, the
transferor shall be automatically relieved of any and all obligations and
liabilities on the part of Landlord accruing from and after the date of such
transfer.
SECTION 12.10. LIABILITY OF LANDLORD. If Landlord shall fail to perform any
covenant, term or condition of this Lease upon Landlords part to be performed,
and if as a consequence of such default Tenant shall recover a money judgment
against Landlord, such judgment shall be satisfied only out of the proceeds of
sale received upon execution of such judgment and levied thereon against the
right, title and interest of Landlord in the Shopping Center and out of rents or
other income from such property receivable by Landlord, or out of the
consideration received by Landlord from the sale or other disposition of all or
any part of Landlord's right, title and interest in the Shopping Center, and
neither Landlord nor any of the co-partners comprising the partnership which is
the Landlord herein shall be liable for any deficiency. The interest of the
Landlord shall not be subject to liens for improvements made by the Tenant.
SECTION 12.11. EXECUTION OF LEASE. The submission of this lease for
examination does not constitute a reservation of or option for the Leased
Premises and this Lease shall became effective as a lease only upon execution
and delivery thereof by Landlord.
SECTTON 12.12. LAWS. This Lease shall be governed by, and construed in
accordance with the laws of the state in which the Shopping Center property is
located. If any provision of this Lease or the application thereof to any person
or circumstances shall to any extent, be invalid or unenforceable, the remainder
of this Lease shall not be affected thereby and each provision of the Lease
shall be valid and enforceable to the fullest extent permitted by the Law.
SECTION 12.13. HOLDING OVER. Any holding over after the expiration of the
term hereof with the consent of the Landlord, shall be construed to be a tenancy
from month-to-month (at the monthly minimum rental herein specified), and shall
otherwise be on the same terms and conditions herein specified so far as
applicable.
SECTION 12.14. SUCCESSORS. All rights and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators. successors, and assigns of the said
parties; and if there shall be more than one Tenant, they shall be bound jointly
and severally by the terms, covenants and agreements herein. No rights, however,
shall inure to the benefit of any assignee of Tenant unless the assignment to
such assignee has been approved by landlord in writing as provided for herein.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of The
day and year first above written.
In the Presence of: LANDLORD: SUNCOR OF HEATHROW, LTD,
By: Suncor of Heathrow, Inc., General Partner
/s/ Tammy Sundstrom By: /s/
-------------------- ------------------------------
TENANT: INTERNATIONAL SOLUBLES
/s/ Tammy Sundstrom By: /s/ L. Henry Sarmlento
-------------------- ------------------------------
96
<PAGE>
GUARANTY
In consideration of Ten and No/100 Dollars ($10.00), and other good and
valuable consideration, including the execution of the attached Lease, and the
extension of credit, from time to time, by Landlord to Tenant and as an
inducement to Landlord to enter into said Lease, which Lease shall personally
benefit the undersigned, the undersigned and each of them jointly and severally
guarantee the due payment and performance by said Tenant of all monies to be
paid, and all things to be done, pursuant to each and every condition md
covenant contained in said Lease, including attorneys' fees due under said Lease
or incurred in the enforcement of this Guaranty, The undersigned agree that
their liability hereunder is direct and conditional and may be enforced without
requiring Landlord to resort to any other right, remedy or security. This
Guaranty and all guarantors herein are their joint and several, original and
separate undertakings made without reference to performance by Tenant, and the
guarantors covenant and agree that this Guaranty shall remain and continue in
full force and effect as to any renewal, modification or extension of this Lease
Without any requirement of notice to or consent from the guarantors.
Dated this 25 day of July, 2000
L. Henry Sarmlento
-------------------------------
97
